Correspondence from Spaniol to Leonard; Thornburg v. Gingles Syllabus; Thornburg v. Gingles Court Opinion; Concur; Concur/Dissent

    t
SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK
WASHINGTON, D. C. 20543

JOSEPH F. SPANIOL, JR.,
CLIN( OF THE COURT

, Vlctoria J. Rogers! Aesistant Cl.erk
I

i

i Enc.
i

i cc: Iacy H. Thornburg, Eeq.
Hon. CharIeE Frled, Sollcitor General
Julius L. Chanbere, Esg.

AREA COOE 2O2

479-301 I

June 30, 1986

J. Rlch Leonard, Esqulre
Clerk, U.S. Dlstrict Court for the Eastern

District of North Carolina i,,

P.O. Box 25570
Raleigh, NC 276Lt

Re' 
"tE'IrT; $31"*ll3;r"t "t' "' *""1 nt"nt"''

(Your No. 81-803-CIV-5)"

Dear Mr. Ireonard:

The enclosed oplnion of thie Court ln the above-entitled
case was announced on the date indlcated.

The Judgrnent wl1l Lssue after the ocplratlon of 25 days
from the date of the oplnlon unlese a tlnely petitlon for
rehearing ls filed.

Very tnrly youra,

JOSEPH F. SPAIIIOIJ, iIR., Clerk

By



$(}fE: Wtt r. L i. fouibL. .lylLhrr lh.rd!oa.) will br nlrrrrd' rr u
b.i;;'d;.'l;;".cti ;tI rhii cer. rr i!. ci!.-dr opiaioa ir ixud
fti ivttrUr co*itw.a ao pr.a o( ttr otilaoo o( tb' Co''!ra- D'lt lLl D'ro qD

ffiT,H.He1l5f8,l.*'offrT$:ffie,:' 
t!' r..o"' ra

SI.]PREIIIE COUFN OF TIIE UMTED STATES

Syllebur

THORNBURG, ATTORNEY GENERAL OF NORTH
CAROLINA, Er AL u. GINGLES ET AL.

APPEAL FBOM fIIE UNITED STATES DTSTRICT COURT T'OR TITE

EASITERN DISTRICT OP NORTII CAROLINA

No. 83-196& Argucd December {, I985-Dccided June 30' 1986

In l9€0, tir Nortb Carolina Gcneral -{ssembly enected a legisiadve rc'
dirtricting plan for $c Strrc'r Seaete and House of Representativos.

Appe1eca, 6tect eitizenc of Noah Csdlina who rre registered to voter

tooushs suit in Fcdcrai Disirict Court, chdlenging onc sing{+mamber

dlctri; and six multirnembar districts on the glound, inl* a,ic, thac the

rcdistricting plan impsired bleck citizens'ability to elect representativ€t

of their ctroici in violarion of I 2 of the Voting Rigb6 Act of I9i5. Af ter
appellees brought suit. bui bcfore trial. ! 2 wrs arnended. targely in re-

,po*. to Mobilc v. iolbn, +16 u. s. 55, to mele clear that a violation

or I z -,.u br proued by showing discriminecory clTect alone. rzrher
then having to show a discrirninator7 PurPoEe. and to establish at the

releyanr legal standerd thc *Ilsulls test." Section 2(a), as amended.

prohibits 
" 

St"t. or political suMit'ison hom imposing any voting quali'

ffcstionE or prerequisites to voting, or .uy standards, practices, or pro'

cedures that rzsu.lt in the denial or abridgment of the right of any cjtrzen

to vot6 on sccou11t of race or color. Section 2(b], as arnended, provides

thet, I2(a) is violered wherc the "totality of the cireumstances" reveals

that.the political prlcesses leading to nominagion or election . . are noc

equally open t,o participadon by member: of a [protected class] ' ' ' in
that, its member: have less opporturury than other members of the elec'

torate to participate in the political proc$s and to elect represenlatives

of their choice,o and that the extenG to which member: of a procected

class have been elected to office is one circurnsgnce that may be consid'

ered. The Districs Coqrt applied the 'totality of the circurnstances" lest

s€t forrh in l2(b) and held that the redistricting plan violated I 2(a) be'

cause it resullcd in the dilution of black citizeng' votes in all of the dis'
puted districrs. .{ppeltants, the -{ttorney General of Nonh Carolina

I



l

THORNBURG u. GINGLES

Sythbu,3

lrd otherl tmk e dirrct 3pp.d co thir Court with nesp€ct to flvr o( thr
nultiracsrbcr diauicts"

IJrt& Ttrc judgmsnc ir afrm.d in part and revcrrrd in psrt.

590 F. Supp.345. .frlrmed in pert and rcvcrrcd in part.
Jusrtct BngxvaN delivered the opinion of tha Court with respcct ro

Prrtr. [, II, III-A, III-B, IV-A, and V, concluding that:
l. Minority votrn who contend thst tho multimenber fonu of district-

ingviolatca ! 2 must prcve the! the use of a multimember elecsorel ssnrc-
ture op$at€c ro minirnize or cancel out $air ability to ele€t their prr-
forred cendidai,er While many or all of the facton listed in thc Senate
Rcpott mry bl rclavanc to e ctrrirn of votc dilurion through submcrgencr
io multimember districcs, unlcas therc is a conjunction of the following
circunrtance+ thc ure of multimember diEFicts generally will nos irn
pedc thc ability o( minority yolet! to elcct represencative+ o( thcb
choicc St t d ruccinctly, a bloc vocing mejority mu,ct uJaolly br ablc
to d.f.rl c.ndid.t . rupportcd by a politicelly cohcsive, geognphically
iruutr rBinority 8roup. Thc rclevencc of thc eristcncc of rzsid bloc
vodnl to r. vote dilution cleim is nro(old: to ascenain wherlrer minority
group mcmbcrs constitute a politically cohesive rrnit and to det.rminc
whetherwhits! voo rufficiently as a bloc usuelly ro defear the minorit/s
prcfcrr:cd cadideo. 1tus, the queltion whether a given disrricr ex-
pcriuc.es l4dly rigniicant racid bloc votingrequires discnete inquiriel
ino. minoriey aad whita voting practices. A showing thar a signiffcurc
number of minority group memben rrsuelly vote for the same candideer
ir one wry of proving ths. political cohesiveness nccesEary to a vota dilu.
tion cleim, and consequently ectebtishec minority bloc voting within rhc
rocaaing of $ 2. And, in genaral, a whitc bloc vote that normdly will
defert the combincd strength of minority support plus white "crossover'
vote+riscs to the level oflegally signiflcant white bloc vocing. Because
lcs of political power through vote dilurion is disrinct &om the mere in
ebility to win e perticular election, a psrtern of racial bloc voring thar
extends over a period of drne is more probarive of a claim thar a disrrict
experiencee signiflcant polarization rhan are the.resuJts ot'a single elec-
tion. [n edistrict where elacdons are showa usudly to be polarized. the
faccthst racially polarized vocing is not present in one elecrion or a ftw
elections does not necessarily negete the conclusion ths! the disrric e.r.
periences legally signrficanr bloc voting. Furrhermore, the succegs ot'r
minority candidare in a particular election does not necessarily prove
thas the distric did nor experience polarized vocing in that, elecdon.
Herci the Disrricr Coun's apprcach, which tested data derived bom
three election year! in each discrict in question, and which revealed thas
blacks strcngly supported black candidetes, while, to the black candi.



THORNBURG A GINGLES

Syllebu

drta'rluel drGrimont, whitec rzrely did. rerisfactorily addreser crch
f.c.3 of thc progcr ltao&rd for lcgrlly rigni&ent racid bloc vocing.

Pp. P-rr.
e nto hngrrege of t 2 urd itr legirlativc history plainly deoronrtraO

that prmf thar somc oinority candidater hevc been elccted do.s rct
forcclor e l2 cteinr" Ttru, thc Dirtrict Court did not err, as a msttet of
hw, in rclirring to trtsi the fact thr& somc black ceDdidsto! havc au€'

cred.d rs dbpositive of appellees' e 2 chinu. Where multimember dir"
trieting gencrally wor*s lo dilute the miaority vote, it cannot be de'
fendedon tha ground thet it sporadicelly urd rrcrdipitously beneits
minority voc.rs. h" 4r-{&

& Th. clcarly-erroneous test of Fdoral Buh of Clvil hocedura 52(a)

ir thc epprupriarc srendard for eppcller reviev of ultiraerc flndinF of
vora dilusioa At both aarended $ 2 and its lcgirletivc historT make

cher, in evdueting t ltatutory cleim of votc dilution thrugh diltricting,
th. Ei8l cqfi it to eoruider the *totdity of thc circtrmsunces" and !o'
&tantdm, ba*d upoa a practical cvduatioa of thc prst srd pmt€ni rt
diticr. whethcr the political process is equdly opon so minority Yocsrrs

In thir car, lhe Dissrict Court carefully considercd the totdity of tlto
cttrtatstanca and found-thet in each district rzcidly Pohriz€d voting;
thc legacy of oIlcid dixriminsgion in voting m.tt€t:l, educerion, hour.
ing, etupbyucnr, and health setwiccsi and tho pcrsistencc of canpai5l
appelr to racid prcjudicc actd in concsrt rith the multimember dir.
cictiag schcnr to impeir the rbility of gcognphicdly inrular ard politi'
celly cobeaivo groupc ofblack voter: o prrticipatr equsily in the political
prlccls and to eleet csdidstes of their choiea h. 4d-.17.

Jusrrcu BtEMrlx, joincd by Jusmce l(eesxer.t Jusmca Bucx-
ruN, ud Jusincs SrEvEus. concluded h Pert UI-C that for pupo*er
of I 2, ths legal concept of racidly polerized voting, as it relates to claims
of voto dilution-chst is, when it is rrsed til pmvc thsl fit minority group
ir po&icdly eolrcrive and ther whito voterc will uurdly ba rbla to defeat
the minorit/r prcferred candidarer-rafen only to thc e.ristencc of e
correlation between the race of voten and the selection of cenain candi.
dscer. PlaintilB need not prove ciursation or intent in order to Prove a
prime facie case of racid bloc voting, rnd defendgnts may noG rebut chal
casarrith evidence of causation or insent. h. A-.{0.

Jusrtce BBErxrN, joined by Jusrtcg WHITE, concluded in Pars
IV-B, ther ths Distriet Cor.rt erred. es a nrarter of law, in ignoring the
significance of the sustained success black voter: havc experienced in
House Disrict .3. '[he persistent proportiond represencacion for black
residents in ther districr in the last six elections is incoosistenc with ap
pellees'elleg;arion thar black voter:i' ability in thas district to elect repre.
sentatives of their choice is not equal to thac enjoyed by the white major-

m



--)

THORNBURG U GINGLES,

. Syllahs

iry, h. {3-44.
fusriCe O,CoNN9E, joined by TxE CH1ap JUsflCE, JUs'llcE Powut t*

rDd Jusf,tcE BEnNquBt, eoncluded thac
l. lnrofar ar ttstiltical evidenc. of divcrgenc rzcid voting pattcras ir

rdmitt d solcly to.ertablish that the minority group it politically cohr'

rivc rnd to alsrat3t its prospects for ehctord lucccr'ltEr such e showinS can'

not b..rcbuttcd by cvidence thst the diverlenc vorinS Psttem! mey bo

erplrined by caruee g3hef rhsn rzcs. Ifowever, evidence of the reesonc,

foi aivergent voting p8ttertp can in somc circ-trmststcgs be relevani to
thr ovedl vots dilurion inqusy, urd thera is no nrlc aSrinst coruider'

*iou of ell ovidencc concerning votin3 prrfercncel othcr than statirtical
evidence of mcid voting P8ttcnul" h- l?-l&

2. Consi$snt and ruraineA cuccqll by czndid&er prcfcrrcd by minor'
ity votrn ir prolumgaively inconsirtent with tho cristsncc of e l2 viols'
tiiu Ttr.. Dileica Court erred in as*ssing thc artcn! of bhck clectord
succG.t in lloqse District 39 sd Senere DirtriC 22, as wcll ac in Hou&
Diseict 23. Excepr io House District 23. d.lPit thcr crron $c Dit,
eict Coqrt's ullimtas conclruion of votc dilutioo i3 noC clsrrty erroa.ou$
But in llousc Districr 23 appcllees friled to 83t bliEh e violrcion o[ I L
h. lE-22.

BAENX^N. J., ennounccd thc judgrnenr of tho Court and delivercd. thc
opinion ol thc Coun with respoct to Prrts I, [1. III-A. Ill-8, [V-A' and

V, inwhiclr WEttE, M^nstl^tJ. Bt acrrur, ard SrEvf-Ys, JJ., joinsd. an

opinion with rrsp€ct to Part III-C, in which ld.msHalt Bt rctqux' ard
Stzveirs, JJ., joirsd, rnd an opinion with relPect to Pan [V-,8, in which

WHItr, .1., ioinlA. WHlrE, J., 6l€d a connrringopinioc 
- 

O'CoNxon, J',
0led rn opinion comuring in thc judgmenr, in which BuRcEB, C' J"

. PowEu- sd RElo{qusr, JJ.. joined. SrEvsxs, J., fll€d ut opinion
concurring in psrt end dirsenring in part, in T hich DtAnsHAI.L a"d
Bt rcuuN, JJ., joincd



SIJPREME COTTRf OF fiIE UMIED ST{IES

No. 83-196E

I,ACY H. THORNBURG, ET AL, APPELLANTS U.

BALPH GINGLES Uf EL:

oN AppEAL tBoM nrn uurtiP-ryTp DIsrRIcr counf, FoB

urg EAsrei-t'{ oisrnrct oF NoRTI{ cARoLINA

0unr 30, 19861

Jusncu BRsxxa-rr announced -the 
judgment of P^" ?*

.rrd-illi;;r'ed the opi"ion ot'the Court with rcspeet to Parts

in, iii-;, iII-s, iv:a,.-g v-,gd ao opinion withresPect

;'i*, iit-c, in- *uctr Jusrtcs MAnsH I.l.'' JusmeE"

Blectotuu, ana liisricp St"'ens join' and an opinion with ;'

;fiIil;-t-*-e,-i" *ttitt' Jusircn Wxrre joins'

I'tris cdse requires that we constnre for the frrst time $ 2 of

the Voting Rights Act of 1965' as amended June 29' 1982'

12 U. s. c. $ rszi.---ih; specific quesrion to be decided is

whether tfre tf,"ee-j;;; ilistrict Court' convened-in the

Eastern District .f 'X"nf, Carolina pursuant to 28 U' S' C'

$228a(a) and 42 U- S. C' $19?3(c)' corectly held that the

use in a legislativ. ,.Ji.rii.iing plan of multimember districts

in five Nonh C*"U;itg"riti'9 districts.'i"h1l-11^ll
irnp"l"ing ttre opportunity-of black voter: "to participate m

the politic"f p*J.." .nd ,o elect representatives of cheir

choice." l2(b), 96 Stat' I&1'

I
BACKGROUND

InAprillgs2,theNorthCarolinaGeneralAssemblyen.
acted a legislative-.tJitttltting plan for the State's Senate

and House of Representat'lves'. Appellees' black eitizens

of North Carolina who are registeied to vote' challenged



,

83-1968{PINION

2 THOBNBURG l GINGLES

seven districts, one single-memberr and slx multimember'
diseicB, allegrnf that the redistricting scheme impaired

black citizensf ability Uo elect representagiv$ of their choice

in violation of the Forrrteenth and Fifteenth Amendments lo

the United States Corstitutioo and of | 2 of the Voting

Rights Act.r
After appellees brought suit, bui before lrid, Congress

asrended $ 2. The amendmeni was largely a resporule to this

Conrt's plurality opinion 'n Mobile v. Boldm, *16 U. S' 55

(19E0), which had declared that, in order to establish a viola-

tion of either $ 2 or of the Forrrteenth or F ifteenth .{,rnend-

ments, minority voters must prove that a eontested electoral

mechsnism was intentionally adopted or maintained by state

ofrcials for a dixriminatory purpose. Congress substan-

tially r.evised $ 2 to mal(e clear that a violation could be

proyen by showing discriminatory effect alone and to estab-

tistr as the relevent legal standard the 'tesults test," applied

by this Court nWthite v. Regester,4l2 U. S. 755 (1913), and

by other federal courts beforc Boldsn, cuqro;- S. Rep'

No. 9I-4I?, p. 28 (1982) (hereinafter S. Rep-)-

Section 2, as amended, 96 Stae 134, reads as follows:

, Appellece, clrallenged Senate Districr No. 2, which consisted of the
wboli-of Northearpton, Henford. Gata, Benie, and Chowur Counties.

and partr of Wrshington. Manin. Hdifax. and Edgecombe Counties.
I Appelleer eballenged rhe following multirnember districts: senate

No. 22 (Mecklenburg and cabemrs counries-{ memtrcrs), Hogse No. 36

(Mecklenburg County{ membert), House No- 89 (pan' of Forsyth
Corurry-i mernbes), House No. I (Durham County-i members).

Ilorrsc No. 21 (Wajte Councy-ri mernbers)' and House No. 8 (IVilson.

Nash and Edgecombe Coundes-l members).
rAppellanrs iniriared this action in September 1981, challenging the

Nonh Caroline General .{ssembl/s July l98l redisuicting. The history
of this action is recounted in greater deral in the Districc Coutt's opinion in

this cese, Giryles v. Edmbtcn.590 F. Supp. 345, 350-358 (EDNC l9&l).
It sgfices here to note thar rhe General Assembly revised the l98l plan in

April 1982 and that rhe plan at issue in rhis case is the 1982 plan.



a-1968-oPINION

THORNBURG u GINGLES 3

"(a) No voting qualifieation or prer€quisite to voting or

sta;dard, pnitice, or procedure shdl be imposed or

appliedby*yStateorpoliticalsubdivisioninamarurer
wtiich r.ioltr-in a deniai or abridgement of the right of

ury citizen of the United states to voie on account of

race or color, or in contravention of the guarantees set

forth in section'l(fxz), as provided in subsection (b)'

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

on the totality of the circumstances, it is shown that the

political pro"Lr..t leading to nomination or election in

it 
" 

St t. or political suMivision are not equdly open to

participation by members of a class of'citizerc protected

Ly subsection (a) in that its members have less oppottu'
oity tt 

"n 
other members of the electorate to participate

i" it " 
political process urd to elect representatives of

their choice. The extent to which members of a pro'

tected class have been elected to offlce in the state or
political subdivision is one cireumstance which may be

considered: Pltid,ed,, That nothing in this secrion

establishes a right to have members of a protected class

elected in numbes equal to their proportion in the

population.' Codified at 42 U- S- C- ! lyB.

Ttre Senate Judiciary Committee majorit'y Repoft ac'

companying lhe bill thac amended $ 2, elaborates on the

circtimsiances that might be probative of a $ 2 violation, not-

ing the fotlowing "typical factol'rs:"'

"I. the extent of any history of official discrimination in

the state or political subdivision that, touched the right of
the members of the minority grouP to register, to vote,

or otherwise to particiPate in the democratic process;

'Ttese facors were dertved from the analytical ftzrnework of lVlrrlc v'

Regcstcr, {I2 U. S. ?55 (t9?3), as refured and developerl by the lower

*,i,n., in parriculer by rhe Fift1r Circuit n Zbnmcr v. llc6cilhc7., l$
F. 2d 129? (19?3), a.ff;d sub non. Eost Conoll Potish Sc/rool Boatd v'

llo;l,lr.ll,,l2{ U. S. 63{i (196) (per atnom). S. Rep. 28' n' ll3'



a

88-1968-4PINtON.

{ THORNBURG u. GINGLES

2 the extenL to which voting in the elections of the

state or political subdivision is racidly polarized;

"3. the extenc to which the state or political suMivision
has used rurusually larie election districts,. majority
vote requirements, urti'single shot provisions, or other
voting practices or procedures that may enhance lhe
opportunity for discrimination against- the minority
grouP;

"4. if there is a, eandidate slating process' whether the
members of lhe minority grouP have been denied accesst

to that prccess;

'5. the extent to'which members of the minority grouP

iu the stste or political subdivision bear the effects of
discrimination in such areas as education' employment
and health, which hinder their ability to participate
efrectivdy in ihe political Proc$n;
"& whetherpolitical eampaigns have been characterized
by overt or subtle racial aPPeals;

-L the e.\tent to which memberc of the minority group

have been elected. to public office in the jurisdiction-

"Additional factors that in some cases have had prcba-
live value iul parE of plaintiffs' evidence to establish a
violadon are:.
'\rhether there is a significant lack of responsiveness on
the pan of elected officials io the pfiicularized needs of
the members of uhe minoritY frouP.
'\rhether the policy underlying the state or political sub-
division's use of such voting qualification, prerequisite to
voting or standard, practice or procedure is tenuous."
S. Rep. ?f,-29.

