Annotated Partial Draft of Brief Section III

    III. C. THE DISTRICT COURTIS ULTII4ATE TINDING THAT THE USE OF
MULTIMEMBER DISTRICTS HAS A DISCRIMINATORY RESULT IS
NOT CLEARLY ERRONEOUS.

The District Courtrs ultimate finding of fact is that the

creation of each of the multimember districts in question

"results in the black registered voters of that district being

submerged as a voting minority in the district and thereby

having less opportunity than do other members of the electorate

to participate in the political process and to elect

representatives of their choice." JS App. 52a. This finding,

and a parallel finding for Senate District *2, are supported by

the following subsidiary findings of fact:

A. The Extent of Any ttistory of Official Discrimi-natj-on That
Touched the Right to Register or Vote.

The current disparity in black and white voter registration

is a legacy of the denial and chilling by the State of

registration by black citizens. The use, inter alia, of a

literacy test until I970 had the intended effect of diminishing

minority voting strength. The racial animosities and resistence

vrith which white citizens have responded to attempts of black

citizens to participate effectively in the political process are

still evident today. JS App. 22a-26a.

B. The ExtenL-to Which Voting is Racially Polarj-zed.

Within each challenged district racially polarized voting is

persistent, severe, and statistically significant. JS App.

38a-39c, 46a. To have any chance of electing candidates of

their choice, black voters must rely on single-shot voting,

thereby

1



forfeiting their right to vote for a full slate of candidates.

JS App. 41a. 
ai

C. The Use of t,he MSority Vote Requirement

North Carolina has a majority vote requj-rement which

operates as a general, ongoing impediment to any cohesive voting

minority's opportunity to elect candidates of its choice in any

contested primary. JS App. 29a-30a.

D. Effects of Racial Discrimination in Employment, Education
and Health

The lower socio-economic status of blacks results from this

long history of discrimination, gives rj-se to special group

interests, and currently hinders the grouprs ability to

participate effectively in the political process. JS. App.

26a-29a.

E. Use of Racial Appeals in Political Campaigns

From the reconstruction era to the present time, appeals to

racial prejudice against black citizens have been used

effectively as a means of influencing voters in North Carolina's
political campaigns. As recently as 1983, political campaj-gn

materials used in North Carolina reveal an unmistakable

i.ntention to exploit white votersr existing racial fears and

prejudices and to create new fears and prejudices. JS App.

3la- 32a .

F. Extent of Election to Public Office

The overall extent of election of blacks to public office at

all levels of government is minimal, and black candidates

continue to be at a disadvantage. With regard to the General

AssembIy, black candidate shave been significantly Iess

2-



successful than whites. JS App. 32a-38a.

G. Tenuousness of the Underlying State Policy

The policy of dividing counties to resolve some problems but

not others does not justify use of multimember districts which

results in racial Vote dilution. JS App. -49a-50.

The policies behind the creation of Senate District #2 were

to protect the incumbent and to have the lowest permissible size

of black population which would survive Section 5 preclearance.

These do not outweight a racial dilution result. JS App.

5 0a-5la .

The ultimate findings of fact, and the subsidiary findings

of fact are amply supported by evidence in the record concerning

each of the districts in questi-on.

I insert fact statements here ]

Despite the record repeat with facts in support of the

District Courtrs finding, appellants now challenge each of these

subsidiary findings. I

A. History of Official Discrimj-nation which Touched the Right
to Vote.

Appellants contend that the evidence of past intentional

disfranchisement is irrelevant because appellees did not Prove

the present effects of their past discrimination. The record

amply shows the lingering fears of registration caused by the

use of the literacy test until 1970, T. 

-, 

the lack of pool

lrt is noteworthy that the Solicitor General does not A1
challenge any of these findings except the finding of the extent \ -of racially polarized votin$, nor did appellants in their X,judicial statement . \

3-



of experienced elected of f icials, T _, and the current large

gap in the percent of the black and white voting age population

that is registered to vote.

In addition, appellants ignore the consistent holdings of

vote dilution case law, uPon which Congress relied in amending

n2, that the burden is on the defendant to show that the

vestiges of this documentation have been overcome. White v.

Reqester, 4L2 US at 766; Kj-rksev v. Board of Supervisors, *P53,
at 146; Zimmer v. McKeithen, supra at 1305.

