Motion for Leave to File Brief of Senators and Representatives as Amici Curiae; Brief of Senators and Representatives as Amici Curiae

    No t3-1958

lx Tsn

$rryrure @rrrmt sf. W 3fitrileb FHrl;z
OcrosER Tnnra l9E5

L.rcv H. TgonxaunG, et aL,
Appellants,

v.

Rer.pu GsrcIJ$ et aL,
' Appelbes.

ON APPEAL TROM TIIE
T.INTIED STATES DISTRICT COIJRT

FOR TIIE EASTERN DISTRICT OF NORfiI CAROLINA

MOTION FOR LEA\TE TO FIIJ AT{D BRIEF OF

SENATORS DEI{MS DcCONCINI' ROBERT J' DOLE
CI{ARIJS E" GRASSIJY, EDWARD M. KENNEDY,

CIIARIJS McC MATHIIAS' JR- AI\ID
HOWARD Nd. METZENBAUM'

AI\D REPRESENTATIYES DON EDWARDS' I{AMILTON
nsH, JR., PETER W. RODINO' JR- Al{D

F. JAIVTES SENSENBRET{NER
AS AMICI CURI/IE IN SUPPORT OF AI'PEr'r nES

Wer.r-r, J. Rocxrrn
(Counsel of Record)
Menr P. Gencerr
BensAR.r L. AilxrsLL

Anxoro & Ponrnn
1200 New HamPshire Ave., N.W.
Washington, D.C. 20036
(202) 872-6789

AttornaS for Amici Cuiae



No. 83-195t

Ix THe

$uprernc 6.ourt of tlp $nite] fitatlx
Ocronen Trnu, 1985

Lrcv H. TnonNnunc, el dl',
APPellants,

v.

RerPn GINGLTS, e, aL,
APPellees.

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

MOTION OF SENATORS DENNIS DeCONCINI'

ROBERT J. DOLE, CHARLES E. GRASSLEY'

EDWARD M. KENNEDY, CHARLES McC' MATHIAS' JR''

AND HOWARD M. METZENBAUM, AI\D

REPRESENTATIVES DON EDWARDS, HAMTLTON

FISH, JR., PETER W. RODiNO, JR" AND

F. JAMES SENSENBRENNER

FOR LEAVE TO FILE AMICUS CURIAE BRIEF ON

BEHALF OF APPELLEES

Amici Curiae are members o[ the United States Congress

*ho *"re principal co-sponsors and su-pport"! 9!-"T-":*-d
Section 2 oithe voting iigl"t Act' 42 U'S'C' $ 1973 ( 1982)'

Pursuant to Supreme" Co-urt Rule 36'3' amici respectfully

..quitii"r"" ,o hte the accompanying amicus brief''

. Appcllea heve consented to amici's parricipetion in this case' Appel-

lants, however, heve denicd conscnt'



As members of the United States Senate and House of
Representatives and the respective Judiciary committees of the
Senate and House, and as key co-sponsors of amended section
2' amici are vitally inrerested in ensuring that the voting Rights
A"t is properly interpreted. The position raken by the ioricitor
General and appellants in rhis case is inconsisient with the
literal provisions of Section 2. Moreovei, it discounts the
importance of the senate Report, the key source of regisrative
history in rhis case. we ane ooncerned borh with prestrving the
integrity of congressional committee Reporrs 

-and 
ensriring

that Secrion 2 of the. Voting Rights Act is preserved as an
efrective mechanism to ensure that people of all races will be
accorded an equal opporrunity to participare in the potitical
pnocesscs of this oountry and to elecr representatives of their
choice.

The acrompanying brief undertakes a detaitjd review of
the language and legislative history of amended sec-tion 2 of the
voting Rights Acr, issues that the parties will not address in rhe
same detail- Thus, amici believe thar the perspective rhey bring
to the issues in this case will materialty aid the Court in
reaching ia decision.

Members of the House of Representatives and Senate have
participated as amici curiae in numerous cases before this coun
involving issues affecting the legislative branch, both by morion,
c.9., Unitcd States v. Hclstoski, 442 U.S. 477 ( 1979), and
Gonsent, c.g., National Organization for Womcn v. Idaho, 455
u.s. 9t8 ( te82).

For the foregoing reasons, amici respectfully request leave
to file the accompanying amicus brief.

Respectfully su bmitted,

Werrrn J. Rocrrm
(Counsel of Record)
Menr P. Grncrx
BrRnme L. ArwsLL

Anxorp & Ponrsn
1200 New Hampshire Ave., N.W.
Washington, D.C. 20(J36
Telephone: <2O2) 872-6789

Attornqs for Amici Curiae

Dated: August 30, 1985



No. tll968

Ix Tun

$uprerne CIcurt rt L\, U"itun fitntas

Ocronsn Trnr, 1985

Lrcv H. Tnonxnunc, el al.,
Appellants,

v.

Rrrpu GrNcLEs, e, aL,
Appellees.

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

BRIEF OF SENATORS DENNIS DeCONCINI, ROBERT J.
DOLq CHARLES E. GRASSLEY, EDWARD M. KEN.
NEDY, CHARLES McC. MATHIAS, JR., 11p HOWARD
M. METZENBAUM, AND REPRESENTATIVES DON ED.
WARDS, IIAMILTON FISH, JR., PETER W. RODINO,
JR., ATYD F. JAMES SENSENBRENNER AS AMICI

CURIAE IN SUPPORT OF APPELLEES



i

TABLE OF CONTENTS

STATEMENT OF INTEREST
SUMMARY OF ARCUMENT ............

I. TO ASSUME COMPLIANCE WITH SEC.
TION 2 UPON EVIDENCE OF SOME ELEC.
TORAL SUCCESS BY MEMBERS OF A MI.
NORITY GROUP VIOLATES THE LTTERAL
REQUIREMENTS OF THAT PROVISION;
EVIbENCE OF SOME ELECTORAL SUC.
CESS MUST BE VIEWED A,S PART OF THE
..TOTALITY OF CIRCUMSTANCES'' TO BE
coNSIDERED ............

II. THE LEGISLATIVE HISTORY OF THE 1982

AMENDMENTS AND THE PRE-BOLDEN
CASE LAW CONCLUSIVELY DEMON-
STRATE THAT A VIOLATION OF SECTTON
2 MAY BE FOUND ALTHOUGH MEMBERS
OF A MINORITY GROUP HAVE EX.
PERIENCED LIMITED ELECTORAL SUC.
CESS
A. The Legislative History: The Majority

Statement in the Senate Report Specifi-
cally Provides that Some MinogtV -G1oup
Eteaoral Success Does Not Preclude a

Section 2 Claim if Other Circumstances
Evidencc a Lack of Equal Acccss

B. The Majority Statement in the Senate Re-
port Is an Accurate Statement of the Intent
of Coirgress with Regard to the 1982
Amendments ..--...--....--
l. The Majority Statement in the Sen-

ate Report Plainlv Reflects the Intent
and Efect of the Legislation

2. As a Matter of Law, the MajoritY
Statement in the Senate RePort Is
Entitled to Great ResPect..-..

III. THE DISTRICT COURT APPROPRIATELY
LOOKED TO THE TOTALTTY OF CIRCUM.
STANCES TNCLUDING THE EVIDENCE OF
SOME BLACK ELECTORAL SUCCESS TO
DETERMTNE WHETHER BLACKS HAD
EQUAL OPPORTUNITY TO PARTICIPATE
IN THE ELECTORAL SYSTEM; THE
COURT DID NOT REQUIRE PROPOR-
TIONAL REPRESENTATION...

Prlc

I
2
5

l4

t5

20

23
30



ll

TABI,E OF AUTHORITIES

Crsrs
Beer v. Ilnited States, 374 F- Supp. 363 (D.D'C'

1974), revd on other grounds,425 U.S. 130 ( 1976)

Chandlerv. Roudebush;425 U.S.840 ( 1976)

City Council of Chicago v. Ketchum, t05.S. Ct.2673
( le85)......

City of Mobilc v. Boldcn, 446 U.S. 55 ( 1980)

Garcia v. llnited Statcs, 

-U.S..-.-.-..--- 

105 S- Ct'
47e ( 1984)

Gingles v. Edmisten, 590 F. Supp. 345 (E.D'N'C'
r984).........

Graves v. Barnes, 343 F. Supp- 7O4 (W'D' Tex'
1972)......... .-...-..-r--....-.-..'.--.-

Graves v. Barnes,378 F. Supp. 641 (lV'D' Tex'
r974).........

Grovc Ctty Cotlegc v. Bell, --U.S.- 104 S' Ct'
r2r I ( 1984).........

Kirlcsq v. Board of Supenisors, 554 F.2d 139 (5th
Cir.i, cert. dcnicd,434 U.S.968 ( 1977)

Mainc v. Thiboutot, 448 U.S- I ( l98O), quottng TVA
v. Hill,437 U.S. 153 ( 1978)

McCain v. Lybrand, No. 74-281 (D.S'C' April 17'

1980)
McMiltan v. Escambia County,748 F.2d 1037 ( I lth

Cir. 1984).

Monterey Coal v. Fedcral Ming-*[e!v-* !I:"!!h
Revicw Commission,743F.2d 589 (7th Cir' 1984) '

National Association of Greeting Card Publishcrs v'' -iitia 
States Postal'Service,462 U.S. 810 ( 1983)"

Nalional Organizalion for Women v' Idaho,455 U'S'
er8 ( le82)

North Haven Bd. of Education v' Bell,456 U'S' 512

( le82 ).................
Soerlins v. tlntted States, 515 F'2d 465 (3d Cir'
' 1975), cert. denied,462 U.S. 9t9 ( 1976)

tlnited Slates v. International lJnion of Automobile
Workers.352 U.S. 567 ( 1957)

Itl

Prt

Pe:c Ilnited Slates v. Dallas County Comm'n, 739 F-2d
ls29 ( I lth Cir. 1984)

Ilntted Statesv. Helstoski,442 U.S. 477 (1979)

United States v. O'Brien,39l U.S. 367 ( 1968 )

llnited Stales v. Marengo County Comm'n,731 F.2d
1546 ( I lth Cir. ), ceil. denied, 

-U.S...-.--.---- 

105
S. Ct. 375 ( 1984)

Velasquez v. City of Abilene, 775 F.2d l0l7 ( Sth Cir.
r 984).........

