UNITED JEWISH ORG. OF WILLIAMSBURGH v. CAREY

Transcript: 

Argument of Nathan Lewin

Chief Justice Warren E. Burger: We will hear arguments next in 75-104, United Jewish Organization against Carey.

I think you may proceed now whenever you are ready Mr. Lewin.

Mr. Lewin: Thank you Mr. Chief Justice and may it please the Court.

The constitutional issue presented by this case which is here on certiorari to the Court of Appeals for the Second Circuit is whether a legislative apportionment which deliberately limits the white population of certain assembly and senate districts for New York State to not more than 35% of the total number of citizens in each of those districts is consistent with Fourteenth and Fifteenth Amendments.

A majority of the court below, two judges, said that our argument that such districting is unconstitutional has “intellectual appeal on the surface”, and even the Solicitor General in his brief says that our contention has “considerable superficial appeal”.

Each then proceeds with an involved effort to justify what was done here by the New York Legislature.

In each case, we submit the effort simply fails.

We believe that the instinctive response to this set of facts, the simple reaction that such a districting scheme cannot be correct and cannot be constitutionally valid is the proper result, and that the contrary view is not what Congress contemplated in the Voting Rights Act and not what is contemplated by the Fifteenth Amendment.

Justice William H. Rehnquist: Mr. Lewin, in you opening statement you said deliberately.

What do you mean by way of intent or knowledge or that sort of thing by the use of that adverb?

Mr. Lewin: By the use of that adverb, Mr. Justice Rehnquist, I mean that the individuals drawing that line had that as the primary and dominant criterion in their mind.

They said not the result of what we have done is by happen stands or because it is one of many factors to produce a not more than 35% white citizenry in that district, but that is what we are going to achieve, that is what we intent to achieve.

Districts that will have not more than 35% whites in them, and that is what I mean by deliberate.

I think more so than any other that has previously been before this Court where allegations of racial gerrymandering have been made, the record in this case is undisputed.

I think there is really no question about the fact that the individual responsible for drawing the lines did it for that reason, and I would say, almost that reason only, that is why the line was drawn.

Justice William H. Rehnquist: But if we adopt your principle, then I suppose in all future cases like this the committee chairman, perhaps the legislators themselves, could be examined on depositions as to what their primary motive was when they voted this or whey they sat on committee and decided to recommend this.

Mr. Lewin: I think in the ordinary case Mr. Justice Rehnquist, there is a lot of difficulty in determining what such a motive is, that is why this Court has prevented interrogations or investigations of legislative motive, because there is a variety of motives that combine to produce a particular result, and there is really no way to knowing what a legislature has done, but in this case, there is just no question.

Where, in the unique cases as this one is, where the legislative purpose is set out and is stated in the legislative record, and is not disputed, we believe it is entirely proper for the Court to say, may a legislature do this, is it permissible for a legislature to act in that way.

We think on that account that our claim is really quite different from what the white respondents would like to characterize our claim.

Both the Solicitor General and the NAACP, which is intervener in this case in its brief, have been asserting I think throughout that our contention is that legislators may not take account in some way that legislators of course do in the real world of what the racial distribution is of districts which result from apportionment.

We are not saying that they may not review a Census maturity when others know what is happening.

What our argument is, is that that may not the criterion, the principle standard and guideline that they are using.

Chief Justice Warren E. Burger: Here you don’t have to call on any subjective factors, that is what you are saying, isn’t it?

Mr. Lewin: That is absolutely right Mr. Chief Justice.

In this case there are no subjective factors; there is no dispute as to the fact.

Justice William H. Rehnquist: If you lay down a principle, as you say in this case, that were the primary factor that they considered was what you have outlined.

In any future case, on the basis of normal rules of evidence, you are going to open up to prove on the part of the plaintiffs the issue of whether or not this or that was the primary in fact.

Mr. Lewin: I must say Mr. Justice Rehnquist, it seems to me that the courts can setup a threshold which you have to meet with the preliminary showing before you can engage in such an investigation.

I do not think we are suggesting that it would be open for any plaintiff and come in and say, I will put the entire legislature on the stand and interrogate them as to their motive.

In this case we have I think from the legislative report itself from the undisputed history of how this apportionment developed the necessary inference that any court and indeed the defendants I think admitted as much in their answer.

Chief Justice Warren E. Burger: Now, you do not need to go beyond the proposition that where it appears on the face of the legislative record that this was the purpose.

Would that take care of the subjective problem that Mr. Justice Rehnquist raises?

Mr. Lewin: Yes, I think it would Mr. Chief Justice and we would accept that test certainly that where it appears on the face of the reports on the legislative record that that is what the legislature is doing then it is impermissible.

And then maybe the burden falls on the other side which was represented in Court.

I mean that is one of the reasons really that we filed this suit against the Attorney General.

We are here being challenged in this Court over the fact that the Attorney General is a party.

Well, one of the reasons why the suit was filed against the Attorney General was precisely to afford all parties an opportunity to come in and explain whether there was any justification for this and there was no justification for this apportionment and no justification for what preceded.

And that is why the record comes to this Court in its present state, where the facts are undisputed and lead invariably to that one conclusion.

Chief Justice Warren E. Burger: But couldn’t you have intervened in the action by the State against the Attorney General when the State was challenging the Attorney General’s rather amorphous reaction to its districting plan?

Mr. Lewin: There are two reasons why we could not do that: One is that unfortunately the State, because of the exigencies of time, never challenged.

They never took it to court, and when several legislators who were dissatisfied with what the Attorney General had done, had instituted a suit in the District Court.

It was dismissed for the lack of standing.

But the second more important reason really is that we did not know, my clients did not know what the product was going to be of the Attorney General’s decision.

It was not until the New York State Assembly sat down in several very frenzy days in May and determined that they were going to draw the line in these legislative districts in such a manner that this community will split in half between two districts that we even knew what had happened.

That we even knew that there was anything to complain about.

We would, simply along with all other citizens of New York, possibly or many of the citizens of New York have supported the 72 reapportionment, but until the 74 reapportionment was enacted we just did not know what it was going to do to us.

Let me just briefly then describe what exactly happened with these apportionment and then proceed to outline the relationship between the 74 apportionment and the prior Attorney General’s decision under the Voting Rights Act, relations that is important both to our position and to that of the respondents.

The page 173 of the appendix in this Court appears, a large map of the Borough of Brooklyn and its assembly districts.

Justice Potter Stewart: Where is this appears?

Mr. Lewin: Page 173 of the appendix.

Justice Potter Stewart: Thank you.

Mr. Lewin: The area that we are concerned with in this litigation is the one that appears at the upper most, the northern section of the district’s marked 57 and 56.

It is really a triangular area that runs just above the United States Navy Yard and is divided under this 1970 reapportionment by the heavy black line that divides lines 57 and 56, and it is in that area, that triangle where the plaintiffs in this case reside.

Now when that map is compared with the assembly line map that appears at page 197 of the record, then it is quite plain what has happened by reason of the 1974 apportionment.

Page 197 of the record contains the assembly lines as they appeared under the 1972 reapportionment.

The entire triangular section on page 197 is all included within assembly district number 57, so that under the 1972 district -- the map is headed Borough of Brooklyn City of New York 1971 and it is marked at plaintiff's exhibit four but that was a 1972 reapportionment.

That triangular section was all within the 57th assembly district.

Justice Potter Stewart: Would you point out with your finger what you were calling the triangular section?

Mr. Lewin: This section right there Mr. Justice Stewart.

Justice Potter Stewart: Thank you.

Mr. Lewin: Which is in the upper northeast corner of the 57th assembly district under the 1972 reapportionment, and up here it splits between the 56th and 57th districts under the 1974 reapportionment.

I will not refer at this time to the corresponding senate districts which appear at pages 174 and 198 of the record, but they do the same thing.

They do the same thing.

In the 1972 reapportionment that triangular section was all in the 17th senate district and in the 1974 apportionment it was divided by a line drawn approximately at the same place as the assembly line between the 23rd and 25th assembly districts, senate districts I am sorry, 23rd and 25th senate districts.

What was the effect of that drawing of lines on the population in those districts?

The assembly districts under the 1972 reapportionment in which the plaintiffs had found themselves was 38.5% white, in other words 61.5% nonwhite according to the testimony below.

The plaintiffs were in a minority, but a minority that was greater than 35%, in their assembly district under the 1972 apportionment.

