Affidavit of Alex K. Brock

    No. 8&1968

IN fsp
Snprruu U,swtd thP lflnitril fitalrls

Oc,tosER Trnu, 1985

L.ncv H. TnonNBuRc, et al.,
Appellants,

v.

R.nr,ru GrNcltr^s, et al.,
Appellees.

On Appeal from the United Stst6 District Court
for the Eastern Dlstrict of North Carolina

BRIEF AMICUS CURIAE OF THE
REPUBLICAN NATIONAL COMMTTTEE

IN STIPPORT OF APPELLEES

Rocpm.Ar,unrv MooBE r
E. MAnKBnaorN
Mrcn.Er.r, A. Ilnss

310 First Street, S.E.
Washineton, D.C. 20003
(202) 863-8638

Attornaus for Amian Curi,ae
R ept blic on N otiorwl, C om,tnitt e e

' ' CounselofRecord

August 30, 1986

WtLloN - EFrr tntNtrNoCo., lNc. .7A9.0096 - waaHtxotoN. O.C. AOOOT



TABLE OF CONTENTS

TABLE OF AUTEORITIES

INTEREST OF TI{E AMICUS

SIIMMARY OF ARGIIMENT

ABGUMENT

I. The District Court Properly Refused to Guar-
antee Proportional Minority Representation ..----.

II. The District Court Properly Deferred to Legis-
lative Priorities In Considering A Remedy ----.---

UI. The District Court's Findings of Fact Are Not
Clearly Erroneous, But Are Based On A Par-
ticularly Localized Factual Record

CONCLUSION

Page

ii

1

2

3

I

L2



ll

TABLE OF AUTHORITIES
CASES

And,ersonv. Ci.ty of Bessemer City, 

- 
U.S. 

-,63 U.S.L.W.4314 (Mar. 19, 1985)
CitU of Mobi,lev. Bold,en,446 U.S. 55 (1980)
Daai,s v. Bandemer, 603 F. Supp. 1479 (S.D.Ind.

1984), prob. juris. nated, No. 84-1244 (Mar. 29,
1985) ...._..

Gingles v. Edmisten,690 F. Supp. 345 (E.D.N.C.
1984), prob. iuris. noted, sub nom. Thornburg v.
Gingles, No. 83-1968 (Apr. 29, 1985) -.,.-3,5, 6,7,8, 10

Hunter v. Eri,ckson, 393 U.S. 886 (1969)
Karcher v. Daggett,462 U.S. 725 (1983)
Pullman-Standard, v. Swi.nt,456 U.S. 273 (1982).. 1l
aruited, Jewish Organizations v. Wilson,510 F.zd

612 (2d Cir. 1974), a.fr'd sub nom. Uni,ted J ewi,sh
Organi.zations v. Carey, 430 U.S. 144 (19771. .

Uni,ted States v. Uni.ted States Gypsum Co., 333
u.s. 364 (1e48)

Uphamrt. Seamon,466 U.S. 37 (1982)
Washington v. Seattle School District No. I, 458

u.s. 457 (1e82) 4
Whi.te v. Weiser,4l2 U.S. 783 (1972) -- 8
Zimmer v. McKeithen, 486 F.Zd 1297 (5th Cir.

1973) (en banc) , aff'd on other ground.s sub nnm.
East Carroll Parish Sehool Boaril v. Marshall,
424 U.S. 636 (1976) (per curiam) - .. . . - . 4

STATUTES

The Voting Rights Act of 1965 (codified as
amended at 42 U.S.C. $ 1973 (1982) ) ......--3, 5, 6, 7, 10

OTHER

Howard and Howard, The Dil,emma of th,e Voting
Rig hts A ct-R ec o g nizing the E mer ging P oliti,cal
Eqtnlity Norm,83 Colum. L. Rev. 1615 (1983)..

