Brief for the United States as Amicus Curiae Supporting Appellants

    {fr
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li

No. 83-1958

IN TEE SUPREME COURT OF IHE T'NITED STATES

ocToBER TERM, 1985

LACY H. TEORNBURG, ET AL., APPELLANTS

v.

RALPH GINGLESI ET AL'

ON APPEAL FROI{ THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA

BRIET' FOR THE UNITED STATES
AS A^I{ICUS CURIAE SUPPORTING APPELLANTS

CIIARLES FRIED
Actinq Solicitor General

WM. BRADFORD REYNOLDS
AssisEant Attorney General

CHARLES J. COOPER
Deputy Assistant AEtornev Gengral

PAUL J. LARKIN, JR.
Assistant to the Solicitor General

DeoartmenE of Juscice
g,Iashinqton, D.C. 20530
(2021 633-22t7



QUESTIONS PRESENTED

1. Whether the districE courE correctly construed amended Sec-

tion 2 of the Voting Rights Act of 1965, 42 rJ.S.C. L973, as invalidat-

ing certain multi-member legislative districts in which minorit,y can-

didates had a proven opportunity to participate in the elctoral pro-

cessr o1 the ground that there was no guarantee thaE minorities would

enjoy the cont,inued electoral success guaranteed by "safe" districts.
2. Whether racial bloc voting exists as a matter of Iaw whenever

less that 5Ot of t,he whit,e voters cast balloEs for a minority candi-

date.

(r)



IN THE SUPREME COURT OF'THE UNITED STATES

OCTOBER TERM, 1985

No. 83-I958

LACY Ii. THORNBURG, ET AL., APPELLANTS

v.

RALPI{ GINGLES, ET AL.

ON APPEAL FROM THE
FOR THE EASTERN

UNITED S?ATES DISTRICT COURT
DISTRICT OF NORTH CAROLINA

BRIEF' FOR TtiE UNITED STATES
AS N,TICUS CURTAE SUPPORTING APPELLANTS

INTEREST OF THE UNITED STATES

On October l, f984, the Court entered'an order inviting the

Solicitor General to express the views of the United States in this

case. We responded in a brief urging summary aEfirmance on two ques-

tions and plenary review on two others, and the Court noted probable

jurisdiction on the latEer two questions on April 29, 1985.

This case presents several questions concerning the Proper con-

struction of the Lg82 amendment Eo Section 2 of the Voting Rights Act

of 1955, 42 U.S.C. f973. The United States has the primary responsi-

bility for enforcing the Voting Rights Act and thus has a substantial

interesE in ensuring that the Act is construed in a manner that ad-

vances, rather than impedes, its objectives.

STATEMENT

I. In JuIy 198I, as a result of the 1980 census, North Carolina

enacted redistricting plans for the state's l{ouse of Representatives

and Senate. In September 1981, appeJ-lees filed this suii, alleging

Ehat Ehe plans had been enacted pursuant to provisions of che North



'/ /L/ / -2

Carolina constitution Ehat required, but had not receivedr pr€c1ear-

ance pursuant to Section 5 of the Voting Rights AcE of L965, 42 U.S.C.

(L976 ed. ) I973c, and that the use of large multi-member districts

submerged concentrations of black voters and diluted minority voting

strength in violation of the Constitution and Section 2 oE Ehe Voting
/

Rights Act of f 965, 42 U.s.c. (L976 ed. ) 1973 (J.S. App. 3a-4a).-
/

After Ehe plans $rere ultimately adopted by the state legislature,-'

appellees amended their pleadings to challenge five [Iouse Districts

(Nos.8, 2L,23,35 and 39) and two Senate Districts (Nos. 2 and 22)

and to conform their pleadings to the newly-amended Section 2 of the
/

Voting Rights Act.-' The "gravamen" of appellees' claim with

reference to these multimember districts was that the State's plan

"makes use of multi-member districts with substantial white voting

majorities in some areas of the staEe in which there are sufficient

concentrations of black voters to form majority black single-member

districts * * *rr (J.S. App. 4a). The plan was in this respect claimed

to violate amended Section 2 of the Voting Rights Act.

2. The case was tried before a three-judge court on Ehe basis of

extensive stipulaEions of fact, documentary evidence, and oral testi-

mony (J.S. App. 8a). The court entered an order and opinion contain-

ing extensive findings on the various facto-rs identified in the legis-

lative history of amended Section 2 and case law as relevant to a vote

dilution claim. J.S. App. 2la-51a. The court held that "it has now

become possible for black citizens to be elected to all levels oE

state government, i.n North CaroIina" (id. at 37a). However, the court

further held that, under the totality of the relevant circumstances,

the redistricting plan in all seven challenged districts diluted mi-

_/ The state constitutional provision to which the suit re-
ferred was a provision adopted in 1958 prohibiting the division
of counties for the purpose of creating electoral districts.

_/ The proceedings are ciescribed in cur earlier brieE (at 1-2).

_/ OnIy two of these distr:-cts House Districr- 8 and SenaEe
DfsErict 2 -- were subject to and had received preclearance under
Section 5 oE the Voting Righcs Act.



,/ /L/ / 3-

nority votes in violation of amended

in the challenged districts ( ibid. ) .

lhe district court also reviewed at length the racial demograph-

ics and voting history oE each challenged multimember district.

House District 2L. House District 2L, in Wake County, elects six

members to the General Assembly on an at-large basis (J.S. App.

I9a). The population of the district is 2I.8t black, and black voters
/

constit,ute l5.f t oE all registered voters (ibid .).-' 72* of Ehe white

voting age population is registered to vote, and 49.7* of the black

voting age population is registered to vote (id. at 24a d.22). The

black population is so situated that one single-member legislative

district could be drawn within the present boundaries, with a black

populagion oE 67* (id. at 2Oal, Under the challenged plan and its

predeces ,or,-/ on" black legislator was elected in I980 and reelected

in I982 (id. at 35a, 44a). In those elections, respectively, he re-

ceived Ehe votes of 3It and 39t oE the white voters in the primary,

and the votes of 442 and 45t of the white voters in the general elec-

/ The district courE Eound (J.S. App. 5la-52a) that the total-
iEy of the following circumstances, in combination with the use
of-Iarge multi-nember districts, diluted minority votes in each
oE the challenged districts: (f) "the lingering effects of seven-
ty years oE ofiicial discrimination against black citizens in
mltlers touching registration and votio9," (2) "substantial Eo
severe racial potarization in vot,ingr" (3) "the effects of t,hirty
years of persistent racial appeals in political campaigns," {Alia relatively depressed socio-economic staEuS resulting in Sig-
nificant degree from a century of de jure and de facto Segrega-
tion, " and (Sl "the continuing ef f ect bFa ma jority vote require-
ment.'r The court also found that in creating the sole single-
member district challenged Senate Dist.rict 2'- the St,ate had
diluted black voting strength by fracturing the black community
into two districts containing black voting minorities (J.S. App.
52a) .

Subs equent proceedings are described in our earlier brief
).
ourt did not make a finding for
oting age population, which is
of Rome v. United States, 446 U

Section 2 and enjoined elections

any of the districts re-
Ehe preEerred measure.
.S. 156, I86 n.22 (f980);
F.2d r151, l15l-1162

(at 3 n.l

/ Thec
!'arding v
See Cit
!.Iyche v. uaAffiA p"r@,635
(5th Cir. I98L).

/ The challenged multi-member districts conEinued pre-existing
dfstricts and their apportionments (J.S. App. I9a). Thus, it is
possible to evaluate the Dlan's dilutive impact, if an!r by look-
ing at results from more than one election.



,//L//
-4

tion (id. at 44a).

House District 23. House Dist.rict 23, in Durham County, elects

three members aE-large to serve two-year t,erms in the General Assembly

(J.S. App. fgal. The black population is 35.3? of. the tota1, and
l

blacks constitut.e 28.6* of the registered voters (ibid. ). 66? of the

white voting age population is registered to vote, and 52.gt of the

black voting age population is registered (id. at 24a n.22). The

black population is so siEuated that one single-member district could

be drawn within the present boundaries, with a black. population oE

70.9t (id. at 20a). Under the challenged plan and its predecessor,

this district has elected one black representative in every election

since L973 (id. at 35a). The btack legislator was unopposed in Ehe

general election in 1978, and in both the primary and general elec-

tions in 1980. In L978, he was elected with 16t of the white vote in

Ehe primary, and in Lg82 he received 372 of the white vote in the pri-

mary and 432 of the white vote in the general elect Lon.-/ A second

black candidate also garnered 262 of the white vote in the 1982 Pri-
mary ( id. at 43a-44a) .

House District 36. House District 36, in Mecklenburg County, has

an eight-membei !{ouse delegation, elected at-Iarge (J.S. App. l9a).

Blacks constitute 26.5? oE the district's populaEion and I8? of its

registered voters (ibid.). 732 oE the white voting age population is

registered to vote, and 50.81 of the black voting age populaEion is

registered (id. at 24a n,22), The black population of the district is

so situated thaE Ewo single-member legislative districts could be

drawn that would be 55.11 and 7L.2t black (15|. at 20a). Under the

present p1an, one black representative was elected in I982; he is the

first black citizen to be elected to the House from Mecklenburg County

in this century (id. aL 43a). He received 50? oE the white vote in

the primary and 422 of the white vote in the general election (id. at

/ In the
dftes, two
44a).

L982 primary
of whom eJere

election ihere were only Eour candi-
black, for three positions (J.S. ApP.



, //L//

qtil .-/ A

white vote

(ibid.t.-/

5-

second, unsuccessful, black candidate received 39t of the

in the L982 primary and 29* in the general election

House District 39. Ilouse District 39, in a part of Forsyth Coun-

ty, has five at-large seats in the General Assembly (J.S. App. 19a).

