Answers to Defendants First Set of Interrogatories; North Carolina District Population Statistics

    ' no.83-1958L: r'

IN 8EE

SUPREITE COURT OF TtsE T'NITED STATES

October tem, I 98{
!!-ra-a!tltfat-f l-!rlaratlra----l

IACY E. THORNBURG, Qt tl.r

V.

RALPH GINGLEST $ 9!.,
r ADpeIIees.r ...11-r ;;;.,:;;

Distrlct Court for the Eastern
Dlstrict .of North Carollna

lrta!-!ra!-Sratrr-a-r3-tr-r3f !rr=l-ttf tt-I

BRIEF FOR APPELLEES

tatllta ttr!-lr-r t=a-t-a r-r--! rrlal-!!--!

JI'LTOS L. CEAI{BERIi
ERIC SCENAPPER
C. IANI GT'INIER t

NAACP Legal Defense
and Educational Fund, Inc.
t6Eh Floor
99 Eudson SE,rcet
New Yorkr t{en York 10013

. (2121 219-1900

T.ESLIE J. WINNER
Perguson, Watt, l{a11as,
t.Adkins, P.A.
951 S. Independence tslvd.

I Charlotte, North Carollna 28202
I ( 704 ) 375-845 1

t

I ATT.R.\EYS FoR APPELLEES, Ralph
Gingles, g! g!.
rCounsel of Record



gUESTroNs PRESENTED

( 1 ) Does section 2 of the Voting

Right,s Act require Proof that

minoritY voters are tot'ally

excluded from t'he Political
process?

(2) Does the election of a minoritY

candidat,e conclusively establish

the existence of equal electoral

oPPorEunitY?

(3) Did the district court hold that

section 2 requires either

ProPort,iona1 re.oresentation or

guaranteed minority electoral

success?

1-



la \(-

(4) Did the dist,rict court cor-

rectly evaluate the evldence of

raclallY Polarized vottng?

(5) Was the distrtct courtrs flnding

of unequal electoral oPPort,unitY

cIearIY erroneous'?

t't



rAglE OF CONTENTS

Eage

Qugstions Presentgd """'o"'"' i

Tab1e of Authoritigs ...""""" vi

Statgment of thg Case ...'""'''' 1

Findings of the District Court .. ' 7

Summary of Argument '"'"'"""' 15

Argument,

I. Section 2 Provides
llinority voeers an Egual
OPPortunitY to Elect
nLPresentalives of their
Ch6icg """""..""' 19

A. The Legislative HistorY of
the 1982 Amendment of
Section 2..."""""' 21

B. Equal Electoral OPPor-
t,unitY is t,he StaCutory
Standlrd ....o.."""" 44

C. The Election of Some
tlinority Candidates Does
Not Conclusive1Y Establish
t,he Existence of Equal
Electoral OPPor-
tunitY ......."""" 50

Lrl



II.

III.

IV.

Page

The District Court Re-
quired Neither ProPortional
Represent,at,ion Nor Guaran-
teed l.tinority Political
Success ...............oo.. 64

The District Court, APP1ied
the Correct Standards In
Evaluating the Evidence of
Polarized Voting .. i... .... 70

A. Summary of the District
Courtrs Findings 73

B. The ExtenE of Racial
Polarization was Sig-
nificant, Even Where
Some Blacks Won .. o o... 76

Appellees were not Re-
quired to Prove that White
Voters I Failure to Vote
for B1ack Candidates was
Racially tllotivated .... 81

The Dist,rict Court I s
Finding of the ExEent of
RacialIy Polarized
Voting is not CIearlY
Erroneous ............. 88

The District Court Finding
of Unequal Electoral OPPor-
tunity Was Not CIearlY
ErrOngous .................

The Applicabilit,y of
RuIg 52............o.

iv

c.

D.

95

95
A.



B.

c.

D.

E.

Page
Evidence of Prior
Vot,ing Discrimi-
natioir ........"""' 102

Evidence of Economic
and Educational Dis-
advantaggs .....'t".. 107

Evidence of Racial
Appeals bY White
Candidatgs ..'"...."

Evidence of Po1ar-
ized Voting .""''"'

F. The Majori'tY Vote
Bequirement .....""'

G. Evidence Regarding
Electoral Success of
HinoritY Candi-
datgs ....."""""'

H. The ResPonsiveness
ISSU€ . . . . . ' ' ' ' ' ' ' ' ' ' '

I. Tenuousness of the
State PolicY for l'lulti-
member Districts .. o. '

Conclusion ...''t't''''t'''''''''''''

113

118

r18

121

130

131

135



TABLE OF AUTHORITIES

Cases

Alyeska Pipeline Service v' Wilder-
ness SocietY , 421 U'S'
240 (1975) """""""""

Anderson v. CiCY of Bessemer
CitV, U. S. 

-, 
84

;:;a'.2r5\a-irffii .." " 15'98'99

Anderson v. t'tills, 664 F'2d""---400 (6t,h-ai;. rggll .."""' 84

Bose CorP. v. Consumers-Union'
g0 L.Ed .za- ioi ( 1 984) . . .. . o. 98

Buchanall v. Cit,Y of Jackson'-iog F.2d 1056 (6th cir'
1983) """""""".."'o' 96

City of Port' Arthur v' U'S' 7

517 F- SuPP. 98i, affirmed AF r^^
45g U.S. 159 (1982) ...."" '5)'tzv

City of Rome v. U.S' , 445 U'S'
156 (1980) """""".. 72'99t120

Collins v. CitY of Norfolk,
768 F.2d 572 (4th Cir'
JulY 22r 1985) """"""'o 96

Page

100

-vl



Page

Cases

Connecticut, v. Teal | 457
U.S. 440 (1982) oo""o"""

Cross v. Baxter, 604 ?"2d 875
(5th Cir. 1979) """""c"

David v. Garrison, 553 F"2d 923
(5th Cir' 1977) """"""o

Dove v. lrloore, 539 F'2d 1152
(8th Cir' 1976) """"""'

Ernst and Ernst v. Hochfelder,
425 U.s. 185 (1976) -...o'o..

Garcia v. United Statesl U'S"-- 105 S.Ct. 479 (1E-64') ...'

Gaston CountY v. United States'
395 U.s. 285 (1969) ....'o"'

GiLbert v. St'errett, 508 F ' 2d
1389 (5t,h Cir. 1975) ""o"'

HarPer & Row, Publisher v'
Nation, U.s. -? 85 L'Ed'2d
588 ( 1985J-- -. -..:..... o " '

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

Hendrix v. JosePh, 559 F'2d
1255 (5th Cir. 1977) "o""'

Hunter v. Underwood, ..--_ U'S' 
-l85 r,.na.za 222 (T865) ...:'

vii

63

56

110

110

50

36

107

96

98

110

96

99



Page
Cases

Jones v. City of Lubbock, 727
F.2d 364 ( 5t,h Cir. 1 984 ) ;
rehrg en banc denied, 730
F.2d 233 (1984) ......... 88r95r130

Kirksey v. Bd. of SuPervisors | 554
F.2d 139 (5t,h Cir. 1977 )... 56

Kirksey v. City of Jacksont 699
F.2d 317 ( sth Cir. 1 982) . . .. 84

Lodge v. Buxton, Civ. No. 176'
55 (S.D. Ga. 10/26/781 , eff-'g
Rogers v. Lodge, 458 U.S:-
513 (1982) ..o..............' 80

Major v. Treen, 574 F. SUPP. 325
(8.D. La. '1983) (three judge
COUft) .............t........ 36r71 r78

McCarty v. llenson , 7 49 F.2d
1 1 34 ( 5th Cir. 1 984) ' aff'd
753 F.2d. 879 (5tn Cirl-
(1985) .....................' 96

McCleskey v. Zant, 580 F. SuPP.
380 (N.D. Ga, 1984), affrd 753

F.2d 877 ( 5th Cir. 1985r-. . . 86

tlcGill v. Gadsden County
Conmission, 535 F.2d 277
(5t,h Cir. 1976) ............o 96

Mctlillan v. Escambia County, 748
F.2d 1037 (11th Cir. 1984) .. 108,'l 30

l,letropolitan Edison Co. v. PANE,
450 U.S. 765 (1983)

viii-
98



Cases

Paqe

5gr6g

ttississiPPi RePublican Execu-
tivL-Committee v' Brooks'

u-s. , 105 S'Ct'
116 iiggel-....c.."cc.."" 85

Mobile v. Bolden, 446 U'S' 55
(1980) ".{""'o""' "'22123'24'30'82

NAACP v. Gadsden CountY School
Board , 691 F.2d 978 ( 1 lt'h
Cir. 1982) """""""":' 80

Nevett v. Sides, 57 1 F'2d 209
(1978)'''o''"o'o'"''cc"''

Parnell v. RaPidas Parish School-Board, 
563 F.2d 180 (5th

Cir. 1977) """t"""""'
Perkins v. CitY of west llelena'- ols F.2d iot (8th cir. 1982) r

affrd mem. 459 U'S' 801

TfifgZt:'''''''''''''''''''''
Rogers v. Lodge, 458 U'S' 613

(1982) ...-.--..-. . 79r80,85',99',130

South Alameda SPanish SPeaking
Org. v. CitY of -r]1i91
Ci[Y | 424 F.2d 291 (9th
Cir. 1970)".."....""""' 84

Strickland v. Washington, U'S'-'---r-eo L.Ed.2d 674 (TyE4) " 98

UniEed Jewish Organizat'ions v'
CareY, 403 U.S. 144
(1977) .-.-.---...."''"'"' 68

96

85

lx



Page
Cases

U.S. V. Bd. of SuPervisors of
ForresE CountY, 57 1 F.2d
951 (5th Cir. 1978) ......... 56

U.S. v. Carolene Products Co.7
304 U.S. 144 (1938) ......... 71

U.S. v. Dallas CountY Commission,
739 F.2d 1529 (11th Cir.

.1984) ............... ."."' 97

U.S. v. Executive Committee of
Democratic PartY of Greene
CountY, Ala. 254 F. SUPP.
543 (S.D. AIa. 1966) ........ 84r85

U.S. v. Marengo CountY Commission,
. 731 F.2d 1 545 ( 1 1 th Cir.

1984) ............o.... 56r57 r85196,
108,130

Velasquez v. City of Abilene,
725 F.2d 1017 (Sth Cir.
1980) ...................."' 56196

Wallace v. House, 515 F.2d 619
(Sth Cir. 1975) ........... 56r59

Whitcomb v. Chavis, 403 U.S.
124 (1971) .......o. o... 129

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

Z immer v. [lcKeit,hen, 48 5 F.2d 1297
(Sth Cir. 1973) (en banc)r
aff'd sub nom East Carroll
tr[iT5n-Sdh66f Board v. tularshall,
424 U.S. 536 (1976 ) . . . . 30r 55 r58 196

x



Page

OTHER AUTHORITIES

stat,utes

SecEion 5, Vot,ing Rights Act of
1965, 42 U-S.C.
51973c '"'".."'"'' 3'4'22'133

Voting Rights Act Amendments of
igez, section 2|
96 Stat- 131,'42 g'S'C'
S1973 "ttt"t"""""'c'

Federal Rules of CiviI Procedure'
Rule 52(a) ""..o""' 67'98'100'101

Dass 1m*

23

23

33 , 34, 35

Dass rm

pass im

Constitut,iona! Provisions i

Fourteenth and Fifteenth
Amgndmgnts ...""..o""" DASSlM

Ilouse and Senate B-ills

ll. R. 31 98 , 97th Con! . r 1 st Sess ' '
52 . . ' ' ' ' ' t ' ' ' t " ' t ' ' " ' ' '

H.R. 3112, 97Eh Cong., lst
Sess., 5201 """""""

Senate Bill S. 1992."....""

Conqressional Reports

House RePort No- 97-227, 97th
Coni. , 1st Sess. ( 1 981 )

Senate RePort No. 97-417, 97th
Cong. , 2d Sess. (1982) "'

xi



Page

Consressional Hearings

Hearings before the Subcommittee
oi Cirit and Constitutional
Rights of t,he House JudiciarY
Coirmittee, 97th Cong ' , 1st Sess
(1981) ..""""""""" 23

Hearings before the Subcom-
mittee on the Constitution
of the Senate JudiciarY
Commit,teebn S. 53, 97th Cong ' ,
2d Sess. ( 1982) ..... " o ' 28r34t35'41 '42r43

Conqressional Record

128 Cong. Rec. (dailY ed. Oct'
2, 1981) .""""..o"" ' 25'26r29

128 Cong. Rec. (dai1Y ed.7 Oct'
5, 1981) ...'o"o"""" 26'27r29

128 Cong. Rec. (dailY ed. Oct'
15; 1981) ............... 29

128 Cong. Rec. (dailY ed. June 9,
1982) ..."..""""' 35'37t40t47

48 r54 r82

128 Cong. Ree. (dai1y ed. June 10,
19-82) ....."""""""' 35'37

128 Cong. Rec. (dailY ed. June 15,
19-82) ...''o"""".."' 29'34'37'82

128 Cong. Rec. (daily ed. June 16,
1982) ...""""o"r""o 55

x11



128 Cong. Rec. (dailY ed' June
1982) ""..'.."..o"''

Paqe-*
17,
31r34r37r39

48 t53 r82

1 28 Cong. Rec.
18, 1982) ::::il.il. '"ffi ,37 ,46 ,48,s3

72 r82

128 Cong. Rec. (dailY ed' June
23, 1982) """"""""

uiscellanequs 
.

Joint Center for Politica1 Studies
National Rost'er of Black
Elected Officials
(1984) tt"'''''t""''"t'

Los Angeles Times, MaY 4,
1982 """""""..""

Wal1 Street Journal, ilaY 4l
1982 ""'o"t""'o".."'

New York Times, Dec. 18, 1981'
P. 87, COl' 4 """"""

x 111-

34

43

43

41



STATEI4ENT OF THE CASE1

This is an action challenging the

districting plan adopted in 1982 for the

election of the North Carolina legisla-

ture. North Carolina has long had the

smallest percentage of blacks in its st'ate

legislature of any state with a substan- '

tial black population.2 Prior to this

litigation no more than 4 of the 120 state

representaEivesr oE 2 of the 50 state

The oplnion of the district court as
i"ptiritea in the a.pPend ix 

-.t-o- . 
the

J"iitai.tional St,atement his two signif i-
cant, tlrpograPhical errors' Tf't Appendix at
J.S. 3aa lna 36a states, "Since t'hen two
bi;;f .itizens have run successfully in
i[; (Mecklenburg Senate dist'rict) " .'
and hrn Halifai County, black cit'izens
have run successfull!...' Both sentences
;i the opinion actually r91d -lr'u1e run
unsuccess?ul1y." (Emphasis added) ' Due to
Efr.i. "na 

other errors, the opinion has
il;; t.ptinted in the Joint Appendix' at
JA5-JA58.

2 See Joint Center for Political Studies'
NationalRosterofBlackElectedofficials



2-

senators, were black.3 Although blaeks are

22.41 of t,he st'at,e populationr the number

of blacks in either house of the North

Carolina legislature had never exceeded

4t. The first black was not elected to

the tlouse until 1968, and the f irst black

stat,e senator was not elected unt.il 1974'

Nor th Carol i na makes great'er use of at

large legislative elections than most

other states; under t'he 1982 districting

plan 98 of the 120 represent'atives and 30

of t,he 50 state senaEors e'ere to be chosen

from multi-member districts' 4

In JulY 1 981 , following the 1 980

census, North Carolina initially adopted a

redistricting plan involving a tot'al of

1 48 multi-member and 22 single member dis-

JA 94-5.

BB and EE, ChaPters
of 2nd Ext,ra Session

3

4

Stip. 96,

stip. Ex.
Sess. Laws
67.

1and2
1 982, JA



3

tricts.5 Under this plan every single

tlouse and Senate district had a white

majority.6 There was a population devia-

tion of 221 among the proposed dist'ricts'

Forty of North Carolina's 1 00

counties are covered by section 5 of the '

Voting Rights Act; accordingly, the state

was required to obtain preclearance of

those portions of the redistricting plan

which af f ected t'hose 40 counties ' North

Carolina submitted the 1981 plan to the

Attorney General, who entered objections

t,o both the llouse and Senate plans' having

concluded that nthe use of large multi-

memberdistrictsefEectivelysubmerges
cognizable concenEraEions of black

Stip. Ex. D and F, Chapters 800 and 821
Sess. Laws 1981, JA 61.

The opinion states one district was

n" j o rliy bl ack i n PoPul at io n , JA7 'ieierri-ng t'o the second 1981 plan'

"*"t"a 
iri octoUer after this lawsuit was

iil;d- st,ip. Ex . L, JA 62-



4-

population inEo a majority white elec-

torate." StiP. Ex. N and O, JA63' For

similar reasons, the Attorney General also

objected to Article 2 Sections 3(3)and

5 ( 3 ) of the North Carolina Const'it'ut'ionr

adopEed. i n 1961 but not submitted for

preclearance until after this lawsuit was

filed, which forbade the subdivision of

counties in the formation of legislative

districts. StiP. 22, JA 53.

