Draft of Supplemental Brief for Appellees

    TABLE OF AUTEORTTIES

Page

Cases

Andergon v. City of Bessemer City,
U.S. (1985) .....o........ 15

Brookg v. Allaln, No. 83-1865
(1984) .......................o... 3rt5

Eunter v. Underrood, U.S.
(1985) .........:............... 2

Pullnan-Standard Co. v. Swlnt, 156
U.S. 273 (1981) .................. 14

Rogere v. trodge, {58 U.S. 613
(1982) ............o.............. 2

Strake v. Seanon, No. 83-1823
(1984) ..............o.o.......!.. 3rl5

White v. Regeeter, 412 U.S. 755
(1973) ........................... 9r17

Ilitt v. Ilainwright, U.S.
( 19S5) ........T......7....... 15

Zinner v. lricKeithen, {85 E.2d 1297
(5th Cir. 1973) .................. 10

1-



Page

Statutes

Sectlon 2 of the Voting Rightg Act of
1955r EB anended , 42 U.S.C.
S 1973(b) ........................ 2r7ra

12 r15 ,16 r 17

Section 5 of the Voting Rlghte Act
Of 'l 955 ......................... 16117

Other Authorities
RuIe 52, Federal Rulee of Civil

PrOCgdUre ..................o..... 315

S. Rep. 97-417 (1982) ...o.......o....o 9.10

1i



No. 83-1968

IN TBE

STIPREIIE COURT OF TEE UNITED STATES

October Term, 1984

IIrIIa ta a aI-- I3-Bt3-lI =l3aE-=I3=3!

I.ACY E. TEORNBURG, gg al.,
Appe1lalts,

V.

RALPH GINGLES, €t El.7

;;"'
rlrrrtirir.tr:rrr--r:ar=rs-rr-iar

On Appeal fron the Unlted States
Dlstrict Court for the Eastern

Dletrict of North Carolina

SUPPI.B}IENTAT. BRIEF FOR APPET,LBES

Appellees subult

Brlef in response to

the Unlted States.

this Supplenental

the brief filed by



2-

The controlling question raised by

the brief of the United States concerns

the standard to be applied by this Court

in reviewing appeals which present

essentially factual issues. A section 2

action such as this requires the trial
court to determine whether

the political processes leading to
nomination or election in the State
or poI itical subdivision are not
equally open to p,arLicipation by [aprotected groupl.

The presence or absence of such equal

opportunity, like the presence or absence

of a discriminatory motive, is a factual
quest ion. See Hunter v. Underwood,

U. S. ( 1985); Rogers v. Lodge,

458 U.S. 613 (1982). Correctly

the factual nature of that

Court has on Lwo occasions

recognizing

issue, this

during the

42 u.S.C. s 1973(b).



3-

present term summarily affirmed appeals in
section 2 actions. Strake v. Seamon, No.

83-1823 (Oct. 1, 1984); Brooks v. Allain,

No . 8 3- 1865 ( Nov. 13 , 1984') . If an

ordinary appeal presenting a disputed

question of fact is now to be treated for
that reason alone as presenting a'sub-
stantial questionr" then this case, and

almost all direct appeals to this Court,

will have to be set for full briefing and

argument. We urge, however, that to

routinely treat appeals regarding such

factual disputes as presenting substantial
questions would be inconsistent with Rule

52(a), Federal Rules of Civil Procedure,

and with the efficient management of this
Court I s docket.

The Sol icitor General,

ducted his own review of some
2

the record, advises the Court

having con-

portions of

that, had he

The Solicitor General, understandably less



4-

been the trial judge, he would have

decided portions of the case differently.
The judges who actually tried this case,

all of them North Carolinians with long

personal understanding of circumstances in

that state, concluded that blacks were

denied an equal opportunity to participate

in the political processes in six North

Carol ina multi-member and one single

member legislative districts. The

Solicitor Generalr oo the other hand, is
of the opinion that there is a lack of

familiar with the details of this case
than the trial court, makes a number of
inaccurate assertions about the record.
The government asserLs, for example,ithere is not the slightest suggestiontr
that black candidates were elected because
whites considered them nsafe". (U.S. Br.
18 n. 17). In fact there was uncontra-
dicted testimony that only blacks who were
safe could be elected. (Tr. 625-26, 691,
851, 857). The Solicitor also asserts,
incorrectly, (U.S. Br. 17 n.14) that the
'1982 election was the only election under
the plan in question. In fact, the
districts have been the same since 1971.
(J.S. App. 19a)



