Supplemental Brief for Appellees

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l.Ir rgr

Frryrrur OffrI rt It, tntet frtdrlt
OorosDB TrEu, 1984

IAoc E. TronnauBo, et d,

V.

Brups Glnsor.ts, et ol,,

Appilonte,

Appellees.

ON APPEAT, TBOM TEE IINTTED BTATES DIIIIEf,OT OOUBI

FOB TgE EASTEBN DIETBICT OF NOBTE OABOIiI}TA

SI]PPLEMENTAL BRIEF FOB APPEITEES

Jurrus LrYorvrqp Cgelrs""F
T,rx-r Gurrrm'

NAACP Legal Defense &
Educational Fuad, Ino.

16th Floor
99 Hudson Street
New York, l.Tew York 10013

(212) 219-1900

LES,E'Wnrrs-uB
X'erguson,'Watt,'Wallas,

and Adkins, P'A'
951 S. Independence Boulevard
Charlotte, North Qslelinn 28202
(704) 375-8461

Attorneys for APPel,l,ees

fCoungel of Becord



!i

: -'!

TABLE OF AUTHORITIES

Page

Cases

Anderson v. City of Bessemer City,
u.s. (1985) .............. l5

Brooks v. Allain, No. B3-1865
(1984) .............o... 3rl5

Hunter v. Underwood, u.s.
(lgg5) .........:............... 2

Pullman-Standard Co. v. Swint, {56
u.s. 273 (lggl) ....o........

Rogers v. Lodge, 458 U.S. 613
(lgg2) ..... .................

Strake v. Seamon, No. B3-1823
(1984) ..... ................. 3115

tlhite v. Regester, 412 U.S. 755
( 1973) ............ 9 rl7

Witt v. Wainwright, u.s.
(1995) ..:....... 15

Zimmer v. ItcKeit'hen, 485 F.2d 1Zg7
(5tn cir. 1973) .................. 10

.:i.rl
ii<t

1{

2

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Page
No.83-1969

IN THE
Statutes

SUPREXE COURT OF THD UNITED STATESSection 2 of the Voting Rights Act of
1955, as anended, 12 U.S.C. october Tern, l98,l
s | 973(b ) .......2,1 ,8

, 12,15,16,'.17
LACY H. TI|ORNB0RG, et aI.,

section 5 of the voting RighEa Act
of 1965 .... 15,17 Appellants,

Other Authorities

RuIe 52, Federal Ru1es of Civil
Procedurg ........................ 316

S. Rep. 97-417 (1982) ................. 9.10

v.

RALPH GINGLEST €t aI.,

;,**
============ = -====:========_=a:I-

On Appeal from the United StatesDistrict Court for the EasternDistrict of NorEh Carolina

SUPPLEMENTAL BRIEF FOR APPELLEES

Appellees submit this Srr-...r emental

Brief i.n response to the L. -J by

the United States.

ii



2

The cont,rolling question raised by

the brief of the United States concerns

the standard to be applied by t,his Court

in reviewing appeals which Present

essentially factual issues. A section 2

acEion such as thiB requires the trial

court. to deternine whether

the political processes leading to
nonination or election in the StaLe
or pol itical subdivision are not
equally open to Bf,rticipation by [a
protected grouPl.

The presence or absence of such equal

oppor t, un i t.y , l ike the presence or absence

of a discriminatory motive, is a factual

ques t. ion. See Hunter v. Underwood,

u.s. ( 1985); Rogers v. Lodge,

458 U.S. 613 ( 1982 ) . Correct,Iy recognizing

the factual nature of t,hat issue, this

Court has on two occasions during the

3-

present term summarily affirmed appeals in
section 2 actions. Strake v. Seamon, No.

83-1823 (Ocr. t, 1984); @
No. 83-1965 (Nov. t3r lgg4). If an

ordinary appeal presenting a disputed
ques E ion of f acE is now Eo be treat,ed f or
that reason alone as present,ing a "gub_
sEantial questi.onr'Ehen this case, and

almost all direct appeals to this Court,,

will have to be set for full briefing and

argument. We urge, however, that to
rouEinely treat appeals regarding such

fact,ual disputes as presenting substantial
questions would be inconsistent with RuIe

52(al, Federal Rules of CiviI procedure,

and with t,he effi.cient management of t,his
Court, 's docket .

The Solicitor GeneraI, ha,..no con_

ducted his own review of some portions of
2

the record, advises the Court that, had he

42 U.S.C. S 1973(b).
The Solicitor General, understandably less



4-

been the trial judge, he would have

decided Portions of the case differently.

