Motion for Leave to File Brief and Brief of Amici Curiae in Support of Appellees of American Civil Liberties Union Foundation, Inc., League of Women Voters of the United States; And, League of Women Voters Education Fund

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Supreme Court of the United States

Octobcr TcrE; llrttt

oN APPEAL FROM'TSE UN@- sSrIES DISIIRICT-qqURr""rofo-Tm i:esiinx orcrmct or NoRf,E cARoLINA

MOrION FOR IJAYE TO FILE-BRIEF_A}TD BnIET OT'-Aiir6 crrBrAE uv srnryqgE 1!E11Ig1s-oL,
.uorrucer* crvll. uBES@S^]Dqgry

3ffi;AlID, IrAGrrE oF wo-MEN vorERs' rpucarroN n ND

Ol Couucd
Maureeo T. Thornton

Lsrotr8 ol Wormr vqrrRs
Eoucerror Fur+o

m;",ff;:,s**

No. &}-196t'

t

IN TEE

I;tsy lL Thoraburg; et aL'

vtL

Ralph Ginglcs, a aL'

Appdlaats,

Appdles.

1.:

I
.)-

Leno.or McDoxrror
NeE BB.ADLET

Amcrican Civil Libcrtics Union
Foundation Inq

52 Fairlic SL. N.'W.

Atlalra, GA 30303

(e) s8-na

Cnrrgil Htrt
I"€a$G of Womco
Yotcrs Education Fund
1730 M. St- N.W.

Washingou D.C. 20035

(202) 429-1965



TABLE oF-CONTFNTS

Page

Table of Authoritles ""ttt

Motlon for Leave to Flle Brlef
oi e.r"r curlae " "x
Interests of Amiel Curlae " "1'

Statement of the Caee " " " "2

SumnarY of Argument" """"2

Argument """5

I. Ttre Electlon of a Token Number

oi t'tttotltY Candlatee Does Not
Forecloee a Seetlon 2

Challenge '
A. The Statute and the

feglstatlve HIatorY" " "'5

B, Congresslonal PollcY-flY"T:
Strong Enforcement of Clvil
Rlghti Laws ""'3o

II. The Dlstrlet Court ProPerlY
Found Raclal Bloo Voting'

A. The Court APPlled Correct

. Stanaaras"" ""36

B. The Court'a MethodolgY
W"s e"c"Ptable""' "'42

-r-



c. This Court Shoul-d Not AdoPt.
i"*i"t;-o"rr"rtron or M6thod
lr"niJt-oi sro" voting ' " '52

Concluelon" '

Appendlx A. "

65

A-1

-11,-
- 111-

25 r60,61

TABLE OF AUTHORITIES

!"9,.1" )

Alexander v. Loulslana'
;o;^[:;:- 6zs lts72) " " " "ss '56's7

Alla1n v- Brooks,
N;. B3-2os3 """48
Berry v. CooPer,
577 F.2d 322
iitn-ar;. 1e7B).... " '55

Bolden v. CltY of Moblle
423 F. SuPP. 384
(s.D. Ala- 1976) "

Castaneda v. Partlda, -
43O U.S. 4BZ (1977).... ....5)r)r

cltv of Moblle v' Bolden'
iae'uli.';;-iigeol " 'Passlm

ClLy of Rome, Georgla v'
Unlted States,
ii)-e. suPp - 22r (D'c' 1e7e) " " '62

cltv of Rome v. United States'
iaa'u.i. iso (rego).... ... - -62

Clty of St. Petersburg v'
United States, 354 F' SuPP'

ii;ri;-to.o .c Ls72).... ... " " " "44

Cases

Crose v. Baxter,
604 F.2d a75
( 5rh clr . 1979 ).. .'

44



Cases, eont'd' paqe(s)

Foster v.
506 F.2d
(5tl ctr.
Garc la .v .

u. s.
(-I9'6at...

Soarksi r

Bo3, 811-37
541975 )

United States,
, .1O5 S. ct. 479

Glngles v. Edmlstenr
59o F. suPP., 345 (E'D'N'c'
1e84)....

'Hunter v. Underwood'
u.s. , 1O5 S' ct' 1916

rc6;i.. *. " "xl
Jones v. CttY of Lubbo"t'-.
73o r .2d 233 , lzt-i 'za 364 xl l I ' 45

(5th clr- 1984) " " " '47 '48'49

Jordan v- Wlnter,
Clv. No. GC-8O-Y|K-O t

iN:;.-'rai""- ni ii 16' 1eB4) """47
KlrkseY v. Board of suPervlsors'
554 F.2d 139
(5rh clr - L977 ). " " "'
Lodqe v. Buxton,
clvl No. 176-55
i;:;.-';;. oct- 26, re78)"""""43

Maior v. Treen,
St'l t. SuPP ' 325
(8.D. La- r9B3)

Mantlel v. BradleY' .

Il-z u.s. r73 lre77 ).. . . .- -

2l

28,38
39 ,42

25

26

49

- 1V-

Cases Pege(s)

McCaln v. LYbrand,'u.s. , 1O4 S.Ct. 103 7
xii

MeMlllan v. Eseambla
748 F.2d 1037

CountY,

( 5rh cIr. 1984) . . .

Ml ss I ss lpPl
Commlttee v.

Republlcan Executlve
Brooks, -U. 

S . t'48,49
105 S.Ct. 4L6 (1984)..-..

NAACP v. Gadsden County School Board'
6el r.2d 978
( llth cir. r9B2) . '

45

45

Nevett v.
571 F.2d

Rogers v.
458 U.S.

Ryblckt
574 F.

Sldes,
2O9 ( 5th clr.

Lodge,

1978).. . .. . . . .45

613 (re82)..

v. State Board of Electlons'
Supp. LI-47

xli
44

(E.D. rl1. 1e83)....--..

SLephens v. Cox,
;;;';:;; ist iatt' cr'. rs71)"""""ss
South Carollna v' Katzenbaeh'
383 U.S. 3O1 (1966).-..

26

30

Swaln v. Alabama,
3BO U.s. zo2 (1965) 53,54

Unlted states v.
Dallas CountY Cornmlgslon'
t3t r .2d fi2b (llth clr' 1e84) " "'sl



Cases, conttd

1e84 )

Unlted Stat'es v' Jenkinsr -

idi-ilza-sz (2d ctr' 1e74)

Unltes States v'
nart""oo CountY Commisslon'
iJi-ilza (lrth ctr' 25,

43 ,45

Velasquez v' CttY of Abilene '
725 F.2d 1017 16
( 5th ctr. 1984)''' '

Whlte v. Regester ' 4L2 U'S' 755

(1973)... - " "passlm

McKelthen,
r;;;-iilt, ir'- 1e73) PasslmZimmer v.

485 F.2d

Zuber v.
396 U.S-

Allen,
168 (196e). -. -

2l

consrltut@
Fifteenth Amendment'

tl

Statutes

2A U.S.C.

42 u. s.c.

42 u. s.c.

42 u. s.c.

$ zoooa

$ zoooe

33
$1861

$1973 "Passim
32

33

Page(s)

-vl -

-va1-

16

Statutes, cont'd

84 Stat-

89 Stat.

96 Stat.

96 Stat.

Federal
Act of 1968.

Seetion 2,

314.. 31

31

3l

10

402. .

13r. .

134. .

Jrrry Selection and Service 33

Page_( s )

34,35

Voting Rlghts Act of

Section 5,
Voting Rights Act of

Title II,
Civil Rights Act of

Title VII,
CiviI Rights Act of

Votlng Rights Act of

1965. .Passim

1965. ......3r

1.965, ---.32.,34

1964. .-..33,34

1965. ...---3O

other Authorities

CONGRESSIONAL RECORD

Cong. Ree. Il7olt""""

Cong. Ree. It3B39' ' ' '

Cong.. Rec- 5693O

Cong. Rec- 56956" "

L27

128

t28

r28

11

24

16



other Authoritles-, eont'd Page(s)

CONGRESSIONAL RECORD

128 Cong- Ree' 56965

128 Cong. Ree' 57139

go"gl,.ss ional- Hear lngs

t
I

L4,24

16

l6

Votinq Rlghts Act:-[."ii"ss Before the subcgt*'

"I-itt"-constltution 
of !h9

Senate comm. of the JudleiarY'
;;i:-1, eTth cong'' 2d sess''

c"_" .ggs " "lggl- RePo r t s

H.R. ReP- No' gl-4' EBth
cons., za sesll'lrsor) " " '32'33

Il.R. ReP- No' 1076' goth
cons., zd sesl] .iigea) " " " "33

House ReP. No. 97-227 ' 97th Cong' '
lst Sess' (1981) " " " "13 'L9'2o

senate ReP. No' g'l-417 ' 97th Cong' '
2d Sess. (1982)"" "Passlm

Voting Rights Aet: RePort of the

Subeomm. on ttle cot'"Litution of
the Senat" Comm' on t|r9^{}ttieiary'
eTth cons., il*;";;' 

-(rssz) " " " "'13

-viii-
- t-x-

House and Senate Bills

H.R. 31r2. .

s. 1992.

