Appellants' Brief

    No. 83-1968 

IN THE 

&uprtmt Qtnurt nf tqt lluittb &lutts 
OCTOBER TERM, 1985 

LAcY H. THORNBURG, et al., 
Appellants, 

v. 
RALPH GINGLES, et al., 

Appellees. 

On Appeal From the United States District Court 
for the Eastern District of North Carolina 

APPELLANTS' BRIEF 

LACY H. THORNBURG 
Attorney General 

* J ERRIS LEONARD 
KATHLEEN HEENAN McGuAN 
LEONARD & McGuAN, P.O. 
900 17th Street, N.W., Suite 1020 
Washington, D.C. 20006 
(202) 872-1095 

JAMES WALLACE, JR. 
Deputy Attorney General for Legal Affairs 
TIARE B. SMILEY 
NoRMA S. HARRELL 
Assistant Attorneys General 
Attorney General's Office 
N.C. Department of Justice 
Post Office Box 629 
Raleigh, North Carolina 27602 
Telephone: ·(919) 733-3377 

Attorneys for Appellants 
•counsel of Record 

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203 





1 

QUESTIONS PRESENTED 

I. Whether Section 2 of the Voting Rights Act en­
titles protected minorities, in a jurisdiction in 
which minorities actively participate in the politi­
cal process and in which minority candidates win 
elections, to safe electoral districts simply be­
cause a minority concentration exists sufficient to 
create such a district. 

II. Whether racial bloc voting exists as a matter of 
law whenever less than 50 percent of the white 
voters cast ballots for the black candidate. 



ll 

PARTIES TO THE PROCEEDING BELOW 

The Appellants, defendants in the action below, are 
as follows: Lacy H. Thornburg, Attorney General of 
North Carolina; Robert B. Jordan, III, Lieutenant 
Governor of North Carolina; Liston B. Ramsey, 
Speaker of the House; The State Board of Elections 
of North Carolina; Robert N. Hunter, Jr., Chair­
man, Robert R. Browning, Margaret King, Ruth T. 
Semashko, William A. Marsh, Jr., members of the 
State Board of Elections; and Thad Eure, Secretary 
of State. 



Ill 

TABLE OF CONTENTS 
Page 

QuESTIONs PRESENTED ..... ·. . . . . . . . . . . . • . . . . • . . . . . . . 1 

pARTIES TO THE PROCEEDING BELOW . . . . . . . . . . . . . . . . . . ll 

TABLE OF AuTHORITIES . . . . . . . . . . . . . . . . . . . • • . . . • . . . • v 

OPINIONS BELOW . . . . . • . • . . . . . . . . . . . . . . . . . . . . . . . . • • 1 

JURISDICTION ............. ... ............ .. . : . . . . . . 1 

CoNsTITUTIONAL PRoVISIONS AND STATUTES . . . . • . . . . • . 2 

STATEMENT OF THE CASE • . . . . . • . . . . . . . . . . . . . . . . . • . . 2 

The Genesis of the Challenged Redistricting Plans. 2 

The Plaintiffs' Claim . . . . . . . . . . . . . . . . . . . . . . . . . . 4 

Political Participation and Ele:ctoral Success of 
Blacks in the Challenged Districts . . . . . . . . . . . . 6 

V~oter Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 

SuMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . 14 

ARGUMENT . . . . • . • . • . . . . . . . . • . . . . . . . . . . . . . . . . . . . . . . 15 

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 

I. Section 2 of the Voting Rights Act does not entitle 
protected minorities, in a jurisdiction in which mi­
norities actively participate in the political process 
and in which minority candidates win elections, to 
safe electoral districts simply b~cause a minority 
concentration exists sufficient to create such a dis-
trict ....... , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 

A. History of official discrimination which touched 
the right to vote. . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 



iv 

TABLE OF CoNTENTS continued 
Page 

B. The extent to which voting is racially polarized. 27 

C. The majority vote requirement. . . . . . . . . . . . . . 27 

D. The socio-economic effects of discrimination 
and polit~cal participation. . . . . . . . . . . . . . . . . . . 28 

E. Racial appeals in political campaigns. . . . . . . . . 30 

F. The extent to which blacks have been elected. . . 32 

G. Responsiveness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 

H. Legitimate state policy behind county-based 
representation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 

II. Racially polarized voting is not established as a 
matter of law whenever less than a majority of 
white voters vote for a black candidate. . . . . . . . . . . 35 

·CoNCLUSION ....... . ........................ . ........ 45 



v 

TABLE OF AUTHORITIES 
CASES: Page 

Arlington Heights v. Metropolitan Housing Develop­
ment Corp., 429 U.S. 252 (1977) . . . . . . . . . . . . . . . . 16 

Boykins v. City of Hattiesburg, No. H77-0062(c) (S.D. 
Miss. March 7, 1984), at 8 . . . . . . . . . . . . . . . . . . . . . . 27 

City of Mobile v. Bolden, 446 U.S. 55 (1981) ... ... passim 

Collins v. City of Norfolk, No. 83-526·-N (E.D. Va. July 
19, 1984) .................................... 39, 43 

David v. Garrison, 553 F.2d 923, 927 (5th Cir. 1977) . . 20 

Dove v. Moore, 539 .F.2d 1152, 1154 (8th Cir. 1976) . . . 20 

Hendrix v. Joseph, 559 F.2d 1265 (5th Cir. 1977) . . . . . 25 

Jones v. City of Lubbock, 730 F.2d 233 (5th Cir. 1984) 
(reh'g en bane denied) ..................... 39,42-43 

Lee County Branch of the NAACP v. City of Opelika, 
748 F.2d 1473 (5th Cir. 1973) . . . . . . . . . . . . . .. . . . 43 

Major v. Treen, 574 F.Supp. 325, 65 (E.D. La. 1983) . 25 

McMillan v. Escambia County, Florida, 688 F.2d 960 
(5th Cir. 1982) . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . 40 

NAACP v. Gadsden County School Board, 691 F.2d 
978 (11th Cir. 1982) . .. . . . .. . . . . . . . . . . . . . .. . . . . 40 

Overton v. City of Austin, No. A-84-CA-189 (N.D. Tex. 
March 12, 1985) at 26 ..................... 31, 33, 43 

Rogers v. Lodge, 458 U.S. 613 (1982) .............. 34, 40 

Seamon v. Upham, Civil N·o. P-81-49-CA (E.D. Tex. 
Jan. 30, 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 

Terrazas v. Clements, 537 F.Supp. 514 (N.D. Tex. 
1984) ........................ ; .............. 39, 43 

White v. Regester, 412 U.'S. 755 (1973) ............ passim 

Washington v. Davis, 426 U.S. 229 (1976) ........... 15-16 

Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1974) . 22, 24 



Vl 

TABLE OF AuTHORITIES continued 
Page 

CoNSTITUTIONs: 

United States Constitution, Fifteenth Amndment . 2, 15, 16 

North Carolina Constitution, Art. II, ~ 3(3) . ......... 2, 3 

North Carolina Constitution, Art. II, ~ 5(3) .......... 2, 3 

STATUTES: 

Voting Rights Act of 1965, as amended . . . . . . . . . . . . . . 2 

Section '2 ( 42 USC ~ 1973) . . ......... . .... . . passim 

Section 5 ( 42 USC ~ 1973c) . . . . . . . . . . . . . . . . 2, 3, 4, 11 

28 u.s.c. ~ 1253 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 

MISCELLANEOUS : 

128 Cong. Rec. S. 6920 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 

128 Cong. Rec. S. 6964 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 

128 Cong. Rec. S. 6962 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 



IN THE 

~uprrmr Qtnurt nf tqr l!tuitrb ~tatrn 
OCTOBER TERM, 1985 

, No. 83-1968 

LACY H. THORNBURG, et al., 
Appellants, 

v. 
RALPH GINGLES, et al., 

Appellees. 

On Appeal From the United States District Court 
for the Eastern District of North Carolina 

APPELLANTS' BRIEF 

OPINIONS BELOW 

The opinion of the United States District Court 
for the Eastern District of North Carolina in this 
case was rendered on .January 27, 1984. A copy of 
the Court's Opinion and Order is set out in the .Juris­
dictional Statement at AppendL'\: A. 

JURISDICTION 

The case below was a class action by black voters 
of North Carolina challenging certain districts in the 
post-1980 redistricting of the North Carolina General 
Assembly. The appellants filed their Notice of Appeal 
on February 3, 1984. This Court noted probable juris­
diction on April 29, 1985. The jurisdiction of this 
Court is invoked under 28 U.S.C. § 1253. 



2 

CONSTITUTIONAL PROV1SIONS AND STATUTES 

The United States Constitution, Fifteenth Amend­
ment, and Sections 2 and 5 of the Voting Rights Act 
of 1965, as amended, 42 U.S.C. §§ 1973, 1973c are set 
forth in the Jurisdictional Statement at 59a. The fol­
lowing provisions of the North Carolina Constitution 
are not contained in the Jurisdictional Statement: 

Art. II,§ 3(3), N.C. Const. 

"No county shall be divided in the formation of 
a senate district." 

Art. II,§ 5(3), N.C. Const. 

"No county shall be divided in the formati ::m of 
a representative district." 

