Letter to Julius Chambers from RJ Rodney Jr

    No. 83-1968 

IN THE 

~uprtmt o.tnurt nf tqt Uuittb ~tatta 
OcTOBER TERM, 1984 

LACY H. THoRNBURG, et al., 
Appellants, 

'Y· 

RALPH GrNGLEs, et al., 
Appellees. 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

SUPPLEMENTAL BRIEF FOR APPELLEES 

JuLiu s LE VoNNE CHAMBERS 

LAN! GUINIER* 

NAACP Legal Defense & 
Educational Fund, Inc. 

16th Floor 
99 Hudson Street 
New York, New York 10013 
( 212) 219-1900 

LESLIE WINNER 

Ferguson, Watt, W alias, 
and Adkins, P .A. 

951 S. Independence Boulevard 
Charlotte, North Carolina 28202 
(704) 375-8461 

Attorneys for Appellees 

*Counsel of Record 





TABLE OF AUTHORITIES 

Cases 

Anderson v. City of Bessemer City, 
u.s. (1985) ••••••••••••.• 15 

Brooks v. Allain, No. 83-1865 
( 1984) • • • • • • • • • • • • • • • • • • • • • • • • • • • 3115 

Hunter v. Underwood, u.s. ---
( 1985) • • • • • • • • • • • • • • • • • • • • • • • • • • • 2 

Pullman-Standard Co. v. Swint, 456 
u.s. 273 (1981) •••••••••••••••••• 14 

Rogers v. Lodge, 458 u.s. 613 
( 1 982} • • • • • • • • • • • • • • • • • • • • • • • • • • • 2 

Strake v. Seamon, No. 83-1823 
( 1 984) • • • • • • • • • • • • • • • • • • • • • • • • • • • 3, 1 5 

White v. Regester, 412 u.s. 755 
( 1973) • • • • • • • • • • • • • • • • • • • • • • • • • • • 9, 1 7 

Witt v. Wainwright, ___ u.s. __ _ 
( 1 985) • • • • • • • • • • • • • • • • • • • • • • • • • • • 15 

Zimmer v. McKeithen, 485 F.2d 1297 
(5th Cir. 1973) • • • • • • • • • • • • • • • • • • 10 

- i -



Statutes 

Section 2 of the voting Rights Act of 
1965, as amended, 42 u.s.c. 
s 1973(b) •••••••••••••••••••••••• 2,7,8 

12,15,16,17 

Section 5 of the voting Rights Act 
of 1965 ..•..........•.•....•.... 16,17 

Other Authorities 

Rule 52, Federal Rules of Civil 
Procedure . . . . . . . . . . . . . . . . . . . . . . . . 3, 6 

s. Rep. 97-417 (1982) ••••••••••••••••• 9.10 

- ii -



No. 83-1968 

IN THE 

SUPREME COURT OF THE UNITED STATES 

October Term, 1984 

------------------------------------------------------------------
LACY H. THORNBURG, et al., 

Appellants, 

v. 

RALPH GINGLES, et al., 

Appellees. 

----------------------------------------------------------------
On Appeal from the United States 
District Court for the Eastern 

District of North Carolina 

SUPPLEMENTAL BRIEF FOR APPELLEES 

Appellees submit this Supplemental 

Brief in response to the brief filed by 

the United States. 



- 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 

act ion such as this requires the trial 

court to determine whether 

the political _processes leading to 
nomination or election in the State 
or political subdivision are not 
equally open to Pfrticipation by [a 
protected group]. 

The presence or absence of such equal 

opportunity, like the presence or absence 

of a discriminatory motive, is a factual 

question. See Hunter v. Underwood, 

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

458 u.s. 613 (1982). Correctly recognizing 

the factual · nature of that issue, this 

Court has on two occasions during the 

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



- 3 -

present term summarily affirmed appeals in 

section 2 actions. Strake v. Seamon, No. 

83-1823 (Oct. 1, 1984}; Brooks v. Allain, 

No. 83-1865 (Nov. 13, 1984}. If an 

ordinary appeal presenting a disputed 

question of fact is now to be treated for 

that reason alone as presenting a "sub-

stantial question," then this case, and 

almost all direct appeals to this Court, 

will have to be set for full briefing and 

argument. We urge, however, that to 

routinely treat appeals regarding such 

factual disputes as presenting substantial 

questions would be inconsistent with Rule 

52(a}, Federal Rules of Civil Procedure, 

and with the efficient management of this 

Court's docket. 

