Motion for Leave to File and Brief of Senators and Representatives as Amici Curiae in Support of Appellees; Brief of Senators and Representatives as Amici Curiae in Support of Appellees; Supreme Court of the United States Hearing List

    , 

No. 83-1968 

IN THE 

OCTOBER TERM, 1985 

LACY H. THORNBURG, et al., 
Appellants, 

v. 

RALPH GINGLES, et at., 
Appellees. 

ON APPEAL FROM THE 
UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

MOTION FOR LEAVE TO FILE AND BRIEF OF 
SEN.(\ TORS DENNIS DeCONCINI, ROBERT J. DOLE, 

CHARLES E. GRASSLEY, EDWARD M. KENNEDY, 
CHARLES Me C. MATHIAS, JR., AND 

HOWARD M. METZENBAUM, 
AND REPRESENTATIVES DON EDWARDS, HAMILTON 

FISH, JR., PETER W. RODINO, JR., AND 
F. JAMES SENSENBRENNER 

AS AMICI CURIAE IN SUPPORT OF APPELLEES 

WALTER J. ROCKLER 

(Counsel of Record) 
MARK P. GERGEN 

BARBARA L. ATWELL 

ARNOLD & PORTER 

1200 New Hampshire Ave., N.W. 
W~ington, D.C. 20036 
( 202) 872-6789 

Attorneys .for Amici Curiae 

• 



------------------------------~~~------------------------------------------------···-~ 



No. 83-1968 

IN THE 

OCTOBER TERM, 1985 

LACY H. THORNBURG, et a/., 
Appe/Jants, 

v. 

RALPH GINGLES, et a/., 
Appe/Jees. 

ON APPEAL FROM THE 
UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF NORTH CAROUNA 

MOTION OF SENATORS DENNIS DeCONCINI, 
ROBERT J. DOLE, CHARLES E. GRASSLEY, 

EDWARD M. KENNEDY, CHARLES McC. MATHIAS, JR., 
AND HOWARD M. METZENBAUM, AND 

REPRESENTATIVES DON EDWARDS, HAMILTON 
FISH, JR., PETER W. RODINO, JR., AND 

F. JAMES SENSENBRENNER 
FOR LEAVE TO FILE AMICUS CURIAE BRIEF ON 

BEHALF OF APPELLEES 

Amici Curiae are members of the United States Congress 
who were principal co-sponsors and supporters of amended 
Section 2 of the Voting Rights Act. 42 U.S.C. § 1973 ( 1982 ). 
Pursuant to Supreme Court Rule 36.3, amici respectfully 
request leave. to file the accompanying amicus brief.* 

• Appellees have consented to amici's panicipation in this case. Appel­
lants, however, have denied consent. 



As members of the United States Senate and House of 
Representatives and the respective Judiciary Committees of the 
Senate and House, and as key co-sponsors of amended Section 
2, amici are vitally interested in ensuring that the Voting Rights 
Act is properly interpreted. The position taken by the Solicitor 
General and appellants in this case is inconsistent with the 
literal provisions of Section 2. Moreover, it discounts the 
importance of the Senate Report, the key source of legislative 
history in this case. We are concerned both with preserving the 
integrity of Congressional Committee Reports and ensuring 
that Section 2 of the Voting Rights Act is preserved as an 
effective mechanism to ensure that people of all races will be 
accorded an equal opportunity to participate in the political 
processes of this country and to elect representatives of their 
choice. 

The accompanying brief undertakes a detailed review of 
the language and legislative history of amended Section 2 of the 
Voting Rights Act, iss1.1es that the parties will not address in the 
same detail. Thus, amici believe that the perspective they bring 
to the issues in this case will materially aid the Court in 
reaching its decision. 

Members of the House of Representatives and Senate have 
participated as amici curiae in numerous cases before this Court 
involving issues affecting the legislative branch, both by motion, 
e.g., United States v. Helstoski, 442 U.S. 477 ( 1979), and 
consent, e.g., National Organization for Women v. Idaho, 455 
u.s. 918 ( 1982 ). 



For the foregoing reasons, amici respectfully request leave 
to file the accompanying amicus brief. 

Dated: August 30, 1985 

Respectfully submitted, 

WALTER J. ROCKLER 

(Counsel of Record) 
MARK P. GERGEN 

BARBARA L. ATWELL 

ARNOLD & PORTER 

1200 New Hampshire Ave., N.W. 
Washington, D.C. 20036 
Telephone: ( 202) 872-6789 

Attorneys for Amici Curiae 





No. 83-1968 

IN THE 

OCTOBER TERM, 1985 

LACY H. THORNBURG, et a/., 
Appellants. 

v. 

RALPH GINGLES, eta/., 
Appellees. 

ON APPEAL FROM THE 
UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF NORTH CAROUNA 

BRIEF OF SENATORS DENNIS DeCONCINI, ROBERT J. 
DOLE, CHARLES E. GRASSLEY, EDWARD M. KEN­
NEDY, CHARLES McC. MATHIAS, JR., AND HOWARD 
M. METZENBAUM, AND REPRESENTATIVES DON ED­
WARDS, HAMILTON FISH, JR., PETER W. RODINO, 
JR., AND F. JAMES SENSENBRENNER AS AMICI 

CURIAE IN SUPPORT OF APPELLEES 





TABLE OF CONTENTS 

STATEMENT OF INTEREST ........................................ 1 
SUMMARY OF ARGUMENT ....................................... 2 
ARGUMENT.................................................................... 5 

I. TO ASSUME COMPLIANCE WITH SEC­
TION 2 UPON EVIDENCE OF SOME ELEC­
TORAL SUCCESS BY MEMBERS OF A MI­
NORITY GROUP VIOLATES THE LITERAL 
REQUIREMENTS OF THAT PROVISION; 
EVIDENCE OF SOME ELECTORAL SUC­
CESS MUST BE VIEWED AS PART OF THE 
"TOTALITY OF CIRCUMSTANCES" TO BE 
CONSIDERED ..................................................... 5 

II. THE LEGISLATIVE HISTORY OF THE 1982 
AMENDMENTS AND THE PRE-BOLDEN 
CASE LAW CONCLUSIVELY DEMON­
STRATE THAT A VIOLATION OF SECTION 
2 MAY BE FOUND ALTHOUGH MEMBERS 
OF A MINORITY GROUP HAVE EX­
PERIENCED LIMITED ELECTORAL SUC-
CESS ......................................................... :............ 8 
A. The Legislative History: The Majority 

Statement in the Senate Report Specifi­
cally Provides that Some Minority Group 
Electoral Success Does Not Preclude a 
Section 2 Claim if Other Circumstances 
Evidence a Lack of Equal Access ................ 8 

B. The Majority Statement in the Senate Re­
port Is an Accurate Statement of the Intent 
of Congress with Regard to' the 1982 
Amendments................................................ 14 
l. The Majority Statement in the Sen­

ate Report Plainly Reflects the Intent 
and Effect of the Legislation .............. 15 

2. As a Matter of Law, the Majority 
Statement in the Senate Report Is 
Entitled to Great Respect ................... 20 

III. THE DISTRICT COURT APPROPRIATELY 
LOOKED TO THE TOTALITY OF CIRCUM­
STANCES INCLUDING THE EVIDENCE OF 
SOME BLACK ELECTORAL SUCCESS TO 
DETERMINE WHETHER BLACKS HAD 
EQUAL OPPORTUNITY TO PARTICIPATE 
IN THE ELECTORAL SYSTEM; THE 
COURT DID NOT REQUIRE PROPOR-
TIONAL REPRESENTATION.... ........... .. ......... 23 

CONCLUSION................................................................. 30 



ll 

TABLE OF AUTHORITIES 

Page 

CASES 

Beer v. United States, 374 F. Supp. 363 (D.D.C. 
1974), rev'd on other grounds, 425 U.S. 130 ( 1976) 13 

Chandlerv. Roudebush, 425 U.S. 840 ( 1976).............. 20,21 
City Council of Chicago v. Ketchum, 105 S. Ct. 2673 

( 1985)........................................................................ 14 
City of Mobile v. Bolden, 446 U.S. 55 ( 1980) .............. passim 
Garcia v. United States, __ U.S.__:_, 105 S. Ct. 

479(1984) .................................................................. 20 
Gingles v. Edmisten, 590 F. Supp. 345 (E.D.N.C. 

1984) .......................................................................... passim 
Graves v. Barnes, 343 F. Supp. 704 ( W.D. Tex. 

1972) .......................................................................... 12 
Graves v. Barnes, 378 F. Supp. 641 (W.D. Tex. 

1974) .......................................................................... 13 
Grove City College v. Bell, __ U.S._, 104 S. Ct. 

1211 ( 1984)............................................................... 22 
Kirksey v. Board of Supervisors, 554 F .2d 139 (5th 

Cir. ), cert. denied, 434 U.S. 968 ( 1977) ................... 13,23 
Maine v. Thiboutot, 448 U.S. 1 ( 1980), quoting TVA 

v. Hill, 437 U.S. 153 ( 1978)...................................... 7 
McCain v. Lybrand, No. 74-281 ( D.S.C. April 17, 

1980) .......................................................................... 12 
McMillan v. Escambia County, 748 F.2d 1037 (11th 

Cir. 1984) ................................................................... 20,24, 
25,26 

Monterey Coal v. Federal Mine Safety & Health 
Review Commission, 743 F.2d 589 (7th Cir. 1984) . 21 

National Association of Greeting Card Publishers v. 
United States Postal Service, 462 U.S. 810 ( 1983).. 21 

National Organization for Women v. Idaho, 455 U.S. 
918 ( 1982) ................................................................. 2 

North Haven Bd. of Education v. Bell, 456 U.S. 512 
(1982).... .................................................................... 22 

Sperling v. United States, 515 F.2d 465 (3d Cir. 
1975), cert. denied, 46: U.S. 919 ( 1976) ................. 21 

United States v. International Union of Automobile 
Workers, 352 U.S. 567 ( 1957).................................. 20 



lll 

Page 

United States v. Dallas County Comm'n, 739 F .2d 
1529 ( 11th Cir. 1984) ............................................... 20,25,26 

United States v. Helstoski, 442 U.S. 477 ( 1979).......... 2 

United States v. O'Brien, 391 U.S. 367 ( 1968) ............ 20 

United States v. Marengo County Comm'n, 731 F.2d 
1546 (lith Cir. ), cert. denied, __ U.S. __ , 105 
S. Ct. 375 ( 1984) ....................................................... passim 

Velasquez v. City of Abilene, 125 F.2d 1017 (5th Cir. 
1984) .......................................................................... 7,10,20 

Whitcomb v. Chavis, 403 U.S. 914 ( 1971 ) ................... 11 

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

Zimmer v. ·McKeithen, 485 F.2d 1297 (5th Cir. 
1973 ), aff'd sub nom. East Carroll Parish School 
Bd. v. Marshall, 424 U.S. 636 ( 1976 )....................... passim 

