Brief for Appellees

    • 

QUESTIONS PRESENTED 

( 1 ) Does section 2 of the Voting 

Rights Act require proof that 

m ~ nority voters are totally 

excluded from the political 

process? 

(2) Does the election of a minority 

candidate conclusively establish 

the existence of equal electoral 

opportunity? 

(3) Did the district court hold that 

section 2 requires either 

proportional representation or 

guaranteed minority electoral 

success? 

- i -



(4) Did the district court cor­

rectly evaluate the evidence of 

racially polarized voting? 

(5) Was the district court's finding 

of unequal electoral opportunity 

"clearly erroneous"? 

- ii -



TABLE OF CONTENTS 

Page 

Questions Presented •••••••••••••• i 

Table of Authorities ••••••••••••• vi 

State ment of the Case •.•.•••••••• 1 

Findings of the District Court ••. 7 

Summary of Argument ••••••••••••.• 15 

Argument 

I. Section 2 Provides 
Minority Voters an Equal 
Opportunity to Elect 
Representatives of their 
Choice . • • . • . • • • • • • • • • • . 19 

A. The Legislative History of 
the 1982 Amendment of 
Section 2 •••••••••••••• 21 

B. Equal Electoral Oppor­
tunity is the Statutory 
Standard ••••••••••••..• 44 

C. The Election of Some 
Minority Candidates Does 
Not Conclusively Establish 
the Existence of Equal 
Electoral Oppor-
tunity •••••••••.••••• 50 

- iii -



II. The District Court Re­
quired Neither Proportional 
Representation Nor Guaran­
teed Minority Political 

I II. 

Success • • . • . • • • • • • • • • • • • • • 64 

The District Court Applied 
the Correct Standards In 
Evaluating the Evidence of 
Polarized Voting •••••••••. 70 

A. Summary of the District 
Cour~'s Findings...... 73 

B. The Extent of Racial 
Polarization was Sig­
nificant, Even Where 
Some Blacks Won....... 76 

C. Appellees were not Re­
quired to Prove that White 
Voters' Failure to Vote 
for Black Candidates was 
Racially Motivated •••• 81 

D. The District Court's 
Finding of the Extent of 
Racially Polarized 
Voting is not Clearly 
Erroneous •••••••••••.• 88 

IV. The District Court Finding 
of Unequal Electoral . Oppor­
tunity Was Not Clearly 
Erroneous ................. 95 

A. The Applicability of 
Rule 52 • • • • • • • • • • • • • • 95 

- iv -



Conclusion 

B. Evidence of Prior 
Voting Discrimi-:-
nation ••••••••••••••• 102 

C. Evidence of Economic 
and Educational Dis­
advantages • • • • • • • • • • • 107 

D. Evidence of Racial 
Appeals by White 
Candidates • • • . • • • • • • • 113 

E. Evidence of Polar-
ized Voting • • • • • • • • . • 118 

F. The Majority Vote 
Requirement •••••••••• 118 

G. Evidence Regarding 
Electoral Success of 
Minority Candi-
dates • • • • • • • • • • • • • • • . 121 

H. The Responsiveness 
Issue . . . . . . . . . . . . . . . . 130 

I. . Tenuousness of the 
State Policy for Multi­
member Districts ••••• 131 

135 

- v -



TABLE OF AUTHORITIES 

Cases 

Alyeska Pipeline Service v. Wilder­
ness Society, 421 U.S. 
240 (1975) •.••••.••••••••... 100 

Anderson v. City of Bessemer 
City, U.S. , 84 
L.Ed.2cr----518 (1"91f5") ••• •• • 16,98,99 

Anderson v. Mills, 664 F.2d 
600 (6th Cir. 1981) •••.•••.• 84 

Bose Corp. v. Consumers Union, 
8 0 L. Ed • 2d 50 2 ( 1 9 8 4) • • • • • • . 9 8 

Buchanan v. City of Jackson, 
708 F.2d 1066 (6th Cir. 
1983) • • • . • • • • • • • • • • • • • • • • • . • 96 

City of Port Arthur v. u.s., 
517 F. Supp. 987, affirmed 
459 u.s. 159 (1982-) •••••..• 85,120 

City of Rome v. U.S., 446 u.s. 
156 (1980) .••••••.••..•. 

Collins v. City of Norfolk, 
768 F.2d 572 (4th Cir. 

72,99,120 

July 22, 1985) ••.••••••••.•• 96 

- vi -



Cases 

Connecticut v. Teal, 457 
u.s. 440 (1982) ••••••••• •••• 63 

Cross v. Baxter, 604 F.2d 875 
(5th Cir. 1979) •••••••••••.• 56 

David v. Garrison, 553 F.2d 923 . 
(5th Cir. 1977) ••••••••••••• 110 

Dove v. Moore, 539 F.2d 1152 
(8th Cir. 1976) . • ••••••••••• 110 

Ernst and Ernst v. Hochfelder, 
425 u.s. 185 (1976) ••••••••• 50 

Garcia v. United States, u.s. 
10s s.ct. 479 (1984) •••• 36 

Gaston County v. United States, 
395 u.s. 285 (1969) ••••••••• 107 

Gilbert v. Sterrett, 508 F.2d 
1389 (5th Cir. 1975) •••••••• 96 

Harper & Row, Publisher v. 
Nation, u.s. , 85 L.Ed.2d 
588 (198m-•••••• -:::......... 98 

Hendrick v. Walder, 527 F.2d 44 
(7th Cir. 1975) • • • • • • • • • • • • • 110 

Hendrix v. Joseph, 559 F.2d 
1265 (5th Cir. 1977) •••••••• 96 

Hunter v. Underwood, . U.S. , 
8 5 L. Ed. 2d 2 2 2 ( n8'5) • • • • • . • 9 9 

- vii -



Cases 

Jones v. City of Lubbock, 727 
F.2d 364 (5th Cir. 1984); 
reh'g en bane denied, 730 
F.2d 233 (1984) .• ~ •••••• 88,96,130 

Kirksey v. Bd. of Supervisors, 554 
F • 2d 1 3 9 ( 5th C i r • 1 9 7 7 ) • . • 56 

Kirksey v. City of Jackson, 699 
F.2d 317 (5th Cir. 1982) •••• 84 

Lodge v. Buxton, Civ. No. 176-
55 (S.D. Ga. 10/26/78), aff'd 
Rogers v. Lodge, 458 u.s. 
613 (1982) • •• ••••• ••.• •• •• •• 80 

Major v. Treen, 574 F. Supp. 325 
(E.D. La. 1983}(three judge 
court) ..................... 56,71,78 

McCarty v. Henson, 749 F.2d 
1134 (5th Cir. 1984), aff'd 
753 F.2d. 879 (5th Cir. 
(1985) •••••••••••••••••••••• 96 

McCleskey v. Zant, 580 F. Supp. 
380 (N.D. Ga. 1984), aff'd 753 

F.2d 877 (5th Cir. 198!>) •• .•• 86 

McGill v. Gadsden County 
Commission, 535 F.2d 277 
(5th Cir. 1976) •••••••••.•.• 96 

McMillan v. Escambia County, 748 
F.2d 1037 (11th Cir. 1984) •• 108,130 

Metropolitan Edison Co. v. PANE, 
460 u.s. 766 (1983) •••••••.• 98 

- viii-



Cases 

Mississippi Republican Execu­
tive Committee v. Brooks, 

u.s. , 105 s.ct. 
4'f'b ( 1984}.................. 85 

Mobile v. Bolden, 446 u.s. 55 
(1980} ••••••••••••• • •••• 22,23,24,30, 

NAACP v. Gadsden County School 
Board, 691 F.2d 978 (11th 

82 

Cir. 1982} • • • • • • • • • • • • • • • • • • 80 

Nevett v. Sides, 571 F.2d 209 
( 1 978) •••••••••••••••••••••• 

Parnell v. Rapidas Parish School 
Board, 563 F.2d 180 (5th 

68,69 

Cir. 1977) • • • • • • • • • • • • • • • • . • 96 

Perkins v. City of West Helena, 
6 7 5 F • 2d 2 0 1 ( 8th C i r • 1 9 8 2 ) , 
aff'd mem. 459 u.s. 801 
( 1 gs2)-.-...................... ·ss 

Rogers v. Lodge, 458 u.s. 613 
(1982) •••••••••••• 79,80,85,99,130 

South Alameda Spanish Speaking 
Org. v. City of Union 
City, 424 F.2d 291 (9th 
Cir. 1970)................... 84 

Str i ckland v. Washington, U.S. 
, 80 L.Ed.2d 674 (~4) 98 

United Jewish Organizations v. 
Carey, 403 u.s. 144 
( 1977) • • . . . • • . • • • • • • • • • • • . • • 68 

- ix -



Cases 

U.S. v. Bd. of Supervisors of 
Forrest County, 571 F.2d 
951 (5th Cir. 1978) ••.•. . ... 56 

u.s. v. Carolene Products Co., 
304 u.s. 144 (1938) ••• ~..... 71 

u.s. v. Dallas County Commission, 
739 F.2d 1529 (11th Cir. 
1984} • • • . . . • • . . . . . . . • • • • . • • 97 

u.s. v. Executive ~ommittee of 
Democratic Party of Greene 
County, Ala. 254 F. Supp. 
543 (S.D. Ala. 1966) ••••••.• 

u.s. v. Marengo County Commission, 
731 F.2d 1546 (11th Cir. 

84,85 

1984) • ••. . .• ••• .••• ••• 56,57,85,96, 
108,130 

Velasquez v. City of Abilene, 
725 F.2d 1017 (5th Cir. 
1980} • • • • • • • • . • . • • • • • • • • • . . • 56' 96 

Wallace v. House, 515 F.2d 619 
(5th Cir. 1975) •••••••••••• 56,59 

Whitcomb v. Chavis, 403 u.s. 
1 24 ( 1971 ) • • • • • • • • • • • • • • • • • • 1 29 

White v. Regester, 412 u.s. 
755 ( 1973) • • • • • • • • • Eassim 

Zimmer v. McKeithen, 485 F.2d 1297 
(5th Cir. 1973) (en bane), 
aff'd sub nom East Carroll 
Par1sh-schooi Board v. Marshall, 
424 u.s. 636 (1976) 30,55,58,96 

- X -



OTHER AUTHORITIES 

Statutes 

Section 5, Voting Rights Act of 
1965, 42 u.s.c. 
§1973c ••••••••••••••• 3,4,22,133 

Voting Rights Act Amendments of 
1982, Section 2, 
96 Stat. 131, 42 u.s.c. 
s 1973 •• 8 •••••••••••••••••• 

Federal Rules of Civil Procedure, 

passim 

Rule 52(a} •••••••••••• 67,98,100,101 

Constitutional Provisions: 

Fourteenth and Fifteenth 
Amendments •••••••••••••••• 

House and Senate Bills 

H.R. 3198, 97th Cong., 1st Sess., 
S2 ••••••••••••••••••••••• 

H.R. 3112, 97th Cong., 1st 
Sess., S201 •••••••••••••• 

Senate BillS. 1992 ••.•••••••• 

Congressional Reports 

House Report No. 97-227, 97th 
Cong., 1st Sess. (1981} 

Senate Report No. 97-417, 97th 
Cong., 2d Sess. ( 1982} ••• 

- xi -

passim 

23 

23 

33,34,36 

passim 

passim 



Congressional Hearings 

Hearings before the Subcommittee 
on Civil and Constit~tional 
Rights of the House Judiciary 
Committee, 97th Cong., 1st Sess 
( 1 981) • • • • • • • • • • • • • • • • • • • • 23 

Hearings before the Subcom-
mittee on the Constitution 
of the Senate Judiciary 
Committeeon S.53, 97th Cong., 
2d Sess. (1982) ••••••••• 28,34,35,41, 

42,43 

Congressional Record 

128 Cong. Rec. (daily ed. Oct. 
2' 1 981 ) .•..........•.•.. 25,26,29 

128 Cong. Rec. (daily ed., Oct. 
5, 1981) • • • • • • • • • • • • • • • • 26,27, 29 

128 Cong. Rec. (daily ed. Oct. 
15, 1981) ••••••••••••••• 29 

128 Cong. Rec. (daily ed. June 9, 
1982) . . . . . . . . . . . . . . . . 35,37,40,47 

48,54,82 

128 Cong. Rec. (daily ed. June 1 0, 
1982) . . . . . . . . . . . . . . . . . . . . 35,37 

128 Cong. Rec. (daily ed. June 1 5, 
1982) . . . . . . . . . . . . . . . . . . . 29,34,37,82 

128 Cong. Rec. {daily ed. June 16, 
1 982) • • • • • • • • . • • • • • • • • • • • 56 

- xii -



128 Cong. Rec. (daily ed. June 17, 
1982) • • • • • • • • • • • • • • • • • • 31 '34' 3 7' 39 

48,53,82 

128 Cong. Rec. (daily ed. June 
18, 1982) •••••••••• 29,37,46,48,53 

72,82 

128 Cong. Rec. (daily ed. June 
23, 1982) .•••••••••••••••• 

Miscellaneous 

Joint Center for Political Studies 
National Roster of Black 
Elected Officials 

34 

( 1984) • • • • • • • • • • • • • • • • • • • • 1 

Los Angeles Times, May 4, 
1982 . • • . . . . . • • . • • • • • • • • • 43 

Wall Street Journal, May 4, 
1982 •••••••••••••••••••••• 43 

New York Times, Dec. 18, 1981, 
p. B7, col. 4 •••.•••••••• 41 

- xiii-





STATEMENT OF THE CASE1 

This is an action challenging the 

dist~icting plan adopted in 1982 for the 

election of the North Carolina legisla-

ture. North Carolina has long had the 

smallest percentage of blacks in its state 

legislature of any state with a subs tan-

tial black population. 2 Prior to this 

litigation no more than 4 of the 120 state 

representatives, or 2 of the 50 state 

The opinion of the district court as 
reprinted in the appendix to the 
Jurisdictional Statement has two signifi­
cant typographical errors. The Appendix at 
J.S. 34a and 36a states, "Since then two 
black citizens have run successfully in 
the (Mecklenburg Senate district) ••. " 
and "In Halifax County, black citizens 
have run successfully ••• " Both sentences 
of the opinion actually read "have run 
unsuccessfully." (Emphasis added). Due to 
tnese and other errors, the opinion has 
been reprinted in the Joint Appendix, at 
JA5-JA58. 

2 See Joint Center fo~ Political Studies, 
National Roster of Black Elected Officials 
(1984) 14, lb-17; JA Ex. Vol. I, Ex. 1. 

' 



- 2 -

senators, were black. 3 Although blacks are 

22.4% of the state population, the number 

of blacks in either house of the North 

Carolina legislature had never exceeded 

4%. The first black was not elected to 

the House until 1968, and the first black 

state senator was not elected until 1974. 

North Carolina makes greater use of at 

large legislative elections than most 

other states; under the 1982 districting 

plan 98 of the 120 representatives and 30 

of the 50 state senators were to be chosen 

from multi-member districts. 4 

In July 1981, following the 1980 

census, North Carolina initially adopted a 

redistricting plan involving a total of 

148 multi-member and 22 single member dis -

3 

4 

Stip. 96, JA 94-5 . 

Stip. Ex. BB and EE, Chapters 1 and 2 
Sess. Laws of 2nd Extra Session 1982, JA 
67. 



- 3 -

. t 5 tr1c s. Under- this plan ever-y single 

House and Senate distr-ict had a white 

majority. 6 There was a population devia-

tion of 22% among the pr-oposed distr-icts. 

Forty of Noeth Carolina's 100 

counties are covered by section 5 of the 

Voting Rights Act; accordingly, the state 

was cequ iced to obtain preclearance of 

those por-tions of the redistricting plan 

which affected those 40 counties. North 

Carolina submitted the 1981 plan to the 

Attorney General, who entered objections 

to both the House and Senate plans, having 

concluded that "the use of large multi-

member districts effectively submerges 

cognizable concentrations of black 

5 

6 

Stip. Ex. D and F, Chapters 800 and 821 
Sess. Laws 1981, JA 61. 

The opinion states one district was 
major-ity black in population, JA7, 
referr-ing to the second 1981 plan, 
enacted in October- after this lawsuit was 
filed. Stip. Ex. L, JA 62. 



population into 

torate." Stip. 

- 4 -

a majority white elec­

Ex. N and 0, JA6 3. For 

similar reasons, the Attorney General also 

objected to Article 2 Sections 3(3)and 

5(3) of the North Carolina Constitution, 

adopted in 196 7 but not submit ted for 

preclearance until after this lawsuit was 

filed, which forbade the subdivision of 

counties in the formation of legislative 

districts. Stip. 22, JA 63. 

Appellees filed this action in 

September 1981, alleging, inter alia, that 

the 1981 redistricting plan violated 

section 2 of the Voting Rights Act and the 

Fourteenth Amendment. Following the 

objections of the Attorney General under 

section 5, the state adopted two subse­

quent redistricting plans; the complaint 

was supplemented to challenge the final 

plans, which were adopted in April, 1982. 

