Brief for the Lawyers' Committee for Civil Rights Under Law and the American Jewish Committee as Amici Curiae Supporting Appellees

    No.83-1968 

IN THE 

~uprrmr OJnurt nf tqr llnitrb ~tntra 
OCTOBER TERM, 1985 

LACY H. THORNBURG, et al., 

v. Appellants, 

RALPH GINGLES, et al., 
Appellees. 

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

BRIEF FOR THE LA WYERS' COMMITTEE 
FOR CIVIL RIGHTS UNDER LAW AND 
THE AMERICAN JEWISH COMMITTEE 

AS AMICI CURIAE SUPPORTING APPELLEES 

JAMES ROBERTSON 
HAROLD R. TYLER, JR. 

Co-Chairmen 
NORMAN REDLICH 

Trustee 
WILLIAM L. ROBINSON 
FRANK R. PARKER* 
SAMUEL !SSACHAROFF 
PATRICIA M. HANRAHAN 

LA WYERS' COMMITTEE FOR 
CIVIL RIGHTS UNDER LAW 

1400 'Eye' Street, N.W. 
Suite400 
Washington, D.C. 20005 
(202) 371-1212 

SAMUEL RABINOVE 
RICHARDT. FOLTIN 

THE AMERICAN JEWISH 
COMMITTEE 

165 East 56 Street 
New York, New York 10022 
(212) 751-4000 

Attorneys for Amici Curiae 

* Counsel of Record 

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





TABLE OF CONTENTS 
Page 

STATEMENT OF INTEREST ···-- ------------------ ---- ------ ------ 1 

INTRODUCTION AND SUMMARY OF ARGU-
MENT ·-----------------------------··--·------------ -----------·····--····---- ------- 2 

ARGUMENT ---------------------------- ------------------- ---- -- ----------------- 4 

I. THE DISTRICT COURT PROPERLY CON­
CLUDED THAT THE TOTALITY OF CIR­
CUMSTANCES DEMONSTRATED AN IM­
PERMISSIBLE DILUTION OF MINORITY 
VOTING STRENGTH, AND ITS ANALYSIS 
OF EACH OF THE RELEVANT FACTORS 
WAS CONSISTENT WITH THE VOTING 
RIGHTS ACT AMENDMENTS OF 1982_____ ___ 4 

A. Section 2 Violations Are Established By the 
"Totality of the Circumstances"_____ ___ ____ __ ____ _ 4 

B. The District Court's Ultimate Conclusion of 
Discriminatory Result was F ully Supported 
by the Totality of Circumstances ---------·---··--· 8 

II. THE DISTRICT COURT DID NOT ERR IN 
CONCLUDING THAT THE ELECTION OF 
SOME MINORITY CANIDATES DID NOT 
ALTER THE HISTORIC PATTERN OF LACK 
OF OPPORTUNITY FOR MINORITY VOT­
ERS, NOR DID IT ADOPT A PROPORTIONAL 
REPRESENTATION STANDARD___ ______ ______ _____ 11 

A. The Election of Some Black Officials Did 
Not Disprove Lack of Equal Opportunity to 
Elect Minority Officials ···--------------------·------ ------ 12 

B. Appellants' Claim that the District Court 
Imposed a Proportional Representation 
Standard Harkens Back to the Rejected Ar­
guments Made by Opponents of the 1982 
Amendment to the Voting Rights Act........ 17 



ii 

TABLE OF CONTENTS-Continued 

III. APPELLANTS SEEK TO NULLIFY THE 
1982 AMENDMENT TO THE VOTING 
RIGHTS ACT BY FORECLOSING THE JU­
DICIAL INQUIRY INTO THE TOTALITY OF 
THE CIRCUMSTANCES WHICH GIVE RISE 

Page 

TO CLAIMS OF VOTE DILUTION ................... 19 

A. The Use of Statistical Analysis and Lay 
Witnesses to Establish Racially Polarized 
Voting Without Any Inquiry Into Voter 
Motivation Is Fully Suppor ted by the Case 
Law and the· Legislative History of Section 
2 ............................................................................ 19 

B. Appellants and the Solicitor General Seek 
to Reimpose an Intent Standard Onto Sec­
tion 2 Claims by Requiring Proof of Motiva-
tion of Voters ..................................................... 24 

IV. CLAIMS OF VOTE DILUTION, LIKE ALL 
CLAIMS OF AN ABRIDGMENT OF THE 
FRANCHISE, ARE ENTITLED TO SPECIAL 
JUDICIAL SOLICITUDE .................................... 27 

CONCLUSION ..................................................................... 30 



iii 

TABLE OF AUTHORITIES 
Cases: 

Beer v. United States, 374 F. Supp. 363 (D.D.C. 
1974), vac'd 425 U.S. 130 (1976) -------------------- --- ­

Bolden v. City of Mobile, 423 F. Supp. 384 (S.D. 
Ala. 1976), aff'd 571 F.2d 238 (5th Cir. 1978), 

Page 

14 

rev'd 446 U.S. 55 (1980) ----·---- ---- --------------- -------1, passim 
Boykins v. Ha.ttiesburg, Civil No. H77-0062 (C) 

(S.D. Miss., March 2, 1984) ----- ------------------ --- -- ------
Burns v. Richardson, 384 U.S. 73 (1966) ______ _________ _ 
Chapman v. Meier, 420 U.S. 1 (1975) ________ ______ _____ _ 
Chrysler Corp. v. Brown, 441 U.S .. 281 (1979) ___ _ 
City of Port Arthur v. United States, 517 F. Supp. 

987 (D.D.C. 1981), aff'd, 459 U.S. 159 (1982) ___ _ 
City of Rome v. United States, 472 F. Supp. 221 

(D.D.C. 1979), aff'd, 446 U.S. 156 (1980) _______ _ 
Connor v. Johnson, 402 U.S. 690 (1970) ____ ____________ _ _ 
Cross v. Baxter, 604 F.2d 875 (5th Cir. 1979) _______ _ 
Duplex Printing Press Co. v. Deering, 254 U.S. 

443 (1920) ··------------------------------ ----- ---------------------- -- ---
Ernst & Ernst v. Hochfelder, 425 U.S. 185 

(1976) ·- -- --- ---------- -------------------------------------------------------
Ferguson v. Winn Parish Policy Jury, 528 F.2d 

23 
2,8 

9 
5 

23 

16,20 
9 

14 

5 

5 

592 (5th Cir. 1976) ------- ----------------- ----------------------- 26 
Fortson v. Dorsey, 379 U.S. 433 (1965) ·------- --------- 2, 8 
Graves v. Barnes (Graves I), 343 F. Supp. 704 

(W.D. Tex. 1972.), aff'd sub nom. White v. Reges-
ter (White I), 412 U.S. 755 (1973) _____ _______ ___ ______ _ 

Graves v. Barnes (Graves II), 378 F. Supp. 640 
(W.D. Tex. 1974), vac'd sub nom. White v. Reg-
ester (White II), 422 U.S. 935 (1975) _______________ _ 

Harper v. Virginia State Bd. of Elections, 383 
u.s. 663 (1966) ----------------------------------------------------­

Jones v. City of Lubbock, 727 F.2d 364 (5th Cir. 
1984), reh'g en bane denied, 730 F.2d 233 

22 

14 

28 

(1984) -------- -- -- ------------------- -- -- ------------------ -- -: _________ _____ 23, 27 
Jordan v. Winter, 604 F. Supp. 807 (N.D. Miss. 

1984), aff'd sub nom. Mississippi Republican 
Executive Committee v. Brooks,-- U.S.--, 
83 L.Ed.2d 343 (1984) ------- ------ ----------------- ------------ 23, 26 



iv 

TABLE OF AUTHORITIES-Continued 

Ketchum v. Byrne, 740 F.2d 1398 (7th Cir. 1984), 
cert. denied, 86 L.Ed.2d 692 (1985) ------ ---- ----------

Kirksey v. Board of Supervisors of Hinds County, 
402 F. Supp. 658 (S.D. Miss. 1975), aff'd, 554 
F.2d 139 (5th Cir. 1977) (en bane), cert. denied, 
434 u.s. 877 (1977) ---- --------- ---------------------------------

Lipscomb v. Wise, 399 F. Supp. 782 (N.D. Tex. 
1975) rev'd, 551 F.2d 1043 (5th Cir. 1977), 
rev'd, 437 U.S. 535 (1978) ---- ---------- -------------------­

Major v. Treen, 574 F. Supp. 325 (E.D. La. 1983) __ 
Mandel v. Bradley, 432 U.S. 173 (1977) _____ _______ __ __ _ 
McDaniel v . Sanchez, 452 U.S. 130 (1981) __ _____ _____ _ 
McMillan v. Escambia County (McMillan I), 638 

F.2d 1239 (5th Cir. 1981), aff'd on rehearing, 
688 F.2d 960 (5th Cir. 1982), rev'd, Escambia 
County v. McMillan,-- U.S. --, 80 L.Ed.2d 

Page 

14 

14 

23 
14,23 

27 
1 

36 (1984) --- ----------------------------------------------------------1, passim 
McMillan v. Escambia County (McMillan II), 748 

F.2d 1037 (5th Cir. 1984) --------- --- ------- ------ ------ --6, passim 
Moore v. Leflore County Board of Election Com-

missioners, 502 F.2d 621 (5th Cir. 1974) _______ _ 26 
NAACP v. Gadsden County School Board, 691 

F.2d 978 (11th Cir. 1982) ----------- ------- ------------------- 14, 23 
N.L.R.B. v. Fruit & Vegetable Packers, 377 U.S. 