Whitcombv- Chavis,4O3 U.S. 914 ( l97l )...........-.......
white v. Regester,4l2 U.S. 755 (1973 ).......................

Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir.
1973), af'd sub nom. Easl Canoll Parish School
Bd. v. Marshall,424 U.S. 636 ( 1976).......

Zuberv. Allen,396 U.S. 168 ( 1969)

Srnrurrs
Voting Rights Act Amendments of 1982, Pub. L. No.

97-205

42 U.S. E 1973

MrsesttrNrous
Voting Rtghts Act: Ilearings Before thc Subcomm. on

the Constitution of the Senate Comm. on the ludi'
ciary, Yol. lI, 97th Cong., 2d Sess. ( 1982) ...............

Voting Rights Act: Hearings Beforc the Subcomm. on
the Constitution of the Senate Comm. on the tudi-
ciary, Yol. I, 97th Cong., 2d Sess. ( 1982).......

Report of the Senate Judiciary Committee on
S. 1992, S. Rep. No. 417, 97th Cong., 2d Sess.
( re82)

Report of the House Committee on the Judiciary on
H.R. 3112, H.R. Rep. No. 227,97th Cong., lst
Sess. ( l98l )

128 Cong. Rec. 57139 ( daily ed. June I 8, 1982 ) .........

128 Cong. Rec. 57091-92 (June 18, 1982)...................

128 Cong. Rec. 57095 (daily ed. June 18, 1982).........

20,25,26

2

20

passim

7,lo,2o
lt

passim

passim

20

passim

2

1 5,16

il

passim

l3
20,21

l4
passim

20

passim

t2

t3

22

13,23

7

l2

20,24,
25,26

2t

2l

2

22

2l

20

9

l4
t9
t8



lv

Prlc

l9

.19
l9

l9

l9
t9
t9
l9
t8
l8
l9

17,18

l9
t7

No. Elt968

Ix Tsr
128 Cong. Rec. 57095-96 (June 18, 1982)"'

!28 Cong. Rec. 56995 (daily cd' June l7' 1982)""""'

128 Cong. Rec. 56991, 56993 (daily ed' June 17'

r 982 ).........
128 Cong. Rec. 56960-62' 56993 (daily ed' June l7'

I 982 ) ...........:.......

128 Cong. Rec. S694t -'aa'Slgel (daily ed' June l7'
r e82 )..........................'..

128 Cong. Rec. 6939-40 (daity ed' June l7' 1982)"""

128 Cong. Rec. 36930-34 (daily ed' June l7' 1982) "'
128 Cong. Rec. 569t9-21 (daily ed' June l7' 1982) "'
128 Cong. Rec. 5678t (daily ed' June 15, 1982)""""'

128 Cong. Rec. 56780 (dailyed' June 15, 1982)""""'

128 Cong. Rec. 56646-48 (daity ed' June l0' 1982) "'
128 Cong. Rec. 56553 (dailyed' June 9, 1982)"""""'

128 Cong. Rec. H384t (daily ed' June 23' 1982)""""

t28 Cong. Rec. H3840-4t (daily ed' June 23' 1982) "

Frryr* 6.ourl of \, JHniteil fitxtts
Ocronen TSRI,{, 1985

Lrcv H. Tnorxnunc, et al.,
Appellants,

v.

Rerrn GINGLEs, et al.,
Appellees.

ON APPEAL FROM THE
UNITED STATES DISTRTCT COURT

FOR THE EASTERN DISTRTCT OF NORTH CAROLINA

BRIEF OF SENATORS DENNTS DeCONCINI, ROBERT J'
DOLE, CHARLES E" GRASSLEY, EDWARD M- KEN-
NEDY, CHARLES McC. MATHIAS, JR-, AND HOWARD
M. METZENBAUM, AND REPRESENTATIVES DON ED.
WARDS, HAMILTON FISH, JR., PETER W. R.ODTNO'

JR. AI{D F. JAMES SENSENBRENNER AS AMICI
CURIAE TN SUPPORT OF APPELLEES

Senators Dennis DeConcini, Robert J. Dole, Charles E-

Grassley, Edward M. Kennedy, Charles McC. Mathias, Jr., and

Howard M. Metzenbaum, and Representatives Don Edwards,

Hamitton Fish, Jr., Peter W. Rodino, Jr-, and F. James

Sensenbrenner hereby appear as amici curiae puniuant to the

motion filed herewith.

STATEMENT OF INTEREST

This case presents an important issue of interpreting the

Voting Rights Act Amendments of 1982, Pub. L. No. 97-205, as



2

,t 
"y 

p"a"in to Section 2 of the Voting Rights Act'-42 U'S'C'

E f gZi. As members of the United States House of Representa-

tives and Senate, amici are vitally interested in this case, which

could determine whether Section 2 is to be preserved as- an

effective mechanism to ensure that people of all races will- be

accorded an equal opportunity to participate in the political

processes of this 
"ouni.y 

and in the election of represenratives

of rn.i, choicc. This case also raises an important question of

thc weight to be given congressional committee reports by

which the intent underlying a atetute is expressed'

MembersoftheHouseofRepresentativ$andSenatehave
participatedasamicicuriaeinnumerouscasesbeforethisCourt
irr"ot"ing issues affecting the legislative branch, both by motion'

c.8., Uitcd Stutes v.-Hcktoski, 442 U'S' 477 ( t979)' and

*rrs.n,, c.g-, National Organization for Womcn v' Idaho' 455

u.s. 9t8 ( 1982).

because oi their race. Gingles v. Edmisten, 590 F. Supp- 345'

iii t r.o.N.C. lgg4). Appellants and the Solicitor Generat, on

the other hand, ascribing deftnitive weight to a single factor'

".guu 
,1 ", "given the proven electoral success that black

"iiaia",", 
have had under the multimember system," no

,iotr,io, of Seaion 2 can be established. Brief for the United

States as Amicus Curiae 28'

The Solicitor General and appellants seemingly ask this

court to rule that evidence of recent, and limited' electoral

success should be preclusive of a Section 2 claim' though

evidence of other facton overwhelmingly may compel a finding

ihat blacks are denied an equal opportunity to panicipate in the

political proae$. This position is contrary to the expr€ss terms

of S"aion 2, which requires a comprehensive and realistic

inalysis of voting rights "t"i.t, 
and it could raise an artiffcial

barrier ro legitimatoll"i.t of denial of voting rights which in

,or" ,*'"y, would pose as significant an impediment to the

enforc,emlnt of Seiion 2 as the specific intent rule of City of

Mobite v. Bolden,446 U.S. 55 ( t980), rejected by Congress in

t982.

'fo assume that some electoral success by some members of

a minority group, no matter how limited or incidental such

suctess ,"y b., conclusively evidences an equal opportunity for

membersofthatgroup'confusestheoccasionalsuc:cessofblack
candidates with the statutory guarantee of an equal opportunity

forblackcitizenstoparticipateinthepoliticalprocessandto
etect candidates of their choicc. Experience, as documented by

the pre-Bolden case law, proves that the systematic denial of

full and equal voting righis to blacks may be accompanied by

the sporadi" success oi .ornu blacks in primary or general

elections. As the courts have uniformly recognized' the vice of

the dehial of equal voting rights to a minority group is not

obviared by such token or incidental successes of its members'

Most importantly, the position advocated by the Solicitor

General and appellants is inconsistent with the literal language

of Section Z, ana was expressly rejected by Congress when it

considered the 1982 amendments' as is made clear in the

SUMMARY OF ARGUMENT

As the authors and principal proponents of the 1982

amendments to Section 2, our primary ooncern in this case is to

ensure that Section 2 is interpreted and applied in a manner

crnsistent with congress'intent. The solicitor General and the

"pp"ni"" 
contend that the district coutt's ffnding that the

"ir"tt.ng.a 
multimember legislative districts violeted Section 2

or-ir,. 
"voting 

Rights Acl ..cannot be reconciled" with the

evidence of some rectnt electoral suctess by black candidates in

those districts. Brief for the United States as Amicus Curiae 24'

28.

The three-judge district @urt, using the "totality of circum-

stancts" analysis made relevant by Section 2' found blacks

weredeniedanequalopportunitytoparticipateinthepolitical
p-*r, in the 

"tr"itengJdistricts 
on the basis of a wide variety

of facrors. It considired the evidence o[ electoral success at

hrg;i in its opinion, and found such succcsses to be "too

miiimal in total numbers" and of "too rectnt" vintage to

;;il; a finding thrtt black candidates were not disadvantaged



Report of the Senate Judiciary Committee on S- 1992, S' Rep'

No. Ct7, 97th Cong., 2d iess. ( 1982) (hereinafter the "senate

Report"). This Report cannot be treated as the vicw of "one

faction in the c\rntroversy," as argued in the amicus brief of the

Solicitor General ( Brief for the United States as Amicus Curiae

8 n.12), in the face of clear evidencc that the Report acrcurately

express$ the intent of congress generally, and importantly of
the authors of the compromise legislation that wgs reported by

the senate Judiciary Committee and enacted, essentially un-

changed, into law.

If this Court were to discount the importancc of the views

expressed in the senate Report, it would have significance

beyond this particular case. A majority of the Judici-ary

Committee sought to pmvide, in the Senate Report, a detailed

statement of the purpose and effect of the 1982 amendments.

That statement was relied upon by members of the Senate in

approving the legislation, and by members of the House in

a"ceptinjthe Senate bill as consistent with the House position.

This court should not cut the 1982 amendments free from their

legislative history, and adopt an interpretation of that legisla-

tion inconsistent with the view of the congressional majority.

To do so would undermine ffrmly established principles of
interpretation of Acs of Congress, and sow confusion in the

lowei courts thet are so ollen called upon to determine the

legislative intent of federal statutes.

