Pre-Trial Memorandum of Plaintiffs Ralph Gingles, et. al.

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?.

UNITED STATES DISTRTCT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

RALEIGH DIVISION

RALPH GINGLES, et €11. 7

Plaintiffs,
V.

RUFUS L. EDMINSTEN, et dl. r

Defendants.

-and-

ALAN V. PUGH, €t a1.,

Plaintiffs,
v.

JAITIES B. HT,NT, JR., €t El. r

Defendants.

-and-

JOHN J. CAVANAGH, €t a1.,

No. 81-803-CIV-5

No. 81-1066-Clv-s

Plaintiffs,

dl. ,

Defendants.

No. 82-545-CIv-5

ALEX K. BROCK,

PRE-TRIAL MEMORANDUITI OF PLAINTIFFS

Ra1ph Gingles, €t dl., as Plaintiffs in Gingles v.

Edminsten challenge, on behalf of the class of black residents

of the State of North Carolina who are registered to vote,

the 1981 and 1982 apportionments of the North Carolina Assembly

as diluting the voting strength of these black registered

v.

et



voters in violation of Section 2 of the Voting Rights Act of

1965, amended ilune 29, 1982, 42 U.S.C. S 1973 (hereafter

Section 2 or Section 2 of the Voting Rights Act), the Thir-
teenth, Fourteenth and Fifteenth Amendments to the United

States Constitution, and 42 V.S.C. S 1983. The parties have

stipulated that this Court has jurisdiction over this action

pursuant to 42 U.S.C. S 1973j (f) and 28 U.S.C. SS 1331 and

1343(a)(3) and (a)(4), and that a three judge court is
properly convened pursuant to 28 U.S.C. S 2284(a).

-2



II. Plaintiffs wiIl show that the re rtionment of the
North Carolina General Assenbl results in unlawfu

ution o votins strenqth in violation o
Section 2 o e Votinq Richts Act.

The Voting Rights Act applies to claims of discriminatory

redistricting and prohibits redistri'cting plans that dilute
minority voting strength. Congress intended the Voting Rights

Act to be a broad charter against all systems and practices

that diminish black voting strength. When Congress extended

the Voting Rights Act in 1975, the Senate observed:

As registration and voting of minority citizens
increases, other measures may be resorted to
which dilute increasing minoiity voting strength.
Such measures may include ... the adoption of
discriminatory redistricting plans.

S. Rep. No. 94-295, 94th Cong., lst Sess. 16-17 (1975).

The Senate Report accompanying the 1982 extension and
!/

amendment of the Act echoes the same concerns

The initial effort to implement the Voting Rights
Act focused on registration It is not
surprising, therefore, that to many Americans, the
Act is synonymous with achieving ninority registra-
tion. But registration is only the first hurdle
to effective participation in the political process.
As the Supreme Court said in its interpretation of
the Act:

!/ S. Rep. No. 97-417, 97th Cong., 2d Sess. (1982) (hereafter
Senate Report). The Senate Report is reprinted in the United
States Code Cong. and Ad. News, No. 5, JuIy I982r dt 177 ff.
The first 88 pages are the Report of the Committee on the
Judiciary and contain the view of the co-sponsors of the
amendments which passed the Senate by a vote of 85 to 8. 128
Cong. Rec. S. 7139 (daily ed. June 18, 1982't. The bill that
passed the Senate was subsequently adopted without modification
by the House of Representatives. See note 2t infra. There
was no need for a conference committee, and none was ever con-
vened.

6-



Elections, 398
u.s. 544 (1969).

Senate Reportr at 5 (emphasis addded). Accordingly:

[F]or purposes of Section 2, the conclusion
... that 'there were no inhibitions against
Negroes becoming candidatesr and that in fact
Negroes had registered and voted without
hindrancen, would not be dispositive. Section
2, as amended, adopts the functional view of
"political process" rather than the

The right to vote can be
dilution of voting power
an absolute prohibition
baIlot. Allen v. Bd. of

strength. Section 2 reaches any

operate, designedly or otherwise,

affected by a
as well as by

on casting a

"system or practices which

to minimize or cancel out the

formalistic view ..., If]his section without
question is aimed at d es

orm o utionr ds well as outriqht denial
of the right to register or to vote.

Senate Report r Elt 30 n. 120 ( emphasis added ) .

Claims of discriminatory redistricting fall squarely within
the ambit of the Act. fndeed, "[T]he continuing problem with

reapportionment is one of the major concerns of the Voting

Rights Act...n Senate Reportr at 12 n.31.

Section 2 of the Voting Rights Act specifically prohibits
redistricting plans that result in dilution of minority voting

voting strength and political effectiveness of minority groups."

Senate Reportr at 28.