58 ( 1964) ---------- ---------------- ----------------------------------------
National Woodwork Mfrs. Assoc. v. N.L.R.B., 385 

u.s. 612 (1967) ·---- -·-----------------------------· ·· --- ·---------­
Nevett v. Sides, 571 F.2d 209 (5th Cir. 1978), 

cert. denied, 446 U.S. 951 (1980) --···------ ---------·-­
Nixon v. Condon, 286 U.S. 73 (1931) ----· ---- ·-·--· ·--·-­
Nixon v. Herndon, 273 U.S. 536 (1927) -·-- -··--------·-­
Parnell v . Rapides Parish School Board, 425 F. 

Supp. 399 (W.D. La. 1976), ajj'd, 563 F.2d 180 
(5th Cir. 1977), cert. denied, 438 U.S. 915 
(1978) ··-- ---·------·-·-------· --·-··------·--·-·-- ·---··-·-·---· --··--···-· ··--

Perkins v. City of West Helena, 675 F.2d 201 (8th 
Cir. 1982), aff'd mem., 459 U.S. 801 (1982) .... 

Perkins v. Matthews, 400 U.S. 379 (1971) ----··--·--­
Political Civil Voters Organization v. Terrell, 565 

5 

5 

20 
28 
28 

22 

23 
9 

F. Supp. 338 (N.D. Tex. 1983) ·--··---·-·--------· ·-------· 14, 23 



v 

TABLE OF AUTHORITIES-Continued 
Page 

Pullman-Standard v. Swint, 456 U.S. 273 (1982) __ 17 
Reynolds v. Sims, 377 U.S. 533 (1964) ------------------- 28 
Robinson v. Commissioners Court, 505 F .2d 674 

(5th Cir. 197 4) ------------------------------------------------------- 26 
Rogers v. Lodge, 458 U.S. 613 (1982) ---····--···-----1, passim 
Sierra v. El Paso Ind. School Dist., 591 F. Supp. 

802 (W.D. Tex. 1984) ---------·--·-··---·---····------··--·--- · 14 
Turner v. McKeithen, 490 F.2d 191 (5th Cir. 

1973) ---··-·'······-·-··-----·--·---------------------·-··-··------·-----·---·- 26 
United Jewish Organizations v. Carey, 430 U.S. 

144 (1977) ·--------------------------------------------------------------- 17, 20 
United States v. Board of Supervisors of Forrest 

County, 571 F.2d 951 (5th Cir. 1978) -----··-·------- - 14 
United States v. Calamaro, 354 U.S. 351 (1957) ____ 5 
United States v. Carolene Products Co., 304 U.S. 

144 (1938) ·-------·------------ --- ---------------------·------------------ 28, 29 
United States v. Dallas County Commission, 739 

F.2d 1529 (11th Cir. 1984) -------------------------------·--- 5 
United States v. Marengo County Commission, 

731 F.2d 1546 (11th Cir. 1984), cert. denied, 
105 S.Ct. 375 (1984) ---·---------- ------- ---------- -- -----------5, passim 

Wallace v. House, 377 F. Supp. 1192 (W.D. La. 
1974), aff'd in part and rev'd in part, 515 F.2d 
619 (5th Cir. 1975), vac'd 425 U.S. 947 (1976) __ 9, 14 

White v. Regester, 412 U.S. 755 (1973) ·-------------3, passim 
Yelverton v. Driggers, 370 F. Supp. 612 (S.D. Ala. 

197 4) ------------------------------------- ---··---------------·------------·--- 14 
Yick Wo v. Hopkins, 118 U.S. 356 (1886) _____________ 28 
Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 

1973) (en bane), aff'd sub nom. East Carroll 
Parish School Board v. Marshall, 424 U.S. 636 
(1976) ·- -- ------ -------- ------------------- --- ---------- ----- -------------3, passim 

STATUTES: 

Voting Rights Act of 1965, 42 U.S.C. § 1973 ________ 2, passim 

RULES: 

Fed. R. Civ. Pro. 52 (a) -------- -------------------------------·---- 17 



vi 

TABLE OF AUTHORITIES-Continued 

LEGISLATIVE HISTORY: 

S. Rep. No. 417, 97th Cong., 2d Sess. (1982), 
reprinted in 1982 U.S. Code Cong. & Ad. News 

Page 

177 ----·------------------------------------- ----------- --- -----------------5, passim 
Voting Rights Act: Hearings on S. 53 et al. Be­

fore the Subcomm. on the Constitut,ion of the 
Senate Comm. on the Judicia1·y, 97th Cong., 
2d Sess. (1982) ----------------------- ------- ------------------------- 18 

MISCELLANEOUS: 

E. Banfield & J. Wilson, City Politics (1963) _________ 9 
H. Blalock, Social Statistics (2d Ed. 1979) ____ _____ __ __ 22 
J. Ely, Democracy and Distrust (1980) ___ ____ ___ _______ 29 
A. Karnig & S. Welch, Black R epresentation and 

Urban Policy (1980) ------------------------- ----------------- -- -- 9 
J. Kent, Commentaries on American Law, (12th 

ed. 1873) -------------------------------------- -·---------------------------- 10 
Ackerman, Beyond Carolene Products, 98 Harv. 

L.Rev. 713 (1985) ------------ ----------------·----------- -------- 29 
Berry and Dye, The Discriminatory Effects of 

At-Large Elections, 7 Fla. St. U. L. Rev. 85 
(1979) -------------------------------- ---.--------·----------------- ----------- 9 

Davidson and Korbel, At-Large Elections and 
Minority Group Representation, 43 J. Politics 
982 ( 1981) -------------------·------------------------------------------- 9 

Engstrom, The Reincarnation of the Intent Stand­
ard: Federal Judges and At-La.rge Election 
Cases, 28 Howard L.J. No. 2 (1985) (forthcom-
ing) ·--------------------- -------------------------- --------------------------- 26 

Engstrom and McDonald, The Election of Blacks 
to City Councils, 75 Am. Pol. Sci. Rev. 344 
( 1981) ------------------------------------------------ --------------------- - 9' 10 

Grofman, Misalski, Noviello, The 'Totality of Cir­
cumstances' Test in Section 2 of the 1982 Exten­
sion of the Voting Rights Act: A Social Science 
Perspective, 7 Law and Policy 199 (1985) _____ _____ 22, 23 



vii 

TABLE OF AUTHORITIES-Continued 

Hartman, Racial Vote Dilution and Separation of 
Powers: An Exploration of the Conflict Be­
tween the Judicial "Intent' and the Legislative 
"Results" Standards, 50 Geo. Wash. L.Rev. 689 

Page 

(1982) ------------------- ----- --------------.-------------------------------- 12 
Jones, The Impact of Local Election Systems on 

Black Political Representation, 11 Urb. Af. Q. 

345 (1976) -------------·-------------------- ----·--- ---------------------- - 10 
Karnig, Black Representation on City Councils, 12 

Urb. Aff. Q. 223 (1976) --- ------------------------------------- - 10 
Kramer, The Election of Blacks to City Councils, 

1971 J. of Black Studies 449 (1971) -- ------------------ 10 
Latimer, Black Political Representation in South-

ern Cities, 15 Urb. Aff. Q. 65 (1979) -------------------- 10 
Parker, Racial Gerrymandering and Legislative 

Reapportionment in C. Davidson, Minority Vote 
Dilution (1984) ------------------------------ ------------ -------------- 10 

Parker, The "Results" Test of Section 2 of the 
Voting Rights Act: Abandoning the Intent 
Standard, 69 Va.L. Rev. 155 (1983) ________ __ _____ _____ 12 

Powell, J., Carolene Products Revisited, 82 Col.L. 
Rev. 1087 (1982) ------------ ---------------------------------------- 28 

Robinson and Dye, Reformism and Black R epre­
sentation on City Councils, 59 Soc. Sci. Q. 133 
( 1978) ----------------------------------------- -- ------- --------------------- 10 

Sloan, "Good Government" and the Politics of 
Race, 17 Soc. Probs. 151 (1969) -------------- ---- -------- 10 





BRIEF FOR THE LA WYERS' COMMITTEE 
FOR CIVIL RIGHTS UNDER LAW AND 
THE AMERICAN JEWISH COMMITTEE 

AS AMICI CURIAE SUPPORTING APPELLEES 

STATEMENT OF INTEREST 

The La:Wyers' Committee for Civil Rights Under Law 
is a nonprofit organization established in 1963 at the re­
quest of the President of the United StJates to involve 
leading members of the bar throughout the country in 
the national effort to assure civil rights to all Americans. 
Protection of the equal voting rights of all citizens has 
been an important component of the Committee's w~rk, 
and it has submitted amicus curiae briefs in a number 
of voting rights cases decided by this Court, including 
Escambia County v. McMillan, -- U.S. - - , 80 L.Ed. 
2d 36 (1984); Rogers v. Lodge, 458 U.S. 613 (1982); 
McDaniel v. Sanchez, 452 U.S. 130 (1981); and City of 
Mobile v. Bolden, 446 U.S. 55 (1980). The Lawyers' 
Committee has more than eighteen years' experience liti­
gating voting rights cases, including several appearances 
before this Court. 

The American Jewish Committee is a national organi­
zation of approximately 50,000 members which was 
founded in 1906 for the purpose of protecting the civil 
and religious rights of J ewi'Sh Americans. It has always 
been the conviction of this organization that the security 
and the constitutional rights of Jewish Americans can 
best be protected by helping to preserve the security and 
constitutional rights of all Americans, irrespective of race, 
religion, sex or national origin. 

The American Jewish Committee and the Lawyers' 
Committee for Civil Rights Under Law strongly sup­
ported enactment of the Voting Rights Act of 1965. We 
continue to believe that this landmark statute, as 
amended, must be enforced vigorously to fulfill its ob­
jectives and therefore urge affirmance of the decision be­
low. 



