Jurisdictional Statement

    No. __ 

IN THE 

~uprtmt (!Court of tbt llnittb ~tate~ 
OCTOBER TERM, 1983 

RUFUS L. EDMISTEN, et al., 
Appellants, 

v. 
RALPH GINGLES, et al., 

Appellees. 

On Appeal From The United States District Court 
For The Eastern District Of North Carolina 

JURISDICTIONAL STATEMENT 

* JERRIS LEONARD 
KATHLEEN HEENAN McGUAN 

LAW OFFICES OF JERRIS LEONARD, P.C. 
900 17th Street, N.W., Suite 1020 
Washington, D.C. 20007 
(202) 872-1095 

JAMES WALLACE, JR. 
DEPUTY ATTORNEY GENERAL 

FOR LEGAL AFFAIRS 

Attorney General's Office 
N.C. Department of Justice 
Post Office Box 629 
Raleigh, North Carolina 27602 
(919) 733-3377 
Attorneys for Appellants 

*Counsel of Record 

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203 





QUESTIONS PRESENTED 

I. Whether Section 2 of the Voting Rights Act guaran­
tees protected minorities the right to safe electoral 
districts wherever there occurs a sufficient con­
centration of minority citizens to create at least one 
safe black district which ensures black electoral suc­
cess. 

II. Whether preclearance of a redistricting plan under 
Section 5 of the Voting Rights Act precludes relitiga­
tion of the issue of discriminatory result of that plan 
by private plaintiffs under Section 2. 

III. Whether racial bloc voting exists as a matter of law 
whenever less than 50% of the white voters cast 
ballots for the black candidate. 

IV. Whether the court erred in rejecting substantial evi­
dence that many black leaders were satisfied that 
electoral access and opportunity for blacks and 
whites were equal and furthermore, opposed the 
concept of single member districts advocated by the 
plaintiffs. 



11 

PARTIES TO THE PROCEEDING BELOW 

The Appellants, defendants in the action below, are as 
follows: Rufus Edmisten, Attorney General of North 
Carolina; James C. Green, Lieutenant Governor of North 
Carolina; Liston B. Ramsey, Speaker of the House; The 
State Board of Elections of North Carolina; R. Kenneth 
Babb, John L. Stickley, Ruth Semashko, Sydney F.C. 
Barnwell, and Shirley Herring, members of the State 
Board of Elections; and Thad Eure, Secretary of State. 

The Appellees, plaintiffs in the action below, are as 
follows : Ralph Gingles, Sippio Burton, Fred Belfield, and 
Joseph Moody, on behalf of themselves and all others 
similarly situated. 



lll 

TABLE OF CONTENTS 
Page 

QUESTIONS PRESENTED ............................ . 

PARTIES TO THE PROCEEDINGS BELOW • . . . . . . . . . . . . . . . 11 

TABLE OF AUTHORITIES ..•..................•....•.. 

OPINIONS BELOW . .............•........ . .......... 

JURISDICTION ........•.......•..................... 

CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED . 

STATEMENT OF THE CASE .......................... . 

THE QUESTIONS PRESENTED ARE SUBSTANTIAL ....... . 

I. Section 2 Of The Voting Rights Act Guarantees Ac­
cess To The Political Process, Not Electoral Success 
Wherever There Occurs A Sufficient Concentration 
Of Black Citizens To Create At Least One Safe Black 
District ..................................... . 

II. Preclearance Of A Redistricting Plan Under Section 
5 Precludes Readjudication Of The Issue Of Discrim­
inatory Result Of That Plan By Private Plaintiffs 
Under Section 2 ............................. . 

III. Racially Polarized Voting Is Not Established As A 
Matter Of Law Whenever Less Than A Majority Of 
White Voters Vote For A Black Candidate ..... . 

IV. The District Court Erred In Disregarding Sub­
stantial Evidence That Many Black Leaders Were 
Satisfied That Electoral Access And Opportunity 
For Blacks And Whites Were Equal, And Furth­
ermore OJ?posed The Concept Of Safe Single­
Member Districts Advocated By The Plaintiff 

CONCLUSION ..................................... . 

APPENDIX A ..................................... . 

APPENDIX B 

APPENDIX C 
APPENDIX D 

iv 
1 
1 
2 
2 
7 

7 

12 

17 

21 
23 
1a 

57 a 
58 a 
59 a 



iv 

TABLE OF AUTHORITIES 
CAsEs: Page 
Arlington Heights v. Metropolitan Housing Dev. Corp., 

429 u.s. 252 (1977)............................ 7 
Chapmanv. Nicholson, No. CV82-PT-1879-J (N.D. Ala., 

Feb. 13, 1984) . .. .. .. .. . .. .. .. .. . .. .. . .. .. .. . . 12 
City of Mobile v. Bolden, 446 U.S. 55 (1980) . . . . . . . . . 7 
David v. Garrison, 553 F.2d 923 (5th Cir. 1977) .... 10, 11 
Donnell v. United States , 682 F.2d 240 (D.C.Cir. 1982) 16 
Escambia County v. McMillan, 688 F.2d 960 (5th Cir. 

1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 
Hendrix v. Joseph, 559 F.2d 1265 (5th Cir. 1977 . . . . . 11 
Jones v. City of Lubbock, 727 F.2d 364 .(5th Cir. 1984), 

reh'g denied, No. 83-1196 (5th Cir. April10, 1984). 12 
, Kirksey v. Board of Supervisors, 544 F.2d 139 (5th Cir.), 

cert. denied, 434 U.S. 968 (1977) . . . . . . . . . . . . . . . . 12 
Major v. Treen, 574 F.Supp. 325 (E.D. La. 1983) ... 15, 16 
Morris v. Gressette, 432 U.S. 491 (1977) . . . . . . . . . . . 14-16 
Parklane Hosiery v. Shore, 439 U.S. 322 (1979) . . . . . . 14 
Rogers v. Lodge, 458 U.S. 613 (1982) . . . . . . . . . . . . . . . . 20 
Smith v. Winter, 717 F.2d 191 (5th Cir. 1983) . . . . . . . . 11 
Upham v. Seamon, 456 U.S. 37 (1982), on remand, Civ. 

No. P-81-49-CA (E.D. Tex. 1984) .. . .......... 12, 22 
Velasquez v. City of Abilene, No. 82-1630 (5th Cir. Mar. 

2, 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 22 
Washington v. Davis, 426 U.S. 229 (1976) . . . . . . . . . . . 7 
Whitcomb v. Chavis, 403 U.S. 124 (1971) . . . . . . . . . . . . 8 
White v. Register, 412 U.S. 755 (1973) . . . . . . . . . . . . 6, 8, 9 
Zimmerv. McKeithen, 485 F.2d 1297 (5th Cir.1974), affd 

sub nom. East Carroll Parish School Board v. Mar-
shall, 424 U.S. 636 (1975) ..................... 7, 11 

CONSTITUTION, STATUTES: 
U.S. Const., Amend. 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 
42 U.S.C. § 1973 ................... .. . . ... .. ... passim 
42 U.S.C. § 1973c . ........... . . ..... .. ..... .. .. passim 



v 

Table of Authorities Continued 

MISCELLANEOUS: 

Subcomm. on the Constitution of the Senate Comm. on 
the Judiciary, Report on the Voting Rights Act, 

Page 

Comm. Print, 97th Gong., 2d Sess. (1982) . . . . . . . 9 
S. Rep. No. 417, 97th Gong., 2d Sess. (1982) . 9, 11, 13, 14 
H.R. Rep. No. 97-227, 97th Gong. 1st Sess. (1981) ... 9, 13 





IN THE 

~uprtmt (!Court of tf)t Wnittb ~tatts 
OCTOBER TERM, 1983 

No. __ 

RUFUS L. EDMISTEN, et al., 
Appellants, 

v. 
RALPH GINGLES, et al. , 

Appellees. 

On Appeal From The United States District Court 
For The Eastern District Of North Carolina 

JURISDICTIONAL STATEMENT 

OPINIONS BELOW 

The opinion of the United States District Court for the 
Eastern District of North Carolina in this case was ren­
dered on January 27, 1984. A copy of the Court's Opinion 
and Order is set out in Appendix A. 

JURISDICTION 

The case below was a class action by black voters of 
North Carolina challenging certain multi-member dis­
tricts in the post-1980 redistricting of theN orth Carolina 
General Assembly. The appellants filed their Notice of 
Appeal in the District Court on February 3, 1984, a copy 
of which is containedJn Appendix B. This appeal is dock­
eted in this Court within the time allowed by order of the 
Chief Justice, dated March 28, 1984. A copy of this order 



2 

is set forth in Appendix C. The jurisdiction of this Court is 
invoked under 28 U.S.C. § 1253. 

CONSTITUTIONAL PROVISIONS AND STATUTES 
INVOLVED 

The United States Constitution, Fifteenth Amend­
ment, and Sections 2 and 5 of the Voting Rights Act of 
1965, as amended, 42 U.S.C. §§ 1973, 1973c are set out in 
Appendix D. 

STATEMENT OF THE CASE 

In July of 1981, the North Carolina General Assembly 
enacted a legislative redistricting plan in order to con­
form the State Senate and House of Representative dis­
tricts to the 1980 census. In keeping with a 300 year old 
practice in the State, the plans consisted of a combination 
of single member and multimember districts and each 
district was composed of either a single county or two or 
more counties so that no county was divided between 
legislative districts. The Plaintiffs below filed this action 
on September 16, 1981 in the United States District 
Court for the Eastern District of North Carolina alleging 
among other things, that the multi-member districts di­
luted black voting strength. 

In October 1981, in a special session, the General As­
sembly repealed and reworked the House plan to reduce 
the population deviations. Because forty of North Caroli­
na's 100 counties are covered by Section 5 of the Voting 
Rights Act, the revised House plan and the Senate plan 
were submitted to the Attorney General for review. The 
Attorney General interposed objections to both propos­
als. He found that the state policy against dividing coun­
ties resulted in the creation of multi-member districts 
which in turn tended to submerge black voters in the 
covered counties. 



3 

During the early months of 1982 counsel for the General 
Assembly worked closely with the Civil Rights Division 
of the Department of Justice in order to remedy those 
aspects of the plans found objectionable under Section 5. 
In February, the General Assembly enacted new 
redistricting plans in which some county lines were 
broken in order to overcome the objection in the covered 
counties of the State. When these plans were submitted, 
the Attorney General found one problematic district in 
each plan. These subsequently were redrawn to Justice 
Department specifications. On April30, 1982, the Senate 
and House plans received Section 5 preclearance. 

The action below remained pending during the course 
of these legislative proceedings, and several amendments 
to the complaint were permitted to accommodate the 
successive revisions of the redistricting plans. The last 
supplemental complaint included Section 2 of the Voting 
Rights Act, as amended on June 29, 1982, as a basis of the 
plaintiffs' claim of vote dilution. In its final form, the 
complaint alleged that in 5 General Assembly districts, 
the use of multi-member configurations diluted the voting 
strength of black citizens in violation of Amended Section 
2. In addition, the plaintiffs alleged vote dilution in 
another instance where a concentration of black voters 
was split between 2 Senate districts. The plaintiff class 
was certified and trial to a three-judge court was held for 
8 days commencing July 25, 1983. 

The plaintiffs attempted to prove that multi-member 
House districts in Durham, Forsyth, Mecklenburg and 
Wake counties, and the multi-member Senate district 
that included Mecklenburg County, none of which were 
covered by Section 5, violated Section 2. They also attack­
ed 2 district configurations in the covered area of the 
State: House district 8 and Senate district 2. 



4 

The record reflects the following stipulated facts: 
Durham County was a 3-member House district which 
had a black voting age population of 33.6%. Durham has 
had one black representative to the House continuously 
since 1973. Two of its five county commissioners are black 
as are two of its four elected district court judges. The 
Durham County Board of Elections had a black member 
from 1970 to 1981. The chairmanship of the Durham 
County Democratic Party was held by a black from 1969 
through 1979 and is currently held by a black for the 
1983-85 term. 

The black voting age population of Mecklenburg is 24%. 
Currently one of the eight House members from Mecklen­
burg County is black. James D. Richardson, who is also 
black and was running in his first election for public office 
in 1982, came in ninth in a race for eight seats, with only 
250 votes less than the eighth successful candidate. This 
was in a field of 18 candidates. While there is currently no 
black senator from the Mecklenburg-Cabarrus County 
Senate District, James Polk, a first time candidate for 
public office, ran fifth in a race for four seats in the 1982 
election. The Mecklenburg-Cabarrus County Senate Dis­
trict did have a black senator for three terms from 1975 
through 1980, until his death before the 1980 elections. In" 
addition, one of the five Mecklenburg County Commis­
sioners, two of the nine Charlotte-Mecklenburg Board of 
Education members, and one of the ten Mecklenburg 
County District Court judges, all of whom are black, were 
elected at-large. In addition, another black was appointed 
to a vacant district court judgeship in Mecklenburg Coun­
ty, but has not yet had to run for election. One of the three 
Mecklenburg County Board of Elections members, the 
current chair, and the immediate past chair of the Meck­
lenburg County Democratic Executive Committee, are 
also black. 



5 

The City of Charlotte, located in Mecklenburg County, 
has a population which is 31% black. Harvey Gantt, who is 
black, currently serves as Mayor of that city. Charlotte 
also has two black city council members elected from 
majority black districts. 

The five-member House District 39, including most of 
Forsyth County has a 22% black voting age population 
and currently has two black representatives as a result of 
the 1982 elections. Forsyth County has previously 
elected a black representative for the 1974-76 and 1977-78 
General Assemblies. Blacks have also been appointed by 
the Governor on two occasions to represent Forsyth 
County in the North Carolina House. This occurred in 
1977 when a black representative resigned and again in 
1979 when a white representative resigned. One of the 
five Forsyth County Commissioners and one of the eight 
Forsyth County School Board members are black. Both 
Boards are elected at-large. In addition, one of the three 
members of the Forsyth County Board of Elections is 
black. 

The City ofWinston-Salem, located in Forsyth County, 
has a black population of slightly more than 40% and a 
black voter registration of slightly less than 32%. The 
Winston-Salem City Council has eight members elected 
from wards. Currently, there are three black members 
elected from majority black wards and one black member 
elected from a ward with slightly less than 39% black 
voter registration. The black member defeated a white 
Democratic incumbent in the primary and a white Repub­
lican in the general election. 

The current Wake County six member House delega­
tion includes one black member, Dan Blue, who is serving 
his second term. In the last election, Blue received the 
highest vote total of the 15 Democrats running in the 



6 

primary and the second highest vote total of the 17 candi­
dates running for the six seats in the general election. 
Although no single-member black Senate district can be 
constructed in Wake County, Wake elected a black Sena­
tor for the 1975-76 and 1977-78 terms. 

One of the seven Wake County Commissioners is black. 
Two of the eight Wake County District Court Judges are 
black. The Sheriff of Wake County, John Baker, is black 
and is currently serving his second term. In the 1982 
election for his second term, Baker received 63.5% of the 
votes in the general election over a white opponent. In the 
Democratic Primary, Baker received over 61% of the 
vote in defeating two white opponents. Wake County 
Commissioners District Court Judges, and the Sheriff are 
all elected at large. According to 1980 figures, 20.5% of 
the Wake County voting age population are black. Wake 
County has also had a black member continuously on its 
three-member Board of Elections since 1977, and the 
current chair is black. 

Despite these stipulated facts, the court below found 
that the multimember districts in Durham, Forsyth, 
Mecklenburg and Wake Counties violated Section 2. The 

· court was able to reach this conclusion because it never 
addressed the ultimate issue of fact posited by the 
statute-whether black citizens of these districts had 
equal access to the political process and equal opportunity 
to elect candidates of their choice. Rather, the court 
ignored the statutory language and construed the legisla­
tive history. 

The Report of the Senate Committee on the Judiciary 
lists nine factors which the Committee suggested might 
be indicative of vote dilution. S. Rep. No. 417, 97th Cong. , 
2d Sess. (1982) at 28. These factors were culled from the 
analytical frameworks in White v. Register, 412 U.S. 755 



7 

(1973) andZimmerv. McKeithen, 485 F.2d 1297 (5th Cir. 
1974). The Senate Report makes clear that these factors 
are merely illustrative of the kinds of evidence a court 
could consider. No matter how many of these factors a 
plaintiff proves he must still establish that the challenged 
electoral mechanism, in the totality of circumstances, 
results in a denial of electoral access. Because the court 
below mechanistically applied the factor analysis of the 
Senate Report without ever relating the evidence to po­
litical access in the particular circumstances in this case, 
the court reached the untenable conclusion that Section 2 
was violated even though, "it has now become possible for 
black citizens to be elected to office at all levels of state 
government in North Carolina." App. at 37a. 

THE QUESTIONS PRESENTED ARE SUBSTANTIAL 

I. Section 2 Of The Voting Rights Act Guarantees Access To 
The Political Process Not Electoral Success Wherever 
There Occurs A Sufficient Concentration Of Black 
Citizens To Create At Least One Safe Black District. 

On June 29, 1982 Congress enacted amendments to the 
Voting Rights Act of 1965. Foremost among the changes 
adopted was a complete transformation of Section 2. 
Prior to this 1982 amendment, Section 2 had been viewed 
as simply the statutory restatement of the Fifteenth 
Amendment. City of Mobile v. Bolden, 446 U.S. 55 
(1981). Consistent with this Court's rulings, in such cases 
as Washington v. Davis, 426 U.S. 229 (1976) and Arling­
ton Heights v. Metropolitan Housing Development Corp. 
429 U.S. 252 (1977), it was necessary to prove both dis­
parate impact and discriminatory intent in order to estab­
lish a violation of the Fifteenth Amendment and con­
sequently, of Section 2. This was holding of the plurality 
of the Court in City of Mobile, supra. 