The Solicitor General, having con-

ducted his own review of some portions of 
2 

the record, advises the Court that, had he 

2 The Solicitor General, understandably less 



- 4 -

been the trial judge, he would have 

decided portions of the case differently. 

The judges who actually tried this case, 

all of them North Carolinians with long 

personal understanding of circumstances in 

that state, concluded that blacks were 

denied an equal opportunity to participate 

in the political processes in six North 

Carolina multi-member and one single 

member legislative districts. The 

Solicitor General, on the other hand, is 

of the opinion that there is a lack of 

familiar with the details of this case 
than the trial court, makes a number of 
inaccurate assertions about the record. 
The government asserts, for example, 
"there is not the slightest suggestion" 
that black candidates were elected because 
whites considered them "safe". (U.S. Br. 
18 n. 17). In fact there was uncontra­
dicted testimony that only blacks who were 
safe could be elected. (Tr. 625-26, 691, 
851, 857). The Solicitor also asserts, 
incorrectly, (U.S. Br. 17 n.14) that the 
1982 election was the only election under 
the plan in question. In fact, the 
districts have been the same since 1971. 
(J.S. App. 19a) 



- 5 -

3 
equal opportunity in 2 districts, that 

"there may well be" a lack of opportunity 
4 

in 2 other districts, but that blacks in 

fact enjoy equal opportunity to partici-

pate 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 

4 

5 

House District 8 and Senate District 2; 
U.S. Brief 21. 

House District 36 and Senate District 22; 
u.s. Brief 20 n.10 The appendix to the 
jurisdictional statement which contains 
the District Court 's opinion has a 
typographical error stating erroneously 
that two black citizens have run "success­
fully" for the Senate from Mecklenburg 
County. The correct word is "unsuccess ­
fully". J.S. App. 34a. 

House Districts 21, 23 and 39; u.s. Brief 
1 6 • 



- 6 -

The government's fact-bound and 

statistic-laden brief, noticeably devoid 

of any reference to Rule 52, sets out all 

of the evidence in this case which 

supported the position of the defendants. 

It omits, however, any reference to the 

substantial evidence which was relied on 

by the trial court in finding discrimina­

tion in the political processes in each of 
6 

the seven districts in controversy. The 

Senate Report accompanying section 2 

listed seven primary factual factors that 

should be considered in a section 2 case 

and the government does not challenge the 

findings in the district court's opinion 

that at least six of those factors 

supported appellees' claims. On the 

contrary, the government candidly acknowl-

edges " [ t] he district court here faith-

6 J.A. App. 21a-52a. 



- 7 -

fully considered these objective factors, 

and there is no claim that its findings 

with respect to any of them were clearly 
\ 

erroneous." (U.S. Br. 11). 

The government apparently contends 

that all the evidence of discrimination 

and inequality in the political process 

was outweighed, at least as to House 

Districts 21, 23 and 39, solely by the 

fact that blacks actually won some 

elections in those multi-member districts. 

It urges 

On 

Judged simply on the bas is of 
'resu 1 t s, ' the multimember plans in 
these districts have apparently 
enhanced -- not diluted -- minority 
strength. (U.S. Br. 16). 

the government's 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 authorize a court to "judg[e] simply 



- 8 -

on the basis of [eledtion] 'results'", but 

requires a more penetrating inquiry into 

all ev iden.ce ,tending ,to demonstrate the 

presence or ., absenc.e of inequality of 
7 

opportunity in the political process •. - · 

Congress itself expressly emphasized in 

section 2 that the rate at which minori-

ties had been elected was only "one, 
----: 

circumstance which may be considered." 

i 7 , The ,distrkt court found, inter alia, that 
'·' the use of 'racial appeals in elect1ons has 

been widespread and persists to the 
present, J.S. App. 32a; the use of a 
majority vote requirement "exists as a 
continuing practical impediment to the 
opportunity of black voting minorities" to 
elect candidates of their choice, J.S. 
App. 30a; a substantial gap between black 
and white voter registration caused by 
past intentional discrimination; extreme 
racial polarization in voting patterns; 
and a black electorate more impoverished 
and less well educated than the white 
electorate and, therefore, less able to 
participate effectively in the more 
expensive multi-member district elections. 
There was also substantial, uncontradicted 
evidence that racial appeals were used in 
the 1982 Durham County congressional race 
and the then nascent 1984 election for 
u.s. Senate. 



