Defendants' Post-Trial Brief

    +a
-.:{.}s

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA

RALEIGH DIVISION

RALPH GINGLES, Et AI.,

Plaintiffs,

vs.

RUFUS EDII,TISTEN, €t A}.7

Defendants.

-and-

ALAN V. PUGH, €t al.,

Plaintiffs,

vs.

JAMES B. HUNT, JR.2 et aI.,

Defendants.

No. 81-803-CIv-5

No. 81-I056-CIv-5

DEFENDANTSI POST-TRIAL BRIEF

Introduct ion

The plaintiffs have alleged that the multimember

district configuration in certain counties of the State deny

black voters equal access to the electoral process. This

clairn of unequal access to the political process is clearly

disingenuous. The gravemen of the plaintiffsr case and the



..j:::.

-2-

focus of their proof is that the districts as drawn in Durham,

Forsyth, tlecklenburg and Wake Counties do not .51gr@ that

a black will always be elected. The plaintiffst expert, Dr.

Bernard Grofman t ctiticized the multimember configurations on

the grounds that they did not guarantee that black candidates

would be as successful in 1984 as they Yrere in L982. GROFI'IAN,

T. 83, IO3. Nothing in the legislative history of section 2,

however, evidences a Congressional intent to insure safe seats

for racial minorities. The thrust of the statute is access

and opportunity, not guaranteed election results. See Turner

V. McKeithen, 490 F.2d 191, 197 (5th Cir. I973).

The scope and Purpose of Section 2 are best examined in

Iight of the two most significant vote dilution cases, White v.

Register, 4L2 U.S. 755, 93 S.Ct. 2332, 37 L.Ed. 2d 314 (1973) and

Citv of l"lobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 54 L.Ed.

2d. 47 (1981). The facts of l,lobilq, the case to which congress

adversely reactedr dlrd those of White, which set the standard

that Congress wished to codify, provide the background necessary

to apply the amended statute. Comparisons of the record in

this case with the findings of the district courts in White

and Mobile make it clear that Section 2 was never intended

to reach the circumstances of the case at bar.

fn White, the record showed that the counties in

which the Plaintiffs challenged the at-large system had the

following characteristics: 1) a history of official racial

()a1\
lar

%.\€'-L\
\

v{a-
ani,!ft
%%zt\

%au<\

&



-3-

discrimination, which continued to touch the right of blacks

to register, vote and to participatei 2) a majority vote

requirement in party primaries; 3) a place rule which

reduced multimember elections to a head-to-head contest for

each position; 4) only 2 blacks elected to the Texas legis-

lature since Reconstruction; 5) a slating systemi 6) a

white dominated organization which controlled the Democratic

party and which did not need or solicit black support;

7l a consistent use of racial campaign appeals by the Demo-

cratic party. The district court concluded and the Supreme

Court agreed that the net results of these factors was to

shut racial minorities out of the electoral process..

Likewise in l,lobite, the plaintiffs attacked the at-1arge

method of electing the city commissioners, 428 F.Supp. 384

(S.D. Ala. lg77). The district court, applying the test used

in Zimmer v. McKeithenr 4S5 F.2d L297 (5th Cir. 1973), found

that the electoral system there was marked by a majority vote

requirement in both the primary and general elections, numbered

postsr and no residency requirement. In addition, in a city

whose population was 35.4t blackr Do black Person had ever been

elected to the Board of Commissioners because of acute racial

polarization in voting. The court found further that the city

officials had made no effort to bring blacks into the main-

stream of the social and cultural life by appointing them to

city boards and committees in anything more than token



-4:

numbers. The praintiffs arso marshalled evidence of police

brutality towards blacks, mock lynchings and failure of
erected officials to take action in matters of vitar concern

to brack people. on appeal to the Fifth circuit, the court

noted that the plaintiffs had prevailed on each and every

Zimmer factor,5Tl F.2d 238t 244 (5th Cir. 1978).

The record in the present case differs dramatically
from the pictures drawn in White and Mobile. Multi-member

districts in North carolina simpry do not operate to excrude

blacks from the poriticar process as they did in those cases.

