Draft of Brief

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0788CCT001
9.tork Order #05389

August 6, 1985

ARGI.'MENT

The L982 Amendment to the Voting Rights Act
Expressed the Clear Intent of Congress To Remedy
Dilution of RaciaI Minority voting Strength
Caused by the Continuing Effects of Past
Discr iminat ion

In enacting the 1982 Voting Rights Act Extension

("the L982 Act"), which emended Section 2 of. the Voting Rights

Act of 1955, Congress rejected Ehe implications of the Court's

plurality opinion in City of MobiIe v. Bolden,L/ *hich Congress

believed had radically altered the contitutional standard for

voting dilution cases upon which the legislative provision

originally had been premised.2/ The Senate Report accompanying

the L982 Act explains that, prior to Bolden, the Supreme Court

had held that proof of discriminatory intent was not a neces-

sary element of a voting dilution ."=".3/ Bolden had rejected

this view, concluding that the Constitution protected against

only intentional dilution of racial minority voting power.!-/

446 u.S. s5 (1980).

Sen. Rep. No. 417,97th Cong., 2d Sess. f9.

Id. at 24-25.

4/ Id. at 24. The Court specifically held that both the
Eourteenth and Fifteenth lmendments protect against only inten-
f ional vote di 1ut ion. rcll at 62 , 66-. The plural i ty f urther
found that Section 2 of the Voting Rights Act was coextensive
with the Fifteenth Amendment. Id. at 50-51.



rt

65 Amended Section 2 provided lhat a violation of the Act would be

establ i shed:

"if, based on the totality of circum-
stances, it is shown that the political
processes leading to nomination or election
in the State or political subdi.vision are
not equally open to participation by mem-
bers of a class of citizens protected by
subsect,ion (a) in that its members have
Iess opportunity than other members of the
electorate to participate in the political
process and to"glect representat ives of
their choice. n.l/

In enacting this provision, Congress eliminated any

doubt that Section 2 was intended to prohibit discrimi.natorY

IOl results as well as discriminatory intent .5/ tn" Iegislative

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5/ 42 U.S.C. S 1973(b) (1982). Congress further
explained: "The extent to which members of a Protected class
have been elect.ed to office in the State or polit.ical subdivi-
sion is one circumstance which may be consi.dered: Provided,
That nothing in this section establishes a right to have mem-
bers of a protected class elected in numbers equal to their
proportion in the population." Id.

90 Section (a) prohibits a state or political gubdivi-
9t sion from imposing or applying a voting qualification or other
92 prerequis i te, or any standard, pract ice, or procedure t,hat
93 results in a "denial or abridgment of the right of any citizen
94 of the United States to vote on account of race or color.n
95 42 u.S.c. S 1973(a) (I982).

t02 6/ "Plaintiffs must either prove !discriminatory)
103 intent, oF alternatively, must show that the challenged system
104 or practice, in the context of all the qircumstances in the
105 jurisdiction in guestion, results in minorities being denied
106 equal access to the political process. " S. Rep. No. 4L'7 , supra
107 note 2, at 27 . See also id. at 2; H.R. Rep. No.. 227 , 97th
125

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history indicates that Congress was incorporating into the

statute the pre-Bolden caselaw to guide courts in identifying

Section 2 violations.Z/ These cases had applied a "totality of

circiunstances" lest that took into account a number of factors

relevant to the nature of the challenged electoral scheme or

practice and the context in which that scheme or practice

operated.g/

IFootnote continued from preceding pageJ

Cong., lst Sess. 2. Discriminatory intent can be established
through either direct or indirect circumstantial evidence.
S. Rep. No. 4!7, supra note 2, at 27 n.I08.

. Both the Senate and the House Committees recognized
that :tdl iEcriminatory purpose is frequently Easked and con-
cealed, and officials have become more subtle and Bore careful
in hl.ding their motivations when they are racially based, " H.R.
Rep. No. 227, supra at 31; see S. Rep. No,4l7, supra at 10.
Thirs, the case-b1r-case adjudication of discriminatory intent in
vote diluti.on cases would "create a Substantial risk that
intentional discrimination Iwould] go undetected,
Encorrected and undeterred." S. Rep. No. 4L1, supra at 40.

7/ See S. Rep. No. 4l-_7, supra note 2, at 32 l-"legisla-
f ive intent to incorporate lthe I,Jhite v. Reqester I precedent
and extensive case law which developed around it, into the
application of Section 2.") i see also id. at 15; H. Rep.
No. 227, supra note 5, at 29-30 ("By amending Section 2 of lhe
Act CongrEEi intends to restore the pre-Bolden understanding of
the proper legal standard which focuses on Eesults.").
g/ As an interpretive aid, the legislative history enu-
merated the !ol1owing typicat objective factors, largely iden-
tified in White v. Reqester, 4L2 U.S. 735 (1973) gnd Zimmer v.
McKeithen, 485 F.2d 1297 (Strr Cir. L973) (en banc), aff'd. on
other orounds sub nom. East Carroll Parish School Board v.
Marshal1, 424 U.S. 535 (1976), to guide courts in analyzing the
discriminatory nature of an election system:

IFootnote continued next pageJ

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IFootnote continued from precdding pagel

the extent of any history of official
discrimination in the state or poli-
ficat subdivision that touched the
right of the members of the minority
group to register, to vote, or gther-
wise to participate in the democratic
process;

the extent to which voting in the
elections bf the state or political
subdivision is racially polarized; ..

the extent to which the state or poli-
tical subdivision has used unusually
Iarge election districts, majority
vote requirements, Btrti-single shot
provisions, or other yoting practices
or procedures that Eay enhance the
opportunity for discrimination against
the minority group;

if there is a candidate slating pro-
cess, whether the members of the
minori.ty group have been denied access
to that process;

the extent to which members of the
minority group in the state or poli-
tical subdivision bear the effects sf
discrimination in-such areas as educa-
tion, employment and health, which
hinder their ability to participate
effectively in the poJ-itical process;

whether political campaigns have been
characterized by overt or subtle
racial appeals;

the extent to which members of the
minority group have been elected to
public office in the jurisdiction.

198 "Additional factors that in some cases have had probative value
199 as part of plaintiffs' evidence to establish a violation are:

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The legislative history makes clear, however, that there is 'no

lequirement that any particular number of factors be proved, or

that a rnajority of them point one way or the other,"9/ and rec-

ognizes that certain factors may be more relevant than others

depending upon the context in which they arise .lA/ In addi-

tion, "[!r]hile these enumerated factors wilI often be the most

IFootnote continued from preceding pagel

"whether there is a significant lack
6f responsiveness on the part of
elected off icials to the particu-
Iarized needs of the members of the
minority group.

"whether the policy underlying the
state or political suMivision's use
of such voting qualification, prereq-
[isite to voting, or standard, Prac-
tice or procedure is tenuous."

9. Rep. No. 4L7, supra note 2, at 28'29.

Contrary to the suggestion of the Washington Lega1
Eoundation that the Senate Committee Report should not be
freated as persuasive evidence of Congress' intent in amending
gect ion 2 , Brief of Amicus Curiae The l'lashinqlon Leqal
Foundation at-I::]tr, Federal courts adjudicating vo!9 dilution
qlalmasinCe the amendment of Section 2 aII have relied on the
Senate Report's Iist of objective factors as the proper
Starting point for analyzing the discriminatory nature of elec-
toral systems. See, 9-€-:-, McMi ll ian v. Escdm ,
748 F.2d 1037 , 1042-43 (5th Cir. 1984); Ketchum.v. .BYrne,
lqo F.2d 1398 , 1404 n.5 (7th Cir. 1984), cert. 4elied ?ub-nom.
Citv Council v. xetqhum, No. 84-527 (June 3, f985); United

iss ion , 73:.. F. 2d I545, 1555-65

S. Rep. No. 4L7, supra note 

-, 
at 29.

rd.

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Ielevant ones,

of the alleged

in some cases other factors wiIl be indicative

d.i 1ut ion. " 11l

Underlying this extension of Section 2 Lo reach

discriminatory results was Congress' overriding goal to com-

pensate for the diminishing effect of prior purposeful discrim-

i.nation on the voting strength of racial minorities.l2/ The

amend.ment embodied Congressi dete"*ination that the fullest

redress for the lasting effect of prior wrongs could be

achieved by prohibiting electoral schemes that produced

discriminatory results rather than just those created with

discriminatory motivation. A focus on results rather than on

intent was appropriate since "voting practices and procedures

that have discriminatory results perpetuate the effects of past

purposeful discrimination."D/ Hence, Section 2 prohibits more

L]-/ Id. See, e.q., McMilli.a{r v,. Fsc?mbia Countv,
fra F. 2d ro:z , toe 3 -( 5rh cir. 19EA-);l+a F.2d r0:2, 1043 (5th cir. 1984); united states v. Dallas
Countv Commission, 739 F.2d L529, I534 n.2 (Ilth Cir. 1984).

12/ See Jones v. Citv of Lubbock, 727 F.2d 364, 374-75 -TSttr Cir. )--(1984) ( relying in part on remedial aspirations of
amendment to Section 2 in upholding amendment as within Con-
gress' enforcement power under Section 5 and Section 2 respec-
Iively of the Fourteenth and Fifteenth Amendments); Maior Y.
Treen, 574 F. Supp. 325, 343 (g.o.La. 1983) (same). Indeed,
ttre Senate Committee Report explained that this remedial goal
also was the pri.me motivation behind the original passage of
the Voting Rights Act of 1955. S. Rep. No. 4L7, supra note 2,
at 5 (quoting Statement of Sen. Jacob Javitz, 111 Cong. Rec.
8295 (1e55) ).

13/ S. Rep. No. 4!7, suPra note 2, at 40 ; H:R. Rep.
No. 227, supra note 6, at 31 ("Voting practices which have a

IFootnote continued next pageJ

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than just new forms of minority vote dilution in amending

Section 2 to its present form, Congress intended to eradicate

any vestiges of prior discrimination still reflected in the

design of current electoral structures. Because of this reme-

dial function of the statute, a plaintiff seeking to establish

a violation should not have to demonstrate that the adoption of

the districting scheme at issue was the.cause of the dilution

of voting strength.l4/ The scheme is unlawful if it is merely

a contributing element in the perpetuation of that dilution.