Appellees filed this action in

September 1981, alleging, inter alia, that'

the 1 98 1 redistricting plan violated

section 2 of the Voting Rights Act and the

Fourt,eenth Amendment- Following the

objections of the At,torney General under

section 5, the state adopted two subse-

quent redistricting plans; the complaint

tiras supplemented to challenge t'he final

pIans, which were adopted in April, 1982.

Stips. 42r43t JA 67. In June 1982 Congress



5

amended section 2 to forbid election

practices with discriminatory results' and

the comPlaint was amended to reflect thaE

change; thereafter the litigation focused

primarily on the aPPlication of the

amended section 2 to the circumstances of

this case. APPellees. contended t'hat'six'

of the multi-member districts had a

discriminatory resuLt which violaEed

section 2, and that t'he boundaries of one

single member district also violaEed that

provision of t,he Voting Rights Act'

Aft,er an eighE day trial before

Judges J. Dickson Phillips I Jt'1 Franklin

T. Dupree 1 Jt - 1 and W' Earl Bri'tt 1 Jt ' 1

the court unanimously upheld plaint'iffsr

section 2 challenge. The court enjoined

elections in the challenged districts

pending court apProval of a districting

plan which did not violate section 2'7 By

Appellees did not challenge all multi-



6

subsequent orders, the court aPproved the

State I s proposed remedial districts for

six of the seven challenged districts. The

court entered a temporary order providing

f or elect,ions in 1984 only in on9 dis-

trict, former House District No. Ir after

appel lants ' pro'posed rernedial plan was

denied preclearance under section 5. The

remedial asPects of the litigation have

not been challenged and are not before

this Court.

On appeal appellants have disputed

the correctness of t,he three judge

district courtrs decision regarding the

lega1 i ty of five of the six disputed

multi-member districts. Although appel-

lants have referred t'o some facts from

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



t-

House Dist,rict No.8 and Senate District

No. 2, they have iaa" no argument in t'heir

Brief that is pertinent to the lower

court t s decision concerning either of

these districts-8 Like the united states'

we assume that the correctness of the

decision below regardlng House District

No. I and Senate District No' 2 is not

within the scoPe of this aPPeal '

THE FINDINGS OF THE DISTRICT COURT

The gravamen of aPPellees' cLaim

under section 2 is that' minority vot'ers in

t'hechallengedmulti-memberdistrictsdo
not have an equal oPPortunity to partici-

pate effectively in the political Process'

The Court did not note probable j.uris-
diction as to Question II, the question. in
the Jurisdictional Statement concernlng
ifrl"" two districts r and even the
Solicitor General concedes that' there is
no basis for aPPeal as Eo these two
dist.ricts. U.S. Br. 11.



I

and Particularly that, they do not have an

equal oPPortunity to elect candidates of

their.choice. Five of the challenged 1982

mu1t,i-member districts were the same as

had exist,ed under the 1971 plan, and the

one t,hat was different, House DistricE 39,

was o nl y mod i f ied s1ightIy. .The elect'ion

results in those districts are undisputed'

Until 1972 no black since Reconst'ruction

had been elected t,o the legislature from

any of Ehe counties in quest'ion' The

election results since'1972 are set forth

on the table on the opposite Page' As

that, t,able indicates, prior to 1982 no

more t,han 3 of the 32 legislat'ors elected

in any one election in the challenged

districts were blacki in 1981, when this

action was filed, five of the seven

districts tirere represented by all white

delegations, and three of the districts

still had never elect,ed a black legisla-



9

tor. The bl.ack populat'ion of the chal-

lenged districts ranged from 21 '8t to

39.5t. JA 21.

The district court held on the basis

of this record and its examination of

election results in loca1 offices that

nIt]he overall results achieved to date

... are minimal." JA.39. The court noted

that, following the f iling of t'his action'

the number of successful black legislative

candidates rose sharply. It concluded,

however, that the results of the 1 982

election rrere an aberration unlikely to

recur again. It emphasized in particular

thaE in a number of instances it'he

pendency of this very litigation worked a

one-time advantage for black candidates in

t,he f orm o f unusual organized pol itical

support by white leaders concerned to

forestall single-member districting.'' JA

39 n.27.



10

The distric.t court ident if ied a

number of distinct practices which put

black voters at a comparative disadvantage

when placed in the six majority white

nulti-member districts at issue. The

court noEed, first, that the ProPortion of

wh i t,e voters who ever voted f or a black

candidate was extremely lowi an average of

81t of white voters did not vote for any

black candidate in primary elections

involving both black and whit'e candidates,

and those whites who did vote for black

candidates ranked them last or next' t'o

last. JA 42. The court noted that' in none

of the 53 races in which blacks ran for

office did a majority of whites ever vote

for a black candidat,e, and the sole

election in which 50t voted for the black

candidate was one in which that candidat'e

was running unopposed- JA. 43-48. The

dist,rict court concluded that, this pattern



11

of polarized voting put black candidates

at a severe disadvantage in any race

against a white oPPonent.

The district court also concluded

t,hatblackvoterswereatacomParative
disadvantage because. the rate of registra-

t,ion among eli9ible blacks was substan-

tialIy Lower than anong whites' This

disgarity further diminished the ability

of black voters to make common cause with

sufficientnumbersoflikemindedvoters
to be able to elect candidates of their

choice. The court found that these

disparities in registration rates were the

lingering effect of a century of virulent

official hostility towards blacks who

sought to regist,er and vote' The tactics

adopted for the exPress PurPose of

disenfranchising blacks included a poIl

tax, a literacy test with a grandfather

clause, as well as a number of devices



12

which discouraged registrat,ion by assuring

the defeat of black candidat,es. JA 25-26.

When the use of t,he state literacy test

ended after 1970, whites enjoyed a 50.6t

t,o 44.6t registration advantage over

blacks. Thereafter registration was kept

inaccessible in many places, and a decade

later the gaP had narrowed only slightly,

with white registrat'ion at 66.7*, and

black registration aE 52.'l*. JA 25 and

n.22 .

The trial court held thaE the ability

of black voters to elect candidates of

their choice in majority white districts

was further impaired by the fact t,hat

black voters trrere far poorer, and far more

often poorly educatedr than white voters.

JA 28-31. Some 30t of blacks had incomes

below t,he poverty line, compared to 10t of

whites; conversely, whites $rere twice as

Iikely as blacks to earn over $20r000 a



13

year. Almost, all blacks over 30 years o1d

attended inferior segregated schools' JA

29. The district court concluded that

this lack of income and education made it

difficult for black vot'ers to elect

candidates of their choiee. JA 31 ' n'23'

The record on which the court relied

included extensive testimony regarding the

difficulty of raising sufficient funds in

the relatively Poor black community to

neet the high cost, of an at-large cam-

paign, which has to reach as many as eight

tirnes as many voters as a single district

campaign. (See notes 107-109, infra)'

The ability of minority candidates to

win white vot,es, the district court found,

iras also irnpaired by the common practice

on the Part of white candidates of urging

whites to vote on racial lines. JA 33-34'

The record on which the court relied



14

included such appeals in camPaigns in

1g76, 1980, 1982, and 1983. (See page 115,

infra). In both 1980 and 1983 white

candidates ran newspaper advertisements

depict,ing their oPponents with black

leaders. In 1983 Senator Helms denounced

his gpponent for favoring black vot'er

registration, and in a 1982 congressional

run-off white voters were urged Eo go t'o

E,he polls because the black candidate

would be "bussing" Isic] his "bIock" Isic]

vote. (See PP. 1 1 5-l 8, l3gra) .

The district court,, after an exhaus-

t,ive analysis of this and other evidence,

concluded t,hat, t,he challenged multi-member

district,s had the effect of submerging

black vot,ers as a voting minority in t,hose

districts, and thus affording them "less

opport,uniEy than ... other members oE the



elect,orate to

process and

their choice.

15

particiPate in the Polit,ical
to elect rePresentaiives of

oi JA 53-54. -

SU!{MARY OF ARGUII{ENT

Sect,ion 2 of the Voting Rights Act

was amended. in 1982 to establish a

nationwide prohibition against election

practices with discriminatory results '

Specifically prohibited are practices that'

afford minorities "less opportunity than

other members of the electorate to

participate i n t,he pol itical Proeess and

t,o elect rePresenta "'

(Emphasis added). In assessing a claim of

unequal elect,oral opportunity, the courts

are required to consider the "totalit'y of

circumstancest. A finding of unequal

Based on similar evidence the court made a
piralleI f irding concerning.the f racturing-ot the minority community in Senate
District No. 2. JA 54.



15

opportunity is a factual finding subject

to Rule 52.

City, U.S. (1985).

The 1982 Senate RePort sPecified a

number of specif ic factors the preseni'e of

which, Congress believed, would have the

effect, of denying equal electoral oppor-

tunit,y t,o black voters in a majority white

multi-member district,. The E,hree- judge

district court below, in an exhaustive and

detailed opinion, carefully analyzed the

evidence indicating the Presence of each

of t,hose f actors. In light of the

totality of circumsLances established by

that eviderc€ r the trial court concluded

thaE minority voEers were denied equal

electoral opPortunity in each of the six

challenged mult,i-member districts. The

court below expressly recognized Ehat

section 2 did not require proportional

represent,aLion. JA 17 .



17

Appellants argue herer 65 they did at

tr ia1 , t,hat the Presence of equal elec-

toral opportunity is conclusively estab-

lished by the fact blacks won 5 out of 30

at-1arge seats in 1982, !! months after

the complai nt was f iled. Prior t'o 1972 '
howeverr although 'blacks had run' no

blacks had ever been elected from any of

these districts, and in the election held

immediately prior to the commencement of

t'hisactiononly2blacks'dereelectedin
the chalLenged districts' The district

court properly declined to hold that t'he

1 982 elections represented a conclusive

change in the circumstances in the

districts involved, noting that in several

instances blacks won because of support

fromwhitesseekingtoaffecttheoutcome
of the instant lit,igation' JA 39 n'27 '



18

The Solicitor General urges this

Court to read into section 2 a P9! se rule

that a section 2 claim is precluded as a

matter of law in any district in which

blacks ever enjoyed "proportional rePre-

sentation", regardless of whether that

representation ended 'years dgor was.

inextricably tied to single shot voting,

or occurred only aft,er the commencement of

t,he litigatlon. This p-9! se approach is

i nco ns i stent with the n total ity of

circumsEances" requiremenE of secEion 2,

which precludes treating any single factor

as conclusive. The Senate Report ex-

pressly stated that the election of black

officials was not to be treated, bY

itself , as precluding a sect,ion 2 claim'

S. Rep. No. 97-417t 29 n-115.

The district court correctlY held

that there was sufficiently severe

polarized voting by whites to put minority



19

voters and candidates at an additional

disadvantage in the majority white

multi-member districts. On t'he average

more than 81t of whites do no: vote for

black candidates when they run in primary

elections. JA 42. Black candidates

receiving the highest ProPort'ion of black

votes ordinarily receive the smallest

number of white votes. ld.

ARGU!,IENT

I. SECTION 2 PROVIDES UINORITY VOTERS

AN EQUAT OPPORTUNITY TO ELECT REPRE'
SENTATIVES OF THEIR CTIOICE

Two decades ago Congress adopted the

Voting Rights Act of 1965 in an attempt to

end a century long exclusion of most

blacks from the electoral process' In

1981 and 1982 Congress concluded thaE'

despite substantial gains in regist'ration

since 1965, lninorities still did not enjoy

the same opportunity as whites to parti-



20

cipate in the political Process and to

elect rePresentatives of their choice'1o"nd

thaE further remedial legisLation l'as

necessary to eradicate all vestiges of

discrimination from the political Pro-

.""".11 The problems identified by Congress

included not only the obvious impediments

to minoritY ParticiPation, such as

registration barriers, but also elecEion

schemes such as those at-large elections

which impair exercise of the franchise and

dilut,e the voting sErength of minority

citizens. Although some of these Practices

had been corrected in certain jurisdic-

E,ions by operation of the preclearance

provisions of Section 5t Congress con-

10

11

S. Rep. No. 97-417, 97th C9t9:, 2d

34 ( igAZ) (hereinafter cited as
Reporttr).

SenaEe RePort 40; H.R. ReP. !9:
97t,h Cong. , 1st Sess. , 31 ( 1981 )

inaft,er citea as "House RePort")

Sess. ,
" Se nate

97-227,
( here-



21

cluded that their eradication required the

adoption, in the form of an amendment to

Section 2, of a nationall 2prohibition

against, practices with discriminatory

results.13 Section 2 proEects not only the

right to vote, but also "t'he right t'o have

the vote counted at full value without

dilution or discount.n SenaEe Report 19'

A. Leqislative HistorY oq-!he 1982

The Present language of section 2 r'as

adopted by Congress as Part of the Voting

Rights Act Amendments of 1982' (96 SEat''

131 ) . The 1g82 amendment's alt'ered the

Voting Rights Act' in a number of ways'

12 House Report, 28t senaE'e Report '1 5'

13 AppelLants and t'he Solicitor General
c6-nceae Ehat the f ramers of the 1982
amendments established a standard of Proof
in voEe dilution lawsuits based on
discriminatory results alone' APpgllants I

Br. at 15; U.S. Brief II at 8, 13'



22

extending the pre-clearance requirements

of section 5, modifYing the bailout

requ i reme nts of section 4 , cont'inuing

until 1 992 the language assistance

provisions of the Act, and adding a new

requlremen! of assistance to bIind,

disabled or illiterate voters; Congres-

s ional action to amend section 2 tdas

prompt,ed by this Court I s decision in

Mobile v. Bolden, 446 U-S. 55' 60-51

( 1 980 ) ' which held t,hat the original

language of section 2, as it lras framed in

1955, forebade only election practices

adopted or mainEained with a discrimina-

Eory motive. Congress regarded the

decis ion in go1den as an erroneous

interpretation of section 2r l 4and thus

acted to amend the language to remove any

such i nt,e nt, requ i reme nt .

14 House Rep. at 29i Senate RePort at 19.



23

tegislative proposals to extend the

Voting Rights Act in 1982 included from

the outset language that would eliminate

the int,ent, requirement of go1den and apply

a totality of circumstances test to

practices which merely had the effect of

discrirninating on the basis of race or

.olot.15 support for such an amendment was

repeatedly voiced during the extensive

House hearings and much of this testimony

was concerned with at-large election plans

that had the effect of diluting the impact

of minority'rot"s.16 on Jury 31 t'he House

H.R. 3112' 97th Cong-, 1st Sess., S 201;
H.R. 3198, 97th Cong-, lst Sess., S 2'

The three volumes of Hearings before the
Subcommittee on Civil and Constitutional
Ri.ghts of the House Judiciary Committ'ee,
gZifr Cong., lst Sess-, are hereinafter

"it"a 
ai iHouse Hearings." Testimony

regardi ng t,he proposed- amendment to
seition 2 can be found at' 1 llouse
Ilearings 18-19, 138, 197, 229, 365,
424-25,-454, 852; 2 House Hearings 905-07,
993-95; 1279,1361 r 1541 i 3 House llearings
1880,' 1991, 2029-32, 2036-37, 2127-28,
2136, 2046-47, 2051 -58.

15

16



24

Judiciary Committee approved a bill that

extended the Voting Rights Act, and

included an amendment, to section 2 to

remove the intent requirement, imposed by

Bo1den.1 7 The House version included an

express disclaimer to make clear t,hat the

mere lack of Proportional rePresentation

would not constitute a violation of the

1aw, and the tlouse Report direct,ed the

courts noE, E,o focus on any one facEor but

17 House Report,, 48:

'rNo vot,ing qualificat'ion or prere-
quisite to voting, or standard, practicer
or procedure sha11 be imposed or applied
by any stat,e or political subdivision Ito
deny or abridgel in a manner which results
in i denial oi a -ff

ount of race or
color, or in contravention of E,he guaran-
tees set fort,h in sect,ion 4(b) (2) . The
fact Ehat members of a minority grouP
fiI'rFe

of
oE, in and ofEne poPuracron snarr n9ql rlL_a_L9_!LL

sectlon.



25

tolookatalltherelevantcircumst'ances
in assessing a Section 2 claim' Il' ReP'

at 30.

The House RePort set forth the

comnittee I s reasons for disapproving any

intent requirement, and described a

variety of practices, particularly t'he use

of at-large electionslSand limitations on

the t,imes ard places of registration,l9with

whose potentially discriminatory effects

the Committee was particularly concerned'

On the floor of the Eouse t'he proposed

amendment t,o section 2 tras the subject of

considerable debate. RepresenEative

Rodino exPressly called the attention of

the House to this portion of the biIIr20to

which he and a number of other speakers

1 8 House Report | 17-19,

19 rd. 14, 16, 17, 30,

20 128 Corg. Ree. [I 6842
1gg1).

