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

    No. 83-1968 

IN THE 

~upr.rmr Olnurt nf tl]r lltuitrb ~tntrs 
OCTOBER TERM, 1985 

LACY H. THORNBURG, et al., 
AppeUants, 

v. 

RALPH GINGLES, et al., 
Appellees. 

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

MOTION FOR LEAVE TO FILE BRIEF AND 
BRIEF FOR COMMON CAUSE AS AMICUS CURIAE 

August 30, 1985 

WILLIAM T. LAKE 

Counsel of Record 
ADRIENNE MASTERS 

WILMER, CUTLER & PICKERING 
1666 K Street, N.W. 
Washington, D.C. 20006 
(202) 872-6000 

Counsel !o1· Amicus Curiae 
Common Cause 





TABLE OF CONTENTS 
Page 

TABLE OF AUTHORITIES ···----------- ----------------------------- iii 

MOTION FOR LEAVE TO FILE BRIEF ------------ -- ------ vii 

INTEREST OF THE AMICUS AND SUMMARY OF 
· ARGUMENT -- ----· --------- --- ------------ --------·----·-- --------- -----------·- 1 

I. THE 1982 AMENDMENT TO THE VOTING 
RIGHTS ACT EXPRESSED CONGRESS' IN­
TENT TO REMEDY DILUTION OF RACIAL 
MINORITY VOTING ST'RENGTH CAUSED 
BY THE CONTINUING EFFECTS OF PAST 
DISCRIMINATION ------------------ -----------------·----- ------- 4 

II. SECTION TWO'S ASSURANCE OF EQUAL 
"OPPORTUNITY" FOR RACIAL MINORI­
TIES TO "ELECT REPRESENTATIVES OF 
THEIR CHOICE" REQUIRES CONSIDERA­
TION OF A GROUP'S DIRECT VOTING 
STRENGTH AND OF ITS ABILITY TO PAR­
TICIPATE EFFECTIVELY IN COALITION 
POLITICS ---------------- -- --------- --- ------ -------- -- --- -- ---- ---- --- -- 7 

A. Section Two Is Designed to Protect the Vot-
ing Strength of Minorities as a Group_____ ___ 7 

B. The Factors Identified in the Legislative His­
tory Address the Ability of Racial Minorities 
to Exercise Direct Voting Strength and to 
Build Coalitions to Influence Elections in the 
Absence of Numerical Majorities __________________ 9 

III. THE LAWFULNESS OF A CHALLENGED 
PRACTICE SHOULD BE DETERMINED ON 
THE BASIS OF ITS IMPLICATIONS FOR 
THESE TWO MEANS OF INFLUENCING 
ELECTORAL OUTCOMES --------------------------- ------- 13 

(i) 



ii 

TABLE OF CONTENTS-Continued 

A. A Single-Member Districting Scheme That 
"Fractures" or "Packs" a Racial Group's 
Direct Voting Strength Should Be Unlawful 
Unless Other Factors Indicate That the Group 
Can Participate Effectively in the Coalition-

Page 

Building Process ---- -- -------- ------------ ------ ------·----··· 13 

B. Multimember Districts That Subsume Large 
Minority Populations Dilute the Direct Vot­
ing Power of Such Groups and Should Be 
Closely Scrutinized -- ---- -- -------- -- -- ---------------- -- -- -- 18 

1. Multimember Districts Inherently Dilute 
the Direct Voting Strength of Minorities.. 18 

2. -The Need for Proof of Racial Polarization 
or Other Factors Impairing a Minority's 
Ability to Build Coalitions Should Be 
Less Where Concentrations of Minority 
Voters are Subsumed in Multimember 
Districts __ __ __________ ______ __ ____ __ ____ __ ____ ____ ____ ____ __ __ 22 

IV. APPLYING THESE PRINCIPLES, THE 
COURT SHOULD AFFIRM THE JUDGMENT 
BELOW ---- -- -- --- --------- -------- --- ------------------- -- --- ----- -------- 23 

CONCLUSION ·--- ---- ------------ ---- --------- --- ----- --------------------- ------ - 28 



iii 

TABLE OF AUTHORITIES 
CASES: Page 

Burns v. Richardson, 384 U.S. 73 (1966) -------------- 14 
Chapman v. Meier, 420 U.S. 1 (1975) ---- ------------- --- 20 
City of Mobile v. Bolden, 446 U.S. 55 (1980) .. ..4, 16, 19, 22 
City of Rome v. United States, 446 U.S. 156 

( 1980) ·------------------------·---------------------------------------------- 10, 21 
Connor v. Finch, 431 U.S. 407 (1977) -------------------- 19, 20 
Dove v. Moore, 539 F.2d 1152 (8th Cir. 1976) ________ 22 
Fortson v. Dorsey, 379 U.S. 433 (1965) ------------------ 19 
Gaffney v. Cummings, 412 U.S. 735 (1973) ------------ 8 
Gomillion v. Lightfoot, 364 U.S. 339 (1960) _________ 14 
James v. City of Sarasota, No. 79-1031-Civ-T-GC 

(D.C. Fla. Jan. 25, 1985) h----------- ~------ - ------------------ 22 
Jones v. City of Lubbock, 727 F.2d 364 (5th Cir. 

1984) ---------- ------------------------------------------------------- --------5, 12, l9 
Karcher v. Daggett, 462 U.S. 725 (1983) __ ____ __ ___ ____ _ 8 
Ketchum v. Byrne, 740 F .2d 1398 (7th Cir. 1984), 

cert. denied sub nom. City Council v. Ketchum, 
105 S. Ct. 2673 (1985) ----- ----------- --------------------------- 10, 15 

Kirksey v. Board of Supervisors, 554 F.2d 139 (5th 
Cir.), cert. denied, 434 U.S. 968 (1977) ___________ 12, 15, 16 

Lee County Branch of NAACP v. City of Opelika, 
748 F.2d 1473 (11th Cir. 1984) ·---------------------------- 12 

Major v. Treen, 574 F. Supp. 325 (E.D. La. 1983) __ 5, 15 
McMillan v. Escambia County, 748 F.2d 1037 (5th 

Cir. 1984) -------- ------------------------------------·-- -------- ---------- 7, 15 
NAACP, Inc. v. City of Sta.tesville, 606 F. Supp. 

569 (W.D.N.C. 1985) ·------------------------------------------- 22 
NAACP v. Gadsden County School Board, 691 F.2d 

978 (11th Cir. 1982) ·- ------------------------------------------- -- 17 
Perkins v. City of West Helena, 675 F.2d 201 (8th 

Cir.), aff'd, 459 U.S. 801 (1982) -- --------- --------------- 15 
Reynolds v. Sims, 377 U.S. 533 (1964) -------------- ------ 8 
Robinson v. Commissioners Court, 505 F.2d 674 

(5th Cir. 1974) --------------------- ----------- ------·-------- ------- 14 
Rogers v. Lodge, 458 U.S. 613 (1982) ............ 12, 15, 19, 21 
United States v. Dallas County Commission, 739 

F.2d 1529 (11th Cir. 1984) ---------- ------------------------- 7 
United States v. Marengo County Commission, 731 

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



iv 

TABLE OF AUTHORITIES-Continued 
Page 

Wallace v. House, 515 F.2d 619 (5th Cir. 1975), 
vacated on other grounds, 425. U.S. 947 (1976) __ 20 

Wesley v. Collins, 605 F. Supp. 802 (M.D. Tenn. 
1985) ____ ._______________________ _____________ _____________ __ __________ _____ __ 8, 23 

Whitcomb v. Chavis, 403 U.S. 124 (1971) _______ _____ ___ 14, 19 
White v. Regester, 412 U.S. 755 (1973) ·------------------p_assim 
Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 

1973), aff' d on other grounds sub nom. East 
Carroll Pa.rish School Board v. Marshall, 424 
U.S. 636 (1976) ________________ __ ___________ __ __ __ __ _________ ______ __ passim 

STATUTES: 

Pub. L. 97-205 § 3, 9.6. Stat. 131, 134 (1982) (codi­
fied at 42 U.S.C. § 1973 (b) (1982)), amending 
Pub. L. 89-110, 79 Stat. 437 (1965) __________________ __ 4 

