Reapportionment Criteria

    Qrrr5tloNS PRrstNIED

I. lrr tlris act iun brought under Sect.ion z

of the Votirrrl Rrrlhts Act., the Dislrict

Court found As a nlatt.er of fact that, under

the total ity of relevant circumstances in

North Carolina, ilre use ol the challenged

leqislat ive distrrcts results ilr black
vot ers l,r t hrrr;e tl rstricts traving tess

opporLun i I y tlrarr do other members of tlre

electorate to participate in the political
process and to elect cepceserrtatives oF

their choice.

Were these findings of
erroneous unrler Rule 52(a)?

fact clear I y

II. Does adnr rrristrat ive preclearance of a

leqrslatrve tlrstrrct trntler Section 5 of the

Votinq Riqlrts Act atrsolutely bar private



- ll

parties from litiqating the legal ity of

that district under Sect ion 2 of tlre Votincl

clear stabutoryRights Act, in the face of

language to the cont rary?

- tll -

TABLT OF CONTENTS

MOTION IO DISMISS OR ATFIRM...........

Pao e

1

SIAIr:MINT 0F IHt CASI .,................ 2

I. I'HT DISIRICI COURT'S DT:IERMINAIION
THA T NOR IH CAROL I NA'S GENERAL
ASSTMBLY DTSTHICTS VIOLAIE S 2 OI. IHE
VOIING RI(]HTS ACT IS BASED ON THE
CORRECI STANDARD AND IS NOI CLEARLY
E R R 0 N E 0 tJ s . . . . . . . . . . . . . . . . . . . . .

A.

B.

Ttre Dist
Correet
Ihat the
Quest ion
ResuIt-

r ict Court Appl ied the
St andard in Determining
EIect.lon District.s in

::::. :. ?:::: ::::::::'
Ilre District Court's UItimaLe and
Srrbsirliary Findings Are Not
Clearly fcroltcous ...........

1 . Ihe Cout't Weiqhed the Par-
t icular Circumstances Rele-
varrL to Ihis Action in
Makinq Its Finclings

Ilre District Court's Firrdrng
oF Racially Polacized Vobittq
ls Not Clearly Erro-
lleOUS .. o..... .. .. .. ....

The District Courtrs Ulti-
rnate Finding oF Discrimina-
Lory Result is not Clearly
I c rulteous

14

l4

2

22

't.

t5



lv

II. IHT DISIRICI COURT PROPERLY CON-
SIDERED ALL THE SIAIE'S EVIDENCE . .

III. PRECLEARANCE UNDER SECTION 5
OF IHI YOIING RIGHIS ACT DOES
NOI BAR APPELLEES' CLAIM UNDER
SECII0N 2 .........................

C0NCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Paqe

42

45

56

Alexander v.
415 U. S.

-v

Cases: Paoe

51

Al I en v. McCurry, 449 U. S. g0
(1e80) . . ... o. ... .... .. o 50

ChantlIen v. Roudebush , 425 U. S. 840(1976) ......................
Cooper v. Aaron, )58 U.S. I (tgfg) ....
Donnell v. tJnitecl States, 682 F.Zd

24O (D.C. Cir. 1gtiz) .............
East Carroll Parish School Bd. v.

Marshal l, 424 rJ. S. 616 (tgld) ....
Jones v. City oF Lutrbock, Iex., 727

F .2d t64 ( 5tn cir. 1gB4) ........
Kirksey v. Board of Supervisors, 554

f.2d 119 (5tn Cir. 19ll) .......
Kremer v. Chem ical Construct ion

Corporat itlrr, 456 U. S. 461(l9g?) ......................... 50

Major v. Treen, 574 F. Supp. ,25 (E.D.
La.19Bl)(tncee judge court) ... ,4r40r4g

TABLI. OF AUIHOR T T IES

Gardner-Denver Comparry r,6 (1974) .....o.......

51

45

54

12 ,27

14r15

41



- vl

l,letter of Merril l, 594 F .Zd 1064 ( ttnCir. 1979) ,.......
Honroe v. Bd. of Commissioners, ,g1u.s. 45O (tgea) ... .......
Horris v. Gressette, |tZ U. S. 491(1977) ...o...................
NAACP v. Gadsden Co. SchooI Bd.

691 F.2d 978 (tttn cir. 1982) ...
Porter and Dietsch, Inc. v. F. I.C.,

605 r .2d 294 ( 7tn ci r . 1979) ,cert. denied.frTu.f-t5ll-(tglg) . . . . . . . .

Pullman-standard v. Swint, 456 U.S. 27t(tgaz) ............. .......
Rogers v. Lodge, 458 U.S. 613 (tgAZ) ...
Rybicki v. State Bd. of Election of

Illinois, i74 F. Supp. 1147 (t.D. II
198r)(tnree judge court) .........

Srann v. Charlotte-Mecklenburg Bd.
of Ed., 105 F. Supp., 1291 (l{.D.N.C.
1969) aff,d, 402 tJ.S. 1 (1971)

Unitecl States V. East Baton Roqge
Parish School Ud. , 594 F .Zd ,G ( 5tn
Cir. 1979) ...........:. ..........

United States v. Harengo Co. Comm., l.j1
F.2d 1546 (11th Cir. 1es4) ......

Velasquez y. City of Abilene Iex
F.2d 1017 (5tn cir. 1984)

Paoe

50

45

5t ,54

27 ,4'.1

51

15

15rt2

T.
14r40

4B

14, 40

14r15

44

., 725

Jurisdiction $ 4416 et Sgg. 50

- vlt -

Pao e

40

oaaa lm

oass iml--.--.

15

5'

5t

Whi te v. Regesl-er , 412 U. S. 755(191)) ..... .. o. o..... 1zr1rr41 ,42

Zimmer v. McKeithen, 485 F,2d 1297
(5ttr Cir. 1gl)) ............

Const itut itrrral altcl Statulorv Provisions

U.S. Const. arnend. XIV ...........

Vot ing Ri ght s Ac t Amendment o f 1982,
Pub. L . No. 97 -2O5, 96 StaL .
1r1 (1gB?) ...... t.......

Voting Rights Act of 1965, 42 U.S.C.
$ tg7](c) .....................

Rule 52(a) f.n. Civ. P. .o.........

28 CFR $ St.zrt ....o.........,....

12 ,27

28 CFR $ Sr.0r

L erl i s l a t i v e H i s t o c y

S. Rep. No .
Sess.

9l -417 , 97th Cong. r?d(1e82) 9r10r1r)17,

H. R. Rep. No.'lst 5ess.

0ther Aut hor r t

t4r4l,4g ,49, 50

97 th Cong . ,
I ,48

,2

97 -227 ,
( 1eB1 )

les

l{r.ight, Miller and
Pract ice and

Cooper, fglglEf
Pcocedure:



-1

No. 8J-1 960

IN THT

SUPRIMT COURT OF THE UNITED STAIES

0cI0BER tERM, 198'

RUfUS L. EDMISIEN, et eI.,
Appellante,

v.

RALPH GINGLES, et al.,

Appellees.

