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

    No. E&1968

Ix Tm
$rqrrrmr gmfft nf tItrP flnilsil filalps

Oc:pgpn TER![, 1986

Irlcv II. Tuoeraunc, etol,
v. AppelJmi^s,

Bar,rr GtrtcLus, et al.,
Appllaes.

On Appcel fron the United States Illstrict Court
fortho Erdcrm District of North Carolina

BRIEF FOR TEE L]\WYERST COMMITTEE
r.OB CfiTIL RIGHTS UNDER LAW ANI)
TEE A}IEruCA}T JEWISH COMMTTTEE

AS AMICI CARIAE ST'PPORTING APPELLEES

JauEs RoaEsf,sor
EAroL B. Tytrn, Jn-

Co{teinuor
NoBUN RrLrcE

Tnrstec
Wnr.Hr L Roarxsox
FBANT B. PAE,m
Serwr, Isslcgenorr
PATBtcra M. Ilrxneax

Llwyals, Courrunu r.on,
Cryrr. RrcET{r UNDEB LAw

14(X)'Eye'Stnrt, N.W.
Suite 400
Washington, D.C. Z000E
(202) 37r-L2L2

Seuupr, RAaIxovE
BICEAED T. Foruu

TEE ATEaICAN JEwIsE
Cof,rIIEE

166 East E6 Street
New york, New york 10022
(212) 761-4000

Attorneys tor Amici Cttrio,c
r Couasel of Becord

Wrr,aora. E ct pitr.rrr.c Co.. lxc. - ZA9.OOoC. Wa.Htio?oil. O.C. e@Ot



TABLE OF CONTENTS

STATEMENT OF INTDREST

INTRODUCTION AND SUMMARY OF- ARGU.
MENT

ARGUMENT

THE DISTRICT COURT PROPERLY CON-
CLUDED TIIAT THE TOTALITY OI.' CIR-
CUMSTANCES DEMONSTRATED AN IM-
PERMISSIBLE DILUTION OF MINORTTY
VOTING STRENGTH, AND ITS ANAI,YSIS
OF EACH OF THE RELEVANT FACTORS
WAS CONSISTENT WITII THE VOI'ING
RTGIITS ACT AMENDMENTS OT 1982....

A. Section 2 Violations Are Estnblished By the
"Totality of the Circumstance.s" ................_..

B. The Distriet Court's Ultimate Conclusion of
Discriminatory Result was Fully Supported
by the Totality of Circumstances ._...-_

THE DISTRICT COURT DID NOT ERR IN
CONCLUDING TITAT THE ELECTION OF
SOME MINORITY CANIDATDS DID NOT
ALTER THD TTISTORIC PATTEITN OF LACI(
OF OPPORTUNITY FOR MINORITY VOT-
ERS, NON DID TT ADOPTA PROPORTIONAI,
REPRESENTATION STANDARD .....

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

B. Appellants' Claim that the District Court
Imposed a Proportional Representation
Standard Ilarkens Back to the Rejected Ar-
guments Made by Opponents of the L9g2
Amendment to the Voting ltights Act-_.-..--

Page

I

2

4

T.

II.

It

t2

t7



ii

TABLE OF CONTENTS-Continued

APPELLANTS SEEK TO NULLITY TIIE
1982 AMENDMENT TO THE VOTING
RIGHTS ACT BY FORECLOSING THE JU.
DICIAL INQUIRY INTO THE TOTALITY OF
THE CIRCUMSTANCES WHICH GTVE RISE
TO CLAIMS OF VOTE DILUTION

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

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

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

CONCLUSION

lu

TARLE OF AUTHORITIES
Page Cases: Page

Beer o. United States,374 l'. Supp. 363 (D.D.C.
19741, aac'd 425 U.S. 130 (f976) 14

Bolden a. City of Mobile,423 F. Supp. 384 (S.D.
Ala. 1976), afr'd 571 F.zd 238 (5th Cir. lg78),
reo'd 44$ U.S. 65 (1980) ...-...--..--.1, passim

Boykins a. Huttiesburg, Civil No. 1177-0062(C)
(S.D. Miss., March 2, 1984) 23

Burns a. Richard.son,384 U.S. 73 (1966)................ 2,8
Chopman a. Meier,420 U.S. I (f975) g

Chrysler Corp. o. Brown,44f U.S. 281 (19?9).... 6
CitA of Port Arthur a. United, States,6l? F. Supp.

987 (D.D.C. r98r) , &ff'd,469 U.S. I69 (1982)..-. 23
City of Rome a. United States, 472 F. Supp. 221

(D.D.C. 1979), aff'd' 446 U.S. 166 (1980)....-... 16,20
Connor a. Johnson,40z U.S. 690 (f970). 9
Ct'oss o. Baxter,604 F.zd 875 (5th Cir. l9?9) . .

Du'pler Printhtg Press Co. a. Deeting, Zb4 U.S.
443 (1920)

Drnst & Ernst a. Ilochfelder, 425 U.S. l8E
(19?6)

Ferguson o. Winn Parislt Policy Juty, bZB lt.ZtJ
692 (6th Cir. 1976) 26

Fortson u. Dorseg,3?9 U.S. 433 (fg6b) Z,g
Graoes a. Barnes (Graues I), B4g F. Supp. ?04

(W.D. Tex. l9?2) , aff'd sub nom.lVlcite a. Reges-
ter (White I),412 U.S. 766 (f9?S) Zz

Groaes a. Bannes (Graaes .II), g7g F. Supp. 640
(lV.O. Tex. 1974) ,7tac'd. sub nam. White a. Reg-
ester (White II), 422 U.S. 936 (fg?E) 14

Harper a. Virginia State Bd. of Dlections, BgB
U.S. 663 (1e66) zB

Jones tt. City of Lubbock,727 F.zd 364 (5th Cir.
1984), reh,'g en banc denied, 7BO f.Zd 2BB(1984) zg,ZT

Jot'dan a. Winter, 604 F. Supp. 80? (N.D. Miss.
1984), aff'd sub nont. Illississippi Republicort
Enecutiae Committee a. Br.ooks, _ U.S. _,
83 L.Ed.zd 343 (1984) ... 23,26

III.

l9

l9

24

t4

27

30



lv

TABLE OF AUTHORITIES-Continued

Ketchum a. Byrne,740 F.zd 1398 (?th Cir. 1984),
cert. d.enied,, 86 L.Ed.zd 692 (1986)

Ifit'ksey a. Boat'd, ol Su,peraisors of Hinds Cou,ntg,
402 F. Supp. 668 (S.D. Miss. 1976), ofr'd,664
F.zd 139 (5th Cir. 1977) (en bancl, cert. clenied,
434 U.S. 877 (1977)^

Lipscotnb a. Wise, 399 F. Supp. 782 (N.D. Tex.
19751 reu'd, 651 tr.2d l04B (6th Cir. 1977),
rea'd,, 437 U.S. 635 (1978)

ilIajor u. Treen,574 F. Supp. 325 (8.D. La. f983)..
It[andel a. Bradley,432 U.S. 173 (1977)
McDaniel a. Sanchez,452 U.S. 130 (f981)
McMillan a. Escambia County (McMillan I), 638

F.zd 1239 (5th Cir. 1981), aff'd, on reh.earing,
G88 F.zd 960 (5th Cir. 1982), rea'd, Escombio
County a. McMillant 

- 
U.S. 

-, 
80 L.Ed.zd

36 (1984) -l,passim
McMillon o. Escambio Cou.nty (IllcMillan II), 748

F.zd 1037 (6th Cir. 1984) -...-..-- --..6,passim
Moore u. Leflore County Boatd. of Election Com-

ndssionet's,602 tr.zd 62f (6th Cir. 19?4)........
NAACP a. Gadsden County School Board, 691

r.zd 9?8 (rrth Cir. 1982) ...................-....-..-.....-.:.
N.L.R.B. a. Fndt & Vegetable Packers,377 U.S.

68 (1e64)
National l'Voochoot'k Mft's. Assoc. o. N.L.R.B., 386

u.s. 612 (1967)
Neaett a. Sides,571 tr.zd 209 (5th Cir. lg78),

cert. denied, 446 U.S. 951 (1980)
Nixotr. a. Condon,286 U.S. 73 (193f ) -. .---....:...-....
Niron a. Hentdott, 273 U.S. 636 (f927)
Parnell o. Rapides Parislt Scltool Bourtl, 425 F.

Srrpp. 399 (W.D. La. 1976) , afr'd,663 Ir.zd 180
(5th Cir. 1977), cert. denied, 438 U.S. 915
(1e78)

Pet'kins o. City of West Helena,675 tr.zd 201 (8th
Cir. 191t2), at'd ntem.,459 U.S. 80f (1982)...

I'erkins u. Mattlrctus, 400 U.S. 3?9 (l9Zl)
Political Ciuil Voters Orgunization a. Tenell, {>$6

F. Supp. 338 (N.D. Tex. 1983)

Page

t4

t4

23
14,23

27
I

v

TAIILE OF AUTIIORITIES-Continued
Page

Pulll,man-Stand,ard a. Swint,466 U.S. 273 (1982).. l7
Reynolds o. Sims, S77 U.S. 533 (1064) 28

Robinson u. Commissioners Coitrt, 505 F.2d 674
(6th Cir. 1974) ......... 26

Rogers a. Lod.ge,458 U.S. 613 (f982) -.-..-....-....--1, passhn

Sierro a. El Paso Ind. School Dist., 6gL F. Supp.
802 (W.D. Tex. 1984) .- 14

Turner u. llcKeithen, 490 F.Zd 191 (5th Cir.
1973) _.......-. 26

Uniteil Jeutiah Orgatizatione o. Carey, 430 U.S.
t44 {19771 ... 17,20

United States a. Board of Superoisors of Fort'est
Coturty,E7l F.zd 951 (6th Cir. f 978) 14

United States a. Calamat'o, 364 U.S. 351 (1967)--.- 6
United. States a. Carolene Products Co., 304 U.S.

