United Jewish Organizations of Williamsburgh, Inc. v. Carey

430 U.S. 144, 97 S. Ct. 996, 51 L. Ed. 2d 229, 1977 U.S. LEXIS 51

• Court: Supreme Court of the United States
• Decided: March 1, 1977
• Docket: 75-104
• Status: Published

Opinions

Mr. Justice White

announced the judgment of the Court and filed an opinion in which Mr. Justice Stevens joined; Parts I, II, and III of which are joined by Mr. Justice Brennan and Mr. Justice Blackmun; and Parts I and IV of which joined by Mr. Justice Rehnquist.

Section 5 of the Voting Rights Act of 1965 prohibits a State or political subdivision subject to § 4 of the Act from implementing a legislative reapportionment unless it has obtained a declaratory judgment from the District Court for the District of Columbia, or a ruling from the Attorney General of the United States, that the reapportionment “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 . . . .” ¹ The question presented is whether, in the circumstances of this case, the use of racial criteria by the State of New York in its attempt to comply with § 5 of the Voting Rights Act and to secure the approval of the Attorney General violated the Fourteenth or Fifteenth Amendment.

I

Kings County, N. Y., together with New York (Manhattan) and Bronx Counties, became subject to §§ 4 and 5 of the Act, by virtue of a determination by the Attorney General that a literacy test was used in these three counties as of November 1, 1968, and a determination by the Director of the Census that fewer than 50% of the voting-age residents of these three counties voted in the Presidential election of 1968.² Litigation to secure exemption from the Act was unsuccessful,³ and it became necessary for New York to secure the approval of the Attorney General or of the United States District Court for the District of Columbia for its 1972 reapportionment statute insofar as that statute concerned Kings, New York, and Bronx Counties. On January 31, 1974, the provisions of the statute districting these counties for congressional, state senate, and state assembly seats were submitted to the Attorney General. In accordance with the regulations governing his § 5 review, the Attorney General considered submissions from interested parties criticizing and defending the plan.⁴ Those submissions included assertions that voting in these counties was racially polarized and that the district lines had been created with the purpose or effect of diluting the voting strength of nonwhites (blacks and Puerto Ricans).⁵ On April 1, 1974, the Attorney General concluded that, as to certain districts in Kings County covering the Bedford-Stuyvesant area of Brooklyn, the State had not met the burden placed on it by § 5 and the regulations thereunder to demonstrate that the redistricting had neither the purpose nor the effect of abridging the right to vote by reason of race on color.⁶

Under § 5, the State could have challenged the Attorney General’s objections to the redistricting plan by filing a declaratory judgment action in a three-judge court in the District of Columbia. Instead, the State sought to meet what it understood to be the Attorney General’s objections and to secure his approval in order that the 1974 primary and general elections could go forward under the 1972 statute.⁷ A revised plan, submitted to the Attorney General on May 31, 1974, in its essentials did not change the number of districts with nonwhite majorities, but did change the size of the non white majorities in most of those districts. Under the 1972 plan, Kings County had three state senate districts with nonwhite majorities of approximately 91%, 61%, and 53%; under the revised 1974 plan, there were again three districts with nonwhite majorities, but now all three were between 70% and 75% nonwhite.⁸ As for state assembly districts, both the 1972 and the 1974 plans provided for seven districts with nonwhite majorities. However, under the 1972 plan, there were four between 85% and 95% nonwhite, and three were approximately 76%, 61%, and 52%, respectively; under the 1974 plan, the two smallest nonwhite majorities were increased to 65% and 67.5%, and the two largest non white majorities were decreased from greater than 90% to between 80% and 90%.⁹ The report of the legislative committee on reapportionment stated that these changes were made “to overcome Justice Department objections” by creating more “substantial nonwhite majorities” in two assembly districts and two senate districts.¹⁰

One of the communities affected by these revisions in the Kings County reapportionment plan was the Williamsburgh area, where about 30,000 Hasidic Jews live. Under the 1972 plan, the Hasidic community was located entirely in one assembly district (61% nonwhite) and one senate district (37% nonwhite); in order to create substantial nonwhite majorities in these districts, the 1974 revisions split the Hasidic community between two senate and two assembly districts. A staff member of the legislative reapportionment committee testified that in the course of meetings and telephone conversations with Justice Department officials, he “got the feeling . . . that 65 percent would be probably an approved figure” for the nonwhite population in the assembly district in which the Hasidic community was located, a district approximately 61% nonwhite under the 1972 plan.¹¹ To attain the 65% figure, a portion of the white population, including part of the Hasidic community, was reassigned to an adjoining district.