8 

Section 2(a) as amended provides that no voting law 
shall be imposed or applied in a manner which results in a 
denial or abridgement of the right to vote on account of 
color. Subsection (b) in its entirety reads: 

(b) A violation of subsection (a) is established if, 
based on the totality of circumstances, it is 
shown that the political processes leading to 
nomination or election in the state or political 
subdivision are not equally open to participation 
by members of a class of citizens protected by 
subsection (a) in that its members have less 
opportunity than other members of the electo­
rate to participate in the political process and to 
elect representatives of their choice. The extent 
to which members of a protected class have 
been elected to office in the state or political 
subdivision is one "circumstance" which may be 
considered, provided that nothing in this sec­
tion establishes a right to have members of a 
protected class elected in numbers equal to 
their proportion in the population. 42 U.S.C. 
§ 1973. 

By the new language, Congress sought to relieve plain­
tiffs of the burden of proving discriminatory intent. 
Under the new Section 2, a plaintiff must show that the 
challenged election law or practice "results" in unequal 
access to the political process. 

The legislative history of the 1982 amendments to the 
Voting Rights Act is in may ways internally inconsistent 
and self-contradictory, in part, because no conference 
committee report was produced, and the manner in which 
divergent views of the House and Senate Committee 
members were compromised was not recorded. One 
theme, however, is echoed by both Committees and in 
fact by nearly everyone who commented during the floor 
debates: Congress intended to codify the standard estab­
lished by the Supreme Court in White v. Register, 412 



9 

U.S. 755, (1973). See S.Rep. No. 97-417 (97th Cong. 2d. 
Sess.) at 32-24; H.Rep. No. 97227 (97th Cong. 1st Sess.) 
1981 at 30. In regard to the language ultimately adopted, 
the Senate Report states that "the substitute amendment 
codifies the holding in White, thus making clear the 
legislative intent to incorporate that precedent and the 
extensive case law which developed around it, into the 
application of Section 2." S. Rep. at 32. 

The district court erred in failing to apply Section 2 in a 
manner consistent with the judicial precedents expressly 
identifed by Congress. Although the court acknowledged 
Congress' reliance on White v. Register, and some of its 
progeny, it did not seriously attempt to integrate the 
language of Section 2 with the case law which Congress 
sought to codify. Much of the language of subsection (b) of 
the statute carne directly from this Court's opinion in 
White. 412 U.S. at 766. 1 Obviously, it is only in light of the 
White v. Register and the cases which followed that Sec­
tion 2 can be properly construed. Because the district 
court attempted to interpret the amended provision with­
out this essential judicial background, it reached several 
erroneous conclusions of law. 

First, the district court erred by equating a violation of 
Section 2 with the absence of guaranteed proportional 
representation. The court flatly stated that the essence of 
a vote dilution claim is this: 

[A] racial minority with distinctive group interests 
that are capable of aid or amelioration by govern-

1 "The plaintiffs burden is to produce evidence to support findings 
that the political processes leading to nomination and election were 
not equally open to participation by the group in question-that its 
members had less opportunity than did other residents to participate 
in the political processes and to elect legislators of their choice." 412 
U.S. at 766. 



10 

ment is effectively denied the political power to fur­
ther those interests that numbers alone would 
presumptively give it in a voting constituency not 
racially polarized in its voting behavior. (citation 
omitted). App. at 14a. 

This statement epitomizes the district court's reading of 
the amended statute. Although blacks had achieved con­
siderable success in winning state legislative seats in the 
challenged districts, their failure to consistently attain 
the number of seats that numbers alone would 
presumptively give them, (i.e, in proportion to their pre­
sence in the population) the court found that Section 2 had 
been violated. All of the vote dilution cases prior to City of 
Mobile run counter to this interpretation. In David v. 
Garrison, for example, the Fifth Circuit wrote that "dilu­
tion occurs when the minority voters have no real oppor­
tunity to participate in the political process." 553 F.2d 
923,927 (5th Cir. 1977). And in Dove v. Moore, the Eight 
Circuit in discussing vote dilution under the pre-Mobile 
constitutional standard now codified in Section 2, stated 
that the "constitutional touchstone is whether the system 
is open to full minority participation not whether prop­
ortional representation is in fact, achieved." 539 F.2d 
1152, 1154 (8th Cir. 1976). 

The court further misinterpreted the new statute by 
blurring the clear distinction between effective represen­
tation and representation by a member of one's own race. 
Nothing in the record supports a conclusion that the black 
residents of the districts at issue have been denied repre­
sentation in the halls of the General Assembly. The dis­
trict court, however, based its decision, in part, on the 
premise that Section 2 guarantees black citizens the right 
to elect black legislators, at least whenever a sufficient 
number of blacks is concentrated so as to allow the con­
struction of a safe black single member district around 
them. 



11 

Numerous pre-City of Mobile dilution cases strongly 
refute such a presumption. In Hendrix v. Joseph the 
Fifth Circuit explained that the Zimmer factors are de­
signed "to test whether an at-large system has made 
elected officials so secure in their positions and has made 
the black vote so unnecessary to success at the polls" that 
black participation in government is ignored and gov­
ernmental services to the black community are withheld. 
559 F.2d 1265, 1269 (5th Cir. 1977). See also, David v. 
Garrison, 553 F.2d 923, 927. Since the amendment of 
Section 2, a federal district court in Texas made this 
pronouncement: "There is simply no right-statutory or 
constitutional-to be represented by a member of a par­
ticular race." Seamon v. Upham, No. P-81-49 C.A. (E. D. 
Tex. Jan. 30, 1984). 

The court below struck down the multi-member dis­
tricts at issue because there was no guarantee that blacks 
would always be elected to the General Assembly from 
those districts. The court not only presumed that pro­
tected minorities have a right to elect members of their 
own race, it also assumed that the right must be guaran­
teed by safe black voting-majority districts in which black 
candidates would always be successful as long as black 
residents vote as a bloc. This was clearly not the intent of 
Congress. 2 Other lower federal courts, however, have 
also adopted erroneous constructions of Section 2 because 
they have relied on isolated segments of the legislative 
history and ignored the judicial wisdom which informed 

2 Senator Dole, one of the sponsors of the compromise bill ex­
plained that, "Citizens of all races are entitled to have an equal chance 
of electing candidates of their choice, but if they are fairly afforded 
that opportunity and lose, the law should offer no remedies." S. Rep. 
at 193. See also , Smith v. Winter, 717 F .2d 191 (5th Cir. 1983) at 192. 



12 

the statutory language. See, e.g ., Jones v. City of Lub­
bock, 727 F.2d 364 (5th Cir. 1984); Velasquez v. City of 
Abilene, No. 82-1630 (5th Cir. Mar. 2 1984). It is in­
cumbent upon this Court to properly interpret this impor­
tant legislation. 

II. Preclearance_ Of A Redistricting Plan Under Section 5 
Precludes Readjudication Of The Issue Of Discriminato­
ry Result Of That Plan By Private Plaintiffs Under Sec­
tion 2. 

Two of the districts challenged by the plaintiffs and 
found to violate Section 2 consisted of counties covered by 
Section 5 of the Voting Rights Act: House District 8, a 
4-member seat comprised of Nash, Wilson and Edge­
combe counties and Senate District 2 which included 
Northampton, Hertford, Gates, Bertie, Chowan and seg­
ments of 4 other counties. The plaintiffs claimed that the 
multimember configuration in District 8 diluted the black 
voting potential in that district. As to Senate District 2, 
the plaintiffs contended that a black concentration suffi­
cient to create a safe black district was split between 
District 2 ( 55.1% black) and District 6 ( 46% black). 

Pursuant to Section 5 of the Voting Rights Act, 42 
U.S.C. 1973c, North Carolina must submit any change·in 
its voting laws or practice prior to implementation, to 
federal authorities. The scope of federal review, how­
ever, is limited to those 40 counties which are specifically 
covered by application of the formula in Section 4(a) of the 
Act. Accordingly, the State of North Carolina submitted 
to the Attorney General Chapters 1 and 2 of the Session 
Laws of the Second Extra Session (the final amended 
House and Senate redistricting plans). 

Under Section 5, the covered State or subdivision has 
the burden of proving, either by a submission to the 
Attorney General or by an action for declaratory judg-



13 

ment, that the proposed enactment does not have the 
purpose and will not have the effect of denying or abridg­
ing the right to vote on account of race. The revised 
Section 2 places the burden on the plaintiff to prove that 
the challenged law has a discriminatory result. Insofar as 
Section 5 requires the State to meet the burden of proving 
the absence of both discriminatory purpose and effect, 
Section 5 necessarily presents a more stringent test for 
the covered jurisdiction than Section 2. 

The legislative history of the recent amendment of 
Section 2 bears this out. In its Report, the House Com­
mittee on the Judiciary expressed its concern that the 
then-current version of Section 2 required proof of dis­
criminatory purpose while a violation of Section 5 re­
quired only discriminatory effect. H. Rep. No. 97-227 
(97th Gong. 1st Sess.) at 28. In the Committee's view, 
Section 2 had to be revised so as to apply essentially the 
same "effects" standard to non-covered jurisdictions. The 
lawfulness of a voting law should not depend, the Com­
mittee stated, on whether the jurisdiction which imple­
ments it, is covered or non-covered. 

Similarly, in the Senate Report, the point was also 
made that Section 5 preclearance would preclude a sub­
sequent finding of violation under Section 2. Rep. No. 
97-417 at 35. The Comfnittee had set out to refute the 
findings of the Subcommittee that identified many cities 
including Savannah, Georgia, as vulnerable under the 
new standard. The Senate Judiciary Committee, deter­
mined that this finding of the Subcommittee was obvious­
ly inaccurate. Savannah had completed an annexation in 
1978 which had required preclearance. "After subjecting 
the proposed annexation to the rigorous requirements of 
Section 5," the Department of Justice decided that the 
election system provided black voters with adequate 



14 

opportunity for participation and election. S. Rep. No. 
97-417 at 35. The Senate Report concluded that insofar as 
Savannah's city council system had passed muster under 
Section 5, it would necessarily also meet the require­
ments of the proposed amendment. I d. at 35. 

It was apparently the intent of Congress that Section 2 
make applicable nationwide the "effects" test contained in 
Section 5. While uncovered jurisdictions remain un­
affected by the Section 5 preclearance requirement, they 
would be subject to the same test of discrimination when 
sued by individuals or the Attorney General. In view of 
the legislative intent, Section 5 has already accomplished 
the purpose of Section 2 in the covered counties. 

By letter dated April 30, 1982 the Attorney General 
informed the State of North Carolina that he had deter­
mined that the reapportionment plans for the North 
Carolina General Assembly "did not have the purpose and 
would not have the effect of denying or abridging the 
right to vote" in the 40 counties covered by Section 5 of 
the Voting Rights Act. Thus, the issue of the discrimina­
tory purpose and effect of the reapportionment had been 
authoritatively and conclusively determined in the cov­
ered counties, the plaintiffs claim to the contrary, in the 
court below, notwithstanding. 

Administrative preclearance and a declaratory judg­
ment are equal alternatives under Section 5. Morris v. 
Gressette, 432 U.S. 491, (1977). Insofar as the Attorney 
General's approval has the same legal force as a judgment 
rendered by the District of Columbia federal court, the 
granted preclearance had a collateral estoppel effect in 
this case. "Under the doctrine of collateral estoppel .. . 
the judgment in the prior suit precludes relitigation of 
issues actually litigated and necessary to the outcome of 



15 

the first action." Parklane Hosiery v. Sho?:e, _439 U.S. 
322, (1979) at 326, n.5. All facts necessary to a finding of 
discrimination under Section 2 were at issue and neces­
sarily determined by the Section 5 procedure. Thus, the 
Attorney General's decision as to the 40 counties should 
have precluded relitigation of the same issue by the plain­
tiffs. 

The court below rejected out of hand the appellants' 
contention that insofar as the State had proven under 
Section 5 that the redistricting of the covered counties 
had neither a discriminatory purpose nor effect, a chal­
lenge under Section 2 to any precleared districts was 
precluded. The court found that the preclearance of Sen­
ate District 2 and House District 8 was not even probative 
of the issues before them. 

The district court relied for this conclusion solely on the 
opinion in Major v. Treen, 574 F.Supp. 325 (E.D. La. 
1983). In that case, plaintiffs mounted a Section 2 chal­
lenge to a precleared Congressional district in Louisiana. 
The Louisiana district court reasoned as follows: 

Private plaintiffs are free to mount a de novo attack 
upon a reapportionment plan notwithstanding pre­
clearance. United States v. East Baton Rouge Par­
ish School Board, 594 F.2d 56, 59 n. 9 (5th Cir. 1977). 
See Morris v. Gressette, 432 U.S. 491, 506-07 (1977) 
("where the discriminatory character of an enact­
ment is not detected upon review of the Attorney 
General, it can be challenged in the traditional con­
stitutional [or statutory] litigation.") 57 4 F. Supp. at 
328, n. 1. 

Reliance by M ajar v. Treen and the court below on this 
excerpt from Morris v. Gressette is doubly flawed. First 
of all, the essential language, "or statutory," appears in 
brackets because the M ajar court simply added it to the 
actual text of Morris. This Court has never held that any 



16 

statutory right of action was preserved by Section 5, but 
rather stated that Section 5 did not preclude a con­
stitutional action in which the plaintiffs had the burden of 
proving both disparate impact and discriminatory intent. 
In addition, Morris v. Gressette was decided in 1977-
long before the amendment of Section 2 and long before a 
private right of action under the original Section 2 was 
recognized. The faulty logic of Major severely taints the 
conclusion of the court below regarding the in­
terrelationship of Sections 5 and 2 of the Voting Rights 
Act. 

The sheer absurdity of the district court's ruling that 
plaintiffs may relitigate issues already disposed of by 
Section 5 is manifest in the court's discussion of Senate 
District 2. The court acknowledges that increasing the 
black percentage in District 2 by adding black residents 
from the adjacent parts of District 6 would necessarily 
deplete the influence of those blacks remaining in District 
6. Nevertheless, the court ruled that in enacting Section 
2, Congress had committed this dilemma "to the judg­
ment of the black community to whom it has given the 
private right of action under amended Section 2." App. at 
52a, n. 33. 

The configuration of Districts 2 and 6, however, were 
precleared by the Attorney General under Section 5. In 
fact, these districts were designed by counsel and legisla­
tive drafters in daily contact with the Assistant Attorney 
General and members of the staff of the Civil Rights 
Division. Under Section 5,.the Attorney General is specif­
ically charged with representing the black voters of the 
submitting states. Donnell v. United States, 682 F.2d 
240 (D.C. Cir. 1982). In the exercise ofthat obligation the 
Attorney General determined that it was in the best 
interests of the black voters not to diminish black in-



17 

fluence in District 6 in order to "pack" District 2. The 
State followed the suggestions of the Assistant Attorney 
General in enacting these districts. Now that the State, at 
great expense and considerable political turmoil, has 
complied with the wishes of the federal official statutorily 
charged with representing minority voting interests, it is 
now ordered by the District court to comply with the 
wishes of a group of minority voters who apparently 
disagreed with the Attorney General. This is acutely 
unfair to the State, especially in light of the fact that the 
views of the plaintiffs and their counsel were given every 
consideration by the Civil Rights Division prior to the 
preclearance. 

In light of the large number of Section 2 suits which 
have been decided or are pending in covered jurisdic- . 
tions, the preclusive effect of Section 5 on Section 2litiga­
tion must be authoritatively resolved. See, e.g., Missis­
sippi Republican Executive Committee v. Owen H. 
Brooks, No. 83-1722 Jurisdictional Statement filed April 
26, 1984. 

III. Racially Polarized Voting Is Not Established As A Mat­
ter Of Law Whenever Less Than A Majority Of White 
Voters Vote For A Black Candidate. 

The court accepted the opinion of the plaintiffs' expert 
that racially polarized voting occurs whenever less than 
50% of the white voters cast a ballot for the black 
candidate. 3 As a result, the court concluded that there 

3 Recently in a denial of a request for rehearing en bane, Judge 
Higginbotham commented that, "whether polarized voting is present 
can pivot the legality of at-large voting districts." Jones v. City of 
Lubbock, No. 83-1196 (Fifth Circuit, April 10, 1984). He also ex­
pressed serious reservations about the methodology used by experts 
to analyze polarized voting before the trial court in that case. Judge 



18 

was "severe and persistent" racial bloc voting despite the 
following facts: 

a) In the 1982 Mecklenburg House primary, Berry 
who is black received 50% of the white vote and Richard­
son who is also black, received 39%. Both black candi­
dates won the primary. 

b) In the 1982 House general election for Mecklen­
berg County, 42% of the white voters voted for Berry: 
29% of the whites voted for Richardson. In a field of 18 
candidates for 8 seats, 11 white candidates received fewer 
white votes than Berry. In that election Berry finished 
second, and Richardson finished ninth, only 250 votes 
behind the eighth place winner. 

c) In the 1982 Senate general election for Durham 
County, a 3 member seat, Barnes, a black Republican 
received 17% of the white vote and 5% of the black vote. 

d) In the 1982 House general election for Durham 
County, black candidate Spaulding received 47% of the 
white vote and won the election. 

e) In the 1982 Senate primary election for Mecklen­
burg County, the black candidate, Polk, received 32% of 
the white vote and was successful i~ the primary. 

Higginbotham expressed reservations about the regression model 
used there to relate the racial makeup of a precinct with the election 
outcome in that precinct. He noted that the plaintiffs expert "did not 
test for other explanatory factors than race or ethnicity .. . [such] as 
campaign expenditure, party identification, media use measured by 
cost, religion, name identification or distance that a candidate lived 
from any particular precinct ... It ignores the reality that race ... 
may mask a host of other explanatory variables." 

It is interesting to note that the plaintiffs' expert in this case used 
precisely the same methodology criticized by Judge Higginbotham. 