0n Appeal From the Unlted Statee
District Court For tha Eaatern

Dist r ict of North Carollna

MOIION tO DISMTSS OR AFFIRI{

Pursuant to Rule 16.1, Appelloea,

Rall:h GingIes, el al.1 mova that the Court

dismiss t.he appeal or affirm tho judgment

below on tlre ground that the questions on



-2

rhich the decision of the

so unsubst ant ial as not

argument.

Focty of North
t ies are covered
Vot ing Right s AcL .

caae depends are

to need further

Statement of bhe Case

Appellees filed this action on Sep-

Lember 16, 1981, challenginq the 1981

apport ionment of both houses of the NorIh

Carolina General Assembly (,'the General

Assembl y" ) on the grounds, inter al ia, t hat

the apportionments h,ere illegal and

unconst itut ional in that : ( 1 ) each had been

enacted pursuant to prov isions o f the Nor lh

Carol ina Const i tut ion which were required

t o be but had not been precleared under

Section 5 of the Voting Riqhts Act of 1965,

as amended, 42 u. S. C. S 197Jc'(,,$ 5 of the

Carolina's
by Sect ion

1 00 coun-
5 of bhe

-t

Voting Riqhts Act" or "Section 5,r)i and (Z)

the use of mul t i-member districts illegally
subrnerqed minor ity population concentra-

l.ions arlrl dilrrted minority voting strenqtl'r

in violaticrn of t.he Constitution and

Sect ion 2 of L lre Vot inq Right s Act of 19611

asi arnended , 42 U. S. C. $ 1971 .

After tlre Complaint was filed, the

State of Nolth Carolina submitted the

prov is i ons o f the North Carol ina Consti-

tut ion, which prohib it div iding count ies in

the forrnation of a Iegislative district,

lon prec I earance under Section 5. The

At t orney GeneraI, in a letter signed by

Witliam FJratllorcl lleynoldr;, objecLed to the

provisiorrs, frrrclinq tlrat the use of large

mult i-rnernber districts t'necessar i I y

suhmerqes (-'ognizable minority populat.ion

concentrations into lartler white elec-

lorates." .lurisdictional Statement at 6a,



-4

Ihe At torney General , act ing throrrq;lr

fleynolde, also found the 19g1 House, Senate

and Congresaional plans, as weII as Lwo

subsequent House plans and one subsetluerrt

Senate pIan, to be racially discriminatory.
Despite warninqs from special counsel,

b.lack citizens. groups, and various
legislators lhat the use of multi_member

districts could result in impermissible
di I ut ion of black cit izens. vot inq
strenqth, the General Assembl y cont inued to
use this method in the House and in the
Senate. At an B day trial in July 19gl
be fore al I three judges, appel lees chal -
lenged six of the multi-member districts,
fi v e in t he House and one in the Senat e.
Appe I lees aI so chal lenged the con figurat ion
oF one single member Senate Dist rict. Five
of the challenged districts consist.

-5

entrrely of'(.ornties rr,t r:overed by Section
5 artcl, ttrrlrtrfotl-:, were rrot srrbject to the

At.torrrey llenera.[ | s rev iew.

0n Jarruerry 27, 1984, the Honocable J.

Dickson Plrillips, Jr., writing for the

unar)irrrotrs l)rslrrct c.urt, Founct that black
citt.ze,ls of' Norttr Carolina t1o not have an

equal oppoctunity to participate in the

St aters po I i t ical sysIem and that uae of
tlre challengerJ Ieqislative districts
illegally rnirrirnizes their opportunity to
elect represerrtatives of their choice. Ihe

Di st r ict Cour L made extensive and met icu_

Ious f ind inqs ilrat ilrere currently exists:
a disparity between black and white voter
registcation which is a legacy of past

intentir-rnat dt,slr.anchisement I severe socio_

economic irrequities which result from

pasb discr irnrrrat iorr antl which give rise to

a com,no,lalily of rnterests within geo_

graplrically irte.l if iatlte hlack com,nunities;



-6

minimal electora.l. success of black candi-
dates; the uae of racial appeals in cam-

paigns; and e persistent failure of most

white votere to vote for black candidates.
In short, the Court found that., while there
has been aome progress, the gap between the

ability to participate of white and black
voters remains subsLantial.

Based on these finding the District
Court entered a unanimous 0rder which
declared that the apportionment of t.he

General Assembly in six chal Ienged multi_
member diatricts and one single member

disLrict violate Section Z of t.he Voting
Rights Act, and enjoined elections in those

dist r ict s pending court approval of a

dist r ic t ing plan which does not v iolate
2Section 2.

Appellees did not chal-lenge alI
mulLi-mernber districts used by the itar.enor did the District Court rule that theuse of mul ti-member districts is Der seillegal. Ihe District Court,s 0rde. tTE'r66.

-7

Appellarrl s, pet it rurr for a stay uf the
0rder was unanimousl y denied by the

DistricI Court, arrd h,as strbsequently denied
b y Ch i e f Jus t ice Burger r on February 24,
"1984, and by t he f ul I Court on March j )'t

I 984.

unhouclred l0 mul t i-melnber diatricts in the
House and 1 I in the Senate. Ihe Dist rictCourt's 0rder ditl not af fect 4g of NorthCarolina's 5\ House of RepreBentalive
Dist r icl-r; and dicl not af fec t 27 of NorthCarolina's 29 Senate Districts.

tly subsequent orders, the District
Court approved the SEatets proposed
remedial cl ist-rict_s lor six of the sevenchallenqed rJistricts, and primary elec_tions have been held irr lhose rlistricts.
The l)istrir:t Court tras not actetJ on the
Delendarrts, proposed remedial apportion_
ment of one district, forrner HouseDistrict No.8, penclinq preclearance of
de fendant s' proposal under Sect ion 5,



-B

ARGUMENI

I. IHE DISIRICI COURT'S DEIER-MINATION THAT NORIH CARt)LINA'S
GENERAL ASSEMBLy DIsIRIC ts vlor_nri$z oF THr vorrNG RTcHTS ncr iiBASED ON THE CORRECI SIANDARD ANDIS NOI CLTARLY ERRONEOUS

A. Ihe District Court Appliedthe Correct Standard in DetermininqIhat the Election Districts in- qr""-Eion Have a Discrirninatory Resuli
Section Z of the Voting Riqhts Act h,as

amended in 1982, by the Vot ing Rights
Amendments of 1982, 96 Stat . 111 (June 29,
19BZ), to provide that a claim of unlawful
vote dilution is established if, r,based on

the totality of circumstancesr,, members of
a racial minority 'rhsve less opportunity
than other members to part icipate in the
pol i t ical process and to elect repre-
sentatives of their choice.,, 42 U.S.C.

$tlZl, as amended. Ihe Committee Reports
accompanying the amendment make plain the

-9

congrcss lonal intent to reach election
plans that rninimize the voting strength of
rninority voters. S. Rep. No. 97-41]-,97th
Conq., 2d Sess. at ZB (1982) (hereafter

"Strlrale Reptlrt', or ,'S.Rep.,,); H. R. Rep.