Zuber v. Allen, 396 U.S. 168 ( 1969) ............................ 20 

STATUTES 

Voting Rights Act Amendments of 1982, Pub. L. No. 
97-205 ..................................................................... ... passim 

42 u.s. § 1973 ······························································· 2 

MISCELLANEOUS 

Voting Rights Act: Hearings Before the Subcomm. on 
the Constitution of the Senate Comm. on the Judi-
ciary, Vol. II, 97th Cong., 2d Sess. ( 1982) ............... 15,16 

Voting Rights Act: Hearings Before the Subcomm. on 
the Constitution of the Senate Comm. on the Judi-
ciary, Vol. I, 97th Cong., 2d Sess. ( 1982) ................. II 

Report of the Senate Judiciary Committee on 
S. 1992, S. Rep. No. 417, 97th Cong., 2d Sess. 
( 1982) ........................................................................ passim 

Report of the House Committee on the Judiciary on 
H.R. 3112, H.R. Rep. No. 227, 97th Cong., lst 
Sess. ( 1981) ............................................................... 9 

128 Cong. Rec. S7139 (daily ed. June 18, 1982)......... 14 

128 Cong. Rec. S7091-92 (June 18, 1982 )................... 19 

128 Cong. Rec. S7095 (dailyed. June 18, 1982)......... 18 



IV 

Page 

128 Cong. Rec. S7095-96 (June 18, 1982) ......... ......... . 19 

128 Cong. Rec. S6995 (dailyed. June 17, 1982) ........ . 19 
~ 

128 Cong. Rec. S6991, S6993 (daily ed: ''June 17, 
1982) ·········································································· L9 

128 Cong. Rec. S6960-62, S6993 (daily ed. June 17, 
1982) ......................................................................... . 19 ' •l 

·~ \ 

128 Cong. Rec. S6941-44, S6967 (daily ed. June 17, 
1982) ·········································································· 19 

128 Cong. Rec. 6939-40 (daily ed. June 17, 1982 ) ..... . 19 

128 Cong. Rec. ~6930-34 (daily ed. June 17, 1982) .. . 19 

128 Cong. Rec. S6919-21 (dailyed. June 17, 1982) .. . 19 

128 Cong. Rec. S6781 (daily ed. June 15, 1982) ........ . 18 

128 Cong. Rec. S6780 (daily ed. June 15, 1982) ........ . 18 

128 Cong. Rec. S6646-48 (daily ed. June 10, 1982) .. . 19 

128 Cong. Rec. S6553 (daily ed. June 9, 1982) .......... . 17,18 

128 Cong. Rec. H3841 (daily ed. June 23, 1982) ....... . 19 

128 Cong. Rec. H3840-41 (daily ed. June 23, 1982) .. 17 



No. 83-1968 

IN THE 

OCTOBER TERM, 1985 

LACY H. THORNBURG, eta/., 
Appellants, 

v. 

RALPH GINGLES, et a/., 
Appellees. 

ON APPEAL FROM THE 
UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF NORTH CAROUNA 

BRIEF OF SENATORS DENNIS DeCONCINI, ROBERT J. 
DOLE, CHARLES E. GRASSLEY, EDWARD M. KEN­
NEDY, CHARLES McC. MATHIAS, JR., AND HOWARD 
M. METZENBAUM, AND REPRESENTATIVES DON ED­
WARDS, HAMILTON FISH, JR., PETER W. RODINO, 
JR., AND F. JAMES SENSENBRENNER AS AMICI 

CURIAE IN SUPPORT OF APPELLEES 

Senators Dennis DeConcini, Robert J. Dole, Charles E. 
Grassley, Edward M. Kennedy, Charles McC. Mathias, Jr., and 
Howard M. Metzenbaum, and Representatives Don Edwards, 
Hamilton Fish, Jr., Peter W. Rodino, Jr., and F. James 
Se.nsenbrenner hereby appear as amici curiae pursuant to the 
motion filed herewith. 

STATEMENT OF INTEREST 

This case presents an important issue of interpreting the 
Voting Rights Act Amendments of 1982, Pub. L. No. 97-205, as 



2 

they pertain to Section 2 of the Voting Rights Act. 42 U.S.C. 
§ 1973. As members of the United States House of Representa­
tives and Senate, amici are vitally interested in this case, which 
could determine whether Section 2 is to be preserved as an 
effective mechanism to ensure that people of all races will be 
accorded an equal opportunity to participate in the political 
processes of this country and in the election of representatives 
of their choice. This case also raises an important question of 
the weight to be given congressional committee reports by 
which the intent underlying a statute is expressed. 

Members of the House of Representatives and Senate have 
participated as amici curiae in numerous cases before this Court 
involving issues affecting the legislative branch, both by motion, 
e.g., United States v. Helstoski, 442 U.S. 477 ( 1979), and 
consent, e.g., National Organization for Women v. Idaho, 455 
u.s. 918 ( 1982). 

SUMMARY OF ARGUMENT 

As the authors and principal proponents of the 1982 
amendments to Section 2, our primary concern in this case is to 
ensure that Section 2 is interpreted and applied in a manner 
consistent with Congress' intent. The Solicitor General and the 
appellants contend that the district court's finding that the 
challenged multimember legislative districts violated Section 2 
of the Voting Rights Act "cannot be reconciled" with the 
evidence of some recent electoral success by black candidates in 
those districts. Brief for the United States as Amicus Curiae 24, 
28. 

The three-judge district court, using the "totality of circum­
stances" analysis made relevant by Section 2, found blacks 
were denied an equal opportunity to participate in the political 
process in the challenged districts on the basis of a wide variety 
of factors. It considered the evidence of electoral success at 
length in its opinion, and found such successes to be "too 
minimal in total numbers" and of "too rece.1t" vintage to 
support a finding that black candidates were not disadvantaged 



3 

because of their race. Gingles v. Edmisten, 590 F . Supp. 345, 
367 ( E.D.N.C. 1984 ). Appellants and the Solicitor General, on 
the other hand, ascribing definitive weight to a single factor, 
argue that "given the proven electoral success that black 
candidates have had under the multimember system," no 
violation of Section 2 can be established. Brief for the United 
States as Amicus Curiae 28. 

The Solicitor General and appellants seemingly ask this 
court to rule that evidence of recent, and limited, electoral 
success should be preclusive of a Section 2 claim, though 
evidence of other factors overwhelmingly may compel a finding 
that blacks are denied an equal opportunity to participate in the 
political process. This position is contrary to the express terms 
of Section 2, which requires a comprehensive and realistic 
~nalysis of voting rights claims, and it could raise an artificial 
barrier to legitimate claims of denial of voting rights which in 
some ways would pose as significant an impediment to the 
enforcement of Section 2 as the specific intent rule of Ci 

obile v. Bolden, 446 U.S. 55 ( 1980 ), rejected by Con~ress in. 
1982. --To assume that some electoral success by some members of 
a minority group, no matter how limited or incidental such 
success may be, conclusively evidences an equal opportunity for 
members of that group, confuses the occasional success of black 
candidates with the statutory guarantee of an equal opportunity 
for black citizens to participate in the political process and to 
elect candidates of their choice. Experience, as documented by 
the pre-Bolden case law, proves that the systematic denial of 
full and equal voting rights to blacks may be accompanied by 
the sporadic success of some blacks in primary or general 
elections. As the courts have uniformly recognized, the vice of 
the denial of equal voting rights to a minority group is not 
obviated by such token or incidental successes of its members. 

Most importantly, the position advocated by the Solicitor 
General and appellants is inconsistent with the literal language 
of Section 2, and was expressly rejected by Congress when it 
considered the 1982 amendments, as is made clear in the 



4 

Report of the Senate Judiciary Committee on S. 1992, S. Rep. 
No. 417, 97th Cong., 2d Sess. ( 1982) (hereinafter the "Senate 
Report") . This Report cannot be treated as tlie view of "one 
faction in the controversy," as argued in the amicus brief of the 
Solicitor General (Brief for the United States as Amicus Curiae 
8 n.12 ), in the face of clear evidence that the Report accurately 
expresses the intent of Congress generally, and importantly of 
the authors of the compromise legislation that was reported by 
the Senate Judiciary Committee and enacted, essentially un­
changed, into law. 

If this Court were to discount the importance of the views 
expressed in the Senate Report, it would have significance 
beyond this particular case. A majority of the Judiciary 
Committee sought to provide, in the Senate Report, a detailed 
statement of the purpose and effect of the 1982 amendments. 
That statement was relied upon by members of the Senate in 
approving the legislation, and by members of the House in 
accepting the Senate bill as consistent with the House position. 
This Court should not cut the 1982 amendments free from their 
legislative history, and adopt an interpretation of that legisla­
tion inconsistent with the view of the congressional majority. 
To do so would undermine firmly established principles of 
interpretation of Acts of Congress, and sow confusion in the 
lower courts that are so often called upon to determine the 
legislative intent of federal statutes. 

The Voting Rights Act Amendments of 1982 were in­
tended to reinstate fair and effective standards for enforcing the 
rights of minority citizens so as to provide full and equal 
participation in this nation's political and electoral processes. In 
1982, Congress had before it an extensive record showing that 
much had been accomplished towards this end since the Voting 
Rights Act was adopted in 1965, but that much more remained 
to be done. In construing and applying Section 2, the Court 
should be mindful of Congress' remedial goal to overcome the 
various impediments to political participation by blacks and 
other minority groups. 



5 

ARGUMENT 

I. TO ASSUME COMPliANCE WITH SECTION 2 
UPON EVIDENCE OF SOME ELECTORAL SUCCESS 
BY MEMBERS OF A MINORITY GROUP VIOLATES 
THE liTERAL REQUIREMENTS OF THAT PROVI­
SION; EVIDENCE OF SOME ELECTORAL SUCCESS 
MUST BE VIEWED AS PART OF THE "TOTAliTY 
OF CIRCUMSTANCES" TO BE CONSIDERED 

The evidence of some electoral success by blacks in the 
challenged districts in North Carolina is not dispositive of a 
Section 2 claim, as is evident from the plain language of the 
statute. 1 Section 2 requires that claims brought thereunder be 
analyzed on the basis of the "totality of circumstances" present 

1 We make no e.ffort herein to state the facts at issue in this case in a 
complete manner, though we do note the limited nature of black electoral 
success as presented in the district court's findings: 

House District No. 36 (Mecklenburg County) and Senate District No. 22 
(Mecklenburg and Cabarrus Counties) -Only two black candidates have 
won elections in this century. One black won a seat in the eight member 
House delegation in 1982 after this litigation was filed (running without white 
opposition in the Democratic primary), and one served in the four-member 
Senate delegation from 1975- 1980. This limited success is o.ffset by frequent 
electoral defeats. In House District 36, seven black candidates have tried and 
failed to win seats from 1965-1982, and in Senate District 22 black candidates 
failed in bids for seats in 1980 and 1982. Blacks comprise approximately 25 
percent of the population in these Districts. 590 F. Supp. at 357, 365. 

