Wright v. Rockefeller/Dissent Douglas

by William O. Douglas

United States Supreme Court

376 U.S. 52

Wright  v.  Rockefeller

 Argued: Nov. 19, 1963. --- Decided: Feb 17, 1964

Mr. Justice DOUGLAS, with whom Mr. Justice GOLDBERG concurs, dissenting.

This case raises a question kin to that in Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110, where racial gerrymandering was used to deprive Negroes of the right to vote. Here no Negroes are deprived of the franchise. Rather, zigzag, tortuous lines are drawn to concentrate Negroes and Puerto Ricans in Manhattan's Eighteenth Congressional District and practically to exclude them from the Seventeenth Congressional District. Neighborhoods in our larger cities often contain members of only one race; and those who draw the lines of Congressional Districts cannot be expected to disregard neighborhoods in an effort to make each district a multiracial one. ^[1] But where, as here, the line that is drawn can be explained only in racial terms, a different problem is presented.

Manhattan is divided into four districts and as a result of the serpentine path that the lines follow, those districts reflect substantial, though not complete, segregation by races:

20th.................. 72.5. 27.5 In 1961 the legislature expanded the Seventeenth District by altering its boundaries in three respects: (1) it added an area on the upper East Side between 59th Street and 89th Street of whose population Negroes and Puerto Ricans make up 2.7% of the total; ^[2] (2) it added an area on the lower East Side called Stuyvesant Town of whose population Negroes and Puerto Ricans make up 0.5% of the total; and (3) it dropped from the Seventeenth District and added to the Eighteenth District a two-block area from 98th Street to 100th Street between Fifth Avenue and Madison Avenue of whose population Negroes and Puerto Ricans make up 44.5% of the total.

To achieve this racial gerrymandering, careful manipulation of the boundaries of the Eighteenth District was necessary. The southeast corner is near the East River and from there it goes west four blocks, north two blocks, west one block, north five blocks, west one block, north one block, west one block, north one block, west one block, north eleven blocks, west five blocks across the northern line of Central Park to Morningside, north along Morningside about twelve blocks, west one block, north along Amsterdam from 122d to 150th, east two blocks, north fifteen blocks to 165th, and east to East River.

The record strongly suggests that these twists and turns producing an 11-sided, step-shaped boundary between the Seventeenth and Eighteenth Districts were made to bring into the Eighteenth District and keep out of the Seventeenth as many Negroes and Puerto Ricans as possible. There is to be sure no finding to this effect by the three-judge District Court. One of the three judges thought, as I do, that the uncontradicted facts establish per se a prima facie case of a legislative purpose to design the Seventeenth and Eighteenth Districts on racial lines (211 F.Supp. 460, 472-473), saying that '(In Gomillion) * * * it was a glaring exclusion of Negroes from a municipal district. Here it is a subtle exclusion from a 'silk stocking district' (as the 17th is so frequently referred to) and a jamming in of colored and Puerto Ricans into the 18th or the kind of segregation that appeals to the intervenors.' Id., at 474 475.

A second judge concluded that petitioners 'have not met their burden of proving' that the boundaries in question were 'drawn along racial lines.' Id., at 468. The third judge expressed no view on the precise issue. ^[3]

The evidence which I have summarized was not rebutted or challenged, the State introducing no evidence. We have not only inferences from conceded facts but also New York's frank concession that it is not possible to say 'that race is irrelevant to districting.'

Racial segregation that is state-sponsored should be nullified whatever may have been intended. In Johnson v. Virginia, 373 U.S. 61, 83 S.Ct. 1053, 10 L.Ed.2d 195, we held segregation of a courtroom audience by race to be unconstitutional, without stopping to inquire what the motive may have been. A well-settled proposition applicable to many rights in the constitutional spectrum is that there may be an abridgement 'even though unintended.' See NAACP v. Alabama, 357 U.S. 449, 461, 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488, and cases cited. What the State has done is often conclusive irrespective of motive. Eubanks v. Louisiana, 356 U.S. 584, 587-588, 78 S.Ct. 970, 973-974, 2 L.Ed.2d 991.

