First Set of Stipulations of Fact; General Assembly of North Carolina Bill 1428

    No.83-1968 

IN THE 

~uprruw OJnurt nf tqr llnitrb ~tatrn 
OCTOBER TERM, 1985 

LACY H. THORNBURG, et al., 
Appellants, 

v. 

RALPH GINGLES, e,t al., 
Appellees. 

On Appeal from the United States District Court 
for the Eastern District of North Carolina 

BRIEF OF AMICUS CURIAE 
THE WASHINGTON LEGAL FOUNDATION 

IN SUPPORT OF APPELLANTS 

DANIEL J. POPEO 

GEORGE C. SMITH * 
WASHINGTON LEGAL FOUNDATION 

1705 N Street, N.W. 
Washington, D.C. 20036 
(202) 857-0240 

Attorneys for Amicus Curiae 
Washington Legal Foundation 

* Counsel of Record 

WIJ .. SON • EPES PRINTING Co., fNc. - 789-0096 ·WASHINGTON, D.C. 20001 





QUESTIONS PRESENTED 

1. Whether the Voting Rights Ad requires states. to 
devise election dis.tricts and procedures which, wherever 
the concentration of minority voters is sufficiently large, 
will enable minorities to dictate election outcomes if they 
adhere to minority bloc voting. 

2. Whether the district court in this case relied ex­
cessively on a Senate Judiciary Committe'e Report's pro­
nouncements as to the meaning of Section 2 of the Voting 
Rights Act, to the exclusion of the language of the stat­
ute itself. 

3. Whether the failure of non-minority citizens to vote 
in sufficient numbers for minority candidates in a given 
jurisdiction may constitute grounds for holding that ju­
risdiction in violation of Section 2 of the Voting Rights 
Act. 

4. Whether the district court erred in holding that 
there is a degree of polarized voting sufficient to sustain 
a violation of the Act whenever the results of a district's 
elections would differ depending upon the race of the 
voters whose votes were counted. 

(i) 





TABLE OF CONTENTS 
Page 

QUESTIONS PRESENTED · · - --~ -- -·· · ·· · · ·· ·· ··· · ··· -- --------- ------- i 

TABLE OF AUTHORITIES···············-·····················-·--·-· v 

INTERESTS OF AMICUS CURIAE ··-··-···-······-····-·····-·- 1 

STATEMENT OF THE CASE ····-----····--··-············-·------ -- 3 

SUMMARY OF ARGUMENT ·········--·······-----·-··· ··········-- 3 

ARGUMENT ·················-------·------------------------------------------------ 4 

I. THE DISTRICT COURT ERRED IN INTER­
PRETING THE VOTING RIGHTS ACT AS 
THOUGH IT GUARANTEES MINORITIES 
"SAFE" DISTRICTS ENABLING THEM TO 
CONTROL ELECTION OUTCOMES BY RA-
CIAL BLOC VOTING ----------------- ------ --·····------------- 6 

A. The Court Improperly Discounted a Proven 
Record of Minority Political Access and Elec-
tion Success --····-··············--· -----···· ··· ------···--·-------· 6 

B. The District Court Erroneously Applied the 
Act as though It Guarantees Minorities a 
Minimum Share of Political Power, as Op-
posed to Equal Opportunity ·-- -------------------------- 9 

C. The Court Applied a Clearly Erroneous In-
terpretation of Illegal Vote Dilution ·····---------- 11 

D. The District Court Erred in Interpreting the 
Controversial Senate Judiciary Committee 
Report as Though It Were the Statute____________ _ 13 

II. THE DISTRICT COURT ERRED IN ITS 
CRITICAL RELIANCE ON THE FACTOR OF 
"POLARIZED VOTING", WHICH IS TOTAL­
LY INVALID AS AN INDICATOR OF VOT-
ING RIGHTS ACT VIOLATIONS·-·-- ·--· ·--····--··-· 18 

(iii) 



iv 

TABLE OF CONTENTS-Continued 
Page 

A. Polarized Voting is a Prevalent American 
Voting Pattern--------------------------------------------------- 19 

B. The Court Applied an Unreasonable Stand­
ard in Finding That a "Substantively Sig-
nificant" Degree of Polarized Voting Existed.. 23 

CONCLUSION ·-------------------- ----·---------------··--------------------------- 26 



v 

TABLE OF AUTHORITIES 

Cases Page 

Anderson v. Martin, 375 U.S. 399 (1964) ----------------- 12, 25 
Collins v. City of Norfolk, 605 F.Supp. 377 (E.D. 

Va. 1984) ------------------------------------- ---------------------------_4, 20, 24 
Davidson v. Gardner, 370 F.2d 803 (6th Cir. 1967) __ 16 
Dove v. Moore, 539 F.2d 1152 (8th Cir. 1979) ___ _____ 7-8 
In Re Evans, 452 F.2d 1239 (D.C. Cir. 1971), cert. 

denied, 408 U.S. 930 (1971) --- --- ------------------ --- ------- 16 
General Building Contractors Association, Inc. v. 

Pennsylvania, 102 S.Ct. 3141 (1982) ------------ ------- -- 2 
Hardin v. Kentucky Utility Commission, 390 U.S. 

1 (1968) -- -- ---------------------------------------------------- --- --------- 17 
Jones v. City of Lubbock, 727 F.2d 364 (5th Cir. 

1984) --- --- --------- ---------------- ------------------------------------- ----- 18, 21 
Jordan v. City of Greenwood, 534 F.Supp. 1351 

(D.Miss. 1982) ---------------- ----------------------------------------- 19 
Kirksey v. City of Jackson, 633 F .2d 659 (5th Cir. 

1981) ---- ------ ----- ----------------------------- ----- ---------------12-13, 19, 25 
Memphis Firefighters v. Stotts, 104 S.Ct. 2576 

( 1984) ------- --------- -------------------------------------------- ------------ 2 
National Association of Greeting Card Publishers 

v. U.S. Postal Service, 103 S.Ct. 2717 (1983) ______ 17 
Porter v. Murray, 69 F.Supp. 400 (D.D.C. 1946) ____ 16 
Seamon v. Upham, 536 F.Supp. 931 (E.D.Tex. 

