Motion to Dismiss or Affirm
Public Court Documents
January 1, 1984

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Case Files, Thornburg v. Gingles Hardbacks, Briefs, and Trial Transcript. Motion to Dismiss or Affirm, 1984. 6c6a8f96-d592-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/be40b136-40c1-47c3-92f3-fba4daccbed8/motion-to-dismiss-or-affirm. Accessed May 13, 2025.
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t. No. 83-1968 IN THE ~upr:rmt Olnurt nf tqt Euittb ~tut:rn OcToBER TERM, 1983 RuFus L. EDMISTEN, et al., Appellants, v. RALPH GINGLEs, et al., Appellees. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA MOTION TO DISMISS OR AFFIRM JULIUS CHAMBERS LANI GUINIER* NAACP Legal Defense and Educational Fund, Inc. 16th Floor 99 Hudson Street New York, New York 10013 (212) 219-1900 LESLIE J. WINNER Ferguson, Watt, W alias, and Adkins, P .A. 951 S. Independence Blvd. Charlotte, North Carolina 28202 (704) 375-8461 Attorneys for Appellees Ralph Gingles, et al. *Counsel of Record • - i - QUESTIONS PRESENTED I. In this action brought under Section 2 o f t h e V o t i n g R i g h t s Ac t , t h e D i s t r i c t Court found as a matter of fact that, under the totality of relevant circumstances in North Carolina, the use of the challenged legislative districts results in black voters in those districts having less opportunity than do othev members of t.he electorate to participate in the political process and to elect representatives of their choice. Were these findings of fact clearly erroneous under Rule 52(a)? II. Does administrative preclearance of a legislative district under Section 5 of the Voting Rights Act. absolutely bar private - ii - p a r t i e s fr om 1 it i g a t i n g t h e 1 e g a 1 it y o f that district und~r Section 2 of the Voting Rights Act, in the face of clear statutory language to the contrary? - iii - TABLE OF CONTENTS ~ MOTION TO DISMISS OR AFFIRM ••••••••••• 1 STATEMENT OF THE CASE •••••••••••••••••• 2 I. THE DISTRICT COURT'S DETERMINATION THAT NORTH CAROLINA'S GENERAL ASSEMBLY DISTRICTS VIOLATE § 2 OF THE VOTING RIGHTS ACT IS BASED ON THE CORRECT STANDARD AND IS NOT CLEARLY ERRONEOUS • . • • • • • • . . • • • • • • . • • • • • • • . • 8 A. The District Court Applied the Correct Standard in Determining That the Election Districts in Question Have a Discriminatory Result ••.. ~................. 8 B. The District Court's Ultimate and Subsidiary Findings Are Not Clearly Erroneous ••••••••••• 14 1. The Court Weighed the Par ticular Circumstances Rele vant to This Action in Making Its Findings ••••• 14 2. The District Court's Finding oF Racially Polarized Voting is Not Clearly Erro- n~ous • • • • • • • • • • • • • • • • • • 22 3. The District Court's Ulti mate Finding of Discrimina tory Result is not Clearly Erroneous • • • • • • • • • • • • • • • 3 5 iv - II. THE DISTRICT COURT PROPERLY CON- SIDERED ALL THE STATE'S EVIDENCE 42 III. PRECLEARANCE UNDER SECTION 5 OF THE · VOTING RIGHTS ACT DOES NOT BAR APPELLEES' CLAIM UNDER S E C T I 0 N -2· • • • • • • • • • • • • • • • • • • • • • • : • • 4 5 CONCLUSION • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 56 - v - TABLE OF AUTHORITIES Cases: Alexander v. Gardner-Denver Company, 415 u.s. 36 (1974) ••••••••••••••• Allen v. McCurry, 449 U.S. 90 ( 1980) .•• ·-•••••••••• ~ •••••••••••• Chandler v. Roudebush, 425 U.S. 840 ( 1976) .••....•.•.•...•...•••••••• Co o p er v • A a r o n , 3 5 8 U • S • 1 ( 1 9 5 8 ) Donnell v. United States, 682 F.2d 51 50 51 45 240 (D.C. Cir. 1982) ••••••••••••• 54 East Carroll Parish School Bd. v. Marshall, 424 U.S. 636 (1976) 12,27 Jones v. City of Lubbock, Tex., 727 F.2d 364 (5th Cir. 1984) •••••••• 14,15 Kirksey v. Board of Supervisors, 554 F.2d 139 (5th Cir. 1977) ••••••. 41 Kremer v. Chemical Construction Corporation, 456 U.S. 461 ( 1982 ) _ • • • • • • • • • • • • • • • • • • • • • • • • • 50 Major v. Treen, 574 F. Supp. 325 (E.D. La. 1983)(three judge court) ••. 34,40,48 - vi - Mstter of Merrill, 594 F.2d 1064 (5th Ci r. 1 979) . • . . •. • • . . . • • • • • . . . . • 50 Monroe v. Bd. of Commissioners, 391 u.s. 450 (1968) ••.•••••••••..• 45 Morris v. G,res~ette, 432 U.S. 491 ( 1977) •• · ~;. ~................. . 53' 54 NAACP v. Gadsden Co. School Bd. 691 F.2d 978 (11th Cir. 1982) ••.. 27,41 Porter and Dietsch, Inc. v. F.T.C., 605 F.2d 294 (7th Cir. 1979), cert. denied 2 '4'45u.s. 950 (1979) • • • • • • •• • .• •• 51 Pullman-Standard v. Swint, 456 U.S. 273 ( 1982) ••••••.•••.••••••.••••••• 1 5 Rogers v. Lodge, 458 U.S. 613 (1982) ••• 15,32 Rybicki v. State Bd. of Election of Illinois, 574 F. Supp. 1147 (E.D. Ill. 1983)(three judge court) ••••••••• 14,40 Swann v. Charlotte-Mecklenburg Bd. of Ed., 306 F. Supp., 1291 (W.D.N.C. 1969) aff'd, 402 U.S. 1 (1971) 44 United States v. East Baton Rouge Par'ish School Bd., 594 F.2d 56 (5th C i r . 1 9 7 9 ) ._ ,• • • • • • • • • • • • • . • • • • • • • • • 4 8 United Sta'tes v·. Marengo Co. Comm., 731 F.2d 1546 (11th Cir. 1984) •.••.• 14,40 Velasquez v. City of Abilene Tex., 725 F.2d 1017 (5th Cfr. 1984) •••••••• 14,15 - vii - Whitcomb v. Chavis, 403 U.S. 124 ( 1971) • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 40 White v. Regester, 412 U.S. 755 (1973) •••.•••••••••••••••• 12,13,41,42 -zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) •••••••••••• 12,27 Constitutional and Statutory Provisions U.S. Canst. amend. XIV ••••••••••• Votihg Rights Act Amendment of 1982, Pub. L. No. 97-205, 96 Stat. 131 (1982) ••••••••••••••••••• Voting Rights Act of 1965, 42 U.S.C. § 1973 (c) ••••••••••••••••••••• Rule 52(a) F.R. Civ. P •••••••• ~ ••• 28 CFR § 51.41 28 CFR § 51.46 ................... Legislative History S. Rep. No. 97-417, 97th Cong.,2d 32 passim passim 1 5 53 53 Sess. (1982) ••••••••••••••• 9,10,13,17, 34,41,48,49,50 H.R. Rep. No. 97-227, 97th Cong., 1st Sess. (1981) ••••••••••••••••• Other Authorities Wright, Miller and Cooper, Federal Practice and Procedure: Jurisdiction § 4416 ~ ~· ..... ~ 9,48 50 - 1 - No. 83-1968 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1983 RUFUS L. EDMISTEN, et al., Appellants, v • RALPH GINGLES, et al., Appellees. On Appeal From the United States District Court For the Eastern District of North Carolina MOTION TO DISMISS OR AFFIRM Pursuant to Rule 16.1, Appellees, Ralph Gingles, et al., move that the Court dismiss the appeal or affirm the judgment below on the ground that th~ questions on - 2 - which the decision of the case depends are so unsubstantial as not · to need further argument. Statement of the Case Appellees filed this action on Sep- tember 1 6 ' 1981, challenging the 1981 apportionment of both houses of the North Carolina General