Edmisten v. Gingles Motion to Dismiss or Affirm

    Compl iments of . .

L  egal efense H u n d

To: Julius Chambers

Lani Guinier

NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 
99 Hudson Street • New York, N.Y. 10013 • (212)219-1900



No. 83-1968

I n t h e

^ttpmnr (tart of tljr Imtrft
October  T er m , 1983

R u f u s  L , E d m isten , et al.,

V.
Appellants,

R a lph  G in g les , et al.,
Appellees.

ON appeal from  t h e  u n ited  sta tes d istric t  court

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

MOTION TO DISMISS OR AFFIRM

J u l i u s  C h am bers 
L a st  G u in ie r *

NAAOP Legal Defense and 
Educational Fund, Inc.

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

L e s l ie  J .  W in n e r

Ferguson, Watt, Wallas, 
and Adkins, P.A.

951 S. Independence Blvd. 
Charlotte, North Carolina 28202 
(704) 375-8461

Attorneys for Appellees 
Ralph Gingles, et al.

Counsel of Record



1

QUESTIONS PRESENTED

I. In this action brought, under Section 2 

of the Voting Rights Act, the District 

Court found as a matter of fact that, under 

the totality of relevant circumstances in 

North Carolina, the use of the challenged 

legislative districts results in black 
voters in those districts having less 

opportunity than do other members of the 

electorate to participate in the political 

process and to elect representatives of 

their choice.

Were these findings of fact clearly 
erroneous under Rule 52(a)?

II. Does administrative preclearance of a 
legislative district under Section 5 of the 

Voting Rights Act absolutely bar private



11  -

parties from litigating the legality of 

that district under Section 2 of the Voting 

Rights Act, in the face of clear statutory 
language to the contrary?



- i i i -

TABLE OF CONTENTS
Page

NOTION TO DISMISS OR AFFIRM ............  1

STATEMENT OF THE CASE ...................  2

I. THE DISTRICT COURT'S DETERMINATION 
THAT NORTH CAROLINA'S GENERAL 
ASSEMBLY DISTRICTS VIOLATE § 2 OF THE 
VOTING RIGHTS ACT IS BASED ON THE 
CORRECT STANDARD AND IS NOT CLEARLY 
ERRONEOUS ...........................  8

A. The District Court Applied the
Correct Standard in Determining 
That the Election Districts in 
Question Have a Discriminatory 
Result ....................... 8

B. The District Court's Ultimate and
Subsidiary Findings Are Not 
Clearly Erroneous ........... 14

1. The Court Weighed the Par­
ticular Circumstances Rele­
vant to This Action in
Making Its Findings ...... 14

2. The District Court's Finding
oE Racially Polarized Voting 
is Not Clearly Erro­
neous ..................  22

3. The District Court's Ulti­
mate Finding of Discrimina­
tory Result is not Clearly 
Erroneous ...............  35



I V

Page
II. THE DISTRICT COURT PROPERLY CON­

SIDERED ALL THE STATE’S EVIDENCE .. 42

III. PRECLEARANCE UNDER SECTION 5 
OF THE VOTING RIGHTS ACT DOES 
NOT BAR APPELLEES' CLAIM UNDER
SECTION 2 .... ............. .......  45

CONCLUSION ...... .......................  56



V

TABLE OF AUTHORITIES
Cases: Page

Alexander v. Gardner-Denver Company,
415 U.S. 36 ( 1 974) ...............  51

Allen v. McCurry, 449 U.S. 90
( 1 980) .............. .............  50

Chandler v. Roudebush, 425 U.S. 840
( 1 976) ............................  51

Cooper v. Aaron, 358 U.S. 1 (1958) .... 45

Donnell v. United States, 682 F.2d
240 (D.C. Cir. 1 982) ............. 54

East Carroll Parish School Bd. v.
Marshall, 424 U.S. 636 (1976) ___  12,27

Jones v. City of Lubbock, Tex., 727
F. 2d 364 (5th Cir. 1984) .......  14,15

Kirksey v. Board of Supervisors, 554
F. 2d 139 (5th Cir. 1977) ......  41

Kremer v. Chemical Construction 
Corporation, 456 U.S. 461
( 1 982) . .........................  50

Major v. Treen, 574 F. Supp. 325 (E.D.
La. 1 983)(three judge court) ... 34,40,48



- v i -

Page
Matter of Merrill, 594 F.2d 1064 (5th

Cir. 1979) ....................  50

Monroe v. Bd. of Commissioners, 391
U.S. 450 (1 968) ...............  45

Morris v. Gressette, 432 U.S. 491
( 1 977 ) ........................ 53,54

NAACP v. Gadsden Co. School Bd.
691 F.2d 978 (11th Cir. 1982) ___  27,41

Porter and Dietsch, Inc. v. F.T.C.,
605 F.2d 294 (7th Cir. 1979), 
cert., denied,
445 U.S. 950 ( 1 979) ............. 51

Pullman-Standard v. Swint, 456 U.S. 273
( 1 982) ....... ............ ..... 15

Rogers v. Lodge, 458 U.S. 613 (1982) ... 15,32
Rybicki v. State Bd. of Election of

Illinois, 574 F. Supp. 1147 (E.D. 111. 
1983)(three judge court) ........  14,40

Swann v. Ch ar 1 o 1.1. e-Mec kl enb urg Bd .
of Ed., 306 F. Supp., 1291 (W.D.N.C.
1969) aff’d , 402 U.S. 1 (1971) ..... 44

United States v. East Baton Rouge
Parish School Bd., 594 F.2d 56 (5th 
Cir. 1979) ........................ 48

United States v. Marengo Co. Comm., 731
F.2d 1 546 ( 1 1th Cir. 1984) .....  14,40

Velasquez v. City of Abilene Tex., 725
F. 2 d 1017 (5th Cir. 1984) .......  14,1 5



V 1 1

Page

Whitcomb v. Chavis, 403 U.S. 124
(1971) ..................... ........  40

White v. Regester, 412 U.S. 735
(1973) ............... ..... 12,13,41,42

Zimmer v. McKeithen, 485 F.2d 1297 
(5th Cir. 1973) .... .......