144 (1938) ... 28,29
Uniteil States u. Dallas Cormtg Comm'ission, 739

F.zd 1629 (llth Cir. 1984) .-....... 6
Uniteil States a. Ifiarengo County Commission,

731 F.zd 1646 (llth Cir. 1984), cert. denied,,
106 S.Ct. 375 (1984) ...6,passim

lVallace o. House, 577 l'. Supp. 1192 (W.D. La.
lg74l, aff'd in part and rea'd, in part,615 F.Zd
619 (6th Cir. 1976) , uac'd.425 U.S. 947 (1976).. 9, 14

White o. Regester, 412 U.S. 755 (1973) ...-------..-3, passirn
l'eluerton o. Dtiggers, 370 F. Supp. 612 (S.D. Ala.

1e74) ....... t4
Yiclc Wo n. Hopkins,lfS U.S. 366 (1886) zB
Zimmer u. McKeitlten, 485 F.zd 129? (bth Cir.

f 973) (en bancl, afr'd sub nom. Eust Carroll
Parish School Board u. llarshall, 424 U.S. 686
(1976) .......8, passhn

STATUTES:

Voting Rights Act of 1966, 42 U.S.C. $ 1973... ..2, passirn

RULES:

26

14,23

6

6

20
28
28

23
I

14,23
I'ed. R. Civ. Pro. 62(a) t7



vi

TABLE OF AUTHORITIES-Continued

LEGISLATIVE HISTORY: Page

S. Rep. No. 417, 97th Cong., 2d Sess. (1982),
reprhfied in 1982 U.S. Code Cong. & Ad. News
L77 .----------- -6,Passim

Voting Rights Act: Hearings on S. 53 et ol. Be-

fore tlrc Subcornm. on the Constitution of th,e

Senate Comm. on the Ju.diciary, 97th Cong.,
2d Sess. (1982)

MISCELI,ANEOUS:

E. Banfield & J. Wilson, CitU Politics (1963)...-... -

H. Blalock, Social Statistics (2d Ed. 1979).--.- ... .
J. Ely, Democracy and Distr-trs, (1980)
A. Karnig & S. Welch, Blnck Reprcsentation and

Urban Policy (1980)
J. Kent, Contmentariet on American Law, (l%th

ed. 1873)
Ackerman, Beyond Corolene Procluctt, 98 Harv.

L.llev. 713 (1985)
Berry and Dye, The Discriminatory Efiects ol

At-Lurge Elections, 7 Fla. St. U. L. Rev. 86
(re?e) I

f)avidson and l(orbel, At-Large Dlections and.
Minoritu Group Representation, 43 J. Politics
982 (1981) I

Engstrom, The Reincat'nation of the Intent Stand-
ard,: Federul Jud,ges oil.d At-Lutge Dlection
Cases,28 Howard L.J. No. 2 (1985) (forthcom-
ing) 26

Engstrom and McDonald, The Election ol Blacks
to CitA Councils, 75 Am. Pol. Sci. Rev. 344
(1981) 9,10

Grofman, Misalski, Noviello, The'Totality of Cir-
annstances' Test in Section 2 of the 1982 Drten-
sion of the Voting Rigltts Act: A Socinl Science
Perspectiae, ? Law and Policy 199 (1986) ...... 22,23

vii

TABLE OF AUTHORITIES-Continued

Ilartman, Racial Vote Dilution and. Separation ol
Powet's: An.Erploration of tlte Conflict Be-
tween, the Judicial "Intent' and the Legislatiae
"Results" Stanclards,60 Geo. Wash. L.Rev. 689
(re82)

Jones, Tlte Inpact of Local Election Systems on
Bl.ock Political Representotion, 11 Urb. Af. Q.
346 (1e76)

I(arnig, Black Rept'esentation on City Councils,12
Urb. Aff. q.223 (1976)

Kramer, The Election of Blacks to City Councils,
1971 J. of Black Studies 449 (1971)

Latimer, Blaclc Political Representution in Sottth,-
ernCities,lS Urb. Atr.Q. 65 (1979)

Parker, Racial Genymandering and Legislatiae
Reapytortionment in C. Davidson, Minority Vote
Ditution ( 1984 )...........".............-...

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

Powell, J., Curolene Products Reaisi.ted,,82 Col.L.
Rev. 1087 (1982)....-..".

Robinsorr and Dye, Reformisrn, and Black Repre-
sentation on City Councils, 69 Soc. Sci. Q. 139
(1e78)

Sloan, "Good Goaernment" and tlrc Politics of
Roce, l'l Soc. Probs. 161 (1969)

Page

12

10

10

l0

10

10

t2

28

l0

10

18

I
22
2S

l0

29

I



I}RIEF I,'OR TIIE I,AWYERS' COMMITTEE
IIOR CIVIL NIGTITS UNDEN LAW ANI)
THE AMEIIICAN JEWISII COIITMITTI'I)

AS AMICI CIlRIAD SUI'I'ONTING AI'I'EI,I,EES

STATDMEN'I OI'' IN'f EREST

The Lawyet's' Committee for Civil Rights Untler Law
is a nonprofit organizaLion established in 1963 at the re-
quest of the President of the United States to involve
leading members of the bar throughout the country in
the national effort, to assure civil rights to all Amet'icans.
Protection of the equal voting rights of all citizens has
berln an important component of the Committee's wol'k,
and it has submittd amicus curiae briefs in a number
of voting rights cases decided by this Court, including
Esm,mbia County 'u. McMillnnt 

- 
U.S. 

-, 
80 L.Ed.

2d 36 (f984) ; Rogers a. Lodge,458 U.S. 613 (1982);
McDaniel a. Sanchez, 462 U.S. 130 (1981); and City ol
Mobile u. BokJen,446 U.S. 65 (f980). The Lawyet's'
Committee has more than eighteen years' experience liti-
gating voting rights cases, including several appearances
before this Court.

The American Jewish Committee is a national organi-
zation of approximately 50,000 members which was
founded in 1906 for the purpose of prctecting the civil
and religious rights of Jewish Americans. It has always
been the conviction of this organization that the security
and the constitutional rights of Jewish Americans can
best be protected by helping to pleserve the security and
constitutional lights of all Americans, in'espective of lace,
leligion, sex or national origin.

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



2

INTRODUCTION AND SUMMARY OT ANGUMENT

This appeal challenges a determination by a three-

iuJge aisirict court tlit a legislative. redistricting plan

i,""'.i.a by the General Assembly of North Carolina had

it e efect-of diluting black voting strength in- six mu]!i-

mernber state House- of Representatives and Senate dis-

tricts and in one t'acially gerrymandered state Senate

distriet.
Although this appeal presents this Court with its first

pl.;;;t;;iew of a case-involving Section 2 of the Voting

ni;ha. AcL, 42 U.S.C. $ 19?3, since its amendment bv

co-rrsr.., in 1gg2, the issuas presented nonetheless fall

witliin the well_developed jurisprudence of this court con-

;;ilg uot" .lilutior. ei shke in this litigation is the

"Uifitiot 
the federal judiciary un!e1 the mandate of the

Voiing Rights Act to void tliscriminatory redistricting
plansind to ,""rr. for black citizens the full opportunity

io .qouffy participate in the political proce'ss and to- elect

it " ""p"o.ntatives 
of their choiee' Appellants,-yith !|te

uo.r.iri of the solicitor General, seek to debilitate the

"**no;a 
voting Rights Act by asserting that the-trial

court's careful examination of the context in which a

vote dilution claim arises necessarily leads to a "propor-
tional representation" standard of review' In addition'

appellants would reinfuse an intent standard into the

eci, aespite its expt'ess repudiation by Congress in 1982'

by requiring p"oof of the electorabe,s racial motivation

Uefote racially polalized voting may be weighed as an

evidentiary factor in a vote dilution claim'

It is instructive that the attempt to secure such an

evisceration of the amended Voting Rights Act oecurs in

the context of at-large elections. Beginning wiLh Fortson

a. Dorsey, S?9 U.S. 433 (1965) and Bw'ns o' Bichartlson'

384 U.S. ?S (1966), and continuing through Rogers u'

Lotlge, this Court has repeatedly viewed with skepticism

the 
"use of multimembei districts in communities evi-

tlencing a history of sharp racial polarization and dis-

criminitory practices. Although the use of at-large sys-

3

tems in itself violates neither the Voting Rights Act nor

the Constitution, it is long settled thab these systems sin-

gularly lend themselves to an impermissible diminution
of tt * value of the franchise of minority populations. In
amending the Voting Rights Act in 1982, Congress drew
upon two challenges to at-large elections to fi'ame the

"totality of the circumsbances" standard embodied in Sec-

tion 2 of the Act. See lYhite a. Ilegester, 412 U.S. ?55
(19?3) anrl Zhnrner a. McKeithen,485 f.2d 1297 (5th

Cir. 19?3) @n bancl, afr'd sub nom. Oast Caruoll Parish
Scfutol Board a. Illarslrull, 424 U.S. 636 (19?6).

Under the statutory "totality of the cit'cumstances" test
derived f.rom Wldte and Zimmer, vote dilution claims are
of necessity fact specific and must correspond to the local

context. North Carolina is a state with a long history of
official discrimination against blacks in all aspeets of
civil life, including the iron-clad preclusion of any role in
political life. Ft'om the conclusion of Reconstruction un-
til 1969, no black had ever been elected to the State House
of Representatives; not until f975 did any blacks num-
ber among the state's SenaUors. Against this backglountl,
the claims of "propottional representation" can be laid to
res[ with the most rudimentary examination of North
Carolina political life. Albhough blacks constitute 22.4%
of the state's population, between l97l and 1982 (the
year this lawsuit was filed), the number of blacks in the
state House was between two and four out of a total of
120; between 19?5 antl 1983, there were one or two black
members of the state Senate out of a total of 50. Only
five House districts and two Senate districts are involved
in this litigation and, as a simple arithmetical matter,
the outcome woultl not and could not guarantee pl'opor-
tionality.