STATEMENT OF TilE CASE 

The Genesis of the Challenged Redistricting Plans 

In July of 1981, the North Carolina General As­
sembly enacted a legislative redistricting plan in order 
to conform the State Senate and House of Repre­
sentative Districts to the 1980 census. In keeping with 
a 300 year old practice in the State, the · plans con­
sisted of a combination of single member and multi­
member districts and each district was composed of 
either a single county, or two or more counties, so that 
no county was divided between legislative districts. 
The plaintiffs below filed this action on September 16, 
1981 in the United States District Court for the East­
ern District of North Carolina alleging among other 
things, that the multimember districts diluted black 
voting strength. 

In October 1981, in a special session, the General 
Assembly repealed and reworked the House plan to 



3 

reduce the population deviations. Because forty of 
North Carolina's 100 counties are covered by Section 
5 of the Voting Rights Act, the revised House plan 
and the Senate plan were submitted to the Attorney 
General for review.1 The Attorney General interposed 
objections to both proposals. He found that the state 
policy against dividing counties resulted in the crea­
tion of multi-member districts which in turn tended 
to submerge black voters in the covered conntiAS.2 

1 Section 5 of the Voting Rights Act requires covered jurisdic­
tions to either submit any voting change to the Attorney General 
of the United States or to file suit in the United States District 
Court for the District of Columbia for declaratory judgment. 
Section 5 provides in pertinent part: 

Whenever a [covered] State or political subdivision ... shall 
enact or seek to administer any voting qualification or pre­
requisite to voting, or standard, practice, or procedure with 
respect to voting different from that in force or effect on 
November 1, 1964, such State or subdivision may institute an 
action in the United States District Court for the District of 
Columbia for a declaratory judgment that such qualification, 
prerequisite, standard, practice, or procedure does not. havP. 
the purpose and will not have the effect of denying or abridg­
ing the right to vote on account of race or color, or in contra­
vention of the guarantees set forth in section 4 (f) (2) , and 
unless and until the court enters such judgment no person 
shall be denied the right to vote for failure to comply with 
such qualification, prerequisite, standard, pract ice, or proce­
dure: Provided, That such qualification, prerequisite, standard, 
practice, or procedure has bt>en submitted by the chief legal 
officer or other appropriate official of such State or subdivision 
to the Attorney General and the Attorney General has not 
interposed an objection within sixty days after such submis­
sion . .. 42 U.S.C. § 1973c. 

2 In 1968, as part of a general revision of the State Constitution, 
a provision prohibiting the division of any county bt>tween State 
legislative districts was adopted. Art. II, q 3 ( 3), 5 ( 3) N.C. Con st. 
This Constitutional amendment merely codified a practice which had 
been consistent and unbroken in North Carolina redistr ict ing since 
the institution of legislative districts in the colonial perod. 



4 

During the early months of 1982, counsel for the 
General Assembly worked closely with the Civil Rights 
Division of the Department of Justice in order to 
remedy those aspects of the plans found objectionable 
under Section 5. In February, the General Assembly 
enacted new redistricting plans in which some county 
lines were broken in order to overcome the Attorney 
General's objection in the covered counties of the 
State. When these plans were submitted, the Attorney 
General found one problematic district in each plan. 
These subsequently were redrawn to Justice Depart­
ment specifications. On April 30, 1982, the Senate and 
House plans received Section 5 preclearance. 

The Plaintiffs' Claim 

The action below remained pending during the 
course of these legislative proceedings, and several 
amendments to the complaint were permitted to ac­
commodate the successive r evisions of the redistricting 
plans. ·The last supplemental complaint included, as a 
basis of the plaintiffs' claim of vote dilution, Section 
2 of the Voting Rights Act, as amended on June 29, 
1982. In its final form, the complaint alleged that in 6 
General Assembly districts, the use of multi-member 
configurations diluted the voting strength of black citi­
zens in violation of Amended Section 2. In addition, 
the plaintiffs alleged that a concentration of black 
voters was split between 2 single-member Senate dis­
tricts resulting in vote dilution. The class was certified 
as the class of all black residents of the State,3 and 

3 Although the plaintiffs were cer t ified as the class of all black 
voters in the state, their position was hardly one based on con­
sensus. Four prominent black leaders testified for the State that 



5 

trial to a three-judge court was held for 8 days com­
mencing July 25, 1983. 

The plaintiffs attempted to prove that five multi­
member House districts and 1 multi-member Senate 
district violated Section 2. These districts were: 

House District No. 23- Durham County 
House District No. 36-Mecklenburg County 
Senate District No. 22-Mecklenburg and 

Cabarrus Counties 
House District No. 39-Forsyth County 
House District No. 21- W ake County 
House District No. 8- N ash, Wilson, and 

Edgecomqe Counties 

blacks in the at-large districts had equal access to the process and 
three of them specifically stated that single-member legislative 
districts would hinder .rather than help blacks politically. It be­
came clear during the trial that much of the impetus for the 
challenge to the multi-member districting came from plaintiffs ' 
counsel. Neither the Chairman of the House nor the Senate Re­
apportionment Committee had ever been contacted by the plain­
tiffs during the legislative process regarding the desire for single­
member districts. R. 1065-66, 1975. 

The extent of the artifice constructed by the plaintiffs is dem­
onstrated by the following vignette. Two days before trial, the 
Mecklenburg Black Caucus passed a resolution supporting single­
member districts. R. 1477-78. The r esolution was handwritten by 
a partner in the firm representing the plaintiffs and delivered by 
him to the Caucus Chairman during the Caucus meeting. R. 1489. 
The issue was not on the agenda for the meeting and the members 
had no notice of the vote. R. 1484. The plaintiffs then called the 
Chairman of the Caucus as a witness at trial to introduce the 
resolution to support their contention that the black community 
was in agreement on the issue of single-member districts . 



6 

The plaintiffs also tried to show that Senate district 
2, a single-member district was statutorily infirm be­
cause the district could have been drawn to create a 
59% black majority. As drawn by the legislature and 
approved by the Attorney General, the district's popu­
lation was 55.1% black/ 

Political Participation and Electoral Success 
of Blacks in the Challenged Districts 

The record reflects the following· facts : 

Durham ·county comprised a 3-member House dis­
trict which had a black voting age population of 
33.6%. Stip. 59.5 Durham has had at least one black 
representative to the House continuously since 1973. 
Stip. 148. At the time of trial two of its five county 
commissioners, one of whom is Chairman, were black 
(Stip. 150), as were two of its four elected district 
court judges.6 Stip. 153. The three-member Durham 
County Board of Elections had a black member from 
1970 until 1981, when he was appointed to the State 
Board of Elections. Stip. 154. The chairmanship of 
the Durham County Democratic Party was held by a 
black from 1969 through 1979 and is held by a black 
for the 1983-85 term. Stip. 155. One single-member 

4 In order to draw a black majority Senate district in the North­
east portion of the State, as the U.S. Attorney General had in­
structed, it was necessary to divide many counties. The resulting 
Senate District 2 contains portions of Bertie, Chowan, Gates, Hali­
fax, Northampton, Hertford, Martin and Washington Counties. 

5 The Stipulations of fact are contained in the Pre-trial Order. 
Citations are to the number assigned to the Stipulation. 

6 The facts here recited are from the record and so naturally re­
flect the electoral situation in 1983 at the time of trial. 



7 

House district with a black population of approxi­
mately 70% could be drawn within Durham County. 
Stip. 144. 

In addition, the evidence shows that the Durham 
Committee on the Affairs of Black People is a power­
ful political organization which endorses and supports 
both black and white candidates for election. No can­
didate in Durham can expect to get many black votes 
without the endorsement of the Durham Committee. 
R. 1295. 

The black voting age population of Mecklenburg is 
24%. Stip. 59. One of the eight House members elected 
from Mecklenburg County in 1982 is black. Stip. 116. 
James D. Richardson, who is also black and was run­
ning in his first election for public office in 1982, came 
in ninth in a race for eight seats, with only 250 votes 
less than the eighth successful candidate. Stip_. 116. 
This was in a field of 18 candidates. Pl.Ex. 14(d), 
R. 86, 112.7 While there is currently no black senator 
from the ¥ecklenburg-Cabarrus County Senate Dis­
trict, James Polk, a first time candidate for public 
office, ran fifth in a race for four seats in the 1982 
election. Stip. 118. The Mecklenburg-Ca·barrus County 
Senate District did have a black senator for three 
terms from 1975 through 1980, until his death before 
the 1980 elections. Stip. 117. In addition, it was stipu­
lated at the time of trial that one of the five Meck­
lenburg County Commissioners, Stip. 119, two of the 
nine Charlotte-Mecklenburg Board of Education mem­
bers, Stip. 123, and one of the ten Mecklenburg County 
'District Court judges, Stip. 122, all of whom are black, 

7 Plan tiffs' Exhibits will be identified as Pl. Ex. ; Defendants' 
Exhibits as Def.Ex. 



8 

were elected at-large. In addition, another ·black was 
appointed to a vacant district court judgeship in Meck­
lenburg County. Stip. 123 . 

.At the time of trial a black served as the chair­
person of the three member Mecklenburg County 
Board of Elections. Stip. 125. The Mecklenburg Board 
of Elections also had one black member in the years 
1970 to 1974 and 1977 to the present. Stip. 125. The 
chair of the Mecklenburg County Democratic Execu­
tive committee at the time of trial and his immediate· 
predecessor are also black. Stip. 126. 

The City of Charlotte, ·located in Mecklenburg 
County, has a population which is 31 % black. Stip. 
127. Harvey Gantt, who is black, currently serves as 
Mayor of that city. J.S. 35a. Charlotte also has two 
black city council members elected from majority 
black districts. Stip. 128. 

