National Association for the Advancement of Colored People v. New York – Oral Argument – February 27, 1973

Media for National Association for the Advancement of Colored People v. New York

Audio Transcription for Oral Argument – February 28, 1973 in National Association for the Advancement of Colored People v. New York

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Warren E. Burger:

We’ll hear arguments next in 72-129, NAACP against New York and others.

Mr. Greenberg.

Jack Greenberg:

Mr. Chief Justice and may it please the Court.

This case is here on appeal from the United States District Court for the District of Columbia which entered a judgment for the State of New York against the United States to which the United States consented and the judgment did two things.

First, it exempted the State of New York from certain requirements of the Voting Rights Act of 1970, which I shall describe in more detail shortly.

Briefly, the requirements from which the state was exempted were of two sorts.

One, it was exempted from the necessity of pre-clearance of voting Law changes as required by Section 5 of the Voting Rights Act and secondly, it was allowed to restore its literacy tests earlier than otherwise would have been permitted under the Voting Rights Act of 1970.

The judgment below also denied intervention to the appellants here when they attempted to enter the litigation to urge upon the Court that New York should remain subject to the provisions of the Voting Rights Act.

In January and March 1970, New York redistricted its assembly, state senate and congressional districts.

Appellants who are black and Puerto Rican citizens of New York City and the National Association for the Advancement of Colored People view the 1970 redistricting changes as an illegal racial gerrymander.

They claim that the redistricting took most of the black and Puerto Rican population in Brooklyn for one thing and carved it up to distribute it in little pieces among contiguous white districts making the black population smaller parts of the larger white population in the white districts as part of a racial gerrymander which would dilute, what otherwise would be considerable political strength held together by a bond of common factors related to race.

I want to make clear that the validity of those charges of racial gerrymander are not before the Court in this case, but the question of whether appellants can have a day in Court, so to speak, to establish the validity of those claims, now what sort of a day that would be is of the essence of this appeal.

The day in Court which appellants sought were the days in Court or before a forum, proper forum which they sought were of three different kinds, all interrelated and again only one of which is here today.

The adverse judgment in the District of Columbia disallowing intervention washed out all possibility of the other two.

The first forum would have been before the Attorney General of the United States under Section 5 of the Voting Rights Act.

When we learned that these voting changes were in process and their implementation were in process —

William J. Brennan, Jr.:

The time, Mr. Greenberg, last week I think it was, we had a case argued here Georgia versus United States and there was a question of whether Section 5 reached the reapportionments?

Jack Greenberg:

Yes.

William J. Brennan, Jr.:

Is that involved here?

Jack Greenberg:

Yes that is involved here and so far as that is the concerned, the Government takes the same position as we do, but more than that is involved, Mr. Justice Brennan, because also there is the question of whether New York can resume its literacy tests when the 1975 ban expires.

So even if the Georgia case would decide that adversely, this case would still be here with regard to the literacy test.

William J. Brennan, Jr.:

Thank you.

Jack Greenberg:

The first forum in which we sought to appear was before the Attorney General of the United States under Section 5 of the Voting Rights Act.

The appellants communicated with the Attorney General concerning the January and March voting changes and said that when New York submitted its applications for clearance of these voting changes, the appellants wanted to appear as prescribed by the regulations and make representation of these changes were made with the purpose and the effect of racial discrimination.

In fact, the State of New York did submit one set of changes to the Attorney General, but they were sent back as incomplete.

They never sent them back again.

Second, the second forum in which we sought to appear and this opportunity also was washed out by the District of Columbia judgment was in the Southern District of New York, we filed what for the purposes of brevity, I would describe as an Allen type lawsuit, a lawsuit seeking an injunction to compel the State of New York to submit its Voting Rights Act changes to the Attorney General.

And of course, when the District of Columbia judgment was entered, that exempted New York from the requirements of Voting Rights Act so that Allen type lawsuit essentially is wiped out also.

Thirdly, on the day that we filed the lawsuit in New York, we sought to intervene in the pending litigation between New York and the United States in the District Court for the District of Columbia.

Now the United States did not oppose intervention although the State of New York did.

Jack Greenberg:

The District Court denied intervention without opinion and granted summary judgment for New York without opinion.

Now appellants have had no hearing before the Attorney General, the appellants have had no hearing in the District Court of New York and appellants have had no hearing from the District Courts of the District of Columbia.

William H. Rehnquist:

Mr. Greenberg, you filed an independent action up in New York challenging the redistricting as such?