In order to achieve compliance with what the Department of Justice thought was an inadequate racial distribution, they were split into two assembly districts in one of which the white population was under 12%, 11.9%, and in the other one of the which it was exactly 35%, precisely in order to meet, and the testimony here in the record by the man who drew the lines was that he went block by block until he achieved precisely 65% nonwhite population, and that is why both assembly districts now in which the plaintiffs find themselves are 35% or less white.

They were, under the 1972 apportionment in a senate district that was approximately 65% white that was the 17th senate district.

They are now, under the 1974 apportionment, in two districts one of which is 28.9%, under 30%.

The other one of which is approximately the same as the other, the earlier 17th senate district, it is 65% white.

So, they are now in two senate districts one of which with a very small white population, again meeting that 65:35 standard, under 30%.

Justice William J. Brennan: Mr. Lewin did someone certainly misrecord who it was that told the draughtsman of the 74 apportionment that they should have 65% nonwhite.

Mr. Lewin: I think Mr. Justice Brennan that the record certainly contains no uncertainty.

The Mr. Scolaro testified that he had several meetings with representatives of the Department of Justice.

He testified I think in some detail as a matter of fact as to the nature of the conversation.

He said we have talked to -- I asked them what percentage is needed, and they said…

Justice William J. Brennan: Well, in other word, the choice of the 65, the suggestion of his testimony is was that really compelled by suggestions from the Justice Department.

Mr. Lewin: Yes it was, and I said it is 70% of white, this is at page 105 of the appendix.

I said, how much higher do you really have to go, and his point was -- one of these districts is 61.5% nonwhite, how much higher do you have to go?

Is 70% alright?

They did not say yes or not, but they indicated it is more inline with the way we think in order to affect the possibility of a minority candidate being elected within that district.

I suggested 65%.

It came out at that time that is a figure used by NAACP in numerous briefs and other documents.

So, it was the product of his discussions.

At other portions of his testimony, he indicated that it was entirely as a result of those discussions, although he could not pinpoint a particular conversation that he came away with the 65% figure.

Now, the Department of Justice, again I have to emphasize, was present at this hearing.

There was an Assistant United States Attorney at the hearing.

United States Department of Justice had every opportunity to put on attorneys of the Department of Justice Civil Rights Division if they made no such suggestion to Mr. Scolaro and to refute that testimony.

Mr. Scolaro was, by no means, a friendly witness.

He was the man who had drawn the lines for the New York State assembly district.

There was only silence from the Department of Justice, and now in the appellate stages, both in the Court of Appeals and in this Court, everyone is pointing the finger at everyone else.

The Department of Justice says, well no the State people did it, we just said the old one was no good, and the State people are saying, well, no we thought the old reapportionment was fine, it was only those people of Department of Justice, and then the plaintiffs are told, well, you cannot sue the Attorney General and you do not have any claim against the State officials either to remedy this dictated quota which somebody clearly imposed because it was definitely used on a block-by-block basis…

Justice William J. Brennan: Mr. Lewin Do you think the quota is in every sense mean improper in reapportionment cases?

Mr. Lewin: Our initial agrument, Mr. Justice Brennan, is yes that in every instance racial quotas are improper in reapportionment cases.

It would be appropriate and we try to point up an analogy to within the employment situation.

It would be appropriate, we think, for a legislature to say, we are drawing up a districting scheme and we will look to see what effect that districting scheme has on racial distribution.

If it seems to have as an employee or might by looking at his workforce say, look this seems to work a diminution of what should be minority voting, we have to make corrections.

I think in those circumstances it maybe a test, it maybe looked to, it maybe considered.

Justice William J. Brennan: I think what you just said, I gather you are suggesting there might be appropriate justifications, but that at least the burden would be upon the user of the quota to justify its uses, is that it?

Mr. Lewin: Well, we try Mr. Justice Brennan, think of possibility where there might be a justification and I am hard-pressed and I do not think that respondents have come up with any suggestion of a justification of something that might warrant a legislature from saying, we will apply a quota in the voting area, because we think…

Justice Byron R. White: Do you think that Section 5 is co-terminus with the constitutional command?

Mr. Lewin: Well, Your Honor I think…

Justice Byron R. White: Do you think every violation of Section 5 has to be a constitutional violation?

Mr. Lewin: Probably under this Court’s decision, certainly under Georgia and United States and the shift of the burden of proof that has authorized under it -- Section 5 goes beyond the Constitution probably.

Justice Byron R. White: Well, suppose in the Beer case, suppose in the Beer case in order to not to diminish the black representation, in that case it was necessary as a statute to comply with Section 5 to take specific, draw a line specifically based on race, and yet no one would have claimed there is a constitutional violation.

Are you suggesting that Section 5, in those applications, is unconstitutional?

Mr. Lewin: No, I do not think we are suggesting, I do not think we have to reach it in this case Your Honor.

Justice Byron R. White: You were saying your initial argument is that never a quota is permissible, but in that case, in the Beer case it might be true that in order to comply with Section 5 you would have to draw the districts based on racial composition, specifically and with that purpose in mind.

Mr. Lewin: Well, the unusual cases, I think the annexation cases or another set of situation where it might be possible…

Justice Byron R. White: The Richmond case.

Mr. Lewin: Right, Richmond and the City of Petersburg where it might be possible to think of a reason, an unusual situation where…

Justice Byron R. White: Well, the reason is that the statute commands it and as construed by the Court and your suggestion is as construed the statute unconstitutional.

Mr. Lewin: I do not think we have to reach that case on these facts Mr. Justice White.

I think that the general rule is to reapportionment accepted…

Justice Byron R. White: Well, then sometimes if you do not reach it then you must concede that sometimes it is alright and sometimes it is not.

Mr. Lewin: We think that certainly a very heavy burden against it.

Justice William J. Brennan: Well, I know that Mr. Lewin, I take to level four but anyway.

If we do not agree with you on your…

Mr. Lewin: Absolutely, that is right.

Justice William J. Brennan: I suggest that perhaps in some cases it is appropriate, if justified.

I gather you are (Inaudible) my position is but no one is, neither State nor the Attorney General has attempted to justify what was done here.

Mr. Lewin: That is true.

We think in this case the…

Justice William J. Brennan: Well, the argument is at least made that we did this to try to comply with Section 5.

Mr. Lewin: Well, but the only thing that complies…

Justice William J. Brennan: Well, isn’t that the argument?

Mr. Lewin: That is the argument, but the only that compliance with Section 5 required was that New York enacts a statue, which it could sustain if not through the Attorney General, through the declaratory judgment action in a Federal Court.

The Attorney General made no finding that the earlier statue and this is our second argument, that the Attorney General made nor finding that the earlier statute did have the effect of discriminating on account of litigation.

Justice William J. Brennan: New York had litigated and the effect of the court judgment was that either draw these districts this way or you would have violated Section 5, you would be making the same argument here, I take it?

Mr. Lewin: If the Court had said, yes you have to draw it on the basis of race with a 35% quota, yes I would.

Justice William J. Brennan: Even though the Constitution then required only Section 5.

Mr. Lewin: Yes, then I would be making the same argument.

Justice William J. Brennan: Section 5 as construed in the play would be unconstitutional.

Mr. Lewin: If the Court so held in that case, yes I would be arguing here that that would be unconstitutional, but we think that the Court would not have so held.

If Beer indicated anything, Beer indicated, we think, that the decision by the Attorney General in 1972 was erroneous.

It was erroneous for variety of reasons.

There certainly was no suggestion in the Attorney General’s letter or the Assistant Attorney General’s letter of April, 1974 with regards to the 1972 apportionment that it was worse than any prior apportionment, than the 1966 apportionment with respect to race.

It had the standards that is now been made clear by this Court under the Beer case applied.

At that time the Assistant Attorney General’s findings in the letter would have been totally irrelevant.

They just do not relate to the issue that this Court has now said Section 5 applies to.

Justice William J. Brennan: Mr. Lewin, do you think the last term’s decision on Washington and Davis has any relevancy to the issue here, purpose and the fact?

Mr. Lewin: The purpose.

Well, we think at the moment Your Honor the thing has skipped my mind.

If I could look at it over the lunch recess, I will recall it.

Justice William J. Brennan: Voice Overlap).

Mr. Lewin: But I would like to be able just to read that opinion again over the lunch recess if I could reply to it after lunch.

Justice William J. Brennan: I am just interested in whether you think it has any relevance to the issue here.

Justice John Paul Stevens: Mr. Lewin, I ask you a question that you may also want to think about over the lunch hour.

I wonder if the existence of Section 5 has anything at all really changes the issue at all.

