FRANKEL, District Judge
(dissenting):
Agreeing that the action is not barred by the Voting Rights Act and that plaintiffs have standing, I would reverse and hold the laws in question unconstitutional.
As perceived by the majority, the bland contention emerging from this “recipe for judicial perplexity” is whether “districting on racial lines is per se unconstitutional.” If that is the question, the dissent now launched is largely beside the point. With deference, however, I believe the court has misplaced the perplexities actually presented by overlooking the critical (and undisputed) facts.
The case is not about whether an awareness of race in drawing district lines is “per se unconstitutional.” The case concerns the drawing of district lines with a central and governing premise that a set number of districts must have a predetermined nonwhite majority of 65% or more in order to ensure nonwhite control in those districts. The case is one where no preexisting wrong was shown of such a character as to justify, or render congruent, a presumptively odious concept of a racial “critical mass” as a principle for the fashioning of electoral districts. Indeed, it is a case where no official is willing to accept, let alone to claim, responsibility for the requirement of 65% or over nonwhite. This is the case that compels me to vote for reversal.
I.
Critical facts, though discoverable from the court’s opinion, must be highlighted to make the points in this dissent.
When the United States Attorney General reviewed the State’s 1972 districting laws, he found them acceptable for the most part. As to “parts of the plans in Kings and New York Counties,” however, he found that the State had not met its “burden of proving that the submitted plans have neither the purpose nor the effect of abridging the right to vote because of race or color. . . . ” He “concluded that the proscribed effect may exist” in the unapproved parts of the plans. With respect to the Kings County Senate and Assembly plans, which concern us here, he said:
“. . . Senate district 18 appears to have an abnormally high minority concentration while adjoining minority neighborhoods are significantly diffused into surrounding districts. In the less populous proposed assembly districts, the minority population appears to be concentrated into districts 53, 54, 55 and 56, while minority neighborhoods adjoining those districts are diffused into a number of other districts. As with the congressional plan we know of no necessity for such configuration and believe other rational alternatives exist.”
Neither the Legislature nor the Executive of New York agreed with this appraisal of their legislation. But the pressures of time posed hard choices. June 17 was the first day for signing designating petitions for the primary. N.Y. Election Law § 149 — a, subd. 2. The petitions were to be filed with the Board of Elections by July 15. Id., subd. 4. The primary was scheduled for September 10. Laws of 1974, ch. 9.
In the face of this schedule, it was determined that the lines should be redrawn in a fashion that might obviate the Attorney General’s objections. The initial work of meeting the objections was undertaken by the Joint Legislative Committee on Reapportionment. Working with the Department of Justice, the Committee’s staff acquired the understanding that they must organize two more Senate and two more Assembly districts with substantial nonwhite majorities.
So far as can be told from the record before us, there was no semblance of an effort to take the asserted instances of undue “concentration” and improper “diffusion” and set them to rights by particular and principled revisions. Instead, in an atmosphere of hasty dickering, the Legislative Committee staff proceeded to redraw the lines under a controlling mandate to see that seven Assembly and three Senate districts had non white majorities of 65% or greater. The 65% figure was taken on the explicit premise that anything less (given lower rates of voter registration and turnout) would render uncertain the power of the non white majority to control election results in those districts. The 65% minimum was pressed in total disregard of whether it might be a necessary or suitable means to correct any improper “concentration” or “diffusion.”
While it was never said explicitly (a matter of some consequence for the decision herein), the Committee’s staff director “got the feeling” that, to avoid disapproval, the 1972 Assembly district in which the Hasidic community was entirely embraced at the time would require revision to raise its nonwhite population from 61.5% to 65%. As he described the exchanges with Department of Justice personnel, the upward revision from 61.5% resulted from conversations and inferences of the following character:
“I said how much higher do you have to go?
“Is 70 percent all right?
“They didn’t say yes or no, but they indicated it is more in line with the way we think in order to effect the possibility of a minority candidate being elected within that district.
