Wright v. Rockefeller

Argument of Irving Galt Chief Justice Earl Warren Mr. Galt. Mr. Irving Galt Thank you, Mr. Chief Justice. May it please the Court. Now, another singular argument of the appellants as I see it and this is an extremely intriguing too, they suggest that the burden shifts to the state contrary to the normal principles applicable in cases because this is a civil liberties rather than an economic regulation case. Now, I submit that that's plainly wrong. One cannot read for instance the McGowan case without realizing that this is just bad law, that is not so. The McGowan case illustrates it very clearly and another interesting aspect of this is that if it were true that the burden would shift on a showing, such as they have made, the -- we would be moving in the direction of requiring a proper proportionate mixture of the races in the various districts as I've noticed be -- as I've noted before, and any district would be suspect, constitutionally suspect when it didn't have the same racial proportions as its neighbor, and therefore, the state would have to move, as I said, in this direction of a proper mix, and I think that this can be summed up very quickly. The point is they had to show at the very, very least an absence of other -- any other substantial purpose for the redistricting. In other words, they had to show that race was a more likely basis for the district lines than the other and much more usual basis of districting, and I would suppose -- Justice Potter Stewart They didn't -- they have to show that race, I don't mean I show by evidence, so and so which could of course be an inference of circumstantial evidence but didn't they have to show that under your view that race was the only basis. Mr. Irving Galt Oh yes, under their view. Justice Potter Stewart Under their view. Mr. Irving Galt As a matter of fact I would say that the -- but the point is that they did not even show and we'll establish this even further as we refer to the specifics. They didn't even show by any stretch of the imagination. They fell far short of showing that race was the basis for this districting. And I -- I would suppose that the only way they could show what I've just alluded to, that is that race was a more likely basis, is to demonstrate that the state went about this in such a determined, persistent way to borrow Mr. Feldman's own phrase, twisting and turning in and out, a ferreting out of a cluster of a minority here, a block of the minority there in a -- in what might enormous be called a paranoid tendency to see to it that these two sharply contrasting districts, Lily White and all Negro Puerto Rican, are setup side by side. And I -- I will show that they are far, far from presenting anything of a case in that regard. Now, I say they failed to present the prima facie case on the facts here and they relied on four particular avenues of proof and they were illustrating that in a sense when Mr. Feldman was pointing to the map and going around boundary lines and that sort of thing, and the first of the four things that they relied on and they failed and failed utterly in all four, the first of these four, and we'd gone over to -- gone over to some extent and I won't dwell upon it, is the sharp disparity between the districts in the way of a racial concentration and all that this does as I pointed out before to reflect the tendency of minorities. They live together and only one thing in this connection might be of special interest and that is the hypotheticals to which the appellants referred both of the trials below and to some extent here. First, they had in their proof before the statutory court. They were allowed to testify the hypothetical expansions of the 17th District and one of these expansions which involved locking Stuyvesant town, that would be this end so that's all right. The Stuyvesant town would be the area in here Your Honors. I think this map is the one which you can most easily see, I think it will suffice for our purposes. The Stuyvesant town additionally in over here, this was one expansion, if this would drop from the district, the western border strait and if the districts were expanded north in Behala, this was one of the hypotheticals, and interestingly enough, what did the 17th District come up with in the way of a percentage of Negroes and Puerto Ricans? 8. -- 13.8 in comparison to the present 5.1. And again, on another -- on another change of boundaries to enlarge the 17th District, what is the percentage this time? 8.5. Merely driving home harder and harder, the fact that any way you do it, it still comes out that if you're anywhere in this neighborhood and you're concentrating in -- more or less in concentrating the group that remains in it, these are the kind of percentages with some variation that you're going to have. And then there are other hypotheses and I won't -- I won't show you the hypothetical -- the three hypotheses which the plaintiff was referring to and pointing to earlier, Your Honors will recollect them various ways of dividing the county north and south, east and west in four or five permutations or combinations in this sort of second guessing the legislature game. I submit that we could easily in a county like New York give Your Honors a thousand of them. I don't see the point to it, but I do see one point which I think in the appellant's own hypothesis will be of interest to Your Honors and that is again, using all these criteria which of course, as