Motion for Leave to File Brief and Brief for Common Cause as Amicus Curiae

    I
t
:

No.8&1968

In Tm
Sry"orr Omrt d tlP lfuritPil *tfits

OcrosnB TEBM, 1986

Iac"r E. Txonmtrnc, etol,
Appellotts,

v.

Bans Gntctrs, et al,
Appcllaw.

On Appcal fron the United Stat€s Dbtrict Court for
thc Eantam Dlstrict of North Carolha

BRIEF TOR CODIMON CAUSE AS AMICUS CI'BIAE

Wulrl,u T. Lnro
Counsel, of Eecmd

A.DBIENNE MASIrRS

fln.rrrB Crm.EB & PlcrrrntrIlc
1666 K Street, N.W.
Washiugtou, D.C.20006
(202\ 8724oo0

Couuelfor Amicw Cwiar
CunmonCotnc

Aunrst 30, 1986



TABLE OIT CONTENTS

TABLE OF AUI'ITOIIITiIIS

MOTION FOR LEAVII TO FILD BIIIIIF

INTDREST OF TI'IE AMICUS AND SUMMARY OF
ARGUMENT

I. TIIE 1982 AMENDMENT TO'IIIII VOTING
RIGIITS ACT EXPRESSED CONGRESS' IN-
TITNT TO REMDDY DII,UTION OF RACIAL
MINORITY VOTING STRENGTH CAUSED
BY TIIE CONTINUING EFFECTS OF PAST
DISCRIMINATION

SECTION TWO'S ASSURANCE OF EQUAL
,.OPPORTUNITY'' FON RACIAL MINORI-
TIDS TO "DLECT REPRESENTATIVES OF
TIIDIR CHOICE" REQUIRES CONSIDERA-
TION OF A GROUP'S DIRECT VOTING
STRENGTII AND OF TTS ABILITY TO PAR-
TICIPATE EFFECTIVELY IN COALITION
POLITICS

A. Section Two Is Designed to Plotect the Vot-
ing Strength of Minorities as a Gronp.-.._.--

B. The Factors Identified in the Legistative IIis-
tory Address the Ability of Racial Minorities
to Exercise Direct Voting Strength and to
Iluild Coalitions to Influence Elections in the
Absence of Numerieal Majorities .-.-._._--..-,.--_

TIIE I,AWFUI,NESS OF ,A. CIIALLENGED
PRACTICE SI{OUI,D BE DETDRMINED ON
TIIE BASIS OF ITS IMPLICATIONS FOR
THESE TWO MEANS OF INFLUENCTNG
ELECTORAI, OUTCOMES ..-.... -. ..

Page

llt

vii

1

II.

III.

t3

(l)



tl

TABLII OF CONTENTS-Continuerl

A Singte-Member Districting Scheme That

"Fractureg" or "Packs" n Racial Group's

Direct Voting Strength Should Be Unlawful
Unless Other Factors Indicate That the Group

Can l'articipate Effectively in the Coalition-

Building rProcesg

Multimember Districts That Subsume Large

Minority Populations Dilute the Direct Vot-

ing Power of Such Grottps and Should Be

Closely Scrutinized

l. Multlmember f)istricts Inhelently Dilute
the Direct Votlng Strength of Minorities"

Page

A.

l3

B.

l8

l8

2. The Need for Proof of Racial Polarization
or Other Factors Impairing a Minority's
Ability to Build Coalitions Should Be

Less Where Concetrtrations of Minority
Voters are Subsumed in Multimember
Districts

IV. APPLYING THESE PRINCIPLES, TIIE
COUNT SIIOULD AFFIRM THD JUDGMENT
BEI,OW

CoNCLUSION ...........--

oo

23

28

)

fil

TABLE OF AIJTTIONIIIES
CASES: Page

Burns a. Richartlson,SS4 U.S. ?3 (1966) 14

Chapman o. Meier,420 U.S. I (19?6) 20

CitU of Mobile o. Bolilen,446 U.S. 66 ( 1980) "--4, 16,19,22

Citu ol Rome rt. llnited States, 446 U'S. 166

(1980) 10,21

Connor a. Fittch,4St U.S. 407 (19771 ------"-"--"""' 19,20

Doac o. Moore,639 F.zd 1162 (8th Cir. 1976)-----.'- 22

Fortsona. Dorsev, S?9 U.S. 433 (1966) l9
Gofrney o. Cummings,4l2 U.S. ?Bb (f973) 8

Gomillion u. Lishtfoot 364 U.S. SSg (1960) - '---- 14

lamee a. CitU of Sarasota, No. 79-103l-Civ-T-GC
(D.C. Fla. Jan. 26, 1986) .

Jones 0. City of Lubbock,727 F.zd 364 (6th Cir.
1984) .6, 12, 19

I(archer a. Daggett,462 U.S. 726 (1983) 8

Ketchu.m o. Byrne, ?40 F.zd 1398 (7[h Cir. 1984),
aert. deniecl sub nom. CitU Cou.ncil u. Ketchum,
106 S. Ct. 26?3 (1986) - - 10, 16

Kirksey a. Boaril of Superaisots, 664 F.2d 139 (6th
Cir.), cert. ilenied,434 U.S. 968 (1977) -----------12,16, 16

Lee County Branch ol NAACP a. Cita of Opelilca,

?48 F.2d r4?3 (rlth Ctr. 1984) 12

Illajor a. Treen,6?4 F. Supp. 826 (E.D. La. f gm) -- 6, 16

. Mcll[ittan a. Escambin County,748 F.zd 1037 (6th
Cir. 1984) ?' 16

NAACP, Inc. o. City of Statesaille,606 F. Supp.
669 (W.D.N.C. 1986) 22

NAACP a. Gadsden Cotmty School Boatil,69l F.zd
978 (llth Cir. 1982) 17

Perkins o. Citu ol West Helena,676 F.zd 201 (8th
Cir.l, aff'd,469 U.S. 801 (1982) 16

Reynolils o. Sirns, S?? U.S. 633 (1964) 8

Robinson a. Commissianers Court, 606 F.zd 674
(6th Cir. 19?4) ..-. ..- t4

Rogers a. Loilge,468 U.S. 613 (1982) ...-.-.--.--12,16, 19, 21

IJnitcil Statee o. Dallns County Commission, 739
F.zd 1629 (llth Cir. 1984) ......... 7

Itniteil States a. Marengo Cou.nty Commission, TSl
F.zd 1646 (llth Cir.), cert. denied., 106 S. Ct.
3?6 (1984) ---Paasirn

22



lv

TABLE Otr' AUTIIORITIES-Continued
Page

Wallnce t. House,6t6 F.zd 619 (6th Cir. 19?6),
oacated on other grountls,426 U.S. 947 (f976) .. 20

lVeeley a. Collins,606 F. Supp. 802 (M,D. Tenn.
1986) _....... 8,23

lVhitconrb a. Chouis,403 U.S. 124 (f97f ) ---.---.--.---. 14,19
White a, Regester, 412 U.S. 766 (f973) .......-.-.-...-.-.possinr
Zimmer o. Mclkithen, 486 F.zd 1297 (6th Cir.

1973), aff'd. on other grou.nds sub nom. Dost
Canoll Pafish School Boaxl u. ilIarshall, 424
U.S. 636 (19?6) ...-....-....passim

STATUTEST 
i

Pub. L. 97-206 $ 3, 06 Stat. l3l, 134 (1982) (codi-
lied at 42 U.S.C. $ 1973(b) (f982)1, ameucling

42 U.S.C. $ 1973(b) (1982) ............6, 7,17,18

LEGISLATIVE MATERIALS :

II.R. Rep. 227,97th Cong., lst Sess. (1981) ... 6,6, 10-20
S. Rep. No. 417, 97th Cong., 2d Sess. (1982) ..........passim

PERIODICALS:

lloward and lloward, The Dilemma of the VotinO
Rillhts Act-Recoglnizittg the Emerging Politi-
cal Eqtnlity Nonn, 83 Colum. L. Rev. 1616
(1983) :_...__....-.-...... 2t

Berry & Dye, T'h,e Discriminatory Effects ol At-
Large Electiotts, T F'la. St. L. Rev. 86 (f979)....-- l8

Bonapfel, llinofity Challenges to At-Lary1e Dlec-
tions: The Diltfiion Problem,l0 Ga. L. Rev. 363
(1976) .......... 19, 2l

Ilnrtman, Racial Vote Dihfiion and Separation of
Pouers: An Erploration of tlte Conflict Be-
tween the Julicial "Intent" and the Legislntiae
"Results" Stanilat'ds,60 Geo. Wash. L. Rev. G89
(1982) 8, 16

v

TABLE OF AUTIIORITf ES-Continuetl
Page

Clinton, Further Drplorations ht tha Politicql
Thi,cket: Tlte Gen'ymander and the Constitntion,
69 Iowa L. Rev. f (1073) 14

Carpeneti, Legisbtiae Apportionment: tltdti-
member Districts ancl Fair Representation, 120
U. Pa. L. Rev.666 (1972) 19

Parker, The"Results" Test of Section 2 of the Vot-
ing Rights Act: Abaniloning the Intent Staud-
ard,69 Va. f,. Rev. 716 (1983) ...

