Motion for Leave to File Brief Amicus Curiae and Brief of Legal Services of North Carolina

    No. 83-1968 

IN THE 

~uprrmr Qlnurt nf tqr llluitr~ ~tutrn 
OCTOBER TERM, 1985 

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 

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE 
AND 

BRIEF OF LEGAL SERVICES OF NORTH CAROLINA 

Of Counsel 
RICHARD TAYLOR 

Executive Director 
Legal Services of 

North Carolina 
112 S. Blount Street 
Raleigh, N.C. 27611 

JULIAN PIERCE 

Executive Director 
Lumbee River Legal Services 
P.O. Drawer 939 
Pembroke, N.C. 28372 

DAVID H. HARRIS, JR. 
BRENDA F. McGHEE* 

SUSAN M. PERRY 

Eastern Carolina 
Legal Services 

P.O. Box 2688 
Wilson, N.C. 27893 
(919-291-6851) 

Attorneys for Amicus Curiae, 
Legal Services of 
North Carolina 

* Counsel of Record 

WILSON· EPES PRINTING CO . • INC. • 789-0096 • WASHINGTON. D.C. 20001 





IN THE 

~uprrmr Qlnurt nf tl]r lluitrb ~tatrn 
OCTOBER TERM, 1985 

No. 83-1968 

LACY H. THORNBURG, et al., 

v. Appellants 

RALPH GINGLES, et al. , 
Appellees 

On Appeal from the United States District Court 
for the Eastern District of North Carolina 

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE 
OF LEGAL SERVICES OF NORTH CAROLINA 

IN SUPPORT OF RESPONDENT 

Legal Services of North Carolina and several of its 
constituent programs move this Court, pursuant to Rules 
36 and 42 of the Rules of the Court, for leave to file the 
attached brief amicus curiae. 

Movant wishes to present views in support of the 'posi­
tion of the respondent (as stated in its brief to this 
Court in support of the motion to dismiss or affirm the 
appeal). This motion is timely pursuant to Rule 36.3, 
since it is made prior to the filing of respondent's brief 
on August 30, 1985. 

Movant is especially concerned about statements con­
tained in the brief for Amicus Curiae, the United States, 



sponsored by the Solicitor General. Its brief contained 
the following statement: " ... there are no present bar­
riers to minority registration or candidacy." Brief for 
Amicus Curiae, the United States at 18 n. 17. 

Movant, as counsel in two ca;ses in the Eastern Dis­
trict of North Carolina, filed pursuant to provisions of 
the Voting Rights Act of 1965, as amended, 42 U.S.C. 
§ § 1973 and 1973c, is convinced that the above quoted 
assertions presented by the United States are factually 
and legally incnrrect. Movant is further convinced that 
arguments in opposition to these specific contentions by 
United States have nnt been presented in full by any 
party or Amici herein. Without unnecessary duplication 
of matter already before the Court, movant presents an 
analysis of these key voting participatinn factors so 
relevant to this case in the accompanying brief amicus 
cunae. 

For this reason, movant Legal Services of North Caro­
lina respectfully moves this Court pursuant to Rule 36.3 
for leave to file the accompanying brief amicus curiae. 

Movant, Legal Services of North Carnlina, has re­
ceived written consent to file this brief from counsel for 
respondent herein by letter dated July 12, 1985. Con­
sent of the appellants, as represented by the Attorney 
General of North Carolina has not been obtained. 

August, 1985 

Respectfuly submitted, 

DAVID H. HARRIS, JR. 

BRENDA F. MeG HEE 

SUSAN M. PERRY 

Attorneys for Movant, 
Legal Services of 
North Carolina 



CONTENTS 
Page 

TABLE OF AUTHORITIES -------------------------------------------- ii 

INTEREST OF AMICUS CURIAE ·------------------------· -···-- · 1 

INTRODUCTION AND SUMMARY OF ARGU-
MENT -·---····-·····--·--- -- -----------------------------------·-----------··------ 4 

ARGUMENT ·--·---------- -- ----·----------------·---·-··-------------------------·-· 5 

I. THE DISTRICT COURT PROPERLY IDENTI­
FIED THE TOTALITY OF CIRCUMSTANCES 
STANDARD IN ASSESSING THE STATE'S. 
PROPOSED REDISTRICTING PLAN PUR­
SUANT TO § 2 OF THE VOTING RIGHTS 
ACT -------------------------·--·---------·--------·----------···-······------·- 5 