Constitutional and Statutory Provisions

12,27

U.S. Const, amend. XIV ........... 32

Voting Rights Act Amendment of 1982, 
Pub. L. No. 97-205, 96 Stat.
131 (1982) ................... passim

Voting Rights Act of 1965, 42 U.S.C. 
§ 1 973(c) .... ................. passim

Rule 52(e) P.R. Civ. P• ••••••••••• 1 5

28 CFR § 51.41 ................... 53

28 CFR § 51.46 .... ...............

Legislative History
S. Rep. No. 97-417, 97th Cong.,2d

53

Sess. (1982) ...... ........  9,10,13,17,
34,41,48,49,50

H.R. Rep. No. 97-227, 97th Cong.,
1st Sess. (1981) .................

Other Authorities

9,48

Wright, Miller and Cooper, Federal 
Practice and Procedure:
Jurisdiction § 4416 et seq........ 50



1

No. 83-1968 

IN THE

SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1983

RUFUS L. EDMISTEN, et ai., 

Appellants , 

v .

RALPH CINGLES, et al. ,

Appellees.

On Appeal From the United States 
District Court For the Eastern 

District of North Carolina

MOTION TO DISMISS OR AFFIRM

Pursuant to Rule 16.1, Appellees, 

Ralph Gingles, et al., move that the Court 

dismiss the appeal or affirm the judgment 

below on the ground that the guest ions on



2

which the decision of the case depends are 

so unsubstantial as not to need further 
argument.

Statement of the Case

Appellees filed this action on Sep­

tember 16, 1981, challenging the 1981

apportionment of both houses of the North 

Carolina General Assembly ("the General 

Assembly") on the grounds, inter alia, that 

the apportionments were illegal and 

unconstitutional in that: (1) each had been 
enacted pursuant to provisions of the North 

Carolina Constitution which were required 

to be but had not been precleared under

Section 5 of the Voting Rights Act of 1965,
1as amended, 42 U.S.C. § 1973c ("§ 5 of the

Forty of North Carolina's 100 coun­
ties are covered by Section 5 of the 
Voting Rights Act.



- 3 -

Voting Rights Act" or "Section 5"); and (2) 

the use of multi-member districts illegally 

submerged minority population concentra­

tions and diluted minority voting strength 

in violation of the Constitution and 

Section 2 of the Voting Rights Act of 1963, 

as amended, 42 U.S.C. § 1973.

After the Complaint was filed, the 

State of North Carolina submitted the 

provisions of the North Carolina Consti­

tution, which prohibit dividing counties in 

the formation of a legislative district, 

for preclearance under Section 5. The 

Attorney General, in a letter signed by 

William Bradford Reynolds, objected to the 

provisions, finding that the use of large 

multi-member districts "necessarily 

submerges cognizable minority population 

concentrations into larger white elec­

torates." Jurisdictional Statement at 6a.



The Attorney General, acting through 

Reynolds, also found the 1981 House, Senate 

and Congressional plans, as well as two 

subsequent House plans and one subsequent 

Senate plan, to be racially discriminatory.

Despite warnings from special counsel, 

black citizens' groups, and various 

legislators that the use of multi-member 

districts could result in impermissible 

dilution of black citizens' voting 

strength, the General Assembly continued to 

use this method in the House and in the 

Senate. At an 8 day trial in July 1983 

before all three judges, appellees chal­

lenged six of the multi-member districts, 

five in the House and one in the Senate. 

Appellees also challenged the configuration 

of one single member Senate District. Five 

of the challenged districts consist



5

entirely of counties not covered by Section 

5 and , therefore, were not subject to the 

Attorney General's review.

On January 27, 1984, the Honorable J. 

Dickson Phillips, Jr., writing for the 

unanimous District Court,, found that black 

citizens of North Carolina do not have an 

equal opportunity to participate in the 

State's political system and that use of 

the challenged legislative districts 

illegally minimizes their opportunity to 

elect representatives of their choice. Ihe 

District Court made extensive and meticu­

lous findings that there currently exists: 

a disparity between black and white voter 

registration which is a legacy of past 

intentional disfranchisement; severe socio­

economic inequities which result from 

past discrimination and which give rise to 

a commonality of interests within geo­

graphically identifiable black communities;



6

minimal electoral success of black candi­

dates; the use of racial appeals in cam­

paigns; and a persistent failure of most 

white voters to vote for black candidates. 

In short., the Court found that, while there 

has been some progress, the gap between the 

ability to participate of white and black 

voters remains substantial.

Based on these finding the District

Court entered a unanimous Order which

declared that the apportionment of the

General Assembly in six challenged multi-

member districts and one single member

district violate Section 2 of the Voting

Rights Act, and enjoined elections in those

districts pending court approval of a

districting plan which does not violate 
2Section 2.

Appellees did not challenge all 
multi-member districts used by the State 
nor did the District Court, rule that the 
use of multi-member districts is per se 
illegal. The District Court's Order leaves’



7

Appellants' petition for a stay of the

Order was unanimously denied by the

District Court , and was subsequently denied

by Chief Justice Burger, on February 24,

1984, and by the full Court on March 5, 
31 984.

untouched 30 multi-member districts in the 
House and 13 in the Senate. The District 
Court's Order did not affect 48 of North 
Carolina's 33 House of Representative 
Districts and did not affect 27 of North 
Carolina's 29 Senate Districts.

By subsequent orders, the District 
Court approved the State's proposed 
remedial districts for six of the seven 
challenged districts, and primary elec­
tions have been held in those districts. 
The District Court has not acted on the 
Defendants' proposed remedial apportion­
ment of one district, former House 
District No. 8, pending preclearance of 
defendants' proposal under Section 5.



8

ARGUMENT

I. THE DISTRICT COURT’S DETER­
MINATION THAT NORTH CAROLINA'S 
GENERAL ASSEMBLY DISTRICTS VIOLATE 
§2 OF THE VOTING RIGHTS ACT IS 
BASED ON THE CORRECT STANDARD AND 
IS NOT CLEARLY ERRONEOUS

A. The District Court Applied 
the Correct Standard in Determining 
That the Election Districts in Ques­
tion Have a Discriminatory Result

Section 2 of the Voting Rights Act was 

amended in 1982, by the Voting Rights 

Amendments of 1982, 96 St at. 131 (June 29,

1982), to provide that a claim of unlawful 

vote dilution is established if, "based on 

the totality of circumstances," members of 

a racial minority "have less opportunity 

than other members to participate in the 

political process and to elect repre­

sentatives of their choice." 42 U.S.C. 

