11th Circuit, No. 88-8085 + 89-8085 - Attorney's Working Files - Rehearing en Banc

    UNTTED STATES
EASTERN DISTRICT

RALEIGH

DTSTRICT COURT
OF NORTTI CAROLINA
DIVISION

FIUED
'ji'i'l 2 ? linzt

J. RI.3H LEOi'IARD, CLERK
U. S. DISTRICT COURT

L DIST..NO. CAR.

RALPH GINGLES, et aI.

Plaintiffs,
vs.

RUFUS L. EDMISTEN, €t aI.

No.81-803-CIv-5

MEMORANDUM OPINION

Defendants. )

__ .__ )

Before PHILLIPS, Circuit Judge,
DUPREE, Senior District Judge.

BRITT, Chief District Judge, and

PHILLIPS, Circuit Judge:

rn this action Rarph Gingres and others, individuarly and

as representatives of a class composed of all the black citizens
of North carorina who are registered to vote, challenge on

L/constitutional and statutory grounds the redistricting- pran

enacted in final form in L982 by the General Assembly of North

Carolina for the election of'members of the Senate and House of
Representatives of that state's bicamerar legisrature.

1- For consiStency and convenience we use the termnredistricting" throughout as a-more technicarly, as werr as
descriptively, accurate one than the terms',apportionment,, or
"reapportionment" sometimes used by the parties herein to referto the specific legislative action under chalrenge here. see
Carstens v. Lamm, 543 F. Supp. 68,72 n.3 (D. CoI. 1992).



Jurisdiction of this three-judge district court is based on 28

U.S.C. SS I33I, I343, and 2284 (tirree judge court) and on 42

U.S.C. S 1973c.

The gravamen .of plaintiffs' claim is that the plan makes

use of multi-member districts with substantial white voting

majorities in some areas of the state'in which there are

sufficient, concentrations of black voters to form majority black

single-member districts, and that in another area of the staLe-

the plan fractures inEo separate voting minorities a comparable

concentration of black voters, a1I in a manner that violates

rights of the plaintiffs sbcured by section 2 of the voting

Rights Act of 1965, amended June 29, 1982, 42 U.S.C. S 1973

(Section 2, or Section 2 of the Voting Rights Act), 42 U.S.C. SS

1981 and 1983, anci the thirteenth, fourteenth and fifteenth

amendments to the United States Constitution.?/ In particular,

the claim is that the General Assembly's'plan impermissibly

dilutes the voting strength of the state rs registered black

voters by submerging black voting minorities in multi-member

House District No. 36 (8 members Mecklenburg County), multi-

2 th" original complaint also included challenges to
population deviations in the redistricting plan allegedIy
violative of one-person-one-vote principlesr .and tq
congressional redistricting plans being contemporaneously
enacted by the s€ate's General Assernbly. Both of these
challenges were dropped by amended or supplemental pleadings
responsive to the evolving course of legislative action, leaving
only the state legislature "voEe dilution" claims for
resolut ion .

2-



member liouse District No.39 (5 members - part cf Forsyt,h

County), multi-member House District No. 23 (3 members - Durham

County), multi-menber House District No. 2L (6 members - Wake

County), multi-member House District No. I (4 members - WiIscn,

Edgecombe and Nash Counties), and multi-member Senate District

No. 22 14 members Mecklenburg and Cabarrus Counties), and by

fracturing between more than one senate distr ict in the

northeastern section of the state a concentration of blaqk

voterS sufficlent in numbers and conEiguity to constitute a

voting majority in at least one single-member district, with the

consequence, aS intended, that in none of the senate districts

into which the concentration is fractured (most noLabIy, Senate

District 2 with the largest mass of the concentration) is there

an effective voting majority of black citizens.

We conclude on the basi's of our factual f indings that the

redistricting plan violates Section 2 of the Voting RighEs Act

in aI1 the respects challenged, and that plaintiffs are

therefore entitleo to apPropriate relief, including an order

enjoining defendants from conducting elections under the extant

plan. Because we uphold plaintiffs' claim for reliei under

Section 2 of the Voting Rights Act, we do not address their

other statutory and' constitutional claims seeking the same.

relief.

-3



I
General Background and Procedural Historv

In JuIy of I98I, responding to its legal obligation to make

any redistrictings compelled by the 1980 decenniel census, the

North carolina Generar Assembry enacted a regislative
redistricting plan for the sEate's House of Representatives and

senate. This original 1981 pran used a combination of murti-
member and single-member districts across the state, with muItL--
member districts predominating; had no district in which blacks

constituted a registered voter majority and only one with a

black population majority; and had a range of maximum population

deviations from the equar protection ideal of more than 20?.

Each of the districts was composed of one or more whore

counties, a result then mandated by state constitutional
provisions adopted in 1968 by amendments that prohibited the

division of counties in regislative districting. At the time

this originar redistricting plan was enacted (and at artr

criticar times in this litigation) forty oi North carorina,s one

hundred counties were covered by section 5 of the voting Rights

Act of 1965, 42 U.S.C. S 1973c (Section 5, or Section 5 of the

Voting R,ights Act) .

Praintiffs filed this action on september 15, r9gr,..
charlenging that origiiar redistricting pran for, inter aria,
its population deviations, its -submergence of black voter
concentrations in some of Ehe multi-member districts, and the

4-



failure of the state to obtain preclearance, PUEsuant to Section

5, of the 1964 constitutional amendments prohibiting countlz

division in legislative districting.

After this action had been filed, the state submitted the

1958 no-division-of-counties constituticnal provisions for

original Section 5 preclearance by the Attorney General of the

United States. While action on that submission was pending, the

General Assembly convened again in special session and in'

October 198I repealed the original districting plan for the

state House of Representati.ves and enacted another. This new

plan reduced the range of maximum population Oeviations to

approximately L6Z, retained a preponderance of multi-member

districts across the state, and again divided no counties. No

revision of the extant Senate districting plan was made.

In i{ovember 19E1, the ittorr,"y General interposed f ormal

objection, under Section 5, to tire no-division-of-counties

constitutional provisions so far as they affected covered

count ies. Objection was based on the Attorney General's

expressed view that the use of whole counlies in Iegislative

districting required the use of large multi-member districts and

that this "necessarily submerges cognizable minority population

concentrations into larger white electorates." Following this'

objection to the constitutional provisions, the Attorney General

further objecteC, on December 7, 1981, and January 20, L982, to

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the then extant redistricting plans for both the Senate and

House as they affected covered counties.

In February 1982, the General Assembly again convened in

extra session and on February 1I, L982, enacted for both the

Senate and House revised redistricting plans which divided some

counties both in areas ccveieC and areas not covered by Section

5. Againr oD April 19, L982, the Attorney General interposed

objections to the revised districting plans for both the Senate'

and House. The letter interposing objection acknowledged some

improvement of black votegs' situation by reason of county

division in Section 5 covered areas, but found the improvements

insufficient to permit preclearance. The General Assembly once

more reconvened in a second extra session on Aoril 26, L982, and

on April 27,1982, enacted a further revised plan which again

divided counties bor-h in u."u" covered and areas not covered by

Section 5. That plan, embodLed in chapters l and 2 of the i.Iorth

carorina session Laws of ttre second Extra session of L98z',

received Section 5 preclearance on ApriJ- 30, I982.

precleared under Section 5,- that pran constitutes the - extant

Iegislative districting law of the state, and is the 
":Oject of

plaintiffs' ultimate challenge by amended anc supplemented
1/complaint in this action

3 th" final plan's Civision'of counties in areas of the
state not covered by section 5 was challenged by vcters in one

(Continued on next page)

As

6-



During the course of the legislative proceedings above

Summarized, this actlon proceeded through its pre-tria}
!/stages. Amended and supplemental pleadings accommodating to

successive revisions of the originally challenged redistricting

plan were allowed. Extensive discovery and motion practice was

had; extensive stipulations:of fact were. made and embodied in

pretrial orders. The Presently composed three-judge court was

designateci by Chief Judge ilarrison L. Winter of the United

States Court of Appeals for the Fourth Circuit on October L6,

1981. The action was designated a plaintiff class action by

stipulation of the parties on Apr i L 2 , L982. Following

enactment and Section 5 Preclearance of the Apri:.. 27, L982,

Senate and House districting p1ans, the pleadings were closed,

(fn.3 continued)
such county on the basis that the division violated the staters
1968 constitutional prohibition. The claim was that in non-
covered counties of the state the ccnstitutional prohibition
remained in force, notwithstanding its suspension in covered
counties by virtue of the Attorney General's cbjection. In
Cavanaqh v. tsrock, I.lo. 82-545-CIV-5 (E.D.N.C. Sept. 22, L9 B3) ,
ffiwaSconSoIidatedwiththeinstantaCtion,this
court rejected that challenge, holding that as a matter of state
Iaw the Constitutional provisions were not Severable, So that
their effective partial suspension under federal law resulted in
their complete suspension throughout the state.

4 at one stage in these proceedings another act
challenging the redis'tricting plan for impermissible di.lution
the voting strengtb of black vcterS was consolidated with
instant action. In Pugh v. .ilunt, No.81-1066-CIV-5, a

decided this day, we- earlfEF- entered an order of
consolidation and permitted the black plaintiffs in that act
to intervene as individual and represelrtative plaintiffs in
instant action.

10n
of

rhe
1so
de-
ion
the

7-



with issue joined for trial on plaintiffs' challenge, by amended

and supplemented complaint, to Ehat finally adopted plan.

FoIlor*ing a final pre-trial conference on July L4, 1983,

trial to the three-judge court was held from July 25,1983,

through August 3, 1983. Extensive oral and documentary evidence

was received. Decision $ras deferred pending the submission by

both parties of proposed findings of fact and conclusions of

Iaw, briefing and oral argument. Concluding oral arguments of

counsel irrere heard by the . court on October L4, 1983 r 6od a

limited submission of supplemental documentary evidence by both

parties was permitted on December 5, 1983.

Having considered the evidencer the memoranda of law

submitted by the parties, the stipulations of fact, and the oral
arguments of counsel, the court, pursuant to Fed. R. Civ. P.

52(a) , enters Ehe following findings of fact and conclusions of

Iaw, prefaced with a discussicn of arnended Section 2 of the

Voting Rights Act and of certain special problems concerning the

proper interpretation and application of that section to the

evidJnce in this case.

II
Amended Section'2 of the Votinq Riqhts AcE

From the outset_ of this action plaintiffs have based their
claim of racial vote dilution not only on the fourteenth .and

fifteenth amendments, but on Section 2 of the Voting Rights Act.

As interpreted by bhe Supreme Court at the time this action was

8-



1/
commenced, former Section 2, secured no further voting rights

than were directly secured by those constitutional provisions.

To the extent "vote dilution" claims I3V under either of the
9/

constit,utional grovisions or Section 2, the requirements for

proving such a claim were the same: there must have been proven

both a discriminatorily nditutive" effect traceable in some

meaSure Eo a challenged electoral mechanism and, behind that

effect, a sPecific intent on the Part of resPonsible state

officials that the mechanism should have had the effect. Citv

of Mcbile v. Bolden, 446 U.S. 55 (1980).

While tnis action was pending for trial and after the

ultimately challenged redistricting p.Ian had been enacted and

5- !ormer section 2, enacted pursuant to congress t s
constitutional enforcement Polrers, provided simply

No voting qualification or prerequisite to voting, or
standard, practice, or procedure shall be imposed or
applierl by any State or political 'subdivision to deny
oi abridge the rieht of any citizen of the United
States to vote on account of race or color t oE in
contravention of Ehe guarantees set forth in SecE,ion

- _I973b ( f) (2) of this tit,le
42 V.S.C. S 1973 (1976).

5 -. -! - -- L.-! -^: LL^-- It is not now.perfectly clear but neither is it of
direct consequence here whether a -majority of the Supreme
Court considers that a racial vote dilution claim, &S well aS a
direct vote denial cIaim, Iies under Ehe fifteenth amendment
and, in ccnsequence,' lay under former Section 2. SeeGcgelx '/,Lodqe,458 U.S.613,619 nr16 (1982),. It is weII settled,
E6ffier , that such' claims lie under the f cur Eeenth amendment,
though only upon proof of intent as well as effect. See eiEv qf.
i,lobile v. Bolden, 446 U.S. 55 (f980).