II. UNDER SECTION 2 OF THE VOTING 
RIGHTS ACT, THE DISTRICT COURT'S DE­
CISION IS A CORRECT APPLICATION OF 
THE TOTALITY OF CIRCUMSTANCES 
STANDARD TO NORTH CAROLINA GEN-
ERAL ASSEMBLY DISTRICTS ··------------ ---------- 6 

A. The district court's detailed findings of fact 
are correct and support it's conclusion of 
impermissible vote dilution ---- ------------------------ 6 

B. Disfranchisement of Black voters continues 
in North Carolina and currently occurs in-
directly by operation of rules and practices..... 8 

C. The district court correctly considered elec- • 
toral successes as one factor under the to--
tality of circumstances standard -·····-···-·---- -·· - 15 

CONCLUSION --·--·--····-··-··-··-------------------------·-···-·--- ··---------- 18 



ii 

TABLE OF AUTHORITIES 
CASES: Page 

Canady v . Lumberton City Board of Education, 
. No. 80-215-Civ-3 (E.D.N.C. filed Dec. 22, 1980) __ 2 
Green v . City of Rocky Mount, No. 83-81-Civ-8 

(E.D.N.C. filed Sept. 25, 1983) ----- -----------·----- ---·--- 2 
South Carolina v. Katzenback, 383 U.S. 301 

( 19 66.) ---------------·--------·-- ------------- -·----·---- ------------------------ 9 
White v. Regester, 412 U.S. 755 (1973) ------ -- --- ------ 6 

STATUTES: 

N.C. Gen. Stat. § 163-11 ·------- -- ------------------ ----------------- 7 
42 u.s.c. § 1973 -----------·------------ --------·------------ ---------------· 6 
42 U.S.C. § 1973aa-6 ------------------- --- -------------- ---------------- 13 

MISCELLANEOUS: 

C. Davidson, Minority Vote Dilution: An Over­
view (reprinted in C. Davidson, Ethnic Minor-
ity Vote Dilution (1984)) -------- ---- -- ------------------ ---- 10 

Finger, Fly Specks On a Tablecloth: A Profile 
of North Car olina, in The State of the State, A 
Legal Services Perspective on the State of North 
Carolina (1978) ------- -----·--------·------- ----- --- -------------- -- 7 

L. McDonald, The 1982 E xtension of Section 5 of 
the 1982 Voting Rights of 1965: The Continued 
N eed for Preclearance, 51 Tenn. L. Rev. 1 
( 1983) ·--- ----- -- -------------------------------------------------------- ---- 8 

M. Crowell, The Precinct Manual, (1984) ·--- -------- -- 11 
News and Observer, August 14, 1984, at 1, col. L __ 14 
News and Observer, June 2, 1985, at 17A, col. 2_ __ _ 15 
V.O. Key, Southern Politics (1948) ··----------------------- 7 



IN THE 

§uprttttr <nnurt nf t4r lltuitrb §tatrn 
OCTOBER TERM, 1985 

No. 83-1968 

LACY H. THORNBURG, et al., 

v. Appellants 

RALPH GINGLES, et al., 
Appellees 

On Appeal from the United States District Court 
for the Eastern District of North Carolina 

BRIEF OF LEGAL SERVICES OF NORTH CAROLINA 

INTEREST OF AMICUS CURIAE 

Amicus, Legal Services of North Carolina (LSNC) , 
including two of its affiliate programs, is deeply and 
intimately concerned about the outcome of this case. Two 
LSNC ,field programs have represented, or are currently 
representing, plaintiffs in actions filed against municipal 
governing bodies, pursuant to the Voting Rights Act. 
Canady v. Lumberton City Board of Education, No. 80-
215-Civ-3 (E.D.N.C. filed Dec. 22, 1980); Green v. City 
of Rocky Mount, No. 83-81-Civ-8 (E.D.N.C. filed Sep­
tember 25, 1983) . 

LSNC is essentially a statewide program responsible 
for civil representation of poor people in eighty three of 
North Caro:tina's 100 counties. LSNC includes twelve 



2 

geographically based local field programs with multi­
county regions that encompass some of the districts which 
are the subject of this appeal. In addition to the eighty 
three county service area, LSNC includes three special 
client programs responsible for services to migrant and 
seasonal farm workers, State prison inmates and mentally 
handicapped persons. The Legal Services programs in 
North Carolina are funded by the national Legal Serv­
ices Corporation established by Congress in 197 4. 

Overall, Legal Services programs in North Carolina 
receive over 35,000 requests for assistance from eligible, 
low income persons each year, and provide service to 
approximately 25,000 of these persons. There are 1.3 
million persons in North Carolina who are governmen­
tally defined as eligible for legal services. The basic eli­
gibility criterion is that annual gross family income be 
less than 125% of the federal poverty line. 