§1973, as amended. The Committee Reports 

accompanying the amendment make plain the



9

congressional intent to reach election

plans that minimize the voting strength of

minority voters. S. Rep. No. 97-417, 97th

Cong., 2d Sess. at 28 (1982) (hereafter

"Senate Report" or " S.Rep."); H. R. Rep.

No. 97-227, 97th Cong., 1st Sess. at 17-18
4(1981) (hereafter "House Report").

The Senate Report, at pages 27-30, sets 

out a detailed and specific road map for 

the application of the amended Section 2. 

When called upon to apply the statute, 

as amended, to a claim of unlawful dilu-

Appellants assert that the legislative 
history of the 1982 amendments is unclear 
because there is no conference committee 
report. J.S. at 8. However, as the House 
unanimously adopted S.1992, which had been 
reported out of the Senate Committee on 
the Judiciary and adopted by the Senate, 
there was no need for a conference 
committee or for a conference committee 
report. See J.S. at 9a, n,7. In fact 
there was no conflict between the intent 
of the House and of the Senate. The 
Senate adopted substitute language to 
spell out more specifically the standard 
which the House meant to codify. S. Rep. 
at 27.



1 0

tion, the federal courts were directed by 

Congress to assess the interaction of the 

challenged electoral mechanism with the 

relevant factors enumerated in the Senate 
Report at 28-29.

It is apparent from the analysis of 

Section 2 contained in the Memorandum 

Opinion and from the detailed assessment of 

the facts that the District Court under­

stood and properly applied its Congres­

sional charge to the facts of this case.

The actual standard applied by the 

District Court is embodied in its 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 persistent 
racial appeals in political campaigns, a 
relatively depressed socio-economic status 
resulting in significant degree from a 
century of d e jure and de facto segrega­
tion, and the 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 oppor­
tunity than do other members of the 
electorate to participate in the political 
process and to elect representatives 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 Districts Nos. 2 and 6 
having their voting strength diluted by 
fracturing their concentrations 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 participate in the 
political process and to elect represen­
tatives of their choice. J.S. at 51a-52a,

Appellants assert that "the district, 

court erred by equating a violation of 

Section 2 with the absence of guaranteed 

proportional representation." J.S. at 9. 

This statement, supported only by a 

sentence fragment from the opinion, J.S. 

at 9-10, grossly distorts the standard 

actually used by the District. Court, and



12

ignores the extensive discussion by the 

District Court of the meaning and proper 

application of Section 2 of the Voting 

Rights Act. 3.S. at lla-18a. In that 

discussion, the District Court explicitly 

stated its interpretation of the standard 

to be applied and the factors to be 
considered:

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 suggested as probative of 
dilution in White v, Regester and 
subsequently elaborated by the 
former Fifth Circuit in Zimmer v. 
McKeithen, 485 F.2d 1297 ("5th C i r. 
TTTT) Ten banc) , a f f ' d on other 
grounds sub nom. East Carroll 
Parish School Board v. Marshall, 
4 2 4 U . S. 636 ( 1 9 76) (per curiam) .
These typically include, per the 
Senate Report accompanying the 
compromise version enacted as 
amended Section 2:



1 3

[Thereafter the District Court listed the 

factors enumerated at pp. 28-29 of the 

Senate Report.] 3.S. at 12a-13a.

The District Court. did not ignore 
White v. Reqester, 412 U.S. 755 (1973), and 

its progeny, nor did the District Court, 

interpret. those cases to require pro­

portional representation. See 3. S.

1 4 a -1 5 a . As the Court, explicitly said,

" [ T ] h e fact that. blacks have not been

elected under a challenged districting plan 

in numbers proportional to their percentage 

of the population [does not establish that, 

vote dilution has resulted]." 3.S. at 15a.

In sum, the District Court examined
each factor specified by Congress in the 

Senate Report and, without. limiting its

assessment to just, one factor, as appel­

lants do, assessed them as a totality. The

The Courts of other circuits, as did 
the Court, below, have interpreted the
amended Section to require the trial court



14

District Court clearly engaged in the 

Congressionally mandated analysis and 
applied the proper standard.

B. The District Court's Ultimate
and Subsidiary Findings of Fact 
Are Not Clearly Erroneous

1 . The Court. Weighed The Particu­
lar Circumstances Relevant To 
This Action In Making Itg 
Findings

Since the District Court applied the 

proper standard to the facts before it, the 

real question raised by appellants is 

whether the three judges properly weighed

to examine the factors listed at pages 
28-29 of the Senate Report and, consider­
ing the totality of the circumstances, 
determine whether the challenged election 
method violates Section 2. U.S. v. 
Marengo County Comm., 731 F.2d 1546, 
1565-1566 (11th Cir. 1984); Jones v. City 
of Lubbock, 727 F.2d 364, 384-385 (5th 
Cir. 1984); Velasquez v. City of Abilene, 
Tex., 725 F.2d 1017, 1022-23 (5th Cir. 
1984); Rybj-cl<j- v» state Bd . of Elections, 
574 F . Supp. 1147, 1148-50 (E.D. TIT. 
1983)(three judge court).



the voluminous evidence. While the judges 

heard eight days of testimony, examined 

hundreds of documents, and made thirty- 

three pages of factual findings, the 

appellants base their argument, in essence, 

on one fact: the electoral success of a

few black candidates in 1982. The ques­

tion thus raised is whether, in assessing 

the totality of circumstances, the District

Court's judgment as to the proper weight to
6give to this fact is clearly erroneous.