!=ss-Gl

11, 16

I6



No-. 83-1968
IF-ffi-

SUPREME COURT OF THE UNITED STATES

LACY tI. TTIORNBURG' ET AL. '

APPellants '
vergus

RALPH GINGLES, ET AL"
APPellees '

ON @TFiTEb.TffitSS
DrsrRrcr couRr'iriit ine EAsIP-RN DrsrRrcr

OT NORTH CAROLINA

l,,rorroN @!Sf-Or AMrcr

CURIAE TN SUPPORT OF APPELI'EES OF

AMERICAN CTVTT' TIBERTIJS UNION

FOUNDATTON,-1uc ' ' 
LEAGUE -OF 

WOMEN

VOTERS OF TH; UNITED STATES; AND'

I,EAGUE OT WOT'I;W VOTENS EDUCATION FUND

organizations, bY

Court for leave

eurlae ln suPPort

the above 1 I sted

eounsel, and move the

to file a brlef amiei

of the APPellees ln'

-x-

the above stYled ."t'"t ' 
1

The Amerlean Clvil Llberties Unlotr

Foundation, rnc. (ACLU) ls a non-profit'

natlonwlde, membershlp organizatlon

whose PurPose is the defense of the

fundamental rtghts of the people of the

United States- A particular concern of

the ACLU is the enforeement of the

Fourteenth and Fifteenth Amendmentsr dnd

lmplementlng leglslatlon enacted by

Congress, ln the area of minorlty voting

rlghts- Attorneys asaociated wlth the

ACIU have been involved ln numerous

votlng rlghts cases on behalf of raelal

minoritles, lncludlng, most reeently 1n

this Court, Hu@'
u. s. , 1O5 S. Ct. 1916 (1985);

lcounsel for
given consent
brief .

Aopellants have not
ti1; f i 11ns of Lh 1s

-xi-

the
to



Is@' u. s. , 1O4

S. Ct. 1037 (1984); 'and Rogers v' Lo'dge'

458 U.s. 613 (1982).

The Ireague of Women Voters of the

United States (LWVUS' or t'eague) 1s a

nat iona I , nonpartlsan, nonprof it

membership organlzatlon with 110'OOO

members in all 50 states' the Dlstrlct'

of Columbla, Puerto Rico 
:1U 

the Vlrgln

Islands- The LWVUS's PurPose 1s ko

promote polltlcat responsibllity through

informed and aetlve partlclpation of

cltlzens In government' The LWVUS

believes voting is a fundamental rlght

that must be fostered and protected'

With its network' the LWVI-IS was a major

participant ln the effort to strengthen

and extend the Votlng Rights Act In

f 982. Leagues and the LWWS have been

aetive in votlng rlghts litigation'

The. League of Women Voters

*xii-
-xli i-

Erlueatlon Fttnd (LwvEF), an af f lliabe of

the Lvivus, is a nonpartisan' nonproflt

educatlon organlzation' one of whose

purposes ls to increase Publlc

undgrstandlng of major public pollcy

issues. The LWVEF provides a variety of

serv ices , i ncl.ud ing research,

publicatlons, monltorlng and llLigation

on current lssuest such as voting rlghts

and election admlnlsLration' The

LwvEF's docket lncludes Jones v' City oi-

!gEbo"k-, 730 F'2d 233' 727 F'2d 364 (5th

Cir. 1984), ln whlch a local League

member was a named Plaintiff'

Thls ease presents lmportant lssues

lnvotvlng the applleatlon of Sectlon 2

of bhe Votlng Rights Act of 1965' 42

U.S.C. $ 1g73, and whet'her the statute

protects equal, oE as argued bY

Appellants and the United States' merely

token mlnority accesE to the political



process. Because of the experlence of

amicl in advocatlng minorlty votlng

rlghts, and beeause the partles may not

adequately present the Section 2 lssues

dlseussed in thls brtef' amicl believe

their views may be of some beneflt to

the Court In resolvlng the lssues ralsed

tn thls aPPeal '

RespectfullY subml tted'

Cynthla D. Hlfl.
Leaque of Women
Vot6rs Educatlon
Fund
1730 M. St-, N-W'
Washinqton, D'C'
20036
12021 429-L965

AttorneYs For Amlcl Curiae
*counsel of Record

(4O4) 523-272L

Of Counsel:
Maureen T. Thornton
Leaque. of Women Voters
ndu6ation Fund

*
Laughlin McDonald
Netl BradleY
Ameriean Civll
Llberties Union
Foundation, Ine'
52 FairIie. St',N'W'
Atlanta, GA 3O3O3

- xlv-

No' B3-1968

IN THE

SUPREME COURT OF THE UNITED STATES

ffi
LACY@L" APPellants '

ver sust
RALPH GINGLES, ET AL"

APPelIees '

ON APP@TM-,9I}1IS
DISTRICT COURT-TON MN EASTERN DISTRICT

OF NORTH CAROLINA

BRIET OF

APPELLEES OF AMERICAN CIVIL LIBERTIES

UNIoN ToUNDATIoN, INC' t !119UE oF woMEN
--'-VotnnS OF THE UNITED STATES; AND'

I,EAGUE OT WOTTNN VOTERS EDUCATION FUND

INTEREST OF A}IICI CURIAE

The interests of amici curiae are

set forth ln the motlon for leave to

file thts brlef , supra, p. x.



STATBUENT OT TEE CASE

Amici adoPt the

case eontalned in

Appellees -

statement of

the Brief

the

of

SUT'HARY OT ARG(nIENT

In ]rgE;z Congress amended Section 2

of the Voting Rights Act' 42 U's'C' $

1973, to make clear its PurPose of

prohibiting votlng procedures that

result ln dlscrlmlnatlon' ' The

eonstruetlon urged uPon this Court by

'the Appellants and the Sollcitor General

that the eleetion of a token number

of minorittes to office in the disputed

tlistr icts of North Carolina' s 1982

Iegislatlve'reapportionment forecloses a

challenge under Seetion 2 -- is totally

ineonsistent with Congress's purposes in

amendlng Sectlon 2'

The Ianguage and the leglslatlve

hlstory of Section 2 expressly show that

there ts no validlty to the argument

that minimal success bY minoritY

candldaEes can be equated with fair and

effectlve partielpation of minorities in

the polltical Process ' Sectlon 2 is

deslgned to proteet the right to equal'

not token or mirrinal' participation'

The extent to which mlnorities have been

elected ls only one of the factors to be

consldered by a court ln evaluatlng a

Seetlon 2 elalm'

Congress has artlculated a PolicY

that favors strong enforcement of clvil

rlghts. sueh a pollcy clearly does not

embraee tokenism or mlnlmallsm ln

vot lng . If the APPellants and the

Sollcitor General prevall ln their

argument, there wl11 be no lncentlve for



jurisdictions to comply voluntarlly wlth

the Voting Rights Aet, but instead they

will be "rr"o,r."g"d 
to reslst and to

eireumvent Section 2.

The district court applied eorrect

legal standards and methods of analysis

ln finding raelal bloc voting' The

imposition of any rigid deflnltlons or

metho<Ioloqies for proving bloc voting

would be lnconsistent with the purposes

of Section 2, would undulY burden

minority plaintiffs and in some eases

would make it impossible.to challenge

discriminatory voting praetlces'

The judgrnent below should be

affirmecl on the grounds that the trlal

eourt proPerlY aPPlted Seetlon 2'

ARGUHENT

I. THE EI,ECTION OF A TOKEN NUMBER OF

ffi mmv--=mDrDAms.---DdEq-EffieelotE@!,Lr---

A. The Statute and the
@

Both the APPellants and the

Sollcitor General, as eounsel for amleus

curiae the Unlted States, argue that the

electlon of a token number of minorltles

to offiee ln the dlsputed districts of

North Carollna's tg9z leglslative

reapportlonment absolutely forecloses

Appellees' challenge to the dlluting

effect of at-large' vot'ing and multi-

member dlstrlctlng under Seetion 2 of

the Voting Rlghts Act of 1965, 42 U's'C'

$ 1973. See Appellant's' Brlef , p' 242

[The deEtee of Buccess at the polls



en joye'l by black t{orth Carol inians is

sufficient tl itsel_f to distinguish Ehis

case f rom lrhigg. f_y:__sSggg!gI_ ,4L2 tJ. S.

755 (19731 and Moblle Iv. Bolden, 446

U.S. 55 ( I9BO) I and to entirelY

discredit the plalntiffs' theory that.

the present legislatlve districts deny

blacks equal access to the political

process." (enrphasis supplied); Brief for

the United States as Amicus Curiae, P.

27 z "multimember districts are not

unlawful wherer :rs here, minoritY

candidates are not effectively sltut out

of the e'lectora1 process.r'1

Ith" solicitor General, underseoring the
extremity of this position, noted that
"It]he elosest analogy to Lhis case 1s
Dove v. Moore, supra, in which the court
of appeals upheld the vali<lity of an at-
large system uuder which the 4Ot black
minority elected one member to an eight-
member city -66uEEif.r (emphasis

Id., at 27-4.suppl ied ) .

