Brief of Amicus Curiae the Washington Legal Foundation in Support of Appellants

    rr/

No. 83-1968

 

 

IN THE

5711um (11:11:11 Hi the ”finiiph 57mins

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 OF AMICUS CURIAE
THE WASHINGTON LEGAL FOUNDATION
IN SUPPORT OF APPELLANTS

DANIEL J. POPEO

GEORGE C. SMITH *
WASHINGTON LEGAL FOUNDATION
1705 N Street, NW.
Washington, DC. 20036
(202) 857-0240

Attorneys for A m’icus Curiae
Washington Legal Foundation

* Counsel of Record

 

 

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QUESTIONS PRESENTED

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

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

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

' Act.

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

0)

 

 

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED _____________________________________________ i

TABLE OF AUTHORITIES ............................................ v

INTERESTS 0F AMICUS CURIAE .............................. 1

STATEMENT OF THE CASE ________________________________________ 3

SUMMARY OF ARGUMENT ________________________________________ 3

ARGUMENT ....................................................................... 4
I. THE DISTRICT COURT ERRED IN INTER—
PRETING THE VOTING RIGHTS ACT AS
THOUGH IT GUARANTEES MINORITIES
“SAFE” DISTRICTS ENABLING THEM TO
CONTROL ELECTION OUTCOMES BY RA-

CIAL BLOC VOTING ............................................ 6

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

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

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

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

II. THE DISTRICT COURT ERRED IN ITS
CRITICAL RELIANCE ON THE FACTOR OF
“POLARIZED VOTING", WHICH IS TOTAL-

LY INVALID AS AN INDICATOR OF VOT-
ING RIGHTS ACT VIOLATIONS ...................... 18

(iii)

 

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iv ’
TABLE OF CONTENTS—Continued
Page

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

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

CONCLUSION .. 26

 

 

 

V

TABLE OF AUTHORITIES

Cases Page
Anderson v. Martin, 375 US. 399 (1964) .................. 12, 25
Collins v. City of Norfolk, 605 F.Supp. 377 (ED.

Va. 1984) ................................................................. 4, 20, 24
Davidson v. Gardner, 370 F.2d 803 (6th Cir. 1967).. 16
Dove v. Moore, 539 F.2d 1152 (8th Cir. 1979) ........ 7-8
In Re Evans, 452 F.2d 1239 (DC. Cir. 1971), cert.

denied, 408 US. 930 (1971) ' _____________ 16
General Building Contractors Association, Inc. v.

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

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

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

(D.Miss. 1982) ......................................................... 1.9
Kirksey v. City of Jackson, 633 F.2d 659 (5th Cir.

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

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

v. US. Postal Service, 103 S.Ct. 2717 (1983) ...... 17

Porter v. Murray, 69 F.Supp. 400 (D.D.C. 1946).... 16
Seaman v. Upham, 536 F.Supp. 931 (E.D.Tex.
1982) , aff’d. sub nom Strake v. Seamon, 105 S.Ct.

63 (1984) .................................................................... 7, 11
Terrazas v. Clements, 581 F.Supp. 1329 (D.Tex.

1984) ....................................................................... 7, 11, 24
United States v. Marengo County Commission, 731

F.2d 1546 (11th Cir. 1984) .................................... 18
United Steelworkers v. Weber, 444 US. 193

(1979) ....................................................................... 2
White v. Regester, 412 US. 755 (1973) ................... 10

Constitutional and Statutory Authorities

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

 

 

vi

TABLE OF AUTHORITIES—Continued

Legislative History Page

HR. 3112 15
S. Rep. No. 97-417, 97th Cong, 2d Sess. (1982)...... 14—18

 

Miscellaneous Authorities

Levy and Kramer, The Ethnic Factor: How Amer-
ica’s Minorities Decide Elections (Simon &

 

 

 

Schuster, 1972) ......................................................... 22
K. Davis, Administrative Law Treatise Sec. 3A.31

(1970 Supp.) . ........... 16
Election ’84 Handbook, National Journal (Oct. 29,

1983) . . 5, 22

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

 

 

 

 

IN THE
Summit (Emmi of the Thatch Stairs
OCTOBER TERM, 1985

No. 83-1968

LACY H. TIIORNBURG, et al.,
Appellants,
V.

