Amicus Curiae Brief — Thornburg v. Gingles

EST AVAILABLE COPY ———__s

No. 83-1968 AU G 995

IN THE

Supreme Court of the Unite States -——

OCTOBER TERM, 1985

LACY H. THORNBURG, et al.,

0 Appellants,

RALPH GINGLES, et al.,

m Appellees.

On Appeal from the United States District Court

for the Eastern District of North Caroline

BRIEF FOR THE LAWYERS’ COMMITTEE

FOR CIVIL RIGHTS UNDER LAW AND

THE AMERICAN JEWISH COMMITTEE

AS AMICI CURIAE SUPPORTING APPELLEES

JAMES ROBERTSON

HAROLD R. TYLER, JR.

Co-Chairmen

NORMAN REDLICH

Trustee

WILLIAM L. |, OBINSON

FRANK R. PARKER *

SAMUEL ISSACHAROFF

PATRICIA M. HANRAHAN

LAWYERS’ COM MITTEE FOR

CIVIL RIGHTS UNDER LAW

1400 ‘Eye’ Street, N.W.

Suite 400

Washington, D.C. 20005

(202) 371-1212

SAMUEL RABINOVE

RICHARD T. FOLTIN

THE AMERICAN JEWISH

COM MITTEE

165 East 56 Street

New York, New York 10022

(212) 751-4090

Attorneys for Amici Curiae

* Counsel of Record

WILSON - Eres Printing Co.. Inc. - 789-0096 - WasHINGTON. D.C. 20001

TABLE OF CONTENTS

STATEMENT OF INTEREST TT. ae 1

INTRODUCTION AND SUMMARY OF ARGU-

— eeiictncerrtrstenssamresttetieassetensemnencemens 8 —

— K

I.

II.

THE DISTRICT COURT PROPERLY CON-

CLUDED THAT THE TOTALITY OF CIR-

CUMSTANCES DEMONSTRATED AN IM-

PERMISSIBLE DILUTION OF MINORITY

VOTING STRENGTH, AND ITS ANALYSIS

OF EACH OF THE RELEVANT FACTORS

WAS CONSISTENT WITH THE VOTING

RIGH’’S ACT AMENDMENTS OF 1982

A. Section 2 Violations Are Established By the

“Totality of the Circumstances”

B. The District Court’s Ultimate Conclusion of

Discriminatory Result was Fully Supported

by the Totality of Circumstances...

THE DISTRICT COURT DID NOT ERR IN

CONCLUDING THAT THE ELECTION OF

SOME MINORITY CANIDATES DID NOT

ALTER THE HISTORIC PATTERN OF LACK

OF OPPORTUNITY FOR MINORITY VOT-

ERS, NOR DID IT ADOPT A PROPORTIONAL

REPRESENTATION STANDARD

A. The Election of Some Black Officials Did

Not Disprove Lack of Equal Opportunity to

Elect Minority Officials...

B. Appellants’ Claim that the District Court

Imposed a Proportional Representation

Standard Harkens Back to the Rejected Ar-

guments Made by Opponents of the 1982

Amendment to the Voting Rights Act

11

12

ii

TABLE OF CONTENTS—Continued

III. APPELLANTS SEEK TO NULLIFY THE

1982 AMENDMENT TO THE VOTING

RIGHTS ACT BY FORECLOSING THE JU-

DICIAL INQUIRY INTO THE TOTALITY OF

THE CIRCUMSTANCES WHICH GIVE RISE

TO CLAIMS OF VOTE DILUTION

A. The Use of Statistical Analysis and Lay

Witnesses to Establish Racially Polarized

Voting Without Any Inquiry Into Voter

Motivation Is Fully Supported by the Case

Law and the Legislative History of Section

OY gf —T—T—T—T—T—T——ccccccccc

IV. CLAIMS OF VOTE DILUTION, LIKE ALL

CLAIMS OF AN ABRIDGMENT OF THE

FRANCHISE, ARE ENTITLED TO SPECIAL

JUDICIAL SOLICITUDE

CONCLUSION ...................