42 u.s.c. § 1973 (b) (1982) --------- ------- -- ---- ---- -- ----5, 7, 17, 18 

LEGISLATIVE MATERIALS: 

H.R. Rep. 227, 97th Cong., 1st Sess. (1981) ____ 5, 6, 19-20 
S. Rep. No. 417, 9·7th Cong., 2d Sess. (1982) __________ passim 

PERIODICALS: 

Howard and Howard, The Dilemma of the Voting 
Rights Act-Recognizing the Emerging Politi­
cal Equality Norm, 83 Colum. L. Rev. 1615 
( 1983) ------- --- ------------- -- ------ -----------·--- -------- ----------------- 21 

Berry & Dye, The Discriminatory Effects of At-
Large Elections, 7 Fla. St. L. Rev. 85 (1979) ______ 18 

Bonapfel, Minority Challenges to At-Large Elec-
tions: The Dilution Problem, 10 Ga. L. Rev. 353 
(1976.) ----------·--------------------------- --------- -------- -------- -------- 19, 21 

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 
( 1982) ----------------- ----------------------------------------------------- 8, 15 



v 

TABLE OF AUTHORITIES-Continued 

Clinton, Further E xplorations in the Political 
Thicket: The Gerrymander and the Constitution, 

Page 

59 Iowa L. Rev. 1 (1973) ....................................... 14 
Carpeneti, Legislative Apportionment: Multi­

member Districts and Fair Representation, 120 
U. Pa. L. Rev. 666 (1972) .................................... 19 

Parker, The "Results" Test of Section 2 of the Vot-
ing Rights Act: Abandoning the Intent Stand-
ard, 69 Va. L. Rev. 715 (1983) ............................ 8 

Derfner, Racial Discrimination and the Right to 
Vote, 26 Vand. L. Rev. 523 (1973) ...................... 21 

Note, The Constitutional Significance of the Dis­
criminatory Effects of At-Large Elections, 91 
Yale L.J. 974 (1982) ........................................... 15-16,, 21 

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

BOOKS AND MISCELLANEOUS AUTHORITIES: 

Avila, Mobile Evidentiary Analysis, in The Right 
to Vote (Rockefeller Foundation Conf. Rep. 
1981) -·-··· ··························---······-·······-·····-················· 18 

R. Dahl, Who Governs? (1974) ·····-········--···--····---·-··· 10 
Davidson, Minority Vote Dilution, in Minority Vote 

Dilution (1984) ················-····················-·-·-········-··· 21 
R. Dixon, Democratic Representation (1968) ........ 21 
E. Lakeman, How Democracies Vote (1974) ........ 21 
R. Morrill, Political Redistricting and Geographic 

Theory (1981) ------ ---·- ··-··· ·······························-·'······ 14 
Parker, Racial Gerrymandering and Legislative 

Reapportionment, in Minority Vote Dilution 
(1984) ·-·-····---·······---·-·················-·--····················-····· 14 

Still, Alternatives to Single-Member Districts, in 
Minority Vote Dilution (1984) ------··················-··· 15 





IN THE 

§uprtmr Q1nurt nf tqr lftuitr~ §tatr.a 
OCTOBER TERM, 1985 

No. 83-1968 

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 

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

Pursuant to Rule 42 of the Rules of this Court, Com­
mon Cause hereby 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 filed with the Clerk of the Court. The 
consent of counsel for Appellants was requested but 
refused. 

As set forth in the attached brief at 1-2, Common 
Cause has a strong interest in the disposition of this ap-

(vii) 



viii 

peal and believes that its perspective differs from that of 
any pai'Ity. This motion and the attached brief are timely 
filed in accordance with Rule 36.3 of the Rules of this 
Court. 

August 30, 1985 

Respectfully submitted, 

WILLIAM T. LAKE 

WILMER, CUTLER & PICKERING 

1666 K Street, N.W. 
Washington, D.C. 20006 
(202) 872-6000 

Counsel of Record 
for Amicus Curiae 
Common Cause 



IN THE 

~uprrmr <nnurt nf tl1r l!ttitro ~tatr.a 
OCTOBER TERM, 1985 

No. 83-1968 

LACY H. THORNBURG, et al., 
Appellants, 

v. 

RALPH GINGLES, et al., 
Appellees. 

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

BRIEF FOR COMMON CAUSE AS AMICUS CURIAE 

INTEREST OF THE AMICUS 
AND SUMMARY OF ARGUMENT 

Common Cause is a nonpartisan organization with 
250,000 members, a central purpose of which is to fur­
ther responsible and honest government, accountable in 
practice as well as in theory to the voters who elect it. 
Common Cause has participated actively in litigation seek­
ing to protect the integrity of the electoral 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 

democratic institutions generally, which can be truly 
democratic only if all citizens have equal electoral oppor­
tunity. Therefore, Common Cause submits this brief as 
amicus curiae urging affirmance of the decision below. 

Common Cause seeks to provide the Court with a per­
spective on this litigation that differs from that of any 
party. In the interest of ensuring more reasoned and 
predictable identification of violations of Section 2 of the 
Voting Rights Act, it attempts herein to develop a frame­
work that will aid the Court in appreciating the inter­
relationships between and the significance of the factors 
identified in the Senate Report on the 1982 amendment to 
that Act. 

Section 2 embodies Congress' determination to com­
pensate for the diminishment of the voting strength of 
racial minorities caused by prior intentional discrimi­
nation. To that end, it prohibi,ts not merely electoral 
schemes that bar racial minorities from the political proc­
ess, but also plans that dilute the group voting strength 
of a minority. Such dilution occurs whenever an electoral 
system denies a racial minority an opportunity, propor­
tionate to its share of the population, to elect representa­
tives of its choice. Electoral success can be achieved in 
two different ways, and iit is these two avenues for in­
fluencing electoral outcomes to which the Senate Report 
factors are addressed. 

The first avenue is a racial group's exercise of its di­
rect voting strength-its ability, which increases with its 
share of the population, to influence electoral outcomes 
regardless of the votes of other groups. An important 
gauge of impairment of a minority's direct voting 
strength is whether concentrations of minority voters 
have been manipulated to dilute the impact of their votes. 
Such manipulrution can take the form of "fracturing" or 
"packing" in the context of single-member districts, or 
can result from subsuming concentrations of minority 
voters into multimember districts. 



3 

The second avenue to electoral success is coalition­
building: A racial group that lacks a majority in an 
electoral district may ·combine its strength with that of 
other groups to form coalitions capable of electing can­
didates of the groups' mutual choice. Impairment of a 
racial group's ability to engage in coalition politics can 
be discerned most clearly :from the presence of racial bloc 
voting. Other indicia can include raee.Jbased electoral ap­
peals, socioeconomic deprivation in the minority commu­
nity, and underrepresentation of minority-backed candi­
dates in elected positions. The less direct voting strength 
a minority has, the more successful it must be in align­
ing itself with other voting blocs to influence elections. 

The showing required of a plaintiff under Section- 2 
should relate to the ultimate issue whether the challenged 
practice, considered in context, impairs a racial group's 
ability to pursue these alternative avenues to electoral 
success. In the case of single-member districts, dilution of 
the minority's direct voting strength through fracturing 
or packing normally should violate Section 2 where racial 
bloc voting or other factors indicate that the minority's 
ability to engage in coalition politics also is impaired. 

Multimember districts inherently dilute a minority's 
direct voting strength- an effect that is greatest where 
such a district subsumes a minority concentration suf­
ficient to be a majority in a single-member district. This 
dilutive effect warrants close scrutiny to ensure that 
the ability of minorities . to build coalitions is not also 
diminished. In such a situation, any more than de 
minimis raci:al bloc voting normally should be sufficient 
to trigger a Section 2 violation. 

Under these standards, the findings below amply jus­
tify the trial court's conclusion that the practices chal­
lenged here violate Section 2. 



4 

ARGUMENT 

I. THE 1982 AMENDMENT TO THE VOTING RIGHTS 
ACT EXPRESSED CONGRESS' INTENT TO REM­
EDY DILUTION OF RACIAL MINORITY VOTING 
STRENGTH CAUSED BY THE CONTINUING 
EFFECTS OF PAST DISCRIMINATION. 

