Brief for Appellees

    No. 83-1958 l/,-,., t

IN TEE

SUPREITE COURT: OF IEE UNITED STATES

OcEober Term, I 984
at a=ar8- - rt=8tr- t=r-=t -a a a - -= ---t
IACY E. THORNBURG, EE Af . T

l-tniln.",
V.

LPH GINGLES r !! 4. ,

' APPellees.
trt==--8= 3 r=--ttl=-===-=t = ==== -t

On Appeal fron the trnited.States
District Court for the Eastern '

District .of North Carolina

---ar--tt--ta =:t=!t=3= - =t-a====-= 3= = == ====:t

BRIEF FOR APPELLEES

-!lat-t-a-atrl=--==--a=======-a==a==-r-g 
: a

JULTUS L. CBAI.TBERS
ERIC SCENAPPER

I
r

NAACP Legal Defense
and Edueaeional FundI Inc.
16EI Eloor
99 Eudson Street
New York, New York 10013
1212) 219-1900

LESLTE J. WTNNER
FergusoR, Idatt, l{a1las,
g.Adkins, P.A.
951 S. Independence tslvd.
Charlotte, North CaroLina 28202
( 704 ) 37s-845 1

ATTOR.\EYS FOR APPELLEES, R,A1Ph
Gi ng1es, g! gI.
rCounsel of Record



a

il

QUESTIONS PRESENTED

( 1 ) Does section 2 of the Voting

Rights Act require Proof that

minority voters are totallY
excluded from the Po1itical
process?

(2) Does the election of a 'minority

candidate conclusively est,ablish

the existence of equal electoral

opportunity?

(3) Did the district court hold that

section 2 reguires either
proportional representation or

guaranteed minority electoral

success?

t
t



({) Did the dlstrlct eourt cor-

rectly evaluate the evldence of

raclally Polarized votlng?

(5) WaE the distrlct courtrs ftndlng

_ . of, unequal electoral opPortunity
' -=- -'- ---icl'early Grroneougt?

1t

t

p
i



e

r

TABLE OF CONTENTS

Page

Questions Presgnted .. o........... i
Tablg of Authorlties ............. vi
Statement of thg Case ............ 1

Findings of the District Court ... 7

Suramapy of Argument ........o...o. 15

Argument

I. Section 2 Provides
It{inority Voters an Equal
Opportunit,Y to Elect
Representatives of their
Choicg ................. 19

A. The Legislative EistorY.of
$ha lOa, lnanAmani af

?

t

Section 2 .. .. o. o .. o. .. . 21

B. Equal Electoral Oppor-
tunity is the Statutory
Standard ............... 44

C. The Election of Some
l,tinority Candidates Does
Not Conclusively Establish
the Exist,ence of Equal
Electoral Oppor-
tunity ............... 50

111



II.

III.

rv.

Page

The District Court Re-
quired Neither ProPortional
Representat,ion Nor Guaran-
teed Minority PoIitica1
Success .........o......... 64

The District Court ApPlied
the Correct Standards In
Evaluating the Evidence of
Polarized Voting ....... ...' 70

A, Summary of the District
Courtrs Findings ...... 73

B. The Extent of Racial
Polarization was Sig-
nificant, Even Where
Some Blacks lilon ....'... 76

C.- Appellees were not Re-
quired to Prove that White
Votersr Failure to Vote
for B1ack Candidates was
Racial.ly llotivated .... 81

D. The District Court's
Finding of the Extent of
Racially Polarized
Voting is not ClearlY
Errongous .o..........r 88

The District Court Finding
of Unequal E1ectora1 OPPor-
tunity Was Not Clearly
Erroneous ....o............ 95

A. The AppIicabilitY of
Rulg 52 .............. 95

1V

i

p



t

B.

c.

D.

B.

E

(lo

Page
Evidence of Prior
Voting Discrirni-
natiOn .............. . 102

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

Evidence of Racia1
Appeals by White
Candidatgs ........... 113

Evidence of Polar-
ized Voti.ng ........o. 118

The t{ajority vote
Requirement .......... 118

Evidence Regarding
Electoral Success of
}{inority Candi-
dates ................ 121

Issug ................ 130

I. Tenuousness of the
State Policy for Multi-
member Districts o... o 1 31

Conclusion ... . . ... . .... .. .. . o..... o. 1 35



Page

Cases

Alyeska Pipeline Service v' Wilder-
ness SocietY, 421 U'S'
240 (1975) """""..""" 100

AndersoD v, CitY of Bessemer
City, U.S. 

-, 
84

;:;a: zrsia- i tgE'si .. o "' 16'e8'ee

Anderson v. t'tills , 664 F'2d 6,
500 (5th Cir. 1981) """"'

Bose CorP. v. Consumers-Union'
80 L.Ed.za-ic2 (1984) """' 98

Buchanan v. CitY of Jackson'--- -ioa F.2d 1055 (5th cir' o(
1983) tttt--"""t""""" zw

City of Port Arthur v' U'S' 7

517 F. SuPP. 981, 3j!.1!!ry| ^F r^A
459 U.S' 159 (1982) """" 6)1tzv

CitY of Rome v. U'S' t 446 U'S'
156 (1980) "".."'oo"' 72r99'120

Collins v. CitY of Norfolk'
758 F.2d 572 (4th Cir' A2
JulY 22r 1985) "o"""""' Yo

TABLE oF AUJgoRrrrEs

-vr



Cases

Connecticut v. Teal, 457
U.S. 440 (1982) """""o"

Baxter, 504 E.2d 875

Page

56

110

110

50

36

107

63

Cross v.
( 5th

David v.
( 5th

Cir. 1979) .......... o. '
Garrison, 553 F.2d 923
Cir. 1977 ) ...... ..... "

Dove v. Moore, 539 F.2d 1152
(8th Cir. 1976) ..."""""

Ernst and Ernst v. Hochfelder,
425 U.S. 185 (1975) --.-....--

Garcia v. United States, - 
U.S'

105 S.Ct. 479 (196T) .-..

Gaston CountY v. United States,
395 U.S. 285 (1969) --...o..-

1 389 ( 5th Cir. 1975) . .... ... 95

Harper & Row, Publisher v.
Nation, - U.S. 

-. 
85 L.Ed' 2d

588 (1985f.....-T--...-... 9E

Hendrick v. Walder, 527 F-2d 44
(7th Cir. 1975) ..-..-....... 110

IIe ndrix v . JosePh , 559 F. 2d
1265 ( 5th Cir. 1977 ) . ... .. .. 96

Hunter v. Underwood, U.S. 
-l85 L.Ed.2d 222 (T5g5l ...7. 99

-vii-



Page
Cases

Jones v. City of Lubbock, 727
F.2d 364 (5th Cir" 1984);
rehrg en banc denied, 730
F.2d 233 (1984) o"ocooc.. 88r96r130

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

_ Kirksey v. City of Jackson, 699
.. F.2d 317 ( 5th Cir. .1982) . . . . 84

Lodge v. Buxton, Civ. No. 176-
55 (S.D. Ga. 10/26/78), aff 'cl
Rogers v. Lodge, 458 U.S.
513 (1982) .oo........o...... 80

MajoE.vo Treen, 574 F. Supp. 325
(8.D. La. 1983) (three judge
COUft) ....o................ 56r71 r78

McCarty v. Henson. 74g F.zd
1 1 34 ( 5th Cir. 1984) , aff'd
753 F.2d. 879 (5th CirI-
(1985) ...................... 96

McCleskey v. Zant, 580 F. Supp.
380 (N.D. Ga. 1984), affrd 753

P.zd 877 ( 5th Cir. 1985T:. . . 85

McGill v. Gadsden County
Commissionr 535 F.2d 277
( 5th Cir. 1976) .. .... ....... 96

Mcl'lilIan v. Escambia County, 748
F.2d 1037 (11th Cir. 1984) .. 108r130

Itletropolitan Edison Co. v. PANE,
450 U.S. 766 (1983)

viii-

98



Page
Cases

lrlississippi RePublican Execu-
tive Cornmittee v. Brooks,

u.s. , 105 S.Ct.
TTE (1984J-.........-...--.! 85

llobile v. Bo1den, 445 U.S. 55
(198O) ..o... ot''''''''''22'23'24'30'

82
NAACP v. Gadsden CountY School

Board, 691 F.2d 978 (1lth
Cir. 1982) .........".."i.. 80

Nevett v. Sides r'571 F-2d 2Og
(1978) ......t''oo'o'o"""'

Parnell v. RaPidas Parish School
Board, 553 F.2d 180 (5th
Cir. 1977) ......".."""o'

Perkins v. CitY of West Helena,
675 F.2d 201 (8th Cir. 1982),

58r69

96

TT98217.... o....... -......-- 85

Rogers v. todge, 458 U-S. 613' (19821 ..o....o."' 79t80,85'99'130

Sout,h Alameda SPanish SPeaking
Org. v. CitY of Union
City, 424 F.2d 291 (9th
Cir. 1 970) .. ... . . .... .. .. ' " ' 84

Strickland v. ltashington, U. S.

_t 80 t.Ed.2d 674 (Ty64) - - 98

United Jewish organizations v-
Carey, 403 U.S. 144
(1977) ........"..""""" 68

1X



Page
Cases

U.S. v. Bd. of Supervisors of
Forrest County, 5'11 F"2d
951 (5th Cir" 1978) .ocooo..G 56

U.S. v. Carolene Products Co.7
304 u.s. 144 (1938) .....o.oo 71

U.S. v. Dallas County Commission,
739 F.zd 1529 (11th Cir.
1984) .........o...... ....... 97

'U;S. v. Executive Committee of
Democratic Party of Greene
County, AIa. 254 F. Supp.
543 (S"D. AIa" 1956) "o...... 84r85

U.S. vo [larengo County Comnission,
731 F.2d 1546 (1lth Cir.
1984) ................. 56r57 r85196,

Velasquez v. City of Abilene,

108,130

725 F.
1980)

2d 1017 (sth Cir.
56r95

$Iallace v. Eouse, 515 F.2d 619
(5th Cir. 1975) ............. 56159

Whitconb v. Chavis, 403 U"S.
124 (1971) .........o.o...... 129

White v. Regester, 412 U.S.
755 ( 1e73) passim

Z immer v. ttlcKeithen, 485 F.2d 1297
(5th Cir. 1973)(en banc),
affrd sub nom East Carroll
trtET-sh-Ehddf Board v. llarshal1 ,
424 U.S. 636 (1976) .... 30r55r58r96

-x



Page

OTHER AUTHORITIES

Statutes

Section 5, Voting Rights Act of
1965, 42 U.S.C.
S1973c .....,.....""' 3'4'22'133

Voting Rights Act Amendments of
1982r Section 2,
96 Stat . 1 31 , 42 U.S.C.
SigZf .........".."""" $!$

Federal Rules of Civil Procedure,
RuIe 52(a) ....o...... . 67 r98r100r101

Constitutional Provisions :

Fourteenth and Fifteenth
Amgndmgnts ........' " "'." PaSSim

House and Senate Bills

H.R. 3198, 97th Cong., lst Sess.,
52 . .. . . . . . . . ' ' ' ' ' ' ' ' ' ' ' ' ' 23

B.R. 3112, 97th Cong., lst
Sess., S2O1 ........""" 23

Senate Bill S. 1gg2 .. o........ 33 t34r36

Congressional BePorts

House Report No. 97-227, 97th
Con!., lst Sess. ( 1 981 ) Passim

I

Senate RePort No. 97-417 | 97th
cong. , 2d Sess. (1982) -.. Passim

-xi



Page

Congressional [learings

Hearings before the Subcommittee
on Civil and Constitutional
Rights of the House JudiciarY
Committee, 97th Cong., 1st Sess
(1981) .o.."""'""""" 23

Hearings before the Subcom-
mLttee on t'he Constitution

. of the Senate JudiciarY
Committeeon S.53, 97th Cong.r
2d Sess. (1982) ....-.... 28r34r35r411

42r43

Conqressional Record

128 Cong. Rec. (dailY ed- oct.
2, 1981) ....."'o"""" 25'26,-29

128 Cong. Rec. (dailY ed- r Oct-
5, 1981)....'o""""" 26. 27'29

128 Cong. Rec. (dailY ed. Oct.
15, 1981)......""""'

128 Cong. Rec. (dailY ed. June 9,
1982) ......"o"""' 35'37'40'47

48 r54 t82

128 Cong. Rec. (dailY ed. June 10t
1982)......c..."""-"o' 35'37

128 Cong. Ree. (dailY ed. June 15,
1982) ..o....."""".-' 29,34'3'7 r82

128 Cong. Rec. (dai1Y ed- June 16,
1982) ..o......"""""' 56

29

- xll -



Page

128 Cong. Rec. (dailY ed. June 17,
1982) .................. 31r34.37 r39

4g r53 rg2

128 Cong. Rec. (dailY ed. June
18, 1982) .......... 29r37r46148t53

72,82

128 Cong. Rec. (dailY ed. June
23r 1982) ................ 34

iliscellaneous

Joint Center for PoIitical Studies
National Roster of Black
Elected Officials
( 1984) .. .. .. . .. ...... . .. . .

Ios Angeles Times, IlaY 4 |
1982 . . . . . . . . . . . . . . .. . ' ' '

WalI Street Journal, llay 4 |

43

New York Times,
p. B'7, coI.

Dec. 18, 1981,
4 ...aa....... 41

- xr11-



STATEMENT OF THE CASEI

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-

t ia1 black popuIatio,..2 Prior to this
Iitigation no more than 4 of.the 120 state

representativesr oE 2 of the 50 state

l--

The opinion of the district court as
reprinted in the aPPendix to the
Jurisdictional Statement has two signifi-
cant tygrcgraphical errors. The Appendix at
J.S. 34a and 35a stAtes, "Since then two
black citizens have run successfully in
the (llecklenburg Senate district) ...'
and oIn Halifax County, black citizens
have run successfully...' Both sentences
of the opinion actually read trhave run
unsuceessfully.' (Emphasis added). Due to
EEese and other errors, the opinion has
been reprinted in the Joint Appendixr at
JA5-JA58t .

See Joint Center for Political Studies,
National Roster of B1ack Elected Officials



)-

senators, were black-3 Although blacks are

22.4t of the state populationr the number

of blacks in either house of the North

Carolina legislature had never. exeeeded

4t. The f irst black was 'not elected to

the Eouse until 1958, and the first black

state s€nator was not elected until 19'74'

North Carotina .makes greater use of at

Iarge legislative elections than most

other states; under the 1g82 districting

plan 98 of the 120 rePresentatives and 30

of the 50 sEate senat'ors were to be chosen

from multi-member districts. 4

In JulY 1981, following the 1980

census, North Carolina initially adopted a

redistricting plan involving a total of

1 48 multi-member and 22 single member dis-

94-5.

and EE, ChaPters 1 and 2

2nd Extra Session 1982, JA

3

4

St ip.

sr iP.
Sess.
67.

96,

Ex.
Laws

JA

BB
of



{-
J

trtricts.' Under this plan every single

Eouse and Senate district had a white

majority.6 There was a population devia-

tion of 221 among the proposed districts.
Forty of North Carolina's 1 O0

counties are covered by section 5 of the

Voting Rights Acti accordirryly, the state

was required to obtain preclearance of

those portions of the redistricting plan

which affected those 40 counties. North

Carolina submitted the 1981 plan to the

who entered obiections

to both the House and Senate p1ans, having

concluded that'the use of large nulti-
member districts effectively submerges

cognizable concentrations of black

Stip. Ex. D and E', Chapters 800 and 821
Sess. Laws 1981, JA 51.

The opinion states one district rras
majority black in population, JA7,
referring to the second 1 981 pIan,
enacted in October after this lawsuit was
filed. Stip. Ex. L, JA 62.



4

population into a urajority white elec-

torate.r StiP. Exn N and O, JA53. For

similar reasons, the Attorney General also

objected to Article 2 Sections 3(3)and

5(3) of the North Carolina Constitution,

adopted in 1967 Oo: not submitted for

preclearance until after tbis lawsuit was

filed, which forbade the subdivision of

counties in the formation of legislative

districts. StiP. 22, JA 53-

ApPellees filed this action in

Septenber 1981, a11e9ing, inter alia, that

the 1 98 1 redistricting plan violated

section 2 of the Voting Rights Act and the

Fourteenth Amendment. Following the

objections of the Attorney General under

section 5, the state adopted two subse-

quent redistricting plans; t'he complaint

was supplemented to challenge the final

plans, Idhich were adopted in April, 1982.

Stips . 42r43i JA 57. In June 1982 Congress



,5:

_ amended section 2 to forbid election

practices with discrininatory 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 circumstances 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 Phil1ips, Jr.1 Franklin

T. Dupreel Jt.1 and W. Earl Britt, Jt.,
the court unanimously upheld plaintiffs'

section 2 challenge. The court enjoined

elections in 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 coutrt approved the

State I s proposed remedial districts for

six of the seven challenged districts. The

court entered a temporary order providing

for elections in 1984 only in one dis-

trict, former House District No. 8, after

appellants I proposed renedial plan i'as

denied preclearance under section 5. The

remedial aspects of the Iitigation have

not been challenged and are not before

this Court.

On appeal appellants have disputed

the correctness of the three judge

district courtrs decision regarding the

Iegal ity of five of the six disputed

multi-member districts. Although appel-

lants have referred to some facts from

member districts used by the state and
the district court did not rule that the
use of nulti-rnember districts is Pe-r-
se il1ega1. The district courtrs orffi
Eaves untouched 30 nulti-member districts
in the House and 13 in the Senate.



7

House District No. 8 and Senate District
No. 2, they have made no argument in t,heir

Brief that is pertinent to the lower

court t s decision concerning either of

these districts.S tike the united states,

we assume that the correctness of the

decision .below regarding' House Distriet
No. I and Senate District No. 2 is not

within the scope of this appeal.