The question I have asked is, supposing the New York Legislature, independently of Section 5, had concluded that there was undue concentration of voters of one particular race in an area, could they for their own, just to correct that situation, had done what they say they are more or less compelled to do by the United States here, and would that be a different case than this?

Mr. Lewin: Our view is that they certainly could not that if that were true then the argument that the respondents made based Gaffney and Cummings would be somewhat closer to this case.

One distinction that we think exists between this case and this Court’s opinion in Gaffney is that Gaffney was a determined legislative judgment to apportion in a certain manner.

This Court said it will not strike that down.

Now, Of course we will argue that Gaffney is distinguishable because Gaffney was apportionment based on political ideology rather than race, but if race were the factor, we think that would be impermissible.

As a matter of fact, we think that Your Honor’s opinion dissenting in the Cousin’s case, in 466 F. 2d. we think does demonstrate precisely that that is impressible not only with regard to blacks, but with regard to other minorities, with regard to this white community of Williamsburgh, which was and is a racial minority in the district where it resides.

Chief Justice Warren E. Burger: We will let you pursue that after lunch, Mr. Lewin.

Mr. Lewin you may resume your argument.

Mr. Lewin: Thank you Mr. Chief Justice.

Over the luncheon recess I have done my homework Mr. Justice Brennan, and read Washington versus Davis which it appears to me does affect this case in one major way, and in another subsidiary way.

The Court did hold of course in Washington versus Davis that all statistical proof goes to the ultimate question of whether there has been purposeful discrimination and that that is the constitutional text.

It would appear to me that the decision in Washington and Davis and the opinion is consistent in that regard with our position that it is really not necessary for the Court to consider the statistical impact of any particular apportionment if the record is as clear as it is here on there being a discriminatory purpose.

In fact, at the end of the Court’s opinion in the City of Richmond case as well, the Court adverted in that opinion to the fact that even perfectly legal results, even statistics which would stand analysis if examined to see what their effect would be on racial minorities.

It would be impressible, if they are done for racially discriminatory purposes.

The Court viewed a racially discriminatory purpose as being as it put it, a gross racial slur which can have no credentials whatever, and in that regard quoted from a 1918 opinion that “acts generally lawful may become unlawful when done to accomplish an unlawful end.”

Justice William J. Brennan: Well, Mr. Lewin is it that clear in this case that what was done was a purposeful racial slur?

Mr. Lewin: We think it is.

We think, although it was done for benign purposes, it was a diminution of the effect of a particular racial group within the…

Justice William J. Brennan: Well, Washington and Davis gave us if that principle is applicable required not really affect but also purpose to deny.

Are you spelling purpose out of affect here?

Mr. Lewin: No, I am saying purpose means that when you take a racial minority such as the white community, overwhelmingly Jewish, orthodox Jewish in Williamsburgh is and you view that minority in that neighborhood.

In other words, I think Judge Frank (ph) below dissenting pointed out that one cannot look at an entire county or an entire city and say well now what is the racial minority there.

The question is what is the racial minority in the Williamsburgh section of Brooklyn?

If, in fact, in order to diminish the voting power of the white citizens of the Williamsburgh section of Brooklyn, the New York Legislature decided that it was not going to give them more than 35% population in any one of those districts, assembly districts, then we think that has to come in.

Justice Thurgood Marshall: I suppose when read this record really as that what was done that was done only because otherwise it could not have been a Section 5 clearance from the Attorney General.

Mr. Lewin: Yes.

Justice Thurgood Marshall: And that was the only reason for it is being done.

I suppose one read the record that way.

Mr. Lewin: We think that is impressible.

We have joined the Attorney General and the State officials and we say you cannot do that.

You cannot say that in order to pass muster under Section 5 you will take a racial minority, in this case it is a white racial minority, you will take a racial minority and say to them you cannot have more than 35% in those districts.

Justice Thurgood Marshall: Well, actually it was the other way around, wasn't it?

If what we are told and what you rather said earlier, what happened was, it is not that you can have only 35% whites that you must 65% blacks.

Mr. Lewin: Well, no.

Again, there is a peculiar way that…

Justice Thurgood Marshall: And of course you have got the blacks here that we are including among blacks, Porto Ricans only.

Mr. Lewin: Well, we are not only including Porto Ricans, but according the New York State Legislature we are including others.

In other words, it is quite clear from the submission of the NAACP and I think that is what is really most disturbing about this s that it is a submission which argues that there is the white community and the rest of the world, the nonwhite community.

To anybody as Judge Frank (ph) noted who is familiar with New York, it is pure fiction to speak of the rest of that community, blacks and Porto Ricans as merged together and others as merged together in the nonwhite community.

Only if one looks at it as means of reducing the possibility of electing white legislators, the interesting thing is that that emerges so clearly from the NAACP submission to the Department of Justice that they speak over and over again about the white encumbrance and the need to allow other than white encumbrance in the legislature in New York.

This was not a measure or a disapproval based on taking a particular racial minority such as blacks or groups such as Porto Ricans, it was really the Department of Justice saying whites are simply not covered by the Fifteenth Amendment or by the Voting Rights Act.

We have quoted in our reply brief what strikes us as an extraordinary passage out of the Department of Justice’s memorandum justifying its approval of the 1974 lounge in which they say in the clearest language…

Justice Thurgood Marshall: What page this is?

Mr. Lewin: This appears at page 12 of our reply brief, and it is at page 11 and 12, it is on page 293 of the appendix in which the Department of Justice says clearly that in their view the Fifteenth Amendment and the Voting Rights Act is not designed to protect Hasidic Jews, persons of Irish, Polish, or Italian decent, none of those are within the special protections defined by the Congress in the Voting Rights Act not all within the Fifteenth Amendment.

That the entire memorandum focuses on the fact that the only people who are protected by the Voting Rights Act in the Fifteenth Amendment are blacks and Porto Ricans.

Justice William H. Rehnquist: But it is not the same thing to say that Irish, and Hasidic Jews and so forth are not protected as a minority and to say that whites as a minority are not protected, is it?

Mr. Lewin: Well, the whites as a minority in a particular area may happen to be as they are in this case Hasidic Jews or Irish or Italian.

It is true the Irish or Italian as an entire group may not be protected but the white, a white Irish community in a particular area which ends up being a minority is protected just as white and registered, the Mexican-Americans in Bexar County.

I think this Court focused on the Mexican-Americans in that country not Mexican-Americans in their entirety throughout the State, but those that were in the particular county and said, as to those they had been denied rights protected by the Fifteenth Amendment.

Justice Byron R. White: You perhpas say that there you saw the case, let us say, with the purpose to discriminate against in order to disentitle or to diminish the rights of the whites, but wouldn’t you be making the same arguments that the purpose was on a racial basis to improve the situation of Negroes or…

Mr. Lewin: Well, we have never challenged the bona fides and the good intentions of the Department of Justice and the State officials.

So, we are granting that that…

Justice Byron R. White: Constitutionally not supposedly expressed purpose of legislature was to increase the likelihood of Negroes who are getting to be elected, and get into candidates.

So, they say let us make it 65% nonwhite or let us assume 65% black in as many districts as possible.

Mr. Lewin: We think it is two sides of the same coin you cannot separate those.

Justice Byron R. White: So, you would be making same argument.

Mr. Lewin: Of course, because that necessarily follows, you cannot separate those and the evils of that…

Chief Justice Warren E. Burger: Mr. Lewin would this have any unfortunate mark tendency to cut against the whole efforts to have an integrated society?

Mr. Lewin: We think Mr. Chief Justice it mostly definitely does and we have expanded at more length than I suppose I have time now to go into on the harms we think it does.

What it does is it caters to the notion that there is racial polarization in voting. Again, the NAACP…

Chief Justice Warren E. Burger: It does more than that.

It urges, it presses people to move into blacks where they have other Chicanos or other Porto Ricans or other Negroes or any other minority group or a group that regards itself as a minority group.

Mr. Lewin: It encourages them to move into that area, it encourages voting on the basis of race in the ballot box.

It is exactly what this Court said in Anderson and Martin would not be permitted if you can have a racial designation on a ballot in order to get the black community to vote for black candidates.

One would think that might very well help the election of blacks and yet this Court has said the state may not make that an element in the electoral process.

In fact, the interesting thing is the statistics that emerge from the NAACP brief, they are not in the record because this happen after the case below, but the NAACP has in its brief the statistics regarding the consequences of the vote in 1974, and it says, in 1974, after this apportionment, there were nonwhites elected in the three senatorial districts, this appears at pages 26 and 27 in the NAACP brief, in the three senatorial districts which will made overwhelmingly nonwhite and in the seven assembly districts, all of which were made overwhelmingly nonwhite.

