Index

    b

No. t3-1968

h.I TEE

I
)

$lryrtlrxs 6,rrrr:t sf tlp eHnile F|des
Ocrorrn Ttnr4 i985

Lrcv H. Tgonrrauno, et aL,
Appellants,

v.

Rrrps Gnrcr.rs, et aL'
Appellees.

ON APPEAL FROM TTIE
I.INTTED STAIES DISTRICT COURT

FOR TIIE EASTERN DISTRICT OF NORTH CAROLINA

MOTION FOR LEA\TE TO FILE AI\D BRIET OF

SENATORS DENNIS DeCONCINI' ROBERT J' DOLE

CHARIJS McC MATHIAS' JR- AI\[D
HOWARD I\{. METZEI{BAUIVI'

A}iD REPRESEI{TATIVES DON EDWARDS' HAMIL'TON
FISH, JR- PETER W. RODINO, JR- AIYD

F. JAIVIES SEI{SENBREI{NER. 
AS AT{Iq CURIAE IN SI.'PPORT OF APPEIIEES

Wrrxtn J. Rocts.ER
(Courcel of Recod)
Menr P. GEncrlr
BrnB^RA L Arqm.l

Arxouo & Porrm.
1200 New 1{empshire Ave., N.W.
gy'ashingtou, D.C. 20036
(202) 872-6789

Attorneys for Amici Curiae



No.83-1968

Ix Tnr

filrtyeme 0ourt uf fte J|lnitcb $txtcs

Ocronrn Trnm, 1985

Lecv H. Tnonxnunc, et al',
APPellants,

v.

Rrlrr ClNcLEs, el aL'
APPellees.

ON APPEAL FROM THE
UNTTED STATESI DTSTRTCT COURT

FOR THE EASTERN DTSTRICT OF NORTH CAROLINA

MOTTON OF SENATORS DENNIS DeCONCINI'

ROBERT J. DOLE, CTIARLES E. GRASSLEY'

EDWARD M. XENNEDY, CHARLES MeC' MATITIAS' JR"

AND HOWARD M. METZENBAUM, AND

REPRESENTATIVES DON EDWARDS, HAMILTON

FlsH, JR., PETER W. RODINO' JR" AND

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

BEHALT OF APPELLEES

Amici Curiae are members of the United States Congress

,rtro-r.." principal co-sponsors and.-support"* gl tT-T*.d

i""iion 2 oi the Voting riigt tt Act' 42 U's'C' ! 1973 ( 1982)'

Pursuant to Supreme" Co=urt Rule 36'3' amici respectfulty

."qr.ti i""r. ,o hte the accompanying amicus brief''

. Appellecs have consented ro amici's panicipation in this case' Appet-

lants. however, heve denied consent'



As members of the United States Senare and House of
Representatives end the respective Judiciary Commirtees of rhe
Senate and Housc, and as key co-sponsois of amended Secrion
2, amici are vitally inrerested in ensuring rhat rhe Voring Rights
Aa is properly interpreted. The position taken by rhe Solicitor
General and appellanis in rhis casc is inconsistent wirh rhe
literal provisions of Secrion 2. Moreovei, it discounts the
importanc: of the Senate Report, the key lrruroe of legislative
history in this case. We atc oonoerned borh with preserving the
integrity of Congressional Committee Reports and cnsuring
that Section 2 of the Voting Rights Act is presewed as an
effective mechanism to ensure that people of all raccs wilt be
accorded an equal opportunity to perricipere in the political
processes of this aountry and to elect representatives of their
choice.

The accompanying brief undertakes a detailed rcview of
the language and legislative hisrory of amended Seetion 2 of the
Voting Rlghts Acr, issues that the panie will not address in the
same detail. Thus, amici believe that the perspccrive rhey bring
io the issues in this case will materialty aid rhe Court in
itaching its decision.

Memben of the House of Representatives and Senate have
participated as amici curiae in numeroris cases before this Court
involving issues affecting rhe lcgislative branch, borh by morion,
c.g., United Statcs v. Helstoskl, 442 U.S. 477 ( 1979), and
consent, e.9., Natlonal Organizatlon for Women v. Idaho, 455
u.s. 9t8 ( t982).

For the foregoing reasons, amici respectfully request leave

to file the accompanying amicus brief.

Respectfully submitted,

Wrrrrn J. Rocxrrn
(Counsel of Record)
Mrnr P. Grnorx
Brnrene L. Arwml

Anxoln & Ponmn
1200 New Hampshire Ave., N.W.
Washington, D.C. 20036
Telephone: (2O2') 872-6789

Attornqs lor Amici Curiae

Dated: August 30, 1985



No.83-1968

IN THs

Fofr* 6.ourt of t\e JHniteb fttaU*

Osronnn Tsnu, 1985

Lircv H. THonxnuno, el al.,
Appellonts,

v.

Relrn GrNcLEs, e, aL,
Appellees.

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT

FOR THE EASTERN DTSTRICT OF NORTH CAROLINA

BRIEF OF SENATORS DENNIS DeCONCINI' ROBERT J.
DOLq CHARLES E. GRASSLEY, EDWARD M. KEN.
NEDY, CIIARLES McC MATHIAS' JR., AND HOWARI)
M. METZENBAUM, AI{D REPRESENTATIVES DON ED.
WARDS, HAIVIILTON FISH, JR., PETER W. RODINO,
JR., AND F. JAMES SENSENBRENNER AS AMICI

CURIAE TN SUPPORT OF APPELLEES

.-,^



I

TABLE OF CONTENTS

STATEMENT OF INTEREST
SUMMARY OF ARGUMENT ...............
ARGUMENT................

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;
EVDENCE OF SOME ELECTORAL SUC.
CESS MUST BE VIEWED A^S PART OF THE

...TOTALITY OF CIRCUMSTANCES'' TO BE

coNSIDERED .............
II. THE LEGISLATIVE HISTORY OF THE 1982

NUTNDMENTS 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
A. The Lcgislative Historp The Majoqlv

Statemenl in the Senate Report Specifi-
cally Provides that Some Minority.Gfo'p
Electoral Succcss Does Not Preclude a

Seaion 2 Claim if Other Circumstances
Evidence a Lack of Equal Acccss

B. The Majority Statement in thc Senate Re-
port ls an Accurate Statement of the Intent
bf Congress with Regard to the 1982
Amendmen6................ .-.....-.r...
l. The Majority Statement in the Sen-

ate Report Plainly Reflects the Intent
and Effect of the Legislation

2. As a Matter of Law, the MajoritY
Statement in the Senate RePort Is

Entitled to Great ResPect......
III. THE DISTRICT COURT APPROPRIATELY

LOOKED TO THE TOTALITY OF CIRCUM.
STANCES INCLUDTNG 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...

eoNCLUStON ........... ...,.r..........

Prlc

I
2
5

l4

l5

20

23
30



ii

TABLE OF AUTHORITIES

PrSo

CrsBs
Beer v. llntted States, 374 F- Supp. 363 (D'P-'!'
- - 

in ay revd on othcr grounds, 425 U.s. I 30 ( I 976 )

Chandlcrv. Roudebush,425 U.S. 840 ( 1976)

City Council of Chicago v. Ketchum, 105.S. Cl 2673
( re85).......

City of Mobile v. Boldcn' 446 U.S. 55 ( 1980) ""'j""""
Garcia v. llntted States, 

-U.S.- 
105 S. Ct'

47e ( 1984)
Gingles v. Edmisrcn, 590 F. Supp. 345 (E'D'N'C'

r 984).........
Graves v. Barnes, 343 F. Supp. 704 (W'D' Tex'

19721 ..:................

Graves v. Baraes,378 F. Supp. 541 (W'D' Tex'
1974).........

Grove Ctty Cotlegc v. Bell, --U-S. - 104 S' Ct'
r2l I ( le84).........

Kirksat v. Board of Superrisors, 554 F'2d 139 (5th
Cir.i, cut. denied,434 U.S. 968 ( 1977)

Malnc v. Thiboutot,448 U.S. I ( 1980), quottng TVA
v. Hill,437 U.S. 153 ( 1978)

McCaln v. Lybrand, No. 74-281 (D'S'C' April 17'

l98O).........
McMtllan v. Escambia County,748 F'2d 1037 ( I lth

Cir. t984).

Monterq Coal v. Federal Ming- Sa[ety ^!' !lr,:!!h'--nlritcn 
Commission,743F.2d 589 (7th Cir' 1984) '

Nattonal Association of Greeting Card Publishers v'' -iin"a 
Siotcs Postal'Senice,462 U'S' 810 ( 1983)"

Narional Organizationlor Women v' Idaho,455 U'S'

918 ( le82)
North Haven Bd. of Educatton v' Bell,456 U'S' 512

( le82).......
Sperling v. united States, Itl-f'?9-J65 (3d Cir'
-'igisj, 

cert. denied,462 U.S' 919 ( 1976)

lJnited States v. Interaational lJnion of Automobile
Workers,352 U.S. 567 ( 1957) """"r"""

t3
20,21

l4
passim

20

passiryt

l2

t3

22

13,23

7

l2

20,24,
25,26

2t

2t

2

22

2l

20

Prtc

Ilnited Slales v. Dallas County Comm'n, 739 F.2d
1529 ( I lth Cir. 1984) ......... 20,25,26

llnited Statesv. Helstoski,442 U.S. 477 (1979) 2

IJnircd States v. O'Bricn,39l U.S. 367 ( 1968) 20

Ilnited States v. Marengo County Comm'n,731 F.2d
1546 ( I lth Cir.\, cert. dqnied, 

-U.S.-, 

105

S. Ct. 375 ( 1984) Passim

Velasquez v. City of Abilene, 725 F.2d l0l7 ( 5th Cir.
t 984)......... 7,lo,2o

Whitcomb v. Chavis,4O3 U.S. 914 ( l97l )................... I I

White v. Regester,4l2 U.S. 755 ( 1973).............-......... passim

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

Zuberv. Allen,396 U.S. 168 ( 1969) 20

St,trtrrus
Voting Rights Act Amendments of 1982, Pub. L. No.