THE FINDINGS OF THE DISTRICT COURT

The gravamen of appellees I claim

under section 2 is .thaE minority voters in
the challenged multi-member districts do

not have an equal opportunity to partici-
pate effectively in the political process,

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



8

a'nd particularly that t'hey do not have an

egual opportunity to elect candidat,es of

their choice. Five of the chal.lenged 1982

multi-member districts were the same as

had existed under the 1971 pIan, and the

one that was different, Eouse District 39,

rras only modified sIightly. The election

results in.those district,s are undisputed.

Until 1972 no black since Reconstruction

had been elected to the legistature from

any of the counties in question. The

election results since 1972 are set. forth

on the table on the opposite page. As

that table indicates, prior to 1982 no

more than 3 of the 32 legislators elected

in any one election in the challenged

districts were black, 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-



9

tor. The black population of the chal-

Ienged districts ranged from 21.8t to

39.5t. JA 21.

, The district court held on the basis

of this record and its examination of

election results in loca1 offices' that

'It]he overall results achieved to date

.o. are minimal.o JA 39. The court noted

thatl following t,he filing of this action,

the number of successful black legislative
candidates rose sharply. It concluded,

however, that the results of the 1982

election were an aberrat,ion unlikely to

recur again. ft emphasized in particular
that in a number of instances trthe

pendency of this very litigation worked a

one-time advantage for black candidates in

the form of unusuaL organized political
support by white leaders concerned to

forestall single-member districting." JA

39 n.27.



10

The district court identified a

number of distinet practices which Put

black voters at a comparative disadvantage

whe n placed in the six ura jority white

multi-member districts at issue" The

court noted, first, that the proportion of

white voters who ever voted for a black

candidate was extremely low; an average of

81t of white voters did not vote for any

black candidate in primary elections

involving both black and white candidates,

and those whites who did vote for black

candidates ranked them last or next to

last. JA 42. The court noted that'in none

of the 53 races in which blacks ran for

of f ice did a rnajority 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 candidate

was running unopposed. JA. 43-48. 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

t,hat bl ack voters were at a comparative

disadvantage because the rate of registra-

tion among eligible bLacks was 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

!e bC able tO eleer r.a nri i rrates of the ir

choice. The court found that these

disparities in registration rates were the

Iingering effect of a century of virulent

official hostility towards blacks who

sought to register and vote. The tactics

adopted for the exPress PurPose of

disenfranchising blacks included a polI

tax, a literacy test with a grandfather

clauser 6s well as a number of devices



12

which discouraged registration by assuring

the defeaE of black candidates. JA 25-26.

When the use of the state Iiteracy test

ended after 1970, whites enjoyed a 60.6t

to 44.6t registration advantage over

blacks. Thereafter registration was kept

inaceessible in many places, and a decade

later t,he gaP had narrowed only s1ight1y,

with white registration at 66.7*, and

black registration at 52.7*. JA 26 and

n.lz.

The trial court held that the ability

of black voters to elect candidates of

their choice in majority white districts

was further impaired by the fact 'that

black voters were far poorer, and far more

of ten poorly educated, t'han white voters.

JA 28-31. Some 30t of blacks hgd incomes

below the poverty line, compared to 10t of

whites; conversely, whites were twice as

like1y as blacks to earn over $20r000 a



13

year. Almost a1I blacks over 30 years oId

attended inferior segregated schools. JA

29. The district court concluded that

this lack of income and education made it
difficult for black voters to elect

candidates of their choice. JA 31.. n.23.

The. record on which 'the court relied

included extensive testimony regarding the

difficulty of raising sufficient funds in

the relatively Poor black community to

meet the high cost of an at-1arge cam-

Paign-which hac to rl'ar.h as many as eight I' 
.

times as many voters as a single district
campaign. (See notes 107-109r infra).

The ability 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

whit.es to vote on racial lines. JA 33-34.

The record on which the court relied



14

included such appeals in camPaigns in

1976, 1980, 1982, and 1983. (See page 115,

infra). In both 1980 and 1983 white

candidates ran newsPaPer advertlsements

depicting their opPonents with black

leaders. In 1983 Senator Fielms denounced

his opponent for favoring black voter

regist,ration, and in a 1982 eongressional

run-off white voters were urged t'o. go t,o

the polls because the black candidate

would be 'bussing" lsicl his 'block" lsicl
vote. (See PP. 116-18, infra).

The district court, after an exhaus-

tive analysis of this and other evid€DC€2

concluded that the challenged multi-member

districts had the effect' of submerging

black voters as a voting minority in those

districts, and thus affording them "Iess

opportunity than ... other members of the



15

electorate to Participate in the political

process and to elect rePresentatives of

their choice." JA 53-54.9

SUI.iUARY.OF ARGUMENT

Section 2 of the Voting' Rights Act

rras amended i n 1982 to establ ish 'a

nationwide prohibition against election

practices with discrlminatory results.

Specifically prohibited are Practices that

afford minorities "Iess opPortunity than

nt.har mamhorq af thc cl ectorate to

participate in the political process and

to elect representatives of their choiceo.

(Emphasis added). In assessing a claim of

unequal electoral opportunity, the courts

are required to consider the 'totalit,y of

circumstancesr. A finding of unequal

9 Based on similar evidence the court made a
parallel firding concerning the fracturing

. of the minority community in Senate
District No. 2. iIA 54.



16

opportunity is a faetual finding subject

to Rule 52.

City, 
- 

U.S. 

- 
,rt*

The 1982 Senate RePort sPecified a

number of specific factors the Presence of

which, C.ongress believed, would have the

effect, of denying equal electoral oPpor-

tunity to black voters in a majority white

multi-member district. The three-judge

district court below, in an exhaustive and

detailed opinion, carefully analyzed the

evidencb indicating the Presence of each

of those factors. In light of the

totality of circumstances established by

that evidence, t,he trial court concluded

that ninority voters were denied equal

electoral opportunity in each of the six

challenged multi-member districts. The

court below expressly recognized that

section 2 did not require proportional

representation. JA 17.



17

Appellants argue herer BS t,hey did at

t,r ial , that the Presence of equal elec-

toral opportunity is conclusively estab-

lished by the fact blacks won 5 out of 30

at-large seats in 1982, !! months after

the conplaint was filed. Prior to 1972,

howdver, although blacks had run, no

blacks had ever been elected from any of

these districts, and in the eleetion heLd

immediately prior to. t,he commencement of

this action only 2 blacks were elected in
the challenqed districts. The district
court properly declined to hold that the

1982 elections represented a conclusive

change in the circumstances in the

districts involved, noting that in several

instances blacks rron because of support

fron whites seeking to affect the outcome

of the instant litigation. JA 39 n.2'7.



18

The Solicitor General urges this

Court to read into section 2. " PSg se rule

that a section 2 claim is precluded as a

matter of law in any district in which

blacks ever enjoyed 'proportional repre-

sentation" r regardless of whether that

representation ended years 89or was

inextricably tied to single shot voting,

or occurred only after the conmencement of

the l itigation. This .Per E approach is

i nconsistent with t,he "t,otality of

circumstances" requirement of section'2,

which precludes treating any single factor

as conclusive. The Senate RePort ex-

pressly stated that the elect'ion of black

officials was not, to be treated, bY

itself, as precluding a section 2 claim.

Sn Rep. No. 97-417 , 29 n.1.15.

The district court correctlY held

that there was sufficiently severe

polarized voting by whites to put minority



19

voters and candidates 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

eleetions. 'JA 42. Black candidates

. feceiving the highest proportion of black

votes ordinarily receive the smallest

number of white votes. Id.

ARGUI{ENT

r. sEcTroN 2 PRovrDEs MrNoRrrY vorEBs-
AN EOUAL OPPORTT,NITY TO ELECT REPRE-
SENTATIVES OF THEIR CHOICE

iwo decades ago Congress adopted the

Voting Rights Act of 1955 in an attempt to

end a century long exclusion of most

blacks from the electoral Process. In

1981 and 1982 Congress concluded that,

. despite substantial gains in registration
since 1965, ilinorities stil1 did not enjoy

the same opportunlty as whites to Parti-



20

cipate in the political Process and to

elect rePresentatives of their choice'1otnd

that further remedial legislation was

necessary to- eradicate all vestiges of

discrimination from the political pro-

".=".11 
The prbblems identified by Congress

included not' only the obvious impedinents

to minoritY ParticiPation, such as

regist.ration barriers, but also election

schemes such as those at-Large elections

which impair exercise of the franchise and

dilute the voting stpe.ngth of minority

citizens. Although some of these practices

had been corrected in certain jurisdic-

tions by oPeration of the preclearance

provisions of Section 5t Congress con-

S. Rep. No. 97-417 | 97th
34 (1982) (hereinafter
Reportn ) .

Senate RePort 40; [I.R.
97th Cong., 1st Sess.,
inafter cited as "House

Cong. , 2d Sess. ,
cited as "Senate

Rep. No. 97-227,
31 (1981) (here-
Report" ) .

10

11



21

cluded that their eradication required the

adoption, in the form of an amendment to

Section 2, of a n3tionall 2prorribition

against practices with discriminatory

results.l3 section 2 protects not only the
:':right to voter but, also {the right to have

the vote counEed at fulI value'without

dilution or discount.i Senate Report 19.

A. Leqislative Historv of the 1982
Amendment to Sectron 2

The present language of section 2 was

adopted by Congress as part of the Voting

Rights Act Amendments of 1982. (95 SEat.

1 31 ) . The 1 982 amendments altered the

Voting Rights Act in a number of ways,

House Report , 28t Senate RePort 1 5.

Appellants and the Solicitor General
concede that the framers of the 1982
amendments established a standard of proof
in vote dilution lawsuits based on
discrininatory results a1one. Appellants I

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

12

13



22

extendlng the pre-clearance requirements

of section 5, modifYing the bailout

requirenents of section 4t continuing

until 1992 the languhge assistance

provisions of the Act, and adding a new

requirenent of assistance to bIind,

disabled or illiterate voters. Congres-

sional action to amend section 2 was

prompted by this Courtts decision in

trlobile v. Bolden, 446 U.S. 55, 50-61

( 1 980) ' which held that the original
language of section 2, as it was framed in

1965, forebade only election practices

adopted or maintained with a discrirnina-

tory motive. Congress regarded the

decision in Bolden as an erroneous

interpretation of section 2r 1 4and thus

acted to amend the language to remove any

such intent requirement,.

14 House Rep. at 29i Senate Report at 1 9.



23

tegislative 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 totality of circumstances test to

pracEices which merely had the effect of

discriminating on the basis'of race or'

color.l5 support for such an amendment was

repeatedly voiced during the extensive

Bouse hearings.and mueh of this testimony

rras concerned with at-large election plans

that had the effect of diluting the impact

15

16

of mi nor i ty ,ot.s . 1 5 on Jury 31 the llouse

fl.R. 3112, 97th Cong. , l st Sess. , S 201i
E.R. 3198, 97th Cong., 1st Sess., S 2.

The three voLumes of Hearings before the
Subconmittee on Clvil and Constitutional
Rights of the House Judiciary Committee,
97th Cong., lst Sess., are hereinafter
cited as nHouse Hearings.tr Testimony
regarding the proposed amendnent to
section 2 can be found at 1 Eouse
Hearings 18-19, 138, 197, 229, 355,
424-25, 454, 852i 2 House Hearings 905-07,
993-95, 1279t 1361, 1541; 3 House Hearings
1880, 1991, 2029-32, 2036-37, 2127-28,
2136, 2046-47 , 2051 -58.



24

Judiciary Committee approved a bill that

extended the Voting Rights Act and

included an amendment to section 2 to

remove the intent requirement imposed by

Bo1der,.17 The House version included an

express disclaimer to make clear that the

mere lack of proportional rePresentation

would not constitute a violation of the

1aw, and the Eouse Report directed the

courts not Co focus on any one factor but

17 House Report, 48:

'No voting qualification or Prere-
quisite to votitg, or standard, practice,
dr procedure sfrall be iinposed or applied
by iny state or political subdivision Ito
deny or abridgel !n e M!4g-E- which results
in i lerliar qi a
EnV cltizen to vote on account ot race or
color, or in contravention of the guaran-
tees set forth in section 4(b) (2). The
fact that memberi of a minoritY gr
have not been electecl 1n numDers

sect

e



25-

to look at all the relevant circumstances

in assessing a Section 2 claim. E. Rep.

at 30.

The House Report set forth the

committee I s reasons for disapproving any

intent . requirement, 
. 
and described a

variety of'practices, particularly the use

of at-large electionslS"rrd limitations on

the times ard plaees of registrationrl9with
whose potentially discriminatory effects
the Conmittee was particularly concerned.

On the floor of the House 66 proposed

amendment to section 2 was the subject of
considerable debate. Representative

Rodino expressly called the attention of
the House to this portion of the bil1r20ao

which he and a number of other speakers

18

19

20

House Report , 1'l-19,

128 Corg. Rec. E 6842
1981).

30.

31 n.1 05.

(daily ed. Oct. 2l



26

gave suPPor E.21 Proponents of, section 2

emphasized its applicability to rnulti-

member election districts that diluted

minority votes, and to burdensome regis-

tration ard voting practic"".22 A number of

speakers opposed the proposed alteration

to sect,ion 2 r23 and Representative Bliley

moved that the amendment to section 2 be

deleted from the Eouse biII. The 81i1ey

21

22

128 Cong. Rec. EI 6842 (ReP. Rodino), H

6843 (Rep. Sensenbrenner) r II 6877 (ReP.
Chisholm) (daify'€d. r Oct. 2, 1981); 128
Cong. Rec. H lOOt (ReP. Fascell) (daily
ed.1 Oct. 5, 1981).

128 Cong. Rec. [I 6841 (ReP. Glickman;
diLutionf, u gge5-5 (Rep. Hydet registra-
tion barriers), H 6847 (ReP. Bingham;
voting practices, dilutign); H 5850 (RgP.
Wash i nlgton, registration and voting
barrierl); B 5851 (ReP. Fish, dilution)
(daily ed., Oct. 2, 1981)-

128 Cong. Rec. EI 5855 (ReP. Collins), E

6874 (nep. Butler)(daily ed-, Oct. 2,
1 981 ); 128 Cong. Rec. H 6982-3 (ReP.
BliIey) , H 6984 (ReP. Butler, (ReP.
r.lcClory), H 6985 (ReP. But1er) (daiIy ed. r
Oct. 5, 1981 ).

23



27

amendment was defeated on a voice ,ote.24
Following the rejection of that and other

amendments the House on October 5, 1981

passed the bill by a margin of 389 to 24.25

On December 16, 1981 , a Sena-te bill
essentially identical to the gouie passed

bi 1f was i ntroduced by Se.nator t{athias.

The Senate bi1I, S.1992, had a total of 61

initial sponsors, far more than were

necessary to assure passage. 2 Senate

Hearings 4, 30, 157. The particular
subcommittee to which S.1992 was referred,
however, was dominated by Senators who

were highly criticaL of the Voting Rights

Act amendments. After extensive hear-

128 Corg. Rec.
5,1981).

!|. at H6985.

H 5982-85 (daily ed., Oct.24

25



28

ingsr26.o=a of them devoted to section 2l

the subcommittee recommended Passage of

5.1992, but by a margin of 3-2 voted to

delete the proposed amendment to section

2 " 2 Se nate Heari ngs 1 0. In ,the f uII

committee Senator Dole proposed language

which largely restored the substance of S"

1gg2; included in the DoIe proposal was

the language of section 2 as it was

ultimately adopted. The Senate Cornmmittee

issued a Iengt,hy rePort describing in

detail the PurPose and impact of the

seetion 2 amendmenE. Senate Report 15-42.

The report'expressed concern with two

distinct types of practices with poten-

rial1y discriminatorY effects--first,
restrictions on the times, places or

25 rd. ttearings before the Subcommitee on
ffi-e Constitution of the Senate Judiciary
Comrnittee on S. 53, 97th Cong - , 2d Sess.
( 1 982) (hereinafter cited as "Senate
Hearings') .



29

methods of registration or voting, the

burden of which would fall most heavily on

mirpriti es r27 drrd, secgnd, election syst,ems

such as those multi-member districts which

reduced or nullified the effectiveness of
minority votes, and impeded the ability of

' minority voters to elect candidates' of
their choice.28 The Senate debates leading

to approval of the section 2 amendment

reflected similar 
"on""rn=.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 all of this
evidence and that no one type of evidence

27 Senate Report, 30 n.119.

28 Senate Report | 27-30.
29 128 Corg. Rec. S 5783 (daily ed. June 15,

1982) (Sen. Dodd); 128 Cong. Rec. S 7111
(daiIy ed. June 18, 1982) (Sen. Met-
zenbaum), S7113 (Sen. Bentsen), S 7116
(Sen. Weicker), S 7137 (Sen. Robert
Byrd).



30

should be treated as conclusio'"'30 Both the.

Senate RePort and the subsequent debates

make clear that it' was the intent of

Congress, in aPplying the amended sect'ion

2 to multi-member districts, to reestab-

lish what it understood to be the totality

of circumstances test that had been estab-

lished by White v.Regester, 412 U'S' 755

(19731r3land that had been elaborated upon

by the lower courts in the years between

White and Bolden.32 The most important and

frequently eited of the courts of appeals

dilution cases was Zimmer v. t'lcKeithen,33

Senate RePort, 2?, 27 -

Senate RePort, 2t 27, 28, 30, 32'

Senate RePort , 16, 23, 23 n.78, 28, 30,
31, 32"

Ziruner was described by t'he Senate Report
a5-f seminal" decision, id. at 22, and
was cited 9 tines in the R-port' !|' at
22, 24, 24 n.85, 28 n.112, 28 n'1T3, 29

n.i I 5r- 29 n.1 15, 30, 32, 33. senator
oeConcini, one of the framers of the DoIe
pioposaf , described Llmmer as " lPl-erh-aps
the clearest exPressiffithe standard of

30

31

32

33



31

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

aff rd sub Dorn. East CarroII Parish School

Board v. ltarshall, 424 U. S. 635 ( 1975 ) .

