Order of February 8, 1982, Signed by F.T. Dupree, Jr., U.S.D.J.

    ii

PARTIES TO THE PROCEEDING BELOW

I'I-,AINTIFFS (APPELLEES) in the action below arc
Iltlph Gingles, Sippio Ilurton, Frecl Ilelfield antl Joscph
J\4oodv, irrclividually anrl on bah:rlf of a certificcl elass of
all blacl< r'esidcnts of North Curolina rvho are rcrgistcl'etl
to votc.

I,I-,AINII]IFIJ.S /IN1']i]RV]!-]NORS (API,TII,I,,EICS) {Irc
Patrl B. lDaglin, I\{ason l\IcCullough and Joc R. Itoberts,
lrternbers of thc ccrtif itrtl class.

l)nfICNDAN'l'U (AI'l'lrLl;\N'l'S) arc Iracy I-I., lllhorn-
brrlg, Attolrrcy (lerrentl o1' Nortlr (latolirra; Ilobert Il. Jor-
cltrr, ll[, Lt. (,lovrrrnor ol' Norl.h C'arolina; Listorr I]. Ilarn-
scy, Spcaker ol' tlrc lkrrrsc; tlre State Iloard of Mlcetions
of Nortlr (larolirrt; liolrcrt N. flrnrter, .Ir., (Jlurir.rnan;
Iiohcrt Il,. Ilrorvrrirrg, 1\{argnrct I(irrg, Rrrt}r ll. Scnrashl<o,
\\rilliaru A. I\iltrslr, Jr'., rrrcrrrbers of thc State Iloar.cl of
Illcctiorrs I arrrl il'lrrurl I,lure, Secretary of State.

llt

,]]ABLtr Or

QUI4SI]I0NS PTtrrSItrNltED

CONTENTS

Pages

P,\RTTIiIS '].O TIIIi] PROC]r]IIDING I.}I]LO\\I ...

iI, AII[,f' OIT CONTtrNTS

S'I]I\TEITIITNT Otr F,,\ CTS

SUTTN,TAII,Y 0T TI{II] ARCIUIIENI]
,\RGIIl\,f li)N't'

I. TII]I I)IS'I'RIC'I COUR'I] PROI'ItrRI,,Y
Ii,OI]ND 'I'I[,\'II, I]ASIDD I]PON II]HII TO-
lllr\l,I'l'\' OF TIIITI C I RCtIIUSIl'r\NCIIS,
'T]IIID POI,III]IO,,\L I'ROCIi]SSIDS IN THE
CIIALI,ENG 14D DISTNICl'S ARE N()T
EQUALT,Y OI'Ii)N TO PAIiTICII'AI]ION
BY THl, trl.r\lNllllIi'Ir. CI.,ASS

A. Introduction

B. TIre fntcraction Betrreen the Zimmu.
ft'actors Present and the Use of l\Iulti-
rnember I)istriets Denies I\[inorities an
Equal Opportunity to Jrarticipate in the
f4lectoral Process and to Elect Itepresen-
tatives of Their Choice.

The Court Did Not Hold that Section 2
Ifad Been Violated Because the [{ulti-
trfember Districts Prevented propor-
tional Representation for i\Iinorities. .........

Beeause of Single-Shot Voting Teeh-
niques, Lirnitecl tslaek Electoral Suecess
I\fay l\,fask the Results of a Discrimina-
tory Law.

C.

19

I).

2r,t



iv

TABLE OF CONTENIlS-Continuetl
I'agcs

T}ID COUIiT I'ROPERLY USI!]D A DEFI:
NI lt'I ON OII VOTIr) |)O,I,ARIZAI[ION
WIICII 1VOULD I]E r\PI'}LICABI-,D 'llo
.IURISDICI'IONS TN WI{ICH BI,ACI(S
wrN A r.Iqw ELtrCTIONS. ............._.........................._ 26

A. Vote Polarization Exists Whenever the
I)iffercnce IJetrveen thc Ircrccntlge of
Blaclis and the Ilcrecut,agc of Whitcs
Who \rotctl fnr lll:rcl< Otndirlatcs Is Sub-
sl;antial lt)rrorrgh to !)isplny :u Consistent
f'attcrrr of Vot,ers Casting Ballots Along
llacinl I,irrtrs.

Ii. 'l'he Ir'intlirrg of Vol;c Polarization Is Not
Ii'orccloscrl b.y t,hc l\{ere It'act that Bltcl<s
I[irvc \Yon il li'cu, ]Dlections. 82

III. DVIDN IIi' 'I'IIID I,O\\iIi)]T COI]R'I DlD NOT
A lt'l'|( lI I L,\'l'lr] 'l,H li] l, !lOI,l,) Il DIrllr,INI_
'I'ION Oli' V()'l'lr) l'OlrAItlZATlON,'l,lIlil
llll(lOlll) lS lll,ll,l,lrl.l,lr) WI,I,TI F,\C'l'S
SUPI'OIl'l'lN(l'l'lllil (iOUTl'|,'lJ IIINDTN(;
Ol,' VO'l'lD l)ll,tl'j'lON. ......:..................,.... 83

CONOI,,IISION

II.

26

36

v

TABLE OF AUTHORITIES

Cesrs:

Raher o. Carr,369 U.S.

I)rum u. Seawell,2Tl 1,,'.

Pages

186 (1962) ...........2,75

Supp. 193 (II.D.N.C. 1967) ... 2

Graues u. Ilar"nes, 34:J !'. Supp. 701 (\V.D. Tex.
1972), afl"d, itt Tturt su,b tr.ottt, lYhite a. Ilegester,
412 tr.S. 755 (1ei3) ... :j6

Neely u. ll[artin I{. Eby Con,str-ttctiotr, Co.,386 U.S.
31i (re67) 14

Neaett u. Sides,571 li'.2d 2t)9 (bth Cir. 1978) 29

Rogers L:. Loclge,458 U.S. 618 (1982) .............29,80

I'errazo,s t,. Clentents, 581 F. Su1tp. 1li2g (N.D. Tex.
1r)84) 31

Teras Dept. of Comntuttit.tl A/.f airs u. IJu.i.dine,4b0
rr.s. 248 (1e81) 31

Un.ited, States tt. llaranqo Cou,nty,7A1 1,..2d 1b46
(11th Cir. 1984) .... ._. .. .....28, JJ

ll/ lite u. lle 11ester, 472 U.fj. Tt'r5 ( lgTll ) ........................i-l, T , lT , Zl,
33,34, 35, 36

Ziut,mer u. tr[r:I(cithcn, 48r,t li'.2d 12gZ (bilr Cir..
1973) (en barrc), af t'd on other ground,s sttb
notn. Dnst Ctr,rroll, Parish School Iioarcl u. tr[ar.-
shall,424 U.S.636 (1970) (per culiam) ... pa-*sinr

Sr'.,t'rurns:

42 U.S.C. S 1973 .......................3 ,4,9,20,32

Mrscor,urrvEous :

S. ttep. No. 417, 97th Cong., 2cl Sess. lg82 .......................passinr



No.83-1968

Ilntl2e $upreme $,wrt of tl1elHniteil Statex
October Term, 1985

Laov II. Tronxnuno, et al.,

Appellants,
v.

R,rr,pu ClrNor,rs, et a1,.,

Appel,l,ees.

On Appeal From the United States Distriet Gourt
for the Eastern District of North Carolina

BBIET OT TEE
APPELLEES INTEBVENORS

STATEITIENT OT FAOTS

For soventy years, the State of North Carolina offi-
cially, systematically and effectively discriminated against
black citizens with regard to the electoral franchise. fi,ronr
1900 until 1969, a combination of literacy tests, the poll



2

tax, multi-member districtsrr anti-single shot laws, num_
bered-seat plans, majority vote requirements, blatant racist
appeals, intimidation, and socio-economic discriminatiorr
prevented the election of any black to either the I{ouse
or the Senate of the North Carolina General Assembly.
(J.S. at 22a-33a)

Through the inexorable march of no longer passive
public opinion, federal legislativc pressure and jurlicial
decisions, the greater part of these discriminatory mech-
anisms were dismantled, but a few, including nrulti-member
districts, remain.

