Defendant's Findings of Fact and Conclusions of Law
Public Court Documents
October 7, 1983

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Case Files, Thornburg v. Gingles Hardbacks, Briefs, and Trial Transcript. Pre-Trial Memorandum of Plaintiffs Ralph Gingles et. aI., 1983. 5094c351-d492-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/3551126f-a13b-46db-a4f5-620351f46cbe/pre-trial-memorandum-of-plaintiffs-ralph-gingles-et-ai. Accessed May 22, 2025.
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.qL / FOR UNITED STATES DISTRICT COURT THE EASTERN DISTRICT OF NORTH CAROLINA RALEIGH DIVISION RALPH GINGLES, €t dI., Plaintiffs, v. RUFUS L. EDMTSTEN. et dI., Defendants. -and- ALAN V. PUGH, €t d1., No.81-803-CIV-5 No. 81-1066-CIv-5 No. 82-545-CIV-5 v. JAMES B. HUNT, JR., -and- JOHN J. CAVANAGH, €t dl., Plainti ffs, et aI., Defendants. Plaintiffs, €11. , Defendants. v. etALEX K. BROCK, PRE-TRIAL MEMORANDUM OF PLAINTIFFS RALPH GINGLES ET AL. Ralph Ging1es, €t dI., as plaintiffs in Gingles v. of the class of black residentsEdmisten, challenger oD behalf of the State of North Carolina who are registered to vote, the 1981 and 1982 apportionments of the North Carolina Assembly as diluting the voting strength of these black registered ,7) voters in violation of Section 2 of the Voting Rights Act of 1965, amended June 29, L982, 42 U.S.C. S 1973 (hereafrer Section 2 or Section 2 of the Voting Rights Act), the Thirteenth, Fourteenth and Fifteenth Amendments to the United States Constitution, and 42 U.S.C. S 1983. The parries have stipulated that this court has jurisdiction over this acEion pursuant to 42 U.S.C. S 1973(f) and 28 U.S.C. SS 1331 and L343(a) (3) and (a) (4), and that a three judge courr is properly convened pursuant to 28 U.S.C. S 2284(a). I. Statement of the Facts In 1981 the North Carolina General Assembly enacted apportionments of the North Carolina House of Representatives and Senate in light of the 1980 census. The result of this initial apportionment, in July 1981, was a plan which used Large multi-member districts across the state, had no majority black districts, and had population deviations above 207". In compliance with the provisions of the NorEh carolina Consti- tution, Article rr S3(3) and 55(3) prohibiting rhe division of counties in the creation of a legislative district, each dis- trict was composed of whole counties. rn October, 1981, after this lawsuit wa.s fi1ed, challenging inter alia the fact that Article rr S3(3) and S5(3) were never precleared, the State submitted the North Carolina Constitution's prohibition against dividing counties to the Attorney General of the united states for preclearance pursuant to 55 of the Voting Rights Act of L965, amended, 42 u.s.c. 91973c (hereafter SecEion 5). While awaiting a decision of the Attorney General, -2- ,a\ the House, but not the Senate, enacted a second reapportionment lowering the population deviation to 162 but still using whole counties as the building blocks of districts, and sti1l creating no majority black district. Subsequently, by letter of November 30, 1981, the Attorney General of the United States objected to the constitutional prohibition against dividing counties finding that the use of whole counties in apportionment requires the use of large multi- member districts and that "the use of such mulEi-member dis- tricts necessarily submerges cognizable minority population concenEraEions into larger white electorates." On December 7, 1981 and January 20, L982 the Attorney General also objected to Ehe Senate and House apportionments. The General Assembly convened in Febru&ry, L982 and again in April, L982 to reapportion the House and the Senate. At each session the object was to deviate from the prior enacted apportionments as littIe as possible while creating a plan which could muster Section 5 preclearance and which would be consistent with the one person one vote requirements of the Equal Protection Clause. The result of the final apportionment, Chapters one and two of the Session Laws of the Second Extra Session of L982 is that some counties covered by Section 5 were divided to form majority black single-member districts. This was done, however, only to the extent required by the Attorney General of the United States pursuant to his authority under Section 5. Some non-covered -3- ,t counties were also divided, but only if needed to get population deviation lower than 158. In contrast, significant concentrations of black citizens were left submerged in large majorj-ty white multi-member dj-stricts consisting of whole (or almost whole) counties not covered by Section 5, j-ncluding Mecklenburgl Forsyth, Durham, and Wake Counties. It is undisputed that reasonably compact majority brack single member House districts courd easily be created by subdividing each of those counties and that che Coumittees of the General Assembly had such distrlcts, drawn by a member of the legislative staff, available to them during the delibera- tion. Similarly, a majority white single member Senate district which is reasonably compact could easily be formed by subdividing Mecklenburg County, and a member of the legislative staff had done so. In addition, the legislature created a majority white 4 member district out of wilson, Edgecombe and Nash counties even though each county is covered by Section5 and a 62.7* black district coul-d be formed if that distri-ct v/ere subdivided into single member districts. This area was treated differently than the other section 5 counties simply because the Attorney General failed to identify this district by example in his letter of objection. Finally, in Eebruary, 1982, on instructj-ons from the Attorney General to reorganLze the concentrations of black citizens in the 4- ,l Halifax County, Martin County, Gat-es County area by dividing a multi-member district and creating a single-member Senate district, the General Assembly enacted an apportionment j-n which Senate District #2 had a 51.78 black populati-on. When the Attorney General objected to this district, the black popu- lation