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

RESPONDENT:National Association for the Advancement of Colored People
LOCATION:Allegheny County District Court

DOCKET NO.: 72-129
DECIDED BY: Burger Court (1972-1975)

CITATION: 413 US 345 (1973)
ARGUED: Feb 27, 1973 / Feb 28, 1973
DECIDED: Jun 21, 1973

A. Raymond Randolph, Jr. – for appellee United States
Erwin N. Griswold –
George D. Zuckerman – for appellee New York
Jack Greenburg –
Jack Greenberg – for appellants
Raymond Randolph Jr. –

Facts of the case


  • Oral Argument – February 27, 1973
  • Audio Transcription for Oral Argument – February 27, 1973 in 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

    Warren E. Burger:

    You may resume, you have about nine minutes left.

    A. Raymond Randolph, Jr.:

    Mr. Chief Justice and may it please the Court.

    As I was discussing yesterday, the only issue in this case is did the District Court earned denying intervention in April 19, 1972 in light of the circumstances existing at that time in light of the allegations before it.

    Under Rule 24 (a), the application for intervention must be timely it is a requirement of the rule.

    We think this is particularly important on Section 4 (a) cases where time may in fact be of the essence.

    Congress itself recognize this by assigning these cases to three Judge District Courts and allowing for direct appeal to this Court.

    Now here appellants file their motion to intervene on April 7.

    The action itself have been filed by the State of New York in December 3rd. More then four months had passed since the action had originally been filed, the Justice Department had been investigating New York’s complaint during this time and had completed his investigation.

    In the District Court, at this time the only explanation, appellants gave to the District Court for filing the action at this time is contained on page 47 of the appendix.

    I read from their motion to intervene, paragraph six, “because counsel for petitioners was only informed within the last 48 hours, the United States would not adequately represent the interest of petitioners and because substantial litigation has not yet occurred.

    The instant application is to intervene is timely.

    As against this, New York objected to the intervention and their objections are contained on page 67 to 70 of the appendix.

    New York pointed out four basic things, number one; the action had been pending for four months.

    Number two, appellants or applicants at the time there before the District Court were clearly on notice of this case.

    The affidavit pointed to a New York Times article where political leaders in this counties were discussing whether to intervene or whether to take action with respect to New York’s complaint the fact that in the article itself which is reprinted in the reply brief of the appellants here also mentioned that a citizens voter education committee chairman had not mentioned the action.

    The other point that New York made is that intervention at this time would disrupt and possibly preclude New York’s upcoming primary elections where delegates to the democratic national convention would be chosen, where delegates to the state assembly and the state senate and congressional seats would be chosen.

    The reasons it would have that effect is because New York had agreed that this is reapportion and is covered by Section 5, unless New York got out from the Act under 4 (a), Section 5 would remain outstanding and then they would have to go through the lengthy process of having clearance with the Attorney General which could not be completed by the time the elections were scheduled to be held.

    The fourth point and form the Department of Justice’s point of view and we think the most important that New York made is that at no time, during this period that the appellants offer any evidence to the Department of Justice regarding why New York was not entitled to summary judgment.

    Now this is what was before the District Court, these are the allegations that were before the District Court and of course the District Court denied intervention at that time.

    And we think that the Court acted within its discretion.

    The only other case dealing with intervention in the section 4 (a) case which is very close to this case is the Apache County case which we’ve sited and discussed beginning on page 22 of our brief.

    Judge Leventhal speaking for the Court in that case in discussing intervention said that in these kinds of cases, the applicants must at least first and I quote “bring to the attention of the Department of Justice any instances of discrimination in the use of literacy test.

    The appellants have not done so here and in fact just about a year and half before they sought to intervene they go into record indicating that in fact they had no such evidence.

    I read from the 1969 hearings on the extension of the Voting’s Right Act and Clarence Mitchell’s testimony before the house judiciary committee to chairman of manual seller have used—

    Is this something the District Court would consider?

    A. Raymond Randolph, Jr.:

    No it’s not, it’s not.

    I am trying to indicate why, a possible explanation why no evidence was presented to the Justice Department.

    This is on record, I am reading from pages 251 to 252, the hearings which is cited throughout appellants brief.