A. The Section 2 Standard

On June 29, 1982, the President signed into law an Act

7-



amending Section 2 Eo provide that voting practices are unlawful

which result in the denial or abridgement of the right to vote

on account of race or color. Act of June 29, 1982, 96 Stat.
U131. Amended Section 2t 42 g.S.C. S 1973, provides:

(a) No voting qualification or prerequisite
to voting or standard, practice, or pro-
cedure shall be imposed or applied by a
State or political subdivision in a manner
which results in a denial or abridgement
of the right of any citizen of the United
States to vote on account of race or co1or,
or in contravention of the guarantees set
forth in Section 4(f) (2) , as provided in
subsection (b).

(b) A violation of subsection (a) is established,
if, based on the totality of the circum-
stances, it is shown that the political
processes leading to nomination or election
in the state or political subdivision are not
equally open to participation by members of a
class of citizens protection by subsection
(a) in that its members have less opportunity
than other members of the electorate to
participate in the political Process and to
elect representatives of their choice. The
extent to which members of a protected class
have been elected to office in the State or
political subdivision, is one "circumstance'
which may be considered, provided that
nothing in this section establishes a right
to have members of a protected class elected
in numbers equal to their proportion in the
population.

2/ The House passed its version of a bill amending and extending
Ehe voting Rights Act of 1965 on October 5, 1981. 127 Cong. Rec.
H. 7011. The Senate thereafter adopted its version of the bill
on June 18, 1982. 728 Cong. Rec. S.7139. Subsequentlyr oll June
23, 1982, the House unanimously adopted the final Senate version
of the Act with the understanding that the effect of the Section
2 amendment was identical under either the original llouse bilI
or the Senate biIl. 128 Cong. Rec. H. 3840.

-8



Prior to the 1982 amendment, Section 2 provided in relevant

part as follows (42 U.S.C. S 1973): '

No voting qualification or prerequisite to voting,
or standard, practice, or procedure shall be imposed
by any State or political subdivision to deny or
abridge the right of any citizen of the United States
to vote on account of race or color * * * .

In amending the statute, Congress deleted the words nto deny or

abridge' and substituted new language so that it now provides

that no voting procedureT etc.7 shall be lmposed or applied "in
a manner which results in a denial or abridgement' of the right

to vote on account of race or color (emphasis addded). Congress

also added an entirely new paragraph (designated subsection (b) )

which provides that a violation of the original paragraph, as

amended (now designated subsection (a) ) is established:

if, based on the totality of circumstances, it is
shown that the political processes leading to nomina-
tion or election in the State or political subdivision
are not equally open to participation by members of a
class of citizens protected by subsection (a) in that
its members have less opportunity than other members
of the electorate to participate in the political
process and to elect representatives of their choice.

Congress used the "results" language in the new subsection

(a) in order to eliminate the need to show discriminatory purpose
3/

to establish a violation of Section 2.- The relevant lnquiry

is whether a voting practice results in an unequal opportunity

See Senate Report, E-gpra, at 16, 1-1 , 27-28, 31-43; and
. at 193 (additional views of Senator Dole); 128 Cong. Rec.
560 (daiIy €d.r June 9,1982) (Kennedy); id. at 55779 (daily
. , June 15, 1982) (Spector); id. at S5960-(daily ed., June 17,
82) (Dole); id. at S6647 (daily ed., June 10, 1982) (Grassley)
. at H3840 (June 23,1982) (Edwards); id. at H3841 (daily ed.,
ne 23, 1982) (Sensenbrenner).

1/
lCl
s6'
ed
19
id
ffi

9-



"to participate * * * and to electrn not whether the inequality
is attributable to a discriminatory nurno"".1/

congress took the 'equarly open to participate" language

from white v. Regester, 412 u.s. 755 (1973), the first case in
which the Supreme Court found a multi-member district system to
be unconstitutional. rn white, the court stated that in
prosecuting a Fourteenth Amendment challenge to a multi-member

district system " It] he plaintiffs I burden is to produce evidence

to support findings that the political processes leading to
nomination and election were not equally open to participation
by the group in question - that its members had less opportunity
than did other residents in the district to participate in the
politicar processes and to elect regislators of their choicer"
412 U.S. at 766. See also Whitconb v. Chavis, suprar 403 U.S.

at 149-150.

!/ The effort to amend section 2 began in the House as H.R.
3112, 97Eh cong., lst sess. (1981). As passed in the House, the
bill included the subsection (a) iresults' language but objections
were raised Ehat it did so in sufficientry sweeping terms to
suggest that a violation of the section courd be estabrished
merely by showing that members of a minority group had not been
elected in numbers equal to the grouprs proportion in the popula-
tion. fn the Senate, compromise languag- wls substituted wnicn
included the "results" language from the House bilr, but removed
any suggestion that a violation could be established on the merefailure to obtain proportionar representation, and added theiopportunity * * * to participate in the political process"
language that now appears in subsection (b). See Senate
Report, supra, at 3-4. This substitute was approved by the
senate after several days of debate. 128 cong. Rec. s6497-s6561(daily ed. June 9,1982)i id. at 56638-56655 (daily ed.2 June10, 1982) t id. at 56714-36T26 (daily ed., June 14r- 1992) i id. at
s6777-s6795Jdaily ed., ,Iune 15, tgbz)t !d. ar SGi14-s6gi6;
s6929-S5934, S5938-S5970, S69ZZ-S7002 (aEfly ed.7 June 1'1,
1982)i id. at 57075-57142 (daily €d., June 18, 1982). The House
accepted the Senate compromise by voice vote several days later.
128 Cong. Rec. H3839-H3846 (daily €d., June 23,1983).

