Defendants' Motion to Reconsider Denial of Motion to Stay

    ,i a..',<,i. -s-r if't

No. 8&1968

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SUPPLEMEI.IIAL BBIEF OF TEF,

APPELI EIES IT.ITERYENOBS...

:

-(
- Rosenr N. Hrnlten, Jn-*

Amrtre J. DoNllosor.r
Hurrcn, EloocaaeN, GnspNE

- . & Doxer,osox- Post Offrce Box 3245 l

Greensboro, NC 27402
Telephone: (919) 275-L341

Attorney s for Appllzes-
Interuerwrs

'Counsel of Recoid

.":



TABLE OF CONTENTS

Page

r. rNTRODUCTION.................... I

rI. THE ULTIMATE FINDING OF
FACT OF THE DISTRICT COURT
IS SUBJECT TO THE CLEARLY
ERRONEOUS RULE.................. 3

III. THE ELECTION OF A FEW BLACK
CAI{DTDATES IN THE DISTRICTS
IN QUESTION DOES NOT DEFEAT
APPEttEETS CLAr!{.........o...... I

rV. TIIE DISTRTCT COURTIS FINDINGS
BASED ON THE TOTALITY OF TIIE
CIRCUUSTANCES WAS NOT CLEARLY
ERRoNEoUs. .. . o ...... . ... ..... o. . 15

v. coNcLusroN....... .......... l7



l.

TABLE OF AUTHORITIES

Cases: Paqe

Anderson v. Bessemer City, No.
83-1623, slip op. 14-15... 6,7

East Carroll Parish School Board of
v. Marsha1l,424 U.S.535 (1975).. 10

Graves v. Barnes, 343 F.Supp. 704
(L972 )................... 10

Mobile v. Bolden, 446 U.S. 55
(1980)....... r.................... 10

Pu1lman-Standard v. Swint, 456 U.S.
273 (1982).............. 6

Rogers v. Lodget 458 U.S. 513,
(1982).......0. ......o.. 5r9 :

Commrn.., 731 F.2d 1545 (11th
Cir. 1984).............. ....o 5 =

Valasguez v. City of Abelene, Tex.,
725 F.2d 1017 (5th Cir. 1984) 6

White v. Register, 412 U.S. 755
(1973).... ...o............... 10117

Zimmer v. McKeithan, 485 F.2d 1297
(sth Cir. 1973)......... 10

Constitutional and Statutoly-ProvjSjons

42 U.S.C. S1973c

Rule 52(a) F.R.Civ.P

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No. 83-1968

IN THE

SUPREME COURT OF THE T'NITED STATES

ocToBER TERM, 1984

LACY H. THORNBURG, ET AL.,

Appellants,

v.

RATPH GTNGLES, ET AL.,

AppeIlees.

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT

FOR THE
EASTERN DISTRICT OF NORTH CAROLINA

SUPPLEMENTAL BRIEE' OE' TEE
APPELLEES INTERVENORS

Robert N. Hunter, Jr. *
Arthur J. Donaldson
Hunter, Eodgman, Greene

& Donaldson
Post Office Box 3245
Greensboro, NC 27402
Telephone: (919) 275-1341

Attorneys for Appellees-
fntervenors
*Counsel of Record



SUPPLEMENTAL BRIEF OF THE
APPELLEES INTERVENORS

INTRODUCTION

Appellees-Intervenors are Republican

black plaintiffs who had earlier filed

similar Section 2 action and were subse-

quently allowed by the District Court

to intervene in the Gingles lit'igation'

Earlier the aPPeIIee-intervenors had

joined with the Gingles appellees motion to

dismiss the aPPeat and affirm the judgment

of the court below. APPellee-intervenors

now desire to file pursuant to RuIe 16'6 a

supPlemental brief in resPonse to the

Amicus Curiae Brief the United States filed

on April 10, I985. (cited as "U'S'Br"')

The Amicus Brief attacks the District

Court's ultimate findings of fact in this

action. This argument should not consti-

tute a basis for plenary review of the

District Courtrs judgment'

I.



fn enacting the Voting Rights Amend-

ments in 1982, Congress madd crystal clear

that it intended for a district court to

engage in an intensely loca1 appraisal of

"historical, social and political factors

comprising the totality of circumstances

affecting" the operation of the challenged

electoral mechanism. fn determining vote

d ilut ion no s ingle factor such as the

extent to which members of a minority group

have been elected was to be dispositive.l

In this action three federal judges,

all lifelong North Carolina residents,

engaged in an exhaustive eight, part analy-

sis of all of the circumstances enbodied in
the legislative and judicial history, and

1' Indeed the statute itself
states that the extent of election of
memb.ers of the protected class " is one
circumstance which may be cDnsidered...'
42 U.S.C. S1973c.

