Letter to the office of Supreme Court Clerk Frank Lorson from Robert McDuff with suggested order of argument of related cases

    No. 83-1968 

October Term, 1985 

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LAcY H. THORNBURG, et al., 

Appellants, 
v. 

RALPH GrNGLEs, et al., 
Appellees. 

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

BRIEF OF THE 
APPELLEES INTERVENORS 

--------0--------
•c. ALLEN FOSTER 
KENNETH J. GUMBINER 
FosTER, CoNNER, RoBSON & GuMBINER, P .A. 

104 North Elm Street 
Greensboro, North Carolina 27401 
(919) 273-1733 

Attorneys for Appellees/Intervenors 

*Counsel of Record 

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333 





1 

QUESTIONS PRESENTED 

I. Whether the District Court erred in finding a viola­
tion of Section 2 of the Voting Rights Act when, based 
upon the totality of the circumstances, the political 
process in the challenged districts is not equally open 
to minorities because (a) the weighted average dif­
ferential between the registration of black and white 
age-qualified voters exceeds 15%, (b) elections have 
been and are marred by persistent and severe racially 
polarized voting and (c) in the last 15 years, only 
eight different blacks have been elected to an aggre­
gate of 248 potential seats 1 

II. Can a few black victories negate a finding of vote 
polarization when the differenoo between the per­
centage of blacks and the percentage of whites who 
voted for black candidates i s so substantial as to dis­
play a consistent pattern of voters casting ballots 
along racial lines 1 

ITI. Regardless of the definition of racially polarized 
voting, should the lower Court's finding of a viola­
tion of Section 2 be set aside in light of Congress' 
clear intent to incorporate the analysis of White v. 
Regester, 412 U.S. 353 (1973), into amended Section 
2 and the fact that White found impermissible· vote 
dilution even without a finding of racial polarization¥ 



ll 

PARTIE.S TO THE PROCEEDING BELOW 

PLAINTIFFS (APPELLEES) in the action below are 
Ralph Gingles, Sippio Burton, Fred Belfield and Joseph 
Moody, individually and on behalf of a certified class of 
all black residents of North Carolina who are registered 
to vote. 

PLAINTIFFS j INTERVENORS (APPELLEES) are 
Paul B. Eaglin, Mason McCullough and Joe B. Roberts, 
members of the certified class. 

DEFENDANTS (APPELLANTS) are Lacy H., Thorn­
burg, Attorney General of North Carolina; Robert B. J or­
dan, III, Lt. Governor of North Carolina; Liston B. Ram­
sey, Speaker of the House; the State Board of Elections 
of North Carolina; Robert N. Hunter, Jr., Chairman; 
Robert R. Browning, Margaret King, Ruth T. Semashko, 
William A. Marsh, Jr., members of the State Board of 
Elections; and Thad Eure, Secretary of State. 



iii 

TABLE OF CONTENTS 

Pages 

QUESTIONS PRESENTED -------------------- ---------------------------------------------- 1 

P ARTIE'S TO THE PROCEEDING BELOW -------------···· u 

TABLE OF CONTENTS-··----···---------·--·-····--·--·------'--------·····----······--··-- m 

TABLE OF AUTHORITIES·········-·········-···--···-·--···-·-----·-·······--··------ 1v 

STATEMENT OF FACTS ----------··-·-···-·······-·····-··--·---·--·-··-··-·--····--·-·-·· 1 

SUMMARY OF THE ARGUMENT---·-·-··--·-········--····-················· 4 
ARGUMENT 

I. THE DISTRICT COURT PROPERLY 
FOUND THAT, BASED UPON THE TO­
TALITY OF THE CIRCUMSTANCE'S, 
THE POLITICAL PROCESSES IN THE 
CHALLENGED DISTRICT'S ARE NOT 
EQUALLY OPEN TO PARTICIPATION 
BY THE PLAINTIFF CLASS. ................................. 8 

A. Introduction ···-···--··········-·············-···-·······-··--·---·····-····--·--·- 8 

B. The Interaction Between the Zimmer 
Factors Present and the Use of Multi­
member Districts Denies Minorities an 
Equal Opportunity to Participate in the 
Electoral Process and to Elect Represen­
tatives of Their Choice. ····-·········-·····--···-··-·-··-···-·-·· 9 

C. 'The Court Did Not Hold that Section 2 
Had Been Violated Because the Multi­
Member Districts Prevented Propor-
tional Representation for Minorities. ......... 19 

D. Because of Single-Shot Voting Tech­
nique-s, Limited Black Electoral Success 
May Mask the Results of a Discrimina-
tory Law. .................................................................................... 25 



IV 

TABLE OF CONTENTS-Continued 
Pages 

II. THE COURT PROPERLY USED A DE FT­
NIT I 0 N OF VOTE P OLARIZATION 
WHICH WOULD BE APPLICABLE TO 
JURISDICTIONS IN WHICH BLACKS 
'WIN A FEW ELECTIONS. ·····-·········----------------------------- 26 

A. Vote Polarization Exists Whenever the 
Difference Between the P ercentage of 
Blacks and the Percentage of Whites 
Who Voted for Black Candidates I s S ub­
stantial Enough to Display a Consistent 
'Pattern of Voters Casting Ballots Along 
Racial Lines. ········-------------------------···--------------------------------- ---- 26 

B. The Finding of Vote Polarization Is Not 
Foreclosed by the Mere Fact that Blacks 
Have Won a Few Elections. ·····-··········-········-······ 32 

III. EVEN IF THE LOWER COURT DID NOT 
ARTICULATE THE PROPER DEFINI ­
TION OF VOTE POLARIZATION, THE 
RE'CORD IS REPLETE WITH F ACT'S 
;SUPPORTING THE COURT~s FINDING 
OF VOTE DILUTION. ·········-------------------------------------------··-· '33 

CONCLUSION ··············-·······-------·····················-····-····----··································· '36 



v 

TABLE OF AUTHORITIES 
Pages 

CASES; 

Baker v . Carr, 369 U.S. 186 (1962) ................................................ 2, 15 

Drum v. Seawell, 271 F. Supp. 193 (M.D.N.C. 1967) ...... 2 

Graves v. Barnes, 343 F. Supp. 704 (W.D. Tex. 
1972), aff'd in part sub nom. White v. Regester, 
412 u.s. 755 (19'73) ······················································································- 36 

Neely v. Martin K. Eby Construction Co., 386 U.S. 
317 (19'67) ·····-···········-··········································-················-···································· 14 

Nevett v . Sides, 571 F.2d 209 (5th Cir. 19'78) ........................ 29 

Rogers v. Lodge, 458 U.S. 613 (1982) ......................................... .29, 30 

Terrazas v. Clements, 581 F. Supp. 1329 (N.D. Tex. 
1984) ·····················································-································-······································· 31 

Texas Dept. of Community Affairs v. Burdine, 450 
u.s. 248 (1981) ····································-····-······················································ 31 

United States v. Marengo County, 731 F.2d 1546 
(11th Cir. 1984) ............................................................................. -.............. 28, 35 

White v. Regester, 412 U.S. 755 (1973) ........................ 5, 7, 17, 21, 
33, 34, 35·, 36 

Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 
1973) (en bane), aff'd on other grounds sub 
nom. East Carroll Parish School Board v . Mar-
shall, 424 U.S. 636 (1976) (per curiam) ..... ...................... passim 

STATUTES: 

42 u.s. c. ~ 1973 .................................................................................... 3, 4, 8, 20, 32 

MISCELLANEOUS : 

S. Rep. No. 417, 97th Cong., 2d Sess. 1982 ........................ passim 





No. 83-1968 

--------0--------

October Term, 1985 

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LAcY H. THORNBURG, et al., 

Appellants, 
v. 

RALPH GrNGLEs, et al., 
Appellees. 