1982), aff'd. sub nom Strake v. Seamon, 105 S.Ct. 
63 (1984)__________ __________________ _________________ __________ ___ _________ 7, 11 

Terrazas v. Clements, 581 F.Supp. 1329 (D,Tex. 
1984) ·-------------------- --------------------------------------------------7, 11, 24 

United States v. Marengo County Commission, 731 
F.2d 1546 (11th Cir. 1984) ------- ----------------------------- 18 

United Steelworkers v. Weber, 444 U.S. 193 
( 1979) ---- ----- --- -- --------------------------------------------------------- 2 

White v. Regester, 412 U.S. 755 (1973) ___________________ 10 

Constitutional and Statutory Authorities 

42 U.S.C. Sec. 1971 (b)------------------------------------------------- 13 
42 U.S.C. Sec. 1973 ------------------------------ ---------------- --------Passim 



vi 

TABLE OF AUTHORITIES-Continued 

Legislative History Page 

H.R. 3112 -------------------------------------------------------------------- 15 
S. Rep. No. 97-417, 97th Cong., 2d Sess. (1982) ____ __ 14-18 

Miscellaneous Authorities 

Levy and Kramer, The Ethnic Factor: How Amer­
ica's Minorities Decide Elections (Simon & 
Schuster, 1972) --------------------------------------------------------- 22 

K. Davis, Administrative Law Treatise Sec. 3A.31 
(1970 Supp.) ------------------------------------------------------------ 16 

Election '84 Handbook, National Journal (Oct. 29, 
1983) ------------------------------------------------------------------------- 5, 22 

Cavanagh and Foster, Election '84, Report #2, 
Jesse Jackson's Campaign: The Primaries and 
Caucuses, Table 4 (Joint Center for Political 
Studies, 1985) ·------------------ ----------------·----------------------- 20 



IN THE 

§uprrmr Q1nurt nf tqr llluitr~ §tutrn 
OCTOBER T:ERM, 1985 

No. 83-1968 

LACY H. THORNBURG, et al., 
Appellants, 

v. 

RALPH GINGLES, et al., 
Appellees. 

On Appeal from the United States District Court 
for the Eastern District of North Carolina 

BRIEF OF AMICUS CURIAE 
THE WASHINGTON LEGAL FOUNDATION 

IN SUPPORT OF APPELLANTS 

INTERESTS OF AMICUS CURIAE 

The Washington Legal Foundation ( WLF or Founda­
tion) is a national nonprofit public interest law center 
that engages in litigation and the administrative process 
in matters affecting the broad public interest. WLF has 
more than 80,000 members located throughout the United 
States, including in the State of North Carolina, whose 
interests the Foundation represents. 

This brief is filed with the written consent of all parties. 



2 

WLF focuses its litigation efforts on cases of nation­
wide significance affecting the liberties and values of its 
members. The Foundation has been especially active in 
cases challenging misguided and overbroad applications 
of federal civil rights laws. For example, WLF has filed 
amicus briefs with this Court in such cases as Memphis 
Firefighters v. Stotts, 104 S.Ct. 2576 (1984); General 
Building Contractors Association, Inc. v. Pennsylvania, 
102 S.Ct. 3141 (1982); and United Steelworkers v. 
Weber, 444 U.S. 193 ( 1979) . In these cases, WLF has 
consistently pressed the view that the civil rights laws 
provide legal protection for all Americans and cannot be 
invoked to justify reverse discrimination or exacting rep­
arations from any class of citizens. 

In this case, WLF seeks to protect the interests of its 
members against a fundamental distortion of the federal 
Voting Rights Act. The decision on appeal here-and 
numerous other federal decisions of similar thrust-pur­
ports to guarantee preferred minority groups the right 
to demand "safe" election districts allowing them to dic­
tate election outcomes through racial bloc voting for 
minority candidates. In so holding, the district court 
would mandate a form of proportional representation by 
race which Congress expressly rejected in the 1982 VRA 
Amendments. 

Even more disturbingly, the decision elevates the com­
monplace phenomenon of "polarized voting" to a pivotal 
role in determining whether state redistricting plans vio­
late Section 2 of the VRA. After defining that concept 
in terms broad enough to apply virtually everywhere, 
the district court held that the persistence of polarized 
voting may condemn a state or locality to perpetual non­
compliance with the VRA. 

The court's interpretation of Section 2 in this case 
thus entails an ominous threat to the voting autonomy 
of nonminorities in countless jurisdictions; unless they 



3 

eliminate polarized voting (i.e., the common situation 
where whites tend to vote differently than blacks in rela­
tion to a candidate's race or his position on racial issues,) 
by voting compliantly for any minority candidate who 
appears on the ballot, their local election systems can be 
invalidated and enjoined by federal courts. 

WLF's brief will uniquely focus on the foregoing con­
cerns. In the briefs filed prior to the noting of probable 
jurisdiction, neither the North Carolina appellants nor 
the United States as amicus curiae challenged the very 
validity of polarized voting as an indicator of Section 2 
violations. This brief does so. Thus, WLF will present 
significant arguments which no existing party to this 
case is likely to press. 

STATEMENT OF THE CASE 

In the interests of brevity, the amicus curiae adopts 
the statement of the case set forth in the brief of the 
North Carolina appellants. 

SUMMARY OF ARGUMENT 

1. The district court misapplied Section 2 of the V ot­
ing Rights Act ( "VRA") in striking down the North 
Carolina redistricting plans. The court inexplicably dis­
regarded the convincing and dispositive proof that blacks 
in all the challenged districts had achieved effective 
access to the political process through demonstrated suc­
cess at the polls by black candidates. It erroneously 
assumed that the VRA requires that, whenever the 
state's minority population pool is large enough, some 
election districts must be fashioned so that minority 
voting blocs will always be able to dictate election results 
and assure the election of minority candidates. The court 
further erred in resting its decision upon the one-sided 
views of a non-controlling portion of the legislative his­
tory of the 1982 VRA amendments, rather than upon 
the language of the statute itself. 



4 

2. The court's decision was based upon its erroneous 
view that the persistence of racially polarized voting out­
weighs such positive evidence as proven black access to 
key elected posts in determining whether there is a 
Section 2 violation. In ruling that a district must elim­
inate polarized voting to be sure of compliance with 
the VRA, the court unconstitutionally penalizes a local 
government simply because its citizens refuse to con­
form their voting behavior to the ideological predilec­
tions of a federal court. Further, even if polarized vot­
ing were a valid litmus test for VRA compliance, the 
court applied a grossly over-inclusive definition of the 
concept which goes much farther than the Act's stand­
ards of equal access and equal opportunity require. The 
district court's interpretation and application of the 
polarized voting factor is ultimately incompatible with 
the constitutional right of all citizens to vote as they 
please, for any reason. 

ARGUMENT 

Preliminary Statement 

This case involves a fundamental and dangerous dis­
tortion of the principles which originally motivated the 
Voting Rights Act of 1965, 42 U.S.C. Sec. 1973 (here­
after referred to as "VRA" or the "Act"). 