Racial minorities and Native Americans are dispropor­
tionately represented within the State's poverty popula­
tion served by Legal Services programs. The 1980 Cen­
sus indicates that 51'% of the State's poo·r are white and 
45% are black, though blacks compose only 20 ro of 
North Carolina's population. There are also 55,000 non­
federally-funded recognized Indians in North Carolina. 
Thousands of these legal-services-eligible, low income per­
sons reside in districts which are the subject of this ap­
peal and whose voting rights are affected by this chal­
lenge to the decision below. 

In the Eastern District of North Carolina alone, not 
including the case at bar, no less than five actions alleg­
ing Voting Rights infractions have been filed since Jan­
uary, 1980. These actions, filed pursuant to Section Two 
and/ or Section Five of the Voting Rights Act, affect city 
councils, county commissioners and other elective offices. 
In their respective regions, these local officials make daily 
decisions which impact directly on the health, economic 



3 

and social well being of low income and minority in­
dividuals. Legal Services programs in North Carolina 
have traditionally represented clients in substantive law 
areas, such as housing, consumer and governmental ben­
efit programs which are directly impacted by actions of 
elected local and State officials. 

With the decision of the court below, minorities in 
many North Carolina municipalities and communities 
have benefitted significantly. With the increased oppor­
tunity to participate in the political process and to elect 
representatives of their choice afforded by the decision 
below, minority representation in the N o·rth Carolina 
General Assembly has increased by over 400 o/o since 
1982, rising from a mere three to sixteen such elected 
officials. With this new representation, the General As­
sembly has become more responsive to the needs of mi­
norities, especially low income minorities and other low 
income people, thereby enacting measures designed to ad­
dress their needs. 

An adverse decision in this case by the Court now 
would not only slow the progress achieved, but would 
make for a swift return to the recent past of racial 
contempt when government bodies showed little or no 
sensitivity to issues affecting black and low income citi­
zens. A principle interest of Amicus is the protection and 
preservation of court decisions in voting rights cases 
achieved by its affiliate programs. However, no one 
should misjudge the stunning effect in North Carolina 
of this Court's reversal of the decision below. LSNC's 
interest in this case is thus considerable and justified. 
Affirmation of the ruling below is critical to the con­
tinued easing of racial tensions and stability of voting 
rights in North Carolina, and is justi·fied under Section 
Two of the Voting Rights Act. 



4 

INTRODUCTION AND SUMMARY OF ARGUMENT 

Amicus, Legal Services of North Carolina, urges af­
firmance of the judgment of the United States District 
Court for the Eastern District of North Carolina sub­
stantially for reasons set forth in the respondent's brief 
in support of its motion to dismiss or affirm this appeal. 
Respondent's brief develops with preciseness and force 
one of the keys to an affirmance of the judgment below 
which Amicus explores more fully here: black citizens 
in the challenged districts, and in the State as a whole, 
continue to be denied equal access to the political process 
and equal opportunity to elect candidates of their choice. 

Appellants have argued that the Court find no violation 
of Section Two of the Voting Rights Act where there has 
been some success, however rare, by black candidates 
running for elective offices in multi-member districts. Ap­
pellees and Amicus, however, strongly urge the Court to 
hold that the recent and uncharacteristic election of a 
nominal number of black candidates is but one factor to 
consider. The Court, as a matter of law, must consider 
the totality of circumstances, applying all the objective 
factors enunciated by Congress in determining whether 
there is a violation of Section Two. 

Amicus argues (Point I) that the district court below 
was correct in applying the totality of circumstances 
standard to North Carolina's proposed legislative re­
districting plan. Point I further argues that the three­
judge district court properly identified all the required 
factors identified by the Act, pertinent Congressional his­
tory and relevant case law, and applied these factors to 
the facts of this case. 

Point II argues that, given the totality of circumstances 
that currently exist in the State of North Carolina, as a 
whole, and in the challenged districts, the district court's 
findings of fact and conclusions of law were neither 
clearly erroneous, nor wholly incorrect. North Carolina's 



5 

long history of disfranchisement and vote dilution tac­
tics continues even today. Without strong and effective 
enforcement of the Voting Rights Act, these devices and 
practices would continue, in violation of Section Two, to 
dilute and chill black voter participation. Amicus dis­
cusses many of these rules and practices in detail in its 
brief. Finally, as part of the totality of circumstances, 
Amicus contends that North Carolina's political landscape 
still evidences frequent instances of subtle and not so 
subtle racial appeals in political campaigns. This practice 
places an undue burden on minority candidates and 
hampers their chances of being elected. 