    Chairman seller have used one of the principle officials of the national association for the advancement of colored people had any appreciable complaints from parts of the country other than those southern states which indicate that there are abuses of the type you have mentioned here.

    Mr. Mitchell, the answer to that question Mr. Chairman is no, it goes on to say, “I would further state that I would check with the general council the NAACP legal defense and education fund Mr. Greenburg, may I ask for his permission to quote him to the said committee?”

    A. Raymond Randolph, Jr.:

    He said “we have not any cases in the long history of our organization involving denial of the right to vote for literacy reasons outside the southern states of this country.

    We have very little litigation on the question of voting in states other than those covered by the 65 Act.

    Byron R. White:

    Well how far outside the record can we go in reviewing the District Court’s decision?

    A. Raymond Randolph, Jr.:

    I think that you should state exactly within the record Mr. Justice.

    I site this because there has been an awful lot of testimony cited on the other side about what other people said during the 1969 hearings.

    I am trying to set kind of the atmosphere that was present at the time when New York instituted this suite, what people concerned with this questions thought about.

    We had allegations in the case that well — we were interested in this case all along and no one came to us, to ask us in our view of the case.

    In fact, that is not entirely accurate but the point is that for four months nothing was done while the Justice Department was investigating the case and we think that it’s a particular appropriate requirement for intervention in these kinds of cases and the Court in the Apache County.

    So help that the applicants ought to first come to the Justice Department who is investigating the case and present it with the evidence that they have of discriminatory use of literacy test.

    In fact I think if you remember the argument of my colleague here yesterday, that is exactly what they are going to do with respect to the section five actions.

    Does necessarily all of your argument what they can do and what term?

    A. Raymond Randolph, Jr.:

    That is right, that is right.

    Now would you say it was the time that goes the election?

    A. Raymond Randolph, Jr.:

    Right, I think that —

    Well, it wasn’t necessary to enjoin the election or anything in anyway to make a conviction.

    A. Raymond Randolph, Jr.:

    I don’t believe that seems Justice, I will try to explain why.

    Why, I would suppose that everything that the Court have authority to what some election proceed under some statute that might be unconstitutional.

    A. Raymond Randolph, Jr.:

    First of all, the first point I would like to make is that that was not suggested to the District Court, in fact —

    Does that make a difference?

    A. Raymond Randolph, Jr.:

    Well I’m trying to set the stages to what was before the District Court in the basis.

    Second of all, the way the Voting Rights Act is framed, changes in voting cannot be implemented until they have been cleared by the Attorney General.

    Now the changes —

    That that decision would still had to be made is to whether this distinct was properly subject.

    A. Raymond Randolph, Jr.:

    Well the only way that requirement could be forgotten is if the state got a section 4 (a) judgment removing it from coverage.

    The appellants wanted to intervene to prevent New York from getting the Section 4 (a) judgment.

    If without that Section 4 (a) judgment, if New York sought to implement and conduct its election and might I add at the time that all this was going on, nominating petitions were beginning to circulate.

    Candidates are beginning to organize campaigns and so on, if they had sought to implement those changes that would have been a violation of section 5 of the Voting Rights Act.

    Regardless of whether the appellants action in New York state which they had implemented had to go on forward or not, it would still be a violation of the Section because they could not implement those changes until or unless they have an outstanding 4 (a) judgment.

    Pertaining to elections to need under statutes that the phrase are simply unconstitutional.

    A. Raymond Randolph, Jr.:

    Well in Allan and I remember —

    Maybe perhaps that — I don’t know what do you suppose would happen?

    I suppose that the government would have consented to let the elections proceed.

    A. Raymond Randolph, Jr.:

    Well on basis of hindsight, I suppose it would, I mean we certainly do not want to disrupt New York —

    You were consenting to take an alibi.

    A. Raymond Randolph, Jr.:


    What would the other side would have done you think?

    A. Raymond Randolph, Jr.:

    I think that if one reads the — if one reads the motion to intervene which is contained on pages 44 to 47, that is the motion to intervene.

    There is not a word in there about which is supposed to under rule 24 (c), is supposed to contain the grounds for intervention.

