Brief for Appellees

    q
f

I

No. 83-1968

IN THE

SUPRE}IE COURT OF THE UNITED STATES

Oct,ober Term, 1984
== ====================-= ======-==
LACY H. THORNBURG, et aI.,

Appellants,

V.

RALPH GINGLEST €t aI.,

O*"*".=.
--__:t=-======= ====== ====== === ===== ==

On Appeal from the United States
District Court for the Eastern

District of North Carolina

===a=============t=========a=39======t===

BRIEF FOR APPELLEES

JULIUS L. CHAT.IBERS
ERIC SCHNAPPER
C. I,ANI GUINIER i

NAACP Legal Defense
and Educational Fund, fne.
15th Floor
99 Hudson Street
New York, New york 10013
(212) 21 9-1 900

TESLIE J. WINNER
Ferguson, Watt, Wa11as,
a Adkins, p.A.
951 S. Independence B1vd.
Charlotte, North Carolina 29202

- ( 704 ) 375-846 1

ATTORNEYS FOR APPELLEES, Ralph

: 
Oingles, er al.
rCounsel of Record



I

QUESTIONS PRESENTED

( I ) Does section 2 of the Voting

Rights Act require Proof that

minority voters are totallY
excluded from the Polit,ical
process?

(21 Does the election of a minoritY

candidat,e conclusively establish

the existence of equal electoral

opporEunitY?

(3) Did the district court hold that

. section 2 requires either
proportional rePresentation or

guaranteed minoritY electoral

success?

1-



({) Did the distrlct court cor-

rectly evaluate the evidence of

raclally Polarized voting?

(5) Was tbe district courtrg finding

of unequal electoral oPPortunltY

'clearly erroneoug"?

I

I

,

ii



TABLE OF CONTENTS

page

Questions Presented .............. i

Table of Authoritigs ....... o..... vi

Statement of thg Casg .... ........ 1

Findings of the District Court . o. 7

Summary of Argument .............. 15

Argument

f. Section 2 Provides
Minority voters an Equal
Opportunity to E1ect
Representatives of their
ChOice ................. 19

A. The Legislative HistorY of
the 1982 Amendment of
Sgction 2 .............. 21

B. Equa1 Electora1 OPPor-
tunity is t,he StatutorY
Standard ... o......... .. 44

C. The Elect,ion of Some
ttinority Candidates Does
Not ConclusivelY Establish
the Existence of Equa1
Electoral OPPor-
tunitY ............... 50

r11



II.

III.

rv.

Page

The District Court Re-
quired Neither Proportional
Representat,ion Nor Guaran-
teed llinority PoIitical
Success ..... ........ o 64

The District Court, Applied
the Correct Standards In
Evaluating the Evidence of
Polarized Voting .. o....... 70

A. Summary of the District
Courtrs Findings ...... 73

B. The Extent of Racial
Polarization was Sig-
nificant, Even Where
Some Blacks Won ....... 76

Appellees urere not Re-
quired to Prove that Whit,e
Voters I Failure to Vote
for Black Candidates was
Racially Motivat,ed .o.. 81

The District Courtrs
Finding of the Extent of
Racially Polarized
Voting is not Clearly
Erroneous ............. 88

The District Court Finding
of Unequal Electoral Oppor-
tunity Was Not Clearly
Erroneous .....

The Appl
RuIe 52

icability of

1V

c.

D.

A.

95

95



c.

G.

Conclusion ...

Evidence of Prior
Voting Discrimi-
nation ..o............

Evidence of Economic
and Educational Dis-
advantages ...........

Evidence of Racial
Appeals by White
Candidates ...... o.. o.

Evidence of Po1ar-
izgd Voting ..........

The Majority Vote
Requirement . o..o..o..

Evidence Regarding
Electoral Success of
ltinority Candi-
dates . . . ... .. . o . . . . . .

B.
Page

102

107

113

118

118

121

D.

E.

F

H.

I.

The Responsiveness
Issug ................ 1 30

Tenuousness of the
State PolicY for Multi-
member Districts .. o. . 1 31

' . . . . . . . . . 135



TABLE OF AUTHORITIES

Cases
Sage

100

Alyeska eipeline Service v' Wilder-
ness SocietY, 421 U.S'
240 (1975) """""o"""'

Anderson v. CitY of Bessemer
Citv, U.S. , 84
i:Ea.ztr-ste (1995) ...... 15,98,99

Andersorl v. [tills , 664 F.2d
5OO (5th Cir. 1981) ""'o"' 84

Bose CorP. v. Consumers Union,
80 L.Ed.2d 502 (1984) ....." 98

Buchanan v. CitY of Jackson,
708 E.2d 1066 (5th Cir'
1983) ...""""'o""""" 96

City of Port Arthur v. U.S',
I Sr 7 F. SuPP . 987 , affirmed

459 u. s. r-:ig ( 1 982i:. . . 85, 120

City of Rome v. U.S., 446 U'S'
156 (1980) ...-...-...o-- 72r991120

CoIlins v. CitY of Norfolk,
768 F.2d 572 (4th Cir'
JuIY 22,1985) .....""'o..' 96

-VI



Page
Cases

Connecticut v. Tea1, 457
U.S. 440 (1982) "..""""' 63

Cross v. Baxter, 604 F.zd 875
(5tfr Cir. 1979) ......... o.. o

David v. Garrison, 553 F.2d 923
(5t,h Cir. 1977 ) ..... - -......

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

Ernst and Ernst v. Hochfelder,
425 U.S. 185 ( 1975) ..... o...

Garcia v. United Statesl U.S.
_ 105 S.Cr. 4'79 (19rr) ....

GasEon CountY v. United States,
395 U.S. 285 (1959) .....o...

56

110

110

50

36

107

Gilbert v . St,errett, 508 F. 2d
1389 (5th Cir. 1915) -..-o... 96

Harper & Row, Publisher v-
Nat,ion, U. S. 

-. 
85 L. Ed. 2d

588 (198f......7...r.-... 98

Hendrick v. Walder, 527 F.2d 44
(7th Cir. 1975) .....-....... 110

Hendrix v. JosePh, 559 F.2d
1255 (5th Cir. 1977) ...-o... 96

Hunter v. Underwood, U-S. ,
85 L.Ed.2d 222 (T96S) ...:. 99

-vii-



Page
Cases

Jones v. City of Lubbock | 727
E .2d 354 ( 5th Cir. 1 984 ) ;
reh'rg en banc denied, 730
F.2d 233 (1984) ggr96,130

Kirksey v. Bd. of Supervisors, 554
F.2d 139 (5th Cir. 1977)... 55

Kirksey v. City of Jackson, 699
?.2d 317 (5th Cir. 1982) .... 84

Lodge v. Buxton, Civ. No. 176-
55 (S.D. Ga. 10/26/781 , af f rd
Rogers v. Lodge, 458 U.S;-
613 (1982)

Major v. Treen, 574 F. Supp. 325
(E.D. La. 1983) (three judge
court ) 55t71r78

McCarty v. Henson, 749 F.2d
1134 (5th Cir. 1984), aff'd
753 F.2d. 879 (5th Cirl-
(1985) ............... 96

McCleskey v. Zant, 580 F. Supp.
380 (N.D. Ga. 1984), aff 'd 753

F.2d 877 ( sth Cir. 19851:. . . 86

McGiIl v. Gadsden County
Commission, 535 F.2d 277
(5th Cir. 19761

Mclulillan v. Escambia County, 748
t'.2d 1037 (11th Cir. 1984) .. 108,130

I'tetropolitan Edison Co. v. PANE,
460 U.S. 766 (1983)

viii-

80

96

98



Cases

lliss iss ippi RePubl ican Execu-
, tive Committee v. Brooks,

u.s. , 105 S.Ct,.
affi (1984J-........ c........

Mobile v. Bo1den,
(1980) ......

446 U.S. 55

Page

.22 t23 r24 r30,
82

85

NAACP v. Gadsden CountY School
Board, 691 F.2d 978 (1lth
Cir. 1982) ..................

Nevett v. Sides, 57 1 F.2d 209
(1978) ....... .. o.. 58159

Parnell v. RaPidas Parish School
Board, 563 F.2d 180 (5th
Cir. 1977) ...........-...... 95

Perkins v. CitY of West Helena,
675 F.2d 201 ( 8t,h Cir. 1 982 ) ,
aff'd mem. 459 U.S. 801
TT9EZ):... .. o... .. ... . . . . . -. 85

Rogers v. Lodge, 458 U.S. 613- (1982) .....o...... 79r80r85r99r130

South Alameda SPanish SPeaking
Org. v. CitY of Union
City, 424 F.2d 29'l (9th
Cir. 1970)..............."" 84

Strickland v. Washington, U.S.
_, 80 L. Ed.2d 67 4 (Ty64 ) . -

United Jewish Organizations v-
Carey, 403 U.S. 144
11977) ......................

IX

80

98

68



Page
Cases

U.S. v. Bd. of Supervisors of
Forrest County, 57 1 F.2d
951 ( 5th Cir. 1978) ......... 55

U.S. v. Carolene Products Co.,
304 U.S. 144 (1938) ......... 71

U.S. v. Dallas County Commission,
739 F.2d 1529 (11th Cir.
'l 984) ....o....o..... ....... 97

U.S. v. Executive Committee of
Democratic Party of Greene
County, Ala. 254 F. Supp.
543 (S.D. Ala. 1966) 84,85

U.S. v. l'{arengo County Commission,
731 F. 2d 1 546 ( 1 1 th Cir.
1984) 56,57 ,85,96,

108,130

Velasquez v. City of Abilene,
725 F.2d 1017 (5th Cir.
1980).... 56,96

WaIIace v. House, 515 F.2d 519
(5th Cir. 1975) 56, 59

WhiEcomb v. Chavis, 403 U.S.
124 (1971) .................. 129

White v. Regester, 41 2 U.S.
755 (1973) ......... passlm

Z immer v. trlcKeithen , 48 5 F.2d 1297
(5ttr Cir. 1973)(en banc),
aff'd sub nom East Carroll
F,iiTEn-Eh6'dT Board v. Marshall ,
424 U.S. 536 ( 1976) .... 30,55,58,95

x



Page

OTHER AUTHORITIES

Stat,utes

Section 5, Voting Rights Act of
1965, 42 U.S.C.
S1973c .............. ' 3r4r221133

Voting Rights Act Amendments of
1982, Section 2,
96 Stat. 131 , 42 U.S.C-
51973 .......""""..""

Federal Rules of Civil Proceduret

pass rm

RuIe 52(a) ............ 57 r98r'100r101

Constitutional Provisions i

Fourteenth and Fift,eenth
Amgndmgnts .............' "

House and Senate Bills

pass 1m
L_

lI. R. 31 98, 97th Cong . , 1 st Sess.
52 . o. . .. . ... t ' " ' " " " ' o

H.R. 3112, 97th Cong.r 1st
Sess., 5201 ..............

Senate Bill S. 1992 ..... -... o o

Congressional BePorts

House Report No. 97-227, 97th
Cong., 1st Sess. (1981)

Senate RePort No. 97-417, 97th
Cong., 2d Sess. (1982)

x1

23

23

33, 34, 36

pass Im

pass im



Page

Congressional Hearings

Hearings before the Subcommittee
on Civil and Constitutional
Rights of the House JudiciarY
Committee, 97th Cong-, 1st Sess
(1981) ........""""o"' 23

Hearings before the Subcom-
mittee on the Constitution
of the Senate JudiciarY
Committeeon S.53, 97th Cong.,
2d Sess. (1982) ..o...... 28r34t35r41,

42,43

Congressional Rgcord

128 Cong. Rec. (daily ed. Oct-
2, 1981) ..............."

128 Cong. Rec. (dailY ed., Oct.
5, 1981) ....o........"'

128 Cong. Rec. (dailY ed. Oct-
15, 1981) ............"o

128 Cong. Rec. (dailY ed. June
1982) . .. ..... ... o. . ..

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

128 Cong. Rec. (dailY ed. June
1982) .................'.

128 Cong. Rec. (daily ed. June
1982) ....................

xl1

25 t26 t29

26,27 ,29

29

9,
35r37 r40r47

48 ,54 r82

10,
35 ,37

15,
29 ,34,37 ,82

16,
55



Page

128 Cong. Rec. (daily ed. June 1'7,
gdzl .......... o....... rr r13 rr21rre2

128 Cong. Rec. (daily ed. June
18; 1982) . . . . . . o . . . 29 ,37 ,46 ,48 r 53

72,82

128 Cong. Rec. (dailY ed. June
23, 1982) ........."""'

t{iscel}aneous

Joint Center for Political Studies
National Roster of Black
Elected Officials
(1984) .........o."'''"''

Los Anseles 
T:T:::.T:: .:,'........

WaIl Street Journal, l'lay 4,
1982 .............. " " " "

New York Times, Dec. 18, 1981,
p. B'l , COI . 4 ...o.""..'

x 111-

34

43

43

41



STATEMENT OF THE CASE1

This is an action challenging the

districting plan adopted in 1982 for the

election of the North Carolina legisla-

ture. North Carolina has long had the

smallest percentage of blacks in its state

legislature of any state with a substan-

tial black populati on.2 Prior to this

litigation no more than 4 of the 120 state

representatives r oE 2 of the 50 stat,e

The opinion of the district court as
reprinted in the aPPendix to the
Jurisdictional Statement has two signifi-
cant tlpographical errors. The Appendix at
J.S. 34a and 36a states, "Since then two
black citizens have run successfulLy in
the (Mecklenburg Senate district) ..."
and 'In Halifax County, black citizens
have run successfuIly... " Both sentences
of the opinion actually read 'have run
unsuccessfully.n (Emphasis added). Due to
t'Eese and other errors, the opinion has
been reprinted in the Joint Appendix, at
JA5-JA58.

See Joint Center for PoIitical Studies,
National Roster of Black Elected Officials
(1984) 14, 16-17i JA Ex. VoI. I, Ex. l.



2

senat,ors, were black.3 etthough blacks are

22.4t of the state populationT the number

of blacks in either house of the North

Carolina legislature had never exceeded

4t. The first black was not elected to

the House until 1958, and the first black

state senator was not elected until 1974.

North Carolina makes greater use of at

large legislative elections than most

other states; under the 1982 districting

plan 98 of the 120 representatives and 30

of the 50 state senators were to be chosen

from multi-member districts.4

In July 1 981 , following the 1 980

census, Nort,h Carolina initially adopted a

redistricting plan involving a t,otal of

1 48 multi-member and 22 single member dis-

srip . 96,

Stip. Ex.
Sess. Laws
67.

JA 94-5.

BB and EE, Chapters 1 and 2

of 2nd Extra Session 1982, JA

3

4



tr icts . 5

3-

Under t.his Plan every single

House and Senate district had a white

majority.6 There was a population devia-

tion of 22* among the proposed districts.

Forty of North Carolina's 1 00

counties are covered by section 5 of the

Voting Rights Act; accordingly, the state

was required to obtain preclearance of

those portions of the redistricting plan

which affected those 40 counties. North

Carolina submitted the 1981 plan to the

At,torney Ge neral, who entered ob jections

to both the House and Senate plans, having

concluded t,hat "the use of large multi-

member districts effectively submerges

cogni zable concentrations of black

St,ip. Ex. D and F, Chapters 800 and 821
Sess. Laws 1981, JA 61.

The opinion states one district ldas
majority black in PoPulation, JA7,
referring to the second 1 981 P1an,
enacted in October after this lawsuit $ras
filed. Stip. Ex. L, JA 62.



4-

population into a majority white elec-

torate.' Stip. Ex. N and O, JA63. For

similar reasons, the Attorney General also

objected to Article 2 Sections 3 ( 3) and

5(3) of the North Carolina Constitution,

adopted in 1967 but not submitted for

preclearance unt,il af ter this lawsuit was

filed, which forbade the subdivision of

counties in the formation of legislative

districts. Stip. 22, JA 63.

