Supplemental Brief for Appellees

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TABLE OF AUTHORITIES

Cases

Anderson v. City
u .s.

Bessemer City,
1985) ......... l5

of
(

Page

2

3rl5

9 ,17

l5

10

Brooks v. AlIain, No.83-1865
(1984) ... ......r............ 3rl5

HunEer v. Underwood, u.s.
(1985) .........:............... 2

Pullman-S[andard Co. v. Swint, 456
u.s. 273 (r98r) l4

Rogers v. Lodge, 458 U.S. 613
(1982) ... ..............

Strake v. Seamon, No. B3-1823
(1984) ... ..............

White v. Regester, 412 U.S. 755
il973)

'i'r'Jl',r' '.J1.,, ;r. ,

'..1,1"",t..r ,,.
l:F ilil,'
.1..',.i.1 '

.;,,'t ;1, .i.
'....rJ(.rr.

r: , il.iu'' 'ii
...,".1'1r'.'. ',1,, ,t'rr,.,. ,t

'.,,i

nitt v. Wainwright,
( ress) ...

Z immer v . McKe i t,hen ,
( 5th Cir. 1 973 )

u.s.
.aaaa

485 F.2d 1297

I-



Page

Statutes

Section 2 oE the Voting Rights Act of
1965r os anended , 12 U.S.C.
S 1973(b) o...."""""""o"" 2'7'8

l2r15r16r17

section 
?r;[ :::.::::::.::::::.:::. - . . 16,17

Other Authorities

RuIe 52, Federal Rules of Clvil
Procedure .........'o..o....""" 3'6

S. Rep. 97-417 (1982) ...........".." 9'10

ii

No. B3_t968

IN THE

SUPREME COURT OE THE UNITED STATES

OcEober Term, 199{ ,

== = ===r== =:=- =====-t===a==z8r===E

LACY H. THORNBURG, et aI.,

;;n,s,
v.

RALPH GINGLES, er al.,
-...TAppeIIees.

===========-=-====5===83--3-==aa-

On Appeal from t.he United States
District Court for the Eastern

District of ttorth Carolina

SUPPLEIIENTAL BRIEF FOR APPELLEES

Appellees submiE this glr-'rr emental

Brief ln response to the L, J by

the United States.



2-

The controlling question raised by

the brief of the United States concerns

the sbandard to be applied by this Court

in reviewing appeals which present

essentiatly factual issues. A section 2

act ion such as thits reguires the Erial

courE to determine whether

the poIiEical processes Ieading to
nominat.ion or election in the State
or Pol itical subdivision are not
equally open to Ff,rticipation by Ia
protected grouPl -

The presence or absence of such equal

opportunity, like the presence or absence

of a discriminatory motive, is a factual

ques t ion. See Hunter v. Underwood,

U.S. ('1985); Rogers v. Lodge,

458 U.S. 613 ( 1982) . CorrecEly recognizing

the factual naEure of Ehat issue, this

Court has on tr+o occasions during the

-3

present t,erm summarily affirmed appeals in
section 2 actions. Strake v. Seamon, No.

B3-1823 (Oct,. l, 1984); Brooks v. Allain1

No. 8 3- 1 865 ( Nov. 13, I 984) . If an

ordinary appeal presenting a disputed
question of fact is now to be t,reat.ed for
that reason alone as presenting a "sub-
stantial quesEionr" Ehen this case, and

almost all direct appeals to Ehls Court,

will have to be ser, for full briefing and

a rg urnen t . We urge , however , that to
routinely treat appeals regarding such

factual disputes as presenting substantiaL

questions would be inconsistent with Rule

52(al, Federal RuIes of Civil procedure,

and wi th the ef f icient management of t.his

CourE's docket.

The Sol i citor GeneraI,

ducted his own review of some
2

the record, advises the Court

ha. no con-

portions of

that, had he

42 U.S.C. S 1973(b).
The Solicitor Gent-,raI, understandably less



4-

been Ehe trial judge, he would have

decided porEions of the case differently'

The judges who acuually tried this case'

all of them Norbh Carolinians v'ith long

personal understanding of circumstances in

that, s tate r- concluded that blacks v'ere

deni.ed an equal opportunit'y to participaEe

in the polibical processes in six North

CaroI ina multi-member and one single

rnember Iegislative districts' The

Solicitor Generalr oo Ehe other hand' is

of the opinion thaL there is a lack of

-5
3

equal opportunity in 2 districts, that

"there may well be' a Iack of opportunity
4

in 2 other districts, but Lhat blacks in

Iact. enjoy equal opportunity to partici-

pate in the political

remaining districts.

