Motion to Dismiss or Affirm

    ,

No. 8r-1968

IN THE

SUPREME COURT OF THE UNITED STATES

0cT0BER TERM, 198'

RUFUS L. EDMISTENT et al.,

Appellants,

V.

RALPH GINGLES, et a1.,

Appellees.

0n Appeal From the United Stetes Distriet Court
For the Eaetern District of North Carolina

MOIION TO DISH.ISS OR AFFIRM

JUL I US CHAMBERS
LANI GUINIER*

NAACP Legal Defense
and Educational
Fund, Ine.
1 6th Floor
99 Hudson Street
New York, New York
(ztz) ztg-'tgoo

LESLIE J. rtINNER
Fergueon, l{att ,
Wallas, and Adkins, P.A.
951 S. Independence
Blvd.

Charlotte, North Carolina
28202

(to4) 375-8461

Attorneys for Ralph Gingles, et al.
Appellees

*Counsel of Record



.I

QUESTIONS PRESENTED

I. In this action brought undor Sectlon 2

of tha Voting Rights Act' the Diatrlct

Court found ea a matter of fact that, under

the totality of relevant circumstancoa in

North CsroIina, the uBe of the challenged

legialative districte results in black

voters in those districte havlng Iesa

opportunity than do other nembera of the

electorate to participate in the polttlcal

proceBB and to elect repreaentatives of

their choice.

llere theee findinge of fact clearly

arronooue under Rule 52(a)?

II. Doee admlniatretlvB preclearenco of a

legisletive diatrict under Section 5 of the

Voting Rights Act ebaolutely bar private



- lt

parties from Iitigating

that district under Section

Rights Act, in the Face of

language to the contrary?

the legality of

2 of the Voting

elear statutory



-iii-

TABLE OF CONTENTS

l.l0TI0t{ T0 DIStIISS 0R AFFIR},1 ...........
STATEI,IENT 0F THE CASE ... ... . ,. r. o......

Peo e

1

2

I. THE DISTRICT COURTIS DETERI,IINATION
THAT NORIH CAROLINAIS GENERAL
ASSEI,IBLY DISTRICTS VIOLATE $ Z OF THE
VOTING RIGHTS ACT IS BASED ON THE
CORRECT STANDARD AND IS NOT CLEARLY
ERR0NEOUS .o............r........... I
A. The Diatrict Court Applied the

Correet Standard 1n Determining
That the Electlon Dlstricts ln
Question Have e Diecrlminatory
Rgault ..... ..... ..... . .... o . I

B. The District Courtfs Ultimate and
Subeidlary Findings Are Not
Clearly Erronaoua .o......... 14

1. Tha Court l{eighed the Par-
ticuler Circumetancea Rele-
vant to Thie Actlon ln
l.laking Its Ftndings ..... 14

2. The Dlstrict Court's Findlng
oF Raclally Pblarizpd Voting
ia Not Claarly Erro-
nOOUA ... r ... r.. ........ 22

. , - The Dletrict'Court's UIti-
mate Findlng of Diserimina-
tory Raault ie not Clearly
ErrongouS r '.......... o.. 15



-IV

Pag e

II. THE DISTRICT COURT PROPERLY CON-
SIDERED ALL THE STATE I S EVIDENCE 42

III. PRECLEARANCE UNDER SECTION 5
OF THE VOTING RIGHTS ACT DOES
NOT BAR APPELLEESI CLAIM UNDER
SECTI0N 2 ........ 45

C0NCLUSI0N ..... ....... o...... 56



TABLE OF AUTHORITIES
Caseg:

Alexander v. Gardner-Denver Company,
415 U.S. ,6 (tglq) ...............

AIlen v. McCurry, 449 U.S. 90
( 1980) . . . ........ .... ... .... r... o

Chandler v. Roudebuah, 425 U.S. 840
(tgle) ...r.....................!.

Cooper v o Aaron , ,58 U. S. I ( 1 958) ... .

Donnell v. United Statea , 682 F .2d
24O (0.C. Cir. 1982) .............

Eaat Carroll Parish Sehool Bd. v.
Marshall, 424 U.S. 6t6 (tgte) ....

Jones v. City of Lubbock, Tex., 727
F.2d 

'64 
(Sttr Cir. 1984) ........

Paqe

51

50

54

12 r27

14r15

51

45

Kirksey v. Board of SupervLaore, 554
F.2d 1r9 (Sttr Cir. 1977 ) ....... 41

Kremer Yo Chemical Conetruction
Corporation, 456 U.S. 461
(1982) .... o.................... 50

l,laJor y. Treen, 574 F. Supp. ,25 (8.D.
Le. 198r)(tnree Judge court) ... ,4r40r48



l.{atter of l.{errill, 594 F.2d 1064
Cir. 1979 ) ................

v1

l.lonroe v o Bd. of Comnieaionere,

. :::n
,91

u.s. 450 (1968)

l,lorris Yo Gresaette, 4rZ U.5. 491
(1977) .. o............. o. .....

NAACP v. Gededen Co. School Bd.
691 F.2d 979 (tttrr Cir. 1982) ....

Porter end Dietsch , Ine . v . F. T. C. t
605 F.2d 294 (Ztn Cir. 1979),
cert. denisd.
E[fu.t::Tltf(1979) ............. 51

Pullmen-Standard vo Srint, 456 U.S. 27,
(1982) ............ o...... o. o. o. 15

Rogera v. Lodge, 458 U.S. 61, (1982) ... 15rtz

Rybicki v. State Bd. of Election of
IIlinoia, 574 F. Supp. 1147 (E.0. I1l.
198r)(tnree Judge court) ......... 14r40

Swann v. Charlotte-Mecklenburg Bd.
o.f Ed., ,06 F. Supp., 1291 (w.D.N.C.
1'969 ) gllLd., 4O2 U. S. 1 (1971) ..... 44

Unttrd States v. East Baton Rouge
Parleh Sehool Bd., 594 F.2d 56 (Sttr
Cir. 1979 ) .............. t........ 48

United States v., ),larongo 1 Co., Comn. , 7r1
F.2d 1546 (ttttr Cir. 1984) 14r40

14r15
Velaaquez v. City of Abileno Tex., 72,

F.?d 1017 (:tn cir. 19s4)

Paoe

,0

45

5, ,54

27 r41



- Yii -

Paoe

t{hitcomb v . Chavie, 40, U. S. 124
(1971) .............o............... 40

l{hite v. Regester, 412 U. S. 755
(lgll) ................ o... 12r1rt41 )42

Zimmer v . l,lc Keithen, 485 F .2d 1297
(:ttr Cir. 197t ) ............

Conetitutlonal and Stetutorv Provleione

U.S. Congt. amend. XIV ..o........

Yotlng Rtghte Aet Amendnent qf 1982,
Pub. L. No. 97-205, 96 Stat.
1r1 (lgAZ) ...................