RALPH GINGLES, et al.,
Appellees.

0n Appeal from the United States District Court
for the Eastern District of North Carolina

BRIEF OF AMICUS CURIAE
THE WASHINGTON LEGAL FOUNDATION
IN SUPPORT OF APPELLANTS

INTERESTS OF AMICUS CURIAE

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

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

2

WLF focuses its litigation efforts on cases of nation-
wide significance affecting the liberties and values of its
members. The Foundation has been especially active in
cases challenging misguided and overbroad applications
of federal civil rights laws. For example, WLF has filed
amicus briefs with this Court in such cases as Memphis
Firefighters v. Stotts, 104 S.Ct. 2576 (1984); General
Building Contractors Associatvbn, Inc. 1). Pennsylvania,
102 S.Ct. 3141 (1982); and United Steelworkers v.
Weber, 444 US. 193 (1979). In these cases, WLF has
consistently pressed the view that the civil rights laws
provide legal protection for all Americans and cannot be
invoked to justify reverse discrimination or exacting rep—
arations from any class of citizens.

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

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

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

 

3

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

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

STATEMENT OF THE CASE

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

SUMMARY OF ARGUMENT

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

4

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

ARGUMENT
Preliminary Statement

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

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

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

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

 

5

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

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

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

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

tration and turnout among blacks than among whites in Norfolk,
Virginia.) In the 1982 Congressional elections, blacks turned out
to vote at a higher rate than whites in nine states. See. National
Journal, Election '8/; Handbook, p. 2208 (Oct. 29, 1983).

6

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

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

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

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

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

The VRA does not compel the creation of electoral
districts or systems which will allow minority bloc vot—
ing to dictate the outcome of elections wherever there
are sufiicient raw numbers of minorities from which
to fashion such districts. Rather, the Act requires only
that electoral districts must not be designed to prevent
minorities from enjoying equal access to the political

process and an equal opportunity to elect representatives
of their choice. 42 U.S.C. Sec. 1973 (b) .

Under that legitimate standard, the challenged North
Carolina districts easily pass muster. The record con-
tains comprehensive evidence proving that minority vot-
ing has had a telling effect on the political power struc-
ture and that black candidates have enjoyed substantial
success in key election races. J .8. App. 34a-37a; 47a.

 

7

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

Various decisions have recognized that there can be
no cognizable violation of Section 2 in a district where
minorities have achieved substantial success in gaining
access to key elective offices and political posts. E.g.,
Dove 1). Moore, 539 F.2d 1152 (8th Cir. 1979). A find-
ing of consistently adverse electoral results for minority
candidates is a necessary, though not a sufficient, ele—
ment of a Section 2 claim under the results test. See
Seaman v. Upham, supra; Terrazas v. Clements, 581
F.Supp. 1329 (D.Tex. 1984).

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

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

8

produce, on the County Commission, the County Board of
Elections, and the County Democratic Party leadership.
This degree of proven minority access to key political
offices is in itself incompatible with a claim of unlawful
vote dilution. Dove ’0. Moore, 539 F.2d at 1153-55.

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

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

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

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

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

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

 

9

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

The court below, however, was wholly indifferent to
this evidence of extensive black access, participation, and
success in the political processes of the districts in issue.
It was less concerned with the hard fact that blacks were
winning major elections at all levels than it was with
lamenting upon the historical consequences of “past dis—
criminatory” practices or the abstract implications of so—
called “polarized voting”. And it was so preoccupied
with the misbegotten notion that racial bloc voting by
minorities2 must be allowed to control election outcomes
that it failed to recognize that blacks were already en—
joying full and fair participation in the election processes
without the divisive racial gerrymandering demanded by
this decision.