I)erfner, Racial Discrimination and. the Risht to
Vota,26 Vand. L. Rev. 623 (f973) .. 2l

Note, ?he Consti,ttttiorml Significance of the Dis-
criminatory Effeats ol At-Large Elections, 9l
Yale L.J. 974 (1982) .-.16-16,21

Note, Geometry and, Geogra,phy: Racial Gerry-
mandering and the Voting Rights Act, 94 Yale
L.J. 189 (1984) .....-..6,8,16,17

BOOKS AND MISCELI,ANEOUS AUTIIORITIES:
Avila, Mobile Euidentiary Analysis, in The Risltt

to Vote (Rockefeller Foundation Conf. Rep.
1e8r) ..--....

R. Dahl, Who Goaeras? (19?4)
f)avidson, Minority Vote Dilution, in Llinority Vote

Dilution (t984)
R. Dixon, Demoaatie Eepresentatioz (1968) . -.---
E. Lakeman, Iloto Democracies Vote (1974)....-.--
R. Morrill, Political Reilistricting and GeograTthic

Themlt (1981)
Pnrker, Racial Gerrllmanclering and, Legislatiae

Reapportiortmcnt, in Minority Vote Dil,ution
(re84)

Still, Allerrrutiaes to Sin{rle-Mernber Districts, in
Minority Vote Dihrtion (1984)

l8
10

2l
2l
2l

t4

t4

16



b

Iu Tnn

$utrrremr Orrrrt trf tlp lllnitrh $tutrs
' OcronpnTpnu,1985

No. 83-1968

Llcv II. Tuottrnunc, et al.,

v. Appellants,

Relrtt GtNclns, et al.,
Appellees.

On Appeal from the Unlted States Dlslrlct Court for
the Eastern Dlstrlct of North Carollna

MOTION FOR LEAVE TO FILE BRIEF FOR
COMMON CAUSE AS AMICUS CUNIAE

Pursuant to Rule 42 of the Rules of this Court, Com-
mon Cause here,by moves this Court for leave to file a
brief as amicus curiae in this case. Counsel for Appellees
has consented to the filing of the attached brief, by a let-
ter that has been flled with the Clerk of the Court. The
consent of eounsel for Appellants \ryas requested but
lefused.

As set forth in the attached brief aL l-2, Common
Cause has a strong interest in the disposition of this ap-

(vli)



viil

pealandbelievesthatitsper.spectivediffersfr'omthatof
any party. This motion and the attached brief are timely

hf"a'in iccordance with Rule 36.3 of the Rules of this

Court.
RespectfullY submitted,

Wtu,tlu T. Lnxu
Wlrunn, Cutmn & Ptcrnntnc
1666 K Street, N.W.
Washington, D.C.20006
(202) 8?2-6000

Counsel of Record.

lor Amirr.w Cu,r'iae
CotnmonCause

August 30, 1986

IN THS

$uprl'ttrr QJrrurI rrf llp llhritrr\ Stutrrr
Ocronnn Tonu, 1085

No.83-1968

Lecv II. Trtonnnunc, et al.,
Appellants,

v.

Rar,prr GINGr,e.s, et al.,
Appellees.

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

BNIEF FON COMMON CAUSE AS AMICUS CUNIAE

INTIIREST OF TIID AMICUS
AND SUI}IMARY OF ARGUMENT

Common Cause is a nonpartisan organization with
260,000 members, a central purpose of which is to fur-
ther resllonsible and honest gover.nment, accountable in
practice as well as in theory to the voter.s who elect it.
Common Cause has participated actively in litigation seek-
ing to protect the integrity of the eleetoral process. It
believes that this case involves extraordinary stakes both
for minority voters, who have historically been denied an
equal opportunity to participate in that process, and for



2

democratie institutions generally, which can be truly

;;;r;;;';ai- onlv if all citi-zens have equal electoral oppor-

tunity. Therefore, Co**on Cause submits this brief as

;;i;'r iilo, urging affirmance of the rlecision below'

Common Cause seeks to provide the Court with a per-

.fr"""i'i*'on tt,i, titig"tion ihat differs from tha' of any

party. In the interLt of ensuring mol'e reasoned and

irt.ii.t"Ui" identifieation of violations of Section 2 of the

ir;tiil night, Act, it' attempts herein to develop a frame-

Wrrilif,riwill airl the Court in appreciating the-inter-

reiationships between and the significance of the factors

i,i"ntin"a in ttr* Senate Repolt on the 1982 amendment to

that Act.

Section 2 embotlies Congress' determinat'ion to com-

p.;;;-i"i il,. ai.iri.t,*."nt of the votlng strength. of

raoial minorities ""*a by prior intentional discrimi-

nation. To that .nJ, it pi'otiiUitt not merely electoral

schemes that bar racial minorities from the political proc-

*t, frrt also plans ilrat dilut'e the group voting :lT5t:
oi" *irority. Such dilution occurs whenever an electoral

,yri". denies a racial mino'ity an oppot'tunity, propor-

iion"t" to its share of t'he poputation, to elect' representa-

iiu", of its choice. Electoraf Euceess can be achievetl in

two different ways, and it is these two avenues for in-

h;;r;i;g electoral outcomes to which the Senate Report

factors are addressetl.

Thefirstovenueisaracialgrottp'sexerciseofitsdi-
lect voting strength-its ability, which increases with its

share of ihe population, to influenee elector.al outcomes

.-g"tai*t of ine votes of other groups' An important

g;irge of impairment of a minority's direct voting

itreigttr is whether concentrations of minority vo[ers

h.u."bu.nmanipulatedtodilutetheimpactoftheirvotes.
Su.t manipulation can take the form of "fracturing" or

"[""f.inS" in the context of single-member rlistricts' or

"rn ,"o-ult from subsuming conceiltrations of minority

voterc into multimember districts'

The second avenue to electoral success is coalition-

builtling: A racial group thai lacks a majority in an-

electoral rlistrict ma! combine its stlcng[h with [hat' of

otlr., grorps to form coalitions capable of electing can-

dirlates of the groulls' mutual choice' Impairment of a
r'".irt group's 

"nitity 
to engage in coalition politics can

tre discernetl mos[ cliarly from the presence of lacial bloc

voting. Other indicia can include race-basetl electoral ap-

puals] socioeconomic deprivation in the minority commu-

nity,'"nd underrepres"ntotion of minority-backed candi-

rlaies in electal positions. The less.direct voting strength

a minority has, the more Eucceasful it must be in align-

ing itself with other voting hlocs to influence elections'

The showing required of a plainl'iff under Section 2

shouldrelatetott,eu|timateissuewhetlrerthechallenged
ptactice, consideretl in context, impairs a racial group's

abilitytopttt.suethesealternativoavenuestoelectoral
,o.."*r. In the case of single-member districts, dilution of

theminor.ity,sdirectvotingstr.engththroughfracturing
oi-prct ing normally should violate section 2 where r.acial

bloc votirrg or other factors indicate that the minor.ity,s

abilitytoengageincoalitionpoliticsalsoisimpaired.

Multimember districts inherently dilute a minority's

direct voting strength-an effect that is greatesi where

suchadistrictsttbsumesaminorityconcentlationsuf-
ficienttobeamajorityinasingle-memberdistrict.This
dilutive effect warrants close serutiny to ensttre that

the ability of minorities to build coalitions is not also

diminisherl. In sueh L situation, any mole than de

minimisracialblocvotingnormallyshouldbesufficient
to trigger a Seetion 2 violation.

Under these stantlards, the findings below amply jus-

tify the trial court,s conclusion bhat the plactices chal-

lenged here violate Section 2.



4

ANGUMENT

I. THD 1982 AMENDMENT TO TIIE VOTING RIGTITS

ACT EXPNESSED CONGNESS' INI'ENT 1'O ItIiM-
EDY DII,UTION OF NACIAI, MINOITII'Y VOTING
STRENGTTI CAUSED RY TIIE CONTINUIN(;
EFFECTS OI' PAST PISCRIMINAT'ION.

When Congress in the 1982 Voting Rights Act Exten-
sion ("the 1982 Act") extended the effectiveness of See-

tion 2 of the Voting Rights Act,r it also changetl that
section. Congt'ess rejected the implications of the Cottt't's
plurality opinion in City ol Mobile u. Bolden,' which

bong"..* viewed as radically altering the eonstitutional
stantlard for vote rlilution cases on which Section 2 orig-
inally had been premised'' The Senate Report accom-

pnnying the 1982 Act explains that, prior to Boltlen' Lhe

Court harl held that proof of discriminatory intent was

not neeessary in n vote dilution ease.' The plurality in
Bolilen had ovenuled that position, concluding that the

Constitution forbids only intentional dilution of a raeial
minority's voting powerJ In response, Congress amentled

Section 2 to provide that a violation of the Act is estab-

lished

"if, based on the totality of circnmstances, it is
shown that the political processes leading to nomina-
tion or election in the State or political subdivision
ale not equalty open to participation by members of
a [racial 

-minority] in that its members have
less opportunity than othet'members of the electot'ate

I Pub. L. 9?-206 $ 8, 96 Stat. l8l, 134 (1082) (codilied at 42

U.S.C. $ lg?S(lr) (1982) l, ameadins Pub. L. 89-110, ?9 Stat' 487

( te66).
2 446 U.S. 66 (1980).

s S. ReD. No. 4!7, $?th Cong',2d Sess. l0 (1982)'

a Id. at24-26.
6 Id.. at 24. The plurality further fountl tlrat Section 2 of the

votlng Rishts Act was coextenalve with the constitution in this

respect. City of tllobile o. Bolden,446 U'S. at 60-61'

5

to participate in the political process and to elect
representatives of their cltoice."'