Shortly after the State submitted this revised redistricting plan for Kings County to the Attorney General, petitioners sued on behalf of the Hasidic Jewish community of Williamsburgh, alleging that the 1974 plan “would dilute the value of each plaintiff’s franchise by halving its effectiveness,” solely for the purpose of achieving a racial quota and therefore in violation of the Fourteenth Amendment. Petitioners also alleged that they were assigned to electoral districts solely on the basis of race, and that this racial assignment diluted their voting power in violation of the Fifteenth Amendment. Petitioners sought an injunction restraining New York officials from enforcing the new redistricting plan and a declaratory judgment that the Attorney General of the United States had used unconstitutional and improper standards in objecting to the 1972 plan.

On June 20, 1974, the District Court held a hearing on petitioners’ motion for a preliminary injunction. On July 1, 1974, the Attorney General informed the State of New York that he did not object to the implementation of the revised plan. The Attorney General moved to be dismissed as a party on the ground that the relief sought against him could be obtained only in the District Court for the District of Columbia and only by a State or political subdivision subject to the Voting Rights Act; the State and the intervenor NAACP moved to dismiss the complaint on the ground that it failed to state a claim upon which relief could be granted. The District Court granted the motions to dismiss the complaint, reasoning that petitioners enjoyed no constitutional right in reapportionment to separate community recognition as Hasidic Jews, that the redistricting did not disenfranchise petitioners, and that racial considerations were permissible to correct past discrimination.¹² United Jewish Organizations v. Wilson, 377 F. Supp. 1164, 1165-1166 (EDNY 1974).

A divided Court of Appeals affirmed. 510 F. 2d 512 (CA2 1975). The majority first held that the Attorney General had to be dismissed as a party because the court had no jurisdiction to review his objection to the 1972 plan.¹³ After agreeing with the District Court that petitioners had no constitutional right to separate community recognition in reapportionment—a holding not challenged by petitioners here¹⁴—the Court of Appeals went on to address petitioners’ claims as white voters that the 1974 plan denied them equal protection of the laws and abridged their right to vote on the basis of race. The court noted that the 1974 plan left approximately 70% of the senate and assembly districts in Kings County with white majorities; given that only 65% of the population of the county was white, the 1974 plan would not underrepresent the white population, assuming that voting followed racial lines. Id., at 523, and n. 21. Petitioners thus could not claim that the plan canceled out the voting strength of whites as a racial group, under this Court’s decisions in White v. Regester, 412 U. S. 755 (1973), and Whitcomb v. Chavis, 403 U. S. 124 (1971). The court then observed that the case did not present the question whether a legislature, “starting afresh,” could draw lines on a racial basis so as to bolster nonwhite voting strength, but rather the “narrower” question whether a State could use racial considerations in drawing lines in an effort to secure the Attorney General’s approval under the Voting Rights Act. 510 F. 2d, at 524. The court thought this question answered by this Court’s decision in Allen v. State Board of Elections, 393 U. S. 544, 569 (1969), where a change from district to at-large voting for county supervisors was held to be covered by § 5 of the Act. The court below reasoned that the Act contemplated that the Attorney General and the state legislature would have “to think in racial terms”; because the Act “necessarily deals with race or color, corrective action under it must do the same.” 510 F. 2d, at 525. (Emphasis in original; footnote omitted.) The court held that

“so long as a districting, even though based on racial considerations, is in conformity with the unchallenged directive of and has the approval of the Attorney General of the United States under the Act, at least absent a clear showing that the resultant legislative reapportionment is unfairly prejudicial to white or nonwhite, that districting is not subject to challenge.” Ibid.15

We granted certiorari, 423 U. S. 945 (1975). We affirm.

II

Petitioners argue that the New York Legislature, although seeking to comply with the Voting Rights Act as construed by the Attorney General, has violated the Fourteenth and Fifteenth Amendments by deliberately revising its reapportionment plan along racial lines.¹⁶ In rejecting petitioners’ claims, we address four propositions: First, that whatever might be true in other contexts, the use of racial criteria in districting and apportionment is never permissible; second, that even if racial considerations may be used to redraw district lines in order to remedy the residual effects of past unconstitutional reapportionments, there are no findings here of prior discriminations that would require or justify as a remedy that white voters be reassigned in order to increase the size of black majorities in certain districts; third, that the use of a “racial quota” in redistricting is never acceptable; and fourth, that even if the foregoing general propositions are infirm, what New York actually did in this case was unconstitutional, particularly its use of a 65% nonwhite racial quota for certain districts. The first three arguments, as we now explain, are foreclosed by our cases construing and sustaining the constitutionality of the Voting Rights Act; the fourth we address in Parts III and IV.

