/audio/cases/1963/96_19631119-argument-1.mp3 ./1963-xml/96_19631119-1.xml Earl Warren Justin N. Feldman An advocate profile for "Mr. Justin N. Feldman" was automatically generated because an existing match could not be found. Byron R. White There were 2 matches for "Mr. Justice White". Arthur J. Goldberg Hugo L. Black Potter Stewart John M. Harlan There were 2 matches for "Mr. Justice Harlan". William O. Douglas Irving Galt William J. Brennan Wright v. Rockefeller
Argument of Justin N. Feldman Number 96, Yvette M. Wright et al., Appellants, versus Nelson A. Rockefeller, Governor of New York. Mr. 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 -- (Inaudible) I'm suggesting sir, that we prove the racial inference. No one has come -- (Inaudible) In this record. Are thereby eliminating the political -- 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. (Inaudible) 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. (Inaudible) 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. (Inaudible) 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. Covers the 5th? Right. And of course the Seventeenth goes also over to the Westside for certain portions although the bulk of it is on the Eastside. What about the Wall -- The Wall Street District is the Nineteenth, this area below. Now, -- Excuse me, as I see the Twentieth there is a gulf behind the Bronx there is the Harlem River? 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. I thought the -- And there's no part of the Bronx, it doesn't go outside of New York County. I used to -- the new territories today, I always thought the Harlem River was the boundary of New York County. 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. What was that? 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. I didn't -- I didn't quite follow you to your mathematical conclusion. Well sir, Seventeenth District -- Yes. -- 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, -- Now, that per se you're not attacking here. I'm not attacking here -- It's only part of the whole picture. 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. 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. If there were no racial -- if there were no racial considerations here sir, we wouldn't be here. That's my understanding. Is it smaller than New York population? In terms of population, 382,000 against 445,000. (Inaudible) Yes, Mr. Justice. (Inaudible) 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? (Inaudible) disproportion in numbers. 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 -- But at my (Inaudible) -- my (Inaudible) if it's right there was a -- an absolute gain in numbers of -- Well, There was an absolute gain -- -- of Negroes and non-whites and Puerto Ricans. -- 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. So that actually the number of Negroes and Puerto Ricans did increase when they -- when they withdrew the boundaries. 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. Out in the southern there, there you get into Mott Street and so and Chinatown, don't you? 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. Thank you. 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. Instead of going down to the south on the -- in the western half reading vertically. Well, the attorney general has made a point of variability to come down to -- That's right. 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. Will you explain narrowly what census tracts here, if you don't mind? 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 -- It's artificial. It's artificial. (Inaudible) 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. (Inaudible) 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. Is it a geographical unit? The geographical unit determined arbitrarily by the Bureau of the Census for purposes -- They differ in size? Yes, they differ in size. What were the criteria? 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. They are substantially the area of the same size? 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, -- 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? 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 -- If you exclude -- -- to 300,000, you clearly could do it. 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. Justice -- -- 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. And may I say sir a little further. Otherwise, what I'm suggesting to you and this is the typical case with political (Inaudible) 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? Well so you probably (Inaudible) to understand one burden of proof, you're attacking the constitutionality of this (Inaudible) 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 -- (Inaudible) 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. Has anybody been knocked out of voting by this? 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. Then you -- then you are raising the question of numbers, is that it? Well, numbers in a Fifteenth Amendment sense, sir. I think there's an abridgment here. I'm raising the question -- What is the ambiguousness of the discrimination? Racial classification. Is that all? What -- how does it hurt? Well, I don't think -- The injury. I think that the deprivation of constitutional rights is harm, sir. But what -- 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 -- But you mean classifying voters in a particular area because they are with certain color -- Correct, sir. -- 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. That is correct, sir. Is there any other -- The other is the fact -- -- anytime as to how there could be any injury? 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. Then that's all numbers. That's on numbers but that's an abridgment I maintain of -- of -- of voting power. Well, your first -- your first point is really is about the same as an argument against the separate than equal in the -- 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. Mr. Feldman, (Inaudible) is it your argument prior to the legislation of the constitution say that Negroes of New York never (Inaudible) That is correct, sir. And you would say, did affect (Inaudible) under the law. 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. 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? 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 -- What do you mean by neutrally? 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. Where exactly in the -- 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. When was this law passed? 1961 sir, November of 1961. What party controlled the legislature that time? The republican parties control the legislature in New York's -- 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. Sir. Well I have -- Vice versa. 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. You can -- cannot (Voice Overlap) 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 -- 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. 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. And you'd -- you say the purpose now is what? 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 -- (Inaudible) 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. How can you rely on Buchanan against Warley in this case? Well -- 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. Well I'm relying only -- In credo. 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. Well, I wasn't talking about benign, I just want to know what it does to it? 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 -- And another district. Right and it dilutes their ability to influence congressmen in the two other districts. If those lines had not been drawn -- Your argument is for more districts, isn't it, instead of -- 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. Well, you're talking (Voice Overlap) passed the law, which was brought and delivered in a certain district. 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. I don't see the really crooked lines and reapportionments. 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. 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. 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. But if you're right in your basic hypothesis, that would be equally unconstitutional, wouldn't it? No matter how beneficent the purpose -- I -- The classification based on race and race alone? 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 -- I said in some places. Well, I don't know where there was his intention to say it would be constitutional. But -- but you don't say it's constitutional. I do not say it's constitutional. 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. Well, it might well be sir, I still think it would be unconstitutional. Well, might be, I didn't say that. 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. You may. Mr. Galt.
Argument of 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. (Inaudible) Which one was that, Your Honor? Suppose in the (Inaudible) With a district so that in each instance, the concentration of 8th became a separate district though 8th -- I mis -- (Inaudible) From a constitutional standpoint? Yes. 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. (Inaudible) political preservation? Political? Yes, political preservation (Inaudible) 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 -- I gather that your argument here is even they (Inaudible) 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. You have the cases that are decided (Inaudible) 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 -- We'll recess now, Mr. --