9-



7/given Section 5 preclearance, Congress amended Section Z- in

drastic and, for this ritigation, criticarly important respects.

In rough summary, the amended version liberalized the statutory
vote dilution claim in two fundamental ways. It removed any

necessity that discriminatory int,ent be proven, leaving onry Ehe

necessity to show dilutive effect traceabre to a challenged

erectorar mechanism; and it made expriciE that Ehe dirutive
effecE might be found in the "totality of Ehe circumstances"

within which the challenged mechanism operated and not alone in
direct operation of the mechanism

Eollowing Section 2's amendment, plaintiffs amended their
complaint in this action to invoke. directly the much more

favorable provisions of the amended statute. A11 further
proceedings in the case have been conducted on our perception

that the vote dilution claim would succeed or fail under amended
9-/Section 2 as now the obviously most favorable basis of claim.-

7 n.n. 3LLz, amending Section 2 and extending the Voting
Rig-hts Act of f965, was passed by the i{ouse on October 15, l9BI.
On June 13, I982, the Senate ariopted a different version, S.
L992, reported out of its committee on the Judiciary. The House
unanimously adopted the Senate bilI on June-23, 1982, and iE was
signed into 1aw by the President on June 29, L982. There was no
intervening conference commit,tee action

8 Of course, Ehe direcE claims under the fourEeenth (and
Possibly the fifteent,h) amendment remain, ano could be
established under Bolden by proof of a dirutive effect
intentionally infliclE- eu-t no authoritative decision has
suggested that proof alone of an unrealized discrirninatory
intent to dirute would suffice. A dilutive effect remains an

(Continued on next page)

10



Because of the amendeC statute's profound reworking of

applicable law and because of the absence of any authoriEative
e/

Supreme Court decisions interpreting it, we preface our

findings and conclusions with a summary discu.ssion of t,he

ame'nded statute and of our understanding of its proPer

application to the evidence in Ehis case. tsecause we find it

dispositive of the vote dilution claimr w€ may properly rest

decision on the amended statute alone and thereby avoid

addressing t,he stiIl subsisting constitutional clains seeking

the same relief . See Ashwander v. Tennessee VaIIey ..:luthor i tir,

297 U.S. 288, 347 (1936) (Brandeis, J., concurring).

(fn.8 continued)
essential element of constitutitlnal as well as Section 2 claims.
See Hartman, RaciaI Vote Dilution and Separaticn of Powers.: Ar]
exploration of the Conflict Between the Jr:dicial "Intent" and
the Leqislative "ResulEs" Standards, 50 Geo. W.L. Rev. 689,
131-38 n.:ra (1982). Neither is there any suggestion that the
renedy Eor an unconstibutional intentional dilution should be
any more favorable than the remedy for a Section 2 "tesult"
violation. Whether evidence cf d iscr ininatory inLent might
nevertheless have limited relevance in establishing a Section 2

"results" claim is another matter
--o' There have, however, been a few lower federal court

decisions interpreting and applying amended Section 2 Eo staLe
and local electoral plans. A11 generally supporE Ehe
interpretation we give the statute in ensuing discussion. See
l,laior v. Treen, Civil Action No. 82-1192 Section C (8.D. La.
Sept. 23, 1983) (three-judge court); Rvbicki v. State tsoard of
Elections, No. 8I-C-6030 (N.D. Ill. Jan. 20, I9B3) (three-judge
court); Thomasville Branch of NAACP v. Thomas County, Civil
Action i,lo. 75-34-THOI4 (M.D. Ga. .Jan. 26, 1983) ; Jones v. City
of Lubbock, CiviI Action No. CA-5'76-34 (N.D. Tex-. Jan. 20,

, 544 F. Supp. LL22 (w.D. Tenn.
L9B2) (on grant of preliminary injunction).

I1



Section 2, as amended, reads as follows:
(a) No voting qualification or prerequisite to

voEing or standard, practice, or procedure shall
be imposed or applied by any State or political
suboivision in a manner which resulEs in a denial
or abridgement of the righc of any citizen of bhe
United StaEes to vote on account of race or
color, or in conEravention of the guarant,ees set
forth in Section 4(t) 12),
subsection (b).

as provided in

(b) A violation of subsection (a) is established if,
based on the totality of circumstances, it is
shown that the political processes leading to
nomination or election in the State or golitical
subdivision are noE equally open to
participation by members of a class of ciEizens
protected by subsection (a) in that its members
have less opportunity than other members of the
electorate to participate in the political
process and to elect representatives of their
choice. The extent to wnich members cf a
protected class have been elected Eo office in
the State or political subd iv is ion is one
circumstance which may be considered: Pr__cgid_eq,
That nothing in this iection establisrreffi-Et
to have members of a protected class elected in
numbers equal to their proportion in the
popu Ia t lon .

WiEhout attempting here a detailed analysis of the

legislative history leading to enactment of amended Section 2,

we .deduce from that history and from the- judicial sources upon

which Congress expressly relied in formulat,ing the statuters

text the following salient points which have guided our
.

the facts we have found.'application of the staEute to

First. The fundamental purpose of the amendment to Section

2 was to remove intent as a necbssary element of racial vote
L0/

dilution claims brought under the. statute.

10 (FootnoE.e Io on next page)

L2



This was accomplished by codifying in the arnended statute

the racial vote dilution principles aPplied by the supreme court

in its pre-tsolden decision in White v. Reqester, 4_L-2,U.S. 755
LL/

(f973). That decision, as assumed by the Congress, E€guired

no more to establish the illegality of a staters electoral

mechanism than proof that its "resultr" irrespective of intent,

when assesSed in "the totality Of CirCumStances" was "tO CanCel

out or minimize the voting strength of racial groupsr" id. at

763 in that case by submerging racial minority voter

conientrations in state multi-member legislative districts. The

White v. Resester racial vote ditution principles, aS assumeo by

10 Senator DoIe, Sponsor of the compromise Senate version
ultinaEely enacted aS Section 2, Stated that one of his "key
objectives" in offering it was to

make it unequivocally clear that plaintiffs may base a

violation oi Section 2 on a showing of discrirninatory
"results", in which case proof. of discriminatory
intent or purpose would be nei'ther required, nor
relevant. t-wal convinced of the inappropriatenesS of
an "intent standard" as the sole means of establishing
a vot.ing rights claimr EIs were the majority of my

- -colleagues on the Committee-

s. Rep. No. 4L7, 97th Cong., 2d Sess. 193 (1982) (additional
views of Sen. DoIe) (hereinafter S. Reg. No. 97-4L7).

11 Cong ress ional opponents of amejnderJ Sect ion 2 contended
in debate tfrat White v. Reqester did not actually ap-pIy . a

',results only" m properly interpreted, it
required, and by implication found, intent also.p-roven. The
rijfrt or wrong of -.ttiat debate is essentially beside the point
f oi our purposes . irle seek only Cong ress ional intent , wh ich
clearly *is to adopt a "results only" st.andard by codifying a
decision unmistakaUty assumed - whether or not erroneously : to
have embodied Ehat standard. See ilartman, RaciaI Vote DiIution,
surrra note B, at 725-26 I n.236.

I3



the Congress, $rere made explicit in new subsection (b) of

Section 2 in the Provision that such a "result, " hence a

violation of secured voting rights, could be established by

proof "based on the totality of circumstances . Ehat the

polltical processes leading to nomination or election . are

not equally open to Participation" by members of protected

minorities. Cf . id. at 766.

Second. In determining whether, "based on the totality of

CirCumStanceS," a StateIs eleCtoral meChaniSm dOeS SO "reSUIt"

in racial vote dilution, the Congress intended that courts

should look to the interaction of the challenged mechanism with

those historical, social and political factors generally

suggested as probative of dilution in ilhite v. Regester and

subsequently elaborated by the former Fifth Circuit in Zimmer v.

gcKer!hq4,485 F.2d L297 (5th Cir. L973) (en banc), aff'd on

other qrounds sub nom. East Carroll Parish School Board v.

I'larshaII , 42{ U. S. 535 (L97 6) (per cdr iam)

include, per the Senate Report accompany

version enacted as amended Section 2z

. These typically
ing the compromise

l. the extent of any history of off icial
discrimination in the sEate or political subdivision
that touched Ehe right. of the members of the minority
group to reglster, to voter' or otherwise to
participate in the democratic processi

2. the extent to which voting in t,he elections
of the state- or political subdivision is racially
polarized i

3 . the ex tent to wh ich the stat,e or pol i t ical
subd iv i s ion has used unusually Iarge elect ion

I4



distr icts, majority vote requirements, anti-single
shot provisions, or other voting practices or
procedures thaE may enhance the opportunity for
discrimination against the minority group;

4. if there is a canoidate slating process,
whether t,he members of the minority group have been
denied access to that Processi

5. the extent to which members of the minority
group in the state or political subdivision bear the
6ffects of discrimination in such areas as education,
employment and health, which hinder their ability Eo
participate effecEively in the political process;

5. whether political campaigns have been
characterized by overt or subtle racial appeals;

7. the extent to which members of the minority
grouP have been elected to public office in the
j ur isd iction.

Additional factors that
probative value as part of
establish a violation are:

whether there is
responsiveness on the
to the particularized
minority group.

in some cases have had
plaintiffs' evidence to

a significant lack of
part of elected officials

needs of the members of the

whether Ehe golicy under'Iying the sEate or
poli Eical subdivis ion's use of such voting
qualification, prerequisite to voting, or
standard, practice or proceCure is t,gnuarls.

i{hiIe these enumerated factors wiIl often be the
most relevant ones, in some cases other factors will
be indicative of t,he alleged dilution

S. Rep. No. 97-417, supra.noEe 10, at 28-29 (fooEnot,es omitted).

Third. Congress also intended Ehat amended Section 2 should

be inEerpreted and applied in conformity with Ehe

tsolden raciat vote dilution jur ispruCence

general body

Ehat appiieaof pre-

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the White v. Reoesterry
tt result. tt

test for the existence of a dilutive

Critical in that body of jurisprudence are the following

principles that we consider embodied in the statute.

The essence of racial vote dilution in the White v.

Reqester sense is this: -' that primarily because of the

interaction of substantial and persistent racial polarization in

voting patterns (racial bloc voting) with a challenged electoral

mechanism, a racial minority with distinctive group interests

that are capable of aid amelioration by government is

effectively denied the political Power to further those

interests that numbers alone would presumptively, See United

Jewish Orqanizations v. Carev, 430 U.S. L44, L66 n.24 (L977),

give it in a voting constituency not racially polarized in its

voting behavior. See Nevett'v. Sides, 57]- F.2d 209, 223 & n.15

(sth Cir. 1978). Vote diluLion in this sense can exist

notwithstanding the relative absence of structural barriers to

exercise of the electoral franchise. It can be enhanced by

other factors - cu1tural, politica'l, social, economic - in which

the racial minority is relatively disadvantaged and which

L2 See S. Rep. No. g7-4L7, supra note I0, at 32 (,,tTlh9.
Iegislative intent tisl to incorporate IWhite v. ileqester] and
extensive case law . which developed around it.")'. See also
id. at L9-23 (Bolden characterized ai "a marked departuE Erom
TEn"l prior fawr of vote diluLion as applied in White v.
Reqester, Zimmer v. McKeithen, and a number of other cited
federal decisions following White v. Reqester).

15



further operate to diminish practical political effectiveness.

Zimmer v. McKeithen, Se. But the demonstrable unwillingness

of substantial numbers of the racial majority Eo vote for any

minority race candidate or any candidate idenLified with

minority race interests is the linchpin of vote dilution by

districting. Nevett v. Sides, supra; see also Roqers v. Lodqe,

458U.S.513,623(198I)(emPhasizingcentralityofblocvoting

as evidence of purposeful discrimination) '
The mere fact that blacks constitute a voting or populaticn

minority in a multi-member district does not alone establish

tnat vote dilution has resulteC from Lhe districting plan. See

Zimmer, 485 F.2d at I304 ( "axiomatic" - that at-Iarge and multi-

member districts are not per se unconstitutional). Nor does the

facL that blacks have not been elected under a challenged

districting plan in numbers proportional to their percentagq of
L3-/

the population. Id. at 1305

On the other hand, prooe tf,u! blacks constitute a

population majority in an electoral district does not per se

establish that no vote dilution results frorn the districEing

p}an, at least where the blacks are a regist-ered voter mlnority.