The purpose of the VRA was to guarantee to all Amer­
icans, regardless of race, the right, the opportunity, and 
the freedom to vote for the candidates of their choice. 

Notwithstanding the laments of those who thrive by 
cultivating grievances, the VRA has succeeded. Black 
voter registration and black voting have grown enor­
mously since 1965, and in an increasing number of juris­
dictions the percentage of blacks registered to vote and 
turning out to vote now exceeds that of whites.1 Poll 

1 See., e.g., Collins v. City ·of Norfolk, 605 F.Supp. 377, 385 
(E.D.Va. 1984) (showing significantly higher rates of voter regis-



5 

taxes, literacy tests, and other obstacles to black political 
participation and voting have all been dismantled. Blacks 
are running for and capturing elective offices in un­
precedented numbers throughout the Nation-including 
in the Deep South. 

But some litigious elements are not content with equal 
access to the political process and equal opportunity to 
vote for the candidate of one's choice. Encouraged and 
fomented by sweeping court interpretations of the 1982 
amendments to the VRA, the appellees and others are 
now claiming a "right" that was never contemplated by 
Congress in passing that legislation: the mandatory 
formation of "safe" minority election districts wherever 
a minority population base is large enough to allow for 
such districts to be devised. 

The decision on appeal here adopts that same dis­
torted approach to the curiously evolving judicial concept 
of "voting rights". It holds that election districts must 
be endlessly shaped and reshaped until they at last pro­
duce a sufficiently commanding majority of "minority" 
voters. Moreover, it places dispositive significance on 
the misleading and misunderstood concept of "polarized 
voting" in deciding whether a jurisdiction is in viola­
tion of the VRA. Under the district court's view, only 
those jurisdictions where a majority of white voters con­
sistently vote for black candidates (whatever their views 
or qualifications) can avoid the stigma of "polarized 
voting" and a judicial determination of non-compliance 
with the VRA. 

Neither the VRA nor its 1982 amendments authorized 
the courts to dictate the fashioning of "safe" districts for 
minorities, or to condemn jurisdictions for violating the 

tration and turnout among blacks than among whites in Norfolk, 
Virginia.) In the 1982 Congressional elections, blacks turned out 
to vote at a higher rate than whites in nine states. See National 
Journal, Election '84 Handbook, p. 2208 (Oct. 29, 1983). 



6 

VRA merely because the majority of white voters in 
those jurisdictions have not generally voted for black 
candidates. Yet that is exactly how the court below has 
applied the VRA to the North Carolina communities at 
issue in this case. 

This Court should emphatically reverse the district 
court's decision and thereby prevent the VRA from being 
used to perpetuate racial division at the polls for years 
to come. 

I. THE DISTRICT COURT ERRED IN INTERPRET­
ING THE VOTING RIGHTS ACT AS THOUGH IT 
GUARANTEES MINORITIES "SAFE" DISTRICTS 
ENABLING THEM TO CONTROL ELECTION OUT­
COMES BY RACIAL BLOC VOTING 

A. The Court Improperly Discounted a Proven Record 
of Minority Political Access and Election Success 

In holding that the North Carolina redistricting plans 
violated Section 2 of the Voting Rights Act ( "VRA"), 
the district court completely lost sight of that legisla­
tion's proper objective. 

The VRA does not compel the creation of electoral 
districts or systems which will allow minority bloc vot­
ing to dictate the outcome of elections wherever there 
are sufficient raw numbers of minorities from which 
to fashion such districts. Rather, the Act requires only 
that electoral districts must not be designed to prevent 
minorities from enjoying equal access to the political 
process and an equal opportunity to elect representatives 
of their choice. 42 U.S.C. Sec. 1973 (b). 

Under that legitimate standard, the challenged North 
Carolina districts easily pass muster. The record con­
tains comprehensive evidence proving that minority vot­
ing has had a telling effect on the political power struc­
ture and that black candidates have enjoyed substantial 
success in key election races. J.S. App. 34a-37a; 47a. 



7 

But the District Court did not apply the "equal oppor­
tunity" standard as set forth in the statute. Instead, it 
applied a standard that can only be satisfied if the re­
districting plan essentially guarantees that minority 
candidates will be elected in proportion to the minority 
share of the population. Yet Congress explicitly rejected 
such a standard in amending Section 2, 42 U.S.C. Sec. 
1973 (b). And the courts have since made it clear that 
"no group is entitled ... to have its political clout maxi­
mized." Seamon v. Upham, 536 F.Supp. 931, 945 (E.D. 
T'ex. 1982), aff'd sub nom Strake v. Seamon, 105 S.Ct. 
63 ( 1984) [emphasis added]. 

Various decisions have recognized that there can be 
no cognizable violation of Section 2 in a district where 
minorities have achieved substantial success in gaining 
access to key elective offices and political posts. E.g., 
Dove v. Moore, 539 F.2d 1152 (8th Cir. 1979). A find­
ing of consistently adverse electoral results for minority 
candidates is a necessary, though not a sufficient, ele­
ment of a Section 2 claim under the results test. See 
Seamon v. Upham, supra; Terrazas v. Clements, 581 
F.Supp. 1329 (D.Tex. 1984). 

Here the districts in question are all characterized by 
records of proven minority access to influential elective 
posts. The election of black representatives to these posi­
tions demonstrates that-contrary to the district court's 
ruling-a "safe" black district in terms of raw popula­
tion alignments is simply not necessary for blacks to par­
ticipate effectively in the political process or to elect 
representatives of their choice, Terrazas v. Clements, 
supra, 581 F.Supp. at 1354. 

In Durham County, for instance, one of the county's 
three representatives to the House has always been 
black since 1973-even though less than 29.% of Dur­
ham County's registered voters are black. J.S. App. 35a. 
Black representation has also been substantial, and often 
in excess of what proportional representation would 



8 

produce, on the County Commission, the County Board of 
Elections, and the County Democratic Party leadership. 
This degree of proven minority access to key political 
offices is in itself incompatible with a claim of unlawful 
vote dilution . . Dove v. Moore, 539 F.2d at 1153-55. 

The same healthy degree of access to the political 
process is established beyond question in the other dis­
tricts here in issue. The City of Charlotte has a black 
mayor, even though the city population is only 31 o/o black. 
I d. at 35a. In Forsythe County, two out of five ( 40 o/o) 
members of the House delegation are black, even though 
only 22% of the county voting age population is black. 
ld. In Wake County, where only 20% of the voting age 
population is black, a black candidate received the high­
est vote total in a 15-man Democratic primary for the 
District House seats and was subsequently elected to 
the county's six-member House delegation. And two out 
of the eight ( 25% ) elected District Judges in Wake 
County are black. 