--------0--------

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

--------0--------

BRIEF OF THE 
APPELLEES INTERVENORS 

0--------

STATEMENT OF FACTS 

For seventy years, the State of North Carolina offi­
cially, systematically and effectively discriminated against 
black citizens with regard to the electoral franchise. From 
1900 until 1969, a combination of literacy tests, the poll 

1 



2 

tax, multi-member districts, 1 anticsingle shot laws, num­
bered-seat plans, majority vote requirements, blatant racist 
appeals, intimidation, and socio-economic discrimination 
prevented the election of any black to either the House 
or the Senate of the North Carolina General Assembly. 
(,T.S. at 22a-33a) 

Through the inexorable march of no longer passive 
public opinion, federal legislative pressure and judicial 
decisions, the greater part of these discriminatory mech­
anisms were dismantled, but a few, including multi-member 
districts, remain. 

It was in this context that plaintiffs Gingles, et al., 
and plaintiffs-intervenors Eaglin, et al., challenged the 
1982 redistricting plan adopted by the North Carolina 
General Assembly, on the grounds that "based upon the 
totality of the circumstances," (a) six multi-member dis­
tricts with substantial white voting majorities in areas 
where there are sufficient concentrations of black voters 
to form majority black single-member districts and (b) 
one single-member district which fractures into separate 
voting minorities a comparable concentration of black vot­
ers, in conjunction with the historical, social and political 
factors elaborated in Zimmer v. McKeithen, 485 F.2d 1297 

1 Multi-member districts are, the State asserts, the result 
of the historical practice in North Carolina of not dividing coun­
ties in forming legislat ive districts. (App. Brief p. 3) The State 
seeks to imply (App. Brief p. 3, n. 2) that, because Art II §§ 3(3) 
and 5(3) of the 1968 revision to the North Carolina Constitu­
tion "merely" codified historical practice, no discriminatory 
intent can be inferred. In light of the absence of any require­
ment for population balance by district prior to Baker v. Carr, 
369 U.S. 186 (1962) and Drum v. Seawell, 271 F.Supp. 193 (M.D. 
N.C. 1967), however, the chronological coincidence of the 1968 
constitutional amendment is remarkable. 



3 

(5th Cir. 1973) (en bane), aff'd on other grounds sub nom. 
East Carroll Parish School Board v. Marshall, 424 U.S. 
636 (1976) (per curiam), violated Section 2 of the Voting 
Rights Act, 42 U.S.C. ·~ 1973 (J.S. at 4a). In particular, 
plaintiffs contended that their class "have less opportunity 
... to participate in the political process and to elect rep­
resentatives of their choice.'' 42 U.S. C. ~ 1973 (b). 

After an eight day trial before a three judge court 
consisting of the Honorable J. Dickson Phillips, Jr., Cir­
cuit Judge, W. Earl Britt, Jr., Chief District Judge, and 
Franklin T. Dupree, Jr., Senior District Judge, all North 
Carolinians, the Court held that the black registered voters 
in the challenged districts were submerged as a voting 
minority and thereby had less opportunity than other 
members of the electorate to participate in the political 
process and to elect representatives of their choice. (.J.S. 
at 52a) 

In the course of its factual examination and conclu­
sions, the Court below made three critical findings rela­
tive to whether the members of the plaintiff class have 
an equal opportunity (a) to participate in the political 
process and (b) to elect representatives of their choice: 

1. In the challenged districts, only 55·% of the black 
voting age population is registered to vote as compared to 
70% of the white voting age population, a differential of 
15·%. (J.S. at 24a-25a; Answer to Interrogatory 1) 

2. Elections in the challenged districts have been and 
are marred by persistent and severe racially polarized vot­

ing. (J.S. at 38a) 



4 

3. Even in the context of progressive attitudes, leg­
islation and court decisions, only eight different black can­
didates have been elected in the challenged districts in an 
aggregate of approximately 248 elections since the first 
black was elected in 1969.2 

While the State and the Solicitor-General place dif­
ferent interpretations upon these facts or attack them as 
a matter of law, they are not seriously challenged. Plain­
tiffs contend that they are essentially dispositive of this 
appeal. 

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SUMMARY OF ARGUMENT 

Amended Section 2 of the Voting Rights Act, 42 U.S.C. 
Section 1973, protects the right of minorities to equal op­
portunity to participate in the political process, judged in 
the context of the totality of the circumstance. A violation 
is established if members of the minority (1) have less op-

2 

Challenged District 

House District 36 
Senate District 22 
House District 39 

House District 23 

House District 21 
House District 8 
Senate District 2 

No. of 
Different Blacks 

Elected 

1 (Berry) 
1 (Alexander) 
3 (Erwin, 

Kennedy, A., 
Hauser) 

2 (Michaux, 
Spaulding) 

1 (Blue) 
-0-
-0-

Source 

(J.S. 34a and 41a) 
(J.S. 34a and 42a) 
(J.S. 35a and 42a-43a) 

(J.S. 35a and 43a) 

(J.S. 35a and 44a) 
(J.S. 36a) 
(J.S. 36a) 

From 1969-1983, there have been eight elections in the chal­
lenged districts which elect 31 members of the House and Sen­
ate. (J.S. at 19a and 20a) 



5 

portunity than their counterparts in the electorate to parti­
cipate in the political process and (2) have less opportunity 
than others to elect representatives of their choice. Con­
gress took the language of amended Section 2 from White 
v. Regester, 412 U.S. 753 (1973), and intended thereby to 
incorporate the analysis of it and its progeny, including 
Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en 
bane), aff'd on other grounds sub nom. East Carroll 
Parish School Board v. Marshall, 424 U.S. 636 (1976). 

White, Zimmer and the legislative history of Section 2 
enumerate the factors which are relevant to the determina­
tion of the two ultimate findings which establish a viola­
tion. In the instant case, the District Court held that each 
and every Zimmer factor considered in conjunction with 
the suspect mechanism of multi-member districts, worked 
to deny the minority of their statutory rights to equal 
opportunity to participate in the political process. 

In a slightly different analysis than has previously 
been made, these factors may be appropriately allocated 
between the two halves of the statutory framework. In par­
ticular, minority blacks currently have less opportunity to 
participate in the political process as a result of (a) the 
undisputed history of intense and pervasive official dis­
crimination against blacks, the effects of which continue to 
persist despite the State's recent efforts, (b) the current 
depressed level of black participation in politics because of 
the lingering effects of racial discrimination in facilities, 
education, employment, housing and health, (c) a differen­
tial of over 15% between the percentage of age-qualified 
black and white voting registration, (d) minimal black par­
ticipation in legislative politics in comparison to black pop­
ulation and (e) the tenuous nature of the state policy, e.g. 



6 

not dividing counties, which necessitated multi-membered 
districts but which had been violated in other districts, to 
meet population deviation requirements or to obtain Sec­
tion 5 preclearance. 

Similarly, minority blacks currently have less oppor­
tunity to elect representatives of their cho·ice because of (a) 
discriminatory voting procedures, such as a majority vote 
requirement in primaries (which dilutes or negates the ef­
ficacy of "·single-shot" voting) and a lack of a sub-distri~t 
residency requirement in multi-member districts, (b) a con­
sistent history of inflammatory appeals to racial prejudice 
in political campaigns up to and including the most recent 
elections, (c) the election of only eight different black 
candidates to the nearly 250 legislative seat positions avail­
able since the first black in this century was elected to the 
House in 1969 (including the fact that, in two of the chal­
lenged districts, no black has ever been elected to the legis­
lature) and (d) persistent and severely racially polarized 
voting. 

