Motion for Leave to File and Brief of Senators and Representatives as Amici Curiae

    No. tll968

IN TEE

Fryrlrrrre @auu;t d W eHntub F|udeE

Ocroren Tenu, 1985

Lecv H. Tttonravnc, et aL,
APPellants,

v.

ReIJn Gtrrcl.Es, et aL,
APPellees.

ON APPBAL T?'OM TIIE
T,JMTED STATES DISTRICT COI''RT

FOR TIIE EASTERN DISTRICT OF NORTH CAROIJNA

MOTION FOR LEAVE TO FILE AT{D BRIEF OF

SENATORS DENNIS MONCINI' ROBERT J. DOI.q
CHARLES E. GRASSLEY, EDWARD M. KENNEDY'

CHARLES McC MATHIAS, JR- AI{D
HOWARD T(. METZENBAUIVT'

AI{D REPRESENTATIVES DON EDWARDS' H.A'MILTON

FISH, JB- PETEN. W. R'ODINO,'JR- AI{D.
F. JAMES SENSENBRENNER

AS AMICI CARUE IN SI,JPPORT OF APPELIJES

Wrrmn J. Rocn-eR
(Couwel of Record)
M.rnr P. Gnarll
Benrenr L Arrrrr

Annoro & Ponrrn'
l2OO New HamPshirc Ave., N.W'
lYsshingtotr, D.C. 20036
(202\ 8724789

Attornqs for Amici Curiac



No. t3-1968

Ix Tnn

firyrrtrc 6curt of ttp F"itd $tabl:t

Ocronsn Trnu, 1985

Lrcv H. TnonitsuRo, ct al',
APPellants,

v.

RrrPn GtNcLrs, cl al',
APPcllccs.

ON APPEAL FROM THE
UNITED STATESI DISTRICT COURT

FOR TIIE EASTERN DISTRICT OF NORTH CAROLINA

MOTION OF SENATORS DENNIS DeCoNClNl'
ROBERT J; DOLE, CHARLESi E" GRASSLEY'

BDWARD M. KENNEOy' Cfnnl ES McC MATHIAS' JR"

AND HOWARD M. METZENBAUM' AND

REPRESIENTATIVES DON EDWARDS' HAMILTON

FISH' JN., PETER, W" RODINO, JR., AND.F. 
JAMES SENSENBRENNER

FOR LEAVE TO T[,E AMICUS CURIAE BRIEF ON

BEHALF OF APPELLEES

Amici Curiae arc members of the United States Congress

*t o-*"i" principal *-tpon*o and. supporteT "-!:T.":i:.d
J""oi z .i tr,o votiie ttents Act' 42 V's'c' E 1973 ( 1982)'

pursuant to SupremJ Cirrt Rulc 36.3, amici respcctfully

;;;i; i;'nle the accompanving amicus brief''

. Appcllccr havc @nrcoled to amici'r prrticipetion in this crrc' Appcl-

lrnB. horcvcr, hrve denicd @n!cnt'

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As members of rhe United States Senare and House of
Representatives and the respective Judiciary Committees of the
Senate and House, and as key co-sponrcrs of amended Section
2, amici are vitally interested in ensuring that thc Voting Righs
Act is propcrly interprcted. The position raken by the Solicitor
General and appellanrs in this case is inconsistent with the
literal provisions of Scaion 2. Moreover, it discounts the
importance of the Senate Report, the key souroe of legislarive
history in this casc. We are oonoerned both with preserving the
integrity of Congressional Committee Reports and ensuring
that Section 2 of the Voring Righa Act is preserved as an
efective mechanism to ensure that people of all races will be
acmrded an equal opportunity to participate in the politicat
prooesses of this country and to elect representativcs of their
choice.

The accompanying brief undertakes a dctailed rcview of
thc languagc and legislative history of amendcd Section 2 of thc
Voting Rights Acr, issues that the parties will not address in the
same dctail. Thus, amici bclieve that the pcrcpective they bring
lo the issues in this case will materially aid the Court in
reaching its decision.

Members of the House of Representatives and Senate havc
participated as amici crrriae in numerous cases before this Court
involving issues affecting the legislative branch, both by morion,
e.g., United States v. Hektoski, 442 U.S. 477 ( t979), and
consent, e.g., National Organization for ll/omcn v. Idaho, 455
u.s. er8 ( 1982).

For the foregoing rcasons, amici respectfully request leave

to filc the accompanying amicus brief.

Respectfully submitted,

WerrEn J. Rocxun
(Counsel of Record)
Mrnr P. Grncsx
Brnnrne L. Arwru.

Anxolo & Ponrsn
1200 New Hampshire Ave., N.W.
Washington, D.C.20036

. Telephonc: (202) 872-6789

Attornq's for Amicl Curiac

Dated: August 30, 1985



No tlt96t

ln Tnr

#ryen:e @sufi of the tHniteb Ft"tn
Ocronrn Trnn, 1985

Lecv H. TnonNnuno, cl al.,
Appcllants,

v.

Rerpu GNcLEs, e, aL,
Appcllees.

ON APPEAL FROM THE
I'NITED STATES DISTRICT COURT

FOR THE EASTERN DISTUCT OF NORTH CAROLINA

BRIEF OF SBNATORS DENNIS DeCONCINI' ROBERT J.
poLE, CHARLES E GRASSLEY, EDWARD M" KEN-
NEITY, CHARLES McC MATHIAS, JR.,.AND HOWARD
M. METZENBAUM, AT{D REPRESENTATIVES DON ED.
WARDS, HAMILTON FISH, JR- PETER W. RODTNO,
JR., AFID F. JAMES SENSENBRENNER AS AMICI

CURIAE IN SUPPORT OF APPELLEES

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TABLE OF CONTENTS

STATEMENT OF INTEBEST .,....'.,.!........
SUMMARY OF ARGUMENT ....,."....

'--L - ib AssuME coMPLIANcE wITH sEc-
ifuN i uroN EvIDENCE oF soME- ELFq-
ib-RAt succEss BY MEMBEP's oF A MI-
NbRrrY cRouP vIoI-ATLs rHE LITERAL
itsoutREMENTS oF THAT PRovISIoN;
LVDetqcE oF soME ELECToRAL suc'
eEss Must BE vIEwED A"s PART oF THE;totetnY oF cIRcuMsrANcEs" To BE
coNSIDERED ...............

II. THN T.NCTSLATIVE HISTORY OF THE I9E2
ertrNDptENTs AND THE PRE'BaLDEN
CAsE LAw coNcLUsIvELY DEMoN-
sinem rHAT A vIoLATIoN oF sEcrIoN
i MAt sE, rouND ALTHoUcH MEMBERS
0F A MINoRTTY GRoUP HAvE Ex-
iinrENcrD LIMITED ELEcToRAL suc-
cEss i.."'....r.."
A: ftte Legislative Historlc The Majority

Statemeri-t in the Senate Report Specifi-
cally Providcs that Somc Minority -Gto'p
Eleitoral Success Does Not Preclude a

Section 2 Claim if Other Circumstances
Evidencc a Lack of Equal Acclss

B. Thc Maioritv StatemCnt in the Senate Re'
port Is a-n Accurate Statement of thc Intent
irf Congress with Regard to the 1982

Amendments .....-..-..
l. Thc Majority Starcmcnt in the Sen-

ate Report Piainly Reflects thc Intent
and Efect of the Lcgislation

2. As a Matter of Law, the MajoritY
Statement in dle Senate RcPort Is
Entitled to Great ResPect.....

IIL THE DISTRICT COURT,NPPROPRIATELY
LOOKED TO THE TOTALITY OF CIRCUM.
STANCES INCLUDING THE EVIDENCE OF
SOME BLACK ELECTORAL SUCCESS TO
DETERMINE WHETHER BLACKS HAD
EQUAL OPPORTUNIfi TO PARTICIPATE
IN THE' ,ELECTORAL' SYSTEM; THE
couRT DtD NOT REQUIRE PROPOR-
TIONAL REPRESENTATION...

coNcLUSION .....:....:.::.::..........:..i............".....

Er"

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5

l4

t5

20

23
30

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TABLE OF AUTHORTTIES

Cesrs
Beer v. (lnited States, 174 F. S.PP, 

-363 -(P'P-'q'-'igti't,-r;'i oi othei grounds,425 i"l.s. tlo ( 1976)

Chandlerv. Roudebush,425 U.S. 840 ( 1976)"""""""
Ciry Councit of Chicago v. Ketchum, t05.S' Ct' 2671

( less)......
City of Mobile v. Bolden,446 U.S' 55 ( 1980)

Garcia v. llnited States, 

-U.S..- 
105 S' Ct'

47e ( 1984)

Ginglcs v. Edmisten, 590 F. Supp' 345 (E'D'N'C'
le84).........

Grayes v. Bornes, 343 F. Supp' 704 (W'D' Tex'
re72 ).........

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

le74).........
Grove Ctty Collegc v. Bell, --U'S'..- 

t04 S' Ct'
l2l I ( 1984).........

Kirksey v. Board of Supcnisors, 554 F'2d 139 (sth"'6irj, ,-ri. i"ii"i,43a u.s. 968 ( 1977)

Maine v. Thiboutor,448 U.S. I ( t980), quoting TYA

McCain v. Lybrand, No. 74-28t (D'S'C' April l7'
1980)

McMitlan v. Escambia County,748 F'2d 1037 ( I lth
Cir. 1984).

Monterq Coal v. Federal Ming Sa[ety ^!' Health'--i"iiri 
Commission,743F.2d 589 (7th Cir' 1984) '

National Association of Greeting Card Publishcrs v''--iliilia 
siores Posral'semice,472 u's' 810 ( 1983)"

National Organizationfor Women v' Idaho' 455 U'S'
918 ( 1982) .....""""""';""""

North Haven Bd- of Education v' Bell,456 U'S' 512

( re82)......
Sperlins v. (lnired States, 1t1-f'?-d^465 (3d Cir'
--ibiSi, 

cert. denied,462 U.S. 919 ( 1976)

united States v. International lhnion of Automobile
Workers,352 U.S. 567 ( 1957)

iii '

Prao

Ilnited States v. Dallas County Comm'n, 739 F'2d

tlnited Statesv. Helstoski,442 U.S. 477 (1979't 2

Itnited Statesv. O'Brien,3gl U.S. 367 ( 1968) 20

llnited States ". 
Mor"ngo County Comm'n,731 F'2d

1546 ( ltth Cir.), cei. dqnied, U.S.-, 105

s. ct. izs ( l9s4)...... Passim

Yclasquez v. City of Abilene,725 F.2d l0l7 ( 5th Cir'
isr'at............:........... 7,10,20

Whitcombv. Chavis,403 U.S. 9t4 ( l97l )................... I I

Whitev. Regestcr,4l2 U.S. 755 ( 1973) passim

Zimmer v. McKeithen, 485 F.Zd 1297 (5th Cir.
1973), aff'd sub nom. East Canoll Parish School
Bd. v'.-MZrshall,424 U.S. 636 ( 1976) passim

Zuberv. Allen,396 U.S. 168 ( 1969) 2A

Srrrurrs
Voting Rights Act Amendments of 1982, Pub. L" No.