Jack Greenberg:

No, we did not.

We merely filed an Allen type action in New York urging that the changes should be submitted to the Attorney General of the United States.

The United States, as I read its brief and what it said in this case, does not claim that intervention in cases of this sort never can be allowed and indeed it maybe of some relevance if the United States did not oppose or intervention in the court below.

Rather as I understand the position of the government, it is two parts.

One, that there was no showing of inadequate representation by the United States in the court below and second that the application of the appellants was untimely.

We submit that the record makes clear; one, that representation of the claims of the interveners or the appellants by the United States was indeed inadequate and that it is the timeliness not only where we nearly timely, but the application was filed at the optimum, the best possible time that it could have in the interest of the litigation, in the interest of efficient operation of the Courts, in the interest of the appellant and all the parties.

And finally we claim in the words of Rule 24 that the disposition below quite clearly impaired and impeded the appellant’s opportunity to protect their interests.

To demonstrate that there was inadequate representation of our claim below, it is first necessary to describe what that claim is and what adequate representation would have consisted of and how existing representations failed.

We’ll first discuss this, then the issue of timeliness and then the issue of how it was —

William J. Brennan, Jr.:

Mr. Greenberg, are you conceding that your claim of intervention invokes only the discretionary?

Jack Greenberg:

No, no.

This is an application of intervention as of rights.

William J. Brennan, Jr.:

As of rights, yes.

Jack Greenberg:

This is an application of intervention as of rights and we would submit that we call for squarely under the three principle requirement in that rule, that is inadequate representation, timeliness and impeding or impairment of our interests.

Byron R. White:

But a fortiori, you expect your right of that would also satisfy the (Inaudible)?

Jack Greenberg:

Certainly, yes.

Byron R. White:

And you would say that you did even if you weren’t?

Jack Greenberg:

Yes.

Byron R. White:

And acted like this?

Jack Greenberg:

Yes and we might take that as a protective position Mr. Justice White, but I think we’re so clearly right as to intervention as of right, we have not argued that except to mention it in our brief.

Now as to inadequacy of representation, the claims of the intervenors arose in the Voting Rights Act of 1970 which specifically granted its protection to the black and Puerto Rican voters of Bronx, Kings and New York counties in the State of New York because the amendment specifically and the legislative history demonstrate exhaustively carried out the design of Congress and the administration to present it to vote of Congress, to cover the north as well as the south.

The 1965 law had covered the south.

When time came to extend the law, it was quite clear that the general sentiment of the administration and of Congress was that it would be extended only if were made nationwide and that is what was done and the legislative history is replete with references to the fact that Bronx, Kings and New York county would be covered designed for that very purpose.

Numerous senators and the Attorney Generals so testified.

The formula that covers these counties is that in 1968, they had to view the literacy test and few than 50% of the persons of voting age registered for voting.

That coverage meant two things, when a covered jurisdiction may not use a literacy test while covered by Section 4 and 5 and no changes in the voting laws may be made.

The keywords in the statute and they are in Section 4 which appears in the statutory appendix of our brief is that no such test or devise has been used during the ten years preceding the filing of the action for the purpose or with the effect and I would like to underscore the word effect of denying or bridging the right to vote on account of race and color.

Jack Greenberg:

Now the meaning of the words purpose and effect can be found extensively throughout the legislative history and in numerous reported decisions, many of which from this court which was set forth in the brief but for purposes of brevity I am just focusing on one thing about which I think there is no disagreement.

I’d like to talk about this Court’s opinion in Gaston County against the United States.

Meaning of purpose and effect is elucidated in that opinion in several ways that’s directly pertinent to this.

Gaston County case decided under the 1965 version of the Voting Rights Act and the 65 version differs from the 70 version only in that, no longer is Gaston County included and southern counties, but that the Congress intended to cover Bronx, Kings and New York counties quite explicitly.

Now the Gaston County case held that the 1965 Act applied to a jurisdiction where non- whites were more illiterate than whites because they had received an inferior education in the county and Justice Harlan’s opinion says that he assumes that they were residents of the county at the time they received their education, but there is a footnote which says “the result would be no different if they had migrated from other counties elsewhere where they had received an education which had caused them to be illiterate.”

And Attorney General Mitchell and numerous senators testified extensively as we have set forth in our brief that that same principle of an inferior education leading to illiteracy or an inferior education in another jurisdiction causing someone to become literate, who then moved to a northern jurisdiction, brings that northern jurisdiction under coverage of the Act.