“I suggested 65 percent. It came out at that time that is a figure used by the NAACP in numerous briefs and other documents.
“I got the feeling, and I cannot vouch for this as a matter of having been specifically said, but I left that meeting indicating that 65 percent would be probably an approved figure.”
The upshot of the talks, the director said, was: “I thought it was logical for me to assume anything under 65 would not be acceptable.”
Following the “feelings” and assumptions thus derived, the Joint Committee made the district line changes assailed in this case; “block by block and census tract by census tract, [they] colored in in various proportions the Puerto Rican population, and the black population, all over the area.” The former district lines were thus revised by adding blocks or sections here and there, subtracting and shifting others, all with an eye single upon the racial composition of the bits and pieces being moved. The criteria that had been followed in the 1972 enactments — -the interests, for example, in communities and natural boundaries— were not directly altered, but were subordinated where necessary to the central objective of racial shifts to achieve seemingly required percentages. Bills embodying these changes were introduced in a special session of the New York State Legislature and enacted on May 29 and 30, 1974. Laws of 1974, chs. 588, 589, 590, 591, and 599. There does not appear to have been any revision by the Legislature of the work, or of the underlying premises, of the Joint Committee.
The new laws were submitted for the Attorney General’s approval on May 31, 1974, and declared unobjectionable by him on July 1, 1974. The phrasing of his response is interesting and significant. He said he “does not interpose any objection. . . . ” He took pains to spell out at length his disclaimer of responsibility, or even support, for the 65% idea or any other semblance of a racial quota or minimum supposed necessary for effective control.
Far from seeking to justify the racially determined changes of 1974 as essential or proper remedies for anything, the Attorney General assures us that “nothing supports the proposition that the plan upon which the State decided was at the insistence of the United States.” That statement in a brief merely reaffirms what was said at greater length when the Department of Justice announced its non-objection to the 1974 redistricting:
“In assessing these arguments [against the 1974 lines], two basic principles should be kept in mind. First, it is not the function or authority of the Attorney General under Section 5 to devise redistricting plans, or for that matter to dictate to the State of New York specific actions, steps or lines with respect to its own redistricting plan. The only function of the Attorney General under Section 5 is to evaluate a voting change, such as that en compassed in the instant submission, once it has been adopted by the state and submitted for the Attorney General’s review, and to determine the limited question of whether the purpose or effect of the change in question is to deny or abridge the right to vote on account of race or color. If no such abridgment or denial exists, the Attorney General must not object to the plan, regardless of the merits or demerits of the plan in other regards, including state, local, and partisan political ones. If an abridgment or denial does exist — as we found in the first submission by New York — the .Attorney General must object, stating his reasons, but not drawing a counter plan or commanding any particular state response.”
Not only did the Attorney General pointedly disavow the “function . . . to devise redistricting plans”; he made plain in the same decision his position that concern for the rights of white voters (except perhaps for those with Spanish surnames) was actually no part of his business under the Voting Rights Act. The Civil Rights Division, speaking for him, said:
“In contrast to the foregoing conclusion regarding Puerto Ricans [‘that some Spanish-surnamed Americans are covered by federal statutes which protect the rights of non-white citizens’], there was nothing revealed by our review of the circumstances surrounding the adoption of the Fifteenth Amendment, the passage of the Voting Rights Act and its Amendments, the language of those provisions, their legislative history, or the formula used for bringing states and political subdivisions under the Act which, indicates that Hasidic Jews or persons of Irish, Polish or Italian descent are within the scope of the special protections defined by the Congress in the Voting Rights Act. Nor has material supporting that view been brought to our attention by others. We are forced to conclude, therefore, that given what we now know of relevant precedent, these groups are not among those whose rights the Attorney General is commanded and empowered to protect in his consideration of a submission under Section 5 of the Voting Rights Act. We make no comment, of course, on the relative merits of this congressionally defined scope of coverage and nothing we say here should be interpreted as affecting any other rights accruing to these parties from other sources.”
