Appellants' Reply Brief

    IN THE 

~upreme ~ourt of tbe iflniteb ~tateg 
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' REPLY BRIEF 

LACY H. THORNBURG 

Attorney General 

JERRIS LEONARD 

Counsel of Record 

KATHLEEN HEENAN 

McGuAN 

LEONARD & McGuAN, P.C. 
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 
(919) 733-7218 

Counsel for Appellants 

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (203) 347-8203 

1( :f, 





TABLE OF CONTENTS 
Page 

TABLE OF AUTHORITIES .... . ... .. .. . .. ... ... . ... . .. . . . .... .. .. . .. . . 11 

ARGUMENT .•• ...... . ..•..•... .. . . . . . . . . ..• . ..... . ... . ... . . .•.. . .• .. . . . .. . . 
I. Proof of the "Senate Factors" does not con-

stitute proof of a violation of Section 2 . .. .. .... . 2 
II. The Election of Minority Candidates Is a Rec­

ognized Indicator of Access to the Political 
Process ............. ....... .... ....... .. ... ... .... ..... .. ....... .. .. . 7 

III. Racially Polarized Voting Has Legal Significance 
When It Operates Consistently to Defeat Black 
Candidates Because of Their Race . . . . . . . . . . . . . . . . . . . 12 

CONCLUSION .. ....•................ . ..... . ..... . ...•..... • :. . ..... . .. ... . . 16 



ii 

TABLE OF AUTHORITIES 
CASES: Page 
Anderson v. City of Bessmer City, 105 S.Ct. 1504 

(1985) ... .... .. ... .. .......... .... .......... .... .. ... .. ... ......... . 7 
Bose Corp. v. Consumer's Union of United States, 

Inc., 104 S.Ct. 1949 (1984) ....... .. .. ..... ........ .. .. 7 
Collins v. City of Norfolk, 768 F .2d 572 (4th Cir. 

1985) ... .... ... ..... .... ........ ..... .. ..... ... ............ ..... .... 5 
Cross v. Baxter, 604 F .2d 875 (5th Cir. 1979) ..... 13 
Dunston v. Scott, 336 F.Supp. 206 

(E .D.N.C. 1972) ........................ ..... ....... ......... . 6 
Jones v. City of Lubbock, 730 F .2d 233 

(5th Cir. 1984) ................................ .. .... .. .... .... 13 
Jordan v. Winter, No. GC-82-80-WK-0 (N.D. Miss. 

April 16, 1985) ...... ... .. ...... ........ .... .. .. ...... .. ....... 13 
Kirksey v. Board of Supervisors of Hinds County, 

554 F .2d 139 (5th Cir. 1977) ..... ............ .. ...... 10 
Lee County Branch NAACP v. City of Opelika, 7 48 

F .2d 1473 (11th Cir. 1984) .. .......... .. .. .. .. ......... 13 
McCleskey v. Zant, 580 F .Supp. 338 (N.D. Ga. 1984), 

aff'd., 753 F .2d 877 (5th Cir. 1985) .......... ..... 14 
Mississippi Republican Executive Committee v. 

Brooks, 105 S.Ct. 415 (1985) .... ......... ......... ... 3, 4 
Political Civil Voters Organization v. City of Terrell, 

565 F .Supp. 338 (N.D. Tex. 1983) ...... .. .... .. ... 13 
Pullman-Standard v. Swint, 456 U.S. 273 (1982) 7 
Terrazas v. Clements, 581 F .Supp. 1329 (N.D. Tex. 

1984) ..... ........ ......... ... ... ........ ... ... ............. .. .. .... 13 
United States v. Board of Supervisors of Forrest 

County, 571 F .2d 951 (5th Cir. 1978) ............ 10 
United States v. Maren[lO County Commission, 731 

F .2d 1546 (11th C1r. 1984) ... .... ................ .... . 10, 13 
Velasquez v. City of Abilene, 725 F .2d 1017 (5th Cir. 