It was stipulated at the time of trial that if Meck­
lenburg County were subdivided, two single-member 
House districts each with a black population of 65% 
could be constructed. Stip. 110. If the Mecklenburg­
Cabarrus Senate district were dismantled, one single 
member Senate district with a black population of 
65% could be drawn. Stip. 112. 

The five-member House District 39, including most 
of Forsyth County, has a 22% black voting age popu­
lation. Stip. 54. Two black representatives were elected 
in the 1982 elections. Stip. 132. Forsyth County has 
previously elected a black representative for the 1975-
76 and 1977-78 General .Assemblies. Stip. 133. Blacks 
have also been appointed by the Governor on two 
occasions to represent Forsyth County in the North 
Carolina House. This occurred in 1977 when a black 
representative resigned, Stip. 134, and again in 1979 



9 

when a white representative resigned. Stip. 135. At 
the time of trial one of the five Forsyth County Com­
missioners, Stip. 136, and one of the eight Forsyth 
County School Board members were black. Stip. 139. 
Both the County Commission and the School Board 
are elected at-large. In addition, when the case went 
to trial the three-member Forsyth County Board of 
Elections had one black member, and that Board has 
had one black member every year since 1973. Stip. 141. 

The City of Winston-Salem, located in Forsyth 
County, has a black population of slightly more than 
40% and a black voter registration of slightly less 
than 32%. Stip. 142. The Winston-Salem City Council 
has eight members elected from wards. Stip. 143. At 
the time of trial, there were three black members 
elected from majority black wards and one black 
member elected from a ward with slightly less than 
39% black voter registration. Stip. 143. This black 
councilman, Larry Womble, defeated a white Demo­
cratic incumbent in the primary and a white Republi­
can in the general election in 1981. Stip. 143. 

If Forsyth County .were divided into single mem­
ber House districts, one district with a population over 
65% black could be formed. Stip. 129. 

The current Wake County six member House dele­
gation includes one black member, Dan Blue, who, at 
the time of trial, was serving his second term. Stip. 
162. In the 1982 election, Blue received the hi~Shest 
vote total of the 15 Democrats running in the primary, 
Stip 162, and the second highest vote total of the 17 
candidates running for the six seats in the general 
election. Stip. 162. Slightly more than 20% of Wake 
County's voting age population is black. Stip. 59. 



10 

Although no single-member black Senate district can 
be constructed in Wake County, Stip. 160, Wake 
elected a black Senator for the 1975-76 and 1977-78 
terms. Stip. 163. 

In July of 1983, one of the seven Wake County 
Commissioners was black, Stip. 164, as were two of 
the eight Wake County District Court Judges. Stip. 
165. The Sheriff of Wake County, John Baker, is black 
and at the time of trial was serving his second term. 
Stip. 166. In the 1982 election for his second term, 
Baker received 63.5% of the votes in the general elec­
tion over a white opponent. Stip. 166. In the· Demo­
cratic Primary, Baker received over 63% of the vote, 
defeating two white opponents. Stip. 166. Wake Coun­
ty Commissioners, District Court Judges, and the 
Sheriff are all elected at large. Stip. 165, 166. Wake 
County has also had a black member continuously on 
its three-member Board of Elections since 1970, Stip. 
169, and at the time of trial had a black chairman. 
Stip. 169. 

The City of Raleigh in Wake County is 27.4% 
black. Stip. 171. Raleigh had a black mayor from 
1973 to 1975, Stip. 172, and has had one black on 
its seven-member city council since 1973. Stip. 173. 

Although it is not possible to draw a black majority 
single-member Senate district which is wholly within 
or includes substantial parts of Wake County, Stip. 
161, John W. Winters, who is black, was elected Sen­
ator from Wake County for two terms, 1975 through 
1978. Stip. 163. 

If Wake County were subdivided into single-member 
House districts, one district with a population around 
65% black could be created. Stip. 158. 



11 

House District 8 is comprised of three whole coun­
ties: Nash, Wilson and Edgecombe, all of which are 
covered by Section 5 of the Voting Rights Act. Stip. 
174. The Attorney General approved this four-member 
at-large district. Stip. 45. Edgecombe County, which 
has a voting age population which is 46.7% black, 
Stip. 59, has a five-member Board of Commissioners 
elected at-large and when the case went to trial, two 
of its members were black. Stip. 176. 

Senate district 2, a single-member district, is 55.1% 
black. Stip. 190. This district which lies in an area 
covered by Section 5, Stip. 190, was drawn according 
to Justice Department instructions to create a dis­
trict having a population that was 55 % black, regard­
less of how many county lines had to be crossed. 
Stip. 190. Consequently, Senate district 2, as it was 
approved by the Attorney General, Stip. 45, encom­
passes parts of Bertie, Chowan, Halifax, Hertford, 
Martin, N orthhampton and Washington Counties. In 
the 2 election years before trial, black candidates had 
won 3 seats in the State House from areas within the 
borders of Senate district 2. In Gates County where 
49 % of the registered voters are black, a: black is cur­
rently serving a term as Clerk of Court. Stip. 192. 
In Halifax, several blacks have been elected to the 
County Commission and the City Council of Roanoke 
Rapids. It is possible to draw a black district in the 
general area of Senate district 2 which is 59.4% black. 
Stip. 188. 

The plaintiffs' own witnesses were convincing evi­
dence of the openness of the political process in North 
Carolina. Their witnesses included Phyllis Lynch, the 
Chairperson of the Mecklenburg Board of Elections 
and a force in the County Black Caucus. R. 427. Sam 



12 

Reid, as the head of the Vote Task Force in Mecklen­
burg County, is a special Registration Commissioner 
appointed by the Mecklenburg County Board of Elec­
tions to respond to special requests to register citizens 
at civic, community and church gatherings. R. 470. 
Frank Ballance, the representative to the General As­
sembly from House District 7, is also Chairman of 
the Second Congressional District Black Caucus. R. 
592. Larry Little is an alderman in the City of 
Winston-Salem. He is also Chairman of the City's 
Public Works Commission. R. 592. Willie Lovett, 
Chairman of the Durham Committee on the Affairs 
of Black People, R. 646, testified that the "impact 
and responsiveness in the community to the Durham 
Committee and its recommendations and programs is 
rather massive." R. 670. G. K. Butterfield, an attorney, 
organized the Wilson Committee on the Affairs of 
Black People and is also a gubernatorial appointee 
to the State Inmates Grievance Board. R. 695, 719, 
936. Fred Belfield is President of the Nash County 
N.A.A.C.P. R. 737, 754. All of these plaintiffs' wit­
nesses are black. 

Voter Registration 

In October of 1982, the State Board of Eler.tions 
reported the following voter registration statistics for 
the challenged counties: Stip. 58. 

% White V AP* % Black V AP 

Durham 
Forsyth 
Mecklenburg 

• Voting Age Population 

Registered Registered 

66.0 
69.4 
73.0 

52.9 
64.1 
50.8 



13 

% White V AP* % Black V AP 

Wake 
Nash 
Wilson 
Edgecombe 
Bertie 
Chowan 
Gates 
Halifax 
Hartford 
Martin 
N orthhampton 
Washington 

• Voting Age Population 

Registered R egistered 

72.2 
64.2 
64.2 
62.7 
76.6 
74.1 
83.6 
67.3 
68.7 
71.2 
82.1 
75.6 

49.7 
43.0 
48.0 
53.1 
60.0 
54.0 
82.3 
55.3 
58.3 
53.3 
73.9 
67.4 

Although black registration still lags behind white 
registration, the larger gains over the past several 
years have been among the black population. Def.Ex. 
14, R. 505, 510. In the period 1980 to 1982, statewide 
registration among whites dropped by 112,000, while 
among blacks it increased by 12,096-as much as 50% 
in some counties. R. 585. This increase was largely 
due to an effort launched by the State Board of 
Elections in 1980 to increase voter registration in 
general, and in particular among groups traditionally 
underregistered. Since the publication of these regis­
tration figures, the General Assembly has passed leg­
islation to further facilitate voter registration. R. 
1335. Now public libraries offer voter registration 
during library hours. R. 1335-36. In addition, many 
public high schools now have a permanent voting 
registrar. R. 1335-36. The legislation further provides 
that branches of the Department of Motor Vehicles 



14 

offer voter registration so that the opportunity to 
register is available to everyone who comes in to 
renew or replace a driver's license or to conduct any 
other business. R. 1336. 

Despite the great strides made by the State in elimi­
nating any lingering effects of past electoral discrimi­
nation by facilitating and encouraging registration, 
and despite the considerable electoral success achieved 
by blacks in North Carolina, the district court found 
that the challenged districts violated Section 2. The 
court reached this untenable conclusion because it 
never uncovered the core value, the specific right, 
protected by the statute. Section 2 guarantees equal 
opportunity to participate in the political process. 
The court below, however, struck down the challenged 
districts because they did not guarantee electoral 
success.8 

SUMMARY OF THE ARGUMENT 

Section 2 of the Voting Rights Act as amended 
by Congress in 1982 guarantees equal access to the 
political process. The focus of the provision is oppor­
tunity, not guaranteed results. Congress incorporated 
the analysis and specific language of White v. Reg­
ester, 412 U.S. 755 (1973) into the amended statute. 
Thus a violation of Section 2 is established when 
plaintiffs demonstrate that the political processes lead-

8 Apparently the court adopted this conclusion of the plain tiffs' 
expert, Bernard Grofmann : 

My fifth general conclusion is as follows: Even though a con­
stituency has elected a black candidate in the past, this does 
not provide a guarantee that it will do so in the future, espe­
cially if the black incumbent who is the present occupant of 
that position does not run in the future in subsequent races. 