19 

f) In the 1982 Mecklenburg Senate general election, 
Polk, a black candidate received 33% of the white vote. 
The leading white candidate received 59% of the white 
vote. 

g) In the 1982 Forsyth House primary, the two black 
candidates, Hauser and Kennedy, received 25% and 36%, 
respectively, of the white vote. In a field of 11, Kennedy 
received more white votes than six of those candidates. 
Both black candidates won the primary. 

h) In the 1982 House general election for Forsyth 
County, Hauser and Kennedy received 42% and 46% 
respectively, of the white vote. The successful white 
candidates received substantially equal support from 
black and white voters-all within a range between 43% 
and 63%. Both black candidates were successful. 

i) In the 1982 House primary election for Wake Coun­
ty, a six-member district, the only black candidate run­
ning, Dan Blue, received more total votes than any other 
of the 15 candidates. Blue received more white votes than 
11 of the other candidates. 

j) In the 1982 House general election for Wake Coun­
ty, Blue ran second out of a field of 17 candidates. Blue 
also received the second highest number of white votes. 

k) In the 1982 House primary election for Durham 
County, one black candidate, Clement, received 32% of 
the black vote and 26% of the white vote. The black 
candidate Spaulding received 90% of the black vote and 
37% of the white vote. Of the two black candidates, only 
Spaulding was successful in the primary. Had the black 
voters wanted to elect Clement, they could have cast 
double-shot instead of single-shot votes. 



20 

1) Finally, of the 11 elected black incumbents who 
have sought reelection to the General Assembly in recent 
years, all 11 have won reelection. 

In Rogers v. Lodge, 458 U.S. 613 (1982), this Court 
described polarization in terms of its ability to affect 
election outcomes. 

Voting along racial lines allows those elected to 
ignore black interests without fear of political con­
sequence, and without bloc voting the minority 
candidates would not lose elections solely because of 
their race. 458 U.S. at 616. 

Racially polarized voting is probative of vote dilution only 
insofar as it is outcome determinative. In other words, 
where blacks consistently lose elections because no 
whites or few whites will vote for them, the voting is 
racially polarized. Where blacks win because of bloc vot­
ing and single shot voting by blacks, combined with sub­
stantial support from whites, then racial polarization does 
not hav.e any legal significance. See McMillan v. Escam­
bia County, Florida, 688 F.2d 960, 966 (5th Cir. 1982); 
NAACP v. Gadsden County School Board, 651 F .2d 978 
(11th Cir. 1982). 

A candidate is primarily concerned with receiving more 
votes than his opponents, not with the color of the person 
who votes for him. Discrete and different voting patterns 
among racial groups concern the candidate when they 
operate to prevent him from winning. This political real­
ity lies at the root of Congress' inclusion of polarized 
voting in Section 2 analysis. The Senate Report explicitly 
states that "[i]f plaintiffs assert they are denied fair ac­
cess to the political process in part, because of the racial 
bloc voting context within which the challenged election 
system works, they would have to prove it." S. Rep. at 34 
(emphasis added). The mere presence of different voting 



21 

patterns in the white and black electorate does not prove 
anything one way or the other about the ultimate issue of 
access to the political process. Insofar as the lower federal 
courts have viewed racial bloc voting as the "linchpin of 
vote dilution" (App. A at 43a), it is imperative that this 
Court formulate a standard by which that condition can 
be established. 

IV. The District Court Erred In Disregarding Substantial 
Evidence That Many Black Leaders Were Satisfied That 
Electoral Access And Opportunity For Blacks And 
Whites Were Equal And Furthermore Opposed The Con­
ept Of Safe Single-Member Districts Advocated By The 
Plaintiffs. 

The appellants offered considerable evidence to the 
three-judge court that showed that many members and 
leaders of the black community did not support the con­
tentions of the plaintiffs. Several black legislators had 
opposed the creation of black districts during the legisla­
tive drafting and debates. Other state leaders, white and 
black, testified that black single member districts would 
destroy the coalitions which had been forged and would 
resegregate and ghetto-ize the political landscape of the 
State. Black leaders testified that recent dramatic in­
creases in voter registration among blacks, substantial 
black influence and leadership in the State Democratic 
Party, and substantial support for black candidates from 
the white community exposed the disingenuousness of 
the plaintiffs' case. 

The district court rejected all this evidence as 
irrelevant to the issues before them based on the follow­
ing rationale: 

Congress necessarily took into account and rejected 
as unfounded, or assumed as outweighed, several 
risks to fundamental political values that opponents 



22 

of the amendment urged in committee deliberations 
and floor debate. Among these were the risk that the 
judicial remedy might actually be at odds with the 
judgment of significant elements in the racial minor­
ity; the risk that creating "safe" black-majority 
single-member districts would perpetuate racial 
ghettos and racial polarization in voting behavior; 
the risk that reliance upon the judicial remedy would 
supplant the normal, more healthy processes of 
acquiring political power by registration, voting and 
coalition building; and the fundamental risk that the 
recognition of "group voting rights" and the impos­
ing of affirmative obligation upon government to 
secure those rights by race-conscious electoral 
mechanisms was alien to the American political 
tradition. (footnotes omittted). App. A at 17a-18a. 

Nothing in the legilative history supports the court's 
conclusion that these factors "are not among the circum­
stances to be considered" in a Section 2 case. App. A at 
18a. Certainly Congressional committees received testi­
mony regarding such risks, but neither the Senate Com­
mittee Report nor the House Report suggest that such 
considerations were not germane to an analysis of the 
totality of circumstances in any particular case. Nor did 
any of the sponsors of the compromise language ultimate­
ly adopted propound this interpretation of Section 2. 

This precedent set by the district court must be ad­
dressed and corrected. If not, courts will continue, as did 
the court below, to make findings of fact which are inade­
quate under Rule 52( a) because they fail to reflect "all the 
substantial evidence contrary to its opinion." Velasquez 
v. City of Abilene, No. 82-1630 (5th Cir. March 2, 1984). 



23 

CONCLUSION 

For the reasons stated above the Court should note 
probable jurisdiction of this appeal. 

Respectfully submitted, 

* JERRIS LEONARD 
KATHLEEN HEENAN McGUAN 
LAW OFFICES OF JERRIS LEONARD, P.C. 
900 17th Street, N.W., Suite 1020 
Washington, D.C. 20007 
(202) 872-1095 

JAMES WALLACE, JR. 
DEPUTY ATTORNEY GENERAL 

FOR LEGAL AFFAIRS 
Attorney General's Office 
N.C. Department of Justice 
Post Office Box 629 
Raleigh, North Carolina 27602 
(919) 733-3377 
Attorneys for Appellants 

*Counsel of Record 





APPENDIX 





1a 

APPENDIX A 
UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF NORTH CAROLINA 
RALEIGH DIVISION 

No. 81-803-CIV-5 

RALPH GINGLES, et al. 

vs. 

RUFUS L. EDMISTEN, et al. 

Plaintiffs, 

Defendants . 

FILED 

JAN 27 1984 

J. RICH LEONARD, CLERK 
U.S. DISTRICT COURT 

E. DIST. NO. CAR. 

ORDER 

For the reasons set forth in the Memorandum Opinion of the 
co1Jrt filed this day; 

It is ADJUDGED and ORDERED that: 

1. Chapters 1 and 2 of the North Carolina Session Laws of 
the Second Extra Session of 1982 (1982 redistricting plan) are 
declared to violate section 2 of the Voting rights Act of 1965, 
amended June 29, 1982, 42 U.S. C. § 1973, by the creation of 
the following legislative districts: Senate Districts Nos. 2 and 
22, and House of Representatives Districts Nos. 8, 21, 23, 36, 
and 39. 

2. Pending further orders of this court, the defendants, 
their agents and employees, are enjoined from conducting any 
primary or general elections to elect members of the State 
Senate or State House of Representatives to represent, inter 



2a 

alia, registered black voters resident in any of the areas now 
included within the legislative distric.ts identified in paragraph 
1. of this Order, whether pursuant to the 1982 redistricting 
plan, or any revised or new plan. 

This Order does not purport to enjoin the conduct of any 
other primary or general elections that the State of North 
Carolina may see fit to conduct to elect members of the Senate 
or House of Representatives under the 1982 redistricting plan, 
or to elect candidates for any other offices than those of the 
State Senate and House of Representatives. See N.C.G.S. 
120-2.1 (1983) Cum. Supp.). 

3. Jurisdiction of this court is retained to entertain the 
submission of a revised legislative districting plan by the de­
fendants, or to enter a further remedial decree, in accordance 
with the Memorandum Opinion filed today in this action. 

4. The award of costs and attorneys fees as prayed by 
plaintiffs is deferred pending entry of a final judgment, or such 
earlier date as may be shown required in the interests of 
justice . . 

J . Dickson Phillips, Jr. 
United States Circuit Judge 

W. Earl Britt, Jr. 
Chief United States District Judge 

Franklin T. Dupree, Jr. 
Senior United States District Judge 

I certify the foregoing to be a true and correct copy of the 
Order. 

J . Rich Leonard, Clerk 
United States District Court 
Eastern District of North Carolina 

By Cherlyn Wells 
Deputy Clerk 



3a 

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF NORTH CAROLINA 

RALEIGH DIVISION 

No. 81-803-CIV-5 

RALPH GINGLES, et al. 

vs. 

RUFUS L. EDMISTEN, et al. 

Plaintiffs, 

Defendants . 

FILED 

JAN 271984 

J. RICH LEONARD, CLERK 
U.S. DISTRICT COURT 

E. DIST. NO. CAR. 

MEMORANDUM OPINION 

Before PHILLIPS, Circuit Judge, BRITT, Chief District Judge, 
and DuPREE, Senior District Judge. 

PHILLIPS Circuit Judge: 

In this action Ralph Gingles and others, individually and as 
representatives of a class composed of all the black citizens of 
North Carolina who are registered to vote, challenge on con­
stitutional and statutory grounds the redistricting1 plan 

1 For consistency and convenience we use the term "redistricting" 
throughout as a more technically, as well as descriptively, accurate one than 
the terms "apportionment" or "reapportionment" sometimes used by the 
parties herein to refer to the specific legislative action under challenge here. 
See Carstens v. Lamm, 543 F. Supp. 68, 72 n.3 (D. Col. 1982). 



4a 

enacted in final form in 1982 by the General Assembly of North 
Carolina for the election of members of the Senate and House of 
Representatives of that state's bicameral legislature. Jurisdic­
tion of this three-judge district court is based on 28 U.S. C. 
§§ 1331, 1343, and 2284 (three judge court) and on 42 U.S.C. 
§ 1973c. 

The gravamen of plaintiffs' claim is that the plan makes use 
of multi-member districts with substantial white voting ma­
jorities in some areas of the state in which there are sufficient 
concentrations of black voters to form majority black single­
member districts, and that in another area of the state the plan 
fractures into separate voting minorities a comparable con­
centration of black voters, all in a manner that violates rights of 
the plaintiffs secured by section 2 of the Voting Rights Act of 
1965, amended June 29, 1982, 42 U.S.C. § 1973 (Section 2, or 
Section 2 of the Voting Rights Act) , 42 U.S.C. §§ 1981 and 
1983, and the thirteenth, fourteenth and fifteenth amendments 
to the United States Constitution. 2 In particular, the claim is 
that the General Assembly's plan impermissibly dilutes the 
voting strength of the state's registered black voters by sub­
merging black voting minorities in multi-member House Dis­
trict No. 36 (8 members - Mecklenburg County), multi­
member House District No. 39 (5 members - part of Forsyth 
County), multi-member House District No. 23 (3 members­
Durham County), multi-member House District No. 21 (6 
members - Wake County), multi-member House District No.8 
(4 members - Wilson, Edgecombe and Nash Counties), and 
multi-member Senate District No. 22 (4 members - Mecklen­
burg and Cabarrus Counties), and by fracturing between more 
than one senate district in the northeastern section of the state 
a concentration of black voters sufficient in numbers and con-

2 The original complaint also included challenges to population deviations 
in the redistricting plan allegedly violative of one-person-one-vote princi­
ples, and to congressional redistricting plans being contemporaneously 
enacted by the state's General Assembly. Both of these challenges were 
dropped by amended or supplemental pleadings responsive to the evolving 
course of legislative action, leaving only the state legislature "vote dilution" 
claims for resolution. 



5a 

tiguity to constitute a voting majority in at least one single­
member district, with the consequence, as intended, that in 
none of the senate districts into which the concentration is 
fractured (most notably, Senate District 2 with the largest 
mass of the concentration) is there an effective voting majority 
of black citizens. 

We conclude on the basis of our factual findings that the 
redistricting plan violates Section 2 of the Voting Rights Act in 
all the respects challenged, and that plaintiffs are therefore 
entitled to appropriate relief, including an order enjoining 
defendants from conducting elections under the extant plan. 
Because we uphold plaintiffs' claim for relief under Section 2 of 
the Voting Rights Act, we do not address their other statutory 
and constitutional claims seeking the same relief. 

I 

General Background and Procedural History 

In July of1981, responding to its legal obligation to make any 
redistrictings compelled by the 1980 decennial census, the 
North Carolina General Assembly enacted a legislative 
redistricting plan for the state's House of Representatives and 
Senate. This original 1981 plan used a combination of multi­
member and single-member districts across the state, with 
multi-member districts predominating; had no district in which 
blacks constituted a registered voter majority and only one 
with a black population majority; and had a range of maximum 
population deviations from the equal protection ideal of more 
than 20%. Each of the districts was composed of one or more 
whole counties, a result then mandated by state constitutional 
provisions adopted in 1968 by amendments that prohibited the 
division of counties in legislative districting. At the time this 
original redistricting plan was enacted (and at all critical times 
in this litigation) forty of North Carolina's one hundred coun­
ties were covered by section 5 of the Voting Rights Act of 1965, 
42 U.S.C. § 1973c (Section 5, or Section 5 ofthe Voting Rights 
Act.). 



6a 

Plaintiffs filed this action on September 16, 1981, challeng­
ing that original redistricting plan for, inter alia, its population 
deviations, its submergence of black voter concentrations in 
some of the multi-member districts, and the failure of the state 
to obtain preclearance, pursuant to Section 5, of the 1968 
constitutional amendments prohibiting county division in 
legislative districting. 

After this action had been filed, the state submitted the 1968 
no-division-of-counties constitutional provisions for original 
Seeton 5 preclearance by the Attorney General of the United 
States. While action on that submission was pending, the 
General Assembly covened again in special session and in 
October 1981 repealed the original districting plan for the state 
House of Representatives and enacted another. This new plan 
reduced the range of maximum population deviations to ap­
proximately 16%, retained a preponderance of multi-member 
districts across the state, and again divided no counties. No 
revision of the extant Senate districting plan was made. 

In November 1981, the Attorney General interposed formal 
objection, under Section 5, to the no-division-of-counties con­
stitutional provisions so far as they affected covered counties. 
Objection was based on the Attorney General's expressed view 
that the use of whole counties in legislative districting required 
the use oflarge multi-member districts and that this "necessar­
ily submerges cognizable minority population concentrations 
into larger white electorates." Following this objection to the 
constitutional provisions, the Attorney General further ob­
jected, on December?, 1981, andJanuary20, 1982, to the then 
extant redistricting plans for both the Senate and House as 
they affected covered counties. 

In February 1982, the General Assembly again convened in 
extra session and on February 11, 1982, enacted for both the 
Senate and House revised redistricting plans which divided 
some counties both in areas covered and areas not covered by 
Section 5. Again, on April 19, 1982, the Attorney General 
interposed objections to the revised districting plans for both 



7a 

the Senate and House. The letter interposing objection ac­
knowledged some improvement of black voters' situation by 
reason of county division in Section 5 covered areas, but found 
the improvements insufficient to permit preclearance. The 
General Assembly once more reconvened in a second extra 
session on April 26, 1982, and on April 27, 1982, enacted a 
further revised plan which again divided counties both in areas 
covered and areas not covered by Section 5. That plan, embo­
died in chapters 1 and 2 of the North Carolina Session Laws of 
the Second Extra Session of 1982, received Section 5 preclear­
ance on April30, 1982. As precleared under Section 5, the plan 
constitutes the extant legislative districting law of the state, 
and is the subject of plaintiffs' ultimate challenge by amended 
and supplemented complaint in this action. 3 

During the course of the legislative proceedings above 
summarized, this action proceeded through its pre-trial 
stages. 4 Amended and supplemental pleadings accommodating 
to successive revisions of the originally challenged redistrict­
ing plan were allowed. Extensive discovery and motion prac­
tice was had; extensive stipulations of fact were made and 
embodied in pretrial orders. The presently composed three-

3 The final plan's division of counties in areas of the state not covered by 
Section 5 was challenged by voters in one such county on the basis that the 
division violated the state's 1968 constitutional prohibition. The claim was 
that in non-covered counties of the state the constitutional prohibition re­
mained in force, notwithstanding its suspension in covered counties by virtue 
of the Attorney General's objection. In Cavanagh v. Brock, No. 82-545-CIV-
5 (E.D.N.C. Sept. 22, 1983), which at one time was consolidated with the 
instant action, this court rejected that challenge, holding that as a matter of 
state law the constitutional provisions were not severable, so that their 
effective partial suspension under federal law resulted in their complete 
suspension throughout the state. 

4 At one stage in these proceedings another action challenging the 
· redistricting plan for impermissible dilution of the voting strength of black 

voters was consolidated with the instant action. In Pugh v. Hunt, No. 
81-1066-CIV-5, also decided this day, we earlier entered an order of the 
deconsolidation and permitted the black plaintiffs in that action to intervene 
as individual and representative plaintiffs in the instant action. 



8a 

judge court was designated by Chief Judge Harrison L. Winter 
of the United States Court of Appeals for the Fourth Circuit on 
October 16, 1981. The action was designated a plaintiff class 
action by stipulation of the parties on April2, 1982. Following 
enactment and Section 5 preclearance of the April 27, 1982, 
Senate and House districting plans, the pleadings were closed, 
with issue joined for trial on plaintiffs' challenge, by amended 
and supplemented complaint, to that finally adopted plan. 

