General Assembly of North Carolina House Bill 7 - House Districts

    No 84-627

nn*ssuprrure $.srfftsf thr lilnilri Stutrs
Octosm Tnnu, 1984

Crry CouNcIr, oF tnn Crtv or CHtclGo, PtsTITIoNEB

u.

I\{-ans Kntcnuu, ET AL.

oN PETITION FORAW&IT OF CER?IORARI TOTEE
ANITED STATES COART OP APPEALS

FORTHE SEVENTH CIRCAII

BBIEF FOR THE IINITED STATF^S
A.S A]VICUS CURIAE

Ru E. T.r'rr

Solititor General

I[M. Bnc,DroRD REYNoLDS
A s sistant Attorncg Gennr al

Cgmr,ns Fnmo
D eputu Solici,tor General

Cnenros J. CoopsB
DepttU Assistant Attorneg General

Mrcn.rsLW. McColugl,t
Assistant to the Solicitor General

Departmen,t of Justice
Washington, D.C.2O53O
(202) 633-2217



QUESTION PRESENTED

Whether the district court abused its remedial discre-
tion in declining to create certain super-majority black
and Hispanic wards as a remedy for a violation of Sec-
tion 2 of the Voting Rights Act.

:$: ii.(i:*
,(." .*,,t:

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TABLE OF CONTENTS

Statement

Argument

Conelusion

Pago

1

TABLE OF AUTHORITIES

Cases:

Beer v. United States,425 U.S. 130 .-....-.---- 10, 18

Brooks v. Allain, No. 83-1865 (Nov. 13, 1984),
aff'g No. GC82-80-WK-O (N.D. Miss. Apr. 16,

6

20

1984)
Burns v. Riclto.rilson, SS4 U.S. 73
Cita of Lockhart v. Uni,ted States,460 U.S. L25 ..

Cita of Rome v. .Uniteil States,446 U.S. 156 --....--.-
Connor y. Fittch,43l U.S. 407 .-. ...-....
General Bui.lding Contractors Ass'n v. Pennsyl-

aan'ia,468 U.S. 375.--------... 15-16
Hills v. Gautreau*,425 U.S. 284 -------..-.. 16

Maior y. Treen, 475 F. Supp. 325 -......-.-. 17
Marshall y. E,luards, 682 F.zd 927, cerl. denied,

442 U.S. 909 _.._......- t7
Mississippi v. United, States, 490 F. Supp. 569,

aff'd, 444 U.S. 1050 10

Seo,mon v. Upham, No. P-81-49-CA (E.D. Tex.
Jan. 30, 1984), aff'd sz.b nnm. Strake Y. Searnon,
No. 83-1823 (Oct 1, 1984) .,...--.--.--11, 12,15

Shnyer v. Kirkpatrick, S4l F. Supp. 922, afr'd, 456
u.s. 966 17

Uni,ted Jewish Organizations, Inc. v. Carea, 430

11, 16
8

18
8

t7

u.s. 144
Upham y. Seatnon, 456 U.S. 37.-...-.--...-.-
Whitcomb v. Clmais,403 U.S. 124.--..-----.-.
WAche v. Mad'ison Parish Police Jury, 635 F.Zd

1161 ..-._.-._

t2
16

13

8

(m)



Amend. XIV
Amend. XV

42 U.S.C. 1983.---...-
42 U.S.C. 1985

Ill. Rev. Stat. ch. 24 (1941\ z

2

lnllye Suprrm t $,nurtrf ftr lflnitpil $ttttrs
OcroBuR TPnu, 1984

No.84-627

Ctrv CouNCIL oF rue Ctrv or Crucnco, PETITIoNEII

a.

Mens KnrcttuM, ET AL.

ON PDTITION FOR A WRIT OF CfrNTIORANI TO THE
UNITED STATES COI]RT OF API'EALS

FOR THE SDVENTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE

The solicitor General submits this brief in response to

the Court's order inviting a brief expressing the views of

the United States regarding this case.

STATEMENT

1. Chicago is divided into fifty wards, each of whieh

elects one alderman to the City Couneil. See Ill. Rev'

Stat. ch. 24, 92l-96 (1941). The 1980 Census reported

that the overall population of Chicago was 3,005,072,

with 1,299,55? @37r) whites, 1,197,000 $9%) blacks,

and, 422,063 (14%) Hispanics. Since 1970, the white
population had fallen by ?00,000, and the black and His-
panic populations had increased by 95,000 and 175,000,

iespectively (St'ip. Facts 10-11). The ward distrieting
plan, which was adopted in 1970, required revisions.

City officials began to draw a reapportionment plan in
1980. The drafters of the plan stated that they tried to
draw compact and contiguous districts and tried to keep

all incumbents in separate districts. Each incumbent
alderman received a proposed districting plan for his

( 1)

Iv

Constitutions and statutes :

U.S. Const.:

Page

Ill. Const. Art. 1, $ 2 .------------- 2

Voting Rights Act,42 U.S.C. 1971 et seq'z

E 2, 42 U.S.C. 1973 ----------- --'---'-'-'--'-'-'r'assim

$ f, aZ U.S.C. 1973c '-'-- '- 10, l8

2
2

2
2

$ 21-30

$ 21-36

Miscellaneous:

Vol.1
Vol.2

128 Cong. Rec. (dailY ed.) :

p. H3841 (June 23, 1982) 18

p. HegAa (June 23,1982) 12

p. SOOaZ (Juno 10, 1982) t4
p. SOOff (June 10, 1982) t4
p. SOZ1Z (June 14, 1982) 14

pp. 56?17-56718 (June 14, 1982) " 14

p. SOZZS (June 15, 1982) 14

p. SOgOf (June 17, 1982) 14

p. SOSOZ (June 1?, 1982) 13

p. 56964 (June 17, 1982) ---------------'-'- 14 I

p. SZffO (June 18, 1982) 14

p. SZtfS (June 18, 1982) 14

S. Rep. g7-4|7,97th Cong., 2d Sess. (1982) '--'14, 15' 16, 18 
I

Voting Rights Act: ieorings Before th'e Sub- I

corlrn. on the Consti,tution of the Senate Comm' 
l

on, the Jud,iciara, g?th Cong., 2d Sess' (1982) :

10, 18



2

own ward, and revisions in the proposal were made.
Under the final plan adopted on November 30, 1981, 28
wards had white majorities of the voting age population,
1? had. black majorities, two had Hispanic majorities,
and three had no majority of any racial group.

2. In three class actions filed in the United States Dis-
trict Court for the Northern District of Illinois, black
and Hispanic plaintiffs alleged that the plan diluted mi-
nority voting strength in violation of Section 2 of. lhe
Voting Rights Act, 42 U.S.C. 1973, the Fourteenth and
Fifteenth Amendments to the Constitution, 42 U.S.C.
1983, 42 U.S.C. 1985, Seetion 2 of Artiele 1 of the Illi-
nois Consbitution, and Ill. Rev. Stat ch. 24, $ 21-30
(1941). The district court consolidated the three actions.
On September 20, 1982, the United States intervened as
plaintiff in the consolidated action.

Plaintiffs put on evidence to strow that the final plan
divided some minority communities, plaeing significant
concentrations of minority residents in majority white
wards. One area largely populated by Hispanics-the
"north" or "northwest" side-was divided among five
wards, Ieaving only one ward (Ward 31) majority His-
panic in voting age population. Another Hispanic area
of the city-the "near southwest giflg"-1psg divided
among three wards (1,22,26), only one of which (Ward
22) had an Hispanie voting age majority. In addition,
nearly all of the black residential areas on the south side
of Chicago that bordered white residential areas were
placed in majority white wards, while no white area on
tho outside border of a white residential coneentration
was placed in a majority black ward.

Plaintiffs also put on evidence relating to the history
of racial voting patterns in Chicago. The evidence showed
signifieant racial bloc voting, particularly among whites
(Tr. 1722). The evidence also showed that, historically,
the black and Hispanic populations in Chieago had lower
registration rates than the white population and turned
out to vote in proportionately ferner numbers. See DX
221; w also Tr. 221-222,238, 1628,3?13. Prior to 1982,

3

white registration rates were generally between 78% and
85% of voting age population, while black registration
was between 70% and 80%. The white turnout rates
were generally near 50% of voting age populatrion; the
black rates nearer 35% (DX 221). The Hispanic regis-
tration and turnout rates were generally one-third to
one-half of the white rates (see also DX 156).' However,
more recent evidence from the 1982 gubernatorial election
and the 1983 mayoral election, and nationwide trends at
the time of the 1984 presidential primary, "indicated a

marked increase in black rqgistration and tttrn-out" (Pet.
App. 36 n.21). There was also evidence of a history of
discrimination against minority group members in the
City of Chicago. Witnesses testifietl about historical dis-
crirnination in housing (Tr. 1317), employment (Tr.
132g-1324), and schools (Tr. 3332).

In an oral opinion delivered on December 2t,1982, the
distriet court rejected plaintiffs' argument that the redis-
tricting map was drawn intentionally to dilute minority
voting strength (Pet. App. 47-48), but found that the
plan violated Section 2 of the Voting Rights Act because
it decreased the number of blaek majority wards from
the number that had prevailed in 1980 under the 1970
districting plan (zd. at 60). The court held that "blaeks* * t had acquired a status as a minority group which
entitled them to have representation in 19 wards in the
City of Chicago" (ibid.) and that Hispanics should "be
accordetl the opportunity to have an eleeted representa-
tive in four wards where they have a majority" and one
ward where they constitute a plurality (id. aL 64).

While agreeing that the City Council's plan was in vio.
Iation of Section 2, the eourt rejected the plaintiffs' argu-

l Some witnesses attributed the lower electoral participation of
blacks and Hislnnics to their lower socio-economic lrcsition in
Chicago (Tr. l6f7-1618, 2593). There was also testimony that
minority interest in electoral participation would increase when
the minority lnpulation in a ward was large enough to make it
possible for the minority vote to play a meaningful role in an
election.



ments that the various instances of ward boundary
manipulati6n-"f12gf,uring" and "packing"z-violated
Section 2. "I do not eonsider that fragmenting of the
bla.ck or the Hispanie minority 'is a violation or even

very great evidence of a violation of the equitable prin-
ciples of Section 2. Pretty much the same thing is tme
with respeet to paeking" (Pet App. 58-59). The eourt
commented that "tflragmenting ' ' * is really a step

toward integration and paeking 'is a step toward segre
gation" (id'. at 59 ) . The court also stated that "the pack-
ing is a result of those ineumbents who wish to protect
their incumbeney, protect their turf" (ibid.).