The decisions applying White are an

important source of guidance in a section

2'dilu.tion case.

'The legislative history of section 2

focused repeatedly on the possibly

discriminatory irnpact of multl-member

districts. Congress was specifically
concerned that, if there is voting along

raoial lines- hlaok rz.rtFl" in A maioril.w

white multi-member district would be

unable to compeEe on an equal basis with

whites for a role in electing public

officials. Where that occurs, the white

majority is able to det,ermine the outcome

of elections and white eandidates are able

proof in these vote
Cong. Rec. S5930
1 982) .

dilution cases. n

(dai1y ed. June
128
17,



32

to take positions without regard to the

votes or preferences of black voters,

rendering the act of voting for blacks an

empty and ineffective ritual- The Senate

Report described in detail the types of

eircumstances, based on the whiEe/zimmer

factors, under which blacks in a muLti-

member district would be less able than

whites to elect representatives of their

choice. Senate RePort, 28-29.

The Solicitor General, in support of

his contention that a section 2 claim may

be decided on the basis of a single one of

the seven Senate Report factors--electoral

success--regardless of the totality of the

circumstances, offers an account of the

legislative history of section 2 which is,

in a number of respects, substantially

inaccurate. First, the Solicitor asserts

that, when the amended version of S- 1992

was reported to the ful1 JudiciarY



33

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

Br. I, 8; Br. II, I n.12. The legislative
situation on ltay 4, 1982 when the Dole

proposal was offered, could not conceiv-
ably be characterized as a ideadlock, " and

was never so described by ahy-supporter of
the proposal. The entire Judiciary
Commi ttee f avored retrrcrting out a bill
amending the Voting Rights Act, and fu1ly
two thirds of the Senate vras committea to
restoring the'tlouse results test if the

Jud ic iar Committee failed to do so.

Critics of the original S.1 992 had neither
the desire nor the votes to bottle up the

bill in Committeer34"rrd clearly lacked the

votes to defeat the section 2 amendment on

the floor of the Senate. The leading

34 2 SenaEe Hearings
( " [W] hatever happens
amerdment, I intend to
reportirT, of t,he Voting
Committeer )

69 (Sen. Hatch)
to the proposed

support favorable
Rights Act by this



34

Senate oPponent of the amendment acknowl-

edged that Passage of the amendment had

been foreseeable rfor many months' prior

to the fuI1 Conmitt,ee's action.35 Senator

Dole commented, when he offered his

proposal, that "without any change the

House bill would have passed. " 2 Senat'e

Hearings 57. Both supportet"36""d oPPo-

nents3Tof section 2 alike agreed that the

35 2 Senate Hearings 69 (Sen- Batch).

35 Senate Retrrcrt, 27 (section 2 "faithful to
the basil intento of the llouse bill); 2

Senate Hearings 50 (Sen. DoIe)("[T]he
conpronise retains the results standards
of the trtathias/Kennedy bi11. llowever, we
also feel that the legislation should be
strenqt,hened with additional language
mhat Iegal standard should
aPPly urder the results test...o) (EmPha-
sTs - added) , 51 (Sen. Dole) (language
"strergthens the tlouse-passed bi11") 58
(Sen. 6iOen)(new Language merely 'cIari-
iies" s.1992 and "does not change muchi),
128 Cong. Rec. S6950-61 (daily ed' June
17, 1962) (Sen. DoIe); 128 Cong. Rec'
83840 (daily ed. June 23, 1982) (ReP'
Edwards).

37 2 Senate Hearings 70 (Sen. Hatch).("The
proPosed compromise is not a comPromise at
ifi, in ny oPinion. The imPact of the



35 -

language proposed by Senator Dole ard

u I t irnately adopted by Congress was

intended not to water down the original

House biIl, but merely to spelI out more

explicitly the intended meaning of

legislation
Horse.38

already approved bY the

The Solicitor urges the Court to give

litt1e weight to the Senate RePort

accompanying S.1 992, describing it as

proposed compromise is not .Iikely to-be
one whit different than the unamended
House measure" relating t,o seet'ion 2i
Senate Report, 95 (additional views of
Sen. Eatch); 128 Cong. Rec. (daily ed.
June 9r 1982) S 6515' S.6545 (Sen. Hatch);
128 Cong. Rec. (daily ed. June 10, 1982) S

6725 (Sen. East); 128 Cong. Rec. (daily
ed.7 June 15, 1982) S.5786 (Sen. Harry
Byrd).

38 The compromise language was designed to
reassure Senate cosPonsors that the White
v. Regester totar itt of circumstances-TE5E
e ntlffitl- i n the House , a nd esPoused
throughout the Senate hearings by sup-
porters of the Eouse passed bill, would be
codified in the st,atute itself . 2 Senate
Eearings 60; Senat,e RePort , 27 .



-35

nerel y t,he work of a .f action. U. S. . Br . I ,

8 n.6i U.Sn Br. TI, 8 n.12, 24 n.49"

Not,hi ng i n the legislative history of

section 2 supports the Solicitorrs
suggestion that this Court should depart

from the long establ,ished principle t,hat

committee reports are to be treated as the

most authoritative guide to congressional

intent. Garcia v. United States, 105

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

whose position the Solicitor would give

particular weight, pr'efaced his Additional

Views with an acknowledgement t,hat " [T]he

Committee Report is an accurate statement

of the inteht of s.1992r ds reported by

the committee."39 on the floor of the

Senate both supporters and opponents of

39 Senate Report 193; see also id. at 195 ("I
express my views not to tat-e issue with
the body of the reporti) 199 ("I concur
with the interpretation of this action in
the Committee Report."), 196-98 (addi-
tional views of Sen. GrassleY).



37

section 2 agreed that the Committee report

constituted the authoritative explanation

of the legislatiorr.40 until the filing of

its briefs in this case, it was the

consistent contention of the Department of

Justice that in interpreting section 2

i It,] he Senate .Report... is' entitled to

greater weight than any other of the

legislative history."4l only in the spring

of' 1 985 did the Department reverse its
position and adsert that the Senate report

faction that

40 128 Corg. Rec. 56553 (daily ed.7 June 9l
1982) (Sen. Kennbdy) ; S6546-48 (dai1y ed.
June 10, 1982) (Sen. Kennedy); 56781 (Sen.
Dole)(daily ed. June 15, 19821i 55930-34
(Sen. DeConcini) r S5941-44, 56967 (Sen.
Irtathias), S6950, 6993 (Sen. Dole), s5967
S5991 -93 (Sen. Stevens) r S5995 (Sen.
Kennedy) (daily ed. June 17, 19821 i
57091-92 (Sen. Hatch), 57095-96 (Sen.
Kennedy) (daily ed.7 June 1 8, 1 982) .

Post-ltiat erief for the United States of
Anrerica, County Council of Sumter County,
South Carolina v. United States, No.

41



38

"cannot be taken as determinative on all

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

newly formulated account of the legisla-
tive history of section 2 is clearly

incorrect.
The Solicitor urges that substairtial

weight be given to the views of Senator

Hatch ,42 ^rd 
hi.s legislative assistant.43 rn

fact, however, Senator Batch was the most

intransigient congressional critic of

amended section 2, and he did not as the

42 In an amicus brief in City Council of the
City of Chicago v. KetEhumi--No.

i-FEieilin this case,
U.S. Br. TI 21 n.43, the Solicitor asserts
that Senator Eatch "supported the com-
promise adopted by Congress"" Brief for
United States as Amicus , 15 n.1 5.

43 The solicitor cit,es for a supposedly
authoritative summary of the origin and
meaning of section 2 an article written by
Stephen Markman. U.S. Br. Ifr 9r 10.
Mr. t{arkman is the chief counsel of the
Judiciary Subcommittee chaired by Senator
Hatch, and $ras Senator Hatch I s chief
assistant in llatch I s unsuccessful opposi-
tion to the amendnent to section 2.



39

Solicitor suggests support Lhe Dole

proposal. On the contrary, Senator Eatch

urged the Judiciary Committee to reject

the DoIe ProPosal ,44and vras one of only

four Committee members to vote against,

it.45 FoIlowing the Committeers action,

Senator Hatch appended to the Senate

Report Additional Views objecting to this

nodified version of section 2-46 on the

floor of the Senate, S€nator Hatch

supported an unsuceessful amendment that

'-'a.r1A h.rua e{-rtrr.le frorn the bill the

amendme nt

adopted

de nou nced

to section 2 that had been

by the committe" r 
4T.rrd again

the language which eventuallY

44 2 senate tlearings 70-74.

45 Jg. B5-8G.

46 Senate Report, 94-101.

47 128 Cong. Rec. s5965 (daily ed. June 17,
1 982) .



40

became Iar.48

Finally, t,he Solicitor urges that the

views of the President regarding section 2

should be given 'particular weighti

because the President endorsed the DoIe

proposal, and his 'support for the

compromise ensured its passage.t U.S. Br.

I, I 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 legislation. But that role is'rot,
as the Solicitor asserts, one of a key

sponsor of the legislation, without whose

48 Inunediately prior to the f inal vote on the
bi11, Senator Hatch stated , ' these
amerdments promise to effect a destructive
transformation in the Voting Rights Act."
128 Cong. Rec. S7139 (daily ed. June 18,
19821 i 'l 28 Cong . Rec. ( daily ed . June 9 |
1982) 56506-21.



41

support the bill could not have been

adopted. On the contrary, the Adninis-

tration in general, and the Department of

Justice in particular, were throughout the

legislative process among the most consis-

tent, adamant and outspoken opponents of

t,he proposed Amendment to section 2.

Shortly after the Passage of the

House bi11, the Administration launched a

concerted attack on the decision of the

Eouse to amend section 2. On November 6,

statement

denouncing the 'new and untested reffectsr

standard, " and urging that section 2 be

limited to instances of purposeful

discrimination, 2 Senate tlearings 763,

a position Mr. Reagan strongly reaffirmed

at a press conference on December 17.49

When in January 1982 the Senate commenced

49 New
coI.

York Times, Dee. 18, 1981, P. B7,
4.



42

hearings on proposed amendments to the

Voting Rights Act, the Attorney General

appeared as the first wit,ness to denounce

section 2 as "just bad J.egislationr'

objecting in part,icular to any proposal to

apply a results standard to any state not

covered by section 5. 1 Senate Hearings

7 0-97 . At the close of the Senate

Bearings in early March the Assistant

Attorney General for Civil Rights gave

extensive testiinony in opposition to the

adoption of the totalit,y of circumstances/

results test. I9.r dt 1655 et seq. Both

Justice Department officials made an

effort to soLicit public opposition to the

results test, publishing critical analyses

in several national nevtspapet"So"rrd, in the

50 2 Senate Hearings 770 (Assistant At-
torney General Reynolds) (Washington
Post), 774 (Attorney General Smith) (

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



43

case of the Attorney General, issuing a

warning to members of the United Jewish

Appea1 that adoption of a results test

would lead to court ordered racial quo-

tas.51 The white House did not endorse the

DoIe proposal until after it had the

support of 13 of the'18'members of the

Judiciary Committee and Senator DoIe had

warned pubLicly that he had the votes
'2necessary to override anY veto.'

Eaving failed to persuade Congress to

reiect - resrr'l ts standard in sectiolr 2r I

the Department of Justice now seeks to

persuade t,his court to adopt an interpre-

tation of section 2 that would severely

limit the scope of that provision. Under

these unusual circumstances the Depart-

51

52

E. qt 780.

Los Arrgeles Times, l,lay
Street Journal, MaY
Senate Hearings 58.

4t 1982, p. 1; WalI
4t 1982r P. 8; 2



44

mentrs views do not appear t,o warrant the

weight that might ordinarily be appro-

priate. We believe that greater deference

should be given to the views expressed in
an ami.cus brief .in this case by Senator

Dole and the other principal co'sponsors of

section 2.

B. Equal Electoral Opportunity is.

Section 2 provides that a claim of

unlawful vote dilution is established Lf,

"based on the totality of circumstances, "

members of a racial minority ohave 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. JA 53-54.

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

1973, Section 2(b) is set
opinion below, JA 13.



45

Both aPPellants and the Solicitor

General suggest, however, that section 2

is lirnited to those ext,reme cases in which

the effect of an at-Iarge eleetion is to

render virtually impossible t'he election

of public officials, black or otherwise,

favored by minority voters. Thus appel-

lants assert that section 2 forbids use of

a multi-member district when it "effec-
tively locks the racial ninority out of

the Political forumr " A. Br. 44, or
ishuts[s] racial rninorities out of the

electoral process" }|. at 23- The Soli-

citor invites the Court to hold that

.section 2 applies only where minorlty

candidates are "effectively shut out of

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

see also i9. 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 aecords to minorities some

minimal opportunity to participate in the

political Proeess. Section 2 requires

t,hat "the political Processes leading to

nomination or eLection' be, not merely

open to minority voters and candidates,

but 'ggg*. open". (Emphasis added) " The

prohibition of section 2 is not linited to

those systems which provide minoriLies

with no access whatever to the political
process, but extends to systems which

afford minorities '1ess opportunity than

other members of the electorate to
participate in the political Process and

to elect representaEives of their choice."

(Ernphasis added) .

This emphasis on equality of opportu-

nity was reiterated throughout the

legislative history of section 2. The



47

Senate rePort insisted repeatedly that

section 2 reguired equality of political

opportuni ty. 54 Senator Dole, in. his

54 S. Rep. 97-417, p. 15 ("equal chance to
BH::i'$::"3".o'l"n."'"i::?:?lrn'.""""???li
20 ('equa1 access to the Pollqi-"?1
process;; at-large elections invalid"if
ifrey give rninoriLies "Iess oPPof tunity
tnair .-.. other residents to participate in
the political processes and to elect
legi6lators of their choice"l, 21 (Plain-
tiifs must Prove they ihad less opportu-
nit,y than did other r.esidents in the
disfrict to participate'in the political
Processes and to elect legislators of
tneir choice") , 27 (denial of "equa1
accesc to the Fo'l i t i eal ProceSSil , 28
(minority voters to have rthe same
opportunity to participate.in the politi-
ci1 procesi as other citizens enjoy";
minority voters entitled to 'an equal
opportunitY to ParticiPate in the
p6iitcaf processes and to elect candi--ilates of their choiceo ) , 30 ( "denial of
equal access to any phase of the electoral
pioc.ss for minorily votersi; standard is
ilhether a challenged practice "operated
to deny the minority plaintiff an equal
opportunity to participate and elect
canaiaates of their choice" i Process must
be "equalIy open to participation PV tlr:
group in question'), 31 (remedy .shouldIssure "equa1 opportunity for minority
citizens to participate and t,o elect
candidates of their choice') .



48

Additional Views, endorsed the committee

reportr and reiterated that under the

language of section 2 minority voters were

to be given "the same opportunity as

others to participate in the political
process and to elecE, the candidates of
their cho1."".55 Senator DoIe and others

repeatedly nade this point on the floor of
the senate.56

The standard announced in White v.

Regestei das clearly one of equal oppor-

tunity, prohibiting at-large elections
which afford minority voters 'less
opportunity than o.. other residents in

Id. at 194 (emphasis onitted); See also
iA. at 1 93 ( "Citizens of all rfE6s-58
Ei'titled to have an equal chance of
electing candidates of their choice. . . . ') 7

194 ("equal aceess to the political
process).

128 Cong. Rec. S6559, S5560 (Sen.
Kennedy)(daily ed. June 9, 1982)i daily
ed. June 17, 1982)i 128 Cong. Rec.
57119-20 (Sen. DoIe), (dai1y ed. June 18,
1 e82) .

55

55



49

the district to ParticiPate in the

political Processes and to elect legisla-

tors of their choic€.r 412 U.s. it 765.

(Emphasis added). The Solicitor General

asserts that during the Senate hearings

three suPPorters qf section 2 described it

as ]merelY a means of ensuring that

minorities were not effectively tshut outt

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

1 1 . This is not an accurate description

of 'the testimony cited by the Solicito''57
L''

57 David Walbert stated that minority
voters had had "no chance" to win elec-
tions . in their earlier successful
dilution cases, 1 Senate Hearings 626,
but also noted that the standard under
White was whether minority voters had an
f,6{'Ea-a1 opportunity" to do so. rd. senator
Keinedy-ltated inat under -ilection 2

minori{ies could not, be "effectively shut
out of a fair oPportunity t'o participate
in the ele: ion". Id. aE 223. Clear1y a
"fair" opportunitflis more than aly
minimal opportunity. Armand Derfner did
use the wo-rds "shut out', but not, as the
Solicitor does, followed by the clause 'of
the political process" . Id. at 81 0. I{ore
impoitantly, both in his-oral statement
(id. at 796, , 800) and his PrePared
sFatement (id. at 811, 818) t'tr. Derf ner



50

Even if it were, the remarks of three

witnesses would carry no weight where they

conflict with the express language of the

bi11, the committee report, and the

consistent statements of supporters. Ernst

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

n.24 (1975).

C. The Election of Some Minority
r

The central argument advanced by the

Solicitor General and the appellants is
that the election of a black candidate in
a multi-member di.strict conclusively

establishes the absence of a section 2

violation. The Solicitor asserts, U S"

Br. I 13-14, that it is not sufficient
that there is underrepresentation now t ot

expressly endorsed the equal opportunity
standard.

!



51

that there was underrepresentation for a

century prior to the filing of the action;

on the Solicitorrs view there must at all
times have been underrepresentation. Thus

the Solicitor insists there is no vote

dilution in Senate Distr LcE'22, whieh has

not elected a black since 1978, and 'that

there can be no vote dilution in House

District 36, becauser of eight rePresen-

tatives, a single black, the first this
century, was elected there in 1982 after
this lit,iqation was filed.

This interpretation of section 2 is
plainly inconsistent with t,he language and

legislative history of the statute.
Section 2(b) directs the courts to

consider ithe totality of circumstancesr"

an admonition which necessarily precludes

giving conclusive weight to any single
circumstance.5S The "totality of circum-

58 rhe Solicitorrs argumenE also flies in the



52

stancesi standard was taken from White v.