The population of the district is 25.It black, and blacks constitute

20.8t of the regisEered vot,ers (ibid. ). 69.4t of Ehe white voting age

population is registered to vote, and 54.1? of the black voting age

population is also registered (id. at 24a a.22). ?he black population

is so situated thaE one single-member legislative district, with a

70.01 concentration of black voters, could be drawn (id. at 20a).

Under the present plan, two of the five representatives elected in

L982 were black; under the predecessor plan, a black represenEative

qras elected in L974 and reelecEed in L976 (id. at 35a1. The Ewo black

representatives elected in L982 received 252 and 36t of the white vot,e

in the primary election, and 422 and 462 in the general election ( id.

at 43a). One of these representaEives had previously won the Demo-

cratic nomination in 1978 and 1980 (with 282 of the white vote in 1978

and 40? of the white vote in I98O ) , but lost the general election in

those years (id. aE 42a-43a).

Senate District 22. Senate Distric[ 22, in Mecklenburg and Ca-

barrus Counties, is a four member district (J.S. App. l9a). The

population is 24.3t black, and 15.82 of the registered voters are

black (ibid. ). In l,lecklenburg County, 732 of the white voting age

population is registered to voter €rs is 50.8? oE the black voting age

population (id. at 24a n.22).-' The black population is so situated

that one single-member districE could be created with a 70.0? black

_/ There were only seven white candidates for eight
in the primary (J.S. App. 42a).

_/ In addition, Ehe district court observed that a
zen has been elected mayor of the City oE Charlotce,
38? of the white voce in Ehe general eiection against
R.epublican (J.S. App. 35a).

pps i t ions

black citi-
receiving
a white

_/ The district court did not make a finding fcr Carrabus
County (see J.S. App. 24a-25a n.22).



'//L// 6-

population (id. at 2Oa). Under the present planr oo black Senator is

part of the delegati.on; however, a black citizen was elected from

1975-I980 (id. at 34a). The black senatorial incumbent (Alexander)

received 47* of the white vote in the 1978 primary, and 4It of the

white vote in the general elecEion; his share of the white vote

dropped to 232 in the I98O primary (5]. at 42a1 . A second black can-

didate (PoIk), running in L982r garn€t€d 32* of the white votes in the

primary and 33t in the general e1ecEion. Id. at 42a.

INTRODUCTION AND SUM},IARY OF ARGUMENT

This is the first case in this Court to accord plenary appellate

review of a trial court's Einding of a violation of t,he 1982 amendment

to Section 2 oE the Voting Rights Act. That provision, enacted after

an intense legislative struggle, represents a studied compromise that

condemns only Ehose electoral procedures that "result" in a denial of

an "equal opportuniEy to participate in the electoral process." That

conclusion is a matter of law, the proper conception of which must be

established and assured by this Court. This ultimate determination

requires delicate judgments that can hardly be reached or reviewed by

any mechanical standard. If the integrity of the Section 2 compromise

is to be maintained, noreover, an appellate court must assure itself

not, only that. a trial courE has considered the apProPriate evidence in

reaching its conclusion, but also that this evidence, taken as a whole

and properly balanced, supports the district court's ans!'rer to the ul-

timate question that Congress has Prescribed.

The disErict court considered all of the evidence, but it reached

an ultimate conclusion at odds with the correct, legal standard. If

Ieft undisturbed, that decision means that wherever Ehere has been

discrimination in the past and some measure of racial polarization in

voting in the present, district courts wiII be free to strike down

virtually any scheme that does not or even Chose that do deliver

electoral successes proportional t.o minority voting strength. This is

not what Congress inEended. Specifically, we shall argue thaE che



//L// 7-

trial court by ignoring recent minority electoral successes in the

districts in issue could not reasonably have found a violation.under

the proper "equal opportuniEy to participate" standard, but rather

must implicitly have sought to guarantee continued minority eIecEoral

success. Further, the court below adopted and made dispositive a

definition oE racial block voting that, taken literally, might justiEy

finding this factor present in virtually any district with a racially

mixed electoraEe and thus could justify requiring proportional repres-

entation in al1 such districts. Congress crafted a precise standard

for intervention in Ehe electoral process, and fidelity to that
/

standard requires that Ehis judgment be set aside.-'

ARGUITENT

THE DISTRICT COURT ERRONEOUSLY HELD THAT
THE REDISTRICTING PLAN AT ISSUE VIOLATES

N,IENDED SECTION 2 OF THE VOTING RIGHTS ACT OF 1955

A. Amended Section 2 Guarantees Every Citizen The Right To An
EquaI OpportuniEy To ParEicipate In The Politj.cal Process

l. The legislative background of amended Section 2 underscores

the centrality of the principles noted above to the compromise enacted

into that law. Amended Section 2 rellects the consensus of an over-

whelming majority of the Congress, reached only aEter an inEensive and

devisive debaEe, whether to endorse or reject the holding in City of

tlobile v. Bolden, 446 U.S. 55 (1980). The product of that debate was

a provision that does not require proof of racial animus to establish

a violation of amended Section 2 and does not allow prooE of electoral

failure solely or even preponderantly to establish a violation under

the Act. Congress chose an altogether different approach: As adopted,

Section 2 guarantees every citizen equal access to the elecEoral pro-
/

cess and thus focuses upon that process itself.-

_/ We will not discuss House District I and
because appellants' challenge to the district
as to those districts is not within Ehe scope
tation of probable jurisdiccion.

/ At the same time, the legislative history
2-is complicaEed, variegated, and, oo occasion
(continued)

Senate District 2,
court's conclusion
oE the Court's no-

of amended Section
, contradictory.



//L// 8-

a. Amended Section 2 originated in the 97th Congress, when H.R.

3ll2 was introduced to extend certain features of the f965 Voting

Rights Act and Eo modify Seetion 2 oE the Act because of the decision

in City of MobiIe. H.R. 3ll2 would have eliminated an intent standard

by forbidding any jurisdiction from imposing or applying any electoral

pracgice "in a manner which results in a denial or abridgemenE oE the

right * * * to vote on account of race or color * * '* rn-t a test

claimed by its supporters to stem from White v. Resester, 4L2 U.S. 755

(1973), and Whitcomb v. Chavis, 403 U.S. L24 (1971). Most of the

discussion in the House regarding lI.R. 3112 was devoted to oEher

aspects oE the bill; the proposal to amend Section 2 attracted Iittle
/debate.-' As passed by the House, H.R. 3112 contained the results

test in the original biIl and a disclaimer that numerical underrePre-

sentation itself violated Section 2.-/

The language ultimately incorporated into this provision was pro-
posed by Senator Dole aS a means of resolving a deadlock in the
Senate Judiciary Committee that arose after Ehe Senate ConstiEu-
tion Subcommittee had rejected the House version of Section 2.
In this setEing, undue emphasis must not be given to Ehe views of
any one faction in.the controversy. The legislative-history musE
be-understood in terms of its dominant movement and fundamental
purposes. Statements of the majority in the Senate Report, while
iffuminative on many issues, muse be evaluated against the record
established beEore the Congress as a whole and particularly
against statements of the additional views of individual members
who insisted upon and supported the compromise. The statements
of Senator Dole, the Sponsor of the compromise, must also be
given particular !./eight.

/ H.R. 3198, 97th Cong. I lst Sess. (1981) (emphasis added).
S6e I Extensi.on of the Votin
subco . onSubcomm. on Civil and Constitutional Rights of the House Conm. on

IEEE-EEEA-s llouse Hearing: ) .

-/ See generally Boyd & Markman,.The 1982-A{enlments; to-the
Voting Rights Act: A LegislaEivq ilistgryr 40 hlash. e Lee L. Rev.

d as BoYd & l'larkmanl.

_/ The disclaimer provided: "The fact that members of a minor-
i[y group have not been elected in numbers equal to the group's.
proportion of the population shaIl not, in and of itself, consti-
tute a violation of this section." H.R. Rep. 97-227, 97th Cong.,
lst Sess. 48 (198f) (emphasis added) [hereinafter cited as House
Report I . Although he had sponsored the disclaimer, Representa-
tive Hyde later concluded that it failed to achieve its purposes.
See I Voting Riqhts Act: Hearings on S. 53 et al. Beforq.the Sub-
comm. nate Comm. on the JudiciarY,

Ihereinafter cited as Senate Hearings]; id. at 886-887 (Ietter
from Rep. Hyde to sen.ffi



//L// 9-

b. After the House passed H.R. 3112, the Senate Subcommittee on

the Constitution began hearings on two bil1s, one that contained the

results test in H.R. 3I12 (S. 3112) and one Ehat would have retained
/the City of Mobile standard (S. 1975).-' The ensuing debate focused

on the proper standard Eor Section 2. Proponents of a results t,est

chiefly argued that the Court's holding in City of Mobile insulated

discriminatory practices from review because of the difficulty oE ob-

taining evidence regarding the subjective moEivations of legislators,
/

especially when the practices in question were adopted long ago.-'

They proposed that the analysis should be Sbsed upon the various so-

caI1ed "ob jective" f actors identif ied in f.ihite v. Reqester and pre-

Citv of MobiIe lower court cases applying that standard. Critics of

Ehe results test agreed, in essence, that a finding of unlawful vote

dilution could and should be made on t,he strength of objective evi-

dence, but !.rere concerned with, among other things, the potentially-

Iimitless scope of the test.-' A principal concern vras the implica-

tion left by the disclaimer: given its lirnited terms that numerical

underrepresentation of minorities would not amount "in and oE itself"

to a violation of Section 2 -- opponents of the results test main-

tained that proportional representation would ineluctably follow sim-

ply Erom proof of. some additional factor identified in White or else-

_/ Senators Kennedy and Mathias (and more than 50 co-sponsors)
introduced S. L992, 97th Cong., lst Sess. (L982), which was iden-
tical to H.R. 3LL2, L27 Cong. Rec. Sf5694 (daily ed. Dec. L.6,
f98f). Senator Grassley introduced S. L975, 97th Cong. Ist Sess.
(198I). L27 Cong. Rec, 5L5372 (dai1y ed. Dec. 15, f98I).