97-205 passim

242 U.S. I 1973

MrscrLLrxpous
Voting Rights Act: Hearings Before the Subcomm. on

the Constitutlon of the Senate Comm. on the fudi-
ciary,YoLII,97th Cong.,2d Sess. ( 1982)

Voting Rights Act: Hcarings Before the Subcomm. on
the Constitution of the Senate Comm. on the Judi-
clary,Yol.I, 97th Cong., 2d Sess. ( 1982).......

Report of the Senate Judiciary Committee on
S. 1992, S. Rep. No. 417, 97th Cong., 2d Sess.
( re82 ).................

Report of the House Committee on the Judiciary on
H.R. 3112, H.R. Rep. No. 227,97th Cong., lst
Sess. ( l98l )......... .......:........

128 Cong. Rec. 57139 (daily ed. June 18, 1982).........

128 Cong. Rec. 5709t-92 (June 18, 1982)...................

128 Cong. Rec. 57095 ( daily ed. June 18, 1982 ).........

15,16

ll

passim

9

l4
t9

t8



tv

Pr3c

128 Cong. Rec. 57095-96 (June 18, 1982)":

t28 Cong. Rec. 56995 (dailyed' June l7' 1982)""""'

128 Cong. Rec. 56991, 56993 (daily ed' June 17'

r e82 ).........
128 Cong. Rec. 56960'62,56993 (daily ed' June l7'
. 1982)...........:.......

128 Cong. Rec. 56941'44,56967 (daily'ed' June l7'
1982 ).........

128 Cong. Rec. 6939-40 (daily ed' June l7' 1982);""'

128 Cong. Rec. 56930-34 (ilailv ed' June l7' 1982) "'
128 Cong. Rec. 56919-21 (daily ed' June l7' 1982) "'
t28 Cong. Rec. 5678t (dailyed' June l5' 1982)""""'

128 Cong. Rec- 56780 (daily ed' June l5' 1982)""""'

128 Cong. Rec. 56646-48 (daily ed' June l0' 1982) "'
128 Cong. Rec. 36553 (daily ed' June 9' 1982)"""""'

128 Cong. Rec. H384t (daily ed' June 23' 1982)""""

128 Cong. Rec. H3840-41 (ilaily ed' June 23' 1982) "

l9
t9

t9

l9

l9
l9
t9
l9
l8
l8
l9

17,18

l9
l7

No.83-1968

Ix Tnr

finprma 6ourt al l\e JHniteil frtaU*

Ocronsn TSRM, 1985

Lrcv H. Tnonnnunc, et al.,
Appellants,

v.

Rerpn GlxcLns, et al.,
Appellees-

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT

FOR THB EASTERN DISTRICT OF NORTH CAROLINA

BRIEF OF SENATORS DENNIS DeCONCINI, ROBERT J'
DOLE, CHARLES E. GRASSLEY, EDWARD M. I(EN-
NEDY, CHARLES McC. MATHIAS, JR-, AND HOWARD
M. METZENBAUM, AT\D REPRESENTATIVES DON ED.
WARDS, HAMILTON FISH, JR., PETER W. RODINO'
JR. AFID F. JAMES SENSENBRENNER AS AMTCI

CURIAE IN SUPPORT OF APPELLEES

Senators Dennis DeConcini, Robert J. Dole, Charles E'

Crassley, 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 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



they penain to Section 2 of the Voting Rights Acl 42 U'S'C'

E r izi As members of the united Srares House of Represenra-

tives and Senate, amici are vitally interested in this case' which

*rla a.,utmine whether Section 2 is to be preserved T- T
effective mechanism to ensure that people of all raccs will be

accorded an equal opportunity to participate in the political

fro".rr., of this *unity and in the election of representetives

lf ,n"i, choice. This case also raises an important question of

the weight to be given congressional committee reports by

which tlie intent underlying a staute is expressed'

Members of the House of Representatives and Senate have

pt.t*;;;J as amici curiae in numerous cases before this Court

iiror"ing issues affecting the legislative branch' both by motion'

c-g., rlitcd states v.-Helstoikt, 442 U's' 477 ( 1979)' and

.olrr"n,, e.g., National Organlzorlon for Womcn v' Idaho' 455

u.s. 918 ( 1982).

SUMMARY OF ARGUMENT

As the authon and principal proponents of the 1982

amendmenrs to Section 2, our primary conoern 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

"pp"ff"no "ontenJ"that 
the district court's flnding that the

.["lt.ngoa multimember legislative disrricrs violared section 2

.i-,ft. 
"Voting nigfts Act "cannot be reconciled" with the

evidence of some ,1".n, electoral success by black candidates in

iioie airt.i"ts. grief for the United States as Amicus Curiae 24'

28.

The three-judge disirict @urt' using the "tolality of circum-

stances" analysis 
"maae relevant by Section 2' found blacks

were denied an equal opportunity to participate in the^ political

;;;;t i; ,ne 
"naileng"a 

aittti"" on the basis of a wide varietv

of factors. It considered the evidencc of electoral success at

ilr;; i" its opinion, and found such successes to be "too

iiiirot in total numberc" and of "too recent" vintage to

support a flnding that btack candidates werc not disadvantaged

because of rheir race. Gingles v. Edmisten 590 F. Supp. 345,

iiiG.p.N.C. 1984). Appellanrs and the solicitor General, on

it. o,t ". hand, ascribing definitive weight to a single factor,

,igr" ,fr", "given the proven electoral success that black

."iaia.,", have had und., 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 ffnding

itr"t Uta"fs are denied an equal opportunity to participate in the

political process. This position is contrary to the express terms

[i i""tion 2, which requires a comprehensive and realistic

"rAV"t 
tf voting rigtrts claims, and. it 

-could 
raise an artificial

barrier to tegitirn'at"-"l"irt of denial of voting rights which in

,o." ,rry, iould pose as signiffcant an impediment to the

enforcemlnt of Seciion 2 as the speciffc intent rule of City of

Mobile v. Bolden,446 U.S. 55 ( 1980), rejected by congress in

1982.

'fo assume that some electoral success by some members of

a minority group, no matter how limited or incidental such

sucress may be, conclusively evidences an equal opportunity for

membersofthatgrouplconfusestheoccasionalsucrcessofblack
candidates with the statutory guarantee of an equal opportunity

for black citizens to participate in the political process and to

etect candidates of their choice' Experience' as documented by

the pre-Bolden case law, proves that the systematic denial of

full and equal voting righis to blacks may be accompanied by

the sporadic'success oi ,ornt blacks in primary or ge.neral

elections. As the q)urts have uniformly recognized' the vice of

the dehial 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 Z, ana was expressty rejected by Congress when it

considered the 1982 amindments, as is made clear in the



'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 the view of "one
factioir in the controveBy," as argued in the amicus brief of the

Soticitor General ( Brief for the United States as Amicus Curiae

8 n.l2), in the face of clear evidence that'the Report accurately

expressm the intent of Congress generally, and importantly of
the aurhors of the compromise legislation that was reported by

the Scnate Judiciary Committee and enacted' essentially un-

changed, into law.

tf 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 legistation, and by members of the House in

acccpting rhe Senate bill as consistent with the House position.

This Court should not cut the 1982 amendmenB free from their

legislative history, and adopt an interpr3tation of that legisla-

tion inconsistent with the view of the congressional maJority.

To do so would undermine ffrmly established principles of
interpretation of Acts of Congress, and sow confusion in the

lower courB that are so ohen 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 naticin's political and electoral processes. In

il8Z, Longress had before it an extensive record showing that

much had been accomplished towards this end since the voting

Rights Act was adopted in t965, but that much more remained

to be done. ti 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.

ARGUMENT

I. TO ASSUME COMPLIANCE WTTH SECTION 2

UPON EVIDENCE OF SOME ELECTORAL SUCCESS
BY MEMBERS'OF A MINORITY GROUP VTOLATES
THE LITERAL REQUTREMENTS OF TTIAT PROVT-
SION; EVIDENCE OF SOME ELECTORAL SUCCESS
MUST BE VIEWED AS PART OF THE 'TOTALITY
OF CTRCUMSTANCES' TO BE CONS-IDERED

The evidencu 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. I Section 2 requires that claims brought thereunder be
analyzed on the basis of the "totality of circumstances" present

I We meke no efort herein to state the hcts at issue ln thir case in a

complete menoer. though wc do notc the limited nature of black electoral
sucoerr as prerentcd in the dlstrict court'r findingr:

Hourc Dirtrict No. 36 (Mccklcnburg County) and Senetc Distria No. 22
(Mectlcnburg end Cabemrr Countier)-Only two black candidater heve
son elections in thir ccntury. Onc bhck ron e scat in the eight member
llouse delcgerion in l9E2 efter this litigetion *ru filcd (running withour white
opposltion in thc Dcmocratic primary), and onc scrved ln thc four-member
Senate delegetlon from 1975-1980. Thlr limited suooe3s ir offser by frequent
eleaorrl defeets. In Houcc Disria 36, reven black candidates have tried and
failed to wln rear from 1965-1982, and ln Senete Dlstrict 22 bleck candidater
falled ln blds forlGrB ln 1980 and 1982. Blackr comprise approrimately 25
pcrccnt of thc populatlon ln thcsc Dlctrict. 590 F. Supp. at 357, 365.