Congress thus removed any doubt that Section 2 is in-
tended to prohibit rliseriminatory results as well as dis-
o'iminatory intent.?

Congress viewed this amendrnent as essential to
achieving its primary goal, which was to compensate fot'
the diminishing effect of prior purposeful disclimination
on the voting strength of racial minorities.* Because

"voting praetices and proeedures that have discrimina-
tory results perpetuate the effects of past put'poseful dis-
crimination," " Congress found it necessary to go beyond
prohibiting intentional discrimination in ortler best to
redress the eontinuing effect of prior wrongs. Section 2
as amended seeks to eradicate any vestiges of prior dis-
crimination still reflected in current electoral struetures.
Therefore, a plaintiff seelring to establish a violation does

c 42 U.S.C. $ 19?8(b) (f982). Congress further prescribetl that:
"The ertent to whlch members of a protected class have been elected
to ofllce ln the Statc or politlcal subdivision is one circutnstance
whlch may be consldered: Provlded, That nothing in this section
establishes a rlght to hnve members of t protected class elected in
numbers equal to thclr proportlon ln the populntlon." Id.

r "Plaintlffs must either prove such [discrlnrinttory l intent, ot'
nlternatively, muoi show that the challenged systenr ot' practice, in
the context of all the cltcumstances in the jurisdiction in qtlestion,
reeults ln minoritles belng tlenletl equal nccess to tlre political
process." S. Rep. No. 4l?, stpro note 3, at 27; sce also id. at.2, lO,
40; tI.R. Rep. No.227,97th Cong., lst Sess.2,3f (1082).

8 See Jones o. City ol Lubboak, '127 F.Ztl 364, 374-75 (6th Cir.
1984); Major o. Treen, 674 F. Supp. 325, 343 (E.l). La. 1$83).
Indeed, the Senate Report explalns that this rctnedinl goal also
was the prime motlvatlon behlnd the original passage of the Voting
Rlghts Act of 1066. S. Rep. No. 417, supra note 3, at 6 (quoting
statement of Sen. Jacob Javlts, lll Cong. Rec. 8205 (1965)).

e S. Rep. No. 41?, supro note 3, at 40; sec II.R. Rep. No. 227,

eupta note ?, at 81. Congress also noted the difficttlty of proving
lntentional discrlmlnatlon. I{.I1. Rep. No.227, snpra at 3l; S. Rep.

No. aU, supro at, 10, 40.



6

not have to show that the adoption of the challengerl

practice itself causerl the dilution of voting strength't"

The practice is unlawful if it contributes to the perpettt-

ation of that dilution.

The legislative history indicates that Congress wished

to incorpirate into the statute the pre-Bolden easelaw to

guide courts in identifying Section 2 violations'" That

faselaw had applied a "totality of eircumstances" test

that took into account a number. of factot's relevant to

the nature of the challenged practice and the context' in

which it operatetl.re The legislative history maltes clear,

however, that there is "no requirement that any par-

ticular number of factors be proved, or that a majority
of them point one way or the other,"to antl t'ecognizes

that certain faetors may be more relevant thatr others in

tosce gcnerotty Note, Geometrg and Geography: Rttciol Get'ry-

manilering anil the Voting Rights Act, !4 Yule L'J' 189, 200-01

(1e84).

rrSec S. Rep. No. 417, suyro note 8, at 82; aee olso dd' at 16;

II.R. Rep. No. 22?, szptc note 7, at 29-80.

t! As nn interpretlve ald, the'sennte Report enumerntes a number

of typical objectlve factors, largety ldentlfled in lVhite o' Regestu:r"

412 iJ.S. ?66 (19?s), and Zhnmer a. McKeithen,'186 F'2d 129?

(6th Cir. 19?3) (en bnnc), ofi'd.. on othet gtountls s{b nom' East

ioroll Po,rish School Boartl o. Mot'shall,424 U'S' 636 (19?6)' to

gulde courts ln analyzing the discrimlnatory nature of an electlon

system. Thosc factors lnctude: a hlstory of offfdal dlscrlmlnation

agalnst minority voters; the presence of racial polarizatlon or

ricial appeats in elections; excluslon of the minorlty from any

cnntlidnteslating pt'ocess; creation of unusttally lurge elcction dls-

trlcts; adoptlon of majority vote requirements, nnti-eingleshot

p..*itinnt, or other simltar restrictlons; socioeconomic deprivatlon

in the minorlty communlty resulting from past discrimlnatlon; nntl

rtntlerrepr.r,rulntlon of tire mlnorlty omong elected ofllclals' In

arldition, the Report notes that a tack of rtlsponsiveness by elected

olficialstotheneettsofthemlnorityorrelianceonatenuouspolicy
uojustifytheStute,euoeofthechatlengedpracticemoyhavesome
protratir" value. S. Rep. No' 417, sttpla note 3' at 28-29'

tt Id. at 29'

t.

e particular context.tt In addition, "Iw]hile these enu-

merated factors will often be the most relevant ones,

in some cases other fac[ors will be indicative of the al-
leged dilution." 16

II. SECTION TWO'S ASSUNANCE OII EQUAI, "O['-
I'ORTUNITY'' FON NACIAL MINORI'I'IDS TO
"EI,ECT NEPRESENTA'TIVES OT T}IEIIT CTIOICB"
REQUINES CONSIDENATION OF A GROUP'S
DINECT VOTING STNENGTTI AND OF ITS AIIIL-
ITY TO PANTICIPATE EIi'FECTIVEI,Y IN COAI,I.
TION POLITICS.

A. Sectlon Two Is Deslgned to l'rotect the Votlng
Strength of Mlnorltles Ba & GrouP.

Appellants and the United States suggest that Section
2 ereates a right only to the "oppot'tunity to meaning-
fully participate in the political process." r{r They con-
cludo that the statute protects only "equal access" to
elec[ion machinery.t? That assertion, root€d in the notion
of individual access to the polling booth, ignores Section
2's additional guarantee to minorities of the "opportunity
. . . to elect candidates of their choice"'8 and disregards
the group nature of voting rights as recognizerl by this
Court and by Congress.

The power to elect representatives is by its nature a
group power, sinee no individual voter can achieve his
or her objective unless joined by others supporting the

rr ltl.
16 ltl.l see, e.9., tlcllillan rs. Escombia County, ?48 lr.2d 1037,

1043 (6th CIr. 1084) ; United States o. Dallas Cormty Conr.mission,
?30 F.zd 1629, 1684 n.2 (llth Clr. 1$84).

10 Brief for Appellants at lG; see Brief for United States at 14.

rTSee Brlef for Appellantr at l8; Brief for Unitetl States ut
l4-16.

t8 U.S.C. $ f S73 (lr) (f 982) i sce supro text at note 6.



8

6ame canclidates.to voting rights can, of course, be

"Uiiag.a 
by rules that prevent individuals from exercis-

irg t-n" frinehise. nui they ean be abridged also ty
ele"ctoral scSemes that, in piactice, dilute the collective

*"igf,t gi"en to the votes of members of a disfavored

g,"ip. ihe Court has long recognized this group nature

if uoting rights, noting ii Reynottts- a' Sims that "feder-

,ffv pr"i..tet tvotingl-righttsl sulfer[] substantial dilu-

tion'. . . Iwhere "l favored gl'oup has full voting

rl."rgttt . . . tanO tlhe groups not in favor have their

votes discottnted."'o

Congress in amending Section 2 made evident its

"or.ut'"r', 
about the diminution of the group voting

strength of racial minorities. As the Senate Report ex-

pi"inia, "discriminatory election systems ' ' ' lthatl min-

imize or eancel out the voting strength and political effec-

tiveness of minority groups, are an impet'missible denial

of tn" right to havi one'J vote fully count, just as mttch

as outright tlenial of access to the ballot box'" *'

It is precisely this concept of dilution of group voting

strength that under.lay the trial court's characterization

ro See llartman, Raciul Vote Dihttion' ancl Seporation ol Pouters:-

An E',plotation otl the Conflict Betutecn the Jutlicial "Intent" ond

thc Logistotiue "Results" Stondard's, 60 Geo' Wash''L' Rev' 680'

601 (1982) ; Note, snplc note 10, at 108.