It was in this context that plaintiffs Clinglcs, ct al.,
and plaiutiffs-intervcnors Eaglin, ct al., challelrgcd ilre
1982 redistricting plan adopted by the North Carolina
General Assembly, on the grounds that ,,based upon the
totality of the circumstances,,,, (a) six multi-mcmber clis-
triats with substantial white voting majorities iu areas
where there are sufficient concentrations of blach voters
to form majority black single-member districts and (b)
one single-member district which fractures into separntt,
voting minorities a eomparable concentration of black vot-
ers, in conjunction with the historical, social anrl Jroliticll
factors elaborated in Zi,mmer a. McKei,th,en, 485 tr'.2d 12gT

I Multi-member districts are, the State asserts, the result
of the h_istorical practice in North Carolina of not dividing coun-
ties in forming legislative districts. (App. Brief p. 3) Tht State
seeks to imply (App. Brief p. 3, n.2l that, because Art !! SS 3(3)
and 5(3) of the 1968 revision to the North Cdrolina Constitu-
tion "merely" codified historiLal practice, no discriminatory
intent can be inferred. ln light of ihe absence of any require-
ment for population balance- by district prior to Baker v.'Carr,
J.6? U.9. 186 (1962) and Drum v.'Seawell, 271 F.Supp.193 (M.D.
N.C. 1967), however, the chronological coincidence of the 1968
constitutional amendment is remarkable.

3

(5th Cir. 1973) (en banc), aff ,il, on otlrcr grounils sub nom.
East Carroll Parish School, Boaril, u. Marshatt, 4Z4IJ.S.
636 (1976) (per curiam), violated Section 2 of. the Voting
Rights ltct, 42 U.S.C. $ tgZA (J.S. at 4a). fn particular,
plaintiffs contended that their class ,,have less opportunity
. . . to participate in the political process and to elect rep-
resentatives of their choice.,, 42 U.S.C. $ lgZB(b).

After an eight day trial before a three judge court
consisting of the Honorable J. Dickson phillips, Jr., Cir-
cuit Judge, 'W. Earl Britt, Jr., Chief District Judge, and
X'ranklin T. Dupree, Jr., Senior District Judge, all North
carolinians, the court held that the black registerecr voters
in the challenged districts were submerged as a voting
minority and thereby had less opportunity than oilrer
members of the electorate to participate in the political
process and to elect representatives of their choice. (J.S.
at 52a)

In the courge of its factual examination and conelu_
sions, the Court below made three critical findings rela-
tive to whether the members of the plaintiff class have
an equal opportunity (a) to participate in the political
process and (b) to elect representatives of their choice:

1. In the challenged districts, only 55/" of the black
voting age population is registered to vote as compared to
70% of the white voting age population, a differential of
l5%. (J.5. at 24a-25a1 Answer to fnterrogatory 1)

2. Elections in the challenged districts have been and
are marred by persistent and severe racially polarized vot-
ins. (J.S. at 38a)



'4

3. Even in the context of progressive attitudes, Ieg-

islation and court deeisions, only eight different blaak can-

didates have been elected in the challenged districts in an

aggregate of approximately 248 elections since the first
black was eleoted in 1969.2

While the State and the Solicitor-General place dif-

ferent interpretations upon these facts or attack them as

a matter of law, they are not seriously challenged' Plain-

tiffs crinteiid that they are essentially dispositive of this

appeal.

SUDIMABY OT ARGUMENT

Amended Section 2 of the Voting ll'ights 'Lct,42 U'S'C'

Section 1973, protects the right of minorities to equal op-

portunity to participate in the political process, judged in

ilre context of the totality of the circumstanee. A violation

is established if members of the minority (1) have less op-

2

Challen$ed District

House District 36
Senate District 22
House District 39

House Distrlct 23

House District 21
House District B
Senate District 2

No. of
Diflerent Blacks

El"rt1l Source

1 (BerrY) (1.S. 34a and 41a)
1 (Alexhnder) (1.S. 34a and 42al
3 iEnryin, (f.S. 35a and 42a-43a)

Kennedy, A.,
Hauser)

2 (Michaux, (1.S. 35a and 43a)
Soauldine)

1 (Blue) (f.S. 35a and 44a)

-o- 0.s. 36a)

-O- 
(i.S. 36a)

From 1969-1983, there have been eight elections in the chal-
i""ii"A aiitricr ,lrni.n elect 31 memb6rs of the House and Sen-

atel U.S. at 19a and 20a)

5

portunity than their eounterparts in the electorate to parti-
cipate in the political process and (2) have less opportunity
than others to elect representativee of their choice. Con-

gress took the language of amended Section 2 from White
r. Regester, 412 U.S. 753 (1973), anrl intendecl thereby to
ineorporate the analysis of it and its progeny, including
Zimmer u. Mcl(eithen, 485 F.2d 1297 (5th Cir. 1973) (en

banc), alf'd on other grounils sttb nom. East Carroll
Pari,sh, School Boaril o.Illarslmlr, 424 U.S. 636 (1976).

\Yhite, Zimmer and the legislative history of Section 2

enumerate the factors which are relevant to the cleternrina-

tion of the two ultimate findings which establish a viola-
tion. In the instant ease, the District Court held that each

and every Zimmer faetor considered in conjunction with
the suspect meehanism of multi-member districts, worked
to deny the minority of their statutory rights to equal

opportunity to partieipate in the political process.

In a slightly different arralysi's thatr has previously

been marle, these factors may be appropriately allocatetl

between the two halves of the statutory framework. fn par-

tieular, nrinority blacl<s currently have less opportnnity to
partieipate in the politieal procese as a result of (a) the

rrndisprrterl history of intense antl pervasive official die-

erimination against blael<s, the effects of rvhich continne to

persist rlespite the State's reeent efforts, (b) the cnrrertt
rleprcssed level of black participation in politics beeause of
the lingering effects of racial discrimination in fac.ilities,

eclueation, employment, housing and health, (c) a differen-
tial of over I57o between the percentage of age-qualified

blacl< and white voting registration, (d) min'imal blach par-

ticipation in legislative politics in comparlson to black pop-

ulation and (e) the tenuous nature of the state policy, e.g.



.6
not dividing counties, which neeessitatecl multi-membererl

tlistriets but which hatl bepn violated in other tlistricts, to

meet popnlation deviation requirements or to obtain See-

tion 5 preelearanee.

Similarly, minority blacks eurrently have less oppor-

tunity to elect representatives of their choice because of (a)

discriminatory voting proeedures, such as a majority vote

requirement in primaries (which dilutes or negates the ef-

ficaey of '(sitrgle-sltot" voting) and a laclr of a sub-clistrict

resicleney reqttirement in multi-mernber clistricts, (b) a con-

sistcnt history of inflammatory appeals to raeial prejudiee

in politieal eampaigns up to and ineluding the most reeent

elections, (e) the election of only eight different black

canrlidates to the nearly 2S0legislative seat positions avail-

ahle sinee the first blach in this century wes elected to the

I:louse in 1969 (ineluding the fact that, in two of the chal-

lengecl districts, no blaek has ever been elected to the legis-

lature) and (d) persistent and severely racially polarizetl

voting.

With regard to factor (e)-limitetl black election sue-

cess-the lower Court iliil not holil that Section 2 had been

violated because nrinorities had not aehieved representa-

tion in proportion to their pereentage of the population'

il'lre fincling of underrepresentatiorr only triggered the use'

of tho zimnter factors in order to ir-rvestigate this anomaly

tltrder t]re totality of the circumstances; further, both con-

gress and the courts aecord slight weight to a few minority

victories in section 2 cases. Finally, partieularly localizetl

factors sueh as single-shot voting and some black candi-

dates who are acceptable to and serve the purposes'of the

tlominant rnajority, mash the discriminatory effects of the

subrnergertce of the minority in multi-member districts'

7

'With regard to factor (d), the lower Court ili,il not firtd
polarized voting whenever less than 50/, of the white vot-

ers cast ballots for minority candidates. fnsteatl, the

Court properly defined it as existing whenever the rliffer-
errce between the percentage of blacks ancl the percentage

of whites who voted for black candidates is substantial

enough to display a consistent pattern of voters casting

hallots along racial lines. In other words, it is necessary

to examine how both white and blaclr electors vote aud the

eatent to rvhich the votes of each are cast along raeial lines,

together with other, particular circumstances of a given

electoral eontest, sueh as whether the blaek was opposed or

nnopposed. Onee the plaintiff established a prima facie
ease of racial bloc voting through accepted regression

analysis techniques, it was the State's burden to introduce

evidenee of other causative factors, other than race, as

rebuttal. Ilere, the State failed to offer any alternative

explanatiorr and shoul<l be bound by the findings below.