Rule 52(a) F. R. Clv. P. ....".......
28 CFR $ 5t.41 ...................
28 CFR $ 51.46 .....r....rrJoroooo

Lsolelative Hletorv

S. Rep. No. 97-417, 97th Cong.i2d

12 r27

o aaalm

-

t2

Voting Rights Act of 1965, 42 U.S.C.
, $ 1971(c) ........ r........... o.... pqg8im

15

5'

55

Sesg. (1982) .........o..... 9r10r1rr17t
54r41r48r49r50

H.R. Rep. No. 97-227,
1 st Sesa. ( 1 981 )

97th Cong. ,
9 ,48aaa

0ther Authoritiee

Ilright, l.llller end Cooper, Federql- Piactlce and ProceduraF
. ...... 50



-1

No. 8r-1968

IN THE

SUPREME COURI OF THE UNITED STATES

0cToBER IERM, 198'

RUFUS L. EDI.IISTEN, et el .,
Appel I ante ,

y.

RALPH GINGLES, et 81.1

, Appel l eea . -!

0n Appeal From the United States
Dietrict Court For the Eastern

District of North Carolina

H0TI0l,l. T0 DISl.lISS 0R. AFFIRI.I

Pursuant to Rule 16.1 , Appelleee,

RaIph Gingles, et el. e move that tha Court

dismiee the appeal or affirm the judgnent

balow on the ground that the queatione on



-2

which the decision of the

ao unaubetantlal ea not

argument.

ceaa dapcnds are

to need further

Statement of the Caee

Appelleas filed' this a'ctlon on Sep-

tember 1 6, 1981 , challcnging the 1981
,;

epportionment o'f both houses of the North

Carol ina General Aesembly ( nthe General
,.

Aedenblyi) on'the grounds, j3lgg IIIB, that

the epportionmenta w6re illegal and

unconstitutlonal in thatr (1) each had been

enacted purBuant to provielone of the North

Cerolina Constltutlon which wore required

to be but had not been precleared under

Section 5 of the Voting Rights Act of 196r,
1

e8 amcndad, 42 u.s.c. s 1975c ('s 5 of the

Forty of North
tiee are covered
Voting Righte Aet.

.Carolinara 100 coun-
by Section 5 of the



,-

Votipg Righta Actn or nsection 5'); and (2)

the uae of multi-nember dietrlcts illegally
aubrerged nlnority population coneentre-

tiona end dil utad minority voting atrength

in violation of the Conat,itution and

Section 2 of the Voting Rights Act of 1965,

as amended, 42 U.S,C. S 197r.

After the Complaint wea filed, the

State of North Carolina submitted the

provisions of the North Caroline Consti-

tution, rhich prohibit dividing countiea in

the formation of a legislative dietrict,
for precl eerance under Section 5. The

Attorney General, 1n a letter eigned by

l{illiam Bradford Reynolde, objected to the

proviaiona, finding that the uae of large

multi-member diatricts r necesBar il y

eubmergea cognizable minority population

concentratione into larger white elee-

torates.x Jurledictional Statement at 6s.



-4

The Attorney General, acting through

Reynolde, also found the 1981 House, Senate

and Congreseional plans r 8e well ea two

subsequent House plans and one subsequent

Senate pIan, to be recially diecriminatory.

Deepite warnings from speeial counsel,

black citizenst groupar and varioue

legislators thet the use of multi-member

districts could result in impermissible

dilution of black citizenar voting

strength, the General Assembly continued to

use this method in the House and in the

Senate. At en 8 day trial in July 198,

before all three judges, appellees chal-

lenged six of the multi-member districts,
five in the House and one in the Senate.

Appellees also challenged the configuration

of one single member Senate District. Five

o f the challenged dietricts consist



E

entirely of counties not covered by Section

5 and, therefore, were not aubject to the

Attorney Generalrs review.

0n January 27, 1984, the Honorable J.

Dickson Phillips, Jr., writing for the

unanimous Dietrict Court, found that black

citizena of North Carolina do not heve en

equal opportunity to participate in the

Staters political system and thet uae of

the challenged Iegielative dietricts
illegall y minimizes their opportunity to

elect repreBentetives of their choice. The

District Court made extensive and meticu-

lous findinge that there currently existe:
a dieparity between black and white voter

registration which ia a Iegacy of paet

intentional disfranchieement; savere socio-

eeonom ic i nequit ies which result from

past diecrimination and which give rise to

a commonal ity of intereate within geo-

graphically identifiable black communitiee;



6-

mininal eleetoral aucca8a of black candi-

datee; the uae of recial appeale ln cam-

paigns;. and a peralstent feilure of most

white yotere to vote for black eandidetes.

In Ehort, the Court found thet, while there

has been aome progrosa, the gep between the

ability to partieipate of rhite and black

votere renains substantial.

Based on theee flnding the District

Court entered a unanlmous 0rder which

declered that the spportlonment of the

General Asaembly 1n six chellenged multi-

menber dietricts end one elngle member

dietrict violate Section 2 of the Voting

Rights Act, and enJolned eleetione in those

diatricts pendlng court epproval of a

dietrieting plan which does not violate
2Section 2.

AppeIIeee did not challange el1
multi-member dietricte used by the State
nor did the District Court rule that the
use of multi-member districts ie pBD ae
illegal. The Dietrict Court'a 0rder TE?vEt'



-7

Appellanter petition for a atay of the

0rder wea unanimouely denied by the

Dietrict Court, and waa subsequently denied

by Chief Justice Burgerr of, February 24,

1984, and by the full Court on llarch 5,
,

1984.

untouched f0 multi-member districts in the
Houee end 1, in the Senate. The Dietrlct
Courtfe 0rder did not effect 48 of North
Carolinare 5t Houee of Repregentative
Dietricte end did not affect 27 of North
Carolinars 29 Senate Dlstricts.

By subeequcnt orders, the District
Court approved tha State t s proposed
remedial districts for aix of the aeven
ehellenged diatricte, and primary elec-
tiona have been held in those diatricte.
The Dietrlet Court hae not acted on the
Defendantar propoeed remediel apportion-
ment of ona district, former Houea
Diatrict No. 8, pending precleeranco of
defendantat proposal under Section 5.



8-

ARGUilFNT

I. THE DISTRICT COURTIS DETER-
I.IINATION THAT NORTH CAROLINA I S
GENERAL ASSEI.IBLY DISTRICTS VIOLATE
SZ OF THE VOTING RIGHTS ACT IS
BASED ON THE CORRECT STANDARD AND
IS NOT CLEARLY ERRONEOUS

A. The District Court Applied
the Correct Standard in Determining
That the Eleetion Dietricte in Quea-
tion Have a Diecriminatory Result

Seetion 2 of the Voting Rights Act waa

amended in 1982, by the Voting Rights

Amendrienta of 1982, 96 Stat . 1r1 ( June 29,

1982)', to provide that a claim of unlawful

vote dilution is establiehed if, rbaeed on

the totality of eircumstanceBrtr members of

a. reeial..minoriby ihava less opporttrnity

than other nembere to participate in the

politieal process and to elect ropre-

eentativee of their choice.r 42 U.S.C.