The District Court applied the "totdity of the circum'
stances" test set tbnh in $ 2(b) to appellees' satu[ory claim,
urd, relying principaily on the factors outlined in the Senate
Report, held ihat rhe redistricting scheme violated $ 2

because it resulted in the dilution of black citizens' votes in all



o

83-r968--OPINION

THORNBURC u CtitCt gs 5

s,even disputed districts. In light of uhis conclusion, the

court did not reach appellees' constitutiond claims. Ghqles
v. Edmistm, 590 F. SuPp. 345 (EDNC 1984).

hetiminarily, tJre co,rrt found that black citizens consti-

tuted a distinct population and registered-voter minority in
each challenged district. The cotrrt noted that at the time
the multimember districts were created, there were con'

centrations of black citizens within the boundaries of each

that were sufficiently large and contiguous to constitute
efrecrive voting majorities in single.member districts lytng
wholly within the boundaries of the multimember districts.
With respect to fhe challenged single'member district, Sen'

ate DisUict No. 2, the court also found that there axisted a
concenmtion of black citizens within its bourdaries and

within those of adioining Senate District No. 6 that was suffi'
cienL in numbers and in contiguity to constitute ur effective
voting majority in a single-member disrict- Ttre Distriet
Court then proceeded to find that, the fo[owing circum-
staDces combined with the multimember districting scheme

to result in the dilution of black citizens' voteg.

Fitr/,, the court found that North Carolina had officially
discrimiiiated against its black citizens with respect to their
e.rercise'of the voting franchise ftom approximately 1900 to
1910 by employing a0 differenl times a poll ta-\, a literacy
test, a prohibition against bullet (single'shot) voting' and

! Bullet (single'rhot) vodng has been descriH as follows:

".Consider [al totyn of 600 whites and 400 blacks with an at-large election

to choose four corurcil member:. Each yoter is able lo stst four votes.

Suppose there are eight white candidates, with Uc votes of the whitel splir
acrong them approxirnately equdly, end one bleck cendidare. with dl the

blscks vocing for him and no one elge. The result is that each white candi'

dam receives abour 3fl) votes and the black candidace receives-100 vores.

The black has probably woo a seat. Ttris rechnique is called :ingle'shot
voring. Singta'shot vocing enables a minority grouP to wln some ar'large
s.ac if it concentrales its vote behind a limited number of candidates and if
the vote of the majority is divided emoog r nurnber of candidetes-"' City
o! Romc v. united S.otes, +{6 U. S. lE6. !84. n. 19 (1980). quoting U. S-



&t-1968-OPINIONI

6 TITORNBURG u GINGLES,

designated seat plarul' for multimember districts. The

eo,rrt observed that even after the removal of direct barriers
to black voter registration, such as the poll ta"x and literacy
test, black voter registration remained relatively depressed;
in t98Z only 52.7?o of age-qualified blacks statewide were
registered to vote, whereas ffi.I?o of whites were reguitered-
Ttri District Court found Lhese statewide depressed levels of
black voter registration to be present in all of the disputed
districts and uo be traceable, a! least in part, to the historical
pattern: of statewids ofncial discrimination"

Seconl, the eourt found that historic discrimination in
educaiion, housing, employment, and health serrrices had'
resulted in a lower socioeconomic status for North Carolina
blecb a,s a group than for whites. The court concluded thac
th,is-lower status both gives rise to special Foup interests'
urd hinders. blacks' ability to participate effectively in the
political process and to elect representatives of their choice.

Ttvird, the cout considered other voting procedures that
rnay opemte to lessen the opportunify of black votetE to elect
candidates of their choice. Il noted that, North Carolina has
a majority'vote requirement for primary elections and while
rcloowlcdging thsl no black cildidste for election to the
state General '{'ssembly had failed to win' solelyr because of
this requirement, the court concluded that it nonecheless
presents a continuing practical impediment to the opportu'
nity of black voting minorities to elect candidates of their
choice. The court also remarked on rhe facc that Notth
Carolina does not have a subdistricc residency requirement
for members of the General Assembly elected from
multimember districts, a requiremenf which the court found

Comrnission on Civil Rights. The Voting Righrs .lct: Ten Years After.
pp. 206-207 (lYts).

'Designated (or nurnbered) seac ichemes requlre a candidate lor elec'
tion in multimember dissrics !o run for sPecific seas. and can. under
certain cireumstances, &ustrace bullet voting. See. e. 9., City vl' Ronte,
sttry, ar 185, n. 21.



j'

8il-1968--OPINION

THORNBURGU GINGLES T

could offset to some extent the disadvanuges minority votels

often exPerience in multimember districts"
pourti, the court found that white candidates in North

Carolina have encouragd voting along color lines.by apped'

i"g t. *.ial prejudicel It notid that the record is replete

wi-th speciflc ixanples of racial appeals, ranging in style from

overt and blatant to subtle and ftutive, and in {ate from the

lsgo,stothelg84campaignforaseatintheUnitedStates
Senate.Thecorrrtdeterminedthattheuseofracialappeals
in poliUcal campaigns in North Carolina persists to the

p".i.* day and that iu cutreni effect is to lessen to some

a.g"""thaopportunityofblackcitizenstoparticipateeffec.
;"?li i" ,rre potitieal pr(lce3ses and to elect candidates of

theb cltoice.
?ifrll, the corrrt esamined the extent to which blacks have

been elected to office in North Cartlina, both statewide and

i, ifr" challenged districts. It forud, among otJter t6ngE'

Li-p"i"i io frorld war II, only one black had been elected

to p,iuri. offlce in rhis cenrury. while recognizing that'5t
har now become possible for biaalrcitizens to be elAted !.":l .

0." .t all levels of rt"t" government in North carolina," 390 '

F. Gp., at 36?, the court found that, in comparison to white

.*aia"t"r *rnring for the sarne of;flce, black candidates are

at a disadvurtage in terms of relative probability of.success'

It also found that the overall rate of black electoral Succe$l

has been minimal in relation to the Percentage of blacks in che

total state population. For e.xample, the court noted' from

l9?1 and t982 there were at any given time only two-to'four

blacks in the l20-mernber House of Representatives-thac
it, oJV 1.67o to 3.3io of House members were black' From

IyfS to 1983 chere were at any one time only one or t'wo

blacks in the 5O-member State Senare-that is, only 29o to 1?o

of State Senators were black. By contrast, at the time of the

District court,s opinion, blacks constituted about 2,.4?o of

the total state PoPulation.



83-Ig6HPINION

t THORNBURG u GINGLES

With respect to the success in thiE century of black candi'

dates.in t}1! contested districts, see also Appendix B, infw,
the corrrt found that only one black had been elected to House

District 36-after this lawsuii began. similarly, only one

black had served in the Senate ftom District 22" ftom

1976-1980. Before rhe 1,982 election, a black was elected

only iwice to the llouse from District 39 (part of Forsyth

county); in rhe 1982 contest two blacks. were elected. since

tsaS a utack eitizen had been elected each 2-year term to the

Irouse ftom District 23 (Durham county), bub no black had

been elected to the Senate from Durham County. In House

District 2I (Wake County), a black had been elected twice to

t}e lfoqr, and another black ser"red two ter:as, in the State

senata No black had ever been elected to the House or
Senete ftom the areacovered by Hoqse District No. 8 and no

black person had ever been elected to the senate ftorn the

area covered by Senate District No. 2-

. The court did acknowledge the improved success of black

candidates, in the 1982' elections, in which 11 blacks were

elected to.the State House of Representaiives, including i
blecks from the multimember districts at issue here. IIow-
ever, the corrrt pointed ou[ ihat the 1982 election was con-

ducted after the commencement of this liugation. The court

fognd the cireumstances of the 1982 election su.fficiently ab-

errational and the success by black candidates too minimal

and too recent in relation to the long history of complece

denial of elective opportunities lo support the conclusion rhac

black vote!:' opportunities to elect representativ$ of their
choice wett noc irnPaired.

Finally, the coun considered the extent to which voting in

the challenged districn was racially polarized. Based on

statistical evidence presented by expert witnesses. supple-

mencd to some degree by the testimony of lay witnesses, the

cout found that all of the challenged districts exhibit severe

and persistent raciaily polarized voting.



a-l968JPlNION

TITORNBURG u GTNGLES I

Brs€donthese6ndingl,theeourtdeclaredtlrecontested
*lio* oi rrre rgai-ieGtiicring plan violarive of !2 and en'

ffi;;;ffi;frd conductirig electione pursualt to ihose

'oi};ffi;]f,;;il:-' epp"it""tt, the Attornev General of

ffifi'&;ur* iia .,rr"i, took a direer appeel ro this c:*,
p"*ii-, t,. zg U- a.-C. J rzse, with respect to 

-flve 
of. the

multimember aistricl-lio*" Districts 2L' z3' 36' and 39'

and Senate DistriciE. 
- 
eppellants argue' first' that the

ffirffEo,,1 oriSr.d a legaliy inconect standard in deter'

;;,irrg*h.tt." ttre contesta distri.t" e.rSibit racid bloc vot'

ffi f;-;;t tt"ii" cognizab'le under $2' Second' thev

eontend that the .o* *"i * incori'ect deonition of racially

;'i;rir.i ;;dng urd rhus et?oneously relied on statistical

svidencs thet was 
"", 

p.i"'ive of potirUea vodng' T'hird'

il;i;"in,.i" trt"i-ih! cotrrt assigned the wrong weighc

to evidence of some Uiack candidatei' electoral succe$l' Fi'

ually,theyarguethatthetrialcourteredinconcludingtha!
thoi" muitirn mU"i districts result in black citizens having

i.*,pp"*dty than their white counterparts to participate

inlr," [uuot-pt;; and lo elect representa-tiv-e3 of their

ehoice. We notJ probable jurisdicdon' {?l'U'Lt 
-irgg$, and now .tr "t 

with respect to all of the districts

;;.;il n"*. District 23. wittr resard it qit:1t:T' *"
ilil;;iort,t. District Court is reversed and remanded for

further Proceedings 
U

SECAION 2 Ar\D VOTE DILUTION THROUGH USE

OF MULTIMEMBER DISTRICTS

An understanding both of $ 2 and of the way in which

multimember distriits can oPerate to impair blacks'.ability co

elect representatives of their ehoice is prerequisite to an

evaluation of appellants' contentions' First' then' we re'

viewamendedSeanaitslegislativehistolYinsomederail.
Slcona, we explain the rheoietical basis for appellees' claim

of vote dilution.

.! ,i.



A
SECTION 8 AND ITS LEGISLATIVE HISTORY

Subse€tion 2(a) prohibits dl States and potitieal suMi'
visions ftom imposing ozy voting qudificatiorut or prercq-

uisites to voting, or any standards, practices, or procedures

which result in.lhe, denial or abridgment of the right to vote
of any citizen who is a member of a protected class of racial
urd language minorities. Subsection 2(b) estabtishes that $ 2

has been violated wherc the "totality of the circurnstance3''
reved that "the political processrxl leading to, nomination or
election . . . are not equally open to partieipation by rn€rll'
ber: of a [protected class] . . . in thet its members have less

opportunity then other membere of the electoraie to partici'
piie in tlte poiiUcal process and to elect- representatives of
iheir choice.;' While explaining that "ttlhe extent to which

members of a protected class have been elected to office in
the State or political suMivision is one cireumstance which
may be considered" in evaluadng an dleged violation, tz(b)
cautions that 'hothing in [$ 2J establishes a right to have
memberg of a protected class elected in numbers equal to
their proportion in the populrtioru"

ThC Senate Report which accompanied the 1982 amend-
ments elaborater on the nature of $ 2 violations and on the
proof required to establish these violations.' First and fore
most, the Report dispositively rcjects the position of the
pltrrality 'u Mobile v. Boldm,446 U. S. 55 (1980), which

83-1968--OPINtON

THORNBURGTT GTNGLES

'Tha Solicitor Generzl urger this Court to give littla weight to the Sen-

am Repoft, arSr,rng thac it nePr€s€nss a compromise among contlicting
*fac!ions,' urd rhgs is somehow le$ authoricative then most Comrnittee
Repons. Brief for United States as Amrcus Curioe 8, n- 12. 2{' n. '19.

We are noc persuaded tbat ths legislative history of amended 12 conrains

urything to lead r.rs to conclude thas this Senale Report should be accorded

little weight- We have repeatedly rec,rgnized thar the aurhoritative
3ource for legslarive intent lies in the comrnittee reports on the bill. See'

e. g. Goreiov. lJntlcd Sl,oles, {69 U. S. 

-, -(1984); 
Zubctv..{'llcn,

396 U. S. 168, 186 (19(i9).



83-1968-4PINION

THORNBURG u GINGLES ll

requir€d proof that the eontestd electoral practice or-mecha'
nism wa,radopted or maintained with the intent to discrimi'
nate against minority voterg.' See, a. 9., S. Rep. 2, 15-16,

n. Ge intent test was repudiated for three principd rea'
sons-it is "unnecessarily divisive because it involves charges

of racism on the part of individud officials or entire comrnuni'
ties," it places ur 'tnordinately dfficult" burden of proof on
plaintiffs, and it "asks the wrong question." Id., at 36. The
tight" question, as the Report emphasizes repeatedly, is
whet}er "as a result of the challenged practice or stnrcture
plaintiffs do not have an equal opPofttuity to psrticipate in
he political processes urd to elect candidates of their
choice."' Id., at 28. See also id., at2, *, D, n. ll8' 36-

ln order to angwer thia question, a court must asE68 tJte

impact of the contested stntcture or praetice on minority
electoral opporilniUes "on the basis of objective factot:."
Id., at Tl. Tlre Senate Report speeifles factors which tlAi-
cally may be relevant to a $ 2 claim: the history of voting-
related discrimination in the State or political subdivision; the
exteit, to which voting in rhe electioru of the State or political

'Thr Seng6 Report ctreE thst uended 12 was daign€d to natorG
tbrtrults tara"-thc legel staadard thet governod voring dircriminctioa
carca prior to our decision ia Mobilt v, 9olda4 446 U. S. 55 (1980).

S. Rep. 16-16. The Repor not€s th$ in pre'80{&z carcs such al
Rc7cs/rr, df2 U. & ?55 (1973), alrtd Zhnmer, 485 F. U l?9? (tfil). phir
t'fi. codd preveil by showing chr3, urder tho totdity of the drourstslcG.'
r challenged election lew or procedure had thc effect ofdenying a protected

minority an equd chance to participate in the electoral process. Under
the *resulu test,- plaintiffs lrc no! required to demoostnre thas the
chellenged eleccoml law or ttnrcture wes designed or maintained for r
discriminatoty purposo. S. Rep. 16.

rThe Senete Commi[ee lound thas \oting practices and pmcedures

tbrr have discriminatorT results perpesuare the effecss of past purposeful

discrimination." S. Rep. {0 (foocnote omitted). As the Senate Repcn
notes, the purpose of the Voting Rights .lct was ''not only to corna* an

acrive historT of discrimination. the denying to Negroes of the righl lo reg-
iscer and vote. bus also to ded with the accurnutacion of discrimination."'
S. Rep. 5 (quodng lll Cong. Rec. 8295 (196i) (remarks of Sen. Javic)).



E3.I96E.OPINION

rg THORNBUBG u GINGLES

suMivision is racially polarized; the extent to wNch the State
or political suMivision has rrsed voting practices or prcce'
dur* that tend to enhance the opportunity for discrimination
against the minority group, such as rurusually large election
districts, majority vote requirements, and proNbition+
against bullet vocing the e.relusion of members.of the minor'
ity group from candidate slating processes; the extent to
which minority grcup members bear the effects of past dis-
crimination in areas such as edueation, employment, and

health, which hinder their ability to participate effectively in
the political pnocess; lhe use ofovert or subtle racial appeals
in poliUcal caurpaigns; and the extent to which members of
the minority grtup have been elected to,public office in the
jurisdiction S. Rep. ?8-?$, see also ctrqtu,, at 

-. 
fite

Report notes also that evidence demorutrating that elected,

ofrcials are unreponsive bo the particularized needs of the
members of the minority group and that the policy underly-
ing the'State's.or the political subdivision's ulte of the con-
tested practice'or stntcture is lenuous may have prcbative
value. S- Bep. 29. The Repon stresses, however, that this
list. of tyTical factors is neither comprehensive nor exclusive.
While the enumerated thcton will often be peftinent to cer-
tain t1ryes. of $2 violations, particularly to Yote dilution
clairus,'' other fa4tors may also be relevant and may be con-
sidered. S. Rep. 8-30. Furthermote, the Senate Commit-
tee obser,red that "there is no requirement that any particu-
lar number of factors be proved, or that a majority of them
point one way or the other." Id., a;t,29. Rather, the Com-
mittee determined that '"the question whether the political
processes are'equally open' depends upon a searching practi-
cal evaluation of the 'past and present reality,"' id., at 30
(footnote omitted). and on a "ftrnctional" view of the policical
process. 1d,., tt 30, n. 120.

"Section 2 prohibia all forms of voting discriminationr nos jr.st vocc

dilurion. S. Bep. 30.



a-r968-OPINION

THORNBURG u GINGLES l8

Although the Senate Report esPouses a flesible, fact'
intenrive test for $ 2 violations, it limits the circumstances
under wliich 02 violationc may be proved in three ways-
First, electoral devices, such as at-large eleetions, may not
be considerd po se violative of $2. Plaintiffs must demon'
smte that, under the totdity of the circumstances, the
devices result in unequal access to the electoral process.

Id., at 16. Second, the conjunction of ur allegedly dilutive
electoral meclunism and the lack of proportional representi'
tion alone does not establish a violation. Ibid^ Third, the
results test does not assume the existence of racial bloc vot'
ing; plaintiffs mr:st prove it. /d., at 3i!.

B
VOTE DILUTION TIIROUGH THE USE OF

MULTIMEMBER DISTRICTS

Appellees contend that the legislative decision to employ
multimember, rather than single-member, disfiicts in rhe
contested jurisdicrions dilutes their votes by submerging
thern in a white majority," thus impairing their ability to
'elect representatives of their choice.'!

'r Dilution of reciel minority group voting scrength rney be caused by tho
dirpend of blaclts inio districts in whjch they constitute an ineffectivc
minority of vocen or hom the conceqtracion of bhckl into disaricts wheru
they constitute an exc€sive mejority. Enptrom &, Witdgen, huning
Tlpran from thcThickec An Emgiricel Tcrc of thc Exlrtence of Racid Gcr'
ryrnrndcring. 2 Legis. Sua. Q. .165, {66-466 (l9fD (hereinefter Engstrom
& Wildgen). See also Derfrrer, Racid Discriminetion and rhe Righr co

Vore. 26 Vand L Rev. 623, 553 (19f,3) (hercineftar Derfirer); F. Parker,
Bacial Gerrynrandering urd Legisletive Reapponionmenc (hereinafter
Parker). in Yinoriry Vote Dilution 86-100 (Davidson ed.. 198{) (hereina,l ter
Minority Voce Diludon).

sTJre clain we address in rhis opinion is one in which the pleintiffs al'
leged and atternpred to prove ttras sheir ability lo elect the represenstives
ot'their choice was impaired by the selecdon of a mtr,ltrmember electrrral
structure. We have no occasion to consider whether 12 permits, and if
it does, whas scendards should pertain to. a clairn brought by a minority
gmupt which is nog sulflciently large and compact lo constitute a majority



8g-1968{PINION

14 THORNBURG u GINGLES

The essence of a $ 2 cleim is that a certain electoral law,
pr"ctice or stnrctur€ interacts with socid and historical con'
ditions to cause an inequdity in the oPPoftunities enjoyed by
black and white voters to eleci their prefened reprcsent'
atives. Ttris Court has long recogflzed that multimember
districts and at-large voting schemes may "'opet?te to mini'
mize or cancel out the voting stength of racial [minorities in]
the voting populalion.""r Bunu v. Riclurdson, 84 U. S-

in e singlc'membcr dis6ict, dleging thar thc rrsc of a mqltinember district
iageirc its ability u in1luarce electioru.