percentage was increased to 55.18 although the percentage of black registered voters was sti11 only 46.22. The four percentage point increase was the minimum thought to be able to survive the Section 5 preclearance process. At the same time, District *6, the adjacent district, was left 492 black in popu- lation, thus fracturing the geographically insular concentration of black citj-zens in Districts 2 and 6. As a result, neither district has an effective black voting majority and black voters have been denied an equal opportunity to elect a representative of their choi-ce to the Senate. Thus, in at least seven instances, the House and Senate submerged significant concentrations of black citj-zens and in one instance, the Senate fractured the black concentration of voters as follows: Percent PercenE Blad< I$urnber of Black F.:rarple of Possible C\-rrent District Cor:nty trknbers Population Single }4erber District Ilouse /136 lbcklerrbr-rg 8 26.52 667. + 717" (2 dlstricts) Ibuse #39 Forsych(paru) 5 25.L2 70.0 Ilouse #23 Drrhan 3 36.32 70.9 Ilcuse #21 I^iake 6 2I.82 67 Ilcuse #8 Wilson-Edgecornbe- Nash 4 39.52 62.7 %nate ll22 lbcklenbrrg- Cabarnrs 4 24.32 70.8 Senate //2 lilcrtheast 1 55.L2 60 .7 Plaintiffs challenge each of these districts. tr J rr. Plaintiffs wilr show that the reappoltionment o ;- The voting Rights Act applies to craims of discriminatory redistricting and prohibits redistricting plans that dirute minority voting strength. congress intended the voting Rights Act to be a broad charter against arl systems and practices that diminish black voting strength. when congress extended the Voting Rights Act in i975, the Senate observed: As registration and voting of minority citizens increases, other measures may be resoited to which dilute increasing minority voting strength. Such measures may include the adoplion ofdiscriminatory redistricting plans. S. Rep. No. 94-295,94th Cong., lst Sess. lG-17 (1975). The senate Report accompanying the 1992 extension and amendment of tte a.t1/echoes the same concern: The initial effort to implement the Voting RightsAct focused on registration It is notsurprising, therefore, that to many Americans, theA9t is synonymous with achieving minority registra-tion. _But. registrqtion is @- hurdle !o g.f f cess.As the Supreme Court s the Act: !/ s. Rep. No. 97-417, 97rh cong., 2d sess. (19g2) (hereafter senate Report). The senate Report is reprinted in ir,e unitedstates code cong. and Ad. News, No. 5, July Lgg2, dt 177 ff. The first 88 pages are the Report of the committee on theJudiciary and contain the view of the co-sponsors of the amendments which passed the senate by a vole of g5 to g. l2gcong. Rec. s. 7139 (daily ed. June 18, 19gz). The bill thaLpassed the Senate was subsequently adopted without modificationby the House of Representatives. see note 2, infra. There bras no need for a conference committee, and noiEwEs ever con- vened. 6- The right to vote can be dilution of voting power an absolute prohibition ba1lot. AIlen v. Bd. of affected by a as well as by on casting a Elections, 398u.s. 544 (1969). Senate Reportr at 6 (emphasis addded). Accordingly: [F]or purposes of Section 2, the conclusion o.. that "there were no inhibitions against Negroes becoming candidates, and that in fact Negroes had registered and voted without hindrance", would not be dispositive. Section 2, as amended, adopts the functional view of "political process" rather than the formalistic view ..., [T]his section withoutquestion is aimed at A es the form of dilution, a t of the right to register oi to vote. Senate Reportr Elt 30 n. 120 (emphasis added ) . Claims of discriminatory redistricting faIl squarely within the ambit of the Act. rndeed, "[T]he continuing problem with reapportionment is one of the major concerns of the voting Rights Act..." Senate Reportr dt 12 n.3.|. section 2 of the voting Rights Act specificarly prohibits redistricting plans that result in dilution of minority voting strength. section 2 reaches any '!system or practices which operate, designedry or otherwise, to minimize or cancel out the voting strength and political effectiveness of minority groups." Senate Reportr dt 28. A. The Section 2 Standard On June 29, 1982, the president signed into law an Act 7- ..+ amending Section 2 to provide that voting practices are unlawful which result on account of ?/131. Amended Section 2, 42 U.S.C. S 1923, provides: (a) No voting qualification or prerequisite to voting or standard, practice, or pro- cedure shall be imposed or applied by a State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in Section 4(t)(2)| as provided in subsection (b). (b) A violation of subsection (a) is established, if, based on the totality of the circum- stances, it is shown that the political processes leading to nomination or election in the state or political subdivision are not equally open to participation by members of a class of citizens protection by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision, is one "circumstance" which may be considered, provided that nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the populat ion. ?/ The House passed its version of a bill amending and extending the voting Rights Act of 1965 on october 5,1981. 127 cong. Rec. H. 7011. The Senate thereafter adopted its version of the bill on June 18, 1982. 