Id. at 1303 . Nor does .proof that in a challenged. distr ict

blacks have recently been elected to office. Ig. at'1307.

t3
of the
sect ion
e Iec ted
42 u.S.

This we consider to be the limit of the
disclairner in amended Section 2 that
establishes a right to have members of
in numbers equal to their proportion in

c s 1973.

int,ende<l meaning
"nothing in this
a protected class
the population. "

- L7.



Vote dilution in the White v. Reqester sense may result
from the fracturing into several single-member districts as welI

as from the submergence in one multi-member district of black

voter concentrations sufficient, if not "fractured" or

"sdbmergEd," to constitute an effective single-member district
voting majority. See Nevett v. Si4ee , 57l- F.2d 209, 2L9 (5th

Cir. 1978).

. Fourth. Amended Section 2 embodies a congressional purpose

to r.emove aII vestiges of minority race vote dilution
perpetuated on or after the amendment's effective date blr state

t4/
. or local electoral mechanisms. To acconplish this, Congress

has exercised its enforcement powers. under section 5 of the
L5/

fourteenth and section 2 of the fifteenth amendments to

create a new judicial remedy by private action that is broader

in sccpe than were existing private rights of action for

L4 Both the Senate and House Committee Reports assert a
purpose to forestall further purposeful discrimination that
might evade remedy under the stringent intent-pIus-effects test
of Bolden and to eradicate existing of new mechanisms that
perpffi the effects of past discrimination. See S. Rep. 97-
4L7, supra note 10, at 40; H.R. 'Rep. No. 227,97th Cong., Ist
Sess. 3I (1981) (hereinafter H.R. Rep. No.-97-227).

We accept - and it is not challenged in this action by the
state defendants - that Congress intended the amendment to apply
to litigation pending upon its effective date. See'Major v.
Treen, supra, Jfip op. at 40-4I n.20

15 Both the senaie and House Committee Reports'express an
intention that amendeo Section 2 be regarded as remedial rather
than merely redefinitional of existing constitutional voting
rights. See S. Rep. No. 97-4L7, supra note 10, at 39-43; H.R.
Rep. No. 97-227, supra note L4, at 31.

IB



constituEional violations of minoritlt race voting rights.
Specifically, this remeCy is designed Eo provide a means for

bringing states and locaI governments into compliance with

constitutional guarantees of equal voting rights for racial

minorities without the necessity to prove an intenEional
L6/

violaEion of those rights.
Fifth. In enacting amended Section 2, Congress made a

Celiberate political judgment that

the statuEe's remedial measures to

vote dilution that might be

Iitigation; that national policy

the time had come to apply

present.conditions of racial
established in particular

respecting minority voting

rights could no longer await the securing of those rights by

normal political processes, or by voluntary action of state and

Iocal governments, or by judicial remedies limited to proof of

I5 Congressional proponents of amended Section 2 were at
pains in debate and committee reports to disclaim any intention
or power by Congress to overruld the Supreme Court's
constitutional interpretation in Bolden only that the relevant
constitutional provisions prohibited intentional racial vote
dilution, and to assert instead a power comparable to that
ex+rcised in the enactment of Section 5 of the Voting Rights Act
to provide a judicial remedy for enforcement of the statesrs
affirmative obligations to come into compliance. See, e.q., S.
Rep. 97 -4L7 , supra note 10 , at 4L ( "Cong ress cannot aI't,er the
juCicial interpreEations in Bolden [T]he proposal is a
proper statutory exercise of Congress' enforcement power.

lt\
. 1.

No challenge is made in this action to the
constitut.ionali ty o.f Section 2 as a va1-id exercise of Congress's
enforcement powers under the fourteenth (and possibly fifteenth)
amendment, and we assume constitutionality on that basis. See
i'laior v. Treen, supra, slip op. 44-6I (upholding constitution-
ality against direct attack) .

I9



intentional racial discrimination. See, e.Q., S. Rep. 97-4L7,

supra note 10, at 193 (a<iditional views of senator Dole)

(asserting purpose to eradicate "racial discrimination which

. stilI exists in the American electoral process").

In nraking that .oolitical judgment, Congress necessar iIy

took into account and rejected aS unfounded, or assumed as

outweighed, several risks to fundamental political values that

opponents of the amendment urged in comrnittee deliberaEions and

f loor debat,e. Among these hrere the r isk E,hat the judicial

remeltly might actually be at odds wi th the judgment of
L7/

significant elements in tire raeial minority; the risk that

creating "safe" black-majority single-member diStrict'S wor:Id

pergetuate racial ghettos and racial polarization in voting
LA/

behavior;- the risk thab reliance upon the judicial remedy

L7 See vctinq Riqhts Act: Hearinqs Before tire Subcomm. oE
the Constitution of the Senate Comtn. .on the Judiciarv, 97th

Senate
Hearinqs) (prepared statement of Professor McManus, pointing to
aEagreements within black community leadership over relative
v i r-tqes of locaI d istr ict ing plans ) .

18 See Subcommittee on the Constitution of the Senate
Committee on the Judiciarv, 97th Cong., 2d Sess., Voting Rights
act, neport on S. L992, 3t 42-43 (Comm. Print 1982) (hereafter
Subcommitqee_Beoorq), reprinted in S. ReP. No. 97-4L7, supra
ffi (aEEEtlng Tdetrimentar consequence -f
establishing racial.polarity in voting where none existedr oE
was merely episodic, and of establishing race as an accepted
f actor in the decision-rnaking of elected of f icials" ) ;
Subcommittee Report, Sp!g, at 45, reprinted in S. Rep. No.'97-
AI7, sugg note 10, at I50 (asserting that amended Section 2

would aggravate segregated hous ing paEterns by encourag ing
blacks to remain in safe black legislative districts).

-20



vrould supplant the normal, more healthy proceSses of acquiring

political power by registration, voting and coalition
a-/

building;- and the fundamental risk that the recognition of

"group voting rights" and the imposing of affirmative obligation

uporl government tO SeCure those rights by race-conscious

electoral mechanisms was alien to the American political
u/

tradition
For courts apptying section 2, the significance of

Congress'S general rejection or assumption of these risks aS a

matter of political judgment is that they are not among the

circumstances to be considered in determining whether a

challenged electoral mechanism presently "results" in racial

vote dilution, either as a new or perpetuated condition' If it

does, the remedy follows, aII risks to these values having been

assessed and accepted by congress. It is therefore irrelevant

for courts applying amended Section 2 to speculate or to attempt

to make findings as to whether a preseni.ly exisEing condition of

racial vote dilu.tion is like1y in due course to be removed by

normal political processes, or by affirmative acts of the

19 see subcommittee. Report, supra note rg, at 43-14,
reprinted-fr s te 10, at 149-50'

20 See Senate Ilearinqs, E-!EIB, note L7, at 1351-54 (Feb.
L2, 1982t-lp@nt of Professor Blumstein'), lq- at
SOi-fO (ian'.- 2ti', Lg82) (Prepared statement of Prof essor ErIer) ,

reor inted in S. Rep. No.- 9 i-qtl', supra note I0 , at I47; id. - at
ffi-n, 1982i (testimony of profess_or_Berns) , reprinted in
S. Rep. No. g1-4L7, supra note I0, at L47'

2L



affected government, or that some elements of the racial

minority prefer to rely uPon those Processes rather than having

the judicial remedy invoked.

III
Findinqs of Fact

A.

The Challenqed Districts
. The redistricting plans for the North Carolina Senate and

House of Representatives enacted by the General Assembly of

North Carolina in Apr i1 of 1982 included six multi-member

. districts and one single-member district that are the subjects

of the racial vote dilution challenge .in this action.

The multi-member districts, each of which continued pre-

existing districts and apportionments, are as follows, with

their compositions, their apportionments oE members and the

percentage of their total populations . and of their registered

voters t,hat are black:

-District

Senate No. 22 (l,lecklenburg
and Cabarrus Counties)
(4 members)

House No. 36 (Mecklenburg
County) (8 members)

House No. 39 (Part of For-
syth County) (5 member-s)

House No. 23 (Durham County)
(3 members)

House No. 2L (Wake CounEy)
(6 members)

House No. 8 (I^Ii Ison, Nash
and Edgecombe Counties)
(4 members)

B of Registered
t of Populaf ion Voters t,hat is Black
that is Black (as of L0/4/82)

24 .3'

26.5

. 25.L

36.3

2]--B

39 .5

zz

15 .8

18 .0

20. B

28 .6

15.r

29.5



As these districts are constituted, black citizens make up

distinct population and registered-voter minorities in each.

Of these districts, only House District No. I is in an area

of the state eovered by S 5 of the voting Rights Act'

At the time of the creation of these multi-member

districts, there were concentrations of black citizens within

the boundaries of each that were sufficient in numbers and

contiguity to constitute effective voting majorities in single-

member districts lying wholly within the boundaries of the

multi-member districts, which single-member districts would

saLisfy a1t constitutional requirements of population and

geographical ccnf iguration. For example, concentrations of

black citizens embraced within the following sin9le-member

districts, as depicted on exhibits before the court, would meet

those criEeria:

i,lult i-Member Di str ict

Senate No. 22
( {egk Ie nburg/Cabar rus
Count.ies)

House No. 35
(Mecklenburg CountY)

House No. 39
(Part of Forsyth CountY)

House No. 23
(Durham County)

House No. 2L
(Wake County)

House No. I
(Wi lson, Edgecornbe ,
Nash Counties)

SingIe-Member District :

location and racial
compos i t ion

Part of Mecklenburg
County; 70 .-0? Black

(1) Part of Mecklenburg
County; 66. IA. Black
(2) Part of Mecklenburg
County i :lL.2Z tslack

Part of Forsyth County;
70.08 B1ack

Part of Durham County;
70.9t Black

Part of Wake County i
67.0t Black

Parts of Wilson, Edgecombe
and Nash Counties;
62.7 ? BIack

Exhibit

Pl. Ex. 9

PI. Ex. 4

PI. Ex. 4

Pl. Ex. 5

Pt. Ex. 5 -
subs t i tute

Pl. Ex. 7

PI. Ex. I

23



The single-menber district is Senate District No. 2 in the

rural northeastern section of the state. It was formed by

extensive realignment of existing distri.cts to encompass an area

which formerly supplied components of two multi-member Senate

diStricts (No. I of 2 members; No. 5 of 2 members). It consists

of the whole of Northampton, Hertford, Gates, Bertie, and Chowan

Counties, and parts of Washington, Martin, Halifax and Edgecombe

Counties. Black citizens made up 55.18 of the total population

of the district, and 46.2E of the population that is registered

to Vote. This does not constitute them an effective voting
2L/

majority in this district.-
This district is in an area of ti're state covered by S 5 of

the Voting Rights Act.

2L We need not attempt at this point to define the exact
population level at which blacks would constitute an effective
(non-diluted) voting majority, either generally or in this area.
Defendantrs expert witness testified t.hat a general "rule of
thumb" for insuring an effective voting majority is 55?. This
is the percentage used as a "benchtnark " by the Just ice
Department in administer ing S 5. Plairltiffs' expert witness
opi.ne-d that a 608 pooulaCion ma jor i ty in the aiea of thi s
district courd onry be considered a "competitive" one rather
than a "safe" one

On the uncontradicted evidence adrluced we find and need
onry find for present purposes that the extant 55.rt brackpopulation majority does not constitute an effective voting
majoriEy, i.e., does not establish per se the absence df racial
vote dilution, in this district. see Kirksev v. Board ofSupervisors, 554 F.2d - 139, 150 (5th G.
cohesive black voting strength is fragmented among'districts,
not only does not necessarily preclude dififffi butT . may
actually enhance the possibility of continued minoriEy political
impotence. " ) .