-6* -7-

The argument that minimal success

by minority candidates absolutely

forecloses a Section 2 challenge is

refuted by the language of the statute

itself.2 First, the statute requires

2section 2 provides in full:

(a) No voting qual ification or
prerequisite to voting or standard'
practice, or Procedure sha1l be
imposed or aPPlled bY any State or
pofitical subdivision in a manner
itrt"t results in a denlal or
abridgement of. the right of any
citizin of the United St'ates to
vote on account of race or color'
or ln contravenLion of the
guaranteee set forth in section
rgZfU( f) ( 2) of this titler ds
provided 1n subsection (b) of this
sect lon.

(b) A violation of subsection (a)
of this section is established if'
based on the totalltY of
circumstances, it is shown that the
political Processes leading to
irominatlon or election in the State
or political subdivision are not
equalty open to ParticlPatlon bY
mdrntreri of a class of citizens
protected by subsectlon (a) of this
sectlon in that its members have
less opportunlty than other members

IFootnote continued]



tlrat pot it. ical processes , be "equaIly

open" to minorities, and Lhat Lhey not-

have " Iess opportuni ty l-han other

members of Lhe el.ectoral-e to Participate

in the political process and to elect

representatives of ttreir choice." The

right protected bY the statrrte,

therefore, is one of equalr flot token or

minimal, politir:a1 participation'

Seconrl , Lhe statute directs l-he

trial court Lo consider "the totality of

c i rcums tallees " 1n

violaL iotr, and provitles that . " I t]he

evaluating a

extent to which members of a protected

cJ.ass have been elected to of f ice in the

State or political subdivision is one

circumstance which nay be consldered"'

Obviously, if black electoral success is

merery one of the " totalltY" of

circumst-ances which may tre considered by

a court in evaluating a Section 2 claim'

a finding o[ minimal or any other level

of success could not be disposi tive '

The statute on lts face contemplates

that other circumstances may and should

be considered.

The leglslative history of Section

2 makes the Point exPllcitlY' It

provides that factors in addition to the

election of minorities to office should

be considered, and that minorltY

candidate 6uccess does not foreclose the

possibilit'y of dilution of the minority

vote. See Senate Rep' No' 97-417' 97th

of the electorate t-o participate in
Lhe politicat process and to elect
repr"s"trLatives of their cholce.
The exEent to wl'ticlr members oI a
proLected class have been elected
to office in the State or Political
strbdivision is one circumsl-anee
rvhich may l.re considered: P.rrrvitled,
tha t .,6tt i.,g in tlris -"'Eect fon
establ,islres a right t<> have mentllers
of a protectecl class elected in
numberJ; equal to their proportion
in the poptrlation.

-B- -9-



Cong., 2d Sess . 29 n.I15 ( f9B2)

(lrerelnaf ter "senate ReP. " ) .

In 1982, Congress amended Sectign 2

to provide thaL any voting law or

practice is unlawful if it "results" in

dlscrimination on acount of race, color

or membership in a language minority'

96 Stat. at 134, $3, amending 42 t'''S'C'

$ f97i. Prior Eo amendmenL, the statute

1>rovi,Jecl simpl.y that llo voting law or

pract ice " sha l.I be imposed or

appt ierl . . . to denY or abr idge the

r ight . . . to vote oll accounL of race or

color" or membership in a -language

minority.3 A plurality of this Court,

3th" statute provided ln its entirety:
"No voting qualification or prereqtlisite
to voting, or standard, Practice or
procedure shall be imposed or appl.ied by
..,y State or political subdivislon to
,le-ny or abridge ttre right of any citlzen
of the Unlted States to vote on account
of race or eolor, or in contravention of
the gtrarantees set forth in Section
IEootnote continued]

however , in Ci ty - of Jtqp-l-f-g "' - 
golg"tt'

446 U.S. 55,60-1 (1980)' held t'hat "Lhe

Ianguage of $2 no more than elaborates

upon that of the Fifteenth Amendment'"

which 1t found to require purposeful

discrimination for a violation' and that

"the sparse leglslative history of $2

makes clear that lt was intended to have

an effect'no different from that of the

Flfteenth Amendment ltself 
"'

Congress responded directly t" gltf-

of Moblle by amending the Voting Rights

Act. The House, bY a vote of 389 Lo 24'

passed an amendment to Section 2 on

October 5, 19BI - 127 Cong. Rec. H7OlI

( dai ly ed . , oct - 5, 198f ) ' The llouse

bi1l,. H.R. 31I2, provided ( ttre language

ln brackets was deleted and the language

in italics was added) i

1973b(f )(2) of this TitIe"'

-10-
i -11-



As the Report of the tlottse Committee on

ttre Judiciary explainerl , the purpose of

the arnetrdment was " to make clear that

proof of discrlminatory purpose or

intent is not required in cases brought

untler that provisiott, t' and "t'o restate

intent that viotations

Sectlon 2- No voting

ear 1 ier

Vot ing Act, including

established bY

challenged practice .'' llotrse Rep' No'

97-227, 97Lh Cong'r Ist Sess' 29 (fgBI)

(hereinaf ter "llouse ReP"')'

In the Senate' the Subcommittee on

the Constitution' chalred by Senator

Orrin tlaEch, r€jected the Sectiou 2

amendment and reported out a ten year

.extenslon of Section 5 and the other

ternporary provisions of the Act by a

vote of 3 to 2. Votinq -Rights Act :

-o-l--!tte

Const i tut ion

{ggi"l_gry., 97th Cons ' ' 2d Sess. 67

(1982). The senate Judiciary Committee'

however, pursuant to the so-called "Dole

Compromiser " auttrored by sen' Robert

Dole, returned the results standard to

Sectlon 2 and added subsection' (b) 
'

taking language directly from White -v'

Regester, 412 U'S' 755' 766 (1973)' The

purpose of the addition was to clarify

qualification or prereguisi'te to
ri"i i"g , oE standarr:I, Prac t ice ' or
pro""6,rt" shal I be imPosed or
-aopl ied bY any State or Pol i t ical
;;ili"i"io" Itb aenv or abridge) - 

i9-

"-*i"""t 
which resultsjn a denial

ffi-Tre;ifrE-oI-;v
;i-gi;""=f--TE-united states to
vote on account of race or color '
or in contraventlon of the
guarantees set forth in section
iiiltzl. The fact that members of

il#i,rsi+rm5ffi:E:ffi
*Hi#',F"ffitr#fu,8
thi s sect iort .

Congress'

of the

Sec t ion

Rights

2, could be

diseriminatorY effect of theshowing the

-t2- -1 3-



that the amended statute "is meant to

restore the pre-Mobile lega! sLandard

which governed casea challenging

election systems or practices as an

illegal dilution of the minority voLe, "

and "embodies the test laid down by Ehe

Supreme Court in Wh-ite. " Senate Rep. at

27 . The Senate bi 11 al-so provided r ?S

d id the llouse bi lI , that amended

Section 2 did not guarantee the right to

proportiotral representation.

30-1.

Id. , at

The Senate disclaimer was designed

to meet criticism, particularlY bY

Senator ltatch, that the language of the

House bifl would perrnlt a violaEion of

the statute merely upon a showing of

lack of a proportlonal trumber of

minorities in office and "an additiotral

scintilla of evidence. " llotfry.-]l:gnlg
Act: Hearinqs Before the Subcomm. on the

-14- -l 5-

9 "-" *iJgggl'- -q 
!- -t I " -gglgis -, !9m m' 

-o- lJhs
Jurliciary, Vol. l, 97th Cong. , 2d Sess '

s16 ( 1eB2 ) (hereinafter "Senate

Ilearings"). The compromise language was

intended to ctarifY ( if indeed

clarificatlon was needed) that a court

was obligated Lo look at the totality of

relevant circumstances and that, as in

"this Whtte line of cases, " minority

office hotding was "one circumstance

whlch may be considered. "

Eeariqgs at 60 (remarks

Dole). The compromise language,

however, vras not intended to alter in

any way the House bilI's totality of

circumstances formulation based upon

White. That is made clear by the Senate

Report. which Provides that the

Commlttee's substitute language was

"faithful to the basic intent of the

Section 2 amendment adoPted bY the

2 Senate

by Senator



Ilouse , " and was des igned s imply " t:

speIl out more specificallY in the

staLute Ehe standarrl that t'he proposed

amendment is inten<lerl to codify'i'

Senate Rep. at 27 '

1,6e Senate passed Lhe Senate

Judiciary Committee's Section 2 bitl

without change on June 1B' l982' f2B

Cong. Rec- S7I39 (dailY ed" June 1B'

I9B2).4 Tlre .Senate biII (S' 1992) was

re turne<l to the tlouse where i t was

incorporaterl into the llouse Uiif (H'R'

3I12) as a substitute' and was passed

unan imous lY . 12A Cong. Rec" H3839-46

(<laiIy e<l., June 23, f9B2)'

Roth the [Iouse and Senate Reports

4Priot to passage ttre Senate defeated try
a vote of Bl ti'te a proposed ametrdnent

,i"iuiinq ttt. "resu1ts" language from the
Ui rf iritro<luced by Senator John Dast '
iZa Cong. Rec. s69-56, 56965 (daily ed"
.June 17 , 1982) .