Assembly ("the General Assembly") on the grounds, inter alia, that. the apportionments were illegal and unconstitutional in that: (1) each had been enacted pursuant to provisions of the North Carolina Constitution which were required to be but had not been precleared under Section 5 of the Voting Rights Act of 1965, 1 as amended, 42 U.S.C. § 1973c ("§ 5 of the 1 Forty of North Carolina's 100 coun ties are covered by Section 5 of the Voting Rights Act. - 3 - Voting Rights Act" or "Section 5"); and (2) the use of multi-member districts illegally submerged minority population concent.ra t.ions and dilut. e a minority voting st.renqt.h in violaticin of the Constitution and Section 2 of t.he Voting Rights Act. of 1965, as amended, 42 U.S.C. § 1973. After t.he Complaint was filed, the State of North Carolina submitted the provisions of the North Car.olina Consti tution, which prohibit dividing counties in the formation of a legislative district, for preclearance under Section 5. The Attorney General, in a let. ter signed by William Bradford Reynold s , objected to the provisions, finding t.hat the use of large multi-member districts "necessarily submerges cognizable minority population concentrations into larger white elec torates." Jurisdictional Statement at. 6a. - 4 - • The At. torney General, acting through Reynolds, also found the 1981 House, Senate and Congressional plans, as well as two subsequent House plans and one subsequent Senate plan, . to be racially discriminatory. Despite warnings from special ·counsel, black citizens' groups, and various legislators that the use of multi-member districts could result in impermissible dilution of black citizens' voting strength, the General Assembly continued to use this method in the House and in the Senate. At an 8 day t. rial in July 1983 before all three judges, appellees chal lenged six of the multi~member districts, five in the House and one in the Senate. Appellees also challenged the configuration of one single member Senate District. Five of the challenged districts consist - 5 - entirely of counties not covered by Section 5 and, therefore, were not subject to the Attorney General's review. On January 27, 1984, the Honorable J. Dickson Phillips, Jr., writing for the unanimous District Court, found that black citizens of North Carolina do not have an equal opportunity to participate in the State's political the challenged system and that use of legislative districts illegally minimizes their opportunity to elect representatives of their choice. The District Court made extensive and meticu lous findings that there currently exists: a disparity between black and white voter registrat. ion which is a legacy of past intentional disfranchisement; severe socio- economic inequities which result from past discrimination and which give rise to a commonality of interests within geo graphically identifiable black communities; - 6 - minimal electoral success of black candi- dates; the use of racial appeals in cam- paigns; and a persistent failure of most white voters to vote for black candidates. In short, the Court found that, while there has been some progress, the gap between the ability to participate of white and black voters remains substantial. Based on these finding the District Court entered a unanimous Order which declared that the apportionment of the General Assembly in six challenged multi- member districts and one single member district violate Section 2 of the Voting Rights Act, and enjoined elections in those districts pending court approval of a districting plan which does not violate 2 Section 2. 2 Appellees did not challenge all multi-member districts used by the State nor did the District Court rule that the use of multi-member districts is ~ se illegal. The District Court's Order Teaves - 7 - Appellants' petition for a stay of the Order was unanimously denied by the District Court, and was subsequently denied by Chief Justice Burger, on February 24, 1984, and by the full Court on March 5, 3 1984. 3 untouched 30 multi-member districts in the House and 13 in the Senate. The District Court's Order did not affect 48 of North Carolina's 53 House of Representative Districts and did not affect 27 of North Carolina's 29 Senate Districts. By subsequent orders, the District Court approved the State's proposed remedial districts for six of the seven challenged districts, and primary elec tions have been held in those districts. The District Court has not acted on the Defendants' proposed remedial apportion ment of one district, former House District No. 8, pending preclearance of defendants' proposal under Section 5. - 8 - ARGUMENT I. THE DISTRICT COURT'S DETER MINATION THAT NORTH CAROLINA'S GENERAL ASSEMBLY DISTRICTS VIOLATE §2 OF THE VOTING RIGHTS ACT IS BASED ON THE CORRECT STANDARD AND IS NOT CLEARLY ERRONEOUS A. The District Court Applied the Correct Standard in Determining That the Election Districts in Ques tion Have a Discriminatory Result Section 2 of the Voting Rights Act was amended in 1982, by the Voting Rights Amend ni en t s of 1 9 8 2 , 9 6 Stat • 1 31 ( June 2 9 , 1982)~ to provide that a claim of unlawful vote dilution is established if, "based on the totality of circumst~nces," members of a racial . minority "have less opportunity than other members to participate in the political process and to elect repre- sentatives of their choice." 42 u.s.c. §1973, as amended. The Committee Reports accompanying . the amendment make plain the - 9 - congressional intent to reach electiort plans that minimize the voting strength of minority voters. S. Rep. No. 97-417, 97th Cong., 2d Sess. at 28 (1982) ( hereafter "Senate Report" or "S.Rep."); H. R. Rep. No. 97-227, 97th Cong., lst Sess. at 17-18 4 (1981) (hereafter "House Report"). The Senate Report, at pages 27-30, sets out. a detailed and specific road map for the application of the amended Section 2. When called upon to apply the statut.e, as amended, to a claim of unlawful dilu- 4 Appellants assert. that the legislative history of the 1982 amendments is unclear because there is no conference committee report. J.S. at 8. However, as the House unanimously adopted S.1992, which had been reported out of the Senate Committee on the Judiciary and adopted by the Senate, there was no need for a conference committee or for a conference committee report. See J.S. at 9a, n.7. In fact there was r')"()Conflict between the intent of the House and of the Senate. The Senate adopted substitute language to spell out more specifically the standard which the House meant to codify. S. Rep. at 27. - 10 - tion, the federal courts were directed by Congress to assess the interaction