Appellants' Reply Brief

    at-
IN THE

Supreme Gourt of tDc 0HnitcD btatcs
Ocrospn Tpnu, 1985

No. 83-1968

Lecv H. TsonxBUBG, et al.,

v.
Appellants,

RelpH GrNclns, et al.,
AWellp*s.

On Appeal From Ttre United Statee District Court
for the Eastern District of North Carolina

APPETLANIS' BEPLY BBIEF

Lacy H. TnonNsuBc
Attomsy Genera)

JBnnrs LBoNeno
Counsel of Recmd

KerHlBpN HsnNAN
McGueN

LroNeno & McGueN, P.C.
900 fTth Street, N.W.
Suit€ 1020
Washington, D.C. 20006
(202) 872-1095

Jeups lVer,lecB, Jn.
Deputy Attornq General
fw Legal Affaire

TrABE B. Suu,pv
Nonue S. Hennet.r
Assistant Attorneys

Creneral
Attorney Creneral's Of6ce
N.C. Department of

Justice
Post Office Box 629
Raleigh, Nor0r Carolins

27ffiz
(gle) 733-7218

Courcel lor Appellmfs

PBESS OF BI'ION 8. A-DA-US, WAEEINGTON, D.C. (lC) tl?{rolt



IN THE

Supreme Gourt of tfe 0Hniteb btates
Octospn TEnu, 1985

No. 83-1968

Lecv H. Tnomrsumc, et al.,

v.

Rer,pu Gntclns, et al.,

On Appeal From The United States
District Court For The Eastern

District Of North Carolina

APPELLAI.ITS' REPLY BRIEF

The Appellees, in support of the opinion of the district
court, have advocated an interpretation of amended
Section 2 of the Voting Rights Act which is divorced
completely from the statutory langu4ge and, in large
paft, from the legislative history as well. The Ap-
pellees' most fundamental error is their assumption
that proof of the "senate factors" constihrtes proof
of a Section 2 violation. Even under this erroneous
interpretation of the statute, in order to rationalize

Appellonts,

Appell,ees.



2

the decision of the district court, the appellees. must

b5o, t; .r*lain away the electoral suecess of blacks

ir-"ff tfr" dtrtt.ng.d districts in 1982, obscure their

signifrcant success-Priqr tf 1992, and champion a def'

d;;;it 
"iaty 

p6t"tir.a voting that would condemn

til';;fid-u.tr:uiot in virh,lly every j,risdiction in

ttil ;;e'y in to.rt, state and national elections'

I. Proof of the "senate factors" doee not

constitute proof of a violation of Section 2

Subsection (a) of amended Section 2 states that'

"[n]o voUng . . : practice tt."U P. impole-d or applied

. . . in a manner iti.t, results in a denial or abridge-

;"rt "i the right . . . to vote on account of race or

;;i;; . . ." 4z-u.s.c. $ 19?3(a). In subsection (b)'

C;A;, ,p".in., thai the right to vote has been

;#tg;d or denied when racial minorities "have less

""*it-iW than other members of the electorate to

;'rfi;Dr6 in tt. po[qcal pTgcgss and to elect rep-

i"r.rtitiues of tr,.it choic6." 42 U'S'C' $ 1973(b)'

Th; the ultimate issue in a section 2 case is does

tfr. .frrif.nged po.ti.. (e.g', use- of multi'member dis-

;;;tt) ;;tul"t in'unequal e.llcto-ral opportunity that can

U. tetn.Aed by eliminating the practice'

The Appellees and the district court, however' read

r"[.L.Uori O) in , u*uonl and therelv eliminated the

obvious statutory requirement that there be a causal

i"f"tiontttip betieen'the challenged practiceil9 th'
ffifi;#qditv of electoral oppgrtuniw. This dis-

"rr&irUon 
6f ,oUr.ction (b) frorn-Jubsection (a) makes

tt ;;;;ibl. tot the Appellees to.,pt""ttl 
-Tlh^ 

their

L$;-ilposition that froof of ttre existence of the

Senatefactorsconclusivelyestablishesthatblacks
have less oppott -ity than whites to participate in

[he political'iorum and determine election outcomes.