That gave blacks really a 43% of the representation of Kings County substantially over the 24% black population.

But the interesting thing is that according to the Footnote that happened in 1974 but it did not happen since.

In other words, in the subsequent election, according to the NAACP whites now represent also two of the assembly districts that are overwhelmingly black and two of the senate districts.

Although originally, I think precisely because this emphasis was placed on getting black or nonwhite districts voters were being encouraged to go into that ballot box and vote on the basis of race.

And that is we think squarely contrary to what the Fifteenth Amendment and the Fourteenth Amendment are designed to encourage.

They are designed to encourage voting on the basis of individual merits of candidates and not things such as race, and that distinguishes Gaffney and Cummings as well.

Gaffney and Cummings was a deliberate apportionment according to the candidates, Democratic and Republican candidates.

Whether a candidate is a Democrat or a Republican appears on the ballot.

The state encourages voting on the basis of political affiliation.

That is part of our political process.

Anderson and Martin had said you cannot put on the ballot the race of a candidate.

You cannot put on the ballot the ethnic identification of a candidate.

Obviously those are things which would be encouraging voters to vote on the basis of criteria which the Fourteenth and Fifteenth Amendments were designed to override, and yet the Solicitor General and the State and the interveners here are arguing that a racial fairness formula is perfectly appropriate.

Justice John Paul Stevens: Mr. Lewin, would it be a valid objection to a reapportionment scheme for a legislator to be concerned that a new line would split the clients you represented into two different grups?

Mr. Lewin: We think it would be a valid criterion.

We think that that is one of the criteria that are always applied Mr. Justice Stevens by people who draw the lines.

They decide where are the communities, what have been traditional boundaries?

That kind of thing has been used in the past and we think is a permissible criterion.

So, we think our legislature could use that, but I think we have to…

Justice John Paul Stevens: In other words, they should seek to preserve existing groups that presumably voters are black but they should not create any new of blacks, is that it?

Mr. Lewin: Well, I think they should preserve existing groups irrespective of whether the voters are blacks.

I think the neighborhood…

Justice John Paul Stevens: But if they are not assumed the voters are blacks what is the interest in trying to preserve them cohesively?

Mr. Lewin: Well, I think there are various interests.

One interest one can think of is simply that in the electoral process there are ways that candidates having reaching voters through their community groups.

In other words, a candidate goes in and says, well now I will speak, it maybe in a Synagogue, it maybe in a hall or lodge or an ethnic center of some kind and that has traditionally done by candidates.

So, it makes sense from a totally neutral legislative standpoint to say we would like to preserve that so that the candidates can get their message through to the voters. Even they do not vote as a black but that all the candidates should be able to get through to the voters through these various (Voice Overlap).

Justice John Paul Stevens: Well, taking it one step further, if you started with your group being broken in the two districts, could the legislature permissibly decide for the reasons you have just stated would like to put this entire group in one district?

Mr. Lewin: I think it could, but we are not arguing that it must.

I think one thing that would impact…

Justice John Paul Stevens: Because this made it.

Mr. Lewin: I think it may, I think it may because of perfectly neutral reasons that have to do simply with candidates and their availability or accessibility to the voters, and with I think traditional reapportionment standards.

I think a legislature may say various elements and criteria enter into apportionment and this Court noted in Gaffney that it is not a mindless process.

Obviously, legislators and those who make determinations make these judgments on the basis of a wide variety of factors, and they could and should consider communities as well as other factors.

Justice Byron R. White: Both of legislature districts expressly and explicitly for the purpose of maximizing the number of Republican districts or the maximum number of Democratic districts.

So, in order to as they said approach by districting as near as possible proportional representation?

Mr. Lewin: That this court has sustained in Gaffney and we certainly do not challenge.

Justice Byron R. White: But expressly they draw the lines on a…

Mr. Lewin: Yes, we think politics is part of the political process; race is not part of the political process.

Race is an impressible standard except when it is being used -- it can be struck down when it is being used to reduce the voting effectiveness of voters.

That relates to anther factor which is that everybody, the interveners in this case, and I think the majority below, kind of assume that there is a necessarily relation between the voting power of nonwhites and the race of the candidates who are elected.

We think that that is just not true and that also was impressible under our standards.

We think blacks or nonwhites may have and should have voting power but that does not mean that that is tested by saying how many there are or...

Justice Byron R. White: So, your submission is if the legislature concludes that the whites and blacks or whites and nonwhites tend to vote at blocks and we would like by districting to come as near as possible as to have the nonwhite strength in the community reflected in the legislature.

That would be bad.

That would be unconstitutional because they express the intended districts on the basis of race.

Mr. Lewin: We think that would be there.

The Court, the majority below said in a Footnote that is at page 27A of our petition, Footnote 20, factfully said the majority in the sort of wistful Footnote, more and more we are coming to the day when the American voters vote person or party or issue and not color or race or sex, until that idyllic day all voters do this however.

Voting Rights Act or Fifteenth Amendment will be necessary until that idyllic day.

We submit that the way to get to that idyllic day is to say the sate may not encourage it.

Justice William H. Rehnquist: Whether the New York Legislature had been proceeding on a general Gaffney against Cummings approach but one of their sub-hypotheses was that blacks and Porto Ricans in Brooklyn tend to vote democratic, and therefore, we are going to create a couple of democratic districts and the way we will do this is to include 65% of blacks, Proto Ricans, and others.

Would there be anything wrong with that?

Mr. Lewin: If the legislature’s objective is political, we think that is permissible under Gaffney and Cummings, even though they may use racial criteria in determining how the political affiliation is arrived at.

Now, I think there are other, I mean as I think of the hypothesis that you put Mr. Justice Rehnquist, I suppose since the legislature had other ways of determining Democratic and Republican affiliation such as registration statistics, it might be an impermissible way of getting what is really registration statistics, but I would think initially if the legislature is saying what we are doing is looking to make a political distribution that is a permissible distribution.

Justice Byron R. White: Mr. Lewin, I know what the facts are on the case and isn’t it true that after this districting, this reapportionment occurred, the white community in general have not been disenfranchised or its representation had been diminished.

Mr. Lewin: Well, I do not know how…

Justice Byron R. White: In the overall representation.

Mr. Lewin: Well, I think from the statistics that I see in NAACP brief there were 43%...

Justice Byron R. White: Well, let me put it this way, which is a different question and I can see that I guess is the one I really intent.

Was the white representation any less than its proportional number in the community?

Mr. Lewin: I think in Kings Country it was as a matter of fact.

I think it was 43% as my statistics work it out for black or…

Justice Thurgood Marshall: How did you do that Mr. Lewin?

There are X number of assemblymen, X number of senators in Kings County that is all the Brooklyn, and that the number of black senators, the number of black assemblymen was a higher percentage than the total number of blacks in the County, is that it?

Mr. Lewin: Yes.

The Total number of blacks was 24% and as I read it from the statistics, it appears to be 43% black representatives from that.

Justice Byron R. White: But you are saying that after this reapportionment the representation of the whites had A, been diminished and B, been diminished below their proportional number in the community.

Mr. Lewin: That is the conclusion I can come to from the Footnote Mr. Justice White but that is not what our case turns out.

We do not say that it depends on whether that is shown or not.

Justice Byron R. White: Well, I know.

Mr. Lewin: Really what we say you have to focus on is not what the total was in the community.

You have got to focus on this community in Williamsburgh.

Justice Byron R. White: Well, I understand your position but somebody else might think it is important.

I was wondering what in fact the fact was?

Mr. Lewin: I would like to reserve the remainder of my time.

Chief Justice Warren E. Burger: Mr. Pollak.

Argument of Louis H. Pollak

Mr. Pollak: Mr. Chief Justice and may it please the Court.

Together with my colleagues, Mr. Greenberg and Schnapper, I represent the NAACP which intervened in the District Court in this case to oppose petitioners’ claim, the lines adopted by the New York Legislature in 1974 to delineate the assembly and the senate districts in the County of Brooklyn unconstitutionally abridge the franchised petitioners and other white residents in that county.

In the short time available to me I will attempt to advance two linked propositions, namely that the 1974 lines are constitutionally proper both as to purpose and as to effect.

But before advancing these propositions I will with the Court’s permission try to address a few preliminary words to two critical aspects of this case.

First it has to do with the anomalous nature of the petitioners’ constitutional claims.

The second goes to peculiar procedural posture of this case, the case which comes here, if the Court please, not after a full trial, but after a very brief hearing on petitioners’ motion for preliminary injunction.