It is apparent from the face of the Act, from its legislative history, and from our cases that the Act itself was broadly remedial in the sense that it was “designed by Congress to banish the blight of racial discrimination in voting . . . .” South Carolina v. Katzenbach, 383 U. S. 301, 308 (1966). It is also plain, however, that after “repeatedly try[ing] to cope with the problem by facilitating case-by-case litigation against voting discrimination,” id., at 313, Congress became dissatisfied with this approach, which required judicial findings of unconstitutional discrimination in specific situations and judicially approved remedies to cure that discrimination. Instead, Congress devised more stringent measures, one of which, § 5, required the covered States to seek the approval of either the Attorney General or of a three-judge court in the District of Columbia whenever they sought to implement new voting procedures. Under § 4, a State became subject to § 5 whenever it was administratively determined that certain conditions which experience had proved were indicative of racial discrimination in voting had existed in the area—in the case of New York, as already indicated, supra, at 148, that a literacy test was in use in certain counties in 1968 and that fewer than 50% of the voting-age residents in these counties voted in the Presidential election that year. At that point, New York could have escaped coverage by demonstrating to the appropriate court that the test had not been used to discriminate within the past 10 years, which New York was unable to do. See n. 3, supra.

Given this coverage of the counties involved, it is evident that the Act’s prohibition against instituting new voting procedures without the approval of the Attorney General or the three-judge District Court is not dependent upon proving past unconstitutional apportionments and that in operation the Act is aimed at preventing the use of new procedures until their capacity for discrimination has been examined by the Attorney General or by a court. Although recognizing that the “stringent new remedies,” including § 5, were “an uncommon exercise of congressional power,” we nevertheless sustained the Act as a “permissibly decisive” response to “the extraordinary stratagem of contriving new rules of various kinds for the sole purpose of perpetrating voting discrimination in the face of adverse federal court decrees.” South Carolina v. Katzenbach, supra, at 334-335 (footnote omitted).

It is also clear that under § 5, new or revised reapportionment plans are among those voting procedures, standards, or practices that may not be adopted by a covered State without the Attorney General’s or a three-judge court’s ruling that the plan “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.” In Allen v. State Board of Elections, on which the Court of Appeals relied below, we held that a change from district to at-large voting for county supervisors had to be submitted for federal approval under § 5, because of the potential for a “dilution” of minority voting power which could “nullify [its] ability to elect the candidate of [its] choice . . . .” 393 U. S., at 569. When it renewed the Voting Rights Act in 1970 and again in 1975, Congress was well aware of the application of § 5 to redistricting. In its 1970 extension, Congress relied on findings by the United States Commission on Civil Rights that the newly gained voting strength of minorities was in danger of being diluted by redistricting plans that divided minority communities among predominantly white districts.¹⁷ In 1975, Congress was unmistakably cognizant of this new phase in the effort to eliminate voting discrimination. Former Attorney General Katzenbach testified that § 5 “has had its broadest impact . . . in the areas of redistricting and reapportionment,” and the Senate and House reports recommending the extension of the Act referred specifically to the Attorney General’s role in screening redistricting plans to protect the opportunities for nonwhites to be elected to public office.¹⁸

As the Court of Appeals understood the Act and our decision in Allen, compliance with the Act in reapportionment cases would often necessitate the use of racial considerations in drawing district lines. That the Court of Appeals correctly read the Act has become clearer from later cases.

In Beer v. United States, 425 U. S. 130 (1976), the Court considered the question of what criteria a legislative reapportionment must satisfy under § 5 of the Voting Rights Act to demonstrate that it does not have the “effect” of denying or abridging the right to vote on account of race. Beer established that the Voting Rights Act does not permit the implementation of a reapportionment that “would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.” 425 U. S., at 141. This test was satisfied where the reapportionment increased the percentage of districts where members of racial minorities protected by the Act were in the majority. See ibid. But if this test were not met, clearance by the Attorney General or the District Court for the District of Columbia could not be given, and the reapportionment could not be implemented.

