Appellants' Brief

    ,, , ' '' ; :t,, 
---ti.'rrlij;iili,ll:r4i,iirjji','j:i11 i' i:iii;;:

a

lilnitril Stutrs

Appefiants,

Appellees.

BRIEF

'. Jluns'Wer,r,ecn, Jn.
Deputy Attorney General for I-regal Aftairs

; Tr.lnn B. Sunuv
. Nonue S. Hennnr,r,

Assistant Attorneys General
, Attorney General's Office

N.C. Department of Justice
: Post Office Box 629



I

QUESTIONS PRESENTED

f. \[hether Section 2 of the Voting Rights Act en-
titles protected. minorities, in a jurisdiction in
which minorities actively participate in the politi-
cal process and in which minority candidates win
elections, to safe electoral districts simply be-
cause a minority concentration exists sufficient to
create such a district.

If. 'Whether racial bloc voting exists as a matter of
law whenever less than 50 percent of the tvhite
voters cast ballots for the black candidate.



ii

PARTIES TO TIIE PROCEEDING BBLOW

Tho Appellants, defendants in the action below, are
as follows: Lacy E[. Thornburg, Attorney General of
North Carolina; Robert B. Jordan, fII, Lieutenant
Governor of North Carolina; Liston B. Ramsey,
Speaker of the House; The State Board of Elections
of North Carolina; Robert N. Hunter, Jr., Chair-
man, Robert tri. Browning, I\fargaret King, Ruth T.
Semashko, 'William A. Marsh, Jr., members of the
State Board of Elections; and. Thad Eure, Secretary
of State.

iii

TABLE OF CQNTEIYTS

Qursuorvs Pnnsrrrno

Panrrrs ro rrrE Pnocnnorrc Bor.ow

Tesr,p or Aurnonrrrrs

Oprrrors Bnlow

JunrsorcrroN

Corsrrruuorvrrr, PnovrsroNs AND Sr.rrrrrss

Srrrtpuort or rrrp Caso

The Genesis of the Challenged Redistricting plans.

The Plaintiffs'Claim
Political Participation and

Blacks in the Challenged
Eleetoral Sueeess of

Voter Registration

Sulrltany oF TrrE Anculrsxr

Ancuuerr

lntroduction

trict.

A. History of official
the right to vote.

Districts

Page

I

ii

v

1

t4

15

15

1

2

2

2

4

6

t2

I. Section 2 of the Voting Rights Act cloes not cntiile
protected minorities, in a jurisdiction in rvhich nri-
norities actively participate in the political I)roccss
and in which minority candidatcs ivin elections, to
safe electoral districts simply beeause a nrinority
concentration exists sufficient to create such a dis-

l9
discriminatiorr rvhich touched

25



iv

Tanr,n or. CoNrnNrs continued
Page

The extent to which voting is racially polarized. 2T

The majority vote requirement. ... 2T

The socio-economic effects of cliscrimination
and political participation. 2g

Racial appeals in political campaigns B0

The extent to which blacks have been elccted. . . g2

Responsiveness. . gz

Legitimate state policy behind county-based

II. Racially polarized votirrg is not established as
matter of larv rvhenever less than a majority
white voters vote for a black canclidate-

Corcr,uslow

Cases:

Arlington Heights v. lletroTtolitan
ment Corp., 429 U.S. Zb2 (1977\

v

TABLE OF AUTHORITIES

B.

C.

D.

E.

F.

G.

H.

Boykins v._City of llattiesburg,No. HZ7-0062(c) (S.D.
I\[iss. March 7, 1984), at I .

City of lllobile v. Bolden,4l6 U.S. 5b (1931) .....
Collins v. City of Norfolk, No. SB-526-N (8.D. Va.

page

Hou.sirtg Derelop-

. pa.s.stnL

July

16

q7

&

of

19, 1984) 39,43

Daaid, v. Garrison,553 F.2d g2g,g27 (5ilr Cir. tg77) .. 20

Doue v. n[oore,539 F.2d lllt2, LLil (Sth Cir. 1976) . . . Z0

Hend,rir v. Jose7th,559 F.2d 1205 (bth Cir. 1977) . . . . . 25

Jones v. City of Lubbock, 230 F.2d 2JB (Jth Cir. 1934)
(reh'g en banc denied) . . . 39,42-43

Lee County Branclt, of the NAACP v. City of Opelit;a,
748 F.2d 1473 (5th Cir. t9Z3) 4g

trIajor v. Treen,574 F.Supp.325, 6ir (lr.D. La. lgSiJ) . 25

trIctrIillan v. Escambia County, Florida,683 F.3d 960
(5thCir. 1982). .......40

NAACP v. Gadsden County Scltool Bourd, Ggl F.2rl
978 (11th Cir.1982) {0

Ouertonv. City of Austin, No. A-84-C,\-189 (N.D. Tcx.
Ilarch 12,1985) at26 . .. 81,33,{3

Rogers v. Lodge,458 U.S. 613 (19S2) . . 3{,40

Seamon v. UTtltam, Civil No. P-S1-{9-C:,\ (E.D. Tex.
Jan.30, 1984) . 33

Terrazas v. Clements, 537 F.Supp. irt-t (N.D. Tcx.
1934) . ..3t),+3

lYhtte v. Regester, 412 U.S. 7ir5 ( 1l)7:)) ptssinr.

lVashingtott,v. Duuis,12(; U.S. 229 (1976) ..... lir-16

Zinrmerv.lIcKeitlr,en.,135 f.2d 1297 (i-rth Cir. 197{) . :l:,2-t

Ji)

45



IN THE
vl

T,tsle or Aursonlttss continued
Page

CoNstttutroNs:

United States Constitution, Fifteenth Amndment ' 2,15,16

North Carolina Constitution, Art. II, $ 3(3) " " 2'3

North Carolina Constitution, Art- II, $ 5(3) ''" 2'3

Smtutns:
Voting Rights Act of 1965, as amended

Section '2 (42 USC $ 1973)

Section 5 (42 USC $ 1973c)

28 U.S.C. $ 1253

I\ftscnu,eNEorrs:

128 Cong. Rec. S. 6920

128 Cong. Rec. S- 6964

128 Cong. Rec. S. 6962

L7

t7

18

Suprrmt 6.nwt uf tftr lllnitr'il Statrs
OcrosER Tonu, 1985

No. 83-1968

Lecy I[. TronuBURo, et al.,

v.

Rer,pu Grxcr,rs, et al.,

ATtpellants,

Appellees.

On Appeal From the United States District Court
for the Eastern Districr of North Carolina

APPELLANTS' BRIEF

OPIMONS BELOW

The opinion of the United States District Court
for the Eastern District of North Carolina in this
case was rendered on January 27,198+. A copy of
the Court's Opinion and Order is set out in the .Iuris-
dictional Statement at Appendix r\.

JURISDICTION

The case below was a class action by blaek roters
of North Carolina ehallenging certain districts in the

post-1980 redistricting of the North Oarolina General
Assembly. The appellants filed their Notice of Appeal
on tr'ebruary 3, 1984. This Cotrrt noted probable juris-
diction on April 29, 1985. The jrrristlit:tion of this
Court is invoked under 28 U.S.C. $ 1253.



q

CONSTITUTIONAL PROVISIONS AIID STATUTES

The United. States Constitution, Fifteenth Amend-

*ent,' and Sections 2 and' 5 of the Voting Rights Act

of 1965, as amend ed', 42 U'S'C' $$ 1973, 19?3c are set

iorth in the Jurisdictional Statement at 59a' The fol-

io*i"g provisions of the North Carolina Constitution

or" "Jt 
.ontained' in the Jurisdictional Statement:

Art.II, $ 3(3), N.C.Const'

"No county shall be divided in the formation of

a senate district."

Art. II' $ 5(3), N.C. Const'

"No county shall be divided in the formaticn of

a rePresentative d'istrict' "

STATEMENT OF THE CASE

The Genesis of the Challenged Redistricting Plans

fn July of 1981, the North-.Carolina General As-

..*Uty enactecl a legislative redistricting plarr^in ortler

io .oofor* the Stite Senate and }Iouse of Repre-

sentative Districts to the 1980 census' In keeping rvith

,-iOO year old' practice in lhe -State' 
the plans con-

sisted. of a comb'iootio" of single member and' multi-

member districts ana "otn 
district was composed- of

;i;h., a single county, or two or more counties' so that

no county was dividfd' betrveen legisla-tive districts'

tn" pfoiotiffs beiorv fiIecl this action on September 16'

1gg1 in the uniied stot.. District court for the Etst-

ern District of North Carolina alleging -lP?nq 
other

things, that the multimember districts dihrted' black

voting strength.

In October 1981, in a special session' the Gcneral

Assembly ,.p.oita'ood "i'orked 
the $ouse plan to

3

reduce the population deviations. Beeause forty of
North Carolina's 100 counties are eovered by Seetion
5 of the Voting Riglrts Act, the revised Ifouse plan
and the Senate plan rvere submitted to the Attorne.r'
General for review.' The Attorne.v General interposed
objeetions to both proposals. Ife found that the state
poliey against dividing counties resulted in the crea-
tion of multi-member distriets rvhich in turn tended
to submerge black voters in the covered eounties.'

t Seetion 5 of the Yoting Rights Aet requires eovered jnrisdie-

tions to either submit any voting change to the Attorney General
of the United States or to ffle suit in the llnited States Distriet
Court for the District of Columbia for deelaratory judgment.

Seetion 5 provides in pertinent part:

Whenever a [eovereill State or politieal subdivision . . . shall
enact or seek to administer any voting qualifieation or pre-
requisite to voting, or standard, practiee, or procedure with
respeet to voting difrerent from that in foree or effeet on
November l, 1964, sueh State or subdivision r)al' institute an
aetion in the United States Distriet Court for the Distriet of
Columbia for a deelaratory judgment that sueh qualifieation,
prerequisite, standard, praetiee. or rlroeedure does not have
the purpose and will not have the effeet of denying or ahridg-
ing the right to vote on aeeolrnt of raee or color. or in eontra-
vention of the guarantees set forth in seetion 4(f)(2). and
unless and until the eourt enters sueh judgment no person
shall be denied the right to vote for failure to eonrpl;y with
sueh qrralifieation. rrrerequisite. standartl. praetiee. or proee'
dure: Provided, That sueh qualifieation, prerequisite, stanrlard,
praetice, or proeednre has been sulrmitted bv the ehief lesal
offieer or other aprrropriate offieial of sueh State or srtbdivision
to the Attorney General antl the Attorney General has not
interposed an objection within sixty da.rs after such submis-
sion. .. 42 II.S.C. $ 1973e.