The degree of success at the polls enjoyed by black North

carolinians is sufficient in itself to distinguish this case

from White and tlobile and to entirely discredit the plaintiffsI
theory that the present legislative districts deny blacks

equal access to the political process.

The legislative history explicitly states that Section

2 is aimed at jurisdictions, rike those chalrenged in white$z
and Mobile, in which "racial politics dominate the electoral 'za^A'w <X
process..,s.ReP.No.4L7,97thCong.,,2dSess.33(I982).wru
The evidence before this court will not support a f inding S y*41-----J * e Arr_*\
that considerations of race dominate politics in North Carolina. oZ er:-
On the contrary, the record shows that coalition shapes the -/
political landscape and that the process provides effective,
responsive representation for alI citizens of the State.

a"qr-

zw



' 'r"i:'

-5-

The senate Report identifies several factors which may

be relevant to the courtrs anarysis in a vote dilution case

brought pursuant to section 2. The record uneguivocally
establishes that the state has prevaired on nearly every factor.

History of official discrimination that touchedthe right to vote.

The defendants have not attempted to prove that official
discrimination which prevented blacks from actively participating
in the democratic process did not in fact exist in North Carolina,
as it did in virtuarly every state in the Nation. what distin-
guishes North Carolina, however, is ah"

9$gn taken by the state to remove all barriers and impediments

and to encourage potiticar interest and activity by the brack

c,'ommun i ty .

The drive to engage bracks in the erectoral process in
this state began before the passage'of the voting Rights Act )
in 1965. rn Mecklenburg and wake counties, for example , wJt'::.
voter registration drives aimed particularry at increasing
black registration began before that date. over the past
years the State Board of Elections has redoubled its efforts
to reach those groups in the state that are relatively under-
registered, especiarly blacks. The Board of Electionrs most

recent campaign included a comprehensive educational program

A.



lu"xnl [1rtu'*<2

\ otY*"* offu"'"'*n
-6:-

ij t'

to encourage interest in voting, and new legislation designed

to maximize access to registration. At the close of the

books prior to the L982 General elections, the Boardrs drive

had resulted in a 17t increase in registration among blacks.

By the adjournment of the 1983 Session, the General Assembly

had enacted new legislation providing for more registrars,

more registration locations and generally easier acceSS to

reg istrat ion.

llo barriers or impediments to reoistration and voting *; "A\,_-
p.re=ently "*i"t in a. Moreover, the State has 

* ry"%
affirmatively and effectively sought to eliminate any residual 

i:e ?

ef f ect of past d iscrimination which "touched the right to 
1_+

vote.'r Based on the whole recOrd, it cannot be concluded *g\

that those past impediments to political participation have

any perceptible impact on the ability of black citizens to

involve themselves effectively in the democratic processes of

North Carolina today.

The senate Report does not purport to cast in stone

the definitive inflexible list of relevant factors to be

considered in Section 2 cases. The factors are meant to be

exemplary of the types of evidence which might be relevant,

and the relevance of any given item may vary from case to

case. In this instance, th_is fi{st I V

r*JEg!, largely because the state's effort to overcome the

effects of past electoral discrimination has been so successful.



- t-

The mere existence of impediments to the exercise of the fran-
chise by minorities at some time in the past shourd not "in
the manner of originar sin" continue to be accounted against
the state long after the barriers have been removed and the

residual consequences ameliorated.

The extent to which voting is racially polarized.

The plaintiffsr expert witness, Dr. Bernard Grofman,

testified that voting in the elections in this state is
severery and persistentry racially polarized. GROFMAN T. gz.