I submit a far too truncated record to begin to sustain petitioners’ extraordinary claim of proof that the State of New York and the Attorney General of the United States have collaborated to abridge petitioners’ constitutional rights.

Now in saying that petitioners’ claim is anomalous I have in mind two aspects.

To the extent that petitioners are in effect asserting a constitutional entitlement to have their Hasidic community remains forever in a single voting district.

I submit that they are arguing for a preference whether it would be denominated an ethnic or religious or indeed a political preference which is unknown to the Constitution.

Chief Justice Warren E. Burger: Well, does that require an assumption that that is the way it was constructed in the first place?

Mr. Pollak: No Your Honor.

I submit that on whatever basis those persons have come together, they are no more entitled than any others in the American population to remain a discrete voting district.

Chief Justice Warren E. Burger: But their claim is that you cannot cut them up for a non neutral purpose.

That is their claim.

Mr. Pollak: I believe that is correct Your Honor and I was just about to go on, Mr. Chief Justice, to the proviso.

Justice William J. Brennan: Before you do, I thought Mr. Lewin told us he was not arguing this case on any basis that this is a civic community but rather that this was a discrimination against whites as whites.

Mr. Pollak: Well, I have heard that and I believe that is the alternative claim.

Justice William J. Brennan: Alternative!

Well, I thought it was the basic one.

Mr. Pollak: Well, I hope that is the basic one because I myself Mr. Justice Brennan have been trying fully to understand where Mr. Lewin’s claim lies.

Chief Justice Warren E. Burger: Well, to understand that, you wish it were this claim that it sounds like his claim.

Mr. Pollak: There have been enough references to the importance and integrity of the community as such to lead me to believe that we at least ought to establish that that could not be the basis for a constitutional claim in this Court.

Unless of course Mr. Chief Justice, action were taken hostile to that community because of their race or religion, but there is not a word in this record suggest hostility to the Hasidian as such.

In that connection I would call the Court’s attention as Mr. Lewin already has to Mr. Justice Stevens’ very instructive opinion in the Cousins case, but before its elevation to this Court, the opinion in 466 F. 2d.

Justice Potter Stewart: That was a dissenting opinion.

Mr. Pollak: That was a dissenting opinion Mr. Justice Stewart.

Though I believe you will find that as the case…

Justice Potter Stewart: I suppose it would have been binding if it would have been a majority opinion.

Mr. Pollak: I think Judge Fairchild would conclude that ultimately he and Judge Stevens were on the same side.

Now, if in the alternative and I think this is the alternative we must proceed on, Mr. Lewin is claiming that the discrimination here is against his clients as whites, then I must submit to this Court that any claim that Brooklyn is a county in which whites are politically disadvantaged by virtue of the 1974 districts in mind is with all respect an upfront to common sense.

Here I must disagree with my brother Lewin’s understanding of the statistics we tried to set forth apparently, unsuccessfully in our brief supplemented by a letter from my colleague Mr. Schnapper which I believe is now come to the Court’s attention.

Whites constitute less than 65% of Brooklyn’s population but they are the majority race in 15 out of Brooklyn’s 22 assembly districts and seven of Brooklyn’s ten senate districts.

Moreover, and this goes directly to Mr. Lewin’s, I am afraid, misunderstanding of statistics we tried to set forth.

White legislatures sit in 17 of the 22 assembly districts and eight of ten senate seats.

They did this as a result of the 1974 elections.

That is to say they hold all white majority districts and additional nonwhite majority districts.

17 out of 22 assembly districts in Brooklyn, eight out of ten senate seats, and last month’s primaries indicate that exactly that pattern will continue in general as a result of the general election.

Justice William H. Rehnquist: Well, Mr. Pollak then there is the constitutional stature of the claim turn on the racial make up of the County.

Mr. Pollak: Your Honor only in a sense.

What if this goes to is that the effect of what has been done here is certainly not to disadvantage, politically to disadvantage whites in the County of Brooklyn.

Justice William H. Rehnquist: But what about whites?

It all depends on what statistics you use I suppose.

What about the two assembly districts in question?

Mr. Pollak: I am in agreement if Your Honor please with Mr. Lewin who suggested that one looks at Bexar County.

Justice William H. Rehnquist: Bexar it is.

Mr. Pollak: One looks at it and hopefully one learns to pronounce it correctly Your Honor.

Here sir we look at Brooklyn as the political entity which is subject to the Voting Rights Act.

And looking at Brooklyn as that total entity in which petitioners’ base their constitutional claim as disadvantaged whites, it seems to me almost frivolous to assert that disadvantage has been worked on the white community.

Chief Justice Warren E. Burger: But why would they single out just one county if you are going at it, why not the whole state?

Mr. Pollak: Because Your Honor the Voting Rights Act of 1965 is invoked county by county.

Chief Justice Warren E. Burger: County by county but as components of what, of the state?

Mr. Pollak: Well, if Mr. Chief Justice, we were to look at the State of New York as a whole, I have not been that ambitious to survey the entire State we would, I submit, get a formal sweeping demonstration that the State of New York is, like Brooklyn itself, safely in white political hands.

Justice William H. Rehnquist: But in White versus Regester Mr. Pollak, the question was at large districts for a county, well, was it not that the reason why the analysis was confined to Bexar County, here you don’t have districts at large.

You have single member districts.

Mr. Pollak: But you will have Mr. Justice Rehnquist is the New York Legislature attempting to redistrict following the 1970 Census.

Perhaps it bares remembering that the New York Legislature was not simply attempting as Mr. Lewin seems to have suggested to address itself to that particular purpose of disenfranchising his clients.

It was required under the New York Constitution to redistrict the State following the 1970 Census.

The 1972 lines disapproved to address to that purpose, the 1974 lines were replaced the disapproved 1972 lines, and the meeting of the objections of the Attorney General of the United States with respect to particular disadvantage in noncompliance for the Voting Rights Act of 1965 as it applied to Brooklyn was simply one of the modest purposes of the legislature of the State of New York but that was a purpose which was addressed to the County of Brooklyn as such because it was that county which I submit the Attorney General was directing New York’s attention to in disapproving the 1972 lines.

So, I do not think we can, in fairness, reduce for the purposes of enlarging the claim of Mr. Lewin’s white clients reduce the focus of this case beyond the general confines of the County of Brooklyn in which whites and the memory of man runneth not to the contrary has been overwhelmingly the dominant group, all for countywide officers, Four President, District Attorney, two City Councilmen are white, five of Brooklyn’s six Congress persons are white.

Justice John Paul Stevens: Would you tell me what do you think the issue is?

The constitutional issues in the case would be any different if there had been no Voting Rights problem at all, but these decisions had all been made independently by the New York Legislature just to correct what it conceived to be an improper set of district lines?

Mr. Pollak: It is my feeling Mr. Justice Stevens that the Solicitor General has persuasively demonstrated to me at least that building on the doctrine of Gaffney and Cummings, New York would be entitled to undertake in furtherance of the Fourteenth and Fifteenth Amendments to undertake, to create the possibility of effective political action, by no means a guarantee of it, and I think certainly this was not accomplished here where many whites were elected in minority, in black, Porto Rican majority districts, to create the possibility of effective political action for groups which are not simply the Democratic or Republican groups identified in Gaffney and Cummings, but other groupings of a kinds which are linked politically in the vary way suggested in your opinion Mr. Justice Stevens which I with all apologies refer to again even though it was a dissenting opinion.

So, I think Gaffney and Cummings would independently support New York’s action, had New York acted unprodded by the Voting Rights Act, but of course the reality of this case is that New York moved because the Attorney General had disapproved the 1972 lines, and with respect to the constitutionality of New York’s using race as an index of how to correct the imbalances which the Attorney General had discerned in the 1972 lines, I submit, if the Court please, that there can be no question that New York not only was entitled but indeed obliged to look to race to make, to remedy what had been after all racial abuses.

Justice William H. Rehnquist: Are you entitled to rely simply on the Attorney General’s finding as to 1972?

In this lawsuit, are you required to make some showing that in fact what he found was justified under the law?

Mr. Pollak: Mr. Justice Rehnquist were there time enough I would be glad to try to demonstrate that the Attorney General was right, but I do not think that is our burden or any of respondent’s burden in this case.

The determination was made by the Attorney General.

It was reviewable, and the State of New York sought to review it and the District Court for the District of Columbia when the politically entity which is New York shows not to do so, the Attorney General’s disposition became a final one, not I think to be collaterally reviewed here.

Justice William J. Brennan: What the New York Legislature did accepting your submission in that respect; raise any diaphanous types of problems?

