United Jewish Organizations of Williamsburgh, Inc. v. Wilson

• Decision Date: 06 January 1975
• Docket Number: D,No. 1251,1251
• Citation: 510 F.2d 512
• Parties: UNITED JEWISH ORGANIZATIONS OF WILLIAMSBURGH, INC., et al., Plaintiffs-Appellants, v. Malcolm WILSON, Governor of the State of New York, et al., Defendants-Appellees, N.A.A.C.P. et al., Intervenors-Appellees. ocket 74--2037.
• Court: U.S. Court of Appeals — Second Circuit

Page 512

510 F.2d 512

UNITED JEWISH ORGANIZATIONS OF WILLIAMSBURGH, INC., et al Plaintiffs-Appellants, v. Malcolm WILSON, Governor of the State of New York, et al Defendants-Appellees N.A.A.C.P. et al., Intervenors-Appellees.

No. 1251, Docket 74--2037.

United States Court of Appeals Second Circuit.

Argued Aug. 16, 1974.

Decided Jan. 6, 1975.

Nathan Lewin, Washington, D.C. (Miller, Cassidy, Larroca & Lewin, Washington, D.C., Dennis Rapps, Brooklyn, George D. Zuckerman, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of the State of New York, New York City, of counsel), for defendants-appellees Wilson, Ghezzi, Anderson and Duryea.

N.Y., of counsel), for plaintiffs-appellants.

Gerald W. Jones, Atty., Dept. of Justice, Washington, D.C. (David G. Trager, U.S. Atty. for the Eastern District of New York, J. Stanley Pottinger, Asst. Atty. Gen., Walter Gorman and S. Michael Scadron, Attys., Dept. of Justice, Washington, D.C., of counsel), for defendant-appellee Saxbe.

Irwin L. Herzog, Asst. Corp. Counsel for the City of New York, New York City, for defendant-appellee The Board of Elections of the City of New York.

Eric Schnapper, New York City (Jack Greenberg, New York City, of counsel), for intervenors-appellees.

Before OAKES, Circuit Judge, and FRANKEL and KELLEHER, District Judges. ^*

OAKES, Circuit Judge:

This appeal brings us close to full circle in respect to reapportionment--all the way back from Baker v. Carr almost to Colegrove v. Green. It poses the subtle question whether a federal court should interfere to invalidate on fourteenth or fifteenth amendment grounds a state legislative districting plan for two counties specifically drawn to ensure nonwhite voters a 'viable majority' or a 'realistic opportunity for minorities to elect a candidate of their choice' ¹ in state senatorial and assembly districts. The question is made no less complex by virtue of its being brought by a group of Jewish organizations and individuals, speaking for the Hasidic community in the Williamsburg section of Brooklyn, New York, but addressing themselves to the effect of the districting upon them qua white voters as well as qua members of the Hasidic community. Further added to this recipe for judicial perplexity is the fact that the districting scheme was enacted after disapproval of a prior districting by the Attorney General of the United States (hereinafter 'the Attorney General') on the basis of the State's abridgement of the right of nonwhites to vote, such objection operating to forbid utilization of the prior districting by virtue of the applicability of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973 et seq., to New York's Bronx, Kings and New York Counties. The district court dismissed the complaint, holding that the plaintiffs had suffered no cognizable injury and that 'racial considerations' had been permissibly employed in the later districting 'to correct a wrong.' We affirm, for reasons that differ somewhat. ² A history We then return to 1972 when, in January, the State of New York altered the Senate and Assembly lines in Kings County in view of population changes evident in the 1970 census. Laws of New York (1972) Ch. 11. Under that reapportionment, the Hasidic community was included within the 57th State Assembly District and the 17th State Senate District. As a result of the January 10, 1974, decision of the District of Columbia District Court, however, New York was required to obtain and on January 31, 1974, did seek approval of the Attorney General under Section 5 of the Voting Rights Act as to the 1972 redistricting in Bronx, Kings and New York Counties. This is because a legislative reapportionment is a change of 'standard, practice, or procedure with respect to voting' within § 5 of the Act, 42 U.S.C. § 1973c. Georgia v. United States, 411 U.S. 526, 93 S.Ct. 1702, 36 The State proceeded to draw new lines and to obtain such approval and it is those lines which are under attack here. The New York Joint Legislative Committee on Reapportionment met, under the gun so to speak, ⁶ to draw lines and prepare a series of laws which were enacted in special session on May 29 and 30, 1974. Laws of New York (1974) Chs. 588, 589, 590, 591 and 599. These lines were drawn, Richard S. Scolaro, the executive director of the Joint Committee on Reapportionment testified below, to comply with Justice Department criteria, ⁷ informally discussed over the telephone and in person, that there be three senate and two assembly districts with 'substantial nonwhite majorities.' Because the assembly district in which the entire Hasidic community was located under the 1972 apportionment had a nonwhite population of 61.5 per cent and the Justice Department indicated this was insufficient, Mr. Scolaro 'got the feeling,' although the number was not specifically referred to, that a 65 per cent nonwhite majority would be approved. Under the 1974 reapportionment plan devised and approved the Hasidic community was divided almost in half, placed in Assembly Districts 56 and 57 and Senate Districts 23 and 25. Assembly District 56 as redrawn contains On July 1, 1974, the Attorney General approved the 1974 districting here under attack in a 22-page letter covering the scope of his review; the public awareness and comment, in the absence of public hearings, of the reapportionment issue; the intent and purpose of the Voting Rights Act (said, along with the fifteenth amendment, 'to have been primarily to eliminate discrimination against Negroes' but also to protect 'Puerto Ricans in New York,' pp. 9-10); and consideration of the respective computations of voters by race in certain of the redrawn districts. That consideration, it may be pointed out, involved analysis that of Kings County as a whole 64.9 per cent of the population was white, 24.7 per cent black and 10.4 per cent Puerto Rican, and that the issues raised by the plaintiff-appellants here 'are not ones which the Attorney General has authority to determine under the provisions of Section 5 of the Voting Rights Act' (p. 19).