5-

equal opportunity
3

in 2 districts, that
nthere may weII beo a lack of opportunity

4
in 2 other districts, but that blacks in
fact enjoy equal opporEunity to partici-

pate in the political process in the three
5

remaining districts. Other Solicitors

General might come to stiIl different
conclusions with regard to the political

and racial realities in various portions

of North Carolina.

House District 8 and Senate District 2i
U.S. Brief 21 .

House District 36 and Senate DistrLct 22i
U.S. Brief 20 n.10 The appendix to the
jurisdictional statement which contains
the District Court I s opinion has a
typographical error stating erroneously
that two black citizens have run 'success-
ful1y" for the Senate from Mecklenburg
County. The correct word is 'unsuccess-
fully". J.S. App. 34a.

House Districts 21 t 23 and 39; U.S. Brief
15.



5-

The governnent t8 fact-bound and

statietlc-laden brief, noticeably devold

of any reference to Rule 52, sets out all
of the evldence ln thlg ease rhlch
supported the positlon of the defendants.

It onlts, horever, any reference to the

substantial evldence rhlch was relled on

by the trial court ln findlng diecrlnina-
tion In the politlcal processes in each of

6the seven dlstricts in controversy. The

Senate Report acconpanying sectlon 2

listed seven prlnary factuaL factors that

should be conaidered ln a eection 2 caae

and the governnent does not challenge the

findlnge 1n the dlgtrict courtts opinlon

that at least sir of those factorg
eupported appelleeer clalng. On the

contrary, the governnent candidly acknorl-

edgee 'lIt]he dletrict court here faith-

5 ;I.A. App.21a-52a.



7-

fully conaidered these objectlve factors,
and there Is no clain that lts findlngs

wlth respect to any of then rere clearly
erroneoug.t (U.S. Br. 11).

The govcrnnent apparently contende

that aIl the evldence of dlecrlnlnatlon
and inequallty ln the polltlcal procesg

ras outwelghed, at leaet as t,o Eouee

Dietricts 21 , 23 and 39, solely by the

fact that blacks actually ron sone

electlons ln those nulti-ruerber dlstricts.
It urges

Judged sinply on the basls ofrresultErt the nultinenber plana in
these dlstricts have apparently
enhanced not dlluted nlnority
etrength. (U.S. Br. 16).

On the governnent r s view, the onJ.y

rregult' which a court nay conaider is the

nunber of blacks who won even the nost

recent election. Section 2, horever, does

not authorize a court to 'Judg [e] slnply



8-

on the basis of [election] 'resultstr, but

requires a more penetrating inquiry into

all evidence tending to demonstrate the

presence or

opport uni ty
absence of inequality of

I
in the political process.

Congress itself expressly emphasized in

section 2 that the rate at which minori-

ties had been elected was only ngng

circumstance which may be considered. "

The district court found, inter aIia, that
the use of racial appeals in-Al[-edET6ns has
been widespread and persists to the
present, J.S. App. 32ai the use of a
majority vote requirement "exists as a
continuing practical impedinent to the
opportunity of black voting minoritiestr to
elect candidates of their choice, J.S.
App. 30ai a substantial gap between black
and white voter registration caused by
past intentional discrimination ; extreme
racial polarization in voting patterns;
and a black electorate more impoverished
and less weII educated than the white
electorate and, therefore, less able to
participate effectively in the more
expensive multi -member d i s tr i ct e1 ect ions .
There was also substantial, uncontradicted
evidence that racial appeals were used in
the 1982 Durham County congressional race
and the then nascent 1984 election for
U.S. Senate.



