Attorney Notes

    No. tll968

lN Tsr

firyrurlw @o:uat rt W aHnfteil fitfrer
Octosen Tenu, 1985

L.lcv H. TxonNsvRG, et al.,
Appellants,

v.

R.lrpn Gn*ctrs, et al.,
Appellees.

ON APPEAL FROM THE
I.JNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

MOTION FOR LEAVE TO FILE AIYD BRIEF OF
SENATORS DENNIS DeCONCINI, ROBERT J. DOLE,
CHARLES E. GRASSLEY, EDWARD M. KENNEDY,

CHARLES MCC. MATHIAS, JR., AND
HOWARD M. METZENBAUM,

Ah[D REPRESENTATIVES DON EDWARDS, HAMILTON
FISH, JR, PETER W. RODINO, JR., AND

F. JAMES SENSENBRENNER
AS AMICI CURUE IN SUPPORT OF 4PPBI T.F'ES

WlrrsR J. Rocxun
(Counsel of Record)
M.mr P. GsncEx
BansARA L. Arwsr.r

AnNoro & Ponren
1200 New Hampshire Ave., N.W.
Washington, D.C. 20036
(202) 872-678e

Attorneys for Amici Cuiae



No. 83-1958

Ix THe

firyretrc 6.s:urr:t rt W JHniteb f;tatw
Ocronnn TEnu, 1985

Llcv H. Tgonxnunc, el al.,
Appellants,

v.

Rr.rpg GlNcLEs, et al.,
Appellees.

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

MOTION OF SENATORS DENNIS DeCONCINI'
ROBERT J. DOLE, CHARLES E. GRASSLEY'

EDWARD M. KENNEDY, CHARLES MCC. MATHIAS' JR.'

AND HOWARD M. METZENBAUM' AI{D
REPRESENTATIVES DON EDWARDS, HAMILTON

FISH, JR., PETER W. RODINO, JR., AhID
F. JAMES SENSENBRENNER

FOR LEAVE TO FILE' AMICUS CUR.II^E'BRIEF ON
' BEHALF OF APPELLEES

Amici curiae are members of the United States congress

who were principal co-sponsors and supporters of am91^d^ed

Section 2 oithe Voting Rights Act. 42 U'S'C' $ 1973 (1982)'

Pursuant to Supreme Court Rule 36'3, amici respectfully

request leave to file the accompanying amicus brief'+

r Appellees have consented to amici's panicipation in this case. Appel-

lans. however, have denied consent'



As members of the United States Senate and House of
Representatives and the respective Judiciary committees of the
Senate and House, and as key co-sponsors of amended Section
2, amici are vitally interested 

-in 
ensuring that the voting nigrrts

Act is properly interpreted. The position taken by the 5o[Jtor
General and appellants in rhis case is incoirsistent with the
literal provisions of Section 2. Moreover, it discounts the
importance of the Senate Report, the key source of legislative
history in this case. we are ooncerned both with preseriing the
integrity of congressional committee Reports 

-and 
ensriring

that Sectioo 2 of the Voting Righs Act ls preserved as an
effective mechanism to ensure that people of all races will be
accorded an equal opportunity to participate in the political
processes of this country and to elect representatives Lr th"i.
choice.

The accompanying brief undertakes a detaired review of
the language and legislative history of amended Section 2 of the
voting Rights Act, issues that the parties will not address in the
same demil. Thus, amici believe that the perspective they bring
to the issues in this case will materially 

"ia tne court in
reaching its decision.

Memben of the House of Representatives and Senate have
participated as amici curiae in numerous cases before this coun
involving issues affecting the legislative branch, both by motion,
e.9., Unitcd States v. Helstoski, 442 U.S. 477 (19i9;, and
@nsent, e.g., National Organization for Women v. Idaho, 455
u.s. el8 ( te82).

For the foregoing reasons, amici respectfully request leave
to file the accompanying amicus brief.

Respectfully submitted,

WlrrEn J. Rocxun
(Counsel of Record)
Mrnx P. GsnceN
Brnnene L. Arwru

Anxolo & Ponrrn
1200 New Hampshire Ave., N.W.
V/ashington, D.C. 20036
Telephone: (2O2) 872-6789

Attorneys lor Amici Curiae

Dated: August 30, 1985



No.83-1968

Ix Tnr

$ryrurrc 6.mrrt of W JHniteD fitates

Ocrosnn TSRM, 1985

Llcv H. TnonNnunc, et al.,
Appellants,

v.

Rerpn GTNGLES, et al.,
Appellees.

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

BRIEF OF SENATORS DENNIS DeCONCINI, ROBERT J.
DOLE, CHARLES E. GRASSLEY, EDWARD M. KEN.
NEDY, CHARLES McC. MATHIAS, JR- AM HOWARD
M. METZENBAUM, AND REPRESENTATIVES DON ED.
WARDS, HAMTLTON FISH, JR., PETER W. RODINO,
JR., AND F. JAMES SENSENBRENNER AS AMICI

CURIAE IN SUPPORT OF APPELLEES



i

TABLE OF CONTENTS

STATEMENT OF INTEREST
SUMMARY OF ARGUMENT ...........
ARGUMENT............

I. TO ASSUME COMPLIANCE WITH SEC.
TION 2 UPON EVIDENCE OF SOME ELEC.
TORAL SUCCESS BY MEMBERS OF A MI-
NORITY GROUP VIOLATES THE LITERAL
REQUIREMENTS OF THAT PROVISION;
EVIDENCE OF SOME ELECTORAL SUC-
CESS MUST BE VIEWED AS PART OF THE
.TOTALITY OF CIRCUMSTANCES'' TO BE
coNsIDERED.........

N. THE LEGISLATIVE HISTORY OF THE 1982
AMENDMENTS AND THE PRE-BOLDEN
C.[SE LAW CONCLUSIVELY DEMON-
STRATE THAT A VIOLATION OF SECTION
2 MAY BE FOUND ALTHOUGH MEMBERS
OF A MINORITY GROUP HAVE EX-
PERIENCED LIMITED ELECTORAL SUC.
cEss
A. The Legislative History The Majority

Statement in the Senate Report Specifi-
cally Provides that Some Minority Group
Electoral Succcss Does Not Preclude a
Section 2 Claim if Other Circumstances
Evidence a Lack of Equal Access

B. The Majority Statement in the Senate Re-
port Is an Accurate Statement of the Intent
of Congress with Regard to the 1982
Amendments ...............
l. The Majoriry Statement in the Sen-

ate Report Plainly Reflects the Intent
and Effect of the Legislation

2. As a Matter of Law, the MajoritY
Statement in the Senate RePort Is
Entitled to Great Respect.....

III. THE DISTRICT COURT APPROPRIATELY
LOOKED TO THE TOTALITY OF CTRCUM-
STANCES INCLUDING THE EVIDENCE OF
SOME BLACK ELECTORAL SUCCESS TO
DETERMINE WHETHER BLACKS HAD
EQUAL OPPORTUNITY TO PARTICIPATE
IN THE ELECTORAL SYSTEM; THE
COURT DID NOT REQUIRE PROPOR-
TIONAL REPRESENTATION...

coNCLUSION ..........

Prgc

I
2
5

l4

l5

20

23
30



'll

TABLE OF AUTHORITIES

Crsss
Beer v. United States, 374 F. Supp. 363 (D.D.C.

1974), rev'd on other grounds,425 U.S. 130 ( 1976)

Chandlerv. Roudebush,425 U.S. 840 ( 1976)

City Council of Chicago v. Ketchum, 105.S. Ct.2671
( less )................

City of Mobilev. Bolden,446 U.S. 55 ( 1980)

Garcia v. Ilnited States, 

-U.S.--_ 
105 S. Ct.

47e (te84)
Gingles v. Edmisten, 590 F. Supp. 345 (E.D.N.C.

1984)
Graves v. Barnes, 343 F. Supp. 704 (W.D. Tex.

1972)
Graves v. Barnes, 378 F. Supp. 641 (W.D. Tex.

1974)
Grove City College v. Bell, 

--U.S..------.- 
104 S. Ct.

12l I ( 1984)
Kirtcsq v. Boord of Supenisors, 554 f.2d 139 (5th

Cir.), cert. denied,434 U.S. 968 ( 1977)

Maine v. Thiboutot, M8 U.S. I ( 1980l, quoting TVA
v. Hill,437 U.S. 153 ( 1978)

McCain v. Lybrand, No. 74-281 (D.S.C. April 17,

r98o)
McMillan v. Escambia County, 748 F.2d 1037 ( I lth

Cir. 1984).

Monterq Coal v. Federal Mine Sa{ety -{. H^ealth
Review Commission,T43 F.2d 589 (7th Cir. 1984) . '

Narional Association of Greeting Card Publishers v.

United States Postal Service,462 U.S. 810 ( 1983)..

National Organization for Women v- Idaho,455 U.S.
9l 8 ( re82 )................

North Haven Bd. of Education v. Bell,456 U.S. 512
( r e82 )................

Sperling v. United States, tll f 29 465 (3d Cir.- 
1975), cert. denied,462 U.S. 919 ( 1976)

IJnited States v. International Union of Automobile
Workers,352 U.S. 567 (1957)

lll

Prgc

Prgc IJnited States v. Dallas County Comm'n, 739 F.2d
1529 ( I lth Cir. 1984)

United States v. Helstoski, 442 U.S. 477 ( 1979)

United States v- O'Brien,39l U.S. 367 ( 1968 )
United States v. Marengo County Comm'n,731 F.2d

1546 ( I lth Cir.), cert. dqnied, 

-U.S.-, 
105

S. Ct. 375 ( 1984)

Velasquez v. City of Abilene, 725 F.2d l0l7 ( 5th Cir.
r984)

Whitcomb v. Chavis,,lO3 U.S. 914 ( l97l )...................
Whire v. Regester, 412 U.S. 755 (1973).......................

Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir.
1973\, af'd sub nom. East Carroll Parish School
Bd. v. Marshall,424 U.S. 636 (1976)

Zuberv. Allen,396 U.S. 168 ( 1969)

Srrrtrrrs
Voting Rights Act Amendments of 1982, Pub. L. No.

97-205

42 U.S. $ 1973

Mrscrtr.txuous
Voting Rights Act: Hearings Before the Subcomm. on

the Constitution of the Senate Comm. on the ludi-
ciary, Yol. II, 97th Cong., 2d Sess. ( 1982) ...............

Voting Rights Act: Hearings Before the Subcomm. on
the Constitution of the Senate Comm. on the Judi-
ciary, Yol. I, 97th Cong., 2d Sess. ( 1982).................

Report of the Senate Judiciary Committee on
S. 1992, S. Rep. No. 417, 97th Cong., 2d Sess.
( le82 )................

Report of the House Committee on the Judiciary on
H.R. 3112, H.R. Rep. No. 227, 97th Cong., lst
Sess. ( l98l )

128 Cong. Rec. 57139 (daily ed. June 18, 1982).........
128 Cong. Rec. 57091-92 (June 18, 1982)...................

128 Cong. Rec. S7095 ( daily ed. June 18, 1982 ).........

l3
20,21

l4
passim

20

passim

t2

l3

22

13,23

7

t2

20,24,
25,26

20,25,26

2

20

passim

7,lo,2o

il
passim

passim

20

passim

2

1 5,16

ll

passim

9

t4
l9
t8

2l

2l

2

22

2l

20



lv

Prgc No.83-1968

IN THE128 Cong. Rec. 57095-96 (June l8' 1982)"'

128 Cong. Rec. 56995 (daily ed. June l7' 1982)""""'

128 Cong. Rec. 56991, 56993 (daily ed' June 17'

re82)

128 Cong. Rec. 56960-62, 56993 (daily ed' June l7'
I 982 ) ...........:......

128 Cong. Rec. 56941'4/,,56967 (daily ed' June 17,

r982)

128 Cong. Rec. 6939-4O (daily ed' June 17, 1982)"""

128 Cong. Rec. 56930-34 (daily ed. June 17, 1982) "'
128 Cong. Rec. 56919-21 (daily ed' June 17, 1982) "'
128 Cong. Rec. 56781 (daily ed. June 15, 1982)""""'

128 Cong. Rec. 56780 (daily ed. June l5' 1982)""""'

128 Cong. Rec. 56646-48 (dailyed' June 10, 1982) "'
128 Cong. Rec. 56553 (daily ed. June 9,1982)"""""'

128 Cong. Rec. H3841 (daily ed. June 23,1982)""""

128 Cong. Rec. H3840-41 (dailved' June 23'1982) "

l9
l9

l9

l9

l9
l9
l9
l9
r8

l8
l9

17,18

r9

t7

fitryrarre fi.ourt rt W U"it b filxtax
Ocrorsn Trnu, 1985

Lrcv H. THonxsvRG, et al.,
Appellants,

v.

Rerpn GTNGLES, et al.,
Appellees.

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRTCT OF NORTH CAROLINA

BRIEF OF SENATORS DENNIS DeCONCINI, ROBERT J.
Dof.tr',, CHAR.LES E. GRASSLEY, EDWARD M. KEN.
NEDY, CHARLES McC. MATHIAS, JR., AIYD HOWARD
M. METZENBAUM, AI{D REPRESENTATIVES DON ED.
WARDS, HAMILTON FISH, JR., PETER W. RODINO,
JR- AND F. JAMES SENSENBRENNER AS AMICI

CURIAE IN SUPPORT OF APPELLEES

Senators Dennis DeConcini, Robert J. Dole, Charles E.

Grassley, Edward M. Kennedy, Charles McC. Mathias, Jr., and
Howard M. Metzenbaum, and Representatives Don Edwards,
Hamilton Fish, Jr., Peter W. Rodino, Jr., and F. James
Sensenbrenner hereby appear as amici curiae pursuant to the
motion filed herewith.

STATEMENT OF INTEREST

This case presents an important issue of interpreting the
Voting Rights Act Amendments of 1982, Pub. L. No. 97-205, as



2

they pertain to Section 2 of the Voting Rights Act' 42 U'S'C'

srgz3.AsmembersoftheUnitedStatesHouseofRepresenta.
tives and senate, amici are vitally interested in this case, which

could determine whether section 2 is to be preserved as an

effective mechanism to ensure that people of all races will be

accorded an equal opportunity to participate in the political

fro".rr". of this *un1ry and in the election of representatives

of ,fr"i, choice. This case also raises an important question of

the weight to be given congressional committee reports by

which the intent underlying a statute is expressed'

MembersoftheHouseofRepresentativesandSenatehave
participatedasamicicuriaeinnumerouscasesbeforethisCourt
involving issues affecting the legislative branch, both by motion'

€.8., Uited States v.-Helstoski, 442 U'S' 477 (1979)' and

.o.r"rr,, e.g., National Organization for Women v' Idaho' 455

u.s. 918 ( 1982).

SUMMARY OF ARGUMENT

As the authom and principal proponens of the 1982

amendmentstoSection2,ourprimaryconcerninthiscaseisto
ensure that Section 2 is interpreted and applied in a manner

consistent with congress'intent. The Solicitor General and the

appellants contend that the district court's finding that the

.["nrng.a multimember legislative districts violated Section 2

of the 
-voting Nghts Act ..cannot be reconciled,, with the

evidence of some ,1""o, electoral success by black candidates in

thosedistricts.BrieffortheUnitedStatesasAmicusCuriae24,
28.

The three-judge district court, using the "totality of circum-

stances" analyiis Lade relevant by Section 2' found blacks

weredeniedanequalopportunitytoparticipateinthepolitical
p-1.., in the chaliengJdistricts on the basis of a wide variety

off""too.Itconsideredtheevidenceofelectoralsuccessat
tength in is opinion, and found such successes to be "too

min-imalintotalnumbers''andof..toorecent''vintageto
support a finding that black candidates were not disadvantaged

3

because of their race. Gingles v. Edmisten, 590 F' Supp' 345'

ioz (r.o.N.C. lgg4). Appellants and the Solicitor General, on

the other hand, ascribing definitive weight to a single factor,

".gu"that..giventheprovenelectoralSuccessthatblack
""iaia",.r 

have had under the multimember system," no

violation of section 2 can be established. Brief for the united

States as Amicus Curiae 28.

TheSolicitorGeneralandappellantsseeminglyaskthis
court to rule that evidence of recent, and limited, electoral

success should be preclusive of a Section 2 claim' though

evidence of other factors overwhelmingly may compel a finding

that blacks are denied an equal opportunity to participate in the

political process. This position is contrary to the express terms

of S."tion 2, which r-quires a comprehensive and realistic

analysis of voting righs claims, and it could raise an artificial

Uarrier to legitimate claims of denial of voting righs which in

some ways would pose as significant an impediment to the

enforcemlnt of Section 2 as the specific intent rule of City of
Mobite v. Bolden,446 U.S. 55 ( 1980), rejected by Congress in

1982.

To assume that some electoral success by some members of
a minority group, no matter how limited or incidental such

success may be, conclusively evidences an equal opportunity for

members of that group, confuses the occasional success of black

candidates with the statutory guarantee of an equal opportunity

for black citizens to participate in the political process and to

elect candidates of their choice. Experience, as documented by

the pre-Bo lden case law, proves that the systematic denial of
full and equal voting rights to blacks may be accompanied by

the sporadic succesi of some blacks in primary or general

elections. As the courts have uniformly recognized, the vice of
the dehial of equal voting rights to a minority group is not

obviated by such token or incidental successes of its members'

Most importantly, the position advocated by the Solicitor

General and appellants is inconsistent with the literal language

of Section 2, and was expressly rejected by Congress when it

considered the 1982 amendments, as is made clear in the



Report of the Senate Judiciary Committee on S. 1992, S. Rep.

No. 417, 97th Cong., 2d Sess. ( t982) (hereinafter the "Senate
Report"). This Report cannot be treated as the view of "one
faction in the controversy," as argued in the amicus brief of the

Solicitor General ( Brief for the United States as Amicus Curiae
8 n.l2), in the facc of clear evidence that the Report accurately
expresses the intent of Congress generally, and importantly of
the authors of the compromise legislation that was reported by
the Senate Judiciary Committee and enacted, essentially un-

changed, into law.

If this Court were to discount the importance of the views

expressed in the Senate Report, it would have significance
beyond this particular case. A majority of the Judiciary
Committee sought to provide, in the Senate Report, a detailed
statement of the purpose and effect of the 1982 amendments.

That statement was relied upon by members of the Senate in
approving the legislation, and by members of the House in
accepting the Senate bill as consistent with the House position.

This Court should not cut the t982 amendments free from their
legislative history, and adopt an interpretation of that legisla-
tion inconsistent with the view of the congressional majority.
To do so would undermine firmly established principles of
interpretation of Acts of Congress, and sow confusion in the

lower courts that are so olten called upon to determine the

legislative intent of federal statutes.