2 In 1968, as part of a general revision of the State Constitrttion,
a provision prohibiting the division of any coutttp' bt'trveen Stnte

Iesislative distriets was adoptecl. Art. II. S\ 3(3),5(3) N.C. Const.

This Constitutional amendment merely codifietl a praetiee rrhieh ha<l

been eonsistent and unbroken in North Carolina rerlistri<'tirlg sinee

the institution of legislative distriets in the colonial perorl.



4

During the early months of 1982, eoury.et.-fg1 
-the

Generalissembly worked closely with the Civil Rights

DivisionoftheDepartmentofJrrsticeinord,erto
remedy those aspecti of the plans found olljectionable

under Section 5. In February, the General Assemhly

enacted new redistricting plans in which some eottnty

Iines were broken in order to overeome the Attorney

c.ourot,, objection in the covered connties of the

state. 'when thure plans were submitted, the Attorney

General found .one problematic district in each plan'

These subsequently were redrawn to Justice Depart-

*.rt .p..ifications. On April 30, 1982, the Senate and

Ilouse plans received Section 5 preelearanee'

The Plaintilfs'Claim

The action below remained pending during the

eourse of these legislative proeeedings, and 
-several

amendments to the complaint were permitted to ac-

commodate the successive revisions of the redistricting
plans. The last supplemental complaint ineluded, as a

to.i, of the plainfiils, elaim of vote dilution, Section

i of the Yoting Rights Act, as amended on 'fune 29'

1982. fn its nnat toim, the complaint alleged that in 6

General Assembly distriets, the use of multi-member

.n"ngr,"otions diluted the voting strength of bla_ek eiti-

zens 
"in 

violation of Amended. section 2. In aclrlition,

irr.-prri"tiffs alleged that a coneentration of blael<

ootu"rwassplitbetween2single-memberSenatedis-
tricts resulting in vote dilution. The class was certifiecl

astheelassofallblaekresidentsoftheState,'and
s Although the plaintifrs \trere certified as the class of all blaek

voters in the state, their position was hardly one based on con-

sensus.FourprominentblackleaderstestifiedfortheStatethat

5

trial to a three-judge court was held for 8. days com-
mencing July 25, 1983.

The plaintifrs attempted to prove that five multi-
member House distriets and 1 multi-member Senate
district violated. Section 2. These districts were:

Ilouse District No. 23-Durham County
Ilouse District No. 3&-Mecklenburg County
Senate District No. 22-IWecklenburg and

Cabarrus Counties
House District No. 39-Forsyth County
House District No. 2l-'Wake County
Elouse District No.S-Nash, Wilson, and.

Edgecombe Counties

blacks in the atJarge distriets had equal access to the proeess and
three of them specifieally stated that single-member legislative
districts would hinder rather than help blacks politically. It be-

eame clear during the trial that mueh of the intpetus for the

ehallenge to the multi-member districting eame from plaintiffs'
counsel. Neither the Chairman of the House nor the Senate Re-

apportionment Committee had ever been contacted by the plain-
tiffs during the legislative process regarding the desire for single'
member districts. R. 1065-66, 1975.

The extent of the artifice constructed by the plaintiffs is dem-

onstrated by the following vignette. Trvo days before trial, the

I\fecklenburg Blaek Caucus passed a resolutiorl supporting single'

member districts. R. 7477-78. The resolution \\'as hltndrvritten by

a partner in the ffrm representing the plaintiffs and delivr-'retl by

him to the Caucus Chairman during the Caucus meeting. R. 1489.

The issue was not on the agenda for the meeting antl the tnemhers

had no notice of the vote. R. 1484. The plailrtiffs then calied the

Chairman of the Caucus as a witness at trial to introduce the

resolution to support their contention that the black community
was in agreement on the issue of single-member districts.



6

The plaintiffs also tried. to show that senate district

i, o .i"gte-member district was statutorily infirm be-

cause tlie d.istrict could. have been d.rawn to create a

igi AU"U majority. As drawn by the legislature and

approved by the Attorney General, the district's popu-

lation was 55.7/e black.'

Political Participation and Electoral Success

of Blacks in the Challenged Districts

The record. reflects the follorving facts:

Duiham County comprised' a 3-member llouse dis-

trict which had' a black voting age populatiol of

ig.sn Stip. 59.' Durham has had at least one black

representat]ive to the Ilouse continuously since 1973.

Stip. 1a8. At the time of trial two of its five cortnty

commissioners, one of rvhom is Chairman' were black

(Stip.150),aSweretwoofitsfourelected'tlistrict
.o""i judges.' Stip. 153. The three-member Durham

b"""ti Board of hlections had a 'black member from

19?0 rintil 1981, rvhen he was appointed to the State

Board of Elections. Stip' f54' The chairmanship of

tbe Durham County Democratic Party was- held.by a

black from 1969 tlirough 19?9 and is helcl by a black

for the 1983-85 term. Stip' 155' One single-member

G-o"u"" to draw a black majority senate distriet in the North-

east portion of the State, as the U'S' Attorney General hacl in-

struetetl, it was neeessarf to tlivide man)' counties' The resulting

Senate District 2 contains portions of Bertie' Chowan' Gates'. IIali-

ir*, No.ti,umpton, Flertfoid, I\Iartin and Washington Counties'

, The stipulations of fact are contained in the Pre-trial order'

citations aie to the number assigned to the Stipulation.

6 The faets here recited are from the record and so naturally re-

fleet the electoral situation in 1983 at the time of trial'

7

Ilouse district with a black population of approxi-
mately 70/s corld be drawn within Durham County.
Stip. 144.

fn addition, the evidence shorvs that the Durham
Committee on the Affairs of Black People is a power-
ful political organization which endorses and supports
both black and. white candidates for election. No can-
didate in Durham can expect to get many blaek votes
without the endorsement of the Durham Qommittee.
R. 1295.

The black voting age population of Mecklenburg is
24%.Stip. 59. One of the eight House members eleeted
from Meeklenburg County in 1982 is black. Stip. 116.

James D. Richardson, who is also black and was mn-
ning in his first election for public offiee in 1982. eame
in ninth in a race for eight seats, with only 250 votes
Iess than the eighth suecessful canclidate. Stip. 116.

This was in a field of 18 candidates. Pl.Ex. 1+(d),
R. 86, 112.' While there is currently no blacli senntor
from the l\'Iecklenburg-Cabarrus Countl' Senate Dis-
trict, James Polk, a first time cantlidatc for public
office, ran fifth in a race for forrr seats in the 1982

election. Stip. 118. The }lecklenburg-Cabarnrs County
Senate District did have a black senator for three
terms from 1975 through 1980, until his death before
the 1980 elections. Stip. 117. fn adtlition, it u'as stipu-
Iated at the time of trial that one of the five }Ieek-
lenburg County Commissioners, Stip. 119, trvo of the
nine Charlotte-Ilteeklenburg Board of Etlrreation mem-
bers, Stip. 123. and one of the ten }Ieel<lenburg Corrntl'
District Court judges, Stip. 122, all of whom are blaek,

TPlantiffs' Exhibits rvill be identified as PI.Ex.; Defentlants'
Exhibits as Def,Ex.



8

were elected at-large. fn addition, another black was
appointed to a vacant district court judgeship in }Iecli-
lenburg County. Stip. 123.

At the time of trial a black served as the chair-
person of the three member l\[ecklenburg County
Board of Elections. Stip. 125. The Mecklenburg Board
of Elections also had one black member in the years
1970 to 1974 and 1977 to the present. Stip. 125. The
chair of the lVlecklenburg County Democratic Exeeu-
tive committee at the time of trial and his immediate
predecessor are also black. Stip. 126.

The City of Charlotte, located in }lecklenburg
County, has a population which is 3l/6 black. Stip.
127. Elarvey Gantt, who is black, eurrently serves as

tr{ayor of that city. J.S. 35a. Charlotte also has trvo
black city couneil members elected from majority
black districts. Stip. 128.

It was stipulated at the time of trial that if tr[ec]<-

lenburg County were subdivided, trvo single-memlter
House districts each with a black population of. 65/s
could be constructed. Stip. 110. If the lVlecklenburg-
Cabarrus Senate district were dismantled, one single
member Senate district with a black population of
65/e eould be drawn. Stip. 112.

The five-member Efouse District 39, including most
of tr'orsyth County, has a 22/6 black voting age poptl-
lation. Stip. 54. Trvo black representatives rvere elected
in the 1982 elections. Stip. 132. tr'orsyth County has
previously elected a black representative for the 1975-

76 and 7977-78 General Assemblies. Stip. 133. Blaclis
have also been appointed by the Governor on trvo
oceasions to reprcsent Forsyth Couuty in the North
Carolina Hottse. This oecumed in 1977 rvhen a black
representative resigned, Stip. 13-1, and again in 1979

9

when a white representative resigned. Stip. 1gb. At
the time of trial one of the five Forsyth County Corr-
missione-rs, Stip. 136, and one of ilre eight Forsl,th
lou:rty School Board members rvere blacii. Stip. isO.
Both the county commission and the Schoor'Board
are elected at-large. rn aclclition, when ilre case *,ent
to trial the three-member Forsyth county Board of
Elections had one black member, and thai Boarcl has
had one black member every yeari sinee lg73. Stip. 1{1.

The City of 'W'inston-Salem, 
located in Forsvth

county, has a blaek popuration of srighily mor,r flran
40% and a black voter registration og ."liShil.y less
than32/6. Stip. 142. The'W'inston-Salem City Councit
has eight members elected from rvards. Stip. 1{J. At
the time of trial, there rvere three black menrrrers
elected. from majority black rvarcls ancl one black
member elected from a ward with srighily less than
39% blaek voter registration. Stip. 1+3. This blaek
couneilman, Larry 'Womble, 

clefeaied a rvhite Demo_
cratic incumbent in the primary a.d a rvhite Reprrbli-
ean in the general election in 19g1. Stip. l4:].