Appellees filed this action in

September 1981, alleging, inter aIia, that

the 1 98 1 redistricting plan violated

section 2 of the Voting Rights Act and the

Fourteenth Amendment. Following the

objections of the Attorney General under

section 5, the state adopted two subse-

quent redistricting plans; the complaint

was supplemenLed to challenge t,he final

plans, which vrere adopted in April , 1982.

Stips. 42,43i JA 67. In June 1982 Congress



5-

amended section 2 to forbid election

practices with discriminatory results, and

the complaint i{as amended to reflect t,hat

change; thereafter the litigation focused

primarily on the aPplication of the

amended section 2 to the circumstances of

this case. Appellees contended t'hat six

of the multi-member districts had a

discriminat,ory result which violat,ed

section 2, and that the boundaries of one

single member district also violated that

provision of the Voting Rights Act.

After an eight day trial before

Judges J. Dickson Phi11iPs, Jr., Franklin

T. Dupree 1 Jr.1 and W. Earl Britt, JE.,

the court unanimously upheld plaintiffs'

section 2 challenge. The court enjoined

elections i n the challenged districts

pending court approval of a districting

plan which did not violate section 2.7 By

Appellees did not challenge all multi-



6-

subsequent orders, the court approved the

State I s proposed remedial districts for

six of the seven challenged districts. The

court entered a temporary order providing

for elections in 1984 only in one dis-

trict, former House District No. 8, after

appellants I proposed remedial plan vras

denied preclearance under section 5. The

remedial aspects of the litigation have

not been challenged and are not before

this Court.

On appeal appellants have disputed

the correctness of the three judge

district courtrs decision regarding the

1egal i ty of five of the six disputed

multi-member districts. Although appel-

lants have referred to some facts from

member districts used by the state and
the district court did not rule t.hat the
use of multi-member districts is per
se illegal. The district court's orE6f
Iil?ves untouched 30 multi-member districts
in the House and 13 in the Senate.



7-

House District No. 8 and Senate District

No. 2, they have made no argument in their

Brief that is pertinent to the lower

court I s decision concerning either of

these districts.S Like the unit,ed states,

we assume that the correctness of the

decision below regarding House District

No. 8 and Senate District No. 2 is not

within the scope of this aPPeaI.

THE FINDINGS OF THE DISTRICT COURT

The gravamen of aPPellees' claim

under section 2 is that minority voters in

the challenged multi-member districts do

not have an equal opportunity to partici-

pate effectively in the political process,

The Court did not note probable juris-
diction as to Question II, the question in
the Jurisdictional Statement concerning
these two districts, and even the
Solicitor General concedes that there is
no basis for aPPeal as [o these two
districts. U.S. Br. 1 1.



I

and particularly that they do not have an

equal opportunity to elect candidates of

their choice. Five of the challenged 1982

multi-nember districts were the same as

had existed under the 1971 p1an, and the

one that was different, House District 39,

was only modified slightly. The election

results in those districts are undisputed.

Until 1972 no black since Reconstruction

had been elected to the legislature from

any of the counties in question. The

election results since 1972 are set forth

on the table on the opposite page. As

that table indicates, prior to 1982 no

more than 3 of the 32 legislators elected

in any one election in the challenged

districts h,ere black, in 1981, when this

action was filed, five of the seven

districts were represented by all white

delegations, and three of the districts

stilI had never elected a black legisla-



9

tor. The black population of the chal-

lenged districts ranged from 21.8t to

39.5t. JA 21.

The district court held on the basis

of this record and its examination of

election results in local offices that

" I t ] he overall results achieved t,o date

are minimal." JA 39. The court noEed

that, following the filing of this action,

the number of successful black legislative

candidates rose sharply. It concluded,

however, that the results of the 1982

election hrere an aberration unlikely to

recur again. It emphasized in particular

that in a number of instances "the

pendency of this very litigation worked a

one-time advantage for black candidates in

the form of unusual organized political

support by white leaders concerned to

forestall single-member districtiDg." JA

39 n.27 .



10

The district court identified a

number of distinct practices which put

black voters at a comparative disadvantage

when placed in the six majority white

multi-member districts at issue. The

court noted, first, that the proportion of

white voters who ever voted for a black

candidate was extremely low; an average of

81t of white voters did not vote for any

black candidate in primary elections

involving both black and white candidates,

and those whites who did vot,e for black

candidates ranked them last or next to

last. JA 42. The court noted thaE in none

of the 53 races in which blacks ran for

office did a majority of whites ever vote

for a black candidate, and the sole

election in which 50t voted for the black

candidate was one in which that candidate

r.ras ru nni ng unopposed . JA. 43-48 . The

district court concluded that this pattern



11

of polarized voting put black candidates

at a severe disadvantage in any race

against a whit,e oPPonent.

The district court also concluded

that black voters were at a comparative

disadvantage because the rate of registra-

tion among eligible blacks was substan-

tiaIly lower than among whites. This

disparity further diminished the abilit,y

of black voters to make common cause with

sufficient numbers of like minded voters

to be able to elect candidat,es of their

cho ice . The court f ound t,hat these

disparities in registration rates were the

lingering effect of a century of virulent

official hostility towards blacks who

sought to register and vote. The t,act,ics

adopted for the exPress PurPose of

disenfranchising blacks included a poll

tax, a literacy test with a grandfather

clause r os well as a number of devices



12

which discouraged registrat,ion by assuring

the defeat of black candidates. JA 25-26.

When the use of the state literacy test

ended after 1970, whites enjoyed a 50.6t

t,o 44.6t registration advantage over

blacks. Thereafter registration was kept

inaccessible in many places, and a decade

Iater the gap had narrowed only sIightly,

with white registration at 56.7t, and

black registration at 52.71. JA 26 and

n.22 .

The trial court held that the ability

of black voters to elect candidates of

their choice in majority white districts

hras further impaired by the fact that

black voters were far poorer, and far more

often poorly educated, than white voters.

JA 28-31. Some 30t of blacks had incomes

below the poverty line, compared to 10t of

whites; conversely, whites were twice as

Iikely as blacks to earn over $20r000 a



13

year. A1most all blacks over 30 years oId

attended inferior segregated schools. JA

29. The district court, concluded that

this lack of income and education made it

d i f f icult for black vot,ers to elect

candidates of their choice. JA 31. n.23.

The record on which the court relied

included extensive testimony regarding the

difficulty of raising sufficient funds in

the relatively poor black community to

meet the high cost of an at-large cam-

paign, which has to reach as many as eight

times as many voters as a single district

campaign. (See notes 107-109, infra).

The ability of minority candidates to

win white votes, the district court found,

$ras also impaired by the common practice

on the part of white candidates of urging

whites to vote on racial lines. JA 33-34.

The record on which the court relied



14

included such appeals in campaigns in

1976, 1980, 1982, and 1983. (See page 115,

infra). In both 1980 and 1983 white

candidates ran newspaper advertisements

depicting their opponents with black

leaders. In 1983 Senator Helms denounced

his opponent for favoring black voEer

registration, and in a 1982 congressional

run-off white voters 'dere urged t,o go to

the polls because the black candidate

would be "bussing" Isic] his "block" Isic]
vote. (See pp. 1 16-18, infra).

The district court, after an exhaus-

t,ive analysis of this and other evidence,

concluded that the challenged multi-member

dist,rict,s had the effect, of submerging

black voters as a voting minority in those

districts, and thus affording them "less
opportunity than ... other members of the



15

electorate to participate in the Political
process a nd t,o elect rePresentatives of

their choice.' JA 53-54.9

SUII{MARY OF ARGUII{ENT

Section 2 of the Voting Rights Act

was amended in 1982 to establish a

nationwide prohibition against election

practices with discriminatory results.

Specifically prohibited are Practices that

afford minorities "Iess opportunity than

other members of the electorate to

part icipate i n the pol it,ical Process and

to elect representatives of their choice".

(Emphasis added). In assessing a claim of

unequal electoral opportunity, the courts

are required to consider t,he "totality of

circumstances'. A finding of unequal

Based on similar evidence the court made a
parallel finding concerning the fracturing
of the minority community in Senate
District, No. 2. JA 54.



't5

opportunity is a factual finding subject

to Rule 52. Anderson v.@

C ity, U. S. (1985).

The 1982 Senate Report specified a

number of specific factors the presence of

which, Congress believed, would have the

effect of denying equal electoral opPor-

tunity to black voters in a majority white

multi-member district. The three-judge

district court below, in an exhaustive and

detailed opinion, carefully analyzed the

evidence indicabing the presence of each

of those factors. In light of the

totality of circumstances established by

that evidence, the trial court concluded

that minority voters were denied equal

electoral opportunity in each of the six

challenged multi-member districts. The

court below expressly recognized that

section 2 did not require proportional

representation. JA 17.



17

Appellants argue her-e r ds they did at

triaI, that the Presence of equal elec-

toral opportunity is conclusively estab-

lished by the fact blacks hton 5 out of 30

at-large seats in 1982, 14 months after

the complai nt $ras f iled. Prior to 1972,

however, although blacks had EUrlr no

blacks had ever been elected from any of

these districts, and in the election held

immediately prior to the commencement of

this action only 2 blacks were elect,ed in

the challenged districts. The district

court properly declined to hold that the

1982 elections rePresented a conclusive

change in the circumstances in the

districts involved, noting that in several

instances blacks ton because of support

from whites seeking to affect the outcome

of the instant litigation. JA 39 n.27.



18

The Solicitor General urges this

Court to read into section 2 a per se rule

that a section 2 claim is precluded as a

matter of law in any district in which

blacks ever enjoyed "proportional repre-

sentation", regardless of whether that

representation ended years dgor was

inext,ricably tied to single shot voting,

or occurred only after the commencement of

the l it igat ion. This .gg se approach is

inconsistent with the "totalit,y of

circumstances' requirement of section 2'

which precludes treating any single factor

as conclusive. The Senate Report ex-

pressly stated that the election of black

off icials was not to be treated, bY

itself, as precluding a section 2 claim.

S. Rep. No. 97-417, 29 n.115.

The district court correctly held

that there rdas suf f iciently severe

polarized voting by whites to put minority



l9

voters and candidates at an additional

disadvantage in the majority white

multi-member districts. On the average

more than 81t of whites do not vote for

black candidates when they run in primary

elections. JA 42. Black candidates

receiving the highest proportion of black

votes ordinarily receive the smallest

number of white votes. Id.

ARGUIT.IENT

SECTION 2 PROVIDES MINORITY VOTERS
AN EQUAL OPPORTUNITY TO ELECT REPRE-
SENTATIVES OF THEIR CHOICE

Two decades ago Congress adopted the

Voting Rights AcL of 1965 in an attempt to

end a century long exclusion of most

blacks f rom the elect.oral process. In

1981 and 1982 Congress concluded that,

despite substantial gains in registration

since 1955, ilinorities still did not enjoy

the same opportunity as whites to parti-

I.



20

cipat,e in the political Process and to

elect representatives of their choicerl0"nd

that further remedial legislation was

necessary to eradicate all vestiges of

discrimination from the PoIitical Pro-

""=".11 
The problems identified by Congress

included not only the obvious impediments

to mi nor itY ParticiPation, such as

registration barriers, but also election

schemes such as those at-Iarge elections

which impair exercise of t,he franchise and

dilute the voting strength of minority

citizens. Although some of Ehese pract,ices

had been correct,ed in certain jurisdic-

tions by operation of the preclearance

provisions of Section 5, Congress con-

S. Rep. li&c. 97-417, 97th
34 (1982) (hereinafter
Report").

Senate RePort 40; H.R.
97t,h Cong . , 1st Sess. ,
inafter cited as "House

Cong., 2d Sess.,
cited as "Senate

Rep. No. 97-227,
3'l (1981) (here-
Report" ) .

10

11



21

cluded that their eradication required the

adoption, in the form of an amendment to

Section 2, of a ggtiogal1 2prohibition

against practices with discriminatory

resu1ts.l3 Section 2 protects not only the

right to vote, but also "the right to have

the vote counted at fuI1 value without

dilution or discount.' Senate Report 'l 9.

A. Leqislative Hist,orY of the 1982
Amendment to Sectr.on z

The Present tanguage of section 2 was

adopted by Congress as Part of the Voting

Rights Act Amendments of 1982. (95 Stat.

1 31 ). The 1982 amendments altered the

Vot i ng Right,s Act i n a number of ways,

12 House Report , 28; Senate Report 1 5.

13 Appellants and the Solicitor General
concede that the framers of the 1982
amendments established a standard of proof
i n vote dilution lawsuits based on
discriminatory results alone. Appellants I

Br. at 16i U.S. Brief II at 8, 13-



22

extending the pre-clearance requirements

of section 5, modifying the bailout

requirements of section 4, continuing

untiJ. 1992 the language assistance

provisions of the Act, and adding a new

requirement of assistance to bIind,

disabled or illiterate voters. Congres-

sional action to amend section 2 was

prompted by this Court, I s decision in

IvlobiIe v. Bolden, 445 U.S. 55, 60-51

( 1 980 ) , which held that the original

language of section 2, as it was framed in

1 965, forebade only election practices

adopted or maintained with a discrimina-

tory motive. Congress regarded the

decis ion in Bo1den as an erroneous

interpretation of section 2r 1 4and thus

acted to amend the language to remove any

such int,ent requirement.

14 House Rep. at 29i Senate Report at 19.



23

Legislative proposals to extend the

Voting Rights Act in 1982 included from

the ouEset language that would eliminate

the intent requirement of 99199 and apply

a total ity of circumstances test to

practices which merely had the effect of

discriminating on the basis of race or

"o1o..1 
5 Support for such an amendment was

repeatedly voiced during the extensive

House hearings and much of this testimony

lras concerned with at-large election plans

that had the effect of diluting the impact

of mi nor i ty rot.". 16 on July 31 t,he House

H.R. 3112r 97th Cong.r 1st Sess., S 201;
H.R. 3198, 97th Cong., lst Sess., S 2.

The three volumes of Hearings before the
Subcorunittee on Civil and Constitutional
Rights of the House Judiciary Committee,
97th Cong., 1st Sess., are hereinafter
cited as "House Hearings." Testimony
regarding the proposed amendment to
section 2 can be found at 1 House
Hearings 18-19, .l38, 197, 229t 365,
424-25r 454, 852i 2 House Hearings 905-07,
993-95, 1279, 1361, 1641i 3 House Hearings
1880, 1991, 2029-32, 2036-37, 2127-28,
2136, 2046-47 , 2051 -58.

15

15



24

Judiciary Committee approved a bill that

extended the Voting Rights Act and

included an amendment to section 2 to

remove the intent requirement imposed by

Bold"rr.17 th. Ilouse version included an

express disclaimer to make clear that the

mere lack of proportional represent.ation

would not constitute a violation of the

law, and the House Report directed the

courts not, to focus on any one fact,or but

17 House Report, 48:

"No voting qualification or prere-
quisite to voting, or standard, practice,
or procedure shall be imposed or applied
by any stat,e or political subdivision Ito
deny or abridgel in a manner which results
in a denial or a

ount of race or
color, or in contravention of the guaran-
tees set forth in sect,ion 4(b) (2) . The
fact that members of a minority gr@

-6E

ffi



25

to look at all the relevant circumstances

in assessing a Section 2 claim. [I. Rep.

at 30.

The House Report set forth the

committee I s reasons for disapproving any

i ntent requirement, and described a

variety of practices, particularly the use

of at-Iarge electionslS.nd linitations on

the times ard places of registrationrl9rith
wLrose potentially discriminatory effects

the Committee was particularly concerned.