Wc mte also theg wo heve no occasior to consider whetherthe stardards
wo apgly to.r=spondentd ctrim thst multimember districts oper*. to
dlluta tbo vota of geographically coherivc minority gtouPr. whidr rrs lrtle
urougb to, constitute mejoritica in singl+olcmb.r disrricts .rd whjch rrt
cootein d within thc bourderiea of thc cheUangd multimernbcr districts.
arc fully pertinent to othar sorts of votc dilution clrirng, such as r cleiau
dlegrng ther thc rplitting of e larls and geogrsphicelly cohesive minoricy
botween tvo or mors muJtinamber or singl,rmeruber dissricts raultcd in
the dilution of sho minority voce.

trCornrnentatort are in widespread agreement with thi* conclurioru
See,. a 9., Bcrry & Dye, 'Ilre Discriminatory Efrects of At-Large EIec-
uioru. ? Fla. Su U. L Rev. 86 (r9B) (hertinafter BertT & Dye); Blacksher
& Menefcc. From EarTaol& v. S&nc ro'Cily of Llobile v. Boldca, 9,
Ilastingr L J. I (1982) (hereinafter Blacksher & Menefee); Bonepfel,
Minority Chdlenges io At-Lerg? Elections: Tte Dilution hoblem, l0 Gr
L Rev. 358 (ff6) (hereinefter Bonapfel); Butler, Constitutiond and Stac'
utory Chdlengc! lo Election Slruccure$ Dilution ard the Valuc of rhe
Right to Vote, 42 L." L. Rev. 861 (1982) (hereinafter Butler); Carpcneti,
Legistetive Apponionmeni yultimember Disuicts and Fair Represena'
tion, l1) Pa. L. Rev. 666 (1912) (hereinafter Carpeneri); Davidson &
IGrbel,.fl-Large Eleccions urd Yinority Group Representation, in Minor'
ity Vote Dilution ti6; Dertren B. Grofrnan. Alternacivec to Singte.Member
Plurelity Disricts: Legd urd Empirical lssues (hereinafter Grofman,
Alteraativee), in Represeotation urd Redistricting Issues 107 (B. Grof'
man, R. Ujphan, H. Mclfuy, & H- Scarrow eds., 1982) (hereinaJter

Represenracion urd Redistriccing Issues); Hartman. Racial Voce Dilution
urd Separation of Powen, 50 Geo. Wash. L. Rev. 689 (1982): Jewell, The
Consequences of Single- and -Yultimember Disrricting, in Represenntion
and Redistricting lssues 129 ( l98A) (hereinafter Jewell)i Jones, The lmpacr
of L,lcd Elecdon Sysrems on Political Representation, tl Urb. A6. Q. 3f6



83-l968JPlNION

THORNBURG u' GINGLES l5

?3, 88 (1966) (quoting Fortson u' DT-'y : 3J9 
-U: 

Si- 111'^4il9
iirioojl s.l .bo Ristrs v. Lod4e,458 U. S. 613, 61? (1e82);

iUti v" Regester, 4i2 U. S-, at 16\ Whitcorub v' Chows'

40S U. S. Ui, 143 (1y71). The theoretical basis for this type

of impairm.ni is thas where minority and majority.voters

consistensty pret'er different candidates, the major-ity' by

virtue of its numerical superiority, will regularly defeat the

choices of minority voters-r' See, e' 9', Grofrnan, A{erna-
tivee, in Representation and Redistricting Issues lB-1r4.
Multimember districts and at-large election schemeg, how'

ever, are \ol Pst sc violative of minority voters' rights'
i. RLp" rO. it. Aogr,t v. Lodge, nqry, a!-!17; .Resesttr'
*'W, at ?65; Whitiornb, W1 tt .L42" Minority voten
wlio contend that the multimember form of districting vio'

lates $ 2, mtut prove that lhe use of a multimember electoral

stnrcture operat$ to minimize or cancel out their ability to
elect lheir ireferred candidages- See, 6' 9', S-' Rep' 16'

wrrn" many or all of the factors tisted in the Senate Report

may be relevanr to a claim ot'vote dilution through submer'
g.n.. in multimember districts, rrnless there is a conjunetion

if *r" following cireumstances, the use of multimember di'"
tricts generalli will not impede the ability of rninority vocent

to eleci nepresentatives of their choice.'' Stated succinctly,

(1916); lbrnig, Black Resources and City Council Represenadon' 'll J'

ior- ril trylSi: Karnig, Btack Representacion on City Councils' 12 Urb'

AIf Q. 233 (1916): Parker 8?-68.- 
" Xir onty does '[v]osing along racial lines" deprive minority volen ol

fheir prefened representaiive in these circurnstancesr il also "allows those

elecred ro ignorc [minoriry] interesss without fear of political conse'

qu.n.".,,' Rigen v. Ldqc, iSA U. S. 6I& 62] t1982). leaving the minoricy

effecuvely unrepresenced. See, c. 9., Grofman. Should Representatives
g. t"i."l of iheir Consciruencs?, in Representation and Redistricring

Issues'9? (hereinafrer Croiman. Should Representatives b€ Typica.l?):

Parker 108.
r under a ..funcrional" view of rhe potitieal process mandated by l:,

S. Rep. 30, n. 120. rhe moss imponanc Senate Report tbctors bearing on

$2 chellenges to multimember districrs are the "esten! to which minority

g-up ,o"rib"n have been elerted to public ofhce in the jurisdiction" and



83-I96t--OPINION

16 THORNBURG u GINGLES

a bloc voting majority mult zE2.o lty beable io defeat canai'
dater supponed by a politicdly cohesive, geographicdly in-
sular minority group. Bonapfel 355; Blacksher & Menefee
3{; Butler 9O3; Carpeneti 696-699; Davidson, Minority Yote
Dilution: fui 0verview (hereinafter Davidson), in Minority
Vote Dilution 4; Groftnan, Alternatives 117. Cf. Boldm, q+6

U. S., at 105, n- 3 (IvIensHALL, J., dissenting) C'It is obvious

thc "cxtcnt to which vocing in the elections of thr Et8t. or politicd suMi-
virioo is.racidly pohrized.' I&, ?f,.-?9. U prc:rat, thc o&er factorl
utch rr tho llngering eEects of pest dircriminetion, thc ruc of eppedr to
racbl bies in elccGion campaigru, ald rhc use of clectotzl devicec which
cnhrncs tlrc ditutivc Effscts of multimember dissricts when rubotsntial.
whllo bloc voting arisrs-for exernph eatibullet voting lewr cnd rnejoricy
yotr FquirtoGatsr .r.l suppottive o( but nd eirrlnil to, r. mimrity
votrr/r drim.

Ir rceognizilg thrt sornc Senetc Repon farton rre mont imponutt to
muldnnernbcr diruics vote dilution cleinrs than olhcr:, the Coutt efrectu-
ate* ths inrnt of Congres. It is obviout thac unless minority group
mcmbrrs cxprrionct rubrtrncid dit[culty clccting nprrscntativcl of thcir
droicq they crnnos prcva thst e chellengrd ehctorel rncchrnirrn imprirr
theb ebilily 'to- elect ' t Eb). And, where the conrcctod electoral
stnrcture ir emultimember district, comrDrurtatort aad courts egrco ihet in
thc abrence of signiflcaat wNte bloc votiag it'cannot bc a8id ther the ability
of minority voten to elcct their chosen rrprrsentetivec b inferior to thet of
whitcvoter.s Sec. r. 9., Llcilillonv. EsccrnbbCoualy, ?48 F.2d 103?,

1048 (CAS l9{if,\ United Scotes v. ltarngo County Contm'n, 7il1 F. 2d
15{6, 1566 (CAlf 1984) .ppc3l dismiss.d. cen denied, {69 Ur S. 

-(1984); Natctt v. Si&s, 571 F. 2d 209, U GA' t9I8). cerr dcnied. {46
U. S. 96f (1980); tohtr*n v. Holifoz County, 59{ F. Supp. 16l, l?0
(EDNC l9&lt: Blacksher & Menefee; Engrtrcm & Wildgen .16* Parker
lm. Coruequendy, U dimcdry in electing and white btoc vocing are not
pnoyenr minoricy voten heve noc established that the rnultirnembor stnrc-
lura interferca with their ability to elect their preferted candidas,es. Mi-
nority voterr mey be able to prove thac they still sufrer social and economic
efracts of pass discrimination, that, appeals to racid bias are employed in
election carnpaigru. and that a majority vote is required to win a seat. bur
they heve not dernonstrateri a subsuntid inability to elect caused by thc
rrse of a multunember districr. By recognung the pnmacy of the historT
urd e.rtent of minority electoral success and of raciai bloc voting. the Cout
simply requires thas $ 2 plaintiffs prove thek clairn before they may be
awarded relief.



83-l968JPINlON

' THORNBURG " CtXCt gS l?

thet the greater the degree to which the electoral minority is
homogeneous and insular and the greater the degree that
bloc voting oceurs dong majority.minority lines, the greaLer
wiU b€ the extent to which the minorit/s voting pnwer is
diluted by multimember districting"). These circurnstances
are neee$iary preconditioru for multimember districts to
operate to impair minority votets'ability to elect represent'
atives of their choice tbr the following reasofft. First, che

minority group must be able to demonstrate bhat it is suffi'
eiently iarge urd geographically compact to constitute a ma'
jority in a single-member district." If it is not, ali would be
lhe case in a substantially integmted district, lhe rwlti'
manbcrlotm of the disuict carutot be rcsponsible for minor-
ity votetC iubility to elect its candidstes.tr Cf. Rqerc,

" [n thir cu rupondents dlege thet within erch consested multi'
mcrnbcr di&rica thrrs existt e minority group tbrt is ufrciently large rrd
coraprct to comtituco r single-member discrict- [n r difierent kind of
car. for eremph 1 gerryrnsndar casor pleintifis might allege thst, th.
minority gloup ther ir sulficiently lergo urd compact to constituto .
single-mcmber district has b.en splir between lwo or morp multirnember
or ringle-mcmbcr 4istricts, 'rith the effect of diluring thc pocentid
rtrrnph of lhc minority vote.

''TtE reason thec a minority group mdcing cuch a chdLnge must show,
u . thrclurld mettcr, thes it is sufrcienuly lerge and geographicnlly
comprc3 to comtituGe a majority in a single-member disaict is this: Unless
minority voco6 pocE€ts the plcntitl to elect rcprerentatives in thc
alcencc of ttre chellcnged structure or pnctice, they cerrnot claim to havc
been injured by thet slructurs or practice. Thc singte.member district is
generzlly the epprcpriete srandarrd agpinsc which to maasure minority
group pocentid to elect because it is the smdlest poliricd unic frorn which
r:presentetives are etected. Tltus, if the minority group is spread ev-enly
throujhout a multimember districc, or i( rlthough geognphically cornpacr.
the minonty group is so small in relarion to the surounding whire popula-
tion thet it could not constitute a majoriry rn a single-rnember disrrtcr.
these minority vocen cannoc meintain thac they would have been able to
elect represencagives of their choice in the absence of the multimember
electoral structure. As two commentatoni have e.rplained.

'To demonstrate [that minority voteG are injured by at-large electionsl.
the minority vo(ers ,nust be sufficiently concenrraced and potitically



o tf,

83-1968{PlNlON.

tt TIIORNBURG u GINGLES;

nrpto, at 616. See also; Blacksher & Menefee 51-56' 58;

Bonapfel 365; Carpeneti 696; Devidsor 4; Jewell 130. S€c'
ond, ihe minority iroop must be able to show that it is politi' '

cally eohesiva tf the minority grouP is not politically co'
hesive, it cannoi be said that the selection of a srultimember
electoral structure thwarts. distinctive minority group in'
tercsts. Blacksher & Menefee 51-56, 58-60, *6 1 344;

Carpeneti 696-69?; Davidson4. Third, theminority must be

ablstodemonstrate that the white majority votes suffciently
as a bloc to enable it-in the absence of special circum'
stance3, such as the minority candidate nrnning unopposed,
w, infra,.st-usually to defeat theminoritX/s preferred
candidate. See, a. g., Blacksher & Menefee 51, 53, 56-57'
60. CL Rogst\, rtrptt\ at 616-61?; rfihit*omb, ntym' at
158-l5q Mc*tilton v. Escombia Cowtty, Fla,., 748 F- 2d

l0t[, l0{3 (CAS 1984). In estabtishing this last circum'
stercE, the minority group demonstrates that submergence
in a white multimember disuict impedes its ability to eleet its
chosen. reprcsentatives.

Finally, we observE that the usual predictability of the
majority's succe$t distinguishes stnrctural dilution from the
mene loss of an occasional election. Ct. Dovb v. Botdmter,

- 
U. S- 

-, - 
(f986) (opinion of Wruru, J.); BoWctt,

stlpn\ at 1ll, n. ? (MensIrAJJ., J.,. disseuting); Whitcottb,
ntry, at 153. See also Blacksher & Menefee 57, n- 33ii!;

Note, Geometry urd Geographyr Racial Gerrymandering and
the Voting Rights Act, 94 Yale L J. 189, 200, n.'66 (1984)

(hereinafter Note, Geometry and Geography).

cohesive ther. a putarive districting plur would result -in districts in which

membcrs ot' a. racial minority would consrituce a majority of the vocen,
whose clerr electoral choices are'in lact defeared by at'large voting. If
minority voters' residences are subsuntially incegrated. throughout the ju'
rMiccion. the ac-lrrge district cannot be blamed for the defeac of minority'
supponed candidates . . . . [Ttris standardl thus would only prctect racial
mrnority votes from diminution proximately caused by tha discricting plan:

it tuould wl oswre tt*;iol mhwrilies poprlional tepresmlolion."
Blacksher & Menefee 35-56 (footnotes omitted) (ernphas8 addd).



€3-1968--0PINION

THORNBURG U GINGLES

III

r9

. 
RACIALLY POLARIZED VOTING

Havingstatedthegeneraltlr.tprinciplesrelevantto
claims frat g 2 has Seen violated through the -use 

of

multimember districts, we turn to the arguments of appel'

lanta and onricus ettriae the United States addressing

*.i.ify prUrLea voting.o Fint we describe the District

Court's ireatment of raciAty polarized voiing' Next' we

.o*ia." appellanB' claim that the District Court r.rsed ut
incor.rect legal standard to determine whether racid bloc

voting in thJcontested districts was sufficiently severe to be

.ogni;aOf" as an element of a ! 2 claim. Finally, we consider

.pi.tt-ts'contention that the trial court employed ur incor'

reit de6nitioo of racially polarized voting and thus errone'

o*ty relied on statistical i"iden." that was not probative of

racial bloc voting. 
A

THE DISTBICT COURTS TREATMENT OF RACIALLY
POLARIZED VOTING

Tte investigation conducted by the District Court into the

qo"rtion of ricial bloc voting credited somo testirnony of '

lay witnesses, but rclied principatly on statisticd evidence

presented by appeltees' e-xpert witnesses; in particular that

If"rJ UV b".'bernard Grofman. Dr. Grofrnan iollected' '

and evaluated data &om 53 General assembly primary and

ienerai elecrions involving black candidacies. These elec'

Eon. *.r. held over a period of three different election year:t

inrhe :ix originally challenged multimember districts.'' Dr.

Grofman suUJected the dati to two complementary methods

of analysis-..€xtreme case analysis and bivariaie ecologicai

rThe terms'racially polarized voting" and'racral bloc voting" are used

interchangeably ttroughout this opinion-
,r,Ilre l58p re"ppo.tion^ent plan left essentidly undisturbed the-,l9ll

plan for ffve of the original six contested:nultimernber disrriccs. House

biscricc 39 alone *"s siightly modi6ed. Brief for Appelleer 8'



a-1966-OPINION

m THORNBURG rr GINGLES.

r€gression analysist:-in order to determine whether blacks

urd whites in these dlstricts differed in their voting behavior.

Ttrese uralytic techniques yielded data concerning the voting
patterns of the two races, including estimata of the Pereent-
ages of members of each mce who voted'for black candidates.

The court's initid corsideration of these data took the form
ofathree-part inquiry: did the data reveal any correlation be-

tween the race of the voter and the selection of certain candi'
dates; was the revealed conelation statistically signiflcant;
and was the difference in black and white voting patterns

"substantively signi6cant?" fire District Court found that
' 

blacks. and whites. generally preferred different candidates

and, ou th8t basis, fonnd voting in the disEicts to be racidly
corrpJated-a tte court accepted Dr. Grofttan's e.spen opin'
ion that the corelation between the race of the voter and the
voteris choice.of certain candidates was statisticdly signifi-
canLrs Finally, adopting Dr. Groftnan's terminologJlr, seeTr.

tfrc District Coun fouid both methods standard itr lho literalure for
tbeanelysirrof racirlly polarized voting. 590 F. Supp. .c367-3?8, nru '8,
rDd 3A 3c* rbo Engstrom & McDonald, Quantitativc Evidence in Voce
Dilution Utigetion: Potitical Participetion and Pohrizcd Voring l7 Urben
[aryer369 (Surnrner 1986); GroIlnan, Migalski & Noviello. Tta "Totdity
of Circumstsneec Tesf in Section 2 of thc 1982 Extenrion of the Vocing
RlghtsAcu A Socisl Science Perspective, 7 Lew & Policy 199 (Apr. 1985)
(bereincft rGrotnen, Migalski. & Noviello).

'Th+coun used tha term'resial polarizacion'to deccriba this correle-
tion. It dopted Dr. Grofmrn's definitiolt-'racial polerizerion" exiscs
whers therc is "l consisteng relationship between [thel race of the vocer
end the wey in which the vo(er vocesi" Tr. 160, or to puE it difrerently,
where "black voters and white vorcr: voce di.fferently." /d., at,20g. W€,
too, adopt. this deflnition of 'Tacial bloc" or tacidly polrrized voring.
See; iafc, at 

-.lTlre court found thar the data reilected positive relarionships and that
the correlations did noc happen by chance. 590 F. Supp. 368. utd n. :J0.

See also D. Barnes & J. Conley, Statisticd Evidence in Litigation 32-:lt
t1986): Fisher, Multiple Regression in Legd hoceedings. 80 Colum. L.
Rev. 7@, 716-?20 t 1980); Groftnan, Migalski, & Notiello 2fii.



8-l968JPlNION

THORNBURGU GINGLES U

195, the cout found that in all but two of the 53 electionsa

the'degree of racial bloc voting was 'so marked as to b€

subsh;tively signiflcant, in the sense that the results of the

individu8l el&tion would have been different depending upon

whetlrer it had been held among only the white voters or only

the black voters.'' 590 F. Supp., at' 368.

fire court also reported its findings, both in tabulated nu-

merical form and il written form, that a high percentage of
blsck vote6 regularly supported blaek candidates and that

most white voters were extiemely reluctant to voie for black

eandidates- The court rhen considered the relevance to the

existence of legalty signiflcant white bloc voting of the fact

Chat black .-Oa"t.s heve won some elections. It deter'
min€d thet in most instancel, special circumstance3, such as

incumbency and lack of opposition, rather than an a diminu'
tion in usually sever? white bloe voting accounted for these

candidates, suecess. The court also suggested that black

voters, reliance on bullet voting was a significant factor in
tlreir succesful efforts to elect curdi{ates of their shoice.

Based on all of the evidence before it, the trial court con'

cluded that each of the districtq experiences racially polprized

voting "in a periistent utd severe degree." 590 tr'. Supp',
at 36?.

B

THE DEGREE OF BLOC VOTING THAT IS LEGALLY
SIGNIFICANT UNDER $2

I
A'pp e I lant s' Argu m ent s

Nonh Carolina and the United States arg$e that the [est
used by the District Court to determine whether voting
patterns in the disputed districts are racially polarized to an

extent cognizable under $ 2 will lead ro results that are incon-

sistent with congressional intent. North Carolina maintains

'The two exceptions were the 1982 State House elections in Districrs 2l
urd 8. 590 F. Supp., ac 368. n. 31.



8-1968-OPINtON

AL TIIORNBURG u GINGLES

that the court consider€d legally signiflcurt racially polarized

voting to occur whenever "less than 5A?o of the white voters

cast 8- ballot for the black candidate." Brief for Appellants
36. Appellurts also argue that raeially polarized vgtlng is
legally li-gni6cant only when it always results in the defeat of
black candidates. Id., at 39-40.

The United States, on the other hand, isolates a single line
in the court's opinion and identifes it as the court's complete
test. According to the Solicitor General, the District Couft
adopted a standard under which lega[y significant racial bloc

voting is deemed io exist whenever "'the results of the
individual €lection would trave beea differeni depending upon
whether it had been held among only the white voters oronly
the black votent in the electiolL"' Brief for United States as

Amir:rrs Curioe 29 (quoting Gingles,590 F. Supp-, at' 368).

We rcad the District Corrrt opinion differently.

Z

The Stondotdfor Legolly Significant Racinl Bloc Votitt4

The Senate Report states that, the "extent to which voting
in the elections of the stste or politiczl suMivision is racidly
polarized," S. Rep. 29, is relevant to a vote dilution claim.
Frrrther, coufis and commentators agree thai racial bloc

voting is a key element of a voue dilution claim. See, e. 9.,
Escombio cowtty, ?48 F. 2d, at 1043; United stotes v'

Morcn4o Cau.nh4 Cornrn'n, 73f F. 2d 1&16, 1566 (CAf f t9&t);
Neuett v. Sides, 571 F. 2d 209, 223 (CA5 19?8), ceft. denied,
46 U. S. 95f (1980); Johnson v. Holifox County, i9e
F. Supp. 16l, l?0 (EDNC 1984); Blacksher & Menefee;
Engstrom & Wildgen, Pnrning Thorns from rhe Thicket: An
Empirical Test for the Existence of Raciat Gerrymandering,
2 Legis. Stud. Q. 465, 469 (I9?7) (hereafter Enstrom &
Wildgen); Parker l0?; Note, Geometry and Geography 199.

Because, ari lve explain below, the extent of bloc voting
necessary to demonstrate lhat a minority's ability to elect its
prefered representacives is impaired varies according to



E3-1968.4PINION

TI{ORNBURG u GINGLES A

s€veral factual cireumstances, the degree of bloc voting

which eonstitutes the threshold of legal significanee will va4t

ftom digtrict to district. Nonetheless, it is possible to state

some general principleg and we proceed to do so.