I had assumed that since Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, no State may segregate people by race in the public areas. The design of voting districts involves one important public area-as important as schools, parks, and courtrooms. We should uproot all vestiges of Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256, from the public area.

The intervenors are persons who apparently have a vested interest in control of the segregated Eighteenth District. ^[4] They and the State seem to support this segregation not on the 'separate but equal' theory of Plessy v. Ferguson, supra, but on another theory. Their theory might be called the theory of 'separate but better off'-a theory that has been used before. A like argument was made in Buchanan v. Warley, 245 U.S. 60, 81, 38 S.Ct. 16, 20, 62 L.Ed. 149, in support of municipal segregation of residential areas; in District of Columbia v. John R. Thompson Co., 346 U.S. 100, 73 S.Ct. 1007, 97 L.Ed. 1480, in support of segregation in restaurants; in Watson v. Memphis, 373 U.S. 526, 83 S.Ct. 1314, 10 L.Ed.2d 529, in support of delayed integration of municipal parks. Indeed, the final argument of John W. Davis for South Carolina in Brown v. Board of Education, supra, ended with the words, 'The good is sometimes better than the best.'

The fact that Negro political leaders find advantage in this nearly solid Negro and Puerto Rican district is irrelevant to our problem. Rotten boroughs were long a curse of democratic processes. Racial boroughs are also at war with democratic standards.

What we have in the Seventeenth and Eighteenth Districts in Manhattan is comparable to the Electoral Register System which Britain introduced into India. That system gave a separate constituency to Sikhs, Muslims, Anglo-Indians, Europeans, and Indian Christians. ^[5] Religious minorities found comfort and safety in such an arrangement. A Muslim deputation made the following demand: ^[6]

'(1) That in the whole of India the Muslims number over 62 millions or between one-fifth and one-fourth of the total population;

'(2) that as their numbers exceed the entire population of any first-class European Power, except Russia, Muslims might justly claim adequate recognition as an important factor in the State;

'(3) that the representation hitherto accorded to them, almost entirely by nomination, had been inadequate to their requirements and had not always carried with it the approval of those whom the nominees were selected to represent; and

'(4) that while Muslims are a distinct community with additional interests of their own, which are not shared by other communities, no Muslim would ever be returned by the existing electoral bodies, unless he worked in sympathy with the Hindu majority in all matters of importance.' Lord Morley made the following reply: ^[7]

'The Muslims demand three things. I had the pleasure of receiving a deputation from them and I know very well what is in their minds. They demand an election of their own representatives to these councils in all the stages just as in Cyprus, where, I think, Muslims vote by themselves; they have nine votes and the non-Muslims have three or the other way about; so in Bohemia where the Germans vote alone and have their own register; therefore we are not without a precedent and a parellel for the idea of a separate register. Secondly, they want a number of seats in excess of their numerical strenght. These two demands we are quite ready and intend to meet in full.'

Hindus responded favorably. ^[8] The Joint Report of 1918 stated: ^[9]

'Some persons hold that for a people, such as they deem those of India to be, so divided by race, religion and caste as to be unable to consider the interests of any but their own section, a system of communal electorates and class representation is not merely inevitable but is actually best. They maintain that it evokes and applies the principle of democracy over the widest range over which it is actually alive at all, by appealing to the instincts which are strongest; and that we must hope to develop the finer, which are also at present the weaker instincts by using the forces that really count. According to this theory communal representation is an inevitable and even a healthy stage in the development of a non-political people.' As already noted, the Electoral Register System was not peculiar to British India. Other nations used it. ^[10] Lebanon today has a modified version: each of eight religious groups has electoral districts from which only a member of that faith can be chosen for the legislature. ^[11]