Following a final pre-trial conference on July 14, 1983, trial 
to the three-judge court was held from July 25, 1983, through 
August 3, 1983. Extensive oral and documentary evidence was 
received. Decision was deferred pending the submission by 
both parties of proposed findings offact and conclusions oflaw, 
briefing and oral argument. Concluding oral arguments of 
counsel were heard by the court on October 14, 1983, and a 
limited submission of supplemental documentary evidence by 
both parties was permitted on December 5, 1983. 

Having considered the evidence, the memoranda oflaw sub­
mitted by the parties, the stipulations of fact , and the oral 
arguments of counsel, the court, pursuant to Fed.R.Civ.P. 
52(a), enters the following findings of fact and conclusions of 
law, prefaced with a discussion of amended Section 2 of the 
Voting Rights Act and of certain special problems concerning 
the proper interpretation and application of that section to the 
evidence in this case. 

II 

Amended Section 2 Of The Voting Rights Act 

From the outset of this action plaintiffs have based their 
claim of racial vote dilution not only on the fourteenth and 
fifteenth amendments, but on Section 2 of the Voting Rights 
Act. As interpreted by the Supreme Court at the .time this 
action was commenced, former Section 2, 5 secured no further 

5 Former Section 2, enacted pursuant to Congress's const itutional enforce­
ment powers, provided simply: 

No voting qualification or prerequisite to voting, or standard, practice, 
or procedure shall be imposed or applied by any State or political 

(footnote continued on next page) 



9a 

voting rights than were directly secured by those con­
stitutional provisions. To the extent "vote dilution" claims lay 
under either of the constitutional provisions or Section 2, 6 the 
requirements for proving such a claim were the same: there 
must have been proven both a discriminatorily "dilutive" effect 
traceable in some measure to a challenged electoral mechanism 
and, behind that effect, a specific intent on the part of responsi­
ble state officials that the mechanism should have had the 
effect. City of Mobile v. Bolden, 446 U.S. 55 (1980). 

While this action was pending for trial and after the 
ultimately challenged redistricting plan had been enacted and 
given Section 5 preclearance, Congress amended Section 27 in 
drastic and, for this litigation, critically important respects. In 
rough summary, the amended version liberalized the statutory 
vote dilution claim in two fundamental ways. It removed any 
necessity that discriminatory intent be proven, leaving only 
the necessity to show dilutive effect traceable to a challenged 
electoral mechamism; and it made explicit that the dilutive 
effect might be found in the "totality of the circumstances" 
within which the challenged mechanism operated and not alone 
in direct operation of the mechamism. 

(footnote continued from previous page) 
subdivision to deny or abridge the right of any citizen of the United 
States to vote on account of race or color, or m contravention of the 
guarantees set forth in Section 1973b(f)(2) of this title. 

42 u.s.c. § 1973 (1976). 
6 It is not now perfectly clear-but neither is it of direct consequence 

here-whether a majority of the Supreme Court considers that a racial vote 
dilution claim, as well as a direct vote denial claim, lies under the fifteenth 
amendment and, in consequence, lay under former Section 2. See RogeTs v. 
Lodge, 458 U.S. 613, 619 n.16 (1982). It is well settled, however, that such 
claims lie under the fourteenth amendment, though only upon proof of intent 
as well as effect. See City of Mobile v. Bolden, 446 U.S. 55 (1980). 

7 H. R. 3112, amending Section 2 and extending the Voting Rights Act of 
1965, was passed by the House on October 15, 1981. On June 18, 1982, the 
Senate adopted a different version, S. 1992, reported out of its Committee on 
the Judiciary. The House unanimously adopted the Senate bill on June 23, 
1982, and it was signed into law by the President on June 29, 1982. There was 
no intervening conference committee action. 



lOa 

Following Section 2's amendment, plaintiffs amended their 
complaint in this action to invoke directly the much more 
favorable provisions of the amended statute. All further 
proceedings in the case have been conducted on our perception 
that the vote dilution claim would succeed or fail under 
amended Section 2 as now the obviously most favorable basis of 
claim. 8 

Because of the amended statute's profound reworking of 
applicable law and.because of the absence of any authoritative 
Supreme Court decisions interpreting it, 9 we preface our find­
ings and conclusions with a summary discusson of the amended 
statute and of our understanding of its proper application of the 
vote dilution claim, we may properly rest decision on the 
amended statute alone and thereby avoid addressing the still 
subsisting constitutional claims seeking the same relief. See 
Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 
(1936) (Brandeis, J., concurring). 

8 Of course, the direct claims under the fourteenth (and possibly the 
fifteenth) amendment remain, and could be established under Bolden by 
proof of a dilutive effect intentionally inflicted. But no authoritative decision 
has suggested that proof alone of an unrealized discriminatory intent to 
dilute would suffice. A dilutive effect remains an essential element of con­
stitutional as well as Section 2 claims. See Hartman, Racial Vote Dilution 
and Separation of Powers: An E xploraton of the Conflict Between the 
Judicial "Intent" and the Legislative "Results" Standards, 50 Geo. W.L. 
Rev. 689, 737-38 n.318 (1982) . Neither is there any suggestion that the 
remedy for an unconstitutional intentional dilution should be any more 
favorable than the remedy of discriminatory intent might nevertheless have 
limited relevance in establishing a Section 2 "results" claim is another 
matter. 

9 There have, however, been a few lower federal court decisions interpret­
ing and applying amended Section 2 to state and local electoral plans. All 
generally support the Major v. Treen, Civil Action No. 82-1192 Section C 
(E .D. La. Sept. 23, 1983) (three-judge court); Rybicki v. State Board of 
Elections, No. 81-C-6030 (N.D. Ill. Jan. 20, 1983) (three-judge court); Tho­
masville Branch of NAACP v. Thomas Cmmty, Civil Action No. 75-34-
THOM (M.D. Ga.Jan. 26, 1983); Jones v. City of Lubbock, Civil Action No. 
CA-5-76-34 (N.D. Tex. Jan. 20, 1983); Taylor v. Haywood County , 544 F. 
Supp. 1122 (W.D. Tenn. 1982) (on grant of preliminary injunction). 



lla 

Section 2, as amended, reads as follows: 

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

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

Without attempting here a detailed analysis of the legisla­
tive history leading to enactment of amended Section 2, we 
deduce from that history and from the judicial sources upon 
which Congress expressly relied in formulating the statute's 
text the following salient points which have guided our applica­
tion of the statute of the facts we have found. 

First. The fundamental purpose of the amendment to Sec­
tion 2 was to remove intent as a necessary element of racial 
vote dilution claims brought under the statute. 10 

10 Senator Dole, sponsor of the compromise Senate version ultimately 
enacted as Section 2, stated that one of his "key objectives" in offering it was 
to 

make it unequivocally clear that plaintiffs may base a violation of Sec­
tion 2 on a showing of discriminatory "results", in which case proof of 
discriminatory intent or purl?ose would be neither required , nor rele­
vant. I was convinced of the mappropriateness of an "intent standard" 

(footnote continued on next page) 



12a 

This was accomplished by codifying in the amended statute 
the racial vote dilution principles applied by the Supreme 
Court in its pre-Bolden decision in White v. R egester, 412 U.S. 
755 (1973). That decision, as assumed by the Congress, 11 re­
quired no more to establish the illegality of a state's electoral 
mechanism than proof that its "result," irrespective of intent, 
when assessed in "the totality of circumstances" was "to cancel 
out or minimize the voting strength of racial groups," I d. at 765 
- in that case by submerging racial minority voter concentra­
tions in state multi-member legislative districts. The White v. 
Regester racial vote dilution principles, as assumed by the 
Congress, were made explicit in new subsection (b) of Section 2 
in the provision that such a "result," hence a violation of se­
cured voting rights, could be established by proof "based on 
the totality of circumstances . . . that the political processes 
leading to nomination or election . .. are not equally open to 
participation" by members· of protected minorities. Cf. id. at 
766. 

Second. In determining whether, "based on the totality of 
circumstances," a state's electoral mechanism does so "result" 
in racial vote dilution, the Congress intended that courts 
should look to the interaction of the challenged mechanism 
with those historical, social and political factors generally sug­
gested as probative of dilution in White v. Regester and sub-

(footnote continued from previous page) 
as the sole means of establishing a voting rights claim, as were the 
majority of my colleagues on the Committee. 

S. Rep. No. 417, 97th Cong., 2d Sess. 193 (1982) (additional views of Sen. 
Dole) (hereinafter S. Rep. No. 97-417). 

11 Congressional opponents of amended Section 2 contended in debate that 
White v. Regester did not actually apply a "results only" test, but that, 
properly interpreted, it required, and by implication found , intent also 
proven. The right or wrong of that debate is essentially beside the point for 
our purposes. We seek only Congressional intent, which clearly was to adopt 
a "results only" standard by codifying a decision unmistakably assumed­
whether or not erroneously-to have embodied that standard. See Hartman, 
Racial Vote Dilution, supra note 8, at 725-26 & n.236. 



13a 

sequently elaborated by the former Fifth Circuit in Zimmer v. 
McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en bane), affd on 
other grounds sub nom. East Carroll Parish School Board v. 
Marshall, 424 U.S. 636 (1976) (per curiam). These typically · 
include, per the Senate Report accompanying the compromise 
version enacted as amended Section 2: 

1. the extent of any history of official discrimination in 
the state or political subdivision that touched the right of 
the members of the minority group to register, to vote, or 
otherwise to participate in the democratic process; 

2. the extent to which voting in the elections of the 
state or political subdivision is racially polarized; 

3. the extent to which the state or political subdivision 
has used unusually large election districts, majority vote 
requirements, anti-single shot provisions, or other voting 
practices or procedures that may enhance the opportunity 
for discrimination against the minority group; 

4. if there is a candidate slating process, whether the 
members of the mimority group have been denied access 
to that process; 

5. the extent to which members of the minority group 
in the state or political subdivision bear the effects of 
discrimination in such areas as education, employment 
and health, which hinder their ability to participate effec­
tively in the political process; 

6. whether political campaigns have been character­
ized by overt or subtle racial appeals; 

7. the extent to which members of the minority gToup 
have been elected to public office in the jurisdiction. 

Additional factors that in some cases have had proba­
tive value as part of plaintiffs' evidence to establish a 
violation are: 

whether there is a significant lack of responsiveness 
on the rart of elected officials to the particularized 
needs o the members of the minority group. 

whether the policy underlying the state or political 
subdivision's use of such voting qualification, prere­
quisite to voting, or standard, practice or procedure is 
tenuous. 



14a 

While these enumerated factors will often be the more 
relevant ones, in some cases other factors will be indica­
tive of the alleged dilution. 

S. Rep. No. 97-417, supra note 10, at28-29 (footnotes omitted). 

Third. Congress also intended that amended Section 2 
should be interpreted and applied in conformity with the 
general body of pre-Bolden racial vote dilution jurisprudence 
that applied the White v. Regester test for the existence of a 
dilutive "result. "12 

Critical in that body of jurisprudence are the following prin­
ciples that we consider embodied in the statute. 

The essence of racial vote dilution in the White v. Regester 
sense is this: that primarily because of the interaction of sub­
stantial and persistent racial polarization in voting patterns 
(racial bloc voting) with a challenged electoral mechanism, a 
racial minority with distinctive group interests that are cap­
able of aid or amelioration by government is effectively denied 
the political power to further those interests that numbers 
alone would presumptively, see United Jewish Organization v. 
Carey, 430 U.S. 144, 166 n.24 (1977), give it in a voting con­
stituency not racially polarized in its voting behavior. See 
Nevett v. Sides, 571 F.2d 209,223 & n.16 (5th Cir. 1978). Vote 
dilution in this sense can exist notwithstanding the relative 
absence of structural barriers to exercise of the electoral fran­
chise. It can be enhanced by other factors- cultural, political, 
social, economic - in which the racial minority is relatively 
disadvantaged and which further operate to diminish practical 
political effectiveness. Zimmer v. McKeithen, supra. But the 
demonstrable unwillingness of substantial numbers of the ra-

12 SeeS. Rep. No. 97-417, supra note 10, at 32 ("[T]he legislative intent [is] 
to incorporate [White v. R egester} and extensive case law .. . which de­
velpped around it."). See also id. at 19-23 (Bolden characterized as "a marked 
departure from [the] prior law" of vote dilution as applied in White v. 
Regester, Zimmer v. McKeithen, and a number of other cited federal deci­
sions following White v. Regester). 



15a 

cial majority to vote for any minority race candidate or any 
candidate identified with minority race interests is the linchpin 
of vote dilution by districting. Nevett v. Sides, supra; see also 
Rogers v. Lodge, 458 U.S. 613, 623 (1981) (emphasizing cen­
trality of bloc voting as evidence of purposeful discrimination). 

The mere fact that blacks constitute a voting or population 
minority in a multi-member district does not alone establish 
that vote dilution has resulted from the districting plan. See 
Zimmer, 485 F .2d at 1304 ("axiomatic" that at-large and multi­
member districts are not per se unconstitutional). Nor does the 
fact that blacks have not been elected under a challenged 
districting plan in numbers proportional to their percentage of 
the population. I d. at 1305. 13 

On the other hand, proof that blacks constitute a population 
majority in an electoral district does not per se establish that no 
vote dilution results from the districting plan, at least where 
the blacks are a registered voter minority. I d. at 1303. Nor 
does proof that in a challenged district blacks have recently 
been elected to office. Id. at 1307. 

Vote dilution in the White v. Regester sense may result from 
the fracturing into several single-member districts as well as 
from the submergence in one multi-member district of black 
voter concentrations sufficient, if not "fractured" or "sub­
merged," to constitute an effective single-member district vot­
ing majority. See Nevett v. Sides, 571 F.2d 209, 219 (5th Cir. 
1978). 

Fourth. Amended Section 2 embodies a congressional pur­
pose to remove all vestiges of minority race vote dilution 
perpetuated on or after the amendment's effective date by 
state or local electoral mechanisms. 14 To accomplish this, Con-

13 This we consider to be the limit of the intended meaning of the disclaimer 
in amended Section 2 that "nothing in this section establishes a right to have 
members of a protected class elected in numbers equal to their proportion in 
the population." 42 U.S.C. § 1973. 

14 Both the Senate and House Committee Reports assert a purpose to 
forestall further purposeful discrimination that might evade remedy under 

(footnote continued on next page) 



16a 

gTess has exercised its enforcement powers under section 5 of 
the fourteenth and section 2 of the fifteenth amendments15 to 
create a new judicial remedy by private action that is broader 
in scope than were existing private rights of action for con­
stitutional violations of minority race voting rights. Specifical­
ly, this remedy is designed to provide a means for bringing 
states and local governments into compliance with con­
stitutional guarantees of equal voting rights for racial minori­
ties without the necessity to prove an intentional violation of 
those rights. 16 

Fifth. In enacting amended Section 2, CongTess made a 
deliberate political judgment that the time had come to apply 

(footnote continued from previous page) 
the stringent intent-plus-effects test of Bolden and to eradicate existing or 
new mechanisms that perpetuate the effects of past discrimination. See S. 
Rep. 97-417, supra note 10, at 40; H.R. Rep. No. 227, 97th Cong., 1st Sess. 
31 (1981) (hereinafter H.R. Rep. No. 97-227). 

We accept-and it is not challenged in this action by the state defendants­
that Congress intended the amendment to apply to litigation pending upon 
its effective date. See Major v. Treen, supra, slip op. at 40-41 n.20. 

15 Both the Senate and House Committee Reports express an intention 
that amended Section 2 be regarded as remedial rather than merely redefini­
tional of existing constitutional voting rights. SeeS. Rep. No. 97-417, supra 
note 10, at 39-43; H.R. Rep. No. 97-227, supra note 14, at 31. 

16 Congressional proponents of amended Section 2 were at pains in debate 
and committee reports to disclaim any intention or power by Congress to 
overrule the Supreme Court's constitutional interpretation in Bolden only 
that the relevant constitutional provisions prohibited intentional racial vote 
dilution, and to assert instead a power comparable to that exercised in the 
enactment of Section 5 of the Voting Rights Act to provide a judicial remedy 
for enforcement of the state's affirmative obligations to come into com­
pliance. See , e.g., S. Rep. 97-417, supra note 10, at 41 ("Congress cannot 
alter the judicial interpretations in Bolden ... . [T]he proposal is a proper 
statutory exercise of Congress' enforcement power .... "). 

No challenge is made in this action to the constitutionality of Section 2 as a 
valid exercise of Congress's enforcement powers under the fourteenth (and 
possibly fifteenth) amendment, and we assume constitutionality on that 
basis. See Major v. Treen, supra, slip op. 44-61 (upholding constitutionality 
against direct attack). 



17a 

the statute's remedial measures to present conditions of racial 
vote dilution that might be established in particular litigation; 
that national policy respecting minority voting rights could no 
longer await the securing of those rights by normal political 
processes, or by voluntary action of state and local govern­
ments, or by judicial remedies limited to proof of intentional 
racial discrimination. See, e.g., S. Rep. 97-417, supra note 10, 
at 193 (additional view of Senator Dole) (asserting purpose to 
eradicate "racial discrimination which . . . still exists in the 
American electoral process"). 

In making that political judgment, Congress necessarily 
took into account and rejected as unfounded, or assumed as 
outweighed, several risks to fundamental political values that 
opponents of the amendment urged in committee deliberations 
and floor debate. Among these were the risk that the judicial 
remedy might actually be at odds with the judgment of signifi­
cant elements in the racial minority;17 the risk that creating 
"safe" black-majority single-member districts would perpetu­
ate racial ghettos and racial polarization in voting behavior/8 

the risk that reliance upon the judicial remedy would supplant 
the normal, more healthy processes of acquiring political pow­
er by registration, voting and coalition building; 19 and the 

17 See Voting Rights Act: Hearings Before the Subcomm. on the Constitu­
tionoftheSenate Comm. on the Judiciary , 97th Cong., 2d Sess. 542-46 (Feb. 
1, 1982) (hereafter Senate Hearings) (prepared statement of Professor Mc­
Manus, pointing to disagreements within black community leadership over 
relative virtues of local districting plans). 