$r 97,, a8 amendad. The Conmittee Reporta

eccoirpanying the amendmcnt make plein the



-9

congressional intent to reach election

plans that minimize the voting strength of

minority voters. S. Rep. No. 97-417, 97Lh

Cong . , 2d Sess. at 28 (lgAZ ) ( nereafter
ttSenate Reportrr or trS.Rep.tt) I H. R. Rep.

No . 97 -227 , 97th Cong. , lst Sess. at 17-18

(1981 ) (hereafter "House Report").4

The Senate Report, at pages 27-rA, sets

out a detailed and specific road map for

the application of the amended Section 2.

When called upon to apply the statute,
as amended, to a claim of unlawful dilu-

Appellants assert thab the Iegislative
history of the 1982 amendments is unclear
because there is no conference eommittee
report. J. S. at 8. Howev er , as the House
unanimously adopted 5.1992, which had been
reported out of the Senate Committee on
the Judieiary and adopted by the Senate,
there was no need for a eonference
committee or for a conference committee
report. See J.S. at 9a, n.7. In fact
there was no conflict between the intent
of the House and of the Senate. The
Senate adopted substitute language to
spell out more specifically the standard
which the House meant to codify. S. Rep.
at 27.



- 10

t ion, the federal courts urere directed by

Congress to assess the interaction of the

challenged electoral mechanism with the

relevant factors enumerated in the Senate

Report at 28-29.

It is apparent flrom the analysis of

Seet ion 2 c ontained in the Memorandum

0pinion and from the detailed assessment of

the facts that the District Court under-

stood and properly applied its Congres-

sional charge to the facts oF this case.

The actual standard applied by the

District Court is embodied in its Ultimate

Findings of Fact:

1. Considered in conjunction with the
totality of relevant circumstances found by
the court -- the Iingering effects of
seventy years of official diserimination
against black citizens in matters touching
registration and voting, substantial to
severe racial polarization in voting, the
e ffects o f thirty years of persistent
racial appeals in political eampaignsr a
relatively depressed socio-economic status
resultinq in significant degree from a
eentury of de jure and de facto segrega-
tionr Bod -Ttr-6ontinuTn!--E?Fect of a



- 11

majority vote requirement the creation
o f each o f the multi-member districts
ehallenged in this action results in the
black registered voters of that district
being submerged as a voting minority in the
district and thereby having less oppor-
tunity than do other members of the
electorate to participate in the political
process and to elect representatives of
their choice.

2. Considered in conjunction with the
same cireumstances, the creation of
single-member Senate District No. 2 results
in the b I ac k registered voters in an area
covered by Senate Districts Nos.2 and 6
hav ing their voting strength diluted by
fracturing their concentrations into two
distriets in each of which they are a
voting minority and in conseguence have
less opportunity than do other members of
the electorate to participate in the
pol it ical process and to elect represen-
tatives of their choice. J. S. at 51a-52a.

Appellants assert that "the district

court erred by equating a violation of

Section 2 with the absence of quaranLeed

proportional representation.rr J.S. at 9.

This statement, supported only by

sentence fr agment from the opinion, J. S.

the standardat 9-1Or grossly distorts

actuall y used by the District Court, and



-12

ignores the extensive discussion by the

District Court of the meaning and proper

application of Section ? of the Voting

Rights Act. J. S. at lIa-1 8a. In that

discussion, the Distriet Court explicitl y

of the standardstated its interpretation

to be applied and the factors

considered:

to be

In determining whether, rrbased
on the totality of circumstancesr"
a state's eLectoral mechanism does
SO tt resul ttt in r ac i al v o te
d i I ut ion , the Congress intended
t h at courts should look to the
interaction of the challenged
mechanism with those historical,
social and political factors
generally suggested as probative of
dilution in White v. Reoester and
subsequently@ the
former Fifth Circuit in Zimmer v.
Mc Ke i t hen. 48 5 F .2d 1297 186-eI?.
1gTTl---Ten banc),@
grounds sub !gg. East CarroII
Parish School Board v. MarshalI.

These typically include, per the
Senate Report accompanying the
compromise version enacted as
amended Section 2z



-1'

Itnereafter t,hc Diatrlct Court IlEted the

factore enumerated at pp. 28-29 of the

Senate Report.J J.S. at 12a-1fa.

The Dietrict Court did not ignore

Whi.te v. Reoeater , 412 U. S. 755 (197r) , and

ite progeny r nor did the Diatrict Court

interpret those caaea to require pro-

portlonal repreaentation. See J. S.

14a-15a. Ae the Court explicitly aaid,

"IT]he fact that blacks have not been

elected under a challenged districting plan

in numberB proportionel to their percentage

of the population Idoea not eeteblish that

vote dilution has resulted ].' J. S. at 1 5a.

In BUm, the District Court examined

eech faetor Bpecified by Congraas in the

Senate Report and, without limiting its
aaaaeament to juat one factor, eB appel-

lanta do, aegassed them aa a totality.5 The

The Courts of
the Court below,
amended Section to

other circuits, as dld
have interpreted the

require the trial court



- 14

Distr ict Court clearly

Co n g r e s s i o n al I y m and ated

applied the proper standard

engaged in the

anal ysis and

The District Court's Ultimate
and Subsidiary Findings of Fact
Are Not CLearly Erroneous

The Cqurt Weighed The Particu-
Iar Circumstances Relevant To

fTn-fi nq s-

Since the District Court applied the

proper standard to the facts before it, the

real quest ion raised by appellants is

whether the three judges properly weighed

to examine the factors listed at pages
28-29 of the Senate Report and, consider-
ing the totaliLy of the circumstances,
determine whether the challenged election
method violates Section 2. U. S. V.

B.

1.

Marenqo County Comm. , 731 F .Zffi
1565-1566 ( 11th Cir. 1984); Jones v. City
of Lubbock, 727 F.2d t64, 384-rB5 (5th
ir. 1984); Velasquez v. City of Abilene

Tex. , 725 T.

574 F-Tapp. ,
19Br)(tnree judge court).
ffii+); Ryuicti v. state Bd. of Eleq_!:pJlB,
574 F :



- 15

the voI uminous evidence. I.IhiIe the judges

heard eight days of testimony, examined

hundreds of documents, and made thirty-

three pages of factual findings, the

appellants base their argument, in essence,

on one fact: the electoral success of a

few black candidates in 1982. The ques-

tion thus raised is whether, in assessing

the totality of circumstances, the District

Court's judgment as to the proper weight to

give to this fact is clearly erroneor".'