Thus, the problem presented here is one the Attorney General did not even consider. Correctly or not, he deemed it beyond the bounds of his concern to notice whether the rights of white voters mig]it suffer invasion by the districting plans he was asked to review.
II.
The law governing this case begins with the fundamental proposition that classification by race or ethnic origin is “odious” in our society, Hirabayashi v. United States, 320 U.S. 81, 100, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943), to be tolerated, if at all, only for rare and compelling necessities, see Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944), and perhaps nowhere more repulsive than in relation to the “right to vote freely . . . [which] is of the essence of a democratic society,” Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 1378, 12 L.Ed.2d 506 (1964). The complexities of life have been thought to compel occasional departures, slight always and gingerly, from the rule of governmental color-blindness. But the idea of quotas, deeply suspect anywhere, is likely never to find root, while we preserve our fundamental character as a nation, in the organization of electoral constituencies. The idea of a polity, deliberately organized as a matter of state policy, into districts whose people are proportioned according to whether they are white, black, yellow — and, let us not blink, “Hungarians . . ., Poles . ., Germans . . ., Portuguese . . ., Mexicans [or] the numerous minority groups in New York, and so on through the whole gamut of racial and religious concentrations in various cities”, Hughes v. Superior Court, 339 U.S. 460, 464, 70 S.Ct. 718, 721, 94 L.Ed. 985 (1950) — is at war with our bedrock concepts of individual worth and integrity. But that is essentially the concept followed in drawing the districts involved in this case.
The racial quota or 65% minimum employed for districting in this case was held valid in the district court “to correct a wrong” and is sustained again here as “corrective action.” There are two defects in this position, each independently sufficient to require reversal:
(1) The attack is upon legislation, but neither the legislature nor any responsible official anywhere purports to have found the racial quota either necessary or even appropriate to correct the supposed wrongs.
(2) Whatever an official could have said, the record before us reveals not even a reasonable basis, let alone a compelling necessity, to justify a scheme of non white control (and white subordination) through a predetermined minimum of 65% per selected district.
(1) Neither the district court nor this court has “found” the 65% rule suited as a remedy for the unsurmounted objections of the Attorney General to the 1972 lines. Nobody else has made such a finding either. But “corrective action,” surely not least when it takes the form of racial criteria for legislation, must be related to the evil or disorder to be cured; “the means chosen to implement the compelling interest should be reasonably related to the desired end.” Associated General Contractors v. Altshuler, 490 F.2d 9, 18 (1st Cir. 1973), cert. denied, 416 U.S. 957, 94 S.Ct. 1971, 40 L.Ed.2d 307 (1974); cf. Otero v. New York City Housing Authority, 484 F.2d 1122, 1134 (2d Cir. 1973); McLaughlin v. Florida, 379 U.S. 184, 193, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964); Brooks v. Beto, 366 F.2d 1, 12 (5th Cir. 1966); United States v. Jefferson County Bd. of Educ., 380 F.2d 385, 390 (5th Cir.), cert. denied sub nom. Caddo Parish School Bd. v. United States, 389 U.S. 840, 88 S.Ct. 67, 19 L.Ed.2d 103 (1967).
Far from finding or claiming such a remedial function for the questioned district lines, the authors of the legislation earnestly deny the need for it. The State, as its brief reminds us (p. 3), drew the 1974 lines only “[t]o satisfy the demands of the United States Attorney General. . . . ” It did this, the same brief stresses (p. 15), though it “does not believe that the 1972 legislative . . . redistricting statutes produced a racially discriminatory effect as charged by the Department of Justice.