18 See Subcommittee on the Constitution of the Senate Committee on the 
Judiciary, 97th Con g., 2d Sess., Voting Rights Act, Report on S. 1992, at 
42-43 (Corum. Print 1982) (hereafter Subcommittee Report), reprinted inS. 
Rep. No. 97-417, supra note 10, 107, 149 (asserting "detrimental con­
sequence of establishing racial polarity in voting where none existed, or was 
merely episodic, and of establishing race as an accepted factor in the decision­
making of elected officials"); Subcommittee R eport, supra, at 45, Teprinted 
inS. Rep. No. 97-417, supra note 10, at 150 (asserting that amended Section 
2 would aggravate segregated housing patterns by encouraging blacks to 
remain in safe black legislative districts). 

19 See Subcommittee R eport, supm note 18, at 43-44, reprinted in S. Rep. 
No. 97-417, supra note 10, at 149-50. 



18a 

fundamental risk that the recognition of "group voting rights" 
and the imposing of affirmative obligation upon government to 
secure those rights by race-conscious electoral mechanisms 
was alien to the American political tradition. 20 

For courts applying Section 2, the significance of Congress's 
general rejection or assumption of these risks as a matter of 
political judgment is that they are not among the circum­
stances to be considered in determining whether a challenged 
electoral mechanism presently "results" in racial vote dilution, 
either as a new or perpetuated condition. If it does, the remedy 
follows, all risks to these values having been assessed and 
accepted by Congress. It is therefore irrelevant for courts 
applying amended Section 2 to speculate or to attempt to make 
findings as to whether a presently existing condition of racial 
vote dilution is likely in due course to be removed by normal 
political processes, or by affirmative acts of the affected 
government, or that some elements of the racial minority 
prefer to rely upon those processes rather than having the 
judicial remedy invoked. 

III 

Findings of Fact 

A. 

The Challenged Districts 

The redistricting plans for the North Carolina Senate and 
House of Representatives enacted by the General Assembly of 
North Carolina in April of 1982 included six multi-member 
districts and one single-member district that are the subjects 
of the racial vote dilution challenge in this action. 

20 See Senate Hearings, supra, note 17, at 1351-54 (Feb. 12, 1982) (pre­
pared statement of Professor Blumstein); id. at 509-10 (Jan. 28, 1982) (pre­
pared statement of Professor Erler), reprinted in S. Rep. No. 97-417, supra 
note 10, at 147; id. at 231 (Jan. 27, 1982) (testimony of Professor Berns), 
reprinted in S. Rep. No. 97-417, supra note 10, at 147. 



19a 

The multi-member districts, each of which continued pre­
existing districts and apportionments, are as follows, with 
their compositions, and their apportionments of members and 
the percentage of their total populations and of their registered 
voters that are black: 

District 

Senate No. 22 (Mecklenburg 
and Gabarrus Counties (4 
members) 

House No. 36 (Mecklenburg 
County) (8 members) 

House No. 39 (Part of For­
syth County) (5 members) 

House No. 23 (Durham 
County) (3 members) 

House No. 21 (Wake County) 
(6 members) 

House No. 8 (Wilson, Nash 
and Edgecombe Counties) 
(4 members) 

%of Population 
that is Black 

24.3 

26.5 

25.1 

36.3 

21.8 

39.5 

% of Registered Voters 
that is Black 

(as of 1014182) 

16.8 

18.0 

20.8 

28.6 

15.1 

29.5 

As these districts are constituted, black citizens make up 
distinct population and registered-voter minorities in each. 

Of these districts, only House District No. 8 is in an area of 
the state covered by § 5 of the Voting Rights Act. 

At the time of the creation of these multi-member districts, 
there were concentrations of black citizens within the bound­
aries of each that were sufficient in numbers and contiguity to · 
constitute effective voting majorities in single-member dis­
tricts lying wholly within the boundaries of the multi-member 
districts, which single-member districts would satisfy all con­
stitutional requirements of population and geographical con­
figuration. For example, concentrations of black citizens em-



20a 

braced within the following single-member districts, as de­
picted on exhibits before the court, would meet those criteria: 

Single-Member District: 
location and racial 

Multi-Member District composition Exhibit 

Senate No. 22 Part of Mecklenburg County; Pl. Ex. 9 
(Mecklenburg/Cabarrus 70.0% Black 

Counties) 
House No. 36 (1) Part of Mecklenburg County; Pl. Ex. 4 
(Mecklenburg County) 66.1% Black 

(2) Part of Mecklenburg County; Pl. Ex. 4 
71.2% Black 

House No. 39 Part of Forsyth County; 70.0% Pl. Ex. 5 
(Part of Forsyth County) Black 
House No. 23 Part of Durham County; 70.9% Pl. Ex. 6 
(Durham County) Black substitute 
House No. 21 Part of Wake County; 67.0% Pl. Ex. 7 
(Wake County) Black 
House No.8 Parts of Wilson, Edgecombe and Pl. Ex. 8 
(Wilson, Edgecombe, Nash Nash Counties; 62.7% Black 

Counties) 

The single-member district is Senate District No. 2 in the 
rural northeastern section of the state. It was formed by ex­
tensive realignment of existing districts to encompass an area 
which formerly supplied components of two multi-member 
Senate districts (No.1 of2 members; No.6 of2 members). It 
consists of the whole of Northampton, Hertford, Gates, Ber­
tie, and Chowan Counties, and parts of Washington, Martin, 
Halifax and Edgecombe Counties. Black citizens made up 
55.1% of the total population of the district, and 46.2% of the 
population that is registered to vote. This does not constitute 
them an effective voting majority in this district. 21 

21 We need not attempt at this point to define the exact population level at 
which blacks would constitute an effective (non-diluted) voting majority, 
either generally or in this area. Defendant's expert witness testified that a 
general "rule of thumb" for insuring an effective voting majority is 65%. This 

(footnote continued on next page) 



21a 

This district is in an area of the state covered by § 5 of the 
Voting Rights Act. 

At the time of creation of this single-member district, there 
was a concentration of black citizens within the boundaries of 
this district and those of adjoining Senate District No. 6 that 
was sufficient in numbers and in contiguity to constititute an 
effective voting majority in a single-member district, which 
single-member district would satisfy all constitutional require­
ments of population and geographical configuration. For ex­
ample, a concentration of black voters embraced within a dis­
trict depicted on Plaintiffs Exhibit 10(a) could minimally meet 
these criteria, though a still larger concentration might prove 
necessary to make the majority a truly effective one, depend­
ing upon experience in the new district alignments. In such a 
district, black citizens would constitute 60.7% of the total 
population and 51.02% of the registered voters (as contrasted 
with percentages of 55.1% and 46.2%, respectively, in chal­
lenged Senate District 2). 

B 

Circumstances Relevant To The Claim Of Racial Vote 
Dilution: The "Zimmer Factors" 

At the time the challenged districting plan was enacted in 
1982, the following circumstances affected the plan's effect 

(footnote continued from previous page) 
is the percentage used as a "benchmark" by the Justice Department in 
administering § 5. Plaintiffs' expert witness opined that a 60% population 
majority in the area of this district could only be considered a "competitive" 
one rather than a "safe" one. 

On the uncontradicted evidence adduced we find- and need only find for 
present purposes-that the extant 55.1% black population majority does not 
constitute an effective voting majority, i.e., does not establish per se the 
absence of racial vote dilution, in this district. See Kirksey v. Board of 
Supervisors, 554 F.2d 139, 150 (5th Cir. 1977) ("Where .. . cohesive black 
voting strength is fragmented among districts, ... the presence of districts 
with bare population majorities not only does not necessarily preclude 
dilution but .. . may actually enhance the possibility of continued minority 
political impotence."). 



22a 

upon the voting strength of black voters of the state (the 
plaintiff class), and particularly those in the areas of the chal­
lenged districts. 

A History Of Official Discrimination Against Black Citizens 
In Voting Matters 

Following the emancipation of blacks from slavery and the 
·period of post-war Reconstruction, the State of North Carolina 
had officially and effectively discriminated against black 
citizens in matters touching their exercise of the voting fran­
chise for a period of around seventy years, roughly two genera­
tions, from ca. 1900 to ca. 1970. The history of black citizens' 
attempts since the Reconstruction era to participate effective­
ly in the political process and the white majority's resistance to 
those efforts is a bitter one, fraught with racial animosities that 
linger in diminished but still evident form to the present and 
that remain centered upon the voting strength of black citizens 
as an identified group. 

From 1868 to 1875, black citizens, newly emancipated and 
given the legal right to vote, effectively exercised the fran­
chise, in coalition with white Republicans, to control the state 
legislature. In 1875, the Democratic Party, overwhelmingly 
white in composition, regained control of state government 
and began deliberate efforts to reduce participation by black 
citizens in the political processes. These efforts were not imme­
diately and wholly successful and black male citizens continued 
to vote and to hold elective office for the remainder of the 
nineteenth century. 

This continued participation by black males in the political 
process was furthered by Fusionists' (Populist and Republican 
coalition) assumption of control of the state legislature in 1894. 
For a brief season, this resulted in legislation favorable to 
black citizens' political participation as well as their economic 
advancement. 

The Fusionists' legislative program favorable to blacks im­
pelled the white-dominated Democratic Party to undertake an 



23a 

overt white supremacy political compaign to destroy the 
Fusionist coalition by arousing white fears of Negro rule. This 
campaign, characterized by blatant racist appeals by pamphlet 
and cartoon, aided by acts of outright intimidation, succeeded 
in restoring the Democratic Party to control of the legislature 
in 1898. The 1898 legislature then adopted constitutional 
amendments specifically designed to disenfranchise black vo­
ters by imposing a poll tax and a literacy test for voting with a 
grandfather clause for the literacy test whose effect was to 
limit the disenfranchising effect to blacks. The amendments 
were adopted by the voters of the state, following a compara­
ble white supremacy campaign, in 1900. The 1900 official litera­
cy test continued to be freely applied for 60 years in a variety of 
forms that effectively disenfranchised most blacks. In 1961, 
the North Carolina Supreme Court declared unconstitutional 
the practice of requiring a registrant to write theN orth Caroli­
na Constitution from dictation, but upheld the practice of 
requiring a registrant "of uncertain ability" to read and copy in 
writing the state Constitution. Bazemore v. Bertie County 
Board of Elections, 254 N.C. 398 (1961). At least until around 
1970, the practice of requiring black citizens to read and write 
the Constitution in order to vote was continued in some areas of 
the state. Not until around 1970 did the State Board of Elec­
tions officially direct cessation of the administration of any 
form of literacy test. 

Other official voting mechanisms designed to minimize or 
cancel the potential voting strength of black citizens were also 
employed by the state during this period. In 1955, an anti­
single shot voting law applicable to specified municipalities and 
counties was enacted. It was enforced, with the intended effect 
of fragmenting a black minority's total vote between two or 
more candidates in a multi-seat election and preventing its 
concentration on one candidate, until declared unconstitutional 
in 1972 inDunstonv. Scott, 336 F. Supp. 206 (E.D.N.C. 1972). 
In 1967, a numbered-seat plan for election in multi-member 
legislative districts was enacted. Its effect was, as intended, to 
prevent single-shot voting in multi-member legislative dis-



24a 

tricts. It was applied until declared unconstitutional in the 
Dunston case, supra, in 1972. 

In direct consequence of the poll tax and the literacy test, 
black citizens in much larger percentages of their total num­
bers than the comparable percentages of white citizens were 
either directly denied registration or chilled from making the 
attempt from the time of imposition of these devices until their 
removal. After their removal as direct barriers to registration, 
their chilling effect on two or more generations of black citizens 
has persisted to the present as at least one cause of continued 
relatively depressed levels of black voter registration. Be­
tween 1930 and 1948 the percentage of black citizens who 
successfully sought to register under the poll tax and literacy 
tests increased from zero to 15%. During this eighteen-year 
period that only ended after World War II; no black was 
elected to public office in the state. In 1960, twelve years later, 
after the Supreme Court decision in Brown v. Board of E duca­
tion , 347 U.S. 483 (1954), only 39.1% of the black voting age 
population was registered to vote, compared to 92.1% of age­
qualified whites. By 1971, following the civil rights movement, 
44.4% of age-qualified blacks were registered compared to 
60.6% of whites. This general range of statewide disparity 
continued into 1980, when 51.3% of age-qualified blacks and 
70.1% of whites were registered , and into 1982 when 52.7% of 
age-qualified blacks and 66.7% of whites were registered. 22 

22 The recent history of white and black voter registration statewide and in 
the areas of the challenged districts is shown on the following chart . 

Whole State 
Mecklenburg 
Forsyth 
Durham 
Wake 
Wilson 

Percent of Voting Age 
Population R egistered to Vote 

10/78 10180 10182 
White Black White Black White Black 
61.7 43.7 70.1 51.3 66.7 52.7 
71.3 40.8 73.8 48.4 73.0 50.8 
65.8 58.7 76.3 67.7 69.4 64.1 
63.0 39.4 70.7 45.8 66.0 52.9 
61.2 37.5 76.0 48.9 72.2 49.7 
60.9 36. 3 66.9 40.9 64.2 48.0 

(footnote continued on next page) 



25a 

Under the present Governor's administration an intelligent 
and determined effort is being made by the State Board of 
Elections to increase the percentages of both white and black 
voter registrations, with special emphasis being placed upon 
increasing the levels of registration in groups, including 
blacks, in which tho1:3e levels have traditionally been depressed 
relative to the total voting age population. This good faith 
effort by the currently responsible state agency, directly 
reversing official state policies which persisted for more than 
seventy years into this century, is demonstrably now produc­
ing some of its intended results. If continued on a sustained 
basis over a sufficient period, the effort might succeed in 
removing the disparity in registration which survives as a 
legacy of the long period of direct denial and chilling by the 
state of registration by black citizens. But at the present time 
the gap has not been closed, and there is of course no guarantee 
that the effort will be continued past the end of the present 
state administration. 

The present condition - which we assess - is that, on a 
statewide basis, black voter registration remains depressed 
relative to that of the white majority, in part at least because of 
the long period of official state denial and chilling of black 

(footnote continued from previous page) 

Edgecombe 
Nash 
Bertie 
Chowan 
Gates 
Halifax 
Hertford 
Martin 
Northampton 
Washington 

Percent of Voting Age 
Population Registered to Vote 

10/78 10/80 
White Black White Black 
63.8 37.9 68.2 50.4 
61.2 39.0 72.0 41.2 
75.6 46.0 77.0 54.1 
71.3 44.3 77.4 53.9 
80.9 73.5 83.9 77.8 
66.8 40.9 72.0 50.4 
75.6 56.6 81.8 62.5 
69.3 49.7 76.9 55.3 
72.4 58.5 77.0 63.9 
74.3 62.8 82.2 66.0 

10/82 
White Black 
62.7 53.1 
64.2 43.0 
74.6 60.0 
74.1 54.0 
83.6 82.3 
67.3 55.3 
68.7 58.3 
71.2 53.3 
82.1 73.9 
75.6 67.4 



26a 

citizens' registration efforts. This statewide depression of 
black voter registration levels is generally replicated in the 
areas ofthe challenged districts, and .in each is traceable in part 
at least to the historical statewide pattern of official dis-
crimination here found to have existed. · 

Effects Of Racial Discrimination In Facilities, Education, 
Employment, Housing And Health 

In consequence of a long history, only recently alleviated to 
some degree, of racial di~crimination in public and private 
facility uses, education, employment, housing and health care, 
black registered voters of the state remain hindered, relative 
to the white majority, in their ability to participate effectively 
in the political process. 

At the start of this century, de jure segregation of the races 
in practically all areas of their common life existed in North 
Carolina. This condition continued essentially unbroken for 
another sixty-odd years, through both World Wars and the 
Korean conflict, and through the 1950's. During this period, in 
addition to prohibiting inter-racial marriages, state statutes 
provided for segregation of the races in fraternal orders and 
societies; the seating and waiting rooms of railroads and other 
common carriers; cemeteries; prisons, jails and juvenile deten­
tion centers; institutions for the blind, deaf and mentally ill; 
public and some private toilets; schools and school districts; 
orphanages; colleges; and library reading rooms. With the 
exception of those laws relating to schools and colleges, most of 
these statutes were not repealed until after passage of the 
federal Civil Rights Act of 1964, some as late as 1973. 

Public schools in North Carolina were officially segregated 
by race until 1954 when Brown v. Board of Education was 
decided. During the long period of de jure segregation, the 
black schools were consistently less well funded and were 
qualitatively inferior. Following the Brown decision, the pub­
lic schools remained substantially segTegated for yet another 
fifteen years on a de facto basis, in part at least because of 
various practical impediments erected by the state to judicial 



27a 

enforcement of the constitutional right to desegregated public 
education recognized in Brown. As late as 1960, only 226 black 
students throughout the entire state attended formerly all­
white public schools. Until the end of the 1960's, practically all 
the state's public schools remained almost all white or almost 
all black. Substantial desegregation of the public schools only 
began to take place around a decade ago, following the Su­
preme Court's decision in Swann v. Mecklenburg County 
Board of Education, 402 U.S. 1 (1971). In the interval since, 
"white-flight" patterns in some areas of the state have pre­
vented or reversed developing patterns or desegregation of 
the schools. In consequence, substantial pockets of de facto 
segregation of the races in public school education have re­
arisen or have continued to exist to this time though without 
the great disparities in public funding and other support that 
characterized de jure segregation of the schools. 

Because significant desegregation of the public schools only 
commenced in the early 1970's, most of the black citizens of the 
state who were educated in this state and who are over 30 years 
of age attended qualitatively inferior racially segregated pub­
lic schools for all or most of their primary and secondary 
education. The first group of black citizens who have attended 
integrated public schools throughout their educational careers 
are just now reaching voting age. In at least partial con­
sequence of this segregated pattern of public education and the 
general inferiority of de jure segregated black schools, black 
citizens of the state who are over 25 year of age are substantial­
ly more likely than whites to have completed less than 8 years 
of education (34.6% of blacks; 22.0% of whites), and are sub­
stantially less likely than whites to have had any schooling 
beyond high school (17.3% of blacks; 29.3% of whites). 