Mr. Pollak: It does not in my view raise any such problems Mr. Justice Brennan.

Assuming I were sure from the Court’s Delphic silence what a diaphanous type problem is.

Justice William J. Brennan: I know what the problem is.

I know the answer.

Mr. Pollak: No, if the Court please, I do not, and specifically if I may say the fact which is the predicate of this case that there was disapproval by the Attorney General under the Voting Rights Act puts this case in a position where a fortiori the State of New York was not merely empowered but obliged to proceed with the race of voting districts in mind.

Directly as to diaphanous this is not a case in which a preference was given to one assertively at the expense of another.

This was a case in which all it was attempted as I understand, taking Mr. Lewin’s case at its strongest, all it was attempted was to create a viable opportunity for blacks and Porto Ricans to organize themselves politically.

Justice Byron R. White: You might have a different answer to that question if the white community had been disenfranchised to some extent.

Mr. Pollak: I think that certainly would bear on the question of the fact, but even as to purpose, the validity of a purpose to improve the possibility of minority political action.

The constitutional validity of such a purpose, was I think pretended Mr. Justice White not merely by your question to Mr. Lewin, as to the applicability of the Voting Rights Act, but indeed as my colleague Mr. Schnapper has pointed out to me exactly what was illustrated by your hypothetical question was of record in the Beer case decided by this Court last year.

Mr. Schnapper has pointed me to pages 341 to 2 of the record in the Beer case, in which it turns out that the lines which this Court felt the Attorney General should not have disapproved, those lines were in part constructed, the record makes it absolutely plain, in order to effect some deliberate marginal improvement of the opportunity of black voters in New Orleans to vote.

Argument of Unidentified Justice

Unidentified Justice: Without any constitutional compulsion.

Rebuttal of Louis H. Pollak

Mr. Pollak: And without any constitutional compulsion.

The Voting Rights Act, Your Honor, I agree, goes beyond the mandate of the Constitution of the Untied States.

Mr. Lewin’s entire case with respect to the invidious purpose of the State of New York rests not on proof of what legislators intended, it rests on testimony of what one staff assistant to a legislator said, and indeed the allegations or Mr. Lewin’s complaint do not directly link the legislature of New York, except vicariously without attributed.

And again I repeat, “The entire proof” comes up on a motion for preliminary injunction and surely this truncated record could not be responsible basis for this Court making a deliberate adjudication of a case which purports to challenge the constitutionality of action taken by the sovereign legislature of New York and the Attorney General of the United States.

I would not like to conduct the trial portended by Mr. Justice Rehnquist’s question to Mr. Lewin, in which legislators of New York are called to the witness stand to testify as to what their purpose was in enacting these laws.

Suffice it to say there is no such testimony here, and it has, I think, in this Court’s unbroken and understandable wish ever since Fletcher versus Peck to avoid inquiries of that kind and yet they would be necessary where this case to be pursued.

Chief Justice Warren E. Burger: Even if for the period on the basis of this record without calling any legislators, that that was the purpose?

Mr. Pollak: Mr. Chief Justice I think all we can say -- and I do call attention to the details of Mr. Lewin’s complaint.

I think all we can say is that even Mr. Lewin and his complaint only asserts that the 65% quota was an opinion communicated to employees of the Joint Committee.

I am referring to paragraphs 22 through 24 of Mr. Lewin’s complaint.

The attribution to the legislature as such is not I think made by the record before this Court.

Chief Justice Warren E. Burger: Mr. Pollak you are now on the Solicitor General’s time.

acquiescence that’s up to him.

We see no signs of acquiescence.

Mr. Pollak: If I am chary of trespassing on my friend, the Solicitor General’s time, but I will simply take closing seconds to submit that this is a case, if the Court please, which cannot be decided in Mr. Lewin’s favor on this foreshortened record.

It is my own belief that if the Court sees substantial constitutional claims left, which I do not see, it must follow the path of remand.

For our part we think the complaint was properly dismissed, because there is not even prima facie showing of invalid purpose or invalid effect.

This would be true if New York had been acting un-product by the Attorney General.

It is true a fortiori where what New York did was to legislate to achieve compliance with a congressional mandate in furtherance of Congress or some power, to enforce the Fourteenth and Fifteenth Amendments.

In conclusion Mr. Chief Justice, I would urge that in this bicentennial year, fidelity to the declaration of the Constitution, those instruments of government honored in this Court, not ceremonially and not at intervals but emphatically and everyday, requires affirmance of the judges below.

Chief Justice Warren E. Burger: Mr. Solicitor General.

Argument of Robert H. Bork

Mr. Bork: Mr. Chief Justice may it please the Court.

I have been liking in the brief time available to concentrate upon the merits of petitioners’ claim and leave the question of Attorney General’s position as a party in this case to our brief.

I think the question of the claim under the Voting Rights Act which is made and the compliant is also taking care of the brief, has not been pretty clarified that there is no claim made -- that there is discrimination against the Hasidism as such.

Justice William H. Rehnquist: What is the government’s interest in the merits of the plaintiff’s constitutional claim if the status of the Attorney General as a party has put to one side?

Mr. Bork: The government’s interest become then Mr. Justice Rehnquist preserving the Voting Rights Act of 1965, from a ruling which I think would effectively destroy its application to apportionment.

The case turns upon the petitioners’ claim as members of the white race, and I think I can show rather quickly that analysis demonstrates that they have no valid claim of unconstitutional discrimination on the basis of that.

For purposes of clarity, I would like to discuss first the general constitutional issue, and second I will examine the question of whether the Attorney General’s involvement, in the facts, in the redistricting process, alters that conclusion in any way.

Our petitioners’ central contention appears to be that redistricting may not be done, so as to produce any particular racial composition in the voting district, and I think acceptance of that contention would have two results, each of which is completely foreclosed by constitutional law.

The first would be the effective destruction of the application of Section 5 of the Voting Rights Act to reapportionments.

The second which seems to me equally bizarre, would be that districting itself would be made unconstitutional, unless done by a person who could be proved to have no idea of the ethnic or racial composition of the community it was dealing with or preferably done by a computer which was not programmed to have any such information.

Chief Justice Warren E. Burger: Well, how was districting done before all these problems rose, let us say, 100 or 150 years ago?

Mr. Bork: That was done by legislatures.

Chief Justice Warren E. Burger: Yes, but what guidelines, geographical largely?

Mr. Bork: I think Mr. Chief Justice, the guidelines which history shows were racial, political, geographical, reservation of communities, all the shows…

Chief Justice Warren E. Burger: It certainly shows that they were often political.

Mr. Bork: I think that is true Mr. Chief Justice, but that is why I say that acceptance of their argument I think -- for the reason I say is, you cannot do redistricting without having racial considerations in mind, unless you are willing to forget about the Voting Rights Act of 1965.

It is impossible to be sure that there is not effect of abridging anybody’s voting right on account of his race, of a racial group there has not been retrogression, unless the persons who draw the district lines knows the impact, they are having upon a racial group.

Now, there has been great play here upon the word ‘quotas’.

It is a word I do not greatly care for in most contexts, but it must be said that the Fifteenth Amendment implemented by the Voting Rights Act, and under either the majority or the minority position in Beer, somebody has to decide whether a racial group has been dropped below a certain position in a voting district.

Now, Mr. Lewin can call it a quota if he wants to and get whatever emotional connotations that are in that word, but that happens to be the result of the Fifteenth Amendment as it worked out to date.

Thus, it seems to me that petitioners’ claim is necessarily that the Voting Rights Act itself is unconstitutional and that claim has been decisively rejected by this Court, beginning with South Carolina against Katzenbach.

Let me say one other thing, the petitioners I think have confused here.

The 1972 plan devised by the State of New York served many purposes.

The redistricting, as it always does, served many purposes.

It was revised after the Attorney General objected in one area to its racial impact, and only the revision had a racial purpose to it, but other purposes were continued to be served by the redistricting, so it is not true that this is a districting which is entirely racial in any way.

If we are going to litigate every modification of the plan made under by legislature, it will be endless, but petitioners’ argument is worse than destroying the Voting Rights Act, I think.

They really think that any redistricting of New York by its legislature would be unconstitutional, for it is perfectly clear that politicians are aware of the racial and ethnic makeup of neighborhoods, not only of their own constituencies, but of other constituencies, and it is perfectly clear that how the lines are drawn is going to affect the outcome of elections.

To tell a politician who knows that that he must not think about it.

It is about as telling a lawyer he must not think about which argument he is likely to declare on the court when he has a case to try.