10



As the legislative history in both houses makes clear,

Section 2 was amended primarily in response to the decision of

the Supreme Court in City of ilobi1e v. Bolden, 446 U.S. 55

(1980). See Senate Report at 28i Bouse Report at 29-30. The

amendment of Section 2 was intended by Congress to restore its

original understanding of the standard governing challenges to

discriminatory election practices and procedures which had been

applied by the courts prior to City of Mobile v. Bolden. Both

houses indicated that the statute, when enacted in 1965, did

not require proof of intentional discrimination for a violation,

despite indications to the contrary in the plurality opinion in

@ v. Bolden, supra, 446 U.s. at 51. See House

Report 292 rThe purpose of this amendment to Section 2 is to

restate Congress I earlier intent that violations of the Voting

Rights Act, including Section 2, be established by showing the

discriminatory effect of the challenged practice.' (Footnote

onitted); Senate Report, 172 "The Committee amendment rejecting

a requirement that discrininatory purpose be proved t,o establish

a violation of Section 2 is fully consistent with the original

Iegislative understanding of Section 2 when the Act was passed

in 1965." But, of course, regardless of whether Congress was

correct in its understanding of the proof requirement of White

v. Regester r ot any other pre-Bolden voting rights cases, what

is relevant is that Congress enacted a statute which dispensed

with the requirement of proving any kind of discriminatory

1l



purpose to establish a voting rights violation. Senate Report,

28i House Report, 28-9.

Although the results standard of Section 2 derives from

Congress I understanding of the standard of proof in White v.

Regester, supra, Congress explicitly provided that the test
for a statutory violation was significantly different from

that under the Constitution.
(a) As previously noted, proof of discriminatory

purpose is not required to establish a violation of the

statute, regardless of the standard applicable in constitu-
tional challenges. Cf. City of Mobile v. Bolden, supra,

446 U.S. at 69, quoting Washington v. Davis, 426 U.S. 229, 240

(1976'), that "the invidious quality of a law claimed to be

racially discriminatory must ultimately be traced to a racially
discriminatory purpose. "

(b) Unresponsiveness in not an element of a statutory
violation, whatever its relevance in constitutional cases.

Indeed, Congress provided that the use of responsiveness is to

be avoided, because it is a highly subjective factor which

creates inconsistent results in cases presenting similar facts.
Senate Report 29, n.lt6 ([T]he amendment rejects the ruling in

$!g. v. Buxton and companion cases that unresponsiveness is a

requisite element."); Eouse Report 29, n.94, 30 ("The proposed

amendment avoids highly subjective factors such as

responsiveness of elected officials to the minority community.')

In fact, responsiveness is of no relevance even in rebuttal, if

12



plaintiff chooses not to offer evidence of unresponsiveness.

Senate Report at 29, n.116. Cf. Zimmer v. McKeithen, 485 F.2d

1297 (sth Cir. 1973)(en banc) affrd on other grounds sub nom.

East Carroll Parish Scho1 Board v. Marshall, 424 U.S. 636

11977) (per curiam), referred to in the Senate Report as the

"seminalt case. See Senate Report at 23. In Zimmerr rro proof was

offered that defendants were particularly insensitive to the

interests of black residents, and the absence of a claim of

unresponsiveness did not negate plaintiffs I successful attack on

the at-large elections in East Carroll Parish. Compare Rogers

v. Lodge, _ U.S. _, 102 S.Ct. 3272 (1982) wherein the

Supreme Court expressly disapproved of the lower courtrs holding

that proof of unresponsiveness was an essential element of

a constitutional challenge. See also NAACP v. Gadsden County

School Board, 691 F.2d 978, 983 (llth Cir. 1982) (unresponsive-

ness is not relevant to the question of discriminatory impact).

(c) Foreseeability of conseguences is "quite relevant

evidence of a statutory violation.' Senate Report 27, n.108.

For example, evidence that the North Carolina General Assembly

knew that its reapportionment plans submerged concentrations of

minority voters, and knew that a district of 55t black popula-

tion did not have an effective black voting majority, is

relevant to plaintffs I proof of a statutory violation.
(d) Whatever limitations may exist on the scope of

the constitutional bar against indirect interference with the

right to voteT se€7 ag_, City of Mobile v. Bolden, supra,

13



446 U.S. at 65, n.5 ('t980), Section 2 embodies a functional

view of the political process and prohibits a very broad range

of impediments to minority participation in the electorate.