128 cong. Rec. s.7139. subsequentryr on June 23, 1982, the House unanimously adopted the final Senate version of the Act with the understanding that the effect of the Section 2 amendment was identical under either the original House biIl or the Senate bill . '128 Cong. Rec. H. 3840. in the denial or abridgement of the right to vote race or color. Act of June 29, 1982, 96 Stat. 8- Prior to the 1982 amendment, Section 2 provided in relevant part as follows (42 U.S.C. S 1923): No voting qualification or prerequisite to voting,or standard, practice, or procedure shalr be imposeaby any State or political subdivision to deny or abridge the right of any citizen of the United Statesto vote on account of race or color * * * . rn amending the statute, congress dereted the words,,to deny or abridge" and substituted new language so that it no$, provides that no voting procedure, etc., shall be imposed or applied "in a manner which results in a denial or abridgement,, of the right to vote on account, of race or color (emphasis addded). congress also added an entirely ne$, paragraph (designated subsection (b) ) which provides that a vioration of the original paragraph, as amended (now designated subsection (a)) is established: if, based on the totality of circumstances, it is shown that the poriticar processes leading to nomina-tion or election in the State or political subdivisionare not equally open to participation by members of acrass of citizens protected by subsection (a) in thatits members have ress opportunity than other membersof the erectorate to participate in the political process and to elect representatives of their choice. congress used the "results" ranguage in the new subsection (a) in order to eliminate the need to show discriminatory purpose to estabrish a violation of section ,.2/ The relevant inquiry is whether a voting practice resurts in an unequar opportunity 1/ See Senate Report, supra, at 16, 17, 27-2g, 31-43i and 1!:-?t.19? (additional views of Senaror Dole); 129 Cong. Rec.s6560 (daily ed., June 9, L9B2) (Kennedy); id. at s677i (daily€d-, June 15, 1982) (spector) i id. at s6g6olaairy ed., June 17,1982) (Dole); id. ar s6647 (daily ed., June io, t-gaz) (Grassl.yiid. at H3840 (June 23, 1982) (Edwards); id. at H3841'(dailv eo.,ilne 23, 1982) (Sensenbrenner) . 9- a l' t nto participate * * * and to electr', not whether the inequality is attributable to a discriminatory nu.no"".1/ congress took the "equarly open to participate', language from white v. Regester, 412 u.s. 755 (1973), the first case in which the Supreme Court found a multi-member district system to be unconstitutional. rn white, the court stated that in prosecuting a Fourteenth Amendment challenge to a multi-member district system " It] he plaintiffs t burden is to produce evidence to support findings that the poritical processes leading to nomination and election were not equarly open to participation by the group in question that its members had ress opportunity than did other residents in the district to participate in the political processes and to elect legisrators of their choicer,, 412 u.s. at 766. see also whitcomb v. chavis, supra, 403 u.s. at 149-150. !/ The effort to amend section 2 began in the House as H.R.3112, 97th cong., lst sess. (1981). as passed in the House, thebill included the subsection (a) "resultin language but objectionswere raised that it did so in sufficientry sweepiig terms tosuggest that a violation of the section could ba eitaUtishedmerery by showing that members of a minority group had not beenelected in numbers equal to the group's proloition in the popula-tion. rn the Senate, compromise-lanluage wls substituted whichincluded the "results" language from th6 House bill, but removedany suggestion that a viotition could be established on the merefailure to obtain proportional representation, and added thetropportunity * * * to participate in the poliiicar process" language that now appears in iubsection (b). see s-enateReport, EIpLs, at 3-4. This substitute was approved by thesenate after severar days of debate. 129 con|. Rec. ssagT-s6561(daily ed. June 9, 1982)i 3d. ar S6638-5G655 iauily ed., June10, 1982) i id. at s5714-s6726 (dairy €d., June 14, 1g}2i; id. ar 16-77 7-s679sJdaily ed. , June 15, tgbz) i 1d. at s6i14-s69ieI-s6929-s6934, s5938-s6970, si977-s7002 (dar1y ed., June 17,1982)i id. at s7075-s7142 (daity €d., June lg, 1gB2). The Houseaccepted the Senate compromise by voice vote several days later.128 Cong. Rec. H3839-H3846 (daily ed., June 23,19g3). 10 .. )l As the legislative history in both houses makes clear, Section 2 was amended primarily in response to the decision of the Supreme Court in City of Mobile v. Bolden, 446 U.S. 55 (1980). See Senate Report at 28; House Report at 29-30. The amendment of Section 2 was intended by Congress to restore its original understanding of the standard governing challenges to discriminatory election practices and procedures which had been applied by the courts prior to City of Mobile v. Bolden. Both houses indicated that the statute, when enacted in '1965, did not require proof of intentional discrimination for a violation, despite indications to the contrary in the plurality opinion in City of Mobile v. Bolden, supra, 446 U.S. at 51. See House Report 292 "The purpose of this amendment to Section 2 is to restate Congress' earlier intent that violations of the Voting Rights Act, including Section 2, be established by showing the discriminatory effect of the challenged practice. " (Footnote omitted); Senate Report, 17: "The Committee amendment rejecting a requirement that discriminatory purpose be proved to establish a violation of Section 2 is fully consistent with the original legislative understanding of Section 2 when the Act was passed in 1965." But, of course, regardless of whether Congress was correct in its understanding of the proof requirement of White v. Regesterr or any other pre-Bolden voting rights cases, what is relevant is that Congress enacted a statute which dispensed with the requirement of proving any kind of discriminatory 1l purpose to estabrish a voting rights violation. senate Report, 28; House Reportt 2B-9. Although the results standard of Section 2 derives from congress' understanding of the standard of proof in white v. Regester, supra, Congress explicitly provided that the test for a statutory violation was significantly different from that under the Constitution. (a) As previously noted, proof of discriminatory purpose is not required to estabrish a violation of the statute, regardress of the standard appricable in constitu- tional challenges. cf. city of Mobile v. Borden, supra, 446 u.s. at 69, quoting washington v. Davis, 426 u.s. 22g, 240 (1976), that "the invidious quarity of a law craimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose. " (b) Unresponsiveness