Draft of Brief for Appellees

    No. 83-1958

IN THE

SUPREIVIE COURT OF THE UNITED STATES

October Term, 1984
== ================ ===============
LACY H. THORNBURG, et dL. r-

*'nil".",
.v.

RALPH GINGLES, €t dl.,

APPellees.
======================== === =====

On APPeal from the United Stat'es
District Court for the Eastern

District of North Carolina

== ======= == ==== = ===== === ==== = === ==== ====

BRIEF FOR APPELLEES

=========== ===== = === ==== ==== = === === =====

JULIUS L. CHAT{BERS
ERIC SCHNAPPERc' 'ftXi.g'ffi:l olt"n".

and Educational Fund, Inc.
1 5th Floor
99 Hudson SLreet
New Yorkr New York 10013
(212) 219- 1 900

LESLIE J. WINNER
Ferguson, watt, WaI1as,
t Adkins, P.A.
951 S. IndePendence Blvd.
Charlotte, North Carolina 28202
( 704 ) 37 5-846 1

ATTORNEYS FOR APPELLEES, RalPh
Gingles, et aI-
*CounseI of Record'

9c
-t'

t".
-Jl



QUESTIONS PRESENTED

( 1 ) Does section 2 of the Voting

Rights Act require proof that

minority voters are t,otallY

excluded from the Political
process?

(2)

(3) Did the dist,rict court hold that

section 2 requires eit,her

proportional representation or

guaranteed minority electoral

success?

i-

Does the election of a minority

candidate conclusively establish

the existence of equal electoral

opportunit,y?



(4) Did the dlstrict court coE-

rectly evaluate the evidence of

racially Polarized voting?

(5) Was the district courtrs finding

of unequal electoral oPPortunit,Y

"clearly erroneougu?

tt



TABLE OF CONTENTS

-

Questions Presentgd ....... . o....

Table of Authorities . ...........

Statement of the Case

Findings of the District Court ..

Summary of Argument ...... o..... o

Argument

I. Section 2 Provides

Paqe

.i

.vi

.1

.7

. .15

Minority Voters an Equal
Opportunity to Elect
Represent,atives of their
Choice ................. 19

A. The Legislative HistorY of
t,he 1982 Amendment of
Section 2 ... .. .. 21

Equa1 Electoral OPPor-
tunity is the St,atutorY
Standard . .. o... .... ... . 44

The Election of Some
tttinority Candidates Does
Not Conclusively Establish
the Exist,ence of Equal
EIectoral Oppor-
tunity .. ... ..... 50

111

B.



Page

II. The District Court Re-
quired Neither Proportional
Representation Nor Guaran-
t,eed trtinority Political
Success ..........o........ 64

IIf. The District Court APP1ied
the Correct Standards In
Evaluating t,he Evidence of
Polarized Voting o. ..... ... 70

A. Summary of the District,
Court's Findings ...... 73

' B. The Extent of racial
polarization was sig-
nificant, even where
some blacks $ton ....... 76

C. Appellees were not re-
quired to prove that white
voters' failure to vote
for black candidates was
racially motivated .... 81

D. The oistrict Court's
finding of the extent of
racially polarized
voting is not clearly
effOneOUS ............. 88

IV. The District Court Finding
of Unequal Electoral OPPor-
tunit,y l{as Not Clearly
Erroneous .o............... 95

(A) The Applicabilit,y of
RuIe 52

tv

95



Paqe
( B ) Evide nce of Pr ior '+

Voting Discrimi-
nation ... ...... . .. ... 102

(cl Evidence of Economic
and Educational Dis-
advantages .... .... .. . 107

(D) Evidence of Racial
Appeals by White
Candidates ........... 113

(E) Evidence of Polar-
ized Voting .......... 118

(F) The ltajoritY vote
Requirement .o........ 118

(G) Evidence Regarding
Electoral Success of
I{inority Candi-
datgs ...... o........ . 121

(H) fhe ResPonsiveness
Issug .o.............. 130

(I) Tenuousness of the
State PoIicy for [tu1ti-
member Districts ..... 131

Conclusion ......... o............. o.. 135



TABLE OE'AUTFORITIES

Page
Cases

Alyeska Pipeline Service v. Wilder-
ness SocietY, 421 U.S.
240 (1975) .....o............ 101

Andersorl v. CitY of Bessener
City, U.S. , 84
r.E4.2trs18 (1995) 15,99,101

Andersoll v. ttills, 664 F.2d
500 (6t,h Cir. 1981) ......... 84

Bose Corp. v. Consumers Unlon,
80 L.Ed.2d 502 (1984) 100

Buchanan v. City of Jackson,
708 F.2d 1055 (6th Cir.
1983) ............ ...... 97

City of Port Arthur v. U.S.,
517 F. SuPP. 987, affirmed
4se u.s. isg (19821:... 85,121

City of Rome v. U.S., 446 U.S.
156 ( 1980) .... o........ . 721101 ,121

Collins v. City of Norfolk,
F.2d (4th Cir.

fiifv 22, T9Ts) .............. '97

v1



Cases

Connecticut v. Teal, 457
u.s. 440 (1982) ...........o.

Cross v. Baxter, 604 F.2d 875
(5th Cir. 1979) .......o.....

David v. Garrison, 553 F.2d 923
( 5th Cir. 1977 ) . . . . ... .. .. ..

Dove v. I{oore, 539 F. 2d 1152
( 8th Cir. 1976 ) .. . .. . ... . .. .

East CarrolI Parish School Board
v. Marshall , 424 U.S.
636 (1975) ... ........ o.

Ernst and Ernst v. Hochfelder,
425 U.S. 185 (1976) .........

Garcia v. United States, 105
s.ct. 479 ( 1984) ............

Gaston CountY v. United States,
395 U.S. 295 (1959) .........

Gilbert v. St,errett, 508 F. 2d
1389 (5th Cir. 1975)

Ilarper & Row, Publisher v.
Nation, 85 L.Ed.2d 588
( 1985) ............. o.... .. "

Hendrick v. Wa1der, 527 ?.2d 44
(7th Cir. 1975) .....o.......

Hendrick v. JosePh, 559 F.2d
1265 ( 5th Cir. 1977 ) . . .. .. . o

-vll -

Page

56

112

112

36

109

98

99

112

98

53

31

50



Page
Cases

Hunter v. Underwood, U.S. ,
85 L.Ed.2d 222 (T965) ...:. 1oo

Jones v. Cit,y of Lubbock, 727
F.2d 364 ( 5th Cir. 1 984) .. . . 97 ,131

Kirksey v. Bd. of SuPervisors,
554 F.2d 139 (5th Cir.
1977) ..............""""' 56

Kirksey v. City of Jackson, 599
F.2d 317 (5th Cir. 1982) .... 84

' Lodge v. Buxton, Civ. No. 176'
55 (S.D. Ga. 1O/25/781, aff'd
Rogers v. Lodge, 458 U.S:-
513 (1982) .......o.......... 80

Major v. Treen, 57 4 F. SuPP. 325
(8.D. La. 1983) (three judge
COUft) . . . . . . . . . . . . . . . . ' ' ' ' ' 56 r71 t78

IvlcCarty v. Henson , 7 49 F. 2d
1 1 34 ( 5th Cir. 1 984) , afqrd
753 F.2d. 879 (5th CirT
( 1985) . ... o... o.. .. o. o... " ' 97

McCleskey v. zant, 580 F. SuPP.
380 (N.D. Ga. 1984) ......... 86

ttcGill v. Gadsden County
Commission, 535 F.2d 277
(5th Cir. 1976) ............o 98

Mclli11an v. Escambia CountY,
748 ?.2d 1037 (1984) 110,131

Iqetropolitan Edison Co. v. PANE,
460 U.S. 766 (1983)

viii-

99



Page
Cages

trtississippi Republican Execu-
tive Commit,tee v. Brooks,

u.s. , 105 S.Ct.
7TT (1984T-........r..o..... 85

llobile v. Bolden , 445 U. S. 55
(1980) ........ """' "'22r23,24'30159,82

NAACP V..Gadsden Count,Y School
Board, 691 E'.2d 978 (1lth
Cir. '1 g82) ................'.. 80

Nevett v. Sides, 57 1 F.2d 209
(1'978) .........' ""o"' ..'' 68, 59

Parnell v. RaPidas Parish School
Board , 563 F.2d 1 80 ( 5th
Cir. 1977) ...o.........'o"' 98

Perkins v. CitY of West Helena,
575 F.2d 201 (8t'h Cir.
1982) ..........o."""""' 85

Rogers v. Lodge, 458 U.S. 513
(1982) ....o....... 79t80r85r101r131

Sout,h Alameda SPanish SPeaking' Org. v. CitY of Union
City, 424 F.2d 291 (9th
Cir' 1970)............."..o' 84

Strickland v. Washington, U.S.
_t 80 L.Ed .2d 674 (T964) ..

United Jewish Organizat,ions v.
Carey, 403 U.S. 144
(1977 ) ....... o............ - o

1X

99

68



Page
Cases

U.S. v. Bd. of Supervisors of
Forrest CountY, 57 1 F.2d
951 (5th Cir. 1978) ......... 56

U.S. v. Carolene Products Co.,
304 U.S. 144 (1938) ......... 71

U.S. v. Da1las CountY Commission,
739 F.2d 1529 (1984) 101

U.S. v. Executive Cornmitt,ee of
Democratic PartY. of Greene
County, Ala. 254 F. SuPP.

" 543 (S.D. AIa. 1956) ....'..o 84r85 "

U.S. v. Marengo CountY Commission,
731 F.2d 1516 (11th Cir.
1 984) 56 r57 ,85 r97 ,

110r131

Velasquez v. Cit,y of Abilene,
725 F.2d 1017 (5th Cir.
1980) ..............o....oo.. 56r97

Wallace v. House, 515 F.2d 519
(5th Cir. 1975) 56r59|66

Whit,comb v. Chavis, 403 U. S.
124 (1971) .................. 130

White v. Regester, 412 U.S.
75s (1973) 30, 31 ,48 ,52 r54 ,

59r81r101

Zimmer v. McKeithen, 485
F.2d 1297 (1973) .......... 55r58r98

x



STATEMENT OF THE CASEl

This is an action challenging the

districting plan adopted in 1982 for the

election of the North Carolina legisla-

ture. North Carolina has long had the

smallest percentage of blacks in its state

legislature of any state with a substan-
"tiaI black populati.on.2 Prior to this

litigation no more than 4 of the 120 state

representatives r oE 2 of the 50 state

The opinion of the district court as
repri nted i n the appe nd i x t,o the
Jurisdictional Statement has two signifi-
cant tlpographical errors. The Appendix at
J,S. 34a and 36a states, "Since then two
black cit,izens have run successfully in
the (Mecklenburg Senate district) ..."
and "In Halifax County, black citizens
have run successfuIly..." Both sentences
of the opinion actually read "have run
unsuccessfully." (Enphasis added) These
E-nd otner errors are detailed in a letter
from appellees' counsel t,o the Clerk dat,ed
August 30 , 'l 98 5.

See Joint Center for PoIitica1 Studies,
National Roster of Black Elected Of-
ficiaLs (1984) 14, 16-172 Pugh Px 4.



2-

senators, were black.3 Although blacks are

22.4t of the state populat,ion, the number

of bl_acks in either house of the North

Carolina legislature had never exceeded

4t. The first black was'not elected to

the llouse until 1958, and the f irst black

state senator was not elected untiL 1974-

North Carolina makes greater use of at

large legislative el.ections than most

other stat,es; under the 1982 districting

plan 98 of the 120 representatives and 30

of the 50 state senators were to be chosen

from multi-member districts.4

I n July 1 981 , following the 1 980

census, North Carolina initially adopted a

redistricting plan involving a total of

148 mul.ti-member and 22 single member dis-

srip. 96.

St,ip. Ex.
Sess. Laws

and EE, Chapters 'l and
2nd Extra Session 1982.

3

4 BB
of



tr icts . 5

3-

Under this PIan every single

House and SenaEe district had a white

majority.S There lrras a population devia-

t,ion of 22t among the proposed districts.

Forty of North Carolina's 1 00

counties are covered by section 5 of the

Voting Rights Act; accordingly, the state

was required to obtain preclearance of

those portions of the redistricting plan

which affected those 40 counties. North

Carolina submiEted the 1981 plan to the

At,t,o,rney Ge neral , who entered ob jections

to both t.he House and Senate plans, having

concluded that "the use of large multi-

member d istr i cts effectively srbmerges

cognizable concentrations of black

Stip. Ex. D and F, Chapters 800 and 821
Sess. Laws 1 981 .

The opinion stat,es one district hras
majority black in population. J.S. 5a.
This was in the second 1981 p1an, enacted
in October after this lawsuit r.ras filed.
Stip. Ex. L.



4-

population into a majority white elec-

torate.'t St,ip. Ex. N and O. For similar

reasons, the Attorney General also

objected to Article 2 Sections 3(3)and

5 ( 3 ) of the North Carolina Const'itution,

adopted i n 1967 but not submitted for

preclearance until after this lawsuit was

f i l ed , wh i ch f orbade t,he subdivis ion of

counties in'the formation of legislative

districts. StiP . 22.

Appellees filed this action in

September 'l 98 1 , a1leg i ng , i nter al ia , that

the 1 981 redistricting plan violated

section 2 of the Vot,ing Rights Act and the

Fourteenth Amendment. Following t'he

objections of the Attorney General under

sect io n 5 , Ehe state adopted tvro subse-

quent redistricting plans; the complaint

was supplemented to challenge the final

p1ans, which were adopted in Apri1, 1982.

Stips. 42 and 43. In June 1982 Congress



5-

ame nded section 2 lo f orbid elect,ion

practices with discriminatory results, and

the complaint was amended to reflect that

change; thereafter the litigation focused

primarily on the application of the

amended section 2 to the circumst,ances of

this case. Appellees contended that six

of the multi-member districts had a

discriminatory .result which violated

section 2, and that the boundaries of one

single member district also violated that

provision of the Voting Rights Act.

After an eight day trial before

Judges J. Dickson,Phillips, Jt., Franklin

T. Dupree, Jt., and w. Earl Britt, Jt.,

the court unanimously upheld Plaintiffsl
section 2 challenge. The court enjoined

elections i n the challenged districts
pending court approval of a districting
plan which did not violate section 2.7 By

Appellees did not challenge all multi-



6-

subsequent orders, the court approved the

State I s proposed remedial districts for
six of the seve-n challenged districts. The

eourt entered a temporary order providing

for elections in 1984 only in one dis-
trict, former House District No. 8, after
appellants I proposed remedial plan was

denied preclearance under section 5. fhe

remedial aspects of the litigation have

not been challenged and are not before

this Court.

On appeal appellants have disputed

the correct,ness of the t.hree judge

district courtrs decision regarding the

legaI it,y of f ive of the six disputed

multi-member districts. Although appel-

lants have referred t.o some facts from

member districts used by the state and
the district court did not rule that the
use of mult,i-member districts is per
se il1e9a1. The dlstrict court I s or66F
Faves untouched 30 multi-member districts
in -t,he House and 13 in t,he Senate.



7-

House District No. I and Senate District

No. 2t they have made no argument in their

Brief that is pertinent to t,he lower

court I s decision concerning either of

these districts.S Like the united states,

we as s ume that t.he correct ness o f the

decision below regarding House District

No .- 8 and Senate Dlstrict No. 2 is not,

within the scope of this aPPeal.

THE FINDINGS OF' THE DISTRICT COURT

The gravamen of aPPellees' claim

under section 2 is that minority voters in

the challenged multi-member districts do

not have an equal opportunit,y to Partici-
pate effectively in the political process,

The Court did not note probable juris-
diction as to Question II, t,he question in
the Jurisdictional Statement concerning
these t,wo districts, and even the
Solicitor General concedes that there is
no basis for appeal as to these two
districts. U.S.. Br. 11.



