Supplemental Brief for Appellees

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S. IndePeud'ence Boulevarcl

Ctarlotte, North Ssrslinr 28Wz

AuoneQs fot APPellees 1

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Cases

Anderson v. CitY
U.S.

TABLE OF AUTHORITIES

of Bessemer CitY,
( l98s)

Pag€

't 
5

Brooks v. AlIain, No.83-1865
(1984) b.... ....... 3,15

Hunter v. Underwood, _ U.S.
(1985) .....

Pull.man-Standard Co. v. Swint, 456
u.s. 273 (t981) ........

Rogers v. Lodge, 458 U.S. 613
( 1982) ..... o...........

SLrake v. Seamon, No. 83-1823

v. Regester, 412 U.S. 755
1973)

' t{itt v. Wainwright, U.S.
.!

I

zirnmer v. McKeiIhen, 485 F.2d 1297
(5th Cir. 1973) ...

..'l

it:
'I

11

White
( 9 r\',

t:

1(

''t

-l



Statutes

Section 2 of
lg65r is
s 1973(b

the Voting Rights Act'
amended, 42 U.S.C.

) ............"t't"

Rights

Page

2r7 tB

,16017

16, 17

of

12,

No.83_1958

IN THE

SUPREME COURT OF THE UNITED STATES

Ou-tober Term, 1984

----========

LACY H. THORNBURG, et al.,

Appellants,

v.

RALPH GINGLEST €L iTl .,

AppeI lees.

====== = ===-= = = ==== ======== ====gf

On Appeal from the United States
District Court for the Eastern

Oistrict of North Carolina

SUPPLEMENTAL BRIEP FOR APPELLEES

15

Sect,ion 5 of the Voting
of 1965 ...........

gther Authorities

RuIe 52, Federal Rules of
Procedure -....

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

Civ iI
aoaaaaaaaa""

oaaaaaaaaat"' 9.

,6

IO

Appe I

Brief in

the United

lees submi t

resPonse to

States.

'omental

-by

th is

bhe

S'

Act

- rl



2-

The controlling question raised by

the brief of the United States concerns

the standard to be applied by this Court

in reviewing appeals which present

essentially factual issues. A section. 2

action such as thits requires the trial

court t.o deEermine whether

the political processes }eading to
nomination or election in the State
or PoI itical subdivision are not
equai Iy oPen t.o pPrticipation by Ia
protected grouPJ.

The Presence or absence of such equal

opportunity, like the presence or absence

of a discriminatory motive, is a factual

See Hunter v. Underwo-od,

-3

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

83-1823 (Oct.. 'l , I984); Brooks v. AlIain
No. 83-1865 (Nov. 13, 1984). If an

ordinary appeal presenting a disput,ed

ques t ion of f act is nob, t.o be treated f or

that reason alone as presenting a "sub-
stantial questionr" then this case, and

almost alf direct appeals to this Court,

will have to be set for full briefing and

argument. We urge, however, that to

rou t i ne I y t reat appea ls regard ing such

factual disputes as presenting substantial
questions would be inconsistent with Rule

52(al, Federal Rules of Civil procedure,

and wibh the efficient management of this
ques t ion.

u.s. 1 1985); Rogers v. Lodge,

458 U.S. 613 ( 19S2). Correctly recognizing

the factual nature of Ehat issue, this

Court has on two occasions during the

' 42 u.s.c. s 1973(b)-

Court's docket.

The Sol i citor General,

ducted his own review of some
2

the record, advises the Court

ha no con-

portions of

Lhat, had he

,---- ltre SoL icitor General, understandably less



4-

been t.he crial judge, h€ would have

decided Portions of the case differently'

The judges who actually tried this case'

all of them North Carolinians wit'h Long

personal undersranding of circumstances in

that stite r- concluded t'hat b}acks were

denied an equal oPportunit'y Eo part'icipabe

in Ehe polit,ical Processes in six North

CaroI ina multi-member and one single

member legislative districts ' The

Solicitor General, on the other hand' is

of t.he opinion that there is a lack of

familiar wiEh the details of this case
tnit cn" trial court, makes a number of'

-5
3

equal opportuniEy in 2 districts, that

"there may well be' a lack of opportunity
4

in 2 other distriets, but that blacks in

fact enjoy equal opportunity to Partici-
paLe in the political process in the three

5
remaining districts. Other Solicitors

General might come to still different

conclusions with regard to the political

and racial realities in various portions

of North Carolina.