II. Section Two's Assurance of Equal "Opportunity"
to Racial Minorit ies t,o "EIect Representat ives
of Their Choice" Requires Consideration of a
Group's Direct Voting Strength and Of Its Ability
to Pirticipate Effectivelv in Coalition Politics

A. Section Tvo Is Designed to Protect the
Votinq Strenqth of Minorities as a Group

The power to elect rePresentatives is by its very

nature a group power, since an individual voter cannot advance

IFootnote continued from preceding pageJ

discriminatory result also frequently perpetuate thg effects of
[ast purposeful discrimination and continue the denial to
minorities of equal access to the political processes which was

Eommenced in an era in which minorities were purposefully
Excluded from opportunities to register and vote.).

t4/ See oenerallv Note, Geometry and Geographv: Racial
rinq and the Votinq Riqhts Act, 94 Yale L.J. I89,

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his or her interests unless that person votes with others Sup-

porting the same qandidat"=.f,5l Voting rights certainly can

be abridged by ru1es, such as poll taxes and restrictions on

voter reg istrat ion, that preclude i.ndividuals f rom exerc is ing

the franchise. Yoting rights also can be abridged, however,

through the adoption of electoral schemes which, in their par-

t icular soc iopol i t ical context, result i.n a di lut ion of the

collective weight given to the votes of Eembers of a disfavored

voting group. Indeed, this Court has long recognized this

group nature of voting rights, noting in Revnold v. Si.ms:

"There is more to the right to vote than
the right to mark a piece of paper and drop
It in a box or the right t,o puIl a lever in
a voting booth. The right to vote includes
t,he right to have the ballot counted. .
It also includes the right to have the vote
counted at f u11 value wi.thout dilution or
discount. That federally protected
rigirt suffers subtantial dilution
lwhere al favored group has fu1l voting
itrength [and] [t]he groups n?l/in
favor-have their votes discounted. "-rb./

15/ See Hartman, Racial Vote Di lut i.on and Separq! igJr 
-ofPowers: An Exploration of the Conflict Between the Judiqtal

"Intent" and the Leqislative "Results" Standards, 50 Geo. Wash.
L. Rev. 589,591 (1982); Note, supra note L4, at 198.

L6./ 377 U.S. 533, 555 n.29 (1954). The Court has
employed a group-oriented focus when adjudicating claims of
malapportionment and gerrymandering. See, e.cl., Karchef v,
DaqqLtt, 452 u.s. 725, 744 (r983) (stevens, J., concurring);
iO-. at zg5 (wfrite, J., dissenting); id. at 784 (Powe11, J.,
E'fssenting); Gaffnev v. cumminqs, +r-u.s. 735, 751, 754
(1973); white v. Reqester, 4L2 u.s. 755, 765-70 (1973); Burns
v. Richardson, 384 U.S. 73, 88-89 (1965); Fortson v. Dorsev,
379 U.S. 433, 439 (1955); Gomill j.on v. Liqhtfoot, 354 U.S. 339,
340 (1960).

-8



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365

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359

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t8/
t9/
Cur

Appellants and the Solicitor General suggest that

Section 2 creates a right only to the "opportunity to mean-

ingfully participate i.n the political process,"Y/ notvrith-

standing Section 2's additional guarantee to minorities of the

"opportunity to . . . elect candidates of their choi ce.*&'/

Ignoring that statutory language and relying on Senator DoIe's

single statement in the Senate debates, those parties argue

that the statute encomPasses the right only to nequal access"

!o the political process .19/ That characterization, drawing on

individualistic notions of formal access to the polting booth,

is incomplete and fails to capture fully the intent of Con-

gress.

In amending Section 2, Congress clearly evinced a

goncern not only about the denial of access to individuals who

are members of minority groups, but also about the diminution

of the group voting strength of racial minorities. The linch-

pin of a Section 2 violation is not the formal denial of poli-

tical access to individuals. Rather, as the Senate Report

accompanying the 1982 Act explained, 'discriminatory election

17/ Brief for Appellant at 15; see Frief for Amicus
Cu at 13 (unPrinted).

42 U. S. C. S f 97 3 ( b) ; see page 

-, 
supra.

ee Brief for Appellant at 18; Bripf for Amicus
r General at I4-I5 (unprinted).

-9



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413
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Systems or practices which operate, designedly or othervise, to

minimize gr cancel out the voting strength and political effec-

tiveness of minority groups, are an impermissible denial of the

right to have one's vote fully count, just as much as outright

denial of access to t,he baIlot box. "20/

It is precisely these concepts of group voting

strength and vote dilution that underlay the trial court's

characterizalion of the appropriate inquiry for establishing a

Section 2 violation whether 'a racial minority with dis-

tinctive group interests that are capable of aid or gmelio-

ration by government is effectively denied the political polrer

to further those interests that numbers alone would presump-

tively give it in a voting constituency not racially polarized

in its voting pattern."2l/ Appellants incorrectly characterize

20/ S. Rep. No. 417, supra note 2, at 30. See also id.
at 30 n.119 ("this section without question is aimed at dis-
crimination which takes the form of dilution, as well as out-
right denial of the right to register or to vote.");_i4. a! 30
n.fZO; United St,ates v. Marenqo Countv Cornm., 73l- ?.2d 1545,
1555 (Ilth Cii. 1984) ("We reject any assertion that the stat-
ute as amended applies only to formal barriers to access such
as literacy or rLiidency requirements. The goql of.the Voting
Rights Act has always been to ensure an effective right e! par-
ti-ipation."); Weslev v. CoIlins, 505 F. Supp. 802, 807-08
(u.o-. Tenn. 1985f(the Voting Rights Act protects the integ-
rity of an individual's vote by prohibiting a state from tam-
pg'ing -yith..the-votins pgt"l!iar. 9!,,tl:_?t?Yp^Yi:! Yh:*-}"identif ies. " ) ; Parker, The "Re f Section 2 of. the
Vot ino Rioht , 59 Va. L.
Rev. 715, 761-63 ( I983 ) .

2 / Ginqles v. Edmisten, No.8I-803-CIv-5 (Jan.27,
t98e), luriidictional Qtatement (J.S.) at 14a.

nino the In

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this "definition" employed by the trial court as one that seeks

to guarantee the gutcome of the political process rather than

the opportunity to participate in that process.22/ However,

the trial court's formulation does not guarantee election

results, but rather properly locuses on objective criteria to

shed fight on whether ginorities have been given the

opportunity to participate equalty in the electoral process and

to elect cand.idates of their cho i'ce.4/

B. The Factors Identified in the Legislative
History Address the Ability of RaciaI Minorities
To Exeicise Direct Voting Strength and To Build
Coalitions To Assure Success in the Absence
of Numerical Ma'iorities

We undertake below an analysis of the factors identi-

fied in the Senate Committee Report as relevant for

establishing Section 2 violation in an effort to assist the

Court in appreciating their significance. Heretofore, courts

have examined these factors mechanistically, without attempting

22/ Brief for Appellants at 19-20.

23/ Contrary to the implication in ApPellants' Brief, See
grief for Appellants at 20, the trial court'S use of the Phr.ase
"Folitical power to further those interests that numbers alone
would presumptively give them, " J.S. at 14a, ref ers simply to
the group's opportunity to exercise its voting power to propor-
tionitefy lnffuence electoral outcomes. The trial court thus
embraced-lhe correct legal inquiry: whether a racial group is
denied eq[a] elect.oral opportunity by dilution of its group
voting strength.

- 11



455 to identify the overarching principles that underlay Congress'

467 inclusion of them as relevant to the statutory inquiry. I^Ihile

469 different factors will be more relevant than others depending

470 on the circumstances of each individual case, Congress intended

472 these factors together to be vehicles for assessing whether

474 members of a racial group have the abilitv to elect representa-

475 tives of their choice in proportion to their size in the

47G general populat ion.4/ This ability of a racial minority to

484 influence electoral outcomes can be exercised through two ave-

485 nues, and it is to these two gources of electoral success that

487 the factors listed in the Senate Committee Report are

488 addressed.

489
490 First and f oremost, a racial group may const it'ute a

491 nunerical majority of the voting age Population in a given dis-

493 trict .25/ Numerical voting strength can give blacks or otheil

525 _
Given the different sizes of racial minority groups,

477 Gqual" electoral opportunity necessarily translates into a
+78 goaf of proportionality -- proportionality not of electoral
479 5utcomes-bui of the abitity to affect, them. A group must enjoy
480 a fair opportunity to elect a number of representatives propor-
482 tional to its population size.

493 25/ A racial group's proportion of the tot?l.population
495 A a district is not a useful measure of ascertaining ability
497 to inf luence electoral outcomes. This Court and lor.rer f ederal
498 courts have consistently reCoqnized that, because certain
499 rninority groups have a generalty younger population base and
500 hence a-gmalILr proportion of eligible voters, raw population
5Ot figures may overLstimate the voting strength of a racial

IFootnote continued next pageJ

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476 24/

525
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525

526

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racial rninorities the sapacity to win an election through their

own golidarity. That capacity, however, can be diluted by

electoral structures and practices that intentionally or inad-

vertently advantage some racial groups over others.

second, if a racial group does not have the numerical

strength to decide an election through its own solidarity, it

may nonetheless combine its strength with that of other groups

to build more or less formal coalitions capable of electing

candidates of the group's mutual choice.&/ The greater the

numerical voting strength of a minority group in a district,

the less successful the group must be in aligning itself r,rith

IFootnote continued from preceding pageJ

minority. See e.q., Citv of Rome v. unite9 Statesr a!6 u.s.
fS5, 1985 n.ZZ -(fg6O)1"voting age population statistics are
firobative because they indicate the electoral potential of the
minority community"); Ketchum v. Byrne, 7.40 F.2d 1398, 1412-13
TZtn Ci;. 1984), iert denied sub nom. City Council Y. Ketchum,
frn B4 -6?7 (.Trrne : - f 985 ) : Kirksev v. Board of Supervisors,Fo.8a-627 (June g, fgg5); Kirksey v. Eoard of Supervisors,
5s+ F.2d 139, r50'(5th Cir. 1977).. qf . ziru,ner Yi McTetchum,
geS F.2d t297, 1303 (5th Cir. 1973) !t"jecting district court's
iiew thaL blacks' vote could not be diluted where they gonsti-
Euted a raw population majority). In addition, when a fower
proportion of Lfigible Eembers of minority groups ar9 regis-
ierLa to vote, the direct voting strength of the racial group
is red[ced even further. See, €.Q., KetclJulT,l.v. Byrne, 470 F.2d
at 1413-14. Hence, the fairest measure of direct voting
strEngth would be.based on the proportion of registered voters
in a (iven area. If voting age population is considered
insteEd, gomething more than a simple majority in a district
may be required to enable a racial minority to influence out-
comes through direct voting strength.