With regard to factor (c)-limited black election suc­
cess-the lower Court did not hold that Section 2 had been 
violated because minorities had not achieved representa­
tion in proportion to their percentage of the population. 
The finding of underrepresentation only triggered the use 
of the Zimmer factors in order to investigate this anomaly 
under the totality of the circumstances; further, both Con­
gress and the courts accord slight weight to a few minority 
victories in Section 2 cases. Finally, particularly localized 
factors such as single-shot voting and some black candi­
dates who are acceptable to and serve the purposes of the 
dominant majority, mask the discriminatory effects of the 
submergence of the minority in multi-member districts. · 



7 

With regard to factor (d), the lower Court did not find 
polarized voting whenever less than 50% of the white vot­
ers cast ballots for minority candidates. Instead, the 
Court properly defined it as existing whenever the differ­
ence between the percentage of blacks and the percentage 
of whites who voted for black candidates is substantial 
enough to display a consistent pattern of voters casting 
ballots along racial lines. In other words, it is necessary 
to examine how both white and black electors vote and the 
extent to which the votes of each are cast along racial lines, 
together with other, particulaT circumstances of a given 
electoral contest, such as whether the black was opposed or 
unopposed. Once the plaintiff established a prima facie 
case of racial bloc voting through accepted regression 
analysis techniques, it was the State's burden to introduce 
evidence of other causative factors, other than race, as · 
rebuttal. Here, the State failed to offer any alternative 
explanation and should be bound by the findings below. 

Even if the lower court did not articulate the proper 
definition of vote polarization, a finding in this regard is 
not necessary to establish a violation of Section 2. In 
White v. Regester, this court considered Zimmer factors 
remarkably similar to the one involved here and found 
impermis-sible vote dilution without making a finding of 
vote· polarization. 



8 

I. THE DISTRICT COURT PROPERLY FOUND THAT, 
BASED UPON THE TOTALITY OF THE CIRCUM­
STANCES, THE POLlTICAL 'PROCESSES,IN THE 
,CHAL.LENGE.D DISTRICTS ARE NOT EQUALLY 
OPEN TO PARTICIPATION BY THE PLAINTIFF 
CLASS. , 

A. Introduction. 

The question in this case is whether the plaintiff class 
has been denied the rights guaranteed to it by ·§ 2 of the 
Voting Rights Act, 42 U.S.C. § 1973(a) and (b). The 
State asserts a minimal definition of these rights-that 
they are limited to the bare indicia of the political process 
which are satisfied if minorities enjoy "active and mean­
ingful participation in politics" (App. Brief p. 15; Sol. Gen. 
Brief dated July, 1985 p. 20 n.43.) Similarly, the State at­
tempts to characterize plaintiffs' contentions and the de­
cision of the Court below as requiring the very propor­
tional representation prohibited by the proviso to § 2(b). 
(App. Brief at 14, 15, 19, 20, 21, 33; Sol. Gen. Brief dated 
July, 1985 pp. 6-7) 

The Court below expressly eschewed any requirement 
of proportional representation (J.S. at 15a) and plaintiffs 
certainly do not urge that result, which is clearly contrary 
to the statutory command. On the other hand, ·that statu­
tory command is equally clearly broader than the State's 
contentions. Section 2 defines the denial of the protected 
right -that "the political process [be] ... equally open to 
participation by" the minority-in two terms: that its 
"members have less opportunity ... to participate in the 
political process" and that its "members have less oppor­
tunity ... to elect representatives of their choice." The 
definition urged by the 'State-" active and meaningful par­
ticipation" applies only to the first half of the statutory 
framework. 



9 

The task before this Court, and the parties to this case, 
is to define the second half of the statutory framework, the 
meaning the phrase dealing with plaintiffs' showing they 
have been denied equal "opportunity . . . to elect repre­
sentatives of their choice." Thus, we must locate the point 
on that complex spectrum where, by virtue of the applica­
tion of a legal standard, minorities are so electoria1ly suc­
cessful that they have, in fact, had an equal opportunity to 
elect representatives of their choice. Thi s po~nt must not, 
however, be so extreme as to be a requirement of propor­
tional representation. 

B. The Interaction between the Zimmer Factors 
Present and the Use of Multi-Member Districts De-­
nies Minorities an Equal Opportunity to Partici­
pate in the Electoral Process and to 'Elect Repre­
sentatives of Their Choice. 

As presaged by the foregoing Introduction, plaintiffs 
urge that the Zimmer factors and the challenged electoral 
mechanism be examined in light of the double framework 
of ·§ 2. We will allocate the Zimmer factors to that half 
of the framework to which they are actually more, or sole-­
ly, applicable.3 In this fashion, "equal opportunity to par­
ticipate'' is defined in terms of (a) the history of racial 
discrimination against black citizens in voting matters, (b) 
the effects of racial discrimination in facilities, education, 
employment, housing and health, (c) limitations on actual 
voting by black citizens, (d) the increased participation, if 

3 This mode of analysis allows for the use (and proper allo­
cation) of additional factors which are not foreclosed by the 
legislative history or Zimmer and which may be applicable to 
this or any other case. 



10 

any; by black citizens in the political process and (e) the 
fairness of the State legislative policy underlying the chal­
lenged redistricting. 

Similarly "equal opportunity to elect" may be mr­
cumscribed by (a) limiting voting procedures, (b) the use 
of racial appeals in political campaigns, (c) the limited ex­
tent of election of blacks to public office and (d) racial 
polarization in voting. 

It is plaintiffs' crystal conviction and the unambigu­
ous factual findings of the Court below that the combina­
tion of the Zimmer factors with the use of multi-member 
districts has deprived them of both (a) the equal oppor­
tunity to participate in the electoral process and (b) the 
equal opportunity to elect representatives of their choice. 

1: Equal Opportunity to Participate 

(a) The history of racial discrimination against black 
citizens in voting matters; 

In contrast to the State's assertion, the Court below 
did not saddle the State of North Carolina with ''an 
original sin." (App. Brief at 27) Instead, the Court 
found that, because of the extent and virulence of the 
undisputed history of official discrimination, its effects 
were still being currently felt. (J.S. at 22a) Even after 
most of the impediments to black voting were removed 
and some efforts were made by the State to increase black 
registration, the registration of age-qualified blacks is 
overwhelmingly less than that of a~e-qualified whites in 



11 

each of the counties which make up the challenged dis­
tricts.4 (J.S. at 24a-25a) 

In fact, in five of the counties, including one of the 
largest (Wake), the registration differential between 
whites and blacks has remained virtually unchanged dur­
ing the very period (1978-19•82) relied upon by the State 
to demonstrate the so-called ''progress" upon which it 
depends to overcome the findings and conclusions of the 
Court below. (Id.) In contrast, the 1Solicitor-General rec­
ognizes that these registration differentials are an ap­
propriate and, here, telling point. (Sol. Gen. Brief July, 
1985 p. 26) Indeed, plaintiffs urge that they are disposltive 
proof that minorities are currently denied an equal op­
portunity to participate in the political processes of the 
challenged districts. As such, the registration differen­
tials are discussed in greater detail at subsection (c) infra. 

(b) The effects of racial discrimination in facilities, 
education, ·employment, housing and health. 

The Court below also found that the socio-economic 
effects of racial discrimination had depressed minority 
political participation. (J.S. at 2·6a) The State contends 
that the Court jumped to this conclusion despite the ab­
sence of proof that "participation by blacks in the elec­
tor·al process is depressed." (App. Brief at 29) In fact, 
however, the evidence was that economically disadvan-

4 The Court acknowledged the preceding governor's at­
tempt to increase the registration of blacks, but found that, un­
like the multi-member districts which, absent this lawsuit, would 
be with us forever, there was no guarantee that the efforts to 
increase black registration will be continued past the end of 
that administration. (J.S. at 25a) 



12 

taged blacks, for whom political contributions are a bur­
den, are even more hampered by the extra cost of multi­
member campaigns. It is noteworthy that the Solicitor­
General does not share the State's misconception; in fact, 
his brief does not challenge the lower Court's finding in 
this regard. 