Rule 52(a), F.R.Civ.P., provides that, 
neither the ultimate nor the subsidiary 
findings of fact of the District Court may 
be reversed unless they are clearly 
erroneous. Rogers v. Lodge , 458 U.S. 613, 
6 2 2-62 3 , 627 ( 1 982 ) Telearly erroneous
standard applies to finding that an at 
large voting system is being maintained 
for a discriminatory purpose and to the 
underlying subsidiary findings); Pull­
man-Standard v. Swint. , 456 U.S. 273,
287-293 (1982). See also Velasquez
v. City of Abilene, Tex. , 725 F. 2d 1017, 1021 
(5th Cir. 1984); Jones v. City of Lubbock, 
727 F.2d 364, 380.( 5th Cir. 1984).



16

The District Court analyzed each of 

the factors suggested by Congress to 

determine its bearing on the ability of 

black citizens to elect candidates of their 

choice to the General Assembly. One factor 

is the extent of black electoral success. 

With regard to that factor, it is plain 

that before this action was commenced in 

1981, a nominal number of blacks had been 

elected to the General Assembly. The 

District Court discussed the 1982 elections 

and found them to be uncharacteristic. 

After examining black electoral successes 

and failures, Judge Phillips concluded:

[ T ]he 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 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



1 7

either generally or spe­
cifically in the areas of the 
challenged districts.

J.S. at 37a-38a. See also, J.S. at 37a 
n . 2 7 .

This conclusion was considered along 

with findings on the other factors enumer­

ated in the Senate Report. These are 
summarized as follows:

a. There is a current disparity in 

black and white voter registration result­

ing from the direct denial and chilling by 

the State of registration by black citi­

zens, which extended officially into the 

1970's with the use of a literacy test and 

anti-single shot voting laws and numbered 

seat requirements. The racial animosities 

and resistence with which white citizens 

have responded to attempts by black



18

citizens to participate effectively in the 

political process are still evident today. 

J.S. at 22a-26a.

b. Within each challenged district 

racially polarized voting is persistent, 

severe, and statistically signi ficant. J.S. 

at 38a-39a, 46a.

c. North Carolina has a majority 

vote requirement which exists as a con­

tinuing practical impediment to the 

opportunity of black voting minorities in 

the challenged districts. J.S. at 29a-30a.

d. North Carolina has a long history 

of public and private racial discrimination 

in almost all areas of life. Segregation 

laws were not repealed until the late 

1960's and early 1970's. Public schools 

were not significantly desegregated until 

the early 1970's. Thus, blacks over 30 

years old attended gualitatively inferior 

segregated schools. Virtually all neigh­



1 9

borhoods remain racially identifiable, and 

past discrimination in employment continues 

to disadavantage blacks. Black households 

are three times as likely as white house­

holds to be below poverty level. The lower 

socio-economic status of blacks results 

from the long history of discrimination, 

gives rise to special group interests, and 

currently hinders the group's ability to 

participate effectively in the political 
process. J.S. at 25a-29a.

e. From the Reconstruction era to the 
present time, appeals to racial prejudice 

against black citizens have been used 

effectively as a means of influencing 

voters in North Carolina. As recently as 
1983, political campaign materials reveal 

an unmistakable intention to exploit white 

voters' existing racial fears and prej­

udices and to create new ones. J.S. at
3 1 a-32a.



20

f. The extent of election of blacks 

to public office at all levels of govern­

ment is minimal, and black candidates 

continue to be at a disadvantage. With 

regard to the General Assembly in particu­

lar, black candidates have been signifi­

cantly less successful than whites. J.S. 
at 33a-34a, 37a-38a.

g. The State gave as its reason for 

the multi-member districts its policy of 

leaving counties whole in apportioning the 

General Assembly. However, when the 

challenged apportionments were enacted, the 

State's policy was to divide counties when 

necessary to meet population deviation 
requirements or to obtain Section 5 

preclearance. Many counties were divided. 

The policy of dividing counties to resolve 

some problems but not others does not 

justify districting which results in racial 
vote dilution. J.S. at 49a-50a.



21

The District. Court included the extent 

to which blacks have been elected to office 

as "one circumstance" to be considered, 42 

U.S.C. §1 973(b) , made an intensely local 

and detailed appraisal of all of the 

relevant circumstances, and determined that 

the challenged districts have a discrimi­
natory result.

For this Court to reverse the District 

Court's ultimate findings would require 

this Court, to find (1) that, the District 

Court's assessment of pre-1982 electoral 

success was clearly erroneous; (2) that the 

District Court's assessment that the 1982 

elections were atypical was clearly erro­

neous; and (3) that, in weighing the 

totality of the circumstances, the relative 
weight given by the Court. to one post 

litigation election year was clearly
erroneous .



22

2. The District Court's Finding
of Racially Polarized Voting is 
Not Clearly Erroneous.

Appellants assert that the electoral

success of some blacks in 1982 precludes

the District Court from finding severe

racially polarized voting. This is the

only subsidiary finding appellants chal- 
7lenge.

In finding voting to be racially 

polarized, the District Court engaged in a 

detailed analysis of election returns from 

each of the challenged districts extending 

over several elections, supported by the 

testimony of numerous lay witnesses and

Although appellants challenge this 
finding as an error of law, the finding of 
racially polarized voting is one of fact 
covered by Rule 52(a). Jones v. Lubbock, 
727 F.2d at 380. Appellants apparently 
limit this challenge to those areas not 
covered by §5. They do not discuss facts 
from either House District No. 8 (Wilson, 
Edgecombe, and Nash Counties) or Senate 
District No. 2.



23

expert testimony regarding every election 

for the General Assembly in which there had 

been a black candidate in the challenged 

multi-member districts „ for the three 

election years preceding the trial. d. S . 

38a-39a. Based on its exhaustive analysis 

of the evidence, the District Court found 

that racially polarized voting was severe 
and persistent.

Appellants erroneously claim that the 

District Court determined racial polari­

zation by labeling every election in which 

less than 30% of the whites voted for the 

black candidate as racially polarized. J.S. 

at 17. Although it is true that no black 

candidate ever managed to get votes from 

more than 3 0 % of white voters, this is not 

the standard the District Court used.

Instead, the District Court examined 

the measurement of racially polarized 

voting to determine the extent to which



24

black and white voters vote differently 

from each other in relation to the race of 

the candidates. J.S. at 39a, n.29. The

District Court's assessment can be sum­
marized in three findings:

a. The evidence shows patterns of 

racial polarization. The Court found:

On the average, 81.7?o 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-can­
didate 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 Democratic primary and the 
only choice was to vote for a Republi­
can 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 uncontested.