These facts are simply incompatible with the elements 
of a Section 2 violation under the VRA Amendments of 
1982. Under the plain language of the statute, a viola­
tion can only be established by proof that: 

1. The political processes leading to nomination or 
election are not equally open to participation by members 
of the complaining minority, in that 

2. its members have less opportunity than other mem­
bers of the electorate to participate in the political proc­
ess and to elect representatives of their choice, provided 
that 

3. there is no right to have members of a minority 
elected in numbers equal to their proportion in the popu­
lation. 

The foregoing facts confirm that blacks do enjoy full 
and fair access to the political processes in the challenged 



9 

districts and that they have enjoyed at least equal op­
portunity to elect representatives of their choice. Were 
this not so, it is simply implausible that the Forsythe 
County House delegation would be 40 o/o black (nearly 
double what proportional representation would produce) ; 
that the Durham County House delegation would have 
been one-third black since 1973; or that the City of 
Charlotte would have a black mayor. 

The court below, however, was -wholly indifferent to 
this evidence of extensive black access, participation, and 
success in the political processes of the districts in issue. 
It was less concerned with the hard fact that blacks were 
winning major elections at all levels than it was with 
lamenting upon the historical consequences of "past dis­
criminatory" practices or the abstract implications of so­
called "polarized voting". And it was so preoccupied 
with the misbegotten notion that racial bloc voting by 
minorities 2 must be allowed to control election outcomes 
that it failed to recognize that blacks were already en­
joying full and fair participation in the election processes 
without the divisive racial gerrymandering demanded by 
this decision. 

B. The District Court Erroneously Applied the Act as 
though It Guarantees Minorities a Minimum Share 
of Political Power, as Opposed to Equal Opportunity 

The District Court set an erroneous course from the 
outset of its decision, when it stated as follows (J.S. App. 
at 14a) : 

The essence of racial vote dilution in the White v. 
Regester sense is this: that primarily because of the 

2 It is highly revealing that the district court's approach to 
voting rights is premised on the view that bloc voting by racial 
minorities is to be expected and accommodated ( i.e., by gerry­
mandering districts to allow such bloc voting to control elections), 
while bloc voting by racial majorities is considered so pernicious 
that it alone may give rise to a violation of the VRA. J.S. App. 
14a-15a, 41a, and 47a. 



10 

interaction of substantial and persistent racial po­
larization in voting patterns (racial bloc voting) 
with a challenged electoral mechanism, a racial mi­
nority with distinctive group interests that are ca­
pable of aid or amelioration by government is effec­
tively denied the political power to further those in­
terests that numbers alone would presumptively give 
it in a voting constituency not racially polarized in 
its voting behavior. [citation omitted; emphasis 
added]. 

This statement bears careful scrutiny, for it states the 
critical premise for the court's ultimate decision. It is a 
statement that the VRA guarantees minorities the right 
to electoral mechanisms which will invariably maximize 
the impact of minority bloc voting, while it effectively 
condemns non-minority voters for failing to embrace mi­
nority candidates (i.e., "persistent polarization"). This 
is a false and unconstitutional interpretation of the 
VRA. 

Initially, the court's statement glibly asserts that the 
pivotal decision in White v. Regester, 412 U.S. 755 
( 1973) , had emphasized racially polarized voting as a 
key element of unlawful racial vote dilution. But this 
critical point is completely false. 

The true holding of White is highly important to cur­
rent Section 2 analysis, because the single po,int on which 
most Congressional elements agreed in passing the 1982 
amendments was that they were intended to codify the 
principles of decision in White v. Regester. Yet one will 
search in vain for any mention (much less any signifi­
cant mention) of polarized or racial bloc voting in White 
v. Regester's discussion of the various elements of a vote 
dilution claim under the VRA. See 412 U.S. at 766-67. 
In fact, the source of the district court's heavy reliance 
on the polarized voting factor was not White v. Regester 
at all, but rather the inaccurate portrayal of White v. 
Regester set forth in a controversial segment of the leg-



11 

islative history of the Act's 1982 amendments (see Point 
I.D., infra). 

More importantly, the district court interpreted Sec­
tion 2 as though it compels states to devise electoral mech­
anisms which will guarantee the election of minority can­
didates by facilitating minority bloc voting. That is, if 
it is at all possible to fashion a district with enough 
blacks to always guarantee the election of the "black" 
candidate by their "raw numbers alone", then the court 
below would compel the state to do so. 

That view of the VRA is invalid and unsound. As re­
cently stated by the court in Terrazas v. Clements, su-­
pra, 581 F.Supp. at 1359-60: 

In the absence of a denial of access, or discrimina­
tory intent, the failure to consolidate the [minority] 
population may constitute a less advantageous polit­
ical result, but not an unlawful result. [emphasis 
added]. 

The court below invalidated the North Carolina re­
districting plans merely because they failed to provide a 
perfect arrangement for preemptive racial voting by mi­
norities. That was reversible error, because the VRA 
simply does not require the states to "maximize the politi­
cal clout" of any racial, religious, or ethnic group. Sea­
mon v. Upham, supra, 536 F.Supp. at 945. All that the 
Act requires is equal access to the political process-and 
the creation of "safe" minority districts is simply not a 
prerequisite to equal access. Terrazas v. Clements, supra, 
581 F.Supp. at 1354. 

C. The Court Applied a Clearly Erroneous Interpreta­
tion of Illegal Vote Dilution 

The overinclusive concept of illegal vote dilution relied 
on by the district court completely distorts the principle 
of equal political access which underlies the Voting Rights 
Act. Equal opportunity for minorities to participate in 
the elective process does not--cannot-include any re-



12 

quirement that non-minorities must subordinate or com­
promise their constitutional right to vote for whomever 
they please, and for whatever reason. Kirksey v. City of 
Jackson, 633 F.2d 659, 662 (5th Cir. 1981); Anderson 
v. Martin, 375 U.S. 399, 402 (1964) . 

. Yet the district court tied -its holding in this case to 
the following extraordinary interpretation of vote dilu­
tion under the VRA: 

[T] he demonstrable unwillingness of substantial 
numbers of the racial majority to vote for any mi­
nority race candidate or any candidate identified 
with minority race interests is the linchpin of vote 
dilution by districting. [J.'S. App. 14a-15a.] 