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



4

otal role of the voting rights of America's minority citi-

;;;;. if *," political 
"pt*itt"t 

are to be utilized to eradi-

."i. tt" vestiges of-discrimination from our society, full

".J.qr"f 
par-ticipation in the political process' including

tf," 
"Uifity 

io ele*l representatives, must be guaranteed to

*irr.iti.r under the careful and exacting judicial scru-

tiny mandated bY Congress'

As amiei, the Lawyers' Committge {or Civil Rights Un-

,1.;-L;; "nd 
tt. Airerican Jewish Committee appeal to

this Court not to waver frnm this task'

ARGUMENT

I. TTIE DISTNICT COURT I'ROPERLY CONCLUDEI)

THAT TTIE TOTALITY OF CIRCUMSTANCDS
DEMONSTRATED AN IMI'ERMISSII}LE DII'U'
,[ION OF MINOITITY VOTING STRI'NGTH, AND

ITS ANALYSIS O}' EACH OF THE NELEVANT

rAC'TORS WAS CONSISTENT WITH TIIE VOTING

RIGHTS ACT AMENDMENTS OF I98Z

A.Section2YiolationsAreEstablishedl}ythe.,Total.
ItY of the Circumstances"'

In 1982, Cougress enacted a series of amendments to

the VotingRights AcL,42 U'S'C' $ l9?3, to securefor vic-

tims of tl'lscriminatory vote dilution a strong and work-

able statutory remecly. Congress devoted particular at-

tention to the standarcls for- proving abridgment of the

right to vote under Section 2 of the amended Act as a

re-sult of this Cout.b,g ruling that claims of unoonstitu-

tional vote dilution can be premisetl only upon a showing

of discriminatot'y intent. City o7 Mobile u' Bolden, 446

U.S. 65 (1980).' The legislative history of the 1982

u*.na*"nts makes unmistakably clear that the principal

objectivewastoprnvidearemedyforelectoralschemes
that deny minoriiies an equal opportunity to particiltate

in the potiticat process and eleet representatives of their

tThaCituo|It[obilepluralityextendedthesamestandardto
vote rlilution claims under the pre-1982 version of Section 2' 446

U.S. at 61.

6

choice without requiring proof of discriminatory intent'

S. n"p. No. 41?, g?ttl Cong., 2d Sess' at 15-16, reprinted

in fg'82 U.S. Co<le Cong. C eA. News 1?? lhereinafter
cited as S. ReP.l.r

2 The solicitor Genorul srgues in his brief that the senate Report

"cannot be taken as determinativc on all counts"' and that the

etatements of Senltor Dole must instearl "be given particulur

weight." Brief for the United States as Amicus Curiae Supporting

Appeltants at 8 n.12, 24 rt.49 [hereinafter citerl as I]r' for U'S' I

Hlwever, Senator Dole fully endorsed the Committee llcport' us is

clear from the first sentence of his Additional Views: "The Com-

mittce Report is an accttrate stntement of the intent of S' 1902' as

'reported by the Committee." S. Rep' at lt)B (Adtlitional Views of

Senator Dole). See atso S. Rcp. at 199 (Strpplemental Views 
11f

Senator Grasaley, co-Eponsor of Dole compromise amcndment) ("1

". *rtolty satisfied wiih the bill as reported by the Committee antl

Iconcurwiththeinterpretationofthisirr:tionintlreCrlmmittee
Report").

Contrary to the Solicitor Gcneral's contention, the Senate Ileport

must be regarderl as an authot'itative pronouncement of legislative

intcnt,sinceitwasendorsedbythesupportersoftheoriginnlbill'

", ,r"il 
as by the proponents of the compromise amendment' Srzc

Chntsler Coip. o. Broim,44l U.S. 28r, 311 (19?9) ; Dultle:v Princ-

ing-Press Ctt. u. Deering,254 U'S' A43,474 (1920)' The Solicitor

GJnerat,s extensive reliance on the statements of witnesses before

the senate committee on thc Judiciary is unsupportable: "Ilemarks

..'marleinthecourscoflegislativedebateorhearingsothcrthan
ty'p.a.on. responsible for the preparation or the drnfting of a

titt,'or" entitled to little weight " '" Ernst tt Ernst u' Iloehft:klct'

426U.S.186,203n.24(19?6).seeolsoNationulWotnltootklll|rs.
Assoc.l).N.L.R.B',385U.S.612,639-40(196?);N'L'R'B'a'Fruit
& Ve.getuble Paclcers, S?? U'S' 68, 66 (f964); Ilniled States tt'

Calamaro, S54 U.S. 351, 367 n'9 (1967) '

TheSolicitorGeneral'spositionisrrradicaldeparturefromthe
p"c,iou.reliancebytheJrrsticeDeprrrtmcntonthcSerratelleport
as the authoritative vehicle for interpreting Section 2. Ileferent:es

to the Report are found throughout the government argttnrent op-

posingtheat-largeelcctionsysteminDallasCotrnty'Alabam:r
tf.i"i for Appellant at 20,26, 26,27, 36,38, 41, United Slates o'

Dullas Countlt Commission, TSg F'zd 1629 (llth Cir' 1984)' and

are cited as authority in more than tcn pages of its twenty-five

p^U" u.ru."nt in Uniteil Stttlcs tt' Morcngo Counkl Commissiott'

hrief f,,r Appellant at 16, 18, 19, 20, 2l' 22' 23' 25' 26' 27' 36' 39'

united shrii o. Marengo county commission, ?31 F.zd 1546 (lltlr
Cir. 1984), cett. denied,,l06 S'Ct' 376 (1984) '



6

The intent of Congress as revealed by the statutory

language and the legi-slative history of the 1982 amend-

*"nt to Section 2 makes five things clear'

First, in enacting a Section 2 results test, Congress in-
tended to eliminate the necessity of demonstrating dis-

criminatory intent to prove a violation' S' Rep' at 27;

McMillan, i. Escatnbia County (McMitlan ll\, 748 F'Ld

103?, 1041-42 (5th Cir. 1984).

Second, the results test expressly "r'estore[d] the pre-

Mobile legal stantlard which governed cases challenging

election systems or practices as an illegal dilution of the

minority-vote," S. f[ep. at27, which Congt'ess understood

not to require proof 
-of 

discriminatory intent' This "re-
sults" tesi was a statutory codification of the test used

by this Court inWlfite a. Regester, S. Rep. at"Z], and the

pre-City ol Mobite case law, most notably, Zinrmer u'
'McKeiihett. 

Accordingly, the pr*City of Mobile cases

provide a guide as to how the statute is to be interpreted'
'S. n.p. uiZl; see also Uniteil States o. Marengo Cotutty

Commission, TSl F.zd 1546, 1565-66 (llth Cir' 1984),

cet"t. tlenied. tg5 S.Ct. BZ6 (1994).

Third, Congress intended that proof of a Section 2

violation shouid be "based on the totality of the circum-

stances." 42 U.S.C. $ 19?3(b). Under this standard,
plaintifrs are held to a showing that the "political proc-

esses leading to nomination ancl election wet'e not equally

open to participation by the group in question-that its
members had less opportunity than did ot'her residents in

the district to participate in the political processes and to

elect legislators of their choice." Wh,ite,4l2 U.S. at 766'

The typical evidentiary factors which may be used to
prove that minorities have Iess opportunity to participate
in the political process are spelled out itr the Senate Re-

port.r

7

Fourth, the evidentiary factors derivetl from these

.u.u* ur"'relevant in any judicial inquiry into claims of

vote dilution. However, the legislative history is clear

that Congress intencled that no one factor should pre-

dominate, and "there is no requirement that any par-

ticular number of factors be proved, or that a majority

of them point one way or the bther'" S' Rep' aL l9' In-

stead, Section 2 "requires the court's overall jutlgment'

based on the totality of the circumstances antl guiderl

by those relevant iactors in the particttlar case' of

s The Senate Report specified the following constellution of
factors:

l. the extent of any history of olhcial discrimination in the

state or political subdivision that touchetl the right of the

members of the minority group to register' hl vote' or other-

wise to participate in the democratic protess;

2. the extent to which voting in the rtlections of the state or

political eubdivision is racially polarized;

3. the extent to which the state or political subdivision has

used unusually large etection district's, majority vote require-

ments, anti-single shot provision, or other voting practices or

p.u..,iu.o that may 
"nh"n"n 

the opportunity for discrimina-

tion againet the minoritY group;

4. if there is a candidate slating procoss' whether the mem-

bers of the minority group havc been denied access to thut

proce$;

6.theextenttowhichmembersoftheminoritygroupinthe
stateorpoliticalsubdivisionbeartheelfectsofdiscr.imination
in euch areas as education, employment and hcalth' which

hinder their ability to partieipate effectivety in the politictl
proceSs;

6. whether political campaigns have been characterizcd by

overt or subtle racial appeals;

?. the extent to which mentbers of the minority group ltave

been elected [o public olftce in the jurisdictinn'

Two atlditional factors of lesser evirlentiary significance al'e

mentioned:

whetherthereisrrsignificantlackofresponsivenessonthe
partofelectedofliciatstotheparticularizedneedsofthemem.
bers of the minoritY grouD; [and]

whether the policy underlying the state or political subdivi-

sion's use of such voting qtlaliffcation, prcrequisite to voting'

or stantlard, practice or procedure is tenuous'

S. Rep. at 28-29 [footnotes omittcdl



8

whether the voting strength of the minority voters 
. 
is

. . . 'minimized or-canceled out'"' S' Rep' aL 29 n'118'

quoting Fortson and Burns,

Fifth, Congress intended Section 2 to reach practices

that eilher iompletely negate or minimize the voting

.t*rgtt of minoiitiu.. tt. electoral successes of minor-

ity clandidates is one of a number of circumstances

"ihich may be considered." 42 U.S.C' 19?3(b)' Conse-

,l;;;;t, "tire election of a few minority candidates does

,iot 'n*.r*arily foreclose the possibility of dilution of

the blach votei in violation of this section'" S' Ilep' at

29 n.115, qu,oting Zimmer,485 F'zd at 130?'

