dissenting.
When two mighty political agencies such as the Department of Justice in Washington, D. C., and the Attorney General of New York in Albany agree that there is no racial discrimination in voting in three New York counties although the historic record1 suggests it, it *370is time to take a careful look and not let this litigation be ended by an agreement between friendly political allies.
The Voting Rights Act Amendments of 1970 were specifically aimed at New York — particularly Bronx, Kings, and New York Counties. It was pointed out in the debates that under the earlier Act these counties were not included, that while in the 1964 election more than 50% of the voters were registered and more than 50% voted, in the 1968 election 50% were not registered or voting. 116 Cong. Rec. 6654, 6659. It was pointed out that New York's literacy requirement was enacted with the view of discriminating on the basis of race. Id., at 6660. New York blacks were illiterate because their education, if any, had been in second-class schools elsewhere. Id., at 6661. It was emphasized that wherever the blacks had been educated it was unconstitutional to discriminate against them on the basis of race even though illiterate. Id., at 5533. The use of literacy tests in New York tended to deter blacks from registering, it was said. Ibid. And it was pointed out that literacy tests had a greater impact on blacks and other minorities than on any white because literacy was higher among whites. Id., at 5532-5549.
In the face of this history, the United States did not call one witness or submit a single document or make even a feeble protest to New York’s claim that it was lily-white. The United States has no defense to offer. The desultory way in which the United States acted is illustrated by the fact that although the Act requires *371the District Court to retain jurisdiction of the cause for five years, 42 U. S. C. § 1973b (a), the United States did not even make the request. It capitulated completely. And yet the blacks, the Americans of Puerto Rican ancestry, and other minorities victimized by illiteracy tests clamor in their way for representation. Only NAACP offers it in this case. The investigation made by the Department of Justice has all the earmarks of a whitewash.
The Attorney General had testified before Congress: 2
“[I]t is clear that Negro voting in most Deep South Counties subjected to both literacy test suspension and on-scene enrollment by Federal registrars is now higher than Negro vote participation in the ghettos of the two Northern cities — New York and Los Angeles — where literacy tests are still in use. In non-literacy test Northern jurisdictions like Chicago, Cleveland and Philadelphia, Negro registration and voting ratios are higher than in Los Angeles and (especially) New York. . . .”
Yet, none of these assertions were given the District Court nor was any attempt made to develop evidence along these lines.
This suit by the State of New York to get an exemption for the three counties started on December 3, 1971. On March 10, 1972, the United States filed its answer and on March 17, 1972, New York moved for summary judgment. On March 21, 1972, NAACP was advised by the Department of Justice that the latter would oppose New York’s motion for summary judgment. Out of the blue the Department of Justice on April 4, 1972, consented to the entry of a decree exempting the three New *372York counties from the Act. The motion to intervene was promptly filed April 7, 1972.
The answer filed by NAACP on April 7, 1972, alleges that the literacy test administered by New York deterred minorities from registering, that it was administered by whites, that social gerrymandering was so widespread and successful that minorities were discouraged from voting, and that New York produced illiterate blacks through operating inferior black schools — inferior in educational facilities, inferior in teachers, and inferior in expenditures per capita.
It is assumed, of course, that the United States adequately represents the public interest in cases of this sort. But on the face of this record of transactions that the United States has approved or does not contest, it is clear that it does not adequately represent the public interest. Intervention as of right under Rule 24 (a) (2) should therefore be allowed. See Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U. S. 129, 135-136.
Here it is plainly evident that the United States is an eager and willing partner with its allies in New York to foreclose inquiry into barriers to minority voting. What the facts may produce, no one knows. All that is requested is a hearing on the merits. The fresh air of publicity that only a fair and full trial in court can produce should be allowed to ventilate a case that has all the earmarks of a cozy arrangement to suppress the facts — evidence which, if proved, would be adequate as a basis for relief in a case from the South. See Gaston County v. United States, 395 U. S. 285. This evidence, if proved, should be equally adequate in the North.
The Attorney General of New York protests this statement. But the 90-year-long segregated school system of last century is not the point; the reference is to the offer of proof made by the appellants. The Attorney General also states that the federal investigation showed that the inference has no basis in fact. He asserts moreover that New York’s literacy requirement has no racial cast in *370practice. But appellants’ offer of proof is disturbing to say the least. The case was disposed of on a motion for summary judgment. The case is in my view a classic example of the inappropriateness of such a procedure. As I state in my dissent, a hearing should have been held and findings of fact made.
Hearings on H. R. 4249, etc., before Subcommittee No. 5 of the House Committee on the Judiciary, 91st Cong., 1st Sess., ser. 3, p. 296 (1969).