Appeal from orders entered in the United States District Court for the Eastern District of New York, Walter Bruchhausen, Judge, denying a preliminary injunction and dismissing a complaint which alleged that impermissible racial criteria, violating the fourteenth and fifteenth amendments, were used in the drawing of certain New York State Senate and Assembly districts.
Oakes, Circuit Judge, Frankel dissenting and Kelleher, District Judge.*fn*
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"*fn1 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 Williamsburgh 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.*fn2 A history of the controversy must be set forth to crystallize the issues.
We commence with July 31, 1970, when the Attorney General of the United States filed with the Federal Register his determination that New York on November 1, 1968, maintained a test or device (a literacy test) as defined in Section 4(c) of the Voting Rights Act as amended, 42 U.S.C. § 1973b. 35 Fed. Reg. 12354. Then on March 27, 1971, the United States Bureau of the Census also determined that Bronx, Kings and New York Counties were subject to Sections 4 and 5 of the Voting Rights Act, 42 U.S.C. §§ 1973b*fn3 and 1973c,*fn4 since a literacy test was used in those counties prior to 1970 and less than 50 per cent of the voting age residents voted in the presidential election of 1968. 36 Fed. Reg. 5809 (1971). The State of New York filed a complaint on December 3, 1971, in the United States District Court for the District of Columbia for a declaratory judgment exempting the three affected counties under § 4(a) of the Act, 42 U.S.C. § 1973b(a). This judgment was granted with Justice Department consent on April 13, 1972. New York State v. United States, Civil No. 2419-71 (D.D.C.) (unreported). The NAACP unsuccessfully appealed to the United States Supreme Court the denial of its leave to intervene in the District of Columbia case, NAACP v. New York, 413 U.S. 345, 37 L. Ed. 2d 648, 93 S. Ct. 2591 (1973), but on remand its motion was granted. After District Judge Stewart's decision granting a preliminary injunction in Torres v. Sachs, 381 F. Supp. 309 (S.D.N.Y. 1974) (failure to provide Spanish translation of ballot contravened Voting Rights Act), the intervenor NAACP successfully reopened the declaratory judgment action and obtained two orders from the District of Columbia District Court, one on January 10, 1974, directing the State on behalf of the three counties to comply with the filing requirements of § 5 of the Act, 42 U.S.C. § 1973c, and the second on April 30, 1974, granting the NAACP's motion for summary judgment. Those orders were summarily affirmed the other day by the United States Supreme Court. New York v. United States, 419 U.S. 888, 95 S. Ct. 166, 42 L. Ed. 2d 134, 43 U.S.L.W. 3238 (1974).
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, 36 L. Ed. 2d 472, 93 S. Ct. 1702 (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,*fn5 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.
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,*fn6 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,*fn7 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 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.*fn8 This litigation ensued on June 11, 1974, and a TRO was denied below.
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).
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.*fn9
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*fn10 (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.*fn11 Plaintiffs as appellants here essentially argue that because the 1974 redistricting was done under a formula drawn on a racial basis, they have been divided between districts so that their voting power is minimized and diluted, and that inherently suspect racial criteria have been used to create invidious restrictions against them both as members of the Hasidic community and as white voters. Particular attack is directed toward what appellants characterize as the Department of Justice's "approach" that "the best way to achieve equality for minorities . . . is to elect more black, Puerto Rican, Indian or Chicano executives and legislators" (Appellants' brief at 22), and that the only way to reach this goal is to maximize, but not waste, minority populations in each electoral district so that a comfortable majority will offset the lower percentage of nonwhites actually voting. The three principal flaws in the Department's "approach" are said to be (1) the assumption that race is the principal determination of choice by voters; (2) the notion that a high percentage of blacks in a district constitutes "undue concentration" and a lower percentage amounts to "substantial diffusion," because by virtue of the nature of a regional election-district system, districts will vary depending on residential patterns; and (3) the assumption that only black or minority-race legislators can represent black or minority-race interests.*fn12
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.*fn13 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 and Voting Rights Act do not guarantee individuals who represent a religious or ethnic community districts which maintain community unity. Finally, the NAACP argues, first, that appellants lack standing under the Voting Rights Act and because there is no connection between the alleged injury to appellants and the alleged defects in the 1974 lines, and, second, that the 1974 reapportionment laws are constitutional.
A. Section 5 of the Voting Rights Act Is Not a Bar Except as to Relief Against the Attorney General.
We deal first with the question whether, as the Attorney General and NAACP contend, Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c, bars this suit. We hold that it does not.