The Voting Rights Act Amendments of 1982 were in-
tended to reinstate fair and effective standards for enforcing the

rights of minority citizens so as to provide full and equal
participation in this nation's political and electoral processes. In
1982, Congress had before it an extensive record showing that
much had been accomplished towards this end since the Voting
Rights Act was adopted in 1965, but that much more remained
to be done. In construing and applying Section 2, the Court
should be mindful of Congress' remedial goal to overcome the

various impediments to political participation by blacks and

other minority grouPs.

5

ARGUMENT

I. TO ASSUME COMPLIANCE WITH SECTION 2
UPON EVIDENCE OF SOME ELECTORAL SUCCESS
BY MEMBERS OF A MINORITY GROUP VIOLATES
THE LITERAL REQUIREMENTS OF THAT PROVI-
SION; EVIDENCE OF SOME ELECTORAL SUCCESS
MUST BE VIEWED AS PART OF THE 'TOTALITY
OF CIRCUMSTANCES" TO BE CONS-IDERED

The evidence of some electoral success by blacks in the
challenged districts in North Carolina is not dispositive of a
Section 2 claim, as is evident from the plain language of the
statute. t Section 2 requires that claims brought thereunder be
analyzed on the basis of the "totality of circumstances" present

I We make no efort hcrein to statc the facts at issue in this case in a
complete manneri though wc do note thc limited narure of black eleaoral
3uooess as presented in the district @urt's findings:

Housc Dilrrict No. 36 ( Mccklenburg County) and Senare District No. 22
(Mecklenburg and Cabamrs Counties)-Only rwo black candidates have
won elections in this ccntury. One black won a seat in the eight member
Housc delegation in 1982 after this litigation vas ffled ( running without white
opposition in the Democratic primary), aad one scrved in the four-member
Senate delegation from 1975-1980. This limited success is offser by frequent
electoral dcfear. In House Disria 36, scven black candidates havc tried and
failed to win sear from 1965-1982, and in Senate Disrrict 22 black candidates
failed in bids for sear in l98O and 19E2. Blacks comprisc approximately 25
peroent of the poputation in these Disrricrs. 590 F. Supp. ar 357, 365.

House District No. 39 ( parr of Forsyth County)-The firsr black to serve
as onc of the five-membcr delegation served from 1975-1978. He resigned in
1978 and his appoinred suooessor ran for reelection in 1978 but was dcfeated;
a black candidate was also defeated in 1980. In I 982, after this litigation was
filcd, two blackr wcre elected to thc Housc. This pattern of etectioa, followed
by dcfeats, mirrors elections for the Board of County Commissioners, in which
the only black ele&ed was defeated in her first reelection bid in 1980, and for
clections to the Board of Education, in which the first black elected was
defeated in his bids for reelcaion in t978 and 1980. Blacks comprise 25.1
pcrcrnt of the County's population. 590 F. Supp. at 357, 366.

House District No. 23 (Durham County)-Sincc 1973, one black has
been elcaed to the three-member delegation. He faccd no white opposirion

(fatnotc continucs)



6

in the challenged district. The focus is on whether there is equal

access to the process. The extent of past black electoral success

is only one relevant circumstance-

The controlling provision is Section 2(b), which states:

"A violation of subsection ( a) is established if, based

on the totality of circumstances' it is shown that the

potitical processes leading to nomination or election

in the State or political subdivision are not equally

open to participation by members of a class of
citizens protected by subsection (a) of this section in

that its members have less opportunity than other

members of the electorate to participate in the politi-

cal 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

Le consideredz ProYided, That nothing in this section

establishes a right to have members of a protected

class elected in numbers equal to their'proportion in

the population."

This express statutory provision clarifies that the "extent to

which .".b"^ of a protected class have been elected to office

in the State or political subdivision is one circumstance which

may be considered . . . ." obviously, other factors which com-

prise the ..totality of circumstances" surrounding the political

p.o".r, must also be considered, as they were by the district

court in finding a violation of Section 2 here. .see section III,

(footnotc continucd)

in the primary in 1980 or t982 and no substantial opposition in the general

elcction cirher of those yean. Blacks oonstitute 36.3 percent of the population

ofthe county. 590 F. Supp. at 357,366,370'71'

HouscDirriaNo.2l(wakeCounry)_Thefirsttimeinthiscenturya
black candidatc successfully ran for the six-member delegation was in 1980.

Thar same candidate had bcen defeated in t978. Blacks omprise 21.8

pcrccnt ofthe population ofthe county. 59O F' Supp' at 357' 366' 371'

Housc Districr No. 8 (Wilson, Edgecomb and Nash Coundes)-No

black wac cver etected to scrve from this four-member district although it is

39.5 pcrcent black in population. 590 F' Supp' at 357, 366' 371'

7

infra. Electoral success is a relevant criterion, but not the sole

or dominant concern, as posited by the Solicitor General.2

As will be shown below, the primary reason Congress

adopted Section 2(b), which originally was offered as a

clarifying amendment by Senator Dole, was to ensure that the

focus of the Section 2 "results" standard would be on whether
there was equal opportunity to participate in the electoral
process.

The statutory language necessarily contemplates that a

Section 2 violation may be proven despite some minority
candidate electoral success. The focus on the "extent" of
minoriry group electoral success contemplates gradations of
success-from token or incidental victories to electoral domina-
tion-and makes clear that a violation of Section 2 may be

proven in cases where some members of the group have been
elected to office, but the group nevertheless has been denied
a full-scale equal opportunity to participate in the political
process. s

Because Section 2 is plain on its face, it should not be

necessary to look further to the legislative history. Maine v.

Thiboutot,448 U.S. l, 6 n.4 ( 1980), quoting TVA v. Hill, 437

z The Solicitor General seems to sug8est that black electoral success in
rough proportion to thc black proponion of thc population should be
preclusive of a Scction 2 claim. Brief for the Unitcd States as Amicus Curiae
2+25. At most, this argumeot appcars rclcvant only to House District No. 23

(Durham County), and, in any eventt is plainly inconsistent with Congress'
clearly stated intent that Section 2 claims should not dcpend upon the race of
elected officials. Seaion 2 sceks to deflect exccssive conclrn with the racial or
ethnic identiry of individual officeholden and. instead, to focus attention
where it propcrly belongs: on the existence of an equal opportunity for
memben of thc minority group to participate in the political proccss and to
elect rcpresenratives of their choicc.

3 Consistent with this clear statutory mandatc, and the legislative history
discussed below. rhc lower courts which have considered this issue all have

expressly rcjected the position espoused by the Solicitor General and appcl-
tants. lJnited Srares v. Marcngo County Comm'n,731 F.2d 1546, l57l-72
(llth Cir.), ccrt. dcnicd, 

-U.S.-..-.-..-- 

105 S. Ct. 375 (1984) ("lt is

equally clear that the election of one or a small number of minority elected

officials will not compcl a finding of no dilution."l; Velasquez v. City of
Abilene,725 F.2d l0l7,lO22 (5th Cir. 1984).



8

U.S. 153, 184 n.29 ( 1978). Nevertheless, we will examine that

history because it confirms, in the most unequivocal terms' the

inteni of Congress that the extent of minority group electoral

success be analyzed as a part of the totality of circumstances

from which to measure thC openness of the challenged political

iy*"rn to minority group participation' Further' that history

provides an importairt indication of the manner in which such

lnalysis should be undertaken, and supports the analysis and

conclusions of the court below'

III. THE LEGISI.ATIVE HISTORY OF THE 1982

AMENDMENTS AF{D THE PRE.BOLDEN CASE LAW

CONCLUSIVELY DEMONSTRATE THAT A VIOLA'

TION OF SECTION 2 MAY BE FOUND ALTHOUGH

MEMBERS OF A MINORITY GROUP HAVE EX'

PERIENCED LIMITED ELECTORAL SUCCESS

A- The Leglsletive History: The Maiority Statement in

the Senate Report Speciftcally Provides that Some

Mlnorlty Grorrp Electoral Success Does Not Pre-

clude a Sectlon 2 Claim if Other Circumstances

Evidence e Lcck of Equel Aceess

The legislative history of the 1982 amendments shows very

clearly thai Congress did not intend that limited electoral

,u"".., by a minority would foreclose a Section 2 claim' This

in*n, is most plainly stated in the Senate Report' but a similar

intent also is.ria.ri from the House deliberations, the individ-

ual views of members of the Senate Judiciary committee

"pp."a"a 
to the Senate Report, and the floor debates in the

Senate.

The 1982 amendments originated in the House' which

initiallydeterminedthattheBoldenintenttestwasunworkable'
and that it was necessary to evaluate voting rights claims

9

brought under Section 2 on the basis of " I a ]n aggregate of
objective factors." r Repoft of the House Committee on the

Judiciary on H.R.3l12, H.R.Rep.No.227,97th Cong., lst

Sess. 30 ( l98l) (hereinafter the "House Report"). As would

the Senate, the House rejected the position that any single

factor should be diterminative of a Section 2 claim. The House

Report noted that ..Ialll of these Idescribed] factors need not

be proved to establish a Section 2 violation." Id. at 30' Thus,

while the House bill did not by its terms require the consid-

eration of the "totality of circumstances," that plainly was the

intent of the House.