8-

and particularly that they do not have an

equal opportunity t,o elect candidates of

t,heir choice. Five of t,he challenged 1982

multi-member districts were t'he same as

had existed under the 1971 plan, and the

one that 'rras differentr House District 39,

was only modified sIight,Iy. The election

results in those districts are undisputed.

UntiL 1972 no black since Reconstruction

had been elected to the legislature from

any of the counties in question. The

election results since 1972 are seE forth

on the table on the opposite Page. As

that table indicat,es, prior to 1982 no

more than 3 of the 32 legislators elected

in any one election in the challenged

districts were blacki in 1981, when this

action was filed, five of the seven

districts were represented by all white

delegations, and three of the districts

still had never elected a black legisla-



BLACK CANDIDATES ELECTED

1972-1982

District
( Number
of Seats )

House I (4).

House 21 (5)

House 23 (3)

Eouse 35 (8)

House 39 (5)

Senate 2* (2)

Senate 22 (4)

mrErG"uI

Source: StiP.95

Prior
to

197 2

0

0

0

0

0

0

0

-''tr

197 2

0

0

1

0

0

0

0

197 4

0

0

1

0

1

0

1

-T

197 6

0

0

1

0

1

0

1

T

1 978

0

0

1

0

0

0

1

T

0

1

1

0

0

0

0

T

1980 1982

0

1

1

1

2

0

0

5

* Senate District
1980 election;
district which

2 was pdrt of a
but no county in
electe<l a black

two member district through the
Senate District 2 was ever in a

Senator.



9

tor. The black population of the chal-

lenged districts ranged from 21 '8t to

39.5t. J.S.19a.

The district' court held on the basis

of this record and its examination of

election results in local offices that

" It ] he overall result's achi'eved to date

... are minimal." J's' 37a; The court

noted t,hat, f ollowing the f iling of this

action, the nunber bf' successful black

legislative candidates rose sharply' It

concluded, however, that the results of

the 1g82 election were an aberration

unlikely to recur again' It emphasized in

part icular that in a number of inst'ances

'the pendency of this very litigat'ion

worked a one-time advantage for black

ca nd idate s i n t'he f orm of unusual organ-

ized poIitical suPPort by white leaders

concernedt'oforestallsing}e-member

districtirlg. " J.S. 37a n'27 '



10

The dist'rict court identified a

number of distinct' practices which put

black voters at, a comparative disadvantage

when placed in the six majority white

multi-member districts at issue ' The

courtnotedrfirstrt'hattheproportionof

white voters who ever voted for a black

candidatewasextremelylow;anaverageof
81* of white voters did not vote for any

blackcandidateinprimaryelections

involving both black and white candidates'

and those whites who did vote for black

candidates ranked them last or next to

last. J.S. 40a' The court noted that in

none of the 53 races in which blacks ran

for office did a majority of whites ever

vote for a black candidate' and the sole

election in which 50t voted for the black

candidate was one in which that candidat'e

was running unopposed' J'S' 41a-46a' The

district court concluded that' this pattern



11

of polarized voting Put black candidates

at a severe disadvantage in any race

against a white oPPonent.

The district court also concluded

that black voters were at a comparative

disadvantage because the rate of registra-

tion among eligible blacks ','ras substan-

tially lower than among whites. This

disparity further diminished the ability

of black voters to make common cause with

sufficient, numbers of like minded voters

to be able to elect candidates of their

choice. The court found that these

disparities in registrat,ion rates rrrere the

lingering effect of a century of virulent

official hostility towards blacks who

sought, to register and vote. The tactics

adopted Eor the exPress PurPose of

disenfranchising blacks included a poll

tax, a literacy test with a grandfather

clause r ES well as a number of devices



12

which discouraged registrat,ion by assuring

the defeat of black candidates. J.S.

23a-24a. When the use of the state

literacy test ended after 1970, whites

enjoyed a 60.6t to 44.68 registration

advantage over blacks. Thereafter regis-

tration rdas kept u.naccessible in many

places, and a decade later the gap had

narrowed only s1ight,lY, with white

registration at 66.7*, and black regis-

tration at 52.71. J. S . 24a and n.22.

The t,rial court held that the ability

of black voters to elect candidates of

Lheir choice i n ma jorit,y white districts

was further impaired by the fact that

black voters were far Poorer, and far more

often poorly educated, t,han whit,e voters.

J.S. 27a-29a. Some 30t of blacks had

incomes below the Poverty 1ine, compared

to 1 0t of whites; conversely, whites were

twice as 1ikely as blacks to earn over



13

$20r0OO a year. Almost all blacks over 30

years oId attended inferior segregated

schools. J.S. 28a. The district court

concluded that this lack of income and

education made it, difficult for black

voters to elect candidates of their

choice. J.S. 29a n.23. The record on

which Ehe court relied included extensive

testimony regarding the difficulty of

raising sufficient funds in the relatively

poor black community to meet Lhe high cost

of an at-Iarge campaign, which has to

reach as many as eight times as many

voters as a single district campaign. (See

notes 107-109, infra).

The abilit,y of minority candidates to

win white votes, the district court found,

was also impaired by the common practice

on the part of white candidates of urging

whites to vote on racial lines. J.S.

3'l a-3 2a . The record on which the court



14

relied included such appeals in campaigns

in 1976, 1 980, 1982, and 1 983. (See Page

116, infra).. In both 1980 and 1983 white

candidates ran newsPaPer advertisements

depicting t,heir opponenEs with black

leaders. In 1 983 Senator He1ms denounced

his opponent for favoring black voter

registrat,ion, and in a 1982 congressional

run-off white voters were urged to go to

the pol1s because the black candidate

would be "bussing" Isic] his "block" Isic]
vote. (See pP. 1 1 6-1 8, infra) .

The district court, after an exhaus-

tive analysis of this and other evidence,

concluded that the challenged multi-member

districts had the effect of submerging

black voters as a vot,ing minority in those

districts, and thus affording them "less

opportunity than other members of t'he



15

electorate to Participat,e in the political

process a nd t'o elect representatives of

their choice." J.S. 51a-52a.9

SU!'IMARY OF ARGUIT'IENT

Section 2 of the Voting Rights Act

was amended in 1982 to establish a

nat ionwide prohibi.tion against elect'ion

practices with discriminatory results.

Specifically prohibited are practices that'

afford minorities "less opportunity than

other members of the electorate to

participate in the political Process and

t-o elect representatives of their choice".

(Emphasis added). In assessing a claim oi

unequal electoral opportunity, the courts

are required t,o consider the "totality of

circumstances". A finding of unequal

Based on similar evidence the court made a
para1leI finding concerning the fracturing-of the minority community in Senate
District No. 2. J.S. 52a.



16

opportunity is a factual finding subject

to Rule 52 "

Citv, U.S. ( 1985) .

- The 1982 Senat,e RePort sPecified a

number of specif ic factors t'he presence of

which, Congress believed, would have the

effect of denying equal electoral oppor-

t,unity tp black voters 'in a majority white

multi-member distri"ct. The t'hree-judge

district court below, in an exhaustive and

detailed opinion, carefully analyzed the

evidence indicating the Presence of each

o f t,hose f actors . In light of the

totality of circumstances established by

that evidence, the trial court concluded

that minority voters were denied equal

electoral opportunity in each of t,he six

challenged multi-member districts. The

court below expressly recognized t,hat

section 2 did not require proportional

representat,ion, J.S. 1 5a.



17

Appellant,s argue here r ds they did at

trial, that the presence of equal elec-

toral opportunity is conclusively estab-

lished by the fact blacks won 5 out of 30

at-1arge seats in 1982, y months after

the complaint $ras filed. Prior t,o 1972'

however, alt,hough blacks had run, no

blacks had ever been elected from any of

these districts, and in lhe election held

immediately.prior to the commencement of

this action only 2 blacks were elected in

the chal1e nged districts. ?he district

court properly declined to hold that the

1982 elections represented a concrusive

change in the circumstances in the

districts involved, noting that in several

instances blacks won because of supPort

from whites seeking Co affect the outcome

of the instant litigation. J.S. 37a

n.27 .



18

The Solicitor General urges this

Court to read into section 2 a per se rule

that a section 2 claim is precluded as a

matter of law in any district in which

blacks ever enjoyed "proportional rePre-

se ntation" , regardless of whet,her that

representation ended years agor was

"inextricably tied to single shot voting,

or occurred only after the commencement of

the litigation. This Per se approach is

inconsistent with the "totalit'y of

circumstances" requirement of section 2|

which precludes treating any single factor

as conclusive. The Senate RePort ex-

pressly stat,ed that the election of black

of f icials lvas not to be treated, bY

itself, as precluding a section 2 claim.

S. Rep. No. 97-417, 29 n.115.

The district court correctlY held

that there was sufficiently severe

polarized vot,ing by whites to put minority



19

voters and candidat,es at an additional

disadvantage in the majority white

multi-member districts. On the average

more than 81t of whites do not vote for

black candidates when they run in primary

elections. J.S.40a. Black candidat'es

receiving the highest proPortion of black

votes ordi narily receive the smallest

number of whit,e votes. Id.

ARGUI,TENT

SECTION 2 PROVIDES MINORITY VOTERS
AN EQUAL OPPORTUNITY TO ELECT REPRE-
SENTATIVES OF THEIR CHOICE

Two decades ago Congress adopted the

Voting Rights Act of 1965 in an attempt to

end a century long exclusion of most

blacks from the electoral Process. In

1 98 1 and 1982 Congress concluded that,

despite substantial gains in registration

since 1955, lninorities still did not enjoy

the same opportunity as whites to parti-

I.



20

cipate in the political Process and to

elect representatives of their choicerl0"nd

t,hat, further remedial legislation leas

necessary to eradicate alI vestiges of

discrimination from the political Pro-

"."".11 
The problems identified by Congress

included not only the obvious impediments

to mi nority participationi such as

registration barriers, but also election

schemes such as those at-Iarge elections

which impair exercise of t'he franchise and

dilute the voting strength oE minority

citizens. Although some of these practices

had been corrected in cert,ain jurisdic-

tions by operation of the preclearance

provisions of Section 5, Congress con-

10

11

S. Rep. No. 97'417t 97th Cong., 2d
34 ( 1982) (hereinafter cited as
Report" ) .

Senate RePort 40; H.R. ReP. No.
97th Cong., 1st Sess., 31 ( 1981 )

inafter cited as "House RePort")

Sess. ,
" Senate

97-227 |
( here-



21

cluded that Eheir eradication required the

adoption, in the form of an amendment to

Section 2, of a nationall2p.ohibition

agai nst practices with discriminatory
1'!

result.s. '' Section 2 protects not only the

right to vot,e, but also "the right to have

the vote counEed at fu11 value without

dilution or discount.' Senate Report 19.

A. Leqislative Hist,ory of the 1982
Amendment t,o secc].on z

The present language of section 2 was

adopted by Congress as Part of Ehe Voting

Rights Act Amendments of 1982. (96 Stat.

1 31 ) . The 1982 amendments alt'ered the

Voting Rights Act in a number of ways,

12 House Report, 28; senate Report 15.

1 3 Appellants and the Solicitor General
concede t,hat the framers of the 1982
amerdments established a standard of proof
i n vote dilution lawsuiEs based on
discriminatory results alone. APpellants I

Br. at 16; U.S. Brief II at 8, 13.



extending the pre-clearance requirements

of section 5, modifYihg the bailout

requirements of section 4, continuing

unti I 1gg2 the language assistance

prov i s io ns of t'he Act , and add i ng a new

requirement of assist,ance to bl ind '

disabled or illiterate voters' Congres-

s ional action to atnend section 2 was

prompted by this Court,'s decision in

Mobile v. golden, 446 U.S. 55, 50-61

( 1 980 ) , which held that the original

language of section 2, as it was framed in

1 965, forebade only election practices

adopted or maint,ained with a discrimina-

tory motive. Congress regarded t,he

decis ion in Bolden as an erroneous

interpretation of section 2r 1 4and thus

acted t,o amend the language to remove any

such intent requirement,.

1 4 House Rep. at 29i Senate RePort at 19.



23

Legislative proposals to extend the

Voting Rights Act in 1982 included from

the outset language that would eliminate

the intent requirement of Bolden and aPPly

a total ity of circumstances test to

practices which merely had the effect of

discrimi.nat,ing on Lhe basis of race or

"olor.15 
Support for such an amendment was

repeatedly voiced during the extensive

House hearings and much of this testimony

$ras concerned with at-Iarge election plans

that had the effect of diluting the impact

o f mi nor i ty ,rot"" . 1 5 on July 3 'l the House

H.R. 3112r 97th Cong., 1st Sess., S 201;
H.R. 3198, 97th Cong., 1st Sess., S 2.

The three volumes of Hearinqs before the
Subcommittee on Civil and Constitutional
Rights of the House Judiciary Committee,
97th Cong. , 'lst Sess. , are hereinaf ter
cited as "House Hearings. " Testimony
regarding the proposed amendment to
section 2 can be found at 1 House
Hearings '18-19, 138, 197t 229, 365,
424-25, 454, 852; 2 House Hearings 905-07,
993-95 , 1279, 1361 , 1641 ; 3 House tlearings
1 880 , 1991 | 2029-32, 2036-37, 2127-28,
2136, 2046-47 , 2051 -58.

't 5

16



24

Judiciary Committee approved a bill t,hat

extended the Voting Rights Act and

included an amendment to section 2 lo

remove the intent requirement imposed by

Bolden. l 7 The House version included an

express disclaimer to make clear that the

mere lack of proportional rePresentation

would not constitute a violation of the

Iaw, and t,he House Report directed the

courts not. t,o focus on any one factor but

17 House Report t 48:

nNo voting qualification or prere-
quisit,e co voting, or standard , practlce,
or procedure shal1 be imposed or applied
by iny state or political subdivision Ito
d-ny or abridgel in a-marner which results
in i denial oi -a

-- .-any citizen to vot'e on account ot race or
co1or, or in contravention of the guaran-
tees set forth in section 4(b)(2). The
fact that members of a minority grouP

the oopulation shall not r lD ano or



to

in
at

25

look at all the relevant circumstances

assessing a Section 2 claim. H. ReP.

30.

The House RePort set forth the

committee's reasons for disapproving any

i ntent requirement, and described a

variety of practices, Particularly t,he use

of at-large electionslS.nd Iimi.tations on

the times ard places of registrationrlgwith

whose potentially discriminatory effects

the Committee tras particularly concerned.

On t,he floor of the House the proposed

amendment to section 2 was the subject of

cons iderable debate. Represe ntat ive

Ro_d i no expres sIy called the attention of

the llouse t,o this portion of the bill ,UOro

which he and a number of other speakers

18

19

20

House Report , 17-19,

rd. 14, 16, 17,30,

128 Cong. Rec. H 6842
1981).

30.

31 n.'105.

(daily ed. Oct. 2,



gave suppor E.21

26

Proponents of section 2

emphas ized its aPPIicability to multi-

member election districts that diluted

minority votes, and to burdensome regis-

tration and voting practicer.22 A number of

speakers opposed t,he proposed alteration

to section 2,23 and Representative BIiley

moved that the amendment to section 2 "be

deleted from the House bi11. The BIiley

128 Cong. Rec. H 6842 (Rep. Rodino), H

6843 (Rep. Sensenbrenner), H 6877 (ReP.
Chisholm) (daily ed., Oct. 2, 1981) i 128
Cong. Rec. tl 7007 (ReP. Fascell)(daily
€d., Oct. 5, 1981) '
128 Cong. Rec. H 6841 (Rep. Glickman;
dilution), H 6845-6 (Rep. Hyde; registra-
tion barriers), H 6847 (ReP. Bingham;
voting practices, dilution); H 6850 (ReP.
Wash ington, registration and voting
barriers); H 6851 (ReP. Fish, dilution)
(daily ed., Oct. 2, 1981).