The court made its position still clearer when, after 
acknowledging that blacks have made substantial progress 
in gaining access to political power in the North Caro­
lina districts, it emphasized that this progress 

. . . has not proceeded to the point of overcoming 
still entrenched racial vote polarization, and indeed 
has apparently done little to diminish the level of 
that single most powerful factor in causing racial 
vote dilution. [ld. at 47a.] 

Thus, the district court repeatedly emphasized its view 
that the most critical component of the violations in this 
case--and the "single most powerful factor'' in finding a 
vote dilution violation-was the failure (or "unwilling­
ness") of white citizens to vote in essentially the same 
way as black citizens. When one reads between the lines 
of the foregoing pronouncements, it is evident that the 
court is issuing a none .. too-subtle warning to North Caro .. 
lina's white voters. The warning is that unless they start 
to vote for minority candidates (regardless of the candi­
date's individual merit or qualities) in "substantial num­
bers", the court will continue to hold that there is "racial 
vote dilution" in their districts. And as long as the court 
holds that view, it will continue to invalidate and enjoin 
the district's elections. 



13 

This constitutes a profound distortion of the .true goals 
and principles of the Voting Rights Act. The district 
court blithely dismissed hard evidence that blacks do en­
joy equal access to .the political/elective processes (e.g., 
40% representation on House delegation of district com· 
posed of only 22 % black voters) and focused instead on 
the allegedly culpable behavior of white vo.ters in failing 
to alter .their voting preferences in favor of minority 
candidates. 

This crabbed and punitive approach to voting rights 
law abandons the basic element that Section 2 of the 
VRA can only be violated by the discriminatory prac­
tices and policies of governments; Section 2 cannot be 
violated by citizens in the exercise of their absolute First 
Amendment right to vote for the candidate they prefer, 
for whatever reason. Kirksey, supra, 663 F.2d at 662.3 

The district court's opinion erred in failing to grasp this 
distinction. 

D. The District Court Erred in Interpreting the Con­
troversial Senate Judiciary Committee Report as 
Though It Were the Statute 

The district court was able to reach its erroneous con­
clusions only by misinterpreting Section 2 of the Act. 
Its misinterpretation was hardly surprising, however, be­
cause the court never even attempted to interpret the 
actual language of the statute itself. Instead, it relied 
almost exclusively upon selected portions of a Senate Com-

3 The VRA itself, 42 U.S.C. Sec. 1971 (b), prohibits any form of 
intimidation or coercion intended to interfere with any person's 
right "to vote as he, may choose." [emphasis added] But the 
court's admonition that the racial majority's "entrenched" failure 
to vote for minority candidates may result in a violation of Section 2 
is itself a form of coercion or intimidation intended to alter white 
voting behavior. It is not farfetched to argue that the court's 
ominous warnings could themselves violate the VRA's prohibition 
of intimidation or coercion, were it not for judicial immunity. 



14. 

mittee Report.4 That report re·flected the views of only 
a modest majority of the Senate Judiciary Committee, 
whereas the enacted statute reflected a complex compro­
mise between a wide variety of factions in the full Sen­
ate and the full House, as well as the views of the 
President. 

The district court's slavish adherence. to the one-sided 
observations of the Senate Committee Report is totally 
unjustifiable under black letter rules of statutory inter­
pretation-but it is understandable in one significant 
respect. 

Only by treating the Committee Report as though it 
were the definitive authority on amended Section 2 could 
the court possibly justify its rigid application of the Re­
port's so-called "nine factors" test (including "polarized" 
voting) as the definitive standard for determining viola­
tions of Section 2. See S.Rep. at 28-29. And only by 
placing such exaggerated reliance on the Committee Re­
port's "nine factors" could the court find a violation in 
the North Carolina districts at issue. For the actual stat­
utory language of Section 2 nowhere mentions such open­
ended factors as "polarized voting", minority employment 
conditions, or political "responsiveness"-and the 1982 
amendments would never have passed the full Senate or 
been signed by the President had such controversial and 
divisive factors been explicitly incorporated in the statute. 

The ultimate language of the 1982 amendments to Sec­
tion 2 was indeed a compromise of conflicting viewpoints. 
But the Senate Judiciary Committee Report does not even 
begin to reflect the diverse elements of that multi-partite 

4 S.Rep. No. 97-417, Report of the Senate· Judiciary Committee on 
S. 1992, 97th Cong., 2d Sess., ordered to be printed May 25, 1982 
(hereafter cited as "S.Rep."). Senators Thurmond, Hatch, Laxalt, 
Dole, Grassley East, and Denton all found it necessary to append 
"additional", "supplemental", or dissenting views to the Committee 
Report. 



15 

compromise. Instead, it reflects only the one-sided aspira~ 
tions of a faction of Judiciary Committee Senators who 
favored the most expansive interpretation of Section .2 . 
they could promulgate without killing the legislation 
altogether. 

The earlier House-passed bill (H.R. 3112), which was 
subsequently introduced verbatim in the ,Senate by Ken­
nedy and Mathias, had raised serious concerns that it 
might ultimately require proportional representation of 
minorities among eiected officials. To eliminate these 
concerns, Senator Dole introduced the proviso which ex­
plicitly disclaims that the section creates any right to 
proportional representation. 

At the Senate mark-up of the bill, :Senator Dole articu­
lated the ·essence of the compromise which finally resulted 
(S. Rep. at 223) : 

[T]hat is the thrust of our compromise: equal ac­
cess, whether it is open; equal access to the political 
process, not whether they have achieved proportional 
election results. 

Only when President Reagan signaled that the Dole 
substitute was acceptable to him (i.e., that he would not 
veto the bill if passed) did the divergent forces and fac­
tions in the House and Senate come together to enact 
the legislation. Since the House simply adopted the Sen­
ate-passed Dole substitute without change, there' was no 
need for a Conference Committee~· and there was no 
Conference Committee Report reflecting the understand­
ing and intent of both Houses in passing the' b!Jl. 

Moreover, there is no plausible basis for viewing the 
Senate Judiciary Committee Report- which was intensely 
disputed even within that one committee of one ~ous~ 
as though it reflected the consensus understanding a:rid 
intent of both Houses, as well as that of the Preside:nt. 
It simply did not. It reflected only the subjective views 



16· 

of some eleven members of the eighteen-member Senate 
Judiciary .Committee.5 

But the court below approached the new statutory lan­
guage of Section 2 as though it were a mere afterthought 
to the controversial Senate Judiciary Committee Report. 
More specifically, the court judged the North Carolina 
districts by the standards of the Senate Report rather 
than by the standards of the statute. This violates the 
first principles of statutory construction and, in itself, 
is clearly reversible error. 

