Annotated Supplemental Brief for Appellees

    . . .t '-,, No. 83-1958
,, ) \,. )
\-z.t t {, rN THE

SUPREIIIE COURT OF THE UNITED STATES

October Term, 198{

=== ========= == -==== = ====== = ======
LACY tl. THORNBURG, g! al.r

AppeIlants,

V.

RALPTI GINGLES, Et dI. ,

rii"tt""".
===-======= === == ======3 ======3=--

On Appea1 From the United States
District Court For the Eastern'

District of North Carolina

SUPPLEMENTAL BRIEF FOR APPELLEES

JUTIUS LCVONNE CHAUBERS
LANI GUINIER *

NAACP Legal Defense &

Educational FundT Inc.
15th .Floor
99 lludson Street
New Yorkr New York 10013
212 219-1900

LESLIE WINNER
Ferguson , l{atC , Wallas ,
and Adkins, P.A.
951 S. IndePendence BIvd.
Charlotte, North Carolina 28202
(704) 37s-8461

Attorneys for APPellees

*Counsel of Record



tr

No.83-1958

IN THE

SUPREI,IE COURT OF TEE UNITED STATES

October ferm, l984

aa!==--===-=lE====t=t3=-====-=====

LACY E. THORNBURG, $ il.r
APPellants,

V.

RALPH GINGtEST et 81.r

;;"_-

==-===E3======================-==

On Appeal from the United States
District Court for the Eastern

District of North Carolina

SUPPLE!{ENTAL BRIEF FOR APPELLEES

Appellees submit this Supplemental

Brief in resPonse to t'he brief filed by

the UniEed States.



2-

The controllj.ng question raised by

the brief of the United States concerns

the standard to be applied by this Court

in reviewing appeals which present

essentially factual issues. A section 2

action such as this requires the trial

court to determine whether

the political Processes leading to
nomination or election in the State
or pol itical subdivision are not
equaily oPen to Ferticipation by Ia
protected grouPl.

u. s.

The presence or absence of such equal

opportunity, like the presence or absence

of a discriminatory notive, is a factual

ques t ion . See Hunter v. Underwood,

1 1 98 5 ) ; Rogers v-. Lodge ,

458 U.S. 513 (1982). Correctly recognizing

the factual nature of that issue, this

Court has on two occasions during the

' 42 u.s.c. 1973(b).



3-

present term summarily affirmed appeals in

Sect ion 2 act ions. St,rake v. Seamon , No.

83-1823 (Oct. 1, 1984); Brooks v. Allain,

No. 83-1865 (Nov. 13, '1984). If an

ord inary appeal presenting a disputed

question of fact is now to be t,reated for

that reasoo alone as presenting a'sub-

stantial questionr' then this case, and

almost all direct appeals to this Court,

will have to be set for fu1I briefing and

argument. We urge, howev€Er that to

routinely treat appeals regarding such

factual disputes as presenLing subst.antial

questions would be inconsistent with Rule

52(a), Federal Ru1es of Civil Procedure,

and with the efficient management of this

Court's docket.

Th" Solieitor General, having con-

ducted his own review of some Portions of
2

the record, advises the Court that, had he

-

' Ihe Solicitor General, understandably less



4-

been Ehe trial judge, he would have

decided portions of the case differently.

The j udges who actually t,ried this case,

aIl of them North Carolinians with long

personal understanding of circumstances in

thaE s tat,e , concluded that blacks were

denied an equal opportunit,y to participat.e

in the pol it,ical Processes in 6 North

Carolinamulti-member and one single member

legislative districts. The Solicitor

General , on t,he other hand, is of the

opinion that there is a lack of equal
3

opportunity in 2 districts that 'there may

familiar with the details of this case
than the trlal court, makes a number of
inaccurate assertions about the record.
The government asserts, for example,
'there is not t.he sl ightest suggest.ion"
that black candidates were elected because
whites considered them 'safe". (U.S. Br.
'18 n. 17). In f act there was uncontra-
dicted testinony that only blacks who were
saf e c'ould be elected. (Tr . 625-26, 691 ,
851, 857).

