Brief Amicus Curiae of the Republican National Committee in Support of Appellees

    ) 

No. 83-1968 

IN THE 

~uprrmr Qinurt nf tijr Uuitrb ~tutr!i 
OCTOBER TERM, 1985 

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 AMICUS CURIAE OF THE 
REPUBLICAN NATIONAL COMMITTEE 

IN SUPPORT OF APPELLEES 

* Counsel of Record 

August 30, 1985 

ROGER ALLAN MOORE * 
E. MARK BRADEN 

MICHAEL A. HESS 

310 First Street, S.E. 
Washington, D.C. 20003 
(202) 863-8638 

Attorneys for Amicus Curiae 
Republican National Committee 

WILSON· EPES PRINTING CO .• INc. · 789-0096 ·WASHINGTON. D.C. 20001 





TABLE OF CONTENTS 
Page 

TABLE OF AUTHORITIES ·--------------------------·----·----------- ii 

INTEREST OF THE AMICUS·------ -- -----··--· -----·-·-- -··------- 1 

SUMMARY OF ARGUMENT----------------------·----·-··---·---·---· 2 

ARGUMENT·-----------------------------··---------------------··------------ --·-- 3 

I. The District Court P roperly Refused to Guar-
antee Proportional Minority Representation ·------ 3 

II. The District Court Properly Deferred to Legis-
lative Priorities In Considering A Remedy ·---- ---- 7 

III. The District Court's Findings of Fact Are Not 
Clearly Erroneous, But Are Based On A Par-
ticularly Localized Factual Record ·--------------- ----- 9 

CONCLUSION .................................................................... 12 



ii 

TABLE OF AUTHORITIES 
CASES Page 

Anderson v. City of Bessemer City,-- U.S.--, 
53 U.S.L.W. 4314 (Mar. 19, 1985) ______ _______ ______ ___ 9, 10 

City of Mobile v. Bolden, 446 U.S. 55 (1980) ·--------- 3 
Davis v. Bandemer, 603 F. Supp. 1479 (S.D.Ind. 

1984), prob. juris. noted, No. 84-1244 (Mar. 29, 
1985) · - - -- - - -- ---- - - - -- ---- - - ------ - - --- -~ - ----- - - ---- - ---- - - -------------- - - - 2, 4 

Gingles v. Edmisten, 590 F. Supp. 345 (E.D.N.C. 
1984), prob. juris. noted sub nom. Thornburg v. 
Gingles, No. 83-1968 (Apr. 29, 1985) _____ 3, 5, 6, 7, 8, 10 

Hunter v. Erickson, 393 U.S. 385 (1969) ·-------- -------- 4 
Karcher v. Daggett, 462 U.S. 725 (1983) _________ ________ 2 
Pullman-Standard v. Swint, 456 U.S. 2,73 (1982) __ 11 
United Jewish Organizations v. Wilson, 510 F'.2d 

512 (2d Cir. 197 4), aff'd sub nom. United Jewish 
Organizations v. Carey, 430 U.S. 144 (1977) ___ _ 3 

United States v. United States Gypsum Co., 333 
u.s. 364 (1948) ·- ----------- -------------------------·----------- ----- 9 

Upham v. Seamon, 456 U.S. 37 (1982) ------- --- --- -------- 8 
Washington v. Seattle School District No. 1, 458 

u.s. 457 ( 1982.) ·-------- ------ -- ------ ------------------- ----------- 4 
White v. Weiser, 412 U.S. 783 (1972) --------------------- 8 
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) (per curiam) -------- ·------------ 4 

STATUTES 

The Voting Rights Act of 19·65· (codified as 
amended at 42 U.S.C. § 1973 (1982)) ________ 3, 5, 6, 7, 10 

OTHER 

Howard and Howard, The Dilemma of the Voting 
Rights Act-Recognizing the Emerging Political 
Equality Norm, 83 Colum. L. Rev. 1615 (1983) __ 4 