in not an element of a statutory vioration, whatever its relevance in constitutionar cases. rndeed, congress provided that the use of responsiveness is to be avoided, because it is a highly subjective factor which creates inconsistent results in cases presenting similar facts. senate Report 29, n.1 1 6 ( [T] he amendment rejects the ruling in Lodge v. Buxton and companion cases that unresponsiveness is a requisite element. " ) ; House Report 29 , n.94, 30 (,,The proposed amendment avoids highry subjective factors such as responsiveness of elected officials to the minority community.,') rn fact, responsiveness is of no rerevance even in rebuttal, Lf 12 plaintiff chooses not to offer evidence of unresponsiveness. senate Report at 29, n.116. cf. zimmer v. McKeithen, 495 F.2d 1297 (5th cir. 1973)(en banc) aff'd on other grounds sub nom. East carroll Parish schor Board v. Marsharr, 424 u.s. G3G (1977) (per curidrn), referred to in the senate Report as the "seminal' case. see senate Report at 23. rn zimmerr Do proof was offered that defendants were particurarly insensitive to the interests of brack residents, and the absence of a craim of unresponsiveness did not negate plaintiffs' successful attack on the at-large elections in East carroll parish. compare Rogers v. Lodge, _ U.S. _, 102 S.Ct.. 3272 (1982) wherein the Supreme Court expressly disapproved of the lower court's holding that proof of unresponsiveness was an essential erement of a constitutional challenge. see also NAACp v. Gadsden Countv schoor Board, 691 F.2d 978, 983 (1lth cir. 1gB2) (unresponsive- ness is not relevant to the question of discriminatory impact). (c) Foreseeability of consequences is "quite relevant evidence of a statutory vioration." senate Report 2'l, n.l0g. For example, evidence that the North Carolina General Assembly knew that its reapportionment plans submerged concentrations of minority voters, and knew that a district of. 55t black popura- tion did not have an effective black voting majority, is rerevant to praintffs I proof of a statutory vioration. (d) Whatever limitations may exist on the scope of the constitutional bar against indirect interference with the right to vote, see, €.9. r City of Mobile v. Bolden, supra, 13 446 U.S. at 55, n.6 (1980), Section 2 embodies a functional view of the poritical process and prohibits a very broad range of impediments to minority participation in the electorate. Senate Report, 30, n.120i House Report, 30. In particular, the Congress was concerned about methods of election, such as at-large elections and the use of murti-member legislative districts, that tend to minimize and cancel out minority voting strength.... Numerous empirical studies based on data collected from many com- munities have found a strong Iink between at-Iarge elections and lack of minority representation. House Report, 30. See McMillan v. Escambia County, 588 F.2d 960r 961 n.2 (5th Cir. 1982), reh. den.692 F.2d 758 (Section 2 as amended "encompasses a broader range of impediments to minorities participating in the political process than those to which the Bo1den plurality suggested the original provision was Iimited" ); Buchanan v. The City of Jackson and the State of Tennessee, No. 81-5333, slip op. at 9-10 (6th Cir. June 7t 1983). (e) tack of proportionate representation is relevant to a claim of vote dilution. Section 2 provides that the extent to which minorities have been erected to office may be probative of a violation. The legislative history makes clear that the Court should considerr ds part of plaintiffsr proof, an historic pattern of a disproportionately low number of blacks being elected to the legislative body. House Report at 30: 14 .,. the fact that members of a racial or lan- guage minority group have not been elected in numbers equal to the group's proportion of the population does not, in itself, constitute a violation of the section aI- though such proof, along with objective factors, would be highly relevant. Moreover, the sporadic election of a few minority candidates Senate Report at 29, v. McKeithen, supra. .. . the success of black candidates at the polls ... mightr on occasion, be attributable to the work of politicians, who, apprehending that the support of a black candidate would be politically expedient, campaign to insure his election. Or such success might be attributable to political support motivated by different considerations namely that election of a black candidate will thwart successful challenges to electoral schemes on dilution grounds. In either situation, a candidate could be elected despite the relative political backwardness of black residents in the electoral district. 485 F.2d at 1307. Thus, the statute incorporates prior case Iaw that plaintiffs may prove dirution of brack voting strength despite the fact that some brack candidates enjoy nominar success at the pol1s. See, White v. Regester, 412 U.S. at 766i NAACP v. Gadsden does not vitiate plaintiffs' proof. n.115, citing with approval Zimmer County Schoo1 Board, supra, 691 F.2d at 983; Kirksey v. of Supervisors, 554 F.2d 139, 143 (5th Cir.'1977). Board B. Elements of Proof Under Section 2 The legislative history provides that Section 2 violation plaintiffs can show a to establish a variety of factors, 15 including those derived from the Supreme Court in White v. in subsequent decisions such as follows: the analytical framework used Regester, and as articulated by as Zimmer v. McKeithen, supra, (l) nation in extent of any history of official discrimi- state or political subdivision that touched the rights of the members of the minority group to register, to voter oE otherwise to participate in the democratic process i (2) The extent to which voting in the erections of the state or political subdivision is racialry polari zedi (3) The extent to which the state or political sub- division has used unusuarly rarge erection districts, majority vote requirements, anti-singre shot provisions, or other voting practices or procedures that may enhance the opportuntiy for discrimination against a