It goes without saying that committee reports are nei­
ther enacted by Congress nor signed by the President, 
and they simply do not have the force of law. In re 
Evans, 452 F.2d 1239 (D.C. Cir. 1971), cert. denied, 
-;108 u.s. 930 (1971). 

In Davidson v. Gardner, 370 F.2d 803, 828 (6th Cir. 
1967), the Sixth Circuit correctly stated the extremely 
limited a~hority of the report of a single house of Con­
gress with respect to interpreting the resultant statute: 

The House Report, in this regard, was not agreed 
to in the Senate Report, nor was any mention made 
of . it in the Conference Report. The report of a 
Committee of the House "does not go very jar to 
show the intention of a majority of bo·th houses of 
Congress." Porter v. Murray, 69 F.Supp. 400, 402 
(D.D.C. 1946). 

As further stated by the Court in Porter v. Murray, 
69 F.Supp. at 402., the report of a single committee of 
the Senate is distinctly "less persuasive on the issue of 
Congressional . intent than the report of a conference com­
mittee of both Houses". Accord: K. Davis, Administra-

· 5 It would have been a simple matter to list the "nine factors" 
Cited·by the Senate Report in the body of Section 2 itself. Why this 
was not done is obvious: the Senate would have never passed a 
bill with those highly controversial factors, and the President would 
never have signed it. 



17 

tive Law Treatise Sec. 3A.31 (1970 Supp.) at 175 ("The 
basic principle is quite elementary: The content of the 
law must depend upon the intent of bot h Houses, not of 
just one.") . 

The same point applies here with regard to the sulr 
jective views of the group of Judiciary Committee staff­
ers who drafted the tSenate Judiciary Committee Report. 
The Judiciary Committee Report was simply not a con­
sensual legislative document, and it provides a highly 
suspect and unreliable indicator of the intent of the whole 
Congress. 

Confronting a similar dispute over Congressional in­
tent and legislative history in Hardin v. Kentucky Utility 
Commission, 390 U.S. 1, 11 (1968), this Court stated: 

We think ... that the language of the Act in its 
final form is a compromise and that the views of 
those who sought the most restrictive wording can­
not control interpretation of the compromise version. 

Here, in the same vein, the views of those who sought 
the most expansive wording of Section 2 likewise cannot 
control interpretation of the compromise legislation. Yet, 
there can be no doubt that the Senate Judiciary Commit­
tee Report primarily reflects the views of Senators 
Mathias 6 and Kennedy-the same two senators who had 
originally introduced a Senate Bill which was identical 
to the far more liberal House-passed bill (H.R. 3112). 
Since neither the House nor the President ever approved 
or joined in the Senate Committee Report, it is totally 
invalid for courts to place such critical emphasis on its 
content in construing the statute. National Association 
of Greeting Card Publishers v. U.S. Pos,tal Servioe, 103 
S.Ct. 2717, 2731 n.28 (1983). 

The court's unquestioning reliance on the nine factors 
listed in the Committee Report has resulted in a rigid 

~ It was Senator Mathias who "filed the majority views of the 
Committee". S.Rep. at 1. 



18 

"factor-counting" method of judgment which completely 
obscures the original purposes of the Act. :Since the va­
lidity of the district court's decision depends on the con­
. trolling legitl force of the Committee Report's "nine fac­
tors", and since those "nine factors" are neither part of 
the statute nor a valid statement of its meaning, the de­
cision below should be reversed on that basis as well. 

II. THE DISTRICT COURT ERRED IN ITS CRITICAL 
RELIANCE ON THE FACTOR OF "POLARIZED 
VOTING", WHICH IS TOTALLY INVALID AS AN 
INDICATOR OF VOTING RIGHTS ACT VIOLA­
TIONS 

The decision below follows a disturbing trend in voting 
rights cases which places all but dispositive significance 
on the existence of racially polarized voting. See also 
United States v. Marengo County Commission, 731 F.2d 
1546, 1567 (11th Cir. 1984); Jones v. City of Lubbock, 
727 F.2d 364, 380-81 (5th Cir. 1984). In the Marengo 
County case, for example, the court stated that 

Some authorities suggest that a finding of discrimi­
natory result is compelled when plaintiffs show ra­
cially polarized voting combined with an absence of 
minority elected officials. [731 F.2d at 1574; em­
phasis added] 

The district court in this case all but confirmed that 
the persistence of polarized voting will always provide 
grounds for finding a violation of the VRA, even where 
minori ti.es have achieved considerable success in gaining 
important elective posts. (J.S. App. 47a). The court was 
explicit in holding that it views polarized voting as the 
"single most powerful factor" underlying violations of 
the VRA. ld . 

.It is painfully clear that the court's concept of po­
larized· voting, and its application of that concept to the 
facts of this case, was the "linchpin" of its ruling that 
N qrth · Carolina had violated the Act. But this consti-



19 

tutes an extremely dangerous and divisive interpretation 
of voting rights law: it requires injurious legal conse­
quences to be imposed unless an identified class of citi­
zens is willing to alter their voting behavior in a manner 
considered desirable by some federal court. 

The existence of polarized voting cannot lawfully pro­
vide grounds for holding that a state or local govern­
ment has violated VRA-least of all where (as here) 
there would be no grounds for finding a violation but for 
the polarized voting. At least in the United States, the 
manner in which the citizens of various races or ethnic 
groups exercise their voting franchise, individually or as 
groups, is utte·rly beyond the lawful power of a State or 
political subdivis.ion to control. Even if some citizens 
vote with discriminatory motives, those motives cannot 
be imputed to the State. Kirksey v. City of Jacksorn, 
supra, 663 F.2d at 662.; Jordan v. City of Greenwood, 
534 F.Supp. 1351, 1366 (D.Miss. 1982). 

Thus, it is legally and logically insupportable to allow 
the validity of a State's election system to depend upon 
how its citizens choose to vote. Yet that is exactly what 
the district court did in this case, under the rubric of 
"polarized voting". 

A. Polarized Voting is a Prevalent American Voting 
Pattern 

Given the tone of severe rebuke with which the court 
proclaimed that polarized voting persists in these North 
Carolina districts (J.S. App. 14a-15a, 47a), one would 
think that it constitutes some form of insidious, abnor­
mal departure from prevailing American voting patterns. 
On the contrary, it would be far more accurate to recog­
nize polarized voting for what it is: a prevailing norm 
in voting behavior throughout America. It therefore 
seems highly illogical-not to mention hypocritical-for 
the law to condemn a jurisdiction's election system pri-



20 
marily because its citizens manifest the same cross-racial 
voting discrepancies that characterize voters nationwide. 

