Christopher v. Mitchell, Civ. A. No. 1862-70.
| Decision Date | 05 November 1970 |
| Docket Number | Civ. A. No. 1862-70. |
| Citation | 318 F. Supp. 994 |
| Parties | Frederick J. CHRISTOPHER, Jr., Benton Cole, Salvatore Lo Dico, George C. Smith, and Raymond J. Meredith, Plaintiffs, v. John N. MITCHELL, as Attorney General of the United States, and the New York City Board of Elections, consisting of James M. Power, Thomas Mallee, Maurice J. O'Rourke, and J. J. Duberstein, Defendants. |
| Court | U.S. District Court — District of Columbia |
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Alfred Avins, New York City, for plaintiffs.
David Norman, Deputy Asst. Atty. Gen., with whom Thomas A. Flannery, U. S. Atty., Jerris Leonard, Asst. Atty. Gen., David L. Marblestone and Jeremy I. Schwartz, Attys., Dept. of Justice, were on the brief, for defendant John N. Mitchell. David L. Marblestone and Peter L. Strauss, Washington, D. C., also entered appearances for Mr. Mitchell.
Norman Redlich, First Assistant Corporation Counsel of City of New York, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom J. Lee Rankin, Corporation Counsel of the City of New York, Leonard Bernikow, Atty., New York City Law Dept., was on brief, for defendant New York City Board of Elections.
Senator Edward M. Kennedy, of the bar of the Supreme Judicial Court of Massachusetts, pro hac vice, by special leave of court, argued this cause as amicus curiae in support of defendants' position, on behalf of Youth Franchise Coalition and others.
Amicus curiae briefs in support of defendants' position were filed by William A. Dobrovir and H. David Rosenbloom, Washington, D. C., for Youth Franchise Coalition and others, Joseph L. Rauh, Jr., Washington, D. C., for Americans for Democratic Action, Nathaniel R. Jones, New York City, Clarence Mitchell, Baltimore, Md., and J. Francis Pohlhaus, Washington, D. C., for the National Association for the Advancement of Colored People, Melvin L. Wulf, New York City and Lawrence G. Sager for the American Civil Liberties Union, David Rubin, New York City, for the National Education Association, and Stephen I. Schlossberg and John A. Fillion, Detroit, Mich., for International Union, United Automobile Workers; by Leonard B. Sand and Barry I. Fredericks, New York City, for the WMCA Vote at 18 Club; by John R. Cosgrove, Menlo Park, Cal., for Citizens for Lowering the Voting Age—California and others; and by Nathaniel R. Jones, New York City, Clarence Mitchell, Baltimore, Md., and J. Francis Pohlhaus, Washington, D. C., for the Department of Armed Services and Veterans' Affairs of the NAACP.
Prof. William W. Van Alstyne, Durham, N. C., of the bar of the Supreme Court of California, pro hac vice, by special leave of court, filed a brief and argued this cause as amicus curiae (appointed by the court).*
Before BAZELON, Chief Judge, MacKINNON, Circuit Judge, and BRYANT, District Judge.
OPINIONS
At issue in this case are the Voting Rights Act Amendments of 1970.1 These provisions are reprinted in Appendix A of this opinion, but they may be briefly stated. First, the new law extends for five years the operation of section 4(a) of the Voting Rights Act of 1965,2 the primary effect of which provision was to suspend the use of literacy tests in six southern states and part of a seventh state.3 Second, it provides that the 50 per cent coverage formula of section 4 (b),4 which took as its base the 1964 presidential election, may also be computed from the 1968 presidential election figures. In addition, the 1970 Amendments add two new titles to the Voting Rights Act. Title II contains provisions which (1) suspend all voting "tests and devices"5 in states not already covered by the Voting Rights Act as amended, and (2) abolish state durational residency requirements in presidential elections. Title III prohibits states from denying the vote on the basis of age to citizens eighteen years of age or older.6
Plaintiffs are citizens of New York State, over twenty-one years of age, able to read and write the English language, and resident in their respective counties for more than three months. They are qualified to vote under the laws of the State7 and are duly registered. They claim that enforcement of the Voting Rights Act as amended will dilute their votes in forthcoming elections. Accordingly, they seek a declaratory judgment that the Amendments are unconstitutional and an injunction restraining defendants—the Attorney General of the United States and the New York City Board of Elections—from enforcing the 1970 Amendments. Because plaintiffs seek to enjoin the enforcement of an Act of Congress, a statutory three-judge court was convened. 28 U.S.C. §§ 2282, 2284. Defendants moved for summary judgment on the merits with respect to plaintiffs' challenges to Titles II and III; they moved to dismiss those counts challenging Title I or, in the alternative, for summary judgment on the merits.8 Plaintiffs cross-moved for summary judgment on all counts.