Of necessity, the question of the existence of vote dilu-

tion entails an intensely factual inquiry' The standard

deu"lop"A by the pr"-City ol Mobile case law and in- '

.orporlt"d by Congress into the 1982 amendments pro-

uiO"* u frameworklt "t 
t,igtrtights the features that have

recurred through the various factual settings where vote

dilution has been found. These factors cot'respond to

* patraigtnatic setting in which a 
-claim 

of vote dilution

incorporatessomecombinationofthefollowing:(1)
.i.u.irtrt obstacles to the electoral success of minor-

ities, such as multimember districts, Ql a history .of
disci'inrination and/or absence of or minimal minority

political success, and (3) certain behaviotal patterns-that

accentuate the racial axis of the vote dilution, such as

ir.i"ffy polarized voting and racial appeals in electoral

."*pnigrt. The juxtaposition of -the 
particular Jactual

p"ii!* ,sainst the paradigm model of how an electoral

system can operat" io ."n."1 out or diltrte the exercise

oi tt. franchise by racial minorities yields the conclu-

sion whether a violation of Section 2 of the Voting

Rights Act exists.

ll. The Distrlct Court's Ultimate Concluslon of Dis'

criminatory Results was Fully Supported by the

TotalitY of Circumstances' t

Twenty years of voting rights litigation has imparted

rhe clear lesson that certain electoral systems, foremost

I
among them multimember districts or at-large elections'

have 
-shown themselves to have resulted in the illegal

dilution of minority voting strength with such regu-

larity that, while not per se violative of the Voting

Rights Act, these systems must elicit frorn reviewing

.o,irt. a serious presumption of statutory infirmity under

amended Section 2. In its last full treatment of a con-

stitutional voting rights claim, this court emphasized
,,the tendency or multi-member districts to rninimize

the voting strength of t'acial minorities'" Ilogers 'u'

Lodge,458 U.S. it OZl. This.Court has repeatetlly luled

thai atJarge elections violate the statutory or constitu-

tional rights of minority voters,r and has directed courts

fashioniig remedial decrees to avoid the implementation
of such electoral sYstems.6

A wealth of social scientific literature conlirms the

"conventional hypothesis" that at-large elections con-

stitute a significant political disadvantage for minority
cantlidates ancl voters. See Davidson and Korbel, At-
Large Elections and, Minority Group Reyresentation, 43

,1. fotitics 982, 994-95 (Table 1) (1981) (listing empir-

ical studies)., Dissenting from the application of the

constitutional intent standard in Rogers a. Lodge, Justice

I See Rogers, suproi White, suptoi Perkins a' Illattheus, 400

U.S. S?9, 389 (19?f) (atlarge elections described as method for
whites to retain electoral control after black voter registration
increase in wake of Voting Rights Act). In addition, sixteen of

the 23 appeltate court cases citetl in the senate Iteport involved

challenges to atJarge elections, of which ten were successful. s.

Rep. at 23 n.78.
6 Connor o. Jolmson, 402 U.S. 690, 692 (19?0) ("when district

courts are forcetl to fashion apportionment platts, single-member

districts are preferable to large multi-member rlistricts as a general

matter.") ; see also lVatlace o. Ilouse, 425 U.S. 947 (f9?6) ; East

Car"roll Porish Board a. Illorshall, 424 U.S. 636, 639 (1976);

Chopnwn a. tI eiet, 420 U.S. f , f8 (f9?6).
n See also E. Banfiekl & J. \{ilson, Citu Politics 9l-96, 303-$08

(f96S); A. Karnig & S. Welch, Black Reprcsentation on'd' Utbon

iolicA bC (fSSO) ; Ile*y an4 Dye, The Dis*hninatory Efrects of
At-Lirge Elections, ? Fla. St' U. L. Rev. 86, 93 (1979); Engstrom



l0

Stevens focused on the inherent tendency of at-large sys-

tems to maximize majority political power and re- '
ernphasized this Court's skeptical view of multimember
disiricting. 458 U.S. at 632, 63?-38 & n.l6 (Stevens, J',
dissenting) (quoting I J. Kent, Commentaries on Amet-
ican Law 230-31 (12th ed. f873) ).

The facts in this case present a clear example of the

interaction betwepn the at-large structural impediment

and the history and behavioral patterns of discrimina-
tion in North Carolina.t The district court's findings of
fact are replete with documentation of the discrimina-
tion againsi blacks in North Carolina, not only with
respect to the right to vote, but also in housing, educa-

tion, employment, health, and other public and private
facilities. 590 F. Supp. at 359-64. The court noted past

use of literacy tests, poll taxes, anti-single shot voting
Iaws, numbered seat requirements, and other means to
deny blacks the opportunity to register and vote, includ-
ing the continued use of a majority vote t'equirement.

1l

The court found that black Voter registration rates re-
nrained deplessed relative to whites "because of the long
period of official state denial and chilling of black citi-
zens' r'egistration efforts." /d. at 361. Also as a con-

sequence of the histnry of discrimination, blacks con-

tinue to suffer ft'om a lower socioeconomic status which,
the court found, continues to impair their ability to par-
tieipate on an equal basis in the political process. Itl. zrt

361-63. The histotic use of racial appeals in political
campaigns was found to persist, in North Carolina, and

to continue to affect the capability of blacks to elect can-
didates of their choice. Id. at 364. Finally, voting was
found to be severely racially polarized in the challenged
districts, ilL. aL 367-72, and blach candidates to remain
at a disadvantage in terms of lelative probability of
success in running for office. ld. at367.

In sum, with the single exception of denial of access

to a candidate slating process, the districb court found
that all of the factors specified in the Senate Report
existed or wer€ present in the recent past in the chal-
lenged districts. More important, the persistent effect
of each factor, even in isolation, was found to ltave a
direct and appreciable impact on present minority polil-
ical participation which continued to disadvantage blacks
lelative to whites. In light of these lindings of fact,
the district court properly concluded that the signposts
for vote dilution drawn from the case law and legisla-
tive history of Section 2 all pointed to the dilution of
minority voting strength ln the multimember districts
and the single-member Senate district.

II. TIIE DISTNICT COURT DID NOT ERN IN CON.
CLUDING TIIAT I'IIE ELECTION OIT SOIVIE MI.
NORITY CANDIDATES I)ID NOT ALTEIT THE
HISTORIC I)ATTERN OT' LACK OII OPPORTU.
NITY ITON MINORITY VOTItrItS, NOIT DID 11'

ADOI'T A I'NOPORTIONAL NEI'REST'NTATION
SI'ANDARD.

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

and McDonald, The Dlection ol Blulcs to City Councils, ?6 Am'
Pol. Sci. Rev. 344 (fgSf ) I Jones, The Inlpct of Local Electiott
Systems on Black Politicat Representotion, ll Urb. Aff. Q. 346

(f9?6); Karnig, Bluck Representotion on City Councils, 12 Urb'
Aff. Q. 228-242 (f9?6) ; Kramer, The Blection of Blocka to City
Councils, f 9?f J. of Black Studies 448-49 (f 9?f ) ; Latimer, Elcc&

Potiticat Representotion io Southetn Cities, l5 Urb' AIf. Q. 66,

?f-82 (fg?g); Robinson and Dye, Relotmism ond Block Repre'

aentotion on City Councils,6g Soc. Sci. Q. f33-141 (f978); Sloan,

"Good Goaernment" and, the Politics of Rwe, 1? Social Problems

161,1?0-78 (1969).

In addition, studics have documented the impediments against

black representation in southern legislatures created by atlarge
etections, and the amelioration of the discriminatory efiects follow-
ing the elimination of multimembcr districts. See, e.g., Parker,

Rc,r;iul Gertymantleting oul Legislatiue Reo'pporliorunent in C.

Davidson, Minority Vote Dihttion 88 (f 984).

7 Amici emphasize that six of the seven challenged districts use

at-large elections. The remaining district, Senate District No. 2,

was created by extensive realignment and resulted in the division
of a black poputation concentration, thereby precluding'an eftective
voting majority. 690 F. Supp.4t868.



t2

peded minority access to' the political process' It 
-beal's

emphasis that many of the factors focused upon in White

ard it. progeny are not in themselves either illegal or

unconstitutional but may nonetheless, in their aggregate,

trigger the need for remedial intet'vention.s

Appellants' at'guments before this Court would defeat

the overall inquily into the structures, practices and be-

haviors affecting minority political opportunity in two
critieal ways: first, appellants would have the multi-
factored White/Zimmer analysis negated by the episodic

election of black candidates, and second, appellants seek

to introduce an intent standard into the well-developed

concept of racially polarized voting.

A. The Election of Some Black Oflicials Ilid Not Dis'
prove Lack of Equal Opportunity to Elect Minority
OIficials.

Appellants contend that "the degree of success at the
polls Lnjoyed by black North Carolinians" tlistinguishes
lhis suit from prior vote dilution cases and is sufficient

"to entirely discredit the plaintiffs' theory that the pres-

ent legislative districts deny blacks equal access to the
political process." Br. of Appellants at 24. Similarly, the

Solicitor General asserts that the challenged multimem-
ber distriets have "apparently enhanced-not diluted-
minority voting strength." Br. for U.S. at 23. Both

Appellants and the Solicitor General cite the extent of
claimed minority success as a principal reason for over-
turning the district court. This argument is wl'ong as

a matter of law and fact.