Ttre-purposi of inquiring into the existence of racially po'

larized voting is twofold: to ascertain whether minority grouP

members constitute a potitically cohesive unit and to deter-
mine whether whites vote su.fficiently as a bloc usually to de-

feat the minorit/s preferred candidates. See, tu'Fro, at'

Tltug, the quistion whether a given district e'rperi-
en@s legally significant racially polarized voting requires dis-

crete inquirieslnto minoriiy and white voting practices' A
showing that a signiflcant number of minority group-mem-

ben usrnlly vote for the same candidates is one way of prov'
ing the potiucat cohesiveness nece$iary to a vote-dilution.
clim, Blac]rsher & Menefee 59-60, and n" &14, and, conse-

quently, establishes minority bloc voting within the context

oi $ a And, in general, a white bloc vote that normdly will
defeat the combiaed strength of minority suPport plus white

'crossover" votes rises to the level of legally signifleant white
bloc voting. ,.-/d..0 at 60. Ttre amount of white bloc voting
that can ge4eHtty "rninimize or cancel," S. Rep. ?3; Regester, '

412 lJ. S., 
'at 

?65, black votett' ability to elect represent'
atives of their choice, however, will vary from district to dis-

trict according to a number of factors, including the nature of
the allegedly dilutive electoral mechanism; the presence {)r'

absence-of other potentially dilutive eledtoral devices, such as

majority vote requirernents, designated posts, and prohi-

bitions against bullet voting the percentage of registered
voteni in the district who are members of the minority group;

the size of the district; and, in multimember districts, the

number of seats open and the number ot'candidates in the

field.a See, e. g., Butler 8?a-8?6; Davidson 5; Jones, The

Impact of Local Election Systems on Black Political Repre'

uTtris lisc of factors is illusrnrive, not comPrehensive.



t3-l968JPlNION

24 THORNBURG u GINGLES

sentation, 11 Urb. fff" Q. 345 (1y16); U. S. Comrnission on
Civil Rights, The Voting Rights Act: Unftrlfllled Goab 38-41
098r).

Because loss of politicd power through vote dilution is dis'
tinet ftom the mere inability to win a particular election,
Whitcomb, 403 U. S., at l&3, a pattem of rzcid bloc vocing.

that extends over a period of time is morc probative of a
claim that a district experiences legally significant polariza'
tion tlran are the results of a single electiotus Blacksher
& Menefee 61; Note, Geometry urd Geography 200, n. 66
("Racid polarization should be seen iul an attribute noc of a
single eleetion, but rather of a polity viewed over time. Ttre
concenr is necessarily temporal and the analysis historical
because the evil to, be avoided is the subotdination of minor.
rty groups in American politics, not the defest of individuals
in particular electoral contegts"). Also for this reason, h a

district where elections are shown usudly to be polarized,
the fact that racially polarized voting is not prcsent in one or
a few individual elections does not necessarily negate the con-

clusion that the disfict experiences legally significant bloc
voting. Furthermore, the suctess of aminority eurdidate in
a particular election does not necessarily prove thai the
districr did not e.rperience polarized voting in that election;
special circumstances, such as the absence of an opponent,
incumbency, or the utilization of bullet voting, may explain
minority electoral success in a polarized contest.n

rThe number of elections that muss be studied in order to determine
whether vocing is polarized will vary acrcording to peftinent circurnstances.
One imponant circumstance is the number of elections in which the minor-
ity group has sponsored curdidates. Wlere a minority group has never
been able to sponsor a curdidate, courts must rely on other faccon thag
tend to prove unequal access co ths electoral proc$s. Similarly, where a

minority group has begun to sponsor candidates jusc recently, the facs thac
stagistics from only one or a few elections are available lor examination
does not foreclose a vote dilution claim.

rThis list of specid cirrurastances is illusttztive, ooc e.rclusive.



83-I96HPINION

THORNBURG u GINGLES 6

As must be apparent, the degree of racial bloc voting that
is cognizable as an element of a $2 vote dilution claim will
vary according to a variety of factual circumstances. Conse-
quently, there is no simple doctrinal test for the existence of
legally significant racid bloc voting. However, the forego-
ing general principles should provide courts with substantid
guidance in determining whether evidence thac black and
white voters generdly prcfer different candidates rises to the
level of legal significance under $2.

3

Stonfutd Utilized Ay the Dbtrict Court

Ttre DistricE Court elearly did not employ the simplistic
standad identiffed by North Carolin+-legally signifieant
bloc voting occurs whenever less than 50% of the white vot-
ers cast a bdlot for the black candidate. Brief for Appel-
lants 36. And, although the District Court did utilize the
measiune of "substantive significance" that the United States
ascribes to it-"tJre results of the individual election would
trave been different depending on whether it had been held
among only the white voten or only the black voters,"' Brief
for United States asAmians Cuiu 29 (quoting Ghtglse, S9O

F. Supp., at 368Fthe court did not reach its ultimate conclu-
sion lhat the degree of racial bloc voting present in each dis-
trict is legolly significant through mechanical reliance on this
sandard.' While che court did not phrzse the standard for
legally significant racial bloc voting e.xactly as we do, a fair
reading of rhe court's opinion reveals that the court's analysis
cordorms to our view of the proper legal standard.

'Ttre rid coun did noc actuelly employ the term "legally signi6cant."
At timca it seems to have used "subsrentive sigaificance" as Dr. Grofrnan
did. to describe polarization sevene :nough to result in the selection of
difrerent candidaces in racially sepafirte electorates. .{,t other tirnes.
however, the cout used the term'substanrively signiffcrnt" to refer to irs
ultim3te determination that racidly polrrized voting in these districts is
su.fficiently severe to be relevant to a 92 claim.



83-1968--0PINION

a THORNBUBGu GINGLES

fire District Corrrt's findings concerning black suPpoft for
black candidates in the ffve multimember districts ai issue

here clearly etablish the political cohesiveness of black voc'

ent. As is-appareni from the District Court's tabulated ffnd'
ings, reproduced in Appendix L, inftu,, black votenf support
for Utactc candidates was ovenvhelming in almosi every elee'
tion- In all but 5 of 16 prima4r elections, black support for
black candidatis ranged between 1L% and 92?o; and' in the
general elections, black support for bladc Democrai candi'
dates rznged between 87% and 96%.

In sharp contmst to its. findings of strong black suppott for
black candidates, the District Court found that a substanrial
majority of white yoten would mrely, if ever, vote for a
black candidate. In the priraary elections, white support for
blach candidates rzngd behreen 8% and 50%, and in the
general elections it raoged between 8lo ud 4Wo. See

Appendix A, infia. The court dso determined that, on
average; 8t.7% of white votetl did nof vote forany blackcan-
didate in the primary elections. In the general electioru,
white yoters almost always ranked black candidates either
lasi. or next to last in the multicandidate ffeld, excepL in
heavily Democratic arleas where white voters consistently
ranked black candidates last among the Democrats, if not last
or next to last among all candidates. The corrrt.further ob'
serred that approximately iwo-thirds of white voten did not
vote for blaci( candidaces in general elecliong, eveo after the
candidate had won the Democratic primary and the choice
was io vote for a. Republican or for no one.t

'In stacing ther 81.7% of white voseE did not vote for any black candi-
detes in rhe primery eleetton and that two"thirds of while vocer: did nog

vote for black csndidates in general electiong. the Districs Coun aggre'
gped dare from ail six challenged multimernber districts' apparently for
ease of reponing. The inquiry into the existence ot'vote dilusion caused

by submergence in a multirnernber dissricr is diEuics'sP€cific. When con'
sidering seveml separate vote dilution claims in a stngle case, couns rnusg

noc rely on data aggreg;ated hom all the chdlenged districts in concluding
that racidly polarized voting e.rists in each district. In tie instani case,



Its-IgotJPINION

THORNBURGU GINGLES N

While the District Court did not state expressly that the
percen0age of whites who refused to vote for black,:andidates
in the contested districts would, in the qsual cou$le of events,
rcsult in the defeat of Ehe minority's candidates, that conclu-
sion is epparent both ffom the court'g factud findings and

from thq rest of its analysis. FiEt, with the exception of
Ilorrse District &3, see infio, lt-, the trid court's fuidingE
clearly show that black voters have enjoyed only minimal and

sporadic succe$t in electing representatives of cheir choice.

SLe Appendix B, infm. Second, where black candidaces

won eliction, the court closely e.ramined the circumstances of
those electioru before concluding that the suctess of these

blacks did not negate other evidence, derived from all of the
elections shrdi€d in each district, lhat legally signiffcant ra-
cially polarized voting e.{ists in each district. For example;
the corrrt took account of the beneflts incumbency and run-
ning essentially unopposed confened on some of the success'

U UUcf candidetes,! as well as of the verT different order of

houcvar, it b clser bom thc trial courds tabuleted flndingr erd from the

.r&ilriB thet 'ren befor. it, I APP., Exg 2-10. thrt the court relied on

d.t3 thra war spoeific lo erch indiYidurl diltrict in coucluding thet each dis"

trict experienccd legdly signifrcant rrcidly polarizld votingl
tForexanrpb, thc conn found that incumbency aidcd a successful black

candidate in thc IYIS prirnary in Senate Disu.ict 2g The conrt abo noced

th$ in Hou.G DLtrict 23, a bleck eandidecc who Seined election in lyl8,
lso. .rd 19t8, nn ucoorecred in the l9r8 generd election and in both ths

firDrry and gcneral elections in 1980. In l9E2 there was no Republican

opposition, a frct the trial court incerpreted to mean that the generzl

eiection was for ail practical p1g.PoEes turopposed. Moreover, in rha 1982

primsry, there were only two white candidatec for three seaB, so thet one

bleck candidate hed io succd. Even under this condition, the cou.n

rcrnarked, 63% of white vocen still refused to voce for the bhck irrcum'

bens-who was the choice of 9096 of the blacks. [n House District 21.

where a black won election to the six-member deleg'ation in 1980 and 1982'

tlre conn, found that, in rhe relevanc primaries approximarely 60% to 70?o oI
whirc vocers did not vote for the black candidate, whereas approximarely
t0% of blacks did. The cor.ut additionelly obsen'ed that although winning
thc Democraric prirnary in this disuict is historically tantarnounc lo



83-1968JPINION

A TIIORNBURG U GINGLES

preference blecks and whites assigned black eandidates,t in
reaching its conclusion tbat legally significant racid polariza-
tion exists in each district.

We conclude that the District Court's appruach, which
tested data derived bom three election yean in each district,
and which revealed that blacks strongly supported black can-
didates, whild, to the black candidates' usual detrirnent,
whites rzrely did, satisfactorily addrtsses each facei of the
proper legal standard,

c
EVIDENCE OF RACIALLY POLARIZED VOTING

L

Appell,onts' Atytutrnt
North Carolina and the United States. also contest the evi-

dence upoo. which the District Court rclied in flnding that
voting patteras in the chdlenged disEicts were racially po-
larized. They ar3ue that the term.'racially polarized votingl'
must, as a matter of law, refer to voting patterns for which
the'principolcouss is race: They contend that the District
Corrrt utilized a legally incorect. defuiition of racially polar-
ized voting by relying on bivariate statistical urdyses which
rner.ely demonstrabd a conclotiott between the race of the
voter and the level of voter eupport for certain candidates,
but which did nob pnove that race was the primary determi-
nant of voters' choices. According to appellants and ghe

United States, bnly multiple regression urdysis, which can
take account of other variables wHch might also esplain vot-
ers'choices, such as.'larty affiliation, age, religion, income[,]

election, 55% of whites declined !o voie for the Democatic bleck candidate
in tha genenl elecrion.

r'llre court noted thet in the l9t2 prinrary held in House Disuict 36, ouc
of a fleld of eighr, the successful black candidase was ranked ffrsc by bla*
vorenrr bu! seventh by whites. Similarly, the court forurd thas the rwo
btacks who won seals in the five-member deleg;ation from Horse Districc 39
were ranrked flnt and secood by black voter:, buc sevenlh urd eighrh by
white vocen



a-r96t{PtNION

THOBNBURGn GINGLES D

incumbency, education, campaign expenditures," Brief for
Appellano42, 'tnedia use measured by cost, . . . name,.iden'
tifiiation, or distance that a candidate lived ftom a particular
precinct," Brief for United Siates I Amialc Curiu 30,
ru 5?, can prove that race was the primary determinang of
voter behavior.rr

Whetier appellants and the United States believe that it is
the voter's race or the candidate's race that must be the pri'
mary determinant of the voter/s choice is undear; inde€d'
their catalog: of relevant variables suggest both.r Age, rcli'
gion, incomi, and education Seem most relevant to the voter;
inetrmbency, campaign expenditures, name identiflcation,
and medis us€ are pertinent to the caodidate; and party afllli'
ation eouH refer both to the voter and the candidate- In
either case, we disagree: For purposes of $ 2, the legal con'
cept of racidly polarized voting incorporates neither qsusa-

tion nor intent. [t means simply that the race of votetl cor'
relatee with the selection of a certain eandidate or candidates;
thai is, tt refers to the situation where different races (or
minority language groups) vote in blocs for different candi'
dates. Groftnan, Migatski & Noviello 203. As we demon'
strate below, appellants' theory of racially polarized voting
would thwart the goals Congress sought to achieve when it
amended. $ 2 and would prcvent courts ftom perforrning lhe
"functiond' uralysis of the politicd process, S. Rep. 30,
n. ll9, and the "searching practical evduation of the 'past

r Appellana arpre that plaintifrs must establish thac rzce was the
primery dererminant of voter behanor as part of their pnzrc/ccre showing
of polarized voting; the Solicitor Generai sugSests that plainrilfs make out a
prdzu, lasic a* merely by showing a correlation between rzce urd the
selection ofcertgin candidetes, buc that defendants should be ablc to rebut
by showing thst fafror: other than r?ce were the principd causes of voten'
choicec. We rejecr boch argumen:s.

rTlre Fifth Circuit c:rltes on wNclr North Carotina and the Solicitor
General rely for their position are equelly embiSrous. See Lec County
Bnrch of NAACP v. City of Opcliko, ?48 F. 2d 14n}. l@ (1984); Jotes v.

C ity of Lubboc&, 730 F. 2d ?39, 234 ( 1984) (Higginbotham, J. , coacurring).



A-I96E.-OPINION

30 THORNBUBG u GINGLES

and present reality,"' id., tt30 (footnote omitted), mandaCed

by the Senate Repon. ,e
Cottsotiotl- Inelannt b Section 2 Inqu:'uy

The 6rst neason we reject appellanis' argument that ra-
cially polarized voting refers 0o voting patterns Lhat are in
soml way coused by tz,ce, rather than to voting patterns'that
are merely cotrelaled uith the mce of tha uot*r, is that the
rearrcrul black and white voters vote differently have no rele-
yance to the central inquiry of $ 2. By contrast, the correla'
tioo between ruce of voter and the selection of certain candi-
dates is cnrcial to that inquirY.

Both $2 itsef and the Senate Report make clear tha! the
critical question in a g 2 clairo is whether the use of. a coa-

tested electoral practice or stnrchrre results in members of a
protected group having less opportunity than other members
Lf tle elecioraie to participate in uhe political process utd to
elect representarive! of their choice. See, e'- 9-, S- Rep. 2,

ZT, 8,29, tr. 118, 36. As we explained, su?rut trt 

-,multimember districts may impair the ability of blacks to
elect representatives of their choice where blacks vote'suffr'
ciently as a bloc aE to be able to elect their prefered candi-
dates in ablack maiority, single-memberdistrict urd where a
white majority votes sufrciently as a bloc usually to del'eat

the candidates chosen by blacks. . It is the diffrmce be-
twe€n the choices made by blacks and whites-not the rea'
sons for that differenc*-that results in blacks having less

opportunity than whites to elect their prefered represent-
atives. Consequently, we eonclude that under the "results
test" of $ 2, only the correlation between lzce of voter and se-

lection of certain candidates, not the causies of the correla-
cfirn, matters.

The irelevance to a $ 2 inquiry of the reasions why black
urd white voters vote differently suppofts, by itself, our
rejection of appellants' theory of racially polarized voting.
However, their theory contains other equally serious flaws



E3-I96E-OPINION

THORNBURG u GINGLES 3r'

that merit further attention As we demonstrate below, the

.aation of inelevant variables distort the equation and

yi.fa. i.roft that are indisputably incorrect under $ 2 and

the Senate RePo*.
&

Roce of Votst os Prirnl,rl Detqmbuntt of Voter Behwi'or

Appellants and the united states contend that the legal

*n*.pt of ,tzcially polarized voting" refers not to voting
patterrs that are nieiely conc14ttd 4lh tlu aotcr'E rzce, but

io voting patterrui that are d^tam1*d prirnorily W the

itn', rico, rather Lhan by the Yoter's other socioeconomic

draracteristics.
The flrst problem with this argument is that it ignorer the

hct that mimbers or'geographically insular racid and ethnic
g*op. ftequently share iocioeconomic characteristics, such

L i*or" ievel, employment stahrs' amount of education,

housing and ot}er lirini conditions-, religion, language, and

so fort[. See, a. g., Butler 902 (Minority group 'rnembers'

sbar.ed conceme, including political oneS, arE . . . a function

of group status, and as such are largely involrurtary-' ' '. ' As a

gro"p utacks are conceraed, for example, with.police bnrtal-,
f,y, suUstandard housing, unemployment, etc-, because-these

proUt.t* fall disproportionately upon the Eo!q':); S' Vefta
6. U. Nie, Participation in Americra l5l-152 (1y12) (hereinaf-

ter Verba & Niei (,,socioeconomic status . . . is closely re-
lated to race. Blacks in American society are likely to be in
lower-status jobs than whites, |o have less education, and !o

have lower incomes.") Where such charzcteristics are

shared, race or ethnic group not only denotes color or place of
origin, it also functions as a shorthand notation for common

ro"I^l and economic characteristics. Appellants' defuiition of
racially polarized voting is even more pernicious where

shared characteristics are causally related to race or ethnic'
ity. the opportunity to achieve high employment status and

ineome, for example, is often influenced by the presence or
absence of racial or ethnic discrirnination. A definition of ra-



E3-1968--0PINtON

3e TIIORNBURG u GINGLES.

eially polarized voting which holds that black bloc voting doe+

not exisi when black voters' choice of certain candidates is

ruost strongly infruenced by the fact that the voters have low
incomes and menid jobs 

-when the rcason most of those
voten have menial jobs and low incomes is ataibutable to
past or present racial discrimination-nrns counter to the
Senate Report's instruction to conduct a searching and prac'
tical evaluation of past urd present rcaliff, S. Rep. 30, and
interferes with the purpose of the Voting Bights Act to elimi-
nate tbE negative effects of past discrimination on the elec'
toral opportuniti$ of minorities. 1d,., zl5, 40.

Furthermott, under appellants' theory of rzcially polarized
voting, eyen uncontrovertible evidencs that, sandidateg
strongly preferred by black voten are olwotls defeated by a
bloc voting white majority would be dismissed for failure to
prove racid polarization whenever tha black ard white popu'
lations could b€ described in terms of other socioeconomic
characteristics.

To illusAzte, assutne a racially-mixed, urtan multimember
districtin whidr blacks andwhites potts€ss the samesocioeco-
nomic characteristics that the record in this case attributes to
blacksand whites in Halifax County, a part of Senate District
2- Ttre uurud mean income for blacks in this district is

$10,466, and 41.8?o of the black community lives in poverty.
More rhan half-El.ltut black adults over the age of 25

have only ur eighth grade education or less. Just over half
of black citizens reside in their own homes; 48.97o live in
rental units. And, almost a third of all black households are'
without a car. [n contrast, only l2.6Vo of the whites in the
district live below the poverty line. Whites enjoy a mean in-
come of S19,042. White residents are better educated than
blacks--only ?5.67o of wNtes over the age of 25 have ordy an

eighth grade education or less. Furthermore, only 26.2?o of
whites [ve in rental units, and only 10.27o live in households
with no vehicle available.. 1 App., Ex-dA. As is the case in



83-I96E.OPINION

THOBNBURG u GINGLES 33

Senate District 2, blac}s in this hypothetical urban district
hsve never been able to elect a rePresentative of their choice.

According to appellants theory of racially polarized voting,
proof that black and white voters in this hypothetical district
iegularly choose different candidaces and that the blacks''
prefened candidates regularly lose could be rejected as not
probative of racid bloc voting. fire basis for the rejection
would be that blacks chose a certain candidate, not princi-
pally because of their race, but principdly b**9 this candi-
aarc Uest represented the interests of residents who, because

of their low incomes, are Particularly interested in govern-
ment subsidized health and welfare seryices; who are gener'
ally poorly educated, and thtrs share aa interest in job tt?in-
ing prograu; who are, to a greater extent than the white
cominuniry, concerned wittr rent control issues; and who'
f;rvor major public transportation expenditures. Similarly,
whites would be found fo have voted for a different candi-
date, not principdly because of their rzce, but primarily
because that candidate best represented the interests of
residents who, due to their education urd income levels, and
!o their property and vehicle ownership, favor gentriflcation,
low residential property taxes, and e.xtensive expenditures
for street urd highway improvements.

