Supplemental Brief for Appellees Intervenors

    No. 83-1968 

IN THE 

~uprtmt Qtnurt nf tltt Nnitt.b ~tatt.s 
OcTOBER TERM, 1984 

LACY H. THORNBURG, et al., 
Appellants, 

v. 

RALPH GINGLES, et al., 
Appellees. 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

SUPPLEMENTAL BRIEF OF THE 
APPELLEES INTERVENORS 

RoBERT N. HuNTER, JR.* 

ARTHUR J. DoNALDSON 

HuNTER, HoDGMAN, GREENE 

& DoNALDSON 

Post Office Box 3245 
Greensboro, NC 27402 
Telephone: (919) 275-1341 

Attorneys for Appellees-
Intervenors 

*Counsel of Record 





TABLE OF CONTENTS 

I. INTRODUCTION ...•••.•..••.•.....• 

II. THE ULTIMATE FINDING OF 
FACT OF THE DISTRICT COURT 
IS SUBJECT TO THE CLEARLY 

1 

ERRONEOUS RULE. • • . • • • • • • • . • . • • . • 3 

III. THE ELECTION OF A FEW BLACK 
CANDIDATES IN THE DISTRICTS 
IN QUESTION DOES NOT DEFEAT 
APPELLEE'S CLAIM................ 8 

IV. THE DISTRICT COURT'S FINDINGS 
BASED ON THE TOTALITY OF THE 
CIRCUMSTANCES WAS NOT CLEARLY 
ERRONEOUS....................... 15 

v. CONCLUSION •••••••••••••••••••••• 17 





TABLE OF AUTHORITIES 

Cases: 

Anderson v. Bessemer City, No. 
8 3-16 2 3 , s 1 i p op • 14-1 5 ..•••...•.. 

East Carroll Parish School Board of 
v. Marshall, 424 U.S. 636 (1976) .. 

Graves v. Barnes, 343 F.Supp. 704 

6,7 

10 

(1972). ············ ..... ... .... ... 10 

Mobile v. Bolden, 446 U.S. 55 
("1980)............................ 10 

' 
Pullman-Standard v. Swint, 456 u:s. 

2 73 ( 1982) ....................... . 6 

Rogers v. Lodge, 458 u.s. 613, 
( 1982)............................ 6' 9 

United States v. Marengo County 
Comm'n., 731 F.2d 1546 (11th 
Cir. 1984) . ...................... . 

Valasquez v. City of Abelene, Tex., 
725 F.2d 1017 (5th Cir. 1984) ••••• 

White v. Register, 412 U.S. 755 
( 1973) .••....•.................••. 

Zimmer v. McKeithan, 485 F.2d 1297 

5 

6 

10,17 

(5th Cir. 1973)................... 10 

Constitutional and Statutory Provisions 

42 u.s.c. §l973c ••••.••••.••••••••• 2 

Rule 52(a) F.R.Civ.P •.••••••••••••• 5 

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No. 83-1968 

IN THE 

SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1984 

LACY H. THORNBURG, ET AL., 

Appellants, 

v. 

RALPH GINGLES, ET AL., 

Appellees. 

ON APPEAL FROM THE 
UNITED STATES DISTRICT COURT 

FOR THE 
EASTERN DISTRICT OF NORTH CAROLINA 

SUPPLEMENTAL BRIEF OF THE 
APPELLEES INTERVENORS 

Robert N. Hunter, Jr.* 
Arthur J. Donaldson 
Hunter, Hodgman, Greene 

& Donaldson 
Post Office Box 3245 
Greensboro, NC 27402 
Telephone: (919) 275-1341 

Attorneys for Appellees­
Intervenors 

*Counsel of Record 



SUPPLEMENTAL BRIEF OF THE 
APPELLEES INTERVENORS 

I. INTRODUCTION 

Appellees-Intervenors are Republican 

black plaintiffs who had earlier filed 

similar Section 2 action and were subse-

quently allowed by the District Court 

to intervene in the Gingles litigation. 

Earlier the appellee-intervenors had 

joined with the Gingles appellees motion to 

dismiss the appeal and affirm the judgment 

of the court below. Appellee-intervenors 

now desire to file pursuant to Rule 16.6 a 

supplemental brief in response to the 

Amicus Curiae Brief the United States filed 

on April 10, 1985. (cited as "U.S.Br.") 

The Amicus Brief attacks the District 

Court's ultimate findings of fact in this 

action. This argument should not consti-

tute a basis for plenary review of the 

District Court's judgment. 



In enacting the Voting Rights Amend-

ments in 1982, Congress made crystal clear 

that it intended for a district court to 

engage in an intensely local appraisal of 

"historical, social and political factors 

comprising the totality of circumstances 

affecting" the operation of _ the challenged 

electoral mechanism. In determining vote 

dilution no single factor such as the 

extent to which members of a minority group 

h b 1 t d t b d . 't' 1 ave een e ec e . was o e 1spos1 1ve. 