As previously stated, the legislative history is clear'

that Congrcss intended that a Section 2 violation should

13

depend upon "the totality of the circumstances," and the.

election of rninority .or,ti,lrtes in challenged districts'
does not, in itself, foreclose a finding of vote dilution'
S. Rep. at 29 n.115. Thus, the degree of minority elec-

toral success is "o?e circumstance which may be con-

sideretl . . ." 42 U.S.C. 19?3 (emphasis added) . See

olso S. Rep. at 29 ("there is no requirement that any
palticular numbet' of factors be proved, or that a major-
ity of them point one way or the otlter."). Indeed the
proviso in Section 2 $ was enacted in response to con-

cerns that a results test would devolve into a standard
focused solely on the extent of minority electoral success.

The two principal cases cited by the Senate Report,
White and Zimmer', both provide direct precedent for the

district court's ruling that the election of minority can-

didates does not necessarily foreclose a finding of vote

dilution. lnWhite, this Court determined on facts almost
identical to the present case that multimember legisla-
tive districki in Dallas and Bexar Counties, Texas, denietl

minority voters equal opportunities to elect candidates
of their choice notwithstanding that two blacks and five
Mexican-Americans had been elected to the Texas legis-
lature from those districts. 412 U.S. at 766, 768-69.

Similarly, in Zimmer. the Fifth Circuit found vote dilu-
tion in at-large, county-wide voting despite the election

of three black candidates after the case was tried.ro

u "Providetl, that nothing in this section establishes a right to
have members of a protectcd class elected in numbers equal to
their proportion in the populatiott." 42 U.S.C. $ 1973.

ro"[W]e eannot endorse the view that the success of black candi-
dates at the polls necessarily forecloses the possibility of dilution
of the bldck vote. Such success might, on occasion, be attributable
to the work of politicians, who, apprehending that the support of a
black candidate would be lxrlitically expedient, car4paign to insure
his election. Or such succcss might be attributable to political
support motivated by different considerations-namely that elec-

tion of a black candidate rvill thwart successful challenges to elec-

toral schemcs on dilution grounds. In either situation, a candidate
coukl be elected despite the relative political backwardness of black

residcnts in the electoral district. Were we to hold that a minority

I

Is "[T]he facts in rillite set the contours for the prtzzle, but the

blank spaces could be filled in with different picces - . ." [Iartman,
Racial Vote Dihttiom anil Sepototion of Powers: An l)aplot'otion
ol the Conflict Between tlw Judicial "Intent" arul the Legislotiae

"Results" Stundords,60 Geo. Wash. L. Rev. 689, 6CO (1082). See

olso Parker, The "Results" Test of Section 2 ol th.e Voting Righta

Act: Abailoning the Intent Storularil,69 Va.L.Rev. 166 (f9ffi).



14

Numerous pre-City ol ll[obile cases, which Congress in-

;.;,il to govern 
-Section 2, establish the proper legal

standard that, where other evidence of minority vote

dilution is present, the election of minority candidates

does not foreclose a fintling of a voting rights violation.rr

Courts construing Section 2, as amended, have reached

the same conclusion.r'

The reasoning of these cases should be apparent' Un-

tler at-largu ,otirg, the election processes can easily be

manipulated by the white voting majority to achieve- any

tlesired result, and the election of rninority eandidates

alone is not determinative of whether minority voters

enjoyed a genuine opportunity to elect canditlates "of
their choicel' Under certain circumstances, notably the

pendency of a challenge to at-large elections, the election

cantlidate,s Euccess at the polls is conclusive proof of a minority
group'e access to the political process' we would merely be inviting
ittempts to circumvent the Constitution. This we choose not to do.

lnstearl, we shall continue to require an independcnt considenrtion

of the record." 486 F.zd aL 1807.

|| Cross tl. Ba*ter,604 F.zd 875, 886 (6th Cir. 1979) (..district

court erroneously held that the election of a single black official

foreclogedanypossibledilutionclaims,');l]nitedstateso.Boortl
ol Superaisois of Fonest County, 6?l F'zd 951, 056 (6th Cir'
f'gZSl i Kirksey o. Boatil of Superoisots ol Hinds County,664 F'zd

139, 149 n.2l (6th Cir' l9??), cert. ilen' 434 U'S' 8?7 (1977);

Grooea rt. Bornes (Gt'ooes II),3'18 F. Supp' 640, 648, 669 (W'D'

Tex. l9?4), oa/,tl on othct gtouttda sub twn'" White a' Regester

(White II),422 U.S.936 (f9?6) i Wolloce o' House,877 F' Supp'

itoz, trsz (W.D. La. 1971\, sfi'd in part and rea'd' in part on other

gntunds,6t6 F.zd 6fg (6th Cir. l9?5), uac'tl om othet gtounda'

nZf U.S. 94? (f9?6) ; Beer rt. Ilnited States,374 F' Supp' 363, 398

n.295 (D.D.C. l9?4), oac'd on othet grountls, 426 U'S' 130 (f976);

Yelaertott a. Dt'iggers,3?0 F. Supp. 612, 616 (S'D' Alu' 1g?4)'

rt See Kei;cltuttt tt, Byrne, ?40 Ir.zd l3$8, 1406 (?th Cir' 1984)'

cert. denieil, 36 L.Ed.zd 692 (f985) ; Illorengo Countv, ?31 F'zd

att672:NAACPo.GaclsdenCountvScho<tlBd,69lF'zd978(flth
Cir. 1982) ; Sict'r'o u. El Pttso Intl. School Ddst:, 601 F' Supp' 802'

8f 0 (W.D. Tex. 1984) i Moior a. Treen, 6?'l F' Supp' 326' 361

(E.D. La. 1983) ; Political Ciuil Voterc Organizatitn o' Tertell' 665

F. Supp. 338, 342'(N.D. Tex. f983) '

16

,t ,',n6-pickctl minority candidates might be "politically
expedieni,, to the whiti majority or entrenchetl political

forces. Zimrnu',485 F.zd at 130?. Similarly, such elec-

tion of minority can<liclates might well be part of an

effort to moot .loi*. of minority vote dilution and to
,,thwart challenges to election schemes on dilution
grounds." Id.

In rushing to herald the electoral success of North

Carolina blacks, appellants and the Solicitor General

overlook the critical findings of fact of the district court.

The statewide figures reveal that there wel'e never more

than foul. blacks in North Carolina's lzo-member llouse

of Representatives between 19?1 and 1982, and never

,no." ih"n two blacks in the 50-member State Senate

from 19?5 to 1983. 590 F. Supp. at 365. In the period

from 1970 to 1982, black Democrats in general elections

within the challenged districts lost at three times the

rate of white Democrats. Tr. 114.

The district court's findings with respect to the 1982

elections showed that there were "enough obviously aber-

rational aspects in the most recent elections," 590 fd'

Supp. at 367, to disprove the contention thab blacks were

no[-still disadvantaged in the multi-member districts
at issue. Although black Democratic candidates did en-

joy some degree of success, it did not nearly rival the

ru.."tt of white Democratic candidates, not a single one

of whom lost in the general elections. Tr. 114, 115' In
llouse District 36, a black Democrat won one of the 8

seats in the tlistrict in 1982. Since there were only seven

white canditlates for the 8 seats in the primary, it was

a mathematical certainty that a black would win. Id'
at 369. In Hottse Distlict 23, there were only 2 white
cantlidates for 3 seats in the 1982 primary, and the

black candiclate ran unopposed in the general election,

but still received only 43% of the white vote. Id. at 370'

In three other elections prior to 1982, the same black

canditlate won in unopposed races, yet failed to receive

a majolity of white votes in each contest. Id.



l6

The rlistrict court macle two critical findings of fact

concerning the purporterl electorul successes of blacks in

N"iit Caiolina. First, even in elections where black can-

didates were victorious, witnesses for the plaintiffs and

deiendants alike agreea *,ut the victor.ies were largely

;;;to extensive silngle-shob voting by blacks'"' Tr' 85'

isi, igg, 184, 1099. 
-Eu.n the defendants' expert witness

conceded'that, "as a general rule," black voters had to

-i"gl*th.t voie in the multimember districts at issue

in TtOut to elect black candidates' Tr' 143?' Thus the

district court determined, "[o]ne revealed consequence

of this disadvantage is that to have a chance of success

i" Ll..tirg candidites of their choice in these districts,

black voters must rely extensively on single-shot .vgting'
;h;;by forfeiting by practical n-ece-ssity their right 

-to
,ot" fot a full state of candidates'" 690 F' Supp' at 369'

Second, the district court also concluded that the evi-

clence at trial showe<l that in several of the 1982 elec-

iion., "the penclency of this very litigation worked as a

one-tlme aclvantage for black candidates in the form of

;;;;;"t political 
-support by white leaders coneerned to

forestall single-mernLer districting'" 690 F' Supp' at 367

n.27. This is exactly the concet'n which led the Zimmer

court to 
'eject 

arseritiors identical to those advanced by

the appellants het'e.