As for the Department of Justice, it did, of course, rule as an antecedent of the 1974 redistricting that the State had not met its “burden of proving that the submitted [1972] plans have neither the purpose nor the effect of abridging the right to vote because of race or color.” We need not conjure at this time with the question of how far this “failure of proof” may be deemed, in the words of the Intervenors (N.A.A.C.P. and others), a “decision that the 1972 lines were discriminatory.” Treating it as such, the critical point remains that the Attorney General of the United States utterly disclaims approval, let alone authority, of the 65% mandate.
Thus, the majority errs, I think, when it says the State Legislature “was drawing district lines in conformity with standards of the Attorney General of the United States. ...”
In this setting, where nobody professes to have determined that the quota requirement was necessary or proper as a remedy for supposed wrongs, it is erroneous for this or any court to validate the arrangement as “corrective action.” This would be so even if, contrary to the view tendered later in this opinion, such a species of remedy might somehow survive constitutional scrutiny. It is clearly true where no one purports to have fashioned the remedy to repair, aptly and carefully, the supposed evil it addressed.
It is not the court’s proper business to decide whether we might, as New York legislators, have found persuasive a course of reasoning repudiated by those elected to write the laws of New York. The repudiation is decisive for us. It is at least decisive where no other authority (specifically, the United States Attorney General) with a voice in the matter sustains the “corrective action” premise. Strictly and narrowly speaking, which may be the best way to speak for most constitutional law matters, we are neither required nor entitled to determine whether the 1974 districting laws might be sustainable upon a foundation the Legislature did not purport even to consider.
Where vital constitutional rights are at stake, asserted statutory invasions are not justifiable by supposed legislative purposes that are not reasonably discoverable from what the legislature has done. Eisenstadt v. Baird, 405 U.S. 438, 447-452, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972). A purpose never considered and adopted by the authoritative organs of the state’s power cannot supply a “rational basis” (or, of course, any meaningful basis at all) for a state enactment. Sherbert v. Verner, 374 U.S. 398, 407, 83 5. Ct. 1790, 10 L.Ed.2d 965 (1963); see also Gomillion v. Lightfoot, 364 U.S. 339, 342, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960); cf. Cantwell v. Connecticut, 310 U.S. 296, 307-308, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). A fortiori, a ground deliberately rejected by the State Legislature cannot sustain a law which, but for that ground, violates the fourteenth and fifteenth amendments.
That is the instant case. There is no authoritative claim that the racial 65% minimum majority applied to create the disputed districts could be justified by compelling need. There is not even an assertion by any responsible official of a rational basis. Because this is so, we should probably end this case by striking down the laws and “remanding” to the New York Legislature for focused, rational, lawful drawing of district lines. Cf. United States v. Bass, 404 U.S. 336, 349-350, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971); Bickel & Wellington, Legislative Purpose and the Judicial Process, 71 Harv.L.Rev. 1 (1957).
(2) Beyond the things the State Legislature and the United States Attorney General have said and left unsaid the record before us presents no ground for sustaining the a priori judgment that some districts must have at least a 65% nonwhite majority where the county is 35.1% nonwhite and the State 13% nonwhite. I say this on “the record before us” to leave room for some conceivable record where a predetermined racial quota might be found constitutional. One may doubt profoundly that there will ever be such a case. Suffice it to say for now that the case before us is not it.
As reflected in the precedents reviewed by Judge Oakes, there is great constitutional force in the premise that the “[fjramers of voting districts are required to be color blind.” Ince v. Rockefeller, 290 F.Supp. 878, 884 (S.D.N.Y.1968). See, e. g., White v. Regester, 412 U.S. 755, 765-770, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973); Whitcomb v. Chavis, 403 U.S. 124, 149-160, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971); Gomillion v. Light-foot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960). What should be still clearer is that the fourteenth and fifteenth amendments forbid the fashioning of electoral districts “so as to make the voice of one racial group weak or strong, as the case may be.” Whitcomb v. Chavis, 403 U.S. 124, 176-177, 91 S.Ct. 1858, 1887, 29 L.Ed.2d 363 (1971) (Douglas, J., concurring and dissenting).