Congress could not have intended lhat courts employ this
definition of racial bloc voting. First, this defuiition leads to
results that are inconsistent with lhe effects test adopted by
Congress when it amended $ 2 and with the Senate Report's
admonition that courts take a "functiongl" Yie,,Y of the politi'
cal process, S. Rep. 30, n. 119, and conduct a searching and
practical evaluation of reality. 1d,., ac 30, A test for racially
polarized voting that denies the fact that race and socioeco-
nomic characteristics are often closely correlated permits nei'
ther a practical evaluation of reality nor a functional analysis
of vote diluuion. furd, contrary to Congress' intent in adopt'
ing the ?esults test," appellants' proposed definition could
result in the inability of minority voten to establish a critical



o

88-1968--OPINION

34' TIIORNBURG a GINCLES

element of a vote dilution claim, even though both ra'ces

engage in."rnonolithiC' bloc voting, id-t tt&3, and generations

ofEdct voters have been rurable to elect a rcpresentative of
their choicE

Second, appellantsf lnterpretation of tacidly Pol.arized
votint'' creaiis ur irreconcilable tension between their pro'
posed-treatment of socioeconomic characteristics in the bloc

voting context and the'Senate Repor"u's statement that "the
extenl to which members of the minority group . . . bear the
effects of discrimination in such areas as education, employ'
ment and health" may be relevant to a $ 2 claim. Id-, tt D-
W'e can furd no support in either logic or the le{islative his-

tory for ths uroroalous conclusiort to *hi.lt appell-utts] nosi'
tiori leads,-that Congress intended, on the one hand, that
p-of that a minoriti gtluP is predgminately poor, ruredu'
bted, and rgr5ealthy should be considered a factor tending to
prlove a $2 violation; but that Congress intended' on tbe
other hand, thae proof that the same socioeconomic charac'
teristica gfeatly influence black voterC choice of candidates
should desroy these voters' ability to establish one of the
most importent elements of a vote dilution claim-

{
Roce of Candifute os Prhnory Detertrainont of

Voter Behodor

Nortb Carolinas and the United State's suggestion that
racially polarized voting means that voters select or reject
candidates principollg on the'basis of the candidafa's ,zce is
dso misplaced.

First, both the language of $ 2and a functional understand-
ing of the phenomenon of vote dilution mandate the conclu'
sion that the race of the candidate Pqt se is irelevant to racial
bloc voting analysis. Section 2&) states that a violation is
established if it can be shown that members of a protected
minority group "have less opportrurity than other members of
the electorate co . . . elect represeniatives o/ their clwice."



t3.I96E{PINTON

TIIOBNBUBG u GINGLES 36

(Emphasis added). Because both minority utd majority vot'
ers often select members of their own race as their prefered
representatives, it will frequently be the case that a black
candidate is the choice of blacks, while a white candidate is

the ehoice of whites. Cf. Letter to the Editor from Chandler
Davidson, 1? New Perspeetives 3tl (Fdl 1985). Indeed, the
facts of this case illustrate thac tendency-blacks preferred
black candidates, whites prefered white candidates- Thus,
as a matter of convenience, we and the District Court may
rcfer to the prefered representative of black voters as the

'black candidate" and to the prefened representative of
white voten as the'\rhite candidate." Nonetleless, the fact
tiat raca of voter and mce of candidate is often corelated is
uot directly p€ftinent to a $2 hquiry. Under $2, it is the
stotus of the candidate as the chosen represmtotiae of e
porticulor ru,cio,l grot'p, not the race of the candidate, ihat is.

impoftanr.
A.o rurderstanding of how vote dilution through submer'

gence in a white majority works leads to the sahe conclusiott
The essence of a submergence claim is that minority group
members prefer certain candidates whom they could elect
were it not for the interaction of the chdlenged electoral law
or stnrctur€ with a white majority that votes as a significant
bloc for different candidates. Ttruq, iur we explained in Part
lll, tuyrv., the e-tistence of racial bloc voting is relevant to a
vote dilution claim in two ways. BIoc voting by blaeks tends
to prove that the black community is potitically cohesive, thai
is, it shows that blacks prefer cenain candidates whom they
could elect in a single-member, black majority district. Bloc
voting by a white majority tends to prove that blacks wiil
generally be unable to elect representatives of their.choice.
Clearly, only the race of the voter, not the race of the candi-
date, is relevant [o vote dilution analysis. See, a. 9.,
Blacksher & Menefee 59-60; Grofrnan, Should Represent'
atives be Typical? 98; Note, Geometry and Geography 2trI.



. E-I968JPlNION

36 THORNBURG u GINGLES

Second, appeltsnts' suggmtion that racially polarized vot'
ing refers to voting patterns where whitea vote for white
candidatei because they prefer members of their own race or
are hostila to'blacl€, as opposed to voting patterns wherp
whites vote for white candidates because the white candi-
dates spent mone on their campaigns, utilized more media
c0vemge; and thus enjoyed greater name recognition than
the black candidates, faile for another, independent reason.
This argument, like the argument that the race of the voter
mnst be the primary determinant of the vote/s ballot, is
inconsistent with the purposes of $ 2'and would render mear'
ingless the Senate Report factor that addresses the impact of
low socio€conomic status on a minority group's level of potiti-
cal participatiott-

Clngreis intended thst the Voting Bights Act emdicate in-
equdities in political.opportunities that exist due to tha vesti-
gid effects of past purposeful discriminetion. S. Rep 5, 40;
II. B- Rep. No. n-U|, p. 3I (1981). Both this Court and
other federal courts,have recognized that politied participa-
tion by minorities tends.to be dePressed where minority
grcup members suffer effects of prior discrimination such as

inferior education, poor employment opporhrnities, and low
incomes. See, €. g., Whitc v. Regater, 4LZ U. S., at
768-769; Kirksey v. Boord.of Supentissfi of Hind,s Cumty,
Miss.,564 F. 2d 139, 145-146 (CAi) (en banc), cert. denied,
,134 U. S. 968 (19f,7). See also Verba & Nie 152. The Sen-
ate Report acknowledges this tendency and instnrcts that
"the extent to wHch members of the minority group . . . bear '

the effects of discrimination in such areas as education, ern-
ployment and hedth, which Nnder their ability to pafticipate
effectively in the political process," S. Rep. 29 (footnote
omitted), is a factor which may be probative of unequal
opportrurity to participate in the political process and to elect
reprrsentatives. Courts and comrnentatoE have recognized
funher chat candidates generally must spend more money in
order to win election in a multimember district than in a



E3.I968JPINION

THORNBURG u GINGLES n

single-member district. See, a. g-, Gtottes v. Botws,343 F.
Supp. 7C{., 7?.u721 (WD Tex. 1912), aff'd 1n partl ret'd in
pa*'srrb twm. Whita v. Regcster, &tqro- -Bert7 

& Dye 88;

bavidson & Fraga, Nonpartisan Slating Groups in-an At'
Largp Setting, in Minority Vote Dilution 122-123; Dertpr
SAf, n. 126; Jirrell l3f; Ibrnig Black Representation on City
Councils, 12 Urb. A-f" Q. m,80 (lyl6)- If, because of in-
ferior education and poor employment opportrurities, blacks

earn less than whites, they will not be able to provide the

candidates of their choice with Che same level of financial sup
port that whites cur provide theirs. 'fitus, electoral losses,

6y candidates preferred by the blffk commrurity may well be

attributable in part to the fact thet their white oPponents

outspent them. 
- 

But, the fact is that, in this instance, the
econlmic effects of prior discrirnination have combined with
the multimember electoral stnrcture to afrord blacks less

opportunity than whites lo participate in tJre po[qd prycess

aira to elect representatives of their choice- It would be
both anomalous and lncoruistent with eongressional intent to
hold that, on the one hand, the effects of past discrimination
which hinder blacks' atility to participace in the political
process tend to prove a $2 violation, while holding on the
other hand thst, where these same effects of past discrirnina'
tion deter whites ftorn voting for blacks, blacks cannot make

out a cnrcial elemeni of a vote dilution elaim- Accord,

,Esmmhio County, ?48 F. Zd, at 1043 ("'the failure of the
L.l;cll:-i l,; sr,li,:!t iv!:it,: vuic:: n'iiry l:e tlu:;rl by 1!.4.:1j.-'Jl;: '-rf

p.;,-st tl!:,':'.rt.it:;;ii,i1'") (riu.:r'uir:g l-l *i,;.'.i illriir:s v. -rlt: ji"r's

t.'iu:tl1l lt.,rtl'rt'it,::;9 1,. 2rl .li.Z:1, i*lti trl.-!11 I3S-l)); Iin't!,.J
..:,'i:1,.S v. .r,!t:-,,i!5O CO,r ,rl':l L';.t:t't:i'tt., ';If l F. !11 li.:ti, i;A?
(CA]1 i98.1), appeal disnrissed, cert. denie'1, {69 U. S- --(1984). 

5

Rociol Animosity os Pimory Determ,inont of
Voter Belwrior

Finally, we reject Lhe suggestion that racially polarized



83-1968--0PtNION

3t THORNBUBG u- GINGLES

voting rcfen only to white bloc voting which is caused by
whitJvoter: roaal lwstility toward black candidates.! To

accept this theory would ft't itrate the goals Congress sought

!o achieve by repudiating the intent test of MoAile v. Boldtn,
446 U. S. 55 (1980), and would prevent minority voten who

have clearly been denied an opportunity to elect represent'
atives of their choice from establishing a eritical elernent of a
vote dilution claim.

In amending $2, Congress rejected the requiremeni an'
noruteed by thi" Court in Boldcn, ctt?lu,. that- $2 plaintiffs
must prove tbe discriminatory intent of state or loczl govern-
ments in adopcing or maintaining the chdlenged electoral
mechanism.s Appellants' suggestion that the discriminatory
int€nt of idividusl white Yoten must be pnoven in order to
make out a !2.claim must fail for the very Fea{xlns Congress
r.ejected the intent test with r$Pect to governrnentd bodies-

See Engrttom, I1te Reincarnation of the lntent Standard:
Federalludges and At-Large Election Cases, 28 How. L- J.
495.(1985).

Tlre Senate Report states that one r€ason the Senate Corn-
mittee abendoned the intent test was that "tJre Comrnittee
. . . heard penuasive testimony that the intent test is umec'
essarily divisive because it involves charges of racism on the

rlt b tnrs. rs wc heve recognized previously, thst racid lrostility may

oftan fuel r.ci8l bhc votin& Uaibd Jcutlth Orgoairatiott v. Coray. {30

U. S. l{4, 166 (lgrl): Rogea v. Ld4c,458 U. S.. er 683. But. as we

oxplein in this decision. lhe actuel motivagion of the voter hec no relevance

to a vote dilution claim. This is noc to suggest thaa racid bloc voting is
:-.ijrrr.'tr,,irl.i; 5;, 1:.,:ra ..\,taf lrrl:r.;lCr rr,frrt: tcS s,ifh ruCe, ,bYiOU...ly

it is ':u[,. it .-i,r.:i,i 'l-r r€..i,...-',lttr..l, '.1;1,,1g1', ;: '.::e 
qoli:!,r'a]lriur ],as ,.b-

:- ireri, t!.:.t "'il!',t :.|)c€lrce ,ii l'ac1el a;',itn;.. .r iru! oile .lelncrrl uf ra:ei:

rr:;iri:.iit Y. " I l,r( e, (.-1.ir;t€tr-r- itr,l'li,,gr', 1:hy ?t)8..

"'ii,,,S, l.iiit. Fr[)r rt:'ni,:r:!,j.1 thc grij..::jdr:I l],xt ihe.r'urd-" "otl ir(C'.rtllrt

rf r!r:,,, ' ci,:.'.i..,r.tl l:r S :l(a), ,.r'e:itrl i;i:y rt:qt;iit,i:lt:lt ',t' Pur;:.:ri'.;l
discrinrinadon. 'tllt is parenrly [clear] that, Congress has used lhe rvords

'on accouo! of mce or color' in the .{ct lo meen \.vlth resPecl to' race or
color, end noG !o coonole ury required purPos€ of racid discrimination."
S. Rep. n-8, n 109.



83-1968--0PINION

TITORNBURG U GINGLES 3}

part of individual officials or eniire comrnunities.' S. Rep'

36. The Committee found the testimony of Dr. Arthur S'

Flemming, Chairman of the United States Commission on

Civil Rig[6 particularly persuasive. He testiffed:

''[Under an intent testl n]tigaton rcprcsenting ex'
cluded minorities will have to explorc the motivations of
individual council members, mayont' and other citizens'
The question would be whether their decisions were
motivited by invidious racial considerations- Such

inquirier can only be divisive, threatening to destroy any

existing racial progress in a comrnunity. It is the iatent
test, not the results test, that would make it necessary

to brand individuals as racist in order to obtain judicial

rrlief.''
IDrd. (footnote omitted).

fire grave threat to racial Progrms and harmony which

CongrCs perceived from requiring proof that racism caused

the idoption or maintenanc€ of a chdlenged electoral rnTht-
nism is present co a much greater degree in the proposed rt
quirement that plainr,iffs demonstrate thag raeial animosity
dehrmined wNte voting patterns. Under the old intent
tesq plaintiffs might succeed by proving only'thaf a lirnited
numblr of elected officials were racist; under the new intent
test plaintiffs would be required to prove ihat most of the
whiti community is racist in order to obtain judieid relief-
It is diffrcult to imagine a more racially divisive requirement.

A second reason Congress rejected the old intenl test was

that in most cases it plAced an 'tnordinacely difficult burden"
on $ 2 plaintiffs. lbid. The new intenr, test would be

;:r-.r:t!!v, if t:ot nnore, l',1.'rrlpp.,r11ig'. In i,rdpr to flrrrve that a

,y.e'4ic Jutl.i;r-"tusj;"l l..i:.,. 'Ly-4.tertirit*d rr hite \ utr:r's'

ballots, it would be necessary to demonstrate that other
potentially relevanc cousol factors, such as socioeconomic

characteristics and candidate e.xpenditures, do not corelate
better than racial animosity with white voting behavior. As
one commentator has explained:



-

a-l968--oPINION

d0 THORNBURG u CTNGLES

"Many of the[se] independent varigbles . . . would be

all but impossible for a social scientist to operationalize
as intend-level independent varisbles for use in a mulii'
ple regression equation, whether on a stepwise basis or
iot To conduct such an extensive statistical urdysis'
as this- implies, moneover, can become prohibitively
expensive.

"Compared to this sort of effort, proving discrirnina'
tory intenL in the adoption of ur at'large system is both
simple and inexpensive." McCrzry,'Discriminatory In-
tent: The Continuing Relevance ot '11s'pose" Evidence
in Vote-Dilution Lawsuits, A How. L. J. 463, 492

0986).

lte final and most dispositive nealxln the Senate Report
repudiated the old intent test was that it "asls the wrong
question.- S. Rep. 36. Amended $ 2 asks instead \hether
minorities have equd access to the proces of eleeting their
representatives." Ibid.

Focusing on the discriminatory irltent of the votett, rather
than the behavior of the voters, dso asks the wrong question-

AII that raattetr tuder $ 2 and under a functional theory of
vote dilution is voter be*ravior, not its explanatioru. More-
oveti as we have explained in detail, cu'Ptu,, requiring proof
that racial considerations actually coused voter behavior will
result --conrrary to congressional intent-in situations where
a black minority that functionally has been totally excluded
ftom the politieal prccess will be unable to establish a $ 2
violation. fire Senate Report's remark concerning the old
intent test thus is peninent to the new iest: Ttre requi.rement
that a"court . . . make a separate. . . finding of intent, after
accepting the proof of the factors involved in $e White [v.
Regester, 4fZ U. S. 7551 analysis . . . lwould] seriously
clou[dJ the prospects of eradicating the remaining instances
of racial discrimination in Arnerican elections." Id., at tl.
We therefore decline to adopt such a requirement.



63-196&4PlNlON

THOBNBURG U GINGLES

6
' SumtnarY

In sum, we would hold thsc the legal concept of racially po-

lerized voting as it reletes to elaims of vote dilution, rcfers
only to the exigtence of a corelation between the rzce of vot'
ersand the selection of certain candidates. Plaintiffs need

not prove causation or intent in order to prove a yrimo faci"e
case- of racial bloc voting and defendants may not rebut that
case with evidence of caruation or intenC-

ry
THE LEGAL SIGNIFICANCE OF SOME BLACK

CA}IDIDATES' SUCCESS

A
North Carolina and the United Statcs maintain that the

District Court failed to accord the proper weight to the
success of some black candidates in the chdlenged districts.
Black residenle of these districts, they point out, achieved
improved repnesentation in the 1982 General Assembly elec'

tion-r They also note that blacks in House District 23 have
enjoyed proportional representaiion consistently since 1973

and. that blacks in the other districts have occasiondly
enjoyed nearly proportional representation.r This electoral

'Thr nhvant resulB of &e l@ Gcnent Asrmbly election lnt al
follows. llouse Distric 21. in which blscks mdte up 21.8% of the popub'
Lion, elected one black to the six.penon House delegation" llouse Distric!
23, in vhich blacks constitute 36.3% of the populasion, elected one bleck to

the three-person House delegation. [n Hogse District 36, where blacks

consGituce %.5% oi lhe population. one blnck was elected to the eight'
member delegation. ln House Disrricr 39, where 5.1?o of the populrdon
is blrcL, two blacks were elected to che five'member delegation. [n Sen'

ate Discrict '13, where blacks constiture 2{.39o of the populetion, no black

was elected to thc Senate in 1988.
rTtre United States points our that. under a substantidly identical

predecessor to the chdlenged plen, see n. 15, su'rllo., House District 2l
enctea a bbck to its six-member delegation in 1980, llouse District 39

4l



t3-I96E-OPINION

42 THORNBURG U GINGLiS I

sucress demonstrates conclqsively, appellsnts and the United
states artue, that blacks in those disgricts do noi have {less

opportrrnity than otier members of the electorate to partici-
piie in the potitical process end _t9 elect representatives.
of U"U choice' 42LJ. S. C. $ 1fi3(b). Essentidly, appel'
lants and rhe United States contend that if a racial minority
gains proportional or nearly proportional representation-in a

s-ingte-etection, thab fact alone precludes, as a matter of law,

finding a $2 violation.
SecEon 2 providee that "[t]he extent to which members of

a protected class have been elected to office . . . ic one cir'
cu'nrstance whictr rnsy b€ considercd-" 42 U. S- C. E lyI3O).
Tlre Senate Committee Beport dso identjfies tJ1e extent to,

which minority candidet€s,heve succeeded as a pertinent fac-
tor. S. Rep. 29. However, the Senste Report expressly
states that "the election of a few minority candi&tes does nob

hecesssrily forectosa the possibility of dilution of the bleck
vots;'' noting that if it did, "the possibility e-rists that ths
majority citizens might evade t$ 2l by muripulaling the elec'
tion of a,'safd minority candidate." Id-, ai 29, n. ll5' quot-
ing Zimmer v. McKeithsn, 486 F. ?i lW?, 1307 (CA5ly73)
(en banc), aff'd nl6 non. Eost Conoll Porish Sciool Bwd
v. Mattholl,424 U. S. 636 (lyt6) Qer curiam)- fire Senate

Committee decided, hstead, to 'tequire ur indePendent

consideration of the record.'' S. Rep. 29, n. 115. The Sen-
at€. Report also emphasizes that the question whether "the
potitical processes are'equally open'depends upon a search-
ing practical evaluation of the last and present reality.'"
Id., at 30 (footnote omitted). Thus, the language of 12 and

its legislative Nstory plainly demonstrate that proof that
some minority candidateg have been elected does. nou fore'
close a $2 claim.

Moreover, in conducting its "independent consideration of
the record" urd its "searching practical evaiuation of the'past

elected a black to its flve-member delegadon in lyr{ and 19?6' and Senare

District 2 had a black Senetor bctween 1915 ud 1980.



E8-1968--0PINION

THORNBUBG U GINGLES €

and present reality,"'uhe District Court could appropriately
taka account of the circumstances surrounding recent black
electoral success in deciding its significance to appellees'
claim. In particular, 8s the Senate Report makes clear, /d.,
tt D, ru ll5, the court eould properly notice the fact that
black electoral success increased markedly in the 1982 elec'
tion -an election Lhac occured after the instant lawsuit had

been fited-and could properly consider to what extent "the
pendency of this very litigation [mighc have] worked a one'
tirne advantage for black candidates in the form of unusual

organizd political suPport by white leaders concenned to
foresall single-mernber disriering."' 590 F. SuPp., at 36?,

* t7.
Nothing in the statute or its legislative history prohibited

the court hom viewing with some caution black candidates'
suecess in the 1982 election, and ftom deciding on the basis of
all the relevutt circumstances to accord greaLer weight to
blaclcd relative lack of succe$i over the cour:se of several
recent elections. Consequencly, we hold ghat the District
Court did noC etr, iul a mitter of law, in refusing to treac the
fact that some black candidstes have succeeded as dispositive '
of appellees' $2 cla,im. Where multirnember districting'gen:".'
erally works to dilute the minority vote, it cannot be de-

fended on the ground that it sporadically and serendipitously
benefits minority voters.