Now if we just talk briefly about this quite clear aspect of what constitutes effect of racial discrimination, one would think that for there to be adequate representation of the interest of the claimants in the District Court, that should have been brought to the attention of the District Court.

That legal explication of the statute should have been at least presented to the District Court if not urged upon it and such evidence as might be available should have been also presented to the District Court, so that the Court could make a judgment as to whether or not Bronx, Kings and New York county came under the Gaston County decision but that was not done at all and we just say with, one can elaborate under a great deal that if the key legal principle and the available facts, many of which have appeared in our motion to alter judgment when after we were denied intervention, we came back again and said, “look, if you are taking the position that we haven’t presented the evidence, we don’t have to present the evidence on a motion to intervene but nevertheless here is at least such of it as we can gather in this brief period of time.

If that available evidence was not also presented to the District Court, then we say that it is inadequate representation, per se, and as a matter of law and as a matter of common sense we just don’t see how it can be claimed that there was such a thing as an inadequate —

Byron R. White:

An adequate representation —

Jack Greenberg:

Of the claim of the interveners.

Byron R. White:

Why is that an issue in the case whether there was adequate representation?

Jack Greenberg:

Because that’s one of the requirements of Rule 24, the intervention rule.

We may intervene if our claims are being inadequately represented, if we come in, in timely fashion and if our ability to present our claims are being impeded.

Byron R. White:

The statute says — it says for New York to the United States?

Jack Greenberg:

The statute allows the New York —

Byron R. White:

The statute says that the United States have every reason to believe so and so is supposed to accept the judgment?

Jack Greenberg:

Yes, but the statute does not make New York’s concession conclusive as a matter of law and the United States —

Byron R. White:

The Attorney Generals —

Jack Greenberg:

That’s not – I am sorry, there is no like the attorney general concession, conclusive is a matter of law and the United State concedes —

Byron R. White:

But it doesn’t purport to say that the United States is representing a lot of other interests?

Jack Greenberg:

The statute doesn’t purport to say the United States, but the United States’ position in this case and —

Byron R. White:

[Inaudible] if it acts strictly based on the evidence doesn’t have reason to believe so and so and concern that there are duties when spoken of the statute.

You may disagree with it but how can you say that they have many obligations to represent here?

Jack Greenberg:

The issue is, I would not want to put it in the way whether the United States is derelict in its duty because that sounds some sort of an accusation.

We just say that this action is concluding the rights of the appellants and the interveners and they seek to intervene in the action to assert their rights which is going to be effected by the judgment in this case.

It is not a question of the United States is derelict in its duty, that’s a characterization that is not called for.

Byron R. White:

I know that they are representing it because they have a duty to represent everybody?

Jack Greenberg:

Well it maybe, I would argue that perhaps though one might assume that they would be representing us until something or the right of the citizens of New York until something appears to the contrary, but certainly the citizens have a right to intervene if they are not being represented.

The United States’ action might —

Byron R. White:

The right to intervene?

Jack Greenberg:

That is right, yes.

Now the Gaston County theory is only part of it, Numerous senators and the Attorney General testified that there is coverage of the statute if there’s a differential literacy rate, if the mere existence and Attorney General Mitchell testified to this, the mere existence of literacy test is a deterrent to registering and voting, quite apart with whether or not there is act of purposeful discrimination and then of course, the matters of unequal education both within or without the jurisdiction.

Nowhere in the investigation or the submission to the court below were these standards explored, where these rules of law present the Court was evidence presented in.

So we submit that the claims of the interveners were not adequately represented and as Justice White pointed out that maybe without regard to what the duty of the United States was in this case, but in any event, the judgment in this case impairs and impedes the rights of the claimants to assert certain claims and that the representation of the United States in this regard with —

Byron R. White:

I think that the statute, and you agree that unless the United States generates some reason or believing that as practices it had a discriminatory practice, it’s supposed to concern?

Jack Greenberg:

Well it may and then of course —

Byron R. White:

Isn’t that the statute says?

Jack Greenberg:

Yes, yes the statute says that.

Byron R. White:

And so that it has itself assessed the evidence and if it feels that it has no reason not to consent it’s supposed to consent?

Jack Greenberg:

And they maybe totally and I have no doubt or totally objective and sincere in this, but there still may not be an adequate representation of the interest of the claimant?

Byron R. White:

You just made this agreement.

Jack Greenberg:

That’s right.

Byron R. White:

And it has opportunity presented contrary to the Court?