Your Honors pointed out during Mr. Feldman's own argument are not legal criteria sense of track which are purely arbitrary. In the record, you will define them as arbitrary things. You will find that a enumeration districts were arbitrarily done is not the senses. It's not the United States senses what does congressional redistricting, it's the New York state legislature but coming back to these hypothetical districts, it's very interesting that in one of the hypothetical districting -- districts, I think its -- exhibits 6 (b). They have a percentage of 9.5, a little less than twice the present percentage of Negroes and Puerto Ricans, a very negligible percentage when we're viewing it in that context and even though Mr. Feldman may say that this end result doesn't matter, I simply must wonder and I confess that I do but what all the shooting is about because if this were to be an exercise in futility, if by some peculiar formula, the New York legislature could go about it or were to go about at Mr. Feldman's way that came up the same way, evidently he'd be perfectly satisfied and I don't know what we're doing in court if that be the case. However, the interesting thing is that even their hypotheticals are pretty close to the existing situation in some cases. Now, they said in their argument and this is where Mr. Feldman was performing surgery, he was talking about the scalpel that the New York legislature uses and I submit that I've got only one thing out of that, and that is that the New York legislature even surgically speaking, as Mr. Justice Harlan pointed out, could well have done a much, much better job but let's take the flat statement that they make. The 17th District could not possibly be expanded or straightened without altering its racial homogeneity. Well, that's not even borne out by the record. For instance, let me point out this to Your Honors, if I may, and if there's any slight inaccuracy of my recollection of my figures, I'm sure I'll be swiftly corrected. But, Mr. Feldman pointed to this section because this was a -- this section just (Inaudible) of the new 17th District line, the 1961 newly created line, and anticipating our argument and recalling of course some of the skirmishing in the court below, Mr. Feldman was quick to point out that even though this has a very low concentration of Negroes in this -- in this particular portion outside of the 17th District. And even though it's a highly concentrated wide area, it was not included in the 17th District and why said Mr. Feldman when it would so obvious if he used his own expression, the New York legislature were twisting and turning and using the scope of the such devastating effect, why then would they leave this area here, and I submit that Mr. Feldman hasn't answered. In the first place, the reference to a housing project; to begin with, the housing project is only in this track, the smaller track here between 93rd and 95th Street east of First Avenue at -- in this direction but this other track alone without reference to what's left over in this track has something like 7,500 people. The entire track I believe is 10,000 in sum -- 10,000 to 11 in that neighborhood and then Mr. Feldman managed and produced a letter in the court below while we're in the process of the closing arguments, he got a letter from the Board of Estimate which is in the record. I think it's in Exhibit 7, but this letter said that in 1959, a resolution for a housing project was passed between 93rd and 95th Street. And that at some date, not specified in the letter, and this letter was written in August of 1962, the end of the month when we were concluding the trial of this very case, at some unspecified date a tentative expansion of two blocks and the 93rd to 91st but still in the same area it was planted. Now, I submit, that beyond any and all possibility, the legislature very easily if it were bent on what Mr. Feldman has pictured as the senator's purpose very easily could and would have put this in. If it were exhibiting this paranoid tendency to ferret out here and ferret out there, to include here and to exclude there, this is the most obvious thing that they could have done. Now, in Stuyvesant town; Stuyvesant town was added; of course the district has to be enlarged. The only districts in Manhattan had to be enlarged. They were to be 43 districts -- 41 districts instead of 43. New York County had to have four districts instead of six and this was one single project right down here at the southern -- southeastern portion which -- and right up here is Peter Cooper, already in the district. When Mr. Feldman mentioned it, I don't think that was made clear to the Court but Peter Cooper and I think most of Your Honors may -- maybe familiar, have seen physically this thing Peter Cooper and Stuyvesant town are almost indistinguishable to the eye when one goes by even a native of New Yorker like myself. I doubt I'd like to tell when I left Peter Cooper and when I've arrived at Stuyvesant town. When I go buy in a car, I do not know the difference and that was added on. Now, let's take some of these -- these border track situations, the southern border. There are many tracks fall around, I won't be able to get them all and time won't permit it but I think by a few illustrations, it should be fairly simple and clear to show that by no means that the New York legislature do the efficient surgery which Mr. Feldman was so picturesquely describing to the Court not