Correspondence from Chambers and Winner to Hebert

    N o.‘ 83-1968

 

in 1112 gmpremv anurt at the 15mm: 57151125

OCTOBER TERM, =1985
,LAGY H. THORNBpRfi,ETAL, AEPELLANTS
’0.

RALPH GINGLES,, ET AL-

 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA

 

,, ' BRIEF FOR THE UNITED STATES A .
AS AMICUS CURIAE SUPPORTING APPELLANTS

CIfAmEs FRIED
Aeting Solicitor General

WM. BRADFORD REYNOLDS
Asszstantpélttomey General

CHARLESJ COOPER

Dleputy Assistant Aftomey General

?;1zPA f J. LARKIN, JR.
,- L istazzt to the Solmtor General
Department of Justice
Washington, D. C. 20530

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QUESTIONS PRESENTED

1. Whether the district court correctly construed
amended Section 2 of the Voting Rights Act of 1965,
42 U.S.C. 1973, as invalidating certain multi-member
legislative districts in which minority candidates had a
proven opportunity to participate in the electoral process,
on the ground that there was no guarantee that minori-
ties would enjoy the continued electoral success guaran-
teed by “safe” districts.

2. Whether racial bloc voting exists as a matter of
law whenever less than 50% of the white voters cast
ballots for a minority candidate.

(I)

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TABLE OF CONTENTS

 

Page
Interest of the United States ........................................... 1
Statement ........... 1
Introduction and, summary of argument .......................... 6

Argument :

The district court erroneously held that the re-
districting plan at issue violates amended Section
2 of the Voting Rights Act of 1965 .......................... 7

A. Amended Section 2 guarantees every citizen
the right to an equal opportunity to partici-
pate in the political process ............................. 7

B. The district court misapplied the factors ap-
propriate to an analysis of appellees’ claim of
unlawful vote dilution ......................................... 19

Conclusion 34

TABLE OF AUTHORITIES
Gases :

Beer V. United States, 425 US. 130 ........................ 17, 31
Block Voters V. MoDonough, 565 F.2d 1 ...... 14, 24, 28,33
Bose Corp. V. Consumers Union of United States,

Ino., No. 82‘~12‘4-6 (Apr. 30, 1984) ............... .. ....... 18,19
Bradds V. Rapides Parish Police Jury, 508 F.2d
1109. . ..1EI, 26, 33

Brooks V. mAllain, No. GG82— 80-WK-O (N.D“ Miss.
Apr. 16, 1984), aff’d, No. 83- 1865 (Nov. 13,

 

 

1984) 20
ankey V. Oliver, 565 F. Supp. 1473 .......................... 17
City Council v. Ketchum, cert. denied, No. 84—627

(June 3, 1985) 21
City of Lockhdrt V. United States, 460 US. 125.... 17
City of Mobile V. Bolden, 446 US. 55 ..................... possim
City of Rome V. United States, 446 US. 156 ............ 3
David V. Garrison, 553 F.2d 923119, 26, 28

(III)

IV

 

 

 

 

Cases—Continued : Page
Dove V. Moore, 539‘ F.2d 1152 ................... 14, 18, 28, 31
Dunstan V. Scott, 336 F. Supp. 206 ......................... 26
Grand Rapids School Dist. V. Ball, No. 83-990

(July 1, 1985) 19
Grove City College V. Bell, No. 82792 (Feb. 28,

1984) 15
Harper & Row, Publishers, Inc. v. Nation Enter—

prises, No. 83-1632 («May 20, 1985) .................... 18
Hendrix V. Joseph, 559‘ F.2d 1265 .............. 14, 19, 26, 28
Jones V. City of Lubbock, 727 F.2d 364, opinion on

rehearing, 730 F.2d 233 ...................................... 19‘, 29, 30
Ketchum v. Byrne, 740 F.2d 1398, cert. denied, No.

84-627 (June 3, 1985) ............................................ 17, 21
Lee County Branch of NAACP V. City of Opelika,

748 F.2d 1473 29,30
McCarty v. Henderson, 749 F.2d 1134 ....................... 26
M oCleskey V. Zant, 580 F. Supp. 338, afi’d, 753 F.2d

877 30
M cGill v. Gadsden County Comm’n, 535 F.2d 277.. 28
McMillan v. Escambia County, 7 48 F.2d 1037 .......... 24, 29
Metropolitan Edison Ca. V. PANE, 460 US. 766.... 18
North Haven Bd. of Educ. v. Bell, 456 US. 512.... 15
Patton V. Yount, No. 83-95 (June 2:6, 1984) .......... 18
Pullman-Standard v. Swint, 456 US. 273 ............... 34
Rogers V. Lodge, 458 US. 6131...._.. .............. . ......... 14, 27, 31

Seaman v. Upham, No. P-81-49FCA (E.D. Tex. Jan.
30, 1984), alf’d sub nom. Strake V. Seaman, No.

 

 

 

83- 1823 (Oct. 1, 1984) ............................ 18, 20, 30
Strickland V. Washington, No. 82-1554 (May 14,

1984) 18
Taylor V. MoKeithen, 499 F.2d 893 ........................ 31
Terrazas v. Clements, 581 F. Supp. 1329 .................. 29—30
Turner V. M cKeithen, 490 F.2d 191 ......................... 31
United Jewish Orgs. V. Carey, 430 US. 144 .......... 28, 31
United States V. Board of Supervisors, 571 F.2d

951 21
United States v. Marengo County Commfin 731

F. 2d 1546 -_ 29
Upham V. Seaman, 456 U. S 37 .................................. 21
Velasquez V. City of Abilene, 725 F. 2d 1017 ............ 19

Wainwright V. Witt, No. 83-1427 (J an. 21, 1985).- 18

 

Cases—Continued : Page
Wallace V. House, 515 F.2d 619, vacated and re-

manded, 425 US. 947 . 24, 33
Walters V. National Ass’n of Radiation Survivors,

No. 84-571 (June 28, 1985) ................................... 18-19
Whitoomb V. Chavis, 403 US. 124 .............................. passim
White V. Regester, 412 US. 755 9, 10, 12, 14, 20,

25, 29, 31, 33
Wyche V. Madison Parish Police Jury, 635 F.2d
1151 ..... 3

 

Zimmer V. McKeith-en, 485 F.2d 1297, aff’d sub
nom. East Carroll Parish School Bd. V. Mar-

 

shall, 424 US. 636 ................ 14, 24, 26, 33
Constitution, statute and rule:
US. Const. Amend. I (Establishment Clause) ........ 19
Voting Rights Act of 1965, 42 U.S.C. 1971 et seq.:
-§ 2, 42 U.S.C. (1976 ed.) 1973 .............................. 2
.§ 2, 42 U.S.C‘. 197 3. ....... - ..................................... p assim
§ 21(b), 42, U.S.Ci. 1973(b) ................................... 27
§ 5, 42 U.S.C. (1976 ed.) 1973c ........................... 2
1§ 5, 42 USS". 1973c 17
Fed. R. Civ. P. 52 (a) ............... 17, 19
Miscellaneous :

Boyd & Marktnan, The 1982 Amendments to the
Voting Rights Act.“ A Legislative History, 40

Wash. & Lee L. Rev. 1347 (1983) ....................... 9, 10
127 Cong. Rec.:
p. 815372 (daily ed. Dec. 15, 1981) .................... 9
p. 815694 (daily ed. Dec. 16, 1981) ..................... 9
128 Cong. Rec.:
pp. H3840—H3841 (daily ed. June 23, 1982) ______ 13
p. H3841 (daily ed. June 23, 1982) 13, 14, 17
p. H3842 (daily ed. June 23, 1982) 13
p. H3844 (daily ed. June 23, 1982) .................... 13
p. H3846 (daily ed. June 23, 1982) .................... 12, 13
p. S6500 (daily ed. June 9, 1982) ...................... 16
p. 86557 (daily ed. June 9, 1982) ...................... 16

p. S6560 (daily ed. June 9, 1982) ...................... 16

VI

Miscellaneous~Continued : Page
p. 86647 (daily ed. June 10, 1982;) ...................... 13, 16
p. 86648 (daily ed. June 17, 1982) .................... 18
p. 86655. (daily ed. June 10, 1982‘) ....................... 16
p. S6717 (daily ed. June 14, 1982) ...................... 16
pp. 86717—86718 (daily ed. June 17, 1982) ...... 16
p. 867 7 9 (daily ed. June 15, 1982) ..................... 16
p. 86920 (daily ed. June 17, 1982) .................... 13
p. 86930 daily ed. June 17, 1982) ...................... 17
p. S6941 (daily ed. June 17, 1982) .................... 14
p. S6961 (da-ily ed. June 17 , 1982;) 13, 14, 15
p. 86962 (daily ed. June 17 , 1982‘) ...................... 15, 16
p. S6964 (daily ed. June 17, 1982') ...................... 16, 26
p. S7095 (daily ed. June 18, 1982) .................... 17
p. 87110 (daily ed. June 18, 1982) ...................... 16
p. 87118 (daily ed. June 18, 1982) ...................... 16
p. 87119 (daily ed. June 18, 1982) .................... 16
p. S7120 (daily ed. June 18, 1982) .................... 16
p. 87138 (daily ed. June 18, 1982) .................... 16
p. 87139 (daily ed. June 18, 1982) .................... 12

Extension of the Voting Rights Act: Hearings
Before the Subcomm. on Civil and Constitu—
tional Rights of the House Comm. on the Judi-

ciary, 97th Cong, lst Sess. Pt. 1 (1981) .............. 8
HR. 3112, 97th Gang, 1st Sess. (1981) ..................... 8, 9
HR. 3198, 97th Gong, 1st Sess. (1981) ...................... 8
HR. Rep. 97—227, 97th Cong, lst Sess.. (1981) ........ 9, 13,

14, 33
S. 1975, 97th Cong, 1st Sess. (1981) .......... . ................ 9
S. 1992, 97th Cong, 1st Sess. (1981) .......................... 9
S. 3112, 97th Cong, 1st Sess. (1981) ........................ 9
8. Rep. 97-417, 97 th Cong, 2d Sess. (1982) ............... passim

Voting Rights Act: Hearings on S. 53, et al. Be-
fore the Subcomm. on the Constitution of the
Senate Comm. on the Judiciary, 97th Cong, 2d
Sess. (1982) :

 

Vol. 1 , .. . .-.-passim
Vol. 2 12, 17, 20

Voting Rights Act: Report of the Subcomm. on the
Constitution of the Senate Judiciary Comm, 97 th
Cong, 2d Sess. (1982) ............................................ 10, 13
18 Weekly Comp. Pres. Doc. 846 (June 29*, 1982)-. 13

31:1 the Supreme (11mm of the linden States

OCTOBER TERM, 1985

No. 834968
LACY H. THORNBURG, ET AL., APPELLANTS
v.
RALPH GINGLES, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING APPELLANTS

INTEREST OF THE UNITED STATES

On October 1, 1984, the Court entered an order invit-
ing the Solicitor General to express the Views of the
United States in this case. We responded in a brief
urging summary afirmance on two questions and ple-
nary review on two others, and the Court noted probable
jurisdiction on the latter two questions on April 29,
1985.