'?oB?? U.S.633,666 n.29 (1964). The Court has used a group-

oriented focus whetr atljurlicatlng clalms of malnpportionment and

gerrymandering. See, e.g., Kotchet o. Daggett, 462 U'S' 725' '144

<fg8Sl (Stevene, J', concurrlnS\l id. at ?66 (Whlte, J'' dissent-

ing);'id. at ?84 (Powell, J., dissentlns); Gafinev o' Cummings'

4lt U.S. ?36, ?61, ?64 (rg?s) i Wh,ite o. Resestet, 412 U'S' 765'

766-?0 (10?3).

erS.Rep.No.4l?,suptonote3,at28;seealsodd'at80n'120;
llnitetl Stotes a. Marengo County Cotnmission, ?31 F'zd 1646' 1666

ifrtt Ci..), cet't. denied., 106 S. Ct. 3?6 (1984) i llesleu o' Collins'

dOf f. Supp. 802, 80?-08 (M.D. Tenn' lC86) ; Parker, The "Results"

iest ol i"rt;on 2 ol the. Voting Rights Act: Abandoning the In-

tent Sioutard,6D Va. L. Rev' ?16, ?61-68 (f 983) '

I
of the appropriate inquiry under Section 2-whether ''a
racial minority is effectively denied the political
power . . . that numbers alone would ptesttmptively - . .

give it in a voting constituency not racially polarized in
its voting beltavior." " Appellants incorrectly chat'actet'-
ize this "definition" as one that guarantees the outeome

of the political process rather than the opportunity to
participate in that process.*' To the contlary, the trial
court's formulation tloes not guaran[ee electoral ottt-
eomes, but properly seeks to discern, from objective fac-
tors, whether minorities have an equal opportunity to
participate in the electoral process and to elect candi-
dates of their choice.

ll. The l'actors ldentlfted ln the l,egislative llistory
Address the Ablllty of Raclal Minorltles to Exer-
clse Dlrect Votlng Strength nnd to llrrild Coolltions
to Influence Elections ln the Absence of Numerlcal
MaJorltles.

The factors identified in the Senate Report, are best
considered in an analytical framework that illuminates
their relevance to establishing a Section 2 violation. Ilele-
tofore, courts have examined these factors somewhat
mechanically, without, identifying the principles that
underlay Congress' inclusion of them as relevant to the
statutoly inquiry. While the importance of each factor
depends on the circumstances of the case, Congress en-
dorsed the factors together as vehicles for assessing
whether a raeial group has an opportunity to elect rep-
resentatives of its choice commensurate with its demo-
graphic strength.'zr The opportunity of a group to influence

zDlst. Ct. Op.,690 tr. Supp.346,366 (E.D.N.C. lS84), repriated
da Jurlsdictlonal Statement (J.S.) at l4a.

It Brief for Appellants at 10-20.

2{ Glven the dillerent sizes of racial groups, "equal" electoral
opportunlty necessarily means opportunity commensurate rvith a
group's voting strength, Thls does not mean commensurate rep-
resentatlon, bu[ rather commensurate ability to affect electoral
outcomes. See infro text at notes 42-48.



tr0

electotat outcomes arises through two ttvenues, trnd it is
to lhese two sources of electoral suecess that the factors

listecl in the Senate Report are addressed'

Firsb and fot'emost, a racial group has a capacity'

which inereases with its share of the voting age popula-

tion, directly to aftect eleetoral outeomes by virtue of its
own'solidarity.'n A group that constitutes a majority in

a district has ttre capacity directly to determine an elee-

tion, without t'egard to the votes cast by other groups'

Such direct voting stt'ength, however, can be diluted by

eleetoral stnrctures and practices that intentionally or

inatlvertently atlvantage some racial groups over others'

Second, if a racial group lacks the numerieal strength

tlirectly to decide an election, it may nonetheless com-

bine its strength with that of other groups to build more

or less formal coalitions capable of electing candidates of
the groups' mutual choiee.* The greater a gl'dup's nu-

meri-cal strength, the less it must rely on aligning itself
with other minorit'ies in ot'der to influenee electoral out-

comes. llere too, however, the electoral strueture and

the political and social context in which it operates can

reduce the ability of a racial minority effectively to build
such coalitioris.

Several of the factors identified in the Senate Report

ars aimed at the first eonsideration-direct voting
strength. A state's use of practices sueh as unusually
large election tlistricts antl anti-singleshot provisions is

26 A group's share of Lll.e total population of a dlstrict ls not an

accurqte meflsure of its ability to lnfluence electoral outcomes. This
Court and tower federal courts have recognized that, because cer-

tain minority groups have a generally youngcr population nnd hencg

a smaller proportion of eligible voters, raw population figures may

overestimute their voting strcngth. See, e'g', CitU ol Rome a'

Ilniteit Stotcs,446 U.S. 166, 186 n.22 (1980) ; KeCchttnt' rt' Ilvtne'
?40 F.2d 1398, l4l2-18 (?th Cir. 1984\, cett' ilcnied sub'nom' Citv
Council a.I{etchun,106 S. Ct. 2678 (1986) '

:ro R. Daht, Who Gooernst 249-60 (f 074) '

l1

likely to reduee the direct voting strength of racial minor-

ities." Similarly, if a minority has beetr denietl access to

the candidate slating process preceding an election, its

ability to exereise its numerical voting strength is diluted

by viitue of its lack of a vtrice in determining wSat candi-

tlates will be put before the elector:rte. A strong history

of voting'tliscrimination in an area also may result in
tlecreased voter registration and turnout today, becattse

of lingering voter frustration and diminisherl perceived

legitimacy of the electoral pl'ocess.28

Other factors enumet'ated in the Senate Report slred

light on whether racial minorities have the ability to
build political coalitions in order to alfect electoral out-

comes. Of foremost relevance is the extent to which vot-

ing patterns in elections are racially polarized. Coalition
potitics presumes that groups are willing to combine

io...r with other groups having compatible (or at least

not antithetical) goals or interests in order to elect can-

didates. But, where racial bloc voting exists, other nu-

merical minorities resist forming coalitions with a racial
minority solely because of its race and without regard to

the political expediencies that otherwise undellie coalition-
building decisions. For example, gt'oups that share eco-

nomic ot' other interests with blacks may nonetheless en-

gage in coalition-building only with whitm for t'acial rea-

sons, thereby precluding blacks from fairly and equally
participating in the election pl'ocess.

For similar reasons, the fact that election rhetoric is
based ott racial appeals provides strong evidence that a

lacial minority does not have an equal opportunity to

2? For r discussion of the implications of euch mechanisms, sae

infrolext at notes 54-66.

ea This factor nray be relevunt as welt to the nbility of a minority
group to participate efiectlvcly in coalition politics'



12

l)articipate in coalition politics. And socioeconomic dep-

rivation in the minority community, stemming from past

disclimination, can have a similar significance, because it
leads to depressal levels of political panticipation'2n A

disparity oi socioeconomie status also may engender a

laci of political savvy and a political agentla not shared

by other groups, the latter making it less likely that the

o[h.t gtorps will have cause to join fot'ces with the racial

minority. A lack of success by minority-bacled candidates

also may provide strong, quantitative evidence that mi-

norities have not successfully participatal in coalition-

building. Finally, unresponsiveness of elected offfcials to
. the necds of the minority may be evidence of the same

--l.thing'to

n See, e.g., lAhib tt. Regealet,4f2 U-S. ut 768; United Stolcs rr'

ilarengo County Comrnission, ?31 f'.z(l 1646, 1667 (llth Cir'),
cerl. ilenied, 106 S. Ct. 3?6 (1984) ; KirkseY rt- Boat'd ol Supcr'
aisors, 664 F.2d 130, f46 (6th Cir.), cett. denied, 4S4 U.S. 968

(19??). "IPllaintifts need not prove any further causal nexus

between their disparate eoclo-economic status nnrl the tlepressed

level of political participatlon." S. Rep. No. 41?, cttpro note 3, at 20

n.114.

.!o llowever, this factor is relevant prineipally to the existence of
intentional tliscrimlnation. See Rogers p. Lodge, 468 U.S. 6l:l' 626

(1082) ; (Jnitecl Statea u. Illarengo County Cotntnission, ?3f F'zd

1646 (lfth Cir.'), cert. ilenied, 106 S. Ct. 3?5 (f984). It thrrs hns

little importnnce in suits alleging discriminatory rcsults ttnrler

Section Z. tne Sennte Report states that "[ulnresponsiveness ls

not an essentlal part of plaintlfr's ease" and that "defen<lants' proof

of some rcsponslveness would not tregute plaintlft's showlng by
other, more objectlve fnctors enumertrted here that minorlty voters

nevertheless rvere shut out of equnl acct-,ss to thr.) political process."

S. Rep. No.4l?, artprc note 3, at 29 n. 116.

One of the factors listed ln the Senate lleport-whether the

pollcy undcrlylng the use of o standard or prnctice is tenuous-
ntso appears to be an lndlrect measure of intcntionnl rliscrlminttion.
See Lee County Bronch ol NAACP rt. City of ODelika, 748 lr'zd
1173,l47g (llth Cir. f984); Jones u. Citv of Lnbbock,727 F'Zd
364, 384 (6th Cir. 1084) '

13

III. TIIE I,AWITUT,NESS OF A CIIAI'LENGED I'IIAC'
TICE STIOTJLI) I}E I)ETDNMINET) ON THD I}ASIS

OF ITS IMI'LICA'I'IONS IION l'HI'SI} TWO MEANS

OF INIi'IUENCING ELIICTOIIAI, OUTCOMES.