1984) .. .. .... .. .............................. .......... .. ......... .. 11 
Wallace v. House, 515 F .2d 619 (5th Cir. 1975) .. . 11 



Ill 

Table of Authorities Continued 
Page 

White v. Regester, 412 U.S. 755 (1973) ................. 5, 11 
Zimmer v. McKeithen, 485 F .2d 1297, (5th Cir. 1973) 

affd sub nom, East Carroll Parish School Board 
v. Marshall, 424 U.S. 636 (1976) ................... 10 





IN THE 

~upreme QCourt of tbe Wniteb ~tate~ 
OCTOBER TERM, 1985 

No. 83-1968 

LACY H. THORNBURG, et al., 
Appellants, 

v. 

RALPH GINGLES, et al., 

On Appeal From The United States 
District Court For The Eastern 

District Of North Carolina 

APPELLANTS' REPLY BRIEF 

The Appellees, in support of the opinion of the district 
court, have advocated an interpretation of amended 
Section 2 of the Voting Rights Act which is divorced 
completely from the statutory language and, in large 
part, from the legislative history as well. The Ap­
pellees' most fundamental error is their assumption 
that proof of the "Senate factors" constitutes proof 
of a Section 2 violation. Even under this erroneous 
interpretation of the statute, in order to · rationalize 

Appellees. 



2 

the decision of the district court, the appellees must 
labor to explain away the electoral success of blacks 
in all the challenged districts in 1982, obscure their 
significant success prior to 1982, and champion a def­
inition of racially polarized voting that would condemn 
the voting behavior in virtually every jurisdiction in 
this country in local, state and national elections. 

I. Proof of the "Senate factors" does not 
constitute proof of a violation of Section 2 

Subsection (a) of amended Section 2 states that, 
" [n]o voting . .. practice shall be imposed or applied 
. . . in a manner which results in a denial or abridge­
ment of the right . . . to vote on account of race or 
color . . . " 42 U.S.C. § 1973(a). In Subsection (b), 
Congress specifies that the right to vote has been 
abridged or denied when racial minorities "have less 
opportunity than other members of the electorate to 
participate in the political process and to elect rep­
resentatives of their choice." 42 U.S.C. § 1973(b). 
Thus the ultimate issue in a Section 2 case is does 
the challenged practice (e.g., use of multi-member dis­
tricts) result in unequal electoral opportunity that can 
be remedied by eliminating the practice. 

The Appellees and the district court, however, read 
subsection (b) in a vacuum and thereby eliminated the 
obvious statutory requirement that there be a causal 
relationship between the challenged practice and the 
alleged inequality of electoral opportunity. This dis­
association of subsection (b) from subsection (a) makes 
it possible for the Appellees to proceed with their 
basic proposition that proof of the existence of the 
Senate factors conclusively establishes that blacks 
have less opportunity than whites to participate in 
the political forum and determine election outcomes. 



3 

This basic conception of Section 2 is embodied in the 
Appellees' statement that the Senate Report "speci­
fied a number of factors the presence of which, Con­
gress believed, would have the effect of denying equal 
opportunity to black voters." Appellees' Brief at 16 
[hereinafter App. Br.] See also, App.Br. 32, App.Br. 
44, App.Br. 101. Congress did not outlaw the items 
listed on pages 28-29 of the Senate Report nor did 
it devise Section 2 as a punishment for those juris­
dictions in which those factors existed. The issue is 
not whether these Senate factors exist or even 
whether they have a discriminatory effect. They are 
not elements of a statutory criminal offense or a com­
mon law tort where proof of the elements establishes 
liability. The Senate Report specifically states that 
"[i]f as a result of the challenged practice" plaintiffs 
do not enjoy equal electoral opportunity, then there 
is a violation of the statute. S.Rep. No. 417, 97th 
Cong., 2d Sess. at 28 [hereinafter S.Rep.] 