- If Torsyth County were divided into single mem_
ber House districts, one district rvith a poprrration over
65/o blaek eould be formed. Stip. 129.

The current'Wake County six member lfouse dele-
gation ineludes one black membcr. Ihn Blrre, wh., at
!!9 time of trial, was serving his seeonrl term. Stip.
162. In the 1982 election, Blrre reeeivecl the hichcst
vote total of the 15 Democrats nrnninq in the pt.irnan,,
Stip 162, and the seeond highest vote totnl nf ft. tZ
candidates running for the six seats in the general
eleetion. Stip. 162. Slighfly more ilran 20fi, nf W'al,e
County's voting age population is black. Stip. 59.



10

Although no single-member black Senate district can
be constructed in Wake County, Stip. 160, 'Wake

elected a black Senator for the 1975-76 and 19?7-78
terms. Stip. 163.

In July of 1983, one of the seven 'Wake County
Commissioners was black, Stip. 164, as rvere trvo of
the eight 'W'ake County District Court Judges. Stip.
165. The Sheriff of 'Wake County, John Baker, is black
and at the time of trial was s'erving his second term.
Stip. 166. In the 1982 election for his second term,
Baker received 63.5% of the votes in the general elec-
tion over a white opponent. Stip. 166. fn.the Demo-
cratic Primary, Baker received. over 63/o of the vote,
defeating two rvhite opponents. Stip. 166. Walie Conn-
ty Commissioners, District Court Judges, and the
Sheriff are all elected at large. Stip. 165, 166. \Yake
County has also had a black member eontinuously on
its three-member Board of Elections sinee 1970, Stip.
169, and at the time of trial had a black chairman.
Stip. 169.

The City of Raleigh in 'Wake County is 27.4%
black. Stip. l7L. Raleigh had a black mayor from
1973 to 1975, Stip. 172, and has had one black on
its seven-member city council since.1973. Stip. 173.

Although it is not possible to draw a black majority
single-member Senate distriet whieh is rvholly within
or includes substantial parts of Wake County, Stip.
161, John'W. Winters, who is black, was elected Sen-
ator from Wake County for two terms, 1975 through
1978. Stip. 163.

If 'W'ake County were subd.ivided into single-member
Ilouse districts, one district lvith a population around
65/s black could be created. Stip. 158.

11

rrouse District 8 is comprised of flrree whore eoun-
ties: ]''Iash, 'wilson and Edgeeombe, all of rvhich are
covered by Section b of the Voting Rights Act. Stip.
174. The Attorney General app"ou.,l this four-member
at-large district. Stip. 4b. Edgecombe County, which
1T , voting age population rvhich is 16.7/o' black,
stip. 59, has a five-member Board. of commissioners
elected at-large and rvhen the case went to trial, trvo
of its members rvere black. Stip. 176.

Senate district 2, a single-member district, is 5b.l/6
black. stip. 190. This district rvhicrr lies in an area
covered by Section 5, Stip. 1g0, rvas drarm according
to Justiee Department instructions to create a dis-
trict having a population that was bi% black, regard-
less of how many county rines had to be'crJssed.
Stip. 190. Consequently, Senate distriet 2, as it rvas
approved by the Attorney General. Stip. 4b, eneom-
passes parts of Bertie, Chos.an, Halifax, I{ertforrl,
I\'Iartin, Northhampton and washington counties. rn
the 2 electiou years before trial, blact eandidates hacl
'won 3 seats in the shrte rrorse from areas wiilrin the
borders of senate district 2. rn Gates county rvhere
497o-of- the registered voters are brack, a rrraek is e.r-
:uot]I serving a term as Clerk of Court. Stip. 199.rn rralifax, several blacks have rreen electerr to ilre
county commission a,d ilre city council of Ro,norie
Rapids. rt is possible to drarv a trtack district i. ilre
general area of senate district 2 rvhich is 5g.-tff black.
Stip. 188.

The plaintiffs' o*.n rvitnesses rvere eo,rineing eri-
dence.of the openness of ilre poritie*r proeess in lortrr
carolina. Their rvitnesses inel,deil pli.vllis [,1',ch, the
chairperson of the l\Iecklenbur.g Board of Erectio.s
and a force in the County Black Caucus. R. 427. Sanr



12

Reid, as the head of the Vote Task F oree in l\[ecklen-
burg County, is a special Registration Commissioner
appointed by the Mecklenburg County Board of Elec-
tions to respond to special requests to register eitizens
at eivic, community and chureh gatherings. R. 470.
Frank Ballance, the representative to the General As-
sembly from Elouse District 7, is also Chairman of
the Second Congressional District Black Caueus. R.
592. Larry Little is an alderman in the City of'Winston-Salem. Ife is also Chairman of the City's
Public Works Commission. R. 592. 'Willie Lovett,
Chairman of the Durham Committee on the Affairs
of Black People, R,. 646, testified that the "impact
and responsiveness in the community to the Durham
Committee and its recommendations and programs is
rather massive." R.670. G. K. Butterfield, an attorney,
organized the Wilson Committee on the Affairs of
Blacl< People and is also a gubernatorial appointee
to the State fnmates Grievance Board. R. 695, 719,
936. Fred Belfield is President of the Nash County
N.A.A.C.P. R. 737, 754. All of these plaintiffs' rvit-
nesses are black.

Yoter Registration

fn October of 1982, the State Board of Eleetions
reported the follorving voter registration statistics for
the challenged counties: Stip. 58.

/, White VAP* /6 Black VAP
Registereil, Registereil

Durham 66.0
Forsyth 69.+
I\fecklenburg ?3.0

'Voting Age Population

13

lo White VAP* /" Rtack VAP
Registered, Registered,

'Wake

Nash
'Wilson

Edgecombe .

Bertie
Chowan
Gates
Halifax
Hartford
Martin
Northhampton
'Washington

r Voting Age Population

72.2
61.2
64.2
62.7
76.6
74.1
83.6
67.3
68.7
7r.2
82.1
75.6

19.7
43.0
48.0
53.1
60.0
5r.0
82.3
55.3
58.3
53.3
73.9
67.+

52.9
6+.1
50.8

Although black registration still lags behind white
registration, the larger gains oou" Ih. past sereral
years have been among the blaek population. Def.Ex.
14,.R. 505, 510. rn the periocr rgg0 to 1gg2, statewirre
registration among whites dropped b,v ff2.OOO,'rrnifu
among blacks it increased by fipS6_as much as i0%in some counties. R. 5gb. fni.' increase rvas largelydue to an effort launched by the State Boarti ofElections in 1g80 to increase voter registration in
general, and in particular among groups tratlitionally
underregistered. since the publication'ot flrese .;;i,
!r.at]9n figures, the General Assembly has pnrroa fs_islation to further facilitate voter regis[ration. R.
133?. N9* publie Iibraries offer voter registration
during 

_li.brary hours. R. 1935-36. rn arlclitiorr, ,nnn,upublic high schools now have a permilncnt roting
registrar. R. 1385-3-6. lhe legislation fur.ilrer pro'itles
that branches of the Deparlment of ][otor Vehicres



14

offer voter registration so that the opportunity to
register is available to everyone who comes in to
renew or replace a driver's license or to conduct any
other business. R. 1336.

Despite the great strides made by the State in elimi-
nating any lingering effects of past electoral discrimi-
nation by facilitating and encouraging registration,
and. despite the considerable electoral sttccess achieved
by blacks in North Carolina, the district court founcl
that the challenged districts violated Section 2. The
court reached. this untenable conclusion because it
never uncovered. the core value, the speeific right,
protected by the statute. Seetion 2 guarantees equal
opportunity to participate in the political process.

The court belorv, horvever, struck down the challenged
clistricts because they ditl not guarantee electoral
suecess.6

SU]TIi}IARY OF THE ARGUI}IENT

Section 2 of the Voting Rights Act as amended
by Congress in 1982 guarantees equal aceess to the
political proeess. The focus of the provision is oppor-
tunity, not guaranteed results. Congress incorporated
the analysis and specific language of White t. Reg-

e.ster,412 U.S. 755 (1973) into the amenclcrl statrrte.
Thus a violation of Section 2 is established rvhen

plaintiffs demonstrate that the politieal processes lead-

15

ing to nomination and eleetion are not equally open
to participation by the racial minority group.

The reeord below shows that blaeks iu North Caro-
Iina enjoy active and meaningful participation in
politics. This is evidenced by the fact that out of
11 black candidates who ran for election to the Gen-
eral Assembly in 1982, from the districts challengerl
by the plaintiffs, 7 were elected.

The district court erred irr equating aceess with
guaranteed electoral suceess. This runs counter to the
legislative history of Section 2, and the judicial prece-
dents whieh Congress explicitly invoked.

The distriet court found that racial bloc voting
exists whenever less than 50 percent of the rvhitej
vote for a black eandidate. This is an arbitrar.v clefini-
tion which has no relationship to real politics or
electoral outcomes. By virtue of this definition ilrc
court found "severe" racial polarization in eleetions
in which the black candidate received 40la of ilre
white vote anil won the election. Racial ltloc r-otirrg
has legal signifieance only rvhen it opcrttcs to pr,c-
vent black candidates from being elected to office.

Introduction 
ARGUIIIENT

On June 29, 1982 Congress erraeted amendments
to the Voting Rights Act of 1g65. Forernost anrong
the changes adopted rvas a complete turrrsfix.rnation
of Section 2. Prior to this 1982 amendnrent, Sier:tion
2 had been vierved as simpl,v the statrrtory restate-
ment of the Fifteenth Anrcndrnent. City of J[obilo
v. Bolden,, 446 U.S. 55 (1981). Consistent rviilr this
Cottrt's rulings in such etses a.s Wushittgton v. Duuis,

8 Apparently the court adopted this conelusion of the plaintiffs'
expert, Bernard Grofmann:

IIy fifth general conclusion is as follorvs: Even though.a eon-

stituency"has eleeted a black candidate in.the- pa.st, this does

not provide a guarantee that it will do so in the future, espe-

ciatty if the biack incumbent who is the prcsent occupant of
that position does not run in the future in subscquent races'



16

426 U.S. 229 (1976) and. Arli,ngton Heights v. Tletro-
politan, Hou,sing DeueloTtment Corp., 429 U.S. 252
(1977), it was necessary to prove both disparate im-
pact and discriminatory intent in order to establish
a violation of the X'ifteenth Amendment and eonse-
quently, of Section 2. This was the holding of the
plurality of the Court in City of Mobile, su,pro,.