'See also Zimnttr v. -llcKathen .lSS F. U lryl, 1307 (CA5 tg?:l)
("tWle csnnoG endone she view tha[ rhe suoce!]E of black candidetes at the
polls necessarily forecloses the possibility of dilution of the blcclt'{ote.
Such success might, on ocession, be atrributable to the work ofpoliticians.
who, apprehending thac the iuppon of a black candidace would be potiti'
cally e.rpedienr, eampaiga to insute his election. 0r such success might be

artriburable to political suppon motivated by dilferenc considerations-
narnely that election of a black candidare will thwart successful chdlenges
to electoral schemes on dilurion grounds. In either situetion, a candidate
could be elccted despite the rtlative political backwardness of black
rccideocs in che electoral district).



88-1968-4PINION

THORNBURG U. GINGLES

B

Ttre District Cotrrt did err, however, in ignoring the
signiflcance of the fiLstained success black voten have ex'
perienced in llouse District 23. In that district, the last six
ilections have resulted in proportional represeniation for
black residents. This persistent proportional representation
is inconsistent with appellees' allegation that the ability of
black voters in District 23 uo elect representatives of their
choice is not equal to that, enjoyed by the white majority.

In some situations, it may be possible for $ 2 plaintiffs to
demonstrate that such sustained success does not aceurately
reflect lhe minority group's ability to elect its preferred
rcpresentatives,t but appellees have not done so het'e. Ap'
pellbes presented evidence relating to black electoral sucee$l
in the last three election; they failed utterly, though, to offer
any explanation for the success of bladt candidates in the
previous three elections. Consequently, we believe that the
District Court elred, as a matter of law, in ignoring the
sustained succe$l black voters have enjoyed in House Dis-
trict 23, urd would rever:ie with respect to that Disuict.

v
ULTIIYhTE DETERMINATION OF VOTE DILUTION
Finally, appellants and the United States dispute tbe

District Court's u,ltimate conclusion that the multimember
districting scheme at issue in this case deprived black voter:t
of an equal opportunity to panicipate in uhe politieal process

and to elect represencatives of their choice.*o
As an initial matter, both Nonh Carolina and the United

Sgates contend rhat the Disrict Cout't's ultirnate conclusion
thac the chailenged multimember districcs operate ro dilure

r We have no occasion in this case to decide what types of speeial circum-
stances coqld sadsfacrorily demonsrate that sr,stained success does not ac'
cr.rately rellect che minorit/s ability to elect iB prefened represenutives.



83-r968JPlNION

THORNBURG u GINGLES {5

black citizeru' votes is a mixed question of law and fact
subject lo fu nouo review on appeal. In support of their
proposed standerd of review, they rely primarily on Bose

Coryoratlon v. Cqn&tmen Udott of U. S., fac., 466 U. S.

4tl5 (1984), a case in wNch we reconflrmed that, as a ma[ter
of constitutional law, there must be independent appellate
review of evidence of "actual malice" in defarnation cases-

Appeltants and rhe United States ar5re that because a find'
ing of vote dilution under amended $ 2 requiree the applica-
6on of e rule of law to a particular sei of facts it corstitutes a
legal, rather than factual, determination. Reply Brief for
Appellants ?; Brief for United States as Amicus Curiae
18-19. Neither appellurts nor the United States cite our
several pr"ecedents in which we have treated the ultimate
ffnding of vote dilution as a question of fact subject to the
elearly-enoneous standard of Rule 62(t). See, a. 9., Rqen
v- Lod4e,458 U. S., at 62,-6tl; City of Rone v. United
Stoles, 445 U. S. 156, I8il (1980); White v. Regester, 4L2
U" S., at ?66-fl0. Cf. Andet,t,un v. Besssttler City, 170

u" s. 

-, - 
0985).

lt Reger,lrl', su'rzlo, we noted that the District Court had
bas€d its condusion that minority voterg in two multimember
distrlets in Texas h::,1 less ')pf)ofi:ltrity io participate in the

;.,.litlr:r I puo,'css th;,rl l-,;iiij,irii.y voters on the totality of the
, .:', :,ii,>t1,,,. rlt-i iU'.,1 r t;IC,l tl::it

''-,'.',.. i,!'G :rot in,'!itr,.,l (,' ov'crt';rlr thftt: firulitrgs, fgpfe'
:ctrting is il:u;' elr.r a ule::d ol' hi-stolY and an intensely
local appraisal oi the design and impact of the . . .

multirnember district in thg light of past and Presenl
reality, politicd and otherrrise." Id., at 769-770.

Quoting this passage ftom Regestr with approval, we
expressly held in Rogen v. Lodge, sttpro, thar the question
whether an at-large election system rvas maintained for dis-
criminatory purposes and subsidiary issues, which include
whether that system had the effect of diluting the minority
vote, were quescions of fact, reviewable under Rule 52(a)'s

!-



&t-1968-0PINION

46 THORNBURG u. GINGLES

clearly-eroneous standard. 458 U. S., at 6?2.-6?f,,- Simi'
larly, in City of Rone v. lJnited Stotes, we declared that the
question whetfier certain electoral structures had a "diserimi'
natory effect," in the sense of diluting the minority vote, was

a question of facr subject to clearly-erroneous review. 46
U. S., at 188.

We reaffirm our vierv lhat rhe clearly'enoneous test of
Rule 52(a) is che appropriate standard for appellate review of
a finding of vote &[urion. As both amended $ 2 and its legis-
lative history make clear, in evduating a statutory elaim of
vote dilution through distrieting, the crial court is to consider
the "totality of the circumstances" and to determine, based

"upon a searching practicd evaluation of the 'past and
prcsent r€elity,"' s. Rep. 30 (footnote omicted), whether the
political pnoc€s is equally open to minority votetl. "'This
determination is peculiarly dependent upon the facts of each

case,l" Rogr"t,, ntyru, at 621, quoting Nevetl v. Sides, 571 F'.

2d 209, U4 (CAS l9?8), and require3 "an intensely local ap
praisd of the design and impact" of the contested electoral
mechanisms. 458 U. S., at 622. The fact that amended $2.

and its legislative history provide legal standards which a
eourt must apply to the facts in orrler to Cetennir,e whcther'
:iZ l:ur L'qstt iic,liiteJ d.,ss nut aitcr'the:i.r:,'-lar'd ';[ rcvietv.
As we explained in Bose, Rule 52(a) "does not inhibif an ap-
pellate court's power to correct erron of law, including those
that may infect a so-called mixed finding of law and fact, or a
furdingof fact that is predieated on a misunderstanding of the
governing nrle of law." 466 U. S., at 501, citing Pulhnon'
Standard v. Surint,456 U. S. 273, 287 (1982): Inwood, Lab-
oratories, Inc. v. Iaes Labotzlories, |nc.,456 U. S. 844, 855,
n. l5 (1982). Thus, the application of the clearly-erroneous
standard co ultimate tindings of vote dilution preseryes the
benefit of che trial court's particular familiarity with the
indigenous political reality without endangering the nrle of
law.



83-r968-0PINION

THORNBURG U GINGLES

B

The District Court in this case carefully considered the

totality of the circumstances and found that in each district
racially polarized voting; the legacy of official diserimination
in voting matten, education, housing, employment, and

health ser.rices; and the persistence of campaign appeals to

racial prejudice acted in concert with the multimember dis-

tricting scheme !o impair the ability of geographically insular
and politically cohesive groups of black voters to participate
equally in ihe political process and to elect candidates of their
choice. It found that the success a few black candidates
have enjoyed in these districts is loo receni, too limited' and,

wit} regard to the 1982 elections, perhaps too aberrational,
to disprove its conclrsion. Excepting House District 23,

with iespect to which the District Court'committed legal
error, see szpro, 3[ 

-, 
we affirnr the District Court's judg-

ment. We cannot say that the District Court, composed of
local judges who are well-acquainted with the politicd reali'
cies of the State, clearly erred in concluding that use of a

muitimember electoral structure has caused black voters in
the districts other lhan House District ?"i to have less oppor'
tunity than white voters to eleet r€presentatives of their
choice.

Ttre judgmenc of the District Court is

Alfirmed in port, rwersed in Port.



{t

8i}-I96&-APPENDIX

THORNBUBG U GINGLES

APPENDIX A

41 &r
z3 78
32 83

2L ?6
31 8r
39 82

Senate District 22

' Primwa Gmsrol
White Block White Block

Percentag* of Voies Cast by Black and White Voters for
Black Curdidates in the Five Contested Districts

1fl18 (Alexander)
1980 (Alexander)
1982 (Polk)

lYlE (Blue)
1980 (Blue)
,rtr,tto"] 

-

1978 Senate
Barns (Repub.)

1978 Hw,se
Clement
Spaulding
198O House

$paulding
1982 House
Clement
Spaulding

41 *t
nlz nla.
38 94

Housc District 21

Primory Gensra,l

White Block Vlhite Blo*
nh nla.
4d90
45 91

1'

Hau,se District 23

Primory Generol

White Black Vlhite 8lo*h

rtla nla.

89
92

nla

10

r6-

nla,

rrlt nla
37 89

nla nla
lil 89

26 32

3? 90

L1

9049



1980 (Maxwell)
1982 (Beny)
1982 (Riehardson)

tg-I968-APPENDTX

THORNBURG U GINGLES

House District 36

Prhnory
Wlaiic Bluh
2, 7l
50 ?9
39 7L

Hottso Db/;rict 39

Primanl
Wbite Bbck

{9

G'enqrol
White Bbck
?892
42 gz

?s 88

Gqnqol
Whita Bluk

19?E House
Kennedy, II.
Normen
Ross
Sumter (Repub)

1980 Housc
Kennedy, A

i Norman
1980 Sawb
Small
1982 Howe
Hauser' 
Kennedy, A.

rtla,

42
46

40 86
18 36

L2 61

?s 80
36 g7

a, 93
nb nlt
nh rrla,
&! ?5,

?a 76
8n
L7 53
nla, nl."

rua

gl
94

38 96
nla, nla.

e90 F. Supp., at 369-3?1.



4..

60

t3-I96E-APPENDIX

THORNBURG U GINGLES

APPENDIX B

Bleck Cendidates Elected From ? Qriginally Contested
Distticts

hior to
tg72 lylu 1yI4 1yI6 lvlS 1980 1982

0000000
0000011
0111111
0000001
0011002
0Q:00000
0011100

See Brief forAppellees, table printed between pages 8 and 9;

App. 98-9a.

District
(No.Seats)

Ilouse 8 (4)

House 2f (6)

House 23 (3)

Ilouse 36 (8)

Ilorrse 39 (5)

Senete Ze)
Sensts 2,6)



SI,JPRE}TE COURT OF TIIE I]NITED STAT1OS

No" 83-1968

tACY H. THORNBURG, Ef AL, APPELLANTS U

BAI.PH GINGI,ES E:r AL

oNAPPEALFRo}rfirEUNITEDsIATEsDISIBICTcoUEf,l.oR
TIIE E^STERN DI TBIqT OF NORTII CAAOLINA

[Junc fl), 19861

Ju.sfl cg WttttE, concurting.
I join Parts I, tI, III-A, III-8, IV-A and V of the Court's

opinion urd egree with JusmcE BRENNrxls opinion-as to
p"an tV-S. i aisagree with Part III-C of-lIusrfIcE''BREN- ''r-

NA!{'s opinion.
Jusn'ca Bnexxex states in Part III-C that the cnrcial

factor in identifying polarized voting is the race of the voter
and that the rzce ol the candidate is irrelevant. Under this
test, there is polarized voting iJ the majority of white voters
vote for different candidates than the majority of the blacks,

regardless of the race of the candidates. I do not agree.

Suppose an &member multimember district that is 607o

wtriie and 10?o black, the blacks being geograp6cally located

so that 2 safe black single.member disuicts could be drawn.
Suppose fr.uther that there are 6 white and 2 black Demo-

crati nrnning againsc 6 white and 2 black Repubticans.

Under Justtcs BnexNex's test, there would be polarieed
voting and a tikely ! 2 violation if all the Republicans, includ-
ing thi 2 blacks, are elected, and 807o of the blacks in the pre-

dominandy black areas vote Democratic. I tal1g it that there
would also be a violacion in a single-member district that is
607o black, but enough of the blacks vote with the wNtes to
etect a black candidate who is not the choice of the majority of
black voters. This is interest-group politics rather than a

nrle hedging against racial discrimination. I doubt that this



A-ICCtqCONCUR

g tBORNBUIGT 0INGLES

b rbrt ConSHr hrd ir mind ia utcndtnS ! ! u-1.dd, rnd it
rrrmr ouiti d oddt vith tbo dltculrion b Whitaon$ u
Clouit,'{8 U.S Ul4, t49-l0 (1971). Furtlpranolt, on

th. dtr of thit crts, thur b no trd to dnw thr
votrdondldrte dbtincdoo" Ilra DlrUict Coun did not rnd
rorched the corect rcrult orc'cPt, in rry vhr, with nrpcct to
Dimict E.



ST'PREME COURT OF TIIE T]NIIED STAIES

No. E3.,196t

LACY H. THORNBURG, ET AL,,APPELLANTS U.

BALPH GINGLES EX AL

ON AIPE^L FROU fIIE I.'NITED S,IATES DIS,TSICT COURT FOB

lIIE EASirEBN DI TRICT OT'NORfII CAAOLINA

13o6i 30. t9t6l

Ju$nce O'Coruon, with whom THs CgmrJusncs, Jus-
TtcE PowEtr, and Jusnce Rgxxqunf join, concuring in
the judgment-

In this case, tfle are called upon to constnre $2 of the Vot' ' : '

ing Rights Act of 1966, as amendedJture 29, 1982.' Amended' ""1:
gf is-intended to cod$ the *results" legt employed ih

Whitctmb v. Cltovis, 403 U. S. 12{ (IyIl), and lVhite v'

Regesta,4f2 U. S. ?55 (197:l), and to reject the tntent" lest
proponnded in the plurality opinion in Mobile v. Bolden, 4/i6

U. 3. ;e (1980). S. Rep. No. fi-al?,9P. n-8 (1982) (here-

inafter s. Rep.). whereas Bolden required members of a
racial minoriiy who alleged impairment of their voting
strengh to prove thac the challenged electoral system was

creatJd or maintained with a discriminatory pgrpose and led

to discriminatotT results, under the results Lest, "plainri'ffs
may choose io establish discriminatory results without prov'
ing any kind of discriminatory purpose." S. Rep. 28. At
the same tirne, however, 12 unequivocally disclaims the

creation of a right to proportiond representation. ltris
disclairner was essential to lhe compromise that resulted in
passage of the arnendment. See id.,.at 193-19{ (Additiond
Views of Sen. Dole).

ln constnring this compromise legislation, we must make

every effort to be faichful to the bdance Congress stnrck.
This is not iul easy task. We know that Congress intended



t3-196S{0NcuR

2 ' THORNBURGu GINGLES

to allow vote dilution clairns to be brought under $ 2, but we

also know that Congress did not intend io create a right to

fioportional represintation for minority vote6. Ttrere is an

iotri".nt tension between what Congress wished to do and

what it wished to avoid because ury theory of vote dilution

must necessarily rety to some extent on a mealiure of rninor'

ity voting strength tirac makes some reference to the propor-

tion Uetd.en thi minority grouP urd the electorate at large.

In addition, severd important aspects of the 'tesults" test

had received little atteniion in this court's cases or in the de'

.iSo* of the Corl:ts of -{ppeals employing that test on which

Co"gt".. also relied. Sie ia-, at 32. 9p.o49]t, the legal

,""iing to be given to the concepts of 'tzcial bloc voting"

and "trinority ioting strength" had been left largely un-

addressed by the courts when $2 was amended'
Ttre couri attempts to resolve all these difficulties today.

FiEt, the Court suppties deffnitions of racial bloc voting urd

minority voting saingth that will apparently be applicalle in

all casel urd that wili dictate the stnrcture of vote dilution

litigation. Second, the Court adopts a test, based on rhe

levil of minority electoral success, for determining when an

electoral scheme has sufficiently diminished minority voting

strength to constitute vote dilution. Ttlird, although the

Corrrt-does not acknowledge it expressly, the combination of

the Court's defuiition of minority voting strength and its test

for vote dilution results in the ereation of a right to a form of
propoftional repfesenration in favor of all geo.graphicaily and

lotitlcatty coheiive minority groups uhat are large enough to

constitute majorities if concentrated within one or more sin'
gle-member districts. In so doing, the Court disre'
g"a"a the balance stntck by Congress in amending S 2 and

[as failed to apply the results r,est as described by ttus Cor.ut

rn Whitcomb and White.
I

In order to explain my disagreement w'ith the Court's in'
terpretation of 0 2, it is useful to illustrate the impact that al-

-.r. 'i- I . I



rts-I96E--CONCUR

THOBNBURG U GINGLES 3

tarnative districting plans or t1ryes of districts tlpicdly have

on rhe likelihood thai a minority grouP will be able to elect

candidates it prefen, urd then to set out the critical elements

of a vote diluiion ctaim as they emerge in the Court's opinion.

coruider a town of 1,000 votetl that is governed by a cout-
qil of four representatlv$, in which 30% of the voters are

black, and in which the black voters are concentratd in one

section of the city urd tend to vote as a bloc. [t would be

po.riUt. to drraw iour single-member districts, in one of which

Lf""f,r would constituti an overr,rrhelming majority. The

black vojgn] in this district would be assured of electing a

represeotative of their choice, while any remaining black vot'
.i in tbc ot1rer dis6icts would be submerged in largp white
majoritice. This option would give the minority group

roughly prcportiond representation.
e]t"iniUiely, it would ,sually be possible to draw four

single-member districts in tuo of wilch black voters qon-

stitirtea much nerrower majorities of about 6Mo. fire black

voters in rhese districts would often be able to elect ihe
repnesentative of their choice in each of these two districts,
Uui if even ZWo of the black voterg supported the candidate

frvored by the white minority in those diitricts 'tbe ctndi.'
dates preien ed by the majority of black voters might lose.

Ttris option would, depending on the circumstances of a Par'
ticular election, sometimes give the minority group more

than proportional representation, but would increase the risk
thar the grouP would not acNeve even roughly proportional

representation.
It would also usually be possible to draw four single-mem'

ber districrs in each of rvhich black voters constitured a mi-

nority. [n rhe e.rtreme case, black voters would conscitute

30?o of rhe vocers in each district. Unless approximately
307o of the white votem in this extreme case backed the mi'
nority candidare, black Yoters in such a district would be

unable ro elect the candidate of their choice in an election

between only two candidates even if they unanimously sup



---;:1'-'.'.1-

a-Ie68-cONCUR

,t THORNBUBG u GINGLES

ported him. This option would make it dif6cult for black
voters to elect candidetes of their choice even with significant
white support, and dl but impossible without such support-

Fina[r, it would be possible to elect all four rtpres€nt'
atives in a singte at.large election in which eech voter eould

vote for four candidates. Under this scheme, white votent

could elect all the representatives even if black votet: turned
out in large numbers and voted for one urd only one candi-
date. To illrrstrate, if only four white candidates ran, and

each received approximately equal suppon ftom white vot'
ers, each would receive about ?00 votes, whercas black voc'
ers could cast no mone than 300 votes for any one candidate.
U, on the other hand, eight white candidates rzn, and white
votes were distributed less evenly, so tfia! tfie five least fa-
vorcd white candidates received fewer than 300 votes while
three others received 400 or more, it would be feasible for
blacks to elect one rePresentative with 300 votes even with-
out substantid white supPorG. If even %?o of the white vot-
ers backed a particular minority candidate, and black votetl'
voted only for that candidate, the candidate would receive a
total of 4?5 votes, which would ensure victorT unless white
voters. also concentrzted their votes on forrr of the eight .' --

rcmsining candidates, so that each received'the $pPort of'--. j.l :r'.:.r

almost 70% of white voters. As these variations show, the
at-large or multimernber district has ur inherent tendency to
submerge lhe votes of the minority. Ttre minority group's
prospects for electoral success under such a district heavily
depend on a variety of factors such as voter turnout, horv

many candidates run, how evenly rvhite support is spread,
how much white suppoft is given to a candidate or candidates
preferred by the minority grouP, and the e.\rent ro whieh mi-
nority voten engage in "bullec voting" (which occuls when
yoters refrain from casting all their vo(es lo avoid the risk
thac by voting for their lower-ranked choices they may give
those candidates enough votes to defeat their higher'ranked
choices, see ante, at 

-, 
n. 5).



t,-.\

* 
-1. --

a-1968{oNcuR

THORNBUBGuGINGLES '0

Therc is no difierensB in principle between the verying

efiecB of the elteraatives outlind rbove urd the varying

efccts of alternative singledistrict plens end multimembor

districts. The ryac of districting selccted and tho wey in
shich disEict linei are-drawn cur have a powerlltl cfrect on

the likelihood that members of a geographically utd politi.

cally cohesive minority group wiu be able to elect candidates

of their choice.
Although 92 doel not speak in terms of \ote dilution," I

agrte with the Court that proof of vote dilution can estsblish

e-violation of !2 as amended" fire phrzse (vote dilution," in

the legal seilie, simply refers to the impermissible discrimi'
nrtory efisct that a multimember or other districting plan

has when it operates *to cancel out or minimize the voting

strength of raciat groups." Whitc,4fz U. S-, at ?65" See

abo,iorrson v. Dorsctl, ylg U. S. 4.frt, 4il9 (1960. Ttrie defi'

nition, however, conceals some very formidable diffculties.
Is the \oting strength" of a racid grcup to be ass€3sed solely

with reference to iB prospects for electoral success' or should

courts look at other avenues of political influence open to tlre.'

racial group? Insofar as minority voting streogth it,'15r,::: .,'

sessed with reference to electoral success, how should undi-

luted minority voting strenglh be measured? How much of
ur impairmenc of minority voting strength is necessarT co

prove a violation of I2? W}at constitutes racial blOc voting

and how is it proved? What weight is to be given to evi'
dence of actual electoral success by minority candidates in

the face of evidence of racial bloc voting?

ltre Coun resolves the first quesdon summarily: minoricy
vocing strength is to be assessed solely in terms of the minor-

ity group's ability to elect candidaces it prefers. Anle, at

lution claim is that the State has created single-member or

multimember districts that unacceptably impair the minority
group's ability to elect rhe candidates its members prefer.



t

a-1968{0NcuR

6 . THOBNBURGU GTNGLES

In order to evaluate a claim that a particular multimember

district or singte-member district has tliluted the minority
gtpup's Yoting-strength to a degree ihat violates 12, how'
ir"r, it is aG necessary to co*truct a measure of 'rurdi-
luted. minority voting strength. Ttlhe p;rase [vote dilu-

tionl itself sugg.rts a n6rm with respect to which the fact of
dilution may iiascettained." Musrssipl Rcpublicon Eru*
uthte Committce v. Brooks, 469 U. S. 1002, 1012 (1984)

(Rexxqurcr, J., dissenting ftom summar? affrmance)' hlt
iirply,-in order to decide whether an electoral system has

r.d" it harder for minority votet€ to elect the candidates

they prefer, a court must have an idea in mind of how hard it
"sh;uld" be for minority voter: to elect their preferred candi-

detes under an accePtable sYstem.