15 

ing to nomination and election are not equally open 
to participation by the racial minority group.' 

The record below shows that blacks in North Caro­
lina enjoy active and meaningful participation in 
politics. This is evidenced by the fact that out of 
11 black candidates who ran for election to the Gen­
eral Assembly in 1982, from the districts challenged 
by the plaintiffs, 7 were elected. 

The district court erred in equating access with· 
guaranteed electoral success. This runs counter to the 
legislative history of Section 2, and the judicial prece­
dents which Congress explicitly invoked. 

The district court found that racial bloc voting 
exists whenever less than 50 percent of the whites 
vote for a black candidate. This is an arbitrary defini­
tion which has no relationship to real politics or 
electoral outcomes. By virtue of this definition the 
court found "severe" racial polarization in elections 
in which the black candidate received 40% of the 
white vote ·and won the election. Racial bloc voting 
has legal significance only when it operates to pre­
vent black candidates from being elected to office. 

ARGUMENT 
Introduction 

On .Tune 29, 1982 Congress enacted amendments 
to the Voting Rights Act of 1965. Foremost among 
the changes adopted was a complete transformation 
of Section 2. Prior to this 1982 amendment, Section 
2 had been viewed as simply the statutory restate­
ment of the Fifteenth Amendment. Oity of 111 obile 
v. Bolden, 446 U.S. 55 (1981). Consistent with this 
Court's rulings in such cases as Washington v. Davis, 



16 

426 U.S. 229 (1976) and Arling.ton Heights v. 111 etro­
politan Housing Development Corp., 429 U.S. 252 
(1977), it was necessary to prove both disparate im­
pact and discriminatory intent in order to establish 
a violation of the Fifteenth Amendment and conse­
quently, of Section 2. This was the holding of the 
plurality of the Court in City of 111 obile, sup'ra. 

Congress amended Section 2 to eliminate the intent 
standard imposed by Mobile. Section 2 (a) as amended 
provides that no voting law shall be imposed or ap­
plied in a manner which results in a denial or abridge­
ment of the right to vote on account of color. Sub­
section (b) in its entirety reads: 

(b) A violation of subsection (a) is established if, 
based on the totality of circumstances, it is 
shown that the political processes leading to 
nomination or election in the state or political 
subdivision are not equally open to participa­
tion by members of a class of citizens pro­
tected by subsection (a) in that its members 
have less opportunity than other members of 
the electorate to participate in the political 
process and to elect representatives of · their 
choice. The extent to which members of a pro­
tected class have been elected to office in the 
state or political subdivision is one ''circum­
stance" which may be considered, provided that 
nothing in this section establishes a right to 
have members of a protected class elected in 
numbers equal to their proportion in the popu­
lation. 42 U.S.C. § 1973. 

The language of Section 2 is clear- the statute is 
intended to afford to minority citizens the opportunity 
to meaningfully participate in the political process. 
It explicitly disavows any guarantee of electoral suc­
cess or proportional representation. 



17 

The legislative history supports a reading of Sec­
tion 2 which focuses on equal access. On October 15, 
1981, the House of Representatives passed H.R. 3112 
which transformed Section 2 into a results test. The 
House version read as follows : 

No voting qualification or prerequisite to voting, 
or standard, practice, or procedure shall be im­
posed or applied by any State or political sub­
division in a manner which results in a denial or 
abridgement of the right of any citizen of the 
United States to vote on account of race or color 
or in contravention of the guarantees set forth 
in Section 4(f) (2). ·The fact that members of a 
minority group have not been elected in numbers 
equal to the group's proportion of the population 
shall not, in and of itself, constitute a violation 
of this section. 

The Senate Judiciary Subcommittee on the Consti­
tution rejected the proposed amendment and recom­
mended the retention of the existing statutory lan­
guage. Report of the Subcommittee on the Constitution 
of the Senate Committee on the Judiciary, 97th Cong., 
2d Sess., Report on S. 1992. Although many members 
of the Senate Judiciary Committee supported the 
House language, there were not enough votes to re­
port the House version to the floor. 128 Cong. Rec. S. 
6920 (daily ed. June 17, 1982) (statement of Sen. 
Hatch). Senator Dole avoided a stalemate by con­
structing a compromise that allowed a majority of the 
Judiciary Committee to agree upon a bill. 128 Cong. 
Rec. S. 6964 (daily ed. June 17, 1982) (statement of 
Sen. Kennedy). 

The Dole compromise, the bill ultimately adopted 
by Congress, incorporates language from the land-



18 

mark vote dilution case, White v. Regester, 412 U.S. 
755 (1973). In White the Court WTote: 

The plaintiff's burden is to produce evidence to 
support findings that the political processes lead­
ing to nomination and election were not equally 
open to participation by the group in question­
that its members had less opportunity than did 
other residents in the district to participate in 
the political processes and to elect legislators of 
their choice. 412 U.S. at 766. 

Senator Dole made it clear that, just as in White v. 
Regester, the touchstone of the new Section 2 would 
be equal access and opportunity. S. Rep. No. 417, 97th 
Cong., 2d Sess. at 193. [hereinafter S. Rep.] On the 
floor of the Senate, in answer to Senator Thurmond's 
question as to whether the focus of the amended stat­
ute would be on election results or equal access to the 
process, Senator Dole responded, "[t]he focus of Sec­
tion 2 is on equal access, as it should be." 128 Cong. 
Rec. S. 6962 (daily ed. June 17, 1982) (statement of 
Sen. Dole). He also explained in his views included 
in the Senate Report that, "[c]itizens of all races are 
entitled to have an equal chance of electing candidates 
of their choice, but if they are fairly afforded that 
opportunity and lose, the law should offer no rem­
edies." S. Rep. at 193. 

The Senate Report echoes the view of Senator Dole 
that the amendment was intended to codify the equal 
access standard of White v. Regester, S. Rep. at 22-24. 
Indeed the Senate Report explicitly states that the 
substitute amendment "codifies the holding in White, 
thus making clear the legislative intent to incorporate 
that precedent and the extensive case law which de­
veloped around it into the application of Section 2." 
S. Rep. at 32. 



19 

The district court erred in failing to apply Section 
2 in a manner consistent with the judicial precedents 
expressly identified by Congress. Although the court 
acknowledged Congress' reliance on White v. Regester, 
it did not seriously attempt to integrate the language 
of Section 2 with the case law which Congress sought 
to codify. Inasmuch as the language of subsection (b) 
came directly from this Court's opinion in White, it 
is obvious that the statute must be construed in light 
of this precedent. Because the district court attempted 
to interpret the amended provision without this essen­
tial judicial background, it reached several erroneous 
conclusions of law. The court's fundamental miscon­
ception was that Section 2 .creates an affirmative en­
tilement to proportional representation. Building on 
this foundation, the court was able to make a finding 
of vote dilution even though it was evident that black 
residents of the challenged districts had the same op­
portunity as whites to participate in the political 
process and to elect candidates of their choice. 

I. Section 2 of the Voting Rights Act does not entitle protected 
minorities, in a jurisdiction in which minorities actively 
participate in the political process and in which minority 
candidates win elections, to safe electoral districts simply 
because a minority concentration exists sufficient to create 
such a district. 

The district court erred in equating a violation of 
Section 2 with the absence of guaranteed proportional 
representation. The Court flatly stated: 

The essence of racial vote dilution in the White 
v. Regester sense is this: that primarily because 
of the interaction of substantial and persistent 
racial polarization in voting patterns with a chal-



20 

lenged electoral mechanism, a racial minority with 
distinctive group interests that are capable of aid 
or amelioration by government is effectively de­
nied the political power to further those interests 
that numbers alone would presumptively give it 
in a voting constituency not racially polarized in 
its voting behavior. (citation omitted) .. J.S. at 14a. 

This statement epitomizes the district court's reading 
of the amended statute. Although blacks had achieved 
considerable success in winning state legislative seats 
in the challenged districts, their failure to consistently 
attain the number of seats that numbers alone would 
presumptively give them, (i.e., in proportion to their 
presence in the population) the court found that Sec­
tion 2 had been violated. All of the vote dilution cases 
following White run counter to this interpretation. 
In David v. Garrison, for example, the Fifth Circuit 
wrote that "dilution occurs when the minority voters 
have no real opportunity to participate in the political 
process." 553 F.2d 923, 927 (5th Cir. 1977). And in 
Dove v. Moore, the Eighth Circuit in discussing vote 
dilution under the pre-Mobile constitutional standard 
now codified in Section 2, stated that the "consti tu­
tional touchstone is whether the system is open to full 
minority participation not whether proportional rep­
resentation is in fact, achieved." 539 F.2cl 1152~ 1154 
(8th Cir. 1976). 

Moreover, the court's understanding of vote dilution 
runs contrary to specific instruction in the legislative 
history. The Senate Report explained that some op­
ponents of the results test had suggested that it would 
enable a plaintiff to win a vote dilution suit by show­
ing an at-large election scheme, underrepresentation 
of minorities, and a mere scintilla of other evidence. 



21 

This is essentially the same standard enunciated by 
the district court, and the Senate Report states that 
"this position is simply wrong." S. Rep. at 33. 