Rule 52, Federal Rules of Civil Procedure _____ _________ 9, 10 
Senate Comm. on the Judiciary, Report on the 

Voting Rights Act. Extension, S. Rep. No. 417, 
97th Cong., 22d Sess. 193 (1982), reprinted in 
1982 U.S. Cong. Code & Ad. News 177 -----------·---- 5 



IN T 'HE 

~upr.rm.r OJnurt nf t4.r l!tuit.r~ ~tat.ra 
OCTOBER TERM, 1985 

No. 83-1968 

· LACY H. THORNBURG, et al., 

v. Appellants, 

RALPH GINGLES, et al., 
Appellees. 

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

BRIEF AMICUS CURIAE OF THE 
REPUBLICAN NATIONAL COMMITTEE 

IN SUPPORT OF APPELLEES 

The Republican National Committee submits this brief 
as amicus curiae in support of appellees' claim that the 
judgment of the United States District Court for the 
Eastern District of North Carolina, entered on January 
27, 1984, together with its supplemental judgment of 
April 20, 1984, should be affirmed. Pursuant to Rule 
36.2, all parties to this _ appeal have given their written 
consent to the filing of this brief. Copies of the letters 
of consent have been filed with the Clerk of the Court. 

INTEREST OF THE AMICUS 

The Republican National Committee (RNC) submits 
this brief on its own behalf, and on behalf of Robert 
Bradshaw, Charlotte, North Carolina, Chairman of the 



North Carolina Republican Executive Committee and a 
member of the Republican National Committee. 

The RNC has participated in a variety of election law 
and voting rights cases before this Court as either a 
party or amicus, most recently in Karcher v. Daggett, 
462 U.S. 725 (1983), and Davis v. Bandemer, 603 F. Supp. 
1479 (S.D. Ind. 1984), prob. juris. noted, No. 84-1244 
(Mar. 29, 1985). The RNC and its membership support 
fair and effective representation for all the citizens of 
North Carolina in their state legislature and believe that 
the judgment of the court below effects such a result. 

The amicus also believes that the appellants misrep­
resent both the nature of legislative representation in 
North Carolina and the effect of the judgment below. 

SUMMARY OF THE ARGUMENT 

The amicus Republican National Committee takes issue 
with the argument of the appellants that the judgment 
of the district court either implicitly or explicitly im­
posed a requirement of proportional representation for 
blacks in the North Carolina legislature. The district 
court's initial, January 27, 1984, opinion reveals no 
attempt at maximization, and the court's April 20, 1984, 
supplemental clearly demonstrates that the court rejected 
the notion of maximization or proportional representa­
tion that appellants now attempt to ascribe to the court. 

Rather than impose what the court thought, intui­
tively, to be the plan which did maximize black electoral 
chances-a plan the plaintiffs themselves proposed to the 
court-the district court instead deferred to the priori­
ties established ~by the North Carolina legislature and 
adopted the state's plan as a remedy. 

In reaching its conclusions in both its initial and sup­
plemental opinions, the district court reviewed a complex 
factual scenario, and its findings as to both subsidiary 
and ultimate · facts should be sustained unless clearly 



erroneous. The facts in this case are peculiarly local in 
nature, the determination of which is particularly suited 
to the district court. Not only was. the district court's 
finding as to a key fact-. the presence' of polarized vot­
ing-not clearly erroneous, the expert testimony upon 
which the court based its 'finding was not seriously con­
tested. The amicus believes that this case is bound by 
its particular facts, and is an inappropriate vehicle for 
considering the merits of the standards for review under 
Section 2 of the Voting Rights Act. 

ARGUMENT 

I. The District Court Properly Refused to Guarantee 
Proportional Minority Representation. 

Of particular interest to the RNC as amicus is the 
appellants' claim that, since minority voters have no 
right to the creation of districts which would yield repre­
sentation in proportion to their numbers, the district 
court erred in finding a Voting Rights Act violation. 