Rule 5Z(a), F.R.Civ.P., provides that
neither the ultimate nor the subsidiary
findings of faet of the District Court may
be reversed unless they are clearly
erroneous. Rogers v . Lqdqe, 458 U. S. 61r,
6?2-621, 627 (1982) (clearly erroneous
standard applies to finding that an at
large voting system is being maintained
for a discriminatory purpose and to the
underl ying subsidiary findings) ; PulI-
man-Standard v. Swint, 456 U.S. 273,

also Velasquez

727 F.2d 364, 3



- 16

The District Court analyzed each of

the factors suggested by Congress to

determine its bearing on the ability of

black citizens to elect eandidates of their

choice to the General Assembly. 0ne factor

is the extent of black electoral suceess.

With regard to that factor, it is plain

that before this action was commeneed in

1981, a nominal number of blacks had been

elected to the General Assembly. The

District Court discussed the 1982 elections

and found them to be uncharacteristie.

After examining blaek electoral suecesses

and failures, Judge Phillips concluded:

I T ]he success that has been
achieved by black candidates to
date is, standing al,one, too
minimal in total numbers and too
recent in relation to the long
history of complete denial of any
elective opportunities to compel
or even arguably to support an
u1 timate finding that a black
candidate t s race is no longer a
significant adverse factor in the
poI it ical processes of the state



-17

either ganerally or Bpe-
eifically in the areaa of the
challenged distriete.

J.S. at 17a-]8a. Sse aleo, J.S. at 37a

n.27 .

,Thie eonelueion waa considered along

xith findinga on the other faetors 6numer-

ated in the Senete Report. These are

Bumnarized aa followa:

E. There is e current dieparity in

black and white voter regiatration reault-
ing from the direct denial and chilling by

the Stete o f regiatration by black citi-
zena, which extended officially into the

1970rs with the uae of a literacy test and

anti-eingle shot voting laws and numbered

seat rBquiremente. The racial animositiee

and reeietence rith which white citlzena

have responded to attempts by black



- 18

citizena to participate effectively 1n the

political proeaaa ere atill evident today.

J.S. at 22a-26a.

,b. Within each challenged dletrlet

reciall y pol arized voting ie pereietent t

aoyBre, and etetiatlcally aignificant. J.S.

et f8a-f9a, 46a.

North Carollna hee a naJorlty

vote rsguirement whlch exists aa e con-

tlnuing praotlcel lmpedlment to the

opportunity of bleck voting minorities in

the challanged dlstricta. J.S. at 29a-J0a.

d. North Carolina haa a long hietory

of public and privatB racial dlecrimination

in alnoet aII arcea of life. Segregatlon

lare rere not . repealed until the late

1 960 t s and eerly 1 970 I s. PubIic sehools

x,ere not significantly desegregated until

the earl y 1 970 | e. Thus r blacke oYsr l0

yeers oId ettendcd qualitetively inferlor

segregated achoole. Virtually ell neigh-



-19

borhoods remain racially identifiable, and

past diecriminetion in employment continues

to disedav antage blacks. B.l.ack houeeholds

are three times ea likely as white houee-

holds to be below poverty level. The lower

socio-econom ic stetus of blacks results

from the Iong history of discrimination,

gives rise to epecial group interests, and

currently hinders the grouprs ability to

participate effectively in the politieel
process. J. S. at 25a-29a.

e. From the Reconstruction ere to the

present time, appeals to racial prejudice

against bleck citizene heve been used

effectively aB a means of influeneing

voters in North Carolina. As recently aa

198rr political cempaign materiels reveal

an unmistakable intention to exploit white

voters' exieting racial fears and prej-

udicee and to create new ones.

31 e-12a.

J. S. at



-20

fl. The extent of election of blacks

to public offiee at alI leveIs of govern-

ment is minimal, and black candidates

continue to be at a disadvantage. l{ith

regard to the General Assembly in particu-

lar, black candidates have been signifi-

cantl y Iess successful than whites. J. S.

at 33a-54a, 37a-38a.

g. The State gave as its reason for

the multi-member distriets its policy of

leaving counties whole in apportioning the

General AssembIy. Howev er , when the

ehallenged apportionments were enacted, the

Staters pol icy was to divide counties when

necessar y to meet population deviation

requirements or to obtain Section 5

preclearance. Many counties were divided.

The poJ. ic y o f dividing counties to resolve

some problems but not others does not

justify districting which results in raciaL

vote dilution. J.S. at 49a-50a.



-21

The District Court included the extent

to whieh blacks have been elected to offiee
es none circumstancen to be coneidered, 42

U.S.C. $tgZr(b), mede en intensely local
and det ailed appraiaal of aII of the

relevant cireumatancBa, and determined that

the chellenged distriets have a diecrlmi-
natory result.

For thle Court to rdvcree the Diatrict
Court t s ultimate findinga would require

this Court to find (1) tha't the Dietrict
Courtrs asaeBament of prB-1982 electoral
auceeaa was clearly BrroneouB i (2) that the

Dietrict Courtrs asaesament that the 1982

eleetiona urere atypical was clearly erro-

neoua; and (r) thet, in weighing the

totality of the circumateneea, the reletive
weight given by the Court to one poet

litigation election year waB clearly
SrroneouS.



2.

-22

The District Court's Findino

-

rs
Not Clearly Erroneous.

Appellants assert that the electoral

success o f some blacks in 1982 precludes

the Distr ict Court from finding severe

racially polarized voting. This is the

only subsidiary finding appellants chal-
7

lenge.

In finding voting to be racially
polarized, the District Court engaged in a

detailed analysis of election returns from

each o f the challenged districts extending

ov er sev er aI elections, supported by the

testimony of numerous 1ay witnesses and

Although appellants challenge this
finding as an error of law, the finding of
racially polarized voting is one ofl Fact
covered by RuIe 52(a) . _Jqngs V-r_ !ubbock,
727 F.2d at 180. Appeffi
limit this challenge to those areas not
covered by $5. They do not discuss facts
from either House District No. B (Wilson,
Edgecombe, and Nash Counties) or Senate
District No. 2.



-2'

expert testiarony regardlng avery election

for the Generel Aseembly.in.which there hed

been e blaek candidate in the challenged

multi-member diatricts for the three

election yeerB preceding the trial. J.S.

fBa-39a. Baeed on ite exheuetive analyaie

of the evidence, the Dietrict Court found

that raciall y polarized voting treB aevere

and porsiatent.

Appellenta erroneously elaim that the

Dietr ict Court deternined racial polari-

zation by labaling every election in whlch

lese than 501a of the whitea voted for the

bleck eandidate aB racially polarized. J.S.

at 17. Although it is true thet no black

candidate ever managed to get votes from

more than 5Ol of white voters, this is not

the stendard the Distriet Court uged.