House Dirtria No. 39 (pan of Fonyth County)-Thc first black to servc
er one of ihe five-mcmber dclegatlon scrved [iom 1975- 1978. Hc rcsigned in
1978 end hlr eppointcd 3uooesror irn for rcelcction in 1978 but was defeated:
e black candldatc wer also defeated in !9t0. ln 19t2, after this lltigetion rrar
filed, t*o blackr *erc eleaed to thc Housc. This pattern of election, followed
by defeatr, mimorr elcalonr for thc Board of County Commirsioners, ln which
the only black elected wat defeated ln her fint reelection bid ln 1980, and l"or

electlons to the Board of Educadon, ln which thc fint black elected wes

defeated ln hic bids for reelection in 1978 and 1980. Blacks comprise 25. I

pcroent o[ the County's ;npuletlon. 590 P. Supp. et 357, 366.

House District No. 23 (Durham County)-Sincr 1973, one black has
becn electcd to the three-member delegation. llc faced no white opposition

(footnotc contlnucs)



6

in the challenged district. The focus is on whether thcre is equal

ecless fo the proc$s. The extent of pest black electoral success

is only one relevant circumstancc.

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

"A violation of subsection (a) is established if' based

on the totatity 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 memben 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 the politi-

cal process and to elect representatives of their

choicc. The extent to which members of a protected

class have been elected to officc in the State or

political subdivision is one circumstanct which may

Le considered: Provtded, That nothing in this sec'tion

establishes a right to have memben of a protected

class elected in numben equal to their'prgportion in

the poPulation."

This express statutory provision clariffes that the "ef,tent to

which tn.rb.l! of a protected class have been elected to ofllcc

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

iro*r, must also be considered, as they were by the district

court in ffnding a violation of section 2 here. saa section IlI,

(footnotc contlnucd)

in thc primary ln t98O or 1982 and no substantlal opporldon ln thc gcnerel

eleaioi clrher of thoce yean. Blackr conrtltutc 36.1 pcrccnt of the populotion

ofthe county. 590 F. Supp. at 337,t66,3?0-7t'

House Dlrrrlcr No. 2l (Wake Courity;-Thc fint dme in thls ccntury e

btrckcendidetcrircccrslbllyranfortherix-membcrdelc;atlonwerinl980.
ThatcemecendldarchedbeendefertedinlgT8.Blectrcomprire2l.S
poi., of thc populerion of the countj'' 590 F' supp' at 357' 166' 

'71'
Itousc Disrla No. 8 (Wilson, Edgecomb and Nerh Countics)-No

black rac cvcr electcd lo 3ct yG from this four-member distria although it is

!9.5 perccnt black in population' 590 F' Supp' at 357' 366' 371'

infra. Electoral success is a relevant criterion, but not the sole

or dominant conctrn, as posited by the Solicitor General.e

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 "resultg" standard would be on whether

there was equal opporrunity to participate in the electoral

proces3.

The statuto.y i"ngrrge necessarily contemplates rhat 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

etected to office, but the group nevertheless has been denied

a full-scale equal opportunity to pariicipate in the political
process.s

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. l, 6 n.4 ( 1980), quoting TVA v. Hill,437

r fie Solicltor General seemr lo 3uggct that black electorel success in

rough proponlon to thc btack proportion of the population should be

precluslve of a Scaion 2 claim. Brief for the United Statec as Amicus Curiae

2{25. At most, this rrgumcnt eppctn rclcvant only to llousc Distria No. 23

(Durham County), end. in any cvent, lr plainly inconsistent with Congress'

ctearly rtated lntent thet Secdon 2 claimr should not depcnd upon the race of
electcd officlals. Section 2 ccekr to def,ea crccssive oonc€rn with the recial or
ethnic ldentity of lndividual ofllccholden and, instead, to focus attention
rrhere lt properly belongs: on the existcnce of an equal opporrunity for
membcn of the minorlty group to partlcipate in the political procesr end to
elect reprerentativer of thelr cholcc.

r Concictcnt with thlr ctcer stttutory mandate, end the legisletlve history

dlscussed belos. the lowcr courts shich have considered thir issuc ell heve

erprersly teJectcd the poritlon cspoused by rhe Solicitor Gencral end appel-
lants. lJnltcd Statcs v. Marcngo County Comm'n,731 F.2d 1546, l57l-72
(llrh Clr.). ccrt. dcntcd, 

-U.S...- 

105 S. Ct. 375 (198'l) ("tt i3

equally ctear that the etealon of onc or a small number of mlnority electcd

officialr will not compel a flnding of no dilution."li Vclasqucz v. Ctty ol
Abtlcnc,125 F.2d 1017. 1022 ( 5th Cir. 1984).



U.S. 153, 184 n.29 ( 1978). Nevertheless' we will examine that

t ii,orv because it conftrms, in the most unequivocal terms' the

inreni of Congress that the extent of minority group electoral

,u"".* be analyzed as a part of the totality of circumstanccs

from which to measure the openness of rhe challenged political

;firn to minority group participarion' Further' that history

provides an importa-nt indication of the manner in which such

lnalysis should be undertaken' and supports the analysis and

conclusions of the court below'

TI. THE LEGISI..ATIVE HISTORY OF THE 1982

AMENDMENTS AND rHE PF.E-Bo,LDEN CAs-P-!+w

CONCLUSIVELY DEMONSTRATE THAT A VIOLA'

TTON OF SECTION 2 MAY BE FOUND ALTHOUGH

MEMBERS OF A MINORTTY GROUP HAVE EX'

PERIENCED LIMITED ELECTORAL SUCCESS

A. The kglsletlve Hlstory: The Mrtorlty Slatemerrt ln

ihc Scnete Report Speclflerlly Provldes thrt Some

Mlnorlty Group Eleetorel Suecers Does Not Pre-

elude e Sectlon 2 Clelm tf Other Clreumstanees

Evldencc o Leek of Equal Aeeess

The legislative history of the 1982 amendments shows very

ctearly that Congreis did not intend that limited electoral

success by a minorig y'outa foreclose a Section 2 claim' This

intent is most pfainfy stated in the Senate Report' but a- similar

intent also is evioeii from the House deliberarions, the individ-

ual views of members of the Senate Judiciary Committee

,ppuia"a to the Senate Report, and the floor debates in the

Senale.

The 1982 amendments originated in the House' wNch

initially determineJin"t *" Boticn intent test was unworkable'

and that it was n..."'ry to evaluate voting rights claims

brought under Section 2 on the basis of "taln aggregate of

objec-tive factors." r Report of the House committee on the

Juiiciary on'H.R. 3112, H.R. Rep. No. 227,97th Cong', lst

Sess. 36 ( l98l ) (hereinafter the "House Report")' As would

rhe Senate, the House rejected the position that any single

factor should be ddrerminative of a section 2 claim. The House

Report nored rhat,'Ialll of these Idescribedl factors need not

be proved to establish a Section 2 violation'" Id' at 30' Thus'

while rhe 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 ctaims 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 thl signiflcance of minority group electoral success.to

Section 2 ctaims. Indeed, the intent of the Committee with

regard to the handling of this factor was expressed more than

once.

The Senare Report includes, as one "typical faclor" 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 minoriiy group have

been elected to officc over an extended period of time

. Relevant factoE, drawn from the court's decirion in lvhltc v. Rcgest.r,

,ll2 u.s. ?55 (1973), and its progeny lncludcd "a hirtory of dlscrimination

afieaing the right to votc, rrcielly poleriry [sicl voting which lmpcdes the

elecrion opportunitiec of mlnority group memben, discriminatory elcments of

rhe elcrtorel rysrcm luch as at-large cleaionr, e maiority votc tcquircment, a

prohibidon on ringtc-rhot votlng, and numbered posts which enhencc the

opportunlty for dircrlminerion, and dkcriminarory slating or the failure of

minoritics to win party nominetion." llouse Report 3O'



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. Zlmmq 485 F.2d at 1307. If it did, the
possibility exists that the majority citizens might
evade the seetion e.8., by maniprilating the election of
a'safe'minority candidate. 'Were we to hold that a

minority candidatet succe$ at the Jrolls is conclusive
proof of a minority group's aooess to the political
process, we would merely be inviting attempts to
circumvent the Constitution. Instead we shall
continue to re(uire an independent consideration of
the record.' lbid." Senate Report at 29 n.l 15. ( Ref-
erences arc to Zlmmer v. McKcithen, 485 F.zd 1297
(5th Cir. 1973), af'd sub nom. East Canoll Parish
School Bd. v. Marshall,424 U.S. 636 ( 1976).)

