430 U.S. 144 (1977)
Kings County, New York, together with New York and Bronx Counties, became subject to sections 4 and 5 of the Voting Rights Act of 1965 after the Attorney General determined that a literacy test was used there as of November 1, 1968, and the Director of the Census determined that fewer than 50 percent of voting-age residents voted in the 1968 presidential election.1 The State of New York unsuccessfully litigated to obtain an exemption from the Act. On January 31, 1974, the State submitted its 1972 reapportionment statute for congressional, state senate, and state assembly seats in these counties to the Attorney General.2 Submissions to the Attorney General asserted that voting was racially polarized and that district lines diluted nonwhite voting strength. On April 1, 1974, the Attorney General objected to the plan as to districts in Kings County covering the Bedford-Stuyvesant area, finding that the State had not met its burden to demonstrate the absence of discriminatory purpose or effect.3
The State then submitted a revised plan on May 31, 1974. Under the 1972 plan, Kings County had three state senate districts with nonwhite majorities of approximately 91 percent, 61 percent, and 53 percent; the revised plan again had three such districts but adjusted all three to between 70 percent and 75 percent nonwhite.4 Both plans provided seven state assembly districts with nonwhite majorities, but the revised plan raised the two smallest from approximately 52 percent, 61 percent, and 76 percent to 65 percent and 67.5 percent while lowering the two largest from over 90 percent to between 80 percent and 90 percent.5 The legislative committee report stated that the changes were made to overcome Justice Department objections by creating more substantial nonwhite majorities.6 These revisions split the Williamsburgh area, home to about 30,000 Hasidic Jews, which had been contained in one assembly district that was 61 percent nonwhite and one senate district that was 37 percent nonwhite under the 1972 plan; a staff member testified that officials sought a 65 percent nonwhite figure in the assembly district in which the Hasidic community was located and reassigned portions of the white population, including part of the Hasidic community, block by block to reach that target.7
Shortly after the revised plan was submitted, petitioners sued on behalf of the Hasidic Jewish community of Williamsburgh, alleging that the plan diluted the value of each plaintiff's franchise by halving its effectiveness through assignment to districts solely on the basis of race in violation of the Fourteenth and Fifteenth Amendments.8 Petitioners sought an injunction against enforcement of the 1974 plan and a declaratory judgment regarding the Attorney General's standards.9 On June 20, 1974, the District Court held a hearing on the motion for a preliminary injunction. On July 1, 1974, the Attorney General informed the State that he did not object to the revised plan. The District Court granted motions to dismiss the complaint. A divided Court of Appeals affirmed.10
The Supreme Court granted certiorari in 1975.11
Whether the State of New York's use of racial criteria in its 1974 reapportionment plan for Kings County to secure Attorney General approval under section 5 of the Voting Rights Act violated the Fourteenth or Fifteenth Amendment?12
The Constitution does not prevent a State subject to the Voting Rights Act from deliberately creating or preserving black majorities in particular districts to ensure compliance with § 5 of the Voting Rights Act.13 Section 5 and its authorization for racial redistricting where appropriate to avoid abridging the right to vote on account of race or color are constitutional.14 Contrary to petitioners' first argument, neither the Fourteenth nor the Fifteenth Amendment mandates any per se rule against using racial factors in districting and apportionment.15
No. The established facts show that the State revised its 1972 plan after the Attorney General objected to districts in Kings County covering the Bedford-Stuyvesant area.16 The State adjusted nonwhite majorities to between 70 and 75 percent in senate districts.17 It increased some assembly districts to 65 and 67.5 percent nonwhite to meet the nonretrogression principle under the Voting Rights Act.18 This use of racial criteria was to comply with § 5 and secure approval, as permitted by the rule from Beer and City of Richmond.19
The plan left white majorities in approximately 70 percent of districts in a county that was 65 percent white, so white voting strength was not minimized.20
The State of New York's use of racial criteria in the 1974 reapportionment plan did not violate the Fourteenth or Fifteenth Amendment.21
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Justice Brennan joined Parts I, II, and III of Mr. Justice White's opinion.22 He emphasized that the Voting Rights Act legitimates the use of overt numerical racial devices in electoral redistricting by providing a carefully conceived remedial scheme.23 The participation of the Attorney General largely relieves the judiciary of the need to grapple with the difficulties of distinguishing benign from malign discrimination, as the Attorney General is constituted champion of the interests of minority voters.24
The history of the Voting Rights Act provides reassurance that the congressional decision to authorize race-oriented remedies was the product of substantial and careful deliberations following voluminous legislative consideration.25 Brennan stressed that the Act minimizes objections to preferential treatment by focusing on jurisdictions whose prior practices exhibited the purpose or effect of infringing the right to vote on account of race, thereby triggering section 4 of the Act, and by the obvious remedial nature of the Act enacted by Congress.26