Polarized voting means only that voters of different 
races, as groups, tend to vote differently from one an­
other in relation to the race of the candidates (or in re­
lation to the candidate's identification with minority is,.. 
sues). J.S. App. 38a-39a n.29; Collins v. City of Nor­
folk, supra, 605 F.Supp. at 377. In this case, the dis­
trict court adopted the view that there is a "substan­
tively significant" degree of polarization wheneve·r "the 
results of the individual election would have been dif­
ferent depending upon whether it had been held among 
only the white voters or only the black voters in the 
election." (J.S. App. 39a-40a). 

This means that whenever a majority of black vote·rs 
support a black candidate at the polls there will always 
be a "substantively significant" degree of polarized vot­
ing unless a majority of whites vote for the black candi­
date as well. 

The folly and inappropriateness of relying upon this 
view of "polarized voting" as an index of actionable vot,... 
ing rights discrimination is illustrated by the voting re­
sults of the 1984 Democratic Presidential primaries. 

In most of those primaries, the votes were divided be­
tween Walter Mondale and Gary Hart, who are white, 
and Jesse Jackson, who is black. As established by data 
compiled for the Joint Center for Political Studies (see 
Appendix A) ,7 the Democratic Presidential primaries in 
every one of the thirteen states surveyed were charac­
.terized by the most extreme form of racial polarization. 

In most of the primaries surveyed, Jackson received 
less than 5o/o of the white vote but over 75% of the black 

7 The data are taken from Thomas E. Cavanagh and Lorn S. 
Foster, Election '84, Report #2, Jesse Jackson's Campaign: The 
Primaries and Caucuses, Table 4 (Joint Center for Political 
Studies, · 1985). 



21 

vote. In New JerS<ey, Jackson received 86o/o of the black 
vote, but only 4o/o of the white vote; in New York, it was 
87% of the black vote, compared to only 6% of the 
white vote. In none of the surveyed primaries did Jack­
son received as much as 10o/o of the white vote, or less 
than 50, o/o of the black vote. 

Unless this Court is prepared to declare that the white 
membership of the Democratic party is composed of rac• 
ists from coast to coast, then thef'e must be something 
elS<e besides anti-black racial prejudice to explain the ex­
treme statistical polarization in the 1984 primary elec­
tion voting. That "something else" may well have bee!l 
Jesse Jackson's total lack of government experience; his 
status as a practicing clergyman; his controversial "ad­
ventures" in the field of foreign affairs; or a combina­
tion of such factors. But only the most irrational anal­
ysis could conclude that the low white vote for Jackson 
could accurately be attributed to white racism; there 
were simply too many other objective factors to explain 
a rejection of his Presidential candidacy. 

Similar considerations negate the significance of any 
legal conclusions drawn from the "polarized" voting pat­
terns found to exist in this case. Black candidates, who 
received little support from white voters may just as 
well have been rejected for their stands on the issues, 
their liberal ideology, or their personality as for their 
race. See Jones v. City o1 Lubbock, 730 F.2d 233, 234 
(5th Cir. 1984) (Higginbotham, J., concurring spe­
cially). 

The statistical "evidence" offered by appellees on "po­
larized" voting therrefore fails to come to grips with an 
inescapable fact: white voter rejection of a black can­
didate can be based upon a host of factors that have 
nothing at all to do with race. 

The 1984 Democratic primary statistics prove that 
even the most extreme degrees of racial polarization in 



22 

voting often bear no relationship at all to the kind of 
discrimination targeted by the VRA. The mere fact 
that overwhelming majorities of blacks vote for a given 
black candidate (such as Jesse Jackson) provides no 
grounds whatsoever to question the attitudes of whites 
who overwhelmingly reject the same candidate. T'o hold 
otherwise affronts both common sense and the equal pro­
tection clause. Yet the courts discredit the integrity of 
the white vote every time they invoke "polarized voting" 
to justify finding a violation of the VRA. 

One could give innumerable examples of how the con­
cept of "polarized voting" is a completely misleading 
indicator of conditions pertinent to genuine Voting 
Rights Act violations. Few elections were more racially 
polarized than the 1984 Presidential election; white 
voters overwhelmingly rejected the Mondale candidacy 
which black voters were all but unanimous in supporting. 
Yet no one could responsibly argue that this sharp diver­
gence in political attitudes along racial lines somehow 
taints the validity of our Presidential election system or 
that it unfairly dilutes the black vote. 

Moreover, even urban jurisdictions where black polit­
ical power is most vigorous-Chicago, Newark, Phila­
delphia, Atlanta, all of which have strong black mayors­
have been characterized by very high levels of racial 
polarization in voting.8 This again undercuts the notion 
that polarized voting prevents effective access to the 
political system. 

8 Black candidate Harold Washington received 369,340 black ward 
votes but only 19,252 white ward votes in winning the Chicago 
mayoralty election in 1982; some 245,845 whites voted against 
him. National Journal, Election '84 Handbook 2209 (Oct. 29, 1983). 
The black candidates elected mayor in Newark, New Jersey, Gary, 
Indiana, and Cleveland, Ohio, received 96%, 93%, and 96% of the 
black vote, respectively, as against only 16%, 10 %, and 15 % of the 
white vote. Levy and Kramer, The Ethnic Factor: How America's 
Minorities Decide Elections (Simon & Schuster, 1972). 



23 

Polarized voting is simply a contemporary character­
istic of American politics ; it reflects the reality of the 
widely diverse political preferences which are inevitable 
in a multi-racial democracy. But the existence of such 
diversity hardly provides legitimate grounds for con­
demning state and local election systems. 

The Act's guarantee of an equal opportunity for 
minorities to participate in the political process, 42 
U.S.C. Sec. 1973 (b), need not and cannot be construed 
to require any compromise of the constitutional guaran­
tee of the freedom to vote as one pleases. More to the 
point, the legality of a state's election system cannot be 
conditioned upon a shift of white citizens' votes to black 
candidates which will be sufficient to satisfy the expecta­
tions of three federal judges. 

B. The Court Applied an Unreasonable Standard in 
Finding that a "Substantively Significant" Degree 
of Polarized Voting Existed 

Even if polarized voting could be viewed as a relevant 
indicator of Section 2 violations, the district court ap­
plied an unreasonable and invalid standard in finding 
that it existed to a critical degree in this case. The 
court held that a "substantively significant" degree of 
polarization occurs whenever the election's outcome would 
be different depending on whether it was held among only 
black voters or only white voters (J.S. App. 39a-40a). 