General might come to

conclusions with regard

and racial reaL ities in

of North Carol ina.

process in the three
5

Other SoliciLors

s t ill d if ferent

to the polit.ical

various portions

familiar wiuh the details of this case
a[;; the triar court, makes a number of
inaccurate assertions about the record'
The government asserts, for example'
Jt.n.r6 is not the slightest sug,gestion"
tnaiLtacx candidafes $'ere elected because
;-hia"; considered them 'saf e" ' ( u 's ' Br '
18 n. 17). In fact t'here was uncontra-
iicued teitimony that only blacks who were

safe could be eiected. (Tr ' 625-26' 691 '
B;1, 

-857). 
The solicitor arso asserts'

incorrecciy, (U.S. Br' 17 n'14) that !h"
igBZ "f""cion 

was the only elecEion under
;;; t1." in question' rn facE' the
discricus have Seen the same since 1971'
(J.S. APP. 19a)

5---
' House District B and Senate oistrict 2i

U.S. Brief ,21 .

4 Hor"" District 36 and Senate District 22i
U.S. Brief. 20 n.10 The appendix Eo the
jurisdictional statement which contains
the District CourE's oPinion has a
typographical error sl-ating errotleously
that two black citizens have run "suc,:ess-
fully' for the Senate from Mecklenburg
County. The correct word is 'unsuccess-
fulIy". J.S. App. 34a.

tlouse Districts 21, 23 and 39; U.S. Brief
16.



6-

The government rs fact-bound and

statistic-laden brief, noEiceably devoid

of any reference to Rule 52, sets out all

of the evidence in this case which

support,ed the position of t'he def endants.

I t, om i ts , however, any ref erence t'o the

subsEant,ial evidence which was relied on

by t.he trial court in finding discrimina-

tion in the polit,ical Processes in each of
6

Ehe seven districts in controversy. The

SenaEe Report accompanying section 2

listed seven primary factual factors that

should be considered in a sect,ion 2 case

and t,he governmenE does not challenge the

findings in the district court's opinion

EhaE at least six of those factors

supporEed appellees' claims - On the

contrary, t,he government candidly acknowl-

edges "It]he district court here faith-

7-

f u11y cons ldered t.hese ob jecEive f actors,

and there is no claim that les findlngs

wlth respect to any of them rdere clearly
erroneous," (U.S. Br. l1).

The government apparent.ly cont,ends

t,hat, aII !he evidence of discrimination

and lnequality in the political procesa

was outwelghed r dt least as to House

DlstrlcEs 21 , 23 and 39, solely by the

fact that blacks actually won some

electlone in those multi-member dlstricts.
It urges

Judged simply on the basis of
r resul ts , I the multimember plans in
t,hese districts have apparently
enhanced not dilut.ed minority
st.rength. (U.S. Br. l6).

On Ehe governmentrs view, the only

"result" which a court may consider is the

number of blacks who won even the most

recent election. Section 2, however, does

not authorize a court to "judgIe] slmplyilr.o. App. 21a-52a.



B-

on the basis of [election] 'resultsri, but

requires a more penetrating inquiry into

alt evidence tending to demonstrate the

presence or absence of inequality of

opporEunity in Ehe political ,.o"."".'
Congreas itself expressly emphasized in

section 2 that, the rate at whlch minori-

t,ies had been elected was onlY 'one

circumstance which may be consr;"t";

' Ttre district court f ound, inter aI ia, that
' t.he use of racial appeals inGTecET-ons has
been widespread and persists to the
present, J.S. APP. 32ai the 'use of a
majority vote requirement "exisLs as a
continuing practical impediment to the
opportunity of black voting minorities" to
elect candidates of Eheir choice, J.S.
App. 30a; a substantial gap between black
and whiEe voter registration caused by
past intentional discrimination; extreme
racial polarization in voting patterns;
and a black electorate more impoverished
and less weII educated than the white
electorate and, therefore, less able to
part icipate effectively in the more
ixpensive mult i-member d i s tr i ct elect ions .

There was also substantial, uncontradicted
evidence bhat racial appeals were used in
the l982 Durham County congressional race
and the then naseent 1984 election for
U.S. Senate.