2 

INTRODUCTION AND SUMMARY OF ARGUMENT 

This appeal challenges a determination by a three­
judge district court that a legislative redistricting plan 
enacted by the General Assembly of North Carolina had 
the effect of diluting black voting strength in six multi­
member state House of Representatives and Senate dis­
tricts and in one racially gerrymandered state Senate 
district. 

Although this appeal presents this Court with its first 
plenary review of a case involving Section 2 of the Voting 
Rights Act, 42 U.S.C. § 1973, since its amendment by 
Congress in 1982, the issues presented nonetheless fall 
within the well-developed jurisprudence of this Court con­
cerning vote dilution. At stake in this litigrution is the 
ability of the federal judiciary under the mandate of the 
Voting Rights Act to void discriminatory redistricting 
plans and to secure for black citizens the full oppo~tunity 
to equally participate in the political process and to elect 
the representatives of their choice. Appellants, with the 
backing of the Solicitor General, seek to debilitate the 
amended Voting Rights Act by asserting that the trial 
court's -careful examination of the context in which a 
vote dilution claim arises necessarily leads to a "propor­
tional representation" standard of review. In addition, 
appeUants would reinfuse an intent standard into the 
Act, despite its express repudiation by Congress in 1982, 
by requiring proof of the electorate's racial motivation 
before racially polarized voting may be weighed as an 
evidentiary factor in a vote dilution claim. 

r.t is instructive that the attempt to secure such an 
evisceration of the amended Voting Rights Act occurs in 
the context of at-large elections. Beginning with Fortson 
v. Dorsey, 379 U.S. 433 (1965) and Burns v. Richardson, 
384 U.S. 73 (1966), and continuing through Rogers v. 
Lodge, this Court has repeatedly viewed with skepticism 
the use of multimember dis,tricts in communities evi­
dencing a history of sharp racial polarization and dis­
criminatory practices. Although the use of at-large sys-



3 

terns in itself violates neither the Voting Rights Act nor 
the Constitution, it is long settled that these systems sin­
gularly lend themselves to an impermissible diminution 
of the value of the franchise of minority populations. In 
amending the Voting Rights Act in 1982, Congress drew 
upon two challenges to a~t-large elections to frame the 
"totality of the circumstances" standard embodied in Sec­
tion 2 of the Act. See White v. Regester, 412 U.S. 755 
(1973) and Zimmer v. McKeithen, 485 F.2d 1297 (5th 
Cir. 1973) (en bane), aff'd sub nom. East Carroll Parish 
School Board v. Marshall, 424 U.S. 636 (1976). 

Under the statutory ·~totality of the circumstances" test 
derived from White and Zimmer, vote dilution cl<aims are 
of necessity fact specific and must correspond to the local 
context. North Carolina is ·a state with a long history of 
official discrimination against blacks in all aspects of 
civil life, including the iron-clad preclusion of any role in 
political life. From the conclusion of Reconstruction un­
til 1969, no black had ever been elected to the State House 
of Representatives; not until 1975 did any blacks num­
ber among the state's Senators. Against this background, 
the claims of "proportional representation" can be laid to 
rest with the most rudimentary examination of North 
Carolina political life. Although blacks constitute 22.4,% 
of the state's population, between 1971 and 1982 (the 
year this lawsuit was filed), the number of bltacks in the 
state House was between two and four out of a total of 
120; between 1975 and 1983, there were one or two black 
members of the state Senate out of a total of 50. Only 
five House dis1tricts and two Senate districts are involved 
in this litigation and, as a simple arithmetical matter, 
the outcome would not and could not guarantee propor­
tionality. 

This appeal permits this Court to affirm the district 
court's proper application of the congressionally-specified 
evidentiary factors of illegal vote dilution. Beyond re­
affirming the application of amended Section 2, however, 
this appeal allows for a renewed declaration of the piv-



4 

otal role of the voting rights of America's minority citi­
zens. If the political processes are to be utilized to eradi­
cate the vestiges of discrimination from our society, full 
and equal participation in the political process, including 
the ability to elect representatives, must be guaranteed to 
minorities under the careful and exacting judicial scru­
tiny mandat ed by Congress. 

As amici, the Lawyers' Committee for Civil Rights Un­
der Law and the American Jewish Committee appeal to 
this Court not to waver from this task. 

ARGUMENT 

I. THE DISTRICT COURT PROPERLY CONCLUDED 
THAT THE TOTALITY OF CIRCUMSTANCES 
DEMONSTRATED AN IMPERMISSIBLE DILU­
TION OF MINORITY VOTING STRENGTH, AND 
ITS ANALYSIS OF EACH OF THE RELEVANT 
FACTORS WAS CONSISTENT WITH THE VOTING 
RIGHTS ACT AMENDMENTS OF 1982. 

A. Section 2 Violations Are Established By the "Total­
ity of the Circumstances." 

In 1982, Congress enacted a series of amendments to 
the Voting Rights Act, 42 U.S.C. § 1973, to secure for vic­
tims of discriminatory vote dilution a strong and work­
able statutory remedy. Congress devoted particular at­
tention to the standards for proving abridgment of the 
right to vote under Section 2 of the amended Act as a 
result of this Court's ruling that claims of unconstitu­
tional vote dilution can be premised only upon a showing 
of discriminatory intent. City of Mobile v. Bolden, 446 
U.S. 55 ( 1980) .1 The legislative history of the 1982 
amendments makes unmistakably clear that the principal 
objective was to provide a remedy for electoral schemes 
that deny minorities an equal opportunity to participate 
in the political process and elect representatives of their 

1 The City of Mobile plurality extended the same standard to 
vote dilution claims under the pre-1982 version of Section 2. 446 
U.S. at 61. 



5 

choice without reqmrmg proof of discriminatory intent. 
S. Rep. No. 417, 97th Gong., 2d Sess. at 15-16, reprinted 
in 1982 U.S. Code Oong. & Ad. News 177 [hereinafter 
cited as S. Rep.).2 

2 The Solicitor General argues in his brief that the Senate Report 
"cannot be taken as determinative on all counts," and that the 
statements of Senator Dole must instead "be given particular 
weight." Brief for the United States as Amicus Curiae Supporting 
Appellants at 8 n.12, 24 n.49 [hereinafter cited as Br. for U.S.] 
However, Senator Dole fully endorsed the Committee Report, as is 
clear from the first sentence of his Additional Views: "The Com­
mittee Report is an accurate statement of the intent of S. 1992, as 
reported by the Committee." S. Rep. at 193 (Additional Views of 
Senator Dole). See also S. Rep. at 199 (Supplemental Views _of 
Senator Grassley, co-sponsor of Dole compromise amendment) ("I 
am wholly satisfied with the bill as reported by the Committee and 
I concur with the interpretation of this action in the Committee 
Report"). 

Contrary to the Solicitor General's contention, the Senate Report 
must be regarded as an authoritative pronouncement of legislative 
intent, since it was endorsed by the supporters of the original bill, 
as well as by the proponents of the compromise amendment. See 
Chrysler Corp. v. Brown, 441 U.S. 281, 311 (1979) ; Duplex Print­
ing Press Co. v. Deering, 254 U.S. 443, 474 (1920). The Solicitor 
General's extensive reliance on the statements of witnesses before 
the Senate Committee on the Judiciary is unsupportable: "Remarks 
... made in the course of legislative debate or hearings other than 
by persons responsible for the preparation or the drafting of a 
bill, are entitled to little weight . .. " Ernst & Ernst v. Hochfelder, 
425 U.S. 185, 203 n.24 (1976). Se·e also National Woodwork Mfrs. 
Assoc. v. N.L.R.B ., 385 U.S. 612, 639-40 (1967) ; N.L.R.B. v. Fruit 
& Vegetable Packers, 377 U.S. 58, 66 (1964); United States v. 
Calamaro, 354 U.S. 351, 357 n.9 (1957). 

The Solicitor General's position is a radical departure from the 
previous reliance by the Justice Department on the Senate Report 
as the authoritative vehicle for interpreting Section 2. References 
to the Report are found throughout the government argument op­
posing the at-large election system in Dallas County, Alabama 
(Brief for Appellant at 20, 25, 26, 27, 35, 38, 41, United States v. 
Dallas County Commission, 739 F.2d 1529 (11th Cir. 1984), and 
are cited as authority in more than ten pages of its twenty-five 
page argument in United States v. Marengo County Commission, 
Brief for Appellant at 16, 18, 19, 20, 21, 22, 23, 25, 26, 27, 36, 39. 
United States v. Marengo County Commission, 731 F.2d 1546 (11th 
Cir. 1984), cert. denied, 105 S.Ct. 375 (1984). 



6 

The intent of Congress as revealed by the stwtutory 
language and the legislative history of the 1982 amend­
ment to Section 2 makes five things clear. 

First, in enacting a Section 2 results test, Congress in­
tended to eliminate the necessity of demonstrating dis­
criminatory intent to prove a violation. S. Rep. at 27; 
McMillan v. Escambia County (McMillan II), 748 F.2d 
1037, 1041-42 (5th Cir. 1984). 

Second, the results test expressly "restore [ d] the pre­
Mobile legal standard which governed cases challenging 
election systems or practices as an illegal dilution of the 
minority vote," S. Rep. at 27, which Congress understood 
not to require proof of discriminatory intent. This "re­
sults" test was. a statutory codification of the test used 
by this Court in White v. Regester, S. Rep. at 27, and the 
pre-City of Mobile case law, most notably, Zimmer v. 
McKeithen. Accordingly, the pre-City of Mobile cases 
provide a guide as ·to how the statute is to be interpreted. 
S. Rep. at 27; see also United States v. Marengo County 
Commission, 731 F.2d 1546, 1565-66 (11th Cir. 1984), 
cert. denied, 105 S.Ct. 375 (1984). 