This gives the polarization factor a scope and weight · 
far beyond what Congress contemplated in passing the 
1982 amendments. The statute itself nowhere mentions 
(let alone condemns) polarized voting. Even if Congress 
did intend for polarization to be treated as persuasive evi-· 
dence of a voting rights violation, it surely had in mind 
something far different than the kind of unexception­
able voting patterns examined in this case. Jurisdictions 
where black candidates are able to attract 50 % (Dis­
trict No. 36), 40:% (District No. 39), . 37o/o (District 



24 

No. 23) , 39~ o/o (District No. 21 ) , and 32. ro (District No. 
8) of the white vote-see J.S. App. 41a-46a- simply 
cannot be characterized as pockets of culpable resistance 
to the aspirations of black candidacies. Yet that is pre­
cisely what the district court's holding says about these 
North Carolina districts. 

As shown by the numerous successful black candi­
dacies in these districts and elsewhere throughout the 
nation, the foregoing levels of white voter support are 
more than sufficient to give black candidates effective 
aecess to the political system. 

For example, in Terrazas v. Clements, supra, 581 
F .Supp. at 1352, the minority (Hispanic) candidate for 
mayor received 90 o/o of the hispanic vote as compared 
to only 35 ro of the white vote. When the plaintiff's "ex­
pert" opined that this constituted significantly polarized 
voting for VRA purposes, the court flatly rejected his 
opinion. The court took the sounder view that polarized 
voting is only meaningful in the legal sense when it de­
prives the minority of equal opportunity to participate 
in the political process. Stressing that the Hispanics 
could form coalitions to gain greater political access than 
their raw numbers alone would give them, id. at 1354, 
the court ruled that the 90/ 35 variance in Hispanic/ 
anglo voting did not constitute a legally significant de­
gree of polarization. In sharp contrast, the court in this 
case considered even a 79,/50 black/ white variance to 
be a significant degree of polarization. ( J .S. App. 38a-
41a). See also Collins v. City of Norfolk, supra, 605 
F.Supp. at 388-89 (rejecting claims of polarized voting 
where levels of white support for black candidates were 
decidedly lower than in this case) . 

To hold that state election districts violate the VRA 
merely because a majority of their white voters do not 
succumb to judicial pressures and submissively vote for 
black candidates is not merely an unlawful distortion 
of the VRA. When a court coerces voters to surrender 



25 

their freedom of choice in order to appease the court's 
threats to condemn their election system .9 ' it violates the 
First Amendment-based guarantee of absolute freedom 
to vote as one chooses. Kirksey v. City of Jackson, supra, 
633 F.2d at 662; Anderson v. Martin, supra, 375 U.S. 
at 402. 

Under the district court's approach to polarized voting, 
there would be few, if any, districts in the whole United 
States which could pass muster under -section 2. 

Consistent with the liberal view of the Senate Com­
mittee Report, the district court proceeded as though a 
finding of polarized voting plus one other of the "nine 
factors" would be enough to sustain a finding that Sec­
tion 2 had been violated. J.S. App. 14a-15a and n. 13. 
Given that the nine factors are hopelessly broad and 
amorphous-e.g., "any history of official discrimination" 
(Factor 1)-any locale can easily be found guilty of at 
least several of them. And few American jurisdictions 
would not also be "guilty" of polarized voting under the 
district court's standards. The 1984 Democratic Presi­
dential Primary results (not to mention the 1984 Presi­
dential election itself) conclusively demonstrate that 
extreme polarized voting is manifest throughout the 
United States. See Appendix A. 

Thus, the approach taken by the district court in this 
case simply proves too much. Congress cannot have in­
tended to enact a standard for Section 2 compliance 
which can only be met with certainty by homogenous 
jurisdictions that do not have to cope with the political 
tensions of racial diversity. The district court's inter­
pretation of the VRA would condemn the election sys-

~In fact, the court's own opinion shows that this phenomenon 
may have already occurred in North Carolina. J.S. App. 37A n.27. 
The notable success of black candidates in the 1982 election was 
ascribed to white support which was reputedly based on fear that 
the defeat of black candidates would adversely affect the VRA 
litigation. 



26 

terns of any jurisdiction where, for instance, conservative 
non-minority voters "refuse" to vote for liberal or rad­
ical candidates who happen to be black; and where can­
didates have the audacity to urge reduced welfare spend­
ing or to oppose forced busing (which the court would 
undoubtedly condemn as "overt or subtle racial appeals" 
under Factor 6 of the Senate Report, J.S. App. 13a). 

The approach adopted by the court below does not 
advance valid and lawful principles of voting rights for 
minorities; instead, it prescribes a form of judicial 
tyranny over the political and voting freedoms of mem­
bers of the racial or ethnic majority. This Court should 
emphatically and unambiguously reject the district 
court's decision as a profound distortion of the Voting 
Rights Act and an affront to the Constitution. 

CONCLUSION 

For all the foregoing reasons, the decision of the dis­
trict court should be reversed. 

July 5,1985 

Respectfully submitted, 

DANIELJ. POPEO 

GEORGE C. SMITH * 
WASHINGTON LEGAL FOUNDATION 

1705 N Street, N.W. 
Washington, D.C. 20036 
(202) 857-0240 

Attorneys for Amicus Curiae 
Washington Legal Foundation 

* Counsel of Record 



APPENDIX A 

Table 4. 1984 Democratic presidential primary voting by race. 

Blacks Whites 
Black White 
per- per-

centage centage 
State Date of sample Glenn Hart Jackson Mondale of sample Glenn Hart Jackson Mondale 

Alabama 3/13 40% 1% 1% 50% 47% 56% 32% 37% 1% 29% 
Georgia 3/ 13 28 1 5 61 30 69 25 38 1 32 
Illinois 3/ 20 25 4 79 17 69 45 4 47 
New York 4/3 23 3 87 8 70 36 6 57 
Pennsylvania 4/ 10 16 3 77 18 82 43 4 50 ...... 

~ 
Tennessee 5/1 26 2 76 22 71 43 2 51 
Texas* 5/ 5 33 1 83 16 56 37 4 50 
Indiana 5/ 8 14 9 71 20 85 51 3 44 
Maryland 5/8 24 2 83 13 73 35 5 53 
No. Carolina 5/ 8 27 1 84 13 69 41 3 46 
Ohio 5/ 8 19 3 81 15 79 50 5 44 
California 6/5 5 78 16 48 9 40 
New Jersey 6/ 5 2 86 11 38 4 56 

Source: CBS/New York Times exit surveys. 

* Sample of caucus participants 












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