House District No. 39 (part of Forsyth County)-The first black to serve 
as one of the five-member delegation served from 1975-1978. He resigned in 
1978 and his appointed successor ran for reelection in 1978 but was defeated; 
a black candidate was also defeated in 1980. In 1982, after this litigation was 
filed, two blacks were elected to the House. This pattern of election, followed 
by defeats, mirrors elections for the Board of County Commissioners, in which 
the only black elected was defeated in her first reelection bid in 1980, and for 
elections to the Board of Education, in which the first black elected was 
defeated in his bids for reelection in 1978 and 1980. Blacks comprise 25.1 
percent of the County's population. 590 F. Supp. at 357, 366. 

House District No. 23 (Durham County).....,-Since 1973, one black has 
been elected to the three-member delegation. He faced no white opposition 

(footnote continues) 



6 

in the challenged district. The focus is on whether there is equal 
access to the process. The extent of past black electoral success 
is only one relevant circumstance. 

The controlling provision is Section 2( b), which states: 

"A violation of subsection (a) is established if, based 
on the totality of circumstances, it is shown that the 
political processes leading to nomination or election 
in the State or political subdivision are not equally 
open to participation by members of a class of 
citizens protected by subsection (a) of this section in 
that its members have less opportunity than other 
members of the electorate to participate in tb.e politi­
cal process and to elect representatives of their 
choice. The extent to which members of a protected 
class have been elected to office in the State or 
political subdivision is one circumstance which may 
be considered: Provided, 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." 

This express statutory provision clarifies that the "extent to 
which members of a protected class have been elected to office 
in the State or political subdivision is one circumstance which 
may be considered ... . " Obviously, other factors which com­
prise the "totality of circumstances" surrounding the political 
process must also be considered, as they were by the district 
court in finding a violation of Section 2 here. See Section III, 

(footnote continued) 

in the primary in 1980 or 1982 and no substantial opposition in the general 
election either of those years. Blacks constitute 36.3 percent of the population 
of the county. 590 F. Supp. at 357, 366, 370-71. 

House District No. 21 (Wake County)-The first time in this century a 
black candidate successfully ran for the six-member delegation was in 1980. 
That same candidate had been defeated in 1978. Blacks comprise 21.8 
percent of the population of the county. 590 F. Supp. at 357, 366, 371. 

House District No. 8 (Wilson, Edgecomb and Nash Counties)-No 
black was ever elected to serve from this four. member district although it is 
39.5 percent black in population. 590 F. Supp. at 357, 366, 371. 



7 

infra. Electoral success is a relevant criterion, but not the sole 
or dominant concern, as posited by the Solicitor General. 2 

As will be shown below, the primary reason Congress 
adopted Section 2( b), which originally was offered as a 
clarifying amendment by Senator Dole, was to ensure that the 
focus of the Section 2 "results" standard would be on whether 
there was equal opportunity to participate in the electoral 
process. 

The statutory language necessarily contemplates that a 
Section 2 violation may be proven despite some minority 
candidate electoral success. The focus on the "extent" of 
minority group electoral success contemplates gradations of 
success-from token or incidental victories to electoral domina­
tion-and makes clear that a violation of Section 2 may be 
proven in cases where some members of the group have been 
elected to office, but the group nevertheless has been denied 
a full-scale equal opportunity to participate in the political 
process.3 

Because Section 2 is plain on its face, it should not be 
necessary to look further to the legislative history. Maine v. 
Thiboutot, 448 U.S. I, 6 n.4 ( 1980), quoting TVA v. Hill, 437 

2 The Solicitor General seems to suggest that black electoral success in 
rough proportion to the black proportion of the population should be 
preclusive of a Section 2 claim. Brief for the United States as Amicus Curiae 
24-25. At most, this argument appears relevant only to House District No. 23 
(Durham County) , and, in any event, is plainly inconsistent with Congress' 
clearly stated intent that Section 2 claims should not depend upon the race of 
elected officials. Section 2 seeks to deflect excessive concern with the racial or 
ethnic identity of individual officeholders and jnstead, to focus attention 
where it properly belongs: on the existence of an equal opportunity for 
members of the minonty group to participate in the political process and to. 
elect representatives of their choice. 

3 Consistent with this clear statutory mandate, and the legislative history 
discussed below, the lower courts which have considered this issue all have 
expressly rejected the position espoused by the Solicitor General and appel­
lants. United States v. Marengo County Comm 'n, 731 F.2d 1546, 1571-72 
(lith Cir.), cert. denied, __ u.s._, 105 S. Ct. 375 ( 1984) ("It is 
equally clear that the election of one or a small number of minority elected 
officials will not compel a finding of no dilution."); Velasquez v. City of 
Abilene, 125 F.2d 1017, 1022 (5th Cir. 1984). 



8 

U.S. 153, 184 n.29 ( 1978). Nevertheless, we will examine that 
history because it confirms, in the most unequivocal terms, the 
intent of Congress that the extent of minority group electoral 
success be analyzed as a part of the totality of circumstances 
from which to measure the openness of the challenged political 
system to minority group participation. Further, that history 
provides an important indication of the manner in which such 
analysis should be undertaken, and supports the analysis and 
conclusions of the court below. 

II. THE LEGISLATIVE HISTORY OF THE 1982 
AMENDMENTS AND THE PRE-BOLDEN CASE LAW 
CONCLUSIVELY DEMONSTRATE THAT A VIOLA­
TION OF SECTION 2 MAY BE FOUND ALTHOUGH 
MEMBERS OF A MINORITY GROUP HAVE EX­
PERIENCED UMITED ELECTORAL SUCCESS 

A. The Legislative History: The Majority Statement in 
the Senate Report Specifically Provides that Some 
Minority Group Electoral Success Does Not Pre­
clude a Section 2 Claim if Other Circumstances 
Evidence a Lack of Equal Access 

The legislative history of the 1982 amendments shows very 
clearly that Congress did not intend that limited electoral 
success by a minority would foreclose a Section 2 claim. This 
intent is most plainly stated in the Senate Report, but a similar 
intent also is evident from the House deliberations, the individ­
ual views of members of the Senate Judiciary Committee 
appended to the Senate Report, and the floor debates in the 
Senate. 

The 1982 amendments originated in the House, which 
initially determined that the Bolden intent test was unworkable, 
and that it was necessary to evaluate voting rights claims 



9 

brought under Section 2 on the basis of " [a] n aggregate of 
objective factors." 4 Report of the House Committee on the 
Judiciary on H.R. 3112, H.R. Rep. No. 227, 97th Cong., 1st 
Sess. 30 ( 1981) (hereinafter the "House Report"). As would 
the Senate, the House rejected the position that any single 
factor should be determinative of a Section 2 claim. The House 
Report noted that " [a] 11 of these [described] factors need not 
be proved to establish a Section 2 violation." !d. at 30. Thus, 
while the House bill did not by its terms require the consid­
eration of the "totality of circumstances," that plainly was the 
intent of the House. 

The Senate refined the House bill, and made explicit the 
intent that Section 2 claims be addressed on the basis of the 
"totality of circumstances." This refinement came about be­
cause of a compromise authored by Senator Dole and others, 
the import of which will be addressed in detail below. Of 
immediate significance, though, is the fact that the Senate 
Report explaining this compromise expressly dealt with the 
issue of the significance of minority group electoral success to . 
Section 2 claims. Indeed, the intent of the Committee with 
regard to the handling of this factor was expressed more than 
once. 

The Senate Report includes, as one "typical factor" to 
consider in determining whether a violation has been estab­
lished under Section 2, "the extent to which members of the 
minority group have been elected to public office in the 
jurisdiction." Senate Report at 29. Additional important 
commentary with regard to this factor is then provided: 

"The fact that no members of a minority group have 
been elected to office over an extended period of time 

4 Relevant factors, drawn from the Court's decision in White v. Regester, 
412 U.S. 755 ( 1973), and its progeny included "a history of discrimination 
affecting the right to vote, racially polarity [sic] voting which impedes the 
election opportunities of minority group members, discriminatory elements of 
the electoral system such as at-large elections, a majority vote requirement, a 
prohibition on single-shot voting, and numbered posts which enhance the 
opportunity for discrimination, and discriminatory slating or the failure of 
minorities to win party nomination." House Report 30. 



10 

is probative. However, the election of a few minority 
candidates does not ' necessarily foreclose the possi­
bility of dilution of the black vote, ' in violation of this 
section. Zimmer 485 F.2d at 1307. If it did, the 
possibility exists that the majority .citizens might 
evade the section e.g., by manipulating the election of 
a 'safe' minority candidate. 'Were we to hold that a 
minority candidate's success at the polls is conclusive 
proof of a minority group's access to the political 
process, we would merely be inviting attempts to 
circumvent the Constitution. . . . Instead we shall 
continue to require an independent consideration of 
the record.' Ibid." Senate Report at 2 9 n.115. ( Ref­
erences are to Zimmer v. McKeithen, 485 F.2d 1297 
(5th Cir. 1973 ), aff'd sub nom. East Carroll Parish 
School Bd. v. Marshall~ 424 U.S. 636 ( 1976 ) ~ ) 

No clearer statement of the intent of the Committee with regard 
to this issue seems possible. ·see Velasquez v. City of Abilene, 
725 F.2d 1017, 1022 (5th Cir. 1984) ("In the Senate Report 
. . . it was specifically noted that the mere election of a few 

minority candidates was not sufficient to bar a finding of voting 
dilution under the results test.").s 

Further, this analysis, and its reliance on Zimmer v. 
McKeithen, 485 F.2d at 1307, is consistent with the express 
view of the Committee that" [ t] he 'results' standard is meant to 
restore the pre-Mobile legal standards which governed cases 

s The Solicitor General suggests that this statement indicates that minor­
ity group electoral _success will not defeat a Section 2 claim only if it can be 
shown that such success was the result of the majority "engineering the 
election of a 'safe' minority candidate." Brief for the United States as Amicus 
Curiae 24 n.49. Amici, who were integrally involved in writing the Senate 
Report, view this statement as providing an example which illustrates why 
some success should not be dispositive, not a legal rule defining the only 
circumstance where it is not. Of course, there are numerous other reasons why 
some electoral success might not evidence an equality of opPortUnity to 
participate in the electoral process. For example, as in the instant case, the 
ability to single-shot vote in multimember districts may produce some black 
officeholders, but at the expense of denying blacks the opportunity to vote for 
a full slate of candidates. See 590 F. Supp. at 369. 



II 

challenging election systems or practices as an illegal dilution of 
the minority vote. Specifically, subsection (b) embodies the 
test laid down by the Supreme Court in White [v. Regester, 412 
U.S. 755 ( 1973)] ." Senate Report at 27.6 This reliance on pre­
Do/den case law is important, for it was firmly established under 
that case law that a voting rights violation could be established 
even though members of the plaintiff minority group had 
experienced some electoral success within the challenged sys­
tem. 