The reapportionment at issue in Beer was approved by this Court, because New Orleans had created one councilmanic district with a majority of black voters where none existed before. But had there been districts with black majorities under the previous law and had New Orleans in fact decreased the number of majority black districts, it would have had to modify its plan in order to implement its reapportionment by carving out a large enough black majority in however many additional districts would be necessary to satisfy the Beer test. There was division on the Court as to what a State must show to satisfy §5; but all eight Justices who participated in the decision implicitly accepted the proposition that a State may revise its reapportionment plan to comply with § 5 by increasing the percentage of black voters in a particular district until it has produced a clear majority. See 425 U. S., at 141-142; id., at 144 (White, J., dissenting) ; id., at 158-161 (Marshall, J., dissenting). Indeed, the plan eventually approved by this Court in Beer was drawn with the purpose of avoiding dilution of the black vote by attaining at least a 54% majority of black voters in one district while preventing a 90% concentration. See App. in Beer v. United States, O. T. 1975, No. 73-1869, pp. 341-342.

The Court has taken a similar approach in applying § 5 to the extension of city boundaries through annexation. Where the annexation has the effect of reducing the percentage of blacks in the city, the proscribed “effect” on voting rights can be avoided by a post-annexation districting plan which “fairly reflects the strength of the Negro community as it exists after the annexation” and which “would afford [it] representation reasonably equivalent to [its] political strength in the enlarged community.” City of Richmond v. United States, 422 U. S. 358, 370-371 (1975). Accord, City of Petersburg v. United States, 354 F. Supp. 1021 (DC 1972), summarily aff’d, 410 U. S. 962 (1973). In City of Richmond, the Court approved an annexation which reduced the proportion of blacks in the city from 52% to 42%, because the post-annexation ward system created four out of nine wards with substantial black majorities of 64%. Had the redistricting failed to “fairly [reflect] the strength of the Negro community,” however, it would follow from the Court’s decision that the Constitution would permit the city to modify its plan by deliberately creating black majorities in a sufficient number of wards to satisfy statutory requirements.

Implicit in Beer and City of Richmond, then, is the proposition that the Constitution does not prevent a State subject to the Voting Rights Act from deliberately creating or preserving black majorities in particular districts in order to ensure that its reapportionment plan complies with § 5. That proposition must be rejected and § 5 held unconstitutional to that extent if we are to accept petitioners’ view that racial criteria may never be used in redistricting or that they may be used, if at all, only as a specific remedy for past unconstitutional apportionments. We are unwilling to overturn our prior cases, however. Section 5 and its authorization for racial redistricting where appropriate to avoid abridging the right to vote on account of race or color are constitutional. Contrary to petitioners’ first argument, neither the Fourteenth nor the Fifteenth Amendment mandates any per se rule against using racial factors in districting and apportionment. Nor is petitioners’ second argument valid. The permissible use of racial criteria is not confined to eliminating the effects of past discriminatory districting or apportionment.¹⁹

Moreover, in the process of drawing black majority districts in order to comply with § 5, the State must decide how substantial those majorities must be in order to satisfy the Voting Rights Act. The figure used in drawing the Beer plan, for example, was 54% of registered voters.²⁰ At a minimum and by definition, a “black majority district” must be more than 50% black. But whatever the specific percentage, the State will inevitably arrive at it as a necessary means to ensure the opportunity for the election of a black representative and to obtain approval of its reapportionment plan. Unless we adopted an unconstitutional construction of § 5 in Beer and City of Richmond, a reapportionment cannot violate the Fourteenth or Fifteenth Amendment merely because a State uses specific numerical quotas in establishing a certain number of black majority districts. Our cases under § 5 stand for at least this much.

III

Having rejected these three broad objections to the use of racial criteria in redistricting under the Voting Rights Act, we turn to the fourth question, which is whether the racial criteria New York used in this case—the revision of the 1972 plan to create 65% nonwhite majorities in two additional senate and two additional assembly districts—were constitutionally infirm. We hold they are not, on two separate grounds. The first is addressed in this Part III, the second in Part IV.

The first ground is that petitioners have not shown, or offered to prove, that New York did more than the Attorney General was authorized to require it to do under the non-retrogression principle of Beer, a principle that, as we have already indicated, this Court has accepted as constitutionally valid. Under Beer, the acceptability of New York’s 1972 reapportionment for purposes of § 5 depends on the change in nonwhite voting strength in comparison with the previous apportionment, which occurred in 1966. Yet there is no evidence in the record to show whether the 1972 plan increased, or decreased the number of senate or assembly districts with substantial non white majorities of 65%. For all that petitioners have alleged or proved, the 1974 revisions may have accomplished nothing more than the restoration of nonwhite voting strength to 1966 levels.²¹ To be successful in their constitutional challenge to the racial criteria used in New York’s revised plan, petitioners must show at a minimum that minority voting strength was increased under the 1974 plan in comparison with the 1966 apportionment; otherwise the challenge amounts to a constitutional attack on compliance with the statutory rule of nonretrogression.

