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October 2, 1970

Frederick J. CHRISTOPHER, Jr., Benton Cole, Salvatore Lo Dico, George C. Smith, and Raymond J. Meredith, Plaintiffs,
John N. MITCHELL, as Attorney General of the United States, and the New York City Board of Elections, consisting of James M. Power, Thomas Mallee, Maurice J. O'Rourke, and J. J. Duberstein, Defendants

Bazelon, Chief Judge, MacKinnon, Circuit Judge, and Bryant, District Judge. MacKinnon, Circuit Judge (concurring in part and dissenting in part).

The opinion of the court was delivered by: BAZELON

At issue in this case are the Voting Rights Act Amendments of 1970. *fn1" These provisions are reprinted in Appendix A of this opinion, but they may be briefly stated. First, the new law extends for five years the operation of section 4(a) of the Voting Rights Act of 1965, *fn2" the primary effect of which provision was to suspend the use of literacy tests in six southern states and part of a seventh state. *fn3" Second, it provides that the 50 per cent coverage formula of section 4(b), *fn4" which took as its base the 1964 presidential election, may also be computed from the 1968 presidential election figures. In addition, the 1970 Amendments add two new titles to the Voting Rights Act. Title II contains provisions which (1) suspend all voting "tests and devices" *fn5" in states not already covered by the Voting Rights Act as amended, and (2) abolish state durational residency requirements in presidential elections. Title III prohibits states from denying the vote on the basis of age to citizens eighteen years of age or older. *fn6"

 Plaintiffs are citizens of New York State, over twenty-one years of age, able to read and write the English language, and resident in their respective counties for more than three months. They are qualified to vote under the laws of the State *fn7" and are duly registered. They claim that enforcement of the Voting Rights Act as amended will dilute their votes in forthcoming elections. Accordingly, they seek a declaratory judgment that the Amendments are unconstitutional and an injunction restraining defendants -- the Attorney General of the United States and the New York City Board of Elections -- from enforcing the 1970 Amendments. Because plaintiffs seek to enjoin the enforcement of an Act of Congress, a statutory three-judge court was convened. 28 U.S.C. §§ 2282, 2284. Defendants moved for summary judgment on the merits with respect to plaintiffs' challenges to Titles II and III; they moved to dismiss those counts challenging Title I or, in the alternative, for summary judgment on the merits. *fn8" Plaintiffs cross-moved for summary judgment on all counts.

 We find that Congress did have the power to enact the challenged provisions of the Voting Rights Act Amendments of 1970 and therefore grant summary judgment for the defendants.

 Sections 4(a) and 4(b) of the Voting Rights Act of 1965 *fn9" suspended the use of any "test or device" *fn10" in any state or political subdivision

which (1) the Attorney General determines maintained on November 1, 1964, any test or device, and with respect to which (2) the Director of the Census determines that less than 50 per centum of the persons of voting age residing therein were registered on November 1, 1964, or that less than 50 per centum of such persons voted in the presidential election of November 1964. *fn11"

 The suspension was not absolute; a state or subdivision could escape it by proving in court

that no such test or device has been used during the [five] years preceding the filing of the action for the purpose or with the effect of denying or abridging the right to vote on account of race or color * * *. *fn12"

 These provisions were found to be an appropriate exercise of congressional power under section 2 of the Fifteenth Amendment in South Carolina v. Katzenbach, 383 U.S. 301, 86 S. Ct. 803, 15 L. Ed. 2d 769 (1966).

 The 1970 Amendments extend the provisions of the 1965 Act for five years. *fn13" In addition, they provide that the 1968 presidential election will now be taken as the base for the coverage formula, as well as the 1964 election. Therefore, if in any state or subdivision less than 50 per cent of the persons of voting age residing therein were registered on November 1, 1968, or if less than 50 per cent of such persons voted in the 1968 presidential election, then the section 4(a) prohibition of literacy tests and other devices shall apply.

 Standing and Ripeness

 Plaintiffs live in counties in New York State which were not reached by application of the old coverage formula. Three of them live in New York County, which they allege will be covered if the 50 per cent calculation is based upon voting and registration figures for the 1968 presidential election. Defendants reply that the Director of the Census has not yet made the determination required by section 4(b) of the Voting Rights Act as amended, because he is waiting for the 1970 census figures on New York to come in. *fn14" Therefore, defendants assert, plaintiffs' attack on Title I of the 1970 Amendments is premature.