Residential housing patterns in North Carolina, as generally 
in states with histories of de jure segregation, have traditional­
ly been separated along racial lines. That pattern persists 
today in North Carolina generally and in the areas covered by 
the challenged districts specifically; in the latter, virtually all 
residential neighborhoods are racially identifiable. Statewide, 



28a 

black households are twice as likely as white households to be 
renting rather than purchasing their residences and are sub­
stantially more likely to be living in overcrowded housing, 
substandard housing, or housing with inadequate plumbing. 

Black citizens of North Carolina have historically suffered 
disadvantage relative to white citizens in public and private 
employment. Though federal employment discrimination laws 
have, since 1964, led to improvement, the effects of past dis­
crimination against blacks in employment continue at present 
to contribute to their relative disadvantage. On a statewide 
basis, generally replicated in the challenged districts in this 
action, Blacks generally hold lower paying jobs than do whites, 
and consistently suffer higher incidences of unemployment. In 
public employment by the state, for example, a higher percen­
tage of black employees than of whites is employed at every 
salary level below $12,000 per year and a higher percentage of 
white employees than black is employed at every level above 
$12,000. 

At least partially because of this continued disparity in em­
ployment opportunities, black citizens are three times as likely 
as whites to have incomes below the poverty level (30% to 
10%); the mean income ofblack citizens is 64.9% that of white 
citizens; white families are more than twice as likely as black 
families to have incomes over $20,000; and 25.1% of all black 
families, compared to 7.3% of white families, have no private 
vehicle available for transportation. 

In matters of general health, black citizens of North Carolina 
are, on available primary indicators, as a group less physically 
healthy than are white citizens as a group. On a statewide 
basis, the infant mortality rate (the standard health measure 
used by sociologists) is approximately twice as high for non­
whites (predominately blacks) as for whites . This statewide 
figure is generally replicated in Mecklenburg, Forsyth, 
Durham, Wake, Wilson, Edgecombe and Nash Counties (all 
included within the challenged multi-member districts). 
Again, on a statewide basis , the death rate is higher for black 



29a 

citizens than for white, and the life-expectancy of black citizens 
is shorter than is that of whites. 

On all the socio-economic factors treated in the above find­
ings, the status of black citizens as a group is lower than is that 
of white citizens as a group. This is true statewide, and it is true 
with respect to every county in each of the districts under 
challenge in this action. This lower socioeconomic status gives 
rise to special group interests centered upon those factors. At 
the same time, it operates to hinder the group's ability to 
participate effectively in the political process and to elect rep­
resentatives of its choice as a means of seeking government's 
awareness of and attention to those interests. 23 

Other Voting Procedures That Lessen The Opportunity Of 
Black V qters To Elect Candidates Of Their Choice 

In addition to the numbered seat requirement and the anti­
single shot provisions of state law that were declared unconsti­
tutional in 1972, see supra p. 28, North Carolina has, since 
1915, had a majority vote requirement which applies to all 
primary elections, but not to general elections. N.C.G.S. 
§ 163-11!.24 

The general effect of a majority vote requirement is to make 
it less likely that the candidates of any identifiable voting 

23 Section 2 claimants are not required to demonstrate by direct evidence a 
causal nexus between their relatively depressed socio-economic status and a 
lessening of their opportunity to participate effectively in the political 
process. See S. Rep. No. 97-417, supra note 10, at 29 n.l14. Under 
incorporated White v. Regester jurisprudence, "[i]nequality of access is an 
inference which flows from the existence of economic and educational 
inequalities." Kirksey v. Board of Supervisors , 554 F.2d 139, 145 (5th Cir.), 
cert. denied , 434 U.S. 968 (1977). Independently of any such general 
presumption incorporated in amended Section 2, we would readily draw the 
inference from the evidence in this case. 

24 There is no suggestion that when originally enacted in 1915, its purpose 
was racially discriminatory. That point is irrelevant in assessing its present 
effect, as a continued mechanism, in the totality of circumstances bearing 
upon plaintiffs' dilution claim. See Part II , supra. 



30a 

minority will finally win elections, given the necessity that 
they achieve a majority of votes, if not in a first election, then 
(if called for) in a run-off election. This generally adverse effect 
on any cohesive voting minority is, of course, enhanced for 
racial minority groups if, as we find to be the fact in this case, 
see infra pp. 48-58, racial polarization in voting patterns also 
exists. 

While no black candidate for election to the North Carolina 
General Assembly-either in the challenged districts or 
elsewhere-has so far lost (or failed to win) an election solely 
because of the majority vote requirement, the requirement 
nevertheless exists as a continuing practical impediment to the 
opportunity of black voting minorities in the challenged dis­
tricts to elect candidates of their choice. 

The .North Carolina majority vote requirement manifestly 
operates with the general effect noted upon all candidates in 
primary elections. Since 1950, eighteen candidates for the 
General Assembly who led first primaries with less than a 
majority of votes have lost run-off elections, as have twelve 
candidates for other statewide offices, including a black candi­
date for Lt. Governor and a black candidate for Congress. The 
requirement therefore necessarily operates as a general, ongo­
ing impediment to any cohesive voting minority's opportunity 
to elect candidates of its choice in any contested primary, and 
particularly to any racial minority in a racially-polarized vote 
setting. 25 

North Carolina does not have a subdistrict residency 
requirement for members of the Senate and House elected 
from multi-member districts, a requirement which could to 
some degree off-set the disadvantage of any voting minority in 
multi-member districts. 26 

25 See White v. R egester, 412 U.S. 775, 766 (1973). 

26 See id. at 766 n. lO. 



31a 

Use Of Racial Appeals In Political Campaigns 

From the Reconstruction era to the present time, appeals to 
racial prejudice against black citizens have been effectively 
used by persons, either candidates or their supporters, as a 
means of influencing voters in North Carolina political cam­
paigns. The appeals have been overt and blatant at some times, 
more subtle and furtive at others. They have tended to be most 
overt and blatant in those periods when blacks were openly 
asserting political and civil rights-during the Reconstruction­
Fusion era and during the era of the major civil rights move­
ment in the 1950's and 1960's. During the period from ca. 1900 
to ca. 1948 when black citizens of the state were generally 
quiescent under de jure segregation, and when there were few 
black voters and no black elected officials, racial appeals in 
political campaigning were simply not relevant and according­
ly were not used. With the early stirrings of what became the 
civil rights movement following World War II, overt racial 
appeals reappeared in the campaign of some North Carolina 
candidates. Though by and large less gross and virulent than 
were those of the outright white supremacy campaigns of 50 
years earlier, these renewed racial appeals picked up on the 
same obvious themes of that earlier time: black domination or 
influence over "moderate" or "liberal" white candidates and 
the threat of "negro rule" or "black power" by blacks "bloc 
voting" for black candidates or black-"dominated" candidates. 
In recent years, as the civil rights movement, culminating in 
the Civil Rights Act of 1964, completed the eradication of de 
jure segregation, and as overt expressions of racist attitudes 
became less socially acceptable, these appeals have become 
more subtle in form and furtive in their dissemination, but they 
persist to this time. 

The record in this case -is replete with specific examples of 
this general pattern of racial appeals in political campaigns. In 
addition to the crude cartoons and pamphlets of the outright 
white supremacy campaigning of the 1890's which featured 
white political opponents in the company of black political 
leaders, later examples include various campaign materials, 



32a 

unmistakably appealing to the same racial fears and pre- · 
judices, that were disseminated during some of the most hotly 
contested statewide campaigns of the state's recent history: 
the 1950 campaign for the United States Senate; the 1954 
campaign for the United States Senate; the 1960 campaign for 
Governor; the 1968 campaign for Governor; the 1968 Presiden­
tial campaign in North Carolina; the 1972 campaign for the 
United States Senate; and most recently, in the imminent 1984 
campaign for the United States Senate. 

Numerous other examples of assertedly more subtle forms 
of "telegraphed" racial appeals in a great number of local and 
statewide elections, abound in the record. Laying aside the 
more attenuated forms of arguably racial allusions in some of 
these, we find that racial appeals in North Carolina political 
campaigns have for the past thirty years been widespread and 
persistent. 

The contents of these materials reveal an unmistakable in­
tention by their disseminators to exploit existing fears and 
prejudices and to create new fears and prejudices on the part of 
white citizens in regard to black citizens and to black citizens' 
participation in the political processes , of the state. The con­
tinued dissemination of these materials throughout this period 
and down to the present time evidences an informed percep­
tion by the persons who have disseminated them that they 
have had their intended effect to a degree warranting their 
continued use. 

On this basis, we find that the historic use of racial appeals in 
political campaigns in North Carolina persists to the present 
time and that its effect is presently to lessen to some degree the 
opportunity of black citizens to participate effectively in the 
political processes and to elect candidates of their choice. 

The Extent Of Election Of Black Citizens To Public Office 

Statewide history. It appears that, with one exception, no 
black citizen was elected during this century to public office in 
North Carolina until after World War II. In 1948 and during 



33a 

the early 1950's a few black citizens were elected to various city 
councils. Twenty years later, in 1970, there were in the state 62 
black elected officials. In 1969 a black citizen was elected to the 
State House of Representatives for the first time since Recon­
struction; in 1975 two blacks were elected, for the first time, to 
the Senate. From 1970 to 1975 the number of black elected 
officials increased from 62 to over 200 statewide; in 1982, that 
number had increased to 255. 

At present the number of elected black officials remains 
quite low in relation to total black population, which is 22.4% of 
the state total. Black citizens hold 9% of the city council seats 
(in cities of over 500 population); 7.3% of county commission 
seats; 4% of sheriffs offices; and 1% of the offices of Clerk of 
Superior Court. There are 19 black mayors, 13 of whom are in 

· majority black municipalities. Of the black city council mem­
bers, approximately 40% are from majority black municipali­
ties or election districts. Three black judges have been elected 
in statewide elections to seats to which they had been ap­
pointed by the Governor. Other than these judges, no black has 
yet been elected during this century to any statewide office or 
to the Congress of the United States as a representative of this 
state .. 

Between 1971 and 1982 there have been, at any given time, 
between two and four black members of the North Carolina 
House of Representatives out of a total of 120-between 1. 6% 
and 3.3%. From 1975 to 1983 there have been, at any given 
time, either one or two black members of the State Senate out 
of a total of 50-between 2% and 4%. Most recently, in 1982, 
after this action was filed, 11 black citizens were elected to the 
State House of Representatives. Six of those 11 were elected 
from multi-member districts in which blacks constituted a 
voting minority (including 5 of those challenged); 5 were 
elected from newly created majority black districts. 

Historically, in those multi-member districts where some 
blacks have succeeded in being elected, overall black candida­
cies have been significantly less successful than white candida-



34a 

cies have been significantly less successful than white candida­
cies. Black candidates who, between 1970 and 1982, won in 
Democratic primaries in the six multi-member districts under 
challenge here were three times as likely to lose in the general 
election as were their white Democratic counterparts, a fact of 
statistical significance in assessing the continued effect of race 
in those elections. 

In The Challenged Multi-Member Districts · 

House District 36 (Mecklenburg County); Senate District 22 
(Mecklenburg/Cabarrus Counties). 

In this century one black citizen has been elected to the State 
House of Representatives and one black citizen has been 
elected to the Senate from Mecklenburg County. The House 
member was elected as one of an eight-member delegation in 
1982, after this lawsuit was commenced. Seven other black 
citizens had previously run unsuccessfully for a House seat. 
The Senate member served as one of a 4-member delegation 
from Mecklenburg and Cabarrus Counties from 1975 to 1980. 
Since then two black citizens have run successfully and no 
black now serves on the Senate delegation. 

Since World War II, blacks, who now constitute 31% of the 
city's population, have been elected to the City Council of 
Charlotte, but never in numbers remotely proportional to their 
percentage of the city's population. During the period 1945 to 
1975, when the council was elected all at-large, blacks con­
stituted 5.4% of its membership. From 1977-1981, when the 
council was elected partially at-large and partially by districts , 
blacks won 28.6% of the district seats compared with 16.7% of 
the at-large seats, though more ran for the latter than the 
former. 

One black citizen has been elected (three times) and defeated 
one time for membership on the five-member County Board of 
Commissioners, and presently serves. Two black citizens have 
been elected and now serve on the nine-member County Board 
of Education. 



35a 

Following trial of this action, a black citizen was elected 
mayor of the City of Charlotte, running as a Democrat against 
a white Republican. The successful black candidate, a widely­
respected architect, received approximately 38% of the white 
vote. 

House District No. 29 (part of Forsyth County). 

Before 1974 Black citizens had been elected to the City 
Council ofWinston-Salem, but to no other public office. In 1974 
and again in 1976 a black citizen was elected to the House of 
Representatives as one of a five-member delegation. In 1978 
and 1980 other black citizens ran unsuccessfully for the House. 
In 1982, after this litigation was commenced, two black citizens 
were elected to the House. 

No black citizen has been elected to the Senate from Forsyth 
County. 

Since 1974, a black citizen has been elected, twice failed to be 
reelected, then succeeded in being reelected to one of eight 
seats on the otherwise all-white Board of Education; and 
another has been elected, failed to be reelected, then suc­
ceede~ in being reelected to one of five seats on the otherwise 
all-white Board of County Commissioners. 

House District No. 23 (Durham County). 

Since 1973 a black citizen has been elected each two-year 
term to the State House. No black citizen has been elected to 
the Senate. Since 1969, blacks have been elected to the Board 
of County Commissioners, and three of twelve Durham City 
Council members are blacks elected in at-large elections. The 
City of Durham is 4 7% black in population. 

House District No. 21 (Wake County). 

A black citizen has been twice elected to the State House 
five-member delegation from this district and is presently 
serving. Another black citizen was elected for two terms to the 
State Senate, serving from 1975 to 1978. 



36a 

A black citizen has been twice elected Sheriff of Wake Coun­
ty and is presently in that office. Another black citizen, who 
lives in an affluent white neighborhood, has served since 1972 
as the only black on the seven-member County Board of Com­
missioners. Another black citizen, elected from a majority 
black district, serves as the only black on the nine-member 
County School Board. Another black citizen served one term 
as mayor of the City of Raleigh from 1973 to 1975, and still 
another serves on the Raleigh City Council. 

House District No. 8 (Edgecombe, Nash, Wilson Counties). 

There has never been a black member of the State House or 
Senate from the area covered by this district. There had never 
been a black member of the Board of County Commissioners of 
any of the three counties until 1982 when two blacks were 
elected to the five-member Board in Edgecombe County, in 
which blacks constitute 43% of the registered voters. In Wilson 
County, where the black population is 36.5% of the total, one of 
nine members of the County Board of Education is black. In the 
City of Wilson, which is over 40% black in population, one of six 
city councilmen is black. 

Senate District No. 2 ( Northampton, Hertford, Gates, Bertie, 
Chowan, and parts of Washington, Martin, Halifax and 

Edgecombe Counties). 

No black person has ever been elected to the State Senate 
from any of the area covered by the district. In the last four 
years, black candidates have won three elections for the State 
House from areas within the borders of this district, one in 1980 
in a majority-white multi-member district, two in 1982 in dif­
ferent majority-black districts. In Gates County, where 49% 
of the registered voters are black, a black citizen has been 
elected and presently serves as Clerk of Court. In Halifax 
County, black citizens have run successfully for the Board of 
County Commissioners and for the City Council of Roanoke 
Rapids. 



37a 

Looking only to these basic historical facts respecting black 
citizens' election to public office, we draw the following in­
ferences. Thirty-five years after the first successful candida­
cies for public office by black citizens in this century, it has now 
become possible for black citizens to be elected to office at all 
levels of state government in North Carolina. The chances of a 
black candidate's being elected are better where the candidacy 
is in a majority-black constituency, where the candidacy is in a 
single-member rather than a multi-member or at-large dis­
trict, where it is for local rather than statewide office, and 
where the black candidate is a member of the political party 
currently in the ascendancy with voters. Relative to white 
candidates running for the same office at whatever level, black 
candidates remain at a disadvantage in terms of relative proba­
bility of success. The overall results achieved to date at all 
levels of elective office are minimal in relation to the percen­
tage of blacks in the total population. There are intimations 
from recent history, particularly from the 1982 elections, that a 
more substantial breakthrough of success could be imminent­
but there were enough obviously aberrational aspects present 
in the most recent elections to make that a matter of sheer 
specul!ltion. 27 In any event, the success that has been achieved 
by black candidates to date is, standing alone, too minimal in 
total numbers and too recent in relation to the long history of 
complete denial of any elective opportunities to compel or even 

27 Both parties offered evidence-anecdotal, informed "lay opinion," and 
documentary-to establish on the one hand that recent black successes 
indicated an established breakthrough from any preexisting racial vote 
dilution and on the other, that those successes are too "haphazard" and 
aberrational in terms of specific candidacies, issues, and political trends and, 
in any event, still too minimal in numbers, to support any such ultimate 
inference. Heavily emphasized with respect to successful black candidacies 
in 1982 was the fact that in some elections the pendency of this very litigation 
worked a one-time advantage for black candidates in the form of unusual 
organized political support by white leaders concerned to forestall 
single-member districting, and that this cannot be expected to recur. Our 
finding, as stated in text, reflects our weighing of these conflicting 
inferences. 



38a 

arguably to support an ultimate finding that a black candidate's 
race is no longer a significant adverse factor in the political 
processes of the state-either generally or specifically in the 
areas of the challenged districts. 

Racial Polarization in Voting 

Statistical evidence presented by duly qualified expert wit­
nesses for plaintiffs, supplemented to some degree by direct 
testimony oflay witnesses, establishes, and we find, that with­
in all the challenged districts-racially polarized voting exists in 
a persistent and severe degree. 

