Thornburg v. Gingles Brief for Appellees

    No. 83-1968
IN THE

SUPREME COURT OF THE UNITED STATES 
October Term, 1984 

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 APPELLEES

JULIUS L. CHAMBERS 
ERIC SCHNAPPER
C. LANI GUINIER *

NAACP Legal Defense
and Educational Fund, Inc.
16th Floor
99 Hudson Street
New York, New York 10013
(212) 219-1900

LESLIE J. WINNER
Ferguson, Watt, Wallas,
& Adkins, P .A .
951 S. Independence Blvd. 
Charlotte, North Carolina 
(704) 375-8461

ATTORNEYS FOR APPELLEES, Ralph 
Gingles, et al.

28202

^Counsel of Record



QUESTIONS PRESENTED

(1) Does section 2 of the Voting 
Rights Act require proof that 
minority voters are totally 
excluded from the political 
process?

(2) Does the election of a minority 
candidate conclusively establish 
the existence of equal electoral 
opportunity?

(3) Did the district court hold that 
section 2 requires either 
proportional representation or 
guaranteed minority electoral 
success?

l



(4) Did the district court cor­
rectly evaluate the evidence of 
racially polarized voting?

(5) Was the district court's finding 
of unequal electoral opportunity 
"clearly erroneous"?

11



TABLE OF CONTENTS

Questions Presented ..............  i
Table of Authorities .............  vi
Statement of the Case ............  1
Findings of the District Court ... 7
Summary of Argument ..............  15
Argument

I. Section 2 Provides
Minority Voters an Equal 
Opportunity to Elect 
Representatives of their 
Choice .................  19
A. The Legislative History of

the 1982 Amendment of 
Section 2 ..............  21

B. Equal Electoral Oppor­
tunity is the Statutory 
Standard ...............  44

C. The Election of Some
Minority Candidates Does 
Not Conclusively Establish 
the Existence of Equal 
Electoral Oppor­
tunity .........

Page

- iii -

50



Page
II. The District Court Re­

quired Neither Proportional 
Representation Nor Guaran­
teed Minority Political 
Success .................... 64

III. The District Court Applied 
the Correct Standards In 
Evaluating the Evidence of 
Polarized Voting .......... 70
A. Summary of the District

Court's Findings .....  73
B. The Extent of Racial 

Polarization was Sig­
nificant, Even Where
Some Blacks Won ....... 76

C. Appellees were not Re­
quired to Prove that White 
Voters' Failure to Vote 
for Black Candidates was 
Racially Motivated .... 81

D. The District Court's
Finding of the Extent of 
Racially Polarized 
Voting is not Clearly 
Erroneous .............  88

IV. The District Court Finding 
of Unequal Electoral Oppor­
tunity Was Not Clearly 
Erroneous .................  95
A. The Applicability of

Rule 52 ..............  95

IV



Page
B. Evidence of Prior

Voting Discrimi­
nation ...............  102

C. Evidence of Economic
and Educational Dis­
advantages ...........  107

D. Evidence of Racial
Appeals by White 
Candidates ...........  113

E. Evidence of Polar­
ized Voting .......... 118

F. The Majority Vote
Requirement .......... 118

G. Evidence Regarding
Electoral Success of 
Minority Candi­
dates ................  121

H. The Responsiveness
Issue ................  130

I. Tenuousness of the
State Policy for Multi­
member Districts ....  131

Conclusion ...........................  135

v



TABLE OF AUTHORITIES

Cases
Alyeska Pipeline Service v. Wilder­

ness Society, 421 U.S.
240 (1975) ................... 100

Page

Anderson v. City of Bessemer
16,98,99

Anderson v. Mills, 664 F.2d
600 (6th Cir. 1981) ....

Bose Corp. v. Consumers Union, 
80 L.Ed.2d 502 ( 1 984) .. .

Buchanan v. City of Jackson, 
708 F .2d 1066 (6th Cir. 
1983) ....................

City of Port Arthur v. U.S.,
517 F. Supp. 987, affirmed 
459 U.S. 159 (1982) ....

City of Rome v. U.S., 446 U.S. 
156 (1980) ..............

Collins v. City of Norfolk,
768 F .2d 572 (4th Cir. 
July 22, 1985) ..........

72,99,120

96

vi



Cases
Page

Connecticut v. Teal, 457
U.S. 440 ( 1982) .............  63

Cross v. Baxter, 604 F .2d 875
(5th Cir. 1979) .........• • • • 56

David v. Garrison, 553 F .2d 923
( 5th Cir. 1 977 ) .............  1 10

Dove v. Moore, 539 F.2d 1152
(8th Cir. 1976) .............  1 10

Ernst and Ernst v. Hochfelder,
425 U.S. 185 ( 1976) ......... 50

Garcia v. United States, __  U.S.
105 S.Ct. 479 (1984) ---  36

Gaston County v. United States,
395 U.S. 285 ( 1969) ......... 107

Gilbert v. Sterrett, 508 F. 2d
1 389 (5th Cir. 1 975) ........ 96

Harper & Row, Publisher v.
Nation, U.S. , 85 L.Ed.2d
588 (1 985) ................... 98

Hendrick v. Walder, 527 F.2d 44
(7th Cir. 1975) .............  1 10

Hendrix v. Joseph, 559 F .2d
1265 (5th Cir. 1977) ........ 96

Hunter v. Underwood, U.S. ___,
85 L. Ed. 2d 222 (T5TT5) ......  99

- vii -



Cases
Page

Jones v. City of Lubbock, 727 
F . 2d 364 ( 5th Cir. 1984); 
reh'g en banc denied, 730 
F . 2d 233 ( 1 984) ......... 88,96,1 30

Kirksey v. Bd. of Supervisors, 554
F. 2d 139 (5th Cir. 1977)... 56

Kirksey v. City of Jackson, 699
F.2d 317 (5th Cir. 1982) ___  84

Lodge v. Buxton, Civ. No. 176—
55 (S.D. Ga. 10/26/78), aff'd
Rogers v. Lodge, 458 U.S.
61 3 ( 1982) ................... 80

Major v. Treen, 574 F. Supp. 325 
(E.D. La. 1983)(three judge 
court) ......................  56,71,78

McCarty v. Henson, 749 F.2d
1134 (5th Cir. 1984), aff'd 
753 F .2d. 879 (5th Cir.
(1985) .......................  96

McCleskey v. Zant, 580 F. Supp.
380 (N.D. Ga. 1984), aff’d 753 

F.2d 877 (5th Cir. 1985)   86
McGill v. Gadsden County

Commission, 535 F .2d 277
(5th Cir. 1976)   96

McMillan v. Escambia County, 748
F .2d 1037 (11th Cir. 1984) .. 108,130

Metropolitan Edison Co. v. PANE,
460 U.S. 766 (1983)

- viii-
98



Cases
Page

Mississippi Republican Execu­
tive Committee v. Brooks,

U.S. , 105 S.Ct.
TiT ( 1 9841 T........   85

Mobile v. Bolden, 446 U.S. 55
( 1 980)  22,23,24,30,82

NAACP v. Gadsden County School 
Board, 691 F .2d 978 (11th 
Cir. 1982) ..................  80

Nevett v. Sides, 571 F .2d 209
( 1 978) .......................  68,69

Parnell v. Rapidas Parish School 
Board, 563 F.2d 180 (5th 
Cir. 1977) ................... 96

Perkins v. City of West Helena,
675 F .2d 201 (8th Cir. 1982),
aff'd mem. 459 U.S. 801
TWST) ........................  85

Rogers v. Lodge, 458 U.S. 613
(1982)   79,80,85,99,130

South Alameda Spanish Speaking 
Org. v. City of Union 
City, 424 F .2d 291 (9th 
Cir. 1970).................... 84

Strickland v. Washington, U.S.
, 80 L. Ed. 2d 674 (TW4) .. 98

United Jewish Organizations v.
Carey, 403 U.S. 144 
( 1977) ....................... 68

IX



Cases
Page

U.S. v. Bd. of Supervisors of 
Forrest County, 571 F .2d 
951 (5th Cir. 1978)   56

U.S. v. Carolene Products Co.,
304 U.S. 1 44 (1938) ......... 71

U.S. v. Dallas County Commission,
739 F .2d 1529 (11th Cir.
1984) ........................  97

U.S. v. Executive Committee of 
Democratic Party of Greene 
County, Ala. 254 F. Supp.
543 (S.D. Ala. 1966) ........ 84,85

U.S. v. Marengo County Commission,
731 F .2d 1546 (11th Cir.
1984) .................. 56,57,85,96,

108,130
Velasquez v. City of Abilene,

725 F .2d 1017 (5th Cir.
1980)-..........................  56,96

Wallace v. House, 515 F .2d 619
(5th Cir. 1975) .............. 56,59

Whitcomb v. Chavis, 403 U.S.
1 24 ( 1 971 ) ...................  1 29

White v. Regester, 412 U.S.
755 (1973) ......... passim

Zimmer v. McKeithen, 485 F .2d 1297 
(5th Cir. 1973)(en banc), 
aff'd sub nom East Carroll 
Parish School Board v. Marshall,
424 U.S. 636 (1976) ___  30,55,58,96

x



Page

OTHER AUTHORITIES 
Statutes
Section 5, Voting Rights Act of 

1965, 42 U.S.C.§ 1 973c ...............  3,4,22,133
Voting Rights Act Amendments of 

1982, Section 2,
96 Stat. 131, 42 U.S.C.§1973   passim

Federal Rules of Civil Procedure,
Rule 52(a)   67,98,100,101

Constitutional Provisions:
Fourteenth and Fifteenth

Amendments ................  passim
House and Senate Bills
H.R. 3198, 97th Cong., 1st Sess.,

§2 ..........................

H.R. 3112, 97th Cong., 1st
Sess. , §201 .............. 23

Senate Bill S. 1992 ..........  33,34,36
Congressional Reports
House Report No. 97-227, 97th

Cong., 1st Sess. (1981) passim
Senate Report No. 97-417, 97th

Cong., 2d Sess. (1982) ... passim
xi



Page
Congressional Hearings
Hearings before the Subcommittee 

on Civil and Constitutional 
Rights of the House Judiciary 
Committee, 97th Cong., 1st Sess 
(1981) .....................

Hearings before the Subcom­
mittee on the Constitution 
of the Senate Judiciary 
Committeeon S.53, 97th Cong.,
2d Sess. (1982) . 28,34,35,41, 

42,43
Congressional Record
1 28 Cong. Rec. 

2, 1981)
Cong. Rec. 
5, 1981)

(daily ed. Oct.
25,26,29

1 28 (daily ed., Oct.
26,27,29

1 28 Cong. Rec. 
15, 1981)

(daily ed. Oct.
29

1 28 Cong. Rec. 
1982) ...

(daily ed. June 9,
35,37,40,47

48,54,82
1 28 Cong. Rec. 

1982) ...
(daily ed. June 10,

35,37
1 28 Cong. Rec. 

1982) ...
(daily ed. June 15,

29,34,37,82
128 Cong. Rec. 

1982) ...
(daily ed. June 16,

56
Xll



Page
128 Cong. Rec. (daily ed. June 17,

1982) ..................  31 ,34,37,3948,53,82
128 Cong. Rec. (daily ed. June

18, 1982) .......... 29,37,46,48,5372,82
128 Cong. Rec. (daily ed. June 

23 1982) ................ 34
Miscellaneous
Joint Center for Political Studies 

National Roster of Black 
Elected Officials 
M984) ..................... 1

Los Angeles Times, May 4,
1 Qfi 9 .................... 43

Wall Street Journal, May 4,1 QR? ..................... 43
New York Times, Dec. 18, 1981, 

p. B7, col. 4 ............ 41

x m -



STATEMENT OF THE CASE1

This is an action challeng ing the
districting plan adopted in 1982 for the
election of the North Carolina legisla-
ture. North Carolina has long had the 
smallest percentage of blacks in its state *
legislature of any state with a substan-

2tial black population. Prior to this
litigation no more than 4 of the 120 state
representatives, or 2 of the 50 state

The opinion of the district court as 
reprinted in the appendix to the 
Jurisdictional Statement has two signifi­
cant typographical errors. The Appendix at 
J.S. 34a and 36a states, "Since then two 
black citizens have run successfully in 
the (Mecklenburg Senate district) ..." 
and "In Halifax County, black citizens 
have run successfully..." Both sentences 
of the opinion actually read "have run 
unsuccessfully." (Emphasis added). Due to 
THese and other errors, the opinion has 
been reprinted in the Joint Appendix, at 
JA5-JA58.
See Joint Center for Political Studies, 
National Roster of Black Elected Officials 
(1984) 14, 16-17; JA Ex. Vol. I, Ex. 1.



2

senators, were black. Although blacks are
22.4% of the state population, the number
of blacks in either house of the North
Carolina legislature had never exceeded
4%. The first black was not elected to
the House until 1968, and the first black
state senator was not elected until 1974.
North Carolina makes greater use of at
large legislative elections than most
other states; under the 1982 districting
plan 98 of the 120 representatives and 30
of the 50 state senators were to be chosen

4from multi-member districts.
In July 1981, following the 1980 

census, North Carolina initially adopted a 
redistricting plan involving a total of 
148 multi-member and 22 single member dis- 3 4

3 Stip. 96, JA 94-5.
4 Stip. Ex. BB and EE, Chapters 1 and 2 

Sess. Laws of 2nd Extra Session 1982, JA 
67.



3

tricts.5 Under this plan every single 
House and Senate district had a white 
majority. ® There was a population devia­
tion of 22% among the proposed districts.

Forty of North Carolina's 100 
counties are covered by section 5 of the 
Voting Rights Act; accordingly, the state 
was required to obtain preclearance of 
those portions of the redistricting plan 
which affected those 40 counties. North 
Carolina submitted the 1981 plan to the 
Attorney General, who entered objections 
to both the House and Senate plans, having 
concluded that "the use of large multi­
member districts effectively submerges 
cognizable concentrations of black

5 Stip. Ex. D and F, Chapters 800 and 821 
Sess. Laws 1981, JA 61.
The opinion states one district was 
majority black in population, JA7, 
referring to the second 1981 plan, 
enacted in October after this lawsuit was 
filed. Stip. Ex. L, JA 62.

6



4

population into a majority white elec­
torate." Stip. Ex. N and 0, JA63. For 
similar reasons, the Attorney General also 
objected to Article 2 Sections 3(3)and 
5(3) of the North Carolina Constitution, 
adopted in 1967 but not submitted for 
preclearance until after this lawsuit was 
filed, which forbade the subdivision of 
counties in the formation of legislative 
districts. Stip. 22, JA 63.

Appellees filed this action in 
September 1981, alleging, inter alia, that 
the 1981 redistricting plan violated 
section 2 of the Voting Rights Act and the 
Fourteenth Amendment. Following the 
objections of the Attorney General under 
section 5, the state adopted two subse­
quent redistricting plans; the complaint 
was supplemented to challenge the final 
plans, which were adopted in April, 1982. 
Stips. 42,43; JA 67. In June 1982 Congress



5

amended section 2 to forbid election 
practices with discriminatory results, and 
the complaint was amended to reflect that 
change; thereafter the litigation focused 
primarily on the application of the 
amended section 2 to the circumstances of 
this case. Appellees contended that six 
of the multi-member districts had a 
discriminatory result which violated 
section 2, and that the boundaries of one 
single member district also violated that 
provision of the Voting Rights Act.