of the challenged electoral mechanism with the relevant factors enumerated in the Senate Report. at 28-29. It is apparent. from the analysis of Section 2 contained in the Memorandum Opinion and from the det~iled assessment of the facts that the District Court under- stood and properly applied its Congres- sional charge to the facts of this case. The actual standard applied by the District Court is embodied in its Ultimate Findings of Fact: 1. Considered in conjunction with the totality of relevan-t circumstances found by the court the lingering 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 persistent racial appeals in political campaigns, a relatively depressed socio-economic status resulting in significant degree from a century of de jure and de facto segrega tion, and the continuing effect of a - 11 - majority vote requirement the creation of each of the multi-member districts challenged in this action results in the black registered voters of that. district. being submerged as a voting minority in the district and thereby having less oppor- tunity than do other members of the electorate to participate in the political process and to elect represent.atives of their choice. 2. Considered in conjunction with the same circumstances, the creation of single-member Senate District No. 2 results in the black registered voters in an area covered by Senate Districts Nos. 2 and 6 having their voting strength diluted by fracturing their concentrations into two districts in each 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 represen tatives of their choice. J.S. at 51a-52a. Appellants assert that "t.he district court erred by equating a violation of Section 2 with the absence of guaranteed proportional representation." J.S. at 9. This statement, supported only by a sentence fragment. from the opinion, J.S. at 9-10, grossly distorts the standard actually used by the District Court, and - 12 - ignores the extensive discussion by t.he District Court of the meaning and proper application of Section 2 of the Voting Rights Act. J.S. at lla-18a. In that discussion, the District Court. explicitly stated its interpretation of the standard to be applied and the factors to be considered: In determining whether, "based on the tot.ality of circumstances," a state's electoral mechanism does so "result" 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 White v. Regest.er and subsequently elaborated by the former Fifth Circuit in Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) · (en banc),aff'd on other grounds ~ nom. East. Carroll Parish School EfOard v. Marshall, 424 U.S. 636 (1976) (per curiam). Th e s e t y p i c a 11 y i n c 1 u d e , p e r t h e Senate Report accompanying the compromise version enacted as amended Section 2: 'I,Y. - 13 - trh~reafter the District Court listed the factors enumerated at pp. 28-29 of the Senate Report.] J.S. at 12a-13a. The District Court did not ignore White v. Regester, 412 U.S. 755 (1973), and its progeny, nor did the District Court interpret those cases to require pro- portional representation. See J.S. 14a-15a. As the Court explicitly said, "[T]he fact that blacks have not been elected under a challenged districting plan in numbers proportional to their percentage of the population [does not establish that vote dilution has resulted]." J.S. at 15a. In sum, the Dist.rict Court examined each factor specified by Congress in the Se n a t e R e p o r t. and , w i t h o u t 1 i m it i n g i t s assessment to just one factor, as appel- 5 lants do, assessed them as a totality. The 5 The Courts of other circuits, as did the Court below, have interpreted the amended Section to require the trial court - 14 - District Court clearly engaged in the Congressionally mandated analysis and applied the proper standard. B. The District Court's Ultimate and Subsidiary Findings of Fact Are Not Clearly Erroneous 1. The Cqurt Weighed The Particu lar Circumst~nces Relevant. To This Action In Making , It§ Findings Since the District Court applied the proper standard t.o the facts before it., the real question raised by appellants is whether the three judges properly weighed to examine the factors listed at pages 28-29 of the Senate Report and, consider ing the totality of the circumstances, determine whether the challenged election method violates Section 2. U.S. v. Marengo County Comm., 731 F.2d 1546, 1565-1566 (11th Cir. 1984); Jones v. City of Lubbock, 727 F.2d 364, 384-385 (5th Cir. 1984); Velasquez v. City of Abilene, Tex., 725 F.2d 1017, 1022-23 (5th Cir. '1984); R bicki v. State Bd. of Elections, 574 F. Supp. 1147, 1148-50 E.D. Ill. 1983)(t.hree judge court). - 15 - the voluminous evidence. While the judges heard eight days of testimony, examiner! hundreds of documents, and made thirty- three page s of factual findings, t. he appellants base their argument, in essence, on one fact: the electoral success of a few black candidates in 1982. The ques- tion thus raised is whether, in assessing the totality of circumstances, the District Court's judgment as to the proper weight to 6 give to this fact is clearly erroneous. ~-------------- 6 Rule 52(a), F.R.Civ.P., provides that neither the ultimate nor the subsidiary findings of fact of the District Court may be reversed unless they are clearly erroneous. Rogers v •. Lodge, 458 U.S. 613, 622-623, 627 (1982) (clearly erroneous standard applies to finding that an at large voting system is being maintained for a discriminatory purpose and to the underlying subsidiary findings); Pull man-Standard v. Swint, 456 U.S. 273, 287-293 (1982). See ~ Velasquez v • City of Ab i 1 en e , T ex • , 7 2 5 F • 2 d 1 0 1 7 , 1 0 2 1 (5th Cir. 1984); Jones v. City of Lubbock, 727 F.2d 364, 380 (5th Cir. 1984). - 16 - The District Court analyzed each of the factors suggested by Congress to determine its bearing on t.he ability of black citizens to elect candidates of their choice to the General Assembly. One factor is the extent of black electoral success. With regard to that factor, it is plain t.hat before this action was commenced in 1981, a nominal number of blacks had been elected to the General Assembly. The District Court discussed the 1982 elections and found them to be uncharacteristic. After examining black electoral successes and failures, Judge Phillips concluded: [T]he success that has been achieved by black candidat.es 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 compel or even arguably to support an ultimate finding that a black candidate's race is no longer a significant adverse factor in the political processes of the state - 17 - eit.her generally or spe cifically in the areas of the