30.

31 n.1 05.

(daily ed. Oct. 2,



gave suPPort.2l

26

Proponents of section 2

emphasized its apPlicability to multi-

member election districts t,hat, diluted

minority votes, and to burdensome regis-

tration ard voting practi""".22 A number of

speakers opposed the proposed alteration

to sect, io n 2 ,23 and Representat,ive BI iley

moved that the amendment t,o section 2 be

deleted f rom t,he House biI1. The BliIey

128 Cong. Rec. H 6842 (ReP. Rodino), H

6843 (ReP. Sensenbrenner) r H 6877 (ReP.
Chisholm) (daily ed., Oct. 2, 1981) i 128
Cong. Rec. H 7007 (Rep. Pascell)(dai1y
€d., Oct. 5, 1981).

128 Cong. Rec. H 6841 (ReP. Glickman;
dilution), H 5845-6 (ReP. Hydei registra-
tion barriers), H 6847 (ReP. Bingham;
voting Practices, dilution); H 5850 (R9P.
Washingcon, registration and voting
barrier!); H 5851 (ReP. Fish, dilution)
(dai1y ed. , Oct. 2, 1 981 ) .

128 Cong. Rec. H 5865 (Rep. Collins), H

6874 (nep. Butler) (daily €d-, Oct. 2,
1981); 128 Cong. Rec. H 6982-3 (ReP.
BliIey) r H 5984 (ReP. ButIer, (ReP.
[lcClory), iI 5985 (ReP. Butler) (daiIy €d.,
Oct. 5, 1981 ).

21

22

23



tl

amendment was defeated on a voice o'oce'24

Following the rejection of t,hat and other

amendments the House on October 5, 1981

passed the bill by a margin of 389 to 24'25

On December 16, 1981, a Senate bill

essentially identical to the House passed

bill was introduced by Senator l'lathias'

The Senat,e biIl, S.1992, had a total of 61

initial sponsors, far more than sere

necessary to assure passage. 2 Senate

Heari ngs 4, 30, 157. The Particular

subcommittee to which S.1992 was referred,

however, was dominated by Senators who

were highIy critical of the Voting Rights

Act, amendments. After extensive hear-

128 Corg. Rec.
5, 1981).

Id. at H5985.

If 698 2-85 ( dailY ed . r Oct.24

25



28

ingsr26*o"a of them devot,ed to section 2l

t,he subcommi t t'ee recommended Passage of

S.1992, but by a margin of 3-2 voted to

delete the proposed amendment to section

2. 2 Senate Hearings 10. In 'the fuIl

committee Senator Dole proposed language

which largely restored the substance o'f S.

1gg2; included in the DoIe proposal was

the language of secEion 2 as it was

ultimately adopted. The Senate Commmittee

issued a lengt,hy report describing in

de t,a i.1 the Purpose and impact of the

section 2 amendmenE. Senate Report 15-42.

The report expressed concern wit,h two

dist,inct types of practices with poten-

rially discriminatorY effects--first,

rest,rictions on the times, places or

26 Id. Ilearings before the Subcommitee on
EIL Constitution of the SenaLe Judiciary
CommitLee on S.53, 97th Cong-, 2d Sess-
( 1 982) (hereinafter cited as "Senate
Ilearings" ) .



29

methods of registration or vot'ing, the

burden of which would fall most heavily on

mincrlti es r27 and, second, election systems

such as those multi-member districts which

reduced or nullified the effectiveness of

minority votes, and impeded the ability of

minority voters to elecE candidates of

their choice.28 The SenaEe debates leading

to approval of the section 2 amendment

reflected similar concern".29

The Senate report discussed t'he

various types of evidence E,hat would bear

on a section 2 cIaim, and insisted' t'hat

Ehe courts were to consider all of this

evidence and t'hat no one type of evidence

Senate RePort, 30 n.119.

Senate RePort, 27-30.

128 Corg. Rec. S 5783 (daily ed. June-l5,
1982)(Sen. Dodd); 128 Cong. Rec. S 7111
(daiIy ed. June 18, 1982) (Sen. Met-
zenbaum), S7113 (Sen. Bentsen), S 7116
(Sen. Weicker)r S 7137 (Sen. Robert
Byrd).

27

28

29



30

should be treated as conclusi""'30 Both the

Senate Report and the subsequent debates

make clear t,hat it rdas the intent of

Congress, in applying t'he amended section

2 to multi-member districts, to reestab-

lish what, it understood to be the totality

of circumstances test t'hat had been estab-

lished by White v.Regestert 412 U'S' 755

(1973)r31and that had been elaborated uPon

by the lower courts in the years between

EEi!9 and Eg]5|g.32 The most importanE and

freguently cited of Lhe courts of appeals

dilution cases was zimmer v' t'lcKeithen'33

Senate RePort, 23, 27.

Senate RePort, 2, 27, 28, 30, 32'

Senate RePort, 16, 23, 23 n'78, 28' 30'
31 , 32.

Zinuner was described by Ehe Senate Report

=. 
seminal" decisibn,.id. at 22, and

was cited 9 times in the nSort' Id' at
22, 24, 24 n.85, 28 n.11-2, 29 n'1J3' 29

n. i t 5, zg n. 1 1 6, 30, 32, 33 . senator
oeConcini, one of the framers of the DoIe
pioposaf , described Zimmer as " [p]-erh-aps
the clearest expressiffithe st'andard of

30

31

32

33



31

485 F.2d 1297 (sth Cir. 1973)(en

aff 'd sub nom. pa-st Carroll Parish

Board v. Marshall, 424 U.S' 635 (1975)'

The decisions appLying Whit'e are an

import,ant source of guidance in a section

2 dilution case

The legislat,ive history of section 2

focused repeat'edly on the possibly

discriminatory impact of multi-member

districts. Congress was sPecificalIY

concerned that, if there is voting along

racial lines, black voters in a majority

white rnulti-member district would be

unable to compeE,e on an equal basis with

whit,es for a role in electing public

officials. Where that' occurs, the white

ma jority is able to determine the out'come

of elections and white candidates are able

banc),

School

proof in these vot,e
Cong. Rec. 56930
1 982) .

dilution cases.' 128
(daily ed. June 17,



32

to take positions without regard to the

votes or preferences of black voters,

rendering the act of voting for blacks an

empty and ineffective ritual. The Senate

Report, described in detail the types of

circumstances, based on t,he White/Zinmer

f actors, under which b.lacks in a multi-

member district would be less able than

whites to eIect, regresentatives of their

choice. Senate RePort | 28-29. '

The Solicitor General, in support of

his contention that, a section 2 claim may

be decided on the basis of a single one of

E,he seven Senate Report factors--electoral

success--regardless, of t,he toEality of the

circumstances, offers an account of the

legislative history of section 2 which is,

in a number of respects, substantially

i naccura Ee . F i rst , t'he Sol ici tor asserts

t,hat, when the amended version of S. 1992

tras reported to the ful1 JudiciarY



33

Committee, there was a "deadlock'n U'S'

Br. !r 8; Br. II, 8 n.12. The legislative

situation on Dlay 4,'1982 when the Dole

proposal was offered, could not conceiv-

ably be characterized as a *deadlock, " and

rras never so described by any supporter of

the ' proPosal. The entire JudiciarY

Comtni ttee f avored reporting out a bill

amending the Voting Right's Act, and ful1y

two thirds of the Senate was'committed to

restoring the House results t'est if t'he

Judiciary Committee faiLed to do so'

Crieics of the original S.1992 had neither

the desire nor the votes to bottle up the

bill in Committeer34und clearly lacked the

votes to defeat the section 2 amendment on

Ehe floor of Ehe Senate. The leading

34 2 Senate llearings
( " IW j hatever haPPens
amerdment,, I intend to
retrrcrtirg of the VoEing
Commi t,tee " )

69 (Sen. Hatch)
to the ProPosed

support favorable
Right,s Act bY t,his



34

Senate oPPonent of the amendment acknowl-

edged that passage of the amendment had

been foreseeable ufor many months" prior

to the ful1 Committeers action.35 senator

DoIe commented, when he offered his

proposal, thaE nwithout any change the

House bi 11 would have passed . ' 2 Senat,e

Hearings 57. Both supporter"36und oPpo-

nents3Tof sect,ion 2 alike agreed thaL the

35 2 Senate ilearings 69 (Sen. Hatch).

36 Senate Report, 27 (section 2 "faithful to
the basit intent" of t,he House bill); 2

Senate Hearings 50 (Sen. DoIe)(nIT]he
compromise retains t'he results standards
of the Mathias/Kennedy bi1I. However, we
also feel that the legislaE,ion should be
strenqthened with additional language
ffiwhat legal st,andard shouLd
apply under the results test. - .') (EmPha-
sis added), 51 (Sen. Dole) (language
"strergthens the House-passed bi11" ) 58
(Sen. Biden) ( new language merely "clari-
fieso S.1992 and "does not change much"),
128 Cong. Rec. S6960-61 (daity ed. June
17, 1982) (Sen. DoIe); 128 Cong. Rec-
H3840 (daily ed. June 23, 1982)(ReP.
Edwards).

37 2 Senate Hearings 70 (Sen. Hatch)("The
proposed comprornise is not a comPromise at
all, in ny oPinion. The imPact, of the



?q
JJ

Ianguage proposed by Senator Dole and

ultimately adopted by Congress was

intended not co water down the original

House bill r but merely to spell out more

expl icit,ly the inE'ended meaning of

legislation already approved by the

lio,r"". 38

The Solicitor urges the Court to give

little weight to the Senate RePort

accompanyi ng S. 1 992, describing it as

proposed compromise is not like1y to be
;;"- trt ie di-f ferenc than the unamended
House measure' relating to section 2i
Senate Report, 95 (additional views of
sen. gatcf,); 128 Cong. Rec. (daily ed'
Jr"" gr 1g82i s e515, s.6545 (sen' Hatch)i
128 Cong. Rec. (daily ed. June 10, 1982) S

6725 (5en. East); lZA Cong. R!"' (daily
ed., June 15, 1982) s.6786 (Sen' Harry
Byrd).

38 The cornpromise language v'as designed t'o
reassure Senate cosponsors that the White
v. Regester totality of circumstances test

t-t
e ndorseo 'in t,he House, and espoused
throughout the Senate hearings by -sup-p".t"ri of the House passed bi11, would be
loaitiea in the stat,ute itself ' 2 Senate
Hearings 50; SenaEe RePort , 27 '



35

merely t,he work of a Eaction. U.S. Br. I,

8 n.6i U.S. Br. II, I n.12, 24 n.49.

Not,hing in the legislative history of

section 2 supports the Solicit,or's

suggestion thaE this Court should depart

from the long established principle that

conmittee reports are t,o be treated as t'he

most, authoritative guide Eo congressional

intent. Garcia v. United States, 105

S.Ct . 479 , 483 ( 1 984) . Senator DoIe, to

whose position the Solicitor would give

particular weight, prefaced his AddiEional

Views with an acknowledgement that, i [T]he

Committee Report is an accurate statement

of the intent of S.1992r ds reported by

the Committee. ''39 on the floor of the

Senate both supporters and opponents of

39 senate Report 193i see also id. at 196 ("I
express my views not to ta'k-e issue with
t,he body of Lhe report'r ) 199 ( " I concur
with the interpretation of this act'ion in
the Committee Report."), 196-98 (addi-
tional views of Sen. GrassleY).



37

section 2 agreed E,hat the Comruittee rePort

constituted the authoritat,ive explanation

of the legislation.40 until the filing of

its briefs in this case, it was the

consistent contention of the DePartment of

Justice that, in interpreting section 2

i It J he Senate Report. .. is entitled to

great,er weight than any other of the

legislative history.n4l only in the spring

of 1985 did the Department reverse its

position and assert that the Senate report

was merely the view of one faction t'hat

40 128 Corg. Rec. 55553 (daily ed: r {9n" 9,
1982) (S6n. Kennedy) ; S5646-48 (dai1y ed'
June 10, 1982) (Sen. Kennedy); 56781 (9e!.
Dole)(daiIy ed. June 15, 1982); 56930-34
(Sen. DeConcini), S5941-44, 56967 (8"!'
liathias), S6960' 6993 (Sen. DoIe), s6967
S6991 -93 (Sen. Stevens) r S6995 (Sen'
Kennedy) (dailY ed. June 17 , 1 982) ;
s7o9 1-92 (Sen. Hatch) , s7095-95 (Sen.
Kennedy) (dailY €d. , June 1 8, 1 982) .

Post-Trial Brief for the United States of
America, County Council of Sumter County,
s;th- c

41



- 38

"cannot be taken as determinative on all

counts.' U.S. Br. I, P. 24, n'49' This

newly formulated account of the legisla-

tive history of section 2 is clearly

incorrect.
The Solicitor urges that substant'ia1

'weight be given to the views of Senator

'e assistant.43 rn

fact, however, Senator Hatch was the most

intransigient congressional critic of

amended section 2t and he did not as the

43

In an amicus brief in Crty Coun"it,?t,!I'
Citv of Chicaeo v. Ket,chum, No. 64-bzl,

in this case,
U.S. Br. lI 21 n.43, the Solicitor asserts
that Senator Hatch rsupported the com-
promise adopted by Congress." Brief for
United States as Amicus, 16 n.15.

The Solicitor cites for a supposedly
authoritative summary of the origin and
meanirg of section 2 an article written by
Stephen t'tarkman. U.S. Br. II, 9, 10.
Mr. llarkman is the chief counsel of the
Judiciary Subcommittee chaired by Senator
Hatch, and vras Senator Hat'ch's chief
assistant in Hatch's unsuccessful opposi-
tion to the amendment to section 2.

42



?o
JJ

SoI ici tor suggest,s support the Dole

proposal. On the contrary, Senat'or Hatch

urged the Judiciary Committee to reject

the DoIe ProPosal ,44and Itas one of only

four Commit,tee members t,o vote against

it.45 rollowing the Committeets action,

Se nator Hatch apPended 'to the Senate

Report Additional Views object'ing t'o this

modified version of section 2.46 on the

floor of the Senate, S€nator HaEch

supported an unsuccessful amendment' that

would have struck from the bill the

amendnent to section 2 that had been

adopted by the Committ"er4T.td again

denounced the language which eventually

44 2 Senate lleari ngs 7 0-7 4 -

45 E. gs-g6.

46 Senate Report, 94-101-

47 128 Corg. Rec. s6955 (daily ed. June 17,
1 982) .



40

became 1arr.48

Final1y, t,he Solicit'or urges that the

views of the President regar'iling section 2

should be given "particular weight"

because the President endorsed the DoIe

proposal, and his "suPPort' for the

compromise ensured its passage." U.S. Br.

I, 8 n.5. We agree with the Solicitor

General that the construction of section 2

wh ich the Depart'ment oi ' Justice now

proposes in its amicus brief should be

considered in light of the role which the

Administration played in the adoption of

this leg islation. But t,hat role is not,

as the Solicitor asserts, one of a key

sponsor of the legislation, wit,hout whose

48 Irrnediately prior to the f inal vote on the
bi11, S€nator Hatch stated, "these
amendments promise to effect a destructive
Eransformat,ion in the Voting Right,s Act. "
128 Corg. Rec. S7139 (daily ed. June '18,

1982) i 128 Cong. Rec. (daily ed. June 9,
1982) s5506-21.



41

support the bill could not have been

adopted . On the cont,rary, the Adminis-

tration in generalr dlrd the Department of

Justice in particularr were t'hroughout the

legislative Process among the most consis-

tent, 3damant,. and outspoken oPponents of

the proposed amendment to section 2'

ShortIY after the Passage of the

House biIl, t,he Administration launched a

concert,ed attack on the decision of the

House to amend sect,ion 2. On November 6,

1981, the President, released a statement

denouncing the "new and untested teffects'

standard, o and urging that section '2 
be

1 imi ted t,o i nst'ances of purposef u1

discriminat,ion, 2 Senate Hearings 763 |

a posit,ion t'lr. Reagan strongly reaf f irmed

at a press conEerence on December 17 '49

When in January 1982 the Senate commenced

49 New York Times, Dec- 18, 1981, P. B.7,
coI. 4.



42

hearings on proposed amendments t'o t'he

Voting Rights AcE,, the Attorney General

appeared as the first witness to denounce

sect io n 2 as n j'ust bad legislat ion,'

objecting in particular to any Proposal to

apply a results standard to any s.tate not

covered by section 5. 1 Senate Hearings

7 0-97 . At the close of the Se nat'e

Hearings in early March the Assist'ant'

Attorney General for Civil Rights gave

ext,ensive testimony in opposition to the

adoption of the toEality of circumstances/

result.s test. Jd., dt 1555 et.:gg. Both

Justice Department officials made an

effort to solicit public opposition to the

results test, publishing critical analyses

in several national newspaPet"5O.rd, in the

50 2 Senate Hearings 770 (Assistant At-
torney General Reynolds ) (Washington
Post), 774 (Attorney General Smith) (

Op-ed article, New York Times), 775
(Attorney General Smith) ( Op-ed article,
Washington Post).