After an eight day trial before 
Judges J. Dickson Phillips, Jr., Franklin 
T. Dupree, Jr., and W. Earl Britt, Jr., 
the court unanimously upheld plaintiffs' 
section 2 challenge. The court enjoined 
elections in the challenged districts 
pending court approval of a districting

7plan which did not violate section 2. By 7

7 Appellees did not challenge all multi-



6

subsequent orders, the court approved the 
State's proposed remedial districts for 
six of the seven challenged districts. The 
court entered a temporary order providing 
for elections in 1 984 only in one dis­
trict, former House District No. 8, after 
appellants' proposed remedial plan was 
denied preclearance under section 5. The 
remedial aspects of the litigation have 
not been challenged and are not before 
this Court.

On appeal appellants have disputed 
the correctness of the three judge 
district court's decision regarding the 
legality of five of the six disputed 
multi-member districts. Although appel­
lants have referred to some facts from

member districts used by the state and 
the district court did not rule that the 
use of multi-member districts is per 
se illegal. The district court's order 
leaves untouched 30 multi-member districts 
in the House and 13 in the Senate.



7

House District No. 8 and Senate District 
No. 2, they have made no argument in their 
Brief that is pertinent to the lower 
court's decision concerning either of 
these districts.® Like the United States, 
we assume that the correctness of the 
decision below regarding House District 
No. 8 and Senate District No. 2 is not 
within the scope of this appeal.

THE FINDINGS OF THE DISTRICT COURT

The gravamen of appellees' claim 
under section 2 is that minority voters in 
the challenged multi-member districts do 
not have an equal opportunity to partici­
pate effectively in the political process, 8

8 The Court did not note probable juris­
diction as to Question II, the question in 
the Jurisdictional Statement concerning 
these two districts, and even the 
Solicitor General concedes that there is 
no basis for appeal as to these two 
districts. U.S. Br. 11.



8

and particularly that they do not have an 
equal opportunity to elect candidates of 
their choice. Five of the challenged 1982 
multi-member districts were the same as 
had existed under the 1971 plan, and the 
one that was different, House District 39, 
was only modified slightly. The election 
results in those districts are undisputed. 
Until 1972 no black since Reconstruction 
had been elected to the legislature from 
any of the counties in question. The 
election results since 1972 are set forth 
on the table on the opposite page. As 
that table indicates, prior to 1982 no 
more than 3 of the 32 legislators elected 
in any one election in the challenged 
districts were black; in 1981, when this 
action was filed, five of the seven 
districts were represented by all white 
delegations, and three of the districts 
still had never elected a black legisla­



9

tor. The black population of 
lenged districts ranged from

the chal- 
21.8% to

39.5%. JA 21.
The district court held on the basis 

of this record and its examination of 
election results in local offices that 
"[t]he overall results achieved to date 
... are minimal." JA 39. The court noted 
that, following the filing of this action, 
the number of successful black legislative 
candidates rose sharply. It concluded, 
however, that the results of the 1982 
election were an aberration unlikely to 
recur again. It emphasized in particular 
that in a number of instances "the 
pendency of this very litigation worked a 
one-time advantage for black candidates in 
the form of unusual organized political 
support by white leaders concerned to 
forestall single-member districting." JA
39 n.27.



10

The district court identified a 
number of distinct practices which put 
black voters at a comparative disadvantage 
when placed in the six majority white 
multi-member districts at issue. The 
court noted, first, that the proportion of 
white voters who ever voted for a black 
candidate was extremely low; an average of 
81% of white voters did not vote for any 
black candidate in primary elections 
involving both black and white candidates, 
and those whites who did vote for black 
candidates ranked them last or next to 
last. JA 42. The court noted that in none 
of the 53 races in which blacks ran for 
office did a majority of whites ever vote 
for a black candidate, and the sole 
election in which 50% voted for the black 
candidate was one in which that candidate 
was running unopposed. JA. 43-48. The 
district court concluded that this pattern



of polarized voting pat black candidates 
at a severe disadvantage in any race 
against a white opponent.

The district court also concluded 
that black voters were at a comparative 
disadvantage because the rate of registra­
tion among eligible blacks was substan­
tially lower than among whites. This 
disparity further diminished the ability 
of black voters to make common cause with 
sufficient numbers of like minded voters 
to be able to elect candidates of their 
choice. The court found that these 
disparities in registration rates were the 
lingering effect of a century of virulent 
official hostility towards blacks who 
sought to register and vote. The tactics 
adopted for the express purpose of 
disenfranchising blacks included a poll 
tax, a literacy test with a grandfather 
clause, as well as a number of devices



1 2

which discouraged registration by assuring 
the defeat of black candidates. JA 25-26. 
When the use of the state literacy test 
ended after 1970, whites enjoyed a 60.6% 
to 44.6% registration advantage over 
blacks. Thereafter registration was kept 
inaccessible in many places, and a decade 
later the gap had narrowed only slightly, 
with white registration at 66.7%, and 
black registration at 52.7%. JA 26 and 
n. 22.

The trial court held that the ability 
of black voters to elect candidates of 
their choice in majority white districts 
was further impaired by the fact that 
black voters were far poorer, and far more 
often poorly educated, than white voters. 
JA 28-31. Some 30% of blacks had incomes 
below the poverty line, compared to 10% of 
whites; conversely, whites were twice as 
likely as blacks to earn over $20,000 a



13

year. Almost all blacks over 30 years old 
attended inferior segregated schools. JA 
29. The district court concluded that 
this lack of income and education made it 
difficult for black voters to elect 
candidates of their choice. JA 31. n.23. 
The record on which the court relied 
included extensive testimony regarding the 
difficulty of raising sufficient funds in 
the relatively poor black community to 
meet the high cost of an at-large cam­
paign, which has to reach as many as eight 
times as many voters as a single district 
campaign. (See notes 107-109, infra).

The ability of minority candidates to 
win white votes, the district court found, 
was also impaired by the common practice 
on the part of white candidates of urging 
whites to vote on racial lines. JA 33-34. 
The record on which the court relied



included such appeals in campaigns in
1976, 1980, 1982, and 1983. (See page 115, 
infra). In both 1980 and 1983 white 
candidates ran newspaper advertisements 
depicting their opponents with black 
leaders. In 1983 Senator Helms denounced 
his opponent for favoring black voter 
registration, and in a 1982 congressional 
run-off white voters were urged to go to 
the polls because the black candidate 
would be "bussing" [sic] his "block" [sic] 
vote. (See pp. 116-18, infra).

The district court, after an exhaus­
tive analysis of this and other evidence, 
concluded that the challenged multi-member 
districts had the effect of submerging 
black voters as a voting minority in those 
districts, and thus affording them "less 
opportunity than ... other members of the



15

electorate to participate in the political 
process and to elect representatives of 
their choice." JA 53-54.^

SUMMARY OF ARGUMENT

Section 2 of the Voting Rights Act 
was amended in 1982 to establish a 
nationwide prohibition against election 
practices with discriminatory results. 
Specifically prohibited are practices that 
afford minorities "less opportunity than 
other members of the electorate to 
participate in the political process and 
to elect representatives of their choice". 
(Emphasis added). In assessing a claim of 
unequal electoral opportunity, the courts 
are required to consider the "totality of 
circumstances". A finding of unequal 9

9 Based on similar evidence the court made a 
parallel finding concerning the fracturing 
of the minority community in Senate 
District No. 2. JA 54.



16

opportunity is a factual finding subject 
to Rule 52. Anderson v.City of Bessemer 
City, ___ U.S. ___ ( 1985).

The 1982 Senate Report specified a 
number of specific factors the presence of 
which, Congress believed, would have the 
effect of denying equal electoral oppor­
tunity to black voters in a majority white 
multi-member district. The three-judge 
district court below, in an exhaustive and 
detailed opinion, carefully analyzed the 
evidence indicating the presence of each 
of those factors. In light of the 
totality of circumstances established by 
that evidence, the trial court concluded 
that minority voters were denied equal 
electoral opportunity in each of the six 
challenged multi-member districts. The 
court below expressly recognized that 
section 2 did not require proportional 
representation. JA 17.



1 7

Appellants argue here, as they did at 
trial, that the presence of equal elec­
toral opportunity is conclusively estab­
lished by the fact blacks won 5 out of 30 
at-large seats in 1982, _I_4 months after 
the complaint was filed. Prior to 1972, 
however, although blacks had run, no 
blacks had ever been elected from any of 
these districts, and in the election held 
immediately prior to the commencement of 
this action only 2 blacks were elected in 
the challenged districts. The district 
court properly declined to hold that the 
1982 elections represented a conclusive 
change in the circumstances in the 
districts involved, noting that in several 
instances blacks won because of support 
from whites seeking to affect the outcome 
of the instant litigation. JA 39 n.27.



18

The Solicitor General urges this 
Court to read into section 2 a per se rule 
that a section 2 claim is precluded as a 
matter of law in any district in which 
blacks ever enjoyed "proportional repre­
sentation", regardless of whether that 
representation ended years ago, was 
inextricably tied to single shot voting, 
or occurred only after the commencement of 
the litigation. This per se approach is 
inconsistent with the "totality of 
circumstances" requirement of section 2, 
which precludes treating any single factor 
as conclusive. The Senate Report ex­
pressly stated that the election of black 
officials was not to be treated, by 
itself, as precluding a section 2 claim.
S. Rep. No. 97-417, 29 n.115.

The district court correctly held 
that there was sufficiently severe 
polarized voting by whites to put minority



19

voters and candidates at an additional 
disadvantage in the majority white 
multi-member districts. On the average 
more than 81% of whites do not vote for 
black candidates when they run in primary 
elections. JA 42. Black candidates 
receiving the highest proportion of black 
votes ordinarily receive the smallest 
number of white votes. Id.

ARGUMENT
I. SECTION 2 PROVIDES MINORITY VOTERS

AN EQUAL OPPORTUNITY TO ELECT REPRE­
SENTATIVES OF THEIR CHOICE

Two decades ago Congress adopted the 
Voting Rights Act of 1965 in an attempt to 
end a century long exclusion of most 
blacks from the electoral process. In 
1981 and 1 982 Congress concluded that, 
despite substantial gains in registration 
since 1965, minorities still did not enjoy 
the same opportunity as whites to parti­



20

cipate in the political process and to 
elect representatives of their choice,1^and 
that further remedial legislation was 
necessary to eradicate all vestiges of 
discrimination from the political pro­
cess.11 The problems identified by Congress 
included not only the obvious impediments 
to minority participation, such as 
registration barriers, but also election 
schemes such as those at—large elections 
which impair exercise of the franchise and 
dilute the voting strength of minority 
citizens. Although some of these practices 
had been corrected in certain jurisdic­
tions by operation of the preclearance 
provisions of Section 5, Congress con- 10 11

10 s. Rep. No. 97-417, 97th Cong., 2d Sess., 
34 (1982) (hereinafter cited as "Senate 
Report").

11 Senate Report 40; H.R. Rep. No. 97-227, 
97th Cong., 1st Sess., 31 (1981) (here­
inafter cited as "House Report").



21

eluded that their eradication required the
adoption, in the form of an amendment to

1 2  . . .Section 2/ of sl ne t io ne 1 prohibition 
against practices with discriminatory 
results.12 13 Section 2 protects not only the 
right to vote, but also "the right to have 
the vote counted at full value without 
dilution or discount." Senate Report 19.

A. Legislative History of the 1982 
Amendment to Section T~

The present language of section 2 was 
adopted by Congress as part of the Voting 
Rights Act Amendments of 1982. (96 Stat.
131). The 1 982 amendments altered the 
Voting Rights Act in a number of ways,

12 House Report, 28; Senate Report 15.
13 Appellants and the Solicitor General 

concede that the framers of the 1982 
amendments established a standard of proof 
in vote dilution lawsuits based on 
discriminatory results alone. Appellants' 
Br. at 16; U.S. Brief II at 8, 13.



22

extending the pre-clearance requirements 
of section 5, modifying the bailout 
requirements of section 4, continuing 
until 1992 the language assistance 
provisions of the Act, and adding a new 
requirement of assistance to blind, 
disabled or illiterate voters. Congres­
sional action to amend section 2 was 
prompted by this Court's decision in 
Mobile v. Bolden, 446 U.S. 55, 60-61
(1980), which held that the original 
language of section 2, as it was framed in 
1965, forebade only election practices 
adopted or maintained with a discrimina­
tory motive. Congress regarded the
decision in Bolden as an erroneous

1 4interpretation of section 2, and thus 
acted to amend the language to remove any 
such intent requirement. 14

14 House Rep. at 29; Senate Report at 19.



23

Legislative proposals to extend the 
Voting Rights Act in 1 982 included from 
the outset language that would eliminate 
the intent requirement of Bolden and apply 
a totality of circumstances test to 
practices which merely had the effect of 
discriminating on the basis of race or 
color.^ Support for such an amendment was 
repeatedly voiced during the extensive 
House hearings and much of this testimony 
was concerned with at-large election plans 
that had the effect of diluting the impact 
of minority votes. ̂  On July 31 the House 15 16

15 H.R. 3112, 97th Cong., 1st Sess., § 201;
H.R. 3198, 97th Cong., 1st Sess., § 2.

16 -phe three volumes of Hearings before the
Subcommittee on Civil and Constitutional 
Rights of the House Judiciary Committee, 
97th Cong., 1st Sess., are hereinafter 
cited as "House Hearings." Testimony 
regarding the proposed amendment to 
section 2 can be found at 1 House 
Hearings 18-19, 138, 197, 229, 365,
424-25, 454, 852; 2 House Hearings 905-07, 
993-95, 1279, 1361, 1641; 3 House Hearings 
1880, 1991, 2029-32, 2036-37, 2127-28,
2136, 2046-47, 2051-58.



Judiciary Committee approved a bill that 
extended the Voting Rights Act and 
included an amendment to section 2 to 
remove the intent requirement imposed by 
Bolden.17 The House version included an 
express disclaimer to make clear that the 
mere lack of proportional representation 
would not constitute a violation of the 
law, and the House Report directed the 
courts not to focus on any one factor but

- 24 -

17 House Report, 48:
"No voting qualification or prere­

quisite to voting, or standard, practice, 
or procedure shall be imposed or applied 
by any state or political subdivision [to 
deny or abridge] in a manner which results 
in a denial or abridgment of the right of 
any citizen to vote on account of race or 
color, or in contravention of the guaran­
tees set forth in section 4(b)(2). The 
fact that members of a minority group 
have not been elected in numbers 
equal to the group's proportion of 
the population shall not, in and of 
itself, constitute a violation of this
section.''



25

to look at all the relevant circumstances 
in assessing a Section 2 claim. H. Rep. 
at 30.

The House Report set forth the
committee's reasons for disapproving any
intent requirement, and described a
variety of practices, particularly the use

1 8of at-large elections and limitations on
1 9the times and places of registration, with

whose potentially discriminatory effects
the Committee was particularly concerned.

On the floor of the House the proposed
amendment to section 2 was the subject of
considerable debate. Representative
Rodino expressly called the attention of

20the House to this portion of the bill, to 
which he and a number of other speakers 18 19 *

18 House Report, 17-19, 30.
19 Id. 14, 16, 17, 30, 31 n.105.
28 128 Cong. Rec. H 6842 (daily ed. Oct. 2, 

1981) .



26

gave support. Proponents of section 2 
emphasized its applicability to multi­
member election districts that diluted
minority votes, and to burdensome regis-

22tration and voting practices. A number of
speakers opposed the proposed alteration 

2 3to section 2, and Representative Bliley 
moved that the amendment to section 2 be 
deleted from the House bill. The Bliley 21 22 23

21

21 128 Cong. Rec. H 6842 (Rep. Rodino), H 
6843 (Rep. Sensenbrenner), H 6877 (Rep. 
Chisholm) (daily ed., Oct. 2, 1981); 128 
Cong. Rec. H 7007 (Rep. Fascell)(daily 
ed., Oct. 5, 1981).