- 16- -L7-

g ive detai Iecl guidel ines on the

lmplementation of Section 2 and

corrgress iona l intent in amend ing the

statute. According to the Senate

ReporE, Plaintiffs can establish a

violation by showing "a variety of

factors [taken from S1!g' ziLmer J'

u"[uitrrg, 485 F.2d l2g7 (5th cir' 1973)

(en banc), aff'd on other grounds sub'

nom. East carroll P-arish schogl-Eggfq--v'

Marshall , 424 tJ'S' 636 (f 976) ' and other

pre-Bolden voting casesl ' depending upon

the kind of rule, practice' or Procedure

called lnto question"' Senate Rep' at

2A. TYPical- f actors include:

1. the extent of any historY of
liri"i"r discriminaLion in Lhe

;;;a; "t Potitlcar subdivision that
i"i"t"a-ti" rlght of Lhe members of
tt"- *f""rit'y g.ot,p to register' to
u"t., ot o[fr"-rwtJe to Participa'te
ln the democratic Processi

2. the extent to which voting in
[t" electlons of the state or
p"ifci""1 subdlvlslon 1s racially
polarized;



The f actors se,t out

Report vrere not deemed to

but illustrative:

3. the extent to which the . state
or politicat subdivision has used
unusually l.arge election districts,
majority vote requirements, anti-
single shot provisions, br other
voting practices or procedures that
may enhance the opportunitY for
discriminatlon against the minority
group,

4. it there is a candidate
statlng process, whether the
members of the minoritY grouP have
been denied access to that proceasi

5. the: extent to which members of
the minority group in the state or
political subdivision bear the
effects of discrimination ln such
areas as education, emploYmenE and
health, which hinder their ability
to particlpate effectivelY in the
politlcal procesai

6. whether political camPaigns
have been characterized by overt or
subtle raclal appeals;

7. the extent to which members of
the minorlty group have been
elected to public office in the
jurisdiction.
Id., at 2A-9.

in the Senate

be exclusive,

"whi le these

.IB-
-19-

enumerated factors will often be the

most relevant ones, in some cases other

factors wiIl be indicative of the

alleged dilution. " -I-d-. In ad<li tion,

congress made it plain that "there is no

requirement that any particular number

of factors be proved, or that a majority

of them point one way or Ehe other."

Id. Instead, Section 2 "requires the

court's overall judgment based on the

totatity of clrcumstancea and guided by

those relevant faetors in the particular

case, of whether the voting strength of

minority voters is...'minimlzed or

cancelled out. ' " -Id. , at 29 n - 118 -

The House RePort 1s to the same

effect: "the court should look to the

context of the challenged standard,

praetice or procedurer " and consider

"Ia]n aggregate of objective factors"

taken from pre-Mqts-lle decisions, siurllar



to those set out in the Senate Report'

House Rep. at 30. And like the Senate

Report, the House ReporE provides that

"Ia]rl
proved

of these factors need not be

to establish a Section 2

violation. " _fSl-.

Not onlY does the legislative

history provide that no one factor is

dispositive in vote dilution cases' and

that the courts should consider the

totality of relevant circumstances' but

the argument of the State and the

Solicitor General that minimal or token

minority candidate success forecloses a

statutory challenge was eonsidered and

expressly rejected. WhiIe the extent to

which minorities have been elected to

office is a signlficant and relevant

factor in vote . dilution cases' the

Senate Report indicaLes that it is not

conclusive.

-20-
-2L-

The' fact that no members of a

minority group have been elected to
office bver an extended Period of
time is Probative. llowever' the

"i".ti"" 
of a few minoritY

candidates doe.s not 'necessarily
foreclose thd PossibilitY of
dilution of the black vote' ' in
violation of thls section ' Zimmer
485 F.2d at rroz. If it diil7-me
possibifitY exists that the
iiajority citizens might evade the

="6tion e.g-, by nanipulat'ing the
etection of a 'safe' minoritY
candidate. 'Were vle to hold that a

minority candidate's success at the
polls i" conclusive Proof of a

irinority grouP'e access - - 
to the

politlcif proee"sr w€ would merely
b. inviting atternpts to circumvent
the Constt[ution-. .Instead we shall
continue to reguire an independent

""""lderation 
' of. the record.'

rbid. 
tr

Id., at 29 n.115'

5th" solicitor General attempts - 
to

dlscount the Senate Report on this point
UV arguing that the report "cannot be
tiken -as deterninative bn aI1 counts"'
Brief for the United States as Anicus
iurfa", p. 24 n-49. of course' this
Cour t ha-s " repeated Iy stated that the
authoritative source for finding the
Iegislature's lntent figs in the
cofrmittee reports on the bill"' Zuber
v. Allen, ig6 u.s-' 168, 186 (1959) '
Accord, Garcla v- United States'
IPootnote continuedl



in Fj-1g11=1, re I ied uPoll in Lhe

Senate Report, three black candidates

won at-Iarge elections in East Carroll

Parish after bhe case was tried' The

county argued, 6s the State and

Solicitor General do here, Lhat these

successes "dictated a finding that the

at-large scheme did not in fact dilute

the black vote." 485 F.2d at 1307' The

Fi fth CircuiL disagieed:

r.re cannot endorse the view that
success of black candidates at
potLs necessarilY forecloses
possibility of dilutlon of
UlacX vote. Such success might,
occasion, be attributable to

U. S. , 1O5 S. Ct. 479, 483

the
the
the
the
on

the

Tlffi-4=l . i"-"y case, there is slmply
nothing in the leglslative history to
indicate that there was any disagreement
with the Proposition that "the election
of a few minority candidates does not
' necessarily foreclose the possibillty
of <Iilution of the btack vot€' r ln
violation of this Section-" Senate Rep'
at 29, n. 115.

-22- -23-

work of politi<:ians, who,
apprehendirlg thaE Lhe support of a

fiick candidate would be
politically expedient, campaign to
i.r",rtu hi; elect ion. Or such
success might be attributable to
political suPPort -mot'ivaLed bY
hiff"r"trt considerations - namely
that el-ection of a black candidate
will thwart successful challenges
to electoral .schemes on dilUtion
grounds. In either situation, a

6andidate could be elected despite
the relative polltlcal backwardness
of black residents in the electoral
district.
rd.

Congress as

standard it

S imi lar ly, in Vfhi te v. Reqester,

the case principally relied upon by

embodying the "results"

incorporated lnto Section 2,

and whose language Congress expressly

adopted, two blacks and five Mexican-

Americans had been elected to the Texas

Leglslature from Dallas and Bexar

Counties. 4l-2 U.S. at 766' 76A-69'

Despite that level of minority candidate

success, which is greater than that in



eome of the districts claimed by the

State and the Sr:l icitor General i-o be

immune from a Section 2 challenge ltere'

e.!t, llouse Districts B and 36, and

Senate Districts 2'and 22, this Court in

a unanitnous decision held at-large

elections impermisslbly diluLed minority

voting strength in those counhies'

I n a<ld i t ion to Whi te and Z immer ,

Lhe Congress, in amending Seetion 2'

relied upon some 23 courts of appeals

rfecisions which had applied a results or

ef feet test prior to Cit.y of -Mobirle'

Senate Rep. at 32, J-94i l2A Cong' Rec'

56930 (daily ed. June L7 , 1982 ) ( remarks

of Sen. DeConcini):6 one of those 23

6Tl'," 23 cases are l isted and discussed
in I Senate Hearings at l-2]-6-26
(appendix -to-Fred?EA' sl6lement of Frank
R. Parker, Diiector, Voting Rlghte
Project, Lawyers' Committee for Civll
Rights Under Law).

-24- -25-

c a s e s, K i {5- 1e-y-- v :-P-9g t{ - " l- -s:f=I r }-9 -oE-,

554 F.2d 139, I4g n.2l (5ttr cir- 1977\,

commented upon the continuing validity

of the Zimmer rule that the election of

a minimal number of blacks did not

foreclose a dilution c1aim3 "we add the

caveat that the election of black

candidaEes does'not automatically mean

thaE black voting strength is not

minimized or cancelled out." Accord,

Cross v. Baxter , 604 F-2d 875, B8O n'7,

BB5 (5th Cir. 1979).

Cases declded slnce the amendment

of Section 2 have predictably applled

the .statute ln llght of the legislatlve

hlstory and reJected the contention that

mlnlural or token black success at the

polls forecloses a dilution cIaim. See,

united States v. Marengo Coun_!1

Commisslon, 731 F.2d L546, ]-57L-12 (Ifth

Clr. I9B4) ("it is equally clear that



Lhe el ect ion of c)ne or 't slrt'tI I trirurber crf

minoriLy elecl-ecl officials will I)ot

compel a fin,Jing of no dilution")' cert'

<letrietl' 
---.--- 

tl.S.*-----, f O5 S' Ct' 375

( r rr84 ) ; !qleg,1!1ga.--f-:- --cli !L--.'1..f.--l!l]'r-q-t9,

'lZ":'F.2c1 lOt7, 1O23 (5th tiir. f9B4) ("rn

t-he Setrate Report-.. it was specif ically

not-e<l tl'rat the mere elecLiotr o'! a few

minor i ty candirf ates was rlot su f f icient

to bar a f in<ling of vot itlg <1 [ '[r-rt i on

unr.ler t-lre resrtl ts test ' " ) ; [g:"f :.'