Even if the lower court did not articulate the proper

definition of vote polarization, a finding in this regard is
not neeessary to establish a violation of Section 2. In
l4/h,ite u. Regester, this eourt eonsidered Zimmer faetors

remarkably similar to the one involved here and found

impermissible vote dilution without making a finding of
vote polarization.



8

I. TEE DISTRICT COURT PROPEBLY FOUND THAT,
BASED UPON THE TOTALITY OT THE CIRCUM-
STANCES, TEE POLITICAL PBOCESSES IN TIIE
CHALLENGED DISTRICTS ABE NOT EQUALLY
OPEN TO PARTICIPATION BV TEE PLAINTIFF
0LASS.

A. Introduction.

The question in this ease is whether the plaintiff class

has lrcen denierl the rights guaranteed to it by $ 2 of the

Voting Rights Act, 42 U.S.C. $ 1973(a) and (b). The

State asserts a minimal definition of these rights-that
they are limited to the bare indicia of the political process

rvhich are satisfied if minorities enjov "active and mean-

ingful partieipation in politics" (App. Brief p. 15; Sol. Gen'

Brief dated July, 1985 p. 20 n.43) Simila-rly, the State at-

tempts to characterize plaintiffs' contentions and the de-

oision of the Court below as requiring the very propor-

tional representation prohlbited by the proviso to $ 2(b).
(App.Brief at14,15, 19,2d,21,33; Sol' Gen. Brief dated

July, 1985 pp. 6-7) i

The Court below expressly eschewecl any requirement

of proportional representation (J.S. at 15a) and plaintiffs

certainly do not urge that result, which'is clearly contrary

to the statrrtory eommand. On the other hand, that statu-

tory eornmantl is equally clearly broader than the State's

eoilterrtions. sectioil 2 <lefines the denial of the protected

right -that "the political process [be1 . . . equally open to

partieipation by" the minority-in two terms: that its

"metttbers ltave less opportunity . . . to participate in the

political pt'oeess" ancl that its "members have less oppor-

tunity . . . to eleet representatives of their choice'" The

definition urged by the'State-"active and meaningful par-

tieipation" applies only to the first half of the statutory

framework.

I

The task before this Court, ancl the parties to this case,
is to define the second half of the statutory frameworl<, the
nreaning the phrase dealing with plaintiffs' showing they
have been denied equal "opportunity . . . to elect repre-
sentatives of their ehoice." Thns, we nrust locate the point
on that complex spectrum where, by virtue of the applica-
tion of a legal stanrlard, minorities are so electorially suc-
cessful that they have, in fact, had an equal opportunity to
elect representatives of their choice. 'Ihis point must not,
ho'lvever, be so extreme as to be a requirement of propor-
ti olal represeutation.

B. The Interaction between the Zimmer Factors
Present and the Use of Multi-Member Districts De-

nies Minorities an Equal Opportunity to Partici-
pate in the Electoral Process and to Elect Repre-
sentatives of Their Ghoice.

As presaged by the foregoing Introduction, plaintiffs
urge that the Zi,mmer factors and the challenged electoral
mechanism be examined in light of the double frameworl<
of $ 2. We will allocate the Zimmer factors to that half
of the framework to which thcy are actually more, or sole-

ly, applicable.3 In this fashion, "equal opportuuity to par-
ticipate" is defined in terms of (a) the history of racial
discrimination against black citizens in voting matters, (b)
the effects of racial cliscrimination in facilities, edueation,

employment, housing and health, (c) limitations on actual
voting bv black citizens, (d) the increased participation, if

3 This mode of analysis allows for the use (and proper allo-
cation) of additional factors which are not foreclosed by the
legislative history or Zimmer and which may be applicable to
this or any other case.



10

any, by black citizens in the political process and (e) the

fairness of the State legisiative policy underlying the chal-

lenged redistricting.

Similarly "equal opportunity to elect" may be cir-

eumscribed by (a) limiting voting procedures, (b) thc use

of racial appeals in political campaigns, (c) the limited ex-

tent of election of blacks to public ofriee and (d) raeial

polarization in voting

It is plaintiffs' crystal eonviction and the unambigu-

ous factual findings of the Court below that the eombina-

tion of the Zimmer factors with the use of multi-member

districts has deprived them of both (a) the equal oppor-

tunity to participate in the electoral process anil (l:) the

equal opportunity to elect representatives of their choice.

1. Equal Opportunity to Participate

(a) The history of racial discrimination ogainst black
citizens in voting matters.

In contrast to the State's assertion, the Court below

did not saddle the State of North Carolina with "an
original sin." (App. Brief at 27) Insteacl, the Court

found that, because of the extent and virulence of the

undisputed history of official discrimination, its effects

were still being currently felt. (J'S' at 22a) Even after

most of the impediments to black voting were removecl

antl some efforts were made by the state to inereJrse black

registration, the registration of age-qualified blacks is

overwhelmingly less than that of age-qualified whites in

11

each of the counties which make up the challenged dis-

tricts.a (J.S. at 24a-25a)

In fact, in five of the counties, including one of the

largest (Wake), the registration differcntial between

whites and blacks has remained virtually unchanged dur-

ing the very period (197&1982) relied upon by the State

to demonstrate the so-called "progress" upon which it
depends to overcome the findings and conclusions of the

Court below. (1d,.) \n contrast, the 'Solicitor-General rec-

ognizes that these registration differentials are an ap-

propriate and, here, telling point. (Sol' Clen. Brief July,

1985 p. 26) Indeed, plaintiffs urge that they are dispositive

proof that minorities are currently cleniecl an equal op-

portunity to participate in the political proeesses of the

challenged districts. As such, the registration differen-

tials are tliscussed in greater deteil at subsection (c) inf ra'

(b) The effects of racial discrimination in facilities,
education, employment, housing and health.

The Court below also found that the socio-econorttic

effeets of racial discrimination had depressed minority

political participation. (J.S. at 264) The State contends

that the Court jumped to this conclusion despite the ab-

Bence of proof that "participation by blacks in the elec-

tonal process is depressed." (App. Brief at 29) In fact,

however, the eviclence was that economically disadvan-

a The Court acknowledged the preceding governor's at-

temot to increase the registrltion of blacks, but found that, un-
tike'the multi-member di-stricts which, absent this lawsuit, would
6"-*itf, us forever, there was no guarantee that the efforts to
iniruri" tlack registration will bdcontinued past the end of
that administration. (J.S. at 25a)



12

taged blacks, for whom political contributions are a bur-

den, are even more hampered by the extra eost of multi-

member campaigns. It is noteworthy that the Solieitor-

Cleneral cloes not share the State's misconception; in fact,

his brief does not chollenge the lower court's finding in

this regard

Even more important, the State's attempt to show

that black political participation is not clepressecl is dis-

ingettrtous. llhe litany of Demoeratic party offices, po-

litical positions and elected offices held by minorities in

the challenged districts is virtually all either intra-party,

appointive or loeal in nature. While there m'ay be less

question that blach participation is depressed at the local

level, flre important inquiry is whcther it is depressed at

the legislative district level. The only relevant proof of

blacl< politieal particiPation at the legislative district lcvel

which the state eun cite are the few blaek representatives

and scnators electerl since 1969, both in the challenged dis-

tricts and elsewhere.5 Even with regard to these electoral

successes, the critical faet is that many of them are the re-

sult of single-member districts, the very relief sought in

this case.6

(c) Limitations on actual voting by black citizens'

The fact that blacks are registered to vote at a far

lower rate trhan wlritcs is virtually definitional of the

5 Discussed in detail below in Section lB under h-eading
,,2_rqr"i"5[prrtrnitv iii'rt"ii-n"pr"sentatives of Their choice."

o rn the course of the 1eB2 redistr,",r?.,1:"';Sliltrr# 
:ffi;

::::. 1 lEl" 
"T 

"fl L'il.i' 18,1i "'s 
i,""'i l' xi ; ",; ; r i, 6 r,. 6 r, i, 

"
"n|oy"a 

increased electoral success'

13

lack of equal participation. Based upon the registration
statistics presented in this case, it is painfully evident that
blacks do not, indeed, eannot, equally participate in the

electoral process with whites. In the two largest counties

involved in this ease (Mecklenburg and Wahe), the dis-

parity between white ancl black registration is well over

20%. In only a ferv of the smaller counties does the voter
registration disparity decline to a still crippling 10lo.