_/ See, e.9., I SenaEe Hearinqs 199 (statement by Sen. I'lathi-
a5); id. aE-256, 255 (testimony of Benjamin L. Hooks, Exec. Dir.,
NAACP); id. at 290-29L (testimony of Vilma Martinez, Pres.,
MALDEF); 5[. at 8f3-8i9 (Prepared Statement of Armand Derfner).
Another ciTticism was that the intent test fostered racial divis-
iveness by requiring a person to be branded as a racist before a
violation could be found. See id. at IlSl (Prepared Statement of
Arthur Fleming, Chairman, U.S. e6mm'n on Civil Rights).

_/ A compleEe discussion of the objections to the results test
is conLained in the Subcommittee's Report. See S. Rep. 97-4L7,
97th Cong., 2d Sess. i08-Il-I, L27 -158, I69-I73 (f982) [herein-
after cited as Senate Reportl (Voting Rights Act: Report of Ehe
Subcomm. on che ConsEitution of the Senate Judiciary Comm.;
Ihereinafter cited as Subcomm. Report]; see also Boyd & Markman
1396-f405 (discussing Subcommittee's objections ) .



//L//

*h"r".-/

',core value" or an "ultimate or threshold criterion" other than Pro-

portional representation for evaluating vote dilution cIa i^r.-/ Sup-

porters of the results test repeatedly assured its critics that it was
/

not a mandate for proportional representation,-' that it $ras merely a

means of ensuring that minorities were not effectively "shut out" of
/the electoral process,-' and thatr given the heavy burden the test

placed on a plaintiff -- one supporter described it as "incredibly
/

difficult" -/ the test would invalidate only those elecEoral prac-

tices that denied minorities an equal opportunity to participate in
/

Ehe potitical process.-' As Armand Derfner, head of the Voting Rights

project, put it, Ehe "goal" of amended Section 2 "is to create an op-

portunity nothing more than an opportunity to participate in the
/political system." I Senate Hearings 821 (Prepared SEatement).-

_/ See, e.9., I Senate lie+ring: 515- (statement of Sen. Hatch);
id-. ar 2294. lte@. Walrer Berns); id. at 407-408
Gestimony of Rep. Hyde); id. at 424-432 (testimony of Prof .

Barry R. Gross); id. at 555-(testimony of Prof. John BunzeI); id.
aE Ia38 (testimony of Prof. Irving Younger). See generally
Subcomrn. Report 142'L45.

_/ Subcomm. Report I37.

/ See, e.g., I Senate Hearinqs 220 (Prepared Statement of Sen.
KEnnedy)(I]rfrecouffi1earthatunderEhestandardin
our biII there is no right to a quota or to proportional rePre-
sentation, even in the context of at large elections" ) i id. at
243 (Benjamin L. Hooks, Exec. Dir., NAACP); id. at 283, 287 (Mern-
orandum 5f Ralph G. Neas, Exec. Dir., LeaderEEip Conf. on Civil
Rights); id. at 796 (testimony of Armand Derfner, voting R.ights
Project ) .

/ As Armand Derfner, head of the Voting Rights Project, Put
iE, "It]he precise proof might vary, but Ehe essential element of
proving that the racial minority was'shut, out,' i.e., denied
iccess not simply Eo winning offices but to Ehe oPportunity to
participate in the electoral system -- was always required Iunder
pre-Ci tv of Mobi te cases I . " I Senate . Hear inqs 8I0 ( Prepared 

_

Statffiso, e.g., id. at 223 (Prepared statement of
Sen. Kennedy ) ; id. al W ( tesEimony of David waibert ) .

_/ I Senate Hearings 368 (testimony oi Laughlin McDonald,
Southern Regional Dir. r ACLU).

_/ See, e.9., I Senate Hearings 20I
as); id. at 223 (Prepared StaEemenE oE
ty shut out of a fair opportunity Itol
tion"); id. at 8I0, 8t9-820 (Prepared
Derfner ) .

( cont i nued )

l0

Another major criticism was that the l{ouse version lacked a

(testimony of Sen. l4athi-
Sen. Kennedy) ( "effective-
participate in the elec-

Stacement of Armand



//L//
11

Nonethel€ssr the Constitution Subcommittee rejected the House effects

test in favor of Ehe City of Mobile standard. 2 Senate Hearings I0.

c. To break the deadlock, Senator DoIe, with the backing of the

President, offered a compromise version of Section 2 that responded to

criticisms of the effects test by introducing "additional language"

incorporated from White v. Regester "delineating what legaI standard

should apply under t,he results Eest" and "clarifying that Ithis test]

is not a mandate for proportional representation." 2 SenaEe Hearings

50 (statement of Sen. Dole); id. at 58-59. The most significant fea-

ture of Ehe compromise !.ras to modiEy and expand the language of the

House-passed bill to ensure that "equa1 opporEunity," not "proportion-

al results," would be the legal test. Senate Report I93-I94 (Addi-

tional Views of Sen. Dole); id. at 199 (Supplemental Views of Sen.

Grassley). As Senator DoIe put it, because his version of amended

Section 2 "focusIes] on access to Ehe processr oot election results"
(2 Senate Eiearinqs 6L-62), the question to be answered is "not wheEher

Iminorities] have achieved proportional election results," but "whe-

ther members oE a protected class enjoy equal access. I think that is

the thrust of our compromise: equal access, whether it is oPen; equal

access to the political process" (id. at 50; see also 2 Senate Hear-

incs 45 (Sen. Leahy) ("Ii]t is the opportunity to participate, not the

actual use of that right, which is crucial * * *")). The Committee

adopted Senator DoIe's compromise (id. at 86), as did the entire

Senate (f28 Cong. Rec. 57139 (daity ed. June 18, I982)). Although the

Senate biIl differed from the House version, t.he House dispensed with

a conference and adopted Ehe Senate biII (id. at 113845 (daily ed. June

_/ Other supporters of the results standard made the same
point. See, €.9., 1 Senate l{earings 305 (Prepared Statement of
ViIma S. I'tartinez , President, MALDEF 1 ( "The issue then, is not
proportional representation, but equal access to the political
process"); id. aE 372 (LaughIin McDonaId, Southern Regional Dir
ACLU) ( "9{hat Ehose Ipre-City of !4obi1e ] cases do is establish
equality of access " ) . See also id. at 223 (Prepared StatemenF-
Sen. Kennedy); id. ac 275-276 (PEpared Statemenc of Ben jamj-n L

of

!{ooks, Pres. NAACP); id. at 283, 286-287 (Memorandum from RaIph
G. Neas, Exec. Dir., Leadership Conf. on Civil Rights); iq. aE
305 (Prepared Statement of ViIma S. Martinez, Pres. , I4ALDEF) ; id.
at 706 (Memorandum from Frank R. Parker, Lawyers'Comm. for Civil
Rights Under Law).



//L//
L2

/
23, Lg82)).-'

2. The legislative history thus reveals that the compromise en-

compassed three key areas of consensus. First, there was widespread

agreement that direct evidence of intent to discriminate should not be

necessary to establish a violation under Section 2. House Report 29;

Senate Report 193 (Additional Views of Sen. DoIe). Second, during the

course of the debate, a consensus -- Senator DoIe described it as "a

unanimous consensus" developed against permitting Section 2 claims

to be based upon Lhe inability of a group to achieve representation in

proportion t,o its population within the jurisdiction.-' Rather r lTt€rl-

//
bers of Congress who favored-' o, opposed-' the original results test

and the compromise version of amended Section 2, as well as privaEe
/

supporters of the biII,-/ agreed that proof of minority underrePresen-

/ There was little debaEe in the l{ouse, and, with one excep-
fon, no one disagreed wit,h the thrust of Seantor DoIe's posltion
hat "equal accesi" and an "egual oPporEunity to participateu was
he standard for amended Section 2, See L28 Cong. Rec. H3840-
84f (daiIy ed. June 23, 1982) (Rep. Edwards); tg.- at I{384I
daily ed. .lune 23, L982) (ReP. Sensenbrenner); id. at H3842
daily ed. June 23t 1982) (Hyde); id. at H3846 (Rep. Butler).
ut see id. at 113844 (daily ed. June 23, I982 (ReP. Lungren)
describfng standard in terms of intent).

t-

t
t
3
(

(

B
(

/ Senate Report 193 (Additional Views of Sen. DoIe); Senate
REport 33; Houie Report 30; L28 Cong. Rec. 56647 (daily ed. {Y19
L7-, 1982) (Sen. Graisley); id. at, S6920 (daily ed. June L7, f982)
(Sen. llatch ) ; id. at, S595I lEaily ed. "Tune L7 , L982 ) (Sen. Dole )

tB Weekly Compl-Pres. Doc. 845 (June 29, 1982) (President's
signing statement ) .

/ As Senator Kennedy explained his version: "Sqs!:.en-L-gs
amLnaeawouidnotmakemerefailureofminorities@-hat came as the
reEuft--E =t Iarqe elections. Plaintif f f s would have Eo prove

inq Ehat, in the total circumstances
minority vot,ers not only failed 'to win' but were effectively
shut ouL oE a fair oppoitunity Ito] participate in the election."
I Senate ilearings 223 (emphasis in original)(Prepared Statement).

_/ See Subcomm. Report I39'L47.