House District 8 and Senate District 2i
U.S. Brief 21 .



5-

well be' a lack of equal opportunity in 2

4
other districts, but that blacks in fact

enjoy equal opportuniEy to participate in

the political Process in the three
5

rema in ing d is tricts . Other Solicitors

General and other judges, reviewing the

same record, could quite conceivably come

to still different conclusions with regard

to the political and racial realities in

various portions of North Carolina.

The government's fact-bound and

statistic-laden brief, noticably devoid of

any reference to Rule 52r sets out all of

the evidence in this case which supported

4 tbr"" District 36 and Senate Dist,rict 22;
U.S. Brief 20 n.10 The appendix to the
jurisdictional statement which contains
the Dist,rict, Court I s opinion has a
typographical error stacing erroneously
that two black citizens have run 'success-
f u 11y' f or the Senate f rom lttecklenburg
County. The correct word is 'unsuccess-
fu11y". J.S. APP. 34a.

5 Hou=" Districts 21 , 23 and 39i U.S. Brief
15.



6-

the position of Ehe defendants. It onits,

howeverr loy reference to the trial
evidence relted on by the trial court ln

finding dlecrlnlnation ln the political
proeesses in each of the seven distrlcte

6
in controvergy.

fhe Senate RePort aeco[Panying

eection 2 listcd savcn prinary factual

factors that Ehould be coneidered in a

secti.on 2 case and the government docs not

challenge the district courtrs finding

that at least stx of those factors

support,ed appellees' clains. On the

contrary, the governnent candidly acknowl-

edges'It]he diEtrict court here faitti-
fully consldered these obJective factors,

and there is no clain that its findings

with respect t.o any of then uere clearly

erroneous.t (U.S. Br. 1l).

-

o J.A. App. 21a-52a.



7-

The government aPParenEly contends

that atI the evidence of discrininat,ion
----------.==-
and inequal i ty in the pol lt,ical Process

was outrreighed, at least as to Eouse

Districts 21, 23 and 39, solely bY the

-

fact that blacks actuallY wdn some

e!ect ions in those mu'l ti-member disEricts

in 1982. It urges

Judged simply on the basis ofrresultsrr the multimember plans in
these districts have aPParenElY
enhanced not, diluted mlnority
strength. (U.S. Br. 16).

- Aunlu^,\h{ Nor 4,tre governmentrs view, the only

'result' which a court may consider is the

nunber of b lacks who won the most, recerL

election. Section 2t however, does not
--
authorize a court to 'judgIe] simply on

the basis of Ielection] 'resultS'', but

requires a more penetrating inquiry into

a1I evidence tending to demonst,rate the

presence or absence of inequality of



oPPortunity

8-

in Ehe political Process.

Congress itself expressly ernphasized in

section 2 that the rate at, which minorl-

ties had been elected was onIY 'g

circumstance which may be considered.'

(emphasis added). The legislative hist,ory

of sect ion 2 repeaEedly makes .ieat t,hat

Congress intended that the courts were not

Thedistrict court found, inter a1ia, that
the use of racial appeals ii-EIec ns has
been widespread and Persists to the
present, J.S. App. 32; the use of a
ma jori t,y vote requirement 'exists as a
conEinuing practical impediment to the
opportunity of black voting minoricies" t,o
elect candidates of their choicer J.S.
App. 30a; a substanEial gap between black
and white voter registration; and a black
electorate more impoverished and less well
educaEed than t.he white electorate and,
therefore, less able to Part,icipate
effecEively in the more exPensive mu1-
tiqnember district elections. There was
also substantial, unconEradicted evidence
that racial appeals were used in the 1982
Durham County congressional race and the /
then recent 1984 election for U.S. Senate. y'



9-

to attach conclusive significance to the

fact that sone minorities had won elec-
I

tions under a challenged pIan.