In this action three federal judges, 

all lifelong North Carolina residents, 

engaged in an exhaustive eight part analy-

sis of all of the circumstances embodied in 

the legislative and judicial history, and 

1 Indeed the statute itself 
states that the extent of election of 
members of the protected class "is one 
circumstance which may be considered ••• " 
42 u.s.c. §1973c. 

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carefully weighed how each of those factors 

affects the ability of North Carolina's 

black citizens to participate in ~he 

political process and to elect representa-

tives of their choice. Their unanimous 

ultimate finding was that the use of at 

large elections in the multimember 

districts where there are concentrations 

of minority voters has a discriminatory 

result. All litigants agree this factual 

finding is not clearly erroneous. 

Appellee-intervenors contend the judgment 

should be summarily affirmed by this 

Court. 

II. The Ultimate Finding of Fact of 
the District Court is Subject to 
the Clearly Erroneous Rule 

The United States agrees that the 

proper legal standard for determination 

of Section 2 is whether, considering 

the totality of the circumstances, the 

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challenged electoral mechanism has the 

result of denying minority citizens an 

equal opportunity to participa t e in the 

political process and to elect representa-

tives of its choice. (U.S.Br. 10.) 

Since this is the legal standard that 

the district court - applied (J.S.l2a-13a), 

the question is whether the District 

Court's finding of fact, that the use of 

the multimember districts in question does 

have that result (J.S.Sla-52a), is clearly 

erroneous. 

The United States concedes that the 

subsidiary findings are all correct 

(U.S.Br. 11), but asserts that there 

remains a need for judicial review of the 

ultimate finding on appeal. (Id.) Appel­

lees agree with that the ultimate finding 

-4-



is reviewable, but the scope of review is 

limited by Rule 52(a), F.R.Civ.P. 2 

That ultimate findings of fact are 

subject to Rule 52(a) has been stated 

recently and frequently by this Court. 

2 The United States cites no 
cases in which an ultimate finding of 
discriminatory result was treated as a 
conclusion of law for purposes of review. 
The one case cited decided after Section 2 
was amended in 1982, United States v. 
Marengo County Comm' n, 73l-F.2d-T546-(fJ.th 
Cir. 1984), was not a review of a §2 
determination. Instead the lower court had 
determined that there was no unconst i tu­
tional vote dilution because of lack of 
discriminatory intent, and the Court of 
Appeals remanded for a determination of the 
§2 quest ion. Since the District Court, in 
dicta, had indicated a determination of no 
discriminatory result based on a finding 
that black voter apathy caused black 
electoral defeat, not based on an analysis 
of the totality of the circumstances, the 
Court of Appeals explains the proper 
application of the totality of the circum­
stances standard in much the same manner 
that the district court herein explained 
it. Compare United States v. Marengo Co. 
Comm'n, 731 F.2d at 1563-1566 with J.S. 
IIa-16a. 

-5-



Anderson v. 83-1623, 

U.S. 613, 622-623, 627 (1982); Pullman-

Standard v. Swint, 456 U.S. 273, 287-293 

(1982) 3 Under Rule 52(a), the role of 

the appellate court is not non- existant, as 

the United States implies, ( u.S.Br. 13,) but 

it is limited. As this Court recently 

stated: 

If the district court's account of the 
evidence is plausible in light of the 
record viewed in its entirety, the 
court of appeals may not reverse it 
even though convinced that had it 
been sitting as the trier of fact, it 

· would have weighed the evidence 
differently. Where there are two 
permissible views of the evidence, .the 

3 Considering the determination 
of d iscr imina tory result as a finding of 
fact subject to Rule 52(a) 's clearly 
erroneous standard is consistent with the 
holding of the Courts of Appeals which have 
reviewed §2 determinations since the 
statute was amended in 1982. See, e.g., 
Va1asquez v. City of Abe1ene, Tex., 725 
F.2d 1017, 1021 (5th Cir. l9B4). 

-6-



factfinder's choice between them 
cannot be clearly erroneous. [ c ita­
t ions omitted] 

The United States, based on its 

examination of a small portion of the 

record, has decided that it would have 

weighed the factors and decided the case 

differently than the District Court did. 

That determination is not within the proper 

scope of review, and the re-weighing of the 

myriad facts present in the record to 

determine if the ultimate finding is 

clearly erroneous is not worthy of plenary 

consideration by this Court. 4 

4 The only question of law raised 
is whether the finding of any black elec­
toral success is an absolute bar to a 
determination that §2 has been viol a ted. 
This question of law is discussed in 
Part III, infra. 