Rule 62, Federal Rules of Civil Procedure
Senate Comm. on the Judiciary, Report on the

Voting Rights Act Extension, S. Rep. No. 417,
97th Cong., 22d Sess. 193 (1982), reprinted in
1982 U.S. Cong. Code & Ad. News 177 .......--.....-.

Page

9, 10
3

2,4

4
2

3

I
I

4
9, 10

5

In Tun

Suprrrrv $nwt trf thp lltnttril $Iutpr
OcronpR TsnM, 1985

No.83-1968

LACY H. THonNnuRG, et al.,

v. Appellants,

RalpH GtNct os, et a1,.,

Appell,ees.

On Appeal from the United States Distriet Court
for the Eastern District of North Carolina

BRIEF AMICUS CURIAE OF THE
REPUBLICAN NATIONAL COMMITTEE

IN SUPPORT OF APPELLEES

The Republiean National Committee submits this brief
as amiats curine in support of appellees' claim that the
judgment of the United States District Court for the
Eastern District of North Carolina, entered on January
27, 1984, together with its supplemental judgment of
April 20, 1984, should be affirmed. Pursuant to Rule
36.2, all parties to this appeal have given their written
eonsent to the filing of this brief. Copies of the letters
of eonsent have been filed with the Clerk of the Court.

INTEREST OF THE AMICUS

The Republiean National Committee (RNC) submits
this brief on its own behalf, and on behalf of Robert
Bradshaw, Charlotte, North Carolina, Chairman of the



2

North carolina Republiean Executive committee and a
member of the Republican National Committee.

The RNC has p4rticipated in a variety of erection law
and voting rights eases before this Court as either ap?{I or amicus, most reeenily in Karch,er v. Daggett,
462 U.S. 725 (lg8g) , and Dauis v. Band,emer,608 f. 3rpp.
1479 (S.D. Ind. 1984) , prob. iuris. noted,, No. g4-1244
(Mar. 29, 1985). The RNC and its membership supportfair and effective representation for ail the citirens or
North carolina in their state legisrature and believe that
the judgment of the court berow effeets such a result.

The amicus also believes that the appellants misrep_
resent both the nature of legislative representation in
North Carolina and the effeet of the judgment below.

SUMMARY OF THE ARGUMENT
The amicus Republiean National committee takes issue

with the argument of the appeilants that the judgment
of the distriet eourt either impricitly or explieitri i,n-
ggsed a requirement of proporlional represertution fo"
blaeks in the North carolina legisrature. The distriet
eourt's initial, January 27, lgg4, opinion reveals no
attempt at maximization, and the cou"i,* April ZO, lgg4,
supplemental clearly demonstrates that the court 

"Lj*t.athe notion of maximization or proportionar repreienta-
tion that appellants now attempt to-rs."ibe to tire eourt.

Rather than impose what the eourt thought, intui_
tively, to be the plan whieh di.d, maximize blaclr eleetoral
ehances-a plan the plaintiffs themselves proposed to the
court--the district court instead deferrd b the priori-
ties established by the North carolina legislature and
adopted the state's plan as a remedy.

- 
In reaehing its eonelusions in both its initiar and sup-

plemen'tal opinions, the distriet court reviewed a eomplex
faetual -seenario, and -its findings as to both subsidiary
and ultimate facts shourd be sustained unress erearry

3

erroneous. The facts in this ease are pecuriarry local in
nature, the determination of which is partieulrrtv *rit.ato the district eourt. Not onry was tie distrief eourt,sfinding as to a key fact-the p..."r.. of polarized vot_ing-not clearly erroneous, the expert testimony upon
which the eourt based its finding was not seriously con_tested. The amicus believes thai this case is Urrira nVits particular facts, and is an inappropriate vehicre foreonsidering the merits of the standaids-for review-under
Section 2 of the Voting Rights Act.