The Committee was acutely aware of this precedent. 7 

Indeed, in the case set by Congress as the polestar of Section 2 
analysis- White v. Regester-a voting rights denial was found 
by this Court despite limited black and Hispanic electoral 
success in the challenged districts in Dallas and Bexar Counties 
in Texas. Senate Report at 22.a 

e There can be no doubt that this was the view of a Congressional 
majority as well. Thus, in his additional views, Senator Dole remarked that 
"the new subsection [ 2( b) 1 codifies the legal standard articulated in White v. 
Regester, a standard which was first applied by the Supreme Coun in 
Whitcomb v. Chavis, and which was subsequently applied in some 23 Federal 
Courts of Appeals decisions." Senate Repon at 194. Senator Grassley, in his 
supplemental views, similarly remarked that " the new language of Section 2 is 
the test utilized by the Supreme Coun in White." Id. at 197. 

7 The Senate Repon states: 

"What has been the judicial track record under the 'results test'? 
That record received intensive scrutiny during the Committee 
hearings. The Committee reviewed not only the Supreme Coun 
decisions in Whitecomb [sic 1 -and White, but also some 23 
reponed vote dilution cases in which federal courts of appeals, 
prior to 1978, followed White. " Senate Repon at 32. 

A list and analysis of these 23 cases appears in Voting Rights Act: 
Hearings Before the Subcomm. on the Constitution of the Senate Comm. of the 
Judiciary, Vol. I, 97th Con g., 2d Sess. 1216-26 ( 1982) (hereinafter "I Senate 
Hearings") (appendix to prepared statement of Frank R. Parker, director, 
Voting Rights Project, Lawyers' Committee for Civil Rights Under the Law). 

a The Senate Repon cites the portion of this Coun's opinion in White v. 
Regester wherein it was observed that " [ s 1 ince Reconstruction, only two 
black candidates from Dallas County had been elected to the Texas House of 
Representatives, and these two were the only blacks ever slated by the Dallas 
Committee for Responsible Government, white-dominated slating group." 

(footnote continues) 



12 

The Committee also expressly relied upon the opinion of 
the Fifth Circuit Court of Appeals in Zimmer v. McKeithen, 
which it described as " [ t] he seminal court of appeals 
decision ... subsequendy relied upon in the vast majority of 
nearly two dozen-reported dilution cases." Senate Report at 23. 
In Zimmer, the Circuit Court found inconclusive the fact that 
three black candidates had won seats in the challenged at-large 
district since the institution of the suit. The Court reasoned that 
while the appellee urged that "the attendant success of three 
black candidates, dictated a finding that the at-large scheme did 
not in fact dilute the black vote .... [W]e cannot endorse the 
view that the success of black candidates at the polls necessarily 
forecloses the possibility of dilution of the black vote.'' 485 F.2d 
at 1307. 

Similarly, the Committee considered with approval a re­
cent case involving Edgefield County, South Carolina, where 
prior to Bolden a voting rights violation had been found, despite 
limited black electoral success, because " [ b ]lack participation 
in Edgefield County has been merely tokenism and even this 
has been on a very small scale." McCain v. Lybrand, No. 74-

(footnote continued) 

412 U.S. at 766-67. The decision of the district court indicates that the first of 
these candidates ran in 1966, and that they were selected by the white­
dominated Dallas Committee for Responsible Government without the 
participation of the black community. Graves v. Barnes, 343 F. Supp. 704, 
726 (W.O. Tex. 1972), aff'd in part and rev'd in part sub nom. White v. 
Regester, 412 U.S. 755 ( 1973 ). 

A similar point was made with respect to Hispanic success in Bexar 
County, where " [ o] nly five Mexican-Americans since 1880 have served in the 
Texas Legislature from Bexar County. Of these, only two were from the 
barrio area." 412 ·u.s. at 768-69. The district court indicated that four of 
these five were elected after 1960. Graves v. Barnes, 343 F. Supp. at 732. 

The findings in White v. Regester seem unremarkable until it is realized 
that in the instant case the same or a lesser showing of black electoral success 
in all of the districts here at issue (except House District No. 23 ), is being 
relied upon as conclusive evidence that no voting rights violation has 
occurred. 



. 13 

281 , slip op. at 18 (D.S.C. April 17, 1980) , quoted at Senate 
Report 26.9 

There is absolutely no indication in the legislative history 
that any member of either House of Congress thought that 
evidence of minority group electoral success should be pre-. 
elusive of a Section 2 claim. The Solicitor General and 
appellants recite at some length numerous statements to the 
effect that Section 2 was not meant to require proportional 
representation. This point is made en the face of the statute, 
and there is no question that Section 2 does not require that 
minority group representation be, at a minimum, equal to the 
group's percentage of the population. .However, the finding of 
a violation of Section 2 in the face of some minerity greup 

1 success does not depend upon a rule re uiring 
groportional representatiOn. at er, as the reasoning o!:J.!le 
court belQ~ illustrates, the finding of a violation depends upoJl 
the assessment of the "totahty of circumstances" to determine 
~ether members of the minority group have been denied an 
equal opportunity to participate in the political process and to ... 

9 In addition, there are other pre-Bolden decisions of similar impon not 
specifically addressed in the Senate Repon or in the floor debates. So, in one 
of the 23 appellate decisions studied by the Committee, the Fifth Circuit 
Court, rejecting a reapponionment plan ordered by the district coun because 
it left the chances for black success unlikely, noted its continuing adherence to 
the Zimmer rule: "we add the caveat that the election of black candidates 
does not automatically mean that black voting strength is not minimized or 
canceled out." Kirksey v. Board of Supervisors, 554 F.2d 139, 149 n.21 (5th 
Cir. ), cert. denied, 434 U.S. 968 ( 1977 ). 

This rule of common sense was respected by the district couns. For 
example, in Graves v. Barnes, 378 F. Supp. 641, 659-61 (W.D. Tex. 1974), 
the coun concluded that the recent election of Hispanics to the Texas House 
of Representatives and to the school board did not frustrate a voting rights 
claim. 

Similarly, a district coun refused in Beer v. United States, 374 F. Supp. 
363 (D.D.C. 1974), rev'd on other grounds, 425 U.S. 130 ( 1976), to deem the 
city of New Orleans to be entitled to pre-clearance under Section 5 despite a 
showing that four blacks recently had won elective office in the municipality. 
Although the Section 5 retrogression standard differs from the Section 2 
standard, Beer is relevant to the case at hand in that the Coun recognized that 
minority candidate success can be attributable to factors other than equal 
access to the electoral process by minority group members. 



14 

elect representatives of their choice. The disproportionality of 
n,Ynority group representation is, at most, one factor in the 
analysis. 

B. The Majority Statement in the Senate Report Is an 
Accurate Statement of the Intent of Congress with 
Regard to the 1982 Amendments 

The Solicitor General appears to believe that Congress 
intended to adopt in 1982, the rule rejected in Zimmer v. 
McKeithen. drawing from certain statements by amicus Senator 
Dole and others that Section 2 was not intended to require 
proportional representation, an inference that a Section 2 claim 
is foreclosed wherever limited electoral success is shown. See 
Brief for the United States as Amicus Curiae 11 - 14. 10 

In making this argument, the Solicitor General also argues, 
as he did in another recent appeal to this Court regarding a 
Section 2 claim, City Council of Chicago v. Ketchum. 105 S. Ct. 
2673 ( 1985), that the Senate Report is not determinative of the 
intent of Congress, and attaches greater significance to the 
individual views of amici Senators Dole and Grassley, and 
Senator Hatch. 11 Brief for the United States as Amicus Curiae, 

10 The Solicitor General also cites the Report of the Subcommittee on the 
Constitution to the Senate Committee on the Judiciary on S. 1992, 97th Cong., 
2d Sess. ( 1982) ("Subcommittee Report"). The Subcommittee Report does 
not reflect, nor does it purport to reflect, the views of the Congressional 
majority who favored overturning the Bolden intent test and reinstating a 
results test. /d. at 20-52. At the time the Subcommittee Report was written, a 
3-2 majority of the Senate Subcommittee supported existing law, a position 
squarely rejected by the full Committee and by the Senate as a whole. The 
Chairman of the Subcommittee-Senator Orrin Hatch-opposed the Dole 
compromise and voted for the bill ultimately enacted only with great 
reluctance, continuing to state until the final vote on the bill his view "that 
these amendments promise to effect a destructive transformation in the Voting 
Rights Act . . . . " 128 Cong. Rec. S7139 (daily ed. June 18, 1982). Of the four 
other members of the Subcommittee: Senator Strom Thurmond opposed the 
Dole compromise; Senator Charles Grassley supported the compromise, and, 
as noted below, expressly acceded to the majority view of the Senate Report; 
and Senators Dennis DeConcini and Patrick Leahy objected to the con­
clusions of the Subcommittee Report. 

11 As noted in the preceding footnote, while Senator Hatch did ultimately 
vote for the bill, he opposed the Dole compromise in Committee and voiced 
opposition to it on the floor of the Senate. 



15 

13 n.27. These efforts are misguided on both factual and legal 
grounds. 

1. The Majority Statement in the Senate Report 
Plainly Reflects the Intent and Effect of the 
Legislation 

To understand the significance of the majority view stated 
in the Senate Report, and of the individual views of amici 
Senators Q_ole and Grassley, it is necessary to understand the 
nature and the genesis of what is aptly termed the Dole 
compromise. The purpose of the compromise was to clarify 
what standard should be used under the results test to ensure 
that the amended Section 2 would not be interpreted by courts 
to require proportional representation. The bill originally 
adopted by the House-H.R. 3112-attempted to accomplish 
this with a disclaimer that " [ t] he fact that members of a 
minority group have not been elected in numbers equal to the 
group's proportion of the population shall not, in and of itself, 
constitute a violation of this section." In addition, the stated 
purpose of the House bill was to reinstate the standards of pre­
Eo/den case law, which was understood by the House not to 
require proportional representation. House Report at 29-30. 

The House bill attracted immediate support in the Senate. 
Senators Mathias and Kennedy introduced the House bill as 
S. 1992, and enlisted the support of approximately two-thirds of 
the members of the Senate as co-sponsors. 12 Still, certain 
members of the Senate, and, in particular Senator Dole, had 
lingering doubts as to whether the language of the House bill 
was sufficient to foreclose the interpretation of the Voting 
Rights Act as requiring proportional representation. To arne-

12 Initially S. 1992 had 61 co-sponsors, and by the time the Senate 
Judiciary Committee passed upon the Dole compromise, this number had 
grown to 66. Thus, as Senator Dole himself recognized in Committee 
deliberations, "without any change the House bill would have passed." 
Executive Session of the Senate Judiciary Committee, May 4, 1982, reponed 
at Voting Rights Act: Hearings before the Subcomm. on the Constitution of the 
Senate Comm. on the Judiciary, Vol. II, 97th Cong., 2d Sess. 57 ( 1982) 
( hereinafter " II Senate Hearings"). 