The Voting Rights Act Amendments of 1982 were in-

tended to reinstate fair and effective standards for enforcing the

rights of minority citizens so as to provide. full and equal

pirticipation in rhis nation's political and electoral processes. In

ieAz, bottgress had before it an extensive record showing that

much had been accpmplished towards this end since the voting

Nghts Act was adopted in 1965, but that much more remained

to be done. In construing and applying Section 2, the Court

should be mindful of Congress' remedial goal to overcome the

various impedimens to political participation by blacks end

other minoritY grouPs.

)

ARGUIVIENT

I. TO ASSUME COMPLIAI{CE WITH SECTION 2

UPON EVTDENCE OF SOME ELECTORAL SUCCESS
BY MEMBERS OF A MINORTTY GROUP VTOLATES
THE LITERAL REQUTREMENTS OF THAT PROVI.
StoN; EV|DENCE oF SOME ELECTORAL SUCCESS
MUST BE VIEWED AS PART OF THE 'TOTALITY
OF CIRCUMSTAI{CES' TO BE CONS,IDERED

The evidence of some electoral success by blacks in the

challenged districts in North Carolina is not dispositive of a

Section 2 claim, as is evident from the plain language of the
statute. t Section 2 requires that claims brought thereunder be

analyzed on the basis of the "totality of circumstances" present

t We male no effort herein to statc the facrs ar issue in thig cese in a

complctc menner. thou3h se do note the limited nature of black electoral
3ucoesl er prescnted in the disria court's frndingr:

Housc Districr No. 36 (Mecklenburg County) and Senatc District No. 22

(MecllenburS and Cebamrs Counties)-Only two black candidatcs have
*on clectionr in thir ccntury. One bleck won r seat in the eight membcr
Housc delegation in 1982 after thir litigrtion ras ftled ( running sirhout white

opposition in thc Democratic primary). end onc scrved in the four-member
Scrrate dclegation l'rom 1975-t980. Thir limited succesl is offset by frequent
electoral defeats. tn House Disrria J6, seven black eandidates havc tried and

failed to win scats from 1965-1982, and in Senate Distria 22 black candidates

failed ln bidc for sear in l98O and 1982. Bleckr aomprise approilmately 25

pcrclnt of thc population in these Districtr. 590 F. Supp. at 157, 365.

House Disria No. 39 ( part of Forsyth County)-The f,rst black lo scrve

as one of the five-member delegation served from 1975-1978. He resigned in
1978 and his appointed 3uooe3sor ran for rcelection in 1978 but was defeated:

a black candidate war alrc defeeted in 1980. ln 1982, after this lirigation was

filed, tso blackr sere eleaed to the Housc. This pattern of election. followed
by defeats, mirrorc elecrions for rhe Board of County Commissioners, in which
the only black electcd was defeated in her first reelection bid in 1980, and for
eleaions to thc Board of Education, in which the ftrst black eleaed was

dcfeated in hir bidr for reeleaion in 1978 and 1980. Blacks comprise 25.1

pcrcut of the County'r populetion. 590 F. Supp. at 357,366.

House Distria No. 23 (Durham County)-Since 1973, one black has

been eteaed to thc ihree-member delegation. [Ie iaccd no white opposition

(lootnotc continucs)



6

in the challenged district. The focus is on whether there is equal

acoess to the pKrcess. The extent of past black electoral succcss

is only one relevant circrrmstance-

The controlling provision is Section 2(b)' which states:

"A viotation of subsection (a) is established if, based

on the totality of circumstances' it is shown that the

political proc$ses leading to nomination or election

in the State or political suMivision are not equally

opcn to particlpation by members of a class of

"ition, 
protectee by subsection (a) of this se'ction in

that its members have tess opportunity than other

members of the electorate to participate in the politi-

cal process and to elect representatives of their

choicc. The extent to which members of a protected

class have been elected to officc in the State or

political subdivision is one circumstancc which may

Le 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."

Thisexpressstatutoryprovisionclariflesthatthe..extentto
which ..-b"o of a protected class have been elected to officc

in the state or political subdivision is one circ-umstancc which

may be consideied .". . ." obviously, other factors which com-

frir" tt " 
..totality of circumstances" surrounding the political

p.o".r, must also be -considered, as they were by the district

court in ftnding a violation of Section 2 here. sae section III.

(fatnotc coarlnucdl

in the primery in l9t0 or 1982 rnd no substential opposidon ln thc general

elccrion eirhcr of thosc yean. Blaci6 constitutc 36.3 pcrcent of the popularion

of the county. ,90 F. Supp. ar 337,3,66,370'71'

Hou* Dirrrict No. 2l (Wetc County)-The irst rime in this ccntury e

blacl candidate succ'esslbtlyran for rhe six-member dclegatbn gas in 1980'

That ramc candidate had been deferted in 1978' Blackr comprise 2l'8

p.r".n, ofrhe popularion ofthc county' 59O F' Supp' at 357' 366' 371'

House Distria No. 8 (Wilson. Edgecomb and Nash Counries)-No

bleck was ever clected to scnve from this four-membcr disria although it is

39.5 perccnr black in population' 590 F' Supp' at 357' 366' 371'

7

infra. Eleooral success is a relevant criterion, but not the sole

oi dominant concern, as posited Fy ttre Solicitor General'z

As will be shown below, the primary reason Congress

adopted Section 2(b), which originally was offered as a

ctarifying amendment by Senator Dole, was to ensure that the

focus of the Section 2 "results" standard would be on whether

there was equal opportunity to participate in the electoral

process.

The statutory language necessarily contemplates that a

Section 2 violation may be proven despite some minority

candidate etectoral success. The focus on the "extent" of
rhinority group electoral success contemplates gradations of
success-from token or incidental victories to electoral domina-

tion-and makes clear that a violation of Section 2 may be

proven in cases where some members of the group have been

'elected to office, but the group nevertheless has been denied

a full-scate equal opportunity to participate in the political

process.3

Because Section 2 is plain on its face, it should not be

necessary to look further to the legislative history. Maine v'

Thiboutot, zl48 U.S. l, 6 n.4 ( 1980), quoting TVA v. HiA,437

e The Solicitor General 3ccms to sug8est ther black electoral success in

rouSh proportion to the bleck proponion of the population should be

prcclusive of r Scaion 2 claim. Brief for the Unircd States as Amicus Curiae

2+25. At mosr, this rrgument eppears rctevant only to House District No. 23

(Durham county). and, in any evenlr is plainly inconsistenr with congress'

clearly stared intent that SeAion 2 c{aimc should nor depend upon the race of
eleded officials. Section 2 sceks to dcf,cct erccssive ooncero with the recial or

erhnic identity of individual offictholderr and, instead, to focw attcntion

r,herc it propcrly belonSs: on the existenct of an equal opportunity for

members of the minority group to pcrticipetc in the political proccsr end to

elect representativcs of thcir choicc.
t Consistent gith this clear statutory mandate, and the le3islative hirtory

discurscd belos, thc lowcr courtr which have considered this issue all heve

crpressly rdeaed the posirion espouscd by rhe solicitor General and appel-

lants. llnttcd Statcs v. Marcngo County Comm'n,731 F.2d 1546' l57l-72
(llrh Cir.), ccrl. dcntcd, 

-U.S.- 

105 S. Ct- 375 (1984) ('lt is

equally clear that the election of one or a small number of minority electcd

ofra"it will not compet a finding of no dilurion-"1; Vclasqucz t' City of
lbilenc, 125 F .2d lO I 7, 1022 ( 5rh Cir. 1984 ).



8

tr.S. 153, 184 n.29 ( l9?8). Nevertheiess' we wili examine that

t ir,o.y because it conftrms, in the most unequivocal terms' the

intent o[ Congress that the extent of minority group electoral

;;;* be analyzed as a part of the totality of circumstln:es

from which to measure the openness of the challenged political

;;ri;. to minority group participation' Further' that history

jrovides 
"n 

i-po.t",tt indication of the manner in which such

liaryris should be undertaken, and supports the analysis and

conclusions of the court below'

It. THE LEGISI.ATIVE HISTORY OF THE I9t2

AMENDMENTS AND TTIE PF(E-BOLDEN CASE LAW

CONCLUSIYELY DEMONSTRATE THAT A VIOLA'

TION OF SE,CTION 2 MAV BE FOUND ALTHOUGH

MEMBERS OF A MINORITY GROUP HAVE EX-

PERIENCED LIMTTED ELECTORAL SUCCESS

A- The l,cglsletlve Hlstory: The Meforlty Stetement in

the Senete iteport Speclfterlly Provldes thet Some

Mlnorlty Group Electoral Sucee*l Does Nol Pre-

cludc I Seetlon 2 CIelm lf Other Clreumstances

Evldcncc r l,eck of Equal Aceess

The legislative history of the 1982 amendmenr shows very

clearly that Congress Aia not intend that limited electoral

success by a minority would foreclose a Section 2 claim' This

intent is most pfainii stated in the Senate Report' but a similar

intent also is erioeii frgm the House deliberations, rhe individ-

ual views of members of the Senate Judiciary Committee

"pp"na.a 
to the S.n"t" Report' and ttrc floor debates in the

Senate.

The 1982 amendments originated in the House' which

initially determinJitt"t tttt Bolden intent 1s3t wos unworkable'

and that it was i."u*r.y to evaluate voting rights ctaims

brought urrdei Section 2 on the basis of "['ln aggregate of

objeclive 1lactors." a Report of the House Committee on the

luiiciary on H.R. 3112, H.R. Rep' No' 227,97th Cong'' lst

sess. 36 ( lggl ) (hereinafter rhe ..House Report"). As would

the Senarc, the House rejected the position that any single

factor shoutd be ddterminative of a section 2 claim. The House

Reportnotedthat..Ia|lloftheseIdescribedIfactorsneednot
be proved to establish a Section 2 violation'" Id' at 30' Thus'

while the House bill did not by its terms require the consid-

eration of the ..totality of circumstances," that plainly was the

intent of the House.

TheSenaterefinedtheHousebill,andmadeexplicitthe
inrent that section 2 claims be addressed on the basis of the
..totality of circumstanccs." This refinement came about be-

cause of a compromise authored by Senator Dole and others'

the import of which will be addressed in detail below' Of

immediate signiftcance, though, is the fact that the Senate

Report expttining this compromise expressly dealt with the

issue of thl significancc of minority group electoral success to

Section 2 ctaims. Indeed, the intent of the Committee with

regard to the handling of this factor was expressed more than

onc€.