R. Dah1, giho Governs 249-50 ( 1974 )26/

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other minorities in order to have the ability to influence

eIectOraI outcOmes. $ere tOo, however, the electOral Structure

and the political and social context in which it operates can

dilute the ability of a racial minority effectively to build

such coalitions.

Several of the factors culled from white and Zimmer

and identified in the Senate Report are aimed at the first

consideration direct numerical yoting strength. A state's

use of gnusually large election districts, majority vote

requirements, anti-singleshot provisions, or other Practices

that may enhance the opportunity for discrimination is Iikely

to dilute the direct voting strength of racial minorities.2T/

Similarly, if a minority group has been denied access to the

candidate slating process leading up to an election, its abil-

ity to.gxercise its numerical voting strength,in the election

is diluted by virtue of its lack of a voice in determining what

candidates will be put before the electorate. A strong hist,ory

of voting discrimination in a geographical area also may result

in decreased voter registration and turnout today, because of

lingering voter frustration and diminished perceived legitimacy

of the election process.4-/

27/
tura I

28/

For a discussion of the implicati.ons of such struc-
mechanisms, gg-g infra at p.-.

a minor i ty
t ics. See

This factor may be relevant as well to the ability of
group to participate effectively in coalition poli-
infra at

- 14



578 Other factors enumerated in the Senate Report shed

579 Iight on whether racial minorities have the ability to build

582 political coalitions in order to participate effectively.in the

583 electoral system. Of loremost relevance is the extent to which

584 voting patterns in glections are racially polarized. Coalition

587 politics presumes that groups are willing to combine forces

588 with other groups having compatible (or at least not

589 antithetical) goals or interests in order to glect candidates.

591 But, where racial bloc voting exists, other numerical

591 minorities giII resist forming coalitions with a racial

593 minority solely because of its race and wit,hout regard for the

595 political expediencies that otherwise underly

595 coalition-building decisions. For example, grouPs that share

597 some economic or other interests with blacks will nonetheless

598 engage in coalition-building only gith whites for racial rea-

500 sons, thereby precluding blacks from fairly and equally

603 participating in the election process.

504
OO5 For similar reasons, the lact that election rhetoric

505 is based on racial appeals provides strong evidence that a

508 racial minority may not fare well in traditional coalition pol-

509 itics. This too suggests lhat race-based considerations may be

5lO the force behind voting choices and that blacks or other racial

512 Binorities do not have an equal opportunity to participate in

5I3 the process. Moreover, the presence of socioeconomic remmants

20
2t
22 - 15



515

515

617

525

627

528

530

531

532

533

534

535

537

538

582
582
518
519
620
52t
523
62q
625

539
54r
543
644
545
646
648
649
549
682

3

20
2L
22

29/
Stat

of past discriminat ion arnong the minority populat ion, such as

poor health, depressed gmployment, and lack of education, will

result in depressed levels of political participat ion.D/ This

d,isparity of socioeconomic status also may engender a lack of

political savvy and a political agenda at variance from those

of other groups in the population, the latter making it less

likely that the other groups will find it in lheir interest to

join forces with the racial minority. A lack of success of

minority-backed candidates also may provide strong, quantita-

tive evidence that, minorities have not Euccessfully partici-

pated in the coalition-building process. Fina1ly,

unresponsiveness of elected officials to the needs of the black

minority also may be some evidence that lhe group is not

engaging successfully in coalition politics .30/

$9, e.q., White v. Regester, 4L2 9.9: 9t t59i glit9d
laarenqo cou@3r F.2d 1545, L557 (llth

of Su , 554 F.2d 139, 145
( sth Cir. L977 ) . " IPJrai.ntrtts need not prove aly rurEner
causal nexus between their disparate socio-economic status and
the depressed leveI of political participation." S. ReP.
No. 4L7, supra note 2, at 29 n.I14.

30/ However, this factor is principally gelevant to the
ilistence of intentional discr iminat ion. See Roqers v. Lodqe,
458 U.S. 513, 625 (L982); United. St?tes-Yr Yafenqo CountY
Eomm'n, 73L F.2d 1545, L57T (lfifr Cir. 1984) ("unresponsiveness
ffif-iimited lmportance under Section 2 . : r"]i N44CP Y,- .

Gadsden County Slfrool B!a!d, 591 F.2d 978, 983 (llth Cir. 1982)
f"neiponsiveness or lack thereof , however,.goes to prov:.ng
discriminatory intent It has nothing.to do with
Tmpact,). ThLs conclusion clearly is appropriate, since lhe

IFootnote continued next pagel

- 16



582
586
687
588
689
590
691
59r
595

695

697

598

700

702

706
705

3
3

652
5s3
554
555
5s5
557
558
659
550
551
553
564
555
657

670
57L
672
673
675
675
678
579
580

20
2L
22

IiI. The Lawfulness of a Challenged Practice
Should Be Determined on the Basis of Its
Implications for these Two Avenues for

. Influencing Electoral Outcomes in the
Political and SocLal Context of the Case

Ihese two avenues for influencing electoral

gutcomes -- di.rect rnajority voting strength and the ability to

parti.cipate gffectively in coalition potitics offer a frame-

work for more coherent application of the Senate Report lactors

and for more reasoned and predictable identification of

Section 2 violations. The weight that should be given to each

IFootnote continued from preceding page

right, created in Section 2 is to elect representatives of one's
ch5ice, not to be fairly represented. See 42 U.S.C. I f973(b);
Marenqo Countv Comm'n, Z3l- F.2d at L572. Moreover, the Senate

tea that "Iu]nresponsiveness is not an
esiential part oi pfaintiff's case" and that "defendants' proof
of some reiponsiveness would not negate plainLiff's showing by
other, m5re- objective factors enunerated here that rninority
voters Eeverth6less were shut out of equal access to the poli-
tical p?ocess." S. Rep. No. 4L7, supfa note 2, at 29 n.115.
fn IigEt of this congressional directive and since the court's
j"ae*6nt was biied n5t on intentional difftion of voting power
6ut-on discriminatory results, gppellants' protest that the
trial court made no exfticit finding concerning responsiveness,
Brief for Appellants at 32-34, has little force.

One of the factors listed in the Senate Report
whether thE poficy gnderlying the use of a standard or practice
is tenuous -l also would appear to be an indirect measure of
intentional discrimination. See Lee CounLv BrangLt=oI N]ACP v.
Citv of OpeITke, 748 F.2d 1473, 14lg.(llth Cir. 1984) ("Con-
@anotherfactorthatisprimaryundertheintent
itandaid - tenuousness of state policies. underlying an qt-1"I9.
Scheme - to secondary importance under the resultS etandard.");
Jones v. City of Lubbo-E!-, 727 F.2d 354, 384 (5tn Cir. 1984).

-L7



703 factor identified in the Senate Report and, correspondingly,

705 Lhe nature of the showing that a plaintiff under Section 2 must

707 make, should turn on an understanding of the manner in which

708 the challenged practice affects the racial minority's ability

709 to lnfluence electoral outcomes through each of t,hese avenues

710 in ghe particular economic and social context of the district

7I2 involved.

7t3
7t4 As we explain below, this approach leads to the con-

7:.S clusion, ,rith respect to single-member districts, that a scheme

7LG that either fractures a racial minority among districts or

717 packs it excessively into a few districts should violate

718 Section 2 where racial bloc voting is significant or ghere

7I9 other factors point to diminished coalition-building Power in

720 the minority group. With respect to multi-member districts,

721 which inherently dilute the voting povrer of atI numerical

722 mi.norities, the proPosed approach suggests that alI such dis-

723 tricts should be scrutinized especially closely to ensure that

725 large populations of blacks or other racial minorities are not

726 being foreclosed from enjoying equal electoral cpportunity.

728
728
728
728
728
728
728
728
728
728

20
2t
22 -18



733
734
735
736
737
738
739
740
740
744

745

746

748

750

753

755
756

757

757

759

760

763

763

765

757

769

779
779
751
752

770
770
779

3

20
2t
22

3L/
1973 ) .

32/

A Single-Member Districting Scheme ThatnFractures" or "Packs" a Racia1 Group's
Direct Voting Strength Should Be Held
Unlawful UnIess Other Factors Indicate That
the Group Is Able to Participate Effectively
in the Coalition-Buildinq Process

SingIe-member voting districts offer an obvious

qpportunity for numerical trajorities directly to exercise group

voting power to elect lePresentatives of their choice. How-

ever, the drawing of single district lines can operate,

"designedly or otherwise,' L-/ Lo artif icially def late the po1-

itical strength of particular groups of voters.

Yoter concentrations can be manipulated either by

lfracturing" the breaking up of cohesive population concen-

trations into a number of separate districts, leaving those

populations with little effective political influence in any of

the result ing distr icts -- or by ]>acking" the draving of

district lines to concentrate a racial group in a single or a

few districts in numbers greatly in excess of the percentage

required to gxercise direct voting power at the balIot box,

thus guaranteeing that the group wiIl have little or no poli-

tical influence in any of the remaining districts.32/

A.