minority group; (4) rf there is a candidate slating process, whether the members of the minority group have access to that pro- cess; (5) The extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and hearth, which hinder their ability to participate effec- tively in the political processi (6) whether politicar campaigns have been character- ized by overt or subtle racial appeals; The the 16 (7) The extent to which members of the minority group have been elected to public office in the jurisdiction. Senate Report, 28-9. These factors are the most important ones in evaluating whether or not black voters "have less opportunity than other members of the electorate to participate in the political process, and to elect representatives of their choic€r,, within the meaning of Section 2. There is no requirement under the statute that any particular number or aggregate of factors, however, be proved or that they point one way or the other. "The eourts ordinarily have not used these factors, nor does the committee intend them to be usedr dS a mechanical rpoint countingr device." senate Report, 29, n. l1g. Instead, aPPlication of Section 2 requires the trial courtrs over- all judgment, based on a totality of the relevant facts and circum- stances of the particurar case, whether minority voters enjoy the same opportunity as white voters to participate in the political process and whether minority voters have an opportunity equal to that of white voters to elect representatives of their choice. fn amending Section 2, Congress thus intended to establish a reliabre and objective standard for adjudicating voting rights violations. ft indicated that in determining an overall'rresult'l of discrimination, based on the totarity of circumstances, certain types of objective, verifiabre evidence should be emphasized (such as an officiar history of discrimination in voting, raciar bloc voting, use of a majority vote requirement 17 , t) or other practices, such as multi-member legislative districts, known to enhance the opportunity for discrimination, the extent of election of minority candidates over an extended period of time and the present effects of discrimination in such areas as education, employment and hearth). other types of subjective and impressionistic evidence were not regarded as relevant or weighty (such as unresponsiveness), and no inference of discrimi- natory purpose -- no matter how circumstantiar is required. Recent cases applying the analysis of amended section 2 to strike down at-large erections and other dilutive procedures include Jones v. Lubbock, C.A. No. 5-76-34 (N.D. Tex., Jan. 20, 1983), slip op., 14 ("under the findings of the court with respect to the factors which the congress deemed to have been relevant to the determination of this question, and under the toEality of all of the circumstances and evidence in this case, it is inescapable that the at-large system in Lubbock abridges and dilutes minoritiesr opportunities to elect members of their ogrn choice.') i Thomasville Branch of NAACp v. Thomas county, Georgia, Civ. No.75-34-THoM (M.D. Ga. Jan.26,1993); Rvbicki v. The state Board of Erections of the state of rlrinois, et Err. , No. 81-c-6030 (N.D. rrr. Jan . 20, 1983 ) ; Taylor v. Haywood County, Tenn., 544 F. Supp. 1122, 1134-35 (W.O. Tenn. 1gg2) (applying the section 2 factors and granting a preriminary injunction against use of at-rarge voting for the Haywood County Highway Commissioners) . 't8 t C. Plaintiffs I Proof Plaintiffs intend to prove that the challenged legisla- tive reapportionment of the North Carolina General Assembly has, under the totality of circumstances in this case, a racially discriminatory result in violation of Section 2. By presenting evidence consistent with the factors identified in the Senate Report, plaintiffs will show that the use by the North Carolina General Assembly of multi-member legislative districts in metropolitan areas with large concentrations of black voters unlawfully dilutes the voting strength of those voters. (a) Plaintiffs will show that there has been a long history of official discrimination against blacks in North Carolina involving registration and voting including the use of pol1 taxes, a numbered seat provision and literacy tests. Plaintiffsr evidence will show that the historic disfranchise- ment of black voters has continued to inhibit black people from re-entering the political process, and that past barriers have a lingering discriminatory impact on participation by black voters. The existence of an extensive history of racial discrimina- tion has always been considered relevant to a claim of unlawful vote dilution. The courts have recognized the lasting impact of historic policies of racial discrimination, and have, in fact, placed the burden on defendants to show that the residual effects of past patterns have been dissipated. See e.9., Kirksey v. 19 Board of Supervisors of Hinds County, supra at 146; Zimmer v. McKeithen, supra, at 1305; White v. Regester, supra at 766i Rogers v. Lodge, 73 L.Ed.2d at 1017, 1024. (b) Plaintiffs will show that voting in North Carolina is racially polarized. Plaintiffst evidence wiIl further show that on the basis of a computer assisted analysis of all legislative races in the past six years in which a black candidate ran from a multi-member district at issue in this '1/case, the polarization on the basis of race hras pervasive. (c) The parties have stipulated that the State of North Carolina employs a majority vote requirement in primary elections. The evidence will show that this 1aw was enacted in the same legislative session where the General Assembly enacted a statute permitting 1ocal political parties to conduct all-white primaries, and that it is well known that a majority vote run-off require- ment enhances the opportunity for discrimination against minority 9-/voters. 