On the floor of the House the proposed

amendment to section 2 was the subject of

considerable debate. RepresenEative

Rodino expressly called the attention of

the House to this portion of t.he biIIr20ao

which he and a number of other speakers

18 House Report, 17-19,

19 E. 14, 16, 17, 30,

20 128 Corg. Rec . H 6842
1981).

30.

31 n.1 05.

(daily ed. oct. 2,



gave supPor t.21

26

Proponents of section 2

emphasized its applicability to multi-

member election dist,ricts t,hat diluted

minority votes, and to burdensome regis-

tration ard voting practices .22 A number of

speakers opposed the proposed alteration

to section 2r23and Representative BliIey

moved that the amendment to section 2 be

deleted f rom the llouse bi11. The Bliley

128 Cong. Rec. H 6842 (Rep. Rodino), H

5843 (Rep. Sensenbrenner), H 6877 (Rep.
Chisholm) (daily ed., Oct. 2, 1981) i 128
Cong. Rec. H 7007 (Rep. FasceIl)(dai1y
ed. , Oct. 5, 1 981 ) .

128 Cong. Rec. H 6841 (Rep. Glickman;
dilution), H 5845-5 (Rep. Hydei registra-
tion barriers), H 6847 (Rep. Bingham;
voting practices, dilution); H 6850 (Rep.
Washington, registration and voting
barriers); H 6851 (Rep. Fish, dilution)
(daily ed. , Oct. 2, 1 981 ) .

128 Cong. Rec. H 5866 (Rep. Collins), H

6874 (Rep. Butler)(daily €d., Oct. 2,
1981); 128 Cong. Rec. H 6982-3 (Rep.
Bl iley) r H 6984 (Rep. ButIer, (Rep.
DlcClory) , H 5985 (Rep. Butler) (daily ed. ,
Oct. 5,'1981).

21

22

23



27

amendment tras defeated on a voice ,rote.24

FoIlowing the rejection of that and other

amendments the House on October 5, 1981

passed the bill by a margin of 389 t.o 24.25

On December 16, 1981, a Senate bill

essentially identical to the House passed

bi 11 was i ntroduced by Senator tilathias.

The Senate bill, S.1992t had a total of 61

init,ial sponsors, far more than were

necessary to assure passage. 2 Senate

Ilearings 4, 30, 157. The particular

subcommittee to which S.1992 was referred,

however, was dominated by Senators who

were highly critical of the Voting Rights

Act, amendments. After extensive hear-

128 Corg. Rec.
5, 1981).

Id. at H5985.

It 698 2-85 ( daily ed . I Oct .24

25



28

ingsr26mo"t of them devoted to section 2,

the subcommittee recommended passage of

5.1992, but by a margin of 3-2 voted to

delete the proposed amendment to section

2. 2 Senate Hearings 10. In .the full

committee Senator DoIe proposed language

which largely restored the substance of S.

1992; included in the Dole proposal was

the la nguage of sect ion 2 as i t rrras

ultimately adopted. The Senate Commmittee

issued a lengthy report describing in

detail the purpose and impact of the

section 2 amendment,. Senate Report 15-42.

The report expressed concern with two

distinct types of practices with poten-

tially discriminatory effects--first,

restrictions on the times, places or

26 Id. Hearings before the Subcommitee on
EE-e Constitution of the Senate Judiciary
Committ,ee on S. 53, 97th Cong . , 2d Sess .
( 1 982 ) (hereinafter cited as "Senate
Hearings" ) .



29

methods of registration or voting, the

burden of which would fall most heavily on

mincritierr2T and, second, election systens

such as those multi-member districts which

reduced or nullified the effectiveness of

minority votes, and impeded the ability of

minority voters to elect candidates of

their choice.28 The Senate debates leading

to approval of the section 2 amendment

reflected similar concern".29

The Senate report discussed the

various types of evidence that, would bear

on a section 2 claim, and insisted that

t,he courts lrere to consider all of this
evidence and t,hat no one type of evidence

Senate Report, 30 n.119.

Senate Report, 27-30.

128 Corrg. Rec. S 6783 (daily ed. June 15,
1982)(Sen. Dodd); 128 Cong. Rec. S 7111
(dai1y ed. June 18, 1982) (Sen. Met-
zenbaum), S7113 (Sen. Bentsen), S 7116
(Sen. Weicker), S 7137 (Sen. Robert
Byrd).

27

28

29



30

should be treated as conclusirr..30 Both the

Senate Report and the subsequent debates

make clear that it was the intent of

Congress, in applying t'he amended section

2 to multi-member districts, to reestab-

Iish what it understood to be the totality

of circumstances test that had been estab-

lished by White v.Regester, 412 U.S. 755

(19731r31and that had been elaborated uPon

by the lower courts in the years between

white and Bolden.32 The most important and

frequently cited of the courts of appeals

dilution cases was Zimmer v. t'lcKeithenr33

30 senate Report., 23, 27.

31 Senat,e Report, 2, 27, 28, 30, 32.

32 Senate Report, 16, 23, 23 n.78, 28, 30,
31, 32.

33 Zirmner was described by the Senate Report
?-s-f'seminal" decision, id. at 22, and
was cited 9 times in the n$ort. a|. at
22, 24, 24 n.86, 28 n.112, 28 n.113, 29
n. 1 1 5, 29 n. 1 1 5, 30, 32, 33. Senator
DeConcini, one of the framers of the Dole
proposal, described Zimmer as " [p]erhaps
the clearest expressioTaSFthe standard of



31

485 F.2d 1297 (5th Cir. 1973) (en banc),

aff'd sub nom. East Carroll Parish School

Board v. Marshall, 424 U.S. 536 (1975).

The decisions applying White are an

important source of guidance in a section

2 dilution case.

The legislative history of section 2

focused repeatedly on the Possibly

d iscriminatory irnpact of multi-member

districts. Congress was specifically

concerned that, if there is voting along

racial Iines, black voters in a majoriEy

white multi-member district would be

unable to compete on an equal basis with

whites for a role in electing public

officials. Where that occurs, the white

majority is able to determine the outcome

of elections and white candidates are able

proof in these vote
Cong. Rec. 55930
1982).

dilution cases." 128
(daily ed. June 17,



32

to take positions without regard to the

votes or preferences of black voters,

rendering the act of voting for blacks an

empty and ineffective ritual. The Senate

ReporL described in detail the types of

circumstances, based on the White/Zimmer

factors, under which blacks in a multi-

member district would be less able than

whites to elect representatives of their

choice. Senate Report | 28-29.

The Solicitor General, in support of

his contention that a section 2 claim may

be decided on the basis of a single one of

the seven Senate Report factors--electoral

success--regardless of t.he totalit,y of the

circumstances, offers an account of the

legislative hist,ory of sect,ion 2 which is,

in a number of respects, srUstantially

i naccurate . F irst, t,he Sol icitor assert,s

that, when the amended version of S. 1992

was reported to the full Judiciary



33

Committee, there was a "deadlock.' U.S.

Br. I, 8; Br. II, I n.12. The legislative

situation on ltay 4, 1982 when the Dole

proposal was offered, could not conceiv-

ably be characterized as a "deadlockr " and

rdas never so described by any supporter of

the proposal. The entire Judiciary

Committee favored reporting out a biIl

amending the Voting Rights Act, and fully

two thirds of the Senate was committed to

restori ng t,he House results test if Ehe

Judiciary Committee failed to do so.

Critics of the original 5.1992 had neither

the desire nor the votes to bottle up the

bill in Committeer34.nd clearly Iacked the

votes to defeat the section 2 amendment on

the floor of the Senate. The leading

34 2 Senate Hearings
( " IW] hatever happens
amendment, I intend to
reportiry of the Voting
Committee" )

69 (Sen. Hatch)
to the proposed

support favorable
Rights Act by this



34

Senate opponent of the amendment. acknowl-

edged that passage of the amendment had

been foreseeable "for many months" prior

to the fuI1 Committee's action.35 senator

Dole commented, when he offered his

proposal, that "without any change the

House biI1 would have passed." 2 Senate

Hear i ng s 57 . Both supportets36arrd oppo-

nent"37of section 2 alike agreed that t,he

2 Senate Hearings 69 (Sen. Ilatch).

Senate Report, 27 (section 2 "faithful to
the basic intent" of the House bill); 2
Senate Hearings 60 (Sen. DoIe) (" IT]he
compromise retains the results standards
of the Dlathias/Kennedy bi11. However' we
also feel that the legislation should be
strengthened with additional language
@hat 1egal standard should
apply urder the results test. . .') ( Empha-
sis added) r 61 (Sen. Dole) (language
"strengthens the House-passed bill') 68
(Sen. Biden) (new language merely "clari-
fiestr S.1992 and "does not change much"),
128 Cong. Rec. 56960-61 (dai1y ed. June
1-l , 1982) (Sen. DoIe) ; 128 Cong. Rec.
H3840 (daily ed. June 23, 1982)(Rep.
Edwards).

2 Senate Hearings 70 (Sen. Hatch)(rThe
proposed compromise is not a compromise at
all, in my opinion. The impact of the

35

36

37



35

language proposed by Senator Dole and

ultimately adopted by Congress was

intended not to water down the original

llouse bill, but merely to spel1 out more

expl ici t,ly Ehe intended meaning of

legislation already approved by the
38

HOUSe.

The Solicitor urges the Court to give

Iittle weight, to the Senate RePort

accompanying 5.1992, describing it as

proposed compromise is not likely to be
one whit different than the unamended
House measure" relating to sect,ion 2i
Senate Report, 95 (additional views of
Sen. Hatch); 128 Cong. Rec. (daily ed.
June 9, 1982) S 6515, S.6545 (Sen. Hatch);
128 Cong. Rec. (daily ed. June 10, 1982) S

6725 (Sen. East)i 128 Cong. Rec. (dai1y
€d., June 15, 1982) S.6786 (Sen. Harry
ayrd).

38 The compromise language was designed E,o

reassure Senate cosponsors that the White
v. Regester totalit,t of circumstancefEESE
Ei-d6ffi1- in the House, and espoused
throughout the Senate hearings by sup-
porters of the House passed bi11, would be
codified in the statute itself. 2 Senate
Hearings 60; SenaEe RePort, 27.



35

merely the work of a faction. U.S. Br. I,
8 n. 6 i U. S. Br. II, 8 n.12, 24 n.49.

Nothing in the legislative history of

section 2 supports the Solicitorts
suggestion that this Court should depart

from the long established principle that

committee reports are to be treated as the

most, authoritative guide Lo congressional

intent. Garcia v. United States, 1 05

S.Ct . 479 , 483 ( 1 984) . Senator DoIe, to

whose position the Solicitor would give

particular weight, prefaced his Additional

Views with an acknowledgement that n[T]he

Committee Report is an accurate st,atement

o f the i nt.e nt of S . 1 992 r ds reported by

the committee. "39 on the floor of the

Senate both supporters and opponents of

39 Senate Report 193; see also id. at 196 ("I
express my views not to ta'k-e issue with
the body of the report") 199 ("I concur
with the interpretation of this action in
the Committee Report.tr), 196-98 (addi-
tional views of Sen. Grassley).



37

section 2 agreed t,hat the Comrnittee report

constituted the authoritat,ive explanation

of the legislatior,.40 until the f il ing of

its briefs in this case, it was the

consistent contention of the DepartmenE of

Justice that in interpreting section 2

" It] he Senate Report. .. is entitled to

greater weight than any other of the

legislative history."4l only in the spring

of 1985 did the Department reverse its

position and assert that the Senate report

uras merely the view of one faction that

128 Corg. Rec. 55553 (daily ed., June 9,
1982)(Sen. Kennedy); S5646-48 (dai1y ed.
June 10, 1982) (Sen. Kennedy); S6781 (Sen.
Dole)(daily ed. June 15, 1982\i S6930-34
(Sen. DeConcini), S6941-44, 56957 (Sen.
uathias), S6960 | 6993 (Sen. Dole) , 56967
S699 1 -93 (Sen. Stevens) r S6995 (Sen.
Kennedy) (daily ed. June 17 , 1982) i
S7091-92 (Sen. Hatch), S7095-96 (Sen.
Kennedy) ( daily ed. , June 1 8, 1 982 ) .

Post-Trial Brief for the United States of
America, County Council of Sumter County,
South C

40

41



38

"cannot be taken as determinat.ive on all

counts." U.S. Br. I, P. 24, n.49. This

newly formulated account of the legisla-

tive history of section 2 is clearly

i ncorrect .

The Solicitor urges that substantial

weight be given to the views of Senator

Hatchr42 .rd his legislative assistant.43 rn

fact, however, Senator Hat.ch was the most

i ntrans ig ient congressional critic of

amended section 2, and he did not as the

In an amicus brief in Citv Council of the
cit,y of chicago v. Kem

in this case,
U.S. Br. II 21 n.43, the Solicitor asserts
that Senator Hatch "supported the com-
promise adopted by Congress." Brief for
United States as Amicus, 16 n.15.

The Solicitor cites for a supposedly
authoritative summary of the origin and
meanirg of section 2 an article written by
Stephen l.larkman. U. S. Br . II , 9 | 10.
l'1r. l'larkman is the chief counsel of the
Judiciary Subcommittee chaired by Senator
Hatch, and $ras Senator Hatch I s chief
assistant in Hatch I s unsuccessful opposi-
tion to the amendment to section 2.

42

43



39

SoI icitor suggests support the Dole

proposal. On the contrary, Senator Hatch

urged the Judiciary Committee to reject

the DoIe proposalr44and was one of only

four Committee. members to vote against

it.45 rollowing the Committeers action,

Senator Hatch appended to the Senate

Report Additional Views objecting to t'his

modified version of section 2.46 on the

f loor of the Senate, S€nator Hat'ch

supported an unsuccessful amendment that

would have struck from the bill the

amendment to section 2 that had been

adopted by the Committe. r 4T"nd again

denounced the Ianguage which eventually

44 2 senate Hearings 7o-74.

45 E. 85-86.

46 Senate Report, 94-101.

47 128 corg. Rec. s6965 (daily ed. June
1 982) .

17,



40

became 1.r0.48

Finally, the Solicitor urges that the

views of the PresidenL regarding section 2

should be given "particular weight"

because the President endorsed the Dole

proposal, and his "support for the

compromise ensured its passage." U.S. Br.

I, I n.6. we agree with the SoIicitor

General that the construction of section 2

wh i ch t,he Department of Justice now

proposes in its amicus brief should be

considered in light of the role which the

Administration played in the adoption of

this legislation. But that role is noL,

as the Solicitor asserts, one of a key

sponsor of the legislation, without whose

48 Inrnediately prior to the f inal vote on the
bilI, Senator Hatch stated , " these
amendments promise to effect a destructive
transformation in the Voting Rights Act."
128 Corg. Rec. 57139 (dai1y ed. June 18,
1982) i 128 Cong. Rec. (daily ed. June 9,
1982) S6s06-21.



4'.|

support the bill could not have been

adopted. On the contrary, the Adminis-

tration in general, and the Department of

Justice in particular, were throughout the

legislative process among t,he most consis-

tent, adamant, and outsPoken oPponents of

the proposed amendment, to sect,ion 2.