_/ Benjamin Hooks, Executive Director of the NAACP, made this
po-int duiing the Senate hearings: "I would lay t.hat and let me

be very frank simply Proven results would not be enough Eo
triggei the mechanism of Section 2. IF- would oniy trigger i! if
the-iesults were caused by some practice. Results simply trigger
looking at the practices; that is aII." I Senate Hearingt 267i
see alio, €.9., id. at 283 (Memorandum of @Exec.
Dir., Leadership Conference on CiviI Rights); id. at 420 (Laugh-
lin McDonald, Southern Regional Dir., ACLU) ("I do not know of a
single case 'r * * that says the mere absence of blacks from of-
( cont inued )



, //L// I3

tation was a necessary but not a sufficient element of a successful

vote dilution claim, as the Court's decisions in Whilg and Whitcomb

had he1d.-/ Third, both sides in the controve.=V .g*"a an.a a*

concepts of unconstitutional vote dilution developed by this Court in
i

White and Whitcomb and ab apptied by the lower courts prior to City of

Mobile -' should govern amended Section 2 cases.-

Amended Section 2, as the text itself makes clear, thus focuses

not on guaranteeing election results, but instead on securing to every

citizen the right to equal "opportunity * * * E? participate in the

political process * * *'r (42 U.S.C. I973). As Senator DoIe, whose

viewsr ds principat sponsor of the compromise Section 2 that passed

the Congress, provide an authoritative guide to the statute's con-
/

structionr- stated in explanation of his.proposal, "Ic]itizens of alI

races are entitled to have an equal chance of electing candidates of

fice is ever enough Eo violaEe either section 2 ot the l4th or
the lsLh amendment. Not only are there no cases that have ever
said that, but every case says Precisely the opposite"); 5[.- at
957 (Prof. Norman Dorsen); id. at 987 (Prepared SEatement of
Joseph L. Rauh, Jr.).

/ Because the Senate endorsed this principle as weII as the
Co-urt's decisions in Whitcomb and tihite which had enunciated it,
theStatem.entintneEffiPorttrrateneconSistentdefeatof
minority or minority-backed cindidates in at aE-large system it-
self woutd establish a violation of amended Section 2 (Ilouse Re-
porE 30-3f) does not exPreSS Congress' intent. See also page
note infra.

/ See, €.9.r Blaqk yo'qers v. McDonouqh, 565 E.2d I (IsE Cir.
-L 

I

t9tt ) ; HenEIT v. -@,--559 F. 2d L265 ( sth ci r . Le77 .) i ryi_v.
Moore, 5ffid llt@h Cir. L976); Zimmer v. t{cKeithen, 485.
fr{tZgl (5th Cir. L973) (en banc), aETrEon other grounds sub
nom. East CarroII Parish School Bd. v. l"larshal1, 424 U.5.536-
iT9'z6 L2l6=Wppendix Eo Pre-
pared Statement of ffi, Lawyers' Comm. for Civil
nignUs Under Law) (collecEing cases). The Court discussed these
factors in Rogers. See 458 U.S. at 6L9'620 n.8.

-/ see House Report 30 & n.r04; senate RepotL.27-30); id' at
r6'a n.24 1 6 (Additional Views of Sen. Hatch); id. at LgT- (Addi-
tional Views of Sen. Dole); id. at 198 (SupplementaI Views oE
Sen. Grassley); L28 Cong. Rec. 5694I (daily ed. June L7, r982)
(Sen. Malhias); id. at S595I (daiIy ed. June L7, L982) (Sen.
DoIe); id. at, H3E-a'f (daily ed. June 23, f 982) (Rep. Edwards).

_/ See, e.g., Grove Citv Collegq v.-Bell, No. 92:7-92 (Peb. 28,
1084), slip op. ". BelI, 455 U.S.
5L2, 527 (1982 ) . ThIs--is .oa;tfauf aif y Erue given Senator Dole's
pivocal role in the adoption of amended Section 2 and Ehe absence
of a conference report on the Act. See North Haven, 456 U.S. at
527 .



//L//
t4

their choice, but if they are fairty afforded that opportunityr and

lose, the 1aw should offer no redress." Senate Report 193 (Additional

Views of Sen. Dole). Senator Dole made the same point during the

Eloor debate on his compromise (f28 Cong. Rec. 55951 (daily ed. June

L7 r 1982 ) ) and added thar ( ibid. ) :

. IT]he standard is wheEher or not the political processes
are equally "open," whether there is access, wheEher they
are open in that members of a protected class have the same
opportunity as olhers to participate in the political pro-
cess and to elect candidates of their choice.

In response to a question from Senator Thurmond whether "the focus on

Ehe section 2 standard lisl on equal access to the political Process

or is * * * on whether a minority group has achieved equal election

results?" (id. at 56952 (dai1y ed. June L7, 1982)), Senator Dole

replied (ibid.):

The focus in section 2 is on equal access, as it should
be. I thank the Senator for directing the question. I
know oE no one i.n this Chamber and I heard no one
anywhere else indicate that it should be otherwise. It
should be on access. Is the system open to people in
Kansas, South Carolina, North CaroIina, California, New
York, wherever? Do they have access and an opportuniEy to
casE Eheir vote? It is not a right Eo elect someone of
their race but it is equal access and having their vote
counted

Amended sect j-on 2 , Senator Dole Eur.ther explained, would " Ia ] bsolutely

not" provide any redress "if the process is open, Lf there is equal

access, LE there are no barriers, direct or indirect, thrown up to

keep someone from vot,ing or having Eheir vote counted, or registering,

whatever the process may include" (ibid.). In his viewr So long as

"It]he political process leading to nomination or election Iis] * * *

equally open to part,icipation by members of a class of citizens with-

out regard to race, color, or language minority" there could not be "a

denial or abridgment of the right to vote under the amendment" (id. at

57L20 (daily ed. June 18, L982) (colloquy between Sen. Dole and Sen.

Gorton); see also id. at 57119 (daily ed. June 18, L982 (Sen. DoIe));

cf. Whitcornb v. Chavis,403 U.S. at f53.

Supporters of amended Section 2 Ln the Senate

Dole's understanding of his compromise amendment to

repeatedly emphasized that the provision guaranteed

echoed Senator

Section 2. They

"equaI acces s"-/



//L//
l5

or "an equal opportunity to participater"-' but that it did not apPly

where minority voters or candidates "failed to participate given an
//

equal opportunityrr-z to do so.-/ These statements demonstrate that

the supporters of Senator DoIe's compromise version of amended Section

2 shared his construction of its terms. Accordingly, the central

issue under amended Section 2, as all participants in the Senale floor

debate agreed, is whether a challenged electoral practice "resultIs]
in the denial of egual access to any phase of the electoral process

/
for minority group members" (Senate Report 30 (emphasis added)),-'

_/ E.9., L28 Cong. Rec. 56655 (daily_ed. June 10, f982) (Sen.
Boren]); accord, id. at 56500 (daiIy ed. June 9, L982) (Sen.
SEevens) ("the isile to be decided under Ehe results test is
whether the political processes are equally open to minority
voters" ) .

_/ Id. at 55560 (daiIy
55557 (daily ed. June 9,

_/ E.q., id. at 56779
ter) ).

ed. June g, Lg82) (Sen. Kennedy); id. at
I982) (Sen. Stevens).

(daily ed. June 15, L982) (Sen. Spec-

_/ Accordr €.9., i4. at 55647 (daily ed. June 10, 1982) (Sen.
Grassley); id. at S6717 (daily ed. June L4, L982) (Sen. Tower);
id. at 55717:557I8 (daiIy ed. June L7,1982) (Sen. Moynihan); id.
ET s6gs+ (daiIy ed. June L7, L982) (Sen. Kennedy); ibid. (Sen.
IIefIin); id. at S71I0 (daily ed. June I8, 1982) (Sen. Metzen-
baum) ; id.at 57l-18 (Sen. Sasser ) ; id. aE S7I38 (daily ed. June
18, I982T (Sen. Robert Byrd). As Senator Robert Byrd put it,
"It]he law seeks to protect the right to vote, noE the abiliEy to
be guaranteed election." Ibid.

_/ The legislative background to amended Section 2 also makes
this point clear in another way. Under amended Section 5 of the
Act, jurisdictions with a history of discriminaEion touching upon
voting may not obtain approval to enforce changes in their elec-
tion laws that have the effect of causing a retrogression in the
position of minorities with respect to their exercise of the
franchise. City of Lockhart v. UniEed States, 46A U.S. L25t 133-
l3G (1983 ) ; mrares;J2s u. s. 130, 137 (1976 ) . The
Iegislative history of amended Section 2, however, conclusively
shows that the Section 5 retrogression standard was not incorpor-
ated into Section 2. Senate Report 68; id. at 104 n.24 !l I (Sup-
plemental Views of Sen. Hatch); L28 Cong. Rec. I{3841 (daily ed.
June 23, 1982) (remarks of Rep. Sensenbrenner wit.h Rep. Edwards
concurring); id. at 57095 (daily ed. June 18, L982) (Sen. Ken-
nedy); id. at 56930 (daiIy ed. June L7, L982) (Sen. DeConcini); 2

Senate Hearings 80 (Statement of Sen. Dole); Senate llear i nE
#@ofLaugh1inMcDonaId,SouthernRegiona1Dir.,

ACLU) ; id. at 449 ( testimony of Mayor i{enry L. Marsh ) ; id. at 80I
(testim&y of Armand Derf nei I ; id. - aE 89I-892 (coIloouy between
Rep. Sensenbrenner and Sen. Grassley); id. at I254 (colloquy be-
tween Subcomm. Counsel Markman and JuIius L. Chambers, Pres.,
NAACP Legal Defense Fund); id. at 1575-L576 (Prepared Statement
of Nathan Z. Dershowicz, Amer. Jewish Congress). The Senate
report expressly states that "Ip]Iaintiffs could not establish a
( continued)