Appellants asserted that the efforts of the State, beginning

in I98f, to increase black voter registration, shows that there

are no lingering effects of past discrimination. This ignores

the testimony of appellants' own witness that the gap between

black and white voter registration remained unacceptably large,

T. 576,1357, and the voter registration data that at the time

of trial there was, for example, great than a 22t gap between

the percent of eligible whites and eligible blacks who are

registered to vote in Wake and lr(ecklenburg Counties, and a t3t

gap statewide. JS App. a n. 22.

The District court examined appellants's evidence of recent

efforts to increase black voter registration along with the

voter registration statistics. If found:

This good faith effort by the currently responsible
state agency, directly, reversing official state
policies which persisted for more than seventy years
into this century, is demonstrably now producing some
of its intended results. If continued on a substained
basis over a sufficient period, the effort might
succeed in removing the disparity in registration which
survives as a legacy of the long period of direct
denial and chilling by the state registration of black
citizens. But at the present time, the gap has not

4-



the

e. q.

B.

been closed, and there is of course no guarantee that
the effort will be continued past the end of the
present state administration. JS App. at 

-.
ttris finding is not clearly erroneous and is consistent with

findings of other courts under si-milar circumstances. See,

Jones v. City of Lubbock, 727 F.zd' at 385.2

Racially Polarized Voting The District Court's Findings
with Regard to Racially Polarized Voting.

C. The Majority Vote Requirement
Appellants' myopicly assert that unless the majority vote

requirement has caused black candidates to be defeated in bids

for a Iegislative seat, it poses no impediment to the ability of

black citizens to participate in the political Process.

Unrefuted evidence in the record shows that the majority vote

requirement prevents black citizens from being elected to

statewide, congressional, and local leveI positions. (f.

958-959, 967, DX 48, p. 20) These defeats are disincentives to

running for potential minority candidates, denying assistance of

experienced officials to minority citizens attempting to get

started in politics, prevent the creatj-on of a pool of officials

at loyrer Ievels with campaign organizations, experience, and

credibility to enable them to successfully run for higher

2Appe1lants also argue that the fact that "in the seven
challenged districts, seven blacks were elected to the General
Assembly in 1982" shows that the District Courtrs finding of
lingering effects was clearly erroneous. This argument is
deceptive since two of the candidates listed were elected in
majority black House Districts created in response to "5
objections (BaIlance and Creecy) Stip #95. Furthermore, this is
simply a restatement of appellantsr erroneous argument that some
post-Iitigation electoral success necessarj-ly defeats a claim

, supra.under n2. See pp _ -

J-



of

D.

fices. (t. 142, Lgz, 437, 950, 967).3

Effects of Discrimination in Employment, Education and
Health

Appellants agree that the overwhekning evidence of severe

current socio-economic depression of black citizens which

results from post and current discri-mination has no relevance

because there is no evidence of depressed participation in the

political process.

Appellants point only to the activities of appelleesr 8

black witnesses and to the existence of some unofficial black

political organizations in suggestion that the Court's finding

that the lower soci.o-economic status of blacks hinders the

group's ability to participate effectively in the political

process.4 Appellants conceed that the disputed testimony hlas

that lower economic status causes lower ability to participate

in the political process. NC Brf'29. Appellants ignore

evidence that, for example, the lack of access to vehicles makes

it difficult for blacks to get to the polls to vote, the lack of

3On1y nine southern states currently have a majority vote
requirement, T. 970, and North Carolina has steadfastly refused
to eliminate or modj-fy its requirement. Stip. 90.

4uot only is eight of the I,00O,OO0 plus black citizens of
the state trivial, but also the only two of the eight who are
slated officials were elected by majority black electorates
(Little and Ballance), and four held no official position,
elected or appointed, (Moody, Reid, Butterfield, and Belfield).
Rather these four have participated in volunteer organizations
trying to secure equal access to the political process for
blacks. Appellants seem to think that any thing other than
total proclusion is equal access. The goal of black
organizations is to achieve access does not, of course, suggest
that that goal has been achi-eved.

6-



financial resources of blacks makes them contri-bute lower

amounts to electoral candidates, the use of at large elections

increase the expense of running, the inferj-or education of the

great bulk of the black electorate because they attended

segregated schools, and the difficult of black citizens in

gaining exposure to the white electorate caused by residential

and social segregation. T.