challenged districts. J. S. at 37a-38a. See also, J. S. at 37a n.27. This conclusion was considered along with findings on the other factors enumer- ated in the Senate Report. These are su~marized as follows: a • There is a current disparity in black and white voter registration result- ing from the direct denial and chilling by the State of registration by black cit.i- zens, which extended officially into the 1970's with the use of a literacy test and anti-single shot voting laws and numbered seat requirements. The racial animosities and resistence with which white citizens have responded to attempts by black - 18 - citizens to participate effecti¥ely in the political process are still evident today. J.S. at 22a-26a. b. Within each challenged district racially polarized voting is persistent, severe, and statistically significant. J.S. at 38a-39a, 46a. c. North Carolina has a majority vote requirement which exists as a con- tinuing practical impediment to the opportunity of black voting minorities in the challenged districts. J.S. at 29a-30a. d. North Carolina has a long history of public and private racial discrimination in almost all areas of life. Segregation laws were not repealed until the late 1960's and early 1970's. Public schools were not significantly desegregated until the early 1970's. Thus, blacks over 30 years old attended qualitatively inferior segregated schools. Virtually all neigh- - 19 - borhoods remain racially identifiable, and J past discrimination in employment continues to disadavantage blacks. Black households are three t.imes as likel-y as white house- holds to be below poverty level. The lower socio-economic status of blacks results from the long history of discrimination, gives rise to special group interests, and currently hinders the group's ability to participate effectively in the political process. J. s. at 25a-29a. e. From the Reconstruction era to the present time, appeals to racial prejudice against black citizens have been used effectively as a means of influencing voters in North Carolina. As recently as 1983, political campaign materials reveal an unmistakable intention to exploit white voters' existing racial fears and prej- ud ices and to create new ones. J.S. at 31n-32a. - 20 - f. The ext.ent. of election of blacks to public office at. all levels of govern- ment is minimal, and black candidates continue to be at a disadvantage. With regard to the General Assembly in particu lar, black candidates have been signifi- cantly less successful than whites. at 33a-34a, 37a-38a •. J.S. g. The State gave as its reason for the multi-member districts its policy of leaving counties whole in apportioning the General Assembly. However, when the challenged apportionments were enacted, the State's policy was to divide counties when necessary to meet population deviation requirements or to obtain Section 5 preclearance. Many counties were divided. The policy of dividing counties to resolve some problems but not others does not justify districting which results in racial vote dilution. J.S. at 49a-50a. - 21 - The District Court included the extent to which blacks have been elected to office as "one circumstance" to be co nsidered, 42 U.S.C. §1973(b), made an intensely local of all of the and detailed appraisal relevant circumstances, and determined that the challenged districts have a discrimi natory result. For this Court to reverse the District Court's ultimate findings would require this Court to find (1) that. the District Court's assessment of pre-1982 electoral success was clearly erroneous; (2) that the District Court's assessment that the 1982 elections were atypical was clearly erro- neous; and ( 3) that., in weighing the totality of the circumstances, the relative weight given by the Court to one po s t lit.i_gation election year was clearly erroneous. 2. - 22 - The ,District Court's Finding of Racially Polarized Voting is Not Clearly Erroneous. Appellants assert that the electoral success of some blacks in 1982 precludes the District Court from finding severe racially polarized voting. This is the only subsidiary finding appellants chal- 7 lenge. In finding voting to be racially polarized, the District Court engaged in a detailed analysis of election returns from each of the challenged districts extending over several elections, supported by the testimony of numerous lay witnesses and 7 Although appellants challenge this finding as an error of law, the finding of racially polarized voting is one of fact covered by Rule 52(a). Jones v. Lubbock, 727 F.2d at 380. Appellants apparently limit this challenge to those areas not covered by §5. They do not discuss facts from either House District No. 8 (Wilson, Edgecombe, and Nash Counties) or Senate District No. 2. - 23 - expert testimony regarding every election for the General Assembly in which there had been a black candidate in the challenged multi-member districts . for the three election years preceding the trial. J. s. 38a-39a. Based on its exhaustive analysis of the evidence, the District Court. found that racially polarized voting was severe and persistent. Appellants erroneously claim that the District Court determined racial polari zation by labeling every election in which less· than 50% of the whites voted for the black candidate as racially polarized. J.S. at 17. Although it is true that no black candidate ever managed to get votes from more than 50% of white voters, this is not the standard the District Court used. Instead, the District Court examined the measurement of voting to determine racially the extent polarized to which - 24 - black and white voters vote differently from each other in relation to the race of the candidates. J.S. at 39a, n.29. The District Court's assessment can be sum- marized in three findings: a. The evidence shows patterns of racial polarization. The Court found: On the average, 81.7% of white voters did not vote for any black candidate in the primary elections. In the general elections, white voters almost always ranked black candidates either last or next to last in the multi-can didate field except in heavily Democratic areas; in these latter, 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 to vote for a Republi can or no one. Black incumbency alleviated the general level of polarization revealed, but it did not eliminate it. Some black incumbents were reelected, but none received a majority of white votes even when the election was essentially uncontested. - 25 - J.S. at 40a. b. The correlation between the race of the voter and the race of the candidate voted for was statistically significant at the .00001 level in every election analyzed. Although correlation coefficients above an absolute value of .5 are relatively rare and those above .9 are extremely rare, all correlation coefficiints in this case were between .7 and .98 with most above .9. 