No. 97-'227r 97ilr Conq., tst Sess. at 17_18

(tyAt ) (hereaftcr rrHouse Report,,).4

Ihe Setrat r-. Report , at page s 27 -10, set s

out a tletai led and specif ic road map for
the application ol ilre amended Section Z.

hlhen called upor.t to apply the statute,
as amended, to a claim of unlawful dilu-

Appel I ant s assert that the leqislative
history of the 1982 amendments is unclear
because there is no conference committee
report. J. S. at B. However, as the House
unarrirnously adopted S.1992, which had beenrcporterl orrt of the Senate Committee on
tlre Jurtir.rary arrd aclopted by the Senate,
Ihere wils ,)o lrcetl for a cortference
cotmnittec oc for a conference committee
report. See .1.S. at 9a, n.7. In fact
tlrere wr,s riil?r:rrfIict between the intentof the House anrl of the Senate. TheSenatc atloltted substitute langt,age tospell out rnore specifrcally the standard
wlriclr tlru' llouse nrearrt to codi f y. S. Rep.at 27.



- 10

t ion, the f ederal courts h,ere directed by

Congress to aasess the interaction of the

challenged electoral mechanism with the

relevant factors enumeraIed in the SenaIe

Repor t at

It
Sect ion

28-29.

is apparent f rom blre anal ysi s o f
2 contained in the Memorandum

0pinion and from the detailed assessment o f
the facte that the District Court. under-

stood and properly applied its Congres_

sional charge to bhe facts o f this case.

The actual st andard appl ied by the

DisIrict Court is embodied in its Ulbimate

Findinge of Fact:

1. Considered in conjunct ion with thetotality of relevant circurnstances found by
t he cour t -- the I inger ing effects of
sevent y years oF olficial discrimination
against black citizens in matters touchingregistration and voting, substantial tosevere racial polarization in voting, theeffects of thirty yeara of p.rsi"tent
racial appeals in political campaigns, arelat ivel y depressed socio-cconomic status
resul t ing in signi ficant degree from acentury o.F de_jure and g" facto seqreoa-
tion, and -TFe continuTt!-??-fect'oF' a

_ 11

majorit y vol-c rcqullctnent -- ilre creation
o f' each r.r f t he mtrl t i-member tJistrictsclralleltqed irr t.lris action results in thebIack reqistered voters of that districtbeing submerrlerl as a vot.irrg minority in thedi st n ict ancl thereby naving less oppor-ttlrit.y l-han do otlrer members of theelectorate ltr participate in the political
proL-ess and to elect cepresentat ives ofthtrlr chuice.

2. Cr:nsiclered in conjunct ion with thesatne circurnslances, the creation ofsirrgle-member Senate District No. Z reeults
in the black cegistered voLers in an areat:overed by Senate Dietricta Nos. 2 and 6Iraving Lheir vobing strength diluted byfracturinq tlreir concentrations into twodisLricts in each of which they are avot irrg minority alrd in conaequence have
less opporttrniLy than do other members ofthe elector.aLe to participate in thepol iL ical proL.ess and to elect represen_
tatives of theic choice. J.S. at 51a-52a.

AppeIlants assect tlrat ,,the rlistrict

corlrt erretl by equatilrg a violation of
SecLiorr 2 with the absence of guaralrteed

J)roportional represent.ation.,r J.S. at g.

This sLatement, suppor[ed only by a

sent.ence f'ragrnent fr.orn the opinion, J.S.

at 9-10r gfussly dislorta the standard

actually usr:tJ by the District Cour[, and



- 12

lgnoros the extensive discussion by the

Diat rict Court of the meaning and proper

appl icat ion of Section Z of the VoIing

Right s Act. J. S. at Ila-1 ga. In bhat

discussion, the District Court exp-ticitly
stated its interpretation of bhe standard

to be appl ied and the factors to be

considered:

In determining whether, ,rbased
on the totality of circumstancesrr,
a st aLe's electoral mechanism does
6() "resuIt" in racial vote
d i I ut ion, the Congreas intendedthat courts should Iook to theinteraction of the challenged
mechanism with those historicil,
social and pol it ical factorsqenerally suggested as probative ofdilution in l{hite v. Reqester andsubsequentfy@ the
fo rmer Fi fth Ci rcuit in Zimmer v.
Hc Ke i t hen, 48 5 F .Zd 1297 f5TEE.fq-TiT-fe; banc),aFf ia on orherr_;rounds sub nom.ffi
FETiIffi- siE'6-or -6?-aro y. -T 6.:f
Ihese typically includer per the
Senate Report accompanying thecompromise version enacted as
amended Section Zt

- 1i

Itfrereafter the District Court listed the
factors enumerated at pp. ZB-29 of the
Senate Report. .l J. S. at 1Za_1)a.

Ihe Dist r ic.t Count tJid not ignore
Wlrite v. Reqester, 412 U.S. 755 (lll11 , and

it-s l)rr)r.leoy, ,oc did t.l.re District Court
inLerpret ilrose caser; to require pro-
po r t i olra I represenLat. ion. See J. S.

14a-15a. As tlre Court explicitly said,
" I T ] he fac t t hat bl acks have not been

elected under a challenged districting plan
in numbers propor t ional to their percentage
oF the population Idoes not establish that
vote dilutiorr lras result.ed]... J.S. at l5a.

In sum, the Dist rict Court examined

each fact or speci Fied by Congress in the
Senate Repoct and, without limiting its
assessment to just one factorr os appel-
larrts cJo, assessetJ them as a totality.5 Ihe

Ihe Courts of
the Cotrrt below,
amerrrletl Sect ion to

other.circuits, as did
lrav e ilr t erp ce t ed t hereqrrire the trial court



- 14

Dlatrict Court clearly engaged in the

Congreasionally mandated analysis and

appl ied the proper s t andard.

B. Ihe District Court,s Ultimate
and Subsidiary Findings of Fact
Are Not Clearly Erroneous

1. Ihe Cqurt Weiqhed The pact icu-
lar Circumstances Relevant To

r rno rngs

Since the District Court appl ied the

proper standard to the facts before it, the

real quest ion raised by appellants is
wheiher the three judges properly weighed

to examine the factors listed aL pages
28-?9 of t.he Senate Report and, consider-
ing the totality of the circumstances,
determine whether the challenqed election
method violates Section ?. U.5. v.
Harengg_ County Comm., 7r1 f .TTTTWgB4); Jones v. City
of Lubbock, 727 F.2d ,64,

; Velasquez v. City of Abilene
Le_l ., 725 F. I futt-t) (>rn ulr.
i-pa4l; Rvbicki v. st ate Bd. ql E lect ions,
574 r .
1 9Bl ) ( tnree j udge court ) .

- 15

tlre volurninour; evitlence. l{hile the judges

lreacil eiqtrt t-lays of testimooyr examirred

hurrtlreds o[' tJocurnents, and made thirty-

three pa(lrrr; of factual findings, the

al)pellant s ll;rse l-lreir argument, in essence,

on ot'tc far:t: the etectoral suecess of a

few black r:anrlidates in 1982. The gues-

t ion thus taised is whether, in assessing

the totatity of circumetances, the District,

Cour t rs j udqrnent as to lhe proper weiqht t.o

give to this fact is clearly u"ao,,u.rt,r".'