Congress amended Section 2 to eliminate the intent
standard imposed by trIobile. Sec.tion 2(a) as amended
provides that no voting Iaw shall be imposed or ap.
plied in a manner which results in a denial or abridge-
ment of the right to vote on account of color. Sub-
section (b) in its entirety reads:

(b) A violation of subsection (a) is established if,
based on the totality of circumstanees, it is
shorvn that the political processes leading to
nomination or election in the state or political
subdivisioll are not equally open to participa-
tion b1' members of a class of citizens pro-
tected by subsection (a) in that its members
have less opportunity than other members of
the electorate to participate in the political
process and to elect representatives of their
choiee. The extent to rvhieh members of a pro-
tected class have been elected to office in the
state or political srrbdivision is otte t'eireum-
stance" lvhich may lle considcred, providecl that
nothing in this seetion establishes a right to
have mernbers of a protected class elected in
nrrmbers equal to their proportion in the poptl-
lation. 42 U.S.C. $ 1973.

The language of Section 2 is clear-the statutc is
intended to afford to minority citizens the opportunity
to meaningfully participate in the political process.

It explicitly disavows any guarantee of electoral suc-

cess or proportional rcpresentation.

L7

- 
The legislative history supports a reading of See-

tion 2 which focuses on equal aecess. On October 15,
1981, the House of Representatives passed I-I.R. g11Z
which transformed seetio, 2 into a results test. The
House version read as follows:

No voting qualifieation or prere-quisite to voting,
or standard, practiee, or proeedirre shall be iru_
qgs.eq or. applied by an.v State or politieal sub-
division in a manner rvhich resrrrts iir a cle,iar or
3lrjdg_eryent of the riglrt of an1, citizen of the
United States to vote Jn accourrt'of race n, .oio.or in contraventiou of the gnarantees set forflrin Section 4(f)(2). The faci'that nrernbers of a
minority group have not been elected irr numbers
e-qual to the group's proportion of ilre pormlation
shall -not, in and- of itseif, constitute i 

"iolntio,of this section.

The Senate Judiciary Subcommittee on the Consti-
tution rejected the proposed amendment and reeom-
mended the retention of the existing statutory lan-
guage. Report of the Subcommittee on the Constitution
of the Senate Committee on the Judiciary, g7th Cong.,
2d Sess., Report on S. lgg2. AJthough marly member.s
of the Senate Judiciary Committee supportetl the
House language, there rvere not enough votes to re-
port the House version to the floor. 128 Cong. Rcc. S.
6920 (daily ed. June 17, 1982) (statement of Sen.
Hatch). Senator Dole avoidecl a stalematc bv con-
stnrcting a compromise that allorved a majoritv of the
Judiciary Committee to agree upon a bill. 128 Cong.
Rec. S. 696{ (daily ed. June 17, 1982) (statement of
Sen. Kennedy).

The Dole compromise, the bill ultimately adopted
by Congress, incorporates language from the land-



18

mark vote dilution ease, Wh,ite v. Regester, 4L2 U.S.
755 (7973). In lYlti,te the Court wrote:

The plaintiff's burrlen is to produce evidettce to
support finclings that the political proeesses loq$-
ing 

-to nomination and election rvere ltot equall-v
open to participation by the group in qrtestion-
t6at its nrembels had Iess opportunity than did
other resid.ents in the districi to paiticipate in
the political proeesses antl to elect legislators of
their ehoice. 412 U.S. at 766.

Senator Dole made it clear that, just as in White v-

Regester, the touchstone of the nerv Section 2 would
be equal aceess and opportunity. S. Rep. No. 417, 97th
Cong., 2d Sess. at 193. [hereinafter S. Rep.] On t]re
floor of the Senate, in answer to Senator Thurmond's
question as to whether the focus of the amended stat-
ute rvould be on election results or eqttal access to the
process, Senator Dole responded, " [t]he focus of Sec-

tion 2 is on eqrtal access, as it should be." 128 Cong.

Rec. S. 6962 (claily ed. June 17, 1982) (statemcnt of
Sen. Dole). He also explained in his viervs included

in the Senate Report that, "[c]itizens of all raees are

entitled. to have an eqttal chance of electing candidates

of their choice, but if they are fairly afforcled that
opportunity and. lose, the law shorild offer no rem-

edies. " S. Rep. at 193.

The Senate Report echoes the view of Senator Dole

that the amerrdment rvas intended' to codif,v the equal

access standard of lYh,itev. Regester, S. Rep' at22-24'
Indeed. the Senate Report explicitly states that the

substitute amenclment ,,codifies the holding in whitc,
thus making clear the legislative intent to incorporate

that precedent and the extensive case law lvhich de-

oeloped around it into the application of Section 2'"
S. Rep. at 32.

19

The district court erred in failing to apply Section
2 in a manner eonsistent with the j'dicial-preeedents
expressly identifieil by congress. Alilrorrgh ilre eourt
ack_nowledged Congress'reliance on White v. Regester,
it did not seriously attempt to integrate the langrrage
of Seetion 2 with the case law which Congress sousht
to cod.ify. fnasmuch as the language of subsection (b)
came directly from this Court,s opinion in Whi,te, it
is obvious that the statute must be eonstrued in light
of this precedent. Because the distriet court attempied
to interpret the amended provision without this es.sen-
tial judicial background, it reaehed several erroneous
eonelusions of law. The court,s fundamental miscon-'l
ception was that Section 2 creates an affirmative en- I
tilement to proportional representation. Builclinc on Jthis foundation, the court rvas able to make a finclins
of vote dilution even though it u'as evident that black
residents of the challenged districts had the same op-
portunity as rvhites to participate in the politieal
process and to elect candidates of their choice.

I. seetion 2 of the voting Rights Act rloes not entitte protecterl
minorities, in a jurisrliction in which minorities activcly
participate in the politieal process anrl in which nrinoriry
candidates win elections, to safe electoral rlistricts sinrply
beeause a minority concenlralion exisls sullicient to create
such a district.

The district court erred in equating a violation of
Section 2 with the absence of grrar:rntecd pr.oportional
representation. The Court flatly stuted:

The essence of racial vote tlilrrtion irr the Tl'ltite
v.-Reges.ter sense is this: thnt plim:rr,ilv hcr::rusc
of the interaction of sullstantial and porsistorrt
racial polarization in votirrg pntterrrs rviih a chnl-



20

lenged. electoral mechanism, a racial minority -rvith
dist-inctive group interests that are capable of aid
or amclioration- by govern:ment is effectively de-
nied the political power to further those interests
that numbers alone rvould presttmptively give it
in a voting constituency not racially polarized .in
its voting behavior. (citation omitted). J.S. at 14a.

This statement epitomizes the district court's reading
of the amended statute. Although blacl<s had achieved'

considerable success in winning state legislative seats

in the challenged distriets, their failure to consistently
attain the number of seats that num'bers alone wotcld,

prew,mptiuely giue th,em, (i.e., in proportion to their
presence in the population) the court found that Sec-

tion 2 had been violated. All of the vote dilution cases

following Wttite run counter to this interpretation.
In Dauid, v. Ga.rcison, for example, the Fifth Circuii
rvrote that "dilrttion occurs when the minority voters
have no real opportunity to participate in the political
proeess." 553 X'.2d 923, 927 (5th Cir. 1977). And in
Doue v. trIoore, the Eighth Circuit in diseussing vote

dilution under the pre-Ifobile constitutional standard'
now codified in Section 2, stated that the "constittr-
tional touchstone is whether the system is open to full
minority participation not whether proportional rep-
resentation is in fact, achieved." 539 F.2d 1152. 1154

(8th Cir. 1976).

Jlforeover, the court's understand'ing of Yote di]ution
runs contrary to specific instruction in the legislative
history. The Senate Report explained that some op-

porutl. of the results test had suggested that it would

enabte a plaintiff to rvin a vote dilution suit by shorv-

ing an ol-lorgu election scheme, underrepresentation
oiminorities, and a mere scintilla of otSer evidence.

2L

This is essentially the same standarrl enuneiaterl by
the district eourt, and the Senate Report states ilrat
"this position is simply rvrong.,' S. Rep. at :]:].

In addition, the court failed to understancl flre clis-
claimer at the end of subsection (b). The stat,te states
that "nothing in this seetion establishes a right to
have members of a protected elass eleeted in nrrm-
bers equat to their pr.oportion in the populatiorr.,, 42
U.S.C. $ 1973. The district corrrt interpreterl ilris to
mean only that lack of proportional representation in
and of itself does not constitute a violation of Scetion
2. J.S. at lla, n.13. Onee again, the Senate Report
specifically disavorvs the interpretation adopted b;, ilre
eourt. The Report states that the Horrse version sim-
ply assured that a failure to achieve proportionnl
representation in and of itself rvoulcl not eonstitute a
violation. S. Rep. at n.225. The Senate strengilrened
the House language to make it explicit ilrat the
amended section creates no affirmative right to pro-
portional representation. S. Rep. at 68.

Subsection (b) of the amended statrrte states flrat
a finding of discriminatory results should be based on
the totality of circumstanr:es. The Senttc Repor.t elall-
orates on this by suppl;'ing a li.st of faetors rvhir:h the
Committee suggested might lle indir:ertive of r.otc tlilrr-
tion. S. Rep. at 28.' These factors rvcre eulled from

e The Senate Report criteria are as follorvs:

1. the extent of any history o[ official .disurirnination in the
state or political subrlivision that torrrlrurl thc right of the
members of the minority group to registur, to vote, or otlrt,r-
rvise to participate in the tlcnrocratic llrot.r'ss;
2. the extent to which voting in the electiorrs of thc state or

. political subdivision is racially polarized;
footnote corrtinued ou nert pilge

)

"a"$. Jt'\,



22

the analytical framework in White ancl also flom
Zimnter t. llclieithen, 485 E.2d 1297 (5th Cir' 1974),

a Fifth Circuit case which followed and applied

White.