No clearer statement of the intent of the Committee witlr regard
to this issue seems possible. See Velasquez v. Ctty of Abilene,
725 F.zd 10t7, 1022 (5th Cir. 1984) ("In the Senate Report
. . . it was speciffcally noted that the mere election of a few
minority candidates was not sufficient to bar a finding of voting
dilution under the results test.").c

Further, this analysis, hnd its reliance on Zimmer v.

McKeithen,485 F.2d at 1307,,is consistent with the express

view of the Committee that "Itlhe'results'standard is meant to

restore the pre-Mobtle legal standards which governed cases

3 Thc Sollc,itor Gencrel iuggerr that this ststcment indlcrtes that minor-

Ity 3roup clectorel succc!! *lll nor defeat e Sec-tion 2 clelm only if lt cen bc

rhorn ther ruch rucccsr *ar the retult of the meiorlty "enginccrin; the

elccrion of a 'tefe' minority candidatc." Brief for the United Statcr as Amicus

Curiac 24 n.49. Amici, who wcre integrally involved in writlng thc Scnate

Report, vlew this rtatcment ar providing en example whlch illustratcs why

3ome 3uc{.lr chould not bc dlsporitive, nol t ligal rule dcfining thc onty

circrrmstancc wherc it ir not. Otcourse, there erc numcfiru3 olhcr reasons why

somc clectorel succcss mlght not cvidencc rn equality of opponunity to

perticipete in thc electo6l proccsr. For eremplc, er ln rhe instent casc, ihc

abiliry to ringlc-rhot vote in multlmcmber distrlctr'may produce some bleck

officeholdcrs, bur er thc crpcnrc of denln3 blecks thc opportuniry to votc for

a lbtl slare of candidares. .Sca 590 F. Supp. et 369'

tt

challenging election systems or pracrices as an iilegal dilution of
the minority vore. Specillcally, subsection (b) embodies the
test laid down by the Supreme Court in White lv. Regester,4l2
U.S. 755 (19731f ." Senate Reporr at27.a This reliance on pre-
Bolden case law is imporrant, for it was flrmly esrablished und..
that case law that a voting rights violarion courd be established
even though members of the plaintiff minority group had
experienced some electoral success within the chailenged sys_
tem.

The Committee was acutely aware of this precedent.T
Indeed, in the case set by congress as the polestar of section 2
analysis- white v. Regester-a voring righrs denial was found
by this court despite limited black and Hispanic etectorat
success in the challenged districts in Dallas and Bexar counties
in Texas. Senate Report at 223

c rhere can bc no doubt thrt rhir srr rhe view of e congressionat
majority ar wcll. Thur, in hir addirional viewr, Scnator Dolc remeikcd rhat
"the new subscctlon [2(b]l codiller the legal srandard erticulated in wirc v.
Regcsrcr, a ctandard whlch wer frrst applied by the Supremc courr in
wltcomb v. Chavrs, and which wer subsequenrry apptied in somc 2J Federer
counr of Appcalr declsionr." scnrtc Report at 194. Senaror Grassley, in his
supplemcnthl views, rimiterty rrmarked thar "rhc new tanguege of seaion 2 is
thc tert utilized by rhe Supreme Courr ln Whire." td- et l9l.

7 The Senete Report states:' 
"What hes bcen rhc Judicial track record under the .resulB resr?
Thar record recelved intensive scnrtiny during the Commitree
.hearingr. The Commirree reyiewed not only the Supremc Coun
declsions in Whttccomb lslcl and whttc, btt also somc 23

, reportcd vore dilurlon cases ln *,hich federel counr of appeats,
prior ro 197t. followed Witc.,,Senatc Reporr ar 12.

-- A list end anelysis of ihcse 2J ceser eppcan in Voting Rlghts Act:
Hearlngs Dclore thc subcomm. on the consrrturion of thc scnatJ coim. ol thc
tudlclary, Vol. l.97rh Cong.,2d Sesr. l2l6-26 ( l9g2) (hereinaller..t Senare
Hearingr") (appcndir to,prepared starcmenr of Frank R. parker, direcror,
voting Righ. ProJect, Larycrr' commirree for civir Rrghrs Under the Law ).c rhe scnate Repon citer the ponron of rhic courr's oprnion rn whilc v.
Rcgcster whercin lt rer observed thar .,[sfince Reconstrucrion, only two
bleck candidarer from Drllas county had bcen elected ro the Texas Holse of
Rcprerentatives. and rhcrc iwo were thc onty brecks ever srared by rhe Daflas
Commlttee for Rerponsible Covernment. white-domlnated slating group.,,

(footnotc contlnucs)



IL

The Committee also expressly relied upon ihe 
-o-p}i:-T "f

the Fifth Circuit Coutt of Appeais in Zimmer v' McKelthen'

which it described i'- "1i1itt seminal oourt of appeals

decision . . . subsequuniiv rjiua upon in the vast majority of

nearly two dozen report;d dilution cases'" Senate Report at 23'

ln Zimmer, ttre Circuii Court found inconclusive the fact that

three black 
"anaia"i", 

ttad won seats in the challenged at-large

district sihce the inr,i*im' of the suit' The Court reasoned that

while the appellee oigua that "the attendant success of three

black candidates, di;;"d a ffnding that the at-large scheme did

not in fact dilute trt" [i"* vote..-.. [wle canno-t endorse the

view that the success of Uta"tt candidates at the polls necessarily

forecloses the possiUilitv oiaifuti"n of the black vote'" 485 F'2d

at 1307.

Similarly, rhe Committee considered with approval a re-

cent case involving Edgeffeld County'.South Carolina' where

prior to Bolden",",ing"igftts violation had been found' despite

limited black electoral-sutess' because'i1b;lack participation

in EdgeffelA Countv t'* L"t" merely tokenism and even this

has been on 
".ruay'ar*lt 

r""t"." Micain v. Lybrand, No. 74-

(footnotc conttnucd)

,ll2 U.S. et766'67. The dccislon of the dlrtria court indiceter thet the ftrst of

these cendidrter trn i; l'66' and rhet ihcy- .were 
sclecred by thc white-

dominared Dallas Co;m;,; tb; R.sponriblc G'overnment without the

paniciprrion of rhe blJcommunhy' G'o"' v' Daraes' 343 F' Supp' 704'

izo tw.D- to*. wnl, ofii";;;;; and r*d tn part sub iom' whitc t'

Rcgcstcr,412 U'S' 7Ji (t973)'

A rimilrr polnr wrr madc whh tepcct to Hispanic tuoc's3 ln Berar

County, rhcrc "Iotnl;;; M;""'-Ameicanr sincc l88o have rewed ln thc

Texes Lcalrta,"o rtl''n-"tit t"*ty' of thesc' onty rro were from the

barrio !rca." 112 U;:'"; ;;-69' Tit" dlctria coun lndicared that four of

thece fivc ..* "loa"i;;;60' 
G'o"" v' Domcg 34! F' Supp' ar712'

The llndlngr in Whttc v' Rcgcstu tcem-unrcmrrkebtc until lt h rcallzcd

that ln the in,t"'t ""* 'hi 
t;;;;t a bssqshodnt of bleck cledoral 3uoue33

in rlt of thc dl*ictr lt;; ;; it;* (erccpt Houscbisrrict No' 2t)' lr bcing

relled upon "t -na"i'" evldcncl thar no votin3 ri3hu vl'olatbn hes

occtrred.

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

Report 26.e

There is absolutely no indication in the legislative history

that ony member of either House of congress thought that

evidenct o[ minority group electoral success should be pre-

"lurive 
of a section 2 claim. The Solicitor General and

appellants recite at some length numerous statements to the

.h."t th"t Section 2 was not meant to require proportional

representation. This point is made on the face of the statute'

,nd th..u is no question that Section 2 does not require that

minority group representation be, at a minimum, equal lo the

group's percentage of the population' However, the finding of

i ,iot"tion of Section 2 in the face of some minority group

etectoral success does not depend upon a rule requiring

proportional representation. Raiher, as the reasoning of the

court below iltustrates, the finding of a violation depends upon

the assessment of the "totality of circumstances" to determine

whether members of the minority group have been denied an

equal opportunity to participate in the political process and to

rtnedditlon.thererreothetptc-Boldcadecislonrofsimilarimportnot
spccillcelly eddrcsred in the scnetc Report or in the floor debates. So, in one

of rhe 23 appellete decicions srudied by thc committee, thc Fifth circuit

eourt, rc1eAing r rcapporrionment ptan ordered by the disrria court because

it left rhc chanir for biack 3uocc33 unlikcly, noted iu continuing adhcrence to

the zlmmcr rule "*e add rhe crveet that the elealon of black cendidates

doec not rutometlcally mcen rhat black voting strentth is not minimized or

cancelcd ottt." Klrkscy v. Boatd ol Stqcntson,554 F'2d 139' 149 n'21 (5th

Cir.). ccrr. dcnlcd,43'l U.S. 968 ( 1977)'

Thlcruleofcommonscn3eaa3respectcdbythedlstrictcourts.For
cxamplc. ln Gmtcs v. Barncs,378 F. Supp. 6'll, 659-61 (W'D' Tex' 1974)'

the court concluded thar rhc recrnt election of Hlspenlcl to the Tcras House

o[ Representatlvcc and to thc school boerd did noi liuslralc a voting riShts

claim.

similarly, a dlstria murr refused ln Bc$ v. llnltcd starcs, 374 F. Supp.