3

This basic conception of Section 2 is embodied in the

Aopellees' stateme"t tt "t 
the Senate Rgpo$."speci-

f,Jffi;ffI-ii'ir.t"rs the presence of which, Con-
'ffiT#lil'* 

",,.,tl 
lar'rf ffi:!,$'e'fi#f ;,'H

[hereinafte, epp.*ii .l' i;-o}.2, lipp'Bl' 32'.App3r'
i4,- AilBr. r0i. Congrttt- did not outlaw the items

listed on pages ze-ig'it the Senate Repof nor did

il- J.rir. S.Ition i "t " 
punishment for those juris-

d#;;;-i" *ti.t tr,or. factors existed. The issue is

;;'*ir.tlr.; these Senate factors exist or even

*t.tt", if,ey have a discriminatory effect' They are

,"i.L*.rtJ of a stahrtory qriminal offense or a com-

;;il ;rt *f,.r.- froof of the elements establishes

ii;dil,tv. 'il. S.rrt" RtPo-{ specifically tFPt -h't. 1;;l a- iizutt i iV 
'.i'otr1a'a 

want'i'u" plaintiffs

do not enjoy .qrif Jectoral oppoittutity' th91 there

is a violation oi tt t stahrte' $'neg'-No'- 41?' 97th

6";g.,-il S.tt. at 28 [hereinafter S'Rep'J

Reliance on evidence such as substandard housing

and infant *o"t tity divertt-thg district court's at-

;;;Eom the i."ut irro.. In his dissent from this

Court,s summary 
-,ffi".,nce in Mississippi,-Rryubli.

can EneattUe iorural'ttne ts' B-rooks' 105 S'Ct' 416

Ged;Gti;. R;h;d"t "9t* that even where the

lower court .ott..iiy found that the Senate factors

;;;; piut.nt, it could be a total non sequitur to--con'

clude that past discrimination and its present.effects

"'resulted' ir, 'diffi;;' of miaorigy r'-oti1g strength

WWn tnp o*ptt* of tln redistri'ct*g. ?b?i2 Wc*
l,tijl toie s.cr:; 42"3 (emphasis in original). Justice

Rehnquist further wrote:

To the extent that less blacks vote due to past

discriminatt.;, that in itseU diminishes minority



i_-__-

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voting strength. But this occurs regardless of any
particular state voting practice or procedure._. . .
It is obvious that no plan adopted by the Mis'
sissippi Legislature or the District Court could
possibly have mitigated or subtracted one jot or
tittle from these findings of past discrimination.
r05 S.Ct. at 423.

In the present case, the record shows that in 1982

the challenged multi-member shrrchrres elected a total
of frve black legislators.r Two black candidates, both
running for public offrce for the frrst time in 1982,

came very close to winning, demonstrating the po'
tential for blacks to win more than a proportionate
number of seats.z the single member districts ordered
by the court, on the other hand, guarantee the elec'
tion of six blacks from these districts and virtually
assure that no more than seven blacks wiU be elected.
These statistics demonstrate that not only were the
court's findings on the Senate factors largely irrele-
vant to the question of equal access, but also that
the multi-member districts could not have been the
cume of whatever inequality of opportunity the court
thought existed.

It is undisputed, for example, that the median in-
come of blacks in the challenged districts is lower
than that of whites. This problem, however, is en-

demic to the entire United States and nothing in the
record demonstrates a relationship between this eco-

rForsyth County: 2 black representatives; Durham County: l;
Wake County: 1; Mecklenburg County: 1.

rMecklenburg County: Jim Richardson finished ninth in a raee

for 8 seats, 250 votes behind the 8th place winner; Mecklenburg'
Cabarnrs Senate District: James Polk ran 5th in a race for 4

seats.



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nomie disparity and multi-member districts. lhe elim-
ination of at-large elections will not as Justice
Rehnquist aptly wrote "subtract one jot or tittle"
from this socio-economic situation. See ailso, Collins
o. City of Narfolk, 768 F.zd 572,575 (4th Cir. 1985).

the Senate factor analysis advocated by the Ap-
pellees sheds little light on the ultimate issue of
whether the multi-member districts result in unequal
electoral opportunity. Most of the factors are simply
too remote in time to reveal anything about the po-
litical process today. Indeed, the factor analysis tends
to count against the state 9 times oru single fact: in
the past nearly every jurisdiction in the nation dis-
criminated, to some extent, against its black citizens.
Using this analysis, any electoral practice challenged
in any Southern jurisdiction would be found in vio'
lation of section 2. Indeed, the single member districts
ordered as a remedy by the district court could be
successfully attacked today on precisely the same re-
cord amassed below. In such a case the theory un-
doubtedly would be that, based on the totality of
circumstances (i.e., the Senate factors) single member
districts restrict the influence of black voters and limit
their potential to elect more than their proportional
share of legislators. Using the analysis advocated by
the Appellees the court would be compeUed to frnd
a violation of Section 2.