-7-



III. The Election of a Few Black 
Candidates in the Districts 
in Question Does Not Defeat 
Appellee's Claim 

The United States asserts that a 

necessary element of a §2 violation is a 

showing that no blacks have been elected in 

each district in question (U.S.Br. n. 12), 

and that multimember districts are not 

unlawful unless "minority candidates are 

•• effectively shut out of the electoral 

process," (Id. at 19). This proposition is 

unsupportable. 

First, the legislative history of the 

1982 Amendments to §2 clearly states that a 

totality of the circumstances analysis is 

to be used, and that no single element 

governs whether there is a violation of §2. 

See e.g., Senate Report at 29, n.ll8 ("The 

failure of plaintiff to establish any 

particular factor is not rebuttal evidence 

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of non-dilution.") Congress did not intend 

for there to be a litmus test. 

This legislative history is consistent 

with this Court's decisions that no one 

element is dispositive on 

illegal vote dilution. 

458 u.s. 613 (1982), 

the question of 

Rogers v. Lodge, 

(findings of 

unresponsiveness of unconstitutional vote 

dilution.) 

Nonetheless, the United States rejects 

that lack of electoral success is a neces­

sary element of a Section 2 violation. 

This proposition has startling results when 

applied to the facts in the record. In 

House District 36 (Mecklenburg County), in 

which one black representative out of eight 

was elected for the first time this century 

in 1982, after this litigation was filed, 

and in House District 39 (Forsyth County) 

in which two black candidates were elected 

-9-



in 1982 following the defeats of black 

candidates in 1978 and 1980. The United 

States would have this Court reverse the 

district court's finding as a matter of law 

solely based on these elections, no matter 

how many losses blacks have suffered and no 

matter what the other factors show. 

(U.S.Br. 16-18. ) 5 

5 In arriving at this conclusion, 
the United States uses a peculiarly myopic 
view of the caselaw prior to Mobile v. 
Bolden, 446 u.s. 55 (1980), completely 
Tgn'OrTng Zimmer v. McKeithan, 485 F.2d 
1297, l307~(5tn-crr~-r9/jf;i3ff 1 d sub nom 
East Carroll Parish School Board of v. 
Marshall~-~lf~-636 (1976), which IS 
cTted-fn the Senate Report for proposition 
that "the election of a few minority 
candidates does not • necessarily foreclose 
the possibility of dilution of the black 
vote•, in violation of this section." 
S.Rep. at 29, n.ll5, citing Zimmer, supra. 
It also ignores the facts of White v. 
Reg i s t e r , 4 1 2 u • s . 7 5 5 ( l 9 7 3 )';--whTch 
aff1ii11ed-the district court's finding of 
illegal vote dilution in Graves v. Barnes, 
343 F.Supp. 704, 726, 732 (l972). The 
extent of minority election in Graves v. 
Barnes (2 blacks elected in one county 
betwee n 1 9 6 6 a n d 1 9 7 1 a n d 5 Me x i c a n 
Americans elected since 1880 in another 
county) is similar to the extent in the 
districts in question here. For example, 
in Wake County, only one black candidate 
had been elected to the House this century 
(in 1980 and 1982). Stipulation 97. 

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Secondly, the United States gives a 

one sided picture of black electoral 

success, which the court below heard and 

rejected. 

follows: 

A more balanced picture is as 

1. While pointing out black elec-

toral successes, the United States ignores 

the defeat of black candidates in 1978 for 

the House from Wake County in 1978 and 1980 

for the House from Forsyth County, in 1980 

and 1982 for the House from Mecklenburg 

County, and in 1980 and 1982 for the Senate 

from Mecklenburg County. ( J. S. 34a-36a. ) 

2. The United States asserts that 

black voters have not only been able to 

elect candidates of their choice but have 

had influence over other seats as well. 

(U.S.Br. 15.) There is no citation to a 

finding of fact or to the record. The 

District Court found just the opposite 

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stating that "to have any chance of success 

in electing candidates of their choice in 

these districts, black voters must rely 

extensively on a single-shot voting, 

thereby forfeiting by practical necessity 

their right to vote for a full slate of 

candidates." (J.S. 4la.) 

3. The United States asserts that 

the District Court found a violation in 

Forsyth County based on general statewide 

elect ion results, not a results from that 

particular district. (U.S.Br. n. 15.) This 

assertion illustrates that the United 

States has an inaccurate and incomplete 

knowledge of the evidence upon which the 

court below based its findings. The 

district court examined the erratic 

successes and failures of black candidates 

for the General Assembly, the Board of 

Education and the Board of County Commis­

sioners for Forsyth County (J.S.App.35a), 

and made its finding concerning the extent 

-12-



of elect ion as to the state generally and 

"specifically in the areas of the chal­

lenged districts." (J.S.38a.) 

The United States' brief is based upon 

imperfect knowledge of the facts showing 

the extent of election of minorities. The 

amicus brief concludes that the District 

Court's finding of discriminatory result 

was erroneous is based on this imperfect 

picture. 