24



At the time of creation of this single-member district,

there waS a concentration of black citizens within the

boundar ies of this district and those of adjoining Senate

District No.5 that was sufficient in numbers and in contiguity

t,o.ionstitute an effective voting majority in a single-member

district, which single-member district $rould satisfy all

constitutional requirements of population and geographical

configuration. Eor exarnple, a concentration of black voterS

embraced within a district depicted on Plaintiff's Exhibit 10(a)

could minimally meet these criteria, though a stiIl Iarger

concent,ration might prove neceSsary to make the majority a truly

effective one, depending upcn exPerience in the new district

alignments. In such a district, black citizens would constitute

50.7* of the total population and 51.02? of the registered

voters (as contrasted with percentages of 55.18 and 46.22,

respectively, in challenged Senate District 2).

B

Circumstances Relevant to the Claim of
Racial Vote Dilution: the "Zimmer Factors"

At the time the challenged districting plan was enacted in

Lg82, the following circumstances affected the plan's effect

upon the voting strenqth of black voters of the state (the

plaintiff class) , .-and particularly those in the areas of the

challenged distr icts. -

25



A History of Official Discrimination
Aqainst tsIack Citizens in Votinq Matters

Forlowing the emancipation of bracks from sravery and the

period of post-war Reconstruction, the State of North Carolina
had'officially and effectively discriminated against brack

citizens in matters touching their exercise of the voting
franchise for a period of around seventy years, roughly two

generations, from ca. 1900 to ca. 1970. The history of brack

citizensr attempts since the Reconstruction era to participate
effectivery in the political process and the white majority's
resistance to those efforts is a bitter one, fraught with racial
animosities that linger in diminished .but still evident form to
the present and that remain centered upon the voting strength of
black citizens as an identified group.

From 1868 to 1875, black citizens, newly emancipateC anC

given the legar right to vote, €ffectivery exercised the

franchise, in coalition with white aepi:uricans, to control the

state leg islature. In 1875, the Democratic party,

overwhelmingly white in composition, regained control of state
government and began deliberate efforts to reduce participation
by black ciEizens in the goritical processes. These efforts
$rere not immediately and whorly successfur and brack mare

citizens continued to vote and to hold elective office for the

remainder of the nineteenth century.

This continued participation by black mares in the
political process was furthered by the Fusionists' (populisE and

26



Republican coalition) assumption of control of the state

legislature in 1894. For a brief season, this resulted in

Iegislation favorable to black citizens' political

participation as weIl as their economic advancement.

The Fusionists' legislative Program favorable to blacks

impelled the white-dominated Democratic Party to undertake an

overt white supremacy PoIitical camgaign to destroy the

Pusionist coalition by arousing white fears of Negro ru1e. This

campaign, characterized by blatant racist appeals by pamphlet

and'cartoon, aided by actS of outright intimidation, succeeded

in restoring the Democratic Party Lo control of the legislature

in IB9g. The 1898 legislature then adopted constitutional

amendments specifically designed to disenfranchise black voters

by imposing a poII tax and a literacy test for voting with a

grandfather clause for the literacy test whose effect was'to

Iimit. the disenfranchising effect Eo .blacks. The amendments

were adopted by the voters of the State, following a compa,:able

white supremacy campaign, in I900. The 1900 official Iiteracy

test continued to be freely applied for 60 years in a variety of

forms that effectively disenfranchised most blacks. In 1961,

the North Carolina Supreme Court decldred unconstitutional the

practice of requiring a registrant to write the North Carolina

Constitution from- dictation, but upheld the practice. of

requir ing a registrant "of uncert,ain dbility" to read and copy

in writing the state Constitution. Bazqmore v. Bertie Countl'

-27



Board of Elections, 254 N.C. 398 (1961). At least until around

1970, the practice of requiring black citizens to read and writ,e

the Constitution in order Eo vote !,ras continued in some areas of

the state. Not until around 1970 did the State Board of

Eleitions officially direct cessation of the administration of

any form of liEeracy test.

Other official voting mechanisms. designed to minimize or

cancel the potential voEing strength of black citizens $rere also

employed by the state Curing this period. fn 1955r dn anti-

single shot voting law applicable to specified municipalities

and counties was enacted. It was enforced, with tire intended

effect of fragmenting a black minority.'s total vote between two

or more candidates in a multi-seat election and preventing its
concentration on one candidate, until declared unconstitutional

in L972 in Dunston v. Scott, 336 F. Supp. 206 (E.D.N.C. L972).

In L967, a numbered-seat plan fcr e.Iection in multi-member

Iegislative districts was enacted. Its effect was, as intended,

to prevent single-shoE voting in mul:ti-member legislative

distficts. It was applied until declared unconst.itutional in

the Dunston case, g!pg, in L972

In direct consequence of the po11 tax and the. IiEeracy

test, black citizens in much larger percentages of their total
numbers than the comparable percentages of white ci_tizens were

either directly denied registration or chilled from making the

attempt from the time of imposition of these devices until t.heir

28



removal. After their removal as direct barrlers to

registration, their chilling effect on two or more generations

of black citizens has persisted to the present as at least one

cause of continued relatively depressed leveIs of black voter

registration. Between 1930 and 1948 the percentage of black

citizens who successfully sought to register under the poII tax

and literacy tests increased from ze_ro to 15t. During this
eighteen-year period that only ended after WorId War II, no

black vras elected to public office in the state. In 1950,

twelve years later, after the Supreme Court decision in Brown v.

Board of Education, 347 U.S. 483 (1954), only 39.I8 of the black

voting age population was registered tg vote, compared to 92.L2

of age-qualified whites. By 197I, following the civil rights
movement, 44.48 of age-qualified blacks were registered compared

to 50.5t of whites. This general range of statewide disparity

continued into 1980, when 5I.3? of a.ge-qualified blacks and

70.1t of whites were registered, and into Lg82 when 52.'t t of
u/

age-qualif ied blacks and 66.7 t of whites \dere registered.

22 rh. recent history of
statewide and in the areas of
on the following chart,.

white and black voter regis-tration
the challenged districts is shown

.

(Continued on nexE gage)

29



Under the present Governor's administration an intelligent

and determined effort is being made by the State Boarrl of

Elections to increase the Percentages of both white and black

voter registrations, with special emphasis being placed upon

incieasing the leve1s of registration in grouPs, including

blacks, in whlch those Ievels have traditionally been depressed

relative to the total voting age population. This good faith

effort by t,he currently resPonsible state agency, directly

reversing official state policies which persisted for more than

seventy years into this century, is demonstrably now producing

some of its intended results. If continued on a sustained basis

over a sufficient period, the effort might succeed in removing

(fn. 22 continued)
Percent of Voting Age

Pooulation Reqistered to Vote

L0 /78
White Black

.10,/80
White Black

Lo /s2
rdh i te Black

Whole State
Meck Ienburg
Forsyth
ourhim
Wake
Wi lson
Edgecombe
Nash
Ber t ie
Chowan
Gates
HaI i fax
Hertford
Martin
Nor thampton
Wash ing ton

70.1
73.8
76.3
70.7
76.0
66.9
58.2
72.0
77 .0
77.4
83.9
72.0' 8r.8
7 6.9

. 77.0
82.2

30

6L.7
7L.3
6s.8
53.0
6L.2
50.9
53.8
61.2
75.6
7 L.3
80.9
55 -8
75.6
69.3
72.4
7 4.3

43.7
40.8
58.7
39.4
37 .5
36.3
37 .9
39.0
46.0
44.3
73.5
40.9
55.5
49 .7
58. s
62.8

5r.3
48 .4
67 .7
45.8
48.9
40.9
50.4
4L.2
54. t
53.9
77.8
50.4
62.5
55.3
63.9
66.0

66.7
73.0
69 .4
56.0
72.2
64.2
52.7
54.2
7 4.6
7 4-.L
83.5
67 .3

.58.7
7 L.2
82.1
75.6

52.7
50.8
64.1
52.9
49 .7
48.0
53.1
43.0
60.0
54.0
82.3
55.3
58.3
53.3
73.9
67 .4



the disparity in registration which survives as a legacy of the

long period of direct denial and chilling by the state of

registration by black citizens. But at the present time the gap

has not been closed, and there is of course no guarantee that

the effort will be continued past the end of the present state

admini strat ion.

The present condition which we assess is thatr oo a

statewide basis, black voter registration remains depressed

relative to that of the rvhite majority, in part at least because

of the long per iod of of f ic iaI stat,e denial and chilling of

black citizens' registration efforts. This statervide depression

of black voter registration levels is generally replicated in

the areas of the challenged districts, and in each is traceable

in part at least to the historical statewiCe pattern of official

discrimination here found to have existed

Ef f eets of Racial Discr irriination in
Facilities, Education, Emolovment,' Housing and HeaIth

In consequence of a long history, only recently alleviated

to-some degree, of racial discrimination in public and private

facility uses, education, employment, housing and health care,

black registered voters af the state remain hindered, relative
to the white majority, in their ability Eo participate

effectively in the political proces.s

At the st,art of this century, de- 'iure segregat,ion of the

races in practically all areas of their common life existed in
i.lorth Carolina. This condition continued essentially unbroken

3I



for another sixty-odd years, through both World Wars and the

Korean conflict, and through Ehe 1950's. During this period, in

addition to prohibiting inter-racial marriages, state statutes

provided for segregation of the races in fraternal orders and

societies; the seating and waiting rooms of railroads and other

common carriers; cemeteries, Prisons , )ails and juvenile

detention centers; institutions for the bIind, deaf and mentally

itl; public and some private toilets; schools and school

districts; orphanages; collegest and library reading rooms.

With the exception of those laws relating to schools and

colleges, most of these statutes $rere not repealed until after

passage of the federal Civil Rights Act of 1964, some as late as

1973.

Public schools in North Carolina were officially segregated

by race untit 1954 when Brown v. tsoard of Education was decided.

During the long period of de iure segregation, the black schools

were consistently less welI funded and were qualitatively

inferior. Eollowing the Brown decision, the public schools

rematned substantially segregated for yeE another fifteen years

on a de facto basis, in part at least because of.various

practical impediments erected by lhe state to judicial

enforcement of the constitutional right to desegregated public

education recogniz.ed in Brown. As late aS 1960 , on|y'226 black

students throughout the entire s'tate aEEended formerly aIl-white

public schools. Until the end of the 1960's, practically aIl

32



the staters public schools remained almost aIl white or almost

alI bIack. Substantial desegregation of the public schools only

began to take place around a decade dgo, following the Supreme

Courtrs decision in Swann v. i,tecklenburq County Board of

Edqcalfqn, 402 U.S. 1 (197I) . fn the interval since, "\^rhite-

flight" patterns in some areas of the state have prevented or

reversed developing patterns of desegregation of the schools.

In consequence, substantial pockets of de facto segregation of

the races in gublic school education have re-arisen or have

continued to exist to this time though without the great

disparities in public funding and other support that

characterized de iure segregation of the schools.

tsecause significant desegregation of the public schools

only commenced in the early 1970's, most of the black citizens
of the state who were educated in this state and who are over 30

years of age attended qualitatively inferior racially segregated

public schools for all or most of af,"ir primary and secondary

education. The first group of black citizens who have attended

inte!rated public schools throughout their educational careers

are just now reaching voting age. In at leas t . par t, iaI
consequence of this segregated pattern of public education and

the general inferiority of de if segregated black schools,

black citizens of -.the state who are over 25 years of age are

substantially more likeIy than'whit,es t,o have completed iu="

than B years of education (31.5* of blacks; 22.08 of whites),

33



and are substantially less like1y than whites to have had any

schooling beyond high school (17.3t of blacksi 29.3* of whites).

Residential housing patterns in North carolina, as

generally in states with histories of de iure segregation, have

traditionally been seParated along racial lines. That Pattern

persists today in North Carolina generally and in the areas

covered by the challenged districts sPecifically; in the latter,

virtually all residential neighborhoods are racialty

identifiable. Statewide, black households are twice as IikeIy

as white households to be renting rather than purchasing Eheir

residences and are substantially more likely to be living in

overcrowded housing, substandard housing, or housing with

inadequate plumbing.