In addition, the court failed to understand the dis­
claimer at the end of subsection (b). The statute states 
that "nothing in this section establishes a right to 
have members of a protected class elected in num­
bers equal to their proportion in the population." 42 
U.S.C. § 1973. The district court interpreted this to 
mean only that lack of proportional representation in 
and of itself does not constitute a violation of Section 
2. J.S. at 15a, n.13. Once again, the Senate Report 
specifically disavows the interpretation adopted by the 
court. The Report states that the House version sim­
ply assured that a failure to achieve proportional 
representation in and of itself would not constitute a 
violation. S. Rep. at n.225. The Senate strengthened 
the House language to make it explicit that the 
amended section creates no affirmative right to pro­
portional representation. S. Rep. at 68. 

Subsection (b) of the amended statute states that 
a finding of discriminatory results should be based on 
the totality of circumstances. The Senate Report elab­
orates on this by supplying a list of factors which the 
Committee suggested might be indicative of vote dilu­
tion. S. Rep. at 28.9 These factors were culled from 

9 The Senate Report criteria are as follows : 

1. the extent of any history of official discrimination in the 
state or political subdivision that touched the right of the 
members of the minority group to register, to vote, or other­
wise to participate in the democratic process; 
2. the extent to which voting in the elections of the state or 
political subdivision is racially polarized; 

footnote continued on next page 



22 

the analytical framework in White and also from 
Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1974), 
a Fifth Circuit case · which followed and applied 
White. 

The proper application of the analysis suggested 
by the Senate Report, and the purpose of Section 2 
generally, are best examined in light of White and 
City of 1lfobile v. Bolden, 446 U.S. 55 (1981). The 
facts of Mobile, the case to which Congr ess adversely 
reacted, and those of White, which set the standard 
that Congress wished to codify, provide the back­
ground necessary t.o apply the amended statute. Com-

3. the extent to which the state or political subdivision has 
used unusually large election districts, majority vote require­
ments, anti-single shot provisions, or other voting practices or 
procedures that may enhance the opportunity for discrimina- . 
tion against the minority group. 
4. if there is a candidate slating process, whether the members 
of the minority group have been denied access to that process ; 
5. the extent to which members of the minority group in the 
state or political subdivision bear the effects of discrimination 
in such areas as education, employment and health , which 
hinder their ability to participate effectively in the political 
process; 
6. whether political campaigns have been characterized by 
overt or subtle racial appeals; 
7. the extent to which members of the minority group have 
been elected to public office in the jurisdiction. 

Additional factors that in some cases have had probative value 
as part of plaintiffs' evidence to establish a violation are : 

whether there is a significant lack of responsiveness on the 
part of elected officials to the particularized needs of the mem­
bers of the minority group. 
whether the policy underlying the state or polit ical subdhri­
sion 's use of such voting qualification, prerequisite to voting, 
or standard, practice or procedure is tenuous. 



23 

parisons of the record in this case with the findings 
of the district courts in White and Mobile make it 
clear that Section 2 was never intended to reach the 
circumstances of the case at bar. 

In White v. Regester the Court upheld the district 
court's order to dismantle multimember districts in 
Dallas and Bexar Counties in Texas. While the White 
Court recognized that multimember districts might be 
used invidiously to minimize the electoral strength of 
racial minorities, it also stressed that to sustain such a 
claim "it is not enough that the racial group allegedly 
discriminated against has not had legislative seats in 
proportion to its voting potential." 412 U.S. at 766. 

The record in White however, showed that the 
counties in which the Plaintiffs challenged the at­
large system had the following characteristics : 1) a 
history of official racial discrimination, which con­
tinued to touch the right of blacks to register, vote 
and to participate; 2) a majority vote requirement 
jn party primaries; 3) a place rule which reduced 
multimember elections to a head-to-head contest for 
each position; 4) only 2 blacks elected to the Texas 
legislature since Reconstruction; 5) a slating system 
which excluded minorities; 6) a white dominated or­
ganization which controlled the Democratic party and 
which did not need or solicit black support; 7) a con­
sistent use of racial campaign appeals by the Demo­
cratic party. The district court concluded and the 
Supreme Court agreed that the net result of these 
factors was to shut racial minorities out of' the elec­
toral process. 

Likewise in Mobile, the plaintiffs attacked the at­
large method of electing the city commissioners, 428 



24 

F.Supp. 384 (S.D. Ala. 1977). The district court, 
applying the test used in Zirwmer v. McKeithen, 485 
F.2d 1297 (5th Cir. 1973), found that the eledoral 
system there was marked by a majority vote require­
ment in both the primary and general elections, num­
bered posts, and no residency requirement. In addi­
tion, in a city whose population was 35.4% black, no 
black person had ever been elected to the Board of 
Commissioners because of acute racial polarization in 
voting. The Court found further that the city officials 
had made no effort to bring blacks into the main­
stream of the social and cultural life by appointing 
them to city boards and committees in anything more 
than token numbers. The plaintiffs ·also marshalled 
evidence of police brutality towards blacks, mock 
lynchings and failure of elected officials to take ac­
tion in matters of vital concern to black people. On 
appeal to the Fifth Circuit, the Court noted that 
the plaintiffs had prevailed on each and every Zimmer 
factor, 571 F.2d 238, 244 (5th Cir. 1978). 

The record in the present case differs dramatically 
from the pictures drawn in White and Mobile. Multi­
member districts in North Carolina simply do not 
operate to exclude blacks from the political process 
as they did in those cases. The degree of success at 
the polls enjoyed by black North Carolinians is suf­
ficient in itself to distinguish this case from White 
and Mobile and to entirely discredit the plaintiffs' 
theory that the present legislative districts deny blacks 
equal access to the political process. 

The court below reviewed the evidence by discuss­
ing essentially the same factors consider ed in White 
and Mobile. Contrary to the court's conclusion, how-



25 

ever, no matter how one weights and weighs the evi­
dence presented, it does not add up to denial of equal 
access to the political forum. 

A. History of official discrimination which touched the 
right to vote. 

The plaintiffs introduced evidence, not refuted by 
the State, that North Carolina had in the past pre­
vented blacks from actively participating in the demo­
cratic· process. Stips. 85-94; R. 224-324. This evidence, 
however, is relevant only if these past impediments 
to political participation have a perceptible impact 
on the ability of blacks to involve them,selves effec­
tively in the democratic processes of North Carolina 
today. See Major v. Treen, 574 F.Supp. 325, 65 (E.D. 
La. 1983). In Hendrix v. Joseph, 559 F.2d 1265 (5th 
Cir. 1977) the court warned that because no area in 
the South was free of past discrimination in voting, 
the present effects of such discrimination must be 
carefully assessed. ''The factual question is,'' the 
court wrote, "whether that discrimination precludes 
effective participation in the electoral system by 
blacks today in such a way that it can be remedied 
by a change in the electoral system." 559 F .2d at 
1270. (emphasis added). 

The record in this case shows that the drive to en­
gage blacks in the electoral process in North Caro­
lina began before the passage of the Voting Rights 
Act in 1965. R. 1178-79, 1306-07. In Mecklenburg 
and Wake Counties, for example, voter registration 
drives aimed particularly at increasing black regis­
tration began before that date. Id. Over the past 
years, the State Board of Elections has redoubled its 



26 

efforts to reach those groups in the State that are 
relatively underregistered, especially blacks. The 
Board of Election's most recent campaign included 
a comprehensive educational program to encourage 
interest in voting, and new legislation designed to 
maximize access to registration. Def.Ex. 1-9, 11-15, 
R. 500-06, 510. At the close of the books prior to the 
1982 General elections, the Board's drive had resulted 
in a 17% increase in registration among blacks. Def. 
Ex. 14, R. 506, 510. By the adjournment of the 1983 
Session, the General Assembly had enacted new legis­
lation providing for more registrars, more registra­
tion locations and generally easier access to registra­
tion. R. 1335. In spite of these facts, the district 
court still counted this factor against the defendants 
because the percentage of eligible blacks registered is 
lower than the percentage of eligible whites registered. 

Although total registration among blacks is still 
lower than among whites, blacks are registering at a 
faster rate today than are whites. It is obvious from 
this statistic alone that no barriers or impediments to 
registration presently exist. In addition, the mere 
fact that in the 7 challenged districts, 7 blacks were 
elected to the General Assembly in 1982 demonstrates 
that there are no lingering effects of past discrimi­
nation.10 

The Senate Report does not purport to cast in stone 
the definitive inflexible list of relevant factors to be 

10 The successful black candidates were Dan Blue (Wake Coun­
ty); Annie Kennedy, C. B. Hauser (Forsyth County); Phil Berry 
(Mecklenburg County) ; Frank Ballance ("Warren County); Ken­
neth Spaulding (Durham County); C. Melvin Creecy (North­
hampton Comity) . 



27 

considered in Section 2 cases. The factors are meant 
to be exemplary of the types of evidence which might 
be relevant, and the relevance of any given item may 
vary from case to case. Boykins v. City of Hatties­
burg, No. H77-0062(c) (S.D. Miss. March 7, 1984), at 8. 
In this instance, this first factor is not particularly 
relevant, largely because the State's effort to over­
come the ~:ffects of past electoral discrimination have 
been so successful. The mere existence of impediments 
to the exercise of the franchise by minorities at some 
time in the past should not "in the manner of original 
sin" continue to be accounted against the State long 
after the barriers have been removed and the residual 
consequences ameliorated. 

B. The extent to which voting is racially polarized. 

Because courts have generally considered this to be 
the pivotal factor in Section 2 analysis, this topic is 
discussed below in detail. Suffice it to say here that 
the court found "severe" racial polarization in every 
election in which less than a majority of whites voted 
for the black candidate-even where the black won 
and white candidates also received less than a ma­
jority of the white vote. 