Reliance on evidence such as substandard housing 
and infant mortality diverts the district court's at­
tention from the real issue. In his dissent from this 
Court's summary affirmance in Mississippi Republi­
can Executive Committee v. Brooks, 105 S.Ct. 416 
(1985), Justice Rehnquist noted that even where the 
lower court correctly found that the Senate factors 
were present, it could be a total non sequitur to con­
clude that past discrimination and its present effects 
'"resulted' in 'dilution' of minority voting strength 
through the adoption of the redistricting plan in ques­
tion." 105 S.Ct. at 423 (emphasis in original). Justice 
Rehnquist further wrote: 

To the extent that less blacks vote due to past 
discrimination, that in itself diminishes minority 



4 

voting strength. But this occurs regardless of any 
particular state voting practice or procedure .... 
It is obvious that no plan adopted by the Mis­
sissippi Legislature or the District Court could 
possibly have mitigated or subtracted one jot or 
tittle from these findings of past discrimination. 
105 S.Ct. at 423. 

In the present case, the record shows that in 1982 
the challenged multi-member structures elected a total 
of five black legislatorso 1 Two black candidates, both 
running for public office for the first time in 1982, 
came very close to winning, demonstrating the po­
tential for blacks to win more than a proportionate 
number of seats. 2 The single member districts ordered 
by the court, on the other hand, guarantee the elec­
tion of six blacks from these districts and virtually 
assure that no more than seven blacks will be elected. 
These statistics demonstrate that not only were the 
court's findings on the Senate factors largely irrele­
vant to the question of equal access, but also that 
the multi-member districts could not have been the 
cause of whatever inequality of opportunity the court 
thought existed. 

It is undisputed, for example, that the median in­
come of blacks in the challenged districts is lower 
than that of whites. This problem, however, is en­
demic to the entire United States and nothing in the 
record demonstrates a relationship between this eco-

1Forsyth County: 2 black representatives; Durham County: 1; 
Wake County: 1; Mecklenburg County: 1. 

2Mecklenburg County: Jim Richardson finished ninth in a race 
for 8 seats, 250 votes behind the 8th place winner; Mecklenburg­
Cabarrus Senate District: James Polk ran 5th in a race for 4 
seats. 



5 

nomic disparity and multi-member districts. The elim­
ination of at-large elections will not as Justice 
Rehnquist aptly wrote "subtract one jot or tittle" 
from this socio-economic situation. See also, Collins 
v. City of Norfolk, 768 F .2d 572, 575 (4th Cir. 1985). 

The Senate factor analysis advocated by the Ap­
pellees sheds little light on the ultimate issue of 
whether the multi-member districts result in unequal 
electoral opportunity. Most of the factors are simply 
too remote in time to reveal anything about the po­
litical process today. Indeed, the factor analysis tends 
to count against the state 9 times one single fact: in 
the past nearly every jurisdiction in the nation dis­
criminated, to some extent, against its black citizens. 
Using this analysis, any electoral practice challenged 
in any Southern jurisdiction would be found in vio­
lation of section 2. Indeed, the single member districts 
ordered as a remedy by the district court could be 
successfully attacked today on precisely the same re­
cord amassed below. In such a case the theory un­
doubtedly would be that, based on the totality of 
circumstances (i.e., the Senate factors) single member 
districts restrict the influence of black voters and limit 
their potential to elect more than their proportional 
share of legislators. Using the analysis advocated by 
the Appellees the court would be compelled to find 
a violation of Section 2. 

The Appellees' analysis is further flawed by their 
assumption that multi-member districts are at least 
presumptively violative of Section 2. See App.Br. at 
2, 3, 20, 25. It is axiomatic that multi-member dis­
tricts are not per se illegal. White v. Regester, 412 
U.S. 755, 765 (1973); S.Rep. at 33. Moreover, the 
appellees contend that single shot voting is inherently 



6 

dilutive of black voting strength. App.Br. 59. This 
argument loses much of its force in light of Congress' 
position expressed in the Senate Report that prohi­
bitions against single shot voting are indicative of 
vote dilution. See S.Rep. 29. The Appellees, however, 
want the Court to count against the State both the 
fact that blacks could not single shot in all elections 
15 years ago, and the fact that they can today.3 Nei­
ther blacks nor any other racial or political minority 
group are compelled to cast single shot votes in the 
challenged multi-member districts. All citizens are free 
to vote for a full slate, for one candidate or for some 
number in between. The votes of black citizens are 
not diluted simply they chose on the basis of race to 
concentrate their votes on one candidate. Nothing in 
the record supports the Appellees' inference that 
blacks must single shot in order to elect legislators 
responsive to their needs. On the contrary, black po­
litical organizations regularly endorse white demo­
cratic candidates because they represent the interests 
of the black community. R.454-55, 464-65, 638, 855, 
1234-36. 