Shortly af ter t,he passage of the

House bi11, the Administration launched a

concerted attack on the decision of the

House to amend section 2. On November 6,

1981, the President released a statement

denouncing the "new and untested reffectsr

standard, " and urging that sect.ion 2 be

I imi ted to instances of purposeful

d iscrimination, 2 Senate Hearings 763,

a posiIion Mr. Reagan strongly reaffirmed

at a press conference on December 17.49

When in January 1982 the Senate commenced

49 New York Times, Dec. 18,
coI. 4.

1981, p. 87,



42

hearings on proposed amendments to the

Voting Rights Act, the Attorney General

appeared as the first witness to denounce

section 2 as " just bad legislationr "

objecting in particular to any proposal to

apply a results standard to any state not

covered by section 5. 1 Senate Hearings

7 0-97 . At che close of the Senate

Heari ngs i n early t'tarch t,he Assistant

Attorney General for CiviI Rights gave

extensive testimony in opposition to the

adoption of the Eotality of circumstances,/

results test. f1|.r ot 1555 et seg. Both

Justice Department officials made an

effort to solicit public opposition to the

results test, publishing critical analyses

in several national newspapet"So.nd, in the

50 2 Senate Hearings 770 (Assistant At-
torney General Reynolds) (Washington
Post), 774 (Attorney General Smith) (

Op-ed art,ic1e, New York Times), 775
(Attorney General Smith) ( Op-ed article,
Washington Post).



43

case of the Attorney General, issuing a

warning to members of the United Jewish

AppeaI that adoption of a results test

would lead to court ordered racial quo-

tas.51 The l{hite House did not endorse the

DoIe proposal until afEer it had the

support of 1 3 of the 1 I members of the

Judiciary Committee and Senator Dole had

war ned publ icly that he had the vot,es

necessary t,o override any ,r.to.52

Having failed to persuade Congress to

reject a results standard in section 2,

the Department of Justice now seeks to

persuade this court to adopt an interPre-

t,ation of section 2 that would severely

limit, the scope of Ehat provision. Under

these unusual circumstances the Depart,-

Id. at 780.

Los Angeles Times, l,!ay
S t,reet Journal , Miy
Senate Hearings 58.

4, 1982, p. 1; Wall
4, 1982r p. 8; 2

51

52



44

ment I s vierrs do not appear to warrant the

weight that might ordinarily be appro-

priate. We believe that greater deference

should be given to the views expressed in

an amicus brief in this case by Senator

Dole and the other principal cosponsors of

section 2.

B. Equal Electoral Opportunity is

Section 2 provides that a claim of

unlawful vote dilution is established Lf,

"based on the totality of circumstancesr"

members of a racial minority "have less

opportunit,y Ehan other members to partici-
pate in the political process and t,o elect
representatives of their choice."53 In the

instant case the district court concluded

that minority vot,ers lacked such an equal

opportunity. JA 53-54.

53 42 u.s.c. s
forth in the

1973, Section 2(b) is set
opinion below, JA 13.



45

Both appellants and the Solicitor
General suggest, however, that section 2

is limited to t,hose extreme cases in which

the effect of an at-large election is to

render virtually impossible the election

of public officials, black or otherwise,

favored by minority voters. Thus appel-

Iants assert that section 2 forbids use of

a multi-member district when it,'effec-
t,ively locks the racial minority out of

the poI i t i ca1 forum, ' A. Br . 44 , or
rshut IsJ racial minorities out of the

electoral process' fg. at 23. The SoIi-

citor invites the Court to hold that

section 2 applies only where minority

candidat,es are neffectively shut out of

the political Process' . U. S. Br . I I 27 i

see also ig. at 11. On this view, the

election of even a single black candidate

would be fatal to a section 2 claim.



46

The requirements of section 2 t

however, are not met by an election scheme

which merely accords to minorities some

minimal opportunity to participate in the

political process. Section 2 requires

that, rthe polit,ical processes leading to
nomination or election" be, not merely

open to minority voters and candidates,

but "agr.1}g open". (Emphasis added). The

prohibition of section 2 is not limited to

those systems which provide minorities
with no access whatever to the political
process, but extends to systems which

afford minorities "less opportunity than

other members of the electorate to

participate in the political process and

to elect representatives of their choice.'

(Emphasis added).

This emphasis on equality of opportu-

ni ty was re iterated throughou E the

legislative history of section 2. The



47

Senate rePort insisted repeatedly that

section 2 required equality of political

opportunity.54 Senator DoIe, in his

54 s. Rep. 97-417, P. 16 ("equal chance to
participate in the electoral process'i
nequal access to the electoral process" )
2O ( "equal access t,o the political
process"; at-large elections invalid if
ttrey give minorities "less opPortunity
than ... other residents to participate in
the political processes and to elect
legislators of their choice"), 21 (pIain-
t,iffs must prove they "had less opportu-
nity than did other residents in the
district to participate in the political
processes and to elect legislators of
their choice") , 27 (denial of "egua1
access to the PoIitical process"), 28
(minority voters to have "the same
opportunity Eo participaEe in the politi-
cal process as other citizens enjoy";
minorit,y voters entitled to "an equal
opportunity to ParticiPate in the
politcal processes and to elect candi-
dates of their choicen), 30 ("denial of
equal access to any phase of the electoral
process for minority voterstr; standard is
whether a challenged Practice noperated
t,o deny the minority plaintif f an equal
opportunity to participate and elect
candidates of their choicerr I pEocess must,
be "equally open to participation by the
group in question"), 31 (remedy should
assure'equaI opportunit,y for minority
citizens to participate and to elect
candidates of their choice" ) .



48

Additional Vielrs, endorsed the committee

report, and reiterated that under the

language of section 2 minority voters were

to be given "the same opportunity as

ot,hers Lo participate in the political

process and t,o elect the candidates of

their choice".55 Senator Dole and others

repeatedly made this point on the floor of

the senate.55

The standard announced in White v.

Regester was clearly one of equal oppor-

tunity, prohibiting at-1arge elections
which afford minority voters "less
opportunity than ... other residents in

Id. at 194 (emphasis omitted); See qlsp
ila. ar 193 ( ncitizens of arl r666s-5'E
Ettitled to have an equal chance of
electing candidatesof their choic€. .. . " ) 7

194 ("equal access to the political
process).

128 Cong. Rec. S6559 , S5560 (Sen.
Kennedy)(daily ed. June 9, 19821i daily
ed. June 17, 1982) i 128 Cong. Rec.
571 1 9-20 (Sen. Dole) , (daily ed. June 18,
1982).

55

55



49

the district to ParticiPate i n the

political processes and to elect Iegisla-

tors of their choice.n 412 U.S. at 765-

(Emphasis added) . The Sol icit.or General

asserts that during the Senate hearings

three supporters of section 2 described it

as "merely a means of ensuring that

minorities were not effectively rshut outl

of the electoral process". U.S. Br. II,

11. This is not an accurate descript'ion

of the testimony cited by the Solicitot.57

57 David Walbert stated that minority
voters had had "no chance" to win elec-
Eions in their earlier successful
dilution cases, 1 Senate Hearings 625,
but also noted that the standard under
White was whether minority voters had anf6EEI opportunity" to do so. Id. Senator
Keinedy- -statea tnat under -FecLion 2

minorities could not be "effectively shut
out of a fair opportunity to participate
in the el€J lon". Id. al 223. Clearly a
'fair" opportunit[is more than any
minimal opportunity. Armand Derfner did
use the words "shut out", but not, as the
Solicitor does, Eollowed by the clause "of
the political process'. Id. at 810. More
importantly, both in hisnral statement
(id. at 796, , 800) and his PrePared
sFatemenL (id. at 811, 818) Mr. Derfner



50

Eve n i f i t. hrere, the remarks of three

witnesses would carry no weight where they

conflict with Ehe express language of the

bi11, the committee rePort, and the

consistent statements of supporters. Ernst

and Ernst v. Hochf elder, 42 5 U. S . '185, 204

n.24 (1976).

c. The Election of Some Minority
e1y

The central argument advanced by the

Solicitor General and the appellants is

t,hat the election of a black candidate in

a multi-member district conclusively

establishes the absence of a section 2

violation. The Solicitor asserts, U S.

Br. I 13-14, that it is not sufficient

that there is underrepresentation now, or

expressly endorsed t,he equal opportunity
standard.



51

that there rrras underrePresentation for a

century prior to the filing of the action;

on the Solicitorrs view there must at all

times have been underrepresentation. Thus

the Solicitor insists there is no vote

dilution in Senate District 22, which has

not elected a black since 1978, and that

there can be no vote dilution in House

District 36, because, of eight rePresen-

tatives, a single black, the first this

centuEyr was elected there in 1982 after

this litigat,ion was filed.

This interpretation of section 2 is

plainly inconsistent with t,he language and

legislative history of the statute.

Section 2(b) directs the courts t,o

co ns ider " t,he total ity of circumstances, rr

an admonition which necessarily Precludes

giving conclusive weight to any single

circumstance.58 The "totality of circum-

58 rhe solicitor I s argument also flies in the



52

stances" standard was taken from White v.

Sj,lgester, which Congress intended to

codify in sect,ion 2. The House and Senate

reports both emphasize the importance of

considering the totality of circumstances,

rather than focusing on only one or two

portions of the record. Senate Report 2'l ,

34-35; House Report, 30. The Senat,e

Report sets out a number of "[t]ypical"
factors to be considered in a diluLion

""""r59 
of which "the extent to which

members of the minority grouP have been

face of the language of section 2 which
disdvows any intent to establish propor-
tional representation. On the Solicitorrs
view, even if there is in fact a denial of
equal opportunity, blacks cannot prevail
in a section 2 action if they havet ot
have ever had, proportional representa-
tion. Thus proportional representation,
spurned by Congress as a measure of
liability, would be resurrected by the
Solicitor General as a type of affirmative
defense.

The factors are set out in the opinion
below. JA 1 5.

59



53

elected to public office in the juris-

diction" is only one, and admonishes

"there is no requirement that any partic-

ular number of factors be proved r oE that

a majority of t,hem point one lray or the

other." Senate Report 28-29.50 Senator

DoIe, in his additional views accompanying

the committee report, makes this p1ain.

"The extent t,o which members of a pro-

tected class have been elected under the

challenged practice or struct,ure is just,

one factor, among the totality of circum-

stances to be considered, and is not

dispositive. "

added).51

Id. at 1 94. ( Emphas i s

See also Senate Report 23 ("not every one
of the factors needs to be proved in order
to obtain reliefn).

128 Cong. Rec. 56961 (daily ed. June 17,
1982) (Sen. Dole); 128 Cong. Rec. S7119
(daily ed. June 18, 1982) (Sen. Dole).

50

51



54

The arguments of apPellants and the

Solicitor General t,hat any minority

electoral success should foreclose a

section 2 claim erere expressly addressed

and rejected by Congress. The Senate

Report explains, "the election of a few

minority candidates does not I necessarily

foreclose the possibilit,y of dilution of

the black vote.r" Iq. at 29 n.115. Both

White v. _Regester and its progeny, as

Congress well knew, had rePeatedly

disapproved the contention now advanced by

appellants and the solicitor.52 rn wLite

itself, as

total of two

the Se na t.e Repor t no ted , a

blacks and five hispanics had

62 "The results test, codified by the
committee bi11, is a well-established
one, familiar to the courts. It has a
reliable and reassuring track record,
which completely belies claims that it
would mal<e proportlonal rePresent,ata-

-
Cong. Rec.

55559 (Sen. Kennedy) (daily ed. June 9,
1982).



55

been elected from the two multi-member

districts invalidated in that case. Senate

R.eport 22. Zimmer v. l.tcKeithen, in a

passage quoted by the Senate Report, had

refused to treat 'a minority candldate's

success at the polls [a]s conclusive." E.
at 29 n.115. The decision ln Zimmer is

particularly important because in that

case the court ruled for the plaintiffs

despite the fact that blacks had vron

two-thirds of t,he seats in the most, recent

at-large election. 485 F.2d at 1314. The

dissenters in Zimmer unsuccessfully made

the same argument now advanced by appel-

Iants and the Solicitor, insisting nt'he

election of three black candidates .oo

pretty well explodes any notion that black

vot.ing strength has been cancelled or

minimized". 485 F.2d at 1 31 0 (CoIeman,

J., dissenEing). A number of other

lower court cases implementing white had



55

also refused to attach conclusive weight

to the election of one or more minority

candidates.63

There are, as Congress anticipated, a

variety of circumstances under which the

election of one or more minority can-

didates might occur despite an absence of

TrrsT " See also Senator Hollings'
@mnents on the district court decision in
!lcCain v. Lybrand, No.74-281 (D.S.C.
AEfifT7,]T6-f)TTTnd ing a vot,i ng rights
violation despite some black participation
on the school board and other bodies. 128
Cong. Rec. 56865-66 (daily ed. June 16,
1975). In post-1982 section 2 cases, the
courts have also rejected the contention
that the statute only applies where
minorities are completely shut out. See
e. g. , jlnlleg Lt,ates y. _tularelngo_ CouiEJ
Fnrmissiffi3tgvaaula^ggfvrar, J a r .39 tJav, aJ, a ra \

ffiTgBE), cert. denied, 105 s.ct. 375
725
v.

63 Xirksey v. Board of Supervisors, 554 F.2d
Cross v.

Baxter, 604 F.2d 875, 880 n.7, 8EfTsEfr.
eT?1-1 979); united states v. Board of
Supervisors o

allace v.
House , 51 5 F. 2d 619 , 623 n. fTSEE-eIIl



57

the equal electoral opportunity required

by the statute. A minority candidate

might simply be unopposed in a primary or

general election, or be seeking election
in a race in which there were fewer white

candidates than there were positions to be

fi1led.54 whit" officials or political

64 The solicitor General suggests that the
very fact that a black candidate is
unopposed conclusively demonst,rates that
the candidate or his or her supporters
were simply unbeaEable. U.S. Br. II, 22
n.46, 33. But the number of white
potential candidates who choose to enter a
particular at.-Iarge race may well be the
result of personal or political considera-
tions entirely unrelated to the circum-
stances of any minority candidate.
Evidence that white poLential candidates
were deterred by the perceived strength of
a minority candidate might be relevant
rebuttal evidence in a section 2 action,
but here aPPellants offered no such
evidence to explain the absence of a
sufficient number of white candidates to
contest all the at-large seats. llore-
over, in other cases, the Department of
Justice has urged courts Lo find a
violationof section 2 notwithstanding the
election of a black candidate running
unopposed. See United Stat,es v. Marengo
Count,y Commiss
@indings of Fact and
Conclusions of taw for the United States,



58

leaders, concerned about, a pending or

threatened section 2 action, might

engineer the election of one or more

minority candidates for the purpose of

preventing t,he imposition of single member

district".55 The mere fact that minority

candidates vrere elect,ed would not mean

t,hat those successful candidates were the

represent,atives preferred by minority

filed June 21, 1985, P. 8.

65 zimmer v. t{cKeithen, 485 F.2d at 1307:

nsuch success might, on occasion, be
attributable to the work of Poli-
ticians, who, apprehending that the
support of a black candidate would
be politically expedient, campaign
to insure his election. Or such
success might be attributable to
political support motivated by
d i f fere nt considerations--namely
that election of a black candidate
will thwart successful challenges to
eleetoral schemes on dilution
grounds. In either situation, a
candidate could be elected despite
the relat ive poI i t ical backward ness
of black residents in the electoral
district. "



59

voters. The successful minority candi-

dates might have been the chrrice, as in

White v. Regester, 412 U.S. at 755i Senate

Report, 22, of a white political organiza-

t,ion t ot might have been able to win and

retain office only by siding with the

white community on, or avoiding entirely,

those issues about which whites and

non-whites disagreed. Even where minority

voters and candidates face severe inequal-

ity in opportunity, there will occasion-

aIly be mi nor ity cand idates able to

overcome those obstacles because of

exceptional ability or "a rstroke of luck'

which is not likely to be repeated...."56

The election of a black candidate rnay

also be the result of nsingle shooting",

which deprives minority voters of any vote

at all in every at-large election but one.