C. The majority vote requirement. 

North Carolina has a majority vote requirement in 
primary elections only. Stip. 88, 89. The district court 
found that no black had ever lost a bid for election 
to the General Assembly because of the majority vote 
requirement.11 J.S. 30a. Nonetheless, the court also 

11 Because the one-party nature of the state greatly inflates the 
importance of victory in the Democratic primary, there is little 



28 

found that the majority vote requirement contributed 
to the dilution of the black vote. Here again, the 
Court mechanistically counted one of the Senate Re­
port factors against the State without seriously con­
sidering the actual impact on electoral access. If no 
black candidacy has ever been impeded by the ma­
jority vote requirement, it is absurd to consider the 
requirement a circumstance contributing to vote dilu­
tion. 

D. The socio-economic effects of discrimination and 
political participation. 

This criterion from the Senate Report must be read 
fully and in conjunction with its accompanying foot­
note 114. The Report states that a court may examine 
"the extent to which members of the minority group 
in the state or political subdivision bear the effects 
of discrimination in such areas ·as education, employ­
ment. and health, which hinder their ability to par­
ticipate effectively in the political process." S. Rep. 
at 29. (emphasis added). Thus, a plaintiff may prop­
erly introduce evidence, for example, of inferior 
health care, education, and income among black citi­
zens. The relevance of this highly prejudicial evi­
dence, however, is contingent upon proof that the level 
of participation by blacks in the political process is 
depressed. 

support for eliminating the majority vote requirement. In fact, a 
bill introduced in the General Assembly in 1983 by Rep. Spauld­
ing, who is black, would have merely reduced the requirement to 
40 percent. Stip. 90. Interestingly, a study superimposin!5 Rep. 
Spaulding's proposal on all legislative elections back to 1964 shows 
that no additional blacks would have won as a result of this change. 
R. 960-64. 



29 

Note 114 confirms this reading. There, Congress 
expressed its intent that a plaintiff need not prove 
a causal nexus between disparate socio-economic status 
and depressed political activity. However, social and 
economic circumstances have no relevancy at all to 
the issue of vote dilution if participation by the group 
claiming dilution is not in fact depressed. Note 114 
does not relieve the plaintiffs of proving depressed 
political participation, it merely relieves them of prov­
ing the nexus between the two circumstances. 

The court seems to have interpreted this factor and 
. Note 114 . to say that evidence of inferior economic 

and social status is proof of depressed levels of par-
ticipation in the democratic process. The plaintiffs 
did indeed offer evidence that blacks fared less well 
than whites on several socio-economic measures. Stip. 
62-84. A witness offered as an expert in political 
sociology then testified that the lower one's economic 
status the less likely one is to participate in the 
political process. R. 402. 

Nothing in the record, however, supports the find­
ing that participation by blacks in the electoral 
process of North Carolina is depressed. Rather, the 
whole record reflects vigorous participation by blacks 
in every aspect of political activity. First of all, nearly 
every one of the plaintiffs' own witnesses recited a 
series of Democratic party offices, elective offices and 
appointed political positions in which they had served. 
See 11-12 sup1·a. The activities of just this small group 
of people cast some doubts on any claim of either de­
pressed participation or unequal opportunity. Wit­
nesses for the plaintiffs also testified about successful 
volunteer efforts by black leaders and civic groups to 



30 

increase voter registration. R. 463-64, 470. This too is 
hardly reflective of a politically inactive black com­
munity. Furthermore, the power wielded by such 
organizations as the Durham Committee on the Af­
fairs of Black People, R. 670, 1295, the Mecklenburg · 
Black Caucus, R. 453-55, the Raleigh-Wake Citizens 
Association, R. 1333, the Black Women's Political Cau­
cus, R. 1333, and the Wake County Democratic Black 
Caucus, R. 1333-34, evidence a vital and sophisticated 
black organization. Since the plaintiffs failed to prove 
that political participation on the part of blacks in 
North Carolina was depressed or in any way hindered, 
the evidence of disparate economic and social status 
was not particularly relevant to the issue of whether 
the challenged legislative districts dilute black voting 
strength and the court should have rejected this 
evidence. 

E. Racial appeals in political campaigns. 

The court found that from Reconstruction to the 
present racial appeals had been "effectively used by 
persons, either candidates or their supporters, as a 
means · of influencing voters in North Carolina politi­
cal campaigns." J.S. 31a. The court apparently ac­
cepted the opinions of plaintiffs' expert, Paul Luebke, 
on this topic.'2 The Court lists 6 elections in which 
these appeals supposedly were made: 

12 Dr. Luebke's testimony was simply not cr edible . For example, 
Luebke insisted that campaign slogans such as ''Eddie Knox will 
serve all the people of Charlotte," and "Knox can unify this city," 
were racial slurs. R. 345. Most damaging to his credibility, how­
ever, was his adamant refusal to admit that what might be a 
racial appeal in the mind of one person could never be a fair 



31 

1950 Campaign for U.S. Senate 
1954 Campaign for U.S. Senate 
1960 Campaign for Governor 
1968 ·Campaign for President 
1972 Campaign for U.S. Senate 
1984 Campaign for U.S. Senate 

Of these 6 campaigns, 4 of them occurred more than 
15 years ago. One more dates from more than 10 
years ago. Only one of the so-called racial appeals 
cited by the court occurred recently and it did not 
occur in the context of an election to the General 
Assembly in any · one of the challenged districts. Fur­
thermore, the court's findings were based on Dr. 
Luebke's opinions unsupported by any systematic 
analysis or study. The same type of commentary on 
racial appeals by a plaintiff's expert has been dis­
missed by a district court as "pure sophistry." Over­
ton v. City of Austin, No. A-84-CA-189 (N.D. Tex. 
March 12, 1985) at 26. The court in Overton found 
the methodology totally wanting because the expert 
had not interviewed a statistically reliable sample of 
voters to determine if they perceived any racial in­
ferences in the campaign materials labelled "racial 
appeals" by the expert. Id. at 27. Dr. Luebke's re­
search consisted of reading the ads and determining 

political comment in the mind of another. R. 417. 

Dr. Luebke insisted, for example, that the white candidates for 
the Durham County Board of Commissioners made racial appeals 
throughout their campaign in 1980. R. 350-356. Luebke fou:c.d the 
slogan, "Vote for Continued Progress," to be racially offensive. 
R. 353-54. Nonetheless, two of the five seats in that election were 
won by blacks and the 5 Commissioners then elected one of the 
blacks Chairman of the County Board. R. 422-25. 



32 

whether they contained coded or "telegraphed" racial 
messages. He interviewed no one to substantiate his 
conclusions. R. 418-19. 

F. The extent to which blacks have been elected. 

Despite the considerable electoral success of blacks 
in the challenged districts, the court found that" [t]he 
overall results achieved to date at all levels of elective 
o~ce are minimal in relation to the percentage of 
blacks in the population." J.S. at 37a.13 This con­
clusion is simply inapposite to the issue of whether 
blacks enjoy equal political opportunity in the chal­
lenged districts. In the 1982 elections, in the districts 
in question, 11 black candidates offered for election. 
Nine won in the Democratic primaries and seven 
went on to win in the general elections. Three of the 
four candidates who lost were running for public 
office for the first time. The fourth losing candidate, 
Howard Clement, testified that he lost because he did 
not have the endorsement of the Durham Committee 
on the Affairs of Black People, R. 1295, and indeed, 
he received only a small percentage of the black vote. 
The results of the 1982 legislative elections are hardly 
consistent with a finding of "minimal" electoral 
success. 

G. Responsiveness. 

The plaintiffs offered no evidence of unresponsive­
ness but on cross-examination their witnesses con­
ceded that their legislators were responsive to their 

13 From the Court 's recitation of statistics at .J.S. 33a, it is clear 
that this conclusion is based on the percentage of blacks elected 
statewide, not in the challenged districts. 



33 

needs.14 R. 450-53. The defendants showed and the 
court found that the effort to increase black regis­
tration was directly responsive to the needs of the 
black community. J.S. 25a. In addition, the court 
specifically noted that the State has appointed a sig­
nificant number of black citizens to judgeships and 
to influential executive positions in state government. 
J.S. at 47a. Despite the plethora of evidence offered 
by the defendants, the court did not find that legis­
lators generally were responsive or unresponsive: and 
they did not examine the effect of this factor on 
vote dilution. The failure to make such an assessment 
reflects the court's underlying assumption that effec­
tive representation of the minority community de­
mands guaranteed election of minority candidates. 
Apparently, the court interpreted "of their choice" 
to mean "of their race." But there is simply no right, 
constitutional or statutory, to elect representatives of 
one's own race. Seamon v. Upham, Civil No. P-81-
49-CA (E.D. Tex. Jan. 30, 1984). See also Overton 
v. City of Austin, No. A-84-CA-189 (W.D. Tex. March 
12, 1985). Responsiveness is probative of the existence 
of access to the political process because a white repre­
sentative who responds to his black constituency is just 
as effective, vis a vis the black community, as a black 
person. 

14 In the legislative session immediately preceding the trial, the 
General Assembly greatly increased the availability of voter regis · 
tration. R. 1335. In addition, the budget included an allocation 
for sickle cell anemia research, a holiday honoring Dr. Martin 
Luther King was established, and local legislation changing the 
method of election to the Wake County School Board from a dis­
trict to an at-large system was passed at the urgmg of black 
leaders from Wake County. R. 1333-38. 