Amicus agrees with respondent that neither the ex­
pressed Congressional intent associated with Section Two 
of the Act, nor relevant federal court cases, provide any 
sanctuary for appellants. The judgment below should be 
affirmed. 

ARGUMENT 

I. THE DISTRICT COURT PROPERLY IDENTIFIED 
THE TOTALITY OF CIRCUMSTANCES STAND­
ARD IN ASSESSING THE STATE'S PROPOSED 
REDISTRICTING PLAN PURSUANT TO SECTION 
TWO OF THE VOTING RIGHTS ACT. 

The opinion of the three-judge court below did ex­
pressly deal with the proper standard for review of a 
Section Two vote dilution claim. Well-instructed by the 
decisions of the various federal courts. and the clearly ar­
ticulated factors set forth in the legislative history of the 
Voting Rights Act, the District Court grounded its deci­
sion in "the totwlity of circumstances." In doing so, the 
district court left little doubt as to its view of the rele­
vant factors which are to be considered in determining 
whether black voters, because of the use of the multi­
member district election system in certain North Carolina 
districts, "have less opportunity than other members of 
the electorate to participate in the political process and 



6 

to elect representatives of their choice." 42 U.S.C. § 1973, 
as amended. 

But even more to he point is the fact that the district 
court's opinion specifically reiterates the pertinent fac­
tors listed in the Congressional reports accompanying the 
Act's passage. J.S. at 13a-14a. This is in addition to 
the court's extensive treatment of White v. Regester, 412 
U.S. 755 (1973), and its progeny. J.S. at 10a-16a. The 
analysis of the court below, with respect to a Section Two 
vote dilution claim, clearly extends to the North Carolina 
redistricting plan. This multi-member election system was 
not open to full minority participation, and under Register 
would constitute a violation of Section Two. 

On this detailed analysis and the fully developed factual 
findings of the district court, there is little need to ex­
plore whether the court understood the Congressional 
mandate and relevant judicial precedents. Unlike the 
position advanced by the appellants, there is no question 
but that the district court considered all relevant factors 
without attaching undue significance to a single factor in 
its analysis. According to case law and the legislative 
history referenced above, the district court thoroughly 
performed the required analysis. 

II. UNDER SECTION TWO OF THE VOTING RIGHTS 
ACT, THE DISTRICT COURT'S DECISION IS A 
CORRECT APPLICATION OF THE TOTALITY OF 
CIRCUMSTANCES STANDARD TO THE NORTH 
CAROLINA GENERAL ASSEMBLY DISTRICTS. 

A. The district court's detailed findings of fact are 
correct and support its conclusion of impermissible 
vote dilution. 

North Carolina has long enjoyed a reputation as a 
mecca for progressive southern politics. Rather than take 
a critical look at the lack of equal participation in the 
State's political process by blacks, . many observers have 



7 

merely compared North Carolina to states like Mississippi, 
Alabama or Georgia which have well-documented histories 
of overt racism. A closer examination of North Carolina, 
however, would have revealed a sophisticated, official sys­
tem operating to effectively limit black voter participation. 

A recent update of the 1948 landmark state-by-state 
study by V.O. Key, Southern Politics, found that upon 
comparing North Carolina's "level of participation and 
modernization of the political process ... and the emer­
gence of race as a significant political issue, what remains 
is a political plutocracy that lives with a progressive 
myth." See Finger, Fly Specs On a Tableclo·th?-A 
Profile of North Carolina, in The State of the State, A 
Legal Services Perspective on the State of North Carolina 
( 1979). As the court found, North Caroiina has a past 
and present history of discrimination against rblack voters 
in registration and voting. J.S. at 51a-52a. In 1900, 
white democrats used an overtly racist "white suprem­
acy" propaganda campaign, violent intimidation and cor­
ruption in voting to persuade voters to amend the State's 
constitution to provide for a poll tax and a literacy 
test, with a grandfather clause designed to limit the dis­
franchising effects of the literacy test to blacks. As a 
result, by 1950, black voter registration and elective 
office-holding virtually disappeared. J.S. at 22a-23a. 

North Carolina legislators enacted numerous other laws 
designed to disfranchise black voters. An anti-single shot 
mechanism was enforced beginning in 1955 which ap­
plied to specified municipalities and counties. A 1967 
numbered seat plan also prevented single shot voting in 
multi-member legislative districts. Both were used until 
declared unconstitutional in 1972. J.S. at 23a. 