22 128 Cong. Rec. H 6841 (Rep. Glickman; 
dilution), H 6845-6 (Rep. Hyde; registra­
tion barriers) , H 6847 (Rep. Bingham; 
voting practices, dilution); H 6850 (Rep. 
Washington, registration and voting 
barriers); H 6851 (Rep. Fish, dilution) 
(daily ed., Oct. 2, 1981).

23 1 2 8 Cong. Rec. H 6866 (Rep. Collins), H
6874 (Rep. Butler)(daily ed., Oct. 2, 
1981); 128 Cong. Rec. H 6982-3 (Rep.
Bliley), H 6984 (Rep. Butler, (Rep. 
McClory) , H 6985 (Rep. Butler)(daily ed., 
Oct. 5, 1981).



27

amendment was defeated on a voice vote.
Following the rejection of that and other
amendments the House on October 5, 1981

25passed the bill by a margin of 389 to 24.
On December 16, 1981, a Senate bill

essentially identical to the House passed 
bill was introduced by Senator Mathias. 
The Senate bill, S.1992, had a total of 61 
initial sponsors, far more than were 
necessary to assure passage. 2 Senate 
Hearings 4, 30, 157. The particular
subcommittee to which S.1992 was referred, 
however, was dominated by Senators who 
were highly critical of the Voting Rights 
Act amendments. After extensive hear- 24 25

24

24 128 Cong. Rec. H 6982-85 (daily ed., Oct. 
5, 1981).

25 Id. at H6985.



28

ings, most of them devoted to section 2, 
the subcommittee recommended passage of
S. 1 992, but by a margin of 3-2 voted to 
delete the proposed amendment to section
2. 2 Senate Hearings 10. In the full
committee Senator Dole proposed language 
which largely restored the substance of S. 
1 992 ; included in the Dole proposal was 
the language of section 2 as it was 
ultimately adopted. The Senate Commmittee 
issued a lengthy report describing in 
detail the purpose and impact of the 
section 2 amendment. Senate Report 15-42.

The report expressed concern with two 
distinct types of practices with poten­
tially discriminatory effects— first, 
restrictions on the times, places or 26

2 6

26 id. Hearings before the Subcommitee on 
tFe Constitution of the Senate Judiciary 
Committee on S.53, 97th Cong., 2d Sess. 
( 1 982) (hereinafter cited as "Senate 
Hearings").



29

methods of registration or voting, the
burden of which would fall most heavily on 

27minorities, and, second, election systems
such as those multi-member districts which
reduced or nullified the effectiveness of
minority votes, and impeded the ability of
minority voters to elect candidates of
their choice. The Senate debates leading
to approval of the section 2 amendment

29reflected similar concerns.
The Senate report discussed the 

various types of evidence that would bear 
on a section 2 claim, and insisted that 
the courts were to consider all of this 
evidence and that no one type of evidence 27 * 29

27 Senate Report, 30 n.119.
2® Senate Report, 27-30.
29 128 Cong. Rec. S 6783 (daily ed. June 15, 

1982)(Sen. Dodd); 128 Cong. Rec. S 7111 
(daily ed. June 1 8, 1982) (Sen. Met-
zenbaum), S7113 (Sen. Bentsen), S 7116 
(Sen. Weicker) , S 7137 (Sen. Robert 
Byrd).



30

should be treated as conclusive. Both the 
Senate Report and the subsequent debates 
make clear that it was the intent of 
Congress, in applying the amended section 
2 to multi-member districts, to reestab­
lish what it understood to be the totality 
of circumstances test that had been estab­
lished by White v.Regester, 412 U.S. 755 
(1973),^1and that had been elaborated upon
by the lower courts in the years between

3 2White and Bolden. The most important and
frequently cited of the courts of appeals

33dilution cases was Zimmer v. McKeithen, 30 31 32 33

30 Senate Report, 23, 27.
31 Senate Report, 2, 27, 28, 30, 32.
32 Senate Report, 16, 23, 23 n.78, 28, 30, 

31, 32.
33 zimmer was described by the Senate Report

as a ^seminal" decision, jl<3. at 22, and 
was cited 9 times in the Report. Id. at 
22, 24, 24 n.86, 28 n.112, 28 n.113, 29 
n . 1 1 5, 29 n. 1 1 6, 30, 32, 33. Senator
DeConcini, one of the framers of the Dole 
proposal, described Zimmer as " [p]erhaps 
the clearest expression of the standard of

30



31

485 F . 2d 1 297 ( 5th Cir. 1973)(en banc), 
aff'd sub nom. East Carroll Parish School 
Board v. Marshall, 424 U.S. 636 ( 1976). 
The decisions applying White are an 
important source of guidance in a section 
2 dilution case.

The legislative history of section 2 
focused repeatedly on the possibly 
discriminatory impact of multi-member 
districts. Congress was specifically 
concerned that, if there is voting along 
racial lines, black voters in a majority 
white multi-member district would be 
unable to compete on an equal basis with 
whites for a role in electing public 
officials. Where that occurs, the white 
majority is able to determine the outcome 
of elections and white candidates are able * 1

proof in these vote dilution cases." 128 
Cong. Rec. S6930 (daily ed. June 17,
1 982) .



32

to take positions without regard to the 
votes or preferences of black voters, 
rendering the act of voting for blacks an 
empty and ineffective ritual. The Senate 
Report described in detail the types of 
circumstances, based on the White/Z immer 
factors, under which blacks in a multi­
member district would be less able than 
whites to elect representatives of their 
choice. Senate Report, 28-29.

The Solicitor General, in support of 
his contention that a section 2 claim may 
be decided on the basis of a single one of 
the seven Senate Report factors— electoral 
success— regardless of the totality of the 
circumstances, offers an account of the 
legislative history of section 2 which is, 
in a number of respects, substantially 
inaccurate. First, the Solicitor asserts 
that, when the amended version of S. 1992 
was reported to the full Judiciary



33

Committee, there was a "deadlock." U.S. 
Br. I, 8; Br. II, 8 n.12. The legislative 
situation on May 4, 1 982 when the Dole
proposal was offered, could not conceiv­
ably be characterized as a "deadlock," and 
was never so described by any supporter of 
the proposal. The entire Judiciary
Committee favored reporting out a bill 
amending the Voting Rights Act, and fully 
two thirds of the Senate was committed to 
restoring the House results test if the 
Judiciary Committee failed to do so. 
Critics of the original S.1992 had neither
the desire nor the votes to bottle up the

34bill in Committee, and clearly lacked the 
votes to defeat the section 2 amendment on 
the floor of the Senate. The leading 34

34 2 Senate Hearings 
("[W]hatever happens 
amendment, I intend to 
reporting of the Voting 
Committee")

69 (Sen. Hatch) 
to the proposed 
support favorable 
Rights Act by this



34

Senate opponent of the amendment acknowl­
edged that passage of the amendment had
been foreseeable "for many months" prior

35to the full Committee's action. Senator
Dole commented, when he offered his
proposal, that "without any change the
House bill would have passed." 2 Senate
Hearings 57. Both supporters35 36 37and oppo- 

*3 7nents of section 2 alike agreed that the

35 2 Senate Hearings 69 (Sen. Hatch).
36 Senate Report, 27 (section 2 "faithful to

the basic intent" of the House bill); 2 
Senate Hearings 60 (Sen. Dole)("[T]he 
compromise retains the results standards 
of the Mathias/Kennedy bill. However, we 
also feel that the legislation should be 
strengthened with additional language 
delineating what legal standard should 
apply under the results test...") (Empha­
sis added), 61 (Sen. Dole)(language 
"strengthens the House-passed bill") 68 
(Sen. Biden)(new language merely "clari­
fies" S.1992 and "does not change much"), 
128 Cong. Rec. S6960-61 (daily ed. June 
17, 1982) (Sen. Dole); 128 Cong. Rec.
H3840 (daily ed. June 23, 1982) (Rep.
Edwards).

37 2 Senate Hearings 70 (Sen. Hatch)("The 
proposed compromise is not a compromise at 
all, in my opinion. The impact of the



35

language proposed by Senator Dole and 
ultimately adopted by Congress was 
intended not to water down the original 
House bill, but merely to spell out more 
explicitly the intended meaning of
legislation already approved by the
„ 38House.

The Solicitor urges the Court to give 
little weight to the Senate Report 
accompanying S.1992, describing it as 38

proposed compromise is not likely to be 
one whit different than the unamended 
House measure" relating to section 2; 
Senate Report, 95 (additional views of 
Sen. Hatch); 128 Cong. Rec. (daily ed. 
June 9, 1982) S6515, S.6545 (Sen. Hatch); 
128 Cong. Rec. (daily ed. June 10, 1982) S 
6725 (Sen. East); 128 Cong. Rec. (daily 
ed., June 15, 1982) S.6786 (Sen. Harry 
Byrd).

38 The compromise language was designed to 
reassure Senate cosponsors that the White 
v. Regester totality of circumstances test 
e ndorsed in the House, and espoused 
throughout the Senate hearings by sup­
porters of the House passed bill, would be 
codified in the statute itself. 2 Senate 
Hearings 60; Senate Report, 27.



36

merely the work of a faction. U.S. Br. I,
8 n . 6; U.S. Br. II, 8 n.12, 24 n.49.
Nothing in the legislative history of
section 2 supports the Solicitor's
suggestion that this Court should depart
from the long established principle that
committee reports are to be treated as the
most authoritative guide to congressional
intent. Garcia v. United States, 105
S.Ct. 479, 483 (1984). Senator Dole, to
whose position the Solicitor would give
particular weight, prefaced his Additional
Views with an acknowledgement that "[T]he
Committee Report is an accurate statement
of the intent of S. 1992, as reported by

39the Committee." On the floor of the 
Senate both supporters and opponents of

3 9 Senate Report 193; see also id. at 196 ("I 
express my views not to talce issue with 
the body of the report") 199 ("I concur 
with the interpretation of this action in 
the Committee Report."), 196-98 (addi­
tional views of Sen. Grassley).



37

section 2 agreed that the Committee report
constituted the authoritative explanation

40of the legislation. Until the filing of
its briefs in this case, it was the
consistent contention of the Department of
Justice that in interpreting section 2
” [t]he Senate Report... is entitled to
greater weight than any other of the

41legislative history." Only in the spring 
of 1 985 did the Department reverse its 
position and assert that the Senate report 
was merely the view of one faction that

40 128 Cong. Rec. S6553 (daily ed., June 9, 
1982) (Sen. Kennedy); S6646-48 (daily ed. 
June 10, 1982) (Sen. Kennedy); S6781 (Sen. 
Dole)(daily ed. June 15, 1982); S6930-34 
(Sen. DeConcini), S6941-44, S6967 (Sen. 
Mathias), S6960, 6993 (Sen. Dole), S6967 
S6991-93 (Sen. Stevens), S6995 (Sen. 
Kennedy)(daily ed. June 17, 1982);
S7091-92 (Sen. Hatch), S7095-96 (Sen. 
Kennedy)(daily ed., June 18, 1982).

4  ̂ Post-Trial Brief for the United States of 
America, County Council of Sumter County, 
South Carolina v"I United States, No. 
82-091 2 (D .D .C .), 5 i.



38

"cannot be taken as determinative on all 
counts." U.S. Br. I, p. 24, n.49. This
newly formulated account of the legisla­
tive history of section 2 is clearly 
i ncorrect.

The Solicitor urges that substantial
weight be given to the views of Senator

4? 43Hatch, and his legislative assistant. In
fact, however, Senator Hatch was the most
intransigie nt congressional critic of
amended section 2 , and he did not as the 42 43

42 jn an amicus brief in City Council of the 
City of Chicago v. Ketchum, No. 84-827, 
referred to in his" brief in this case, 
U.S. Br. II 21 n.43, the Solicitor asserts 
that Senator Hatch "supported the com­
promise adopted by Congress." Brief for 
United States as Amicus, 16 n.15.

43 The Solicitor cites for a supposedly 
authoritative summary of the origin and 
meaning of section 2 an article written by 
Stephen Markman. U.S. Br. II, 9, 10. 
Mr. Markman is the chief counsel of the 
Judiciary Subcommittee chaired by Senator 
Hatch, and was Senator Hatch's chief 
assistant in Hatch's unsuccessful opposi­
tion to the amendment to section 2 .



39

Solicitor suggests support the Dole
proposal. On the contrary, Senator Hatch
urged the Judiciary Committee to reject

4 4the Dole proposal, and was one of only
four Committee members to vote against
it . 44 4 5  46 47 Following the Committee's action,
Senator Hatch appended to the Senate
Report Additional Views objecting to this

46modified version of section 2. On the
floor of the Senate, Senator Hatch
supported an unsuccessful amendment that
would have struck from the bill the
amendment to section 2 that had been

47adopted by the Committee, and again 
denounced the language which eventually

44 2 Senate Hearings 70-74.
45 id. 85-86.
46 Senate Report, 94-101.
47 128 Cong. Rec. S6965 (daily ed. June 17, 

1982).



40

, . 48became law.
Finally, the Solicitor urges that the 

views of the President regarding section 2 
should be given "particular weight" 
because the President endorsed the Dole 
proposal, and his "support for the 
compromise ensured its passage." U.S. Br. 
I, 8 n.6 . We agree with the Solicitor
General that the construction of section 2 
which the Department of Justice now 
proposes in its amicus brief should be 
considered in light of the role which the 
Administration played in the adoption of 
this legislation. But that role is not, 
as the Solicitor asserts, one of a key 
sponsor of the legislation, without whose 48

48 immediately prior to the final vote on the 
bill, Senator Hatch stated, "these 
amendments promise to effect a destructive 
transformation in the Voting Rights Act." 
128 Cong. Rec. S7139 (daily ed. June 18, 
1982); 128 Cong. Rec. (daily ed. June 9, 
1982) S6 506-21 .



41

support the bill could not have been 
adopted. On the contrary, the Adminis­
tration in general, and the Department of 
Justice in particular, were throughout the 
legislative process among the most consis­
tent, adamant and outspoken opponents of 
the proposed amendment to section 2.

Shortly after the passage of the 
House bill, the Administration launched a 
concerted attack on the decision of the 
House to amend section 2. On November 6 , 
1981, the President released a statement 
denouncing the "new and untested 'effects' 
standard," and urging that section 2 be 
limited to instances of purposeful 
discrimination, 2 Senate Hearings 763,
a position Mr. Reagan strongly reaffirmed

49at a press conference on December 17. 
When in January 1982 the Senate commenced 49

49 New York Times, Dec. 18, 1981, p. B7,
col. 4.



42

hearings on proposed amendments to the 
Voting Rights Act, the Attorney General 
appeared as the first witness to denounce 
section 2 as "just bad legislation," 
objecting in particular to any proposal to 
apply a results standard to any state not 
covered by section 5. 1 Senate Hearings
70-97. At the close of the Senate 
Hearings in early March the Assistant 
Attorney General for Civil Rights gave 
extensive testimony in opposition to the 
adoption of the totality of circumstances/ 
results test. _Id. , at 1655 et. seq. Both 
Justice Department officials made an 
effort to solicit public opposition to the 
results test, publishing critical analyses 
in several national newspapers5 0and, in the

50 2 Senate Hearings 770 (Assistant At­
torney General Reynolds) (Washington 
Post), 774 (Attorney General Smith) ( 
Op-ed article, New York Times), 775 
(Attorney General Smith) ( Op-ed article, 
Washington Post).



43

case of the Attorney General, issuing a 
warning to members of the United Jewish 
Appeal that adoption of a results test 
would lead to court ordered racial quo­
tas . ^ 1 The White House did not endorse the 
Dole proposal until after it had the 
support of 13 of the 18 members of the 
Judiciary Committee and Senator Dole had 
warned publicly that he had the votes 
necessary to override any veto.^

Having failed to persuade Congress to 
reject a results standard in section 2 , 
the Department of Justice now seeks to 
persuade this court to adopt an interpre­
tation of section 2 that would severely 
limit the scope of that provision. Under 
these unusual circumstances the Depart- 51 52

51 id. at 780.
52 Los Angeles Times, May 4, 1982, p. 1 ; Wall

Street Journal, May 4, 1982, p. 8 ; 2
Senate Hearings 58.