-2-



carefully weighed how each of those factors

affects the ability of North Carolina's

black citizens to participate in t'he

political process and to elect representa-

tives of their choice. Their unanimous

ultimate finding was that the use of at

large elections in the multimember

districts where there are concentrations

of minority voters has a discriminatory

result. A11 litigants agree this factual

finding is not clearlY erroD€ouS.

Appellee-intervenors contend the judgnent

should be summarily affirmed by this

Court.

fI. The Ultimate Finding of Fact of
the District Court is Subject to
the Clear1y Erroneous Rule

The United States agrees that the

proper lega1 standard for determination

of Section 2 is whether, considering

the totality of the circumstances, the

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challenged electoral mechanism has the

' result, of denying minoriEy citizens an

equal opportunity to participate in the

' political Process and to elect representa-

tives of its choice. (U.S.Br. 10. )

Since this is the legal standard that
:

the district court. applied (J-S.12a-13a),

the guSstion is whether the District

Court's finding of fact, that the use of

the multimember districts in question does

have that result (J.S.51a-52a), is clearly

erroneous.

:.

subsidiary findings are al1 correct

(U.S.Br. 11), but asserts that there

remains a need for judicial review of the

ultimate finding on appeal. (fd.) Appel-
' lees agree with that the ultimate finding

-4-



is reviewable, but the scope of

limited by Rule 52(a), F.R.Civ.P.2

revlew ls

That ultimatd findings of fact are

subject to RuIe 52 ( a ) has been stated

recently and freguently by this Court.

)- The United States cites no
cases in which an ultimate finding of
discriminatory result was treated as a
conclusion of 1aw. for purposes of review.
The one case cited decided after Section 2
was amended in L982, United States v.
Marengo County Comm r!, Z If-fl.-Z?-T5I6--(-ffFn'

t a review of a S2
determination. Instead the lower court had
determined that there was no unconstitu-
tional vote dilution because of lack of
discriminatory intent, and the Court of
Appeals remanded for a determination of the
S2 guestion. Since the District Court, in
dicta, had indicated a determination of no
ffiiminatory result based on a finding
that black voter apathy caused black
electoral defeat, not based on an analysis
of the totality of the circumstances, the
Court of Appeals explains the proper
application of the totality of the circum-
stances standard in much the same manner
that the district court herein explained
it. Compare United States v. Marengo Co.
Comm'nr 731 F.
TTFffia

-5-



Anderson v. Bessemer Citg, No' 83-1623 '
slip oP. 14-15; Eegsrs-v'--Lgdger 458

U.S. 6I3, 622-623, 627 (1982); PulE3n-

Standard v. Swint, 456 U.S' 273, 287-293
2-(1982)J under RuIe 52(al, the role of

the appellate court is not non-existantr ds
1\

the. United States implies,(u.S'Br' I3f Uut

it is limited. As this Court recently

stated:

If the district court's account of
evidence is Plausib1e in light of
record viewed in its entiretY,
court of aPPeaIs may not reverse
even though convinced that had

the
the
r,he
ir
ir
irbeen sitting as the trier of fact,

differentlY. Where there are
permissibla views of the evidence,

two
the

3 Considering the determination
of discriminatory relult as a finding of
'f act sub ject tb RuIe 52 ( a ) I s clearly
erroneous standard is consistent with the
holding of the Courts of Appeals which have
revieied S2 determinations since the
statute vras amended in 1982. See I € '$ ' 1

valasouez v. City of Abelene, Tex', 725
).

-6-



a

factfinder's choice between them
cannot be clearly erroneous. Icita-
tions omittedl

Anderson_v._BSssemer City, sgpfa at 8.

The United States., based on its
examination of a sma1l portion of the
record, has decided that it would have

weighed the factors and decided the case

differently than the District Court did.
That determination is not within the proper

scope of review, and the re-weighing of the

myriad facts present in the record to
determine if the ultimate finding is
clearly erroneous is not worthy of plenary

consideration by this Court.4

n' The only question of 1aw raised
is whether the finding of any black elec-
toral success is an absolute bar to a
determination that S2 has been violated.
Th is guest,ion of law is discussed in
Part III, infra.

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III. The Election of a Few Black
Candidates in the Districts

. in Question Does Not Defeat
AppeIIee's CIaim

The United States asserts that a

necessary element of a S2 violat,ion is a

showing that no blacks have been elected in

each district in guestion (U.S.Br- n- L2),

and that multimember districts are not

unlawful unless "minority candidates are

. . . effectively shut out'of the electoral

processr" (Id. at 19). This ProPosition is

unsuPPortable.