- 9 -

(Emphasis added). The legislative history 

of section 2 repeatedly makes clear that 

Congress intended that the courts were not 

to attach conclusive significance to the 

fact that some minorities had won elec-
8 

tions under a challenged plan. 

The circumstances of this case illus-

trate the wisdom of Congress' decision to 

require courts to consider a wide range of 

circumstances in assessing whether blacks 

are afforded equal opportunity to partici-

pate in the political process. A number 

8 s. Rep. 97-417,29 n.115 ("the election of 
a few minority candidates does not 
'necessarily foreclose the possibility of 
dilution of the black vote', in violation 
of this section"), n. 118. ("The failure 
of plaintiff to establish any particular 
factor is not rebuttal evidence of 
non-dilution"). See also S. Rep. at 2, 
16 , 21, 22, 27, 29, 33 and 34-35. The 
floor debates are replete with similar 
references. In addition, see White v. 
Regester, 412 u.s. 755 (1973) affirming 
Graves v. Barnes, 343 F. Supp. 704, 726, 
732 (W.D. Texas 1972) (dilution present 
although record shows repeated election of 
minority candidates). 



- 10 -

of the instances in which blacks had won 

elect ions occurred only after the com-

mencement of this litigation, a circum-

stance which the trial court believed 
9 

tainted their significance. In several 

other elections the successful black 
10 

candidates were unopposed. In one example 

relied on by the Solicitor in which a 

black was elected in 1982, every one of 

the 11 black candidates for at-large elec-

tions in that county in the previous four 
1 1 

years had been defeated. In assessing the 

political opportunities afforded to black 

9 

10 

11 

J.A. App. 37a. See also, s. Rep.at 29 
n.115, citing Zimmer v. McKeithen, 485 
F.2d 1297, 1307 (5th Cir. 1973),(post­
litigation success is insignificant 
because it "might be attributable to 
politicalsupport motivated by different 
considerations -- namely that election of 
a black candidate will thwart successful 
challenges to electoral schemes on 
dilution grounds.") 

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

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



- 11 -

voters under those at-large systems, the 

Solicitor General evidently disagrees with 

the comparative weight which the trial 

court gave to these election results and 

to the countervailing evidence; the 

assessment of that evidence, however, was 

a matter for the trial court. 

The Solicitor General seeks, in the 

alternative, to portray his disagreement 

with the trial court's factual findings as 

involving some dispute of law. This he 

does by the simple expedient of accusing 

the district court of either dissembling 

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

Brief 12) Thus, despite the district 

court's repeated statements that section 2 

requires only an equal opportunity to 
12 

participate in the political process, the 

Solicitor General insists that •the only 

j 
12 J.S. App. 12a, 15a, 29a n.23, 52a. 



- 12 -

explanation for the district court's 

conclusion is that it erroneously equated 

the legal standar d of Section 2 with one 

of guaranteed electoral success in 

proportion to the black percentage of the 
' ; ) 

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

original). Elsewhe-re, the Solicitor, 
l 

although unable to cite any such holding 

by the trial court, -asserts that the court 

must have been applying an unstated 

"proportional representation plus" 

standard. ( U • S • Brief 1 8 n • 1 8 ) • The 

actual text of the district court opinion 

simply does not contain any of the legal 

holdings to which the Solicitor indicates 

he would object if they were some day 

contained in some other decision. 

The government does not assert that 

the trial court's factual finding of 

racially polarized voting was erroneous, 

or discuss the extensive evidence on which 



- 13 -

that finding was based. Rather, the 

government asserts that the trial court, 

although apparently justified in finding 

racially polarized voting on the record in 

this case, adopted an erroneous' "defini­

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

13). Nothing in the trial court's detailed 

analysis of racial voting patterns, 

however, purports to set any mechanical 

standard regarding what degree and 

frequency of racial polarization is 

necessary to support a section 2 claim. 