3 ,ou"o District B and Senate District 2i
U.S. Brief 21.

4 Hou"u District 36 and Senate District 22i
U.S. Brief 20 n.10 The appendix to the
jurisdictional statement which contains
the District CourE I s oPinion has a
typographical error sl-aEing err'-'rteously
that two black citizens have run suc''ess-
fulIy" for the Senate from Hecklenburg
County. The correct word is 'unsuccess-
fulIy". J.S. APP. 34a.

5 Hor". Districts 21 , 23 and 39; u.S. Brief
16.

inaccuraEe assertions about the record'
The government asserts, for example'
'there is not ine slightest suggestion"
ctraiUtacX candidates l'ere elecLed because
*t ir"" considered them 'safe" ' ( U'S ' Br '
l8 n. 17). In fact there was unconEra-
;i"i; teit,imony that only blacks who were

"if" "ou1d 
be eiected. ( Tr . 625-26 ' 691 '

;;j-, -sirr. rhe soticitor also asserts'
ii.o.tl"tiy, (U.s. Br' 17 n'l4) that !h"
JgBi .r""tion was the only election under
a-n" Pf un in quest ion ' In f act ' the
disrricts have b""n the same since 1971'
(J.S. APP.19a)



6-

The government rs fact-bound and

statistic-laden brief, noticeably devoid

of any reference to Rule 52, sets out aII

of the evidence in Ehis case which

supported t.he position of the defendants.

IE omit,s, however, any ref erence to the

substantial evidence which was relied on

by t.he trial court in finding discrimina-

tion in the political Processes in each of
6

the seven districts in controversy. The

SenaEe Report accomPanying section 2

'listed seven primary factual factors that

should be considered in a secEion 2 case

and the government does not, challenge the

findings in the district court's opinion

that at least six of those factors

supporEed appellees' claims. On the

contrary, t.he government candidly acknowl-

edges "It]he district court here faith-

-

o J.A. App. 21a'52a.

7-

fu11y consldered these objective factors,

and t,here is no claim that lts findtngs

wi t,h respecL to any of Ehem urere clearly

erroneous.' (U.S. Br. I 1 ).
The government apparent.ly contends

that all the evidence of discrimination

and inequality in the political process

waa outwelghed, 6lt least as to House

Oistricts 21 , 23 and 39, solely by the

fact that blacks actually won some

electlons in those multi-member dlstricts.

It urges

Judged s imply on the bas is ofiresultsrr the multimember plans in
these districts have apparently
enhanced not diluted minority
strength. (U.S. Br. 16).

On the governmentts view, the only

"result'which a court may consider is the

number of blacks who won even the most

recent election. Section 2, however, does

not author i ze a court to "judg IeJ simply



8-

on t,he basis of Ielectionl 'results'" , but

requires a more penetrat,ing inqui'ry into

at I ev idence tending t,o demonstrate the

presence or absence of inequality of
7

opport.unity in the political process.

Congress itself expressly emphasized in

section 2 that the rate at which minori-

t ies had been elected was onlY "9!9

circumstance which may be considered.'

-

/ rh" district court found, inter aIia, that
the use of racial appeals ffiTe6Ei6ns has
been widespread and persists to the
present, J.S. App. 32ai t'he' use of a
majority vote requirement "exists as a
continuing practical impediment to the
opportunity of black voting minorities" to
elect candidates of t,heir choice, J.S.
App. 30a; a substantial 9ap between black
and whit.e voter registration caused by
past inbentional discrimination ; extreme
racial polarization in voting patterns;
and a black electoraEe more impoverished
and Iess weII educated than the white
electorate and, therefore, less able to
parE icipate ef f ecEively in t,he .more
expensive mult i -member d i s tr i ct elect ions .
There was also substantial , uncontradict'ed
evidence that racial appeals were used in

. the 1982 Durham Counby congressional race
and Ehe then nascenL 1984 election for

. 
U.S. Senat.e.

9-

(Emphasis added). The legislative history

of sect ion 2 repeat,edly makes clear Ehat

Congress intended that the courts were not

to at.tach conclusive significance to the

fact that some minorities had won elec-
I

tions under a chaltenged plan.