55 Wallace v. House, 515 F.2d 619, 623 n.2
ffi



60

In multi-member elections for the North

Carolina General Assembly where there are

no numbered seats, voEers may typically

vote for as many candidates as there are

vacancies. Votes which they cast for their

second or third f avorit,e candidates,

howeverr rndy result in the victory of that

candidate over the votersr first choice.67

Where voting is along racial 1ines, the

only way minority voters may have to give

preferred candidates a serious chance of

victory is to cast only one of their

ballotsr or "single shootr" and relinquish

any opportunity at all to influence the

57 tfris is especially true in North Carolina
where, because of the multiseat electoral
system, a candidate may need vot.es from
more than 50t of the voters to win. For
example, in the Forsyth Senate primary in
1980, there were 3 candidates for 2 seats.
If the votes were spread evenly and all
voters voted a fu11 slate, each candidate
would get votes from 2/3 or 672 of the
voters. In such circumstances it would
take votes from more than 67* of the
voters to win. N.C.G.S. 163.111(a)(2).



61

election of the other at-1arge officia1s.6S

Where single shot voting is necessary

to elect a black candidate, black voters

are forced to limit t.helr franchise in

order to compete at all in the polit.ical

process. This is the functional equiva-

lent of a rule which permitted white

voters to cast five ballots for five

at-large seats, but required black voters

to abnegate four of those ballots in order

to cast one ballot for a black candidate.

68 For example, in 1978, in Durham County,
99t of the black voters voted for no one
but the black candidat,e, who won. JA Ex.
VoI. I Ex. 8. In Wake CountY in 19781
approximately 80t of the black voters
supported the black candidate, but
because not enough of them single shot
voted the black candidate lost. The next
year, after substantially more black
voters concentrated their votes on the
black candidate, forfeiting their right to
vote a fu1I slate, the f irst black eras
elected. Similar1y in Forsyth County when
black voters voted a ful1 slate in 1980,
the black candidate lost. It was only
after many black voters declined to vote
for any white candidates that black
candidates were elected in 1982. Id.



62

BIack voters may have had some oPportunity

to elect one representative of their

choice, but they had no oPPortunitY

whatever to elect or influence the

election of any of the other representa-

tives.69 Even where the election of one or

more blacks suggests the possible exis-

tence of some electoral opportunities for

minorities, the issue of whether those

opportunities are the same as the oPpor-

59 Ttrere is no support for appellants' claim
that whit.e candidates need black support
to win at-Iarge. Black votes were not
important for successful white can-
didates. Because of the necessity of
single shot vot,ing, in most inst,ances
black voters were unable to affect the
outcome of other than the races of the few
bI acks who vron. For example, white
candidates in Durham erere successf uI with
only 5t of the votes cast by blacks in
1978 and 1982, in Forsyth, white can-
didates in 1980 who received less than 2t
of the black vote were successful, and in
Mecklenburg in 1982, the leading white
se nate candidate won t,he general
election although only 58 of black voters
vot,ed f or h im. Id . See , JA 244.



63

tunities afforded to whites can only be

resolved by a distinctly local appraisal

of all other relevant evidence.

These complex Poss ib i I i t ies make

clear t,he wisdom of Congress in requiring

that a court hearing a section 2 claim

must consider " the tot,al ity of circum-

sEancesr' rather than only considering the

extent to which minority voters haver oE

have noE, been underrepresented in one or

more years. Congress neither deemed

conclusive the election of minority can-

didates, nor directed that such vic-

tories be ignored.T0 The language and

legislative history of sect,ion 2 recognize

the potential significance of t,he election

70 As in other areas of civil rights, the
results test in section 2 no more requires
proof thaE no blacks ever win elections
than the effect rule in Title VII requires
that no blacks can ever Pass a particular
non-job related test. See Connecticut
v. TeaI , 457 U.S. 440 (1982):-



64

of minority candidates, but require that

the significance of any such elections be

carefully assessed from a local vantage in

order to determine what light, if dny,

those events shed, in the context of all

relevant circumstances, on the section 2

claim at issue.

II. THE DISTRICT COURT REQUIRED NEITHER

ffifficcEss

Appellants flatIy assert that the

district court in this case interpreted
section 2 Eo 'creatIe] an affirmative
entitlement, to proportional representa-

tion" . A. Br. 1 9. The district court

opinion, however, simply contains no such

construction of section 2. On the

contrary, the lower court expressly held

that section 2 did not require pro.oor-

tional representation, emphasizing that

"the fact that blacks have not been



65

elected under a challenged districting

plan in numbers Proportional to their

percentage of the population" "does not

alone establish that vote dilution has

resulted. " JA 1'7 .

Appellants suggest in the alternative

that the district court "apparently'r

equated the equal opportunit,y required by

section_ 2 wi t,h "guaranteed electoral

successr" A. Br. 14, 15, 35. Again, how-

everr Do such rule of law is espoused in

any portion of the opinion beIow. The

ultimate factual findings of the district

court are not cast in terms of the lack of

any such guarantee; rather the trial court

concluded that, sect,ion 2 had been violated

because minorit.y voters had "Iess opportu-

nity than do other members of the electo-

rat,e to participate in the political

process and to elect representat,ives of

their choice. " JA 54.



66

The Solicitor argues that, because

t,he facts as he personally views them did

not violate section 2t the t,hree trial

judges must have been apPlying an incor-

rect, Erlbeit unspoken, interpretation of

section 2. Thus the Solicitor asserts that

since the trial court

. could not reasonablY have found a
violation under the ProPer
standard , I it] rather must impl icit-ly
have sought to guarantee E?itTiIEA
minority electoral succesg. (U.S. Br.
II, 7l (Emphasis added). / I

But the district court, whether or not t,he

Solicitor thinks it reasonable, found as a

matter of fact that blacks do not enjoy

t,he same opport,unity as whites to part,ici-

pate I n the po1 itical process . The

71 See also U.s. Br. !, 12 (in light of
Solicitorts view of the facts, misinter-
pretation of the law is "the only expla-
nation for the distrlct court I s conclu-
sion", 18 n.19 (district court "ineffect"
i nt,erpre ted sect ion 2 as impos i ng a
"proportional representation plus' stan-
dard).



67

Solicitor's argument is simply an attempt

to transform a disagreement about the

relevant facts, a disagreement in which

the trial court I s findings would be

subject to Rule 52, into an issue of law.

If the trial court's factual findings are

clearly erroneous they can, of course, be

reversed on appeal. But if both those

factual findings and the lega1 principles

announced by the district court are sound,

the resulting judgment cannot be over-

t u r ned by hypothes i z i ng t,hat the three

trial judges here were purposefully

applying legal principles different than

those actually set forth in their opinion.

Although the trial court expressly

const.rued section 2 not, to require

proportional representation, appellants

suggest, A. Br. 19-20, that the lower

court implicitly announced that it was

,f
"l



68

applying just such a requirement in the

following passage:

The essence of racial vote dilution
in the White v. Regester sense is
this: tE?:Effiuse of the
interaction of substantial and
persistent racial polarization in
votlng patterns (racial bloc voting)
with a challenged electoral mechan-
ism, a racial minority with dis-
tinctive group interests that are
capable of aid or amelioration bY
government is effectively denied the
political power to further those
interests that numbers alone would
presumptivelY, see United Jewish
6rqa nilat ioni tr-- cffiTiff-ft
TAi[ ve it in a
voting constituency not raciallY
polarized in its voting behavior.
See Nevett v. Sides, 571 F.2d 209,
7r3'ffi1978). JA 16.

This passage, which is immediatelY

preceded by discussion of the totality of

circumstances test, and followed by an

exposition of the statutory disclaimer

prohibiting proportional representation,

asserts only that, in the absence of vote

dilution, black voters would possess t,he



69

ability to influence the policies of their

elected officials, not, as aPPellants

cIaim, that black voters would be cert'ain

to elect black officials "in proportion to

their Presence in the population"' A' Br'

20. The portion of \evett v. Sides

referred to by the district court dis-

cusses the extent to which black voters'

in the absence of polarized voting, would

have the political power to assure that

their interests were protected by white

of f icial ,.72

APpellees in this case did not seek,

and the tri.a1 court did not requit",?3 any

72

73

Nevett v. Sides, 571 F.2d at 223 n'16'

Indeed appellants proPosed the plan.now in
effect i6r aII the districts at issue,
which was adopted by the court without
modification. See suPra, at 5-6'



70

guarantee of proportional representation,

and proportional representation did not

result from the decision belon.74

III. THE DISTRICT COURT APPLIED THE
CORRECT STANDARDS IN EVALUATING
THE EVIDENCE OF POTARIZED VOTING

In determining whether a method of

election violates section 2, a trial court

must evaluate "the extent to which voting

in the elections of the state or poliEical

subdivision is racially polarized." S.

Rep. at 29.75 th" court below evaluated the

74 prior to this. litigation only 4 of the 170
members of t,he North Carolina legislature
$rere black; today there are stiIl only 15
black members, less than 10t, a far
smaller proportion Ehan Ehe 22.4t of the
population who are bIack. Whites, who are
75.8t of the state population, still hold
more than 90t of the seats in the legis-
lature.

75 Racial bloc voting is significant in a
section 2 case because, in the context of
an electoral structure wherein Ehe number
of votes needed for elect,ion exceeds the
number of black voters, it substantially
diminishes the opportunity for black
voters to elect candidates of their



71

lay and expert testimony on this question

and found nthat within all t,he challenged

districts racially polarized voting exists

in a persistent and severe degree." JA

40. Appellants argue that this finding is

erroneous as a matter of law.

Appellants, A. Br. 36, and the

Solicitorl U.S. Br. II 39, contend that

the court erroneously defined racially

polarized voting as occurring "whenever

less than a majority of white voters vote

for the black candidate.n But the

district court, guided by the Senate

report and in accordance with the experts

for appellants and apPellees, in fact

defined racially polarized voting as the

choice, and it allows white candidates to
ignore t,he interests of the black com-
munity and sti1l get elected. See United
Statei v. Carolene products co.l-5Oll-0f
ffi7-15FT1 .ETT936'I;@ rr ee n, 5'7 4
F. Supp. 325, 339 (8. Dmhree
judge court).



72

extent to which black and white voters

vote differently from each other in

relation to t,he race of the candidates.T5

The court focused not on1Y on the

existence but the degree of polarized

voting. As articulated by the court, the

relevant question is whether a substantial

enough number of white citizens do not

vote f or bl ack candidat,es r so that the

polarization operates, under the election

method in question, to diminish the

opportunity of black citizens to elect

candidates of their choice. JA 16-17, 43.

76 Senate Report, 29; JA 40r n.29, JA 123.
T. 1404. See also City of Rome v. United
States, 446 U.S.
Etffi:ing 472 F. Supp. 221 , 226 (D.D.c.
1979) ("Racial bloc vot,ing is a sit,uation
where, when candidates of different races
are running for the same office, the
voters will by and large vote for the
candidate of t,heir own race. ) " Accord, 128
Cong. Rec. 57120 (Sen. DoIe)(dai1y ed.
June 18, 1982).



73

This inquiry is plainly consistent, with

the statutory language of Section 2.

A. Summary of t,he District Courtrs

The District Court examined a number

of factors in determining that voting lras

severely racially polarized.

1. The court examined the percent-

^g"77of 
white and black voters who voted

for the black candidates in each of 53

primaries and general elections in which a

black candidate had run during the three

election years prior to the trlal. JA

43-48. The court f ound that r oIr the

average, 81.7t of white voters did not

77 appetlants conceded that the method used
to assess the extent of racially polarLzed
voting is standard in the literature and
that the statistical analysis performed by
appellees I expert was done accurately, JA
131-2, 281.



74

vote for anY black candidate in the

primary elections, and "approximately two

thirds of white voters did not vote for

black candidates in general elections even

after the candidate had won the Democratic

pr imary and t'he only choice was to vote

for a RePublican or no one." JA 42'

2. The district court det'ermined how

often the candidates of choice of whit'e

voters and of black voters were different'

Although, in primaries, black voters

ranked black candidates first or first and

second, white voters almost always ranked

them last or next to t'he last' JA Ex'

VoI. I Ex. 5-7. In general elections'

white voters almost always ranked black

candidates either last or next to last in

the multi-candidate field except in

heavily Democratic areasi in those latter'

"white voters consistently ranked black



75

candidates last among Democrats if not

Iast or next to last among all candi-

dates." JA 42. If white voters as a

group are selecting different candidates

than black voters as a group, assuming

black voters are in a minority, the

polarization diminishes the chances that

t,he black voters' candidate will be

elected. JA 132-135. In fact, the court

found that in all but two of the election

contests, t.he black candidates who were

the choice of black voters were ranked

last or near last such that they lost

among white voters. JA 42, n.31.78

3. The court considered statistical

analyses of the degree of correlation

between the race of voters and the race of

candidates whom they supported. The race

of the voter and the race of a candidate

78 rn describing
used the Eerm
cant'. JA 41-2.

this analysis the court
"substantively signif i-



75

were very closely correlated-79 rh" court

found that Ehe ProbabilitY of such

correlations appearing by chance was less

than 1 in 100r000. JA 41 and n.30.

Appellantsr expert agreed with this

determination. JA 281.

B. The Extent of Racial Polarization was

Eg

In addi.tion to their mischaracteriza-

tion of the courtrs analysis, appellants

propose a novel standard for assessing the

degree of polarized voting. Appellants

contend that racial Polarization of

voting has no legal significance unless it

79 Expert witnesses for appellants and
appellees agreed that the correlation
coef f icient is t,he standard measure of
whether black and white voters vote
differently from each other. JA 129,
281. Correlations above an absolute value
of .5 are relatively rare. The corre-
lations in t,his case had absolute values
between .7 and .98, with most above .9- JA
41 , n.30.



77

always causes blacks to 1o"".80 A. Br. 35,

40. Under appellantsr standard, a theory

not adopted in any vote dilution case they

cite r dny minority electoral success

precludes a finding of racially polarized

voting and bars a section 2 violation, a

result clearly contrary t'o t'he intent of

Congress. g= S. ReP. at 29, n.115 and

pp. 50-64' gEI3. Appellees know of no

80 The solicitor General does not adopt
appellants' proposed standard, but
aiticulates the inquiry as whether 'the
impact of racial bloc voting in combina-
tion with the challenged procedure --here,
multimember discricts -- deprives black
voters of equal access t,o t,he electoral
process...n U.S. Br.31-32. Assuming that
tne solicitor General includes with "equal
access to the electoral process", as the
statutory language of section 2 doesr drl
equal opSrcrtunity to elect candidates of
black voters' choice, the Solicitor
General does not disagree with the
d istrict court I s conception of the
question. The Solicitor General simply
d isagrees with the district court I s
finding of fact as to its answer.



78

court which has adopted aPpellants I

proposed standard in a section 2 case.

Other courts have found Polarized
voting sufficient, to suPport a violation
of section 2, despite a finding of some

electoral success. In Mc}liIlan v.

Escambia CountyrT4S F.2d 1037, 1043, 1045

(11th Cir. 1984) (Mcttlillan II), the court

found racially polarized voting and a

violation of section 2 despite some black

electoral success, based on a finding that

'a consistent majority of the whites who

vote will consistently vote for the

black ' s oppo ne nt . ' See aI so [la jor v .

Treen, 574 F. Supp. at 339.

In f act, in 55t of the elect,ion

contests analyzed here in which the black

candidate received substantial black

support, the black candidate did lose

because of racial polarization in voting.



79

That is, he lost, even though he was the

top choice of black voters, because of the

paucity of support among white voters.

Appellantsr statement that trtwo thirds of

all black candidaEes have been success-

ful", A. Br. 45, is misleading since it

only counts black candidates who made it,

to the general elections and ignores the

many black candidates who lost in the

Democratic primaries. Furthermore, of

white Democrats who made it to the general

election, 100t were successful in 1982,

and about 90t 'rrere successful in earlier

election years. JA Ex. VoI. I Ex. 13.