97-ios -................. passim

42 U.S. ! 1973 2

MrscsLt-rxrous
Voting Rights Act: Ilearings Belore the Subcomm. on

thiCoistitution of the Senatc Comm. on the fudi'

Voring Rights Aicr: Ilearings Bcforc the Subcomm. on
th;Co;sfitution of the Scnate Comm. on the Judi'
ciary,YoLI, 97th Cong., 2d Sess. ( 1982).......

Report of the Senate Judiciary 
-Committee 

on
S. 1992, S. Rep. No. 417, 97th Cong., 2d Sess.
( 1982)...............:...

Report of the House Committee on the Judiciary on
H.R. 3112, f-I.R. Rep. No. 227,97th Cong., lst
Sess. ( 1981) ................:........

128 Cong. Rec. il t 3g ( daily ed. June I 8, I 982 ) .........

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

128 Cong. Rec. 57095 (daily ed. Juire t8, 1982).......-.

1 5,16

ll

passim

9

.14

l9
l8

Prto

l3
20,21

l4
passim

20

passim

t2

t3

22

13,23

7

12

2A,24,
25,26

2l

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22

2l

20



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l9
l7

No.81'196E

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

128 Cong. Rec. 56995 (dailyed' June 17' 1982)""""'

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

r e82 ).........
128 Cong. Rec. 56960-62, 56993 (daily ed' June 17'

. 1982)...........:......- """"""""'
128 Cong. Rec. S694t-44, 56967 (daily ed' June 17'

r982 ).........
128 Cong. Rec. 6939-40 (daily ed' June 17' 1982)"""

128 Cong. Rec. 56930-34 (daily ed' June l7' 1982) "'
128 Cong. Req 56919-21 (daily ed' June l7' 1982) "'
128 Cong. Rec. 56781 (daity ed' June l5' 1982)""""'

128 Cong. Rec. 56780 (daity ed' June t5' 1982)""""'

128 Cong. Rec. 36646-48 (daily ed' June l0' 1982) "'
t28 Cong. Rec. 56553 (dailyed' June 9' 1982)"""""'

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

128 Cong. Rec. H3840-4t (daily ed' June 23' 1982) "

Frryr* 6.ourl sf the ]H"it b Fttu'
Ocronsn Tunu, 1985

Lrcv H. THonxnunq, el al.,
Appcllants,

v.

Rlrin GtNcLEs, et al.,
Appellccs-

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

BRIEF OF SENATORS DENNIS DcCONCINI, ROBERT J'
DOLq CHARLEST E. GRASSLEY, EDWAR.D M. KEN'
NEDY, CHARLESI McC. MATHIAS, JR., AND HOWARD
M. METZENBAUM, AI{D REPRESENTATIVES DON ED'
WARDS, HAMILTON FISH, JR., PETER W. RODINO'

JR- AIID F. JAIVIES SENSENBRENNER AS AMICI
CIIRIAE IN SUPPORT OF APPELLEES

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

Grassley, Edward M. Kennedy, Charles McC. Mathias, Jr', and

Howard M. Metzenbaum, and Represcntatives Don Edwards,

Hamilton Fish, Jr., Peter W. Rodino, Jr., and F' James

Sensenbrenner hercby appcar as amici curiae pursuant to the

motion filed herewith. .

STATEMENT OF INTEREST

This case prescnts an important hsue of interpreting the

Voting Rights Act Amendments of 1982, Pub. L. No. 97-205, as

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they pertain to Section 2 of the Voting Righs Acr' 42 U'S'C'

i igzi. As members of thc United States House of Representa-

tivesandSenate,amiciarevitallyinterestedinthiscase,which

-uia a","rmine whethcr Section 2 is to be preserved as an

efective mechanism to enlure that people of all races will. be

accorAea an equal opportunity to participate-in the political

f-ott"t of this countrv and in the election "lgT-::IY"t[i,t 
"it 

choicrc. fnis case also raiscs an important question of

the weight to be given congressional committee rcports by

which the intent underlying a statute is expressed'

Memben of the House of Representatives and Senatc have

p""iip"i"J as amici orriae in numerous cases before this Court

i;"il;g issues arecting the legislativ-e branch' both by motion'

c.g., United Sbtcs v.-Helstoiki, 442 U'S' 4?7 ( 1979)' and

oonsent, c.g., Notional Organizarion for Womcn v' Idaho' 455

u.s. et8 ( le82).

SUMMARY OF ARGUMENT

As thc authors and principal proponents 9{ the 1982

amendments to Section 2, our primary conoern in this case is to

"orur" 
that section 2 is intcrpreted and applied in a- manner

consistent with Coigress'intent' The Solicitor General and the

appcllants conteni-that the district @urt's finding that the

.[iri"ng"a multimember legislative districrs viblated section 2

,i-it"-voting nignt Act-..cannot be reconciled" with the

evidencc of some ,1""n, clectoral success by black candidates in

ino.e Aittticu. Brief for the United Statcs as Amicus Curiae 24'

28.

The three-judge district @urt, using the'totality of circum-

stances" analysis 
-maae 

relevant by Section 2' found blacks

were deniea 
"n "qu"iopportunity 

to parricipate in the political

;;;t i; ,he chailengJdistrics.on the basis of a widc varietv

of f"",oo. It considired the evidence of electoral success at

i"rtitt in its opinion, and found such succcsses to be "too

min.i-"tintotalnumbers''andof..toorecent''vintageto
support a ffnding that black candidates werc not disadvantaged

3,

becausc of thcir race ' Gilgles '" Ed^i"'n' 590 F' Supp' 345'

iiili.p.x.c. t984). eppeltans- and the Soticitor General, on

,tu otfr", hand, ascribini-definitive weight to a singlc f11or'

"rg* 
,frr, "3iven the lroven electoral suctess that black

liiaio",o hivc had .,ndtt thc multimember system"' no

;;i;ii"" of Section 2 can be estabtished. Brief for the united

States as Amicus Curiae 28'

The solicitor General and appcllants seemingly ask this

oourttorulethatevidenceofreccnt'andlimited'electoral
;;;-thoura u" prcclusive of a Section 2 claim' though

evidence of other facton overwhelmingly may compel a finding

ilili;ilare dcnied an equal opponunity to participate in the

p"fi,L"f proclss. This position is contrary to the erpress terms

Ii S"oloo 2, which rlquires a comprehensive and realistic

.o"iyri, of voting rigt ts'claims, and- it could raise an artiffcial

barrier to legitimaieilaims of dcnial of voting rights which in

ioi" *"yt would pos€ as signiftcant an impediment to the

enforcement of Section 2 as tf,e specific intent rule of City of

Mobite v. Bolden, aao u.s. 55 ( 1980), rejected by congress in

r982.

To assume that some electoral sucoess by some members of

a minority group' no matter how limited or incidental such

sucrcess may be, conclusively evidences an equal opportun-ity for

membersofthatgroup,-nf,'"'theoccasionalsuccessofblack
candidates with the statutory guarantee of an equal opportunity

forblackcitizenstoparticipateinthepoliticalProcessandto
clcct candidatc of ttreir ctroice' Experience' as documented by

iha pre-Botden casc law, proves that the systematic denial of

full and equal voting rights to blacks may be accompanied by

rhe sporadic succesi of **o blacks in primary or general

elections. As rhe courts have uniformly recognizcd' the vice of
the dehial of equgl voting righa to a minority group is not

obviated by such token or incidental successes of its members.

Most imponantly, the position advocated by the Solicitor

General and appcllants is inconsistent with the literal language

of Scction Z, ana was cxprclBsly rejected by Congress w-hen it

;,rrid;;.a ine 1982 amtndments, as is made clear in the



Report of the Senate Judiciary Committee on S' 1992' S' R'ep'

No. lt7, 97th Cong., 2d Sess. ( 1982) (hereinafter the "Senate

Report"). This Riport cannot be trcated as thc view of "one

faction in the oontrovcBy," as argued in the amicus bricf of the

Solicitor General ( Brief ior the United States as Amicus Curiae

8n.12),inthefaceofclearevidencethattheReportaccurately

"*pr"rr", 
the intent of Congress generally, and importantly of

thi authors of the 
"ompromite 

legislation that was rcported by

the Senate Judiciary iommittee and enacted' esscntially un-

changed, into law.

If this Court werc to discount the importance of the views

expressed in the Senate Report, it would have significance

iii"oa this particular case. A majority of the Judiciary

Committee sought to provide, in the Senate Report' a detailed

sutementofthepurposeandeffectofthelg82aimcndments.
That statement was relied upon by members of the Senate in

rpp.*iig the legislation, "od 
by members of the House in

"""upti"ithe 
senate bill as consistent with the House position.

rnis coun should noi cut the 1982 amendments free from their

legislative history, and adopt an interpretation of that legisla-

dJn inconsistent with the view of the congressional majority.

Todosowouldunderminefirmlyestablishedprinciplesof
interpretation of Acts of Congress, and sow confusion in the

lowei courts that are so ohen called upon to determine the

legislative intent of federal statutes'

The Voting Righs Act Amendmens of 1982 were in-

tended to reinstate fa--ir and effective standards for enforcing the

,igtrts of minority citizens so as to provide full and equal

pl'ii"ip",ion in thls nation's political and electoral processes' tn

iggz, bongr"r. had before it an extensive rccord showing that

muchhadbeenaccomplishedtowardsthisendsincctheVoting
nigntsActwasadoptedinlg65,butthatmuchmoreremained
to be done. In construing and applying Section 2' the Court

should be mindful of conlress, remedial goal to overcome the

various impedimentt to potitical participation by blacks and

other minoritY grouPs

5'

ARGUMENT

I. TO ASSUME COMPLIAI{CE WITH SECTION 2

UPON EVIDENCE OF SOME ELECTORAL SUCCESS

BY MEMBERS OF A MINORITY GROUP VIOIJ\TES
THE LITENAL REQUIREMENTS OF THAT PROVI.
SION; EVIDENCE OF SOME ELECTORAL SUCCESS

MUST BE VIEWED AS PART OF THE'TOTALITY
OF CIRCT'MSTANCES'' TO BE CONS-IDERED

Thc evidcnce of rcme electoral success by blacks in the

challenged districts in North carolina is not dispositive of a

Scction 2 claim, as is evident from the plain language of the

statute. r Scction 2 requires that claims brought thereunder be

analped on the basis of the "totality of circumstanc:es" present

I Wc mekc no efort hcrein to sterc the faos et irsuc in thir case in a
copplcrc menocr,. tlrcu3h wc do note thc ti6itcd nrture of blact eleOorel

ruccctt u prcscoted in thc districr court's frndings

Hourc Dirria No. 36 (Mcctlenbury couaty) and Semte Dlstrict No. 22

(Mccfienbur3 and Cebrmrs Couotier)-Orly rro blecl candldetcc hevc

won clcrrions in thir ccntury. Onc bleck yon e scat in the eiSht mcmber

Housc dclegation in l9t2 rftcr thir liri3atbn var filcd (running without whitc

opposirion in thc Democretic primrry), end onc scrvcd in the four-membcr

scnerc dclcgarion from 19?5-1980. Thit limitcd ruooEtt ir otrsct by frequcnt

etecrorel defeats. In Hourc DirrriA 36, revcn blact cendidatcr have tricd and

failcd ro win rau from 1965-19E2, rnd ia Scnrtc Distrid 22 bleck cendidates

hllcd in bidr for rcrtt in !9E0 and 1982. Blrctr comprisc rpprorimetely 25

pcrornt of the populrtion ln thcrc Dbtric6. 590 F. Supp. et 357. 365.