The proper application of the analysis suggested

by the 
-Senate 

Report, and the purpose offi-ection 2

glnerally, are besl examined in light of Wh'ite and

btty o1 trIobile v. Bolilen, 4,16 U.S- 55 (1981)' The

facls of. trIobite, the case to which Congress adversely

reacted, and. those of Wltite, which set the standard

that Congress wished to codify, provicle the bacl<-

ground. o....to"y to apply the amended statute' Com-

3. the e.rtent to rvhich the state or politieal subdivision has

,.J ""ot"ully 
large election distrieti, majority vote require-

,*.,t., a,ti-single sirot provisions, or othcr voting p-ractices or

fio..,i*.. thal may erhonce the opportunity for discrirnina-

iion against the minoritY group.

4. if there is a cancliclate slating proeess, \vhether the memlters

of the minority group have been denied access to that process;

5. the extent to rvhich members of the minority group-in the

.iri. "" 
p"tiiical subclivision bear the effccts of tliserimi,atio,,

in such areas as education, employment and health, rvhich

i;i"a;; their abitiry to participaie effectively in the political
process;
6. u'hether political campaigns have been eharaeterized by
overt or subtle racial aPPeals;'

?. the extent to which mernbers of the minority group have

been elected to public office in the jurisdiction'

Additional faetors that in solne cases have hatl probative value

aspartofplaintiffs'evidencetoestablishaviolationare:
whether there is a signifieant lack of responsiveness. on thc

;; ;f electe6 officials"to the partieularized ,eeds of the mem-

bt'rs of the minoritY group.
whether the policy undcrlying-the.state or political subtlfui-

.ion;. ,te of 
'such voting quaiification, prerequisite to vntilrg'

or standard, practice or procedure is teuuous'

23

parisons of the record. in this case with the findings
of the district courts in Wltite and trIobile make it
clear that Section 2 u,as never intendetl to reach the
circumstanees of the case at bar.

Tn White v. Reyyester the Court upheld the district
court's order to dismantle multimemller distriets in
Dallas and Bexar Counties in Texas. While the White
Court recognized that multimember districts micht be

nsed invidiously to minimize the electoral strength of
racial minorities, it also stressed that to sustain sueh a
claim "it is not enough that the racial gronp allegedly
discriminated against has not had legislatire seats in
proportion to its voting potential." 412 U.S. at 766.

The record in White however, shorved that the
counties in whieh the Plaintiffs challenged the at-
large system had the following eharacteristies: 1) a
history of official racial diserimination, whieh con-
tinued to toueh the right of blaelis to register, rote
and to participate; 2) a majoritv vote requit'cmetrt
in party primaries; 3) a place nrle rvhielt retlrteed
multimember elections to a head-to-head eontest for
each position; 4) only 2 blacl<s elected to the Texas
legislature since Reconstruction: 5) a slating s,vstem
rvhich excluded minorities; 6) a rvhite clominntcrl or-
ganization rvhich controllcd the f)emoeratie prtrt.v arrrl

whieh dicl not need or solicit bl:rel< srrpport; 7) a r:ott-

sistent llse of racial campaign appe:tls hv the f)ettto-
eratic party. The distriet collrt concluticd lntl the
Supreme Court agreed that the net resrtlt of these
factors rvas to shut racial minorities out of the elet:-

toral process.

Likervise in trIobile, the plaintiffs attacl;etl thc at-
large method of electing the city comrrtissiottet's, 43S



24

F.Srrpp. 384 (S.D. Ala. t977). The district court,
applying the test used in Zi,mmer v. llcKeithen, 485

f'.ia rzsz (5th Cir. 19?3), found that the electoral
system there was marked by a majority vote require-
ment in both the primary and general elections, num-

bered. posts, and no residency requirement. fn addi-

tion, in a city rvhose population rvas 35.4/e black, no

black person had ever been elected to the Board of
Commissioners beeanse of acute racial polarization in
voting. The Court found further that the city officials

had. made no effort to bring blacks into the main-
stream of the social and cultural life by appointing
them to city boards and committees in anything more

than token numbers. The plaintiffs also marshalled
evidence of police brutality torvarcls blacks, mock

lyrrchings and failure of elected officials to take ac-

tion in matters of vital concern to black people. On

appeal to the Fifth Circuit, the Court noted that
the plaintiffs had prevailed on each ancl every Zimmer
factor, 571 F.2d 238, 244 (5th Cir' 1978).

The record in the present case differs dramatically
from ilre pictures drarvn in wlr,ite and llobile. Ilulti-
member districts in North Carolina simply do not
operate to exclude blacks from the politieal process

o. th"y did in those cases. The degree of suecess at
the polls enjol'ed by black North Carolinians is suf-
ficient in itself to distinguish this case from Wlt)te
and, Tlobile and. to .entirely discredit the plaintiffs'
theory that the present legislative districts deny blaclis

equal aceess to thc political process.

The court belorv reviewed the evidence by discuss-

ing essentially the same factors considered in Wlr'ite

oia UoUile. Contrary to the court's conclusion, horv-

A. History of official discrimination which touched the
right to vote.

The plaintiffs introduced evidence, not refutecl by
the State, that North Carolina had in the past pre-
vented blacks from actively participating in the clemo-
cratic process. Stips. 85-94; R. 22{-32{. This evidenec,,
however, is relevant only if these past impediments
to political participation have a perceptible impact
on the ability of blacks to involve themselves effec-
tively in the democratic processes of North Carolina
today. See trIajor v. Treen,574 F.Supp. 325, 65 (E.D.
La. 1983).In Hendrin v. Joseyth,559 f'.2d 1265 (5th
Cir. 1977) the court warned that because no area in
the South rvas free of past discrirnination in voting,
the present effects of sr rrst lle
carefully assessed. "T
court rvrote, ttwhether

" the
eludes

effective participation in the electoral s1'stem L,o

blacks today in such a way that it can be remedicrl
by a change in the electoral system. " 559 F.2d at
1270. (emphasis added).

The record in this case shorvs that the drive to ett-
gage blacks in the electoral process in North Caro-
lina began before the passage of the Yoting Rights
Act in 1965. R. 1178-79, 1306-07. fn lleelilenlnrlq
and Wake Corrnties. for exampie, voter registi'atiott
drives aimed particularly at increasins lllacl< r'egis-
tration began before that date. Id. Over the plsi
years, the State Board of Elections has redoulllcd its

holv one weights aud rveighs the
presented, it does not add up to clerrial of eqr
to the political forum.

factual question i
discriminati



26

efforts to reach those groups in the State that are

relatively underregistered, especially blacks. Thn
Board of Election's most recent campaign included
a comprehensive educational program to eneourage

interest in voting, and nerv legislation designed to
maximize access to registration. Def.Ex. 1-9, 11-15,

R. 500-06, 510. At the close of the books prior to the

1982 General elections, the Board's drive had resulted
in a 17/s increase in registration among blaclis. Def'
Ex. 14, R. 506, 510. By the adjournment of the 1983

Session, the General Assembly had enacted nerv legis-

lation providing for more registrars, more registra-
ti on loeations a4rd-generally mt'r€r accEsrs'to registra-
tion. R. l$5.<ILspite of these facts, th. district
court still counted Wefendants
beeause the percentage of eligible blacks registerecl is

lorver than the percentage of eligible whites registered'

r\lthough total registration among bluclis is still
lower than among l'hites, blacks are registering at a
faster rate toda,v than are rvhites. It is obvious from
this statistic alone that no baruiers or impecliments to

registration presently exist. In adclition, the mere

fact that in the 7 challenged districts. 7 blacks were

elected to the General Assembly in 1982 demonstrates
that there are no lingering effects of past discrimi-
nation.'o

The Senate Report does not purport to cast in stone

the definitive inflexible list of relevant factors to bc

ro The successful blilck citntli<Iates rvere D:rtr Blue (Wrtke CouIr-

ty); Annie lienne<I1', C. R. Ilauser (Forsyth County); Pltil Bcrry
(Ilecklenburg County); Frunl< Ballance (\Y:trren Cotrnty); I(en-

neth Spaulding (Durharn County); C. tr[clvin Creecy (North'

hampton County).

27

considered in Section 2 cases. The factors are meant
to be exemplary of the types of evidence rvhieh might
be relevant, and the relevance of any given item may
vary from case to ease. Bollhins v. City of llatties-
burg, No. H77-0062(e) (S.D. Iliss. Ilarch T, 198+), at 8.
fn this instance, this first factor is not particrrlarly
relevant, largely because the State's effort to over-
come the effeets of past electoral diserimination have
been so successful. The mere existenee of irnpecliments
to the exercise of the franchise by minorities at some
time in the past should not "in the manner of original
sin" eontinue to be accounted aglinst the State loug
after the barriers have been removed and the resiclual
conseqllences ameliorated.

B. The extent to which voting is racially polarizerl.

Because courts have geuerall.l, considerecl this to be

the pivotal factor in Section 2 anall'sis, this topic is
discussed below in detail. Suffice it to say here thut
the eourt found "severe" racial polarization in el'er,y
election in rvhich less than a majoritl' of rvhites voted
for the black candidate-evell n'here the black rvon
and rvhite candidates also reeeived less than a ma-
jority of the rvhite vote.

C. The nrajority vote reqrrirenrent.

North Carolina has a majority vote reqrriroment in
primarv elections only. Stip. 88, 8f). Thc rlistrict cotrrt
found that no blaeli harl ever lost a llicl for elcctiott
to the General r\ssembly lleeanse otl thc nr:rjoritv rote
requirement." J.S. 30a. Nonethelcss, the court also

rr Because the one-party
inrportarrce of victory irr

nature of tlre state greittl-v irrllirtcs the
thc Derrrocrirtic prirntr,r', tlrt,re is little



2S

found that the majority vote reqtrirement contributed
to the dilution of the black vote. I'Iere again, the
Court mechanistieally counted one of the Senate Re-
port factors against the State without seriortsl.y con-
sidering the actual impact on electoral aecess. If no
black candidacy has ever been impeded by the ma-
jority vote requirement, it is absurd to consider the
requirement a circumstance contributing to vote dilu-
tiorr.