The judges who actually tried t'his case,

aI I of then North Carol inians wit'h long

personal understanding of circumstances in

t,hat, stat,e r- concluded that blacks were

denied an equal opportuniEy t'o participaEe

in the pol i t ical processes in six Nort'h

CaroI ina muIt,l-member and one single

member legislative districts. The

Sol icit,or General r oo t,he other hand, is

of the opinion that there is a lack of

f ami I iar wit,h the details of t'his case
than t,he trial court, makes a nunber of
inaccurate assertlons about the record'
The government asserts, for examP1e,
'cher6 is not the slightest suggestion"
that black candidates were elected because
whites considered them 'safe'. (U.S. Br'
18 n. 17). In fact t,here was uncontra-
dicted test,imony that only blacks who were
safe could be elected. (Tr. 625-26, 691,
851, 857). The Solicit'or also asserts,
inc.orrectly, ( U.s. BE. 17 n . 14 ) that the
1982 election was the only election under
t.he plan in question. In f acE, the
districts have been the same since 1971'
(J.S. ApP. 19a)

5-

3
equal opportunity in 2 dist,ricts, that,
rthere may weII be' a lack of opportunity

4
in 2 other districts, but that blacks in
fact enjoy equal opport,unity to partici-
pate in the poliLical process in t,he three

5
remaining districts. Other Solicitors
General might come to sti.Il different
conclusions with regard to the political

and racial real ities in various port,ions

of North CaroIina.

House District I and Senate District 2i
U. S. Br ief 21 .

House District 36 and Senate District 22i
U.S. Brief 20 n.10 The appendix t,o the
jurisdictional staEement which contains
the District Court ! s opinion has a
typographical error st,ating erroneously
that two black citizens have run "success-
f uI Iy' f or the Senate f rom llecklenburg
County. The correct word is runsuccess-
fully". J.S. App. 34a.

Flouse DisErict.s 21 , 23 and 39; U.S. Brief
15.



6

The governmentrs fact,-bound and

statistic-Iaden brief, noticeably devoid

of any reference to RuIe 52, set,s out aII

of the evidence in this case which

supported the position of the defendants.

It, onits, however, any reference to the

substantial evidence which was relied on

by the trial court. in finding discrimina-

tlon in the political processes in each of
6

t,he seven districts in controversy. The

SenaEe Report accompanying section 2

listed seven primary factual factors that

should be considered in a sect,ion 2 case

and the government does not, challenge the

f lndings in the dist,rict court's opinion

that. ae least, s ix of those f actors

support,ed appellees' claims. On the

contrary, the government candidly acknowl-

edges r It ] he district court here f ait,h-

ffia-52a.

7-

fully conatdered these objective factors,
and there ls no claim that lts findlnge
wlth reepect to any of them were clearly
erroneoug.' (U.S. Br. l l ).

The government apparently contends

that alI the evidence of discriminatlon
and lnequality in the politlcal procesB

uas outwetghed, at. Ieast as to House

Dlst,ricts 21 , 23 and 39, solely by the

fact that, blacks actually won some

electlons in those multi.-member dlstricts.
It urges

Judged simply on the basis ofrresultsrt the mulEimenber plans in
these districts have apparently
enhanced noC diluted minority
st,rength. (U.S. Br. l6).

On the government rs view, the only
iresultr which a court may consider is t,he

number of blacks who won even the nost
recent election. Section Z, however, does

not authorize a court to "judg[e] slruply



8-

on t,he bas is of [elect ion ] I result,s | ' , but

requires a more penetrat,ing inquiry int,o

aI I ev idence t.ending to demonstrate the

presence or absence of inequality of
7

opportunity in the political process.

Congresa itself expressly emphasized in

section 2 that, t,he rate at which minori-

t ies had been elected hras only 'onq

circumstance which may be considered.'

' Thediscrict court found, inter aIia, that
the use of racial appeals ffiTedEi6ns has
been widespread and persists to the
present, J.S. App. 32ai the use of a
majority vote requirement "exists as a
cont,inuing pract,ical inpediment to the
opportunity of black vot,ing minorities" to
elect candidates of t,heir choice, J.S.
App. 30ai a substantial gap between black
and white voter registration caused by
past intentional discrimination; extreme
racial polarization in voting patterns;
and a black electorate more impoverished
and less weLl educated than t.he white
electorat.e and, therefore, Iess able to
participate effectively in the more
expensive multi-member district elect ions .
Ttere was also substant.ial, uncontradicted
evidence that racial appeals were used in
the 1982 Durham CounEy congressional race
and the then nascent '1984 election for
U.S. Senate.