Dr. Grofmanrs conclusion, however, is based on Dr. Grofmanrs

definition of racially polarized voting. His definition is
as follows:

Racially polarized voting occurs when the differ-
ence in voting patterns of black voters and white
voters are such that the raciar composition of the
electorate wiIl affect the election outcome, that
is, if the election were held entirely within the
members of one community as opposed to entirely
within the members of the other the set of candi-
dates elected would be different. GROFMAN T. 195.

whatever merits Dr. Grofman's definition may have as a
theoretical construct, it has very little to offer to an analysis
of a real political contest where the objective of any candidate,

regardless of race, is to win. Grofman considers racial polari- 
*1,.?

zation 'substantially signif icant' when less than 5ot of the iCaAL'/"
white voters vote for the brack candidate. GROFIT1AN, T. 8r.
rn terms of politicar rearity, this is a totarly arbitrary

B.



-8-

distinction. Racially polarized voting is significant ( "PoIi-

ticallyr' nsubstantiallyrn "statistically' or otherwiser) when

the black candidate does not receive enough white support to

win the election, whether that be 10t or 50t of the white vote

A candidate is primarily concerned with receiving more

votes than his opponents, not with the color of the person

who votes for him. Discrete and different voting patterns

among racial groups concern the candidate when they operate

to prevent him from winning. This political reality and not

Dr. Grofmanr s academic niceties lie at the root of Congress'

inclusion of polarized voting in Section 2 analysis. The

Senate Report explicitly states that 'I i] f plai.ntiffs assert

they are denied fair access to the political Process in

part, because of the racial bloc voting context within which

the challenged election system works, they would have to

prove it. " S . Rep. at 34 ( emPhasis.. added) . The mere Presence

of different voting patterns in the white and black electorate tf
does not prove anything one way or the other about vote

dilution. What is probative of vote dilution is voting along

racial lines which shuts the minority group out of the process

by consistently defeating the candidates of its choice.

Dr. Grofman was unable to cite any suPport in the

political science literature for his definition. Ilore

inportantly, his definition cannot be reconciled with the

legislative history of Section 2. The Senate Report specl-

{r e \
\!- 7-_.|xo!^-

ItLdl' 
,

Pnla"@

vr''*b

fically endorses single-shot voting, therefore a prohibition
*<^* 

)



-9-

on single-shot voting is evidence of vote dilution. Every time

black voters concentrate their votes on one black candidate

in an election for a multimember delegation, while the whites k(lo , .5-
generally cast aIl their votes, the voting will be polarized ault"

according to the Grofman theory. A definition of polarized

voting which condemns single-shot voting is obviously both

overbroad and politically naive.

Another critical problem with Dr. Grofmanrs definition

is that it does not comport with the legal definition developed

in vote dilution cases. In Rogers v. Lodge U.S. L02

S.Ct. 3722 (1982\ the Supreme Court described polarization

in terms of its capacity to effect actual election outcomess

Voting along racial lines allows those elected to
ignore black interests without fear of political
consequencesr and without bloc voting the minority
candidates would not lose elections soleIy because
of their race. 102 S.Ct.'at 373I.

naii@vggQg--is probalive of vote dilution only
..=-\---.-_

where blacks consistently lose elections because no whites

or few whites will vote for them, the voting is racially

polarized. Where blacks win because of single-shot voting

by blacks combined with substantial support from whites, the :k
votingisnotracia11ypo1arizedinanymeaningfu1IegaI*ffi
sense' 

' *3,s'ry
-\,/ 'q-- - \
a '<-r-' Z<2ar, ^\



-t 0-

rn NAACp v. Gadsden county schoor Board, G91 F.2d 979

(l1th cir. 1982), the court quoted the language from Rogers

as a guide to gaging polarized voting in Gadsden County

elections. The court found that brack candidates had rost
elections solery because of their race. rn a county in
which blacks comprised 48.5t of the registered voters and in
which 14 blacks had run for office since L972, only 1 black

had been elected. voting by whites along racial lines had

prevented blacks from winning elections.
Similarly, in l,tcMillan v. Escambia Countv, FIorida,

588 F.2d 960 (5th cir. L982) no black had ever served on the

county commission elected at large. The court of Appears

noted that I'it is sensible in this case as it was in Lodge to
expect that at least some blacks would be elected absent

racial polarized voting." 588 F.2d gGO, 966 at n.14. Here

again, the court viewed racial bloc. voting as probative of 
t"_ __*the issue of vote dilution insofar as it_{j+ggg{-!1gEAgg1 '%_ fu;r'' *d<

winning elections 2L-

- 

:-.-1_!j^-_^c !L- -r__r!_ "4\".<_The statisticar manipulations of the election data 1+--.---
performed by Dr. Grofman, while inherently limited, are in fact, '\, b
helpful in an analysis of racial polarization. Among the

elections reviewed by Grofman, the defendants contend that the

1982 election results are the most relevant to present case.