Regester, which Congress intended to

codify in section 2. The llouse and Senate

reports both emphasize the importance of

considering the totality of circumstances,

rather than focusing on only one or two

portions of .the reeord. Senate Report 27,

34-35; Eouse Report, 30. The Senate

Report sets out a number of "[tlypica]"
factors to be considered in a dilution

".".r59 of which nthe extent to which

membe'rs of the minority grouP have been

face of t,he language of section 2 which
disdvows any intent to establish proPor-
t,ional representation. On the Solicitor I s
view, even if there is in fact a denial of
equal opportunity, blacks cannot prevail
in a section 2 action if they have t ot
have ever had, proportional representa-
tion. Thus proportional rePresentation,
spurned by Congress as a measure of
liability, would be resurrected by the
Solicitor General as a type of affirmative
defense.

The factors are set out in the opinion
below. JA 15.

59



53

elected to public office in the juris-

diction' is only orl€ I and admonishes

'there is no requirement that any Partic-
ular nurnber of f actors be proved, or that'

a majority of then point one way or the

other. n 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 havlbeen elected under the

challenged practice or structure is just'

6na f ar:t-or. amono the totality of circum-

\)

stances to be considered, and is not

9j:!Slj;!ve.n }|. at 194. (EmPhasis

added).61

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

128 Cong. Rec. S6951 (daily ed- June_l7,
1982) (Sen. Dole); 128 Cong. Rec. S7119
(daily ed. June 18, 1982) (Sen. DoIe).

61



54

The argumenE,s of appellants and the

Solicitor General that any minority
electoral success should f orecl.ose a

section 2 claim rrere expressly addressed

and rejected by Congress. The Senate

Report explains, 'the election of a few

minority candidates does not tnecessarily

foreclose the possibility of dilution of

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

White v. Regester and it,s progeny, as

Congress 'weIl knerd, had repeatedly
disapproved the contention now advanced by

appellants and the so1icitor.62 In white

itself, as the Senate Report noa"il
total of two blacks and five hispanics had

62 "The results test, codified by the
committee bill, is a well-established
on€r familiar to the eourts. It has a
reliable and reassuring track record,
which completely belies claims that it
woulcl make ProPort1.onal representata-
t10n tne stanclarcl tor avolcllnq a vt-o-

ong. Rec.

I

asI.s
56559 (Sen. Kennedy) (daily ed. June 9,
1982).



55

been eleeted from the two multi-member

districts invalidated in that case. Senate

Report 22. Zimmer v. McKeithenr in a

passage quoted by the Senate Report, had

refused to treat "a minority candidate I s

success at the polLs [als conclusit.." 19.

at 29 n.l15. The decision i. llgmer i=

particularly important because in that

case the court ruled for the plaintiffs

despite the fact that blacks had won

twci-thirds of the seats in the most recent

0

dissenters in Zimmer unsuceessfully made

the same argument now advanced by appel-

lants and the Solicitor, insisting'the

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

voting st,rength has been cancelled or

minimized'. 485 F.2d at 1310 (Coleman,

J., dissenting). A number of other

lower court cases implementing White had



63

56

also refused to attach concLusive weight

to the election of one or more minority
candidates. 63

There dE€r as Congress anticipated, a

variety of .circumstances under which the

election of one or moie minority can-

didates might occur despite an absence of

Kirksey v" Board of Supervisors, 554 F.2d
Cross v"

Baxter, 604 F.2d 875, 880 i.7 t EEfTtEfr
eT;--I 9791; united states v. Board of
Supervisors o

allace V.
House, 515 F.2d 619, 523 n"2-T5Effi
Tt75I. See also Seriator Hollings'
@mtrents on the district court decision in
MeCain v. Lybrand, No. 74-281 (D.S.C.
eEI-TZ,-19EffiTTnding a voting rlghts
violation despite some black participation
on the school board and ot,her bodies . 128
Cong. Ree. S5855-55 (daily ed. June 15,
1975). In post-1982 section 2 cases, the
courts have also rejected the contention
that, the statute only applies where
mirprities are completely shut out. See
€.9. r United States v. Marengo CouE
G-nunission 3l t,eiilTfFil) , cert. denied,
(1984); velas@ vffioi
F.2d ror7iffisEE'ffiTg

105 S.Ct. 375
Abilene, 725



>t

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 there were positions to be

fi1led.54 white officials or PoIit'ical

54 rne Solicitor General suggests t'hat the
very fact that a black candidate is
unolposed conclusively demonstrates that
the-Landidate or his or her supporters
rrere simply unbeatable. U. S. . Br. II, 22
n.46, 33.- But the number of white
pot,ential candidates who choose to enter a
pariicuiir at-targe race may well be the
res
tions entirely unrelated to the circum-
stances of anY ninoritY candidate
Evidence that whlte potent'ial candidates
were deterred by the perceived strength of
a minority candidate might be relevant
rebuttal evidence in a section 2 action,
but here aPPeIlants offered no such
evidence to-explain the absence of a
sufficient number of white candidates to
contest all the at-large seats. l{ore-
over, in other cases, t,he Department- of
.ilustice has urged courts to find a
violationof section 2 notwithstanding the
election of a black candidate running
unopposed. See United-tlgtes v. Marengo
coulitv commiss
ffiindings of Fact and
Conclusions of Law for the United States,

I



58

leaders, concerned about a pending or

threatened section 2 action, night

engiDeer the election of one or more

minority candidates for the PurPose of
preventing the imposition of single member

districts.65 The mere fact that minorit,y

candidates.were elected would not mean

that those successful candidates were the

representatives preferred by ninority

filed June 21, 1985r P. 8.

55 Ziilmer v. McKeithenr 485 F.2d at 1307:

"Such success night, onoccasion, be
attributable to the work of poli-
ticians, who, apprehending that the
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
d i f fere nt co ns ideratio ns--namely
that election of a black candidate
will thwart successful challenges to
electoral schemes on dilution
grounds. In either situationr a
candidate could be elected despite
the relative po1 i t ical backward ness
of black residents in the electoral
district. "

I



59 '-

voters. The successful minority candi-

dates might have been the choice, as in
White v. Regesler, 412 U.S. at 755i Senate

Report, 22, of a white political organiza-

tion, or night have been able to win and

retain office only by siding with the

white community onr oE avoiding entirely,
those issues about which whites and

non-whites disagreed. Even where minority

voters and candidates face severe inequal-

ity in opportunity, t,here will occasion-

a1lv be minoritv candidates able to

t

overcome those obstacles because of

exceptional ability or oa 'stroke of luckr

which is not likely to be repeated....'65

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-Iarge election but one.

66 wallace v. House,
( 5th Cir. 1 975) .

515 F.2d 619, 623 n.2



60

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 rnay result in the victory of that

candidaEe over the votersr first choice.57

Where voting is along racial lines, the

only way minority voters may have to give

preferred candidates a serious chance of

victory is to cast only one of t'heir
ballotsr oE "single shootrr and relinquish

any opportunity at all to influence the

57 this is especially true in North Carolina
where, because of the 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 for 2 seats.
If the votes rrere spread evenly and all
voters voted a fuIl slate, each candidate
would get votes fuom 2/3 or 67$ of the
voters. In such circumstances it would
take votes from more than 57t of the
voters to win. N.C.G.S. 163.111 (a) ( 2) .

3



61

election of the other at-large officials-58
Where single shot voting is necessary

to elect a black candidate, black voters

are forced to limit their franchise in

order to compete at all in the politicaL

process. This is the functional equiva-

lent of a' rule which pernitted white

voters to cast five ba1lot,s for five

at-large seats, but required black voters

to abnegate four of those ballots in order

to cast one ballot for a black candidate.

*

58 For examPle, in 1978, in Durham County,
99t of the black voters voted for no one
but the black candidate, who vron. JA Ex-
Vol. I Ex. 8. In Wake CountY in 1978,
approximately 808 of the black voters
supported the black candidate, but
because not enough of them single shot
voted the black candidate lost. The next
year, after substantially more black
voters concentrated their votes on the
black candidate, forfeiting their right to
vote a full slate, the first black was
elected. Similarly in Forsyth County when
black voters voted a full slate in 1980,
the black candidate lost. It was only
after many black voters declined to vote
for any white candidates that black
candidates were elected in 1982. Id.



62

Black voters may have had some opportunity

to elect one representative of their
choice, but they had no oPPortunitY

whatever to elect or influence the

election of any of the other rePresenta-

tives.59 Even where.the election of one or

more blacks suggests t,he possible exis-

tence of some electoral opportunities for

minorities, the issue of whet,her those

opportunities are the same as the oPpor-

59 there is no support'for appellants' claim
that white candidates need black support
to win at-large. Black votes were not
inportant for successful white can-
didates. Because of the necessity of
single shot voting, in most instances
black voters rrere unable to affect the
outcome of other than Ehe races of the few
bl acks who tdon. For examPle, white
cardidates in Durham were successful with
only 58 of the votes cast by blacks in
1978 and 1982r in Forsyth' white can-
didaLes in 1980 who received less than 2t
of the black vote were successful, and in
Mecklenburg in 1982, the leading white
senate eandidate won the general
election although only 5t of black voters
voted for him. Id. See, JA 244.

*



63

tunities afforded to whites can onl'y be

resolved by a distinct,Iy 1ocal aPPraisal

of aLI other relevant evidence.

These comPlex Possibilities make

clear the wisdom of Congress in requiring

that a court hearing' a secEion 2 cliim.'

must cons ider 'the totaL i ty o'f 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

r-6no]rrsive the eleetion of minoritv can-

a

didates, nor directed that such vie-
tories be ignored.T0 The language and

legislative 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 t,hat no blacks ever win elections
than the effect rule in Tit1e VII requires
that no blacks can ever Pass a particular
non-job related test. See Connecticut
v. r6a1 | 457 U.s. 440 (1982)-



64

of minority candidates, but require that

the significance of any such elections be

carefully assessed from a loca1 vantage in
order to determine what light, if dnY,

t,hose events shed, in the eontext of all
relevant circumstances, on the seetion 2

claim at issue.

II. THE DISTRICT COURT REQUIRED NEITHER

ccess

Appellants fIatly assert that the

district eourt in this case interpreted
sect,ion 2 to 'creat Ie] an af f irmative

entitlement to proportional rePresenta-

tion". A. Br. 19. The district court

opinion, however, simply contains no such

eonstruction of section 2. On the

contrary, the lower court exPressly held

that section 2 did no! require Propor-
tional representation, emphasizing that

"the fact that blacks have not been

*



o5

elected under a challenged districting

plan in numbers proportional to their

percentage of the populationo ndoes not

alone establish that vote dilution has

resuLted.' JA 17.

Appellants suggest, in the alternative

that, the district court" "apparent1y"

equated the equal opPortunity required by

section 2 with "guaranteed electoral

successrt A..Br. 14, 15, 35. Again, how-

everr Do such rule of law is espoused in

il

1ow. The

ultirnate factual f indings 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 "less opportu-

nity than do other members of the electo-

rat,e to Part icipate i n the pol itical

process and to elect rePresentatives of

their choice.n JA 54.



56

The Solieitor argues thatl because

the facts as he personally views Ehem did

not violate section 2, the three trial
judges must have been applying an incor-
rect, albeit unspoken, interpretat,ion of

section 2. Thus the Solicitor asserts that

since the triaL court

could not reasonably have found a
violatlon under the proper .. c

standard, Iit] raEher must imPlicitly
have sought to guarantee continued
minority electoral succesqr (U.S. Br.
II, 7, - (Emphasis added1.71

But the district court, whether or not, the

Solicitor thinks it reasonable, found as a

matter of fact that blacks do not enjoy

the same opportunity as.whites to partici-
pate in the political process. The

71 See also u.s. Br. r, 12 (in light of
Solicitorrs view of the facts, misinter-
pretation of the law is 'the only expla-
nation for the district court I s conclu-
sion", 1 8 n. 1 9 (district court "in effectr
interpreted section 2 as imposing a
'proportional representation pIus" stan-
dard).

*



67

Solicitorrs argument is simply an attempt

to t,ransform a disagreement about the

relevant facts, a diiagreement in which

the trial courtts findings would be

subject to Rule 52, into an issue of law'

If the trial courtrs factual findings are

elearly'erroneous they cdtll of course' be

reversed on appeal.. But if both those

factual findings and the 1egaI principles

announced by the district court are sound,

the resulting judgment cannot be over-

turned hy hypothesizinq thit the three

trial judges here t ere PurPosefully

applying legal principles different than

those actually set forth in their opinion'

Although the trial court expressly

construed section 2 not, t'o require

proPortional representation, appellants

. suggest, A. Br- 19-20, that the lower

court implicitly announced that it was



58

applying just such a requirement in the

following passages

The essence of racial vote dilution
in the White v. Regester sense is
rhis: r@use of the
interaction of subst,antial and
persistent racial polarization in
voting patterns (racial bloc voting)
wi'th a chillenged electoral mechan-
ism, a racial minority with dis-
tinetive grouP interests that ard
capable of aid or amelioration bY
government is effectively denied t,he
political power to further those
interests that numbers alone would
presumptivelyr EE United Jewish
Orqanizations v. Carey, 403 U.S.

veitina
voting constituency not raciallY
polarized in its voting behavior.
See Nevett v. Sides, 571 f'.2d 209,
ZIf effi1978)" JA 16.

This passage, which is imrnediately

preceded by discussion of the totality of

circumstances test, and followed by an

exposition of the statutory disclaimer
prohibiting proportional rePresentation,

asserts only that, in the absence of vote

dilution, black voters would possess the

f



69

ability to influence the policies of their

elected officials, not, as apPellants

c1aim, that black voters would be certain

toelectblackofficials.inproportionto
their presence in the population" ' A' Br'

20. The portion of Tevett' t' Sides

referred to by the district court dis-

cusses the extent to which black voters'

intheabsenceofpolarizedvoting'would
have the politieal pot'er to assure that

theirinterestswereprotectedbywhite
af f i.ri11s.72

APPellees in this

and the trial court did

case did not seek,

not ..qoi..r73 any

72

73

Nevett v. Sides, 571 F.2d at 223 n'16'

Indeed appellants proposed. the plan.now in
Ei}""t i6r all thL districts at issue'
*trilt vtas adopted by the court without
,"aification. See suPra, at 5-6'



70

guarantee of proportional rePresentationr

and proportional rePresentation did not

result from the decision below"74

III. THE DISTRICT COURT APPLIED THE
CORRECT STANDARDS IN EVALUATING
THE EVIDENCE OF POT"ARIZED VOTING

. In determining whether a method of

election violates section 2, a trial court

must evaluate rthe extent to which voting

in the elections of the state or political

subdivision is racially polarized." S.

Rep. aE 29.75 Th" court below evaluated the

74 Prior to this litigation only 4 of the 1 70
members of the North Carolina legislature
were black; today there are stilI only 16
black members, less than 10t, a far
smaller proportion than the 22.4t of the
populat,ion who are b1ack. Whites, who are
75.8t of the state populationr st,i11 hold
more than 90t of the seats in the legis-
lature d

75 Racial bloc voting 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 the oPportunity for black
voEers to elect candidates of their



71

lay and expert testimony on this question

and found "that within aLl the challenged

districts racially polarized voting exists

in a persistent and severe degree.' JA

40. Appellants argue that this finding is

erroneous as a matter of law.

Appellants, A." Br. 36, and' the

Solicitorl U.S. Br. II 39, contend that

the court erroneously defined racially
polarized voting as occurring "whenever

less than a majorit,y of white voters vote

for the black candidate-" But the

district courtr guided by the Senate

report and in accordance with the experts

for appellants and aPPellees, in fact

defined racially polarized voting as the

choice, and it a11ows white candidates to
ignore t,he interests of the bl.ack com-
munity and stil1 get elected. See Unitqf
Statel v. Carolene products Co.l-30-11-EE

judge court).



72

extent to which black and white voters

voEe differently from each other in

relation t,o the race of the candidat.".76

The court focused not onIY on t,he

existence but the degree of polarized

voting. As articulat,ed by the court,. the

relevant question is whether a substantial

enough number of white citizens do noq

vote for black candidatesr so that the

polarization operates, under the election

method in question, to diminish the

opportunity of black citizens t,o elect

candidates of their choiee. JA 15-17, 43.

76 Senate Report, 29; JA 40r n"29 t JA 123.
To 1404. See also City of Rome v. Uqited
States, 445 U.S.
lTfTifring 472 E. SuPp. 221 | 226 (D.D.c.
19791 ("Racia1 bloc vot,ing is a sit,uation
where, when candidates of differenE races
are running for the same office, the
voEers will by and large vote for the
cardidate of their own race. ) " Accord, 128
Cong. Rec. 57120 (Sen. Dole)(daily ed.
June 18, 1982).



73

This inquiry is plainly consistent with

the statutory language of Section 2.

A. Summarv of the District Courtrs
Findings

The District Court examined a number

of factors in determining that voting was

severely racially Polarized.
1. The eourt examined the Percent-

^ge77 
of white and black voters who voted

for the black candidates in each of 53

primaries and general ele-ctions in which a

black candidate had run during the three

election years prior to the trial. JA

43-48. The court f ound that r orl the

averager 81.7t of white voters did not

77 appellants conceded that the method used
to assess the extent of racially polarized
voting is standard in the literature and
that the statistical analysis performed by
appelleest expert was done accurately, JA
131-2, 281.