//L//
t5

3. The foregoing discussion makes clear that appellees err in

claiming that districE court's finding that the multimember district

plan dilutes black voEes is subject to Fed. R. Civ. P. 52(a). Mot. to

Dis. 2L,35-35. Like proximate cause in the law of torts, the term

',results" requires an evaluation of the facts in light of the PurPoses

of the policy being served. Cf. Metropolitan Edison Co. v. PANE,450

U.S. 766, 774 (I983) (construing terms "'environmental effect"' and

"'environmental impact"' in light of "the congressional concerns that

led to the enactment of NEPA" ) . The question under amended Section 2

-- whether a particular electoral practice "resuIts" in the denial of

"equal access" Eo the political process thus calls for more than a

factual conclusion not only because Congress eschewed reliance upon a

"mechanical 'point counEing' device" to resolve SeCtion 2 claims

(Senate Report 29 n.1l8i see 128 Cong. Rec. 56648 (daily ed. June L7,

Lg82) (Sen. Grassley)); but also because the undertaking requires a

careful analysis of the challenged electoral processr ES informed by

its acEual operation, including the nonquantifiable, but undeniable,

fact that a numerical minority may exercise substantial, and sometimes

decisive, influence upon the process. See Whitcomb, 403 U.S. at f49-
/155.-' The Court has recognized in a vari.ety of pther situations that

a conclusion based largely upon the.application oE a rule of law to a

/particular set of facts is a legal, not a factual conclusion.- In

Section 2 violation merety by showing that a challenged reappor-
tionment * * * involved a retrogressive effect on the political
strength of a minority group" (Senate Report 58 n.224). In other
words, while a retrogressive effect may be relevant evidence,
access, not effect, is the touchstone of a Section 2 inquiry.

While some courts have said that retrogression alone may vi-
olate amended Section 2, those courts have failed to consider the
above legislative history. See Ketchum v. Byrne, 740 F.2d 1398,
L4O7 (7th Cir. 1984), cert. deniilMl 14'Ef,TlJune 3, 1985);
Buskey v. Oliver,565 F. Supp. L473t L482 (M.D. AIa. 1983).

_/ See, e.9., Whitcomb, 403 U.S, at l-50 (Eootnote omitted)
(where "ghetto votes were critical to Democratic Party success *
* * it seems unlikely that the Democratic Party could afford to
overlook Ehe ghetto in slaEing its candidates")i Dove v. Moore,
539 F.2d at I153, Il55 n.4 (noting that local voters "have a
strong affinicy for incumbents" and that each candidate's 402
black constituency "cannot be ignored with impunity" ) . See also
Seamon v. Up-ham, No. P-81-49-CA (E.D. Tex. Jan. 30, 1984)/ af f 'd,
SarakE v. SeErnon, No. 83-1823 (Oct. L, I984); page note inf ra.
l6tETnued )



//L//
L7

addition, Eor plaintiffs as weII as defendants "the stakes in terms

of impact on future cases and future conducE are too great to €o- :

trust them finally to the judgment of the trier of fact" (Bose Corp.

v. Consumers Union of United States, Inc.r No. 82'L246 (APr. 30,

1984), slip op. 15 n.17i see id. at 15-25). Were the ultimate issue

under amended Section 2 simply a question of fact, plaintiEfs would'be

disabled from effectively challenging decisions where, on an essen-

tial1y standardless basisr the court determined that the "totality of

the circumstances" did noE support their case. Accordingly, because

is it clear that an appellate courE must independently resolve mixed

questions of Eact and law (Bose Corp., slip op. 15), Ehis Court is not

bound by Rule 52(a) in determining whether the multi-member districEs
/

in the Lg82 reapportionment plan violates Section 2.-'

B. The District Court l,lisapplied The FacLors Appropriate To
An Analysis Of Appellees' CIaim Of UnlawfuI Vote Dilution

In voiding the use of multi-member districts in the 1982 reapPor-

tionmenE plan, the district court made two Eundamental errors in con-

struing and applying amended Section 2, either of which is sufficient

_/ Compare, €.9.
Enterprises, No. I
land v. .Washi@
r",m wainw?ffiT]vl
l5-17, and Patton

, llarper & Row, Publishers, Inc. v. Nation
:- ZO, anA@
, No. 82-f554 (May L4, 1984) slip op. 27'28,
witt, No. 83-L427 (Jan. 2L, I985), slip op.

v. Yount, No. 83-95 (June 26, 1984), slip op.

-under amended Section 2 is similar to the type
ppeIlaEe courts follow in determining whether a
ative procedure is consist,ent with due Process

ll-I3 & n.rffie). Egenerally Bose Corp. v. Consumers.union
of Un j"ted Stat3:-l Inc. , No. 82'L246 (Apr . 30, 1984 ) . f n this re-
spect, the inqurry
of analysis that a
particular adjudic
(e.o., Walters v. National Ass'n of Radiation Survivors, No. 84-
'457T (June-ZE;f985)) ana-wheEhei a state law violaEes the First
Amendment Establishment, Clause (e.9., Grand Rapids SchooI Dist.
v. BaII, No. 83-990 (JuIy I, f985) ).

/ The decisions of this Court and Ehe lower courts both before
Cfty of MobiIe and after passage of amended Section 2 also make
EE1S polnt clear. These decisions have engaged in a far more
searching review of a district court's analysis than application
of RuIe 52(a), which appellees advocate here, would permit. See,
e.g., Whitcomb v. Chavis, 403 U.S. at 144-I55; Jonei v. Ci!y qe 

-EuEEockT-777r.2a f6Z;-83-386 (sth cir. 1984); !{endrix, 559 F.2d
at-TUE-L27L; David, 553 F.2d at 929-93L; Bradas, 508 F.2d at
1rl2-lrr3. thE-ffirt in velassuez v. cityffiilene, '725 F.2d
1017, r021 (5th Cir. r984ll;Eus erred@t an ulti-
mate Section 2 t Lnding is a question of Eact. The court $ras rnis-
taken as to the central question to be answered under the sta-
tute. Pages supra.



//L//
18

to require reversal. First, the court found a violation of the sta-

tute in the absence of evidence that the "results" of the multi-member

Iegislative districts challenged here denied minority voEers an equal

opportunity to participate in the electoral process. Second, the

court adopted an erroneous definition of racially polarized votingr

one that misconceives the proper force of that criterion as an element

of a successful Section 2 claim.

l. a. Each of the districts is a multimember district. However,

it is firmly segtled that rnultimember districts are noE inherently un-

Iawful. Senate Report 33; Whiter 4L2 U.S. at 765i Whitcornb v. Chavis,

supra; see also 2 Senate Ege:inqs.8f (statement of Sen. Dole). While

it is true that in each of Ehe districts at, issue here it would be

possible to create one or more single-member districEs with effective

black voting majoriEies (see pages supra), Ehis point cannot be dis-

positive. Minority voters have no right to the creation of safe elec-

toral districts merely because they could feasibfy be drawn. Whitcomb

v. Chavis established that principle prior to the L982 amendment to

Section 2, and the Court's recent sunmary affirmances in Brooks v.

AIlain, No.83-f865 (Nov. I3,1984), and Strake v. Seaman, No.83-1823

(Oct. 1, 1984), have reaffirmed Ehat principle under amended Section
/.Z.-' Nor can it be presumed wit.hout more that "safe" seats Eor minor-

/ In Seaman, the district court rejected a Section 2 claim
tEat mino@voters were entitled to a "'safe' district in which
the minority population approaches 55? of Ehe overall populaEion"
(No. P-8I-49-CA (E.D. Tex. Jan. 30, 1984), slip op. ff-I2).
dnder the challenged plan, rninority voters, while not, guaranteed
the abiliEy to elect one a rePresentative of their choice, were
fOund tO "exert a significant impact" and t,o "PIay pivoEal roles
in key elections,'in two high minority impact districts (i<]: at
15). Similarly, in Brooks, the plaintiffs urged th9 three-judge
districE court to create a congressional district with a 642
black population minimum on the ground that, because of low voter
registiaLion and turnout among blacks, they would be unable to
elect candidates of their choice with a lesser percentage. In
rejecEing the super-majority plans proposed by the plaintiffs,
the court noted that "Amended S 2 * * * does not guarantee or
insure desired results, and it goes no further than to afford
black citizens an equal opportunity to participate in the poli|--
ical process" (No. GC82-80-rrK-O (N.D. Miss. Apr . L5, 1984) , slip
op. 15). This Court's summary affirmances in Seqmon and Brogks
eitablish that minorities do not have a right under Section 2 Eo
the creation of "safe" minority-controlled Cistrictsr €t/€o where
other objective factors contribute to the finding of a violation
( cont inued )



//L// I9

ity officeholders would necessarily be in Ehe interests of minority

voters. See United States v. Board of SuPsIvlsors, 57L F.2d 951, 955

(5Eh Cir. 1978). AccordingLy, if the "gravamen" of appellees' claim

is simply that North Carolina chose to use multimember districts where

,'there are sufficient concenErations of black voters to form majority

black single-member districts" (J.S. App. 4a), their claim necessarily

Ealls short of establishing a violaEio n.-/

b. Moreover, in three of the challenged districts, black candi-

dates supported by the black community have been elected under the

challenged plan in numbers as great as or greater than would be ex-

pected under a single-member pIan, and black voters have wielded in-

fluence over other seats as welI. Ever since L973, black voters in

llouse DisErict 23, who make up 35.3t of the population and 28.6t of

Ehe registered voters, have elected a black member of the three-person

delegation. Pages "upr".-' 
In House District 21, the 2L.8t black

minori.ty, constituEing 15. I Z of the registered vot,ers, elected a black

representative to its six-member delegation in 1980 under a substan-

of Section 2 under the " totality of the circumstances. " l'tore-
over, as we explained in our brieE (at 8-f9) in City Council v.
Ketchum, cert. denied, No. 84'527 (June 3,1985)-(a copy of which
EFEEn served upon the parties), creation of suPer-lTlajority
districts as a maLter of law is inappropriate to remedy a Section
2 violation.