This case presents several questions concerning the
proper construction of the 1982 amendment to Section 2
of the Voting Rights Act of 1965, 42 U.S.C. 1973. The
United States has the primary responsibility for enforc-
ing the Voting Rights Act and thus has a substantial
interest in ensuring that the Act is construed in a man-
ner that advances, rather than impedes, its objectives.

STATEMENT
1. In July 1981, as a result of the 1980 census, North
Carolina enacted redistricting plans for the state’s House
of Representatives and Senate. In September 1981, ap-
pellees filed this suit, alleging that the plans had been

(1)

2

enacted pursuant to provisions of the North Carolina
constitution that required, but had not received, pre-
clearance pursuant to Section 5 of the Voting Rights
Act of 1965, 42 U.S.C. (1976 ed.) 1973c, and that the
use of large multi-member districts submerged concen-
trations of black voters and diluted minority voting
strength in violation of the Cpnstitution and Section 2
of the Voting Rights Act of 1965, 42 U.S.C. (1976 ed.)
1973 (J .8. App. 3a-4a.) .1 After the plans were ultimately
adopted by the state legislature? appellees amended their
pleadings to challenge five House Districts (Nos. 8, 21,
23, 26, and 39) and two Senate Districts (Nos. 2 and
22) and to conform their pleadings to the newly—amended
Section 2 of the Voting Rights Act?’ The “gravamen”
of appellees’ claim with reference to these multimember
districts was that the State’s plan “makes use of multi-
member districts with substantial white voting major-
ities in some areas of the state in which there are suffi-
cient concentrations of black voters to form majority
black single-member districts * * *” (J.S. App. 4a).
The plan was in this respect claimed to violate amended
Section 2 of the Voting Rights Act.

2. The case was tried before a three-judge court on
the basis of extensive stipulations of fact, documentary
evidence, and oral testimony (J .8. App. 8a). The court
entered an order and opinion containing extensive find-
ings on the various factors identified in the legislative
history of amended Section 2 and case law as relevant
to a vote dilution claim. J .8. App. 21a-51a. The court
held that “it has now become possible for black citizens
to be elected to all levels of state government in North
Carolina” (id. at 37a). However, the court further held

 

1 The state constitutional provision to which the suit referred was
a provision adopted in 1968 prohibiting the division of counties for
the purpose of creating electoral districts.

2 The proceedings are described in our earlier brief (at 1-2).

3 Only two of these districts—MHouse District 8 and Senate Dis-
trict 2—were subject to and had received preclearance under Sec-
tion 5 of the Voting Rights Act.

3

that, under the totality of the relevant circumstances,
the redistricting plan in all seven challenged districts
diluted minority votes in violation of amended Section 2
and enjoined elections in the challenged districts (ibid.).4

The district court also reviewed at length the racial
demographics and voting history of each challenged mul-
timember district.

House District 21. House District 21, in Wake County,
elects six members to the General Assembly on an at—
large basis (J.S. App. 19a). The population of the
district is 21.8% black, and black voters constitute 15.1%
of all registered voters (ibid.).5 72% of the white vot-
ing age population is registered to vote, and 49.7% of
the black voting age population is registered to vote
(id. at 24a n.22). The black population is so situated
that one single-member legislative district could be drawn
within the present boundaries, with a black population
of 67% (id. at 20a). Under the challenged plan and
its predecessor,6 one black legislator was elected in 1980

4 The district court found (J.S. App. 51a-52a) that the totality of
the following circumstances, in combination with the use of large
multi—member districts, diluted minority votes in each of the chal-
lenged districts: (1) “the lingering effects of seventy years of
ofl‘icial discrimination against black citizens in matters touching
registration and voting,” (2) “substantial to severe racial polariza-
tion in voting,” (3) “the effects of thirty years of persistent racial
appeals in political campaigns,” (4) “a relatively depressed socio-
economic status resulting in significant degree from a century of
de jure and de facto segregation,” and (5) “the continuing effect of
a majority vote requirement.” The court also found that‘in creating
the sole single—member district challenged—Senate District 2—the
State had diluted black voting strength by fracturing the black
community into- two districts containing black voting minorities
(J.S. App. 52a).

Subsequent proceedings are described in our earlier brief (at 3
ml).

'5 The court did not make a finding for any of the districts regard-
ing voting age population, which is the preferred measure. See City
of Rome V. United States, 446 U.S. 156, 186 n.22 (1980) ; Wyche V.
Madison Parish Police Jury, 635 F.2d 1151, 1161-1162 (5th Cir.
1981).

‘3 The challenged multi-member districts continued pre-existing
districts and their apportionments (J .8. App. 19a). Thus, it is pos-

4
and reelected in 1982 (id. at 35a, 44a). In those elec-
tions, respectively, he received the votes of 31% and 39%
of the white voters in the primary, and the votes of 44%
and 451% of the white voters in the general election (id.
at 44a.) .

Home District 23. House District 23, in Durham
County, elects three members at-large to serve two-year
terms in the General Assembly (J.S. App. 19a). The
black population is 36.3% of the total, and blacks con—
stitute 28.6% of the registered voters (ibid.). 66% of
the white voting age population is registered to vote, and
52.9% of the black voting age population is registered
(id. at 24a n.22). The black population is so situated
that one single-member district could be drawn within
the present boundaries, with a black population of 70.9%
(id. at 20a). Under the challenged plan and its prede
cessor, this district has elected one black representative
in every election since 1973 (id. at 35a). The black legis~
labor was unopposed in the general election in 1978, and
in both the primary and general elections in 1980. In
1978, he was elected with 16% of the white vote in the
primary, and in 1982 he received 37% of the white vote
in the primary and 43% of the white vote in the gen-
eral election.7 A second black candidate also garnered
26% of the white vote in the 1982 primary (id. at 43a-
44a).

House District 36. House District 36, in Mecklenburg
County, has an eight-member House delegation, elected
at-large (J .8. App. 19a). Blacks constitute 26.5% of
the district’s population and 18% of its registered voters
(ibid.) . 73% of the white voting age population is. regis-
tered to vote, and 50.8% of the black voting age popula-
tion is registered (id. at 24a n.22). The black popula-
tion of the district is so situated that two singlemetnber
legislative districts could be drawn that would be 66.1%

 

sible to evaluate the plan’s dilutive impact, if any, by looking at
results from more than. one election.

7In the 1982 primary election there were only four candidates,
two of whom were black, for three positions (J .8. App. 44a).

5

and 71.2% black (id. at 20a). Under the present plan,
one black representative was elected in 1982; he is the
first black citizen to be elected to the House from Meck—
lenburg County in this century (id. at 43a). He re-
ceived 50% of the white vote in the primary and 421% of
the white vote in the general election (id. at 41a).8 A
second, unsuccessful, black candidate received 39% of
the white vote in the 1982 primary and 29% in the gen-
eral election (ibid.).9

House District 39. House District 39, in a part of
Forsyth County, has five aft-large seats in. the General
Assembly (J JS. App. 19a). The population of the dis-
trict is 25.1% black, and blacks constitute 20.8% of the
registered voters (ibid.). 69.4% of the white voting age
population is registered to vote, and 64.1% of the black
voting age population is also registered (id. at 24a n.22).
The black population is so situated that one single-mem-
ber legislative district, with a 70.0% concentration of
black voters, could be drawn (id. at 20a). Under the
present plan, two of the five representatives elected in
1982 were black; under the predecessor plan, a black
representative was elected in 1974 and reelected in 1976
(id. at 35a). The two black representatives elected in
1982 received 25% and 36% of the white vote in the
primary election, and 42% and 461% in the general elec-
tion (id. at 43a). One of these representatives had pres
viously won the Democratic nomination in 1978 and
1980 (with 28% of the white vote in 1978 and 40% of
the white vote in 1980), but lost the general election in
those years (id. at 42a-43a).

Senate District 22. Senate District 22, in Mecklen-
burg and Cabarrus Counties, is a four member district
(J.S. App. 19a). The population is 24.3% black, and

 

3 There were only seven white candidates for eight positions in
the primary (J .S. App. 42a).

9 In addition, the district court observed that a black citizen has
been elected mayor of the City of Charlotte, receiving 38% of the
white vote in the general election against a white Republican (J .S.
App. 353.) .

6

16.8% of the registered voters are black (ibid.). In
Mecklenburg County, 73% of the white voting age popu-
lation is registered to vote, as is 50.8% of the black
voting age population (id. at 24a n.22).10 The black
population is so situated that one single—member district
could be created with a 7 0.0% black population (id. at
20a). Under the present plan, no black Senator is part
of the delegation; however, a black citizen was elected
from 1975-1980 (id. at 34a). The black senatorial in-
cumbent (Alexander) received 47% of the white vote in
the 197 8 primary, and 41% of the white vote in the gen-
eral election; his share of the white vote dropped to 23%
in the 1980 primary (id. at 42a). A second black candi-
date (Polk), running in 1982, garnered 32% of the white
votes in the primary and 33% in the general election.
I bid.

INTRODUCTION AND SUMMARY OF ARGUMENT

This is the first case in this Court to accord plenary
appellate review to a trial court’s {finding of a violation
of the 1982 amendment to Section 2 of the Voting Rights
Act. That provision, enacted after an intense legislative
struggle, represents a studied compromise that condemns
only those electoral procedures that “result” in a denial
of an “equal opportunity to participate in the electoral
process.” That conclusion is a matter of law, the proper
conception of which must be established and assured by
this Court. This ultimate determination requires deli-
cate judgments that can hardly be reached or reviewed
by any mechanical standard. If the integrity of the Sec-
tion 2 compromise is to be maintained, moreover, an ap-
pellate court must assure itself not only that a trial court
has considered the appropriate evidence in reaching its
conclusion, but also that this evidence, taken as a whole
and properly balanced, supports the trial court’s an—
swer to the ultimate question that Congress has pre-
scribed.