Housc Dirtria No. 39 ( pert of Fonyth County)-The fint blacl to scrvc

rr one of rhe f,vc-membcr detcgrrion ccrvcd from 1975-t97E. He rerigned in

1978 end hir eppointed iuoDelsor ran for reelection in l97t but sec defeated:

e bfict candidrte wg afuo dcfcated in 19t0. ln 19t2, eller this lidgation var
fftcd, tso blackt werc elecrcd rc thc Hourc. Thir pertern of clcttioo, followed

by dcfcrtr" mirron elcoioor for thc Borrd of County Commigiooers, in shich
rhe only black eleacd ras defcated in hcr fint reelecrion bid in 1980, end for
clcolonr to the Eoerd of Education, io which the ffrrt black clcaed gas

defertcd in his bidr for reelecrioa in 1978 rnd 19E0. Bhctr omprisc 25.1

pcracrt ofthc County'r populrtion. 590 F. Supp. at 357' 366.

Hourc Dirtrict No. !3 (Durhem Cognty)-Sincc 1973, one black hu
bcen elected to the thrcc-membcr delcgation. He feccd no white opposition

(fatnotc contiaucs)

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6

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

acctss to the process. The extent of past black efectoral succlss

is only one relevant circumstance'

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

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

on the totality of circumstances' it is shown that the

political processes leading to nomination or election

in the State or political iubdivision are not equally

op.o * participation by members of a class of

citizens p.ot""t.d by subsection (a) of this section in

that its members have less opportunity than other

members of.the electorate to panicipate in the-politi-

cal process and to elect representativcs of their

choice.Theextenttowhichmembersofaprotected
class have been elected to office in' the State or

po,tiii""t subdivision is one circumstance which may

Le considered: Provided,That nothing in this section

establishes a right to have members of a protected

class elected in;umbers equal to their.proponion in

the PoPulation."

This express siatutory provision clariffes that the "ertent to

which ,n.rn6"o of a proiected class have been elected to office

i. irr" s,"," o, potiiicat subdivision is one circumstancc which

;"til considered. ..." Obviously' other factors which com-

piJ" irr" ..totality of circumstances" surrounding the political

i*tt must also be considered' as they were bv the district

court in finding a violation of Section 2 hcre' Sea Section III'

(foonac contlnucd)

in the primrry in l98o or l9t2 and no subrtential oppocirioa in thc gencral

elcaioncirherofthoscycan.Blacksconstitu-te36.3percentofthcpopulation
oirt" *unty. 590 F. Supp' at 

'57,t66' 
370-71'

Housc Disrict No. 2l (Wake County)-The ffnt dme in this century a

btack candida," ,u"""r.fuiri ran for the sii-member dclegadon was in 1980'

That rame caooioarc iao'u""n defearcd in t978. Blacka ompricc 21.8

p"t*"i.i,ft" popularion of rhc county' 590 F' Supp' at 357' 366'-371'

Housc District No. E (Wi!son, Edgccomb and Narfr Counties)-No

black was cvcr elcctcd to scrvc from thir fiour-membcr dirtricr although it ir

fl.i p"ron, black in population' 590 F' Supp' et 357' 366' 371'

7,

infra.Electoralsuccessisarelevantcriterion,butnotthesote
oi dominant concern, as posited by the solicitor General.2

As will be shown below, the primary reason Congress

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

"f.rifying 
amendment by Senator Dole,-was to ensure that the

focus'of-the section 2 "resulB" standard would be on whether

there was equal opportunity to participate in the electoral

prooess.

The statutory language necessarily contemplates that a

Section 2 violation may be proven despite some minority

candidate electoral success. The focus on the "extent" of

,irrtiry group electoral sucoess contcmplates gradations of
,uorrr--iroir token or incidental victories to electoral domina-

tion-and makes clear that a violation of section 2 may be

pror"o in cases where some members of the group have been

elected to office, but the group nevertheless has been denied

a full-scale equal opportunity to participate in the political

process.s
'Becausesection2isplainonitsfacc,itshouldnotbe

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

Thiboutir,448 U.S. l, 6 n.4 ( 1980), quoting TVA v' Hill' 431

r The sollcitor ccncrrl sccms to 3ug86t that black clc'ctoral success in

rough proportion to lhc black proportion of the population should bc

pr"if*ir" of 
" 

S.oioo 2 claim. Brief for thc Unitcd Statcr ar Amicus Curiee

2+25. Atmosi, thil trSumcot apPGrE rqtcvant only to Houee Disrrict No' 23

lOurham County), 
"nd, 

in 8ny evcot' ir ptainly inconsictent with Congrcss'

clcarly srered inrint thar Seaion 2 c{aimr shoutd not depcnd upon the racc of

clccrci officiels. ScAion 2 scckr ro deflcd crcessivc @ncern with the racial or

cthnic idcnrity of individuel of,leholders and. instead, ro foc'us altention

rhcre ir propcrly belongc on rhc cxistcncc of an equal oppomrnity for

mcmbcrc of tiic minority group jo participate in the political process and to

clcct represcnutivcr of thcir choicc.
o donsistcnt sirh thir clear rtrtutory mentate, and the legisletivc hisrory

disclrscd bcloy, thc lowcr oourts which hevc coosidcred thir irsue elt heve

crpresly rejectcd rhe porition crpoused by rhc solicitor General and eppcl'

lana. llnitcd statcs v. Marcngo county commlq ?31 F.2d 1546, l57l-72
(llrh Cir.), cctr. dcntc4 

-U'S. 

i , 105 S' CL 3?5 (19t4) ("It is

iqually dear rhar rhe clccrion of one or a sm4l oumbcr of minority elcctcd

officielr will not oompel e ffodin3 of no dilution'"'l; l/clasqucz v' City ol
Abllcnc.725 F.2d tOl?, 1022 ( 5rh Cir. '19E4).



't

8

U.S. 153, 184 n.29 ( 1978)' Neverthelesst wc will examine that

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

intent of Congres, ,tt"t the extent of minority group electoral

,r""itt u" 
"nityoa 

as a part of the totality of circumstances

from which,o rn""*," tt'Jop"t'ntss of the challenged political

system to dinority t*tp pi"iciparion' Further' that history

provides an imponaiiin'Ai""tion-"f the manner in which such

analysis should U" uia"t'"ken, and supports the analysis and

conclusions of the court below'

II. THE LEGISI.ATIVE HISTORY OF THE 1982

AMENDMENTS IXO TU.E PRiE'BOLDEN CASE LAW

CONCLUSTVNiV DEMONSTRATE THAT A VIOI'A'

TION OT SEAION 2 MAY BE FOUND ALTHOUGH

MEMBERS OT I TVTNONITY CROUP HAVE EX'

PERIENCEO UNNITND ELECTORAL SUCCESS

A- The t egislatlve History: The Maiority Statement ln

the Senaie nepott Speclflcrlly Provldes thei 
-Some

Minorlly Crorr'p Electoral Success l)oes Noi Pre'

cludc a Seetlon 2 Clrtm lf Other Clrcumstances

Evldence r l,eck of Equal Access

The legislative history of the 1982 amendmenrc shows very

clearly that congress iiO not intend that limited electoral

success Uy a miooil-*oufa foreclose a Section 2 claim' This

intent is most praiJv 
"'i"A 

in the Senate Report' brlt a. similar

intent also is "ria"ii 
irrln it " 

House deliberations, the individ-

ual views or ,n"*L"o of the Senate Judiciary Committee

appended to the J;;;t; Report' and the floor debates in the

Senate.

The 1982 amendments originated in the House' which

initially determiJtn"t tt 
" 

Bolien intent test was unworkable,

and that it was';;;t;ty to evaluate voting rights claims

I

brought under Section 2 on the basis of "taln aggregate of

.ll;J,ir"-r""ors." I Report of the H-ouse Committee on the

ffi;iil on H.R. 3l12;H.R' Rep' No' 227' eTth Cong" lst

il. itt ( l98t ) (hereinafter the'iHouse Report")' As would

ir,"-s"""*, the House rejected the position that any single

;;;;i;tid u" dd,"tminative of a Section 2 claim' The House

til; noted that ..Ialll of thesb [describedl factors need-nor

;;;;; ; establish a section 2 violation 
"' 

Id' at 30' Thus'

;fi; ,h" House bill did not by its terms require thc consid-

*ioo of the "totality of circumstances"' that plainly was the

intent of the House.

The senate refined the House bill, and made explicit the

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

;;i*"riry of circumstances"' This refinement came about be-

cause of a @mpromise authored by Senator Dole and others'

ilimpo; of which will be addressed in detait bglo1. of
ir*"ai"to signiffcancc, though, is the fact that the Senate

Rcpo" explaLing this compromise expressly dealt with the

ilru" of the significancc of minority group elcctoral succ€ss to

i""tion 2 claims. Indeed, the intent of the Committee with

;;;"tJ to the handling of this factor was expressed more than

once.