Stips. 42,43; JA 67. In June 1982 Congress 



5 .;.. 

amended section 2 to forbid election 

practices with discriminatory results, and 

the complaint was amended to reflect that 

change; thereafter the litigation focused 

primarily on the application of . the 

amended section 2 to the circumstances of 

this case. Appellees contended that six 

of the multi-member districts had a 

discriminatory result which violated 

section 2, and that the boundaries of one 

single member district also violated that 

provision of the Voting Rights Act. 

After an eight day trial before 

Judges J. Dickson Phillips, Jr., Franklin 

T • Dupree , J r • , and W • Ear 1 B r i t t , J r . , 

the court unanimously upheld plaintiffs' 

section 2 challenge. The court enjoined 

e l ections in the challenged d i stricts 

pending court approval of a . districting 

7 plan which did not violate section 2. By 

7 Appellees did not challenge all multi-



- 6 -

subsequent orders, the court approved the 

State's proposed remedial districts for 

six of the seven challenged districts. The 

court entered a temporary order providing 

for elections in 1984 only in one dis-

trict, former House District No. a; after 

appellants • proposed remedial plan was 

denied preclearance under section 5. The 

remedial aspects of the litigation have 

not been challenged and are not before 

this Court. · 

On appeal appellants have disputed 

the correctness of the three judge 

district court's decision regarding the 

legality of five of the six disputed 

multi-member districts. Although appel-

lants have referred to some facts from 

member districts used by the state and 
the district court did not rule that the 
use of multi-member districts is E.~r. 
se illegal. The district court's oraer 
!eaves untouched 30 multi-member districts 
in the House and 13 in the Senate. 



- 7 -

House District No. 8 and Senate District 

No. 2, they have made no argument in their 

Brief that is pertinent to the lower 

court's decision concerning either of 

these districts. 8 Like the United States, 

we assume that the correctness of the 

decision below regarding House District 

No. 8 and Senate District No. 2 is not 

within the scope of this appeal. 

THE FINDINGS OF THE DISTRICT COURT 

The gravamen of appellees' cl.aim 

under section 2 is that minority voters in 

the challenged multi-member districts do 

not have an equal opportunity to partici-

pate effectively in the political process, 

8 The Court did not note probable juris­
diction as to Question II, the question in 
the Jurisdictional Statement concerning 
these two districts, and even the 
Solicitor General concedes that there is 
no basis for appeal as to these two 
districts. u.s. Br. 11. 



- 8 -

and particularly that they do not have an 

equal opportunity to elect candidates of 

their choice. Five of the challenged 1982 

multi-member districts were the same as 

had existed under the 1 971 plan, and the 

one that was different, House District 39, 

was only modified slightly. The election 

results in those districts are undisputed. 

Until 1972 no black since Reconstruction 

had been elected to the legislature from 

any of the counties in question. The 

election results since 1972 are set forth 

on the table on the opposite page. As 

that table indicates, prior to 1982 no 

more than 3 of the 32 l~gislators elected 

in any oRe election in the challenged 

districts were black; in 1981, when this 

action was filed, five of the seven 

districts were represented by all white 

delegations, and three of the districts 

still had never elected a black legisla-



BLACK CANDIDATES ELECTED 

1972-1982 

District Prior 
(Number to 
of Seats) 1972 1972 1974 1976 1978 1980 1982 

House 8 ( 4) 0 0 0 0 0 0 0 

House 21 ( 6) 0 0 0 0 0 1 

House 23 ( 3) 0 1 1 1 1 1 1 

House 36 (8) 0 0 0 0 0 0 1 

House 39 (5) 0 0 1 1 0 0 2 

Senate 2*(2) 0 0 0 0 0 0 0 

Senate 22 ( 4) . 0 0 1 1 1 0 0 

TOTAL (32) -0- -,- ·-3- -r -2- -2- 5 

Source: Stio. 95 
JA 93-94 

* Senate District 2 was part of a two member district through the 
1980 election; but no county in Senate District 2 was ever in a 
district which elected a black Senator. 





- 9 -

tor. The black popuia t ion of the chal­

lenged districts ranged from 21.8% to 

39.5%. JA 21. 

The district court held on the basis 

of this record and its examination of 

election results in local offices that 

"[t)he overall results achieved to date 

••• are minimal." JA 39. The court noted 

that, following the filing of this action, 

the number of successful black legislative 

candidates rose sharply. 

however, that the results 

It concluded, 

of the 1982 

election were an aberration unlikely to 

recur again. It emphasized in particular 

that in a number of instances "the 

pendency of this very litigation worked a 

one-time advantage for black candidates in 

the form of unusual organized political 

support by white leaders concerned to 

fo~estall single-member districting." JA 

39 n.27. 



- 10 -

The district court identified a 

number of distinct practices which put 

black voters at a comparative disadvantage 

when placed in the six majority white 

multi-member districts at issue. The 

court noted, first, that the propo~tion of 

white voters who ever voted for a black 

candidate was extremely low; an average of 

81% of white voters did not vote for any 

black candidate in primary elections 

involving both black and white candidates, 

and those whites who did vote for black 

candidates ranked them last or next to 

last. JA 42. The court noted that in none 

of the 53 races in which blacks ran for 

office did a majority of whites ever vote 

for a black candidate, and the sole 

election in which 50% voted for the black 

candidate was one in which that candidate 

was running unopposed. JA. 43-48. The 

district court concluded that this pattern 



- 11 -

of polarized voting put black candidates 

at a severe disadvantage in any race 

against a white opponent. 

The district court also concluded 

that black voters were at a comparative 

disadvantage because the rate of regist r a­

tion among eligible blacks was substan­

tially lower than among whites. This 

disparity further diminished the ability 

of black voters to make common cause with 

sufficient numbers of like minded voters 

to be able to elect candidates of their 

choice. The court found that these 

disparities in registration rates were the 

lingering effect of a century of virulent 

official hostility towards blacks who 

sought to register and vote. The tactics 

adopted for the express purpose of 

disenfranchising blacks included a poll 

tax, a 1 i teracy test with a grandfather 

clause, as well as a number of devices 



- 12 -

which discouraged registration by assuring 

the defeat of black candidates. JA 25-26. 

When the use of the state literacy test 

ended after 1970, whites enjoyed a , 60.6% 

to 44.6% registration advantage over 

blacks. Thereafter registration was kept 

inaccessible in many places, and a decade 

later the gap had narrowed only slightly, 

with white registration at 66.7%, and 

b 1 a c k reg i strati on at 52 • 7% • J A 2 6 and 

n.22. 

The trial court held that the ability 

of black voters to elect candidates of 

their choice in majority white districts 

was further impaired by the fact that 

black voters were far poorer, and far more 

often poorly educated, than white voters. 

JA 28-31. Some 30% of blacks had incomes 

below the poverty line, compared to 10% of 

whites; conversely, whites were twice as 

likely as blacks to earn over $20,000 a 



- 13 -

year. Almost all blacks over 30 years old 

attended inferior segregated schools. JA 

29. The district court concluded that 

this lack of income and education made it 

difficult for black voters to elect 

candidates of their choice. JA 31. n.23. 

The record on which the court relied 

included extensive testimony regarding the 

difficulty of raising sufficient funds in 

the relatively poor black community to 

meet the high cost of an at-large cam­

paign, which has to reach as many as eig~t 

times as many voters as a single district 

campaign. (See notes 107-109, infra). 

The ability of minority candidates to 

win white votes, the district court found, 

was also impaired by the common practice 

on the part of white candidates of urging 

whites to vote on racial lines. JA 33-34. 

The record on which the court relied 



- 14 -

included such appeals in campaigns in 

1976, 1980, 1982, and 1983. (See page 115, 

infra). In both 1980 and 1983 white 

candidates ran newspaper advertisements 

depicting their opponents with black 

leaders. In 1983 Senator Helms denounced 

his opponent for favoring black voter 

registration, and in a 1982 congressional 

run-off white voters were urged to go to 

the polls because the black candidate 

would be "bussing" [sic] his "block" [sic] 

vote. (See pp. 116-18, infra). 

The district court, after an exhaus­

tive analysis of this and other evidence, 

concluded that the challenged multi-member 

districts had the effect of submerging 

black voters as a voting minority in those 

districts, and thus affording them "less 

opportunity than .•• other members of the 



- 15 -

electorate to participate in the political 

process and to elect representatives of 

their choice." JA 53-54. 9 

SUMMARY OF ARGUMENT 

Section 2 of the Voting Rights Act 

was amended in 1982 to establish a 

nationwide prohibition against election 

practices with discriminatory results. 

Specifically prohibited are practices that 

afford minorities "~opportunity than 

other members of the electorate to 

participate in the political process and 

to elect representatives of their choice". 

(Emphasis added). In assessing a claim of 

unequal electoral opportunity, the courts 

are required to consider the "totality of 

circumstances". A finding of unequal 

9 Based on similar evidence the court made a 
parallel fiooi ng concerning the fracturing 
of the minority community in Senate 
District No. 2. JA 54. 



- 16 -

opportunity is a factual finding subject 

to Rule 52. Anderson v.City of Bessemer 

City,_ U.S.__._ (1985). 

The 1982 Senate Report specified a 

number of specific factors the presence of 

which, Congress believed, would have the 

effect of denying equal electoral oppor­

tunity to black voters in a majority white 

multi-member district. The three-judge 

district court below, in an exhaustive and 

detailed opinion, carefully analyzed the 

evidence indicating the presence of each 

of those factors. In light of the 

totality of circumstances established by 

that evidence, the trial court concluded 

that minority voters were denied equal 

electoral opportunity in each of the six 

challenged multi-member districts. The 

court below expressly recognized that 

section 2 did not require proportional 

representation. JA 17. 



- 17 -

Appellants argue here, as they did at 

trial, that the presence of equal elec­

toral opportunity is conclusively estab­

lished by the fact blacks won 5 out of 30 

at-large seats in 1982, 14 months after 

the complaint was filed. Prior to 1972., 

however, although blacks had run, no 

blacks had ever been elected from any of 

these districts, and in the election held 

immediately prior to the commencement of 

this action only 2 blacks were elected in 

the challenged districts. The district 

court properly declined to hold that the 

1982 elections represented a conclusive 

change in the circumstances in the 

districts involved, noting that in several 

instances blacks won because of support 

from whites seeking to affect the outcome 

of the instant litigation. JA 39 n.27. 



- 18 -

The Solicitor General urges this 

Court to read into section 2 a per ~ rule 

that a section 2 claim is precluded as a 

matter of law in any district in which 

blacks ever enjoyed "proportional repre­

sentation", regardless of whether that 

representation ended years ago, was 

inextricably tied to single shot voting, 

or occurred only after the commencement of 

the litigation. This p~ ~approach is 

inconsistent with the "totality of 

circumstances" requirement of section 2, 

which pcecludes treating any single factor 

as conclusive. The Senate Report ex­

pressly ~tated that the election of black 

officials was not to be treated, by 

itself, as precluding a section 2 claim. 

s. Rep. No. 97-417, 29 n.115. 

The district court correctly held 

that there was sufficiently severe 

polacized voting by whites to put minority 



- 19 -

voters and candidates at an additional 

d i sad vantage in the majority white 

multi-member districts. On the average 

more than 81% of whites do not vote f or 

black candidates when they run i n primary 

elect ions. JA 42. Black candidates 

receiving the highest proportion of black 

votes ordinarily receive the smallest 

number of white votes. Id. 

ARGUMENT 

I. SECTION 2 PROVIDES MINORITY VOTERS 
AN EQUAL OPPORTUNITY TO ELECT REPRE­
SENTATIVES OF THEIR CHOICE 

Two decades ago Congress adopted the 

Voting Rights Act of 1965 in an attempt to 

end a century long exclusion of most 

blacks from the electoral process. In 

1981 and 1982 Congress concluded that, 

despite substantial gains in registration 

s ince 1965, minorities still did not enjoy 

t he s ame opportunity as whites to parti-



- 20 -

cipate in the political process and to 

elect representatives of their choice, 10and 

that further remedial legislation was 

necessary to eradicate all vestiges of 

discrimination from the political pro-

11 cess. The problems identified by Congress 

included not only the obvious impediments 

to minority participation, such as 

registration barriers, but also election 

schemes such as those at-large elections 

which impair exercise of the franchise and 

dilute the voting strength of minority 

citizens. Although some of these practices 

had been corrected in certain jurisdic-

t ions by operation of the preclearance 

provisions of Section 5, Congress con-

10 s. Rep. No. 97-417, 97th Cong., 2d Sess., 
34 (1982} (hereinafter cited as "Senate 
Report"}. 

11 Senate Report 40; H.R. Rep. No. 97-227, 
97th Cong., 1st Sess., 31 (1981} (here­
inafter cited as "House Report"). 



- 21 -

eluded that their eradication required the 

adoption, in the form of an amendment to 

Section 2, of a . 1 12 h . b . . ~t1o~ pro 1 1t1on 

against practices with discriminatory 

results. 13 Section 2 protects not only the 

right to vote, but also "the right to have 

the vote counted at full value without 

dilution or discount." Senate Report 19. 

A. Legislative History of the 1982 
Amendment to Section 1 

The present language of section 2 was 

adopted by Congress as part of the Voting 

Rights Act Amendments of 1982. (96 Stat. 

1 3 1 ) • The 1 982 amend.ments altered the 

Voting Rights Act in a number of ways, 

12 House Report, 28; senate Report . 15. 

13 Appellants and the Solicitor General 
concede that the framers of the 1982 
amendments established a standard of proof 
in vote dilution lawsuits based on 
discriminatory results alone. Appellants' 
Br. at 16; u.s. Brief II at 8, 13. 



- 22 -

extending the pre-clearance requirements 

of section 5, modifying the bailout 

requirements of section 4, continuing 

until 1992 the language assistance 

provisions of the Act, and adding a new 

requirement of .assistance to blind, 

disabled or illiterate voters. Congres-

sional action to amend section 2 was 

prompted by this Court's decision in 

Mob i l e v • Bo 1 den, · 4 4 6 U • S • 55 , 6 0-6 1 

(1980), which held that the original 

language of section 2, as it was framed in 

1 96 5, fore bade only election practices 

adopted or maintained with a discrimina-

tory motive. Congress regarded the 

decision in Bolden as an erroneous 

i n t e r pre t a t ion of section 2 , 1 4 and thus 

acted to amend the language to remove any 

such intent requirement. 

---------
14 House Rep. at 29; Senate Report at 19. 



- 23 -

Legislative proposals to extend the 

Voting Rights Act in 1982 included from 

the outset language that would eliminate 

the intent requirement of Bolden and apply 

a totality of circumstances test to 

practices which merely had the effect of 

discriminating on the basis of race or 

color. 15 Support for such an amendment was 

repeatedly voiced during the extensive 

House hearings and much of this testimony 

was concerned with at-large election plans 

that had the effect of diluting the impact 

of minority votes. 16 On July 31 the House 

1 5 H. R. 311 2 , 97th Co ng . 1 1 s t S e s s • , § 2 0 1 ; 
H.R. 3198, 97th Cong., 1st Sess., § 2. 

16 The three volumes of Hearings before the 
Subcommittee on Civil and Constitutional 
Rights of the House Judiciary Committee, 
97th Cong. 1 1st Sess., are hereinafter 
cited as "House Hearings." Testimony 
regarding the proposed amendment to 
section 2 can be found at 1 House 
He a r i ng s 1 8- 1 9 , 1 3 8 , 1 9 7 , 2 2 9 , 3 6 5 , 
424-25, 454, 8 52; 2 House Hearings 90 5-07 1 
993-95,1279, 1361, 1641; 3 House Hearings 
1880, 1991, 2029-32, 2036-371 2127-28, 
2136, 2046-471 2051-58. 



- 24 -

Judiciary Committee approved a bill that 

extended the Voting Rights Act and 

included an amendment to section 2 to 

remove the intent requirement imposed by 

Bolden. 17 The House version included an 

express disclaimer to make clear that the 

mere lack of proportional representation 

would not constitute a violation of the 

law, and the House Report directed the 

courts not to focus on any one factor but 

17 House Report, 48: 

"No voting qualification or prere­
quisite to voting, or standard, practice, 
or procedure shall be imposed or applied 
by any state or political subdivision [to 
deny or abridge] in a manner which results 
in a qenial or a6ri<lgment of the right oT 
any c1tizen to vote on account of race or 
color, or in contravention of the guaran­
tees set forth in section 4(b)(2). The 
fa~t that .members of a minority group 
nave not 6een e!ected in num6ers 
~~ual to tfie grout's proportion ·-or 
t e fop u 1 at ion s fi a I . not , i n and of 
i tsei, constitute a viOlation of this 
s~ction." 