Third, Congress intended that proof of a Section 2 
violation should be "based on the totality of the circum­
stances." 42 U.S.C. § 1973 (b). Under this standard, 
plaintiffs are held to a showing that the "political proc­
esses leading to nomination and election were not equally 
open to participation by the group in question-that its 
members had less opportunity than did other residents in 
the district to participate in the political processes and to 
elect legislators of their choice." White, 412 U.S. at 766. 
The typical evidentiary factors which may be used to 
prove that minorities have less opportunity to participate 
in the political process are spelled out in the Sena,te Re­
port.3 

a The Senate Report specified the following constellation of 
factors: 

1. the extent of any history of official discrimination in the 
state or political subdivision that touched the right of the 



7 

Fourth, the evidentiary factors derived from these 
cases are relevant in any judicial inquiry into claims of 
vote dilution. However, the legislative history is clear 
that Congress intended that no one factor should pre­
dominate, and "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." S. Rep. at 29. In­
stead, Section 2 "requires the court's overall judgment, 
based on the totality of the circumstances and guided 
by those relevant factors in the particular case, of 

members of the minority group to register, to vote, or other­
wise to participate in the democratic process; 

2. the extent to which voting in the elections of the state or 
political subdivision is racially polarized; 

3. the extent to which the state or political subdivision has 
used unusually large election districts, majority vote require­
ments, anti-single shot provision, or other voting practices or 
procedures that may enhance the opportunity for discrimina­
tion against the minority group; 

4. if there is a candidate slating process, whether the mem­
bers of the minority group have been denied access to that 
process; 

5. the extent to which members of the minority group in the 
state or political subdivision bear the effects of discrimination 
in such areas as education, employment and health, which 
hinder their ability to participate effectively in the political 
process; 

6. whether political campaigns have been characterized by 
overt or subtle racial appeals; 

7. the extent to which members of the minority group have 
been elected to public office in the jurisdiction. 

Two additional factors of lesser evidentiary significance are 
mentioned: 

whether there is a significant lack of responsiveness on the 
part of elected officials to the particularized needs of the mem­
bers of the minority group; [and] 

whether the policy underlying the state or political subdivi­
sion's use of such voting qualification, prerequisite· to voting, 
or standard, practice or procedure is tenuous. 

S. Rep. at 28-29 {footnotes omitted] 



8 

whether the voting strength of the minority voters is 
. . . 'minimized or canceled out.' " S. Rep. at 29 n.l18, 
quoting Fortson and Burns. 

Fifth, Congress intended Section 2 to reach practices 
that either completely negate or minimize the voting 
strength of minorities. The electoral successes of minor­
ity candidates is one of a number of circumstances 
"which may be considered." 42 U.S.C. 1973 (b). Conse­
quently, "the election of a few minority .candidates does 
not 'necessarily foreclose the possibility of dilution of 
the black vote,' in violation of this section." S. Rep. at 
29 n.115, quo·ting Zimmer, 485 F.2d at 1307. 

Of necessity, the question of the existence of vote dilu­
tion entails an intensely factual inquiry. The standard 
de·veloped by the pre-City of Mobile case law and in­
corporated by Congress into the 1982 amendments pro­
vides a framework that highlights the features that have 
recurred through the various factual settings where vote 
dilution has been found. These factors correspond to 
a paradigmatic setting in which a claim of vote dilution 
incorporates some combination of the following: ( 1) 
structural obstacles to the electoral success of minor­
ities, such as multimember districts, (2) a history of 
discrimination and/ or absence of or minimal minority 
political success, and ( 3) certain behavioral patterns that 
accentuate the racial axis of the vote dilution, such as 
racially polarized voting and racial appeals in electoral 
campaigns. The juxtaposition of the particular factual 
pattern against the paradigm model of how an electoral 
system can operate to cancel out or dilute the exercise 
of the franchise by racial minorities yields the conclu­
sion whether a violation of Section 2 of the Voting 
Rights Act exists. 

B. The District Court's Ultimate Conclusion of Dis­
criminatory Results was Fully Supported by the 
Totality of Circumstances. 

Twenty years of voting rights litigation has imparted 
the clear lesson that certain electoral systems, foremost 



9 

among them multimember districts or at-large elections, 
have shown themselves to have resulted in the illegal 
dilution of minority voting strength with such regu­
larity that, while not per se violative of the Voting 
Rights Act, these systems must elicit from reviewing 
courts a serious presumption of statutory infirmity under 
amended Section 2. In its last full treatment of a con­
stitutional voting rights claim, this Court emphasized 
"the tendency of multi-member districts to minimize 
the voting strength of racial minorities." Rogers v. 
Lodge, 458 U.S. at 627. This Court has repeatedly ruled 
that at-large elections violate the statutory or constitu­
tional rights of minority voters,4 and has directed courts 
fashioning remedial decrees to avoid the implementation 
of such electoral systems."' 

A wealth of social scientific literature confirms the 
"conventional hypothesis" that at-large elections con­
stitute a significant political disadvantage for minority 
candidates and voters. See Davidson and Korbel, At­
Large Elections and Minority Group Representation, 43 
J. Politics 982, 994-95 (T'able 1) (1981) (listing empir­
ical studies) .'6 Dissenting from the application of the 
constitutional intent standard in Rogers v. Lodge, Justice 

4 See Rogers, supra; White, supra; Perkins· v. Matthews, 400 
U.S. 379, 389 (1971) (at-large elections described as method for 
whites to retain electoral control after black voter registration 
increase in wake of Voting Rights Act). In addition, sixteen of 
the 23 appellate court cases cited in the Senate Report involved 
challenges to at-large elections, of which ten were successful. S. 
Rep. at 23 n. 78. 

6 Connor v. Johnson, 402 U.S. 690, 692 (1970) ("when district 
courts are forced to fashion apportionment plans, single-member 
districts are preferable to large multi-member districts as a general 
matter.") ; see also Wallace v. House, 425 U.S. 947 (1976); East 
Carroll Parish Board v. Marshall, 424 U.S. 636, 639 (1976) ; 
Chapman v. Meier, 420 U.S. 1, 18 (1975). 

13 See also E. Banfield & J. Wilson, City Politics 91-96, 303-308 
(1963); A. Karnig & S. Welch, Black Representation and Urban 
Policy 99 (1980) ; Berry and Dye, The Discriminatory Effects of 
At-Large Elections, 7 Fla. St. U. L. Rev. 85, 93 (1979); Engstrom 



10 

Stevens focused on the inherent tendency of at-large sys­
tems to maximize majority political power and re­
emphasized this Court's skeptical view of multimember 
districting. 458 U.S. at 632, 637-38 & n.16 (Stevens, J., 
dissenting) (quoting 1 J. Kent, Commentaries on Amer­
ican Law 230-31 (12th ed. 1873) ) . 

The facts in this case present a clear example of the 
interaction between the at-large structural impediment 
and the history and behavioral patterns of discrimina­
tion in North Carolina.7 The district court's findings of 
fact are replete with documentation of the discrimina­
tion against blacks in North Carolina, not only with 
respect to the right to vote, but also in housing, educa­
tion, employment, health, and other public and private 
facilities. 590 F. Supp. at 359-64. The court noted past 
use of literacy tests, poll taxes, anti-single shot voting 
laws, numbered seat requirements, and other means to 
deny blacks the opportunity to register and vote, includ­
ing the continued use of a majority vote requirement. 

and McDonald,. The Election of BlackS' to City Councils, 75 Am. 
Pol. Sci. Rev. 344 (1981) ; Jones, The Impact of Local Election 
Systems on Black Political Representation, 11 Urb. Aff. Q. 345 
(1976) ; Karnig, Black Representation on City Councils, 12 Urb. 
Aff. Q. 223-242 (1976) ; Kramer, The Election of Blacks to City 
Councils, 1971 J . of Black Studies 443-49 (1971) ; Latimer, Black 
Political Representation. in Southern Cities, 15 Urb. Aff. Q. 65, 
71-82 (1979) ; Robinson and Dye, Reformism and Black Repre­
sentation on City Councils, 59 Soc. Sci. Q. 133-141 (1978) ; Sloan, 
"Good Government" and the Politics of Race, 17 Social Problems 
161, 170-73 (1969). 

In addition, studies have documented the impediments against 
black representation in southern legislatures. created by at-large 
elections, and the amelioration of the discriminatory effects follow­
ing the elimination of multimember districts. See, e.g., Parker, 
Racial Gerrymandering and Legislative Reapportionment in C. 
Davidson, Minority Vote Dilution 88 (1984). 

7 Amici emphasize that six of the seven challenged districts use 
at-large elections. The remaining district, Senate District No. 2, 
was created by extensive realignment and resulted in the division 
of a black population concentration, thereby precluding an effective 
voting majority. 590 F. Supp. at 358. 



11 

The court found that black voter registration rates re­
mained depressed relative to whites "because of the long 
period of official state denial and chilling of black citi­
zens' registration efforts." Id. at 361. Also as a con­
sequence of the history of discrimination, blacks con­
tinue to suffer from a lower socioeconomic status which, 
the court found, continues to impair their ability to par­
ticipate on an equal basis in the political process. Id. at 
361-63. The historic use of racial appeals in political 
campaigns was found to persist in North Carolina, and 
to continue to affect the capability of blacks to elect can­
didates of their choice. ld. at 364. Finally, voting was 
found to be severely racially polarized in the challenged 
districts, id. at 367-72, and black candidates to remain 
at a disadvantage in terms of relative probability of 
success in running for office. ld. at 367. 

