The Supreme Court ruled yesterday that a state seeking to end discrimination in voting can take race or color into account when it reapportions legislative districts.
The court upheld a 1974 New York State reappoinment order for 10 state legislative districts in Kings County (Brooklyn) in which race was the only criterion.
A lawsuit against the order had been brought by Hasidic Jews, an orthodox sect concentrated in Brooklyn's Williamsburg section. The order fragmented the voting power of 30,000 Hasidim in order to increase the voting power mainly of blacks with whom they coexist, often in racial tension.
With Justice Thurgood Marshall anstaining, the court decided the issue by a 7-to-1 vote, although neither of two reasons given for the ruling was able to command a majority of five.
Four justices said the Constitution permits a state to use racial criteria to comply with the Voting Rights Act amendments of 1970, which extended to parts of some Northern states the 1965 law that enfranchised thousands of blacks in the South.
The amendaments restrain a state from implementing a redistricting plan until either the U.S. District Court for the Distric of Columbia or the Attorney General declares that the plan "does not have the purpose and will not have the effect of abridging the right to vote on account of race or color . . ."
There other justices said the New York plan was permissible under the 14th and 15th Amendments, which provide for equal protection of the laws and forbid denial of the right to vote "on account of race, color or previus condition of servitude."
In an opinion for the court, Justice Byron R. White said the amendments permit a state to realign voting districts so as to make the number that have a nonwhite majority approximate the percentage of nonwhites in the entire affected county.
The ruling decided what Chief Justice Warren E. Burger, the dissenter, characterized as a "difficult case." But in initial reactions, the significance of the ruling was disputed, partly because neither of the two reasons for it had a majority.
In the justice Department, which has supported the New York plan, sources said an invalidation of the plan would have made the Voting Rights Act extremely hard to administer anywhere in the country. But they doubted that the affirmation of the plan would have broad impact.
In contrast, the NAACP Legal Defense and Educational Fund termed the decision "a major and encouraging pronouncement on affirmative action with important implications in the areas of employment discrimination and education."
Justice Marshall is a former director-counsel of the fund.
The Hasidic community had been entirely in one Senate distirct that was 37 per cent nonwhite and one Assembly district that was 61 per cent nonwhite.
To give the districts the 63 per cent nonwhite majorities deemed to be fair, the redistricting plan, which the Attorney General approved, sliced the Hasidic community in two, moving half of it to adjoining district.
Justice White said the state "no doubt . . . deliberately used race in a purposeful manner" but agreed with the Second U.S. Circuit Court of Appeals that because the voting rights law "necessarily deals with race or color, corrective action under it must do the same."
The plan "represented no racial slur or stigma with respect to whites or any other race," White said. " . . . There was no fencing out of white population from . . . the political processes of the county, and the plan did not unfairly cancel out white voting strength."
Dissenting, Burger said he "cannot square the mechanical racial gerrymandering in this case" with the Constitution. He said that "the use of a mathematical formula tends to sustain the existence of ghettos by promoting the notion that political clout is to be gained by marshaling particular racial, ethnic or religious groups in enclaves."