 

1‘0 The district court did not make a finding for Carrabus County
(see J.S. App. 24a-25a n22) .

7

The district court considered all of the evidence, but it
reached an ultimate conclusion at odds with the correct
legal standard. If left undisturbed, that decision means
that wherever there has been discrimination in the past
and some measure of racial polarization in voting in the
present, district courts will be free to strike down vir-
ltually any scheme that does not—or even those that do»—
deliver electoral successes proportional to minority vot-
ing strength. That is not what Congress intended. Spe-
cifically, we shall argue that the trial court, by ignoring
recent minority electoral successes in the districts in
issue, could not reasonably have found a violation under
the proper “equal opportunity to participate” standard,
but rather must implicitly have sought to guarantee con—
tinued minority electoral success. Further, the court be-
low adopted and made dispositive a definition of racial
block voting that, taken literally, might justify finding
this factor present in Virtually any district with a ra-
cially mixed electorate and thus could justify requiring
proportional representation in all such districts. Con-
gress crafted a precise standard fo-r intervention in the
electoral process, and fidelity to that standard requires
that this judgment be set aside11

ARGUMENT

THE DISTRICT COURT ERRONEOUSLY HELD THAT
THE REDISTRICTING PLAN AT ISSUE VIOLATES
AMENDED SECTION 2 OF THE VOTING RIGHTS
ACT OF 1965

A. Amended Section 2 Guarantees Every Citizen The
Right To An Equal Opportunity To Participate In The
Political Process

1. The legislative background of amended Section 2

underscores the centrality of the principles noted above
to the compromise enacted into that law. Amended Sec-

11 We will not discuss House District 8 and Senate District 2,
because appellants’ challenge to the district c0urt’s conclusion as to
those districts is not within the scope of the Court’s notation of
probable jurisdiction.

8

tion 2 reflects the consensus of an overwhelming majority
of the Congress, reached only after an intensive and
devisive debate, whether to endorse or reject the holding
in City of Mobile V. Bolden, 446 US. 55 (1980). The
product of that debate was a provision that does not re-
quire proof of racial animus to establish a violation of
amended Section 2 and does not allow proof of electoral
failure solely or even preponderantly to establish a vio—
lation under the Act. Congress chose an altogether differ-
ent approach: As adop-ted, Section 2 guarantees every
citizen equal access to the electoral process and thus
focuses upon that process itself.12

a. Amended Section 2 originated in the 97th Con-
gress when HR. 3112 was introduced to extend certain
features of the 1965 Voting Rights Act and to modify
Section 2 of the Act because of the decision in City of
Mobile. HR. 3112 would have eliminated an intent
standard by forbidding any jurisdiction from imposing
or applying any electoral practice “in a manner which
results in a denial or abridgemen-t of the right * * * to
vote on account of race or color * * *,” 13 a test claimed

1‘2 At the same time, the legislative history of amended Section 2
is complicated, variegated, and, on occasion, contradictory. The
language ultimately incorporated into this provision was proposed
by Senator Dole as a means of resolving a deadlock in the Senate
Judiciary Committee that arose after the Senate Constitution Sub—
committee had rejected the House version of Section 2. In this set-
ting, undue emphasis must not be given to the views of any one
faction in the controversy. The legislative history must be under-
stood in terms of its dominant movement and fundamental purposes.
Statements of the majority in the Senate Report, while illuminative
on many issues, must be evaluated against the record established
before the Congress as a whole and particularly against statements
o-f the additional views of individual members who insisted upon
and supported the compromise. The statements of Senator Dole, the
sponsor of the compromise, must also be given particular weight.

1‘3 HR. 3198, 97th Cong, 1st Sess. (1981). See Extension of the
Voting Rights Act: Hearings Before the Subcomm. on Civil and
Constitutional Rights of the House Comm. on the Judiciary, 97th
Cong., 1st Sess. Pt. 1, at 2 (1981) [hereinafter cited as House
Hearings].

9

by its supporters to stem from White V. Regester, 412
US. 755 (1973), and Whitcomb v. Charis, 403 U.'S. 124
(1971). Most of the discussion in the House regarding
HR. 3112 was devoted to other aspects of the bill; the
proposal to amend Section 2 attracted little debate.14 As
passed by the House, HR. 3112 contained the results test
in the original bill and a disclaimer that numerical un-
derrepresentation itself violated Section 2.15

b. After the House passed HR. 3112, the Senate Sub-
committee on the Constitution began hearings on two
bills, one that contained the results test in HR. 3112 (:S.
3112) and one that would have retained the City of
Mobile standard (iS. 1975).16 The ensuing debate focused
on the proper standard for Section 2. Proponents of a
results test chiefly argued that the Court’s holding in
City of Mobile insulated discriminatory practices from
review because of the difficulty of obtaining evidence re
gard‘ing the subjective motivations of legislators, espe-
cially when the practices in question were adopted long
ago.17 They proposed that the analysis should be based

14 See generally Boyd & Markman, The 1982 Amendments to the
Voting Rights Act: A Legislative History, 40 Wash. & Lee L. Rev.
1347, 1354-1379 (1983) [hereinafter cited as Boyd & Markman].

15 The disclaimer provided: “The fact that members of a minority
group have not been elected in numbers equal to the» group’s propor-
tion of the population shall not, in and of itself, constitute a violation
of this section.” H.R. Rep. 97-227, 97th Cong., 1st Sess. 48 (1981)
(emphasis added) [hereinafter cited .as House Report]. Although he
had sponsored the disclaimer, Representative Hyde later concluded
that it failed to achieve its purposes. See 1 Voting Rights Act:
Hearings on S. 53, et al. Before the Subcomm. on the Constitution
of the Senate Comm. on the Judiciary, 97th Cong, 2d SeSS. 407-408
(1982) (testimony of Rep. Hyde) [hereinafter cited as Senate
Hearings]; id. at 886-887 (letter from Rep. Hyde to Sen. Hatch).

1‘3 Senators Kennedy and Mathias (and more than 60 co-sponsors)
introduced'S. 1992, 97th Cong, lst Sess. (1981), which was identical
to HR. 3112. 127 Cong. Rec. 815694 (daily ed. Dec. 16, 1981).
Senator Grassley introduced S. 1975, 97th Cong, 1st Sess. (1981).
127 Cong. Rec. S15372 (daily ed. Dec. 15, 1981).

17 See, e.g., 1 Senate Hearings 199 (statement by Sen. Mathias) ;
id. at 256, 265 (testimony of Benjamin L. Hooks, Exec. Dir.,

10

upon the various so—called “objective” factors identified
in White V. Regester and pre-City of Mobile lower court
cases applying that standard. Critics of the results test
agreed, in essence, that a finding of unlawful vote dilu-
tion could and should be made on the strength of objec-
tive evidence, but were concerned with, among other
things, the potentially-limitless scope of the test.18 A
principal concern was the implication left by the dis-
claimer: given its limited terms—that numerical under-
representation of minorities would not amount “in and
of itself” to a Violation of Section 2—«opponents of the
results test maintained that proportional representation
would ineluctably follow simply from proof of some ad-
ditional factor identified in White or elsewhere.19 An-
other major criticism was that the House version lacked
a “core value” or an “ultimate or threshold criterion”
other than proportional representation for evaluating
vote dilution claims.20 Supporters of the results test re-
peatedly assured its critics that it was not a mandate for

NAACP) ; id. at 290-291 (testimony of Vilma Martinez, Pres,
MALDEF) ; id. at 813-819 (Prepared Statement of Armand
Derfner). Another criticism was that the intent test fostered racial
divisiveness by requiring a person to be branded as a racist before
a violation could be found. See id. at 1181 (Prepared Statement of
Arthur Fleming, Chairman, U.S. Comm’n on Civil Rights).

18 A complete discussion of the objections to the results test is
contained in the Subcommittee’s Report. See S. Rep. 97-417, 97th
Cong, 2d Sess. 108-111, 127-158, 169—173 (1982) [hereinafter cited
as Senate Report] (Voting Rights Act: Report/of the Subcomm. on
the Constitution of the Senate Judiciary Comm.) [hereinafter cited
as Subcomm. Report]; see also Boyd & Markman 1396-1406 (dis-
cussing Subcommittee’s objections).

19 See, e.g., 1 Senate Hearings 516 (statement of Sen. Hatch) ; id.
at 229-231 (testimony of Prof. Walter Berns) ; id. at 407-408 (testi-
mony of Rep. Hyde) ; id. at 424-432 (testimony of Prof. Barry R.
Gross); id. at 655 (testimony of Prof. John Bunzel); id. at 1438
(testimony of Prof. Irving Younger). See generally Subcomm.
Report 142-146.

20 Subcomm. Report 137.

11

proportional representation,21 that it was merely a means
of ensuring that minorities were not effectively “shut
out” of the electoral process,22 and that, given the heavy
burden the test placed on a plaintiff—one supporter de-
scribed it as “incredibly difficult” 23——-the test would in-
validate only those electoral practices that denied mi-
norities an equal opportunity to participate in the politi-
cal process. 24 As Armand Derfner, head of the Voting
Rights Project, put it, the “goal” of amended Section 2
“is to create an opportunity—nothing more than an
opportunity—etc participate in the political sys . .” 1
Senate Hearings 821 (Prepared Statement) .25 Nonethe—

21 See, e.g., 1 Senate Hearings 200 (Prepared Statement of Sen.
Kennedy) (“The courts have made clear that under the standard in
our bill there is no right to a quota or to proportional representation,
even in the context of at large elections”) ; id. at 243 (Benjamin L.
Hooks, Exec. Dir., NAACP) ; id. at 283, 287 (Memorandum of Ralph
G. Neas, Exec. Dir., Leadership Conf. on Civil Rights); id. at 796
(testimony of Armand Derfner, Voting Rights Project).

