National Association For Advancement of Colored People v. New York 8212 129 27 8212 28, 1973

• Decision Date: 21 June 1973
• Docket Number: No. 72,72
• Citation: 93 S.Ct. 2591,413 U.S. 345,37 L.Ed.2d 648
• Parties: NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE, etc., et al., Appellants, v. State of NEW YORK et al. —129. Argued Feb. 27—28, 1973
• Court: U.S. Supreme Court

413 U.S. 345

93 S.Ct. 2591

37 L.Ed.2d 648

NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE, etc., et al., Appellants,

v State of NEW YORK et al.

No. 72—129.

Argued Feb. 27—28, 1973.

Decided June 21, 1973.

Syllabus

Sections 4 and 5 of the Voting Rights Act of 1965, as amended, are designed to prohibit the use of tests or devices, or the alteration of voting qualifications or procedures, when the purpose or effect is to deprive a citizen of his right to vote. Sections 4 and 5 apply in any State or political subdivision thereof which the Attorney General determines maintained on November 1, 1964, or November 1, 1968, any 'test or device,' and with respect to which the Director of the Census Bureau determines that less than half the voting-age residents were registered, or that less than half voted in the presidential election of that November. These determinations are effective on publication and are not judicially reviewable. Publication suspends the effectiveness of the test or device, which may not then be utilized unless a three-judge District Court for the District of Columbia determines that no such test or device has been used during the 10 preceding years 'for the purpose or with the effect of denying or abridging the right to vote on account of race or color.' The section provides for direct appeal to the Supreme Court. The State or political subdivision may also institute an action pursuant to § 5 in the District Court for the District of Columbia, for a declaratory judgment that a proposed alteration in voting qualifications or procedures 'does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color.' The statute also permits the change to be enforced without the court proceeding if it has been submitted to the Attorney General and he has not interposed an objection within 60 days. Neither the Attorney General's failure to object nor a § 5 declaratory judgment bars a subsequent private action to enjoin enforcement of the change. Such an action shall also be determined by a three-judge court and is appealable to the Supreme Court. The Attorney General, on July 31, 1970, filed with the Federal Register his determination that New York on November 1, 1968, maintained a test or device as defined in the Act, and this was published the next day. On March 27, 1971, the Federal Register published the Census Director's determination that in the counties of Bronx, Kings, and New York, 'less than 50 per centum of the persons of voting age residing therein voted in the presidential election of November 1968.' New York State filed an action on December 3, 1971, seeking a judgment declaring that during the preceding 10 years the three counties had not used the State's voting qualifications 'for the purpose or with the effect of denying or abridging the right to vote on account of race or color' and that §§ 4 and 5 were thus inapplicable to the counties. Pursuant to stipulation, the United States filed its answer on March 10, 1972, alleging, inter alia, that it was without knowledge or information to form a belief as to the truth of New York's allegation that the literacy tests were not administered discriminatorily. On March 17, New York filed a motion for summary judgment, supported by affidavits, and on April 3 the United States formally consented to the entry of the declaratory judgment sought by the State. Appellants filed their motion to intervene on April 7. New York opposed the motion claiming that: it was untimely, as the suit had been pending for more than four months; it had been publicized in early February, and appellants did not deny that they knew the action was pending; appellants failed to allege appropriate supporting facts; no appellant claimed to be a victim of voting discrimination; appellants' interests were adequately represented by the United States; delay would prejudice impending elections; and appellants still could raise discrimination issues in the state and federal courts of New York. On April 13 the three-judge court denied the motion to intervene and granted summary judgment for New York. While the appeal was pending, it was disclosed that the attorney who executed affidavits for appellants had not begun employment with appellant NAACP Legal Defense & Education Fund, Inc., until March 9, 1972, and that Justice Department attorneys met with two individual appellants in January 1972 during the course of their investigation. Held:

1. The words 'any appeal' in § 4(a) encompass an appeal by a would-be, but unsuccessful, intervenor, and appellants' appeal properly lies to this Court. Pp. 353—356.