The District Court correctly recognized that "ineguality of ,*rn
access is an inference which flows from the existence of ta^access is an inference which fl0ws from the exrstence of --- 

-q:
economicandeducatj.onaIinequitieS.''JSat-,N.23,\
quoting Kuksev v. Board of Supervisors, 554 F.2d at .I45.
Appellants miscite the legislative history in this regard which

specifically statesr "ID]isproportionate educational employment,

income Ievel and living conditions arising from post

dj-scrimination tend to depress minority political

participation..." s. Rep. at 29, n. I14. See also

The District Court also found the inference to be accurate

based on the evidence in thj-s case. OS App. a, N. 23. This

finding is not clearly erroneous.

E. Racial Appeals in Political Campaj-gns

' Asserting that the testimony of the political socologist who

testified for plaintiffs was not credible [Nc erf 30, n. L2)

appellants attach the District Court's finding that "If]rom the

Reconstruction era and the present time, appeals to racial

prejudice against black citizens have been effecEively used by

persons, either candidates or there supporters, as a means of

influencing voters in North Carolina political campaigns. " JS

7-



App. 31a. This, of course, ignores the clear mandate

52 (a ) that spec j-al def erence is to be paid to credj-bi

determination made by the trier of fact. Anderson v.

of Rule

Iity

Bessemer

Cit\r, us _ (3/L9/85 ) (stip. op at 9 ).

Appellants then note that of the six examples listed in the

District Court's f indings of campaj-gn materials "unrnistakably

appealing to the same racial fears and prejudices..."- four where

older than fifteen years old. Appellants ignore the next

paragraph of. the flndings

Numerous other examples of assertedly more subtle
forms of "telegraphed" racial appeals in a great number
of loca1 and statewide elections, abound in the record.
Laying aside the more attenuated forms of arguably
racial allusions in some of these r w€ find that racial
appeals in North Carolina political campaigns have for
the past thirty years been widespread and persistent.

JS App. 32a.

Thus, the District Courtts finding was not based on those

campaign advertisetnents which were subtle racial appeals in the

context of the particular campaign, but on such recent examples

as the L982 Congressional election in Durham, WiLson, Edgecomb

and Nash and other counties in which the white candidate warned

whj-te voters that his black opponent would be "bussing" Isic]
his "block [sic] vote" to the polls, PX 52, the use of racial

appeals in the race for Lt. Governor in L976, T.p 330-337, and

the use of racial appeas in the 1980 election for the United

States Senate in which, for example, now Senator John East rar

advertisements showing incumbent Senator Robert llorgan with

8-



former UN Ambassador Andtew Young. T. 355-358.5

While appellants may not find Dr. Luelbe to have been

"credible" the District Court's findinE that,

"The contents of these materials reveal an
unmistakable intention by their disseminators to
exploit exj-sting fears and prejudices and to create new
fears and prejudices on the part of white citi-zens in
regard to black citizens and to black citizens'
participation in the political processes of the state, "
JS App. 32a, is amply supported by the record and is
not clearly erroneous.

F. The Extent to which Blacks have been Elected.

Appellantsr assert that the District Court's-. finding that
black electoral success has been minimal, JS App 37a, must be

based only on statewide statics, not on the challenged

districts. NC Brf 32, n 13. Appellants ignore the pages of

findings specifically concerning the challenged districts which

come between the district Courts findings concerning the low

level of black electoral success statewide and the finding of

minimal electora] success. JS App. 34a-35a. Appellants'

argument concerni-ng this finding is essential a repeat of their
argument that the only fort which is important is the extent of

electoral success in open post litigatj-on election year , L982.