When Congress in the 1982 Voting Rights Act Exten­
sion ("the 1982 Act") extended the effectiveness of Sec­
tion 2 of the Voting Rights Act/ it also changed that 
section. Congress rejected the implications of the Court's 
plurality opinion in City of Mobile v. Bolden,2 which 
Congress viewed as radically altering the constitutional 
standard for vote dilution cases on which Section 2 orig­
inally had :been premised.'3 The Senate Report accom­
panying the 1982 Act explains that, prior to Bolden, the 
Court had held that proof of discriminatory intent was 
not necessary in a vote dilution case.4 The plurality in 
Bolden had overruled that position, concluding that the 
Constitution forbids only intentional dilution of a racial 
minority's voting power.'; In response, Congress amended 
Section 2 to provide that a violation of the Act is estab­
lished 

"if, based on the totality of circumstances, it is 
shown that the political processes leading to nomina­
tion or election in the State or political subdivision 
are not equally open to participation by members of 
a [racial minority] ... in that its members have 
less opportunity than other members of the electorate 

1 Pub. L. 97-205 § 3, 96 Stat. 131, 134 (1982) (codified at 42 
U.S.C. § 1973 (b) (1982)), amending Pub. L. 89-110, 79 Stat. 437 
(1965). 

2 446 u.s. 55 (1980). 
3 S. Rep. No. 417, 97th Cong., 2d Sess. 19 (1982). 

4 I d. at 24-25. 
5 I d. at 24. The plurality further found that Section 2 of the 

Voting Rights Act was coextensive with the Constitution in this 
respect. City of Mobile v. Bolden, 446 U.S. at 60-61. 



5 

to participate in the political process and to elect 
representatives of their choice." 6 

Congress thus removed any doubt that Section 2 is in­
tended to prohibit discriminatory results as well as dis­
criminatory intent.7 

Congress viewed this amendment as essential to 
achieving its primary goal, which was to compensate for 
the diminishing effect of prior purposeful discrimination 
on the voting strength of racial minorities.8 Because 
"voting practices and procedures that have discrimina­
tory results perpetuate the effects of past purposeful dis­
crimination," 9 Congress found it necessary to go beyond 
prohibiting intentional discrimination in order best to 
redress the continuing effect of prior wrongs. Section 2 
as amended seeks to eradicate any vestiges of prior dis~ 
crimination still reflected in current electoral structures. 
Therefore, a plaintiff seeking to establish a violation does 

~ 42 U.S.C. § 1973 (b) (1982). Congress further prescribed that: 
"The extent to which members of a protected class have been elected 
to office in the State or political subdivision is one circumstance 
which may be considered: 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." !d. 

7 "Plaintiffs niust either prove such [discriminatory] intent, or 
alternatively, must show that the challenged system or practice, in 
the context of all the circumstances in the jurisdiction in question, 
results in minorities being denied equal access to the political 
process." S. Rep. No. 417, supra note 3, at 27; see also id. at 2, 10, 
40; H.R. Rep. No. 227, 97th Cong., 1st Sess. 2, 31 (1982). 

8 See Jones v. City of Lubbock, 727 F.2d 364, 374-75 (5th Cir. 
1984); Major v. Treen, 574 F. Supp. 325, 343 (E.D. La. 1983). 
Indeed, the Senate Report explains that this r emedial goal also 
was the prime motivation behind the original passage of the Voting 
Rights Act of 1965. S. Rep. No. 417, supra note 3, at 5 (quoting 
statement of Sen. Jacob J avits, 111 Cong. Rec. 8295 (1965)). 

'9 S. Rep. No. 417, supra note 3, at 40; see H.R. Rep. No. 227, 
supra note 7, at 31. Congress also noted the difficulty of proving 
intentional discrimination. H.R. Rep. No. 227, supra at 31; S. Rep. 
No. 417, supra at 10, 40. 



6 

not have to show that the adoption of the challenged 
practice itself caused the dilution of voting strength.10 

The practice is unlawful if it contributes to the perpetu­
ation of that dilution. 

The legislative history indicates that Congress wished 
to incorporate into the statute the pre-Bolden caselaw to 
guide courts in identifying Section 2 violations.U That 
caselaw had applied a "totality of circumstances" test 
that took into account a number of factors relevant to 
the nature of the challenged practice and the context in 
which it operated.12 The legislative history makes 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," 13 and recognizes 
that certain factors may be more relevant than others in 

10 See generally Note, Geometry and Geography: Racial Gerry­
mandering and the Vo·ting Rights Act, 94 Yale L.J. 189, 200-01 
(1984). 

'l1 See S. Rep. No. 417, supra note 3, at 32; see also id. at 15; 
H.R. Rep. No. 227, supra note 7, at 29-30. 

12 As an interpretive aid, the Senate Report enumerates a number 
of typical objective factors, largely identified in White v . Regester, 
412 U.S. 755 (1973), and Zimmer v. McKeithen, 485 F.2d 1297 
(5th Cir. 1973) (en bane), aff'd. on other grounds sub nom. East 
Carroll Parish School Board v. Marshall, 424 U.S. 636 (1976), to 
guide courts in analyzing the discriminatory nature of an election 
system. Those factors include: a history of official discrimination 
against minority voters; the presence of racial polarization or 
racial appeals in elections; exclusion of the minority from any 
candidate slating process; creation of unusually large election dis­
tricts; adoption of majority vote requirements, anti-singleshot 
provisions, or other similar restrictions; socioeconomic deprivation 
in the minority community resulting from past discrimination; and 
underrepresentation of the minority among elected officials. In 
addition, the Report notes that a lack of responsiveness by elected 
officials to the needs of the minority or reliance on a tenuous policy 
to justify the State's use of the challenged practice may have some 
probative value. S. Rep. No. 417, supra note 3, at 28-29. 

13 !d. at 29. 



7 

a particular context.14 In addition, "[w]hile these enu­
merated factors will often be the most relevant ones, 
in some case~ other factors will be indicative of the al­
leged dilution." ~·5 

II. SECTION TWO'S ASSURANCE OF EQUAL "OP­
PORTUNITY" FOR RACIAL MINORITIES TO 
"ELECT REPRESENTATIVES OF THEIR CHOICE" 
REQUIRES CONSIDERATION OF A GROUP'S 
DIRECT VOTING STRENGTH AND OF ITS ABIL­
ITY TO PARTICIPATE EFFECTIVELY IN COALI­
TION POLITICS. 

A. Section Two Is Designed to Protect the Voting 
Strength of Minorities as a Group. 

Appellants and the United States suggest that Section 
2 creates a right only to the "opportunity to meaning­
fully participate in the political process." 1

'6 They con­
clude that the statute protects only "equal access" to 
election machineryP That assertion, rooted 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" 18 and disregards 
the group nature of voting rights as recognized by this 
Court and by Congress. 

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

14Jd. 

Hi !d. ; see, e.g., McMillan v. Escambia County, 748 F .2d 1037, 
1043 (5th Cir. 1984); United States v. Dallas County Commission, 
739 F.2d 1529, 1534 n.2 (11th Cir. 1984). 

16 Brief for Appellants at 16; see Brief for United States at 14. 

17 See Brief for Appellants at 18; Brief for United States at 
14-15. 

18 U.S.C. § 1973 (b) (1982) ; see supra text at note 6. 



8 

same candidates.19 Voting rights can, of course, be 
abridged by rules that prevent individuals from exercis­
ing the franchise. But they can be abridged also by 
electoral schemes that, in practice, dilute the collective 
weight given to the votes of members of a disfavored 
group. The Court has long recognized this group nature 
of voting rights, noting in Reynolds v. Sims that "feder­
ally protected [voting] right[s] suffer[] substantial dilu­
tion . . . [where a] favored group has full voting 
strength ... [and t]he groups not in favor have their 
votes discounted." 20 

Congress in amending Section 2 made evident its 
concern about the diminution of the group voting 
strength of racial minorities. As the Senate Report ex­
plained, "discriminatory election systems ... [that] min­
imize or cancel out the voting strength and political effec­
tiveness of minority groups, are an impermissible denial 
of the right to have one's vote fully count, just as much 
as outright denial of access to the ballot box." 2 1 

It is precisely this concept of dilution of group voting 
strength that underlay the trial court's characterization 

Hl See Hartman, Racial Vote Dilution and Separation of Powers·: 
An Exploration of the Conflict Between the· Judicial "Intent" and 
the L egislative "Results" Standards, 50 Geo. Wash. L. Rev. 689, 
691 (1982) ; Note, supra note 10, at 198. 