363 ( D.D.C. I 9711, rod on othcr grounds. '125 U'S' I l0 ( 1976)' to deem thc

city of New Orlcans to be cnrirled to pre-clearancc under section 5 despite a

sho*ing rhat four blackr recutly had won eteaive office in the municipelity.

elthouth rhe Secrion 5 rerrogression rtandard difen from the Seoion 2

srandard, laerir relevanr to the case at hand in that the court recognized that

minority candidate suc:oers can bc attributabte io facton other than equal

ectca3 to the etecroral prooe!! by minority group membcn'



l4

elect representatives of their choice' The diJproportionality of
minority group repreientation is, at most' one factor in the

analysis.

B. The Matorlty Statement ln the Senate Report ls on

AceurateStotementofthelntentofCongresswlth
Regard to the 1982 Amendments

The Solicitor General appeirs to believe that Congress

intended to adopt in 1982' the rule rejected in Zimmer v'

McKcithen,drawing from certain statements by amicus Senator

noi" 
"na 

oqhers that Section 2 was not intended to require

proportional representation, an inference rhat a Section 2 claim

is foreclosed wherever limited electoral success is shown' See

g.i"f fo, the United States as Amicus Curiae I l-14'ro

ln making this argument, the Solicitor General also argues'

ashedidinanother-rec€ntappealtothisCourtregardinga
S."tion 2 ctaim, City Councll oi Chicago v' Ketchum' 105 S' Ct'

iiiii rggs ), thar tire senate Report is not determinative of rhe

intent of Congress, and attaches greater signiffcance to the

individual views oi amici Senators Dole and Grassley' and

i"i",o, Hatch. r, Brief for rhe United states as Amicus curiae,

ro The Soliciror General elso cltes the Report of the Subcommittee on the

Conctitudon to tho S"n"io Committee on the Judiciary on S' 1992'97th Cong"
'2d 

Scss. ( l9S2) t"S,toTtmlttec Report")' The Subcommltree Report does

not rcficct, nor doer i;;td to ief,ea' rhe vlcws of the Congressional

majority who favored oi"iu-rng rhe Eoldcn inrenr test and teinsteting a

resulis tcst. Id. et 2o-[i'et tt'e rlit the Subcommittee Report was written' a

3-2 maiority of rhe Senetc Subcommittec supportcd existing law' a position

;o;..t, ;.j*ca uy rnc n'f Committee rnd by thc Senate ar a whole' The

Cheirman of rhc SubJtti*--S"naror Orrin Hatch-oppored the Dole

compromlsc "na 
,otti ioi the bilt ultimatety cnected orrly with 

.grcet

reluclenc,e, conrinulng'; ;tc until the f,nel vote on the bill hir vlew "that

rhescamendm"n,rp'oti'"'oefectadcatrucrivetransformatlonintheVoting
Rights Acr. . . .' 128 C;;;' R""' 57t39-(dailv ed' June l8' 1982)' Of thc four

orher mcmbers of the iuilirir,.e: Senaror strom Thurmond opposed the

Dole compromir"; sor"iot Chartes Grrssley rupporred th-e Solpromise' 
end'

er noted betow, erpressly acccded to the maJority vlew of rhc Scnatc Rcport;

and Scnalorr O.nni' 
-Otioiclni 

and Parrick Leahy obJeaed to the con-

clusionr nt thp Subcommittee Rcport'
r r As nored in ,rr"'p."..irrg il,n",o, while scneror lf atch did ultlmately

vote for rhc bill' he opioscd ttri Ootc compromise in Committee and voiced

opposition to it on the lloor of the Senate'

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

grounds.

l. The Maiorlty Sinlemenl ln ihe Senete Report

Plalnly Reltects the lntent and Efrect of the

Leglslntlon

To understand the signilicance of the majority view stated

in the Senate Report, and of the individual views of amici

Senators Dole and Grasstey, it is necessary to understand the

nature and rhe genesis of what is aptly termed the Dole

compromise. Th; purpose of rhe compromise was to clarify

what standard should be used under the results test to ensute

that rhe amended Section 2 would not be interpreted by courts

to require proportional representaiion' The bill originally

adopt"a by the House-H.R. 3l l2-attempted to accomplish

this with a disclaimer rhat "[tlhe fact that members of a

minority group have not been elected in numbers equal to the

group'r-pioportion of rhe population shall not' in and of itself'

Ion.ii,r* a violation of this section." In addition, the stated

purpose of the House bilt was to reinstate the standards of pre-
-Bolden 

case law, which was understood by the House not to

require proportional representation. House Report al 29'3O'

The House bill artracted immediate support in the senaie.

senators Marhias and Kennedy introduced the House bill as

S. 1992, and enlisted rhe support of approximately two-thirds of
the members of the Senate as co-sponsors.t2 still, certain

members of the Senate, and, in particular Senator Dole, had

lingering doirbts as to whether the language of the House bill
*as sumci"nt to forectose the interpretation of the voting

Rights Act.as requiring proportional representation' To ame-

ra lnirially s. t992 had 6l co-3ponsori. and by the time the Senate

Judiciary Committee passed upon the Dole compromise, this number had

grown io 66. Thur, as Senaror Dole himselt recognized in Committee

deliberarions, ..wirhout any changc rhe House bill would have passed."

Executivc Sescion of the Senate Judiciary Committee, May 4' 1982, reponed

at votlng Rtghts Act: Hcarlngs bclorc thc subcomm. on the Constitution ol thc

Scnote Comm. on thc ludtctary, Vol. tl, 97th Cong', 2d Sess' 57 (1982)

( hereinafter "ll Senate Hearings").



IO

liorate this concern, Senator Dole-in conjunction with Sena-

tors Grassley, Kennedy and Mathias' among others r3-
p.op"r"A thai Section ZiU) Ue added to pick up the standard

lnun"i"t d by this court in white v. Regester. In addition, the

disclaimer included in the House bill was strengthened to state

"*p."*fy 
that "nothing in this section establishes a right to have

members of a protecrJd "lr.t 
etected in numbers equal to their

proportion of the PoPulation."
AsSenatorDolehimselfwascarefultoemphasize'the

compromise was consistent with the Section 2 amendments

p"rr.A by the House. r' As Senator Joseph Biden explained in

ih. Co*rittee debate over the Dole compromise, "What it

Joes Iisl, it clarifies what everyone intended to be the situation

from'the outset." Executive Session of the Senate Judiciary

Committee, May 4,lglz,reported at II Senate Hearings 68' ln

introducing S. iqgZ on the hoor, Senator Mathias also termed

the commirtee sctions on Section 2..clarifying amendme_nt[sl"

which "are consistent with the basic thrust of S' 1992 as

introduced and are hetpful in clarifying the basic meaning- of

the proposed amendment"' 128 Cong' Rec' 56942' 56944

(daily ed. June 17, 1982)'tt

r! Senaror Dole erplaincd that he "along with Iamicil 5:1"11* DeCon-

cinl, Grassley, Kenned'y, and Metzenb"l-rn- -"nd 
Senator Methias ' ' ' had

workcd out e oompnomlsc on [Secdon 2l'* ld' et 58'

re Thur. Scnetor Dole erileined the proposed compromise as follows:

"ITlhe compromlsc relains the results standards of the

IiatirierrKennedy blll' Howcver' we elso feel that the legislatlon

shorld be lt."nEhcn"d *ith additionel lenguage delineating

whar tegal rranierd rhould apply under the resultc tesi and

clartfyini thar ir ls nol a mandare for proportional represcntetion'

Thul, our compromirc eddr a nes subrecrion io section 2' which

codified lenguage tiom the t97! Supreme Court decirlon of

Whttc v. Rcgeslcr'" Erecutivc Scssion of the Senete ludiciary

Committee, May tl, 1982' reported at ll Senate Heerings' 60'

Scc also llnttcd Statcs v' Morcngo County Commh'1!l F' 2d l:-1-6: 1565 n'30

iir,r, cir.l, ccrt- dcntcd, 

--U's' 

lo5 S' Ct' 175 ( 198'l)'

r; A simileruna.ii"naing of rhe Senare bill sas erpressed on thc lloor

of thc House by Representetiie Don Edwards' Chairman of the Subcom-

mittee on Civil end Conrritutlonat Rights of rhe Housc Committee on the

ludiciarP
(footnote contlnucs)

l'l

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
starement to be accurate. Thus, Senator Dole prefaced his

additional views with the comment that "[tlhe Committee
Report is an accurate statement of the intent of S. 1992, as

reported by the Committee." to 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 tris position, he later added that "I concur with the

interpretation of this action in the Committee Report." Senate

Report f,t 199. Moreover, the individual views expressed by

both these Senators were in complete accord with the majority
slatement. l7

(lootnotc continucd)

"Basically, the amendmentr to H.R. 3l 12 would. .. clarify the

basic intent of the section 2 amendment adopted previously by
the House.