22 As Armand Derfner, head of the Voting Rights Project, put it,
“[t] he precise proof might vary, but the essential element of proving
that the racial minority was ‘shut out,’ i.e., denied accesswnot simply
to winning oflices but to the opportunity to participate in the elec—
toral system—was always required [under pre-City of Mobile
cases].” 1 Senate Hearings 810 (Prepared Statement); see also,
e.g., id. at 223 (Prepared Statement of Sen. Kennedy); id. at 626
(testimony of David Walbert).

23 1 Senate Hearings 368 (testimony of Laughlin McDonald,
Southern Regional Dir., ACLU).

24 See, e.g., 1 Senate Hearings 201 (testimony of Sen. Mathias);
id. at 223 (Prepared Statement of Sen. Kennedy) (“effectively shut
out of a fair opportunity [to] participate in the election”); id. at
810, 819-820 (Prepared Statement of Armand Derfner) .

25 Other supporters of the results standard made the same point.
See, e.g., 1 Senate Hearings 305 (Prepared Statement of Vilma S.
Martinez, President, MALDEF) (“The issue then, is not propor-
tional representation, but equal access to the political process”);
id. at 372 (Laughlin McDonald, Southern Regional Dir., ACLU)
(“What those [pre-City of Mobile] cases do is establish equality of
access”). See also id. at 223 (Prepared Statement of Sen. Kennedy) ;
id. at 275-276 (Prepared Statement of Benjamin L. Hooks, Pres.
NAACP); id. at 283, 286-287 (Memorandum from Ralph G. Neas,

12:
less, the Constitution Subcommittee rejected the House
effects test in favor of the City of Mobile standard. 2
Senate Hearings 10.

c. To break the deadlock, Senator Dole, with the back-
ing of the President, offered a compromise version of
Section 2 that responded to criticisms of the effects test
by introducing “additional language” incorporated from
White V. Regester “delineating what legal standard
should apply under the results .tes ” and “clarifying that
[this test] is not a mandate for proportional representa-
tion.” 2 Senate Hearings 60 (statement of Sen. Dole);
id. at 58-59. The most significant feature of the com—
promise was to modify and expand the language of the
House-passed bill to ensure that “equal opportunity,” not
“proportional results,” would be the legal test. Senate
Report 193-194 (Additional Views of Sen. Dole); id. at
199 (Supplemental Views of Sen. Grassley). As Senator
Dole pu-t it, because his version of amended Section. 2
“focus [es] on access to the process, not election, results”
(2 Senate Hearings 61-62), the question to be answered
is “not whether [minorities] have achieved proportional
election results,” but “whether members of a protected
class enjoy equal access. I think that is the thrust of
our compromise: equal access, whether it is open; equal
access to the pol‘itial process” (id. at 60; see also 2 Sen-
ate Hearings 46 (Sen. Leahy) (“[i]'t is the opportunity
to participate, not the actual use of that right, which is
crucial * * *”) ). The Committee adopted Senator Dole’s
compromise (id. at 86), as did the entire Senate (128
Cong. Rec. S7139 (daily ed. June 18, 1982) ). Although
the Senate bill differed from the House version, the
House dispensed with a conference and adopted the Sen-
ate bill (id. at H3846 (daily ed. June 23, 1982) )3“

 

Exec. Dir., Leadership Conf. on Civil Rights) ; id. at 305 (Prepared
Statement of Vilma S. Martinez, Pres, MALDEF); id. at 706
(Memorandum from Frank R. Parker, Lawyers’ Comm. for Civil
Rights Under Law).

2'6 There was little debate in the House, and, with one exception,
no one disagreed with the thrust of Senator Dole’s position that

13

2. The legislative history thus reveals that the com-
promise encompassed three key areas of consensus. First,
there was widespread agreement that direct evidence of
intent to discriminate should not be necessary to estab—
lish a violation under Section 2. House Report 29; Sen-
ate Report 193 (Additional Views of Sen. Dole). Sec-
ond, during the course of the debate, a consensus—Sena-
tor Dole described it as “a unanimous consensus”—
developed against permitting Section 2' claims to be based
upon the inability of a group to achieve representation
in proportion to its population within the jurisdiction.27
Rather, members of Congress who favored 28 or opposed 2"
the original results test and the compromise version of
amended Section 2, as well as private supporters of the
bill,3‘0 agreed that proof of minority underrepresentation

“equal access” and an “equal opportunity to participate” was the
standard for amended Section 2. See 128 Cong. Rec. H3840-H3841
(daily ed. June 23, 1982) (Rep. Edwards); id. at H3841 (Rep.
Sensenbrenner); id. at H3842 (Rep. Hyde); id. at H3846 (Rep.
Butler). But see id. at H3844 (Rep. Lungren) (describing stand—
ard in terms of intent).

2" Senate Report 193 (Additional Views of Sen. Dole); Senate
Report 33; House Report 30; 128 Cong. Rec. S6647 (daily ed.
June 10, 1982) (Sen. Grassley); id. at S6920 (daily ed. June 17,
1982) (Sen. Hatch); id. at S6961 (Sen. Dole); 18 Weekly Comp.
Pres. Dec. 846 (June 29, 1982) (President’s signing statement).

28 As Senator Kennedy explained his version: “Section 2, as
amended would not make mere failure of minorities to win propor-
tional representation a violation, even if that came as the result of
at large elections. Plaintiffs would have to prove additional factors
establishing that, in the total circumstances minority voters not
only failed ‘to Win’ but were effectively shut out of a fair opportu-
nity [to] participate in the election.” 1 Senate Hearings 223
(emphasis in original) (Prepared Statement).

29 See Subcomm. Report 139-147.

30 Benjamin Hooks, Executive Director of the NAACP, made this
point during the Senate hearings: “I would say that—and let me be
very frank—simply proven results would not be enough to trigger
the mechanism of Section 2. It would only trigger it if the results
were caused by some practice. Results simply trigger looking at the

14 s

was a necessary but not a sufficient element of a success-
ful vote dilution claim, as the Court’s decision in White
and Whitcomb had held?1 Third, both sides in the con-
troversy agreed that the concepts of unconstitutional
vote dilution developed by this Court in White and Whit-
comb and as applied by the lower courts prior to City
of Mobile 3'2 should govern amended Section 2 cases.33
Amended Section 2, as the text itself makes'clear, thus
focuses not on guaranteeing election results, but instead
on securing to every citizen the right to an equal “oppor-
tunity * * * to participate in the political process * * *”
(42 U.S.C. 1973). As Senator Dole, whose views, as

practices; that is all.” 1 Senate Hearings 267; see also, e.g., id. at
283 (Memorandum of Ralph G. Neas, Exec. Dir., Leadership Conf.
on Civil Rights); id. at 420 (Laughlin McDonald, Southern Re~
gional Dir., ACLU) (“I do not know of a single case * * * that
says the mere absence of blacks from office is ever enough to violate
either section 2 of the 14th or the 15th amendment. Not only are
there no cases that have ever said that, but every case says precisely
the opposite”) ; id. at 957 (Prof. Norman Dorsen) ; id. at 987 (Pre-
pared Statement of Joseph L. Rauh, Jr.) .

31 Because the Senate endorsed this principle as well as the
Court’s decisions in Whitcomb and White which had enunciated it,
the statement in the House report that the consistent defeat of
minority or minority-backed candidates in at at-large system itself
would establish a violation of amended section 2 (House Report
30-31) does not express Congress’ intent. See also page 17 note
39, infra.

32 See, e.g., Black Voters v. McDonough, 565 F.2d 1 (1st Cir.
1977); Hendrix v. Joseph, 559 F.2d 1265 (5th Cir. 1977); Dove v.
Moore, 539 F.2d 1152 (8th Cir. 1976); Zimmer V. McKeithen, 485
F.2d 1297 (5th Cir. 1973) (en banc), aff’d on. other grounds sub
nom. East Carroll Parish School Bd. v. Marshall, 424 US. 636
(1976); see also 1 Senate Hearings 1216-1226 (Appendix to Pre-
pared Statement of Frank R. Parker, Lawyers’ Comm. for Civil
Rights Under Law) (collecting cases). The Court discussed these
factors in Rogers v. Lodge, 458 US. 613, 619-620 n.8 (1982).

33 See House Report 30 & 11.104; Senate Report 27-30; id. at 104
n.24 fl 6 (Additional Views of Sen. Hatch) ; id. at 194 (Additional
Views of Sen. Dole) ; id. at 198 (Supplemental Views of Sen.
Grassley); 128 Cong. Rec. 86941 (daily ed. June 17, 1982) (Sen.
Mathias) ; id. at S6961 (Sen. Dole) ; id. at H3841 (daily ed. June 23,
1982) (Rep. Edwards).

15

principal sponsor of the compromise Section 2 that
passed the Congress, provide an authoritative guide to
the statute’s construction,34 stated in explanation of his
proposal, “[c]itizens of all races are entitled to have an
equal chance of electing candidates of their choice, but if
they are fairly afforded that opportunity, and lose, the
law should offer no redress.” Senate Report 193 (Addi—
tional Views of Sen. Dole). Senator Dole made the same
point during the floor debate on his compromise (128
Cong. Rec. S6961 (daily ed. June 17, 1982)) and added
that (ibid.) :
[T] he standard is whether or not the political proc-
esses are equally “open,” whether there is access,
Whether they are open in that members of a pro~
tected class have the same opportunity as others to
participate in the political process and to elect can—
didates of their choice.

In response to a question from Senator Thurmond
Whether “the focus on the section 2 standard [is] on
equal access to the political process or is * * * on
Whether a minority group has achieved equal election
results?” (id. at S6962), Senator Dole replied (ibid.):
The focus in section 2 is on equal access, as it
should be. I thank the Senator for directing the
question. I know of no one in this Chamber and I
heard no one anywhere else indicate that it should
be otherwise. It should be on access. Is the system
open to people in Kansas, South Carolina, North
Carolina, California, New York, wherever? Do they
have access and an opportunity to cast their vote?
It is not a right to elect someone of their race but

it is equal access and having their vote counted.

Amended Section 2, Senator Dole further explained,
would “[a]bsolutely not” provide any redress “if the

 

34 See, e.g., Grove City College v. Bell, No. 82-792 (Feb. 28, 1984),
slip op. 11; North Haven Bd. of Educ. v. Bell, 456 US. 512, 527
(1982). This is particularly true given Senator Dole’s pivotal role
in the adoption of amended Section 2 and the absence of a confer-
ence report on the Act. See North Haven, 456 US. at 527.