It is clear that the Voting Rights Act, and in particu­
lar, Section 2 of the Act, imposes no requirement that 
any minority achieve representation in proportion to its 
numbers in the population. The statute, as amended in 
1982, provides that "nothing in this section establishes 
a right to have members of a protected class elected in 
numbers equal to their proportion in the population." 
42 U;S.C. § 1973 (1982). This language is consistent with 
this Court's approach to the question of proportional rep­
resentation in both constitutional and statutory voting 
rights cases.1 The district court explicitly recognized and 
adopted that approach in its opinion. Gingles v. Edmis­
ten, 590 F. Supp. 345, 355 (E.D.N.C. 1984): 

1 City of Mobile v. Bolden, 446 U.S. 55, 69 (1980) ; United Jewish 
Organizations v. Wilson, 510 F.2d 512 (2d Cir. 197 4), ajj'd sub nom. 
United Jewish Organizations v. Carey, 430 U.S. 144 (1977). 



Nor does the fact that blacks have not been elected 
under a challenged districting plan in numbers pro­
portional to their percentage of the population [alone 
establish that vote dilution has resulted from t he dis­
tricting plan.] (Citing 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) (per curiam). 

The amicus Republican National Committee has histori­
cally been a proponent of strong, majoritarian govern­
ment in the United States. Ours is not, nor should it be, 
a proportional system of government. The views of the 
RNC in this regard were set forth in detail in another 
voting rights case pending before this Court, Davis v. 
Bandemer, No. 84-1244.2 

2 Instead of requiring that legislatures do the impossible by pro­
viding proportional r epresentation for all political interests, this 
Court has prudently required only that the electoral process be 
structured in ways that permit each voter an equal opportunity to 
select his legislative representative and thereby be given an equal 
chance to influence public policy. This Court's focus must continue 
to be on emphasizing procedural fairness in the political process 
by requiring that r edistricting laws "provide a just framework 
within which the diverse political groups in our society may fairly 
compete." Washington v. Seattle School Dist. No. 1, 458 U.S. 457, 
470 (1982), (citing Hunter v. Erickson, 393 U.S. 385, 393 (1969) 
(Harlan, J., concurring)). 

The RNC ecxplicitly rejects the notion that the creation of "safe" 
minority districts is the only available remedy under Section 2 of 
the Voting Rights Act, and agrees with the appellants that such a 
rule of law would be undesirable. The creation of permanent, safe 
districts for any minority, racial or political, is antithetical to our 
majoritarian system of government, and institutionalizes the very 
proportional government this Court has rejected. In its brief in 
Davis v. Bandemer, supra, the RNC argued strongly that legislative 
districts which are designed to be non-competitive to the exclusion 
of one political party are both constitutionally and philosophically 
repugnant. The inherent tension between proportional representa­
tion in racial equal protection cases and what has been called the 
"emerging political norm" has been recognized and discussed at 
length in Howard and Howard, The Dilemma of the Voting Rights 



5 

The amicus does not dispute the appellants' contention 
that Congress clearly had no intention to invalidate dis­
tricting plans where minority candidates have had an 
equal ·opportunity to be elected, even if they did not 
necessarily win a proportional share of the seats. How­
ever, while no group has either a statutory or constitu­
tional right to proportional representation, the statute 
does not prohibit any consideration of the relative repre­
sentation of a protected class. In fact, the 1982 amend­
ments do permit consideration of "the extent to which 
members of the minority group have been elected to 
public office in the jurisdiction" as part of the "totality 
of circumstances" which may be probative of vote dilu­
tion. S. Rep. No. 417, 97th Cong., 2d Sess. 193 reprinted 
in 1982 U.S. Code Cong. & Ad. News 177, 206-07. In 
assessing the success of black candidates, the court below 
concluded that: 

[The] success that has been ~achieved by black candi­
dates is, standing alone, too minimal in total num­
bers and too recent in relation to the long history of 
complete denial of any elective opportunity to com­
pel or even arguably to support an ultimate finding 
that a black candidarte's race is no longer ra signifi­
~cant factor in the political processes of the state­
either generally or specifically in the areas of the 
challenged districts. 509 F. Supp. at 367. 