The court ordered the defendants to revise six wards
(Pet. App. 62-66), and stated that the new minority
wards need not have any more than a majority of black
or Hispanic voting age population (PeL App. 63). How-
ever, the court noted that because there \ras a substan-
tial number of Hispanie non-citizens in Wards 22 and 26,
it was necessary for the defendants to create districts
about 55/o Hispanic in voting age population in order to
give Hispanics a fair opportunity to eleet candidates of
their choice in thoee wards (Pet App. 65).

When the defendants submitted their redrawn plan on

December 23, the eourt approved Wards 15 and 37,
which, as redrawn, gave blaeks voting age population
majorities of 52.6/. and 56.2/o respectively (Pet. App.
76-?8, 111). The court rejeeted the defendants' proposal
to create only three voting age majority I{ispanic wards
(Pet. App. 79-83, 111-113). Contrary to its earlier in-
struetions, however, the court deeided that despite the

,presence of non-citizens in some areas, a majority of
voting age population would be sufficient to give Hispanics

2 "Fracturing" occuro where a cohesive eommunity that would
be likely kr be included within a single ward under a neutral dis-
tricting plan is split among two or more wards, thus diluting the
voting strength of members of the community. "Packing" occura
when ward boundaries are artificially drawn so as to include an
unnaturally high percentage of a diefavored group within a eingle
ryard or wards; this "waste$" the votes of the super-majority and
diminisheg the group's overall influence on the electoral prccegs.

6

the potential to a^ffect the election in those wards (Pet.

App. 120-127). On December 27, the court approved a
final plan, creating four wards with Hispanic voting age
majorities: Wards 22 (69% Hispanic),25 (59.5%),26
(50.09%), and 3l (50.6%).

3. The court of appeals affirmed the district court's
finding of a Section 2 violation,3 but suggested that the
scope of the violation may have been broader than that
recognized by the district court. While the district court
found a Section 2 violation on the basis of "retrogression"
and rejected plaintiffs' claims based on the "paeking and
fracturing of minority communitie$," the court of ap-
peals expressly eoncluded that there was a violation
"based on retrogression and, on the manipulation of racial
voting populations to achieve retrogression" (Pet. App.
14 (emphasis added) ).n The court of appeals did not,
however, enter substitute findings of fact or conclusions
of law on these points, but simply referred approvingly
(id. at 20-2L) to plaintiffs' "allegaiions." The court also
found it "unnece$sary to make a formal finding that the
1981 City Council map constitutes intentional racial dis-
crimination" (id,. at 21) because the need for such a
finding was eliminated by amended Section 2; nonethe-
less, it noted that there was "strong evidence of inten-
tional discrimination here as well" (Pet. App. 16).

The court of appeals then turned to the issue of rem-
edy, stating that the "most significant aspeet" of the dis-
trict court's remedial order was its "determination of
what eonstitutes an effective majority for a minority
group within a particular ward" (Pet. App. 24). The
court stated (id,. at 33) that

[a] guideline of. 65/o of total population has been
adopted and maintained for years by the Depart-
ment of Justice and by reapportionment experts and

3 The United States did not participete in the court of appeals.
{ The court of appe,als criticized, as a matter of law, the district

eourt's rationales for rejecting reepondents' claims of packing,
fracturing, and boundary manipulation. Pet. App. 18-21; see note
16, inlra.



6

has been specifically approved by the Supreme Court
in circumstanees comparable to those before us as
representing the proportion of minority population
reasonably required to ensure minoritries a fair op-
portunity to elect a candidate of their choice.

The 65/. figure is derived, the eourt explained, by aug-
menting a simple majority with an additional l5/o "cor-
rective" t 5% to compensate for the minority group's
typically lower average age, 5/o for its low voter regrs-
tration, and 5/o for its low voter turnout (Pet. App. 33).
The court held (id. at 29) that the district eourt's "fail-
ure to consider carefully all of the factors which ar^e
present here as in comparable situations and which have
led other courts to employ sueh a corrective * * * was an
abuse of discretion." While aeknowledging that some
other "corr.ective" might be appropriate if supported by
reliable statistical evidenee (id. at BO & n.21, 41), the
eourt of appeals stated that "when reliable, determina-
tive statistics are not available, * * * the district court
should give careful consideration to the 65/o figwe or
some variation of it" (id,. at 36). The court also held
that there should be an additional "appropriate corree-
tive for non-citizenship" in the Hispanic wards (id,. at B3
n'19)'o 

ARGUMENT
At issue in this case is the remedy for a proven and

unchallenged violation of Section 2 of the Voting Rights
Act, 42 U.S.C. 1973. The principal question is whether it
was an abuse of the district courb's remedial discretrion,
under the circumstances of this casg to approve a reme-
dial districting plan creating certain wards in which the
minority voters constituted little more than a voting age
majority. The court of appeals rever.sed the district
eourt's order, and required, inter alia, that on remand
the district court "seriously consider,' adopting a ,,cor-
rective"-either the "widely accepted 65/o guideline,, or

6 The court of appeals rejected respondents' argument that mi-
nority voters are necessarily entitled to restoration of pre-lgg0
population majorities.

7

another corrective based on reliable data--to create the
"super-majorifies" needed "to provid e effecti.tse majori-
ties" for minority voters (Pet. App. Zg, 4L-42 (emphasis
in original)). This decision raises issues of great im-
portance to enforcement of newly-amended Section 2.