ARGUMENT

I. The District _Court 
properly Refused to GuaranteeProportional Minority nepresentation.

of particular interest to the RNC as amicus is theappellants' claim that, since minority voters huu. noright to the creation of distriets whieh worlJ vi.ra 
"1p".-sentation in proportion to their numbers, it u ai.t'"i.tcourt erred in finding a Voting Rights Aet violali;:"'

It is clear that the loting Rights Act, and in partieu-Iar, section 2 of..the Aet, i*po-r.r-no requirement thatany rninority achiev. ..p"...riation in propo"tio, io it.numbers in 
-the 

populatibn. The statute, as amended in1982, provides that "nothing in this section .ri*rii*t..a right to have members oia protected erass erected in
13y!-ers equal to.^l!:i" 1"opo":tion in tt" pofr-t"-tiin.,,
4-2 US.C. $ 19?3 (f982). Thi.'l"nguage is consistent withthis Court's approach to the qr".iio, of proportional rep_resentation in both constitutional and .trfrto"y-';;;irg
rights cases.t The district court expliciily 

"..og;irJ;raldorlgd that appro_ag! i, its opini6n. dtnstes'i:.-nail_
ten, 590 F. Supp. g4b, 955 f U.D.U.C. 19il) :

I City of Mobite v. Botilen,446 U.S. SS, OO If SSO ) ; United, JewishOrganizations v. Wilso-n,6f 0 F.zd Sf Z (za Ci. . lg74), afr,d sub nom.United, Jeutish Organizations v. C"riy) AeO U.S. 144 (tg77).



4

Nor does the faet that blacks have not been eleeted
under a challenged districting plan in numbers pro-
portional to their percentage of the population [alone
establish that vote dilution has resulted from the dis-
tricting plan.l (Citing Zimmer v. McKeithen, 485
F.zd l-297 (5th Cir. 19?3) (en banc) , afr'd on other
grounds sub nnm. East Carroll Parish School Board
v. Marshall,424 U.S. 636 (1976) (per curiam).

The amiarc Republican National Committee has histori-
cally been a proponent of strong, majoritarian govern-
ment in the United States. Ours is not, nor should it be,

a proportional system of government. The views of the
RNC in this regard were set forth in detail in another
voting rights case pending before this Court, Daais v.
Bandemer, No. 84-1244.'?

2 Instead of requiring that legislatures do the impossible by pro-

viding proportional representation for all political interests, this
Court has prudently required only that the electoral proceas be

structured in ways that permit each voter an equal opportunitA to
select his legislative representative and thereby be given an equal

chance to influence public poliey. This Court's focus must continue
to be on emphasizing procedural fairness in the political process

by requiring that redistricting laws "provide a just framework
within which the diverse political groups in our society may fairly
compete." Washington v. Seattle School Dist- No. 1, 458 U'S. 457,

470 (1982), (citing Hunter v. Erickson,393 U.S. 385, 393 (1969)
(Harlan, J., concurring) ).

The RNC explicitly rejects the notion that the creation of "safe"
minority districts is the only available remedy under Section 2 of
the Voting Rights Act, and sgrees with the appellants that such a
rule of law would be undesirable. The creation of permanent, safe

districts for any minority, raeial or political, is antithetical to our

majoritarian system of government, and institutionalizes the very
proportional government this Court has rejected' In its brief in
Daois v. Bandem.er, suqa, the RNC argued strongly that legislative
districts which are designed to be non-competitive to the exclusion

of one political party are both eonstitutionallv and philosophically

repugnant. The inherent tension between proportional representa-
tion in racial equal protection cases and what has been ealled the

"emerging political norm" has been recognized and diseussed at
length in Howard an<I Howard, The Di'lemma of the Voting Rights

5

The amicus does not dispute the appellants' contention
that Congress clearly had no intention to invalidate dis-
tricting plans where minority eandidates have had an
equal opportunity to be elected, even if they did not
necessarily win a proportional share of the seats. How-
ever, while no group has either a statutory or constitu-
tional right to proportional representation, the statute
does not prohibit orzgr consideration of the relative repre-
sentation of a protected class. In fact, the 1982 amend-
ments do permit eonsideration of "the extent to which
members of the minority group have been elected to
publie office in the jurisdietion" as part of the "totality
of circumstances" which may be probative of vote dilu-
tion. S. Rep. No. 417, 97th Cong., 2d Sess. 193 reprinted
in 1982 U.S. Code Cong. & Ad. News 177, 206-07. In
assessing the success of black candidates, the court below
concluded that:

[The] success that has been achieved by black eandi-
dates is, standing alone, too minimal in total num-
bers and too recent in relation to the long history of
complete denial of any elective opportunity to com-
pel or even arguably to support an ultimate finding
that a black candidate's race is no longer a signifi-
cant factor in the political proeesses of the state-
either generally or specifically in the areas of the
challenged districts. 509 F. Supp. at 367.

The appellants correctly point out that "Section 2 of
the Voting Rights Aet does not entitle protected minor-
ities . . . to safe electoral districts simply because a mi-
nority concentration exists sufficient to create such a
district." Appellants' Brief at 19. However, the appel-
lants then suggest that the opinion below mandates just
that sort of proportional representation.

Act-Recogni.zing the Emergi,ng Political Equality Norm,83 Colum.
L. Rev.1615 (1983). That tension, however, does not exist in this
case because the district court did not endorse but rather, explicitly
rejected a maximization plan.



6

The appellants attempt to isolate the remedial action

of the dislriet eourt from its initial judgment' This pre-

sents an incomplete picture of the district court's rea-

soned approach to the proportional representation issue.

After the district eourt enjoined eertain elections un-

der the challenged plan, the North Carolina General

Assembly responded by enacting, in the form of six new

bills, a redistricting plan ereating new boundaries for
each of the invalidated districts. On March 12, 1985,

the state submitted these plans to the district eourt for
its approval, and contemporaneously submitted the plan

to the Attorney General of the United States for pre-

elearance insofar as the changes affected districts cov-

ered by Section 5 of the Voting Rights Aet.

Three days later, on March 15, the plaintiffs objeeted

to the proposed plan and requested modifications, in par-

ticular wifh respect to the areas covered by former House

Districts 8 and 36. The district court denied the plain-

tiffs' motion for further depositions and a hearing on

the question of the remedial adequacy of the state's plan,

and resolved to deeide the question of the state's com-

pliance on the reeord as then extant. 590 F. Supp. aI 377'

Although they did not eoncede the plan's validity in
other respeets, the plaintiffs objected specifically to the

area. comprising the Mecklenburg district, contending
that the plan fractured substantial blaek population con-

centrations. These populations were insufficient to con-

stitute another voting majority, but plaintifrs argued
that they might, nonetheless, give that minority popula-

tion considerable voting power as a substantial voting
minority in at least one of the newly constructed single
member districts. Id. at' 379. This newly "paeked" dis-
trict would have eontained a black population of 44.7

pereent. Id. at 380 n.1. By contrast, none of the white
majority districts under the state's plan contained black
populations in exeess of 28.2 percent. .Id.

7

The eourt characterized the plaintiffs' proposal as re-

quiring that "a state redistricting plan adoptecl to rem-

edy juclicially found dilution by submergence (or frac-
turing) of effective vote majorities must not only remedy

the speeific violation found but also maximize ' the

voting strength of those black voters outside the reme-

dially drawn single-member districts." Id. The court
wiseiy rejected the plaintiffs' invitation to maximize mi-
nority voting strength, relying upon Section 2 jurispru-

dence and equitable eonsiderations. Id. at 382.

The eourt's factual findings led it to a conclusion that
the challenged plan violated Section 2. Having so de-

termined, the court's January 2? opinion must be re-

viewed together with its supplemental opinion. By ex-

plicitly rejecting, in its supplemental opinion, a proposal

ihat woutd, have maximized minority voting strength, the

district court demonstrated that its goal was not propor-

tional representation. The district court's opinion does

not hold that blacks-or any minority-are entitled to pro-

portional representation. Remarkably, appellants failed

lo reproduce this supplemental opinion in their Jurisdic-

tional Statement, but instead invoked this Court's juris-

diction on the basis of an incomplete record.