Ziryler v. McKeithen, 485 F.2d t297, 1304 (5rh Cir.

See qenerally R. MorriII, Political Redistrictinq and
19-20 Ll981); Parker, Racial

IFootnote continued next pagel

- 19

Geoqraphic Theory 14-15,



779
780 Through a combinat ion of f ract'uring

781 ability of a cohesive voting grouP directly to

can be effectively minimized.

Robinson v. Commissioners CourL:

and packing, the

influence glec-

As the Fifrh cir-783 toral outcomes

784 cuit noted in

786
789
790
79t
792
793
794
794
795
796
798
799
804
804
807 Yote

809 34/
811 whom were

3

3
20
2t
22

"The most crucial and precise instrument of.
fire . denial of the black milority's
Equal access to political participation,
however, remains the gerrymander of pre:
cinct lines so as to fragment what could
otherwise be a cohesive voting community.
; This dismemberment of the black com-
munity ; [can] halve] the predictable
effect of debilitating the organization and
decreasing the participation"s5Zblack
voters in county government.

dilution can be achieved in this manner even where members

808 of the racial group form a numerical majority of the Popula-

809 tion.34/ Districting patterns thus may ghreat,en the ability of

82t 

-

821
3 [Footnote continued from preceding pagel
3

:.7:- Gerrymandering and l.eqislat ive Reapport ionment, in Minoritv
772 m-81 ( 1984 ) ; cr inton, Further Exprorat i
773 ffiiticat tnicfet, 59 Iowa Ir. Rev. 1 (1973); Parker, County
zz+
ZZS Cerrvmanaeiinq, 44 Miss. L.J. 391 (I973 The Court has often

802 whiLcomb v. Chavis, 403 U.S. !24,176 (Douglas, J., concur-
803

775@dangersoffracturingand.packingintheConst'i-
777 tuLional context. See,9-&-, Burns v. Richardson, 384 U.S. 73
778 (1955); comillion v.Liohtfoot , 364 U.s. 339 (1950).

799 33/ 505 F.2d 674, 679 (Stn Cir. 1974). Such district
801 ffnes "weigh the power of one race more heavily than another."

For example,
black and 33

a state contained
whom were white,

I Footnote

-20

100 voters, 57 of
a five-district sys-

continued next pagel

if
of



821

823

824

825

825

828

840
841

842

843

844

845

847

848

857
857

3

3

8L2
813
8r5
815
817

830
831
832
833
834
83s
835
837
838
839

848
849

3

3

20
2l
22

a group to exercise its direct voting Power. As a result,

single-member districting gchemes in which a "safe" minority

di.strict could have been greated but was not, or in which

minority group members are packed into a few districts in num-

bers far greater than Eecessary to produce "safe" districts,

should be given close scrutiny under Section 2.{/

Since the coalition-building Process is an alterna-

tive means of influencing electoral outcomes, the lawfulness of

such a scheme may turn on the extent to which the racial

minority is able to participate effectively in that Process.

As noted above, probably the most significant impediment to the

ability to build coalitions is the presence of racially

polarized voting.36/ The trial court properly identified this

IFootnote continued from preceding pageJ

tem could in Lheory be gerrlrmandered such that white voters
would outnumber blacks 11 to 9 in each of three districts while
blacks-wouId gutnumber whites 20 to 0 in each of the other tvo.
5ee qenerally-StilI, AlternaliYeE-tg SinqIe-Member Districts,

2+9 (1984).

35/ See Kirkqev v..Board o{ Superyisors of HindE.9ounlY,
gsE F.2d 139;149 (5th Cir. t977\; Ketchgm v. Pvrne, T+0 r.2d
fgge, 1405 (7t,h Cir. 1984) ("In a case where lines are drawn to
estaUtish discrete electoral units and to distribute racial and
Ettrnic populations among districts, the wqYS . in which these
lines aie drawn may become independent indicia of
discr iminatory intent or result. " ) ; M?'iof v. . Treen , 17 4 F.
S,rpp. 325, 352 (n.o. La. 1984) ("ehysical evidence of racial
qerrymandering nay itself furnish strong, objective proof of
vote di lut ion. " ) .

35/ See Hartman, supra note . , aL 595 ("[T]he argument
tfrat the position of the minority is necessarily enhanced by an

IFootnote continued next page]

-2t



857

8s8

853

864

85s

855

871

915
915

3
3

851
852
853
854
85s

858
8s9
850

856
857
858
859
870

873
874
875
875
878
879
882

884
88s
887
888
889

3

3
20
27
22

D iscr i

factor as the nsingle most powerful factor in sausing racial

vote dilut ion."3J-/ The presence of racial polarization, horr-

ever, is necessarily a matter of degree. In gome cases, racial

bloc voting may be so strong as to shut out entirely candidates

representing a racial group that is less than a majority of the

district's voters ,&/ in others, bloc voting rnay impair but not

totally eradicate the minority coalition-building Potrer .39/

IFootnote continued from preceding pageJ

epportunity for 'coalition building' is disingenuous, to say
grr" least, when made in reference to a locale with
Iel1-established patterns of racial division and racial bloc
ioting where ttre minority has been systematically submerged and
ignored. " ) .

37/ J.S. at 47a; Accord United St?tes Y. Yarenqg-9ountv
Co-orunission, 73L F.2d 1545, 1565 (1Ith Cir. 1984); McMiIlan v.
Escarnbia countv, 748 r.2d 1037 (sth Cir. 1984).

38/ See Rooers v. Lodoe, 458 U.S. 513, 523 (1982)l
lena, 675 F.2d 20L, 213 (8tfr Cir.v. Cit

L982); Note, Cons ionificance of the
cts of 1 Yale L.J. 974,

( 1982 )

39/ In the latter situation, the racial minority group j.s
denied an egual opportunity to influence electoral outcomes,
even though t,he racial polarization is not so extreme as to
guarantee the defeat of every minority-backed candidate: $ee,
e.q., City-of Mobile v. Bolden, 445 U.S. 55, 105 n.3 (1980)
(t"tirshal1, J. , dissenting) ; Note, supra note 14, at 200 n.57;
Note, supra at note 38, at 991-92.

Appellants thus are v/rong in suggesting that racially
polarized voting is insignificant under Section 2 unless it
tonsistently prevents minority-backed candidates from winning
any elections. See Brief for Appellants at 40. If that
position were taken Iiterally, the success of a single

IFootnote continued next pageJ

- z2



915

9L7

918

919

920
92L

92r

922

924

931
931

3

3

890
891
892
893
894
895
895
897

899
900
901
902
903
906
908
909
910
911
9t2
9r4
915

925
926
928
928
929

20
2L
22

Such impairment, where the drawing of district Iines has

reduced the racial group's direct voting strength, rdY signifi-

cantly reduce the group's overall ability to achieve its elec-

toral goals.

Fealty to the statutory goal of equal electoral

opportunity ghus indicates that fractionalization or packing of

direct voting strength, combined with significant racial bloc

voting, Eormally should trigger a Section 2 violation.40/

IFootnote continued from preceding pagel

minority-backed candidate would compel a finding that no cogni-
zable rlcial bloc voting exists. But such a single Success
obviously does not foreclose a conclusion that racial
polarizaLion has impaired the minorityl 9 coalition-building
lower. Congress'lwareness lhat tle ability to influence elec-
iions is a matter of degree is plain from its articulation of
the "extent" of success gf minority candidates as one of the
factors under Section 2.

![oreover, the success of minority candidates cannot
be equated to the success of the minority in influencing ghe
election of candidates that represent its interests. 9.1here
voting patterns are racially polarized and whites are in the
majority, black candidates must adapt their positions to gain
thL support of the white voters whose votes control the elec-
tion. Even where Some minority candidates are successful,
therefore, racial bloc voting stilI may Severely undermi.ne the
ability of minorities to elect candidates truly 9f their own
choice. See Avi Ia, Mobi le Evi. is in The Riqht to

9I Yale
L.J. 974,

40/ See Kirksgv v. Foard of , Sr,rqgrYisors =o! Hinds CoYntv, 
-

SS+ F.2d. 139; I51 (5th Cir. 1977) (finding of fragmentation of
concentrated black minorigy coupled with racial bloc voting
suff icient to render unconstitutional single-districting plan
designed to remedy previous finding of dilution).

-23



931

933

934

93s

937

938
939

940

941

942

943

944

946

947

949

951
952

9s3

9ss

9s5

957

959

950

983
983
9s0

951
952
983

3

20
2t
22

Since the greater the reduction in direct voting strength lhe

more coalition-building that will be needed to affect electoral

outcomes, the degree of racial bloc voting that plaintiff must

show should decrease as the degree of demographic fragmentation

or packing increases.

lven if racial bloc voting is not present to a degree

that is significant in this context, other factors may indicate

that the opportunity of a group to engage in coalition potitics

blacks or other minorities gontinue to suffer serious socioeco-

nomic effects from past discrimination, or if electi.ons are

marked by race-based eppeals, for example, those factors may

serve as evidence that such minorities gre unable to form

coalitions that wilI influence electoral outcomes.4L/

One form of evidence of unequal electoral spportunity

obviously is a lack of success in electing minority candidates

or others endorsed by the minority community. The greater the

disparity between the proportion of such elected officials and

the minority's proportion of the voting-age population, the

stronger the inference that minorities are not effectively

participating in the coalition-building process .+2/ 4

4L/ See p supra.

42/ See White v. Reqister, 4l? U.S. 755, 255-59 (1e73);
See alsozimmer v. t"tcxeithen, 485 F.2d 1297 (Stfr Cir. 1973).