Appellants rely on Rg_ge_r_s_1. _!9d9e,

458 U.S. 61 3 ( 1 982) and two post-Mobile

lower court cases, all involving claims of

discriminatory intent under the Fourteenth

Amendment. We do not read the cited cases

to hold that racial polarization is

IegalIy significant only if it uniformly



80

causes electoral defeat.81 But this Court

need not consider, in the context of this

case, whether appellants I bold assertion

is correct. Assuming arguendo that proof

of absolute exclusion may be necessary to

raise an i nference of discriminatory

intent, it is not necessary to show that

black citizens have "less opportunity"

than do whites to elect candidates of

their choice in violation of the results

standard of section 2.

81 The lower courL in Rogers v. Lodge found
racial bloc voting b@lysis
that included an election in which a black
had won a city council seat. Lodge v.
Buxton, Civ. No. 176-55 (S.D. Ga. Oct.
triTTTA) slip. op. at'l-8. rn NAACP v.
Gadsden County School Board , 691FlZdTA

ing of uncon-
stitutional vote dilution was upheld
despite the election of one black can-
didate to the school board, a level of
electoral success similar to that present
here in House District 21 and House
Dist,rict, 35.



81

Appellees Were not Required to Prove
EF

Appellants contend that proof that

white voters rarely' or never vote for

minority candidates does not establish the

presence of polarized voting. Rather, they

urge, a plaintiff must adduce probative

evidence of the motives of the individual

white voters at issue, and must establish

that those voters cast, their ballots with

a conscious intention to discriminate

against minority candidates because of the

race of those candidates.S2 A. Br. 42-44.

82 Rppellants argue in particular that proof
of motives of the electorate must take the
form of a multivariate analysis. (App.Br.
43-44). No such multivariate analysis was
presented in White v. Regester or any of
the other diluffih congress
referred in adopting section 2. Although
appellants now urge that evidence of a
multivariate analysis is essential as a
matter of 1aw, no such contention $ras ever
made to the district court.

For Black Candidates was RaclaJ.r



82

This proposed definition of polarized

voting would incorporate into a dilution
claim precisely the intent requirement

which Congress overwhelmingly voted to
remove from section 2. The legislative
history of section 2 is replete with

unqualified statemenEs that no proof of

discriminat,ory intent would be required in

a section 2 case, and Congressr reasons

for objecting to the intent requirement in

Bolden are equally applicable to the

intent requirement, now proposed by

appellants.83

83 the reasons set out in the Senate Report
for reject,ing any intent requirement were
reiterated by individual members of
Congress. Senate Report 193 (additional
views of Sen. Dole) ; 1 28 Cong. Rec. (daily
ed. June 9, 1982) 55560-51 (Sen. Kennedy);
128 Corg. Rec. (daily ed. June 15, 1982)
56779 (Sen. Specter); 128 Cong. Rec.
(daily ed. June 17, 1982) S6931 (Sen.
DeConcini); S6943 (Sen. Mathias); S6959
(Sen. ttlathias); 128 Cong. Rec. (daily ed.
June 181 1982) S7109 (Sen. Tsongas); S7112
(Sen. Riegle); 57138 (Sen, Robert Byrd).



83

Congress opposed any intent require-

ment, first, because it believed that the

very I itigation of such issues would

inevitably stir uP racial animosities,

insisting that inquiries into racial

motives 'can only be divisive.' Senate

Report 35. Congress contemplated that

under the section 2 resulEs test the

courts would not be required to "brand

individuals as racist.n }|. The divisive

effect of Iitigation would be infinitely

greater if a plaintiff were required to

prove and a federal court were to hold

that the entire white citizenry of a

community had acted with racial motives.

Second, Congress rejected the intent

test because it created'an inordinaEely

difficult burden for plaintiffs in most

cases.' (S.Rep. 36) The Senate Committee

expressed particular doubts about whether



84

it might, be legalty impossible to inquire

into t.he motives of individual voters,

id., and referred to a then recent Fifth

Circuit, decision holding that. the First

Amendment forbade any judicial inquiry

into why a specif ic vot,er had voted in a

particular *ay.84 Congress thought it,

unreasonable to require plaintiffs to

establish the motives of locaI officials;

establishing the motives of thousands of

white voters, none of whom keep any

records of r{hy they voted, and all of whom

are constitut,ionally immune from any

inquiry into their actions or motivations

in casting their ballotsr85 would clearly

84 rd. 36 n.135,
Iicksonr 699

citing Kirksey v. City of
F.2d317@

a5

clariffing Kirksey v. City of Jackson, 663
F;tdr-659-r

See also Anderson v. Mi11s, 664 F.2d 600,
iT-Fg-Toffiourh Alameda
spqqi sh spea\1qg org ._ v_3iEf-.f@97

DemocraEic PaL .,



85

be an infinitely more difficult task.86

Counsel for aPpellants contend that

the plaintiffs in a section 2 action

should be required to establ ish the

motives of white voters bY means of

statistics, but at trial appellants I

statistician conceded it, would be impos-

sible to do 
"o.87

254 F. Supp. 543, 546 (S.D. AIa. 1956).

86 The courts have consistently entered
findings of racially polarized voting
without imposing the additional burdens
noe, urged by appellants. See MississipPi
Republ i ca n execut ive CommiEeFffioofs,

)

lffimmary ffiirmance of district court
using correlation test). SSe qlqe Bqgers
L-!"dgg., supra, 4 58 u. s-.-mZ3--r--Ue?5@
6ffi sEp-1 731 F.2d at 1s67-fr':5aTffiiiEy, supra, 731 F. 2d at 1567 n.34;
Fe"ITfi-s vffiy of West Helena, 675 F.2d

J7-al?ra mem. 459
U.S. 8Ol ( 1982) ; City of Er-rafEtr-ur v.
united states, s-l?--ffi2
ffi1981), aff 'd 459 u.s. 159
(1982).

87 appellants' expert testified that many of
the variables which he considers im-
portant, such as a candidate's skills or
positions on Ehe issues, are not quanti-
fiable. He did not suggest how such an
analysis could be performed, and he



86

Third, Congress regarded the presence

or absence of a discriminatory motive as

largely irrelevant to the problem with

which section 2 tras concerned' Senate

Report 36. The motives of white voters

are equally beside the point. The central

issue in a dilution case is whether, not

why, minoritY voters lack an equal

opportunity to elect candidates of their

choice.

In appellanLrs view, polarized voting

occurs only when whites vote against black

candidates because of their race, but not

when whites consistently vote against

black candidates because those candidates

conceded he had never performed one. T'
1 420 , 1460 , JA 283. Even tttcCleskey-J'
Zant, 580 F.Supp. 338 (N.D.Ga. 1984),
ffid, 753 F.2d 877 (srh cir. 1985),
ffif pending, No. 84- r orl which
iflplrants--Eii, hords th?itlEuch regre s-
Jion analyses are incapable of demon-
strating iacial intent wherer ES here,
"qualitaCive' nonquantif iable dif ferences
aie involved. 580 F. SUPP. at 372.



87

are not able to purchase expensive media

campaigns or obtain endorsements from

1ocal newspapers. The reasons appellants

present as a legit,imate basis for whites

not voting for black candidates are almost

invariably race related. In the instant

case , for example, t.he inability of black

candidates to raise large campaign

contributions had its roots in Lhe

discriminat,ion that has impoverished most

of the black community' An eleetion system

1n which black candidates cannot win

because their supporters are poorr oE

because local newspaPers only endorse

whites, or because of white hostility to

any candidate favoring enforcement of

civil rights 1aws, is not a sYstem in

which blacks enjoy an equal opportunity to

participate in the political process or

elect candi,Jates of their choi"".88

88 Moreover, to require a district court to



88

The District Courtrs Finding of
ed

voting is not clearly Erroneous.

Based on the analysis summarized in

Part III A, supra, the trial judges found

"that in each of the challenged districts
racial polarization in voting exists to a

substantial or severe degree, and that in
each district it presently operates to

minimize the voting strength of black

voters. " JA 48.

The Solicitor contends that the dis-
Erict court ignored possible variations in
the extent of polarized voting, asserfing

determine which ostensible reasons are
legitimate and which are race related
would be exactly the type of subjective,
motivational analysis Congress sought to
avoid. If such an analysis were relevant,
even the Solicitor General agrees that it
is not necessary in order to establish a
prima facie case, but it, is the defen-
dants' burden to prove it on rebuttal.
U.S. Br.30, n.57. Accord, Jones v.
Lubbock, 730 F.2d nmi (EE-"leE.
lTB,4TlT-igginbotham eoncurring ) . No such
evidence r.ras offered here.

D.



89

the district court adoPted a de-
finition of racial bloc voting
under which racial Polarization
is "substantivelY significant"
or ' s evere' whe never " t'he
results of the individual
election would have been
different dePending uPon whether
it had been held among onlY the
white voters or onIY the black
voters in the election. U.S. Br.
rt 29.

The Solicitor argues that under this

definition elections in which only 49t of

whit,es voted for a black would be held to

be "severely racially polarized". U.S.

Br. 29. (Emphasis in original). This

argument rests on a misrepresentation of

the language of the opinion below. The

quoted reference to differences in the

preferences of black and white voters

appears on page JA 41 of the oPinion,

where the district court correctly notes

the presence of such differences in this

case. The term 'severe' does not appear in

that passage at all r but is used on the



90

next page in a separate paragraph to

describe elections in which 81.7t of white

voters declined to vote for any black

candidate. JA 42. The opinion of t,he

district court clearly distinguishes the

presence of any differences between black

and white voters from a case in which

whites overwhelmingly opposed the candi-

date preferred by black voters, and

equally clearly characterizes only the

latter as t'severe . '
The primary evidentiary issue

regarding polarized voting that must be

resolved in a section 2 dilution case is
whether the degree of polarization $ras

sufficiently severe as to materially
impair the ability of minority voters to
elect candidates of their choi"".89 tn

89 while appellants do not challenge the
method appellees' expert used to analyze
the election returns in general, JA 1 31-2,
281 , appellants clairn that appellees'
regression analysis is flawed by what



91

concluding that such impairment had been

shown, the court relied on the extensive

fact findings noted above, including the

fact on average 81.7t of white voters do

not vote for any black candidat,e in a

primary election. The polarization $'as

most severe in House District 8, where an

average of 92.7t of whiLe voLers do not

vote for any black candidate in a primary,

JA 47-48; the district court correctly

they labeled the "ecological fallacy. "
They assert that instead of using turnout
figuresr aPPeIIeesr expert used voter
registration figures. A. Br. 41. Not
only rras this argument made to the
disirict court and reject,ed, JA 40, n-29,
but also it is not accurate. Appellees'
experE, Dr. Grof man, did have t,urnout
figures for each precinct, and he used a
regression analysis to calculate the
turnout figures by race. Px 12 at pp.
3-8. In fact, appellants t expert admitted
t,hat he did not know what method Dr -

Grofman used to calculate turnout, JA
279-80, and he, therefore, could not
express an opinion about the accuracy of
the method.



92

noted that in that district it was

mathematically impossible for a black

candidate ever to be elected. JA 48.

In the other districts, the degree of

polarization was sufficiently severe to be

a substantial impediment, although not

necessarily an absolute bar, to the

election of minority candidates. The

average portion of whit,e voters willing to

support a black candidate in a primary was

1 8t. The proportion of voters that was

white ranged from 70.51 to 84.9t. JA 21.

In each of the disputed districts the

number of white voters who in primaries do

p! support the black candidat.e favored by

the black community const,ituted a majority

of the entire electorate.90 U.rd". those

90 Given the smal1 percentage of black
voters, the failure of this number of
whites to vote for black candidates
presented a substantial barrier. The
lower the black PoPulation of the dis-
trict, the more white voters it takes
votirrg for the black candidate to make it



93

circumstances, the election of candidates

preferred by black voters, while not

mathematically impossible, is obviously

extremely difficult.

Appellants attack the lower courtrs

finding of substantial polarized voting by

selectively citing the record. Of the 53

elections discussed by the trial court,

possible for him to win. Moreover, no
evidence was Presented to show that the
extent of racial polarization was declin-
ing. JA 137 , 1 40.

Here, while there are a large number of
black citizens, because they are submerged
into such large multimember districts,
they are a small percentage of the total
electorate. For examPle, in House
District 36 (Mecklenburg County), there
are 107r005 black residents, Px 4(b), JA
Ex. VoI. II, more t,han enough for two
whole House Districts, id., but because
they are submerged into-E'n eight member
district, they are onIY 26.5t of the
population. Because the percentage of the
registered voters in each of the districts
which is black is relatively low, ranging
from 15t to 29*, it takes little polar-
ization to impede materially the ability
of the black community to elect candidates
of its choice.



94

appellants refer only to 8. A. Br. 35-38.

In most instances, appellants emphasize

the election at which white support for a

black candidate $ras the highest of any

election in that district.9l The highest

proportion of white support for minority

candidates cited by appellants were in the

1982 Durham County general elections and

the 1982 llecklenburg County primary. (A.

Br. 36-37) . but there $rere no Republican

candidates in the 1982 general election in

Durham County, and in the 1982 Mecklenburg

County primary there urere only seven white

candidates for eight positions in the

primary. JA 46, 44. Thus the white votes

of 47* and 50t in those two races repre-

sent the number of whites willing to vote

for an unopposed black instead of not

voting at all, rather than the proportion

91 This is true of examples (a) (b) (h) (i) and
(j) in Appellantsr Brief. See JA 152.



a

95

of whites willing to support in a con-

t,e s t ed e I ect ion a mi nor i ty cand idate

favored by the minority community.

rV. THE DISTRICT COURT FINDING OF UNEQUAL
ELECTORAL OPPORTUNITY WAS NOT CLEARLY
ERRONEOUS

A. The Clearly Erroneous RuIe Applies

Appellants contend that, even if the

district court was applying the correct

Iegal standard, the courtrs subsidiary

f actual f i nd ings r Ets well as its ultimate

finding that minority voters do not enjoy

an equal opportunity to elect candidates

of their choice in Ehe disputed districts,

lrere mistaken. Appellants correctly

describe these contentions as presenting

a 'factual- question."92 The lower courts

92 a. g.. 25i see also id. at 35 ("no matter
how one weights anffieighs the evidence
presented, it does not add up to a denial
of equal accesS'), 26 (disputed trial
court findings made "in spite of the
facts"), 29 (" [n]othing in the record
supports" a disputed finding), 30 n.l2



-96

have consistently held that a finding

under sect,ion 2 of unequal PoIitical
opportunity is a factual finding subject

to the RuIe 52 "clearly erroneous" aula.93

The courts of appeal considering constitu-

tional vote dilution claims prior to

9olden also applied the clearly erroneous

rule to findings of the trial court.94

(testimony relied on by the trial court
"was simply not credible" ) , 30 (PIaintiffs
"failed to prove" a subsidiary fact).

9J cof]lins v. City of Norfolk, 768 F.2d 572,
, 1985) (sIiP

opinionr p. 4) ; ttcC_ar_la_v. _Henson | 749
F:2d 1134,-1 135 (sffies v.
City of Lubbock, 727 F.2d 364t 3fi7-T6O
ffi); velasquez v. City of
Abilene, 725 F.2d
Tg:$'ffiUni ted States v. l,larengo County
Com' n,
T96ff; Buchanan v. City of Jackson, 708
F.2d 106rf676-ffi

94 Parnell v. Rapidas Parish School Bd., 563ir. f97Zifr-endrix
v. Joseph, 559 F.2d 1265, 1268 (Stffi
rcn?iTT-qci11 v. Gadsdeq Coun-ty Co,mission,
535 F. rt
v. Sterrett, 508 F.2d 1389., 13f3-f5EE
eTr;-F751--z immer v. McKeithen ' 485 F. 2d
ar 1302 n.8ffi, 1309-10
(Coleman, J., dissenting)' 1314 (C1ark,



97

Until recently the United States also

maintained, that absent any failure to

apprehend and aPply the correct legal

standards, a finding of unequal electoral

opportunity under section 2 was a

factual finding subject to Rule 52(a),
o5

F. R. Civ. P.'

The Solicitor General noh, asserts,

however, that RuIe 52 does not aPPly to a

finding of vote dilution under section 2.