20 377 U.S. 533, 555 n.29 (1964). The Court has used a group­
oriented focus when adjudicating claims of malapportionment and 
gerrymandering. See, e.g., Karcher v. Daggett, 462 U.S. ·725, 744 
(1983) (Stevens, J., concurring) ; id. at 765 (White, J ., dissent­
ing); id. at 784 (Poweil, J., dissenting); Gaffney v. Cummings, 
412 U.S. 735, 751, 754 (1973) ; White v. Regester, 412 U.S. 755, 
765-70 (1973). 

'21 S. Rep. No. 417, supra note 3, at 28; see also id. at 30 n.120; 
United States v. Marengo County Commission, 731 F.2d 1546, 1556 
(11th Cir.), cert. denied, 105 S. Ct. 375 (1984); Wesley v. Collins, 
605 F. Supp. 802, 807-08 (M.D. Tenn. 1985); Parker, The "Results" 
Test of Section 2 of the Voting Rights Act: Abandoning the In­
tent Standard, 69 Va. L. Rev. 715, 761-63 (1983). 



9 

of the appropriate inquiry under Section 2-whether '"a 
racial minority . . . is effectively denied the political 
power ... that numbers alone would presumptively ... 
give it in a voting constituency not racially polarized in 
its voting behavior." 22 Appellants incorrectly character­
ize this "definition" as one that guarantees the outcome 
of the political process rather than the opportunity to 
participate in that process.23 T'o the contrary, the trial 
court's formulation does not guarantee electoral out­
comes, 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. -

B. The Factors Identified in the Legislative History 
Address the Ability of Racial Minorities to Exer­
cise Direct Voting Strength and to Build Coalitions 
to Influence Elections in the Absence of Numerical 
Majorities. 

The factors identified in the Senate Report are best 
considered in an analytical framework that illuminates 
their relevance to establishing a Section 2 violation. Here­
tofore, courts have examined these factors somewhat 
mechanically, without identifying the principles that 
underlay Congress' inclusion of them as relevant to the 
statutory 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 racial group has an opportunity to elect rep­
resentatives of its choice commensurate with its demo­
graphic strength. 24 The opportunity of a group to influence 

22 Dist. Ct. Op., 590 F. Supp. 345, 355 (E.D.N.C. 1984), reprinted 
in Jurisdictional Statement (J.S.) at 14a. 

23 Brief for Appellants at 19-20. 
24 Given the different sizes of racial groups, "equal" electoral 

opportunity necessarily means opportunity commensurate with a 
group's voting strength. This does not mean commensurate rep­
resentation, but rather commensurate ability to affect electoral 
outcomes. See infra text at notes 42-48. 



10 

electoral outcomes arises through two avenues, and it is 
to these two sources of electoral success that the factors 
listed in the Senate Report are addressed. 

First and foremost, a racial group has a capacity, 
which increases with its share of the voting age popula~ 
tion, directly to affect electoral outcomes by virtue of its 
own solidarity.2·5 A group that constitutes a majority in 
a district has the capacity directly to determine an elec­
tion, without regard to the votes cast by other groups. 
Such direct voting strength, however, can be diluted by 
electoral structures and practices that intentionally or 
inadvertently advantage some racial groups over others. 

Second, if a racial group lacks the numerical strength 
directly 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 choice.216 The greater a group's nu­
merical strength, the less it must rely on aligning itself 
with other minorities in order to influence electoral out­
comes. Here too, however, the electoral structure and 
the political and social context in which it operates can 
reduce the ability of a racial minority effectively to build 
such coalitions. 

Several of the factors identified in the Senate Report 
are aimed at the first consideration- direct voting 
strength. A state's use of practices such as unusually 
large election districts and anti-singleshot provisions is 

25 A group's share of the total population of a district is not an 
accurate measure of its ability to influence electoral outcomes. This 
Court and lower federal courts have recognized that, because cer­
tain minority groups have a generally younger population and hence 
a smaller proportion of eligible voters, raw population figures may 
overestimate their vot ing strength. See, e.g., City of Rome v. 
United States, 446 U.S. 156, 186 n.22 (1980); Ketchum v. Byrne, 
740 F.2d 1398, 1412-13 (7th Cir. 1984), cert. denied sub nom. City 
Council v. Ketchum, 105 S. Ct. 2673 (1985). 

26 R. Dahl, Who Governs? 249-50 (1974). 



11 

likely to reduce the direct voting strength of racial minor­
ities.27 Similarly, if a minority has been denied access to 
the candidate slating process preceding an election, its 
ability to exercise its numerical voting strength is diluted 
by virtue of its lack of a voice in determining what candi­
dates will be put before the electorate. A strong history 
of voting discrimination in an area also may result in 
decreased voter registration and turnout today, because 
of lingering voter frustration and diminished perceived 
legitimacy of the electoral process.28 

Other factors enumerated in the Senate Report shed 
light on whether racial minorities have the ability to 
build political coalitions in order to affect electoral out­
comes. Of foremost relevance is the extent to which vot­
ing patterns in elections are racially polarized. Coalition 
politics presumes that groups are willing to combine 
forces 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 
minodty solely because of its race and without regard to 
the political expediencies that otherwise underlie coalition­
building decisions. For example, groups that share eco­
nomic or other interests with blacks may nonetheless en­
gage in coalition-building only with whites for racial rea­
sons, thereby precluding blacks from fairly and equally 
participating in the election process. 

For similar reasons, the fact that election rhetoric is 
based on racial appeals provides strong evidence that a 
racial minority does not have an equal opportunity to 

27 For a discussion of the implications of such mechanisms, see 
infra text at notes 54-55. 

28 This factor may be relevant as well to the ability of a minority 
group to participate effectively in coalition politics. 



12 

participate in coalition politics. And socioeconomic dep­
rivation in the minority community, stemming from past 
discrimination, can have a similar significance, because it 
leads to depressed levels of political pa~ticipation.29 A 
disparity of socioeconomic status also may engender a 
lack of political savvy and a political agenda not shared 
by other groups, the latter making it less likely that the 
other groups will have cause to join forces with the racial 
minority. A lack of success by minority-backed candidates 
also may provide strong, quantitative evidence that mi­
norities have not successfully participated in coalition­
building. Finally, unresponsiveness of elected officials to 
the needs of the minority may be evidence of the same 
thing.30 

29 See, e.g., White v. Regester, 412 U.S. at 768; United States v. 
Marengo County Commission, 731 F.2d 1546, 1567 (11th Cir.), 
cert. denied, 105 S. Ct. 375 (1984) ; Kirksey v. Board of Super­
visors, 554 F.2d 139, 145 (5th Cir.), cert. denied, 434 U.S. 968 
(1977). "[P]laintiffs need not prove any further causal nexus 
between their disparate socio-economic status and the depressed 
level of political participation." S. Rep. No. 417, supra note 3, at 29 
n.114. 

'30 However, this factor is relevant principally to the existence of 
intentional discrimination. See Rogers v. Lodge, 458 U.S. 613, 625 
(1982); United States v. Marengo County Commission, 731 F.2d 
1546 (11th Cir.), cert. denied, 105 S. Ct. 375 (1984). It thus has 
little importance in suits alleging discriminatory results under 
Section 2. The Senate Report states that "[u]nresponsiveness is 
not an essential part of plaintiff's case" and that "defendants' proof 
of some responsiveness would not negate plaintiff's showing by 
other, more objective factors enumerated here that minority voters 
nevertheless were shut out of equal access t o the political process." 
S. Rep. No. 417, supra note 3, at 29 n. 116. 