The Senate Report includes, as one "typical factor" to

considerindeterminingwhetheraviolationhasbeenestab.
iiril;;"d"r scction 2, ..the extent to which members of the

,ni*ti,V group have been elected to public office in the

jurisaiciioi." Senate Report * 29' Additional important
-.orrn"n,"ry 

with regard to this factor is then provided:

"The fact that no members of a minority group have

been elected to officc over an extended period of time

r Rclevant fic:ton. drawn from the Coun's dccision in Whitc v' Rcgcstcr'

,ll2 u.s. 755 ( 1973), and iu Progcny iocluded "o history of discrimination

afrcaing thc right lo.veter racialti polarity [dcl voring which impcdcr thc

elcctiorioppononi,i", of minority lroup memberc, dkcriminetory clcmcnr of

ttre ctccrorit iystcm r,ch rs at'large etccdom, e meJority votc requircment' a

p-t iUi lon oi siay'c*hot vottng, rnd numbcred postr which 
-cnhrncc 

thc

[pg""r"i,y for diiriminerion, ind dirriminetory datin3 or the failurc of

minoritics io rin party nominetion." Housc Report 3O'

?:

I i..

,:r

a
._)

4



IU

is probative. However, the election of a few minority
candidates does not'necessarily foreclose the possi-

bility of dilution of the black vote,'in violation of this

section. Zimmcr 485 F.2d at 1307. If it did' the

possibility exists that the majority citizcns might
evade the section e.8., bY manipulating the elcction of
a'safe' minority candidate. 'Were we to hold that a

minority candidatc's suocess at the potls is conclusive

proof of a minority group's acce$ to the political
prooess, we would merely be inviting attempr to

"ir"umrent 
the Constitution. Instead we shall

continue to require an independent consideration of
the record.' Ibid.' Senate Report at 29 n.l 15. ( Ref-

erenoes'are to Zlmmer v. McKeithen, 485 F.zd 1297

(5th Cir. 1973), af'd sub nom. East Canoll Parish

School Bd. v. Marshall,424 U.S. 636 ( 1976).)

No clearer statement of the intent of thc Committee with regard

to rhis issue seems possible. 
'sec 

velasqucz v. city of Abilenc,

725 F.2d lol7, tO22 (5th Cir. 1984) ("In the Senate Report

.. . it was specifically noted that the mcre election of a few

minority candidates was nor sufficient to bar a ffnding of voting

dilution under the results test.").s

Further, this analysis, and its reliance on Zimmcr v'

McKeithen, 485 F.2d at 1307, is onsistent with the express

view of the committee that "Itlhe'results'standard is meant to

restore thc pre-Mobile legal standards which governed cases

r Thc Solicitor Gcnerel ruggcsB thet thk 3aslcmcnl indlcetcr that minor'

ity group cle.ctorel 3u@esr witl not dcfcat e ScAion 2 deim onty it it can bc

shoin rhat such ruoc'r ser thc result of rhe mejority "engineerin3 thc

etcction of r 'crfc' minority candidate." Brief for rhe Unitcd Statcr g Amiqg
curiac 24 n.49. Amici, r,ho wcre iare3rally involved in rridn3 the scnetc

Rcpon, view thir 3tlremcnt r! providin3 an eramplc which illustratcs why

$rmc su@qr3 rhould not be disposirive, not a h3at rule defininS the only

circumstancc whcre it ir not. Of courrc, thCrC rlc oumctr6u! othcr rersonr why

rcme clcdorat rucccss mftht not cvidencc an equelity of opportunity to

prrticiparc in the elcctorat procesr. For eramptc, as in thc instent clsc. thc

.Uitiay'ro rin3lc-shot voic in muttimembcr districrs mry produce some black

offceholders. but at rhe clpcrulc of dcnyin3 blacts the opporrunity to voie for

a ftrll slatc ofcandidares. Sac 590 F. Supp. at 369.

u

challenging election systems or practices as an illegal dilution of
thc minority vote. Specifically,.subsection (b) embodies the
test laid down by the Supreme Court in White lv. Regester,4l2
U.S. 755 ( 1973)1." Senate Report at27.o This reliance on pre-
Boldencase law iq important, for ii was firmly established under
that case law that a yoting rights violation could be established
even though members of the plaintiff minority group had
expcrienccd some electoral success within the challenged sys-
tem.

The Committee was acutely aware of this precedent.z
Indeed, in the case set by Congress as the polestar of Section 2
analysis- White v. Rcgcstcr-a voting rights denial was found
by this Court dcspite limited black and Hispanic electoral
success in thc challenged districts in Dallas and Bexar Counties
in Texas. Senate Report at 22.d

. Thcrc can bc no doubt rhat this war thc view of e Con3ressiond
mrjority er scll. Thur. io his eddiriood vicrr, Senebr Elolc remarked rhar
".he nes 3ub6ctrbn t2(b)l codific! rhe lcarl srenderd eniculncd in Whitev.
Rcgcstcr, a rrandrrd rhich war finr epplied by rhc Suprcme Courr in
Whitcomb v. Chais, end vhich wu subscqucnrly epplicd in somc 23 Fedcnl
Courr of Apperlr dccisiitns." Scolic Reporr et 194. Sentor Greslcy, in his
supphmentel vicrr, rimilrrly rcmertcd thal "thc ner languege of Sectbn 2 is
thc rert udlizcd by rhe Suprcmc Coun in lVhirc." Id- at l9l.

,The Seorre Repon rtares

"Whlt hu bccn rhe Judicial :racl reord under thc .rerutts rest?
Thet record received intcorive *rutiny durin3 thc Committee
heeriogr. The Committce revicged not oaly thc Suprcme C-oun
decisionr ia WhltccomD lftl aad lAhilc, bur elrc some 23
reported votc dituhoo cascs in which fedcral courrs of appeals.
prior ro 197t, followed Whltc."Seaatc Report at 32.

A lirt end rnelysir of thcsc 23 carct tppcsrt ln vottng Rights Act:
Hcarlngt Dctorc thc subcotttm. on thc coattltuttoa ol thc scnare comm. ol thc
tdtciory, Vol. I. 97th Con3., 2d S."i. 12 tG26 ( l9t2 ) ( hcrcinrller ..t Scnttc
Hcarinp") (eppcndir to,prcprrGd it tcment of Frrnl R. parlcr, direcror.
Voting Righr Projea, Lawyen'Commiuce for Civil Righa Uoder rhe Law).

t The Scnttc Rcpon cires the ponion of rhir Court,r opinion in Whirc v.
Rcgcstcr whercin it rer obrcrved thet "[rfincc Reconstnrctioo, only two
black crndidercr fmrn Dallu county had been etected ro rhe Texer Housc of
Rcprcrcntrtivcs, rnd thcrc two werc rhe only blecks ever rlarcd by rhc Delter
Commirtec for Rerponsiblc Government, whirc-dominered sletin3 group."

(latnotc contlaucs)

,.|
I i.,

j.:

*
t
q



t2

The Committee alrc expressly relied upon the:ti-1'"'-1 of

the Fifth Circuit cJ;;i ippeais in.Zimmer v' McKeithen'

which ir described 
"r--..iiil" 

seminal court of appcals

decision. . . subsequet& *ii;;. upon in the vast majority of

ncarly two dozcn *p""la dilution cases'" Senate Report N123'

ln Zimmer, tt e ci,IJit a; found inconclusive the fact that

three black candidates had won seats in the challcnged at-large

district sincc the int;';ti; of the suit' The Court reasoncd that

while the appellee ;;;;J that "the attendant suctess of three

black candidates, di;;; " 
nnAing that the at-large scheme did

not in fact dilute *t" [i""-r '"'" ' '] ' [wle cannoi endorse-thc

view that th" ,uc""'l oiUt"tf candidates at the polls necessarily

forectoses trre possiu'ility?iu"il". of the black vote." 485 F.2d

at t307.

Similarly, the Committee considered with approval a re-

oent case involving Edgefield 99'1ty' South Carolina' wherc

prior to Bolden";ti";";iltiviolation had been found' despite

limited black electorai"'t""' because "1bllack participadon

in Edgeftela co,"lvI;;; merely-tok"nitt and cven this

has been on 
" 

,"./rr*ir r""1".;' Micati v. Lybrand, No' 74-

(foanotc contlaucd)

412 U.S. tt 766i67 ' Thc dccirion of thc dirria court indicetcr thrt thc int of

rhcsc candidatc! ran'i"-ic6i' "'d 
that thcy- scre rclccrcd by rhe whitc-

dominatcd o"rl"' ctmmil ;;; n"'p"*iut" Government without thc

oarticipedon of rno UrJ"oimunity' 6rarcr v' Baracs' 343 F' Supp' 7O4'

izo (w.D. r"* w;i)'Fi";-;;; and ra'd tn part sub nom' whitc v'

Rcgista,4l2 U'S' 755 (1973)'

A rimitar poinl wrl 61{3 with rcsPcct to Hispeaic suooells in Bcrar

County, whcrc "[otnl, i"" ii""i*n-Amcricenr rincc it8o have scwed in the

Tcxar Lcaisla,o," *"'il;;rutd S ln"t"'only 
two vere from the

barrio arer.- lrl U'l"tlioi-c9'-Ti'" dirtrict oun indicercd that four of

thesc ive, wcre "foJ rncr tS6O' Grqtcs v' Barac$ 343 F' Supp' et 732'

Thc ffndingr in Whltc v' Rcgcstcrsaem-unrcmlrkablc until it ir rerlizcd

thet in the inruntcascil;;;Z' " 
u""rhowinS of bhck cleaorel tuooest

in alt of thc distridt h;;;;il" (ercepr Houccbir$icl No' 23)' ir bcing

relicd upoo ", -""iu-'i-* *iatnt" rhar no votint ri8h. violedon hrs

occrrrred.

l3

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

Report 26.e

Thereisabsolutelynoindicationinthelegislativehistory
that any membcr of either House of Congress thougtt that

ffi"*; or minority group electoral success should be pre-

;h;tr; of a Section 
-z 

"t"ir. 
The Solicitor General and

ipp"ri""" recite at some tength numerous statements to the

.fi"t ,f,"t Section 2 was not meant to require proportional

,rprliii",i.". This point is made on the face of the statute'

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

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

group's percentage of the population' However' the finding of

i- rii",i." of Slction 2 in the face of some minority group

"l"ctoral 
success does not depcnd upon a rule. requlnng

proportional representation' Rathcr, as the reasoning of the

Lurr below illultrates, the finding of a violation depends upon

,h" "rr..rtcnt 
of the "totality oi citcutttancts" to determine

whether members of the minority group have been denied, an

.qu"f 
"pp"rtunity 

to participate in the political prooe$r and to

rhrddidon.rhcreercothrr.prc.Doldcadccisioolofrimilerimportnot
spcanJfy aadrcrcd io the ScaetqReport or in thc froor debarcr' So' in one

;i,t* ,t rppcllate a".iti"* rtudhd by thc C;ommittcc' the Fillh Circuit

Court, rcjcctio3 e rcrpporrionmcnt plln ordersd by rhc dirtrict court bcclusc

lr ion rt" 
"tt"n}, 

for Utecf lucocts unlikely, nored itr ontinuin3 adherence to

theZtmmcrrulc:..gerddthccaveatthattheeleaionofbleckcandideres
JL no, ruometicelly mcen thlt bleck vodn3 rtrcn3th ir not minimizcd or

cancctcd out." ^(Ir&.rq v. Butd d lirqcniso'r,' 55'l F'2d 139' 149 n'2t (5th

Cit.l, ccrr. dcntcd,434 U.S. 96t ( 1977)'

ThL rulc of oommon rcilrc wrt respecred by the district ?uq -I"'
"r"-plo, 

in Gravcs 1, Boracs,3?E F' Supp' 641' 659-6t (W'D' Tcr' l97tl)'

rhc court oondudcd rhet rhc reccnr ctection of Hirpanicr to the Texae Housc

oinopr"r"n.rivcs end ro rhe school boerd did not frusrrarc r votinS rightl

claim.