to many in its regard. But over here, this area right here, Mr. Feldman dismissed this area rather summarily I thought and the actual figures are 6,862 with a percentage of 12.2 Negro and Puerto Rican, making a total of about I think, 837. And the evidence shows at page 88 of the record, this would have been added and the white population would have been increased and even me I could tell going around this district. For instance, let's take south of west four and west third of this area which again, Mr. Feldman rather lightly dismissed. In the area are 3,000 -- there are 1,062, no. Below this area, 3,000 to 3,500 people according to the testimony which was at the -- at page 69 of the record and there is 10 to 15% concentration in the area, it's another area which we went at. And what explained this little triangular area if the chairman of New York State Legislature with this paranoid bent of mind so were destructively set on creating purely equal districts of an opposite racial characteristics. Why leave this pocket? The figures for this pocket are 1,062 people of which approximately 375, 35.9% and maybe 380 -- 365 but approximately that number of Negroes and Puerto Ricans in this area and we can see that going all around. Some of these western border situations are also interesting. One can look visually at this presentation of Mr. Feldman on this exhibit and see nearly from the coloring on the track -- on the census tracks of what the situation was that Mr. Feldman found it necessary to go with the such shades of differences at the -- percentage difference in the same overall percentage tracks on one side of the other. We can reverse that if we want to go up to, for instance, 62nd to 66th Street. I don't know exactly where that is here but it's somewhere -- must be somewhere along here. Mr. Mahoney points through that this is it. You can tell by the coloration of the tracks. In this area, you will find 149 on a 16.6 percentage inside, a 149 inside the district and only seven on a 7.8 percentage outside the district. So what do Mr. Feldman's elaborate travelogue and elaborate trips around the borders of the district show? It only shows that if you hold it up, the more careful analytical inspection, you are much more likely to find the opposite than in any other way. Now, and I just want to add one more thing to this matter of expansion. This -- this whole thing is absurd. It seems to me the 17th is not underpopulated. Let me make it very clear to the Court that New York voluntary and without any requirement of law, voluntarily adhered to withstand it in its Congressional Districts and I will say, without fear of contradiction that among the large states at least that is the best in that regard that maybe in the ban among all states, it certainly close to it among all 50, but New York voluntarily adheres to a population variation of 15% from the average district, and these Manhattan districts, the largest, has a variation of 9% from the state average and the smallest, the 17th which we've been discussing so much a variation of about 7%. And I can't understand the context in which Mr. Feldman uses it, unless he's suggesting and this is a very interesting theory too in itself, unless he's suggesting that somehow there's a constitutional standard by which if you're going to have more population in one district than on another, the one district being Negro or Puerto Rican or some other minority group and the other being white that constitutionally one race must be in the lower population district so that there be not overrepresentation with respect to the other race. This is all I can gather from the argument because otherwise, what significance these populations have? New York surely is not being assailed because of its deviation from a population standard and the creation of its Congressional Districts and I can see no other relevance to Mr. Feldman's argument but that. Now – Unknown Speaker (Inaudible) Mr. Irving Galt How many districts in New York? 41. There we're 43 prior to the redistricting. Unknown Speaker (Inaudible) Mr. Irving Galt I'd -- I would assume that there maybe some that are county lines, but as far as I know, that hasn't been the primary basis. Certainly, in the Metropolitan area, the county lines have not been the basis. As a matter of fact, we see today's four districts wholly contained within Manhattan Island, that's the county of New York, and there was a time and this ties into the history of Congressional Districting in New York County and that we'll show again the fallacy of all of Mr. Feldman's assertion. But there was a time until about 1941 when we have in the records the maps of the 1911 redistricting, the 1917 and some other dates, 1920 something -- I think it was 1922, 1941, 1951 and the present 1961. But there was a time until at least the 1941 districting and I'm not sure from my own recollection what but that this maybe -- and may have been true likewise of 1941, but there was a time when New York County Congressional Districts spread over the waters to Staten Island, on to the Bronx and all that. I may not remember the detail but they are in the record and that the county lines were disregarded, so I would assume Mr. Justice Black that congressional -- as far -- from the standpoint of Congressional Districts, I think I'm correct in saying that county lines are not the critical thing. Unlike – Unknown Speaker (Inaudible) Mr. Irving Galt In New York? Unknown Speaker (Inaudible) Mr. Irving Galt Yes, yes. This will do -- this usually will follow the street. In fact, I think they do and here again, let me -- pardon? Unknown Speaker Ordinarily? Mr. Irving Galt Ordinarily in the City of New York and here again, let me make -- pardon? Unknown Speaker (Inaudible) Mr. Irving Galt Yes and here again, let me make some references. Mr. Feldman spoke very eloquently about physical boundaries. Well we know, of course that New York County does not have a lot of rivers running through it, no mountains or anything like that. We have Central Park. We have other parks, but obviously and I think every justice of this Court must know it, these are not the important boundaries in New York. If we want to look into boundaries and criteria like boundaries, anyone of the justices and I'm sure some of the justices of this Court may have done it if we stand up here, I can't quite reach it, at 98th Street, 96th Street here, and Park Avenue, I think this is the juncture here up around the end of the boundary line there and one can look to the northeast and see right across the street from he's standing on Park Avenue of all the squaller in the world. All the poor neighborhood that you want and just turn slowly around in the other direction and look south and southeast and you'll see a neighborhood of luxury apartments of, apartments of great magnificent -- magnificence. These are differences that you might see but what significance traffic lights or crossway through fares or anything like that I can't possibly see. Now, they have relied on the history of the 17th and 18th Districts. They have said two blocks were prodded up here. And -- and then in rearranging the district, there wasn't much difference in the step configuration but you'll notice this little portion from the red line to the green line. Simple explanation, that's Mount Sinai Hospital. Mount Sinai Hospital now expands this entire distance and the streets, 100th Street that's in the record, one of the plaintiff's own witnesses testified to that. Now, the street is closed and it's a physical fact, no one will dispute it, though it makes sense to put the hospital in one district than the other. The total of people in it and I suppose they were mostly residents in terms of people (Inaudible) only 800. The percentage I don't recall it correctly. Mr. Feldman will correct me if it's much over 50% Negro or Puerto Rican, I don't believe that it is, and that fact holds the unit as far as Mount Sinai Hospital up there and that border is concerned. Now, the Stuyvesant Town addition I mentioned before, there was that need for expansion and that -- and I also mentioned that the areas around here, the only significant change is the red line will show us taking in district and why is Mr. Feldman's suspicions about the New York legislature were correct, it didn't go up here and no one will ever be able and successfully to explain, like they put in this and that's the change. They built on the lines that existed. Here is the 1951 line, the green line. And essentially the district added present configuration. I think too it did very largely in 1941, but doesn't it make sense to build on the same Congressional District lines? After all, what does a congressman do? He represents people and people in a certain area have political clubs built. You have all of these things. It will -- will a legislature in its right mind tamper with the existing politics of the people in that sense? There's reason for it and what the legislature did -- Justice Byron R. White (Inaudible) Mr. Irving Galt The green -- the green is 41 or 51. I beg Your Honor's pardon, 51, I'm sorry. Justice Byron R. White (Inaudible) Mr. Irving Galt That's to prior for it. Justice Byron R. White (Inaudible) Mr. Irving Galt If Your Honor please, I don't know but this was the existing border. There were six districts in New York at the time. I -- I will say this, the record doesn't show it. You'll notice that one of the allegations in the complaint is that historically, these districts were bad in the same way. Repeated efforts were made to do something about it. New York legislature never did anything but the fact of the matter is that the appellants or the plaintiffs never came forward with an iota of proof about it. And the record is bare of any suggestion of anything sinister there. If -- if Mr. Feldman wants to take the position that it's unnecessary to prove it, fine. We think it's unnecessary to prove it because there isn't anything things to prove anyway but if it's unnecessary to prove it then we can't expect to find in the record any explanation of this particular configuration. The only thing it does suggest that is perfectly logical to me is that the legislature did a magnifying job in improving the physical contours of the lines. They now are much more regular than they were before. Mr. Justice White's question implicitly suggests that and the only thing I could tell you is that if a legislature did anything, they did quite a nice job of regularizing the district now that we only had four instead of six. Now, I think I can sum up the evidence to say -- well, perhaps I better not sum up any evidence. My time remaining is less than three minutes. I don't believe I'll even be able to argue a lot and some of the time Mr. Sander will have -- I only regret that I cannot. I think rather than start upon a new course of argument which I won't have time to develop, I will simply say that I'm very appreciative of the Court's indulgence and consideration in this and in the prior WMCA case and turn over the argument to Mr. Sandifer. Chief Justice Earl Warren Mr. Sandifer.