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

tTlhe success that has been achieved by.black candi-

dates to date is, s[anding alone, too minimal in total

Ir single-shot voting occurs when minority voters concentrate

theirvo-tingstrengthononeorafilwpreferretlcandidatesand
delilreratetyfailtoexercisetheirrighttocastball<ltsfirrother
candidates in the race. 'Ihe purpose of single-shot voting is to

enhance the likelihood of a minority cantlidate'e election by depriv-

ir,g *n.inority candidatcs of the minority vote; however' it also

fras the effect of completety elimintting any influence minority

votersmighthaveoverthechoiccoftheele-<,tednonmlntrrity
candidates. See Citv ol Rtnne a' ll'S',446 U'S' 166' 184 n'll)
(r080).

t7

numbers and too recent in relation to the long his-

i-o.y J .o*pf*i. a"ninl of any elective opportunities

i, ""o*p.t oi' orln 
-otgual'}.lY 

.[o support an ultimate

irairs that a biaek ianrliiate's race is no longer a

;G;]fi?r;t uor"i*u i""io'' in the political processes of

;il? G,;either-generally or specifically in the areas

of the challenged districts'

590 F. Supp. at 36?. In t'eviewing this issue' this Court

;;;.,k1 Auter. tn the "intensely local appraisal o-f. !h: .du.:

sign and impact of the ' ' rnultimember districts"'
-rtnitr, 

412 U.S. at 6?0, which the- three-judge districl'

.ou.t g*" the facts of this case' On this issue' appel-

lants' contentions are wrong as a matter of law' anrl

tt * ai.tri.t cout't's factual lindings are supported by

sunstantiat evidence and are noi cleally erroneotls.rr

B. Appellants' Claim that the District Court Imposed

a iroportional Representation Standard llarkcns

Back to the Rejecied Arguments Made by Oppo-

nents of the f98i Amendment to the Voting Rights

Act.

Withoutrloubtthemostinflammatoryclaim[hatcan
be raised in a vote clilution ease is the charge of pro-

portional representation' Cl' Un'ited' Jetuislt' Organiza'
'tio^ o. Caiey,430 U.S. tia, tso-toz (19??)' Appel-

iuittt ...f, to 
-obscure 

the district court's careful exam-

ination of all the Wtr,itc/Zimmet'factols by raising the

bi;;i; charge that the rlistrict cottrt "fltrtly" stated a

standa-rrlof..guat.anteedproportionalrepresentation.,'
Br. fo, Appellants at 19' in appellants' eyes' any-.ref-

el'ence to [he actual propot'tions of blacks in North Caro-

ti* ,. comparetl to Utactt electoral suecess reveals the

Lntir" factual inquiry to have been a subterfuge designed

to con.eal an impos-ition of propor[ional representation'

The district courl opinion, however', expressly disavows

"nV 
*rt.ntion that a violation of Section 2 can be estab-

fiti"O by "the fact that blacks have not been elected

under a challenged <listricting plan in numbers propor-

-uiu putlman-Stondntil tt' Su'int, 456 U'S' 273' 287 (f982);

Fed. Rule Civ. Pro. f2 (a).



18

tional to their percentage of the population'" 590 F'

Supp. at 356.

Consideration of minority electoral success is one of

many evidentiary factors which the case law and legis-

lativl history of the Voting Rights Act specify as proper

grounds tor iudicial examination. The leap from .the
fvidentiary *elghirg of the rate of success to an ipso

facto creation of an entitlement to proportional -repre-
sentation is derived from the arguments made by op-

ponents of the 1982 Amendments to the Voting Rights

Act, namely that there is no intelligible distinction be-

tweln a results test and proportional representation'r6

The argument that consideration of the rate of electoral

success as one evidentialy factor inevitably yields pro-

portional representation was firmly rejected both by

ih. tportorJ of the oliginal amendment and the pro-

pon"nit of the Dole compromise. See, e.g', S' Rep' at 33 .

("[T]h" Section creates no right to proportional repre-

sentation for any group") ; id,. aL f94 (Additional Views
of Senator Dole) ("I am confident that the 'results' test

will not be construed to require proportional representa-

tion"). Since the district court properly considered the

totality of circumstances under the mandated legal

standarrls, the efforts to persuade this Court that it in
fact required proportional representation can only be

understootl as an invitation [o embrace the views of
opponents of the 1982 amendments and should categor-

ically be declined.

ti See e.g., I Voting Rights Act: Heorings on S' 53 et ol' Belote
the Sr{,comlrrt. on the Constdttttiott of the Sennte Comm' or lhe

Jttdiciory, g?tlr Cong., 2tl Sess. 3 (1982) (Opening Statement of

senator orrin tlatch) ("In short, what the 'resttlts' test would do is

to establish tbe concept of ,proportional representation' by race as

the gtandard by which courts evaluate electoral and voting deci-

sions"). A full discussion of the proportional representation objec-

tions of the legislation's opponents can be found in the Senate

Subcommittee's Report. See S. Rep. at 139-147 (Voting Rishts

Act: Rcport of the Subcomm. on the Constitution); see olso id' at

186-8? (Attachment B of Subcommittee Ileport: Selected Quotes

on Section 2 antl Proportional Representation)'

l9

III. APPELI,ANTS SEEI( TO NUI'I'I}'Y THE IO82

AIITENDMENT'TO TIIE VOTING NIGITTS ACT IIY

FOITECI,OSING TIIE JUDICIAL INQUINY INTO

THE TOTAI,ITY OT THE CIRCUMSTANCES

WIIICH GIVE RISE TO CLAI.MS O}- VOTB DII'U'
TION.

A. The Use of Statisticnl Analysis nnd Lay l#itnesses

to Establish ttacially Potarized Voting Without

Any Inquiry Into Voter lllotivation Is l'ully Sup-

portud by tlie Case Law and the Legislative llistory
of Sectlon 2.

Appellants al'gue that the district court employetl an

...ontu, legal standard in concluding that the.facts of

this case showed a high degree of racially polarized vot-

ing. They contenrl that the district court adopted a per

trlrfu that racial bloc voting occurs whenever less than

60percentofthewhitevoterscastballotsforblackcan.
didates. Br. for Appellants at 86'rn

Bacially polarized voting is a key component of a- v9!e

clilution .lairn, as emphasLed both by Congress and this

Court. "In the context of sueh racial bloc voting, and

other factors, a particular election method can deny

minority voters equal opportunity to participate tnean-

ingfully in elections." S. Rep. at 33' As this Court

wrote in Rogerc,

Voting along racial lines allows those elected to ig-

nore 6lack i-nterests without fear of political conse-

ifu.n""t, and without bloc voting- the minority -candi-
,iate" would not lose elections solely because of their
race.

458 U.S. at 623. Racially polarized voting, when proven'

provides a cout't with tl critical evidentiary piece show-

r0 Tbe solicitor Gencral conceded in his brief in support of

the Jurisdictionat statement that "[a]ppellants' restatement nf

the district court's standard for racial bloc voting is imprecise,"

since .,the district court did not state that polarizati0n exists un-

less white voters support black canditlates in numbers at or exceed-

ing, 6070." Br. for the U.S' as Amicus C'utioe at l3 n'10'



i

20

ing the political ostracism of a racial minority' City oJ

ii*,, a.' Unite(I St;at'es, 472 F' SuPP: 221' 22$ (9'D:9'

i9i9l , afi'd,446 u.S- iro t1980)' 
-whtn 

combined with

.itt.r'"t-t*rge elections or a suspected ger-rym11der' bloc

ili;; J*orit.t important confirmation that the poten-

tial siructural impldiments to minority political oPI9.t-

ir.ity will in fact bar equal opportunity and the ability

to elect representatives ferferred t-y the minority com-

;";i;t. drc Marenso'Countv, 7.?t F'zd at 1566-6?

i.".i"ffy polarized u"oting ordintrlily. the "keystone" of

a tlilutior claim) ; Neuelt tt' Sitles, 5?1 F'zd 209' 223

n.fo istf, Cir. l9?8) , cert. d'enietl,446 U'S' 951 (1980)'

At bottom, racially polarized voting is that which

"tottowtrl ,r.iul lines . . .' U*t,'L, Jeuish Otgoniaztions'

aio U.S. "t 
tOo n.24. Courts construing the 1982' amend-

ment to Section 2 have fountl lacially-polarized voting

*rr., trrr facts show a consistent pattern of a majority

oi onu race voting opposite to the majolity of the other

;;.;. McMillan il, iae F.2d at 1043' whether or not

a sectio, 2 violation has been provetl depends upon.the

a.gi." "t racially polarized v^oti-ng, .i'e'' "the ertent to

;;iri roting in t1e'elections of the state or political-sub-

Jiuirion is iacially polarized'" S' Rep' at 29 (emphasis

atlded).

In the present case, based on evidence presented by ex-

pert witnesses and corroborated by the direct testimony

ott"ywitnesses,therlistric[courtconcludedthat..within

"ir-i[r" 
.r,rllenged districts racially polarized_voting ex-

ists in a persistent ancl severe degree'" 690 F' Supp' at

367. In direct reliance on the language of the Senate

n.po"t, the district cout't framed the inquiry in terms..of

"rtetermintingl the extent to which blacks and whites

,otu ain.r.ntl"ly frorn each other itt relation to the race of

the candidate.; 690 F. Supp. at 36?-68 n.29. The district

courtreliedinpartontestimonybyplaintifrs'expert.wit-
ness, Dr. Bernard Grofman, whose compreltensive study

of racial voting patterns in 63 elections in the challenged

2l

tlistricts revealed consistently high correlations between

the number of voturs of a specificlace and the number of

,otn* to, canditlates of thaC race' These correlations were

r"-tigf, in each oi tt" elections studied that the prob-

ability of occurrence by chance was less than one irt

100,000. 590 Ir. SuPP. at 368'

The district court analyzed elections in each of the

chat-tengeO districts to conclude thab' in each district'

r-.i-i prf-rization "operates to minimize the voting

rt*rgtfi of black voters'" kt' at 372' This conclusion

was fiuttressed by the observations of numerous lay wit-

n*.* involved in North Carolina electoral politics' The

uncontroverted evitlence showed that rlo blaclt candi-

date received a majority of white votes cast in ang of the

ig- ulu.tions, including those which were essentially utt-

.""t tt"a. iA. Whit; consistently ranked black candi-

dates at the bottom of the field of candidates' even where

those candidates ranked at the top of black voters' prefer-

ences. ld, Given the overwhelming and uncontradicted

facts of this case, there is no qu*ition but that racial

poi"tir"tion in each district was, as the district court

;6;tly found, "substantial or severe'" 690 F' Supp' at

372.