- 25 -

to look at all the relevant circumstances 

in assessing a Section 2 claim. H. Rep. 

at 30. 

The House Report set forth the 

committee's reasons for disapproving any 

intent requirement, and described a 

variety of practices, particularly the use 

of at-large elections 18and limitations on 

h . nd 1 f . . 19 . h t e t1mes a paces o· reg1strat1on, w1 t 

whose potentially discriminatory effects 

the Committee was particularly concerned. 

On the floor of the House the proposed 

amendment to section 2 was the subject of 

considerable debate. Representative 

Rodino expressly called the attention of 

the House to this portion of the bill, 20 to 

which he and a number of other speakers 

18 Hous e Report, 17-19, 30. 

19 Id. 14, 16, 17, 30, 31 n.105. 

20 128 Cong. Rec. H 6842 (daily ed. · Oct. 2, 
1981) . 



gave 21 support. 

- 26 -

Proponents of section 2 

emphasized its applicapility to multi-

member election districts that diluted 

minority votes, and to burdensome regis-

. nd . . 22 A b f trat1on a vot 1 ng pract 1ces. num er o 

speakers opposed the proposed alteration 

. 2 3 . . . 
to sect1on 2, and Representat1ve Bl1ley 

moved that the amendment to section 2 be 

deleted from the House bill. The Bliley 

2 1 1 2 8 Co ng • Re c • H 6 8 4 2 ( Rep • Rod i no ) , H 
6843 (Rep. Sensenbrenner), H 6877 (Rep. 
Chisholm) (daily ed.; Oct. 2, 1981); 128 
Cong. Rec. H 7007 (Rep. Fascell)(daily 
ed. , Oct. 5, 1 9 81 ) • 

22 128 Cong. Rec. H 6841 (Rep. Glickman; 
dilution), H 6845-6 (Rep. Hyde; registra­
tion barriers), H 6847 (Rep. Bingham; 
voting practices, dilution); H 6850 (Rep. 
Washington, registration and voting 
barriers); H 6851 (Rep. Fish, dilution) 
(daily ed., Oct. 2, 1981). 

23 128 Cong. Rec. H 6866 (Rep. Collins), H 
6874 (Rep. Butler) (daily ed., Oct. 2, 
1981); 128 Cong. Rec. H 6982-3 (Rep. 
Bliley), H 6984 (Rep. Butler, (Rep. 
McClory), H 6985 (Rep. Butler) (daily ed. 1 

Oct. 5 1 1981) • 



- 27 -

amendment was defeated on a voice vote. 24 

Following the rejection of that and other 

amendments the House on October 5, 1981 

passed the bill by a margin of 389 to 24.
25 

On December 16, 1981, a Senate bill 

essentially identica l to the House passed 

bill was introd uced by Senator Mathias. 

The Senate bill, S. 199 2, had a total of 61 

initial sponsors, far more than were 

necessary to assure passage. 2 Senate 

Hearings 4, 3 0, 15 7. The particular 

subcommittee to which S.1992 was referred, 

however, wa s dominated by Senators who 

were high l y critical of the Voting Rights 

Act arne ndme nts. After extensive hear-

24 128 Cong. Rec. Fi 6 (-H$2-85 {daily ed., Oct. 
5, 1981). 

25 Id. at H6985. 



- 28 -

ings, 26most of them devoted to section 2, 

the subcommittee recommended passage of 

S.1992, but by a margin of 3-2 voted to 

delete the proposed amendment to section 

2. 2 Senate Hearings 10. In the full 

commit tee Senator Dole proposed language 

which largely restored the substance of s. 

1992; included in the Dole proposal was 

the language of section 2 as it was 

ultimately adopted. The Senate Commmittee 

issued a lengthy report describing in 

detail the purpose and impact of the 

section 2 amendment. Senate Report 15-42. 

The report expressed concern with two 

distinct types of practices with poten-

tially discriminatory effects--first, 

restrictions on the times, places or 

26 Id. Heari ngs be f ore the Subcommitee on 
tne Constitution of the Senate Judiciary 
Committee on S.53, 97th Cong., 2d Sess. 
(1982) (hereinafter cited as "Senate 
Hear i ng s " ) • 



- 29 -

methods of registration or voting, the 

burden of which would fall most heavily on 

. . . 27 d d 1 . m1nor1t1es, an , secon , e ect1on systems 

such as those multi-member districts which 

reduced or nullified the effectiveness of 

minority votes, and impeded the ability of 

minority voters to elect candidates of 

their choice. 28 The Senate debates leading 

to approval of the section 2 amendment 

29 reflected similar concerns. 

The Senate report discussed the 

various types of evidence that would bear 

on a section 2 claim, and insisted that 

the courts were to consider all of this 

evidence and that no one type of evidence 

27 Senate Report, 30 n.119. 

28 Senate Report, 27-30. 

29 128 Cong. Rec. S 6783 (daily ed. June 15, 
1982)(Sen. Dodd); 128 Cong. Rec. S 7111 
(daily ed. June 18, 1982) (Sen. Met­
zenbaum), S7113 (Sen. Bentsen), S 7116 
(Sen. Weicker), _ S 7137 (Sen. Robert 
Byrd) . 



- 30 -

should be treated as conclusive. 30 Both the 

Senate Report and the subsequent debates 

make clear that it was the intent of 

Congress, in applying the amended section 

2 to multi-member districts, to reestab-

lish what it understood to be the totality 

of circumstances test that had been estab-

lished by White v.Regester, 412 u.s. 755 

(1973), 31 and that had been elaborated upon 

by the lower courts in the years .between 

White and Bolden. 32 The most important and 

frequently cited of the courts of appeals 

d . 1 . . M . h 33 1 ut1on cases was Z1mmer v. cKe1t en, 

30 Senate Report, 23, 27. 

31 Senate Report, 2, 27, 28, 30, 32. 

32 Senate Report, 16, 23, 23 n.78, 28, 30, 
31 , 32. 

33 Zimmer was described by the Senate Report 
as a "seminal" decision, id. at 22, and 
was cited 9 times in the Report. Id. at 
22, 24, 24 n.86, 28 n.112, 28 n. 1TI, 29 
n • 1 1 5 , 2 9 n • 1 1 6 , 3 0 , 3 2 , 3 3 • S e na tor 
DeConcini, one of the framers of the Dole 
proposal, described Zimmer as "[p]erhaps 
the clearest expression of the standard of 



- 31 -

485 F.2d 1297 (5th Cir. 1973)(en bane), 

aff'd sub nom. East Carroll Parish School 

Board v. Marshall, 424 u.s. 636 (1976). 

The decisions applying White are an 

important source of guidance in a section 

2 dilution case. 

The legislative history of section 2 

focused repeatedly on the possibly 

discriminatory impact of multi-member 

districts. Congress was specifically 

concerned that, if there is voting along 

racial lines, black voters in a majority 

white multi-member district would be 

unable to compete on an equal basis with 

whites for a role in electing public 

officials. Where that occurs, the white 

majority is able to determine the outcome 

of elections and white candidates are able 

proof in theoe vote dilution cases." 128 
Cong. Rec. S6930 (daily ed. June 17, 
1982). 



- 32 -

to take positions without regard to the 

votes or preferences of black voters, 

rendering the act of voting for blacks an 

empty and ineffective eitual. The Senate 

Repoet described in detai l the types of 

ciecumstances, based on the White/Zimmer 

factoes, undee which blacks in a multi­

membee disteict would be less able than 

whites to elect representatives of their 

choice. Senate Report, 28-29. 

The Solicitor General, in support of 

his contention that a section 2 claim may 

be decided on the basis of a single one of 

the seven Senate Report factors--electoral 

success--regardless of the totality of the 

ciecumstances, offees an account of the 

legislative histoey of section 2 which is, 

in a number of eespects, substantially 

i naccu rate. Fiest, the Sol ici toe asseets 

that, when the amended veesion of S. 1992 

was eeported to the full Judiciary 



- 33 -

Commit tee, there was a "deadlock." U.s. 

Br. I, 8; Br. II, 8 n.12. The legislative 

situation on May 4, 1982 when the Dole 

proposal was offered, could not conceiv-

ably be characterized as a "deadlock," and 

was never so described by any supporter of 

the pr-oposal. The entire Judiciary 

Committee favored reporting out a bill 

amending the Voting Rights Act, and fully 

two thirds of the Senate was committed to 

restoring the House results test if the 

Judiciary Committee failed to do so. 

Critics of the original S.1992 had neither 

the desire nor the votes to bottle up the 

bill in Committee, 34and clearly lacked the 

votes to defeat the section 2 amendment on 

the floor of the Senate. The leading 

34 2 Senate Hearings 69 (Sen. Hatch) 
(" [W] hatever happens to the proposed 
amendment, I intend to support favorable 
reporting of the Voting Rights Act by this 
Commit tee") 



- 34 -

Senate opponent of the amendment acknowl-

edged that passage of the amendment had 

been foreseeable "for many months" prior 

to the full Committee's action. 35 Senator 

Dole commented, when he offered his 

proposal, that "without any change the 

House bill would have passed." 2 Senate 

Hearings 57. Both supporters 36 and oppo­

nents37of section 2 alike agreed that the 

35 2 Senate Hearings 69 (Sen. Hatch). 

36 Senate Report, 27 (section 2 "faithful to 
the basic intent" of the House bill); 2 
S e n a t e Hear i ng s 6 0 ( S e n. Do 1 e ) ( " [ T ] he 
compromise retains the results standards 
of the Mathias/Kennedy bill. However, we 
also feel that the legislation should be 
strengthened with additional language 
delineating what legal standard should 
apply under the results test ••• ") ( Empha­
sis added), 61 (Sen. Dole) (language 
"strengthens the House-passed ·bill") 68 
(Sen. Biden)(new language merely "clari­
fies" 8.1992 and "does not change much"), 
128 Cong. Rec. S6960-61 (daily ed. June 
17, 1982) (Sen. Dole); 128 Cong. Rec. 
H3840 (daily ed. June 23, 1982) (Rep. 
Edwards) • 

37 2 Senate Hearings 70 (Sen. Hatch) ("The 
proposed compromise is not a compromise at 
all, in my opinion. The impact of the 



- 35 -

language proposed by Senator Dole and 

ultimately adopted by Congress was 

intended not to water down the original 

House bill, but merely to spell out more 

explicitly the intended meaning of 

legislation already 

House. 38 

approved by the 

The Solicitor urges the Court to give 

little weight to the Senate Report 

accompanying S.1992, describing it as 

proposed compromise is not likely to be 
one whit different than the unamended 
House measure" relating to section 2; . 
Senate Report, 95 (additional views of 
Sen. Hatch); 128 Cong. Rec. (daily ed. 
June 9, 1982) S 6515, S.6545 (Sen. Hatch); 
128 CODJ. Rec. (daily ed. June 10, 1982) S 
6725 (Sen. East); 128 Cong. Rec. (daily 
ed., June 15, 1982) S.6786 (Sen. Harry 
Byrd). 

38 The compromise language was designed to 
reassure Senate cosponsors that the White 
v. Regester totali ty of circumstances test 
e-naorsed in the House, and espoused 
throughout the Senate hearings by sup-
porters of the House passed bill, would be 
codified in the statute itself. 2 Senate 
Hearings 60; Senate Report, 27. 



- 36 ..:.. 

merely the work of a faction. u.s. Br. I, 

8 n.6; u.s. Br. II, 8 n.12, 24 n.49. 

Nothing in the legislative history of 

section 2 supports the Solicitor's 

suggestion that this Court should depart 

from the long established principle that 

committee reports are to be treated as the 

most authoritative guide to congressional 

intent. Garcia v. United States, 105 

S.Ct. 479, 483 (1984). Senator Dole, to 

whose position the Solicitor would give 

particular weight, prefaced his Additional 

Views with an acknowledgement that "[T]he 

Committee Report is an accurate statement 

of the intent of S.1992, as reported by 

the Commit tee." 39 On the floor of the 

Senate both supporters and opponents of 

39 Senate Report 193; see also id. at 196 ("I 
express my views not to ta~ issue with 
the body of the report") 199 ("I concur 
with the interpretation of this action in 
the Committee Report."), 196-98 (addi­
tional views of Sen. Grassley). 



- 37 -

section 2 agreed that the Committee report 

constituted the authoritative explanation 

of the legislation. 40 Until the filing of 

its briefs in this case, it was the 

consistent contention of the Department of 

Justice that in interpreting section 2 

"[t]he Senate Report. •• is entitled to 

greater weight than any other- oE the 

legislative history." 41 Only in the spring 

of 1985 did the Department reverse its 

position and assert that the Senate report 

was merely the view of one faction that 

40 128 Cong. Rec. S6553 (daily ed., June 9, 
1982)(Sen. Kennedy); S6646-48 (daily ed. 
June 10, 1982) {Sen. Kennedy); S6781 (Sen. 
Dole)(daily ed. June 15, 1982); S6930-34 
(Sen. DeConcini), S6941 7 44, S6967 (Sen. 
Mathias), S6960, 6993 (Sen. Dole), S6967 
S6991-93 (Sen. Stevens), S6995 (Sen. 
Kennedy)(daily ed. June 17, 1982); 
57091-92 (Sen. Hatch), 57095-96 (Sen. 
Kennedy) (daily ed., r.June 18, 1982). 

41 Post-Trial Brief for the United States of 
America, County Council of Sumter County, 
South Carolina v. United States, No. 
82-0912 {D.D.C.), 31. 



- 38 -

"cannot be taken as determinative on all 

co u nts." u.s. Br. I, p. 24, n.49. This 

newly formulated account of the legisla-

tive history of section 2 is clearly 

incorrect. 

The Solicitor urges that substantial 

weight be given to the views of Senator 

h 42 nd h. 1 . 1 . . 43 Hate , a 1s eg1s at1ve ass1stant. In 

fact, however, Senator Hatch was the most 

intransigient congressional critic of 

amended section 2, and he did not as the 

42 In an amicus brief in ~ity Council of the 
City of Chicago v. Ketchum, No. 84-~~7, 
rererreo"to ln his brief in this case, 
u.s. Br. II 21 n.43, the Solicitor asserts 
that Senator Hatch "supported the com­
promise adopted by Congress." Brief for 
United States as Amicus, 16 n.15. 

43 The Solicitor cites for a supposedly 
authoritative summary of the origin and 
meaning of sec t ion 2 an article written by 
Stephen Markman. U.S. Br. II, 9, 10. 
Mr . Markman is the chief counsel of the 
Judiciary Subcommittee chaired by Senator 
Hatch, and was Senator Hatch 1 s chief 
assistant in Hatch 1 s unsuccessful opposi­
tion to the amendment to section 2. 



- 39 -

Solicitor suggests support the Dole 

proposal. On the contrary, Senator Hatch 

urged the Judiciary Committee to reject 

44 the Dole proposal, and was one of only 

four Committee members to vote against 

' t 45 1 • Following the Committee's action, 

Senator Hatch appended to the Senate 

Report Additional Views objecting to this 

modified version of section 2. 46 On the 

floor of the Senate, Senator Hatch 

supported an unsuccessful amendment that 

would have struck from the bill the 

amendment to section 2 that had been 

adopted by h C . 47 d t e omm1ttee, an again 

de nou need the language which eventually 

44 2 Senate Hearings 70-74. 

45 Id. 85-86. 

46 Senate Report, 94-101. 

47 128 Cong. Rec. S6965 (daily ed. June 17, 
1 982) • 



- 40 -

48 became law. 

Finally, the Solicit6r urges that the 

views of the President regarding section 2 

should be given "particular weight" 

because the President endorsed the Dole 

proposal, and his "support for the 

compromise ensured its passage." u.s. Br. 

I, 8 n.6. We agree with the Solicitor 

General that the construction of section 2 

which the Department of Justice now 

proposes in its amicus brief should be 

considered in light of the role which the 

Administration played in the adoption of 

this legislation. But that role is not, 

as the Solicitor asserts, one of a key 

sponsor of the legislation, without whose 

48 Immediately prior to the final vote on the 
bill, Senator Hatch stated, "these 
amendments promise to effect a destructive 
transformation in the Voting Rights Act." 
128 Cong. Rec. S7139 (daily ed. June 18, 
1982); 128 Cong. Rec. (daily ed. June 9, 
1982) S6506-21. 



- 41 -

support the bill could not have been 

adopted. On the contrary, the Admi nis-

tration in general, and the Department of 

Justice in particular, were throughout the 

legislative process among the most consis-

tent, adamant and outspoken opponents of 

the proposed amendment to section 2. 

Shortly after the passage of the 

House bill, the Administration launched a 

concerted attack on the decision of the 

House to amend section 2. On November 6, 

1981, the President released a statement 

denouncing the "new and untested 1 effects 1 

standard," and urging that section 2 be 

limited to instances of purposeful 

discrimination, 2 Senate Hearings 763, 

a position Mr. Reagan strongly redffirmed 

at a prf:'-~s c onference on December 17.
49 

When in ,1 <J. :,ua:cy i 982 the Senate commenced 

4 9 New York Times 1 Dec • 1 8 1 1 9 8 1 , p . B 7 , 
col. 4. 