128 Cong. Rec. H 6866 (ReP. Collins), H

5874 (ReP. But,ler)(daiIy ed., Oct. 2,
1981); 128 Cong. Rec. H 6982-3 (ReP.
B1 iley) , H 6984 (ReP. Butler, (ReP.
i'tcClory), H 5985 (ReP. Butler) (daily ed.,
Oct. 5,1981).

21

22

23



27

amendment was defeated on a voice oot".24

Following the rejection of that and other

ame ndme nts the House on October 5 , 'l 981

passed the bill by a margin of 389 to 24.25

On December 16, 198'l , a Senate biIl

essentially identical to the House passed

b i 1I was i ntroduced by Senator tttathias.

The Senate bilI, S.1992, had a total of 51

i nit ial sponsors, l.t 
more than were

necessary to assure Passage. 2 Senate

Heari ngs 4, 30, 157. The Particular

subcommittee to which S.1992 was referred,

however, was dominated by Senators who

were highly critical of the Votinq Rights

Act amendments. After extensive hear-

1 28 Corg. Rec.
5, 1981).

Id. at H5985.

H 6982-85 (dailY ed., Oct.24

25



28

ingsr25most of them devoted to section 2,

the subcommittee reconmended passage of

S.1gg2, but by a margin of 3-2 voted to

delete the proposed amendment to section

2. 2 Senate Hearings 10. In the fuI1

committee Senator Dole proposed Ianguage

which largely restored t,he substance of S'

1g92; i ncl uded i n t,he DoIe proposal was

t,he language of section 2 as it v'as

ult.imately adopted. The Senate Commmitcee

issued a 1e ngthy report describing in

detail the purpose and impact of the

section 2 amendment. Senate Report 15-42'

Ihe report expressed concern with two

distinct, types of practices wi-th poten-

tially discriminatory effects--firstr E€-

restrictions on t.he times, PIaces or

26 rd. Hearings before the Subcommitee on
EH'e Constitulion of t'he Senate Judiciary
Committee on S.53, 97th Cong., 2d Sess.
( 1 982) (hereinafter cited as "Senate
Hearings" ) .



,)o
-J

methods of registration or voting, the

burden of which would fa1l most heavily on
27minoriti€s,-' and, second, electlon systems

such as t,hose multi-member districts which

reduced or nullified the effectiveness of

minority votes, and impeded the abilit,y of

minority voters to elect candidates of

their choice.28 The Senate debates leading

to approval of the section 2 amendment

ref lected similar 
"o.r""tn".29

The Senate report discussed the

various types of evidence that would bear

on a section 2 c1aim, and insisted that

the courts were to consider aI1 of this

evidence and t,hat no one type of evidence

27

28

29

Senate Report, 30 n.1 1 9.

Senate Report, 27-30.

28 Cong. Rec. S 5783 (daiIy ed. June 15,
982)(Sen. Dodd); 128 Cong. Rec. S 7111
daily ed. June 1 8, 1982) (Sen. Met-

zenbaum), S7113 (Sen. Bentsen), S 7116
(Sen, Weicker), S 7137 (Sen. Robert
Byrd).



30

should be treated as conclr"i.'..30 Both the

Se.nate Report and the subsequent debates

make clear that it, was the intent' of

Co ngress , i n applying t,he amended sect'ion

2 to multi-member dist'ricts, to reestab-

lish what it understood to be the totality

of circumstances Lest that had been estab-

lished by.White v.Regesfer, 412 U.S. 755

(1973)r31and that had been elaborated upon

by the lower courts in the years between

white and Bolde n.32 The most important and

the courts of aPPeaIs

Zimmer v. trtcKeithenr33

frequently cited of

dilution cases was

Senate RePort,

Senate RePort,

Senate RePort,
31 , 32.

23, 27.

2, 27, 28, 30, 32.

16, 23, 23 n'78, 28, 30,

30

31

32

33 Ziruner was described by the Senate Report
Ts--e-Ttseminal" decision, 1d. at 22, and
was cited 9 times in the nSort. Id- at
22, 24, 24 n.86, 28 n.112, 28 n.113, 29
n.115, 29 n.115, 30, 32, 33. Senator
DeConcini, one of the framers of the Dole
proposal, described Zimmer as " [p]-erh-aps-the- clearest e xpre s s i6ii-6E-th e s t a nd ard o f



31

485 F.2d 1297 (5th Cir. 1973)(en banc),

Schoolaff'd sub nom. East Carroll Parish

.Board v. Marshall , 424 U.. S. 636 ( 1 976 ) .

The decisions applying White are an

important source of guidance in a section

2 dilution case.

The legislaEive history of section 2

focused repeatedly on the possibly

discriminatory impact of multi-member

districts. Congress was specificallY

concerned that, if there is voting along

racial lines, black voters in a majority

white multi-member dist,rict would be

unable to compete on an equal basis with

whites for a role in electing public

officials. Where that occurs, the white

ma jority is able t,o determine the outcome

of elections and whit,e candidates are able

the clearest expression of the standard of
proof in these vote dilut,ion cases.n 128
Cong. Rec. S6930 (dailY ed. June 17 ,
1982) .



32

to take pos itions without regard t'o the

vo E,es or pref erences of black voters '

rendering the act of voting for blacks an

empt,y and ineffective ritual' The Senat'e

R epor t de s cr ibed i n detai I the t'ypes of

circumstances, based on the white/limmer

factors, under which blacks in a multi-

member d ist,rict would be less able than

whites to elect rePresentatives of t'heir

choice. Senate RePort , 28-29 '

lhe SoI icit'or General i in support of

his contention that a section 2 claim may

be decided on the basis of a single one of

t,he seven Senate Report factors--electoral

success--regardless of the totality of the

c i rcumst,a nces , off ers an account of the

legislative history of section 2 which is'

in a number of respects' substantially

inaccurate. First, t'he SoIiciEor asserts

that, when the amended version of S' 1992

was rePorted to the fuII JudiciarY



33

Committee, there was a "deadlock." U.S.

Br. I, 8; Br. II, 8 n.12. The }egislative

situation on May 4, 1982 when the DoIe

proposal was offered, could not conceiv-

ably be characterized as a "deadlockr n and

was never so described by any supporter of

the proposal. lhe entire JudiciarY

Conmittee favored reporting out a bill

amending the Vot,ing Rights Act, and fu1Iy

two thirds of the Senate was committed to

restoring the House results test if the

Judiciary Committ,ee failed to do so.

Critics of the original S.1992 had neither

the desire nor the votes to bottle uP the

bill in Committeer34"nd clearly lacked the

votes to defeat, the section 2 amendment on

the floor of the Senate. The leading

34 2 senate Hearings
(" IW] hatever haPPens
amendment, I intend to
report,ing of the Voting
Comnittee" )

69 ( Sen. Hatch)
to the proposed

support favorable
Rights Act by this



35

language proposed by Senator Dole and

u1t imately adopted by Congress li/as

i nte nded not to $rat,er down the orig inal

House bilI, but merely to spell out more

expl icit,ly Lhe intended meaning of

leg islation already .approved by the
38HOUSe.

The So"licitor urges t,he Court to give

I it,tle weight to the Senate Report,

accompa nyi ng s.1992, describing it as

proposed compromise is not likely to be
one whit, different than the unamended
House measure" relating to section 2i
Seriate Report, 95 (additional views of
Sen. Hatch), 128 Cong. Rec. (dai1y ed.
June 9, 1982) S 5515, S.5545 (Sen. Hatch);
128 Cong. Rec. (daily ed. June 10, 1982) S

6725 (Sen. East); 128 Cong. Rec. (daiIy
ed., June 15, 1982) S"6786 (Sen. Harry
ayrd).

38 The compromise language was designed to
reassure Senat,e cosponsors that the White
v. Regester totality of circumstances-EEE
endoi5ed in the House, and espoused
throughout the Senate hearings by sup-
porters of the House passed bi11, would be
codified in the statute itself. 2 Senate
Ilearings 60; Senate Report , 27 .



34

Senate opponent of the amendment acknowl-

edged that passage of the amendment had

been foreseeable "for many months" prior

to the fu11 Committee's action.35 Senator

DoIe commented, when he offered his

proposal, thaE "without any change the

IIouse b i 11 would have passed. " 2 Senate

Heari ngs 57 . Both supporter"35"rrd oppo-
.37nents-'of section 2 alike agreed that the

2 Senate Flearings 59 (Sen. Hatch).

Senate Report, 27 (section 2 "faithful to
the basic intent" of the House bill); 2
Senate Hearings 50 (Sen. Dole) (" IT]he
compromise retqins the results standards
of the Mathias/Kennedy b111. However, we
also feel that the legislation should be
strengthened with additional language4delineating what legal standard should
apply under the results t,est...n) (Empha-
sis added), 61 (Sen. Dole) (language
"s(rengthens the House-passed bi1l") 68
(Sen. Biden) ( new language merely nclari-
fies" S.1992 and "does not change mucho),
128 Cong. Rec. S6960-61 (daily ed. June
17, 1982) (Sen. DoIe); 128 Cong. Rec.
H3840 (daily ed. June 23, 1982)(Rep.
Edwards).

2 Senate Hearings 79 (Sen. Hatch) ( "The
proposed compromise is not a compromise at
all, in my opinion. The impact of the

35

35

37



36

merely the work of a faction. U.S. Br. l,

8 n.5; U.S. Br. TI, 8 n.12t 24 n.49"

Nothing in the legislative history of

s ect io n 2 supports the SoI i citor I s

suggestion that this Court should depart

from the long established principle t,hat

committee reports are t'o be treated as the

most authori.tative guide to congressional

intent. Garcia v. United Stat,es, 105

S.Ct. 479, 483 (1984). Senator Dole, to

whose position the Solicitor would give

particular weight, prefaced his Additional

Views wieh an acknowledgement that "[T]he

Committee Report is an accurate statement,

of the intent of 5.1992, as reported by

the Committee. n39 on the floor of the

SenaEe both supporters and opPonents of

39 senate Report 193; see also id. at 196 ("I
express my views noE to tat-e issue with
the body of the report") 199 ("I concur
with the lnterpreEation of t,his action in
the Committee Report."), 195-98 (addi-
tional views of Sen. Grassl.Y).



37

section 2 agreed t,hat the Committee rePort

constituted the authoritative explanat,ion

of the legislation.40 until the filing of

its briefs in this case, it was t'he

consistent contention of the DepartmenE of

Justice that in interpreting section 2

" It] he Senate Report... is entit,led to

greater weight than any other of the'

legislative history."41 only in the spring

of 1 985 did the Department reverse its

position and assert that, the Senate report

$ras merely t,he view of one faction that

128 Cong. Rec. 56553 (daiIy ed. , June 9,
1982) (Sen. Kennedy); S5546-48 (daily ed.
June 10, 19821 (Sen. Kennedy); 56781 (Sen.
DoIe)(daily ed. June 15, 1982)i S6930-34
(Sen. DeConcini), S6941-44, 56967 (Sen.
Mathias), S6960, 6993 (Sen. Dole), S6967
S6991-93 (Sen. Stevens)r S6995 (Sen.
Kennedy) (daiIy ed. June 17 , 1 982) ;
S709 1-92 (Sen. Hatch) , S7095-96 (Sen.
Kennedy) (daiIy ed., June 18, 1982).

Post-Trial Brief for the United States of
America, County Counqil q!_Sumter County,
South'C

40

41



38

"cannot be taken as determinative on all

counts." U.S. Br. Tt P. 24, n.49. This

newly formulated account of the legisla-

tive history of section 2 is clearly

i ncorrect .

The Solicitor urges that substantial

weight be given t,o the views of Senator

Ila.tchr42 urrd his legislative assistant.43 In

f act, however, Senator Hatch $ras the most'

intransigient congressional critic of

amended sect,ion 2t and he did not, as the

In an amicus brief in CttV Councif of tne
City of Chicaqo v. Ketchum, No. 84-627,
referred to rn hrs brlet ln Enrs case,
U.S, Br. lT 21 n.43, the Solicitor asserts
that Senator llatch "supported the com-
promise adopted by Congress.r Brief for
United SLates as Amicus, 16 n.'15.

The Solicitor cites for a supposedly
authoritative summary of the origin and
meaning of section 2 an article written by
Stephen lularkman. U.S. Br. II, 9, 10.
l*lr. Markman is the chief counsel of the
Judiciary Subcommit,tee chaired by Senator
Hatch, and hras Senator Hatchrs chief
assistant in llatch's unsuccessful opposi-
tion to the amendment to section 2.

42

43



39

proPosal. On the contrary, S€nator Hatch

urged the Judiciary Committee to reject

the DoIe Proposalr44and was one of only

four Committee members to vote against

it.45 r'ol1owing t,he Committee's action,

Se nator Hatch aPPended t,o the Senate

Report Additional Views objecting to this

modifidd version of section 2-46 on the

floor of the Senate, S€nator Hatch

supported an unsuccessful amendment t,hat

would have st,ruck f rom the bill the

amendment to section 2 that had been

adopted by the Committeer4T"nd again

denounced the language which eventually
48became Iaw.

44 2 Senate nearings 70-74.

45 ra. B5-80.

46 Senate Report, 94-101.

47 128 Cong. Rec. 55965 (daily ed. June 17,
1982).

48 Inunediately prior t,o the f inal vote on the
bi 11 , S€nator Hatch st'ated , " these



40

Final}y, the Solicitor urges t'hat the

views of the President regarding section 2

shouId be given "particular weight"

because the President endorsed the Dole

proposal, and his "suPPort for the

compromise ensured its passage." U'S' Br'

I, 8 n.5. we agree with the Solicitor

General that the construction of section 2

which the DePartment of Justice now

proposes in its amicus brief should be

considered in light of the role which the

Administration played in the adoption of

this Iegislation. But that role is not,

as the Solicitor asserts, one of a key

sponsor of the legislation, without whose

support t,he bill could not have been

adopt,ed. On the contrary, the Adminis-

amendments promise to effect a destructive
transformaCion !n the Voting Rights Act.''
28 Corg. Rec. 571 39 ( daily ed . June 18,
982\i 7ZA Cong. Rec. (daily ed. June 9,
982) S6506-21.



41

tration in general, and the Department of

Justice in particular, were throughout the

leg i slative process among the most

consistent, adamant and outspoken oPPo-

nents of t,he proposgd amendment to section

2.

ShortlY after the Passage of the

House biII, the Administration launched a

concerted aEtack on the decision of t'he

House to amend section 2. On November 6,

1981, the President, released a statement

denouncing the "new and untested teffectsl

' standard r " and urging that section 2 be

l imi t,ed to i nstances of purposef u1

discriminationr 2 Senate Hearings 763t

a position l'1r. Reagan strongly reaff irmed

at a press conference .on December 17.49

When in January 1982 the Senate commenced

hearings on proposed amendments to the

49 New York Times, Dec.
co1. 4.

18, 1981, p. 87,



42

Voting Rights Act,, the Attorney General

appeared as the first witness to denounce

section 2 as "just bad legislation"'

objecting in particular to any Proposal to

apply a results standard t'o any state not

covered by section 5. 1 Senate Hearings

70-97. At the close of the Senate

Hear i ngs i n earIy. Irlarch. the Assistant

Attorney General for Civil Right's gave

extensive test,imony in oPPosition to the

adoption of the totality of circumstances,/

results test. Id., 8t 1655 et seq' Both

Justice Department officials made an

effort to solicit public opposition to the

results test, publishing crit'icaI analyses

in several national newsPaPet=50"nd, in the

case of the Attorney General, issuing a

50 2 Senat,e Hearings 770 (Assistant At-
torney General Reynolds) (Washington
post ) I 77 4 (Attorney General Smit'h) (

Op-ed articler New York Times), 775
(ittorney General Smith) ( op-ed article,
Washington Post).