74

vote for any black candidate in the

primary electionsr and "approximately two

thirds of white voters did not vote for

black candidates in generaL eleetions even

after the candidate had won the Democratic

primary and the only choice was to vote

for a Republican or Do orl€' tr JA'42'

2. The district court determined how

often the candidates of choice of white

voters and of black voters were different'

Although, in primaries, black voters

ranked black candidates first or first and

second, white voters almost always ranked

them last or next to the last' JA Ex'

Vol. I Ex. 5-7. In general elections'

white voters almost always ranked black

candidates either last' or next to last in

the multi-candidate field except in

heavily Democratic areas; in those latterr

"white voters consistently ranked black



75-

candidates last among Democrats if not

last or next to last anong all eandi-

dates. i JA 42. If white vot'ers as a

group are selecting different candidates

than black voters as a group, assuming

black voters are in a minoritY, the

polarization diminishes the chances t'hat

the black votersr candidate will be

elected. JA 132-136. fn fact, the court

found t,haL in all but two of the election

contests, the black candidates who were

voters were ranked

l)

last or near last such that they lost

among white voters. JA 42, n.31.78

3. The court considered statistical

analyses of the degree of correlation

between t,he race of voters and the race of

candidates whom they supported. The race

of the voter and the race of a candidate

78 rn describing
used the term
cantn. JA 41-2.

this analysis the court
"substantively signifi-



76

were very closely correlated.79 The court

found that the ProbabilitY of such

correlations appearing by chance was less

than 1 in 100'000. JA 41 and n-30"

Appellantst expert agreed with this

determination. JA 281.

B. The Extent of Racial Polarization was

Won

In addition to their mischaracteriza-

tion of the courtts analysis, appellants

propose a novel standard for assessing the

degree of polarized voting. Appellants

contend that racial Polarization of

voting has no Iega1 significance unless it

Expert witnesses for appellants and
apbellees agreed that the correlation
eoefficient is the standard measure of
whether black and white voters vote
differently from each other. JA 129,
281. Correlations above an absoLute value
of .5 are relatively rare. The corre-
lations in this case had absolute values
between .7 and .98, with most above .9. JA
41 , n.30.

79



77

.always causes blacks to 1ose.80 A. Br. 35r

40. Under appellantsr standard, a theory

not adopted in any vote dilution case they

citer ooY minority electoral success

precludes a finding of racially polarized

voting and bars a section 2 violation, a

resuLt clearly co'ntrary to the intent of

Cgngress. See S. Rep. at 29, n.115 and

pp. 50-64, ggPE. Appellees know of no

80 The solicitor General does not a
appellantsr proposed standard, but
aiiiculates the inquiry as whether "the
impact of racial bloc voting -in combina-
tion with the challenged procedure --here,
multimember districts -- deprives black
voters of equal access to the electoral
pEOC€SS...i U.S. Br. 31-32- Assuming that
-tfre Soticitor General includes with 'equaI
access to the electoral process'r ES t'he
statutory language of section 2 doesr 6rl
equal oplortunity to elect candidates of
black -votersr - choicer the Solicitor
General does not disagree with the
district court t s conception of the
question. The Solicitor General simply
disagrees with the district courtrs
finding of fact as t,o its answer.



78

court which has adopted apPellants I

proposed standard in a section 2 case.

Other courts have found Polarized
voting sufficient to supPort a violation
of section 2. despite a finding of some

electoral success. In MclliI1an v.

Esc?mbia County ,7 48 F'. 2d 1 037, 1043, 1 045

( 1 l th Cir. 1984) (lttcl,lillan II) , the court

found racially polarized voting and a

violation of section 2 despite some black

electoral success, baSed on a finding thaE

'a consistent majority of the whites who

vote will consistently vote for the

blackrs opponent." See also Major v.

Treenl 574 F. SUPP. at 339"

In fact, in 55t of the election
contests analyzed here in which the black

candidate received substantial bl'aek

support, the black candidate did lose

because of racial polarization in voting.



79

That, is', he lostr €v€D though he was the

top choice of black voters, because of the

paucity of support among white voters.

Appellantsr statement that itwo thirds of

all black candidat,es have been success-

ful', A. Br. 45, is misleading.sinee it

only counts bl.ack candidates nho made it
to the general elections and ignores the

many black candidates. who lost' in the

Democratic primaries. Furthermore, of

white Democrais who made it to the general

successful in 1982

and about 90t were successful in earlier
election years. JA 'Ex. 

VoI . I Ex. 13.

Appellants relY on @,
458 U.S. 613 ( 1982) and two post-[lobile

lower court cases, all involving claims of

discrininatory intent under the Fourteenth

Amendment. We do not read the eited cases

to hold that racial polarization is

1egally significant only if it uniformly



80

causes electoral defeat.8l But this Court

need not consider, in the context of this

case, whether appellantst bold assertion

is correet. Assuming arguendo that proof

of absolute exclusion .nay be necessary to

raise an inference of 'discrirninatory

intent, it is not necessary to show t'hat

black citizens have "Iess oPPortunityi

than do whites to elect candidates of

their choice in violation of the results

standard of section 2.

81 The lower court in Rogers v. Lodge found
racial bloc voting @lysis
that included an election in which a black
had rron a city council seat. Lodge v.
Etr.ptr.rn- Ciu^ Na^ 176-ES (S-D- Ga- Oct.Buxton, Civ. No. 176-55 (S.D. GB.DUXL{JIl 7 lvIVo LI9. I tV-JJ \s.v. sq. vee'

trifTTA ) slip. op. at 7-8. rn NAACP v.
Gadsden County sctiool Board ? 691 gF Ta

ffiing of uncon-
stitutionaL vote dilution was upheld
despite the election of one black can-
didate to the school board, a leveI of
electoral success similar to that present
here in Eouse District 21 and House
District, 36.



81

16

ApPellants contend that proof that

white voters rarely or never vote .for
minority candidates does not establish the

presence of polarized voting. Rather, they

urge, a plaintiff must adduce probative

evidence of the motives of the individual

white voters at issue, and must establish

that those voters cast their ballots with

a conscious intention to discriminate

against minority candidates because of the

race of those candidates.32 A- Br. 42-44'

82 app.tlants argue in partieular that proof
ot-nptives of the electorate must take the
form of a mult,ivariate analysis. (App.Br'
43-44). No such nultivariat,e analysis was
presented in White v- RegeslEr-or any of
the other diluEfon cases to whrch congress
referred in adopting section 2. Although
appellants nol, urge that evidence of a
niitivariate analysis is essential as a
matter of law, no such contention h'as ever
made to the district court.



82

This proposed definition of polarized

voting would incorporate into a dilution
claim precisely the intent requirement

which Congress overwhelmingly voted to

remove from section 2. The legislative
history of section 2 is replete with

unqualified statements that no proof of

discriminatory lnt,ent would be required in

a section 2 case, and Congressr reasons

for objecting to the intent requirement in

Bolden are equally aPPlicable to the

intent requirement now proposed by

appellants.83

83 the reasons set out in the Senate Report
for rejecting any intent requirement were
reiterated by individual members of
Corgress. Senate Report 193 (additional
views of Sen. Dole); 128 Cong. Rec. (daiIy
ed. June 9, 1982) 56550-51 (Sen. Kennedy);
128 Corg. Rec. (daiIy ed. June 15, 1982)
56779 (Sen. Specter); 128 Cong. Rec.
(daiIy ed. June 17, 1982) S5931 (Sen.
DeConcini) ; 55943 (Sen. trtathias) ; 55959
(Sen. ltathias); 128 Cong. Ree. (daily ed.
June 18, 19821 S7 109 (Sen. Tsongasli 57112
(Sen. Riegle); 57138 (Sen. Robert Byrd).



83

Congress opposed any intent require-

ment, first, because it, believed that the

very litigation of such issues would.

inevitably stir uP racial animosities,

i nsisting that i nquiries i nto racial

motives 'can only be divisive.' Senate

Report 36. ' Congress contemplated t'hat

under the section 2 tesults test the

courts would not be required to "brand

individuals as racist.' }|. The divisive

effect of litigation would be infinitely
If f rdere resuired to

prove and a federal court were to hold

that the entire white cit,i zenry of a

community had acted with racial motives.

Second, Congress rejected the intent
test because it created "an inordinately

difficult burden for plaintiffs in most

cases.'' (S.Rep. 36) The Senate Committee

expressed particular doubts about whether



84

it might be legal1y impossible to inquire

into the motives of individual voters,

i9., and referred to a then recent Fifth

Circuit decision holding that' the First

Amendment forbade any judicial inquiry

into why a sPecific voter had voted in a

particularuay.84 Congress thought it

unreasonable to require plaintiffs to

establish the motives of local officials;

establishing t,he motives of thousands of

white voters, none of whom keeP anY

records of why they voted, and all of whom

are eonstitutionally immune from any

inquiry into their act,ions or motivations

in casting their ballotsr85 *ou1d cleariy

Id. 35 n. 135, citing Kirksey v---C-ity of
Sackson, 699 F.2d Et@
EfE?Tffiinq Kirks€y v. Citv of Jackson, 563
ilrd-659-T
See also Anderson v. Mills, 554 F.2d 500,
i'6'E=9'-( 5ffi ou th A1 amed a
Spanish Speaki nq orq . v]eiFv-EEffi'6-n

Uifred States v. Executive Committee of

84

85



254 F. SupP. 543. 546 (S.D. Ala- 1955).

86 The courts have consistently entered
findings of racially polarized voting
withouL imposing the additional burdens

',..* ,'.'gea uy appeliints. see uiisiiiiPpi i:'
Republican Executive CommiEtee v. Brooks,

I
fffirnmary alFfirmance of district court
using correlation test) - See also Rogers
,r. Lddg"r !!p!!r 458 U.s-@
ei5iFFi; Siffi-, 7:1- F.. ld .at -1s57-fr;5r;

-85-

be an infinitely more difficult task.85

Counsel for aPpellants contend that

the plaintiffs in a section 2 action

should be reguired to establish the

motives of white voters bY means of

statistics, but at, trial aPpellants I

statistician eonceded it, would be impos-

sibre to do 
"o.87

ffiETiii vllFty of west Eelena | 675 F.2d
ffirr€tr.459ZUll alJ IOUrl \vlLo t,e''t, z

u.s: 801 it gez) ; city of -EEA-EEEqE-I.united sLates, s z

a

United Statese 517 E. suPP. Ydtl luu/
ffi1981), Bt!.14 459 u.s. 1s9
(1982).

Appe.llantsr expert testif ied that many. of
t-he variables which he considers im-
portant, such as a candidaters skills or
posit,ions on the issues, are not quanti-
iiaute. Ee did not suggest how such an
analysis could be Performed, and he

87



85

Third, Congress regarded the presence

or absence of a discriminatory motive as

Largely irrelevant to the problem with

which section 2 was , concerned' Senate

Report 36. The motives of white voters

are equally beside thd point. The central

issue in a dilution case is whether, not

why, . minoritY voters lack an equal

opportunity to elect candidates of their

choice.

In appellantrs view, polarized voting

occurs only when whites vote against black

candidates because of their race, but not

when whites consistently vote against

black candidates because those candidates

corrceded he had never performed oD€. T'
1420, 1 450, JA 283. Even UgggSgLJ.
Zant, 580 F.Supp. 338 (N.D.GEl. '1984),

ffia, 753 F.2d 877 (5th cir. 1985),
AEE pendinq, No. 84- r olr which
aA$Iranffii, holds thffiuch regres-
Jion analyses are incapable of demon-
strating iacial intent wherer 3s heret
"qualita{ive' nonquantlf iable di f ferences
aie involved. 580 F. SuPP. at 372.

I



87

are not able to purchase expensive media

campaigns or obtain endorsements from

local neyrspapers. The reasons appellants

present as a legitimate basis for whites

not voting for black candidates are almost

invariably race related. In the instant

case, for example, the inability of black

candidates to raise large carnpaign

contributions had its roots in the

discrinination that has impoverished most

of the black community. An election system

tes cannot win

because their supporters are Poorr oE

because local newspapers only endorse

whites, or because of white hostility to

any candidate favoring enforcement of

civil righE,s laws , is not a system i n

which blacks enjoy an equal opportunity to

participate in the political Process or

elect candidates of their choice.88

88 uoreover, to require a district court to



88

D. The District Court I s Finding o-f
a

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 that in

each district it presently oPerates to

mi nini ze t,he voting strength of black

voters. t JA 48.

The Solicitor contends that the dis-

Erict court, ignored possible variations in

the extent of polarized voting, asserting

determine which ostensible reasons are
legitimate and which are race related
would be exactly the type of subjective,
nptivational analysis Congress sought to
avoid. If such an analysis were relevant,
even the Solicitor General agrees that it
is rpt necessary in order to establish a
prima facie case, but it is the defen-
dantst burden to Prove it on rebuttal-
U.S. Br. 30, n.57. Accord, Jones v.
Lubbock , 730 F.2d nTr-6 (5tfr:E.-e[;.
Tg5i[lTEigginbotham eoncurring) . No such
evidence rras offered here.



89

the district court adoPted a de-
finition of racial bloc voting
under which racial Polarization
is'substantivelY signif icant"
or "severet whenever " the
results of the individual
election would have been
different dePending uPon whether
it had been held among onIY the
white volers or onlY the black
voters in the election. U-S. Br.
t r. 29.

The Solicitor argues that under this

definition elections in which only 49t of

whites voted for a black would be held to

be "severelY racially polarized'. U.s.

Br. 29. ( Emphasis in original ) - This

argument rests on a misrepresentation of

the Language of the opinion below. The

quoted reference to differences in the

preferences of black and white voters

appears on Page JA 41 of the oPinion,

where the district court correctly notes

the presence of such differences in this

case. The term "severe' does not apPear in

that passage at all, but is used on the



90

next page in a separate paragraph to

describe el.ections in which 81.7t of white

voters declined to vote for any black

candidate. JA 42" The opinion of the

district court clearly distinguishes the

presence of any differences between black

and white voters from a case in which

whites overwhelrningly opposed the candi-

date preferred by black voters, and

equally clearly characterizes only the

latter as'tsevere.o

The primary evidentiary issue

regarding polarized voting that must be

resolved in a section 2 dilution case is

whether the degree of polarization was

suffieiently severe as to materially
impair the ability of minority voters to

elect candidates of their choi"..89 rn

89 while appellants do not challenge the
method appellees I expert used to analyze
the election returns in general, JA 131-2,
281 | appellants claim that appellees I

regression analysis is flawed by what



91

concluding that such impairruent had been

shownr 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

prinary election: Tl" polarization was

mos! severe in House Distriet 8, where an

average of 92.7* of white voters do not

vote for any.black candidate in a primary,

JA 47-48i the dist,rict court correctly

they labeled the "ecological fallacy. "
They assert that instead of using turnout
figuresr aPPellees I expert used voter
registration figures. A. Br. 41. Not
only was this argument made to the
district court and rejectedr JA 40 I n.29 I
but also it is not accurate. Appelleesl
expert, DE. Grofman, did have turnout
figures for each precincE, and he used a
regression analysis to calculate the
tuinout figures by race. Px 12 at PP.
3-8. Infast, appellants' expert admitted

. that he did not know what method Dr.
Grofman used to calculate turnout, JA
279-80, 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

candidate ever to be elected. JA 48.

In the other. districts, the degree of

polarization was sufficiently severe to be

a substantial'impedirneht, although not

necessarily an absolute bar, to the

election of minority candidates. The

average portion of white vot,ers willing to

support a black candidate in a primary was

18t. The proportion of voters that was.

white ranged from 70.5t to 84.9t. JA 21.

In each of the disputed districts the

number of white voters who in primaries do

!g! support the black candidate favored by

the black community constituted a majority

of the entire electorate.90 Under those

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
votirrg for the black candidate to make it



mathematically impossible, is obviously

extremely difficult.
Appellants attack the lower courtts

finding of substantial polarized voting by

selectively citing the record. Of t,he 53

elections discussed by the trial court,

circumstances,

preferred by

possible
evidence
extent of
ing. JA

-93

the eleetion of candidates

black voters ' while not

for hin to win. Moreoverr Do
was presented to show that the
racial polarization was declin-
137, 140.

Bere, while there are a large number of
blackcitizens, because they are submerged
into such large multimember districts,
they are a snal1 percentage of the total
electorate. For example, in Bouse
District 36 (ltecklenburg County), there
are 107r006 black residents, P:i 4(b), JA
Ex. VoI. II, more than enough for two
whole House Districts, id., but because
they are submerged into-an eight member
district, they are only 26.5t of the
population. Beeause the percentage of the
registered voters in each of the districts
which is black is relatively low, ranging
from 15t to 291, it takes little polar-
ization to impede materially the ability
of the black community to elect candidates
of its choice.



94

appellants refer only to 8. A. Br' 36-38'

In most instances, apPellants emphasize

the election at which white support for a

black candidate vras the highest of any

election in that district-91 The highest

proportion of white support for minority

candidates cited by appellants were in the

1g82 Durham County general elections and

t,he 1982 l'tecklenburg County primary' (A'

Br. 36-37), but there were no Republican

candidates in the 1982 general el'ection in

Durham County, and in the 1982 trlecklenburg

County primary there were only seven white

candidates for eight positions in the

primary. JA 46, 44. Thus the white votes

of 471 and 50t in those two races rePre-

sent 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 APPellants' Brief.

(b) (h) ( i) and
See JA 152.



95L

of whites willing to suPport in a con-

tested election a minority candidate

favored by the minority community.

IV. THE DISTRICT COURT FINDING OF UNEQUAL
ELECTORAL OPPORTT'NITY WAS NOT CLEARLY
ERRONEOUS

. A. The C1early Erroneous Rule APplies

Appellants contend that' even if the

district court was applying the correct

Iegal standard, lhe courtrs subsidiary

factual findingsr ES well as its ultimate

ters do not enio

an equal opportunity to elect candidates

of their choice in the disputed districts,
were mistaken. Appellants correctly

describe these eontentions as presenting

a o f actuaL questiorr. "92 The lower courts

ffi also id. at 35 ("no matter
how one weights anffieighs the evidence
presented, it does not add up to a denial
of equal access"), 26 (disputed trial

. court findings made 'in spite of the
factsil, 29 ('[n]othing in the record ..o
supportsr a disputed finding) r 30 n.12



96

have eonsistently held that a finding

under section 2 of unequal political

opportunity is a factual finding subject

to the Rule 52 nclearly erroneous' rule.93

The courts of appeal considering constitu-

tional vote dilution claims prior to

Bolden also applled the clearly erroneous

rule to findings of the trial court.94

(testimony relied on by the trial court
iwas simply not credible" ), 30 (Plqintiffs
".failed-to prove' a subsidiary fact).