The Senate Report includes, as one "typical factor" to

consider in determining whether a violation has been estab-

lished under Section 2' "the extent to which memberc of the

minority group have been elected to public office in the

jurisdiciion." Senate Report at 29. Additional important

.o-r"nt".y wirh regard to this factor is then provided:

"The fact that no members o[ a minority grbup have

been elected to office over an extended period of time

. Relevant facrorc, drawn from the.court's decision in lahirc v- Rcgestcr.

112 U.S. ?55 ( lg73), and itl proSeny included "a hittory of discrimination

afecring thc right to vote, racialty polariry [rict voting which impedes the

election oppo.runitia. of minority group mcmbers, discriminatory elemcnts of

rne eteaorit system such as at-large elections, a mafority vole requiremcnt' a

prohibidon on rinlle-rhot votinS, and numbcred poss which enhancc the

lppo.ur,y for diidmination. end discriminatory slating or the failure of

minorities to.in p..ty nomination." House Report 3O'



is probative. However, the eiection of a few rninority
candidates does not 'necessarily foreclose the possi-
bility of dilution of the black vote,'in violation of this
section. Zimmer 485 F.2d at 1307. lf it did, the
possibility exists that the majority citizens might
evade the section e.g., by manipulating the election of
a'safe'minority candidate. 'Were we to hold that a
minority candidate's suocess at the polls is conclusive
proof of a minority group's acoess to the political
prooess, we would merely be inviting'attempts to
cireumvent the Constitution. lnstead we shall
continue to require an independent consideration of
the record.' Ibid." Senate Report at 29 n.l 15. ( Ref-
erences are to Zimmer v. McKeithen, 485 F.2d 1297
(5th Cir. 19731, af'd sub nom- East Canoll Paish
School Bd. v. Marshall,424 U.S. 636 ( 1976).)

No clearer statement of the intent of the Committee with regard
to this issue seems possible. See Vclasqucz v. City of Abilene,
725 F.zd 10t7, 1022 (5th Cir. 1984) ("In the Senate Report
... it was specifically noted,that the mere election of a few

minority candidates was not sufficient to bar a finding of voting
dilution under the rcsults test-").t

Funher, this. analysis, and its reliance on Zimmer v-

McKeithen, 485 F.2d at 1307, is consistent with the express

view of the Committee that "Itlhe'resultsl standard is meant to
restore the pre-Mobile legal standards which governed cases

r The Solicitor Generel 3u88esr that this stetcmcnt indicete3 that minor-

ity group cteaorel 3nc!e!$ gill not dcfeat a Section 2 clelm only if it can be

shosn that guc'h cucce$ lrer the result of the majority "engineering the

eteaion of e 'safc' minority cendidate." Brief for rhe United States as Amlcus

Curiec 24 n.19. Amid, sho rere integrally involved in wridng the Senate

R.po.q vies thlr itatcmcnl et firoviding an exemple which illustrates why

somc 3uooesi should not bl disposirive, not e legal rule deftning the only
circumstance where it ir not. Of coursc, there ere numcrous other rcesonr why

rome electorel succcss miSht not evidence rn equelity of opportunity to

perricipate ln rhe eleaonl proccss. For eremple, as in the instent casc. the

ability to singte-rhot votc in multimembcr dirtrias mey producc rome black

officcholders, but at thc erpcn3e of denying blacks thc oplrcrtunity to vote for

a full slarc of candidates. .Sec 590 F. Supp. at 369-

lt

challenging election sysrems or practices as an illegal <iitution of
ther minoriry vote. Specifically, subseciion ( b ) embodies the
test laid down by the Supreme Court in |lthite lv. Regester,4lZ

' U.S. 755 (1973)f ." Senate Report at27.a This reliance on pre_
Bolden case law is important, for it was firmly esrablished under
that case law rhat a voring rights violation could be established
even though members of rhe plaintiff minoriry group had
experienced some electoral success within the challenged sys-
tem.

The Committee was acutely aware of this precedent.T
Indeed, in the case set by Congress as the polestar of Section 2
analysis- White v. Regester-a voring righa denial was found
by this Court despire limited black and Hispanic elecroral
sucoess in the challenged districts in Dallas and Bexar counties
in Texas. Senate Report a|22.8

c rhcre can be no doubt that this war rhe vierr of a congressionar
mejority as r,ell. Thus. in his additional viewr, g6n11er Dote remarked rhet
"rhe new subscc-tion [2(b)l codilles the lcgal srandard anicutarcd in lNhitev.
Regctcr, a srandard which was ftnt epplied by rhe Suprcmc Coun in
Jlrhltcomb v. chovis, and which was subsequentty appried in somc 23 Federal
courts of Appeals dccisions." scnare Report at 194. scnaror crassley, in his
supplemenral views. similarly remarked that "the new language of secrion 2 is
the rest utilizcd by rhe Suprcme Courr in Whire." Id. ar 197.
. r The Senate'Repon srares:

"Whtt has been the judicial track record under the .resulb rest?
That record reccived inrensive scrutiny during the Committee

rhcarings. Thc Commirtee reviewed not only the Suprcme Coun
decisionr in Whitccomb [sicl and Whitc, bnt alrc some 23, reporred vote dilution cases ln which federal couns of appcals,
prior to 1978, followed Witc.,,Scnatc Rcport ar 12.

A Iist and analyrir of rhcse 2l cascs eppce. in Voting Righrs Act:
llcorings Bcfore the subcomm. on thc constrtutroa ol thc scnotc coim. of thc
tudtciary, vol. l,97th cong..2d Sess. l216-26 ( l9g2) (hereinafter..t senare
Hearings") (appendir ro,prepared itetement of Frank R. parker, director,
voting Rights Project, Lasyen' commitree for civil Righrs under the Law;.

t rhe senate Rcport citer rhc ponion of this court's opinion in witc v.
Rcgcster *hcrein ir 

''as observed thar "[slince Reconct]uction, only rwo
bleck candidater ltom Dalles county hrd bcen clecred ro the Texas Hourc of
Representatives, end rhesc t*o were thc onry bracrs ever slared by the Dallas
committee for Responsible Governmcnt. shitc-dominated slating group."

(lootnotc continuesl



t')

The Committee also expressly relied upon the:-eilYfi tf
the Fifth Circuit Court of App"ais in Zimmer v' McKeithen'

which it described as "ttli,. seminal cpurt of appeals

;"iril...;.b;q*nttv .jita upon in the vast majoritv of

nearly two dozen rep"n"a dilution c-a1es"' Senate Report al23'

ln Zimmer, the Cirluit Court found inconclusive the fact that

three black candidaies had won sears in the challenged at-large

distria since the inttii"ti"n of the suit' The Court reasoned that

while the appellee u,gea that "the attendant success of three

black candidates, aicta"rca a finding that the at-large scheme did

not in fact dilute tne [tacr vote..-.. twle canno-t en{orse the

view that the success of black candidates at the polls necessarily

forecloses tt " 
porriUitity of anution of the black vote'" 485 F'2d

at 1307.

Similarly' the Committee considered with approval a re-

c€nt case involving Edgeffeld County' South Carolina' where

prior to Bolden" "i,ing?ghts 
violation had been found' despite

limited black electoral-sukss' beceuse " 1 b llack participation

in EdgefielA couniv i"' Utt" Ttfly- tokenism and even this

has been on " 
,../ri"tl-t"'t"'" Micain v' Lybrand' No' 74-

(f@tnole conttnued,

4t2 U.S. at16G67. Thc dedslon of the dirtria eourt indicatcs thet the fint of

thesc cendidatc3 ren ii 
-icec' 

and rhar they- rere scletted by the white-

dominered Den"s comm;,;; i". Responsibre Governmeor rrirhour rhc

participation of rt'o Ut""i"ommunity' GmYcs v' Boracs' 343 F' Supp' 704'

726 (w.D. to,. tstii' ofi i;;'; aad rad ta pad sub iom' whitc v'

Rryestct,4l2 U.S. ?55 (1973)'

A simitar point wnr made with respcct ro Hispanic succlsl in' Bcrer

County, where " [o tnl, n"" Ut"i*t-Americans sincc I 880 have served in the

Teras kgisle.," rro't'stti' County' Ot thesc' only two sere from the

barrio area.- arz u.i.'",iii-6;. Tir" disrria rcourt indicetcd that four of

thcse ive were etccted rlter 196O' Gratcs v' Bamcs' 343 F' Supp' et117'

Thc findin;r lo Whttc v' Rcgestcr 3cem unremarkable until it is realizcd

thar in the instent ce'" tft" t"t" Zr a b"" shorring of black-eleaoral suc'ccss

in ett of rhe disrrictri;;;;-*o" (erccpt House Disrria No' 23)' is being

rclied upon ", -"auti'" evidencc that no votin3 ri3hts violarion has

occurred.

28i, slip op. at 18 (D.S.C' April 17, !980), quoted at Senate

Report 26.e

There is absolutely no indication in the legislative history

that any member of either House of congress thought that

evidence of minority group etectoral success should be pre-

clusive of a section 2 claim. The solicitor General and

appellants recite at some length numerous statements to the

eibct that Section 2 was not meant to require proportional

representadon. This point is made on ihe face of the statute,

and there is no question that Section 2 does not require that

minority group representation be, at a minimum, equat to the

groqp's p€rcentage of the population' However, the finding of
I "iot"rion 

of Section 2 in the face of some minority group

electoral success does not depend upon a rule requiring

proportional representation. Rather, as the reasoning of the

court below illustrates, the finding of.a violation depends upon

the assessment of the "totality of circumstances" to determine

whether members of the minority group have been denied an

equal opportunity to participate in the political process and to

r ln addition. there are othet pr;c-Boldcn decisions of similar import nor

specillcally addressed in the Scnate Report or in the ltoor debeter. so, in one

of thc 23 appcllate decisions studicd by the Committee' the FiIIh Circuit

coun. rejealng e reapponionment plan ordered by the districr court because

ir lelt rhc.chances for black 3ucress unlikely, noted its continuing adherencl to

the zlmmcr rule .'we add the cavear that the eleaion of black candidates

docs not rutomarically mcen that black voring strength is not minimized or

canccled oot.., Klrkcyv. Boord ol supcrtisors, S5.l F.2d 139, 149 n.2l (5th

Cit.l, cm. dcntcd.434 U.S. 968 ( 1977).