43

warning to members of the United Jewish

Appeal that adoption of a . results t'est

would lead to court, ordered racial quo-

t"s.51 The white llouse did not endorse the

DoIe proPosal until after it had the

support of 1 3 of the 1 I members of the

Judiciary Committee and Senator Dole had

warned publiely that he had the votes

necessary to override .nY tr"to.52

I{aving failed t,o persuade .Congress to

reject a results standard in section 2,

the Department of Justice no$' seeks to

persuade this court to adopt an interpre-

tation of section 2 that would severely

limit the scope of that provision. Under

these unusual circumstances the DePart-

ment's views do not appear to warrant the

Id. at 780.

Ios Angeles Times, MBY
St,reet Journal , MaY
Senate Hearings 58.

1982, P. 1; WaIl
1982r P. 8; 2

51

52 4l
4,



44

weight that might' ordinarily be aPPro-

priate. we believe that greater deference

should be given to the views expressed in

an amicus brief in this case by Senator

Dole and the other principal cosponsors

of section 2.

B. Equal Electoral OPqorlunitY is
the Statutory scanoaro

Section 2 Provides that a claim of

unlawful vote dilution is established if,

"based on the totality of circumstances,"

members of a racial minority "have less

opportunity than other members to partici-

pate in the political Process and to elect

representatives of their choice'"53 rn the

instant case the district court concluded

that minority voters lacked such an equal

opportunitY. J.S. 51-52a.

53 42 u.s.c. s
forth in the

1973, Section 2(b) is set
opinion be1ow, J.S. 11a.



45

Both appellants and the Solicitor

General duggest, however, that section 2

is limited to those extreme cases in which

the effect of an at-large election is to

render virtually impossible the election

of public officials, black or otherwise,

f avoEed by rni nority voters. thus appel-

lants assert that section 2 forbids use of

a nulti-member district when it "effec-

livety locks the racial minority out of

t,he pol itical f orum, ' A. Br. 44 , or

"shut Is'] racial minorities out of the

electoral process" f9. at 23. The Soli-

citor i nvites the Court to hold that

section 2 applies only where minority

candidates are neffectively shut out of

the political process". U.S. Br. II 27i

see also id. at 11. On this view, the

election of even a single black candidate

would be fatal to a section 2 c1aim.



46

The requirements of section 2 |

however, are not met by an election scheme

which merely accords to minorities some

minimal opportunity to participate in the

polit,ical process. Section 2 requires

Lhat " t,he poI i tical processes leading to

nomi nat,ion or election" be, not merely

ope n t,o mi nor ity voters and candidates,

but, "gggg$J open". (Emphasis added). The

prohibition of section 2 is not limit,ed to

those systems which provide minorities

wi t,h no access whatever to the pollt,ical

process, but extends to systems which

afford minorities "less opportunity than

other members of the electorate to

participat,e in the political process and

to elect representatives of t,heir choice."

(Emphasis added).

This emphasis on equality of opport,u-

ni ty rrras re i terated throughout the

legislative history of section 2. The



Se na te

47

report insisted repeatedly t,hat

opportunity.54

section 2 required equality of pol it ical

in hisSenator Dole,

54 s. Rep. 97-417 ' p. '16 ("equa1 chance to
part,icipate in the electoral processn;
"equal access Eo t,he electoral process")
20 ( "equa1 access Eo the political
process"; at-large elections invalid if
they give minorities "less opportunity

. than ... other residents to participa.te in
the pol it,ical processes and to elect
legislators of their choice"), 21 (plain-
tiffs must prove they "had less opportu-
nity than did other residents in the
district to participate in the political
processes and t,o elect legislators of
their choic€" ) , 27 (denial of "equa1
access to the political process"), 28
( mi nority voters Eo have " the same
opportunity to participate in the politi-
cal process as other citizens enjoy";
minority voters entitled to'an equal
opportunity to participate in t,he
politcal processes and to elect candi-
dates of their choice"), 30 ("denial of
equal access t,o any phase of the electoral
process for minority voters"; standard is
whether a challenged practice noperated
to deny the minorit,y plaintif t an equal
opportunity to participate and elect
candidates of their choice" i process must
be "equally open to participation by the
group in question"), 31 (remedy sh<;ruId
assure "equa1 opportunity for minority
citizens t,o participat,e and to elect
candidates of their choice" ) .



48r-

Addit,ional Views, endorsed t,he committee

report, and reit,erated that under the

language of section 2 minority vot,ers were

to be given "the same oPportunity as

others to participate in the political

process and to elect the candidates of

their choi".'.55 Senator DoIe and others

repeatedly made this.point on t,he floor' of

the senate. 56

The standard announced in" Wirite v.

Regest,er was clearly one of equal opPor-

tunity, prohibiting at-large elect,ions

which afford minority voters "Eg
opportunity than .. . other residents in

Id. at 194 (emphasis omitted); See also
Ta. at 193 ("citizens of all rE'66s-ffi
6Etitled to have an equal chance of
electing candidates of t,heir choice. ... "),
194 ( "equaI access to the political
process).

128 Cong. Rec. S6559, S6550 (Sen.
Kennedy)(dai1y ed. June 9,1982)i daily
ed. June 17 , 1982\ i 128 Cong. Rec.
S7119-20 (Sen.. DoIe), (dai1y ed. June 18,
1 982) .

55

56



49

the d i s t,rict to particiPate in the

polit,ical processes and to elect legisla-

t,ors of t,heir choice. " 412 U.S. at, 765.

(Emphasis added). The SoliciEor General

asserts that during the Senate hearings

three supporters of section 2 described it

as "merely a means of ensuring that

minorities were not effectively rshut ogt'

of the electoral process". U.S. Br. II,

1'l . This is not an accurate description

of the testimony cited by the Solicitor.5T

57 David Walbert stat,ed that minority
voters had had 'no chance' to win elec-
t io ns i n t,heir earl ier successf uI
dilution cases, 1 Senate Hearings 626,
but, also noted t,hat the standard under
White was whether minority voters had an
@1 opportunity" to do so. rd. Senator
Ke nnedy stated that under Section 2
minorities could not be "effectively shut
out of a fair opportunity to participate
in the eIEEon". Id. at 223. Clearly a
" fair" opportunitf is more Lhan any
minimal opportunity. Armand Derfner did
use the words 'shut out", but not, as the
Solicitor does, followed by t,he clause "of
the political process" . Id. at 81 0. More
importantly, -both in hiforal statement
(id. at 796, , 800) and his Prepared
sE-tement ( id. at 81 'l , 81 8 ) Itir. Derf ner



50

Eve n i f i t, trere, t,he remarks of three

witnesses would carry no weight where it,

was in conflict with the express language

of the bill, the committ,ee report, and the

consistent statements of supporters. Ernst

and Ernst v. Hochfelder, 425 U.S. 185, 204

n.24 (1976) .

fhe central argument advanced by t,he

Solicitor General and the appellants is

that the elect,ion of a black candidate in

a multi-member district conclusively

est,ablishes t,he absence of a section 2

violation. The Solicitor asserts, U S.

Br. I 1 3 -1 4, that it is not sufficient

that, t,here is underrepresentation now, or

expressly endorsed the equal opportunity
st,andard.



51

t,haL there was underrepresentation for a

century prior to the filing of the action;

on t,he Solicitor's view there must at all

times have been underrepresentat'ion. Thus

t,he Sol icitor insists there is no vote

dilution in Senate District 22, which has

not elected a black since 1978, and that

there .can be no vote dilution in House

District 36, because, of eight rePresen-

tatives, a single black, the first t'his

century, was elected there in 1982 after

this Iitigation was fiIed.

lhis interpretation of section 2 is

plainly inconsistent, with the language and

I eg i s 1a t ive fr i story of the s tatute .

Section 2 ( b) directs the courts to

consider 'rthe totality of circumstancesr'

an admonition which necessarily precludes

giving conclusive weight to any single

circumstar,.e. 58 The "totarity of circum-

58 The solicitorrs argument also flies in the



52

stances" standard was taken from White v'

Regester, which Congress intended to

codify in sect'ion 2. Ihe House and Senate

reports both emphasize E'he importance of

considering the totality of circumstances'

rather than focusing on only one or two

portions of the record. Senate Report 27 '

34-35; House RePort, 30 ' The Senate

Report sets out a number of "[t]ypical"

faceors to be considered in a dilution

case r 
5'of which "the extent to which

members of the minority grouP have been

face of the language of section 2 which
disavows any intent t,o establish Propor-
tional representation. On the SoIiciEor I s

"i.*, ete-n if there is in f act a denial of
equai opportunity, blacks- cannot prevail
i; a slction 2 action if t'hey haver oE

have ever had, proPortional rePresenta-
tion. Thus proportional representation,
spuinea by Congress as a measure of
fiability, would be resurrected by the
Solicitofceneral as a type of affirmative
defense.

59 The factors
beIow. J. S.

are set out in the oPinion
1 3a.



5J

elected t,o public office in the juris-

diction" is only oll€r and admonishes

nthere is no requirement that any partic-

ular number of factors be provedr oE t,hat

a majority of them point one way. or the

other.' Senate Report 28-29.60 'senator

DoIe, in his additional views accomPanying

the committee report, makes this p1ain.

"The extent to which members of a Pro-

tected class have been elected under the

challenged practice or structure is just

one factor, among the totality of circum-

stances t,o be considered, and is not

d i spos i tive. " f.9. at 194 - ( Emphasis

added).51

See also Senate Report 23 ( "not every one
of the factors needs t,o be proved in order
to obtain relief").

128 Cong. Rec. 56961 (dai1y ed. June 17,
1982) [Sen. oole); 128 Cong. Rec. S7119
(daily ed. June 18, 1982) (Sen. DoIe).

60

51



54

The arguments of appellants and the

Solicitor General t'hat any minority

electoral success should foreclose a

section 2 claim were expressly addressed

and rejected by Congress. The Senate

Report explains, "the election of a few

mi nority candidat,es does not 'necessarily

f oreclose the possibil it'y of dilution of

the black vote. ' " Id. at 29 n' 1 1 5 ' Both

White v. Regester and its progeny, as

Congress well knew, had rePeatedlY

disapproved the contention not" advanced by

appelrants and the soli"itot.62 rn white

itself, as the Senate RePort noted, a

t,ota1 of two blacks and Eive hispanics had

62 "The results test, codified by the
committee bilI, is a well-established
one, familiar to the courts. It has a
re I iabl e and reassuri ng t'rack record,
which complet,ely bel,ies.ctaims that it
trotitrouTd make proportlonal reDresentraEa-

-
ong. Rec.

S6559 (Sen. Xennedy) (daily ed. June 9,
1 982) .



55

been elected from the two multi-member

districts invalidated in that case. Senate

Report 22. Zimmer v. l'lcKeichen, in a

passage quoted by the Senate Report, had

refused to treat 'a minority candidaters

success at the po1Is [a]s conclusive." Id.

at 29 n.115. The decision ln Zimmer is
part,icularly important because in that

case the court ruled for the plaintiffs

despite the fact that blacks had ,rron

two-thirds of' the seats in the most recent

at-large election. 485 F.2d at 1314. The

dissenters in Zimmer unsuccessfully made

the same argument now advanced by appel-

lants and the Solicitor, insisting nthe

election of three black candidates ...
pretty well explodes any notion that black

voting strength has been cancelled or

minimized". 485 F.2d at 1310 (CoIeman,

J., dissenting). A number of other

lower court cases implementing White had



56

also refused t,o attach conclusive weight

to the election of one or more minority
. 63eand ].daEes .

There are, as Congress anticipated, a

variety of circumstances under which t,he

election of one or more minority can-

didates might occur despite an absence of

Trril. See also Senator IIollings'
conunents on t,he district court, decision in
McCain v. Lybrand, No.74-281 (D.S.C.
eE?iI-Tz,-T9T-fiTEnding a votins rishts
violation despite some black participation
on the school board and other bodies. 128
Cong. Rec. S6865-66 (dai1y ed. June 15,
1975). In post-1982 section 2 cases, the
courts have also rejected the contention
that the statute only applies where
minorities are completely shut out. See
e.q., united States v. Marenqo Coui6
cToltnissi67731
eiil-TgM) , cert. denied, 105 s.ct. 375

F. 2d 1017 ,

(1984); Velasquez v
?.2d 1017, 1 023 ( 5r(

of Abilene, 725

Treen, 574 F. Supp. 325
TEE'F-ee- judge court ) .

53 Kirksev v. Board of Supervisors, 554 F.2d
Cross v.

Baxter, 604 F. 2d 875, 880 n..7 , T6feffir
ffil 979); united' states v. Board of
Suoervisors o

al}ace v.
House, 515 F.2d 619, 623 n.ftEI-TTii



54

57

the equal electoral opportunity required

by the statute. A minority candidate

might simply be unopposed in a primary or

general election, or be seeking election

in a race in which there were fewer white

candidates than t,here were positions to be

fiIIed.54 white officials or political

The Solicitor General suggests that the
very fact that a black candidate is
uropposed conclusively demonstrates that
the candidate or his or her supporters
hrere simply unbeatable. U.S. Br. IIr 22
n. 46, 33. But, the number of white
potential candidates who choose to ent,er a
particular at-Iarge race may well be the
result of personal or political considera-
tions entirely unrelated to the circum-
stances of any minority candidate.
Evidence that white potential candidates
were deterred by the perceived strengt,h of
a minority candidate might be relevant
rebuttal evidence in a section 2 action,
but here appellants offered no such
evidence to explain the absence of a
sufficient number of white candidat,es to
contest all the at-large seats. Itore-
over, in other cases, the Department of
Justice has urged courts to find a
violation of section 2 notwit,hstanding the
election of a black candidate running
unopposed . See Uni ted S tates v . I{arengo
Countv Commis-4
@indings of Fact and
Conclusions of Law for the United States,



58

Ieaders, concerned about a pending or

threatened section 2 action, might

engineer the election of one or more

minority candidates for the purpose of

preventing the imposition of single member

district=.55 The mere fact that minority

candidates t ere elected would not mean

that Ehose successfu'I candidates were the

representatives preferred by minorit,y

filed June 21, 1985, P. 8.

55 zimmer v. lrlcKeithen, 485 F.2d at 1307:

"Such success might, on occasion, be
attributable E,o t,he work of Poli-
ticians, who, apprehending that t,he
support of a black candidate would
be politically expedient,, campaign
to insure his election. Or such
success might be attributable to
political suPPort motivated bY
di f ferent considerat,ions--namely
that election of a black candidate
will thwart successful challenges to
electoral schemes on dilut,ion
grounds. In either sit,uation, a
candidate could be elected despite
the relative po1 itical backwardness
of black residents in the electoral
district. rr



59

voters. The successful minority candi-

dates might have been the choicer ES in

White v. Rggester, 412 U.S. at 755i Senate

Report, 22, of a white political organiza-

tionr or might have been able to win and

retain office only by siding wit.h the

white community on, or avoiding entirely,

those issues about which whites and

non-whites disagreed. Even where minority

voters and candidaLes face severe inequal-

iEy in opportunity, t,here will occasion-

ally be minority candidates able t,o

overcome t,hose obstacles because of

exceptional ability or 'a rstroke of luck'

which is not likely to be repeated....'56

The election of a black candidate may

also be the result of "single shootiDg',

which deprives minority voters of any vote

at all in every at-large election but one.

56 wallace v. House, 515 F.2d 619, 623 n.2
ffi



50

In multi-member elections for the North

Carolina General Assembly where there are

no numbered seats, voters may typically

vote for as many candidates as there are

vacancies. Votes which they cast for their

second or third favorite candidates,

howeverr rllay result in the victory of that

candidat,e over the voters' f irst choice.67

Where voting is along racial Iines, the

only way minority vot,ers may have to give

preferred candidates a serious chance of

victory is to cast onlY one of their

ballots t ot nsingle shoot, r and relinquish

any opportunity at aI1 to influence the

67 rnis is especially true in North Carolina
where, because of Ehe multiseat electoral
system, a candidate may need votes from
more than 50t of the voters to win. For
example, in the Forsyth Senate primary in
1980, there were 3 candidates fot 2 seats.
If the votes were spread evenly and all
voters voted a fulI slate, each candidate
would get votes from 2/3 or 67* of t,he
voters. In such circumstances it would
take votes from more than 67t of the
voters to win. N.C.G.S. 163.1'l 1(a) (2).