9-

(Emphasis added). The legislative history
of section 2 repeatedly makes clear that,

Congress inEended that the courts were not

to attach conclusive significance t.o the

fact Ehat. some minorities had won elec-
I

tions under a challenged plan.

The circumst.ances of Ehis case illus-
trate the wisdom of Congressr decision to
require courts Eo consider a wide range of

circumstances in assessing whether blacks

are af forded equal opportunity to partici-
pate in the political process. A number

S. Rep. 97-417, 29 n. I l5 ('Che election of
a few rninorit,y candidates does not
'necessarily foreclose the possibility of
dilution of Ehe black vote I , in violation
of this sect ionn ) , n. 1 I 8. ('The failure
of plaintiff to establish any particular
facEor is not, rebuttal evidence of
non-dilution" ) . See also S. Rep. at 2,
16 , 21 , 22, 2'l , 29, 33 and 34-35. The
fIoor debates are replete with similar
references. fn addition, see White v.
Regester, 412 U.s. 755 (1973) atffiE-
ffi. Barnes, 343 F. Supp. W1fr
rc 1972) (dilurion present
alchough record shows repeated election of
mrnority candidates ) .



I

10

of the instances ln which blacks had rdon

elections occurred only after the com-

mencement of this litigation, a circum-

etance which the trial court believed
9

tainted their significance. In several

other elect,ions the successful black
10

candidates were unopposed. In one example

rel ied on by t,he Sol icitor in which a

black was elected in 1982, every one of

the I I black candidates for at-large elec-

tions in that county in t,he previous four
11

years had beeri defeated. In assessing the

polit,ical opportunities afforded to black

J.A. App.37a. See also, S. Rep.at,29
n.115, citing Zimmer v. ilcKeithen, 485
F.2d 1297, l3ompost-
I itigation success is insignificant
because it'night be attributable to
poliEicalsupport. motivated by different
consideraEions -- namely that election of
a black candidate wiII thwart successful
challenges to electoral schemes on
dilution grounds.r )

J.S. App. 42a, 44a.

J.S. App. 35a, 42a-43a.

11

voters under those at-large systems, t,he

Solicitor General evidently disagrees with
the compa rat.ive weight, which the trial
court gave to t,hese electlon results and

to the countervailing evidence; Ehe

assessment, of that evldence, however, uas

a matt,er for ehe trial court.
The Solicitor General seeks, in the

alternativer to portray his disagreenent

with t,he trial court I s f actual f indings as

involving some dispute of law. This he

does by the simple expedient of accueing

the district court of eit,her dlseembling

or not knowing what it, was doing. (U.S.

Brief 12) Thus, despite the dietrlct
courtrs repeat,ed st.atements that gection 2

requires only an egual opportunity to
12participaEe in the political process, the

Solicitor General inslsts that .the only
l0

tl l2.r.s. App. 1Za, l5a, 29a n.23 r 52a.



12

explanatlon for the district court I s

concluston is that, tt erroneously equated

t,he legal standard of Sect,ion 2 with one

of g_g-arg-g!S9g. electoral success in
proportion to t,he black percentage of the

population.r (U.S. Brief 12, emphasis

original ) . Elsewhere, the Solicltor,
althOugh unable to cit.e any such holding

by the trial court, asserts that, the court

nust have been applying an unstated

'proport ional represent,at lon plus'

standard. (U.S. Brief 18 n.18). The

actual text of the district court opinion

einply does not contain any of the legal

holdinge to which the Solicitor indicates

he would ob ject if t,hey were some day

contained in some other decision.

The government, does not, assert that

the trial court rs fact,ual f inding of

racially polarized voting was erroneous,

or discuss the extensive evidence on which

t3

that. finding was based. Rather, the

government asserts t.hat the trial courE,

aI Ehough apparent,Iy justif ied in f inding
raci.ally polarized voting on t,he record in
th i s case , adopt.ed an erroneous .def ini-
t,ion" of racial bloc voting. (U.S. Br.
'13) . Nothing in the trial court I s detailed
analys is of racial voting patterns,

however, purports t,o set any nechanical

standard regarding rhat degree and

frequency of racial polarization is
necessary to support a section 2 claim.