Senate Report, 30, n.120; House Report, 30. In particular,

the Congress was concerned about, methods of election, such as

at-large elections and the use of multi-member legislative

districts, that tend to

minimize and cancel out minority voting
strength.... Numerous empirical studies
based on data collected from many com-
munities have found a strong link between
at-large elections and lack of minority
representation. House Report, 30.

See Mcl{illan v. Escambia Countv, 688 F.2d 960, 961 n.2 (5th Cir.

1982) , reh. den. 692 F.2d 758 (Section 2 as amended "encompasses

a broader range of impediments to minorities participating in

the political process than those to which the Bolden plurality

suggested the original provision was limited" ); Buchanan v. The

Citv of Jackson and the State of Tennessee, No. 81-5333, slip
op. at 9-10 (6th Cir. June 7, 1983).

(e) Lack of proportionate representation is relevant

to a claim of vote dilution. Section 2 provides that the

extent to which minorities have been elected to office may be

probative of a violation. The legislative history makes clear

that the Court should considerr ds part of plaintiffs' proof,

an historic pattern of a disproportionately low number of

blacks being elected to the legislative body. llouse Report at

30:

14



the fact that members of a racial or lan-
guage minority group have not been elected
in numbers equal to the group's proportion
of the population does not, in itself,
constitute a violation of the section al-
though such proof, along with objective
factors, would be highly relevant.

Moreover, the sporadic election of a few minority candidates

does not_vitiate plaintiffs' proof. Senate Report at 29,

n.115, citing with approval Zimmer v. McKeithen, supra.

.. . the success of black candidates at the
polls ... mightr on occasion, be
attributable to the work of politicians,
who, apprehending that the support of a
black candidate would be politically
expedient, campaign to insure his election.
Or such success might be attributable to
political support motivated by different
considerations -- namely that 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. 485 F.2d at 1307.

Thus, the statute incorporates prior case law that plaintiffs

may prove dilution of black voting strength despite the fact

that some black candidates enjoy nominal success at the poIls.

See, White v. Regester, 412 U.S. at 766i NAACP v. Gadsden

Countv School Board, .W., 691 F.2d at 983; Kirksey v. Board

of Supervisors, 554 F.2d 139, 143 (5th Cir. 1977).

B. Elements of Proof Under Section 2

The legislative history provides that to establish a

Section 2 violation plaintiffs can show a variety of factors,

15



including those derived from

the Supreme Court in White v.

in subsequent decisions such

as follows:

the analytical frarnework used

Regesterr and as articulated
by

as Zimmer v. McKeithen, *.89,

(1

nation

extent of any history of official discrimi-

state or political subdivision that touched

the rights of the members of the minority group to register,

to voter oE otherwise to participate in the democratic

Process i

(2) The extent to which voting in the elections of

the state or political subdivision is racially polarized;

(3) The extent to which the state or political sub-

division has used unusually large election districts,

majority vote requirements, anti-single shot provisions,

or other voting practices or procedures that may enhance

the opportuntiy for discrimination against a minority group;

(4) If there is a candidate slating process, whether

the members of the minority group have access to that pro-

cess i

(5) The extent to which members of the minority group

in the state or political subdivision bear the effects of

discrimination in such areas as education, employment and

health, which hinder their ability to participate effec-

tively in the political processi

(5) Whether political campaigns have been character-

ized by overt or subtle racial appeals;

) The

in the

15



(7) Ihe extent to which members of the minority group

have been elected to public office in the jurisdiction.

Senate Report, 28-9. These factors are the most important ones in
evaluating whether or not black voters "have less opportunity than

other members of the electorate to participate in the political
process, and to elect representatives of their choicero within the

meaning of Section 2.

There is no requirement under the statute that any particular
number or aggregate of factors, however, be proved or that they

point one way or the other. "The courts ordinarily have not used

these factors, nor does the committee intend them to be usedr ds a

mechanical rpoint countingr device." Senate Report, 29, n. 118.

Instead, application of Section 2 requires the trial court's over-

all judgment, based on a totality of the relevant facts and circum-

stances of the particular case, whether minority voters enjoy

the same opportunity as white voters to participate in the

political process and whether minority voters have an opportunity

equal to that of white voters to elect representatives of their
choice.

fn amending Section 2, Congress thus intended to establish a

reliable and objective standard for adjudicating voting rights
violations. It indicated that in determining an overall nresult'

of discrimination, based on the totality of circumstances,

certain types of objective, verifiable evidence should be

emphasized (such as an official history of discrimination in
voting, racial bloc voting, use of a majority vote requirement

17



or other practices, such as multi-member legislative districts,
known to enhance the opportunity for discrimination, the extent

of election of minority candidates over an extended period of

time and the present effects of discrimination in such areas as

education, employment and health). Other types of subjective

and impressionistic evidence were not regarded as relevant or

weighty (such as unresponsiveness), and no inference of discrimi-
natory purpose -- no matter how circumstantial is required.