5'l

election of the other at-large officials.58

This is the functional equivalent of

a rule which permitEed white voters to

cast five ballots for five at-large seats,

but required black voters t,o abnegate four

of t,hose ballots in order to cast one

ballot for a black candidate. Where

single shot voting is necessary to elect a

black candidate, black voters are forced

to limit their franchise in order Lo

compete at all in the political Process.

For example, in 1978, in Durham County,
99t of the black voters voted for no one
but the black candidate, who won. 'Px 11,
app. 3. In Wake County in 1978, approx-
imately 80t of the black voters supported
the black candidate, but because not
ernugh of them single shot vot,ed the black
candidate lost. The next year, after
substantially more black voters concen-
trated t,heir votes on the black candidate,
forfeiting their right to vote a fuIl
slate, the first black was elected.
Sinilarly in Forsyth County when black
voters voted a full slate in 1980, the
black candidate lost. It h,as only after
many black voters declined t,o vote for
any white cardidates that black candidates
were elected in 1982. Id.

58



62

Black voters may have had some opportunity

to elect one representatove of their
choice, but they had no opportunit,y

whatever to elect or influence the

election of any of the ot,her representa-

tive=.59 Even here the election of one or

more blacks suggests the possible exis-

t,ence of some electoral gpportu"nities for
minorities, the issue of whether t,hose

opportunities are the same as the oppor-

59 there is no support, for appellants' claim
that whiEe candidates need black support
to win at-Iarge. Black votes were not
necessary for successful white can-
didates. Because of the necessity of
single shot voting,'in most instances
black voters rrrere unable to affect the
outcome of other than the races of the few
blacks who won. For example, white
candidates in Durham were successful with
only 5t of the votes cast by blacks in
1978 and 1982, in Forsyth, whit,e can-
didates in 1 980 who received less than 2t
of the black vote were successful, and in
[lecklenburg in 1982, the leading white
senate candidate rron the general elec-
tion although only 5t of black voters
voted for him. See, €.9., T.851.



53

t,unit ies af forded to whites can only be

resolved by a dist,inctly local appraisal

of all other rel_evant evidence.

These complex possibil ities make

clear t,he wisdom of Congress in requiring

that a court hearing a section 2 claim

must consider nthe totality of circum-

stancesr" rather than only considering the

extent to which minority voters haver oE

have not, been underrepresented in one or

more years. Congress neither deemed

conclusive the election of minority can-

d idates , nor directed that such vic-
tor ies be ignored. 70 The ranguage and

Iegislative history of section 2 recognize

the potential significance of the election

70 As in other areas of civil rights, the
results test in section 2 no more requires
proof that no blacks ever win elections
than Lhe effect rule in Title VII requires
that no blacks can ever pass a particular
rron-job related test. See Connecticut
v. TeaI , 457 U.S. 440 ('1982)-



64

of minority candidates, but require that

the significance of any such elections be

carefully assessed from a local vantage in

order to determine what Iight, Lf dDY,

those event,s shed, in .t,he context of all

relevant circumstancesr oo the section 2

claim at issue.

II. THE DISTRICT COURT REQUIRED NEITHER

gcFss

Appellants fIatIY assert that the

d i s tr i ct court i n this case int,erpreted

section 2 lo "creat Ie] an affirmative

entitlement to Proportional representa-

tion". A. Br. 1 9. The district court

opinion, however, simply contains no such

construction of section 2. On the

contrdEy, the lower court expressly held

Lhat section 2 did not require Propor-

t,ional representation, emphasizing that

" the fact that blacks have not been



65

elected under a challenged districting
plan in numbers proportional to their

percentage of the population" "does not,

alone establish that vote dilution has

resuLted. r J. S. 1 5a.

Appellants suggest in the alternative

thaL the district court "apparenElyn

equa.ted th.e equal opportuhity required by

section 2 wit,h "guaranteed electoral

success r' A. Br. 14, 't 5, 35. Again, how-

everr rro such rule of law is espoused in

any portion of the opinion below. The

ultimate factual findings of the district

court are not cast in terms of the lack of

any such guarantee; rather the trial court

concluded that section 2 had been violated

because minority voters had "Iess opportu-

nity than do other members of the electo-

rate to participate in the political

process and to elect representatives of

their choice.n J.S. 52a.



66

The SoI icitor argues that, because

the facts as he personally views them did

not violate section 2t the three trial
judges must have been applying an incor-

rect, albeit unspoken, int,erpretat,ion of

section 2. Thus the Solicitor asserts that

since the trial court

could not reasonably have found a
violation under the ProPer ...
standard, Iit] rather must, implicit,ly
have sought to guarantee G-ilETfiffil
minority electoral succesg. (U.S. BE.
II, 7l (Emphasis added1.71

But t,he dist,rict court, whether or not t,he

Solicitor thinks it reasonable, found as a

matter of fact that blacks do not enjoy

the same opportunity as whites to partici-

pate in t,he political process. The

71 See also U.S. Br. Tt 12 (in Iight of
Solicitor's view of the fact,s, misinter-
pretation of the law is "t,he only expla-
nation for t,he district courtrs conclu-
sion", 18 n.19 (district court "in effect"
interpreted section 2 as imposing a
"proportional representation plus' stan-
dard).



67

SoI ici t,or ' s argument is simply an attempt

to transform a disagreement about the

relevant facts, a disagreement in which

the trial court I s findings would be

subjest to RuIe 52, into an issue tf Iaw.

If the trial courtrs factual findings are

clearly erroneous they can, of course, be

reversed on appeal. But if both those

factual findings and the lega1 principles

announced by the district court are sound,

the resulting judgment cannot be over-

turned by hypothesizing that the three

trial judges here were purposefully

applying legal principles different than

those actually set forth in their opinion.

Al though t,he trial court expressly

construed section 2 not to require

proportional representation, appellees

suggest , A. Br. 19-20, t,hat the lower

court implicitly announced that it was



58

applying just such a requirement in t,he

following passage:

The essence of racial vote dilution
in Ehe white V. Regester sense is
this: rmuse of rhe
interaction of substantial and
persistent racial polarization in
voting patterns (racial bloc vot,ing)
with a challenged electoral mechan-
ism, a racial minoritY with dis-
tinctive group inE,erests that are
capable of aid or amelioration bY
government is ef fectively deni.ed the
political power to further those
interests that numbers alone would
presumptively, see United Jewish
Orqanizations V. Carev , 403 U.S.

veitina
voting constituency not raciallY
polarized in its voting behavior.
See Nevett v. Sides, 571 F.2d 2O9l
Tf3ffi. 1978). J.s.
'l 4a.

This passdg€r which is immediately

preceded by discussion of t,he totality of

circumstances test, and followed by an

exposition of t,he stat,utory disclaimer

proh ibi t,i ng proportional rePresentation,

asserts only that, in the absence of vote

dilution, black voters would Possess the



59

abilit,y to inf luence the policies of their
elected officials, not, as appellants

cIaim, that black voters would be certain'

to elect black officials "in proportion to

Eheir presence in the population'. A. Br.

20. The portion of Nevett v. Sides

referred to by the district court dis-
cusses the extent to which black voters,

in the absence of polarized voting, would

have the pol itical power to assure that

their interests were protected by white
72ofrlclats.

Appellees in this case did not seek,

and the trial court did not requitorT' urry

72

73

Nevett v. Sidesr 571 F.2d at 223 n.15.

Indeed appellants proposed the plan now in
effect for all the districts at issue,
which was adopted by the court without
modification. See supra, at 5-6.



70

guarantee of Proportional rePresentation,

and proportional rePresentation did not

result from the decision beIow.74

III. THE DISTRICT COURT APPLIED THE
CORRECT STANDARDS IN LEVALUATING
THE EVIDENCE OF' POI,ARIZED VOTING

fn deEermining whether a method of

election violates section 2, a trial court

must evaluate 't,he extent to which voting

in t,he elections of the state or political

subdivision is racially polarized." S.
,tr

Rep. at 29. '' The court below evaluated the

Prior to this lit,igation only 4 of the 170
menbers of the North Carolina legislature
rrere black; today there are still only 15
black members, less than 1 0t, a far
smaller proport,ion than the- 22.4t of the
population who are black. whites, who are
75.8t of the state population, still hold
more than 90t of the seats in the legis-
lature.

RaciaI bloc vo.ting is significant in a
section 2 case because, in the context of
an electoral structure wherein the number
of votes needed for election exceeds the
number of black voters, it substantially
diminishes t,he opportunity for black
voters to elect candidates of their

74

'75



71

lay and expert testimony on this question

and found trt,haE within all the challenged

dist,rictq racially polarized voting exists

in a persistent and severe degree.' J.S.

App.38a. Appellants argue that this

finding is erroneous as a maLter of Iaw.

Appellants, A. Br. 35, and the

Solicitor' U.S. Br.. II 39, contend that

the court erroneously defined racialiy

polarized voting as occurring "whenever

Iess than a majority of white voters vote

for the black candidate. " But the

district court, guided by the Senate

report and in accordance with the experts

for appellants and appellees, in fact

defined racially polarized voting as the

choice, drxl it alIows white candidates to
ignore the interests of t,he black com-
munity and still get elected. See Unit,ed
tate3 v. Carolene product,s co.]-30':[-0lS

three
judge court).



7 2-

extent to which black and white voters

vote different'IY from each other in

relation t,o the race of t'he candidatesiT6

The court focused not onlY on the

ex i ste nce but the degree of polarized

voting. As articulated by the court' the

relevant question is whether a substantial

enough number of white citizens do not

vote for black candidates that the

polarization operates, under the election

method in guestion, to diminish the

opportunity of black citizens to elect

candidates of their choice' J'S' 14a-15a'

76 senate Report, 29i J.s. APp. 3?tt nl29'
t. 50, i+Oa. See also CitY of Bqmq v'
United St'ates, 445 U.sffi
mng 472 F. SupP - 221 , .226
io. o.'c. 197g) ( 'iRacial bloc voti'ng is a

situation *here, when candidates of
rtifferent races are running for the same

office, the voters will by and large vote
for Lhe candidate of their own rac€' ) "
Accord, 128 Cong. Rec' 51120 (Sen'
DoIe ) (dailY ed. June 1 8, 1 982 ) '



73

41a. This inquiry is plainly consistent

with the statutory language of Section 2'

A. SummarY of t,he District Courtrs

Ihe District Court examined a number

of factors in determining that voting was

severely raciallY Polarized.

1. The court examined the Percent-

^g.77of 
white and black voters who voted

for the black candidates in each of 53

primaries and general elections in which a

black candidate had run during the t'hree

election years prior to the trial. J.S.

41a-46a. The court found that r oIl the

average, 81.7t of white voters did not

77 epPellants conceded t,hat the method used
t6-assess the exEent of racially polarized
voting is standard in the Iiterature and
that the statistical analysis performed by
appellees' expert eras done accurately, T.
77, 1445.



74

vote for any black candidate in the

primary elections, and napproximately two

thirds of whit,e voters did not vote for

black candidates in general elections even

after the candidate had won the Democratic

primary ang the only choice was to vote

for a Republican or no.one." J.S. 40a.

2. The district court determined how

often the candidat,es of choice of white

voters and of black voters $rere dif ferent.

A1 though, in primaries, black voters

ranked black candidates first or first and

second, white voters almost always ranked

them last or next to the Iast. Px 11,

App. 3. I n general elections, white

voters almost always ranked black can-

didates either last or next to last in the

multi-candidate field except' in heavily

Democratic areas, in t,hose Iat,ter, "white

voters consistently ranked black candi-

dates lasL among Democrats if not last or



75

next, to last among all candidates. " J.S.

40a. If white voters as a grouP are

selecting different candidates than black

voters as a grouP, assuming black voters

are in a minoritY, the Polarization

d irni ni shes t,he chances that the black

voter's candidate will be elected. T.

162-163. In fact, the court found that in

all but two of the election contests, the

black candidates who were the choice of

black voters were ranked last or near last

such that they lost among white voters.

J. S. 40a, n. g t .78

3. The court considered statistical

analyses of the degree of correlation

between the race of voters and Ehe race of

candidat,es whom they supported. The race

of the voter and the race of a candidate

78 In describing this analysis the court
used the term rsubstantively signifi-
cant". J.S.39a-40.



75

vrere very closely correlaEed. T9 The court

found that the probability of such

correlat,ions appearing by'chance was less

than 1 in 100r000. J.S. A. 38a and n.30.

AppellanLs' expert agreed with t,his

determination. Ti 1445.

B. The extent of racial polarization was

Eg

In addition to t,heir mischaracteriza-

tion of the courtrs analysis, appellants

propose a novel standard for assessing the

degree of polarized voting. Appellant,s

co nte nd that racial polarization of

voting has no lega1 significance unless it

79 Expert witnesses for appellants and
appellees agreed that the correlation
coefficient is E,he standard measure of
whether black and white voters vote
differently from each other. T. 60,
1445. Correlations above an absolute value
of .5 are relatively rare. The corre-
lations in Lhis case had absolute values
between .'7 and .98, with most above .9.
J.S. A.39a, n.30.



77

alwavs causes blacks to 1o"..80 A. Br. 35,

40. Under apPellants I st,andard, a theory

not. adopted in any vote dilution case they

cite r dnY minority electoral success

precludes a finding of racially polarized

voting and bars a section 2 violation, a

result clearly contrary to t,he inEent of

Congress. E S. ReP. at 29, n.115 and

pp. 50-54, +PI1. Appellees know of no

80 The Solicitor General does not adopt
appellants' proposed standard, but
aiiiculates the inquiry as whet,her "the
impact of racial bloc voting in combina-
tion with the challenged procedure
here, multimember districts -- deprives
black voters of equal access t'o t'he
electoral process...' U.S. Br. 31-32-
Assuming that the Solicitor General
i ncludes with "equal access to the
electoral process", as t,he statutory
1a ng uage of section 2 does r drl equal
opportunit,y to elect candidates of black
voters' choice, the Solicitor General does
not disagree with the district courtrs
concept,ion of the question. The Solicitor
General simply. disagrees with district
courtrs finding of fact as to ics answer.



78

court which has adopted appellants I

proposed standard in a section 2 case.

Ot,her courts have f ound polari zed

voting sufficient to support a violation
of section 2t despite a finding of some

electoral success. In Mcltlillan v.

Escambia County ,7 48 F.2d 1 037 , 1043, 1 045

( 1 1th Cir. 1984) (l'lcMillan II) , the .court

found racially polarized voting and a

violation of section 2 despite some black

electoral success, based on a finding that

'a consistent majority of the whites who

vote will consistently vote for the

black's opponent. " See also Major v.

Treen, 574 F. Supp. at 339.

In fact,, in 55t of the election

contests analyzed here in which the black

candidate received substantial black

support, the black candidate did lose

because of racial polarization in voting.



79

That is, he lost, even though he was the

top choice of black voters, because of the

paucity of support among whit,e voters.

Appellants I statement that, rtwo thirds of

alI black candidates have been success-

fuln, A. Br. 45, is misleading since it

only counts black candidates who made it

to the general elections and ignores the

many black candidates who lost in the

Democratic primaries. Furthermore, of

white Democrats who made it to the general

election, 100t lrrere successful in 1982,

and about 90t rrrere successful in earlier

election years. Px 1 9.

Appellants rely on Boggfq_v.__Lgqgqr

458 U.S. 613 (1982) and two post-Egifg

lower court cases, all involving claims of

discriminatory intent under the Fourteenth

Amendment,. We do not read the cit,ed cases

to hold that racial polarization is

legally significant only if it uniformly



80

causes electoral defeat.81 But this Court

need not consider, in the context of this
case, whether appellants I bold assertion

is correct. Assuming arguendo t,hat proof

of absolute exclusion may be necessary to

raise an i nference of discriminatory
i ntent, it is not necessary to .show that,

black citizens .have "less opportunity"

than do wh ites t,o elect candidates of

their choice.