In the absence of any evidence regarding nonwhite voting strength under the 1966 apportionment, the creation of substantial nonwhite majorities in approximately 30% of the senate and assembly districts in Kings County was reasonably related to the constitutionally valid statutory mandate of maintaining nonwhite voting strength. The percentage of districts with nonwhite majorities was less than the percentage of nonwhites in the county as a whole (35%). The size of the nonwhite majorities in those districts reflected the need to take account of the substantial difference between the nonwhite percentage of the total population in a district and the nonwhite percentage of the voting-age population.²² Because, as the Court said in Beer, the inquiry under § 5 focuses ultimately on “the position of racial minorities with respect to their effective exercise of the electoral franchise,” 425 U. S., at 141, the percentage of eligible voters by district is of great importance to that inquiry.²³ In the redistricting plan approved in Beer, for example, only one of the two districts with a black population majority also had a black majority of registered voters. Id., at 142. We think it was reasonable for the Attorney General to conclude in this case that a substantial nonwhite population majority—in the vicinity of 65%— would be required to achieve a non white majority of eligible voters.

Petitioners have not shown that New York did more than accede to a position taken by the Attorney General that was authorized by our constitutionally permissible construction of § 5. New York adopted the 1974 plan because it sought to comply with the Voting Rights Act. This has been its primary defense of the plan, which was sustained on that basis by the Court of Appeals. Because the Court of Appeals was essentially correct, its judgment may be affirmed without addressing the additional argument by New York and by the United States that, wholly aside from New York's obligation under the Voting Rights Act to preserve minority voting strength in Kings County, the Constitution permits it to draw district lines deliberately in such a way that the percentage of districts with a non white majority roughly approximates the percentage of nonwhites in the county.

IV

This additional argument, however, affords a second, and independent, ground for sustaining the particulars of the 1974 plan for Kings County. Whether or not the plan was authorized by or was in compliance with § 5 of the Voting Rights Act, New York was free to do what it did as long as it did not violate the Constitution, particularly the Fourteenth and Fifteenth Amendments; and we are convinced that neither Amendment was infringed.

There is no doubt that in preparing the 1974 legislation, the State deliberately used race in a purposeful manner. But its plan represented no racial slur or stigma with respect to whites or any other race, and we discern no discrimination violative of the Fourteenth Amendment nor any abridgment of the right to vote on account of race within the meaning of the Fifteenth Amendment.

It is true that New York deliberately increased the nonwhite majorities in certain districts in order to enhance the opportunity for election of nonwhite representatives from those districts. Nevertheless, there was no fencing out of the white population from participation in the political processes of the county, and the plan did not minimize or unfairly cancel out white voting strength. Compare White v. Regester, 412 U. S., at 765-767, and Gomillion v. Lightfoot, 364 U. S. 339 (1960), with Gaffney v. Cummings, 412 U. S. 735, 751-754 (1973). Petitioners have not objected to the impact of the 1974 plan on the representation of white voters in the county or in the State as a whole. As the Court of Appeals observed, the plan left white majorities in approximately 70% of the assembly and senate districts in Kings County, which had a countywide population that was 65% white. Thus, even if voting in the county occurred strictly according to race, whites would not be underrepresented relative to their share of the population.

In individual districts where nonwhite majorities were increased to approximately 65%, it became more likely, given racial bloc voting, that black candidates would be elected instead of their white opponents, and it became less likely that white voters would be represented by a member of their own race; but as long as whites in Kings County, as a group, were provided with fair representation, we cannot conclude that there was a cognizable discrimination against whites or an abridgment of their right to vote on the grounds of race.²⁴ Furthermore, the individual voter in the district with a non white majority has no constitutional complaint merely because his candidate has lost out at the polls and his district is represented by a person for whom he did not vote. Some candidate, along with his supporters, always loses. See Whitcomb v. Chavis, 403 U. S., at 153-160.

Where it occurs, voting for or against a candidate because of his race is an unfortunate practice. But it is not rare; and in any district where it regularly happens, it is unlikely that any candidate will be elected who is a member of the race that is in the minority in that district. However disagreeable this result may be, there is no authority for the proposition that the candidates who are found racially unacceptable by the majority, and the minority voters supporting those candidates, have had their Fourteenth or Fifteenth Amendment rights infringed by this process. Their position is similar to that of the Democratic or Republican minority that is submerged year after year by the adherents to the majority party who tend to vote a straight party line.