The Appellees' analysis is further flawed by their
assumption that multi-member districts are at least
presumptively violative of Section 2. See App.Br. at
2, 3, 20, 25. It is aciomatic that multi-member dis-
tricts are not per se illegal. White a. Regester, 4Lz
U.S. 755, 765 (1973); S.Rep. at 33. Moreover, the
appellees contend that single shot voting is inherentlyj,

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dilutive of black voting strength. App.Br. 59. firis
argument loses much of its force in light of Congress'
position expressed in the Senate Report that prohi-
bitions o4ui,nst single shot voting are indicative of
vote dilution. See S.Rep. 29. Itre Appellees, however,
want the Court to count against the State both the
fact that blacks could not single shot in all elections
15 years ago, and the fact that they can today.s Nei-
ther blacks nor any other racial or political minority
group are compelled to cast single shot votes in the
challenged multi-member districts. All citizens are free
to vote for a full slate, for one candidate or for some
number in between. The votes of black citizens are
not diluted simply they chose on the basis of race to
concentrate their votes on one candidate. Nothing in
the record supports the Appellees' inference that
blacks must single shot in order to elect legislators
responsive to their needs. On the contrary, black po-
litical organizations regularly endorse white demo-
cratic candidates because they represent the interests
of the black community. R.454-55, 464-65, 638, 855,
1234-36.

If single shot voting is inherently dilutive, the Ap-
pellees have gained nothing by virtue of their victory
below. Under the court-ordered plan, blacks in Dur-
ham, Forsyth, Mecklenburg, and WaJ<e Counties are

sNorth Carolina enacted an anti-single shot voting law for local
elections in specified counties and municipalities in 1955. It was
enforced urtil it was declared unconstitutional in L972 in Dun-
ston 1). Scott, 336 F.Supp. 206 (E.D.N.C. L972\. It has not been
enforced since 1972. At least since 1915, North Carolina has
not had an anti-single shot provision for nomination or election
of candidates for the North Carolina General Assembly. Stip.
91.



7

seg"egated into singre member districts where theyhave no choice butlo .ri on. vote and affect oneelection outcome.

. {inally, the Appellees, interpretation of Section 2Ieads to their contention that a firdid oi-r-iluuonof the statute is a factuar .on.t*i* 
-!r[j.it 

to nu.52. App.Br. 1_6. Appeltees ,r{ o, e"a"iii i. Cttyof Bessemer City, t,S S.Ct i"soa (t98si; t"",rppo"t
Ih:g position. Andsr*r, however, reiterates the basic
IoJtle of pullman-standnrd,- i. S*int, 456 U.S. zz,(1 982) that a district court's finairg 

-ri' 
airlr.iiii"to.yintmt is a factuar finding rgiJ".t to Bure b2. If sec-tion 2 reouired no mo"e than proof of the senatefactors, thln arguablL; ddl"; of d.ilution might besubject to Rule 

-52. \he ,tti,,it. issue in thir- 
"rr.,however, is whethe" *rrti-rn.ruer districts resurt inIess opportunity for bracks;ir;; whites to participate

T th. political process and to elect candidates of theirchoice. This is i mi*"a qo"ru*ir law and fact whichrequires the court to reach 
" .o .lr";;;;::j;

p *1. orlr* t a particulr, ,.r't?}:':*'{rflrtffi
has held in a variety of ,itor;;;, that such a deter_mination is.legal, lot f..toJ-'ie" Bose Cary a. Con-sumcrs Union of ,(tnited States, Ir,c., l}i-SlCi. igag(1984). Thus th6 .,cleariy-;;;;ous,, 

standard underRule E2 does not apply"to A.-Lse at bar.
II. The Electio_n of Minority Candidates Is aBecognized Indicator of Aceess to the poritical

hocees.