Thus, in the counties that contain the most blacks, their
opportunity to participate, as defined by registration rates,

is the least. In faet, when the percentage registration sta-

tistics for each county in the challenged districts are ap-

plied to the absolute numbers of the voting age population

in the eounty, the effect of the vast tlifferential betu'een

black and white registration in the more populous coun-

ties is clear. While the numerieal average of the regis-

tration differentials is 12.6/o,? the weightetl average is

75%;

This culrent inclicium of the lacl< of equal opportunity
to partieipate is even greater in light of the faet that, be-

tween 1980 and 1982, statewide white registration hns

dropped by 112,000 and blacl< registration has increased

by 12,096. (App. Brief at 13) Itrven with the.se blacl< gains

antl rvhite losses, black registration still lags so substan-

r This figure is the numerical average of the difference be-
tween the Sercentage of blacks of voting age who are regis-
tered and the perceitage of whites of voting age who are reg-
istered, as set'forth in the opinion of the Court below in l.S.
at 24a-25a (10 / 82 figures).
s This figure is the welghted average obtained by applying
the differenlials from l.S. at 24a-25a to the voting age popula-
tion statistics for each county found in Plaintiffs' Exhibit 87.



L4

it"tt, behind white registration as to constitute irrefut-
able proof that, in the challenged districts, blacks do not
have an equal opportunlty to participate in the political
process.e

(d) Increased. participation, if any, by black citizens
in the political process.

The trial court found that, despite the very recent in-

creflse in black participation in politics, this factor did

not overeome "entrenched racial vote polarization" and,

compared to the overall'black population, black participa-

tion remained "minimal." (.f.S. at 47a) While'the State's

Statement of the Case does contain references to some

facts rvhich the trial eourt weighed in reaching this find-
ing, the State does not separately tlispute this finding in
its brief, and therefore, this finding is not subject to re-

view. Bee generally Neely a. Martin K. Eby Consrtru,ction

Co.,386 U.iS. 317,330 (1967).

(e) The fairness of the State Legislative policy un-
derlying the challenged rediatricting.

As a final factor bearing rrpon the lack of equal op-

portunity to perticipate, the Court found that the State's
justification for creating the challenged districts did rrot

overcome other faetors which established vote dilution.

The Court quoted the'senate Comrnittee Report which evi-

dences Congress' intent that "even a consistently applied

practiee premised on a racially neutral policy would not

e According to the testimony of Mr. Spearman, Chairman
of the Board bf Elections, even at this extraordinary rate of
icatch up", over a decade would be required to equalize the
registration percentage. .

t5

negate a plaintiff's showing through other factors that
the challengecl practice denies minorities fair access to the
process." (J.S. at 49a, quoting S.Rep. at2g, n.L1Z) plain-

tiff Gingles made a compelling showing using the other
Zimmer factors that ',no state policy, either as demon-
strably employed by the legislature in its deliberations,
or as now asserted by the state in litigation, could ,ne-

gate a slrowing here' [of] actual vote dilution...', (kt,.)

llhe Court specifically examined the proffered justi-
fication. The State argued it had an unbroken historical
policy of not dividing counties in the formation of legis-
lative districts ancl that, as a result, the use of multi-mem-
ber districte was necessery. l'rior to Baher u. Carr, Z6g

U.S. 186 (1962), however, multi-member districts were not
"necess&ry" to avoid splitting counties because there ivas
no requirement that districts be balancecl in population.
'Ihus, at most, the State's interest was in preserving a
hoary relic.r0 Moreover, the Court below found that, what-
ever its genesis, this policy could not justify diluting the
votes of minorities, especially when it was not sufficient-
ly sacred to forestall the splitting of counties to meet pop-
ulation deviation requirements or to obtain Section b pre-
clearance. (J.S. at 50a) Put another way, the State's al-
leged "policy" w&s properly viewed as a srnol<escreerl.

2. Equal Opportunity to Elect Bepresentatives of
Their Choice.

(a) Limiting voting procedures.

The second prong of the Zirnm,er factor dicotomy con-

cerns the equal op1-rortunity of the nrirrority to elect reple-

Please also see footnote 1, supra.



16

sentatives of their choice. In Section 1(c) above, we dis-.

eussed ilirect limitations on partieipation, the most impor-

tant being diminished black voter registration. In this

section, the eoneern is with the indirici effeets of voting

proeedures on the practical capacity of minorities to elect

the eandidates of their choiee.

In this connection, the Court found that North Caro-

lina voting procedures, sueh as the majority vote require-

ment in primaries and a lach of a subdistrict resideney re-

quirement, had an adverse impact on black voting strength.

(J.S. at 29a-30a) In multi-member districts, majority vote

requirements have the practical effect of eliminating the

possibility that the majority voters will so spread their

votes over the white candidates as to allow a minority can-

didate to rank sufficiently high to obtain a seat beeause of

concentrated suppoit from the minority.

This requirement diminishes the effectiveness of

"single-shot" voting-the primary technique that minori-

ties have to combat vote dilution in a multi-member dis-

trict. With this requirement, minorities c&n no longer elect

their candidate by eoneentrating their votes. They must

depentl upon some cross-over votes from the white voters

in order to attain majority status for any blach candidate.

Even though the Court found no black candidate for

election to the Cleneral Assembly had failed to win art

17

election solely because of the majority vote requirement,rr
it "exists as a continuing practical impediment to the op-
portunity of blach voting minorities in the challengecl dis-
tricts to elect candidates of their choice." (J.S. at 30) Con-
gress did not, horvever, require that a plaintiff in a Section
2 ease tnust actually show that this lirnitation had affectecl

an election in the past. Congress rr&s concerned with the
interplay between this rule and the suspect voting proee-

dure (multi-rnember districts). Thus, the statutory focus
is on tlre potential, for affecting future elections. In ap-
proving the relevance of this factor, the Congressional re-
port notecl that the inrluiry was "the extent to which the
state . . . has usetl . . . majority vote requirements . . . or
other voting practices or proeedures that nta.t1 enltance the

opportunity for discrirnination against the minority group
. . ." S. Rep. at 28 (emphasis addetl) If Congress had de-

sired to impose a showing of actual impact on eleetoral suc-

eess, it would have usecl "have enhancecl", not ttmay en-

Itaneet'.

Additionally, North Carolina lael<s a subrlistrict resi-

dency reqttircment; therefore, all canrlida:tes for the legis-

lature in the multi-n-rember clistrict may hc from areas out-

side black neighborhootls. See Wh'ite, 412 U.S. 766, n.10.

This factor mal<es it far more lilrcly tlrat thc rnajority

rl The State asserts that, because of this fact, the lower
Court's finding in this regard is "absurd." We argue in- the
text following-this footnote that Congress did not intend the
factor to be-interpreted only in the past tense. In addition,
the Court below was well aware of the fact that a black candi-
date [H. M. Michaux, currently a member of the House from
challenged District 23 (Durham)l lost his 1980 bid for Congress
from th-e district which includes challenged district 23 because
of the majority vote requirement in the Democratic primary.



I8

voters will elect all of the representatives in the mrrlti-
member district, os w&s actually the ease in the challengecl
districts. (Plaintiffs' Exh. 4-8)

(b) The use of racisl appeals in political campaigxs.

The use of racial appeals in political eampaigrls affects
the opportunity tlrat blacks have to elect candidates. The
Court found that "[tlhe recor"d in this ease is replete with
speeific examples of this general pattern of racial appeals
in political eampaigns." (J.S. at 3Ia) Additionallv, for

'thc past thirty years the Court founcl raeial appeals to be

"widespreacl and persistent." (J.S.at 32a)

A logical inferenee to be made from these findings is
that these appeals have been sueeessful in eleeting mnior-
ity candidates. If they were noti then candidates using
them would have been weeded out in the political marl<et-

place. With this inference, it is easier to under$tand the

syllogistic relationship between raeial appeals anrl mull;i-

mernber districts. As shown by the fact that appeals to
raee is a suceessful election technique, voters in these dis-

tricts tend to vote along racial lines. Because of the use of
mnlti-member districts, the majority voter's practiee of
voting along racial lines lessens the opportunity for minori-
tiers "to clect representatives of their choice."