Appellants challenge the methorlology utilized..by plain-

titrsi e*pert witness"as being "severely flawed'" Br' for

epp"ff"n* at 41. As the dittti"t court opinion makes

.ili", tf,rt methodology depended upon two distinct types

of statistical analysis, ecological regression and homoge-

*u, precinct analyses' These statistical studies were

further corroborated by the lay testimony of direct par-

i[ip""tti, North Carolina politics' 590 F' Supp' at 36?-

68 n.29.

Appellants contentions run directly contraty to- the pre-

pondo'"n.u of cases decitled prior to City ol Mobile' wfrich

b"t g-* intended the cour[s to follow, as well as- those

"UO&,r* 
Seetion 2 after its 1982 amendment' In the

iil:citi og Mobite cases, courts relied on statistical or

I

l



22

non-statistical evidence to establish racially polarized vot-

ing by a showing of a high degree of association between

thi racial co*porition of the voting precincts and the race

of the candidlte for whom votes were cast' See, e'g''

Graues a. Banu'es, 343 I". Supp. 704, 781 (W'D' Tex'

lg72) (three-judge court) , afr'd sub nont' White a' Reges-

ter (polarire,i uoting established by Mexican-Americans

votini overwhelmingly for candidates of own national

backg-round and whites voting overwhelmingly for white

candidates). In conformity with this approach, the eeo-

logical or bivariate regression analysis performed- UV D.t'

Giofman compared the votes for minority candidates in

clifferent preclncts with the racial composition of that
precinct in notn racially segregated and racially mixed

precincts. As the district cout't observed, the result of
such a comparison is considered statistically significant
if the relationship between the variables is sufficiently
consistent, and subsfuntiaety significant if it is of a suffi-

cient magnitude to affect the outcome of an election' 590

F. Supp. at 36?-369. See McMillan a. Dsaambia County
(McMiltat't, /), 638 F.zd 1239, l24l'42 n.G (5th Cir'
f981), afi'd on relwaring,688 F.zd 960, 966 n.l2 (6th

Cir. 1982) , reu'tl rm otlrc'r grounds, Escontbia County u.

McMiilan, 

- 
U.S. 

-, 
80 L.Ed.zd 36 (1984) i Mc-

Millan 11,748 F.Zd at 1043 n.12 (alfirming the definition
of bloc voting and related findings made in McMillon Il.
The use of regression analysis to demonstrate the associa-

tion between the racial composition of precincts and vot-
ing patterns is supported by both the pr*City ol Mobile
case law'? and cases applying Section 2 after its l98Z

23

amendment.rs

The additional statistical study performed by Dr'

Glofman, hotnogeneous plecinct analysis (also known as

iextremecase" analysisf, is an accepted statistical method

."*p".ing the voting patterns in precincts with heavy

concentralions of onu ,i." and other precincts with com-

;;;il eoncentrations of another race' See City ol Pott

Arthur a. uniteil States,5l? F. Supp' 98?, 1007 n'136

(D.D.C. 1981) , afi'd,459 U.S. 159 ( 1982) 'rt'

In addition, ample precedent supports the d.istrict

court,s reliance on iron-it"tistical evidence to supplement

the testimony of exPerts.zo

rr See Parhell u. Ropideu Porish Scltool lloard,426 F. Supp. 809,

406 (W.D. La. 19?6), ofr'd.,663 !'.2d 180 (6th Cir. l!78), cett. de-

ried, 438 U.S. 916 (19?8) (regression analysis demonstrated high
probability of polarization); Boldett tt. City ol Mobile,423 F. Supp'

384,388-89 (S.D. Ala. 1976), ofr'd,67f I".2d 238 (5th Cir' 1978),

reo'd on other grounds, 446'U.S. 65 (f980) (regression analysis

supported finding of racial polarization) - Aecu'il II. Blalock, Socdol

Statistics, ch. f? (2rI ed. f9?9) ; Grofman, Migalski, Noviello, Tle
'Totality ol Citcntttstonces Test' in Section 2 of the 1982 Esteuion

ol the Yoting Rights At:t: A Sociul Scient:e Perspectiue' 7 Lav'

and Policy f99 (f986).

ra See Jordo,n rt. Wintet',604 F. Supp. 80?, 812-813 (N'D' Miss'

1984'),ofr'dsub.norn.,iudssissdppdRe'ptblicontr)recutioeContntittee
p. Brook|,- U.S, 

-, 
83 L.Ed.zd 343 (1984) (bivariate resre$-

elonanalysisindicaterlhighlevelofracialpolarization);Marengo
County, isf f.za at 156? n'36 (aflirming rlistrict court's acceptance

of ""i."rrion 
enalysis to show polarization); Jonee o' Cita .ot

Lubbick, 727 F.Xt 364, 380 (6th cir. 1984) (bivariate regression

analysis provitled strong basis for eourt,g linding of polarization).;

Ul,iCp-o. Godsden Cointa School Boaril,69l F'zd 9?8' 983 (llth
Cir. 1982) (aame regression technique used in Mcltlillnn I demon-

strated polarization).
tsSee, e.g., Terrell, supra,666 F' Supp' at 348; Port Arthut'

su,'yro,617 F. Supp. at 100? n.136. See also l'eilcins a' City ol Weat

Ililenn,6?6 F.zd 201, 213 (8th Cir. 1982), ofr'd mem' 469 U'S' 801

(1982) ; Lipscontb tt. Wise, 399 F. Supp' ?82, ?85-786 (N'D' Tex'

iSZOl, ,"r'iuoothet gxtunds, S6l F'2d 1043 (6th Cir'1977)'tett'tl'
437 U.S. 636 (19?8)

20 See. ljlaior tt. Treen, 6?4 r'. Supp' 326, 338 (E'D'La' 1083)

(testimonyoftrainedptlliticalolrserversconsideredprobativeof
t tuc voting) ; Tetrell, suptu,666 F' Supp' at 348; Bomc' eupra' 472

F. Supp. il zza-zzz (finding testimonv of black deponents highlv

probaiive of bloc voting) i Boakins tt' Ilottiesburg' No' H7?-

boOz(C), slip op. at 15 (S.D. Miss., March 2, 1984) ("lav witnesscs

from the White comnrunity confirmed that members of the

White community continue to oppose and fear the election of

Blacks to ollice.")



24

ll. Appellants and the Solicitor General Seek to Re'

lmpose an Intent Standard Onto Section 2 Claims

by Ilequiring I'roof of lllotivation of Voters'

Despite the district court's use of statistical and lay

witness evidence ,,to determine the extent to which blacks

and whites vote differently from each other in relation to
the race of candidates," 690 F. Supp. at 36?-68 n'29, ap-

pellants persist in eharging that a per se rule was im-
posed. fo tne contral'y, only altet concluding that sub-

stantively significant racial polarization existed in all but
two of the elections analyzed ditl the district court note

that no black candidate had received a majority of the

white votes cast. The cout't specifically referred to this
flnding as one of a numbet of. "LaTdd,itionnl facts" which

"su,pport the ultimate finding that severe (substantively

significant) t'acial polarization existed in the multi-mem-
b& district elections considered as a whole." Id. at 368

(emphasis supplied).

The principal method for measurement of racial po-

larization relied on by the cout't below was the statisti'
cally significant coruelation between the number of voters
of a specific race and the number of votes for candidates

of that race. 590 F. Supp. at 36?, 368. The Solicitor
General's charge that, under the lower court's methocl-

ology, a "rninor degree of racial bloc voting would be suf-
ficient to make out a violation," Br. for U.S. at 29, is
gravely misleading since it confuses the lower court's
definition of substan'tiue significance with the court's ini-
tial definition of racial polarization as also requiring
statistical significance. Contrary to the Solicitor Gen-

eral's conelusion that a "minor degree of racial bloc vot-
ing rvould be sufficient to make out a violation," Br. for
U.S. at 29, a low cot't'elation would result in a finding of
a low extent of polarization and would weigh agabwt an

ultimate conclusion of impermissible vote dilution.'2r

26

Both the solicitor General antl appellants propose meth-

ods to discount the importance of raeial bloc voting by

,"qriti"g proof that racial motivation unrlerlies the dis-

parate ,oting patterns. Appellants would hold plaintifrs

[o a nigttma-rish stanrlara oi conclusively establishing.the

intent 
"ot tt" electorate by disproving possible-motivation

L;;4rt other factor tbesideJ racel that could have in-

nu"r.e.l the election." Br. for Appellants at 42' The

Soti.ito. Genet'al similarly advocates a standard requir-

ing plaintiffs to show that "'minority candidates '--'^'
loi Llections solely because of their race'' " Br' for U'S'

ui gi (quoting liogrrt u. Lod'gel' T.his standard' it is

argue.l, wouta ,"ni"" racial bloc voting "largely ilrele-

nrit," itt.; if a losing black candidate receives some un-

,p*ifi.d amount of white support, this would demon-

sirate that motivational factors other than race play a
role in the election.