93 cof:ains v. City of Norfo-lk, 758 F.2q 5721
, 1985) (sliP

SilfTl;r,Pri#i ?

ciry of r.,uouock ) tzl F.2d 364, 37f-S0
AbiI€D€1 725 F.2d

94 P"rrr.lr v. idas Parish School Bd.r 563

(Coleman, J., dissentitg)' 1314 (Clark,

Tff,f)r Buchanan v. Citv of Jackson, 708
r.za'io



97

Until recently the United states also

maintained, that absent any failure to

apprehend and aPply the correct legaI

standards' a finding of unequal electoral
opportunity under section 2 was a

factual finding subject to Rule 52(a)'

F.R. Civ. P.95'

The Solicitor General now asserts,

however, that Rule 52 does not aPPIy to a

finding of vote dilution under section 2.
' The Solicitor acknowledges that the

5-.---'
Aeterrni nat ion of a section Z claim

'reguires a careful analysis of the

challenged electoral Processr ds informed

by its actual operation.' U.S. Br. II,
18. But, he urges that the ultimate
finding of the trial court based on that'

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

t1 , 1 gg3)
p. 25.



98

analysis nay be reversed whenever an

appellate court views the facts dif-

ferently "

The arguments advanced bY the

Solic.itor do not justify any such depar-

ture f rom' the principJ.es of Bnderson v.,

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

(1985). A number of the cases relied on

by the Solicitor General involved simP1e

matters of statutory constructionr95ot the

meaning of a constitutional right where

the facts were not in disPut.-97

In Bose CorP. v. Consu S0

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 to undertake "an

97 strig4ard Y- washingffi, 80 L.Ed.2d 674
rrr6'ai:-



-99

independent examination of the whole

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

So]. icitor suggests that t,he special

standard of appellate review in Bose

should be extended to any statutory claim

in which ithe stakes'... are too greiC-to.

entrust thern finally t,o the judgment of

the Erier of fact.tr U.S. Br. II 19. But

this Court has already applied Rule 52 to

Fourteenth Amendment claims of purposeful

discrimination in votin9r98 to claims of

discriminatorv effect under seeE,ion 5 of

the Voting Rights Actr99"rd to claims

arising under Title VII of the 1964 Civil
Rights Act.100 The rstakes' i.n each oi these

areas of the law are surely as great as

98

99

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

' 99P8' aE 622-23 '
City of Rome v. United States, 446 U.s.

,998,100



100

under .Section 2. 99.. Llyeska PiPeline

Service v. Wilderness Society, 421 U"S'

24O, 263-54 (1975)" As this Court emph-

asized in White v. Regester, a district

court ca11ed uPon to resolve a vote

dilution claim occupies iits own special

vantage point" from which to make an

" intensely local aPPraisal" of the

existence of racial vote diIutio,,.101 412

ffition of Rure 52 is. particu-
larIy a-p-propriate in a case such as this
wherL [tie ippellantsr brief is replete
wit,h controvirted or clearly inaccurate
factual assertions. For examPle, appel-
lants state without citation, 'In tlalif ax,
several blacks have been elected to the
County Commissioh and the City Council of
noano-ke Rapids." A. Br. 11. This is
false. No 5lack had ever been elect'ed to
either body. JA 233- Appellants staLer
rThe Chair of the trlecklenburg County
Democratic Executive Committee at, the time
of triaL and his immediat,e predecessor are
also bIack. StiP- 126 i A. Br. 8''
St,ipulation 126 actually saY!-, "The
immediate Past Chairman of the Mecklenberg
County Democratic Executive Committee, for
the term from 1981 through t'tay 1983, was
Robert Davis, who is black. Davis is the
only black Person ever to hold that
ffiti.on.' JA 1 05. AppellanEs state that
ilf Forsyth County were divided into



101

U.S. at 769.

Prom rits own sPecial vantage pointi

the court here made detailed and extensive

fact findings on virtually all the factors

the Senate Report thought probative of a

section 2 violation. The findings of the

district court involved " six distinct'
multi-member districts, the circumstances

of which rrere of course not precisely

identical. Appellants neither contend that

these differences are of any importance or

suooest that the trial eourtIs ultinate

finding of unequal electoral opportunity

under the totality of circumstances is any

single member Eouse districts, one
district rrith a population over 55t black
could be formed. stip. 129.' App. Br. 9.
Stipulation 129 in fact says that, two
majority black districts could be formed.
JA 105. The omission is particularly
deceptive since the remedy proposed by
appellants, which was accepted unchanged
by the district courtr contained two
districts in Forsyth County which are
rnajority black in voter registration.



102

less justifiable in any one district than

in the others. Rather, appellants advance

objectlons which they contend are egually

applicable to all the districts at issue "

Appellants attack the district courtrs

ultimate finding by generally challenging

each of the subsidiary findings on which

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

B. Evidence o!-Eri9g rcthg
ar!rDiscrrml natl.on

The district court, after.describing

the long North Carolina historY of

official discrimination intended to

prevent blacks from registering to vote,

as well as some relatively recent efforts

to counteract the continuing effects of

that discriminationr coneluded:

The Present condition .... is
that, ot, 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'
registrition efforts. This
stitewide dePression of black
voter registration 1evels is
generally rePlicated in the
ireas ol the challenged dis-
tricts, and in each is traceable
in part at least E,o the histori-
cal statewide Pattern of offi-
eial discrimination here found

.to have existed. JA 27-28.

Such disparities in black and white

registration, rooted in past and present

discrimination, is one of the factors

which Congress recognized puts minority
votes at a compaiative aisEavantage in

predominantly white ruulti-member dis-

tricts. Senate RePort 28.

ApPellants concede r €ts theY must,

that it was for decades the avowed policy

of the state to Prevent blacks from

registering to vote. A. Br. 25. The

district court noted, for example, that in

1 900 the state adopted a literacy test, for

the avowed purPose of disfranchising black



104

voters, and that that test remained in use

at least until 197A. JA 25" ApPellants

arguer ds they did at tria1, that alL

effects of these admitted discriminatory

registration Practices were entirely

elininated because recent st,ate efforts to

ellminate those effects "have been'so

successful." A. Br. 27. The district

court, however r concluded t.hat recent

registration efforts had not been suffi-

cient to remove ithe disparity in regis-

tration which s.urvives as a legacy of the

Iong period of direct denial and chilling

by the state of registrat,ion by black

cit,izens" JA 27.

The district courtts finding is amply

supported by the record below. In every

county involved in this litigation the

nhite registration rate exceeds that of

blacks, and in many of those counties the

differential is far greater than the



105

statewide disparity.lo'Ig. at n.22. Even

appellants t witnesses acknowledged that

this disparity was unacceptably great. Px

40; T.575-77t 1357i JA 199. There was

d i rect te st imony that t'he history of

mistreatment of blacks continued to deter

blacks from seeking to register. JA 175,

188-89, 211-12, 220-25, 229, 242-43.

APpellants eontend that in the last
few years the state board of elections

has taken stePS to register blacks who

might have been rejected or deterred bv

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

involvement did not begin until 1981 ' and

the record was replete with evidence that,

long after the literacy test ceased to be

1oz rn 1971, the year after use of the
discriminatory Iiteracy test ended, 60.6t
of whites were registered, compared to
44.4t of qualified blacks. As of 1982
that registration gaP had only been
slightly narrowed, with 66.7* of whites
and 52.71 of blacks registered. JA 26.



105

used, local white election officials at

the county level pursued practices which

severely lirnited the times and places of

registration and thus perpetuated the

effects of past discrirainatory practi..". 1 03

Under these circumstances the district
.court was clearly justified in flnding

that, minority registration levels remained

depressed because of Past discriminatory

practices.

103 rn a rurmber of instances registration was
restricted to the county courthouse,
locations that especially burdened the
large numbers of blacks who did not own
cars. JA 220-22, 229i JA Ex- VoI.'I Ex.
37-52. Iocal election officials severely
Iimited 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. 525, 553-55, JA 212, 222-24.



107

c. Evidence of Economic and Educat,ional
Disadvantages

The district court concluded that
minority voters hrere substant,ially inpeded

in their efforts to elect candidates of

their choice by the continuing ef f.ects of

the pervasive discrimination that af-
fected, and to a significant degree

continues to affect, every aspect of their
1ives. JA 28-31.

The court concLuded that Past

discrinination had led to a variety of

social and economic disparities.l04 such

1 04 T6q mean income of black citizens was only
54.9t that of white citizens. APProxim-
ately 30t of all blacks have incomes below
the poverty IeveI, eompared to only 10t of
whites; conversely, the proportion of
whites earning over $20'000 a year is
twice that of blacks. JA 30. Since
signif icant desegregat,ion did not occur in
North Carolina until the early 1970rs,
most black adults attended schools that,
were both segregated and qualitatively
inferior for alI or most of their prirnary
and secondary education. JA 29. See
Gaston County v United States, 395 U:t



108

social and economic disparities were cited

by Congress as a major cause of unequal

opportunity in rnulti-nember district,s.

s. Rep. 29.105 appetlees adduced evidence

documenting these disparities in each of

285, 292-96 ( 1969) . Residential housing
is rigidly segregated throughout the.
state, JA 29, and is almost total in each
of the challenged districts. T. 268, 648,
739; JA 176-7, 201-2, 219, 24Ot 253-4, JA
Ex. VoI. II, Px 3a-8a.

1 05 gevgress deemed evidence of substantial
sociil ard ec-onomic disparities suf f ici.ent
by itself to demonstrate 'that blacks would
bL at a significant disadvantage in a
majority white district. The Senate
Report directs the courts to Presume,
whele those disparities are Present, that
'disproSnrtionate education, employment,
incolne level and'living conditions arising
from past discrimination tend to depress
mirority political participationo.." }J.29 n.114. The ProPrietY of such an
inference was an established part of the
pre-Eglden case law expressly referred to
by coE-r and is an established part of
the post-amendment section 2 case 1aw as
welI. United States v. Marengo County,
izl- r. z
v. Escambia CountY, 748 F.2d IETOA]
ffiIas County, 739 F.2d



109

the challerged district"l06.nd appellants do

not dispute their existence.

Appellants attack the distriet
court I s finding that these undisputed

disparities substantially impeded the

ability of blacks to participat,e effec-
' tively in the political process, asser.ting

that "plaintiffs failed 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 f act i ntroduced fi; evidence which

105 ussl(lenburg County3 T. 243, 436i JA Ex.
VoI. I Ex.3'1, JA 77-89

Durham County: T.64'l-51 ,596; JA Ex.
Vol. I Ex. 39, JA 77-89.

Forsyth Countys T. 595-95, 611, 734, JA
Ex. Vo1. I Ex. 38; Hauser deposition 35,
36, 38

Wake County: T. 130, 1215-18; JA Ex. VoI.
I Ex. 40t JA '77-89.

House District 8: T. 701-03, 740-41 1742-
44i JA Ex. Vol. I Ex. 41-43r JA 77-89.



110

appellant,s assert was missitS, documenting

in detail precisely how the adnitted

disparities impeded the electoral effec-

tiveness of black voters. That evidence

demonstrated that the cost of campaigns

'was substantially greater in large

mult,i-member districts, and that' compara-

tively Poor black voters were less able

than whites to provide the financial

contributions necessary for a successful
. 107canpaign. '-' uinority voters were far less

likely tttap whites to own or have access

to a cEEr without whieh it was often

difficult or impossible to reach polling

107 1. 130; JA 177-79, 180-1, 235-6; JA Ex.
Vol. I Ex. 14-17i Bauser Deposition, 35.
There uras also more general testimony
regarding the net impact of these dispari-
ties. Ji 168, 213-14i 236-7. See David
v. Garrison, bs3 F.2d 923, g27 ,-929-C5EF
ffiTg7?T' Dove v. l{oore_, 539 F.2d 1152,
1154 n.3 ffil; Hendrick v.
warder, 52i F.2d 44, 50 (7ttrtfrTT57sJ -



111

places or registration sites.108 Minority

candidates, living in racially segregated

neighborhoods and a racially segregated

society, had far less opportunity than

white candidat,es to gain -exposure and

develop support among ehe inajority of the

voters who were white.l09

Appellants urge t,hat this evidence

was rebutted by the fact that eight
witnesses caIled 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 ln t,he political process,

108 T. 634t G86; JA 77; JA Ex. voI. r Ex.
37-52. The districL court noted that
25.lt of all black families, compared to
7.3t of white fanilies, have no privat,e
vehicle available for transportation. JA
30.

109 1.7a2, JA 176-81, 213-14, 239.



112

but whether those who participate have an

equal opportunity to elect candidates of

their choice. The mere fact that eight or

even more blacks simply part,icipate in the

electoral Process does not, by itselfr

support any Particular conclusion regard-

ing the existence of such equal opportu-

nity. In this case the instances cited

by appellants as the best examples of the

degree to which the political Process is

open to blacks actually tend to support

the trial court I s conclusions to Lhe

contrary. AII the sPecific pol.itical

organizations which aPPellants insist

blacks are able to participate in are

either civil rights or black organiza-

tions;110on1y two of the individuals cited

1 1 0 15s organizations refered to by appellants
are the Nash County NAACP, the ttlecklenburg
County Btack Caucus, the Second Congres-
sional District Black Caucus, the Durham

. Committee on the Affairs of Black People,
the Wilson Committee on the Affairs of
Black People, the Raleigh-Wake Citizens



by appellants held

both positions were

black single member

113

elective office, and

chosen in majority
district". 1 1 I

D. Evidence of Racia1 APPeals b

The distric.t court concludqd that the

ability of ninority voters to elect

candidates of their choice was signifi-

cantly impaired by a statewide history of

white candidates urging white voters to

vote against black candidates or against

white candidates supported by black

voters:

IRJ acial apPeals in North
Carol ina Political camPaigns
have for the Past thirtY Years
been widesPread and Persistent
. . . . [TI he historic use of
racial appeals in PoIitical
campaigns in North Carolina
persist,s to the Present time and

Association, the Black Woments PoIitical
Caucus, and the Wake County Democratic
Black Caucus. A. Br. 11-12t 30.

1 1 1 JA I oB, stip. 143, JA 201 , 23'l .



114

... its effect is PresentlY .to
lessen to some dbgree the oPPor-
tunity of black citizens to
particiPate effectivelY in -thepolitical Process and to eleet
Landidat,es of their choice.
JA 34.

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" SenaEe Report 29. The noxious

effects of such appeats 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 vot,e in a similar manner in

subsequent races. JA 34.112

112 "The contents of these materials reveal an
unmistakable intention by their dis-
seminators to exploit existing fears and
prejudices and to create new fears and
p."judices" toward black political
[artlcipation. Id. According to 

-a. 
black

wi t nesE at triEl , one of the biggest
obstacles to black candidates is 'con-



115

Appellants object that, of the six

elections referred to by the district
court as i'nvolving racial appeals, only

two occurred within the last 15 years. A.

Br. 32a. But these particular elections

rrere not .cited by the trial court as the

sole instances of racial appeals. Rather,

those six elections $rere listed as the

most blatant examPles, JA 34, and the

opinion added that 'In]umerous other

examples of . . o racial appeals in a great

number of loeal lT;a statewide electlons

abound in the record.' rd. Among

the additional instances of racial appeal.s

documented in the record referred to by

the district court are elections in

1g761 1 13t 9Bo, 1 l4.rrd 1982.1 15

vincing the whit,e voter that there is
rothing to fear from having blacks serve
in elective office.' JA 179.

113 T. 330-3Br 390-91; Px 44.

114 1. 35G-358.



116

ApPellants also urge that the

presence of racial appeals cannot be

proved nerelY bY evidence as to the

content of the advertisements or litera-

ture used by white candidates; rather,

they assert, some form of ln depth pubIlc

opinion poII must be conducted to demon-

strate what meaning white voters acknowl-

edge attaching to the racisL materials

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

Public opinion polls are not, however, the

ordin3ry method of establishing the

meaning of disputed documents; indeed, if

raeial appeals have been effectiver the

white voters to whom those appeals were

addressed are unlikely to discuss the

ma.Eter with complet,e candor. Local

federal judges, with personal knowledge of

115 1.3541 357-69; JA 164-67i;JA Ex. vol. r
Ex. 23-26t 35.



117

the English language and the culture in
which they live, are entirely comPetent to

comprehend the meaning of the spoken and

writ,ten word in a wide variety of con-

, , 
exts, including poli-tical appeals' No

publ1c opinion poit: ia necessaty to

understand the significance of appeals

such as iWhite People Wake UP', T. 245-46i

JA Ex. Vol. I Ex. 21r oE to realize why,

although typically unwilling to provide

free publicity to an opponent, a candidate

would Frrhr i c.i -e a photograph of his

opponent neeting with a black leader. T.

355-58; JA 166-67, JA Ex. VoI. I Ex. 35.

Indeed, these judges, all North Carolina

natives conversant with local social and

political realities, were able to deter-

mine that recent racial appeals, while at

times "less gross and viruleDtr' JA 33,

"pick up on the same obvious themes":

iblack domination" over 'moderate" white



118

candidates and the threat of 'negro rule"

or "black power" by blacks "bloc" voting.

8. "'
Evidence of Polarized VotingE.

!:
The sufficiency of the

supporting the district courtrs

polarized vot,ing is set out at

supra o

evidence

finding of
pp.88-95,

F. The Majority Vote Requirement

The district court found that the

majority runoff requirement impaired the

ab'ility of blacks to elect candidates of

their choice from the disputed district,s.
JA 31-32. Although no black candidate

seeking election t,o one of the at-large

116 For example, using a frequent pun for
black, a candidate in 1982 in Durham
denounced his black opponent for "bus-
sing" [sic] his "block" vote to the polls.
JA Ex. VoI. I Ex. 23-26.



t

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 the defeat of black

leg islat,ive candidates, but whether that

rule indirectly interfered with the

ability 6f minority' v6ters to elect

candidates of their choice. The majority

vote requirement has prevented black

. citizens from being elected to statewide,

congressional, and loca1 level positions,

Ert 958-o59, 957, .TA ^n?-4i nv 48, p. 20.