The. Appellees contend that the election of ,,some,,
minority candidates does nol .or.irsivery estabrish theexistence of eouallrotiti.rf .gnn"**iry They profferthis argument in order to discount the significance ofthe results of the 1gg2 elecUlrr. l, lggl, Durham



8

county, a B member^district, whigh has a brack votingage population of 88.67o, eiected r [r".['ilorlr.rt-ative. Forsvth 9o*ty, ; t ;;;u., irri*?.lr,i.r,has a btack voting-a;; ;dd#" n of ZZVo eteeted 2blac\ representati-vesl ll.-.f.f.rUil- Cil;; gmember diskict with a black 
"oUris "g. 

pii,rfli"iof Zbvo elected r brack r"fi"runt tive and a secondblack candidate sr.h"a-gtf, iio votes behind the 8thplace winner. In wake co*tv ,ur,.r. ir,. LrrJr.Ti**age population is Z\Vo, f biack representative waselected to a 6 membel aefega;on. In the Mecklen_burg-cabamrs senate Dstricl a-black candtffi;,,-ning for his first pullic offrce, finished bth in a raeefor 4 seats. Obviously, plopo"iiil"t ,.pr;;rt#; ,,better in B districu, 
-irfo 

;;-;;rporrionality in theother 2 districts 
in,E q:tion is silnind;iffi;re- thanthe "some" or ,,tokin,, ,r.*, ?escribed by the Ap-pellees. rvvu rrY u'E I

^ 
The Appelrees insist that the language of section2 supports their theory that tr," r-gag erections do not

9o*t: the portion o1 subsection O) o, *-fri.f, if,"Appellees rely states as follows:

The extent to which members of a protected
class have been erected to om.. ir-tr,.Ti"i."o.political subdivision is on. .i".ornrt"n.JTii.r,
may be consid.ered: provided, ffr"t notfring il til,section establishes a rig):t to Lave members of aprotected class erected in numbers .qr.Li" tr,.i.proportion in the poptilation.

This was included in the Dole eompromise as asubstitute for language in the Ho*. version whichstated that "[t]he fact that memu.r, oi-, *irlirygroup have not been erected in no*b.r, .q*i'i" irr.



I

group's proportion of the- Pgnulaqion shall not, in and

8i-iti"U, constihrte a violation of this section'" H'R'
R.p 

-ii-Zzt 
9?th Cong., 1st Sess. 48 (1981)' The

House langu4ge gave rise ta a great deal of concern

in the Seiate that the lack of proportional represen-

t"uon plus a mere scintilla of other evidence would

be suffrlcient to establish a violation. See, e.g. L Senate

H.*i"eF 516 (statement of Sen' Hatch); id' at 
-L438

iturti-[ny of Prof. Irving Younger). S-enator Dole ex-

ifi.itf, ,Lt A that the purpose of this compromise

["rgrig. was to ens,re that the stahrte wou]d not

U. Zon:tn ed to establish a right to proportional rep'

resentation and that undelTepresentation would not

;;d a. establish a violation where the totality of

ci"cumst nces demonstrated equal access' S'Rep' 194

(statement of Sen. Dole).'

The Appellees incorrectly assume that the language

of the di's'claimer is symmetrical. They reason that if
f".f U proportional rlpresentation does not establish

*.qoA'ra."tt to the process, then achievement of
proio*ional repres.ntition does not establish equal

i...r, to the process. The Senate Report, however,

directly states:

White tlw weserwe of min'arity elcctcd officials

is a recogniied itd'icatw of oncess to tlw Process'
the "resitlts" cases make clear that the mere

.,,The language of the subsection explicitly rejects as did.I7l,ite

*a ll. pioi."I, the notion that members of a protected class

h;;" ; tiglri to be elected in numbers equal.to t'heir proportion

,i tf,. poirt"tion. The extent to which members of a protected

class have been elected under the challenged practice or struc-

hrre is just one factor, among the tgla'lity of circumstances to

be considered, and is not dispositive'" S'Rep' 194'



10

combination of an at-large election and lack of

oiooortional representation is not enough to.in-
iJirt" tt rt ellction method. S'Rep' 16 (empha-

sis added)