Racial or credal “proportional representation” offends against the most fundamental tenets of our constitutional scheme. Cassell v. Texas, 339 U.S. 282, 286-287, 70 S.Ct. 629, 94 L.Ed. 839 (1950); Hughes v. Superior Court, 339 U.S. 460, 70 S.Ct. 718, 94 L.Ed. 985 (1950); Akins v. Texas, 325 U.S. 398, 403, 65 S.Ct. 1276, 89 L.Ed. 1692 (1945); Shelley v. Kraemer, 334 U.S. 1, 22, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). Once we start racial — or religious or ethnic — quotas for voting purposes, we forsake the anchor of governmental neutrality that has kept us secure despite the sometimes raging storms of group conflict we have had to weather. Polyglot and unmelted as we are, we have been blessed with recurrent demonstrations of our ability to erase racial stigmatization as the sole test for selecting leaders and conferring power. We disgraced ourselves on the subject before we tardily elected a Catholic President. Our most tragic dilemma has been, certainly, the persecution of nonwhite people, and the degrading aspects of that are far from ended. But there is hope in the evidence of improvement. If there is any religious majority, one need not belong to it to be elected. As for skin color, appellants’ papers call to our attention that 13 of our cities with populations exceeding 50,000 have nonwhite mayors although seven of those cities have white majorities and only two have non white majorities exceeding 65%. Notable among the omissions from this compilation is Los Angeles, which, with a population approximately 18% black, has had a black mayor since 1973.
“Racial electoral registers [dividing electoral districts along racial lines like the racial and religious lines known historically or currently in India, Lebanon, and elsewhere], 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. But government has no business designing electoral districts along racial or religious lines.”
Wright v. Rockefeller, 376 U.S. 52, 66, 84 S.Ct. 603, 611, 11 L.Ed.2d 512 (1964) (Douglas, J., dissenting) (footnote omitted).
The mixed story of racial troubles and conflicts is a long one. But our concern is not with sociology or politics or history as such. It should be enough for us that fixed principles of constitutional law normally bar classifications by race and that we have been shown nothing whatsoever to justify the use of a 65% minimum majority for any race in any district as an advance prescription for districting.
The flaws in today’s decision, as I see them, may become more clearly visible if we (a) consider generally how valid districting should proceed and (b) note some of the arguments offered as justifications for today’s result in the opinion of the court, (a) To begin at the beginning, before problems of alleged illegality may appear, lawfully drawn státe legislative districts presumably reflect some agreed assumptions, though the nature of these assumptions may not yet be a matter of absolute clarity. See Cousins v. City Council of City of Chicago, 503 F.2d 912, 917, 919 (7th Cir. 1974) (“legitimate or nonjusticiable concerns” may sustain districting decisions). It may be supposed that the lines ought to follow reasonably straight paths, swerving for geographic or community or political subdivision boundaries where necessary or rational, see Mahan v. Howell, 410 U.S. 315, 325, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973); Gaffney v. Cummings, 412 U.S. 735, 742, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973), embracing substantially equal numbers of people, and forming perimeters as simple, regular, and “couth,” cf. Gomillion v. Lightfoot, 364 U.S. 339, 340, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960), as good faith and neutrality will allow. Most fundamentally for this case, the drawers of the lines must not be encapsulating or fencing out people of particular races or religions or ancestries, whether to maximize or minimize the strength of any racial or religious or ethnic groups.
If people have been forced in or out because of race, then, of course, the fences must be torn down and the districts in this manner redrawn lawfully. That is, the forbidden usé of race must be overcome by some condign remedy. But what is the nature of the pre-existing wrong that could make it condign or permissible to set up a minimum quota of 65% or any percentage for one race or group of races? This record and the majority opinion will be searched in vain for an answer to this question.