44

merit's views do not appear to warrant the 
weight that might ordinarily be appro­
priate. We believe that greater deference 
should be given to the views expressed in 
an amicus brief in this case by Senator 
Dole and the other principal cosponsors of 
section 2 .

B . Equal Electoral Opportunity is 
the Statutory Standard

Section 2 provides that a claim of 
unlawful vote dilution is established if, 
"based on the totality of circumstances," 
members of a racial minority "have less 
opportunity than other members to partici­
pate in the political process and to elect

53representatives of their choice." In the 
instant case the district court concluded 
that minority voters lacked such an equal 
opportunity. JA 53-54. 53

5 3 42 U.S.C. § 1973, Section 2(b) is set
forth in the opinion below, JA 13.



45

Both appellants and the Solicitor 
General suggest, however, that section 2 
is limited to those extreme cases in which 
the effect of an at-large election is to 
render virtually impossible the election 
of public officials, black or otherwise, 
favored by minority voters. Thus appel­
lants assert that section 2 forbids use of 
a multi-member district when it "effec­
tively locks the racial minority out of 
the political forum," A. Br. 44, or 
"shut[s] racial minorities out of the 
electoral process" Id_. at 23. The Soli­
citor invites the Court to hold that 
section 2 applies only where minority 
candidates are "effectively shut out of 
the political process". U.S. Br . II 27; 
see also id_. at 1 1 . On this view, the 
election of even a single black candidate 
would be fatal to a section 2 claim.



46

The requirements of section 2, 
however, are not met by an election scheme 
which merely accords to minorities some 
minimal opportunity to participate in the 
political process. Section 2 requires 
that "the political processes leading to 
nomination or election" be, not merely 
open to minority voters and candidates, 
but "equally open". (Emphasis added). The 
prohibition of section 2 is not limited to 
those systems which provide minorities 
with no access whatever to the political 
process, but extends to systems which 
afford minorities "less opportunity than 
other members of the electorate to 
participate in the political process and 
to elect representatives of their choice." 
(Emphasis added).

This emphasis on equality of opportu­
nity was reiterated throughout the 
legislative history of section 2. The



47

Senate report insisted repeatedly that 
section 2 required equality of political 
opportunity.^ Senator Dole, in his 54

54 s. Rep. 97-417, p. 16 ("equal chance to 
participate in the electoral process"; 
"equal access to the electoral process") 
2 0 ("equal access to the political 
process"; at-large elections invalid if 
they give minorities "less opportunity 
than . . . other residents to participate in 
the political processes and to elect 
legislators of their choice") , 2 1 (plain­
tiffs must prove they "had less opportu­
nity than did other residents in the 
district to participate in the political 
processes and to elect legislators of 
their choice"), 27 (denial of "equal 
access to the political process"), 28 
(minority voters to have "the same 
opportunity to participate in the politi­
cal process as other citizens enjoy"; 
minority voters entitled to "an equal 
opportunity to participate in the 
politcal processes and to elect candi­
dates of their choice"), 30 ("denial of 
equal access to any phase of the electoral 
process for minority voters"; standard is 
whether a challenged practice "operated 
to deny the minority plaintiff an equal 
opportunity to participate and elect 
candidates of their choice" ; process must 
be "equally open to participation by the 
group in question"), 31 (remedy should 
assure "equal opportunity for minority 
citizens to participate and to elect 
candidates of their choice").



48

Additional Views, endorsed the committee
report, and reiterated that under the
language of section 2 minority voters were
to be given "the same opportunity as
others to participate in the political
process and to elect the candidates of

5 5their choice". Senator Dole and others
repeatedly made this point on the floor of 

5 6the Senate.
The standard announc ed in White v.

Regester was clearly one of equal oppor-
tu ni ty, prohibiting at - 1 arge elections
which afford minority voters "less
opportunity than ... other residents in 55 *

55 id. at 194 (emphasis omitted); See also 
Tel. at 193 ("Citizens of all races are 
i"ntitled to have an equal chance of 
electing candidates of their choice ...."), 
194 ("equal access to the political 
process).

5° 128 Cong. Rec. S6559 , S6560 (Sen.
Kennedy)(daily ed. June 9, 1982); daily 
e d . June 1 7, 1 982); 128 Cong. Rec.
S7119-20 (Sen. Dole), (daily ed. June 18, 
1982) .



49

the district to participate in the 
political processes and to elect legisla­
tors of their choice." 412 U.S. at 765. 
(Emphasis added). The Solicitor General 
asserts that during the Senate hearings 
three supporters of section 2 described it 
as "merely a means of ensuring that 
minorities were not effectively 'shut out' 
of the electoral process". U.S. Br. II,
11. This is not an accurate description 
of the testimony cited by the Solicitor. ̂  57

57 David Walbert stated that minority 
voters had had "no chance" to win elec­
tions in their earlier successful 
dilution cases, 1 Senate Hearings 626, 
but also noted that the standard under 
White was whether minority voters had an 
^equal opportunity" to do so. W_. Senator 
Kennedy stated that under section 2 
minorities could not be "effectively shut 
out of a fair opportunity to participate 
in the election". d̂_. at 223. Clearly a 
"fair" opportunity is more than any 
minimal opportunity. Armand Derfner did 
use the words "shut out", but not, as the 
Solicitor does, followed by the clause "of 
the political process". Id_. at 810. More 
importantly, both in his oral statement 
(id. at 796, , 800) and his prepared
statement (id. at 811, 818) Mr. Derfner



50

Even if it were, the remarks of three 
witnesses would carry no weight where they 
conflict with the express language of the 
bill, the committee report, and the 
consistent statements of supporters. Ernst 
and Ernst v. Hochfelder, 425 U.S. 185, 204 
n . 24 ( 1976).

C. The Election of Some Minority
Candidates Does Not Conclusively 
Establish The Existence Of Equal 
Political Opportunity

The central argument advanced by the 
Solicitor General and the appellants is 
that the election of a black candidate in 
a multi-member district conclusively 
establishes the absence of a section 2 

violation. The Solicitor asserts, U S. 
B r . I 13-14, that it is not sufficient 
that there is underrepresentation now, or

expressly endorsed the equal opportunity 
standard.



51

that there was underrepresentation for a 
century prior to the filing of the action; 
on the Solicitor's view there must at all 
times have been underrepresentation. Thus 
the Solicitor insists there is no vote 
dilution in Senate District 22, which has 
not elected a black since 1978, and that 
there can be no vote dilution in House 
District 36, because, of eight represen­
tatives, a single black, the first this 
century, was elected there in 1982 after 
this litigation was filed.

This interpretation of section 2 is
plainly inconsistent with the language and
legislative history of the statute.
Section 2(b) directs the courts to
consider "the totality of circumstances,"
an admonition which necessarily precludes
giving conclusive weight to any single 

5 8circumstance. The "totality of circum- 58

58 The Solicitor's argument also flies in the



52

stances" standard was taken from White v. 
Regester, which Congress intended to 
codify in section 2. The House and Senate 
reports both emphasize the importance of 
considering the totality of circumstances, 
rather than focusing on only one or two 
portions of the record. Senate Report 27, 
34-35; House Report, 30. The Senate 
Report sets out a number of ” [t]ypical" 
factors to be considered in a dilution

C  Qcase, of which "the extent to which 
members of the minority group have been *

face of the language of section 2 which 
disavows any intent to establish propor­
tional representation. On the Solicitor's 
view, even if there is in fact a denial of 
equal opportunity, blacks cannot prevail 
in a section 2 action if they have, or 
have ever had, proportional representa­
tion. Thus proportional representation, 
spurned by Congress as a measure of 
liability, would be resurrected by the 
Solicitor General as a type of affirmative 
defense.

59 The factors are set out in the opinion 
below. JA 15.



elected to public office in the juris­
diction" is only one, and admonishes 
"there is no requirement that any partic­
ular number of factors be proved, or that 
a majority of them point one way or the 
other." Senate Report 28-29 . ^  Senator 
Dole, in his additional views accompanying 
the committee report, makes this plain. 
"The extent to which members of a pro­
tected class have been elected under the 
challenged practice or structure is just 
one factor, among the totality of circum­
stances to be considered, and is not 
d ispos i t ive . " Id. at 194. (Emphasis 
added) . ® 1 60 61

- 53 -

60 see also Senate Report 23 ("not every one 
of the factors needs to be proved in order 
to obtain relief").

61 128 Cong. Rec. S6961 (daily ed. June 17, 
1982) (Sen. Dole); 128 Cong. Rec. S7119 
(daily ed. June 18, 1982) (Sen. Dole).



54

The arguments of appellants and the 
Solicitor General that any minority 
electoral success should foreclose a 
section 2 claim were expressly addressed 
and rejected by Congress. The Senate 
Report explains, "the election of a few 
minority candidates does not 'necessarily 
foreclose the possibility of dilution of
the black vote .' " Id . at 29 n.115. Both
White v. Regester and its progeny, as
Congress well knew, had repeatedly
disapproved the contention now advanced by

6 2appellants and the Solicitor. In White
itself, as the Senate Report noted, a 
total of two blacks and five hispanics had 62

62 "The results test, codified by the 
committee bill, is a well-established 
one, familiar to the courts. It has a 
reliable and reassuring track record, 
which completely belies claims that it 
would make proportional representata^ 
tion the standard for avoiding a vio­
lation." ( Emphasis added ) . 1 28 Cong . Rec. 
S6559 (Sen. Kennedy) (daily ed. June 9, 
1982).



55

been elected from the two multi-member 
districts invalidated in that case. Senate 
Report 22. Zimmer v. McKeithenf in a 
passage quoted by the Senate Report, had 
refused to treat "a minority candidate's 
success at the polls [a]s conclusive." Id. 
at 29 n.115. The decision in Zimmer is 
particularly important because in that 
case the court ruled for the plaintiffs 
despite the fact that blacks had won 
two-thirds of the seats in the most recent 
at-large election. 485 F.2d at 1314. The 
dissenters in Z immer unsuccessfully made 
the same argument now advanced by appel­
lants and the Solicitor, insisting "the 
election of three black candidates ... 
pretty well explodes any notion that black 
voting strength has been cancelled or 
minimized". 485 F.2d at 1310 (Coleman, 
J., dissenting). A number of other
lower court cases implementing White had



56

also refused to attach conclusive weight 
to the election of one or more minority 
cand idates.^

There are, as Congress anticipated, a 
variety of circumstances under which the 
election of one or more minority can­
didates might occur despite an absence of 63

6 3  Kirksey v. Board of Supervisors, 554 F.2d 
139', 149 n. 21 (5th Cir .” 1977 )"; Cross v . 
Baxter, 604 F.2d 875, 880 n.7, 1T8"5 (5th. 
Cir. 1979); United States v. Board of
Supervisors of Forrest County, 571 F.2d 
951 , 97T5 (5th Cir. T5T5T1 Wallace v. 
House, 515 F .2d 619, 623 n.2 (5th Cir. 
1975). See also Senator Hollings'
comments on the district court decision in 
McCain v. Lybrand, No. 74-281 (D.S.C.
April 17, 1980), Finding a voting rights 
violation despite some black participation 
on the school board and other bodies. 128 
Cong. Rec. S6865-66 (daily ed. June 16, 
1975). In post-1982 section 2 cases, the 
courts have also rejected the contention 
that the statute only applies where 
minorities are completely shut out. See 
e . g . , United States v. Marengo County 
Commission, 731 F.2d 1546, 1 571-72 (1 1th 
Cir. 1954) , cert. denied, 105 S.Ct. 375 
( 1984); Velasquez v. City of Abilene, 725 
F. 2d 1017, 1 023 ( 5th Cir. 1984) ; Major v. 
Treen, 574 F. Supp. 325 (E.D. La. 1983)
(three-judge court).



57

the equal electoral opportunity required 
by the statute. A minority candidate 
might simply be unopposed in a primary or 
general election, or be seeking election 
in a race in which there were fewer white 
candidates than there were positions to be 
filled . 64 White officials or political

64 The Solicitor General suggests that the 
very fact that a black candidate is 
unopposed conclusively demonstrates that 
the candidate or his or her supporters 
were simply unbeatable. U.S. Br. II, 22 
n . 4 6 , 33 . But the number of white
potential candidates who choose to enter a 
particular at-large race may well be the 
result of personal or political considera­
tions entirely unrelated to the circum­
stances of any minority candidate. 
Evidence that white potential candidates 
were deterred by the perceived strength of 
a minority candidate might be relevant 
rebuttal evidence in a section 2 action, 
but here appellants offered no such 
evidence to explain the absence of a 
sufficient number of white candidates to 
contest all the at-large seats. More­
over, in other cases, the Department of 
Justice has urged courts to find a 
violationof section 2 notwithstanding the 
election of a black candidate running 
unopposed. See United States v. Marengo 
County Commiss ion (S.D. Ala.) No. 
78-474H, Proposed Findings of Fact and 
Conclusions of Law for the United States,



58

leaders, concerned about a pending or 
threatened section 2 action, might 
engineer the election of one or more 
minority candidates for the purpose of 
preventing the imposition of single member 
districts . 6 5 The mere fact that minority 
candidates were elected would not mean 
that those successful candidates were the 
representatives preferred by minority

filed June 21, 1985, p. 8 .
65 zimmer v. McKeithen, 485 F.2d at 1307:

"Such success might, on occasion, be 
attributable to the work of poli­
ticians, 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 election of a black candidate 
will thwart successful challenges to 
electoral schemes on dilution 
grounds. In either situation, a 
candidate could be elected despite 
the relative political backwardness 
of black residents in the electoral 
district."



59

voters. The successful minority candi­
dates might have been the choice, as in 
White v. Regester, 412 U.S. at 755; Senate 
Report, 22, of a white political organiza­
tion, or might have been able to win and 
retain office only by siding with the 
white community on, or avoiding entirely, 
those issues about which whites and 
non-whites disagreed. Even where minority 
voters and candidates face severe inequal­
ity in opportunity, there will occasion­
ally be minority candidates able to 
overcome those obstacles because of 
exceptional ability or "a 'stroke of luck' 
which is not likely to be repeated...."^  

The election of a black candidate may 
also be the result of "single shooting", 
which deprives minority voters of any vote 
at all in every at-large election but one. 66

66 Wallace v. House, 515 F .2d 619, 623 n.2 
(5th Cir. 1975)".



60

In multi-member elections for the North
Carolina General Assembly where there are
no numbered seats, voters may typically
vote for as many candidates as there are
vacancies. Votes which they cast for their
second or third favorite candidates,
however, may result in the victory of that

6 7candidate over the voters' first choice. 
Where voting is along racial lines, the 
only way minority voters may have to give 
preferred candidates a serious chance of 
victory is to cast only one of their 
ballots, or "single shoot," and relinquish 
any opportunity at all to influence the * 1

67 This is especially true in North Carolina 
where, because of the multiseat electoral 
system, a candidate may need votes from 
more than 50% of the voters to win. For 
example, in the Forsyth Senate primary in
1 980, there were 3 candidates for 2 seats. 
If the votes were spread evenly and all 
voters voted a full slate, each candidate 
would get votes from 2/3 or 67% of the 
voters. In such circumstances it would 
take votes from more than 67% of the 
voters to win. N.C.G.S. 163.111(a)(2).



61

6 8election of the other at-large officials.
Where single shot voting is necessary 

to elect a black candidate, black voters 
are forced to limit their franchise in 
order to compete at all in the political 
process. This is the functional equiva­
lent of a rule which permitted white 
voters to cast five ballots for five 
at-large seats, but required black voters 
to abnegate four of those ballots in order 
to cast one ballot for a black candidate.