One of the factors listed in the Senate Report-whether the 
policy underlying the use of a standard or practice is tenuous­
also appears to be an indirect measure of intentional discrimination. 
See Lee County Branch of NAACP v. City of Opelika, 748 F .2d 
1473, 1479 (11th Cir. 1984); Jones v. City of Lubbock, 727 F.2d 
364, 384 (5th Cir. 1984). 



1'3 

III. THE LAWFULNESS OF A CHALLENGED PRAC­
TICE SHOULD BE DETERMINED ON THE BASIS 
OF ITS IMPLICATIONS FOR THESE TWO MEANS 
OF INFLUENCING ELECTORAL OUTCOMES. 

Appreciation of these two avenues for influencing elec­
toral outcomes-direct voting strength and the .ability to 
build coalitions~provides a basis for more coherent appli­
cation of the Senate Report factors and for more reasoned 
and predictable identification of Section 2 violations. The 
weight to be given to each factor and, correspondingly, 
the nature of a plaintiff's required showing, should turn 
on an evaluation of the manner in which the challenged 
practice affects a minority's ability to influence electoral 
outcomes through each of these avenues in the context of 
the case. 

As discussed below, this approach leads to the conclu­
sion, with respect to single-member districts, that a 
scheme that either "fractures" a racial minority among 
districts or "packs" it excessively into a few districts vio­
lates Section 2 where racial bloc voting is significant or 
where other factors point to diminished coalition-building 
power in the minority group. With respect to multimem­
ber districts, which inherently dilute the voting power of 
all minorities, the proposed approach suggests that all 
such districts should be scrutinized closely to ensure that 
concentrations of racial minorities are not being fore­
closed from enjoying equal electoral opportunity. 

A. A Single-Member Districting Scheme That "Frac­
tures" or "Packs" a Racial Group's Direct Voting 
Strength Should Be Unlawful Unless Other Factors 
Indicate That the Group Can Participate Effectively 
in the Coalition-Building Process. 

Single-member districts offer an obvious oppo1:1tunity 
for local majorities directly to exercise group voting 
power to elect representatives of their choice. However, 
the drawing of single district lines can operate, "de-



14 

signedly or otherwise," 31 to reduce artificially the political 
strength of parti,cular groups of voters. 

Voter concentrations can be manipulated either by frac­
turing-the breaking up of cohesive population concentra­
tions into multiple districts, leaving the members with 
little effective political influence in any district-or by 
packing-the drawing of district lines to concentrate a 
group in a single or a few districts in a proportion greatly 
exceeding that required to exercise direct voting power, 
thus reducing the group's poJi.tical influence in any of the 
remaining districts.32 

These mechanisms can minimize the ability of a cohe­
sive group directly to influence electoral outcomes. As the 
Fifth Circuit noted in Robinson v. Commissioners Court: 

"The most crucial and precise instrument of the . . . 
denial of the black minority's equal access to political 
participation, however, remains the gerrymander of 
precinct lines so as to fragment what could otherwise 
be a cohesive voting community .... This dismem-
berment of the black community ... [can] ha[ve] 
the predictable effect of debilitating the organization 
and decreasing the partidpation of black voters in 
county government." 33 

Indeed, these mechanisms can effectively dilute the voting 
strength even of a racial group that forms a majority of 

31 Zimmer v. McKeithen, 485 F .2d at 1304. 

32 See generally R. Morrill, Political Redistricting and Geographic 
Theory 14-15, 19-20 (1981) ; Parker, Racial Gerrymandering and 
Legislative Reapportionment, in Minority Vote Dilution 85 (1984); 
Clinton, Further Explorations in the Political Thicket: The Gerry­
mander and the Constitution, 59 Iowa L. Rev. 1 (1973). The 
Court has often recognized the dangers of fracturing and packing 
in the constitutional context. See, e.g., Burns v. Richardson, 384 
U.S. 73 (1966) ; Gomillion v. Lightfoot, 364 U.S. 339 (1960). 

33 505 F .2d 674, 679 (5th Cir. 1974). Such district lines "weigh 
the power of one race more heavily than another." Whitcomb v. 
Chavis, 403 U.S. 124, 176 (1971) (Douglas, J., concurring). 



15 

the local population.34 As a result, single-member district­
ing schemes in which a "safe" minority district could 
have been created but was not, or in which minority 
group members are packed into a few districts in numbers 
far greater than necessary to produce "safe" districts, 
should receive close scrutiny under Section 2.35 

Since coalition-building is an alternative means of 
influencing electoral outcomes, the lawfulness of such a 
scheme may turn on the extent to which the racial minor­
ity is able to participate effectively in that process. As 
noted above, probably the most significant impediment to 
the ability to build coalitions is the presence of racially 
polarized voting. 36 The trial court properly identified this 
factor as the "single most powerful factor in causing _ 
racial vote dilution." 37 The presence of racial polariza­
tion, however, is necessarily a matter of degree. In some 
cases, racial bloc voting may be so strong as to shut out 
entirely any candidate backed by a racial group that is 
less than a majority of the district's voters; 38 in others, 

34 For example, if a State contained 100 voters, 67 black and 33 
white, a five-district system could in theory be gerrymandered 
such that white voters would outnumber blacks 11 to 9 in each of 
three districts while blacks would outnumber whites 20 to 0 in 
each of the other two. See generally Still, Alternatives to Single­
Member Districts, in Minority Vote Dilution 249 (1984). 

35 See Kirksey v. Board of Supervisors, 554 F.2d 139, 149 (5th 
Cir.), cert. denied, 434 U.S. 968 (1977); Ketchum v. Byrne, 740 
F.2d 1398, 1405 (7th Cir. 1984), cert. denied sub nom. City Council 
v. Ketchum, 105 S. Ct. 2673 (1985); Major v . Treen, 574 F. Supp. 
325, 352 (E.D. La. 1983). 

3t~ See Hartman, supra note 19, at 695. 

87 Dist. Ct. Op., 590 F. Supp. at 372, J.S. at 47a. Accord United 
States v. Marengo County Commission, 731 F.2d 1546, 1566 (11th 
Cir.), cert. denied, 105 S. Ct. 375 (1984) ; McMillan v. Es·cambia 
County, 748 F.2d 1037 (5th Cir. 1984) ; see Rogers v. Lodg-e, 458 
U.S.613, 616 (1982) . 

.38 See Rogers v. Lodge, 458 U.S. at 623; Perkins v. City of West 
Helena, 675 F.2d 201, 213 (8th Cir.), aff'd, 459 U.S. 801 (1982); 



it may impair but not totally eradicate a minority's coali­
tion-building power.39 Such impairment, where districting 
has reduced the minority's direct voting strength, may 
significantly reduce the group's overall ability to achieve 
its electoral goals. 

Fealty to the statutory goal of equal electoral opportu­
nity thus indicates that fracturing or packing of direct 
voting strength, combined with significant racial bloc vot­
ing, normally should trigger a Section 2 violation.40 Since 
the greater . the reduction in direct voting strength the 
more coalition~building that is needed to affect electoral 
outcomes, the degree of racial polarization that a plaintiff 
must show should decrease as the degree of demographic 
fragmentation or packing increases. 

Even if racial bloc voting is not present to a degree 
that is significant in this context, other factors may indi­
cate that the opportunity of a group to engage in coalition 

Note, The Constitutional Significance of the Discriminatory Ef­
fects of At-Large Elections, 91 Yale L.J. 974, 989 (1982). 

39 In the latter situ11-tion, the minority is denied an equal oppor­
tunity to influence electoral outcomes, even though the polarization 
is not so extreme as · to guarantee the defeat of every minority­
backed candidate. · See, e.g., City of Mobile v . Bolden, 446 U.S. 55, 
105 :p..3 (1980) (Marshall, J., dissenting); Note, supra note 10, at 
200 n. 67; Note, supra note 38, at 991-92. 