Black cit.izens of North Carolina have historically suffered

disadvantage relative to white citizens in pubtic and private

employment. Though federal employme"t 9iscrimination laws have,

since L964r Ied to improvement, 'the effects of past

discrimination against blacks in employment ccntinue at present

to-contribute to their relative disadvantage. On a statewide

basis, generally replicated in the challenged districts-in this

action, blacks generally hold lower paying jobs than do whites,

and conSistently suffer higher incidences of unemployment. In

public employment by Ehe state, t:t example, d higher percentage

of black employees Ehan of whites is enployed at every salary

- 34



leve1 below $12,000 per year and a higher percentage of white

employees than black is employed at every level above S12,000.

At least partially because of this continued disparity in

employment opportunities, black citizens are three times as

Iikely as whites to have incomes below the poverty level (30E to

10t); the mean income of black citizens is 64.9t that of white

citizens; white families are more than twice as likeIy as black

f arnilies t,o have incomes over $20 ,000; and 25.18 of all black

families, compared to 7.3* of white families, have no private

vehicle available for transportation.

In matters of general health, black citizens of North

Carolina are, on available primary indicators, as a group less

physically healthy than are whiEe citizens as a group. On a

statewide basis, the infant mortality rate (the standard health

measure used by sociologists) is approximately twice as high for

non-whites (predominately blacks) as for whites. This statervide

figure is generally replicated in MeckIenburg, Forsyth, Durham,

Wake, I^liIson, Edgecombe and Nash Counties (alI included within

the ihallenged multi-member districts). Againr on a statewide

basis, the death rate is higher for black citizens than for

white, and the Iife-expectancy of black citizens is sho.rter than

is Ehat of whites

On all the socio-economic.factors treated in the above

findings, the status of black ciEizens as a group is lower than

is that of white citizens as a group. This is true statewide,

35



and it is true with respect to every county in each of the

districts under challenge in this action. This lower socio-

economic status gives rise to special group interests centered

upon those factors. At the same time, it operates to hinder the

grdup's ability to participate effectively in the political

process and to elect representatives of its choice as a means of

seeking government's awareness of and attention to
23/

interests.

Other Voting Procedures That Lessen the Opportunity of
tsIack Voters to Elect Candidates of Their Choice

those

In

single

uncons t i
since 19

pr imary

t6 3-I11.

addition to the numbered seat requirement and the anti-

shot provisions of state ]"* that were declared

t,utional in Lgl2, see supra p.28, North Carolina has,

15, had a majority vote requirement which aPplies to aI1

elections, but, not to general elections. N.C.G.S. S

24/

a')Lr Section 2 claimants are not required to demonstrate by
direct evidence a causal nexus between their relatively
.depressed socio-economic status and a lessening of their
opportunity to participate effectively in the political Process.
See S. Rep. No. 97-4L7 , supra note 10, a.t 29 n.114. - Under
lncorporaEed White v. Reqester jurisprudence, "Ii]nequality of
access is an inference .which flows- from the existence of
economic and educational inequalities." Kirksev v.'Board of
Supervisors, 554 F.2d 139, 145 (5ttt Cir.), cert. denied, 434
U.S. 958 (1977). Independently of any such general presumpEion
incorporated in amended Section 2, we would readily draw the
inference from the evidence in this case

)LL1 There is no suggestion that when originally enacted in
1915, its purpose was racially discriminatory. That point is
irrelevant in assessing its present effect, as a continued
mechanism, in the totali.ty of circumstances bearing upon
plaintiffs' dilution claim. Sqq Part II, supra.

36



The general effect of a majority vote requirement is to

make it less Iikely t,hat the candidates of any identifiable

voting minority will finally win elections, given the necessity

that they achieve a majority of votes , if not in a first

election, then (if called for) in a run-off election' This

generally adverse effect on any cohesive voting minority is, of

course, enhanced for racial minority groups if, as we find to be

Ehe fact in this case, see infra pp.48-58, racial polarization

in voting Patterns also exists.

. WhiIe no black candidate for election to the North Carolina

General As'sembIY either in the challenged districts or

elsewhere has so far lost (or failed to win) an election

solely because of the majority vote requirement, the requirement

nevertheless exists as a continuing practical impediment to the

opportunity of black voting minorities in the challenged

districts to elect candidates of their.choice.

The North Carolina majority votd requirement manifestly

operates with the general effect noted upon alI candidates in

pr i.mary elections. Since 1950, eighteen candidates for the

General Assembly who led first primaries with less . than a

majority of votes have lost run-off e'tections, ds have trselve

candidates for other statewide offices, including a black

candidate for Lt. Governor and a black candidate for'Congress.

The requirement therefore necessarily operates as a generaI,

ongoing impe,iiment to any cohesive voting minoriEy's opportunity

37



to elect candidates of its choice in any contested Primary, and

particularly to any racial minority in a racially-polarized vote
2s/

setting.
North Carolina does not have a subdistrict residency

reqdirement for members of the Senate and House elected from

multi-member districts, a requirement which could to some degree

off-set the disadvantage of any voting. minority in multi-member
u'/

dist,r icts.

Use of Racial Appeals in Political Campaiqns

From the Reconstructicn era to the presenE time, appeals to

racial prejudice against black citizens have been effectively

used by persons, €ither candidates oL their supportersr ds a

means of influencing voters in North Carolina political

campaigns. The appeals have been overt and blatant at some

times, more subtle and furtive at others. They have tended to

be most overt and blatant in those p$riods when blacks erere

openly asserting political and civil rights during bhe

Reconstruction-Fusion era and during the era of the major civil

rights movemenE in Ehe 1950's and 1960's. During the period

from ca. 1900 to ca. 1948 when black citizens of the stdt,e were

generally quiescent under de iure segiegation, and when there

rrrere few black voters and no bl-ack elected officials, racial

:
White v. Reqester, 4L2 U.S. 775, 766 (1973).

id. at 766 n.10.

25

26

See

See

-38



appeals in political campaigning $rere simply not relevant and

accordingly were not used. With the early stirr:ipgs of what

became the civil rights movement following World War fI, overt

racial appeals reappeared in the campaigns of Some North

Carolina candidates. Though by and large less gross and

virulent than were those of the outright white supremacy

campaigns of 50 yearS earlier, these renewed racial appeals

picked up on the same obvious themes of that earlier time:

black domination or influence over "moderate" or "1iberal" white

Candidates and the threat Of "negro ruIe" or "bIack power" by

blacks "bloe voting" for black candidates or black-"dominated"

candidates. In recent years, as thg civil rights movement,

culmi.nating in the Civil Rights Act of 1964, completed the

eradication of de iure segregation, and as overt expressions of

racist attitudes became Iess socially acceptable, these appeals

have become more subtle in form . and furtive in their

dissemination, but they persist to thii time.

The record in this case is replete with specific examples

of' this general pattern of racial appeals in political

campaigns. In addition to the crude cartoons and pamphlets of

the outrighE white supremacy camPaigning of the 1890's which

featured white poli.t,ical opponents in the company of black

political Ieaders, later examples irclude various campaign

materials, unmiStakably appealihg to the Same racial fears and

prejudices, that $rere disseminated during some of the most hotly

39



contested statewide campaigns of the staters recent history:
the 1950 campaign for the United States Senate; the 1954

campaign for the United States Senate; the 1960 campaign for
Governor; the 1968 campaign for Governor; the 1968 Presidential
campaign in North carorina; the ],g72 campaign for the united
states senate; and most recentry, in the imminent 1984 campaign

for the United States Senate

. Numerous other exarnples of assertedly more subtle forms of
"telegraphed" racial appeals in a great number of local and

statewide elections, abound in the record. Laying aside the

more attenuated fcrms of arguably racial allusions in some of
theser w€ find that racial appeals in.North Carolina political
campaigns have for the past thirty years been widespread and

persistent.

The contents of t,hese materials reveal an unmistakable

intention by their disseminators to exploit existing fears and

prejudices and to create new fears and prejudices on the part of
white citizens in regard to black ci-tizens and to brack

citiz-ens' participation in the political processes of the state.
The cont,inued dissemination of ttrese mater i-a1s throughout this
period and down to the present time evidences an . informed

perception by the persons who have disseminated them' that they

have had their intend.ed effect to a degree warranting their
continued use.

on this basis, we find that, the historic use of raciar
appeals in political campaigns in North Caroiina persists to the

40. -



present time and that its effect is presently to lessen to some

degree the opPortunity. of black citizens to participate

effectively in the political processes and to elect candidates

of their choice.

'The Extent of Election of B1ack Citizens to Public Office

Statewide history. It aPpears that, with cne exception, ro

black citizen r.{as elected during this'century to public off ice

in iilorth Carolina until af ter World War II. In 1948 and during

the early 1950's a f ew black citizens !.rere elected to var ious

city councils. Twenty years later, in 1970, there were in the

state 62 black elected officials. In 1959 a black citizen was

elected to the State House of Representatives for the first time

since Reconstruction, in L975 two blacks were elected, for the

first, time, to the Senate. From 1970 to 1975 the number of black

elected officials increased from 62 to over 200 statewide; in

L982, that number had increased to 255 i
At present the number of elected black officials remains

eui-t1 low in relation to total black popu-lation, rvhich is 22.42

of the state total. Black cit.izerls hold 9t of the city council

seats ( in cities of over 500 population) ; 7.3t of - county

commission seats; 4t of sheriff 's offices; and It of th-e offices

of Clerk of Superior Court. There are 19 black mayors, 13 of

whom are in nrajority black municipalities. Of the. black city

counci I members, approximately 10? are from major i ty black

municipalities or election districts. Three black judges have

41



been elected in statewide elections to seats to which they had

been appointed by the Governor. Other than these judges, DO

brack has yet been elected during this centurlt to any statewide

office or to the Congress of the United Stat'es as a

represent,ative of this state.

Between t97I and 1982 there have been,6t any given time,

between two and four black members of the North Carolina House

oE Representatives out of a total oi LzO between I.6t and

3.38. From Lg75 to 1983 there have been, &t any given time,

either one or two black members of the State Senate out of a

total of 50 between 2* and 42. Most recently, in L982, after

this action was filed, I1 black citizens were electeil to Ehe

state House of Representatives. six of those II were elected

from multi-member districts in which blacks constituted a voting

minority (including 5 of those chatlenged); 5 were elected frotn

newly created ma jor ity black distr icts..

Historically, in those multi-memkier districts where some

blacks have succeeded in be ing elected, overall black

candiCacies have been significantly Iess successful than white

candidacies. Black candidates who, between 1970 and t9-82, won

in Democratic prinaries in the six multi-member districts under

challenge here were t,hree Eimes as likely to Iose in the general

elect,ion as were t,heir- white Democratic counterparEs, a f act. of

statistical significance in assessing the continued effect of

race in those elections.

42



In the Challenqed Multi-Member Districts

House District 36 (Meckfe 22

(Yecklenburq/Cabarrus Counties) .

In this century one black citizen has been elected to the

state House of Representatives and one black citizen has been

elected to the state senate from Mecklenburg county. The House

member was elected as one of an eight-member delegation in L982,

af ter this lawsuit rrras commenced. Seven other black citizens

had previously run unsuccessfutly for a House seat. The senate

member served as one of a 4-member delegation from i"Iecklenburg

and Cabarrus Counties from 19?5 to 1980. Since then two black

citizens have run unsuccessfully and n'o black no$, serves on the

Senate delegation.

Since World War II, blacks, who now constitute 3It of the

city's population, have been elected to the City Council of

Charlotte, but never in numbers remotely proportional to their

percentage of the city's population. During the period 1945 to

1975, when the council vras elected all at-large, blacks

constituted 5.48 of its membership. From L977-L98L, when the

council $ras elected partially at-large and partially by

districts, blacks won 28.5t of Ehe district seats compared with

L6.7t of the at-large seats, thouqh more ran for the latter than

the former.

One black citizen has been elected ( three times) and

defeated one time for membership on the five-member County Board

43



of Conmissioners, and presently Serves. Two black citizens have

been elected and now serve on the nine-member County Board of

Educat ion.

Following trial of this action, a black citizen was elected

mayor of the City of Charlotte, running as a Democrat against a

white Republican. The successful black candidate, a widely-

respected architect, received aPProximately 38t of the white

vote.

House District No. 39 (part of Forsvth CounEv).