9-

(Emphasis added). The legislative history

of section 2 repeatedly makes clear Lhat

Congress intended L,hat, the courts were not

to at tach conclusive signif icance t.o the

fact that some minorities had won elec-
B

tions under a challenged plan.

The circumstances of t,his case i1lus-

tral-e the wisdom of Congress I decision to

require courLs to consider a wide range of

circumstances in assessing whebher blacks

are afforded equal opportunity to parLici-

pate in the political process. A number

S. Rep.97-411,29 n.115 ("Ehe election of
a few rninorit.y candidates does not
'necessarily foreclose the possibility of
dilut.ion of t.he black vote' , in violat ion
of t.his section") r D. 118. (nThe'failure
of plaintiff to establish any particular
fact.or is not rebuttal evidence of
non-dilution"). See also S. Rep. at 2,
'l 6 , 21 , 22, 27 , 29 , 33 and 34-35. The
floor debates are replete with similar
references. fn addition, see White v.
Regester , 412 U.S. 755 ( 19731 aFfETng
Craves v. Barnes, 343 F. Supp. 7OT;-fiC
rc 1912) (dilution present
alrhough record strows rL.pL-aLed election of
mrnority canclidates ) .



10

of the inst,ances ln whlch blacks had !{on

elections oeeurred only after the com-

mencement of this litigation, a circum-

stance which the trial court believed
9

Eainted their significance. In several

other elections the successful black
10

candidates vrere unopposed. In one example

relied on by the Solicitor in which a

black was elected in 1982, every one of

the 11 black candidaEes for at,-Iarge elec-

tions in that county in the previous four
11

years had beeri defea\ed. In assessing Ehe

political opportunities afforded Eo black

J.A. App. 37a. See a1so, S. ReP.aE 29
n. 1 1 5, citing Zimmer v. McKel!!e!, 485
F.2d'1297, tsomPost-
I itigation success is insignificant
because it'might be attribuEable to
politicalsupport motivated by different
considerations -- namely that election of
a black candidate will thwart successful
challenges to elecEoral schemes on
dilution grounds. " )

J.S. App.42ar 44a,

J.S. App.35ar 42a-43a.

9

10

1l

11

voters under those at-large systems, the

SoliciEor General evidently disagrees with

t'he comparative weight which t,he trial
courL gave to these election results and

to the countervailing evidence; the

assessment of that evidence, however, was

a matEer {or the [rial court.

The Solicitor General seeks, in the

alternative, to portray his disagreement

with the trial courtrg factual findings as

lnvolving some dispute of law. This he

does by the simple expedient of accusing

the disrrict court of eit,her dlssembling

or not knowing what it was doing. (U.S.

Briet 12) Thus, despice Ehe disbrlct
courErs repeated statements that sectlon 2

requ i res only an equal opportunit,y to
12

part icipat.e in t.he polit ical process, the

Sol icitor General insists that rt,he only

l2 ,:.s App. 12a, l5a, 29a n.23 r 52a.



12

explanation for the dist,rict court I s

concluslon is that, tt erroneously equated

the legal standard of Section 2 with one

o f g-u a re_g!S-gg. elecLoral success in

proportion to the black percentage of the

population.' (U.S. Brief 12, emphasis

original ). Elsewhere, the Solicltor,

although unable to ciue any such holding

by the Erial court, asserts bhat the court

mus t have been applying an unstated

'proport ional representation plus"

standard. (U.S. Brief 18 n.18). The

actual text of the district court opinion

eimply does not contain any of the legal

holdinge to which Ehe Solicitor indicates

he would object if they were some day

contained in some other decision.

The government does not' assert, that

the trial court rs factual finding of

racially polarized voting Yras erroneous,

or discuss the extensive evidence on which

- 13

thaE finding was based. Rather, the

government agserts [hat the trial courE,

aI though apparent.ly just,if ied in f inding

racially polarized vot.ing on the record in

this case, adopted an erroneous "defini-
tion" of racial bloc voting. (U.S. Br.

13). Nothing in the trial courtrs detailed

analys is of racial vot.ing patterns,

however, purports to set any mechanical

standard regarding what. degree and

frequency of racial polarizat.ion is

necessary to support. a section 2 elaim.

Nothing in that opinion supports the

government's assertion thaE t,he trial

court would have found racial polarization

whenever Iess t.hat 50t of white voters

voted for a black candidate. In this

case, over t,he course of some 53 elec-

tionsr. an average of over B1t of white

voters refused [o support. any black

candidate. (J.S. App. 40a). Prior to t.his



14

I lt igat lon t.here were almost no elect'ions

in which a black candidate got vot,es from

as many as one-third of t'he white voEers.