Even more important, the State's attempt to show 
that black political participation is not depressed is dis­
ingenuous. The litany of Democratic party offices, po­
litical positions and elected offices held by minorities in 
the challenged districts is virtually all either intra-party, 
appointive or local in nature. While there may be less 
question that black participation is depressed at the local 
level, the important inquiry is whether it is depressed at 
the legislative district level. The only relevant proof of 
black political participation at the legislative district level 
which the S:tate .can cite are the few black representatives 
and senators elected since 19•69, both in the challenged dis­
tricts and elsewhere.5 Even with regard to these electoral 
successes, the critical fact is that many of them are the re­
sult of single-member districts, the very relief sought in 
this case.6 

(c) Limitations on actual -voting by black citizens. 

The fact that blacks are registered to vote at a far 
lower rate ·than whites is virtually definitional of the 

s Discussed in detail below in Section IB under heading 
"2-Equal Opportunity to Elect Representatives of Their Choice." 
6 In the course of the 1982 redistricting, the legislature cre­
ated single-member districts in counties not involved in this 
case, such as Guilford (Greensboro). As a result, blacks have 
enjoyed increased electoral success. 



13 

lack of equal participation. Based upon the registration 
statistics presented in this case, it is painfully evident that 
blacks do not, indeed, cannot, equally participate in the 
electoral process with whites. In the two largest counties 
involved in this case (Mecklenburg and Wake), the dis­
parity between white ·and black registration is well over 
20%. In only a few of the smaller counties does the voter 
registration disparity decline to a still crippling 10%. 
Thus, in the counties that contain the most blacks, their 
opportunity to participate, as defined by registration rates, 
is the least. In fact, when the percentage registration sta­
tistics for each county in the challenged districts are ap­
plied to the absolute numbers of the voting age population 
in the county, the effect of the vast differential between 
black and white registration in the more populous coun­
ties is clear. While the numerical average of the regis­
tration differentials is 12.6%/ the weighted average is 
15%.8 

This current indicium of the lack of equal opportunity 
to participate is even greater in light of the fact that, be­
tween 19,80 and 1982, statewide white registration has 
dropped by 112,000 and black registration has increased 
by 12,096. (App. Brief at 13) Even with these black gains 
and white losses, black registration still lags so substan-

7 This figure is the numerical average of the difference be­
tween the percentage of blacks of voting age who are regis­
tered and the percentage of whites of voting age who are reg­
istered, as set forth in the opinion of the Court below in J.S. 
at 24a-25a (10/82 figures). 

8 This figure ·is the weighted average obtained by applying 
the differentials from j.S. at 24a-25a to the voting age popula­
tion statistics for each county found in Plaintiffs' Exhibit 87. 



14 

tially behind white registration as to constitute irrefut­
able proof that, in the challenged districts, blacks do not 
have an equal opportunity to participate in the political 
process.9 

(d) Increased participation, if , any, by black citizens 
in the political process. 

The trial court found that, despite the very recent in­
crease in black participation in politics, this factor did 
not overcome ''entrenched racial vote polarization" and, 
compared to the overall black population, black participa­
tion remained "minimal." (J.S. at 47a) While the State's 
Statement of the Case does contain references to some 
facts which the trial court weighed in reaching this find­
ing, the State does not separately dispute this finding in 
its brief, and therefore, this finding is not subject to re­
view. See generally Neely v. Martin K. Eby Construction 
Co., 386 U.1S. 317, 330 (19,67). 

(e) The fairness of the State Legislative policy un­
derlying the challenged redistricting. 

As a final factor bearing upon the lack of equal op­
portunity to participate, the Court found that the ;State's 
justification for creating the challenged districts did not 
overcome other factors which established vote dilution. 
The Court quoted the 'Senate Committee Report which evi­
dences Congress' intent that ''even a consistently applied 
practice premised on a racially neutral policy would not 

9 According to the testimony of Mr. Spearman, Chairman 
of the Board of Elections, even at this extraordinary rate of 
"catch up", over a decade would be required to equalize the 
registration percentage. 



15 

negate a plaintiff's showing through other factors that 
the challenged practice denies minorities fair access to the 
process." (J.S. at 49a, quoting S. Rep. at 29, n.117) Plain­
tiff Gingles made a compelling showing using the other 
Zimmer factors that "no state policy, either as demon­
strably employed by the legislature in its deliberations, 
or as now asserted by the state in litigation, could 'ne­
gate a showing here' [of] actual vote dilution ... " (Id.) 

The Court specifically examined the proffered justi­
fication. The State argued it had an unbroken historical 
policy of not dividing counties in the formation of legis­
lative districts and that, as a result, the use of multi-mem­
ber districts was necessary. Prior to Baker v. Carr, 369 
U.S. 186 (19,62), however, multi-member districts were not 
"necessary" to avoid splitting counties because there was 
no requirement that districts be balanced in population. 
Thus, at most, the 'State's interest was in preserving a 
hoary relic.10 Moreover, the Court below found that, what­
ever its genesis, this policy could not justify diluting the 
votes of minorities, especially when it was not sufficient­
ly sacred to forestall the splitting of counties to meet pop­
ulation deviation requirements or to obtain Section 5 pre­
clearance. (J.S. at 50a) Put another way, the 'State's al­
leged ''policy" was properly viewed as a smokescreen. 

2. Equal Opportunity to Elect Representatives of 
Their Choice. 

(a) Limiting voting procedures. 

The second prong of the Zimmer factor dicotomy con­
cerns the equal opportunity of the minority to elect repre-

to Please also see footnote 1, supra. 



16 

sentatives of their choice. In Section 1 (c) above, we dis­

cussed direct limitations on participation, the most impor­

tant being diminished black voter registration. In this 

section, the concern is with · the indirect effects of voting 

procedures on the practical capacity of minorities to elect 

the candidates of their choice. 

In this connection, the Court found that North Caro­

lina voting procedures, such as the majority vote require­

ment in primaries and a lack of a subdistrict residency re­

quirement, had an adverse impact on black voting strength. 

(J.S. at 29a-30a) In multi-member districts, majority vote 

requirements have the practical effect of eliminating the 

possibility that the majority voters will so spread their 

votes over the white candidates as to allow a minority can­

didate to rank sufficiently high to obtain a seat because of 

concentrated support from the minority. 

This requirement diminishes the effectivenes-s of 

"single-shot" voting-the primary technique that minori­

ties have to combat vote dilution in a multi-member dis­

trict. \Vith this requirement, minorities can no longer elect 

their candidate by concentrating their votes. They must 

depend upon some cros-s-over votes from the white voters 

in order to attain majority status for any black .candidate . 

. Even though the Court found no black candidate for 

election to the General Assembly had failed to win an 



17 

election solely because of the majority vote requirement/1 

it ''exists as a continuing practical impediment to the op­
portunity of black voting minorities in the challenged dis­
tricts to elect candidates of their choice." ( J.S. at 30) Con­
gress did not, however, require that a plaintiff in a Section 
2 case must actually show that this limitation had affected 
an election in the past. Congress was concerned with the 
interplay between this rule and the suspect voting proce­
dure (multi-member districts). Thus, the statutory focus 
is on the potential for affecting future elections. In ap­
proving the relevance of this factor, the Congressional re­
port noted that the inquiry was "the extent to which the 
state ... has used ... majority vote requirements ... or 
other voting practices or procedure's that may enhance the 
opportunity for discrimination against the minority group 
... " S. Rep. at 28 (emphasis added) If Congress had de­
sired to impose a showing of actual impact on electoral suc­
ce·ss, it would have used "have enhanced", not "may en­
hance". 

Additionally, North Carolina lacks a subdistrict resi­
dency requirement; therefore, all candidates for the legis­
lature in the multi-member district may be from areas out­
side black neighborhoods. S ee White, 412. U.S. 766, n.lO. 
This factor makes it far more likely that the majority 

n The State asserts that, because of this fact, the lower 
Court's finding in this regard is "absurd." We argue in the 
text following this footnote that Congress did not ·intend the 
factor to be ·interpreted only in the past tense. In addition, 
the Court below was well aware of the fact that a black candi­
date [H. M. Michaux, currently a member of the House from 
challenged District 23 (Durham)] lost his 1980 bid for Congress 
from the district which includes challenged district 23 because 
of the majority vote requirement in the Democratic primary. 