First, the legislative history of the

1982 Amendments to 52 clearly states that a

totality of the circumstances analysis is

to be usedr and that no single element

governs whether there is a violation of 52.

See e. g. , S€nate Report at 29 , n'. 118 ( "The

failure of plaintiff to establish any

particular factor is not rebuttal evidence

-8-



of non-dilution.") Congress did not intend

for there to be a litmus test.

This legislative history is consistent

with this Court's decisions that no one

element is dispositive on the guestion of

- i1Iegal vote dilu.tion. Rogers v. Lodge,

458 U.S. 513 (1982), (findings of
unresponsiveness of unconstitutional vote

dilution. )

Nonetheless, the United States rejects

that lack of electoral success is a neces-

sary element of a Section 2 violation.

This proposition has startling results when

appLied to the facts in the record. In

House District 36 (Mecklenburg County), in

which one black representative out of eight

vras elected for the f irst time this century

in 1982, after this litigation was filed,

and in House District 39 (Forsyth County)

in which two black candidates were elected

-9-



-

' In arriving at, this conclusion,
the United States uses a peculiarly myopic
view of the caselaw prior to l'lobi1e v'
Bolden, 446 U.S. 55 lrseo), cffirEEE
TEiElTTnq Zimmer v. McKeithan, 485 F'2d
ligt. t5o7-TEEE'-ffif 'd sub 

- 
nom

East CarrolI Parish School Board of v'
U;if 

==f 

-iir=,-.z?.mo36'-897i'[-wf TEf TE
E:EEA-F'rt',o s"t'trt" R"rott fo. o.ooo"itio,l ''-

that " the elect ion of a few minor ity
candidates does not 'necessarily foreclose
the possibility of dilution of the black
vote', in vi-otat,ion of this section' "
S.Rep. at 29, n.I15, citing ZimTe5, .quPra'
It also ignores the facts of Whlte v'
Reqister, 4L2 u-s. 755 (1973f;;ETc5'
EffffrEE-tne district court's finding of
illegal vote dilution in -Graves v. Ba!n[ii,
343 F .supp . 704, 726, lffiTz)llTE'e
extent of minority election in Graves v'
Barnes (2 blacks elected in one county
SEEwEn I956 and 1971 and 5 Mexican
Americans elected since 1880 in another
county ) i.s s imilar to the extent in the
districts in question here. For example,
in Wake County, only one black candidate
had been elected to the House this century
(in 1980 and I982). Stipulation 97'

in Lg82 following the defeats of black

candidates in 1978 and 1980. The United

Stat.es would have t,h is Court reverse t'he

district court's finding as a matter of law

solely based on these electionsr Do matter

how many Iosses blacks have suffered and no

mat,ter what the other factors show'

(U.S.Br. 15-18. )5

-1 0-



Secondly, the United States gives a

one sided picture of black electoral
success, which the court below heard and

rejected. A more balanced picture is as

fo I lows :

1. While pointlng out black elec-
toral successes, lhe United States ignores

the defeat of black candidates in l.97g for
the House from Wake County in 197'8 and 1980

for the House from Forsyth County, in 1980

and I982 for the House from Mecklenburg

County, and in 1980 and L982 for the Senate

from Mecklenburg County. (J.S.34a-36a. )

2. The United St,ates asserts that
black voters have not only been able to
elect candidates of their choice but have

had influence over other seats as we11.

(U.S.Br. 15. ) There is no citation to a

finding of fact or to the record. The

District Court found just the opposite

- 11-



stating that 'to have any chance of suceess

in electing candidates of their choice in

these districts, black voters must rely

ex tens ively on a s ingle-shot vot ing I

thereby forfeiting by practical necessity

their right to vote for a full slate of

candidates.' (J.S- 4la. )

3. The United States asserts t'hat

the District Court found a violatlon in

Forsyth County based on general statewide

election results, not a results from that

particular district- (U.S.Br' 11' 15' ) This

assert ion

States has an inaccurate and incomplete

knowledge of the evidence uPon which the

court below based its findings ' The

district court examined the erratic

successes and failures of black candidates

for the General Assembly r the Board of

Education and the Board of County Commis-

sioners for Forsyth County (J.S'APP'35a),

and made its finding eoncerning the extent

-L2-



?o

of election as to the state generally and

"specifically in the areas of the chal-
lenged districts." (J.S.38a.)

The United States' brief is based upon

imperfect knowledge of the facts showing

the extent of election of minorities. The

amicus brief concludes that the District
Court's finding of discrininatory result
was erroneous is based on this imperfect

p icture.