    There is not a word in there about whether New York had used its literacy test discriminatorily which was the issue in this case.

    This entire motion to intervene is framed on the basis that we want to stop New York from having these elections.

    So you think that was really the medium, the motivation to file the motion?

    A. Raymond Randolph, Jr.:

    I don’t see how anyone could reach any other conclusion if you read the motion to intervene.

    William H. Rehnquist:

    Is it your position because of the structure of the Voting Rights Act New York’s primaries could have gone ahead only if there was a final judgment form the District Court here exempted them from the coverage?

    A. Raymond Randolph, Jr.:

    Or in the alternative if they had gotten clearance from the Attorney General but the process of getting clearance that appellants have suggested that well we could — they could have gotten expedited.

    The regulation that they site in their reply brief says essentially the Justice Department will do the best it can but the point is if it takes 50 or 40 or 60 days to investigate redistricting in New York City then nothing can happen during that period of time.

    I mean the State of New York can’t pass unqualified candidates and this has an effect — more like a domino effect throughout the state.

    If you pull out three of the congressional districts for example, involving — or the congressional districts in Kings County, New York County and Bronx County that has a snow balling effect throughout the state because they are not done on county lines.

    You have pull them out and you have affect Richmond, you affect Westchester.

    May I ask you if — under the statute because you are obligated to consent to entry of judgment here unless you have some reason to believe this tested and used.

    A. Raymond Randolph, Jr.:


    Now, isn’t that very likely burden you have or the authority you have or the directions you have under Section 5 when something is presented to you.

    A. Raymond Randolph, Jr.:

    Very close, the issues are different.

    Well what is the issue how is the issue different?

    A. Raymond Randolph, Jr.:

    In Section 5 the question is whether to change in voting that has just been implemented is discriminatory on racial grounds in voting.

    In section 4 (a) the question is —

    I will put it to you this way, if you consent to the entry of judgment in a suit such as we have here.

    A. Raymond Randolph, Jr.:


    Wouldn’t you have passed the New York law if it had been submitted to you?

    A. Raymond Randolph, Jr.:

    I don’t think that follows at all Mr. Justice.

    No, it doesn’t.

    A. Raymond Randolph, Jr.:

    No, because the issue in this case is why the literacy tests in the past ten years used to discriminate on the basis of race.

    The question in Section 5 cases is has —

    Is the new statute.

    A. Raymond Randolph, Jr.:

    Is the new statute going to discriminate on the basis of race.

    Now I would hold that a state would get out from under Section 5 and not to section 4 and not go back to —

    At least it’s very unlikely that you would consent into one case and hold them up and hold the law.

    A. Raymond Randolph, Jr.:

    It would be unlikely only for the reason that if a state is not discriminated in the use of its literacy test can one conclude that it would not discriminate on the basis of districts that it draws.

    I don’t know whether that’s a valid conclusion.

    For these reasons, we think that the District Court acted within its discretion as we said before we did not object to the motion to intervene, after the motion to intervene was denied.

    We looked at the case and we believed that they acted within their discretion in denying at that time, thank you.

    What is your fundamental reason for saying that not as in intervention as a bright as compared with —

    A. Raymond Randolph, Jr.:

    Well, in the first place, the individual appellants in this case were five — are five people only from Kings County New York.

    None of them claim to be voting –victims of voting discrimination.

    All of them in fact say they are dully qualified voters.

    The organization represented is the NAACP which is the 18 branches of the NAACP in New York City.

    What they are purporting to represent Mr. Justice is simply the right of minority groups not to be discriminated on the basis of race but that’s precisely what the Attorney General is charged with representing under the Act.

    We don’t think their interest is any different from the Attorney General, that is to represent the public interest.

    Now I know if only one case really where an intervener has been allowed to come in to represent the public interest and that is the El Paso case.

    If that case is not restricted, if it’s not restricted to situations where the Government has violated or prior mandated the Court then we would agree that in certain circumstance, we think that people can come in to intervene as a right in Voting Rights Act cases.

    I mean we would have no other choice but to say that but we think that as a prerequisite they ought to at least submit evidence to the Department of Justice which is investigating the matter and say “look, this is why we think New York are entitled to a 4 (a) judgment.”