Rule 52(a), F.R.Civ.P., provides that
neither Llre ult.imate nor the subsidiary
findinqs of fact of the District Court may
be reversed unless t,hey are clearly
errorleous. Roqcrs v. Lodqe, 458 U. S. 611,
622-6?1, 627--(7982 clearly erroneous
sLarrdard applies to finding tha! an at
large vot j nq sysLem is being maintained
for a discriminatory purpose and to the
underlying subsidiary findings); Pull-
man-Starrctard v. Swint, 456 U.S.7lT
281 -?9, (1982) , See al so Velasouez
v. Cityof 4r-rilene, IerlTZST7d mTrTfffi-v. 

City of Lub'bock.
727 F.'2tl t64, ,



- 16

Ihe District Court analyzed each of
the fac t o rs suggested by Congress to

determine its bearing on the abi.l iLy of
black cit izens to elect candidates of ilreir
choice to the General Assembly. 0ne lactor
is the extenL of black elecIocal success.

t{ith regard to tlrat factor, it is plain
t.hat be f ore this act ion was commenced in

1981, a nominal number of blacks had been

elected to the General Assembly. The

Oietrict Court discussed the 19BZ elect ions

and found them to be uncharacteristic.
After examining black electoral successes

and faiIures, Judge Phillips concluded:

I f ]ne success that has been
achieved by black candidates to
date is, standing alone, too
min imal in total numbers and too
recenb in relation to the long
history of complete denial of any
elect ive opportunities lo compel
or even arguably to support an
u I t imate finding that a black
cand idate I s race is no lonqer a
s igni ficant adverse factor in the
pol it icat processes of the state

- 17

e i llrrlr (lellBral I y trr spe_
cif ically irr the areas of the
clral lelrr;ed t1r st r lcts.

.1. S. at

t-t.27.

l7a-l8a. Sec also, J.S. at )7a

Th i s conc I us ion h,as considered along

wttlr f inclirrgs on the other factors orruoar_

aLed in the Senate Report. These are

siurnmarized as fol.tows:

a. Ihere is a current disparity in
black and wlrite voter registration resull-
ing lrom the tJirect clenial and chilling by

Lhe State of registration by black citi-
zens, whic-h extended officially into the

1970's with the use of a Iiteracy test and

anti-single shot voting laws and numbered

seat requirernents. The racial animosities

arrd resistence with which white eitizena
have responded to attempts by black



- 18

citizens to parlicipate effectively in Lhe

political process are still evident today.

J.5. at 22a-26a.

b. l{ithin each chal lenged districb
racially polarized voting is persistent,
severe, and statistically significant. J.S.

et )8a-)9a, 46a.

c. North Carolina has a majority

vote requirement which exists as a con-

tinuing practical impediment to the

opportunity of black votinq minorities in

the challenged clistricts. J.S. at 29a-J0a.

d. North Carol ina has a long history
of public and private racial discrimination

in almost alI areas of life. Segregation

laws were not repealed until the late
1 950' s snd earl y 19 70's. Publ ic school s

were not aignificantly desegreqat.ed until
the earl y 1970rs. fhus, blacks over l0

years old atbended qualitatively inferior
Begregated schools. Virtually all neigh-

- 19

borhoods remain racially identifiable, and

past discrirnination in ernploy,nent continues
to d isat'lavantaqe blacks. Black households

are three tirnes as likely aa white house_

holds l"o be beloh, povert y level. The lower
socio-ectlrrorrric status of blacks results
from the lorrq lrrstory of discrimination,
t;ives rise to special qroup irrterests, and

current I y hrrrtlers the group's ability to
parlicipate effectively in the political
process. J. 5. at 25a-29a.

e. Frorn tl're Reconetruetion era to the

present t ime r appeals to racial prejudice

against black citizens have been used

effectively as a rneana of influencing
vot.ers irr North Carolina. As recently as

19Brr political campaigll tnaterials reveal

an unmistakable intention to exploit white
voLers' ex ist.ing racial feacs and prej-
urlices arrcl to r-reate ,)ew onea. J.S. at

)1a-'5?a.



-20

f. Ihe extent of election of blacks

to public office at. all IeveIs of qovern-

ment is m inimal , and black candidates

cont inue to be at a disadvantage. l{ibh

regard to the General Assembly in particu-

lar, black candidates have been signifi-

cantly Iess successful than whites. J. S.

at 1)a-)Aa, l7a-lBa.

g. The State gave as its reason for

the multi-member district.s ibs policy of

leaving counties whole in apportionirrg tlre

General Assembly. However, when the

challenged apportionments were enacted, the

State's pol icy x,as to divide counties when

necessary to meet population deviation

requ i rements or to obtain Sect ion 5

preclearance. Many counties were divided.

Ihe pol icy o f div iding counties to resolve

some prob Iems but nol others does not

justify districting which results in racial

Yote dilution. J.5. at. 49a-50a.

_ 21

The l)ist rict Court included the extent
to which blacks trave been elected to office
as "one circulnsIance,, Lo be considered, 42

U.S.C. $tgZJ(b), mac,e an intensely local
and deLaited appraisal of all of the

relevarrt r:irctturst ances, ancl determi.lred tlrat
tlre challenged clitt.ricts have a discrimi-
natory restrlt.

For tlris Court Io revcrse the District

Court's ultimate filrdings would requice

t.his Court Io f ind (t ) that the Districl
Couct.'s asseBsment of pre-1ggZ electoral
success was u-Iearly erroneous; (Z) that the

DistcicL Court's assessment thal the lggz
e lect ions were at ypical h,as clearly erro-
neous; and (l) that, in weighing bhe

totality of the ciccumstances, the relative
we iqh t g iven by the Court lo one post

l i t i gal ion elect ion year raa c.learl y

erruneorls.



-22

2. The Disbrict Courtrs Findino
of Racially Pola@
ffieous.

Appellents assert t.hat the electoral

Bucceas of aome blacks in 19BZ precludes

the Dietr ict Court from finding severe

racial ty polarized voting. This is tlre

only subeidiary finding appellants chal-
7

lenge.

In finding voting to be racially
polarized, the District Court enqaged in a

detai Ied analysis of elect ion returns from

each of the challenged districta extending

ovor aeveral elections, supporled by the

Iestimony of numerous lay witnesses and

Although appellanbe challenge this
finding as an error of law, the finding of
racially polarized voting is ona of fact
covered by RuIe 52(a) . Jones v. Lubbock,
727 F.2d at J8o. Appeffi
limit thie challenge to t,hoae areas not
covered by S f. They do not d i scuss fac t s
from either House Di at r ic t No . I ( l{i I son ,
Edgecombe, and Nash Counties) or Senate
District No. 2.

-2'

expert test ilnony regarding avery election
for the General Assembly in which there had

been a b I ack candidate in the challenged
rnulti-member districts for the three
e Iect ion years preceding the trial. J. S.

lBa-39a. Based on its exhaustive analysis

o f t.he ev idence, the Dist rict Court found

t.hat" racially polarized voting waa aevere

and persistent.

Appellants erro,teously claim that the

District Court deEermined raciel pol.ari-
zat ion by labeLing every election in rhich
less' than 50% o f the whitee voted for the

black candidate as racially polarized. J. S.

at 17. AI though it is true that no black
candidatB ever managed to get votes from

more than 50?6 of white voiers, thie is not

the standard the District Court uaed.