The exclusion of blacks from these offices

has operated indirectly to interfere with

the ability of blacks to win legislative



120

elections.l17 The courtrs findings have a

substantial basis in the record and

corroborate Congresst concern that in vote

dilution cases, majority vote requirements

are "typical factors" which "may enhance

the opportunity for discrimination against

the mirprity group." Senate Report at 29.118

117 Because of the effect of the runoff
requirement in state and local offices,
blaek voters were deprived of an oPPor-
tunity to prepare for legislative elec-
tions by winning 1oca1 office, of the
possible assistance of minority of-
ficials in higher officerand of a pool of
experienced minorit,y campaign workers. T.
142, 192, 950, 967i JA 175-77, 179-80.

118 This Court has also recognized the
discriminatory potential of runoff
requirements. See, e.9., City of--P-ort
erthur v. unitetl-srarel,- {59-E:rT59

United Stqt-q1.
iao u:i.



121

O

G.

Having identified a number of sPecific

aspect,s of the challenged at-Iarge systems

which interfered with the ability of

blacks to Participate in the political

process or elect candidbtes of their

choice, the district court examined as

well actual election outcomes to ascertain

the net impact of those Practices ' The

court concludgd: --

Evidence Regarding Electoral Success

[T] he success that has been
ichieved bY black candidates to
date is, standing alone, too
minimal in total numbers and too
recent in relation to the long
history of comPlete denial of
any elective oPPortunities to
coilpeI or even to arguablY
supfort an ultinate finding- that
a Llacf candidaters race is no
Ionger a significant a-dverse
faclor in the PoIitical Pro-
cesses of the state either
generally or specif ically -in t'he
ireas oi the challenged dis-
tricts. JA 39-40.



122

[tuch of the argument advanced by both

appelLants and the Solicitor General is an

attack on this factual finding.

As the facts stood in SePtember,

1981, when this action was filed, the

correctness of this finding could not

seriously have been disputed. Prior t.o

1972 no black candldate had gver been

elected from any of t,he six disput,ed

multi-rnember districts. From 1972-1980 no

black representatives served in at least

.three of the d istricts; far f rom having,

as the Solicitor suggests, a leve1 of

representation comparable to their
proportion of the populationr at any given

point in time, prior to 1982 more than

two-thirds of the black voters had no

eleeted black rePresentatives at all. In

s i x of the d isputed district,s, with arL

average black population of well over 25*'

a total of 30 legislators were elected at

?



!

123

large. Prior to 1982 no more than. two or

three black candidates were successful in

any erection Year.119

Appellants rely solely on the results

of the 1982 elections in attacking the

findings of the district court' The

outcomeofthelgszelectionsrheldsome
1 4 nonths after the filing of this action'

were strikingly different than Past

elect,ions. Although in 1980 only two

districts had elected black candidates,

r^,rr af rha rlistricts did so in 1982. For

the first time in North Carolina history

two bLacks were elected simultaneously

from the sime rnulti-member legislative

district, resulting in five black legis-

lators .120

ffiat," number of black elected
officials remains quite low, and !1" not
increased significantly since 1975' JA
35; JA Ex- VoI. I Ex ' 22'

1 20 al6oughappellees state that seven blacks
were etect-ea in 1982, two were elected



124

Appellants contended at tr.ial that
the 1982 eleetions demonstrated that any

discriminatory effect of the at-large
systems had, at least since the filing of
the conplaint, disappeared. The district
court expressly rejected that contention:

There are intimations from recenthistory, particularly from the lggzelections, that a more substanlial
breakthrough of success could be
imminent --but there were enoughobviously aberrational aspecLs
present in the most recent electionsto make that a matter of sheer
speculation. JA 39.

The central issue regarding the
significance of minority electoral success

is whether.the district courtsr evaluation
of the obviously unusual 1992 election
results nas clearly erroneous. The parties
offered at trial conflicting evidence

from majority black House districts in
section 5 covered counties which althoughthey include some counties in SenaieDistrict 2, are not in question here.Stip. 95, JA 94i JA 35.



t

125

regarding the significance of the 1982

election".121 th" evidence suggesting that

t,he 1982 elections were an aberration was

nanifestly sufficient to support the trial

courtts conclusion. Firstr €ts the district

court noted, t,here 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 rn Forsyth County, for example, appel-
lants pointed to isolated instange.s 9f
electoial success prior to 1982 which the
court weighed in conjunction with evidence
of electoral failures such as the defeat
of all black Democratic candidates,
ineluding appointed incumbents, in 1978
and 1980, -Years in which all white
Democrats Ytere successful- JA 37. fn
House District No. 8, which is 39t black
in PoPulation, no black had ever been
etectea and from Mecklenburg, 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 prior to 1982.
JA 36. Dloreover, as in Forsyth, in general
elections wherever there was a black
Democrat running, black Democrat,s were the
only Democrats to lose to Republicans. JA
1 35.



126

purpose of influencing this litigat,ion and

preventing the introduction of single

member distrlcts.122 Second, in Mecklenburg

County there were fewer whit,e candidates

than there were seats, thus assuring that

a black cardidate would win the primary .123

Third, conversely, in Forsyth County there

vras such a surfeit, of white candidates

that the splintering of the white vote

gave blacks an unusuar opportunity.l24

122 Hauser Depositionr 49i JA 259-60.

123 7a 44. [loreover, the black candidate who
lost in the general election was the only
Democratic candidate to lose. In Eouse
District 23, there were only 2 white
candidat,es for 3 seats in the 1982
primary, and the black candidate who won
ran essentially unopposed in the general
election, but st,iIl received only 43t of
the white vote. JA 46, 142-3' 153.

124 ga 137--8. There were 9 white Democratic
candidates, none of them incumbents,
running for 5 seats. Appelleesr expert
testified that t,he likelihood of two
blacks getting elected again in the
multi-member district was "very close to
zeto.n Id.

*



t,

127

Fourth, in 1982r is occurs only once every

six years, there was no statewide race for
' either President or United States Senate,

as a result of which whlte and Republican

turrput was unusually low.125 Fifth, in one

cou nt,y , 'bI ack leaders had been able to

bring about the election. of a black

legislator only by selecting a candidate

who had not been visibly outspoken about

the lnterests of the black community.126

Fina1ly, in a number of instances black

cendidates won solely because black voters

in unprecedented numbers resorted to

125 'y.l4z-144 t 179 i JA 1 37-39, 140. white
turnout was 20t lower than in 1980.

1 25 Hsuser Deposition 42-43iJA 205-6. The
ability of some blacks to get elected does
not mein they are the rePresentatives of
choice of black voters. t 691, 1291-4,
1299, JA 214-15.



128

single shot voting, forfeiting their right
to participate in most of the legislative
elections in order to have some oPpor-

tunity of prevailing in a single race .127

The success of black candidates in

1982 rras viewed by the court as a con-

caitenation of these various factors, each

of which either rras a freak occurrence

1 27 gvpsrts for both appellants and appellees
agreed that black voters had to single
shot vote in order to eLect black can-
didates in the districts at issue. T.
797-8, JA 136t 148-49, 150,278-79. Lay
witnesses for both parties also agreed
that the victories of black candidates
were due in large measure to extensive
single shot voting by blacks. T. 1099, JA
228,258-59.

!



129

over which appellees had no control ,128 o'

in and of itself underscored the inequal-

ity in the multi-member election system '129

128 15s likelihood, for exampLe, of repeating
successfully the 1982 election of blacks
in the challenged Forsyth House District
was "very close to zeto.' JA 137 ' llore-
over, untiF-e white Democrat's1 not a single
one of whom lost in the 1982 general elec-
tions, black Democrats in the other
districts stiIl enjoyed only haphazard
suc
sented with the fact situation of Whitcomb
v. Chavis, 403 U.S. 124 ( 1 971 ) '-

129 Tt1s necessity of single shot voting is a
distinct handicap because it exacerbates
the competitivL disadvantage rninority
voters ilready suffer because'of their
numerical submergence. Yghite voters get
to influence tha election of all candi-
dates in the multi-seat system, whereas
blacks must relinquish any oPPortuniEy to
influence the choice of other rePresen-
tatives in order to concentrate their
votes on the minority candidate. As a
result, white candidates can ignore the

. interests of the black community with
inpunity. See discussion suPra at
59-62.

!



EI.

130

Responsiveness

Appellees did not, attemPt to Prove

the unresponsiveness of lndividual elected

officials. In a section 2 case unresPon-

siveness ls no: an essential Part of

plalntlff's case.130 Senate Report 29

n.1 16;131 eppellantsr de mininus evidence

130 15is Court held in Rogers v. Lod?e, 458
u.s. 513, 625 n.91 t@ness
is rpt an essential factor in estabtrishing
a claim of intentional vote dilution under
t,he Fourt,eenth Amendment.

131 'gss6use section 2 protects the right to
participate in the Process of government,
"not slmply access to the fruits of
government", and because rthe subjective-
ness of determining responsiveness' is at
odds with the Congressional emphasis, a
showing of unresponsiveness might, have
some probative value, but a showing of
responsiveness has 1itt1e. United $tates
v. [arengo Councy, 7'si F.zdffi
ffiock County, 727 P.2d at
38l r on of section
2 despite a finding of responsiveness);
Mcl'lillan v. Escambia County, 748 F.2d at

)

C



ll
{

131

of responsivenes=l32t.y be relevant rebuttal

evidence, but onIY if aPPellees had

attempted at trial to prove unresPonsive-

ness. Id.

I. Tenuousness of the State Policy for

The district court correctly recogn-

ized that while departure from established

state policy may be Probative of a

1 32 169 only testimony cited to support their
assertion that appelleesr "witnesses

, conceded that their legislators were
. respo

of one witness who testified on cross-
examination that of twelve Representatives
ard Senators from lrlecklenburg County, two,
the black representative and one white
representative, \rere responsive. JA
184-86. The only other evidence was the
self serving testinony of one defense
witness, listed in toto in footnote 14 to
appellants' brief . Furthermore, appellants
assertion that white rePresentatives must
be responsive because nwhite candidates
need black support to win" A. Br. at 34,
is not supported by the reeord. In the
challenged districts, white candidates
consistently won without suPport from
black voters. See, 9.83, 62 n.69 t JA
231 -2.

a

G



132

violation of section 2, a consistently

applied race neutral policy does not

negate apPell.eesr showing, through other

factors, that the challenged practice has

a discrininatory result. JA 51, citing S.

Rep. at 29, n.117.

In this ease, the district court did

not find the aPPlication of a consistent,

race-neutral state Policy. In fact, after

the Attorney General in 1981 objected

under section 5 to the 1957 prohibition

against dividing counties, both covered

counties and counties not, covered by

section 5 were ,itivided.133 JA 52-

The Attorney General found that the

use of large multi-member district,s

"necessarily submerges" concentrations of

black voters in the section 5 covered

counties. Based on the totalitY of

1 33 The challenged plan divided
counties not covered bY Section

,l

t

?
a

t
nineteen

5.



133

relevant circumstances, the court below

s iroilarly concluded that, i n the non-

covered counties as wel1, black citizens

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

white multi-member dist,ricts and to eIeCE

representatives of their cholce.

The decision of the district court

rests on an exhaustive analysis of the

'electoral conditions in each of the

challenged districts. The lower court

made detailed findings identifying the

I
l{

specific obstacles which impaired the

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

districts. The trial court.held

... the creation of each of the
multi-member dist,ricts chal-
lenged in this action results in
the black registered voters of
that district .o. having Iess
opportunity than do other
members of the electorate to
participate in the political



-' 13{

ProceEs and t,o elect Eepl€Bah-
Latlver of thelr cholce. JA
5{.

Ahls ulttuate flndtng of fact, unless

clearly erroneous, ls gufflelent as a 
*matter of law to requlre a finding of

llablllty urder section 2.

I



.\

135 -

CONCLUSION

The decision of the three judge

district court should be affirmed-

.' ResPectf uIlY submitted,

JULIUS f,. CHAMBERS'
ERIC SCHNAPPER
C. T"ANI GUINIER *

NAACP Legal Defense
and Educational Fund, Inc.
16th Floor
99 Hudson Street
New York, New York 10013
1212) 219-1 900

Perguson, Watt, Wal1as,
e Adkins, P.A.
951 S. IndePendence BIvd
Charlotte, North Carolina 28202
(704) 375-8461

ATTORNEYS FOR APPELLEES, RaIPh
Gingles, et aI.

*Counse1 of Record

DATED: AUGUST 30, 1985



MR, CHrer Justtce, rF IT pLEASE THE Counr

THIs APPEAL PRESENTS A LIMITED ISSUE WHETHER THE

UI STRICT LOURT BELOI^I/ APPLY ING THE TOTALITY OF C IRCUMSTANCES

STANDARD MANDATED BY CoTgRESSI PROPERLY FoUND THAT BLAcK

CITIZENS IN THE CHALLENGED ELECTORAL DISTRICTS I4ERE DENIED

EOUAL OPPORTUNITIES TO PARTICIPATE IN THE ELECTION OF

STATE LEGISLATORS AND TO ELECT CANDIDATES OF THEIR CHOICE,

THe Soltc rroR GEnrRer Rruo rHE Srarr ArtonirEy GeneRnl, sEEKING

IN EFFECT A DE NOVO DETERMINATION OF THE FACTS, CONTEND THAT

THE DtstRtcr Counr ERRED,

AltHouon cHALLENGING A puRELy FAcruAL DETERMINATioN,

THE Sot-lctroR GeruEnRl ARGUES THAT rHr DISTRIcT Counr AppLIED

t

] nru I NcoRREcr LEGAL sTANDARD Ar{D THAT THE uLT I I'4ATE sEcT I oN 2

DETERMINATIoN IS Too IMpoRTANT To LEAVE To rHE DISTRicT CouRT,

THe STnTT ARGUES FURTHER THAT THE FAcTUAL DETERMINATION

WAS WRONG.



-2-

ApprllEes RESpEcrFuLLy sUBMIT THAT THE Dlstntct Count,s

ACTUAL DETERMINATIoN oF A Secrtoru 2 vloLATroN IN EAcH oF THE

CHALLENGED DISTRICTS IS MORE THAN SUPPORTED BY THE RECORD

AND THE CONgNESSIONAL PURPOSE IN AMENDING SEcTIoru 2 eno

F SH,ULD BE AFFIRMED.
L

WHEru THIS AcrtoN r4AS FrLED IN 1981,3 BLACKS, AMoNG lZ0

MEMBERS 0F THE Nonrn CanolrruR Housr oF RTpnTsENTATIVES, sERVED

II'I THE HOUSE, OR APPROXIMATELY 27", OITIE BTRCT, FROM A DI STRICT

NOT INVOLVED HERE, SERVED IN THE STITT STruaTe wITH 49 oTHER

Srerr PoPULATIoN t,'tAS BLAcK,

As rHr DISTRIcT Counr FouND, THE LIMITED BLAcK REpRESEN-

TATI0N IN THE Srere LeotsLATuRE AS wELL AS IN ELEcTED

POSITiONS GENERALLY (NPPNOXIMATELY 2OO SLNCrcS HELD ELECTED

POSITIONS) WNS CAUSED BY A NUMBER oF FAcToRS WHICH CoNTINUED

THROUGH THE TRIAL OF THIS ACTION TO AFFECT ADVERSELY THE

AB]LITY AND OPPORTUNITY OF BLACKS TO PARTICIPATE IhI THE

ELECTORAL PROCESSES AND TO ELECT REPRESENTATiVES OF THEIR CHOICE,



7

Rrvrewlrue rHE FAcToRS CoTSRESS HAD TAKEN FRoM l,{Hltr v,

RrorsrEn eruo Ztnmrn AS AppRopRrATE IN Srcrtoru 2 votE DILUTIoN

cASES, THE Dlsrnrcl Counr FouND A pERVASIVE HISToRy oF

DISCRIMINATION BY THE STaTe AGAINST BLAcKS WHIcH CoNTINUED

TO AFFECT BLACK VOTER POPULATION,

Iru THE EARLY 19OO,s, BLACKS WERE EFFEcTIVELY DISEN-

FRANCHISED BY LITERACY TESTS AND POLL TAX REOUIREMENTS.

IN ADDtrtoN, THE Srnrr IMposED MULTI-MEr"1BER, AT-LARGE DISTRIcTs

WITH NUMBERED SEATST ANTI-SINGLE SHOT AND I,IAJORITY VOTE

pRovrsroNS, Tnrsr pRAcrtcES FoR ALL pRAcrtcAL puRposES

TOTALLY EXCLUDED BLACKS FROM THE ELECTORAL PROCESSES AND

FRoM ELECTED oFFIcES UNTIL THE EARLy 1950's, Tne FIRST

BLAcK IN THIS cENTURY I^{AS ELEcTED TO PUBLIc OFFIcE IN 1948.

Bv 1970, oNLy 62 elecrs STATEWTDE HELD ELEcTED oFFIcES.

THE FIRST BLAcK ylAS ELEcTED To rHE Srarr LrorslRruRe

IN 1968, BETwEEll 1968 nruo 1982 BLAcKS AT No riME coNSTrrurED

MORE THAN U% OF THE STNTT STI'iATT, NOR MORE THAN 3.37" OF THE

Srarr HousE,



-4-

In ADDITIoN To rHE Stete's EFFoRTS To DISENFRANcHISE

BLAcK crrrzENS, rne DISTRtcT Count FouND orHER pRAcrrcES

WHICH CONTINUE TO PREVENT EOUAL PARTICIPATION BY BLACKS

IN THE AT-LARGE ELECTORAL DISTRICTS INVOLVED HERE.