Finally, the United States adopts the 

position of appellants that a Court may not 

give any significance to the racial polari­

zation of voting which exists unless that 

polarization is always outcome determina-

tive. (U.S.Br. 13-14.) Since appellants 

concede that 

polarized to 

degree, this 

the voting was racially 

statistically significant 

is a question of weighing. 

For example, the United States would 

prohibit attaching significance to the 

racial polarization of the voting in 

-13-



Durham County in 1978 because the black 

candidate won even though he received votes 

from only 16% of the white voters in the 

primary, compared to 92% of the black 

votes (J.S.43a), and even though he ranked 

6th out of 7 candidates for 3 seats among 

white voters. Even running as an incumbent 

two-third of whites consistently failed to 

vote for the black candidate. 

The District Court 1 s labeling of the 

polarization of voting as "severe" is 

merely an indication of the weight given to 

facts which are undisputed. Since that 

weighing is not clearly erroneous, the 

district court 1 s labeling of the racially 

polarized voting as "severe" does not 

warrant further consideration by the 

Court. Otherwise, this argument is simply 

another statement of the thesis that a 

-14-



showing of absolute electoral defeat is a 

necessary element of a violation, a thesis 

which, as discussed above, has no basis in 

the Congressional history of §2. 6 

IV. The District Court's Findings Based 
on the Totality of the Circumstances 
Was Not Clearly Erroneous. 

The District Coourt did not "trudge 

through" (U.S.Br. 11) the factors listed in 

the Senate Report. Nor did the district 

court adopt a "proportional representation 

plus" standard (the lack of proportional 

representation plus any one factor) as the 

United States suggests. (U.S.Br. 18.) 

6 Contrary to the assertion of 
the United States, U.S.Br.n.lO, the dis­
trict court did not suggest, even in 
passing, that racial polarization of voting 
was severe if the black candidate got less 
than 50% of the white vote. It did note 
that no black candidate had ever gotten 
votes from more than 50% of the white 
voters. (J.S.App.40a.) 

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Instead, the District Court carefully 

analysed each of the specified factors and 

the manner in which each affects the 

opportunity of black citizens to partici-

pate in the political system on an equal 

footing with white citizens.(J.S. 18a-52a.) 

While the United States considers only one 

factor, 7 the district court weighs each 

of the factors for each of the districts in 

question. The United States concedes that 

none of the findings of these subsidiary 

7 Actually, the United States 
makes a passing reference to two other 
factors, candidate slating and other 
practices which enhance the opportunity to 
discriminate. (U.S.Br. at n.l7.) Even 
this reference is misleading by omitting 
any reference to North Carolina's majority 
vote requirement (J.S.29a), and North 
Carolina's former numbered seat and anti­
single shot vote requirements. (Id.) In 
addition, to the extent that the footnote 
implies that there is a candidate slating 
process which is open to blacks, it is 
mistaken. There is no finding concerning 
candidate slating at all. 

-16-



facts is clearly erroneous. (U.S.Br.ll.) 

The District Court's "intensely local 

appraisal," White v. Register, 412 U.S. at 

769, of the totality of these factors is, 

similarly, not clearly erroneous, and 

should be affirmed. 

V. -CONCLUSION 

The position of the United States' 

amicus brief is unsound and i ncons is tent. 

It is unsound in that it is based upon an 

erroneous presentation of one side of the 

minority electoral success. This presen­

tation and the logical inferences which 

arise from these facts were argued before 

the district court below and rejected. 

"Black candidates who, between 1970 and 

1982, won in democratic porimaries in 

the six multimember districts under chal­

lenge here were three times as 1 ikely to 

lose in the general election as were their 

-17-



white Democratic counterparts." (J.S.34(a)) 

The factual inferences do not require a 

second hearing. The brief is inconsistent 

in that the Justice Department on at 

least three prior occasions, has denied 

preclearance under Section 5 to similar 

North Carolina urban counties redistricting 

plans because the use of large multimember 

districts necessarily submerges cognizable 

minority population concentrations into 

larger white electorates. The amicus brief 

ignores the history of the Justice Depart­

ment's action when confronted with this 

identical problem in areas covered by the 

act. The court below has not confused the 

issue of relevant evidence with the issue 

of legal standard. Based upon the ultimate 

findings of fact which are not clearly 

erroneous, no other logical conclusions of 

law could be drawn. The court should 

summarily affirm the lower courts judgment. 

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Respectfully submitted, 

Robert N. Hunter, Jr.* 
Arthur J. Donaldson 
Hunter, Hodgman, Greene 

& Donaldson 
Post Office Box 3245 
Greensboro, NC 27402 
919-275-1341 

Attorneys for Appellees­
Intervenors 

*Counsel of Record 

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