25

3 . 5 .  a t  4 0 a .

b. The correlation between the race 
of the voter and the race of the 

candidate voted for was statistically 

significant at the .00001 level in every 

election analyzed. Although correlation 

coefficients above an absolute value of 

.5 are relatively rare and those above 

.9 are extremely rare, ail correlation 

coefficients in this case were between 

.7 and .98 with most above .9. J.S. at 
38a~39a and n.30.

c. In all but two elections, the 

black candidate lost among white voters 

—  that is the results of the election 

would have been different if held only 

in the white community than if held only 

in the black community. J.S. at 39a-40a 

and n.31. The District Court used the 

term "substantively significant" in 

these circumstances. Appellants posited



26

no alternative definition supported 

either by case law or political science 

literature. J.S. at 40a, n.32.

Appellants offered no statistical 

analysis which contradicted the conclu­

sions of the District Court. They did 

not question the accuracy of the data or 

assert that the methods of analysis used 

by appellees' expert were not standard 

in the literature. J.S. at 38a n.29. In 

fact, appellants conceded that the 

polarization of the voting was statis­

tically significant for each of the 
elections analyzed.

Nonetheless, appellants contest the 
District Court's finding of racially 

polarized voting citing examples from 

only one post-1itigation election year, 

1982. This is particularly inappro­

priate, as the District Court concluded 

that 1982 was "obviously aberrational"



27

and that whether it will be repeated is 

sheer speculation. Among the aberra­

tional factors was the pendency of this 

lawsuit and the one time help of black 

candidates by white Democrats who wanted 

to defeat single member districts. J.S. 

at 37a. This skeptical view of post- 

litigation electoral success is sup­

ported by the legislative history of the 

Voting Rights Act and the case law. 

Senate Report at 29, n.115; Zimmer v . 

McKeithen, 483 F.2d 1297, 1307 (5th Cir. 

1 973 ) ( e_n banc) a f f1 d on other grounds 

sub nom East Carroll Parish School Board 

v. Marshall, 424 U.S. 636 (1976); NAACP 

v. Gadsden Co. School Board, 691 F.2d

at 983.



28

In addition to being drawn only 

from post-litigation elections, the 

examples given by appellants are 

misleading and are taken out of context. 
For example:

(a) Appellants point out that in the 

1982 Mecklenburg House primary, black 

candidate Berry received 5 0% of the 

white vote. The District Court noted 

this but stated that it "does not alter 

the conclusion that there is substantial 

racially polarized voting in Mecklenburg 

County in primaries. There were only 

seven white candidates for eight 

positions in the primary 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." J.S.
at 42a .



29

The other black candidate, Richard­

son, was ranked last by white voters in 

the primary but second, after Berry, by 

blacks. In the general election, 

Richardson was the only Democrat who 
lost .

Similarly, in the 1982 Mecklenburg 

County Senate race, the black candidate 

who was successful in the primary was 

the only Democrat who lost. in the 

general election, ranking first among 

black voters but sixth out of seven by 

white voters for four seats.

b. Appellants point out that black 

candidate Spaulding received votes from 

47% of white voters in the 1982 general 

election in Durham County. They neglect 

to point out there was no Republican 

opposition in that election, and that a 

majority of white voters therefore



30

failed to vote for the black incumbent 

even when they had no other choice. 
J.S. at 44a .

Appellants also failed to point out 

that in the Durham County primary for 

1982 there were only two white candi­

dates for three seats so at least one 

black had to win. As the District. Court 

noted, "Even in this situation, 63% of 

white voters did not vote for the black 

incumbent, the clear choice of the black 
voters." J.S. at 44a.

(c) Appellants point out that in 

Forsyth County two black candidates in 

1982 were successful but fail to note, 

as the District Court, did, that white 

voters ranked the two black candidates 

seventh and eighth out of eight candi­

dates for five seats in the general 

election while black voters ranked them 
first and second. J.S. at. 43a.



31

(d) As another example, while noting 

that black elected incumbents have been 

re-elected, appellants fail to note that 

white voters almost always continue to 

rank them last and that black appointed 

incumbents have uniformly been defeated.

The three judges who heard the evi­

dence considered each of the facts which 

appellants point out, together with the 

surrounding circumstances, and con­

cluded that these pieces do not alter 

the conclusion of severe and persistent 

racially polarized voting.

Appellants also assert that ra­

cially polarized voting is probative 

of vote dilution only if it always 

causes blacks to lose. In fact, in 21 

of the 32 election contests analyzed in 

which the black candidate received 

substantial black support, the black



32

candidate did lose because of racial 

polarization in voting. That is, he 

lost even though he was the top choice 

of black voters because of the paucity 

of support among white voters.

Appellants assert that whites must 
uniformly win for racially polarized 

voting to be probative. They support 

this argument by citing Rogers v . Lodge, 

supra , a case decided under the purpose 

standard of the Fourteenth Amendment of 

the United States Constitution. 

Appellees do not believe that Rogers v . 

Lodge stands for the proposition boldly 

asserted by appellants, but the Court, 

need not consider, in the context of 

this case, whether the complete absence 

of black electoral success is necessary 

to raise an inference that an at large 

system is being maintained for a

discriminatory purpose.



33

The instant case was decided under 

the Voting Rights Act, and the statutory 

language of Section 2 specifies that a 

violation exists if black citizens have 

"less opportunity" to elect representa­

tives of their choice; it is not limited 

to situations in which black candidates 

have absolutely no chance of being 

elected. 42 U.S.C . § 1 973(b). Racially 

polarized voting can give rise to this 

unequal opportunity, even if it does not 

cause black candidates to lose every 
single election.

Appellants' argument is, in es­

sence, that any black electoral suc­

cess necessarily defeats a Section 2 

claim, an argument which defies the 

intent of Congress. See S. Rep. at 29, 

n . 11 5 , and discussion at p. 35, infra.



34

As the Court 

Treen , 374 F.Supp. 

1983) (three judge

noted in Major v . 