Let us consider Kings County, the focus of our concern, and try to fathom better what is involved. The nonwhite population of the County is 35.1%. Were the non white people spread evenly through the County, orderly and symmetrical districts could well include none with a non white majority. Cf. Cousins v. City Council of City of Chicago, 503 F.2d 912, 921 (7th Cir. 1974).
Add another reality — that racial distribution is not even through the County. The a priori 65% figure could not serve, except by some wild accident not suggested to have happened in this case, to reflect the racial distribution in any fair, rational, racially neutral sense. Instead, it would ensure (as it did in this case) that an arbitrarily prescribed number of legislative districts must be gerrymandered to meet the prescription. It is, of course, conceivable that some particular district or districts, fairly and lawfully drawn, could come out with a population 65% (or any percent) nonwhite. But there is no faint suggestion that this is what happened here. There is no rational explanation of any kind for the 65% figure in any district because the figure was taken in advance, as a racial quota, rather than resulting from fair apportionment on constitutionally permissible principles. Cf. Note, Compensatory Racial Reapportionment, 25 Stan. L. Rev. 84, 99-100 (1972).
(b) The majority sees in this record “no showing . . . that the effect of the New York legislature’s drawing the 1974 district lines as it did was invidiously to cancel out or minimize the voting strength of white voters in Kings County.” Whatever may be true of “Kings County” as a whole, there is precisely an impermissible cancellation or minimization if the massing of 65% or greater non white majorities in the districts that concern us cannot be squared with the Constitution.
The majority goes on to say:
“Even considering that the assembly and senate districts here in question would now necessarily elect nonwhite assemblymen and senators, an assumption we by no means may make, there would be no disproportionately nonwhite representation in either house.” (Footnotes omitted.)
Like the majority, I am prepared to repudiate the assumption. But the statement by the majority of why it makes no difference seems to me to extend the line of fallacious reasoning. What does it mean, for purposes of constitutional law, to speak of “disproportionately nonwhite representation”? Is that supposed evil suffered by Massachusetts, whose nonwhite Senator is returned by an electorate less than three percent nonwhite? The point, if only in passing, is that our Constitution forbids us to reason from notions about what kind of racial composition is “proportionate” or “disproportionate” in our legislatures.
The clear statement of the majority’s different view comes in its footnote to the sentence last quoted. We are told there:
“The population of Kings County is 64.9 per cent white, 24.7 per cent black and 10.4 per cent Puerto Rican. Memorandum of Decision, United States Dep’t of Justice, Nos. V6541 — 47, July 1, 1974, at 13. For purposes of the Voting Rights Act the Puerto Rican population is considered nonwhite. [But see note 4, supra.] Id. at 10-11. Thus Kings County is 35.1 per cent nonwhite. Under the 1972 districting, one out of the ten senate districts contained a substantial nonwhite majority population. Under the amended 1974 plan three of the districts, or 30 per cent, contain substantial nonwhite population majorities — proportionately slightly less minority concentration districts than the percentage of nonwhite voters in the county. Interim Report of The Joint Committee on Reapportionment, supra, note 8, at 5. Of the 22 assembly districts in Kings County six had over 60 per cent nonwhite population and one over 50 per cent nonwhite population under the 1972 plan. The 1974 plan created five districts having over 75 per cent nonwhite population and two of over 65 per cent. Thus seven or 31.4 per cent of the districts contain a majority of nonwhite population, again less than the percentage of the nonwhite population in the county. Id. at 7 — 8.
Here, if with unflagging deference, I find gaps in sheer logic as well as unacceptable constitutional doctrine. As I have mentioned earlier, a minority of any kind in a county need not be a majority in any district at all. See Cousins v. City Council of City of Chicago, 466 F.2d 830, 842-843 (7th Cir.), cert. denied, 409 U.S. 893, 93 S.Ct. 85, 34 L.Ed.2d 151 (1972). There is no ground in logic or law for translating the percentage relationship of a minority to the whole county population into a percentage of districts over which that minority should have majority control, let alone majority control by some prescribed “effective” margin.