16

process is open, if there is equal access, if there are no
barriers, direct or indirect, thrown up to keep someone
from voting or having their vote counted, or register—
ing, whatever the process may include” (ibid.). In his
view, so long as “[t]he political process leading to nom-
ination or election [is] * * * equally open to participa-
tion by members of a class of citizens without regard
to race, color, or language minority” there could not
be “a denial or abridgement of the right to vote under
the amendment” (128 Cong. Rec. S7120 (daily ed. June
18, 1982) (colloquy between Sen. Dole and Sen. Gorton) ;
see also id. at S7119 (Sen. Dole)); cf. Whitcomb V.
Chavis, 403 US. at 153.

Supporters of amended Section 2 in the Senate echoed
Senator Dole’s understanding of his compromise amend—
ment to Section 2. They repeatedly emphasized that the
provision guaranteed “equal access”3'5 or “an equal op-
portunity to participate,” 3'6 but that it did not apply
where minority voters or candidates “failed to partici-
pate given an equal opportunity” 3” to do so.3H3 These
statements demonstrate that the supporters of Senator
Dole’s compromise version of amended Section 2 shared
his construction of its terms. Accordingly, the central
issue under amended Section 2, as all participants in

35 E'.g., 128 Cong. Rec. S6655 (daily ed. June 10, 1982) (Sen.
Boren)); accord, id. at S6500 (daily ed. June 9, 1982) (Sen.
Stevens) (“the issue to be decided under the results test is Whether
the political processes are equally open to minority voters”).

3“ 128 Cong. Rec. S6560 (daily ed. June 9, 1982) (Sen. Kennedy) ;
id. at S6557 (Sen. Stevens).

37 E'.g., id. at S6779 (daily ed. June 15, 1982) (Sen. Specter).

‘38 Accord, e.g., id. at S6647 (daily ed. June 10, 1982) (Sen.
Grassley); id. at S6717 (daily ed. June 14, 1982) (Sen. Tower);
id. at S6717-S6718 (daily ed. June 17, 1982) (Sen. Moynihan );
id. at S6964 (Sen. Kennedy) ; ibid. (Sen. Heflin) ; id. at S7110 (daily
ed. June 18, 1982) (Sen. Metzenbaum) ; id. at S7118 (Sen. Sasser) ;
id. at S7138 (Sen. Robert Byrd). As Senator Robert Byrd put it,
“[tJhe law seeks to protect the right to vote, not the ability to be
guaranteed election.” Ibid.

17

the Senate floor debate agreed, is whether a challenged
electoral practice “resu1t[s] in the denial of equal access
to any phase of the electoral process for minority group
members” (Senate Report 30 (emphasis added)).39

3. The foregoing discussion makes clear that appel-
lees err in claiming that district court’s finding that the
multimember district plan dilutes black votes is subject
to Fed. R. Civ. P. 52(a). Mot. to Dis. 21, 35—36. Like
proximate cause in the law of to-rts, the term “results”
requires an evaluation of the facts in light of the pur-

39 The legislative background to amended Section 2 also makes
this point clear in another way. Under amended Section 5 of the
Act, jurisdictions with a history of discrimination touching upon
voting may not obtain approval to enforce changes in their election
laws that have the effect of causing a retrogression in the position
of minorities with respect to their exercise of the franchise. City of
Lockhart V. United States, 460 U.S. 125, 133-136 (1983); Beer v.
United States, 425 U.S. 130, 137 (1976). The legislative history of
amended Section 2, however, conclusively shows that the Section 5
retrogression standard was not incorporated into Section 2. Senate
Report 68; id. at 104 n.24 fl 8 (Supplemental Views of Sen. Hatch) ;
128 Cong. Rec. H3841 (daily ed. June 23, 1982) (remarks of Rep.
Sensenbrenner with Rep. Edwards concurring) ; id. at S7095 (daily
ed. June 18, 1982) (Sen. Kennedy) ; id. at S6930 (daily ed. June 17,
1982) (Sen. DeConcini); 2 Senate Hearings 80 (Statement of Sen.
Dole); 1 Senate Hearings 414 (testimony of Laughlin McDonald,
Southern Regional Dir., ACLU); id. at 449 (testimony of Mayor
Henry L. Marsh) ; id. at 801 (testimony of Armand Derfner) ; id. at
891-892 (colloquy between Rep. Sensenbrenner and Sen. Grassley) ;
id. at 1254 (colloquy between Subcomm. Counsel Markman and
Julius L. Chambers, Pres, NAACP Legal Defense Fund); id. at
1575-1576 (Prepared Statement of Nathan Z. Dershowitz, Amer.
Jewish Congress). The Senate report expressly states that “[p.]lain-
tiffs could not establish a Section 2 violation merely by showing that
a challenged reapportionment * * * involved a retrogressive effect
on the political strength of a minority group” (Senate Report 68
n.224) . In other words, While a retrogressive effect may be relevant
evidence, access, not effect, is the touchstone of a Section 2 inquiry.

While some courts have said that retrogression alone may violate
amended Section 2, those courts have failed to consider the above
legislative history. See Ketchum V. Byrne, 740 F.2d 1398, 1407 (7th
Cir. 1984) , cert. denied, No. 84-627 (June 3, 1985)»; Buskey V. Oliver,
565 F. Supp. 1473, 1482 (MD. Ala. 1983).

18

poses of the policy being served. Cf. Metropolitan Edison
Co. V. PANE, 460 U.S. 766, 774 (1983) (construing
terms “ ‘environmental effect’ ” and “ ‘environmental
impact’ ” in light of “the congressional concerns that led-
to the enactment of NEPA”). The question under
amended Section 2—whether a particular electoral prac-
tice “results” in the denial of “equal access” to the polit-
ical process—thus calls for more than a factual conclu-
sion not only because Congress eschewed reliance upon
a “mechanical ‘point counting’ device” to resolve Section
2 claims (Senate Report 29 n.118; see 128 Cong. Rec.
S6648 (daily ed. June 17, 1982) (Sen. Grassley)); but
also because the undertaking requires a careful anal-
ysis of the challenged electoral process, as informed by
its actual operation, including the nonquantifiable, but
undeniable, fact that a numerical minority may exercise
substantial, and sometimes decisive, influence upon the
process. See Whitcomb, 403 U.S. at 149-1554"0 The Court
has recognized in a variety of other situations that a con-
clusion based largely upon the application of a rule of
law to a. particular set of facts is a legal, no-t a factual
conclusion}1 In addition, for plaintiffs as well as de-

40 See, e.g., Whitcomb, 403 U.S. at 150 (footnote omitted) (where
“ghetto votes were critical to Democratic Party success * * * it
seems unlikely that the Democratic Party could afford to overlook
the ghetto in slating its candidates”) ; Dove v. Moore, 533 F.2d at
1153, 1155 n.4 (noting that local voters “have a strong affinity for
incumbents” and that each candidate’s 40% black constituency
“cannot be ignored with impunity”). See also Seamon v. Upham, No.
P-81-49-CA (E.D. Tex. Jan. 30, 1984), aff’d sub nom. Strake V.
Seamon, No. 83-1823 (Oct. 1, 1984); page 22 note 46, infra.

4‘ Compare, e.g., Harper & Row, Publishers, Inc. v. Nation Enter-
prises, No. 83-1632 (May 20, 1985), slip op. 20, and Strickland v.
Washington, No. 821554 (May 14, 1984), slip 0p. 27-28, with Wain-
wright V. Witt, No. 83-1427 (Jan. 21, 1985), slip op. 15—17, and
Patton V. Yount, No. 83-95 (June 26, 1984), slip op. 11-13 &
n.12. See generally Bose Corp. v. Consumers Union of United
States, Inc., No. 82-1246 (Apr. 30, 1984). In this reSpect, the in-
quiry under amended Section 2 is similar to the type of analysis
that appellate courts follow in determining whether a particular '
adjudicative procedure is consistent with due process (e.g., Walters

19

fendants “the stakes—in terms of impact on future
cases and future conduct—are too great to entrust them
finally to the judgment of the trier of fact” (Bose Gary.
V. Consumers Union of United States, Ina, No. 82-1246
(Apr. 30, 1984), slip op. 15 n.17; see id. at 15—25). Were
the ultimate issue under amended Section 2 simply a
question of fact, plaintiffs would be disabled from effec-
tively challenging decisions where, on an essentially
standardless basis, the court determined that the “totality
of the circumstances” did not support their case. Ac-
cordingly, because is it clear that an appellate court
must independently resolve mixed questions of fact and
law (Bose Corp, slip op. 15), this Court is not bound by
Rule 52(a) in determining whether the multi-member
districts in the 1982 reapportionment plan violates Sec—
tion 2.42

B. The District Court Misapplied The Factors Appropri-
ate To An Analysis Of Appellees’ Claim 0f Unlawful

Vote Dilution
In voiding the use of multi-member districts in the
1982 reapportionment plan, the district court made two
fundamental errors in construing and applying amended
Section 2, either of which is sufficient to require reversal.
First, the court found a violation of the statute in the

v. National Ass’n of Radiation Survivors, No. 84—571 (June 28,
1985)) and whether a state law violates the First Amendment
Establishment Clause (e.g., Grand Rapids School Dist. v. Ball, No.
83-990 (July 1, 1985)).

42 The decisions of this Court and the lower courts both before
City of Mobile and after passage of amended Section 2 also make
this point clear. These decisions have engaged in a far more
searching review of a district court’s analysis than application
of Rule 52 (a), Which appellees advocate here, would permit. See,
e.g., Whitcomb v. Chavis, 403 U.S. at 144-155; Jones v. City of
Lubbock, 727 F.2d 364, 383-386 (5th Cir. 1984); Hendrix, 559 F.2d
at 1268-1271; David v. Garrison, 553 F.2d 923, 929-931 (5th Cir.
1977) ; Bradas v. Rapides Parish Police Jury, 508 F.2d 1109, 1112—
1113 (5th Cir. 1975). The court in Velasquez v. City of Abilene,
725 F.2d 1017, 1021 (5th Cir. 1984), thus erred in stating that an
ultimate Section 2 finding is a que-stion of fact. The court was
mistaken as to the central question to be answered under the
statute. Pages 14—17, supra.