Before Lg74 black ciEizens had been elected to the City

Council of Winston-Salem, but t,o no other public office. In

L974 and again in L976 a black citizen was elected to the House

of Representatives as one of a five-member delegation. In 1978

and I980 ot,her black citizens ran unsuccessfully for the House.

In L982, after this litigation tras commenced, two black citizens

were elecEed to the House.

No black citizen has been elected to the Senate from

For.syth CountY.

Since L974, a black citizen has been elected, twice failed

to be reelected, then succeeded in being reelected to' one of

eight seats on the otherwise all-white Board of Education; and

another has been elected, failed to be reelected, Ehen succeeded

ected- to one of five seats on the otherwise all-in being reelected to one of five seals on the otherr

white Board of County Commissioners.

House District No. 23 (Durham Countv).

44



Since 1973 a black citizen has been elected each two-year

term to the State House. No black citizen has been elected to

the Senate. Since 1959, blacks have been elected to the Board

of County Commissioners, and three of Ewelve Durham City Council

members are blacks elected in aE-large elections. The City of

Durham is 47* black in population.

House Dist[ict No. 21 (Wake Count.y) .

. A black citizen has been twice elected to the State House

five-member delegation from this distr ict and 1s presently

serving. Another black citizen was elected for two terms to the

State Senate, serving from 1975 to 1978.

A black citizen has been twice . elected Sherif f of !'Iake

County and is presently in that office. Another black citizen,
who lives in an affluent white neighbor:hood, has served since

L972 as the only black on the seven-member County Board of

Commissioners. Another black citizen,. elected from a majority
black district, serves as the only btack on the nine-member

County School Board. Another black citizen served one term as

maybf of the City of Raleigh from L973 to 1975, and still
another serves on the Raleigh City Council.

House District No. I (Edqecombe, Nash, Wilson Counties).

There has never- been a black member of the State House or

Senate from the area covered by-this district. There had nqver

been a black member of the Board of County Commissioners of any

of the three counties until L982 when two blacks were elected to

45



the five-member Board in Edgeconbe County, in which blacks

constitute 43t of the registered voters. In Wilson County,

where the black population is 36.5t of the total, one of nine

members of the County Board of Education is black. In the City
of . Wilson, which is over 40t black in population, one of six

city councilmen is b1ack.

Senate District No. 2 (Northampton, llertford, Gates,

Bertie, Chowan, and parts of Wabhinqton, Martin, Halifax and

Edqecombe Counties).
' No black person has ever been elected to the State Senate

from any of the area covered by the district. In the last four

years, black candidates have won three elections for the State

House from areas within the borders of this district, one in

19B0 in a majority-white multi-member district, two in 1982 in

differenL majority-black districts. In Gates County, where 49eo

of the registered voters are b1ack, a black citizen has been

elected and presently serves as Clerk of Court. In Halifax

County, black citizens have run unsuccessfuly for the tsoard of

CodnEy Commissioners and for the City Council of Roanoke Rapids.

Looking only to these basic historical facts respecting

black citizens' election to public of f i'ce, we draw the following

inferences. Thirty-five years after the first 'successful

candidacies for public- of f ice by black citizens in this centu.ry,

it has now become possible for black citizens to be elected to
office at alt levels of state government in North Carolina. The

46



o

chances of a black candidate's being elected are better where

the candicacy is in a majority-black constituenclz, where Ehe

candidacy is in a single-member rather than a multi-member or
at-Iarge district, where it is for local rather than statewide
office, and where the brack candidate is a member of the
political party currently in the ascendancy with voters.
Rerative to white candidates running for the same office at
whatever revel, brack candidates remain at a disadvantage in
terms of relative probability of success. The overall result,s
achieved to date at all leveIs of elective office are minimal in
reration to the percentage of bracks in the total population.
There are intimations from recent history, pdrticurarry from Lhe

L982 elections, that a more substantial breakthrough of success

could be imminent - but there were enough obviously aberraticnal
aspects present in the most recent elections to make that au/matter of sheer speculation. rn any. event, the success that

Both -parties offered evidence - anecclotal, informed ,,ray
opinion, " and documentary to establish- on the one hand thairecerrt black successes indicated an established breakthrough
f5om any preexisEing racial vote dilution and on the other, tfritthose successes are too 'rhaphazard" and aber-rational in Lerms ofspecific candidacies, issuesr dnd political trends and, in anyevent,, still too minimal tl numbers, to support any suchurtimate inf erence. Heaviry emphaiized wiiir respe'ct - -tdsuccessful black candidacies in 1982 was the fact that, in someelections the pendency of this very liEigation worked a one-timeadvantage for black candidates in the fdrm of unusual organizedpolitical support by'white leaders concerned to- foiestarrsingle-member distriCting, and that this cannot be expected torecur. our finding, as stated in text, refrects our weighing ofthese conflicting inferences.

47



has been achieved by black candidates to date is, standing

alone, too minimal in total numbers and too recent in relation

to the long history of comPlete denial of any elective

opportunities to comPe1 or even arguably to support an ultirnate

firiding that a black candidate's race is no longer a significant

adverse factor in the political prccesses of the state - either

generally or specifically in the areas of the challenged

districts.
Racial Polarization in Votinq

Statistical evidence presented by duly qualified expert

witnesses for plaintiffs, supplemented to Some degree by direct

testimony of lay witnesses, establiShesr dod we find, that

within all the challenged dist,ricts racially polarized voting

exists in a persistent and severe degree.

MuIti-Member Distr icts

To analyze the existence and bxtent of any racially

polarized voting in the challenged multi-member districts, DE.

tsernard Grofman, a duly qualified expert witness for plaintiffs,

had collected and studied data from 53 sets of recent elecEion

returns involving black .candidacies in all of the challenged
28/

multi-member disEricts.- Based upon two complernentary methods

28 rncruded were aIl the elections for the GeneLal Assembly
in which t,here were black candidates in Mecklenburg, Durham, and
Forsyth County; elections for the'State House of Representatives
in i^IiIson, Edgecombe, and Nash Counties; and elections for the
State Senate in Cabarrus County for the election years 1978,

(Continued on nelt page)

48



of analysis

opinion, and we

2e/
the collected data, Grofman gave as his

find, that in each of the elections analyzed

(fn. 2A continued)
1980, and 1982; county-wide local elections in each of Wilson,
Edgecombe and Nash Counties in which there were black
candidates. The 53 elections included both primary and general
elections and represented a total of 32 different election
contests.

29 The two methods. employedr' both standard in the
literature for the anallrsis of racially polarized voting, hlere.
an "extreme case" analysis and an "ecological regression"
analysis. The extreme case analysis focuses on voting in
racially segregated precincts; the regression analysis uses both
racially segregated and racially mixed precincts and provides
any corrective needed to reflect the fact that voters in the two
types may behave differently. fn Dr. Grofman's analysis the
results under both methods conformed closely in most cases. The
purpose of both methods is simply t,o determine the extent to
whi.ch blacks and whites vote differ6ntly from each other in
relation to the race of candidates.

Defendants' duly qualified expert witness, DE. Thomas
Hofe1ler, had studied Dr. Grofman's data and the mathematics of
his analysis of that data, and heard his live testirnony. Aside
f rom two mat,hematical or typographical errors, DE. Hof el1er did
not question the accuracy of the data, its adequacy as a
reliable sample for the purpose used,'nor. that [he methcCs of
analysis used were standard in t,he Iiterature. He questioned
the reliability of an extreme case analysis st.anding a1one, but,
as indicated, Dr. Grofman's did not stand a1one. Dr. Hofeller
also questioned Dr. Grofman's failure to make an exact count of
vober turn-out by race rather than using estimated figures. The
Iiterature makes no such demand of precision in obtaining this
figure, and Dr. Grofman's method of esEinrating is accepted. Dr.
I{ofeller made no specific suggestion of error in the 'figures
used

We have accepted the accuracy and reliability of the data
collected and the methods of analysis used by Dr. Grofman for
the purposes offered. The general reliabiliEy of Dr.'Grofmanrs
analysis hras f urth-er conf irmed by t,he Eestimony of Dr. Theodore
Ar r ing ton, a duly quali f ied 'exper t' wi Eness fo r the Puqh
intervenor-plaintiffs, see note 4, supra. Proceeding by a
somewhat different methodology and using different data, Dr.
Arrington came Eo the same general conclusion respecting the
extent. of racial polarization in the narrower area of his study.

of

49



racial polarizat,ion did exist and that the degree revealed in

every election analyzed was statistically significant, in the

sense that Ehe probability of its occurring by chance was less
30/

than one in 100,000; and that in all but two of the elections

thd degree revealed was so marked as to be substantively

significant, in the sense that the results of the individual

election would have been different depending upon whether it ttad

been held among only the white voters or only the black voters
L/in the election.

Additional facts revealed by this data support the ultimate

finding that severe (substantively significant) racial
polarization existed in the multi-member disEr ict elections

30 These conclusions were reached by determining the
correlation between the voters of one race and the number of
voters who voted for a candidaEe of specified race. In
experiencer correlations above an absolute value of .5 are
relatively rare and correlations above. .9 extremely rare. Alt
correlations found by Dr. Grofman in Ehe elections studied had
absolute values between .7 and .98, with most above .9. This
reflected statistical significance at the .00001 level
probabiliLy of chance as explanation for the coincidence of
voter's and candidate's race Iess than one in 100r000. Cf.
trtaioi v. Treen, supra, slip op. 30-32 n.L1 (comparable analyFfs
of racial vote polarization by correlaEion coefficients) .

3I The two exceptions involved Lg82 State House eiections
in Durham and l{ake Count,ies, respectively, in which black
candidates were elected to seats in majority white multi-member
districts. Both were incumbents, and in Durham County there
were. only two white' candidates in the raee for three seats so
that the black qandidate had t,o win. Though each black
candidate won, nelther received a majority of the white vote
cast. These two exceptions did riot alter Dr. Grofman's
conclus ion that, in his terms, racial polar ization in the
elections analyzed as a whole was substantively significant.
Nor do they alter our finding to the same effect.

50



u/considered as a who1e. In none of the elections, primary or
general, did a black candidate receive a najority of white votes

cast. on the average, 81.79 of white voters did not vote for any

black candidate in the primary elections. In the general

eleitions, white voters almost ahvays ranked black candidates

either last or next to last in the multi-candidate field except

in heavily Democratic areas; in these ratter, white voters

consistently ranked black candidates last among Democrats if not
last or next to last among all candidates. In fact,
approximately two-thirds of white voters did not vote for black

candidates in general elections even after the candidate had won

the Democratic primary and the only choice was Eo vote for a

Republican or no one. Black incumbency alleviated the general

lever of porarization revealed, but it did not eliminate it.
some black incumbents lvere reerected, but none received a

majority of white votes even when the election was essentially
uncontested. Republican voters were more disposed to vote for
white Democrats than to vote for brack Democrats. The racial
porhfization reveared, of course, runs both ways, but it was

32 DefendanEs' expert witness questioned the accuracy of
any - oqinion as to the "substantive" significance ofstatistically significant racial polarization in ioting that didnot factor in alI of the circumstances that might.influenceparticurar votes i-n a particular election. This flies in theface of the general'use, in litigation and in the generar socialscience literature, of correlation ahalysis as the standard
method for determining whether vote dirution in the regal(substantive) sense exists, a use conceded by defendanL,s
exper t.

51



much more disadvantageous t,o black voters than to white. Aside

from the basic popuration and registered voter majority
advantages had by white voters in any raciarly polar Lzed

setting, fewer white voters voted for black candidaEes than did

braik voters for white candidates. rn these elections, a

significant segment of the white voters wourd not vote for any

black candidate, but few black voters wourd not vote for any

white candidate. One revealed consequence of this disadvantage

is thaL to have a chance of success in electing candidates of
their choice in these districts, brack voters must rely
extensivery on singra-shot voting, thereby forfeiting by

practicar necessity their right to vote for a fulr slate of
cand idates .

The raciar polarization reveared in the murti-member

elections considereC as a whole exists in each of the challenged

districts considered separaEery, ES indicated by the forlowing
speciEic findings rerated to erections within each district.