38a-39a and n.30. J.S. at c. In all but two elections, the b 1 ac k candidate lost. among white voters --that is the results of the election would have been different if held only in the white community than if held only in the black community. J. s. at 39a-40a and n.31. The District Court used the term "substantively significant" in these circumstances. Appellants posited - 26 - no alternative definition supported either by case law or political science literature. J.S. at 40a, n.32. Appellants offered no statistical analysis which contradicted the conclu sions of the District Court. They did not question the accuracy of the data or assert that the methods of analysis used by appellees' expert were not standard in the literature. fact, appellants J.S. at 38a n.29. In conceded that the polarization of the voting was statis tically significant for each of the elections analyzed. Nonetheless, appellants contest the District Court's finding of racially polarized voting citing examples from only one post-litigation election year, 1982. This is particularly inappro priate, as the District Court concluded that. 1982 was "obviously aberrational" - 27 - and that whether it will be repeated is sheer speculation. Among the aberra- tiona! factors was the pendency of this lawsuit and the one time help of black candidates by white Democrats who wanted to defeat single member districts. J. s. at 37a. This skeptical view of post- litigation electoral success is sup- ported by the legislative history of the Voting Rights Act and t.he case law. Senate Report at 29, n.115; Zimmer v. McKeithen, 485 F.2d 1297, 1307 (5th Cir. 1973) (en bane) aff'd E.!:!. other grounds sub nom East Carroll Parish School Board v. Marshall, 424 U.S. 636 (1976); NAATP v. Gadsden Co. School Board, 691 F.2d at 983. - 28 - In addition to being drawn only from post-litigation elections, the examples given by appellants are misleading and are taken out of context. For example: (a) Appellants point out that in the 1982 Mecklenburg House primary, black candidate Berry received 50~a of the white vote. The District Court noted this but stated that it "does not alter the c~nclusion that there is substantial racially polarized voting in Mecklenburg County in primaries. There were only seven white candidates for eight positions in the primary and one black candidate had to be elected. Berry, the incumbent chairman of the Board of Education, ranked first. among black voters but seventh among whites." J.S. at 42a. - 29 - The other black candidate, Richard son, was ranked last by white voters in the primary but second, after Berry, by blacks. In the general election, Richardson was the only Democrat who lost. Similarly, in the 1982 Mecklenburg County Senate race, the black candidate who was successful in the primary was the only Democrat who lost in the gerteral election, ranking first among black voters but sixth out of seven by white voters for four seats. b. Appellants point out that black candidate Spaulding received votes from 47% of white voters in the 1982 general election in Durham County. They neglect to point out there was no Republican opposition in that election, and that a majority of white voters therefore ' '-.__::7 - 30 - failed to vote for the black incumbent even when they had no ·other choice. J.S. at 44a. Appellants also failed to point out that in the Durham County primary for 1982 there were only two whit.e candi- dates for three seats so at least one black had to win. As t he District Court noted, "Even in this situation, 63% of white voters did not vote for the black incumbent, the clear choice of the black voters." J.S. at 44a. (c) Appellants point out that in Forsyth County two black candidates in 1982 were successful but fail to note, as the District Court did, that white voters ranked the t.wo black candidates seventh and eighth out of eight candi- dates for five seats in the general election while black voters ranked them first and second. J.S. at 43a. •, j/ - 31 - (d) As another example, while noting that black elected incumbents have been re-elected, appellants fail to note that white voters almost always continue to rank them last and that black appointed incumbents have uniformly been defeated. The three judqes who heard the evi dence considered each of the facts which appellants point out, together with the surrounding circumstances, and con- eluded that these pieces do not alter the conclusion of severe and persistent racially polarized voting. Appellants also assert that ra cially polarized voting is probative of vote dilution only if it always causes blacks to lose. In fact, in 21 of the 32 election contests analyzed in which the black candidate received substantial black support, the black - 32 - candidate did lose because of racial polarization in voting. That is, he lost even though he was the top choice of black voters because of the paucity of support among white voters. Appellants assert that whites must uniformly win for racially polarized voting to be probative. They support this argument by citing Rogers v. Lodge, supra, a case decided under the purpose standard of the Fourteenth Amendment of the United States Constitution. Appellees do not believe that Rogers v. ~odge stands for the proposition boldly asserted by appellants, but the Court need not consider, in the context of this case, whether the complete absence of black electoral success is necessary to raise an inference that an at large system is being maintained for a discriminatory purpose. - 33 - The instant case was decided under the Voting Rights Act, and the statutory language of Section 2 specifies that a violation exists if black citizens have "less opportunity" to elect representa tives of their choice; it is not limited to situations in which black candidates have absolutely no chance elected. 