't

D. The socio-economic elTeets of discrimination and
political participation.

This eriterion from the Senate Report must be read
fully and in conjunction with its accompanying foot-
note 114. The Report states that a court ma.v examine
t'the extent to which members of the minoritv grollp
in the state or political subdivision bear the effects
of d,iscrinination in such areas as education, ernplo.r'-
ment and health, rulticlt ltinder their ability to par-
tieipate effectively in the politieal proeess." S. Rep.
at 29. (emphasis added). Thus, a plaintiff mar, prop-
erly introduce evidence, for example, of inferior
health eare, edueation, and income among blaeli citi-
zens. The relevance of this highlv prejudicial evi-
clenee, horvever, is contingent upon proof that thr: level
of participation by blacks in the political process is
depressed.

support for eliminating the majority vote requirement. In fact, a
bill introduccrl in the Gcnertl Assernbly in 1983 by Rcp. Spauld-
irrg, rvho is lrlack, rvoul<l lrave merely rerluced the rcqrtinrmettt to
40 pereent. Stip. 90. Interrstitrgly, a study supcrirrrposing Rt'p.
Spaultling's proposal on all legislativc elections bacli to 196-[ shorvs

that no additional blacks rvould have rvon as a result of this change.
R. 960-64.

29

Note 114 confrms this reading. There, Congress
expressed its intent that a plaintiff neecl not prove
a causal nexus between disparate socio-eeononric status
and depressed political aetivity. I-Iorvever, social arrcl
economic circumstances have no relevancy at all to
the issue of vote dilution if participation by the group
claiming dilution is not in fact depressed. Note 114
does not relieve the plaintiffs of proving depressed
political participation, it merely relieves them of prov-
ing the nexus betrveen the two circumstances.

The court seems to have interpreted this factor and
Note 114 to say that evidence of inferior economic
and social status is proof of depressed levels of par-
ticipation in the democratic process. The plaintiffs
did indeed offer evidence that blaeks farecl less well
than rvhites on several socio-econonric measur.es. Stip.
62-84. A rvitness offered as an expert in political
sociology then testified that the lorver olle's ecorrornir:

rvhole record reflects vigorous participation b_v blaelis
in every aspeet of political activity-. First of all, near,l.r,
every one of the plaintiffs' onn rvitnesses reciterl a
series of Democratic party offiees, elective offiees antl
appointed politicat positions in rvhieh thev hltl sen-ed.
See 11-12 supra. The activities of jrrst this snrall sroup
of people cast some.clorrllts orr ally t.llinr of' eithcr rle-
pressetl pnrticipation or rrnetlrral opportunit.r'. Wit-
nesses for the plaintiffs also testified tborrt srrcr:essful
volunteer efforts by black leaders rutl civir: gr.oups to

i-tical process. R. 402.

Nothing in the record, horvever, supports the fincl-
that participation blacks in the elcetorir



30

increase voter registration. R. 463-G4, 4?0. This too is
hardly reflective of a politically inactive black com-
munity. tr'urthermore, the power wielded by such
organizations as the Durham Committee on the Af-
fairs of Black People, R. 670, 1295, the l,Iecklenbnrg
Black Cancus, R. 453-55, the Raleigh-'Wake Citizens
Association, R. 1333, the Blaek'Women,s Politieal Cau-
eus, R. 1333, and the Wake Coun tic Blacl<
Cauetrs, R. 1333-34, eviderree {iital and sophisti
black organization. Since thdqllaintiffs failcd to prore
that political participation oi of l:lael<s i
North Carolina rvas depressed. or in any rva.t 

-Iffideied,

the evidence of disparate economic and social status
was not particularlv relevant to the issue of rvhether
the challenged legislative districts dilute black voting
strength and the court should have rejeeted this
evidenee.

E. Racial appeals in political campaisns.

The court found that from Reconstnrction to the
present racial appeals had been ,'effectively used by
persons, either candidates or their supporters, As a
mearls of influencing voters in North Carolina politi-
eal eampaigns." ,I.S.31a. The conrt apperently ac-
eepted the opinions of plaintiffs'expert, Parrl Luelllre,
on this topir:." Thc (.lourt lists 6 elections in rvhich
these appeals supposedly lvere made:

* r. Luebke's testimony d
l-ruebke insisted that carnpai slogitrrs suclr
serve all the people of Charlott
s'ere racial slurs. R. 3{5. trIost to his <:rcclibility, lrorv-

31

1950 Campaign for U.S. Senate
1954 Campaign for U.S. Senate
1960 Campaign for Govelnor
1968 Campaign for Presiclent
1972 Campaign for U.S. Senate
1984 Campaign for U.S. Senate

Of these 6 campaigns, 4 of them occurred more than
15 years ago. One more dates from more than 10
yearc ago. Only one of the so-called racial appeals
cited by the court occurred reeentl,v and it did not
occllr in the context of an election to the Gcneral
Assembly in an;, one of the challenged districts. Fur-
thermore, the court's findings rvere based on Dr.
Luebke's opinions unsupported by an.y s.vstematie
analysis or study. The same type of commentar.)' oll
racial appeals by a plaintiff's expert has been dis-
missed by a district court as "pure sophistry." Ot,(r-
ton v. City of ,lttstin, No. A-8{-O,\-1E9 (N.D. Tex.
l\lareh 12, 1985) at 26. The corrrt in Ore rtorr, forrrr<l
the methodologv totall.r' rranting lteenrrse the esper.t
had not interviewed a statisticalll- reliallle s:rnrple of
voters to cletermine if they perccir-ed any r.aeial in-
ferences in the campaign matcrials ltllelled "r'itciul
appeals" by tlte expert. Itl. at 27. Dr. Lrrchke's re-
search consisted of reatling the arls nnd tlctcrrnining

political comment in the mind of anothor. R. {17.

Dr. Luebke insistctl, for exarnplc', tlrat tlro rrhitt' cirntlirlates for
the Durhanr Count.v Boartl of Cornnrissiorrcrs rrrirrlc r:reill tppr,irls
throughout their carnptign irr 19S0. R. 3,-r0-:!.-rti. [,u.,bk,' I'orrr:rl thc
slogan, "Vote for Coutirrue<l ['rogrt'ss," to bc rir,.iirll]' olI,'nsivr..
R.353-5{. Nonctheless, trvo of the fivc st,ats in thut r,lcr.tiorr rvt,rt'
rvon by blacks and the 5 Corulnissiorrt,rs tlrr.n t.lr'ctcd orrc of tlrrr

blacks Chairman of the Courrty Iloartl. R. {JJ-9i.
ever, was his adamant refusal to
racial appeal in the mind of one

as simply not credi For esirrnple,

arlrnit that rvhat rrriglrt bc a
person eould neucr be a fair



,32
tvhether they contained coded or "teregraphed,, racial
messages. rre intervierved no one to substantiate his
conclusions. R. 418-lg.

F. The extent to which lllacks have been eteetetl.

Despite the consiclerabre erectoral suceess of bracks
in the challenged-districts, the co.rt fo,ncr that(,[t]he
overall results aehieved to date.at all lerels of ele-ctive
office are mi,imal in relation to the p...ortogl- ot
blacks in the population.,, J.S. at 3?a.,' This con_cl,sion is simply inapposite to the issne of wrreitrer
blacks enjoy equal politieal opportunity in the ehal-
lenged districts. rn the rgg2 eieetions, in the cli.stricts

-in 
question, 11 black eandidates offered for electiorr.

Nine lvon in the Democratic primaries and sevenwe,t on to *'in in ilre general erections. Thr.ee of thefour eandidates rvho lost were running for p,bric
office for the first time. The fo,rth rosirig cand^irlate,
Horvard clement, testified that he rost beca,se rre clicr
not ha'e the endo'sement of the D,rrram commitiee
on the Affairs of Black people, R. I2g5, and indeed,
he recei'ed o,ly a small percentage of the blaek vote.
The results of the 1g82 legisrative erections are harcily
consistent with a finding of "minimal,, electoral
success.

G. Responsiveness.

The plaintiffs offered no eviclenee of unresponsive-
ness but on cross-examination their wituesJes con_
ceded that their regisrators were responsive to their

13 From the court's recitati<ln of statistics at.I.s. BBa, it is clearthat this conclusion is baserl on the percentage of bl*cks electetl
stateutide, not in the challenged districts.

33

needs." R. 450-53. The d.efencrants sr-rorvetr anc ilre
court found that the effort to inerease braek rcgis-
tration was d-irecily responsive to ilre neecrs of 

"ilre

black- community. J.S. 2ba. fn addition, the court
specifically noted that the state has appointed a sig-
nifieant number of black citizens to jr,ageships and
to infl'ential executive positions in state government.
J.s. at 47a. Despite the prethora of evitrence offered
by the defendants, the conrt did not finrr that legis-
Iators 

.generally were responsi'e or. urlresponsivc. intl
they did not examine ilre effect of ilri.s factor on
,ote dilution. The fail.re to make such an assessnrent
reflects the conrt's .nderrying ass.mption that effec-tive representation of ilre minority eornm.nitv rle-
mands guaranteed election of miriority earrdi,:rafes.
Apparentl,rr, the court interpreted ,,of thni" ehoiee,,
to mean "of their rAce.,,B,t there is simplr.,o right,
constitutional or statutorv, to elect r.epreserrtatires of
one's onm raee. Seomotu v. LTplmnt, biuil No. p_g1_
19-9A (E.D. Tex. ,fan. 80, 19-g{) . See olso Ot,erton,
u.-City of Austin, No. A-g4-CA-tgg (W.D. Tex. tr[arch
12, 1985). Responsiveness is probative of the existence
of access to the politicar p"o.ur. bee.rrse a wJrite repr.e-
sentative rvho respo,ds to his blacli constit.e.c.v is j,st
as effective, vis a vis the black commrrnit-o ,,S a biaek
person.

rr In the legislative session immetliatery precerring trre trial, the
General Assembly greatly inereased the irvailability of v,t.r rt*is
tration' R. 1335. In addition, the hutlgt,t incr.rletl :rn .ilocatiorrfor sickle eell anemia research, a holida-v honoring Dr. lkrrtinLuther I(ing rvas establishetl, and local lcgislation changing the
method of election to the wake cou,ty' Sr:lrorr lJr:rrtr fr,rn . rris-trict to an at-large system rvas ptsscd at the urging of black
leaders from Wake County. R. lgAB_Bg.