It does not follow, however, that the State is powerless to minimize the consequences of racial discrimination by voters when it is regularly practiced at the polls. In Gaffney v. Cummings, the Court upheld a districting plan “drawn with the conscious intent to . . . achieve a rough approximation of the statewide political strengths of the Democratic and Republican Parties.” 412 U. S., at 752. We there recognized that districting plans would be vulnerable under our cases if “racial or political groups have been fenced out of the political process and their voting strength invidiously minimized,” id., at 754 (emphasis added); but that was not the case there, and no such purpose or effect may be ascribed to New York’s 1974 plan. Rather, that plan can be viewed as seeking to alleviate the consequences of racial voting at the polls and to achieve a fair allocation of political power between white and nonwhite voters in Kings County.

In this respect New York’s revision of certain district lines is little different in kind from the decision by a State in which a racial minority is unable to elect representatives from multimember districts to change to single-member districting for the purpose of increasing minority representation. This change might substantially increase minority representation at the expense of white voters, who previously elected all of the legislators but who with single-member districts could elect no more than their proportional share. If this intentional reduction of white voting power would be constitutionally permissible, as we think it would be, we think it also permissible for a State, employing sound districting principles such as compactness and population equality, to attempt to prevent racial minorities from being repeatedly outvoted by creating districts that will afford fair representation to the members of those racial groups who are sufficiently numerous and whose residential patterns afford the opportunity of creating districts in which they will be in the majority.

As the Court said in Gaffney:

“[C]ourts have [no] constitutional warrant to invalidate a state plan, otherwise within tolerable population limits, because it undertakes, not to minimize or eliminate the political strength of any group or party, but to recognize it and, through districting, provide a rough sort of proportional representation in the legislative halls of the State.” Ibid.

New York was well within this rule when, under the circumstances present in Kings County, it amended its 1972 plan.²⁵

The judgment is

Affirmed.

Mr. Justice Marshall took no part in the consideration or decision of this case.

1 Section 5 of the Voting Rights Act of 1965, 79 Stat. 439, as amended, 42 U. S. C. § 1973c, at the time in question here, provided in pertinent part:

“[W]henever a State or political subdivision with respect to which the prohibitions set forth in section 1973b (a) of this title based upon determinations made under the second sentence of section 1973b (b) of this title are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1968, such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure 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, and unless and until the court enters such judgment no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced without such proceeding if the qualification, prerequisite, standard, practice, or procedure has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, except that neither the Attorney General’s failure to object nor a declaratory judgment entered under this section shall bar a subsequent action to enjoin enforcement of such qualification, prerequisite, standard, practice, or procedure. Any action under this section shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of Title 28 and any appeal shall lie to the Supreme Court.”

A legislative reapportionment is a “standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1968,” within the meaning of § 5. See infra, at 157-159.

2 See 42 U. S. C. § 1973b (b).

3 The State of New York brought an action to obtain a statutory exemption for the three counties under § 4 (a) of the Act, seeking a declaratory judgment that its literacy test had not been used within the 10 years preceding the filing of the suit “for the purpose or with the effect of denying or abridging the right to vote on account of race or color.” 42 U. S. C. § 1973b (a). After several years of litigation, the District Court for the District of Columbia denied the exemption and ordered the State to comply with the filing requirements of § 5. This Court summarily affirmed. New York ex rel. New York County v. United States, 419 U. S. 888 (1974). See 510 F. 2d 512, 516 (CA2 1975).

4 Title 28 CFR § 51.19 (1976) provides:

“Section 5, in providing for submission to the Attorney General as an alternative to seeking a declaratory judgment from the U. S. District Court for the District of Columbia, imposes on the Attorney General what is essentially a judicial function. Therefore, the burden of proof on the submitting authority is the same in submitting changes to the Attorney General as it would be in submitting changes to the District Court for the District of Columbia. The Attorney General shall base his decision on a review of material presented by the submitting authority, relevant information provided by individuals or groups, and the results of any investigation conducted by the Department of Justice. If the Attorney General is satisfied that the submitted change does not have a racially discriminatory purpose or effect, he will not object to the change and will so notify the submitting authority. If the Attorney General determines that the submitted change has a racially discriminatory purpose or effect, he will enter an objection and will so notify the submitting authority. If the evidence as to the purpose or effect of the change is conflicting, and the Attorney General is unable to resolve the conflict within the 60-day period, he shall, consistent with the above-described burden of proof applicable in the District Court, enter an objection and so notify the submitting authority.”