The Appellees further rely on Zirurncr a' Mc-

K;;t*r:Zis r.za Pe? (6ttt Cir. rgzs) because, the

&p"U;t-a"r", iio thrt'.,t" the court ruled for the

;i";;fitr despite the fact that blacks had won two-

il,ri"d. of the- seats in the most recent at-large elec-

tilrf App.gt. 55 This statement badly-misrepresents

tfr. ir"tt of the ca-se upon which they rely' l..n Ziryner'

il;;lrt"tttrt cnArengeq qt at-larse,,tl:tti9-1 of,^a 9

*.*U"" school board in East Carroll Pansn \rbere

[ir"t, constihrted 5g7o of the population. fire district

."iiJfr"fa f; th. prrish. Suisiqtktlt to is-suancg of

the district corrtt 
-opinion 

blacki won 2 of 3 school

board seats up for eleetion in 19?2 under the stag'

ffi; ;; atiarge system. The Court of AppeSls on

i.fr"*it e en bani r&ersed the decision declining to

*o"ria"r-trre lg72 election results because the_y_were

ilpr"t of tf,u record. Tlte Z'i'mmor Cotrrt did not'

;6;.il*t .frirarte {or the plaintiffs de-spite plack

electoralo...tt.-Tte electoral suceess of blacks in

rir.i c"*oll parish was not dispositive because it was

not part of the record'

Likewise, all fte other cases titt-d Uy tt Appellees

fail to support tii.ir ari* that electbral success of

;J;cfi i, irit dispositive of the issue of equal access.

ii uott"a states'a. Marengo cmnty carnrnisti,on,'137

F.Za i'a6 (llth Cir- rggil 1 blac[ had been elected

;;;;ry offr." in tr,. hisiorv 9f the countv' 
-In 

nei-

*"r- X'trLsqy o. Boaril of Suryltisars tHh'ds Cauntv'

il F- za isg (5th cir. {gtt) nor Unitnd Statts a'

goia of Su.eenirlors of Fon'est Coun'ty' 571 F'zd 951



11

l#hli,fl':rffitff H3;t,$3-ri"#1"^t
elected to the rtl""'r[t]ti-9tW. c"Ycil' but he was '

feated in his uia"rii'i"tLqqgt, ln Waltnne u' Hause'

b1E F.zd op tuti"bi,' ie6i *"tt u'a been 1 black

alderman in u,JLi'";' t'i'Pp''uo[ t" was elected

in 1e68 whe' ' ;;;;-:'1T., candidate withdrew

from the election [- late to t"r. tit n"t-:l-o,utd
from the ballo'" frJ ;;;t div'9rted so manv 'yhite
votes that a urr"['*oriE ; ';tttok. of luck'" 515

F.2d 622.Finalln-in Velasqnz '' Clty of Atnlsrw' 725

F.2d 1012 ts'r"Cii: i984) the onlv 3 minoritv can-

didates to be 'otlJ"n'i 
y'lry trJ"a and controlled bv

ffi ffi ;;i,,tT#;i}XIti"X:':',1lLX,"H;
**:;';:xil"?j"#"1;J;t"rv::::T#";i"'
oeriod of ti,nt"lij*i"y1;u:ytg proportional rep-

ffi;;;;; t" gii s-tuattt'eed districts'

The Appellees further -attempt 
to belittle the suc-

cess of black candidatet UV aTi"i"g 
the statewide

black populatiJi'percentage.with the racial composr-

tion of tt. "r,liiJc"ittr 
qsfmblv' App'Br' 2' 70'

n. 74. rti' 't'Tu'ti""'it- "u*rillt 
"itrelLvant 

-to the

oresent l"*.,if 'il;epne}eg1 tt'iu""gta specific dis-

^rricts_th.V aii il ;ffik tf,. tt"t"iuid. appo-rtion-

ment. Five disht# 'lt pt"-tentlv at issue: the House

districts . 
"*iii'i'?it:tvth; 

uJttd*u*g and wake

Counties and the Mecklenb*.S-C'U"*s Senate dis'

trict. The appropriate to*p"iton is on a district by

disrrict basis. 
"ifiiir*o.- i;:;;Pr:-arz u.s. ?55 (1e73)

(vote dilution ;;;; re$ure 'o "int"nsely local ap-



' :. . .:: Jilffi,rEUlIF*tI5.
.. . j t

a--a.6>r:..t.r .-.