    We don’t think that a person should be allowed that just simply sit back, have the evidence, wait for the government to complete its investigation, wait push it all the way to the moment before primary elections were going to be held and then suddenly say “Hey, we have this evidence and we don’t think New York is entitled to the summary judgment it seeks.”

    We think they ought to have an obligation to come in earlier and present us with it that is what appellants are going to do under their Section 5 submission.

    Mr. Greenburg mentioned that yesterday that the first step is they were going to present the government with the submission about why, thank you.

    Warren E. Burger:

    Very well, Mr. Attorney General.

    Erwin N. Griswold:

    Mr. Chief Justice and May it please the Court.

    I’d like to begin on this climate as question as trying to explain the serious harm that the state of New York would have faced if the delayed intervention of the applicants had been allowed in this case.

    To understand this you have to begin with the fact that to no fault of its own, the state of New York was not supplied with a complete set of census statistics by the United States Bureau of the Census until October 15, 1971 and it was only after that date that the state could begin the task of during a 150 new assembly districts.

    60 new State Senate Districts and then subsequently 39 new Congressional Districts, now it was recognized that a time involved in this and during this districts based on the principle of one man one vote which would characterize county lines could not be completed before the early part of 1972 at the earliest.

    And the state feared that a lengthy process involved in getting this clear through the Justice Department might delay the applicability of these new districts in the 1972 elections and thus the section 4 (a) suit was commenced.

    As it turned out our fears were realized since the assembly in senate districting statute was enacted on January 14, 1972.

    Erwin N. Griswold:

    It was submitted pursuant to Section 5 on January 24.

    We did not hear anything further from the Justice Department and so more than seven weeks later when on March 14 we received a letter saying that they wanted further information particularly demographic information as to the population and registration by race and by Puerto Rican ancestry in each of a districts in the three effective counties.

    I may add that information as to registration is not supplied by the Census Bureau, this requires extra information which would have taken weeks to complete.

    And therefore when we come to the date of April 7, when appellants are first seeking to intervene, any delay at that point would have caused chaos in the electoral processes in the state of New York.

    On April the 4th, the fist date for circulating petitions for the spring primary had already commenced.

    Without section 4 (a) judgments, all this new lines would have been subject to an injunction.

    As a matter of fact, the appellants at the same time if they filed a suite in Washington had filed a suit in the Southern District of New York to halt the elections under the new assembly senate and the congressional district lines.

    Now what would have happened, we would have to go back to the old districts which were based on population figures on the 1960 census that were 12 years out of date.

    Now against the serious harm that the State of New York would have suffered by this delay intervention, what do appellants’ papers show?

    Do they show thousands of cases in which individuals have been discriminated against in the application of a literacy test?

    No, they don’t even show a single instance in which any New Yorker has been discriminated in a conduct of a literacy tests.

    Apparently the thing that appellants are most worried about is their claim that the new congressional lines might have been based on racial gerrymandering.

    They site no specific evidence for this but even if this was the case, there is no reason why they could have not bought a Civil Rights Action under section 1983 in the District Courts of New York and trying to prove their case as would have been Dominic as we know from the Gamelan case and Wright v. Rockefeller has been done into many other instances.

    Instead what they are really trying to do is take the easy way out by a Section 5 action where you don’t have to prove discrimination, all you have to prove is that the state did not comply with the clearance procedures of Section 5 of the Voting Rights Act.

    May I remind the Court that in the case of South Carolina versus Katzenbach, at that the time the State of South Carolina was attacking the constitutionality of the Voting Rights Act of 1965 in a particular Section 4 and 5 and they made the argument that these sections were unconstitutional because for a state to prove the lack of discrimination would involve an almost impossible burden since it is very difficult to prove a negative of a proposition rather than the positive.

    This Court answered that contention while relying primarily on the testimony of the Attorney General Katzenbach and said “all the state need do is submit affidavits from their voting officials attesting to the fact that there has been no discrimination in a conduct of literacy test and man answer any evidence that the Justice Department might uncover during the course of their investigation and that was the situation here.

    That is what the State of New York did, they submitted to the District Court every literacy test that was given with in the past ten years and they submitted affidavits from election officials to show that not only did New York City just sit back and waited people to came to it to register.