Similarly,edictri{icourtrefuscdtnBccrv'llnitcdstotcs'374F'Supp'
363 ( D.D.C. t 9711, rcr'd oa orhct groundr,425 U'S' 130 ( 1976 )' to dcem rhc

a,v if X"- Orlceru to bc enrirledio prc-clearrncc undcr Scaion 5 dcspite a

,t-.io3 rhrr four blectr reccntly he(ron clectivc office in rhc municiprlity'

,tlrtrouth the Sccrion 5 rcrro3ressioo crenderd dlpn from the Scoion 2

sundeid, gccr it rclcvanr ro rhJcarc er hand in rhar rhe coun recognizcd that

il;;';iJ"r" tr"".,. cen bc rttriburrble 1o fac{ors orhcr than cqual

".."o 
io thc elcc-rorrl prcca$ by minority 3roup mcmben'

)

?.;..

il

i
r'll

#
3)



l4

elect representatives of their choice' The disproportionaliry of

minority group representation is' at most' one factor in the

analysis.

B. The Malority Statement in the Senqie Report ls an

Accurete Siit"*"'t of the Intenl of Congress rlth
Regard to the 1982 Amendments

The Solicitor General appears to believe that Congress

intended to adopt in 1982, the rule rejected in.Zimmer v'

iixeith"n' drawing from certain statements by amicus Senator

Dole and others tf,at Secrion 2 was not intended to requirc

proportional ,"pr"r"nt"tion, an inferencc that a Section 2 claim

is foreclosed wnereier limited electoral success is- thgwn' See

gri"f fo, the United States as Amicus Curiae I l-14'to

In making this argument, the Solicitor General also argues'

as he did io .nott.,-t"ccnt 
'appcal 

to this Court regarding a

Section 2 claim, c;; i;;"il of'chicago v' Ketchum' 105 S' Ct'

2673 (1985), that;te Se;"t" Rtpott is not detcrminative of the

intent of Congress, and attaches greater significance to the

individual views "i .ti"i 
Senators Dole and Grassley' and

Senator Hatch-rr i-ti"iftt the United States as Amicus Curiae'

ro Thc Solicitor General also cirer the Rcport of rhc Subcommirtcc on rhc

Coortitutbn ro tt 
" 
stnl" Coi'irt"t on rhc Judicisry on S' 1992'97th Con3''

2d Scss. ( 1982) t"sut=*iitic Rcporr';' Thc Subcommittce Rcport does

not rcflcct, nor doer f;;; to Ln*' the viess of the congrcrsional

majoriry who favored 'L-i"J"g 
the Boldcn inrent tert "{-:l1tt::i"t "

resulBicslld.at2o.Sl.ArthcrimethcsubcommittceRcportws!wnttcn'a
3-2 majority of thc Senarc Subcommittce upportcd cxisrin3 lew' a polirion

squercly rejcoed uy ti'" itril"iiirt"o ""a 
uv thc scnete as a wholc' The

Chairman of rhc SuuJt-itt"t-S"nator Orrin Herch-opposcd the Dole

oompromisc "na 
,or"a--iii the bill ultimately enac,ted- 

-only 
with 3rcet

rcluctancc, -ntlnuiniio ti"t"-'"'if thc flnrl.voie on thc bill his vicw "rhet

rhesc emcndm.no p-r]*-,, "r.a " 
a*,^"aive trensformedon in the vodnS

Rights Acr. . . .- 128 ;;; R"; 

"139-(dailv 

ed' Junc l8' 1982)' of the rour

orhcr mcmbcn or tc Suf,commirtee: scnaror srrom Thurmond opposcd thc

Dolc compromi.c: s"o"ro. chrrles Grasslcy supporred rh9 Sloromisc' 
and'

ar notcd U"for. 
",p'ooii "o"ato 

to thc-rnajority vicw of thc ScnareRcpon;

and Scnaron ponnit*d"i"i"ini and Patrick Lcahy obj6acd to thc con'

clusionr of thc Subcommittcc Report
rr Ar notcd i" tn" pt"*iing?*inot"' whilc Scnetor Hatch did uldmrtely

votc for rhc bill, r,c opii'oA tnJ Ootc compromisc in Committce and voiccd

opposition to it on thc floor of the Senarc'

l5

13 n.27. These efforts 8re mbguided on both factual'and legal

grounds.

t. The Maiorlty Statement ln the Senrte Report

Plainly heflects the Intent and Efrect of rhe

Lcglslatlon

To understand the significancc of thc majority view stated

in the Senate Report, "ia of the individual views of amici

S"n",ors Dole and Giassley' it is necessary to understand-the

nature and the genesis oi what is aptly termed the Dole

.ompromise. Th- purpose of the compromise was to clarify

,rt at stanaard should be used under the resuls test to ensure

that the amended Section 2 would not be interpreted by courts

io- r.qul." proportional representation' The bill originally

"a.p,ia 
uvirre House-H.it. rt tz-"ttempted to acrcomplish

this'with a disclaimcr that "[tthe fact that members of a

minority group have not been ilected in numbers equal to the

grorpt'pi"portion of the population shall not' in and of itsell'

inrii,u,. a.violarion of tlis section." In addition, the stated

purpor"oftheHousebillwastoreinstatethestandardsofpre''Botden 
case law, which was understood by the House not to

r.q"it" proportional representation' House Report at 29-30'

The House bill attracted immediate support in the Senate'

Senators Mathias and Kennedy introduced the House bill as

S. 1992, and enlisted the support of approximately two-thirds of

the members of the Senate as co-sponsors.t2 still, ccrtain

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

lingering doubts as to whether the language of the House bill

,ra, sufficient to foreclose the interpretation of the Voting

Rights Act as requiring proportional representation' To ame-

'ii
t'.

ir

:

rr lnitially s. 1992 had 6l G:o-3ponsoBi and by the time thc Scnate

Judiciary Commirtee pesscd upon the Dotc ompromisc' this number had

grown io 66. Thug, lt Scnetor f!'ole himsclf recognizcd in Commirrec

Jeliberations, "without any change the House bill would hrvc passed'"

Exccurive Scssion of rhe senere luaiciary committce. May 4. 19E2, reportcd

at vuing Rights Aa: Ilcarings bclorc thc subconm- on thc constitutioa of thc

scnatcboi^. oa,thc tudictary, vol. lI, gTth cong.. 2d Scss. 57 ( 1982)

( hcrcinatler "Il Senate Hcarings").



l6

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

iors Grassley, Keniedy and Mathias' among others 13-

;".;-p";J,h.,'s"",ioi-i1ul u" added to pick uR th3.;landard

enunciated by this Coun in White v' Regester' In addition' thc

Oir"i"i."t included in the House bill was strengthened to state

;;;;"dy that "nothing in this section establishes a right to have

members of a protec-t-JJ class el"ct"d in numbers equal to their

proportion of the PoPulation"'
As Senator Dole himself was careful to emphasizo' 'the

compromise was consi'tent with the Section 2 amendments

passed by the Hort".il As Senator Joseph Biden explained in

the Committ." a"i"ie over the Dole compromise' "What it

does Iisl, it ctarinei *'t'at everyone intended to be the situation

from the outset." Lit"uti'" iession of the Senate Judiciary

Committee, May 4,198', reported at II Senate Hearings 68' In

introducing S. 1992 on til" hoor' Senator Mathias also termed

the Committee acti;;; oise"tion 2 "clarifying am-endmcnt[ s l "

which "are consit*nt *ittt ttt" basic thnrst of S' 1992 as

introduced "na "r"-t.rpr"i 
in clarifying the basic-meanirrg of

the propos"d "-"nd-"i*t.'' 
128 ConL' Rec' 56942' 56944

(daily ed. June 17, 1982)'t3

rr Scneror Dolc cxlaincd that hc "alonS vith lamicil T-o"l1'! DcCon'

cini, Gras-rley, x"oo"i-y, and Mcrzcnbeum end 3"n"rot Mathier ' ' ' hrd

workcd out e comproti'" on [Sccdon 2l'" Id' rt 58'

t' Thus, Scnaior ooi" 
"'it"in"d 

thc proposcd compromisc ar followc

"ITlhc compromisc retainc thc relulr rtandrrds of rhe

Mathies/Kcn""iy-luf' Ho*"'"'' we rlso feel thar thc legislation

rhould be *."n-g,i""ra wirh addirionel tanSuage delineedng

whar legat 
""ti"ta- 

ti"uld apply under the resutr tcat rnd

clarifyin3 tt "r 
iiir not e mandaic for propordonel rcPrcsc-nterion'

Thul. our -.pttit"1ddt " 
n"* subsccion to ceclion 2' which

codificd r"ngu"g"-'iroi thc 1973 Supremc Coun dccision of

Whirc v. n"gi"i'Exccurivc Scs'rion of the Scnate Judiciary

Committec, M";4' 1982' reported at II Scnate Hcarin8s' 6o'

scc arso lrnited statcs v. Marcngo county commh,Trr F. 2d 1546..1565 n'30

( I lth Cir. ), ccrt. dcntlcd, 

--U'S' 

--.- ' 105 S' Cr' 375 ( 1984)'

rr A cimilar understanding of thc Scnate bill was crprescd on thc f,oor

of the Housc tv n"p**tt"il-'" oon Edwards' Chairman of thc Subcom-

mirree on civil end toii irurion"l Rightr of thc House committcc on the

Judiciar,: 
(foanotc continucs)

l7

The authors of the compromise-in particular amici sena-

tors Dole and Grassley-did not perceive it as inconsistent with

the majority view of the proposed legislation' Indeed' in

additional commenB to the senate Report, both amici senators

boi" 
"oa 

Grassley clearly stated ihat they thought the majoriry

starement to be accurate. Thus, Senator Dole prefaced his

additional views with the comment that "[tlhe Committee

Report is an accurate statement of the intent of S' 1992' as

,eponea by the Committee." ro Senate Report at 193' And

Senator Grassley prefaced his views with the cautionary remark

that "I express my views not to take issue with the body of the

Report." S.n"," R.pott at 196. So that there could be no doubt

as io his position, he later added that "l concur with the

inrerpretation of this action in the Committee Report.l' Senate

Report at 199. Moreover, the individual views expressed by

both these senators were in complete accord with the majority

statement. l7

(footnotc continucd)

"Besically. thc amendmenu to H.R' 3l 12 would ' ' ' clarify the

basic inrent of the sccrion 2 amendmcnt edoptcd prcviously by

thc Housc.