- 42 -

hearings on proposed amendments to the 

Voting Rights Act, the Attorney General 

appeared as the first witness to denounce 

section 2 as "just bad legislation," 

objecting in particular to any proposal to 

apply a results standard to any state not 

covered by section 5. Senate Hearings 

70-97. At the close of the Senate 

Hearings in early March the Assistant 

Attorney General for Civil Rights gave 

extensive testimony in opposition to the 

adoption of the totality of circumstances/ 

results test. Id., at 1655 et seq. Both 

Justice Department officials made an 

effort to solicit public opposition to the 

results test, publishing critical analyses 

in several national newspapers 50and, in the 

50 2 Senate Hearings 770 (Assistant At­
torney General Reynolds) (Washington 
Post), 774 (Attorney General Smith) ( 
Op-ed article, New York Times), 775 
(Attorney General Smith) ( Op-ed article, 
Washington Post). 



- 43 -

case of the Attorney General, issuing a 

warning to members of the United Jewish 

Appeal that adoption of a results test 

would lead to court ordered racial quo-

51 tas. The White House did not endorse the 

Dole proposaJ. until after it had the 

support of 13 of the 18 members of the 

Judiciary Committee and Senator Dole had 

warned publicly that he had the votes 

necessary to override any veto. 52 

Having failed to persuade Congress to 

reject a results standard in section 2, 

the Department of ,Justice now seeks to 

persuade this court to adopt an interpre-

tation of section 2 that would severely 

limit the scope of that provision. Under 

these unusual circumstances the Depart-

--·-------
51 Id. at 780. 

52 Los Angeles Time s, May 4, 1982, p. 1; Wall 
S t r e e t Jour na 1 , May 4 , 1 9 8 2 , p • 8 ; 2 
Senate Hear1ngs 58. 



- 44 -

ment's views do not appear to warrant the 

weight that might ordinarily be appro-

priate. We believe that greater deference 

should be given to the views expressed in 

an amicus brief in this case by Senator 

Dole and the other principal cosponsors of 

section 2. 

B. ~q~al Electoral Opportunity is 
~ Statutory Standard 

Section 2 provides that a claim of 

unlawful vote dilution is established if, 

"based on the totality of circumstances," 

members of a racial minority "have less 

opportunity than other members to partici-

pate in the political process and to elect 

. f h . h . " 53 h representat1ves o t e1r c o1ce. In t e 

instant case the district court concluded 

that minority voters lacked such an equal 

opportunity. JA 53-54. 

53 42 U.S.C. S 1973, Section 2(b) is set 
. forth in the opinion below, JA 13. 



- 45 -

Both appellants and the Solicitor 

General suggest, however, that section 2 

is limited to those extreme cases in which 

the effect of an at-large election is to 

render virtually impossible the election 

of public officials, black or otherwise, 

favored by minority voters. Thus appel­

lants assert that section 2 forbids use of 

a multi-member district when it "effec­

tively locks the racial minority out of 

the political forum," A. Br. 44, or 

"shut[s] racial minorities out of the 

electoral process" Id. at 23. The Soli­

citor invites the Court to hold that 

section 2 applies only where minority 

candidates are "effectively shut out of 

the political process". U.S. Br. II 27; 

see also id. at 11. On this view, the 

election of even a single black candidate 

would be fatal to a section 2 claim. 



- 46 -

The requirements of section 2, 

however, are not met by an election scheme 

which merely accords to minorities some 

minimal opportunity to participate in the 

political process. Section 2 requires 

that "the political processes leading to 

nomination or election" be, not merely 

open to minority voters and candidates, 

but "equally open". (Emphasis added). The 

prohibition of section 2 is not limited to 

those systems which provide minorities 

with no access whatever to the political 

process, but extends to systems which 

afford minorities "less opportunity than 

other members of the electorate to 

participate in the political process and 

to elect representatives of their choice." 

(Emphasis added). 

This emphasis on equality of opportu­

nity was reiterated throughout the 

legislative history of section 2. The 



- 47 -

Senat~ report insisted repeatedly that 

s ~ction 2 required equality of political 

. 54 s t l opportun1ty. ena or Do e, in his 

54 s. Rep. 97-417, p. 16 ("equal chance to 
participate in the electoral pro cess"; 
"equal access to the electoral process") 
20 ("equal access to the political 
process"; at-large elections invalid if 
they give minorities "less opportunity 
than ..• other residents to participate in 
th~ political processes and to elect 
legislators of their choice"), 21 (plain­
titfs .must prove they "had less opportu­
nity than did other residents in the 
district to participate in the political 
processes and to elect legislators of 
their choice"), 27 (denial of "equal 
access to the political process"), 28 
(minority voters to have "the same 
opportunity to participate in the politi­
cal process as other citizens enjoy"; 
minority voters entitled to "an equal 
opportunity to participate in the 
politcal processes and to elect candi­
dates of their choice"), 30 ("denial of 
equal access to any phase of the electoral 
process for minority voters"; standard is 
whether a challenged practice "operated 
to deny the minority plaintiff an equal 
opportunity to participate and elect 
candidates of their choice"; process must 
be "equally open to participation by the 
group in question"), 31 (remedy should 
assure "equal opportunity for minority 
citizens to participate and tp elec~ 
candidates of their choice"). 



- 48 -

Additional Views, endorsed the committee 

report, and reiterated that under the 

language of section 2 minority voters were 

to be given "the same opportunity as 

others to participate in the political 

process and to elect the candidates of 

their choice". 55 Senator Dole and others 

repeatedly made this point on the floor of. 

the Senate. 56 

The standard announced in White v. 

Regester was clearly one of equal oppor-

tu ni ty, prohibiting at-1 arge elect ions 

which afford minority voters "less 

opportunity than ••• other residents in 

55 Id. at 194 (emphasis omitted); See also 
TO. at 193 ("Citizens of all racesare 
entitled to have an equal chance of 
electing candidates of their choice •••• 11

), 

194 ("equal access to the political 
process). 

56 128 Cong. Rec. S6559 , S6560 (Sen. 
Kennedy)(daily ed. June 9, 1982); daily 
ed. June 17, 1982); 128 Cong. Rec. 
S7119-20 (Sen. Dole), (daily ed. June 18, 
1982). 



- 49 -

the district to participate in the 

political processes and to elect legisla-

tors of their choice." 412 u.s. at 765. 

(Emphasis added). The Solicitor General 

asserts that during the Senate hearings 

three supporters of section 2 described it 

as "merely a means of ensuring that 

minorities were not effectively 'shut out' 

of the electoral process". u.s. Br. II, 

11. This is not an accurate description 

f h . . d b h l. . 57 o t e test1mony c1te y t e So 1c1tor. 

57 David Walbert stated that ·minority 
voters had had "no chance" to win elec­
tions in their earlier successful 
dilution cases, 1 Senate Hearings 626, 
but also noted that the standard under 
White was whether minority voters had an 
..,.equal opportunity" to do so. Id. Senator 
Kennedy stated that under section 2 
minorities could not be "effectively shut 
out of a fair opportunity to participate 
in the elect1on". Id. at 223. Clearly a 
"fair" opportunityis more than any 
minimal opportunity. Armand Derfner did 
use the words "shut out", but not, as the 
Solicitor does, followed by the clause "of 
the political process". Id. at 810. More 
importantly, both in his-oral statement 
( i d • at 7 9 6 , , 8 0 0 ) a nd h i s prepared 
statement (id. at 811, 818) Mr. Derfner 



- 50 -

Even if it were, the remarks of three 

witnesses would carry no weight where they 

conflict with the express language of the 

bill, the committee report, and the 

consistent statements of supporters. Ernst 

and Ecnst v. Hochfelde~, 425 u.s. 185, 204 

n.24 (1976). 

C. The Election of Some Minority 
Candidates Does Not Conclusively 
Establish The Existence Ot Equal 
Political Opportunity 

The c~ntral argument advanced by the 

Solicitor General and the appellants is 

that the election of a black candidate in 

a multi-member district conclusively 

establishes the absence of a section 2 

violation. The Solicitor asserts, u s. 

Br. I 13-14, that it is not sufficient 

that there is underrepresentation now, or 

expressly endorsed the equal opportunity 
standard. 



- 51 -

that there was underrepresentation for a 

century prior to the filing of the action; 

on the Solicitor's view there must at all 

times have been underrepresentation. Thus 

the Solicitor insists there is no vote 

dilution in Senate District 22, which has 

not elected a black since 1978, and that 

there can be no vote dilution in House 

District 36, because, of eight represen-

tatives, a single black, the first this 

century, was elected there in 1982 after 

this litigation was filed. 

This interpretation of section 2 is 

plainly inconsistent with the language and 

legislative history of the statute. 

Section 2(b) directs the courts to 

consider "the totality of circumstances," 

an admonition which necessarily precludes 

giving conclusive weight to any single 

. 58 " 1 ' f . circumstance. The tota 1ty o c1rcum-

58 The Solicitor's argument also flies in the 



- 52 -

stances" standard was taken from White v. 

Regester, which Congress intended to 

codify in section 2. The House and Senate 

reports both emphasize the importance of 

considering the totality of circumstances, 

rather than focusing on only one or two 

portions of the record. Senate Report 27, 

34-35; House Report, 30. The Senate . 

Report sets out a number of "[t]ypical" 

factors to be considered in a dilution 

case, 59 of which "the extent to which 

members of the minority group have been 

face of the language of section 2 which 
disavows any intent to establish propor­
tional representation. On the Solicitor's 
view, even if there is in fact a denial of 
equal opportunity, blacks cannot prevail 
in a section 2 action if they have, or 
have ever had, proportional representa­
tion. Thus proportional representation, 
spurned by Congress as a measure of 
liability, would be resurrected by the 
Solicitor General as a type of affirmative 
defense. 

59 The factors are set out in the opinion 
below. JA 1 5. 



- 53 -

elected to public office in the juris-

diction" is only one, and admonishes 

"there is no requirement that any partie-

ular number of factors be proved, or that 
• 

a majority of them point one way or the 

other." Senate Report 28-29. 60 Senator 

Dole, in his additional views acpompanying 

the committee report, makes this plain. 
! 

"The extent to which members of a pro-

tected class have been elected under the 

challenged practice or structure is just 

one factor, among the totality of circum-

stances to be considered, and is not 

dispositive." 

added) . 61 

Id. at 194. (Emphasis 

60 See also Senate Report 23 ("not every one 
o f the factor s ne eds to be proved in ucuer 
to obtain re l ief"). 

61 128 Cong. Rec. 56961 (daily ed. June 17, 
1982) (Sen. Dole); 128 Cong. Rec. S7119 
(daily ed. June 18, 1982) (Sen. Dole). 



- 54 -

The arguments of appellants and the 

Solicitor General that any minority 

electoral success should foreclose a 

section 2 claim were expressly addressed 

and rejected by Congress. The Senate 

Report explains, "the election of a few 

minority candidates does not 'necessarily 

foreclose the possibility of dilution of 

the black vote.'" I d • at 2 9 n. 1 1 5 • Both 

White v. Regester and its progeny, as 

Congress well knew, had repeatedly 

disapproved the contention now advanced by 

appellants and the Solicitor. 62 In White 

itself, as the Senate Report noted, a 

total of two blacks and five hispanics had 

62 "The results test, codified by the 
committee bill, is a well-established 
one, familiar to the courts. It has a 
reliable and reassuring track record, 
which completely belies claims that it 
would make proportional reeresentata­
tion the standard tor avoid1ng a vio­
latio,n." (Emphasis added). 1:l8Cong. Rec. 
86559 (Sen. Kennedy) (daily ed. June 9, 
1982). 



- 55 -

been elected from the two multi-member 

districts invalidated in that case. Senate 

Report 22. Zimmer v. McKeithen, in a 

passage quoted by the Senate Report, had 

refused to treat "a minority candidate's 

success at the polls [a]s conclusive." ~· 

at 29 n.115. The decision in Zimmer is 

particularly important because in that 

case the court ruled for the plaintiffs 

despite the fact that blacks had won 

two-thirds of the seats in the most recent 

at-large election. 485 F.2d at 1314. The 

dissenters in Zimmer unsuccessfully made 

the same argument now advanced by appel­

lants and the Solicitor, insisting "the 

election of three black candidates 

pretty well explodes any notion that black 

voting strength has been cancelled or 

minimized". 485 F.2d at 1310 (Coleman, 

J. , dissenting) . A number of other 

lower court cases implementing White had 



- 56 -

also refused to attach conclusive weight 

to the election of one or more minority 

d ' d 63 can 1 ates. 

There are, as Congress anticipated, a 

variety of circumstances under which the 

election of one or more minority can-

didates might occur despite an absence of 

63 Kirksey v. Board of surervisors, 554 F.2d 
139, 149 n.21 (5th C1r. 1977); Cross v. 
Baxter, 604 F.2d 875, 880 n.7, 885 (5th 
Cir. 1979); United States v. Board of 
Supervisors of Forrest County, 571 F.2d 
951, 956 (5th C1r. 1978); Wallace v. 
House, 515 F.2d 619, 623 n.2 (5th Cir. 
1975). See also Senator Hollings' 
comments on the district court decision in 
McCain v. Lybrand, No. 74-281 (D.S.C. 
April 17, 1980), finding a voting rights 
violation despite some black participation 
on the school board and other bodies. 128 
Cong. Rec. 86865-66 (daily ed. June 16, 
1975). In post-1982 section 2 cases, the 
courts have also rejected the contention 
that the statute only applies where 
minorities are completely shut out. See 
~·, United States v. Marengo Cou~ 
Commission, 731 F.2d 1546, 1571-72 (11t 
Cir. 1984), cert. denied, 105 s.ct. 375 
(1984); Velasrz v. City of Abilene, 725 
F.2d 1017, 10 3 (5th Cir. 1984); Major v. 
Treen, 574 F. Supp. 325 (E.D. La. f983) 
(three-judge court). 



- 57 -

the equal electoral opportunity required 

by the statute. A minority candidate 

might simply be unopposed in a primary or 

general election, or be seeking election 

in a race in which there were fewer white 

candidates than there were positions to be 

filled. 64 White officials or political 

64 The Solicitor General suggests that the 
very fact that a black candidate is 
unopposed conclusively demonstrates that 
the candidate or his or her supporters 
were simply unbeatable. u.s. Br. ir, 22 
n.46, 33. But the number of white 
potential candidates who choose to enter a 
particular at-large race may well be the 
result of personal or political considera­
tions entirely unrelated to the circum­
stances of any minority candidate. 
Evidence that white potential candidates 
were deterred by the perceived strength of 
a minority candidate might be relevant 
rebuttal evidence in a section 2 action, 
but here appellants offered no such 
evidence to explain the absence of a 
sufficient number of white candidates to 
contest all the at-large seats. More­
over, in other cases, the Department of 
Justice has urged courts to find a 
violation o f section 2 notwithstanding the 
election of a bla c k candidate running 
unopposed. See Unite d States v. Marengo 
Count~ Commiss1on (S.D. Ala.) No. 
7S-47 H, Proposed Findings of Fact and 
Conclusions o f Law for the United States, 



- 58 -

leaders, concerned about a pending or 

threatened section 2 action, might . 

engineer the election of one or more 

minority candidates for the purpose of 

preventing the imposition of single member 

districts. 65 The mere fact that minority 

candidates were elected would not mean 

that those successful candidates were the 

representatives preferred by minority 

filed June 21, 1985, p. 8. 

65 Zimmer v. McKeithen, 485 F.2d at 1307: 

"Such success might, on occasion, be 
attributable to the work of poli­
ticians, who, apprehending that the 
support of a black candidate would 
be politically expedient, campaign 
to insure his election. Or such 
success might be attributable to 
political support motivated by 
different considerations--namely 
that election of a black candidate 
will thwart successful challenges to 
electoral schemes on dilution 
grounds. In either situation, a 
candidate could be elected despite 
the relative political backwardness 
of black residents in the electoral 
district." 



- 59 -

voters. The successful minority candi-

dates might have been the choice, as in 

White v. Regester, 412 u.s. at 755; Senate 

Report, 22, of a white political organiza-

tion, or might have been able to win and 

retain office only by siding with the 

white community on, or avoiding entirely, 

those issues about which whites and 

non-whites disagreed. Even where minority 

voters and candidates face severe inequal-

ity in opportunity, there will occasion-

ally be minority candidates able to 

overcome those obstacles because of 

exceptional ability or "a 'stroke of luck' 

h . h . t 1 . k 1 t b t d " 66 w 1c 1s no 1 e y o e repea e •..• 

The election of a black candidate may 

also be the result of "single shooting", 

which deprives minority voters of any vote 

at all in every at-large election but one. 