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

The District Court set an erroneous course from the
outset of its decision, when it stated as follows (J .8. App.
at 14a) :

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

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

 

10

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

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

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

The true holding of White is highly important to cur-
rent Section 2 analysis, because the single point on which
most Congressional elements agreed in passing the 1982
amendments was that they were intended to codify the
principles of decision in White v. Regester. Yet one will
search in vain for any mention (much less any signifi-
cant mention) of polarized or racial bloc voting in White
v. Regester’s discussion of the various elements of a vote

dilution claim under the VRA. See 412 US. at 766-67. ,

In fact, the source of the district court’s heavy reliance
on the polarized voting factor was not White v. Regester
at all, but rather the inaccurate portrayal of White v.
Regester set forth in a controversial segment of the leg-

 

11

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

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

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

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

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

 

C. The Court Applied :1 Clearly Erroneous Interpreta-
tion of Illegal Vote Dilution

The overinclusive concept of illegal vote dilution relied

, on by the district court completely distorts the principle

of equal political access which underlies the Voting Rights
Act. Equal opportunity for minorities to participate in
the elective process does not——cannot—include any re—

12

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

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

[T]he demonstrable unwillingness of substantial
numbers of the racial majority to vote for any mi-
nority race candidate or any candidate identified
with minority race interests is the linchpin of vote
dilution by districting. [J .8. App. 14a-15a.]

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

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

Thus, the district court repeatedly emphasized its view
that the most critical component of the Violations in this
case—and the “single most powerful factor” in finding a
vote dilution violation—was the failure (or “unwilling-

ness”) of white citizens to vote in essentially the same-

way as black citizens. When one reads between the lines
of the foregoing pronouncements, it is evident that the
court is issuing a nonetoo—subtle warning to North Caro-
lina’s white voters. The warning is that unless they start
to vote for minority candidates (regardless of the candi-
date‘s individual merit or qualities) in “substantial num-
bers”, the court will continue to hold that there is ‘,‘racial
vote dilution” in their districts. And as long as. the court
holds that view, it will continue to invalidate and enjoin
the district’s elections.

 

13

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

This crabbed and punitive approach to voting rights
law abandons the basic element that Section 2 of the
VRA can only be violated by the discriminatory prac-
tices and policies of governments; Section 2 cannot be
violated by citizens in the exercise of their absolute First
Amendment right to vote for the candidate they prefer,
for whatever reason. Kiricsey, supra, 663 F.2d at 662.“
The district court’s opinion erred in failing to grasp this
distinction.

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

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

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

14

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

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

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

 

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

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

 

15

compromise. Instead, it reflects only the one—sided aspira—
tions of a faction of Judiciary Committee Senators who
favored the most expansive interpretation of Section 2

~they could promulgate without killing the legislation

altogether.

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

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

[T]hat is the thrust of our compromise: equal ac-
cess, whether it is open; equal access to the political
process, not whether they have achieved proportional
election results. 1,

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

Moreover,~there is no plausible basis for viewing the
Senate Judiciary Committee Report—which was intensely
disputed even within that one committee of one House—
as though it reflected the consensus understanding and
intent of both Houses, as well as that of the President.
It simply did not. It reflected only the subjective views

16

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

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

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

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

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

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

 

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

 

17

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

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

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

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

Here, in the same vein, the views of those who sought
the most expansive wording of Section 2 likewise cannot
control interpretation of the compromise legislation. Yet,
there can be no doubt that the Senate Judiciary Commit—.
tee Report primarily reflects the views of Senators
Mathias“ and Kennedy—the same two senators who had
originally introduced a Senate Bill which was identical
to the far more liberal House-passed bill (HR. 3112).
Since neither the House nor the President ever approved
or joined in the Senate Committee Report, it is totally
invalid for courts to place such critical emphasis on its
content in construing the statute. National Association
of Greeting Card Publishers v. U.S. Postal Service, 103
S.Ct. 2717, 2731 11.28 (1983).

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

 

0It was Senator Mathias who “filed the majority views of the
Committee". S.Rep. at 1.

mW—v __.. .. ._.