Nevertheless, we do not believe that the Court should
review this case on the merits in its presenf posture, for
three reasons. First, the issue princifally raised by peti-
tioner at this interlocutory stage may be resolved ,rtir-
factorily on remand without need for this Court,s inter-
vention. Second, the decision of the court of appeals is
clearly correet ,in part, and a remand to the clistrict
court is neeessary and appropriate to remedy deficiencies
in that court's findings. Third, because the district eourt,s
arralysis of the precise nature of the uiolafrion was flawed,
the question of remed,y here is hypothetical and prema_
ture.o

l. Petitioner has offered statistics reflecting that city_
wicle voter registration and turnout among blacks was
comparable to or even exceeded that of whiles in recent
elections. DX 22L, Z4B. According to these figures, in
the 1982 gubernatorial election black voters registered
and turned out at rates of BE.g,% and 86.1 /, of. ihe vot_
ing age population, respectively, while the comparable
figures for white voters were 77.8/o and b6.g;/,. On
remand the district court is charged with determining
whether these statistics are accurite, reliable, and sig-_
niflcant (Pet. App. gZ & n.l8). If the district .orit
accepts petitioner's statistics as reliable, there will be no
need for this court to consider the principal question
presented as it is now framed. Even assuming tiat the
ordering of "co*ectives" for low minority voter registra-
tion and turnout may under some eircumstances be an
appropriate remedial measure, it surely coulcl not be jus_
tified if minority voter registration and turnout were
' 0 we take no position on a fourth potential reason why certiorari
should be denied, i.e., the alleged incapacity of petilionc" Cit,
council to file this petition through private counser, in the absencl
of a city couneil resolution. That question is one of state raw.



8

comparable to that of white voters. The interlocutory
posture of the case thus argues against certiorari.

2. The court of appeals correctly concluded that the
district court failed to take into consideration, when
evaluating the political strength of Hispanic voterg the
presence within the wards in quwtion of persons who are
not yet citizens and are thereforre ineligible to vote. Peti-
tioner claims (Pet. 25) that "such a proposition has no
legal justification." However, for purposes of analysis
of voting strength, non*itizens arre equivalent to persons
too young to vote, and should be treatcd in the same
fashion. Sx City ol Rome v. United States,446 U.S. 156,
186 n.22 (1980) ("[c]urrent voting-age population data"
are probative beeaus€ they "indieate the electoral poten-
tial of the minority communit/'); see also Wyche v.
Mo.d,ison Parish Police J*A,635 F.zd 1151, 1161-L162
(5th Cir. 198f ). To include persons ineligible to vote on
account of non-citizenship in the statistical pool would
significantly overstate the dqgree of Hispanie "eleetoral
potential." See Btnns v. Ri.chnrdson, 384 U.S. 73, 92-93
(1e66).

The distriet court itself recognized the need to consider
the non-citizenship Ievels in the Hispanie wards (Pet.
App. 65); but in approving a remedial map it treated
as majority Hispanic two wards with Hispanie voting age
population majorities less than 51/o. The court of ap-
peals remanded on this issue to permit the district court
to eonform its remedial order to the standards already
enunciated by that courL See PeL App. 32-33 & n.19.
We discern no re:rson for further review of this question.

3. The remedial question posd in connection with two
black wardg Wards 15 and 37, is more diffieult and com-
plicated. The district court determined thai these wards,
which were majority blaek under the 19?0 map but ma-
jority white under the City Council's 198I" map, should
be restored to majority black status (Pet. App. 62, 7l).
In approving a remedial redistrieting plan proposed by
defendants, however, the court deLermined that voting
age population majorities of 52.6% and 56.2/o, respee-

I
tively (total population majorities of 60.1/, and 67.7%),
were sufficient to constitute these wards as majority
black and to remedy any Section 2 violation. The district
court sfated (Pet. App. 63) that "there is no statistical
or objective evidence in the record that a minority is en-
titled to or should have more than a majority of the
vo[ing age population in order to have a reasonably fair
opportunity to vote for candidates of their choice or even
to elect candidates of their choice." The court stated
that evidenee presented by "one of the defendants' ex-
pert witnesses" satisfied the eourt "that when the oppor-
tunity arises or when the incentive is presented, it is not
necessary for a minority to have more than 50 percent
to control a ward" fibid.).

The court of appeals reversed, finding that "the eourt-
approved map has not provided an adequate remedy for
the Voting Rights Aet violation" (Pet. App. 27). The
court explained, in setting forth "guidelines" for the re-
mand, that the district court failed adequately to address
"the widely accepted understanding * * * that minorities
must have something more than a mere majority even of
voting age population in order to have a reasonable op-
portunity to elect a representative of their choiee" (id.
at 29). The court stated that a "guideline of. 65/o of.
total population" has been found by the Department of
Justice, by this Court, and by reapportionment experts
to represent "the proportion of minority population rea-
sonably required to ensure minorities a fair opportunity'to elect a candidate of their ehoice" (rld. at 33). On re-
mand, the court of appeals required the district court to
use either Lhis 65% guideline or "some other uniform
correetive" based on registration. turnout, and comparable
data (id.aL41; seeid. at32\.

a. Although we conclude that certiorari should be de-
nied, since the Court has sought our views in this case
we are bound to add that we have serious reservations,

' as a matter of law, about the court of appeals' view of
the need for creation of super-majority black or Hispanic
districts as a remedy under Section 2. The court of ap-



10

peals has apparently misunderstood the position of the
Justice Department and this Court, on which it relied for
its 65/o "guideline" (Pet. App. BB)