The Senate refined the House bill, and made explicit the

intenr that Section 2 claims be addressed on the basis of the

"totality of circumstances." This refinement came about be-

cause of a compromise authored by Senator Dole and others,

the import of which will be addressed in detail below. Of
immediate significance, though, is the fact that the Senate

Report explaining this compromise expressly dealt with the

issue of the significance of minority group electoral succ€ss to

Section 2 claims. lndeed, the intent of the Committee with
regard to the handling of this factor was expressed more than

once.

The Senate Report includes, as one "typical factor" to
consider in determining whether a violation has been estab-

lished under Section 2, "the extent to which members of the

minority group have been elected to public office in the
jurisdiction." Senate Report at 29. Additional important
commentary with regard to this factor is then provided:

"The fact that no members of a minority group have

been elected to office over an extended period of time

r Relevant factors, drawn from thc Court's decision in White v, Regester,

412 U.S. 755 (1973), and its progeny included "a history of discrimination
affeaing the right to vote, racially polariry [sicl voting which impedes the

ele6ion opportunitics of minority group memben, discriminatory elcments of
the ele6oral system such as at-large electionc, a majoriry voie requirement, a

prohibition on single-shot voting, and numbered posa which enhance the

opportuniry for discrimination, and discriminatory slating or the failure of
minorities to win party nomination." House Repon 30.



lu

is probative. However, the election of a few minority
candidates does not 'necessarily foreclose the possi-
bility of dilution of the black vote,'in violation of this
section. Zimmer 485 F.2d at 1307. If it did, the
possibility exists that the majority citizens might
evade the section e.g., by manipulating the election of
a'safe'minority candidate. 'Were we to hold that a
minoriry candidate's success at the polls is conclusive
proof of a minority group's access to the political
process, we would merely be inviting attempts to
circumvent the Constitution. Instead we shall
continue to require an independent consideration of
the record.'Ibid."Senate Report at 29 n.l15. (Ref-
erences are to Zimmer v. McKeithen, 485 F.2d 1297
(5th Cir. 1973), afd sub nom. East Canoll Parish
School Bd. v. Marshall,424 U.S. 636 ( 1976).)

No clearer statement of the intent of the Committee with regard
to this issue seems possible. See Velasquez v. City of Abilene,
725 F.2d l0l7, lO22 (5th Cir. 1984) ("In the Senate Report
. . . it was specifically noted that the mere election of a few
minority candidates was not sufficient to bar a finding of voting
dilution under the results test.").5

Further, this analysis, and its reliance on Zimmer v.

McKeithen, 485 F.2d at 1307, is consistent with the express
view of the Committee that " Itlhe 'results' standard is meant to
restore the pre-Mobile legal standards which governed cases

s The Solicitor General suggests that this statement indicates that minor-
ity group elcctorel succeslt rrill not defeat a Seaion 2 claim only if it can be

shown that such success was the rcsult of the majority "engineering the

election of a 'safe' minority candidate." Brief for thc United States as Amicus
Curiae 24 n.49. Amici, who were integrally involved in writing the Senate

Report, view this statemcnt as providing an example s,hich illustrates why
somc success should not be dispositive, not a legal rule defining the only
circumstance wherc it is not. Of coursc, there are numerous other reasons why
some electoral success might not evidence an equality of opponunity to
participate in the electoral process. For example, as in the instant case, the

ability to single-shot vote in multimember districrs may producc some black
officeholders, but at the expense of denying blacks the oplrcnunity to vote for
a full slate of candidates. Sec 590 F. Supp. at 369.

ll

challenging election systems or practices as an illegal dilution of
the minoriry vote. Specifically,.subsection (b) embodies the
test laid down by the supreme court in white [v. Regester, 412
u.s. 755 (1973)l."senate Report at27.o rhis reriance on pre-
Bolden case law is imponant, for it was firmly established under
that case law that a voting rights violation could be established
even though members of the plaintiff minority group had
experienced some electoral success within the chalGnged sys-
tem.

The Committee was acutely aware of this precedent.z
lndeed, in the case set by congress as the polestar of section 2
analysis- white v. Regester-a voting rights denial was found
by this court despite limited black and Hispanic electoral
success in the challenged districts in Dallas and Bexar counties
in Texas. Senate Report at 22.8

t rherc can bc no doubt that this was the view of a congressionar
majoriry as well. Thus, in his additional views, Senator Dole rema-rked that
'1he new subsection [ 2( b ) I codifies the legal standard artictlated rn whitc v.
Regester, a standard which was first applied by the Supreme Coun in
|uhitcomb v. chavis, and which was subsequentry appried in somc 23 Federat
courts of Appcals decisions." senate Report at 194. senator Gra*sley, in his
supplemental views, similarly remarked that.'the new language of Seairon 2 is
the tesr utilized by the Suprrme Coun in Whire." Id. at 197.

u The Senate Report states:

"what has bcen the judicial track record under the .resurts test?
That reord received intensive scrutiny during the Committec
hearings. The Committce reviewed not only the Supreme Coun
decisions in WhitecomD [sicl and White, bur atso some 23
reponed vote dilution cases in which federal couns of appeals,
prior to 1978, followed Whitc.,,Senate Report at 32.

A list and analysis of thcse 23 cases appea* in Voting Rights Acr:
Hearings Belorc thc subcomm. on the consilrution of the senati coim. of the
tudiciary, Vol. I, 97th Cong., 2d Sess. 12 I 6_26 ( I 9g2 ) ( hcreinafter ..I Senare
Hearings") (appendix to preparcd starement of Frank R. parker, director,voting Righa Projecr, Lawyers'commi*ee for civil Righs under irro t"*y.
- 

a rhe senate Repon cites the ponion of this counis opinion in white v.
Regester wherein it was 

^obscrved 
that "[slince Reconstruction, onry two

black candidates from Daflas county had becn etected to the Texas House or
Representarives, and thesc two were thc onry bracks ever srated by the Dartas
committee for Responsibre Government, white-dominated srating group.,,

(footnote continues)



t2

The Committee also expressly relied upon the opinion of

the Fifth Circuit Court of Appeals in Zimmer v' McKeithen'

which it described as "Itlir. seminal court of appeals

decision. . . subsequenUy raieA upon in the vast majority of

nearly two dozen repoft;d dilutioncases'" Senate Report ar23'

ii Zi^^"r, the Circuit Court found inconclusive the fact that

threeblackcandidateshadwonseatsinthechallengedat.large
districtsincetheinstitutionofthesuit.TheCourtreasonedthat
while the appellee urged that "the attendant success of three

black candidates, diciated a finding that the at-large scheme did

oot i1 fact dilute the black rote. . . . [w]e cannot endorse the

view that the success of black candidates at the polls necessarily

r*""to,",ttrepossiuilityofdilutionoftheblackvote.''485F.2d
ar 1307.

Similarly, the Committee considered with approval a re-

cent case involving Edgefield County' South Carolina' rn'here

priortoBolden"roting-tightsviolationhadbeenfound'despite
limited black electoraisuccess, because "lbllack participation

in Edgefiela Cot niv ias been T"I:l{ tokenism and even this

has been on " 
,".y'small scale '" McCain v' Lybrand' No' 74-

(fatnotc continucd)

4l2U.S.atT66.6l.Thedecisionofthedistrictcourtindicatesrhatthefirstof
thcse candidetcs ran in isto, and thar rhey were scrc,ctcd by rhe white-

dominsted Dallas Commititi r"t Responsible Govcrnment without the

participation of the black community' Gravcs v' Barncs' 343 F' Supp' 704'

726 (W.D. Tex. [|nl, aii in part and revd in pdr' sub nom' Witc v'

Rcgcstcr,4l2 U.S. 755 ( l9?3)'

A similar point was madc with respcct to Hispanic sucrccss in- Bexar

County, whcre " I o InIy i""' Ut*ion-Americans since t 880 havc scrved in the

Texar Legislarure trom Bl*ii c"untv' Of thcse' only two were from thc

barrio area.,. 412 U.S. "i 
iii-OS. Tire district court indicared that four of

these five were elected Jer fgeo' Graves v' Barncs' 343 F' Supp' at112'

Thefindingsirt [..|nitcv.Regcsterseemunnemarkablcuntilitisrealized
that in rhe instant *o ,t 

" 
,"." i. a lesser showing of black electoral success

in all of thc districts h";; "i 
issue (except House District No.23), is bcing

relied upon as concrusivc evidencc that no voting righrs violation has

occurred.

l3

281, slip op. at 18 (D.S.C. April 17, 1980), quoted at Senate

Report 26.s

There is absolutely no indication in the legislative history

th* any member of either House of Congress thought that

evidence of minority group electoral success should be pre-

clusive of a Section 2 claim. The solicitor General and

appellants recite at some length numerous statemenB to the

effect that Section 2 was not meant to require proportional

representarion. This point is made on the face of the statute,

and there is no question that section 2 does not require that

minority group representation be, at a minimum, equal to the

group's percentage of the population. However, the finding of
a violation of Section 2 in the face of some minority group

electoral success does not depend upon a rule requiring
proportional representation. Rather, as the reasoning of the

court below illustrates, the finding of a violation depends upon

the assessment of the "totality of circumstances" to determine

whether members of the minority group have been denied an

equal opportunity to participate in the political process and to

e In addition, there are other pre-Boldcn decisions of similar import not

specifically addressed in the Senate Report or in thc floor debates. So, in one

of rhe 23 appellare decisions studied by the committee, the Fifth circuit
Court, rejectiog I reapportionment plan ordercd by the district court because

it left the chanccs for black sucoe$i unlikely, nored is oontinuing adherencc to

the Zimmcr rulc: "we add thc caveat that the election of black candidates

does not automatically mean that black voting strength is not minimized or

canccled out." Kirksq v. Board of Supcrtisors, 554 F.2d 139' 149 n-2 I ( 5th

Cir.\, cert. denicd,434 U.S. 968 ( 1977).