43

case of the At,t,orney General, issuing a

war ni ng t,o members of the United Jewish

Appeal that adoption of a result's test

wouLd lead to court ordered racial quo-

tas.51 The whit,e llouse did not endorse the

Dole proposal until after it had t'he

support of 1 3 of the 1 I members of the

Judiciary Committee and Senator Dole had

warned publicly that he had the votes

necessary to override anY veEo'52

Having failed t,o persuade Congress to

reject a results standard in section 2t

the Department of Just'ice now seeks to

persuade t,his court to adopt' an interpre-

tation of sect'ion 2 t,hat would severely

limit the scope of E,haE provision' Under

these unusual circumstances the Depart-

rd. at 780.

Ios Argeles Times, MaY
Street Journal, MaY
Senat,e Hearings 58.

4, 1982, P. 1; WaIl
4, 1982r P. 8; 2

51

52



44

nenE I s views do not apPear to warrant the

weight that might ordinarily be apPro-

priate. We believe that greater deference

should be given to the views expressed in

an amicus brief in t,his case by Senator

Dole and the other principal cosponsors of

section 2.

B. Equa1 Elect,oraI Opportunity is

Section 2 Provides that a claim of

unlawf uI vot,e dilution is established Lf ,

"based on the tot,ality of circumstancesro

members of a racial minority "have less

opportunicy t,han ot,her members to partici-

pat,e in the political process and to elect

representatives of their choice."53 rn the

instant case the district court concluded

that minority voters lacked such an equal

opportunity. JA 53-54.

53 42 u. s.c. s
forth in the

1973, Section 2(b) is set
opinion below, JA 13.



45

Both aPPellanEs and the Solicitor

General suggest,, however, that section 2

is limited to those extreme cases in which

the effect of an at-Iarge election is to

render virtually impossible the election

of public of f icials, black or ot'herwise r

favored'by minority voters. Thus appel-

tants assert, that section 2 forbids use of

a multi-member district when it''effec-

tively locks the racial minority out' of

the political forumr' A. Br. 44, or

"shutIs] racial minoricies out of the

electoral process" Ig. at, 23. The Soli-

cit,or invites the Court, to hoLd t'hat

section 2 applies only where minority

candidaE,es are "effectively shut out' of

the political Process' . U. S. Br ' I I 27 i

see also id. at 11. On this view, the

election of even a single black candidate

would be fatal t,o a section 2 c1aim.



46

The requirements of section 2,

however, are not' met by an election scheme

which nerely accords to minorities some

minimal oPPortunity to participate in the

political process. Section 2 requires

t,hat ithe polit,ical processes leading to

nomination or election" be, not merely

open to minority voters and candidates,

but, 'gquaIly open"- (Emphasis added)' The

prohibition of section 2 is not linited to

those systems which provide minorities

with no access whatever to the political

process, but extends to systems which

afford minorities "less opportunity t'han

other members of Ehe elect,orate to

participate in t,he pol itical process and

to elect representatives of their choice.'

(Emphasis added).

This emphasis on equality of opportu-

ni ty was re i terated throughou t' t'he

legislative history of section 2. The



47

Senate report insisted repeatedly that

section 2 required equality of political

opportu ni ty . 5 4 Senator Dole, in his

54 S. Rep. 97-411, p. 15 (nequal chance to
pitiitipate in- che electoral Process' i
iequat iccess to the electoral pr-oce:q"l
20'("equa1 access t'o the goIi-tical
piocess"'; at-large elections inval id if
ihet-9ivi minoriLies "less olopoltunity
t,fran .-. . other residents to participate in
ih; political processes and to elect'
legiilutot" of tireir choice" ) , 21 (PIain-
tiEfs must Prove they "had less opPortu-
nit,y ttran -did othel residents in the
disirict to participate in the polit'ical
processes aha to ilect legisl-atgrs of
tf,.ir choice'), 27 (denial of "equl^l
access to the political process"), 28
(mi noritY vocers to have " t'he same
ipp"itunily Eo participat'e in the politi-
cii procesi as other citizens enjoy";
minoiity voters entitled to "an equal
oppo.tu-nity to participat'e in the
piiit""I pr6cessel and to elect candi-
bates of tneir choice" ) I 30 ( "denial of
equal access to any phase of the electoral
pio.""" for minorfty votersn; sE'andard is
lhether a challenged practice "operated
to deny the minority qlaintiff an equal
opporIunity to par!iqiPate and elect'
ciiaidates -ot t,neir choice"; process must'
be "equally open to part,icipati-on ?y e!'q
grouP' in qi.rejtion" ) , 31 (remedy should
issu-re "e!ua1 oPPortunit'y for minority
citizens Io participate and t'o elect
candirJat,es of their choice") '



48

Additional Views, endorsed the committ'ee

report, and reiterated that under the

language of section 2 minority voters were

to be given "the same opPortunity as

ot,hers to participate i n the pol itical

process and to'e1ect the candid'at'es of

their choice".55 Senator Dole and others

repeatedly made t,his point on the floor of

the Senate.56

The standard announced in White v'

EggSSg was clearly one of equal oPPor-

tunity, prohibiting at-large elections

which afford minority voters 'less

opportunity than ... other residents in

Id. at 194 (emPhasis omitted); See also
fi. at 193 ("Citizens of all races are
frti.t,1ed to have an equal chance of
elect ing candidates of their choice. . ' . " ) 2

194 (ndqual access to the political
prccess).

128 Cong. Rec. S5559 , S5560 (Sen'
Kennedy) Gaily ed. June 9, 1982\ i daily
ed. June 17, 1982); 128 Cong. Rec'
57'l 1g-20 (Sen. Dole), (daily ed. June 18,
1982).

55

fo



49

the district to ParticiPate in the

political Processes and to elect legisla-

tors of their choic€.n 412 U'S' at 765'

(Emphasis added). The Solicitor General

asserts that during the SenaEe hearings

three supporters of section 2 described it

as 'merely a meqns.of ensuring that'

minorities were not effectively rshut' outr

of the electoral process"' U'S' Br' II'

1 1 . This is not an accurate description

of the teslirnony cited by t'he solicitor'57

57 David Walbert stated t'hat' minority
,ot"t" had had 'no chancer to win elec-
tions in their earlier successEul
dilution cases, 1 Senate llearings 626t
but also noted that the standard under
white was whether minorit,y voters had an
f,66EE'f opportunityo Eo do so' Id" Senator
Keinedy- 

-stated ttrat under -Section 2

minorifies could not be "effectively. shut'
oui of a fair opportunit'y t'o par!icipate
in the ele: ionr. Id. at' 223' Clear1y a

'fair" opportunitflis more than any
minimal ob-porcunity. Armand Derf ner did
use the woids ishut out", but' not, as the
Solicit,or does, Eollowed by the clause "of
the political process". Id' at' 810' t'lore
impoitanEly, Soth in histral statemenE'
(ia. at 7i6, , 8oo) and his PrePared
sEtemenu (id. at 811, 818) Mr' Derfner



50

Even if it ttere, the remarks of three

witnesses would carry no weight where they

conflict with the express language of the

bi11, the committee rePort, and the

consisEent staEements of supporters' Ernst

and ErnsE v. Hochfeldeqr 425 U'S' 185, 204

n.24 (1976).

The cent,ral argument advanced by the

Solicitor General and the appellants is

t,hat the election of a black candidate in

a multi-member district conclusively

establishes the absence of a section 2

violation. The Solicitor asserts, U S'

Br. I 13-14, that it is not sufficient

that there is underrepresentation nob', or

expressly endorsed E,he equal opPort'unity
standard.

The Election of Some t'{14cliitY

Est



51

t,hat there was underrePresentation Eor a

century prior Lo the filing of the action;

on the Solicitorrs view there must at' all

times have been underrepresentation' Thus

t,he Solicitor insists there is no vote

dilution in Senate District 22, which has

not elected a black since 1978, and that

there can be no vote dilution in llouse

District 36, because, of eight represen-

tatives, a single bIack, the first this

century, was elected there in 1982 after

this liEigation was fiLed.

This interPretation of section 2 is

plainly inconsistent wit,h the language and

legislative history of the statute '

Section 2(b) directs t'he courts t'o

cons ider " t,he total ity of circumsEances ,'

an admonition which necessarily precludes

giving conclusive weight to any single

circumst,"n.".58 The " totarit,y of circum-

58 tne solicitorrs argument also flies in the



52

stances" standard was taken from White v'

Regester, which Congress i ntended to

codify in section 2. The House and Senate

reports both emphasize the import'ance of

considering the totality of circumstances,

rather than focusing on only one or two

portions of the record. Senate Report 27,

34-35; House RePort, 30. The Senat'e

Report sets out a number of " [t] ypical"

fact,ors to be considered in a dilution

".".r59 of which nthe extent, to which

members of t,he minority group have been

face of t,he language of sect,ion 2 which
disavows any intent t'o establish propor-
t,ional represent,ation. On the Solicitor r s
view, even if there is in fact a denial of
equal opporEunit,y, blacks cannot .orevail
in a section 2 action if they haver oE
have ever had, Proportional representa-
Eion. Thus proPortional representation,
spurned by Congress as a measure of
liability, would be resurrected by the
Solicitor General as a tyPe of afEirmative
defense.

59 The facEors are set out in the opinion
below. JA 1 5.



53

elected to public office in the juris-

diction' is onlY one, and admonishes

"there is no requirement Ehat any partic-

ular number of factors be proved r oE that

a majority of t,hem point one way or the

other.' Senat'e Report 28-29 ' 
60 Senator

Dole, in his additional views accomPanying

the committee rePort, makes this plain'

"The extent to which members of a Pro-

tected class have been elected under the

challenged practice or structure is just'

one factorr among the totaliLy of circum-

stances to be considered, and is not

lis-P@'" Ig' at 1e4'

added).51

( Emphas i s

50

51

See also Senate Report 23 (rnot every one
of t,he f actors needs to be proved in order
to obtain relief").
128 Cong. Rec. S5961 (daily ed. Jung-17,
1982) (3en. Dole); 128 Cong. Rec. 37119
(daily ed. June 18, 1982) (Sen. DoIe)'



54

The arguments of aPpellants and the

SoI icitor General t,hat any minority

elect,oral success should foreclose a

sect,ion 2 claim erere expressly addressed

and re jected by Congress. The Senat'e

Report explains, "the election of a few

minority. candidat'es does not I necessariLy

foreclose the possibility of dilution of

the black vote. r" }|. at 29 n.115. Both

White v. Regester and its ProgeoYr as

Congress well knew, had rePeatedlY

disapproved the contention now advanced by

appellants and the Solicitot.52 In white

itself, as the Senate RePort noEed, a

total of two blacks and five hispanics had

62 'The results testr codified by the
committee bi11, is a well-established
on€r familiar to the courts. It has a
reliable and reassuring track record,
which completely bel1qs claims that it

ETon €hE st.andard for avordrng a vlo-
n9. Rec.

55559 (Sen. Kennedy) (daiIy ed. June 9,
1982).



55

been elect,ed from the two multi-member

disEricts invalidat'ed in that case ' Senate

Report 22. Zimmer v. lilcKeithen' in a

passage quoted by the Senate Report' had

refused to treat "a minority candidaters

success at the polls [a]s conclusive'" }|'

at 29 n.115. The decision in Zimmer is

particularly important because in that'

casethecourtruledfortheplaint'iffs
rJespite the fact that blacks had won

two-thirds of the seats in the most recent

at,-large election. 485 F'2d at 1314' The

dissentersinZimmerunsuccessfullymade
the same argument, now advanced by appel-

lant,sandtheSolicitor,insisting"the
elect,ion of ehree black candidaEes o o '

pretty well explodes any notion that' black

voting strength has been cancelled or

minimized". 485 F.2d at 1 31 0 (Coleman'

J., dlssenting). A number of other

lower court cases implementing White had



55

also refused to attach conclusive weight'

to the election of one or more minority

cand idaEes . 63

There are, as Congress anticipated, a

varieEy of circumstances under which' t'he

election of one or more minority can-

didates might occur despite an absence of

63 Kirksev v. Board of Supervisors, 554 F.2d
Cross v.

saxter, 604 r.ia 875t 880 n.7 1 g'Bs-iEh
ei=-979); united states v. Boqr<f of
Supervisors o

v.
Bouse, 515 F.2d 519, 623 n.2-i5EIlffi
ffTTl. See also senat,or Hollings'
comments on the district courE decision in
tlcCain v. Lybrand, No.74-281 (D.S.C.
aErTr-Tz, -i9B-o-[l-ETnd i ng a vot, i !9 . r igh t's
violation despite some black participation
on the school board and other bodies. 128
Cong. Rec. S5865-56 (daiIy ed. June 16,
1975) . In Pos t,- 1 98 2 sect ion 2 cases , the
court,s have also rejected the contention
that, the statute only applies where
minorities are completely shut out. See
e.s., United St,ates v.- Marengo Couffi
cdnmission 3l

Ttm) , cerr. denied, 105 s.ct . 375'
(1984) ; velas6#'r@, 725
F.2d io17;ffisffigr v.
Treen, 574 F. SupP. 325 (E.D. Lf-TgTT)-
TETFree- j udge court ) .



)t

the equal electoral oPportunit'y reguired

by the stat,ute. A minority candidate

might, simply be unopposed in a primary or

general electionr or be seeking election

in a race in which there were fewer white

candidates .t'han there rdere posit'ions t'o be

fi1red.54. whit" officials or polit'icaI

64 The Solicitor General suggests that t'he

""ty 
fact, that a black candidate is

unofposed conclusively demonst'rat'es thaE
the- Landidate or his or her suPPorters
tei" simply unbeat'able. U'S' Br' II, 22

n.ee, 33.- But the number of white
potent,ial candidaEes who choose to enter a'particular at-large race may-we11 be the
iesuft of personalbr political considera-
tions entirely unrelated to the circum-
stances of Lny rninority candi.d-ate'
Evidence that white potential candidates
lrere ,ileterred by the perceived strength of
a minority candidate mighE be -relevantrebuttal 6vidence in a section 2 action,
but here apPellants offered no such
evidence t6-explain the absence of a
suf f icient, number of whiEe candidates t'o
contest, all the at-large seats ' llore-
over, in other cases, the DePartment of
Justice has urged courts to find a

violationof section 2 notwithst'anding the
election of a black candidate running
unopposed. See Un$e<!- Stat'es v! M-qqgge,
CounEY Commiss
@indings of Fact and
Conclusions bf Law for the United St'ates,



58

leaders, concerned about a pending or

threat,ened section 2 action, might

engineer the election of one or more

minority candidates for the PurPose of

preventing t,he imposition of single member

district".55 The mere fact that, minority

candidat,es were elected would not mean

that, those successful candidates were the

representatives preferred by minority

filed June 21, 1985, P. 8.

65 Zimmer v. McKeithen, 485 F.2d at 1307:

nsuch success might, onoccasion, be
attributable to the work of PoIi-
ticians, who, aPPrehending that the
support of a black candidate would
be-pol itical ly expedient, campaig'n
to insure his election. Or such
success might be attribuEable t,o
political suPPort mot,ivated bY
a i f fe re nt co ns ideratio ns--namely
t,hat election of a black candidate
will thwart successful challenges to
electoral schemes on dilut'ion
grounds. In either situationr a
candidate could be elected despite
the relative political backward ness
of black residents in the electoral
district. "



qo
J'

voters. The successful minority candi-

dates might have been the choice, as in

White v. Regester, 412 U.S. at 755i Senate

Report, 22, of a white polit'ical organiza-

tion t ot might have been able to win and

retain office only by siding with the

white community onr oE avoiding entirelYr

those issues about which whites and

non-whites disagreed. Even where minority

voters and candidaEes face severe inequal-

ity in opportunity, there will occasion-

a1ly be minority candidates able to

overcome t,hose obst acles because of

except,ional ability or ha rst,roke of luck'

which is not Likely to be repeaEed....'56

The elect,ion of a black candidate may

also be the result of "single shooting',

which deprives minority voters of any vote

at all in every at-Iarge elecEion but one'

55 wallace v. House, 515 F.2d 619, 623 n.2
ffi



60

In mult,i-member elections for the North

Carolina General Assembly where t'here are

no numbered seats, voters may typically

vote for as many candidates as there are

vacancies. Votes which they cast for their

second or third favorite candidates,

howeverr illoY result, in the victory of that

candidat,e over the votersr f irst choice'67

Where voting is along racial 1ines, the

only way minority voters may have t'o give

preferred candidates a serious chance of

victory is to cast' only one of the ir

ballotsr oE "single shootr' and relinquish

any opPortunity at all to influence the

57 tnis is especially true in North Carolina
where, becluse of the multiseat, electoral
system, a candidate may need votes from
m-ore than 50t of the voters to win' For
example, in the Forsyth Senate- primary in
1 980; there were 3 candidates fot 2 seats '
If the votes were spread evenly and all
voters voted a fu11 s1ate, each candidate
would get votes from 2/3 or 57* of the
voE,ers. f n such circumstances it would
take votes from more t,han 67* of the
voters t,o win. N.C.G.S. 153.111(a)(2).