In sum, with the single exception of denial of access 
to a candidate slating process, the district court found 
that all of the factors specified in the Senate Report 
existed or were present in the recent past in the chal­
lenged districts. More important, the persistent effect 
of each fa.ctor, even in isolation, was found to have a 
direct and appreciable impact on present minority polit­
ical participation which continued to disadvantage blacks 
relative to whites. In light of these findings of fact, 
the district court properly concluded that the signposts 
for vote dilution drawn from the case law and legisla­
tive history of Section 2 all pointed to the dilution of 
minority voting strength in the multimember districts 
and the single-member Senate district. 

II. THE DISTRICT COURT DID NOT ERR IN CON­
CLUDING THAT THE ELECTION OF SOME MI­
NORITY CANDIDATES DID NOT ALTER THE 
HISTORIC PATTERN OF LACK OF OPPORTU­
NITY FOR MINORITY VOTERS, NOR DID IT 
ADOPT A PROPORTIONAL REPRESENTATION 
STANDARD. 

Congress drew upon White and Zimmer as model judi­
cial interventions to remove structural barriers that im-



12 

peded minority access to the political process. It bears 
emphasis that many of the factors focused upon in White 
and its progeny are not in themselves either illegal or 
unconstitutional but may nonetheless, in their aggregate, 
trigger the need for remedial intervention.8 

Appellants' arguments before this Court would defeat 
the overall inquiry into the structures, practices and be­
haviors affecting minority political opportunity in two 
critical ways: first, appellants would have the multi­
factored White/ Zimmer analysis negated by the episodic 
election of black candidates, and second, appellants seek 
to introduce an intent standard into the well-developed 
concept of racially polarized voting. 

A. The Election of Some Black Officials Did Not Dis­
prove Lack of Equal Opportunity to Elect Minority 
Officials. 

Appellants contend that "the degree of success at the 
polls enjoyed by black North Carolinians" distinguishes 
this suit from prior vote dilution cases and is sufficient 
"to entirely discredit the plaintiffs' theory that the pres­
ent legislative districts deny blacks equal a,ccess to the 
political process." Br. of Appellants at 24. Similarly, the 
Solicitor General asserts that the challenged multimem­
ber districts have "apparently enhanced-not diluted­
minority voting strength." Br. for U.S. at 23. Both 
Appellants and the Solicitor General cite the extent of 
claimed minority success as a principal reason for over­
turning the district court. This argument is wrong as 
a matter of law and fact. 

As previously stated, the legislative history is clear 
that Congress intended that a Section 2 violation should 

s "[T.] he facts in White set the contours for the puzzle, but the 
blank spaces could be filled in with different pieces ... " Hartman, 
Racial Vote Dilution and Separation of Powers: An Exploration 
of the Conflict Between the Judicial "Intent" and the Legislative 
"Results" Standards, 50 Geo. Wash. L. Rev. 689, 699 (1982). See 
also Parker, The "Results" Test of Section 2 of the Voting Rights 
Act: Abandoning the Intent Standard, 69 Va.L.Rev. 155 (1983) . 



13 

depend upon "the totality of the circumstances," and the 
election of minority candidates in challenged districts 
does not, in itself, foreclose a finding of vote dilution. 
S. Rep. at 29 n.115. Thus, the degree of minority elec­
toral success is "one circumstance which may be con­
sidered . . ." 42 U.S.C. 1973 (emphasis added). See 
also S. Rep. at 29 ("there is no requirement that any 
particular number of factors be proved, or that a major­
ity of them point one way or the other."). Indeed the 
proviso in Section 2 '9 was enacted in response to con­
cerns that a results test would devolve into a standard 
:focused solely on the extent of minority electoral success. 

The two principal cases cited by the Senate Report, 
White and Zimmer, both provide direct precedent for the 
district court's ruling that the election of minority can­
didates does not necessarily foreclose a finding of vote 
dilution. In White, this Court determined on facts almost 
identical to the present case that multimember legisla­
tive districts in Dallas and Bexar Counties, Texas, denied 
minority voters equal opportunities to elect candidates 
of their choice notwithstanding that two blacks and five 
Mexican-Americans had been elected to the Texas legis­
lature from those districts. 412 U.S. at 766, 768-69. 
Similarly, in Zimmer, the Fifth Circuit found vote dilu­
tion in at-large, county-wide voting despite the election 
of three black candidates after the case was tried.10 

9 "Provided, that nothing in this section establishes a right to 
have members of a protected class elected in numbers equal to 
their proportion in the population." 42 U.S.C. § 1973. 

10 "[W]e cannot endorse the view that the success of black candi­
dates at the polls necessarily forecloses the possibility of dilution 
of the black vote. Such success might, on occasion, be attributable 
to the work of politicians, who, apprehending that the support of a 
black candidate would be politically expedient, campaign to insure 
his election. Or such success might be attributable to political 
support motivated by different considerations-namely that elec­
tion of a black candidate will thwart successful challenges to elec­
toral schemes on dilution grounds. In either situation, a candidate 
could be elected despite the relative political backwardness of black 
residents in the electoral district. Were, we to hold that a minority 



14 

Numerous pre-City of Mobile cases, which Congress in­
tended to govern Section 2, establish the proper legal 
standard that, where other evidence of minority vote 
dilution is present, the election of minority candidates 
does not foreclose a finding of a voting rights vio1ation.U 
Courts construing Section 2, as amended, have reached 
the same conclusion.12 

The reasoning of these cases should be apparent. Un­
der at-large voting, the election processes can easily be 
manipulated by the white voting majority to achieve any 
desired result, and the election of minority candidates 
alone is not determinative of whether minority voters 
enjo~ed a genuine opportunity to elect candidates "of 
their choice." Under certain circumstances, notably the 
pendency of a challenge to at-large elections, the election 

candidate's success at the polls is conclusive proof of a minority 
group's access to the political process, we would merely be· inviting 
attempts to circumvent the Constitution. This we choose not to do. 
Instead, we shall continue to require an independent consideration 
of the record." 485 F .2d at 1307. 

11 Cross v. Baxter, 604 F.2d 875, 885 (5th Cir. 1979) ("district 
court erroneously held that the election of a single black official 
foreclosed any possible dilution claims"); United Sta.tes v. Board 
of Supervisors of Forrest County, 571 F.2d 951, 956 (5th Cir. 
1978) ; Kirksey v. Board of Supervisors of Hinds County, 554 F.2d 
139, 149 n.21 (5th Cir. 1977), cert. den. 434 U.S. 877 (1977) ; 
Graves v. Barnes (Graves II), 378 F. Supp. 640, 648, 659 (W.D. 
Tex. 197 4), vru' d on other grounds sub nom. White v . Reg ester 
(White II), 422 U.S. 935 (1975); Wallace v. House, 377 F. Supp. 
1192, 1197 (W.D. La. 1974), aff'd in part and rev'd in part on other 
grounds, 515 F.2d 619 (5th Cir. 1975), vac'd om other grounds, 
425 U.S. 947 (1976) ; Beer v . United States, 374 F. Supp. 363, 398 
n.295 (D.D.C. 1974), vac'd on other grounds, 425 U.S. 130 (1976) ; 
Yelverton v. Driggers, 370 F. Supp. 612, 616 (S.D. Ala. 1974). 

12 See Ketchum v. Byrne, 740 F.2d 1398, 1405 (7th Cir. 1984), 
cert. denied, 86 L.Ed.2d 692 (1985) ; Marengo County, 731 F .2d 
at 1572; NAACP v. Gadsden County School Bd., 691 F .2d 978 (11th 
Cir. 1982) ; Sierra v. El Paso Ind. School Dist., 591 F. Supp. 802, 
810 (W.D. Tex. 1984) ; Maior v. Treen, 574 F. Supp. 325, 351 
(E.D. La. 1983); Political Civil Voters Organization v. Terrell, 565 
F. Supp. 338, 342 (N.D. Tex. 1983). 



15 

of hand-picked minority candidates might be "politically 
expedient" to the white majority or entrenched political 
forces. Zimmer, 485 F.2d at 1307. Similarly, such elec­
tion of minority candidates might well be part of an 
effort to moot claims of minority vote dilution and to 
"thwart challenges to election schemes on dilution 
grounds." ld. 

In rushing to herald the electoral success of North 
Carolina blacks, appellants and the Solicitor General 
overlook the critical ,findings of fact of the district court. 
The statewide figures reveal that there . were never more 
than four blacks in North Carolina's 120-member House 
of Representatives between 1971 and 1982, and never 
more than two blacks in the 50-member State Senate 
from 1975 to 1983. 590 F. Supp. at 365. In the· period 
from 1970 to 1982, black Democrats in general elections 
within the challenged districts lost at three times the 
rate of white Democrats. T'r. 114. 

The district court's findings with respect to the 1982 
elections showed that there were "enough obviously aber­
rational aspects in the most recent elections," 590 F. 
Supp. at 367, to disprove the contention that blacks were 
not still disadvantaged in the multi-member districts 
at issue. Although black Democratic candidates did en­
joy some degree of success, it did not nearly rival the 
success of white Democratic candidates, not a single one 
of whom lost in the general elections. Tr. 114, 115. In 
House District 36, a black Democrat won one of the 8 
seats in the district in 1982. Since there were only seven 
white candidates for the 8 seats in the primary, it was 
a mathematical certainty that a black would win. ld. 
at 369. In House District 23, there were only 2 white 
candidates for 3 seats in the 1982 primary, and the 
plack candidate ran unopposed in the general election, 
but still received only 43% of the white vote. I d. at 370. 
In three other elections prior to 1982, the same black 
candidate won in unopposed races, yet failed to receive 
a majority of white votes in each contest. Id. 