It is about as effective of telling somebody for the next three seconds he must not think about the word hippopotamus.

I waited three seconds.

That means, the petitioners’ constitutional theory cannot be carried out unless the function of redistricting has taken away from legislatures all together, and can sign the courts or the computers, which is not what the Constitution requires.

The Gaffney against Cummings says, the apportionment task dealing as it must, with fundamental choices about the nature of representation is primarily a political and legislative process.

I think those two points, the petitioners’ arguments requires both the unconstitutionality, the Voting Rights Act as applied to apportionment and the unconstitutionality of districting done by legislatures are enough to dispose off this case, but I want to deal with a suggestion made, that somehow this case does not involve such a result, because it is unique and it is unique because the Attorney General is involved in the case, in the process.

That factor does not already analysis one with.

I will put petitioners’ basic contention on this Court as strongly as I can, in order to show that there is nothing to it.

The argument runs that the Attorney General disapproved of the 1972 plan and in the process of discussion with members of the Department afterwards, the staff assistant from New York got the idea, he was not told, he got the idea indirectly that it has come up with a 65% minimum proportion of nonwhites in order to get the approval.

Now, it is said also that the Attorney General’s refusal to approve the 1972 plan was subsequently shown to be wrong by this Court’s Beer decision, because proportional representation is not required for the Act and the State was thus forced into a position of redistricting in a way it would not otherwise have chosen.

That as I said, requires reversal of the Court of Appeals.

I think it does not -- Like there are two answers to that argument.

The first and less important perhaps, is that the Attorney General could not and did not compel the 1974 plan.

He did not require it, New York could have tried to convince him that the proper test was whether the 1972 plan was a (Inaudible) or retrogressive.

They did not try to convince of that, they did not present him with evidence from which he could have made that determination.

Chief Justice Warren E. Burger: Let us assume that State of New York was preceding on this erroneous assumption as you described it, what does that do to the case, basic issues of the case?

Mr. Bork: I think whatsoever Mr. Chief Justice, I think this case has to be analyzed just as if the State of New York could have chosen to do this on their own, and this for that reason -- wait a minute, let me read my second reason.

Chief Justice Warren E. Burger: Oh, could they do it for the reason that this assistant staff member thought it was…

Mr. Bork: Indeed, I am willing to except for the purposes of answering your question Mr. Chief Justice and answering Mr. Lewin’s contentions, I am willing to except the hypothesis which is contrary to the fact that the Attorney General told them he would only approve a 65% plan.

I will accept that for purposes of argument, I think it makes no difference.

I say that for this reason.

There was nothing whatsoever improper about the Attorney General’s involvement in this process.

There are some overtones of that in this argument.

The fact is that the Fifteenth Amendment permanently shifted federal state balance in this particular area, and the Voting Rights Act, which implements Fifteenth Amendment, puts the Attorney General into the redistricting process, when a covered jurisdiction comes to him rather than going to court.

In that sense, in that constitutional sense, the Attorney General is as much a part of this process with a different role to play, but a part of this process legitimately as he is the legislature of the State of New York, as he is the Governor of New York or anybody else who plays a part in it.

Justice Byron R. White: Well, is that the Solicitor General that in effect, the Attorney General can take a particular situation and draw the plan and tell the State this must be it, or none other?

Mr. Bork: No, but I suppose you come to the same conclusion realistically by sitting there rejecting plans forever until they come to the one he wants, but he does not do that.

His only function under the statute…

Justice Byron R. White: The state does not need to take it, they can litigate.

Mr. Bork: The state can go to the Three-Judge Court in the District of Columbia and litigate, they do not have to come to the Attorney General at all, and if they do go to the Court, a prior adverse decision by the Attorney General is entitled to no legal weight in that proceeding.

But the fact what he did here, was his legitimate role and a role given to him under the Fifteenth Amendment by the Voting Rights Act.

So that what petitioners are doing, is bringing back in a kind of sky’s form, the federalism objection that was made to the Voting Rights Act and decisively rejected in South Carolina against Katzenbach.

Justice Byron R. White: Is it true that the Attorney General in order to object to a plan such as he objected to in this case, would have to make his own judgment as to whether or not there is black racial voting?

Mr. Bork: He takes the position Mr. Justice White which was upheld by this Court that he has to be persuaded, he has to be -- the State must carry the burden of proof with him, that there is no denial or abridgment just as it must be for the court.

Justice Byron R. White: I understand that but I think that there must be some assumption that there is going to be some black racial voting or the chances of discrimination would be considerably less.

Mr. Bork: Well, I think whether there is black racial voting, it is one of the questions that he addresses himself to when he asked them to tell him about it.

Of course, if there is no black racial voting or very little, the problem becomes much less.

But the other part of this matter is; it is suggested that the Attorney General made a mistake when he refused to approve the 1972 plan, because he was using the theory that the minority of this Court took in Beer, and he should have been taking the position that the majority took.

Of course, this was before Beer was decided and the Attorney General was acting in the light of the Lower Court’s decision to appear.

But the Attorney General must often decide before an issue is clarified by law and is no different than if New York had gone to the Three-Judge Court and got an erroneous decision, which he did not appeal or if the legislature had made a mistake of law and put in a plan that did not have to under the Voting Rights Act.

It is no different then if the Governor with a mistaken view of what this Court would ultimately say about the Voting Rights Act had kept vetoing legislation by the legislature, until he forced them to the 1974 plan or some analogous plan.

So, that in all of these cases the issue is not whether somebody who is legitimately in the process as the Attorney General most certainly was, may have made a miscalculation about the future course of the law.

The question in all of these hypothesize cases, as on in this case is, whether the resulting redistricting violated the constitutional right and it seems to me that this case must be analyzed just as if there were no Voting Rights Act and just as if there were no Attorney General.

That means it comes down to the question of whether a State or Local Government can take race into account and choose to redistrict, so that there is racial proportional representation from an area.

That maybe a good idea or it maybe a bad idea, but I think that’s a legislative question, because I don’t think there is a slightest doubt that as a constitutional matter, a state can do that.

I do not really think there is a slightest doubt that that is effectively what Gaffney against Cummings has held.

I do not think it is distinguishable.

I was quite surprised.

Justice Potter Stewart: There is a limit there.

Mr. Bork: Oh, there certainly is a limit.

Justice Potter Stewart: In Gomillion against Lightfoot there certainly is.

Mr. Bork: No, I was speaking Mr. Justice Stewart of a taking race into account in order to achieve a rough proportionality.

I was not speaking of a case in which you are just staking a race and fencing it out as it was true in Gomillion against Lightfoot.

Justice Potter Stewart: Yes, your broad statement though would include that and perhaps I misunderstood your statement.

Mr. Bork: I did not mean to say that I meant to talk about dealing race as party it was in Gaffney against Cummings.

Justice William H. Rehnquist: When you say to achieve rough proportionality, what does that mean?

Mr. Bork: Well, a State I think could say that because race is a political issue and because groups in its area do vote somewhere along racial lines, that is going to construct districts, which are otherwise reasonably compact or contagious and so forth as these districts are here, which give a chance for something like proportional representation of the group in the legislature.

I was astounded when Mr. Lewin said that race is not a part of our political process.

Race has been ‘the political issue’ in this nation since it was founded.

We may regret that that is a political reality, but it is a reality, that is what the Fifteenth Amendment -- what Civil War was about, Fifteenth Amendment is about what the Constitution was in part about and it is a subject we struggle with politically today and I think the suggestion that we ignore race in order to discourage block voting is really suggestion that we allow the dilution of minority votes, the abridgement of minority votes so that they will not be encouraged to vote together.

Justice William J. Brennan: Mr. Solicitor General I wonder, are you saying to us that constitutional proportionality so long as that is legitimately and honestly the reason for doing what was done with these districts in Brooklyn is appropriate, but if what was done, was done to fence out the white community then it would be inappropriate.

Mr. Bork: Yes, if what was done was done with the intention of harming the white community politically -- of course it is true and…

Justice William J. Brennan: But who will stand for the purpose of giving a fair representation to the black community, even though it has the effect of diluting the representation of the white community.

Mr. Bork: Yes, but I think the white community Mr. Justice Brennan cannot have a claim to more, the constitutional claim to more voting representative strength than it has voting strength in the population.

Furthermore, throughout our history people have recognized the economic interest, ethnic interest, religious interest, all kinds of interests in redistricting.

It is very strange, if blacks were the only groups that could be recognized.

Justice William J. Brennan: Well, accepting all that, my question is, does this record really tell us why this was done?