IFootnote continued next page)

-24



983

984

985

986

987

989

990
991

992

993

997

1000

1003
1003

3

3

964
955
965
968
91L
9'12
973
974
975
976
978
979
980
981

989

994
995

r001

20
2L
22

consideration of electoral outcomes qs evidence of the inabil-

ity of a racial minority effectively to build coalitions, of

course, does not amount to the creation of a statutory right to

proportional lepresentation. Congress made clear that outcomes

are a relevant consideration in identifying Section 2 viola-

tions .43/

At the same time, it is also clear that the "election

of a few minority candidates does not 'necessarily foreclose

the possi'bility of dilution of the black vote .' "44/ Appel-

lants' guggestion that recent electoral successes by blacks bar

a f inding of unequal epportuni:-y9{-/ thus cannot be correct.

IFootnote continued from preceding pagel

NAACP v. Gadsden Countv School Boafd, 69L F.2d ?78-111th Cir.
reichooIboarde1ectionsyStemunIawfuI1ydi1uted
voting power where court found racial polarization and persi!!_
ent underrepresentation in office). Note, gupre note 14, at 205
("Togeth€f, ...these two factors -- disparity Ibetween elected
Eandidates and proportion of populationl and racial
polarization should be sufficient to {aise the presumpti.on
ttrat proportional electoral opportunity does not exist, and
shift-the burden of proof to defendants."); cf. Note, supra
note 38, at, 998 (where racial bloc voting and minority
underrepresentation coexist in at-Iarge setting,
"discriminatory effect is gonclusively proven because these
conditions cannot exist together unless the minority is unable
to elect candidates of its choice.").

43/ See note 
- 

supra.

y-/ S. Rep. No. 417, suPra note 
-,Timmer v, l4cl(e l!-he-n , 48 5 F . 2d L297 , 13 0 7

at 29 n.115, quotinq
(5rh cir. 1973).

See Brief for Appellants at 24.45/

-25



1003

1 004

1005

1005

1007

10 08

1009

1010

r 012

1013

t027

1028

1030

10 38
10 38
10 38
1038
1013
1014
1015
1019
102 0
102 r
t022
1023
t024
102 5

1028

10 31
1032
1033
1035
1035

20
2t
22

lhe races of the election winners are only one Piece of

evidence of whether a racial minority enjoys equal cpportunity

to influence electoral outcomes. Just as victories by white

candidates may, in Iight of aI1 other evidence, be consistent

with a finding that blacks enjoy equal voting power, victories

by particular black candidates may be consistent with a finding

that blacks' opportunit,y to affect electoral outcomes is

diluted. A black candidate's success at the polls may, in

light of all the evi.dence, be explained by a variety of

factors .46/ Ehile failure to elect a proportionate number of

lepresentatives does not in itself trigger a Statutory viola-

tion,47/ neither does some measure of success in a particular

election bar such a f inding.&/

46/ For example, white politicians may find it.expedient
to support a "tokenn minority rePresentative whoSe views they
find acceptable. See note _ supra. Or they may even support
a minority candidate in order to thwart a }egal challenge to
the electoraf scheme on dilution grounds. SSS Zimmer v.
r'rcKeithen, 485 F.2d 1297, I307 ( 5th Cir. 1973 ) . The latter
fosdibility is especially likely where, as here, the electoral
scheme was challenged prior to the recent Successes of the
minority candidates. See Ginqles v. Edmisten, J.S. at 37a
n.27 .

47/ See note , supra.

48/ Electora1 successes proportionate with a minority
group's representation in the voting age population over a sig-
nititant period of time might, of course, constitute substan-
tial evidence that the group enjoyed equal electoral
opportunity, depending on the other facts of the case.

-26



L042
r043
r 044
1 045
I 045
1 045
1 048
1 049
10 51
10 51
10 53

r054

1055

10 57

r059

10 61

10 54

r083

I 085

1 086

108 7
108 7
108 7
I 087
1 054
106 6
10 68
I 059
10 71
107 3

10 74
107 5
L077
10 78
10 79
10 81
108 2
1083

20
2t
22

Multimember Districts That Subsume Large Minority
Populations Dilute the Numerical voting Power of
Sutfr Groups and Should Be Closely Scrutinized
Under Sect ion 2.

MultiMember Districts Inherently Dilute
the Direct Votinq Strenqth of Minorities.

The creation of a multimember or at-large district

can gubstantially reduce the direct voting power of a racial

group subsumed within the district, particularly where the

group could have constituted a majority of one or more of the

single districts that, could have been created in lieu of the

trultimember one. The use of multimember districts, though not

unl'awful per se under Section 2,9/ thus has an inherently

dilutive effect on the voting power of racial (or any other)

groups who constitute numerical minorities within the dis-

tr icts .

u./ H. R. Rep. No. 227, supra note 5, at 30; g. Rep. No.
417, supra note 2, at 23-24,27. In so concluding, Congress
appears to have followed Several lupreme Court cases t,hat had
abltined to hold at-large districting unconstitutional per se.
See tlhite v. Reqeiter, 4L2 U.S. 755, 765 (1973). (uphol{ing qon-
EtTtutionafiLy of multimember district where failure of blacks
to elect candidates of their choice resulted from impact of
party poli.tics on elections) ; t'thitcomb v. ChaviE, 40? 9t!: !24,
iqZ (f-gz:.); Fortson v. Dorsev, 379 U.S. 433, 438-39 11955); Ftlli
also zimmer v. t,tcreithen, +eS F.2d L297, 1394. ( Stfr eir. 1973 ) .
fhose cases, of course, Ieave o.pen the possibility that an
at-Iarge district might be unconstitutional because it operated
[nder [fre circumstances to dilute the voting strength of racial
6inorities.

B.

1.

-27



108I

108 9

10 91

1093

10 94

r096

1097

110 0
110 3
1r04
1105
1105
1r07
11 08
1I09
1110
111r
1112
111 3
114 3

114 3
114 3
1I4 3

1114
1115
1117
1118
112 0
tL22
112 3
Ltz4
1r25
112 8
113 0
11 31
113 3
113 4
113 5
113 7
113 9
114 0

20
2t
22

Ln an at-Iarge system, a majority of the voting popu-

Iation of the district controls the election of each of the

at-Iarge legislators. The Court has recognized on numerous

gccasions that such a "winner-take-al1" voting system by defi-
nition denies to every gumerical minority group the proportion-

ate direct voting power it could have in single-member dis-

tricts. In Roqers v. Lodqe, the Court explained:

:At-large voting schemes and multimember
districts tend to minimize the voting
Etrength of minority groups by permiit-ing
lhe political majority to elect all repre-
sentatives of the district. a distinct
minority, whether it be a racial, ethnic,
economic or political group, Rdy be unable
to elect any representatives in an at-Iarge
election, yet may be able to elect geveral
representat ives i.f the poI it ical gnit il
ai.viaea into sinsle-memlet 4i=iii;li:"fl/

50/ 458 U.S. 513, 515 (1982). See also Citv of.Mobile v.
sotden, 446 U.S. 55, 55-65 (1980) (plurality opinion)
(criticizing at-large systems for naturally submerging
minorities); Connor v. Finch, 431 U.S. 407, 415 (L977 ) (same);
I^Thitcomb v. Chavis, 403 U.S. L24, 158-59 (197I) (same); Jones
v. citv of i,ubbock , 727 F.2d 364, 383 ( Stn Cir. 1984) ( "Even
under the best of circumstances, Et-Iarge distr j.cts tend to
debase the value of a minority's voting strength. " ) ; t^ial1ace v.
House, 515 F.2d 5L9, 625-27 (5th Cir. 1975) ("IM]uIti-member
districts have a peculiar capacity to deny representation to
racial or political minority groups which could or would obtain
such representation if the polity in which they Iive were
divided instead into single-member constituencies."), vacated
on other qrounds, L25 U.S. 947 (1975). See qenerallv Bonapfel,
Minoritv Challenqes to At-Larqe Elections: The Dilution
ProbIem, 10 Ga. L. Rev. 353 (1975); Carpeneti, Leqislative
Apportionment, Multimember Districts, and Fair Representation,
120 U. Pa. L. Rev. 556 (1972); Note, supra note 38.

-28



114 5

1I4 7

115 0
1151

tt62

115 3

1154

116 5

LT67

1158

1176

LL17

117I

II82
118 2
118 2
118 2
118 2
114 9
1151
115 2
115 3
1155
1157
11s8

1168
117 0
1171
tt72
117 3

117 8
117 9
118 0
118 r

20
2L
22

Congress also recognized the inherent dilutive effect of

multimember districts in enacting the 1982 act.5f,l

At-trarge systems also tend to dilute the voting

strength of racial minority populations in more subtle ways.

Multimember districting, for example, Qontributes to the elec-

tion of legislative representatives lacking close ties to the

constituents in particular gommunitiesi hence, identif iable

constituencies have no one member specifically charged with

representing their intere =t=.2/ Multi-member d.istricts also

cont,ribute to voter confusion because ballots in at-large elec-

tions necessarily are more bulky and difficult to compre-

nend.53/

5L/ The House Report explains that "at-large elections
are one of the most effective methods of diluting minority
IvotingJ gtrength in the covered jurisdicti.ons, " H. R. Rep.
No. 227, supra note 5, gt 18, and acknowledges that "numerous
empirical studies based on data collected from many communities
have found a strong link between at-large elections and lack of
minority representation." Id. at 30.

52/ This effect is heightened if the scheme has no provi-
sion requiring that, even though elected at large, members must
come from each of the implicit wards within the at-large
scheme. See tlhite v. Resester , 412 U.S. 755, 756 n.10 (1973);
Zimmer v. McKeithen, 485 F.2d L297, 1305 (5th Ci.r. 1973).

53/ See, e.q., Connor v. Finch, 43I U.S. 407,415 (f977);
ehapman v. Meier, 420 U.S. 1, 15 (1975); Whitcomb v. Chavis,
403 U.S. 124, 159 (197I); Wallace v. House, 515 F.
(5rh cir. 1975).