The Solicitor acknowledges that the

determination of a section 2 claim

"reguires a careful analys is of the

challenged electoral processr Els informed

by its actual operation. " U.S. Br. II,

1 8. But, he urges EhaE the ultimate

finding of the trial court based on that

J., dissenting).
95 See Brief for the United States, United

SEE'tes v. Dallas Countv Commission]-TTEE
1983)

P. 26.



98

analysis may be reversed whenever an

appellate court views the facts dif-

ferently.

The arguments advanced bY the

Solicitor do not justify any such depar-

ture from the principles of }"A.rso, n-

City of Bessemer City, 84 L.Ed.2d 518

(1985). A number of the cases relied on

by. the Solicitor General involved simple

matters of statuEory constructio.rr9Sot the

meaning of a constitutional right where

the facts were not in dispute.9T

In Bose CorP. v. Consumers Union, 80

L.Ed.2d 502 ( 1984) this Court declined to

apply Rule 52, but it, did so only because

the Constitution requires appellate courts

in First Amendment cases to undertake "an

95 uetropolitan Edison Co. v. PANE, 460 U.S.
Iisher v.

Nationr S5 t
97 Strickland v. washingtonr S0 L.Ed.2d 674



99

i ndepe nde nt, examination of the whole

record.' 80 L. Ed.2d at 515-26. The

Sol icitor suggests that the special

standard of appellate review in Bose

should be. extended to any statutory claim

in which "the stakes . o. are too great to

entrust them finally t,o t'he judgment of

the trier of fact.' U.S. Br. II 19. But

this Court has already applied Rule 52 to

Fourteenth Amendment claims of purposeful

discrimination 1n votin9r98 to claims of

discriminatory effect under section 5 of

the Voti ng Rights Act r 
99und to claims

arising under Title VII of the 1964 Civil

Rights Act.100 rn. 'stakes' in each of these

areas of t,he law are surely as great as

98 Hunter v. Underwood, 85 L.Ed.2d 222, 229

' sup,I3' aE 622-23 '
99 City of Rome v. united states, 446 u.s.

1 oo , 9gP!3;



100

under Section 2. 95.. Alyeska PiPeIine

Service,v. Wilderness Society, 421 U.S.

240, 263-64 (1975). As this Court enph-

asized in White v. Regester, a district

court called upon to resolve a vote

dilution claim occupies " it,s own special

vantage pointn from which to make an

" intensely locaI appraisal' of the

existence of racial vote di1utiorr.l01 412

ffition of Rule 52 is particu-
larly appropriate in a case such as this
where the appellants' brief is replete
with controverted or clearly inaccurate
factual assertions. For examPle, appel-
lants state without citation, "InHalifax,
several blacks have been elected to the
County Commission and the City Council of
Roanoke Rapids. " A. Br. 1 1 . This is
fa1se. No black had ever been elected to
either body. JA 233. Appellants state,
'rThe Chair of the l,lecklenburg County
Democratic Executive Committee at the time
of trial and his immediate predecessor are
also b1ack. Stip. 126 ' A. Br. 8.
Stipulation 125 actually says, "The
immediate Past Chairman of the l'lecklenberg
County Democratic Executive Committee, fot
the term from 1981 through May 1983, was
Robert Davis, who is black. Davis is the
only black Person ever to hold that
Fffition." JA 105. Appellants state that
"ff Forsyth County kere divided into



101

u.s. ar 769.

Erom "its own special vantage point"

the court here made det,ailed and extensive

fact findings on virtually all the factors

the Senate Report thought probative of a

section 2 violation. The findings of the

district court involved six distinct

multi-member districts, the circumstances

of which were of course not precisely

identical. Appetlants neither contend that

these differences are of any importance or

suggest that the trial courtrs ultimate

finding of unequal electoral opportunity

under the totality of circumstances is any

single member House districts, one
district with a population over 55t black
could be formed. Stip. 129." ApP. Br. 9.
Stipulation 129 in fact says that two
majority black districts could be formed.
JA 105. The omission is particularly
deceptive since the remedy proposed by
appellants, which was accepted unchanged
by the district court, contained two
districts in Forsyth County which are
majority black in voter registration.



B.

102

less justifiable in any one district than

in the others. Rather, appellants advance

objections which they contend are equally

applicable to all the districts at issue.

Appellants attack t,he district court I s

ultimate finding by generally challenging

each of the subsidiary findings on which

it is based. A. Br. 25-34.

Evidence of Prior Voting
EiffiffiliiEEi6n

The district court, after describing

the long North Carol i na historY of

official discrimination intended to

prevent blacks from registering to vote,

as well as some relatively recent efforts

to counteract the continuing effect,s of

that discrimination, concluded:

The present condition .... is
thatr on a state wide basis,
black voter registration remains
depressed relative to that of
the white majority, in Part at
least because of the long Period



103

of official state denial and
chl1ling of black citizens'
registration efforts. This
statewide dePression of black
voter registration levels is
generally rePlicated in the
areas of the challenged dis-
tricts, and in each is Lraceable
in part at leasL to the histori-
cal statewide Pattern of offi-
cial discrimination here found
to have existed. JA 27-28.

Such d isparit ies i n black and white

registration, rooted 1n past and present

discrirnination, is one of the factors

which Congress recognized puts minority

votes at a comparative disadvantage in

predominantly white multi-member dis-

tricts. Senate RePort 28.

Appellants conceder ds theY must,

that it was for decades the avowed policy

of t.he state t,o prevent blacks from

registering to vote. A. Br. 25. The

district court noted, fot example, that in

19OO the state adopted a literacy test for

the avowed purpose of disfranchising black



104

votersr and thaL that test remained in use

at least until 1970. JA 25. APPellants

arguer 6s theY did at trial, that all

effects of these admitted discriminatory

reg istration practices were entirely

eliminated because recent state efforts to

etiminate those effects "have been so

successful." A. Br. 27- The district'

court, however, concluded t.hat recent

registration efforts had not been suffi-

cient to remove "the disparity in regis-

tration whieh survives as a legacy of the

long period of direct denial and chilling

by the state of registration by black

eitizens' JA 27.

The district courtrs finding is amply

supported by the record below. In every

county involved in this litigation the

white registration rate exceeds that of

blacks, and in many of those counties the

differential is far greater than the



105

statewide disparity.102 ra. at n.22. Even

appellants I witnesses acknowledged that

this disparity was unacceptably great,. Px

40 ; T. 5 7 5-77 , 1357 i JA 'l 99. There was

direct testimony that the history of

mist,reatment of blacks continued to deter

blacks from seeking to register. JA 175,

1 88-89 , 21 1 -12, 220-25 , 229 , 242-43 .

Appellants contend that in the last

few years the state board of elections

has taken steps to register blacks who

might have been rejecEed or deterred by

past practices. A. Br. 26. But the staters

involvement did not begin until 1981, and

the record was replete with evidence that,

long after the literacy test ceased to be

102 rn 1971 | the year after use of the
discriminatory literacy test ended, 60.5t
of whites were registered, compared to
44.4t of qualified blacks. As of 1982
that registration gaP had only been
slightly narrowed, with 66.7t of whites
and 52.7X of blacks registered. JA 26.



106

used, locaI white election officials at

the county level pursued practices which

severely limited the times and places of

registration and thus perpetuated t,he

effects of past discriminatory practices.l03

Under these circumstances the district
court was clearly justified in finding

that minority registration levels remained

depressed because of past discriminatory

practices.

1 03 In a number of instances registration was
restricted to the county courthouse,
locations that especially burdened the
large numbers of blacks who did not own
cars. JA 220-22, 229i JA Ex. VoI. I Ex.
37-52. Local elect,ion of f icials severely
limited the activities of voluntary or
part-time registrars, only allowing them,
for example, to register nel, voters
outside his or her own precinct when the
state board of elections required them to
do so. T. 525, 553-55, JA 212, 222-24.



107

c. Evidence of Economic and Educational
DlEadvantages

The district court concluded that

minority voters were substantially impeded

in their efforts to elect candidates of

their choice by the continuing effects of

the pervasive discrimination that af-

fected, and to a significant degree

continues to affect, every aspect of their

Iives. JA 28-31 .

The court concluded that pas t
discrimination had led to a variety of

sociar and economic disparities.l04 such

1 04 T6q mean income of black citizens was only
64.9t t,hat of white citizens. Approxim-
ately 30t of all blacks have incomes below
the poverty leveI, compared to only 1 0t of
whites; conversely, the proportion of
whites earning over $20r000 a year is
twice that of blacks. JA 30. Since
signif icant, desegregation did not occur in
North Carolina until the early 1970's,
most black adults attended schools that
were both segregated and qualitatively
inferior for aIl or most, of their primary
and secondary education. JA 29. See
Gaston County v United States, 395 U:t



108

social and economic disparities lrere cited

by Congress as a major cause of unequal

opportunity in multi-member districts.

s. Rep. 29.105 appellees adduced evidence

documenting these disparities in each of

285, 292-96 (1969). Residential housing
is rigidly segregated throughout the
state, JA 29, and is almost total in each
of the challenged districts. T. 268, 6481
739i JA 176-7, 201-2, 219, 240t 263-4, JA
Ex. Vol. II, Px 3a-8a.

1 05 gqngress deemed evidence of substantiat
social ard economic disparities sufficient,
by itself to demonstrate that blacks would
be at a significant disadvant,age in a
majority white district. The Senate
Repor t d irects the courts t,o presume ,
where those disparities are Present, that
"disproportionate education, employment,
income level and living conditions arising
from past discrimination tend to depress
mirority political participation. ..' Id.
29 n. 1 t +. The propriety of such Gn
inference was an established Part of the
pre-Bolden case law expressly referred to
by co-ffi, and is an established part of
the post-amendment section 2 case law as
well . unit,ed States v. Marengo County,
731 F.2 efr
v. Escambia County, 748 F.2d ;ff0-44;
ffilas County, 739 F.2d



109

the challerrged districtsl 05"nd appellants do

not dispute their existence.

Appellants attack the district

court's finding that these undisputed

disparities substantially lmpeded the

ability of blacks to participate effec-

tively in the political Process, asserting

that "plaintiffs failed to prove that

political participation on the part of

blacks in North Carolina was ... in any

way hindered." A. Br. 30. But appellees

i n fact, i ntroduced the evidence which

106 Msgklenburg County: T. 243,
VoI. I Ex. 37; JA 77-89.

Durham County: T. 647-51,
Vol. I Ex. 39t JA 77-89.

436i JA Ex.

585; JA Ex.

Forsyth County: T. 595-95, 61 1 ' 734, JA
Ex. Vol. I Ex. 38i Hauser deposition 35,
36, 38

Wake County: T. 130, 1216-18;
I Ex. 40; JA 77-89.

House District 8: T. 701-03,
44i JA Ex. VoI. I Ex. 41-43i

JA Ex. Vol.

7 40-41 ,7 42-
JA 77-89.



110

appellants assert was missing, documenting

i n detail precisely how the admitted

disparities impeded the electoral effec-

tiveness of black voters. That evidence

demonstrated that the cost of camPaigns

rras substantially greater in large

multi-member districts, and that compara-

tively poor black voters were less able

t,han whites to provide the financial

contributions necessary for a successful
. 107campaigD.'-' Minority voters were far less

like1y than whites to own or have access

to a car, without which it was often

difficult or impossible to reach polling

107 1. 130; JA 177-78, 180-1, 235-6; JA Ex.
Vol. I Ex. 14-17; Hauser Deposition, 35.
There was also more general testimony
regarding the net impact of these dispari-
ties. JA 168, 213-14i 236-7. See David
v. Garrison, 553 r.2d 923, 927 t-92g-i-5EE'
ffi1977l? Dove v . Moore , 539 F. 2d 1 152 ,
11s4 n.3 Gffi'eifT976)i Hendrick v.
Walder , 527 F.zd 44, 50 ( 7thffiT975l .



111

places or registration sites.108 Minority

candidates, Iiving in racially segregated

neighborhoods and a racially segregated

society, had far less opportunity than

white candidat,es to gain exPosure and

develop support, among t,he majority of the

voters who were white.109

Appellants urge that this. evidence

was rebutted by the. fact that eight

witnesses called by appellees were politi-

cally active blacks. A. Br. 29-30. But

the issue in a section 2 dLlution proceed-

ing is not whether any blacks are Parcici-
pants in any way in the political Process,

108 T. 634r G86; JA 77i JA Ex. vol. r Ex.
37-52. The district court noted that
25.1t of all black families, compared to
7.3t of white families, have no private
vehicle available for transportation. JA
30.

109 T.7a2; JA 176-91, 213-14, 239.



112

but whether t.hose who participate have an

equal opportunity to elect candidates of

their choice. The mere fact, that eight or

even more blacks simply participate in the

electoral process does not, by itself,

support any particular conclusion regard-

ing t,he existence of such equal opportu-

nity. In this case the inst,ances cited

by appellants as the best examples of the

degree to which the political Process is

open to blacks actually tend to support

the trial court r s conclusions to the

contrary. AII the sPecific political

organizations which aPPellant,s insist

blacks are able to participate in are

either civil rights or black organiza-

tions;11oon1y two of the individuals cited

1 1 0 T69 organizations refered to by appellants
are the Nash County NAACP, the l,tecklenburg
County Black Caucus, the Second Congres-
sional District, Black Caucus, the Durham
Committee on the Affairs of Black People,
the Wilson Committee on the Affairs of
BIack People, the Raleigh-Wake Citizens



113

by appellants held elective

both positions vrere chosen i

black single member districts.

office, and

n majority
111

D. Evidence of Racial Appeals by White

The district court concluded that the

abi 1 i ty of mi nority voters to elect

candidates of their choice was signifi-

cantly impaired by a statewide history of

white candidates urging white voters to

vote against black candidates or against

white candidates supported by black

voters:

IR] acial aPPeals in North
Carolina Political camPaigns
have for the Past thirtY Years
been widesPread and Persistent
. . . . [T] he historic use of
racial aPPeaIs in Political
campaigns in North Carolina
persists to the Present time and

Associat,ion, the B1ack Womenrs PoIitical
Caucus, and the Wake County Democratic
B1ack Caucus. A. Br. 11-12, 30.

111 JA 1oB, stip. i43i JA 201, 237-



114

. .. its effect is PresentlY to
lessen to some degree the oPPor-
tunity of black citizens to
participate effectivelY in the
poI it,ical process and to elect
candidates of their choice.
JA 34.

Congress noted that the use of such racial

appeal s to whit,e voters might make it,

particularly difficult for black candi-

dates to be elected from majority white

districts. Senate Report 29. The noxious

efflcts of such appeals are not limit,ed to

the particular election in which they are

made; white voters, once persuaded t,o vote

against a candidate because of his or her

race or t,he race of his or her supporters,

may well vote in a similar manner in

subsequent races. JA 34.112

112 "The content,s of these materials reveal an
unmistakable inLention by their dis-
seminators to exploit existing fears and
prejudices and to create new fears and
prejudicesn toward black political
participation. Id. According to a black
witness at triEl , one of the biggest
obstacles to black candidates is 'con-



't 15

Appellants object that, of the six

elections referred to by the district

court as involving racial appeals, only

t,wo occurred within the last 15 years. A.