The majority vote requirement used in primaries, but 
not in general elections, is another barrier to equal opporr­
tunity of black political participation. N.C. Gen. Stat. 
§ 163-11. Candidates are required to obtain an absolute 



8 

majority of votes (50%, plus one), rather than a simple 
plurality to win. The effect of the majority vote require­
ment is to make it less likely that a minority candidate 
will win an election. Running head--to-head against a 
white candidate, the minority candidate usually is unable 
to overcome the white voter support of his opponent. 

After the removal of direct barriers to voter participa­
tion, the chilling effect of decades of electoral discrimina­
tion, disfranchisement and candidate diminution persists. 
This factor accounts for the relatively low levels of black 
voter registration in the State today. J.S. at 25a-26a. 

In 1981, when this action was commenced, North Caro­
lina ranged among the bottom of southern and border 
states in the number of registered black voters. J.S. at 
24a. The disparity in black and white registration results 
from the past and present official impediments to voting 
which still discourage blacks from participating fully in 
the political process. 

B. This disfranchisement continues in North Carolina 
and currently occurs indirectly by operation of 
rules and practices. 

Striking parallels exist between prior movements for 
enfranchisement of blacks and recent developments in 
North Carolina. The history of black enfranchisement in 
the South has been chronicled at length elsewhere. See, 
e.g., McDonald, The 1982 Extension of Section 5 of the 
Voting Rights Act of 1965: The Continued Need for 
Preclearance, 51 Tenn. L. Rev. 1 ( 1983). 

Until recently, the Attorney General has had a dismal 
record of monitoring and enforcing federal voting laws 
in North Carolina. For example, from 1965 to 1968, no 
North Carolina county subject to the Section Five pre­
clearance provision of the Voting Rights Act submitted 
any voting change for preclearance by the Department. 
I d. at 63 . Thus, the Justice Department has allowed 



9 

the effects of past discrimination to continue to serve as 
barriers to full participation by blacks in the electorate 
in this State. 

Because of its lax enforcement record in North Caro­
lina, the Department of Justice totally misapprehends the 
current lack of equal opportunity for participation by 
black voters in the State's political processes and that 
group's ability to elect representatives of their choice. In 
a footnote to the Attorney General's amicus brief in this 
appeal, the Department makes a bold assertion. To sup­
port its contention that minority candidates elected in the 
challenged districts are both "successful" and "competi­
tive," Brief for Amicus Curiae, the United States at 18, 
the Department states: " ... there are no present bar­
riers to minority registration or candidacy." Brief at 18 
n.17. Nothing could be further from reality. The ma­
nipulation of election procedures today by local officials 
to perpetuate voter discrimination continues to taint 
North Carolina elections. 

This naked assertion, unsupported by any documenta­
tion in the Brief, reflects the Department of Justice's 
ignorance, which no doubt results from depressed voting 
rights enforcement activities in North Carolina. Many of 
the voting practices and irregularities which Amicus dis­
cuss in detail below occur unchallenged in local precincts 
and counties across the State. Few local individuals or 
organizations have the resources and expertise to chal­
lenge any of these practices. The Voting Rights Act, how­
ever, was designed to strengthen the federal government's 
capacity to guarantee meaningful minority political par­
ticipation. 

But neither the Department of Justice, nor appropriate 
State and local agencies, have adequately addressed the 
current subtle and "ingenious" tactics employed at the 
local level which discriminate against and dilute black 
voter participation. South Carolina v. Katzenbach, 383 
U.S. 301, 309 ( 1966). Indeed, in recent conversations be­
tween Legal Services attorneys representing clients and 



10 

Department of Justice officials, Agency personnel have 
candidly acknowledged that their contacts in North Caro­
lina, untH recently, were limited to one or two State 
Board of Election officials. 

Prior to initiation of this pending action and other vot­
ing rights lawsuits filed in North Carolina, the Justice 
Department neither sought, nor encouraged direct com­
munication with local black community leaders or elected 
officials with specific knowledge of elections practices. For 
these reasons, the Department has, through its own in­
activity, remained insulated from and largely ignorant 
of the existing policies and practices carried out by elec­
tion officials. These voting irregularities are present 
statewide and significantly diminish the power of ·black 
voters in this State. J.S. at 21a. 

Disfranchisement mechanisms prevent or discourage 
peopie from voting and may be accomplished directly 
by law, or extra-legally. Davidson, Minority Vo·te Dilu­
tion: An Overview (reprinted in C. Davidson, Ethnic 
Minority Vote Dilution (1984)). Dilutionary mechanisms 
and practices continue to exist which prevent blacks from 
casting an effective ballot. Yet, North Carolina officials 
have failed to exercise the degree of active leadership 
necessary to over.come decades of black voter exclusion. 