519, 5272d

-29



118 3 The inherent dilutive effect of the multimember dis-

1184 trict can be magnified or reduced by a state's adoption of

1I85 addit,ional structural features. The addition of certain

1185 features identified in the legislative history of the

1187 1982 a.ct93/ can strip away further a minority's opportunity

1190 to influence elections. A majority-win rule, imposed gt either

1192 the general election or primary level, f or example, -!,equires a

1193 run-off if no gandidate receives more than half of the votes

1195 cast in an election. Such a requirement prevents a minority

l;.97 candidate from winning where the majority vote is split between

II98 two majority candidates. Numbered post provisions designate

1199 each open seat in a multimember election by a separate number

1200 and allow each voter to vote for only one candidate for each

1201 seat. Such provisions also prevent a minority from

L2O2 concentrating its votes to take advantage of a split among

1203 majority group voters. Anti-singleshot voting requirements,

:-2O4 too, by requiring each yoter to cast a ballot for as many can-

1205 didates as there are offices to be fi1led, prevent targeted

L2O6 voting, forcing racial minorities to vote for white candidates

l2O7 where the number of open seats exceeds the number of minority

1208 candidates. EinalIy, dtr election scheme under which the terms

1209 of offices are staggered minimizes the potential for

1213
1213
LL88 54/ See note 8 supra. See also H. R. Rep. No. 227, supra
1188 note 6, at 30; S. Rep. No. 417 , supra note 2, at 29.

20
2l
22 -30



l2I2 vote-splitring among the majority group by making fewer seats

1213 open at any given time .55/

the other hand, other structural features gan com-

the naturally dilutive effects of an at-Iarge sys-

include sumulative vot tng56-/ or limited voting pro-

Qr a state can take a hybrid approach by

12 58
12 58
L2t3 55/ This Court and commentators have emphasized the

L229
1230 On

L232 pensate for

1233 tem. These

1251 cedures .57 /

character of each of these structural pro-
-Roqers v. Lodqe, 458 U.S. 513, 527 (1982);

f Rome v. U , 446 u.s. r5G, rB4 n.2o (1980);
wffier, Ll2 U.S. 755, 756 (1973); ?immer.Y.

r.2d L297, 1305 (sth cir. 1973); Davidson,
, ! -- ? - laauinority vote oilution, i!, in Minoritv vote Dilution 5-7 (198a);

1222 Dilution Problem, 10

t2t4
1215
1215
t2t7
L2t9
t220
L22t

L223
L224
t225
l-226
t227

L236
t237
12 38
1239

12 41
t242
L244
1247
L248
t2E9

e Rioht , 25 Vand. L. Rev.

Note, supra note 38, at 993'94,

56/ !.lith cumulat ive vot ing, voters in Bult imember dis-
tricts are permitted to cast multiple votes for a single pre-
ferred candidate. By enabling minority groups to concentrate
their votes on a single or a few minority candidates, cumula-

l24O tive voting procedures enhance minority voting strength. See,
€.e., UniLqd States v. Marengo Countv Comm'n,731 F.2d 1545,
1550 n.24 (IIth Cir. 1984); 8. Dixon, Democratic Representat
523-25 (1958); E. Lakeman,
Note, ive Votino S for UnlawfuI
Et-f,arqe Statems, 92 YaIe L.J. 144 (1982); {ote, }Ef irmative
@ctoral Reform, 90 YaIe L.J. 1811 (1981).

L25I 57/ Under a limited voting procedure, citizens are
t252 allowed fewer votes than the number of offices to be fiIled,
1253 minimizing the "winner-take-a1I" bias inherent in multimember
1254 systems. See, g-:.-fu-, United States v. Maf enqo Cguntv Comm' n,
1255 731 F.2d 1545, I560 n.24 (lIth Cir. f984); R. Dixon, ElJlIg
1255 note 55, at 52L-23.

5ZT, E53n.fZs (1973); Howard and Howard, The Dil9mrya of the
Votinq Riqhts Act -- Recoonizinq the Emelging-Poli!ic?I_,-.

1515, 1558-59 n. I84 ( 1983 ) ;

20
2t
22

inherently dilutive

- 31



12 58

t259

12 50

L27 4

t27 6

L277

t278

r281

L282

1283

L284

1285

t286

L32L
13 21
t250
I2 5I
L252
t263
L26+
t265
L256
L267
L269
L259
1270
L272
L273

L278
t279

L285
L287
132r

3
20
2t
22

superimposing an at-large scheme on top of a system of

single-member districts, So that some representatives are

elected according to each method.58/ The use of such proce-

dures, under appropriate circumstances, enables states to

"retain the perceived benefits of. at-large lepresentation while

providing opportunities for effective trinority participa-

tion."59/ where these compensatory mechanisms are Present, a

multimember scheme may give rninorities an effective opportunity

tO influence electoral gutcomes. However, absent such compen-

satory mechanisms and particularly if additional features

exacerbating dilutive effects are present -- multimember dis-

tricts should be regarded as inherently suspect under

section 2 .60/

58/ For example, a legislative body with nine members
might have six members elected by districts and three elected
at Iarge. Under proPer circumstances, such a system may not
dilute minority voting strength. See Citv of Mobile v. Bolden,
446 U.S. 55, 82 (Blackmun, J., concurring); United States v.
Marenqo Coun 'o, 73t F.2d 1545, 1550 n.24 (1lt.h Cir.

v esvi1le,505 F. Supp.559 (1985)
(conseni decree establishing hybrid system of multimember and
Eingle-member districts used to cure prior minority vote dilu-
tion caused by at-Iarge system standing alone); James v. Citv
of Saiasota, 

- 
F. Supp , No. 79-L031-Civ-T-GC (o.c. FIa.

EEn. 25, 1985) (hybrid proposal found to cure prior minority
vote dilution caused by at-large system standing alone).

59/ United States v. Marenqo Countv Comm'n,73L F.2d
1545, r550 n.24 (1Irh Cir. 1984).

50/ Of course, in certain Iimited instances, replacing an
at-targe system with a S,ingle-districting scheme might operate

IFootnote continued next pageJ

-32



I 321
L324
L325
L325
L327
1 328
13 31
I3 3I
L332

1337
13 37

3

3

I 288
L289
L290
L292
L293
L294
L294
t295
L295
r297
L298
13 01
1 302
r 303
I 304
1 305
1305
r307
r308
I 309
r3L0
1311
L3t2
1313
I 314
r 315
r 315
1 317
I 318
I 319

20
2L
22

2. The Need for Proof of Racial Polarization
or Other Factors Impairing a Minority's
Ability to Build Coalitions Should Be
Less Where Concentrations of lainority
Votes are Subsumed in MultiMember Districts

lhe dilution of a minority's direct voting strength

I333 by Euttimember districts necessitates greater success in

1335 coalition-building if a racial minority is to influence

IFootnote continued from preceding pagel

to dilute minority voting strength even further. If the size
of a racial group is very sma1l or its members are spread rela-
tively evenly throughout the relevant political unit, then no
singla-districting scheme can be established which wiIl enable
tfre-group to exert a strong political influence even in a gin-
gfe aistrict within a single-districting scheme. Seer 9.Q.,
Dove v. Moore, 539 F.2d 1152, 1155 n.4 (8tfr Cir. L975)_(9n-
trofaing at-f arge system against dilution claim where " Ia]s a
practical matter, it is not clear that single-member wards
would enhance lhe political strength of the black voters
Ib]ecause of their geographic distribution" ) ; Under such cir-
cumstances, although the at-Iarge syStem still dilutes Einority
voting strength compared to the group's proportion of the popu-
Iation, separation of the multi-member district into single
districts would undermine the policy behind the Voting Rights
Act. see Zimmer v. McKqithen, 485 F.2d L297, 1308 (sth Ci.r.
1973) -Itrrre piEFerenCe Ifor single-districti.ng schemes] may
also yield where a district court determines that multi-member
districts afford minorities a greater opportunity for partici-
pation in the political processes than do single-member dis-
tricts. In the process of making such a determination, a court
need not be oblivious to the existence and location of minority
voting strength."). Fina1ly, in rare instances, the use of a
multimember districting scheme wilI be constitutionally com-
pel1ed by the one-person-one-vote requirement. See Zimmer, 485
F.2d at I308. Absent t,hese gnusual situations, the preference
for "safe" single-districts over multi-member districts
reflects Congress' SoliticaI judgmert," Edmisten v. Ginq1es,
J.S. at 18a, as to the most appropriate vehicle for identifying
and eliminating the vestiges of racial discrimination.

- 33



1335 glection outcomes. As a result, any racial bloc voting will be

1337 especially destructive of a minority's oPportunity to elect

1339 Iepresentatives of its choice. This Court has recognized that:

1 341
L344
I 344
1345
134 5
1347
134I
134 8
1351 The amount of racial polarization that is necessary to warrant

1352 g conclusion that a group's ability to participate in coalition

1353 politics is impaired should be even less than would be required

1354 in the context of single member districts. Indeed, where a

1355 concentrated population of minority voters has its direct vot-

1357 ing strength diluted through submersion in a multimember dis-

1359 trict, and where gtections in that district have not produced

1350 success by minority candidates on a level proportionate to the

L362 minority's share of the voting age population, dtrY evidence of

1353 more than de minimi.s racial bloc voting gormally should suffice

1355 to show a Section 2 violation. The same should be true with

1357 respect to other factors evidencing impairment of a minority's

I358 opportunity to engage in coalition polit,ics .62/

1 379
t379

"The minority's voting power in a
multimember district is particularly
diluted when bloc voting occurs and ballots

il:":5!I2rone 
strict majoritv-minoritv

L347 6l/ Roqers v. Lodqe, 458 U.S. 513, 515 (1982).

1359 52/ See, e.q., United States v. Morenso Countv qomm'q,
1371 731 F.2d 1545, 1555 (lIth Cir. 1984); $.lesIey v. Collins, 505
1373 f. Supp. 802,812 (O.C. Tenn. 1985) ("a finding thaL a state
L379

3
20
2L
22

IFootnote continued next pageJ

_ 1AJ:



138 2
138 3

1384
r385
1 389
1 389
13 90

13 91

t392

1 39s

r 397

13 99

14 01

t402

L402

1403

1404

r40 5

1407
140 7
L407
t407
1407
r407
L407
1407
1407

3

3

t37 4
1375
L37 6
1377
1378

r394

20
2t
22

63/

Iv. Consideration of the TriaI Court's Findings
In Light of These Two Avenues for Influencing
Electoral Outcomes Demonstrates that the
Court's Judqment Should be Affirmed.