61

election of the other at-large officials'58

Where single shot vot'ing is necessary

to elect a black candidate, black voters

are f orced to l imit t,he ir f ranchise in

order to compet,e at all in the political

process. This is the functional equiya-

lent of a rule which pernit'ted white

voEers t,o cast five ballots for five

at-large seatsr but required black voters

to abnegate four of those ballots in order

to cast one ba1lot for a black candidate'

58 For example, in 1978, in Durham County,
99t of t,he black voters voted for no one
but the black candidate, who worl' JA Ex'
Vol. I Ex. 8. In Wake CountY in 19781
approximately 80t of the black voters
sirbported thL bl ack ca nd idate , but
beciuse not, enough of them single shot
voEed t,he black candidate lost'. The next
year, aft,er substantially more black
voters concentraEed their voEes on the
black cantlidat,e, forfeiting their right to
vot,e a full slate, the f irst black v'as
elected. Similarly in Forsyth Count'y when
black voters voted a fuI1 slate in 19E0,
the black candidat,e lost. It was only
af ter many black vot'ers declined t'o vot'e
for any wfrite candidates that black
candidates erere elected in 1982. Id'



62

BIack voters may have had some opportunity

to elect one representaEive of their

choice, but theY had no oPPorE'unitY

whatever to elect or influence the

election of any of the other rePresenta-

t,ives Even where. the election of one or

more blacks suggests the Possible exis:

tence of some electoral opPortunities for

minorities, t'he issue of r*het,her those

opportunit.ies are the same as the oPPor-

69 There is no support, for appellants' claim
that white candidates need black support
to win at,-large. Black vot,es l,ere not
important for successful white can-
didates. Because of the necessity of
s i ng Ie shot vot, i ng , i n most i nst'ances
btacf voters were unable to affect the
outcome of other than the races of the few
blacks who won. For examPle, white
candidates in Durham were successful with
only 5t of the votes cast by blacks in
1978 and 1982, in ForsYth, white can-
didates in 1980 who received less than 2t
of the black vote brere successful, and in
ttecklenburg in 1982, the leading white
senate candidate eron the general
election although only 5t of black voters
voted for him. Id. See, JA 244.



63

tunit,ies afforded to whites can only be

resolved by a distinctly local appraisal

of all other relevant evidence '

These comPlex Possibilities make

clear the wisdom of Congress in requiring

thaE, a court, hearing a section 2 claim

must consider "th.e totality of gircum-

stancesr" rather t,han only considering the

extent, to which minority voters haver oE

have not,, been underrePresented in one or

more years. Congress neither deemed

conclusive t,he election of mi norit'y can-

didates, nor directed t'hat' such vic-

tories be ignor"d.70 The language and

legislat,ive history of section 2 recognize

the potential significance of the election

70 As in other areas of civil rights, t'he
results test in secti-on 2 no more requires
proof that no blacks ever win elections
Ln"t the effect rule in Title VII requires
thaE no blacks can ever Pass a Particular
non-job related t,est. See Connecticut

". r6ii, 457 u.s. 440 (1982):-



64

of minority candidates, but require that

the significance of any such elections be

carefully assessed from a loca1 vantage in

order to determine what light, if ooYr

those events shed, in the context of all

relevanL circumstances, on the section 2

claim at issue. '

II. THE DTSTRTCT COURT REQUTRED NqrqHEE
P

ffil-fficcess

Appellants flatlY assert that the

district courE in this case interpreted

section 2 to 'creaeIe] an affirmative

entitlement, to proportional representa-

tion". A. Br. 19. The discricE court

opinion, however, simply contains no such

construction of section 2. On the

contrary, the lower court exPressly held

thaE section 2 did not require pro.oor-

tional representation, emphasizing that

" the fact that blacks have not been



65

elected under a challenged discricting

plan in.ru*O"t" proportional to their

percenEage of the population" ndoes not

alone establish that vote dilution has

resulted. " JA 17 -

Appellant,s suggest in the alternative

t,hat Ehe dist,rict court "apparently"

equated the equal opportunity required by

section 2 wi t,h "guarant'eed electoral

successr' A. Br. 14, 15, 35. Again, how-

ever r t1o such rule of law is espoused i n

any portion of the opinion below' The

.ultimate factual findings of the district'

court are not cast in t'erms of the lack of

any such guarantee; rat,her the trial court'

concluded that section 2 had been violated

because minorit'y vot,ers had "less oPportu-

nity t,han do ot.her members of the electo-

rate to part icipate i n the poI itical

process and t'o elect representat'ives of

their choice. " JA 54.



56

The Solicitor argues t'hat, because

the facts as he personally views them did

not, violate section 2, the three trial

judges must have been aPPlying an incor-

rect,, €llbeit, unspoken, i nterpretation of

section 2. Thus the Solicitor asserts t'hat

since the trial court'
could not reasonablY have found a

violaEion under Ehe ProPer "'
standard, titl rather must impl-igitlY
have sought to guarantee conEinued
minority electoral success.. (U'S' Br'
II, 7l (EmPhasis added).'r

But, the district court, whether or not' the

Solicitor thinks it reasonable, found as a

matter of fact that blacks do not enjoy

t,he same opportunit,y as whites to partici-

pate in the PoIitica1 Process. The

71 See also U.S. Br. I, 12 (in light of
Sol icitor ' s v iew of the f acts , mis i nt'er-
pretation of t,he law is "the only expla--nation for the district court,f s conclu-
sion", 18 n.19 (district court "ineffect"
interpreted section 2 as impoling a

"proportional representation plus' st'an-
dard).



67

Solicitor's argument is simply an attempt

to transform a disagreement about the

relevant facts, a disagreement in which

the trial court's findings would be

subject to RuIe 52, into an issue of law'

IfthetrialcourtIsfactualfindingsare
clearly erroneous they cEol of course' be

reversed on appeal. But if both those

factual findings and the 1egal principles

announced by the district court are sound'

the resulting judgment cannot' be over-

turned by hypothesizing that the three

trial judges here were Purposefully

applying legaI Principles different than

those actually set forth in their opinion'

Although the trial court expressly

co ns t,rued section 2 not to require

proportional representation, appellants

suggest, A. Br. 19-20, that the lower

court impl icitly announced that it !'as



68

applying just such a requirement in the

following Passage:

The essence of racial vote dilution
in the White v. Reg-e-ster sense is
ini"i-trrffiuse of thb
interaction of substant'ia1 and
p"."istent racial polarizat'ion in-voting patterns ( racial bloc voting )

with -a -challenged electoral mechan-
ism, a racial minoritY with dis-
tincE,ive grouP interests that are
capable oi aid or amelioration bY
goiernment is effectively denied. the
iolitical Power to further those
interest,s Inat numbers alone would
pi."umptlYely, :..".^gnited Jewish
orqanizat:'ons v - r-a-iffi '4-63-ilC
ffi ve it. i-n_ a

voting constituencY not raciallY
poLarized in its voting beh-a-v19l'
See Nevett v. Sides, 571 F'2d 2091
7ttffi1978). JA 16.

This pass69€ r which is immediately

preceded by discussion of the t'otality of

circumstances t,est, and Eollowed by an

exposition of the statutory disclaimer

prohibit,ing ProPortional representation,

asserts only Ehat, in the absence of vote

dilution, black voters would.oossess the



59

ability to influence [he policies of their

elected officials, not' as appellants

claim, that black voters would be certain

to elect black officiaLs "in proportion to

their Presence in the population" ' A' BE'

The Portion of llevett v ' Sides
20.

referred to by the dis'trict court dis-

cusses t'he extent to which black voters'

in the absence of polarized voting' would

have the political power to assure that

Eheir interest's were protected by white

of f icia Ls.72

APPeIlees in this

and the trial court did

case did not seekt

not requir.rT3 any

72

73

-""ggg "r tta"", 571 F'2d at 223 n'15'

Indeed appellant's Pro,posed. the plan.now in
;;re;-i6t uii-t'nt districEs at issue'
irri"n- ".t aiopted by the court without
,r"Jiii"ation. see suPra' at 5-5'



70

guarantee of ProPortional rePresentationt

and proportional representation did not

result from the decision below.74

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

In determining whether a method of

election violates section 2, a trial court

must ev.aluate "the extent to which voting

in the elections of the state or political

subdivision is racially polarized.' S.
,tr

Rep. at 29.' ' The court below evaluated the

74 prior to this litigaEion only 4 of the 170
members of the Nort,h Carolina legislature
were black; today there are sti1l only 16
black members, less than 101, a far
smaller proPortion than the 22.4t of the
populat,ion who are blaek. WhiEes, who are
75.8t of the state population, stil1 hold
more than 90t of the seat,s in the legis-
lature.

75 Racial bloc voting is significant in a
section 2 case because, in t,he cont'ext of
an electoral structure wherein the number
of votes needed for election exceeds the
number of black voters, iL substantially
diminishes the opportunity for black
vot,ers to elect candidates of their



71

lay and expert testimony on this question

and found rthat within all the challenged

diserlcts racially polarized voting exists

in a Persistent and severe degree.'' JA

40. Appellants argue t'hat t'his f inding is

erroneous as a matter of Law'

APPellants, A. Br. 36, and the

Solicitorl U.S. Br. II 39, contend that

the court erroneously defined racially

polarized voting as occurring "whenever

less than a majorit,y of whit'e voters vote

for the black candidate'" But the

district courtr guided by the Senate

report and in accordance with the expertss

for aPpellants and appellees, in fact'

defined racially polarized voting as the

choice, and it al1ows white candidates to
ig nore' the i nterest,s- of . Et. OJacl_:?i;
.iniiy and still get elected-. g-^glt:g'd;;;'" ;:' c;;;ie ni 

-eroqucts co'lT0z-6;r

judge court).



72

exte nt t,o which black and white voters

vote differently from each other in

relation to t,he race of the candidates.T6

The court focused not onlY on the

existence but the degree of polarized

voting. As articulated by the court, the

relevant question is whether a .substantial

enough number of white citizens do not

vote for black candidat,es r so that the

polar Lzation operates, under the election

method in question, Eo diminish the

opportunity of black citizens to elect

candidates of t,heir choice. JA 16-17, 43'

76 Senate Report, 29; JA 40r n.29, JA 123.
T. 1404. See also City of Rome v. United
States, 446 U.S.
5ffiing 472 F. SuPP. 221 , 226 (D.D.c.
1g7g) ('Racial bloc voting is a situation
where, when candidates of different races
are running for the same of f ice, t,he
voEers will by and large vote for the
cardidate of Eheir own race. ) " Accord, 128
Cong. Rec. S7120 (Sen. DoIe)(dai1y ed.
June 18, 1982).



73

This inquiry is plainly consistenE with

the statutory language of Section 2'

A. SummarY of the Distrig!-9gurtrs
- --_----- - 4

Fi ndi ngs

The District Court examined a number

-of factors in determining that voting was
GJ

severelY raciallY Polarized'

1. The court examined the Percent-

^g"77 
of white and black voters who voted

for t,he black candidates in each of 53

. primaries and general elections in which a

black candidate had run during the three

election years prior to the trial ' JA

43-48. The court found thatr oo the

average ' 81 .7t of whit'e voters d id not

77 apPetlants conceded that' the method used
tb-assess t,he extent, of racially polarLzed
votsing is standard in the 1it'erature and
t,hat the st,atist,ical analysis performed by
appellees' expert was done accurately, JA
131-2, 281 .



ia

74

vote for any black candidate in the

primary elections, dd "approximat'ely two

t,hirds of white voters did not vote for

black candidat,es in general elections even

after the candidate had won the Democrat'ic

pr imary and the only choice was 'to vote

for a RePublican or no one" JA 42'

2. The district court determined how

oft,en the candidates of choice of white

voters and of black voters were different'

Although, in primaries' black voters

ranked black candidates first or first and

second, white voters almost always ranked

t,hem last or next t'o the last ' JA Ex '

VoI. I Ex - 5-7' In general elections'

wh i te vot'ers almost always ranked black

candidat'es either last or next to last in

the multi-candidaLe field excePt in

heavily Democratic areas' in t'hose latter'

'white voters consistently ranked black



75

candidates last among Denocrats if not

last or next to last among all candi-

dates.' JA 42. If white voters as a

grouP are selecting different candidates

than bLack voters as a grouP' assuming

black voters are in a minority' the

polar izat, ion d iruinishes the chances that

ih" black voters' candidat'e will be

elected . JA 132-1 36 ' In f act ' t'he court

found that in all but two of the election

contests, the black candidates who were

the choice of black voters v'ere ranked

las t, or near last such that t'hey lost

among white vot,ers. JA 42, n' 31 ' 
78

3. The court considered statistical

analyses of t,he degree of correlation

bet,ween the race of voters and Ehe race of

candidates whom they supported' The race

of t,he vot,er and the race of a candidat'e

78 rn describing
used the term
cant'. JA 41-2-

t,his analYsis the court
"subsEantivelY signif i-



76

were very closely correlated'79 The court

found that the ProbabilitY of such

correlations appearing by chance was less

than 1 in 1OOr0O0. JA 41 and n'30'

Appellantsr expert agreed with this

deternination. JA 281.

B. The Extent of Rqcl-ql- Polar,.iza!ion was

Won

I n add i t io n t'o their mischaracter Lza-

tion of the courtrs analysis, appellants

propose a novel standard for assessing the

degree of polarized voting ' Appellants

co nte nd that racial Polarization of

voting has no lega1 significance unless iL

79 Expert witnesses for appellants and

"p-p"11ees 
agreed that the correlat'ion

"bltficient 
is the standard measure of

whether black and white voters vote
differently from each other' JA 1291
281. Correllcions above an absolute value
of .5 are relatively rare. The corre-
lations in this case had absolute values
between .7 and .98, with most above '9' JA
41 , n.30.



77

always causes blacks to 1ot"'80 A' Br' 35'

40. Under appellantsr standard' a theory

not, adopt,ed in any voEe dilution case they

cite r aoY minority electoral suecess

precludes a finding of racially polarized

voting and bars a section 2 violation' a

result clearlY cont'rary t'o

Congress. E S. ReP' at

pp. 50-5 4 , .:9P,!3. Appellees know of no

the intent of

29, n.115 and

ffiitor General does not' adoPt
ipp"l lantJ' proposed st'andard ' but
articulates ttie inquiry as whet'her. trthe

impact of racial bloc voting in comolna-
iiirn with the challenged procedure --here'
multimemuei district's :- deprives black
voters of equal access to the e'l ectoral
pio-"-"r=..." ir.S. Bt. 31-32' Assuming that
[n" s"ricitor-General includes with "equa1
access to tLe electoral process"-' as the
iiiiuto.y language of s-ection 2 doesr dD

equal "piroiloi 
iti t'o .elect gandid3tes of

black ,rol"t" I - choice r the Solicitor
General a"." not disagree with the
district courtts conception -of. the
question. The Solicit'or General simply
d isagrees 'ritf, the district court I s

f inding of fact as to it's anstlrer'



78

court which has adopted appellants I

proposed sEandard in a section 2 case.

Other courts have found Polarized

voting sufficient t,o suPport a violation

of section 2, desPite a finding of some

electoral success. In Mclli11an v.

Escanbia County,748 F.2d 1037, 1043' 1045

( 1 l th Cir. 1984) (ltclrillan II) , the court

found racially polarized voting and a

violation of section 2 despite some black

electoral success, based on a finding that
oa consistent majorit'y of the whites who

vote will consistently vote for the

black's opPonent.' See al so lla jor v .

Treen, 574 F. SuPP. at 339.

In fact, in 65t .of the election

contests analyzed here in which the black

candidate received substantial black

support, t,he black candidate did lose

because of racial polarizaEion in voting.