Multi-Member Districts 

To analyze the existence and extent of any racially polarized 
voting in the challenged multi-member districts, Dr. Bernard 
Grofman, a duly qualified expert witness for plaintiffs, had 
collected and studied data from 53 sets of recent election re­
turns involving black candidacies in all of the challenged multi­
member districts. 28 Based upon two complementary methods 
of analysis of the collected data, 29 Grofman gave as his opinion, 
and we find, that in each of the elections analyzed racial 
polarization did exist and that the degree revealed in every 

28 Included were all the elections for the General Assembly in which there 
were black candidates in Mecklenburg, Durham, and Forsyth County; 
elections for the State House of Representatives in Wilson, Edgecombe, and 
Nash Counties; and elections for the State Senate in Cabarrus County for the 
election years 1978, 1980, and 1982; county-wide local elections in each of 
Wilson , Edgecombe and Nash Counties in which there were black 
candidates. The 53 elections included both primary and general elections and 
represented a total of 32 different election contests. 

29 The two methods employed, both standard in the literature for the 
analysis of racially polarized voting, were an "extreme case" analysis and an 
"ecological regression" analysis. The extreme case analysis focuses on voting 
in racially segregated precincts; the regression analysis uses both racially 
segregated and racially mixed precincts and provides any corrective method 
to reflect the fact that voters in the two types may behave differently. In Dr. 

(footnote continued on next page) . 



39a 

election analyzed was statistically significant, in the sense that 
the probability of its occurring by chance was less than one in 
100,000;30 and that in all but two of the elections the degree 
revealed was so marked as to be substantively significant, in 
the sense that the results of the individual election would have 

Grofman's analysis the results under both methods conformed closely in most 
cases. The purpose of both methods is simply to determine the extent to 
which blacks and whites vote differently from each other in relation to the 
race of candidates. 

Defendants' duly qualified expert witness , Dr. Thomas Hofeller, had 
studied Dr. Grofman's data and the mathematics of his analysis of that data, 
and heard his live testimony. Aside from two mathematical or typographical 
errors, Dr. Hofeller did not question the accuracy of the data, its adequacy as 
a reliable sample for the purpose used, not that the methods of analysis used 
were standard in the literature. He questioned the reliability of an extreme 
case analysis standing alone, but, as indicated, Dr. Grofman's did not stand 
alone. Dr. Hofeller also questioned Dr. Grofman's failure to make an exact 
count of voter turn-out by race rather than using estimated figures. The 
literature makes no such demand of precision in obtaining this figure , and Dr. 
Grofman's method of estimating is accepted. Dr. Hofeller made no specific 
suggestion of error in the figures used. · 

We have accepted the accuracy and reliability of the data collected and the 
methods of analysis used by Dr. Grofman for the purposes offered. The 
general reliability of Dr. Grofman's analysis was further confirmed by the 
testimony of Dr. Theodore Arrington, a duly qualified expert witness for the 
Pugh intervenor-plaintiffs, see note 4, supra. Proceeding by a somewhat 
different methodology and using different data, Dr. Arrington came to the 
same general conclusion respecting the extent of racial polarization in the 
narrower area of his study. 

30 These conclusions were reached by determining the correlation between 
the voters of one race and the number of voters who voted for a candidate of 
specified race. In experience, correlations above an absolute value of .5 are 
relatively rare and correlations above .9 extremely rare. All correlations 
found by Dr. Grofman in the elections studied had absolute values between. 7 
and .98, with most above .9. This reflected statistical significance at the 
.00001 level - probability of chance as explanation for the coincidence of 
voter's and candidate's race less than one in 100,000. Cf. Major v. Treen , 
supra, slip op. 30-32 n.17 (comparable analysis of racial vote polarization by 
correlation coefficients). 



40a 

been different depending upon whether it had been held among 
only the white voters or only the black voters in the election. 31 

Additional facts revealed by this data support the ultimate 
finding that severe (substantively significant) racial polariza­
tion existed in the multi-member district elections considered 
as a whole. 32 In none of the elections, primary or general, did a 
black candidate receive a majority of white votes cast. On the 
average, 81.7% of white voters did not vote for any black 
candidate in the primary elections. In the general elections, 
white voters almost always ranked black candidates either last 
or next to last in the multi-candidate field except in heavily 
Democratic areas; in these latter, white voters consistently 
ranked black candidates last among Democrats if not last or 
next to last among all candidates. In fact, approximately two­
thirds of white voters did not vote for black candidates in 
general elections even after the candidate had won the Demo­
cratic primary and the only choice was to vote for a Republican 
or no one. Black incumbency alleviated the general level of 
polarization revealed, but it did not eliminate it. Some black 
incumbents were reelected, but none received a majority of 
white votes even when the election was essentially uncon­
tested. Republican voters were more disposed to vote for 

31 The two exceptions involved 1982 State House elections in Durham and 
Wake Counties, respectively, in which black candidates were elected to seats 
in majority white multi-member districts. Both were incumbents, and in 
Durham County there were only two white candidates in the race for three 
seats so that the black candidate had to win. Though each black candidate 
won, neither received a majority of the white vote cast. These two excep­
tions did not alter Dr. Grofman's conclusion that, in his terms, racial polariza­
tion in the elections analyzed as a whole was substantially significant. Nor do 
they alter our finding to the same effect. 

32 Defendants' expert witness questioned the accuracy of any opinion as to 
the "substantive" significance of statistically significant racial polarization in 
voting that did not factor in all of the circumstances that might influence 
particular votes in a particular election. This flies in the face of the general 
use, in litigation and in the general social science literature, of correlation 
analysis as the standard method for determining whether vote dilution in the 
legal (substantive) sense exists , a use conceded by defendant's expert. 



41a 

white Democrats than to vote for black Democrats. The racial 
polarization revealed, of course, runs both ways, but it was 
much more disadvantageous to black voters than to white. 
Aside from the basic population and registered voter majority 
advantages had by white voters in any racially polarized set­
ting, fewer white voters voted for black candidates than did 
black voters for white candidates. In these elections, a signifi­
cant segment of the white voters would not vote for any black 
candidate, but few black voters would not vote for any white 
candidate. One revealed consequence of this disadvantage is 
that to have a chance of success in electing candidates of their 
choice in these districts, black voters must rely extensively on 
single-shot voting, thereby forfeiting by practical necessity 
their right to vote for a full slate of candidates. 

The racial polarization revealed in the multi-member elec­
tions considered as a whole exists in each of the challenged 
districts considered separately, as indicated by the following 
specific findings related to elections within each district. 

House District No. 36 And Senate District No. 22 
(Mecklenburg And Cabarrus Counties). 

In elections in House District No. 36 (Mecklenburg County) 
between 1980 and 1982, the following percentages of black and 
white voters voted for the black candidates indicated: 

1980 (Maxwell) 
1982 (Berry) 
1982 (Richardson) 

Primary 
White Black 

22 71 
50 79 
39 71 

General 
White Black 

28 92 
42 92 
29 88 

In elections in Senate District No. 22 (Mecklenburg and 
Cabarrus Com1ties) between 1978 and 1982, the following per-



42a 

centages of white and black voters voted for the black candi­
dates indicated: 

1978 (Alexander) 
1980 (Alexander) 
1982 (Polk) 

Primary 
White Black 

47 87 
23 78 
32 83 

General 
White Black 

41 94 
n/a n/a 
33 94 

The fact that candidate Berry received votes from one half of 
the white voters in the primary does not alter the conclusion 
that there is substantial racially polarized voting in Mecklen­
burg County in primaries. There were only seven white candi­
dates for eight positions in the primay and one black candidate 
had to be elected. Berry, the incumbent chairman of the Board 
of Education, ranked first among black voters but seventh 
among whites. 

The only other black candidate who approached receiving as 
many as half of the white votes was Fred Alexander, running in 
the 1978 Senate primary as an incumbent. Alexander ranked 
last among white yoters in the primary and would have been 
defeated if the elction had been held only among the white 
voters. 

Approximately 60% of the white voters voted for neither 
Berry nor Alexander in the general election. 

House District No. 39 (Forsyth County). 

In House and Senate elections in Forsyth County from 1978-
1982 the following percentages of white and black voters voted 
for the black candidates indicated: 

Primary General 
White Black White Black 

1978 House-
Kennedy, H. 28 76 32 93 
Norman 8 29 n/a n/a 
Ross 17 53 n/a n/a 
Sumter (Repub.) n/a n/a 33 25 



43a 

Primary General 
White Black White Black 

1980 House-
Kennedy, A. 40 86 32 96 
Norman 18 36 n/a n/a 

1980 Senate -
Small 12 61 n/a n/a 

1982 House-
Hauser 25 80 42 87 
Kennedy, A. 36 87 46 94 

As revealed by this data, no black candidate, whether suc­
cessful or not, has received more than 40% of the white votes 
cast in a primary, and no black candidate has received more 
than 46% of the white votes cast in a general election during the 
last four elections. 

Though black candidates Kennedy and Hauser won the 
House election in 1982, this does not alter the conclusion that 
substantial racial polarization of voting continued through that 
election. ·White voters ranked Kennedy and Hauser seventh 
and eighth, respectively, out of eight candiates in the general 
election. In contrast black voters ranked them first and second 
respectively. 

House District No. 23 (Durham County). 

In House and Senate Elections from 1978 through 1982, the 
following percentages of white and black voters voted for the 
black candidates indicated: 

Primary General 
White Black White Black 

1978 Senate -
Barns (Repub.) n/a n/a 17 5 

1978 House-
Clement 10 89 n/a n/a 
Spaulding 16 92 37 89 



44a 

Primary General 
White Black White Black 

1980 House-
Spaulding n/a n/a 49 90 

1982 House-
Clement 26 32 n/a n/a 
Spaulding 37 90 43 89 

Black candidate Spaulding ran uncontested in the general 
election in 1978 and in the primary and general election in 1980. 
In the 1982 election there was no Republican opposition and 
the general election was, for all practical purposes, unopposed. 
A majority of white voters failed to vote for the black candidate 
in the general election in each of these years even when they 
had no other choice. Furthermore, in the 1982 primary, there 
were only two white candidates for three seats so that one 
black necessarily had to win. Even in this situation, 63% of 
white voters did not vote for the black incumbent, the clear 
choice of the black voters. At least 37% of white voters voted 
for no black candidate even when one was certain to be elected. 

House District No. 21 (Wake County). 

In elections for the North Carolina House of Representa­
tives from 1978 through 1982 the following percentages of 
white and black voters voted for the black candidate indicated: 

1978 (Blue) 
1980 (Blue) 
1982 (Blue) 

Primary 
White Black · 

21 76 
31 81 
39 82 

General 
White Black 

n/a n/a 
44 90 
45 91 

The fact that black candidate Blue won election in the last 
two of these candidacies does not alter the conclusion that 
substantial racial polarization in voting persists in this district. 
In Wake County winning the Democratic primary is historical­
ly tantamount to election. Nevertheless, in these elections 



45a 

from 60% to 80% of white voters did not vote for the black 
candidate in the primary compared to 76% and 80% of black 
voters who did. 

Wake County is overwhelmingly Democratic in registration 
and normally votes along party lines. Nonetheless, 55% of 
white voters did not vote for the black Democrat in the general 
electioin. 

House District No. 8 (Wilson, Nash, Edgecombe Counties). 

In county-wide or district-wide elections from 1976 through 
1982 in House District No. 8 and Wilson, Edgecombe and Nash 
Counties, the following percentages of white and black voters 
voted for the black candidates indicated: 

House District No. 8 
1982 House-Carter 

Wilson County 
1982 Congress-

1st Primary-Michaux 
2nd Primary-Michaux 

1976 County Commission­
Jones 

Edgecombe County 
1982 Congress-

1st Primary-Michaux 
2nd Primary-Michaux 

1982 County Commission­
Green 
McClain 
Thorne 
Walker 

Primary General 
White Black White Black 

4 

6 
7 

32 

2 
3 

0 
0 
4 
2 

66 

96 
98 

77 

84 
97 

14 
27 
75 
82 

38 
36 

91 
94 



Nash County 
1982 Congress-

1st Primary 
2nd Primary 

1982 County Commission­
Sumner 

46a 

Primary General 
White Black White Black 

6 
6 

9 

73 
81 

82 

With one exception, over this period more than 90% of the 
white voters have failed to vote for the black candidate in every 
primary in each of these three counties. The one time, in 1982, 
that black Democratic candidates have run in a general elec­
tion, they failed to receive over 60% of the white vote even 
though Edgecombe County is overwhelmingly (88.5%) Demo­
cratic. 

This data reveals racial polarization of voting in House Dis­
trict No. 8 so extreme that, all other factors aside, no black has 
any chance of winning election in the district as it is presently 
constituted. This conclusion, as expressed in evidence by plain­
tiffs' expert witness, was not seriously challenged by defend­
ants. 

Single-Member District 

Senate District No. 2. 

Essentially unchallenged and unrebutted opinion evidence 
given by plaintiffs' expert witness, Dr. Grofman, and testimo­
nial evidence of experienced local political observers and black 
community leaders establishes that severe and persistent ra­
cial polarization in voting exists in the area covered by the 
challenged single-member Senate District No. 2. 

Based on these evidentiary findings with respect to racial 
polarization in voting, we find that in each of the challenged 
districts racial polarization in voting presently exists to a sub­
stantial or severe degree, and that in each district it presently 
operates to minimize the voting strength of black voters. 



47a 

Other Factors Bearing Upon The Claim 
Of Racial Vote Dilution 

Increased participation by black citizens in the political 
process . 

The court finds that in recent years there has been a measur­
able increase in the ability and willingness of black citizens to 
participate in the state's political processes and in its govern­
ment at state and local levels. The present state administration 
has appointed a significant number of black citizens to judicial 
and executive positions in state government, and evinces a 
good faith determination further to open the political processes 
to black citizens by that means. In some areas of the state, 
including some of those directly involved in this litigation, 
there is increased willingness on the part of influential white 
politicians openly to draw black citizens into political coalitions 
and openly to support their candidacies. Indeed, among the 
witnesses for the state were respected and influential political 
figures who themselves fit that description. 

The court has considered what this implies for the plaintiffs' 
claim of present racial vote dilution-of a present lack of equal 
opportunity by black citizens relative to white citizens to par­
ticipate in the political process and to elect candidates of their 
choice. Our conclusion is that though this wholesome develop­
ment is undoubtedly underway and will presumably continue, 
it has not proceeded to the point of overcoming still entrenched 
racial vote polarization, and indeed has apparently done little 
to diminish the level of that single most powerful factor in 
causing racial vote dilution. The participatory level of black 
citizens is still minimal in relation to the overall black popula­
tion, and, quite understandably, is largely confined to the 
relatively few forerunners who have achieved professional 
status or otherwise emerged from the generally depressed 
socio-economic status which, as we have found on the record 
produced in this case, remains the present lot of the great bulk 
of black citizens. 



48a 

Divisions Within The Black Community. 

Not all . black citizens in North Carolina, notwithstanding 
that the class technically certified in this action includes all who 
are registered to vote, share the same views about the present 
reality of racial vote dilution in the challenged districts (or 
presumably elsewhere), nor about the appropriate solution to 
any dilution that may exist. 

Several black citizens testified in this action, as witnesses for 
the state, to this effect, identifying their own views as opposed 
to those advanced by plaintiffs' witnesses. In terms of their 
experience, achievement and general credibility as witnesses, 
the views of these defendant-witnesses were clearly as deserv­
ing of acceptance by the court as were those of the black 
citizens who, in larger numbers, testified as witnesses for the 
plaintiffs. 

Two facts appeared, however, to the court. The first is that 
the views expressed by defendants' witnesses went almost 
exclusively to the desirability of the remedy sought by plain­
tiffs, and not to the present existence of a condition of vote 
dilution. The other fact is that the defendants' witnesses' views 
must be accounted, on the. record adduced in this case, a 
distinct minority viewpoint within the plaintiff class as certi­
fied. The division between the two elements is essentially one 
of proper political ends and means to break free of racial vote 
dilution as a present condition, and not of the present existence 

_ of that condition. Only if a dissident element were so large as to 
draw in question the very existence of an identifiable black 
community whose "ability to participate" and "freedom to elect 
candidates of its choice" could rationally be assessed, could the 
existence of a dissident view have relevance to the establish­
ment of a racial vote dilution claim. That clearly is not the 
circumstance here, on the record made in this action. As earlier 
indicated, the further political question of the proper means to 
eradicate such racial vote dilution as might be shown presently 
to exist has been decided by Congress and does not properly 
figure in our judicial inquiry. See Part II, supra. 



49a 

Fairness Of The State Legislative Policy Underlying The 
Challenged Redistricting 

Under amended§ 2 it presumably remains relevant to con­
sider whether race-neutral and compelling state policies might 
justify a redistricting plan that concededly, or at least arguab­
ly, "results" prima facie in racial vote dilution. The Senate 
Report, discussing the continued relevance of the "tenuous 
state policy" inquiry as one of the incorporated Zimmer factors 
that evolved in White v. Regester dilution jurisprudence, in­
dicates as much, though "tenuousness" as a gauge of intent is 
obviously no longer relevant under § 2's "result-only" test. 

If the procedure markedly departs from past practices 
or from practices elsewhere in the jurisdiction, that bears 
on the fairness of its impact. But even a consistently · 
applied practice premised on a racially neutral policy 
would not negate a plaintiffs showing through other fac­
tors that the challenged practice denies mmorities fair 
access to the process. 

S. Rep. No. 97-417, supra note 10, at 29 & n.117. See also 
Major v. Treen, supra, slip op. 67-74 (analyzing state 
redistricting policy in terms of fairness). 

The parties in this litigation have addressed the point under 
the "tenuous state policy" rubric, and we will assume the 
inquiry's continued relevance under a "results"-only test. On 
this basis, we are persuaded that no state policy, either as 
demonstrably employed by the legislature in its deliberations, 
or as now asserted by the state in litigation, could "negate a 
showing" here that actual vote dilution results from the chal­
lenged district plan. 