16 

liorate this concern, Senator Dole-in conjunction with Sena­
tors Grassley, Kennedy and Mathias, among others 13_ 

proposed that Section 2( b) be added to pick up the standard 
enunciated by this Court in White v. Regester. In addition, the 
disclaimer included in the House bill was strengthened to state 
expressly that "nothing in this section establishes a right to have 
members of a protected class elected in numbers equal to their 
proportion of the population." 

As Senator Dole himself was careful to emphasize, the 
compromise was consistent with the Section 2 amendments 
passed by the House. 14 As Sepator Joseph Biden explained in 
the Committee debate over the Dole compromise, "What it 
does [is] , it clarifies what everyone intended to be the situation 
from the outset." Executive Session of the Senate Judiciary 
Committee, May 4, 1982, reported at II Senate Hearings 68. In 
introducing S. 1992 on the floor, Senator Mathias also termed 
the Committee actions on Section 2 "clarifying amendment [ s]" 
which "are consistent with the basic thrust of S. 1992 as 
introduced and are helpful . in clarifying the basic meaning of 
the proposed amendment." 128 Cong. Rec. S6942, S6944 
(daily ed. June 17, 1982 ). 1s 

13 Senator Dole explained that he "along with [amici] Senators DeCon­
cini, Grassley, Kennedy, and Metzenbaum and Senator Mathias . . . had 
worked out a compromise on [Section 2] ." !d. at 58. 

14 Thus, Senator Dole explained the proposed compromise as follows: 

"[T]he compromise retains the results standards of the 
Mathias/Kennedy bill. However, we also feel that the legislation 
should be strengthened with additional language delineating 
what legal standard should apply under the results test and 
clarifying that it is not a mandate for proportional representation. 
Thus, our compromise adds a new subsection to section 2, which 
codified language from the 1973 Supreme Coun decision of 
White v. Regester." Executive Session of the Senate Judiciary 
Committee, May 4, 1982, reponed at II Senate Hearings, 60. 

See also United States v. Marengo County Comm'n, }31 F. 2d 1546, 1565 n.30 
(lith Cir. }, cert. denied, __ U.S. __ , 105 S. Ct. 375 ( 1984 ). 

15 A similar understanding of the Senate bill was expressed on the floor 
of the House by Representative Don Edwards, Chairman of the Subcom­
mittee on Civil and Constitutional Right'" of the House Committee on the 
Judiciary: 

(footnote continues) 



17 

The authors of the compromise-in particular amici Sena­
tors Dole and Grassley- did not perceive it as inconsistent with 
the majority view of the proposed legislation. Indeed, in 
additional comments to the Senate Report, both amici Senators 
Dole and -Grassley clearly stated that they thought the majority 
statement to be accurate. Thus, Senator Dole prefaced his 
additional views with the comment that " [ t] he Committee 
Report is an accurate statement of the intent of S. 1992, as 
reported by the Committee." 16 Senate Report at 193. And 
Senator Grassley prefaced his views with the cautionary remark 
that "I express my views not to take issue with the body of the 
Report." Senate Report at 196. So that there could be no doubt 
as to his position, he later added that "I concur with the 
interpretation of this action in the Committee Report." Senate 
Report at 199. Moreover, the individual views expressed by 
both these Senators were in complete accord with the majority 
statement. 17 

(footnote continued) 

" Basically, the amendments to H.R. 3112 would . . . clarify the 
basic intent of the section 2 amendment adopted previously by 
the House. 

"These members [the sponsors of the Senate compromise] were 
able to maintain the basic integrity and intent of the House­
passed bill while at the same time finding language which more 
effectively addresses the concern that the results test would lead 
to proportional representation in every jurisdiction throughout 
the country and which delineates more specifically the legal 
standard to be used under section 2." 128 Cong. Rec. H3840-
384l (daily ed. June 23, 1982). 

16 As Senator Dole stated in his additional views, his primary purpose in 
offering the compromise was to allay fears about proportional representation 
and thereby secure the overwhelming bipartisan support he thought the bill 
deserved. For this reason, his comments primarily were concerned with 
stressing the intent of the Committee that the results test and the standard of 
White v. Regester should not be construed to require proportional representa­
tion. Senate Report at 193-94. This in no way suggests that he disagreed with 
the views expressed in the majority report, for that report also went to great 
pains to explain that neither the results test nor the standard of White v. 
Regester implied a guarantee of proportional representation. Senate Report 
at 30-31. A disclaimer to the same effect appears, of course, on the face of the 
statute. 

11 Senator Dole objected to efforts by opponents to redefine the intent of 
the 1982 amendments on the floor of the Senate. See 128 Cong. Rec. S6553 
(daily ed. June 9, 1982 ). 



18 

Both proponents and opponents of S. 1992 recognized in 
the floor debates the significance of the majority statement in 
the Committee Report as an explanation of the bill's purpose. 
So, early on in the debates Senator Kennedy noted that: 

"Those provisions, and the interpretation of those 
provisions, are spelled out as clearly and, I think, as 
well as any committee report that I have seen in a 
long time in this body. 

"I have spent a good deal of time personally on this 
report, and I think it is a superb commentary on 
exactly what this legislation is about. 

"In short, what this legislative report points out is 
who won and who lost on this issue. There should be 
no confusion for future generations as to what the 
intention of the language was for those who carried 
the day." 128 Cong. Rec. S6553 (daily ed. June 9, 
1982).18 

18 Senator Kennedy reemphasized this point a week later: 

"If there is any question about the meaning of the language, we 
urge the judges to read the report for its meaning or to listen to 
those who were the principal sponsors of the proposal, not to 
Senators who fought against the proposal and who have an 
entirely different concept of what a Voting Rights Act should be." 

128 Cong. Rec. S6780 (daily ed. June 15, 1982) . 

An admonition which Senator Dole heartily echoed: 

"I join the Senator from Massachusetts in the hope that when the 
judges look at the legislative history, they will look at those who 
supported vigorously and enthusiastically the so-called com­
promise." 

128 Cong. Rec. S6781 (daily ed. June 15, 1982). 

Senator Kennedy later remarked to the same effect: 

" Fortunately, I will not have to be exhaustive because the Senate 
Judiciary Committee Report, presented by Senator Mathias, was 
an excellent exposition of the intended meaning and operation of 
the bill." 

128 Cong. Rec. S7095 (daily ed. June 18, 1982). 



19 

Thus, the proponents of the legislation, including Senators 
Dole, 19 Grassley,2o DeConcini,21 Mathias,22 and Kennedy,23 
repeatedly pointed their colleagues to the majority statement of 
the Senate Report for an explanation of the legislation. Con­
versely, opponents of the compromise,24 or proponents of 
particular amendments,2s looked to the majority statement of 
the Senate Report as a basis for their individual criticisms of the 
bill. At no point in the debates did any Senator claim that the 
majority statement of the Senate Report was inaccurate, or that 
it represented the peculiar views of "one faction in the con­
troversy." 

Respect for the majority statement of the Senate Report 
carried to the floor of the House during the abbreviated debate 
on the Senate bill. Thus, amicus Representative F. James 
Sensenbrenner explained to his colleagues: 

"First, addressing the amendment to section 2, which 
incorporates the 'results' test in place of the 'intent' 
test set out in the plurality opinion in Mobile against 
Bolden, ther.e is an extensive discussion of how this 
test is to be applied in the Senate committee report." 
128 Cong. Rec. H3841 (daily ed. June 23, 1982 ). 

Again, there is no suggestion by any member of the House that 
the majority statement in the Senate Report was less than an 
accurate ~tatement of the intent of Congress with regard to the 
bill. 

19 128 Cong. Rec. S6960-62, S6993 (daily ed. June 17, 1982) . 
2o 128 Cong. Rec. S6646-48 (daily ed. June 10, 1982 ). 
21 128 Cong. Rec. S6930-34 (daily ed. June 17, 1982) . 
22 128 Cong. Rec. S6941-44, S6967 (daily ed. June 17, 1982). 
23 128 Cong. Rec. S6995 (daily ed. June 17, 1982); S7095-96 (June 18, 

1982). 
24 128 Cong. Rec. S6919-21, S6939-40 (daily ed. June 17, 1982); S7091-

92 (June 18, 1982 ). 
25 128 Cong. Rec. S6991 , S6993 (daily ed. June 17, 1982 ). The 

amendment offered by Senator Stevens is panicularly notewonhy-it con­
cerned the application of the standards of Section 2( b) in pre-clearance 
cases-because he largely sought to justify it on the basis of a consistent 
statement in the Senate Repon. 



20 

2. As a Matter of Law, the Majority Statement in 
the Senate Report Is Entitled to Great Respect 

Under fundamental tenets of statutory construction, Com­
mittee Reports are accorded the greatest weight as the views of 
the Committee and of Congress as a whole. 

In the preceding term, this Court reaffirmed the long­
established principle that committee reports are the author­
itative guide to congressional intent:26 

"In surveying legislative history we have repeatedly 
stated that the authoritative source for finding the 
legislature's intent lies in the Committee reports on 
the bill, which ' represent [ ] the considered and 
collective understanding of those Congressmen in­
volved in drafting and studying proposed legislation.' 
Zuber v. Allen, 396 U.S. 168, 186 ( 1969)." 

Garcia v. United States, __ U.S._, 105 S. Ct. 479, 483 
( 1984 ); accord Chandler v. Roudebush, 425 U.S. 840, 859 n.36 
( 1976); Zuber v. Allen, 396 U.S. 168, 186 ( 1969); United 
States v. O'Brien, 391 U.S. 367, 385 ( 1968); United States v. 
International Union of Automobile Workers, 352 U.S. 567, 585 
( 1957). The Garcia Court also reiterated the principle that 
committee reports provide "more authoritative" evidence of 
congressional purpose than statements by individual legislators. 
Garcia, 105 S. Ct. at 483; United States v. o•Brien, 391 U.S. at 
385; cf. United States v. Automobile Workers, 352 U.S. at 585. 

In light of these well-established principles, the effort to 
undermine the value of the Committee Report as a guide to 
legislative intent by citation to statements made during floor 
debates is misguided. Committee reports are "more author­
itative" than statements by individual legislators, regardless of 

26 Consistent with this longstanding principle, the Senate Report has 
been the authoritative source of legislative history relied on by courts 
interpreting the 1982 Voting Rights Act Amendments. See, e.g., McMillan v. 
Escambia County, 748 F.2d 1037 (lith Cir. 1984 ); United States v. Dallas 
County Comm'n, 739 F .2d 1529 (lith Cir. 1984 ); United States v. Marengo 
County Comm'n, 731 F.2d 1546 (lith Cir. ), cert. denied,_ U.S. _ , 105 S. 
Ct. 375 ( 1984 ); Velasquez v. City of Abilene, 725 F.2d 1017 (5th Cir. 1984 ). 