16 

The district court made two critical findings of fact 
concerning the purported electoral successes of blacks in 
North Carolina. First, even in elections where black can­
didates were victorious, witnesses for the plaintiffs and 
defendants alike agreed that the victories were largely 
due to extensive single~shot voting by blacks. t:s Tr. 85, 
181, 182, 184, 1099. Even the defendants' expert witness 
conceded that, "as a. general rule," black voters had to 
single-shot vote in the multimember districts at issue 
in order to elect black candidates. Tr. 1437. Thus the 
district court determined, " [ o] ne revealed consequence 
of this disadvantage is that to have a chance of success 
in electing candidates of their choice in these districts, 
black voters must rely extensively on single-shot voting, 
thereby forfeiting by practical necessity their right to 
vote for a full slate of candidates." 590 F. Supp. at 369. 

Second, the district court also concluded that the evi­
dence at trial showed that in several of the 1982 elec­
tions, "the pendency of this very litigation worked as a 
one-time advantage for black candidates in the form of 
unusual political support by white leaders concerned to 
forestall single-member districting." 590 F. Supp. at 367 
n.27. This is exactly the concern which led the Zimmer 
court to reject assertions identical to those advanced by 
the appellants here. 

In sum, the evidence amply supported the district 
court's conclusion that: 

[T] he success that has been achieved by black candi­
dates to date is., standing alone, too minimal in total 

13 Single-shot voting occurs when minority voters concentrate 
their voting strength on one or a few preferred candidates and 
deliberately fail to exercise their right to cast ballots for other 
candidates in the race. The purpose of single-shot voting is to 
enhance the likelihood of a minority candidate's election by depriv­
ing nonminority candidates of the minority vote; however, it also 
has the effect of completely eliminating any influence minority 
voters might have over the choice of the elected nonminority 
candidates. See City of Rome v. U.S., 446 U.S. 156, 184 n.19 
(1980). 



17 
numbers and too recent in relation to the long his­
tory of complete denial of any elective opportunities 
to compel or even arguably to support an ultimate 
finding that a black candidate's race is no longer a 
significant adverse factor in the political processes of 
the state--either generally or specifically in the areas 
of the challenged districts. 

590 F. Supp. at 367. In reviewing this issue, this Court 
should defer to the "intensely local appraisal of the de­
sign and impact of the . . . multimember districts," 
White, 412 U.S. at 670, which the three-judge district 
court gave the facts of this case. On this issue, appel­
lants' contentions are wrong as a matter of law, and 
the district court's factual findings are supported by 
substantial evidence and are not clearly erroneous.14 

B. Appellants' Claim that the District Court Imposed 
a Proportional Representation Standard Harkens 
Back to the Rejected Arguments Made by Oppo­
nents of the 1982 Amendment to the Voting Rights 
Act. 

Without doubt the most inflammatory claim that can 
be raised in a vote dilution case is the charge of pro­
portional representation. Cf. United Jewish Organiza­
tions v. Carey, 430 U.S. 144, 156-1.67 ( 1977). Appel­
lants seek to obscure the district court's careful exam­
ination of all the White / Zimmer factors by raising the 
blazing charge that the district court "flatly" stated a 
standard of "guaranteed proportional representation." 
Br. for Appellants at 19. In appellants' eyes, any ref­
erence to the actual proportions of blacks in North Caro­
lina as compared to black electoral success reveals the 
entire factual inquiry to have been a subterfuge designed 
to conceal an imposition of proportional representation. 
The district court opinion, however, expressly disavows 
any contention that a violation of Section 2 can be estab­
lished by "the fact that blacks have not been elected 
under a challenged districting plan in numbers propor-

14 See Pullman-Standard v. Swint, 456 U.S. 273, 287 (1982); 
Fed. Rule Civ. Pro. 52 (a). 



r8 
tional to their percentage of the population." 590 F. 
Supp. at 355. 

Consideration of minority electoral success is one of 
many evidentiary factors which the case law and legis­
lative history of the Voting Rights Act specify as proper 
grounds for judicial examination. The leap from the 
evidentiary weighing of the rate of success to an ipso 
facto creation of an entitlement to proportional repre­
sentation is derived from the arguments made by op­
ponents of the 1982 Amendments to the Voting Rights 
Act, namely that there is no intelligible distinction be­
tween a results test and proportional representation.15 

The argument that consideration of the rate of electoral 
success as one evidentiary factor inevitably yields pro­
portional representation was firmly rejected both by 
the sponsors of the original amendment and the pro­
ponents of the Dole compromise. See, e.g., S. Rep. at 33 
(" [T] he Section creates no right to proportional repre­
sentation for any group"); id. at 194 (Additional Views 
of Senator Dole) ("I am confident that the 'results' test 
will not be construed to require proportional representa­
tion") . Since the district court properly considered the 
totality of circumstances under the mandated legal 
standards, the efforts to persuade this Court that it in 
fact required proportional representation can only be 
understood as an invitation to embrace the views of 
opponents of the 1982 amendments and should categor­
ically be declined. 

Hi See e.g., 1 Voting Rights Act: Hearings on S . 53 et al. Before 
the Subcomm. on the Constitution of the Senate Comm. on the 
Judiciary, 97th Cong., 2d Sess. 3 (1982) (Opening Statement of 
Senator Orrin Hatch) ("In short, what the 'results' test would do is 
to establish the concept of 'proportional representation' by race as 
the standard by which courts evaluate electoral and voting deci­
sions"). A full discussion of the proportional representation objec­
tions of the legislation's opponents can be found in the Senate 
Subcommittee's Report. See S. Rep. at 139-147 (Voting Rights 
Act: Report of the Subcomm. on the Constitution); see also id. at 
186-87 (Attachment B of Subcommittee Report: Selected 'Quotes 
on Section 2 and Proportional Representation). 



19 

III. APPELLANTS SEEK TO NULLIFY THE 1982 
AMENDMENT TO THE VOTING RIGHTS ACT BY 
FORECLOSING THE JUDICIAL INQUIRY INTO 
THE TOTALITY OF THE CIRCUMSTANCES 
WHICH GIVE RISE TO CLAIMS OF VOTE DILU­
TION. 

A. The Use of Statistical Analysis and Lay Witnesses 
to Establish Racially Polarized Voting Without 
Any Inquiry Into Voter Motivation Is Fully Sup­
ported by the Case Law and the Legislative History 
of Section 2. 

Appellants argue that the district court employed an 
erroneous legal standard in concluding that the facts of 
this case showed a high degree of racially polarized vot­
ing. They contend that the district court adopted a per 
se rule that racial bloc voting occurs whenever less than 
50 percent of the white voters cast ballots for black can­
didates. Br. for Appellants at 36.16 

Racially polarized voting is a key component of a vote 
dilution claim, as emphasized both by Congress and this 
Court. "In the context of such racial bloc voting, and 
other factors, a particular election method can deny 
minority voters equal opportunity to participate mean­
ingfully in elections." S. Rep. at 33. As this Court 
wrote in Rogers, 

Voting along racial lines allows those elected to ig­
nore black interests without fear of political conse­
quences, and without bloc voting the minority candi­
dates would not lose elections solely because of their 
race. 

458 U.S. at 623. Racially polarized voting, when proven, 
provides a court with a critical evidentiary piece show-

113 The Solicitor General conceded in his brief in support of 
the Jurisdictional Statement that "[a]ppellants' restatement of 
the district court's standard for racial bloc voting is imprecise," 
since "the district court did not state that polarization exists un­
less white voters support black candidates in numbers at or exceed­
ing 50%.'' Br. for the U.S. as Amicus Curiae at 13 n.lO. 



20 

ing the political ostracism of a racial minority. City of 
Rome v. United States, 472 F. Supp. 221, 226 (D.D.C. 
1979), aff'd, 446 U.S. 156 (1980). When combined with 
either at-large elections or a suspected gerrymander, bloc 
voting provides important confirmation that the poten­
tial structural impediments to minority political oppor­
timity will in fact bar equal opportunity and the ability 
to elect representatives perferred by the minority com­
munity. See Marengo County, 731 F.2d at 1566-67 
(racially polarized voting ordinarily the "keystone" of 
a dilution claim); Nevett v. Sides, 571 F.2d 209, 223 
Ji.16 (5th Cir. 1978), cert. denied, 446 U.S. 951 (1980). 

At bottom, racially polarized voting is that which 
"follow[s] racial lines ... " United Jewish Organiaztions, 
430 U.S. at 166 n.24. Courts construing the 1982 amend­
ment to Section 2 have found racially-polarized voting 
when the facts show a consistent pattern of a majority 
of one race voting opposite to the majority of the other 
race. McMillan II, 748 F.2d at 1043. Whether or not 
a Section 2 violation has been proved depends upon the 
degree of racially polarized voting, i.e., "the extent to 
which voting in the elections of the state or political sub­
division is racially polarized." S. Rep. at 29 (emphasis 
added). 

In the present case, based on evidence presented by ex­
pert witnesses and corroborated by the direct testimony 
of lay witnesses, the district court concluded that "within 
all the challenged districts radally polarized voting ex­
ists in a persistent and severe degree." 590 F. Supp. at 
367. In direct reliance on the language of the Senate 
Report, the district court framed the inquiry in terms of 
"determin [ing] the extent to which blacks and whites 
vote differently from each other in relation to the race of 
the candidate." 590 F. Supp. at 367-68 n.29. The district 
court relied in part on testimony by plaintiffs' expert wit­
ness, Dr. Bernard Grofman, whose comprehensive study 
of racial voting patterns in 53 elections in the challenged 



21 

districts revealed consistently high correlations between 
the number of voters of a specific race and the number of 
votes for candidates of that ra,ce. These correlations were 
so high in each of ~the elections studied that the prob­
ability of occurrence by chance was less than one in 
100,000. 590 F. Supp. at 368. 