63 For example, in 1978, in Durham County, 
9 9% of the black voters voted for no one 
but the black candidate, who won. JA Ex. 
Vol. I Ex. 8 . In Wake County in 1 978, 
approximately 80% of the black voters 
supported the black candidate, but 
because not enough of them single shot 
voted the black candidate lost. The next 
year, after substantially more black 
voters concentrated their votes on the 
black candidate, forfeiting their right to 
vote a full slate, the first black was 
elected. Similarly in Forsyth County when 
black voters voted a full slate in 1980, 
the black candidate lost. It was only 
after many black voters declined to vote 
for any white candidates that black 
candidates were elected in 1982. Id.



62

Black voters may have had some opportunity 
to elect one representative of their 
choice, but they had no opportunity 
whatever to elect or influence the 
election of any of the other representa- 
tives. Even where the election of one or 
more blacks suggests the possible exis­
tence of some electoral opportunities for 
minorities, the issue of whether those 
opportunities are the same as the oppor- 69

69 There is no support for appellants' claim 
that white candidates need black support 
to win at-large. Black votes were not 
important for successful white can­
didates. Because of the necessity of 
single shot voting, in most instances 
black voters were unable to affect the 
outcome of other than the races of the few 
blacks who won. For example, white 
candidates in Durham were successful with 
only 5 % of the votes cast by blacks in 
1978 and 1982; in Forsyth, white can­
didates in 1980 who received less than 2% 
of the black vote were successful, and in 
Mecklenburg in 1982, the leading white 
senate candidate won the general 
election although only 5% of black voters 
voted for him. Id. See, JA 244.



63

tunities afforded to whites can only be 
resolved by a distinctly local appraisal 
of all other relevant evidence.

These complex possibilities make 
clear the wisdom of Congress in requiring 
that a court hearing a section 2 claim 
must consider "the totality of circum­
stances," rather than only considering the 
extent to which minority voters have, or 
have not, been underrepresented in one or 
more years. Congress neither deemed 
conclusive the election of minority can­
didates, nor directed that such vic­
tories be ignored . 7 0 The language and 
legislative history of section 2 recognize 
the potential significance of the election

70 As in other areas of civil rights, the 
results test in section 2 no more requires 
proof that no blacks ever win elections 
than the effect rule in Title VII requires 
that no blacks can ever pass a particular 
non-job related test. See Connecticut 
v. Teal, 457 U.S. 440 (1982).



64

of minority candidates, but require that 
the significance of any such elections be 
carefully assessed from a local vantage in 
order to determine what light, if any, 
those events shed, in the context of all 
relevant circumstances, on the section 2 

claim at issue.

II. THE DISTRICT COURT REQUIRED NEITHER
PROPORTIONAL REPRESENTATION NOR
GUARANTEED MINORITY POLITICAL SUCCESS

Appellants flatly assert that the 
district court in this case interpreted 
section 2 to "creat[e] an affirmative 
entitlement to proportional representa­
tion” . A. Br. 19. The district court 
opinion, however, simply contains no such 
construction of section 2. On the 
contrary, the lower court expressly held 
that section 2 did not require propor­
tional representation, emphasizing that
"the fact that blacks have not been



65

elected under a challenged districting 
plan in numbers proportional to their 
percentage of the population" "does not 
alone establish that vote dilution has 
resulted." JA 17.

Appellants suggest in the alternative 
that the district court "apparently" 
equated the equal opportunity required by 
section 2 with "guaranteed electoral 
success," A. Br. 14, 15, 35. Again, how­
ever, no such rule of law is espoused in 
any portion of the opinion below. The 
ultimate factual findings of the district 
court are not cast in terms of the lack of 
any such guarantee; rather the trial court 
concluded that section 2 had been violated 
because minority voters had "less opportu­
nity than do other members of the electo­
rate to participate in the political 
process and to elect representatives of 
their choice." JA 54.



66

The Solicitor argues that, because 
the facts as he personally views them did 
not violate section 2 , the three trial 
judges must have been applying an incor­
rect, albeit unspoken, interpretation of 
section 2. Thus the Solicitor asserts that 
since the trial court

could not reasonably have found a 
violation under the proper ... 
standard, [it] rather must implicitly 
have sought to guarantee continued 
minority electoral success. (U.S. Br. 
II, 7) (Emphasis added) . 7 1

But the district court, whether or not the 
Solicitor thinks it reasonable, found as a 
matter of fact that blacks do not enjoy 
the same opportunity as whites to partici­
pate in the political process. The

7 1  See also U.S. Br. I, 12 (in light of 
Solicitor's view of the facts, misinter­
pretation of the law is "the only expla­
nation for the district court's conclu­
sion", 18 n. 1 9 (district court " in effect" 
interpreted section 2 as imposing a 
"proportional representation plus" stan­
dard) .



67

Solicitor's argument is simply an attempt 
to transform a disagreement about the 
relevant facts, a disagreement in which 
the trial court's findings would be 
subject to Rule 52, into an issue of law. 
If the trial court's factual findings are 
clearly erroneous they can, of course, be 
reversed on appeal. But if both those 
factual findings and the legal principles 
announced by the district court are sound, 
the resulting judgment cannot be over­
turned by hypothesizing that the three 
trial judges here were purposefully 
applying legal principles different than 
those actually set forth in their opinion.

Although the trial court expressly 
construed section 2 not to require 
proportional representation, appellants 
suggest, A. Br. 19-20, that the lower 
court implicitly announced that it was

P



68

applying just such a requirement in the 
following passage:

The essence of racial vote dilution 
in the White v. Regester sense is 
this: that primarily because of the 
interaction of substantial and 
persistent racial polarization in 
voting patterns (racial bloc voting) 
with a challenged electoral mechan­
ism, a racial minority with dis­
tinctive group interests that are 
capable of aid or amelioration by 
government is effectively denied the 
political power to further those 
interests that numbers alone would 
presumptively, see United Jewish 
Organizations v. Carey, 403 U.S. 
TTZ~ 16 6 n . 24 ( 1 977), give it in a 
voting constituency not racially 
polarized in its voting behavior.
See Nevett v. Sides, 571 F .2d 209, 
T H  & n. 16 (5th' ClrT 1978). JA 16.

This passage, which is immediately 
preceded by discussion of the totality of 
circumstances test, and followed by an 
exposition of the statutory disclaimer 
prohibiting proportional representation, 
asserts only that, in the absence of vote 
dilution, black voters would possess the



69

ability to influence the policies of their 
elected officials, not, as appellants 
claim, that black voters would be certain 
to elect black officials "in proportion to 
their presence in the population . A. Br. 
20. The portion of Nevett v. Sides 
referred to by the district court dis­
cusses the extent to which black voters, 
in the absence of polarized voting, would 
have the political power to assure that
their interests were protected by white

. , 72officials.
Appellees in this case did not seek,

73and the trial court did not require, any

72 Nevett v. Sides, 571 F .2d at 223 n.16.
73 Indeed appellants proposed the plan now in 

effect for all the districts at issue, 
which was adopted by the court without 
modification. See supra, at 5-6.



70

guarantee of proportional representation,
and proportional representation did not

74result from the decision below.

III. THE DISTRICT COURT APPLIED THE 
CORRECT STANDARDS IN EVALUATING 
THE EVIDENCE OF POLARIZED VOTING

In determining whether a method of 
election violates section 2 , a trial court 
must evaluate "the extent to which voting 
in the elections of the state or political 
subdivision is racially polarized." S.

7 5Rep. at 29. The court below evaluated the

7 4 Prior to this litigation only 4 of the 170 
members of the North Carolina legislature 
were black; today there are still only 16 
black members, less than 1 0 %, a far 
smaller proportion than the 22.4% of the 
population who are black. Whites, who are 
75.8% of the state population, still hold 
more than 90% of the seats in the legis­
lature .

7 5 Racial bloc voting is significant in a 
section 2 case because, in the context of 
an electoral structure wherein the number 
of votes needed for election exceeds the 
number of black voters, it substantially 
diminishes the opportunity for black 
voters to elect candidates of their



71

lay and expert testimony on this question 
and found "that within all the challenged 
districts racially polarized voting exists 
in a persistent and severe degree." JA 
40. Appellants argue that this finding is 
erroneous as a matter of law.

Appellants, A. Br. 36, and the 
Solicitor, U.S. B r . II 39, contend that 
the court erroneously defined racially 
polarized voting as occurring "whenever 
less than a majority of white voters vote 
for the black candidate." But the 
district court, guided by the Senate 
report and in accordance with the experts 
for appellants and appellees, in fact 
defined racially polarized voting as the

choice, and it allows white candidates to 
ignore the interests of the black com­
munity and still get elected. See United 
States v. Carolene Products Co., 304 U.S. 
144, 1 52-3 n. 4 (1 938); Major v. Treen, 574 
F. Supp. 325, 339 (E. D. La. 1983) (three 
judge court).



72

extent to which black and white voters
vote differently from each other in

7 6relation to the race of the candidates.
The court focused not only on the 

existence but the degree of polarized 
voting. As articulated by the court, the 
relevant question is whether a substantial 
enough number of white citizens do not 
vote for black candidates, so that the 
polarization operates, under the election 
method in question, to diminish the 
opportunity of black citizens to elect 
candidates of their choice. JA 16-17, 43.

76 Senate Report, 29; JA 40, n.29; JA 123.
T. 1404. See also City of Rome v. United 
States, 446 U.S. 1 56, 183-187 (1 960) ,
affirming 472 F. Supp. 221 , 226 (D.D.C. 
1979) ("Racial bloc voting is a situation 
where, when candidates of different races 
are running for the same office, the 
voters will by and large vote for the 
candidate of their own race.)" Accord, 128 
Cong. Rec. S7120 (Sen. Dole)(daily ed. 
June 18, 1982).



73

This inquiry is plainly consistent with 
the statutory language of Section 2.

A. Summary of the District Court's 
F i nd i ngs

The District Court examined a number 
of factors in determining that voting was 
severely racially polarized.

1. The court examined the percent- 
7 7age of white and black voters who voted 

for the black candidates in each of 53 
primaries and general elections in which a 
black candidate had run during the three 
election years prior to the trial. JA 
43-48. The court found that, on the 
average, 81.7% of white voters did not

77 Appellants conceded that the method used 
to assess the extent of racially polarized 
voting is standard in the literature and 
that the statistical analysis performed by 
appellees' expert was done accurately, JA 
131-2, 281.



74

vote for any black candidate in the 
primary elections, and "approximately two 
thirds of white voters did not vote for 
black candidates in general elections even 
after the candidate had won the Democratic 
primary and the only choice was to vote 
for a Republican or no one." JA 42.

2. The district court determined how 
often the candidates of choice of white 
voters and of black voters were different. 
Although, in primaries, black voters 
ranked black candidates first or first and 
second, white voters almost always ranked 
them last or next to the last. JA Ex. 
Vol. I Ex. 5-7. In general elections, 
white voters almost always ranked black 
candidates either last or next to last in 
the multi—ca nd idate field except in 
heavily Democratic areas; in those latter, 
"white voters consistently ranked black



75

candidates last among Democrats if not 
last or next to last among all candi­
dates." JA 42. If white voters as a 
group are selecting different candidates 
than black voters as a group, assuming 
black voters are in a minority, the 
polarization diminishes the chances that 
the black voters' candidate will be 
elected. JA 1 32-1 36. In fact, the court 
found that in all but two of the election 
contests, the black candidates who were 
the choice of black voters were ranked
last or near last such that they lost

7 8among white voters. JA 42, n.31.
3. The court considered statistical 

analyses of the degree of correlation 
between the race of voters and the race of 
candidates whom they supported. The race 
of the voter and the race of a candidate

78 In describing this analysis the court 
used the term "substantively signifi­
cant". JA 41-2.



76

7 9were very closely correlated. The court
found that the probability of such
correlat ions appearing by chance was less
than 1 in 1 00,000. JA 41 and n. 30.
Appellants' expert agreed with this
determination. JA 281.
B. The Extent of Racial Polarization was 

Significant, Even Where Some Blacks 
Won

In addition to their misc'naracteriza- 
tion of the court's analysis, appellants 
propose a novel standard for assessing the 
degree of polarized voting. Appellants 
contend that racial polarization of 
voting has no legal significance unless it

79 Expert witnesses for appellants and 
appellees agreed that the correlation 
coefficient is the standard measure of 
whether black and white voters vote 
differently from each other. JA 129, 
281. Correlations above an absolute value 
of .5 are relatively rare. The corre­
lations in this case had absolute values 
between .7 and .98, with most above .9. JA 
41, n.30.



77

8 0always causes blacks to lose. A. Br. 35, 
40. Under appellants' standard, a theory 
not adopted in any vote dilution case they 
cite, any minority electoral success 
precludes a finding of racially polarized 
voting and bars a section 2 violation, a 
result clearly contrary to the intent of 
Congress. See S. Rep. at 29, n.115 and 
pp. 50-64, supra. Appellees know of no

80 The Solicitor General does not adopt 
appellants' proposed standard, but 
articulates the inquiry as whether "the 
impact of racial bloc voting in combina­
tion with the challenged procedure — here, 
multimember districts —  deprives black 
voters of equal access to the electoral 
process..." U.S. Br. 31-32. Assuming that 
the Solicitor General includes with "equal 
access to the electoral process", as the 
statutory language of section 2 does, an 
equal opportunity to elect candidates of 
black voters' choice, the Solicitor 
General does not disagree with the 
district court's conception of the 
question. The Solicitor General simply 
disagrees with the district court's 
finding of fact as to its answer.



78

court which has adopted appellants' 
proposed standard in a section 2 case.

Other courts have found polarized 
voting sufficient to support a violation 
of section 2 , despite a finding of some 
electoral success. In McMi1lan v .
Escambia Countyf748 F.2d 1037, 1043, 1045 
(11th Cir. 1984) (McMillan II), the court 
found racially polarized voting and a 
violation of section 2 despite some black 
electoral success, based on a finding that 
"a consistent majority of the whites who
vote will consistently vote for the
black 's opponent." See also Major v.
Treen, 574 F. Supp. at 339.

In fact, in 65% of the election 
contests analyzed here in which the black 
candidate received substantial black 
support, the black candidate did lose 
because of racial polarization in voting.



79

That is, he lost, even though he was the 
top choice of black voters, because of the 
paucity of support among white voters. 
Appellants' statement that "two thirds of 
all black candidates have been success­
ful", A. Br. 45, is misleading since it 
only counts black candidates who made it 
to the general elections and ignores the 
many black candidates who lost in the 
Democratic primaries. Furthermore, of 
white Democrats who made it to the general 
election, 100% were successful in 1982, 
and about 90% were successful in earlier 
election years. JA Ex. Vol. I Ex. 13.

Appellants rely on Rogers v. Lodge, 
458 U.S. 613 (1982) and two post-Mobile 
lower court cases, all involving claims of 
discriminatory intent under the Fourteenth 
Amendment. We do not read the cited cases 
to hold that racial polarization is 
legally significant only if it uniformly



80

causes electoral defeat . 81 But this Court 
need not consider, in the context of this 
case, whether appellants' bold assertion 
is correct. Assuming arguendo that proof 
of absolute exclusion may be necessary to 
raise an inference of discriminatory 
intent, it is not necessary to show that 
black citizens have "less opportunity" 
than do whites to elect candidates of 
their choice in violation of the results 
standard of section 2 .