79

That is, he lost, even though he I'as the

top choice of black vot'ers, because of the

paucitY of support among white voters'

Appellantsr statement' that "two thirds of

al l bl ack ca nd ida t,es have bee n success-

ful", A. Br. 45, is misleading since it

only count,s black candidates who made it

t,o t,he general elections and ignores the

many black candidates who lost in the

Democratic primaries. Furthermore' of

white Democrats who made it' to the general

electionr 1O0t were successful in 1982'

and about 90t were successful in earlier

election years. JA Ex. VoI. I Ex' 13'

APPellants relY on Rogers v' Lodge,

458 U.S. 613 ( 1982)'and t'do Post-I$iE

lower court cases, all involving claims of

discriminatoryintentundertheFourteenth
Amendment. We do not read the cited cases

to hold Ehat racial polarizaEion is

legalIy significant only if it' uniformly



80

causes electoral defeat.81 BuE this Court

need not consider, in the context of this

case, whether appellantsr bold assertion

is correct. Assuming arguendo t'hat proof

of absolute exclusion may be necessary to

rai.se an inference of discriminatory

intent, it is not necessary to show that

black citizens have nless opportunit'y"

than do whites to e1ect, candidates of

their choice in violation of the result's

standard of section 2-

81 The lower court in Rogers v. Lodge found
racial bloc voting based upon an anarysrs
that included an election in which a black
had won a cit,Y council seat. .p5]gg3
Buxton, Civ. No. 175-55 (S.D. Ga' Oct'
26'7'fr8) slip. oP. at 7-8- rn NAAC-P v'
Gadsden Counc-v Scliool Board , 69t FIZETA
i ing of uncon-
stitutional vote dilution u'as upheld
despite the elect,ion of one black can-
didite to the school board, a leve1 of
electoral success similar to thaE present
here in House District 21 and House
District, 35.



81

Appellees Were not Re-q-q11ed to PEqYe
t

APPe 11a nt,s contend that proof that

white voters rarely or never vot'e for

minorit,y candidates does not establish tlre

presence of polarized voting' Rather, they

urge , a plai ntif f must' 'adduce probative

evidenceofthemotivesoftheindividual
white voters at issue, and must establish

that those vot'ers cast their ballots with

a conscious intention to discriminate

against minority candidates because of the

race of those candidates.32 A. Br' 42-44'

82 appetlants argue in particular that proof
o?-nrotives of ihe elect,orate must take the
form of a multivariate analysis' (App'Br'
43-44). No such multivariate analysis was

tiesented in whit,e v. RegesEer or any of
ir,e otner diiumh congress
ieferred in adopting section 2' Although
aPPelIants now ur99 t,hat' evidence of a

muitivariat,e analysis is essenE'ial as a

natter of law, no such contention was ever
nade to the district court.



82

This proposed definition of polaiized

voting would incorporate into a dilution

claim Precisely the intent reguirement

which Congress overwhelmingly voted to

remove from section 2- The legislative

history of section 2 is replete with

'unqualified statements t,hat no proof of

discriminat,ory intent would be required in

a section 2 ease, and Congress' reasons

for objecting to t,he int,ent requirenent in

Bolde n are equalJ.y aPPl icable t'o t'he

intenE requirement now proposed by

appel1ants.83

83 tne reasons set out in the Senat,e Report
for rejecE,ing any int,ent requirement were
re i te?at,ed by i ndividual members of
Corgress . Se nate Report 1 9 3 ( add it ional
vieis of Sen. DoIe); 128 Cong. Rec. (daily
ed. June 9, 1982) 55550-61 (Sen. Kennedy);
128 Corg. Rec. (daily ed. June'15, 1982)
56779 (Sen. Specter); 128 Cong. Rec.
(dai1y ed. June 17, 1982) S6931 (Sen.
oeConCini); s5943 (Sen. Mathias); s5959
(Sen. [lathias); 128 Cong. Rec. (daily ed.
June 18, 1982) S7109 (Sen- Tsongas); S7112
(Sen. Rieg1e); 57138 (Sen. Robert Byrd).



83

Congress opposed any int'ent require-

ment, first, because it believed that the

very litigation of such issues would

inevitably stir up racial animosities'

insisting that inquiries into racial

motives .ocan only be divisive ." Senat'e

Report, 36. Congress contemplated that

under the section 2 results test' the

courts would not be required to "brand

individuals as racist'" Ig' The divisive

effect of litigation would be infinitely

greater if a plaintiff were required to

prove and a federal court were to hold

that, the entire whit'e citizenry of a

community had act'ed with racial motives '

Second, Congress rejected the intent'

test, because it created "an inordinately

difficult burden for plaintiffs in most

cases.' (S.Rep. 36) The Senate Committee

expressed particular doubts about whether



84

it might, be legalIy impossible to inquire

into the motives of individual voters'

19., and ref erred to a then recent Fifth

Circuic decision holding thaE, the First,

Amendment forbade any judicial inquiry

into why a sPecif ic vot,er had voted in a

particular way.84 Congress thought it

unreasonable to require plaintiffs to

establish the mot,ives of local of f icials;

establishing the motives of thousands of

whit,e voters, none of whom keeP anY

records of why they voted, and all of whom

are constitutionally immune from any

inquiry into t,heir actions or notivat,ions

in casting their ballorsr85 would clearly

84 rd. 3G n.135,
Ta-cksonr 699

citinq Kirksev v. CitY ofr4+
F.2d 317 ( 5th Cir. 1 982 ) ,

ETfrTrVinq KirkseY v. Cit,v of Jackson, 663
F;Zr65q-I

85 See also Anderson v. i'lills, 554 F.2d 600,
-6AA=9-( 6ffi o u ! b a_l_ame d a
Spanish Speaki ns ors . vleffiE-tJ-fri6;

6ilT-t,ea states v. Executive Committee of



85

be an infinit,ely more difficult t'ask'86

Counsel for aPpelLants contend that

the Plaintiffs in a section 2 action

should be required Eo establish the

noEives of white voters bY means of

stat,ist,ics, but at' trial appellants I

statistician co'nceded it would be impos-

sible to do "o.87

85

254 F. SuPP. 543 | 546 (S'D' Ala' 1965) '

The courts have consisten!1y-entered
ii.aingi- of racially gglarized voting
;iih;"i imposing tnJ additional burdens
no* ors.d by "pp6ttunls. Pee. gig.g.1-le+
nepubl-ican Executive-9gmmittee v' BrooKS'

t

IEmmary alflfirmance of district court
using co-rrelat,ion test) . S?",1I"o=.1??9I"
v. Lodqe, supra, 458 U.S' et 623; MarePgo

ffi ,PFJ Jt J," :i?e..-s!s,"r'rs"; : ;e-iffa mem' 459

u.s. 801 ( 1e82l ;- 9iSY. ".E-@'unired st,ares,' sT7-@z
ffiiggt), aff 'd 459 u.s. 159
(1982).

appellantsr expert.t,est'.if ied t'hat many of
t'tr'e rr"tiablei which he considers im-
poit"nC, such as a candidat'e's skills or
poi:.ti.ons on Ehe issues, are not quanti-
iiaUte. He did not suggest how such an
inafVsi= could be Performed, and he

87



85

Third, Congress regarded the Presence

orabsenceofadiscriminatorymotiveas
largely irrelevant to the problem with

which section 2 was cQncerned' Senate

Report 36. The motives of white voters

are'equalIy beside the point' The central

issue in a dilution case is whether' not

whyr minoritY voters lack an equal

opportunity to elect candidates of their

choice.

In appellant's view, polarized voting

occurs only when whites vote against black

candidates because of their race' but not

whenwhitesconsistentlyvoteagainst
black candidates because those candidates

conceded he had never performed one' T'
7-eio, 1450, JA 283. Even l[9c-I-99Ee.Y.i'
zant, 580 r--6lpp. 338- (.N'E-rca._Ty$2ff 'ffie,-iil F.2d--877 (sth cir' 1985)'
ffi'p.naing, No. 84--, oo which

"ffii"ntffi, hords t'h?Euch resres-

"ion analyseJ are incapable of demon-
strating iacial int'ent wherer 3s herer
;n-uaf itativen nonquant i f iable d i f f ere nces

aig involved- 580 F. SuPP' at 372'



87

are not able to purchase expensive media

campaigns or obtain endorsements from

local newsPapers. The reasons appellants

present as a legiEimate basis for whites

not voting for black candidates are almost

invariably race related' In the instant

case , fot example, the inability of black

candidates t,o raise large campaign

cont,ributions had its roots in the

discriminationt'hathasimpoverishedmost
of the black communit'y. An election system

in which black candidates cannot win

because their supporters are poor t ot

because 1oca1 newspapers only endorse

whites, or because of whiEe hostility to

any candidate favoring enforcement of

civil rights laws, is not a sYstem in

which blacks enjoy an equal opportunity to

part,icipate in the political process or

elect candidates of their choice'88

88 Moreover, to require a district court to



D.

88

The District Court I s Findlqg-o:[
a

Based on !h" analysis summarized in

Part I I I A, supra., the triaL judges found

"that in each of the challenged districts

racial .polarization in voting exists to a

substantial or severe degree, and t'hat in

each district it presently operates to

minimize the voting strengt'h of black

voters.' JA 48.

The SoI ic itor contends t,hat the dis-

EricE court ignored possible variations in

the extent of polarized voting, asserting

determine which ostensible reasons are
legitimate and which are race related
would be exactly the type of subjective,
motivational analysis Congress sought to
avoid. If such an analysis were relevant,
even the Solicitor General agrees that it
is rpt necessary in order to establish a
prima facie case, but it is the defen-
dants t burden t,o Prove it on rebuttal .

U.S. Br. 30, n.57. Accor{, Jones v.
Lubbock , 730 F.2d nT,-fri (EE'--ej=-
Fs4lGigginbotham concurri ng ) - No such
evidence sras of fered here.



89

the district court adoPted a de-
finition of racial bloc voting
under which racial Polarization
is "substantivelY signif icant"
gr " severe tr whe never i t'he
results of the individual
election would have been
different dePending uPon whet'her
it had been held among onlY the
white voters or onlY t'he black
voters in the election. U'S' Br'
r, 29.

The Solicitor argues that' under this

def inition elect,ions in which only 49t of

whites voted for a black would be held to

be "severely racially polarized" u's'

Br. 29. (Enphasis in original ) ' This

argument rests on a misrepresent'at'ion of

the language of the opinion below' The

quoted reference t,o differences in the

preferences of black and white voEers

appears on Page JA 41 o f t'he opi nion,

where the district court correctly notes

the presence of such differences in this

case. The t,erm "severe" does not appear in

that passage at all, but is used on the



90

next page in a separate paragraph to

describe elections in which 81.7t of white

voters declined to vote for any black

candidate. JA 42. The opinion of t'he

district court clearly distinguishes the

presence of any dif f.erences bet,ween black

a nd wh i t,e voters . f rom a case i n wh ich

whites overwhelmingly opposed t,he candi-

date preferred bY black voters, and

equally clearly charact,eri zes only the

latter as 'severe.'
The PrimarY evidentiarY issue

regarding polarized voting that must be

resolved in a section 2 dilution case is

whether the degree of polarization was

sufficiently severe as to materially

impair the ability of minoriEy voEers to

elect candidat,es of their choi.".89 In

89 while appellants do not, challenge the
method appellees' expert used t,o analyze
the election returns in generaI, JA 1 31-2,
281 , appellants claim that apPellees'
regression analysis is flawed by what



91

concluding that such impairment had been

shown, the court relied on the ext'ensive

f act f i nd i ng s noted above, i neluding t'he

fact, on average 81.71 of white vocers do

not voE,e for any black candidate in a

primary electlon. The polarization was

most severe in House District 8 ' where an

average of 92-7X of white voters do not

vote for any black candidate in a primaryr

JA 47-48i t,he dist'rict court correctly

they labeled the "ecolog-ical fallacy'"
Tii;i issert that instead of using turnout
f ig-ures r aPPellees t expert used voter
i"iilttati6n figures. A' Br' 41' Not
;;iy-;; Ehis irsument made to the
ais€rict court and iejected, JA 40,- ! '29 ';;t-;l;o it is not, accurate. Appellees'
experE,, Dr. Grofman, did have turnout
;i;;;.; for each PrecincE, and he used a

ie6il""i"n analysis to calculat'e t'he
Luinout figures bY race: Px 12 at PP'
i-g. rn fac1, appeilantsr expert' ldm-it'ted
in.t he did nbl know whaE method Dr'
GroEman used t,o calculate turnout ' JA
Zli-AO, and he, therefore, could not
exPress an opinion about' the accuracy of
the method.



92

noted thaE in that, district it was

mathematically impossible for a black

candidate ever to be elected. JA 48.

. In t,he other district,s, the degree of

polarization was sufficiently severe to be

a substantial impediment,, slthough not

necessarilY an absolute bar, to the

election of minority candidates' The

average portion of white voters willing to

. support a black candidate in a primary was

1 8t. The proportion of voters that was

white ranged from 70.5t to 84.9t. JA 21'

In each of the disputed districts the

number of white voters who in primaries do

not support, .the black candidate favored by

the black community constituted a majority

of the entire elector.t"-90 Under those

90 Given the sma1l percentage of black
voEers, the f ailure of t,his number of
whites to vote for black candidates
prese nted a substant,ial barrier. The
io*er the black population of the dis-
trict,, the more white voters it takes
voting for the black candidate to make it



o?

circumstances, the election of candidates

preferred by black voters, while not

mathematically impossible, is obviously

extremelY difficult.
ApPellants attack t'he lower court I s

finding of substantial polarized voting by

selectively citing the'record' Of the 53

elections discussed by the trial court'

possible for him to win. Moreover, no
evidence hras Presented to. show that the

"*i"nt 
of racill polarization was declin-

ing. JA 131 | I 40.

Here, while there are a large number of
bi;;icitizens, because they are submerged
ini" such large multimember districts,
they are a smail Percentage of the total
eLettorate. For examPle, in House
District 36 (t'tecklenburg County) , there
are 107 1006 black residents, Px 4-(b), JA
Ex. VoI. II, more t,han enough for two
whol.e House Districts, i4., but because
if,"y "." submerged into-En eig-ht m-ember
a i"i.ict, theY are onlY 26.51 of t'he
population. Because the percenta,ge of. the
i"gi"t"red voters in each of t'he districts
whlch is black is relat,ively 1ow, ranging
from 15t to 2g*, it takes lit't'le polar-
ization to impede materially the lpility
of the black communit,y to elect candidat'es
of its choice.



94

appellants refer only to 8. A. Br' 36-38'

In most instancesr aPPellants emphasize

the election at which white suPport for a

black candidate was the highest of any

election in that district.9l The highest

proportion of white support for minority

candidates cited by appellants were in the

1982 Durham County general elect'ions and

the 1982 ttecklenburg County primary' (A'

Br. 35-37), but there lrrere no Republican

candidates in the 1982 general election in

Durham County, and in the 1982 t'lecklenburg

County primary there were only seven whit'e

candidates for eight positions in the

primary. JA 46, 44. Thus the white voEes

of 47* and 50t in those two races rePre-

sent the number of whites willing to vote

for an unopposed black instead of not

voti ng at all, rather than t,he proportion

91 This is true of examples (a)
(j) in Appellants' Brief.

(b) (h) ( i) and
See JA 152.



95

of whites willing to suPPort in a con-

Eested election a minoriEy candidate

favored by t,he minority comrnunity'

IV. THE DISTRICT COURT FINDING OF UNEQUAL

ELECTORAT OPPORTUNITY WAS NOT CLEARTY

ERRONEOUS

A. The Clearly Erioneous.Rule APplies

APPellants contend that, even if the

d istrict court $ras applying the correct

lega1 standard, the courtrs subsidiary

factual findingsr os well as its ultimate

finding that minority voters do not enjoy

an equal opportunity to elect candidates

of their choice in the disputed districts,

were mistaken. Appellants correctlY

describe these contentions as Presenting

a 'f actua.l question.'92 The lower courts

%. g, . zs, see also id . at 3 5 ( " no matter
how one weights anfrweighs the evidence
fiesented, iL does not add up to "-dgnial6i-"gouI access') , 26 (disputed trial
coutt findings made "in spite of- the
iaccs"), 29 ("[n]othing in the record "'
"opp"tt"' 

a ai!put'ed-finding), 30 n'12



96

have consistently held that' a finding

under section 2 of unequal political

opportunity is a factual finding subject

to the RuIe 52 "c1early erroneous" tult'93

The courts of appeal considering constitu-

tional vote dilut,ion claims prior to

Bolden also applied the clearly erroneous

rule to findings of the trial court.94

93

(testimony re'1ied on by the trial court
iwas simply not credible') , 30 (Plqintiffs
"failed-t,o prove" a subsidiary fact).

Col1:ins v. City of Norfo-Ik, 768 F.2d 572,
, 1985) (s1ip

opiniron, P. 4) i I'tccarty q:--Eenson , 7 49
i:te rri4,-r3lis -

ciry of r,ubbock ) lzt F.2d 364, 37F56'o
m), velasquez v. City of
aUif€D€r 725 g.Za
TYgZTf-uni ted states q.-{qlq.ngg !egn!
Com' n,
Tf,ff): Buchanall v. Citv of Jacksonr TOg
r.ia ioeC1f'Zfffi

94 Parnell v. Rapidas Parish School Bd., 553
lr.ifi377l;--endrix

v. Jose-p1, 559 r'. Za 1265, '1269 ( StT-ffi
fq-?f-Mcci11 v. Gadsden County Comission,
cis F. t fiBTIGiTEEt535 F.2 ); Gilber
v. Sterrett, 508 F.2d 1389-, 13f5-l:5€5'
6r;-Tf75-)Fimmer v. McKeithen, 485 F-2d
at 1302 n.8@, 1309-10
(CoIeman, J., dissenting), 1314 (Clark,



97

Until recently the United States also

maintained, that absent any failure to

apprehend and apPIy the correct lega1

standards, a finding of unequal electoral

opportunitY under section 2 t"'as a

factual finding subject to RuIe 52(a)'
95

F. R. Civ. P .'-
The Solicitor General now asserts'

however, that Rule 52 does not' apPly to a

f inding of vote dilution under sect'ion 2'

The Solicitor acknowledges that the

determination of a section 2 claim

"requires a careful analysis of t'he

challenged electoral Processr ES informed

by its act,ual operation'" U'S' Br' II'

18. But, he urges that the ultimate

f inding of t,he trial court based on that

J., dissenting).