/ The district court correctly recognized that a lawful state
poticy regarding a particular electoral practice is entitled to
weiqht lwnitcomb, 403 u.s. at L49; see ppham v. Seamont 456 U.S.
37 [rga)lfur erred by disregarding tEffirth mTfna policy
against splitting legislative districts (J.S. App. 49a-50a). The
c6urt acknowledged that "the state adduced fairly persuasive evi-
dence that the iwhole-county' policy was well-established histor-
ically, had legiEimaEe Eunctional purPoses, and was in its ori-
gins -ompletely without racial foundation" (id. at 50a). BuE the
iourt held that "thaE alI became irrelevant as matters developed
in this particular legislative plan" (ibid.) because the legisla-
ture chose to split counties "onIv when necessary to meet popglq-
tion deviation iequirements or to obtain S 5 preclearance" (ibid.
(emphasis added)). That reasoning is plainly in error. The fact
that the State adhered to its policy except where necessary to
ensure that each voter black and white had his vote counted
equally and Eo ensure that the reapportionment plan did not cause
a retrogression in the political strength of black voters (see
note supra) surely counts in the state's favor.

_/ The population population percentages in the five counties
m5y overestimate the actual voting strength of minorities, be-
cause the percentage voting age population in these district.s may
be less than the population percentage. See page note supra.



//L// 
20

tially-identical predecessor to the challenged plan (J.S. App. l9a)

and reeleeted hin in :1982 under the challenged p1an. Pages supra.

The district court's error is even clearer in House District 39. In

that district, where 25.L2 of the population is black and 20.8* of Ehe
l

registered voters arle black, a black candidate was elected to the

five-member delegation in L974 and reelected in L976. In L982, under

the challenged plan, two black representatives, or 40t of the delega-

t,ion, !,rere elected. Pages supra. By contrast , under the alternative

plan favored by appellees, in each of these.districts black voters

would be relegated to one single-member district with a large black

majorit,y. The ability oE black voters to contest the remaining seats

would be lessened -- indeed, in llouse District 39 minority voters

could have a reduced number of delegates -- and (more importantly)

their electoral influence on the other representatives would be re-
/duced.-' Accordingly, judged simply on the basis of recent electoral

"results," the multimember plans in these distrj-cts have apparently

enhanced -- not diluted -- minority voting strength.

In the remaining districts -- House District 35 and Senate Dis-

trict 22 btack candidates have been less successful. Even there,

however, the 25.5t black minority in the llouse district, constituting

I8t of the registered voters, elected a black member to the eight-

member delegation in 1982, and a second black candidate (who lost in

the general election) received 39t of the white voEe in the primary.

Page supra. In Senate District 22, although the 24.3? black minori-

/ As Prof. Archibald Cox informed the Senate Subcommittee,
"fvloters in a minority group may have exactly the same opport,un-
ities for participation as other voters r €ven though no members
of the group are elected to ofEice. The minority may not, vote as
a bloc. The minority may vote as a bloc but make its influence
fett in the selection of non-minority candidates Eor election, in
framing their programs and policies, and in support of one or
more candidates against their opponents." I Senate Hearings L42B
(PreparedStatement).Indeed,inthel982prffie
Districts 23 and 36, whites did not field a candidate for each of
the open positions. Page notes supra. That fact reinforces
Ehe conclusion that blacks have not been Cenied equal access to
the electoral process in these districts by virtue of t-he multj.-
member plan, because the make up oE che candidate slate is icselE
a reflection of and a response to the voting strength of the var-
ious conslituencies in a district.



//L//
2L

ty, constituting 16.81 of the registered voters, has not been able to

elect a black Senator in the 1980s, a black candidate prevailed
/

throughout the period 1975-I980.-

This experience cannot be reconciled with the district court's

holding that the challenged plan results in vote dilution.-' Indeed,

the'district court never articulated a standard under which "resu1ts"

such as these could support a conclusion that the multi-member elec-

toral system in t,hese disEricts -- which is the procedure under chal-

lenge -- is "not equally oPen to participation" by black voters. The

court only stated -- wiEhout reference to actual results in any of the

challenged districts that "the success that, has been achieved by

black candidates to date" is "too minimal in total number and too re-

cent" to support a finding that a black candidate's race is no longer.
/

"a significant adverse factor" (J.S. App. 37a-38a).- However, the

_/ Appellees seek to minimize the significance oE Ehis elector-
af success on the ground (tlot. to Dis. 26-27) that the L982 elec-
tion year was "obviously aberrationalr' -- attributing this con-
clusion to the district court. [Iowever, the district court's
words have been taken out of context. The Court's finding (J.S.
App. 37a (footnote omitted) ) $ras as f oIlows:

There are intimations from recent historyr pdrticularly
from Ehe L982 elections, that a more substantial
breakt.hrough of Success could be imminent but there
$rere enough obviously aberrational aspects Present in the
most recent elections to make that a matter oE sheer
speculat ion .

In a footnote, the courE observed that both parties had offered
evidence to establish either thaE the L982 elections presaged a
"breakthrough" or that they were "aberrational." The court
stated that its "finding" in text (quoted above) "reflects our
weighing of these conflicting inferences" (id. at 37a n.27). It
is [frus inaccurate Eor appellees to assert ffiat the district
court adopted their view that Ehe 1982 elections should be dis-
regarded as "aberrational." In fact, the most that can be said
is that the court rejected the opposing view that the 1982
election results should be deemed evidence that black candidates
would achieve even greater success in the "imrninent" fut,ure.

_/ It is inappropriate to conclude, as some courts have done,
that t,he state must prove that the existence of past discrimina-
tion has not reduced the current potential electoral success oE
black candidates. McMiIlan v. Escambia Coug[, 748 P.2d L037,
1045 (5th Cir. 1984 ) . TiraE appffiues t.he governing
legal standard, improperly shifts Ehe burden of proof, and re-
quires proven and cont,inued minority electoral success to avoid
Section 2 liability. Neither Congress nor Senator Dole had any
such requirement in mind. Pages supra, and pages infra.
( cont inued )



//L//
22

election of representatives in numbers as great as or greater than the

approximate black proportion of the.populationr 3s in House Districts

2L,23t and 39, is surely not "minimal." And in House District 35 and

Senate District 22, while Ehe results admiEtedly faII shorE of a stan-

dard of "proportional representationrr -- which Congress rejected as

the governing lega1 criterion -- minority candidates either are or
/

have been successful and plainly are comPeEitive.-' In fact, the

district court itself concluded that "Itihirty-Eive years after the

/ Appellees claim (Mot. to Dis.27,41; SUPP. Br. 10 & n.9)
EEat Ehe district court'S disparagement of black electoral
Success in the challenged districts is supported by language in
the the Senate majority rePort, a document whichr w€ have argued,
cannot be taken as determinative on aI1 counEs. In any event,
the report sinrply notes (Senate Report 29 n.I15) that the elec-
tion oE a rrg"*ir minority candidates should not be deemed conclu-
sive because iE would enable election officials to evade amended
Section 2 by engineering the election of "a 'safe' minority can-
didate." the cise cit,ed by the rePort to illustrate this caveat,
Zimmer, arose in in a context, "where the multi-member system was
ffia, despite historic policy and a state statute Eorbidding
it, in reaction to a dramatic voter registration drive directed
at blacks, who, although comprising 58 Per cent of the parish's
population, had not been permiEted to vote untiL L962" (Black
Volers, 565 F.2d at 4). Given Ehese circumstancesr 3o "abrupt
ch-ange in policy -- which coincided wit.h increased black voter
regiitraEion" (WaIlace, 515 P.2d at 531), Zimmer declined to
tr6at recent bleffictoral success as disflosTEive.

Appellees have failed to prove thaE black electoral success
in theie districts is attributable to tlth hour efforts by the
General Assembly to engineer the election of "safe" minority can-
didates to thwart a Section 2 claim. Indeed, the district court
made no mention of any evidence that would tend Eo suPPort such a
claim. Moreover, the disErict court noted that "in recent yearS
there has been a measurable increase in the ability and willing-
ness of black citizens to participate in the state's political
processes and in its governmenE at state and local IeveIS" (J.S.
App. 47a), The district court discounted this increased partici-
paLion because of its Einding oE racial polarization (id. at
Zla), buE that Einding is fliwed in seveial resPects (see pages
infra).

_/ The court's reasoning is also flawed in another respect.
elthough the district court made factual findings on a district-
by-district basis, it drew its ultimate IegaI inferences regard-
ing racial bloc voting and the effect on minority electoral op-
portunities on the basis of "It]he overall results achieved to
date at all leveIs oE elective office" (J.S. App. 37a). It. is
only on such a basis that Ehe courE could have held that black
electoral success is "minimaI" in a district such as lIouse
District 39, where the 25.L? black minority has, with substantial
white support, elected 40? of the at-Iarge rePresentatives. To
invalidate a specific district on the basis of generalized
statewide results aE "all levels of elective office" is a clear
legal errror. See White v. Regester, 4L2 U.S. at 769 (requiring
an "intensely locat-EffiaisafEhe el'ectoral scheme) .



//L//
23

first successful candidacies for public office by black citizens in

Ehis cenEury, it has now become possible for black citizens Eo be

elected Eo office at all levels of state government in North Carolina"

(J.s. App. 37a).

