Correspondence from Winner to Leonard; Stipulation of Extension of Time

    No. 83-1968 

1Jn tqr ~uprrmr <nnurt nf tqr lltnitrb ~tntra 
OCTOBER TERM, 1985 

-
LACY H. THORNBURG, ET AL., APPELLANTS 

v. 

RALPH GINGLES, ET AL. 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE SUPPORTING APPELLANTS, 

CHARLES FRIED 
Acting Solicitor General 

WM. BRADFORD REYNOLDS 
Assistant Attorney General 

CHARLES J. COOPER 
Deputy Assistant Attorney General 

PAUL J. LARKIN, JR. 
Assistant to the Solicitor General 

Department of Justice 
Washington, D.C. 20530 
(202) 633-2217 





QUESTIONS PRESENTED 

1. Whether the district court correctly construed 
amended Section 2 of the Voting Rights Act of 1965, 
42 U.S.C. 1973, as invalidating certain multi-member 
legislative districts in which minority candidates had a 
proven opportunity to participate in the electoral process, 
on the ground that there was no guarantee that minori­
ties would enjoy the continued electoral success guaran­
teed by "safe" districts. 

2. Whether racial bloc voting exists as a matter of 
law whenever less than 50 ro of the white voters cast 
ballots for a minority candidate. 

(I) 





TABLE OF CONTENTS 
Page 

Interest of the United States ----- ----- -- --------- --- ------------------ 1 

Statement --------------------------- -- ------------------------------------·------------ 1 

Introduction and summary of argument --- ----- ----------------- - 6 

Argument: 

The dis:orict court erroneously held that the re­
districting plan at issue violates amended Section 
2 of the Voting Rights Act of 1965 -------------------------- 7 

A. Amended Section 2 guarantees every citizen 
the right to an equal opportunity to partici-
pate in the political process ----------------------------- 7 

B. The district court misapplied the factorrs. ap­
propriate to an analysis of appellees' claim of 
unlawful vote dilution ---------------- ------------------------- 19 

Conclusion ------------------------------ --------------------------- ----------- -------- 34 

TABLE OF AUTHORITIES 
Gases: 

Beer v. United States, 425 U.S. 130 ·---------------------- 17, 31 
Black Voters v. McDonough, 565 F.2d 1 _____ 14, 24, 28, 33 
Bose Corp. v. Cons'umers Union of United States, 

Inc., No. 82.-12:46 (Apr. 30, 1984) ---- ------------------- 18, 19 
lJradas v. Rapides Parish Police Jury, 508 F.2d 

1109 -----------------------------------------------------------------------19, 26, 33 
Brooks v. Allain, No. GC82-80-WK-O (N.D. Miss. 

Apr. 16, 1984), aff'd, No. 83-1865 (Nov. 13, 
1984) ____________ ._ _______ ____ ______ ___ ___ ___ ___________________ __ .____________ 20 

Buskey v. Oliver, 565 F. Supp. 1473 -------------------------- 17 
City Council v. Ketchum, cert. denied, No. 84-627 

(June 3, 1985) -------------------------------------------------------- 21 
City of Lockhart v. United States, 460 U.S.. 125____ 17 
City of Mobile v. Bolden, 446 U$. 55 _____ ________________ passim 
City of Rome v. United States, 446 U.S. 156 ________ ____ 3 
David v. Garrison, 553 F.2d 923 ·---------------- ----------19, 26, 28 

(III) 



IV 
Cases........-Gontinued: Page 

Dove v. Moore, 539 F.2:d 1152 ________________________ 14, 18, 28,31 

Dunstorn v. Scott, 336 F. Supp. 206 -------------------------- 26 
Grand Rapids School Dist. v. Ball, No. 83-990 

(July 1, 1985) ----------------------------------------------------- --- 19 
Grove City College v. Bell, No. 82-792 (Feb. 28, 

1984) -----·----------------------------------------------------------------·---- 15 
Harper & Row, Publishers, Inc. v. Nation Enter-

prises, No. 83-1632 (May 20, 1985) ----- --------------- 18 
Hendrix v. Joseph, 559 F.2d 1265 _____ ____ _____ ___ 14, 19, 26, 28 
Jones v. City of Lubbock, 727 F.2d 364, opinion on 

rehearing, 730 F.2d 233 ----------------·----------- -----------19, 29, 30 
Ketchum v. Byrne, 740 F.2d 1398, cert. denied, No. 

84-627 (June 3, 1985) ---- ---------------------------------------- 17, 21 
Lee County Branch of NAACP v. City of Opelika, 

748 F.2d 1473 ------- -------------- --- -- ------ --------------------- -- -- 29, 30 
McCarty v. Henderson, 749 F.2d 1134 -------------- ---- -- -- 26 
McCleskey v. Zant, 580 F. Supp. 338, aff'd, 753 F.2d 

877 ------------------------------------------------------- --------------------- 30 
McGill v. Gadsden County Comm'n, 535 F.2:d 277__ 28 
McMillan v. Escambia County, 748 F.2d 1037 ---------- 24, 29 
Metropolitan Edisorn Co. v. PANE, 4.60 U.S,. 766____ 18 
North Haven Bd. of Educ. v. Bell, 456 U.S,. 512____ 15 
Patton v. Yount, No. 83-95 (June 2:6, 1984) __ _____ __ _ 18 
Pullman-Standard v. Swint, 456 U.S. 273 ·-------------- 34 
Rogers v. Lodge., 458 U.S. 613 ______ ________ __ ____ ____ __ _____ 14, 27, 31 
Seamon v. Upham, No. P-81-49-CA (E.D. Tex. Jan. 

30, 1984), aff'd sub nom. Strake v. Seamon, No. 
83-1823 (Oct. 1, 1984) _______ __ ___ ___ _________________________ 18, 20, 30 

Strickland v. Washington, No. 82-1554 (May 14, 
1984) ----- -------------------------- -------------- -- -------------------------- 18 

Taylor v. McKeithen, 499 F.2d 893 ------------------------ 31 
Terrazas v. Clements, 581 F. Supp. 1329 ----------- ------- 29-30 
Turner v. McKeithen, 490 F.2d 191______ __ __ ______ __ _______ 31 
United Jewish Orgs. v. Carey, 430 U.S. 144 _____ _____ 28, 31 
United States v. Board of Supervisors, 571 F.2d 

951 ------ ------- --- ----------------- ------------- -------------------- ----------- 21 
United States v. Marengo County Comm'n, 731 

F.2d 1546 ------------ --- ----------- ------ -------------- ----------- -- -- ----- 29 
Upham v. Seamon, 456 U.S. 37 ------- -- ----- ---------- -------- -- 21 
Velasquez v. City of Abilene, 725 F.2d 1017 ____________ 19 
Wainwright v. Witt, No. 83-1427 (Jan. 21, 1985)__ 18 



v 
Cases~Continued: Page 

Wallace v. House, 515 F.2d 619, vacated and re­
manded, 425 U.S. 947 -------- ---- -- ------ -------------------------- 24, 33 

Walters v. Natiornal Ass'rn of Radiation Survivors, 
No. 84-571 (June 28, 1985) ----- ------------------------- ----- 18-19 

Whitcomb v. Chavis, 403 U.S. 124 ___________________________ passim 
White v. Regester, 412 U.S. 755 ................ 9, 10, 12, 14, 20, 

25,29,31,33 
Wyche v. Madison Parish Police Jury, 635 F '.2dt 

1151 ----------- --------------------------------- --------- ---------------------- 3 
Zimmer v. McKeithen, 485 F.2d 1297, aff'd sub 

nom. East Carroll Parish School Bd. v. Mar-
shall, 424 U.S. 636 ---- ------------------ ----------------14. 24, 26, 33 

Constitution, statute and rule: 

U.S. Const. Amend. I (Establishment Clause)...... .. 19 
Voting Rights. Act of 1965, 42 U.S:.c. 1971 et seq.: 

§ 2, 42:U.S.G. (1976 ed.) 1973-------- --- ---- ----- -- ------- 2 
§ 2, 42 U.S.G. 1973 ------------- ----------------------- ------- ----Passim 
§ 2 (b), 42: U.S.G. 1973 (b) ------------ -- -- -------------- -- --- 27 
§ 5, 42 U.S.C. (1976 ed.) 1973c _____ _____ ____ __ ______ ____ 2 

§ 5, 42 U.S. G. 1973c ------- ·--- ----------------------------------- 17 
Fed. R. Giv. P. 52 (a) --- ----- ------------------ -- --------------------- 17, 19 

MiscellaneoiUs : 

Boyd & Markman, The 1982 Amendments to the 
Voting Rights Act: A Legislative History, 40 
Wash. & Lee L. Rev. 1347 (1983) ___ ____________________ 9, 10 

127 Gong. Rec.: 
p. S15372 (daily ed. Dec. 15, 1981) __________________ __ 9 
p. S15694 (daily ed. Dec. 16, 1981) ____________________ 9 

128 Gong. Rec. : 
pp. H3840-H3841 (daily ed. June 23, 1982) __ ____ 13 
p. H3841 (daily ed. June 23, 1982) ________________ 13, 14,17 
p. H3842 (daily ed. June 23, 1982) _____ ___ ___ _________ 13 
p. H3844 (daily ed. June 23, 1982) ____________________ 13 
p. H3846 (daily ed. June 23, 1982) ____________________ 12, 13 
p. S6500 (daily ed. June 9, 1982) ___ __ ___ ______________ 16 

p. S6557 (daily ed. June 9, 1982) -------- -------------- 16 
p. S6560 (daily ed. June 9, 1982) -------- -------------- 16 



VI 

Miscellanoous.--Contin ued : Page 

p. S6647 (daily ed. June 10, 1982:) ---------------------- 13, 16 
p. S6648 (daily ed. June 17, 1982) ____ __ __ ___ __ __ _____ 18 
p. S6655 (daily ed. June 10, 1982) ------ -------------- -- 16 
p. S6717 (daily ed. June 14, 1982) --------------------- - 16 
pp. S6717 -S6718 (daily ed. June 17, 1982) ______ 16 
p. S.6779 (daily ed. June 15, 1982) ______ ____________ __ _ 16 
p. S6920 (daily ed. June 17, 1982) ------- ------------- 13 
p. S6930 daily ed. June 17, 1982) ____ __ ____ _____ ___ ____ 17 
p. S6941 (daily ed. June 17, 1982) -- ------ ----- ------- 14 
p. S6961 (daily ed. June 17, 1982) __ ___ ________ ____ 13, 14, 15 
p. S.6962 (dailyed. June 17, 1982) ---------- ----- ------- 15, 16 
p. S:6964 (daily ed. June 17, 1982) ------ ---------------- 16, 26 
p. S7095 (daily ed. June 18, 1982) _____ _______________ 17 
p. S7110 (daily ed. June 18, 1982) _____________________ 16 
p. S.7118 (daily ed. June 18, 1982) --- ----------- -------- 16 
p. S7119 (daily ed. June 18, 1982) ___ ____________ __ ___ 16 
p. S7120 (daily ed. June 18, 1982) __ ___ ____________ ___ 16 
p. S7138 (daily ed. June 18, 1982) ___________ ____ _____ 16 
p. S7139 (daily ed. June 18, 1982) ----·------- --- ----- 12 