42 u.s.c. § 1973(b). of being Racially polarized voting can give rise to this unequal opportunity, even if it does not cause black candidates to lose every single election. Appellants' argument is, in es- sence, that. any black electoral suc cess necessarily defeat.s a Section 2 claim, an argument which defies the intent of Congress. See S. Rep. at 29, n.115, and discussion at p. 35, infra. - 34 - As the Court noted in Major Treen, 574 F.Supp. 325, 339 (E.D. La. 1983) (three judge court): Nor does the fact. that several blacks have gained elective office in Orleans Parish detract from plaintiffs' showing of an overall pattern of polariza tion ••• Racial bloc voting, in the context of an electoral structure wherein the number of votes needed for election exceeds the number of black voters, sub stantially diminishes the opportunity for black voters to elect the candidate of their choice. The District Court considered v • ' all of the evidence, including the facts to which the appellants allude, and determined that racially polarized voting is severe and persistent in the districts in ques- tion. This finding is not clearly erro- neous. - 35 - 3. The District Court's Ultimate Findjng of Discriminatorx Result is Not Clearly Erroneous The t.ask of the t.hree District Court judges was to examine historic and current racial and political realities in North Carolina, to determine if the challenged legislative districts operate to deny black citizens an equal opportunity to elect representatives to the General Assembly. The judges below engaged in an intensely local appraisal of these factors and appellants ask this Court to rule that. their determination was clearly erroneous. Appellants do not challenge the lower court's findings on six of seven Section 2 factors, and, as discussed in part IB(2), supra~ the seventh subsidiary finding, that voting in North Carolina is racially polarized, is not clearly erroneous. Thus, the question is whether the District Court - 36 - properly assessed the tota l ity of cirCU~- stances. In the Statement of the Case appellants recit.e random black electoral ... successes and then imply, without saying, that. under the circumstances, a finding of discriminatory result is erroneous because ' it is tantamount to a requirement of proportional representation. As was discussed in part 18(1), supra, the District Court did not ignore the election of blacks in its weighing of the facts. Rather, after examining the extent of minority election, the District. Court found, in addition to minimal election of blacks to the General Assembly before this litigation was initiated, that in the six multi-member districts in question, black candidates who won Democratic primaries between 1970 and 1982 were three times as - 37 - likely to lose in general elections as were their white Democratic counterparts. J.S. at 33a - 34a. In addition, the District Court found that blacks hold only 9~~ of city council seats (many from majority black election districts); 7.3% of the cou ~ ty commission seats; 4% of sheriff's offices; and 1?~ of the offices of the Clerk of Superior Court. No black has been elected to statewide office except three judges who ran unop- posed as appointed incumbents. No black has been elected to the Congress of the United States as a representative of this 8 state. J.S. at 33a. On a county by county basis appellants also paint a lopsided picture. In Forsyth County appellants specify isolated in- stances of electoral success but ignore 8 North Carolina is 22.4?~ black in pop ulation. - 38 - electoral failures such as: (1) the defeat of appointed black . incumbents which resulted in no blacks being elected to the House of Representatives from Forsyth County in 1978 and 1980, years in which all white Democrats were successful; (2) the defeat in 1980 of the black who had been elected to the County Commission in 1976 which resulted in a return to an all white County Commission; and (3) the defeat. in 1978 and 1980 of the black who had been elected to the Board of Education in 1976 returning the Board of Education to its previous all white status. In each of these instances the evi dence showed that black Democrats were defeated when white Republicans did well, but white Democrats won consistently, even in good Republican years. - 39 - In addition, appellants do not mention that House District No. 8, which is 39?~ black in population and has four repre- sentatives, has never elected a black representative, J. s. at 36a, or that. Mecklenburg County, which, with eight House seats and four Senate seats, is the largest district in the General Assembly and which is over 25% black in population, has this century elected only one black senator (from 1975-1979) and one black represen- tative (in 1982, after this lawsuit was filed). J.S. at 34a. In Mecklenburg County, as in Forsyth County, black Democrats who were successful in Democratic primaries, in the House in 1980 and 1982 and in the Senate in 1982, were the only Democrats to lose to white Republicans. No white Democrat lost to a 9 Republican in those elections. 9 Thus, this case is in no way similar - 40 - Rather than requiring guaranteed election, and rather than simplistically considering erratic examples of electoral success, the District Court followed the statutory mandate by considering black electoral success and failure as one factor in the totality of circumstances leading to its conclusion of discriminatory result. 42 U.S.C. § 1973(b). Other courts have not required the complete absence of black electoral success in order to find a violation of Section 2. United States v. Marengo County Commission, 731 F.2d at 1572; Major v. Treen, 574 F.Supp. at 351-352; Rybicki v. State Bd. of Elections, 574 F.Supp. at 1151 and n.5. This interpretation of the amended §2 is consistent with pre-amendment case law to Whitcomb v. Chavis, 403 U.S. 124, 150-152 (1971), in which black defeat was caused by Democratic Party defeat, not by race. - 41 - which held that some black electoral success does not preclude a finding of dilution. See White v. Regester, 412 U.S. at 766; NAACP v. Ga~sden Co. School Boatd, 691 F.2d at 983; ~irksey v. Board of Supervisors, 554 F.2d 139, 143 (5th Cir. 1977). The conclusion of the District Court, that the election of some minority can- didates does not negate a finding of discriminatory result, is consistent with the clear intent of Congress as stated in the Senat.e Report: "[T]he election of a few minority candidates does not 'necessarily foreclose the possibility of dilution of the black vote', in violation of this section." S. Rep. at n.115. The determination of whet. her an electoral system has an illegal discrimi natory result requires findings of fact which blend "history and an intensely loc a l - 42 - appraisal of the design and impact of the ••• multi-member district in the light of past and present reality, political and otherwise." W_h_l_._t_e __ v~. ____ R_e_g~e_s_t_e __ r, 412 U.S. at 769-770. The District Court in this action engaged in just this "intensely local appraisal." The District Court's findings are so meticulously supported by the record as to warrant summary affirmance by this Court. II. THE DISTRICT COURT PROPERLY CON SIDERED ALL THE STATE'S