L2

oraisal.") the Appellees' statement that a 1070 of the

lrf'fll*;ti#*rr*Lr****
*ia". It has none here'

Contrary to the Appellees' representations' the L982

election ** oof ;'ifr;;#;d;-h't' arotmd that

one might .onttoiJ-tf'"t tftt-t"t'ttt were an aber'

ration.6 Black #ara"t"J i' tt" districts in-question

have enjoyed cin'iatoUft- *t*t since the early

19?0s. see Suptl'iil:i6:-r" utllr'"nt Corxrtv' which

is one third ur".r., t i'"ro.pt., one black has been

elected to its ti'i}';;;ffiitrieatio" in every elec'

tion since 19?3'

Over the past 10 years blaeks have consistently

achieved ,,Utt'otiJ Li*tg*f t"t"tt in the chal-

ffi;*.E:T#:,#flT',f:ull"lJiHtff ff;
ffiHT#-iippo't"'iw., *gil t't'" 

'e"o'd 
shows

that over the l6ng nrn' the p*!tt ttlrns out fair

results.
III. Racialty polarized voting has legal eignificance

"' 
H:il*Iu:::J1?;li'.',}'[.::':""] 

brack

rhe Appeu"er.ont"rd that "ilHJ il*S;:Ifi?
o..*t *ht"tutt blacks as a i

G-" "o*t 
"concluded" neither.that the results of the 1982

erection ""," *m&.*i:";;*: trii"ffi*lf":y:Ji[
s#* HIf" tflTtrjiJ fut{;:S g:n* in 1e82

only to defeat "'iffi#;: 
O* qnit""i g' r0' thev can cite

nothing in trre ;;J; ;"pp"tt ffi; tt#*ent" ltrev refer

inst€8d to the rffi"i + ![:'*tg; court's opinion in which

I.i"6,i-..-,#ffi #^1;3,{:;f :';tt*"i'o"thistopic
were incondusir



OtI
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13

than whites as a group. App.Br. 72 Using this stand-
ard, every election in this counhy, includinq P-resi'
dential elLctions, would qualifu as racially polarized.

Ihe Senate Report, however, without achrally defrn-

ing polarized voting, states that it has significance in
a Section 2 ease when "race is the predominant de-

terminant of politcal preference." S.Bep. at 83.6 Ap-
pellees' regreision analysis failgd to prove that-race
is the predominant or even a dominant determinant
of political preference.

The bivariate regression analysis advocated by the
Appellees' e:rpert and accepted by the court, does not
pr&e that race is determining election outcomes.? A

cSu a)so, Tenozas o. Clcma*s, 581 F.Supp. 1329, 1352 (N'D'

Tex. 1984) (,'ethnicity of the candidate or the electorate deter-

mines tIe outcome of political events"); Joriln:n' o' Winlzr, No'
GC82-80-WK-O (N.D. Miss. April 16, 1984) (majorif of voters

choose their prefered candidates on the basis of race); cross
t. Ba.oter,6oi f.zd 8?5, 800 n.8 (5th Cir. 19?9) (where "rzce
plays. . .. prtt in voters' choices"); Politicd Civil Vottrs Or
gooiroti-, a. City of TaneL,565 F.Supp: S8, 348 (N'D' Tex'

igag) ("RaciaUy potirizea voting occurs when race is a predom-

inant ibctor and- influence in voter choice"); (Joncs a' Cify of
Lubbock, ?30 F.2d 239, 294 (5th Cir. 1984) ("Tte inquiry is
whether race or ethnicity was such a determinant of voting

-preference"); U.S. o. Morengo Co. Comm., stlpra, 731 F'2d at-isoz 
("mce is tle main issue in Marengo Co. politics"); Lee

County Bra:ruh NAACP o. City of OpeWa,748 F.?i 1473, 1482
(Ilth Cir. 1984) (+roting from Jorcs a. City of Lubbock, $LYra

at 234).
?Appellees argue that the Appellants did not contest the ad-

equacy of their expert's methodology in the district court' This

is'simply inconect. The Appellants' e:rpert testified -tfrat al'
though biuariate regression analysis was cortmonly used in 

-vote
diluti--on sases, it was inadequate because it failed to control for
all the other obvious variables such as age, incumbency, and

\



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1

t4

regression anarysig is a device which measures rera-
g'.Hit',ihlHti!:.ffi *r;i*i*,,1*.f:
See 80 Col.L.Bev.,?OZ (1gg9). However, tfr"iegr.ssion
analysis retains thg p1oqe"ti., *rociated *itr,'ii onrvif one has in fact incruded a[ the variabr..lilr.rv t"have an effect on.the d.p.rd.;t variable. Id, at 704.In other words,^th9 ,gr.rrion model must mirror
ryality. In Dr. Grofmanl. ,od"t 