"Thcsc memberr I thc sponrcrr of the Senatc compromisc I were

abtc to miintain the bacic integrity rnd inrent of the House-

passcd bill while at rhc remc dme finding language which more

itrcctivcly addresscs thc conccrn that the resultl test would lcsd

to proporriooal reprcscntedon in,every jurisdictbn throughout

the-country and which delincatcr more spccifically the lega!

rrandard to be uscd undcr scction 2." 128 Con3' Rec' H38ztO'

3E4l (daily cd. June 23. l9E2).
r. Ar senlror Dole rtared in hir addirionrl vicws. his primery purpose in

ofrcring rhe compromirc was to allay fear! about proponional rcprescntation

and thireby scc.re rhc overwhelming bipertisen 3upport he thought the bill

dcscrved. For thir rc.son, his commcnts primarily wGrG oonoemcd with

srressing the intent of the Commirtce that the rcsulg test and thc standard of
lVhitc v. Rcgcttc? rhoutd not bc onrrnrcd to requirc proponionel trPrcsBnla'

rion. Scnate Rcporr at 193-94. This in no w8y tut8c3tt that hc disagreed with

the viess cxprescd in thc maJority report, for thet rcport rlso wcnt to Srcst

pains ro crplain rhrr ncithcr rhc resutts to't nor the standard of Whitc v.
-Regcstcr 

implicd a gqeranrce of proponional represcntation. senate Rcpon

.t lo-lt. A dirclaimcr to rhc same cfrecr appcan, of courrc, on thc facc of rhc

rtalulc.
t, senator Dolc objccted to cfforts by opponcnu to redcllnc the inrenr of

rhc t982 rmendmcnB on rhe floor ofrhb Scnate. scc 128 Con3. Rec. 56553

(daily cd. lunc 9, !9E2).

l?:

j.:

'n

v



l8

Both proponents and opponents of S' 1992 recognizcd in

the floor debates trt. Jgiiniance of the majority statement in

the Committee Report is an explanadon of the bill's purpose'

;;, .;.ry;; in the-debates senator Kennedy noted that:

"Those provisions, and the ihterpretatioh of those

provisions, 
"ro 'p"il"d 

out as clead{ l"d: t t-1t11'-"1

well as any committee report that I have seen m a

long time in this bodY'

"l have spent a good deal of time-personally on this

,"poa, "na 
t ttrink it is a superb commentary on

exactly what this legislation is about'

"In short, what this legislative report poin-ts o-u.t.it

who won 
"na 

*t'o tost o-n this issuc' There should be

no confusion for future generations as to what thc

intention of tn" i"igu"gJo'"' for those who carried

the day." f Zg Coig;' R-ec' 56553 (daily cd' June 9'

1982 )' rs

rt Scnetor Kennedy recmphasizcd this point e week letcn

"If there ir any qucstiton about thc meanin3 of thc lenju-age' we

urge the judger ;;;J thc report for irr meanint or to listen to

thoscwhowcrclhcprincipalsPonrx,Bofthcproporel,notto
;;;..'li" r"'cl'i egeinst thc proposat 16d *ho havc tn

entirelv oir.rent-iltfiJ*rt"' a votn3 Riihu Act should bG.''

128 Cong. Rcc. 56?80 (daily cd' func t5' 1982)'

An admonirion which Scnstor Dole hcertily cchocd:

"I join the Scnator from Massachuscrc in thc hopc that whcn the

iudger look 
"t 

ti-" rt,ti"ii'i hi"otv' rhcv will look et ll5 tho

supponcd 'lg"tJi ""d cnthuciasticatly the so-cellcd com'

Promisc."

128 Cong. Rec. 56781 (daily cd' Junc 15' 1982)'

Scnaror Kcnnc{y later rcmarked to the samc cfrcct:

"Fonunetely, I will not have ro bc cxhaustive bccaurc thc Scnrte

Judiciary Ctt"il; icport' Prcscnterl by Scnator t{athiar' was

an cxcellcnt "-p"'i'l"i "ithe 
inrcndcd mianin3 and opcration of

the bill."
l2E Cong. Rec' 57095 (deily ed' June 18' t982)'

l9

Thus, the proponens of the tegislation, including Senators

Dole,rs Grassley,2o DeConcini,2r Mathias,22 and Kennedy'23

repeatedly poinid their colleagues to the majority statement of
the senate Report for an explanation of the legislation. con-

versely, opponents of the compromisc,2l ot proponents of
particuiar ahendmensrzs 1oo*"0 to the majority statement of
ih, S"n"r" Report as a basis for their individual criticisms of the

bill. At no point in the debates did any senator claim that the

majority statement of the senate Report was inaccurate, or that

it i.pr"sented the peculiar views of "one faction in the con-

troversy.i'

Respect for the majority statement of the Senate Report

carried ro rhe floor'of the House during the abbreviated debate

on rhe Senate bill. Thus, amicus Representative F. James

Sensenbrenner explained to his colleagues:

"First, addressing the amendment to section 2, which

incorporates the 'results' test in place of the 'intent'
test sit out in the plurality opinion in Mobile against

Botden, thcre is an extensive discussion of how this

test is to be applied in the Senate committee report"'
128 Cong. Rec. H3841 (daily ed. June 23' 1982)'

Again, there is no suggestion by any mcmber of the House that

the majority statcment in the Senate Report was less than an

accurate statement of the intent of Congress with regard to the

biil.

I -'.

+;

{

o l2t Cong. Rcc. 56960-62' 56993 (daily cd. Junc 17. 1982)'
20 128 Con8. Rcc. 36646-18 (deily ed. June l0' l9E2).
er l2t Con& Rcc' 56930'34 (deily ed. June 17' l9t2).
22 128 Coo8. Rcc. S6941-f4, 55967 (daily ed. Junc 17, 1982).
ar l2t Cong. Rcc. 56995 (daily ed. Junc 17, l9E2); 57095'96 (Junc 18'

re82 ).
2' 128 Cong. Rcc. 56919'21, 56939-40 (daily ed- June 17, 1982); S7O9l-

92 (Junc lt. 1982).
2! l2t Cong. Rcc. 56991, 56993 (daily ed. June 17, l9t2)' Thc

amendmcnt ofrcred by Scnator Stevens is prnictlerly notewonhy-ir coa'

cerned rhe epplicarion of the srandardr of scction 2(b) in prc-clearancc

cascs-bcclusc hc leigcly rcught to justify ir on the basir of r consistent

statemcnt in thc Scnatc Rcport.



20

L As r Metter of Law, the Maiorlty Siatement in

thc Senate Report ls Entltled to Grert Respect

Under fundamental tenets of statutory construction, com-

mittee Reports are accorded the greatest weight as the views of

the Committee and of Congress as a whole'

In the preicding term, this Court reaffirmed the long-

established irinciple that committee reports are the author-

itative guide to congressional intent:26

"[n surveying legislative history we have repeatedly

stated that the authoritative source for finding the

legislature's intent lies in the Committee reports on

th; bill, which'represent t I the considered and

collective understanding of thosc Congressmen in-

volved in drafting and studying proposed legislation"

Zuber v. Allen,396 U.S. 168, 186 ( 1969)'"

Garcia v. IJnited States, 

-U.S.- 
105 S' Ct' 479' 483

iigeal; accord Chandler v. Roudebush' 425 U'S' 84o' 859 n'36

irqzOi; Zuber v. Allcn, 396 U.S' 168, 186 ( 1969); United

iror"r'r. O'Brien,39t U-S. 367, 385 ( t968); United States v'

International (Jnion of Auromobile Workers,352 U'S' 567' 585

(1957).TheGarciaCourtalsoreiteratedtheprinciplethat
committee reports provide "more authoritative" evidence of

con gressional purpoie than statemenc by individual l:qi:l"lors'
Gaicia,lO5 S. Ct. at 483; llnited Statesv' O'Brien' 39t U'S' at

385: cf. Ilnired Srates v. Automobile Workers' 352 U'S' at 585'

In light of these well-established principles' the effort to

unrlermini the value of the Committee Report as a guide to

legislative intent by citation to statements made during floor

dJbates is misguidld. Committee reports are "more author-

irarive,, than sratements by individual tegislators, regardless of

.. consisrent wirh thir longsranding principle, the scnate Rcpon hes

been thc aurhoriredve sourcc of lcgistadve hisory relied on by courts

ir,t"rprcring rhe 1982 Voting RiShrs Aa Amendrncnu ' Scc' c'g" McVillan v'

Escimbia-c*nry,74s F.2i toiz ( r lth Cir' 19841:' llnltcd statcs v' Dallas

counry conm,n.73g F.2d l52g ( I lrh cir. lggllz llnttcd statcs v. Marcngo

CountyComm,n,73tF.2d1546(llthCir.)'ccrt.dcnic{_U.s._it05S.
Cr. fiS ( 1984); Yclasqucz v. Citv of Abilenc,725 F'2d l0l7 ( 5rh Cir' 1984)'

2t

the fact that the individual legislator is a sponsor or floor
manager of the blll. .Sea National Association of Greeting Card

Publishersv. lJnited States Postal Semice,462 U.S. El0' E32-33

n.28 ( 1983); Chandler v. Roudebush, 425 U.S. at 859 n.36;

Monrerqr Coal v. Federal Mine Safety li. Heakh Review Com'

mission, 743 F.2d 589, 596-98 (7th Cir. 1984); Sperling v.

united states,5i5 F.2d 465, 480 (3d cir. 1975), cert. denied,

462 U.S. 919 (1976.).27

The basis for this rule is quitc simple, for to give con-

trolting effect to any legislator's remarks in contradiction of a
commiilee report "would be to run too great a risk of per-

mitting one member to override the intent of Congress. . . ."
Monterqt Coal v. Fed. Mine Safety tk Health Review,743 F.2d
at 598. The rule also reflecs the traditions and practicres of
both Houses of Congress, in which members customarily rely
on the report of the committee of jurisdiction to provide an

authoritative explanation of the purposc and intent of legisla-
tion before any floor consideration begins. For example, the

Senate Rules forbid the con'sideration of "any matter or
measurc reported by any standing committee . . . unless the
report of that committee upon that matter or measure has been

available io members for at least three calendar days . ' . prior
to the consideration . . . ." Rule XVII, para. 5, Standing Rules
of the Senate. In this way, each member has the opportunity to
examine not only the text of proposed legislation, but also the
explanation and justiffcation for it, well in advance of any vote
on the bill. By contrast, the vast majority of members may be

completely unaware of the @ntent of a statement made during

21 lo National Assxiation ol Grccting Card Publtshcrs, thc Court rulcd
that a statcmcnt by tho floor managerr of a bill. appcndcd lo the conferencc
commiticc repon, lackcd "the rlatus of a onferencc rcPon, or cven a rcport
of a single Housc avrilablc to both Houscg." 462 U.S. at 832 n.28. Thc Court
in Chandlcr v. Roudcbush held a committoe rcport to be "more probative of
congrcssional intcnt" than a statement by Senator Williams. the sponsor of
the lcgislation. 425 U.S. at 859 n.36. la Montcrq Cml.the court notcd that
thc sponsor's itatemcnu "are the only mention in the legisletive history of thc
spccific issue bcfore w.n Nontcr4t Cul v. Fcd. Minc Salcty iL Ecalth Rcvicw,
743 F.2d at 596. Neverthclec!, bcc.use the sponsor'r position was not "ctearly
supportcd by thc confcrencc committcc rcpon," thc oun declined to give thc
sponsor'3 rcmarkg cootrolling wei3ht. 711 F.2d et 598.