The circumst.ances of this case il1us-

trate the wisdom of Congressr decision to

require courts to consider a wlde range of

circumstances in assessing whether blacks

are afforded equal opportunity to partici-

pate in the political Process. A number

of the insEances in which blacks had won

elections oceurred only after the com-

mencement of this Iitigation, a circum-

stance whi.ch the trial court believed

ffir, 29 n. r15 (rthe erection
of a few minority candidates does not
'necessarily foreclose the possibility of
dilution of the black vote I , in violatton
of this section" ) , n. 1 1 8. ('The failure
of plaintiff to est,ablish any particular
factor is not rebuttal evidence of
non-dilution'). See also S. Rep. ,

-t -, -, 

In additionEe
ETl-or-Eebates ar- replete with similar
references to the totaliiy of circum-
stances standard.



10

tainted their significance. In several

other elections the successful black

candidat,es were unopposeu.'o rn assessin

the polit,ical opportunities afforded to

black voters under those at-large systems,

the Solicitor General evidently disagrees

with the comparative weight which the

trial court gave t,o t,hese election results

and to the countervailing evidence; t,he

assessment of that evidence, however, was

a matter for the trial court.

J.A. Aprp. 37a n.27. See also, S. Rep. 29
n.1'l 51 citing Zimmer v. IrtcKeithen, 485
F.zd 1297, 130@post-
litigation success is insignificanL
because it'might be attributable to
political election of a black candidate
wi 11 thwart successf ul challenges t,o
electoral schemes on dilut,ion grounds.
The Solicitor incorrectly asserts that
the 1982 election was the only election
under the plan in question.

J.S. App. 44a.10



11

The government does not claim that

the actual legal analysis of section 2

contained in the distrlct court's opinion

was in any way incorrect. Since the

Solicitor General believes, however, t'hat

black" il fact enjoy equal oPPortuniEy to

participate in the Political Process in

three of the challenged districts, he

in.sists that the t,rial court must have

made someunarticulated 1ega1 error. Such

an unstated legal error, rather than the

trial courtrs exPress factual finding of

unequal opportunity, could in t,he Solici-

torts viewbe rthe only explanation' for

the trial court decision wiLh which he

disagrees. (U.S. Br. 12): Thus, although

the trial court emphasized that plaintiffs

were ent,itled to no nore than an equal

opportuniEy to participate in t,he politi-

cal process, Ehe government insists that

Ehe trial court must have been applying



12

'Ii]n effect" some other never articulated

standard, such as 'proportional rePresen-

tation plus.' (U.S. Br. l8). These

arguments are a vain effort to recast what

is merely a d isagreement wit,h the trial

court's factual findings into a dispute

abou! some unstated and unknown issue of

i aw.

The government does not suggest that

the trial court I s factual finding of

racially polarized voting was erroneous,

or discuss the extensive evidence on which
11

that. f inding was based. Rather, the

government asserts that, the trial court,

although apParently justified in finding

racially polarized voting on the record in

this case, adopted an erroneous "defini-

ffiolicitor suggest that there
was any error in t.he exhaustive subsidiary
factual findings that supported the trial
court's f act,ual f inding that there was
racial bloc voting.



13

tion of racial bloc voting'. (U.S. Br.

1 3 ) . Nothing in the trial court I s

opinion, however, purPorts to be a

'definition' of bloc voting, or to set any

mechanical standard regarding what degree

and frequency of racial polarization is

necessary to support a section 2 claim.

Nothing in that opinion suPPorts the

governmenE's assertion that the trial

court would have found racial polarization

whenever less that 50t of white voters

voted for a black candidate. In this

case, over the course of some 53 elec-

tions, an average of over 81t of white

voEers refused to support any black

candidate. (J.S. App. 40a). In a ,substan-

tial number of elections less than 10t of

whites voters voted for the black candi-

date who carried the vast majority of

minority votes. (J.S. App. 45a-45a) . In

the five elections where a black candidate



14 -

ras unopposed, a majorit'y of whites were

so det,ermined not to support a black that

they voted f or no one rather t'han the

black candidate. (J.S. App.44a). While

the level of white resistence to black

candidates eas in other instances less

extreme, the trial court w.as certginl'y

justified in concluding that there was

racial polar izat,ion, and the Solicitor

General does not suggest otherwise.