Several possible measures of trndiluted" minority voting
strength suggest Lhemselves. First, a court could simply
,rs" pilportionatity as its guide: if the minority grouP consti'

. hrted IMo of the voters in a given area, the court would re-
gard rhe minority group as having the potentid to elect 307o

6f tl" representatives in lhat area- Second, a coufi could

posit some alternative districting plan as a 'norztal" or'feir"
electorat scheme utd attempt to ealculate how roariy cirndi': '.; l.

detes prefened by the minority group wodld Probsbty be' ' '!'
elected ruder that scheme. There are, as we have geen, a

variety of ways in which even single-member dis6icts could

be drawn, and each will present the minority group with its
own iuray of electoral risks and benefits; the court. might,

therefore, consider a range of acceptable plans in attempting
to estimate '\rndiluted" minority voting strength by this

method. Third, the court could attempt to arrive at a plan

that would ma-ximize feasible minority electoral Success, and

use this degree of predicted success as its measure of "undi-
luted" minority voting strenglh. If a court were to employ

this third alternative, it would often face hard choices about

what would hrly "maximize" minority electoral success. An

example is the scenario described above, in which a minority



'r

t8-196t-coNcuR

THORNBURGU GINGLES 1

group could be concent6ted in one cornpletely.safe district or

O"iah .mong two districts in each of which its members

would constitute a somewhat precarious majority
The Court today has adopied e variant of the third ap

prcach, to wit, undiluted minority voting strcnqh meam the

maximum feasible min6riry voting strenglh. In explaining
the elements of a vote dilution claim, the Court first states

thet'the minority gtlup mrrst be able to demonstrate that it
is sufrciently large-and geographically cornpect to constitute
a mejority in a single-mimber district." Antc, at 

-' 
If

not, ipparently the minority group has no cognizable clam
ttrai its ability to elect the representatives of its choice has

b..!r impair€4.' Second, "the minority group must be able

to show thet it is politieally cohesivc, that is, thac a signif,'
cant proponion of the minority group sgPports the same can'

didai.es.; Anto, at 

-. 
Third, the Court requires the mi.

11"s-

I

'I rxprcu no virw ar to whcthcr the ability of e minority ltlup to cor
rtiSut i mejority ia a dngle.membrr dirtrict should conrtirutc e thrcshold

rrquirrncnt for e ctcim rhet rtrc usc of multimernber districrs imPslrs th.
ebility of arinority vot ns to pirticiprta in th. Politicd Pry91t end o
clect rrpmrcntraives of rheir choicr. Bcceura the pleintifi! in thi car
would ro6t thet rcquircrncnt. if indced it aritts, I nerd nor decide whcthlr .'
i! is impos€d by t 2. I nota. howevcr, thc rrtiicidity of thc courr's dis"

finctioo bctwecn clairns thl e minoriry grouP'S "ebiliry to Glecl the repn'
rntraives of [i(sl choice- has bcen imprired and cleirac thas 'its ability to
htftlrlrr rhctionr'her been inpir€d. Ant.,.L 

-. 
n- 12. [r is truc

thes e minority grtup th$ could coostitucc r majority in e single'member

discrict ordinerily has the potential ability to elecc represencatives withouc

white suppon. end thar r minority thes could not consritute such e majority
ordinarili does nou But the Coun recognizes that when the candidates

prcfered by r minority group are elected in r multimembcr district' the

minoricy group hes elcctcd those eandideter, even if white supPon was in.

dispenseble to thesc victories. 0n the sane reasoning. rf a rnlr,ority grouP

tha! is noC lerge enough to constitule a voting majority rn a smgle.member

disrrict can sho* thrt whitt supPort would probably be forthcoming in

some such district to ln e.\(en! that would enable the elecrion of the czndi'

detes its member: prefer. that rnioority group worrld lPpea, ro have dem'

onsuared that. et leest under this measurc of itS votrng strength. it would

be eble to elect some candidates of its choice.



t.

F':...trr'"

a-ls6rcoNcuR

E THORNBURG B GINGLES

nority group bo "demonstrate that the white majority votes

sulffcieitly as I bloc to enable it-in the absence of special

circumstances . . . -rrsudly to defeat the minorit/s pre'

ferred candidate." IW. If these three requirements ere

!net, 
,.tJle minority group demonstrates that submergence in

a *hit. multimembir diltrict impedes its ability to elect its

chosen representatives." Ibid. That is to say, the minority
group has proved vote dilution in violation of ! 2'' th. cou:rt,s definition of the elements of a vote dilution
claim is simple and invariabler a coult should calculate minor'
ity voting sirengtJr by assuming that the minority group is

concentrited in e singl*member district in which it consti'
tut€ a voting majority. Where the minority group is not

large enough, geograpirically concentl?ted enough, or politi'
callv cohesive inough for this to be possible, the minority
group's clairn fails. 

-Where 
the minority grouP meets.these

r.qui"erents, the representatives that it could elect in the

hyiothetical disuict or disEicts in which it constitutes a

majority will serve as the measure of its undiluted voting

strlngh. Whatever plan the Slate actudly adopts must be

assesJed in terms of t}e efrect it has on this rrldiluted voting

str€ngth. Lf this is indeed the single, universal standard for
evaluating undiluted minority voting strength for vote dilu-

tion purposes, the standard is applicable whether what is
challenged is a multimember district or a pardcular single;

member districting scheme.

The Court,s Statement of the elements of a vote dilution

clnim also supplies an answer to anocher question posed

above: how nruch of an impairment of undilured minority vot-

ing strength is necessary to prove voce dilucion. '[he Coult
requires the minority group that satisfies the rhreshold re-

quirements of size and cohesiveness to prove that it will
y,a.r,lly be unable to elect as many rePresentatives of its
choice under the challenged districting scheme as its un-

diluted voting strength would permit. This requirement,
then, constitutes the true test of vote dilution. Again, no



+i.
f-:_"
I

:
a

t3-1968--CONCUR

THORNBUBG U GINGLES 9

fieson apPesn why tNs test would not b applicable -to r
vote dilution clrim challenging single-member as well as

raultimember districts.
This measure of vote ditution, taken in conjunetion with

the Court,s standerd fo5 measuring undiluted minority voting
strength, creeles whaiamounts to a right to ttanl, rw4hly
proportional repr$entation on the part of sizeeble, eompact,

cohirive minoiity grouPs. If, urder a particular multi'
member or single-member district plan, qualified minority
groups rrsually cannot elect the rreprelentatives they would

be liicely to elect under the most favorable single-member

districting phn, then E2 is violated Unless minority
suosott uidar the challenged electoral system regularly ap'
pruximates this rough version of proportiond representation,
ih"t .yrt", dilutes minority voting strenglh and violates $ 2.

To ippreeiate the implications of this apProach, it is trseful

to return to the illustration of a town with four council repre'
sentatives given above. Under the Court's approach, if the

black votert who comprise 307o of the town's voting popula'

tion do not gsually succeed in eleeting one representative of
tbeir ehoice, thcn regardless of rhether the to\m crhployr a3-

large elections or is divided into four singlembm-ber districts,
itsilectoral system violates ! 2- Moreover, if the town haC a

black voting population of 409o, on the Coutt'S reasoning lhe

black minority, so long as it was geogrzphicdly and Potiti'
cally cohesive, would be entitled usually to elect two of the

four representatives, Since it would normally be possible lo
cneate lwo districts in which black voters constituted safe

majorities of approximatelY 80?c.

To be sure, the Court also requires that plaintiffs Prove
that racial bloc voting by the white majority interacts with
the challenged districting plan so as usually to defeat the mi-

norit/s preferred candidate. In fact, however, this require'
ment adds little that is not already containd in the Court's
requirements that the minority grouP be politically cohesive

and that its preferred candidaces usually lose. As the Court



l'

i

?

83-196&-40NCUB

lo THORNBURG u GINGLES

acknowledges, rrnder its approach, "in general, a white bloc

vote tbat normally will defeat the combined'strengtn oI mr-

oo..ity irpport pl'i. white ,crossover,votes rises to the level

;ii;g"ut .lgnificant white bloc voting." Ante, at-" But

thitt to alnn legally significant bloc voting by !he. racid

majority in terms df tt e eitent of the racial minorit/s elec-

torat success. If the minority can Provo that it could consti-

tute a majority in a single-member district, that it supported

..rt"in..naidat.. and lhac those candidates have not usually

be"n ele.ted, tJren a ffnding that there is "legally significant
white bloc voting- will necessarily follow. otherwise; by

deflnition, thoselandidates would tuudly heve won rather

than tost.
E sfrapea by the Court today, then, tlre basic coatours of a

vote diluiion ciaim require no ieference to most of the "Zim'
mer factors,, that were developed by the Fifth circuit to
i.pf"r.nt lrhitds results test urd which were highlighted

in the Senate Repon. S. Rep. 8-29; see Zimmer v'

iffiau*u 485 f'. za 129? (Ig?3), tfr'd ntb tom' Eost

CoioU Porish Sclrool Bootd' v- Marslwll, 424 U' S' 636

oglol(ptcrcuriorn).UaminorityEPupispoliticallyand
geographically cohesive urd large enoirgh to gorutitute a vot'
irgir+rity in one or more single-member districts, then un-

less white voters usually suPPort the minority's prefemed

candidates in suiflcient nurnbers to enable the minority group

to elect as many of those candidates as it could elect in such

hypothetical districts, it will mutinely follow lhat a vote dilu-

tion claim can be made out, and che multimember district will

be invalidated. there is simply no need for plaintiffs [o es-

tablish 'the history of voting-related discrimination in rhe

State or political subdivision," anle, at 

-, 
or "the e'xtent' lo

which the Stare or political subdivision has used voting prac'

tices or procedures thar rend to erirance the opportunity tor

discriminadon against the minority group," ibid', or "the ex'

cftxion of members of the minority grouP from candidate slat'

ing processes," ibid., or "the e.\tent to which minority grouP



I

13-I96FCONCUR

THORNBUBG u GINGLES ll

memb€nr bear the effects of past discrimination in areas such

rc education, employment, and health," ibid', or.'th9- l:" of
overt or subtle niiat appeals in political carnpaigni,";Did', or

that.elected ofrcials .re *tesponsive to the paticularized

needs of the members of the minority grouP.' Ante, $-'
Of cour:e, these otherfacton may be supportive.of such a

claim, because they may strengthen a court's eonfidence thag

minority voreF wiit Ue unable io overrcome the relative disad'

,.rrag. at which they are placed by a partiorlar districting
plan, ir suggest a mone geniral lack of opportuniJy to partici-
patain ttre-fotiticat p"ociss. But the fact remairu that elec'
'Uo..l ru...rs trs now emerBed, rurder the Court's standard,

as the linchpin of vote dilution claims, and that the elements

of a votc dilution claim create an entitlement to roughly pro'
portional representation within the frzmework of single-

member districts.
I1

In my view, the Court's test for measuring minority voting

st .ngtt urd its test for vote dilution, operating in tandem'

core-.lorer to an absolute requirernent of pro-portioSd repne-

sentation than Congress intended'when it codiffed the results

test iD 0 2. 'lt is not necessary or appropriate' to,decide io

this case whether $2 requires a uliform measure of undiluted
minority voting strengh in every Glse, nor have appellants

challenied the-standard employed by the Distriet Court for
rssessing undiluted minority voting strength-

In thiJcase, the District Court seems to have taken an aP'

prnoach quite similar to the Court's in making its prelirninary

assessmlnc of undiluted minority voting strength:

'At the time of the creation of these multi'member dis'
tricrs, rhere were concentrations of black citizens within
the boundaries of each that were sufficient in numbers

and conriguity to constitu(e effective voting majorities in

srngle-member districrs lying wholly within the bound-

ariis of the multi-member districts, which single-mem'
ber districts would satisfy dl constitutional require-



tg-1968--C0NCUR

L2 THOBNBURG u GINGLES

ments of population and geographic-al- co-nfguration.''

OWtu v.'Edm*ttn, 590 F. Srpp' 345, 358-359 (ED

N. C. 1984).

The Coqrt goes well beyond simply sustaining the District
Corgt's deeiiion to employ this measure of undiluted minority
voting strength .s a i.alonable one that is consistent with

E 2. in ,y iie'r, we should refrain from deciding in this case

whether ecourt must invariably posit as its measure of "un'
diluted" minority voting strength singl+member districts in

which minority grout members constitute L majority'
There is substantial aouUt that Congress intended "undiluted
minority voting strength" lo mean'tna-ximum feasible minor'
ity ,otiig streigth." Even if that is the appropriate defini-

tion in sime cir.umstances, there is no indication thai Con-

gress intended to mandate a single, ruriversdly applicable

iandard for measuring undiluted minority voting strength,

regardless of loczl conditions and regardless of the e.xtent of
past discrimination against minority votetB in a particular

SUt..or politieal subdivision. Since appellants have noc

raised the issue, I would assiume that what the District Courr

did here' was permissible under 92, and'leave open the

broader question whether $2 requites this approach'-

what appellanu do conrest is the propriety'of the Districu

court,s starraara for vote dilution. Appellants claim that the

District Court held that "[a]lthough blacks had achieved con'

siderable success in winning state legislative seats in the

challenged districts, their failure to consistenlly attain the

numbei of seats lhat numbcrs alone wutld presumptiuely

giue them (i. e., in proportion to their presence in the popula-

tion)," standing alone, constituted a violation of S 2' Briei
for Appeltants 20 (emphasis in orignai). This holding, ap-

pellants tr8lte, clearly r'ontravenes S 2's proviso that "nothing

in this section estabiishes a right to have members of a pro'

tected class elected in numbers equal to their proportion in

the populalion." 42 U. S. C. I l9?3.



ag;r#coNcuR

TITORNBURG u GINGLES l3

I believe appeltantd characterizatioo of the District Court's
holding is incorrect. In my view, the Dbtrict Court con'

cluded thet there walt a severe diminution in the prosp€cts

for black electoral success in each of the chdlenged districts,
as compared to single-member districts in which blscks could

constitute a majority, and thai this severe diminution was in
large part attributable to the interaction of the multimember
form of the disuict with persistent racial bloc voting on the
part of the white majoritier in those districts. See 590 F.
Sopp., at fi2-t The District Court attached great weight to
this cireumstance as one part of its ultirnate fuiding that 'the
creation of each of the multi'member districts clrdlenged in
this rction rusultr in tbe black registered voters of that dis'
trict being submerged as a voting minority in the district and

thereby having less opportunity than do other members of
the electorate to participate in the political Prccesll and to
elect representativeg of their choice." Id., at, {14- But the

District Coun's exteruive opinion clearly relies rs well on a
variety of the other Zimmq factorg, as the Coutl's thortugh
sumnarT of the District Coun's frndings indicates. See

uttc, lt "t ::
If the District Court had held that the chdlenged multi''

member districts violated 5 2 solely because blacks had not
consistently attained seats in proportion to their presence in
the poptrletion, its holding would clearly have been inconsisc'
ent with $ 2's disclaimer of a righc to proportiond representa'
tion. Surely Congress did not intend to say, on lhe one

hand, that membert of a prccectd class have no right to pro'
portiond representation, and on the other, that uty consist'
ent failure to achieve proPonional representation, without

rAt tirnas. the District Coun seems to have looked to sirnple ProPortton'
rlity nrher than co hypothetical singt+rnember districts in which black
voser: would constitute a malority. See. c. 9., 590 F. Supp'. aG 367. No'
where in irs opinion. however, did thc District Coun state thac $ 2 requires
thac minority 8loupr consistently ertain thc levcl of electorzl success lhat
would conespond with their proportion of thc tolal or voting populatron.



r3-is6S{ONCUR

l. THORNBUBG u GINGLES

more, violates $2. A requirement that minority rePresenta'
tion rraually be proportional to the minority group's ProPor'
tion in the bopulition is not quite the same as aright to strict
proportionit r"p.e""r,tation, but it clmes so close to such e

hgit as to be inconsistent with 9?s disclaimer and with the

riott . test that is codified in $ 2. In the words of Senator

Dole; the architect of the compromis€ that resulted in Pas-

sage of the amendments to $ 2:

{'he language of the subsection explicitly rejects, as did

Vthitc ana irc progeny, the notion that members of a pro-

tected elass hivel right to be elected in numbers equd
to their proportion of the populadon- The extenc to
which members of a protected class have been elected

under the challenged practice or structure is jrrst one fac.

tor, atrrong the totality of circumstanca to be consid'
ered, and ls not dispositive-" S- Rep. 194 (Additional

Views of Sen. Dole).

0n the same reasoning, I would reject the Court's test for
vote dilution. Ttre Court measures undiluted minority vot'
ing strength by reference to the possibility of creating single- '

mimber aist"icrs in which the rainciiity group ufould consti-
tute a majority, rather than by looking to raw Proportionality
alone. Ttre Court's srandard for vote dilution, when com-

bined with its test for undiluted minority voting strength,
makes actionable every deviation from usual, rcugh propor'
tionality in representacion for any cohesive minority group zui

to which this degree of proportionality is feasible within the

framework of single-member disricts. Requiring that
every minority group that could possibly constitute a major'
ity in a single-member distrig be assigned to such a district
would approach a requirement of proportional representation
as nearly as is possible within the framework of single-mem'
ber districts. Since the Court's analysis entitles every such

minority group usually to elect as many representatives
rurder a multimember district as it could elect under the most

favorable single-member discrict scheme, it follows that the



\d

63-196E;-coNcuR

THORNBURG U GINGLES 15

Court is requiring a. form of proportional representation.

ttir .ppr*,til is i;consisteni with the results test urd with

I Zi airit"irer of a right to proportional representation.- 
fn .o""ting !Z; Coigress-codified the *results" test this

Court had eripioyed, d an interpretation of the Fourteenth

G.nar.nt, in Wttfe'and Whiicomb. The factors devel'

;ild by ttre irifttr Circuit and relied on by the Senate l.pot
ifinpfy'nff in the contouB of the 'tesults" test as described in

thoie-decisions, and do not purporl to redefine or alter the

ottir"t. showing of discriminarorT efreet required--ly .Whit'
comb and w[ite. In my view, therefore, it is to whitcmrb
znd Vlhite that we shouid look in the first instance in deter'

nining how great, an irnpairment of minority voting_strength

is req;ir.d t-o establish vote dilution in violation of $ 2'

Tlri "results, test as reflected n Y{hitcornb and Whil* r*
quires ur inquiry into the e-rtent of the minority group's

opponunities to 
-participate 

in the political pnocesses" See

Wiilr, $.?ro, at ?66. 
'While 

electoral succesE is a eentral

part of the vote dilutlon inqutry, W.hite held that to prove

iote dilurion, "it is not enough that the racial s.ouP allegedly

discriminated against has not had legislative sests in p-ropor'

tion to its votlng potential'" 412 U. S., at ?65-766, and

Whitcwnb flatly iejected the proposition that "uty Rroup
with distinctive intirests must be represented in legislative

halls if it is numerous enough to command at least one Seat,

and represents a minority living in an area sufficiently com-

pact to constitute a single member district"' {03 U' S" at

iSO. To lhe contrary, the results test as described in White

requires plaintiffs to establish "that the political processes

leahing to nomination and election were nor equally oPen to

participation by the group in question-that its members had

i"r. opportunity than did other residents in the district to

participate in rhe political Processes and to elect legislators ol'

ih.ir .hoi..." 4I2 LI. S., ac ?66. By showing both "a his'

tory of disproportionate results" and "strong indicia of lack of
potiticat pb'ri" and the denial of fair representation," the



a-196&-CONCUR

16 THORNBURG u GINGLES

plaintiffs in tt[hite met uhis standard, which, as emphasized
just ttris Term, requires "a substantidly greater shotring of
adverse efrects than a mere lack of proportional representa'
tion to support a flnding of uneonstitutiond vote dilution""
Dons v. Eandemn, 7 U. S. 