Tn an atrtempt to east cloubt on the lower Court's find-

ings, the State has selectively chosen six eampaigns in
which it concedes that racial appeals were made. The

' State then irnlrlies that these six national campaigns were

thc only eampaigns which underlay the Court's finding.
(App. Iirief dt 31) In fact, however, the Court explicitly

founcl tltat " [n]umerous other examples of assertedly

more subtlo forms of 'telegraphed' racial appeals in a

19

great number of local ancl statewide elections, abound in
the record." (.LS. at 32a)

Onee again the State makes an excellent argtment for
this Cour,t to clefer to the ffndings of the lower Court which
were based on days of testimony, hundreds of exhibits ancl

an intimate Irnowletlge of the North Carolina political en-

vironment. (See Appellee's l\fotion to Dismiss or Affirm
at pp. 8-42 for a full diseussion of this argument.)

(c) The extent of election of blacks to public office.

(il) Bacial polarization in voting.

The extent to which blacks have been elected to office
and raeially polarizecl voting bear directly ancl eritically
on the question of whether blacks have an equal opportu-
nity to eleet eandirlates of their choice. For a full dis-

eussion of eaeh item, see Sectiol III and Section II C and

f), respeoti v cly, inf ra.

, C. The Court Did Not Eold that Section 2 IIad Been' Violated because the Multi-Member Districts Pre-
veuted Proportional Bepresentation for Minorities.

ln arr ttttctnpt to substantiate its elaim that the Court
Iras eonrmitted an error of law, the State has seriously
misconstmecl the opinion bclow. 'I'he State tluotes the
Court's language that minorities are "'elTectively denied

tlre political power to further those intercsts that numtrcr's

alone rvould plesumptively give flthem] in a voting con-

stitueney rrot racially polarized in its voting beltavior,"'
(App. Brief nt 20) and then elaims that this statcment was

tlrc only factor upon rvhich Court based its finditrgs of vott,

tlilntion. (Id.\



,20

This interpretation is erroneous for two reasons' First,

the District court explicitly acknowledged that a violation

of Section 2 cannot simply be based on "the foct that

trlacks have not been eleeted under a challenged district-

ing plan irt numbers proportional to their percentage of

the population." (J.S. at 15a) (eitation omitted)' Secontl,

if the District court believed this one faet was enottglr to

warrant a finding of a statutory violation, it would not

have been neeess&ry for the Court to discuss and weigh

the numerous other Zimm.er faetors tlrat are presenl' in

tlris ease.

Instead, the lower court correotly analyzed the evi-

dence and found that blacks were "ptesumably" uttder-

represented so as to trigger a further investigation into

the causes of this underrepresentatiolt anomaly. If blacks

are not represented proportionately in a jurisdiction, l;his

is not a per se violation of Section 2' R'ather, it is an

anomaly which might be caused by illicit denial to a minor-

ity of their opportunity to participate iil the polirtical ltroe-

ess or whieh might be founiled in some other belign fac-

tor. This very underreprgsentation is, however, one cir-

cumstanee that courts are explicitly allowetl to use in ftnd-

ing that the minority ltave less opportunity to elect repre-

sentatives of their choice. 42 U'S'C' $ J9?3(b)' '

Ineontrast,itisthestatewlrichseekstorlisregar.d
the ,,totality of circumstaneest' standard by focusing on

one zi,nmer factor. The state esserts that, " [t]he degree

ofsuceessatthepollserrjoyedbyblacl<NortlrCnrolinians
is suffieien t in itsetf . ... to entirely diseredit the plaintiffs'

.theorythatpresentlegislativedistriotsderryblacl<sequal
aeccss to the political proeess'" (App' Brief at 2l) (em'

2t

phasis aclded) Ignoring Congressional as well as judicial

statements that the extent to which blacks are elected is

just one factor to consider in a Section 2 claim' the State

asserts that, solely because thore have been 18 blark vic-

tories in the challenged districts, no violation ean be found'

Iit. The Statets argumerlt fails for two reasons'

First, the number 18 is triply misleading (a) because

itincludestwoblackselectedfromtlistrictsnotchallenged
hcre (Ilouse l)istricts only partially within Senate District

2), (b) because it aggregates all of the black victories at-

taincd in the se\en challeilged districts and (c) because

t}risnumlrerofvictoriesisinfinitesimalint}recontextof
the number and years of eleetions sinee 1900 in which black

candiclates were not even at the starting blocl<, let alone

the finish line. I-iumping victories together masks the tme

effectsthatthesemrrlti-member.districtshaveontllemi-
nority's a.bility to participate in the electoral system' Atl-

hering to the judicial mandate whieh requires an intensely

loealized examination of the facts involved in Section 2

claims, White tt. Regester, 412 U'S' at 769' the number of

victories are put in their proper perspeetive only when dis-

aggregatecl into their respective clistricts and comparetl to

the numtrer of elections lost'

Irr both House District 8 (trdgecomhe, Nash, Wilsorr)

ancl senate District 2 (Eastern North carolina), no black

ha,s ever 12 becn elected to the legislature't3 To the ex-

tz As oointed out above, it must be remembered that "euer"
i. , r#Lii.i," ;"N;;ih arorini poritics-since 1e00, eighty-

five year"s and three generations ago'

13 Two representatives have .been- elected from House Dis-

tricts within Senate iJisirict Z. but th.ese two House Districts

;;;;"i being challenged in this lawsuit'



22

tent that the state relies on black vietories in order to'

outweigh the rest of the Zimrner factors, the State must

coneede a violation in at least these two districts'ta The

state acknowledges this fact when it cites the authorita-

tiveness of the }Iouse report's statement that

[i]t would be illegal for an at-large election.sch.eye

io" " 
particular iut" ot local body to permit a bloe

"lting 
*u;ority ovei a substantial periocl-of time con-

sisteritly to ttefeat minority eandidates' II' Rep' at 3o'

The white majority having always defeated the minority

canrlitlatesinHousel)istrictEandSenateDistrict2,there
shoulrl be no question left of the propriety of the lower

Court's eonclusions and order with regard to them'

In tlre rest of tlre clistricts, the asserted ..substantial,'

blach sueeesses actually eonstitute only a pitiful "fe'w" vic-

tories when they are disaggregated' fn House Distriet 36

(Mecklenburg) and Senate District 22 (Mecklenburg/Ca-

trarrus) only one hlaek from each district has ever been

sueeessful. (.I.S. at 34a) In I{ouse District 21 '(lMake)

only ono black candidate has ever been successful' and lre

wts ,"el"cted only onee" (J'S' at 35a) In Ilouse District

39 (Forsyth), three blachs were elected but only one of

tltese was elected for tvlo terms and the two elected in 1982

were successfttl only after this litigation was begun' It is

important that the blacl< victor, Hauser' testified at the

trial that whites had sucl<lenly become extrernely support-

ive of his campaign. ('S'ee Hauser Deposition) (J'S' at

iiSa) Ilousc District 23 (Durham) has had the most rep-

" t" 
"ddition, 

as the Solicitor-Cene-ral correctly notes in tris

$Hli:llf""Jl::i:*l';'.'"tx;,1',*kll[lli:5.x1i:';-?",'3'1fl :
5itfiil"L;;;';-.o";1"i";;;ith regard to House District 8

and Senate Oistri. i. Ai'" t"trtt,.s,immary affirman'ce.wou.ld

il;*;;;i';:'ihd''i" ait"ii"i h.ere oniv because the pic-

ture of raciat vote iiriiJ"-i"-ttroi" ai.triAt ii itlustrative of the

other challenged districts'

23

resentation by blacks, having,a black member of the House

every year since 1973. (Id.) Even these five victories are'

however, insignificant when one consiclers that there have

been only two iildividuals involved and that the incumbent

since 19?8 (l(enneth spaulding) has run uncontestecl each

time in either the primary, the general election, or botlt'