Recent cases applying the analysis of amended Section 2 to
strike down at-large elections and other dilutive procedures

include Jones v. Lubbock, C.A. No. 5-76-34 (N.D. Tex., .Tan. 20,

1983), slip op., 14 (iUnder the findings of the court with

respect to the factors which the Congress deened to have been

relevant to the deternination of this question, and under the

totality of all of the circumstances and evidence in this case,

it is inescapable that the at-large system in Lubbock abridges

and dilutes minorities I opportunities to elect members of their
own choice. " ) i Thomasville Branch of NAACP v. Thomas Countv,

Georgiar Civ. No.75-34-THOM (M.D. Ga. Jan.26,1983); Rvbicki

v. The State Board of ELections of the State of Illinois, €t

dl., No. 81-C-6030 (N.D. I1I. Jan. 20r 1983); Taylor v. Havwood

Countv, Tenn., 544 F. Supp. 1122, 1134-35 (W.D. Tenn. 1982)

(applying the Section 2 factors and granting a preliminary

injunction against use of at-large voting for the Haywood

County Highway Commissioners) .

18



Plaintiffs I Proof

Plaintiffs intend to prove that the challenged legisla-

tive reapportionment of the North Carolina General Assembly has,

under the totality of circumstances in this case, a racially

discriminatory result in violation of Section 2. By presenting

evidence consistent with the factors identified in the

Senate Report, Plaintiffs will show that the use by the North

Carolina General Assembly of multi-member legislative districts

in metropolitan areas with large concentrations of black voters

unlawfully dilutes the voting strength of those voters.

(a) Plaintiffs will show that there has been a long

history of official discrimination against blacks in North

Carolina involving registration and voting including the use of

poll taxesr a numbered seat provision and literacy tests.

plaintiffs' evidence will show that the historic disfranchise-

ment of black voters has continued to inhibit black people from

re-entering the political Process, and that past barriers have

a lingering discriminatory impact on participation by black

voters.

The existence of an extensive history of racial discrimina-

tion has always been considered relevant to a claim of unlawful

vote dilution. The courts have recognized the lasting impact of

historic policies of racial discrimination, and have, in fact,

placed the burden on defendants to show that the residual effects

of past patterns have been dissipated. See e.9., Kirksey v.

19



Board of Supervisors of Hinds Countv, supra at

ltcKeithen, ggge., at 1306; White v. Regester,

Rogers v. Lodge, 73 L.Ed.2d at 1017, 1024.

146i Zimmer v.

supra at 766i

(b) Plaintiffs will show that voting in North Carolina is

racially polarized. Plaintiffsr evidence will further show

that on the basis of a computer assisted analysis of all

legislative races in the past six years in wtricfr a black

candidate ran from a multi-member district at issue in this
'9/case, the polarization on the basis of race was pervasive.

(c) The parties have stipulated that the State of North

Carolina employs a majority vote requirement in primary elections.

The evidence will show that this law was enacted in the same

legislative session where the General Assembly enacted a statute

permitting local political parties to conduct all-white primaries,

and that it is well known that a majority vote run-off require-

ment enhances the opportunity for discrimination against minority
9/voters.

1/ The courts have recognized that in a racially polarized
electorate, there tends to be submergence and dilution of the
voting strength of the minority voters, especially where the
jurisdiction uses multi-member or at-large election districts and
a majority vote run-off requirement. See_, AL. , City of Port
Arthur v. united states, 14 L.Ed.2d 3q 3T(196mTte<i-
ffiF orqaffiarev, 430 u.s. 144, 166-67 (1W

"$lhere it occurs, voting for or against a candidate
because of his race is an unfortunate Pract,ice.
But it is not rare; and in any district where it
regularly happens, it is unlikely that any can-
didate will be elected who is a member of the
race that is in the minority in that district.n

|-/W-r g_f.., Rogers v. Lodge, 73 L.Ed.2d at 1023t 1024; City
of Port Arthur v. United States, 103 S.Ct. 530 at 535; Whltq

". 
McKeithenr 4S5 F.2f

at 1306.

-20



anti-single shot voting law in many county and municipal elections.
These practices continued until declared unconstitutlonal by the

federal courts. These practices are identified in the Senate and

House Reports as enhancing the opportunity for discrimination

against black voters. Senate Report at 29i House Report at 18.

Plaintiffs will produce evidence that other practices stilI in use

by the State of North Carolina also enhance the opportunity for
discrimination. Such practices include the use of election

districts that are unusually large and the use of multi-member

legislative districts. The large size of some of the multi-
member districts makes it particularly difficult for blacks to

campaign effectively because of the increased costs of running

for office. Senate Report at 29i see Rogers v. Lodge, supra,

102 S.Ct. at 3280-8'l (nThe court concluded, as a matter of law,

that the size of the county tends to impair the access of blacks

to the political process.") See Connor v. Johnson. 402 U.S.

