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ALI ABA
Oct. 1976 Term-No. 1 mur U L.h.IL DiBIr O urnarmai LuUUi ut oI September 16, 1976
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UNITED JEWISH ORGANIZATIONS OF
WILLIAMSBURG, INC. v. HUGH L. CAREY
(Docket No. 75-104)
Reapportionment of electoral districts-Use of racial consid-
erations in drawing district lines
On Writ of Certiorari to the United States Court of Appeals
for the Second Circuit. Decision below: 510 F.2d 512 (1975)
Analysis prepared March 30, 1976, by William Cohen, Pro-
fessor of Law, Stanford Law School, Stanford CA 94305;
telephone (415) 497-4932
Counsel for Petitioners: Nathan Lewin, Washington, DC; for
Respondents: Louis J. Lefkowitz, Attorney General, State of
New York
Issue
Whether it is constitutional for a State to take the race of
voters consciously into account in drawing lines for state
legislative districts for the purpose of giving nonwhite voters
a majority of voters in the districts.
Background and Significance
The Supreme Court has produced a mountain of law on the
issue of reapportionment. Most of that law, however, has dealt
with the relative size of electoral districts. The problem of the
gerrymander-conscious drawing of lines to give particular
groups more or less representation-has proved particularly
elusive. It is clear enough in principle that drawing district
lines for the sole purpose of reducing the political strength of
racial minorities is unconstitutional. On the other hand, it is
equally clear that there is no constitutional requirement that
district lines be drawn to achieve even rough approximation
of the voting strength of any group. Thus, where the claim is
made that lines have been drawn to reduce the voting strength
of racial minorities, the claim is often unsuccessful because of
inability to prove that the line was drawn consciously for that
purpose. This case is novel because it is conceded that the race
of voters was consciously taken into account in drawing dis-
trict lines, but for the purpose of increasing the political effec-
tiveness of nonwhite voters. It is also novel in that the com-
plainants are another ethnic minority.
Judge Oakes' majority opinion in the court of appeals de-
scribed the case as posing the subtle question whether a fed-
eral court should interfere to invalidate . . . a state legislative
districting plan . . . specifically drawn to ensure nonwhite
voters a 'viable majority' or a 'realistic opportunity for minor-
ities to elect a candidate of their choice' in state senatorial and
assembly districts. The question is made no less complex by
virtue of its being brought by a group of Jewish organizations
and individuals, speaking for the Hasidic community in the
Williamsburg section of Brooklyn, New York, but addressing
themselves to the effect of the districting upon them qua white
voters as well as qua members of the Hasidic community.
Further added to this recipe for judicial perplexity is the fact
that the districting scheme was enacted after disapproval of a
prior districting by the Attorney General of the United States
.. on the basis of the State's abridgement of the right of non-
whites to vote [pursuant to the Voting Rights Act of 1965].
510 F.2d at 514.
The case thus provides an opportunity for the Court to fur-
ther elucidate the issues of constitutional law that relate to
claims of racial gerrymanders in political districting. However,
it presents a potential issue that goes well beyond the field of
political districting: the extent to which racial lines drawn for
the purpose of aiding racial minorities-sometimes referred to
as benign or reverse discrimination-offend the consti-
tution. The latter issue was before the Court two years ago in
DeFunis v. Odegaard, 416 U.S. 312 (1974), dealing with
minority preference in state university law school admissions.
The Court there did not reach the issue, holding 5-4 that the
DeFunis case was moot. (Only one Justice, Mr. Justice
Douglas, reached the merits; in a lengthy dissent, he sug-
gested that, in many cases, use of quotas to aid racial minor-
ities was unconstitutional.)
Facts
Since New York employed a literacy test for voting prior
to 1970, and less than 50 per cent of the voting age residents
of Bronx, Kings, and New York Counties voted in the 1968
Continued on page 2
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