Amicus, in the representation of its clients in voting 
rights matters, has discovered the following discrimina­
tory and dilutive voting practices in some counties. in 
North Carolina, including some areas encompassed by 
House Districts 21, 36, 39, and Senate District 22. 

The State Board of Elections, which supervises the local 
boards of elections, has not properly guided the local 
boards and performed its duty to ensure democratic par­
ticipation by all citizens, as required by the United 
States Constitution and the Voting Rights Act. The local 
boards have consistently read State and federal voting 
regulations and laws with the narrowest interpretation. 



11 

But the State Board may train local election officials, is­
sue directives on election procedures, decide election con­
tests, or remove local board members. M. Crowell, The 
Precinct Manual (1984 ) . It is responsible for the fair and 
honest conduct of all elections in the State. Since this 
lawsuit was filed, the State Board has begun to place 
some emphasis on black voter registration. J .S. at 25a. 

Limited accessibility to voter registration opportunities 
and an extreme lack of cooperation by the local boards 
are the rule in many North Carolina counties. Despite 
protest from black democrats who comprise 33.6% of that 
county's voting age population, the Durham County Board 
of Elections is all white. (Px. 58) Racial membership on 
the county boards of elections is tightly controlled by 
recommendations of local political party chairs or, in the 
case of municipal boards, by city council representatives. 
Crowell, supra, at 5. 

Voter registration has been hampered by the Durham 
Board's refusal to allow precinct registrars to register 
voters outside of the registrar's homes. Until the State 
Board intervened in 1982, registrars in the County could 
register only residents of their own precinct. (T p. 657, 
553-55) 

Since official harriers to black voter registration did 
not and do not completely disfranchise blacks, official acts 
at the polling place substantially contribute to the con­
tinued denial of equal voter participation by blacks. Many 
blacks are denied an opportunity to vote due to inordinate 
delays and long lines due to confusion by election officials, 
including failure to locate newly registered voters on 
official lists. Deliberate, or planned inefficiency by local 
boards is aimed at discouraging increased black voter 
participation. These techniques have included inadequate 
personnel to accommodate heavy voter turnout and having 
insufficient numbers of ballots available at predominantly 
black precincts. 

Black voters are often erroneously directed to incorrect 
precincts. This misdirection has an enormous impact due 



12 

to timeliness, and more critically, the lack of available 
transportation ( T p. 686), especially in the State's rural 
areas. There is a general lack of awareness of current 
local and national elections law requirements. As a par­
tial response, the North Carolina Board of Elections has 
recently distributed a few rulings and guidelines, usually 
after official protest of voting irregularities by defeated 
black candidates. But as noted, the laws, rules and reg­
ulations are almost always narrowly defined, as applied 
to black voters at the local level. 

In general, blacks have no immediate recourse for 
denial of the right to vote. Local precinct officials often 
are without authority or refuse to resolve disputes without 
clearance from the county Board of Elections. Due to 
the lack of time and transportation, as noted above, the 
referral of black citizens to County Boards of Elections 
offices (which may be as far away as 18 miles) results 
in denial of the right to vote. For example, over 27% 
of blacks, comapred with about five percent of whites, 
have no vehicle available to them in Forsyth County. 
( Px 57; T. 634) 

Often, precinct or Board of Elections officials may call 
into question the qualifications of a black citizen to 
register or vote. Most often chaHenges relate to the pro­
spective voter's residency. There are procedures under 
North Carolina law for handling challenges by the Boards 
or at the polls. Crowell, supra, at 54-55. Yet, due ap­
parently to lack of familiarity with this process, the chal­
lenged ballot procedure is not used frequently to permit 
exercise of the franchise in disputed situations. If elec­
tion officials uphold a challenge by 'finding a voter is not 
qualified, he may still fill out a special ballot. Crowell, 
supra, at 56. 

Assistance to voters guaranteed under State and fed­
eral law has 'been denied by poll officials in many North 
Carolina counties. The need for voter assistance is critical 
in this State with its high rate of adult illiteracy. Over a 
quarter of Forsyth and Mecklenburg counties' black 



13 

adults, for example, have only an eighth grade education 
or less. So blacks in these counties and elsewhere in the 
State enter the political process with a substantial handi­
cap. ( Px. 56-57) 