690t 692 (1971 ) (preference for single member districts in

"Iarge" districts); House Report at 18: 'The Committee heard

numerous examples of how at-large elections are one of the

most effective methods of diluting minority strength in the

covered jurisdictions".

(d) Plaintiffs do not contend that there is a formal

candidate slating process in North Carolina. Plaintiffs will
show that in certain parts of North Carolina there is an informal

slating process in which members of the minority group do not

participate.

21



(e) The evidence will show that members of the
pi,1'1orit! group still bear the effects of discrimination in
education, employment and health and therefore their ability to

7/participate in the poritical process is hindered.- Much of
the data showing a disparity in income, educational achievement,

health and housing is stipulated.
(f) The evidence will show the historic use of

racial appears in electorar campaigns starting in lggg and

the continuing and persistent use of raciar telegraphing in
election campaigns from 197G-l983.

(g) The evidence will show that blacks have not been

elected to public office in the state of North carolina in
numbers even approaching their proportion of the population.

Plaintiffs wish to make it crear that we do not contend that
blacks have a right to proportional representation in the North

Carolina General Assembly or that evidence of under representation
is conclusive proof of a section 2 violation. we will simply
show, consistent with the statute and regisrative history, that
there is sti11 under-representation of blacks in the state
legislature, and that this has been true throughout this century.
For exampre, prior to 1969r Do black was elected to either the

1/ Plaintiffs are not required to show a causal nexus betweentheir disproportionate educational Ieve1, income level and livingconditions and their depressed level of participation in the
pglitical process. senate Report at 29, cLting-white v. Regester,
412 u.s. at 768i Kirksey v. Board of supervisoislFjl F.2AE-'
145:

"fnequality of access
existence of economic

is an inference which flows from the
and educational inequalities. "

-22



State Senate or State House. Since 1969, although blacks con-

stitute more than 25t of the population of the challenged

districts, only 20 out of 320 legislators in the General

Assembly elected from those districts have been b1ack. See

Stipulation of Parties, numbers 95 and 96.

(h) Evidence of the tenuousness of the policy

underlying the staters use of large multi-member districts has

probative value as part of plaintiffsr evidence. Senate

Report, 29. The tenuousness of the staters policy is not,

however, identified in the legislative history as a typical
factor nor even particularly important to establish a violation.
In this case, although our proof does not depend on it, plain-
tiffs are prepared to present evidence, in anticipation of the

defendantsr case, that the policy underlying the stateis use of

large multi-member districts and not dividing counties is, in
fact, tenuous. For example, plaintiffs are prepared to show

that the legislature ignored its own previously adopted criteria
for reapportionment, relied on outdated considerations regarding

the nature of business conducted by the legislature and the

legitimate needs of county government, and allowed the protec-

tion of white incumbents and an anti-Republican animus to

dominate the process. Plaintiffs contend that where political

considerations are allowed to dominate neutral redistricting
objectives and constitutional imperatives, a "politically
balanced" plan that nevertheless consciously minimizes minority
voting strength cannot be sustained. See_ e.9., Perkins v. Citv_

23



of West Helena, Ark., 575 F.2d 201, 216-17 (8th Cir. 1982)i

Robinson v. Commissioners Court, 505 F.2d 674 (5th Cir. 1974't.

Plaintiffs further contend that the failure to divide

counties is not excused by the North Carolina Constitution.

Plaintiffs will present evidence that according to the record

of the legislative proceedings, the General Assembly did not

consider the North Carolina Constitutionrs provisions binding

on it after the United States Attorney General interposed a

Section 5 objection. Finally, even if the General Assembly had

relied on the provision of the North Carolina Constitution, the

supremacy clause of the United States Constitution, Article VI,

Section 2, requires that Section 2 of the Voting Rights Act

supersede the provisions of state law.

The above discussion of plaintiffsr proof focuses on show-

ing how the challenged plans result in dilution of minority

voting strength through the use of multi-member districts. In

addition, plaintiffs will show that the challenged reapportion-

ment plans result in dilution of minority voting strength by

fracturing concentrations of black voters. Fracturing is a

classic device for diluting the voting strength of a geographi-

cally cohesive black community. ilThe most crucial and precise

instrument of the denial of the black minority's equal access

to political participation, however, remains the gerrymander of

precinct lines so as to fragment what could otherwise be a co-

hesive voting bloc. i Kirksey v Board of Supervisors of Hinds

County, -W,, 554 F.2d at 149. Plaintiffs will show that in

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Senate District 2, the General Assembly fractured the voting

strength of black voters, and that under the totality of

circumstances, this resulted in a violation of Section 2.