9

(Emphasis added). The legislative history

of section 2 repeatedly makes clear that

Congress intended that the courts were not

to aEtach conclusive significance to the

fact that some minorities had won elec-
8

tions under a challenged plan.

The circumstances of this case illus-

trate the wisdom of Congress I decision to

require courts to consider a wide range of

circumstances in assessing whether blacks

are afforded equal opportunity to partici-

pate in the political process. A number

8 S. Rep . 97-417 , 29 n. I 1 5 ( "the election of
a few minority candidates does notrnecessarily foreclose the possibility of
dilution of the black vote t, in violation
of this section"), n. 118. (rThe failure
of plaintiff to establish any particular
factor is not rebuttal evidence of
non-dllution"). See also S. Rep. at 2,
16, 21 , 22, 27, 29, 33 and 34-35. The
floor debates are replete with similar
ref erences. In addit,ion, see White v.
Regester, 412 U.S. 755 ( 1973) aEElffiTiE
ffi Barnes, 343 F. Supp. ffi
ffi 1g7z) (dirution present
although record shows repeated election of
minority candidates).



10

of the instances in which blacks had won

elections occurred only after the com-

mencement of this litigation, a circum-

stance which the trial court believed
9

tainted their significance. fn several

other elections the successful black
10

candidates were unopposed. In one example

relied on by the Solicitor in which a

black was elected in 1982, every one of

the 1 1 black candidaLes for at-large elec-

tions in that county in the previous four
11

years had been defeated. In assessing the

political opportunities afforded to black

q- J.A. App. 3'7a. See also, S. Rep.at 29
n.115, citing Zimmer v. McKeithen, 485
F.2d 1297, 130@post-
1 it igation success is insignificant
because it nnight be attributable to
politicalsupport motivated by different
considerations -- namely that election of
a black candidate will thwart successful
challenges to electoral schemes on
dilution grounds.')

J.S. App. 42a, 44a.

J.S. App. 35a, 42a-43a.

10

't1



11

voters under those at-large systems, the

Solicitor General evidently disagrees with

the comparative weight which the trial
court gave to t,hese election results and

to the countervailing evidence; the

assessment of that evidence, however, was

a matter for the trial court.

The Solicitor General seeks, in the

alternative, to portray his disagreement

with the trial courtrs factual findings as

involving some dispute of law. This he

does by the simple expedient of accusing

the district court of either dissembling

or not knowing what it, was doing. (U.S.

Brief 12) Thus, despite the district
courtrs repeated statements that section 2

requires only an equal opportunity to
12participate in the political process, the

Solicitor General insists that .the only

12 J.S. App. 12a, l5a, 29a n.23, 52a.



12

explanation for the district court I s

conclusion is that it erroneously equated

the lega1 standard of Section 2 with one

of g_g3ranlggg electoral success in
proportion to the black percentage of the

popul at ion . " ( U. S. Brief 12, emphasis

original ). Elsewhere, the Solicitor,
although unable to cite any such holding

by the trial court, asserts that the court

must have been applying an unstated

"proportional representation plusrl

standard. (U.S. Brief 18 n.18). The

actual text of the district court opinion

simply does not contain any of the legat

holdings to which the Solicitor indicates

he would object if they were some day

contained in some other decision.

The government does not assert that

the trial court's factual finding of
racially polarized voting was erroneous,

or discuss the extensive evidence on which



l3

that finding was based. Rather, the

government asserts that the trial court,
although apparently justified in finding

racially polarized voting on the record in

this case, adopted an erroneous 'defini-
tion'of racial bloc voting. (U.S. Br.

13). Nothing in the trial court's detailed

analysis of racial voting patterns,

however, purports to set any mechanical

standard regarding what degree and

frequency of racial polarization is
necessary to support a section 2 c1aim.