Instead, the District Court examined

the tneasucement. of racially polarized
votinq to detennlne the extent to which



-24

black and rhite votere vote differently
fron esch other in reletion to the race of
the candidabee. J.5. at )9a, n.29. The

Dist r ict Court t s assesament can be sum-

marized in three findings:

B. Ihe ev idence shows pat terns o f
recial pol ari zat ion. fhe Cour t found :

0n the averager 81.72 of white voters
did not vote for any black candidate
in the primary elect ions. In the
general elections, white voters almost
always ranked black candidates either
last or next to Iast in the multi-can-
didate field except in heavily
Democratic areaa; in these latter,
white voters conaistently ranked black
candidatos Iaet among Democrabs if not
last or next to last among all
candidatee. In fact, approximately
tro-thirds of white voters did not
vote for black candidates in general
olect ione even aft er the candidate had
won tho Democratic primary and the
only choice waa to vote for a Republi-
can of no ooeo BIack incumbency
al leviated the general level of
pol ar i zat ion revealed, but i t did not
el im inate it. Some black incumbents
x,ere reelected, but none received a
majority of white votee even when the
election was esaentially uncontested.

-25

J.S. al 4tla.

b. Itre correlat. ion between the raca

o f the voter and the race of the

candidate voLed for waa statietically
signilicant at t.he .00001 level in every

e Iec h. ion ana I y zed. Al Lhough corralet ion
coefficient.s above an abeolute value of
.5 are relatively rare and thoae above

.9 are ext remely rare, all correletlon
coefficients in this case were between

.7 and .98 wit h most above .9. J. S. at

lBa-l9a and n. ]0.

c. In aIl. but two electiona, the

b I ack cand idate Iost among nhite voters

--that ia the results of the election
would have been diflerent if held only

in the white cornmunity than if held only

in the btack community. .J.S. at 19a-40a

anrJ n.]1. Ihe District Court used the

Lerm 'rsubstantively significant,r in
these ciccurntrtances. Appel lante poeited



no

-26

al ternat ive definition supported

either by case law or political science

literature. J.S. at 40a, n.)2.
Appel Iants offered no stat ist ical

analysis which contradicted the conclu-

eions of the District Court. Ihey did

not queetion the accuracy of the data or

assert that the methods of analysis used

by sppel lees' expert were not standard

in the literature. J.S. at lBa n.29. In

fact, appellanta conceded that the

pol ar i zat ion of the voting waa stat is-
t ical I y signi ficant for each of the

elec t ions anal yzed.

NonethelesB, appel lants contest the

District Court'e finding of racially
polarized voting citing examples from

only one post-litigation election year,

1982. Thie is particularly inappro-

priate, as the District Court cr:ncludod

that 1982 was I'obviously aberrational,,

-27

and that whether it will be repeated is
shee r spec u I ab ion. Among the aberra_

t iona I f act ors h,as the pendency oF this
lawsuit arrd ttre o,le time help of black
candidates by white Democrats who wantetl

Lo defeat single member rlistricts. J.S.
at J7a. Tlris skept,ical vier of post_

I it igat ion electoral success is sup-

ported by t he leqislative hiatory oF the

Vot ing Rights Act altd the case law.

Senate Report at 29, n.115; Zimmer v.
McKeithen, 485 F.Zd 1297, 1rO7 (5tfr Cir.
197, ) ( en banc) aff'd on other qrounds

sub notn East Carroll parieh School Board

v. Marshal I , 424 U. S. 616 (1916) i NAACP

, 6g1 F.2d

at 981.



-28

In addition to being drawn only

fron post-litigation elections, the

axsmples given by appellants are

nieleading and are baken out of conbext.

For example:

( a) Appellants point out that in the

1902 i'lecklenburg House primary r black

candidat.e Berry received 5O?i of the

white vote. The District Court noted

this but stated that it Idoes not alter
the conclusion thet there is eubstantial

recially polarized voting in l.{ecklenburg

Count y in primaries. There were only

aeven rhite eandidates for eight

pos i t ions in the primary and one black

cand idat e had to be elected. Berry, the

incumbent chairman of the Board o F

Educat ion, ranked first amonq black

votera but seventh among whitBS.I J.S.

at 42a.

-29

Ihe other black candidate, Richard-

son, was canked last by white votere in
the prirnary but second, after Berry, by

blacks. ln the general elect ion,

R icha rd son was the onl y Democrat who

lost.

Similarly, in the 1982 ilecklenburq

Count y Senat e race, the black candidate

who was auccessful irr the primary waa

the only Dernocrat who Iost in the

general election, ranking fi.rat among

hlack votere but eixth out of aeyen by

white voters for four seatB.

b. Appellants point out hhat black

candidaLe Spauldinq received votes from

47lo of white voters in Ihe 1982 general

e-lection in Durham CounIy. Ihey neglect

t o po i n t out there was no Repuh l ican

oppos i t ion in t.hat elect ion, and t.hat a

majority of white vot.ers therefore



-t0

failed to vote for the black incumbent

eY en 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 h,ere only two white candi-

dates for three eeats ao at Ieast one

black had to rin. As the District Court

noted, "Even in this situation, 6r?6 of

rhlte voters did not vote for the black

incumbent, the elear choice of the black

votofS.r' J.S. at 44a.

(c) Appellants point out that in

Forsyth County two black candidates in
1982 were successful but fai I to note,

aa the District Court did, thal white

voters ranked the two black candidates

ceventh and eighth out of eight candi-

detes for five seate in the general

clcct ion rhile black votere ranked them

first and second. J.S. at 41a.

- ,1

(d) As another example, rhile noting
thal black elected incumbents have been

re-elected, appellants f ail t,o note that
white voters almoat always continue to
rank t lrern I ast and that hlack appointed

ineumbents have uniformly been defeatecl.

Ihe bhrec judqes who heard the evi-
dence considered each of the facts rhich
appel Iants point out, t.ogether rith the

surrounding circumetancea, and con-

cl uded that these piecee do not alter
the conclusion of severe and pereietant
racially polarized voting.

Appel lants also assect that ra-
iiatty polarized voting ie probative
o f vote di lut ion only if it always

causes blacks to Iose. In fact, in ?1

o f l-he )Z e I ech ion cont ests anal yzed in

wh ich t he b l ack candidate received

subst ant ial black support, the black



-12

candidate did lose because of racial

pol ar i zat ion in vot ing. That is, he

loat even though he waa the top choice

of black voters because of the paucity

of aupport among white voters.

Appellants assert thst whites must

uniformly win for racially polarized

vot ing to be probative. They support

this argument bY citing @
glj!.!l , I caae dec ided under the purpose

atandard of the Fourteenth Amendment of

the Un ited Stat.es Constitution.

AppeIIoee do not believe that Roqers v.

Lodqe etands for the proposit'ion boldly

aaserted by appellants, but the Courb

need not conaider, in the conlexE of

thie caae, whether the complete absence

of bl ack electorel auccess is necessary

to raiee 8n inference that an at Iarge

system is being maintained for a

discriminatorY PurPose.

-,,

Ihe inslant case h,aa decided under

the Vot ing Right s Act , and the atatutory
language of Section 2 specifies that a

violation exist,s if black citizenE have

"less opportunity,. to elect representa-

t ives of their choice; it le not limited
to situations in which black candidates

have absolut ely no chanco of being

elected. 4? lt.S.C. $ 197t(b). Racially
pol ar i zed vot ing can give riae to this

unequal opport un it y, even i f it does not

cause b I ack candidates to loae 6very

single elect ion.