E xtension of the Voting Rights Act: Hearings 
B efore the Subcomm. on Civil and Constitu­
tional Rights of the House Comm. on the Judi-
ciary, 97th Cong., 1st Sess. Pt. 1 (1981) __ ___ ____ ____ _ 8 

H.R. 3112, 97th Cong., 1st Sess. (1981) _________________ __ __ 8, 9 
H.R. 3198, 97th Cong., 1st Sess .. (1981) --------------- ------ 8 
H.R. Rep. 97-227, 97th Cong., 1st Sess. (1981) ________ 9, 13, 

14,33 
S. 1975, 97th Cong., 1st S·ess. (1981) ------------------------ - 9 
S. 1992, 97th Cong., 1st Sess. (1981) -- -----------··--- ------ - 9 
S. 3112, 97th Cong., 1st Sess. (1981) _____________________ ___ 9 
S. Rep. 97-417, 97th Cong., 2d Sess. (1982) ______ _______ __ passim 
Voting R ights Act: H earings on S. 53, et al. Be-

fore the Subcomm. on the Constituti_on of the 
S enate Comm. on the Judiciary, 97th Gong. , 2:d 
Sess. (1982) : 

Vol. 1 ...... -------· ---- ------------------------------------- ------- -- --- ---Passim 
Vol. 2 .................. ----------------·----- -- -- ---- --- ---------------12, 17, 20 

Voting Rights Act: Report of the Subcomm. on the 
Constitution of the Senate Judiciary Comm., 97th 
Cong., 2d Sess. (1982) -- -- ---- --------··----------·----- -- ------ -- 10, 13 

18 Weekly Comp. Pres. Doc. 846 (June 29·, 1982) __ 13 



lftt tlrr ~upr.rmr Qlnurt nf tl].r lltuit.r~ ~bttrn 
OCTOBER TERM, 1985 

No. 83-1968 

LACY H. THORNBURG, ET AL., APPELLANTS 

v. 

RALPH GINGLES, ET AL. 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE SUPPORTING APPELLANTS 

INTEREST OF THE UNITED STATES 

On October 1, 1984, the Court entered an order invit­
ing the Solicitor General to express the views of the 
United States in this case. We responded in a brief 
urging summary affirmance on two questions and ple­
nary review on two others, and the Court noted probable 
jurisdiction on the latter two questions on April 29, 
1985. 

This case presents several questions concerning the 
proper construction of the 1982 amendment to Section 2 
of the Voting Rights Act of 1965, 42 U.S.C. 1973. The 
United States has the primary responsibility for enforc­
ing the Voting Rights Act and thus has a substantial 
interest in ensuring that the Act is construed in a man­
ner that advances, rather than impedes, its objectives. 

STATEMENT 
1. In July 1981, as a result of the 1980 census, North 

Carolina enacted redistricting plans for the state's House 
of Representatives and Senate. In September 1981, ap · 
pellees filed this suit, alleging that the plans had hem 

(1) 



2 

enacted pursuant to provisions of the North Carolina 
constitution that required, but had not received, pre­
clearance pursuant to Section 5 of the Voting Rights 
Act of 1965, 42 U.S.C. (1976 ed.) 1973c, and that the 
use of large multi-member districts submerged concen­
trations of black voters and diluted minority voting 
strength in violation of the Constitution and Section 2 
of the Voting Rights Act of 1965, 42 U.S.C. (1976 ed.) 
1973 (J.S. App. 3a-4a) .1 After the plans were ultimately 
adopted by the state legislature,2 appellees amended their 
pleadings to challenge five House Districts (Nos. 8, 21, 
23, 26, and 39) and two Senate Districts (Nos. 2 and 
22) and to conform their pleadings to the newly-amended 
Section 2 of the Voting Rights Act.3 The "gravamen" 
of appellees' claim with reference to these multimember 
districts was that the State's plan "makes use of multi­
member districts with substantial white voting major­
ities in some areas of the state in which there are suffi­
cient concentrations of black voters to form majority 
black single-member districts * * *" (J.S. App. 4a). 
The plan was in this respect claimed to violate amended 
Section 2 of the Voting Rights Act. 

2. The case was tried before a three-judge court on 
the basis of extensive stipulations of fact, documentary 
evidence, and oral testimony (J.S. App. Sa). The court 
entered an order and opinion containing extensive find­
ings on the various factors identified in the legislative 
history of amended Section 2 and case law as relevant 
to a vote dilution claim. J.S. App. 21a-51a. The court 
held that "it has now become possible for black citizens 
to be elected to ail levels of state government in North 
Carolina" (id. at 37a). However, the court further held 

1 The state constitutional provision to which the suit referred was 
a provision adopted in 1968 prohibiting the division of counties for 
the purpose of creating electoral districts. 

2 The proceedings are described in our earlier brief (at 1-2). 

3 Only two of these districts-House District 8 and Senate Dis­
trict 2-were subject to and had received preclearance under Sec­
tion 5 of the Voting Rights Act. 



3 

that, under the totality of the relevant circumstances, 
the redistricting plan in all seven challenged districts 
diluted minority votes in violation of amended Section 2 
and enjoined elections in the challenged districts (ibid.). 4 

The district court also reviewed at length the racial 
demographics and voting history of each challenged mul­
timember district. 

House District 21. House District 21, in Wake County, 
elects six members to the General Assembly on an at­
large basis (J.S. App. 19a ) . The population of the 
district is 21.8 ;vo black, and black voters constitute 15.1'% 
of all registered voters (ibid.) ;5 72 % of the white vot­
ing age population is registered to vote, and 49.7 ro of 
the black voting age population is registered to vote 
( id. at 24a n.22) . The black population is so situated 
that one single-member legislative district could be drawn 
within the present boundaries, with a black population 
of 67% ( id. at 20a) . Under the challenged plan and 
its predecessor/ one black legislator was elected in 1980 

4 The district court found (J.S. App. 51a-52a) that the totality of 
the following circumstances, in combination with the use of large 
multi-member districts, diluted minority votes in each of the chal­
lenged districts: (1) "the lingering effects of seventy years of 
official discrimination against black citizens in matters touching 
registration and voting," (2) "subst antial to severe racial polariza­
tion in voting," (3) "the effects of thirty years of persistent racial 
appeals in political campaigns," ( 4) "a relatively depressed socio­
economic status resulting in significant degree from a century of 
de jure and de facto segregation," and (5) "the continuing effect of 
a majority vote requirement." The court also found that in creating 
the sole single-member district challenged-Senate District 2-the 
State had diluted black voting strength by fracturing the black 
community into two districts containing black voting minorities 
(J.S. App. 52a). 

Subsequent proceedings are described in our earlier brief (at 3 
n.1). 

5 The court did not make a finding for any of the districts regard­
ing voting age population, which is the preferred measure. See City 
of R01ne v. United States, 446 U.S. 156, 186 n .22 (1980) ; Wyche v. 
Madison Parish Police Jury, 635 F.2d 1151, 1161-1162 (5th Cir. 
1981). 

6 The challenged multi-member districts continued pre-existing 
districts and their apportionments (J.S. App. 19a). Thus, it is pos-



4 

and reelected in 1982 ( id. at 35a, 44a). In those elec­
tions, respectively, he received the votes of 31 o/o and 39% 
of the white voters in the primary, and the votes of 44% 
and 45% of the white voters in the general election ( id. 
at44a.). 

House District 23. House District 23, in Durham 
County, elects three membe·rs at-large to serve two,..year 
terms in the General Assembly (J.S. App. 19a). The 
black population is 36.3% of the total, and blacks con­
stitute 28.6 o/o of the registered voters (ibid.) . 66 o/o of 
the white voting age population is registered ·to vote, and 
52.9 o/o of the black voting age population is registered 
( id. at 24a n.22). The black population is so situated 
that one single-member district could be drawn within 
the present boundaries, with a black population of 70.9.% 
( id. at 20a). Under the challenged plan and its prede­
cessor, this district has elected one black representative 
in every election since 1973 ( id. at 35a). The black legi&­
lator was unopposed in the general election in 1978, and 
in both the primary and general elections in 1980. In 
1978, he was elected with 16o/o of the white vote in the 
primary, and in 1982 he received 37% of the white vote 
in the primary and 43% of the white vote in the gen­
eral election. 7 A second black candidate also garnered 
26.% of the white vote in the 1982 primary ( id. at 43a-
44a). 

House District 36. House District 36, in Mecklenburg 
County, has an eight-member House dele.gation, elected 
at-large (J.S. App. 19a). Blacks constitute 26.5% of 
the district's population and 18o/o of its registered voters 
(ibid.). 73% of the white voting age population is regis­
tered to vote·, and 50.8 o/o of the black voting age popula­
tion is registered ( id. at 24a n.22) . The black popula­
tion of the district is so situated that two single .. member 
legislative districts could be drawn that would be 66.1% 

sible to evaluate the plan's dilutive impact, if any, by looking at 
results from more than one election. 

7 In the 1982 primary election there were only four candidates, 
two of whom were black, for three positions (J.S. App. 44a). 



5 

and 71.27o black ( id. at 20a). Under the present plan, 
one black representative was elected in 1982; he is the 
first black citizen to be elected to the House from Meck­
lenburg County in this century ( id. at 43a) . He re­
ceived 507o of the white vote in the primary and 42,% of 
the white vote in the general election (id. at 41a) .8 A 
second, unsuccessful, black candidate received 39% of 
the white vote in the 1982 primary and 297o in the gen­
eral election (ibid.) . 9 

House District 39. House District 39, in a part of 
Forsyth County, has five at-large seats in the General 
Assembly (J.:S. App. 19a). The population of the dis­
trict is 25.1% black, and blacks constitute 20.8% of the 
registered voters (ibid.) . 69.4 ro of the white voting age 
population is registered to vote, and 64.1% of the black 
voting age population is also registered ( id. at 24a n.22) . 
The black population is so situated that one single-mem­
ber legislative district, with a 70.07o concentration of 
black voters, could be drawn ( id. at 20a). Under the 
present plan, two of the five representatives. elected in 
1982 were black; under the predecessor plan, a black 
representative was elected in 1974 and reelected in 1976 
( id. at 35a). The two black representatives elected in 
1982 received 257o and 36% of the white vote in the 
primary election, and 42% and 46% in the general elec­
tion ( id. at 43a). One of these representatives had pre­
viously won the Democratic nomination in 1978 and 
1980 (with 287o of the white vote in 1978 and 40% of 
the white vote in 1980), but lost the general election in 
those years ( id. at 42a-43a). 