Finally, the United Si'ates adopts the

position of appellants that a Court may not

give any significance to the racial polari-

zation of voting which exists unless that
polarization is always outeome determina-

tive. (U.S.Br. .13-14. ) Since appellants

concede that the voting was racially
polarized to statistically significant
degree, this is a guestion of weighing.

For example, the Un ited States would

prohibiC attaching significance to the

racial polarization of the voting in

- 13-



|.e

Durham County in 1978 because the black

candidate won even though he received votes

from only 15t of the white voters in the

prim6ry, comPared to 92* of the black

votes (J.S.43a), and even though he ranked

5th out of 7 candidates for 3 seats among

white vot.ers. Even running as an incumbent

two-third of whites consistently failed to

vote for the black candidate.

The District Courtrs labeling of the

pola rLzaEion of voting as 'severe" is

weighing is not clearly erroneous, the

district court's labeling of the racially

polarized voting as "severe'does not

rrarrant f urther cons iderat ion by the
' Court. Otherwise, this argument is simply

. another statement of the thesis that a

- 14-



,. al

showing of absolute electoral defeat is a

necessary element of a violation, a thesis

whichr ds discussed above, has no basis in

the Congressional historY of S2.5

Iv. The District Courtrs Findings Based
on the Totality of the Circumstances
Was Not ClearlY Erroneous.

Th: District Coourt did not 'trudge

throughn (U.S.Br. 11) the factors listed in

the Senate Report. Nor did the district

court adopt a "proportional rePresentation

plus" standard ( the lack of ProPortional

representation plus any one factor) as the

United States suggests- (U.S.Br. 18. )

5 ContrarY to the assertion of
the United States, U.S.Br-n.10, the dis-
tr ict court d id not su99est, even in
passing, that racial polarization of voting
was severe if the black candidate got less
than 5Ot of the white vote- It did note
that no black candidate had ever gotten
votes from more than 50t of the white
voters. (J.S.APP.40a. )

-15-



Instead, the District Court carefully

analysed each of the sPecified factors and

the manner in which each affects the

opportunity of black citizens to partici-

pate in the political system on an equal

footing with white citizens.(J.S. 18a-52a.)

While the United States considers only one
1factotr' the district court weighs each

of the factors for each of the districts in

question. The United States concedes that

none of the findings of these subsidiary

makes a passing reference to two other
factors, candidate slating and other
practices which enhance the oPPortunity to
discriminate. (U.S.Br. at n.17. ) Even
this reference is misleading by omitting
any reference to North Carolina's majority
vote requirement (J.S.29a), and North
Carolina's former numbered seat and anti-
single shot vote reguirements. (fd.) In
addition, to the extent that the footnote
implies that there is a candidate slating
process which is oPen to blacks, it is
mistaken. There is no finding concerning
candidate slating at all.

-15-



..no

facts is clearly erroneous. (U.S.Br.11. )

The District Court's " inEensely loca1

appraisalr" White v. Register, 412 U.S. at

769, of the totality of these factors is,

similarly, not clearly erroneous, and

should be affirmed

v. CONCLUSION

The pasition of the United Statesl

amicus brief is unsound and inconsistent.

It is unsound in that it is based uPon an

erroneous presentation of. one side of the

minority electoral success. This Presen-

tation and the logical inferences which

arise from these facts were argued before

the district court below and rejected.

"BIack candidates who, between 1970 and

1982, won in democratic porimaries in

the six multimember districts under chal-

lenge here were three times as 1ike1y to

Iose in the general election as were their

-17 -

--:



r'
white Democratic counterparts. " (J.S.34(a) )

The factual inferences do not require a

second hearing. The brief is inconsistent

in that the Justice Department on at
least three prior occasions, has denied

preclearance under Section 5 to similar
North Carolina urban counties redistricting
plans because the use of large multimember

districts necessarily submerges cognizable

minority population concent,rations into
larger white electorates. The amicus brief
ignores the history of the Justice Depart-

mentrs action when confronted with this
identical problem in areas covered by the

act. The court below has not confused the

issue of relevant evidence with the issue

of legaI standard. Based upon the ultimate
findings of fact which are not clearly
erroneous, no other logical conclusions of
law could be drawn. The court should
summarily affirm Ehe lower courts judgment.

-18-



Respectfully submitted,

Robert N. Hunter, Jr.*
Arthur J. Donaldson
Hunter, Hodgrnan, Greene

& Donaldson
Post Office Box 3245
Greensboro, NC 27402
9t9-275-1 3 4 I
Attorneys for Appellees-
Intervenors
*Counsel of Record

-19-

I