ThisrulcofcommonSenscgasrcspeaedbythcdistriacourts.For
crample, in Gravcs v. Dorncs,378 F. Supp' 64t, 659-61 (W'D' Tex' 1974)'

the court concluded rhat rhe reccnt election of Hispanics to the Texas House

of Represcntativet end to the school board did not frustrate a voting rights

claim.

Similarly,adistricrcourtrefusedinBcerv.IJniledStates,!11F.Supp.
163 ( D.D.C. I 9711, rct'd on othcr grounds,425 U'S' 130 ( 1976)' to deem the

ciry of New Orleans ro be entirtcd to pre-clearancc under Seaion 5 despite a

sho*ing rhar four blacks rectnrly had won eleaive officc in thb municipality.

Arhoughthesection5rctroSressionstenderddifiersfromrhcSection2
srandard. Sccr is relevant to the case at hand in that the Court recognized that

minority candidate sucle3s can be attributeblc to fectors other than equel

acce$ to the elecioral pnoc!3s by minority group members'



l4

elect representatives of their choice' The disproportionaiity of

minority group representation is, at most' one factor in the

analysis.

B. The Meiorlty Stetement ln ihe Senrte Report Is en

Aceurate Stetement of the tntent of Congreis rlth
Regerd tq the 1982 Amendments

The Solicitor General appears to believe that Congress

intended to adopt in 1982, the rule rejected in Zimmer' v'

McKeithen' drawing from certain statements by amicus Senator

Dole and others tiat Section 2 was not intended to require

proportional representation, an inference that a Section 2 claim

is foreclosed wherever limited electoral success is shown' Sae

Brief for the United States as Amicus Curiae I l-14'to

In making this argument, the Solicitor General also argues'

", 
t o aiA in lrrother-r"c€nt appeal to this Court regarding a

Section 2 claim, City Councit if'Chicago v' Ketchum' 105 S' Ct'

2671(1985), that tire Sen"t' R"po'is not determinative of the

intent of Congress, and attichts greeter signiffcance to the

individual views ti "ii"i 
Senators Dole and Grassley' and

Senator Hatch. r' gti.f for the United States as Amicus Curiae'

roThesolicltorGencretelrccirestheRcportofthesubcommitteeonthe
Consritution to tt o S"n"i" Comminee on thc Judiciery on S' 1992'9?th Cong''

2d Sect. ( l9s2) ("Sr;;iirec Repotr")' The Subcommitree Reporr does

not ref,ed, nor doer i;;;; to rcf,ei' lhe viewr of the Congres'cional

majority who favored oJ.-^riing the Boldcn inrenr test and rcinstatinS a

rcsults test. Id. at 2o'[i'ei tt'e tiic the Subcomminee Reporr was written' a

3-2 majority of rhe Scnatc Subcommirtee supported exisdng law' a positi'on

squarety rejecred UV tfto n'li C"mmirtee and by rhe Senare as a whole' The

Chairmen of thc Subco-tirt*-S"nator O*n Harch-opposed the Dole

compromise "nA 
tot"i for the bill uldmetely enasted orrly with great

relucrancc,.onrinuing-Io,i"to-on,il rhe frncl-vore on rhe bill his view "that

rhesc amendm"no p-.1r. ii or"o 
" 

desrnrctivc rransformation in the voting

Rishrs Act. . . .- l28 a;;;. R* s7139-(dailv ed' tune 18' 1982)' of the four

orher membcn of tht Sukmmittec: senaror Srrom Thurmond opposcd the

ffi]ffi.pltimtil"rot charles Gresslev supported thc compromisc' and'

as noted U.lo*' .tptt*ii ""*atO 
to the majoriry view of the Senate Report:

and Senarors O"nnit--drconcini and Patrick Leahy objeaed to the con-

c{usionr of th' Subommirtce Report
t t As nored i. ,ft.'p..*if rg ?oo,noto, while Senator Harch did ukimately

vote ror the bill, t 
" 

opio"a thJ Dole compromise in Commirree and voiced

opposirion to ir on rhe f,oor of the Senate

lln.ZT.Theseeffiortsarcmisguidedonbothfactualandlegal
grounds.

l. The Meforlty Statemenl ln the Sennte Report

Plelnly Refleels ttre Intent end Efrect of the

. Leglsletlon

To understand the significance of the majority view stated

in the Senate Report, 
"na 

of the individual views of amici

Senators Dole and Grassley, it is necessary to understand- the

nature and the genesis of what is aptly termed the Dole

compromise. The purpose of the compromise was to clarify

*hai standard should be used under the results test to ensure

that the amended Section 2 would not be interpreted by courts

to require proportional represenration' The bill originally

adopted by the House-H.R. 3l l2-attempted to accomplish

this wirh a disclaimer that "[tlhe fact that members of a

minority group have not been elected in numbers equal to the

grorp'r-ploportion of the population shall not' in and of itself'

ionriirui. a violation of this section." In addition, the stated

purpose o[ the House bill was to reinstate the standards of pre-
'Boiden 

case law, which was understood by the House not to

require proportional representation' House Report at 29-30'

TheHousebillattractedimmediatesupportintheSenate.
senators Mathias and Kennedy introduced the House bill as

S.lgg2,andenlistedthesupportofapproximatelytwo-thirdsof
the members of the Senate as co-sponsors'r2 Still' certain

members of the Senate, and, in particutar Senator Dole' had

lingering doubts as to whether the language of the House bill

,nas suffi"ient to foreclose the interpretation of the Voting

Rights Act as requiring proportional representation' To ame-

re lnitialty s. 1992 had 6l co-sponsors, and by the time the senate

ludiciary Commirtee passed upon the Dole compromise' this number.had

gro*n io 66. Thus, as Senator Dole himself recognized in Committee

Jelibetarions, ..wirhour any change the House bill would have passed."

Erecutive Session of the senate Judiciary commitree, May '1, 1982, reported

at Voting Rights Act: Hearings bcfore the Subcomm' on rhc Constitution of the

srnorcboim. on the ludiiary, Vol. ll,97th Cong',2d Sess' 57 (1982)

( hereinafter "lI Senate Hearings").



l6

liorate this concern, Senator Dole-in conjunction with Sena-

tors Grassley, Kennedy and Mathias' among otherc 13-

p."p"."d that Section Z(t) Ue added to pick up the-standard

liun"irt a by this Court in White v' Regester' In addition' the

disclaimer included in the House bill was strengthened to state

*p."ttfy that "nothing in this section establishes a right to have

members of a protectJd class elected in numbers equal to their

proportion of the PoPulation'" .

As Senator Dole himself was careful to emphasize'.the

compromise was cpnsistent with the Section 2 hmendments

p"ir.a by the House.r' As Senator Joseph Biden explained in

the Committee debate over the Dole compromise' "What it

Joes 1isl, it clarifies what everyone intended to be the situation

from the outset." Executive iession of the Senate Judiciary

Co-.itt"., May 4, 1982, reported at Il Senate Hearings 68' In

introducing S. 1992 on tile hoor, Senator Mathias also termed

the Commiaee actions on Section 2 "clarifying amendme^ntIsl"

which "are clnsistent with the basic thrust of S' 1992 as

introduced and are helpful in clarifying the basic m-eanirrg of

the propos"d "rnind,tnt'" 
128 Cong' Rec' 56942' 56944

(daily ed. June 17. 1982)'15

13 Senaror Dole expteined that he "along wirh Iamicil S-t1":1o DeCon-

cini, Grassley, r.nnJ-y. and Meuenb:1t-:nd itn"tot Mathias ' ' ' had

worked out a compno.i* on [Seaion 2l'" Id' at 58'

rr Thur. Scnator Dole erplained rhe proposed compromisc as follows:

"ITthc compromisc retains the results standerds of thc

Mathiac/Kcn*ii tUf' Hosever' se also feet that the legisladon

should bc ,r.eig5tn.o wirh addidonel language delineating

whar lcgal *,nitti trt"uld apply under thc resuttr test and

clarifying thar ir is nol a mendate for proportitl"t t"l:-t:":.tL"jl
Thur, our compromisc edds e new subsc'c{ion to 3cction zi l,rucn

codified t"ng.,"g; from the t973 Suprcme Court decision of

Whitc v. RrginJ' Execttive Sesrion of the Senate'Judiciary

Committee. May 4, 1982, reportcd at ll Scnate Hearings' 50'

Sce also lJnitcd Statcs v' Marcngo County Comm'n' 1ll F ' 2d 1546' 1565 n'30

f ii,rt ir..l. "ra. 
drntrd' _--U's' lo5 s' ct' 375 ( 1984)'

ti A similar undentanding of the Senate bill was expressed on thc lloor

of the Housc bv R.;;t:;;*';e Don Edwards' Chairman of the Subcom-

miuee on civil and tonrii,u,i"""l Righ* o[ the House committee on the

JudicirrY:
(footnotc conlinucs,

l7

The authors of the compromise-in particular amici Sena-

tors Dole and Grassley-did not perceive it as inconsistent with

the majority view of the proposed legislation. Indeed' in

additional comments to the Senate Report, both amici Senators

Dole and Grassley clearly stared ihat they thought the majority

statement to be accurate. Thus, Senator Dole prefaced his

additional views wirh rhe comment that "[tlhe Committee

Report is an accurate statement of the intent of S' 1992, as

reported by the Committee." t0 Senate Report at 193' And

Senator Grassley pref,aced his views with the cautionary remark

that "I express my views not to take issue with the body of the

Report."senate Report at 196. So that there could be no doubt

as to his position, he later added that "I concur with the

interpreration of this action in the committee Report." senate

Report at 199. Moreover, the individual views expressed by

both these senarors were in complete accord with the majority

slatement. t 7

(footnotc continued)

"Basicatly. the amendments to H.R. 3l12 would " ' clarify the

basic inrenr of the secrion 2 amendment adopted previously by

the House.