18.

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

II. THE DISTRICT COURT ERRED IN ITS CRITICAL
RELIANCE ON THE FACTOR OF “POLARIZED
VOTING”, WHICH IS TOTALLY INVALID AS AN
INDICATOR 0F VOTING RIGHTS ACT VIOLA-
TIONS

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

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

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

“single most powerful factor” underlying violations of
the VRA. Id.

It is painfully clear that the court’s concept of po—
larized voting, and its application of that concept to the
facts of this case, was the “linchpin” of its ruling that
North Carolina had violated the Act. But this consti-

 

19

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

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

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

A. Polarized Voting is a I’revalent American Voting
Pattern

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

20

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

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

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

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

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

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

 

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

 

21

vote. In New Jersey, Jackson received 86% of the black
vote, but only 4% of the white vote; in New York, it was
87% of the black vote, compared to only 6% of the
white vote. In none of the surveyed primaries did J ack-
son received as much as 10% of the white vote, or less
than 50% of the black vote.

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

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

The statistical “evidence” offered by appellees on “p0-
larized” voting therefore fails to come to grips with an
inescapable fact: white voter rejection of a black can—
didate can be based upon a host of factors that have
nothing at all to do with race.

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

 

22

voting often bear no relationship at all to the kind of
discrimination targeted by the VRA. The mere fact
that overwhelming majorities of blacks vote for a given
black candidate (such as Jesse Jackson) provides no
grounds whatsoever to question the attitudes of Whites
who overwhelmingly reject the same candidate. To hold
otherwise affronts both common sense and the equal pro-
tection clause. Yet the courts discredit the integrity of
the White vote every time they invoke “polarized voting”
to justify finding a violation of the VRA.

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

Moreover, even urban jurisdictions where black polit-
ical power is most vigorous—Chicago, Newark, Phila—
delphia, Atlanta, all of which have strong black mayors—
have been characterized by very high levels of racial
polarization in voting.3 This again undercuts the notion
that polarized voting prevents effective access to the
political system.

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

 

23

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

The Act’s guarantee of an equal opportunity for
minorities to participate in the political process, 42
U.S.C. Sec. 1973(1)), need not and cannot be construed
to require any compromise of the constitutional guaran-
tee of the freedom to vote as one pleases. More to the
point, the legality of a state’s election system cannot be
conditioned upon a shift of white citizens’ votes to black
candidates which will be sufficient to satisfy the expecta-
tions of three federal judges.

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

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

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

 

24

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

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

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

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

 

25

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

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

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

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

 

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

26

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

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

CONCLUSION

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

Respectfully submitted,

DANIEL J. POPEO

GEORGE C. SMITII *
WASHINGTON LEGAL FOUNDATION
1705 N Street, NW.
Washington, DC. 20036
(202) 857-0240

Attorneys for Amicus Curiae
Washington Legal Foundation

~ * Counsel of Record

‘. July 5, 1985

 

APPENDIX A

1984 Democratic presidential primary voting by race.

Table 4.

Whites

Blacks

 

 

White

Black
per-
centage
of sample

per-
centage

Glenn Hart Jackson Mondale of sample Glenn

Hart Jackson Mondale

Date

State

 

29%
32

1%

37 %
38

32%
25

56%
69
69
70

50% 47%
61

1%

40%
28
25

3/13

Alabama
Georgia

3/13

47
57
50
51

17

79

Illinois

36

87

4/3 23

New York

13.

43
43

82

18
22
16
20

77
76

16
26

4/10
5/1
5/5
5/8
5/8
5/8

Pennsylvania
Tennessee
Texas *

50
44
53
46
44
40

56
85

83
71

33
14
24
27

51

Indiana

35
41

13 73
13 69

83

Maryland

84
81

N 0. Carolina

Ohio

50

79

19

5/8

48

16
11

78

6/5

6/5
CBS/New York Times exit surveys.

California

56

86

Ol

New Jersey

Source:

* Sample of caucus participants