Appellants' argument is, in 6a-

sBnce, Lhat any bl ack electoral auc-

ceas necessarily defeats a Section z

claim, an argurnent which defies the

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

n.115, and discussion at. p. !5, infra.



-14

As the Cour t noted in

57 4 F. Supp . ,2, ' ,r9
( three i udge court ) :

Ma ior v.
--I-

(E.D. L8.Iroen

19Sr)

Nor doea the fact that sevoral
blacks have gained elective
office in 0rleans Parieh detract
from pl.aintiffa' thowing of 8n
overall pattern of Polariza-
t ion. . . Racial bloc vot ing , in
the context of an electoral
stcucture wherein the number of
votes needed for election exceeds
the number of black votersr sub-
atantially dimin ishes the
opportunitY for black votere to
elect the candidate of bheir
cho ice .

, The District Court considered aII

o f lhe ev idence, including t'he f act's to

rhich t.he appellanbs allude, and determined

that rac i.aIl y polarized voLing ie severe

and persistent in the districts in ques-

tion. Ihis finding is not clearly erro-

neou8.

,.

-r5

Ihe Di st r ict Cour t . e Ul t imate
r r no lnq or ulacrlmlnatorv

naouE

Ihe task of lhe three Diatrict Court

judges was to examine hietoric and current

racial and polilical realitiee in North

Carol ina, to debermine if the challenged

legislat ive dist ricts operate to deny black

c i t i zens an equal o1:portunity to elect

rcpresentat.ives to the Gelreral Aasembly.

Ihe j udqes be I ow enqaqed in an intensel y

local appraisal tlf these lacLors and

appellants ask Lhis Couri to cule that
their deterrninetion was clearly erroneous.

Appe I lant s do not clral lenge the lower

cour t's find ings on six of seven Sect ion z

fac tors , and , as discussed in part IB( 2 ) ,

supra, the severrth subsidiary f Lnding, that

vot ing in North Carol ina is racially

polarlzed, is not clearly crroneous. Ihus,

tlre quesl ion is wheilrer the Dietrict Court



-16

properl y asaeBsed the total ity of circum-

stanceB. In bhe Statement o F lhe Case

appellants recite random black electoral
successes and t hen imply, without saying,

thet under bhe circumstances, a finding of

diecriminatory result is erroneous because

it is tantamount to a requirement of

proportionel representation.

As raa discussed in part IB( 1) , Sjg-r-
the Dietrict Court did not ignore the

election of blacks in its weighing of the

facts. Rpther, after examining the ext.ent

of minority electionp the District Court

found, in addition to minimal election of

blacks to the General Assembly before this

I it igat ion $,as initiated, that in the six

nult i-menber districts in queslion, black

cand idates who won DemocraLic primaries

between 197O and 1982 were three times as

-r7

I ikely bo Iose rn general elections aa were

t.treic white Democratic counterpacts. J.S.
at lla-14a.

ln arltlition, the District Court found

that trlacks hold only 9Z of city councIl
seats (rnarry fcorn majority black election
disLricts); 7.t% of the county comrnission

seaLs; 0oi of sheriFf .s offices; and 1% of
t.lre of lices of ttre CIerk of Superior Court.
No bl ack has bcen elected to statewide
office except three judges who ran unop_

poaed as appo irrted incurnbents. No black
lras bt'len elected to the Congreaa of the

United States as a representative of ilria
Bstate. J.5. aL )3a.

0n a counLy by county basis appellants
al so paint a Iopsided picture. In Forayth

Count.y appel lants epecif y isolated in_
stances of electoral success but ignore

Nort lr Carol ina is ZZ.4r. hlack in pop-ulation.



l8

electoral failuree such as 3 ( 1 ) the dofeat

o f appo inted black ineumbents which

resul ted in no blacks being elecbed to the

House o f Representat. ives from Forsyth

County in 1978 and 1980r years in which aIl

rhite Democrats were successful; (2) the

do fe a t, in 1 980 o f the bI ack who had been

elected to the County Commission in 1976

rhich reaul ted in a return to an aII white

County Commiseion; and (l) the defeat in

1978 and 1980 of the black who had been

olected to the Board of Educat ion in 1976

returning the Board of Education to its

prev ioue al I white statue -

I n each o f these inst ances the ev i -

dence ahowed that black Democrats were

defeated when white Republ icans did well t

but rhite Democrate won conaistentlyr even

in good Rapublican Year8.

-19

In additionr aPPBllants do not mention

that House District No. Br which is ,92

bl ack in populat ion and has four repre-

sent at i v es, has never elected a bleck

repcesent at ive, J. S. at )6a, or that

Mecklenlrurg Ctrunt y, which, with eighl House

seat s and fouc Senate seats , is the I argest'

distric-t in tlte Ceneral Assembly and which

is over '2516 black in population, has this

century electetJ only one black senator

( from 191 5'1979) and one black repreaen-

tative (in 1982, after bhis Iawsuit waa

filed). J.S. al 14a.

In Mecklenburq County, as in Forsyth

County, b I ack Democrat s who were auccessful

in Democrat ic pcimaries, in the House in

1980 and lgBZ anrt in bhe Senate in 19821

h,ere the only Democrats to Ioee to white

Republicarls. No white Democrat lost to a

9
Republican in tlrose elections.

lhus, this case is in no way sinrilar



-40

Rather than requiring guarant'eed

election, and rather than simplistically

conaidering erratic examples of electoral

success , t he Dist rict Court foI lowed the

statutory mandate by conaiderinq black

elecIoraI success and failure aa one

factor in the totality of circumstancea

leading to its conclusion of discriminatory

result. 42 U.S.C. $ tgTl(b).

0ther courts have not required the

complebe abaence of black electoral succeas

in order to Find a violation of Section 2.

United States v. Marenqo County Cornmission,

7t1 F.zd at 1572; @' 574

F.Supp. at t51-152i Rybicki v. Sbate Bd. oj

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

Ihia interpretation of the amended $Z is

conaistenb with pre-amendment case law

to t{hitcomb v. Chavis, 4O3 U.5. l?4,
150-mblack defeat was
caused by Democrabic Party defeat, not by
race.

- 41

whlch held that oome black electoral
success does not preclude a finding of
dilution. See t{hite v. Regester, 412 U.S.

at 7(t6; NAACI, v._ Garisrlen Co. School Board

691 t'.2d at 9B.I;

Srrpervisors, 55q F.Zd 159, 14, (5th Cir.
1e71 ) .

llre corlclusion of the District Court,
that tlre election of some minority can_

d id a t es does not neqat e a finding of
discrirninatory result, is consietent with
the clear irrtent of Congreaa as sLated in
the Senat.e Report: ,,II]he election of a few

m inori t y cancl ictates does not rnecessarily

foreclose the poss ibility of dilution of
tlre black vote,, in violation of this
secIion." S. Rep. at n.115.