There are unbearable and absurd implications in the notion of “proportionality” between racial or ethnic population percentages and percentages of districts controlled by different racial or ethnic groups. Beyond the limited skin-color divisions, some 65% white and 35% “nonwhite,” Kings County has 10.7% Italian immigrants or people with at least one parent who immigrated from Italy, some unknown additional percentage of Italian ancestry, a similar figure of 5.9% plus unknown additional Russian, 35% Roman Catholic, 4.7% recently immigrated Polish, 32.5% Protestant, 10.4% Puerto Rican, 1.7% recently from Austria, 1.7% recently from Ireland (plus many more of Irish ancestry), 30.3% Jewish, 2.2% “other” religions, 1.3% recent German immigrants, plus a dizzying mass of others “whose lineage is so diverse as to defy ethnic labels.” De Funis v. Odegaard, 416 U.S. 312, 332 (1974) (Douglas, J., dissenting). How do we figure out the percentage of districts to be controlled by German Catholics, Russian Jews, black as against white Protestants, etc.? The short answer is, of course, that we don’t. But the apparent “test” in today’s majority opinion (31.4% nonwhite districts a “good” figure because less than the 35.1% nonwhite Kings County population) implies that perhaps we should. If that is not the implication, the point of the majority’s footnote 21 is not discernible. If that is the implication, it is a matter specially and particularly opposed in this dissent.
This is, in sum, a case of racial quotas that are evil and dangerous because there is no semblance of justification for them. I would, therefore, reverse and hold the laws in question unconstitutional.
. Brief for Appellee Saxbe, p. 22.
. Department of Justice, Civil Rights Division, Memorandum of Decision, July 1, 1974, p. 17.
. Id. pp. 11-12.
. Among the dubieties in this case is the insistent concern for “nonwhite” majorities that embrace both blacks and Puerto Ricans. Whatever inspires the United States Attorney General, a court sitting in New York may notice the artificiality of the merger. It may be true that in our rich, and sometimes bitter, diversities, sundry whites, of various stripes, are frequently at odds with Puerto Ricans. But conflicts between blacks and Puerto Ricans are familiar. See Gaby, “Newark: The Promise of Survival,” The Nation, December 14, 1974, at 619, 621. The latter have been heard in the context of this very case to resist being submerged by black majorities or pluralities to make “nonwhite” majorities; they seek instead a Bronx Congressional district in which Puerto Ricans are a majority. “Puerto Rican spokesmen,” it was noted by the Department of Justice, complained of one Congressional district containing 53% blacks, 19.2% Puerto Ricans, and a combined “nonwhite majority” of 72.2%. Civil Rights Division, Memorandum of Decision, July 1, 1974, p. 14. Likewise, they assailed another district which had 45.1% black, 18.2% Puerto Rican and a resulting “nonwhite majority” of 63.3%. “They maintain[ed] that the plan [had] the effect of splintering off substantial numbers of Puerto Ricans into [the 2 districts] and that a district could be created in which Puerto Ricans are a majority.” Id. If these are not cheerful subjects, they do remind us of the thorns, political as well as constitutional, into which we plunge when we consider racial quotas for voting districts.
. Letter dated April 1, 1974, from Assistant Attorney General J. Stanley Pottinger to George D. Zuckerman, Assistant Attorney General, State of New York, at 1.
. Brief for Intervenors-Appellees, N.A.A.C.P. et al., p. 4.
. See N.Y. Times, Nov. 27, 1974, p. 1, col. 1.
. The figures cited are mostly from the 1970 U.S. Census. See also Council of Churches of the City of New York, “Protestant and Orthodox Church Directory,” (1972), p. 81. The exact figures are, in any event, of no consequence. The point is, of course, the unsortable welter of multiform minorities.