Instead, the Dietrict Court examined

the meeaurement of reeially polarized

voting to determine the extent to which



black and white

-24

voters vote di fferentl y

from each other

the candidates.

in relation to the race of

J. S. at 39a, n.29. The

Di st r ic t Co urt I s assessment can be sum-

marized in three findingss

€l. The ev idence shows patterns o f
racial polarization. The Court found:

0n the av erage r 81 .7% of white voters
did not vote for any black candidate
in the primary elections. In the
general elections, white voters almost
always ranked black candidates either
last or next to Iast in the multi-can-
d id ate field exeept in heav i1 y
Democratic areas; in these latter,
white voters consistently ranked black
candidates last among Democrats if not
Iast or next to last among all
candidates. In fact r approximatel y
two-thirds of white voters did not
vote for black candidates in general
elections even after the candidate had
won the Democratic primary and the
only choice was to vote for a Republi-
can or no one. BIack incumbency
al I ev iated the general IeveI of
polarization revealed, but it did not
eliminate it. Some black incumbents
were reelected, but none received a
majority of white votes even when the
election was essentially uncontested.



25

J.S. et 40a.

b. The correlation between the race

o f the voter and the raee of the

candidate voted for wee stetistieally

aigniflcant at the.00001 level in every

election analyzed. Although correlation

coefflclente abovs en abaolute velue of

.5 are relatively rere and thoee above

.9 ers extrenEly rere, all eorreletlon

coefficiente 1n this eaae werB betreen

.7 end .98 wlth moat above .9. J.S. at

58e-19e and n.J0.

c . In all but two elcctiona, the

black cendidate loet emong white voters

--that is the resulte of the election

would have been different if held only

in the whlte community than if held only

in the black connunity. J.S. at f9a-404

and n.31. The District Court ueed the

term ieubstantively significantt in

these circumateneea. Appellanta posited



-26

no alternative definition supported

either b y c ase law or politicaL scienee

literature. J.S. at 4Oa, n.32.

Appellants offered no statistical
analysis which eontradicted the conclu-

sions o f the District Court. They did

not question the accuraey of the data or

assert that the methods of analysis used

by appellees' expert were not sLandard

in the literature. J.S. at lBa n.29. In

fact, appellants conceded that the

polarization of the voting was statis-
t ic aI I y signi ficant for each o f the

elections anal yzed.

Nonetheless, appellants contest the

District Courtrs finding of racially
pol ar i zed v oting citing examples from

onl y one post-litigation election year,

1982. This is particularly inappro-

priate, as the District Court concluded

that 19BZ was rrobviously aberrationalfl



27

and that whether it will be repeated ia

sheer speculation. Among the aberra-

tional fectors wea the pendency of this
Iarsuit and the one tlme help of black

candidatee by white Democrets who wanted

to dafeat single member dlatricte. J.S.

at J7a. This skaptical view of poat-

litigation electoral aueceas is sup-

ported by the legislative hiatory of the

Vot ing Rlghts Act and the caBe law.

Senate Report at 29 , n. 1 1 5; Zimmer v.

HcKelthen, 485 F.2d 1297, 1r07 (5th Cir.
197r) (Sg banc) efffd on other qrou,nde

aub nom Eaet Carrol-l Parleh Scfool Boerd

yo ltlatshall , 424 u.5. 616 (1976)t NAACP

v. Gadeden Co. School Board. 691 F.2d

et 98r.



28

In addition to balng drawn only

from post-litigation elections, the

Bx enplea given by appellants ere

mialeadlng and are taken out of context.

For example:

(a) Appellants point out that in ,.the

1982 Maqklenburg Houaa p.rlmsDyr black

candldate Berry received.rflYa of the

white vote. The District Court noted

thie but stated that it idoes not alter
the eo'ncluaion that there ie eubstantial

racially polarized voting in Mecklenburg

Count y in primaries. There u,ere onl y

aeY en rhite candidatea for eight
poaitione in the primary and one black

candidete had to be elected. Berry, the

incunbent chairman of the Board of

Edueation, renked firet among black

votere but eeventh emong whit6B.r J.5.

at 42a.



-29

The other black cendidate, Richard-

son, wea renked laet by rhite votere in

the primary but seeond, after Berry, by

blaeke. In the general election,
Richardson wea the only Democret who

loet.

Similarly, in the 1982 l,lecklenburg

County Senate rece, the black candidete

who u,aa auecessful in the primary y,ea

the only Democrat who lost in the

generel election, ranking first among

blaek votera but gixth out of aeven by

rhite votere for four BeetB.

b. Appellenta point out that black

eandidat6 Spaulding reeeived votea from

47/ of whlte votars in the 1982 general

slection in Durhem County. They ncglect

to point out there rraa no Republican
':,

opposition in that election, and thet e

majority of white votere therefore



-r0

failed to vote for the black incumbent

ev en when they had no other choiee.

J.S. at 44a.

Appellants also failed to point out

that in the Durham County primary for
'1982 there x,ere only two white eandl-

datee for three seatB so et least one

blaek had to win. As the District Court

noted, nEven 1n this situation, 659^ of

white voters did not vote for. the black

incumbent, the clear choice of the bleek

voterB.n J. S. at 44e.

(c) Appellants point out that in

Forsyth County two black candidetes in

1982 were successful but fail to note,

as the Dietrict Court did, that white

voters ranked the two blaek eandidetes

seventh and eighth out of eight candi-

dates for five seats in the general

election while blaek voters ranked them

first and seeond. J.S. at 45a.



,1

(d) As another example, whlle noting

that black elected incumbante have been

re-alected, appallants fail to note that

white votere almoat alwaya continue to

renk them laet and that black appointed

incunbants hava uniformly been defeated.

The three Judgee who heard the evi-
dence conaiderad each of the facte whieh

appellante point out r',,.together rith the

surrounding eircumetancoa, and coh-

eluded that theee piceae do not alter

the eonclusion of severe and pereiatent

raei-aIly polarized votlng.

Appellanta aleo aaaart that rs-
cially polarized voting 1a probatlve

of vote dllutlon only if it alxeya

cauasa blacks to lose. In fact, 1n 21

of the ,2 election conteata analyzed ln

which the black eandidate recelved

aubetential black support, the black



-12

candidate did lose becauae of recial

polarization in voting. That iar he

lost 6yen though he waa tha top choice

of black voters becauae of the pauclty

of support among xhite voters.

. Appellants aes.cr! that white* muet

uni fornl y rin for rscially polarized

vot lng to be probatlve. They aupport

this argument by citing RogsIa v. Lodget

.1!l!lg, I caae decidsd under the purpoas

standard of the Fourteenth Amendment of

the United Statee Constitution.

Appellees do not believa that Rooers Y.

Lodqe atanda for the propoBition boldly

asaarted by appellanta, but the Court

nead not conEider, in the context of

thia eese, whether the complete absence

of black electoral auecaaa is neeessary

to raise an inference that en at large

system ie being meintained for e

diaeriminatory purpose.