66 Wallace v. House, 515 F.2d 619, 623 n.2 
(5th Ctr. 1975). 



- 60 -

In multi-member elections for the North 

Carolina General Assembly where there are 

no numbered seats, voters may typically 

vote for as many candidates as there are 

vacancies. Votes whi~h they cast for their 

second or third favorite candidates, 

however, may result in the victory of that 

candidate over the voters' first choice. 67 

Where voting is along racial lines, the 

only way minority voters may have to give 

preferred candidates a serious chance of 

victory is to cast only one of their 

ballots, or "single shoot," and relinquish 

any opportunity at all to influence the 

67 This is especially true in North Carolina 
where, because of the multiseat electoral 
system, a candidate may need votes from 
more than 50% of the voters to win. For 
example, in the Forsyth Senate primary in 
1980, there were 3 candidates for 2 seats. 
If the votes were spread evenly and all 
voters voted a full slate, each candidate 
would get votes from 2/3 or 67% of the 
voters. In such circumstances it would 
take votes from more than 67% of the 
voters to win. N.C.G.S. 163.111 (a) (2). 



- 61 -

1 . f h h 1 ff . . 1 68 e ect1on o t e ot er at- arge o 1c1a s. 

Where single shot voting is necessary 

to elect a black candidate, black voters 

are forced to limit their franchise in 

order to compete at all in the political 

process. This is the functional equiva-

lent of a rule which permitted white 

voters to cast five ballots for five 

at-large seats, but required black voters 

to abnegate four of those ballots in order 

to cast one ballot for a black candidate. 

68 For example, in 1978, in Durham County, 
99% of the black voters voted for no one 
but the black candidate, who won. JA Ex. 
Vol. I Ex. 8. In Wake County in 1978, 
approximately 80% of the black voters 
supported the black candidate, but 
because not enough of them single shot 
voted the black candidate lost. The next 
year, after substantially more black 
voters concentrated their votes on the 
black candidate, forfeiting their right to 
vote a full slate, the first black was 
elected. Similarly in Forsyth County when 
black voters voted a full slate in 1980, 

. the black candidate lost. It was only 
after many black voters declined to vote 
for any white candidates that black 
candidates were elected ·in 1982. Id. 



- 62 -

Black voters may have had some opportunity 

to elect one representative of their 

choice, but they had no opportunity 

whatever to elect or influence the 

election of any of the other representa­

tives.69 Even where the election of one or 

more blacks suggests the possible ex i s -

tence of some electoral opportunities for 

minorities, the issue of whether those 

opportunities are the same as the oppor-

69 There is no support for appellants' claim 
that white candidates need black support 
to win at-large. Black votes were not 
important for successful white can­
didates. Because of the necessity of 
single shot voting, in most instances 
black voters were unable to affect the 
outcome of other than the races of the few 
blacks who won. For example, white 
candidates in Durham were successful with 
only 5% of the votes cast by blacks in 
1978 and 1982; in Forsyth, white can­
didates in 1980 who received less than 2% 
of the black vote were successful, and in 
Mecklenburg in 1982, the leading white 
senate candidate won the general 
election although only 5% of black voters 
voted for him. Id. See, JA 244. 



- 63 -

tunities afforded to whites can only be 

resolved by a distinctly local appraisal 

of all other relevant evidence. 

These complex possibilities make 

clear the wisdom of Congress in requiring 

that a court hearing a section 2 claim 

must consider "the totality of circum-

stances," rather than only considering the 

extent to which minority voters have, or 

have not, been underrepresented in one or 

more years. Congress neither deemed 

conclusive the election of minority can-

didates, nor directed that such vic-

tories be . d 70 19 nore • The language and 

legislative history of section 2 recognize 

the potential significance of the election 

70 As in other areas of civil rights, the 
results test in section 2 no mor:e requires 
proof that no blacks ever win elections 
than the effect rule in Title VII requires 
that no blacks can ever pass a particular 
non-job related test. See Connecticut 
v. Teal, 457 U.S. 440 (1982). 



- 64 -

of minority candidates, but require that 

the significance of any such elections be 

carefully assessed from a local vantage in 

order to determine what light, if any, 

those events shed, in the context of all 

relevant circumstances, on the section 2 

claim at issue. 

II. THE DISTRICT COURT REQUIRED NEITHER 
PROPORTIONAL REPRESENTATION NOR 
GUARANTEED MINORITY POLITICAL SUCCESS 

Appellants flatly assert that the 

district court in this case interpreted 

section 2 to "creat [e) an affirmative 

entitlement to proportional representa-

tion". A. Br. 19. The district court 

opinion, however, simply contains no such 

construction of section 2. On the 

contrary, the lower court expressly held 

that section 2 did ~ require propor­

tional representation, emphasizing that 

"the fact that blacks have not been 



• • 
- 65 -

elected under a challenged districting 

plan in numbers proportional to their 
! 

perc~ntage of the population" "does not 

alone establish that vote dilution has 

resulted." JA 17. 

Appellants suggest in the alternative 

that the district court "apparently" 

equated the equal opportunity required by 

section 2 with "guaranteed electoral 

success," A. Br. 14, 15, 35. Again, how-

ever, no such rule of law is espoused in 

any portion of the opinion below. The 

ultimate factual findings of the district 

court are not cast in terms of the lack of 

any such guarantee; rather the trial court 

concluded that section 2 had been violated 

because minority voters had "less opportu-

nity than do other members of the electo­

rate to participate in the political 

process and to elect representatives of 

their choice." JA 54. 



- 66 -

The Solicitor argues that, because 

the facts as he personally views them did 

not violate section 2, the three trial 

judges must have been applying an incor-

rect, albeit unspoken, interpretation of 

section 2. Thus the Solicitor asserts that 

since the trial court 

could not reasonably have found a 
violation under the proper 
standard, [it] rather must implicitl~ 
have sought to guarantee continue 
minority electoral success. (U.S. Br. 
II, 7} (Emphasis added).71 

But the district court, whether or not the 

Solicitor thinks it reasonable, found as a 

matter of fact that blacks do not enjoy 

the same opportunity as whites to partici­

pate in the political process. The 

71 See also u.s. Br. I, 12 (in light of 
Solicitor's view of the facts, misinter­
pretation of the law is "the only expla­
nation for the district court's conclu­
sion 11 

, 1 8 n. 1 9 (district court 11 in effect 11 

interpreted section 2 as imposing a 
"proportional representation plus" stan­
dard}. 



- 67 -

Solicitor's argument is simply an attempt 

to transform a disagreement about the 

relevant facts, a disagreement in which 

the trial court's findings would be 

subject to Rule 52, into an issue of law. 

If the trial court's factual findings are 

clearly erroneous they can, of course, be 

reversed on appeal. But if both those 

factual findings and the legal principles 

announced by the district court are sound, 

the resulting judgment cannot be over­

t u r ned by hypothesizing that the three 

trial judges here were purposefully 

applying legal principles different than 

those actually set forth in their opinion. 

Although the trial court expressly 

construed section 2 not to require 

proportional representation, appellants 

suggest, A. Br. 19-20, that the lower 

court implicitly announced that it was 



- 68 -

applying just such a requirement in the 

following passage: 

The essence of racial vote dilution 
in the White v. Regester sense is 
this: tnat primarily Eecause of the 
interaction of substantial and 
persistent racial polarization in 
voting patterns (racial bloc voting) 
with a challenged electoral mechan­
ism, a r a cia 1 minority with dis­
tinctive group interests that are 
capable of aid or amelioration by 
government is effectively denied the 
political power to further those 
interests that numbers alone would 
presumptively, see United Jewish 
Q~g_anizations v;- Care¥, 403 u.s. 
T44 , 1 6 6 n. 14 ( 1 9 77 ) , g 1 ve it in a 
voting constituency not racially 
polarized in its voting behavior. 
See Nevett v. Sides, 571 F.2d 209, 
123 & n.16 (5th Cir. 1978). JA 16. 

This passage, which is immediately 

preceded by discussion of the totality of 

circumstances test, and followed by an 

exposition of the statutory disclaimer 

prohibiting proportional representation, 

asserts only that, in the absence of vote 

dilution, black voters would possess the 



- 69 -

ability to influence the policies of their 

elected officials, not, as appellants 

claim, that black voters would be certain 

to elect black officials "in proportion to 

their presence in the population". A. Br. 

20. The portion of Nevett v. Sides 

referred · to by the district court dis-

cusses the extent to which black voters, 

in the absence of polarized voting, would 

have the political power to assure that 

their interests were protected ~Y white 

officials. 72 

Appellees in this case did not seek, 

and the trial court did not require, 73 any 

72 Nevett v. Sides, 571 F.2d at 223 n.16. 

73 Indeed appellants proposed the plan now in 
effect for all the districts at issue, 
which was adopted by the court without 
modification. See supra, at 5-6. 



- 70 -

guarantee of proportional representation, 

and proportional representation did not 

result from the decision below. 74 

III. THE DISTRICT COURT APPLIED THE 
CORRECT STANDARDS IN EVALUATING 
THE EVIDENCE OF POLARIZED VOTING 

In determining whether a method of 

election violates section 2, a tcial court 

must evaluate "the extent to which voting 

in the elections of the state or political 

subdivision is racially polarized." s. 
75 . 

Rep. at 29. The court below evaluated the 

74 Prior to this litigation only 4 of the 170 
members of the North Carolina legislature 
were black; today there are still only 16 
black members, less than 10%, a far 
smaller proportion than the 22.4% of the 
population who are black. Whites, who are 
75.8% of the state population, still hold 
more than 90% of the seats in the legis-
lature. · 

75 Racial bloc voting is significant in a 
section 2 case because, in the context of 
an electoral structure wherein the number 
of votes needed for election exceeds the 
number of black voters, it substantially 
diminishes the opportunity for black 
voters to elect candidates of their 



- 71 -

lay and expert testimony on this question 

and found "that within all the challenged 

districts racially polarized voting exists 

in a persist~nt and severe degree." JA 

40. Appellants argue that this finding is 

erroneous as a matter of law. 

Appellants, A. Br. 36, and the 

Solicitor, u.s. Br • . II 39, contend that 

the court erroneously defined racially 

polarized voting as occurring "whenever 

less than a majority of white voters vote 

for the black candidate." But the 

district court, guided by the Senate 

report and in accordance with the experts 

for appellants and appellees, in fact 

defined racially polarized voting as the 

choice, and it allows white candidates to 
ignore the interests of the black com­
munity and still get elected. See United 
States v. Carolene Products Co.--;---1"04 U.S. 
1 4 4 , 1 52- 3 n. 4 ( 1 § ~ 8 ) ; ~or v • Treen , 57 4 
F. Supp. 325, 339 (E. D. La. 198~) (three 
judge court). 



- 72 -

extent to which black and white voters 

vote differently from each other in 

relation to the race of the candidates. 76 

The court focused not only on the 

existence but the degree of polarized 

voting. As articulated by the court, the 

relevant question is whether a substantial 

enough number of white citizens do not 

vote for black candidates, so that the 

polarization operates, under the election 

method in question, to diminish the 

opportunity of black citizens to elect 

candidates of their choice. JA 16-17, 43. 

76 Senate Report, 29; JA 40, n.29; JA 123. 
T. 1404. See also City of Rome v. United 
States, 446 u.s. 15G, 183-187 (1980), 
affirming 472 F. Supp. 221, 226 (D.D.C. 
1979) ("Racial bloc voting is a situation 
where, when candidates of different races 
are running for the same office, the 
voters will by and large vote for the 
candidate of their own race.)" Accord, 128 
Cong. Rec. 87120 (Sen. Dole)(daily ed. 
June 1 8 , 1 9 8 2 ) • 



- 73 -

This inquiry is plainly consistent with 

the statutory language of Section 2. 

A. Summary of the District Court's 
Fin~ings 

The District Court examined a number 

of factors in determining that voting was 

severely racially polarized. 

1. The court examined the percent­

age77of white and black voters who voted 

for the black candidates in each of 53 

primaries and general elections in which a 

black candidate had run during the three 

election years prior to the trial. JA 

43-48. The court found that, on the 

average, 81.7% of white voters did not 

77 Appellants conceded that the method used 
to assess the extent of racially polarized 
voting is standard in the literature and 
that the statistical analysis performed by 
appellees' expert was done accurately, JA 
131-2, 281. 



- 74 -

vote for any black candidate in the 

primary elections, and "approximately two 

thirds of white voters did not vote for 

black candidates in general elections even 

after the candidate had won the Democratic 

primary and . the only choice was to vote 

for a Republican or no one." JA 42. 

2. The district court determined how 

often the candidates of choice of white 

voters and of black voters were different. 

Although, in primaries, black voters 

ranked black candidates first or first and 

second, white voters almost always ranked 

them last or · next to the last. JA Ex. 

Vol. I Ex. 5-7. In general elections, 

white voters almost always ranked black 

candidates either last or next to last in 

the multi-candidate field except in 

heavily Democratic areas; in those latter, 

"white voters consistently ranked black 



- 75 -

candidates last among Democrats if not 

last or next to last among all candi-

dates." JA 42. If white voters as a 

group are selecting different candidates 

than black voters as a group, assuming 

black voters are in a minority, the 

polarization diminishes the chances that 

the black voters' candidate will be 

elected. JA 132-136. In fact, the court 

found that in all but two of the election 

contests, the black candidates who were 

the choice of black voters were ranked 

last or near last such that they lost 

among white voters. 78 
JA 42, n.31. 

3. The court considered statistical 

analyses of the degree of correlation 

between the race of voters and the race of 

candidates whom they supported. The race 

of the voter and the race of a candidate 

78 In describing this analysis the court 
used the term "substantively signifi­
cant". JA 41-2. 



- 76 -

were very closely correiated. 79 The court 

found that the probability of such 

correlations appearing by chance was less 

than 1 in 100,000. JA 41 and n.30. 

Appellants' expert agreed with this 

determination. JA 281. 

B. The Extent of Racial Polarization was 
~ignificant, Even wfiere Some' Blacks . 
Won -

In addition to their mischaracteriza-

tion of the court's analysis, appellants 

propose a novel standard for assessing the 

degree of polarized voting. Appellants 

contend that racial polarization of 

voting has no legal significance unless it 

79 Expert witnesses for appellants and 
appellees agreed that the correlation 
coefficient is the standard measure of 
whether black and white voters vote 
differently . from each other. JA 129, 
281. Correlations above an absolute value 
of .5 are relatively rare. The corre­
lations in this case had absolute values 
between • 7 and • 98, with most above • 9. JA 
41, n.30. 



- 77 -

always causes blacks to lose. 80 A. Br. 35, 

40. Under appellants' standard, a theory 

not adopted in any vote dilution case they 

cite, any minority electoral success 

precludes a finding of racially polarized 

voting and bars a section 2 violation, a 

result clearly contrary to the intent of 

Congress. See S. Rep. at 29, n.115 and 

pp. 50-64, supra. Appellees know of no 

80 The Solicitor General does not adopt 
appellants' proposed standard, but 
articulates the inquiry as whether "the 
impact of racial bloc voting in combina­
tion with the challenged procedure --here, 
multimember districts -- deprives black 
voters of equal access to the electoral 
process ••• " u.s. Br. 31-32. Assuming that 
the Solicitor General includes with "equal 
access to the electoral process", as the 
statutory language of section 2 does, an 
equal opportunity to elect candidates of 
black voters' choice, the Solicitor 
General does not disagree with the 
district court's conception of the 
question. The Solicitor General simply 
disagrees with the district court's 
finding of fact as to its answer. 



- 78 -

court which has adopted appellants' 

proposed standard in a section 2 case. 

Other courts have found polarized 

voting sufficient to support a violation 

of section 2, despite a finding of some 

electoral success. In McMillan v. 

Escambia County,748 F.2d 1037, 1043, 1045 

(11th Cir. 1984) (McMillan II), the court 

found racially polarized voting and a 

violation of section 2 despite some black 

electoral success, based on a finding that 

"a consistent majority of the whites who 

vote will consistently vote for the 

black's opponent." See also Major v. 

Treen, 574 F. Supp. at 339. 

In fact, in 65% of the election 

contests analyzed here in which the black 

candidate received substantial black 

support, the black candidate did lose 

because of racial polarization in voting. 



- 79 -

That is, he lost, even though he was the 

top choice of black voters, because of the 

paucity of support among white voters. 

Appellants' statement that "two thirds of 

all black candidates have been success­

ful", A. Br. 45, is misleading since it 

only counts black candidates who made it 

to the general elections and ignores the 

many black candidates who lost in the 

Democratic primaries. Furthermore, of 

white Democrats who made it to the general 

election, 100% were successful in 1982, 

and about 90% were successful in earlier 

election years. JA Ex. Vol. I Ex. 13. 