18 

voters will elect all of the representatives in the multi­
member district, as was actually the case in the challenged 
districts. (Plaintiffs' Exh. 4-8) 

(b) The use of racial appeals in political campaigns . 

The use of racial appeals in political campaigns affects 
the opportunity that blacks have to elect candidates. The 
Court found that "[t]he record in this case is replete with 
specific examples of this general pattern of racial appeals 
in political campaigns." (J.S. at 31a) Additionally, for 
the past thirty years the Court found racial appeals to be 
"widespread and persistent." (J.S. at 32'a) 

A logical inference to be made from these findings is 
that these appeals have been successful in electing major­
ity candidates. If they were not, then candidates using 
them would have been weeded out in the political market­
place. With this inference, it is easier to unders'tand the 
syllogistic relationship between racial appeals and multi­
member districts. As shown by the fact that appeals. to 
race is a successful election technique, voters in these dis­
tricts tend to vote along racial lines. Because of the use of 
multi-member districts, the majority voter's practice of 
voting along racial lines lessens the opportunity for minori­
ties "to elect representatives of their choice." 

In an attempt to cast doubt on the lower Court's find­
ings, the State has sele.ctively chosen six campaigns in 
which it concedes that racial appeals were made. The 
State then implies that these six national campaigns were 
the only campaigns which underlay the Court's finding. 
(App. Brief a;t 31) In fact, however, the Court explicitly 
found that "[n]umerous other examples of assertedly 
more subtle forms of 'telegraphed' racial appeals in a 



19 

great number of local and statewide elections, abound in 
tihe record." (J.S. at 32a) 

Once again the State makes an excellent argument for 
this Court to defer to the findings of the lower Court which 
were based on days of testimony, hundreds of exhibits and 
an intimate knowledge of the North Carolina political en­
vironment. (See Appellee's Motion to Dismiss or Affirm 
at pp. 8-42 for a full discussion of this argument.) 

(c) The extent of election of blacks to public office. 

(d) Racial polarization in voting. 

The extent to which blacks have been elected to office 
and racially polarized voting bear directly and critically 
on the question of whether blacks have an equal opportu­
nity to elect candidates of their choice. For a full dis­
cussion of each item, see Section III and Section II C and 
D, respeCJtively, infra. 

C. The Court Did Not Hold that Section 2 Had Been 
Violated because the Multi-Member Districts Pre­
vented Proportional Representation for Minorities. 

In an attempt to substantiate its claim that the Court 
has committed an error of law, the State has seriously 
misconstrued the opinion below. The State quotes the 
Court's language that minorities are '' 'effectively denied 
the political power to further those interests that numbers 
alone would presumptively give [them] in a voting con­
stituency not racially polarized in its voting behavior,'" 
(App. Brief at 20) and then claims that this statement was 
the only factor upon which Court based its findings of vote 
dilution. (Id.) 



20 

This interpretation is erroneous for two reasons. First, 
the District Court explicitly acknowledged that a violation 
of Section 2 cannot simply be based on "the fact that 
blacks have not been elected under a challenged district­
ing plan in numbers proportional to their percentage of 
the population." (J.S. at 15a) (.citation omitted) Second, 
if the District Court believed this one fact was enough to 
warrant a :finding of a statutory violation, it would not 
have been necessary for the Court to discuss and weigh 
the numerous other Zimmer factors that are present in 
this case. 

Instead, the lower court corre0tly analyzed the evJ­
dence and found that blacks were "presumably" under­
represented so as to trigger a further investigation into 
the causes of this underrepresentation anomaly. If blacks 
are not represented proportionaJtely in a jurisdiction, this 
is not a per se violation of Section 2. Rather, it is an 
anomaly which might be caused by illicit denial to a minor­
ity of their opportunity to participate in the poliJtical proc­
ess or which might be founded in some other benign fac­
tor. This very underrepresentation is, however, one cir­
cumstance that courts are explicitly allowed to use in find­
ing that the minority have less opportunity to elect repre­
sentatives of their choice. 42 U.S.C. § 1973(b). 

In contrast, it is the State which seeks to disregard 
the "totality of circumstances" standard by focusing on 
one Zimmer factor. The State asser1ts that," [t]he degree 
of success at the polls enjoyed by black North Carolinians 
is sufficient in itself . . . to entirely discredit the plaintiffs' 
theory that pre·sent legislative distri~ts deny blacks equal 
access to ~the political process." (App. Brief at 24) (em-



21 

phasis added) Ignoring Congressional as well as judicial 
statements that the extent to which blacks are elected is 
just one factor to consider in a Section 2 claim, the State 
asserts that, solely because there have been 18 black vic­
tories in the challenged districts, no violation can be found. 
I d. T.he State'·s argument fails for two reasons. 

First, the number 18 is triply misleading (a) because 
it includes two blacks elected from districts not challenged 
here (House Districts only partially within Senate District 
2), (b) because it aggregates all of the black victories at­
tained in the seven challenged districts and (c) because 
this number of victories is infinitesimal in the context of 
the number and years of elections since 1900 in which black 
candidates were nort even at the starting block, let alone 
the finisJJ. line. Lumping victories together masks the true 
effeets that these multi-member districts have on the mi­
nority's ability to participate in 1Jhe electoral system. Ad­
hering to the judicial mandate which requires an intensely 
localized examination of the facts involved in Section 2 
claims, White v. Regester, 412 U.S. at 769, the number of 
victories are put in their proper perspective only when dis­
aggregated into their respective districts and compared to 
the number of elections lost. 

In both House District 8 (Edgecombe, Nash, Wilson) 
and Senate District 2 (Easrtern North Carolina), no black 
has ever 12 been elected to the legislature.13 To the ex-

12 As pointed out above, it must be remembered that "ever" 
is a long time in North Carolina politics-since 1900, eighty­
five years and three generations ago. 

t3 Two representatives have been elected from House Dis­
tricts within Senate District 2, but these two House Districts 
are not being challenged in this lawsuit. 



22 

tent that the State relies on black victories in order to 
outweigh the rest of the Zimmer factors, the State must 
concede a violation in at least these two districts.14 The 
State acknowledges this fact when it cites the authorita­
tiveness of 'the House report's statement that 

[i]t would be illegal for an at-large election scheme 
for a particular state or local body to permit a bloc 
voting majority over a substantial period of time con­
sistently to defeat minority candidates. H. Rep. at 30. 

The white majority having always defeated the minority 
candidates in House District 8 and Senate District 2, there 
should be no question left of the propriety of the lower 
Court's conclusions and order with regard to them. 

In the rest of the districts, the asserted "substantial" 
black successes actually constitute only a pitiful "few" vic­
tories when they are disaggregated. In House District 36 
(Mecklenburg) and Senate District 22 (Mecklenburgj Ca­
barrus) only one black from each district has ever been 
successful. (J.S. at 34a) In House District 21 (Wake) 
only one black candidate has ever been successful, and he 
was reelected only once. (J.S. at 35a) In House District 
39 (Forsyth), three blacks were elected but only one of 
these was elected for two terms and the two elected in 1982 
were successful only after this litigation was begun. It is 
important that the black victor, Hauser, testified at the 
trial that whites had suddenly become extremely support­
ive of his campaign. (See Hauser Deposition) (J.S. at 
35·a) House District 23 (Durham) has had the most rep-

t4 In addition, as the Solicitor-General correctly notes in his 
brief (Sol. Gen. Brief July, 1985 p. 7, n.11), this Court's notation 
of jurisdiction does not encompass the State's challenge to the 
District Court's conclusions with regard to House District 8 
and Senate District 2. As a result, summary affirmance would 
seem required. They are discussed here only because the pic­
ture of racial vote dilution in those districts is illustrative of the 
other challenged districts. 