The lower court in Rogers v. Lodge found 
racial bloc voting based upon an analysis 
that included an election in which a black 
had won a city council seat. Lodge v. 
Buxton, Civ. No. 176-55 (S.D. Ga. Oct. 
26,1978) slip. op. at 7-8. In NAACP v . 
Gadsden County School Board, 691 F.id 978 
( 1 1 th Cir. 1982) , the finding of uncon­
stitutional vote dilution was upheld 
despite the election of one black can­
didate to the school board, a level of 
electoral success similar to that present 
here in House District 21 and House 
District 36.



81

C . Appellees Were not Required to Prove 
that White Voters' Failure to Vote 
Tor Black Candidates was Racially- 
Motivated!

Appellants contend that proof that
white voters rarely or never vote for
minority candidates does not establish the
presence of polarized voting. Rather, they
urge, a plaintiff must adduce probative
evidence of the motives of the individual
white voters at issue, and must establish
that those voters cast their ballots with
a conscious intention to discriminate
against minority candidates because of the

8 2race of those candidates. A. Br. 42-44. 82

8 2  Appellants argue in particular that proof 
of motives of the electorate must take the 
form of a multivariate analysis. (App.Br. 
43-44) . No such multivariate analysis was 
presented in White v. Regester or any of 
the other dilution cases to which Congress 
referred in adopting section 2. Although 
appellants now urge that evidence of a 
multivariate analysis is essential as a 
matter of law, no such contention was ever 
made to the district court.



82

This proposed definition of polarized 
voting would incorporate into a dilution 
claim precisely the intent requirement 
which Congress overwhelmingly voted to 
remove from section 2. The legislative 
history of section 2 is replete with 
unqualified statements that no proof of 
discriminatory intent would be required in 
a section 2 case, and Congress' reasons 83
for objecting to the intent requirement in
Bolden are equally applicable to the
intent requirement now proposed by

8 3appellants.

83 The reasons set out in the Senate Report 
for rejecting any intent requirement were 
reiterated by individual members of 
Congress. Senate Report 193 (additional 
views of Sen. Dole) ; 128 Cong. Rec. (daily 
ed. June 9, 1982) S6560-61 (Sen. Kennedy); 
128 Cong. Rec. (daily ed. June 15, 1982) 
S6779 (Sen. Specter); 128 Cong. Rec. 
(daily ed. June 17, 1982) S6931 (Sen.
DeConcini); S6943 (Sen. Mathias); S6959 
(Sen. Mathias); 128 Cong. Rec. (daily ed. 
June 18, 1982) S71 09 (Sen. Tsongas) ; S71 1 2 
(Sen. Riegle); S7138 (Sen. Robert Byrd).



83

Congress opposed any intent require­
ment, first, because it believed that the 
very litigation of such issues would 
inevitably stir up racial animosities, 
insisting that inquiries into racial 
motives "can only be divisive." Senate 
Report 36. Congress contemplated that 
under the section 2 results test the 
courts would not be required to "brand 
individuals as racist." Id. The divisive 
effect of litigation would be infinitely 
greater if a plaintiff were required to 
prove and a federal court were to hold 
that the entire white citizenry of a 
community had acted with racial motives.

Second, Congress rejected the intent 
test because it created "an inordinately 
difficult burden for plaintiffs in most 
cases." (S.Rep. 36) The Senate Committee 
expressed particular doubts about whether



84

it might be legally impossible to inquire
into the motives of individual voters,
id., and referred to a then recent Fifth
Circuit decision holding that the First
Amendment forbade any judicial inquiry
into why a specific voter had voted in a
particular way. Congress thought it
unreasonable to require plaintiffs to
establish the motives of local officials;
establishing the motives of thousands of
white voters, none of whom keep any
records of why they voted, and all of whom
are constitutionally immune from any
inquiry into their actions or motivations

8 5in casting their ballots, would clearly

84 id. 36 n.135, citing Kirksey v. City of 
Jackson, 699 F.2d 317 (5th Cir. 1982), 
clarify!ng Kirksey v. City of Jackson, 663 
F72a“ 5T9 ( 5th" Cir". 1981).

85 see also Anderson v. Mills, 664 F . 2d 600, 
6 Q6-9 ( 6tTH Cir. 1 98 1 ) ; South Alameda 
Spanish Speaking Org . v .City o£~*Union 
C l ty,~ "424 -F.TcT ~2~9~T , 295 (9th Cir. 1 3 7 0 ) ; 
United States v. Executive Committee of 
Democratic Party of Greene County, Ala.,



85

8 6be an infinitely more difficult task.
Counsel for appellants contend that

the plaintiffs in a section 2 action
should be required to establish the
motives of white voters by means of
statistics, but at trial appellants'
statistician conceded it would be impos-

8 7sible to do so. * 86 87

254 F. Supp. 543, 546 (S.D. Ala. 1966).
86 The courts have consistently entered 

findings of racially polarized voting 
without imposing the additional burdens 
now urged by appellants. See Mississippi 
Republican Executive Committee v. Brooks,

U7S~: 105 S.Ct. 41 6 (1 9 8 4)
(summary affirmance of district court 
using correlation test). See also Rogers 
v. Lodge, supra, 458 U.S. at 623; Marengo 
County, supra, 731 F .2d at 1 567 n. 34; 
Perkins v. City of West Helena, 675 F.2d 
201 , 213 (8th Cir. 1982) , aTFd mem. 459
U.S. 801 (1982); City of Port Arthur v .
United States, 517 ~F"!i Supp. 987, 1007 
n. 1 36 ("D.D.'C. 1981), aff'd 459 U.S. 159 
(1982).

87 Appellants' expert testified that many of 
the variables which he considers im­
portant, such as a candidate's skills or 
positions on the issues, are not quanti­
fiable. He did not suggest how such an 
analysis could be performed, and he



86

Third, Congress regarded the presence 
or absence of a discriminatory motive as 
largely irrelevant to the problem with 
which section 2 was concerned. Senate 
Report 36. The motives of white voters 

equally beside the point. The central 
issue in a dilution case is whether, not 
why, minority voters lack an equal 
opportunity to elect candidates of their 
choice.

In appellant's view, polarized voting 
occurs only when whites vote against black 
candidates because of their race, but not 
when whites consistently vote against 
black candidates because those candidates

conceded he had never performed one. T. 
1420, 1460, JA 283. Even McCleskey v . 
Zant, 580 F.Supp. 338 (N.D.Ga“. 19841, 
aTF7 d , 753 F .2d 877 ( 5th Cir. 1985),
cert, pending, No. 84-____ , on which
appellants rely, holds that such regres­
sion analyses are incapable of demon­
strating racial intent where, as here, 
"qualitative" nonquantifiable differences 
are involved. 580 F. Supp. at 372.



87

are not able to purchase expensive media
campaigns or obtain endorsements from
local newspapers. The reasons appellants
present as a legitimate basis for whites
not voting for black candidates are almost
invariably race related. In the instant
case, for example, the inability of black
candidates to raise large campaign
contributions had its roots in the
discrimination that has impoverished most
of the black community. An election system
in which black candidates cannot win
because their supporters are poor, or
because local newspapers only endorse
whites, or because of white hostility to
any candidate favoring enforcement of
civil rights laws, is not a system in
which blacks enjoy an equal opportunity to
participate in the political process or

8 8elect candidates of their choice. 88

88 Moreover, to require a district court to



88

D . The District Court's Finding of
t~He Extent of Racially PolarTzed 
Voting is not Clearly Erroneous.

Based on the analysis summarized in 
Part III A, supra, the trial judges found 
"that in each of the challenged districts 
racial polarization in voting exists to a 
substantial or severe degree, and that in 
each district it presently operates to 
minimize the voting strength of black 
voters." JA 48.

The Solicitor contends that the dis­
trict court ignored possible variations in 
the extent of polarized voting, asserting

determine which ostensible reasons are 
legitimate and which are race related 
would be exactly the type of subjective, 
motivational analysis Congress sought to 
avoid. If such an analysis were relevant, 
even the Solicitor General agrees that it 
is not necessary in order to establish a 
prima facie case, but it is the defen­
dants' burden to prove it on rebuttal. 
U.S. Br. 30, n.57. Accord, Jones v. 
Lubbock, 730 F.2d 233, 236 (5th Cir. 
1 984) (Higginbotham concurring). No such 
evidence was offered here.



89

the district court adopted a de­
finition of racial bloc voting 
under which racial polarization 
is "substantively significant" 
or "severe" whenever "the 
results of the individual 
election would have been 
different depending upon whether 
it had been held among only the 
white voters or only the black 
voters in the election. U.S. Br. 
I, 29.

The Solicitor argu es that unde:r th is
def inition elections in which only 49% of
whit es voted for a black would be held to
be "severely racial iy polarized" U .S.
Br. 29. (Emphasis i n original) Th i s
argument rests on a mis represe nta t ion of
the language of the opunion below. The
quot ed reference to d ifferences i n the
preferences of black and white voters 
appears on page JA 41 of the opinion, 
where the district court correctly notes 
the presence of such differences in this 
case. The term "severe" does not appear in 
that passage at all, but is used on the



next page in a separate paragraph to 
describe elections in which 81.7% of white 
voters declined to vote for any black 
candidate. JA 42. The opinion of the 
district court clearly distinguishes the 
presence of any differences between black 
and white voters from a case in which 
whites overwhelmingly opposed the candi­
date preferred by black voters, and 
equally clearly characterizes only the 
latter as "severe."

The primary evidentiary issue 
regarding polarized voting that must be 
resolved in a section 2 dilution case is 
whether the degree of polarization was 
sufficiently severe as to materially
impair the ability of minority voters to

8 9elect candidates of their choice. In 89

89 While appellants do not challenge the 
method appellees' expert used to analyze 
the election returns in general, JA 131-2, 
281, appellants claim that appellees' 
regression analysis is flawed by what

- 90 -



91

concluding that such impairment had been 
shown, the court relied on the extensive 
fact findings noted above, including the 
fact on average 81.7% of white voters do 
not vote for any black candidate in a 
primary election. The polarization was 
most severe in House District 8, where an 
average of 92.7% of white voters do not 
vote for any black candidate in a primary, 
JA 47-48; the district court correctly

they labeled the "ecological fallacy." 
They assert that instead of using turnout 
figures, appellees' expert used voter 
registration figures. A. Br. 41. Not 
only was this argument made to the 
district court and rejected, JA 40, n.29, 
but also it is not accurate. Appellees' 
expert, Dr. Grofman, did have turnout 
figures for each precinct, and he used a 
regression analysis to calculate the 
turnout figures by race. Px 12 at p p . 
3-8. In fact, appellants' expert admitted 
that he did not know what method Dr. 
Grofman used to calculate turnout, JA 
279-80, and he, therefore, could not 
express an opinion about the accuracy of 
the method.



92

noted that in that district it was 
mathematically impossible for a black 
candidate ever to be elected. JA 48.

In the other districts, the degree of
polarization was sufficiently severe to be
a substantial impediment, although not
necessarily an absolute bar, to the
election of minority candidates. The
average portion of white voters willing to
support a black candidate in a primary was
18%. The proportion of voters that was
white ranged from 70.5% to 84.9%. JA 21.
In each of the disputed districts the
number of white voters who in primaries do
not support the black candidate favored by
the black community constituted a majority

9 0of the entire electorate. Under those 90

90 Given the small percentage of black 
voters, the failure of this number of 
whites to vote for black candidates 
presented a substantial barrier. The 
lower the black population of the dis­
trict, the more white voters it takes 
voting for the black candidate to make it



93

circumstances, the election of candidates 
preferred by black voters, while not 
mathematically impossible, is obviously 
extremely difficult.

Appellants attack the lower court's 
finding of substantial polarized voting by 
selectively citing the record. Of the 53 
elections discussed by the trial court,

possible for him to win. Moreover, no 
evidence was presented to show that the 
extent of racial polarization was declin­
ing. JA 137, 140.
Here, while there are a large number of 
black citizens , because they are submerged 
into such large multimember districts, 
they are a small percentage of the total 
electorate. For example, in House 
District 36 (Mecklenburg County), there 
are 107,006 black residents, Px 4(b), JA 
Ex. Vol. II, more than enough for two 
whole House Districts, id.*' but because 
they are submerged into an eight member 
district, they are only 26.5% of the 
population. Because the percentage of the 
registered voters in each of the districts 
which is black is relatively low, ranging 
from 15% to 29%, it takes little polar­
ization to impede materially the ability 
of the black community to elect candidates 
of its choice.



94

appellants refer only to 8. A. Br. 36-38. 
In most instances, appellants emphasize 
the election at which white support for a 
black candidate was the highest of any 
election in that district.91 The highest 
proportion of white support for minority 
candidates cited by appellants were in the 
1982 Durham County general elections and 
the 1 982 Mecklenburg County primary. (A. 
Br. 36-37), but there were no Republican 
candidates in the 1982 general election in 
Durham County, and in the 1982 Mecklenburg 
County primary there were only seven white 
candidates for eight positions in the 
primary. JA 46, 44. Thus the white votes 
of 47% and 50% in those two races repre­
sent the number of whites willing to vote 
for an unopposed black instead of not 
voting at all, rather than the proportion

91 This is true of examples (a) (b) (h) (i) and 
(j) in Appellants' Brief. See JA 152.



95

of whites willing to support in a con­
tested election a minority candidate 
favored by the minority community.

IV. THE DISTRICT COURT FINDING OF UNEQUAL 
ELECTORAL OPPORTUNITY WAS NOT CLEARLY 
ERRONEOUS

A. The Clearly Erroneous Rule Applies

Appellants contend that, even if the
district court was applying the correct
legal standard, the court's subsidiary
factual findings, as well as its ultimate
finding that minority voters do not enjoy
an equal opportunity to elect candidates
of their choice in the disputed districts,
were mistaken. Appellants correctly
describe these contentions as presenting

9 2a "factual question." The lower courts

A. Br. 25; see also id. at 35 ("no matter 
how one weights and weighs the evidence 
presented, it does not add up to a denial 
of equal access"), 26 (disputed trial 
court findings made "in spite of the 
facts"), 29 ("[n]othing in the record ... 
supports" a disputed finding), 30 n.12



96

have consistently held that a finding
under section 2 of unequal political
opportunity is a factual finding subject

, 93to the Rule 52 "clearly erroneous rule.
The courts of appeal considering constitu­
tional vote dilution claims prior to
Bolden also applied the clearly erroneous

94rule to findings of the trial court.

(testimony relied on by the trial court 
"was simply not credible" ) , 30 (plaintiffs 
"failed to prove" a subsidiary fact).
Coll*ins v. City of Norfolk, 768 F.2d 572, 
T73 (4th Cir., July '2.1, 1 985) (slip
opinion, p. 4); McCarty v. Henson, 749 
F. 2d 1 134, 1 135 ( 5th Cir . 1984) ; Jones v . 
City of Lubbock, 727 F.2d 364, 371, T80 
(5th Cir. 198'4) ; Velasquez v. City of
Abilene, 725 F.2d 1017,'Tff?1 (5th Cir. 
1 984) ; United States v. Marengo County 
C o m * 1 n , 7 T T T 7 I 3  1 546, ‘1 552 (1 1th Cir. 
1984); Buchanan v. City of Jackson, 708 
F . 2d 1 066, 1070 (6th Cir." 1983)'.
Parnell v. Rapidas Parish School Bd., 563 
F.2d 1 80, 184-5 (5th Cfri 1977) ; Hendrix 
v. Joseph, 559 F .2d 1265, 1268 (5th Cir.
1 9 77); McGillv. Gadsden County Comission, 
53 5 F.2d 111, 280 (5thcir. 1 976 ); Gilbert 
v. Sterrett, 508 F.2d 1 389., 1 393 ( 5th 
Cir. 197 5); Zimmer v. McKeithen, 485 F.2d 
at 1302 n.8 (majority opinion), 1309-10 
(Coleman, J., dissenting), 1314 (Clark,



97

Until recently the United States also
maintained, that absent any failure to
apprehend and apply the correct legal
standards, a finding of unequal electoral
opportunity under section 2 was a
factual finding subject to Rule 52(a), 

95F.R. Civ. P.
The Solicitor General now asserts, 

however, that Rule 52 does not apply to a 
finding of vote dilution under section 2. 
The Solicitor acknowledges that the 
determination of a section 2 claim 
"requires a careful analysis of the 
challenged electoral process, as informed 
by its actual operation." U.S. B r . II, 
18. But, he urges that the ultimate 
finding of the trial court based on that * 95

J., dissenting).
95 See Brief for the United States, United 

Spates v. Dallas County Commission, 11tn 
Cir," (No-. 82-7362) (dated March 27, 1983)
p. 26 .