Appellants thus are wrong in suggesting that racially polarized 
voting is . insignificant under Section 2 unless it consistently pre­
vents minority-backed candidates from winning any elections. See 
Brief for Appellants at 40. If that position were taken literally, the 
success of a single minority-backed candidate would compel a finding 
that no cognizable racial bloc voting exists. But such a single suc­
cess obviously does not foreclose a conclusion that racial polarization 
ha~ impaired the minority's , coalition-building power. Congress' 
awareness that the ability 'to influence elections is a matter of 
Q.egree is plain from its articulation of the "extent" of success of 
minority candidates as one of the factors under Section 2. See 
S. Rep, No. '417, supra note 3, at 28-29. ' 

40 See Kirksey v. Board of Supervisors, 554 F.2d 139, 151 (5th 
Cir.), cert. denied, 434 U.S. 968 (1977). 



17 

politics-and thereby to affect electoral outcomes-. is im­
paired. For example, if blacks continue to suffer serious 
socioeconomic effects from past discrimination, or if elec­
tions are marked by race-based appeals, those factors 
may establish that blacks are unable to form coalitions 
that will influence electoral outcomes.H 

One further type of relevant evidence obviously is a 
lack of success in electing minority candidates or others 
endorsed by the minority community. The greater the dis­
parity between the proportion of such elected officials and 
the minority's share of the population, the stronger the 
inference that the minority does not effectively participate 
in the coalition-building process.42 Consideration of elec­
toral outcomes as evidence of the inability of a racial 
minority to build coalitions, of course, does not amount to 
the creation of a statutory right to proportional repre­
sentation. Congress made clear that outcomes are a rele­
vant consideration in identifying Section 2 violations.43 

At the same time, it is clear also that the "election of a 
few minority candidates does not 'necessarily foreclose the 
possibility of dilution of the black vote.'" 44 Appellants' 
suggestion that recent electoral successes by blacks bar a 
finding of unequal opportunity 45 thus cannot be correct. 
The races of successful candidates are only one piece of 
evidence of a racial minority's opportunity to influence 
electoral outcomes. Just as victories by white candidates 

41 See supra text preceding note 29. 

4i2 See White v. Register, 412 U.S. 755, 766-69 (1973) ; Zimmer v. 
McKeithen, 485 F.2d 1297 (5th Cir. 1973), aff'd on other grounds 
sub nom. East Carroll Parish School Board v. Marshall, 424 U.S. 636 
(1976); see also NAACP v. Gadsden County School Board, 691 
F.2d 978 (11th Cir. 1982); Note, supra note 10, at 205. 

43 See supra note 6. 

44 S. Rep. No. 417, supra note 3, at 29 n. 115, quoting Zimmer v. 
McKeithen, 485 F.2d at 1307. 

45 See Brief for Appellants at 24. 



18 

may, in light of all other evidence, be consistent with a 
finding that blacks enjoy equal voting power, victories by 
particular black candidates may be consistent with a find­
ing that blacks' opportunity to affect electoral outcomes 
is diluted. A black candidate's success at the polls may 
be explained by a variety of factors. 46 Failure to elect a 
proportionate number of representatives does not in itself 
trigger a finding of a statutory violation; 4

·
7 and some 

measure of success in a particular election does not bar 
such a finding.48 

B. Multimember Districts That Subsume Large Minor­
ity Populations Dilute the Direct Voting Power of 
Such Groups and Should Be Closely Scrutinized. 

1. Multimember Districts Inherently Dilute the 
Direct Voting Strength of Minorities. 

The creation of a multimember or at-large district 
tends to reduce the direct voting strength of a racial (or 
any other) minority subsumed within the district, par­
ticularly where the group ·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-

46 For example, white politicians may find it expedient to support 
a "token" minority r epresentative whose views they find acceptable. 
See Avila, Mobile Evidentiary Analysis, in The Right to Vote 125, 
133 (Rockefeller Foundation Conf. Rep. 1981) ; Berry & Dye, The 
Discriminatory Effects of At-La,rge Elections, 7 Fla. St. U.L. Rev. 
85 (1979). Or they may even support a minority candidate in order 
to thwart a legal challenge to the electoral scheme on dilution 
grounds. See Zimmer v. McKeithen, 485 F.2d at 1307. The latter 
possibility is especially likely where, as here, the electoral scheme 
was challenged prior to the recent successes of the minority candi­
dates. See Dist. Ct. Op., 590 F. Supp. at 367 n.27, J.S. at 37a n.27. 

47 See supra note 6. 

48 Electoral successes commensurate with a minority's share of 
the population over a significant period of time might, of course, 
constitute substantial evidence that the group enjoys equal electoral 
opportunity, depending on the other facts of the case. 



19 

her districts, though not unlawful per se under Section 
2,49 thus require close scrutiny under that section. 

In an at-large system, a majority of the population of 
the district controls the election of each of the at-large 
legislators. The Court has recognized on numerous occa­
sions that such a "winner-take-all" voting system by def­
inition denies to every numerical minority the propor­
tionate direct voting power it could have in single-member 
districts. In Rogers v. Lodge, the Court explained: 

"At-large voting schemes and multimember districts 
tend to minimize the voting strength of minority 
groups by permitting the politicaL majority to elect 
all representatives of the district. A distinct minor­
ity, whether it be a racial, ethnic, economic or politi­
cal group, may be unable to elect any representatives­
in an at-large election, yet may be able to elect sev­
eral representatives if the political unit is divided 
into single-member districts." 50 

Congress also recognized the inherent dilutive effect of 
multimember districts in enacting the 1982 Act.51 

411 H.R. Rep. No. 227, supra note 7, at 30; S. Rep. No. 417, supra 
note 3, at 23-24, 27. In so concluding, Congress appears to have 
followed several Supreme Court cases that had declined to hold at­
large districting unconstitutional per se. See White v. Regester, 
412 U.S. 755, 765 (1973) ; Whitcomb v. Chavis, 403 U.S. 124, 142 
(1971) ; Fortson v. Dorsey, 379 U.S. 433, 438-39 (1965) ; see also 
Zimmer v. McKeithen, 485 F.2d at 1304. Those cases, of course, 
leave open the possibility that an at-large district may be uncon­
stitutional where it operates under the circumstances to dilute the 
voting strength of racial minorities. 

50 458 U.S. 613, 616 (1982) (emphasis in original); see also City 
of Mobile v. Bolden, 446 U.S. 55, 65-66 (1980) (plurality opinion); 
Cownor v. Finch, 431 U.S. 407, 415 (1977) ; Whitcomb v. Chavis, 403 
U.S. 124, 158-59 (1971); Jones v. City of Lubbock, 727 F.2d 364, 
383 (5th Cir. 1984). See generally Bonapfel, Minority Challenges 
to At-Large Elections: The Dilution Problem, 10 Ga. L. Rev. 353 
(1976); Carpeneti, Legislative Apportionment: Multimember Dis­
tricts and Fair Representation, 120 U. Pa. L. Rev. 666 (1972). 

5 1 The House Report explains that "at-large elections are one of 
the most effective methods of diluting minority [voting] strength 



20 

Multimember districting also tends to dilute the voting 
strength of racial minorities in more subtle ways. For 
example, it contributes to the election of representatives 
lacking close ties to the voters in particular communities; 
hence, identifiable constituencies have no one member 
specifically charged with representing their interests.52 

At-large systems also contri!bute to voter confusion, be­
cause ballots in such systems necessarily are more bulky 
and difficult to comprehend.53 

The dilutive effects of multimember districts can be 
magnified or reduced by a state's adoption of certaiin 
structural features. Some of those features-identified in 
the legislative history of the 1982 Act 54-can strip away 
further a minority's opportunity to influence elections. 
For example, a majority-win rule, requiring a runoff if 
no candidate receives more than half of the votes cast, 
may, in some instances, prevent a minority candidate 
from winning where the majority vote is split between 
two majority candidates. Numbered post pro¥isions, 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 provisions, too, by requir-

in the covered jurisdictions," H.R. Rep. No. 227, supra note 7, at 
18, and acknowledges that "numerous empirical studies based on 
data collected from many communities have found a strong link 
between at-large _elections and lack of minority representation." I d. 
at 30. 