The districE court also erred by discountinq the proven minority

electoral success on the ground t,hat it was "too recent in relation to

the long history of complete denial of any elective opportunities" to

support the conclusion thaE "a black candidate's race is no longer a

significant adverse factor" (J.S. App. 37a-38a). ThaE ruling is over-

broad. To the extent that lhe court held that past discrimination

cannot be overcome by providing minorities with contemporary access to

the process, that ruling is in error. The lower court decisions prior

to City of Mobile repeatedly emphasized that the key question is not

whether there was past discrimination but whether thaE discrimination

prevents minoriEies from currentlv participating in the poIiEical pro-

cess. See, €.9., t{endrix, 559 F.2d at L270; David, 553 F'.2d at 930;

Bradas, 508 F.2d at 1fl2; Zimmer, 485 F.2d at I305; accord, McCartv v.
/

Henderson, 7 49 E .2d 1134, 1137 (sth Cir. 1984 ) .-' llistori.cal discrim-

ination that has resulted in a current lower minority regisEration

rate, for instancer ds the district court Eound to be the case here

(J:S. App. ZZa-26a a n.22), is an entirely approPriate consideration
/

under amended Section 2.-' But past discrimination that does not deny

minorities current access t.o the political Process cannot support a

/violation of the Act.-' And to the extent thaE the district court

/ As Senator IIefIin stated, "It]he DoIe compromise has a now
aFplication but allows for a consideration of yesterday factors
ai-we11 as present day good Eaith efforts to remedy p?st mist,akes
if the yesterday factors touch on Ehe new result." 128 Cong.
Rec. 55964 (daiIy ed. June L'7, f982).

_/ This history may have had an effect in House District 36 and
SEnate District 22, given the electoral results in those dis-
tricts; but, viewed in combination with other Eactors, it appears
not to have shut blacks ouE of the electoral process there ( see
pages infra). Given the fact thaE minorities have been elected
to-oEfiffi House Districts 2L, 23, and 39 in numbers at least
as great as would be expected under a single-member sysEem, the
hisiorical discrimination found by the district court does not
appear to have affected the electoral opportunities that black
voters enjoy in those districts.
( cont i nued )



//L//
24

held that past discrimination persists in the form of racial bloc

voting, the court relied upon an erroneous definition of that concept,

as we will later exPlain.

Congress could not have expressed more clearly its intention not

to invalidate multimember disEricting plans where minorities have had

an equal opportunity to participate in the electoral process, even if

minority candidates did not win a proportionate share oE Ehe =".8".-/
Congress adopted Senator DoIe's compromise precisely t,o ensure that

Section 2 would guarantee minoriEy voters access to the electoral pro-

cess not ensure victories for minority candidates -- as the Senate

floor debate plainly demonstrates. Pages supra. See also Rogers,

458 U.S. at 515; Whitcomb,4O3 U.S. at 158-I59 (mu1ti-member disEricts
/

challenged for "their winner-take-aI1 aspects" I . The pre-Citv of

I,tobile decisions of this and other courEs bear out thaE mulEimember

districts are not unlawful where, ss here, minority candidaEes are not

effectively shut out of the electoral process. The closest analogy to

this case is pove v. Moore, supra, in which the court oE appeals up-

/ The district court thus plainly erred by relying (J.S. App.
29a) upon inoperative numbered seat and anti-single thot voting
requirements of state Iaw. As the courE itself noted (id. aE 23-
24i, Ehose requirements !,rere invalidated more than a deEEde ago
(Dunston v. Scottr 335 F. SuPP.206 (E.D.N.C. L972)), and there
iililasis ffiended Section 2 (or logic) Eor concluding that
these no!.r-repealed legaI measureS could have any current effect
on the multimember system. See pages supra (discussing Sen.
Dole's compromise) .

_/ The district court plainly misconstrued the significance of
C6ngress' rejection of Ehe proportional representation standard.
The court dismissed the "proportional representation" disclaimer
in Section 2(b), 42 U.S.C. 1973b, as meaning no more than that
the Eact that blacks have not been elected in numbers ProPortion-
al to their percentage of the Population "does not alone estab-
Iish that vote dilution has resulted" (J.S. ApP. l5a & n.13
{emphasis added)). As discussed above (pages ), the disclaimer
rras expressly drafted to avoid any such narrow interpretation.
In effect, the district court has interpreted the Act as imposing
a "proportional representation plus" standard, rather than an
"equaI opportunity" standard, as Congress intended.

/ As Armand Derfner explained to the Senate SubcomrniEtee ( I
SEnatq Eeqling_g.803): "the at-large elections thaL I * * * have
@narethoseinwniihtheresu1tofthoseat-Iarge
elections is basically to shut out the minority voters. It is
not a question of wheEher they will get more or less or whether
the majority voters will get more or less. It is a question of
some versus noEhing."



//L//
25

held the validity of an at-Iarge system under which the 40t black mi-

nority elected one member to an eighE-member city council. Indeed, in

many cases prior Eo City of l.lobile involving at-Iarge voting systems

where the aggregate of factors was unquesEionably less favorable Eo

minority voters than in this case -- most particularly, where no black

citizen had ever been elected under the system -- challenges to the

voting plans $rere nonetheless held to be insuf f icient. See , *-,

B1ack Voters v. McDonouqhr suPtEl; Ilendrix v. Joseph, suprai David v.

Garrison, Supra; McGilI v. Gadsden County Comm'n, 535 F.2d 277 (5th

Cir. f97E). And it is significant that the Senate majority and other

supporters of amended Section 2 pointed to these cases including

Dove v. Moore -- as indicaEions of the way in which Lhe new Provision

would operate. Seer €.9., Senate Report 33; I Senate Hearings 795-

796, 797 (Eestimony of Armand Derfner); id. at L70l-L702 (colloquy

beEween Sen. !,taEhias and Assistant Attorney General Reynolds regarding

Dove). Accordinglyr given the proven electoral success that black

candidates have had under the mult.imember system, :he district court

erred by concluding that use of that system "results" in a denial of

"equal access" to the electoral process for minorities.

2. The district court correct,Iy held (J.S. App. 15a) that proof

of racial bloc voting is the "Iinchpin" of a successful vote dilution

claim. See Senate Report 33.-' llowever, t,he district court adopted a

_/ As the Court explained in Whitgomb (403 U.S. aE 153), where
"Ehe Eailure of the gnetto to hEvE-TEgIslative seats in propor-
tion Eo its population emerges more as a Eunction of losing elec-
tions than oi 6uilt-in bias-againsE poor Negroes * * * [t]he vot-
ing power oE ghetlo residents may have been 'cancelled out' * * *
Uu! Lnis seems a mere euphenj-sm for political defeat at the
polls." See also United-Jewish Orgs. v. Cargv, 430 U:S. L44, 155
i.ZA (L977 ) (plura@voting does not follow
racial lines, the white Ior black] voter has little reason to
complain that the percentage of nonwhites Ior whites] in his dis-
trict has been increased" ) .

It is erroneous, however, to conclude that proof of racial
bloc voting atop numerical underrepresentation together are suf-
ficient to establish a violation of amended Section 2, as some
courts have said. See McMillan, 748 F.2d at 1043; United States
v. Marenqo Countv Comm'ffif-F.2d 1546, 1565 ( f f th-ffiTm-a) .

Sup ated that proof of more than numerical
underrepresentation and racial bloc voting is essenEial to es-
tablish a Section 2 violation. See f Serlate_E-earinqs.8t9-820
( cont i nued )



rt

' //L//
26

definition of racj.al bloc voting under which racial polarization is
,'substanLively significanE" or "severe" whenever "the results of the

individual election would have been different depending upon whether

it had been held among only the white voters or only the black voters

in the election" (J.S. App. 39a-40a (footnote omitted)). This means

that even a minor degree of racial bloc voEing would be sufficient to

make out a violation, regardless of whether it actually results in

black electoral defeats. For instance, in a two-person election where

there is a small white voting rnajority, iE the white candidate re-

ceives 51t of the vote in the white community and 49? of Ehe vote in

the black community, and the black candidate receives the reverse, the

district court would hold thaE the comrnunity is severelv racially pol-

arized. That definition is unacceptable because "'there wiIl almost

always be a raw correlation with race in any Eailing candidacy of a

minority whose racial or ethnic aroup is tal small percentage of the

total voting population"'(Lee County Branch of NAACP v. Citv of Ope-

Iika,748 F.2d L473, 1482 n.L5 (Ilth Cir. 1984) (quoting Jones, 734

F.2d at 234 (lligginbotham, J., specially concurring)); see Terrazas v.

CIements, 581 F. Supp. 1329, l35t-1352 (N.D. Tex. I984) (three-judge

court) (Eest is whether "such bloc voting as may exist" operates as as

to "persistently defeat Iminority] candidat€s"); accord, $gamon v.
/

Upham, slip op. lO n.4.-' Under the district court's definiEion, vir-

(Prepared SLatement of Armand Derfner) (emphasis in original)
("amended section 2, like White v. Regester, aPPlies only in that
small category of places where there is no functioning system of
politics Eor minority voters, where there is already Severe ra-
cial division, and where it is simply impossible for minority
voters to have any significant opportunity under the election
system as it is"); accordr €.g.r id. at 287 (Memorandum of Ralph
G. Neas, Exec. Dir., LeadersElp Conf. on Civil Rights); id. at
564 (testimony of Joaquin G. Avila, Assoc. Gen. Counsel, I'IALDEF);
id. at 1184 (testimony oE Prank Parker, Dir., Voting Rights Pro-
JEct, Lawyers' Comm. for CiviI Rights Under Law).