Argument of Jawn A. Sandifer Mr. Jawn A. Sandifer Mr. Chief Justice, may it please the Court. I represent the intervenors in this action. The intervenors consist of Congressman Adam Clayton Powell of the 18th Congressional District together with all of the district leaders who are also comprised within the 18th Congressional District, all of them are Negroes with exception of one Puerto Rican district leader in the 14th Assembly District. All of the intervenors are members of the Democratic Party and as a matter of fact, they are all members of the County Executive Committee. Now, we take the very limited position here before this Court that the plaintiffs did not make out a prima facie case that the lines under attack were drawn based upon a racial consideration. As a matter of fact and I might say to Your Honors that that position is consistent with the position that was taken by the intervenors in the court below. We do not feel further that this particular case falls within the mainstream of the civil rights cases that have been decided by this Court. I would only refer Your Honors to pages 121 and 122 of the record that is before you. You will note in the opening part of my argument in the court below, I specifically stated to the Court that if I personally believed for a moment that the basis for redrawing the lines in the 17th Congressional District were based upon race or place of origin, I would be the first to join the plaintiffs in the relief which they were seeking here. And on page 122, in response to the question that was put to me by Judge Feinberg, when he said, "Is it your position that if they were drawn on a racial basis, you would agree with the plaintiffs that that was unconstitutional?" And my answer unequivocally was, “I would wholeheartedly say yes.” Now, I want to take this opportunity Your Honors to specifically disagree with the position that Mr. Galt took in response to Mr. Justice Goldberg's question and in further response to Mr. Justice White's question. I take the position completely and unequivocally that if the state legislature used race as a consideration in drawing of these district lines that the lines would be absolutely unconstitutional and the Court would have to so decide. That's the position that I take. I do not associate myself with that position. I want to say further that there's some reference in the record here before the Court and I think there's some reference in the plaintiff's brief that we are arguing for what we consider and deemed to be good segregation. I think that Judge Feinberg uses -- makes that remark. I say that there is no basis in the record before this Court for that particular statement. We do not argue that. I don't think there is any such thing as good segregation. I think Judge Feinberg probably drew that inference from the affirmative defenses that were originally raised by the intervenors in the original action but I would call the Court's attention to the fact that the affirmative actions were dismissed by the court below at the conclusion of the entire case that those affirmative defenses are not a part of the record before this Court, that the only on record before this Court is the position that we took below that the defendant -- that the plaintiffs had not made out a prima facie case and that is the position that we have here. Now we do however, and I want to make our position perfectly clear, we do however reserve the right to utilize our voting strength and power to what we deem to be our best advantage as we find large segments of our Negro population concentrated in one particular area. For that we do feel that we have a right to utilize that voting strength to the best of our ability. We have very little control over the situations that exists as far as Harlem is concerned because of the housing situation that we are confronted with in the State -- in City of New York. But so long as a Negro, as a race of people, are not free to participate and move freely in an open society, we will find the Harlems throughout the United States, not only in New York but throughout the United States, and so long as these Harlems do exist such as the 18th Congressional District in Harlem then we'll feel that the State does not have the right to single out the Negroes and to phenomenally disperse them into other Congressional Districts on Mr. Feldman’s theory that they can be more effective if that is done or that the efforts and desire on the part of Mr. Feldman here is to deprive the Negroes that what has happened here that Negroes has been deprived of their influence in the other three Congressional Districts because I might only remind Mr. Feldman of the situation as far as the Stuyvesant section of Brooklyn for an example where we have far more Negroes concentrated than we do right in Harlem in the 18th Congressional District. Some 450,000 Negroes in Stuyvesant and I would ask Mr. Feldman or anyone else whether or not a Negro has ever successfully run for Congress and has been elected in that particular Congressional District. We might also refer to Bronx County particularly in southern -- the south -- southern part of Bronx where the big figures are equally substantial or to Queens where Negroes in these large concentrated areas for the very reason to the