34

fn its discussion of polarized voting in Rogers t.
Lodge,458 U.S. 613 (1982), the Supreme Court noted
that rvhen a racial majority can rvin all the seats in
an at-large election without the support of the mi-
nority, it is possible for those elected to ignore the
viervs and needs of the minority rvith impunity. 458
U.S. at 616. When this oceurs, the members of the
minority are essentially excluded from the clemocratic
process because they have no representative voiee.
It is this very potential to shut blaeks out of the
process rvithout fear of political eonsequences which
makes unresponsiveness of elected officials one of the
inclicia of a Section 2 violation. In the present ease
blaeks are not excluded from the process by rlnre-
sponsive white representatives. 'White 

candidates need
hlack support to rvin, and many black political organi-
zations regularly endorse white candidates. R. 45{-55,
46{-65, 638, 855, 123+-36. Consequentiy u,hite office-
holders are held accountable b,v the black eommunity.
Uuder these circumstances, the responsiveness of the
members of the General Assembl;' to the black citi-
zenry further evidences the effective participation of
blacks in the political processes of North Carolina.

H. Legitimate state policy behind county.basetl
represenlation.

The court found that the use of the whole-counties
as the building blocks of legislative districting rvas

"well-establishecl historically, had legitimate func-
tional prlrposes, and rvas in its origins cornpletely
rvithout rar:ial irnplications." J.S. at 50a. The court.
horvever, forrnd this evidence irrelevant on the grouncls
that the legislature could have contradicted estab-
lished policy to avoid dilution of the black vote.

35

The eourt's analysis completely contorts the prrr-
pose for the presence of this factor in the Senatc
Report. Evidence of a consisterrtly applied, long-
stand-ing non-racial policy rveighs against a finding
of vote dilution. As the Senate Report notes, a fincling
on behalf of the State on this factor rvould not alone
negate other strong indications of dilution. Nonethe-
less, the court's basic finding refutes any suggestion
that the use of whole counties as the basic rrnit of
distrieting was racially motivated.

removes black voters and canrliclates fr.onr the conr-
petitive electoral arena and proter:ts thenr fronr the
vagaries of political fortune. Cer.tainl-v Section 2 does
not require this.

II. Raeially polarizetl voting is not establisherl as a nratter
of law rvhenever less than a nrajoritv of rvhite voters vote
for a lllack canrlirlate.

The district court identifiecl rtcial bloc r'otins as
the "single most porverful frctor in cursirrg raeial
vote dilution." J.S. 47a. In light of this emphasis,

i' Based on the totality of eircumstanees, it is difficult
\ to comprehend how the court conclucled that blaeks

\ in North Carolina have less opportunity tlran rvhites

\ to participate in the political process ancl to eleet

\ cagdidates of their choiee. The corrrt's opiniorr seen)sr\
Y6 turn upon its belief that althorrgh the evitlerree 

I

proved. that blacks could be elected, there rr.as no 
I

grrarantee that blacks alrvays s,onld be elccterl frorn 
I

the districts at issue. 
/

Apparently the court thought thut guararrteerl ae- [
cess required guaranteed victory in as nlilnv sintlc--\
member ttsafe" seats as could be drtu,rr. The tler:isiori



36

it rvas essential to apply the proper legal definition
of racial bloc voting. The court, horvever, accepted
the opinion of the plaintiffs, expert that racially
polarized voting occurs rvhenever less than b0/, of
the rvhite voters cast a ballot for the black candidate.,'
As a result, the court concluded. that there was
"severe and persistent" racial bloc voting dcspite
the follorving facts:

a) fn the 1982 }fecklenburg Ifouse primary, Berry
who is black received 50/s of the white vote and
Riclrardson rvho is also black, received Bg%. Ber.ry re-
ceived more votes than any other candidate. R. 189.
Both black candidates won the primary. R. 188-89;
Pl.Ex. 14(c), R. 85, 112.

b) In the 1982 llouse general election for l\Ieck-
lenberg Cotnty, 42/6 of the rvhite voters voted for
Berr.,; 29% of the whites voted for Richardson. Pl.
Ex. 14(d), R.86, 112. fn a field of 18 carrdidates
for 8 seats, 11 rvhite candidates received ferver s,hite
votes than Berry. Id. fn that election Berry finished
second, and Richardson finished ninth, only 250 votes
behind the eighth place winner.

'5 The plaintiffs' expert, Bernard Grofmann, expressed his defini-
tion of racial polarization in several rvays. Basically, he opinecl that
racially polarized voting occurs rvhen rvhite votcrs ancl blnek voters
vote differently from one another. R. 50. Racial polarization is
substantively significant rvhen the outcome rrould be tlifferent if
the eleetion rvere held among only the black voters as eonrparecl to
only the rvhite voters. R. 159. Thus a black canclidate rvho rvorrrtr
be the choicc, of the blar:k voters rvoukl have to gct a rnajority of
the rvhite vote to rvin in the hypothetical all-rvhite constituerrcy.
Thus Dr. Grofmann's de firriti<ln of substautively sigrrificant racially
polarized votirrg can be recluced to this: it occurs rvhcncver less
than a majority of the rvhite voters vote for the black cantlitlate.
R. 161.

.37

c) In the 1982 Ifouse general election for Durham
County, black candidate Spaulding re(,eiver1 17ln of
the rvhite vote and rvon the election. R. 183-84, Pl.Ex.
.16(e), R. 85, 112.

d) In the 1982 Ifouse primary election for Durham
County, one black candidate, Clement, rcceiverJ i32/6
of the black vote and 26/6 of. the white vote. R. 181-
82; PI.Ex. 16(d), R. 86, 112. The blaek canclidate
Spaulding received 90/6 of the blacl< vote and 37l,
of the rvhite vote. Id. Of the tno black candirlates,
only Spaulding was successful in the prinrarl,. 1rl.
Had the blaek voters wanted to elet't Clement, the.v
could have cast doubleshot votes. R. 18+.

e) In the 1982 Senate primary election for trfecli-
Ienburg County, the black candidate, Polk, receir.etl
32% of the rvhite vote and lvas sllceessful in the
primary. Pl.Ex. 13(j), R. 86, 112.

f) In the 1982'nleclilenbrrrg Senate general elec-
tion, Polk, a blacli eandiclate received li:37i of the
rvhite vote. The leading rvhite candiclate reeeived 59f[
of the rvhite vote. Pl.Ex. 13(k), R. 86, 112.

g) In the 1982 Forsl'th lfouse primary, the two
black candidates, Ffauser and I(errnecll', receiverl 251,
und 36/e, respectively, of the vote. I'>l.Ex. 15(e). R.
86, 112. In a field of 11, Kennedy reeeiverl nlore rvlrite
votes than six of those candiclates. Pl.Ilx. 15(e), R. 86,
112. Both black candidates wou the primar.v. Itl.

h) In the 1982 Ilouse general election for Forsr-th
Count.r,, Ifauser and I(errnedy reeciretl -12''1, anrl {(ir7,
respectively, of the rvhite vote. Il. Tilt-16; Pl.I,lx. 15

(f), R. 86, 112. The successful rvhite r:a:ulirlttcs rc-
eeived substantially equal strpport frorn bllcl< and



3S

rvlrite voters-all rvithin a range betrveet 43/s and
63%. Both black caudidates were successful. /d.

i) In the 1982 lfouse primary election for 'W'ake

County, a six-member district, the only black candi-
date rtrnning, Dan Blue, reeeivecl more total votes
than any other of the 15 canclidates. R. 194-95; Pl.Ex.
1?(d), R. 86, 112. Bhre reeeived more rvhite votes
than 11 of the other eandiclates. Id.

j ) In the 1982 Ffouse gur,."ol election for Wal<e
County, Blue ran second out of a field of 17 candi-
dates. R. 195, Pl.Ex. 17(e), R. 86, 112. BIue also
received the second highest number of rvhite votes.
R. 196; Pl.Ex. 17(e), R. 86, 112.

k) Although there have been relatively ferv black
republiean eandidates, and they have not been srtc-
cessful, these eandidates have ahvays received a

greater number of rvhite votes than black votes. Pl.
Ex. 16(f), R. 86, 112.

I) Finally, of the 11 elected blacli incumllents rvho

have sought reelection to the General Assemllly in
recent )'ears, all 11 have won reelection.'u R. 178.

The conrt's conclttsion ttrat these facts estalllish
polarized voting simpll' flies in the face of eommon
sense. In 1982 legislative elections in Durham, For-
syth, I\Iecklenbrrrg and Wal<e Counties, all of the
black eandidates reeeived betrveen 25 and 50% of the
tghite vote. Of 8 Black Democratic eandiclatcs in these

counties, 5 rvere elected. These results do not "ap-

'6 The court incorrectly found that "some blaek inertmbcnts rvere

reelected . .".f.S. at 40a. Plaintiffs'orvn expert testified that all
btack incumbents rvho had offered for reelection had bcen success-

ful. R. 178.

39

proach any realistic legal standard of polarized vot-
ing." Jones t. City of Lttbbocl;,730 F.2d 233 (5th
Cir. 1984) (reh'g en banc denied).

Tn Terraz@s v.' Clements, 537 F.Supp. 514 (N.D,
Tex. 1984), for example, the Court founrl that rvher.e
35/6 of the rvhites voted for the minority eantlidate.
there was no racial polarization. Similarly, in Collins
v. City of iNs,.83-526-N (E.D. Va. .Iuly 19,
1984), the district cori rmined that in 3 elections

ere 32, 31 and 26/, resle\ively, of the whites had
for a black candida!y', there was no legally
nt raeial polarizg*{on, Collins at 25.

racial bloe voting aclopted bv the
court sufrers from both coneeptual and methoclologieal
deficiencies. Whate'r,er merits Dr. GrofmAnn's clefini-
tion ma,v have as a theoretical constnrct it has ver.y
little to offer to an anall'sis of a real politieal eontest
where the objective of anv e.nd'date, reearclless of
raee, is to win. Grofmann eonsiders raeial poiariza-
tion "substantively signifieant" rvhen less tharr 50i,
of the rvhite voters vote for the llltr:k canrlitlate. R.
81. In terms of political reality, this is a rvhollv arhi-
trary distinction. Raciallv polarizecl voting is sienifi-
cant (t'politicallv," "substantivell-," "statisticall.r',"
or oUrenvise) rvhen the black canrlidatc does not re-
ceive enough rvhite support to rvin the cler:tiorr.