Nothing in that opinion supports the 

government's assertion that the trial 

court would have found racial polarization 

whenever less that 50% of white voters 

voted for a black candidate. In this 

case, over the course of some 53 elec­

tions, an average of over 81% of white 

voters refused to support any black 

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



- 14 -

litigation there were almost no elections 

in which a black candidate got votes from 

as many as .one-third of the white voters. 

(J.S. App. 41a-46a). Ih the five elec­

tions where a black candidate was unop­

posed, a majority of whites were so 

determined not to support a black that 

they voted for no one rather than vote for 

the black candidate. (J.S. App.44a}. 

While the level of white resistance to 

black candidates was in other instances 

less extreme, the trial court was cer­

tainly justified in concluding that there 

was racial polarization, and the Solici­

tor General does not assert otherwise. 

The Solicitor General urges this 

Court to note probable jurisdiction so 

that, laying aside the policy of appellate 

self-restraint announced in Pullman-

Standard v. Swint, 456 u.s. 273 (1981}, 

and its progeny, the Court can embark upon 



- 15 -

its own inquiry into the diverse nuances 

of racial politics in Cabarrus, Forsyth, 

Wake, Wi 1 son, Edgecombe, Nash, Durham, 

and Mecklenburg counties. Twice within 

the last month, however, this Court has 

emphatically admonished the courts of 

appeals 

Anderson 

u.s. 

u.s. 

term this 

against such undertakings. 

v. City of Bessemer City, 

(1985); Witt v. Wainwright, 

( 198 5) • Twice in the present 

Court has summarily affirmed 

similar fact-bound appeals from district 

court decisions rejecting section 2 

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

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

83-1865 (Nov. 13, 1984). No different 

standard of review should be applied here 

merely because in this section 2 case the 

prevailing party happened to be the 

plaintiffs. 



- 16 -

Appellees in this case did not seek, 

and the trial court did not require, any 

guarantee of proportional representation. 

Nor did proportional representation result 

from that court's order. Prior to this 

litigation only 4 of the 170 members of 

the North Carolina legislature were black; 

today there are still only 16 black 

members, less than 10%, a far smaller 

proportion than the 22.4% of the popula­

tion who are black. Whites, who are 75.8% 

of the state population, still hold more 

than 90% of the seats in the legislature. 

In the past this Court has frequently 

deferred to the views of the Attorney 

General with regard to the interpretation 

of section 5 of the voting Rights Act. No 

such deference is warranted with respect 

to section 2. Although the Department of 

Justice in 1965 drafted and strongly 

supported enactment of section 5, the 



- 17 -

Department in 1981 and 1982 led the 

opposition to the amendment of section 2, 

acquiescing in the adoption of that 

provision only after congressional 

approval . was unavoidable. The Attorney 

General, although directly responsible for 

the administration of section 5, has no 

similar role in the enforcement of section 

2. Where, as where, a voting rights claim 

turns primarily on a factual dispute, the 

decisions of this Court require that 

deference be paid to the judge or judges 

who heard the case, not to a Justice 

Department official, however well inten­

tioned, who may have read some portion of 

the record. White v. Regester, 412 u.s. 

755, 769 (1973}. The views of the 

Department are entitled to even less 

weight when, as in this case, the Solici­

tor's present claim that at-large dis­

tricts "enhance" the interests of minority 



- 18 -

voters in North Carolina represents a 

complete reversal of the 1981 position of 

the C i vi 1 .Rights Oiv is ion that such 

districts in North Carolina "necessarily 

submerge[] cognizable minority population 

concentrations in·to larger white elec-

torates." (Section 5 objection letter, 

Nov. 30, 1981, J.S. App. 6a}. 

CONCLUSION 

For the above reason, the judgment of 

the district court should be summarily 

affirmed. 

Respectfully submitted, 

JULIUS L. CHAMBERS 
LAN! GUINIER* 

NAACP Legal Defense and 
Educational Fund, Inc. 

99 Hudson Street 
16th Floor 
New York, New York 10013 
(212) 219-1900 



- 19 -

LESLIE J. WINNER 
Ferguson, Watt, Wallas 

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

Charlotte, North Carolina 28202 

Attorneys for Appellees 

*Counsel of Record 







Hamilton Graphics, lnc.-200 Hudson Street, New York, N.Y.-(212) 966·4177 


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