81 The lower court in Rogers v. Lodge. found
racial bloc voting b@lysis
that included an election in which a black
had won a city council seat. Lodge v.
Buxton, Civ. No. 176-55 (S.D. fa':-E'df
%li,-TfrA) slip. op. at 7-8. In NAACp v.
Gadsden County School Board , 691 Fllld-979

ing of uncon-
stitutional vote dilution r^ras upheld
despite the election of one black can-
didate to t,he school board , a leve1 of
electoral success similar to Ehat present
here in House District 21 and House
District 36.



81

Appellees were not required to prove
Eha-whIEat votersr failure t'o vote
for black candrdat,es was raclarJ.y

rrt.motrvated.

Appel la nts contend t,hat proof that

white voters rarely or never vote for

minorit,y candidates does not estabLish the

presence of polarized vot,ing. Rather, they

urge , a plai ntif f mirst, adduce probative

evidence of the motives of the individual

white vot,ers at issue, and must est'abLish

that those voters cast their ballots with

a conscious intent,ion Eo discriminate

against minority candidates because of the

race of those candidates.S2 A. Br. 42-44-

82 appetlants argue in particular that proof
of motives of the electorate must take the
form of a multivariate analysis. (App.Br.
43-44). No such multivariate analysis was
presented in @ or anY of
Lhe other diIuffih Congress
referred in adopting section 2. Although
appellants nolr, urge that evidence of a
multivariate analysis is essent,ial as a
matter of law, no such contention was ever
made to the district court.



82

This proposed definition of polarized

voting would incorporate into a dilution
claim precisely the int,ent reciuirement

which Congress overwhelmingly voted to
remove from section 2. The legislative

history of section 2 is replete with

unqualified statements Ehat no proof of

discriminatory intent would be required in

a section 2 case, and Congressr reasons.

for objecting to the intent requirement in

Bolde n are equally aPpl icable t,o the

intent requirement now proposed by
. 83appel rants .

83 the reasons set out in the Senat,e Report
for rejecting any intent requirement were
re i Eerated by individual members of
Congress. Senate RePort 193 (additional
views of Sen. Dole); 128 Cong. Rec. (daily
ed. June 9, 1982) 56560-51 (Sen. Kennedy);
128 Corg. Rec. (daily ed. June 15, 1982)
56779 (Sen. Specter), 128 Cong. Rec.
(daily ed. June 17, 1982) S5931 (Sen.
DeConcini); S6943 (Sen. l'lathias); S6959
(Sen. Mathias); 128 Cong. Rec. (daily ed.
June 18, 1982) 57109 (Sen. Tsongas) i 57112
(Sen. Riegle); S7138 (Sen. Robert Byrd).



83

Congress opposed any intent require-

ment, first, because it, believed that the

very 1i t igatlon of such issu€s wou.Id

inevitably stir uP racial animosiai.",

i ns ist i ng that inquiries into racial

motives "can only be divisive.n Senate

Report 35. Congress cont,emplated that

u nder t,he section 2 results test the

courts would not be required t,o "brand

individuals as racist." Id. The divisive

effect of lit,igation would be infinitely
great,er if a plaintiff were required to

prove and a federal court were to hold

that, the entire white citizenry of a

community had acted with racial motives.

Second, Congress rejected t,he intent

test because it created ran inordinat,ely

difficult burden for Plaintiffs in most

cases. ' ( S. Rep. 35 ) The Senat,e Committee

expressed particular doubts about whether



84

it might be legally impossible to inquire

into the motives of individual voters,

!]., and ref erred to a then recent- Fifth

Circuit decision holding that the t'irst

Amendment forbade any judicial inquiry

into why a specif ic vot,er had voted in a

particular ,ray.84 Congress thought it

unreasonable to require plaintiffs to

establish t,he motives of loca1 of f icials;

establishing the motives of thousands of

white voters, none of whom keeP anY

records of 'rrhy t,hey voted, and all of whom

are constitutionally immune from any

inquiry into their actions or motivations

in casting their ballotsr85 would clearly

84 rd. 36 n.
JEckson,

1 35, citing Kirksey v. City of
6g,i F.2,il 5tffi

85 See also Anderson v. t{il1s, 664 F.2d 600,
6T-Fr(6mSourh Alameda
spanrsn speaKrncl uECto v.uffiFn

EiiEed States v. Executive Committee of
a,



85

be an infinitely more dlfficult task.86

Counsel for appellant,s contend that,

the plai ntif f s iri a section 2 action

should be required to establish the

motives of white voters bY means of

statistics, but at trial appellants'

statistician conceded it would be impos-

sible to do 
"o.87

(5-.lF1981 ) , af f 'd 459 u. s. 1 59
( 1e82) .

Appellants' expert testified that many of
the variables which he considers im-
p,ortant, such as a candidate's skills or
posit,ions on the issues, are not quanti-
f iable. tle did not suggest how such an
analysis could be Performed, and he

254 F. Supp. 543, 546 (S.D. Ala. 1966).

86 The courts have consistently entered
f i nd i ng s of racially polarized vot,ing
without imposing the additional burdens
now urged by appe1lant,s. See t'lississippi
Reoublican-executiveCommiTEej-v--E-r5o]C

TEEmmary lEirmance af district. court
using correlat,ion t,est). See also Bggers
v. Iodge, supra, 458 U.S. @
erouffi, sqp,ra , 731 F.2d at 1557-nE
Fa"ffifr3 v.-Ftv of west Helena, 675 F.2d

mem.459
u.S. 801 ( 1982) ; CitY of 6iEn?TE'ur v.
United States, 5

87



86

Third, Congress regarded the presence

or absence of a discriminatory motive as

largely i.rreleqint 'to the problem with

which section 2 was concerned. Senate

Report 35. The motives of whiLe voters

are equally.beside the point. The central

issue in a dilution case is whether, not

why, minority voters lack an equal

opportunity to elect candidates of their

choice.

fn appellantrs viewr polarized voting

occurs only when whites vote against black

candidat,es because of their race, but not

when whites consistently vote against

black candidates because those candidates

conceded he had never performed one. T.
1420t 1458, 1450. Even McCleskey v. Zant,
580 F.supp. 338 (N.D.ca@3
F.2d 877 ( 5t,h cir. 1985) , certffiding,
No. 84- r orl which appe-Tla-ants--ETf
holds tffi-lsuch regression analyses are
incapable of demonstrat,ing racial intent
where, as herer "gualitative" nonquantifi-
able differences are involved.580 F.
Supp. at 372.



-,87 -

are not able t,o Purchase exPensive media

campaigns or obtain endorsements fiom

Iocal newspapers. The reasons appellants

present as a legitimate basis for whites

not voting for black candidates are almost

invariably race related. In the instant

case, f or examPle, the inabilit,y of black

cand idates to raise large campaign

contributions had its roots in the

discrimination that has impbverished most

of the black community. An election system

in which black candidates cannot win

becaqrse their supporters are poor r ot

because local newsPaPers only endorse

whites, or because of white hostility to

any candidate favoring enforcement, of

civil rights 1aws, is not a sYstem in

which blacks enjoy an equal opportunity to

participate in t,he political Process or

elect candidates of their choice.88

88 Moreover, to require a district court to



88

D. The Dlstrict Court's finding of
the extent ot raclal].v porarlzeo
votinq 1s not clearlv erroneous.

Based on the analysis summarized in

Part III A, supra, the trial judges found

"that in each of the challenged districts

racial polarization in voting exists to a

substantial or severe degree, .and t'hat in

each district it, presently operates to

minimize the voting strength of black

voters.' J.S. App. 46a.

The Solicitor contends that the dis-

trict court ignored possible variations in

the extent of polarized voting, asserting

determine which ostensible reasons are
Iegitimate and which are race related
would be exact,ly the type of subjective,
motivational analysis Congress sought to
avoid. If such an analysis were relevant,,
even the Solicitor General agrees Ehat it
is not necessary in order to establish a
prima facie case, but it is the defen-
dants' burden to Prove it, on rebuttal.
U. S . Br. 30, n.57. No such evidence hras
offered here



89

the district court adoPted a de-
finit,ion of racial bloc voting
under which racial Polarization
is nsubstantively significant"
or .'severe' whenever nthe
results of t,he individual
election would have been
different dePending uPon whether
it had been held among onIY the
white voters or onlY the black
voters in the election. U.S. Br.
r, 29.

The Solicitor argues t,hat lrnder this

definition elections in which only 49t of

whites voted for a black would be held to

be nseverely racially polarized". U.S.

Br. 29. (Emphasis in original). This

argument rests on a misrepresentat,ion of

the language of the opinion below. The

quoted reference to differences in the

preferences of black and white voters

appears on Page 39a of the opinion, where

the dist,rict court correctly notes the

presence of such differences in this case.

The term 'severe" does not aPpear in thaL

passage at all, but is used on the next



90

page in a separate paragraph to describe

elections in which 81.7t of white voters

declined to vote for any black candidate.

J. S. 40a. The opinion of the district
court clearly distinguishes t,he presence

of any differences between black and white

voters from a case in. which whites

overwhelmi ngly opposed the candidat,e

preferred by black voters, and equally

clearly characterizes only the latter as

'severe. n

The primary evidentiary issue

regard i ng polarized voting t,hat must. be

resolved in a section 2 dilution case is

whether the degree of polarization was

sufficiently severe as to materially

impair the ability of minority voters to

elect candidates of their choice.89 In

89 While appellants do not challenge the
method appellees I expert used to analyze
t.he election returns in general, T. 7'7,
1 4 4 5 , appellants claim t,hat appellees '
regression analysis is flawed by what



91

concluding that such impairment had been

shown, the court relied on the extensive

fact findings noted above, including the

fact on average 81.7t of white voters do

not vote for any black candidate in a

primary election. The polarization ldas

most, severe in House District, 8, where an

average .o f 92..7 t of whit,e vo'ters do not

vote for any black candidate'in a primary,

J.S.45a-46a; the district court correctly

they labeled the "ecological faIlacy. "
They assert that instead of using turnout
figures, appellees' expert used voter
registration figures. A. Br. 41. Not
o nly $ras this argument made to the
district court and rejected, J.S. 39a,
o.29, but also it is not, accurate.
Appellees' expert, DE. Grofman, did have
turrput figures for each precinct, and he
used a regression analysis to calculate
the turnout figures by race. Px 12 at pp.
3-8. In fact, appellants' expert admitted
that he did not know what method Dr.
Grofman used to calculate turnout, T.
1 441 -3 , and he, therefore, could not
express an opinion about the accuracy of
the method.



92

noted that in that district it was

mathematically impossible for a black

candidat,e ever to be elected J.S. 45a.

In the other districts, the degree of

polarization was sufficiently severe to be

a substantial impediment, aithough not

necessarily an absolut,e bar, to the

election of minority candidates. The

average portion of white voters willing to

support a black candidate in a primary was

1 8t. The proportion of voters that was

white ranged from 70.5t to 84.9t. J.S.

19a. In each of the disputed districts

, the number of whit,e voters who in prima-

ries do not, support the black candidate

favored by the black conmunity constituted

a majority of the entire e1ectorate.90

90 Given the small percentage of black
voters, the failure of this number of
whites to vote for black candidates
presented a substantial barrier. The
lower the black population of the dis-
trict, the more white voters it takes
voting for the black candidate to make it



93

Under those circumstances, the elect,ion of

candidates preferred by black voters,

wh i I e nb t, mathematically " impossib'Ie, ls

obviously extremely difficult.

Appellants attack Ehe lower courtrs

finding of substantial polarized voting by

selectively citing the record. Of the 53

elections discussed by the trial court,

possible for him to win. Moreoverr Do
evidence was presented to show that the
extent of racial polarization was declin-
ing. T.87 , 95.

Here, however, while there are a large
number of black citizens, because they are
submerged into such large multimember
districts, they are a small percentage of
the L,o tal electorate . For example , i n
llouse District 35 (Mecklenburg County),
there are 107r006 black residents, Px
4(b), more tha'n enough for t,wo whole House
Districts, Stip. 42, but because they are
submerged into an eight, member distrlct,
they are only 25.5t of the populati.on.
Because the percentage of the registered
voters in each of the districts which is
black is relatively Iow, ranging from 1 5t
to 29\ t it t,akes I ittle polarizat.ion t,o
impede materially the abilit,y of the black
community t,o elect candidates of its
choice.



94

appellant,s refer only to 8. A. Br. 36-38.

In most instances, appellants emPhasize

t,he election at which white supPort for a

black candidate was the highest of any

election in that district.9l The highest

proportion of white support for minority

candidates. cited by appellants were in the

1982 Durham County general elections and

the 1982 Mecklenburg County primary. (A.

Br. 35-37), but there were no Republican

candidates in the 1982 general election in
Durham County, and in the 1982 Mecklenburg

County primary there were only seven white

candidates for eight positions in the

primary. J.S. 44a, 42a. Thus the white

votes of 47* and 50t in those two races

represent the number of whites willing to

vote for an unopposed black instead of not

voting at all, rather than the proportion

91 This is true of examples (a)
( j ) in Appellantsr Brief.

(b) (h) (i) and
rd.



95

o f wh i t,es will i ng t,o suPport i n a con-

tested election a minority candi,ilate

favored by the minority community.

IV. TTIE DISTRICT COURT FINDING OF UNEQUAT
ELECTORAL OPPORTUNITY WAS NOT CLEARLY
ERRONEOUS

A. The Clearly Erroneous Rule Applies

Appellants cont,end that, even if the

district court was applying the correct

legal standard, t,he court I s subsidiary

factual f indingsr iIS well as its ultimate

f inding that, minorit,y vot,ers do not enjoy

an equal opportunity to elect candidates

of their choice in the disputea districts,

\{ere mistaken. Appellants correctly

describe these contentions as presenting

a " f actual question .n92 The lower court,s

92 A. Ba. 25i see also id. at 35 ("no matter
how one weights anffieighs t,he evidence
presented, it does not add uP to a denial
of equal access"), 26 (disputed trial
court findings made "in spite of the
factsn), 29 (" [n]othing in the record ...
supports" a disputed finding) , 30 n.1 2



96

have consistently held that a finding

under section 2 of unequal political

opportunity is a factual finding subject"

to the Rule 52 "clearly erroneous" tula.93

The courts of appeal consldering constitu-

tiona.L vote dilution claims prior to

Bolden also applied the clearly erroneous

rule to findings .of the trial court.94

93

(t,estimony relied on by the trial court
"was simply rot credible" ) , 30 (PIaintif f s
"failed to prove" a subsidiary fact).

Collins v. City of Norfo1k, F.2d
19tr9j_ (slip

opfnion, p. 4)i McCarty v. Henson, 749
F:zd 1134, itgs (srmes v.
City of Lubbock , 727 F.2d 364 | 37T;TEU'
ffil ; verasquez v. city of
Abilene, 725 F.2d

94

T9'8T; Buchanan v. City of Jackson, 7OB
F.2d 10

Parnell v. Rapidas Parish School Bd., 553
ndrix

v. Joseph, 559 F.2d 1265, 1268 (5tffiTt
TfZil 

----------cci11 
v. Gadsden County Comission,

535 F.2
v. Sterrett,, 508 F.2d 1389., 1393-(EE'

T9ETITunited states v. Mare Count
Com t n,

eir. T9%l r-immer v. McKeithen, 485 F.2d
at 1 302 n. , 1 309-1 0
(Coleman, J., dissenting), 1314 (C1ark,



97

Until recently t,he United States also

maintained, thaE absent any failure to

apprehend and apply the corredt legaI

standards, a finding of unequal electoral

oppor t,uni ty under section 2 was a

factual finding subject Eo Rule 52(a),
o5F.R. Civ. P.'u

The Solicitor General how asserts,

however, that RuIe 52 does not apply to a

finding of vote dilution under section 2.