The circumstances of this case ilIus-

trate the wisdom of Congressr decision to

require courts to consider a wide range of

circumstances in assessing whether blacks

are afforded equal opportunity to part.ici-

pate in the political process. A number

8 s. Rgp . 97-417 , 29 n. 1 1 5 ( 'Ehe elect ion of
a few rninority candidates does not
'necessarily foreclose the possibility of
dilution of the black vote' , in violation
oi this sect ion" ) , n. 1 1 8. ( "The failure
of plaintiff to establish any Particular
f actor is not rebuttal evidence of
non-ditution"1. See also S. Rep. at 2,
16,21,22,27,29,33 and 34-35. The
f Ir:or debates are replete with similar
re fe rences. In addit ion, see White v.
Ietgg!"t, 412 u.s. 7ss (1973) aEiffiE
CFa-vEEl. Barnes , 34 3 F. Supp . fr{;Tfc
7Tz-Ttr.o. Texas 1972) (dilution present
al cltr;ugh record r;lrrtws re'peaLed elect ion of
tnror)rrty canrlrdaLes ) .



l0

of the instances in whlch blacks had won

elections oecurred only after the com-

mencement of this Iit'igation, a circum-

stance which the trial court believed
9

t,ainEed their significance. In several

othei elections the successful black
10

candidates were unopposed. In one example

relied on by Ehe Solicitor in which a

black was elected in 1982, every one of

the l1 black candidabes for at'-large elec-

tions in that county in Ehe previous four
11

years had beeri defeated. In assessing the

political opportunities afforded to black

-

v J.A. ApP. 37a. See also, S. Rep.at 29
n.ll5r-Citing Ztmmer v. ttcXeit , 485

t1

voters under Ehose at-large systems, the

Solicitor General evidently disagrees with

the comparat ive weight which the trial

court gave to these election results and

to bhe countervailing evidence; the

assessment of that evidence, however, rras

a matter for the trial court.

The Sol icitor General seeks, in the

alternative, to portray his disagreement

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

involving some dispute of law. This he

does by Ehe simple expedient of accusing

the diserict courE of eiEher dlssembling

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

Br i e f 12 ) Thus, despite t,he distrlct

court's repeated statements that section 2

requires only an egual opportuniEy to
12

participate in the political process, the

Solicitor General insists that 'the only

12 J.s. App. 12a, 15a, 29a n.23 , 52a,

, t0
ll

F.2d 1297, 1307-T5tfeir. 1973), (Post-
lit,igation success is insignificant
because iE 'might be attributable to
politicalsupport motivated by different
ionsiderations -- namely that election of
a black candidate will thwart sriccessful
chal lenges to electoral schemes on
dilution grounds. i )

J.S. App. 42ar 44a.

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



12

expl anat ion f or t.he disErict court I s

conclusion is that lt erroneously equated

the }egaI standard of SecEion 2 with one

of g_ge3-nteed electoral. success in

proportion to the black percentage of the

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

orig inal ) . Elsewhere, t,he Solicltor,

although unable to cite any such holding

by the trial court, asserts that, the court

mus t have been applying an unstated

'proport ional representation plusi

standard. (U.S. Brief l8 n.18). The

actual text of the district, court' opinion

simply does not contain any of the legal

holdings Eo which Ehe Solicitor indicates

he would object if they trere some day

contained in some other decision.

The government does not, assert that

t,he t r i aL court 's f actual f inding of

racially polarized voting was erroneous,

or discuss the extensive evidence on which

l3

that f inding was based. RaEher, the

government asserts that the trial courtt

although apparently justified in finding

raciatly polarized voting on the record in

t,h is case, adopted an erroneous 'def ini-

bion" of racial bloc voting. (U.S. Br.

13). Nothing in the trial courtrs detailed

analys is of racial voting patterns,

however, purports to set any mechanical

standard regarding what degree and

frequency of racial polarizat.ion is

necessary to support. a section 2 claim.