1/ The courts have recognized that in a racially polarized electorate, there tends to be submergence and dilution of the voting strength of the minority voters, especially where thejurisdiction uses multi-member or at-large election districts and a majority vote run-off requirement. See, e.g., City of Port Arthur v. United States, 74 L.Ed.2d 334, 342 (1982)i United J6ffiE- orgaffiarey, 430 U.S. 144, 16G-67 (1gTTl: "Where it occurs, voting for or against a candidate because of his race is an unfortunate practice. But it is not rare; and in any district where it regularly happens, it is unlikely that any can- didate will be elected who is a member of the race that is in the minority in that district. " 9_/*e_, e.9., Rogers v. Lodge, 73 L.Ed.2d at 1023, 1024i Citv of Port Arthur v. United States, 103 S.Ct. 530 at 535; White ". McKeithen, 48S f .ZE'- at 1 306. 20 The parties have stipulated Ehat North carolina has pre- viously used a nurnbered seat system for legislative races and an anti-single shot voting Iaw in many county and municipal elections. These practices continued until declared unconstitutional by the federal courts. These practices are identified in the Senate and House Reports as enhancing the opportunity for discrimination against black voters. Senate Report at 29i House Report at 18. Plaintiffs will produce evidence that other practices sti11 in use by the State of North Carolina also enhance the opportunity for discrimination. Such practices include the use of election districts that are unusually large and the use of multi-member Iegislative districts. The large size of some of the multi- member districts makes it particularly difficult for blacks to campaign effectively because of the increased costs of running for office. Senate Report at 29i see Rogers v. Lodge, supra, 102 S.Ct. at 3280-81 ("The court concluded, as a matter of law, that the size of the county tends to impair the access of blacks to the political process.") See Connor v. Johnson, 402 U.S. 690, 692 (1971) (preference for single member districts in "Iarge" districts); House Report at 18: "The Committee heard numerous examples of how at-large elections are one of the most effective methods of diluting minority strength in the covered jurisdictions". (d) Plaintiffs do not contend that there is a formal candidate slating process in North carorina. plaintiffs wirl show that in certain parts of North Carolina there is an informal slating process in which members of the minority group do not part i cipate . 21 (e) The evidence wirr show that members of the minority group stirl bear the effects of discrimination in education, employment and health and therefore their ability to participate in the poriticar process is hindered .Z/ *u.n of the data showing a disparity in income, educational achievement, health and housing is stipulated. (f) The evidence wirl show the historic use of raciar appears in erectoral campaigns starting in lggg and the continuing and persistent use of raciar telegraphing in election campaigns from 1976-1993. (g) The evidence will show that blacks have not been elected to pubric office in the state of North carorina in numbers even approaching their proportion of the popuration. Praintiffs wish to make it crear that we do not contend that blacks have a right to proportional representation in the North Carolina General Assembly or that evidence of under representation is conclusive proof of a section 2 violation. we wirl simply show, consistent with the statute and legislative history, that there is stitl under-representation of bracks in the state legislature, and that this has been true throughout this century. For exampler prior to 1969r rro black was eledted to either the 1( Plaintiffs are not required to show a causal nexus betweentheir disproportionate edudational 1eve1, income leveI and livingconditions and their depressed rever of participation in thepolitical process. senlte Report at 2g, cilin!-wt,ite ". Regester,412 u-s- at 768; Kirksev v. soaro or supervisois;=ga F.2aE--145: "Inequality of access is an inference existence of economic and educational 22 which flows from the inequal it ies. " state senate or state House. since 1969, although bracks con- stitute more than 25* of the popuration of the charlenged districts, onry 20 out of 320 legislators in the Generar Assembry elected from those districts have been brack. see Stipulation of Parties, numbers 95 and 96. (h) Evidence of the tenuousness of the policy underlying the state's use of large multi-member districts has probative value as part of plaintiffs' evidence. senate Report, 29. The tenuousness of the staters policy is not, however, identified in the regisrative history as a typical factor nor even particularly important to establish a violation. rn this case, dlthough our proof does not depend on it, prain- tiffs are prepared to present evidence, in anticipation of the defendantsr case, that the policy underrying the staters use of large murti-member districts and not dividing counties is, in fact, tenuous. For exampre, praintiffs are prepared to show that the legislature ignored its own previously adopted criteria for reapportionment, relied on outdated considerations regarding the nature of business conducted by the legislature and the legitimate needs of county government, and allowed the protec- tion of white incumbents and an anti-Repubri'can animus to dominate the process. Plaintiffs contend that where political considerations are allowed to dominate neutral redistricting objectives and constitutional imperatives, a,,politically balanced" plan that nevertheless consciously minimizes minority voting strength cannot be sustained. see e.g., perkins v. city 23 . rD./} of West Helena, Ark., 675 F.2d 201, 216-17 (Bth Cir. 19g2li Robinson v. commissioners court, 505 F.2d 674 (5th cir. 1974). Plaintiffs further contend that the fairure to divide counties is not excused by the North carolina constitution. Plaintiffs will present evidence that according to the record of the legislative proceedings, the Generar Assembry did not consider the North Carolina Constitutionts provisions binding on it after the united states Attorney Generar interposed a section 5 objection. Finalry, even if the Generar Assembly had relied on the provision of the North