Appellants rely on Rogers v. Lodge, 

458 u.s. 613 (1982) and two post-Mobile 

lower court cases, all involving claims of 

discriminatory intent under the Fourteenth 

Amendment. We do not read the cited cases 

to hold that racial polarization is 

legally significant only if it uniformly 



- 80 -

causes electoral defeat. 81 But this Court 

need not consider, in the context of this 

case, whether appellants' bold assertion 

is correct . Assuming arguendo that proof 

of absolute exclusion may be necessary to 

raise an inference of discriminatory 

intent, it is not necessary to show that 

black citizens have "less opportunity" 

than do whites to elect candidates of 

their choice in violation of the results 

standard of section 2. 

81 The lower court in Rogers v. Lodge found 
racial bloc voting based upon an analysis 
that included an election in which a black 
had won a city council seat. Lodge v. 
Buxton, Civ. No. 176-55 (S.D. Ga. Oct. 
~6,1918) slip. op. at 7-8. In NAACP v. 
Gadsden Count~ School Board, 691 F. 2d 9?8 
[11th Cir. 1 82), the finding of uncon­
stitutional vote dilution was upheld 
despite the election of one black can­
didate to the school board, a level of 
electoral success similar to that present 
here in House District 21 and House 
District 36. 



- 81 -

C. Appellees Were not Re9uired to Prove 
that White Voters' Fa1lure to Vote 
for Bfack Candidates was Racially 
Motivated« 

Appellants contend that proof that 

white voters rarely or never vote for 

minority candidates does not establish the 

presence of polarized voting. Rather, they 

urge, a plaintiff must adduce probative 

evidence of the motives of the individual 

white voters at issue, and must establish 

that those voters cast their ballots with 

a conscious intention to discriminate 

against minority candidates because of the 

race of those candidates. 82 A. Br. 42-44. 

82 Appellants argue in particular that proof 
of motives of the electorate must take the 
form of a multivariate analysis. (App.Br. 
43-44). No such multivariate analysis was 
presented in White v. Regester or any of 
the other dilution cases to which Congress 
referred in adopting section 2. Although 
appellants now urge that evidence of a 
multivariate analysis is essential as a 
matter of law, no such contention was ever 
made to the district court. 



- 82 -

This proposed definition of polarized 

voting would incorporate into a dilution 

claim precisely the intent requirement 

which Congress overwhelmingly voted to 

remove from section 2. The legislative 

history of section 2 is replete with 

unqualified statements that no proof of 

discriminatory intent would be required in 

a sect ion 2 case, and Congress' reasons 

for objecting to the intent requirement in 

Bolden are equally applicable to the 

intent requirement now proposed by 

appellants. 83 

83 The reasons set out in the Senate Report 
for rejecting any intent requirement were 
reiterated by individual members of 
Congress. Senate Report 193 (additional 
views of Sen. Dole); 128 Cong. Rec. (daily 
ed. June 9, 1982) S6560-61 (Sen. Kennedy); 
128 Cong. Rec. (daily ed. June 15, 1982) 
S6779 (Sen. Specter); 128 Cong. Rec. 
(daily ed. June 17, 1982) S6931 (Sen. 
DeConcini); S6943 (Sen. Mathias); S6959 
(Sen. Mathias); 12~ Cong. Rec. (daily ed. 
June 18, 1982) S7109 (Sen. Tsongas); S7112 
(Sen. Riegle); S7138 (Sen. Robert Byrd). 



- 83 -

Congress opposed any intent require­

ment, first, because it believed that the 

very litigation of such issues would 

inevitably stir up racial animosities, 

insisting that inquiries into racial 

motives "can only be divisive." Senate 

Report 36. Congress contemplated that 

under the sect ion 2 results test the 

courts would not be required to "brand 

individuals as racist." Id. The divisive 

effect of litigation would be infinitely 

gceater if a plaintiff were required to 

prove and a federal court were to hold 

that the entire white citizenry of a 

community had acted with racial motives. 

Second, Congress cejected the intent 

test becauSe it created "an inordinately 

difficult burden for plaintiffs in most 

cases." (S.Rep. 36) The Senate Committee 

expressed particular doubts about whether 



- 84 -

it might be legally impossible to inquire 

into the motives of individual voters, 

id., and referred to a then recent Fifth 

Circuit decision holding that the First 

Amendment forbade any judicial inquiry 

into why a specific voter had voted in a 

particular 84 way. Congress thought it 

unreasonable to require plaintiffs to 

establish the motives of local officials; 

establishing the motives of thousands of 

white voters, none of whom keep any 

records of why they voted, and all of whom 

are constitutionally immune from any 

inquiry into their actions or motivations 

in casting their ballots, 85 would clearly 

84 l~· 36 n.135, citing ~irksey v. City of 
Jackson, 699 F.2d 317 (Sth Cir. 1982), 
9Iari t~int Kirksey v. City of Jackson, 663 
F.2d 6 9" 5th ~ir. E~81 ~ o 

85 See also Anderson v. Mills, 664 F.2d 600, 
6Q8-9 (6th Cir. ,9~1); South Alameda 
Spanish S~eaking_Or~. v.Cit~ or Un1on 
S}~y, 424.2d 2~1, 2 S .<9Eh C1r~ 1970); 
Un1ted States v. Execut1ve Committee of 
Democratic Party or Greene County, Ala., 



- 85 -

be an infinitely more difficult task. 86 

Counsel for appellants contend that 

the plaintiffs in a section 2 action 

should be required to establish the 

motives of white voters by means of 

statistics, but at trial appellants' 

statistician conceded it would be impos­

sible to do so. 87 

254 F. Supp. 543, 546 (S.D. Ala. 1966). 

86 The courts have consistently entered 
findings of racially polarized voting 
without imposing the additional burdens 
now urged by appellants. See Mississippi 
Reeublican Executive Commfttee v. BroO'K"S;' 

u.s. , 105 s.ct. 416 (1984) 
(summary artlrmance of district court 
using correlation test). See also Rogers 
v. Lodge, suera, ·458 U.S. at ~23; Mare3lo 
County, su~ra, 731 F.2d at 156rn. ; 
Perkins v.ity of West Helena, 675 F.2d 
201, 213 (8th Cir. 1982), aff 1d mem. 459 
U~S. 801 (1982); City of Port Arfhur v. 
U n i ted States , 517 F • S u pp • 9 8 7 , 1 60 7 
n.13~ (D.D.c:-1981), aff'd 459 u.s. 159 
(1982). 

87 Appellants' expert testified that many of 
the variables which he considers im­
portant, such as a candidate's skills or 
positions on the issues, are not quanti­
fiable. He did not suggest how such an 
analysis could be performed, and he 



- 86 -

Third, Congress regarded the presence 

or absence of a discriminatory motive as 

largely irrelevant to the problem with 

which sect ion 2 was concerned. Senate 

Report 36. The motives of white voters 

are equally beside the point. The central 

issue in a dilution case is whether, not 

why, minority voters lack an equal 

opportunity to elect candidates of their 

choice. 

In appellant's view, polarized voting 

occurs only when whites vote against black 

candidates because of their race, but not 

when whites consistently vote against 

black candidates because those candidates 

conceded he had never performed one. T. 
1 4 2 0, 1460, JA 283. Even McCleske~ v. 
z a n t , 58 0 F • S u pp • 3 3 8 ( N • D. da • 1 9 4 ) , 
a'£T'Td, 753 F.2d 877 (5th Cir. 1985), 
cert. pendif, No. 84- , on which 
appe!lants re y, holds that such regres­
sion analyses are incapable of demon­
strating racial intent where, as here, 
"qualitative" nonquant if iable differences 
are involved. 580 F. Supp. at 372. 



- 87 -

are not ~ble to purchase expensive media 

campaigns or obtain endorsements from 

local newspapers. The reasons appellants 

present as a legitimate basis for whites 

not voting for black candidates are almost 

invariably race related. In the instant 

case, for example, the inability of black 

candidates to raise large campaign -

contributions had its roots in the 

discrimination that has impoverished most 

of the black community. An election system 

in which black candidates cannot win 

because their supporters are poor, or 

because local newspapers only endorse 

whites, or because of white hostility to 

any candidate favoring enforcement of 

civil rights laws, is not a system in 

which blacks enjoy an equal opportunity to 

participate in the political process or 

elect candidates of their choice. 88 

88 Moreover, to require a district court to 



- 88 -

D. The District Court's Fi11ding of 
the Extent or Raciallv Polarized 
Vot1ng lS not Clearly Erroneous. 

Based on the analysis summarized in 

Part III A, supra, the trial judges found 

"that in each of the challenged districts 

racial polarization in voting exists to a 

substantial or severe degree, and that in 

each district it presently operates to 

minimize the voting strength of black 

voters." JA 48. 

The Solicitor contends that the dis-

trict court ignored possible variations in 

the extent of polarized voting, asserting 

. determine whi~ ostensible reasons- are 
legitimate and which are race related 
would be exactly the type of subjective, 
motivational analysis Congress sought to 
avoid. If such an analysis were relevant, 
even: the Solicitor General agrees that it 
is not necessary in order to establish a 
prima facie case, but it is the defen­
dants' burden to prove it on rebuttal. 
u.s. Br. 30, n.57. Accord, Jones v. 
Lubbock, 730 F.2d 233, 236 (Sth Cir. 
1984)(Higginbotham concurring). No such 
evidence was offered here. 



- 89 -

the district court adopted a de­
finition of racial bloc voting 
under which racial polarization 
is "substantively significant" 
or "severe" whenever "the 
r e s u 1 t s o f t h e i nd i v i d u a 1 
election would have been 
different depending upon whether 
it had been held among only the 
white voters or only the black 
voters in the election. u.s. Br. 
I, 29. 

The Solicitor argues that under this 

definition elections in which only 49% of 

whites voted for a black would be held to 

be "severely racially polarized". u.s. 

Br. 2 9. (Emphasis in original). This 

argument rests on a misrepresentation of 

the language of the opinion below. The 

quoted reference to differences in the 

preferences of black and white voters 

appears on page JA 41 of the opinion, 

where the district court correctly notes 

the pcesence of such differences in this 

case. The term "severe" does not appear in 

that passage at all, but is used on the 



- 90 -

next page in a separate paragraph to 

describe elections in which 81.7% of white 

voters declined to vote for any black 

candidate. JA 42. The opinion of the 

district court clearly distinguishes the 

presence of any differences between black 

and white voters from a case in which 

whites overwhelmingly opposed the candi-

date preferred by black voters, and 

equally clearly characterizes only the 

latter as "severe." 

The primary evidentiary issue 

regarding polarized voting that must be 

resolved in a section 2 dilution case is 

whether the degree of polarization was 

sufficiently severe as to materially 

impair the ability of minority voters to 

1 t d 'd f th . h . 89 e ec can 1 ates o e1r c o1ce. In 

89 While appellants do not challenge the 
method appellees' expert used to analyze 
the election returns in general, JA 131-2, 
281, appellants claim that appellees' 
regression analysis is flawed by what 



- 91 -

concludi~g that such impairment had been 

shown, the court relied on the extensive 

fact findings noted above, including the 

fact on average 81.7% of white voters do 

not vote for any black c and ida t e i n a 

primary election. The polarization was 

most severe in House District 8, where an 

average of 92.7% of white voters do not 

vote for any black candidate in a primary, 

JA 47-48; the district court correctly 

they labeled the "ecological fallacy." 
They assert that instead of using turnout 
figures, appellees' expert used voter 
registration figures. A. Br. 41 ·. Not 
only was this argument made to the 
district court and rejected, JA 40, n.29, 
but also it is not accurate. Appellees' 
expert, Dr. Grofman, did have turnout 
figures for each precinct, and he used a 
regression analysis to calculate the 
turnout figures by race. Px 1 2 at pp. 
3-8. In fact, appellants' expert admit ted 
that he did not know what method Dr. 
Grofman used to calculate turnout, JA 
279-80, and he, therefore, could not 
express an opinion about the accuracy of 
the method. 



- 92 -

noted that in that district it was 

mathematically impossible for a black 

candidate ever to be elected. JA 48. 

In the other districts, the degree of 

polarization was sufficiently severe to be 

a substantial impediment, although not 

necessarily . an absolute bar, to the . 

election of minority candidates. The 

average portion of white voters willing to 

support a black candidate in a primary was 

1 8%. The proportion of voters that was 

white ranged from 70.5% to 84.9%. JA 21. 

In each of the disputed districts the 

number of white voters who in primaries do 

not support the black candidate favored by 

the black community constituted a majority 

of the entire electorate. 90 Under those 

90 Given the small percentage of black 
voters, the failure of this number of 
whites to vote for black candidates 
presented a substantial barrier. The 
lower the black population of the dis­
trict, the more white voters it takes 
voting for the black candidate to make it 



- 93 -

circumstances, the election of candidates 

pre fer red by black voters, wh i 1 e not 

mathematically impossible, is obviously 

extremely difficult. 

Appellants attack the lower court's 

finding of substantial polarized voting by 

selectively citing the record. Of the 53 

elections discussed by the trial court, 

possible for him to win. Moreover, no 
evidence was presented to show that the 
extent of racial polarization was decl in­
ing. JA 137, 140. 

Here, while there are a large number of 
black citizens, because they are submerged 
into such large multimember districts, 
they are a small percentage of the total 
electorate. For example, in House 
District 36 (Mecklenburg County), there 
are 107,006 black residents, Px 4(b), JA 
Ex. Vol. II, more than enough for two 
whole House Districts, id., but because 
they are submerged into-an eight member 
district, they are only 26.5% of the 
population. Because the percentage of the 
registered voters in each of the districts 
which is black is relatively low, ranging 
from 15% to 29%, it takes little polar­
ization to impede materially the ability 
of the black community to elect candidates 
of its choice. 



- 94 -

appellants refer only to 8. A. Br. 36-38. 

I n most instances, appellants emphasize 

the election at which white support for a 

black candidate was the highest of any 

1 . . h d' . 91 h h' h e ect1on 1n t at 1str1ct. T e 1g est 

proportion of white support for minority 

candidates cited by appellants were in the 

1982 Durham County general elections and 

the 1982 Mecklenburg County primary. (A. 

Br. 36-37}, but there were no Republican 

candidates in the 1982 general election in 

Durham County, and in the 1982 Mecklenburg 

County primary there were only seven white 

candidates for eight positions in the 

primary. JA 46, 44. Thus the white votes 

of 47% and 50% in those two races repre-

sent the number of whites willing to vote 

for an unopposed black instead of not 

voting at all, rather than the proportion 

91 This is true of examples (a}(b)(h}(i} and 
(j} in Appellants' Brief. See JA 152. 



- 95 -

of whites willing to support in a con-

tested election a minority candidate 

favored by the minority community. 

IV. THE DISTRICT COURT FINDING OF UNEQUAL 
ELECTORAL OPPORTUNITY WAS NOT CLEARLY 
ERRONEOUS 

A. The Clearly Erroneous Rule Applies 

Appellants contend that, even if the 

district court was applying the correct 

legal standard, the court's subsidiary 

factual findings, as well as its ultimate 

finding that minority voters do not enjoy 

an equal opportunity to elect candidates 

of their choice in the disputed districts, 

were mistaken. Appellants correctly 

describe these contentions as presenting 

a "factual question." 92 The lower courts 

92 A. Br. 25: see also id. at 35 ("no matter 
how one weights ana-weighs the evidence 
presented, it does not add up to a denial 
of equa 1 access") , 26 (disputed trial 
court findings made "in spite of the 
facts"), 29 (" [n]othing in the rec6rd •.. 
supports" a disputed finding), 30 n.12 



- 96 -

have consistently held that a finding 

under section 2 of unequal political 

opportunity is a factual finding subject 

93 to the Rule 52 "clearly erroneous" rule. 

The courts of appeal c0nsidering constitu-

tional vote dilution claims prior to 

Bolden also applied the clearly erroneous 

rule to findings of the trial court. 94 

(testimony relied on by the trial court 
"was simply not credible"), 30 (plaintiffs 
"failed to prove" a subsidiary fact). 

93 Coll-ins v. City of Norfolk, 768 F. 2d 572, 
573 (4th Cir., Ju!y 22, 1985) (slip 
opinion, p. 4); McCarty v. Henson, 749 
F.2d 1134, 1135 (5th C1r. 1!HJ4); Jones v. 
City of Lubbock, 727 F.2d 364, 371, 380 
(Sth Cir. f984); Velasquez v. Cit~ of 
Abilene, 725 F.2d 1017, 1021 (5thlr. 
1984); United States v. Marengo County 
Com'n, ?31 F.2d 1546, 1552 n1th Cir. 
1984); Buchanan v. Citl of Jackson, 708 
F.2d 1066, .. 1070 (6th C1r. 1§"83). 