The factual issues presenEed by this

case are admittedly intriguing, and the

admixture of racial and political ques-

t ions involved is entic ing . But the

limitations imposed by RuIe 52 are rarely

necessary in uninteresting and uncon-

troversi.aI cases. The SoliciEor General

urges t,his Court to note proba.ble juris-

diction so that,, laying aside the policy

of appellate self-restraint announced in

Pullman St.andard v. Swint, 456 U.S. 273



15 _

( 1 98 1 ) , and its Progeny, the Court can

embark upon its own inquiry into the

diverse nuances of racial politics in

Cabarrus , Forsyth, Wake, I{ilson, Edge-

combe I Nash , Durham, and }lecklenburg

Counties. Twice within the last month,

however, this Court has emphatically

admonished the courts of appeals against

such undertakings. Anderson v. City of

Besserner City,

v. Iiainwright,

in the present. term this Court has

summarily affirmed similar fact.bound

appedls from district court decisions

re j ect ing section 2 claims. ry-
seamon, No. 83-1823 (October 1, 1984);

Brooks v. A11ain, No.83-1855 (Nov.13.

1984). No different standard of review

should be applied here merely because in

this section 2 case the Prevailing party

happened to be the plaintiffs.

U. S. ( 1985), wiet

u.s. ( 1985). Twice



16

Appellees in this case did not seek,

and the court below did not orderr anY

guarantee of ProPortional rePresentation.

Prior to this litigation only 4 of the 170

menbers of the North Carolina legislature

rere black;.today there are still only 16

black members, less than I Ot., a f ar

smal ler ProPortion than t'he 23 .8t of t,he

population who are black. Whites, who are

Iess than 75t of the stat,e population,

hold more t,han 91 t of Ehe seats in the

1eg islature.
In the past t,his Court has f requently

deferred to the views of the Attorney

General with regard to the interpretation

of section 5 of the Voting Rights Act. No

such deference is warranted with resPect

to sect,ion 2. Although the Department of

Justice in 1955 drafted and serongly

supported enactment of section 5, the

Department in 1 98 1 and 1982 led the



17-

oppositlon to the anendncnt of scetion 2t

acqulesclng in the adoptton oC thet

provtslon only after congresaional

approval ras unavoidablc. fhe Attorney

General, although dlrectly responelble for

thc adninlgtration of cactlon 5r haa no

sintlar rolc ln the cnforcencnt of sectlon

2. llhcre, as rhercl a voting rights clain

turns prilarily on a factual diePute, the

decislons of this Court requlre that

deference be pald to the Judge or judges

sho heard the case, not to a JuEtice

Departnent offlclal, horcver vell lnten-

tioned rho nay.havc rced sone portlon of

the record. @, 112 U.S.

755, 769 ( 1973). The vlers of the

Departnent, are entitlcd to even }ess

weight, uhenr ls in thia case, th Solicitor
present clain that at-large districts

'enhance' the interests of ninority voters

in North Carollna rePresents a conplete



t8 -

reversal of the 1981 position of the Civil

Rights Dlvlsion obJectilng that such

dirtrlcts ln North Carollnf 'necegsarll'y

sublerge I I cognlzablc nlnorlty lnpulatton

conecntratlons lnEo large rhite clee-

toraEes.' (J.S. APP.l 6a).

coNcrosroN

For the above reason, the Judgnent of

the district court should be sinilarLy

effirued.

Respectfully subnitted,

JUEfUS L; CEAI,iBERS
LANI CUINIERT

NAACP Iegal Defense and
Educational Fundr Inc.

99 Eudson St,reet
l5th Floor
New Yorkr-New York 10013
1212) 219-1900



19 _

LESTIE J. T{INNER
Ferguson, Watt, Wallas

and Adkins, P.A.
951 South fndePendence Blvd.

Charlotte, North Carolina 28202

Attorneys for Appellees

*Counsel of Record