The Sol icit,or acknowledges Lhat the

determination of a section 2 claim

"reguires a careful analysis of the

challenged electoral processr 6ls informed

by its actual operation." U.S. Br. If,

1 8. But, he urges t,hat the ultimate

finding of the trial court based on that

J., dissenting).
95 See Brief for the United States, United

Fates v. Dallas County CommissionT-TlTE
1983)

p. 26.



98

analysis may be reversed whenever an

appellate court views the facts dif-

ferently.

The arguments advanced bY the

Solicitor do not justify any such depar-

t,ure from the principles of }31|95599-3-

City of Bessemer City, 84 L.Ed.2d 518

(1985). A number of the cases relied oh

by the Solicit,or General involved simple

matters of statutory construction ,96o, t,he

meaning of a constitutional right where

t,he facts were not, in disPute.9T

In Bose CorP. v. Cgnsumers Union, 80

L.Ed.2d 502 ( 1984) this Court declined to

apply Rule 52, but it did so only because

the Constitution requires appellate courts

in First Amendment cases t,o undertake 'an

95 uetropolitan Edison Co. v. PANE, 460 U.s.
lisher v.

Nation, 85 L.Ed;

97 strickland v. washingtgn, 80 L.Ed.2d 674
T196T)--



99

i ndepe nde nt examination of the whole

record. n 80 L. Ed.2d at 515-26. The

Solicit,or suggests that the special

standard of appellate review in Bose

should be extended to any statutory claim

in which trthe stakes .o. are too great to

entrust them finally t.o the judgment of

t,he trier of fact." U.S'. Br. II 19. But

this Court, has already applied Rule 52 to

Fourteenth Amendment claims of purposeful

discrimination in votin9,98 to claims of

discriminat,ory ef fect under section 5 of

the Vot,ing Rights Actr99und to claims

arising under Title VII of the 1964 Civil

Rights act.100 tn. rstakes" in each of these

areas of the law are surely as great as

98 Hunter v. Underwood, 85 L.Ed.2d 222, 229

' S.E' at 622-23 '
99 City of Rome v. United States, 446 U.S.

100 6n6srson v. City of Bessemer City,
Pu

suPra;
supra.



100

under Sect,ion 2. Cf. Alyeska PiPeline

Service v. Wilderness Sociely, 421 U.S.

24Ot 263-64 (1975). As this Court emph-

asized in White v. Regester, a district

cou r t cal led upon t,o resolve a vote

dilution claim occupies nit,s own special

vantage point" fron which to make an

" i nte.nsely local appraisal " of the

existence of racial vote di1ution.101 qlz

101 Ttre application of RuIe 52 is particu-
larly approprlate in a case such as this
where the appellants' brief is replete
with controverted or clearly inaccurate
factual assertions. For examPle, appel-
Iants state without citat,ion, nID llalifaxr
several blacks have been elected to t,he
County Conunission and the Cit,y Council of
Roanoke Rapids. n A. Br. 'l 1 . This is
false. No black had ever been elected to
eit,her body. T.780-782. eppellants
state, nThe Chair of the tlecklenburg
County Denpcratic Executive Committee at,
the time of trial and his immediate
predecessor are also b1ack. Stip. 126 rr

A. Br. 8. St,ipulation 126 actually says,nThe immediaEe Past Chairman of the
Mecklenberg County Democratic Executive
Conunittee, for the term from 1981 through
May 1983, was Robert Davis, who is black.
Davis is the only black person ever. Eo
hold that posiffin." Aplellants state
that "If Forsyth County were divided into



101

U.S; at, 769.

Froft "its own special vantage pointn

the court here inade detailed and extensive

fact findings on virtually all the factors

the Senat,e Report thought probative of a

section 2 vLolation. The findings of the

district court involved six distinct

multi-membei districts, the circumstances

of which were of course not precisely

identical. Appellants neither contend that

these differences are of any importance or

suggest that the trial court's ultimate

finding of unequal electoral opportuniEy

under the totality of circumstances is any

s i ngle member House districts, one
district with a population over 65t black
could be formed. St,iP. 129." App. Br. 9.
Stipulation 129 in fact says that two
majority black d j.stricts could be formed.
The omission is particularly deceptive
since the remedy proposed by appellants,
which was accepted unchanged by the
district court, contained two districts in
Forsyth County which are majority black in
voter registration.



B.

102

less justifiable in any one district than

in the others. Rather, appellants advance

objections which they contend are eqqally

applicable to all the dist,ricts at issue.

Appellants att,ack the district court rs

ultimate finding by generally challenging

each of the subsidiary findings on which

it is based. A. Br. 25-34.

Evidence of Prior Votinq
Dr.SCrlml nat].0n

The disErict court, after describing

the long North Carolina history of

off lcial discrimination intended to

prevent blacks from registering to vote,

as well as some relatively recent efforts

to counteract the continuing effects of

Ehat discrimindtion, concluded:

The present condition .... is
that r orr a state wide basis,
black voter registration remains
depressed relative to that of
the white majority, in part at
least because of the long period



103

of official state denial and
chilling of black citizens'
reglst,ration ef f orts. This
statewide depression of bLack
voter registraLion levels is
generally replicated in the
areas of the challenged dis-
tricts, and in each is traceab.le
in part at least to the histori-
cal statewide Pat,t,ern of of f i-
cial discrimination here found
to have existed. (J.S. 25a-26a)

Such disparities in black and white

registration, rooted in past and present

discrimination, is one of t,he factors

which Congress recognized Puts minority

votes at a comparative disadvantage in

predominantly white multi-member dis-

tricts. Senate Report 28.

Appellants conceder dS they must,

t,hat it, was for decades the avowed policy

of ah: state to prevent blacks from

registering to vote. A. Br. 25. The

dist,rict court noEed, for example, tf,"t in
'1900 the state adopted a literacy test for

the avowed purpose of disfranchising black



104

voters, and that that test, remained ln use

at least until 1970. J.S. 23a. Appellants

argue r €rs they 'did at trial, that all

effects of these admitted discriminatory

reg istration practices were entirely

eliminated because recent state efforts to

eliminate those effects "have been so

success(u1. " A. Br. 27 . The dist,rict

court , however, concluded t,hat recene

reg istrat,ion ef f orts had not been suf f i-

cient to remove "the disparity in regis-

t,ration which survives as a legacy of t,he

long period of direct denial and chilling

by the state of registration by black

citizens' J.S. 25a.

The district court's Einding is amply

supported by the record below. In every

county involved in this litigation the

wh i t,e reg i s tration rate exceeds that of

blacks, and in many of t,hose count,ies the

differential is far greater than the



105

statewide disparity.'o' E. at o.22. Even

appellants' witnesses acknowledged that

t,his dlsparity was unacceptably great. Px

40 i T. 575-77 , 1357 . lhere was direct

testimony that t,he history of mistreatment

of blacks continued t,o deter blacks from

seeking to register. T. 432, 451-2i

653-6 i 705-08 i 747i 848-50

Appel 1a nts contend that i n t,he Iast

few years Ehe state board of elections

has taken steps to register blacks who

might have been rejected or deterred by

past practices. A. Br. 26. But the staters

involvement did not begin until 1981, and

the record was replete with evidence t,hat,

long after the literacy test ceased to be

102 rn 1971, the year after use of the
discriminatory literacy test ended, 60.6*
of whites were registered, compared to
44.4t of qualified blacks. As of 1982
that registration gap had only been
slightly narrowed, with 55.7t of whites
and 52.7* of blacks registered. J.S.
24a.



106

used, loca1 locaI white election officials
at the county level pursued practices

wh i ch severely l irni ted the times and

places of registration and thus perpet-

uated t,he effects of past discriminatory

practice".l03 und.t t,hese circumstances the

district court was clearly justified in

f.inding thaE, minority registration leveIs

remained depressed because of Past

discriminatory practices.

1 03 rn a number of instances registration was
restricted to the county courthouse,
locations that especially burdened the
large numbers of blacks who did not own
cars. T. 704, 705, 745-46; Px 50, 61162.
Loca1 election of f icials severely limit,ed
the activities of voluntary or part-time
registrars, only allowing them, for
example, to register new voters outside
his or her own precinct when the state
board of elections required them to do so.
T. 525t 553-55, 657, 708.



107

Evidence of Economic and Educat,ional
D.fsatfvantages

The district court concluded that

minority voters were substantially impeded

in their efforts to elect candidates of

their choice by the continuing effects of

the pervasive discrimination that af-

fected, and to a significant degree

continues to affect, every aspect of their

lives. J.A. 26a-29a.

The court concluded t,hat past

d iscrimi nation had led t,o a variety of

sociAl and economic disparities.l04 such

1 04 T6s mean income of black citizens was only
64.9t Ehat of white citizens. Approxim-
ately 30t of aIl blacks have incomes below
the poverty leve1, comPared t,o only 10t of
whites; conversely, the proportion of
whites earning over $20r000 a year is
twice that of blacks. J.S. 28a. Since
signif icant, desegregat,ion did not occur in
North Carolina until the early 1970's,
most black adults attended schools that
were both segregated and qualitatively
inferior for all or most of their primary
ard secondary education. J.S. 27a. See
Gaston CounLy v United States, 395 U:f



108

social and economic disparities erere cited

by Congress as a major cause of unequal

opportunity
S. Rep. 29.

i n mu1t,i-member districts.
1 o5 eppellees adduced evidence

285, 292-96 (1969). Residential housing' i s r ig idly segregated t,hroughout the
state, J.S. 21a, and is almost total in
each of the challenged districts. T. 268,
436, 596, 648, 703, 739t 840-1, 1216-18i
Px 3a-8a.

1 05 gepgress deemed evidence of substantial
social anl ec-onomic disparit,ies suf f icient
by itself to demonstrate that blacks would
be at a significant disadvantage in a
majorlt,y white district. The Senate
Report directs the courts to presume,
where those disparities are presentr that
"disproportionate education, employment,
income level and living conditions arising
from past discrimination tend to depress
mlrority political participation. .." Id.
29 n.'l 14. The propriety of such Tn
inference was an established part of the
pre-E9]den case law expressly referred to
by Corrgressr and is an established part of
the post-amendment section 2 case law as
weIl. United SE,ates v. I'larengo County,
731 F.2
v. Escambia County , 748 F.2d aE-T0:lift
ffitas county, 739 F.2d



109

documenting Ehese disparities in each of

the challerged districtsl 06.rrd appellants do

not dispute their existence.

Appellants aLtack the district

court I s finding that these undisputed

disparities substantially impefled the

abil ity of blacks to part,icipate ef fec-

t,ively in the political process, asserting

t,hat nplai ntif f s f ailed to prove that

political participation on the Part of

blacks in North Carolina was ... in any

way hindered." A. Br. 30. But appellees

i n fact i ntroduced Ehe evidence which

106 Msqllenburg County: T. 243, 436i Px 4A,
55; St,ipulation 7 4

Durham County: T. 647-51, 686; Px 58;
Stipulation 74

Forsyth County: T. 595-96, 61 1 , 734 i Px
5(a), 57i llauser deposition 35, 36, 38

Wake County: T. 130, 1215-18i Px 20, 59

I{ouse District 8: T. 701 -03, 7 40-41 ,
7 42-44



110

appellants assert was missing, documenting

i n detail precisely how t,he admitted

disparities impeded the electoral effec-

t,iveness of black voters. That evidence

demonstrated that, the cost of camPaigns

was substantially greaEer in large

multi-mernber districts, and t,hat compara-

t ivety poor black voters (rrere less able

than whites t,o provide the financial

contributions n"""=".ty for a successful
. 107campargn. Minority voters $rere far less

1ikeIy t,han whit,es to o$rn or have access

to a car, wit,hout which it was of ten

difficult or impossible to reach polling

107 T. 130, 437, 443, 791i Px Zoi Hauser
Deposition, 35. There hras also more
general testimony regarding the net impact
of these disparities. T. 402-03, 665'
801. See David v. Garrison, 553 E.2d 923,
927, tr(ffiDove v. Moo_qgr
53e F.2d 1152, 1154 n.3 tEEE'eTilT976i;
Herdrick v. Walder | 527 F.2d 44, 50 (7th
ffi



111

places or registration sites.l08 Minority

candidates, Iiving in racially segregated

neighborhoods and a racially segregated

society, had far less opportunity than

white candidates to gain exPosure and

develop support among the majority of the

voters who were white.lo9

App.el lants Frge that this evidence

was rebutted by the fact thaL eight

witnesses called by appellees were politi-

cally active blacks. A. Br. 29-30. But

the issue in a section 2 dilution proceed-

ing is not whether any blacks are partici-
pants in any way in the political Process,

108 T. 634t 686; px 57, 58. The district
court, noted that 25.1t of all black
families, compared t,o 7.3t of white
families, have no private vehicle avail-
able for transportation. J.S. 28a.

109 T. 435, 443, 6G5, 792, 839.



112

but whether those who participate have an

equal opportunity to elect candidates of

t,heir choice. The mere fact that eight or

even more blacks simply participate in the

electoral process does not; by itself ,

support any particular conclusion regard-

ing the existence of such equal oPPortu-

nity. In this case the instances cit,ed

by appellants as t,he best examples of the

degree to which the political Process is

open t,o blacks actually tend t,o supPort

the trial court's conclusions to the

contrary. AII the specific political

organizations which appellants insist

blacks are able to part,icipate in are

either civil rights or black organiza-
1',t0tionsl ""on1y two of the individuals cited

1 10 T'6s organizations refered to by appellants
are the Nash County NAACP, the llecklenburg
County Black Caucus, the Second Congres-
sional District Black Caucus, the Durham
Committee on the Affairs of B1ack People,
t,he lf,ilson CommiEtee on the Af f airs of
Black People, the Raleigh-Wake Citizens



113

by aPPellants held elective

both Positions were chosen i

black single member districts'

office, and

n majoritY
111

D. Evidence of Raci4 Appeals by [h:i!e
Candidates.

The district court concluded that the

ability of minority voters to elect

candidates of their choice was signifi-

cancly impaired by a stat'ewide history of

wh i te ca nd idates urg i ng wh i t'e voters to

vote against black candidates or agalnst

white candidates supported by black

voters:
- tRl acial aPPeaIs in North

i"iolina PoIit,ical camPaigns' have for t'he Past thirtY Years
been widesPread and Persistent
. . . . trl hL historic use of
racial aPPeals in Political
camPaigns 

- in North Carolina
periisCs to the Present time and

Association, the B1ack Women's PoIitical
Caucus, and the wake County Democratic
Black Caucus. (APP. Br. 11-12, 30)

111 T. 5gz, 530-1, 830, st,ip. 143-



114

... its effect is PresentlY to
lessen to some degree the oPPor-
tunity of black citizens to
par!icipate effectivelY in the
political process and to elect
candidates of their choice.
(J.S. 32a).

Congress noted that the use of such racial

appeals to white voters might make it

particularly difficult for black candi-

dates to be elected from majority white

districts. Senate Report 29. The noxious

effects of such appeals are not limited to

the particular election in which they are

made; white voters, once persuaded to vote

against a candidate because of his or her

race or the race of his or her supporters'

may well vote in a similar manner in

subsequent, races. J.s. 32a.112

112 "The contents of these materials reveal an
unmistakable intention by t,heir dis-
seminators to exploit existing fears and
prejudices and to create new fears and
prejudices" toward black political
participation. Id. According to a black
witness at triEl , one of the biggest
obstacles to black candidates is "con-



115

Appellants object that, of the six

el ect io ns ref erred t,o by the district

court as invoiving racial appeals, only-

two occurred within the last 15 years. A.