"These memben Ithe sponsors of the Scnate compromlse I were

able to maintain the basic integrity end intent of the House-
passed bill while ar the samc time finding language which more

effectivcly addresses the concern that the results test would lead

to proportional representation in every jurirdiction throughout
the country and which delineatec more speciffcally the legel

standard to be used under section 2.* 128 Cong. Rec. H384o-

3841 (daily ed. June 23, 1982).
rc Ar Senetor Dole stated in his additional views, his primery purpose in

ollering the compromisc wa3 to ellay fean about proportional representation

and thereby secure the overwhelming bipanisan support he thought the bill
desewed. For thir rees{rn, his commenlc prlmarily wcre oonoerned with
stressing the intent of the Committce that the results lest and the standard of
lVhltc v. Regettcr should not be construed to require proportional represcnta'

tion. Senatc Report at 193-94. Thir in no wey suggest! thst he disagrecd with
the views expressed in the majority reporl, for that repon also went lo Sreat
pains to erplain that neither the resullr tc3l nor the standard of ]lhitc v.

Rcgcstcr implled a guerentcc of proponional representetion. Senale Reporr

ar l0-ll. A discleimer to the samc efrcct appcars, ofcourse, on the face o[lhe
stEtule.

f Senator Dole obJected to efonr by opponents to redef,ne the intent of
rhc 1982 amendmentr on the f,oor of the Scnate. .Sea 128 Cong. Rec' 56553

(daily ed. June 9, 1982).



!o

Both proponents and opponents of S' 1992 recognized in

the floor debates the significance of the majority sta{ement in

the Committee Report as an explanation of the bill's purpose'

io, .rtfv on in thsdebates Senator Kennedy noted that:

"Those provisions, and the'ihtefpretation of those

provisions, are spetled 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

eractly what this tegislation is about'

"ln short, what this legislative report points o-u.'.it

who won and who tost 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 Coni' Rec' 56553 (daily ed' June 9'

1982;' tc

rt Scnatot Kennedy rccmphasizcd thir point a week laten

..lfrhcrclranyquestlonaboutthcmceningo[thelanguagc.we
urgc thc;uages tl rerd the rcport for iu meaninS or to llstcn to

thogcwhowcrelheprincipetlponsoBoftheproposal,notto
i."",.t *fro rourtri agoinrr the proposal and who'have en

entircly air".cnr --itpt-of whar a voting Nghts Act should be'"

128 Cong. Rec. 36780 (daily ed' June lJ' l9E2)'

An admonitlon which Senator Dole hcartily cchocd:

"l Join the Senator ftom Marsachusetr in the hopc that shen thc

iudgcs look ar tre itgisfative history' they will look at those who

rupporred 'rgoroult] 
and enthusiastically thc so-called com-

Promire."
t28 Cong' Rec. Sf78l (deilv ed' June 15' 1982)'

Scnaior Kennedy later remerked to thc same elfect:

"Fonunrrcly, I ritl nor have lo be crhaustivc becausc ihe Senate

tudiciery cornmtii"c Report' prescnr''rl by seneror lvlathias' wrs

an erccltenr .;ril; oi rhe intendcd mcaning and opcration of

thc bill."

128 Cong. Rec' 57095 (dailv ed' June 18' 1982)'

Thus, the proponents of the legislation, including Senators

Dole,re Crassley,2o DeConcini,2l 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 compromisQ,2l or proponents of
particular amendmentsr2s looked to the majority statement of
rhe 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 pectrliar views of "one faction in the con-

lroversy. "
' 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, there is an extensive discussion of how this
iest is to be applied in the Senate commiitee report."
128 Cong. Rec. H3841 (daily ed. June 23, 19821.

Again, there is no suggestion by any member of the House that
the majority statement in the Senate Report was less than an

accurate statement of the intent of Congress with regard to the

biil.

It 128 Cong. Rec. 56960-62, 56991 (daily ed. June 17, 1982).
20 128 Cong. Rec. 56646-48 (daily ed. Junc 10, 1982).
?r 128 Cong. Rec. 56930-34 (daily cd. June 17, l9E2).
22 128 Cong. Rec. 56941-44, 56967 (daily ed. June 17, 1982).
23 128 Cong. Rec. 56995 (daily ed. June 17, 1982); 57095-96 (Junc 18,

r 982 ).
2. 128 Cong. Rec. 56919-21, 56939-40 (daily ed. June 17, 1982); 57091-

92 (June 18.1982).
2t l2E Cong. Rec. 56991, 56993 (daily ed. Junc 17. 1982). The

amendment ofered by Senator Stcvent is particularly notewonhy-il con-

erned the application of the ctandardc of Section 2(b) in pte-clearance

csset-becausc he largely sought to Justif! it on the basis of a consistent

steicmeni in the Senate Report,



LrJ

2. As a Matier of Law, the Moiorlty Stntement ln

ihe Senetc Report Is Entltled to Greet Respeel

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 preinding term, this Court reaffirmed the long-

esrablished principte that committee reports are the author-

itative guide to congressional intenu20

"In surveying legislative history we have repeatedly

stated that the authoritative source for ffnding the

legistature's intent lies in the Committee reports on

the bill, which'represent t I the considered and

collective understanding of those Congressmen in-

volved in drafting and studying proposed legislation''

Zub*v. Allen,396 U.S. 168, 186 (1969)."

Garcia v. llnited States, 

-U.S.- 
105 S' Cl' 479, 483

( l98a); accord Chandlerv. Roudebush,425 U.S' 840, 859 n'36

(teZOl; Zuber v. Allen, 396 U.S. 168, t86 ( 1969); United

itotrt v. O'Brlen,39l U.S. 367, 385 ( 1968); Unitcd States v'

International lJnion of Automoblle Workers,352 U'S' 567, 585

( 1957). The Garcia court also reiterated the principle that

committee reports provide "more authoritative" evidence of
congresslonal purpose than statements by individual legislators.

Gaicta,l0S S. Ct. at 483i ttnited States v- O'Brien,39l U'S' at

385; cf. lJnired States v. Auromobile Workers,352 U'S' at 585'

tn light of these wetl-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

de-bates is misguided. committee reports aie "more author-

itative" than statements by individual legislators, regardless of

2c conslsrenr whh rhis longrtanding principle, the senatc Report has

been rhe aurhorfuarive lourcc of legirlative history relled on by courts

intcrpredng rhe l9E2 Voting Rights Aa Amendmcntr' Sac' c'g'' McMillon v'

Escimbta-courty, 748 F.2i 1037 ( I lrh cir. 19811; gnttcd stdtcs v. 
_Dallas

County Comm'n, 1!g F.2d lJ29 ( I lth Cir' 1981\ Unitcd Sta'a'r v' Marcngo

County Commh,?3l F.2d lJ46 ( I lth Cir.). ccrt' dcntcd,- U'S' 
-' 

105 S'

Cr. lzi ( l98a); Vclasqucz v. Cttv o! Abitenc,725 F'2d lolT ( 5th Cir' 1984)'

the fact that the individual legislator is a sponsor or floor
manager of the bill. See National Association of Greeting Card
Publlshers 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 Salety &. Ilealth Review Com-
mission, 743 F.zd 589, 596-98 (7th Cir. 1984); Sperling v.

United States,5l5 F.2d 465, 480 (3d Cir. 1975), cert. denied,
462. U.S. 919 ( I 9761.2t

The basis for this rule is quite simple, for to give con-
trolling elfect 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. lv{lne 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 refrort of the committee of jurisdiction to provide an
authoritative explanation of the purpose and intent of legisla-
tion before any lloor consideration begins. For example, the
Senate Rlrles 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 lhe 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 staiement made during

2, ln Natlonal Associatlon ol Grcctlng Card Publlshcrs, rhe Coun ruled
that a statement by the fioor managen of e bill, appended to the mnference
committce repon. lacked "the statul of a conferenct reponr or cven r repon
o[a single House available to both Houses." 462 U.S. at 832 n.28. The Coun
in Chandlcr v. Roudcbush held a committec repon ro bc "more probarive of
congressional intent" then a rlatement by Senator Williamr, the sponsor of
the fegislation. 425 U.S. at 859 n.16. ln Montucy Cool,thc cpurt nored rhar
the sponsor! rtetemcnt! "rre the only mentlon in the legislative hisrory of the
s6cillc icsue before us." Monlcrcy Coal v. Fed. Mlnc Salcty il Hcalth Revicw,
743 F.2d at 596. Ncvenheless, bccause the sponror's position wa3 not "clearly
supporred by the conference comminee report," the coun declined ro give rhe
sponsor's remarks controlling weighr. 743 F.2d at 598.



.L

floor debates. it is impossible to determine from the official
record of congressional proceedings whether a given member,

- -o[ a majority or any particular number of membem, was
present when a certain statement was made. It is even
ctistoinary 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 experiencc 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.2o

Furthermore, the "compromise character" of the 1982

amendments does not detract from ihe validity of the majority
views. Here the proponents of the compromise wording
expressly agreed with the majority views and viewed the

2, Thc cecer cited by thc Sollcitor Ceneral in support of the effort to
amptil! ihe stetcmcnr of lndividuel 3cnrton and dirparage the slgnifrcancc of
the Senete Report, arc inepposite

ln Noah Havcn Bd. ol Educatlon v. Bcll, 456 U.S. J 12 ( 1982 ), thc Court
noted thet "the ctetemenr of one legislator made durlng debate may not be
conrrolling," but lndlcetcd thet stetemcns made by Scnetor Beyh, a spon3or
of the l4isledon, were "the only ruthorirativc indlcatlons of congressional
inrenr rcaarding the scope of l! 9Ol and 902" of Title lX, becausc 0l 9Ol and

902 origineted ar e fioor amendmcnt end no committce report discussed

them. 456 U.S. at 526-27.