19

19

iii

TABLE OF AUTHORITIES

Cases: Page

Beer v. United States, 374 F. Supp. 363 (D.D.C.

1974), vac’d 425 U.S. 130 (19765 14

Bolden v. City of Mobile, 423 F. Supp. 384 (S.D.

Ala. 1976), aff'd 571 F.2d 238 (5th Cir. 1978),

LG 1, passim

Boykins v. Hattiesburg, Civil No. H77- 0062 (C)

(S. D. Miss., March 2, 1984) 23

Burns v. Richardson, 384 U.S. 73 (1966) . 2,8

Chapman v. Meier, 420 U.S. 1 (1979) 9

Chrysler Corp. v. Brown, 441 U.S. 281 (1979)... 5

City of Port Arthur v. United States, 517 F. Supp.

987 (D.D.C. 1981), aff'd, 459 U.S. 159 (1982) 23

City of Rome v. United States, 472 F. Supp. 221

(D.D.C. 1979), aff'd, 446 U.S. 156 (1980) 16, 20

Connor v. Johnson, 402 U.S. 690 (19700) 9

Cross v. Barter, 604 F.2d 875 (5th Cir. 19799 14

Duplex Printing Press Co. v. Deering, 254 U.S.

EES DS 5

Ernst & Ernst v. Hochfelder, 425 U.S. 185

ES SE 5

Ferguson v. Winn Parish Policy Jury, 528 F.2d

CL at 26

Fortson v. Dorsey, 379 U.S. 433 (1965) 2,8

Graves v. Barnes (Graves I), 343 F. Supp. 704

(W. D. Tex. 1972), aff'd sub nom. White v. Reges-

ter (White I), 412 U.S. 755 (1973) 22

Graves v. Barnes (Graves II), 378 F. Supp. 640

(W. D. Tex. 1974), vac'd sub nom. White v. Reg-

ester (White II), 422 U.S. 935 (1975957 14

Harper v. Virginia State Bd. of Elections, 383

a apuentsounsovesouns 28

Jones v. City of Lubbock, 727 F.2d 364 (5th Cir.

1984), reh’g en banc denied, 730 F.2d 233

ES LS 23, 27

Jordan v. Winter, 604 F. Supp. 807 (N.D. Miss.

1984), aff'd sub nom. Mississippi Republican

Executive Committee v. Brooks, —— U.S. .

83 L.Ed.2d 343 (1984) 5 23, 26

iv

TABLE OF AUTHORITIES—Continued

Page

Ketchum v. Byrne, 740 F.2d 1398 (7th Cir. 1984),

cert. denied, 86 L.Ed.2d 692 (1985) .................... 14

Kirksey v. Board of Supervisors of Hinds County,

402 F. Supp. 658 (S.D. Miss. 1975), aff’d, 554

F.2d 139 (5th Cir. 1977) (en banc), cert. denied,

III. en 14

Lipscomb v. Wise, 399 F. Supp. 782 (N.D. Tex.

1975) rev'd, 551 F.2d 1043 (5th Cir. 1977),

rev'd, 487 U.S. 888 (19790) —————,F——— 23

Major v. Treen, 574 F. Supp. 325 (E.D. La. 1983).. 14, 23

Mandel v. Bradley, 432 U.S. 173 (1977777 27

McDaniel v. Sanchez, 452 U.S. 130 (1981) ............. 1

McMillan v. Escambia County (McMillan I), 638

F.2d 1239 (5th Cir. 1981), aff'd on rehearing,

688 F.2d 960 (5th Cir. 1982), rev'd, Escambia

County v. McMillan, —— U.S. , 80 L.Ed.2d

111 —— 1, passim

McMillan v. Escambia County (McMillan II), 748

FR BCA EEE 6, passim

Moore v. Leflore County Board of Election Com-

missioners, 502 F.2d 621 (5th Cir. 1974) 26

NAACP v. Gadsden County School Board, 691

SC 14, 23

N.L.R.B. v. Fruit & Vegetable Packers, 377 U.S.