"u *aartJ, ,r"fungible but for the distin*rfri", .f,r"".t.JJU. otrace. In reality, .however, 
-candidit.. aif.i'on t}r.issues, th-9y IivL in ditrerenir.EfrU"rto"ar,'tf,.i U"-Iong to differelt,political pr.ti"r,-espouse a variety

:.f r.Jr+ous beliefs, and have ur"ity aif.i.rt Joo-
{iot"l backgrounds. U these variables were in factdetermining, to.some. extent, election d;;;;;, theintroduction of them into td regression moder could
:rryt*ltly reduce the value oi'tt. .oo.i"uon loer-ficients derived lolp..._ Srr, uiirn y-i.-iiit," aao
I:lury. BB8, 862 (N.D. C". igsa),rffd,"r5li.ili azz(5th Cir. l98b). Moreover, th; Ipp.U;;s-,-argffient
that a multivariate r.gr"rrio, *ai:il i"qri"E, ,"t"dilution nfaintitrs- to p-rove tt " int"nt of the voterscannot withstand even cursory examination. uoru-variate analysis measures precisery tl,e same thi"; 

".a, bivariate regression: t*r" ,rtot|," ilp,"; ifrr" in-stance, between election outcomes and'a gi";'r*i-
able. It does not purport to--di..or"" motives. Itmerery ensures that the rerationships pila.l.d'ul'*.
model will have a certain validity because the modelis based on reality

placement on the HIo!. n. fAgZ
expert was eross-examined on his fail,re to tesi ro, "if oti."variable but race. R. l??.



l6

According to the Appellees the district court found
polarized uotirrg when 1'a substantial -eno"glh -number
irf *Uit citizens do not vote for black candidates, so

that the polarization operates, urder the election

method in questioD, b -diminish the opportuni? of
black citizens to elect candidates of their choice."

App.Br. 72. Even if the court had developed such a

standrrd, which it did not, it would not support a

frnding of polarized voting in this case. In the 1982

electiolns the most recent and therefore most reliable
indicator of current voting trends, blacks enjoyed a

higher success rate than whites. In Forsyth Cg*ty,
foi example, 11 candidates ran in the democratic pri-

mary: 9 whites and 2 blacks. Of these, 5 were-suc-

..rriolt 3 whites and 2 blacks. See Pl. Ex. 15(e), R'85,

112. In the general election, 8 candidates ran for the

5 seats: 6 whites and? blacks. SeePl. Ex. 15(f)' R'86,

112. Of these 3 whites and 2 blacks were successful'

/d. Thus in the democratic primary whites had a 3390

success rate while blacks had a 10070 success rate.

In the general election, the whites had a suecess rate

of 5090-while that for blacks was again 10070' Sim'

ilarly in wake county 5 of 14 whites were successful

in tire democratic primary while the only black 9an-
didate also prevailed. See Pl. Ex. 17(d) R' 85, 112'

In the geneth election, where 5 out of 10 whites lost,

ftre I biack candidate won. See PI. Ex. 17(e), R' 86,

112. In Durham and Mecklenbug Counties as well,

blacks have as good or better rates of success than

white candidates. See PI. Ex. 14e, R. 85, LLZI' Pl' Ex'
14(d), R. 86, 112; Pl. Ex. 16(e), R. 85, 112; Pl' Ex'
rqAi, R. 86, LLz. lt is obvious that black voters in
the cirallenged districts do not, as a result of polarized

voting, have less opportunity than whites to elect can-

didates of their choice.



I
L

l6

CONCLUSION
For the renson stated herein and in Appellants, Brief,
the decision of the united states Distriit court below
should be reversed.

Respectfully submitted,

Lecr II. Tuonr.rsuRc
Attamey Gm,eral

JgnRrs Lnor.lano
Csunsel of Recwd

I(atur,ppN HpnNer.l McGuaN
LroNeno & McGuaN, p.C.
900 17th Street, N.W.,
Suite 1020
Washington, D.C. 20000
(202) 872-10e5

Jaurs War.r.acu, JR.
Depu,ty Attomey General far
Legal Affairs
Tnnr B. Smlnv
Nonue S. Henner,l
Assistant Attorneys General
Attorney General's Offrce
N.C. Departrnent of Justice
Post Offiee Box 629
Raleigh, North Carolina ZTOOL
(91e) 733-7278

Attarneys fw Appellants