 The issue raised is a troublesome one, but after careful reflection we have concluded that plaintiffs' challenge to the amendments to section 4 of the Voting Rights Act of 1965 does satisfy the requirements of standing and ripeness. First, it is clear that there is a danger that section 4(a) as amended will apply to New York County, whenever the determination is made by the Director of the Census. Plaintiffs' assertions to this effect were uncontested by defendants. This danger seems to us substantial enough to satisfy the conditions of standing in the narrow sense. *fn15" Second, it is very possible that the determination by the Census Director will be made before the approaching election in November. Not only may the 1970 census figures for New York be available before the election, but the Census Director may decide that he has a legal duty to make a determination on the best figures available to him before the election is held. *fn16" Third, to the extent that the Census Director delays as long as possible before making a determination prior to the election, judicial review of the statute in time to prevent irremediable harm to plaintiffs becomes difficult. *fn17" Finally, upon our view of the merits of the amendments to section 4, there is no reason for waiting for the issue to be presented in a more "concrete situation," *fn18" rather than on cross motions for summary judgment. All these considerations persuade us that in the exercise of the discretion required of us in injunctive and declaratory actions, *fn19" we may appropriately find this controversy ripe for adjudication.

 The Constitutionality of the Amendments to Section 4

 Section 1 of the Fifteenth Amendment provides: "The right of citizens of the United States to vote shall not be denied or abridged * * * by any State on account of race, color, or previous condition of servitude." Section 2 provides: "The Congress shall have power to enforce this article by appropriate legislation." The Court in South Carolina v. Katzenbach faced the argument that the Fifteenth Amendment permits only the judiciary to strike down state statutes and procedures -- that "to allow an exercise of this authority by Congress would be to rob the courts of their rightful constitutional role." *fn20" This argument was emphatically and unanimously rejected by the Court. *fn21"

By adding [§ 2], the Framers indicated that Congress was to be chiefly responsible for implementing the rights created in § 1. "It is the power of Congress which has been enlarged. Congress is authorized to enforce the prohibitions by appropriate legislation. Some legislation is contemplated to make the [Civil War] amendments fully effective." Ex parte State of Virginia, 100 U.S. 339, 345, 25 L. Ed. 676. *fn22"

 The measure of congressional power under the enforcement provision of the Fifteenth Amendment is "the same as in all cases concerning the express powers of Congress with relation to the reserved powers of the States." *fn23" The test, then, is that enunciated by Chief Justice Marshall in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421, 4 L. Ed. 579 (1819):

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

 The essential question for the Court, accordingly, was whether Congress had enacted a statute which was a rational means of effectuating the constitutional prohibition of racial discrimination in voting. *fn24" Given the history of discrimination in the use of voting tests in the South, the Court found ample reason to find that the congressional enactment was an appropriate means of protecting the right to vote. Most important, it was appropriate to tie coverage of the statute to the percentage turnout or registration for the 1964 election.

The formula eventually evolved to describe [the areas affected by the Act] was relevant to the problem of voting discrimination, and Congress was therefore entitled to infer a significant danger of the evil in the few remaining States and political subdivisions covered by § 4(b) of the Act. *fn25"

 There can be no doubt after South Carolina v. Katzenbach that Congress acted within its section 2 power in enacting the 1970 Amendments to section 4. If it was appropriate for Congress in 1965 to base coverage on a 50 per cent standard and the most recent presidential election, then plaintiffs have a heavy burden if they wish to persuade us that it is inappropriate for Congress to base coverage again on the most recent presidential election when, in 1970, it is extending the original Act for five years. Plaintiffs have shown no significant difference between the two elections. Nor do we read the Court's opinion in South Carolina v. Katzenbach as relying upon certain unique characteristics of the 1964 election. *fn26" It may be true, as plaintiffs claim, that New York County does not have a history of discrimination in the use of its literacy test. *fn27" Nevertheless,

[tests] and devices are relevant to voting discrimination because of their long history as a tool for perpetrating the evil; a low voting rate is pertinent for the obvious reason that widespread disenfranchisement must inevitably affect the number of actual voters. Accordingly, the coverage formula is rational in both practice and theory. *fn28"

 We uphold the 1970 Amendments to section 4 of the Voting Rights Act of 1965. *fn29"

 We turn now to the case which followed South Carolina v. Katzenbach by three months and which constitutes the most important opinion by the Supreme Court on the question of congressional power under the enforcement provisions of the Civil War Amendments. Katzenbach v. Morgan, 384 U.S. 641, 86 S. Ct. 1717, 16 L. Ed. 2d 828 (1966), was a declaratory judgment action brought by New York voters joined by the state attorney general to challenge the constitutionality of section 4(e) of the Voting Rights Act of 1965. *fn30" That section provided that no state could bar any person from voting solely on grounds of English illiteracy if that person could demonstrate that he had been educated in an American-flag school "in which the predominant classroom language was other than English." The sole practical ...

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