94 Parnell v. Ra2idas Parish School Bd., 563 
F.2a 180, 184-5 (Stfi Cfr. 1977); Hendrix 
v. Joseph, 559 F.2d 1265, 1268 (5tfi Cir. 
1977); McGill v. GadsdenCount,Comission, 
535 F.2d 277, 280 (5th Cir. 19 6); Gilbert 
v. Sterrett, 508 F.2d 1389., 1393 (5th 
Cir. 1975)TZimmer v. McKeithen, 485 F.4d 
at 1302 n.8 (majority opinion), 1309-10 
(Coleman, J., dissenting), 1314 (Clark, 



- 97 -

Until recently the United States also 

maintained, that absent any failure to 

apprehend and apply the correct legal 

standards, a finding of unequal electoral 

opportunity under section 2 was a 

factual finding subject to Rule 52(a), 
. . 95 

F.R. Clv. P. 

The Solicitor General now asserts, 

however, that Rule 52 does not apply to a 

finding of vote dilution under section 2. 

The Solicitor acknowledges that the 

determination of a section 2 claim 

"requires a careful analysis of the 

challenged electoral process, as informed 

by its actual operation." u.s~ .Br. II, 

18. But, he urges that the ultimate 

finding of the trial court based on that 

J • , d iss e n t i ng ) • 

95 See Brief for the United States, United 
states v. Dallas County Commission, 11 tFi 
Cir, (No. 92-1362) (dated March 27, 1983) 
p. 26. 



- 98 -

analysis may be reversed whenever an 

appellate court views the facts dif-

ferently. 

The arguments advanced by the 

Solicitor do not justify any such depar-

ture from the principles of Anderson v. 

City of Bessemer City, 84 L.Ed.2d 518 

(1985). A number of the cases relied on 

by the Solicitor General involved simple 

matters of statutory construction, 96or the 

meaning of a constitutional right where 

h f t . d. t 97 t e ac s were not 1n 1spu e. 

In Bose Corp. v. Consumers Union, 80 

L.Ed.2d 502 (1984) this Court declined . to 

apply Rule 52, but it did so only because 

the Constitution requires appellate courts 

in First Amendment cases to undertake "an 

96 Metro~litan Ed i~on Co. v. PANE, 460 u.s. 
~ ( 9B3); Harpe r &. Row, Publ i sher v. 
Nation, 85 L.Ed.2d 5SS, 66IT-02 (19SS). 

97 Strickland v. Washi~qton, 80 L.Ed.2d 674 
(19S4). 



- 99 -

independent examination of the whole 

record." 80 L.Ed.2d at 515-26. The 

Solicitor suggests that the special 

standard of appellate review in Bose 

should be extended to any statutory claim 

in which "the stakes ••• are too great to 

entrust them finally to the judgment of 

the trier of fact." u.s. Br. II 19. But 

this Court has already applied Rule 52 to 

Fourteenth Amendment claims of purposeful 

discrimination in voting, 98 to claims of 

discriminatory effect under section 5 of 

the Voting Rights Act, 99and to claims 

arising under Title VII of the 1964 Civil 

Rights Act. 100 The "stakes" in each of these 

areas of the law are surely as great as 

98 Hunter v. Underwood, 85 L.Ed.2d 222, 229 
(1~85); Rogers v. Lodge, supra, at 622-23. 

99 City of Rome v. United States, 446 u.s. 
156, 18j (1980). 

1 00 Anderson v. City of Bessemer City, supra; 



- 100 -

under Sect ion 2. Cf. Alyeska Pipeline 

Service v. Wilderness Society, 421 U.S. 

240, 263-64 ( 1975). As this Court emph-

asized in White ~· Regester, a district 

court called upon to resolve a vote 

dilution claim occupies "its own special 

vantage point" from which to make an 

"intensely local appraisal" of the 

existence of racial vote dilution. 101 412 

101 The application of Rule 52 is particu­
larly appropriate in a case such as this 
where the appellants' brief is replete 
with controverted or clearly inaccurate 
factual assertions. For example, appel­
lants state without citation, "In Halifax, 
several blacks have been elected to the 
County Commission and the City Council of 
Roanoke Rapids." A. Br. 11. This is 
false. No black had ever been elected to 
either body. JA 233. Appellants state, 
"The Chair of the Mecklenburg County 
Democratic Executive Committee at the time 
of trial and his immediate predecessor are 
also black. Stip. 126 " A. Br. 8. 
Stipulation 126 actually says, "The 
immediate Past Chairman of the Mecklenberg 
CountyDemocraticExecutiveCommittee, for 
the term from 1981 through May 1983, was 
Robert Davis, who is black. Davis is the 
onll black person ever to hold that 
pos1tion." JA 105. Appellants state that 
"If Forsyth County were divided into 



- 101 -

u.s. at 769. 

From "its own special vantage point" 

the court here made detailed and extensive 

fact findings on virtually all the factors 

the Senate Report thought probative of a 

section 2 violation. The findings of the 

district court involved six distinct 

multi-member districts, the circumstances 

of which were of course not precisely 

identical. Appellants neither contend that 

these differences are of any importance or 

suggest that the trial court's ultimate 

finding of unequal electoral opportunity 

under the totality of circumstances is any 

single member House districts, one 
district with a population over 65% black 
could be formed. Stip. 129." App. Br. 9. 
Stipulation 129 in fact says that two 
majority black districts could be formed. 
JA 105. The omission is particularly 
deceptive since the remedy proposed by 
appellants, which was accepted unchanged 
by the district court, contained two 
districts in Forsyth County which are 
majority black in voter registration. 



- 102 -

less justifiable in any one district than 

in the others. Rather, appellants advance 

objections which they contend are equally 

applicable to all the districts at issue. 

Appellants attack the district court's 

ultimate finding by generally challenging 

each of the subsidiary findings on which 

it is based. A. Br. 25-34. 

B. Evidence of Prior Voting 
D1scrimination 

The district court, after describing 

the long North Carolina history of 

official discrimination intended to 

prevent blacks from registering to vote, 

as · well as some relatively recent efforts 

to counteract the continuing effects of 

that discrimination, concluded: 

The present condition ••.. is 
that, on a state wide basis, 
black voter registration remains 
depressed relative to that of 
the white majority, in part at 
least because of the long period 



- 103 -

o f o f f i c i a l s t a t e d e n i a 1 a nd 
chilling of black citizens' 
registration efforts. This 
statewide depression of black 
voter registration levels is 
generally replicated in the 
areas of the challenged dis­
tricts, and in each is traceable 
in part at least to the histori­
cal statewide pattern of offi­
cial discrimination here found 
to have existed. JA 27-28. 

Such disparities in black and white 

registration, rooted in past and present 

discrimination, is one of the factors 

which Congress recognized puts minority 

votes at a comparative disadvantage in 

predominantly white multi-member dis-

tricts. Senate Report 28. 

Appellants concede, as they must, 

that it was for decades the avowed policy 

of the state to prevent blacks from 

registering to vote. A. Br. 25. The 

district court noted, for example, that in 

1900 the state adopted a literacy test for 

the avowed purpose of disfranchising black 



t 

- 104 -

voters, and that that test remained in use 

at least until 1970. JA 25. Appellants 

argue, as they did at trial, that all 

effects of these admitted discriminatory 

registration practices were entirely 

eliminated because recent state efforts to 

eliminate those effects "have been so 

successful." A. Br. 27. The district 

court, howeve·r, concluded that recent 

registration efforts had not been suffi­

cient to remove "the disparity in regis­

tration which survives as a legacy of the 

long period of direct denial and chilling 

by the state of registration by black 

citizens" JA 27. 

The district court's finding is amply 

supported by the record below. In every 

county involved in this litigation the 

white registration rate exceeds that of 

blacks, and in many of those counties the 

differential is far greater than the 



- 105 -

. d d. . 102 d 22 statew1 e 1spar1ty. I • at n. • Even 

appellants' witnesses acknowledged that 

this disparity was unacceptably great. Px 

40; T.575-77, 1357; JA 199. There was 

direct testimony that the history of 

mistreatment of blacks continued to deter 

blacks from seeking to register. JA 175, 

188-89, 211-12, 220-25, 229, 242-43. 

Appellants contend that in the last 

few years the state board of elections 

has taken steps to register blacks who 

might have been rejected or deterred by 

past practices. A. Br. 26. But the state's 

involvement did not begin until 1981, and 

the record was replete with evidence that, 

long after the literacy test ceased to be 

102 In 1971, the year after use of the 
discriminatory literacy test ended, 60.6% 
of whites were registered, compared to 
44.4% of qualified blacks. As of 1982 
that registration gap had only been 
slightly narrowed, with 66.7% of whites 
and 52.7% of blacks registered. JA 26. 



- 106 -

used, local white election officials at 

the county level pursued practices which 

severely limited the times and places of 

registration and thus perpetuated the 

effects of past discriminatory ~ractices •. 103 

Under these circumstances the district 

court was clearly justified in finding 

that minority registration levels remained 

depressed because of .past discriminatory 

practices. 

103 In a number of. instances registration was 
restricted to the county courthouse, 
locations that especially burdened the 
large numbers of blacks who did not own 
cars. JA 220-22, 229; JA Ex. Vol. I Ex. 
37-52. Local election officials severely 
limited the activities of voluntary or 
part-time registrars, only allowing them, 
for example, to register new voters 
outside his or her own precinct ~hen the 
state board of elections required them to 
do so. T. 525, 553-55; JA 212, 222-24. 



- 107 -

C. Evidence of Economic and Educational 
Disadvantages ' 

The district court concluded that 

minority voters were substantially impeded 

in their efforts to elect candidates of 

their choice ~y the continuing effects of 

the pervasive discrimination that af-

fected, a nd to a s i g n i f i cant degree 

continues to afeect, every aspect of their 

lives. JA 28-31. 

The court concluded that past 

discrimination had led to a variety of 

. 1 d . d. . . 1 04 s h soc1a an econom1c 1spar1t1es. uc 

104 The mean income of black citizens was only 
64.9% that of white citizens. Approxim­
ately 30% of all blacks have incomes below 
the poverty level, compared to only 10% of 
whites; conversely, the proportion of 
whites earning over $20,000 a year is 
twice that of blacks. JA 30. Since 
significantdesegregationdid not occur in 
North Carolina until the early 1970's, 
most black adults attended schools that 
were both segregated and qualitatively 
inferior for all or most of their primary 
and secondary education. JA 29. See 
Gaston County v United States, 395 U:s7 



- 108 -

social and economic disparities were cited 

by Congress as a major cause of unequal 

opportunity in multi-member districts. 

105 . . s. Rep. 29. Appellees adduced ev1aence 

documenting these disparities in each of 

285, 292-96 ( 1969). Residential housing 
is rig idly segregated throughout the 
state, JA 29, and is almost total in each 
of the challenged districts. T. 268, 648, 
139: JA 176-7, 201-2, 219, 240, 263-4: JA 
Ex. Vol. II, Px 3a-8a. 

105 Congress deemed evidence of substantial 
social and economic disparities sufficient 
by itself to demonstrate that blacks would 
be at a significant disadvantage in a 
majority white district. The Senate 
Report directs the courts to presume, 
where those disparities are present, that 
"disproportionate education, employment, 
income level and living conditions arising 
from past discrimination tend to depress 
minority political participation ••• " Id. 
2 9 n. 114. The propriety of such an 
inference was an established part of the 
pre-Bolden case law expressly referred to 
by Congress, and is an established part of 
the post-amendment section 2 case law as 
well. Uniteq States v. Marengo County, 
731 F.2d at 1567-Ga. · §ee also McMillan 
v. Escambia County, 748 F. 2d at 1044: 
United States v. Dallas County, 739 F.2d 
152§, 1537 (11th cir. 1984). 



- 109 -

the challenged districts 1 06and appellants do 

not dispute their existence. 

Appellants attack the district 

court's fi~ding that these undisputed 

disparities substantially impeded the 

ability of blacks to participate effec-

tively in the political process, asserting 

that "plaintiffs failed to prove that 

political participation on the part of 

blacks in North Carolina was ••• in any 

way hindered." A. Br. 30. But appellees 

in fact introduced the evidence which 

106 Mecklenburg County: T. 243, 436; JA Ex. 
Vol. I Ex. 37; JA 77-89. 

Durham County: T. 647-51, 686; JA Ex. 
Vol. I Ex. 39; JA 77-89. 

Forsyth County: T. 595-96, 611, 734; JA 
Ex. Vol. I Ex. 38; Hauser deposition 35, 
36, 38 

Wake County: T. 130, 1216-18; JA Ex. Vol. 
I Ex. 40; JA 77-89. 

House District 8: T. 701-03, 740-41,742-
44; JA Ex. Vol. I Ex. 41-43; JA 77-89. 

' 

• 



- 110 -

appellants assert was missing, documenting 

in detail precisely how the admitted 

disparities impeded the electoral effec-

tiveness of black voters. That evidence 

demonstrated that the cost of campaigns 

was substantially greater in large 

multi-member districts, and that compara-

t i ve 1 y poor black voters were less able 

than whites to provide the financial 

contributions necessary for a successful 

campaign. 107 Minority voters were far less 

likely than whites to own or have access 

to a car, without which it was often 

difficult or impossible to reach polling 

107 T. 130; JA 177-78, 1.80-1, 235-6; JA Ex. 
Vol. I Ex. 14-17; Hauser Deposition, 35. 
There was also more general testimony 
regarding the net impact of these dispari­
ties. JA 168, 213-14; 236-7. See David 
v. Garrison, 553 F.2d 923, 927,~9 (Sth 
Cir. 1977); Dove v. Moore, 539 F.2d 1152, 
1154 n.3 (8thClr. 1~); Hendrick v. 
Walder, 527 F.2d 44, 50 (7th C1r. 197S). 



- 111 -

1 
. . . 108 . . p aces or reg1strat1on s1tes. M1nor1ty 

candidates, living in racially segregated 

neighborhoods and a racially segregated 

society, had far less opportunity than 

white candidates to gain exposure and 

develop support among the majority of the 

voters who were white. 109 

Appellants urge that this evidence 

was rebutted by the fact that eight 

witnesses called by appellees were pol~ti-

cally active blacks. A. Br. 29-30. But 

the issue in a section 2 dilution proceed-

ing is not whether any blacks are partici-

pants in any way in the political process, 

108 T. 634, 686; JA 77; JA Ex. Vol. I Ex. 
37-52. The district court noted that 
25.1% of . all black families, compared to 
7.3% of white families, have no private 
vehicle available for transportation. JA 
30. 

109 T.782; JA 176-81, 213-14, 239. 



- 112 -

but whether those who participate have an 

equal opportunity to elect candidates of 

their choice. The mere fact that eight or 

even more blacks s _imply participate in the 

electoral process does not, by itself, 

support any particular conclusion regard-

ing the existence of such equal opportu­

nity. In this case the instances cited 

by appellants as the best examples of the 

degree to which the political process is 

open to blacks actually tend to support 

the trial court's conclusions to the 

contrary. All the specific political 

organization~ which appellants insist 

blacks are able to participate in are 

either civil rights or blac~ organiza-

. . 110 1 f h . d' 'd . d ttons; on y two o t e 1n 1v1 uals ctte 

110 The organizations refered to by appellants 
are the Nash County NAACP, the Mecklenburg 
County Black Caucus, the Second Congres­
sional District Black Caucus, the Durham 
Committee on the Affairs of Black People, 
the Wilson Committee on the Affairs of 
Black People, the Raleigh-Wake Citizens 



- 113 -

by appellants held elective office, and 

both positions were chosen in majority 

bl k . 1 b d . . 1 11 ac s1ng e mem er 1str1cts. 

D. Ev i dence of Racial Appeals by White 
Candidates 

The district court concluded that the 

ability of minority voters to elect 

candidates of their choice was signifi-

cantly impaired by a statewide history of 

white candidates urging white voters to 

vote against black candidates or against 

white candidates supported by black 

voters: 

[R]acial appeals in North 
Carolina political campaigns 
have for the past thirty years 
been widespread and persistent 

[T]he historic use of 
racial appeals in polit i ca l 
campaigns in North Carolina 
persists to the present time and 

Association, the Black Women's Political 
Caucus, and the Wake County Democratic 
Black Caucus. A. Br. 11-12, 30. 

111 JA 108, Stip. 143; JA 201, 237. 



- 114-

its effect is presently to 
lessen to some degree the oppor­
tunity of black citizens to 
participate effectively in the 
political process and to elect 
candidates of their choice. 
JA 34. 

Congress noted that the use of such racial 

appeals to white voters might make it 

particularly difficult for black candi-

dates to be elected from majority white 

districts. Senate Report 29. The noxious 

effects of such appeals are not limited to 

the particular election in which they are 

made; white voters, once persuaded to vote 

against a candidate because of his or her 

race or the race of his or her stipporters, 

may well vote in a similar manner in 

subsequent races. JA 34. 112 

112 "The contents of these materials reveal an 
unmistakable intention by their dis­
seminators to exploit existing fears and 
prejudices and to create new fears and 
prejudices" toward black political 
participation. Id. According to a black 
witness at trral, one of the biggest 
obstacles to black candidates is "con-



- 11 5 -

Appellants object that, of the six 

elections referred to by the district 

court as involving racial appeals, only 

two occurred within the last 15 years. A. 