52 This effect is heightened if the scheme lacks any requirement 
that members come from each of the implicit wards within the at­
large scheme. See White v. Regester, 412 U.S. 755, 766 n.10 (1973) ; 
Zimmer v. McKeithen, 485 F .2d at 1305. 

53 See, e.g., Connor v. Finch, 431 U.S. 407, 415 (1977); Chapman 
v. Meier, 420 U.S. 1, 15 (1975); Wallace v. House, 515 F.2d 619, 
627 (5th Cir. 1975), vacated on other grounds, 425 U.S. 947 (1976). 

54 See supra note 12; see also H.R. Rep. No. 227, supra note 7, 
at 30; S. Rep. No. 417, supra note 3, at 29. 



21 

ing each voter to cast a ballot for as many candidates as 
there are offices to be filled, prevent targeted voting, 
fordng racial :mino·rities to vote for white candidates 
where the number of open seats exceeds the number of 
minority candidates. Finally, an election scheme under 
which the terms of offices are staggered minimizes the 
potential for vote-splitting among the majority group by 
making fewer seats open at any time.55 

On the other hand, other structural features can com­
pensate for the naturally dilutive effects of an at-large 
system. These include cumulative voting '56 and limited 
voting procedures. 57 Or a state can take a hybrid ap­
proach by superimposing an at-large scheme on top of a 
system of single-member districts, so that some repre-

M This Court and commentators have emphasized the inherently 
dilutive character of each of these structural provisions. See, e.g., 
Ragen; v. Lodge, 458 U.S. 613, 627 (1982) ; City of Rome v. United 
States, 446 U.S. 156, 184 n.20 (1980) ; White v. Regester, 412 U.S. 
755, 756 (1973); Zimmer v. McKeithen, 485 F.2d at 1305; Davidson, 
Minority Vote Dilution, in Minority Vote Dilution 6-7 (1984); 
Bonapfel, Minority Challenges to At-Large Elections: The Dilution 
Problem, 10 Ga. L. Rev. 353, 358-59 (1976) ; Derfner, Racial Dis­
crimination and The Right to Vote, 26 Vand. L. Rev. 523, 553 n.125 
(1973); Howard and Howard, The Dilemma of the Voting Rights 
Act-Recognizing the Emerging Political Equality Norm, 83 Colum. 
L. Rev. 1615, 1658-59 n.184 (1983) ; Note, supra note 38, at 993-94. 

56 With cumulative voting, voters in multimember districts are 
permitted to cast multiple votes for a single· preferred candidate. 
By enabling minority groups to concentrate their votes on a single 
or a few minority candidates, cumulative voting enhances minority 
voting strength. See, e.g., United States v. Marengo County Com­
mission, 731 F.2d 1546, 1560 n.24 (11th Cir.), cert. denied, 105 
S. Ct. 375 (1984) ; R. Dixon, Democratic Representation 523-25 
(1968); E. Lakeman, How Democracies Vote 87-91 (1974). 

57 Under a limited voting procedure, citizens are given fewer 
votes than the number of offices to be filled, minimizing the "win­
ner-take-all" bias inherent in multimember systems. See, e.g., 
United States v. Marengo County Commission, 731 F.2d at 1560 
n.24; R. Dixon, supra note 56, at 521-23. 



22 
sentatives are elected according to each method.58 The 
use of such procedures, under appropriate circumstances, 
enables states to "retain the perceived benefits of at­
large representation while providing opportunities for 
effective minority participation." '59 Where these compen­
satory mechanisms are present, a multimember scheme 
may give minorities an effective opportunity to exercise 
their direct voting strength. However, wbsent such mech­
anisms-and particularly if additional features exacer­
bating dilutive effects are present~multimember dis­
tricts should be regarded as inherently suspect under 
Section 2. 6Q 

2. The Need for Proof of Racial Polarization or 
Other Factors Impairing a Minority's Ability to 
Build Coalitions Should Be Less Where Concen­
trations of Minority Voters are Subsumed in 
Multimember Districts. 

The dilution of a minority's direct voting strength by 
multimember districts necessitates greater success in co-

58 See City of Mobile v. Bolden, 446 U.S. 55, 82 (1980) (Black­
mun, J., concurring); United States v. Marengo County Commis­
sion, 731 F.2d at 1560 n.24; NAACP, Inc. v. City of Statesville, 
606 F. Supp. 569 (W.D.N.C. 1985); James v. City of Sarasota, No. 
79-1031-Civ-T-GC (D.C. Fla. Jan. 25, 1985). 

59 United States v. Marengo County Commission, 731 F.2d at 1560 
n.24. 

00 In certain limited instances, replacing an at-large system with 
a single-member scheme might dilute minority voting strength 
even further. If a racial group is very small or its members are 
spread relatively evenly throughout the area, then no single­
districting scheme can be established that will enable the group to 
exert a strong political influence even in one district within a 
single-member scheme. See, e.g., Dove v. Moore, 539 F.2d 1152, 1155 
n.4 (8th Cir. 1976) ; Zimmer v. McKeithen, 485 F.2d at 1308. In 
other rare instances, the use of a multimember scheme may be con­
stitutionally compelled by the one-person-one-vote requirement. See 
id. at 1308. However, absent these unusual situations, the prefer­
ence for "safe" single-member districts over multimember dis­
tricts reflects Congress' "political judgment," Dist. Ct. Op., 590 F. 
Supp. at 357, J.S. at 18a, as to the most appropriate vehicle for 
identifying and eliminating the vestiges of racial discrimination. 



23 

alition-building if a racial minority is to influence elec­
tion outcomes. As a result, any racial bloc voting will be 
especially destructive of ·a minority's opportunity to elect 
representatives of its choice. Thus, the amount of racial 
polarization necessary to warrant a conclusion that a 
group's ability to participate in coalition politics is im­
paired should be even less than would be required in the 
context of single-member districts. 

Indeed, where a concentrated population of minority 
voters has its direct voting strength diluted through sub­
mergence in a multimember district, and where elections 
in that district have not produced success by minority 
candidates commensurate with the minority's demographic 
strength, any evidence of more than de minimis racial 
bloc voting normally should suffice to show a Section 2 
violation. The same should be true with respect to other 
factors evidencing impairment of a minority's opportu­
nity to engage in coalition politics.'n 

IV. APPLYING THESE PRINCIPLES, THE COURT 
SHOULD AFFIRM THE JUDGMENT BELOW. 

When the trial court's findings of fact are considered 
in relation to the statutory framework described above, 
it is clear that blacks in each of the challenged multi­
member districts do not enjoy equal electoral opportu­
nity.62 The court based its findings on an "intensely local 

<6l See, e.g., United States v. Marengo County Commission, 731 
F.2d 1546, 1566 (11th Cir.), cert. denied, 105 S. Ct. 375 (1984) ; 
Wesley v. Collins, 605 F. Supp. 802, 812 (M.D. Tenn. 1985); supra 
text at notes 41-42. 

62 We do not understand that there remains any issue concerning 
the lawfulness of Senate District No. 2, a single-member district. 
Accord Brief for United States at 7 n.11. We thus do not discuss 
that district, except to note that the trial court's findings of frac­
turing in that district and of "severe and persistent racial polari­
zation in voting," Dist. Ct. Op., 590 F . Supp. at 358, 372, J .S. at 
20a-21a, 46a, provide ample basis for its holding that the district 
violates Section 2. 



24 

appraisal" 63 of the structure and operation of the chal­
lenged schemes. The findings firmly establish that blacks 
in these districts are foreclosed from employing direct 
voting strength and hampered in their ability to engage 
in coalition politics. 

There can be no doubt that blacks are denied an equal 
opportunity to exercise their direct voting strength to 
achieve electoral success. The court found that concen­
trations of blacks within the boundaries of each of the 
challenged districts were sufficient to constitute major­
ities in single districts, which would have enabled them 
to elect candidates through their own solidarity.64 The 
submergence of these black concentrations instead into 
large multimember districts in which blacks are rela­
tively small minorities 6'5 greatly diluted blacks' direct 
voting strength. Moreover, the level of political partici­
pation by black citizens was significantly depressed as a 
result of discrimination in prior elections.&6 The result­
ing registration gap between blacks and whites even 
further diminished the direct voting strength of the black 
population. 