When determining whether to preclear a districting
plan under Section 5 of the Voting Rights Act, 42 U.S.C.
1973c, the Department's responsibility is to determine
whether the proposed plan is intentionally discriminatory
or would result in "a retrogression in the position o1
racial minorities with respect to their effective exercise
of the electoral franehise." Beer v. tlnited States, 4Zb
U.S. 130, 137 ( 1976) . Contrary to the court of appeals,
apparent impression, in making this analysis we attach
no particular significance to a GS/, figure. The Depart-
ment has frequently concluded, based on the facts pre-
sented in a particular submission, that districts contain-
ing a minority population significanily less than 65/o
(and even 50%) of the total are not retrogressive when
eompared to the pre-existing plan and are entiiled to Sec-
tion 5 preelearanee. Each Section b submission must be
evaluated in light of the particular faetual circumstances

-not on the basis of a preordained population percent-
age.7 See I Voting Rights Act: Hearings Before ihe Sub-
corntn. on the Constitution of the Sanate Comrn. on the
Jud,icinrg, g?th Cong., 2d Sess. 181, l83-lg4 (f9g2) (let-
ter from Asst. Attorney General Reynolds) [hereinafter
cited as Senate Hearingsl. In any event, it is our view
that the legal analysis under the retrogression standard
of Section 5 cannot be transplanted to the much different
questions arising under Section 2. See pages 1g-lg, infra.

Nor has this Court held that minority voters require a
65/o .majority in order to have ,,a reasonable oppoitunity
to elect a representative of their ehoiee,, (pet. App. Zgi.
To the eontrary, the Court's recent summary affi"*rn.e

11

in Brooks v. Allain, No. 83-1868 (Nov. lB, lg84), indi-
cates that so-called "enhanced majorities', are not re-
quired as a remedial measure under Section 2. The plain-
tiffs in Brooks urged the three-judge distr.ict court to
ereate a congressional district with a black population of
at least 64/o on the ground that because of low voter
registration and tur.nout among blacks they would be un-
able to elect candidates of their choice with a lesser per-
centage. In rejecting the super-majority plans proposed
by the Brooks plaintiffs, the district courC noted:
"Amended $ 2 * * * does not guarantee or insure desired
results, and its goes no further than to afford black citi-
zens an equal opportunity to participate in the political
process" (No. GC82-80-WK-O (N.D. Miss. Ap". 16,
1984), slip op. 15). Accordingly, the district court con-
cluded that creation of a district with a 5Z.g% black
voting age population (58% black in total population)
would "overcome the effects of past discrimination and
racial bloe voting" and would ,,provide a fair and equal
contest to all voters who may participate in congressional
elections" (ilL. at 16). In summarily affirming the dis-
trict court's decision, this Court necessarily rejectecl the
appellahts' argument (83-186b J.S. at 16) that the court,s
plan was inadequate to remedy the State,s violation and
to provide members of the minority group an equal op-
portunity to elect a candidate of their choice.s

Similarly, in Seam,on v. (Jplmm, No. p-g1-49-CA (E.D.
Tex. Jan. 30, 1984), slip op. ll-l?, the three-judge dis-
trict court rejected a Section 2 claim that minority voters

? See Mdssi.ssiypt v. anitud States,490 F. Supp. 669, 6?b (D. D.C.
1979) (three judge court), aff'd, 444 U.S. f0E0 (1980) (in pre_
clearanee action under section E, dietrict court found super-malority
district required where recent discriminatory obstacles to voting,
ineluding literacy tests, a poll tax, and a white primary system,
"eontinue[d] to affect black people in many portions of the Btate,"
leading to low levele of political participation).

a The appellants in Brooks specifically argued in this Court that
because of "past diserimination, and continued disparities in in-
come, education and other socio-economic measure$," which are
reflected in lower black voter registration and turnout, a 52.g8/o
black voting age population majority was not su{ficient to remedy
the Section 2 violation (8S-18G5 J.S. at 16). That argument, re.
jected by this Court in Brooks, is remarkably similar to the position
adopted by the court below-with the exception that in Chicago,
unlike Mississippi, black voters have not been systematically denied
their right to vote i, the recent past and have greafly increased
their registration and voter turnout in recent elections.



12

were entitled to a "'safe' district in whieh the minority
population approaehes 6bo/o of the overall population,;;
under the challenged plan, minority voters, while not
guaranteed the ability to elect a candidate to offiee, were
found to "exert a significant impact,, in two high minoriiy
impact districts (slip op. 16). This Court surimarily af_
firmed. Strake y. Seam.on, No. g3-lg23 (Oct. l, fggal.
These decisions indicate that seetion 2 does not mandate
the creation of super-majority districts, even where other
objective factors contribute to a finding of a violation of
Section 2 under the ,'totality of the circumstances.,, o

Nor is the court of appeals, holding supported by the
legislative history of amended section 2.'d The -o.t ai-rectly pertinent discussion of the issue in Congress was
a colloquy between Representative Levitas and 

"ct 

"irrn"nFldwards, floor manager of the bill, during Hil; ;;;_
sideration of the Senate _compromise legislition. n.p.._
sentative Levitas inquired wliether the 

-amend"d V;;;;
Rights Act contained. ,,any numerical percentage of what
would constitute a minority district." chri"*"i nawa"a.
answered that "the bill contains no such provisions.,, lig
Cong. Rec. H8844 (daily ed. June Zg,lgg})

13

This case illustrates why a presumptive numerical ,,cor_
rective" is out of place in Voting Rights Aet cases.
Plaintiffs presented evidence that voter registration and
turnout were historicaily much lowe" 