325, 339 (E.D. La.

court) :

Nor does the fac t that several 
blacks have gained elective 
office in Orleans Parish detract 
from plaintiffs' showing of an 
overall pattern of polariza­
tion... Racial bloc voting, in 
the context of an electoral 
structure wherein the number of 
votes needed for election exceeds 
the number of black voters, sub­
stantially diminishes the 
opportunity for black voters to 
elect the candidate of their 
choice .

The District Court considered all 

of the evidence, including the facts to 

which the appellants allude, and determined 

that racially polarized voting is severe 

and persistent in the districts in ques­

tion. This finding is not clearly erro­
neous.



35

3. The District Court's Ultimate 
Finding of Discriminatory 

Result is Not Clearly Erroneous

The task of the three District Court 

judges was t. o examine historic and current 

racial and political realities in North 

Carolina, to determine if the challenged 

legislative districts operate to deny black 

citizens an equal opportunity to elect 

representatives to the General Assembly. 

The judges below engaged in an intensely 

local appraisal of these factors and 

appellants ask this Court. to rule that 

their determination was clearly erroneous.

Appellants do not challenge the lower 

court's findings on six of seven Section 2 

factors, and, as discussed in part 18(2), 

supra, the seventh subsidiary finding, that 

voting in North Carolina is racially 
polarized, is not clearly erroneous. Thus,

the question is whether the District Court



36

properly assessed the totality of circum­

stances. In the Statement of the Case 

appellants recite random black electoral 

successes and then imply, without saying, 

that under the circumstances, a finding of 

discriminatory result is erroneous because 

it is tantamount to a requirement of 

proportional representation.

As was discussed in part IB(1), supra, 

the District Court did not ignore the 

election of blacks in its weighing of the 

facts. Rather, after examining the extent 

of minority election, the District Court 

found, in addition to minimal election of 

blacks to the General Assembly before this 

litigation was initiated, that in the six 

multi-member districts in question, black 

candidates who won Democratic primaries 

between 1970 and 1982 were three times as



37

likely to lose in general elections as were 

their white Democratic counterparts. 3.S. 
at 33a-34a.

In addition, the District Court found

that blacks hold only 9% of city council

seats (many from majority black election

districts); 1.3% of the county commission

seats; 4?o of sheriff's offices; and 1% of

the offices of the Clerk of Superior Court.

No black has been elected to statewide

office except three judges who ran unop-

posed as appointed incumbents. No black

has been elected to the Congress of the

United States as a representative of this 
8state. J.S. at 33a.

On a county by county basis appellants 

also paint a lopsided picture. In Forsyth 

County appellants specify isolated in­

stances of electoral success but ignore

8 North Carolina is 22.4?o' black in pop­
ulation.



38

electoral failures such as: (1) the defeat 

of appointed black incumbents which 

resulted in no blacks being elected to the 

House of Representatives from Forsyth 

County in 1978 and 1980, years in which all 

white Democrats were successful; (2) the 
defeat in 1980 of the black who had been 

elected to the County Commission in 1976 

which resulted in a return to an ail white 

County Commission; and (3) the defeat in 

1 978 and 1 980 of the black who had been 

elected to the Board of Education in 1976 

returning the Board of Education to its 
previous all white status.

In each of these instances the evi­

dence showed that black Democrats were 

defeated when white Republicans did well, 

but white Democrats won consistently, even 
in good Republican years.



39

In addition, appellants do not mention 

that House District No. 8, which is 39 % 

black in population and has four repre­

sentatives, has never elected a black 

representative, J.S. at 36a, or that

Mecklenburg County, which, with eight House 

seats and four Senate seats, is the largest 

district in the General Assembly and which 

is over 2 3 % black in population, has this 

century elected only one black senator 

(from 1975-1979) and one black represen­

tative (in 1982, after this lawsuit was 
filed). J.S. at. 34a.

In Mecklenburg County, as in Forsyth

County, black Democrats who were successful

in Democratic primaries, in the House in

1980 and 1982 and in the Senate in 1982,

were the only Democrats to lose to white
Republicans. No white Democrat lost to a

9Republican in those elections.

9 Thus, this case is in no way similar



40

Rather than requiring guaranteed 

election, and rather than simplistical1y 

considering erratic examples of electoral 

success, the District Court followed the 

statutory mandate by considering black 

electoral success and failure as one 

factor in the totality of circumstances 

leading to its conclusion of discriminatory 
result. 42 U.S.C. § 1973(b).

Other courts have not required the 

complete absence of black electoral success 

in order to find a violation of Section 2. 

United States v. Marengo County Commission, 

731 F .2 d at 1 572 ; Major v. Treen, 574 

F.Supp. at 351-352; Rybicki v. State Bd. of 

Elections , 574 F.Supp. at 1151 and n.5. 

This interpretation of the amended §2 is 

consistent with pre-amendment case law

to Whitcomb v . Chavis , 403 U.S. 124, 
150 — 152 (19 71 ) , in which black defeat was 
caused by Democratic Party defeat, not by 
race.



41

which held that some black electoral 

success does not preclude a finding of 

dilution. See White v. Regester, 412 U. S. 

at 766; NAACP v. Gadsden Co. School Board, 

691 F.2d at 983; Kirksey v. Board of 

Supervisors , 5 54 F.2d 139, 143 (5th Cir. 

1977).

The conclusion of the District Court, 

that the election of some minority can­

didates does not negate a finding of 

discriminatory result, is consistent with 

the clear intent of Congress as stated in 

the Senate Report: "[T]he election of a few 

minority candidates does not 'necessarily 

foreclose the possibility of dilution of 

the black vote', in violation of this 
section." S. Rep. at n.115.

The determination of whether an 

electoral system has an illegal discrimi­

natory result requires findings of fact 

which blend "history and an intensely local



42

appraisal of the design and impact of the 

... multi-member district in the light of 

past and present reality, political and 

otherwise." White v. Regester, 412 U.S. 

at 769-770. The District Court in this 

action engaged in just this "intensely 

local appraisal." The District Court's 

findings are so meticulously supported by 

the record as to warrant summary affirmance 
by this Court.