This rule of common scnsc sas respected by the district @uns. For

example, in Gravcs v. Barncs,378 F. Supp. 641, 659-61 (W.D. Tex. 1974)'

the coun concluded that the reccnt election of Hispanics to thc Texas Housc

of Representatives and to thc school board did not frustratc a voting rights

claim.

Similarly, a district court refuscd in Beer v. United States, 374 F. Supp.

363 ( D.D.C. 197 4'1, rev'd on othcr grounds, 425 U.S. I 30 ( 1976 )' to deem the

ciry of Ncw Orleans to bc entitted to pre-clearance under Sc6ion 5 despite a

showing that fiour blacks recently had won clcctive office in the municipality.
Although the Scction 5 retrogression standard differs from the Section 2

standard, Bcer is relevant to the case at hand in that thc Court reognized that

minority candidare suoceis can be attributable to factors other than equal

acoess to the eleaoral process by minority group members.



l4

electrepresentativesoftheirchoice.Thedisproportionalityof
minority group representation is, at most' one factor in the

analysis.

B. The Maiority Statement in the Senate Report Is an

AccurateStatementofthelntentofCongresswith
Regard to the 1982 Amendments

The Solicitor General appears to believe that Congress

intended to adopt in 1982, the rule rcjected in Zimmer v'

McKeirhen, drawing from certain statements by amicus Senator

Dole and others that Section 2 was not intended to require

proportional representation, an inference that a Section 2 claim

is foreclosed wherever limited electoral success is shown. see

Brief for the United States as Amicus Curiae I l-14'10

In making this argument, the Solicitor General also argues'

as he did in another-re"ent appeal to this Court regarding a

Section 2 claim, City Council oi Chicagov' Ketchum' 105 S' Ct'

2673 (1985), that tLe Senate Report is not determinative of the

intent of Congress, and attachis greater significance to the

individual views of amici Senators Dole and Grassley' and

SenatorHatch.rrBrieffortheUnitedStatesasAmicusCuriae,

roThesolicitorGeneralalrccitestheRcportofthesubcommitteeonthe
Constitution to thc Scnare Committee on the Judiciary on S' 1992'97th Cong''

2d Se$. ( 1982) ("subcommittce Repon")' The Subcommittce Report does

nor reflcct, nor does ii-purp"n to ieflect, the views of thc Congressional

,iiori.y who favored oi"'tu'ing the Boldcn intent tcst "{-:l1YT :
,".uto ior,. Id. at2o_52. At the timc the Subcommittce Report was wntten' a

3-2 majoriry of the Scnatc Subcommittee supportcd existing law' a position

;q;"..ly rele"ted Uy tt " 
fuu Commirtee and by the Scnate as a who.le' The

Chairman of thc Subcommittee-Scnator Orrin Hatch-opposed thc Dolc

compromiscandvorcdforthebillultimatelyenactedonlywithgreat
reluctancc,continuingtostateuntilthefinalvoteonthebillhisview..that
thescamendmcntspromisetoefrecta,dcstrucrivetransformationintheVoting
nigit, e",. . . ." 128 Cong' Rec' S7139-( daily ed' June l8'. 1982 )' Of the four

orher members of the sukmmirtee: Scnaror Strom Thurmond opposed the

Dole compromisc; Senator Charles Grassley supported the compromise' and'

as notcd belos, expressly acceded to the majority view of the Senate Report;

and Senators Dennis Oeconcini and Patrick Leahy objected to the con-

clusions of thp Subcommittee Report
r r As noted i" rtt" p."""aing foornote, while Senator Hatch did ultimately

votc for thc bill. he opiosed thc pote compromise in Committee and voiced

opposition to ir on the f,oor of the Scnate'

l5

L3 t.27. These effiorts are misguided on both factual and legal

grounds.

l. The Maiority Statement in the Senate Report
Plainly Reflects the Intent and Efrect of the

Legislation

To understand the significance of the majority view stated

in the Senate Repoft, and of the individual views of amici

Senators Dole and Grassley, it is necessary to understand the

nature and the genesis of what is aptly termed the Dole

compromise. The purpose of the compromise was to clarify
what standard should be used under the results test to ensure

that the amended Section 2 would not be interpreted by courts

to require proportional representation. The bill originally
adopted by the House-H.R.3ll2-attempted to accomplish

this with a disclaimer that "[tlhe fact that members of a

minority group have not been elected in numbers equal to the

group's proportion of the population shall not, in and of itself,

"onriitut. 
a violation of this section." In addition, the stated

purpose of the House bill was to reinstate the standards of pre-

Bolden case law, which was understood by the House not to
require proportional representation. House Report at 29-30'

The House bill attracted immediate support in the Senate'

Senators Mathias and Kennedy introduced the House bill as

S. 1992, and enlisted the support of approximately two-thirds of
the members of the Senate as co-sponsors.l2 Still, certain

members of the Senate, and, in particular Senator Dole, had

lingering doubts as to whether the language of the House bill
was sufficient to foreclose the interpretation of the Voting
Rights Act as requiring propoftional representation. To ame-

rzlnitially S. 1992 had 6l co-sponsors, and by the time the Senate

Judiciary committee passcd upon the Dole compromise, this number had

grown to 66. Thus, as Senator Dole himself recognized in committee

deliberations. ..without any change the House bill would have passed."

Execurive Session of the Senate Judiciary Committee. May 4, t982, reported

at Voting Rights Acr: Hearings before the Subcomm. on the Constitution of the

Senate Comm. on thc Judiciary, Vol. lt, 97th Cong., 2d Sess' 57 (1982)

( hereinafter "lI Senate Hearings").



l6

liorate this concern, Senator Dole-in conjunction with Sena-

tors Grassley, Kennedy and Mathias, among others 13-

p.op"r.a that Section ZiU) be added to pick up the standard

enunciated by this Court in White v' Regester' In addition' the

disclaimer inctuded in the House bill was strengthened to state

"-p'.''rvthat..nothinginthissectionestablishesarighttohavemembers of a protectJd class elected in nutnbers equal to their

proportion of the PoPulation."
As Senator Dole himself was careful to emphasize, the

compromise was consistent with the Section 2 amendments

p"rrld by the House.la As Senator Joseph Biden expla-ined in

ih" Co--ittee debate over the Dole compromise, "What it

does Iis ], it clarifies what everyone intended to be the situation

from the outset." Executive Session of the Senate Judiciary

Committee, May 4,1982, reported at II Senate Hearings 68' In

introducing s. iqqz on the hoor, senator Mathias also termed

the commitree actions on Section 2..clarifying amendmentIs]"

which "are consistent with the basic thrust of S' 1992 as

introduced and are helpful in clarifying the basic meanirtg of

the proposed amendment'" 128 Cong' Rec' 56942' 56944

(daily ed. June 17, 1982).ts I

rssenatorDoleexplainedthathe..alongwithIamiciISenatorsDeCon.
cini, Grassley, Kenned'y, and Metzcnbaum and Senator Mathias ' ' ' had

workcd out a compromise on [Scction 2l'" Id' at 58'
t' Thus, Senator Dole exilaincd the proposed compromise as follows:

"ITlhe compromise retains the resuls standards of the

Mathias/Kennedy bill' However, we also feel that the legislation

should bc ,trengthcned with additional language delineating

what legal stani"d should apply under the resuls test and

clarifyin! thar it is not a mandare tor proportional representation.

Thus, our compromise adds a new subsection to section 2' which

codified language from the 1973 Supreme Court decision of

White v- Rdgesier-" Executive Session of the Senate Judiciary

Committee, May 4, 1982, reponed at II Senate Hearings' 60'

See also llnited States v. Marengo Countv Comm'n' 731 Fl 
-2-d -l:-4f: -1565 

n'30

il t,t Ci..), cert. denied, 

- 

U'S' 105 S' Ct' 375 ( 1984)'

!sAsimilarunderstandingoftheSenatebillwasexpressedonthefloor
of the House by Representative Don Edwards' Chairman of the Subcom-

mitteeonCivilandConstitutionalRightsoftheHouseCommitteeonthe
Judiciary:

(footnote conlinues)

t7

The authors of the compromise-in particular amici Sena-

tors Dole and Grassley-did not perceive it as inconsistent with
the majoriry view of the proposed legislation. lndeed, in
additional comments to the Senate Repoft, both amici Senators

Dole and Grassley clearly stated that they thought the majority
statement to be accurate. Thus, Senator Dole prefaced his

additional views with the comment that "It]he Committee
Report is an accurate statement of the intent of S. 1992, as

reported by the Committee." 16 Senate Report at 193. And
Senator Grassley prefaced his views with the cautionary remark
that "I express my views not to take issue with the body of the

Report." Senate Report at 196. So that there could be no doubt
as to his position, he later added that "I concur with the

interpretation of this action in the Committee Report." Senate

Report at 199. Moreover, the individual views expressed by
both these Senators were in complete accord with the majority
statement. 17

(footnote conrinued)

"Basically, the amendments to H.R. 3l t2 would. . . clarify the
basic intent of the section 2 amendment adopted previously by
the House.