The defendants appear to take the view that simply because

blacks can register and vote in North Carolina, and have

recently been elected to a few offices in the state, there can

be no dilution of minority voting strength. Consequently, they

virtually ignore the rich evidence plaintiffs will present of

racial bloc voting, af subtle racial appeals in elections, the

depressed socio-economic status of blacksr and the continuing

effects of past discrimination and the other factors indicated

by Congress which show that an election practice results in the

denial or abridgment of the equal right to vote. This limited
view has no basis in the law, the legislatlve history or prior

cases. Congress specifically rejected the view urged by

defendants when it amended and extended the Voting Rights Act

in 1982. Senate Report , 30, n. 1 20.

The discriminatory results I Eest focuses on whether the

political processr ds it has worked, and as it now promises

to work, has made it equally possible for minority voters to
participate in the political process and elect representatives of

their choice to office. The factors listed in the legislative
history as probative of this inquiry, which plaintiffs will
prove at trial, demonstrate that the 1981 and 1982 legislative
reapportionments of the North Carolina General Assembly result in

the denial and abridgment of the right of blacks to vote on

25



account of race in violation of Section 2 of the Voting Rigths

Act.

II. Plaintiffs will show that the 1981 and 1982 I islative
reapportionments of the North Caro na neral Assembl
ntentionall scriminate ainst blac voters
n the state

Although not necessary to plaintiffs' claims under Section

2 of the Voting Rights Act, evidence that defendantrs redistrict-

ing plan purposefully dilutes the voting strength of blacks

supports those claims. As explained in the Report of the

Senate Commitee on the Judiciary, 8t 27 z

The amendment to the language of Section 2 is designed
to make clear that plaintiffs need not provide a
discrirninatory purpose in the adoption or maintenance
of the challenged system or practice in order to
establish a violation. Plaintiffs must either prove
such intentr oE, alternatively, must show that the
challenged system or practice, in the context of all
the circumstances in the jurisdiction in question,
results in minorities being denied equal access to the
political process.

Evidence that the redistricting Plan was motivated, under

the totality of circumstances, by an intention to minimize or

dilute black voting strength is also an element of plaintiffsr

claims under the Fourteenth Amendment. R,ggg. v. Lodge, 102

s.ct. 3272, 3275-76 ( 1982).

The Supreme Court has articulated two principles to guide

the lower courts in determining the existence of discriminatory

purpose. The first principle is that the plaintiffs need not

prove that the challenged redistricting plan was motivated

solely by a discriminatory purpose. Once it has been shown

that discriminatory considerations were one factor, plaintiffs

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have established their prima facie case. The burden then

shifts to the defendants to establist ,that precisely the same

district boundaries would have been drawn even in the absence

of discrininatory considerations. Village of Arlington

Heights v. Metropolitan Eousing Development Corp., 429 U.S.

252, 265-55, 270-71 n.21 (1977). According to the court in
Rybicki v. State Board of Elections, No. 81 C. 6030 at 57-62

(N.D. Ilt. Jan. 12t 19821 , the burden this places on the

defendant is a very heavy one.

The second principle is that discriminatory intent can be

proven by circumstantial evidence:

[D] iscriminatory intent need not be proven by
direct evidence. 'Necessarily, an invidious
discriminatory purpose may often be inferred from
the totality of the relevant facts, including the
fact, if it is true, that the law bears more
heavily on one race than another. "

Rogers v. Lodge, supra at 3276 (1982) | quoting Washington

v. Davis, 426 U.S. 229, 242 (1976). fn Rogers, the Supreme

Court rejected the pluralityrs suggestion in Mobile that
plaintiffs must prove through direct evidence that a dis-
criminatory intent was the motivating factor of the decision-

makers. Buchanan v. The Citv of Jackson, et al., No. 51-5333,

6th Cir. (June'l , 1983) slip opinion at 61 8. Copy attached.

This principle has been squarely accepted by the Congress

as explained in the legislative history to Ehe 1982 Section 2

amendments:

Plaintiff may establish discriminatory intent for
purposes of this Section lSection 21, through

27



direct or indirect circumstantial evidence,
including the normaL inferences to be drawn from
the foreseeability of defendant's actions whichiis one type of quite relevant evidence of ra-
cially discriminatory purpose.' Davton Bd.
of Educ. v. Brinkman, 443 U.S. 526;-536- n.9 (1979).

senate Reportr €lt 27 n.108. consequently, discerning dis-
criminatory purpose 'demands a sensitive inquiry into such

circumstantiar and direct evidence of intent as may be avail-
able.' Arlington lleights, supra 429 U.S. at 266.

The Fifth circuit recently summarized the evidentiary
sources alluded to in Arlington Heights which are useful for
assessing the existence of purposefur discrimination as

follows:
( 1 ) the historical background of the action,
particularly if a series of actions have
been taken for invidious purposes i (2) the
specific sequence of events leading up to
the challenged action, (3) any procedural
departures from the normal procedural
sequence,. (4 ) any substantive departure from
normal procedure, i.€.7 whether factors
normally considered important by the
decision-maker strongly favor a decision
contrary to the one reached; and (5) the
legislative history, especially where
contemporary statements by members of the
decisionmaking body exist.