Jack Greenberg:

I might say as we tried to point out in our reply brief, the brief of the United States is full of a great deal of expression that we have made very serious accusations against.

We just said they have been wrong or they might adequately represented us and there is nothing —

William J. Brennan, Jr.:

Well I know, but I take it from what you now said Mr. Greenberg, on the face of the statute, they didn’t have to represent you and that is why — if you — now if you concede that then don’t you automatically satisfy the first requisite of the intervention?

Jack Greenberg:

Well, that would be true and frankly Mr. Justice Brennan, I don’t know whether on the face of the statute they do or they don’t have to represent us in various senses that word might have.

One would assume the United States would represent the rights of citizens in the United States with regard to racial discrimination.

William J. Brennan, Jr.:

Well I know but this statute does provide just as Mr. Justice White said that there is a duty on the United States to consent in certain circumstances?

Jack Greenberg:

Yes and —

William J. Brennan, Jr.:

Now if that is so and they may do this independently of any interest of yours, then I ask why don’t you have — by reason of that haven’t you satisfied the first —

Jack Greenberg:

Well I would submit we certainly have.

I am certainly not going to disagree with that but the fact is, whatever their duty might be and it’s not entirely clear in the face of the statute.

In this particular case, they did not presented or argued the court below the relevant facts in the law.

That’s the timeliness I would just like to say a word and that is the brief reduces to a battle of our affidavits and their assertions to the brief as to what one lawyer said to another and in my experience at least, that kind of dispute is quite common place in nobody’s line.

It’s just a question of subjective interpretation of what was meant and issues of this sort should be determined wherever possible on objective grounds and we can see no more timely filing that was then within two days after having learned of the United States consent and four days of the actual filing of the consent.

Certainly, we couldn’t have filed before they filed their consent or very well might have been premature because we didn’t know what their position is going to be.

Having filled their consent coming into court within four days —

Byron R. White:

Would you have thought Mr. Greenberg that you would have been fully as entitled to intervene before they filed their consent as after?

Byron R. White:

I think they could be making the same argument if you had filed before?

Jack Greenberg:

I think we might have been, but I think that if we had come in earlier and the Court said, “Well, how do you know that they’re not going to urge exactly all of your positions upon us,” we might then argue that we represent ourselves better.

We have done a more exhaustive examination, we don’t know what they’ve done and so forth but certainly I would think the optimum time to file would be when their position has become manifest.

At least I would urge that and I would think that it would have been perhaps an unnecessary burden on the Court and to come in with an intervention before their position become manifest.

New York argues that this would have disrupted the primary process, but of course, that is hardly necessary.

The Court could have required an accelerated hearing.

It could have required the lawsuit to go on while a primary process was going on, to put one on simultaneously.

It could have made moderate adjustments in the dates.

These are common place problems with regard to voting cases.

What the Court could have done what will happen here if petitioners or appellants are to prevail on this appeal make any ruling apply to a later elections so that the disruption of the primary process is not a substantial argument.

More of which we pointed out that to the extent if there is any inconvenience, we have to look at the fact that New York waited 18 months after the Voting Act was passed and nine months after the Attorney General said that it was covered to even file its action, then he gave the United States 90 days.

If you look at all the different time sequences in this case, the time between various acts, the four days within which we acted is a small fraction of the time that anybody else took to do anything at all.

I like to reserve the balance of my time.

Warren E. Burger:

Mr. Randolph.

Raymond Randolph Jr.:

Mr. Chief Justice and may it please the Court.

I would like to respond first of all, to counsel’s suggestion that what this Court could do on remand is send this case back for the District Court to consider their motion to intervene while the leaving the 1972 election results in New York in effect.

I would point out that that does not require any action by this Court.

The substance of what Mr. Greenberg suggests and I will direct the Court’s attention now to Section 4 on page, essay 2 of their brief which is the effect white brief and you’ll notice in the first full paragraph, the second sentence says, “the Court shall retain jurisdiction of any action pursuant to this subsection for five years after judgment.”

Warren E. Burger:

What page again?

Raymond Randolph Jr.:

Essay two Mr. Chief Justice.

It’s the appendix to their brief and I am pointing now to the first full paragraph at the top of the page, second sentence.

The Court shall retain jurisdiction of any action pursuing to the subsection after judgment.”

The second part of that sentence allows the Attorney General to reopen the case at any time within five years.

Now —

William H. Rehnquist:

It won’t do him any good if he’s been denied leave to intervene already?