See Brief for the United States, United
*t n-11ra r'arrhi.rr eammi ssiOr;-TTEE'SEEt"" r. Dallas-County Commissign,

95

t2 ,1 983 )

p. 26.



98

may be reversed wherlever an

court views the facts dif-
analysis

appel 1 ate

ferently.
The arguments advanced bY the

Solicitor do not justify any such depar-

ture from the principles of Ugsrson %-

City of Bessemer Cit-y-, 84 L.Ed.2d 518

(1985). A number of the cases relied on

by the Solicitor General invoLved simple

matters of statuEory constructionr96ot the

meaning of a constitutional right where

the facts were not in disPute.gT

In Bose CorP. v. Consumers Union, 80

t.Ed.2d 502 ( 1984) this Court declined to

apply Rule 52, but it did so only because

the Constitution requires appellate courts

in First Amendment' cases to undertake 'an

95 uetropolitan Edison Co. v. PANE, 450 U.S.
v.

Nationr S5'L

97 Strickland v. washington, 80 L.Ed.2d 674



99

independent, examinaEion of the whole

record.n 8O L.Ed.2d at 515-25' The

Solicitor suggests that the special

standard of appellate review in Bose

should be extended to any st'aE'utory claim

in which 'rthe stakes ... are too great to

entrus t them f inally to t'he judgment of

the trier of fact." U.S. Br' II 19' But

this Court has already applied Rule 52 to

Fourteenth Amendment claims of purposeful

discriminat,ion in votin9 r98 to claims of

discriminatory efEect under sect'ion 5 oE

the Vot i ng Right,s Act r 
99tnd to claims

arising under Title VII of the 1954 Civil

Right,s Act,.100 th" nstakes" in each of these

areas of the law are surely as great as

98 Hunter v. Underwood, 85 L.Ed.2d 222, 229

' 9998' at 622-23'

99 citv of Rome v. united st,a'!esr 446 u's'

l oo r suPra;



100

under Section 2. 95.. Alyeska PiPeIine

Service v. Wilderness Society, 421 U'S'

240, 263-64 (1975). As this Court emph-

asized in WhiEe v. Regester, a district

court cal1ed uPon to resolve a vote

dilution claim occupies " its ov'n special

vantage point' from which to make'an

n intensely local aPPraisal' of the

existence of racial vote diLution.10l 412

101 The application of RuIe 52 is particu-
larly a-p-propriate in a case such as this
wherL ifre appellants' brief is replete
with controverted or clearly inaccurate
factual assertions. For examPle, appel-
lants state without citation, "In HaIifax,
several blacks have been elected to the
County Commission and t,he City Council of
noano-ke Rapids. " A- Br. 11 . This is
false. No black had ever been elected to
either body. JA 233. eppellants state,
"The Chair of t,he t'lecklenburg County
Democratic Executive Committee at the time
of t,rial and his immediate predecessor are
also bIack. SEiP. 126'n A. Br. 8.
Stipulation 125 actually says-r'rThe
immeaiate Past Chairman of t,he t'lecklenberg
County Democratic Executive Committee, Eor
the term from 'l 981 through llay 1983, i''as
Robert Davis, who is black- Davis is the
only black Person ever to hold that
ffition." JA 105. Appellants sE,ate that
; tf Forsyt,h County were 'divided into



101

U.S. at 769.

From "its own special vantage pointn

the court here made det'ailed and extensive

fact findings on virtuaLly alL the factors

the Senate Report thought probat'ive of a

sect,ion2violation.Thefindingsofthe
district court involved six distinct

multi-member districts, the circumstances

of which were of course not Precisely

identical. Appellants neither contend that'

these differences are of any importance or

suggest t,hat the trial court I s ultimate

finding of unequal elect'oral oPPortunit'y

under the totality of circumstances is any

single member House districts' one
aisirict with a population over 65t black
could be forned-- Stip . 129'n APP: Br'. 9'
itipulation 129 in fact' s3y? that tYo
*ij6iity black districts could be formed'
ia' t os.- The omiss ion is particularly
aecept-ive since the remedy p-roposed by
.pp"ilants, which was accePt'ed u.nch-anged

U'y Lfr. d i s tr i ct, court , co nta i ned two
aistricts in Forsyth County which are
*ij"iity black in voter registration'



B.

102

lessjustifiableinanyonedist'rictthan
in the others. Rather, apPellants advance

objections which they cont'end are equally

applicable to all the districts at issue'

Appellants att,ack the d isCrict court I s

ultimate finding by generalLy challenging

each of the subsidiary findings on which

it is based. A. Br. 25-34.

Evidence of Prior Vot-Lqg
DrscrlmlnaE,lon

The district court, after describing

the long North Carolina historY of

official discrimination intended t'o

prevent blacks from registering to vote'

as well as some relatively recent efforts

to counteract the continuing effects of

t,hat discrimination, concluded:

The Present condition ..'' is
t,hat, on a state wide basis,
black voter registration remains
depressed relative to that of
the white majority, in Part at'
least because of the long Period



103

of official state denial and
.nilf ing of black citizens'
;;;istrition efforts ' rhis
siitewiae dePression of black
voter registration leve1s is
generaffY- rePLicated in the
areas of- the challenged ai:-
tricts, and in each is t'raceable
in Part at least' Eo the histori-
cal statewide Patt'ern of off i-

"iir 
discriminaElon here found

to have existed. JA 27-28'

Such disparities in black and white

reg istration ' roo E,ed i n Pas t' a nd pre se nt

discrimination, is one of the factors

which Congress recognized put's minority

votes at, a comparative disadvantage in

predominantly white multi-member dis-

tricts. Senate RePort 28'

APPellants conceder ds theY must'

that it was for decades the avowed policy

oE the st'ate to Preve nt' blacks f rom

registering to vote. A' Br' 25' The

district court noted, for example, that in

1900 the state adopted a literacy t'est for

the avowed Purpose of disfranchising black



104

voters, a,nd that that test' remained in use

at least until 1970. JA 25' APPellants

arguer os they did at trial, that all

effects of these admitted discriminatory

reg istration practices t'ere entirely

eliminated because recent state efforts to

e1 imi nate those e f f ects i'h"'" bee n so

successful.' A- Br. 27. The district

court, however, concluded that recent

registration efforts had not' been suffi-

cient to remove "the disparity in regis-

tration which survives as a legacy of the

long period of direct denial and chilling

by the state of registration by black

citizens' JA 27 -

The district court's finding is amply

supported by the record below' In every

county involved in this litigat'ion the

white registration rate exceeds that of

blacks, and in many of those counties the

differential is far greater than the



105

st,atewide disparity.'o' g. at n'22' Even

appellants t witnesses acknowledged that'

this disparity was unaccePtably great'' Px

40, !.575-77, 1357i JA 199' There was

direct test'imony that t'he history of

mistreat,mentofblackscontinuedto'deter
blachs from seeking to register' JA 175'

188-89, 211-12t 220-25, 229, 242'43'

APPellants contend that in the last

few years the state board of'elections

has taken steps t,o register blacks who

might have.been reJected or deterred by

past praet ices ' A. Br. 26 ' But t'he state r s

involvement did not begin until 1981' and

t,he record was repleEe with evidence t'hat'

long after the literacy test ceased to be

102 rn 1971, the Year after use of the
discriminatory liLeracy test ended, 50'6t
of whites n6re registered, compared to
44.41 of qualified blacks' As of 1982
that regiltration gaP had on1y been
slightly narrowed, with 65.7t of whit'es
and 52-.7* of blacks registered' JA 26'



't06

used, locaI white election officials at

the county level pursued Practices which

severely limited the times and places of

registration and thus perPetuated the

effects of past discriminatory Practices'103

Under these circumstances the district'

court was clearly justified' in' finding

that ruinority registration leveLs remained

depressed because of past discrirninatory

practices.

1 03 In a nunber of instances registration was
restricted to the count,y courthouse,
locat,ions thaE especialLy burdened the
large numbers of blacks who did not own
carJ. JA 220-22t 229i JA Ex- vol. r Ex.
37-52. Local election officials severely
limited the activities of voluntary or
part-t,ime regisErars, only allowing them,
for example, to register nel, vot'ers
outside hiE or her own precinct when the
state board of elections required them to
do so. T. 525, 553-55; JA 212t 222-24.



107

Evidence of Economic and Educational
ETEtlva nEagiEs

The district court concluded that

minority voters were substantially impeded

in their efforts to elect candidates of

t,heir choice by the. continuing ef f ects of

t,he pervasive discrimination that af-

fected, and to a significant degree

continues E,o affeet, every aspect of their

Iives. JA 28-31 .

The court concluded that Past'

discrimination had led to a variet'y of

social and economic disparities'104 such

104 '15s mean income of black citizens was only
54.g1 t,hat of white cit'izens. Approxim-
ately 30t of all blacks have incomes below
the ploverty leveI, compared to only 10t of
whi€es; cbnversely, the proportion of
whites earning ovel $20,000 a year is
twice that of blacks. JA 30' Since
significant, desegregation did not' occur in
uoitn Carolina until the early 1970's,
most black adults attended schools that'
were both segregated and qualitatively
inferior for all or most of t,heir primary
and secondary education. JA 29 ' See
Gaston Count,y v United S-t-4eqr 395 Uf



108

social and economic disparities were cited

as a major cause of unequal

in multi-membEr districts.
1 o5 Appellees adduced evidence

these disParities in each of

by Congress

opportuni tY

S. Rep. 29.

docume nt i ng

285, 292'96 (1969) - Residential housing
is rigidly segregated throughout the
state ,'JA {9, and is almost total in each
of the challenged districts. T. 268, 648,
739; JA 176-7, 201-2, 219t 240t 263-4, JA
Ex. Vol. II, Px 3a-8a.

1 05 qergress deemed evidence of substantial
sociil arxl economic disparities suf f icient
by itself to demonstrate that blacks would
be at a significant disadvantage in a
majority white district. The Senate
Report directs the courts to presume,
whelre those disparities are present, that
"dispro;rcrtionate education, employment,
incoire ievel and living conditions arising
from past discrimination tend to depress

. minor-ity political participation...n- i!'
29 n. f 1 4. The ProPriet'Y of such an
inference was an established part of the
pre-Bo1den case law expressly ref-erred to
6y Co-fr-, and is an established part of
tne polt-amendment section 2 case 1aw as
well . United States v. I'larengo C-o-qq!y.
ia1- F. 2 5-fr@llrefr
v . Es cambia CountY , 7 48 F. 2d aFfi'ZE;
ffitas county, 739 F.2d



109

the challenged districtsl 06and appellant's do

not disPute t,heir existence'

APPellants attack the district

court t s finding that these undisputed

disparities substantially impeded t'he

ability of blacks to Participate effec-

tively in the political process, asserting

that "plalnt,iffs failed to Prove that

po 1 i t, i c al part ic ipat ion o n t'he Part of

blacks in North Carolina was " ' in any

rray h i ndered. t A- Br. 30. But appellees

i n fact i ntroduced the evidence which

106 Mqsl<lenburg County: T. 243, 436i JA Ex.
Vol. I Ex. 37; JA 77-89'

Durham CountY: T. 647-51, 585; JA Ex'
Vol. I Ex. 39, JA 77-89.

Porsyth County: T. 595-96' 61 1, 73ai JA
Ex. foI. I Ex. 38; llauser deposition 35'
36, 38

Wake County: T. 130, 1216-18; JA Ex' Vol'
I Ex. 40, JA 77-89.

House District 8: T. 701-03' 740-41,742-
44i JA Ex. VoI. I Ex. 41-43, JA 77-89'



,<-:1-

110

appellant,s assert was missing, document'ing

i n detail precisely how the admitted

disparities impeded the elect,oral effec-

tiveness of black voters. That evidence

demonstrated that, the cost of camPaigns

was 'substantially greater in large

rnult,i-member districts, and that compara-

t,ively Poor black voters were less able

than whites to provide the financial

contributions necessary for a successful
. 107campargn. Dtinority voters were far less

likely than whites to own or have access

to a car' without which it was often

difficulr o.*lifiattibrd* r5r**aiis

107 1. 130; JA 177-78, 180-1, 235-5, JA Ex.
VoI. I Ex. 14'11i Hauser Deposition, 35.
There was also more general tesEimony
regarding t,he net impact of these dispari-
ties. JA 168, 213-14i 236-7. see Qavid
v. Garrison, bs3 F.2d 923,927,-t29-f5€h'
ffirc7ilT Dove v. Moore, 539 F.2d 1152,
1154 n.3 rcffiTT76l; Hqqdr-1ql1 v-
Walder , 527 F.2d 44, 50 (7ttiffiTg-fsl .



111

places or regist,ration site" ' 
108 !linority

candidates, living in racially segregated

neighborhoods and a racially segregated

societY, had f ar less oPPortunity t'han

white candidat'es to gain exPosure and

develop support among t'he majority of the

voters who were white.109

APpellants urge E,hat' t'his evidence

was rebutted bY the fact that eight

wit,nesses called by appellees rdere politi-

caLly active blacks. A. Br. 29-30' But

the issue in a section 2 dilution proceed-

ing is not whether any blacks are Part'ici-

'pants'-itt any way in the political Process'

108 T. 634. 685; JA 77i JA Ex. vol' r'Ex'
37-52. bhe district court noted that
25.11 of all black families, compared to
7.3t of whit,e families, have no private
vehicle available for transportat'ion' JA
30.

109 t.792, JA 176-81 , 213-14, 239-



112

but whether those who part,icipate have an

equal opportunity t'o elect cand idates of

their choice. The mere fact that eight or

even more blacks simply part,icipate in the

electoral process does not, by itself ,

support any Particular conclusion regard-

i ng t,he ex i s te nce o f s uch equal opportu-

nity. In this case the instances cited

by appellants as the best examples of the

degree to whi.ch the political process is

open t,o blacks actually tend t'o support

t,he trial courE I s conclus ions to the

contrary. All the sPecific Political
organizat,ions which aPpellants insist

blacks are able to participate in are

either civil rights or black organiza-

tions;110only two of the individuals cited

1 1 0 169 organi zat ions refered to by appellants
are the Nash County NAACP, t,he t'lecklenburg
County Black Caucus, the Second Congres-
sional District, BIack Caucus, the Durham
Committee on the Affairs of Black People,
the Wilson Commit,tee on the Af f airs of
Black Peop1e, t,he Raleigh-Wake Citizens



by apPellants held

both Positions h'ere

black single member

113

elective office, and

chosen in majoritY

districts. 1 1 1

D. Evide?c9 of Racial APPeals by White
Candidates

The district court concluded that t'he

ability of ninority voters to elect

candidates of their choice was signifi-

cantly impaired by a st'atewide hisEory of

white candidates urging white voters to

vote against black candidates or against

white candidates supported by black

voEers:

lRl acial aPPeals - in North
iiiof ina Po-liticaI camPaigns
have for the Past thirty Years
b."tt widesPread and Pers ist'ent
. . . . tTl h; historic use of
racial 

- iPPeals in Polit-icaI
"i*P.igns- 

- in North Carolina
p"tiisci to the Present time and

Association, the BIack Womenrs Political
Caucus, .nd Ehe wake County Democrat'ic
Black Caucus. A. Br ' 11-12, 30 '

111 JA 108, stiP. 143; JA 201, 237'



114

... its effect is PresentlY to
lessen to some degree the opPor-
tunitY of black citizens t'o
parE iciPate effectivelY in 

- 
the

bo1 iticll Process and to elect
iandidates - of their choice'
JA 34.