Section 5 specifically states that "neither the Attorney General's failure to object [to e.g., a reapportionment plan] nor a declaratory judgment [of the District Court for the District of Columbia] entered under this section shall bar a subsequent action to enjoin enforcement of" statutes such as are here under attack. Note 4 supra. Even though a state is in compliance with the Act (either by Attorney General approval or district court declaratory judgment), "private parties may enjoin the enforcement of the new enactment only in traditional suits attacking its constitutionality; there is no further remedy provided by § 5." Allen v. State Board of Elections, 393 U.S. 544, 549-50, 22 L. Ed. 2d 1, 89 S. Ct. 817 (1969). This is a "traditional suit" even if it raises novel contentions. Jurisdiction lies under 28 U.S.C. §§ 1331, 1343 and 1357 to vindicate claims under the fourteenth and fifteenth amendments. The Voting Rights Act in no way appears to outlaw a citizen's suit to enjoin a districting statute, such as was involved in, e.g., Wright v. Rockefeller, 376 U.S. 52, 11 L. Ed. 2d 512, 84 S. Ct. 603 (1964), Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962), Gomillion v. Lightfoot, 364 U.S. 339, 5 L. Ed. 2d 110, 81 S. Ct. 125 (1960), whether or not the state of which he is a citizen is under the hopefully benign aegis of the Voting Rights Act.*fn14
The court below does not, however, have jurisdiction to "review" the Attorney General's determination of April 1, 1974, disapproving the 1972 Act, that jurisdiction being vested exclusively in the District Court for the District of Columbia, in a suit apparently only at the instance of the State or a political subdivision,*fn15 Allen v. State Board of Elections, 393 U.S. at 555, 561. In such a suit the appellants might have had the option of intervening by timely motion at the discretion of the district court. See NAACP v. New York, 413 U.S. at 364-69. Since no such suit was filed, to the extent that the appellants seek such review, to which their second specific prayer for relief (as well as some of the language of their otherwise most ingenious brief) was addressed, the court below had no power to give it. Since that is the only relief sought against the Attorney General, dismissal of the complaint against him was warranted.*fn16 The rest of the case must be treated as involving only relief sought against the State appellees.
B. Standing to Sue State Officials.
A more difficult question is whether appellants have standing either as representing the Hasidic community or as white voters to seek relief against the State appellees. We hold that they do not as Hasidim but do as white voters.
As representatives of the Hasidic community, appellants present a very appealing case. They properly point with pride to their closely knit community as consisting of a "substantially self-sustaining and totally law-abiding" group, which came to the Williamsburgh area as survivors of the Nazi Holocaust, lives scrupulously observant of distinctive religious practices, and -- despite their initial skepticism of democracy -- participates actively in civic affairs including the electoral process. As a result of the 1974 laws that community, which had been in one state senate and one state assembly district, has been divided in two and its strength as a voting bloc diluted accordingly. But similar claims for community recognition have been rejected in the past. As was said by a three-judge court in respect to divisions of certain Brooklyn communities in Wells v. Rockefeller, 281 F. Supp. 821, 825 (S.D.N.Y. 1968), rev'd on other grounds, 394 U.S. 542, 22 L. Ed. 2d 535, 89 S. Ct. 1234 (1969):
The Legislature cannot be expected to satisfy, by its redistricting action, the personal political ambitions or the district preferences of all our citizens. For everyone on the wrong side of the line, there may well be his counterpart on the right side. . . . Even Brooklyn's large population will not support twenty community congressmen. Of necessity, there must be lines which divide.
See also Ince v. Rockefeller, 290 F. Supp. 878 (S.D.N.Y. 1968) (claim of black residents of East Elmhurst, Queens County, that their community was divided between two assembly districts with racial motivation, dismissed by single judge). There can be no claim to being left together in one district at least absent a showing of discrimination on grounds of race or color against the residents of the "community" operating so as to deprive them of the right to vote, e.g., in municipal elections, Gomillion v. Lightfoot, supra (state gerrymandering removed 395 or 396 out of 400 Negro voters from City of Tuskeegee boundaries) or, perhaps, operating so as purposefully to diminish the effectiveness of their vote through various districting plans. See Douglas, J., dissenting in Wright v. Rockefeller, 376 U.S. at 61; Klahr v. Williams, 339 F. Supp. 922, 927 (D. Ariz. 1972) (three-judge court). There are from 20 to 60 clearly-defined communities in Kings County, but only 8.6 senate districts and 21.4 assembly districts. To preserve community political integrity and comply with Reynolds v. Sims, 377 U.S. 533, 12 L. Ed. 2d 506, 84 S. Ct. 1362 (1964), would therefore be impossible.*fn17
Here, more to the point, the appellants do not claim that the purpose of the 1974 districting was to dilute or abridge the Hasidic vote. Rather their complaint is that the purpose was to ensure nonwhite majority representation in the districts in question. Their argument that this purpose was unconstitutional is unchanged whether the Hasidim were included in one district or two. While it is true that the appellants may be quarrelling with the Attorney General's apparent viewpoint that the Voting Rights Act does not empower him to consider ethnic as opposed to color discriminations in a submission under the Act, a view which we do not necessarily share, it is a far cry from this to say that a state must in a reapportionment draw lines so as to preserve ethnic community unity. Any holding otherwise would, it seems to us, make reapportionment an impossible task for any legislature. Whether our decision on this point is cast on the merits or as a matter of standing is probably immaterial. See also Wood v. Broom, 287 U.S. 1, 77 L. Ed. 131, 53 S. Ct. 1 (1932).