21 

the fact that the individual legislator is a sponsor or floor 
manager of the bill. See National Association of Greeting Card 
Publishers v. United States Postal Service, 462 U.S. 810, 832-33 
n.28 ( 1983 ); Chandler v. Roudebush, 425 U.S. at 859 n.36; 
Monterey Coal v. Federal Mine Safety & Health Review Com" 
mission, 743 F.2d 589, 596-98 . (7th Cir. 1984 ); Sperling v. 
United States, 515 F .2d 465, 480 (3d Cir. 1975 ), cert. denied, 
462 u.s. 919 ( 1976).27 

The basis for this rule is quite simple, for to give con­
trolling effect to any legislator's remarks in contradiction of a 
committee report "would be to run too great a risk of per­
mitting one member to override the intent of Congress. . . . " 
Monterey Coal v. Fed. Mine Safety & Health Review, 743 F.2d 
at 598. The rule also reflects the traditions and practices of 
both Houses of Congress, in which members customarily rely 
on the report of the committee of jurisdiction to provide an 
authoritative explanation of the purpose and intent of legisla­
tion before any floor consideration begins. For example, the 
Senate Rules forbid the consideration of "any matter or 
measure reported by any standing committee . . . unless the 
report of that committee upon that matter or measure has been 
available to members for at least three calendar days . . . prior 
to the consideration . ... " Rule XVII, para. 5, Standing Rules 
of the Senate. In this way, each member has the opportunity to 
examine not only the text of proposed legislation, but also the 
explanation and justification for it, well in advance of any vote 
on the bill. By contrast, the vast majority of members may be 
completely unaware of the content of a statement made during 

27 In National Association of Greeting Card Publishers, the Court ruled 
that a statement by the floor managers of a bill, appended to the conference 
committee report, lacked "the status of a conference report, or even a report 
of a single House available to both Houses." 462 U.S. at 832 n.28. The Court 
in Chandler v. Roudebush held a committee report to be "more probative of 
congressional intent" than a statement by Senator Williams, the sponsor of 
the legislation. 425 U.S. at 859 n.36. In Monterey Coal, the court noted that 
the sponsor's statements "are the only mention in the legislative history of the 
specific issue before us." Monterey Coal v. Fed. Mine Safety & Health Review, 
743 F.2d at 59~. Nevertheless, because the sponsor's position was not "clearly 
supported by the conference committee report," the court declined to give the 
sponsor's remarks controlling weight. 743 F.2d at 598. 



22 

floor debates. It is impossible to determine from the official 
record of congressional proceedings whether a given member, 
or a majority or any particular number of members, was 
present when a certain statement was made. It is even 
customary for statements to be delivered orally only in part, 
with the balance printed in the Congressional Record "as if 
read." Given these facts, well known to amici from their 
decades of experience in both Houses, there is little basis for 
concluding that any given statement made in floor debate 
accurately states the intent of any member other than the one 
who made it.2B 

Furthermore, the "compromise character" of the 1982 
amendments does not detract from the validity of the majority 
views. Here the proponents of the compromise wording 
expressly agreed with the majority views and viewed the 

28 The cases cited by the Solicitor General in support of the effort to 
amplifY the statements of individual senators and disparage the significance of 
the Senate Report, are inapposite. 

In North Haven Bd. of Education v. Bell, 456 U.S. 512 ( 1982 ), the Court 
noted that "the statements of one legislator made during debate may not be 
controlling," but indicated that statements made by Senator Bayh, a sponsor 
of the legislation, were "the only authoritative indications of congressional 
intent regarding the scope of§§ 901 and 902" of Title IX, because § § 901 and 
902 originated as a fioor amendment and no committee report discussed 
them. 456 U.S. at 526-27. 

The other case cited by the Solicitor General, Grove City College v. Bell, 
_ U.S. _, 104 S. Ct. 1211 ( 1984 ), also involved an interpretation of Title 
IX. The Court in Grove City again recognized that "statements by individual 
legislators should not be given controlling effect," but cited North Haven to 
support its position that "Sen. Bayh's remarks are 'an authoritative guide to 
the statute's construction.' " 104 S. Ct. at 1219. The Court indicated that Sen. 
Bayh's remarks were authoritative only to the extent that they were consistent 
with the language of the statute and the legislative history. !d. 

Thus, North Haven and Grove City concern the significance of a sponsor's 
expressed views in the absence of a relevant statement in a committee report. 
Here, in marked contrast, the Solicitor General draws an unwarranted 
inference that electoral success might preclude a Section 2 claim from Senator 
Dole's expressed desire to avoid a requirement of proportional representation, 
and then asserts that inference as superior to an express statement to the 
contrary in the Senate Report. 



23 

compromise wording as merely a clarification of the intent of 
Congress.29 In these circumstances, there is no reason to 
conclude that the Committee Report, prepared after adoption 
of the compromise, and accepted by all as an accurate ex­
planation of it, loses its status as the most authoritative guide to 
legislative intent. 

III. THE DISTRICT COURT APPROPRIATELY LOOKED 
TO THE TOTALITY OF CIRCUMSTANCES IN­
CLUDING THE EVIDENCE OF SOME BLACK ELEC­
TORAL SUCCESS TO DETERMINE WHETHER 
BLACKS HAD EQUAL OPPORTUNITY TO PARTICI­
PATE IN THE ELECTORAL SYSTEM; THE COURT 
DID NOT REQUIRE PROPORTIONAL REPRE­
SENTATION 

At bottom, the argument of the Solicitor General and 
appellants, that limited electoral success by members of a 
minority group should be conclusive evidence that the group 
enjoys an equal opportunity to participate, rests on the claim 
that such a rule is implicit in the disclaimer that Section 2 does 
not provide a minority group the right to proportional repre­
sentation. All parties agree that Section 2 was not intended by 
Congress to provide a right to proportional representation-but 
that point has no significance to the immediate issue. 

As the pre-Bolden case law discussed previously illustrates, 
the trier of fact may find a denial of equal voting opportunity 
where, despite evidence of some minority group electoral 
success, evidence of other historical, social and political factors 
indicates such a denial. See, e.g., White v. Regester, 412 U.S. 
755 ( 1973 ); Kirksey v. Board of Supervisors, 554 F.2d 139 (5th 
Cir. ), cert. denied, 434 U.S. 968 ( 1977); Zimmer v. McKeithen, 
485 F.2d 1297 (5th Cir. 1973 ), aff'd sub nom. East Carroll 
Parish School Bd. v. Marshall, 424 U.S. 636. Such a finding in 
no way implies or necessitates that Section 2 be applied as a 
guarantee of proportional representation. The "dispropor­
tionality" of minority group representation is not the gravamen 

29 See text and notes accompanying nn. l4-17, supra. 



24 

of the Section 2 claim in such a case, though it may be a factor; 
rather, it is the confluence of factors which indicates that an 
equal opportunity to participate in the political process and to 
elect representatives of their choice has been denied members 
of the group. ao 

In order to determine whether a violation of Section 2 has 
occurred, courts are to consider whether, given the "totality of 
circumstances," members of a protected class have been given 
an equal opportunity to participate in the e1ectoral process and 
to elect representatives of their choice. In its opinion, the 
district court appeared to undertake just the sort of "totality of 
circumstances" analysis in the challenged state legislative dis­
tricts as is required by Section 2. In fact, the district court, 
quoting the Senate Report at 28-29, set forth the nine so-called 
"Zimmer, factors which may be relevant in determining wheth­
er a Section 2 violation has been established, and proceeded to 
analyze those factors. 590 F. Supp. at 354. 

The court stated that it found a high degree of racially 
polarized or bloc voting, such that in all districts a majority of 
the white voters never voted for any black candidate. The 
existence of racially polarized voting is a significant factor in 
determining whether vote dilution exists, particularly where, as 
here, large multimember districts are involved.3 1 See McMillan 

30 As the Solicitor General himself points out, " [a] mended Section 
2 ... focuses not on guaranteeing election results, but instead on securing to 
every citizen the right to equal 'opportunity ... to participate in the political 
process .. . .'" Brief for the United States as Amicus Curiae 14. Congress 
could not have been more clear in expressing its intention that election results 
alone should not be determinative of a Section 2 claim. 

31 We do not suggest that white voters should be forced to vote for 
minority candidates. Every voter, regardless of race has the right to vote for 
the candidate of his or her choice. If, however, a majority of white voters will 
not vote for a black candidate in any circumstance, and large multimember 
districts with majority white voting populations are drawn, the minority vote 
is likely to be of relatively little consequence. At best, minority voters are 
required to "single-shot" their votes to elect any black candidates in the face 
of the majority white opposition. 

Because of idiosyncrasies that may be present in any particular election, 
the court should look at more than one election, as the district court did, to 
assess the pattern of racially polarized voting. Of course, for this reason, 
black success in a single election, even with some white support, cannot be 
determinative. 



25 

v. Escambia County, 748 F.2d 1037 (5th Cir. 1984 ); United 
States v. Dallas County Commission, 739 F .2d 1529 (11th Cir. 
1984 ) ; United States v. Marengo County Comm'n, 731 F .2d 
1546 (11th Cir. ), cert. denied, __ u.s. __ , 105 S. Ct. 375 
( 1984 ). This brief does not contend that all at-large, 
multimember districts should be suspect or subject to challenge 
under Section 2. Rather, the district court acknowledged that 
"a multimember district does not alone establish that vote 
dilution has resulted," 590 F . Supp. at 355, but found that large 
multimember districts along with severe racial polarization in 
voting and other factors combined here to create ·such dilu­
tion.32 

The district court stated further that it found a history of 
official discrimination against blacks in voting matters-in­
cluding the use of devices such as a poll tax, a literacy test, and 
an anti-single-shot voting law-which had continuing effect to 
depress black voter registration. 590 F. Supp. at 359-61. 
Although the district court acknowledged that these devices 
were no longer employed by the early 1970s, it also recognized 
that their existence for over half a century has had a lasting 
impact. /d. at 360. The lasting impact of historical dis­
crimination on the present-day ability to participate in the 
electoral process has also been recognized in other recent cases. 
Cf United States v. Marengo County Comm 'n, 731 F.2d at 1567 
(" [ P] ast discrimination can severely impair the present-day 
ability of minorities to participate on an equal footing in the 
political process."); McMillan v. Escambia County, 748 F.2d at 
1043-44. 

The district court decision rests, in part, on the fact that this 
history of official discrimination is still relatively close in terms 
of time. The court noted that a "good faith" effort is now being 

32 The Solicitor General mischaracterizes the district court's position in 
suggesting that it improperly defined racially polarized voting to exist where 
more than 50 percent of whites and blacks vote for a different candidate. The 
district court's finding of racially polarized voting instead was based on 
extensive expert testimony which established that a majority of white voters 
will not vote for any minority candidates. This was the case even when blacks 
ran for office unopposed. 



26 

made by the responsible state agency to remedy the effects of 
past discrimination. The court observed: 

" ' . .. If continued on a sustained basis over a 
sufficient period, the effort might succeed in removing 
the disparity in registration which survives as a legacy 
of the long period of direct denial and chilling by the 
state of registration by black citizens. But at the 
present time the gap has not been closed, and there is 
of course no guarantee that the effort will be contin­
ued past the end of the present state adminis­
tration.' " 590 F. Supp. at 361. 