If single shot voting is inherently dilutive, the Ap­
pellees have gained nothing by virtue of their victory 
below. Under the court-ordered plan, blacks in Dur­
ham, Forsyth, Mecklenburg, and Wake Counties are 

3North Carolina enacted an anti-single shot voting law for local 
elections in specified counties and municipalities in 1955. It was 
enforced until it was declared unconstitutional in 1972 in Dun­
ston v. Scott, 336 F .Supp. 206 (E.D.N.C. 1972). It has not been 
enforced since 1972. At least since 1915, North Carolina has 
not had an anti-single shot provision for nomination or election 
of candidates for the North Carolina General Assembly. Stip. 
91. 



7 

segregated into single member districts where they 
have no choice but to cast one vote and affect one 
election outcome. 

Finally, the Appellees' interpretation of Section 2 
leads to their contention that a finding of a violation 
of the statute is a factual conclusion subject to Rule 
52. App.Br. 16. Appellees rely on Anderson v. City 
of Bessemer City, 105 S.Ct 1504 (1985), to support 
their position. Anderson, however, reiterates the basic 
holding of Pullman-Standard v. Swint, 456 U.S. 273 
(1982) that a district court's finding of discriminatory 
intent is a factual finding subject to Rule 52. If Sec­
tion 2 required no more than proof of the Senate 
factors, then arguably a finding of dilution might be 
subject to Rule 52. The ultimate issue in this case, 
however, is whether multi-member districts result in 
less opportunity for blacks than whites to participate 
in the political process and to elect candidates of their 
choice. This is a mixed question of law and fact which 
requires the court to reach a conclusion by applying 
a rule of law to a particular set of facts. This Court 
has held in a variety of situations that such a deter­
mination is legal, not factual. See Bose Corp v. Con­
sumers Union of United States, Inc., 104 S.Ct. 1949 
(1984). Thus the "clearly erroneous" standard under 
Rule 52 does not apply to the case at bar. 

II. The Election of Minority Candidates Is a 
Recognized Indicator of Access to the Political 
Process. 

The Appellees contend that the election of " some" 
minority candidates does not conclusively establish the 
existence of equal political opportunity. They proffer 
this argument in order to discount the significance of 
the results of the 1982 elections. In 1982, Durham 



8 

County, a 3 member district, which has a black voting 
age population of 33.6o/o, elected 1 black represent­
ative. Forsyth County, a 5 member district, which 
has a black voting age population of 22o/o elected 2 
black representatives. Mecklenburg County, an 8 
member district with a black voting age population 
of 25o/o elected 1 black representative and a second 
black candidate finished 9th, 250 votes behind the 8th 
place winner. In Wake County where the black voting 
age population is 20o/o, 1 black representative was 
elected to a 6 member delegation. In the Mecklen­
burg-Cabarrus Senate District a black candidate run­
ning for his first public office, finished 5th in a race 
for 4 seats. Obviously, proportional representation or 
better in 3 districts and near proportionality in the 
other 2 districts in question is significantly more than 
the "some" or "token" success described by the Ap­
pellees. 

The Appellees insist that the language of Section 
2 supports their theory that the 1982 elections do not 
count. The portion of subsection (b) on which the 
Appellees rely states as follows: 

The extent to which members of a protected 
class have been elected to office in the State or 
political subdivision is one circumstance 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 population. 