-,,

The instant ceae wea decided under

the Voting Rights Act, and the statutory

language o f Seetion 2 apecifiea that a

violation exista if black citizena have

nlesB opportunityi to elect represanta-

tives of thelr choice; it ie not llmited

to situat lone in whlch black candidatae

have absolutely no chence of being

elected. 42 U.S.c. $ tgZf(b). Raeially

pol ar l zed voting can give riee to tirf e

unequal opportunity, 6ven if it doea not

causc blaek candldates to loee ivery

aingle election.

Appetlants'r argument ie, in 88-

aence, thet any bleek electoral auc-

ceaa n€ceaearily dcfeats a Section 2

cleimr BD argunent rhich defiea the

intent of Congreaa. .,999 S. Rep. at 29,

n.115, and discussion at p. 35, infra.



-14

Ae the Court noted in !,lai or y .

574 F.supp. ,25, ,r9 (E.D. La.

( three J udge court ) :

Treen

1 98r)

Nor does the fect that severel
blacks have gained elective
office in 0rleane Parish detract
fr om pI ainti ffe I ehowing o f an
overell pattern of polariza-
tion... RaeiaI bloc voting, in
the context of an eleetoral
structure wherein the number of
votes needed for election exceede
the nunber of bleck voters, aub-
etantially dimi.niehee the
opportunity for bleck votere to
elact the cendidate of their
choice.

The District Court coneidered ell

o f the ev idenee, including the facts to

which the appellante allude, and determined

thet racially polarizad voting 1e aevere

and persistent in the dietricte in quea-

tlon. This finding ia not clearly erro-

neouB.



1.

-15

The District Courtra Ultimate
r 1ndlno or D,.acrl.mlnaEorY

neous'

The task of the three District Court

j udgei rtea tq sxeiliRe historic 8nd curren't

racial and politieal realities in North

Carolina, to determine if the challenged

legieletive dietricts operate to diny'blaek

citizsna an equal opportunlty to elect

repr68antativea to the General Aeeembly.

The Judges below engaged in an inteneely

local eppraisal of these factors and

eppellants aek thls Court to rule that

their determinetion waa cleerly erroneouB.

Appellanta do not challenge the lower

courtre findinge on aix of Beven Seetion 2

faetors, and, aB dieeueaed in part IB(2),

EJ3ISI the scventh subeidiary finding, that

voting in North Carolina is recially
polarized, ie not clearly erronaous. Thus,

the queBtion is whether the Diatrict Court



-16

properly esseBsed the totality of eircum-

etances. In the Statement of the Cage

eppBllante recite random black electoral

auceaaaes and then imply, without eaying,

that undar the eireunstencoa, a finding of

diecriminatory rasult is erroneoua beceusa

it is tentanount to a requirenent of

proportional repraBentation.

As rraa diecuased in part IB( 1 ) , .9.!!ALgr

the Diatr ict Court did not ignore the

election of blacks in ite weighing of the

facte. Rather, after exanlning the extent

of minority election, the District Court

found, in addition to mlnlmal election of

blacke to the Generel Asaambly before thie
litigetion waa initiated, that in the six

nrulti-member dietricte in guestion, black

candidates rho ron Denocratic primarles

betreen 197O and 1982 were three times aa



,7

llkely to lose in general elections aa were

their white Democratlc counterparta. J. S.

at JJa-f4e.

In addition, the Dlatrict Court found

that blacks hold only 9Z of city council

seate (many from maJority black eleetion

dietricts ) ; 7 .t% of the county commiesion

seats; 4Z of sheriffrs officssi and 1Z of

the officee of the Clerk of Superior Court.

No black hea been elected to etateride

office except three Judges who ran unop-

posBd ae appointed incumbentB. No black

hae been elected to the Congreas of the

United Statee aa a repreB6ntative of thie
Ietate. J.S. at 55a.

, 0n e county by county basis appellants

alao paint a lopaided picture. In Forsyth

County eppBllanta apecify isolated in-

atances o f elsetorel auceeaa but lgnore

North Carolina
ulation.

is 22.42 black in pop-



,8

elBctoral failures sueh aa 3 ( 1 ) the defeat

of eppointed black incunbenta which

reaulted in no blacka belng elected to the

House o f Repreaentativcs fron Foreyth

County in 1978 and 1980, years in which all
white Denocrate wsre eucceeaful; (?) the

defeat 1n 1980 of the black who had been

alectsd to the County Commiseion in 1976

which reeulted in e return to an all white

County Comnlsaion; and (r) the defeat in

1978 and 1 980 of the bleck who had been

slected to the Board of Education ln 1976

returning the Board of Edueation to lte
preYioua all white status.

'In sach of thees lnetancaa the evi-
dence shored that black Denocrata rere

defeatad when rhite Republicans did well,
but rhite Demoerata ron conEietently, Bven

in good Republiean yEara.



t9

In addition, appellanta do not mention

thet Houae District No.8r which ie r9Z

black in population and has four repre-

sentatives, has nevcr elected a bleek

rBpreBentative, J. S. at 76a, or that

l,lecklenburg County, which, with eight House

seate and four Senate seats, is the'largest

district in the Generel Aeeembly and which

is over 25r. black in population, hqs this

eehtury elcctqd only one black senator

(from 1975-1979) and one black repreaen-

tetive ( in 1982, after this laweuit r.ea

filed). J.s. et 14a.

In l.lecklenburg .,County, e8 1n Forsyth

County, black DemocretE who urare eucceeaful

in Democratic primeries, in the House in

1980 and 1982 and in the Senate in 1982,

u,era the only Democrate to loee to white

Rcpublicens. No rhite Democret lost to a

9
Republican i in those elections.

Thus, this caee ie in no wey eimiler



Rather

-40

than reguiring guaranteed

election r ofld rather than simplistically

considering erratie examples of electoral

suecess, the District Court followed the

statutory mandate by considering black

electoral success and failure as one

factor in the totality of circumstances

leadinq to its conclusion o f discriminatory

resurt. 42 U.S.c. $ 1971(b).

0ther courts have not required the

complete absence of black efectoral success

in order to find a violation of Section 2.

United States v. Marengo County Commission,

711 F .2d at '1572; Maior v. Treen , 574

F. Supp. at 351-352; Rvbicki v. State Bd. of

Electioqr.s, 574 F.Supp. at 1151 and n.5.

This interpretation of the amended SZ is

consistent with pre-amendment case law

to Wh itcomb v. Chavis, 401 U. S. 124,
150-mblack defeat was
caused by Democratie Party defeat r not by
race.



which held

success does

dilution. See

at 766i NAACP

-41

that some black electoral

not preclude a finding of

White v. Regestgr, 412 U.S.

v. Gadsden Co. School Boardt

691 F.2d at

-@.,
1977).

983; (ir lsey v ._ Board o f

554 F .2d 1t9 , 1 4t ( :tn cir .

The conclusion of the District Court t

that the election of some minority can-

d id at es does not negate a finding of

d i scr im i n at or y result , is consistent with

the clear intent of Congress as stated in

the Senate Report: "IT]he election of a few

minority candidates does not fnecessarily

forecLose the possibility of dilution of

the black voter , in violation of this

section." S. Rep. at n.115.