HISToNICAL DISCRIMINATIoN AGAINST BLAcKS DEPRIVED THEM oF

EOUAL JOBS, ESUAL HOUSING AND EAUAL EDUCATIONAL OPPORTUNITIES

y,lHiCH AFFECT THEI"1 ADVERSELY IN LARGE AT-LARGE ELECTORAL

DISTRICTS, RRCIAL VOTE APPEALS WHIcH HAVE cHARACTERIZED

Nonrn CRRor-truR ELECTIoNS THRoUGH THE pRESENT HAVE DIScoURAcED

WHITF CITI'FNS FROM SIIPPORTING BLACK CANDIDATES OR WHITE

CANDIDATES t^tHo SEEK To PRoTECT BLAcK INTERESTS, TnT DISTRIcT

CoURT FoUND THAT iN ALL THE ELECTIoNS ANALYZED FoR THIS

PROCEEDING THROUGH TRIAL/ RACIALLY POLARIZED VOTING

DOMINATED SO THAT IN ALL ELECTIONS, EVEN WHERE A BLACK

CANDIDATE WAS UNOPPOSED, THE MAJORITY OF WHITE VOTERS

REFUSED To SUPPoRT THE BLACK cANDIDATE, OvERaTI, IN THE

ELEcToRAL DISTRIcTS INVoLVED, MORE THAN 81% or rHE

WHITE VOTERS FA]LED TO SUPPORT BLACK CANDIDATES.



tr

IN 7982, 11 BLAcKS wERE ELECTED To rHE Srnrr House

nruO 1 ro THE SrnrE Srruerr. FIVE OF THE 11 WrNr ELECTED

FROM NEWLY CREATED MAJORITY BLACK DISTRICTS NOT INVOLVED HERE;

5 wENE FROM THE MULTiMEMBER DISTRICTS CHALLENGED IN THIS

PRoCEEDING, BLACKS STILL CONSTITUTED LESS THAN 707" AT THE

Srnre HousE AND 3% or rHE SrnrE SeruAtr, ALTHoUGH BLACKS

coNSTITUTE 22,U7" oF THE poPuLATIoN, Wntrrs tlHo MAKE uP

78 pERcEhrr oF THE popuLATIoN MAKE uP 97 PERcENT 0F THE

Srare Srrunrr nruo 90% on rHE Srarr HousE.

NUT,4BER oF REASoNS ANALyzED By rHE Counrr THE succESS

ACHIEVED BY BLACK cANDIDATES IN 1982 WNS,,ABERRATIONAL,

AND,,iTANDING ALONE/ TOO MINiMAL IN TOTAL NUMBERS AND TOO

RECENT II{ RELATION TO THE LONG HISTORY OF COMPLETE DENIAL

OF ANY ELECTIVE OPPORTUNITIES

TO SI.JPPORT AN ULTIMATE FINDING

TO COMPEL OR EVEN ARGUABLY

THAT A BLACK CANDIDATE,S RACE

IS NO LONGER A SIGNIFICANT ADVERSE FACTOR

PROCESSES OF THE STATE -- EITHER GENERALLY

IN THE POLITICAL

OR SPECIFICALLY

JA 39-q0IN THE AREAS OF THE CHALLENGED DISTRICTS,,,



-6-

BIecT cANDIDATES IN THE cHALLENGED DISTRICTS HAVE BEEN

SIGNIFICANTLY LESS SUCCESSFUL THAN WHITE CANDIDATES.

"BLACK CANDIDATES i,,tHOr BETWEEN 1970 AND 19E2, woN IN

DTMOcRATIc PRIMARIES iN THE SIX MULTI-MEMBER DISTRICTS

UNDER CHALLENGE HERE WERE THREE TiMES AS LIKELY TO LOSE IN

THE GENERAL ELECT]ON AS t,,/ERE THEIR wHITE DTmoCRATIc coUNTER-

PARTS, A FACT OF STATISTICAL SiGNIFICANCE IN ASSESSING THE

CONTINUED EFFECT OF RACE IN THOSE ELECTIONS.

THr 1982 ELEcrtor'ls FoLLowED THE FTLINc oF THIS AcrtoN,

INSTANCE, IN THE CHALLENGED DISTRiCTS, THE BLACK CAND]DATES

WERE SUCCESSFUL ONLY WITH THE SUBSTANTIAL SINGLE-SHOT VOTES

OF THE BLACK CITIZENS WHO HAD TO FOREGO THEIR RIGHT TO VOTE

FOR ALL OF THE VACANCIES INVOLVED; THE SUCCESSFUL CANDIDATES

HAD TO BE,,SAFE,, AND APPEALiNG TO THE LIMITED WHITE ELECTORATE

WHO SUPPORTED THEM FOR EVEN tlITH ALMoST 1OOZ SINGLE-SHoT VoTES

BY BLACKS, BLACK CANDIDATES/ WITHOUT SOME }.'lHITE SUPPORT/



-7-

STILL COULD NOT CARRY THEIR MAJORITY },lHITE MULTI-MEMBER,

AT-LARGE DISTRICTS.

Foun BLACK cANDIDATES RAN UNSUCcESSFULLY IN THE

CHALLENGED DISTRIcTS, REcEIVING LESS THAN 35% oT THE I^IHITE

VOTES.

A NUMBER oF orHER FAcroRS (sre Dtsrntct Counr's optNIoN

JA 54-38 Rno AppTLLEE's Bnter, pp, 50-61{) suppoRT THE

Dtsrnlcr CouRT's FINDTNG THAT THE 7982 ELECTIoNS wERE Too

RECENT, TENUOUS AIID ABERRATIONAL TO DEFEAT PLAINTIFFS,

THAT THE DISTNICT CouNT ERRED FIRST BECAUSE IN THE SoLIcIToR

GETERAL,s oPINIoN, IN VIEt^t SoLELY oF THE LIMITED SUcCESS

oF 5 or 9 suacK cANDIDATES IN 5 or rHE 7 cHRr-leNGED DrsrRIcTS,

A SEcrtoru 2 cLAIM t,lAS FoREcLosED, IN THE SoltctroR GEruEnRu's

oprNIoN, rHe DISTRict CouRt wRs SEEKiNG pRopoRTIoNATE

REpRESENTATI0N 0R GUARANTEED BLACK succESS, Tne Srnrr

Arroarury Gerlrnnl coNTENDs rHAT REcENT EFFoRTS To REGISTER

BLACKS AND THE T982 SUCcESS oF THE 5 gLecK cANDIDATES



-8-

IN THE CHALLENGED DISTRICTS DEMONSTRATE THAT BLACK VOTES

ARE NOT DILUTED. ADDITIoNALLY, BoTH CoNTEND THAT THE

Dtsrntct Count usED AN INcoRREcr sTANDARD, 50% or rHE

WHITE VOTES, IN DETERMINING RACIALLY BLOC VOTING.

Tue STRTe ADVANCES ANoTHER ARGUMENT, NAMELY IF oNE BLACK

IS ELECTED THIS EFFECTIVELY REFUTES A CHARGE OF RACIALLY

BLOC VOTING.

Tnr SoutcrroR Grruennl AND THE Srerr MrscHARAcrERrzE

rNT DISTRICT COURT,S FINDINGS, ADVANCE A PATENTLY INCoRREcT

IN AMENDING STCTIOru 2 NNOT AGAIN,, INVITE THE COUNT TO CONDUCT

A DE NOVO REVIEW OF THT DISTRIcT CounI,s FACTUAL DETERMINATIoNS,

FIRSTT THIS cASE t,vAS TRIED BEFoRE THREE NATIVES oF

NoRrH CRnottt'tR, Juooe J, Dtcrsoru Pnttutps,

DupnEr aruo JUDGE I{. EenI BnIrr. A FINDING

Juoor FnnruKLrN

UNLAWFUL VOTE DILUTION WITH RESPECT TO THE

oF A Secrloru 2

7 cHnllrNGED

DISTRICTS FOLLOWED ONLY AFTER AND UPON AN INTENSE REVIEW

OF THE ToTAL REcoRD/ THE CouRT,s PERSoNAL KNoWLEDGE AND



-9-

AppLICATIoN oF THE EXpRESS LANGUAGE oF Srcrton 2 nruo ITS

LEGISLATIVE HISToRy. SEE Dlstntcr Counr's 0PINIoN, JA 10-20,

As rHr DrsrRrcr Count STATED:

THT FUNDAMENTAL PURPOSE OF THE AMENDMENT, . .

v{AS TO REMOVE INTENT AS A NECESSARY ELEMENT OF RACIAL

VOTE DiLUTION CLAJMS, , I I

Triis tlAS Accor"lpLISHED By coDIFyiNG IN THE

AMEtlDED STATUTE THE RAC I AL VOTE D I LUT i ON PR I NC I PLES

AppLrED Ias ASSUMED By CoruonEss] By rHE Supnrmr Counr

412 U, S, 755 0973) , , . ,

L , IH]Er'ice R vroLATIoN oF sEcuRED voTING RIGHTS/

coULD BE ESTABLISHED BY PRoCF ,,BASED ON THE TOTALITY

OF CIRCUMSTANCES. , ,THAT THE POLITICAL PROCESSES

LEADING TO NOMINATION OR ELECTION. . ,ARE NOT

EoUALLY oPEN To PARTICIPATIoN,,BY MEMBERS OF

PROTECTED MINORITIES,, I 1



-10-

THT MERE FACT THAT BLACKS CONSTITUTE A VOTING

OR POPULATION MINORITY IN A MULTI-MEMBER DISTRICT

DOES NOT ALONE ESTABLISH THAT VOTE DILUTION HAS

RESULTED, . , ,NOR DOES THE FACT THAT BLACKS

HAVE NOT BEEN ELECTED UNDER A CHALLENGED DISTRICTING

FLAN IN NUI'1BERS PROPORTIONAL TO THEIR PERCENTAGE

I i'l THE F0FULAT I0N ,

THr SoItCITOR Grurnel ARGUES THAT THE Dtstntct CoUnr ERRED

IN FINDING VOTE DiLUTION IN THE CHALLENGED DISTRICTS SINCE

ONE DISTRICT GREATER THAN ITS PERCENTAGE OF THE REGISTERED

DISTRICT/ IN ONE PROPORTIONATE TO MINORITY REGISTRATION

IN THE DISTRICT AND ALTHOUGH IN LESS PERCENTAGE THAN

ITS pERCENTAGE OF THE PoPULATION IN 0NE, THE SOUiclToR

GEnTNRI FELT THAT,,MINORITY CANDIDATES EITHER ARE OR HAVE

BEEN SUccESSFUL AND PLAINLY ARE cOMPETITIVE," THf SoltciToR

GerurnRl ALSo ARGUED THAT THE Dtsrntcr CouRr wRS SEEKING

TO INSURE ,,SAFE,, BLACK DISTRICTS.



-11-

Tnr SrnrE AtroRruev GeruenRl ALSo ARGUES THAT rne DIsrRrcr

Counr wes SEEKING IMpRopERLy ro IMposE oR REoutRE pRopoRTIoNATE

REPRESENTAT I ON.

THe SoIIcIToR Gerurnnl Rruo THE Srnrr SEEK To IMPoSE A

STANDARD IN SEcrroru 2 cASES AT oDDS oR coNTRARy ro

CotloRESSIot'lAL INTENT, As rHE DistRict Counr NorED, Coruonrss

MADE A DELIBERATE POLITICAL,IUDGI',iENT IN AI"lENDING STcTIoiI 2

,,THAT NATIONAL POLICY RESPECTING MINORITY VoTING RIGHTS

COULD NO LOI{GER A\^JA I T THE SEC UR I NG OF THOSE R I GHTS BY NORMAL

LocAL GOVERNMENTS, 0R BY JUDIcIAL REI"IEDIES. LIMITED To

pR00F 0F INTENTIoNAL RActAL DI ScRIMINATIoN,,, JA-19

cotroREss, THEREFoRE, DIREcTED THAT THE couRTS, BASED oN

THE TOTALITY OF THE CIRCUMSTANCES UNDER PARTiCULAR

ELECTORAL SCHEMESI DETERMINE WHETHER BLACKS PRESENTLY

HAVE AN EAUAL OPPORTUNITY TO PARTICiPATE AND TO ELECT

REPRESENTATIVES OF THEIR CHOICE, THT OUESTION IS NOT

PROPORTIONATE REPRESENTATION/ SAFE BLACK ELECTORAL DISTRICTS



-72-

OR RECENT OR ISOLATED SUCCESS OF BLACK CANDIDATES AS THE

SOLICITOR GTNTNRU AND THE STNTT SUGGEST BUT WHETHER FACTORS

ARE PRESENT IN THE SYSTEM, HI STORICAL OR OTHERI{I SE., WHICH

ISOLATE OR EXCLUDE THE BLACK ELECTORATE

DEPRIVE THEM OF AN EAUAL OPPORTUNITY TO

TFIEIR CHOICE,ELECT REPRESEI']TAT ] VES OF

P ROPCRT I OI{AT E

THE DisrRIcT

OR WHICH OTHERWISE

PARTICIPATE AND TO

Fnn FROI,1 DIRECTiNG

REPRE SEIITAT I Oii OR SAFE BLACK ELECTORAL DI STRICTS

CouRI LOOKED AT THE HISTORICAL RACIAL PRACTICES

WHICH PRESENTLY CONTRIBUTES TO THE UNDERREG I STRAT I ON OF

BLACKS, THEIR LIMITED EDUCATION/ THE LARGE MULTI-MEMBER.,

WHITE DOMINATED DISTRICTS, THE CONTINUING RACIAL APPEALS.,

RACIAL BLOC VOTING/ THE NECESSITY FOR BLACKS TO SINGLE-SHOT

FOR A PREFERRED CANDIDATE AND STILL HAVE TO DEPEND ON SOME

I,.IHITE VOTERS/ THE NECESSITY FOR BLACKS OFFERING,,SAFE,

CANDIDATES, THE ABILITY OF WHITE VOTERS TO DETERMINE

AND CONTROL ALL VACANT POSITIONS AND TO IGNORE THE BLACK

ELECTORATE, THE HISTORICAL AND PRESENT SUCCESS OF BLACK



-73-

CANDIDATES, NOT JUST THE LIMITED SUCCESSES OF 1982, THE

TENUOUSNESS OF THE STATE AT-LARCE ELECTORAL SCHEMES; IN

SHORTT ALL OF THE FACTORS PRESENTLY OPERATING WITHIN EACH

CHALLENGED DISTRICT WHICH ENABLED THE COUNT TO DETERMINE

WHETHER IN FACT EQUALITY OF OPPORTUNITY EXISTED,

Trit s I s pREc ISELy rHE TypE oF INTENSE,, LocA.L A.NALysi s

CongRTss MANDATED AND DIRECTED THAT THE coURTS UNDERTAKE

IN Srcrtoru 2 cAsEs,

See Seruele REponr

THts posrrtoN rs ALso suppoRTED By pRe-Boloeru AND posr-1982

Secrtoru 2 cASES,



-14-

CorugNEss wANTED To INSURE THAT No FAcToR oR MULTIPLE NUI'IBER

OF FACTORS OPERATED I{ITHIN AN ELECTORAL SCHEME SO AS TO

EXCLUDE OR TO PROHIBIT THE BLACK ELECTORATE FROM PARTICIPATING

ON AN EAUAL BASIS OR FROM ENJOYING AN EAUAL OPPORTUNITY TO

PARTICIPATE IN THE SYSTEM AND TO ELECT REPRESENTATIVES

OF THEIR CHOiCE.



-15-

2, THe SoIIcIToR GENERaI AND THE STeTE ALSo coNTEND

THAT THT DISTRICT COUNT APPLIED AN INCORRECT STANDARD IN

FINDING RACIALLY POLARIzED VoTING I^,ITHIN THE cHALLENGED

DISTRICTS, FIRST, SEEKING TO CHARACTERIZE THE DISTNICT

count's DETERMINATIoN AS THE AppLICATIoN oF AN INcoRREcr

STANDARD 0F L!,,'l., TrE Soi tc ITOR GElrnrl r,t\D Tt_iE Srr;E COt(TEltf

THAT THE COUNT HELD THAT RACIALLY POLARiZED VOTJNG EXISTED

I F LESS THAN 50,/" OT THE WH I TE VOTERS FA ILED I N AN ELECT I oN

TO VOTE FOR A BLACK CANDIDATE. Srcoruolyr THE Sot_tctroR AND

THE 5TATE ARGUE THAT SINCE A FEW BLACKS WERE ELECTED IN 4

OF THE CHALLENGED DISTRICTS/ THIS CONCLUSIVELY ESTABLISHED

THAT RACIALLY POLARTZED VOTING DID NOT EXIST, THIRD, THE

STaTT coNTENDS THAT ALTHoUGH ITS EXPERT AGREED THAT

PLAiNTIFFS, EXPERT WITNESS USED THE PROPER STANDARD FOR

HIS STATISTiCAL ANALYSES AND THAT HiS CALCULATIONS WERE

CORRECT, HE DID NOT GO FAR ENOUGH AND PROVE THAT VOTERS

VOTED ALONG RACIAL LINES IN THE DISTRICTS EXCLUSIVELY

BECAUSE OF RACE.



\

I

t
I

,i -16-

t

t

Tue SolrcrroR GeruEnll Rruo rHE Srere enE sIMpLy wRoNG

IN THEIR CHARACTERIZATION OF THE DISTRIcT CounT,S FINDING

OF RACIALLY POLARIZED VOTING. AT NO POINT DID THE DISTNICT

Counl HoLD THAT SEVERE oR SUBSTANTIAL RAcIALLY PoLARIzED

VOTINC EXISTED WHICH WOULD WARRANT JUDICIAL RELiEF UNDER

Srcrion i str.lpLy BECAuSE 50 pERcEt,iT oR LESS oF trillrE vcrERS

FA I LED TO VOT E FOR BLAC K CAI{D IDATES .