II. THE DISTRICT COURT PROPERLY CON­
SIDERED ALL THE STATE'S EVIDENCE

Appellants dispute the weight the 
District Court gave to evidence that a 

handful of black voters and a few black and 

white politicians disagreed with the single 

member district remedies proposed by 
plaintiffs.



I n t heir J u r i s d i c t i o n a l S t at emeut

appellants allude to the testimony of one 

black legislator and some white politicians 

who supported retention of the multi-member 

redistricting plans under which they were 

elected and to the testimony of three black 

witnesses who testified in opposition to 

single member districts.
Appellants characterize this evidence 

as substantial, J.S. at 21, and urge that 

the Court below erroneously disregarded it. 

In fact the District Court carefully 

evaluated the testimony of all the State's 

witnesses as a factor bearing upon the 

claim of racial vote dilution. J.S. at 

47a-48a. The Court found that the black 

witnesses who testified for the State were 

a "distinct minority" whose views "went 

almost exclusively to the desirability of 

the remedy sought by plaintiffs, and not to



44

the present existence of a condition of 

vote dilution." _I_d. This finding is amply 
supported by the record.

The appellants erroneously contend that 

in evaluating a claim of racial vote 

dilution, the District Court should have 

found that evidence that the plaintiffs' 

proposed remedy was not unanimously 

endorsed by every member of the black or 

white community outweighed all other 

evidence of the objective factors identi­

fied as relevant by Congress. This is 

fundamentally inconsistent with the 

Congressional mandate in amending Section 2 

to eliminate racial vote dilution. It does 

not raise a substantial question. Compare 

Swann v. Char1otte-Mecklenburq Board of 

Education, 306 F. Supp. 1291, 1293 (W.D.

N . C .  1 9 6 9 )  a f f ' d ,  402 U .S.  1 ( 1 9 7 1 ) .  C f .



45

Cooper v. Aaron, 358 U.S. 1, 16 (1958); 

Monroe v. Bd . of Commissioners, 391 U.S. 
450, 459 (1968).

III. PRECLEARANCE UNDER SECTION 
5 OF THE VOTING RIGHTS 
ACT DOES NOT BAR APPELLEES' 
CLAIM UNDER SECTION 2

Appellants rely on the decision by the 

Assistant Attorney General of the United 

States to preclear the House and Senate 

reapportionments pursuant to Section 5 of 
the Voting Rights Act to contend that 

appellees (plaintiffs below) were estopped 

or precluded from pursuing their Section 2 

claims in those districts composed of



46

counties covered by Section 5. This 

argument is specious, and was rejected by 

the District Court for three reasons:

(1) The statute expressly contem­

plates a d_e novo statutory action by 

private plaintiffs; (2) The substan­

tive standard for a violation of 

Section 5 is not coterminous with the 

substantive standard under Section 2; 

and (3) Section 3 preclearance is an 

£21 Pa r te non-adversarial process that 
has no collateral estoppel effect.

Section 5 of the Voting Rights Act 

expressly contemplates a c[e novo action 
such as in the instant case:

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

10 This argument is limited to House District 
#8 and Senate District #2, the only 
districts composed of counties covered by 
Section 5.



47

judgment entered under this 
section shall bar a subsequent 
action to enjoin enforcement of 
such qualification, prerequisite, 
standard, practice, or procedure.
42 U.S.C. § 1973c.

The statute does not limit such actions to

purely constitutional claims or contain any
1 1qualifications barring Section 2 actions. 

Private plaintiffs are entitled to bring a 

subsequent action whether preclearance 

results from "a declaratory judgment 

entered under this section" or from "an 

affirmative indication by the Attorney 

General that no objection will be made." 

Id. Moreover, the language in Section 5

Appellants were so informed by the 
Assistant Attorney General in his April 30, 
1982 preclearance letter to the State: 
"Finally," he wrote, "we feel a respon­
sibility to point out that Section 5 of the 
Voting Rights Act expressly provides that 
the failure of the Attorney General to 
object does not bar any subsequent judicial 
action to enjoin the enforcement of such 
changes."



48

should be viewed in the light of the recent 

amendments to Section 2, in which Congress 

made clear that private citizens have a 

statutory cause of action to enforce their 

rights in both Section 5 covered and 

uncovered jurisdictions. See House Report 

at 32; Senate Report at 42. Plaintiffs are 

therefore not barred from mounting a de 

novo statutory or constitutional attack 

upon a reapportionment plan notwithstanding 

preclearance. Maj or v . Treen, supra, a t 

327 n.1, citing United States v. East 

Baton Rouge Parish School Bd., 594 F.2d 56, 
59 n.9 (5th Cir. 1977).

Secondly, the failure of the Attorney 

General to object under Section 5 cannot be 

probative of whether there is a Section 2 

violation unless the standards under these 

two sections of the Voting Rights Act are 

the same. There is nothing in the record 

which demonstrates what standard the



49

Attorney General used in preclearing House 

District #8 or Senate District # 2 . It is 

particularly ambiguous since these two 

districts were precleared in April 1982, 

two months before the 1982 extension and 

enactment of amendments to Section 2. It 

is manifest, however, that the Attorney 

General did not use the standard of a 

statute yet to be enacted.

In addition, the legislative history 

of the amendment of Section 2 suggests 

that the use of the word "results" in the 
statute distinguishes the standard for 

proving a violation under the Section 2 

totality of circumstances test from the 

Section 5 regression standard for deter­

mining discriminatory purpose or effect. 

Senate Report at 68 and n. 224; 2 Voting

Rights Act: Hearings on S.53, S.1761,

S.1975, S.1992 and H.R. 3112 Before the

Subcomm. on the Constitution of the Senate



50

Comm. on the Judiciary, 97 th Cong., 2d 

Sess. 80 (1982) (remarks of Sen. Dole), 128 
Cong. Rec. H3841 (daily ed. June 23, 1982) 

(remarks of Rep. Sensenbrenner, with which 
Rep. Edwards concurs).