Nothing in Ehat opinion supports the

government I s assertion that the trial
court would have found racial polarization

whenever Iess that 50t of white voters

voted for a black candidate. In this
case, over the course of some 53 elec-

tionsr do average of over 81t of white

voters refused to support any black

candidate. (J.S. App. 40a). Prior to this



14

litigation there were almost no elections

in which a black candidate got votes from

as many as one-third of the white voters.
(J.S. App. 41a-46a). In the five elec-

t ions where a black candidate rdas unop-

posed 1 d majority of whites were so

determined not to support a black that

they voted for no one rather than vote for
the black candidate. (J.S. App.44a).

While the level of white resistance to

black candidates was in other instances

less extreme, the trial court was cer-

tainly justified in concluding that there

was racial polarization, and the Solici-
tor General does not assert ot.herwise.

The Solicitor General urges this
Court to note probable jurisdiction so

that, laying aside the policy of appellate

self-restraint announced in Pullman-

Standard v. Swint, 456 U.S. 273 ( 1 98 1 ) ,

and its progeny, the Court can embark upon



15

its own inquiry into t,he diverse nuances

of racial politics in Cabarrus, Forsyth,

Wake, Wilson, Edgecombe, Nash, Durham,

and Mecklenburg counties. Twice within
the last nonth, however, this Court has

emphatically admonished the courts of
appeals against such undertakings.

Anderson v. City of Bessemer City, _
u.s- 11985);@,_
U.S. (1985). Twice in the present

term this Court has summarily affirmed

similar fact-bound appeals from district
court decisions rejecting section 2

claims. Starke v. Seamon, No. B3-1823

(October 1, 1984); Brooks v. A1Iain, No.

83-1865 (Nov. 13, 19841. No different
standard of review should be applied here

merely because in this section 2 case the

prevailing party happened to be the

plaintiffs.



l5

Appellees in this case did not seek,

and the trial court did not require, any

guarantee of proportional representation.

Nor did proportional representation result

from that courtrs order. Prior to this

litigation only 4 of the 170 members of

the North Carolina legislature were black;

today there are still only 1 5 black

members, less than I 0t, a far smaller

proport,ion than the 22.4* of the popula-

tion who are black. Whites, who are 75.8t

of the state population, still hold more

than 90t of the seats in the legislature.

In the past this Court has frequently

deferred to the views of the Attorney

General with regard to the interpretation

of section 5 of the Voting Rights Act. No

such deference is warranted with respect

to section 2. Although the Department of

Justice in 1965 drafted and strongly

supported enactment of section 5, the



17

Department in 198'l and 1982 led t,he

opposit,ion to the amendment of section 2l

acquiescing in the adoption of that

provision only after congressional

approval was unavoidable. The Attorney

General, although directly responsible for

the administration of section 5, has no

similar role in the enforcement of section

2. Wherer ds where, a voting rights claim

turns primarily on a factual dispute, the

decisions of this Court require that

deference be paid to the judge or judges

who heard the case, not to a Justice

Department official, however welI inten-
tioned, who may have read some portion of

the record. White v. Regester, 412 U.S.

755, 769 ( 1973). The views of the

Department are entitled to even Iess

weight whenr ds in this case, the Solici-
tor I s present claim that at-large dis-

tricts "enhance' the interests of minority



18

voters in North Carolina represent,s a

eonplete reversal of the 1981 positlon of
the Civil Rlghts Division that such

dlstricts in North Carolina rnecesearily

subnerge [ ] cognlzable rninority population

concentratlons lnto larger white elec-
torates.' ( Sectlon 5 objection letter,
Nov. 30, 1981, J.S. App. 6a).

CONCI,USION

For the above reason, the judgnent of
the distrlct court should be sunnarily

affirued.

Respectfully subnitted,

JULIUS IJ. CEAI]iBERS
LANI GUINTER*

NAACP Lega1 Defense and
Educatlonal Fundr Inc.

99 Eudson Street
16th Floor
New Yorkr Hew York 10013
(212) 219-1900



19

LESLTE J. WINNER
Ferguson, Watt, Wallas

and Adkins, P.A.
951 South Independence BIvd.

Charlotte, North Carolina 28202

Attorneys for Appellees

*Counsel of Record