"These memberc [ the rponsors of the Senate compromise I were

ablc to mainthin the basic integrity and intent of the House-

passed bill while ar the rame time finding language which more

effecrively addrcsses the conclrn that the results test would lead

to proportional representation in every jurisdiaion throughout

the country and which delineates more specifically the legal

standard to be used under section 2.* 128 Cong. Rec. H384O-

3841 (daily ed. June 23. 1982).
rc As Senator Dole stated in his additional views. his primary purpose in

ollering the compromise lre3 to allay fears about proportional representation

and thereby secure the overwhelming bipartisan suppon he thought the bill
deserved. For this rceson, his commenu primarily were concerned with

stressing the intenr of the Commirtee thal the resufts test and the standard of
lVhitc v. Regestcr chould not be construed to require proponional represenla-

rion. Senate Reporr at l9l-94. This in no sal suggesls that he disagreed with

lhe views expressed in the majority report. for that repon also w€nt lo great

pains to cxplain rhat neither the resuts test nor the standard of white v.

Regcster implied a guarantee of proportional representrtion. senate Report

ar 30-l I . A disctaimer to rhe same efed appcars, of course, on the l'ace of thc

siatule.
|, Senntor Dole objecred ro effons by opponents to redefine the intent of

rhe 1982 amendmenrs on the floor of.the senate. saa 128 Cong. Rec. 56551

(daily ed. lune 9. 1982).



r8

Both proponents and opponents of S' 1992 recognize<i in

the floor debates the signincance of the majority statement in

the Committee Report as an explanation of the bill's purpose'

i., *tfv on in the debates Senator Kennedy noted that:

"Those provisions, and the ihterpretation of those

provisions, are spelled out as clearly and' I think' as

well as any committee report that I have seen in a

long time in this bodY'

"I have spent a gbod deal of time personally on this

report, "nA 
t think it is a superb commentary on

eractly what this legislation is about'

"ln short, what this legislative report points 
"-'.t.it

who won and who lost on this issue' There should be

no confusion for future generations as to what the

intention of the language o'as for those who carried

the day." t28 Cong' Rec' 56553 (daily ed' June 9'

lg82).t6

rr Scnator Kcnnedy rcemphasizcd this polnt a week latcn

"If there ir any question rbout rhe meening of the langu^age' we

ur3e rhc Judges ro '"ta 
the report for its meaning or to listcn to

thosclholerttheprincipel3PonsoBoftheptoposll.notto
il;;.. nrro .rought ageinrt the proposel and who have an

cndrely air".ent to-i""pt"or 'tt"t a Voting Rights Act should bc'"

128 Con3. Rec. 56780 (daily ed' June 15' 1982)'

An admonition which Scnator Dole heartily echoed:

"t ioin the Scnator from Massachusetts in the hopc rhat when the

judges look ar tftt fogiti"ti'" history' they will look at thosc who

supporred "ig;J; and enrhusiasdcally thc so-called com-

Promise."

128 Cong. Rcc. 56781 (dailv ed' June l5' l9t2)'

Senaror Kcnnedy later rcmarked to the samc ctrect:

"Fortunerely, I witl not hevc to be exhaustive beceuse the Senate

ludiciary Commirtec Report' presented by Senator Mathies' wi3

an ercrltent .t*.i,i."-.i,hc intended meaning and operation of

the bill."
128 Cong. Rec' 57095 (dailv ed' June 18' 1982)'

t9

Thus, the proponents of the legislation, incir-rding Senators

Dole,re Grassley,2o DeConcini,z! Mathias,22 and Kennedy,23

repeatedly pointed their colleagues to the majority statement of
the Senate Report for an explanation of the legislation. Con-

versely, opponents of the compromise,2l or proponents of
particular amendments,2s looked to the majority statement of
the Senate Report as a basis for their individual criticisms of the

bill. At no point in the debates did any Senator claim that the

majority stateitent of the Senate Report was inaccurate, or that

it represented the peculiar views of "one faction in the con-

troversy. "
Respect for the majority statement of the Senate Report

carried ro the floor of the tlouse during the abbreviated debate

on the Senate bill. Thus, amicus Representative F' James

Sensenbrenner explained to his colleagues:

"First, addressing the amendment lo section 2, which

incorporates the 'results' test in place of the 'intent'
test set out in the plurality opinion in Mobile against

Bolden, there is an extensive discussion of how this

test is to be applied in the Senate committee report."
128 Cong. Rec. H3841 (daily ed. June 23' 1982).

Again, there is no suggestion by any member of the House that

the majority statement in the Senaie Report was less than an

accuraie statement of the intent of Congress with regard to the

bill.

It 128 Cong. Rec. 56960-62, 56993 (daily ed- June 17. 1982).
20 128 Cong. Rec. 56646-48 (daily ed. June l0' 1982).
2t 128 Cong. Rec. 56930-34 (daily ed. lune l7' 1982).
zr 128 Cong. Rcc. 56941-44, 56967 (daily ed' June 17, 1982).
23 128 Cong. Rcc. 56995 (daily ed. June 17, 1982); 57095-96 (June l8'

r e82 ).
?' 128 Cong. Rec. 56919-21, 56939-40 (daily ed. June 17, 1982); S7o9l-

92 (lune 18, 1982).
23 l2E Con8. Rec. 56991, 56993 (daily ed. tune 17, 1982)' Thc

amendment otrercd by Scnator Stevens is particularly notewonhy-it con-

cerned the applicarion of the standards of section 2(b) in pre-clearance

cases-becausc hc largely sought to justify it on the basis of a consistent

siatemcnt in the Senate Report.



20

L As e Meiter of Lew, the Maiorlty Stetement im

the Senrte Report.ls Entltled to Grert Respeet

Under fundamental tenets of statutory construction, Com-

mittee Reports are accorded the greatest weight as the views of
the Committee and of Congress as a whole.

In the preteding term, this Court reaffirmed the long-

established principle that committee reports are the author-

itative guide to congressional intent:26

"In surveying legislative history we have repeatedly

stated that the authoritative source for finding the

legislature's intent lies in the Committee reports on

the bill, which'represent t I the considered and

ctllective understanding of those Congressmen in-
volved in drafting and studying proposed legislation''
Zuber v. Allen,396 U.S. 168, 186 ( 1969)."

Garcia v. lJnited States, 

-U.S-.* 

t05 S. Ct' 479, 483

( l98a); accord Chandler v. Roudebush, 425 U.S. 840, 859 n'36

irgzO[ Zuber v. Allen, 396 U.S- 168, t86 ( 1969); United

Slares v. O'Brien,39l U.S. 367, 385 ( 1968); United 'S'ates v'

International lInion of Automobile Workers,352 U'S' 567, 585

( 1957). T'he Garcia Court also reiterated. the principle that

committee reports provide "more authoritative" evidence of
congressional purpose than statements by individual legislators.

Gaicia,l05 S. Ct. at 483: Ilnited States v. O'Brien,39l U'S' at

385; cf. United States v. Automobile Workers,'3s2 U'S' at 585'

In light of these well-established principles, the effort to

undermine the value of the committee Report as a guide to

legistative intent by citation to statements nfade during floor

debates is misguided. committee reports are "more author-

irative" ihan statements by individual legislators, regardless of

e. consisrent wirh rhis longstanding principle, the senatc Relrcrt has

been the aurhoritative sourcc of legislative history relied on by courts

interpreting rhe 1982 Votin3 Righu Act Amendmcnts' Sae, c'g'' McMillan v'

Escimbra t^rn,y, lly F.2d lO3? ( I lth Cir. l984li llnircd Statcs v. Dallas

County Comm'n, ng F.2d 1529 ( I lth Cir' l984ll llnitcd Statcs v' Morengo

County Comm,n, ?31 F.2d 1546 ( l lth Cir.), ccrt. dcnled, 
- 

U.s' 
- ' lo5 s.

ct.]75(lgEa);Vclasquezv.CttyofAbilcnc,T2SF.2dlolT(SthCir.1984).

2t

rhe fact that the individual legisiator is a sponsor or lloor
manager of the bill. .See National Association of Greeting Card
Publishers v. United States Postal Service,462 U.S. 810, 832-33
n.28 ( 1983); Chandler v. Roudebush, 425 U.S. at 859 n.36;
Monterqt Coal v. Federal Mine Salety & Health Review Com-
mission, 743 F.zd 589, 596-98 (7th Cir. 1984); Sperling v.

United States,5l5 F.2d 465, 480 (3d Cir. 1975), cert. denied,
462 U.S. 919 (1976).27

The basis for this rule is quite simple, for to give con-
trolling effect to any legislator's remarks in contradiction of a

committee report "woutd be to run too great a risk of per-
mitting one member to override the inient of Congress. . ."
Monterey Coal v. Fed. Mine Safety & Health Review,743 F.2d
at 598. The rule also rellects the traditions and practices of
both Houses of Congress, in which members customarily rely
on the report of the committee of jurisdiction to provide an
authoritative explanation of the purpose and intent of legisla-
tion before any floor consideration begins. For example, the
Senate Rules forbid the consideration of "any matter or
measure reported by any standing committee unless the
report of that committee upon that matter or measure has been
available to members fior at least three calendar days . . . prior
to the consideration . . . ." Rule XVII, para. 5, Standing Rules
of the Senate. In this way, each member has the opportunity to
examine not only the text of proposed legislation, but also the
explanation and justification for it, welt in advance of any vote
on the bill. By contrast, the vast majority of members may be
completely unaware of the content of a statement made during

2t ln National Association ol Grccting Card Publishcrs, the Coun ruled
that a statement by the 6oor managers of a bill. appended ro the conferencc
committee report. lacled "the status of a confercnoe report, or even e report
o[a single Housc available to both Houses." 462 U.S. at 832 n.28. The Court
in Chondlcr v. Roudebush held a commirtee report to be "more probarive of
congressional intent" than a statement by Senator Williams, the sponsor of
the legislation. ,125 U.S. at 859 n.36. ln Montcrcy Coal, the courr noted ihat
the sponsor's statemeni! "are rhe only mention in the legislative history of the
specific issue before us." Montcrq Coal v. Fcd. Minc Salety & Heolth Revicw,
743 F.2d at 596. Nevenheless, because the sponsor's position was not "clearly
supponed by the conferencc committee report," the court declined to give the
sponsor's remarks controlling weight. 711 F.2d at 598.