20

absence of evidence that the “results” of the multi-
member legislative districts challenged here denied mi-
nority voters an equal opportunity to participate in the
electoral process. (Second, the court adopted an erroneous
definition of racially polarized voting, one that miscon-
ceives the proper force of that criterion as an element of
a successful Section 2 claim.

1. a. Each of the districts is a multimember district.
However, it is firmly settled that multimember districts
are not inherently unlawful. Senate Report 33; White,
412 U.S. at 765; Whitcomb V. Chavis, supra; see also 2
Senate Hearings 81 (statement of Sen. Dole). While it
is true that in each of the districts at issue here it would
be possible to create one or more single-member districts
with effective black voting majorities (see page-s 3-6,
supra), this point cannot be dispositive. Minority voters
have no right to the creation of safe electoral districts
merely because they could fe-asibly be drawn. Whitcomb
V. Chavis established that principle prior to the 1982
amendment to Section 2, and the Court’s recent summary
aflirmances in Brooks V. Allain, No. 83—1865 (Nov. 13,
1984) , and Strake V. Seaman, No. 83-1823 (Oct. 1, 1984),
have reaffirmed that principle under amended Section 2.43

4=3In Seaman, the district court rejected a Section 2 claim that
minority voters were entitled to a “ ‘safe’ district in which the
minority population approaches 65% of the overall population”
(No. P—81-49-CA (E.D. Tex. Jan. 30, 1984), slip op. 11—12). Under
the challenged plan, minority voters, while not guaranteed the
ability to elect one a representative of their choice, were found to
“exert a significant impact” and to “play pivotal roles in key elec-
tions” in two high minority impact districts (id. at 15). Similarly,
in Brooks, the plaintiffs urged the three-judge district court to
create a congressional district with a 64% black population mini-
mum on the ground that, because of low voter registration and
turnout among blacks, they would be unable to elect candidates of
their choice with a lesser percentage. In rejecting the super-
majority plans proposed by the plaintifis, the court noted that
“[a]mended § 2 *I * * does not guarantee or insure desired results,
and it goes no further than to afford black citizens an equal oppor-
tunity to participate in the political process” (No. GCBZ-SO-WK—Ol
(N.D.'Miss. Apr. 16, 1984), slip op 15). This Court’s summary
aflirmances in Seaman and Brooks establish that minorities do not

21

Nor can it‘ be presumed without more that “safe” seats
for minority o-Jficeholders would necessarily be in the in-
terests of minority voters. See United States V. Board of
Supervisors, 571 F.2d 951, 956 (5th Cir. 1978). Ac-
cordingly, if the “gravamen” of appell-ees’ claim is simply
that North Carolina chose to use multimember districts
where “there are sufficient concentrations of black voters
to form majority black single-member district5” (J .KS.
App. 4a), their claim necessarily falls short of establish-
ing a violation.44

b. Moreover, in three of the challenged districts, black
candidates supported by the black community have been
elected under the challenged plan in numbers as great as
or greater than would be expected under a single-member
plan, and black voters have wielded influence over other

have a right under Section 2 to the creation of “safe” minority-
controlled districts, even where other objective factors contribute
to the finding of a violation of Section 2 under the “totality of the
circumstances.” Moreover, as we explained in our brief (at 8-19)
in City Council V. Ketchum, cert. denied, No. 84-627 (June 3, 1985)
(a copy of which has been served upon the parties), creation of
super-majority districts as a matter of law is inappropriate to
remedy a Section 2 violation.

44The district court correctly recognized that a lawful state
policy regarding a particular electoral practice is entitled to weight
(Whitcomb, 403 U.S. at 149; see Upham v. Seaman, 456 U.S.
37 (1982)), but erred by disregarding the North Carolina policy
against splitting legislative districts (J.S. App. 49a—50a). The
court acknowledged that “the state adduced fairly persuasive evi—
dence that the ‘whole-county’ policy was well-established historically,
had legitimate functional purposes, and was in its origins com-
pletely without racial foundation” (id. at 50a). But the court held
that “that all became irrelevant as matters developed in this par-
ticular legislative plan” (ibid.) because the legislature chose to
split counties “only when necessary to meet population deviation
requirements or to obtain §5 preclearance” (ibid. (emphasis
added)). That reasoning is plainly in error. The fact that the
state adhered to its policy except Where necessary to ensure that
each voter~black and white—had his vote counted equally and to
ensure that the reapportionment plan did not cause a retrogression
in the political strength of black voters (see page 17 note 39, supra)
surely counts in the state’s favor.

22

seats as well. Even since 1973, black voters in House
District 23, who make up 36.3% of the population and
28.6% of the registered voters, have elected a black mem-
ber of the three-person delegation. Page 4, supra}5 In
House District 21, the 21.8% black minority, constitut-
ing 15.1% of the registered voters, elected a. black repre-
sentative to its six-member delegation in 1980 under a
substantially-identical predecessor to the challenged plan
(J.S. App. 19a) and reelected him in 1982 under the
challenged plan. Pages 3-4, supra. The district court’s
error is even clearer in House District 39. In that dis-
trict, where 25.1;% of the population is black and 20.8%
of the registered voters are black, a black candidate was
elected to the five-member delegation in 1974 and re—
elected in 1976. In 1982, under the challenged plan, two
black representatives, or 40% of the delegation, were
elected. Page 5, supra. By contrast, under the alter-
natiVe plan favored by appellees, in each of these dis-
tricts black voters would be relegated to one single-
member district with a large black majority. The ability
of black voters to contest the remaining seats would be
lessened—indeed, in House District 39 minority voters
could have a reduced number of delegates—and (more im-
portantly) their electoral influence on the other repre—
sentatives would be reduced.46 Accordingly, judged simply
on the basis of recent electoral “results,” the multimember

‘5 The population percentages in the five counties may overesti-
mate the actual voting strength of minorities, because the per-
centage voting age population in these districts may be less than
the population percentage. See page 3 note 5, supra.

46As Prof. Archibald Cox informed the Senate Subcommittee,
“[v]oters in a minority group may have exactly the same oppor-
tunities for participation as other voters, even though no members
of the group are elected to oflice. The minority may not vote as
a bloc. The minority may vote as a bloc but make its influence
felt in the selection of non-minority candidates for election, in
framing their programs and policies, and in support of one or
more candiates against their opponents.” 1 Senate Hearings 1428'
(Prepared Statement). Indeed, in the 1982 primaries in House
Districts 23 and 36, whites did not field a candidate for each of the

23

plans in these districts have apparently enhanced—mot
diluted—minority voting strength.

In the remaining districts—House District 36 and
Senate District 22—black candidates have been less suc-
cessful. Even there, however, the 26.5% black minority
in the House district, constituting 18% of the registered
voters, elected a black member to the eight-member dele-
gation in 1982, and a second black candidate (who lost
in the general election) received 39% of the white vote
in' the primary. Pages 4-5, supra. In Senate District 22,
although the 24.3% black minority, constituting 16.8%
of the registered voters, has not been able to elect a black
Senator in the 1980s, a black candidate prevailed through-
out the period 1975-1980. Pages 5-6, supra.“7

open positions. Pages 4-5 notes 7-8, supra. That fact reinforces
the conclusion that blacks have not been denied equal access to
the electoral process in these districts by virtue of the multi-member
plan, because the make up of the candidate slate is itself a reflection
of and a response to the voting strength of the various constituencies
in a district.

4" Appellees seek to minimize the significance of this electoral
success on the ground (Mot. to Dis. 26-27) that the 1982 election
year was “obviously aberrational"—attributing this conclusion
to the district court. However, the district court’s words have been
taken out of context. The court’s finding (J.S. App. 37a (footnote
omitted)) was as follows:

There are intimations from recent history, particularly from
the 1982 elections, that a more substantial breakthrough of
success could be imminent—but there were enough obviously
aberrational aspects present in the most recent elections to
make that a matter of sheer speculation.

In a footnote, the court observed that both parties had offered
evidence to establish either that the 1982 elections presaged a
“breakthrough” or that they were “aberrational.” The court stated
that its “finding” in text (quoted above) “reflects our weighing
of these conflicting inferences” (id. at 37a n.27). It is thus inac-
curate for appellees to assert that the district court adopted their
view that the 1982 elections should be disregarded as “aberrational.”
In fact, the most that can be said is that the court rejected the
opposing view—that the 1982 election results should be deemed
evidence that black candidates would achieve even greater success
in\ the “imminent” future.

a

24

This experience cannot be reconciled with the district
court’s holding that the challenged plan results in, vote
dilution.48 Indeed, the district court never articulated a
standard under which “results” such as these could sup-
port a conclusion that the multi-member electoral system
in these districts—which is the procedure under challenge
—is “not equally open to participation” by black voters.
The court only stated—without reference to actual results
in any of the challenged districts-that “the success that
has been achieved by black candidates to date” is “too
minimal in total number and too recent” to support a
finding that a black candidate’s race is no longer “a.
significant adverse factor” (J.S. App. 3’7a.--38a).49 How-

“ It is inappropriate to conclude, as some courts have done, that
the state must prove that the existence of past discrimination has
not reduced the current potential electoral success of black candi—
dates. McMillan v. Escambia County, 748 F.2d 1037, 1045 (5th Cir.
1984). That approach misconstrues the governing legal standard,
improperly shifts the burden of proof, and requires proven and con-
tinued minority electoral success to avoid Section 2 liability. Neither
Congress nor Senator Dole had any such requirement in mind.
Pages 12-17, supra, and pages 27-28, infra.

49 Appellees claim (Mot. to Dis. 27, 41; Supp. Br. 10 & n.9) that
the district court’s disparagement of black electoral success in the
challenged districts is supported by language in the Senate ma-
jority report, a document which, we have argued, cannot be taken
as determinative on all counts. In any event, the report simply
notes (Senate Report 29 n.115) that the election of a “few” minority
candidates should not be deemed conclusive because it would enable
election officials to evade amended Section 2 by engineering the
election of “a ‘safe’ minority candidate.” The case cited by the
report to illustrate this caveat, Zimmer, arose in a context “where
the multi-member system was devised, despite historic policy and a
state statute forbidding it, in reaction to a dramatic voter regis—
tration drive directed at blacks, who, although comprising 58 per
cent of the parish’s population, had not been permitted to vote
until 1962” (Black Voters, 565 F.2d at 4). Given these circum-
stances, an “abrupt change in policy—which coincided with in-
creased black voter registration” (Wallace, 515 F.2d at 631),
Zimmer declined to treat recent black electoral success as dis:
positive.