5 Because of the appellants' cite to Overton v. Ugtin, No.
A-84-cA-r89 (H. D. Tex 1985) is inoppositm, in
that case the Court found no use of overt racial appeals in the
last ten years and no elections in twenty years that had implied
or subminial racial appeals. Plaintiffs had offered testimony
about racial appeal only in connection with on referendum and
the District court found that it lacked any appeal to racist
senti-ment. Id. at 27-28. The fact that that District court
judge rejected the evidence presented as not credible does not
suggest that the findings of the three judge panel herej.n, based
on their acceptance of evidence containing numerous examples of
racial appeals, was clearly erroneous.

v

9-



Not only is this argument erroneous aS a matter of law, See Pp

- _, supra, but also it, ignores the finding of the three

judges with whj.ch heard the evidence that "there were enough

obviously aberational aspects present in the most recent

elections" to make the beginning of a trend of black electoral

success "sheer speculaLion". JS App 37a.6 the findi.ng that the

results from that one election year do not "compel ":
arguably...support an ultimate finding that a black candidate's

race is no longer a significant adverse fact in the polit.ical

prowness of the state either generally or specifically in the

areas of challenged districts" is not clearly erroneous.

G. Responsiveness

while not conceding that the legislature is responsive to

the needs of the state's black communities, appellees made no

attempt to offer evidence of the unresponsiveness of their

elected officials. This Court recognized in Rosers v. Lodge,

458 US 613, __ n. 9 is not an essentj-a1 factor in establi.shing

a claim of. intenti-ona1 vote d,ilution under the Fourteenth

Amendment. Similarly, the Congressional intent is clear.

"Unresponsiveness is not an essential part of plaintiff's case.

Zimmer; White (as to Dallas,)" S. Rep. 29, n. 116. See also

Iinsert cites from other cases re unresponsiveness]

Consequently, the District Court's failure to make a finding

5rt is noteworthy that two of the black candidates who
appellants point out won in 1982 ran from majority black
districts created in response to the Attorney General's
objections pursuant to "5.

10



about whether or not there is responsiveness does not Suggest

that its ultimate finding of black citizens unequal ability to

participate in the political process and elect candidate of

their choice is clearly erroneous. T

H. Teniousness of the State Policy for l"lultimember Districts

The District Court correctly recognized the while departure

from established state policy is probative of a violation of n2,

a consi-stently applied race neutral policy does not _negate
plaintiff's showing, through other factors, that the challenged

practice has a discriminatory result. JS App. 49a, citing S.

Rep at 29, n. 117.

Despite that, the District Court did not find the

application of a consistent, race-neutral state policy. In

fact, after the Attorney General objected under o5, to

prohibition against dividing counties, both counties covered by

o5 and counties not covered by -5, were divided. Since the

policy was to divide counties under some circumstances, it was

not particularly compiling to refuse to divide them to avoid

TappeIlants' recounting of the "pleathora of evidence" of
responsiveness is disengenious. NC Brf at 33. The only
testimony cited to support their assertion that appellantsl
"witnesses conceded that their legislators were responsiv€", NC
Brf. 32, was the testimony of one witness who testified that of
twelve Representatives and Senators from Mecklenburg County, the
black representative and one whj-te representative were
responsive. T. 450-453. The only "plethora" of evidence was
the self serving testimony of one white legislator a1I of which
is listed in footnote I4 to appellantsr brief. Furthermore,
appellants assertion that white representatives must be
responsive because "white candj-dates need black support to win"
NC Brf at 34, is not supported by the record. In the challenged
districts, white candidates receiving votes from between 2Z and
I4t of black voters won. See p.

1I

, infra.



submergence and dilution of minority voting strength which was

known to and discussed by he legislature at the time the

redistricting was enacted. JS App. 49a-50a.

This discussion is even more compelling as to Senate

District *2, since in that instance the legislature did divide

counties and had a plan available to it with a district with a

higher black percentage which divided few counties. The

District Court found that the operative policies these were to
protect incumbants and to create a district with the lowest

possible black population that the Justice Department would

preclear under o5. JS 50a-51a.

Appellants assert that because the policy of keeping

counties whole was not found to be racially motivated, it

negates a finding of a violation of n2. NC Brf at 35. This

thinly veiled attempt to reinsert a intent test into "2 ignores

the clear Congressional intent in passing the Voting Rights

Amendments of L982. See pp _ - , supra.

The three North Carolina judges who heard the evidence

considered and weighed each of the facts to which appellants

point. Based on the tality of relevant circumstances, they

concluded that in each of the challenged districts, black

citizens have less opportunity than white citizens to

participate in the politicai process and to elect candidates of

their choice. None of the underlying subsidiary findings of

fact are clearly erroneous, nor are the ultimate findings.

L2