North Carolina law permits assistance to any voter upon 
request by a near relative. State law also allows assist­
ance to disabled, illerate or elderly voters. Crowell, supra, 
at 40. Curbside voting is permitted for those physically 
unable to come into the polling place without help. ld. A 
new federal law authorizes aid to the handicapped or 
those unable to read. 42 U.S.C. 1973aa-6. The new fed­
eral law permits assistance to more than one voter by the 
the same person. Repeated assistance to different voters 
had been allowed by poll officials even under the North 
Carolina law. During elections conducted in 1984, precinct 
officials issued confusing and conflicting rulings in re~ 

sponse to requests for assistance by black voters. Pr~ 

cinct officials were warned "to avoid embarassing the 
voter, especially if he is illiterate." Memorandum from 
the ~state Board of Elections to County Boards of Elec­
tions dated February 21, 1984. But many precinct officials 
demonstrated hostile, argumentative, rude and insensitiv-e 
behavior, after receiving requests for assistance. Aid to 
voters was either arbitrarily permitted or denied with 
little or no explanation of the justification. 

Conflicting interpretation over these and other voting 
rights issues has sometimes resulted in verbal confronta­
tions between black voters and white poll workers. Use of 
uniformed officers is not unknown at some polling places, 
particularly in rural areas, to intimidate or harass black 
voters who question illegal practices. 

Voting machines often malfunction due to poor maint~ 
nance in predominantly ,black precincts when the turnout 
is heavy. Precinct workers have been observed in such 
situations carrying ballots in their hands from one loca­
tion to another in the polling place, contrary to State 



14 
ballot counting procedures. Obviously, these practices in­
crease the possibility of ballot miscount. 

Poll officials have also erroneously directed prospective 
voters to discard sample ballots and campaign literature 
before entering the voting enclosure. This misinterpreta.­
tion of the "electioneering rule" has severely impacted on 
illiterate and newly registered voters confused by the 
lengthy and complicated North Carolina ballot. 

Because of the aforementioned voting difficulties, many 
county boards of election are overwhelmed with com­
plaints and problems on election day. The staff of these 
_offices are unprepared to respond efficiently to black voter 
registration problems. Boards of election offices become 
bottlenecks to further impede black voter participation. 

A measurable increase in black voter participation in 
North Carolina has sparked organized opposition and hos­
tility among some election officials and others designed 
to further chill black voter participation. Racial appeals 
have historically been used in statewide elections. J.S. 
31a-32a. In Durham County, for example, racial appeals 
have continued to the present as evidenced in the 1982 
Congressional race and later in the 1984 race for the 
United States Senate. (T. 354; Px 51) Newspaper ad­
vertisements in the Durham Morning Herald have associ­
ated some candidates with striking black teachers in 
another state or alleged expenditures of State funds fo.r 
black voter registration activities. A fundraising letter 
from one of the State's political party chairmen, mailed 
to 45,000 individuals, labeled an increase in new black 
voter registration "freightening" and "potentially disas­
terous." News and Observer, August 14, 1984, at 1, 
col. 1. 

Rumors of an organized plan in North Carolina to 
challenge and disrupt allegedly improperly registered 
black voters abounded during the November, 1984 elec­
tion. This strategy was termed a "ballot security" initia­
tive by its supporters. These and other incidents have 



15 

caused political strategists to note the injection of racial 
issues into more recent North Carolina election cam­
paigns. News and Observer, June 2, 1985, at 17A, col. 2. 

Despite the pervasiveness of the barriers to black voter 
participation in the State, the Justice Department has only 
certified one North Carolina county for federal observers 
under provisions contained in the Voting Rights Act. 

C. The district court correctly considered electoral 
successes as one factor under the totality of cir­
cumstances standard. 

The district court did consider electoral successes. 
However, the district court correctly labeled these still 
limited and recent successess by minority candidates as 
uncharacteristic. J.S. at 37a. We agree, based upon 
our knowledge of the continuing gap between effective 
participation by black and white voters in the State. Of 
critical importance is that the 1982 successes were made 
after this lawsuit was filed in 1981. There are numerous 
reasons for the successes of the 1982 elections. 

For example, two black candidates were elected to the 
General Assembly from Forsyth County in 1982. There 
was an unusually large number of white candidates with 
no white incumbents running. The election of blacks re­
sulted from the whites spreading their votes among other 
whites, rather than more whites voting for blacks. There­
fore, this will not be repeated and cannot serve as an 
indication that black citizens have as equal an oppor­
tunity as do whites to elect candidates of their choice. 
(T. 87) 

As noted, the majority vote requirement is a critical 
tool for disfranchising blacks. J.S. at 52a. The rule 
forces a minority candidate who may have won a plu­
rality to run against the second highest vote getter. 
Generally, the defeated white candidates organize their 
support for the top white vote getter, and the resultant 
runoff usually finds the black candidate defeated. In 



16 

order to offset the devastating effects of the majority 
vote requirements, blacks in 1982 relied heavily on single 
shot voting. Blacks cast one vote for one candidate (in­
stead of the full party slate) to ensure their candidate's 
election, in the process, giving up their right to vote for 
other candidates. J.S. at 41a. 