22

floor debates. It is impossible to determine from the officiai
record of congressional proceedings whether a given member,

or a majority or any particular number of members, was

present when a certain statement was made. It is even
clrstomary for statements to be delivered orally only in part,
with the balance printed in the Congressional Record "as if
read." Given these facts, well known to amici from their
decades of experience in both Houses, there is little basis for
concluding that any given statement made in floor debate
accurately states the intent of any member other than the one
who made it.zo

Furthermore, the "compromise character" of the 1982

amendments does not detract from the validity of the majority
views. Here the proponents of the compromise wording
expressly agreed with the majority views and viewed the

2r The cases cired by the Solicitor General in support of the efrort to

amplify the stetements of individual !rcnators and disprrage rhe significancc of
rhe Senate Report, arc inapposire.

ln Nonh Havcn Bd. d Educatlon v. Bcll,456 U.S. 512 ( 1982), the Court

nored that "thc siatemcnr of one legislator made durin3 debere may not be

controllin3,- but indicatcd ihrl rlatements made by Senator Bryh, a sponsor

of the legislation, werc "thc only authoritativc indications of congressional

inrenr regardlng thc scope of ll 9Ol and 902" ofTidc lX, because lt 90t and

902 origineted ar e f,oor amendment and no committee rcport discussed

them. 456 U.S. at 52G27.

Thc other case cited by the Solicitor General. Grote City Collcge v. Dcll,

- 
U.S. 

- 
lO4 S. Ct. .l2l I ( 1984), also involved an interpretation of Titlc

IX. The Courr in Grotc clty again recognized rher "lratement3 by individual
tegislarorr should not be given conrrolling e[ecl," but cited North Hoven to

support irs position thar "Scn. Beyh's remarks are 'an authoritarive guide to

rhe srarute'l construdion.' " lO4 S. Ct. at 1219. The Courr indicated thar Sen.

Bayh's remarks were authoritativc only to the ertent thei they were consistent

with the tanguage of the sritute and the legislative history. Id.

Thus, /Voart Havcn end Grotc City crlnccrn the significance of a sponsor's

erprcsscd viewr in the absencc of a rctevanl sleicmcni in e cpmmittee fepon.

Here, in marted @ntra3l. lhe Soliciror General draws an unr'arranled

inference ther clc<rorel 3uoog$ might precludc a SeAion 2 cleim fmm Senator

Dole! expresscd desire to avoid a rcquirement of proponional represcntation,

and fhcn asscrts thet infertncc as supcrior lo an expre$ 3tetement to lhe

oontrery in the Scnatc Repon.

23

compromise wording as merely a clarification of the intent of
Congress.2e In these circumstances, there is no reason to
conclude that the Committee Report, prepared after adoption
of the compromise, and accepted by all as an accurate ex-
planation of it, loses its status as the most auihoritative guide to
legislative intent.

TTT. TIIE DTSTRICT COURT APPROPRTATELY LOOKED
TO TITE TOTALTTY OF CIRCUMSTANCES IN-
CLUDING THE EVIDENCE OF SOME BI.1\CK ELEC-
TORAL SUCCESS TO DETERMINE WHETHER
BLACKS HAD EQUAL OPPORTUNITY TO PARTTCI.
PATE IN TIIE ELECTORAL SYSTEM; THE COURT
DID NOT REQUTRE PROPORTIONAL REPRE.
SENTATION

At bottom, the argument of the Solicitor Ceneral and
appellants, that limited electoral success by menrbers of a
minority group should be conclusive evidence that the group
enjoys an equal opportunity to participate, rests on the claim
that such a rule is implicit in the disclaimer that Section 2 does
not provide a minority group the right to proportional repre-
sentation. All parties agree that Section 2 was not intended by
Congress to provide a right to proportional representation-but
that point has no significance to rhe immediate issue.

As the pre-Bolden case law discussed previously illustrates,
the trier of fact may find a denial of equal voting opportunity
where, despite evidence of some minority group electoral
success, evidence of other historical, social and political factors
indicates such a denial. See, e.g., Wite v. Regester,4l2 U.S.
755 (1973\; Kirksey v. Board of Supemisors, 554 F.2d 139 ( 5th
Cir. ), cerl. denied,434 U.S. 968 ( 1977); Zimmer v. McKeithen,
485 F.2d 1297.(5th Cir. 1973), af'd sub nom. East Carroll
Parish School Bd. v. Marshall,424 U.S. 636. Such a finding in
no way implies or necessitates that Section 2 be applied as a
guarantee of proportional representation. The "dispropor-
tionality" of minority group representetion is not rhe gravamen

2t.lec tert end notes accompanying nt.lLl7, supra.



24

of the Section 2 claim in such a case' though it may be a factor;

rather, it is the *nflutn"" of factors which indicates that an

equal opportunity tt'p"ii"i'":" irr 
tP-oolitical process and to

elect repres.n'"t''J Jiit"ii choice has b"en denied members

of thensrouP'tl 
o","r,,,,ne whether a violation of section 2 has

occurred, courts "'""io 
*n'ider whether' given the "totality of

circumsunccs,".members o[ a protected class have been gtven

an equal oppoa'nity t"'p*f"ii"tein.the electoral process and

to elect ,.0r"'"nt"ti;'J in"i' "t'oi""' 
tn its opinion' the

district *u. "rpt"tJi" 
;J;rtake- just the sort of "totality of

circumstanc"r,, rn"tiJirlr, ,t. chane_nged state regisrative dis-

tricts as is rtq'iti';; ;;;i"" 1^ 'i 
fact' the district court'

quoting the Senatei;; at28-29'set forth the nine so-called

"Zimmer"factors *iiJi-"' be relevant in determining wheth-

er a section z ,iorl'tioi';;;L; established, and proceeded to

lnrl;; those factors' 59o F' SuPP' at 354'

The court """tJ 
tn"t it found- " lig'T 

d:?tt-t ol':1"t'tt'

polarized or bloc '"i1"'' 
*"n that in all llstricts a majority of

the white voters nt"i''ottd for -anv 
black candidate' The

existence or '""i'iii'p"r"i'"a 
votin-g is a significant factor in

determining *t"ti'i"'"'Jilution exists' particularly where' as

here,large *uftii"'nUer districts "t 
in"oiu"d'3t See McMillan

loAs the Solicimr Gencral himsclf poinr out' "[almended Seaion

2.. - toc,ses not oo.'i"'i'i"oine a'"ti* :;i:;:l"r;;:,:'';:H#1
lr..y'litn !h: lqht 

ro equal'opportunttv . nirl'.'i,il"" ir' iongtto

k*;;'#l * J:'.:fi :'i!i!TJ'1i""'i'- in 
"t 

erectio n rc suris

alone should *t ut itittrnl"ed'e oi a Section 2 claim'

,r we do -,ffhi:::,:I;:ji5;xli"!,{El:,1:x; ff
minority cendidares. E::I-."^",:' r;tffiil'; 

'n"ioaty 
o[ white voters will

*:*i'Ll.."'['T:,.":1ff::fi ll#'ffiu#:*jrargemurrimember
districts*'ith'"i';;Hi':"'"*;;f:::*:T:|;ili,'["il",T;"*'::
i:*:l:t#::.T:',"':lli;:'i,'",:",:li:lT;,;il;"""Jiai"lin'lhef ace

oiit* rn";otiry white oPPosirion'

Bccause of iaftyn""'ies that rn'V \ Drescnt in any parricrrlar election'

the court 'r'o'ra 
r"Ti "t';;;;;t "it at[m' as the district court did' to

assess the ,"*"-^oi ;;;tt; polerizcd voting' of course' for this reason'

black succcsr t" " '"t'"'it 
tt'"Itil'-;" ''iti'ito 

white support' cannot be

determinative'

-,Ao E ?,{ ln17 ( 5rh Cir. 1984); llnited
v. Escam0ta Lounry' /$o r 'ru rv- \ -

Sares v. Dallas Co'nty tommission' 739 F'2d 1529 ( I lth Cir'

1984); Ilnited Stot"''v' Marengo Counry Comm'n' 731 F'2d

1546 (llth Cir.), i"'t'-'a)nUa' U'S'-' 105 S' Ct' 375

iirir). This'brief does not contend that all at-large'

muttimember districts should be suspect or subject to challenge

under Section 2. n"ii"', the district court acknowledged that

"a multimemU.r ai'i'ict' does not alone establish that vote

dirution has resurted,,;-iqo r. supp. ar 355, but found that large

multimember districis along **iih severe racial polarization in

voting and other f;;i; cimbined here to create such dilu-

tion.32

The district court stated further that it found a history of

ollicial discrimination 
-'g'in't 

blacks..in voting matters-in-

cluding the use .f al'it"i t"t' 's ' 
p"l! tax' a literacy test' and

an anti-single-shot 'oting 
law-which had continuing effect to

depress black voter"'"ii*"ion :99 F' Supp' at 359-61'

Alrhough tt,e aisti"t';;'; acknowledged tfat.thl-devices

were no longer .'oitrta i, iht ""ty 
l97os' it also recognized

that rheir "*irt.n"J 
iot o'* half a century has had a lasting

impact. Id. at id' int lasting impact of historical dis-

crimination on thJ"p'"t"ni-a"y tUitity to participate in rhe

.i..i"rrl process has also been recognized in other recent cases'

Cf. Ilnited Stores ;'- i;;";g' Countv .Comm'n' 
731 F'2d at 1567

("IPlast discrimination "l' severely impair the present-day

ability of minorititt to p"'titipate on an equal foo-ti-18-i1 the

political p.o..rr."), M'Mittan v' Escambia County' 748 F'2d at

1043-44.