4,



-1 1-

pr_ogr"=.= in Notth C".oIina has been so I3p_il _![a-t -pa!!9-r-45

w h_i c_h _ o c c u E r e d quen 
-4 -o r--1- -y e a r. s. ---eg e- rlaj- n q t--e c-c-u r-a-t e I y

reflect curren-t trends.-

The 1982 election results do not reflect any signifi-

cant degree of polarized voting. Primary and general elections

in Durham, forsyth, Mecklenburg and Wake counties produced

winning black candidates who received between 30t and 50t of

the white vote. At the same time, the successful white

candidares in these elections received only 40* to 6Ot of ? ffi*'
the white vote. The salient point, however, is that blacks

won these elections with combined black and white support.

Voting along racial Iines does not prevent blacks from

attaining elective office; therefore the degree of racial

polarization is not significant within the meaning of Rodgers
t/

v. Lodge.

It is curious to note that Dr. 'Grofman found every
election in which a black was successful to be aber-
rational. GROFMAN T. 144. Obviously when a system,
rule or def inition is EEher fraught with exceptions
or unduly complex because it must strain to reconcile
itself to the external reality it purports to explain,
the system or the definition needs to be reevaluated.
Dr. Giofman's sophisticated purely statistical analysis
has a whole grab-bag of elaborate nonquantifiable
appendages for explaining avray white support for blacks
and black electoral success.

1- 1- . o_.
at-4' 4.-2^ /v>

'4>.*Vt-'t 4- 2(._2^ ,1. 
_

A-'z7z'tt/- \\try
'<*7

t/



-L2-

c. The Majority Vote Requirement
y'1, n

Although North Carolina has a majority vote requirement d-
for primaries, this provision has no racial impact on election 4q4 %*-D44 t
to the General Assembly. Because t@ of the v e-

"g 
great.ry- i-nflates the importarrc" 

*_
Democratic primary there is Iitt1e support for eliminating 4,--. 'v

9*:\the majority vote reguirement. In fact a bill introduced in ."{
the General Assembly last session by Kenneth Spaulding, a

black Representative, merely would have reduced the require-

ment to 40t.

The plaintiffs' evidence regarding this factor is
deficient for the same reason their case must fail on the

issue of past discrimination in voting. Here again the

plaintiffs have mechanically proven the mere existence of a

factor listed in the Senate Report which in this case is
simply not relevant to the issue of vote dilution. A study

superimposing Representative Spauldingts proposal on all
legislative elections back to 1964 shows that no additional

blacks would have vron as a result of a requirement reduced to

40t. Furthermore, the present majority requirement was not

invoked in the Lg82 legislative primaries in any of the multi-

member districts which are being challenged. Thus, the majority\"/
vote requirement as it operates in the elections for the North J

\Carolina legislature has no racial impact and is not relevant I

*/
to the issue of vote dilution under Section 2.



-1 3-

D. The socio-economic effects of discrimination and politicalparticipation.

This criterion from the senate Report must be read

fully and in conjunction with its accompanying footnote rr4.
The Report states that a court may examine "the extent to
which members of the minority group in the state or poritical
subdivision bear the effects of discrimination in such areas

as education, employment and health, which hinder their
ability to participate effectivery in the poriticar process.',

s. Rep. at 29. (emphasis added.) Thus, a plaintiff may

properly introduce evidence, for exampre, of inferior health
care, €ducationr dDd income among black citizens. The rele-
vance of this highly prejudiciar evidence, however, is
contingent upon proof that the revel of participation by

blacks in the political process is depressed.