The appellants correctly point out that "Section 2 of 
the Voting Rights Act does not entitle protected minor­
ities ... to safe electoral districts simply because a mi­
nority concentration exists sufficient to create such a 
district." Appellants' Brief at 19. However, the appel­
lants then suggest that the opinion below mandates just 
that sort of proportional representation. 

Act-Recognizing the Emerging Political Equality Norm, 83 Colum. 
L. Rev. 1615 (1983). That tension, however, does not exist in this 
case because the district court did not endorse but rather, explicitly 
rejected a maximization plan. 



6 

The appellants attempt to isolate the remedial action 
of the district court from its initial judgment. This pre­
sents an incomplete picture of the district court's rea­
soned approach to the proportional representation issue. 

After the district court enjoined certain elections un­
der the challenged plan, the North Carolina General 
Assembly responded by enacting, in the form of six new 
bills, a redistricting plan creating new boundaries for 
each of the invalidated districts. On March 12, 1985, 
the state submitted these plans to the district court for 
its approval, and contemporaneously submitted the plan 
to the Attorney General of the United States for pre­
clearance insofar as the changes affected districts cov­
ered by Section 5 of the Voting Rights Act. 

Three days later, on March 15, the plaintiffs objected 
to the proposed plan and requested modifications, in par­
ticular with respect to the areas covered by former House 
Districts 8 and 36. The district court denied the plain­
tiffs' motion for further depositions and a hearing on 
the question of the remedial adequacy of the state's plan, 
and resolved to decide the question of the state's com­
pliance on the record as then extant. 590 F. Supp. at 377. 

Although they did not concede the plan's validity in 
other respects, the plaintiffs objected specifically to the 
area comprising the Mecklenburg district, contending 
that the plan fractured substantial black population con­
centrations. These populations were insufficient to con­
stitute another voting majority, but plaintiffs argued 
that they might, nonetheless, give that minority popula­
tion considerable voting power as a substantial voting 
minority in at least one of the newly constructed single 
member districts. ld. at 379. This newly "packed" dis­
trict would have contained a black population of 44.7 
percent. ld. at 380 n.l. By contrast, none of the white 
majority districts under the state's plan contained black 
populations in excess of 28.2 percent. Id. 



7 

The court characterized the plaintiffs' proposal as re­
quiring that "a state redistricting plan adopted to rem­
edy judicially found dilution by submergence (or frac­
turing) of effective vote majorities must not only remedy 
the specific violation found but also maximize . . . the 
voting strength of those black voters outside the reme­
dially drawn single-member districts." ld. The court 
wisely rejected the plaintiffs' invitation to maximize mi­
nority voting strength, relying upon Section 2 jurispru­
dence and equitable considerations. Id. at 382. 

The court's factual findings led it to a conclusion that 
the challenged plan violated Section 2. Having so de­
termined, the court's January 27 opinion must be re­
viewed together with its supplemental opinion. By ex­
plicitly rejecting, in its supplemental opinion, a proposal 
that would have maximized minority voting strength, the 
district court demonstrated that its goal was not propor­
tional representation. The district court's opinion does 
not hold that blacks-or any minority-· are entitled to pro­
portional representation. Remarkably, appellants failed 
to reproduce this supplemental opinion in their J urisdic­
tiona1 Statement, but instead invoked this Court's juris­
diction on the basis of an incomplete record. 