'f r(reri , 57 4 t' - Supp . 325, 3 39 ( E' D' I''d '

teB3 ) ; tyli_gt.-,-..-*y-.-*--91-:' L..- "---nggt9 ---9!

n],_"_g!-|-t-rlq, 574 t'. Sttplr " tIA '. , lISr ant'l

rr.5 (IJ.D. II.1.. (t983).

'flic llecessity <;I i::L.'Ilsj1lr'rtI'Il(l

f act:ors rlther l-ir.rtr tlre e le':t'ir'rtt r-rf

lnjrtr-)rrt-ies tc.r oftice i.s parLicuiarLl'

appa!:enL irr tlr:use I)ist r icL 2'\ (Wak'e

Cotrnty ) alttl llt:ruse Ilistr i ':t' 23 (tlurhain

Courrty), districts irr whictr blacl<s'

-26-
-27 -

accor<liug to Lhe Solicitor General' have

en-ioyetl "proptrrtional representaLion.''

llrief for the Unite<l States as Amicus

Ctrriae Supporting APpell'ants , p'25 '

While one black has been elecLed to the

three member delegation from llouse

District 23 since 1973, and a black has

been elected in 198O ancl t9B2 to the six

member delegation from House District

2L, the district c.ourt f ound this

success vras the resulL of singIe shot

voting bY blacks, a Process which

requires minorities to give up the right

to vote for a full slate of

candidates. Accordlng to the lower

court, "fo]ne revealed consequence of

thls disadvantage Iof a signi ficant

segment of the white voters not voting

for any black candidatel is that to have

a chance of success ln electing

candidates of thelr choice ln these



clistricts, black voters mtlsL rely

exLensively on sing1e-shoL voting,

thereby for fei ting by pract ical

necessity tlreir right to voEe for a full

slate of candidates." ci!9!Sg, 590 F-

Supp. at 369. Under the circumstances,

the election of blacks in these

districts can not mask the fact that the

multi-member system treats minorities

unfairly and dilutes their voting

strength.

Blaek voters ln House District 23

must forfeit up to two-thirds of their

voEing strength and black voters in

House Distrlct 2L must forfei t up to

flve-sixths of Lheir voting strength to

elect a candidate of their c}toice to

offlce. Mrites, by contrast, can vote

for a full slate of candidates'without

forfeiting any of Lheir voting st'rength

and elect candidates of their choice to

-24- -29-

office. Such a system clearly does not

provide black voters equal access nor

the equal opportunity to participate in

the political process and elect

candidates of their choice to office.

That is another. reason why the mere

election of even a proportional number

of blacks to office does not, and should

not, foreclose a dilution challenge. As

Section 2 and the legislative history

provide, a court must view the tglality

of relevant circumstances to determine

whether the voting strength of

minorities is in fact minimized or

abridged ln violation of the statute.

'Io summarize, the positlon of the

StaLe and the Sollcitor General that the

electlon of a token or any other number

of blacks to office bars a dilution

challenge must be rejected because it is

contrary to the express language of



St':ct ion 2, l-he tegislat-ive hist-<-rt y and

the pre-Ploiri-Ie- I ine of c'ases whose

s t.artrlards Cotrgress in':orpora terl into the

" resul t-s" l-esL.

B. Qongressional t'oIicv Favr:rs
s r; "'t:tr6rseraE- le-I - 

gl-Ys :
Lislr-t-{!a!e-

Congress enacted the Voting Rights

Act of 1955 as an "uncommon exercise of

congressional power" designed to combat

Lhe "unremitting and ingenious defiance

of the ConstituEion" bY some

juris<lictions in tlenying minority voting

r i ghts . sou-th- cggrilg- \'j--Kg!g-9lEg9\'

383 U.s. 3Ol, 3O9, 334 (1966) ' Based

upon the continuing need for voting

rights protecLion, Congress extended and

expanded the coverage of t-he Act three

-30-

-3 1-

Limes

would be

irr 1970, tc)75 antl )-982 ''7 I 
"

i I l.og i cal Lo stlPPose , that' i tr

amending Sect ion 2, Congress sutltlelrly

retreated f rom it3 gerreral commiLment-- t-(r

racial equaliEy in voting ancl atlopLed a

statute providing only t-okenism Erntl

minimal political parLicipaLion' That-

is certainly not what the Cotrgress

thought i t was doing ' As Ltre S+:nate

Report provides, the purpose of thP l9B2

TVoting Rights Act Amerrdrnetrt-s of I 970 '
84 Stlt. 3f 4 ( extentiing Sect ion cJ

"or.t.g" 
and the othet: sPec i a L

provi=io,lt of the Act for five mc're
^y."tt; adding jurisdi ct"iorts f or special-"o.r.t.g"; establistring a five year
nationiide ban on literacy tests); Act

"t 
.\ugust 6, L975, 89 Stat ' 4O2

( extending Section 5 and the otlrer
speciaf piorislons for seven atl<l itional
yl"t, i *-uxi.tg permanent the nationwide
L.r, or, ltteraly test's; .exEending Section
5 to language minorities aud requiring
Uif it gr.f " re!istration ancl e-tections in
c"rtuin jurfsdictions); Voting nig!!?
Act Amendments of L982, 96 Stat' 131
(extending Section 5 for twenty-five
years and amending Section 2l'



i.eg islat iorr r^ras to "extend tlre essential

prol:r,:<:tiorrs of the hist-oric Voting

Itiglrts Aet- . . . Ianrl ] insure ttrat the harcl-

rirorl progress of the pasL i s preserved

and that the effort to achieve full

participation for all Americans in our

democracy will conLinue in the

f uttrre. " Senate ReP. at 4.

Modern congressional civil rights

enforcement policy in other areas has

similarly not been one of minimalism.

Congress, for example, clearly intended

to protect more than token access to

public accommodations when it enacted

TitIe II of the Civil Rights Act of

1964, 42 U.S.c. $ 2OOOa et. seg.. See,

H.R. Rep. No. 914, BBth Cong., 2d Sess.

(1e63), IgII_Urte-d in [1e64] 2 u.s. code

Cong. & Ad. News 2393 ( "rt
is...necessary for the Congress to enact

legislation which prohibits arrd provides

-32-
-33 -

the means to terminat itrg the most

serious types of discrimination"')

Congress also sought t'o protecL more

than token access to emPloYment

opportunities and jury service when it

enacted Title vII of the Civil Rights

Act of 1964, 42 U-s-C- $ ZOoOe g!:- .gegj-'

and the Federal JurY Selection and

Service Act of 1968, 28 U'S'C' $ 186r

et. se-q. II.R. Rep. No.9L4, suPra, U'S'

Code Cong . & Ad. News at '24OL ( " the

purpose of this title is to

elininate. . .dlscrimination in employment

based on race, coLor, religion' or

national origin-"), H.R. Rep' No' 1076'

g0th Cong., 2d Sess- (1968), Ie.Pgnted

.il tf9681 2 u.s- code cong. & Ad' News

L?g3 (a major PurPose of the Federal

Jury Act is to establish "an effectlve

bulwark against impermissible forms of

discrimination and arbitrariness in jury



sel.ection.")

Set: L ion 2 does rtot quarant ee

[)ropor t ional representa t i on any more

l-lran T'itl.e II gttarqntees proportional

occLlpancy of Pl aces of Publ lc

accoutmodatiott, of Ti tle VI I guararltees

proportionality in hrrinq, or the

Federal Jury AcL guarantees jur ies t-hat

proportionately rePresent minorities '

F.2d 57, 65 (2d Cir- 1974) ("The Act was

not intended to require Precise

proportional represtentation of minority

groups on grand or Pet'it jurY

panels.") But certainly Title II could

rrot be rationally construed to bar a

challenge to an otherwlse discriminatory

public accommodations policy merely

because any given number of rooms were

let to blacks, nor could Title VI I be

construed to bar an otl'rerwise valid

-34-

-3 5-

employment discrimtnaEion cI-.-li'm merely

because a token number of minorities had

been hi re<I r oor could the Federal Jury

Act be tleemed to bar a challet'rge to a

discriminatory jury selection system

merely because a few blacks were allowed

into the jury pool. Such a reading of

congressional civil rights laws would be

illogical and totally contrary to the

intent of Congress in legislating

against discrinination. Yet, that is

the untenable position of the State and

the Solicitor General in this case'

If the State and the Solicitor

General prevail in their argument, it

will be imPossible to eradicate

discrlminatory election procedures in

places where minority candidates have

had some success. In addition, those

jurisdictions in which black candidates

have had no guccess will be encouraged,



as Congress f ound, to manipulate t'he

election of a "safe" or token minority

candidate to give the appearance of

racial fai rness and thwart successful

clilution clrallenges to discriminatory

election schemes. As a result, there

wiII be no incentive for voluntarY

compliance with SecEion 2, and every

inducement for circumvention and

continued litigaLlon. Future progress

in minority voting rights will be dealt

a severe setback.