In addition, the challenged schemes contain features 
that exacerbate the inherently dilutive effect of these 
multimember districts. First, the trial court found that 
North Carolina's majority-vote requirement for all pri­
mary elections under the circumstances presents an "on­
going impediment to any cohesive voting minority's op-

· 63 White v. Regester, 412 U.S. 755, 769 (1973 ) . 
64 Had single districts been created, blacks would have consti­

tuted majorities ranging from 62.7 percent in House District No. 
8 to 71.2 percent in House District No. 36. Dist. Ct. Op., 590 F. 
Supp. at 357-58, J.S. at 19a-20a. 

'65 The percentages of blacks in the total populations of the 
multimember districts ranged from 21.8 percent in House· Dis­
trict No. 21 to 39.5 percent in House District No. 8. The percent­
ages of blacks in the registered-voter populations of these districts 
ranged from 15.1 to 29.5 percent. Id. at 357, J.S. at 19a. 

so I d. at 360-61, J .S. at 24a-26a. 



25 

portunity to elect candidates of its choice .... " 67 Sec­
ond, the State's lack of a subdistrict residency require­
ment '68 enables the elected representatives to come dis­
proportionately from outside the predominantly black 
neighborhoods of the multimember districts. The dilutive 
effect of these features is compounded by the fact that 
the size of these multimember districts is unusually 
large.<>9 

In these circumstances, close scrutiny is necessary to 
ensure that blacks are capable of engaging in coalition 
politics in these districts to the extent required to afford 
them equal electoral opportunity. The trial court's find­
ings amply demonstrate that they are not. After review­
ing extensive statistical and direct evidence, the trial 
court found significant racial polarization in each of the 
challenged districts. 70 Not only did it find an almost 

67 Id. at 363, J.S. at 30a. Contrary to Appellants' claim, it is ir­
relevant whether a black candidate demonstrably has lost an elec­
tion because of such structural features . See Brief for Appellants 
at 27-28. Such an argument not only ignores the fact that racial 
vote dilution can be significant without being absolute, but it fails 
to consider the interrelationship of such features with other im­
pediments to black electoral success. For example, the trial court 
noted that the majority-vote r equirement is especially harmful 
where racial polarization exists. S ee Dist. Ct. Op., 590 F. Supp. at 
363, J .S. at 30a. It noted also that, in recent years, black candi­
dates for Congress and Lieutenant Governor who led in the first 
Democratic primary lost in the runoff election mandated by the 
majority-vote requirement. !d. 

68 Dist. Ct. Op., 590 F. Supp at 363, J.S. at 30a. 

69 Tr. at 133 (Testimony of Dr. B. Grofman). 

70 Dist. Ct. Op., 590 F. Supp. at 367-72, J.S. at 38a-46a. In chal­
lenging the trial court's finding of racial bloc voting, Appellants and 
the United States erroneously focus on selective data concerning 
the percentages of white votes received by a few black candidates. 
See Brief for Appellants at 36-38; Brief for United States at 32-33. 
That focus, out of context, can be highly misleading. For example, 
both briefs stress that a black candidate (Berry) received 50 pe·r­
cent and 42 percent of the white vote in the primary and general 



26 

unprecedented correlation between the race of voters and 
the race of the candidates for whom they voted,71 but 
white voters consistently exhibited a strong reluctance to 
vote for black candidates under any circumstances. 72 

Such severe racial polarization should be ample, given 
the dilutive features of these multimember districts and 
their demographic and historical contexts, to support the 
trial court's conclusions that the districts violate Sec­
tion 2. 

The trial court's additional findings on the prevalence 
of subtle racial appeals in election campaigns 73 and on 
the disadvantaged educational, employment, and health 
status of blacks stemming from past intentional discrim­
ination 74 buttress this conclusion, as does the court's find­
ing of persistent underrepresentation of black-supported 

election for House District No. 36 in 1982. The trial court spe­
cifically addressed the misleading nature of this statistic, pointing 
out that in the primary there were only seven white candidates 
for eight positions so that at least one black had to be elected, and 
that in the general election a solid majority of white voters refused 
to vote for any black candidates. Dist. Ct. Op., 590 F. Supp. at 
369, J.S. at 42a. 

"Tl Dist. Ct. Op., 590 F. Supp. at 367-68 & n.30, J.S. at 38a-40a 
& n.30. 

·r2 For example, the trial court found that white voters almost 
universally ranked black candidates last or next to last among all 
candidates, and that most refused to support black candidates in 
general elections even when they were running against candidates 
of the party the whites would otherwise oppose• or when black in­
cumbents ran uncontested. !d. at 368, J.S. at 40a. 

n !d. at 364, J.S. at 31a-32a . 

74 !d. at 361-63, J.S. at 26a-29a. The trial court found that these 
disadvantages resulted in significantly depressed levels of socio­
economic well-being for blacks, giving "rise to special group inter­
ests centered upon those factors." Id. at 363, J.S. at 29a. This dis­
junction between the political agenda of blacks and whites signi­
ficantly reduces the impetus for whites to engage in coalition­
building with blacks. 



27 

candidates at all levels of government.75 The court's find­
ing of black underrepresentation was based not on a rule 
of thumb of "propo,rtional representation," as Appellants 
suggest/" but on the court's analysis of the results of 
elections held in each challenged district and the elec­
toral contexts that generated those results. 77 Though 
acknowledging the recent election of a few black candi­
dates, the trial court found compelling reasons to doubt 
that those results demonstrated equal electoral opportu­
nity, 78 and found the "overall results achieved to date 
at all levels of elective office ... minimal in relation to 

76 I d. at 367, J.S. at 37a. 

7;; Brief for Appellants at 19. 

77 Dist. Ct. Op., 590 F. Supp. at 364-66, J .S. at 32a-36a. By selec­
tively focusing on certain races and ignoring the circumstances of 
those races, Appellants and the United States draw unwarranted 
inferences about blacks' ability to influence the · political process. 
For example, the United States infers that blacks enjoy equal elec­
toral opportunity in House District No. 23 by virtue of the election 
of a black member to a three-person House delegation where blacks 
constitute 36.3 percent of the population. Brief for United States at 
22. Such an inference is unsound: The trial court points out that 
only two white candidates decided to enter the race for three seats. 
A black candidate therefore had to win. See 590 F. Supp. at 368, 
J.S. at 40a. In addition, the court noted that no black had ever 
been elected to the Senate from the area comprising District 23, 
and that only 25 percent of the City Council members are black 
despite a 47 percent black voting population. Id. at 366, J.S. at 35a. 
The United States also emphasizes that two of five House delegates 
in District No. 39 are black while blacks constitute only 25 percent 
of the population, see Brief for United States at 20, but ignores the 
court's additional findings that only one of eight Board of Educa­
tion members is black, that only one of five City Commissioners is 
black, and that no blacks have ever been elected to the Senate from 
that area. See Dist. Ct. Op., 590 F. Supp. at 366, J.S. at 35a. 

78 For example, the court concluded that the somewhat higher 
level of success experienced by black candidates in 1982 compared 
to previous years likely was caused by the pendency of this very 
lawsuit, which encouraged white political leaders to support token 
black candidates in order to forestall success by plaintiffs. See 
Dist. Ct. Op., 590 F. Supp. at 367 n.27, J.S. at 37a n.27. 



28 

the percentage of blacks in the total population." 79 These 
additional findings leave no doubt that blacks in these 
multimember districts are hindered in engaging in coali­
tion politics, and under the circumstances are being 
denied equal electoral opportunity. 

CONCLUSION 

For these reasons, the judgment of the court below 
should be affirmed. 

August 30, 1985 

79 I d. 

Respectfully submitted, 

WILLIAM T. LAKE 

Counsel of Record 
ADRIENNE MASTERS 

WILMER, CUTLER & PICKERING* 

1666 K Street, N.W. 
Washington, D.C. 20006 
(202) 872-6000 

Counsel for Amicus Curiae 
Common Cause 

*Evan Caminker, a summer associate at the law firm of Wilmer, 
Cutler & Pickering, assisted in the preparation of this brief. 






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