Senate District 22. Senate District 22, in Mecklen­
burg and Cabarrus Counties, is a four member district 
(J.S. App. 1.9a). The population is 24.3.% black, and 

8 There were only seven white candidates for eight positions in 
the primary (J.S. App. 42a). 

9 In addition, the district court observed that a black citizen has 
been elected mayor of the City of Charlotte, receiving 38% of the 
white vote in the general election against a white Republican (J.S. 
App. 35a). 



6 

16.8% of the registered voters are black (ibid.) . In 
Mecklenburg County, 73% of the white voting age popu­
lation is regiSitered to vote, as is 50.8% of the black 
voting age population ( id. at 24a n.22) .10 The black 
population is so situated that one singl&-member district 
could be created with a 70.0% black population ( id. at 
20a) . Under the pre.sent plan, no black Senator is, part 
of the delegation; however, a black citizen was elected 
from 1975-1980 ( id. at 34a). The black senat orial in­
cumbent (Alexander) received 47% of the white vote in 
the 1978 primary, and 41 ro of the white> vote in the gen­
eral election; his share of the white vote dropped to 23% 
in the 1980 primary ( id. at 42a). A second black candi­
date (Polk), running in 1982, garnered 32% of the white 
votes in the primary and 33 % in the general election. 
Ibid. 

INTRODUCTION AND SUMMARY OF ARGUMENT 

This is the first case in this Court to accord plenary 
appellate review to a trial court's ·finding of a violation 
of the 1982 amendment to Section 2 of the, Voting Rights 
Act. That provis.ion, enacted after an intense legislative 
struggle, represents a studied compromise that condemns 
only those eiectoral procedures that "result" in a denial 
of an "equal opportunity to participate in the electoral 
process." That conclusion is a matter of law, the proper 
conception of which must be established and assured by 
this Court. This ultimate determination requires deli­
cate judgments that can hardly be reached or reviewed 
by any mechanical standard. If the integrity of the Sec­
tion 2 compromise is to be maintained, moreover, an ap­
pellate court must assure itself not only that a trial court 
has considered the appropriate evidence in reaching its 
conclusion, but also that this evidence, taken as a whole 
and properly balanced, supports the trial court's an­
swer to the ultimate question that Congress has pre­
scribed. 

:w The district court did not make a finding for Carrabus County 
(see J .S. App. 24a-25a n.22). 



7 

The district court considered all of the evidence, but it 
reached an ultimate conclusion at odds with the correct 
legal standard. If left undisturbed, that decision me·ans 
that whereve·r there has been · discrimination in the past 
and some measure of racial polarization in voting in the 
present, district courts will he free to s.trike down vir­
tually any scheme that does not--or e•ven those that do­
deliver electoral successes proportional to minority vot­
ing strength. That is not what Congress intended. Spe­
cifically, we shall argue that the trial court, by ignoring 
recent minority electoral successe·s in the districts in 
issue, could not reasonably have found a violation under 
the prope:r "equal opportunity to participate" standard, 
but rather must implicitly have sought to guarantee con­
tinued minority electoral success. Further, the court be­
low adopted and made dispositive a definition of racial 
block vot'ing that, taken literally, might justify finding 
this factor present in v_irtually any district with a -ra­
cially mixed electorate and thus could justify requiring 
proportional representation in all such districts. Con­
gress crafted a precise standard for intervention in the 
electoral process, and fidelity to that standard requires 
that this judgment be set aside.U 

ARGUMENT 

THE DISTRICT COURT ERRONEOUSLY HELD THAT 
THE REDISTRICTJNG PLAN AT ISSUE VIOLATES 
AMENDED SECTION 2 OF THE VOTING RIGHTS 
ACT OF 1965 

A. Amended Section 2 Guarantees · Every Citizen The 
Right To An Equal Opportunity To Participate In The 
Political Process 

1. The legislative background of amended Section 2 
underscore·s the centrality of the principles noted above 
to the compromise enacted into that law. Amended Sec-

11 We will not discuss House District 8 and Senate District 2, 
because appellants' challenge to the district court's conclusion as to 
those districts is not within the scope of the Court's notation of 
probable jurisdiction. 



8 

tion 2 reflects the consensus of an overwhelming majority 
of the Congress, reached only after an intensive and 
devisive debate, whether to endorse or reject the holding 
in City of Mobile v. Bolden, 446 U.S. 55 (1980). The 
product of that debate was a provision that does not re~ 
quire proof of racial animus to esta:blish a violation of 
amended Section 2 and does not allo·w proof of electoral 
failure solely or even preponderantly to establish a vio­
lation under the Act. Congress chose an altogether differ­
ent approach: As adopted, Section 2 guarantees every 
citizen equal access to the electoral process and thus 
focuses upon that process i·tself.12 

a. Amended Section 2 originated in the 97th Con­
gress when H.R. 3112 was introduced to extend certain 
features of the 1965 Voting Rights Act and to modify 
Section 2 of the Act because of the decision in City of 
Mobile. H.R. 311:2 would have eliminated an intent 
standard by forbidding any jurisdiction from imposing 
or applying any electoral practice "in a manner which 
results in a denial or abridgement of the right * * * to 
vote on account of race or color * * * ," 13 a test claimed 

12 At the same time, the legislative history of amended Section 2 
is complicated, variegated, and, on occasion, contradictory. The 
language ultimately incorporated into this provision was proposed 
by Senator Dole as a means of resolving a deadlock in the Senate 
Judiciary Committee that arose after the Senate Constitution Sub­
committee had rejected the House version of Section 2. In this set­
ting, undue emphasis must not be given to the views of any one 
faction in the controversy. The legislative history must be under­
stood in t erms of its dominant movement and fundamental purposes. 
Statements of the majority in the Senate Report, while illuminative 
on many issues, must be evaluated against the record established 
before the Congress as a whole and particularly against statements 
of the additional views of individual members who insisted upon 
and supported the compromise. The statements of Senator Dole, the 
sponsor of the compromise, must also be given particular weight. 

13 H.R. 3198, 97th Cong., 1st Sess. (1981). See Extension of the 
Voting Rights Act: Hearings Before the Subcomm. on Civil and 
Constitutiorval Rights of the House Comm. on the Judiciary, 97th 
Cong., 1st Sess. Pt. 1, at 2 (1981) [hereinafter cited as House 
Hearings]. 



9 

by its supporters to stem from White v. Regester, 412 
U.S. 755 (1973), and Whitcomb v. Chavis, 403 U.S. 124 
( 1971). Most of the discussion in the House regarding 
H.R. 3112 was devoted to other aspects of the bill; the 
proposal to amend Section 2 attracted little debate.14 As 
passed by the House, H.R. 3112 contained the results test 
in the original bill and a disclaimer that numerical un­
derrepresentation itself violated Section 2.15 

b. After the House passed H.R. 3112, the Senate Sub­
committee on the Constitution began hearings on two 
bills, one that contained the results test in H.R. 3112 (.8. 
3112) and one that would have retained the City of 
Mobile standard (S. 1975).16 The ensuing debate focused 
on the proper standard for Section 2. Proponents of a 
results test chiefly argued that the Court's holding in 
City of Mobile insulated discriminatory practices from 
review because of the difficulty of obtaining evidence re­
garding the subjective motivations of legislators, espe­
cially when the practices in question were adopted long 
agoY They proposed that the analysis should be based 

14 See generally Boyd & Markman, The 1982 Amendments to the 
Voting Rights Act: A Legislative History, 40 Wash. & Lee L. Rev. 
1347, 1354-1379 (1983) [hereinafter cited as Boyd & Markman] . 

15 The disclaimer provided: "The fact that members of a mino·rity 
group have not been elected in numbers equal to the group's propor­
tion of the population shall not, in and of itself, constitute a violation 
of this section." H.R. Rep. 97-227, 97th Cong., 1st Sess. 48 (1981) 
(emphasis added) [hereinafter cited as House Report]. Although pe 
had sponsored the disclaimer, Representative Hyde later concluded 
that it f ailed to achieve its purposes. See 1 Voting Rights Act: 
Hearings on S. 53, et al. B efore the Subcomm. on the Cons'titution 
of the Senate Comm. on the Judiciary, 97th Cong., 2d Sess. 407-408 
(1982) (testimony of Rep. Hyde) [hereinafter cited as S enate 
Hearings]; id. at 886-887 (letter from Rep. Hyde to Sen. Hatch). 

Hl Senators Kennedy and Mathias (and more than 60 co-sponsors) 
introduced S. 1992, 97th Cong., 1st Sess. (1981), which was identical 
to H.R. 3112. 127 Cong. Rec. S15694 (daily ed. Dec. 16, 1981). 
Senator Grassley introduced S. 1975, 97th Cong., 1st Sess. (1981). 
127 Cong. Rec. S15372 (daily ed. Dec. 15, 1981). 

17 See, e.g., 1 Senate Hearings 199 (statement by Sen. Mathias); 
id. at 256, 265 (testimony of Benjamin L. Hooks, Exec. Dir., 



10 

upon the various so-called "objective" factors identified 
in White v. Regester and pre-City of Mobile lower court 
cases applying that standard. Critics of the results, test 
agreed, in essence, that a finding of unlawful vote dilu­
tion could and should be made on the strength of objec­
tive evidence, but were concerned with, among other 
things, the potentially-limitless scope of the tesU8 A 
principal concern was the implication left by the dis­
claimer: given its limited terms-that numerical under­
representation of minorities would not amount ain and 
of itself" to a violation of Section 2-opponents of the 
results test maintained that proportional representation 
would ineluctably follow simply from proof of some ad­
ditional factor identified in White or elsewhere.10 An­
other major criticism was that the House version lacked 
a "core value" or an "ultimate or threshold criterion" 
other than proportional representation for evaluating 
vote dilution claims.20 Supporters of the results test re­
peatedly assured its critics that it was not a mandate for 

NAACP); id. at 290-291 (testimony of Vilma Martinez, Pres., 
MALDEF); id. at 813-819 (Prepared Statement of Armand 
Derfner). Another criticism was that the intent test fostered racial 
divisiveness by requiring a person to be branded as a racist before 
a violation could be found. See id. at 1181 (Prepared Statement of 
Arthur Fleming, Chairman, U.S. Comm'n on Civil Rights). 

18 A complete discussion of the objections to the results test is 
contained in the Subcommittee's Report. See S. Rep. 97-417, 97th 
Cong., 2d Sess. 108-111, 127-158, 169-173 (1982) [hereinafter cited 
as Senate Report] (Voting Rights Act: Report of the Subcomm. on 
the Constitution of the Senate Judiciary Comm.) [hereinafter cit ed 
as Subcomm. Report]; see also Boyd & Markman 1396-1406 (dis­
cussing Subcommittee's objections) . 

19 See, e.g., 1 Senate Hearings 516 (statement of Sen. Hatch); id. 
at 229-231 (testimony of Prof. Walter Berns) ; id. at 407-408 (testi­
mony of Rep. Hyde); id. at 424-432 (testimony of Prof. Barry R. 
Gross) ; id. at 655 (testimony of Prof. John Bunzel) ; id. at 1438 
(testimony of Prof. Irving Younger) . See generally Subcomm. 
Report 142-146. 