-r -, - 
(1986) (plu.

rdity opinion).
When Congress amended $ 2 it intended to adopt this- "re'

sults" test, while abandoning the additiond showing of dis'
criminatory inteni required by Bold,en the vote dilution
analysis adopted by the Cotrrt today clearly bears little
resemblence 1o the "results" test that emerged in ltlhitcarnb
and White. The Court's test for vote dilution, combined

with its standerd for evaluating \oting potential," White,
su'W, at ?66, means that any racid minority with distinctive
interests must uE?rolly "be represented in legislative hdls if
it is numerous enough to command at,least one seat and rep
resents a minority living in an area suffciently compact to
constitute" a voting majority in "a single member district-"
Wltitcomb, d03 U. S., at 156. Nothing inVlhitcomb,White,
or the language urd legislative history of $ 2 suppons the

Court's creation of tNs right to usud, roughly proponiond.'
representation on the part of every geographicdly compact,
potiticatty cohesive minority grouP that is large enough to

foim a majority in one or more single-member districts.
I would adhere to the approach outlind in Whitcomb and

White and followed, with some elabotzlion, n Zimrner and

other cases in the Courts of Appeals prior to Boldau Under
thar approach, a court should consider dl relevant factors

bearing on whether lhe minority group has "less opportunity
than ocher members of the electorate to participate in the po-

[tical process and lo eleet representatives of their choice."
42 lJ. S. C. ! 19?3 (emphasis added). The cour:t should not

focus solely on the minority group's ability to elect represent-
atives of irs choice. Whatever measure of undiluted minor'
ity voting strength the court employs in connection with eval'
uating the presence or absence of minority electoral success,



I

t3-le6t{oNcuR

THOBNBUBG u GTNGLES U

it should rlgo b€8r in mind that "the power to influence the
potiticat prccess is not limit€d to winning electiong" .Davis
i. Aorrd;rrrsr, W, xl 

-. 
0f course, the rclative lack of

minority electoral success urder a chdleng{ ql"n,. when

compared with lhe sucress that would bc predicted under the

,..r,r"" of rurdiluted fninority voting suength the court ie

employing, can constitute powerfirl evidence of vote dilution.

Uoreovei, the rninority group rnay in fact lgck access to or

influence upon nepresantatives it did oot suPPofi as candi'

a"tat. Ct. Owis'v. Baadan'cr, uuqrz,, at 

- 
(Poweu', J",

conouring in pert and dissenting in p-*tl- Nonetheless, a

rcviewinicourt should be required to flnd mote then simply

tbrt ths irinority group does not rrsually attain ur undiluted

measlue of clectoral success. The court must find that even

*U.Ur,ti"f minority success will b€ highly infrequent under

the challenged plan before it may conelude, on this basis

done, that the plan operates *to cancel out or minimize the

voting strength of lthel rzcial grodp]." White, {12 U' S.,

st 765.
rq

Only a pluzlity of the Court joins Part III-C of Jusmcs .

Bns$tAlfs opiniLn, which addresses the validity of the 1ta-
tistical evidence on which the District Court relied in finding
rzcially polarized voting in each of the challenged districts.
Insofa; as stetistical evidence of divergent racial vodng pat-

terns is admitted solely to establish that the minority group

is politicauy cohesive gnd to ass€ss its prospects for electoral

success, I agree with the pluralitlr that defendants cannot re-

but this showing by offering evidence that the divergent ra-

cial voting patterns may be explained in part by causes other

than race, such as an underlying divergence in the interests
of minority and white vo(eni. I do not agree, however, that
such evidence can never affect the overall vote dilution in'
quiry. Evidence that a candidate prefered by the minority

iroup in a particular election was rejected by white vo[ers

ior re.sons other than those which made that candidate the



8-1968-{0NCUB

tE THORNBURd u GINGLES

prefe'Td choice of rhe minority group would.s€em clearly

relevant in answering the question whether bloc voting by

white voters will coisistenily defeat minority candidates.

SuO evidence woutd sugg$t ihat rnother candidate, equally
preferred by the minoiity groupl mieht be able to attract
greeter white suPport in future elections-

I believe congrlss also intended that e.rplanations of the

reasorur why while votert rejected minority candidates would

be probativi of the likelihood that candidates elected without

dec'rsive minority suppoft would be willing to take theminor'
it/s interests inio acctunt. In a community that is-polarized

aling rzcial lines, racial hostility may bar these and other in-

air.ot ayenues of politicd influence to a much greater extent

tbar in a eommunity where racial animosity is_ absent al'
though t}e interests of racial rouPs diverge.. Indeed, the

Senaie Report clearly stated that one factor that could have

p.U"tlr" ,"lue in $i cases was \hether there is a signifi-

Lrrt t".t of responsiveness on the part of elected officials to

the particularijea needs of the members of the minority
group:" S. Rep. 29. Ttre overall vote dilution inquiry nei-

il.r'r"qoites no" permits ur arbitnry rule against consider-

ation of all evidence concerning voting preferences other than

statistical.evidence of racial voting patterns. such a ntle
would give no effect whatever to the Senate Report's' rc-

peated-emphasis on "intensive racial politics," on .'lzcial
political considerations,'r and on whether'tzcid politics . . .

bominate [he electoral process" asi one aspect of the "racial

bloc voting" that Congress deemed relevant to showing a $ 2

violation. S. Rep. 33-34. Similarly, I agree with Justtce
Wttttg that the plurality's conclusion that the race of the can-

didate is always irrelevant in identifying racially polarized

voting conflicts with ErlitcomD and is not necessary to the

dispoiition of rhis case. .{,te, at 

- 
(WUtte, J.. concur-

ring in part and in the judgment and dissenting in pan)'
ln this case, as rhe Coufi gndgingly acknowledges, the

District Corrrt clearly erred in oggregating data from all of



.,

a-1968{ON9UR

THORNBUBG l GINGLES 19

the challenged districts, and then relying gn th9 fact that on

average, gi.l* of white voters did not Yole fof :ny black

candidl-ate h the primary elections selected for study. Ante,
rt 

-, 
n- 8. Although Senate District 22 encompasses

Iloqse Districr 36, with that exception the districts at issue in
this case are distributed throughout the State of North Caro-

lh& Whib calls for "an intensely local appraisal of the de'
sign and impact of the . . . multimember district," 4U U' S',
at ZSg-fO, and rzcial voting statistics &om one district are

ordinarily irrelevant in assessing the totality of the circum'

stances in another district. In view of the speciffc evidence

from each disUiet that the District Coqrt also considered,

however, I cannot say that its conclusion thet there was se-

verc racial bloc voting was clearly erroneous with regard to

any of the chellenged districts. Except in llouse District 8,
*liere racial bloc voting did not prevent sustained and virtu-
ally proportional minoiity electoral success, I would accord-

initi teive undistgrbed the District Court's decision to give

goat weight to racial bloc voting in each of the challenged

districts. ..".
ry

- Having made usual, roughly proportional ruccess the sole

focus of its vote dilurion analysis, the Court goelr on to hold

that prmf that an occasional minority candidate has_ been

electCd does not foreclose a $ 2 claim. But Jusrtca Bnex'
xex, joined by Justtcs WHlte, concludes that "persistent
proportional representation" wiU foreclose a $ 2 claim unless

the plaintiffs prove that this "sustained success does noc ac'

curately reflect rhe minority group's ability to elect its pre-

fened representatives." Anle, at 

-. 
I agree with Jus-

rcE BRENNT,x that consistent and sustained success bl'
candidates preferred by minority vocen is presumptively in'
consistent with the e.ristence of a $ 2 violation- Moreover, I

agree that this case presents no occasion for determining
what would constitute proof that such success did not accu-



$

-83-196E-40NcuB

N 
. 

THORNBUBG&GINGLES

retelyrtflecttheminoritygroup'sactualvotingstrengthina
challenged district or districts"-- 

r" ,i "iew, 
the District co.rt ened in assessing t!e- e.r-

tent ofiUck ilectoral success in House District 39 and Sen'

ate Districta, ts well as in House District 8, where the

coort acknowledges eror. As the evidence summarized by

tt. Co,rtt in tabl;form shows, onte, at 

-, 
ApP' I' the de-

gr-"-oiUf".k electoral success differed widely in_the s€ven

iriginalty conrestJ districts. In House District 8 and Sen-

ate'Distiict 2, neither of which is contested in this Court' no

Uf".i candidaie had ever been elected to the offices in ques-

d; il i;use District 2l and House District 36, rhe only

i*t r..a of black electoral success eame in the two most re'
cent electiorur, one of which took plece drrring th-e pendency of

;hi" fii*m By coatrast, in .{oqse 
District 39 urd Senate

Oiitri"n Z, blaci successes, although intermittent,. dated

U."f, to l9?i, and a black candidate hid been elected in each

oi it.r" disuicts in three of the last 6ve elections. Findly,
in tto*. District I a black candidate had been elected in

each of tbe last six elections. --r " -: : ' :":i 
:'

-t" 
District court, drawing no distinctions'rm0hg thesE

districts for purposes of its findinF, concluded that "ttlhe
*.off i...tts achievea to date at, all levels of elective offlce.

are minimal in relation ro the percentage of blacks in the_ totd
poput"tion." 59O F. SuPp., at 36?' The District Court

.t."rty erred to the extenf that it considered electoral Success

in rhe aggregare, rather than in each of the challenged dis'

tricts, tilr.., .s the Court staLes, "ttlhe inquiry into the exist-

ence of vote dilution is distriet'specific"' Ante' at 
-'n. ?3. The coun asserts rhal the District corut was free to

regard Lhe results of the 1982 eleetions with suspicion and to

aecide "on the basis of all the relevant circumstances to ac'

cord greater weight to blacks' relative lack of success over

the cJune of seviral recent elections," onle, al 

-, 
but the

court does not e.rplain how rhis technique would apply in

Senate District 22, where a black candidate was elected in



I
I

a-1968--CONCUB

TITORNBURG u GTNGLES 2l

three eons€cutiye electioru fbom 1914 to 1fi8, but no black

candidate was elected in 1982, or in House District 39, where.

black candidates were elected in lyl4 and 1fi6 rs well as in

1982. ContrarT to what the DisEict Court thought, see 590

F. Supp., at 36?, these pre-1982 successes' which werc Prc'
portional or nearly prtportiond to black population in these

itre. multimembir aisiricts, certainly lend smrs suPport for
r finding thst black voters in these districts enjoy an equal

opportfiity to partieipate in the political proce$t and to elect

rcpr$entstives of their choice.
bespite this enor, I agree with the Court's conclusion

that, ixcept in House District tt, minority elec-toral succe$t

was not s'uficiently frequent to compel a fuiding of 
^equal

oppornrnity to panicipate and elect. The District court
fdrha &at "in eich of the chdlenged districts racial polariza-

tion in voting presently exists to a substantial or severe de'
gree. ard . . .-in esch disEict it presently opentes to-rnini'
iliz"-tte voting strength of black votet!.' Id-, tt t7?- I
cannot say thai this finding was clearly erroneous *i{t *
cpect to Fiogse District 39 or Senate District 22,_particularly
when tahen together with the Dis*ict Court's findings con'
cerning the other Zimmcr factors, and hence that court's'ul-
dmatJconclusion of vote dilution in these. districts is ade-

quately supported. '''-".'
This flnding. however, is clearly eroneous with respect to

flouse District 23. Blacks comprise 36.37o of the population

in that district, and constitute 28.67o of the registered voters.
In each of the six elections since 1970 one of rhe three repre-
sentatives frorn this district has been a black. There is no

finding, or iuy reason even to suspeet, that the successful

black candidates in District 23 did not in fact represent the

interests of black votelt, and rhe District Court did not frnd

that black success in previous elections was aberrant.
Zimmds caveCt against necessaily foreclosing a vote di-

lution ctaim on the basis of isolated black successes, '185

F. 2d, at 13ffI; see S. Rep. 29, n. lI5, cannot be pressed this



a
aa

a-196E-coNcuR

2 THORNBUBG u GINGLES

far. Indeed, the 23 Court of Appeals decisions on which the

Itn"t. n.poh re6ea, urd whicli are the best evidence of the

][p. of tni. caveat, contain no e.rample of minority electoral

eucce$ tha3 even remotely approximites the consistent, dec'

ade-long pattern in Dislriii A' See, c' g't Turnct v'

UiXirtri. 490 F. Zd.t91 (CAo l9?3) (no black can_didates

.t".i.al; Vlolloce v- House,5l! F' 
-2d 

619 (CA6 19?5)' va'

cated on other grounds, 4?5u. s. 94? (19?6) (one black candi'

date elected).
IdonotProposethatconsistentandvirtuallyproportional

rin*it.t".tiot success should always, &t a matter of law.

barffndingag2violation.But,asageneralntle'suchsuc'
..r. i" eniitl.d to gr..t weight in evaluating whether a chal'

ffi;.i..to".f ri.h-ir* has, on the totdity of the circum-

;;;: opet?td to deny black Yoten an equal oPPortuity

io p"tti.id"te in the polili."l Proce$i and to elect rePrcsent'

;tfi of ttreir choice. With respect to House District 23, the'

bisuict Courds failure to accord black electoral success such

;;fii "* ctearty erroneous, and the Disrricr cor,t idenri-

Aea-no reasion for not giving this degree of suecess preclusive

effect. Accordingly,i agiee with JustlcE BRENNAN that

"pp"U."r 
f.if.a t"-."LUti.t, a violation of $ 2 in District 23.

.v
when mernbers of a racial minority chdlenge a multi-

member district on [he grounds that it dilutes theii voting

strength, I agree witl de Court that they must show that

;ht ;"4;.ss iuch strengh and rhac the multimember disrriec

impairs it. a court niusr therefore appraise the minority

g-up', undiluted voting strength in order to &ssess the

Iff..ir of rhe multimember distriet. I would reserue the

questionofthepropermethodormethodsformakingthisas.
,"ar*.n,.' Bui once such an assessment is made, in my view

the evaluarion of an alleged impairment of voting strenSh

requires consideration oithe minority grouP': access to the

potiticat processes generally, not solely consideration of the



't)

t
t

, t!

a-1968--coNcuR

THORNBURG u GTNGLES A

chancca thet its preferrd candidates will actudly- be elected.

*ooe that whid yo6', withhold their support &om Imnor'

ity"prefer:red candidat$ to an extent thgt consistently en'

ild. their defest is entitled to significant weight in plaintifrs'

favor. However, if plaintifrs d-irect their prtof solely to'
*"ra" the minority group's pr95ryec6 for electoral success'

tt.i r*t show t-ha-t sutstsntiat minority success wiU be

*i[fy infrequent under the challenge.d nlan in order.toestab-
ti3i-- t[.t the plan operates to "cancel out or minirnize" their
voting strength. Wlvitc,4f2 U. S., 

-at 
?65.

Coirp.nuie is essential to much if not most major f.{.*l
legislarion, urd conffdence that the federal cour6 will enforce

.,ih .orp.mises is indispensable to their creation I be'

licve that tbe Court todai strikes e different balance than

Ongr... intended to whin it codiffed the results test and

Ar.f,ir"a ury right to proportional representation under $2.

For that reason, I joiir tle Court's judgment but not its
opinion"



-t

,

. l ..t,

SI'PREME COTTf,T OF fiIE I.]NITED STATIES

No. 83-1968

LACY H. THORNBURG, ET AL., APPELLANTS t,.

RALPH GINGLES ET AL.

ON APPEAL FROM THE UNITED SIATES DISTRI T COURT FOR

THE EASTERN DI TRICT OF NORTH CAROLTNA

lJune 30, 19861

Justrcr SrnvExs, with whom Justtcn MeRsHer.l and

Justlcp Buecxuutl join, concuning in part and dissenting in
part.

In my opinion, the findings of the District Court, which the
Court fairly sumrnarizes, onte, at 4-8; 19-20 and n;:?Jl;26-n
and nn. 28 and 29, adequately support the District:Court's
judgment concerning House District 23 as w3ll'gs the balance
of that judgment. '':" r ,: '

I, of course, agree that the election of one black candidate
in each election since 19?2 provides significant support, for
the State's position. The notion that this evidence creates
some sort of a conclusive, legal presumption, onte, at 43-44,
is not, however, supported by the language of the statute or
by its legislative history.' I therefore cannot agree with the

Court's view that the District Court committed error by fail'
ing to apply a ntle of law that emerges today without statu'

rsee ozle, at 42 ("Section 2 provides that '[t]he extent to which mem-

bens of a protecled class have been elected to office . . . is one circumsLance

which may be considered .' 42 U. S. C. t l9?3(b). . - . However, the Sen'

ele Report expressly states that 'the election of a few minority candidatts
does not 'necessarity foreclose the possibility ofdilution of the black vote,"
noting that if it did, 'the possibility exists that the majority citizens might
evade [$ 2] by manipulating the election of a "safe" minority candi'

date.' . . . The Senate Committee decided, instead, to 'require an inde'
pendent consideration of the record"') (internal citations omitted)'

I



('. t

&I-I96HONCUR/DISSENT

2 THORNBURG u. GINGLES

tory support. The evidence of candidate success in District
23 is merely one part of an extremely large recotd which the
District Court carefully considered before making its ulti-
mate findings of fact, all of which should be upheld under a

normal application of the "clearly etroneous" standard that
the Court traditionally applies.t

The Court identifies the reason why the success of one
black candidate in the efections in 19?8, 1980, and 1982 is not
inconsistent with the District Court's ultimate finding con-
cerning House District 23.' The fact that one black candi-
date was also elected in the 1972, 1y74, and 19?6 elections,
onte, App. B, is not sufficient, in my opinion, to overcome the
additional findings that apply to House District 23, as well as

to other districts in the State for each of those years. The
Court accurately summarizes those ffndings:

"The District Court in this case carefully considered the
totality of the circumstances and found that in each dis-
trict racially polarized voting; the legacy of official dis-
crimination in voting mattem, education, housing, em-
ployment, and health services; and the persistence of
campaign appeals to racial prejudice acted in concert
with the multimember districting scheme to impair the
ability of geographically insular and politically'cohebive
groups of black voters to participate equally.in t}re politi. '

cal process and to elect candidates of their choice. It
found that the success a few black candidates have en-
joyed in these districts is too recent, too limited, and,
with regard to the 1982 elections, perhaps too aberrz-
tional, to disprove its conclusion." Antn, at 46-17.

To parzphrase the Court's conclusion about the other dis-
tricts, ibkl.,l cannot say that the District Court, composed of

I See onle, at 46 ("[T]he application of the clearly{troneous standard to
ultimate findings of vote dilution preser-ves the benefit of the cial coutt's
particular familiarity with the indigenous political reality without endan-
gering the rule of law").

rSee oale, at 19-20 and n. 23; tl, n. t9;42-43,



t

t a,

83-IB-CONCUR/DISSENT

THORNBURG u. GINGLES
local judges who ar. u,all-^^ar.^..-r , 

--.-.- 3

ties;i;fr;"sffi:,ii,ff,1,.:ff ];,?j.[#;I;ff ff 1l,i1;r".ffl,j$[f,fii.:"""r .i*.tr1."i"." caused black vorers intr.r..trlp".r.;"1?,::ui',r.j,||nf:nitv.tr,*iiit"'",=o,.r,

n:*',t 
".:;H: ffi i,{l'*i}IiiTii+;:t }::t**,,

-___.-

roii#lm,;:gmiC:l:,'u*riffi il:ffi [*
;ST1it"*:ln $e_coltorrrs "r,r,"ir,"ii'ond' 

the co.rt does no, .,"n
decide what r)?es o1rll?,:,^'.u' '' E,.fr*' and why it was not satis'

H'r..H*:ffi:.Tr'ffi ;Ttrtri,,;r{l{*i{Ti}H,rf,"ffiii

ffi +Tti,Hjr:ffiii.'rffi H,l,*t*Irr;;il,TJbliil1,:i["ti['l;:i' is due, *,i.,,Iiri
conrend;,c";;.'*":H;fjffi;j#l;3"1##"':'i.;il;;*