Appellees have failed to prove that black electoral success in these
districts is attributable to 11th hour efforts by the General As-

25

ever, the election of representatives in numbers as great
as or greater than the approximate black proportion of
the population, as in House Districts 21, 23, and 39, is
surely not “minimal.” And in House District 36 and
Sen-ate District 22, while the results admittedly fall short
of a standard of “proportional representation”—which
Congress rejected as the governing legal criterion—mi-
nority candidates either are or have been successful and
plainly are competitive.50 In fact, the district court itself
concluded that “[t]hirty~five years after the first success-
ful candidacies for public office by black citizens. in this
century, it has now become possible for black citizens to
be elected to oflice at all levels of state government in
North Carolina” (J.S. App. 37a).

The district court also erred by discounting the proven
minority electoral success on the ground that it was “too
recent in relation to the long history of complete denial
of any elective opportunities” to support the conclusion

sembly to engineer the election of “safe” minority candidates to
thwart a Section 2 claim. Indeed, the district court made no men—
tion of any evidence that would tend to support such a claim. More—
over, the district court noted that “in recent years there has been
a measurable increase in the ability and willingness of black citi-
zens to participate in the state’s political processes and in its
government at state and local levels” (J .8. App. 473.). The district
court discounted this increased participation because of its finding
of racial polarization (ibid.), but that finding is flawed in several
respects (see pages 28-33, infra).

5° The court’s reasoning is also flawed in another respect. Al—
though the district court made- factual findings on a district-by-
district basis, it drew its ultimate legal inferences regarding racial
bloc voting and the effect on minority electoral opportunities on the
basis of “[t]he overall results achieved to date at all levels of
elective office” (J .8. App. 37a). It is only on such a basis that the
court could have held that black electoral success is “minimal” in a
district such as House District 39, where the 25.1% black minority
has, with substantial white support, elected 40% of the at—large
representatives. To invalidate a specific district on the basis of
generalized statewide results at “all levels of elective office" is a
clear legal error. See White V. Regester, 412 U.S. at 769 (requiring
an “intensely local appraisa ” of the electoral scheme).

26

that “a black candidate’s race is no longer a significant
adverse factor” (J .8. App. 37a—38a). That ruling is over-
broad. To the extent that the court held that past dis-
crimination cannot be overcome by providing minorities
with contemporary access to the process, that ruling is in
error. The lower court decisions prior to City of Mobile
repeatedly emphasized that the key question is not
whether there was past discrimination but whether that
discrimination prevents minorities from currently par—
ticipating in the political process. See, e.g., Hendrix,
559 F.2d at 1270; David, 553 F.2d at 930; Bradas, 508
F.2d at 1112; Zimmer, 485 F.2d at 1306; accord, Mc—
Carty V. Henderson, 749 F.2d 1134, 1137 (5th Cir.
1984)."51 Historical discrimination that has resulted in
a current lower minority registration rate, for instance,
as the district court found to be the case here (J .8.
App. 22a~26a & n.22) , is an entirely appropriate con—
Sideration under amended Section 2.5“2 But past dis-
crimination that does not deny minorities current access
to the political process cannot support a violation of the
Act.53 And to the extent that the district court held that

51 As Senator Heflin stated, “[t]-he Dole compromise has a now
application but allows for a consideration of yesterday factors
as well as present day good faith efforts to remedy past mistakes
if the yesterday factors touch on the new result.” 128 Cong. Rec.
$6964 (daily ed. June 17, 1982).

l 52 This history may have had an efl’ect in House District 36 and
Senate District 22, given the electoral results in those districts;
but, viewed in combination with other factors, it appears not to have
shut blacks out of the electoral process there (see pages 32-34, infra).
Given the fact that minorities have been elected to office in House
Districts 21, 23, and 39 in numbers at least as great as would be
expected under a single-member system, the historical discrimina—
tion found by the district court does not appear to have affected
the electoral opportunities that black voters enjoy in those districts.

53 The district court thus plainly erred by relying (J .8. App.
29a) upon inoperative numbered seat and anti-single shot voting
requirements of state law. As the court itself noted (id. at 23a-24a),
those requirements were invalidated more than a decade ago
(Dunstan v. Scott, 336 F. Supp. 206 (E.D.N.C. 1972)), and there
is no basis in amended Section 2 (or logic) for concluding that these

27'

past discrimination persists in the form of racial bloc
voting, the court relied upon an erroneous definition of
that concept, as we will later explain.

Congress could not have expressed more clearly its in-
tention not to invalidate multimember districting plans
where minorities have had an equal opportunity to par-
ticipate in the electoral process, even if minority candi-
dates did not win a proportionate share of the seats.54
Congress adopted Senator Dole’s compromise precisely to
ensure that Section 2 would guarantee minority voters
access to the electoral process—not ensure victories for
minority candidates—as the Senate floor debate plainly
demonstrates. Pages 15-17, supra. See also Rogers, 458
U.S. at 616; Whitcomb, 403 U.S. at 158-159 (multi-
member districts challenged for “their winner-takeall
aspec ”).55 The pro-City of Mobile decisions of this and
other courts bear out that multimember districts are not
unlawful where, as here, minority candidates are not
effectively shut out of the electoral process. The closest

now-repealed legal measures could have any current effect on the
multimember system. See pages 12—17, supra (discussing Sen. Dole’s
compromise) .

54 The district court plainly misconstrued the significance of
Congress’ rejection of the proportional representation standard.
The court dismissed the “proportional representation” diselaimer
in Section 2(b), 42 U.S.C. 1973 (b), as meaning no more than that
the fact that blacks have not been elected in numbers proportional
to their percentage of the population “does not alone establish that
vote dilution has resulted” (J .8. App. 15a & n.13 (emphasis added) ).
As discussed above (pages 9—17), the disclaimer was expressly
drafted to avoid any such narrow interpretation. In effect, the
district court has interpreted the Act as imposing a “proportional
representation plus” standard, rather than an “equal opportunity”
standard, as Congress intended.

55 As Armand Derfner explained to the Senate Subcommittee ‘(1
Senate Hearings 803): “the at-large elections that I * * * have
been focusing on are those in which the result of those at-large
elections is basically to shut out the minority voters. It is not a
question of whether they will get more or less or whether the ma-
jority voters will get more or less. It is a question of some versus
nothing.”

28

analogy to this case is Dove V. Moore, supra, in which
the court of appeals upheld the validity of an at-large
system under which the 40% black minority elected one
member to an eight—member city council. Indeed, in many
cases prior to City of Mobile involving at-large voting sys-
tems where the aggregate of factors was unquestionably
less favorable to minority voters than in this case—most
particularly, where no black citizen had ever been elected
under the system—challenges to the voting plans were
nonetheless held to be insuflicient. See, e.g., Black Voters
V. McDonough, supra; Hendrix V. Joseph, supra; David
V. Garrison, supra; McGill V. Gadsden County Comm’n,
535 F.2d 277 (5th Cir. 1976). And it is significant that
the Senate majority and other supporters of amended
Section 2 pointed to these cases—including Dove V. Moore
.—as indications of the way in which the new provision
would operate. See, e.g., Senate Report 33; 1 Senate
Hearings 795-796, 797 {testimony of Armand Derfner);
id. at 1701~1702 (colloquy between Sen. Mathias and
Assistant Attorney General Reynolds regarding Dove).
Accordingly, given the proven electoral success that black
candidates have had under the multimember system, the
district court erred by concluding that use of that system
“results” in a denial of “equal access” to the electoral
process for minorities.

2. The district court correctly held (J.S. App. 15a)
that proof of racial bloc voting is the “linchpin” of a
successful vote dilution claim. See Senate Report 33.56

56 As the Court explained in Whitcomb (403 U.S. at 153), where
“the failure of the ghetto to have legislative seats in proportion
to its population emerges more as a function of losing elections than
of built-in bias against poor Negroes * * * [t]he voting power of
ghetto residents may have been ‘cancelled out’ * * * but this seems
a mere euphemism for political defeat at the polls.” See also United
Jewish Orgs. V. Carey, 430 U.S. 144, 166 n.24 (1977) (plurality
opinion) (“if voting does not follow racial lines, the white [or
black] voter has little reason to complain that the percentage of
nonwhites [or whites] in his district has been increased”). 4

It is erroneous, however, to conclude that proof of racial bloc
voting atop numerical underrepresentation together are sufiicient

29

However, the district court adopted a definition of racial
bloc voting under which racial polarization is “substan-
tively significant” or “severe” whenever “the results of
the individual election would have been diiferent depend-
ing upon whether it had been held among only the white
voters or only the black voters in the election” (J .8. App.
39a—40a (footnote omitted) ). This means that even a
minor degree of racial bloc voting would be sufficient to
make out a violation, regardless of whether it actually
results in black electoral defeats. For instance, in a two-
person election where there is a small white voting ma-
jority, if the white candidate receives 51% of the vote in
the white community and 49% of the vote in the black
community, and the black candidate receives the reverse,
the district court would hold that the community is
severely racially polarized. That definition is unaccept-
able because “ ‘there will almost always be a raw correla-
tion with race in any failing candidacy of a minority
whose racial or ethnic group is [a] small percentage of
the total voting population’ ” (Lee County Branch of
NAACP v. City of Opelilca, 748 F.2d 1473, 1482 n.15
(11th Cir. 1984) (quoting Jones V. City of Lubbock, 730
F.2d 233, 234 (5th Cir. 1984) (Higginbotham, J., spe-
cially concurring)); see Terrazas V. Clements, 581 F.

to establish a violation of amended Section 2, as some courts have
said. See McMillan, 748 F.2d at 1043; United States V. Marengo
County Comm’n, 731 F.2d 1546, 1566 (11th Cir. 1984). Supporters
of the Act stated that proof of more than numerical underrepre4
sentation and racial bloc voting is essential to establish a Section
2 violation. See 1 Senate Hearings 819-820 (Prepared Statement
of Armand Derfner) (emphasis in original) (“amended section 2,
like White V. Regester, applies only in that small category of places
where there is no functioning system of politics for minority voters,
where there is already severe racial division, and where it is simply
impossible for minority voters to have any significant opportunity
under the election system as it is”) ; accord, e.g., id. at 287 (Memo~
randum of Ralph G. Neas, Exec. Dir., Leadership Conf. on Civil
Rights); id. at 564 (testimony of Joaquin G. Avila, Assoc. Gen.
Counsel, MALDEF) ; id. at 1184 (testimony of Frank Parker, Dir.,
Voting Rights Project, Lawyers’ Comm. for Civil Rights Under
Law).