Appreciation of these two avenues for influencing elee-

torai'outcomes__direct voting strength and the ability to

build coalitions-provides a basis for more coherent appli-

cation of the Senate.Report factors and fol more reasond

anrt preaictable identification of section 2 violations. The

*.igt t to be given to each factor and, correspondingly'

ihu=r*trr. of a plaintiff's required showing, should turn

on an evaluation of the mannu" in which the challenged

practice affects a minority,s ability to influence electoral

iutco*es through each of these avenues in the context of

the case.

As discussal below, this approach leads to the conclu-

sion, wlth respect to single'member districts, that a

scheme that either "fractures" a racial minorit'y among

districts or ,,packs,, i[ excessively lnbo a few distriots vio-

lates section 2 where racial bloc voting is significant or

rvhere o[her factors point to diminished coalition-building
power in the minolity group. With respect to multimem:

iler districts, which inherently dilute the voting power of

, all minot'ities, the ploposed approach suggests that all

such districts should be scrutinized closely to ensure that
concentrations of racial minorities al'e nob being fore-

closed from enjoying equal electoral opportunity'

A. A Single'Memlrcr Dlstrlctlng Scheme That "Frac-
tureB" or "Packs" a Raclnl Groull's Direct Votittg
Strength Should Ile Unlawfrtl Unless Other Factors
Indlcate That the Group Can Partlcipate Effectlvely
ln the Coatltlon'Ilulldlns Process'

Single-memher districts offer an obvious opportunity

for local majorities directly to exercise group voting
power to elec[ l.epl.esentatives of their choice. However,

ihe drawing of single distric[ lines can operate' "de'



14

signetlly or otherwise,"'r to reduee altificially the political

strength of particular groups of votets'

vo[er. concentr.ations can be mtrniptllated either by frac-

turirg-tt " 
breaking up of coh-esive population concentra-

lion.-into multiple ii*i"i.tr, leaving the members with

iiiti" "r..tive 
political influence in any districb-or by

pact ing-the tli'awing of district lines to concentrate a

;;il in a single or a-few districts in a proportion gr.eatly

i*...aing thal required to exercise direc[ voting power'

ihus redieing the group's political influence in any of the

remaining d istricts.sl

These mechanisms can minimize the ability of a cohe-

,ir" gtoup directly to influenee elec[ot'al outcomes' As the

Fim, cirrcuit noted in Robinson a. commissioners Court:

"The most clueial and precise instrument of the ' ' '
tlenialoftheblacknrinorit'y,sequalaccesstopolitical
jiarticipation, however, remains the gerry-mander .of
b;iilt lines so as to iragment what could otherwise

Le a cohesive voting community This dismem-

L""..nt of the blaik eommuniiy . . . [can] halvel
iie predictable effect of debilitating the o-rganization

and'clecreasing the participation of black voters in

. countY govel'nment." 8s

Indeed, these mechanisms can e[Iectively dilute the voting

strenglh even of a racial gl'oup that forms a majority of

st Zitnmer o. llcKeithen, 486 F.zd at 1304'

8'See geterally R. Morrill, Politicnl Retlistt'icting and Gcogtaphic

Tlreory ia-fr, fc-zo (198r); Parker, Ilacial Gen'umandeting and

Legis{afiae Reapltot'tionment, ln llinotity Vote Dihttion 85 (1984) ;

clinton, Further Etplorations in llw political Thicket: The Gettu-

nnndarl and the Constittttion, 69 lorva L' Rev' I (l$?3)' The

court has often reeognized the dlngers of fracturing and pncklng

in the constitutionat context. see, e.g., Burns a, Richttt'dson, 384

U.S. Ze (1966) ; Gomillion a. Lisht'foot,364 U'S' 339 (f060)'

8s606 F.zd 674,679 (6th Clr. 19?4). Such district lines "welgh

thepowerofonerucemoreherrvilythrrnanothcr.,,lVlt,ilcombo.
Cnavis,403 U.S' 124, 176 (lg?l) (I)ouglrrs"I'' concuu'ing)'

lb

the locat population.${ As a l'esult, singte-membet district-

i;; il;.; in whictr a "safe" minority district eould

iu'r. fr."r, created but was not, or in which minority

grorp memhers are pacltetl into a few tlistricts in numbers

?o, gr""t"r' than n...*t"''y to produee "safe" distriets'

,t ouia receive close serutiny ttnder Section 2''n

Sinco coalition-building is an alternative nreans of

influencing electoral o,t"-o'u', the lawfulness of such a

seheme may turtr on the extent to which the racial minor-

il it able to participate effectively. in that process' As

"ifi above, probably the most significant impediment to

ii,.-"tiiitv io uuita loalitions is the presence of raciallv

foiutir"O uoting.n" The trial cout't properly identified this

iactor as the 
-"single most llowerful factor in causing

i'aciat vote dilutionl" "? The pt'esence of racial polariza-

iion, ho*"uer, is necessarily a matter of degree' In some

cases, racial Ltoc voting may be so strong as to shttt out

"rtf.iy any candidabe backed by a racial group that is

t.*t ttun a majority of the district's voters;'8 in others'

;;;"*omple, if a State contalned 1(X) votets' 6? bluck and 3!

rvhite, a ffve-district system could in theory be gerrymandered

euch that white voters woukl outnumber blacks ll to g in each of

three districts while blacks rvould otttnumber whites 20 to 0 in
eachoftheothertwo'SeegenetallyStlll,AlteraotiaegtoSinglc-
llember Distt'ict's, ln tlinority Vote Diltttiom 240 (1984) '

xi See Kirkselt a. Boaril of Su',e,'uisors, 664 P'z(l 139' 149 (6th

Crr.l , celt. denied,4S4 tr.S. 968 (197?); Ketcltum u' Bvrne' 74o

F.zd 1Sg8, 1406 (?th Cir' l$84), cert' denietl sub notn' Citv Council

i. K"t"huro,l06 S. Ct. 2673 (1986); Maior a' Tretn' 6?4 F' Supp'

326, 362 (E.D. Ln. 1983).

r0 Soe tlartman, sttqtt note l$, at 606'

$?Dist.Ct.Op.,690F'Supp.at3?2,J'S'at'47a'AccoldUnited
Stotcs a. llarengo Cormty Ci'itflission' 781 F'2d 1646' 1666 (llth
Ci..l, cert. d,'niei!, 105 S' Ct' 3?6 (1984); t[ctlillon o' Escantbia

iorrniu, ?48 F.zd 108? (6th Cir' 1984); see Rosets o' Lodge' 468

u.s. 618, 616 (1982).

88See Rogers a. Lttilge,468 U'S' at 623; Pethins o' City of West

Ilelena,6?5 F.zd 201,213 (8th Clr'), ofr'tl' 469 U'S' 801 (1S82);



16

it may impair but not totally eradieate a minority's coali-

tion-builaing power.s' Such impait'ment, where districting
has reducett Ltre minority's direct voting strength, may

signiffcantly t'educe the group's overall ability to achieve

its eleetoral goals.

Fealty to the statutory goal of equal electoral opportu-
nity thtis intlicates that fracttrring or packing of direct
,oting strength, combined with significant racial bloc vot-

itrg, normally should trigger a Section 2 violation.ro Sinee

the greater the reduction in direct voting strength the

more coalition-building that is needed to affect electoral

outcontes, the degrm of racial polarization that a plaintiff
must show should deerease as the degree of tlemoglaphic
fragmentation or packing increases.

Even if racial bloc voting is not present to a degreo

that is significant in this context, other factols may indi-
cate that the oppoltunity of a group to engage in coalition

Note, ?De Constitrttional Significance of the Disu'iminatoru Ef-
lects ol At-Lorse Elections, gl Yale L.J.97E 989 (1082).

sD In the latter situation, the minority is denied an equal oppor-

tunity to inflrrence electoral outcomes, even though the polarization
is trot eo extreme as to gttarantee the dcfeat of every minority-
lracked candidate. See, e.g., CitU ol l+Iobile o. Bollen,446 U.S. 65'

106 n.8 (f980) (Marshatl, J., dlssentlng); Note, arrpra note lO, at
200 n. 67; Note, supro note 38, at 991-92.