Congress has made it plain that Section 2 plaintiffs are

no lonier required to ascribe nefat'ious motives to the

individuals oi eom-unity responsible for discriminatory
election results; thus, it is immaterial whether white

voters refuse to vote for black candidates "solely because

of race" or because of some other factor closely associated

with race. The impact of racial bloc voting on minolity
political participation is the Eame l'egardless of the ex-

opposing black candidate gets the reverse would clearly not con-

,iiirt" ,un"." polarization, as the Solicitor General contends. See

Br. for U.S. at 29. In fact, since such a disparity would not be

statistically eignificant, it would not constitute racial polarization

at all. The suggestion that the district court's definition of racial

polarization woukl invalidate numerous electoral schemes across thc

country, sett id,,, at 30, conveniently ignores the fuct that the court's

correlation analysis correctly focused on "the ecteat to rvhich

voting... is raciatly polarized." S. Rep. at29 (emphasis supplied)'

Raciai polarization is properly evaluated as a question of degree'

and not as a dichotomous characteristic rvhich is lcgally conclusive

if present and irrelevant in all othor caaes'2r Thus, the hypothetical situation in which a rvhite candidate
reeeives 6l/s of the white vote and 49(/o of the black vr-rte and art



l
j

1

i

i
,
I

26

planation or motivation for that phenomenon'2z In the

pr"run.u of other White/Zimmer f.acto'*s, if white voters

consistently shun black candidates for reasons other than

race, the result is still that the black community is effec-

tively shut out of the political pt'ocess.z3 In delineating
the iactors relevan[ to i showing of unequal opportunity
to participate in the political ptocess, Congress relied

heavily on federal Couits of Appeals' interpretations of
lyhil;, none of which adopted a definition of racial polari-

zation that supports the standard urged here-in fact,

most of them required no formal proof of polarization

whatsoever.z{ Moi'eovet', last Term, this Court rejected

the argument that racial motivation of voters casting bal-

lots for candidates of theiq own l.ace rnust be established

to prove racially polarized voting. Mississippi' Rerybliemt
Eiecutiue Committee a. Brooks, 

- 
U.S. 

-, 
83 L'Ed'

2l

2d g43."' It should likewise reject the argument in this

case.

IV. CI,AIMS OF VOTE DILUI'ION, LIKE ALL (II'AIITIS

OF AN AI}RIDGMENT OII THE ITRANCHISE, ARI,

ENTITI,DD TO SPDCIAI, JUDI(.'IAL SOLICITUI)E'

Based upon an exhaustive review of the totality of cir-

cumstances involved in the North carolina legislative

elections, the district court unanimously concluded'.un$9r

ti* ,i"trt"ry results test, that the legislative redistrict-

ing abridgi *,u voting rights of blacks' Of particular

.iiniR.oni", the court rletailed the continued taint of dis-

crimination upon all walks of North carolina's civil life.

As the Voting Rights Act antl other pieces of civil rights

legislation make cleat', the political processes may l)ro-

viie critical relief for the victims of past and continuing

discrimination-providing that those channels at'e open to

victimized minorities.

The Voting Rights Act sets out to remove structural

barriers to minority access to political processes in order

t0 facilitate the removal of the vestiges of discrinrination.

The Act corresponds to a heightened stantlard of jutlicial

scrutiny set clown by this Cottrt neally half a century ago:

lPlrejudice against discrete and insular minorities
*uy t" a special condition . . . curtailing the lPera-
tion of thoie political processes ordinarily to b-9 Iu-
lied upon to pr:otect minorities, and [sol may call for

" .o.r".lrontlingly more searching judicial inquiry'

35 Defenrlants, represented by the same counsel as at present'

argued that, "The use 0f a regression analysis which corrclates

oniy racial make_up of the precinct with race of the cnnrlidate

ignores the reality that racc may mask a host of other ex-

pLnamry variables. [Jones o. Citg ol Lubbock, ?30 F'zd 233' 235

tftn Ci.. lS84) (Hissinbotham, J', concurring)'1" Jurisdictional

Statement, Alloitt tt. Br<toles, No. 83-2063, at t2-13' '[his Court

summarily aftirmed the district court's decision in that case antl,

therefore, ..reject[ed] the specific challenges presented in the state-

ment of jursitiiction," Mnndell o- Btntlley,432 U'S' l?3, l?6 ( l9??) '

22 See Engatrom, The Reincomotion of the Intent Standord:

Feileral Judges anil At-Lorge Election Cuses,28 Howard L'J. No' 2
(f 986) (forthcomins).

2t This point is also rcsponsive to nppellants' objections to the

statistical methodology retied upon by the district cottrt, which

was characterized by appellants'own expert witness as a standard

methodology for measuring racial voting polarization. Tr' at 1446'

It simpty does not matter whether "roce is the only explrrnation

for the coruespondence between variables." Appellants' Rricf at 42'

Where differential voting along racial lines exists, for whatever

combination of reasons, the result in the context of structural im-
pediments such as at-large or multimember district electione can

be a dilution of the minority vote which rentlers minorities unable

to elect representatives of their choice. This result is a violation
of the voting Rights Act regardless of the existence or nonexistence

of proof of racial animus on the part of whites who fail to vote

for blacks.

u Sce, e.g., Ferguson o. l{inn Parislt Policlt JurY, 628 F'2d 592

(6th Clr. f9?6) ; Robinson o. Commissioners Courl, 605 F'zd 674

(6th Clr. 19?4) ; Moote o. Lefl'ore Countg Btl. of Dlection Comm's,

602 F.Zd 62f (6th Cir. 1974) i Tumer o. It[cKeithen, 490 F'zd l9l
(6th Cir. 19?3). The orlginal Zimmer factors themselves did not

even include racialty polarized voting. See Zimnter, 486 F'2d at
1805.



?a

Ilnited, States a- Carolene Proilucts Co', 304 U'S' 144' 152

n.a tfgael. Foremost among the rights specified bJ yh?t
iusti.* powell has termed nthe most celebratetl footnote

in constitutional law,"'o is the right to vote' Itl'' citing

Niron a. Hentdun, 2?3 U.S. 536 $927\ and Nioora o'

Co*ilon,286 U.S. ?3 (fgSf ). This Court has repeatedly

.tr"*t.d the neetl for judicial vigilance in claims of vote

dilution or abritlgment] as set forlth in the Catolene Prod-

acts footnote:

Undoubtedly, the right of suffrage is a fundamental
;;tt"t in a'free 

"n]d 
du**ratic society' Especially

since the right to exercise the franchise in a fl'ee and

,ri*p"it.a" manner is preserv-ative of other basic

;tril ;;d pofiticaf rights, any alleged infringment of

the right to vote must be carefully considered and

meticulouslY scrutinized.

Reyrwlils a. Sims,3?? U.S. 633, 661-662 (1964) 1 see also

iii* a. Virginia State Bd'. ol Dlections, 383 U'S' 663

(1966) ; Yick Wo a. Hopkins,118 U'S' 356 (1886)'

The right to vote is listed first in Lhe Carolene Prod-

ucts footnote among those lights that may warrant
,,. . . mol.e exacting judicial scrutiny . . .," since in-

fringements on this right restrict "those political proc-

esseJ which can ordinarily be expected to bring about

repeal of undesirable legislation . '. '" 304 U'S' at 152

n.i. Si*ilurly, Congress has recognized that the right to
vote "includes the right to have the vote eounted at full
value without dilution or disooun| " 

"'S' 
Rep' at 19

(citing Reynold,s, S?? U.S. at 665 n'29)' As this Court

concluied in lqhite a. Regester, lvhere the totality of cir-

cumstances indieate that minority citizens have not been

able to ,,enter into the political process in a reliable and

meaningful manner," court remedies are indispensable to

bi'i;g tie minority community into "the full stream of

29

political life . . ." 412 U.S. at 767,769- In incot'potating

White anrl its pl'ogeny into the statutory t'esults test, Con-

gress repeatcdly emphasized the importance of keeping

[olitical l,r'oc.ss"s equally open to minorities:

Section 2 protects the right of rninority voters to be

i jee from'election practices, procerlures, or methods

that deny them the same opportunity to participate

. in the ptilitical process as other*itizens enjoy' ' ' '

The requirement that the political p-rocesses leading
to nomination and election be 'equally open to par-

iicipation by the group in question' extends beyond

formal or official bars to registering and voting or
maintaining a candirlacY.

S. ltep. at 28, 30.

So long as the paths to political success remain closed,

blacks remain the ,,discrete and insular" minorities of the

Carolene Products footnote to whom a special measure of
judicial solicitude is owal. See Ackerman, Beyorul Caro-

iene Proilucts, g8 Harv. L. Rev. ?13, ?33-3? (f985) (need

for political success for minorities to transcend "1)arialt"
role in political process). conversely, "representation-
reinforcing,, zz judicial intervention is the most e{licacious

manner bi whittr this Coutt may insut'e that the goals of

two decades of statutory civil rights litigat'ion may one

day be met.

3?J. Ely, Demouacy and Distntst, 101-103, 117 (f980)' See olso

id. aD 103:

Malfunction occurs when the process is undeserving of trust'
when (1) the ins nre choking oft the chanrtels of political

changr: to ensure that they will stay in and the outs will stay

out, or (2) thoush no one is actually denied a voice or a vote'

representatives behottlen to an elfective majority arc sys-

tenratically rlisadvantaging some minority out of simple hos-

tilityoraprejudicedrefusaltorecognizec<lmmonalitiesof
interest,antltherel.rydenyingthatminoritytheprotection
affortled other groups by a rcpresentative system'

2e Powetl, 1., Corolene Ptodttcts Reoisiteil, 82 Col'' L' Rev' 1087

(1e82).



' ii^THxfll#f3il,.
Co-Chairmen

NonXIN REDLICH
Trustee

Wru,nu L. R0BINSoN
FneNx B. Prnxnn *

Srr.uet, ISSAcHARoFF
Prtntctr M. IllxneruN

LtwYuRs'Coxrtrtps Fon

Ctvr Rtcnm UxPnn Lrw
l4(X)'EYe' Street, N.lV.
Suite 400
\flashington, D.C. 20006
(202) 871-1212

STXUNI RABINOYts; R'iT,1T$,*:"^,liT"*',,,

CouurtrBs
; 166 East 66 Street
i New York' New York 10022

: (212) 76r-4000

I AttorneYs for Amici Cutioe rt
:: I Counsel of Record

30

CONCLUSION

For the foregoing reasons, amici urge that the judg-

ment of the district court be affirmed'

ResPectfullY submitted,

-- Tl- attorneys fot otnic|gratefully acknowledge the assistance

of Martin Buchansn and Roger Moore' students at' Ilarvard Law
l

School, on the brief.