23 

resentation by blacks, having a black member of the House 
every year since 1973. (Id.) Even these five victories are, 
however, insignificant when one considers that there have 
been only two individuals involved and that the incumbent 
since 1978 (Kenneth Spaulding) has run uncontested each 
time in either the primary, the general election, or both. 
The Court below, all of whose members are from North 
Carolina, was well able to understand this phenomenon 
based upon its judicial notice of the fact that Mr. 'Spauld­
ing is a. member of one of the most prominent Durham 
business families. 15 In this connection, Mr. Lovett, the 
President of the Durham Committee on the Affairs of 
Black People, testified without contradiction that a neco 
essary factor in the Committee's solicitation of black can­
didates was its perception of the black candidate's accep­
tance by the white community, with particular emphasis on 

1s The State asserts that the minority's right to elect can­
didates of their choice is not tantamount to the right to elect 
candidates of their race. (App. Brief at 33) If this contention be 
true, the converse ·is equally so-the election of a particular 
black may not be probative of the minority's ability to elect 
candidates of their choice. 

When minority candidates run unopposed in a political 
context with a history of very recent official discrimination and 
persistent racially polarized voting (including the refusal of 
whites to vote for even the unopposed blacks), a Court should 
give more than a passing scrutiny to the probative value of their 
election "success." A more appropriate inference would be 
that the black candidate in question was acceptable to the 
dominant white majority while alleviating potential racial un­
rest in non-political areas. 

The other s·ide of the same coin is the well-known political 
fact that Republicans do not contest the seats of many con ­
servative Democrats in the South. In neither case, however, 
does the minority actually have the opportunity to elect rep­
re.sentatives of their choice. In the first case, the black minor­
ity gets an official of the·ir race but whose economic interests 
are more aligned with those of the dominant white majority; 

(Continued on next page) 



24 

the candidate not being outspoken with respect to the par­
ticular concerns of the black community. 

Second, Congress and the courts have been explicit 
with regard to the slight weight which should be afforded 
to a few minority victories in Section 2 claims. In Zim­
mer, the defendants argued thaJt the victories of three 
blacks in a challenged district should foreclose a finding of 
vote dilution. 485· F.2d at 1307. The Court rejected this 
argument on the· ground that it would "merely be inviting 
attempts to circumvent the Constitution" by encouraging 
those who wish to thwart a successful challenge to an elec­
toral scheme to engineer the election of a few blacks. 
4B5· F.2d at 1307. The mere possibility of encouraging at­
tempts to thwart vote dilution cases in this manner was 
enough for the Court to reject the defendants1 argume11t, 
without requiring a factual finding that such an attempt 
had actually occurred. 

Congres•s has also emphasized that black success is 
just one factor among the totality of circumstances to be 

(Continued from previous page) 

in the second, the Republican minority gets an official suit­
able to 'its economic interests but who will vote with the op­
position on the critical question of organizing the House or 
Senate. In both cases, the result is a half-way house for a mi­
nority as yet only partly enfranchised. In the case of the black 
minority, however, the right to full political equality is guar­
anteed by § 2. 

Perhaps even more important, the extent to which the po­
litical compromise suggested by the anomaly of a black run­
ning unopposed by the dominant white majority should be 
considered pro or con the State in the evaluation of this Zimmer 
factor, is uniquely a question for the trier of fact, in this case 
a Court of three distinguished citizens of the jurisdiction in 
question. With the benefit of their local knowledge, experience 
and appreciation, they have decided that the greater weight 
of the factor cuts against the State; that appropriately inspired 
conclusion should not be disturbed here. 



25 

considered. S. Rep. at 194. Thus, isolated victories are 
not dispositive of vote dilution; instead, their paucity .con­
firms the lower Court's finding that blacks have been un­
able to elect candidate·s of their choice in the challenged 
districts. 

D. Because of Single-Shot Voting Techniques, Lim­
ited Black Electoral Success May Mask the Re­
sults of a Discriminatory Law. 

Single-shot voting may enable blacks to be elected, yet 
they will still have less than the statutorily required equal 
opportunity to elect candidates of their choice. By the use 
of single-shot voting, blacks will appear to enjoy some 
success at electing candidates of their choice, while they 
are actually being deprived of their right to vote for a full 
slate of candidates. (J.S. at 41a) 

When minorities are placed in a multi-member district, 
one of the techniques they use in order to get a particular 
candidate elected is to ''single-shot'' their vote. In theory, 
the minority voters will all vote for the minority candidate 
and not cast the rest of their votes for any other candidates 
in the race. This tactic deprives the other candidates of 
the minority vote and, thus, the minority candidate has a 
better chance of being elected as one of the top vote get­
ters. 

In order to use this method to elect their candidate, 
the minority must forfeit their right to vote for any of the· 
other representatives from their multi-member district. 
In contrast, the majority voters are able to cast all of their 
votes. The majority is able to influence the election of all 
representatives while the minority, by ''single-shot'' vot­
ing, is only able to influence the election of one represent-



26 

ative. If the minority choses not to "single-shot" vote in 
a multi-member district with several Zimmer factors pres­
ent, they will be deprived of all opportunity to elect a 
candidate of their choice. Either way, they will have less 
of an opportunity to elect candidates of their choice than 
the majority voters and are thereby deprived of their stat­
utorily guaranteed right. 

II. THE COURT PROPERLY USED A DEFINITION OF 
VOTE POLARIZATION WHICH WOULD BE AP­
PLICABLE TO JURISDICTIONS IN WHICH 
BLACKS WIN A FEW ELECTIONS. 

A. Vote polarization exists whenever the difference 
between the percentage of blacks and the percent­
age of whites who voted for black candidates is 
substantial enough to display a consistent pattern 
of voters casting ballots along racial lines. 

To interpret raw statistics under a vote dilution claim, 
the Court must look at the alternatives available to voters. 
The lack of white candidates in some races will uncharac­
teristically increase the minority candidates' vote totals. 
Even in races such as these, however, pieces of the perva­
sive vote polarization pattern can still be discerned. For 
example, black candidates may receive some white support 
in a few elections but that support is still far less than the 
almost unanimous support of black voters. This difference 
in voting conforms to the pattern of racial bloc voting al­
ready established in other races in these districts. In this 
case, the lower Court utilized precisely this analysis in its 
extensive discussion of and findings with regard to spe­
cific elections in the indjvidual districts. (J.S. at 38a-46a) 

Contrary to the assertion of the State (App. Brief at 
H6), the lower Court did not find racial bloc voting when-



27 

ever less than 50% of the whites voted for the black candi­
date. This definition was implicitly disavowed by the 
lower Court. For example, in the Court's discussion of 
polarized voting in Mecklenburg County, it pointed to the 
fact that black candidate Berry received 50% of the white 
vote. The Court still found polarized voting in Mecklen­
burg despite this fact because, in the race in which Berry 
received these votes, there were only seven white candi­
dats running for eight positions. (J.S. at 42a) 

Similarly, in Durham County, when a black candidate 
received votes from 43% of the white voters in the 1982 
General Election, the Court once again found evidence of 
polarized voting. (J.'S. at 44a) The black in this election 
ran unopposed. Thus, the Court found that 57% of the 
white voters failed to vote for the black candidate even 
when no other choice was available. In comparison only 
11% of the blacks failed to vote for the unopposed black. 
The Court held, compellingly so, that the voters in this 
election clearly voted along racial lines despite the fact 
that the black candidate obtained substantial white support 
and actually won the election. 