II. The District Court Properly Deferred to Legislative 
Priorities In Considering A Remedy. 

Even prior to the remedial stage of this litigation, the 
district court resolved to defer to "the primary jurisdic­
tion of state legislatures over legislative reapportion­
ment." 590 F. Supp. a.t 376. The court noted that this 
was especially appropriate where the legislature had been 
afforded no previous legislative opportunity to assess the 
substantial new requirement under the 1982 amendments 
to Section 2 of the Voting Rights Act for affirmatively 
avoiding racial vote dilution rather than merely avoiding 
its intentional imposition. ld. 



8 

Furthermore, the court recognized "the difficulties 
posed for the state by the imminence of 1984 primary 
elections" and offered to convene at any time upon the 
request of the state to consider and promptly rule upon 
proposed remedies. I d. 

In its supplemental opinion, the district court recog­
nized that neither the Voting Rights Act nor equitable 
considerations require-· and neither do they permit--"the 
rejection of a legislative plan simply because the review­
ing court would have adopted another thought to pro­
vide a better, more equitable overall remedy for the 
originally found vote dilution." 590 F. Supp. at 382. The 
court noted that such a principle of judicial deference to 
legislative aims clearly applies in constitutional redis­
tricting cases, White v. Weiser, 412 U.S. 783, 794-97 
(1972), and properly extended that deference to its anal­
ysis under the Voting Rights Act. Cf. Upham v. Seamon, 
456 u.s. 37 (1982). 

The court refused to accept plaintiffs' suggestion that 
racial vote dilution may be found "not only with respect 
to aggregations of black voters l'arge enough to make up 
effective voting majorities in single-member districts., but 
with respect to smaller aggregations as well," and that 
dilution in that sense resulted from the s.tate's remedial 
plan with respect to black aggregations outside the re­
medially-created single-member districts. 590 F. Supp. 
at 380. In considering whether, under the circumstances 
of a particular case, a 28.2 percent black minority may 
have less voting strength than a 45 percent minority, the 
court noted that such a determination depended, among 
other things, upon the philosophical-political makeup of 
the population majorities in the district. 

The court refused to substitute its "intuitive" sense 
that the overall voting strength of blacks might be en­
hanced by packing them into a 45 percent minority dis­
trict and, as a result, refused to substitute the plaintiffs' 
proposal for the state's. 



9 

III. The District Court's Findings of Fact Are Not Clearly 
Erroneous, But Are Based On A Particularly Localized 
Factual Record. 

Rule 52 (a) of the Federal Rules of Civil Procedure 
provides that findings of fact shall not be set aside un­
less clearly erroneous, with due regard to be given to 
the· opportunity of the trial court to judge the cred­
ibility of the witnesses. Fed. R. Civ. P. 52 ( 1984). This 
Court has enunciated general principles governing the 
exercise. of an appellate court's power to overturn find­
ings of a district court and has stated that the "fore­
most of these principles ... is that 'a finding is "clearly 
erroneous" when although there is evidence to support 
it, the reviewing court is left -with the definite and firm 
conviction that a mistake has been committed.' . United 
States v. United States Gypsum Co., 333 U.S. 364, 395 
(1948) ." Anderson v. City of Bessemer City, -- U.S. 
-,53 U.S.L.W. 4314 (Mar. 19, 1985). 

As this Court recently emphasized in Anderson, supra, 
"this standard plainly does not entitle a reviewing court 
to reverse the finding of the trier of fact ,,simply because 
it is convinced >that it would have decided the case dif­
ferently." Id. 

The appellants' principal objection to the opinion be._ 
low is the district court's findings with respect to racial 
polarization. AppeUant's Brief at 27, 34-35. While the 
amicus is not in a position to express a view as Ito whether 
or not racially polarized voting does exist in North Caro­
lina, we do believe that the district court's determination 
that it does exis·t was not clearly erroneous. In fact, there 
was no significant difference in the >testimony of opposing 
experts on this issue. 