fact that Congressional District is drawn in such a way that the Negroes are not to be elected from those particular districts. The intervenors that are here in this particular case before the Court today, every single Negro that's in the state legislature in the Manhattan County that we are talking about, every single Negro that is a district leader that in the state assembly are in the City Council all comes out of the 18th Congressional District and not single Negro district leader would you find in any of the other three Congressional Districts. Now, if there was any proof and I will make this position clear also, that if the lines were drawn on a racial basis as has been suggested by Mr. Galt here are raised in what's in consideration, I don't think and I made the statement of Judge Feinberg below that I don't think that Negro that you would even have to go so far as the show that there was any advantage or disadvantage that flowed as result of the lines having been drawn on a race basis. I think if you found race involved regardless of whether it was an advantage or disadvantage, I think that the Court would have to hold that that statute was unconstitutional. But since Mr. Feldman has advanced this argument that Negroes would be better off if they were dispersed among the other three Congressional Districts, I would have to post -- pose that particular questions as to whether or not a Negro who has been boxed out of the 17th Congressional District or -- or Puerto Rican has been boxed out, whether or not if that line was redrawn to include that particular Negro or that Puerto Rican, whether or not that Negro or Puerto Rican would find himself any better off than he would have been if he remained in the 18th Congressional District. I suggest that when that Negro woke up that next morning or the Puerto Rican woke up and found that he was still in the slum, that he still economically was at the bottom of the ladder, that he still was without a job or was gainfully employed, that his children still were going to the work schools in the community, that there was the very little difference in far as he was concerned politically as to whether or not he was any better off than he would have been if he had remained within the 18th Congressional District. Now, I'd like to just go for a moment, if I may, to the two lines of cases that are relied upon by the plaintiffs. First all, the Gomillion cases, I think it was Judge -- Mr. Justice Black who pointed out almost in the very outset of Mr. Feldman's argument. The Gomillion case is so obviously distinguishable from the issue that involved in this case that it doesn't need to be belabored at all. Obviously, in the Gomillion cases, where 400 Negroes has been cut out or boxed out of Macon County, that not only were these Negroes deprived of the right to vote but they were deprived to many other municipal facilities which they had previously enjoyed. There's no such showing in this case at all. I would even submit to the Court that but for injection of the issue of race in this case that this case would have been no different from Baker versus Carr and the very fact that they have cited this particular Gomillion and relied upon it together with de facto school cases does not bring this case within the purview of either one of those cases. Now, throughout Mr. Feldman's brief, he relied heavily upon Branche versus Board of Education of Hempstead. It so happens that I personally handled that case for the New York State Conference and the National Association for Advancement of Colored People and argued that case before Judge Dooling and the whole program or the whole thrust of our arguments and all of the de facto school cases throughout the state of New York is based upon the fact that the Court has found that Negro children were educationally disadvantaged as a result of the segregated schools that they have been going to and this is the thrust of our argument. And I submit that even the findings of the Commissioner of Education of the State of New York in this de facto field, takes these cases completely outside of the purview of the argument that is advanced here, that the Negroes are being politically deprived to some right and some enjoyment by being placed in one Congressional District as opposed to another. I don't think that that argument is sound. I don't think that it is consistent with the whole theory of the de facto school cases at all.

Argument of Justin N. Feldman Mr. Justin N. Feldman Mr. Chief Justice, may it please the Court. I'm interested in this dissent of this argument. I won't devote much time to it because as I read -- heard this argument, what he said was, "If segregation had been proved here to the point where I couldn't deny it, I wouldn't be here," but under the circumstances, I'm here to tell you that I like segregation in the 18th Congressional District because that's how -- the way we become leaders in the 18th Congressional District. That's the way we became -- we as intervenors became leaders. It's got nothing to do with the question of the rest of the community or the individual rights or the rights of the rest of the group and that's the whole theory of this -- the whole problem with this benign code of concept. Whom does it advantage and whom does it disadvantage? And I suggest that -- Justice Potter Stewart As I understood, as I understood Mr. Sandifer's argument is -- it was this that that if it were shown indisputably or by proof