Note 114 confirms this reading of Factor 5. There,
congress expressed its intent that a praintiff need not prove

a causar nexus between disparate socio-economic status and

depressed politicar activity. However, social and economic -,

circumstances have no relevancy at arr to the issue of vote
dirution if participation by the group craiming dirution is
not in fact depressed. Note 114 does not relieve the plaintiffs
of proving depressed political participation, it merely relieves
them of proving the nexus between the two circumstances.



-14 -

The plaintiffs seem to have interpreted Factor 5 and

Note 114 to say that evidence of inferior economic and social

status is proof of depressed levels of participation in the

democratic process. The plaintiffs did indeed offer evidence

that blacks fared less well than whites on several socio-

economic measures. A witness offered as an expert in politicaL

sociology then testified that the lower oners economic status \ \
the less likely one is to participate in the political process. )/
LUEBKE T. 402.

Nothing in the record, however, supports the finding

that participation by blacks in electoral process of North

Carolina is depressed. Rather, the whole record reflects
vigorous participation by blacks in every aspect of political

activity. First of all, nearly every one of the plaintiffs'

own witnesses recited a series of Democratic party offices,
elective offices and appointe6 nolitical positions in which

they had served. The activities of just this small group of

people cast some doubts on any claim of either depressed

participation or unequal opportunity. The plaintiffst own

witnesses also testified about successful volunteer efforts

by black leaders and civic groups to increase voter regi-
stration. This too is hardly refleciive of a politically

d
qe
\.

G:
<''
- \)r-z- A-

€r.
3o

a*.'-L4
-?- 't

SpI

l=q
/O(
Z1ta

d



-15-

E. Racial appeals in political campaigns.

Plaintiffs introduced numerous articles, political
cartoonsr dnd political advertisements in an attempt to show

that raciar appeals have been used extensively in erectoral
campaigns in North carorina. Many of the exhibits were of
such age as to be admissible only under the "ancient documentsn

exception to the rure against hearsay and consequentry they

bear no reasonable relationship to the state of poritical
affairs in North Carolina today. Of the more recent advertise-
ments many were clearly non-raciar and on others reasonable

minds could easily differ as to whether racial inferences of
any kind could be drawn from them.

inactive black community. Furthermore, the power wierded by

such organizations as the Durham committee on the Affairs
of Black People, the Mecklenburg Black caucus, Raleigh-wake

citizens Association, the Brack womenr s politicar caucus and

the wake county Democratic Brack caucus, evidence a vital
and sophisticated brack organization. since the praintiffs)
have failed to prove that political participation on the I

\part of the bracks in North carolina is depressed or in any (
\

way hindered, the evidence of disparate economic and sociar 
)

status is not particularry rerevant to the issue of whether/
-/

the challenged legislative districts dirute black voting
strength in violation of Section 2.



-1 6-

The plaintiffsr testimony on this topic, which came

from Dr. Paur Leubke, was simply not credibre. Leubke insisted
that campaign slogans such as uEddie Knox wirl serve alr the

people of Charlotterr and 'Knox can unify this city" were

racially motivated. H€ also maintained that pictures of
black candidates in political ads were always racial appeals.

Most damaging to his credibility, howeverr wEls Luebkets

position that what might be a racial appeal in the mind of

one person could never be fair political comment in the mind

of another.

The defendants showed that the practice of running

one's own picture or t in campaign

literature is common in North Carolina politics. It is also

common for all the candidates of one party who campaign

together before the general election to circulate advertise-
ments with pictures of each of the'party primary winners.