2o Subcomm. Report 137. 



11 

proportional representation,21 that it was merely a means 
of ensuring that minorities were not effectively "shut 
out" of the electoral process,22 and that, given the heavy 
burden the test placed on a plaintiff-one supporter de­
scribed it as "incredibly difficult" 23-the test would in­
validate only those electoral practices that denied mi­
norities an equal opportunity to participate in the poUti­
cal process. 24 As Armand Derfner, head of the Voting 
Rights Project, put it, the "goal" of amended Section 2 
"is to create an opportunity-nothing more than an 
opportunity-to participate in the political system." 1 
Senate Hearings 821 (Prepared Statement) .25 Nonethe-

21 See, e.g., 1 Senate Hearings 200 (Prepared Statement o.f Sen. 
Kennedy) ("The courts have made clear that under the standard in 
our bill there is no right to a quota or to proportional representation, 
even in the context of at large elections"); id. at 243 (Benjamin L. 
Hooks, Exec. Dir., NAACP); id. at 283, 287 (Memorandum of Ralph 
G. Neas, Exec. Dir., Leadership Conf. on Civil Rights); id. at 796 
(testimony of Armand Derfner, Voting Rights Project). 

22 As Armand Derfner, head of the Voting Rights Project, put it, 
"[t]he precise proof might vary, but the essential element of proving 
that the racial minority was 'shut out,' i.e., denied access-not simply 
to winning offices but to the opportunity to participate in the elec­
toral system-was always required [under pre-City of Mobile 
cases]." 1 .Senate Hearings 810 (Prepared Statement); see also, 
e.g., id. at 223 (Prepared Statement of Sen. Kennedy) ; id. at 626 
(testimony of David Walbert). 

23 1 Senate Hearings 368 (testimony of Laughlin McDonald, 
Southern Regional Dir., ACLU). 

24 See, e.g., 1 Senate Hearings 201 (testimony of Sen. Mathias); 
id. at 223 (Prepared Statement of Sen. Kennedy) ("effectively shut 
out of a fair opportunity [to:] participate in the election"); id. at 
810, 819-820 (Prepared Statement of Armand De.rfner). 

2 5 Other supporters of the results standard made the same point. 
See, e.g., 1 S enate Hearings 305 (Prepared Statement of Vilma S. 
Martinez, President, MALDEF) ("The issue then, is not propor­
tional representation, but equal access to the political process") ; 
id. at 372 (Laughlin McDonald, Southern Regional Dir., ACLU) 
("What those [pre-City of Mobile] cases do is establish equality of 
access"). See also id. at 223 (Prepared Statement of Sen. Kennedy) ; 
id. at 275-276 (Prepared Statement of Benjamin L. Hooks, Pres. 
NAACP); id. at 283, 286-287 (Memorandum from Ralph G. Neas, 



12 

less, the Constitution Subcommittee redected the House 
effects test in favor of the City of Mobile standard. 2 
Senate Hearings 10. 

c. To break the deadlock, Senator Dole, with the hack­
ing of the President, offered a compromise version of 
Section 2 that responded to criticisms of the effects test 
by introducing "additional language" incorporated from 
White v. Regester "delineating what legal standard 
should apply under the results test" and "clarifying that 
[this test] is not a mandate for proportional representa­
tion." 2 Senate Hearings 60 (statement of Sen. Dole>); 
id. at 58-59. The most significant feature of the com­
promise was to modify and expand the language of the 
House-passed hill to ensure that "equal opportunity," not 
"proportional results," would he the legal test. Senate 
Report 193-194 (Additional Views of Sen. Dole); id. at 
199 (Supplemental Views of iSen. Grassley). As Senator 
Dole put it, because his version of amended Section 2 
"focus [es] on access to the proce1s8, not election re,gults" 
(2 Senate Hearings 61-62), the question to be ans,wered 
is "not whether [minorities] have achieved proportional 
election res,ults," but "whether members of a protected 
class enjoy equal access. I think that is ;the thrust of 
our compromise: equal access, whether it is, open; equal 
access to the politial process" ( id. at 60; see also 2 Sen­
ate Hearings 46 (Sen. Leahy) (" [i] t is the opportunity 
to participate, not the actual use of that right, which is 
crucial * * *") ) . The Committee adopted Senator Dole's 
compromise ( id. at 86), as did the entire Senate ( 128 
Gong. Rec. s·7139 (daily ed. June 18, 1982)). Although 
the Senate bill differed from the House version, the 
House dis,pensed with a conference and adopted the .Sen­
ate bill ( id. at H3846 (daily ed. June 23, 1982) ) . 26 

Exec. Dir., Leadership Conf. on Civil Rights); id. at 305 (Prepared 
Statement of Vilma S. Martinez, Pres., MALDEF) ; id. at 706 
(Memorandum from Frank R. Parker, Lawyers' Comm. for Civil 
Rights Under Law). 

26 There was little debate in the House, and, with one exception, 
no one disagreed with the thrust of Senator Dole's position that 



13 

2. The legislative history thus reveals that the com­
promise encompassed three key areas of consensus. First, 
there was widespread agreement that direct evidence of 
intent to discriminate should not be necessary to estab­
lish a violation under Section 2. House Report 29; Sen­
ate Report 193 (Additional Views of Sen. Dole). Sec­
ond, during the course of the debate, a consensus-Sena­
tor Dole described it as "a unanimous consensus"­
developed against permitting Section 2 claims to be based 
upon the inability of a group to achieve representation 
in proportion to its population within the jurisdiction.2 7 

Rather, members of Congress who favored 28 or opposed 29 

the original results test and the compromise version of 
amended Section 2, as well as private supporters of the 
bill,30 agreed that proof of minority underrepresentation 

"equal access" and an "equal opportunity to participate" was the 
standard for amended Section 2. See 128 Cong. Rec. H3840-H3841 
(daily ed. June 23, 1982) (Rep. Edwards); id. at H3841 (Rep. 
Sensenbrenner); id. at H3842 (Rep. Hyde); id. at H3846 (Rep. 
Butler). But see id. at H3844 (Rep. Lungren) (describing stand­
ard in terms of intent). 

27 Senate Report 193 (Additional Views of Sen. Dole); Senate 
Report 33 ; House Report 30; 128 Cong. Rec. S664 7 (daily ed. 
June 10, 1982) (Sen. Grassley); id. at S6920 (daily ed. June 17, 
1982) (Sen. Hatch); id. at S6961 (Sen. Dole) ; 18 Weekly Comp. 
Pres. Doc. 846 (June 29, 1982) (President's signing statement) . 

.28 As Senator Kennedy explained his version: "Section 2, as 
amended would not make mere failure of minorities to win propor­
tional representation a violation, even if that came as the result of 
at large elections. Plaintiffs would have to prove additional factors 
establishing that, in the total circumstances minority voters not 
only failed 'to win' but were effectively shut out of a fair opportu­
nity [to,] participate in the election." 1 Senate Hearings 223 
(emphasis in original) (Prepared Statement). 

29 See Subcomni. Report 139-147. 
30 Benjamin Hooks, Executive Director of the NAACP, made this 

point during the Senate hearings: "I would say that-and let me be 
very frank-simply proven results would not be enough to trigger 
the mechanism of Section 2. It would only trigger it if the results 
were caused by some practice. Results simply trigger looking at the 



14 

was a necessary but not a sufficient element of a success­
ful vote dilution claim, as the Court's decision in White 
and Whitcomb had held.3 1 Third, both sides in the con­
troversy agreed that the concepts of unconstitutional 
vote dilution developed by this Court in White and Whit­
comb and as applied by the lower courts prior to City 
of Mobile 32 should govern amended Section 2 cases.3 3 

Amended Section 2, as the text itself makes clear, thus 
focuses not on guaranteeing election results, but instead 
on securing to every citizen the right to an equal "oppor­
tunity * * * to participate in the political process * * *" 
(42 U.S.C. 1973). As Senator Dole, whose views, as 

practices; that is all." 1 Senate Hearings 267; see also, e.g., id. at 
283 (Memorandum of Ralph G. Neas, Exec. Dir., Leadership Conf. 
on Civil Rights) ; id. at 420 (Laughlin McDonald, Southern Re­
gional Dir., ACLU) ("I do not know of a single case ·x- -r.- * that 
says the mere absence of blacks from office is ever enough to violate 
either section 2 of the 14th or the 15th amendment. Not only are 
there no cases that have ever said that, but every case says precisely 
the opposite") ; id. at 957 (Prof. Norman Dorsen) ; id. at 987 (Pre­
pared Statement of Joseph L. Rauh, Jr.). 

31 Because the Senate endorsed this principle as well as the 
Court's decisions in Whitcomb and White which had enunciated it, 
the statement in the House report that the consistent defeat of 
minority or minority-backed candidates in at at-large system itself 
would establish a violation of amended Section 2 (House Report 
30-31) does not express Congress' intent. See also page 17 note 
39, infra. ' 

32 See, e.g., Black Voters v. McDonough, 565 F.2d 1 (1st Cir. 
1977); Hendrix v. Joseph, 559 F .2d 1265 (5th Cir. 1977); Dove v. 
Moore, 539 F.2d 1152 (8th Cir. 1976); Zimmer v. McKeithen, 485 
F.2d 1297 (5th Cir. 1973) (en bane), aff'd on other grounds sub 
nom. East Carroll Parish School Bd. v. Marshall, 424 U.S. 636 
(1976) ; see also 1 Senate Hearings 1216-1226 (Appendix to Pre­
pared Statement of Frank R. Parker, Lawyers' Comm. for Civil 
Rights Under Law) (collecting cases). The Court discussed these 
factors in Rogers v. Lodge, 458 U.S. 613, 619-620 n .8 (1982). 

33 See House Report 30 & n.104; Senate Report 27-30; id. at 104 
n.24 n 6 (Additional Views of Sen. Hatch) ; id. at 194 (Additional 
Views of Sen. Dole) ; id. at 198 (Supplemental Views of Sen. 
Grassley); 128 Gong. Rec. S6941 (daily ed. June 17, 1982) (Sen. 
Mathias) ; id. at S6961 (Sen. Dole) ; id. at H3841 (daily ed. June 23, 
1982) (Rep. Edwards). 



15 

principal sponsor of the compromise Section 2 that 
passed the Congress, provide an authoritative guide to 
the statute's construction,34 stated in explanation of his 
proposal, " [ c] itizens of all races are entitled to have an 
equal chance of electing candidates of their choice, but if 
they are fairly afforded that opportunity, and lose, the 
law should offer no redress." Senate Report 193 (Addi­
tional Views of Sen. Dole). Senator Dole made the same 
point during the floor debate on his compromise ( 128 
Cong. Rec. S6961 (daily ed. June 17, 1982)) and added 
that (ibid.) : 

[T] he standard is whether or not the political proc­
esses are equally "open," whether the,re is access, 
whether they are open in that members of a pro­
tected class have the same opportunity as others to 
participate in the political process and to elect can­
didates of their choice. 