34 

In its discussion of polarized voting in Rogers v. 
Lodge, 458 U.S. 613 (1982), the Supreme Court noted 
that when a racial majority can win all the seats in 
an at-large election without the support of the mi­
nority, it is possible for those elected to ignore the 
views and needs of the minority with implmity. 458 
U.S. at 616. When this occurs, the members of the 
minority are essentially excluded from the democratic 
process because they have no representative voice. 
It is this very potential to shut blacks out of the 
process without fear of political consequences which 
makes unresponsiveness of elected officials one of the 
indicia of a Section 2 violation. In the present case 
blacks are not excluded from the process by · unre­
sponsive white representatives. White candidates need 
black support to win, and many black political organi­
zations regularly endorse white candidates. R. 454-55, 
464-65, 638, 855, 1234-36. Consequently white office­
holders are held accountable by the black community. 
Under these circumstances, the responsiveness of the 
members of the General Assembly to the black citi­
zenry further evidences the effective participation of 
blacks in the political processes of North Carolina. 

H. Legitimate state policy behind county·hased 
representation. 

The court found that the use of the whole-counties 
as the building blocks of legislative districting was 
"well-established historically, bad legitimate func­
tional purposes, and was in its origins completely 
without racial implications." J.S. at 50a. The court, 
however, found this evidence irrelevant on the grounds 
that the legislature could have contradicted estab­
lished policy to avoid dilution of the black vote. 



35 

The court's analysis completely contorts the pur­
pose for the presence of this factor in the Senate 
Report. Evidence of a consistently applied, long­
standing non-racial policy weighs against a finding 
of vote dilution. As the Senate Report notes, a finding 
on behalf of the State on this factor would not alone 
negate other strong indications of dilution. N onethe­
less, the court's basic finding refutes any suggestion 
that the use of whole counties as the basic unit of 
districting was racially motivated. 

Based on the totality of circumstances, it is difficult 
to comprehend how the court concluded that blacks. 
in North Carolina have less opportunity than whites 
to participate in the political process and to elect 
candidates of their choice. The court's opinion seems 
to turn upon its belief that although the evidence 
proved that blacks could be elected, there vvas no 
guarantee that blacks always would be elected from 
the districts at issue. 

Apparently the court thought that guaranteed ac­
cess required guaranteed victory in as many single­
member "safe" seats as could be drawn. The decision 
removes black voters and candidates from the com­
petitive electoral arena and protects them from the 
vagaries of political fortune. Certainly Section 2 does 
not require this. 

II. Racially polarized voting is not established as a matter 
of law whenever less than a majority of white voters vote 
for a black candidate. 

The district court identified racial bloc voting as 
the "single most powerful factor in causing racial 
vote dilution." J.S. 47a. In light of this emphasis, 



36 

it was essential to apply the proper legal definition 
of racial bloc voting. The court, however, accepted 
the opinion of the plaintiffs' expert that racially 
polarized voting occurs whenever less than 50% of 
the white voters cast a ballot for the black candidate.15 

As a result, the court concluded that there was 
"severe and persistent" racial bloc voting despite 
the following facts: 

a) In the 1982 Mecklenburg House primary, Berry 
who is black received 50% of the white vote and 
Richardson who is also black, received 39%. Berry re­
ceived more votes than any other candidate. R. 189. 
Both black candidates won the primary. R. 188-89; 
Pl.Ex. 14(c), R. 85, 112. 

b) In the 1982 House general election for Meck­
lenberg County, 42% of the white voters voted for 
Berry; 29% of the whites voted for Richardson. Pl. 
Ex. 14(d), R. 86, 112. In a field of 18 candidates 
for 8 seats, 11 white candidates received fewer white 
votes than Berry. I d. In that election B erry finished 
second, and Richardson finished ninth, only 250 votes 
behind the eighth place winner. 

1 5 The plaintiffs' expert, Bernard Grofmann, expressed his defini­
tion of racial polarization in several ways. Basically, he opined that 
racially polarized voting occurs when white voters and black voters 
vote differently from one another . R. 50. Racial polarization is 
substantively significant when the outcome would be different if 
the election were held among only the black voters as compared to 
only the white voters. R. 159. Thus a black candidate who would 
be the choice of the black voters would have to get a majo ri ty of 
the white vote to win in the hypothetical all-white constituency. 
Thus Dr. Grofmann 's definition of substantively significan t racially 
polarized voting can be reduced to this : it occurs whenever less 
than a majority of the white voters vote for the black candidate. 
R. 161. 



37 

c) In the 1982 House general election for Durham 
County, black candidate Spaulding received 47% of 
the white vote and won the election. R. 183-84, Pl.Ex. 
16(e), R. 85, 112. 

d) In the 1982 House primary election for Durham 
County, one black candidate, Clement, received 32% 
of the black vote and 26% of the white vote. R. 181-
82; Pl.Ex. 16(d), R. 86, 112. The black candidate 
Spaulding received 90% of the black vote and 37% 
of the white vote. I d. Of the two black candidates, 
only Spaulding was successful in the primary. I d. 
Had the black voters wanted to elect Clement, they 
could have cast doubleshot votes. R. 184; 

e) In the 1982 'Senate primary election for Meck­
lenburg County, the black candidate, Polk, received 
32% of the white vote and was successful in the 
primary. Pl.Ex. 13 (j), R. 86, .112. 

f) In the 1982 Mecklenburg Senate general elec­
tion, Polk, a black candidate received 33% of the 
white vote. The leading white candidate received 59 % 
of the white vote. Pl.Ex. 13(k), R. 86, 112. 

g) In the 1982 Forsyth House primary, the two 
black candidates, Hauser and Kennedy, received 25% 
and 36%, respectively, of the vote. Pl.Ex. 15 (e) . R. 
86, 112. In a field of 11, Kennedy received more white 
votes than six of those candidates. Pl.Ex. 15 (e), R. 86, 
112. Both black candidates won the primary. I d. 

h) In the 1982 House general election for Forsyth 
County, Hauser and Kennedy received 42 % and 46% 
respectively, of the white vote. R. 175-76; Pl.Ex. 15 
(f), R. 86, 112. The successful white candidates re­
ceived substantially equal support from black and 



38 

white voters-all within a range between 43% and 
63%. Both black candidates were successful. I d. 

i) In the 1982 House primary election for Wake 
County, a six-member district, the only black candi­
date running, Dan Blue, received more total votes 
than any other of the 15 candidates. R. 194-95; Pl.Ex. 
17(d), R. 86, 112. Blue received more white votes 
than 11 of the other candidates. I d. 

j) In the 1982 House general election for Wake 
County, Blue ran second out of a field of 17 cancli­
dates. R; 195, Pl.Ex. 17(e), R. 86, 112. Blue also 
received the second highest number of white votes. 
R. 196 ; Pl. Ex. 17 (e), R. 86, 112. 

k) Although there have been relatively few black 
republican candidates, and they have not been suc­
cessful, these candidates have always received a 
greater number of white votes than black votes. Pl. 
Ex. 16 (f), R. 86, 112. 

1) Finally, of the 11 elected black incumbents who 
have sought reelection to the General Assembly in 
recent years, all 11 have won reelection.16 R. 178. 

The court's conclusion that these facts establish 
polarized voting simply flies in the face of common 
sense. In 1982 legislative elections in Durham, For­
syth, Mecklenburg and Wake Counties, all of the 
black candidates received between 25 and 50% of the 
white vote. Of 8 Black Democratic candidates in these 
counties, 5 were elected. These results do not "ap-

16 The court incorrectly found that " some black in cum bents were 
reelected ... '' J.S. at 40a. Plaintiffs' own expert testified that all 
black incumbents who had offered for reelection had been success­
ful. R. 178. 



39 

proach any realistic legal standard of polarized vot­
ing." Jones v. City of Lubbock, 730 F.2d 233 (5th 
Cir. 1984) ·(reh'g en bane denied). 

In Terrazas v. Clements, 537 F.Supp. 514 (N.D. 
Tex. 1984), for example, the Court found that where 
35% of the whites voted for the minority candidate, 
there was no racial polarization. Similarly, in Collins 
v. City of Norfolk, No. 83-526-N (E.D. Va. July 19, 
1984), the district court determined that in 3 elections 
where 32, 31 and 26% respectively, of the whites had 
voted for a black candidate, there was no legally 
significant racial polarization, Collins at 25. 

The definition of racial bloc voting adopted by the 
court suffers from both conceptual and methodological 
deficiencies. Whatever merits Dr. Grofmann's defini­
tion may have as a theoretical construct it has very 
little to offer to an analysis of a real political contest 
where the objective of any candidate, regardles's of 
race, is to win. Grofmann considers racial polariza­
tion "substantively significant" when less than 50% 
of the white voters vote for the black candidate. R. 
81. In terms of political reality, this is a \<vholly arbi­
trary distinction. Racially polarized voting is signifi­
cant ("politically," "substantively," "statistically," 
or otherwise) when the black candidate does not re­
ceive enough white support to win the election. 

A candidate is primarily concerned with receiv­
ing more votes than his opponents, not with the color 
of the person who votes for him. Discrete and dif­
ferent voting patterns among racial groups concern 
the candidate when they operate to prevent him from 
winning. This political reality lies at the root of Con­
gress' inclusion of polarized voting in Section 2 



40 

analyses. The mere presence of different voting pat­
terns in the white and black electorate does not prove 
anything one way or the other about vote dilution. 
What is probative of vote dilution is voting along 
racial lines which shuts the minority group out of 
the process by consistently defeating the candidate 
of its choice. Rogers v. Lodge) 458 U.S. 613, 616 
(1982). In Rogers) this Court described polarization 
in terms of its capacity to effect actual election 
outcomes: 

Voting along racial li~es allows those elected to 
ignore black interests vvithout fear of political 
consequences and withoi1t bloc voting the mi­
nority candidates would not lose elections solely 
because of their race. 102 S.Ct. at 3731. 