Br. 32a. But these particular elections

were not, cited by the trial court as Ehe

sole instances of racial appeals. Rather,

those s ix elections lrere listed as the

most blatant examplesr. J.S. 31a, and the

opinion added that n In] umerous other

examples of ... racial appeals in a great

number of local and statewide elections

abound in the record.' J.S. 32a. Among

the additional instances of racial appeals

documented in the record referred to by

the dist,rict court are elections in

1gi61 13tggo1 14und 1gaz.1 1 5

vi nci ng t,he white voter Ehat there is
nothirg to fear from having blacks serve
in elective office." T. 442

113 T. 330-38, 390-91; Px 44.

1 '14 T. 350-358.



1 't6

Appellants also urge t,hat the

presence of racial appeals cannot be

proved merely by evidence as to the

content of the advertisements or litera-
ture used by white candidates ; rat,her,

they assert, some form of in depth public

opinion poll must be conducted to demon-

strate what m.eaning white voters acknowl-

edge at,t,aching to the racist materials

used by white candidates. A. Br. 31-32.

Public opinion polls are not, however, the

ordinary method of establishing the

meaning of disputed documents; indeed, if
racial appeals have been effective, the

white voters to whom t,hose appeals were

addressed are unlikely to discuss the

matter with complet,e candor. Local

federal judges, with personal knowledge of

115 T. 354, 357-69i Px 51, 52.



117

the English language and the culture in

which they live, are entirely comPetent to

comprehend the me-aning of the spoken and

writt,en word in a wide variety of con-

texts, including polit,ical appeals. No

publ ic opinion pol1 is necessary to

understand the significance of appeals

such as nWhite People Wake UP", T. 245-46i

Px 25, or to realize why, alEhough typic-

ally unwilling to provide free publicity

to an opponent, a candidate wouLd pub-

I icize a photograph of his oPponent

meeting with a black leader. T. 355-58;

Px 53c; see also Px 44. Indeed, these

judges, all North Carolina natives

conversant with local social and polit,ical

realities, were able to determine that

recent racial appeals, while at times

"less gross and virulentr' J.S. 31a, "pick

up on the same obvious themes": nblack

dominaEion" over "moderate' white candi-



118

dates and the threat of

"bIack power" bY blacks

Id.'l 16

tnegro rufet or

'bloc" voting.

E. Evidence of Polarized Voting

The sufficiencY of the evidence

supporting the dist,rict courtrs f inding of

polarized vot.ing is set out at pP. 88-95,

suPra

F. The }lajority Vote Requirement

The district court found that, the

majority runoff requirement impaired the

ability of blacks to elect candidates of

t,heir choice from the disputed districts.

J.S. 29a-30a. Although no black candidate

seeki ng election t,o one of the at,-large

116 F'or example, using a frequent Pun for
black, a candidate in 1982 in Durham
denounced his black opponent for "bus-
sing" [sicJ his nblock' vote to the po1Is.
Px. 52.



119

seats has ever been forced into a runoff

because of this rule, A. Br. 27, the issue

at 'trial was not whether the" runoff rule

had led directly to Ehe defeat, of black

Iegislative candidates, but whether that

rule i nd irectly interfered with the

abil ity of minority voters to elect

candidates of their choice. The majority

vote requirement has prevented black

citizens from being elected to statewide,

congressional, and local level posiEions,

f. 618-21, 958-959, 967, D 48, P' 20. The

exclusion of blacks from these offices has

operated indirectly to interfere with the

abil ity of blacks to win legislative



120

elections .117 The courtrs findings have a

substantial basis in t,he record and

corroborate Congress' concern that, in vote

dilution cases r III€I jorit,y vote requirements

are "typical factors" which "may enhance

the opportunity for discriminat,ion against

the minority group.' Senate Report.at 29.118

117 Because of the effect of the runoff
requirement in state and local offices,
black voters were deprived of an opPor-
tunity to prepare for legislative elec-
t,ions by winning local office, of the
possible assistance of minorit,y of-
ficials in higher officerand of a pool of
experienced minority campaign workers. T.
142, 192, 433, 435-437, 442, 960, 967.

1 1 8 This Court has also recognized the
discriminatory potential of runoff
re-quirements. SeeT €.g.7 City of Port
Arthur v. uniteffiratei,- 4ffiT58',

United States,
446 U. S.



121

G. Evidence Regarding- E-Iqc'lcral Success

Having identified a number of specific

aspects of the challenged at-large systems

which interfered wit,h the ability of

blacks to participate in the political

process or elect candidat,es of their

choice, the dist,rict court examined as

welI actual election outcomes t,o ascertain

the net impact of those Practices. The

court concluded:

IT] he success Ehat has been
achieved by black candidates t,o
date is, standing alone, too
minimal in total numbers and too
recent in relation to t,he long
history of comPlete denial of
any elective oPPortunities to
compeI or even to arguablY
support an ult,imate finding that
a black candidate's race is no
longer a significant adverse
factor in the PoIit,icaI Pro-
cesses of the s tat,e e i the r
generally or sPecif ica1lY in t,he
areas of the challenged dis-
tricts. J.S. 37a-38a.



122

Irluch of t,he argument advanced by both

appellants and the Solicitor General is an

attack on this factual finding.

As the facts stood in SePtember,

1 981 , when this action tras f iled, the

correctness of this finding could not

seriously have been disputed. Prior t,o

1972 no black candidate had gver been

elected from any of the six disputed

multi-member districts. From 1972-1980 no

black representatives served in at least

three of the districts; far from having,

as the SoI icitor suggests, a level of

representation comparable to their

proportion of t,he populationr at any given

point in time, prior to 1982 more than

two - t,h i rds of the black voters had no

elected black rePresentatives at all. In

six of the disputed districts, with an

average black population of well over 25*,

a total of 30 legislat,ors were elected at



123

Iarge. Prior to 1982 no more than two or

three black candidates weEe successful in

any election year. 1 1 9

Appellants rely solely on the result,s

of the 1982 elections in attacking the

f i nd i ngs of the district court. The

outcome of the 1982 elections, held some

14 months af t,er the f iling of this action,

were strikingly different than past

elections. Although in 1980 only t,wo

districts had elected black candidates,

four of the districts did so in 1982. For

the first t,ime in North Carolina history

two blacks were elected simultaneously

from the same multi-member legislative

district, result,ing in 5 black legis-
120IAEOTS.

119 Statewide, the number of black elected
officials remains quite low, and has not
increased significantly since 1975. J.S.
33a.

1 20 alg6ough appellees state that seven blacks
were elected in 1982, t,wo were elected



124

Appellants contended at trial that

the 1982 elections demonstrated t,hat any

d i scrimi natory ef f ect of t,he at-large

systems had, dt least since the filing of

t,he complaint, disappeared. The district

court expressly rejected that contention:

There are intimations from recent
history, particularly from t,he 1982

. electiogs, t,hat a more substantial
breakthiough bf success could be
imminent but there were enough
obviously aberrational aspects
present in the most recent elections
to make thaE a matter of sheer
speculation. (J.S. 37a),

The central issue regarding the

significance of minority electoral success

is whether the district courts' evaluation

of the obviously unusual 1982 election

results was clearly erroneous. The parties

offered at trial conflicting evidence

f rom ma jorit,y black House districts in
section 5 covered counties which although
they i nclude some counties in Senat,e
District 2t are not in question here.
srip. 95.



125

regarding the significance of the 1982

121erectlons. Ihe evidence suggesting t,hat

a!" 1982 'elections were a.n aberration was

manifestly sufficient to support the trlal

court's conclusion. Firstr ds the district

court noted, there was evidence that white

political leaders, who had previously

supported only white candidates, for the

first time gave substantial assistance to

black candidates and did so for the

121 rnForsyth Couoty, for example, appellants
pointed to isolated instances of electoral
success prior to 1982 which the court
weighed in conjunction with evidence of
electoral failures such as the defeat of
all black Democratic candidates, including
appointed incumbents, in 1978 and 1980,
years in which all white Democrats were
successful. J.S. 35a. In tlouse District
No. 8, which is 39t black in population,
no black had ever been elected and from
Mecklenlcurg, in the eight, member House and'four member Senate districts, only one
black senator (1975-1979) and no black
representatives had been elected this
century prlor to 1982. J.S. 34a. More-
over, as in Forsyth, in general elections
wherever there vras a black Democrat
running, black Democrats ldere the only
Democrats to lose to Republicans. T, 83.



126

purpose of influencing this litigat,ion and

preventing t,he introduction of single

member district".122 Second, in Mecklenburg

County t,here were fewer white candidat,es

than there were seats, t,hus assuring that

a black candidate would win the primary.123

Third, conversely, in Forsyth County there

was su,ch a surfeit of whiEe candidates

that t,he splintering of the whit,e vote

gave blacks a n unusual opportunity .'124

122 Hauser Deposition, 49i T. 1192-94.
'123 g.5. 42a. tloreover, t,he black candidate

who lost in the general election was the
only Democratic candidate to lose. In
House District 23, there were only 2 white
candidates for 3 seats in Ehe 1982
primary, and the black candidat,e who won
ran essentially unopposed in the general
election, but still received only 43t of
the white vote. T. 370,

124 1.87-90.' There were 9 white Democratic
candidates, none of them incumbents,
running for 5 seats. appellees I expert
testified that the likelihood of two
blacks getEing elected again in the
multi-member district was "very close to
zeEo. 'r Id .



127

Fourth, in 1982r eis occurs only once every

six years, there was no statewide race for

either President or Unit,ed SEates Senate,

as a resulE of which white and Republican

turnout was unusually 1or.125 Fif th, in one

county, black leaders had been able to

bring about the election of a black

legislator'only by selecting' a candidate

who had riot been visibly outspoken about

the i nteres t,s of the black communi ,y .126

Finally, in a number of instances black

candidat,es won solely because black voters

in unprecedented numbers resorted to

125 'y. 89-94 , 1 42-144, 179 . white turnout was
20* lower than in 1980.

126 Hauser Deposition 42-43i T. 625-26i
666-669i 691. The ability of some blacks
to get elected does not mean they are the
representatives of choice of black voters.
T 1281 , 1295, 1299.



128

single shot voting, forfeiting their right
to participate in most, of t,he legislative
electiond 'in order to have some .oPPor-

tunity of prevailing in a single race .127

The success of black candidates in

1982 was viewed by the court as a con-

cat,enation of these various factors, each

of which either was a freak occurrence

127 Experts for both appellants and appellees
agreed t,hat black voters had to s.ingle
shot vote in order t,o elect black can-
didates in the districts at issue. T. 85,
182-4, 186-7, '.l 89 , 797-8 | 1437 . Lay
witnesses for both parties also agreed
that the victories of black candidates
$rere due in large measure to extensive
single shot voting by blacks. T. 181, 182,
184, 716, 1099, 1191.



129

over which appellees had no control t128 or

in and of itself underscored the inequal-

ity in the mu1t,i-ftrember election "y"t"*.129

1 28 !6s likelihood, for example, of repeating
successfully the 1982 election of blacks
in the challenged Forsyth House District
was "very close to zero. n T. 87. More-
over, unlike white Democrats, not a single
one of whom lost in the 1982 general elec-
tions, black Democrats in the other
districts still enjoyed only haphazard
success. Thus, the court was not pre-
sented with the fact situation of Whitcomb
v. Chavis , 403 U.S. 124 ( 1971 ) .-

129 The necessity of single shot voting is a
distinct handicap because it exacerbates
the competitive disadvantage minority
voters already suffer because of their
numerical submergence. White voters get
to influence the election of all candi-
dates in the mu1tl-seat system, whereas
blacks must relinquish any opportunit,y t,o
influence t,he choice of other represen-
tatives in order to concentrate their
votes on t,he mi nority candidate. As a
result, white candidates can ignore t.he
interests of the black community with
impunity. See discussion ggg5g at 59-62.



lI .

130

Responsiyenesrs

AppeIlees did not

s ive ness is not an

plaintiff's case.130

attempt fo proVe

essential part of

Senate Report 29

the unresponsiveness of individual elected

officials. In a section 2 case unresPon-

n. t t 6; 1 31 Appellants' de . miqirqgs evidence

130 15is Court held in Rogers v. Lodge, 458
u.s. 513, 625 h.g, t@eness
is not an essential factor in establishing
a claim of intent,ional vote dilution under
t,he Fourteenth Amendment.

131 Because section 2 protects t,he right to
participat,e in the process of government,
'not simply access to the fruits of
government", and because trthe subjective-
ness of determining responsivenessn is at
odds with the Congressional emphasis, a
showing of unresponsiveness might, have
some probative va1ue, but a showing of
res6ronsiveness has litt1e. United States
v. Marergo Councyr 73i t.zaffi
ffiock County, 727 E.2d at
38l r on of section
2 despite a finding of responsiveness);
McMiLlan v. Escambia County' 748 F.2d at



131

of responsivenes" 1 32*uy

evidence, but only

attempted at trial to

ness. Id.

be relevant rebuttal
if appellees had

prove unresponsive-

I. for

The district court correctly recogn-

ized that while departure from established

state policy may be probative of a

1 32 16q only testimony cited to support their
assertion that appellees' nwitnesses
conceded that their legislators were
responsiv€n, A. Br. 32, was the testimony
of one witness who testified on cross-
examination that of twelve Representatives
and Senators from Mecklenburg County, two,
the black representative and one whit,e
representative, were resPonsive. T.
450-453. The only other evidence was the
self serving testimony of one defense
witness, listed in t,oto ln foot,note 14 to
appellants I brief . Furthermore, appellants
assertion that white representatives must
be responsive because nwhiLe candidates
need black support t,o win" A. Br. at 34,
is not supported by t,he record. In the
challenged districts, whit,e candidates
consistently won without any support from
black voters. Seer €.9.r T. 752-4.

Tenuousness of the SEate Polic
ultlmember Drstr



132

violation of section 2, a consistently

applied race neutral policy does not

negate appellees' showlng, through other

factors, that the challenged practice has

a discriminatory result. J.S. A.39a,

citing S. Rep. at 29, n.117.

In this case, t,he district court did

not find the application of a consistent,

race-neutral st,ate policy. In fact, af ter

the Attorney GeneraL in 1981 objdcted

under section 5 to t,he 1967 prohibition

against dividing counties, both covered

counties and counties not covered by

section 5 were divided.133

The Attorney General found that t,he

use of Iarge multi-member districts

' necessarily submerges" concentrations of

black voters in the section 5 covered

counties. Based on the totality of

1 33 The challenged plan divided nineteen
counties not covered by Section 5.



133

relevant circumstances, the court below

similarly concluded that,, in the non-

covered countids as wellr black citizens

have less opportunity than white citizens
to participate in the challenged majority

white multi-member districts and to elect
representatives of t,heir choice.

The decision of t,he district court

rests on an exhaustive analys is of t,he

eleitoral conditions in each of the

challenged districts. The lower court

made detailed findings identifying the

specific obstacles which impaired the

ability of minority voters t,o elect
candidates of their choice in those

districts. The trial court held

... the creation of each of the
multi-member districts chal-
Ienged in t,his action results in
the black registered voters of
that district ... having less
opportunity than do other
members of the electorate to
participate in the political



134

' process and t,o elect rePresen-
tatlves. of their choice. J.S.
52a.

This ultimate flnding of fact, unless

clearly erroneousr ls sufflclent as a

matter of law to requlre a flndlng of

liability under sectlon 2.

,



f

J

135

CONCI,USION

The decision of tie t,hree judge

district court should be affirmed.

Respectfully submit,ed,

JUTIUS L. CHAII{BERS
' ERIC SCHNAPPER

C. LANI GUINIER *
NAACP Legal Defense
and gducational Fund, Inc.
15t,h Floor
99 lludson Street
New York, New York 10013
12121 219- 1 90o

LESLIE J. WINNER
Ferguson, Watt, WaIlas,
& Adkins, P.A.
951 S. Independence B1vd.
Charlotte, North Carolina 28202
( 704 ) 37 5-8461

ATTORNEYS FOR APPELLEES, RaIPh
Gingles, et a1.

*Counsel of Record

DATED: AUGUST 30, 1985