The court below also recognized as significant the majority 
vote requirement imposed by North Carolina in primaries. Cf 
Zimmer, 485 F.2d at 1305. Because of the historical domina­
tion of the Democratic party in local races, this majority vote 
requirement in primaries substantially impeded minority voters 
from electing candidates of their choice. 590 F. Supp. at 363. 
Recent cases which have considered amended Section 2 have 
reached similar conclusions. Cf McMillan v. Escambia County, 
supra, 748 F.2d at 1044 ("[A] majority vote is required during 
the primary in an area where the Democratic Party is domi­
nant. This factor weighs in favor of a finding of dilution."); 
United States v. Dallas County Commission, supra, 739 F.2d at 
1536 (" [T]he requirement of a majority in the primary plus the 
significance of the Democratic primary combined to 'weigh[] 
in favor of a finding of dilution . .. .' "); United States v. 
Marengo County Commission, 731 F.2d at 1570 (A showing of 
vote dilution is "enhanced" by a majority vote requirement in 
the primary). 

The district court found that " [ f] rom the Reconstruction 
era to the present time, appeals to racial prejudice against black 
citizens have been effectively used by persons, either candidates 
or their supporters, as a means of influencing voters in North 
Carolina political campaigns." 590 F. Supp. at 364. 

Moreover, the racial appeals "have tended to be most 
overt and blatant in those periods when blacks were o~enly 
asserting political and civil rights." !d. The district court 



27 

concluded that the effect of racial appeals "is presently to lessen 
to some degree the opportunity of black citizens to participate 
effectively in the political processes and to elect candidates of 
their choice." /d. Racial electoral appeals are a relevant factor. 
Senate Report at 29. While not present in this case, one must 
be sensitive to the possibility of racial electoral appeals. by 
minority candidates as well. 

And, the district court found that North Carolina had 
offered no legitimate policy justification for the form of the 
challenged districts. 590 F. Supp. at 373-74. As the court in 
Marengo County acknowledged, "the tenuousness of the justifi­
cation for a state policy may indicate that the policy is unfair." 
731 F.2d at 1571 (citation omitted) , 

The foregoing findings contained in the district court 's 
opinion illustrate that in deciding this case the court appropri­
ately considered the factors that Congress found relevant in 
assessing the "totality of circumstances." Amici also note that 
the district court analyzed black electoral success at length, as 
the statute contemplates, as "one circumstance to be consid­
ered." However, the Court found that in light of the totality of 
circumstances this evidence of electoral success was inadequate 
to establish that blacks had an equal opportunity to participate 
in the political process, because it was due to the presence of a 
variety of factors other than those which indicated that blacks 
had been given an equal opportunity to participate in the 
political process. 

In the 1982 election in House District 36 (Mecklenburg 
County), for example, black candidate Berry was elected. 590 
F. Supp. at 369. In that election, however, there were only 7 
white candidates for 8 positions so that 1 black candidate had 
to be elected. /d. Even under these circumstances, only 42 
percent of the white voters voted for Berry, the black candidate, 
in the general election, and Berry was the first black representa­
tive elected from House District 36 in this century. 590 F. Supp. 
at 365, 369. Seven other black candidates ran unsuccessfully 
for office between 1966 and 1981, and there was another black 
candidate in the 1982 election who lost. !d. 



28 

In Senate District 22, which also includes Mecklenburg 
County, only one black candidate has been elected, and he 
served from 1975-1980. 590 F. Supp. at 365. In 1980 and 
1982, black candidates ran unsuccessfully, leaving an all-white 
four-member Senate delegation for this District. Id. In the 
1980 and 1982 elections, not more than 33 percent of white 
voters voted for the black candidates, 590 F. Supp. at 369, 
while 78-94 percent of the black voters voted for the black 
candidates. !d. Even in the 1982 general election, where 94 
percent of the black voters voted for the black candidate, the 
black candidate lost. !d. This illustrates the extreme difficulty 
blacks have in electing black candidates where there is racially 
polarized voting in a large, predominantly white multimember 
district. 

Even in House District 23 (Durham County), which, on 
the surface, has a relatively successful rate of minority electoral 
success compared with some of the other challenged districts, 
factors other than equal access to the political process have 
contributed to that success. One black has been elected to the 
House each term since 1973. 590 F . Supp. at 366. In the 1978 
general election and the 1980 primary and general elections, 
however, the black candidate ran uncontested. !d. at 370. 
Furthermore, in the 1982 primary there were only two white 
candidates for three seats so that one black necessarily had to 
win. Id. Nevertheless, more than halfofthe white voters failed 
to vote for the black candidates, even when they had no other 
choice. !d. at 370-71.33 

In light of these findings, the district court found a denial 
of voting rights under its "totality of circumstances" analysis, 
despite some evidence of black electoral success. 590 F. Supp. 
at 376. The court observed that because of the racially 
polarized electorate, this electoral success came at a price. 
" [ T] o have a chance of success in electing candidates of their 
choice in these districts, black voters must rely extensively on 
single-shot voting, thereby forfeiting by practical necessity their 
right to vote for a full slate of candidates." !d. at 369. 

33 See footnote I at p. 5, supra, for a brief outline of other minority 
electoral successes at issue here. 



29 

Furthermore, the court stressed that even this success was a 
recent phenomenon, and insofar as the 1982 elections were 
concerned, was "too 'haphazard' and aberrational in terms of 
specific candidates, issues, and political trends, and, in any 
event, still too minimal in numbers, to support any such 
ultimate inference" of equality of opportunity. /d. at 367 n.27. 

The Solicitor General and appellants' position would nar­
row the scope of analysis in a fashion Section 2 does not permit. 
It would require the Court to ignore the totality of circum­
stances evidencing a denial of equal political and electoral 
opportunity in favor of focusing on only the most recent 
election returns. If those returns evidenced any noticeable 
success by minority candidates, that would be dispositive. 

The Solicitor General and appellants try to justify this 
approach by arguing that the congressional rejection of a test of 
proportionality necessitates a finding that limited electoral 
success is dispositive of a Section 2 claim. The district court, in 
analyzing the "totality of circumstances," neither ignored elec­
toral success by minorities, nor found this one factor to be 
conclusive. There is no suggestion in the opinion of the district 
court that it misinterpreted the intent of Congress and found a 
denial of voting rights simply because blacks had attained less 
than proportional success. Rather, the district court expressly 
acknowledged that the lack of proportional representation is 
insufficient to establish a Section 2 violation. 590 F. Supp. at 
355. 



30 

CONCLUSION 

For the reasons set forth above, amici respectfully request 
that this Court affirm the .decision below, and recognize the 
necessity of measuring a violation of Section 2 on the basis of 
the "totality of circumstances," with particular emphasis on the 
factors set forth in Zimmer and the Senate Report. 

Dated: August 30, 1985 

Respectfully submitted, 

WALTER J. ROCKLER 

(Counsel of Record) 
MARK P . GERGEN 

BARBARA L. ATWELL 

ARNOLD & PORTER 

1200 New Hampshire Ave., N .W. 
Washington, D .C. 20036 
(202) 872-6789 

Attorneys for Amici Curiae 







[ 

Supreme Court of the 
.. United States 

October Term, 1985 

HEARING LIST 
For the Session Beginning 

December 2, 1985 

THE JUSTICES AND THE JUDICIAL CIRCUITS 
TO WHICH THEY ARE ASSIGNED 

HoN. WARREN E. BuRGER, Chief Justice, Fourth, Dis­
trict of Columbia and Federal Circuits. 

HON. WILLIAM J . BRENNAN, JR., Associate Justice, 
First and Third Circuits. 

HON. BYRON R. WHITE, Associate Justice, Fifth and 
Tenth Circuits. 

HON. THURGOOD MARSHALL, Associate Justice, Second · 
Circuit. 

HoN. HARRY A. BLACKMUN, Associate Justice, Eighth 
Circuit. 

HoN. LEWIS F. POWELL, JR., Associate Justice, Eleventh 
Circuit. 

HoN. WILLIAM H. REHNQUIST, Associate Justice, Ninth 
Circuit. 

HoN. JOHN PAUL STEVENS, Associate Justice, Seventh 
Circuit. 

HoN. SANDRA DAY O'CONNOR, Associate Justice, Sixth 
Circuit. 

OFFICERS OF THE COURT 

JosEPH F . SPANIOL, JR., Clerk. 
HENRY C. LIND, Reporter of Decisions. 
ALFRED WONG, Marshal. 
STEPHEN G. MARGETON, Librarian. 



NOTICE TO COUNSEL 

1. The Clerk timely informs counsel as to the day 
counsel must be present for oral argument. The Court 
convenes at 10 a. m. and each case is usually heard on the 
date assigned. 

2. Counsel scheduled to argue must register with the 
Chief Deputy Clerk in Room G26 at 9:05 a. m. on the day 
assigned for argument. Identification cards will be 
issued to the attorneys authorized to occupy seats at 
argument tables. Counsel arguing cases should not in­
troduce themselves nor introduce co-counsel to the Court 
at the time of argument. A member of the Court should 
be addressed as "Justice"-not judge. 

3. CounseJ are expected to take note of time limi­
tations and inquiry should not be made of the Court as 
to the amount of time remaining. A white light will 
appear when five minutes remain and a red light when 
the time has expired unless other arrangements are made 
with the Marshal. Counsel should conclude argument 
promptly when the red light appears unless responding 
to a question by a Justice. 

4. When counsel desires to reserve time for rebuttal, 
or when divided argument has been authorized, arrange­
ments may be made with the Marshal, prior to the time 
the case is called, to have an appropriate signal flashed 
at a specified time. When counsel have agreed to a divi­
sion of time for argument, the use of more than the 
agreed time by one attorney does not extend the total 
time allotted. During argument counsel should at all 
times speak into the microphone so that the Justices may 
hear them and that a clear tape recording can be made. 
When turning to refer to a visual aid or an exhibit, coun­
sel should be careful to remain within range of the micro­
phone. Counsel should also avoid having notes or books 
touch the microphone since this seriously interferes with 
the recording process. 

5. Counsel in cases to be argued in the afternoon 
should assemble at the Clerk's desk in the Courtroom 
when the noon recess begins. An escort will arrange 
expedited service in the public cafeteria located in the 
Court building. · 

6. Appropriate attire for counsel is conservative busi­
ness dress. If formal attire is worn, it should conform 
with custom. 

JosEPH F. SPANIOL, JR., Clerk. 



HEARING LIST 
No. 84-1503. Chicago Teachers Union, Local No . 1, 

AFT, AFL-CIO, et al . v. Annie Lee Hudson_, et al. 

Certiorari to the C. A. 7th Circuit. 
For petitioners: Laurence Gold, Washington, D. C. 
For respondents.: Edwin Vieira, Jr., Manassas, Va. 
(1 hour for argument.) 