The determination of whether an

electoral system has an illegal discrimi-

natory result requires findings of fact

which blend I'history and an intensely Ioeal



-42

appraiBal of the design and impact of the

... muItl-member district in the light of

past and present reality, political and

otherHiBe.' l{hite v. Rqgeater , 412 U. S.

et 769-77O. The Dietrict Court in this
action engaged in just thie rrintensely

locel appraieal.' The Dletrict Courtrs

findlngs are ao metieulously supported by

the rscord es to warrant Bummary afflrnance

by this Court.

II. THE DISTRICT
SIDERED ALL

COURT PROPERLY CON-
THE STATEIS EVIDENCE

Appellanta diepute the weight the

Dietrlct Court gave to evidence thet a

handful of black votere and a few black and

white politiclans disagreed'with the single

member district remedies propoeed by

plaintiffs.



45

In their Juriadictional Statement

appellante allude to the teEtimony of one

black lagislator and aome white politicians

who supported retention of the multi-menber

redistricting plans under which they were

elected end to the testinony of three blaek

ritneasea who testified in oppoBition to

single member districts.

Appellante characterize thie evidonce

as subetantial, J.S. at 21, and urge that

the Court below erroneouely dieregarded it.
In fact the Dietrict Court carefully
evaluated the teetimony of all the Statere

witneaBea ea a factor bearing upon the

clain of racial vote; dilution. J.S. a.t

47a-48a. The Court foun'd that the black

witneasea who testified for the State rere

a idistinct minority' whoee views . 
rrr.ent

almost exclueively to the desirability of

the ramedy sought by plaintiffs, and not to



-44

the present exietence of e condition of

vote dilution.' J!.. This findlng ie amply

eupportad by the reeord.

The eppallanta srroneouEly eontend that

ln ev al uating e claim of racial vote

dilution, tha District Court ehould have

found that evidenee that the plaintlffsl

proposed remedy wea not unanimoualy

endorsed by every member of the bleck or

white community outxeighed e1l other

evidonce of the obJective factors identl-

fied aa relevant by Congress. This is

f undament all y lnccinEistent rith the

Congreasional mandate in amending Section 2

to eliminete reciel vote dilut.ron. It does

not raiee e subetential queetlon. Compqre

Srann v. Charlotle-Hecklenburq Boerd 'qf
Educatlo,fr,,r ,06 F. Supp. 1291, 129t '(I.0.

i

N,C. 1969) arildr'4A2 U.S.. I (1971). 9f,.



45

Coooef Y. Aaron. ,59 u.s. 1, 16 (1959);

l,lonroe v. Bd. of Cpqlliqs_lo!e-rq , 591 U. S.

45O, 459 ( 1 968) .

III. PRECLEARANCE UNDER SECTION
5 OF THE VOTING RIGHTS
ACT DOES NOT BAR APPELLEES 'CLAI},I UNDER SECTION 2

Appellants rely on the decision by the

Aesistant Attorney Genaral of the Unlted

States to preclear the House and Sanate

reapportionments purauant to Section 5 of

the Vot ing Rights Act to contend that

eppellaes (plaintiffs below) were estopped

or preeluded from pursuing their Section 2

cl eina in those diatrlcta composed of



-46
10eountiea covered by Section 5. Thia

argunent ie specioue, and wea reJected by

the Dietrlct Court for three reesons 3

( 1 ) The statuta expressly conten-

platea e de novo etetutory action by

private plaintiffe i (2) tne substan-

t iv e atendard for a violation of

Section 5 is not coterninoua with the

subatantive standard under Section 2i

and (r) Section 5 preclearancB is en

g €erte non-edverearial process thst
hae no collateral eatoppel effect.

Sect ion 5 of the Yoting Rights Act

expreasl y contemplatee a !g novo action

such ea in the inatant ceaes

Neither an afflrmative indication
by the 'Attorney Genbral that no
obJection will be made nor the
Attornay General. I s failure to
obJ ect , nor a daclaratory .

-

Thia argument ie llmited to House District
,8 and Senate Dietrict *2, the only
diatricta eompoaed of counties covered by
Section 5.

10



-47

j udgment entered under this
see tion shall bar a subsequent
act ion to enjoin enforcement of
such qualification, prerequisite,
standard, practice, or procedure.
42 U.S.C. $ 1977c.

The statute does not limit such actions to

purely constitutional claims or contain any

qualiFications barring Section 2 action". "
Private plaintiffs are entitled to bring a

subsequent action whether preclearance

results from I'a declaratory judgment

entered under this sectiontt or from ttan

affirmative indication by the Attorney

General that no objection will be made."

Id . Moreov er, the language in Section 5

11 Appellants were so informed by the
Assistant Attorney General in his April ,0,
1982 preclearance Ietter to the State:trFinallyrtt he wrote, ttwe feel a respon-
sibility to point out that Section 5 of the
Voting Rights Act expressly provides that
the failure of the Attorney General to
object does not bar any subsequent judicial
action to enjoin the enforcement of such
changes. tl



-48

should be viewed in the light of the recent

amandments to Seetion 2, in rhich Congreas

made cl ear that private citizena have e

statutory eeuse of actlon to enforce their

rights 1n both Section 5 covered and

uneovered Jurisdictions. .gg Houee Report

et 12i Senate Report at 4?. Pleintiffa are

therefore not barred from mounting a de

noyo statutor y or conetitutional attack

upon a reapportionment plan notwithstanding

proclearence. .b]g v. @, 9!lglg.r at

,27 r.11 citing @ v. Eaat

Baton Rouqe Parieh Scho-ol, E!., 594 F.2d 56,

59 n.9 (5th Cir. 1977).

Secondly, the failure of the Attorney

General to objact under Section 5 cannot be

probative of whethar there is a Section 2

violetion unless tha etandards under theae

two sections of the Voting Righte Act ere

the Beme. There ia nothing in the record

rhich demonatretae whet standard the



-49

Attornay General used in precleaiing House

Distriet #8 or Senate District t2. It is
particularly ambiguoua since theee two

dlatricts w6re precleered in April 1982,

two montha before the 19A2 exteneion and

enactment of amendments to Section 2. It

is mani fest , however, that the Attorney

General did not uae the standard of a

atatute yet to be enected.

In eddition, the legielative history

o f the em 6ndmant of .Section 2 auggeste

that the uBe of the word Tr.eeultan 1n the

statutle dietinguishea the standard for
proving e violation under the Section 2

tot al it y o f c ircumstencea teet from the

Section 5 regresaion atandard for deter-

mining discriminatory purpose or effect.