The "success" of the black voter participation in Dur­
ham County has been heavily dependent upon the ex­
treme use of single shot voting. J.S. at 41a, 44a. Thus, 
the "success" of black candidates requires tradeoffs of 
other voter options. In 1982, single shot voting was prev­
alent in Forsyth County (House District 39) , Mecklen­
burg County (House District 36), Durham County 
(House District 23) and Wake County (House District 
21). (T p. 85, 1437) 

In Forsyth County general elections of 1978 and 1980, 
black voters gave black candidates 34 o/o and 24 o/o of 
their votes, respectively. These black candidates lo·st. (T 
613-622) However, black candidates won in 1982 when 
they received 95:% of the black vote. (Px 15 (b) and 
15 (d) ) There was a sharp increase in concentration of 
voting by blacks in 1982 in Mecklenburg County. Despite 
that, only one of two black candidates was successful, 
even with an unusually low white and Republican turn­
out. (Tp. 144) Finally, single shot voting in 1980 was 
the primary reason that the first black was elected to the 
North CaroHna House of Representatives from Wake 
County in this century. This candidate ran in 1978 and 
received 2to/o of the white vote, but was defeated. In 
1982, as an incumbent, he received less than 40% of the 
white vote. (Stipulation 95, 97, T'. 582, answer to In­
terrogatory #2) 

Through critical sacrifices and hard choices, blacks 
may have limited successes. Whites do not have to make 
the same sacrifices and choices to ensure equal participa­
tion in the electoral process. 



17 

Clearly, the political participation level of Black citi­
zens remains quite minimal. A few unique individuals, 
who have achieved professional status as lawyers, en­
trepreneurs or otherwise distinguished themselves from 
the generally lower socioeconomic lot of most blacks in 
North Carolina, can sometimes participate as candidates 
in the political process. These isolated and still rare in­
stances of limited access to the political process by blacks 
cannot vitiate the still widespread raeial vote dilution 
which continues to exist in North Carolina. 

In many North Carolina communities such as Forsyth 
County, black leaders who have been outspoken about 
issues of concern to the black community cannot get white 
support, and thus cannot win at-large elections. (T. 625-
626) Even a witness for appellants conceded that, if a 
black citizen in Forsyth County wanted to get elected, 
he would "have to keep [his] mouth shut." (Houser 
Dep. at 42-43) Thus in recruiting candidates for at­
large elections, the black community must look for a 
"lightweight" ( T. 625-626) 

Similarly, . the ·president of the Durham County Com­
mittee on the Affairs of Black People testified below 
that his organization limits recruitment of candidates 
to those who can appeal to the white community. Thus 
blacks, as opposed to whites, must be businessmen or 
l·awyers and must start with high name recognition. (T. 
665-666) Those who have been outspoken in support of 
unmet needs of the black community are not considered 
viable candidates. 

The degree and extent of the above mentioned dilutive 
practices will, of course, vary from county to county. Of 
significance in comprehending these devices is their cu­
mulative and combined effect. Under certain circum­
stances, the totality of impact may account for the loss 
of hundreds of votes denied to minority candidates. These 
votes would have provided the margin of victory to a 



18 

minority candidate in a 1984 primary election for an 
Edgecombe County commissioner's seat. No North Caro­
lina county-and certainly not any of the districts which 
are the subject of this appeal-has completely rid itself 
of black voter and candidate discrimination. 

CONCLUSION 

For the foregoing reasons, Amicus, Legal Services of 
North Carolina, respectfully requests that this Court 
affirm the judgment of the United States District Court 
for the Eastern District of North Carolina. 

Of Counsel 
RICHARD TAYLOR 

Executive Director 
Legal Services of 

North Carolina 
112 S. Blount Street 
Raleigh, N.C. 27611 

JULIAN PIERCE 

Executive Director 
Lumbee River Legal Services 
P.O. Drawer 939 
Pembroke, N.C. 28372 

August, 1985 

Respectfuly submitted, 

DAVID H. HARRIS, JR. 
BRENDA F. MCGHEE 

SUSAN M. PERRY 

Eastern Carolina 
Legal Services 

P.O. Box 2688 
Wilson, N.C. 27893 
(919-291-6851) 

Attorneys f01· Amicus Curiae, 
Legal Services of 
North Carolina 










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