2. The motion to invervene was untimely, and in the light of that fact and all the other circumstances of this case, the District Court did not abuse its discretion in denying the motion. Pp. 364 369.

Affirmed.

Jack Greenberg, New York City, for appellants.

A. Raymond Randolph, Jr., Washington, D.C., for appellee United States.

George D. Zuckerman, New York City, for appellee New York.

Mr. Justice BLACKMUN delivered the opinion of the Court.

This appeal from a three-judge district court for the District of Columbia comes to us pursuant to the direct-review provisions of § 4(a) of the Voting Rights Act of 1965, Pub.L. 89 110, 79 Stat. 438, as amended, 42 U.S.C. § 1973b(a).¹ The appellants² seek review of an order dated April 13, 1972, unaccompanied by any opinion, denying their motion to intervene³ in a suit that had been instituted against the United States by the State of New York, on behalf of its counties of New York, Bronx, and Kings. New York's action was one for a judgment declaring that, during the 10 years preceding the filing of the suit, voter qualifications prescribed by the State had not been used by the three named counties 'for the purpose or with the effect of denying or abridging the right to vote on account of race or color,' within the language and meaning of § 4(a), and that the provisions of §§ 4 and 5 of the Act, as amended, 42 U.S.C. §§ 1973b and 1973c, are, therefore, inapplicable to the three counties.

In addition to denying the appellants' motion to intervene, the District Court, by the same order, granted New York's motion for summary judgment. This was based upon a formal consent by the Assistant Attorney General in charge of the Civil Rights Division, on behalf of the United States, consistent with the Government's answer theretofore filed, 'to the entry of a declaratory judgment under Section 4(a) of the Voting Rights Act of 1965 (42 U.S.C. 1973b(a)),' App. 39a. The consent was supported by an accompanying affidavit reciting, 'I conclude, on behalf of the Acting Attorney General that there is no reason to believe that a literacy test has been used in the past 10 years in the counties of New York, Kings and Bronx with the purpose or effect of denying or abridging the right to vote on account of race or color, except for isolated instances which have been substantially corrected and which, under present practice cannot reoccur.' App. 42a—43a.

Appellants contend here that their motion to intervene should have been granted because (1) the United States unjustifiably declined to oppose New York's mo- tion for summary judgment; (2) the appellants had initiated other litigation in the United States District Court for the Southern District of New York to compel compliance with §§ 4 and 5 of the Act; and (3) the appellants possessed 'substantial documentary evidence,' Jurisdictional Statement 7, to offer in opposition to the entry of the declaratory judgment.

Faced with the initial question whether this Court has jurisdiction, on direct appeal, to review the denial of the appellants' motion to intervene, we postponed determination of that issue to the hearing of the case on the merits. 409 U.S. 978, 93 S.Ct. 310, 34 L.Ed.2d 240.

I

Section 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973,⁴ clearly indicates that the purpose of the Act is to assist in the effectuation of the Fifteenth Amendment, even though that Amendment is self-executing, and to insure that no citizen's right to vote is denied or abridged on account of race or color. South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966); Apache County v. United States, 256 F.Supp. 903 (DC 1966). Sections 4 and 5, 42 U.S.C. §§ 1973b and 1973c, are designed to prohibit the use of tests or devices, or the alteration of voting qualifications or procedures, when the effect is to deprive a citizen of his right to vote. Section 4(c) defines the phrase 'test or device' to mean

'any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class.' 42 U.S.C. § 1973b(c).

Section 4(b), as amended, now applies in any State or in any political subdivision of a State which the Attorney General determines maintained on November 1, 1964, or November 1, 1968, any 'test or device,' and with respect to which the Director of the Bureau of the Census determines that less than half the residents of voting age there were registered on the specified date, or that less than half of such persons voted in the presidential election of that November. These determinations are effective upon publication in the Federal Register and are not reviewable in any court. 42 U.S.C. § 1973b(b).

The prescribed publication in the Federal Register suspends the effectiveness of the test or device, and it may not then be utilized unless a three-judge district court for the District of Columbia determines, by declaratory judgment, that no such test or device has been used during the 10 years preceding the filing of the action 'for the...