In this same vein, vote polarization cannot simply be 
found as a matter of law if less than 50% of the whites 
vote for the black .candidate. The appellants set up a 
''straw man'' by accusing the lower Court of using this 
definition. It completely ignores the standard by which 
courts, including the District Court in this case, decide 
whether the percentage of white votes attained by the 
black candidate is aberrational. The standard actually 
used not only focuses on the white support for black can­
didates, but also includes an examination of the way blacks 
voted. Simply because less than 50:fo of the whites voted 



28 

for a black candidate tells the Court only half the story of 
polarization. If less than 50% of the blacks also voted for 
the black candidate, then no polarization is shown. 

The Court below certainly understood and appreciated 
this principle when it cited the 1978 elections in House 
Districts 3.9 (Forsyth) and 23 (Durham) where the black 
candidates, Sumter and Barnes, each received less than 
50% of the votes of both blacks and whites. Thus, inherent 
in any definition of polarization is a comparison between 
the voting habits of two groups. 

The State argues that because blacks have received 
white support past certain numerical levels that polariza­
tion cannot be found. Vote polarization cannot be defined 
so discretely because it exists on a spectrum. Congress 
did not expect courts to generate an absolute cut-off point 
with respect to the percentage of white votes obtained 
which would foreclose a finding of vote polarization. In 
listing the Zimmer factors, Congress instructed the courts 
to examine "the extent to which the elections of the State 
or political subdivision is racially polarized." S. Rep. 97-
417 at 29 (emphasis added). For Congress, the finding 
of racial polarization is just one factor which, itself, can 
exist at many different levels of intensity. 

The Courts, also, have recognized that polarization 
cannot be defined discretely. In United States v. Marengo 
County, the Eleventh Circuit recognized that polarization 
can be shown through direct statistical evidence or it can 
'' 'be indicated by a showing under Zimmer of ... past dis­
crimination in general ... , large districts, majority vote 
requirements, anti-single shot voting provisions and the 
lack of provision for at-large candidates running from 
particular geographic subdistricts.' " 731 F.2d 1546, 1567, 



29 

n.34 (1984) [quoting Nevett v. Sides, 571 F.2d 209, 223, 
n.18 (5th Cir. 1978)]. Because polarization can be shown 
on the basis of nonstatistical evidence, it is not a concept 
rebutted by a defined cut-off point. 

In the instant case, the finding of vote polarization 
was based on far more evidence than that which was held 
to be sufficient in Rogers v. Lodge, 458 U.S. 613 (1982). 
In Rogers, this Court affirmed a District Court's finding 
that the at--large system of electing commissioners in Burke 
County, Georgia, was being maintained for "invidious pur­
poses.'' 458 U.S. at 616. In this Court's examination of 
the Zimmer factors present, evidence of vote polarization 
was deemed "overwhelming", 458 U.S. at 623, based solely 
on statistics generated when two blacks ran for county 
commissioner.16 

In Rogers, the District Court had examined three pre­
cincts with a clear majority of blacks and one precinct with 
a bare majority of blacks. The Court compared the two 
black candidates' successes in these four precincts with 
their relative lack of success in predominantly white pre­
cincts. Statement as to Jurisdiction at 73a, Rogers v. 
Lodge, 458 U.S. 613 (1982). One black won in all four 
black precincts and lost in all of the white precincts. Id. 
The other black candidate won in three of the four black 
precincts and lost in the white precinctsY Id. 

There are two relevant points to make about this 
Court's finding of vote polarization based upon the facts in 

16 In contrast, the Gingles District Court analyzed between 
five and 15 elections in each district. 

17 It was not made clear whether this second black candi-
date lost in a district with a clear or bare majority of blacks. 



30 

Rogers. First, the Court did not require the blacks to win 
in every black precinct in order to find vote polarization. 
Thus, even though the blacks did not enjoy unanimous black 
support, polarization was still found. Similarly, as in the 
case at bar, even though some whites voted for a black can­
didate, this fact did not foreclose a finding of vote polari­
zation. 

Second, the Rogers Court relied on the District 
Court's finding of vote polarization and did not examine 
the record further to establish by how much the black can­
didates lost in each of the white districts. Instead, it was 
sufficient for a finding of vote polarization that blacks 
basically won in the black precincts and basically lost in 
the white precincts. 

In contrast, in this case, the lower Court's conclusion 
is supported by a regression analysis which established the 
degree of black and white support for the black candidates 
in each race. As a result of this analysis, the Court found 
not only that blacks almost uniformly lost in white major­
ity districts but also, and more importantly, that in all 
cases the support of black candidates by white voters dif­
fered fundamentally and dramatically from the support of 
black candidates by black voters. In other words, the lower 
Court in this case complied with Congress' mandate to de­
termine the ''extent'' as well as the fact of racial polariza­
.tion. S. Rep. 97-417 at 29.18 

18 Both the State (App. Brief pp. 41-44) and the Solicitor­
General (Sol. Gen. Brief july, 1985 p. 30 n.57) disparage the re­
gression analysis relied upon by the lower Court. They are ap­
parently unaware or ignore the fact that the State's own expert 

(Continued on next page) 



31 

By presenting a study that correlated a candidate's 

race with the race of voters, plaintiff Gingles made a prima 

facie showing of vote polarization. This showing could 

have been rebutted by the State if it had presented other 

studies which showed that factors other than race better 

explain the election results.19 For example, in Terrazas v. 

Clements, the District Court refused to find polarized vot­

ing when an hispanic candidate received 90% of the votes 

in "hispanic districts" and only 35% of the vote in "anglo 

districts." 581 F . Supp. 1329, 1352 (N.D. Texas, 1984) . 

The defendant there rebutted plaintiff's prima facie case 

with evidence that hispanics and whites voted along party -

lines, which explained the results in more elections than 

did the racial polarization theory. 581 F . Supp. at 1352. 

In contrast, the State here made no such attempt to rebut 

Gingles' prima facie showing (J.S. at 38a, n.29) which, 

consequently stands un~hallenged. 

(Continued from previous page) 

"did not question the accuracy of the data, its adequacy as a 
reliable sample for the purpose use, nor that the methods of 
analysis used were standard in the literature." (J.S. at 39a, n.29) 

In addition, the general reliability of the plaintiff's expert 
analysis "was further confirmed by the testimony of Dr. Theo­
dore Arrington, a duty qualified expert witness .... Proceeding 
by a somewhat different methodology and using different data, 
Dr. Arrington came to the same general conclusion respecting 
the extent of racial polarization . . .. " (!d.) 

19 The Solicitor-General concurs that the burden of going 
forward shifts to the defendant after the plaintiff has made out 
a prima facie case. Sol. Gen. Brief July, 1985 p. 30 n.57) See 
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 
(1981). 



3;2 

B. The finding of vote polarization is not foreclosed 
by the mere fact that blacks have won a few elec­
tions. 

The District Court, using vote polarization only as one 
factor in its vote dilution analysis, was correct in holding 
that a few black victories did not, of themselves, prevent 
the Court from finding vote polarization. 

Section 2 of the Voting Rights Act does not protect 
minority voters only when they are completely shut out of 
the electoral process. Rather, it bars any practice that 
creates a climate in which minorites have "less oppor­
tunity than other members of the electorate to participate 
in the political process and to elect representatives of their 
choice." 42 U.S.C. 1973(b). 

Congress made it clear that a few black victories did 
not foreclose a vote dilution claim. In its discussion of 
token black victories, no mention was made of the fact 
that black victories foreclose a finding of polarization. 
S. Rep. at 29, n.115 and at 19'4. Because all of the 
Zimmer factors are mutually independent, a finding that 
one factor is absent or inapplicable cannot preclude the 
finding that another is present and critical; therefore, 
simply because a few blacks win, this does not rebut the 
separate factor of vote polarization. As a result, the Dis­
trict Court looked for, and found, overall patterns within 
each district which indicated that citizens in the district 
consistently voted along racial lines. 