Appeltants thus are wrong ln suggestlng that rnclnlly polarlzed

voting ls insignificant nntler Section 2 unless it consistently pre-

vents minorlty-backed candidates from winnlng nny elections. See

Brlef for Appellnnts at 40. If that positt6n were taken literally, tha

BucceBs of a single mlnority-backed candldnte worrld compel a findlng
that no cognizable racial bloc voting exists' Btlt such a slngle suc-

cess obvlousty does not forectose a concluslon that raclal polarizntlon

hrs impaired the minority's coalltion-buildlng power. Congreos'

awsreness that the abllity to influence electlons ls a m0tter of
rtegree ls plain from its articulation of the "extent" of success of
minorlty eandldates os one of the factors under Section 2' See

S. Rep. No. 417, auPra lnote 3, at 28-29.

ro See Kirkseu a. Boaril ol Superoisors, 664 tr.zd 189, 161 (6th

Clr.\, cerl. ilenied,434 U.S. 068 (f 977).

t7

politics-and thereby to afrect electoral outcomes-is im-

paired. For exampll, if blacks continue to suffer serious

socioeconomic effects from past discrimination, or if elec-

tions at'e markd by race-basal appeals, those faetot's

may establish that blacks are unable to form coalitions

that will influence electoral outeomes'rl

One further type of relevant evidenee obviously is a

lach of success in electing minority candidates or ol,hel's

endolsed by the minority community. The greater the dis-

parity between the proportion of such electetl ofHcials and

lne minority's shale of the population, the strongel the

inference tliat the minority does not effectively participate

in the coalition-builtling pl.ocess..r consideration of elee-

toral outcomes as eaiilence of the inability of a racial

minority to build coalitions, of course, does not amount to

the creation of a statutory right to proportional l'epre-

sentation. Congress made clear that outcomes are a rele-

vant consideration in identifying Section 2 violations''s

At the same time, it is clear also that the "election of a
few minority candidates does not'neeessatily foreclose the

possibility of dilution of the black vote.' "'{ Appellants'

suggestion that recent electoral successes by blacks bar a
finding of unequat opportunity'r [hus cannot be eorrect'
The races of successful candidates are only one piece of
evidence of a raeial minority's opportunity to influence
electoral outcomes. Just as victories by white candidates

at Sce supra text.precedlng note 29' '

n See. White a. Register,4f 2 U.S. ?66, ?66-60 (f073) ; Zimnrct tt'
McKeithen,486 F.zd l2g? (6th Cir. lg?B), tf'd. on otha' grmmds

snb nom. East Corroll Parislt School Board u. llotsholl,424 U'S' 686

(fg?6); see also NAACP'u. Gaisilen County Sehool Boatd,69l
F.2(l 9?8 (llth. Cir. 1982); Note, aupro note 10, ut 206'

$ See supra note 6.

.rS. nep. No.4l?, supronote 3, at 2C n' 116, quoling Zimmet'rt
llcKeithen,436 F.zd at 1307.

'6 See Bricf for APPellants at 24.



18

nay, in light of all other evidence, be consistent with a

nn,iing thit blacks enjoy equal voting power, victories b-y

partic"ular black cantlitlates may be consistent with a find-

ing that blaeks' opportunity to affect electoral outcomes

islitutea. A black candidate's suecess at the polls may

be explained by a variety of factors''n Failure to elect a

propoition"te number of representatives does not in itself
irigger a finrling of a statutory violation; {? and some

*"*rr.. of success in a particular election cloes not bar

such a finding.t8

I|. Muttimember Distrlcts That Subsume Large Mlnor'
ity Poputatlons Dllrrte the l)lrect Votlng l'ower of
Such Crotr;rs nnd Should Ile Closely Scrutlnlzed'

l. llnltimetnber Districts ltilrcrentlg Dllule the

Dttect Votlrtg Strcngtlt of Mhnrllles'

The creati0n of a muttimember or at-large district
tends to reduce the tlirect voting stlength of a racial (or

any other) minority subsumed within the district, par-
ticularly where the grotrp could have constituted a major-

ity in one or more of the single districts that could have

been created in lieu of the multimember one. Multimem-

r0 For example, whlte pollticians may lind it experlient to strpport

a "token" mlnority represcntatlve whose views they find acceptable'

See Avila, Mobile Ettiilentiary Atalysis, in The Right to Vote 126,

l3S (Roekefeller Foundatlon Conf. Rep. l98l); Betry &. Dye, Tlrc

Discrhnirwtorr Effects of At-Largc Elections, T Fla. St. U'L' Rev'

86 (r0?9). or they mf,y even support o minority cnndidnte ln orrler

to thwart a legal chaltenge to the electornl scheme on tlilrrtion
grorrnds. See Zimmet o. McKeithen, 485 f.zd at 1307. Thc lntter
possibllity ls especiatlf llkely where, as ltere, the electoral scheme

was challenged prlor to the recent successes of tlre minority candl-

dates. See Dist. Ct. Op.,690 F. Supp' nt 367 n.27, J'S' at 87nn'27'

r7 See suPfo note 6.

{s Electorat succes8eg eommensurate with a mlnorlty's share of
the populatlon over a significant periorl of time might, of cottrse'

.onriitut" substnntlal evitlr:nce that thtr grorrp euJoys eqtral electornl

opportunity, dependlng on the other fuets of tlre orse'

li,

ber districts, though not unlawful pey s€ under Section

2," thus require close scrutiny under that section'

In an at-large system, a maiority of the population of

tho district controis the election of each of the at-large

legislators. The Court has reeognized on numel'ous occa-

siins that such a "winnet'-take-all" voting system by def-

inition denies to every numel'icerl minority the propor-

tionate direct voting power it could have in single-member

rlistricts. ln Rogers a. Lotlge, the Court explained:
..AtJargevotingschemesandmultimemberdistricts
tentl to" rninimlze the voting strength of minority
g.oup, by permitting the pofitical pajgrity.to elect

itl riprut"nt"tiuut of the district. A distinct minor-
ity,-*irtf,.r it be a racial, ethnic, economic or politi-

"il'group, 
may be unable [o elect any- rbpresentatives

in in at-ia.ge election, yet may be able to elm[ sev-

eral r.epreseirtatives ii itre poiitical unic is divide6
into single-member districts." 60

congress also recognized the inherent dilutive efrect of

mul[imember districts in enacting the 1982 Aet'nr

roII.R. Rep. No. 227, sttpla note ?, at 30; S' Rep' No' 417, supta

note 8, at ZS-Za, 27. ln so concluding, Congress appears to have

followed geveral supreme court cases that had declined t<l hold at-

turge dlstricting unconstitutional per 8e' See lUhite o' Regester'

4lt U.S. ?66, ?65 (rg?s) ; whitcomb 'u. Clwois,403 U'S' 124, 142

(fO?f ) ; Fortson a. Doruev,3?C U'S. 433, 438-39 (f 066) ; see olso

Zimmer tt. llclkithen, 485 tr'.Zd at 1304' Thoso coaes, of course'

t.r" opur, the possibitity that an at-targe dist.ict muy be uncon-

stitutional where lt operotes under the circumstances to dilute thc

voting strength of raclal minorities'

60468 U.S.613,616 (1082) (emphasis in original) i aee also Citu

of tlobile rt. Boklen,446 U.S. 66, 66-66 (1$80) (pluralitv oplnion);

io*o, o. Finch,43f U.S. 40?, 416 (19??) i Whitunnb tt' Chaais' 401

U.S. 124, 168-69 (19?f) i Jones tt. Citv ol Lubbock,727 F'zd 364'

883(6ttlCir'1984).SeegenorollyBonapfel,IllinotityCltollenges
to Ai-Lorge Dlections: l'he Dihttion Problem, l0 Ga' L' Rev' 863

(lg?6) ; iarpcnetl, Legislatioe Apportionmenl: Mttltimember Dis-

iricts'anit Foir Reyresentation, 120 U' Pa' L' Rev' 666 (f972)'

6rThellouseReportexlllainsthnt..at-largeelectionsareoneof
the most effective methotls of diluting minority fvotlng] strcngth



2A

Multimember districting also tends to dilute the voting

strength of racial minorities in mole subtle'ways' For

.*"*"pl*, it contributes to the election of representatives

tacking close ties to the voters in particular communitiesl

hence,- irlentiliable constituencies have no' one member

specidcally charged with representing their intertuf'o'
At-I".g" systems also contribute to voter confusion, be-

cause ballots in such systems necessarily are more bulky

and difficult to comPrehend.6'

The dilutive effects of multimember districts can be

magnified or reduced by a state's adoptiotl of certain

strictural features. Sotne of those features-identified in
tho legislative history of the 1982 Act "'-catl strip away

further a minority's opportunity to influenee elections'

For example, a majority-win rule, t'equir-ing a runoff if
no candidate receives more than half of the votes cast,

may, in some instances, prevent a niinority candidate

from winning where the majority vote is split between

two majority candidates. Numbered post provisions, al-

lowing each voter to vote for only one candidate for each

numbered seat, prevent a minority from concentrating its
votes to take advantage of a split among majority group

voters. Anti-singleshot voting ltrovisions, too, by requir-

in Lhe covered jurisdictions," II.R. Itep. No. 227, supro note 7, at
18, and acknowledges that "numerous enrpirlcal studles based on

data cottected from many communlties have found a strong link
between atJarge elections and lnck of mlnority representation." .Id'
at 30. ;

6r'fhis etlect ls helghtened if the scherne lacks trny rcquirement
that members come from each of the implicit warrls lvithln the at-
large scheme. Sec llhite o. Regeate't',412 U.S. ?56' 766 n.10 (1973) ;

Zimrter o. McKcithen, 486 F.zd at 1306.

ni See, e.g., Connot t. Finclt',431 U.S' 407, {16 (19?7) i Chapman

o. Lleier,420 U.S. l, fb (f9?6) i Wollace o. House,616 f.zd 619'

62? (6th Cir. f9?6), uacatecl on other grounds,426 U.S' 947 (1076)'

rlr See supro note 12; sec also II.R. Rep. No. 227, strplc note 7,

at 30: S. Rep. No. 417, suln'o note 3, ut 20.