Nothing in thab opinion supports bhe

government rs assertion thaE t,he trial

court would have found racial polarization

whenever less that 50t of white voters

voted for a black candidaLe. In this

case, over the course of some 53 elec-

t ions , an average of over 8'lt of white

voLe rs refused to supporL any black

candidate. (J.S. App. 40a) . Prior to this



1{

litigat,ion there were almost no elect'ions

in which a black candidat,e got votes from

as many as one-third of the white voters'

(J.S. APp. 41a-45a). In the five elec-

tlons where a black candidate was unop-

posed, a majorit,Y of whites l'ere so

determined not to support a black that

t,hey voted for no one raEher than voLe for

Ehe black candidate. (J.s. App'4{a) '

While the Ieve}' of white resistance to

black candidates was in other instances

less exEreme, the trial court was cer-

tainly justified in concluding t'hat there

ras racial polarizat'ion, and the Solici-

tor General does not assert otherwise'

The Sol icit'or General urges this

Court to note probable jurisdiction so

that, laying aside the policy of appellate

seI f-restraint announced in Pullman-

Standard -v. Swint, 456 U'S' 273 ( l98l ) '

. anO its progeny, the Court can embark upon

15

its own inquiry into the diverse nuances

of racial politics in Cabarrus, Forsyth,

Wake, WiIson, Edgecombe, Nash, Durham,

and tlecklenburg counties. Twice within

the l as t mon th, however, t'h is Court has

emphatically admonished the courts of

appea I s against such undertakings.

Anderson v. ,City .of Bessemer City, 

-u.s. (1985);@.-
U.S. (1985). Twice in the Present

terrn th is Court has summarily af f irmed

similar fact-bound appeals from district

court decisions rejecting section 2

claims. Starke V. Seamon, No. 83-'1823

(Ocbober 1 , I 984) ; Brooks v. Allain, No'

83-1865 (Nov. 13, 198{). No different

standard of review should be applied here

merely because in this section 2 case the

preva i I ing par[y happened to be the

plaintiffs.



16

Appellees in this case did not seek,

and t,he trlal court did not require, any

guarantee of Proportional representation.

Nor did proportional rePresentat.ion result

f rom Ehat court's order. Prior to t,his

litigat.ion only 4 of the 170 members of

the Norbh Carolina legislature were black;

today there are stiIl onlY I 6 black

riembeis, Iess than I Ot, a f ar smaller

proportion than the 22.41 of the popula-

t,ion who are bLack. Whites, who are 75.8t

of t,he state population, still hold more

t,han 90S of the seats in the legislature.

In the past this Court has frequenEly

deferred to the views of the Att,orney

General with regard to the interpretation

of sect,ion 5 of the Voting Rights AcE. No

such deference is warranted with respect

to sect.ion 2. Although the DeparEment of

.Just ice in 1965 draf t,ed and strongly

supporIed enacEment of section 5, the

17

Department in I 98 I and 1982 led the

opposition to the amendment of section 2,

acquiescing in the adoption of Ehat

provis ion only after congressional

approval lras unavoidable. The Attorney

GeneraI, although directly responsible for
the administration of section 5, has no

similar role in the enforcement of section

2. l{here r ds where, a voting rights claim

turns primarily on a factual dispuLe, t.he

decisions of this Court require t.hat.

deference be paid t,o 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. @, 412 U.S.

755, 769 ( 1973). The views of the

Department are entitled to even less

weight whenr ds in this case, the SoIici-
tor's present claim that at-large dis-
tricEs "enhance" the interests of minority



l8

vot,e rs i n North Carol ina represents a

complete reversal of the 1981 position of

the C iv i I Rights oivision that such

districEs in North Carolina "necessarily

submerge I t cognizable minority population

concentratlone inEo }arger whiEe elec-

torat€s. n ( Section 5 objection letter '
Nov. 30, 1981, J.S. APP' 5a)'

CONCLUSION

For t'he above reason, the iudgment of

the disErict' court should be sunmarily

affirmed.

RespectfullY submitt'ed,

LANI GUINIER*
NAACP Legal Defense

Educational Fund,
99 Hudson SLreet
1 6th Floor

and
Inc.

New Yorkr New York 10013
(2121 219- I 900

- 19

LESLIE J. WINNER
Ferguson, Vfatt, WalIas

and Adkins, P.A.
951 South Independence Blvd.

Charlotte, North Carolina 28202

Attorneys for Appellees

*Counsel of Record