In response to a question from Senator Thurmond 
whether "the focus on the section 2 standard [is] on 
equal access to the political process or is * .,. * on 
whether a minority group has achieved equal election 
results?" ( id. at S6962), Senator Dole replied (ibid.) : 

The focus in section 2· is on equal access, as it 
should be. I thank the Senator for directing the 
question. I know of no one in this Chamber and I 
heard no one anywhere else indicate that it should 
be otherwise. It should be on access. Is the system 
open to people in Kansas, South Carolina, North 
Carolina, California, New York, wherever? Do they 
have access and an opportunity to cast their vote? 
It is not a right to elect someone of their race but 
it is equal access and having their vote counted. 

Amended Section 2, Senator Dole further explained, 
would "[a] bsolutely not" pro,vide any redress "if the 

34 See, e.g., Grove City College v. Bell, No. 82-792 (Feb. 28, 1984), 
slip op. 11; North Haven Ed. of Educ. v. Bell, 456 U.S. 512, 527 
(1982). This is particularly true given Senator Dole's pivotal role 
in the adoption of amended Section 2 and the absence of a confer­
ence report on the Act. See North Haven, 456 U.S. at 527. 



16 

process is open, if there is equal access, if there are no 
barriers, direct or indirect, thrown up to keep someone 
from voting or having their vote counted, or register­
ing, whatever the process may include" (ibid. ) . In his 
view, so long as "[t]he political process leading to nom­
ination or election [is] -x- * * equally open to participa­
tion by members of a class of citizens without regard 
to race, co·lor, or language minority" there could not 
be "a denial o·r abridgement of the right to vote under 
the amendment" ( 128 Cong. Rec. S7120 (daily ed. June 
18, 1982) (colloquy between Sen. Dole and Sen. Gorton); 
see also id. at S7119 (Sen. Dole)); cf. Whitcomb v. 
Chavis, 403 U.S. at 153. 

Supporters of amended Section 2 in the Senate echoed 
Senator Dole's understanding of his compromise amend­
ment to Section 2. They repeatedly emphasized that the 
provision guaranteed "equal access" <!'

5 or "an equal op­
portunity to participate," 36 but that it did not apply 
where minority voters or candidates "failed to partici­
pate given an equal opportunity" 31 to do so.38 These 
statements demonstrate that the supporters of Senator 
Dole's compromise version of amended Section 2 shared 
his construction of its terms. Accordingly, the central 
issue under amended Section 2, as all participants in 

35 E.g ., 128 Cong. Rec. S6655 (daily ed. June 10, 1982) (Sen. 
Boren)); accord, id. at S6500 (daily ed. June 9, 1982) (Sen. 
Stevens) ("the issue to be decided under the results test is whether 
the political processes are equally open to minority voters") . 

36 128 Cong. Rec. S6560 (daily ed. June 9, 1982) (Sen. Kennedy); 
id. at S6557 (Sen. Stevens) . 

37 E.g., id. at S6779 (daily ed. June 15, 1982) (Sen . Specter). 
38 Accord, e.g., id. at S6647 (daily ed. June 10, 1982) (Sen. 

Grassley) ; id. at S6717 (daily ed. June 14, 1982) (Sen. Tower); 
id. at S6717-S6718 (daily ed. June 17, 1982) (Sen. Moynihan ) ; 
id. at S6964 (Sen. Kennedy) ; ibid. (Sen. Heflin ) ; id. at S7110 (daily 
ed. June 18, 1982) (Sen. Metzenbaum) ; id. at 87118 (Sen. Sasser) ; 
id. at S7138 (Sen. Robert Byrd). As Senator Robert Byrd put it, 
"[t]he law seeks to protect the right to vote, not the ability to be 
guaranteed election." Ibid. 



17 

the Senate floor debate agreed, is whether a challenged 
electo·ral practice "result[s] in the denial of equal access 
to any phase of the electoral process for minority group 
members" (Senate Report 30 (emphasis added)) .31l 

3. The foregoing discussion makes clear that appel­
lees err in claiming that district court's finding that the 
multimember district plan dilutes black votes is subject 
to Fed. R. Civ. P. 52 (a). Mot. to Dis. 21, 35-36. Like 
proximate cause in the law of torts, the term "results" 
requires an evaluation of the facts in light of the pur-

39 The legislative background to amended Section 2 also makes 
this point clear in another way. Under amended Section 5 of the 
Act, jurisdictions with a history of discrimination touching upon 
voting may not obtain approval to enforce changes in their election 
laws that have the effect of causing a retrogression in the position 
of minorities with respect to their exercise of the franchise. City of 
Lockhart v. United States , 460 U.S. 125, 133-136 (1983); Beer v. 
United States, 425 U.S. 130, 137 (1976). The legislative history of 
amended Section 2, however, conclusively shows that the Section 5 
retrogression standard was not incorporated into· Section 2. Senate 
Report 68; id. at 104 n.24 U 8 (Supplemental Views of Sen. Hatch) ; 
128 Cong. Rec. H3841 (daily ed. June 23, 1982) (remarks of Rep. 
Sensenbrenner with Rep. Edwards concurring) ; id. at S7095 (daily 
ed. June 18, 1982) (Sen. Kennedy) ; id. at 86930 (daily ed. June 17, 
1982) (Sen. DeConcini); 2 Senate Hearings 80 (Statement of Sen. 
Dole); 1 Senate Hearings 414 (testimony of Laughlin McDonald, 
Southern Regional Dir., ACLU); id. at 449 (testimony of Mayor 
Henry L. Marsh); id. at 801 (testimony of Armand Derfner); id. at 
891-892 (colloquy between Rep. Sensenbrenner and Sen. Grassley); 
id. at 1254 (colloquy between Subcomm. Counsel Markman and 
Julius L. Chambers, Pres., NAACP Legal Defense Fund); id. at 
1575-1576 (Prepared Statement of Nathan Z. Dershowitz, Amer. 
Jewish Congress). The Senate report expressly states that "[p]lain­
tiffs could not establish a Section 2 violation merely by showing that 
a challenged reapportionment -x- * * involved a retrogressive effect 
on the political strength of a minority group" (Senate Report 68 
n.224). In other words, while a retrogressive effect may be relevant 
evidence, access, not effect, is the touchstone of a Section 2 inquiry. 

While some courts have said that retrogression alone may violate 
amended Section 2, those courts have failed to consider the above 
legislative history. See Ketchum v. Byrne, 740 F .2d 1398, 1407 (7th 
Cir. 1984), cert. denied, No. 84-627 (June 3, 1985); Buskey v. Oliver, 
565 F. Supp. 1473, 1482 (M.D. Ala. 1983). 



18 

poses of the policy being served. Cf. Metropolitan Edison 
Co. v. PANE, 460 U.S. 766, 774 (1983) (construing 
terms "'environmental effect'" and " 'environmental 
impact' " in light of "the congressional concerns that led 
to the enactment of NEP A"). The question under 
amended Section 2-whether a particular electoral prac­
tice "results" in the denial of "equal access" to the polit­
ical process-thus calls for more than a factual conclu­
sion not only because Congress eschewed reliance upon 
a "mechanical 'point counting' device" to resolve Section 
2 claims (Senate Report 29 n.118; see 128 Cong. Rec. 
S6648 (daily ed. June 17, 1982) (Sen. Grassley) ) ; but 
also because the undertaking requires a careful anal­
ysis of the challenged electoral process, as informed by 
its actual operation, including the nonquantifiable, but 
undeniable, fact that a numerical minority may exercise 
substantial, and sometimes decisive, influence upon the 
process. See Whitcomb, 403 U.S. at 149-155.4

() The Court 
has recognized in a variety of other situations that a con­
clusion based largely upon the application of a rule of 
law to a particular set of facts is a legal, not a factual 
conclusion.41 In addition, for plaintiffs as well as de-

4() See, e.g., Whitcomb, 403 U.S. at 150 (footnote omitted) (where 
"ghetto votes were critical to Democratic Party success * * * it 
seems unlikely that the Democratic Party could afford to overlook 
the ghetto in slating its candidates" ) ; Dove v. Moore, 533 F.2d at 
1153, 1155 n.4 (noting that local voters "have a strong affinity for 
incumbents" and that each candidate's 40 % black constituency 
"cannot be ignored with impunity" ). See also Seamon v. Upham, No. 
P-81-49-CA (E.D. Tex. Jan. 30, 1984), aff'd sub nom. Strake v. 
Seamon, No. 83-1823 (Oct. 1, 1984) ; page 22 note 46, infra. 

41 Compare, e.g., Harper & Row, Publishers, Inc. v. Nation Enter­
prises, No. 83-1632 (May 20, 1985), slip op. 20, and Strickland v. 
Washington, No. 82-1554 (May 14, 1984), slip op. 27-28, with Wain­
wright v. Witt, No. 83-1427 (Jan. 21, 1985), slip op. 15-17, and 
Patton v. Yount, No. 83-95 (June 26, 1984), slip op. 11-13 & 
n.12. See generally Bose Corp. v. Consumers Union of Unrit ed 
States, Inc., No. 82-1246 (Apr. 30, 1984). In this respect, the in­
quiry under amended Section 2 is similar to the type of analysis 
that appellate courts follow in determining whether a particular 
adjudicative procedure is consistent with due process (e.g ., Walters 



19 

fendants "the stakes-in terms of impact on future 
cases and future conduct-are too great to entrust them 
finally to the judgment of the trier of fact" (Bose Corp. 
v. Consumers Union of United States, Inc., No. 82-1246 
(Apr. 30, 1984), slip op. 15 n.17; see id. at 15-25). Were 
the ultimate issue under amended Section 2 simply a 
question of fact, plaintiffs would be disabled from effec­
tively challenging decisions where, on an essentially 
standardless basis, the court determined that the "totality 
of the circumstances" did not support their case. Ac­
cordingly, because is it clear that an appellate court 
must independently resolve mixed questions of fact and 
law (Bose Corp., slip op. 15), this Court is not bound by 
Rule 52 (a) in determining whether the multi-member 
districts in the 1982 reapportionment plan violates Sec­
tion 2.42 

B. The District Court Misapplied The Factors Appropri­
ate To An Analysis Of Appellees' Claim Of Unlawful 
Vote Dilution 

In voiding the use of multi-member districts in the 
1982 reapportionment plan, the district court made two 
fundamental errors in construing and applying amended 
Section 2, either of which is sufficient to, require reversal. 
First, the court found a violation of the statute in the 

v. Natiooo,l Ass'n of Radiation Survivors, No. 84-571 (June 28, 
1985)) and whether a state law violates the First Amendment 
Establishment Clause (e.g ., Grand Rapids School Dist. v. Ball, No. 
83-990 (July 1, 1985)). 