?.

,.



22

floor debates. It is impossible to determine from the official

record of congressional proceedings whether a given member,

or a majority or any particular number of membeni' was

present when a certain statement was made. It is even

",rstom"ry 
for statements to be delivered orally only in part,

wirh the balance printed in the congressional Record "as if
read." Given these facts, well known to amici from their

decades of experience in both Houses, there is little basis for

concluding that any given statement made in floor debate

accurately states the intent of any member other than the one

who made it.za

Furrhermore, the "compromise character" of the 1982

amendments does not detract from the validity of the majority
views. Here the proponents of the compromise wording

expressly agreed with the majority views and viewed the

2r Thc cases cired by the soliciror Gcncral in ruppon of rhe efforr to

amplify rhe starcmcnr,r of individuat scnato6 aod disparagc the signifrcance of
the Scnatc Repon, are inaPPoritc.

ln Nonh llavcn Bd. of Educationv. Bell, '156 U.S. 512 ( 1982)' the Court

noted rhar "thc stalcmcn6 of onc legislator madc during dcbatc may not be

controlling," but iodicated that statemenr medc by Scnator Bryh, a spoilror

of rhc lcjslarion, wcre "thc only authoriradve indicrtionr of congressional

inrenr regarding rhc scopc of !! sl and 902" of Titlc IX, because l! 9ol and

g02 originatcd as a f,oor amendmenl and no committec rcport discussed

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

Thc other casc circd by ihe Solicitor Gencral, Grotc City Collegc v. Dcll,

- 
U.S. 

- 
lO4 S. Ct. l2ll ( 1984), also involved an intcrprctation of Titlc

lX. Thc coun in Grovc clry again rccognizcd thet "stalemcnt! by individual

legislarorr should not bc givcn controlling cffect," but citcd North Havcn to

support its posidon fhal "Sen. Bayh's rcmarks atc 'an eurhoritative guide to

rhi staturc'sconstruction.'' 104 S. Cl ar 12t9. The Coun indicarcd that Sen.

Bayh's remarkr wcre authorirative only to thc extent that thcy were onsistcnt
with rhc tanguage of the statute and thc legisladve history' Id'

Thus, /voai llavcn end Grovc ciry anccrn thc significancc of a sponsor's

expresscd vicws in thc abscocc of a relevani stalcmcnt in a committec rcport'

Hcrc, in markcd contrasq the solicior General draws an unwarrantcd

inferencc that eleooral 3ugoe$ might prcclude a Scction 2 claim from Scnator

Dole's cxprcsscd desire to avoid a requirement of proporrional represcntedon.

and rhen asscns thai inference as supcrior to sn GIPness slatemcnt to the

oontrary in the Scnate RePort.

23

compromise wording as merely a clarification of the intent of
Congress.ze Ih these circumstances, there is no reason to

conctude that the Committee Report, prepared after adoption
of the compromise, and accepted by all as an accurate ex-
planation of it, loses its status as the most authoritative guide to
legislative intent.

III. THE DTSTRICT COURT APPROPRIATELY LOOKED
TO TTIE TOTALITY OF CIRCUMSTANCES IN.
CLUDTNG THE EVIDENCE OF SOME BI.ACK ELEC-
TORAL SUCCESS TO DETERMINE WHETHER
BLACKS HAD EQUAL OPPORTUNITY TO PARTICT.
PATE IN THE ELECTORAL SYSTEM; THE COURT
DID NOT REQUIRE PROPORTIONAL REPRE.
SENTATION

At bottom, the argument of the Solicitor General and
appellants, that limited electoral success by members of a

minority group should be conclusive evidence that the group
enjoys an equal opportunity to participate, rests on the claim
that such a rule is implicit in the disclaimer that Section 2 does
not provide a minority group the right to proportional repre-
sentation. All parties agree that Section 2 was not intended by
Congress to provide a right to proportional representation-but
that point has no significance to the immediate issue.

As the pre-Bolden case law discussed previously illustrates,
the trier of fact may find a denial of equal voting opportunity
where, despite evidence of some minority group electoral
success, evidence of other historical, social and political factors
indicates such a denial. See, e.9., lUhite v. Regester,4l2 U.S.
755 ( 1973 ); Kirksey v. Board of Supemisors, 554 F.2d 139 ( 5th
Cit.l, cert. denied,434 U.S. 968 ( 1977)i Zimmer v. McKeithen,
485 F.2d 1291 (Sth Cir. 1973), af'd sub nom. East Carroll
Parish School Bd. v. Marshall,424 U.S. 636. Such a finding in
no way implies or necessitates that Section 2 be applied as a
guarantee of proportional representation. The "dispropor-
tionality" of minority group representation is not the gravamen

2e ,Sca tcxt and notes accompanying nn.l$17, supra.



24

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

rather, it is the *nnutnt" of factors which indicates that an

fi; ; ilr" * I il ff [ ll"',:JH,T::';i "',',:f 
;#tJ:

elect rePresentatrves

of the group'so 
rlation of Section 2 has-' 

irioraer to determine whether a vit

occurred' courts "* 
iil;";iJ"' *tt"trt"'' gi'"tt the "totality of

;;-J;;;"*:_T3i::i ;;li;':i".'j::.l?;i,T::,:';:l
lJ:1":1":?T[:ll.o*xfi 

",d1'-::1",:],u.':.'l'"?pinion'the

district "ou. "o*J'Ji"tit"ake- 
jusi the sort of "totality of

circumstanc.r,, .n"iii. ilil challe-nged state legislative dis-

tricts as i, ,"quitelU ;il; l.^ I fact' the district @urt'

quoting the senate'Rl;;;; ?8'22""t 
io*it the nine so-called

,, Timm€t,,factors *iiJi r", ue retevant in determining wheth-

er a section z 
"iorltio 

';;;;;tstabiished' and proceeded to

rnalyzetno'" f""to"' 590 F' Supp' at 354'

The court ,,*J ,n", i, fgund. a high degree of.racially

polarized or bloc ffit;:;t tt'* in "iiiistrics 
a majoritv of

the white voters nl"i "*d 
for.any Lucr candidate' Tl"

exisrence or ,""iriii'r"r""*a .rorin_g 
is a significant factor tn

iL"r*i'i'g*t'"tt'1"'o-*gillti"'':li;;n1'.::tTyr;l:;;;,ff"
il:'i;A;ultimember districts are t

oo Ar the Solicitor Ccncral himsclf poinu our' '[elmcndcd Secdon

2 . . . rocuser "o, 
oo ri","'*;il; "t"i':1,i:;* 

tlt"Tilll,:'';:*#iJ,

"r;.r';-tJ; 
thc risht to equal 'opporturutv-' 'l'iil""i,ili. ,0. ionsto*

,#*'- l" Brici ror rhc unired s:::::Jilli"'uJ*i"i 
cicction rcsutr

[.ia-".t have bceo more clcer in erpresstng

alonc should *t o" i*"ttl"idve oi e Sccdon 2 clrim'

c, wc do -, .1$:l [i|,:]::JffIJT:ItffTi':" ;:: [:
minoritv candid-rtcs' EJ::--:,:' [t;:;:;;" t"l"'i.v of white vs166 will

,'f"'"",iia"" of hir. or hcr choicc' t!-I:::;.,"ncc. 
and lerge multtmcmbcr

ti:;**,1","-rT{,'"".1.:$iir:[t$x*ll*^ilH;""::
**Io[tJi'::#:i:'ill".,:'T:[T;;'';i""r"endid*erinthcracc
l'i,-r,"-i"i"ity'ttir" opposition'

Bccausc or iaio'vn"*'ies that 
'-"1 T.ffj[:::T:i[l*ff'fi:::

'*:llj[*:-1] ::#i;" $lLffi :ffi ;:.' 6i'-"* r.'-'his rcason'

black succesr " " 
tr""" "ni"ion' "'"n 

*iif i'" whirc rupport' canoot be

dctcrmioative'

,l)

v. Escambia county, T4g F.2d 1037_(5rh cir. 1984); llnlted

stares v. Dallas c"'^il'^l'xiio'' il9 F'2d 1529 ( I lth cir'

1984); united stot"'-'u'- iorengo c?y\* Comm'n' 131 F'zd

1546 (llth cir. 7, 'i't' ;;';i': 
Us'- 105 s' ct' 375

( 1984). This Uricf aoes not contend that all at-large'

multimember districts should be suspca or subject to challenge

under Section 2' n"ti"i' tt" district court acknowledged that

"a muldmemu"' af,t'i-"t Jo"t oot alone establish that vote

dilution r,", ,".uttta,1:'iq0 F' Jlqp' at 355' but found that large

'multimember districts 
"tong 

wiih severe racial polarization in

voting and'other f*;; ;;tbined here to create such dilu-

tion.32

The district court stated further that it found a history of

official discriminat;; "t"i;tt 
blacks..in voting matters-in-

cluding the use "f 
;;cli;u"rt "t " ryll tax' a literacy test' and

an anti-single-shot ;;;i;; i"t-*tti"l^l"d continuing effect to

depress blacr voter"t"ii*"ti"t' :T F' Supp' at 359-61'

Although *,e ai'ri"t'"i'" l"rnow-redqe-! that 
.these- -devices

were no longer trn;;*o ;; trte 1"ay 
l-g?os' it also recognized

that rheir "*irt.n"J-ioI' 
ou"t half a c€ntury has had a lasting

impacr. Id. at liti' 
' 
ihi t"'ting -impact 

of historical dis-

crimination on tr'J"p'"tt*-a"v "6uity 
to participate 

-in- 
the

;i;;i;;"i process has also been recognized in other recent cases'

cf. uniteds,a,es ;'" i;;';;; Co'nfi .co^m'n'731 
F'2d at 1567

("[Plast aiscrimination "1" 
seveiely impair the present-day

ability of minoriti"t 
-io 

p"nitipate on an equal footing in the

political p.o""r,."ii i'iiiito"'v' Escambia Countv' 748 F'2d at

1043-44.