Br. 32a. But these particular elections

were not cited by the trial court as the

sole instances of racial appeals. Rather,

those s ix e lections grere l isted as the

most blatant examP1es, JA 34, and the

opinion added that ' In] umerous other

examples of . .. racial appeals in a great

number of locaI and statevride elections

abound in the record. " fg. Among

the additional instances of racial appeals

documented in the record referred to by

the d istrict court are elections in

1g76, 1 131980, 1 14.nd 1g82. 1 1 5

vi ncing the whit,e voter that there is
nothing to fear from having blacks serve
in elecEive office." JA 179.

T. 330-38, 390-91; Px 44.

T.355-358.

113

114



115

Appellants also urge that the

presence of racial appeals cannot be

proved merely by evidence as to the

content of the advertisements or litera-

ture used by white candidates; rather,

they assert, some form of in depth public

opinion poll must be conducted to demon-

strate what meaning white voters acknowl-

edge attaching to the racist materials

used by white candidates. A. Br. 31-32.

Public opinion pol1s are not, however, the

ord i nary rnet,hod of establ ish i ng the

meaning of disputed documents; indeed, if

racial appeals have been effectiver the

white voters to whom those appeals were

addressed are unlikely to discuss the

matter with complete candor. LocaI

federal judges, with personal knowledge of

1 1 5 1. 354, 3 57-69 i
Ex. 23-26, 36.

JA 164-57; ;JA Ex. VoI. I



t

117

the English language and the culture in

which t,hey liver. 6E€ entirely competent to

comprehend the meaning of the spoken and

writt,en word in a wide variety of con-

texts , i ncl ud i ng pol it.ical appeals. No

publ ic opinion poll is necessary to

understand the significance of appeals

such as "White People Wake UP", T. 245-46i

JA Ex. Vol. I Ex. 21 r or to realize why,

although typically unwilling to provide

free publicity t,o an opponent, a candidate

would publiclze a photograph of his

opponent meeting with a black leader. T-

356-58; JA 166-67i JA Ex. VoI. I Ex. 36.

Indeed, these judges, dll North Carolina

natives conversant with locaI social and

political realities, were able to deter-

mine that recent racial appeals, while at

times oless gross and virulerltr" JA 33,

"pick up on the same obvious themes":

"black domination" over "moderate" white



118

candidates and t.he threat of "negro rule"

or "bIack power" by blacks "bloc" voting.

rd.116

E. Evidence of Polarized Voting

The sufficiency

supporting the district
polarized voting is set

suPra

of the

court I s

out at

evidence

finding of
pp. 88-95,

F. The Dlajority Vote Requirement

The d i strict court f ound t,hat the

majority runoff requirement impaired t,he

ability of blacks to elect candidates of

their choice from the disputed districts.

JA 31-32. Although no black candidate

seeking election to one of the at-large

116 For example, using a frequent pun for
black, a candidate in 1982 in Durham
denounced his black opponent for 'bus-
sing" [sic] his "block" vote to t,he polls.
JA Ex. Vo1. I Ex. 23-26.

a



119

seats has ever been forced into a runoff

because of this rule, A. Br. 27, the issue

at trial was not whether the runoff rule

had led directly to the defeat of black

Iegislative candidates, but whether that

rule i nd irectly interfered with the

ab i 1 i t,y of mi nority voters to elect

candidates of their choice. The majority

vote requirement has Prevented black

citizens from being elected to statewide,

congressional, and local leve1 positions,

T. 958-959, 967, JA 203-4; Dx 48, P. 20.

The exclusion of blacks from these offices

has operated indirectly to interfere with

the ability of blacks to win legislative



120

elections .117 The courtrs findings have a

substantial basis in the record and

corroborate Congress' concern that in vote

dilution cases, majority vote requirements

are "typical factors" which "may enhance

the opportunity for discrimination against

the minority group.' Senate Report at 29.118

117 Because of the effect of the runoff
requirement in state and local offices,
black voters were deprived of an opPor-
tunity to prepare for legislative elec-
tions by winning locaI office, of the
possible assistance of minority of-
ficials in higher officerand of a pool of
experienced minority campaign workers. T.
142, 192t 960, 967i JA 175-77, 179-80.

1 1 I This Court has also recognized the
d i s cr imi natory pot.e nt iaI of runof f
requirements. See, e.9., City of _Portarihur v. unitetfstates, 459:T3._T59

United States,
446 U.S.



121

G. Evidence Regarding EIectoral Success

,

Having identified a number of specific

aspect,s of the challenged at-large systems

which interfered with the abilit'y of

blacks to participate in the political

process or elect candidates of their

choice, the district court examined as

well actual election outcomes to ascertain

the net impact of those pracEices. The

court concluded:

IT] he success that has been
achieved by black candidates to
date is, standing a1one, too
minimal in total numbers and Eoo
recent in relation to the long
history of comPlete denial of
any elective oPportunities to
compel or even to arguablY
support an ultimate finding that
a black candidate's race is no
longer a significant adverse
factor in the Political Pro-
cesses of the state either
generally or sPecificallY in the
areas of the challenged dis-
tricts. JA 39-40.



122

ttuch of the argument advanced by both

appellants and the Solicitor General is an

attack on this factual finding.

As the facts stood in SePtember,

1981, when this act,ion h,as f iled' the

correctness of this finding could not

seriously have been disputed. Prior t,o

1972 no black candidate had ever been

elected from any of the six disputed

multi-member districts. From 1972-1980 no

black representatives served in at least

three of the districts; far from having,

as the Solicitor suggests, a level of

representation comparable to their

proportion of the populationr dt any given

point, in time, prior to 1982 more than

two-thirds of the black voters had no

elected black representatives at' a1l. In

six of the disputed dist,ricts, with an

average black population of well over 25*,

a total of 30 legislators were elected at

I



a

123

large. Prior to 1982 no more than two or

three black candidates were successful in

any election year.1 I 9

Appellants rely so1ely on the results

of the 1982 elections in attacking the

findings of the district court. The

outcome of the 1982 elections, held some

14 months aft,er the f iling of this action,

rirere strikingly different than past

elections. Although in 1 980 only two

districts had elected black candidates,

four of the districts did so in 1982. For

the first time in North Carolina history

two blacks were elected simultaneously

from the same multi-member legislative

districtr E€sulting in five black legis-
120Iatrors.

119 Statewide, the number of black elected
officials remains quit,e low, and has not
increased significantly since 1975. JA
35; JA Ex. VoI. I Ex. 22.

1 20 alg6ough appellees state that seven blacks
were elected in 1982, two were elected



124

APPellants contended at t'riaI that

the 1982 elections demonstrated that any

discriminatory effect of the at-large

systems had, at least since the filing of

t,he complaint, disappeared. The district

court expressly rejected that' contention:

There are intimat,ions from recent
history, Part,icularly f rom the 1982
elections, that a more substantial
breakthrough of success could be
imminent --but there were enough
obviously aberrat,ional asPects
present in the most recent elections
to make that a matt,er of sheer
speculation. JA 39.

The central issue regarding the

significance of minority electoral success

is whether the district courts' evaluation

of the obviously unusual 1982 election

results was clearly erroneous. The parties

offered at trial conflicting evidence

from majority black House districts in
sect,ion 5 covered counties which although
they include some counties in Senate
District 2, are not in question here-
st.ip. 95, JA 94i JA 35.



125

regarding the significance of the 1982

e1ection".121 The evidence suggesting that

the 1982 elections were an aberration was

manifestly sufficient to support the trial

courtrs conclusion. Firstr ds the district

court noted, there was evidence that white

political Ieaders, who had Previously

supported only white candidates, for the

first time gave substantial assistance to

black candidates and did so for the

121 rn Forsyth County, for example, appel-
lants pointed t,o isolated instances of
electoral success prior to 1 982 which the
court weighed in conjunction with evidence
of electoral failures such as the defeat
of alI black Democratic candidates,
including appointed incumbents, in 1978
and 1 980, Years i n which all white
Democrats were successful. JA 37 . In
House District No. 8, which is 39t black
in population, no black had ever been
etectea and from llecklenburg, in the eight
member House and four member Senate
districts, only one black senator (1975-
1979) and no black rePresentatives had
been elected this century prior to 1982-
JA 35. Moreover, as in Forsyth, ingeneral
elections wherever there vras a black
Democrat running, black Democrats were the
only Democrats to lose to Republicans. JA
135.

a



126

purpose of inf luencing this litigat,ion and

preventi ng the int,roduction of single

member district =.122 Second, in llecklenburg

Count,y there were fewer white candidates

than there were seats, thus assuring that

a black candidate would win the primary.123

Third, conversely, in Forsyth County there

was such a surfeit of white candidates

that Lhe splintering of the white vote

gave blacks an unusual opportunity.l24

122 Hauser Deposition, 49i JA 259-50.

123 g6 44. Moreover, the black candidate who
lost in the general election was the only
Democratic candidate to Iose. In House
District 23, there 'dere only 2 white
candidates for 3 seats in the 1982
primary, and the black candidate who won
ran essentially unopposed in the general
elect,ion, but stiIl received only 43t of
the white vote. JA 46, 142-3, 153.

124 ga 137--8. There $rere 9 white Democratic
candidates, none of them incumbents,
running for 5 seats. Appelleesr expert
testified that the likelihood of two
blacks getting elected again in the
multi-member district was "very close to
zero. " Id.

a.



{

127

Fourth, in 1982r ds occurs only once every

six years, there was no statewide race for

either President or United States Senate,

as a result of which white and Republican

turnout was unusually 1or.125 Fifth, in one

county, black leaders had been able to

bri ng about the election of a black

legislat,or only by selecting a candidate

who had not been visibly outspoken about

the inLerests of the black community-126

Finally, in a number of instances black

candidat,es won solely because black voters

in unprecedented numbers resorted to

125 T.142-144, 179i JA 137-39, 140. white
turnout $ras 20t lower than in 1 980.

126 Hauser Deposition 42-43;JA 205-5. The
ability of some blacks to get elected does
not mean they are the representatives of
choice of black voters. T 591, 1291-4,
1299, JA 214-15.

I



128

single shot voting, forfeiting their right
to participate in most of the legislative
elections in order to have some oPPor-

tunity of prevailing in a single race .127

The success of black candidates in

1982 was viewed by the court as a con-

catenat,ion of these various factors, each

of which either was a freak occurrence

1 27 Bxpsrts for both appellants and appellees
agreed that black voEers had to single
shot vote in order to elect black can-
didates in the districEs at issue. T.
797-8r JA 135, 148-49t 150,278-79. Lay
witnesses for both parties also agreed
that the victories of black candidates
were due in large measure to extensive
single shot voting by blacks. T. 1099; JA
228, 258-59.

D

?



129

over which aPPellees had no control ,128 o,

{ in and of itself underscored the inequal-

ity in the multi-member election syst"*.1 29

1 28 16s likerihood, for exampre, of repeaEing
successfully the 1982 election of blacks
in the challenged Forsyth House District
was "very close to Z€Eo.rr JA 137. More-
over, unlike white Democrats, not a single
one of whom lost in the 1982 general elec-
tions, black Democrats in the other
districts stil1 enjoyed only haphazard
success. Thus, the court was not pre-
sented with the fact, situation of Whitcomb
v. Cnavis , 403 U.S. 124 ( 197'l ).-

129 '1'6s necessity of single shot voting is a
distinct handicap because it exacerbates
the competitive disadvantage minority
voters ilready suffer because of their
numerical submergence. white voters get
to influence tha election of all candi-
dates in the multi-seat system, whereas
blacks must relinquish any oPportunity to
influence the choice of other represen-
tatives in order to concentrate their
votes on the minority candidate. As a
result, white candidates can ignore the
interests of the black community with
impunity. See discussion suPra at,
59-62.



II .

130

Responsiveness

Appellees did not att,empt to prove

minimus evidence

a
t

the unresponsiveness of individual elected

officials. In a section 2 case unrespon-

s ive ness is not an essential part of

plaintiff's case.1 30 Senate Report 29

n.1 15r131 eppellants' de

130 16is Court-held-in Rogers v. Lodge, 458
U.S. 613, 625 n.9, that unresponsiveness
is not an essential factor in establishing
a claim of intentional vote dilut,ion under
the Fourteenth Amendment.

131 Because section 2 protects the right to
participate in the process of government,
'not simply access to the fruits of
governmentn, and because "the subjective-
ness of determining responsiveness" is at
odds wit,h the Congressional emphasis, a
showing of unresponsiveness might have
some probative value, but a showing of
responsiveness has little. United States
v. t'tarengo CounEy, 731 F.20FTffi
ffiock County, 727 F.2d at
381 r on of section
2 despite a finding of responsiveness);
Mcttlillan v. Escambia Count,y, 748 F.2d at



a

131

of responsivenes"l32*"y be relevant rebuttal

evidence, bu! onlY if aPPellees had

at,tempted aL trial to Prove unresponsive-

ness. !|.

I. Tenuousness of the State Policy for

The dist,rict court

ized that while deParture

state policy may be

correctly recogn-

from established

probative of a

a

I
a

1 32 169 only testimony cited to support their
assertion Lhat appellees' "witnesses
conceded that, their legislators were
responsivo'r A. Br. 32, $ras t,he testimony
of one witness who testified on cross-
examination that of twelve Representatives
ard Senators from Mecklenburg County, two,
the black representative and one white
representat,ive, were responsive. JA
184-85. The only other evidence was the
self serving testimony of one defense
witrress, listed in toto in footnote 14 to
appellants' brief . Furthermore, appellants
assertion that. white rePresentatives must
be responsive because "white candidates
need black support to win" A. Br. at 34,
is not supported by the record. In the
challenged districts, white candidates
consistently won without support from
black voters. See, supra, 62 n.69; JA
231 -2.



132

violation of section 2, a consistently

appl ied race neutral policy does not

negate appellees' showing, through other

factors, that the challenged practice has

a discriminatory result. JA 51, citing S.

Rep. at 29, n.117.

In this case, the district court, did

not f ind the application of a consistent',

race-neutral state policy. In fact, after

the Attorney General in 1 981 objected

under section 5 to the 1967 prohibition

against dividing counties, both covered

counties and counties not covered by

section 5 were divided.133 JA 52.

The Attorney General found that the

use of large multi-member districts

" necessarily submerges" concentrations of

black voters in the section 5 covered

counties. Based on the tot,aliLY of

1 33 The challenged plan divided
counties not covered bY Section

ni netee n
5.

.
ar

)

t
a



a
a

133

relevant circumstances, the court below

similarly concluded that,, in the non-

covered counties as weIl, black citizens

have less opportunit,y than white citizens

to participate in the challenged majority

white multi-member districts and to elect

representatives of their choice.

The decision of the district court

rests on an exhaustive analysis of the

electoral conditions in each of the

challenged districts. The lower court

made detailed findings identifying the

specific obstacles which impaired the

ability of minority voters to elect,

candidates of their choice in those

districts. The trial court held

... the creation of each of the
multi-member districts chal-
lenged in this action results in
the black registered voters of
that district .o. having Iess
opportunity than do ot,her
members of the electorat,e to
participate in the political

a

{
I



134

process and to elect rePresen-
tatlves of thetr choice. JA
54.

This ultinate flnding of fact, unless

clearly erroneous, ls sufflcient as a

maEter of law to requlre a findlng of

liability under section 2.

a

:
4

t
t
)
a



)
I

135

CONCLUSION

The decision of the three j udge

district court should be affirmed.

ResPectfulLY submitted,

JULIUS L. CHA!{BERS
ERIC SCHNAPPER
C. LANI GUINIER *

NAACP tegal Defense
and Educational Fund, Inc.
16t,h Floor
99 Hudson Street
New York, New York 10013
(2121 219- 1 900

LESLIE J. WINNER
Ferguson, Watt, Wa1las,
e Adkins, P.A.
951 S. Independence Blvd.
Charlotte, North Carolina 28202
(704) 37s-8451

ATTORNEYS FOR APPELLEES, RalPh
Gingles, et aI.
iCounsel of Record

DATED: AUGUST 30, 1985
:

)