98

analysis may be reversed whenever an 
appellate court views the facts dif­
ferently.

The arguments advanced by the 
Solicitor do not justify any such depar­
ture from the principles of Anderson v. 
City of Bessemer City, 84 L.Ed.2d 518 
(1985). A number of the cases relied on
by the Solicitor General involved simple

9 6matters of statutory construction, or the
meaning of a constitutional right where

97the facts were not in dispute.
I n Bose Corp. v. Consumers Union, 80 

L.Ed.2d 502 (1984) this Court declined to 
apply Rule 52, but it did so only because 
the Constitution requires appellate courts 
in First Amendment cases to undertake "an

96 Metropolitan Edison Co. v. PANE, 460 U.S. 
786 ( 1 983) ; Harper &. Row”, Publisher v. 
Nation, 8 5 L.Ed.2d 588, 6(16-02 ( 1985).

97 Strickland v. Washington, 80 L.Ed.2d 674rrmr



99

independent examination of the whole
record." 80 L.Ed.2d at 515-26. The
Solicitor suggests that the special
standard of appellate review in Bose
should be extended to any statutory claim
in which "the stakes ... are too great to
entrust them finally to the judgment of
the trier of fact." U.S. Br. II 19. But
this Court has already applied Rule 52 to
Fourteenth Amendment claims of purposeful

9 8discrimination in voting, to claims of
discriminatory effect under section 5 of

99the Voting Rights Act, and to claims 
arising under Title VII of the 1964 Civil 
Rights Act.* 99 100 The "stakes" in each of these 
areas of the law are surely as great as

Hunter v. Underwood, 85 L.Ed.2d 222, 229 
(1965); Rogers v. Lodge, supra, at 622-23.

99 city of Rome v. United States, 446 U.S. 
1 56, 1 83 T T 5 W T

100 Anderson v. City of Bessemer City, supra;



1 00

under Section 2. Cf. Alyeska Pipeline 
Service v. Wilderness Society, 421 U .S . 
240, 263-64 (1975). As this Court emph­
asized in White v. Regester, a district 
court called upon to resolve a vote 
dilution claim occupies "its own special 
vantage point" from which to make an 
"intensely local appraisal" of the 
existence of racial vote dilution. 412

The application of Rule 52 is particu­
larly appropriate in a case such as this 
where the appellants' brief is replete 
with controverted or clearly inaccurate 
factual assertions. For example, appel­
lants state without citation, "In Halifax, 
several blacks have been elected to the 
County Commission and the City Council of 
Roanoke Rapids." A. B r . 11. This is
false. No black had ever been elected to 
either body. JA 233. Appellants state, 
"The Chair of the Mecklenburg County 
Democratic Executive Committee at the time 
of trial and his immediate predecessor are 
also black. Stip. 126 " A. B r . 8.
Stipulation 126 actually says, "The 
immediate Past Chairman of the Mecklenberg 
County Democratic Executive Committee , for 
the term from 1981 through May 1983, was 
Robert Davis, who is black. Davis is the 
only black person ever to hold that 
position." JA 105. Appellants state that 
"If Forsyth County were divided into



101

U.s. at 769.
From "its own special vantage point" 

the court here made detailed and extensive 
fact findings on virtually all the factors 
the Senate Report thought probative of a 
section 2 violation. The findings of the 
district court involved six distinct 
multi-member districts, the circumstances 
of which were of course not precisely 
identical. Appellants neither contend that 
these differences are of any importance or 
suggest that the trial court's ultimate 
finding of unequal electoral opportunity 
under the totality of circumstances is any

single member House districts, one 
district with a population over 65% black 
could be formed. Stip. 129." App. Br. 9. 
Stipulation 129 in fact says that two 
majority black districts could be formed. 
JA 105. The omission is particularly 
deceptive since the remedy proposed by 
appellants, which was accepted unchanged 
by the district court, contained two 
districts in Forsyth County which are 
majority black in voter registration.



102

less justifiable in any one district than 
in the others. Rather, appellants advance 
objections which they contend are equally 
applicable to all the districts at issue. 
Appellants attack the district court's 
ultimate finding by generally challenging 
each of the subsidiary findings on which 
it is based. A. Br. 25-34.

B. Evidence of Prior Voting 
Discrimination

The district court, after describing
the long North Carolina history of
official discrimination intended to
prevent blacks from registering to vote,
as well as some relatively recent efforts
to counteract the continuing effects of
that discrimination, concluded:

The present condition .... is 
that, on a state wide basis, 
black voter registration remains 
depressed relative to that of 
the white majority, in part at 
least because of the long period



103

of official state denial and 
chilling of black citizens' 
registration efforts. This 
statewide depression of black 
voter registration levels is 
generally replicated in the 
areas of the challenged dis­
tricts, and in each is traceable 
in part at least to the histori­
cal statewide pattern of offi­
cial discrimination here found 
to have existed. JA 27-28.

Such disparities in black and white 
registration, rooted in past and present 
discrimination, is one of the factors 
which Congress recognized puts minority 
votes at a comparative disadvantage in 
predominantly white multi-member dis­
tricts. Senate Report 28.

Appellants concede, as they must, 
that it was for decades the avowed policy 
of the state to prevent blacks from 
registering to vote. A. B r . 25. The 
district court noted, for example, that in 
1900 the state adopted a literacy test for 
the avowed purpose of disfranchising black



104

voters, and that that test remained in use 
at least until 1970. JA 25. Appellants 
argue, as they did at trial, that all 
effects of these admitted discriminatory 
registration practices were entirely 
eliminated because recent state efforts to 
eliminate those effects "have been so 
successful." A. Br. 27. The district 
court, however, concluded that recent 
registration efforts had not been suffi­
cient to remove "the disparity in regis­
tration which survives as a legacy of the 
long period of direct denial and chilling 
by the state of registration by black 
citizens" JA 27.

The district court's finding is amply 
supported by the record below. In every 
county involved in this litigation the 
white registration rate exceeds that of 
blacks, and in many of those counties the 
differential is far greater than the



105

10 2statewide disparity. Id_. at n.22. Even 
appellants' witnesses acknowledged that 
this disparity was unacceptably great. Px 
40; T. 575-77, 1357; JA 199. There was 
direct testimony that the history of 
mistreatment of blacks continued to deter 
blacks from seeking to register. JA 175, 
188-89, 211-12, 220-25, 229, 242-43.

Appellants contend that in the last 
few years the state board of elections 
has taken steps to register blacks who 
might have been rejected or deterred by 
past practices. A. Br. 26. But the state's 
involvement did not begin until 1981, and 
the record was replete with evidence that, 
long after the literacy test ceased to be

102 xn 1971, the year after use of the 
discriminatory literacy test ended, 60.6% 
of whites were registered, compared to 
44.4% of qualified blacks. As of 1982 
that registration gap had only been 
slightly narrowed, with 66.7% of whites 
and 52.7% of blacks registered. JA 26.



106

used, local white election officials at 
the county level pursued practices which 
severely limited the times and places of 
registration and thus perpetuated the 
effects of past discriminatory practices.103 
Under these circumstances the district 
court was clearly justified in finding 
that minority registration levels remained 
depressed because of past discriminatory 
practices. I

I03 In a number of instances registration was 
restricted to the county courthouse, 
locations that especially burdened the 
large numbers of blacks who did not own 
cars. JA 220-22, 229; JA Ex. Vol. I Ex. 
37-52. Local election officials severely 
limited the activities of voluntary or 
part-time registrars, only allowing them, 
for example, to register new voters 
outside his or her own precinct when the 
state board of elections required them to 
do so. T. 525, 553-55; JA 212, 222-24.



107

C. Evidence of Economic and Educational
Disadvantages

The district court concluded that 
minority voters were substantially impeded 
in their efforts to elect candidates of 
their choice by the continuing effects of 
the pervasive discrimination that af­
fected, and to a significant degree 
continues to affect, every aspect of their 
1ives. JA 28-31.

The court concluded that past
discrimination had led to a variety of

1 04social and economic disparities. Such 1

1 04 The mean income of black citizens was only 
64.9% that of white citizens. Approxim­
ately 30% of all blacks have incomes below 
the poverty level, compared to only 10% of 
whites; conversely, the proportion of 
whites earning over $20,000 a year is 
twice that of blacks. JA 30. Since 
significant desegregation did not occur in 
North Carolina until the early 1970's, 
most black adults attended schools that 
were both segregated and qualitatively 
inferior for all or most of their primary 
and secondary education. JA 29. See 
Gaston County v United States, 395 U.S.



social and economic disparities were cited 
by Congress as a major cause of unequal 
opportunity in multi—member districts. 
S. Rep. 29.* 105 Appellees adduced evidence 
documenting these disparities in each of

285, 292-96 (1969). Residential housing 
is rigidly segregated throughout the 
state, JA 29, and is almost total in each 
of the challenged districts. T. 268, 648, 
739; JA 176-7, 201-2, 219, 240, 263-4; JA 
Ex. Vol. II, Px 3a-8a.

105 congress deemed evidence of substantial 
social and economic disparities sufficient 
by itself to demonstrate that blacks would 
be at a significant disadvantage in a 
majority white district. The Senate 
Report directs the courts to presume, 
where those disparities are present, that 
"disproportionate education, employment, 
income level and living conditions arising 
from past discrimination tend to depress 
minority political participation..." Id. 
29 n.114. The propriety of such an
inference was an established part of the 
pre-Bolden case law expressly referred to 
by Congress, and is an established part of 
the post-amendment section 2 case law as 
well. United States v. Marengo County, 
731 F .2d at 1 5*>7-(56. See also McMillan 
v. Escambia County, 748 F.2d at 1044; 
United States v. Dallas County, 739 F.2d 
1529, 1537 (11th Cir. 1984).



109

the challenged districts* 1 ̂ a n d appellants do 
not dispute their existence.

Appellants attack the district 
court's finding that these undisputed 
disparities substantially impeded the 
ability of blacks to participate effec­
tively in the political process, asserting 
that "plaintiffs failed to prove that 
political participation on the part of 
blacks in North Carolina was ... in any 
way hindered." A. Br. 30. But appellees 
in fact introduced the evidence which

106 Mecklenburg County: T. 243, 436; JA Ex.
Vol. I Ex. 37; JA 77-89.
Durham County: T. 647-51, 686; JA Ex.
Vol. I Ex. 39; JA 77-89.
Forsyth County: T. 595-96, 611, 734; JA 
Ex. Vol. I Ex. 38; Hauser deposition 35, 
36, 38
Wake County: T. 130, 1 21 6-1 8 ; JA Ex . Vol.
I Ex. 40; JA 77-89.
House District 8: T. 701-03, 740-41,742- 
44; JA Ex. Vol. I Ex. 41-43; JA 77-89.



110

appellants assert was missing, documenting 
in detail precisely how the admitted 
disparities impeded the electoral effec­
tiveness of black voters. That evidence 
demonstrated that the cost of campaigns 
was substantially greater in large 
multi-member districts, and that compara­
tively poor black voters were less able 
than whites to provide the financial 
contributions necessary for a successful 
campaign.107 Minority voters were far less 
likely than whites to own or have access 
to a car, without which it was often 
difficult or impossible to reach polling

107 T. 130; JA 177-78, 180-1, 235-6; JA Sx. 
Vol. I Ex. 14-17; Hauser Deposition, 35. 
There was also more general testimony 
regarding the net impact of these dispari­
ties. JA 168, 213-14; 236-7. See David 
v. Garrison, 553 F.2d 923, 927, $29 (5th 
Cir. 19^7); Dove v. Moore, 539 F.2d 1152, 
1154 n.3 (8thCir. T976) ; Hendrick v.
Walder, 527 F.2d 44, 50 ( 7th C"ir".“ 197“5“) .



- 1 1 1  -

108 ...places or registration sites. Minority 
candidates, living in racially segregated 
neighborhoods and a racially segregated 
society, had far less opportunity than 
white candidates to gain exposure and
develop support among the majority of the

. , .. 109voters who were white.
Appellants urge that this evidence 

was rebutted by the fact that eight 
witnesses called by appellees were politi­
cally active blacks. A. Br. 29-30. But 
the issue in a section 2 dilution proceed­
ing is not whether any blacks are partici­
pants in any way in the political process, 108

108 T. 634, 686; JA 77; JA Ex. Vol. I Ex. 
37-52. The district court noted that 
25.1% of all black families, compared to 
7.3% of white families, have no private 
vehicle available for transportation. JA 
30.

189 T.782; JA 176-81, 213-14, 239.



112

but whether those who participate have an 
equal opportunity to elect candidates of 
their choice. The mere fact that eight or 
even more blacks simply participate in the 
electoral process does not, by itself, 
support any particular conclusion regard­
ing the existence of such equal opportu­
nity. In this case the instances cited 
by appellants as the best examples of the 
degree to which the political process is 
open to blacks actually tend to support 
the trial court's conclusions to the 
contrary. All the specific political 
organizations which appellants insist 
blacks are able to participate in are 
either civil rights or black organiza­
tions ; 1 ̂ only two of the individuals cited

1 1 0 The organizations refered to by appellants 
are the Nash County NAACP, the Mecklenburg 
County Black Caucus, the Second Congres­
sional District Black Caucus, the Durham 
Committee on the Affairs of Black People, 
the Wilson Committee on the Affairs of 
Black People, the Raleigh-Wake Citizens



by appellants held elective office, and 
both positions were chosen in majority 
black single member districts.* 111

D . Evidence of Racial Appeals by White 
Candidates

The district court concluded that the 
ability of minority voters to elect 
candidates of their choice was signifi­
cantly impaired by a statewide history of 
white candidates urging white voters to 
vote against black candidates or against 
white candidates supported by black 
voters :

[R]acial appeals in North 
Carolina political campaigns 
have for the past thirty years 
been widespread and persistent 
.... [T]he historic use of 
racial appeals in political 
campaigns in North Carolina 
persists to the present time and

Association, the Black Women's Political 
Caucus, and the Wake County Democratic 
Black Caucus. A. Br. 11-12, 30.

111 JA 108, stip. 143; JA 201, 237.



114

... its effect is presently to 
lessen to some degree the oppor­
tunity of black citizens to 
participate effectively in the 
political process and to elect 
candidates of their choice. 
JA 34.

Congress noted that the use of such racial 
appeals to white voters might make it 
particularly difficult for black candi­
dates to be elected from majority white 
districts. Senate Report 29. The noxious 
effects of such appeals are not limited to 
the particular election in which they are 
made; white voters, once persuaded to vote 
against a candidate because of his or her 
race or the race of his or her supporters,
may well vote in a similar manner in

1 1 2subsequent races. JA 34. 1

1 1 2 "The contents of these materials reveal an 
unmistakable intention by their dis­
seminators to exploit existing fears and 
prejudices and to create new fears and 
prejudices" toward black political 
participation. Id. According to a black 
witness at trial, one of the biggest 
obstacles to black candidates is "con-



Appe 11 ants object that, of the six 
elections referred to by the district 
court as involving racial appeals, only 
two occurred within the last 15 years. A. 
Br. 32a. But these particular elections 
were not cited by the trial court as the 
sole instances of racial appeals. Rather, 
those six elections were listed as the 
most blatant examples, JA 34, and the 
opinion added that " [njumerous other 
examples of ... racial appeals in a great 
number of local and statewide elections 
abound in the record." _Id. Among 
the additional instances of racial appeals 
documented in the record referred to by 
the district court are elections in 
1976,1 131 980,1 14and 1982.1 1 5 * 113 114

vincing the white voter that there is 
nothing to fear from having blacks serve 
in elective office." JA 179.