In NAACP v. Gadsden County School Board) 691 
F.2d 978 (11th Cir. 1982), the court quoted the lan­
guage from Rogers as a guide to gaging polarized 
voting in Gadsden County elections. The court found 
that black candidates had lost elections solely because 
of their race. In a county in which blacks comprised 
48.5% of the registered voters and in which 14 blacks 
had run for office since 1972, only 1 black had been 
elected. Voting by whites along racial lines had pre­
vented blacks from winning elections. 

Similarly, in McMillan v. Escambia County) Flor­
ida) 688 F.2d 960 (5th Cir. 1982) no black had ever 
served on the County Commission elected at-large. 
The Court of Appeals noted that "it is sensible in 
this case at is was in Lodge to expect that at least 
some blacks would be elected absent racial polarized 
voting." 688 F.2d 960, 966 at n.14. Here again, the 
court viewed racial bloc voting as probative of the 



41 

Issue of vote dilution insofar as it excluded blacks 
from winning elections, and this is its proper legal 
application. Nothing in the record in this case indi­
cates that racial bloc voting has prevented black can­
didates from obtaining elective office. 

The methodology upon which Dr. Grofmann based 
his analysis is severely flawed. He analyzed 53 elec­
tions using both extreme case analysis and the eco­
logical regression model. In extreme case analysis, 
those precincts which are nearly all white or all black 
are examined. For instance if a precinct is 95% white, 
and a black candidate receives 50% of the votes in 
that precinct, one can surmise that approximately 
50% of the whites voted for the black candidate. 
This method has limited applicability because of the 
small number of homogeneous precincts. Regression 
analysis uses a computer program to compare the 
proportion of the vote received by black and white 
candidates in each precinct with the proportion of 
black and white voters in each precinct. 

One fundamental problem with regression analyses 
is what is called the "ecological fallacy,"-the use of 
aggregate data to explain individual behavior. Dr. 
Grofmann did not use turn out figures, but rather 
compared the registered voters' by race with the elec­
tion returns for each precinct. This fallaciously as­
sumes that the turnout on any given election day, 
whether it be 10% or 90% of the voters, exactly 
mirrors the racial make-up of the voter rolls for that 
precinct. 

The more critical problem is that both extreme case 
analysis and regression analysis show nothing more 
than raw correspondence between the percentage of 
votes for the black candidate and the percentage of 



42 

blacks living in a particular precinct. If there is a 
correlation between these two variables which has sta­
tistical significance, then the analyst concludes that race 
is determining election outcomes. R. 219. But unless 
the expert has tested variables other than race, he can­
not know that race correlates better than, or even as 
well as, party affiliation, age, religion, income incum­
bency, education, campaign expenditures, or any other 
factor that could have influenced the election. R. 1387-
89. 

Regression analysis, as used by Dr. Grofmann and 
accepted by the court, increasingly has come under 
attack because it fails to account for the influence of 
variables other than race. The model systemically in­
fers, by correlating only two variables-race of the 
candidate and racial composition of a precinct-that 
race is the only explanation for the correspondence 
between the variables.17 As Judge Higginbotham noted 
in his concurrence in Jones v. Lubbock, "it ignores 

17 See McClefkey v. Zant, 580 F.Supp. 338 (N.D. Ga. 1984), in 
which the district court provides an exhaustive critique of the 
regression model. "[T] he regression equation can produce endless 
series of self-fulfilling prophecies because it always attempts to 
explain actual outcomes based on whatever variables it is given." 
ld. at 370. 

Dr. Grofmann virtually admitted this when he explained why 
he considered no other factors in his analysis: '' [R] acial polariza­
tion as I have defined it deals with the voting patterns of white 
voters versus the voting patterns of black voters. Therefore, I look 
at the voting patterns of white voters versus the voting patterns 
of black voters to determine racial polarization." R. 177. 

Grofmann also testified that race was the cause of the differences 
in voting patterns. He stated: '' [W] hen black voters consistently 
rank black candidates one and two in their preference ordering 
and white voters consistently rank black candidates at the bottom 

. . in a soci~ty which has a history of racial discrimination and 



43 

the reality that race . . . may mask a host of other 
explanatory variables." 730 F.2d 233 (5th Cir. 1984) 
(reh'g. en bane denied.) 

In Lee County Branch of the NAACP v. City of 
Opelika, 748 F.2d 1473 (5th Cir. 1973) the Fifth 
Circuit panel agreed that a court should not place 
too much reliance on regression analysis in ruling on 
the issue of racially polarized voting. The court un­
derscored the importance of a multiple variable anal­
ysis to establish the true role of race in determining 
election outcomes. Likewise, in Terrazas v. Clements, 
581 F.Supp. 1329 (N.D. Tex. 1984) the district court 
rejected the analysis of the · plaintiffs' expert because 
he failed to measure the impact of more than one 
variable. See also, Overton v. City of Austin, No. 
A~84-CA-189 (W.D. Tex. March 12, 1985) (district 
court adopted the opinion of Judge Higginbotham 
and rejected plaintiff's conclusions based on regres­
sion); Collins v. City of Norfolk, Civil No. 83-526-N 
(E.D. Va. July 19, 1984) (court rejected plaintiff's 
analysis because it did not consider "factors other 
than race which may greatly influence voting be­
havior.") at 21. 

The district court inadvertently makes a case 
against the conclusions drawn by Dr. Grofmann. 
At the outset the court states that vote dilution oc­
curs when racial bloc voting interacts with an elec­
toral mechanism, such as at-large elections, to deny 
proportional representation to a racial minority group 
which has "distinctive group interests." J.S. at 14a. 

in which there is clear racial polarization, ... the most plausible 
explanation is that race is determining the elections." R. 219. 

This is tantamount to saying, there is racial polarization because 
there is racial polarization. 



44 

It is reasonable for people to vote for candidates who 
represent their interests. And if the political and gov­
ernmental interests of any group are truly distinctive, 
alignment of interests might explain differences in 
voting patterns more cogently than race. Regression 
analyses as employed by Dr. Grofmann simply cannot 
account for non-racial factors. In fact, it cannot even 
establish whether any factor is more important than 
race in determining election outcomes. 

Although the legislative history of amended Section 
2 does not discuss racial bloc voting in detail, it does 
give some indication that Congress was concerned 
with polarization in voting that effectively locks the 
racial minority out of the political forum. The Sub­
committee on the Constitution criticized the results 
test on the grounds that it assumed that race was 
the "predominant determinant" of voting preferences. 
Subcommittee Rep. at 41-44. The Subcommittee noted, 
that contrary to this assumption, in many jurisdic­
tions racial bloc voting is not monolithic and indeed 
black candidates enjoy substantial white support. I d. 
The Senate Judiciary Committee responded to this 
criticism by emphasizing that, in those communities 
where black candidates do receive substantial white 
support, "it would be exceedingly difficult for plain­
tiffs to show that they were effectively excluded from 
fair access to the political process." S. Rep. at 33. 

In explaining the reach of the results test, the 
House Report stated, that " [ i] t would be illegal for 
an at-large election scheme for a particular state or 
local body to permit a bloc voting majority over a 
substantial period of time consistently to defeat minor­
ity candidates." H. Rep. at 30. The facts in this case 
do not even approach the situation contemplated by 
the House Report. 



45 

The plaintiffs in this case have not demonstrated 
that bloc voting by whites has deprived them of politi­
cal access or electoral success. Black candidates for 
the General Assembly in 1982 received substantial 
white support, in many instances more than 40% of 
the white vote. The record shows that between 1970 
and 1982, 27 Black democrats ran in general elections 
for the General Assembly. Of these, 18 won. R. 147; 
Pl.Ex. 19, R. 112, 115. Two-thirds of all black candi­
dates have been successful. This is hardly consistent 
with voting patterns which shut minorities out of the 
process. 

The district court emphasized that "the demon­
strable unwillingness of substantial numbers of the 
racial majority" to vote for black candidates is the 
"linchpin" of vote dilution. J.S. at 14-15a. The court, 
however, accepted the theoretical construct of plain­
tiffs' expert witness and failed to see the simple truth: 
a substantial number of whites do vote for black 
candidates; or the more compelling truth: the num­
ber of whites willing to vote for black candidates 1s 
so substantial, that black candidates win. 

CONCLUSION 

For the reasons stated herein, the decision of the 
United States District Court below should be re­
versed. 



46 

Respectfully submitted, 

LACY H. THORNBURG 
Attorney General 

*JERRIS LEONARD 

KATHLEEN HEENAN McGu.AN 

LEONARD & McGuAN, P.C. 
900 17th Street, N.W., Suite 1020 
Washington, D.C. 20006 
(202) 872-1095 

J .AMES W .ALL.ACE, JR. 
Deputy Attorney General for Legal Affairs 

TIARE B. SMILEY 

NORMA s. HARRELL 
Assistant Attorneys General 

Attorney General's Office 
N.C. Department of Justice 
Post Office Box 629 
Raleigh, North Carolina 27602 
Telephone: (919) 733-3377 

Attorneys for Appellants 

*Counsel of Record 






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