Joined by Justice Powell
Justice Stewart concurred in the judgment.27 He noted that petitioners made no showing that a racial criterion was used as a basis for denying them their right to vote in contravention of the Fifteenth Amendment.28 Petitioners made no showing that the redistricting scheme was employed as part of a contrivance to segregate.29 They also made no showing that it was used to minimize or cancel out the voting strength of a minority class or interest. Nor did they show that it otherwise impaired or burdened the opportunity of affected persons to participate in the political process.30
Under the Fourteenth Amendment, the question is whether the reapportionment plan represents purposeful discrimination against white voters. The record does not support a finding that the redistricting plan undervalued the political power of white voters relative to their numbers in Kings County.31 The clear purpose with which the New York Legislature acted forecloses any finding that it acted with the invidious purpose of discriminating against white voters. The legislature acted in response to the position of the United States Department of Justice under the Voting Rights Act.32
Whether the deliberate creation of districts with nonwhite majorities of approximately 65 percent through specific numerical targets in redistricting is constitutionally permissible when done to comply with the Voting Rights Act?33
In the process of drawing black majority districts to comply with § 5, the State must decide how substantial those majorities must be to satisfy the Voting Rights Act.34 A reapportionment cannot violate the Fourteenth or Fifteenth Amendment merely because a State uses specific numerical quotas in establishing a certain number of black majority districts.35
Yes. The facts establish that the revised plan used a 65 percent nonwhite target to ensure nonwhite majorities of eligible voters.36 This accounted for differences in registration and turnout between nonwhite and white populations.37 The target was reasonably related to the nonretrogression principle.38 The Attorney General's position that substantial majorities in the vicinity of 65 percent would be required was authorized under the Act.39 The State acceded to it without doing more than necessary under the nonretrogression principle.40
The deliberate creation of districts with nonwhite majorities of approximately 65 percent through specific numerical targets is constitutionally permissible when done to comply with the Voting Rights Act.41
Related opinions on this issue
Chief Justice Burger dissented.42 He argued that the undisputed testimony shows that the 65 percent figure was viewed by the legislative reapportionment committee as so firm a criterion that even a fractional deviation was deemed impermissible. This cannot be characterized otherwise than a strict quota approach.43 It casts doubt on the clear-cut principles established in Gomillion v. Lightfoot.44
Burger found no indication whatever that use of this rigid figure was in any way related, much less necessary, to fulfilling the State's obligation under the Voting Rights Act as defined in Beer.45 The record is devoid of any evidence that the 65 percent figure was a reasoned response to the problem of past discrimination. Instead the legislature mechanically adhered to a plan designed to maintain without tolerance for even a 1.6 percent deviation a nonwhite population of 65 percent within several of the new districts.46
Whether petitioners as white voters in the affected Hasidic community demonstrated that the 1974 revisions increased nonwhite voting strength beyond 1966 levels or otherwise violated constitutional standards?47
To be successful in their constitutional challenge to the racial criteria used in New York's revised plan, petitioners must show at a minimum that minority voting strength was increased under the 1974 plan in comparison with the 1966 apportionment. Otherwise the challenge amounts to a constitutional attack on compliance with the statutory rule of nonretrogression.48
No. Petitioners have not shown or offered to prove that New York did more than the Attorney General was authorized to require under the nonretrogression principle of Beer.49 There is no evidence in the record regarding nonwhite voting strength under the 1966 apportionment. The creation of substantial nonwhite majorities was therefore reasonably related to maintaining nonwhite voting strength. The percentage of such districts was less than the percentage of nonwhites in the county.50
Petitioners as white voters in the affected Hasidic community did not demonstrate that the 1974 revisions increased nonwhite voting strength beyond 1966 levels or otherwise violated constitutional standards.51
Related opinions on this issue
Justice Marshall dissented in part.52 He contended that Part III of the plurality opinion is singularly out of step with the rationale of Beer and may signal an erosion of that case decided only last Term.53 The rationale of Beer makes clear that the proportionality of nonwhite districts to the percentage of nonwhites in the county has absolutely no relation to the question of whether or not the Voting Rights Act was complied with.54
The proportionality rationale was embraced by Justice White's dissent in Beer and was rejected by the Court.55 Marshall noted that the sole reason that New York, Bronx, and Kings Counties were brought under the Voting Rights Act was that ballots had been prepared only in English and not in Spanish. This was held to be a discriminatory test or device given the large Puerto Rican population.56