Moreover, defendants have shown that nracial appealsn are

ineffective and eounterproductive. Dr. Luebke insisted, for
example, that the white candidates for the Durham County

Board of Commissioners made racial appeals throughout their
campaign advertising in 1980. tuebke found the slogan "Vote

for Continued Progress" to be racially offensive. Nonetheless,

2 of the 5 seats in that election were won by blacks and the



evidence of raciar appears in political ads, they have failed /t n*-
to show that they are anything but aberrations, occurring lf .*r_^
only in isolated instances and in association with a limited \ Aa:\ r_-e t.
number of campaigns. There is no evidence of any raciar appear) aaa\q

,a' ,7in any campaign for the General Assembly. .-_.o\, U
Nor is there any evidence that these racial appeals <-+ e-tr-\

have the supposed desired effect. on the record it a------- 
?t (> ro\ t

ppears . =6 
-U-\.-

that the voters of North Carolina do not respond to this *, ?*- ,ryt, -. 9 t -' /.2*campaigntacticandconSequent1yeventheraretru1yracia1}>
advertisement does not have the effect of limiting or decreasing *k
the opportunity for black citizens to be erected. Thus the I
evidence on this factor adds rittle to the praintiffs' claim

t

-17-

commissioners elected one of the blacks as chairman of the
County Board.

To the limited extent that praintiffs may have adduce}

that 'the present districting denies- bracks an equal opportunity
to register and vote and to elect candidates of their choice.

F. The Extent to which Blacks Have Been Elected
Bracks have enjoyed great success in gaining public

office at all levers of government. rn the most recent
erections for the Generar Assembly 12 blacks won seats in the
Senate and House of Representatives. Five of these legislators
were elected at-large in majority white multimember districts.
Two other bLack candidates, both running for their first
erective office, came within a hair's breadth of winning.



-1 8-

At the local leveI, 202 city councilmen and town

commissioners are black, with 108 of these having been elected

at-large in municipalities with majority white voter registra-

tions. Ni3.e-,!een black mayors are presently serving across
o/,r

constituencies. In addition, 30 of the 35 black county

commissioners in office vrere elected at-large in counties

with a white voting majority.. FinalIy, all three blacks who

have run for statewide judicial offices have, in fact, been

elected.

This record of success in elections goes far towards

refuting the allegation that blacks lack access to the political

process. Not only do*!lesl<s consistently win elections across

the stater they frequently win with substantial white support
--ts
in at-Iarge white majority districts. Just as the consistent

failure of blacks at the polls is.a powerful indication of

exclusion from the process, consistent success strongly

suggests equal access and opportunity.

G. Respons iveness

The plaintiffs have not seriously disputed that the

el.ected members of the legislature are responsive to the

particularized needs of the black community. The record is

replete with examples of the sensitivity and accountability

the state and six of them vron election from majority white



-19-

of elected officials to black members of their constituencies.

In its most recent session, the General Assembly greatly

increased the availability of voter registration. The budget

included an alLocation for sickle ceII anemia research, a

holiday honoring Dr. Martin Luther King was established, and

local legislation changing the method of election to the Wake

County School Board from a district system to an at-large

arrangement was proposed at the request of black leaders and

civic groups in Wake County.

In its discussion of polarized voting in Rodgers v.

Lodge, U.S. L02 S.Ct. 1335 (1982) the Supreme Court

noted that when a racial majority can win all the seats in an

at-Iarge election without the support of the minority, it is

possible for those elected to j-gnore the views and needs of

the minority with impunity. When this occurs, the members

of the minority are essentially excluded from the democratic

process because they have no rePresentative voice. It is

this very potential to shut blacks out of the process wj-thout

fear of political consequences which makes unresponsiveness

of elected officials one of the indicia of a Section 2 viola-

tion. In the present case blacks are not excluded from the

process by unresponsive white representatives. White candi-

dates need black support to win, and many black political

organizations regularly endorse white candidates. Consequently



-20-

white office-holders are held accountable by the black community.

Under these circumstances, the responsiveness of the members of
the General Assembly to the black citizenry further evidences

the effective participation of blacks in the political processes

of North Carolina.

H. Legitimate State Policy Behind County-Based Representation

The plaintiffs adduced no convincing evidence that the

state policy of creating multimember districts to accommodate a

county-based reapportionment is tenuous. The defendantsr evidencee
showed that, much to the contrary, this policy has- been consist-
en-tly appried since ,. Cin" contr"r"m
counties today, especially as the administrative unit for the

--_---derivery of most state services justifies the legisrature's
desire to maintain whole counties in the formation of electoral
districts whenever possible. In addition, the General Assembly

everysessionenactsa1argenumber.fuThisunique
aspectofNorthCaro1inagovernmentu"ffiucounty
representation which simply cannot be as weIl accomplished when

a county is divided among several districts or is internally
subdivided. The legitimacy of the state policy behind multimember

districts rebuts any inference of an intent to exclude blacks

from the political process.