Thus, even when blacks win, a pattern of polarization 
can still be evident. If 90% of the blacks vote for a black 
candidate and only 2'5% of whites do so in a district with 
a population less than 62% white, the black candidate will 



33 

wm. It is clear that, in this example, vote polarization did 
not cost the black the election; it should, however, be 
obvious that significant racial polarization was present. 
It should be equally obvious that vote polarization can 
exist in a district when the Court examines other elections 
in which blacks do lose. One or two black victories can­
not make up for a host of black losses. To the extent that 
Congress indicated its awareness that, in many vote dilu­
tion cases, there would be some black victories, it would be 
erroneous to say that random victories prevent the Court 
from :finding the presence of such an important factor as 
vote dilution. 

In fact, the State's various contentions in this regard 
constitute a logical morass. It argues that, if the lower 
Court used an erroneous definition of vote polarization, 
the. Court's decision must be overturned. Implicit in this 
argument is the principle that vote polarization is integral 
to a finding of vote dilution. If this were true, however, 
its argument that black victories preclude the Court from 
:finding vote polarization fails. If black victories defeat a 
finding of vote polarization, which in turn prevents the 
Court from holding that black votes are diluted, then the 
congressional mandate ('S. Rep. at 29') that a few black 
victories do not defeat a vote dilution claim is thwarted. 

III. EVEN IF THE LOWER COURT DID NOT ARTICU­
LATE THE PROPER DEFINITION OF VOTE PO­
LARIZATION, THE RECORD IS REPLE.TE WITH 
FACTS SUPPORTING THE COURT'S FINDING OF 
IMPERMISSIBLE VOTE DILUTION. 

In White v. Regester, 412 U.S. 755, this Court found 
vote dilution without making a finding of vote polariza­
tion. This case is especially pertinent because even the 



34 

State concedes that it was Congress' intent to codify the 
Court's analysis in White into the 1982 amendments to the 
Voting Rights Act. S. Rep. at 22-24. (App. Brief at 16·-
18) This Court in White upheld a District Court's invalida­
tion of multi-member districts in Texas and its resulting 
order to have them redrawn as single-member districts. 
The Court justified this holding "[b]ased on the totality 
of the circumstances." White., 412 U.S. at 769. 

Specifically, the. plaintiff in White claimed that the use 
of multi-member disrtricts was invidiously cancelling or 
minimizing the voting strength of racial groups in Dallas 
and Bexar Counties. 412 U.S. at 765. This Court held 
that, in order to sustain such a claim, the ''plaintiff's bur­
den is to produce evidence to support findings that the 
political process leading to nomination and election were 
not equally open to participation by the group in ques­
tion- that its members had less opportunity than did other 
residents in the district to participate in the political proc­
esses and to elect legislators of their choice." 412 U.S. at 
766 (citation omitted). 

In examining the multi-member district in Dallas 
CounJty, this~ Court outlined the types of evidence that 
would meet the quoted standard and thereby enable the 
plaintiffs in a vote dilution case to prevail. It was enough 
that the District Court examined the official history of 
racial discrimination, the white dominated political organi­
zation which was unresponsive to the needs of minorities, 
the use of racial campaign tactics and the limited electoral 
success of blacks.. 412 U.S. at 766. The Court also found 
that Texas election rules, such as a majority vote rule and 
the "place" rule, which required candidates to run in head-



35 

to-head contests, ",enhanced the opportunity for racial 
dis.crimination." 412, U.S. at 76~6. 

The· findings in White are remarkably similar to those 
of the Court below in this case.20 It is. critical that, in 
White, two blacks had been elected from the multi-member 

zo The only factor not present in the case at bar and found 
in White is of minor importance. The White court found the 
presence of "a white-dominated" slating organization which 
"did not need the support of the Negro community to win elec­
tions in the county, and it did not therefore exhibit good-faith 
concern for the political and other needs and aspirations of 
the Negro community." White, 412 U.S. at 766-767. 

However, "[u] nresponsiveness is considerably less im­
portant under the results test." United States v. Marengo Coun- _ 
ty, 731 F.2d 1546, 1572 (11th Cir. 1984). In Marengo, the ap­
peals court held that the District Court's finding of "no 'sub­
stantial lack of responsiveness'" of officials should not weigh 
heavily against a finding of dilution. 731 F.2d at 1573. The 
Marengo court made two arguments. "First, Section 2 pro­
tects the access of minorities not simply to the fruits of gov­
ernment but to participate in the pmcess itself." 731 F.2d at 
1572. In other words, even if the needs of minorities are ca­
tered to superficially, th is fact does not rebut evidence that mi­
norities are excluded from full and equal opportunity to par­
ticipate in the political process. Second, in contrast to the other 
Zimmer factors, "responsiveness is a highly subjective matter 
and this subjectivity is at odds with the emphasis of Section 2 
on objective factors." 731 F.2d at 1972. 

Furthermore, although this one "slating" factor from the 
White case is absent from the instant case, there is an addition­
al factor in this case not present in White. When the lower 
Court in White examined Dallas County, it found that "[i]n con­
sequence of a long history, only recently alleviated to some de­
gree, of racial discrimination in public and private facility uses, 
education, employment, housing and health care, black regis­
tered voters of the State remain hindered, relative to the white 
majority, in their ability to partidpate effectively in the political 
process." (J.S. at 26a) The Court in White did not find that this 
factor was present in Dallas County but did state it was an im­
portant factor in Bexar County, which contained the other chal­
lenged district. 412 U.S. at 768. 



36 

district in Dallas County and impermissible vote dilution 
was still found. Similarly, the District Court in White 
found vote dilution in Bexar County even though five 
Mexican-Americans had been elected from that multi-mem­
ber distriClt. Graves v. Barnes, 343 F. Supp. 704 (W.D. 
Tex. 19'72), afj"d in part sub nom. White v. Regester, 412 
U.S. 755 (19'73). Thus, as is argued above, the elections 
of a few blacks negates neither vote polarization nor the 
propriety of a finding of impermissible. vote dilution. 

In summary, White found vote dilution without a find­
ing of racial polarization. The court in White based its 
holding on the same findings that the lower Court relied 
upon here. The only factor not present here is of minimal 
importance and is more than offset by the additional factor 
of socio-economic inequality. Consequently, this Court 
should, as it did in White, find that "these findings and 
conclusions are sufficient to sustain the District Court's 
judgment with respect to the ... multi-member districts 

... " 412 U.S. at 767. 

---------0---------

CONCLUSION 

The lower court's holding that House Dis1trict 8 (Edge­
combe, Nash, Wilson) and Senate District 2 (northeastern 
North Carolina) violate Section 2 should be affirmed on 
either of two grounds: first, that the notation of prob­
able jurisdiction does nQit cover the State's appeal as to 
them; second that together with the other Zimmer factors 
present, the fact that no black has ever been elected to a leg­
islative seat from those districts clearly establishes that the 



37 

political processes in those districts was not and is not 
equally open to minorities. 

The lower Court'·s holding that House Districts 36 
(Mecklenburg), 39 (Forsyth), 23 (Durham), 21 (Wake) and 
Senate District 22 (Mecklenburgj Cabarrus) violate Sec­
tion 2 should be affirmed be.cause minorities there have 
neither an equal opportunity to participate in the political 
process nor an equal opportunity to elect representatives 
of their .choice in that, among other circumstances, (a) 
prior and current racial discrimination has resulted in dra­
matically lower voter registration percentages for blacks, 
(b) elections there are marred by persistent and severe 
racially polarized voting and (c) only a paltry number of -
blacks has ever been elected to the legislature from these 
districts. 

August 1985 

Respectfully submitted, 

*C. ALLEN FOSTER 
KENNETH J. GUMBINER 

FosTER, CoNNER, RonsoN & GuMBINER, P .A. 
104 North Elm Street 
Greensboro, North Carolina 27401 
(919) 273-1733 

Attorneys for Appellees/Intervenors 

*Counsel of Record 








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