II. THE DISTRICT COURT PR.OPERLY POUND

--Eemr-EiDe-r06TrNd;.---.-

The Court Applied Correct
Standards

A.

The State

argue that the

and the Solicitor General

district court applled a

-36- -37 -

legal Iy lncorrect def ini tion of bloc

voting which vitiates its conclusions

that the challenged disEricts dilute

minority voting strength'8 According to

the SLate, the lower court applied the

test that "polarized voting occurs

whenever less than 5Ot of the white

voterg cast a batlot for the black

candidate." Appellants'Brief' P'36'

According to the Solicitor General' the

court adoPted a definition thaL

polarized votlng occurs "whenever 'the

results of the indlvidual election would

have been different depending upon

whether lt had been held among only the

white voters or the black voters in th€l

8rn" State concedes that Appellees'
calculations were basically accurate'
and that the nethods of analysis. ":99
"were standard ln the literature.'' 59O

F. Supp.' at 368-



electir-rlt. '" Brief

as Amicus Crrriae,

cand idate
e lect ions .

for the UniLed SLates

p. 29.

Whi le i t is Lrue, as thd tr ial

court rroterl , Llrat in none of the

electi.rtns did a black carrdi.date receive

it majori.ty of white voLes c.rst, 590 F'

Supp. at 368, and Lhat in alt but two of

tlre elections the results would have

been different depending upon whether

they had been held among only the white

or only the black voters, id-, the court

rlid not base its f inding of bl-oc voting

merely upotr these f acts. The district

court examined extensive statistical

evidence of 53 seLs of elecbion returns

invotving black candidacies in all the

challenged rilstricts, heard expert and

lay testimonY and concluded that:

on the average, Bl.7t of white
voters did not vote for any black

in the pr lmary
In t-he genera 1

elections, white voLers almost
always ranked black candidates

-38-

-39-

either last or next to last in the
multi-candidate field excePt in
heavily Democratic areast in these
latter, white voters consistentlY
ranked black candidates last among

Democrats if not tast or next to
Iast among alt candidates' In
fact, .PPio*imateIY two-thirds of
white voCers did not vote for black
candidates in general elections
even after the candidate had vron

the Democratic primary and the only
choice was to vbte for a Republican
or no one. Black incumbencY
allevlated the general level of

' polarization revealed, but it did
not elimlnate it' Some black
incumbents were reelected, but none
received a majoritY of white votes
even when the electlon was
essent iallY uncontested'
rd.

The court also found that the

polar I zat lon

signiflcant

was statisticallY

rd.9

in every election in that

the probabilltY of it occurring bY

chance was less than one in lOO,OOO'

Taking the oPinlon as a whole' it

9fh" court determlned "statistlcal

"ig"iflcance" 
bY examining the

[footnote continuedl



is clear that the district. court did not

adopt or apply a narrow, simplistic or

Iegal Iy incorrect 'lef inition c>f

polarized voLirrg.lO

The State also contends that racial'

bl<-rc voting in Lhe cl'rallenged dist'ricts

is i rrelevanL r'lhere a black won an

election. Appellants' Brief, pp' 39-

4O: "RaciallY Polarized voting is

correlations between the race of voters
and can<iidates prepared by AppeIIees'
expert. While "correlations above an
ab-solute value of -5 are relatively rare
and correlations above .9 extremely
rare. , . [a]f1 correlations found by Dr '
Grofman in the electlons studied had
absolute values between -7 and .98, with
most above .9. This revealed
statistical significance at the.OOOOI
Ievel - probabilitY of chance as
explanation for Lhe colncidence of
voter's and candidate's race less than
one in IOO,OOO." 590 F. SuPP. at 368
n.30.
lOsoth the state and the sol-icitor
General have oplnions about when bloc
voting is relevant, but. neither, l't
shoutd be noted, attempted to detine
raeial bloc votlng.

-40-

-4L-

signif icant. . 'when the black cantlidate

does not receive enough whiLe support to

win the election" 'The mere presence of

different voting patterns in the wlrite

and black electorate does not prove

anything one way or the other about vote

dllutlon. " Given this analysis' IOO?

voting along racial lines would be

irrelevant in a challenge to multi-

member dlstrict etections if blacks were

able to single-shot a black into

office. Congress indicated in the

statute and the legislative history'

however, that the totatity of relevant

circumstances should be considered ' One

of the relevant circumsLo[c€s r

regardless of other factors that may be

present, is bloc voting'



B. The Court' s Methoq_g]g1------E'?s:Effetrs. --

Irt finding r:aciaI bloc vof.irrg, the

courL below rel ied upon two methods of

statistical analYsis ernPloYed by

Appellees' expert: extreme case analysis

and bivar iate ecological- regression

analysis.ll Both methods are "sLanclard

in the Iiterature," as the lower court

f ounrl, 590 f'. SupP. at 36'l n . 29, and

both have been extenslvely used by the

courts in voting cases in establishlng

the presence or absence of racial bloc

llE*tt"*" case analysis compares the
race of voLers and candidates in
r:acialIy homogeneous precincts '

data from all
the fact that

Regression analysis uses
precincts atrd corrects fot
voters in
homogeneous

homr:geneous and non-
prec i rrets may vote

different.ty. 59O F. Strpp. at 367 n.29.

-42-
'43-

vot ing. l'2

r" r,g49t-ll-e"I!-91, Civ' No' 176-55

(S.D. Ga. oct. 26, 1978), slip op' aL 7-

8, the trial court found racial bloc

voting in Burke County, Georgiia, based

upon sirnple extreme case analysis in tv'o

elections in which blacks were

candidates, a third election in which a

white sympathetic to black political'

l2Not alI cases findlng vote dilution,
however, trave made findings of bloc
voting. Neither White v' Regester,
supra, nor Zimmer v. McKeithen, sllpra,
tha cases principally relied upon by
Congress in establlshing the results
staidard of Section 2, made speciflc
findings that voting vras racialIY
polar iied. The legislatlve hisLory of
Sectlon 2 makes bloc voting a relevant
factor but cloes not indicate that it is
a requirement for a violation. See,
€.9., Unlted States v. Marengo county
Coilmission, T3I F.2d 1546, 1566 (1fth
Clr. l9B4), clting the Senate Report and
concluding that "[w]e therefore do not
hold that a dllution claim cannot be
made out in the absence of raciallY
polarized voting."



int-erests wats a cirnditlate and 'a Iottrl-h

elect-ion in which a black had worr a city

council seaL i n a district wi' r'h a high

percentage of black voters' Tlre court's

analysis and discussion of bloc voLing

is set o.r.rt in APPendix A t'o this

brief. This Court affirmed the findlng

of bloc voting in tsurke County and the

conclusion tlrat the at-large electlons

were unconstiLutional. g"99ls v'-!999g'

458 U.s.613, 623 (1982) ("there was

also overwhelmirrg evidence of bloc

voting along racial lines" ) '

For other cases aPProving the use

of extreme case or regression arralysis

to prove bloc vot ing, see 9!]:-S-!

Petersburs v. United States ' 354 F'

Srpp. IO21, LO26 n.1O (D'D'C ' L9721 '

.f ! 3, 4lO U.S- gAZ (1973); Bo!-9en v'.

f-iJf-g-f--.!!gl:!1., 423 F- supp. 384, 3BB-Be

(S.D. AIa. 1976) ("Regression analysis

-44-
-45-

is a professionally accepted method of

analyzing data."), e-fl'9, 57I F-2d 234

(5th Cir. t97B), rey'd on elbgr groun4s,

446 U.S. 55 (f98O); Nevett v. Sides, 57I

F.2d 2Og, .223 n.lB (5th cir. 1978)

( "bloc voting may be demonstrated by

more dlrect means ag well, such as

statistical analyses, €.9. Bolden v.

Citv of Mobile" ); NAACP v. Gadsden

County School Board, 691 F.2d 978, 942-3

( flth Cir. 1982) ( finding "compelling"

evidence of racial bloc voting based

upon bivariate analysis) ; g"!!gq-gt"!S"

v. , 731 F.2d

L546, 1567 n.34 (lIth Cir- 1984);

McMillan v. n.@, 748 F.2d

1037, 1043 n. 12 ( 5th Cir - 1984 )

(confirming the use of regression

analysls comparing race of voters:"d

candidates to prove bloc voting); Jones

v. City of Lubbock, 727 F.2d 364, 3BO-gf



( 5rh cir.

bivariate
The

I9B4) (aPProving the use of

regression analY"itl '

State contencls, however ' EhaE

bivariate regressiotr analysis is

"severely flawed" antl that the presence

of racial bloc voting can onlY be

estalished by use of a multivariate

analysis 'that tests or regresses for

factors other than race' such as a9€'

religion, income, education' PartY

affiliation, campaign expenditures' or

"any other factor that could have

influenced the election"' Appellants'

Brief, pp. 4l-2.13 The state relies

l3Tlr" solicitor General does n9t support
the Appel lants on this po-int-, but agrees

"itt 
ti" Appellees that "Ii]n most vote

dilutiolr -cases, a Plaintiff can
establish a prima facie case of raeial
Uio" voting by using a statistical
i"iry"i" 6t voting Patterns that

".,r1rir*" 
the race of a candidat'e with

t-he'race of the voters"' Brief for the
tlni t-ecl SLal-es as Amicus Cur iae , P' 30

n.57.