Racial electoral registers, like religious ones, have no place in a society that honors the Lincoln tradition-'of the people, by the people, for the people.' Here the individual is important, not his race, his creed, or his color. The principle of equality is at war with the notion that District A must be represented by a Negro, as it is with the notion that District B must be represented by a Caucasian, District C by a Jew, District D by a Catholic, and so on. Cf. Gray v. Sanders, 372 U.S. 368, 379, 83 S.Ct. 801, 807-808, 9 L.Ed.2d 821. The racial electoral register system weights votes along one racial line more heavily than it does other votes. That system, by whatever name it is called, is a divisive force in a community, emphasizing differences between candidates and voters that are irrelevant in the constitutional sense. Of course race, like religion, plays an important role in the choices which individual voters make from among various candidates. ^[12] But government has no business designing electoral districts along racial or religious lines. We held in Akins v. Texas, 325 U.S. 398, 403, 65 S.Ct. 1276, 1279, 89 L.Ed. 1692, and in Brown v. Allen, 344 U.S. 443, 471, 73 S.Ct. 397, 414-415, 97 L.Ed. 469, that courts in selecting juries need not-indeed should not-give each jury list the proportional racial complexion that the community has. If race is not a proper criterion for drawing a jury list, how can it be in designing an electoral district?

In Anderson v. Martin, 375 U.S. 399, 84 S.Ct. 454, we barred Louisiana from putting on a ballot opposite a Negro candidate's name the word, 'Negro,' as it was a device encouraging racial discrimination. When we said in that case that a State may not encourage its citizens 'to vote for a candidate solely on account of race,' id., 375 U.S. at 404, 84 S.Ct. at 456, I had assumed that we would hold a fortiori that no State could make an electoral district out of any racial bloc unless the electoral unit represented an actual neighborhood. Yet we violate that principle here.

When racial or religious lines are drawn by the State, the multiracial, multireligious communities that our Constitution seeks to weld together as one become separatist; antagonisms that relate to race or to religion rather than to political issues are generated; communities seek not the best representati e but the best racial or religious partisan. Since that system is at war with the democratic ideal, it should find no footing here.

'Separate but equal' and 'separate but better off' have no more place in voting districts than they have in schools, parks, railroad terminals, or any other facility serving the public.

Notes

1. Nor does the Constitution require a scheme for exact equality in districting, let alone a 'mathematically-based procedure for districting which produces contiguous districts nearly equal in population.' See Weaver and Hess, A Procedure for Nonpartisan Districting: Development of Computer Techniques, 73 Yale L.J. 288, 307 (1963).
2. An area extending from 89th Street to 95th Street, between Third Avenue and the East River, was left in the Eighteenth District. This area of 10,507 persons is less than 5% Negro and Puerto Rican. There is, however, a new low-cost public housing project (of the type in which the average Negro-Puerto Rican occupancy in Manhattan will be about 75%) which has been scheduled for construction in that area. Because of that project and the general southward push of the Negro and Puerto Rican population, the area south of 95th Street appears to be but a temporary buffer zone.
3. The closest intimation, though not on the precise issue, is contained in the following statement which he made in his opinion:
4. Adam Clayton Powell has represented the Eighteenth District in Congress since 1945.
5. Acharya, Indian Elections and Franchise (1937), p. 17:
6. Ahsan, Community Electorates in India (1934), pp. 6-7.
7. Id., at 11.
8. Id., at 12.
9. Id., at 16.
10. The constitution of modern Cyprus divides the electorate into the Greek community, the Turkish community, and religious communities. Constitution of Cyprus, Aug. 16, 1960, Pt. I, Art. 2(3). The legislature is allotted 70% to the Greek community and 30% to the Turkish. Id., Pt. IV, Art. 62(2). Each community elects a communal chamber that has legislative power over select matters, e.g., religion, education, personal status, etc. Id. Pt. V, Arts. 86, 87.
11. The 1927 Lebanese Constitution established a unicameral legislature. See II Patai, The Republic of Lebanon (1956), p. 533. The number of deputies now is 99. Statesman's Year-Book 1963-1964, p. 1222. Prior to that increase it had 66 members elected according to the following proportional division among religious groups: 20 Maronites; 26 Moslems, of whom 12 were Shi'ites; 7 Greek Orthodox; 4 Druses; 4 Greek Catholics; 3 Armenian Orthodox; 1 Armenian Catholic; 1 other religious minority. 17 Encyclopedia Americana (1963), p. 175. See I Khalil, The Arab States and the Arab League (1962), pp. 124, 133; Ziadeh, The Lebanese Elections, 14 Middle East J. 367 (1960).
12. See Dawidowicz and Goldstein, Politics in a Pluralistic Democracy (1963).