'Ihe Court below, all of whose members are from North

Carolina, was well able to understand this phenomenon

based upon its jndicial notice of the fact that Mr' Spauld-

ing is a member of one of the most prominent Durhanr

br.irrus, families't5 In this connection, Mt' Lovett' the

Presitlent of the I)urham Committee on the Affairs of

Blacl< People, testifiecl without contradiction that a' nec-

essary factor in the committee's solicitation of blach can-

diclates was its perception of the black candidate's accelr-

tance by the white cornmunity, with particular entphasis on

15 The State asserts that the minority's right to elect can-

didates of their choice ii not tantamount to fhe risht to elect

candidates of their tr;;.'ii;i. gti"f 
't 33.) lf this coi-rtention be

i,il;'id;;rr""" it uq,'lii so-th" election of -a particular

i;i;;k';;;;ot-be proLliivd of the minoritv's abilitv to elect

candidate's of their choice'

When minority candidates run unopposed in a political

contexi'wittr i f,irt6.y oi ,"ty t"."nt officidl discrimination and

il;ti"t?;; 
';i.i"iii pfuiiized'voting (includine the refusal o(

whites to vote tor even the unopposed blacksi, a Court should
pive more rhan a prrrlns'iirrii;i[o th; probaiive value of their

Si"itiiii';i;;;;;':;-A "-o,e at'p'opriaie inrerence would be

ih;i"til; Ufril, irnaidate in qu'es.tibn rtras accep.table to the

Jominant white maiority while alleviating potential racral un-

rest in non-Political areas.

Theothersideofthesamecoinisthewell-knownpolitical
tact itra=t liepuUiicans do not contest the seats of many con-

servative Ddmocrats in the South. ln neither case, however,
;;;-ii,; minority actually have.the-.opportun'1ty to elect,rep-
resentatives of th'eir choice. ln the first case, the black minor-
iw seti an official of their race but whose economic interests
,7" "-otJ aligned with those of the dominant white maiority;

(Contlnued on next Page)



24

the candidate not being outspoken with respect to the par-

ticular concerns of the black community.

Second, Congress and the courts have been explicit

with regard to the slight weight which shoulcl be affortled

to a few minority victories in Section 2 alaims. In Zim'
me.r, the defendants arpSred thart the vietories of three

blael<s in a challenged district should foreelose a finding of

vote dilution. 4&1 E.zd at 1307. The Court rejeeteil this

argument on the ground that it would "merely be inviting

nttempts to eircumvent the Constitution" by eneouraging

those wlro wish to thwart a successful challenge to an elee-

toral sehelne to engineer the election of a few blacks'

4S5 tr.2d at 1307. Tlte mere possibility of encouraging at-

tempts to thwart vote dilution cases in this marner was

enough for the Court to reject the defendants' argumettt'

without requiring a faetual finding that sueh an attempt

lrad artually occurred

Congress has also emphasized that black suecess is

just onc factor among the totality of eircumstances to be

(Continued from Previous Page)

in the second, the Republican minority Eets an fficial suit-

"bte 
to its economic iitereets but who will vote with the op-

"L.iti6n 
on the critical question of organizing the House or

benate. ln both cases, the result is a half-way house f-or ?-mi-

"i.lti-"t ""i ontv par-itv etfranchised. ln the'case of the black
rnin"'ritfr howev6r, the right to full political equality is guar-

anteed by S 2.

Perhaps even more important,- the extent to which the po-
litical comnromise suggestid by the anomaly of a black run-

'ning unop'posed by t-he domiriant white m.aiority.s.ho-uld be
ion"sidereb'p ro or con the State in the evaluation of this Zimmer
f".tor, is uniquely a question for the trier of fact, in this case

a Court of three distinguished citizens of the iurisdiction in
ouestion. With the bene-flt of their local knowledge, experlence

"hd "ppreoiation, 
they have decided that the qrealer. weight

of the'factor cuts agaihst the State; that appropriately inspired
conclusion should nbt be disturbed here.

25

considered. S. Il,ep. at 194. Thus, isolated victories are

not dispositive of vote dilution I instead, their paucity con-

firms the lower Court's finding that blacl<s have been un-

able to elect candidates of their choice in the challenged

rlistricts.

D. Because of Single-Shot Voting Techniques, Lim-
ited Black Electoral Success May Mask the Be-
sults of a Discriminatory taw.

Single-shot voting may enable blacks to be elected, yet

they will still have less than the statutorily required eqtal
opportunity to elect candidates of their choice. By the use

of single-shot voting, blacks will appear to cnjoy some

Buccess at electing candidates of their choice, while they

are actually being deprivetl of their right to vote for a full
slate of candidates. (J.S. at 41a)

When minorities are plaeed in a multi-member tlistrict,
one of the techniques they use in order to get a particular

eandiclate elected is to "single-shot" their vote' In theory,

the minority voters will all vote for the minority candidato

and not cast the rest of their votes for any other candidates

in the race. This tactie deprives the other candidates of

the minority vote and, thus, the minority candiclate has a

bctter chancc of being elected &s one of the top vote get-

ters.

fn order to use this methotl to elect their candidate,

the minorlty must forfeit their right to vote for any of the

other representatives from their multi-member district.

rn eontrast, the majority voters are able to cast all of their

votes. The majority is able to influence the election of all

representatives while the minority, by "single-shot" vot-

ing, is only able to influence the election of one represent-



26

ative. If the minority ehoses not to "single-shot" vote in

a multi-member district with several zirnmer factors pres-

ent, they will be deprived of. att, opportunity to eleot a

canrlidate of their choice. Either way, they will have less

of an opportunity to elcct candidates of their choice than

the majority voters anrl are thereby deprived of their stat-

utorily guaranteed right.

II. THE OOUBT PBOPERLY USED A DEFINITION OT

voTE POLABIZATTON WEICIT WOULD BE API
PLICABLE TO JURISDICTIONS IN WHICII
BLAGKS WIN A TEW ELEOTIONS.

A. Vote polarization exists whenever the difference

beffiein the percentage of blacks and the psrcont-

age'of whites who voted for black candidates is

sibstantial enough to display a consistent pattern

of voters casting ballots along racial lines'

To interpret raw staiistics under a vote rlilution elaim,

theCourtmustloolrattlrealtcrnativesavailabletovotcrs.
The lack of white caldiclates in some races will uncharac-

teristicallyincreasetheminoritycandidates,votetotals.
Even in raceg such as these, however, pieces of the perva-

sive vote polarization pattern can still be discerned' For

example, black candidates may receive Bome whitc support

inafcwclectionsbutthatsupportisstillfarlessthanthc
almost unanimous support of black voters' This rlifference

in voting couforms to the pattern of racial bloc voting al-

readycstablishedinotherracesintlresedistricts.Inthis

"uru, 
tL" lower Court utilizccl precisely this analysis in its

extcnsivc tliscussion of bntl findings with regartl to spe-

cifio elcctions in the indivitlual <listricts. (J.S. at 384-46a)

Contrary to the assertion of the State (App' Bricf at

ii6), the lower Court ilitl not find racial bloc voting wlten-

m

ever less thatt 50/o of the whites voted for the black candi-

clate. This definition was implicitly disavowed by the

lower Court. F or example, in the Court's discussion of

polarized vobilrg in Mecklenburg County, it pointcd to the

fact tlrat black candidate Berry received 50% of the white

vote. The Court still found polarizetl voting in Mecklen-

burg despite this fact because, in the race in which Berry

received these votes, there were only seven white canrli-

rlats running for cight positions. (J.S. at 42a)

Similarly, in Durham County, when a black candiclatc

received votes from 43/o of the white voters in the 1982

Cleneral Election, the Court once again found eviclence of

polarized voting. (J.S. at 444) The black in this election

ran unopposed. Thus, the Court found that 57% of thc

rvhite voters failed to vote for the blacli candidate caen

when no otlw cltoice uas artar'lable. In comparison only

ll% of the blacks failecl to vote for the unopposecl black'

The Court helcl, compellingly so, that tlte voters in this

election clearly votecl along racial lines despite the fact

that the black candidate obtainecl substantial white support

and actuaily won the election.