A candidate is primarily concernerl with reeeiv-
ing more votes than his opponents, not rvith tlre r:olor
of the person l,ho votes for him. I)ist:rcte anri tlif-
ferent voting patterns tnlong ritciltl i{I'oups concerrr
the candidnte rvhen thev oper:rtc to plcverrt hirn frotn
winning. This political reality lies at the root of Con-
gress' inclusion of polarizcd votins in Section 2



analyses. The mere presence of different voting pat-
terns in the rvhite aud black electorate does not prove
anything one way or the other about vote dilution.
lVhat iI probative of vote dihrtion is voting alongl
racial lines rvhich shuts the minority group out of 

I

the process by consistently clefeating the candidateJ
of its choiee. Rogers v. Lodge, 458 U.S. 613, 616

(1982) . In Rogers, this Court describecl polarization
in terms of its capacity to effect actual election
outcomes:

Voting along racial Iines allorvs those eleetecl to
ignore blacli interests rvithout fear of politieai
eorlsequenees and rvithout bloc voting the mi-
nority canclidltcs rvottltl ttot lose elections solel-v
becattse of their race. 102 S.Ct. at 3731.

In NAACP v. Gadsden Countly School Board, 691
F.2d 978 (11th Cir. 1982), the court quoted the lan-
guage from Roelers as a guide to gaging polarizetl
voting in Gadsden Count,v elections. The court fottnd
that black candidates had lost elections solely llecartse

of their race. In a county in whieh blac'lis comprised
48.5% of the registered voters and in rvhieh 14 blacks
had nrn for office since 1972, only 1 black had been

elected. Voting by rvhites along racial lines had pre-
vented blaclis from rvinning elections.

Similarlv, in ltcltillan v. Escambia Count7,1, Flor'
ida, 688 F.2d 960 (5th Cir. 1982) no hlack had ever
served on the County Commission elected at-large.
The Court of Appeals noted that "it is sensible in
tlris case at is u'as in Lodge to expect that at least

some blacks rvotrlcl lle elected absent racial polarized
voting. " 688 F.2d 960, 966 at n.14. Here again, the

court viewed racial bloc voting as prollative of the

4l

issue of vote dilution insofar as it excluded blacks
from winning electious, and this is its proper legal
applieation. Nothing in the record. in this case indi-
cates that racial bloc voting has prevented black can-
didates from obtaining eleetive office.

The methodology upon which Dr. Grofmann based
his analysis is severely flawed. He analyzed 53 elec-
tions using both extreme ease analysis and the eeo-

Iogieal regression rnodel. fn extreme ease analysis,
those precinets which are nearly all white or all black
are examined. X'or instanee if a precinct is 95% white,
and a black eandidate reeeives 50/s of the votes in
that preeinct, one can surmise that approximately
50% of the whites voted for the blaeli candidate.
This method has Iimited applieability because of the
small mrmber of homogeneous preeinets. Regression
analysis uses a computer program to eompare the
proportion of the vote received by blaek and rvhite
candidates in each precinct with the proportion of
blaek and white voters in each precinet.

One fundamental problem with regression analyses
is what is called. the "eeologieal fallacy,"-the ttse of
aggregate data to explain indiviclual behavior. Dr.
Grofmann did not use trtrn out figures, bttt rather
eomparetl the registered voters' by raee rvith the elec-

tion returns for each preeinet. This fallaciously as-

sumes that the turnout on any given election dar',
whether it be l0% or 90/s of the voters, exaetly
mirrors the racial make-up of the voter rolls for that
precinct.

The more critical problem is that lloth ertreme case

analysis and regression artall'sis show nothing more

than raw correspondence between the percentage of
votes for the black candidate and the percentaee of



42

blacks living in a particular precinct. ff there is a
correlation between these two variables which has sta-
tistical significance, then the analyst concludes that race
is determining election outcomes. R. 219. But unless
the expert has tested variables other than race, he can-
not know that race correlates better than, or even as
rvell as, party affiliation, age, religion, income ineum-
bency, edueation, campaign expenditures, or any other
factor that could have influenced the election. R. 1387-
89.

Regression analysis, as used by Dr. Grofmann and
aeeepted. by the eourt, increasingly has come under
attaek because it fails to account for the influence of
variables other than race. The model systemically in-
fers, by correlating only t'ivo variables-race of the
candidate and racial composition of a precinct-that
race is the only explanation for the correspondence
between the variables." As Judge Higginbotham notecl
in his concurrence in Jones v. Lubbocla, "it ignores

'l See McClcfkcy v. Zant, 580 F.Supp. 338 (N.D. Ga. 1984), in
which the district eourt provides an exhaustive critique of thc
regression model. " IT]he regression equation can produee endless
series of self-fulfilling propheeies because it always attempts to
explain actual outcomes based on whatever variables it is given."
Id. at 370.

Dr. Grofmann virtually admitted this rvhen he explained rvhy
he eonsidered no other factors in his analysis: " IR]aeial polariza-
tion as I have defined it deals with the voting patterns of rvhite
voters versus the voting patterns of black voters. Therefore, I look
at the voting patterns of rvhite voters versus the voting patterns
of black voters to determine racial polarization." R. 177.

Grofmann also testified that race rvas thc cause of the differenees
in voting patterns. IIe stated: "IW]hen black voters consistently
rank black eandidates one and trvo in their preferenee ortlcring
and white voters consistently rank blaek candidates at the bottom
. . . in a society which has a history of racial discrimination and

43

the reality that race . . . may mask a host of other
explanatory variables." 730 F.2d 283 (Eth Cir. 1984)
(reh'g. en banc denied.)

Tn Lee County Branch of the NAACP v. City of
Opeli,ka, 748 F.2tt L473 (5th Cir. 1973) the Fifth
Circuit panel agreed that a, court should not place
too much reliance on regression analysis in nrling on
the issue of racially polarized voting. The corrrt un-
derscored the importance of a multiple variable anal-
ysis to establish the true role of race in determining
election outcomes. Likewise, in Tercazas v. Cletnents,
581 X'.Supp. 1329 (N.D. Tex. 198{) the district court
rejected the analysis of the plaintiffs, expert beeause
he failed to measure the impact of more than one
variable. See also, Ouerton v. City of zlrrsflz, No.
A-84-CA-189 (W.D. Tex. I\[arch 12, 1985) (rlistrict
court adopted the opinion of ,fudge I-Iigginbotham
and rejected plaintiff's eonclusions llased on regre.s-
sion) ; Collins v. City of Norfollc, Civil No. 8l]-ir26-N
(E.D. Va. July 19, 1984) (court rejected plaintiff's
analysis because it did not considcr ,,factors other
than raee which may greatly influence voting be-
havior.") at 21.

The district eourt inadvertently makes a ease
against the conclusions drarvn by Dr. Grofmarrn.
At the outset the court states that vote dihrtion oe-
curs when racial bloc voting intertcts rvith an elec-
toral mechanism, such as at-large clections, to dcn.y
proportional representation to a racial minoritl, group
which has "distinctive group interests.,, ,I.S. at 1-la.

in rvhieh there is elear raeial polarization, the most plausible
explanation is that race is determiuing tlte elections." R. glg.

This is tantamount to saying, there is racial polarization beeause
there is racial polarization.



give so;no irrdi-€ation -thaf@d' r
wilh polarization in voting that effectively locks th'6 /

LL

ft is reasonable for people to vote for candidates who
represent their interests. And if the political and gov-
ernmental interests of any group are truly distinctive,
alignment of interests might explain differences in
voting patterns more eogently than race. Regression
analyses as employed by Dr. Grofmann simply cannot
account for non-racial factors. fn fact, it cannot even
establish whether any factor is more important thau
race in determining election outcomes.

Although the legislative history of amended. Section
2 does not discuss racial bloc voting in detail, it does-

al minority out of the political forum. The Su
ittee on the Constitution criticized t

unds
the t'predominant determinant" of voting preferences.
Srrbcommittee Rep. at 41-4J. The Subcommittee rtoted,
that contrary to this assumption, in many jurisdic-
tions raeial bloc voting is not monolithic and indeed
black candidates enjoy substantial rvhite support. Id.
The Senate Judiciary Corrmittee responded to this
criticism by emphasizing that, in those communities
where black candidates do receive substantial rvhite
support, "it rvould be exceedingly difficuit for plain-
tiffs to show that they were effectively excluded from
fair access to the politieal proeess." S. Rep. at 33.

In explaining the reach of the results test, the
Ifouse Report stated, that ('[i]t would be illegal for
an at-large election scheme for a particular state or
local body to permit a bloc voting majority over a
substantial period of time consistently to defeat minor-
ity cand.idates." H. Rep. at 30. The facts in this ease

do not even approach the situation contemplated by
the House Report.

45

The plaintiffs in this case have not dernonstrated
that bloc voting by whites has deprived them of politi-
cal access or electoral success. Blaek candidates for
the General Assembly in 1982 received. substantial
rvhite support, in many instances more than 40/o of.
the white vote. The record shows that betrveen 1gT0
and 1982, 27 Black democrats ran in general eleetions
for the General Assembly. Of these, 18 won. R. 1{7;
Pl.Ex. 19, R. IJ.z, 775. Two-thirds of all black caudi-
dates have been successful. This is hardly consistent
rvith voting patterns which shut minorities out of the
process.

The district eourt emphasized that ,,the demon-
strable unrvillingness of substantial numbers of thc
racial majority" to vote for black candidates is the
"linchpin" of vote dilution. J.S. at 1-t-15a. The corrrt,
horvever, accepted the theoretical constnrct of plain-
tiffs' expert witness and failed to see the simple trrrilr:
a substantial number of rvhites do vote for. black
candidates; or the more eompellirrg tnrth: the nrrm-
ber of whites willing to vote for black canditlates is
so substantial, that black candidates rvin.

CONCLUSION

X'or the reasons stated hereir, the dccision of tl-re
United States District Court belorv should be re-
versed.



46

Respectfrrlly submitted,

Lecy I[. TuonNnunc
Attorney General

*Jnnnrs Luorlno
Kerur,nnx Hnorerv I,IcGulr
Luor.renn & IIcGueu, P.C.
90017th Street, N.W., Suite 1020
Washington, D.C. 20006
(202) 872-1095

JeMBs'[!-lr,r,4gB, Js.
Deputy Attorney General for Legal Affairs
Trenp B. Slrr,py
Nonrre S.I-fennnr.r,
Assistant Attorneys C eneral

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

AttorneEs f or Appellants

*Cou,nsel, of Recoril