The othcr ease clted by the Solicitor Ccneral, Grovc Clty College v. Dell,

- 
U.S. 

- 
104 S. Ct. 12tl ( 198,1), also involved an interprctation of Title

lX. Thc Coun ln Grotc Ctty again recognizcd that "stalcmenlr by individual
legislators should not be given ontrolling cfrect," but clted North Havcn to
suppon irr posirion that "Sen, Bayh's remarkg arc 'an aurhoritative guide to
the siatutc'r con3truciion.'" lO4 S. Ct. at 1219. The Coun indiceted thar Sen'

Bayht rcmarkr rere euthorirative only to the extent that they wcrc consistent

with thc lenguage of the rtatutc end thc legislativc hirtory. Id.

Thur, /Vorrf, Havcn anll Grovc Clty anccrn thc rignillcancc of a sponsor's

erprcrsed viewr in thc abrencc of e rclevant slalcment in a commlttec repon.

Here. in marked oonlreslr the Solicltor (lenera! draws en unwarranted

inferencr that elecroral sucoas mlSht precludc a Seaion 2 clalm from Senator

Dole's expre$cd derire to ovoid a requirement of proportional representation,

and then asserts that infercnce ac supcrior to an ctpres3 sletement to lhe

contrery in the.Scnate Rcport.

23

compromise wording as merely a clarification of the intent of
Congress.2e 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. TIIE DISTRICT COURT APPROPRIATELY LOOKED
TO THE TOTALITY OF CIRCUMSTANCES IN-
CLUDING TI|E EVIDENCE OF SOME RLACK ELEC.
TORAL SUCCESS TO DETERMINE WHETHER
RLACKS HAD EQUAL OPPORTUNITY TO PARTICI.
PATE lN TIIE ELECTORAL SYSTEM; TIIE COURT
DtD NOT REQUTRE PROPORTIONAL REPRE-
SENTATION

At bottom, the argument of the Solicitor Ceneral and
appellants, that limired electoral success by members ol. 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 rhe disclaimer that Section 2 does
not provide a minority group the right to proportional repre-
sentation. All parties agree that Section 2 was nor intended by
Congress to provide a right to proportional representation-but
that point has no significance to ihe immediate issue.

As the pre-Bolden case law discussed previously iltusrrates,
the trier of fact may find a denial of equal voring opportunity
where, despite evidence of some minority group electorat
success, evidence of other hisrorical, social and political factors
indicates such a denial. See, e.g., White v. Regester,4l2 U.S.
755 (19731; Kirksqt v. Board of Supertisors, 554 F.2d 139 ( 5th
Cir. ), cert. denied,434 U.S. 96S (1977); Zimmer v. McKeithen,
485 F.2d 1297 (5rh Cir. 1973), aff'd sub nom. East Carroll
Parish School Bd. v. Marshall,424 U.S. 6j6. 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

2e.t ? t€tt and notes accompenying nn.l4-11, supra.



of thengro;p;',1 
o","rr,ne whether a violation of Section.2 has

occurred, courts "'" 
tt'"'"'ider whether' given the "totality of

circumstanca'," *t't"i-of " 
p'ot""ted class have been gtven

an equal oppotunity 't'o*l"ii'ie 
in.the electoral process and

to elect ..rr"r.'t"tl;; irt"i' "t'oi""' 
ln its opinion' the

district court appea'J;t ;'atrtake just the sort of "totality of

circumstanc"r,, "nrrlirl" 
it" chalre-nged state legislarive dis-

tricts as is ."quit"d';; ;;;;i;" L I fact' the district court'

quoting the Senate'G; at28-29,'set forth the nine so-called

"Zimmer"factors *ilJ;;;' be relevant in determining wheth-

er a Section 2 vioraffi;;;;;"ttablished' and proceeded to

analyze those factorg' 590 F' SuPP- at 354'

The court 
"ouJi 

ttt"t it r""q a high degree of'racially

polarized or bloc '"tftt' 
*"ft that in atl iistricts a majority of

the white votent n"'"i''ot"A for 
-any. 

black candidate' The

;;;; . r, 
""i " 

r ii' io r 

" 
i'"i'"'if-q 

- [ ilf':lt:']' .Iil::li l:i"*triri,g whether vote dilution exlsl

here,large m'rtimtTourriil;t; are invoiued'sr see McMillan

roAs rhe Sotlcior (lencrel rrjm$f poinu out' "[rlmended Section

2 . . . foci'scr no' on g;"t;ioiin3 "tt"tion' 
resulu' but instead on securing to

cvery citizcn tn" nrnt t" 'o"i'llppo'unit" **lt'*::ttit"tryi;:::
;#;:': : 

j " TTi T:,li"Ylff Lillffi:f i,,.,,i". in" erecrron resur*

coutd not heve been r

etone should '"t 
u" i"ittii'atite oi a Section 2 cleim'

s r wc do *'ffh i:i:,1:,iir*:l'.ii.[r,!:':# [:
minoritY candidarel"

the cendldate or ru, oir,", 
"holcc. 

lt' t.o*.,.,..*.eJority or wtrirc v.oters will

not vorc ro' 
" 

ur""t'1"1'Jiffi :1' "Y*::*i:*i:li: #]|H*::

24

of the Section 2 claim in such a case' though it may be a factor;

rather, it is the *nflu"nt" of fractors which indicates that an

.o#tr*.,,,r:lllf :f :'r"*'[:.*H'i.l"',::"]#ii:
elect representatlves ol tlrcrr vrrvtvv r'F-

:il:.:"H;',1,""ff "Jil:';:,il;;i:i::::"fi *:11[#",T]"',:"
ir rikerv to bc of *t*'"i' 'i'in;-"It::':;"ti"lXl;$,1.TX #[:;X
i::'I::l :: [, "T 

j:T:'I: lL J:' lH"# :i;;;;' br a ck ca n di d ares i n'l hc

oiir ,"ioa.y whitc opposition' !- -nu .rrricnlar eterof lhe maJont, 'trrrv vrr-- 
^L-. --r, k nrpicnt in eny particular electtt

Becausc of idiosyncrasier that may bc present

rhe cou rt shourd rook " ilg::'ili J ::: 
"1f 

: "' :1':',11T.T;,1i1'*.:T.'1::::JT il"ffi #ffi ;*"-':-l' courie' ror this reas

black sucrcss in " 'ingh 
;;'"'i'on' tt"n with somc whire ruppoil' cannol

determinative'

v. Escambia County, 748 F'2d 1037-(5th Cir' 1984); United

Sutes v. Dallas C'u'nty'Co^'^*sion'-739 F'2d t 529 (llth Cir'

t984); Ilnited States''' Ma'"'go County Comm'n' 731 F'2d

1546 ( llth Cir. 1, l:J't' d)nied' U'S'_-' 105 S' Ct' 375

iirta\. rtris brief does not contend that all at-large'

mulrimember districts should be suspect or subject to challenge

under Section 2. n'it'"', the district court acknowledged that

;r"rrr,ir".rU.. tritiict' does not alone establish that vote

dirution has.resulredl;-iro F. supp. at 355, but found that large

multimember districts along wiih severe racial polarization in

voting and other f";;t ;;tbined here to create such dilu-

tion.32

The district court siated further that it fo.und ' li:::O,tf
om.iri air"rimination against blacks..in voting matters-ln-

cluding the use .f d;;i";;'"rt as a poll tax' a literacy test' and

an anti-single-shot ;t;i"g law-which-had continuing elfect to

depress blacr voter-t"iitit"'ion' :99 F' Supp' at 359-61'

Although the distritt';urt acknowtedged that these dev'ices

were no longer.rpi'rta Uv the early 1970s' it also recognized

that their existence fot o"r halt a century has had a lasting

impact. Id. at fd' 
- 
tt'i lasting impact of historical dis-

crimination on the"prero,t-a"y "6itity 
to participate in the

"i""i"trf 
process has also been recognized in other recent cases'

C[. UnitedSra,es u"-io""So County Comm'n'731 F'2d at 1567

("IPlast discrimination """n 
severely impair the present-day

ability of minorities to participete on an equal footing in the

;ii,i;"i process.")f Mcitittan v' Escambia Countv' 148 F '2d at

1043-44.