The Senate Report states that the Committee did not intend

that these factors be used'as a mechanical point counting devicB.r

S. Rep. at n.118. Rather, Section 2 reguires the court to make

l^
ba- '71*(ffi,

q*2
LaZ\7zr



-2t-

a judgment, nbased on the totarity of circumstances and guided

by those rerevant factors in the particular case.n s. Rep. at
n.188. The statutory touchstone of this inquiry is whether
the system is open to full minority participation. Dove v.
Moore, 539 F.2d l-LSz (Bth Cir. 19761.

The praintiffst case rests not upon a denial of access

to the poriticar system, but upon the contention that success

of black candidates is not guaranteed. The plaintiffs contend

that multimember districts discriminate against blacks because

bracks usualry vote for bracks and ress than a majority of
whites vote for blacks. The argument continues that if certain
urban areas were divided into singre-member districts, blacks
would be guaranteed victory in a definite number of districts.
The relief requested obviously has nothing to do with providing
access to the political Process. The plaintiffs have essentially
asked this court to remove black voters and candidates from

the competitive electoral arena and to protect them from the
vagaries of politicar fortune. clearly, section 2 does not
require this. rn whitcomb v. chavis, 403 u.s. 153 (1971)

the court wrote:

As our system has it, one candidate wins, theothers lose. Arguably the losing candidates'
supporters are without representation since
the men they voted for have been defeated;
arguably they have been denied equal protec-
tion of the laws since they have no legisla-
tive voice of their own. This is true of



{+

-22- .

both singre-member and murtimember districts.But we have not yet deemed it a denial oi -- -

eguar protection to deny regislative seatsto losing candidates, even in those so-calrednsafe, districts where the same party winsyear after year.

This language is as applicabte to section 2 as it is to the
Fourteenth Amendment.

Conclusion

For the reasons stated herein the Defendants respect-
fu1ly request the court to deny the plaintiffs the relief
sought and to enter judgment in favor of the defendants.

RUFUS L. EDMISTEN
ATTORNEY GENERAL

Attorney General's Office
N.C. Department of Justice
Post Office Box 629
Raleigh, North Carolina 27602Telephone: (919) 733-3377

Norma Harrell
Tiare Smiley
Assistant Attorney General

Attorneys for Defendants

Of Counsel:

een Heenan McGuan

Washington, D.C. 20006
(202) 872-109s

eJ
K

vr
Attorney G
Legal Affa

Esilu ire
La\f Offices of Jerris rd,
900 Seventeenth Street,
Suite 1020



.:.{..

CERTTFTCATE OF SERVICE

I hereby certify that I have this day
Defendants I

States Post

Post-Trial Brief by placing a copy

Office, postage prepaid, addressed

Ms. Leslie Winner
Chambers, Ferguson, Watt, Wallas,Adkins & Fuller, p.A.
951 South fndependence BoulevardCharlotte, North Carolina.,. 2g202

Ms. Lani Gui_nier
10 Columbus Circle
New York, New york 10019

Mr. Arthur J. Donaldson
Burke, Donaldson, Holshouser & KenerlyAttorneys at Law
309 North Main Street
Salisbury, North Carolina 2gL44

Mr. Robert N. Hunter, Jr.Attorney at Law
Post Offi.ce Box 3245
Greensboro, North Carolj.na 27402

Mr. Hamilton C. Horton, Jr.Horton, Hendrick, and K.ummerAttorneys at Law
450 NCNB plaza
Winston-Sa1em, North Carolina 27ll1-
Mr. Wayne T. Elliot
Southeastern Legal F.oundation
1800 Century Boulevard, Suite 950Atlanta, Georgia 30345

served the

of same in
to:

foregoing

the United

-hlJlrd

This *" 7 day of October, 1983.