that -- that this -- that New York State had divided its Congressional Districts on -- on racial -- on racial lines and he -- and he disagreed with Mr. Galt to think that that was unconstitutional state action, but he further went on to say first that he didn't think there was any proof of that in this case and later in his argument he pointed out that there is in fact de facto, segregation if you want to call it that, certainly concentration of these Negro and Puerto Rican groups in Harlem as all the world knows. Certainly, everybody in New York knows that. Mr. Justin N. Feldman That is correct sir, but as we also showed by the use of the neutral lines, this fact means that there will always be a majority of Negroes and Puerto Ricans in one Congressional District. Unknown Speaker (Inaudible) Mr. Justin N. Feldman That -- that is -- Unknown Speaker (Inaudible) Mr. Justin N. Feldman -- that is correct sir. But no matter how this population shifts, I submit, that with the 40% of the population of Manhattan being Negro and Puerto Rican, if we have four Congressional Districts, it becomes well nigh impossible not to have very substantial influence and the proof of their influence sir without this benign need to -- to gerrymander is the fact that since 1953, the one single constituency officer in the city of -- in New York County, Manhattan has been a Negro. The Negro borough president of Manhattan who's elected since 1953 because of this 40% situation so that you don't need the jam Negroes into one area in order to make this advantage, give them this disadvantage. I submit further that this is an unimaginable standard and one which if the Courts were ever to get into would become complete -- make a complete morass of the judicial -- install complete morass in the judicial system. Unknown Speaker (Inaudible) Mr. Justin N. Feldman Right. Unknown Speaker (Inaudible) Mr. Justin N. Feldman I have no problem. Unknown Speaker (Inaudible) Mr. Justin N. Feldman I have no problem sir. Unknown Speaker (Inaudible) Mr. Justin N. Feldman I could look at those lines and say these are what I called neutral colorblind lines and this is the way it works out and this is the way it has to be. Unknown Speaker (Inaudible) Mr. Justin N. Feldman Well sir, I think in a racial classification case, it's no more necessary that I vitiate those theories than I vitiate them that would have been necessary for the plaintiffs in Johnson against Virginia to come in and prove that the distinctions in that courtroom were not based upon the fact that the people on the left side are less than a $1,000 a year and the people on the right are -- side earn more than a $1,000 a year. There are many possibilities. Am I supposed to vitiate the fact that maybe there are more gasoline stations in one district than another or more green houses or blue houses or yellow houses. I don't know there are a lot of other available inferences theoretically and once I've shown the racial classification, I say this burden shifts and the state must come forward to explain what the real reason was. Now, Mr. Justice White asked about the former jagged lines. There are explanations to that. I think anybody in those New York, those at this particular area has changed, the long East River Drive and Eastern Avenue. This was jagged at one point, it's not jagged now. The racial composition is good. I might point out that Mr. Galt benefits that -- I may point out that for the benefits of the Court, excuse me, [Attempt to Laughter] that this area that was dropped is, as he said, 50% Negro and Puerto Rican, the relevance of it being a Mount Sinai Hospital was nil because it was Mount Sinai Hospital before. And as far as the history of the county is concerned, these districts were cut in parallel lines as you'll see from defendant's Exhibit C, I believe it is. In 1911, when the population of the county was 2,300,000 and there were only 600 -- or excuse me 60,000 Negroes, and in 1921, when the population of the Negroes was small, parallel lines, no need for it. These kinds of line started to develop in 1941 when the population of the county was 1,900,000 and we had 300,000 Negroes. We don't have a separate figure for Puerto Ricans because they didn't take separate figures for the census at that time, that's when jagged lines developed. And if they were going to build on historical basis, why was it that instead of adding this area, they didn't add the area that used to be in the 17th. You know, it used to go up along between Central Park and Western Columbus Avenue all the way to 97th Street up to 1941, when they dropped that out, because as you can see the composition of the map, this was a much more preferable area. Wherever they had the choice, they made that kind of choice. If they were straightening lines, why not straighten it along with the northern border or along the park in 110th Street and equalize the size of the district, why not? They must tell us. We can't be expected to rebut every available inference. There are a myriad of inferences and this kind of burden cannot be placed upon plaintiffs in a segregation case. It would mean that you would just never could prove segregation because you are never going to catch the eyewitness from the legislature. Unknown Speaker (Inaudible) Mr. Justin N. Feldman That's -- Unknown Speaker (Inaudible) Mr. Justin N. Feldman Well, in the -- in terms of these steps sir, as I said in the old district, the steps were contrived because