Mr. Bork: Well, it tells us that the Attorney General objected because he thought there was dilution.

It tells us that New York State got the impression that they ought to get a 65%, by the way it’s 63%, Attorney General thought unless you include Chinese, and apparently that is as much as we know, but I do not think there is a constitutional claim and for that reason we ask that the judgment of the Court of Appeals be affirmed.

Chief Justice Warren E. Burger: Thank you Mr. Solicitor General.

Mr. Zuckerman.

Argument of George D. Zuckerman

Mr. Zuckerman: Mr. Chief Justice, may it please the Court.

There is no dispute that the State of New York utilized racial statistics enjoying the 1974 redistricting plan that is challenged by petitioners, but it is also clear that the use of racial consideration, so the preparation of 1974 plan was not for any invidious discriminatory purpose, but was designed as a remedial measure to overcome the objections that the Attorney General of the United States had raised in refusing to approve New York’s 1972 reapportionment statute with respect to New York and Kings County.

Justice William H. Rehnquist: Do you think anything that was done by New York in response to the Attorney General’s recommendation would automatically be entitled to the word remedial rather than invidious or discriminatory?

Mr. Zuckerman: Not anything Mr. Justice Rehnquist.

I think any fair response or reasonable in terms of proportionality, but if you reach Gomillion situation then I think it could be fairly attacked.

The State of New York does not agree with the April 1, 1974 determination of the Department of Justice which we rejected New York’s 1972 lines, and indeed the State believes that the recent decision of this Court in Beer versus the United States clearly indicates that that determination of the Department of Justice was based on an erroneous application of the Voting Rights Act.

However, the fact remains that due to the pressures of time brought on by the imminence of the 1974 primary, the State chose not to challenge the Justice Department’s determination.

As such the State was required to enact new legislation immediately to satisfy the objections of the Department of Justice.

Now, in attempting to satisfy these objections, it maybe remembered that the Department of Justice had complained that the 1972 districts contained an over concentration of nonwhites in the 18th senate district and in the 53rd to 56th assembly districts.

So to overcome these objections it was obviously necessary for the State to consider the racial composition of individual city blocks to transfer nonwhite voters from these allegedly over concentrated districts into the adjoining districts of allegedly under concentrated minority voters.

While racial considerations are generally constitutionally suspect, where such considerations have been taken in support of the remedial measure to further integration as was done in this case, the use of racial consideration has been sustained.

We point out at pages 19 and 20 of our brief, many of the cases in which the conscious use of racial considerations by public officials has been sustained when taken through further integration in the areas of education and employments and in promoting integrated housing.

Justice Byron R. White: What case do you think in this Court supports that statement outside the area of remedy for a constitutional violation?

Mr. Zuckerman: Well, in Swann versus Charlotte-Mecklenburg Board of Education.

Rebuttal of Unidentified Justice

Unidentified Justice: That was remediate (Inaudible).

Justice Byron R. White: That was not holding with…

Rebuttal of George D. Zuckerman

Mr. Zuckerman: Right. Mr. Justice White I would say in Candor there has been no holding of this what I am aware of…

Justice Byron R. White: This dictum in Swann.

Mr. Zuckerman: Possibly, there have been -- so we are citing in our brief some lower federal cases, in which the Makowski(ph) case for one and…

Justice Byron R. White: But nothing here you can say things in Swann, the dictum in Swann?

Mr. Zuckerman: Not that I am aware of.

I would specifically answer this question as to where there has been no finding of past discrimination.

Justice Byron R. White: Well, about Beer?

Mr. Zuckerman: Well, in Beer the holding that was in Beer would be inapposite to such a…

Justice Byron R. White: Why, why is that?

Mr. Zuckerman: But because they say that where a redistricting plan constitutes an improvement over the prior lines, this would not be a violation of Voting Rights Act, and we believe under the facts of the New York situation, the 1972 lines which were rejected by the Department of Justice were definitely an improvement over the prior district lines that had been drawn in 1966.

Justice Byron R. White: But do you suppose Beer would -- is it implied from Beer, infer from Beer that if the plan was disadvantageous to the black community, that there must be some lines -- the lines must be changed even there was not a constitutional violation?

Mr. Zuckerman: Yes, I would agree with that.

Justice William H. Rehnquist: You would have to do a fair amount of employing, wouldn’t you?

Mr. Zuckerman: Yes, in those circumstances.

We further submit that it is unrealistic to condemn a reapportionment plan solely on the ground that it employed racial considerations, where such considerations were utilized to produce a racially fair result.

Here, we believe that the opinion of this Court in Gaffney versus Cummings is instructive just as politically mindless redistricting might produce a gerrymanded result, we believe that a completely colorblind approach to redistricting might also produce an unintended discriminatory result.

In the appendix to our brief, we have included maps of the black and Puerto Rican population in Kings Counties and it will be noted that the black population is concentrated in the interior of Kings County and to a lesser extent so as the Puerto Rican population.

The southern half of Kings County is almost completely barren of blacks and Puerto Ricans.

Therefore, it would be possible applying a colorblind approach to draw equal districts starting at the peripheries of the County and working towards the center which would produce a result in which minorities would have far fewer districts than there are population would have appeared to entitle them too.

We submit that in attempt to prevent this unintended discriminatory effect the State may consider racial considerations.

Now, we believe the basic flaw in the petitioners’ approach is that they can point to no injury of constitutional dimension.

While we can appreciate their desire as a closely knit religious group to be confined within a single assembly or senate district, there is no constitutional right for ethnic or religious groups to be included within an electoral district that is favorable to the injuries of their group.

Obviously in Kings County with all the many multiethnic and racial and religious groups it would be impossible to satisfy all their demands and still to draw districts that were of equal population to satisfy the one person, one vote constitutional requirement.

Finally, even as white voters, we believe they have failed to show any constitutional injury.

Since whites with approximately 65% of the population in Kings County are in a majority in 68.6% of the assembly districts and 70% of the senate districts.

Chief Justice Warren E. Burger: Thank you.

Do you have anything to further Mr. Lewin?

Rebuttal of Nathan Lewin

Mr. Lewin: I might just take almost just one three points I think that came up Mr. Chief Justice in the course of the respondents’ argument.

First on, rereading the NAACP’s brief and its Footnote, I have to apologize to the Court, I did misunderstand the word succeeding election that appeared in that brief, and read it to assume that there was an election since, which of course I should have realized there was not.

In fact, therefore, the statement I made to the Court about the election of black candidates was in error and is not what the NAACP brief indicates, and I would just like to withdraw that.

But I think those statistics do indicate that if the overwhelmingly nonwhite district had in fact voted the way the NAACP suggested, there would have been overwhelmingly disproportionate, I believe, black representation.

Let me make just a brief response to Mr. Pollak’s point regarding the inadequacy of the record.

We made a motion for summary judgment below and our statement is to point as to which there is no genuine issue appears at 259 of the record.

The State respondents did not put any of those questions in issue.

The NAACP put some of them in issue, but we think not those really that would dispose of this case.

We believe our motion to summary judgment on the undisputed facts should have and could have been granted.

It is simply not true that this record in its present posture requires any remand for any further hearing if those points are read and if the complaint and the State answer which appears in the appendix are both read.

Justice William H. Rehnquist: Is that a motion for summary judgment as to a permanent injunction?

Mr. Lewin: Yes, Your Honor.

We moved on the basis of the record made on the motion of preliminary injunction.

We moved thereafter for summary judgment.

There was a response to it filed by the NAACP, none to my recollection filed by the State.

The Court denied the motion for summary judgment.

We appealed.

We asked as part of our appeal at the Court of Appeals grant our motion for summary judgment.

The record is in posture where we think we are entitled to summary judgment based on the undisputed testimony.

At that hearing, where there was ample notice, it was not a hearing that was called without notice, I think there were several days, our witnesses had testified, they called no witnesses.

Justice William H. Rehnquist: So, the posture in the Court of Appeals was not simply appeal from preliminary injunction, but appeal for the denial of a permanent injunction?

Mr. Lewin: It was the appeal from the dismissal of a complaint.

Justice William H. Rehnquist: Alright.

Mr. Lewin: The motion for the dismissal of the complaint was granted.

Finally, I think the Solicitor General has very much overstated our position by saying that we urge that the Voting Rights Act be overruled and that race be ignored.

We made no such argument.

We said clearly as in employment cases, it is proper for a state to look at race to decide what its apportionment has done.

It is not proper to make race the criterion which is really, and it is clear from the legislative record, that was the standard that was used here by the New York Legislature.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.