Carolina Constitution, the supremacy clause of the United States Constitution, Article VI, section 2t requires that section 2 of the voting Rights Act supersede the provisions of state 1aw. The above discussion of plaintiffs' proof focuses on show- ing how the challenged plans resurt in dilution of minority voting strength through the use of multi-member districts. rn addition, plaintiffs wilI show that the challenged reapportion- ment prans result in dilution of minority voting strength by fracturing concentrations of brack voters. Fracturing is a classic device for diluting the voting strength of a geographi- cally cohesive brack community. "The most crucial and precise instrument of the denial of the black minority's equal access to poritical participation, however, remains the gerrymander of precinct lines so as to fragment what could otherwise be a co- hesive voting broc. " Kirksey v Board of supervisors of Hinds county, supra, 554 F.2d at 149. plaintiffs wirr show that in 24 senate District 2, the Generar Assembry fractured the voting strength of black voters, and that under the totality of circumstances, this resurted in a violation of section 2. The defendants appear to take the view that simply because blacks can register and vote in North Carolina, and have recently been elected to a few offices in the state, there can be no dilution of minority voting strength. consequently, they virtually ignore the rich evidence plaintiffs wilr present of racial bloc voting, of subtre racial appears in elections, the depressed socio-economic status of blacksr and the continuing effects of past discrimination and the other factors indicated by Congress which show that an election practice results in the denial or abridgment of the equal right to vote. This limited view has no basis in the Iaw, the legislative history or prior cases. Congress specifically rejected the view urged by defendants when it amended and extended the Voting Rights Act in 1982. Senate Report, 30, n.120. The discriminatory resurtsr test focuses on whether the poriticar processr ds it has worked, and as it no$/ promises to work, has made it equally possible for minority voters to participate in the political process and elect representatives of their choice to office. The factors listed in the legislative history as probative of this inquiry, which plaintiffs will prove at triaI, demonstrate that the 1981 and 1982 legislative reapportionments of the North Carolina General Assembly result in the denial and abridgment of the right of blacks to vote on 25 a r+ account of race in violation of Act. Section 2 of the Voting Rigths III. Plaintiffs will show that the 1981 and 1982 1 i s lat ive reapport ionments of the North Caro ina Genera Assemb ntentiona scr minate a ainst ack voters n the state Although not necessary to plaintiffs' claims under Section 2 of the Voting Rights Act, evidence that defendantrs redistrict- ing plan purposefully dilutes the voting strength of blacks supports those claims. As explained in the Report of the Senate Committee on the Judiciary, dt 27 z The amendment to the language of Section 2 is designed to make clear that plaintiffs need not provide a discriminatory purpose in the adoption or maintenance of the challenged system or practice in order to establish a violation. Plaintiffs must either prove such intent t ot, alternatively, must show that the challenged system or practice, in the context of all the circumstances in the jurisdiction in question, results in minorities being denied equal access to the political process. Evidence that the redistricting plan was motivated, under the totality of circumstances, by an intention to minimize or dilute black voting strength is also an element of plaintiffsr claims under the Fourteenth Amendment. Rogers v. Lodge, 102 s.cr. 3272, 3275-76 (1982). The Supreme Court has articulated two principles to guide the lower courts in determining the existence of discriminatory purpose. The first principle is that the plaintiffs need not prove that the challenged redistricting plan was motivated solely by a discriminatory purpose. Once it has been shown that discriminatory considerations v,,ere one factor, plaintiffs 26 ..| have established their prima facie case. The burden then shifts to the defendants to establish that precisery the same district boundaries would have been drawn even in the absence of discriminatory considerations. vilrage of Arlington Heights v. Metroporitan Housing Deveropment corp., 429 u.s. 252t 265-55, 270-71 n.21 (1977). According to the court in Rybicki v. State Board of Elections, No. g1 c. 6030 at 57-62 (N.D. I11. Jan. 12r 1982)t the burden this places on the defendant is a very heavy one. The second principle is that discriminatory intent can be proven by circumstantial evidence: [D] iscriminatory intent need not be proven by direct evidence. ',Necessarily, an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another.,' Rogers v. Lodge, supra at 3275 (1982), quoting Washington v. Davis, 426 U.S. 229, 242 (1976). fn Rogers, the Supreme court rejected the prurality's suggestion in Mobire that plaintiffs must prove through direct evidence that a dis- criminatory intent was the motivating factor of the decision- makers. Buchanan v. The city of Jackson, et ar., No. 51-5333, 5th cir. (June 7, 1983) slip opinion at 6t 8. copy attached. This principre has been squarely accepted by the congress as exprained in the legislative history to the 1982 section 2 amendments: Plaintiff may establish discriminatory intent for purposes of this Section [Section 2], through 27 r.l direct or indirect circumstantiar evidence,including the normal inferences to be drawn fromthe foreseeability of defendant's actions which "is one type of quite relevant evidence of ra_cially discriminatory purpose.,, Dayton Bd.of Educ. v. Brinkman, 443 u.s. 526-36-n.g (1g7g). senate Reportr €lt 27 n.108. consequentry, discerning dis- criminatory purpose "demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be avair- able.n Arlington Heights, supra 429 U.S. at 266. The Fifth