42 The decisions of this Court and the lower courts both before 
City of Mobile and after passage of amended Section 2 also make 
this point clear. These decisions have engaged in a far more 
searching review of a district court's analysis than application 
of Rule 52 (a), which appellees advocate here, would permit. See, 
e.g., Whitcomb v. Chavis, 403 U.S. at 144-155; Jones v. City of 
Lubbock, 727 F.2d 364, 383-386 (5th Cir. 1984); H endrix, 559 F.2d 
at 1268-1271; David v. Garrison, 553 F.2d 923, 929-931 (5th Cir. 
1977) ; Bradas v. Rapides Parish Police Jury, 508 F.2d 1109, 1112-
1113 (5th Cir. 1975) . The court in Velasquez v. City of Abilene, 
725 F.2d 1017, 1021 (5th Cir. 1984), thus erred in stating that an 
ultimate Section 2 finding is a question o.f fact. The court was 
mistaken as to the central question to be answered under the 
statute. Pages 14-17, supra. 



20 
absence of evidence that the "results" of the multi­
member legislative districts challenged here denied mi­
nority voters an equal opportunity to participate in the 
electoral process. Second, the court adopted an erroneous 
definition of racially polarized voting, one that miscon­
ceives the proper force of that criterion as an e,lement of 
a successful Section 2 claim. 

1. a. Each of the districts is a multimember district. 
However, it is firmly settled that multimember districts 
are not inherently unlawful. Senate Report 33; White, 
412 U.S. at 765; Whitcomb v. Chavis, supra; see also 2 
Senate Hearings 81 (statement of Sen. Dole). While it 
is true that in each of the districts at issue here it would 
be possible to create one or more single~member districts 
with effective black voting majorities (see pages 3-6, 
supra), this point cannot be dispositive. Minority voters 
have no right to the creation of safe electoral districts 
merely because they could feasibly be drawn. Whitcomb 
v. Chavis established that principle prior to the 1982 
amendment to Section 2, and the Court's recent summary 
affirmances in Brooks v. Allain, No. 83-1865 (Nov. 13, 
1984), and Strake v. Seamon, No. 83-1823 (Oct. 1, 1984), 
have reaffirmed that principle unde,r amended Section 2Y 

43 In Seamon, the district court rejected a Section 2 claim that 
minority voters were entitled to a " 'safe' district in which the 
minority population approaches 65% of the overall population" 
(No. P-81-49-CA '(E.D. Tex. Jan. 30, 1984), slip op. 11-12). Under 
the challenged plan, minority voters, while not guaranteed the 
ability to elect one a representative of their choice, were found to 
"exert a significant impact" and to "play pivotal roles in key elec­
tions" in two high minority impact districts (id. at 15). Similarly, 
in Brooks, the plaintiffs urged the three-judge district court to 
create a congressional district with a 64% black population mini­
mum on the ground that, because of low voter registration and 
turnout among blacks, they would be unable to elect candidates of 
their choice with a lesser percentage. In rejecting the super­
majority plans proposed by the plaintiffs, the court noted that 
"[a,]mended § 2 * * * does not guarantee or insure desired results, 
and it goes no further than to afford black citizens an equal oppor­
tunity to participate in the political process" (No. GC82-80-WK-O 
(N.D. Miss. Apr. 16, 1984), slip op 15). This Court's summary 
affirmances in Seamon and Brooks establish that minorities do not 



21 

Nor can it be presumed without more that "safe" seats 
for minority officeholders would necessarily be in the in­
terests of minority voters. See United States v. Board of 
Supervisors, 571 F.2d 951, 956 (5th Cir. 1978). Ac­
cordingly, if the "gravamen" of appellees' claim is simply 
that North Carolina chose to use multimember districts 
where "there are sufficient concentrations of black voters 
to form majority black single-member districts" (J.S. 
App. 4a), their claim necessarily falls short of establish­
ing a violation. 44 

b. Moreover, in three of the challenged districts, black 
candidates supported by the black community have been 
elected under the challenged plan in numbers as great as 
or greater than would be expected under a single-member 
plan, and black voters have wielded influence over other 

have a right under Section 2 to the creation of "safe" minority­
controlled districts, even where other objective factors contribute 
to the finding of a violation of Section 2 under the "totality of the 
circumstances." Moreover, as we explained in our brief (at 8-19) 
in City Council v. Ketchum, cert. denied, No. 84-627 (June 3, 1985) 
(a copy of which has been served upon the parties), creation of 
super-majority districts as a matter of law is inappropriate to 
remedy a Section 2 violation. 

44 The district court correctly recognized that a lawful state 
policy regarding a particular electoral practice is entitled to weight 
(Whitcomb, 403 U.S. at 149; see Upham v. Seamon, 456 U.S. 
37 (1982)), but erred by disregarding the North Carolina policy 
against splitting legislat ive districts (J .S. App. 49a-50a). The 
court acknowledged that "the state adduced fairly persuasive evi­
dence that the 'whole-county' policy was well-established historically, 
had legitimate functional purposes, and was in its origins com­
pletely without racial foundation" (id. at 50a). But the court held 
that "that all became irrelevant as matters developed in this par­
ticular legislative plan" (ibid.) because the legislature chose to 
split counties "only when necessary to meet population deviation 
requirements or to obtain § 5 preclearance" (ibid. (emphasis 
added)). That reasoning is plainly in error. The fact that the 
state adhered to its policy except where necessary to ensure that 
each voter-black and white-had his vote counted equally and to 
ensure that the reapportionment plan did not cause a retrogression 
in the political strength of black voters (see page 17 note 39, supra) 
surely counts in the state's favor. 



22 

seats as well. Even since 1973, black vote,rs in House 
District 23, who make up 36.3% of the population and 
28.6% of the registered voters, have elected a black mem­
ber of the three-person delegation. Page 4, supra.45 In 
House District 21, the 21.8'% black minority, constitut­
ing 15.1% of the registered voters,, elected a black repre­
sentative to its six-member delegation in 1980 under a 
substantially-identical predecessor to the challenged plan 
(J.S. App. 19a) and reelected him in 1982 under the 
challenged plan. Pages 3-4, supra. The district court's 
error is even clearer in House District 39. In that dis­
trict, where 25.1,% of the population is black and 20.8% 
of the registered voters are black, a black candidate was 
elected to the five-member delegation in 197 4 and re­
elected in 1976. In 1982, under the challenged plan, two 
black representatives, or 40% of the delegation, were 
elected. Page 5, supra. By contrast, under the alter­
native plan favored by appellees, in each of these dis­
tricts black voters would be relegated to one single­
member district with a large black majority. The ability 
of black voters to contest the remaining seats would be 
lessened- indeed, in House District 39 minority voters 
could have a reduced number of delegates-and (more im­
portantly) their e,lectoral influence on the other repre­
sentatives would be reduced. 46 Accordingly, judged simply 
on the basis of recent electoral "results," the multimember 

45 The population percentages. in the five counties may overesti­
mate the actual voting strength of minorities, because the per­
centage voting age population in these districts may be less than 
the population percentage. See page 3 note 5, supra. 

46 As Prof. Archibald Cox informed the Senate Subcommittee, 
" [ v] oters in a minority group may have exactly the same oppor­
tunities for participation as other voters, even though no members 
of the group are elected to office. The minority may not vote as 
a bloc. The minority may vote as a bloc but make its influence 
felt in the selection of non-minority candidates for election, in 
framing their programs and policies, and in support of one or 
more candiates against their opponents." 1 Senate Hearings 1428 
(Prepared Statement). Indeed, in the 1982 primaries in House 
Districts 23 and 36, whites did not field a candidate for each of the 



23 

plans in these districts have apparently enhanced-not 
diluted-minority voting strength. 

In the remaining districts-House District 36 and 
Senate Dis:trict 22-black candidates have been less suc­
cessful. Even there, however, the 26.5,% black minority 
in the House district, constituting 189"o of the registered 
voters, elected a black member to the e~ight-member dele­
gation in 1982, and a second black candidate (who lost 
in the general election) received 39% of the white vote 
in the primary. Pages 4-5, supra. In Senate District 22, 
although the 24.3% black minority, constituting 16.8% 
of the registered voters, has not been able to elect a black 
Senator in the 1980s, a black candidate prevailed through­
out the period 1975-1980. Pages 5-6, supra.47 

open positions. Pages 4-5 notes 7-8, supra. That fact reinforces 
the conclusion that blacks have not been denied equal access to 
the electoral process in these districts by virtue of the multi-member 
plan, because the make up of the candidate slate is itself a reflection 
of and a response to the voting strength of the various constituencies 
in a district. 

47 Appellees seek to minimize the significance of this electoral 
success on the ground (Mot. to Dis. 26-27) that the 1982 election 
year was "obviously aberrational"-attributing this conclusion 
to the district court. However, the district court's words have been 
taken out of context. The court's finding (J.S. App. 37a (footnote 
omitted)) was as follows: 

There are intimations from recent history, particularly from 
the 1982 elections, that a more substantial breakthrough of 
success could be imminent-but there were enough obviously 
aberrational aspects present in the most recent elections to 
make that a matter of sheer speculation. 

In a footnote, the court observed that both parties had offered 
evidence to establish either that the 1982 elections presaged a 
"breakthrough" or that they were "aberrational." The court stated 
that its "finding" in text (quoted above) "reflects our weighing 
of these conflicting inferences" (id. at 37a n.27). It is thus inac­
curate for appellees to assert that the district court adopted their 
view that the 1982 elections should be disregarded as "aberrational." 
In fact, the most that can be said is that the court rejected the 
opposing view-that the 1982 election results should be deemed 
evidence that black candidates would achieve even greater success 
in the "imminent" future. 



This experience cannot be reconciled with the district 
court's holding that the challenged plan results in vote 
dilution.48 Indeed, the district court neve,r articulated a 
standard under which "results" such as these could sup­
port a conclusion that the multi-member electoral system 
in these districts- which is the procedure under challenge 
-is "not equally open to participation" by black voters. 
The court only stated-without reference to actual results 
in any of the challenged districts-that "the success that 
has been achieved by black candidates to date" is "too 
minimal in total number and too recent" to support a 
finding that a black candidate's race is no longer "a 
significant adverse factor" (J.S. App. 37a-38a) .49 How-

48 It is inappropriate to conclude, as some courts have done, that 
the state must prove that the existence of past discrimination has 
not reduced the current potential electoral success of black candi­
dates. McMillan v. Escambia County, 748 F.2d 1037, 1045 (5th Cir. 
1984). That approach misconstrues the governing legal standard, 
improperly shifts the burden of proof, and requires proven and con­
tinued minority electoral success to avoid Section 2 liability. Neither 
Congress nor Senator Dole had any such requirement in mind. 
Pages 12-17, supra, and pages 27-28, infra. 