In this same vein, vote polarization cnnnot simply be

founrl as a matter of law if less than 50% of the whites

vote for the black candidate. The appcllants set up a

"straw m&n" by accusing the lower Court of using this

definiiion. It completely ignores ilre standarrl by whioh

courts, including the District court in this case, clecide

whether the peroentage of white votes attainecl by the

blach candidate is aberrational. The standard actnally

used not only focuses on the white support for black can-

didates, but also includes an examination of the way blacks

voted. simply because less than 50/o of the whites voted



28

for a black oandidate tells the Court only half the story o"f

polarization. lf less thanl}% of the blacks also voted for

the black candidate, then no polarization is shown'

The Court below eertainly understood and appreciated

this principle when it cited the 1978 elections in Houss

Districts 39 (Forsyth) and 23 (Durham) where the black

canditlates, Sumter and Barnes, eaeh received less than

5O/o of the votes of both blacks and whites. 'Ihus, iilherent

in any defiuition of polarization is a comparison bctweerr

the voting habits of two groups.

'Ihe state argues that because blacks have received

white support past certain numerical levels that polariza-

tion cannot be found. vote polarization cannot be defined

so disoretely because it exists on a spectrum' Congress

did not expect courts to generate an absolube cut-off'point

with respect to the percentage of white votes obtained

which would foreclose a finding of vote polarization. In

listing lhe zim,mer factors, 0ongress instruoted the courts

to examine ,,the entent to which the elections of the state

or political subclivision is racially polarized'" S' Rep' 97-

*|7at29(emphasisad<led).ForCongress,thefindirrg
of racial polarization is just one factor which' itself' can

exist at many different levels of intensity'

The CourtB, also, have recognized that polarization

cannot be defined discretely' ln tJniteit Stotes o' Marengo

Coutr,tg, the Eleveuth Circuit recognized that polarization

can be shown through direct statistioal evitlenie or it can

" 'be indicated by a showing under Zimmer of ' ' ' past dis-

crimination in general . ' ', large districts, majority vote

requirements, anti-single shot voting provisions and thc

lack of provision for at-largc candidatcs running from

llarticular geographic subdistricts'' " 731 f'2d 1546' 1567'

N

n.34 (1984) [quoting Neoett o. Siiles, 571 F.2d 209, 223,

n.18 (5th Cir. I-978)1. Because polarization can be shown

on the basis of nonstatistical evidence, it is rtot a concept

rcbutted by a defined cut-off point.

In the instant ease, the finding of vote polarization

was bascd on far more evidence than that which was held

to be sufficient in Rolyers tt. Loilge, 458 U.S. 613 (I982).

In Rogers, this Court affirmed a District Court's finrling
that the at-large system of electing commissioners in Burke
County, Cleorgia, was being maintained for "invidious pur-
poses." 458 U.S. at 616. In this Court's examination of
the Zimmer fae,tors present, evidence of vote polarization
was deemed "overwhelming", 458 U.S. at 623, basecl solely

on statistics generated when two blacks ran for county

commissioner.ls

Itt Rogers, the District Court had examined three pre-

cinets with a clear majority of blacks and one precinct with

a bare majority of blacks. The Court compared the two

blach candidates' suecesses in these four precincts with

their relative lack of suecess in predominantly white pre-

cincts. Statement as to Jurisdictiot at 73a, Rogers u,

Lod,ge,458 U.S. 613 (1982). One'black won in all four
blach precincts and lost in all of thc white precirtcts. Id'-

The other black canclidate won in three of the four black

precincts ancl lost in the white precincts.rT Id.

There are two relevant points to make about this

Court's finding of vote polarization based upon the facts in

16 ln contrast, the Gingles District Court analyzed between
five and 15 elections in each district.

t1 lt was not made clear whether this second black candi-
date lost in a district with a clear or bare maiority of blacks.



30

Rogers. First, the Court did not require the blaeks to win

in every black precinct in order to find vote polarization'

Thus, even though the blacks did not enjoy unanimous blaclt

support, polarization.w&s still found. Similarly, as in the

case at bor, even though some whites voted for a blaclr ean-

didate, this fact did not foreelose a finding of vote polari'

zation.

Second, the Rogers Court relied on the District

court,s finding of vote polarization and did not examine

the record further to establish by how mueh the black can-

rlidates lost in each of the white districts. Instead, it was

sufficient for a finding of vote polarization that blacks

basically won in the black precincts and basically lost in

the white precinots.

In contrast, in this case, the lower Court's conclusion

is supported by a regression analysis which established the

d"gr"" of black and white support for the black cancliilates

in each raee. As a result of this analysis, the Court fountl

notonlythatblacksalmostuniformlylostinwlritemajor-
ity <listricts but .also, and more importantly, that in all

coses the support of black candidates by white voters dif-

fered fundamentally and dramatically from the support of

black canclidates by blacir voters' In other words' the lower

CourtinthiscaseeompliedwithCongress'marrdatetode.
termine the "extent" as well as the fact of racial polariza-

tion. S. ReP. 97-417 at 29'1t

rt Both the State (APP. Brief pp. af-a{)-.ar1$ the Solicitor-

c"n"tliit'oi. c"n. erilf-r[iy, 19Bs i''.30 n'57) disparage the re-

;#'u;;;iG; ;"li;i Jp"'i bv thL lower court' rhev are ap-

tailntfv unaware or igno'tt the'fact that the State's own expert

(Continued on next Page)

31

By prescnting o study that correlated a candidate's

race rvith the race of voters, plaintiff Gingles made a gtrima

facie showirrg of vote polarization. This showing could

have bcen rcbuttcd by the State if it hacl presentcd other

stuclics rvhich showad that factors other than race better

cxplain the elcction results.le li'or example, in I'errazas a.

Clements, the District Court refused to find polarized vot-

ing when an hispanic candidate receivetl 90% of the votes

in "hispanic districts" and only 35/. of the vote in "anglo

districts." 581 F. Supp. L329, 1352 (N.D. Texas, 1984).

The defendant there rebutted plaintiff 's prima faci,e case

with evidence that hispanics and whites voted along party

lines, which explainecl the results in more clectiotts thatt

did the racial polarization theory. 581 Ii'. Sopp. at L352.

fn contrast, the State here macle no such attempt to rcbut

Gingles' pri,ma facie shotving (J.S. at 38a, u.29) whioh,

consequently stands unchallenged.

(Continued from Previous Page)

"did not question the accuracy of the data, its adequacy as a

reliable sainple for the purpoie us-e, nor that the methods of
analysis useti were standard in the literature." (1.S. at 39a, n.29)

ln addition, the general reliability of the plaintiff's elpert
analvsis "was further tonfirmed by the testimony of Dr. Theo-
dore Arrington, a duty qualified expert witness . . . . Proceeding
by a some*hat different methodology altd using different data,
Dr. Arrington came to the same general conclusion respecting
the exten[of racial polarization . . . ." (ld.)

te The Solicitor-Ceneral concurs that the burden of going
forward shifts to the defendant after the plaintiff has made out
a prima facie case. Sol. Cen. Brief July, 1985 p. 30 n.57) See
Tixas Dept. of Community Aftairs v. Burdine, 450 U.S. 248
(1981).



n

B. The flnd.ing of vote polarization is not foreclosed
by the mere fact that blacks have won a few elec'
tions.

The District Court, using vote polarization only as one

.factor in its vote dilution analysis' wtts correct in holding

that a few black victories did not, of themselves, prevent

the Court frorn finding vote polarization.

Scction 2 of the Voting llights Act rloes not protect

minority voters only when they are completely slrrrt out of

the electoral process. Rather, it bars any practice that

creates a clintate in which minorites have "less oppor-

tunity than other members of the electorate to participate

in the political process aud to elect representatives of their

choice." 42 U.S.C. 1973(b).

Congress made it clear that a few black victories did

not foreclose o vote dilution claim. In its discussion of

token black victories, no mention was made of thc fact

that black victories foreclose a finding of polarizatioil.