House District No. 36 and Senate Distr ict No. 22

(Mecklenburq and Cabarrus Countieg) .

rn erections in House District No. 36 (Mecklenburg county)

between 1980 and Lg82, the forlowing percentages of brack and

white voters voted for the black candidates indicated:

Pr imary.
White tslack

Gene r a1
White B1ack

1980 (Maxwell)
L982 (Berry)
1982 (Richardson)

22
50
39

92
92

7L
79
7L

52

2B
42
29 88



In elections in Senate District No.22 (Mecklenburg and

cabarrus counties) between L97a and L982, the following
percentages of white and brack voters voted for the brack

candidates indicated:

1978 (Alexander)
1980 (Alexander)
1982 (PoIk)

Pr imary
White Black

General
White BIack

47
23
32

87
78
83

41 94
n/a n/a
33 94

The fact lhat candi.date Berry received votes from one half
of the white voters in the primary does not alter the conclusion

that there is substantial racially polarized voting in
i"lecklenburg county in pr imar ies. There were only seven wh i te

candidates for eight positions in the primary and one black

candidate had to be elected. Berry, the incumbent chairman of
the tsoard of Education, ranked first among black voters but

seventh among whites.

The only other black candidate who approached receiving as

many as half of the white votes was Pred Alexander, running in
the. 1978 Senate primary as an incumbent. 'Alexander ranked last
among white voters in the primary and would have been defeaEed

if the election had been lgld only among the white uoters.
Approximately 508 of the whiEe voters voted f.or neither

Berry. nor Alexander in the general election

- 53



House D i str ict No. 39 (For srlth Countv) .

In House and Senate elections in Forsyth County from 1978-

LgBz the following percentages of white and black voters voted

for the black candidates indicated:

Pr imary
White Black

General
White Black

1978 House -
Kennedy, H.
Norman
Ross
Sumter (Repub. )

l9B0 House -
Kennedy, A.
Norman

I980 Senate -
SmaII

1982 House -
Hause r
Kennedy, A.

28
I

L7
n/a

40
18

L2

25
35

76
29
53
n/a

86
35

5I

80
87

32
n/a
n/a
33

32
n/a

n/a

42
46

93
n/a
n/a
z>

95
n/a

n/a

87
94

As revealed by this data, ho black candidate, whether

Successful or not, has received more than 408 of the white votes

cast in a primary, and no black candidaie has received more than

462 of the white votes Cast in a general election during the

Iast .four elections.

Though black candidates Kennedy and Hiuser won thg House

election in L982, this does not alter the conclus.ion that

substantial racial polar i,zaLion of voting continuecl through that

election. White voter-s ranked Kennedy and Hauser seventh and

eighth, respectively, out of eight candidates in if,. general

election. In contrast black voters r:anked them first and seeond

respectively.

-54



House District No. 23 (Durham Countv).

In House and Senate Elections from L97E through L982, the

following percentages of white and black voters voted for the

black candidates indicated:

1978 Senate
Barns (Repub. )

L978 HouseeTemZlf
Spauld ing

1980 llouse
EpauETns-
1982 House
deme n t
Spauld i ng

Pr imary
i{hite Black

n/a

General
White Black

L7

n/a n/a
. 43 B9

IO
15

n/a

26
37

n/a

89
92

n/a

32
90

n/a n/a
37 89

9049

tslack candidate Spaulding ran unccntested in E,he general

election in 1978 and in the primary and general election in

1980. In the L9AZ election Ehere was no Republican ogposition

and the general election vras, for all practical purposes,

unopposed. A majority of whit,e,roeers failed to vote for the

brack candidat,e in bhe generar erection in each of these years

eveh -when t,hey had no other choice. Pur thermore, in the L9a2

primary, there leere only two white candidates for three seats so

that one black necessarily'had to win.. Even in this situation,
53t of white voters did noE vote for the black incumbent, the

clear choice of the black voters._ At least 378 of wi:iLe vot,ers

voted f or no black cand idate even when one vras ce r t,a in to be

elected.

55



House District No. 2I (irlake County) .

In elections for the North

Representatives frcm 1978 through Lgg2 the

of white and black voters voted for
indicated:

Pr imary
White Black

CaroI i na

fo I lowi ng

the black

House of

percentages

cand iCate

1978 (Blue)
1980 (B1ue)
L982 (BIue)

2L
3I
39

Gener a 1
White Black

n/a n/a76
81
82

44
45

9C
91

. The fact that black candiCate BIue won election in the last
two of Ehese candidacies dces not alter the conclusion thaE

substantial racial polarization in voting persists in this
district. rn wake county winning trre Democratic prirnary is
historically tantamount to erection. NeverEheres.s, in t,hese

elections from 60e to 808 of white voters did not vote for the

black canrJicate in the primary compared to 76?e and g0B of black
voters who did. :

Wake County is overwhelmingly Democratic in registration
and-nor:nar1y votes along party rines. Nonetheress, 558 of white
voters did not vote for the btrack Democrat in the general

elec t ion.

In counEy-wide o. -district-wide elections from 1975 Ehrough

Lg82 in House District No. 8 and wirson, Edgecombe and Nash

counties, the forlowing percentag'es of white anrl brack vcters
voted for the black candidates indicated:

House District No. I (wilson, Nasir. Edqeeoini>e counties

56



Pr imary
White Black

General
White Black

House District No. I
1982 House-Carter

Wilson Count
198-? Congress-lst Primary-t4ichaux

-2nd Primary-Michaux

L976 County Commission-Jones

Edqecornbe Countv
Le82 consress:l:: 

II lil::l:ili:l::x
L982 County Commission-Green

-McCIa i n
-Thorne
-Walker

Nash County
L982 Congress-Ist Primary

.2nd Pr imary

L982 County Commission-Sumner

6
7

32

66

96
9B

77

B4
97

L4
27
73
82

73
B1

B2

38
36

91
94

2
3

0
0
4
2

.6
5

Wi tir one exception, over this per iod rnore than 90? of the

white voters have failed to vote for the brack candidate in
every primary in each of these Lhree counties. The one time, in
L9a2, that brack Democratic candidates have run in a general

election, they faired to receive over 60t-of the white vote even

though Edgecombe county is overwhermingry (88.58) Democratic.

This data revears racial porarization of voEing in House

District No. 8 so extrerne thaE, arl other factors- aside, no

brack. has any chance of winning election in the district as it
is presently constituted. This' concrusion, as expressed in
evidence by praintiffs' expsrt .witnessr wdS not seriously
challenged by defendants.

57



S inqle-Itember Di str ict

Senate District No. 2.

Essentially unchallenged and unrebutted opinion evidence

given by plaintiffs' expert witness, Dr. Grofman, and

testimonial evidence of experienced local political observers

and black community leaders establishes that severe and

persistent racial polarization in vo'ting exists in the area

covered by the challenged single-member Senate District No. 2.

. Based on these evidentiary findings with respect to racial
polarization in votingr w€ find that in each of the challenged

districts racial polarization in voting presently exists to a

substantial or severe degree, anci tilat in each district it
presently operates to minimize the voting strengtir of black

voters.

Other Factors Bearinq Upon the Claim gf Racial Vote Dilution

Increased oarticipation bv black citizens in the political
process.

' The court finds that in recent years there has been a

measurable increase in the abiliEy and willingness o.f black

citizens to participate in the staters political processes and

in its government at. state and local levels. The present state

adrninistration hag- appointed a s igni f icant number of black

ci t izens to judicial and executife pos i tions in siate
government, and evinces a good faith determinat.ion further to

5B



open the political processes to black citizens by that means.

In some areas of t,he state , includ ing sorne of those d irecEly

involved in this litigaEion, there is increased willingness on

the part of influential white politicians openly to draw black

citizens into political coalitions and openly to support their
candidacies. Indeed, among the witnesses for the state were

respecteC and influential political figures who themselves fit
that description.

The court has considered what this implies for the

plaintiffs' claim of present racial vote dilution - of a present

Iack of equal opportunity by black citizens relative to white

citizens to participate in the politi-cal process and to elect
candidates of their choice. Our conclusion is that though this
wholesome development is undoubtedly underway and will
presumably continue, it has not proceeded to the point of

overcoming still entrenched racial vote.polarization, and indeed

has apparently done little to diminish the level of that single

most powerful factor in causing racial vote dilution. The

participatory lever of brack citizens is stilr minimar in
relation to the overall black populationr dodr. quite

understandably, is largely confined to the relaEively few

forerunners who have. achieved professional status or otherwise

emergecl from the -. generally depressed socio-econo*i. status

whichr ds we have found on Ehe record produced in this case,

remains the present lot of the great bulk of black citizens.

59



Divisions within the black community.

Not all black citizens in North Caro1ina, notlithstanding
that t,he class technically certified in this action includes all
who are registered to vote, share the same views about the

preisent reality of racial vote dilution in the challenged

districts (or presumably elsewhere), nor about the appropriate
solution to any dilution that may exist.

Several black citizens testified in this actionr ES

witnesses for the state, to this effect, identifying their own

views as opposed to those advanced by plaintiffs' witnesses. rn

terms of Eheir experience, achievement and general credibility
as witnesses, the views of these defendant-witnesses were

clearry as deserving of acceptance by the court as were those of
the black citizens who, in larger numbers, testified as

witnesses for the plaintiffs.
Two facts appeared, however, to the court. The first is

that the views expressed by defendants' witnesses went almost

excrusively to the desirability of the remedy sought by

pfainliffs, and not to the gresent existence of a condition of
vote dilution. The other fact is that the defendants'
witnessesr views must be accounted, oh the record adduced in
this case, a distinct minority viewpoint within the plaintiff
class as certified- The division betw-een the two elements- is
essentially one of proper political ends and means to break free
of raciar vote dilution as a present ccndition, and not of the

60



present existence of that condition. Only if a dissident

element were so large as to draw in question the very existence

of an identifiable black community whose "ability to

participate" and "freedom to elect candiCates of its choice"

cotiia raEionally be assessed, could the existence of a dissident

view have relevance to the establishment of a racial vote

dilution claim. That clearly is not lhe circumstance herer on

the record made in this action. As earlier indicated, the

further political question of the proper means to eradicate such

racial vote dilution as might be shown presently to exist has

been decided by Congress and does not properly figure in our

judicial inquiry. See Part II, supra..

Eairness of the state leqislative policv underlyinq the

challenqed redistrictinq.
Under amended S 2 it presumably remains relevant to

consider whether race-neutral and coppelling state policies
might justify a redistricting plan that concededly, or at least
arguablyr "results" prima facie in racial vote dilution. The

Senate Report, discussing the . continued relevance of the

"tenuous state policy" inquiry as one of the incorporated Zimmer

factors that evolved in V{hite v. Reqester. - dilution
juris.prudence, indicates as much, though "tehuousness" as a

gauge of intent is o6viously no' longer relevant under S 2, s

" result-onIy" test.
If the procedure markedly departs from past

practices or from practices elsewhere in the

6t



jurisdiction, that bears on the fairness of its
impact. But even a consistently applied practice
premised on a racially neutral policy would not negate
a plaintiff's shorving through other factors that the
challenged practice denies minorities fair access to
the process.

S..B"p. No. 97-4L7, supra note I0, at 29 a n.1I7. See also Maior

v. Treen, EgE, slip op. 67-71 (analyzing state redistricting
policy in terms of fairness).

The parties in this litigation have addresseC the point

under the "tenuous state policy" rubric, and we will assume the

inqu-iry's continued relevance under a "resu1ts"-only test. On

this basis, we are persuaded that no state policy, €ither as

de:nonstrably employed by the legislature in its deliberations,
or as now asserted by the state in Iitigation, could "negate a

showing" here that actual vote dilution results from the

challenged district plan.

During the legislative deliberations on the redistricting
plan, the legislature was well aware of.tne possibility that its
plan could result under then applicable federal law in

imp-elmissible dilution of black citizeni' voting strength if
concentrations of black voters $rere intentionally "submerged" in
multi-member dist,ricts or ."fractured" .into separate districts.
That fact $ras brought to iEs at.tention by special c.ounser, by

bIack. citizens' groups concerned with the problem, and .by
various legislat,ors wrro proposed irans specifically designed to
avoid any possibility of impermissibly diluting black citizens'
votes in these ways. The specific dilution problems oresented

62



by the black voter concentrations in the challenged districts in

this litigation were known to and discussed in legislative
deliberations.