"morg 
bracks and

Hispanics than among whites. However, in reeent elec_
tions there has been "a marked increase in brack registra-
tion and turn-out," as the court of appeals noted* (pet.
App. 36 n.21) .1r Petitioner has presenled evidence that
minority voter registration and lurnout rates now ap_
proach or even exceed the rates among white voters ( pei.
3-4). If this evitlence is reliable, a decree ordering crea_
tion of super-majority wards would plainlv not 

"be 
an

appropriate remedy.r2
More fundamentally, the court of appeals, presumptive

requirement of super-maioritv black antl Hispanic #ards
f.ails to distinguish between the need to remedy present-
day obstacles_ to political participation by minority group
members and an unalloyed desire to protect them'irom
defeat at the polls. The foeus of amended section 2 is
not on guaranteeing election results, but rather on seeur-
ing to every citizen the right to equal ..opportunity * * *
to participate in the political proeess,, f Ai U.S.C. 1g?B).
As Senator Dole, principal sponsor of the eompromise
S9clion 2 that passed the Congress, statetl in explanation
of_his proposal, Section Z would ,,[a]bsolutely not', pro_
vide any redress "if the proeess is open, if there i. .qurt
aeeess, if there are no barriers, rlirect or indirect, thrown
up to keep someone from voting or having their vote
.9rlt-9dt or registering, whatever the process may in_
._Uagll (128 Cong. Rec. 56962 (daity ett. iune 17, rc:BDl.
Cf. Whitcomb v. Chaais,40B U.S. iZq, $s (19?1) Sup-
porters of amended section 2 in the senate repeatediy
emphasized that the provision guaranteed ,,equal ,.."..i,

s In Uni.ted Jetoish Organizatiow, Inc. y. Carey, 480 U.S. 144,168 (1977), trre court upheld ae constitutional the st"t r"girl_ture's intentional creation of a 66/6 minon[y dietrict; fri if,"pluralitv opinion did not suggest that creation of sueh a distri;tis required or that it wourd be an appropriate exereise of a court,s
remedial diecretion.

ro For e more extended diseussion of the elements in the section2 compromise, see our amicus curiae brief in support of the juris-
dictional etatement in_Thornburg v. Gingles, p*U. jr.ir. ,otj, No.83-1968 (Apr. 29, 1985), at 6_tt. We pointed out there, and reiter-ate herq that the compromise character of section i ." it *""
enaeted by congress makes it neeessary to exercise caution in tlteuse of legislative history-materials that may reflect the view or onry
one faction that eventually supported the compromir". f"" *"rp'fu,the majoritv views section of the senate Repo.rt, whire iltuminating
on many questions, must be read against other rerevant pieces or thelegislative history. Isorated statements in the Reprt do not neces-sarily reflect the compromise @nsensus. a copy ,f ,;. t.i"i *Gingles hae been provided to the parties in this ease.

11 The distriet court noted a similar increase in voter registra-
tion and turnout among Hispanics (pet. App. IZZ-lZg\. See DX
220; Tr.37.12.

12 A super-majority might also be inappropriate where other
voters in the ward are divided among two or more races. see pet.
App. 112, l19-120.



L4

(e.9., 128 Cong. Rec. 56655 (daily ed. June 10, 1982)
(Sen. Boren); id. at 56961 (daily ed. June 17, 1982)
(Sen. Dole)), but that it did not apply where minority
voters or eandidates "failed to participate given an equal
opportunity" (e.9., id. at S6779 (daily ed. June 15,

1982) (Sen. Speeter)). Aecord, id. at 56647 (daily ed.

June 10, 1982) (Sen. Grassley) ; iil. at 56717 (daily ed.

June 14, 1982) (Sen. Tower); id,. at 56717-56718 (Sen.
Moynihan) ; id. at S6964 (daily ed. June 17,1982\ (Sen.

Kennedy) ; id. at S7110 (daily ed. June 18, 1982) (Sen.

Metzenbaum) ; id. at 57118 ( Sen. Sasser) .

Aecordingly, the question under Section 2 is whether
the ehallenged electoral practice "result[s] in the denial
of equal access to any phase of the electoral process for
minority group members" (S. Rep. 97-417, 97th Cong.,
2d Sess. 30 (1982) (emphasis added) [hereinafter cited
as Senate Reportl ). Where minority voters "merely
fail[] to participate given an equal opportunity" (128
Cong. Rec. 56779 (daily ed. June 15, 1982) (statement
of Sen. Specter) ), it would be contrary to the funda-
mental rationale of amended Section 2 to compensate by
creating super-majority seats. As Senator Leahy ex-
plained (2 Senate Hearings 46), " [i]t is the opportunity
to participate, not the actual use of that right, which is
crueial." 18

13 The court of appeals noted (Pet. App. 30) that while "good
motivation and organization" would eontribute to improved voter
participation by blacks and Hispanics in Chicago, this would not
"fully rectiffy]" the problem; "[s]ome of the problems, at least,
spring from eir.cumstances of low income, low economic status, high
unemployment, poor education and high mobility." Cf. Senate
Report 29 n.114. Facially neutml registration and voting practices
such as restrictive times and locations for registration or residency
requiremente (the court of appeals' example (PeL App. 30) ) ean
have a disproportionate impact on person$ of .low socio-economic
status, and thtrs effectively deny such persons an equal opportunity
to partieipate in the political process. A remedy under Seetion 2
might well require the jurisdiction to take steps to reduee these
obstacles to political partieipation (for example, by expanding the
times or locations for registration). The district court made no
specific findings on this iesue.