No. 84-1160. Bertold J . Pembaur v. City of Cincin-
nati, et al. 

Certiorari to the C. A. 6th Circuit. 
For petitioner: Robert E. Manley, Cincinnati, Oh. 
For respondents: Roger E. Friedmann, Assistant Pros­

ecuting Attorney, Hamilton County, Ohio, Cincinnati, 
Oh. . 

(1 hour for argument.) 

No. 84-1640. United States v. Marshall Mechanik , 
et al.; 

No. 84-1700. Jerome Otto Lill v. United States; and 
No. 84-1704. MarshallMechanik, akaMichaelPatrick 

Flanagan v. United States. 

Certiorari to the C. A. 4th Circuit. 
For Marshall Mechanik and Jerome Otto Lill: Bruce J . 

Rosen, Madison, Wis. 
For United States: Mark I. Levy, Assistant to the Solici­

tor General, Department of Justice, Washington, D. C. 
(Consolidated-! hour for argument.) 

No. 84-1555. John L. Connolly, et al., etc. v. Pension 
Benefit Guaranty Corporation, etc., et al.; and 

No. 84-1567. Woodward Sand Company, Inc. v. Pen­
sion Benefit Guaranty Corporation, etc., et al. 

Appeal from the U. S. D. C. for the Central District of 
California. 

For appellants in No. 84-1555: Wayne Jett, Los Angeles, 
Calif. 

For appellants in No. 84-1567: Richard M. Freeman, San 
Diego, Calif. 

For appellees: Baruch A. Fellner, General Counsel, Pen­
sion Benefit Guaranty Corporation, Washington, D. C. 

(Consolidated-! hour for argument.) 



-4-
No. 84-1602. Jack Anderson, et al. v. Liberty Lobby, 

Inc. and Willis A. Carto. 

Certiorari to the C. A. District of Columbia Circuit. 
For petitioners: David J. Branson, Washington, D. C. 
For respondents: Mark Lane, Washington, D. C. 
(1 hour for argument.) 

No. 84-1491. Philadelphia Newspapers, Inc. , et al. v. 
Maurice S. Hepps, et al. 

Appeal from the Supreme Court of Pennsylvania, East-
ern District. 

For appellants: David H. Marion, Philadelphia, Penn. 
For appellees: Ronald H. Surkin, Philadelphia, Penn. 
(1 hour for argument.) 

No. 84-1616. Parsons Steel, Inc. , et al. v. First 
Alabama Bank and Edward Herbert. 

Certiorari to the C. A. 11th Circuit. 
For petitioners: Frank M. Wilson, Montgomery, Ala. 
For respondents: M. Roland Nachman, Jr., Montgom-

ery, Ala. 
(1 hour for argument.) 

No. 84-1580. United States v. Joseph Inadi. 

Certiorari to the C. A. 3rd Circuit. 
For petitioner: Andrew L. Frey, Deputy Solicitor Gen­

eral, Department of Justice, Washington, D. C. 
For respondent: Ms. Holly Maguigan, Philadelphia, 

Penn. 
(1 hour for argument.) 

No. 83-1968. Lacy H. Thornburg, et al. v. Ralph 
. Gingles, et al. 

Appeal from the tJ. S. D. C. for the Eastern District of 
North Carolina. 

For appellants: Lacy H. Thornburg, Attorney General of 
North Carolina, Raleigh, N. C.; and Charles Fried, 
Solicitor General, Department of Justice, Washington, 
D. C. (for United States, as amicus curiae.) 

For appellees: Julius L. Chambers, New York, N. Y. 
(1 hour for argument.) 



-5-

No. 84-1493. National Labor Relations Board v. 
Financial Institution Employees of America, etc., 
et al.; and 

No. 84-1509. Seattle-First National Bank v. Finan­
cial Institution Employees of America, etc., et al. 

Certiorari to the C. A. 9th Circuit. 
For petitioner in No. 84-1493: Norton J. Corne, Deputy 

Associate General Counsel, National Labor Relations 
Board, Washington, D. C. 

For petitioner in No. 84-1509: Mark A. Hutcheson, Seat­
tle, Wash. 

For respondents: Laurence Gold, Washington, D. C. 

(Consolidated-! hour for argument.) 

No. 84-1644. Golden State Transit Corporation v. City 
of Los Angeles. 

Certiorari to the C. A. 9th Circuit. 
For petitioner: Zachary D. Fasrnan, Washington, D. C. 
For respondent: John Haggerty, Assistant City Attor-

ney of Los Angeles, Los Angeles, Calif. 

(1 hour for argument.) 

No. 84-1601. Aetna Life Insurance Co. v. Margaret 
W. Lavoie and Roger J. Lavoie, Sr. 

Appeal from the Supreme Court of Alabama. 
For appellant: Theodore B. Olson, Washington, D. C. 
For appellees: Jack N. Goodman, Washington, D. C. 

(1 hour for argument.) 

No. 84-6807. Millie R . Lee v. Illinois . 

Certiorari to the Appellate Court of Illinois, Fifth 
District. 

For petitioner: Dan W. Evers, Mt. Vernon, Ill. 
For respondent: Mrs. Jill Wine-Banks, First Assistant 

Attorney General of Illinois, Chicago, Ill. 

(1 hour for argument.) 



-6-
No. 84-1531. Michigan v. Robert Bernard Jackson; 

and 
No. 84-1539. Michigan v. Rudy Bladel. 

Certiorari to the Supreme Court of Michigan. 
For petitioner: Brian E. Thiede, Chief Appellate Attor­

ney, Jackson County Prosecutor's Office, Jackson, 
Mich. 

For respondent in No. 84-1531: James Krogsrud, De­
troit, Mich. (appointed by this Court.) 

For respondent in No. 84-1539: Ronald J . Bretz, Lan­
sing, Mich. (appointed by this Court.) 

(Consolidated-1 hour for argument.) 

No. 84-1484. Wisconsin Department of Industry , 
Labor and Human Relations, et al. v. Gould, Inc. 

Appeal from the C. A. 7th Circuit. 
For appellants: Charles D. Hoornstra, Assistant Attor­

ney General of Wisconsin, Madison, Wis. 
For appellee: Columbus R. Gangemi, Jr., Chicago, Ill. 
(1 hour for argument.) 

No. 84-978. Exxon Corportion, et al. v. Robert Hunt, 
Administrator of New Jersey Spill Compensation 
Fund, et al. 

Appeal from the Supreme Court of New Jersey. 
For appellants: Daniel M. Gribbon, Washington, D. C. 
For appellees: Ms. Mary Carol Jacobson, Deputy Attor-

ney General of New Jersey, Trenton, N.J. 

(1 hour for argument.) 

No. 84-1077. Harol Whitley, Individually and as As­
sistant Superintendent, Oregon State Penitentiary, 
et al. v. Gerald Albers. 

Certiorari to the C. A. 9th Circuit. 
For petitioners: Dave Frohnmayer, Attorney General of 

Oregon, Salem, Ore. 
For respondent: Gene B. Mechanic, Portland, Ore. 

(appointed by this Court.) 

(1 hour for argument.) 



-7-
No. 84-1198. Texas v. Sanford James McCullough. 

Certiorari to the Court of Criminal Appeals of Texas. 
For petitioner: Randall L. Sherrod, Criminal District 

Attorney of Randall County, Canyon, Tex. 
For respondent:·Jeff Blackburn, Amarillo, Tex. (pro hac 

vice) 
(1 hour for argument.) 

No. 84-1259. Dow Chemical Company v. United 
States, etc. 

Certiorari to the C. A. 6th Circuit. 
For petitioner: Miss Jane M. Gootee, Midland, Mich. 
For respondent: Alan I. Horowitz, Assistant to the Solic-

itor General, Department of Justice, Washington, D. C. 
(1 hour for argument.) 

No. 84-1513. California v. Dante Carlo Ciraolo . 

Certiorari to the Court of Appeal of California, First 
Appellate District. 

For petitioner: Laurence K. Sullivan, Deputy Attorney 
General of California, San Francisco, Calif. 

For respondent: Marshall Warren· Krause, Larkspur, 
Calif. (appointed by this Court.) 

(1 hour for argument.) 

35 Orig. United States v. Maine, et al. 

On Exceptions to Report of Special Master. 
For United States: Louis F. Claiborne, Special Assist­

ant, Office of the Solicitor General, Department of 
Justice, Washington, D. C. 

For Massachusetts: Henry Herrmann, Special Assistant 
Attorney General of Massachusetts, Boston, Mass. 

(1 hour for argument.) 

No. 84-782. South Carolina, et al. v. Catawba Indian 
Tribe of South Carolina. 

Certiorari to the C. A. 4th Circuit. 
For petitioners: James D. St. Clair, Boston, Mass. 
For respondent: Don Brantley Miller, Boulder, Colo. 
(1 hour for argument.) 



-

-8-

No. 84-6646. Willie Lloyd Turner v. Allyn R. Sielaff, 
Director, Virginia Department of Corrections. 

Certiorari to the C. A. 4th Circuit. 
For petitioner: J. Lloyd Snook, III, Charlottesville, Va. 

(appointed by this Court.) 
For respondent: James E. Kulp, Senior Assistant Attor­

ney General of Virginia, Richmond, Va. 

(1 hour for argument.) 

No. 84-6263. James Kirkland Batson v. Kentucky. 

Certiorari to the Supreme Court of Kentucky. 
For petitioner: J . David Niehaus, Louisville, Ky. 
For respondent: Rickie L. Pearson, Assistant Attorney 

General of Kentucky, Frankfort, Ky.; and Lawrence 
G. Wallace, Deputy Solicitor General, Department 
of Justice, Washington, D. C. (for United States, as 
amicus curiae.) 

(1 hour for argument.) 


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	LDFA-03_gin-v2_01_0026
	LDFA-03_gin-v2_01_0027
	LDFA-03_gin-v2_01_0028
	LDFA-03_gin-v2_01_0029
	LDFA-03_gin-v2_01_0030
	LDFA-03_gin-v2_01_0031
	LDFA-03_gin-v2_01_0032
	LDFA-03_gin-v2_01_0033
	LDFA-03_gin-v2_01_0034
	LDFA-03_gin-v2_01_0035
	LDFA-03_gin-v2_01_0036
	LDFA-03_gin-v2_01_0037
	LDFA-03_gin-v2_01_0038
	LDFA-03_gin-v2_01_0039
	LDFA-03_gin-v2_01_0040
	LDFA-03_gin-v2_01_0041
	LDFA-03_gin-v2_01_0042
	LDFA-03_gin-v2_01_0043
	LDFA-03_gin-v2_01_0044
	LDFA-03_gin-v2_01_0045
	LDFA-03_gin-v2_01_0046
	LDFA-03_gin-v2_01_0047
	LDFA-03_gin-v2_01_0048
	LDFA-03_gin-v2_01_0049
	LDFA-03_gin-v2_01_0050
	LDFA-03_gin-v2_01_0051
	LDFA-03_gin-v2_01_0052