"These members Ithe sponsors of the Senate compromise ] were
able to maintain the basic integrity and intent of the House-
passed bill while at the same time finding language which more
effectively addresses the concern that the results test would lead
to proportional representation in every jurisdiction throughout
the country and which delineates more specifically the legal
standard to be used under section 2." 128 Cong. Rec. H38,lO-
3841 (daily ed. June 23, 1982).

16 As Senator Dole stated in his additional views, his primary purpose in
offering the mmpromise was to allay fears about proporrional representation
and thereby secure the overwhelming bipanisan support he thought the bill
deserved. For this reason, his comments primarily were concerned with
stressing the intent of the Committee that the results test and the standard of
lAhirc v. Regester should not be construed to require proponional representa-
tion. Senate Report at 193-94. This in no way suggests that he disagreed with
the views expressed in the majority report, for that repon also went to great
pains to explain that neither the results test nor the standard of White v.

Regester implied a guarantee of proponional representation. Senate Repon
at 30-31. A disclaimer to the same effect appears, of course, on the face of the
statute.

tz Senator Dole objected to efforts by opponents to redefine the intent of
the 1982 amendments on the floor of the Senate. See 128 Cong. Rec. 56553
(daily ed. June 9, 1982).



r8

Both proponents and opponents of S' 1992 recognized in

the floor A-eUates the significance of the majority statement in

theCommitteeReportasanexplanationofthebill'spurpose.
io, ,"rly on in the debates Senator Kennedy noted that:

"Those provisions, and the ihterpretation of. those

provisions, are spelled out as clearly and' I think' as

well as any committee report that I have seen in a

long time in this bodY'

"I have spent a good deal of time personally on this

report, and I think it is a superb commentary on

exactly what this legislation is about'

"In short, what this legislative report points o-uJ.i'

who won and who lost on this issue' There should be

no confusion for future generations as to what the

intention of the language was for those who carried

the day." 128 Cong. Rec' 56553 (daily ed' June 9'

1982;'ta

rt senalor Kennedy reemphasizcd this point a week laten

"If there is any question about the meaning of the languager we

urge the judges to read the report for ir mcaning or to listen to

thise who were rhe principal sponson of the propo;al, not to

I"t",o* *no roughi against the proposal and sho have an

cntirely different --nop'f *nat a Voting Righs Act should be"'

t28 Cong. Rec. 56780 (daily ed' June l5' 1982)'

An admonition which Senator Dole heartily echoed:

"I join the Senator from Massachusetts in thc hope that when the

juiger look at the legislative history' they.will look at thosc who

,uppo.t"O vigorously and enthusiasdcally the so'called com-

promise."

t28 Cong. Rec. 56781 (daily ed' June 15' 1982)'

Senaror Kennedy later remarked to the samc effect:

"Fortunatcly, I will not have to be exhaustive because the Senate

Judiciary Committee Rcport, presented by Senator Mathias' was

an excellent exposition oi the intended meaning and operation of

the bill."
128 Cong. Rec- 57095 (dailv ed' June l8' 1982)'

l9

Thus, the proponents of the legislation, including Senators
Dole,re Grassley,20 DeConcini,2t Mathias,22 and Kennedy,23
repeatedly pointed their colleagues to the majority statement of
the Senate Report for an explanation of the legislation. Con-
versely, opponents of the compromise,2l ot proponents of
particular amendments,2s looked to the majority statement of
the Senate Report as a basis for their individual criticisms of the
bill. At no point in the debates did any Senator claim that the
majority statement of the Senate Report was inaccurate, or that
it represented the peculiar views of "one faction in the con-
troversy."

Respect for the majority statement of the Senate Report
carried to the floor of the House during the abbreviated debate
on the Senate bill. Thus, amicus Representative F. James
Sensenbrenner explained to his colleagues:

"First, addressing the amendment to section 2, which
incorporates the 'results' test in place of the 'intent'
test set out in the plurality opinion in Mobile against
Bolden, there is an extensive discussion of how this
test is to be applied in the Senate committee report."
128 Cong. Rec. H3841 (daily ed. June 23, 1982).

Again, there is no suggestion by any member of the House that
the majority statement in the Senate Report was less than an
accurate statement of the intent of Congress with regard to the
bill.

te 128 Cong. Rec. 56960-62, 56993 (daily ed. June 17, 1982).
20 128 Cong. Rec. 56646-48 (daily ed. June 10, 1982).
21 128 Cong. Rec. 56930-34 (daily ed. Junc 17, 1982).
ez 128 Cong. Rec. 56941-44, 56967 (daily ed. June 17, 1982).
23 128 Cong. Rec. 56995 (daily ed. June 17, 1982); 57095-96 (June 18,

r 982 ).
21 128 Cong. Rec. 56919-21, 56939-40 (daily ed. June 17, 1982); 57091-

92 (June 18,1982).
25 128 Cong. Rec. 56991, 56993 (daily ed. Junc 17, 1982). The

amendment offered by Senaror Stevens is panicularly notewonhy-it con-
cerned the application of the standards of Section 2(b) in pre-clearance
cases-because he largely sought to justify it on the basis of a consistent
statement in the Senate Report.



20

2. As a Matter of Law, the Maiority Statement in

the Senate Report Is Entitled to Great Respect

Under fundamental tenets of statutory construction, Com-

mittee Reports are accorded the greatest weight as the views of
the Committee and of Congress as a whole.

In the preteding term, this Court reaffirmed the long-
established principle that committee reports are the author-

itative guide to congressional intent26

"In surveying legislative history we have repeatedly
stated that the authoritative source for finding the

legislature's intent lies in the Committee reports on

the bill, which'represent I 1 the considered and

collective understanding of those Congressmen in-
volved in drafting and studying proposed legislation.'
Zuber v. Allen,396 U.S. 168, 186 ( 1969)."

Garcia v. United States, 

-U.S.-----.-.- 

105 S. Cl 479, 483

( l98 ); accord Chandlerv. Roudebush,425 U.S. 840, 859 n'36
( 1976); Zuber v. Allen, 396 U.S. 168, 186 ( 1969); United

States v. O'Brien,39l U.S. 367,385 ( 1968); United States v'

International Union of Automobile Workers,352 U.S. 567' 585

( 1957). The Garcia Court also reiterated the principle that

committee reports provide "more authoritative" evidence of
congressional purpose than statements by individual legislators.

Garcia,l05 S. Ct. at 483; United Statesv- O'Brien,39l U.S. at

385 cf. United States v. Automobile Workers,352 U.S. at 585'

In light of these well-established principles, the effiort to

undermine the value of the Committee Report as a guide to
legislative intent by citation to statements made during floor

debates is misguided. Committee reports are "more author-

itative" than statements by individual legislators, regardless of

26 Consistent with this longstanding principle, the Senate Report has

been the authoritative source of legislative history relied on by courts

interpreting the 1982 Voting Rights Act Amendments- See, e'g', McMillan v'

Escambia Counry, 748 F.2d lO37 ( I lth Cir. 1984); Ilnited S'a'cs v' Dallas

Counry Comm'n,739 F.2d 1529 ( I lth Cir. 1984); United States v' Marengo

County Comm'n,731 F.2d 1546 ( I lth Cir.)' cert. denied, 
- 

U'S' 
- ' 105 S'

Ct.375(198a);Velasquezv.CityofAbilene,T25F.2dl0lT(5thCir.l984).

2t

the fact that the individual legislator is a sponsor or floor
manager of the bill. See National Association of Greeting Card
Publishers v. United States Postal Service, 462 U.S. 810, 832-33
n.28 ( 1983); Chandler v. Roudebush, 425 U.S. at 859 n.36;
Monterey Coal v. Federal Mine Safety & Health Review Com-
mission, 743 F.zd 589, 596-98 (7th Cir. 1984); Sperling v.
United States,515 F.2d 465, 480 (3d Cir. 1975), cert. denied,
462 U.S. 919 (1976).27

The basis for this rule is quite simple, for to give con-
trolling effect to any legislator's remarks in contradiction of a
committee report "would be to run too great a risk of per-
mitting one member to override the intent of Congress. . . ."
Monterey Coal v. Fed. Mine Safety & Health Review,743 F.2d
at 598. The rule also reflects the traditions and practices of
both Houses of Congress, in which members customarily rely
on the report of the commirtee of jurisdiction to provide an
authoritative explanation of the purpose and intent of legisla-
tion before any floor consideration begins. For example, the
Senate Rules forbid the consideration of "any matter or
measure reported by any standing committee unless the
repoft of that committee upon that matter or measure has been
available to members for at least three calendar days . . . prior
to the consideration . . . ." Rule XVII, para. 5, Standing Rules
of the Senate. In this way, each member has the opportunity to
examine not only the text of proposed legislation, but also the
explanation and justification for it, well in advance of any vote
on the bill. By contrast, the vast majority of members may be
completely unaware of the content of a statement made during

z7 ln National Association of Greeting Card publishers, the Coun ruled
that a statement by the floor managers of a bill, appended to the conference
committee repon, lacked "the status of a conference report, or even a repon
of a single House available to both Houses." 462 U.S. at 832 n.28. The Coun
in chandler v. Roudebush held a committee repon to be "more probative of
congressional intent" than a statement by Senator williams, the sponsor of
the legislation. 425 u.s. at 859 n.36. lnMonterey Coal,the court noted that
the sponsor's statemens "arc the only mention in the legislative history of the
specific issue before us." Monterq Coalv. Fed. Mine Safety & Health Review,
743 F.2d at 596. Nevertheless, because the sponsor's position was not "crearty
supported by the conference committee repon," the court declined to give the
sponsor's remarks controlling weight. 743 F.2d at 598.