of the controversy must be set forth to crystallize the issues. L.Ed.2d 472 (1973). On April 1, 1974, the Assistant Attorney General in charge of the Civil Rights Division, J. Stanley Pottinger, advised the New York Attorney General's office that while the majority of the 1972 redistricting was unobjectionable 'we cannot conclude . . . that those portions (relating to certain districts in Kings and New York Counties) of these redistricting plans will not have the effect of abridging the right to vote on account of race or color' by virtue of overly concentrating minority populations in certain senate and assembly districts while 'diffusing' the remaining minority population adjoining those districts into a number of other districts. Thus, it is because New York had failed to comply with the Voting Rights Act in the first instance (by way of having a 'device' with fewer than 50 per cent voting) that it fell afoul of that Act and was in a position (for which it will remain for ten years under § 4(a), 42 U.S.C. § 1973b(a)) where its districting is subject to disapproval of the Attorney General if, for example, its proposed lines are drawn so as to deny or abridge the rights of minority citizens to vote. Even though the State defendants here disavow the determination of the Attorney General of April 1, ⁵ that determination was not appealed by the State of New York, its sole appellate remedy being by way of action in a three-judge District Court for the District of Columbia under § 5 of the Act, 42 U.S.C. § 1973c. Thus we can say unequivocally that the State of New York was in a position where it had to obtain Department of Justice approval of new district lines before it could hold a proper election under the Voting Rights Act 88.1 per cent nonwhite population, Assembly District 57 contains 65.0 per cent nonwhite population, Senate District 23 contains 71.1 per cent nonwhite population, Senate District 25 contains 34.7 per cent nonwhite population. Interim Report of the Joint Committee on Reapportionment, Albany, New York, May 27, 1974, at A29--A30. ⁸ This litigation ensued on June 11, 1974, and a TRO was denied below.

The court below denied plaintiffs' motions for a preliminary injunction and for summary judgment and dismissed the complaint below on July 25, 1974. Appeal was filed and this court heard a motion to expedite the appeal on the first motion day thereafter, August 13, 1974, granted the motion, heard the appeal on August 16, 1974, with extensive and skillful briefs, and a week later, per curiam, affirmed the district court's denial of a preliminary injunction. ⁹

CONTENTIONS OF THE PARTIES

Plaintiffs' complaint sought in addition to a general prayer (1) injunctive relief against the administration and implementation of the 1974 redistricting laws by the defendant Governor and other state officials and New York City Board of Elections ¹⁰ (the 'state appellees'); (2) a judgment against the Attorney General declaring that the standard under which he rejected the 1972 laws was unconstitutional; (3) declaratory and injunctive relief against the 1974 laws; and (4) injunctive relief against implementation of any redistricting other than that of 1972 or alternatively that established by the Judicial Commission appointed by the New York Court of Appeals. ¹¹ Plaintiffs as appellants here The State appellees argue that there is no constitutional prohibition against cutting across city, county or 'community' lines and, as Judge Bruchhausen held, that utilization of racial considerations is not unconstitutional when it is overcoming, as here, a racially discriminatory effect, the unlawful 1972 reapportionment. ¹³ The Attorney General argues that the court below is without jurisdiction to review his determination under Section 5 of the Voting Rights Act; that the appellants have no standing to seek that review; and that the constitution an...