Thedistrictcourt<tecisionrests,inpart,onthe-factthatthis
history of official discrimination is still relatively close in terms

o[ rime. The courrnoitJ in"t a "good faith" effort is now being

-, 
*" *,t",ar General mischarecrcrizec rhc disrria court's posirion in

suggesting ,ft", i, i.p'opt'iy dcRned-racially polerized voting to exist whcre

more rhan 50 perccnr oi*t i,., and blacks voie for a dlfferent candidate. The

districr court's findinJ ti'tt"rtrf, polarized voting lnltead w-as-bascd on

exrengive experr rcstrriory *ii"rriri"brishcd thar a meJoriry of whire voten

witl not vote for ,rr, nr'iloitr'"-'naidarer' This was the cese evcn when blecks

ran for office unoPPosed'



lo

made by the responsible state agency to remedy the effects of

pliirtltriination' The court observed:

" ' . . . If continued on a sustained basis ' over a

sufficient period, rhe effort might succeed in removing

the disparity inlugi't'"tion o'hi"h.turvives as a legacy

of the long p"ti'a 
"iJirect 

denial and chilling by the

state of ."gitt'lti* Ly black citizens' But at the

present ti*" tftJg"p tt"t ""t 
been closed' and there is

of course no gti"?"It"i ttt"t the effiort will be contin-

ued past the end of the present state adminis-

tration.':' 590 F' StPP' at 361'

Thecourtbelowalsorecognizedassignificantthemajority
vote requirer.nt i"'p"t"i'iv-fft"ft Caroi=ina in primaries' CI'

Zimmer,485 F'2d-"1 floS' Because of the historical domina-

tion of the Democ*1i-f""v in loc.al rac$' this majority vote

requiremen, in p'itll"J substantiallv imPeded-minoril'-:ort"*

from electing .,naiJ'it' oilrt"it choice' 590 F' Supp' at 363'

Recent 
"ases 

*,hich"to*-"onriaered -amended 
section 2 have

reached similar """f""t ' Cf' U"U-illan v' Escambia County'

supra,748F-zd"' ilii iiei maioritv vote is required during

the primary in 
"n "1"" 

if'"'u the D-emocratic Party is domi-

nant. This factor *"jtftt-in f"'o' of 
.a 

finding of dilution'");

llnired states ". nrttri'ir,u^ty co^^urion, suprd, 7t9 F '2d at

1536 (" [Tlr," ,oqtitJtt* "ri majoritv in the primary plus the

signiflcance of ttre"Oliolr4tic primary combined to 'weighI I

in favor tr , nniing oi air'tiot:' '' ")t llnited States v'

Marengo countv i'^f it"i' 731 F'2d.1t ls19 11.:|]]t:q::
vote dilution i, "J'i'in"ed" by a majority vote requirement ln

the primary)' 
-..rr ction

The district court found that "Iflrom the Reconstru

era to ,t " 
pr"'"nt"i"' '"pp*riio 

tt"itr prejudice against black

citizens tr"," t""n t;ffi;t used by n"i'ont' eirher candidates

or their ,ro*ttol';;; ;:"'s-of influencing voters in North

Carolina pofiti""iLmp"ign'"' 590 F' Supp' at 364'

Moreover, the racial appeals "have tended to be most

overt anrl ff"t"ni'in tt'ott p"'ioat rrhen btacks were openly

asserting pofitt"i 
'""i'J'ii rights'" Id' The district court

concluded that the effect of racial appeals "is presently to lessen

io ,ot. degree the opportunity of blirck citizens to participate

.ff".,fr.ly i"n tt " 
potiiical p'o"t"t' and. to elect candidates of

ih.i. "hoi".." 
Id. Raciat eiectoral appeals are a relevant factor'

J"i",. Report at 29- White not present in this case' one must

be sensirive to the possibility oi racial electoral appeals by

minority candidates as well'

And, the district court found that North Carolina had

offered no legitimate policy justiftcation for the form of the

.tr"tt"rg"A diitricts. S'qO f' S'pp' at 373-74' As the court in

iir"n[o County acknowledged, 
;the tenuousness o[ the justili-

cation for a state poii"y maf indicate that the policy is unfair'"

731 F.2d at l57l (citation omitted)'

The foregoing findings contained in the district court's

opinion illustrite that in decirting this case the court appropri-

ii.iv .ontiaered the factors thai Congress found relevant in

,.r.rring the "totality of circumstances"' Amici also note that

rhe district 
"oua 

,n"iyzed black electoral success at length' as

the statute .ontemplates' 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

io establish that blacks had an equal opportunity to participate

in the political process! because it was due to the presence of a

varietyoffactorsotherthanthosewhichindicatedthatblacks
had been given an equal opportunity to participate in the

political process.

' ln the 1982 etection in House District 36 (Mecklenburg

County), for example, black candidate Berry was elected' 590

F- suip. at 369. in that etection' however, there were only 7

white candidates for 8 positions so that I black candidate had

to ,be etected. Id. EvLn under these circumstancest only 42

p";."n, of ,he white voters voted for Berry, the black candidate'

, in th. general election, and Berry was the first black representa-

tive elected from House District 36 in rhis century' 590 F' Supp'

at365,369.Sevenotherblackcandi<tatesranunsuccessfully
for oflice between 1966 and 1981, and there was another black

candidate in the 1982 election who lost' Id'



l6

ln Senate District 22' which atso includes Mecklcnburg

countv, only one #;fi;"Jid"te has been elected' and he

served from 1975-riiir' 
-ig0 

F' sup-p'.at lo5' In 1980 and

l e82, bl ack 
""na 

ia"LT;"; ;;;*";'-tt'#ril'l: "i:tt i; 
til:

four-member Senate delegation rot fit '',1;ti::J;"#;i
1980 and l9s2 electil;t'";;tre lhan 33 percent of white

voters voted f"' til;;;:r candiaatt'' i90 i' supp' at 369'

while ?8-94 p"'"tni ;i tl* black- 'ot"i 
voted for the black

candidates. Id' E,"i'in ttt" 1982 general etection' where 94

Dercent or the il";l"t; "i1-9 
r" tr'i irt"r gxndid6te' the

Llack candidate tosi' 
'iJ' 

rni' illustrates the extreme'difficulty

blacks have in tr""t'ingir";;fuid"t* '^'h"'" 
there'is racially

polarized voting in'''i"tgt' predominantly white multimember

district.

Even in House District 23 ( Durham Countyl' which' on

the surface, t'"' " '""rl"iil; ';;1*:f'l 
t."t" oftmintriry electoral

success compared'ffii;'t;;; of the other challenged districts'

il;il,ir,".,t,"*Jll,T,ru*.,*-,X'[:!1.I:i::.iiiil:
fi:ll"':J"t,L*1il:*i;ir"il,ii:i:;:':"',l,ii':[""J"'
seneral election il;-th; ieso prima'J "na 

general elections'

f,oo'.,." the black candidate '"n 
u'i"ontesied' Id' at l1o'

Furthermoro, in ii'l i'ii'oit"'v tr'"tt were only two'white

candidates ro' tr""" '""o 
* th"t ont-ilack necessarily had to

win. Id.N"'"'riJr"";;;;; tr"n t'drJiihe white voters failed

to vote for the Ui""f ""naidates' ""n 
*'hun they had no other

choice. Id' at 3?0-71'sc . o----a n t

ln light o[ these findings' th'e district court found a denial

' 
r'" ii i e-'i q':: Jllr ;.; ; 

jir 
"L*jl'ffi :[:$' ]:lYii:

desPite some evl

at !76' Th" 
.i;ri.ti**ta tt'"i'it""'se of the raciallv

polarized t""to?#' t{il::::al. success came at a pnce'

"[Tlo have a ;;;;;t of success in "iJJ"g ""'ndidl::t-'of 
their

choicc in tr'"'" ii"l"o' ur""r- 'o*"-*uti 
rely'extensively on

, il;i;, il -,,,ir l*,;3,l' t'fft r :i ff *l' rfi:' H'$1
right to vote

!r sr? footootc I at p' 5' supra' lor

ilecrorel suctessc3 at issue here'

Furrhermore, the court stressed rhat even this success was a

recent phenomenot'"'ni-i*ofar as'the 1982 elections were

concerned' was "too 'i"'nffit T1, 
aberrational in terms of

speciffc candidates' i*'lt'-"'a political trends' and' in any

event, still too ttni"iJ-'in numbers' to support an-v- sulh

ulrimare inference" ti tq"litv of opportun ity' Id' at 367 n'27 '

The Solicitor General and appellants' position would 
-nar-

row tlre scope of '"J;';t;; 
;t;l t-":tion z does not permit'

It would require tf'J i"'n to ignore- the totality of circum-

stances evidencing 
'' it'itf 

-or 
iq'"t political and electoral

:Fi; ;{ r:.,*,T ii*llx, :1,#':" JT"fi:,::ffi:
:1".'.'::l r; HIll;t,J ;* id a tes' tha t wourd be d ispositive'

The Solicitor Ceneral and appellans try to justify this

approach by arguing that the congressional rejection of a test of

nrooorrionari,r r..?rri;;;; ;;ding that limited electoral

.u.."r, is dispositivl';;;;t 2 claim' The district court' in

analyzing rhe "totality of circumstances"' neither ignored elec-

toral succes, uv ti""iti"t' no' fgun$ this one factor to be

conclusive. There'i""I'*L"tti9n in the opinion of the district

court rhat it ,ni'int"tp'""ijft". intent-of Congr"ts and found a

rlenial of voting tdi; timpry because blacks had attained less

rhan proportional 
"';;;"*" i'ather' the district court 

-exprcssly
acknowledg.a *'"i rt'o lack of 'proportional representatlon ts

insulficient ,o t"jfitfi " 
i""tio" 2 violation' 59o F' Supp' at

355.



J
30

CONCLUSTON

For the reasons set [o]th above, amicl respectfully

that this Court affirm the.decision below, and recogni

neccssity of measuring a violation of Section 2 on the t

the "totality of circumstanc-es," with particular emphasis

factors set forth in Zimmer and the Senate Report'

Respectfully submitted,

Werrsn J. Rocxrsn
(Counsel ol Record)
Mem P. GrtoeN
Brnnete L. Atwru

Anroun & Ponrrn
l20O New tlamPshire Ave',
Washington, D.C. 20036
(2021 872-678e

ittornqs for Amicl Curlae

Dated: August 30, 1985

the
rof
the