2t

ing each voter to cast a ballot fot' as many candidates as

thfre are oflices to be filletl, prevent targeted voting,

forcing rzcial minorities to vote for white candidates

where"the number of open seats exceeds the number of

minority eanditlates. F'inally, an election sclteme under

which [hu t"r^r of offices are staggered minimizes the

potential for vote-splitting among th-e majority group by

making felver seats open at any time.66

On the other hand, othet' structural features can com-

pensate for the nattrrally dilutive effects of an at-large

system. These inclutle cumulative voting il and limited

,Lting procedures."? Or a state can take a hybrid ap-

pror.L ty superimposing an atJarge scheme on top of it
system of single-member districts, so that some repre-

66 This cour[ and commentators have emphaslzed the inherently

dituilve chRracter of each of these structural provisions. sec, e.9.,

iogorr o. Loilge,468 U.S. 613, 62? (f982) ; Citu ol Ronte o' Udted

Stites,446 U.S. 166, 184 n.20 (fS80); White o' Regestbr,4l2 U'S'

?66, ?66 (19?3) i Zimntet a. Mclkithen, 486 tr'zd at 1806; Davidson'

Minority Vote Dilution, ln Minorits Vote Dilution 6-7 (fS84) ;

Bonapfel, Miru>tity Challengea to At-Large Elections: The l)ihttion
Probien, 10 Ga. L. Rev' 36S, 368-69 (19?6); Dcrfner, Raciol Dis-

crlminoiion anil Tlw llight to Vote,26 Vand' L' Rev' 623, 663 n'126

(19?8); Howard nnd lloward, The Dilem'ntn ol the Voting Rights

Act-Recoginizing the Emerging Politicol Equality Norm,83 Colum'

L. Rev. f6l6, f068-69 n.I84 (1983); Note, rr.tpro note 38' at 908-94'

60 wlth cumulative votlng, voters in multimember districts are

permlLted to east multlple votes for a slngle preferred candidate.

by enribling minority groups to concentrate thelr votes on a aingle

oi n few minority canditlates, cumulative votlng enhances minority
votlng etrength. See, e.{., llniteit States o' Morengo County Com-

miseiofi,?8fF.2d1646,t660n.24(llthClr'),cet't'denied'lO6
S. Ct. i?6 (f984) ; R. Dixon, Democtatic Representation 623-26

(f S68) ; E. Lakeman, IIow Damocracies Vote 87'91 (1$?4) '

6? Under a timited voting procedure, citizens are given fewer

votes than the number of oflices to be fllled, ntinintizing the "win-
ner-toke-all" blas lnherent ln multlmember systems' Sae, e'g',

Ilniteil Stotes tt. Illarengo County Commission, 781 F'2d at 1660

n.24; R. Dixon, lrropro note 66, at 621-28'



,*nr"uuu, are elected uttoLitn* to erach met'hotl'rs The

;; sr.h pro..dures, under appropriate circumstances'

"""frf". 
tt"tls to "retain the pelceived benefits of at-

i;6-;*lesentation while providing- opportunities for

un&tiru minority participation""" Where these compen-

;;tory meehanism, ,"u present, a multiniembet' scheme

*"V gi"" minorities an effective opportunity to exercise

It 
"i, 

?i.".t voting strength' However, ahsent such mech-

unit*t-"nd particularly if additional features exacer-

ffi;; dilutive effects are present-multimember dis-

tricts should be Garderl " inhutuntly suspect under

Section 2.oo

2. The Necd for Proot of Racial Polarlzation or

Otlrcr Factore Imlniring a lltnoritgls Ablllta lo

Itutld Coallllone Should Be Less lltlrcre Concert-

tratlona of Dltnorltg Voters u'e Substtrrrcd lrt

lI ultlntenfiet' Dlstt'icts'

The tlilution of a minority's rlirect voting strength by

multimernber tlistricts necessitates gleatet' success in co-

bB See Citll o| tlobile a. Bolilen,440 U.S. 66, 82 (1980) (Black-

mun, J., concurring) ; Ilnited States -u' 
Mat'engo County Conunis-

sfon, tCf F.2d at tO6O n.Zl; NAACP, Inc' a' Citv et Statetoille'

ooo f. Supp. 660 (W.D.N.C. 1986); Jantes u' Citv ol Sarosoln" No'

?9-1031-Civ-T-GC (D.C' Fla' Jan' 26' 1086) '

6D (Jiliteilstotes o. Muengo county corn,ntission, ?31 F'zd at 1660

n.24.
m In certnln limited lnstances, replacing an tt-large system with

a slngte-member scheme might ditute minortty voting strength

even iurther. If a raciul group is very small or its members are

sprearl rctatlvety er",,ly tltruughout -the area' then no single-

districtlng scheme can be establishetl tturt rvill enable the group to

exert a "trong 
polltictl influence cvetr in one district within a

eingte-memU.. ,.h*.". St"e, e'g', Doae o' tloote' 639 F'zd 1152' f 166

n.l"<eth Cir. 19?0) i Zimmer a' Mclkithen' 486 F'zd at 1308' In

other rare instances, the usc of a multimentber scltenre may be con-

siittrtionally compettetl by the lnu-p""rrn-urte-vote requircnrent' Sse

i6. at 130g. Ilowevcr, nlsent these unusu*l siluatlons, the prefer-

"rr"" 
fu" ..snfe', single-member 6istricts over rnttltimcmber dis-

tticts rellects C,,ngrel"s' "potiticul judgment"' Dist' Ct' Op" 690 
-F'

d"no."t 35?, J.S. at 18a, as to the most apptopriate vehicle for

i.t.niifving and eliminatirig the vestigcs of racial rliscriminution'

alition-building if a lacial minority is to influence elec-

tion outcomes. As , i.tuit, any ra;ial bloc voting will be

;;;;.i;il, Jestructive of a minoritv's opportunity to elect

.."pi*"."i-tives of itt tttoit"' Thus' the amount of racial

, polarization nu.u.*"y to warrant a. conelusion that a

group's ability to pui'ti.ipate in coalition politics- lt 1T-

i"itJa-.r,"uld be .ti"" rut* than woukl be required in the

context of single-member districts'

Indeed, where a concentrated population of minolity

,oiui* ftr. its direct voting strengih diluted through sub-

mel'genee in a muitimemb-er distr:ict' and where elections

ir-1irt district have not produced suecess by minority

candidates .orrrrn"r..itate wlth the minority's demographic

"tr".gtt,, 
uny .riJun"e of 'no'e 

thatt de minirTis -racial
bloc voting normaliy shoul<l su{fice to show a Section 2

violation. The same shoultl be true wit'h respect to other

factors evidencing impairment of a minority's oppoltu-

nity to engage in coalition politics'0|

IV. APPLYING TIIESE PRINCIPI'DS, TIIE COUNT

SHOULD AIIFIITM TIIE JUDGMENT BI}LOW'

When the trial'eourt's findings of fact eu'e considered

in relation to the statutory frameworh describetl above'

it is 
"lear 

that blacks in each of the challenged multi-

member districts do not gnioy equal electoral opportu-

nity.rr The court based its findings on an "intensely loetrl

it see, e.g., Ilnited statet o. Marengo county commiasion, 7.ll

F.2d 1616,i6oo trrtn Cit.), cefi' dmied, J96 s' ct' 3?6 (l$84t;

W"it"u o. Collins,605 F. Supp. 802, 812 (M'D' Tenn' l$85) i supro

text at notes 4l-42'

@ We do not untlcrstnnd that there rcmnlns any lssue concelning

the lawfulness of senate Distrlct No. 2, a single-member dlstrict'

Accord B,llef lor llnited States at ? n'll' We thus do not dlscuss

tlrt airt.i.t, except to note that the trial court's ffndings of frac-

turinginthattllstrictrrndof..Sdvereanrlpr:rsistentraclalpolari-
zationlnvoting,"Dist.Ct'Op',600F'Supp'nt368'3?2'J'S'.at
mi-Zto, 't6a, provide ample trnsls for its holdiug that the rlistrict

vlolates Section 2.



24

appraisal"'* of the structure antl operation of the chal-

["g.J ,.r,.mes. The finclings firmly establish that b]acks

in Ihese tlistricts are foreclosed from employing direct

voting strength and hampered in their ability to engage

in coalition politics.

There can be no doubt that blacl<s are denierl an equal

opportunity to exereise their direct voting strength to

".iliuu" 
electoral sueeess. The court fotrnd that concen-

trations of blacl<s within the boundaries of each of the

challenged districts weie sufficient to constitute major-

ities in"single districts, which would have enabled them

to elect .on,li,lnt"t throtrgh their own solidarity'H The

submergenee of these blach concentrations instead into
large riultimember districts in wlich blacks a'e reltt-

tivJly small minorities nn greatly diluted blacks' rlirect

voting strength. Moreover, the level of political partici-

patioi by black citizens was significantly depressed as-a

result of discrimination in prior elections.m The restrlt-

ing registration gap between blacks and whites even

fu"rttreiaiminishetl the direct voting strength of the blaclt

poptrlation.