The basic policy justification advanced by the state in

this litigation for the legislature's declination to create

single-member districts to avoid submerging concentrations of

black voters in the challenged multi-member districts was the

maintenance of an historical, functionally sound tradition of

us.ing whole counties as the irreversible "building blocks" of

legislative districting. Although the state adduced fairly
persuasive evidence that the "whole-county" golicy was well-
established historically, had legiEimate functional purposesr

and was in its origins cornpletely without racial implications,

that aII became largely irrelevant as matters Ceveloped in this
particular legislative redistricting plan. At the time of its
final enactment, the state policy though compelled - was that

counties miqht be sp1it. When the Attorney General declined to
give preclearance to the state constitutional prohibition of

courrty divisions in redistricting, the state acquiesced and,

indeed, divided counties thereaftbr both in. non-covered -as well
as covered counties in the final redis-tricting plan. 

.See 
note

3, supra. To the extent the policy thereafter was .to split
counties only when necessary to meet population deviation

requirements or to obtain S 5 preclearance of 'particular

districts and this is what the'record demonstrates such a

63



policy obviously could not be drawn upon to justify, under a

fairness test, districting which results in racial voEe

dilution.
The same findings apply, though with added force, to Senate

District No. 2. There, of course, in the final plan counties

were split; indeed four were sp1it, in t,he face of a proposed

plan which would have yielded an effective black-majority

single-member district which only involved splitting two

counties. Other policy considerations that were plainly shown

to i,aue influenced the legislature in its final drawing of
Senate District No. 2 lines were the prctection of incumbents

and, in the words of one legislator-witness in this action,
swallowing the "smallest of three pilIs" offered by the Justice
Department in preclearance negoEiations respecting the Iowest

permissible size of the black population concentration in the

district. obviousry, neither of these'poricies courd serve to
outweigh a racial dilution result.

The final poricy consideration suggested by Ehe state is
the avoidance of race-conscious gerrymandering. while t,here rnay

be some f inal constitutional constraint here, cf. Kar'cher v.

Daqqett, _ U.S. _, t 5I U.S.L.w. 4853, 48GO (U.S. June

22, 1983) (Stevens,.J., concurring), we find that it is not

approached here by-- the available means- of avoiding submerge-nce

or fragmentation of any of the black voter concentrations at
The most ser ious problem is that posed by thelssue.

64



configuration of the black voter concentration in House District
No. 8, comprised of Wilson, Nash and ECaecombe Counties. The

configuration of the single-member district specifically
suggested by the plaintiffs as a viable one is obviously not a

moait of aesthetic tidiness. But given the evidence, not

challenged by defendants, that in the present multi-member

district the black population, 39.58 of the tota1, simply cannot

hope ever to elect a candidate of its choice, aestheticsr €ls

opposed to compactness and commonalitlr of interests, cannot be

accorded primacy. See Carstens v. Lammr supEB; Skolnick v.

State Electoralrpefq, 335 P. Supp. 839, 843 (N.D. I11. 1971)

(three-judge court) (even cornpactness not a fundamental

requirement).

Ultimate Findinqs of Fact

1. Considered in conjunction with the totality of relevant

circumstances found by the court - tF" Iingering effects of
seventy years of official discrimination against black citizens
in matters touching registration and voting, substantial to

severe racial polarization in voting, the effects of thirty
years of persistenE racial appeals in political campaigns, a

relatively depressed socio-economic status resulting in

significant degree .from a century of de iure and . de facto

segregation, and --the continuing effect of a majority v.ote

requirement - the creation of each of the multi-member districts
challenged in this action results in the black registered voters

55



of Ehat district 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 poritical
process and to elect representatives of their choice.

2. Considered in conjunction with the same circumstances,

Ehe creation of single-member Senate District No. 2 results in
the brack registered voters in an . area covered by senate

Districts Nos. 2 and 5 having their voting strength diluted by

fracturing their concentration into t,wo districLs in iach of
which they are a voting minority and in consequence have less

opportunity than do other members of the electorate to
participate in the political process and to elect
representatives of their choice .33/

33 The state challenges the basic premise of t,his finding
wi th the familiar argument that the relative mer i ts oilegisrative division of a minority population that is not large
enough to form voting majorities in two single-member districtsinto an effective voting majority in one single-member district
and an ineffective minority in another ott on the other hand,dividing it into two substantially influential minorities in twodistricts is so problematical that neither the one nor the otherdivi$ion can properry be adjudged "dilutive" by a court. see,
9.9., Seamon v. Upham, 536 F. Supp. 931 , 949 (E.D. Tex.) (thE-
3udge court) fev'd on other qrounds, 456 U.S. 37 (1982); compare
Jordan v. wi[Egl.,5Zr r. s@pT-Tirs, rt43 (N.d. Mis's.-igE.7i
@urt) , vacaCo-d and remanded for further
consideration in liqhr oFlie edfA, E-F. t.-2077-(f3'E-37
TllffiEljre prefeffice uilEmngeaure) with xiiisev v. eoara
o[ S\rpervisors , 554 F.2d at 150 (dilution possffi
of districts has bare brack population majority). The specifie
argument here is 'that any increase in the present minor.ity
population of 55.1t in senate'District No. 2 wirr be at tha
expense of the present 49.38 black population in Senate District
No. 6, the obvious source for District 2 increase.

(Continued on next page)

66



IV

CONCLUSIONS OF

1. The court has jurisdiction

subject matter of the action under 28

42 u.S.C. S 1973c.

LAW

of the parties and of the

U.S.C. SS 1331, 1343, and

(fn. 33 continued)

We are not impressed with the argument. While the dilemria'
is a real one, we think it is one that Congress has, in effect,
committed to the judgment of the brack community to whom it has
given the private right of action under amended S 2. The right
created is, by definition, that of a "class" and the procedural
means of vindicating it bv a-e1ass action has also been proviCed
by Congress in Fed. R. Civ. P. 23 . I^Ihen, as here, such a class
action is brought by a class which incluCes such a fragmented
concentration of black voters, a group judgment about the
group's best means of access to t!:e political process must be
assumed reflected in the specific claim made by the class. The
Iegitimacy of that group judgment, from the standpoint of
members of the class identifiedr celn be put to test by standard
procedures: by challenges to the adequacy of representation or
the tlzpicality of claims by any members of the idenLified class
who question the wisdom or validity of the class claim underRule 23 (a) (3) & (4) , Fed. R. Civ. p., or even by attempted
intervention under Rule 24, Fed. R. Civ. P. Whenr ds herer Do
such challenges are made, a dilution craim made by the crass isproperly assessed in the terms made, and-on the understanding
that any judgment entered on its basis wilr be binding on all
members of the class who may not later second-guess it under
ordinary principles of claim preclusion, see Restatement
(Second) Judgments S 24, comments b, ci S 25 comments f, m; S
41(1) (e), (2), comment e, orr possibly, judicial estoppel, see
Al1en v, Zuf tch__Ins. Co., 567 F.2d Ll62 (4t,h Cir. 1982') .

If this vrere not the approach taken, a foolproof means
would be provided for irremediable fracturing of any such'
minority voter concentration. That cannot have been intended by
Congress. A different situation of course would be presented if
the crass of brack voters bringing such a dilution-by-fracturing
claim included onry the voters in one of the districts into
which the fracturing had occurred. That is not this case.

67



2. The court is properly convened as a three-judge court

under 28 U.S.C. S 2284(a).

3. The action has been properly certified as a class

action on behalf of all black resldents of North Carolina who

are registered to vote. No challenge is made to the propriety

of the class action under any of the criteria of the governing

class action rule, Rule 23, Fed. R. Civ. p.

4. Of the challenged districts, only Flouse District No.-8.

(Wilson, Edgecombe and Nash) and Senate District No. 2 include

counties that are covered under S 4 (a) of the voting Rights Act

and for which preclearance is required under S 5 of that Act, 42

U.S.C. S 1973c.

The Attorney General's indication on ApriI 27, L982, that,
so far as it affected covered counties, he would inEerpose no

objection under S 5 to Che legislative enactment of the

redistricting plan which, inter al-ia, created House District No.

8 and Senate Distr ict No. 2 does not have the effect of
precluding this claim by plaintiffs brought under amended g 2 to
challenge the redistricting plan in respect of these two

districts . 42 U.S.C. S 1973c; Maior v. Treen, E!pE, slip op.

at 200 n.1; united states v. East Baton Rouqe Parish schoor

tsoard, 594 F.2d 56,59 n.9 (5th Cir. L979)t see also Morris vr.
Gressette, 432 U.S. 49r, 506-07 (tg77). Because the' standards

by which the Attorney General assesses voting changes under S 5

are different from those by which judicial craims under s 2 are

58



to be assessed by the judiciary, see s. Rep. No. 97-417, supra

note 10, at 58r 138-39, and because the former are applied in a

non-adversariar administrative proceeding, the Attorney
General's preclearance determination has no issue preclusive
(collateral estoppel) effect in this action. See Restatement

(Second) Judgments SS 27 comment c; 83 (2) & (3) (1980) .

5. The meaning and intended application of amended g z of
the Voting Rights Act in relation to the claims at issue in this.
action are as stated in Part rr of this Memorandum opinion.

6- on the basis of .this court's ultimate findings of
fact, the praintiffs have ei;tablished that the creation by the'
General Assembry of North carolina of murti-member House

Distr icts Nos. 8 , 21, 23 , 36 and 39 , multi-member Senate

District No. 22, and single-member senate District No. 2 wi1l,
as applied, result in an abrldgement of their voting rightsr ds

members of a crass protected by subsection (a) of amended S 2 of
the Voting Rights Act, in violation of that section.

7. The plaintiffs are entitled to appropriate relief from

the violation.

v

REMEDY

Having determined that the state's redistricting prans, ie.
the respects challenged, are not ih compliance with Etre mandate

of amenced S 2 of the voting Rights Act, the court will enter an

order declaring the redistricting plan viorative of S 2 in those

69



resPects, and enjoining the defendants from conducting elections
pursuant Eo the plan in its present form.

rn deference to the primary jur isdiction of state
regisratures over legislative reapportionment, white v. weiser,
4L2 u.s. 783, 795 (1973), we will defer further action to allow
the Generar Assembry of North carolina an opportunity to
exercise that jurisdiction in an effort to comply with s 2 in
the respects required. This is especially appropriate where, as.

here, the General Assembry adopted t,he pran found viorative of s

2 before the enactment of Fhe amended version of that st,atute
which now appries, and where there has accordingly been no

previous legislative opportunity to assess the amended staLute's
substantial new requirements for affirmatively avoiding racial
vote dilution rather than merely avoiding its intentional
impos i t ion.

Having determined that the present plan violates a secured

voting right, our obligation remains, however, to provide

affirmative judiciar relief if needed to insure compriance by

the state with its duty to construct districts that do not
dilute the voting strength of the plaintiff class in the ways

here foundr or in other ways. See In re: Illinois
conqressionar Districtg Reapportionment cases, No. gr c 1395;'
slip op. (N.D. I11. 198I), aff,d mem. sub nom., Rvan v. Otto,
454 u.s. 1130 (1982); Rvbicki v. state Board of Erections, No.

8r c 6030 (N.D. rlt. Jan. 12, L9B2)i Kirksev v. Board of

70



Supervisors, 554 F.2d 139

958 (t977) .

(5Eh Cir.), cert. denied, 434 U.S.

Recognizing the difficulties posed for the state by the

imminence of 1984 primary elections, the court will convene aE

any time, upon request of the state, to consider and promptly to

rule upon any redistrictingj plan that has been enacted by the

State in an effort to comply with the mandates of S 2 and with
'this decision. Failing legislative action having that effect'
within a reasonable time under the circumstances, not later than

I"larch 15, 1984, the court. wilI discharge its obligation to

develop and implement an appropriate reineoial plan.

An appropriate order will issue.

I certify the foregoing to be a tfub
and cerrr.ci cc",'1 o! ti.4 original.

J. Rich Leonardi Olerk
Url; ,l : .l:.. ;:l ;, ,.. 'i;tlrt

Q__2.-w.
DepuU Clerlt

7I