22

floor debates. It is impossible to determine from the official
record of congressional proceedings whether a given member,
or a majority or any particular number of members, was
present when a certain statement was made. It is even
customary for statements to be delivered orally only in part,
with the balance printed in the Congressional Record "as if
read." Given these facts, well known to amici from their
decades of experience in both Houses, there is little basis for
concluding that any given statement made in floor debate
accurately states the intent of any member other than the one
who made it.ze

Furthermore, the "compromise character" of the 1982
amendments does not detract from the validity of the majority
views. Here the proponents of the conipromise wording
expressly agreed with the majority views and viewed the

2r The cases cited by the Solicitor General in support of the effort to
amplify the statements of individual senators and disparage the significance of
the Senate Repon, are inapposite.

ln North llavcn Bd. ol Educarion v. Bell, 456 U.S. 5 l2 ( I 982 ), the Court
noted that "the statemcnts of one legislator made during dcbate may not be

controlling," but indicated that statements made by Senator Bayh, a sponsor

of the legislation, were "the only authoritative indications of congressional
inrent regarding the soope of !! 901 and 902" of Title IX, because $$ 9Ol and

902 originated as a f,oor amendment and no committee report discussed

them. 456 U.S. at 526-27.

The other case cited by the Solicitor Gencral, Grove City Collegc v. Bell,

- 
U.S. 

- 
lO4 S. Ct. 12l I ( 1984), also involved an interpretation of Title

IX. The Court in Grovc City again recognized that "statements by individual
legislarors should not be given conrolling effect," but cited Noah Haven to

support its position that "Sen. Bayh's remarks are 'an authoritative guide to
the statutc's construction.' " 104 S. Ct. at 1219. The Court indicated that Sen.

Bayh's remarks were authoritative only to the extcnt that they were consistent

with the language of the statute and the legislative history. Id.

Thus, /Vortt Haven and Grove City concern the significance of a sponsor's

expressed views in the absence of a relevant statement in a committee report.
Here, in marked contrast, the Solicitor General draws an unwarranted
infercnce that electoral success might preclude a Section 2 claim from Senator
Dole's expressed desire to avoid a requirement of proponional representation,
and then asserts that inference as superior to an express statement to the

contrary in the Senate Report.

23

compromise wording as merely a clarification of the intent of
Congress.2e [n these circumstances, there is no reason to
conclude that the Committee Repoft, prepared after adoption
of the compromise, and accepted by all as an accurate ex-
planation of it, loses its status as the most authoritative guide to
legislative intent.

III. THE DISTRICT COURT APPROPRIATELY LOOKED
TO THE TOTALITY OF CIRCUMSTANCES IN.

. CLUDING THE EVIDENCE OF SOME BLACK ELEC.
TORAL SUCCESS TO DETERMINE WHETHER
BLACKS HAD EQUAL OPPORTUNITY TO PARTICI.
PATE IN THE ELECTORAL SYSTEM; THE COURT
DTD NOT REQUIRE PROPORTIONAL REPRE.
SENTATION

At bottom, the argument of the Solicitor General and
appellants, that limited electoral success by members of a
minority group should be conclusive evidence that the group
enjoys an equal opportunity to participate, rests on the claim
that such a rule is implicit in the disclaimer that Section 2 does
not provide a minority group the right to propoftional repre-
sentation. AII parties agree that Section 2 was not intended by
Congress to provide a right to propoftional representation-but
that point has no significance to the immediate issue.

As the pre-Bolden case law discussed previously illustrates,
the trier of fact may find a denial of equal voting opportunity
where, despite evidence of some minority group electoral
success, evidence of other historical, social and political factors
indicates such a denial. See, e.g., White v. Regester,4l2 U.S.
755 ( 1973); Kirkseyv. Board of Supervisors, S54 F.2d 139 (5th
Cir.), cert. denied,434 U.S. 968 ( 1977); Zimmer v. McKeithen,
485 F.2d 1297 (5th Cir. 1973), aff'd sub nom. East Carroll
Parish School Bd. v. Marshall,424 U.S. 636. Such a finding in
no way implies or necessitates that Section 2 be applied as a
guarantee of proportional representation. The ..dispropor-
tionality" of minority group representation is not the gravamen

2e See text and notes accompanying nn.l4-l7, supra.



24

of the Section 2 claim in such a case' though it may be a factor;

rather, it is the tonflutn"t of factors which indicates that an

equal opportunity tt'p"ij"ip"te in the political pPc:ss and to

elect reprer"nt"t''"J Jiirttii choice has been denied members

of the grouP.3o

ln order to determine whether a violation of Section 2 has

occurred, courts "';;;';;;tider 
o'hettrer' given the "totality of

circumstances," members of a protected ciass have been given

an equal oppo'uoif tt'p*i"iiate l1,the 
electoral process and

to elect ,"pr","nt"iives of their choice' In its opinion' the

district court appe"'"Ji-'"aertake just the sort of "totality of

circumstan".r" 'n"iiJs 
in the challenged state legislative dis-

tricts as is requiJ'lv i""tion z' In fact' the district court'

quoting the Senate-Rlpo* "t ?}-zg.'set 
fofth the nine so-called

"Zimmer"factors *iiJii"v be relevant in determining wheth-

er a Section z 'iora'tiol'[;;;*" 
established, and proceeded to

;;;fi" those factors' 590 F' Supp' at 354'

The court tt"t"i that it found " lig-l d'"?*" of 
'raciallv

polarized or bloc ""i"t' *"n that in alt districts a majority of

the white voters nt"i'uottd for anv black candidate' The

existence of racialy porarized voting'is a significant factor in

determining ort 
",hi, 

uote dilution .*i.,r, particularly lfere' 
as

here,large rnutti*tiUer districts are invoived'31 See McMillan

3oAs the Solicitor Gcneral himself points out' "[almended Section

2... focuses not on guaranteeing election^rcsuls' but instead on securing to

every citizcn ttrc rigni o equal 'opport'"itv ' ' ' it panicipate in the-polidcal

proccss. -.."' Brierioitil-u"it;i :::::-:t 
Amicus curiae 14' congress

could not have been more clear in expressinfits intention that election results

alone should oot u" i"ititinative of a Section 2 claim'

3r We do not suggest thar whitc voters should be forced to vote for

minority ."naia"r"s'"-ii"ty '"t"'' rcg"tat"" or racl has thc right to vote for

,r," ",ni 
io 

"," 
o r hi' J;;;'"r-r; 

1 ryy;';*:lf ;["tffi:l];:]
noi ro," for a black candidate in any ctrcut

districa *'ittr majoritJ;t* **;*"l1:ont are drawn' the minoritv vote

is likely to be o[ reiati'cty little consequence' At best' minority voters are

required ,o "'i"gr"o'il"'il;;';;i; "t""t-"nv 
black candidates in the face

of the majorirY whitc opposltlon'

Becauscofidiosyncrasiesthat*'yblpresentinanyparticularelcction'
the court should 

'"|"i'"t''"*';h""-;;: 
tr"'",ion' as the district coun did' to

assess the pattern of racially .polarizcd 
roting' Of course' for this reason'

black succcss in a single election' t"" t'ith 
-ite 

white support' cannot be

determinative'

t)

v. Escambia County, 748 F'Id 1037-(5th Cir' 1984); United

Srctes v. Dallas Co'nty Commission'-T39 F'2d 1529 (l lth Cir'

1984); lJnited Sbres'v' Marengo County Comm'n' 731 F'2d

1546 ( llth Cir. ), ,"'t' denied' U'S'-' 105 S' Ct' 375

iigia). This brief does not contend that all at-large'

Iur,ii..uer districts should be suspect or subject to challenge

under Section 2. Rath"', the district court acknowledged that

Ir-r,rtti-ember district does not alone establish that vote

dilution has resulted," 5s F. Supp. at 355, but found that large

multimember districts along wittr severe racial polarization in

voting and other f".iot' cimbined here to create such dilu-

tion.32

The district court stated further that it found a history of

official discrimination ugairrrt blacks in voting matters-in-

cludingtheuseofa"ri..s"suchasapolltax'aliteracytest'and
an anti-single-shot voting law-which-had continuing effect to

depress black vote,- 'eii'tration' :9O F' Supp' at 359-61'

Although the district cJurt acknowledged that these devices

were no longer "*pLv"a 
by the early 1970s' it also recognized

that their 
"*istence 

fo, o*'"i half a century has had a lasting

i;;";,. Id. at 3-60. The lasting impact of historical dis-

crimination on th; present-day ability to participate in the

.l".to.ut process has also been recognized in other recent cases'

Cf. United.States u.- filo'"ng' County Comm'n' 731 F '2d it 1567

f:'1e;"., discrimination c-an severely impair the present-day

,Uifi,v of minorities to participate on an equal footing in the

ptii,i""f process."); M"Mittonv' Escambia County' 748 F'2d at

lo43-44.

The district court decision rests' in part' on the fact that this

historyofofficialdiscriminationisstillrelativelycloseinterms
oftime.Thecourtnotedthata..goodfaith''effiortisnowbeing

-r rrr*..**r General mischaracterizes the disrrict court's position in

suggesting that ir impropcrly defined racially polarizcd voting to exist where

more than 5o percent or *nircs and blacks ,ori fior a difrerent candidate. The

district court's finding of tiaatty polarizcd voting instead w-as.based on

exrensive erpen tesririony which'esiablished that a majority of white voters

will nor vote for 
""v 

,ir"i,v 
""ndidales. 