Congress noted that, the use of such racial

appeals to white voters might make it

particularly difficult for bLaek candi-

dates to be elected from majority white

districts. Senate Report 29. The noxious

effects of such appeals are not limited to

the particular election in which they are

made; whit,e voters, once persuaded t'o vote

against a candidate because of his or her

race or the race of his or her supporterst

may well vote in a similar manner in

subsequent races. JA 34-112

112 nThe contents of these materials reveal an
unmistakabte intention by their dis-
seminators to exploit existing fears and
prejudices and to create new fears and

b."Judices" toward black political
partlcipation. Id. According to .a. black
iitness at triEil , one of the biggest
obstacles t,o black candidates is 'con-



115

APPellanEs object that, of the six

elections referred to by the discrict

court as involving racial appeals' only

two occurred within the last 15 years' A'

Br. 32a. But these particular elections

were not, cited. by the triaL court as t'he

sole instances'of 'racial appeals' Rather'

those s ix e.lections were l isted as the

most, bIaEant, examPles, JA 34, and the

opi nion added that " I nJ umerous ot'her

examples of . . o racial appeals in a great

number of local and statewide elections

abou nd i n the record ' ' f1!' Among

the additional instances of racial appeals

documented in the record referred to by

the districE court are elections in

1976, 
1 131 980, 1 14.rd 1982.1 1 5

v i nc i ng the white vot'er that there is
rothing Eo fear from having-blacks serve
in elelctive office." JA 179'

113 T. 330-38r 390-91; Px 44.

114 T. 35G-358.



115

Appellants also urge that the

presence of racial appeals cannot be

proved merelY bY evidence as to the

co.nt,e nt of the advertisements or l itera-

ture used by white candidates; rather,

they assert, some form of in depth public

opinion polI must be conducted to demon-

st,rate what meaning white voters acknowl-

edge attaching to the racist materials

used by white candidates. A. Br. 31 -32'

Pub1ic opinion polls are not, however, the

ordinary method of establishing the

meaning of disputed documents; indeed, if

racial appeals have been effective, the

white voters to whom those appeals were

addressed are unlikely to discuss the

matter with complete candor. Local

federal judges, with Personal knowledge of

115 1. 354, 357-69; JA 164'67i ;JA Ex. vol. r
Ex. 23-26, 35.



117

t,he Engl ish language and the culture in

which they live, are entirely competent to

comprehend t'he meaning of the spoken and

written word in a wide variety of con-

texts, incLuding political appeals' No

public opinion poll is necessary to

understand'the significance of appeals

such as "White people Wake Upn, T. 245-46i

JA Ex. Vol. I Ex . 21 r oE to realize whYt

although typically unwilling to provide

free publicity to an opponent, a candidaee

would publicize a phot'ograph of his

opponent meeting wit,h a black leader ' T'

356-58; JA 166-67, JA Ex. VoI' I Ex' 36'

Indeed, these judges, all North Carolina

natives conversant with local social and

political realities, were able to deter-

mine that recent, racial appeals, while at

times '1ess gross and viruleDtr" JA 33,

"pick up on the same obvious themes":

oblack domination" over "moderate" white



118

candidates and the threat of "negro ru1e"

or "black power" by blacks "bIoc" voting'

rd.116

E. Ev ide nce o,q 
-Po 

1 ar i zS-4-Jo!igg.

The sufficiencY

supporting the district
polarized vot,ing is set

supra

of the

courE t s

out at

evidence

finding of

pp. 88-95,

F The trlaioritv Vote Requirement

The d istrict court found t'hat t'he

majorit,y runoff requirement impaired the

ability of blacks to elect candidates oE

their choice from the disput'ed districts'

JA 31-32. Although no black candidaLe

seeking elect,ion to one of the at-Iarge

115 For example, using a frequent pun for
b1ack, a candidat'e in 1982 in Durham
denounced his black opponent for "bus-
sing" [sic] his "block" vote to t'he polls'
JA Ex. Vo1. I Ex. 23-26-



119

seats has ever been forced into a runoff

becauseofthisrulerA'Br'27't'heissue
at trial was not, whether the runoff rule

had led directly to the defeat' of black

leg islat'ive candidates, but' whether that

rule i nd irectl'y interf ered with the

abil ity of rninority vot'ers to elect

candidates of their choice' The majority

vote requirement has Prevented black

citizens from being elected to statewide'

congressional, and local leveI posit'ions'

T. 958-959, 967, JA 203-4i Dx 48' P' 20'

Theexclusionofblacksfromtheseoffices
has operat'ed indirectly to interfere with

theabilityofblackstowinlegislat'ive



120

elections.117 The courtrs findings have a

substantial basis in the record and

corroborate Congress I concern that in vote

dilut,ion cases, majority vote requirements

are "typical factors" which "may enhance

the opport,unity for discriminat,ion against

the'minority group.n Senate Report at 29.118

117 Because of the effect of the runoff
requirement in state and local officest
black voE,ers were deprived of an oppor-
tunity to prepare for legislative elec-
tionJ by winning local office, of the
possible assistance of minoriEy of-
iicials in higher officerand of a pool of
experienced minority campaign workers.. T.
142, 192t 960, 967i JA 175-77, 179-80.

118 This Court has also recognized the
discriminatory potential of runoff
requiremenEs. 999, e.9., City of Port
Arihur v. unite?-st,atel, {59TFT59

United Stqtes,
iaa u-3.



121

(:. Evidence Regarding Electoral Success

Having identified a number of sPecific

aspects of the challenged at-Iarge sysLems

which i nt,erf ered with the abil ity of

blacks to Participate in the political

process or elect ""naidates 
of their

choice, the district court, examined as

well actual election outcomes to ascertain

t,he net impact of those Practices ' The

court concl'uded:

[T] he success that has been
icfrievea bY black candidates to
dat,e is, standing alone, too
minimal ln total numbers and too
recent in relation to the long
historY of comPlete denial of
anY elLctive oPPortunities t'o
.oiP"1 or even to arguablY
suPfort an ultimat,e finding. that
a Liacr candidatets race is no
Ionger a significant adverse
faclor in the PoliticaI Pro-
cesses of the state either
generally or specir-icalIy in- the
areas of the challenged dis-
tricts. JA 39-40.



122

t'tuch of the argument advanced by- both

appellants and t'he Solicitor General is an

aEtack on this factual finding'

As the f acts st,ood in SePtember,

1 981 , when this action was filed, the

correctness of this finding could not

seriously have been disputed. Prior to

1972 no black candidaEe had gver been

elected from 1ny of the six disputed

multi-member district,s. From 1972'1980 no

black represent'atives served in at Least

three of t,he d istricts; f ar f rom having I

as the Solicitor suggests, a level of

represe nt,ation comparable to t'heir

proportion of t,he populationr at any given

point in time, prior to 1982 more than

two-thirds of the black voters had no

elected black representatives at' aII' In

six of the disputed disericts, with an

average black population of well over 25*,

a total of 30 legislators were elected at'



123

large. Prior to"1982 no more than two

three black candidat,es were successful

any election yeat.1 1 9

Appe1J.ants rely solely on the results

of the 1g82 elections in attacking the

findings of the district court' The

outcome of the 1982 elections, held some

1 4 months afEer the filing of this action'

were strikingly different than past

elections. A1t,hough in 1980 only two

districts had elected black eandidates,

four of the districts did so in 1982' For

t,he .f irst t ime in North Carol ina history

two blacks were elected simultaneously

from the same muIt,i-member legislative

district r E€sult,ing in f ive black legis-
120Iators.

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

1 20 ilg6ough appellees stat,e that seven blacks
erere eleclLa in 1982, two were elected

or

in



124

ApPellants contended at trial that

the 1982 elections demonstrated t'hat any

discriminatory effect of the at-Iarge

systems had, at least since the filing of

the compLaint, disappeared' The district

court expressly rejected that contention:

There are i nt imat'ions f rom recent
historyr P"rticularly from the 1982
elect iUni, that a more s ubstantial
breakthrough of success could be
imminent, ---but there trere enough
obviouslY aberrational asPects
lt"""tt i; the most recent elections
io make that a matter of sheer
speculation. JA 39-

The central issue regarding the

significance of minority electoral success

iswhetherthedistrictcourts'evaluation
of the obviously unusual 1982 election

results $ras clearly erroneous ' The parties

offered at t'rial conflicting evidence

from majority black House district's in
section 5 covLred counties which although
they include some counties in Senate
oisirict 2, are not in question here'
Stip. 95, JA 94i JA 35.



125

regarding the significance of the 1982

elections .121 The evidence suggesting that

the 1982 elections $'ere an aberration was

manifestly sufficient t'o support the trial

court I s conclusion. First r €ts the district

court noted, there was evidence that' white

political leaders, who had previously

supported only white candidates' for the

f irst t,ime gave substantial assistance to

black candidates and did so for the

fficounty , for exampre, appel-
fints poi'ntea to fsolated instances of
eiectoial success Prior to 1982 which the
;;;;i;;isrred in coir,unction with evidence
of electo..1 fatluies such as the defeat
oi "ff 

black Democratic candidates'
including jpPointed. incumbents' in 1978

and 1980, -Years in which all white
Democrats wlre successful' JA 37 ' In
iou"" District No. 8, whi'ch is 398 black
in population, no black had ever been
efeit6a "na 

f.o* t'lecklenburg, in the eight'
member House and four member Senate
bistti"ts, only one black senator (1975-
lgtg) and no 

-black representatives had

been elected this centdry prior to 1982'
JA 35. t'loretver' as in Forlyth' in ge.neral
etectiong wherever there was a black
Democrat' running, black Democrats were the
only Democrats io lose to Republicans' JA
135.



126

purpose of inf luencing this lit'igat'ion and

pr eve nt i ng the i ntroduct,io n of s i ngle

member district s.122 Second, in r'lecklenburg

County there vrere fewer white candidates

than there were seats, thus assuring that'

a black cardidate would win the primary '123

Third' conversely, in Forsyth Cqunty there

was such a surfeit of white candidates

that the splintering of the white vote

gave blacks an unusual opportunity -124

122 Hauser Deposition, 49i JA 259-60.

123 grg 44. lloreover, the black candidate who' lost in the general election was the only
Democratic candidate to lose. In House
Di s trict 23 , there vrere onlY 2 white
ca nd idat,es f or 3 seat's i n the 1982
primary, and the black candidate who won
-ran eslentially unopposed in the general
election, but, still received only 43t of
the white vote. JA 46, 142-3, 153.

124 g6 137--8. There were 9 white Democratic
candidatesr none of them incumbenLs,
running for 5 seats. Appellees' expert
testified that the likelihood of t'wo
blacks getting elected again in the
multi-member district was "very close to
zero. " Id.



127

Fourth, in 1982r ds occurs only once every

six years, t,here was no st'atewide race for

eitherPresidentorUnitedStatesSenate,
asaresul't,ofwhichwhiteandRepublican
turrrout was unusually lon'' 125 Fif th ' in one

county, black leaders had been able to

bring about the election'of a blaek

legislator only by selecting a candidate

who had not been visibly outspoken about

the interests of the black communiay.l26

Finally, in a number of instances black

candidates won solely because black voters

in unprecedented numbers resorted to

125 T.142-144t 179i JA 137-39, 140. white
t,urnout, rrras 2Ot lower than in 1980'

126 Hauser Deposition 42'43;JA 205-6'- The

"uiiity 
of dome blacks to get' elected does

.,ot *"itt they are t'he represeltat'ly:: of

"toi"" 
of Stacr voters. T 691, 1291-4'

1299, JA 214'15.



128

single shot.voting, forfeit,ing their right,

to participate in most of the legislative

elections in order to have some opPor-

tunity of prevailing in a single race .127

The success of black. candidates in

I 982 was 'viewed by the court as a con-

catenation of these various factors, each

of which either was a freak occurrence

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



over which

in and of

ity in the

129

128 orappellees had no control '
itself underscored the inequal-

multi-nember election system '129

iia Ths likerihood, for exampre, of re-peating
successfully tlre 1982 election of blacks
in-trr" cnaiienged Forsyth House District
was 'very close to zero'" JA 137' l'tore-
or"t, unlike white Democrats, not a-single
ote of whom lost in the 1982 general elec-
i-i;;;, black DemocraEg in the other
districts stiIl enjoyed only haphazard
success. Thus, the court was not Pre:
sqnteawiththefact,situat'ionofWhitcomb
v. Chavis, 403 U.S. 124 (1971)'

129 T5s necessity of single shot vot'ing is a

distinct handicap because it exacerbates
the competitivl disadvantage minority
troie.s iireaay suffer because of their
numerical submergence' White voters get
to influence th6 election of all candi-
ait"" in the multi-seat system' whereas
blacks nust relinquish any opportuniEy to
influence t'he choice of other represen-
tat i.ves i n order to concentrate their
votes on the minority candidaE'e ' As a
result, white candidat'es can ignore t'he
interests of the black community with
impunity. See discussion suPra at'
59-62.



H.

130

Responsiveness

Appellees did not at,tenpt t,o Prove

individual electedthe unresponsiveness of

officials. In a section 2 case unrespon-

siveness is not an essenEial'Part of

plaintiff's case.1 10 Senate Rdport 29

n.11gr131 eppellants' de minimus evidence

130 16is Court held in Rogers v. Lodge, 458
U.S. 613, 625 n.9, that unresponslveness
is rpt an essential factor in establishing
a claim of intentional vote dilution under
the Fourteenth Amendment.

1 31 Because section 2 protects the right to
part,ieipate in the Process of gover.nment,
-o not Jimp1y access to the f ruits of
governmenti r-and because " the subje-ctive-
i"s" of determining responsiveness' is at
odds with the Congressional emphasis, a
showing of unresponsiveness might have
some piobative value, but a showing of
responiiveness has 1ittle. United States
v. l'larengo CountY, 731 F.2dffi
ffiock countY, 727 F.2d at
381, on oE section
2 despite a finding of responsiveness);
Mctrlillan v. Escambia CountY, 748 F.2d at



131

of responsivenes"l32rn.y be relevant rebuttal

eviderc€r but, only if appellees had

at,tempted at trial to prove unresponsive-

ness. .L9.

I. Tenuousness of the St'ate Policy foJ
fi

The dist'rict, court correctly recogn-

ized that while departure from esE'ablished

state PoIicY may be probative of a

132 $1g only test,imony cited to sup-port thelr
assertfon that appellees' rwitnesses
'conceded that their Ieglslators .were
i.tp"*iv€" r A. Br : 32, was the testimony
of one witness who testlfied on cross-
examinationthatoftwelveRepresenE'atives
ard Senators from l'iecklenburg County, two'
ine black rePresentative and one white
rePre se nt,at,ive , were res-Ponsive ' JA
ig4-ge. The only ot,her evidence was the
self serving tLst,imony of one defense
witness, listLd in toto in footnot'e 14 to
appellantsr brief - FurE,hermore, appellants
aiSercion that white rePresentat'ives must'
be responsive because "white candidates
need bl]ack support t,o win' A' Br' at 34'
is noE, suppoi[ed by the record' In the
challeng6A distriLts, whiEe candidat'es
consistently eron without support- from
black voteri. See, suPra, 62 n'69t JA
231 -2 .



132

violation of section 2, a consistently

appl ied race neutral policy does not

negat,e apPellees' showing, through other

f actors, that t'he challenged practice has

a discriminatory result. JA 51, citing S'

Rep. at 29, n. 1 1 7.

In this case, the district' court did

not find the application of a consistent'

race-neutral state policy. In fact, after

the Attorney General in 1 981 objecEed

under sect'ion 5 to the 1967 prohibition

against dividing count,ies, bot'h covered

counties and counties not covered by

section 5 were divided-133 JA 52'

The At'torney General f ound that the

use of large multi-member districts

' necessarily submerges" concentrations of

black voters in the section 5 covered

count,ies. Based on the toEality of

1 33 The challenged plan divided nineteen
counties not' tovered by Section 5'



133

relevant circumstances, the court below

slmilarly concluded that', in the non-

covered counties as wel1, black citizens

have less opportunit,y than whiEe citlzens

to participate in the challenged najority

whitemulti-memberdistrictsandtoelect
representatives of their cholee '

The decision of the discrict' court'

rests on an exhaustive analysls of the

electoral conditions in each of the

challenged districts. The lower court

made detailed findings identifying the

specif ic obst,acles which impaired the

ability of minority vot'ers t'o elect

candidates of their choice in those

districts. The trial court held

... the creation of each of the
multi-member districts chal-
lenged in this action result's in
the black registered vot'ers of
that district ... having less
opPortunitY than- do other
memUers of the electorate to
particiPate in t,he PoliticaI



134

process and t,o elect rePresen-
Latlves of their cholce' JA
54.

This ultinat,e finding of fact, unless

clearly erroneous, .ls suf f lcienE as a

matter of law to requlrg a ftndlng of

liabilltY under section 2.



The

district

DATED:

135

CONCLUSION

decision of the three

court, should be affirmed'

RespectfullY submitted,

j udge

JULIUS L. CHA!.IBERS
ERIC SCTINAPPER
C. LANI GUINIER *

NAACP Legal Defense
and Educational Fund, Inc'

' 16th Floor
99 Hudson Street'
New York, New York 10013
(212) 219-1900

LESTIE J. WINNER
Ferguson, Wat't, Wal1as,
& Adkins, P.A.
951 S. IndePendence BIvd'
Charlotte, Ilorth Carolina 28202
(704) 375-8461

ATTORNEYS FOR APPELLEES, RAIPh
Gingles, et al.

*Counse1 of Record

AUGUST 30, 1985