(J.S. App. 41a-46a). In t,he five elec-

t lons where a black candidat,e was unop-

posed, a majoritY of whites were so

determined not to support a black t'hat

t,hey voted for no one rat'her than vote for

the black candidate. (J.S. ApP.4{a} .

tlh ile Ehe IeveI' of white resist,ance to

black candidates was in other instances

less extreme, the trial court was cer-

tainly justlfied in concludlng that' there

was racial polarization, and Ehe Solici-

tor General does noE assert ot'herwise.

The Solicitor General urges this

Court to note probable jurisdiction so

that, laying aside the policy of appellate

sel f-rest raint announced in Pullman-

1!.andard v. Swint, 456 U.S.

and its prog€nY, the Court can

273 ( 1981 ),

embark uPon

15

its own inquiry into Ehe diverse nuances

of racial politics in Cabarrus, Forsyth,

Wake, Wilson, Edgecombe, Nash, Durham,

and Mecklenburg counties. Twice within

the last month, however, this Court has

emphat ica I Iy admonished the courts of

appeals against such undertakings.

Anderson v. City of Bessemer CitY,

u.s. (198s)r @, 
-U . S. ( 1 985 ) . Twice in the Present

terrn th is Court has summarily af f irmed

similar fact-bound appeals from district

court decisions rejecting section 2

claims. Starke v. Seamon, No. 83-1823

(OctobeE 1, l984); Brooks v. Allain, No.

83- 1865 (Nov. 13, 1984). No different

standard of review should be applied here

merely because in this secEion 2 case the

preva i I ing party happened to be the

plaintiffs.



15

Appellees ln this case did not seek,

and the trtal court did not require, any

guarantee of ProporEional representat,ion.

Nor did proportional rePresentaLion result

f rom that, court I s order. Prior to t,his

fiuigat,ion only 4 of the l70 members of

the NorEh Carolina tegislature tdere black;

today there are still onlY 1 5 black

riembers, less than 10t r a f ar smaller

proport,ion than the 22.4t of the popula-

Eion who are black. WhiLes, who are 75.8t

of the staLe populaLion, stilt hold more

than 90t of the seata in the legislature.

In the past bhis Court has frequently

deferred to t,he views of the Attorney

General with regard t,o t,he interpretat,ion

of section 5 of Ehe Vot,ing Rights AcE. No

such deference is warranted with respect

t.o section 2. AIEhough Ehe DeparEmenE of

Just ice tn I 965 drafEed and strongly

)upport,ed enactment of section 5, the

17

Department in 1981 and 1992 led t,he

opposition to the amendment of section 2,

acqu iescing in t.he adopEion of Ehat

provis ion only after congressional

approval was unavoidable. The Attorney

GeneraI, although directly responsible for
the administrat,ion of section 5, has no

similar role in the enforcement of sect.lon

2. Where, as where, a voting rights claim

turns primarily on a factual disput,e, the

decisions of this Court require that
deference be paid to the judge or judges

who heard [he case, noE to a Justice
Department official, however well inten-
tioned, who may have read some portion of
the record. @, A12 U.S.

755, 769 (1973). The views of the

Depa rtment are entitled t,o even Iess

weight whenr os in this case, the Solici-
tor's present clairn that at-large dis-
tricts "enhance" the interests of minority



18 -

voters in Nort,h Carollna represents a

complete reversal of the 1981 position of

t,he C iv i I Rights Div ision Ehat such

district,s in North Carolina'necessarily

submerge [ ] cognizable minority population

concentrations into larger white elec-

torates.' ( Section 5 objection letter'

Nov. 30, 1981, J.S. APP. 5a)'

CONCLUSION

t'or t,he above reason, t'he judgmenE of

t,he di.strict' court should be summarily

aff irmed.

RespectfuIlY submitted,

LANI GUINIER*
NAACP Legal Defense and

Educational Fund, Inc.
99 Hudson Street
1 5th Floor
New York, New York 10013
(2121 219-1900

- 19

LESLIE J. WINNER
Ferguson, Watt, WaIlas

and Adkins, P.A.
951 South Independence Blvd.

Charlotte, ttorth Carolina 28202

Altorneys for Appellees

*Counsel of Record