_/ In most vote dilution cases, a plaintifE can establish a
piima facie case of racial bloc voting by using a statistical
analysis oE voting paEterns that compares the race of a candidate
with the race of the voters. A defendant can then introduce iEs
own study, which takes other factors into account, to rebut a
plaintiff's prima facie case. For a discussion, in a different
context, of the type of statistical studies that can be used, see
McCleskey v. Zant, 580 F. Supp. 338,352-379 (N.D. Ga. 1984),
aff'd, 153 F.2d 877 (IIth Cir. 1985) (en banc). ResorE to such
( cont i nued )



//L// -27

Eually any electoral district in the country might be deemed to suffer
,,substantively significant" racial bloc voting. Congress believed

that the contrary $ras Erue, however. See Senate Report 33 (in "most

communities" minority candidaEes "receive substantial support from

white voters").-/
If white voters are willing to cross racial Iines in sufficient

numbers that "minorit,y candidates tdol not lose elections solely be-

cause of their race" (Rogerst 458 U.S. at 623), then it is largely

irrelevant wheEher the black candidate would have eton even if the

election "had been held among only the white voters" (J.S. APp. 40a).

In Ehat case, racially polarized voting, to the extent that it exists,

is not "the overriding criterion in voting" (Dove, 539 F'.2d at 1155).

It was firmly settled prior to t982 t,hat no person had Ehe right to be

represented by members of any particular group to which he belongs or

to participate in an electoral process that maximizes his chances of

success, either as a vot,er or a candidate. Rather, the principle re-

peatedly endorsed was the right to participate in an electoral process

to vote, first and foremost, but also to join a political party, to

participate in its af fairs, to become a candidat.e (Whitcomb, 403 U.S.

analyses has been approved. As Judges lligginboEham and Wisdom
have cogently observed, "race or national origin may mask a host
of othei explanatory variables" including "explanatory factors *
* * as intuitively obvious as campaign expenditures, party iden-
tificaEion, incomi, media use meaSured by cost, religion' name,
identification, or distance that a candidate lived from a partic-
ular precinct" (@es, 730 F.2d at 235 (Higginbotham,- J., spec-
ially- concur.ing ) Gg_gr-unty. | 7 48 F.2d at L482 (Wisdom, J. ) ) .

_/ 
-See I Senate Hearings 821 (emphasis added) (!!epared Stace-

mEntofarmffiSection2,ofcourse,wilIapp1yon1y
in those places where there is already an extraordiLarv amoul! oE

Iracial] aivision"). Other witnesses also described racial bloc
voting in less absolute terms than the district court. See id.
at 306 (Prepared Statement of ViIma S. Martinez, President, 

-MALDEF) (emphasis added) ("'It is a situation where, when candi-
dates of different races are running for the same office, the
voters wiII bv and large vote for the candidate of their ov'/n

race' " ) ( citaffiamfttea) ; id. at 543 ( testimony of Prof . Susan
A. Macl'lanus ) (emphasis addedl-( " racial polarization )t * * occurS
when citizens of one racial group uniformly vote for one candi-
date and citizens of another raciaf group uniformly vote for
another. * * * * [t]he basic purpose of the test Ifor calculating
racial polarization I is Eo determine whether race is t-he_-P.Irneg
and exclusive determinant of individual voting decisi6ns across
EImffi any given community" ) .



//L//
28

at I49-I50) -- in which there is no "built-in bias" against the opPor-
/

tuniEy Eo participate (id. at f53).-' Amended Section 2 reaffirmed

these principles. see senate Report 23-24, 30' rt thus follows that

where "blacks and whites alike have rejected race as the overriding

criterion in voting" (Dove, 539 F.2d at I155-I155), then, since no

such "buiIt-in bias" exists, "minority candidates Iwi1I] noE lose

elections solely because of their race" (Rogers , 458 U.S. at 628), and

the poliEical process is, by definition, "equalIy open to participa-

tion" by minorities (White, 4L2 U.S. at 766; see Whitcomb, 403 U.S. at

153). In other words, the relevant inquiry is not simply into the

existence of bloc voting by race; the court must assess the effec'E of

racial polarization on the opportunity for blacks to participate in

the political process. Only where the impact of racial bloc voting in

combination wiEh Ehe challenged procedure here, multi-member dis-

tricts -- deprives black voters oE equal access Eo the electoral Pro-

cess is Section 2 offended.

3. Given the electoral success thaE black candidaEes have at-

tained with substantial whit,e support in llouse Districts 2L,23, and

39 success equal to or greater than could be expected under single-

member districEs iE is difficult to imagine any basis for invali-

dating these districts under Sect i,on Z.-/ And while black candidates

_/ See Citv of Mobile, 446 U.S. at 75-80 (plurality.gPinion);
ig.aE86@concurringin-Ehejudgment);!9:at-llln.Z (l'larshall, J., dissenting); Unit,ed Jewish Orqs. , 430 U.S. at
155-I58 (plurality opinion); Beei, 425 U.S. at f36 n.8; lrihitcomb,
403 u.s. it 149-rB0;-Taylor ul--{Sj<"llh"n , 4gg F.2d 893, !E-51ffi
Cir. L974) (wisdom, .r. r,'' T,trn-g! ". tlCKg-tlnen, 490 F'.2d i9l, L97
(5th Cir. I973) (Brown, C.J. ).

/ In Eouse Districts 2L, 23, and 39, where black candidates
hlve been elected in numbers at least as great as would be ex-
pected under a single-member plan, black candidates have received
substantial white support. In House District 2L, the black can-
didate in the 1978 primary (BIue) received 2J-Z of the white vote,
but he later became increased his share of the white vote in f980
to 3It in the primary and 442 in the general election and was
elected; in L982 he again increased his share to, respectively,
39t and 45? oE the white vote in the primary and general election
and was reelected. J.S. App. 44a. In House District 23, a black
Republican ran in the 1978 general election and received more
whiEe votes (17?) than black votes (5?). The black candidate was
unopposed in the 1978 general election, and in the f980 primary
and general election. Nonetheless, he received f6? and 372 of
(continued)



//L//
29

have been less successiul in House District 35 and Senate District 22,

the district cour.t ' s Eindings as to those districts warrant, no difEer-

ent result. They show that black candidates have received substanEial
'/

white voting support.-' In one case,.a black candidate ran unoPposed
i

for a delegate geat, which is significant because the make-up of the

candidate slate is indicative of the voting strength of a district's

constituencies. Page note supra. It is also significantr 3s the

court's opinion reveals, thaE there are no present barriers Eo minor-

ity registrationr party affiliation r oE .candidacy; no anti-single shot

voting or equivalent requirement has been employed; candidate slating

has not been dominated by whiEe voters; and there is no majority vote

requirement in general elections. Some or all of these factors were

usually present in pre-Citv of MoFite cases in which multi-member dis-

tricts lrere invalidated or were expressed during Congress' considera-

tion of Ehe L982 amendments as a justification for their enactment.

See, €.e.r White | 4L2 U.S. at. 623-624; Wall4qq v. House, 5I5 F.2d 619,
'1'

the white vote in the 1978 primary and general election, 492 of
Ehe white vote in the 1980 general election, and 372 and 43t of
the vote in the L982 prirnary and general election, respectively.
J..S. App. 43a-44a. In E{ouse District 39, the two black rePresen-
tdtivei- elected in L982 received 25* and 35t of the white vote in
the primary, and 422 and 462 of the white vote in the general
e1eclion. One of those represenEatives had previously received
40t and 32* of the white vote in Ehe 1980 primary and general
election, respectively. In L978t a black republican candidate
received more white votes (33?) than black votes (25?) in the
general election. J.S. App. 42a-43a,

/ In House District 36, the black representative elected in
Lg82 received 50t of the white vote in the primary and 422 in the
general election. Another, unsuccessful black candidate in that
race received 39t and 292 of the white vote in the primary and
general election, respectively. This e\ras an increase f rom I980,
when a different black candidate received 22* and 282 of the
white vote in the primary and general election, respect.ively. In
Senate District 22, the black member of the four-person delega-
tion from f975-I980 received 472 of the white votes in the 1978
primary and 4It in the general election. A second black candi-
date (PoIk) ran in f982 and garnered 322 of the white voLe in the
primary and 33t in t,he general election. J.S. App. 42a. l'lore-
over, while blacks form only 3I? of the population oE the city of
Charlotte, a black Democratic candidate was elected mayor with
38* of the white vote against a white Republican. J.S. App. 35a.
This figure is significant because it shows that in a head-co-
head contest more than one-third of the white voters were willing
to vote for a black candidate in Charlotte. Blacks also held
28.61 of the district and L6.7? of the at-large city council
seats from L977-I981. J.S. App. 34a.



623-624 (sth Cir. L975), vacated and remanded on other grounds, 425

U.S. 947 (L976) i Zimmer | 485 F.2d at 1305-1305; cf . 9'Ihitcomb v.

Chavis, Suprai Black Voters, 565 F.2d aE 6; Bradas, 508 F.2d at 1112;

Senate Report I0 n.22; House Report 3I n.105. The absence of such

barriers to participaEion in the electoral process, coupled with the

findings made by the court regarding the success that black candidates

have had and the white voting support that these candidates have re-

ceived in House District 35 and SenaEe District 22, supports Ehe con-

clusion that the multi-member sysEem has not deprived blacks of the

opportunity to participate in the electoral process in these two dis-
/

cr].cES.

CONCLUSION

The judgment of the district court should be reversed.

Respectfully submitted.

CHARLES FRIED
Actinq Solicitor General

WM. BRADFORD REYNOLDS
Assistant Attornev General

CHARLES J. COOPER
Deputv Assistant Attornev General

PAUL J. LARKIN, JR.
Assistant to the Solicitor General

JULY 1985

/ Should the CourE nonetheless conclude that there is an
iisufficient basis in the record for finding no violation of
amended Section 2 with respect to these two districts, then,
given the district court's reliance uPon an incorrect legal
standard, the appropriate disposj.tion would be to remand the case
to the district court for further proceedings under the correct
legal standard. See PuIlman-standard v. Swint, 456 U.S. 273,
2sl-2s2 (1982).