    On the contrary, since 1964 the board of elections of the City of New York has sent mobile registration units into the heart of the inner city areas, into the areas where there was a high density of black population and through the use of sound trucks have encourage people to come to register and vote.

    I dare say, I know of no other city in the country which is that as much that try to encourage minority citizens to vote and therefore we feel that this particular action is particularly unfair that is the consequences of Section 4 based on a purely statistical presumption which we believe we have rebutted.

    Now at appellant’s briefs, before this Court although there was no evidence presented by them to the District Court, they have tried to draw an analogy to the Guest and County case, trying to argue that if you can prove educational inequality in New York you can somehow try to raise an argument of discrimination in the conduct of a literacy test.

    But in the Gaston case can be easily distinguished from the situation in New York.

    First of all in Gaston, no matter what the educational background of a person was, he had to pass the literacy test even if he has a PHD degree.

    In the state of New York prior to 1965, if you completed eight grades of school and since 1965 if you only completed six grades of school, you did not have to take a literacy test.

    So even if they could show us and we do not believe they could that there was inequality in various schools in the city of New York, this is irrelevant since anyone who has completed six grades of school would not have to take a literacy test.

    It is also been shown that throughout the ten year period leading up to the institution of this action, less than 5% of those who took the literacy test failed it.

    Appellants have also tried to raise an argument that Congress in enacting the 1970 Amendments of the Voting Rights Act sought to include New York State because of some evidence of discrimination and yet nothing in the record of Congress in the hearings of a 1970 extensions points to this thing.

    The purpose of the 1970 Amendment and using 1968 as a standard was simply because it would be illogical to extend the acts protection for an additional five years without updating the date of the election which would serve as the standard in measuring voter participation.

    Not because of any evidence that could have been any discrimination in New York State and indeed as the Solicitor General has pointed out, Clarence Mitchell when his testimony for the house Judiciary committee admitted that he had no evidence of any discrimination in New York State.

    Now one other argument, I would just like to point to one of the question of the remand, it has been lightly assumed that there would be no dire consequences if this thing was remanded to the District Court to take further testimony.

    May I point out that if the judgment below was vacated, we would now have a cloud of doubt as to the validity of all the existing assembly senate and congressional districts?

    Erwin N. Griswold:

    More than that in this past year, we had a new counsel statute adopted for the city of New York.

    33 new counsel somatic districts which would have not ever been cleared across by the Justice Department and therefore all this new council somatic districts for this year’s election would be subject to an injunction.

    In addition, al the election laws that have been passed including the run off provisions for the mayor election of New York city this year would be subject to a Section 5 injunction and therefore we view the consequences of a remand as posing continues chaos in the electoral processes in the State of New York, thank you.

    Warren E. Burger:

    Mr. Greenburg.

    Jack Greenburg:

    Mr. Chief Justice and May it please the Court.

    In reply I would like to touch on several points.

    The first is timeliness and apparently the time the appropriateness of the time is being measured by two ways.

    In the assumptions that counsel respondents are making as to what was the reason for the District Court judgment which it never articulated.

    First as to the time and which we filed after the Government’s position became manifest, we filed within two days after learning it and four days after filing it, I can’t imagine anyone doing anything speedier.

    Secondly as to the time before the primary election, counsel for the Government has referred to our action being on the eve of the primary.

    In fact it was 74 days in advance of the primary and I submit that any Court can tell counsel that if you want to intervene in this case and you want to have your hearing, get your case in within so many days of the week and go on with the primary, we will make other arrangements if necessary and counsel would have been ready and willing to do and of course do that sort of thing all the time.

    When do you have to file?

    Jack Greenburg:

    When do we have to file what?

    When you are in the primary you are on one of the districts you are going to —

    Jack Greenburg:

    That is correct Mr. Justice —

    Well when was the filing date?

    Jack Greenburg:

    The filing date I believe was considerably earlier, it was on April 4.

    And —

    Jack Greenburg:

    And we filed our application for intervention I think April 4th or 5th but the two could have go on simultaneously was illegal the Court then could have taken some appropriate measures to deal with that.