This was included in the Dole compromise as a 
substitute for language in the House version which 
stated that "[t]he fact that members of a minority 
group have not been elected in numbers equal to the 



9 

group's proportion of the population shall not, in and 
of itself, constitute a violation of this section." H.R. 
Rep. 97-227 97th Cong., 1st Sess. 48 (1981). The 
House language gave rise to a great deal of concern 
in the Senate that the lack of proportional represen­
tation plus a mere scintilla of other evidence would 
be sufficient to establish a violation. See, e.g. 1 Senate 
Hearings 516 (statement of Sen. Hatch); id. at 1438 
(testimony of Prof. Irving Younger). Senator Dole ex­
plicitly stated that the purpose of this compromise 
language was to ensure that the statute would not 
be construed to establish a right to proportional rep­
resentation and that underrepresentation woUld not 
tend to establish a violation where the totality of 
circumstances demonstrated equal access. S.Rep. 194 
(statement of Sen. Dole).4 

The Appellees incorrectly assume that the language 
of the disclaimer is symmetrical. They reason that if 
lack of proportional representation does not establish 
unequal access to the process, then achievement of 
proportional representation does not establish equal 
access to the process. The Senate Report, however, 
directly states: 

While the presence of minority elected officials 
is a recognized indicator of access to the process, 
the "results" cases make clear that the mere 

4"The language 'Of the subsection explicitly rejects as did White 
and its progeny, the notion that members of a protected class 
have a right to be elected in numbers equal to their proportion 
of the population. The extent to which members of a protected 
class have been elected under the challenged practice or struc­
ture is just one factor, among the totality of circumstances to 
be considered, and is not dispositive." S.Rep. 194. 



10 

combination of an at-large election and lack of 
proportional representation is not enough to in­
validate that election method. S.Rep. 16 (empha­
sis added) 

The Appellees further rely on Zimmer v. Mc­
Keithen, 485 F.2d 1297 (5th Cir. 1973) because, the 
Appellees claim, "in that case the court ruled for the 
plaintiffs despite the fact that blacks had won two­
thirds of the se~ts in the most recent at-large elec­
tion." App.Br. 55 This statement badly misrepresents 
the facts of the case upon which they rely. In Zimmer, 
the plaintiffs challenged the at-large election of a 9 
member school board in East Carroll Parish where 
blacks constituted 59o/o of the population. The district 
court held for the parish. Subsequent to issuance of 
the district colirt' s opinion blacks won 2 of 3 school 
board seats up for election in 1972 under the stag­
gered term at-large system. The Court of Appeals on 
rehearing en bane reversed the decision declining to 
consider the 1972 election results because they were 
not part of the record. The Zimmer Court did not, 
as Appellees claim, rule for the plaintiffs despite black 
electoral success. The electoral success of blacks in 
East Carroll Parish was not dispositive because it was 
not part of the record. 

Likewise, all the other cases cited by the Appellees 
fail to support their claim that electoral success of 
blacks is not dispositive of the issue of equal access. 
In United States v. Marengo County Commission, 731 
F.2d 1546 (11th Cir. 1984) 1 black had been elected 
to county office in the history of the county. In nei­
ther Kirksey v. Board of Supervisors of Hinds County , 
554 F. 2d 139 (5th Cir. 1977) nor United States v. 
Board of Supervisors of Forrest County, 571 F .2d 951 



11 

(5th Cir. 1978) had any blacks been elected to county 
office since the formation of the county. In Cross v. 
Baxter, 605 F.2d 875 (5th Cir. 1979) 1 black had been 
elected to the Moultrie City Council, but he was de­
feated in his bid for reelection. In Wallace v. House, 
515 F.2d 619 (5th Cir. 1975) there had been 1 black 
alderman in the town's history, but he was elected 
in 1968 when a popular white candidate withdrew 
from the election too late to have his name removed 
from the ballot. His name diverted so many white 
votes that a black won by a "stroke of luck." 515 
F.2d 622. Finally, in Velasquez v. City of Abilene, 725 
F.2d 1017 (5th Cir. 1984) the only 3 minority can­
didates to be successful were slated and controlled by 
the white slating organization. None of these situa­
tions is comparable to the facts of the present case 
where blacks have been consistenly successful over a 
period of time and have achieved proportional rep­
resentation in 3 of 5 challenged districts. 