5 The record, in this Court contains only part of the materials submitted to and considered by the Attorney General in his review of the 1972 plan. Included in the present record, are a memorandum submitted on behalf of the National Association for the Advancement of Colored People and letters from several prominent black and Puerto Rican elected officials, all opposing the plan. Not included in the record are materials defending the plan submitted by the reapportionment committee of the New York Legislature, the State Attorney General, and several state legislators. Brief for United States 8, and n. 9.

The NAACP, the Attorney General, and the court below classified Puerto Ricans in New York together with blacks as a minority group entitled to the protections of the Voting Rights Act. Hereinafter we use the term “nonwhite” to refer to blacks and Puerto Ricans, although small numbers of other nonwhite groups (such as Orientals) are also included in the nonwhite population statistics.

6 The basis for the Attorney General’s conclusion that “the proscribed effect may exist” as to certain state assembly and senate districts in Kings County was explained in a letter to the New York State authorities as follows:

“Senate district 18 appears to have an abnormally high minority concentration while adjoining minority neighborhoods are significantly diffused into surrounding districts. In the less populous proposed assembly districts, the minority population appears to be concentrated into districts 53, 54, 55 and 56, while minority neighborhoods adjoining those districts are diffused into a number of other districts. [W]e know of no necessity for such configuration and believe other rational alternatives exist.” App. 15.

The Attorney General also objected to the congressional districting in Kings County and to the state legislative districting in New York County. The districting for these seats is not at issue in this litigation.

7 The State was also under pressure from a private suit to compel enactment of new district lines consistent with the views of the Attorney General. NAACP v. New York City Bd. of Elections, 72 Civ. 1460 (SDNY). See 510 F. 2d, at 517 n. 6.

8 The 1972 percentages are taken from Table 3, accompanying the memorandum in support of the motions to dismiss of the applicants for intervention, App. 265, except for the 61% figure, which is for a district only partially in Kings County. That figure is taken from the Brief for United States 53, and represents the black and Puerto Rican population rather than all nonwhites. The 1974 percentages are taken from the Interim Report of the Joint Committee on Reapportionment, App. 179-180.

The 1974 plan created nonwhite majorities in two state senate districts that were majority white under the 1972 plan (the 17th and the 23d), but created white majorities in two districts that were majority nonwhite under the 1972 plan (the 16th and the 25th). See Brief for United States 53.

9 Table 3, supra, n. 8, App. 266; Interim Report, supra, n. 8, App. 195; Brief for United States 54. See 510 F. 2d, at 523 n. 21.

10 Interim Report, supra, n. 8, App. 179; see id., at 181-182.

11 Testimony of Richard S. Scolaro, executive director of the Joint Committee on Reapportionment, at hearing on plaintiff’s motion for preliminary injunction, App. 106; see 510 F. 2d, at 517.

12 Petitioners’ motions for a preliminary injunction and summary judgment were denied.

13 Although petitioners did not present this question for review, they, argue that the Attorney General is properly a party to this suit because he allegedly caused the state officials to deprive petitioners of their constitutional rights. Brief for Petitioners 53-54, n. 22; Reply Brief for Petitioners 5 n. 1 (filed Sept. 30, 1976). In view of our disposition of the case, we do not reach this issue.

14 In this Court, petitioners state: “[We do not] contend that there is any right—constitutional or statutory—for permanent recognition of a community in legislative apportionment. Our argument is, rather, that the history of the area demonstrates that there could be—and in fact was—no reason other than race to divide the community at this time.” Brief for Petitioners 6 n. 6. (Emphasis in original.)

15 The dissent would have found a constitutional violation in “the drawing of district lines with a central and governing premise that a set number of districts must have a predetermined nonwhite majority of 65% or more in order to ensure nonwhite control in those districts.” The dissent pointed out that neither the Attorney General nor the State of New York would take responsibility for the 65% “quota,” and argued that there was no showing of a pre-existing wrong which could justify the use of a “presumptively odious” racial classification. 510 F. 2d, at 525, 526 (Frankel, J.).

16 The Equal Protection Clause, contained in § 1 of the Fourteenth Amendment, forbids any State to “deny to any person within its jurisdiction the equal protection of the laws.” Section 1 of the Fifteenth Amendment provides that “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”