Il.TheDistrictCourtProperlyDeferredtoLegislative
Priorities In Considering A Remedy'

Even prior to the remedial stage of this litigation, the

district court resolvecl to defer to "the primary jurisdic-

tion of state legislatures over legislative reapportion-

ment." 590 F. Supp. at 376. The court noted that this

was especially appropriate where the legislature had been

afforded no previous legislative opportunity to assess the

substantial new requirement under the 1982 amendments

to section 2 of the voting Rights Aet for affirmatively

avoiding racial vote dilution rather than merely avoiding

its intentional imPosition. Id.



8

Furthermore, the court recognized "the difficulties
posed for the state by the imminence of 1984 primary
elections" and ofrered to convene at any time upon the
request of the state to eonsider and promptly rule upon
proposed remedies. /d.

In its supplemen[al opinion, the district court recog-
nized that neither the Voting Rights Act nor equitable
eonsiderations require-and neither do they permit-"the
rejection of a legislative plan simply beeause the review-
ing court would have adopted another thought to pro-
vide a better, more equitable overall remedy for the
originally found vote dilution." 590 F. Supp. at 382. The
court noted that such a prineiple of judicial deference to
legislative aims clearly applies in constitutional redis-
tricting eases, White v. lVeiser, 412 U.S. 783, 794-97
(1972), and properly extended that deference to its anal-
ysis under the Voting Rights Aet. Cf . Upham y. Seamon,
456 U.S.37 (1982).

The court refused to accept plaintiffs' suggestion that
racial vote dilution may be found "not only with respect
to.aggregations of black voters l'arge enough to make up
effective vobing majorities in single-member districts, but
with respect to smaller aggregations as well," and that
dilution in that sense resulted from the state's remedial
plan with respect to black aggregations outside the re-
medially-created single-member districts. 590 F. Supp.
at 380. In considering whether, under the cireumstances
of a particular ease, a 28.2 percent black minority may
have less voting strength than a 45 percent minority, the
eourt noted that such a determination depended, among
other things, upon the philosophical-political makeup of
the population majorities in the district.

The eourt refused to substitute its "intuitive" sense
that the overall voting strength of blaeks might be en-
hanced by packing them into a 45 percent minority dis-
trict and, as a result, refused to substitute the plaintiffs,
proposal for the state's.

9

III. The District Court's Findings of Fact Are Not Clearly
Erroneous, But Are Based On A Particularly Localized
Faetual Reeord.

Rule 52(a) of the Federal Rules of Civil Proeedure
provides that findings of fact shall not be set aside un-
less clearly erroneous, with due regard to be given to
the opportunity of the trial court to judge the cred-
ibility of the witnesses. Fed. R. Civ. P. 52 (1984). This
Court has enunciated general principles governing the
exereise of an appellate court's power to overturn find-
ings of a district eourt and has stated that the "fol'e-
most of these principles . . . is that 'a finding is "clearly
emoneous" when although there is evidence to support
it, the reviewing eourt is left with the definite and firm
conviction that a mistake has been committed.' United
States v. United States Gypsum Co., 333 U.S. 364, 395
(1948)." And,erson v. City of Bessemer Citg, 

- 
U.S.

-,58 
U.S.L.W. 4314 (Mar. 19, l98b).

As this Court recently emphasized in Anderson, su,pra,
'cthis standard plainly does not entitle a reviewing court
to reverse the finding of the trier of fact simply because
it is convinced that it would have decided the case dif-
ferently." Id.

The appellants' principal objection to the opinion be'
Iow is the district court's findings with respect to racial
polarization. Appellant's Brief aL 27, 34-35. While the
amian is not in a position to express a view as to whether
or not raeially polarized voting does exist in North Caro-
lina, we do believe that the district court's determination
that it does exist was not clearly erroneous. In fact, there
rvas no significant difference in the testimony of opposing
experts on this issue.

