DOUGLAS, J., dissenting. 376 U.S. groups has electoral districts from which only a member of that iaith 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. 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, and in Brown v. Allen, 344 U. S. 443, 471, that courts in selecting juries need not-indeed should not-give each jury list the proportional racial complexion that the community 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 19631964, 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). 52 GOLDBERG, J., dissenting. has. If race is not a proper eriterion for drawing a jury list, how can it be in designing an electoral district? In Anderson v. Martin, 375 US. 399, 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., at 404, 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 representative 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. MR. JUSTICE GOLDBERG, with whom MR. JUSTICE DOUGLAS joins, dissenting. I fully agree with and join what my Brother DOUGLAS has written in dissent but wish to add these words by way of comment on the Court's opinion. The question for decision in this case is whether appellants have sustained their burden of proving that the boundaries of the Seventeenth and Eighteenth Congressional Districts of New York were purposefully drawn on racial lines. The Court resolves this question against appellants by accepting "the District Court's finding that GOLDBERG, J., dissenting. 376 U.S. 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." Ante, at 58. My difficulty with this conclusion is that the record does not support the Court's treatment of the District Court's finding. The District Court was a three-judge court and the three judges did not agree upon and, as a court, made no express findings of fact. Instead there were three separate and differing opinions. Judge Moore implied that racially segregated voting districts are constitutional absent a showing of serious under-representation or other specific harm to the individual complainants. 211 F. Supp. 460, 467-468. He also suggested that segregated voting districts could be constitutionally justified because they may enable persons of the same race or place of origin "to obtain representation in legislative bodies which otherwise would be denied to them." Id., at 467. Finally, Judge Moore intimated that factually segregated voting districts would be unconstitutional only where the legislature was "motivated or influenced" to create such districts. Ibid. To establish this motivation or influence complainants must introduce proof, and in this case no such proof was tendered by the appellants who, therefore, failed to make a case "upon the facts and the law." Id., at 468. Judge Moore did not in my view apply the proper constitutional standard. The Constitution, I strongly believe, proscribes state-sanctioned racial segregation in legislative districting as well as in voting and in public schools and facilities. E. g., Brown v. Board of Education, 347 U. S. 483; Gomillion v. Lightfoot, 364 U. S. 339; Johnson v. Virginia, 373 U. S. 61; Watson v. City of Memphis, 373 U. S. 526; Goss v. Board of Education, 373 U. S. 683; Anderson v. Martin, 375 U. S. 399. tainly in these areas the Fourteenth Amendment "nul Cer 52 GOLDBERG, J., dissenting. lifies sophisticated as well as simple-minded modes of discrimination." Cf. Lane v. Wilson, 307 U. S. 268, 275. This Court has declared state-sanctioned segregation invalid on the ground that, under the Constitution, distinctions by law between citizens because of their race, ancestry, color or religion "are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality." Hirabayashi v. United States, 320 U. S. 81, 100. Given this settled principle that statesanctioned racial segregation is unconstitutional per se, a showing of serious under-representation or other specific harm to individual complainants is irrelevant. I understand the Court's decisions since Brown v. Board of Education, supra, to hold that harm to the Nation as a whole and to whites and Negroes alike inheres in segregation. The Fourteenth Amendment commands equality, and racial segregation by law is inequality. Judge Moore, therefore, did not apply the proper constitutional standard. Furthermore, as I shall point out, Judge Moore also erred in holding that in any event appellants' proof was insufficient to establish a prima facie case of unconstitutional racial districting. Judge Feinberg disagreed both with Judge Moore's implication that segregated voting districts are constitutional absent serious under-representation and with the view that segregated districts could be constitutionally justified by alleged advantages to persons of a particular race or place of origin. Judge Feinberg stated that the "constitutional vice would be use by the legislature of an impermissible standard, and the harm to plaintiffs that need be shown is only that such a standard was used." 211 F. Supp., at 468. He then frankly acknowledged that: "The case is a closer one for me than the opinion of Judge Moore would indicate it is for him. Plain 720-509 O-65-9 GOLDBERG, J., dissenting. 376 U.S. tiffs did introduce evidence which might justify an inference that racial considerations motivated the 1961 reapportionment of congressional districts in Manhattan. However, other inferences are equally or more justifiable. Plaintiffs have a difficult burden to meet in attacking the constitutionality of this state statute." Id., at 469. Judge Feinberg, on this reasoning, cast his vote for Judge Moore's result on the ground that appellants failed to sustain the "difficult burden" of attacking the constitutionality of this statute: Even where such racially segregated districting results and complainants' evidence "might justify an inference that racial considerations motivated" the districting, still complainants fail to sustain their burden unless they also disprove every other permissible or reasonable purpose which the legislature might have had in mind. Judge Murphy, in his dissent, agreed with Judge Feinberg as to the applicable constitutional standard. But, on Judge Murphy's view of the record, the appellants carried their burden of proving that "the legislation was solely concerned with segregating white, and 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)"; that the legislation had effected "obvious segregation"; and that the statute constituted a "subtle exclusion" of Negroes from the Seventeenth and a "jamming in of colored and Puerto Ricans into the 18th or the kind of segregation that appeals to the intervenors." Id., at 473-475. Accordingly, Judge Murphy thought appellants had met their burden of proving segregation and, in the absence of any proof by the State or by intervenors, were entitled to a judgment declaring the statute unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. |