Thedistrictcourtdecisionrests,inpart,onrhe-factthatthis
history of official li'"'itin'tion is still relatively close in terms

of time. fn. .orn noi"J ,nrt a "good faith" effort is now being

rzThesolicitorGeneralmischaracterizesthedistrictcourt'spositionin
suggesting tt rt it i.pioJ'r, itn"ta oaally polarized voting to exist where

more than so p..".nr oi-*hites and blacks vore for a different candidate' The

district courr's ftndin;';;;dl' nolaril! voting instead w-as'based on

errensive erpert testirio;; ;;i;i;ti"blished. that a majoritv of white voters

will not vole lor "", 
;'i"";;;;idales' This was thc case even when blacks

ran for office unoPPosed'



26

made by the responsible state agency to remedy the effects of

p*,ir.l.iinatiln' The court observed:

"' . . . lf continued on a sustained basis over a

sufficient pt'i;Jh" effort might succeed in removing

the disparity in itgi'tt"tion o'hi"h tt'rvives as a legacy

of the rong p"'iof,oiAit""t denial and chilling by the

state of ,.gi"'lJ* Ly black citizens' But at the

present time tt'e gip tt"t ""t 
been closed' and there is

of course no ,u"?"ltee that the effort will be contin-

ued past the end of the present state adminis-

tration."'59O F' SuPP' at 361'

. The courr berow arso recognized as significant the majority

vote require-.n, i'ipi;-;;l:i;"h caroiina in primaries' cf'

Zimmer,485 F.2d "i 
tfOS' Because of the historical domina-

tion of the Democ*i"-ri"V in toc.al races' this majority vote

requirement in p'inii"J 'uutt'nti"lly 
impeded minority voters

from electir, ""niiJ"ilt "i 
tn"it ctroice' 59o F' Supp' at 363'

Recent cases which-["* "titiOered -amended 
Section 2 have

reached similar i*r*.1, . c1. u"u-iilan v. Escambta county,

suprcr,748 F.zdJ't"od i;;iai i"i*itv vote is required during

the primary in "t' ""'"" 
;i;t; the D"mocratic Party is domi-

nant. This factor *"i,f" i" f""-"t of a finding of dilution"');

United Statesr. Oo,ial, County Commission' suprd' 739 F'2d at

1536 ("[Tlr" .oitJ^t* tl" m1io1v in the primarv plus the

signiffcancc of tt'f otiocratic primary combined to weighI I

in favor of a ni'ai" tf ditution : ''"')t lfinited S'a'es v'

Marengo Countv'i"Lit"n' 131 F'2d at t']9 11.:,T:t:q ::
vote dilution is "enhanccd" by a majority vote requirement ln

the PrimarY)'

The district court found that "Iflrom the' Reconstruction

era to the present tiit' appeals to racial prejudice against black

citizens t "'" 
u"* "ilil;y 

used by persons'-eithercandidates

or theiruur*ot*]';;; #*'-:l'lh'"ncing voters in North

Carolina potiti"Jlipiig"'" 59o F' Supp' at 3'64'

Moreover, the racial appeals "have tended to be most

overt an.{ urrt"ni-in tt or" p";oar when blacks wete openly

asserting poliri""i 
;"nJ ti'ii rights'" Id' The district court

conciudetl that the effec" of raciat appeals "is presently to lessen

io ,or" degree the opportunity of black citizens to participate

effectively in the potiiical ptot"t"' and. to elect candidates of

it 
"i. "rrol..." 

Id. Racial eiectoral appeals are a relevant factor'

i.n"," Report at 29' While not present in this case' one must

be sensitive to the possibility oi racial electoral appeals by

minoritY candidates as well'
tAnd, the district court found that North Carolina had

, offered no legitimate policy justification for the fiorm of the

challenged districts. 590 F' S'pp' at 373'74' As the court in

irrrn[o Connry acknowledged, 
;the tenuousness of the justifi-

cation for a state p"li.y rn'i indit'te that the policy is unfair'"

731 F.2d at l57l (citation omitted)'

The foregoing findings contained in the district court's

opinion illustrlte ihat in dlciding rhis case ihe court appropri-

,l"if 
"onriaered 

the factors thai Congress found relevant in

;r;;ti"* the "totality of circumstances'" Amici also note that

thedistrict.ou."n,lyzedblackelectoralsuccessatlength,as
the statute 

"orrr"mpt"tes, 
as "one circumstance to be consid-

"r.d.,, 
flowever, thl Court found that in light of the totality of

circumstances this evidence of electoral success was inadequate

io establish that blacks had an equal opportunity to participate

in the political process, because it was due to the presence of a

varietyoffactorsotherthanthosewhichindicatedthatblacks
had been given an equat opportunity to participate in the

political process.

ln rhe 1982 election in House District 36 ( Mecklenburg

County), for.example, black candidate Berry was elected' 590

F. Supp. at 369- in ittr, election, however' there were only 7

white candidates for 8 positions so ihat I black candidate had

to be etected- Id- Even under these circumstances' only 42

f".."n, of the white voters voted for Berry' the black candidate'

in the general election, and Berry was the first black represenia-

tive elected from House District 36 in this century' 590 F' Supp'

at 365, 369. S"r.n other black candidates ran unsuccessfully

for ofhce bet*een-1966 and t981, and there was another black

can<lidate in the 1982 election who lost' Id'



'28

In Senate District 22' whi-ch aiso- inciudut 
"t"6onbr-trg

countv, onlv ohe bi;:k;;tJidate has been elected' and he

served from l9?5-rii6' sgO F' Sup-p" at 36s' ln 1980 and

1982, black t"naiaolJt ;;;;;"*t'rutt'' leaving an all-white

four-membt' stn"'i"i"t1;""; i"r tJris bi'trict' Id' ln the

1980 and rggz ere;til;;'"* ;"re than 33 percent of white

voters voted lbt th;;;;:k candidates' 590 r' supp' at 369'

while 78-9a pt'""ni 'i-ir'" 
black- uot"" voted for the black

candidates' Id' g'"i'in tt'e 1982-g"n*"I election' where 94

Dercent of the bl"* ;;"'uoi"a r"t ft black candidate' the

Llack candidate losi' 
'ii' 

mi' illustrates the extreme'difficultv

blacks have in 4t"""'lf"ir "*aiA"rcs 
where there is racially

polarized voting in'"-i"ig"' predominantly white multimember

district' 
lam countY)' which' on

Even in House District 23 (Du:i

the surface, has a ,'"riir"ir'rr"".rrrur r". .r minority electoral

success -.p"rud'ril';;" 
of the oiier "hatlenged 

districts'

factors other than equii;;;"* to the political process have

contributed to tt'"" J;:t:-6t" q";[rt'"s been elected to the

House each term :H" ffi' 
-i* 

f d;;;' at 366' ln the le78

seneral election il;"'il; ilao p'i,,,"t" "nd 
get'"r"I elections'

toor"ru., tt'e ura"t candidate '"n 
u'i*ntesied' Id' * 11o'

Furthermort, in l'r'l i'ii'"t,n"tv ti"it were onlv two'white

candidates ro' tt'it" to"t' * ttt"t o""-itack necessarily had to

win. rd' Nt'"'riit=tl;;;;; tt"n n"rroiihe whirc voters tailed

to vote for the Ufi"ft ""'aidates' ""n 
*'t"" they had no other

"ioi".' 
Id' at !1O'1l'ss

tn light o[ these findings' th'e district court fiound a denial

of voting tigtttt llJ"t'ii' ;:tot"ri:v ;'";'stancts" analvsis'

despite 'ot" "'ii"il 
oiut'"rt "t"ctot"t 

succ€ss' 59o F' Supp'

at 376' rr" 'Jo'u'i"'i**ta tr"I'Lii'se of the raciallv

polarized "t""';"";' 
;i;;lt::al success came at a pnce'

"[Tlo have a Jin"" of success i" tiJJig candidates'o[ their

choice in tf'"tt li'tri:cts' black-'ottl-*uti rely'extensively on

single-shot"t'""s't'n"'101;:f:'Tt"iiJil"l',".1'tfi:'X$:
rigtt to vote for a full slate ot

3' s.? footnote I at p' 5' supra' for

electoral suctc3sc3 at issue here'

Furthermore, the cor'trt stressed that even this success was a

recent phenomenon"''na--i*"far as-the i982 elections were

concerned, was "too'"n"'rtl'"tJt "*.aberrational 
in terms of

spbcific candidates' #;;:-;J political trends' and' in anv

event, still too 
''ni"niJ-'in 

numbers' to support an'v- slch

ulrimate inference" oi 
"quufity 

of opportunity' Id' at 367 n'27 '

The Solicitor General and appellants' position would nar-

row the scope of '""ir'-t' 
i'l'Ltrirl'" s-"ition z does not permit'

It would require tf'" iou' to ignore- the totality of circum-

stances evidencing 
'" i"'i'f or iqu"t political and electoral

opportunity in fa'Jr oi fo"utint- o-L, onl' the most 
' 
recent

elecrion returns' lf those returns evidenced any noticeable

success by minority'"'nJid""" that would be dispositive'

The Solicitor General and appellants try to justify this

approach by arguing that the congressional rejection of a test of

proportionari'v '"t?"i;;;; 
ilding that limited electoral

success is disposrtrJJ;';;;" 2 claim' The district court' in

analyzing th" "totality of circumstances"' neither ignored elec-

toral succes' Uv 'jn"titi"'' 
not fgunf this one factor to be

conctusive. There t:..n"o','u-!g.,ii-on in the opinion of the district

court that it misinte"rpttt"iift"- intent.of Congress and found a

deniat of voting 'igilt 
ti^'ly becaus€ blacks had attained less

than proportional "J;;;:"'i"iitt' the district court expressly

acknowredged thai the rack of proportional representatlon ts

insufficient ,o t"jfitti " 
S""ti"" 2 violation' 59o F' Supp' at

35 5.



30

CONCLUSION

For the reasons set forth above, amici tespectfully request

that this Court affirm the decision below, and recognize the

necessity of measuring a violation of Section 2 on the basis of
the ..totality of circumstancrs," with particular emphasis on the

factors set forth in Zimmer and the Senate Report'

Respectfully sub mitted,

Wrrrsn J. Rocxrsn
(Counscl of Record)
Mrnx P. Gencrx
Bennrnr L. Arwsru

Anxoto & Ponrsn
t20O New HamPshire Ave., N'W'
Washington, D.C. 20036
(2021 812-678e

Attornqs for Amici Curiae

Dated: August 30, 1985