During the legislative deliberations on the redistricting 
plan, the legislature was well aware of the possibility that its 
plan could result under then applicable federal law in imper­
missible dilution of black citizens' voting strength if concentra­
tions of black voters were intentionally "submerged" in multi­
member districts or "fractured" into separate districts. That 
fact was brought to its attention by special counsel, by black 
citizens' groups concerned with the problem, and by various 



50 a 

legislators who proposed plans specifically designed to avoid 
any possibility of impermissibly diluting black citizens' votes in 
these ways. The specific dilution problems presented by the 
black voter concentrations in the challenged districts in this 
litigation were known to and discussed in legislative delibera­
tions. 

The basic policy justification advanced by the state in this 
litigation for the legislature's declination to create single­
member districts to avoid submerging concentrations of black 
voters in the challenged multi-member districts was the main­
tenance of an historical, functionally sound tradition of using 
whole counties as the irreversible "building blocks" of legisla­
tive districting. Although the state adduced fairly persuasive 
evidence that the "whole-county" policy was well-established 
historically, had legitimate functional purposes, and was in its 
origins completely without racial implications, that all became 
largely irrelevant as matters developed in this particular 
legislative redistricting plan. At the time of its final enact­
ment, the state policy-though compelled-was that counties 
might be split. When the Attorney General declined to give 
preclearance to the state constitutional prohibition of county 
divisions in redistricting, the state acquiesced and, indeed, 
divided counties thereafter both in non-covered as well as 
covered counties in the final redistricting plan. See note 3, 
supra. To the extent the policy thereafter was to split counties 
only when necessary to meet ·population deviation require­
ments or to obtain§ 5 preclearance of particular districts- and 
this is what the record demonstrates-such a policy obviously 
could not be drawn upon to justify, under a fairness test, 
districting which results in racial vote dilution. 

The same findings apply, though with added force, to Senate 
District No. 2. There, of course, in the final plan counties were 
split; indeed four were split in the face of a proposed plan which 
would have yielded an effective black-majority single-member 
district which only involved splitting two counties. Other poli­
cy considerations that were plainly shown to have influenced 
the legislature in its final drawing of Senate District No. 2lines 



51 a 

were the protection of incumbents and, in the words of one 
legislator-witness in this action, swallowing the "smallest of 
three pills" offered by the Justice Department in preclearance 
negotiations respecting the lowest permissible size of the black 
population concentration in the district. Obviously, neither of 
these policies could serve to outweigh a racial dilution result. 

The final policy consideration suggested by the state is the 
avoidance of race-conscious gerrymandering. While there may 
be some final constitutional constraint here, cf. Karcher v. 
Daggett,_ U.S. _ ,_, 51 U.S.L.W. 4853, 4860 (U.S. 
June 22, 1983) (Stevens, J., concurring), we find that it is not 
approached here by the available means of avoiding sub­
mergence or fragmentation of any of the black voter concentra­
tions at issue. The most serious problem is that posed by the 
configuration of the black voter concentration in House Dis­
trict No. 8, conprised of Wilson, Nash and Edgecombe Coun­
ties. The configuration of the single-member district specifical­
ly suggested by the plaintiffs as a viable one is obviously not a 
model of aesthetic tidiness. But given the evidence, not chal­
lenged by defendants, that in the present multi-member dis­
trict the black population, 39.5% of the total, simply cannot 
hope ever to elect a candidate of its choice, aesthetics, as 
opposed to compactness and commonality of interests, cannot 
be accorded primacy. See Carstens v. Lamm, supra; Skolnick 
v. State Electoral Board, 336 F. Supp. 839, 843 (N.D. Ill. 1971) 
(three-judge court) (even compactness not a fundamental 
requirement). 

Ultimate Findings Of Fact 

1. Considered in conjunction with the totality of relevant 
circumstances found by the court-the lingering effects of 
seventy years of official discrimination against black citizens in 
matters touching registration and voting, substantial to severe 
racial polarization in voting, the effects of thirty years of per­
sistent racial appeals in political campaigns, a relatively de­
pressed socio-economic status resulting in significant degree 
from a century of de jure and de facto segregation, and the 



52 a 

continuing effect of a majority vote requirement-the creation 
of each of the multi-member districts challenged in this action 
results in the black registered voters of that district being 
submerged as a voting minority in the district and thereby 
having less opportunity than do other members of the electo­
rate to participate in the political process and to elect repre­
sentatives of their choice. 

2. Considered in conjunction with the same circumstances, 
the creation of single-member Senate District No. 2 results in 
the black registered voters in an area covered by Senate Dis­
tricts Nos. 2 and 6 having their voting strength diluted by 
fracturing their concentration into two districts in each of 
which they are a voting minority and in consequence have less 
opportunity than do other members of the electorate to partici­
pate in the political process and to elect representatives of 
their choice. 33 

33 The state challenges the basic premise of this finding with the familiar 
argument that the relative merits oflegislative division of a minority popula­
tion that is not large enough to form voting majorities in two single-member 
districts into an effective voting majority in one single-member district and 
an ineffective minority in another or, on the other hand, dividing it into two 
substantially influential minorities in two districts is so problematical that 
neither the one nor the other division can properly be adjudged "dilutive" by 
a court. See, e.g., Seamon v. Upham, 536 F . Supp. 931, 949 (E.D. Tex.) 
(three-judge court) rev'd on other grounds , 456 U.S. 37 (1982); compare 
Jordan v. Winter, 541 F. Supp. 1135, 1143 (N.D. Miss. 1982) (three-judge 
court), vacated and remanded for further consideration in light of amended 
§ 2, 103 S. Ct. 2077 (1983) (legislative preference unchallengeable) with 
Kirksey v. Board of Supervisors, 554 F.2d at 150 (dilution possible even if 
one of districts has a bare black population majority). The specific argument 
here is that any increase in the present minority population of 55.1% in 
Senate District No. 2 will be at the expense of the present 49.3% black 
population in Senate District No. 6, the obvious source of District 2 increase. 

We are not impressed with the argument. While the dilemma is a real one, 
we think it is one that Congress has, in effect, committed to the judgment of 
the black community to whom it has given the private right of action under 
amended § 2. The right created is, by definition, that of a "class" and the 
procedural means of vindicating it by a class action has also been provided by 

(footnote continued on next page) 



53 a 

IV 

CONCLUSIONS OF LAW 

1. The court has jurisdiction of the parties and of the sub­
ject matter of the action under 28 U.S.C. §§ 1331, 1343, and 42 
U.S.C. § 1973c. 

2. The court is properly convened as a three-judge court 
under 28 U.S.C. § 2284(a). 

3. The action has been properly certified as a class action on 
behalf of all black residents of North Carolina who are reg­
istered to vote. No challenge is made to the propriety of the 
class action under any of the criteria of the governing class 
action rule, Rule 23, Fed. R. Civ. P. 

4. Of the challenged districts, only House District No. 8 
(Wilson, Edgecombe and Nash) and Senate District No. 2 
include counties that are c,overed under § 4(a) of the Voting 

(footnote continued from previous page) 
Congress in Fed.R.Civ.P. 23. When, as here, such a class action is brought 
by a class which includes such a fragmented concentration of black voters, a 
group judgment about the group's best means of access to the political 
process must be assumed reflected in the specific claim made by the class. 
The legitimacy of that group judgment, from the standpoint of members of 
the class identified, can be put to test by standard procedures: by challenges 
to the adequacy of representation or the typicality of claims by any members 
of the identified class who question the wisdom or validity of the class claim 
under Rule 23(a)(3) & (4), Fed.R.Civ.P. , or even by attempted intervention 
under Rule 24, Fed.R.Civ.P. When, as here, no such challenges are made, a 
dilution claim made by the class is properly assessed in the terms made, and 
on the understanding that any judgment entered on its basis will be binding 
on all members of the class who may not later second-guess it under ordinary 
principles of claim preclusion, see Restatement (Second) Judgments § 24 
comments b, c; § 25 comments f, m; § 41(1)(e), (2) comment e, or, possibly, 
judicial estoppel, see Allenv. Zurich Ins. Co., 667 F.2d 1162 (4th Cir. 1982). 

If this were not the approach taken, a foolproof means would be provided 
for irremediable fracturing of any such minority voter concentration. That 
cannot have been intended by Congress. A different situation of course 
would be presented if the class of black voters bringing such a dilution-by­
fracturing claim included only the voters in one of the districts into which the 
fracturing had occurred. That is not this case. 



54 a 

Rights Act and for which preclearance is required under § 5 of 
that Act, 42 U.S.C. § 1973c. 

The Attorney General's indication on April27, 1982, that, so 
far as it affected covered counties, he would interpose no 
objection under § 5 to the legislative enactment of the 
redistricting plan which, inter alia, created House District No. 
8 and Senate District No. 2 does not have the effect of preclud­
ing this claim by plaintiffs brought under amended§ 2 to chal­
lenge the redistricting plan in respect of these two districts. 42 
U.S.C. § 1973c; Major v. Treen, supra, slip op. at 200 n.1; 
United States v. East Baton Rouge Parish School Board, 594 
F.2d 56, 59 n.9 (5th Cir. 1979); see also Morris v. Gressette, 432 
U.S. 491, 506-07 (1977). Because the standards by which the 
Attorney General assesses voting changes under § 5 are differ­
ent from those by which judicial claims under § 2 are to be 
assessed by the judiciary, seeS. Rep. No. 97-417, supra note 
10, at 68, 138-39, and because th'e former are applied in a 
non-adversarial administrative proceeding, the Attorney 
General's preclearance determination has no issue preclusive 
(collateral estoppel) effect in this action. See Restatement 
(Second) Judgments §§ 27 comment C; 83(2) & (3) (1980). 

5. The meaning and intended application of amended § 2 of 
the Voting Rights Act in relation to the claims at issue in this 
action are as stated in Part II of this Memorandum Opinion. 

6. On the basis of this court's ultimate findings of fact, the 
plaintiffs have established that the creation by the General 
Assembly of North Carolina of multi-member House Districts 
Nos. 8, 21, 23,36 and 39, multi-member Senate District No. 22, 
and single-member Senate District No. 2 will, as applied, 
result in an abridgement of their voting rights, as members of a 
class protected by subsection (a) of amended § 2 of the Voting 
Rights Act, in violation of that section. 

7. The plaintiffs are entitled to appropriate relief from the 
violation. 



55 a 

v 
REMEDY 

Having determined that the state's redistricting plans, in 
the respects challenged, are not in compliance with the man­
date of amended § 2 of the Voting Rights Act, the court will 
enter an order declaring the redistricting plan violative of§ 2 
in those respects, and enjoining the-defendants from conduct­
ing elections pursuant to the plan in its present form. 

In deference to the primary jurisdiction of state legislatures 
over legislative reapportionment, White v. Weiser, 412 U.S. 
783, 795 (1973), we will defer further action to allow the Gener­
al Assembly of North Carolina an opportunity to exercise that 
jurisdiction in an effort to comply with § 2 in the respects 
required. This is especially appropriate where, as here, the 
General Assembly adopted the plan found violative of § 2 be­
fore the enactment of the amended version of that statute 
which now applies, and where there has accordingly been no 
previous legislative opportunity to assess the amended stat­
ute's substantial new requirements for affirmatively avoiding 
racial vote dilution rather than merely avoiding its intentional 
imposition. 

Having determined that the present plan violates a secured 
voting right, our obligation remains, however, to provide 
affirmative judicial relief if needed to insure compliance by the 
state with its duty to construct districts that do not dilute the 
voting strength of the plaintiff class in the ways here found, or 
in other ways. See In re: Illinois Congressional Districts Re­
apportionment Cases, No. 81 C 1395, slip op. (N.D. Ill. 1981), 
affd mem. sub nom., Ryan v. Otto, 454 U.S. 1130 (1982); 
Rybicki v. State Board; Jf Elections, No. 81 C 6030 (N.D. Ill. 
Jan. 12, 1982); Kirksey v. Board of Supervisors, 554 F.2d 139 
(5th Cir.), cert. denied, 434 U.S. 968 (1977). 

Recognizing the difficulties posed for the state by the immi­
nence of 1984 primary elections, the court will convene at any 
time, upon request of the state, to consider and promptly to 
rule upon any redistricting plan that has been enacted by the 



56 a 

State in an effort to comply with the mandates of § 2 and with 
this decision. Failing legislative action having that effect with­
in a reasonable time under the circumstances, not later than 
March 16, 1984, the court will discharge its obligation to de­
velop and implement an appropriate remedial plan. 

An appropriate order will issue. 



57 a 

APPENDIX B 

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

RALEIGH DIVISION 

No. 81-803-CIV-5 

RUFUS EDMISTEN, eta[., 
Plaintiffs, 

V. 
RALPH GINGLES, et al . 

Defendants. 

NOTICE OF APPEAL TO THE SUPREME COURT OF THE 
UNITED STATES 

Notice is hereby given that Rufus L. Edmisten, et al., de­
fendants in the above-captioned action, hereby appeal to the 
Supreme Court of the United States from the final order and 
injunction entered in this action on January 24, 1984. 

This appeal is taken pursuant to 28 USC § 1253. 

RUFUS 1. EDMISTEN, ATTORNEY GENERAL 

JAMES WALLACE, JR. 

Deputy Attorney General for 
Legal Affairs 

Attorney General's Office 
N.C. Department of Justice 
Post Office Box 629 
Raleigh, North Carolina 27602 
Telephone: (919) 733-3377 

Taire Smiley 
Norma Harrell 
Assistant Attorney's General 



58 a 

APPENDIX C 

SUPREME COURT OF THE UNITED STATES 

No. A-774 

RUFUS EDMISTEN, et al., 
Appellants, 

v. 
RALPH GINGLES, et al. 

ORDER 

UPON CONSIDERATION of the application of counsel for 
the appellants, 

IT IS ORDERED that the time for docketing an appeal in 
the above-entitled cause be, and the same is hereby, extended 
to and including June 2, 1984. 

Dated this 28th 
day of March, 1984. 

/s/ Warren E. Burger 
Chief Justice of the United States 
WARREN E. BURGER 



59 a 

APPENDIX D 

CONSTITUTIONAL PROVISIONS AND STATUTES IN­
VOLVED 

U.S. Constitution, Fifteenth Amendment: 

Section 1. The right of citizens of the United States to 
vote shall not be denied or abridged by the United States 
or by any State on account of race, color, or previous 
condition of servitude. 

Section 2. The Congress shall have power to enforce the 
article by appropriate legislation. 

42 u.s.c. 1973: 

(a) No voting qualification or prerequisite to voting or 
standard, practice, or procedure shall be imposed or ap­
plied by any State or political subdivision m a manner 
which results in a denial or abridgment of the right of any 
citizen of the United States to vote on account of race or 
color, or in contravention of the guarantees set forth in 
section 4(f)(2), as provided in subsection (b). 

(b) A violation of subsection (a) is established if, based 
on the totality of circumstances, it is shown that the politi­
cal processes leading to nomination or election in the State 
or political subdivisiOn are not equally open to participa­
tion by members of a class of citizens protected by subsec­
tion (a) in that its members have less opportunity than 
other members of the electorate to participate in the polit­
ical process and to elect representatives of their choice. 
The extent to which members of a protected class have 
been elected to office in the State or political subdivision is 
one circumstance which may be considered: Provided, 
That nothing in this section establishes a right to have 
members of a protected class elected in numbers equal to 
their proportion in the population. 

42 U.S.C. 1973C: • 
Whenever a State or political subdivision with respect 

to which the prohibition set forth in section 1973b(a) of this 
title based upon determinations made under the first sent­
ence of section 1973b(b) of this title are in effect shall enact 
or seek to administer any voting qualification or prere-



60a 

quisite to voting, or standard, practice, or procedure with 
respect to voting different from that in force or effect on 
November 1, 1964, or whenever a State or political sub­
division with respect to which the prohibitions set forth in 
section 1973b(a) of this title based upon determinations 
made under the second sentence of section 1973b(b) of this 
title are in effect shall enact or seek to administer any 
voting qualification or prerequisite to voting, or standard, 
practice, or procedure with respect to voting different 
from that in force or effect on November 1, 1968, or 
whenever a State or political subdivision with respect to 
which the prohibition set forth in section 1973b(a) of this 
title based upon determinations made under the third 
sentence of section 1973b(b) of this title are in effect shall 
enact or seek to administer any voting qualification or 
prerequisite to voting, or standard, practice, or procedure 
with respect to voting different from in force or effect on 
November 1, 1972, such State or subdivision may institute 
an action in the United States District Court for the Dis­
trict of Columbia for a declaratory judgment that such 
qualifications, prerequisite, standard, practice, or proce­
dure does not have the purpose and will not have the effect 
of denying or abridging the right to vote on account of race 
or color, or in contravention of the guarantees set forth in 
section 1973b(f)(2) of this title, and unless and until the 
court enters such judgment no person shall be denied the 
right to vote for failure to comply with such qualificaton, 
preprequisite, standard, practice, or procedure: Pro­
vided, That such qualification, prerequisite, standard, 
practice, or rrocedure may be enforced without such 
proceeding i the qualification, prerequisite, standard, 
practice, or procedure has been submitted by the chief 
legal officer or other appropriate official of such State or 
subdivision to the Attorney General and the Attorney 
General has not interposed an objection within sixty days 
after such submission, or upon good cause shown, to facili­
tate an expedited approval within sixty days after such 
submission, the Attorney General has affirmatively in­
dicated that such objection will not be made. Neither an 
affirmative indication by the Attorney General that no 
objection will be made, nor the Attorney General's failure 
to object, nor a declaratory judgment entered under this 
section shall bar a subsequent action to enjoin enforce­
ment of such qualification, prerequisite , standard, prac-



61a 

tice, or procedure, In the event ~ the Attorney General 
affirmatively indicates that no objection will be made 
within the sixty-day period following receipt of a sub­
mission, the Attorney General may reserve the right to 
reexamine the submission if additional information comes 
to his attention during the remainder of the sixty-day 
period which would otherwise require objection in accord­
ance with this section. Any action under this section shall 
be heard and determined by a court of three judges in 
accordance with the provisions of section 2284 of Title 28 
and any appeal shall lie to the Supreme Court. 







.r 


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