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 *68appellants 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. Certainly in these areas the Fourteenth Amendment “nul*69lifies 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 state-sanctioned 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*70tiffs 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 Fein-berg 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 inter-venors.” 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.
*71In light of these conflicting opinions and analyses, this case cannot be fairly decided on the ground stated in the opinion of the Court, viz., that “[w]e accept the District Court’s finding.” Ante, at 58. Which finding and under what constitutional standard — Judge Moore’s, Judge Feinberg’s or Judge Murphy’s? Judges Moore and Fein-berg, who comprised the majority below, differed both with regard to the constitutional standard and, as I read the opinions, with regard to the proof. It should not be forgotten that the conclusions of the District Court— both as to law and fact — have not been reviewed by an intermediate appellate tribunal. Instead the case has come directly to this Court from a three-judge District Court and presents a record containing variant and inconsistent legal and factual conclusions. Even where a three-judge District Court has made a unanimous finding of fact, this Court has given that finding less deference where, as here, it depends on evidence that is largely documentary and particularly where, as here, “the crucial issues involve mixed questions of law and fact.” United States v. United States Gypsum Co., 333 U. S. 364, 396. In my view, we cannot, in light of the record in this case, rest our decision on the “finding” of the District Court without abdicating our responsibility for principled constitutional adjudication.
My Brother Douglas in his dissent has set forth the virtually undisputed facts. I shall not repeat them here. He has also set forth the correct constitutional standard which I believe we should unhesitatingly reaffirm and apply. On the basis of the evidence,11 agree with Judge *72Murphy’s conclusion “that the only available inference from the . . . uncontradicted figure picture establishes per se a prima jade case of a legislative intent to draw congressional district lines in the 17th and 18th Districts on the basis of race and national origin.” Id., at 472-473. At least, however, appellants’ proof made it appear *73probable that a racial criterion shaped the 1961 reapportionment and that an inference of reliance on such an impermissible criterion was more reasonable than an inference that other factors alone had been used. In my view, then, this justifiable inference was sufficient to raise a re-buttable presumption of unconstitutionality and, without shifting the ultimate burden of proof, to place on the State the burden of going forward and introducing rebuttal evidence. See Note, 72 Yale L. J. 1041, 1056-1061. It might be that the appellees and intervenors could have offered proof to counteract the inference of racial dis-tricting, but they chose not to do so. They might, for example, have attempted to prove that the lines were drawn in an attempt to equalize the population of districts or to follow neighborhood lines. The simple answer is that appellees made no attempt whatever to rebut the inference that race was a criterion in — or racial segregation a purpose of — the districting.2
The question therefore recurs: What more need appellants have proved? Judge Moore apparently would have required them to introduce proof that the legislature’s actual motive was to create racially segregated voting districts. Appellants, however, by their evidence established a pattern of segregation not adequately explained on a geometric, geographic, equalization, party-compromise, neighborhood or other basis. To require a showing of racial motivation in the legislature would place an impossible burden on complainants. For example, in this case the redistricting bill was recommended and submitted to the legislature on November 9, 1961, passed on November 10, 1961, and signed by the Governor on that date. No public hearings were had on the bill and no *74statements by the bill’s managers or published debates were available. Under these circumstances, appellants’ evidence, showing the factual pattern of segregation outlined by Mr. Justice Douglas and by Judge Murphy, was sufficient to establish a prima facie case of unconstitutional racial districting. Once this had been done, appellees should have introduced evidence negating the inference that racial segregation was a purpose of the dis-tricting. In the absence of such proof by the State, I am compelled to conclude that racial segregation was a criterion in- — -or a purpose of- — the districting of New York’s Seventeenth and Eighteenth Congressional Districts. I, therefore, respectfully dissent.
Judge Murphy in his dissent stated:
“The uncontradicted proof submitted by plaintiffs, however, establishes a visual figure picture of the end results of the recent redistricting of Manhattan Isle (New York County) as follows:
“Manhattan has a population of 1,698,281 people and is entitled to four congressmen. The census figures of 1960 divided the ethnic *72groups into only two classes — white and non-white and Puerto Rican. These classes have been counted and according to the census 1,058,589 or 62.3% are white and 639,622 or 37.7% are non-white and Puerto Rican.
“The district lines as fixed by Chapter 980 created the four districts in question with the following make-up:
Non-White and Puerto Rican
Total District Population White Population % of District Origin Population of District
17th 382,320 362,668 94.9% 19,652 5.1%
18th 431,330 59,216 13.7% 372,114 86.3%
19th 445,175 318,223 71.5% 126,952 28.5%
20th 439,456 318,482 72.5% 120,974 27.5%
Total 1,698,281 1,058,589 62.3% 639,692 37.7%
“The following table shows the percent of non-white persons and ■persons of Puerto Rican origin in each congressional district in relation to the total number of such persons in the entire county:
% of Non-White and District Puerto Rican of County
17th 3.1%
18th 58.2%
19th 19.8%
20th 18.9%
I00P%
“The figure picture of the 17th District shows that the lines as drawn encompass a population 94.9% white and 5.1% non-white and Puerto Rican. It further shows it has a population of 382,320 people, or between 15.4% and 12% less than any of the adjoining districts. The 18th District encompasses-a population that is 86.3% non-white and Puerto Rican and only 13.7% white. Its population of 431,330 people is 12% more than the 17th and 5% above the state average.” 211 F. Supp. 460, 472.
In fact the State in its brief in this Court candidly asserts “that a Legislature may ‘consider’ race in drawing Congressional district lines and . . . that there is no per se prohibition against classifications by race.”