The district court analyzed elections in each of the 
challenged districts to conclude that, in each district, 
ra.cial polarization "operates to minimize the voting 
strength of black voters." ld. at 372. This conclusion 
was buttressed by the observations of numerous lay wit­
nesses involved in North Carolina electoral politics. The 
uncontroverted evidence showed that no black candi­
date received a majority of white votes cast in any of the 
53 elections, including those which were essentially un­
contested. Id. Whites consistently ranked black candi­
dates at the bottom of the field of candidates, even where 
those candidates ranked at the top of black voters' prefer­
ences. ld. Given the overwhelming and uncontradicted 
facts of this case, there i~s no question but that racial 
polarization in each district was, as the district court 
properly found, "subs!tantial or severe." 590 F. Supp. at 
372. 

Appellants challenge the methodology utilized by plain­
tiffs' expert witness as being "severely flawed." Br. for 
Appellants at 41. As the district court opinion makes 
clear, that methodology depended upon two distinct types 
of sta,tistical analysis, ecological regression and homoge­
neous precinct analyses. These stJatistical studies were 
further corroborated by the lay testimony of direct par­
ticipants in North Carolina politics. 590 F. Supp. at 367-
68 n.29. 

Appellants contentions run directly contrary to the pre­
ponderance of cases decided prior to City of Mobile, which 
Congress intended the courts to follow, as well as those 
applying Section 2 after its 1982 amendment. In the 
pre-City of Mobile cases, courts relied on statistical or 



22 

non-statistical evidence to establish racially polarized vot­
ing by a showing of a high degree of association between 
the racial composition of the voting precincts and the race 
of the candidate for whom votes were cast. See, e.g., 
Graves v. Barnes, 343 F. Supp. 704, 731 (W.D. Tex. 
1972) (three-judge court), aff'd sub nom. White v. Reges­
ter (polarized voting established by Mexican-Americans 
voting overwhelmingly for candidates of own national 
background and whites voting overwhelmingly for white 
candidates). In conformity with this approach, the eco­
logical or bivariate. regression analysis performed by Dr. 
Grofman compared the votes for minority candidates in 
different precincts with the racial composition of that 
precinct in both racially segregated and racially mixed 
precincts. As the district court observed, the result of 
such a comparison is considered statistically significant 
if the relationship between the variables is sufficiently 
consistent, and substantively significant if it is of a suffi­
cient magnitude to affect the outcome of an election. 590 
F. Supp. at 367-369. See McMillan v. Escambia County 
(McMillan I), 638 F.2d 1239, 1241-42 n.6 (5th Cir. 
1981), aff'd on rehearing, 688 F.2d 960, 966 n.12 (5th 
Cir. 1982), rev'd on other grounds, Escambia County v. 
McMillan, - - U.S. --, 80 L.Ed.2d 36 (1984); Mc­
Millan II, 748 F.2d at 1043 n.12 (affirming the definition 
of bloc voting and related findings made in McMillan I). 
The use of regression analysis to demonstrate the associa­
tion between the racial composition of precincts and vot­
ing patterns is supported by both the pre-City of Mobile 
case law 17 and cases applying Section 2 after its 1982 

17 See Parnell v. Rapides Parish School Board, 425 F. Supp. 399, 
405 (W.D. La. 1976), aff'd, 563 F.2d 180 (5th Cir. 1978), cert. de­
nied, 438 U.S. 915 (1978) (regression analysis demonstrated high 
probability of polarization); Bolden v. City of MobUe, 423 F. Supp. 
384, 388-89 (S.D. Ala. 1976), aff'd, 571 F.2d 238 (5th Cir. 1978), 
rev'd on other grounds, 446 U.S. 55 (1980) (regression analysis 
supported finding of ra:cial polarization). Accord H. Blalock, Social 
Statistics, ch. 17 (2d ed. 1979); Grofman, Migalski, Noviello, The 
'Totality of Circumstances Test' in Section 2 of the 1982 Extension 



23 

amendment.18 

The additional statistical study performed by Dr. 
Grofman, homogeneous precinct analysis (also known as 
"extreme case" analysis), is an accepted statistical method 
comparing the voting patterns in precincts with heavy 
concentrations of one race and other precincts with com­
parable concentrations of another race. See City of Port 
Arthur v. United States, 517 F. Supp. 987, 1007 n.136 
(D.D.C. 1981), aff'd, 459 U.S. 159 ( 1982) . 1~ 

In addition, ample precedent supports the district 
court's reliance on non-statistical evidence to supplement 
the testimony of experts.20 

of the Voting Rights Act: A Social Scie'iliCe Perspective, 7 Lav, 
and Policy 199 (1985). 

18 S ee Jordan v. Winter, 604 F. Supp. 807, 812-813 (N.D. Miss. 
1984), aff'd sub. nom. Mississippi Republican Executive Committee 
v. Brooks, --U.S. --, 83 L.Ed.2d 343 (1984) (bivariate regres­
sion analysis indicated high level of racial polarization); Marengo 
County, 731 F.2d at 1567 n.35 (affirming district court's acceptance 
of regression analysis to show polarization) ; Jones v. City of 
Lubbock, 727 F.2d 364, 380 (5th Cir. 1984) (bivariate regression 
analysis provided strong basis for court's finding of polarization) ; 
NAACP v. Gadsden County School Board, 691 F.2d 978, 983 (11th 
Cir. 1982) (same regression technique used in McMillan I demon­
strated polarization). 

19 See, e.g., Terrell, supra, 565 F. Supp. at 348; Port Arthur, 
supra, 517 F . .Supp. at 1007 n.136. See also Perkins v. City of West 
Helena, 675 F.2d 201, 213 (8th Cir. 1982), aff'd mem. 459 U.S. 801 
(1982); Lipscomb v. Wise, 399 F. Supp. 782, 785-786 (N.D. Tex. 
1975), rev'd on other grounds, 551 F.2d 1043 (5th Cir. 1977), rev'd, 
437 u.s. 535 (1978) 

00 See Major v. Treen, 574 F. Supp. 325, 338 (E.D.La. 1983) 
(testimony of trained political observers considered probative of 
bloc voting); Terrell, supra, 565 F. Supp. at 348; Rome, supra, 472 
F. Supp. at 226-227 (finding testimony of black deponents highly 
probative of bloc voting); Boykins v. Hattiesburg, No. H77-
0062 (C), slip op. at 15 (S.D. Miss., March 2, 1984) ("lay witnesses 
from the White community . . . confirmed that members of the 
White community continue to oppose· and fear the election of 
Blacks to office.") 



24 

B. Appellants and the Solicitor General Seek to Re­
impose an Intent Standard Onto Section 2 Claims 
by Requiring Proof of Motivation of Voters. 

Despite the district court's use of statistical and lay 
witness evidence "to determine the extent to which blacks 
and whites vote differently from each other in relation to 
the race of candidates," 590 F. Supp. at 367-68 n.29, ap­
pellants persist in charging that a per se rule was im­
posed. To the contrary, only after concluding that sub­
stantively significant racial polarization existed in all but 
two of the elections analyzed did the district court note 
that no black candidate had received a majority of the 
white votes cast. The court specifically referred to this 
finding as one of a number of "[a] dditional facts" which 
"support the ultimate finding that severe (substantively 
significant) racial polarization existed in the multi-mem­
ber district elections considered as a whole." Id. at 368 
(emphasis supplied). 

The principal method for measurement of racial po­
larization relied on by the court below was the statisti­
cally significant correlation between the number of voters 
of a specific ra.ce and the number of votes for candidates 
of that race. 590 F. Supp. at 367, 368. The Solicitor 
General's charge that, under the lower court's method­
ology, a "minor degree of racial bloc voting would he suf­
ficient to make out a vi'olation," Br. for U.S. at 29, is 
gravely misleading since it confuses the lower court's 
definition of substantive significance with the court's ini­
tial definition of racial polarization as also requiring 
statistical significance. Contrary to the Solicitor Gen­
eral's conclusion that a "minor degree of racial bloc vot­
ing would be sufficient to make out a violation," Br. for 
U.S. at 29, a low correlation would result in a finding of 
a low extent of pol,arization and would weigh against an 
ultimate conclusion of impermissible vote dilution.21 

21 Thus, the hypothetical situation in which a white candidate 
receives 51% of the white vote and 49% of the black vote and an 



25 

Both the Solicitor General and appellants propose meth­
ods to discount the importance of racial bloc voting by 
requiring proof that racial motivation underlies the dis­
parate voting patterns. Appellants would hold plaintiffs 
to a nightmarish standard of conclusively establishing the 
intent of the electorate by disproving possi:ble motivation 
by "any other factor [besides race] that could have in­
fluenced the election." Br. for Appellants at 42. The 
Solicitor General similarly advocates a standard requir­
ing plaintiffs to show that " 'minority candidates . . . 
lose elections solely because of their race.'" Br. for U.S. 
at 31 (quoting Rogers v. Lodge). This standard, it is 
argued, would render racial bloc voting "largely irreie­
vant," id.; if a losing black candidate receives some un­
specified amount of white support, this would demon­
strate that motivational f,actors other than race play a 
role in the election. 