l5
The court of appeals thus erred in its assumption that

as a matter of law "minorities must have something more
than a mere majority even of voting age population in
.order to have a reasonable opportunity to elect a repre-
sentative of their ehoice" ( Pet. App. 291 , or that "650/o

of total population t r * represent[s] the proportion of
minority population reasonably required to ensure minor-
ities a fair opportunity to elect a candidate of their
choice" (id. at 33). The foeus of a court's remedial ef-
forts must be not on creating "effective majorities" but
on eliminating barriers to equal opportunity to partici-
pate in the political process. If the court of appeals were
correct-if a 65% majority were "reasonably required to
ensure minorities a fair opportunity to eleet a candidate
of their choice"-then black and Hispanie voters would
be entitled to 65% super-majority districts wherever they
eould be drawn; anything less would deny them the "op-
portunity" they are entitled to by law. That view (com-
monly denominated "proportional representation") was
expressly repudiated by Congress,r{ and has been rejected
by this Court. Brooks v. Al,lain, supro.; Sh'ake Y. Sea,mon,
supra.

b. That the eourt of appeals was incorreet in holding
that super-majority districts are required as a matter of
Iaw does not, however, resolve the guestion whether the
district eourt's remedial order was an abuse of discre-
tion under the circumstances of this ease. We submit
that in the current posture of the case, it is difficult to
determine whether the court of appeals was correet that
the distriet eourt's remedy was inadequate.

The remedy for a Seetion 2 violation, like that for most
legal infraetions, depends on the violation. See Upham v.

$eamon,456 U.S. 37, 42 (1982) ; Gene.ral. Btdldino Con-

la The statutory disavowal of proportional reprerentation applies
no less to questions of remedy than to findings of violation. Senate
Reprt 3l; itl. at 199 (Supplemental Views of Sen. Grassley) ; see
2 Senate Hearings 81 (statement of Sen. Dole) ("Fears that the
eourt would consider the disclaimer in determining whether there
is a violation but ignore it in fashioning the remedy are unwar-
ranted,").



16

tractors Ass'nv. Pennsylaanta',458 U.S. 375, 399 (1982);
Hitts v. Gautreaun 425 U.S. 284,293-294 (1976). The

Senate Report explicitly endorses in this context "[t]he
basic principle of equity that the remedy fashioned must
be eommensurate with the right that has been violated"
(Senate Report 31).[ To evaluate the remedy we must
therefore look first to the violation.

Plaintiffs (supported by the United Statesl presented

extensive evidence that the City Couneil had systemati-
cally fraetured black and Hispanic communities and ma-

nipulated ward boundary lines in such a way as to tlilute
minority voting strength. The crux of their case was that
the City Council consistently adjusted waid boundaries
so that black voters on the edges of predominantly black
parts of the city would be split off and placed in white
majority wards where they would constitute a large, but
ineffectual, minority. White voters, in contrast, were

virtually never placed in black wards where their votes

would not contribute to a controlling white majority.
See Corp. Counsel's Br. in Opp. 2-4. The evidence pre-

sented to support plaintiffs' ease is summarized in the

court of appeals' opinion (Pet. App. 20-21 & n.9). We

believe that the district eourt erred, as a matter of law,
in determining that these instances of fracturing, pack-

ing, and boundary manipulation did not violate Section

2.ta

16 Senators representing viein's sometimes at odds with those ex-

pressed in the majority views section of the Senate Report' but
who supported the compromise adopted by the Congress, approv-

ingly citetl this etatement concerning remedies under Seetion 2'

Senate Report 104 n.24, para. 4 (Additional Views of Sen. Hateh) ;

id. at 199 (Supplemental Views of Sen. Grassley) ; see also 2
Senate Hearings 81 (statement of Sen. Dole). Aceordingly, this
statement may be viewed as reflecting a consensus of the Congress'

See note 10, su7to.

,s Because the question of violation is not before this Court, we

will not belabor the weaknesses of the district court's Iegal analysis

in this regard. It suffices to say that the court appeared to mis-
understand the significance of manipulative boundary line drawing'
dismissing powerful evidence of fracturing as the natural result of

17

The appropriate remedy for the violation alleged by the
plaintiffs would have been, as the Corporation Counsel

states, to attempt to replicate as nearly as possible "what
the likely ward configuration would have been but for the
illegal packing, fracturing and manipulation that actually
took place" (Br. in Opp.20). The remedy is to cure the

violation: where cohesive minority communities that
would Ibgically fit within a single ward have been il-
legally fractured, to restore them; where boundaries have

been artificially manipulated, to correct them. In other
words, if the City Council has used various distrieting
devices (packing, fracturing, boundary manipulation) in
a manner that results in dilution of the strength of mi-
nority voters, the iemedy is to draw a map using ap-
propriate neutral criteria. Connor v. Finch, 431 U.S.
407, 421-426 (19?7) ; Ma,rslnll v. Edu'ard"s, 582 F.zd
927, 937 (5th Cir. 1978), cet't. denietl, 442 U.S. 909
(19?9) ; Shayer v. Kirkpatrick, 541 F. Supp. 922, 930
(W.D. Mo.) (three-judge court), aff'd, 456 U.S. 966
(1982). The point of amended Section 2 is not to maxi-
mize or protect the voting power of any given racial
group or to authorize judicial allocation of political power
on racial lines; it is to ensure that all citizens have an