The Appellees further attempt to belittle the suc­
cess of black candidates by comparing the statewide 
black population percentage with the racial composi­
tion of the entire General Assembly. App.Br. 2, 70, 
n. 7 4. This statistic is absolutely irrelevant to the 
present lawsuit. The Appellees challenged specific dis­
tricts-they did not attack the statewide apportion­
ment. Five districts are presently at issue: the House 
districts in Durham, Forsyth, Mecklenburg and Wake 
Counties and the Mecklenburg-Cabarrus Senate dis­
trict. The appropriate comparison is on a district by 
district basis. White v. Register, 412 U.S. 755 (1973) 
(vote dilution cases require an "intensely local ap-



12 

praisal.") The Appellees' statement that a 10o/o of the 
Legislature is black while 22o/o of the statewide pop­
ulation is black, might have some plausible relevance 
in an action challenging the legislative districts state­
wide. It has none here. 

Contrary to the Appellees' representations, the 1982 
election was not such a dramatic turn around that 
one might conclude that the results were an aber­
ration. 5 Black candidates in the districts in question 
have enjoyed considerable success since the early 
1970s. See Stips. 114-173. In Durham County, which 
is one third black, for example, one black has been 
elected to its three member delegation in every elec­
tion since 1973. 

Over the past 10 years blacks have consistently 
achieved substantial electoral success in the chal­
lenged districts. The Appellants do not rely on a one­
time victory by a "stroke of luck" to demonstrate 
equal electoral opportunity. Rather, the record shows 
that over the long run, the process turns out fair 
results. · 

III. Racially polarized voting has legal significance 
when it operates consistently to defeat black 
candidates because of their race. 

The Appellees contend that racially polarized voting 
occurs whenever blacks as a group vote differently 

5The court "concluded" neither that the results of the 1982 
election were an aberration, nor that the pendency of this liti­
gation worked an advantage for blacks. The Appellees state 
several times in their brief that whites voted for blacks in 1982 
only to defeat this lawsuit. (See App.Br. at 9, 17). They can cite 
nothing in the record to support this statement. They refer 
instead to the footnote in the district court's opinion in which 
the court merely observed that the inferences made on this topic 
were inconclusive. See J .A. 39, n. 27. 



13 

than whites as a group. App.Br. 72 Using this stand­
ard, every election in this country, including presi­
dential elections, would qualify as racially polarized. 
The Senate Report, however, without actually defin­
ing polarized voting, states that it has significance in 
a Section 2 case when "race is the predominant de­
terminant of politcal preference." S.Rep. at 33.6 Ap­
pellees' regression analysis failed to prove that race 
is the predominant or even a dominant determinant 
of political preference. 

The bivariate regression analysis advocated by the 
Appellees' expert and accepted by the court, does not 
prove that race is determining election outcomes. 7 A 

6See also, Terrazas v. Clements, 581 F.Supp. 1329, 1352 (N.D. 
Tex. 1984) ("ethnicity of the candidate or the electorate deter­
mines the outcome of political events"); Jordan v. Winter, No. 
GC82-80-WK-O (N.D. Miss. April 16, 1984) (majority of voters 
choose their preferred candidates on the basis of race); Cross 
v. Baxter, 604 F.2d 875, 800 n.8 (5th Cir. 1979) (where "race 
plays . . . . part in voters' choices"); Political Civil Voters Or­
ganization v. City of Terrell, 565 F.Supp. 338, 348 (N.D. Tex. 
1983) ("Racially polarized voting occurs when race is a predom­
inant factor and influence in voter choice"); (Jones v. City of 
Lubbock, 730 F .2d 233, 234 (5th Cir. 1984) ("The inquiry is 
whether race or ethnicity was such a determinant of voting 
preference"); U.S. v. Marengo Co. Comm., supra, 731 F .2d at 
1567 ("race is the main issue in Marengo Co. politics"); Lee 
County Branch NAACP v. City of Opelika, 748 F.2d 1473, 1482 
(11th Cir. 1984) (quoting from Jones v. City of Lubbock, supra 
at 234). 