49 Appellees claim (Mot. to Dis. 27, 41; Supp. Br. 10 & n.9) that 
the district court's disparagement of black electoral success in the 
challenged districts is supported by language in the Senate ma­
jority repnrt, a document which, we have argued, cannot be taken 
as determinative on all counts. In any event, the report simply 
notes (Senate Report 29 n.115) that the election of a "few" minority 
candidates should not be deemed conclusive because it would enable 
election officials to evade amended Section 2 by engineering the 
election of "a 'safe' minority candidate·." The case cited by the 
report to illustrate this caveat, Zimmer, arose in a context "where 
the multi-member system was devised, despite historic policy and a 
state statute forbidding it, in reaction to a dramatic voter regis­
tration drive directed at blacks, who, although comprising 58 per 
cent of the parish's population, had not been permitted to vote 
until 1962" (Black Voters, 565 F.2d at 4). Given these circum­
stances, an "abrupt change in policy-which coincided with in­
creased black voter registration" (Wallace, 515 F.2d at 631), 
Zimmer declined to treat recent black electoral success as dis­
positive. 

Appellees have failed to prove that black electoral success in these 
districts is attributable to 11th hour efforts by the General As-



25 

ever, the election of representatives in numbers as great 
as or greater than the approximate black proportion of 
the population, as in House Districts 21, 23, and 39, is 
surely not "minimal." And in House District 36 and 
Senate District 22, while the results admittedly fall short 
of a standard of "proportional representation"- which 
Congress rejected as the governing legal criterion-mi­
nority candidates either are or have been successful and 
plainly are competitive.50 In fact, the district court itself 
concluded that "[t]hirty-five years after the first success,.. 
ful candidacies for public office by black citizens. in this 
century, it has now become possible for black citizens to 
be elected to office at all levels of state government in 
North Carolina" (J.S. App. 37a). 

The district court also erred by discounting the proven 
minority electoral success on the ground that it was "too 
recent in relation to the long history of complete denial 
of any elective opportunities" to support the conclusion 

sembly to engineer the election of "safe" minority candidates to 
thwart a Section 2 claim. Indeed, the district court made no men­
tion of any evidence that would tend to support such a claim. More­
over, the district court noted that "in recent years there has been 
a measurable increase in the ability and willingness. of black citi­
zens to participate in the state's political processes and in its 
government at state and local levels" (J.S. App. 47a). The district 
court discounted this increased participation because of its finding 
of racial polarization (ibid.), but that finding is flawed in several 
respects (see pages 28-33, infra). 

50 The court's reasoning is also flawed in another respect. Al­
though the district court made factual findings on a district-by­
district basis, it drew its ultimate legal inferences regarding racial 
bloc voting and the effect on minority electoral opportunities on the 
basis of " [ t] he overall results achieved to date at all levels of 
elective office" (J.S. App. 37a). It is only on such a basis that the 
court could have held that black electoral success is "minimal" in a 
district such as House District 39, where the 25.1% black minority 
has, with substantial white support, elected 40% of the at-large 
representatives. To invalidate a specific district on the basis of 
generalized statewide results at "all levels of elective office" is a 
clear legal error. See White v. Regester, 412 U.S. at 769 (requiring 
an "intensely local appraisal" of the electoral scheme). 



26 

that "a black candidate's race is no longer a significant 
adverse factor" (J.S. App. 37a-38a). That ruling is over­
broad. To the extent that the court held that past dis­
crimination cannot be overcome by providing minorities 
with contemporary access to the process, that ruling is in 
error. The lower court decisions prior to City of Mobile 
repeatedly emphasized that the key question is not 
whether there was past discrimination but whether that 
discrimination prevents minorities from currently par­
ticipating in the political process. See, e.g., Hendrix, 
559 F.2d at 1270; David, 553 F.2d at 930; Bradas, 508 
F.2d at 1112; Zimmer, 485 F.2d at 1306; accord, Mc­
Carty v. Henderson, 749 F.2d 1134, 1137 (5th Cir. 
1984) ."1 Historical discrimination that has resulted in 
a current lower minority registration rate, for instance, 
as the district court found to be the case here (J.S. 
App. 22a-26a & n.22), is an entirely appropriate con­
sideration under amended Section 2.52 But past dis­
crimination that doe's not deny minorities current access 
to the political process cannot support a violation of the 
Act.53 And to the extent that the district court held that 

51 As Senator Heflin stated, " [ t]he Dole compromise has a now 
application but allows for a consideration of yesterday factors 
as well as present day good faith efforts to remedy past mistakes 
if the yesterday factors touch on the new result." 128 Cong. Rec. 
S6964 (daily ed. June 17, 1982). 

52 This history may have had an effect in House District 36 and 
Senate District 22, given the electoral results in those districts; 
but, viewed in combination with other factors, it appears not to have 
shut blacks out of the electoral process there (see pages 32-34, infra) . 
Given the fact that minorities have been elected to office in House 
Districts 21, 23, and 39 in numbers at least as great as would be 
expected under a single-member system, the historical discrimina­
tion found by the district court does not appear to have affected 
the electoral opportunities that black voters enjoy in those districts. 

53 The district court thus plainly erred by relying (J.S. App. 
29a) upon inoperative numbered seat and anti-single shot voting 
requirements of state law. As the court itself noted (id. at 23a-24a), 
those requirements were invalidated more than a decade ago 
(Dunston v. Scott, 336 F. Supp. 206 (E.D.N.C. 1972)), and there 
is no basis in amended Section 2 (or logic) for concluding that these 



27 

past discrimination persists in the form of racial bloc 
voting, the court relied upon an erroneous definition of 
that concept, as we will later explain. 

Congress could not have expressed more cle,arly its in­
tent'ion not to invalidate multimember districting plans 
where minorities have had an equal oppoTtunity to, par­
t-icipate in the electoral process, even if minority candi­
dates did not win a proportionate share of the seats. 54 

Congress adopted Senator Dole's compromise precisely to 
ensure that Section 2 would guarantee minority voters 
access to the electoral process-not ensure victories for 
minority candidates-as the Senate floor debate plainly 
demonstrates. Pages 15-17, supra. See also Rogers, 458 
U.S. at 616; Whitcomb, 403 U.S. at 158-159 (multi­
member districts challenged for "their winner-take .. all 
aspects"). 55 The pre-City of Mobile decisions of this and 
other courts bear out that multimember districts are not 
unlawful whe,re, as here, minority candidates are not 
effectively shut out of the electoral process. The closest 

now-repealed legal measures could have any current effect on the 
multimember system. See pages 12-17, supra (discussing Sen. Dole's 
compromise) . 

54 The district court plainly misconstrued the significance of 
Congress' r ejection of the proportional representation standard. 
The court dismissed the "proportional representation" disclaimer 
in Section 2 (b), 42 U.S.C. 1973 (b), as meaning no more than that 
the fact that blacks have not been elected in numbers proportional 
to their percentage of the population "does not alone establish that 
vote dilution has resulted" (J .S. App. 15a & n.13 (emphasis added)). 
As discussed above (pages 9-17), the disclaimer was expressly 
drafted to avoid any such narrow interpretation. In effect, the 
district court has interpreted the Act as imposing a "proportional 
representation plus" standard, rather than an "equal opportunity" 
standard, as Congress intended. 

55 As Armand Derfner explained to the Senate Subcommittee (1 
Senate Hearings 803) : "the at-large elections that I * * * have 
been focusing on are those in which the result of those at-large 
elections is basically to shut out the minority voters. It is not a 
question of whether they will get more or less or whether the ma­
jority voters will get more or less. It is a question of some versus 
nothing." 



28 

analogy to this case is Dove v. Moore, supra, in which 
the court of appeals upheld the validity of an at-large 
system under which the 40% black minority elected one 
member to an eight-member city council. Indeed, in many 
cases prior to City o1 Mobile involving at-large voting sys­
tems where the aggregate of factors was unquestionably 
less favorable to minority voters than in this case-. most 
particularly, where no black citizen had ever been elected 
under the system-· challenges to the voting plans were 
nonetheless held to be insufficient. See, e.g., Black Voters 
v. McDonough, supra; Hendrix v. Joseph, supra; David 
v. Garrison, supra; McGill v. Gadsden County Comm'n, 
535 F.2d 277 (5th Cir. 1976). And it is significant that 
the 1Senate majority and other supporters of amended 
Section 2 pointed to these cases-including Dove v. Moore 
-as indications of the way in which the new provision 
would operate. See, e.g., Benate Report 33; 1 Senate 
Hearings 795-796, 797 (testimony of Armand Derfner); 
id. at 1701-1702 (colloquy between :Sen. Mathias and 
Assistant Attorney General Reynolds regarding Dove) . 
Accordingly, given the proven electoral success that black 
candidates have had under the multimember system, the 
district court erred by concluding that use of tha:t system 
"results" in a denial of "equal access" to the electoral 
process for minorities,. 

2. The district court correctly held (J.S. App. 15a) 
that proof .of racial bloc voting is the "linchpin" of a 
successful vote dilution claim. See Senate Report 33.56 

511 As the Court explained in Whitcomb ( 403 U.S. at 153), where 
"the failure of the ghetto to have legislative seats in proportion 
to its population emerges more as a function of losing elections than 
of built-in bias against poor Negroes * * * [t]he voting power of 
ghetto residents may have been 'cancelled out' * * * but this seems 
a mere euphemism for political defeat at the polls." See also United 
Jewish Orgs. v. Carey, 430 U.S. 144, 166 n.24 (1977) (plurality 
opinion) ("if voting does not follow racial lines, the white [or 
blacll;] voter has little reason to complain that the percentage of 
nonwhites [or whites] in his district has been increased"). 

It is erroneous, however, to conclude that proof of racial bloc 
voting atop numerical underrepresentation together are sufficient 



29 

However, the district court adopted a definition of racial 
bloc voting under which racial polarization is "substan­
tively significant" or "severe" whenever "the results of 
the individual election would have been different depend­
ing upon whether it had been held among only the white 
voters or only the black voters in the election" (J.S. App. 
39a-40a (footnote omitted) ) . This means that even a 
minor degree of racial bloc voting would be sufficient to 
make out a violation, regardless of whether it actually 
results in black electoral defeats. For instance, in a two­
person election where there is a small white voting ma­
jority, if the white candidate receives 51% of the vote in 
the white community and 49ro of the vote in the black 
community, and the black candidate receives the reverse, 
the district court would hold that the community is 
severely racially polarized. That definition is unaccept­
able because "'there will almost always be a raw correla­
tion with race in any failing candidacy of a minority 
whose racial or ethnic group is [·a] small percentage of 
the total voting population'" (Lee Corunty Branch of 
NAACP v. City of Opelika, 748 F.2d 1473, 1482 n.15 
(11th Cir. 1984) (quoting Jones v. City of Lubbock, 730 
F.2d 233, 234 (5th Cir. 1984 ) (Higginbotham, J., spe­
cially concurring)) ; see Terrazas v. Clements, 581 F. 

to establish a violation of amended Section 2, as some courts have 
said. See McMillan, 748 F.2d at 1043; United States v. Marengo 
County Comm'n, 731 F.2d 1546, 1566 (11th Cir. 1984). Supporters 
of the Act stated that proof of more than numerical underrepre­
sentation and racial bloc voting is essential to establish a Section 
2 violation. See 1 Senate Hearings 819-820 (Prepared Statement 
of Armand Derfner) (emphasis in original) ("amended section 2, 
like White v. Regester, applies only in that small category of places 
where there is no functioning system of politics for minority voters, 
where there is already severe racial division, and where it is simply 
impossible for minority voters to have any significant opportunity 
under the election system as it is" ) ; accord, e.g., id. at 287 (Memo­
randum of Ralph G. Neas, Exec. Dir., Leadership Conf. on Civil 
Rights) ; id. at 564 (testimony of Joaquin G. Avila, Assoc. Gen. 
Counsel, MALDEF); id. at 1184 (testimony of Frank Parker, Dir., 
Voting Rights Project, Lawyers' Comm. for Civil Rights Under 
Law). 