S. B,ep. at 29, n.115 and at 194. Because all of the

Zimmer factors are mutually independent, a fincling that

one factor is absent or. inapplicable cannot preclude the

fintling that another is .present and critical; therefore,

simply beeause a few blacks win, this does not rebut the

separate factor of vote pol'arization. As a result, the Dis-

trict Court looked for, and found, overall patterns within

each district rvhich indicatetl that citizens in the district

consistently votecl along racial lines. 
'

Thus, even when blacks win, a pattern of polarization

can still be evident. It 90% of the blachs vote for a blach

carrdidatc antl only 25/. of whites do so in a district rvith

a population less than 62/o white, the bltch ea.nditlate will

33

win. It is clear that, in this example, vote polarization dicl

not cost the black the election; lt should, however, be

obvious that significant racial polarization was present'

It should be equally obvious that vote polarization c&n

exist in a d.istrict when the court examines other elections

in which blacks do lose. One or two blach victories can-

not make up for a host of black losses. To the extent that

Congress indicated its awareness that, in many vote dilu'
tion eases, there would be some black victories, it would be

crroneous to say that randotn victories prevent tlre Court

from fintling the presenee of such an inrportant factor as

vote dilution.

fn fact, the State's various contentions in this regard

eonsfitute a logical mor&ss. It argues that, if the lower

Court usecl an errolteolls deffnition of vote polarization,

the Court's decision must be overturned. Implicit in this

argument is the principle that vote polarization is integral

to a finding of vote dilution. If this were trtte, ltowever,

i,ts argument that black victories Preclude the court frorn

finding vote polarization fails. If black victories defeat a

fincling of vote polarization, whielt in tut'n prevents tlte

Court from lrolding that trlacl< votes are tliluted, then the

eongressional ttrandate (S' Rep. at 29) that a few blacl<

victories clo not defeat a vote clilution claim is thwarted.

III. EVEN IT TIIE LOWEB COUBT DID NOT ABTICU-
LATE TIIE PROPER DETIMTION OT VOTE PO-

LARIZATION, TEE BECOBD IS REPLETE WITII
rACTS SUPPORTING THE COUBT'S TINDINC OT
IMPERIYIISSIBTE VOTE DILUTION.

Ir lAhite a. Regester, 412 U.S. 751-r, this Court found

vote dilution without making a findirrg of vote pola.riza-

tion. This ease is especially pertinent beeause even the



34

State concedes that it was Congress' intent to codify the
Court's analysis in White into the 1982 amendments to the
Voting Rights Act. S. Rep. at 22-24. (App. Brief at 1&
l8) This Court inWhite upheld a District Court's invalirla-
tion of multi-member districts in Texas and its resulting
order to have them redra\trn as single-member districts.
The Conrt justifietl this holding " [b'lased on the totality
of. tlre eireumstanees." lVhite,412 II.S. at 769.

Specifically, the plointiff in ll/lfite claimed that the use

of multi-member districts was invidiously caneelling or
minimizing the voting strength of racial groups in Dallas
and Ilexar Counties. 412 U.S. at 765. This Court held

that, in order to sustain sueh a elaim, the "plaintiff's bur-
de-n is to produce evidenee to srtpport findings that the

poli'tical process lcading to nomination and eleetion were

not equally opert to participation by the group in ques-

tion- that its rnembers had less opportunity than did other

residerrts in the district to participate in the political proe-

esses antl to elect legislators of tlreir choice." 412 U.S. at

766 (citation ornitted).

ln exarnining the multi-member district in l)allas

Counlty, this Court outlined the types of e.vidence that
would meet the quoted standard and thereby enable the

plaintilts in a vote dilution ease to prevail. It was enouglt

that the District Court examined the official history of
racial discrimination,the white dominated political organi-

zation which was unresponsive to the needs of minorities,

thg use of racial campaign tacties anrl the limited electoral

sueeess of blac,ks. 412 U.S. at 766. The Court also foutrd

that Texas election rules, suelt as a ma;iority vote rttle and

the "placc" rule, which required candidates to run in head-

35

to-head eontests, ",enhaneed the opporturrity for racial
tlisr:rirrrination." 4LZ U.S. at 766.

'lllrc findings inlVhite are remarkably similar to those

of the Conrt below in this case.2o It is critical that, in
Wh,i.te, trvo blacks hacl beerr electe.d from the multi-member

20 The only factor not present in the case at bar and found
in White is of minor importance. The White court found the
presence of "a white-dominated" slating organization which
"did not need the support of the Negro community to win elec-
tions in the county, and it did not therefore exhibit good-faith
concern for the political and other needs and aspirations of
the Negro community." White, 412 U.S. at 766-767.

Howeverr "Iu]nres;ironsiveness is considerably Iess im-
portant under the results test." United States v, Marengo Coun-
ty, 731 F.2d 1546, 1572 (1rh Cir. 1984). ln Marengo, the ap-
peals court held that the District Court's finding of "no 'sub-
stantial lack of responsiveness'" of officials should not weigh
heavily against a finding of dilution. 731 F.2d at 1573. TFe
Marengo court made two arguments. "First, Section 2 pro-
tects the access of minorities not simply to the fruits of !ov-
ernment but to participate in the process itself." 731 F.2d al
1572. ln other words, even if the needs of minorities are ca-
tered to superficially, this fact does not rebut evidence that mi-
norities are excluded from full and equal opportunity to par-
ticipate in the political process. Second, in cdritrast to ihe oiher
Zim-m.e1 factors, "responsiveness is a highly subjective matter
and this subjectivity is at odds with the imphasii of Section 2
on objective factors." 731 t.2d a|1972.

-... -Furthermore, although this one ',slating,, factor from the
White case is absent from the instant case, tFere is an addition-
al factor in this case not present ln White. When the lower
Court in White examined Dallas County, it found that ,,[i]n con-
sequence of a long history, only recenily alleviated to s-o-me de-
gree, of racial discrimination in public ind private facititv uses.
education, employment, housin! and health care, black'resiil
tered voters of the State remain-hindered, relative to the w6ite
majority, in their ability to participate effectivety in the political
process." (f .S. at 26a) The Court in White did r.iot find that this
factor was present in Dallas County but did state it til ;; i;:
portant factor in Bexar county, which contained the other chai-
lenged dlstrict. 412 U.S. at 76b.



36

district in Dallas County and impermissible vote dilution
was still found. ,Similarly,. the District.Court in White
found vote dilution in Bexar County even though fi,tte

Mexican-Americans had been elected fronr that multi-rnem-

ber distriot. Graoes a. Barnes,343 F. Supp. 704 (!V.D.

Tex. 1972), aff'd in part sub nom. Wh,ite u. Regester, 412

U.S. ?55 (1973). 'l'hus, as is argued above, the elections

of a few blaclts negates neither vote polarization nor tlte
propriety of a finding of impermissible vote dilution.

Irr surnmary,lYlfite found vote dilution without a find-

irrg of racial polarization. 'l'he court it White based its
holding on the sarne findings that the lower Court relied

upon ltet'e. 'l'he only faetor not present here is of minilrral

irnportartce antl is more than oflset by the additional factor

of socio-economic inequality. Consequently, this Court

should, as it did h lVhite, find that "these findings and

conclusions are sufficient to sustain the District Court's
judgment with respect to the . . . multi-member districts

. . ." +LZ U.S. at 767.

CONCLUSION

'l'he Iower court's holcling that I{ouse District B (Edge-

combe, Nash, Wilson) and Senate District 2 (northcastern

North Carolina) violate Section 2 should be a{firmecl on

either of two grounds: first, that the notation of prob-

able jurisdiction does ndt eover the State's appeal as to

them; seeond that together with the other Zimmer factors

present, the fact that no black has ever been elected to a leg-

ielative seat from those districts clearly establishes that the

37

political processes in those districts was not and is not

equally open to minorities'

llhe lower Courtrs holding that House Districts 36

(Mecklenburg), 39 (Forsyth), 23 (Durham), 21 (Wake) and

Senate District 22 (I\{ecklenburg/Cabarrus) violate Sec-

tion 2 should be affirrned because minorities there have

neither an equal opportunity to partieipate in the political
process nor an equal opportunity to elect representatives

of their choiee in that, &mong other cireumstances, (a)
prior and current raeial discrimination has resultecl in dra-
matically lower voter registration percentages for blacks,

(b) eleetions trhere are marred by persistent and severe

racially polarized voting and (c) only a paltry number of
blacl<s has ever been elected to the legislature from these

districts.
Respectfully submitted,

*C. ALLI'N FOSTER
I(ENNETH J. GUI{BINER

F osrrn, CoNxun, RossoN & GurtruNnn, P.A.
104 North Ehn Street
Clreensboro, North Carolilra 27401
(ele) 273-1733

Att orne11 s f or App ellee s / I nt era eno r s

'Counsel of Record

August 1985