Plaintiff's expert, Dr. Bernard Grofman, used an "ex­
treme case" analysis (focusing on voting in racially seg­
regated precincts) and an "ecological regression" analysis 
(focusing on both racially segregated and racially mixed 



10 

precincts). Determining that :the results. under both anal., 
yses conform closely in most areas, Pr. Grofman opined; 
and the court found, that racial polarization did exist and 
was statistically significant. 590 F~ Supp. at 367-368 and 
n.29. 

Defendants' expert, Dr; Thomas Hofeller, had s>tudied 
Dr. Grofman:'s data and heard his live testimony. The 
court noted that, "[a] side from two mathematical or 
typographical errors, Dr. Hofeller did not question the 
accuracy o~ the data, its adequacy as a reliable sample 
for the purpoS'e used, nor that the methods Olf analysis 
used were standard in the .literature." !d. at 368. While 
Dr. Hofeller did question the reliability of an extreme 
case analysis when standing alone, the ·court noted that 
he had made no specific suggestion of error in ·the figures 
used. 

The court further noted that the general accuracy and 
reliability of Dr. Grofman's data were confirmed by the 
testimony of Dr. Theodore Arrington, expert witness for 
the intervenor-'plaintiffs. "Proceeding hy a somewhat dif­
ferent methodology and using different data, Dr. Arring­
ton came to the same. general conclusion respecting the 
extent Olf racial polarization .... " ld. at 368 n.29. 

The district court's finding on this subsidiary fact was 
not the subject of extensive dispute between the parties' 
experts, but was a reasonable finding about which there 
was, in fact, some degree of agreement among the ex­
perts. As this Court has recently confirmed : 

[When]- a trial judge's finding is based on his deci-
. sion . to credit .the testimony of one of two or more 

witnesses, each of whom has told a coherent and 
facially plausible story that is not contradicted by 
e:xitrinsic evidence, that finding if not internally in­
consistent, can virtually never be clear error. An­
derson v. City of Bessemer City, supra at 4317. 

Nor does Rule 52 make an exception to applying the 
clearly erroneous standard to this finding on the basis 



11 

that it is merely one of several subsidiary facts. The 
rule does not make exceptions or purport to exclude cer­
tain categories of factual findings from the obligation of 
an appellate court 1to accept ,the district court's findings. 
The rule "does not divide facts into categories; in partic­
ular it does not divide findings of fact into those that deal 
wi,th 'ultimate' facts and those that deal with 'subsidiary' 
facts." Pullman-Standard v. Swint, 456 U.S. 273, 287 
(1982). 

The facts in this case lend themselves to a local consid­
eration particularly suited to the trial court. The facts 
in this case are further complicated by North Carolina's 
schizophrenic status under the Voting Rights Act. Only 
40 of its 100 counties are subject to the preclearance pro­
visions of Seciion 5 of the Act, and that div:ided coverage 
results in different standards of review within the same 
state under the two sections of the Act. 

The numerous factual discrepancies in the briefs on 
appeal have further muddied an already obscure factual 
record. Supplemental Briefs of Appellees and Appellees­
Intervenors. These disputes, and the particularly localized 
circumstances in this case, make it an inappropriate vehi­
cle for a comprehensive review by this Court of the sub­
stance of, and standards under, the 1982 Amendments to 
the Voting Rights Act. 

The three members of the district ,court panel were resi­
dents of North Carolina who conscientiously sorted the 
complex local factual issues presented to them. · In such a 
case, deference to the factual findings of the district 
court is particularly warranted. 



12 

CO~CLUSION 

The decision of the United States District Court below 
should be affirmed. -

* Counsel of Record 

August 30, 1985 , 

Respectfully submitted, 

.ROGER ALLAN MOORE * 
E. MARK BRADEN 
MICHAEL A. HESS 

310 First Street, S.E. 
Washington, D.C. 20003 
(202) 863-8638 

Attor.neys for Amicus Curiae 
RepupZican National Committee 







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