APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK.
Warren, Black, Douglas, Clark, Harlan, Brennan, Stewart, White, Goldberg
MR. JUSTICE BLACK delivered the opinion of the Court.
Appellants, citizens and registered voters of New York's Seventeenth, Eighteenth, Nineteenth, and Twentieth Congressional Districts, all in New York County (the Island of Manhattan), brought this action in the United States District Court for the Southern District of New York challenging the constitutionality of that part of Chapter 980 of New York's 1961 congressional apportionment statute which defined these four districts.*fn1 The Governor and several other New York state officials were named as defendants. Congressman Adam Clayton Powell, who represents the Eighteenth Congressional District, and several other New York County political leaders were permitted to intervene as defendants supporting the constitutionality of the apportionment act. Appellants charged that the part of the New York Act in question deprived them of rights guaranteed by the Due Process and Equal Protection Clauses of the Fourteenth Amendment and by the Fifteenth Amendment, which provides that "The 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." Their complaint alleged that:
"Chapter 980 establishes irrational, discriminatory and unequal Congressional Districts in the County of New York and segregates eligible voters by race and place of origin. It is contrived to create one district, the 17th Congressional District, which excludes
non-white citizens and citizens of Puerto Rican origin and which is over-represented in comparison to the other three districts in the County of New York. The 18th, 19th and 20th Congressional Districts have been drawn so as to include the overwhelming number of non-white citizens and citizens of Puerto Rican origin in the County of New York and to be under-represented in relation to the 17th Congressional District."*fn2
The case was heard by a District Court of three judges. During these hearings, counsel for appellants made it clear that their case did not depend on "under-representation because of the variation in the size of the Congressional districts"; it was rather, he said, "a case of ghettoizing the Island of Manhattan" so as "to create a white Congressional district and a non-white Congressional district." "I think," counsel said, "the only province of the Court in this area is to determine whether or not these districts have been created with racial considerations in mind, and, if they have, or if the results of this districting, the effect of the statute is to create racially segregated areas, we maintain that it violates the Fourteenth and Fifteenth Amendments." Appellants offered maps, statistics, and some oral evidence designed to prove their charge that it was impossible to have districts such as these were unless they "were drawn with regard to race." The statistics showed that the Eighteenth District contained 86.3% Negroes and Puerto Ricans; the Nineteenth, 28.5%; the Twentieth, 27.5%; and the Seventeenth, 5.1%. The evidence also showed irregularities in the boundaries of the districts and some variation
in population among the four.*fn3 Appellees presented no oral testimony but did offer historical maps, a table from the Bureau of the Census, and a message from the President to the Congress on the subject of congressional apportionment.
A majority of the District Court found that appellants had not made out their case on the crucial factual issues.*fn4 Judge Moore broadly found that "no proof was offered by any party that the specific boundaries created by Chapter 980 were drawn on racial lines or that the Legislature was motivated by considerations of race, creed or country of origin in creating the districts."*fn5 He concluded, "Plaintiffs having failed upon the facts and the law to establish any violation of their constitutional rights as a result of the action of the New York Legislature in enacting Chapter 980 of the Laws of 1961, the complaint must be dismissed."*fn6 Judge Feinberg concurred in Judge Moore's result because he, too, believed that appellants had
"not met their burden of proving that the boundaries of the new 17th, 18th, 19th, and 20th Congressional Districts were drawn along racial lines, as they allege. . . .
". . . Plaintiffs did introduce evidence which might justify an inference that racial considerations motivated the 1961 reapportionment of congressional districts in Manhattan. However, other inferences, as set forth below, are equally or more justifiable. Plaintiffs have a difficult burden to meet in attacking
the constitutionality of this state statute. . . . Upon analysis, I do not think that burden has been met.
". . . In short, based upon the entire record, I do not feel that plaintiffs have proved their case."*fn7
Judge Murphy dissented. He viewed the evidence as "tantamount for all practical purposes, to a manthematical demonstration" that the legislation was "solely concerned with segregating" white voters from colored and Puerto Rican voters "by fencing colored and Puerto Rican citizens out of the 17th District and into a district of their own (the 18th)" and as establishing " per se a prima facie case of a legislative intent to draw congressional district lines in the 17th and 18th Districts on the basis of race and national origin."*fn8
While a number of other matters have been discussed, we find it necessary to decide only the first question presented in the jurisdictional statement, namely "whether appellants sustained their burden of proving that the portion of Chapter 980 . . . which delineates the boundaries of the Congressional districts in Manhattan Island segregates eligible voters by race and place of origin in violation of the Equal Protection and Due Process Clauses of the Fourteenth Amendment and in violation of the Fifteenth Amendment." We accept the findings of the majority of the District Court that appellants failed to prove that the New York Legislature was either motivated by racial considerations or in fact drew the districts on racial lines. Compare Gomillion v. Lightfoot, 364 U.S. 339. It may be true, as Judge Feinberg thought, that there was evidence which could have supported inferences that racial considerations might have moved the
state legislature, but, even if so, we agree that there also was evidence to support his finding that the contrary inference was "equally, or more, persuasive."*fn9 Where there are such conflicting inferences one group of them cannot, because labeled as "prima facie proof," be treated as conclusive on the fact finder so as to deprive him of his responsibility to choose among disputed inferences. And this is true whether the conflicting inferences are drawn from evidence offered by the plaintiff or by the defendant or by both. Hernandez v. Texas, 347 U.S. 475, does not support the dissenting view of Judge Murphy that appellants' evidence here established a prima facie case compelling the District Court, despite conflicting inferences which could be drawn from that evidence, to find that New York created these districts on the basis of race and place of origin. Hernandez followed the rule laid down in Norris v. Alabama, 294 U.S. 587, and other cases,*fn10 that proof of a long-continued state practice of not calling Negroes as jurors made out a prima facie case sufficient to justify, but not necessarily to compel, a finding of discrimination on account of race. The conclusion of racial discrimination in those cases was reached only after an appraisal of this practice along with all the circumstances. It is plain to us that the District Court was not compelled to find that these districts were the product of a state contrivance to discriminate against colored or Puerto Rican voters. As the majority below pointed out, the concentration of colored and Puerto Rican voters in one area in the county made it difficult, even assuming it to be permissible, to fix districts so as to have anything like an equal division of these voters among the districts.*fn11 Undoubtedly some of these voters, as shown by this lawsuit,
would prefer a more even distribution of minority groups among the four congressional districts, but others, like the intervenors in this case, would argue strenuously that the kind of districts for which appellants contended would be undesirable and, because based on race or place of origin, would themselves be unconstitutional.
We accept the District Court's finding that appellants have not shown that the challenged part of the New York Act was the product of a state contrivance to segregate on the basis of race or place of origin. That finding was crucial to appellants' case as they presented it, and for that reason their challenge cannot be sustained. We do not pass on the question which appellants have not presented here, that is, whether the state apportionment is constitutionally invalid because it may fail in its objective to create districts based as nearly as practicable on equal population.*fn12 See Wesberry v. Sanders, ante, p. 1. Since no such challenge has been urged here, the issues have not been formulated to bring it into focus, and the evidence has not been offered or appraised to decide it, our holding has no bearing on that wholly separate question.
The judgment dismissing the complaint is
211 F.Supp. 460, affirmed.
MR. JUSTICE HARLAN, concurring.
I join the opinion of the Court on the premise that the only issue in this case involves alleged racially segregated districts. The case is thus, in my opinion, governed by entirely different constitutional considerations, see ...