this area has Negroes and Puerto Ricans. Unknown Speaker (Inaudible) Mr. Justin N. Feldman Yes they basically drew across here but they still have steps up here and it's assonantly this step Mister -- or Justice White maybe interesting to you because this one that this two block area that was draft that Mr. Irving Galt refers to as Mount Sinai Hospital was two to one republican in enrollment so I don't know why they wouldn't have included that one in the district if the motivation was political. But the point is this is the difficulty with all of these so-called available inferences. Why is New York entitled to have us rebut such inferences? It wouldn't be available at -- to them in other states. This question wouldn't arise on this proof and I said -- Justice Byron R. White (Inaudible) Mr. Justin N. Feldman Yes sir. Justice Byron R. White (Inaudible) Mr. Justin N. Feldman Sir, in the segregated -- Justice Byron R. White (Inaudible) Mr. Justin N. Feldman In a segregated -- in a segregated situation, vested rights develop in leadership groups. And it is sometimes convenient for a white group to service the Negro leadership and vice-versa and that is one of the difficulties with Mr. Sandifer's argument in this benign coded theory and it was very easy to make this arrangement on (Inaudible) the Negroes into the 18th and giving at all white district to somebody else, perhaps not the course enough lack of political difficulty for someone, I don't know but nevertheless, I don't know what their purpose was. They classified on the basis of race. Justice Byron R. White The entire of the 18th (Inaudible). Mr. Justin N. Feldman I don't know the motives sir. I am unable to determine motives and I don't know that motive is constitutionally relevant in this instance. Certainly, as Mr. Galt -- Justice Byron R. White (Inaudible) Mr. Justin N. Feldman Let me say one other thing sir, as I showed from our -- if you find Exhibit 6 (a) or 6 (b) and incidentally Mr. Galt makes the point about that that one of the districts would have had only 9.5 Negroes and Puerto Ricans instead of the 5%, in that situation where one district had 9.5 almost twice as many Negroes and Puerto Ricans percentage wise as we have in the 17th, you would have two districts with almost 60% Negroes and Puerto Ricans and that both may well have been on the part of the legislature to make certain that there was only one Negro and Puerto -- or Puerto Rican congressman from Manhattan. Justice Byron R. White (Inaudible) Mr. Justin N. Feldman No, ,my suggestion is that what they produced was something that they wanted to, no Negro influence in the 17th -- Justice Byron R. White (Inaudible) Mr. Justin N. Feldman -- and only one Negro congressman in Manhattan. Because by arranging at that way sir, there would only be one Negro congressman from Manhattan where is if you drew the line across in parallels with equal size districts, you would have two districts at 60% Negro and Puerto Rican. Justice Byron R. White (Inaudible) Mr. Justin N. Feldman It wouldn't get to the 17th but it would -- but it would mean if I get to somebody else, I don't know sir that's the -- Justice Byron R. White (Inaudible) Mr. Justin N. Feldman No sir, I'm not saying it's political, it's -- Justice Byron R. White (Inaudible) Mr. Justin N. Feldman They want to avoid two Negro congressmen instead of one, yes sir you might say it's political because they are talking about congressmen instead of visitors to a courtroom or a golf course but they are avoiding two Negroes instead and having one instead and I don't see that that makes any difference between the courtroom and the golf course, excuse me sir -- Unknown Speaker (Inaudible) Mr. Justin N. Feldman Alright sir that's traditional. I'm glad you asked that question. There's probably one -- one problem with that. The percentage of Democrats, they were all Democrats, in this new 17th that they created is much higher than it was in the old 17th. Not just numerically higher because they added voters; they added more people, but it's percentage wise higher. This Stuyvesant Town area -- Unknown Speaker (Inaudible) Mr. Justin N. Feldman We'll go -- Unknown Speaker (Inaudible) Mr. Justin N. Feldman No sir, we'll give you those figures too. They wouldn't have you see because you don't have as much -- that the higher -- as higher percentage necessarily in your -- in your enrollment, but the point is that had gone in my direction, they would have not picked up proportionately anymore Democrats. Unknown Speaker Going straight north? Mr. Justin N. Feldman Going straight north. They would not have picked up proportionately more Democrats than they did in Stuyvesant Town, in terms of enrollment, in terms of enrollment. Unknown Speaker In terms of votes. Mr. Justin N. Feldman In terms of votes. Justice Potter Stewart Who's the candidate? Mr. Justin N. Feldman I don't know sir. Chief Justice Earl Warren (Inaudible) Mr. Justin N. Feldman No sir, I do not think so and certainly not well but I don't know or were no findings of fact in the court below. Chief Justice Earl Warren (Inaudible) Mr. Justin N. Feldman Sir the -- in order that you'll agree with me, I think if you would, would you disagree with Judge Feinberg's only available inference test and the inference of the economic and social classification that he made which was unsupported by the record which I think you can re -- review de novo. It would, it would require a reversal. Thank you very much.