EVIDENCE Appellants dispute the weight the District Court gave to evidence that. a handful of black voters and a few black and white politicians disagreed with the single member district remedies proposed by plaintiffs. - 43 - In their Jurisdictional Statement appellants allude to the testimony of one black legislator and some white politicians who supported retention of the multi-member redistricting plans under which they were elected and to the testimony of three black witnesses who testified in opposition to single member districts. Appellants characterize this evidence as substantial, J.S. at 21, and urge that. the Court. below erroneously disregarded it. In fact the District. Court. carefully evaluated the testimony of all the State's witnesses as a factor bearing upon the claim of racial vote dilution. J.S. at 47a-48a. The Court. found that the black witnesses who testified for the State were a "distinct minority" whose views "went almost. exclusively to the desirability of the remedy sought b~ plaintiffs, and not to - 44 - the present existence of a condition of vote dilution." Id. This finding is amply supported by the record. The appellants erroneously contend that in evaluating a claim of racial vote dilution, the District Court should have found that evidence that the plaintiffs' proposed remedy was not unanimously endorsed by every member of the black or white community outweighed all other evidence of the objective factors identi- fied as relevant by Congress. This is fundamentally inconsistent with the Congressional mandate in amending Section 2 to eliminate racial vote dilution. It does not raise a substantial question. Compare Swann v. Charlotte-Mecklenburg Board of Education, 306 F. Supp. 1291, 1293 (W.O. N.C. 1969) aff'd, 402 U.S. 1 (1971). Cf. - 45 - Cooper v. Aaron, 358 U.S. 1, 16 (1958); Monroe v. Bd. of Commissioners, 391 U.S. 450, 459 (1968). III. PRECLEARANCE UNDER SECTION 5 OF THE VOTING RIGHTS ACT DOES NOT BAR APPELLEES' CLAIM UNDER SECTION 2 Appellants rely on the decision by the Assistant Attorney General of the United States to preclear the House and Senate reapportionments pursuant to Section 5 of the Voting Rights Act to contend t.hat appellees (plaintiffs below) were estopped or precluded from pursuing their Section 2 claims in those districts composed of - 46 - 10 counties covered by Section 5. This argument is specious, and was rejected by the District Court for three reasons: (1) The statute expressly contem- plates a ~ ~ statutory action by private plaintiffs; (2) The substan- tive standard for a violation of Section 5 is not coterminous with the substantive standard under Section 2; and ( 3) Section 5 preclearance is an ~ parte non-adversarial process that has no collateral estoppel effect. Section 5 of the Voting Rights Act expressly contemplates a de novo action such as in the instant case: 10 Neither an affirmative indication by the Attorney General that no objection will be made nor the Attorney General's failure to object, nor a declaratory This argument is limited to House District 118 and Senate District 112, the only districts composed of counties covered by Section 5. - 47 - judgment entered under this section shall bar a subsequent action to enjoin enforcement of such qualification, prerequisite, standard, practice, or procedure. 42 U.S.C. § 1973c. The statute does not limit such actions to purely constitutional claims or contain any 1 1 qualifications barring Section 2 actions. Private plaintiffs are entitled to bring a subsequent action whether preclearance results from "a declaratory judgment entered under this section" or from "an affirmative indication by the Attorney General that no objection will be made." Id. Moreover, the language in Section 5 11 Appellants were so informed by the Assistant Attorney General in his April 30, 1982 preclearance letter to the State: "Finally," he wrote, "we feel a respon sibility to point out that Section 5 of the Voting Rights Act expressly provides that the failure of the Attorney General to object does not bar any subsequent judicial action to enjoin the enforcement of such changes." - 48 - should be viewed in the light of the recent amendments to Section 2, in which Congress made c 1 ear that p-rivate c it i zen s have a statutory cause of ~ction to enforce their rights in both Section 5 covered and uncovered jurisdictions. See House Report at 32; Senate Report at 42. Plaintiffs are therefore not barred from mountinq a de novo statutory or constitutional attack upon a reapportionment plan notwithstanding preclearance. Major v. Treen, supra, at 327 n.1, citing United States v. East Baton Rouge Parish School Bd., 594 F.2d 56, 59 n.9 (5th Cir. 1977). Secondly, the failure of the Attorney General to object under Section 5 cannot be probative of whether there is a Section 2 violation unless the standards under these two sections of the Voting Rights Act are the same. There is nothing in the record which demonstrates what standard the _}' - 49 - Attorney General used in preclearing House District #8 or Senate District #2. It is particularly ambiguous since these two districts were precleared in April 1982, two months before the 1982 extension and enactment of amendments to Section 2. It is manifest, however, that the Attorney General did not use the standard of a statute yet to be enacted. In addition, the legislative history of the amendment of Section 2 suggests that the use of the word "results" in the statute distinguishes the standard for proving a violation under the Section 2 totality of circumstances test from the Section 5 regression standard for deter mining discriminatory purpose or effect. Senate Rights S.1975, Report at 68 and Act: Hearings on S.1992 and H.R. n.224; 2 Voting S.53, S.1761, 3112 Before the Subcomm. on the Constitution of the Senate - 50 - Comm. on the Judiciary, 97th Cong., 2d Sess. 80 (1982) (remarks of Sen. Dole), 128 Cong. Rec. H3841 (daily ed. June 23, 1982) (remarks of Rep. Sensenbrenner, with which Rep. Edwards concurs). In short, nothing in the statute itself, in the legislative history of the recent amendment of Section 2, in the case 12 law of collateral estoppel, or in the 12 There are four criteria that must be established before the doctrine of col lateral estoppel can be invoked. 1) The issue sought to be precluded must be the same as that involved in the prior liti gation, 2) the issue must have been actually litigated, 3) it must have been determined by a valid and final judgment, and 4) the determination must have been essential to the judgment . • ~generally, Wright, Miller and Cooper, Federal Practice and Procedure: Jurisdiction § 4416 et. ~;Allen v. McCurry, 449 U.S. 90 (1980}""":" The party asserting estoppel has the burden of proving all elements of the doctrine, especially t.he existence of a full and fair opportunity to litigate the issue. Id. at 95. Matter of Merrill, 594 F.2d 1064-;-1066 (5th Cir. 1979); Kremer v. Chemical Construction Corporation. 