-46-

-47 -

principally upon the concurrinE opinion

of Judge Higginbotham in Jones v' Citv

of Lubbock, 73o F.2d 233, 234 (5th Cir'

1984), denying -Ie!ea-g!g- to-727 F'2d 364

(5th Cir. 1984), in which he says in

dicta that proof of a high correlation

between race of voters and candidates

may not prove bloc voting in every case

and that it "wlll often be essential" to

ellminate all other variables that might

explain votlng behavlor.

Not onlY has this Court exPresslY

approved findings of bloc voting based

upon extreme case and regressibn

analysis, but it has rejected the

contention that multivariate

regressional analysis is required' In

Jordan v. Winter, Civ. No. GC=8O-WK-O

(N.D. Miss. April L6, f9B4), slIp op. at

ll, the three judge court invalidated



under Sect ir:n 2 the struc t ure tsf

l,lississippi's second colrgressional

districE in part upon a fincling of a

,,high degree of racial ly polarized

votitrg"llaseduponabivarial-e

regression analysis conparing the race

of catldidates antl'voters itl the 1982

elecLions ' The Sbate appealed' 4-f ld-g

Y:--!f-99ks, No ' ti3-2053 ' antl chall.errged

the f inding of bloc voting ' ci t:ing Judge

ll igginbotham's conctlrring opitriorr in

Lrrbboclj- (]gr-, Jrrrisdictional SLatemenE

at I2-3 ) .14

14S.. also, Justice Stevens concurring

"pf,ibi-==in 
-. .. ui""issippi Republ lcan

U'xecutive Cornmi ttee v ' Brooks 'u.s. , ioi-s. ct' 416 n'l (1985)'

."EI;;"ife. -ln. Jurisdict ional statement
in'No. B3-2O53 "presents the question
whether the oistrict Court errotreously
f ound. . . that tt't"t,= has been racial'ly
ffi;;i""J ""ti"g in Mississippi "'

-48-

-49-

'fhe use of a regression analYsis
which correlates onLy racial make-

trp of the Precinct' with race of the
candi<lat" :ig"ot"" the reality that
race...nlay mask a ho-st of ol-her
explanatoiy variables" [730 F'2d]
at 235 -

This Court summarily affirmed' sttb !'olnj-

!!-i5glsigippi Republ icjl!----f.l<e!gt.fy-

Committee v. Brooks, U. S.

-' 

IO5

S.Ct. 4L6 (f984), thereby rejecting the

specific challenge to the strfficiency of

bivarlate regresslon analysis to prove

racial bloc voting contained in Lhe

jurisdictional statement' Mandel v-

Bradley, 432 U.S' 173, L76 (1977) '

It should be reemPhasized that

.1u<lge. Higginbotham ruled for the

plaintiffs in Lubjogck' and conctrrred in

the judgment affirming the dilution

finding bY the district court' IIe

concluded that the defendants' other



than criticizi.ng the plaintiffs'

methorJologY, f a i led to of f er any

statistical eviclence of their'own in

rebuttal r €rod that .accordingtY
plaintiffs must. be deemed to have

established bloc voting:

given that there is no evidence bo
iebut plaintiffs' proof other than
the -ity's criticism of Dr '
Brischetto's study anq its attempt
to show resPonsiveness, I agree
with Judge Randall that the record
is not so barren as to render
clearly erroneous the finding bY
the diLtrict, court that bloc voting
was established.
73O F.2d at 236.

Thus, the most that can be argued from

Judge Higginbotham's concurrence ia that

where plaintiffs prove bloc voting by

correlation analysis, the proof must

stand unless defendants rebut

plaint-if f.s' evidence $rith statistlcs of

tlre i r o$rn . Ttre State made no such

rebuttal here.

-50-

record.

-51-

Ln tJni t.ed States v. Dallas _!eg$y-
Commi sg ion, 739 F.2d 1529 (Il-th Cir.

district. court found evidence

voting based upon the

of race of carrd idates wi th

r9B4), the

of bloc

correlat ion

votlng, 739 F.2d al- 1535 n.4, but

discounted it because of supposedly non-

racial factors, €.9. voter apathy, the

advantage of incuftbency, blacks ran as

"fringe party" candidatesr €tc. 739

F.2d. at f536. The court of appeals

rejected these non-raeial explanations

f or the def eat of itack canti idates

because of tack of support in the

record. Id. The case thus approves the

proposition that it is sufficient to

establish raelal bloc voting bY

bivariate analyeis, and if such a

fihaing is to be discounted, there must

be contradicting evidence in the

The State produced no



"or,aruUicLing
as a result

voting was

unavai I ing .

evidence in this case and

its argument that bloc

not proved should be

Congress has adopted . I t migh-t al-so

lead to findings of bloc voting or no

bloc voting in individual cases which,

in view of the totality of factors,

would be simply arbitrary.

lt" CourE has avoided a single

formula approach to proof of
polarization or discrimination in other
areas of civil rights law. In jury

discrimination caaea, for example, this
Court and lower federal courts have user.l

a number of tests for establishing a

prima facie showlng of minority

ex&lusion but have never indicated that

one method of statlst.ical ,analysis is

required in every instance.

In Swaln v. Alabama, 3BO U.S. 2O2

( 1965 ) , the Court indicated that a

disparity as great as 1O* between blacks

1n the population and blacks summoned

for Jury duty would not prove a prima

C. The Court Should Not Adopt a
Ri.i iA--6tf ffi iEi-o n 

- 
o r -M eTiiod"-6r

-+-:--ftooE;fEToc_- -

Aside from requiring polarization

to be signiffcant, this Court should not

adopt any additional definitiOn of

racial bloc voting. Sectlon 2 analysis

requires a court to evaluate the

particular, unique facts of individual

cases. fmposing any rigid definition of

bloc voting ln advance would thus be

ineonslstent with the totality of

clreumstances and lndividual appraisal

approach to dilution claims which

-52-
-53 -



a

facie case of uncons t i tut iona I

underrepresenta tion. Swain

generally apPtied to mean

was

that

disparities in exceael of lOt would be

unconstitutional.. For-ter- v.- SParks, 506

F.2d BO5, 811-37 ( 5th Cir. 1975)

(Appendix to the oPinion of Judge

Gewin). The so-called "absolute

deficiency" method of analysls used in

Swain does not glve a true picture of

underrepresentatlon, however, when the

minority group ls small- For example,

if the excluded group were 2Ot of the

popu'lation and IOt of those summoned for

jury duty, the absolute deficiency would

only be lO3, whereas in fact the grouP

would be underrepresented by one-half.

To meet the limitatione of the

absolute deficieney standard, this Court

and lower federal coprts have also used

a comparative deficlency test for

-54-
-55-

measuring underrepresencaEl<.rrl , py wrrtl-tr

the absolute disparity is divided by the

proportion of the population comprising

t.he specified categorY. Alexander v.

Louisiana, 405 U.S. 625, 629-30 ll-972l

(using both the absolute and comparative

def iciency methods); L.{Ly ,._._!ggpr,

577 F.2d 322, 326 n.11 (5th Cir. r97B);

stephenF_v. cox, 449 E.2d 657 (4th Cir.

1971). Those courts using the

comparative deficiency standard have

not, however, adopted any particular cut

off for raeial exclusion.

This Court has also referred to,

without requiring that it. be ttsed, a

thi rd method of calculaLing

underrepresentation in jury selection,

the statistlcal significance test.

Castaneda v. Partida, 43O U.S. 482, 496

n.17 ll-977lt Alexander v. Louislana,

sqpra, 405 U.S. at 630 D-9, 632- The



Lest measures rePresentativeness by

calculatlng the ProbabifitY of a

dispari ty occrrrring by chance in a

random clrawing from the population' The

district court in this case used this

method of analysis in part to support

lLs fin<ling of bloc voting'

It is aPParent from examining the

cases that this Court has not required a

single mathematical formula or standard

for measuring underrepresentation in alI

jury selectlon cases'and hasr in fact'

expressly declined to do so' Alexander

v. Loulslelg, suPEBr 4O5 U'S' at 630' A

similar approach to proof of bloc voting

in vote diluEion caaes would therefore

be consistent with this Court's

treatmenL of related discrimination

issues in other cases.

It is signlficant that none of the

tests for jury excluslon used by this

-56-
-57-

Court has required chaltrengers to

disprove non-racial factors as the

explanat ion for minor i ty

underrepresentation. Instead, once a

prima facie case has been made using

some form of bivariate analysis, the

courta have held that the burden of

proving selection Procedures are

raclally neutral shifts to electlon

offlclals. Alexander v. Louisiana,

suora,405 U.S. at 632t Casteneda v'
-4

Partida, sgPf,ar 43O U.S- at 497-98', In

thq context of vote dllution litlgation,

def endants rnight attempt to disprove

bloc voting by any method of analysis

they chose, inituaing multivariate

regression analysis, but that should be

no part of Plalntlffs' caae'

It would be PlainIY inconsistent

with the lntent of Congress to require

plaintiffs to conduct multivarlate



analysis in Section 2 cases. In

amentling Section 2 Congress adopted the

pre-I!e!]_t_e di Lut ion standards, and

bivariate correlation analysls vJas an

accepted method of proving bloc

voting. Therefore, this method of proof

shoul.d be satisfactory under Sectlon 2.