circuit recently summarized the evidentiary sources alluded to in Arlington Heights which are useful for assessing the existence of purposeful discrimination as follows: ( 1 ) the historical background of the action,particularly if a series of actions have been taken for invidious purposes i (2) thespecific sequence of events leading up tothe challenged action; (3) any procedural departures from the normal procedural sequence i (4 ) any substantive departure from normal procedure, i.e., whether iactors normally considered important by the decision-maker strongly favor a-decision contrary to the one reached; and (5) thelegislative history, especially where contemporary statements by members of the decisionmaking body exist. McMillan v. Escambia countv,639 F.2d 1239r 1243 (5th cir. lggl) Defendantsr course of conduct during the redistricting process strongly supports the inference that the legislature fractured the black population in Northeastern Senate District 2 and minimized their voting strength intentionally. The defendants enacted the redistricting plan in a manner calculated 28 r.- to minimize the input of the black community. The Supreme Court has recognized that evidence of purposeful discrimination can be found in "the specific sequence of events leading up to the challenged decision." Arlington Heights, supra, 429 U.S. at 267. Plaintiffs will present other evidence of the discriminatory purpose behind the creation of Senate District 2. Plaintiffs will show that the General Assembly drew a 558 black district, knowing that black voters will be unable to elect representa- tives of their choice from a district that is significantly less 8l than 657" bLack.- Plaint,iffs will show that by drawing a 55t black district in Senate District 2, the General Assembly fractured a concen- tration of black voters in order to minimize their voting strength. Courts have found evidence of fracturing to be probative of racial purpose. As the three judge court in D.C. concluded in Busbee v. Smith, 549 F. Supp. 494r 517 (D.D.C. 1982), aff I d. u. s. , 103 s.cr. 809 (1983): 9_/ The 65t figure is a general guideline which has been used by the Department of Justice, reapportionment experts and the courts as a measure of the minority population in a district needed for minority voters to have a meaningful opportunity to elect a candidate of their choice. See Mississippi v. United States, 490 F. Supp. 569 (D.D.c. 197ET; ffi,?[-J--U.S.-70-m- af98-0T. The 65t guideline, which the suprenre Court char- acterized as "reasonable" in United Jewish Organization Inc. v. Carey, 430 U. S. 1 44, 164 ( 1 977 e younger median population age and the lower voter registration and turnout of minority citizens. Plaintiffs will show that the General Assembly was aware of the significance of this 65t f igure. 29 {ra fn this case, the state fragmented the large and contiguous black population that exists in the metropolitan area of Atlanta by splitting that population between two Congressional districts, thus minimizLng the possibility of electing a black to Congress in the Fifth Congressional District. The impact of this state action is probative of racial purpose. A discriminatory purpose such as to render the challenged prans invalid may be inferred from the totarity of relevant facts, incruding a history of raciar discrimination, a racially polarized erectorate, the use of a majority vote requirement, the deviation from substantive reapportionment criteria and the submergence and fracturing of concentrations of black voters with a disproportionately adverse impact on members of the minority voting community. Rogers v. Lodge, supra, 73 L.Ed.2d at 1017, 1024; Busbee v. smith, supra. see state of Mississippi v. U.S., 490 F. Supp. 569 (D.D.C. 1979) aff rd. 444 U.S. 1050 (1980); City of Port Arthur Texas v. United States, Civil Action No. 80-0648, at 58 (D.D.C. June 12, 1981 ), af f rd U. S. , 103 S.Cr. 530 (1982). CONCLUSION fn the seminal case of Zimmer v. [icKeithen, 485 F.2d 1297 ( 5th Cir. 1973) | Judge Gewin recalled follows: If liberty and equality, as is thought by somer €rE€ chiefly to be founded in democracy, they wilI be best attained when all persons alike share in the government to the utmost. Politics, Book II, cited at 485 F.2d at 1300. 30 t,he words of Aristotle as t,l As with the Zimmer case, this Court is being called upon to consider the extent to which the Constitution of the United States and the Voting Rights Act of 1965 compel adherence to the principle of "all persons alike" sharing in government "to the utmost.'r As a consequence of the 1982 amendments to the Voting Rights Act the task of this Court has been made easier. In Section 2t there is now a clear basis for enjoining any election practices or procedures that "are not equally open to participation" by black voters. Plaintiffs will prove at trial that under the challenged 1981 and 1982 reapportionment of the North Carolina General Assembly, they have "less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." Plaintiffs contend that the 1981 and 1982 legislative reapportionments of the North Carolina General Assembly should be enjoined because they have a discriminatory result in violation of Section 2. Plaintiffs will also show that the challenged plans were enacted with a discriminatory purpose in violation of Section 2 and the United States Constitution. 31 !r - Dated: Jul-y Lo, 1983 Respectf u1ly submitted, J. LeVONNE LESLIE J. WINNER Chambers, Eerguson, Watt, Wallas, Adkins & Fuller, p.A. Suite 730 East Independence plaza 951 South Independence Boulevard Charlotte, North Carolina 28202 7041 37s-9461 ,-- i,,,'U, )lll " 1t''Qzttt l -'-l'^u,n .^ 9.-a, -- JACK GREENBERG LANI GUINIER Suite 2030 10 Columbus Circ1e New York, New York 10019 ATTORNEYS FOR PLAINTIFFS 1v"tu 32 r-.' + CERTIFICATE OF SERVICE The undersigned hereby certifies that she has served copies of the foregoing PRE-TRIAL MEMOMNDIIM opposing counsel by hand-delivering copies of same JAI"IES WALLACE , JR. and ROBERT N . HIINTER, JR. This Al aay of July, 1983. A/n l, Attorney this day upon to