    Either as you suggested in your question, let things stand for the time being or order some alternative procedures to be decided.

    The case could have been decided in a matter of days or weeks.

    William H. Rehnquist:

    Are you that sure Mr. Greenburg that short of a final judgment by the District of Columbia Court that New York didn’t have to comply, that it could have granted some sort of intern permission for it not to comply?

    Jack Greenburg:

    New York was indeed proceeding at that time and it did not yet have a final judgment.

    New York had been proceeding since at least a month earlier with the filing of petitions and getting them out and so forth, so New York was that sure and obviously they were going on ahead with it.

    If their procedures have been validated and I submit that there are proposed answer and our motion goal to judgment and the material submitted indicate that we would have won that case if we were permitted to intervene.

    What was New York’s approach if they did not need to submit?

    Jack Greenburg:

    New York’s approach was that they had not used the — they had urged that they had not used the literacy test for ten years earlier with the purpose or the effective rights of discrimination.

    So coverage wasn’t–

    Jack Greenburg:

    Right but —

    So the coverage was not automatically intermittent but on it, to buy its terms they acted cover.

    Jack Greenburg:

    Yes, yes but they said they have not used the act with the purpose or the effect of racial discrimination, their only allegations, their only evidence was concerning effect and the evidence on effect if we are going to follow the Gaston County case was all on the paper and the census reports and various published reports which we have attached with our motion to over judge.

    So the timeliness thing live 74 days and there was many accord and still many litigant to get something settled in great deal short of time in 74 days and I submit if the Court have said that here and the parties haven’t complied they could have at that point denied intervention and not allowed the interveners to proceed further.

    None of that was — there was no reason, it is just you can’t intervene; you can’t appear, that’s the only thing that was said.

    Secondly, there’s been some suggestion about standing here and we submit that the applicants here have precisely the same standing as any voter in any reapportionment case and indeed the standing of the applicants’ right in fortune is they have additional standing that they are office holders, they are state assembly men.

    They are asserting the public interest I guess as any litigant does in a constitutional case and even far more than that they’re asserting their own personal interest and it has always been vindicated recognized by the court.

    Warren E. Burger:

    Your suggestion now Mr. Greenburg that the Court must always write an opinion explaining when it acts in a situation like this?

    Jack Greenburg:

    No, I said that obviously the Courts —

    Warren E. Burger:

    Maybe they thought the appeal or maybe they thought the motion was frivolous.

    Jack Greenburg:

    Well perhaps they might have, I think that we have to look at the objective record that we have before us and we will submit on the assertions here was not frivolous, it was quite serious and the litigants were serious litigants where state office holders and voters.

    The counsel or the counsel that the Courts were familiar with and not with anyone who is acting on a frivolous manner and then considerably at the allegations were serious and the serious exhibits were submitted in accord, along with the motion going through judgments so we just have to look at the papers we have before us to come to a conclusion as to what the Court may.

    As to the legislative history which Clarence Mitchell purports to quote me and I did quote me and that has been cited to the Court.

    I imagine that that was in a tactical situation of which he was arguing that the law should go forward, the Congress should go forward and pass the law and to cover only the south and not the north.

    Whatever Mr. Mitchell thought and whatever I thought of that moment, Congress thought otherwise and they have passed the law to cover the north as well as the south and indeed the very provision we are talking about is the Cooper Amendment and it just did not adventitiously touched upon New York.

    On page 19 of our brief Senator Cooper said “the chief state involvement of the state of New York, three candies of New York were involved Bronx, Kings and New York.

    In the 1964 election more than 50% of the voters are registered and more than 50% voted however for some reason in the 1968 election 50% were not registered of voting and so New York was not covered casually.”

    That is the intent of Congress and we submit that if the intent of Congress is not being carried out by a litigant in a lawsuit be it the United States or anyone else and that lawsuit will affect that party.

    Rule 24 quite explicitly provides that there maybe intervention that’s what the appellants attempted to do, that’s what they were not permitted to do.

    If being a matter of application or interventions as a right it should have been allowed and we submit the judgment below should be reversed.

    Warren E. Burger:

    Thank you Mr. Greenburg, thank you gentlemen.

    The case is submitted.