Raymond Randolph Jr.:

Well, I think it does him some good in the sense that, I think they can renew their motion to intervene at any time within this five year period.

It’s simply like a consent judgment in an antitrust case where people intervene after the consent judgment is entered.

The potential disruption to New York’s 1972 elections has now passed as Mr. Greenberg himself has suggested.

We believe that was the primary reason why the District Court denied intervention at the time that it did.

The second thing is that the 4A judgment is now outstanding.

Raymond Randolph Jr.:

Now this is not in the record, but I understand councilmanic districts have been changed.

I think counsel from New York will talk about this in New York.

So that since the 4A judgment is now outstanding, that is exempting New York, there won’t be a disruption of elections in the future while the appellants’ motion is determined and the timeliness problem which we consider from the point of view of not only how long has this action been pending but what effect would allowing intervention at this time have on the State of New York.

It’s not longer a critical problem.

Now I can’t say what position the United States would take if they renew their motion to intervene.

We didn’t object before but I think that in line with Mr. Greenberg’s suggestion that what the Court should do in this case is just send it back to the District Court and allow the 72 elections to remain in effect while the same result can be accomplished simply by the provisions of the statute itself.

The other point I would like to make is that although appellants have said in their brief, “if we can’t intervene here, under what conceivable circumstances can anyone,” I think really misstates and misconceives the problem here because what they are contending for is intervention as of right.

There is always permissive intervention and that is a much a easier process to urge upon the Court because the only requirement is the claim that they have is as in common with a question of fact or law in the main action and that’s even if they have no right to intervene which is not our position in this case, it still leaves them the opportunity to seek permissive intervention.

William J. Brennan, Jr.:

What are you suggesting that we not decide this case but let it go back?

Raymond Randolph Jr.:

No, the issue before this Court is quite simply, did the District Court err in April of 1972 in denying intervention to appellants at that time in light of the fact that the New York and I will go through the sequence of events —

William J. Brennan, Jr.:

What you’re suggesting is, as I understood it, if we sustained that position —

Raymond Randolph Jr.:

Yes.

William J. Brennan, Jr.:

— sustained the lower court, you are saying it is meaningless anyway because they can go back and do it all over again?

Raymond Randolph Jr.:

I’m saying as without prejudice to the appellants to renew their motion to intervene, the difference is —

William J. Brennan, Jr.:

Right and then the issues then of intervention of right or permissive intervention that arise again?

Raymond Randolph Jr.:

Well, it would depend on their claims, but we have — our position in this case really, our position is we have assumed a number of things.

First of all, we didn’t object below to their intervening.

We consider this a matter of discretion with the District Court because of the time it was filed.

That was New York’s problem, they had a primary election coming up, nominating petition circulating the entire thing would have been through a haywire, but we have argued this case on the basis that their application at that time was not timely.

Now the difference would be if they now filed under Section 4A.

William J. Brennan, Jr.:

You wouldn’t have that argument.

Raymond Randolph Jr.:

That argument would not be present.

We didn’t object before.

I can’t commit as to what position we take.

William H. Rehnquist:

Might a Court not hold a permissive intervener to stricter time requirement into an intervener as a bright that that being that it really doesn’t have to get in anyway and therefore your resolve time judgments against him whereas in the case of intervention of right you may allow more latches?

Raymond Randolph Jr.:

That maybe true, I think that’s probably true, I think that the opinions may not state that, but I think that the gist of them is along these lines, Mr. Justice and in fact, under permissive intervention, the Court wanted to exercise its discretion is required to consider whether the intervention would delay or prejudice the adjudication parties in the case.

Warren E. Burger:

Do I understand you to imply at least not say that they can go back now in a permissive intervention and get everything that this Court could give them?

Raymond Randolph Jr.:

Well, I think that would be a matter for the District Court to determine. One of the problem — we don’t have an opinion here.

Warren E. Burger:

Well but of course, that if they go back and if they get it, they would have had everything that this Court can give.

Raymond Randolph Jr.:

With one exception, with one important exception which now Mr. Greenberg has told us they wouldn’t get anyway, which is that they would not have held up the 1972 elections in New York.

Raymond Randolph Jr.:

If one reads the papers in this case, if you read their motion to affirm, there’s not a mention of what the issue is in this case which is about New York’s literacy test or whether New York had applied that discriminatorily in the past years.

I direct the Court’s attention to that.

All it talks about is the New York primary elections.

Warren E. Burger:

We will resume there in the morning.