We find that Congress did have the power to enact the challenged provisions of the Voting Rights Act Amendments of 1970 and therefore grant summary judgment for the defendants.
These provisions were found to be an appropriate exercise of congressional power under section 2 of the Fifteenth Amendment in South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L. Ed.2d 769 (1966).
The 1970 Amendments extend the provisions of the 1965 Act for five years.13 In addition, they provide that the 1968 presidential election will now be taken as the base for the coverage formula, as well as the 1964 election. Therefore, if in any state or subdivision less than 50 per cent of the persons of voting age residing therein were registered on November 1, 1968, or if less than 50 per cent of such persons voted in the 1968 presidential election, then the section 4 (a) prohibition of literacy tests and other devices shall apply.
Plaintiffs live in counties in New York State which were not reached by application of the old coverage formula. Three of them live in New York County, which they allege will be covered if the 50 per cent calculation is based upon voting and registration figures for the 1968 presidential election. Defendants reply that the Director of the Census has not yet made the determination required by section 4(b) of the Voting Rights Act as amended, because he is waiting for the 1970 census figures on New York to come in.14 Therefore, defendants assert, plaintiffs' attack on Title I of the 1970 Amendments is premature.
The issue raised is a trouble-some one, but after careful reflection we have concluded that plaintiffs' challenge to the amendments to section 4 of the Voting Rights Act of 1965 does satisfy the requirements of standing and ripeness. First, it is clear that there is a danger that section 4(a) as amended will apply to New York County, whenever the determination is made by the Director of the Census. Plaintiffs' assertions to this effect were uncontested by defendants. This danger seems to us substantial enough to satisfy the conditions of standing in the narrow sense.15 Second, it is very possible that the determination by the Census Director will be made before the approaching election in November. Not only may the 1970 census figures for New York be available before the election, but the Census Director may decide that he has a legal duty to make a determination on the best figures available to him before the election is held.16 Third, to the extent that the Census Director delays as long as possible before making a determination prior to the election, judicial review of the statute in time to prevent irremediable harm to plaintiffs becomes difficult.17 Finally, upon our view of the merits of the amendments to section 4, there is no reason for waiting for the issue to be presented in a more "concrete situation,"18 rather than on cross motions for summary judgment. All these considerations persuade us that in the exercise of the discretion required of us in injunctive and declaratory actions,19 we may appropriately find this controversy ripe for adjudication.
Section 1 of the Fifteenth Amendment provides: "The right of citizens of the United States to vote shall not be denied or abridged * * * by any State on account of race, color, or previous condition of servitude." Section 2 provides: "The Congress shall have power to enforce this article by appropriate legislation." The Court in South Carolina v. Katzenbach faced the argument that the Fifteenth Amendment permits only the judiciary to strike down state statutes and procedures—that "to allow an exercise of this authority by Congress would be to rob the courts of their rightful constitutional role."20 This argument was emphatically and unanimously rejected by the Court.21
By adding § 2, the Framers indicated that Congress was to be chiefly responsible for implementing the rights created in § 1....
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Keppel v. Donovan
...abolition of the residency requirements for Presidential elections was upheld by a three-judge court recently: Christopher v. Mitchell, 318 F.Supp. 994 (D.D.C., 1970). Arguably, the state durational residency requirements are less justifiable for Presidential than for state and local electi......