This was the case even when blacks

ran for office unoPPoscd.



26

made by the responsible state agency to remedy the effecm of

p*i oi.lti.ination' The court observed:

.. . . . . If continued on a sustained basis "*1,-1
sufficient period, the effort *igll succeed in removmg

the disparity inlegistration which.survives as a legacy

of the torrg p",iof,oiait""t denial and chilling by the

state of ,"gi'tt"ti* by black citizens' But at the

present tim" tt'" g"p ft"t 
"ot 

been closed:.Td ttl:]t
of course oo gt'"i""tee that the efrort will be contln-

ued past the end of the present state adminis-

tratio;.'" 590 F' Supp' at 361'

Thecourtbelowalsorecognizedassignificantthemajority
vote requirement i;;;'ilX;"h Carolina in primaries' cf'

Zimmer,485 F'2d at 1305' Because of the historical domina-

tion of the Democ*i" p"*' in local races' this majority vote

requirement in p'itnii"J 'ub't"nti"lly 
impeded minority voters

from electirrg ",od'i'J"i"t "r 't'"it 
choice' 590 F' Supp' at 363'

Recent cases *hiJ["t" 
""ntidered 

amended Section 2 have

reached similar tt""f"tl"1t Cf' McMlllan v' Escambia County'

supra, 7 48 F .zd"ti;;"C' I ni malontv vote is t:qY."l- during

the primary in "t "-"" 
*i"'" the Democratic Party is domi-

nant. this factor *"itt" ln f"t-ot of a finding of dilution'");

United States u' oo'iol County Commission' supra' 739 F '2d' at

1536 (" [T]he r;;;; of a majoritv in the.prilal nlus the

significance .f thJ;;;;;;oti" ptit"tv combined to 'weigh[ ]

in favor of " nnai'g "f diluiion : ' '"')t United S'a'es v'

Marengo Countv J''^l"i'"n' 731F'2d at t'10 11.:I:i1q ?i
vote dilution is ..enhanced" by a majority vote requirement m

the Primary)'

The district court found that "If]rom.'h:. R:"-1T:truction

era to the present ti-t' appeals to- racial prejudice against black

citizens have beenliit"tii"rv used by p"i'ont' eithe-r-candidates

or theiruuoro**'l^;;; *"""t 91 
inhuettcing voters in North

Carolina potiticai campaigns'" 590 F' Supp' at 364'

Moreover, the racial appeals "have tended to be most

overt and ur""ni-in tr'o" b"tioas when blacks were openly

asserting potiti"ai ""J "i'if 
rights'" rd' The district court

zl

concluded that the effect of racial appeals "is presently to lessen

,o ,or. degree the opportunity of black citizens to participate

effectively in the poliiital processes and to elect candidates of

it 
"i, "toi."." 

Id. Racial electoral appeals are a relevant factor'

S"n"," Report at 29. While not present in this case' one must

besensitivetothepossibilityofracialelectoralappeals.by
minority candidates as well'

And, the district court found that North Carolina had

offered no legitimate policy justification for the form of the

challenged districts. S'gO n' Supp' at 373-74' As the court in

Marengo County acknowledged, "the tenuousness of the justifi-

cation for a state policy .'y inditute that the policy is unfair'"

731 F.2d at l57l (citation omitted)'

The foregoing findings contained in the district court's

opinion illustrlte that in deciding this case the court appropri-

"i"ty 
.onridered the factors that Congress found relevant in

ur."rring the "totality of circumstances'" Amici also note that

the district .ourt 
"n"iyzed 

black electoral success at length, as

the statute contemplates, as "one circumstance to be consid-

ered.,, However, thl court found that in light of the totality of

circumstances this evidence of electoral success was inadequate

ro establish that blacks had an equal opportunity to participate

in the political process' because it was due to the presence of a

variety of factors other than those which indicated that blacks

had been given an equal opportunity to participate in the

political process.

ln the 1982 election in House District 36 (Mecklenburg

County), for example, black candidate Berry was elected' 590

F. Suip. at 369. in that election, however, there were only 7

white candidates for 8 positions so that I black candidate had

to be elected. Id. Evin under these circumstances' only 42

percent of the white voters voted for Berry, the black candidate'

in the general election, and Berry was the first black representa-

tive elected from House District 36 in this century' 590 F' Supp'

at365,36g.Sevenotherblackcandidatesranunsuccessfully
forofficebetweenlg66andlgSl,andtherewasanotherblack
candidate in the 1982 election who lost' Id'



28

In Senate District 22' which also includes Mecklenburg

counry, onlv one ;i;[;;tdid"te has been elected' and he

served from 1975-di;: ;'0 F' supp' at 365' In 1980 and

I 982, black t"naia'iJ'" ;"; ;;;""t'irt'tt'' leaving an all-white

four-memb"' stn"lJ'il;;*' ror tt'is bistrict' Id' In the

1980 and tggz ete;i;il"* ;"'e than 33 percent of white

voters voted tu' th;;i;;k candidattt' sqo i' s'pp' at' 369'

while 78'94 ot'"tni ;i;" black- uoi"" voted for the black

candidates' Id' f*"'itit'e 1982^g"n"id election' where 94

percent of the bl";;;;" 'ot"a 
ro' tt'" black candidate' the

black candiaate roli. 
'ii. itir ltt,rstraies the extreme.difficultv

blacks have in tr"Jtit'il""[ "*ala"i"' 
*t'"t" there-is racially

polarized voting in'" i"igt' preaominaitly white multimember

district.

Even in House District 23 (Durham County)' which' on

the surface, tt"' ""'="ri"il;'J;4ssful 
rlte of minoriry electoral

success "o.p"r.d'ffi 
;;; of the oitt"t challenged districts'

factors other than "[ul 
access lo' 

th" political process have

contributed to'ni" H;t:-o-rr:1";* h'as been elected to the

House.""t""'*"'i;;ilL' s90 I il;' at366' In the le78

seneral election ii,;-t';'ieao ptitarv and general electrons'

f,o*"r"r, tt'" ur""I candidate '"" 
irri"o"tesled' Id' at 310'

Furthermot", inli'" ietz p'i'n"ty t["i" were only two white

candidates ro' tn"l ;; ;" th"t one-black necessarily had to

win. rd' N"*'"tnJri;;;;; tn"" t'"tioiit'" *t'it"'voters failed

to vote for the Uf""[ ""'aidates' ""n 
o'ttt" they had no other

"ioi"". 
Id' ar 370-71'33

tn light of these' findings' the district court found a denial

of voting,ignt,.i-nJ.,.io 
..io."ri,v oi.ii'"urnstances- analysis,

despite to*t tuil"'if" oiur""rt'"t""iot"t success' 590 F' Supp'

at 316. rh''::;;';+F :l;';;""use 
or the racianv

polarized "r""to-'""i"' 
thi' "lt"toral 

success came at a pnce'

"[Tlo have a "i"n"" 
of success i"t"tJ"ting candidates of their

choice in tt"'""li';;' black- 'ot"" 
**i rely extensively on

s in gr e - s ho t "'i J; ;'il ;* 
".' l'l " T :1 ff ,X1',:::' 

lT: "il'$1
right to vote for a full slate c

33 sr€ footnote I at 9' 5' supra' for a bnel ('ulrrue

electoral successes at issue hcre'

Furthermore, the court stressed that even this success was a

recent phenomeno"'-;;; insofar as.the 1982 elections were

concerned, *"' "toJ 'i"ptt"'"ta' "19. 
aberrational in terms of

specific candidates'";;;:-;;J political trends' and' in any

event, still too 1nrniiJ-'i,, numbers' to support any- such

ultimate inference" of 
"qu"fitv 

of opportu nity' Id' * 367 n'21 '

The Solicitor General and appellants' position would nar-

row the scope tt "";;;'"; "-i"tr'if" 
Section 2 does not permit'

It would require tit Co" to ignore- the totality of circum-

srances evidencing"" a""i"r of 
-equal potitical and electoral

opportunity in favor of focusing on only the most 
' 
recent

election returns' If those returns evidenced any noticeable

success by minoriry t*Jia"t"t' that would be dispositive'

The Solicitor General and appe.llants try to justify this

approach by arguing that the congressional rejection of a test of

proportionafitv ott?"it"t"' " findfng that limited electoral

success is disposruv-Joi-" it"ti"n 2 claim' The district court' ln

analyzing the "totality of circumstances"' neither ignored elec-

roral success by "T"liir*' 
nor found this one factor to be

conclusive. There is no suggestion in the opinion of the district

court that it misintffi;;fih" intent of Congress and found a

denial of voting rights simply because blacks had attained less

than propoaio""i"u""""'' n"tt'"r' the district court expressly

acknowledged trrai the lack of proportional representation is

insufficient ,o ""iiriii 
a Section 2 violation' 590 F' Supp' at

355.



30

CONCLUSION

For the reerons set forth above, amici respedfltlly reguest

that this court affirm the.decision bclow, and recognize the

neessity of measuring a violation of section 2 on the basis of
the "totality of circumstatlces," with particular emphasis on the

factors sct forth in Zimma and the Scnate Report'

ResPectfullY submitted,

Wrrren J. Rocxrnn
(Counsct of Record)
Mrm P. Gr*crx
Benaerr L. Arwru-

AnxotP & Ponrrn
12fi) New HamPshirc Ave., N.W.
\tr/ashington, D.C. 20036

€Az) 872-6789

Auoracys for Amici Curiae

Dated: August 30, 1985