In reaching its conclusion that the electoral schemes

at issue violated Section 2, the trial court conducted an

"intensely local gppraisal" fr-/ of. the structure and operation

of the challenged schemes. When the court's findings of fact

relating to the Senate Report factors and its conclusions of

Iaw are considered in relation to the statutory Iramework

described above, which focuses on the ability of racial

minorities to exercise direct voting strength and to build

coalitions to assure success in the absence of numerical

minorities, it becomes clear that blacks in the districts in

question do not gnjoy equal electoral opportunity. The judg-

ment of the trial court therefore should be affirmed.

IFootnote continued from preceding pageJ

practice imposes a disproportionate impact on
in a social context characterized by a history
tion against blacks at the polIs, warrants the
sumption that a violation of the Voting Rights
occurred."). See supra at p.

blacks and gccurs
of discrimina-
rebuttable pre-
Act has

glhite v, Resester, 412 U.S. at 755.

- 35



1413
1414
1415

1411 A. The Fracturing of a Concentration of Black
L4l2 Voters and the Presence of Racial Polarization

in Senate District No. 2 Operates to Deny Black
Citizens Equa1 Opportunity to Influence the
PoIiticaI Process.

r 419
1419
t42O The trial court found severe fractionalization of the

L42l black population in and surrounding Senate District No. 2, not-

l42:- ing that had district Iines been drawn differently, lhe concen-

1424 tration of black citizens located in Senate District No. 2 and

t426 gdjoining District No. 5 could have constituted an "effective

L427 voting majority' in a single-member'distr ict.9A/ Because the

L429 black population had been ]f ractured" into tr*o separate dis-

1431 tricts, however, black citizens constituted only 46.2* ot the

1432 registered voting'population in Senate District No. 2.55/ fne

t434 extent of this demographic fragmentaLion is sufficient to

1435 thwart efforts by blacks in Senate District No. 2 lo exercise

1437 their direct voting strength to influence electoral out-

r438 comes .56/

1444
1444
t444
L4L4
L444
1444
t428 64/ J.S. at 2la.

1433 65/ J.S. at 20a.

1438 56/ The court specifically noted that even the creation
1439 of a "safe" district still would not suarantee black citizens
1440 an equal opportunity to elect candidates of their choice, since
1441 they would constitute a bare voting majority in the
1442 hypothetical district. Id. at 2Ia.

20
2l
22 - 35



L444

1445

144 6

L447

1448

I449

14 50

14 51

1453

L454

l4 55

1455

1459

14 60
14 51

L462

1453

L454

1465

L457

14 58

r459

I477
L477
t452

1465

19
20
2t

. The trial court's findings on racial polarization in

District No. 2 also demonstrate that blacks in this district

are hindered in their ability to invoke the alternative,

coalition-building method of achieving electoral success. The

trial court found, based upon unchallenged and unrebutted tes-

timony by expert witnesses and "experienced locaI political

observers," that "severe and persistent racial polarization in

voting' persists in Senate District No. 2.il/ tthen considered

in conjunction with the "fracturingn found to exist in Senate

District No. 2, this finding of racial polarization should be

sufficient to gupport the trial court's determination that the

black voters in this dist,rict do not enjoy equal opportunity to

elect candidates of their choice.

This conclusion is underscored by several additional

f indings that provide evidence of the lack of opPortuni.ty of

blacks in this district to engage in coalition politics. For

example, the trial court found that many elections were charac-

terized by racial appeals.6S/ In addition, the court identi-

fied a long history of racial discrimination in education,

employment, housing, and health care that resulted in signifi-

cantly depressed leveIs of socioeconomic weII-being for

57/

58/

Id. at

Id. at

45a.

31a-32a.

-37



L470

L477

t479

r480

I 481

t482

148 4
148 5

148 6

1487

148 8

1489

14 90

r491

t492

I493

L494

L497
L497
1470
L47L
L472
t473
L475

t477

1483

148 8

r491

I9
20
2L

70/

7t/
72/

73/

blacks ,69/ giving "rise to gpecial group interests centered

upon those factors ."70/ The court found that these present

effects of past discrimination "hinder lhe group's ability to

participate effectively in thl political process and to elect

representatives of its choice as a means of seeking govern-

ment' s awareness of and attent ion to those interest s ."L'/

lhe trial court also found a relative lack of success

of black-supported candidates in Senate District No. 2. No

black person had ever been elected to the State Senate from the

area covered, by this district .72/ ![oreover, where black candi-

dates had experienced minor successes in State House elections,

black voters had constituted a voting majority of the popula-

tion.73/ Based on its careful scrutiny of the environment in

which these elections took place, the trial court concluded

that."relative !o white candidates running ,,o, the same of f ice

at whatever leveI, black candidates remain at a disadvantage in

59/ Id. at 25a-29a. This legacy of past and continuing
discrimination, creating a disjunction between the current PoI-
itical agenda of blacks and whites, would significantly reduce
the impetus for whites in Senate District No. 2 to engage in
coalition-building.

Id. at 29a,

IO.

Id. at 35a.

See id.

-38



1495 terms of lelative probability of success ."74/ These additional

L497 findings provide overwhelming support for the trial court's

1499 gonclusion that Section 2 is violated by the creation of Eenate

1501 District No. 2.

150 2
1505 B. The Submergence of Cohesive B1ack Populations
L507 Into MuIti-Member, At-Large Districts Plagued
1 508
150 9
1 5r0

By RaciaI Polzrization Impermissibly Dilutes
The Opportunity of Blacks to Elect Candidates
Of Their Choice.

I 514
1 514
1515 After analyzing the structure and speration of each

1515 of the challenged multimember districts, the trial court con-

1517 cluded that the creation of such districts abridged the voting

I5I8 rights of their black residents in violation of Section 2,

1520 Examination of t,he trial court's f indings of f act and gonclu-

1521 sions of 1aw in light of the statutory framework discussed

1522 above supports this qonclusion. The evidence firmly demon-

1523 strates that blacks in these mult,imember districts are being

1524 denied equal electoral cpportunity, since they are being fore-

1525 closed from employing direct voting strength to influence out-

1526 comes and hampered in their ability to engage in coalition pol-

L527 itics.
1528
L529 The presence of certain structural features of the

1530 challenged electoral scheme will gxacerbate the already

1533
1533
1496 74/ Id. at 37a.

l9
20
2L - 39



1532

1533

r534

1535

1535

1537

1555

1 558

I 559

I 559

I 561

155 3

I 555
1 555
155s
1 555
156 5
1537
1 538
r540
1 541
L542
1 544
154 5
r545
154 7
154 8
154 9
r550
1 551
1553
15 54

1 s55

1553

19
20
2t

76/

77/

inherently dilutive effect of these multimember districts on

the direct voting strength of their black residents. First,

North Carolina's majority-vote requirement for al1 primary

elections presents an "ongoing impediment to any cohesive vot-

ing minority's epportunity to elect candi'dates of its

choice . ."75/ Second, the State's lack of a subdistrict

residency requirement ,76/ h^t enabled almost all of the elected

representatives to come from outside the predominantly black

neighborhoods of the multimember districts. The dilutive

effect of these features are further compounded by the fact

that the number of officials elected through these multimember

systems is unusually large .77 /

75/ Id. at 30a. Despite lppellants' claim to the con-
trary, it is irrelevant whether a black candidate ever actually
lost an election because of such structural features. See
Brief for Appellants at 27-28. Such an argument no! olly
IgnoreslhaTact that racial vote dilution c?n be iignificant
without being absolute, but it fails to consider the
interrelationship of this !eature with other impediments to
btack electoral success. For example, the trial court noted
that the majority-vote requirement is especially damaging to
blacks' ability to elect candidates of their choice where a
racial polarization exists. See J.S. at 30a. The trial court
also noted that, in recent years, black candidates for Congress
and Lieutenant Governor who led in the first Democratic primary
lost in the run-off election mandated by the majority-vote
requirement. Id.

Id. at 30a.

Ito be supplied]

- 40



1 565

r557

1558 
.

1559

157 0

I571

L572

157 3

r.574

157 5

158 r

r582

1 590

t592

1s93

159 5

1596

I 597
1 597
1575
L577
1 578
r579

158 3
158 4
158 5
1587
1588

1 595

19
20
2L

The findings of the trial court with respect to the

populat ion demographics of the impl icated rnult imember districts

leave no doubt that blacks are being deprived of the

opportunity to directly exercise their voting strength to

achieve electoral success. The court found that population

concentrations of black citizens within the boundaries of each

of the challenged districts were in fact sufficient to have

created single-districts where blacks would have had the

opportunity to glect candidates through their own solidar-

i: ;".7-9-/ The submergence instead of these black concentrations

into large multimember districts in which blacks constituted a

relativety smaIl numerical minor ity12/ greatly diluted the

direct voting strength of these minority voters. Moreover, the

trial court found the level of political participat,ion by black

citizens significantly {epressed as a result of prior discrimi-

nation restricting the ability of blacks to gxercise the fran-

chise.80/ The resulting registration gap between blacks and

ru/ Id. at t9a-20a. Had single districts been percent
created, blacks would have constituted majority populations
ranging from 55.1 percent in House District No. 35 to 70.9 per-
cent in House District No. 23.

79/ See id. at 19a. The percentage 9f blacks in the
totat population of each multimember district ranged from 2L.8
percent in House District No. 21, to 35.3 percent in House Dis-
Lrict No. 23. The percentage of blacks that were registered !o
vote in these districts ranged between 15.1 and 28.5 percent.

80/ id. at 24a-25a.