30 

Supp. 1329, 1351-1352 (N.D. Tex. 1984) (three-judge 
court) (test is whether "such bloc voting as may exist" 
operates so as to "persistently defeat [minority] candi­
dates"); accord, Seamon v. Upham, slip op. 10 n.4.57 

Under the district court's definition, virtually any elec­
toral district in the country might be deemed to suffer 
"substantively significant" racial bloc voting. Congress 
believed that the contrary was true, however. See Senate 
Report 33 (in "most communities" minority candidates 
"receive substantial support from white voters") .458 

57 In most vote dilution cases, a plaintiff can establish a prima 
facie case of racial bloc voting by using a statistical analysis of 
voting patterns that compares the race of a candidate with the 
race of the voters. A defendant can then introduce its own study, 
which takes other factors into account, to r ebut a plaintiff's prima 
facie case. For a discussion, in a different context, of the type of 
statistical studies that can be used, see McCleskey, v. Zant, 580 
F. Supp. 338, 352-379 (N.D. Ga. 1984), aff'd, 753 F.2d 877 (11th 
Cir. 1985) (en bane). Resort to such analyses has been approved. 
As Judges Higginbotham and Wisdom have cogently observed, "race 
or national origin may mask a host of other explanatory variables" 
including "explanatory factors * * * as intuitively obvious as cam­
paign expenditures, party identification, income, media use measured 
by cost, religion, name, identification, or distance that a candidate 
lived from a particular precinct" (Jones, 730 F.2d at 235 (Higgin­
botham, J., specially concurring) ; Lee Courl!ty, 748 F.2d at 1482 
(Wisdom, J.)). 

58 See 1 Senate Hearings 821 (emphasis added) (Prepared State­
ment of Armand Derfner) ("Section 2, of course, will apply only 
in those places where there is already an extraordinary amount of 
[racial] division") . Other witnesses also described racial bloc 
voting in less absolute terms than the district court. See id. at 
306 (Prepared Statement of Vilma S. Martinez, President, 
MALDEF) (emphasis added) ("'It is a situation where, when 
candidates of different races are running for the same office, the 
voters will by and large vote for the candidate of their own race' ") 
(citation omitted) ; id. at 543 (testimony of Prof. Susan A. Mac­
Manus (emphasis added) ("racial polarization * * * occurs when 
citizens of one racial group uniformly vote for one candidate and 
citizens of another racial group uniformly vote for another. * * * 
[T]he basic purpose of the test [for calculating racial polarization] 
is to determine whether race is the primary and exclusive deter­
minant of individual voting decisions across time in any given com­
munity"). 



31 

If white voters are willing to cross racial lines in suf­
ficient numbers that "minority candidates [do] not lose 
elections solely because of their race" (Rogers, 458 U.S. 
at 623), then it is largely irrelevant whether the black 
candidate would have won even if the election "had been 
held among only the white voters" (J.S. App. 40a). In 
that case, racially polarized voting, to the extent that it 
exists, is not "the overriding criterion in voting" (Dove, 
539 F .2d at 1156). It was firmly settled prior to 1982 
that no person had the right to be represented by mem­
bers of any particular group to which he belongs or to 
participate in an electoral process that maximizes his 
chances of success, either as a voter or a candidate. 
Rather, the principle repeatedly endorsed was the right 
to participate in an electoral process-to vote, first and 
foremost, but also to join a political party, to participate 
in its affairs, to become a candidate (Whitcomb, 403 U.S. 
at 149-150)-in which there is no "built-in bias" against 
the opportunity to participate ( id. at 153) .:59 Amended 
Section 2 reaffirmed these principles. See Senate Report 
23-24, 30. It thus follows that where "blacks and whites 
alike have rejected race as the overriding criterion in 
voting" (Dove, 539 F.2d at 1155-1156), then, since no 
such "built-in bias" exists, "minority candidates [will] 
not lose elections solely because of their race" (Rogers, 
458 U.S. at 628), and the political process is, by defini­
tion, "equally open to participation" by mino,rities (White, 
412 U.S. at 766; see Whitcomb, 403 U.S. at 153). In 
other words, the relevant inquiry is not simply into the 
existence of bloc voting by race; the court must assess 
the effect of racial polarization on the opportunity for 
blacks to participate in the political process. Only where 
the impact of racial bloc voting in combination with the 

59 See City of Mobile, 446 U.S. at 75-80 (plurality opinion) ; 
id. at 86 (Stevens, J., concurring in the judgment); id. at 111 n.7 
(Marshall, J., dissenting); United Jewish Orgs., 430 U.S. at 165-
168 (plurality opinion) ; Beer, 425 U.S. at 136 n.8; Whitcomb, 403 
U.S. at 149-160; Taylor v. McKeithen, 499 F.2d 893, 905 (5th Cir. 
1974) (Wisdom, J.) ; Turner v. McKeithen, 490 F.2d 191, 197 (5th 
Cir. 1973) (Brown, C.J.). 



32 

challenged procedure--here, multi-member districts-de­
prives black voters of equal access to the electoral process 
is Section 2 offended. 

3. Given the electoral success that black candidates 
have attained with substantial white support in House 
Districts 21, 23, and 39-success equal to or greater than 
could be expected under single-member districts-it is dif­
ficult to imagine any basis for invalidating these districts 
under Section 2.60 And while black candidates have been 
less successful in House District 36 and Senate District 
22, the district court's findings as to those distr icts war­
rant no different result. They show that black candidates 
have received substantial white voting support. 61 In one 

·oo In House Districts 21, 23, and 39, where black candidates have 
been elected in numbers at least as great as would be expected under 
a single-member plan, black candidates have received substantial 
white support. In House District 21, the black candidate in the 1978 
primary (Blue) received 21 % of the white vote, but he later 
increased his share of the white vote in 1980 to 31% in the 
primary and 44 % in the general election and was elected ; in 
1982 he again increased his share to, respectively, 39 % and 45 % 
of the white vote in the primary and general election and was re­
elected. J.S. App. 44a. In House District 23, a black Republican 
ran in the 1978 general election and received more white votes 
(17%) than black votes (5%) . The black candidate was unopposed 
in the 1978 general election, and in the 1980 primary and general 
election. Nonetheless, he received 16 % and 37% of the white vote 
in the 1978 primary and general election, 49% of the white vote 
in the 1980 general election, and 37 % and 43 % of the vote in the 
1982 primary and general election, r espectively. J.S. App. 43a-44a. 
In House District 39, the two black representatives elected in 1982 
received 25 % and 36 % of the white vote in the primary, and 42 % 
and 46% of the white vote in the general election. One of those 
representatives had previously r eceived 40 % and 32 % of the white 
vote in the 1980 primary and general election, respectively. In 
1978, a black republican candidate received more white votes (33%) 
than black votes (25 %) in the general election. J.S. App. 42a-43a. 

61 In House District 36, the black r epresentative elected in 1982 
received 50% of the white vote in the primary and 42% in the 
general election. Another, unsuccessful black candidate in that 
race received 39% and 29 % of the white vote in the primary and 
general election, respectively. This was an increase from 1980, 



33 

case, a black candidate ran unopposed for a delegate seat, 
which is s,ignificant because the make-up of the candidate 
slate is indicative of the voting s,trength of a district's 
constituencies. Page 22 note 46, supra. It is also sig­
nificant, as the court's opinion reveals, that there are no 
present harriers to minority registration, party affiliation, 
or candidacy; no anti-single shot voting or equivalent 
requirement has boon employed; candidate slating has not 
been dominated by white voters; and there is no majority 
vote requirement in general elections. Some or all of 
these factors were usually present in pre-City of Mobile 
cases in which multi-member districts were invalidated or 
were expressed during Congress' consideration of the 
1982 amendments as a justification for their enactment. 
See, e.g., White, 412 U.S. at 623-624; Wallace v. House, 
515 F.2d 619, 623-624 (5th Cir. 1975), vacated and re­
manded on othe,r grounds, 425 U.S. 947 (1976); Zimmer, 
485 F.2d at 1305-1306; cf. Whitcomb v. Chavis, supra; 
Black Voters, 565 F.2d at 6; Bradas, 508 F.2d at 1112; 
Senate Report 10 n.22; House Report 31 n.105. The 
absence of such barriers to participation in the electoral 
process, coupled with the findings made by the court 
regarding the success that black candidates have had and 
the white voting support that these candidates have re~ 
ceived in House District 36 and Senate District 22, sup­
ports the conclusion that the multi-member system has 

when a different black candidate received 22% and 28% of the 
white vote in the primary and general election, respectively. In 
Senate District 22, the black member of the four-person delegation 
from 1975-1980 received 47% of the white votes in the 1978 
primary and 41% in the general election. A second black candidate 
(Polk) ran in 1982 and garnered 32% of the white vote in the 
primary and 33% in the general election. J.S . App. 42a. Moreover, 
while blacks form only 31% of the population of the city of Char­
lotte, a black Democratic candidate was elected mayor with 38% of 
the white vote against a white Republican. J.S. App. 35a. This 
figure is significant because it shows that in a head-to-head contest 
more than one-third of the white voters were willing to vote for a 
black candidate in Charlotte. Blacks also held 28.6% of the district 
and 16.7% of the at-large city counsel seats from 1977-1981. J.S. 
App. 34a. 



34 

not deprived blacks of the opportunity to participate in 
the electoral process in these two districts.. 62 

CONCLUSION 

The judgment of the district court should be reversed. 

Respectfully submitted. 

JULY 1985 

CHARLES FRIED 

Acting Solicitor General 

WM. BRADFORD REYNOLDS 
Assistant Attorney General 

CHARLES J. COOPER 
Deputy Assistant Attorney General 

PAUL J. LARKIN, JR. 
Assistant to the Solicitor General 

~2 Should the Court nonetheless conclude that there is an insuffi­
cient basis in the record for finding no violation of amended Section 
2 with respect to these two· districts, then, given the district court's 
reliance upon an incorrect legal standard, the appropriate disposition 
would be to remand the case to the district court for further pro­
ceedings under the correct legal standard. See Pullman-Standard v. 
Swint, 456 U.S. 273, 291-292 (1982). 

* U. S. GOVIRNM!NT PRINTING OFFICI; 1985 461531 10255 



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