In short, nothing in the statute 

itself, in the legislative history of the

recent, amendment of Section 2, in the case
, 1 2law of collateral estoppel, or in the

There are four criteria that must be 
established before the doctrine of col­
lateral estoppel can be invoked. 1) The 
issue sought to be precluded must, be the 
same as that involved in the prior liti­
gation, 2) the issue must have been 
actually litigated, 3) it. must have been 
determined by a valid and final judgment, 
and 4) the determination must, have been 
essential to the judgment. See generally, 
Wright, Miller and Cooper, Federal Practice 
and Procedure: Jurisdiction § 4416 e"E7” 
seq; Alien vT'HcCurry, 449 U.S. 90 (198077 
The party asserting estoppel has the burden 
of proving all elements of the doctrine, 
especially the existence of a full and fair 
opportunity to litigate the issue. Id. at 
95. Matter of Me r r i11 , 594 F.2d 1064, 1066 
( 51 h” Cir . 1979) ; Kremer v. Chemical 
Construction Corporation. 456 U.S. 461, 481 
(1982): "Redetermination of issues is 
warranted if there is reason to doubt the 
guality extensiveness, or fairness of pro-



51

treatment of other administrative agency

determinations where there is a statutory
1 3right to trial de novo, supports appellant-

cedures followed in prior litigation." Even 
if all criteria are satisfied, relitigation 
may be appropriate because of the potential 
import of the first determination on the 
public interest or the interest of persons 
not part ies to the oriqinal action. Porter 
and Dietsch, Inc. v. F.T.C., 605 F.2d 294, 
300- (7th Cir. 1 9~79 ) c er t . ' den i ed , 445 U.S. 
950 (1979).

This Court has held that a Title VII 
plaintiff's statutory right to a trial de 
novo is not foreclosed by submission of the 
claim to final arbitration, Alexander v. 
Gardner-Denver Company, 415 U.S. 36 ( 1 974) , 
even though the complainant is a party to 
the administrative proceeding. Similarly, 
a federal employee whose employment 
discrimination claims were rejected by the 
Veterans Administration and the Civil 
Service Commission Board of Appeals and 
Review was nevertheles entitled to a trial 
de novo. Chandler v, Roudebush, 425 U.S. 
840 (1976). Moreover, although admissible 
as evidence at the de novo proceeding, the 
agency decision was entitled only to the 
weight deemed appropriate by the court. 
Alexander v. Gardner-Denver, 415 U.S. at 
59-60.



52

s' claim that. Section 5 preclearance 

precludes subsequent litigation of a 
violation under section 2.

The nature of the administrative 

preclearance process itself exposes the 

vacuity of appellants' preclusion argu­

ment. Appellants concede that the Section

5 review was conducted e_x parte as a
14nonadversary proceeding. There was no 

formal hearing consistent with fundamental

Jurisdictional Statement at 16: "In 
fact, these districts were designed by 
counsel and legislative drafters in daily 
contact with the Assistant Attorney General 
and members of the staff of the Civil 
Rights Division." Indeed, other than this 
admission, the record is devoid of the 
reasoning or facts behind the Assistant 
Attorney General's ultimate preclearance 
decision. In his preclearance letters, the 
Assistant Attorney General never even 
mentions House District 8 and there is 
absolutely nothing in the record to support 
appellants' claim that the Attorney General 
determined "that it was in the best 
interests of the black voters not to 
diminish black influence in (Senate) 
District 6 in order to 'pack* (Senate) 
District 2." J.S. at 16-17.



53

no tions of due process, and, unlike

appellants, who were in "daily contact with 

the Assistant Attorney General," J.S. at 

16, appellees could not be and were not 

parties to the preclearance determination. 

Nor were appellees entitled to appeal or 

in any form seek judicial review of the 

preclearance decision. Morris v. Gres- 
sette, 432 U.S. 491 (1977).

The Justice Department Section 5 
regulations provide that a covered juris­
diction must submit voting changes for 
preclearance review, but the reviewing 
official is not required to publish an 
opinion nor set forth reasons for the 
preclearance decision. See 28 CFR §51.41. 
The procedure is so informal that a 
determination may be made without the 
Justice Department taking any definitive 
action at all. If a state submits a plan 
and the Department takes no action within 
sixty days, the plan is presumptively 
approved. Id. A conference may be 
requested by the submitting jurisdiction 
on reconsideration of an objection, 28 CFR 
§51.46, but none is required initially. 
Parties opposing preclearance have no 
formal role in the deliberations.



54

Morris v. Gressette arose in the 

context of a claim that private plaintiffs 

had a right to judicial review of the 

administrative preclearance process. In 

holding that private parties had no such 

right to inguire into the reasoning behind 

the Attorney General's decision, to review 

the process by which he considered the 

change or to appeal directly his determi­

nation, this Court was persuaded that 

Congress had provided, through the statu­

tory grant of a trial de_ novo , for black 

voters who disagree with the preclearance 

decision and who have no other means of 

protecting their interests. Morris v . 

Gressette , 432 U.S. at 506-07. Indeed,

this is directly stated in the only other 

case, Donnell v. United States, 682 F.2d 

240, 247 (D.C. Cir. 1982), which appellants 

cite to support their claim of pre-emption.

Neither Donnell nor Morris v. Gres-



55

s e 11 e supports the appellants' preclusion 

arguments. Indeed, they affirmatively 

recognize that the Attorney General may 

have interests other than the interests of 

minority voters and, more importantly, that 

the voters' interests are explicitly 

protected by the statutory right to a trial 

de novo.
Thus, the District Court properly 

found the Attorney General's preclearance 

determination "has no issue preclusive 

(collateral estoppel) effect in this 

action." (Citation omitted) J.S. at 54a. 

The decision below should be affirmed

summarily.



56

CONCLUSION

Because appellants did not raise any 

substantial question which requires further 

argument, the Court should affirm the 

judgment of the District Court or dismiss
the appeal .

Respectfully submitted

JULIUS CHAMBERS 
*LANI GUINIER 
NAACP Legal Defense and 
Educational Fund, Inc.
99 Hudson Street 
16th Floor
New York, New York 10013 
(212)219-1900

LESLIE J. WINNER 
Ferguson, Watt, Wallas, 

and Adkins, P.A.
951 South Independence 

Boulevard
Charlotte, North Carolina 

28202
(704) 375-8461 

Attorneys for Appellees 
♦Counsel of Record



Hamilton Graphics, Inc.— 200 Hudson Street, New York N.Y.— (212) 966-4177