The district court decision rests' in part' onrhe-fact that this

history of official lL"Jii"",ion is still relativelv close in terms

of time. m" *u'inJiiJtt'"t a "good faith" effort is now being

ra Thc Solicitor 
'Gcneral 

mircharaaerizcl

suggesring ,rr", i, flnpio'p"r-v i"nnta oa"rly^oolerizcd vodng to erist whcre

more than so p","onioi'"'iiia "na 
btackc voti for a differenr cendidete' Thc

disrria coun's findin;';i';;;;it; *t""-1 votin3 insrerd wrs bascd on

exrcnsivc cxpcn tcati;onv "'rti"ft 
i"blishcd that a mejority of whirc vorcrs

witl not vore for ""r;'t"#;:;;il;;t' 
rrtrt sas the casc cvcn whcn blacls

ran for officc unoPPoscd'

?i

llv
4

t:

I

i



26

made by the responsible state agency to remedy the effects of

;il;tit"ination' Thc court observed:

... . . . If continued on a sustained qitit :-'^"-:-:
sufficient p"tii' th" effort might succeed in removtng

the disparity inLgitti"tion *hi"h.turvives as a legacy

of the tong p"'io-ioiJit""' denial and chilling by the

state of '"gi"'liJn 
iv-Lr""rt citizens' But at the

present tit" tft" g"f n"' not been c{osed:'iTd t^"i'"'it
of course no gtt"?""tee that the effort will be connn-

ued past the-end of the present statc adminis-

i*iot."' 590 F' SuPP' at 361'

The court below also recognized as significant the majority

vote requirement ;;;';;ffih-cloilna in primarics' cf'

Zimmer,48s F'2d-"i tlOS' Because-of the historical domina-

tion of the Democffi;;; h loc.al races' this majority vote

requiremen, in p'i''"'i"J'uu""nti"lly impcded minority voters

from electing tuoaii"ilt "r 
tn"it ctroice' 59o F' SuPp' at'363'

Recent cases whi#t"'" *ttiaer-e! -lmended 
Section 2 have

reached similar;"il;-"; ' ii' u:Mlttanv' Escambia CounU'

supra,748 F.2d "J'id 
('tei mafriw vote is required during

the primary in "t' "I";i;;; 
tne o"mo"ratic Party is domi-

nant. 'This r'"to'' il;t; ii-in"ot ol-a ftnding of dilution'");

united srarcs ". ootiil iounty comm,ission, supra, ?39 F'2d at

1536 ("tTln" *o*"J';"t tf " Lajority in the primary plus the

sisnificance "f 
t#;;;;;"ti" pri*"ry combined to'weigh[ |

in favor of " nnii"g-of aitt"ion" ""')t llnitcd States v'

Marengo countv'i"'^7'i"i73I F'2d "''iszo 11.:,T::"t It
vote dilution is "enhanced" by a majority vote requiremcnt ln

the PrimarY)'

The district @urt found that "[flrom'the' Reco-nstructton

era ro the prerunfi*", "pp""t' 
.o "a"t 

prejudicc against black

citizens t "'" 
u"#"ilil;l' used bv p"i'ont' eittrl:lfidates

or theircuo*tto]'"-' "'""nt-of 
infl'en"ing voters in North

Carolina poriti""i"cailp"ignt.''590 F' Supp' at 364'

Moreover, the racial appe-als "have tended to be most

overt and ur","n,-in1ior" p"rioa, when bracks were openly

assening politiJ 
'"nJ ti'if rights"' fd' The district court

r"' 
27

concluded that the effect of racial appeals "is. pttt":tY^t:,H:"
i"'r.r" a"gree the opportunity of black citizens to partiopate

effectively in the ptlil[;i ;;;"L"t' and. to elect candidates of

their choice .,, Id. ni"i"i.i."oral appeals are a relevant factor.

i"""* n.p"rt at 29' While not present in this case' one must

be sensitive to the por.iuili,v oi racial electoral appeals by

minoritY candidates as well'

And, the district court found that North Carolina had

offered no legitimat" **, justification for the form of the

challenged districts' 5'90 i: S'pp ' at 373-74' As the court in

Marengo Countyacknowledged' '1the tenuousness of the justifi-

carion for a srare p"ri"y ;"y inai"r* that the policy is unfair."

iir f.za at l57l (citation omitted)'

The foregoing ffndings contained in the district court's

opinion illusrrate ,rrri-ii al"iding this case the court appropri'

ately considered the- it"too that Congress found relevant in

assessing the "totality of circumstances"' Amici also note that

the district "ou* 
.n"iy'"d black electoral sucless at length' as

the statute 
"on,"rnpiJ*', "t 

"on" circumstance to be onsid-

ercd." However, tt'"'C"'n found that in light of the- totality of

circumstances this evidencc of electoral sucoess was inadequate

to establish ttrat uricli had an equal opportunity to participate

in the political p.ooit' because ii was.due to the presence of a

variety of factors ",f'"t 
itt"n those which indicated that blacks

had been gir.n 
"n- 

tqual opportu4ity to parricipate in the

political Process.

In the 1982'election in House District 36 (Mecklenburg

County), for.tr-pii, black candidate Berry was elected' 590

F. Supp. at 369. tli ttt"t elecdon' however' there were only 7

white candidatei fo. ii p"titions so that I black candidate had

to be etected. Ii. Even under these circumstances' only 42

p"t*"i"f ,he white,o,"o voted for Berry' the black candidate'

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

rive elected rro,,, iour" District 
-116 

in ttris century. 590 F. supp.

at 365, 369. S.rai .,t*r black candidates ran unsuclessfully

for office u.,*".rr-igii "na 
l98l' and there was another black

candidate in the 1982 election who lost' Id'

i.'
1:.

..

!
i-
'$

r;
1,

t-.
it
t'



28

ln Senate District 22' whi-ch also includes Mecklenburg

***r##t[*t**r-.=
igso "na 

1982 electioTt' ,1":::::"","'"-'s9o i. supp. at 369.

;;"";;; for the black candio"t"lli?"rcalol tnt ur""r

i$fJ',"rr:g;:l;':'"'iT|,i..i:1"i"'i;;'i"''':n:1"'o
,",".n, of the u"i'""#*'J:i:'g "j :::,lf:*:l1ttlftJfi
l"iilrit",:l'*
polarized votmg llr il tors'w'

utttnlt;"n 
in House District 23 (Durham county)' which' on

the surface, t'n' 
" 
ll""i"i'-""ftsrul rlte or minority electoral

success*tp"'"d'fil';;"oftheoiiti"n"nengeddistricts'
ractors other than-j;lj';;':. tl11*;::l :;H:' -|il:
contributed to that *iT::; ol;o$roD. 

at 366. rn the l9?8

House each term since tv't' -l'" :' ,tirna general elections'

ft,.t-:.;'ff l:*irlmiru:r#,xffi "l'ltFurthermore' in the l:Y:i'1il""""-ii""f necessarilv had to

*1*:ir,:m;:ffijttd. ;iih" white vo'iers raired

to vote for the ui""[itnaidates' t'* *t'"n they had no bther

;1"; Id' arllo-zr'ss

rn light of these nndings' 'r t;}*'"ffix"r;:s :.fflli
:: ;{:i;[ *ti,ilf: f ,,:'"r :ii":i,li' I""*,;: liry . 5 u pp

tt 316' 
'nt 

""'""tt 
'i**to 

tr'"i'i"""'se of the racially

polarized"'""t'"'""1"'il;i11:':i.ilf#":ffi i"t'ilf,I;
ii* r;;"':lffi'"t:: ;'iffi ;-;;;; rerv' extensiverv o n

singre-shot"'i'",'::'#i'oiq:1":"*li*il*:'l'fi :'X$i
right to vote for a full slate o

33 s.. foolnore I et 9' 3' sugro' tot

clcdoral succc!3e3 at issue here' 
r

"2'

Furthermore, the court stressed that even this success was a

recent phenomenot::;'t;;far as'the 1982 elections were

concerned, *" "toJ'i"ptt"-tJ; q9'"i"oational in terms of

#il;;ry:'::.i*:"i:Jl,*[::ii"'llttid::!:n
event, still too mll

ultimate inference" ti"q'"irtv of opportunity" ia' at367 n'27'

The Solicitor Ceneral and a-ppellants' position would nar-

row the scope of ""fi"'t,?;'tffil 
t:"tion z does not permit'

It would require trtl i"'" to ignore' the totality of circum-

stances evidencing'l i""i"r 
''iiqu"r potiticat and electoral

opportunitv in ravJr ii-ro"u'ing-11,bnly the most'recent

election returns' ii rho'e returns e'iaen"ea any noticeable

success by minority t"Jia"t"'' that would be dispositive'

The Solicitor General and appellans try to justify this

"rp.."Jr,ffi 
,y[.;1;i#n*'il"il;"iHr",:."'"1J:ffi1

proportionatit' ,1,t:"i';!];;, a"'i.. 'nr" district court' in
success is dispostttve. .:j:r:;;";;;,;; neither ignored elec-

*ilnmr;':T::;1"::T}:'ffi 'lhis 
one i"'lo' :o b"

concrusive. t "r, 
ir'no'.ugg"rti9n in tt e opinion of the district

court that it misintffi*ilrq inrent-of congtttt and found a

dcnial of voting n'i[ simpty because blacfs had attained less

rhan propo"i"t"in"iil:' i'"i;r' lhe district court expressly

acknowledg"a tf'"t-tt'" lack of proportional representatlon $

insufficient to t"iitoti " J**" z violation' 590 F' supp' at

355.

t-



tq

30

CONCLUSION

For the reasons set forth above, amici respectfully request

that this Court affirm the.decision below, and rccognizc thc

,"."rriay of measuring a violation of Section 2 on the basis of

the..totality of circumstances," with particular emphasis on thc'

factors set forth in Zimmcr and the Scnate Report'

Respectfully submitted,

Wrrttn J. Rocrun
(Counscl of Record)
Mrnr P. Gr,narx
Benmnr L. Arweur

AnxolP & Ponrrr
l20O New HamPchire Ave., N'W'
Washington, D-C.20036
(2021 872-6799

Auornqs for Amici Curiac

Dated: August 30, 1985