Requiring plaintiffs to conduct

multivariate regression analysis would

also shift a courtrs lnquiry from the

result or fact of voting a.long racial

lines to the intent of voters, ttrl

inquiry whlch Congress intended to

pretermi t in amen,il ing Sect ion 2:

Congress adopted the results standard

for three basic reasons. First, the

Bol.clen intent test "asks the wrong

question." Senate Rep. No. 97-4L7 at

36. If minorities are denied'a fair

opportunity to participate in politics,
existing procedures shotrld be changed

-58- -59-

regardless of the reasons the procedures

are beingwere establlshed or

malntained. Second, the intent test ie

"unnecessarily divisive" because it

requlres plaintiffs to Prove the

existence of raclem. Id- Third, "the

lnLent tesb wl11 be an inordinately

dlfflcult burden for plalntiffs in most

ca8eg. tt Id.

It would be tantamount to the

repeal of the L9B2 law to say that proof

of lntent is not required in Section 2

cases, and at the same t irne make

plaintiffs prove that voters were voLing

purposefully for reasona of race to

establish a violation. Such atr

evidentiary burden would again ask the

"wrong questLon, " would be unnecessarily

d i vi s ive and would pl-ace lnord I nately

difflcult burdens on minority

would essentiallyplaintlffs. It



nullify the intent

enacting the statute'

of Congress in

There are a number ol very

practical considerations, not dlscussed

by the State at alI, which further

demonstrate the inherent unfairness, and

in some cases the imPossibilitY, of

requiring minorlty ptaintiffs to conduct

multivariate regression analysis.

(f) ImpgssibilitY. In some cases

it will simply be imposslble to do any

kind of regression analysls, or even an

extreme case anal.ysi", 1.9., where there

is only one or no homogenious

precincts. Requlring a multivariate

regression analysis Ln a city wittr only

one polling place, such as Moultrle,

Georgia, see 9fgss_:l-:._Baxtg!' 604 F.2d

875, BB0 n.B (5th Cir.19791, would

absolutely foreclose a dilution

minoritles werechaIlenge, even through

-60-

totally shut out of the 6rol i t lca I

polar i za t ion vras
Process

complete. l5

absurd and contrary to the lntent of

Congress in amending Section 2'

In still other casea, regression or

even extr6me case analYsis will be

imposslble to perform because election

records no longer exist or cannot be

broken down into precincts ' Such !'as

the situation in Rome, Georgia, where

the trial court nonetheless found bloc

voting and denied Section 5 preclearance

to a number of municiPal voting

Such a result would be

l5tn cross, the court of aPPeals held
simplf-E6E-t a f lndlng by. the trial court
of iro-bloc votlng "on this record" would
be clearly erroieous where "[n]o black
candidate has ever received even a

pi"raflty of white votes and Wilson' the
tirst black elected to the council
.pf..t" to have received as little as 5t
of whlte votes-" Id.



changes. Clty of Rome, Georgia v.

United States, 472 F. Supp. 2zt, 226

n.36 (D.C. L9791 . This Court af,f irmed,

concludlng that the district court did

not err in determining "that racial btoc

vot ing -exi sted 1n Rome. " Ci ty of_ Rome

v. Unlted St1!"", 446 U.S. 156, 183

(re80).

( 2) Quantlf icat,ion. The State

ignores the enormous burden, and in some

instances the imposelbility, of

guantlfying, i.e. expresslng ln numbers,

all the non-racial factors potentlal.Iy

influencing voters. It would be

difficult indeed to quantify candidate

expenditures or name recognitlon, or aB

the State suggests, "pny other factor
that could have influenced the

election, " by preclnct. Appellants,

Brief, pp. 4L-2. perhaps these factors
eould be quantifled through extensive

-62-
-63-

surveys; perhaps not. But in any case,

the attempt to quantlfy them would be

enormously difficult, time consuming and

expensive and in most caaes the burden

on mlnorlty plaintiffs would be

prohlbl tive .

The State's suggeation that

plaintiffs quantlfy and regress "any

other factor" that might have influenced

the elections would send plaintiffs on a

wild goose chase.

possible, both

Even 1f it were

f 1r,ur," 1a1Iy and

llterally, for plalntiffs to provide a

multivarlate analyeis, defendants would

claim as the State has here that

allegedly relevant factors were omitted

and that the analysis thus must faiI.

The State's argument is Little more than

a prescrlptlon for maintenance of

dlscriminatory election practices.

(3) Unavallable Precinct Level



5 ?)

Data. The State fails

"I"r"aror, analYsis is

based uPon Preclnct level

racial daEa is usuallY available'

precinct leveI data for income'

eclucation, etc - , generally does not

exist. The Census contains some of this

information by enumeration districts''or

in some sEates by block data' but not by

precinets. The cost and time involved

in extractng non-racial variables from

ttre Census aL Lhe precinct level' bo bhe

extent tirat tlrey are available at aIl'

would be overwhelming

prohibi tlve.

The StaLe's

Appel lees

analysis is eontrary to Section 2' the

Iegislative history and the prior

decisions of this Court. The finding of

bloc voting and the methodology of the

to note that

almost alwaYs

data. While

not

content ion that

must conduct a multivariate

g).NcLUsIgN

Amlci Curlae respectfully urge the

Court to affirm the Judgment below on

the grounds that the trlal court

properly applled amended Section 2 to

find that North Carolina's L982

teglslative apportlonment impermlsslbly

dilutes nlnority voting strength'

RespectfultY submltted,

lower court

correct.

Laughlin McDonald*
Nell BradIeY
Amerlcan Clvil
Liberties Union
Foundatlon, Inc.
52 Fairlle St.,N-W.
Atlanta, GA 3O3O3
(404) 523-272r

Of Counsel:
Maureen T. Thornton

ln thta case were entlrelY

if Cynthia D. Hill
League of l,lomen
Voters Education
Fund
1730 l{. St., N.W.
Washlngton, D.C.
20036
l2o2l 429-Le65

League of Women Voters, Education
Attorneys For Amicl Curiae

*corlrr="1 of record

Fund

-64-
-65-



b.., ,,D-

,,i*r*rr: ffiffii**, "o'.'ost*-
ln trodge v.-Euxtoni Clv, No' 176-55

(s.D. Ga. oe!-r--?qt--r929-L sliq-' op' at

7-9

There was a elear evidence of bloc

voting the onlY time Blacks ran for

County Commissioner. Obviously' thls

must be ascribed in Part to Past

discrlmination. There are three Militla

Districts ln which Blaeks are ln a elear

majority, the 66th, 72d and 74Lh'7 In a

7rh" court
reasonablY
reglstered
district, as

Preclnct

flnds the following
accurate estinate
voters bY raee
of 1978.

Blatrk White

2, L49

50

tobea
of the

in each

TotaI

3, lgg

94

Waynesboro
60-62 District 1,O5O

Munnerlyn
61sb Distriet 44

I frootrrote contlnueil IA-1

fourth dlstrlet,

there were onlY

Whltes. One

the 69thr Ets of 1978,

a few more Blacks than

black candidate, Mr.

Alexander
63rd Dlstrlct

Sardl s
64th Dlstrlct

Keysvllle
65th Dlstrlct

Shell Bluff
66th Distrlct

Greenscutt
67th Dlstr ict

Glrard
68th Dlstrict

St. Clalr
69th Distrlet

Vldette
71st Dlstrict

GouEh
72d Dlstrict

Mldvi l1e
73rd Distrlct

Scotts Store
74th Dlstrict

75

2LL

163

t67

49

110

29

52

201

184

9B

2,433

A-2

104

474

2L4

a2

215

195

26

LL2

68

r95

52

3,940

t79

689

377

249

264

305

55

L64

269

379

150

6,373Total



-4.:tr
Chllders, won in the four blaek.

dlstrlets, loslng ln all of the

others. The other black eandldate, Mr.

Reynolds, won ln three of the blaek

districts loslng ln all of the othert.B

SlmIlarlY, ln 197O Dr. John Palmer,

a whi te physlcian f rom l{aynesboro, who

open the flrst lntegrated waitlng room

in Burke CountY r r€lrl f or CountY

Commission.. Generally, he waa thought

of as belng sYmPathetle to black

political lnterests. He vraa soundly

defeated.

In the reeent clty eounell election

in Waynesboro, the eounty seat, a Blaek

was eleeted to the council ior the firet

time ln hlstory. This event ean be

Bpr"lntlffs'
filed June 5,
4.

Request for
I97O, Exhlbits

n-3

Admi ss ions,
I-3 and I-

attr ibuted

votlng, and

Black ran

pereentage

to the high degree

to the fact that the

in a distrlct with

of black resldents.9

of bloe

elected

a high

9tt 1" was posslble because this Court
ereated single-member districts. See
Sulllvan v. Deloach, Civll No. 176-23A
(S.D. Ga.) Order entered September 1.1,
t977.

A-4