McMillan v. Escambia countv, 639 F.2d 1239r 1243 (5th cir. 1gg1).

Defendantsr course of conduct during the redistricting
process strongly supports the inference that the legislature
fractured the black population in Northeastern Senate District
2 and minimized their voting strength intentionally. The

defendants enacted the redistricting plan in a manner calculated

28



to minimize the input of the black community. The Supreme

Court has recognized that evidence of purposeful discrimination

can be found in "the specific sequence of events leading up to

the challenged decision.' Arlington Heights, sgpra,, 429 U.S.

at 267.

Plaintiffs will present other evidence of the discriminatory

purpose behind the creation of Senate District 2. Plaintiffs

will show that the General Assembly drew a 55t black district,

knowing that black voters will be unable to elect representa-

tives of their choice from a district that is less than 55t
9/bIack.

Plaintiffs will show that by drawing a 55t black district

in Senate District 2, the General Assembly fractured a concen-

tration of black voters in order to minimize their voting

strength. Courts have found evidence of fracturing to be

probative of racial purpose. As the three judge court in D.C.

concluded in Busbee v. Smith, 549 F. Supp. 494,517 (D.D.C. 19821,

aff rd. U.S. , 103 S.Ct. 809 (1983):

9-/ The 65t figure is a general guideline which has been used
by the Department of Justice, reapportionment experts and the
courts as a measure of the minority population in a district
needed for minority voters to have a meaningful opportunity to
elect a candidate of their choice. See Uississippi v. United
States, 490 F. Supp. 569 (D.D.c. 197il EfT-U.s.JIfm-
(1980). The 65t guideline, which the Supreme Court char-
acterized as "reasonable' in United Jew!@. v.
Carey, 430 U.S.144, 164 (1977 younger
metliEn population age and the lower voter registration and
turnout of minority citizens. Plaintiffs will show that the
General Assembly was aware of the significance of this 65t
f igure.

29



fn this case, the state fragnented the large and
contiguous black population that exists in the
metropolitan area of Atlanta by splitting that
population between two Congressional districts, thus
minimizing the possibility of electing a black to
Congress in the Fifth Congressional District. The
inpact of this state action is probative of racial
Purpose.

A discriminatory purpose such as to render the challenged

plans invalid may be inferred from the totality of relevant

facts, including a history of racial discrimination, a racially
polarized electorate, the use of a majority vote requirement,

the deviation from substantive reapportionment criteria and the

submergence and fracturing of concentrations of black voters

with a disproportionately adverse impact on members of the

minority voting community. EggE v. Lodge, supra, 73 L.Ed.2d

at 1017, 1024i Busbee v. Smith, -W.. See State of Mississippi

v. U.S. , 490 F. Supp. 569 (D.D.C. 1979 ) aff td. 444 U.S. 1050

(1980); City of Port Arthur Texas v. United States, Civil

Action No. 80-0648, Et 58 (D.D.C. June 12, 1981), aff rd

u.s. _t 103 s.ct. 530 (1982).

CONCLUSION

In the seminal case of Zimmer v. ltcKeithen, 485 F.2d 1297

( 5th Cir. 1973) | Judge Gewin recalled the words of Aristotle as

follows:

If liberty and equalityr €ls is thought by
somer dE€ chiefly to be founded in democracy,
they will be best attained when all persons
alike share in the government to the utmost.

Politics, Book II,
cited at 485 F.2d at 1300.

-30



As with the Ziryner case, this Court is being called upon

to consider the extent to which the Constitution of the United

States and the Voting Rights Act of 1 965 compel adherence to

the principle of 'a11 persons alike' sharing in government 'to
the utmost. n As a consequence of the 1982 amendments to the

Voting Rights Act the task of this Court has been made easier.

rn Section 2t there is now a clear basis for enjoining any

election practices or procedures that 'are not equally oPen to

participation" by black voters. Plaintiffs will prove at trial

that under the challenged 1981 and 1982 reapportionment of the

North Carolina General Assenbly, they have "Iess opportunity

than other members of the electorate to participate in the

political process and to elect representatives of their choice."

Plaintiffs contend that the 1981 and 1982 legislative

reapportionments of the North Carolina General Assembly should

be enjoined because they have a discriminatory result in

violation of Section 2. Plaintiffs will also show that the

chatlenged plans were enacted with a discriminatory PurPose

in violation of Section 2 and the United States Constitution.

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Dated: iluly , 1983

Respectf u11y submitted,

J. LeVONNE CHAII{BERS
LESLIE iI. WINNER

Chambers, Ferguson, Watt,
Wallas, Adkins & Fullerr P.A.
Suite 730 East fndependence Plaza
951 South Independence Boulevard
Charlotte, North Carolina 28202
704/ 375-8451

JACK GREENBERG
I.ANI GUTNIER

Suite 2030
10 Columbus Circle
New York, New York 10019

ATTORNEYS E'OR PLAINTIFFS

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