17 The findings of the Commission’s 18-month study, contained in its 1968 report, Political Participation 21-39, were endorsed in a statement submitted in the course of the Senate debates by 10 out of 17 Senate Judiciary Committee members, who proposed and successfully supported the critical amendment that extended § 5. The findings were repeatedly referred to during the Senate and House hearings held in 1969 and 1970 in connection with the extension. E. g., Hearings on H. R. 4249, H. R. 5538, and Similar Proposals (Voting Rights Act Extension) before Subcommittee No. 5 of the House Committee on the Judiciary, 91st Cong., 1st Sess., 3-4 (1969) (statement of Rep. McCulloch); id., at 17 (testimony of Howard Glickstein, Acting Staff Director, United States Commission on Civil Rights); id., at 150 (testimony of Thomas E. Harris, Associate General Counsel, AFL-CIO); Hearings on S. 818, S. 2456, S. 2507, and Title IV of S. 2029 (Amendments to the Voting Rights Act of 1965) before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 91st Cong., 1st and 2d Sess., 47 (1970) (testimony of Frankie Freeman, member, United States Commission on Civil Rights); id., at 132 (testimony of Joseph L. Rauh, Jr., General Counsel, Leadership Conference on Civil Rights); id., at 427 (statement of Howard Glickstein); id., at 516-518 (testimony of David Norman, Deputy Assistant Attorney General, Civil Rights Division, U. S. Dept. of Justice).

18 Hearings on S. 407, S. 903, S. 1297, S. 1409, and S. 1443 before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 94th Cong., 1st Sess., 124 (1975) (testimony of Nicholas Katzenbach); S. Rep. No. 94-295, pp. 15-19 (1975); H. R. Rep. No. 94-196, pp. 8-11 (1975).

19 Petitioners also insist that, because the Attorney General concluded not that the 1972 plan would have a discriminatory effect but only that the State had failed to demonstrate that the plan would not have such an effect, there was insufficient justification for racial redistricting. This argument overlooks the central role of the shift in burden of proof in the congressional effort to combat discriminatory voting laws. Our cases have upheld this shift. As we said in South Carolina v. Katzenbach, 383 U. S. 301, 328 (1966): “After enduring nearly a century of systematic resistance to the Fifteenth Amendment, Congress might well decide to shift the advantage of time and inertia from the perpetrators of the evil to its victims.” And in affirming the issuance of an injunction against enforcement of a state reapportionment plan for which the State had not demonstrated the absence of a discriminatory effect, the Court stated:

“It is well established that in a declaratory judgment action under § 5, the plaintiff State has the burden of proof. What the Attorney General's regulations do is to place the same burden on the submitting party in a § 5 objection procedure. . . . Any less stringent standard might well have rendered the formal declaratory judgment procedure a dead letter by making available to covered States a far smoother path to clearance.” Georgia v. United States, 411 U. S. 526, 538 (1973). (Footnote omitted.)

20 See supra, at 160.

21 It is true, of course, that Beer was decided after petitioners moved for summary judgment in the District Court and after the Court of Appeals affirmed the District Court’s denial of that motion and dismissal of the action. But while relying on Beer in this Court, petitioners take the position that there are no disputed issues of fact and that their motion for summary judgment should be granted on the basis of the present record. Reply Brief for Petitioners 13-14, 17 (filed Sept. 30, 1976); Tr. of Oral Arg. 70-71.

22 The NAACP, intervenor in this action, submitted census data to the Attorney General showing that roughly 75% of all whites in Kings County but only about 55% of all nonwhites were eligible to vote. App. 263. The NAACP urged that districts without significant nonwhite population majorities would not have nonwhite majorities among eligible voters. See, e. g., id., at 219.

The statistical problems in estimating the nonwhite population of the districts in the 1972 plan provided an additional reason for the Attorney General to ask for an increase in the size of the nonwhite majorities in certain districts. The legislature used the higher of the two sets of estimates, and the actual nonwhite population may have been somewhat lower. See id., at 265.

23 The regulation governing submissions to the Attorney General for review of redistricting plans under § 5 “strongly urges” the submitting authority to include “[v]oting-age population and the number of registered voters before and after the change, by race, for the area to be affected by the change.” 28 CFR §51.10 (b)(6)(ii) (1976).

24 We also note that the white voter who as a result of the 1974 plan is in a district more likely to return a nonwhite representative will be represented, to the extent that voting continues to follow racial lines, by legislators elected from majority white districts. The effect of the reapportionment on whites in districts where nonwhite majorities have been increased is thus mitigated by the preservation of white majority districts in the rest of the county. See Note, 25 Stan. L. Rev. 84, 87 (1972). Of course, if voting does not follow racial lines, the white voter has little reason to complain that the percentage of nonwhites in his district has been increased.

25 Petitioners seek to distinguish Gaffney on the ground that New York’s use of racial criteria was not the product of “reasoned choice” by the state legislature but rather was coerced by federal officials. But we do not think that this otherwise constitutionally permissible plan was rendered unconstitutional merely because New York adopted it to comply with a federal statute.