456 U.S. 461, 481 (1982): "Redetermination of issues is warranted if there is reason to doubt the quality extensiveness, or fairness of pro- - 51 - treatment of other administrative agency determinations where there is a statutory 1 3 right t o trial ~ ~' supports appellant- cedures followed in prior litigation." Even if all criteria are satisfied, relitigation may be appropriate because of the potential import of the first determination on the public interest or the interest of persons not parties to the original action. Porter and Dietsch, Inc. v. F.T.C., 605 F.2d 294, 3Do· (7th Cir. 1979) cert. denied, 445 U.S. 9 s a· c 1 9 7 9 ) • 13 This Court has held that a Title VII plaintiff's statutory right to a trial de novo is not foreclosed by submission of the CTaim to final arbitration, Alexander v. Gardner-Denver Companx, 415 U.S. 36 (1974), even though the complainant is a party to the administrative proceeding. Similarly, a federal employee whose employment discrimination claims were rejected by the Veterans Administration and the Civil Service Commission Board of Appeals and Review was nevertheles entitled to a trial de novo. Chandler v. Roudebush, 425 U.S. 84D""l'T976). Moreover, although admissible as evidence at the de novo proceeding, the agency decision wasentitled only to the weight deemed appropriate by the court. Alexander v. Gardner-Denver, 415 U.S. at 59-60. - 52 - S I claim that Section 5 preclearance precludes subsequent litigation of a violation under section 2. The nature of the administrative preclearance process itself exposes the vacuity of appellants' preclusion argu- ment. Appellants concede that the Section 5 review was conducted ex parte as a 14 nonadversary proceeding. There was no formal hearing consistent with fundamental 14 Jurisdictional Stat.ement at 16: "In fact, these districts were designed by coun~el and legislative drafters in daily contact with the Assistant Attorney General and members of the . staff of the Civil Rights Division." Indeed, other than this admission, the record is devoid of the reasoning or facts behind the Assistant Attorney General's ultimate preclearance decision. ln his preclearance letters, the Assistant. Attorney General never even mentions House District 8 and there is absolutely nothing in the record to support appellants' claim that the Attorney General determined "that it was in the best interests of the black voters not to diminish black influence in (Senate) District 6 in order to 'pack' (Senate) District 2." J.S. at 16-17. • - 53 - 15 notions of due process, and, unlike appellants, who were in "daily contact with the Assistant. Attorney General," J.S. at 16, appellees could not be and were not parties to the preclearance determination. Nor were appellees entitled to appeal or _ in any form seek judicial review of the preclearance decision. Morris v. Gres-:- sette, 432 U.S. 491 (1977). 15 The Justice Department Section 5 regulations provide that a covered juris diction must submit voting changes for preclearance review, but the reviewing official is not required to publish an opinion nor set forth reasons for the preclearance decision. See 28 CFR §51. 41. The · procedure is so informal that a determination may be made without the Justice Department taking any definitive action at all. If a state submits a plan and the Department takes no action within sixty days, the plan is presumptively approved. Id. A conference may be requested by the submitting jurisdiction on reconsideration of an objection, 28 CFR §51.46, but none is required initially. Parties opposing preclearance have no formal role in the deliberations. • - 54 - Morris v • Gressette arose in the context of a claim that private plaintiffs had a right to judicial review of the administrative preclearance process. In holding t.hat private parties had no such right to inquire into the reasoning behind the Attorney General's decision, to review the process by which he considered the change or to appeal directly his determi ~ation, this Court was persuaded that Congress had provided, through the statu tory grant of a t.rial ..s!!, ~' for black voters who disagree with the preclearance decision and who have no other means of protecting their interests. Morris v. Gressette, 432 U.S. at 506-07. Indeed, this is directly stated in the only other case, Donnell v. United States, 682 F.2d 240, 247 (D.C. Cir. 1982), which appellants cite to support their claim of pre-emption. Neither Donnell nor Morris v. Gres- - 55 - sett ~ supports the appellants' preclusit:Jn arguments. Indeed, they affirmatively recognize that the Attorney General may have interests other than the interests of minority voters and, more importantly, that the voters' interests are explicitly protected by the statutory right to a trial de novo. Thus, the District Court properly found the Attorney General's preclearance determination "has no issue preclusive (collateral estoppel) effect in this action." (Citation omitted) J.S. at 54a. The decision below should be affirmed summarily. - 56 - CONCLUSION • Because appellants did not raise any substantial question which requires further argument, the Court should affirm the judgment of the District Court or dismiss the appeal. Respectfully submitted JULIUS CHAMBERS *LANI GUINIER NAACP Legal Defense and Educational Fund, Inc. 99 Hudson Street 16th Floor New York, New York 10013 (212)219-1900 LESLIE J. WINNER Ferguson, Watt, Wallas, and Adkins, P.A. 951 South Independence Boulevard Charlotte, North Carolina 28202 (704) 375-8461 Attorneys for Appellees *Counsel of Record Hamilton Graphics, lnc.-200 Hudson Street, New York N.Y.-(212) 966·4177 NAACP0002 NAACP0003 NAACP0004 NAACP0005 NAACP0006 NAACP0007 NAACP0008 NAACP0009 NAACP0010 NAACP0011 NAACP0012 NAACP0013 NAACP0014 NAACP0015 NAACP0016 NAACP0017 NAACP0018 NAACP0019 NAACP0020 NAACP0021 NAACP0022 NAACP0023 NAACP0024 NAACP0025 NAACP0026 NAACP0027 NAACP0028 NAACP0029 NAACP0030 NAACP0031 NAACP0032 NAACP0033 NAACP0034 NAACP0035 NAACP0036 NAACP0037 NAACP0038 NAACP0039 NAACP0040 NAACP0041 NAACP0042 NAACP0043 NAACP0044 NAACP0045 NAACP0046 NAACP0047 NAACP0048 NAACP0049 NAACP0050 NAACP0051 NAACP0052 NAACP0053 NAACP0054 NAACP0055 NAACP0056 NAACP0057 NAACP0058 NAACP0059 NAACP0060 NAACP0061 NAACP0062 NAACP0063 NAACP0064 NAACP0065 NAACP0066 NAACP0067 NAACP0068 NAACP0069