Br. 3 2a. But these particular elections 

were not cited by the trial court as the 

sble instances of racial appeals. Rather, 

those six elections were listed as the 

most blatant examples, JA 34, arid the 

opinion added that "[n]umerous other 

examples of ••• racial appeals in a great 

number of local and statewide elections 

abound in the record." Id. Among 

the additional instances of racial appeals 

documented in the record referred to by 

the district court are elections in 

1976, 113 1980, 114and 1982. 115 

vincing the white voter that there is 
nothing to fear from having blacks serve 
in elective office." JA 179. 

113 T. 330-38, 390-91; Px 44. 

114T. 356-358. 



- 116-

Appellants also urge that the 

presence of racial appeals cannot he 

proved merely by evidence as to the 

content of the advertisements or litera-

ture used by white candidates; rather, 

they assert, some form of in depth public 

opinion poll must be conducted to demon-

strate what meaning white voters acknowl-

edge attaching to the racist. materials 

u sed by w h i t e c and ida t e s • A • B r • 3 1 -3 2 • 

Public opinion polls are not, however, the 

ordinary method of establishing the 

meaning of disputed documents; indeed, if 

racial appeals have been effective, the 

white voters to whom those appeals were 

addressed are unlikely to discuss the 

matter with complete candor. Local 

federal judges, with personal knowledge of 

115 T. 354, 357-69; JA 164-67; ;JA Ex. Vol. I 
Ex. 23-26, 36. 



- 117 -

the English language and the culture in 

which they live, are entirely competent to 

comprehend the meaning of the spoken and 

wr: it ten word in a wide variety of con­

texts, including political appeals. No 

public opinion poll is necessary to 

understand the significance of appeals 

such as "White People Wake Up", T. 245-46: 

JA Ex. Vol. I Ex. 21, or to realize why, 

although typically unwilling to provide 

free publicity to an opponent, a candidate 

would publicize a photograph of his 

opponent meeting with a black leader. T. 

356-58: JA 166-67; JA Ex. Vol. I Ex. 36. 

Indeed, these judges, all North Carolina 

natives conversant with local social and 

political realities, wer:e able to deter­

mine that recent racial appeals, while at 

times "less gross and virulent," JA 33, 

"pick up on the same obvious themes": 

"black domination" over "moderate" white 



- 118 -

candidates and the threat of "negro rule" 

or "black power" by blacks "bloc" voting. 

Id. 11 6 

E. Evidence of Polarized Voting 

The sufficiency of the evidence 

supporting the district court's finding of 

polarized voting is set out at pp. 88-95, 

supra • 

F. The Majority Vote Requirement 

The district court found that the 

majority runoff requirement impaired the 

ability of blacks to elect candidates of 

their choice from the disputed districts. 

JA 31-32. Although no black candidate 

seeking election to one of the at-large 

116 For example, using a frequent pun for 
black, a candidate in 1982 in Durham 
denounced his black opponent for "bus­
sing" [sic] his "block" vote to the polls. 
JA Ex. Vol. I Ex. 23-26. 



- 119 -

seats has ever been forced into a runoff 

because of this rule, A. Br. 27, the issue 

at trial was not whether the runoff rule 

had led directly to the defeat of black 

legislative candidates, but whether that 

rule indirectly interfered with the 

ability of minority voters to elect 

candidates of their choice. The majority 

vote requirement has prevented black 

citizens from being elected to statewide, 

congressional, and local level positions, 

T. 9 58-9 59 , 9 6 7, J A 2 0 3-4 ; Ox 4 8, p. 2 0. 

The exclusion of blacks from these offices 

has operated indirectly to interfere with 

the ability of blacks to win legislative 



- 120 -

elections. 117 The court's findings have a 

substantial basis in the record and 

corroborate Congress' concern that in vote 

dilution cases, majority vote requirements 

are "typical factors" which "may enhance 

the opportunity for discrimination against 

the minority group." Senate Report at 29. 118 

117 Because of the effect of the runoff 
requirement in state and local offices, 
black voters were deprived of an oppor­
tunity to prepare for legislative elec­
tions by winning local office, of the 
possible assistance of minority of­
ficials in higher office,and of a pool of 
experienced minority campaign workers. T. 
142, 192, 960, 967; JA 175-77, 179-80. 

118 This Court has also recognized the 
discriminatory potential of runoff 
requirements. See, e.g., City of Port 
Arthur v. Uniteastates, 4~9 u.s. 159 
(199~); Citt of Rome v. United States, 
446 u.s. 15 , 19j-94 (1980). 



- 1 21 - -

G. Evidence Regarding Electoral Success 
of Minority Candidates 

Having identified a number of specific 

aspects of the challenged at-large systems 

which interfered with the ability of 

blacks to participate in the political 

process or elect candidates of their 

choice, the district court examined as 

well actual election outcomes to ascertain 

the net impact of those practices. The 

court concluded: 

[T]he success that has been 
achieved by black candidates to 
date is, standing alone, too 
minimal in total numbers and too 
recent in relation to the long 
history of complete denial of 
any elective opportunities to 
compel or even to arguably 
support an ultimate finding that 
a black candidate's race is no 
1 o ng e r a s i g n i fica n t adverse 
factor in the political pro­
cesses of the state -- either 
generally or specifically in the 
areas of the challenged dis­
tricts. JA 39-40. 



- 122 -

Much of the argument advanced by both 

appellants and the Solicitor General is an 

attack on this factual finding. 

As the facts stood in 

1981, when this action was 

correctness of this finding 

September, 

filed, the 

could not 

seriously have been disputed. Prior to 

1972 no black candidate had ever been 

elected from any of the six disputed 

multi-member districts. From 1972-1980 no 

black representatives served in at least 

three of the districts~ far from having, 

as the Solicitor suggests, a level of 

representation comparable to their 

proportion of the population, at any given 

point in time, prior to 1982 more than 

two-thirds of the black voters had no 

elected black representatives at all. In 

six of the disputed districts, with an 

average black population of well over 25%, 

a total of 30 legislators were elected at 



- 123 -

large. Prior to 1982 no more than two or 

three black candidates were successful in 

any election year. 119 

Appellants rely solely on the results 

of the 1982 elections in attacking the 

findings of the district court. The 

outcome of the 1982 elections, held some 

14 months after the filing of this action; 

were strikingly different than past 

elections. Although in 1980 only two 

districts had elected black candidates, 

four of the districts did so in 1982. For 

the first time in North Carolina history 

two blacks were elected simultaneously 

from the same multi-member legislative 

district, resulting in five black legis­

lators. 120 

119 Statewide, the number of black elected 
officials remains quite low, and has not 
increased significantly since 1975. JA 
35; JA Ex. Vol. I Ex. 22. 

1 20 Although appellees state that seven blacks 
were elected in 1982, two were elected 



- 124 -

Appellants contended at trial that 

the 1982 elections demonstrated that any 

discriminatory effect of the at-large 

systems had, at least since the filing of 

the complaint, disappeared. The district 

court expressly rejected that contention: 

There are intimations from recent 
history, particularly from the 1982 
elections, that a more substantial 
breakthrough of success could be 
imminent --but there were enough 
obviously aberrational aspects 
present in the most recent elections 
to make that a rna t ter of sheer 
speculation. JA 39. 

The central issue regarding the . 

significance of minority electoral success 

is whether the district courts' evaluation 

of the obviously unusual 1982 election 

results was clearly erroneous. The parties 

offered at trial conflicting evidence 

from majority black House districts in 
section 5 covered counties which although 
they include some counties in Senate 
District 2, are not in question here. 
Stip. 95, JA 94; JA 35. 



- 125 -

regarding the significance of the 1982 

1 . 121 h 'd . h e ect1ons. T e ev1 ence suggest1ng t at 

the 1982 elections were an aberration was 

manifestly sufficient to support the trial 

court's conclusion. First, as the district 

court noted, there was evidence that white 

political leaders, who had previously 

supported only white candidates, for the 

first time gave substantial assistance to 

black candidates and did so for the 

121 In Forsyth County, for example, appel­
lants pointed to isolated instances of 
electoral success prior to 1982 which the 
court weighed in conjunction with evidence 
of electoral failures such as the defeat · 
of all black Democratic candidates, 
including appointed incumben~s, in 1978 
and 1980, years in which all white 
Democrats were successful. JA 37. In 
House District No. 8, which is 39% black 
in population, no black had ever been 
elected and from Mecklenburg, in the eight 
member House and four member Senate 
districts, only one black senator (1975-
1979) and no black representatives had 
been elected this century prior to 1982. 
JA 36. Moreover, as in Forsyth, in general 
elections wherever there was a black 
Democrat running, black Democrats were the 
only Democrats to lose to Republicans. JA 
135. 



- 126 -

purpose of influencing this litigation and 

prev-enting the introduction of single 

member districts. 122 Second, in Mecklenburg 

i 
County there were fewer white candidates 

than there were seats, thus assuring that 

bl k nd . d ld . h . 1 2 3 a ac ca 1 ate wou w1n t e pr1mary. 

Third, conversely, in Forsyth County there 

was such a surfeit of white candidates 

that the splintering of the white vote 

gave blacks an unusual . 124 opportun1ty. 

122 Hauser Deposition, 49; JA 259-60. 

123 JA 44. Moreover, the black candidate who 
lost in the general election was the only 
Democratic candidate to lose. In House 
District 23, there were only 2 white 
candidates for 3 seats in the 1982 
primary, and the black candidate who won 
ran essentially unopposed in the general 
election, but still received only 43% of 
the white vote. JA 46, 142-3, 153. 

124 JA 137--8. There were 9 white Democratic 
candidates, none of them incumbents, 
running for 5 seats. Appellees' expert 
testified that the likelihood of two 
blacks getting elected again in the 
multi-member district was "very close to 
zero." Id. 



- 127 -

Fourth, in 1982, as occurs only once every 

six years, there was no statewide race for 

either President or United States Senate, 

as a result of which white and Republican 

turnout was unusually low. 125 Fifth, in one 

county, black leaders had been able to 

bring about the election of a black 

legislator only by selecting a candidate 

who had not been visibly outspoken about 

. 126 
the interests of the black community. 

Finally, in a number of instances black 

candidates won solely because black voters 

in unprecedented numbers resorted to 

125 T.142-144, 179; JA 137-39, 140. White 
turnout was 20% lower than in 1980. 

126 Hauser Deposition 42-43;JA 205-6. The 
ability of some blacks to get elected does 
not mean they are the representatives of 
choice of black voters. T 691, 1291-4, 
1299; JA 214-15. 



- 128 -

single shot voting, forfeiting their right 

to participate in most of the legislative 

elections in order to have some oppor-

t 't f '1' . . 1 127 un1 y o preva1 1ng 1n a s1ng e race. 

The success of black candidates in 

1 98 2 was viewed by the court as a con-

catenation of these various factors, each 

of which either was a freak occurrence 

127 Experts for both appellants and appellees 
agreed that black voters had to single 
shot vote in order to elect black can­
didates in the districts at issue. T. 
797-8; JA 136, 148-49, 150,278-79. Lay 
witnesses for both parties also agreed 
that the victories of black candidates 
were due in large measure to extensive 
single shot voting by blacks. T .. 1 099; JA 
228, 258-59. 



- 129 -

over which appellees 9ad no control, 128 or 

in and of itself underscored the inequal­

ity in the multi-member election system. 129 

128 Thelikelihood, forexample, of repeating 
successfully the 1982 election of blacks 
in the challenged Forsyth House District 
was "very close to zero." JA 137. More­
over, unlike white Democrats, not a single 
one of whom lost in the 1982 general elec­
tions, black Democrats in the other 
districts still enjoyed only haphazard 
success. Thus, the court was not pre­
sented with the fact situatibn of Whitcomb 
v. Chavis, 403 u.s. 124 (1971). 

1 29 The necessity of single shot voting is a 
distinct handicap because it exacerbates 
the competitive disadvantage minority 
voters already suffer because of their 
numerical submergence. White voters get 
to influence the election of all candi­
dates in the multi-seat system, whereas 
blacks must relinquish any opportunity to 
influence the choice of other represen­
tatives in order to concentrate their 
votes on the minority candidate. As a 
result, white candidates can ignore the 
interests of the black community with 
impunity. See discussion supra at 
59-62. 



- 130 -

H. Responsiveness 

Appellees did not attempt to prove 

the unresponsiveness of individual elected 

officials. In a section 2 case unrespon-

s i ve ness is not an essential part of 

plaintiff's case. 130 Senate Report 29 

n.116; 131 Appellants' de minimus evidence 

130 This Court held in Rogers v. Lod~e, 458 
u.s. 613, 625 n.9, tfiat unrespons1veness 
is not an essential factor in establishing 
a claim of intentional vote dilution under 
the Fourteenth Amendment. 

131 Because section 2 protects the right to 
participate in the process of government, 
"not simply access to the f'rui ts of 
government", and because "the subjective­
ness of determining responsiveness" is at 
odds with the Congressional emphasis, a 
showing of unresponsiveness might have 
some probative value, but a showing of 
responsiveness has little. United States 
v. Marengo Count~, 731 F.2d at 157~. ~ee 
also Jones v. Luoock Count~', 727 F. 2d at 
381, 383 (upfiolding a violat1on of section 
2 despite a finding of responsiveness}; 
McMillan v. Escampia County, 748 F.2d at 
1045-1046. 



- 131 -

f . 132 b 1 b o respons1veness may e re evant re uttal 

evidence, but only if appellees had 

attempted at trial to prove unresponsive-

ness. Id. 

I. Tenuousness of the State Policy for 
MUitimember Distr1cts 

The district court correctly recogn-

ized that while departure from established 

state policy may be probative of a 

132 The only testimony cited to support their 
assert ion that appellees 1 "witnesses 

'' conceded that their legislators were 
responsive", A. Br. 32, was the testimony 
of one witness who testified on cross­
examination that of twelve Representatives 
and Senators from Mecklenburg County, two, 
the black representative and one white 
representative, were responsive. JA 
184-86. The only other evidence was the 
self serving testimony of one defense 
witness, listed in toto in footnote 14 to 
appellants 1 brief. Furthermore, appellants 
assertion that white representatives must 
be responsive because "white candidates 
need black support to win" A. Br. at 34, 
is not supported by the record. In the 
challenged districts, white candidates 
consistently won without support from 
black voters. See, supra, 62 n.69; JA 
231-2. 



- 132 -

violation of section 2, a consistently 

applied race neutral policy does not 

negate appellees' showing, through other 

factors, that the challenged practice has 

a discriminatory result. JA 51, citing S. 

Rep • at 2 9 , n. 11 7 • 

In this case, the district court did 

not find the application of a consistent, 

race-neutral state policy. In fact, after 

the Attorney General in 1981 objected 

under section 5 to the 1967 prohibition 

against dividing counties, both covered 

counties and counties not covered by 

section 5 were divided. 133 JA 52. 

The Attorney General found that the 

use of large multi-member districts 

"necessarily submerges" concentrations of 

black voters in the section 5 covered 

counties. Based on the totality of 

133 The challenged plan divided nineteen 
counties not covered by Section 5. 



- 133 -

relevant circumstances, the court below 

similarly concluded that, in the non-

covered counties as well, black citizens 

have less opportunity than white citizens 

to participate in the challenged majority 

white multi-member districts and to elect 

representatives of their choice. 

The decision of the district court 

rests on an exhaustive analysis of the 

electoral conditions in each of the 

challenged districts. The lower court 

made detailed findings identifying the 

specific obstacles which impaired the 

ability of minority voters to elect 

candidates of their choice in those 

districts. The trial court held 

••• the creation of each of the 
multi-member districts chal­
lenged in this action results in 
the black registered voters of 
that district ••. having less 
opportunity than do other 
members of the electorate to 
participate in the political 



pr-ocess 
tatives 
54. 

- 134 -

and to elect represen­
of their choice. JA 

This ultimate finding of fact, unless 

clearly erroneous, is sufficient as a 

matter of law to require a finding of 

liability under section 2. 



- 135 -

CONCLUSION 

The decision of the three judge 

district court should be affirmed. 

Respectfully submitted, 

JULIUS L. CHAMBERS 
ERIC SCHNAPPER 
C. LANI GUINIER * 

NAACP Legal Defense 
and Educational Fund, Inc. 
16th Floor 
99 Hudson Street 
New York, New York 10013 
(212) 219-1900 

LESLIE J. WINNER 
Ferguson, Watt, Wallas, 
& Adkins, P.A. 
951 S. Independence Blvd. 
Charlotte, North Carolina 28202 
(704) 375-8461 

ATTORNEYS FOR APPELLEES, Ralph 
G i ng 1 e s , e t a 1 • 

*Counsel of Record 

DATED: AUGUST 30, 1985 








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