equal "opportunity r * * to participate in the political

lnpulation shifts (Pet. App. 58) and as "a step toward integration"
(id. at 59), and stating that the packing was "a result of those
incumbents who wish to protect their ineumbency" (ebid.). \{e
agree with the court of appeals (id. at 19) that where incumbent
protection takes the form of carving out racially congenial wards
for white aldermen, the results may support a finding of a Sec-

tion 2 violation. Accord, Maior v. Treen,574 F. Supp' 325' 355

(E.D. La. 1983) (three'judge court). The district court also ap-

peared to misunderstand the statutory concept of the "totality of
the circumstances," insisting that a Section 2 violation can be

found only on the basis of "the plan as a whole" and not on any

"specific ar@s" or "specific wards" (Pet. App. 71 ; see dd. at 54' 56).
In our view, the opgrsite is true. Only by analyzing specific voting

practices or procedures can a court determine whether minority
voters have been denied equal access to the political system; to
focus solely on a districting plan "as a whole" reduces the inquiry
to a search forproportional representation.



18

process and to elect representatives of their choiee" with-
out regard to race (42 U.S.C. 1973).17

However, the precise contours of a remedy for this
violation remain hypothetieal and abstract at this point,
for the district court's finding of a violation was not
based on the plaintiffs' showing of impermissible bound-
ary manipulation. Rather, the court based its finding of
a violation, affirmed in part by the court of appeals ( Pet.
App. 14, 24 n.l?), solely on a comparison of the number
of wards controlled by minority groups under the chal-
Ienged plan with the number under the previous plan.
We believe that this "retrogression" analysis is not ap-
propriate to Section 2 cases, and that it is improper to
predicate a remedy on such a theory of a violation.

"Retrogression" is the standard applied under Section
5, 42 U.S.C. 1973e, to jurisdictions with a history of dis-
crimination touching on voting. See City ol Lockhart v.
United States,460 U.S. 125, 133-136 (1983); Beer v.
United States, sitpra. The legislative history conclusively
demonstrates that the standard under amended Section 2
was not intended to be the same as that under Section 5.
Senate Report 68; id,. at 104 n.24, para. 8 (Supplemental
Views of Sen. Hatch); 128 Cong. Rec. H3841 (daily ed.
June 23, 1982) (remarks of Rep. Sensenbrenner with
Rep. Edwards concurring); 1 Senate Hearings 1254 (tes-
timony of Julius L. Chambers, President of NAACP
Legal Defense Fund); 2 Senate Hearings 80 (statement
of Sen. Dole). Indeed, the Senate majority report ex-
pressly states that " [pl laintiffs could not establish a Sec-
tion 2 violation merely by showing that a challenged re-
apportionment * * * involved a retrogressive effect on the
political strength of a minority group" (Senate Report 68

t7 In this we agree with the district court (Pet. App. 55) that
the proportional representation disclaimer of amended Section 2
"prevent[s] any court from imposing a certain proportion of elected
representatives on a city, county, state or any political subdivision
and thereby merely by the numbers decide that a certain number
of representatives are going to come from each group."

19

n.224\. There must be a showing of a denial of equal
access to the political system; a mere numeration of mi-
nority and majority controlled districts is not sufficient.
'The court of appeals eorreetly took exception to the

district court's legal analysis of the violation, finding spe-
eifically that fracturing can dilute minority voting
strength in violation of Section Z and that the manipula-
tion of boundary lines in order to maintain a raclally
congenial ward for incumbent white aldermen can be dis-
criminatory. Pet. App. 13-14, l8-ZZ. But the court of
appeals did not itself define the violation with any degree
of precision. (Since respondents' sueeessful argumeni in
the court of appeals for a broader remerly is predicated,
in part, on their eontention that the district court,s find-
ing of a violation was too restrictive, this is one of the
matters that must be addressed on remand.) Nor did the
court of appeals expressly recognize that an altered theory
of violation implies the need for a different theory of
remed_y. A "retrogression" theory of violation might sug
gct that the remedial question is how to allocate political
power among racial groups so as to preserve the position
of blacks and Hispanics, while the alternative theory of
boundary manipulation-espoused bv respondent, ,nd ,p_
proved by the court of appeals-would, as discussed above,
suggest a remedy based on undoing the violations. On
remand, if the district court corrects its holding on viola_
tion-as the court of appeals, the respondents, the Cor_
poration Counsel, and we agree it shoultl-then it may
also eonelude that the question of remedy is not so simple
as to ereate majority (or super-majoritv) black and His_
panic districts in a pre-ordained number of wards.' In sum, as this case reaches the Court, it is undisputed
that the City Council's districting plan violated Section 2,
but there is no legally sound analysis of the precise na-
ture of the violation. since the nature of thl violation
has not adequatelv bem established, this is not an appro_
priate case for this Court to address the clifficult ques_
tions of remedy raised by petitioner. In orcler to deter_



2A

mine what remedy the minority voters of Chicago are

entitled to (and even. to determine whether the district
eourt's remedial order-was an abuse of discretion), fur-
ther proceedings on remand are required.

CONCLUSION

The petition for a writ of certiorari should be denied'

Respectf ully submitted.

Ru:r E. t.nn
Solicitor General

Wu. BnaPronoRwNol,os
As sirrtant Attorneu G ener al

Cnlru,ps FR@
D epr,tg Solicitor G erur al

Cnerurs J. CooPsB
DeuttU Assistont Attorney General

MrcnaprW. McConNnll
Assi^stant to tlr,e Solicitot' Generql

Mlv 1986

t. a. s[ttatn tllltlt' drlql 196! 
'61!Sl 

lO2lC