We turn then to whether appellants have standing to assert their claims as white voters that racial considerations cannot be used in drawing district lines in any manner, a claim which is grounded both upon the equal protection clause, i.e., that white voters are denied equal protection, and the fifteenth amendment, i.e., that white voters' rights are abridged on account of race or color. There is no reason, as we see it, that a white voter may not have standing, just as a nonwhite voter, to allege a denial of equal protection as well as an abridgement of his right to vote on account of race or color, see 1 B. Schwartz, Statutory History of the United States: Civil Rights (1970) 181-333, 367-428, regardless of the fact that the fourteenth and fifteenth amendments were adopted for the purpose of ensuring equal protection to the black person. While we generally tend to think of white voters as being in the majority because in the country as a whole and in most states they are, it is plain enough that in a given state or political subdivision they may not be; to the extent that the fourteenth and fifteenth amendments can be construed as extending the rights of minority groups, in a given situation that group may of course be white. Thus, previous cases affording standing to black voters making claims of denial of equal protection or denial or abridgement of vote are equally applicable here. Cf. Gomillion v. Lightfoot, supra (deciding claim on merits); Wright v. Rockefeller, supra (same). See also Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 34 L. Ed. 2d 415, 93 S. Ct. 364 (1972).
The intervenor-appellee NAACP argues that appellants lack standing because there is no connection between their alleged injury, defined by the intervenor as community dispersal, and the alleged constitutional defect in the 1974 districting, that is, consideration of a 65 percent nonwhite racial criteria.*fn18 The argument is that it would have been, and there was some evidence that it was, possible to put the entire Hasidic community into one assembly district (the 56th) and one senate district (the 25th) and still comply with the supposed 65 per cent requirement. But we read appellants' claim to be broader than simply a claim for community unity. We read them as urging that as white voters their vote has been abridged on account of race or color;*fn19 it is the community division which may have induced the litigation but it is the allegation of race or rather color consciousness in the districting that is appellants' plaint. We believe there is here a logical nexus between the status asserted by appellants qua white voters and this claim. See Flast v. Cohen, 392 U.S. 83, 102, 20 L. Ed. 2d 947, 88 S. Ct. 1942 (1968). Thus we hold they have standing to assert this claim.
C. The Merits of the Controversy.
The appellants' claim is one that has not only intellectual appeal on the surface but also some support in the language -- we do not say rhetoric -- of cases which have been brought by nonwhite minority groups. E.g., Douglas, J., dissenting and concurring in Wright v. Rockefeller, 376 U.S. at 59, 66-67. See also Judge Feinberg's concurrence in the three-judge district court in Wright v. Rockefeller, 211 F. Supp. 460, 468 (S.D.N.Y. 1962), affirmed by the Supreme Court, supra. The loss of a vote need not be shown, it is argued; the constitutional vice is constituting lines on a racial (or color) basis. We are referred on the one hand by the appellants to the long line of equal protection cases to the effect that race is always and everywhere a "constitutionally suspect classification," e.g., McLaughlin v. Florida, 379 U.S. 184, 192, 13 L. Ed. 2d 222, 85 S. Ct. 283 (1964), and on the other hand by appellees and the intervenor to the almost equally long line of cases permitting racial considerations to be used affirmatively to offset past discrimination or as the district court here put it, 377 F. Supp. 1164, 1166, to "correct a wrong" -- in education, Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 28 L. Ed. 2d 554, 91 S. Ct. 1267 (1971); in housing, Otero v. New York City Housing Authority, 484 F.2d 1122, 1132-34 (2d Cir. 1973); in grand jury selection, Brooks v. Beto, 366 F.2d 1 (5th Cir. 1966), cert. denied, 386 U.S. 975, 18 L. Ed. 2d 135, 87 S. Ct. 1169 (1967); and in employment, Associated General Contractors v. Altshuler, 490 F.2d 9, 16-19 (1st Cir. 1973), cert. denied, 416 U.S. 957, 94 S. Ct. 1971, 40 L. Ed. 2d 307 (1974). However tempting it might be in the abstract to determine whether gerrymandering with race or color in mind may be affirmatively used to offset previous race or color discrimination, that question, analogous perhaps to the question that was argued if not decided in DeFunis v. Odegaard, 416 U.S. 312, 94 S. Ct. 1704, 40 L. Ed. 2d 164, 42 U.S.L.W. 4578 (1974), we do not think is reached here.
In the first place, there is no showing here that the effect of the New York legislature's drawing the 1974 district lines as it did was invidiously to cancel out or minimize the voting strength of white voters in Kings County. Even considering that the assembly and senate districts here in question would now necessarily elect nonwhite assemblymen and senators, an assumption we by no means may make,*fn20 there would be no disproportionately nonwhite representation in either house.*fn21 Even if there were, that would apparently be insufficient to sustain appellants' claim under the stiffer test of White v. Regester, 412 U.S. 755, 37 L. Ed. 2d 314, 93 S. Ct. 2332 (1973) ...