Ihe determinat ion of whether an

e Iect oral system has an il tegal discrimi_
natory resu I t requires findings of fact
which blend,,hist.ory and an intensely local



-42

appraisal o F Ehe design and impacI of the

... mult i-member district in the IighI of

paeb and present real ity ' 
poI lI ical and

otherwise"' ' 
41? u'5'

at 769-77O' Ihe Dietrict CourI in this

acb ion engaged in just bhis " inLensely

IocaI aPpraisal.l' fhe DisLric! Court's

findings ace so meLiculously supported by

bhe record as bo warranL summary affirmance

bY Ehia CourL '

I I' llB'BlB'llt"i?'tloi[9"'["]'Eflt;

APPellants diePute the weight the

Disbr ict Court gave to ev idence t'hat a

handful of black voters and a few black and

whibe Politicians 
disagreed with the single

member d istricb remedies proposed by

PIaint i ffs '

lrr tltt;tr 'lurisclicl iolral Statcrnertt

appel l arrt s al lude Lo the tesbimony of one

who support ed retent ion of the mult i-member

redistrict'irtg ptans under which !hey YreEe

elect.ed and to Llre EesEimony of three hlack

wibnesseg who test ified in oPPoBition to

single member dist'r icts ' 
lence

Appe I I ant s characber i ze thie ev l(

ati $ubstartt ialr J'S' at 21' end urge tlrat

Ihe Court below crroneously disregarded it '

In fact the Drst r ict Court. carefully

evaluated the testimony oF aII the 5[ate's

wi t nesses as a factor bearing upon the

claim of racial vot'e dilution' J'5' at'

47 a'48a ' Ihe Court found that the black

wltnesses wlro LesIified for bhe 5t'at-e were

a ,,distLnct rninocity|| whose views 'rwenb

almost excltrsively to the desirability of

the remecly sotrglrt lly plaint if far end not to



-44

the presenb oxistence a condition of

vote diIution.,, Jg. rhie finding is amply

eupPorted bY the record'

Ihe appellants erroneously conEend Lhat

in evaluating a claim of racial vote

dilut ion, Lhe District Court should have

f ound that ev idence bhat t'he plaint i f f el

proposed remedy was not unanimously

endorsed by every member of bhe black or

wh i Is community outweighed aI I other

ev idonce o f bhe object ive factors ident i-

fied aB relovant by Congress ' Ihis is

fundamentally inconaisbent wiLh Lhe

Congreaaional mandate in amending Section 2

to oliminaEe racial voto dilution' It does

nob raise a substanbial question ' 9ompare

Educationr :106 F' SuPP ' 1291' 129' (}{'D'

N.C. 1969) Pff'd' 4OZ U'S' 1 (1971)..q!'

-45

Cooper v. Aaront

Monroe vo Bd. oI Commissioners

45A, 45s (1968).

II1' !-[F'il[^i3i,xt'Ilqi!!]::-
nci'ooes NoI BAR APP!!LEEs'
iiirn uNDER sEcTIoN 2

APpeIIants rely on Lhe decision by the

AssisIant At torney General of the United

StaLes Io preclear the House and SenaEe

reapport ionments pursuanb to Section 5 of

!he Vo t ing R ighLs Act t'o contond thsb

appellees (Plaintiffs below) were esLoppod

or pcecluded from pucsuing t'heir Section 2

claims in tlrose district's composed of

,58 U.s. 1t 15 (1e58);

, 191 U.s.



-46

10
count ies covered by Section 5. Thia

argumeni is sPecious, and was rejecLed by

bhe District Court for three reasons:

(1) Ihe etatute oxPressl Y contem-

pIaIes a de ggvo statuIory action by

pr iv ate plainti ffs; ( 2 ) The subsLan-

t, ive sbandard for a violation of

Section 5 ia not coterminous with the

substantive standard under Section 2i

and ( l) Section 5 Preclearance is an

gI parte non-adversarial process bhat

has no collateral esboppel effect '

Sect ion 5 of the Voting Righls Act

expreesl y contemplates a de novo act ion

euch aa in bhe insbant caae:

Neit.her en af f irmat ive indicat ion
b y the AEt orneY General thaI no

oU.l""tion will be made nor the
AtIorney General's failure to
object,, nor a declaratorY

Ihis argument is limited to House District
,S "ni Senate District *2, the onlY
districts compoeed of count ies covered by

Sect ion 5.

10

-47

judgrnent enLered under this i
sect ion shaII bar a subsequent
act ion lo enjoin enforcement of
such qualificationr prerequisite,
standard, pract ice r oF procedure.
42 U.S.C. $ tg73c,

Ihe at at ut e does not I imit such act ione to

purely const.iLutional claims or contain any

qual i ficat ions barring Section 2 act ion".1 
1

Private plaintiffs are entitled to bring a

subsequent act ion whether Preclearance

resul t s from "a declaratory judgment

enbered under this sectiont' or fron rsn

affirmat ive indication by the Attorney

General thal no objection will be made.'l

fg. Moreover, the Ianguage in Section 5

Appellants were so informed bY the
Assistant Attorney General in his April r0,
1982 precleanance Ietter to the State:
"FinalIyr" he wrote, ttwe feel I ragPon-
sibil it.y to point out that Sect ion 5 of the
Voting Riqhts Act expressly provides that
the failure of the Attorney General to
object does nob bar any subBequent judicial
act ion to enjoin Lhe enforcement of such
chang es . "

11



-48

should be viewed in the light ofl the recent

amendments to Section 2, in which Congress

made clear that private citizens have a

st,atut.ory cause of action to enforce their

r ight s in both Sect.ion 5 covered and

uncovered jurisdictions. lgg House Report

at 12; Senate ReporI ah 42. Plaintiffs are

t,he re f o re not barred f rom mount inq a de

novo staLutory or constitutional attack

upon a reapport ionment plan not withstanding

preclearance. LAig v. IEg!, .g,.!1P,I3., at

t27 n.1, ciIing Uni_ted_!!eqsr_ v. East

Baton !oqqg_ Jar ish School 89. , 594 F .2d 56,

59 n.9 (Sttr Cir. 1977).

Secondly, the failure of the Attorney

General to object under Secbion 5 cannot be

probat iv e o f rhether there is a Sect ion 2

v iolabion unless the standards under these

two sect ions of the Voting Rights Act are

t.he same. f here is notlring in tlre record

rhich demonstrates what standard the

-49

Attorney General used in preclearing House

District. ,B or Senate District 12. It is
part icul arI y ambrguous since these two

districts were precleared in April 1982,

Lwo rnonLhs before the 1982 extension and

enac tment o f amendments lo Section 2. It
i s man i f est , hoh,ever, that Ihe Attorney

Gene r a I d id not use the standard of a

statute yet to be enacted.

In addil ion, bhe legislat ive history

o f the amendment of Section 2 suggeste

that the use of the word t'r6Bultsfr in the

statute dieLinguiehes the ebandard for

prov ing a v iolat ion under the Section 2

totality of circumstances teat from the

Section 5 cegression standard for deter-

m ining d iscr iminatory purpose or effect.