- 41



t

l-5g7 whites has even further diminished the direct voting strength

1598 of the black population in these districts. Given these insu-

1500 perable barriers to the exercise of direct voting power by

1501 blacks, close scrutiny is warranted to ensure that blacks are

L6O2 capable of engaging in coalition politics in these districts to

1503 the extent necessary to compensate for t,he dilution of their

1504 direct voting strength.

150 5
150 5 The trial court's findings gmply demonstrate that

1507 blacks in these multimember districts are frustrated in their

I508 ability to form coalit,ions, and are thereby Precluded from

1509 enjoying equal electoral opportunity. Aft,er reviewing

f510 extensive stat,istical data on racial voting patt,erns in each

I511 district, qnd considering direct testimony by loca1 political

1513 observers, the trial court found significant racial

1514 polarization in each of the challenged districts .81/ Not only

1515 did the court find an almost unprecedented correlation between

1615 the race of voters and the race of the candidates for whom they

1618 voted ,Q-/ 5u1 Uhit,e voters consistently exhibited a strong

1520 reluctance to vote for black candidates under any circum-

1521 stances. The trial court further found that white voters

L522 almost universatly ranked black candidates last or next to last

L524
1524
t5I5 81/ id. at 38a-45a.

L6LA 82/ Id. at 38a-40a & n.30.

19
20
2t -42



t523 among all candidates, and that most refused to supPort black

L524 candidates in general elections even when they were running

t625 against party epponents. In fact, many white goters refused to

1627 vote for black incumbents even where the elections !/ere

1528 uncontested.Ell The presence of such severe racial

1629 polarization should be sufficient, given the dilutive features

1531 of these multimember districts and their demographic and his-

1632 torical contexts, to support the trial court's findings that

1533 the creation of these multimember districts would violate

1534 Sect ion 2.W/

1697
L597
t628 83/

L634 84/

3
I9
20
2l

Id. at 40a.

Id. at 45a. Both Appellants and the Solicitor
1536 general assert t,hat the trial court employed an overly l"*
1637 legal definition of racial bloc voting. Each ctraracteri.zes the
1538 Eourt as applying a simplistic threshold criterion for the
1539 definition of racial bloc voting. See Brief for Appellant
1540 ft 35 (court employed standard vhereby "racia1ly polarized vot-
1541 ing occurs whenever less than 50U of the white voters cast a
L642 battot f or the black candidate" ) ; Friqf for Amicus C-uri.ae
1643-@at26(unprinted)(courtemp1oyedstandard
1544 whereby racially polarized voting occurs whenever the results
1545 of an etection would differ depending on whether it was held
1546 among gnly the white voters or only the black voters). These
1547 characterizaLions of the trial court's approach attenpt to
1548 ascribe to the court q mechanical definition of racial bloc
1550 voting. This Bisconstrues the court's actual inquiry. As
L652 noted-above, the existence and impact of racial bloc voting is
1553 a question of degree, not kind. See supra at 

-. 

The trial
1554 court did not mechanistically apply a single legal standard to
1555 establish bloc1555 establish bloc voting but, rather conducted an intensely locaI
1555 appraisal, goncluding in each instance that racial bloc votineach instance that racial bloc voting
1557 wii sufficiently strong to diminish significantly the ability
1559 of blacks to elect their favored candidates. J.S. at 45a.

L597
IFootnote continued next pageJ

- 43



ri

t697
15 98

15 98

1700

17 01

1703
1703

3
3

t662
1553
1555
15 55
L557
1659
r570
L67l
t572
L673
L67 4
157 5
L57 6
1677
15 78
t579

The trial court's additional findings on the preva-

Ience of subtle racial appeals in election campaignsE/ and on

the disadvantaged educational, emplolrment, and health status of

blacks stemming from past intentional discrimination.9Sl

IFootnote continued from preceding pagel

In challenging the trial court's finding of racial
bloc voting, both the Appellants and the Solicitor General also
Erroneously focus on Selective data concerning the percentagg
of wnite votes received by a few black candidates. f Brief
for Appellants at 36-38; Brief {or Amicus Curiae,solicitor
ffizg.Withoutconsideringthesevotingpatterns!n
context, however, such a focus is highly misleading. For
example, both briefs stress that a black candidate (Aerry)
received 50t and 422 of the white vote in the primary and
general elections for House District No. 35 in f982. The trial
io"it specifically addressed the misleading Eature of this sta-
tistic, pointing out that. in the primary there were only seven
white candidates for eight positi.ons so that at Ieast one black
had to be elected, and that in the general election, a solid
mEJority of white voters refused to vote for any black candi-
dates. J.S. at 42a.

158I Furthermore, the trial court correctly compared black
1682 and white support for black candidates, noting that black can-
1683 didates who received near-unanimous support from the black com-
1584 munity were ranked very low even by t,hose white voters who
1585 voted for them. Id. at 42a-46a. In a few cases, the white
1587 support !/as sufficient to enable those black candidates with
1688 nearly unanimous black support to win. But even as to those
1589 candidates, severe polarization created large electoral hurdles
1590 not faced by white candidates. And, blacks could overcome
1591 these hurdles only by single-shot voting, thereby "forfeiting
t692 by practical necessity their right to vote for a full slate of
1593 candidates.' Id. at 41a. Racia] bloc voting thus
1594 unquestionably resulted in significant dilution of the voting
1695 strength of black voters in the challenged districts.

t599 85/

L702 85/

I9
20
2l

See supra at _.
See supra at _.

-44



r703

t7 04

1705

L7 07

r708

1710

L7t2

17I3

L7 57
t7 57
17 05

1714
1715
t717
r 718
1719
L720
t72L
L722
t723
t724
L725
t725
L727
L728
t7 29
I730
17 31
r733
t734
r735
17 36
17 38
17 38
17 39

L7 42
L7 43
l7 57

3

19
20
2L

buttress this conclusion, as does the court's finding of per-

sistent. underrepresentation of black-supported candidates at

a1I levels of government.{/ lhe court's conclusion that

blacks have been underrepresented was based not on a "rule of

thumb" of proportionate rePresentation, however, but on the

court's gareful scrutiny of the results of a number of elec-

tions held in each challenged district and the electoral

contexts that generated lhose results .88/ Though acknowledging

87/ Id. at 37a.

88/ See supra at p. 

-: 

By selectively focusing on
certain races in certain districts and ignoring the circum-
StanceS surrounding those particular races, both the Appellants
and the Solicitor General draw unvarranted inferences about
blacks' ability to influence the political process. For
example, the Solicitor General infers that blacks enjoy equal
elecloral opportunity in House District No. 23 by virtue of the
election of a black member to a three-person House delegation
where blacks constitute 35.3? of the population. Brief of Ami-
cus Curiae Solicitor Gene.ral at 19 (unprinted). Such an inf er-
enEE-E cleaify unvarranted: the triat court carefully points
out that only two white candidates decided to enter the race
for three seats. A black candidate therefore had to win. See
J.S. at 40a. In addition, the court noted that no black had
ever been elected to the Senate from District 23, and that only
25* of the City Council members are black despite a 472 black
voting population. Id. at 35a. The Solicitor General also
emphaiiies that two of five House delegates in District No. 39
arL black while blacks constitute only 252 of the population,
see Brief of Amicus Curiae Solicitor.General at 20 (unprinted),
but ignores the court's additional findings that only one of
eight Board of Educati.on members is black, that only one of
five City Commissioners is black, and that no blacks have ever
been elected to the Senate. See J.S. at 35a.

The Solicitor General also asserts that the fact that
a black candidate had to win some elections due to the number

IFootnote continued next pageJ

- 45



L757 the recent election of a few black candidates, the trial court

I758 found compelling leasons to doubt that those results demon-

r759 strated qquar electorar cpportun ity,W'/ and f ound the "overalr

1768 results achieved to date at all leve1s of elective office

L77O minimal in relation to the percentage of- blacks in the total

L771 population."S/ These additional f indings leave no doubt that

L772 blacks in these multimember districts are being precluded from

1773 engaging in coalition politics, and under the circumstances are

L774 being denied equal electoral cPportunity.

L777
L777
L777
L777
t7'77
L777
t777
t777
L77 7

3 [Footnote continued from preceding pagel
3

L744 of. open seats is a sign of political strength. This
IZ45 Eounterintuitive claim speculates that white political leaders
L746 must have intentionally arranged a slate securing a position
L747 for a black candidate. See Brief for
t7 48 General at 20 n.-, 29 (unPrint . This assertion is
L749 unsupported by any evidence, and would appear !o have been
1750 impl1-itly rejected by the trial court. Even if white leaders
1751 had "slated inn loom for a token black candidate, they likely
1753 would have done so for the purpose of forestalling the success
I755 of ptaintiffs in t,his litigat,ion, which was pending during the
1755 period in question. See infra at note 89.

L75;- 89/ F'or example, the trial court concluded that the some-
1752 wtrat higher level of success experienced by black candidates in
L753 L982 compared to previous years like1y was caused by the
L764 pendency of this very Iawsuit, which encouraged white political
1755 leaders to support token black candidates in order to forestall
1766 success by plaintiffs on the merits. See J.S. at 37a n.27.

L77t 90/
19
20
2t

Id. at 37 a n.27 .

-45



1 i tt

t779

178 0
r781

CONCLUS ION

For the reasons stated herein, the judgment of the

L782 trial court below should be affirmed.

Respectf uI Iy submi tted,

william T. Lake
Adrienne Masters

Wilmer, Cutler & Pickering*
1555 K Street, N.W.
!{ashington, D.C. 20005
202-872-5000

Counsel for Amicus

August 30, 1985.

Evan Caminker, a summer associate at the law firm of
Cutler & Pickering, assisted in the preparation of this

1783
L787
1788
r788
1 788
17 88
178 9
17 90
17 91
L792
L793
L794
17 95
r795
L797
L797
I798 Date:
L799
L799
1799
L799
L799
1802 I
1803 9,ti Imer,
1804 brief .
1807
1807
1807
r807
1807
1807
1807
1807
r807
1807
1807
1807
r807
1807
180 7
1807
r807

19
20
2t -47