Plaintiff's expert, Dr. Bernard Grofman, used an "ex-
treme ease" analysis (focusing on voting in raeially seg-
regated precincts) and an "ecological regression" analysis
(focusing on both racially segregated and racially mixed



l0

precincts). Determining that the results under both anal-
yses conform closely in most areas, Dr. Grofman opined,
and the court found, that racial polarization did exist and
was statistically signiflcant. 590 F. Supp. at 36?-368 and
n.29.

Defendants' expert, Dr. Thomas Hofeller, had studied
Dr. Grofman's data and heard his live testimony. The
court noLed that, "[a]side from two mathematieal or
typographical errors, Dr. Hofeller did not question the
aecuracy of the data, its adequacy as a reliable sample
for the purpose used, nor that the methods of analysis
used were standard in the literature." Id. at 868. While
Dr. Hofeller did question the reliability of an extreme
case analysis when standing alone, the court noted that
he had made no specifie suggestion of error in the figures
used.

The court further noted that the general acruraey and
reliability of Dr. Grofman's data were eonfirmed by the
testimony of Dr. Theodore Arrington, expert wi,tness for
the intervenor-plaintiffs. "Proceeding by a somewhat dif-
ferent methodology and using different data, Dr. Arring-
ton eame to the same general conclusion respecting the
extent of racial polarization. . . ." Id. aL 868 n.Zg.

The distriet courb's finding on this subsidiary fact was
not the subject of extensive dispute between the parties,
experts, but was a reasonable finding about which there
was, in faet, some dqgree of agreement among the ex-
perts. As this Court has recen,tly crnfirmed:

[When] a trial judge's finding is based on his deci-
sion to credi,t the testimony of one of two or more
witnesses, eaeh of whom has told a coherent and
facially plausible s0ory that is not contradicted by
extrinsic evidence, that finding if not internally in-
consistent, can virtually never be clear error. 

- 
An-

derson v. City of Bessemer City, supra aL 4817.
Nor does Rule 52 make an exception to applying the

clearly erroneous standard to this finding on the basis

11

that it is merely one of several subsidiary facts. The
rule does not make exceptions or purport to exclude cer-
tain categories of faetual findings from the obligation of
an appellate court ,to aecept the district court's findings.
The rule "does not divide faets into categories; in partic-
ular it does not divide findings of fact into those that deal
with 'ultimate' faets and those that deal wi,th 'subsidiary'
facts." Pullmnn-Stand,ard v. Swint, 456 U.S. 273, 287
(re82).

The faets in this case lend themselves to a local consid-
eration particularly suited bo the trial court. The facts
in this ease are further complicated by North Carolina's
schizophrenic status under the Voting Rights Act. Only
40 of its 100 counties are subject to the preclearanee pro-
visions of Seetion 5 of the Act, and that divided coverage
results in different standards of review within the same
state under the two sections of the Act.

The numerous factual discrepancies in the briefs on
appeal have further muddied an already obseure factual
record. Supplemental Briefs of Appellees and Appellees-
Intervenors. These disputes, and the particularly loealized
circumstances in this case, make it an inappropriate vehi-
cle for a comprehensive review by ,this Court of the sub-
stanee of, and standards under, the 1982 Amendments to
the Voting Rights Act.

The three members of the district eourt panel wer.e resi-
dents of North Car.olina who conscientiously sorted the
complex local factual issues presented to them. In such a
ease, deference to the factual findings of the district
eourt is parLicularly warranted.



t2

CONCLUSION

The decision of the United States Distriet Court below
should be affirmed.

Respectfully submitted,

RocrmAr,un Moonu *
E. Mlm Bnaorn
Mrcnasr,A. Hrss

310 First Street, S.E.
IVashington, D.C. 20003
(202) 863-8638

Attorneys lor Arnicus Curine
R epu,bli,can N ational C otnmitt ee

* Counsel of Record

August 30, 1986