Not.hing in thaE opinion supports the

government I s assert,ion that the trial
court. wouLd have found racial polarization
whenever Iess that 50t of white voters

vo t.ed f or a black candidat,e . In this
case , ove r t.he course of some 53 elec-
tionsr €rn average of over Blt of white

voters refused to support any black

candidat,e. (J.S. App. {0a) . prior to this



1{

Iitigation there uere alnost no elecEions

in which a black candidate got votes fron

as nany as one-third of the whlte voters.

(J.S. App. 41a-45a). In t,he five elec-

tions where a black candidate was unop-

poeed I d majority of whites were so

determined not to support, a black that,

they voted for no one rat,her than vote for

the black candidate. (J.S. ApP.4{a).

tlh ile t,he level' of white resistance to

black candidates was in other instances

less extreme, the trial court was cer-

tainly justified in concludlng that there

raa racial polarizat,ion, and t,he SoIicl-
tor General does noE assert otherwise.

The Sol icit.or General urges th is

Court t,o note probable jurisdiction so

that, laying aside the policy of appellate

seI f-resEraint announced in Pullman-

St,andard v. Swint, 456 U.S. 273 ( 1981),

and its prog€Dy, the Court can embark uPon

t5

its own inquiry into the diverse nuances

of racial politics in Cabarrus, Forsyth,

Wake, WiIson, Edgecomber Nash, Durha!!,

and l,tecklenburg counties. Twice within
the last month, however, this Court has

emphatically admonished the courts of
appeals against such undertakings.

Anderson v. City of Bessemer City, _
u-s. 11985);@.-
U . S. ( 1 985 ) . Twice in the present

terrn t.h is Court has summarily af f irrued

similar fact,-bound appeals from district
court decisions rejecting section 2

claims. Starke v. Seamon, No. 83-1823

(October 1,1984); Brooks v. AIIain, No.

83-1865 (Nov. 13, 198{). No different
standard of review should be applied here

merely because in Chis sect,ion 2 case the

prevai I ing party happened to be the

plaintiffs.



l6

Appelleee ln this caae did not seek,

and the trlal court did not require, any

guarantee of proportional representat,ion.

Nor dld proportional representation result
f roo that court I s order. Prior t,o t,his

I i t lgat, ion only 4 of t,he 170 members of
t,he North Carolina legislature were black;

today there are stiIl only I 5 black

iembers, Iess than l0tr a far smaller

proport,ion than the 22.4* of the popula-

tion who are black. h,hites, who are 25.8t

of the s t,ate populat ion , st il I hold more

t,han 900 of t,he seat,a in the legislat,ure.
In the past this Court has frequently

deferred to the views of the At,torney

General with regard to the int,erpretation

of section 5 of the Voting Rights Act. No

such deference is warranted with respect

to section 2. Although the Department, of

Justice in t965 drafted and strongly
supported enactment of section 5r the

17

Department in lggl and l9g2 led the
opposiEion t,o the arnendment of section 2.
acquiescing in the adoption of that
provision only after congressional
approval was unavoidable. The Attorney
General, although direct,Iy responslble for
the administration of section 5, has no

similar role in the enforcement of sectlon
2. lfherer €ls where, a vot,ing rights claim
turns primarily on a factual disput,e, the
decisions of this Court require t,hat,

deference be paid Eo the judge or judges

who heard the case, not to a Justice
Department official, however well inten_
tioned, who may have read some portion of
the record. White v. Reqester, 412 U.S.
755, 769 (1973). The views of the
DepartmenE are entitled to even less
weight when r ils in this case, the SoIici_
tor I s present, claim that at-Iarge dis_
t ricLs "enhance. the interest,s of minority



a

18

voters in North Carolina represents a

conplete reversal of the 1981 position of

t,he C iv i I Rights Division t'hat such

districts in North Carolina 'necessarily

subnerge I I cognizable minority population

concenErat lone int'o larger whit,e elec-

torates.i (Section 5 objection leEter,

Nov. 30r 1981, J.s. APP. 6a).

CONCLUSION

For E,he above reason, t,he judgmenE of

the district court, should be summarily

affiraed.

Respectf u1lY submitEed,

ffiBERS
LANI GUINIER*

NAACP Legal Defense and
Educat,ional Fund, Inc.

99 Hudson Street
1 5th Floor
New York, New York 10013
(2121 219- I 900

l9

LESLIE J. WINNER
Ferguson , l{att , hlal }as

and Adkins, p.A.
951 South Independence BIvd.

Charlotte, North Carolina 28202

Attorneys for Appellees
*CounseI of Record