30

Supp. 1329, 1351-1352 (N.D. Tex. 1984) (three-judge
court) (test is whether “such bloc voting as may exist”
operates so as to “persistently defeat [minority] candi-
dates”); accord, Sea/mon V. Upham, slip op. 10 n.4.57
Under the district court’s definition, virtually any elec-
toral district in the country might be deemed to suffer
“substantively significant” racial bloc voting. Congress
believed that the contrary was true, however. See Senate
Report 33 (in “most communities” minority candidates
“receive substantial support from white voters”) .‘58

57 In most vote dilution cases, a plaintiff can establish a prima
facie case of racial bloc voting by using a statistical analysis of
voting patterns that compares the race of a candidate with the
race of the voters. A defendant can then introduce. its own study,
which takes other factors into account, to rebut a plaintiff’s prima
facie case. For a discussion, in a different context, of the type of
statistical studies that can be used, see McCleskey, V. Zant, 580
F. Supp. 888, 352-379 (N.D. Ga. 1984), aff’d, 753 F.2d 877 (11th
Cir. 1985) (en banc). Resort to such analyses has been approved.
As Judges Higginbotham and Wisdom have cogently observed, “race
or national origin may mask a host of other explanatory variables”
including “explanatory factors * * * as intuitively obvious as cam-
paign expenditures, party identification, income, media use measured
by cost, religion, name, identification, or distance that a candidate
lived from a particular precinc ” (Jones, 730 F.2d at 235 (Higgin-
botham, J., specially concurring); Lee County, 748 F.2d at 1482
(Wisdom, J.)).

58 See 1 Senate Hearings 821 (emphasis added) (Prepared State-
ment of Armand Derfner) (“Section 2, of course, will apply only
in those places where there is already an extraordinary amount of
[racial] division”). Other witnesses also described racial bloc
vo-ting in less absolute terms than the district court. See id. at
306 (Prepared Statement of Vilma S. Martinez, President,
MALDEF) (emphasis added) (“ ‘It is a situation where, when
candidates of different races are running for the same office, the
voters will by and large vote for the candidate of their own race’ ”)
(citation omitted); id. at 543 (testimony of Prof. Susan A. Mac-
Manus (emphasis added) (“racial polarization * * * occurs when
citizens of one racial group uniformly vote for one candidate and
citizens of another racial group uniformly vote for another. * * *
[T]he basic purpose of the test [for calculating racial polarization]
is to determine whether race is the primary and exclusive deter-
minant of individual voting decisions across time in any given com-
munity”).

31

If white voters are willing to cross racial lines in suf—
ficient numbers that “minority candidates [do] not lose
elections solely because of their race” (Rogers, 458 U.S.
at 623), then it is largely irrelevant whether the black
candidate would have won even if the election “had been
held among only the white voters” (J .S. App. 40a). In
that case, racially polarized voting, to the extent that it
exists, is not “the overriding criterion in voting” (Dove,
539 F.2d at 1156). It was firmly settled prior to 1982
that no person had the right to be represented by mem-
bers of any particular group to which he belongs or to‘
participate in an electoral process that maximizes his
chances of success, either as a voter or a candidate.
Rather, the principle repeatedly endorsed was the right
to participate in an electoral process—to vote, first and
foremost, but also to join a political party, to participate
in its affairs, to become a candidate (Whitcomb, 403 U.S.
at 149-150)-——in which there is no “built-in bias” against
the opportunity to participate (id. at 153).59 Amended
Section 2 reaffirmed these principles. See Senate Report
23-24, 30. It thus follows that where “blacks and whites
alike have rejected race as the overriding criterion in
voting” (Dove, 539 F.2d at 1155-1156), then, since no
such “built—in bias” exists, “minority candidates [will]
not lose elections solely because of their race” (Rogers,
458 U.S. at 628), and the political process is, by defini-
tion, “equally open to participation” by minorities (White,
412 U.S. at 766; see Whitcomb, 403 U.S. at 153). In
other words, the relevant inquiry is not simply into the
existence of bloc voting by race; the court must assess
the efiect of racial polarization on the opportunity for
blacks to participate in the political process. Only where
the impact of racial bloc voting in combination with the

 

59 See City of Mobile, 446 U.S. at 75-80 (plurality opinion);
id. at 86 (Stevens, J ., concurring in the judgment); id. at 111 n.7
(Marshall, J., dissenting); United Jewish 0rgs., 430 U.S. at 165-
168 (plurality opinion) ; Beer, 425 U.S. at 136 n.8.; Whitcomb, 403
U.S. at 149-160; Taylor v. McKeithen, 499 F.2d 893, 905 (5th Cir.
1974) (Wisdom, J.) ; Turner v. McKeithen, 490 F.2d 191, 197 (5th
Cir. 1973) (Brown, C.J.) .

32

challenged procedure—here, multi-member districts—de-
prives black voters of equal access to the electoral process
is Section 2 offended.

3. Given the electoral success that black candidates
have attained with substantial white support in House
Districts 21, 23, and 39—success equal to or greater than
could be expected under single—member districts—it is dif-
ficult to imagine any basis for invalidating these districts
under {Section 2.60 And while black candidates have been
less successful in House District 36 and Senate: District
22, the district court’s findings as to these districts war-
rant no different result. They show that black candidates
have received substantial white voting support.61 In one

60 In House Districts 21, 23, and 39, where black candidates have
been elected in numbers at least as great as would be expected under
a single-member plan, black candidates have received substantial
white support. In House District 21, the black candidate in the 1978
primary (Blue) received 21% of the white vote, but he later
increased his share of the white vote in 1980 to 31% in the
primary and 44% in the general election and was elected; in
1982 he again increased his share to, respectively, 39% and 45%
of the White vote in the primary and general election and was re
elected. J.S. App. 44a. In House District 23, a black Republican
ran in the 1978 general election and received more white votes
(17%) than black votes (5%). The black candidate was unopposed
in the 1978 general election, and in the 1980 primary and general
election. Nonetheless, he received 16% and 37 % of the white vote
in the 1978 primary and general election, 49% of the white vote
in the 1980 general election, and 37 % and 43% of the vote in the
1982 primary and general election, respectively. J .S. App. 43a—44a.
In House District 39, the two black representatives elected in 1982
received 25% and 36% of the white vote in the primary, and 42%
and 46% of the White vote in the general election. One of those
representatives had previously received 40% and 32% of the white
vote in the 1980 primary and general election, respectively. In
197 8, a black republican candidate received more white votes (33%)
than black votes (25%) in the general election. - J .S. App. 42a-43a.

“1 In House District 36, the black representative elected in 1982
received 50% of the White vote in the primary and 42% in the
general election. Another, unsuccessful black candidate in that
race received 39% and 29% of the white vote in the primary and
general election, respectively. This was an increase from 1980,

33

case, a black candidate ran unopposed for a delegate seat,
which is significant because the make-up of the candidate
slate is indicative of the voting strength of a district’s
constituencies. Page 22 note 46, supra. It is also sig-
nificant, as the court’s opinion reveals, that there are no
present barriers to, minority registration, p-arty afiliation,
or candidacy; no anti-single shot voting or equivalent
requirement has been employed; candidate slating has not
been dominated by white voters; and there is no majority
vote requirement in general elections. Some or all of
these factors were usually present in pro-City of Mobile
cases in which multi-member districts were invalidated or
were expressed during Congress’ consideration of the
1982 amendments as a justification for their enactment.
See, e.g., White, 412 U.S. at 623-624; Wallace v. House,
515 F.2d 619, 623-624 (5th Cir. 1975), vacated and re-
manded on other grounds, 425 U.S. 947 (1976) ; Zimmer,
485 F.2d at 1305-1306; cf. Whitcomb V. C'havis, supra;
Black Voters, 565 F.2d at 6; Bradas, 508 F.2d at 1112;
Senate Report 10 n.22; House Report 31 n.105. The
absence of such barriers to participation in the electoral
process, coupled with the findings made by the court
regarding the success that black candidates have had and
the white voting support that these candidates have re
ceived in House District 36 and Senate District 22, sup-
ports the conclusion that the multi-m'ember system has

when a diiferent black candidate received 22% and 28% of the
white vote in the primary and general election, respectively. In
Senate District 22, the black member of the four—person delegation
from 1975-1980 received 47% of the white votes in the 1978
primary and 41% in the general election. A second black candidate
(Polk) ran in 1982 and garnered 32% of the white vote in the
primary and 33% in the general election. J .S. App. 42a. Moreover,
While blacks form only 31% of the population of the city of Char-
lotte, a black Democratic candidate was elected mayor with 38% of
the white vote against a white Republican. J.S. App. 35a. This
figure is significant because it shows that in a head—to-head contest
more than one-third of the White voters were willing to vote for a
black candidate in Charlotte. Blacks also held 28.6% of the district
and 16.7% of the at-large city counsel seats from 19774981. J.S.
App. 349..

34

not deprived blacks of the opportunity to participate in
the electoral process in these two districts.62

CONCLUSION
The judgment of the district court should be reversed.
Respectfully submitted.

CHARLES FRIED
Acting Solicitor General

WM. BRADFORD REYNOLDS
Assistant Attorney General

CHARLES J. COOPER
Deputy Assistant Attorney General

PAUL J. LARKIN, JR.
Assistant to the Solicitor General

JULY 1985

“2 Should the Court nonetheless conclude that there is an insuffi-
cient basis in the record for finding no violation of amended Section
2 with respect to these two districts, then, given the district court’s
reliance upon an incorrect legal standard, the appropriate disposition
would be to remand the case to the district court for further pro—
ceedings under the correct legal standard. See Pullman-Standard V.
Swint, 456 U.S. 273, 291292 (1982).

fl U. I. DOVIIHIIEN'I’ PIIII'I’INC OFFICI; ‘935 461531 10255

 

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