Senate Report at 68 and n.224; 2 Voting

Rights Act: Haaringa on S.5J, S.1761,

5.1975, 5.1992 and H.R. 5112 Before the

Subcomm. on the Conatitution of the Senete



- 50

Comm. on the Judiciary, 97th Cong., 2d

Sess. B0 (lgAZ) ( remar ks o f Sen . Dole ) , 128

Cong. Rec. HrB41 (daily ed. June 23, 19BZ)

( remar ks o f Rep . Sensenbrenner , with which

Rep. Edwards concurs).

In short, nothing in

itsel f, in the Iegislative

recent amendment of Section

I aw o f coI I ateral estoppel r

the statute

history of the

2, in the case
12 or in the

12 There are four criteria that must be
established before the doctrine of col-
lateral estoppel can be invoked. 1 ) The
issue sought to be precluded must be the
same as that involved in the prior liti-
g at ion , 2) the issue must have been
actually litigated, 3) it must have been
determined by a valid and final judgment,
and 4) the determination must have been
essential to the judgment. See generally,
Wright, Miller and Cooper, Federal Practice
and Procedure: Jurisdiffi
seqi Allen v. McCurryr 449 U. S. 90 ( 1 980) .

4'-'
The party asserting estoppel has the burden
of proving alI elements of the doctrine,
especially the existence of a full and fair
opportunity to litigate the issue. Id. at
9'5'. Matter of MerriII , 594 F.2d 1064;1066
( 5th Cir. 1979) ; Kremer v. Chemical
Construction Cor por at i@

on of issues is
warranted if there is reason to doubt the
quality extensiveness, or fairness of pro-



treatment of

-51

other administrative agency

determinations where there is a statutory
1tright to trial de 49!9r supports appellant-

cedures followed in prior Iitigation.'r Even
if all criteria are satisfied, relitigation
may be appropriate because of the potential
import of the first determination on the
public interest or the interest of persons
not parties to the original action. Porter
and Dietsch, Inc. vo f.T.C., 605 F.2@.
f00'(7th Cir. 1979) cert. denied' 445 U.S.
950 (1e7e) .

1' This Court has held that a Title VII
plaintiff's statutory right to a trial de
novo is not foreclosed bylubmission ofl tfi?
il6Tm to final arbitration, Alexander v.
Gardner-Denver Comp any , 41 5 U. ffi74) ,

inant is a party t;
the administrative proceeding. SimiIarIy,
a federal employee whose employment
discrimination claims were rejected by the
Veterans Administration and the CiviI
Serv ice Commission Board of Appeals and
Review was nevertheles entitled to a trial
@ jgyg. . Chandler v. Roudebush , 425 U. S.
840 (1976). Moreover, although admissible
as evidence at the de novo proeeeding, the
agency decision was entitled only to the
weight deemed appropriate by the court.
Alexander v. Gardner-Denver, 4'15 U.S. at



SI elaim

-52

that Section 5 preclearance

precludes subsequent Iitigation of a

violation under section 2.

The nature o f the administrative

preclearance process itself exposes the

vacuity of appellants' preclusion argu-

ment . Appel I ants concede thaL the Section

5 rev iew was conducted ex parte as a

nonadversar y proceeding. 
lorn""" was no

formal hearing consistent with fundamental

14 Jurisdictional Statement at 162 " In
fact, these districts were designed by
counsel and Iegislative drafters in daily
contact with t.he Assistant Attorney General
and members of the staff of the CiviI
Rights Division.fr Indeed, other than this
admission, the record is devoid of the
reasoning or facts behind the Assistant
Attorney General I s ultimate preclearance
decision. In his preclearance letters r the
Assistant Attorney General never even
ment ions House District 8 and there is
absolutely nothing in the record to support
appellants' claim that the Attorney General
determined "that it was in the best
interests of the black voters not to
diminish black influence in (Senate)
District 5 in order torpack'(Senate)
District 2.n J. S. at 16-17.



notions of

-53

15due process, and , unI ike

appellants, who were in trdaily contact with

the Assistant Attorney Generalrx J.S. at

1 6 , appel I ees could not be and were not

parties to the preclearance determination.

Nor were appellees entitled to appeal or

in any form seek judicial review of the

preclearance decision. Morris v. Gres-

€g!19, 432 u. s. 4e1 (1e77 ) .

The Justice Department Section 5
regulations provide that a covered juris-
diction must submit voting changes for
preelearance review, but the reviewing
official is not required to publish an
opinion nor set forth reasons for the
preclearance decision. Se e 28 CFR $51 .4'l .
The procedure is so in formal that a
determ ination may be made without the
Justice Department taking any definitive
action at all. If a state submits a plan
and the Department takes no action within
sixty days, the plan is presumptively
approved. Id. A con ference may be
requested by the submitting jurlsdiction
on reconsideration of an objection, 2B CFR
S51.46, but none is required initially.
Part ies opposing preelearance have no
formal role in the deliberations.

15



-54

l,lort'is Y. Greesette ' aroae in the

contsxt of a claim that private plainttffa

had a right to judicial revlew of the

adminietrative preelearance proeess. In

holding that private parties had no such

rlght to inquire into the reaeoning bahind

the Attorney Generalrs decieion, to revisw

the procesB by whieh he conaidered the

change or to appeal directly his determi-

nat ion , this Court u,ea persuaded that

Congreaa had proyided, through the etatu-

tory grant of a trial !g gy*, for black

votere who disagree wlth the preclearance

decision and who heve no other meena of
protecting their interests. ilorrle' v.

Gressette. 4rZ U.S. at 506-07. Indeed,

this is dlrectly stated in the only other

c aaa , Donne I I v. United Slg!-g.g , 682 F .2d

240r 247 (D.C. Cir.1982), which appellents

eite to Bupport their claim of pre-emptl.on.

Ne ither Donnell nor Morrie v . Grea-



-55

se!_!9 supportB the eppellentsr preclusion

arguments. Indeed, they affirmatlvely

recognize that the Attorney General nay

hav e intereets other than the intereate of

minority voters and, more importantly, that

the voters I interests are explicitly
proteeted by the statutory right to a trial

Sgry.
Thus, the Dietrict Court properly

found the Attorney Generalts preclearance

determination trhas no issue preclueive

( col I ater al eatoppel ) effect in this

action.n (Citation omitted) J.S. et 54a.

The decieion belor should be affirmed

summarily.



56

CONCLUSION

Because appellants did not raiee any

substantial queetion which requiree further
argument, the Court ehould affirm the

judgment of the Dietrict Court or dismiss

the appeal.
Respect fully submitted

JULIUS CHAMBERS
*LANI GUINIER

NAACP LegaI Defense and
Educational Fund, Inc.
99 Hudson Street
1 6th Floor
New York, New York 1001,
(ztz)z'tg-1e00

LESLIE J. l{INNER
Ferguson, l{att I Wallae ,

and Adkins, P.A.
951 South Independence

Boulevard
Charlotte, North Cerolina

28202
(704) tts-8461

Attorneys for Appelleee

*Counsel of Reeord