Senate Report at 68 and n.224;2 Voting

Rights AcL: Hearings on S.5r, 5.1761,

5.1975, 5.1992 and H.R. ,112 Eefore the

Subcomrn. on the Conebitulion of the Sonate



_50

Comm. oo the Judiciary, 97th Cong., Zd

Sees. 80 (1982) ( remarks o f Sen. DoIe ) I 1ZB

Cong. Rec. Hr841 ( dail y ed. June Z), 19BZ)

( remarks of Rep. Sensenbrenner, with which

Rep. Edwards concurs) .

In short, nothing in the st alut e

itself , in the legislative history of ilre

recent amendment of Sect ion 2, in t.he case
12

I ar o f co I I a teral estoppel , or in the

12 lhere are four criteria that. must be
estab I ished before Ehe doctrine of coI-
lateral estoppel can be invoked. 1) Ihe
issue sought to be precluded must be the
same aB that involved in the prior Iiti-
gat ion, 2) the issue must have been
actual I y I itigated, )) it must have been
determined by a valid and final judgment,
and 4 ) the determinat ion mush have been
essential to the judgment. See generally,
hlright , Mil ler and Cooper, f e?EFaT-FTElfET6?
and Procedure: Jurisd icffi
ffiCurry, 449 U.s. 90 (I9BUT;
The party asserting estoppel has the burden
of proving all elements of the doctcine,
especially the existence of a full and fair
opportunit y to l it igate the issue. Icl. at
95. Matter o_1,!-,lelri!!, 594 F.2d 1054;1056
( 5th@ Kremer v. Chernical
Construct ion Corporat io@
11982) z "Redetermination of issues is
warranted if there is rearion to doubt the
qual ity extens Iveness, or fairness o f pro-

- 5l

troatment o f other administretive agency

determinat ions where there is a atatutory
right to trial cte novo r 

l J"rpport" 
appellant-

ceduces followed in prior litigation.,r Evenif all criteria are satisf ied, relitigation
may be appropr iate because of the potintiat
import of tlre first determination on the
publ ic interest or the interest of peraona
not parties to the original action. porter
and Dietsch- Inc. v. F.T.C.. 605 F.ZW

, 445 U. S.e50 (1e7e).
cert. denied

1t Ihis Court has held that a litle VIIplaintiff's statutory right to a trial de
no-vo is not foreclosed by aubmiseion of tEE
ET6'im to final arbitraiion, AIexande. ,.'
Ga rdne,r -Delv ej Com p an y . 41 5 U. S-3|ET|T7A ) ,even t.hough the complainant is a party to
the administrat ive proceeding. Similarly,a federal ernployee whogo employment
discriminat ion claims h,ere rejected by tneVelerans Aclrninistration and the Civil
Serv ice Commission Board of Appeals and
Review was nevert,heles ent itled to a trial
de novo. Chand-ler v. Roudebueh , 425 U. S.
ETo-T-t pz5 ) 

"a, i es Ib I e
BS evidence at the de novo proceeding, the
agency decision was enETtled only to theweight deemed appropriate by the couDt.
Alexander v. Gacdner-Denver,415 U.S. at



_52

sf claim that Sectiort 5 preclearatrce

precl udes subsequent litigat ion of a

violation under section 2.

Ihe nature of the ,administrab ive

preclearance process ilsel f exposes the

vacuit y of appellants' preclusion argu-

ment . Appel lants concede that. ihe Section

5 rev iew h,as conducted ex parte a$ a

nonadveraary proceeding.lornur" was no

formal hearing consistent with fundamental

Jurisdict ional Statemenl at 16: " Infact, theso dietricts were designed by
counsel and legislative drafters in dail y
conlact with the Assistant Attorney General
and members of t.he staff of bhe CiviI
Rights Division.'r Indeed, other than this
adm iss ion, the record is devoid of the
reaaoning or facts behind the Assistant
Attorney General's ultimate preclearance
decision. In his preclearance Ietters, the
Aesistant Attorney General never even
mont ions House District B and there is
absolutely nothing in the record to support
appellants'claim that the Attorney General
determined Ibhat it was irr t.he best
interesta of the black voters not to
d iminish black influence in ( Senate)
District 6 in order to tpack'(Senate)
District 2." J. S. at 16-17.

14

-5'

notions .f due ,r,r"""","
appellants, who were in "daily contact with
the Assistant Attorney GeneDalr!r J.S. at

1 6, appe I I ees could nol be and were not

parties to bhe preclearance deEermination.

Nor h,ere appellees entitled Lo sppeal or

in any form seek judicial review of the
preclearance clecision. Mocris v. Gres-

3,9!jg, 432 u. s. 4e1 (1e77) .

15 Ihe Just ice Department Sect ion ,
regulations provide that a covered juris-
dict ion must submit voting changes forpreclearance review, but the reviewing
o ffic i aI is not required to publish anopinion nor set forth raaaonB for the
preclearance decision. See 2g CFR S51.41.The procedure is ao informal that a
determ inat ion may be mede without the
Jual.ice Department taking any definitive
action at al l. IF a state submits a plan
and the Department takea no action withinsixty days, the plan is presumptively
approved. Id. A con ference may be
requesLed by the submitt ing jurisdiction
on reconsiderat,ion of an objection, Zg CFR
$ft.qf, but. none is required initially.
Par t i es opposing preclearance have noformal role in ilre deliberations.

and, unl ike



I'lorris

-54

Greseette arose in the

contert of a claim that private plaintiffs

had a right to judicial review of the

admilristrativo preclearance process. Irt

holding t.hat private parties had no such

right to inquire into the reasoning behind

the Attorney General's decision, to review

t.he proceBB by which he considered Lhe

change or to appeal directly his determi-

nation, this Court was persuaded that

Congreas had provided, through the statu-

tory grant of a triaI de ngys, for black

voters who disagree wit.h the preclearance

dec is ion and who have no other means of

Vo

protect ing their intereBts,

Gressette, 4rZ U.5. at 505-07.

Morris v o

Indeed,

thie is directly stated in the only other

case, Donnell v. United States, 682 F.zcl

24O, 247 (0.C. Cir. 1982), which appellants

cite to support their claim of pre-empt ion.

Neither Donnell nor Morris v. Gres-

-55

gette supporte the appellanter prsclualon

srguments. Indeed, they effirmatively
recogni ze that the Attorney General may

have interests other than the intereetB oF

minority votere and, more importantly, thaL

the voterg I intereata era explicltly
protected by the sbat.utory right to a trial
de novo.

Thus, the Dietrict Court properly

found the At torney General I e preclearance

determination rrhas no issue preclusive
(collateral oetoppel) effect in thie
action.'r (citation omitted) J.S. at 54a.

The decision below should bo affirmed

summarily.



-56

CONCLUSION

Because appellants did not

subst ant ial quest ion wlrich reqtri

argument, the Court should

judgment of the District Court

the appeal.

ralse any

res furtlrer

affirm the

on dismiss

Respect ful ly submit ted

JUL I US CHAMBERS
}LANI GUINIIR

NAACP Leqal Defense and
Educat ional Fund, Inc.
99 Hudson SLreet
15th FIoor
New York, New York 10011
(212)21e - 1 e00

LESLIE J. l{INNER
Ferguson, Watt, [{a[[as,

and Adkins, P.A.
951 South Independer)rre

Boulevard
Charlotte, Nortlr Carolina

282D2
(104) tt 5-8461

ALtorneys foc Appellees

*Counsel of Record