7 Appellees argue that the Appellants did not contest the ad­
equacy of their expert's methodology in the district court. This 
is simply incorrect. The Appellants' expert testified that al­
though bivariate regression analysis was commonly used in vote 
dilution cases, it was inadequate because it failed to control for 
all the other obvious variables such as age, incumbency, and 



14 

regression analysis is a device which measures rela­
tionships: it provides quantitative estimates of the ef­
fects of different factors on a variable of interest. 
See 80 Col.L.Rev. 702 (1989). However, the regression 
analysis retains the properties associated with it only 
if one has in fact included all the variables likely to 
have an effect on the d-ependent variable. Id at 704. 
In other words, the regression model must mirror 
reality. In Dr. Grofman's model all candidates are 
fungible but for the distinguishing characteristic of 
race. In reality, however, candidates differ on the 
issues, they live in different neighborhoods, they be­
long to different political parties, espouse a variety 
of religious beliefs, and have vastly different educa­
tional backgrounds. If these variables were in fact 
determining, to some extent, election outcomes, the 
introduction of them into the regression model could 
significantly reduce the value of the correlation coef­
ficients derived for race. See, McCleskey v. Zant, 580 
F.Supp. 338, 362 (N.D. Ga. 1984),aff'd, 753 F .2d 877 
(5th Cir. 1985). Moreover, the Appellees' argument 
that a multivariate regression analysis requires vote 
dilution plaintiffs to prove the intent of the voters 
cannot withstand even cursory examination. Multi­
variate analysis measures precisely the same thing as 
a bivariate regression: the relationship, in this in­
stance, between election outcomes and a given vari­
able. It does not purport to discover motives. It 
merely ensures that the relationships predicted by the 
model will have a certain validity because the model 
is based on reality. 

placement on the ballot. R. 1387-89. In addition, the Appellees' 
expert was cross-examined on his failure to test for any other 
variable but race. R. 177. 



15 

According to the Appellees the district court found 
polarized voting when "a substantial enough number 
of white citizens do not vote for black candidates, so 
that the polarization operates, under the election 
method in question, to diminish the opportunity of 
black citizens to elect candidates of their choice." 
App.Br. 72. Even if the court had developed such a 
standard, which it did not, it would not support a 
finding of polarized voting in this case. In the 1982 
elections the most recent and therefore most reliable 
indicator of current voting trends, blacks enjoyed a 
higher success rate than whites. In Forsyth County, . 
for example, 11 candidates ran in the democratic pri­
mary: 9 whites and 2 blacks. Of these, 5 were suc­
cessful: 3 whites and 2 blacks. See Pl. Ex. 15(e), R.85, 
112. In the general election, 8 candidates ran for the 
5 seats: 6 whites and 2 blacks. See Pl. Ex. 15(£), R.86, 
112. Of these 3 whites and 2 blacks were successful. 
Id. Thus in the democratic primary whites had a 33o/o 
success rate while blacks had a 100o/o success rate. 
In the general election, the whites had a success rate 
of 50o/o while that for blacks was again 100o/o. Sim­
ilarly in Wake County 5 of 14 whites were successful 
in the democratic primary while the only black can­
didate also prevailed. See Pl. Ex. 17(d) R. 85, 112. 
In the general election, where 5 out of 10 whites lost, 
the 1 black candidate won. See Pl. Ex. 17(e), R. 86, 
112. In Durham and Mecklenburg Counties as well, 
blacks have as good or better rates of success than 
white candidates. See Pl. Ex. 14c, R. 85, 112; Pl. Ex. 
14(d), R. 86, 112; Pl. Ex. 16(e), R. 85, 112; Pl. Ex. 
16(d), R. 86, 112. It is obvious that black voters in 
the challenged districts do not, as a result of polarized 
voting, have less opportunity than whites to elect can­
didates of their choice. 



16 

CONCLUSION 
For the reason stated herein and in Appellants' Brief, 
the decision of the United States District Court below 
should be reversed. 

Respectfully submitted, 

LACY H. THORNBURG 
Attorney General 

JERRIS LEONARD 
Counsel of Record 

KATHLEEN HEENAN McGUAN 
LEONARD & McGUAN, P.C. 
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 
(919) 733-7218 

Attorneys for Appellants 






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