Congres'S has made it plain that Section 2 plaintiffs are 
no longer required to ascribe nefarious motives to the 
individuals or community responsible for discriminatory 
election results; thus, it is immaterial whether white 
voters refuse to vote ror bla,ck candidates "solely because 
of race" or because of some other factor closely associated 
with race. The impact of racial bloc voting on minority 
political participation is the same regardless of the ex-

opposing black candidate gets the reverse would clearly not con­
stitute severe polarization, as the Solicitor General contends. See 
Br. for U.S. at 29. In fact, since such a disparity would not be 
statistically significant, it would not constitute racial polarization 
at all. The suggestion that the district court's definition of racial 
polarization would invalidate numerous electoral schemes across the 
country, see id. at 30, conveniently ignores the fact that the court's 
correlation analysis correctly focused on "the extemt to which 
voting ... is racially polarized." S. Rep. at 29 (emphasis supplied) . 
Racial ,polarization is properly evaluated as a question of degree, 
and not as a dichotomous characteristic which is legally conclusive 
if present and irrelevant in all other cases. 



26 

planation or motivation for that phenomenon.22 In the 
presence of other White/ Zimmer factors, if white voters 
consistently shun black candidates for reasons other than 
race, the result is still that the black community is effec­
tively shut out of the political process.23 In delineating 
the factors relevant to a showing of unequal opportunity 
to participate in the political process, Congress relied 
heavily on federal Courts of Appeals' interpretations of 
White, none of which adopted a definition of racial polari­
zation that supports the standard urged here-in fact, 
most of them required no formal proof of polarization 
whatsoever.24 Moreover, last Term, this Court rejected 
the ·argument that racial motivation of voters casting bal­
lots for candidates of their own race must be established 
to prove racially polarized voting. Mississippi Republican 
Exf?-cutivf?- Committef?- v. Brooks,-- U.S.--, 83 L .Ed. 

22 See Engstrom, The Reincarnation of the' Intent Standard: 
Federal Judges and At-Large Election Cases, 28 Howard L.J. No. 2 
(1985) (forthcoming). 

23 This point is a1so responsive to appellants' objections to the 
statistical methodology relied upon by the district court, which 
was characterized by appellants' own expert witness as a standard 
methodology for measuring racial voting polarization. Tr. at 1445. 
It simply does not matter whether "race is the only explanation 
for the correspondence between variables." Appellants' Brief at 42. 
Where differential voting along racial lines exists, for whatever 
combination of reasons, the result in the context of structural im­
pediments such as at-large or multimember district elections can 
be a dilution of the minority vote which renders minorities unable 
to elect representatives of their choice. This result is a violation 
of the Voting Rights Act regardless of the existence or nonexistence 
of proof of racial animus on the part of whites who fail to vote 
for blacks . 

. 24 See, e.g., Ferguson v. Winn Parish Policy Jury, 528 F .2d 592 
(5th Cir. 1976); Robinson v. Commissioners Court, 505 F.2d 674 
(5th Cir. 1974); Moore v. Leflore County Bd. of Election Comm's, 
502 F.2d 621 (5th Cir. 1974); Turner v. McKeithen, 490 F.2d 191 
(5th Cir. 1973) . The original Zimmer factors themselves did not 
even include racially polarized voting. See Zimmer, 485 F .2d at 
1305. 



27 

2d 343.25 It should likewise reject the argument in this 
case. 

IV. CLAIMS OF VOTE DILUTION, LIKE ALL CLAIMS 
OF AN ABRIDGMENT OF THE FRANCHISE, ARE 
ENTITLED TO SPECIAL JUDICIAL SOLICITUDE. 

Based upon an exhaus!tive review of the totality of cir­
cumstances involved in the North Carolina legislative 
elections, the district court unanimously concluded, under 
the statutory results test, that the legislative redistrict­
ing abridged the voting rights of blaeks. Of particular 
significance, the court detailed the continued taint of dis­
crimination upon all walks of North Oarolina's civil life. 
As the Voting Rights Act and other pieces of civil rights 
legislation make clear, the political processes may pro­
vide critical relief for the victims of past and continuing 
discrimination~providing that those channeis are open to 
victimized minorities. 

The Voting Rights Act sets out to remove structural 
barriers to minority access to political processes in order 
to facilitate the removal of the vestiges of discrimination. 
The Act corresponds to a heightened standard of judicial 
scrutiny set down by this Court nearly half a century ago: 

[P] rejudice against discrete and insular minorities 
may be a special condition ... curtailing the opera­
tion of those political processes ordinarily to be re­
lied upon to protect minorities, and [8o] may call for 
a correspondingly more searching judicial inquiry. 

25 Defendants, represented by the same counsel as at present, 
argued that, "The use of a regression analysis which correlates 
only racial make-up of the precinct with race of the candidate 
ignores the reality that race . . . may mask a host of other ex­
planatory variables. [Jones v. City of Lubbock, 730 F.2d 233, 235 
(5th Cir. 1984) (Higginbotham, J., concurring).]" Jurisdictional 
Statement, Allain v. Brooks, No. 83-2053, at 12-13. This Court 
summarily affirmed the district court's decision in that case and, 
therefore, "reject[ed] the specific challenges presented in the state­
ment of jursidiction," Mandell v. Bradley, 432 U.S. 173, 176 (1977). 



28 

United States v. Carolene Products Co., 304 U.S. 144, 152 
n.4 ( 1938) . Foremost among the rights specified by what 
Justice Powell has termed "the most celebrated footnote 
in consUtutional l1aw," 26 is the right to vote. ld., citing 
Nixon v. Herndon, 273 U.S. 536 (1927) and Nixon v. 
Condon, 286 U.S. 73 ( 1931 ) . This Court has repeatedly 
stressed the need for judicial vigilance in claims of vote 
dilution or abridgment, as set forth in the Carolene Prod­
ucts footnote: 

Undoubtedly, the right of suffrage is a fundamental 
matter in a free and democratic society. Especially 
since the right to exercise the fmnchise in a free and 
unimpaired manner is preservative of other basic 
civil and political rights, any alleged infringment of 
the right to vote must be carefully considered and 
meticulously scrutinized. 

Reynolds v. Sims, 377 U.S. 533, 561-562 (1964); see also 
Harper v. Virginia State Bd. of Elections, 383 U.S. 663 
(1966); Yick Wo v. Hopkins, 118 U.S. 356 (1886). 

The right to vote is listed first in the Carolene Prod­
ucts footnote among those rights that may warrant 
" ... more exacting judicial scrutiny ... ," since in­
fringements on this right restrict "those political proc­
esses which can ordinarily be expected to bring about 
repeal of undesirable legislation . . ." 304 U.S. at 152 
n.4. Similarly, Congress has recognized that the right to 
vote "includes the right to have the vote counted at full 
value without dilution or discount . . ." S. Rep. at 19 
(citing Reynolds, 377 U.S. at 555 n.29). As this Court 
concluded in White v. Regester, where the totality of cir­
cumstances indicate that minority citizens have not been 
able to "enter into the political process in a reliable and 
meaningful manner," court remedies are indispensable to 
bring the minority community into "the full stream of 

26 Powell, J., Carolene Products Revisited, 82 Col. L. Rev. 1087 
(1982). 



29 

political life ... " 412 U.S. at 767, 769. In incorporating 
White and its progeny into the statutory results test, Con­
gress repeatedly emphasized the importance of keeping 
political processes equally open to minorities: 

Section 2 protects the right of minority voters to be 
free from election practices, procedures, or methods 
that deny them the same opportunity to participate 
in the political process as other citizens enjoy .... 

The requirement that the political processes leading 
to nomination and election be 'equally open to par­
ticipation by the group in question' extends beyond 
formal or official bars to registering and voting or 
maintaining a candidacy. 

S. Rep. at 28, 30. 

So long as the paths to political success remain closed, 
blacks remain the "dis·crete and insular" minorities of the 
Carolene Products footnote to whom a special measure of 
judicial solicitude is owed. See Ackerman, Beyond Caro­
lene Products, 98 Harv. L. Rev. 713, 733-37 (1985) (need 
for political success for minorities to transcend "pariah" 
role in political process). Conversely, "representation­
reinforcing" 27 judicial intervention is the most efficacious 
manner by which this Court may insure that the goals of 
two de·cades of statutory ·civil rights litigation may one 
day be met. 

27 J. Ely, Democracy and Distrust, 101-103, 117 (1980). See also 
id. at 103: 

Malfunction occurs when the process is undeserving of trust, 
when (1) the ins are choking off the channels of political 
change to ensure that they will stay in and the. outs will stay 
out, or (2) though no one is actually denied a voice or a vote, 
representatives beholden to an effective majority are sys­
tematically disadvantaging some minority out of simple hos­
tility or a prejudiced refusal to recognize commonalities of 
interest, and thereby denying that minority the protection 
afforded other groups by a r epresentative system. 



30 

CONCLUSION 

For the foregoing reasons, amici urge that the judg­
ment of <the district court be affirmed. 

Respectfully submitted, 

JAMES ROBERTSON 
HAROLD R. TYLER, JR. 

Co-Chairmen 
NORMAN REDLICH 

Trustee 
WILLIAM L. ROBINSON 
FRANK R. PARKER * 
SAMUEL lSSACHAROFF 
PATRICIA M. HANRAHAN 

LA WYERS' COMMITTEE FOR 
CIVIL RIGHTS UNDER LAW 

1400 'Eye' Street, N.W. 
Suite400 
Washington, D.C. 20005 
(2.02) 371-1212 

SAMUEL RABINOVE 
RICHARDT. FOLTIN 

THE AMERICAN JEWISH 
COMMITTEE 

165 East 56 Street 
NewYork, NewYork10022 
(212) 751-4000 

Attorneys for Amici Curiae** 

* Counsel of Record 

** The attorneys for amici gratefully acknowledge the assistance 
of Martin Buchanan and Roger Moore, students at Harvard Law 
School, on the brief. 










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