1 1 3  T. 330-38, 390-91; Px 44.
1 1 4  T. 356-358.

- 1 1 5 -



-  1 1 6 -

Appellants also urge that the
presence of racial appeals cannot be
proved merely by evidence as to the
content of the advertisements or litera­
ture used by white candidates; rather, 
they assert, some form of in depth public 
opinion poll must be conducted to demon­
strate what meaning white voters acknowl­
edge attaching to the racist materials 
used by white candidates. A. Br. 31-32. 
Public opinion polls are not, however, the 
ordinary method of establishing the 
meaning of disputed documents; indeed, if 
racial appeals have been effective, the 
white voters to whom those appeals were 
addressed are unlikely to discuss the 
matter with complete candor. Local 
federal judges, with personal knowledge of 115

1 1 5  T. 354, 357-69; JA 1 64-67; ; JA Ex. Vol . I 
Ex. 23-26, 36.



117

the English language and the culture in 
which they live, are entirely competent to 
comprehend the meaning of the spoken and 
written word in a wide variety of con­
texts, including political appeals. No 
public opinion poll is necessary to 
understand the significance of appeals 
such as "White People Wake Up", T. 245-46; 
JA Ex. Vol. I Ex. 21, or to realize why, 
although typically unwilling to provide 
free publicity to an opponent, a candidate 
would publicize a photograph of his 
opponent meeting with a black leader. T. 
356-58; JA 166-67; JA Ex. Vol. I Ex. 36. 
Indeed, these judges, all North Carolina 
natives conversant with local social and 
political realities, were able to deter­
mine that recent racial appeals, while at 
times "less gross and virulent," JA 33, 
"pick up on the same obvious themes": 
"black domination" over "moderate" white



118

candidates and the threat of "negro rule" 
or "black power" by blacks "bloc" voting.

E. Evidence of Polarized Voting

The sufficiency of the evidence 
supporting the district court’s finding of 
polarized voting is set out at pp. 88-95, 
supra .

F . The Majority Vote Requirement

The district court found that the 
majority runoff requirement impaired the 
ability of blacks to elect candidates of 
their choice from the disputed districts. 
JA 31-32. Although no black candidate 
seeking election to one of the at-large 116

116 for example, using a frequent pun for 
black, a candidate in 1 982 in Durham 
denounced his black opponent for "bus­
sing" [sic] his "block" vote to the polls. 
JA Ex. Vol. I Ex. 23-26.



119

seats has ever been forced into a runoff 
because of this rule, A. Br. 27, the issue 
at trial was not whether the runoff rule 
had led directly to the defeat of black 
legislative candidates, but whether that 
rule indirectly interfered with the 
ability of minority voters to elect 
candidates of their choice. The majority 
vote requirement has prevented black 
citizens from being elected to statewide, 
congressional, and local level positions,
T. 958-959, 967, JA 203-4; Dx 48, p. 20. 
The exclusion of blacks from these offices 
has operated indirectly to interfere with 
the ability of blacks to win legislative



120

elections. The court's findings have a
substantial basis in the record and
corroborate Congress' concern that in vote
dilution cases, majority vote requirements
are "typical factors" which "may enhance
the opportunity for discrimination against

118the minority group." Senate Report at 29. 117 118

117

117 Because of the effect of the runoff 
requirement in state and local offices, 
black voters were deprived of an oppor­
tunity to prepare for legislative elec­
tions by winning local office, of the 
possible assistance of minority of­
ficials in higher office,and of a pool of 
experienced minority campaign workers. T. 
142, 192, 960, 967; JA 175-77, 179-80.

118 This Court has also recognized the
discriminatory potential of runoff 
requirements. See, e.g., City of Port 
Arthur v. United States, 4 59 tf.S. 159
(1962); City of Rome v . United States, 
446 U.S. 156, 183-84 (1$80).



121

G. Evidence Regarding Electoral Success 
of Minority Candidates

Having identified a number of specific 
aspects of the challenged at—large systems 
which interfered with the ability of 
blacks to participate in the political 
process or elect candidates of their 
choice, the district court examined as 
well actual election outcomes to ascertain 
the net impact of those practices. The
court concluded:

[T] he success that has been 
achieved by black candidates to 
date is, standing alone, too 
minimal in total numbers and too 
recent in relation to the long 
history of complete denial of 
any elective opportunities to 
compel or even to arguably 
support an ultimate finding that 
a black candidate's race is no 
longer a significant adverse 
factor in the political pro­
cesses of the state -- either 
generally or specifically in the 
areas of the challenged dis­
tricts. JA 39-40.



122

Much of the argument advanced by both 
appellants and the Solicitor General is an 
attack on this factual finding.

As the facts stood in September, 
1981, when this action was filed, the 
correctness of this finding could not 
seriously have been disputed. Prior to 
1 972 no black candidate had ever been 
elected from any of the six disputed 
multi-member districts. From 1972-1980 no 
black representatives served in at least 
three of the districts; far from having, 
as the Solicitor suggests, a level of 
representation comparable to their 
proportion of the population, at any given 
point in time, prior to 1982 more than 
two-thirds of the black voters had no 
elected black representatives at all. In 
six of the disputed districts, with an 
average black population of well over 25%, 
a total of 30 legislators were elected at



large. Prior to 1982 no more than two or
three black candidates were successful in

i - • 1 19any election year.
Appellants rely solely on the results 

of the 1 982 elections in attacking the 
findings of the district court. The 
outcome of the 1982 elections, held some 
14 months after the filing of this action, 
were strikingly different than past 
elections. Although in 1980 only two 
districts had elected black candidates, 
four of the districts did so in 1982. For 
the first time in North Carolina history 
two blacks were elected simultaneously 
from the same multi-member legislative 
district, resulting in five black legis- 119

119 statewide, the number of black elected 
officials remains quite low, and has not 
increased significantly since 1975. JA 
35; JA Ex. Vol. I Ex. 22.

1 20 Although appellees state that seven blacks 
were elected in 1982, two were elected



124

Appellants contended at trial that 
the 1982 elections demonstrated that any 
discriminatory effect of the at-large 
systems had, at least since the filing of 
the complaint, disappeared. The district 
court expressly rejected that contention:

There are intimations from recent 
history, particularly from the 1982 
elections, that a more substantial 
breakthrough of success could be 
imminent — but there were enough 
obviously aberrational aspects 
present in the most recent elections 
to make that a matter of sheer 
speculation. JA 39.

The central issue regarding the 
significance of minority electoral success 
is whether the district courts' evaluation 
of the obviously unusual 1982 election 
results was clearly erroneous. The parties 
offered at trial conflicting evidence *

from majority black House districts in 
section 5 covered counties which although 
they include some counties in Senate 
District 2, are not in question here. 
Stip. 95, JA 94; JA 35.



125

regarding the significance of the 1982 
elections.121 The evidence suggesting that 
the 1982 elections were an aberration was 
manifestly sufficient to support the trial 
court's conclusion. First, as the district 
court noted, there was evidence that white 
political leaders, who had previously 
supported only white candidates, for the 
first time gave substantial assistance to 
black candidates and did so for the

1 2 1  In Forsyth County, for example, appel­
lants pointed to isolated instances of 
electoral success prior to 1982 which the 
court weighed in conjunction with evidence 
of electoral failures such as the defeat 
of all black Democratic candidates, 
including appointed incumbents, in 1978 
and 1 980 , years in which all white 
Democrats were successful. JA 37. In 
House District No. 8, which is 39% black 
in population, no black had ever been 
elected and from Mecklenburg, in the eight 
member House and four member Senate 
districts, only one black senator ( 1975— 
1979) and no black representatives had 
been elected this century prior to 1982. 
JA 36. Moreover, as in Forsyth, in general 
elections wherever there was a black 
Democrat running, black Democrats were the 
only Democrats to lose to Republicans. JA 
135.



purpose of influencing this litigation and
preventing the introduction of single

1 2 2member districts. Second, in Mecklenburg
County there were fewer white candidates
than there were seats, thus assuring that

1 23a black candidate would win the primary.
Third, conversely, in Forsyth County there
was such a surfeit of white candidates
that the splintering of the white vote

1 24gave blacks an unusual opportunity.

122 Hauser Deposition, 49; JA 259-60.
123 ja 4 4. Moreover, the black candidate who 

lost in the general election was the only 
Democratic candidate to lose. In House 
District 23, there were only 2 white 
candidates for 3 seats in the 1982 
primary, and the black candidate who won 
ran essentially unopposed in the general 
election, but still received only 43% of 
the white vote. JA 46, 142-3, 153.

124 ja 1 3 7— 8 . There were 9 white Democratic 
candidates, none of them incumbents, 
running for 5 seats. Appellees' expert 
testified that the likelihood of two 
blacks getting elected again in the 
multi-member district was "very close to 
zero." Id.



127

Fourth, in 1982, as occurs only once every
six years, there was no statewide race for
either President or United States Senate,
as a result of which white and Republican

125turnout was unusually low. Fifth, in one
county, black leaders had been able to
bring about the election of a black
legislator only by selecting a candidate
who had not been visibly outspoken about

1 26the interests of the black community. 
Finally, in a number of instances black 
candidates won solely because black voters 
in unprecedented numbers resorted to

1 2 5 T.142-144, 179; JA 137-39, 140. White 
turnout was 20% lower than in 1980.

126 Hauser Deposition 42-43;JA 205-6. The 
ability of some blacks to get elected does 
not mean they are the representatives of 
choice of black voters. T 691, 1291-4, 
1299; JA 214-15.



single shot voting, forfeiting their right
to participate in most of the legislative
elections in order to have some oppor-

1 27tunity of prevailing in a single race.
The success of black candidates in 

1 982 was viewed by the court as a con­
catenation of these various factors, each 
of which either was a freak occurrence

- 128 -

127 Experts for both appellants and appellees 
agreed that black voters had to single 
shot vote in order to elect black can­
didates in the districts at issue. T. 
797-8; JA 136, 148-49, 150, 278-79. Lay 
witnesses for both parties also agreed 
that the victories of black candidates 
were due in large measure to extensive 
single shot voting by blacks. T. 1099; JA 
228, 258-59.



1 29

over which 
in and of 
ity in the

appellees had no control, or
itself underscored the inequal-

1 2multi—member election system.

128 The likelihood, for example, of repeating 
successfully the 1982 election of blacks 
in the challenged Forsyth House District 
was "very close to zero." JA 137. More­
over, unlike white Democrats, not a single 
one of whom lost in the 1982 general elec­
tions, black Democrats in the other 
districts still enjoyed only haphazard 
success. Thus, the court was not pre­
sented with the fact situation of Whitcomb 
v. Chavis, 403 U.S. 124 (1971).

129 The necessity of single shot voting is a 
distinct handicap because it exacerbates 
the competitive disadvantage minority 
voters already suffer because of their 
numerical submergence. White voters get 
to influence the election of all candi­
dates in the multi-seat system, whereas 
blacks must relinquish any opportunity to 
influence the choice of other represen­
tatives in order to concentrate their 
votes on the minority candidate. As a 
result, white candidates can ignore the 
interests of the black community with 
impunity. See discussion supra at 
59-62.



130

H . Responsiveness

Appellees did not attempt to prove 
the unresponsiveness of individual elected 
officials. In a section 2 case unrespon­
siveness is not an essential part of 
plaintiff's case Senate Report 29

131n.116; Appellants' de minimus evidence

130 This Court held in Rogers v. Lodge, 458
U.S. 613, 625 n.9, that unresponsiveness 
is not an essential factor in establishing 
a claim of intentional vote dilution under 
the Fourteenth Amendment.

131 Because section 2 protects the right to 
participate in the process of government, 
"not simply access to the fruits of 
government", and because "the subjective­
ness of determining responsiveness" is at 
odds with the Congressional emphasis, a 
showing of unresponsiveness might have 
some probative value, but a showing of 
responsiveness has little. United States 
v. Marengo County, 731 F .2d at 1$72. See 
also Jones v. Lubbock County, 727 F.2d at 
381, 383 (upholding a violation of section 
2 despite a finding of responsiveness); 
McMillan v. Escambia County, 748 F.2d at 
1045-1046.



131

of responsiveness may be relevant rebuttal 
evidence, but only if appellees had 
attempted at trial to prove unresponsive­
ness. Id.

I. Tenuousness of the State Policy for 
Multimember Districts

112

The district court correctly recogn­
ized that while departure from established 
state policy may be probative of a

132 The only testimony cited to support their 
assertion that appellees' "witnesses 
conceded that their legislators were 
responsive", A. Br. 32, was the testimony 
of one witness who testified on cross- 
examination that of twelve Representatives 
and Senators from Mecklenburg County, two, 
the black representative and one white 
representative, were responsive. JA 
184-86. The only other evidence was the 
self serving testimony of one defense 
witness, listed in toto in footnote 14 to 
appellants' brief. Furthermore, appellants 
assertion that white representatives must 
be responsive because "white candidates 
need black support to win" A. Br. at 34, 
is not supported by the record. In the 
challenged districts, white candidates 
consistently won without support from 
black voters. See, supra, 62 n.69; JA 
231-2.



1 32

violation of section 2 , a consistently 
applied race neutral policy does not 
negate appellees' showing, through other 
factors, that the challenged practice has 
a discriminatory result. JA 51, citing S. 
Rep. at 29, n.117.

In this case, the district court did
not find the application of a consistent,
race-neutral state policy. In fact, after
the Attorney General in 1981 objected
under section 5 to the 1967 prohibition
against dividing counties, both covered
counties and counties not covered by

133section 5 were divided. JA 52.
The Attorney General found that the 

use of large multi-member districts 
"necessarily submerges" concentrations of 
black voters in the section 5 covered 
counties. Based on the totality of

133 The challenged plan divided nineteen 
counties not covered by Section 5.



1 33

relevant circumstances, the court below
similarly concluded that, in the non-
covered counties as well, black citizens
have less opportunity than white citizens
to participate in the challenged majority
white multi-member districts and to elect
representatives of their choice.

The decision of the district court
rests on an exhaustive analysis of the
electoral conditions in each of the
challenged districts. The lower court
made detailed findings identifying the
specific obstacles which impaired the
ability of minority voters to elect
candidates of their choice in those
districts. The trial court held

. . . the creation of each of the 
multi-member districts chal­
lenged in this action results in 
the black registered voters of 
that district ... having less 
opportunity than do other 
members of the electorate to 
participate in the political



134

process and to elect represen­
tatives of their choice. JA 
54.

This ultimate finding of fact, unless 
clearly erroneous, is sufficient as a 
matter of law to require a finding of 
liability under section 2.



CONCLUSION

The decision of the three judge 
district court should be affirmed.

Respectfully submitted,

JULIUS L. CHAMBERS 
ERIC SCHNAPPER 
C. LANI GUINIER *

NAACP Legal Defense
and Educational Fund, Inc.
16th Floor 
99 Hudson Street 
New York, New York 10013 
(212) 219-1900

LESLIE J. WINNER
Ferguson, Watt, Wallas,
& Adkins, P .A .
951 S. Independence Blvd. 
Charlotte, North Carolina 28202 
(704) 375-8461

ATTORNEYS FOR APPELLEES, Ralph 
Gingles, et al.
♦Counsel of Record

DATED: AUGUST 30, 1985