In arldition, the challengerl schemes contain featut'es

that exacerbate the inherently tlilutive efrect of these

multimember districts. First, the trial cout't found that
North Carolina's majority-vote requirement for all pri-

mary elections under the circumstanees presents.an- "on-
going impediment to any eohesive voting minority's op-

6s White a. Regester,412 U.S- ?66' ?60 (f 973) '

c. IIad slngle districts been cr.eated, blacks would have constl-

tuted majori[ies ranglng from 62.? percent in Ilouse District No'

8 to ?1.2 percent in House District No' 36'. Dlst' Ct' Op'' 600 F'

Supp. at 367-68, J.S. at 19n-204.

o[Thepercentageorrfbtackslnthetotalpopulationsofthe
mutilmemler dlstrlcts ranged from 2l'8 percent in Ilorrse Dis-

trict No. 2l to 39.6 percent ln House Dlstrlct No' 8' The percent-

agesofblackslnthereglstered-voterpoptrlntionsofthesedis[ricts
rlngeO from 16'l to 29.6 percent. Id' at 86?, J'S' at 194'

oo Id. at 3G0-61, .I.S' at 24a-2$a.

25

portunity to elect eanrlidates of its choice ' ' ' '" ur Sec-

ond, the State's lack of a subdistricb resitlency reqttite-

rn.nt* enables the elected reptesentatives to come rlis-

proportionutely f rom outside the predominantly black

n.igl.l,o,.l.oods of the multimember districts. The dilutive

emelct of these features is compounded by the fact that

the size of these multimember districts is ttnttsually

large.t'o

In these circumstances, close scrutiny is necessary to

ensure that blacks are capable of engnging in coalition'
poiiii"t in these districts to ttre extent required to affotrl

ihem 
"qtral 

electoral opportunity. The trial eourt's find-

ings amply demonstrate that they are not' After review-

in[ extensive statistical and direct evidence, tlre trial
coirt fountl significant racial polarization in each of the

challenged dislricts.'u Not only did it lind an almost

a lil. a]-363, J.S. at 304. Contrary to Appellants' clalm' it ls lr-
retevant whether a black candidate demonstrably hus lost an elcc-

tlon because of such strrlcturll features' Sce Brlef for Appellants

at2T.2S.suchanargumentnotonlyignoreothefactthrrtrncinl
vote dilutlon enn bc signiffcant wlthout belng absolute, but it fails

to conslder the lnterrelationship of such features with other lm-

petllments to black electornl succels. For exnmple, the trinl court

noted that the ma jority-vote xrqttirement is especlnlly htrmfrrl
where racinl potarizntion exlsts. S' c l)ist' Ct' OI', 6$0 F' Supp' at

863, .I.S. at 8Oa. It notert nlso that, ln reeent yenrs, blnek eandi-

dutes for Congress anrl Lietrtennnt Govel'nor lvho lerl ln the first

f)emocratic prlntory lost in the runofr election tnnnrlnted by thc

majorlty-vote requirernent' Id.

08 Dlst. Ct. Op., 690 F. Supp at 363, J'S' ut &04'

00 Tr. at 133 (Testlmony of l)r. B. Grofmnn)'

lof)ist. Ct. Op.,690 F. Supp. at 867-72, J'S' rrt 38n-46n' In chnl-

tenging the trlnl court's fintling of racial bloc votlng, Appellnnte and

the unltcd states erroneorrsly focue on setectlve data concerning

tt,u p"."unt"ges of white votes recelved by a few btack candldates.

sea brief for Appellunts at 36-38; Brief for United states at 32-83.

Thut focus, out 0f contcxt, can be hlghly mlsleadlng. For example,

both briefs stress that rt black ctndidate (Rerry) received 60 per-

cent and 42 percent of the white vote in the primary anrl general



26

unpreeedented correlatton between the raee of voters antl

the race of the candidates for whom they voted,Tr but

white voters consistently exhibited a strong reluetance to

vote for black candidates under any circumstances.?'

Such sevele racial polarization shotrld be ample, givetr

the tlilutive features of these multimember distriets anrl

their demographic and historical contexts, to sttpport-the

trial courtis conclusions that the districts violate Sec-

tion 2.

The trial eout't's aclditional findings on the ptevalence

of subtle racial appeals in election campaigns " old -ol
the <lisatlvantaged etlueational, employment, and health

status of blacks stemming from pasb intentional diserim-

ination ?'r buttress this conclusion, as does the cout't's find-

ing of persistent untlerreplesentation of black-supported

etectlon for tlouse District No. 86 ln 1982. The trial court spe-

ciffcally atldressed the misleadlng nature of this statistic, pointing

out that ln the prlmory there were only seven white candldates

for elght positions so that at least one black had to be elccted, and

that ln the general etectlon a sotld majority of whlte voters refused

to vote for any black cantlidates. Dlst. Ct. Op', 6$0 F' Supp' at

869, J.S. at 424.

?r Dist. Ct. Op., 690 F. Supp. at 36?-68 & n'30, J'S' at 384-404

& n.30.

'3 For example, the trial court fotrnd that whlte voters almost

universally ,^nk..l blnck candldates last or next to last smong all

candidates, and thnt most refuserl t0 aupllort black candldntes ln

gencral elections even when they were running ngainst candldates

of tt " 
party the whites would otlterrvise ttppose or whetr black in-

cumbents ran ttncontested. ftI. tt 368, .I'S' nt 40n'

r! ftI. at 364, J.S. at 31a-324'

1| lil. at 861-63, J.S' at 26a.29a. The trial court found that these

tllsadvantages resulted in slgnlflcantly depressed levels of soclo-

economic *.tt-lr"ing for blacks, givlng "rlse to speclal group lnter-

ests ccntered upon those factors'" Id' at 363, J'S' at 2ga' This dis-

iun"tion between the politlcal agenda of blacks and rvhltes slgnl-

ffeantly reduces the impetus for whites to engage in coalltlon-

building with blacks.

2l
candidates at all levets of government'?r' The eourt's fintl-

i"g ,f black underrepresenla[ion was based not on a rule

of thumb of "proportional representation," as Appellants

suggest,?o but on the court's analysis of the results of

ele"Jions hell in ea6h challenged district and the elec-

toral contexts that generated those results'?t Though

acknowledging the recent election of a few black candi-

dates, thelrial court found compelling reasons to doubt

that those results demonstrated equal electoral opportu-

nity,?8 and found the "overall results achieved t'o dats

at att tevels of elective office . . minimal in relation to

16 Id.. at 867, J.S. at 3?a.

ro Brlef for APPellants at 19.

?'Dist. Ct. Op., 690 F. Supp' at 864-66, J'S' at 82a-it6a' By aelec-

ilvely focusing on certain races and ignoring the elrcumstattces of

those races, Appellants and the united states draw unwarranted

lnferences about blacks' ablllty to lnfluence the political ploces{t.

For example, the united states infers that blacks enjoy equal elec-

toral oppoitunity in llouse District No. 23 by virtue of the electlon

of a black member to a three-person llouse delegation where blncks

constitute 86.8 percent of the population. Brief for united states at

22, Such an lnference is unsound: The trial court polnts out that
only two white candidates declded to enter the race for three seats.

A btack candidate therefore had to win. See 690 F' Supp' at 868'

J.S. ab 40a. In nddition, the court noted that no black had ever

been electetl to the senate from the area conrprislng District 23,

and that only 26 percent of the city council members are black

despite a 4? percent btack voting population' Id' at 866, J'S' at 36tt'

ttre UniteA States also emphasizes that two of five House delegates

in Dlstrict No. 39 are black while blacks constitute only 26 percent

of the population, see Brief for united states at 20, but ignores the

court's additionat findinge that onty one of eight Board of Educo-

ilon mernbers is black, that onty one of flve city commisslonels is

black, and thut no blacks have ever been elected to the senate from

that area. See Dlst. Ct. Op., 690 F. Supp' at 366' J'S' at 36a'

zs For example, the court conclurled that the somewlrat highcr

level of success experienced by black candidates in 1982 compared

to previous yelrs likely was caused br th9 pondency of this very

lawsuit, which encouraged whlte potitlcat leaders to aupport token

black candkl[tes in order to forestall success by plnintiffs. sec

Dist. Ct. Op.,600 F. Supp. at 36? n'27, J'S' at 37a n'27'



28,

the percentage of blacks in the total popula-tio1"".' Tfese

"aaitionat 
fi-ntlings leave no doubt that blacks in these

,nuitirn"rUer districts are hindered in engaging in coali-

tion politics, and under the circumstanceg are being

denied equal electoral opportunity.

CONCLUSION

For these reasons, the judgment of the court below

should be affir'med. ' RespectfullY submitted,

Wlt t lltrl T. t arn
Counsel of Record

AunrrNNn Mlsrons

\{tt uEn, Cutlrn & PtcrnntNc*
1666 K Street, N.lff.
Washington, D.C.20006
(202) 872-6000

Couuel tor Ambw Curine
CotnrnonCoue

Augupt i0, 1986

70 Id.
r Evan Caminker, & summer associate at the law firm of Wllmer'

Cutler & Pickering, assisted in the preparution of thls brlef'