D,. d Tier tai, 5

National Woodwork Mfrs. Assoc. v. N.L.R.B., 385

D, ⅛ 0cę ee se kee 5

Nevett v. Sides, 571 F.2d 209 (5th Cir. 1978),

cert. denied, 446 U.S. 951 (1980) 20

Nixon v. Condon, 286 U.S. 73 (193 1 28

Nixon v. Herndon, 273 U.S. 536 (192) 28

Parnell v. Rapides Parish School Board, 425 F.

Supp. 399 (W.D. La. 1976), aff’d, 563 F.2d 180

(5th Cir. 1977), cert. denied, 438 U.S. 915

K-» H A Se IN SS RANE 22

Perkins v. City of West Helena, 675 F.2d 201 (8th

Cir. 1982), aff'd mem., 459 U.S. 801 (1982) 23

Perkins v. Matthews, 400 U.S. 379 (19717 9

Political Civil Voters Organization v. Terrell, 565

F. Supp. 338 (N.D. Tex. 1983) 14, 23

Vv

TABLE OF AUTHORITIES—Continued

Page

Pullman-Standard v. Swint, 456 U.S. 273 (1982).. 17

Reynolds v. Sims, 377 U.S. 533 (1964) 28

Robinson v. Commissioners Court, 505 F.2d 674

ee 26

Rogers v. Lodge, 458 U.S. 613 (1982) ................. 1, passim

Sierra v. El Paso Ind. School Dist., 591 F. Supp.

ee / x 14

Turner v. Mekeithen, 490 F.2d 191 (5th Cir.

CSAS Ee re 26

United Jewish Organizations v. Carey, 430 U.S.

I I incline liitess Ale — 17, 20

United States v. Board of Supervisors of Forrest

County, 571 F.2d 951 (5th Cir. 1973 14

United States v. Calamaro, 354 U.S. 351 (1957)... 5

United Siates v. Carolene Products Co., 304 U.S.

D/ orien Paton aD NA 28, 29

United States v. Dallas County Commission, 739

Sh Bo Ff ya 5

United States v. Marengo County Commission,

731 F.2d 1546 (11th Cir. 1984), cert. denied,

Sr reeled 5, passim

Wallace v. House, 377 F. Supp. 1192 (W.D. La.

1974), aff'd in part and rev'd in part, 515 F.2d

619 (5th Cir. 1975), vae’d 425 U.S. 947 (1976). 9,14

White v. Regester, 412 U.S. 755 (1973) ............. 3, passim

Yelverton v. Driggers, 370 F. Supp. 612 (S.D. Ala.

RIESE SS RM aies ioe Une eos: Ys Oe 14

Yick Wo v. Hopkins, 118 U.S. 356 (1886) 28

Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir.

1973) (en banc), aff'd sub nom. East Carroll

Parish School Board v. Marshall, 424 U.S. 636

(1976)

STATUTES:

Voting Rights Act of 1965, 42 U.S.C. § 19738 2, passim

RULES:

Is as I i 17

vi

TABLE OF AUTHORITIES—Continued

LEGISLATIVE HISTORY: Page

S. Rep. No. 417, 97th Cong., 2d Sess. (1982),

reprinted in 1982 U.S. Code Cong. & Ad. News

J ü 5, passim

Voting Rights Act: Hearings on S. 53 et al. Be-

fore the Subcomm. on the Constitution of the

Senate Comm. on the Judiciary, 97th Cong.,

r ( 18

MISCELLANEOUS:

E. Banfield & J. Wilson, City Politics (1963) 9

H. Blalock, Social Statistics (2d Ed. 19797 22

J. Ely, Democracy and Distrust (1980) 29

A. Karnig & S. Welch, Black Representation and

e eancianialimniaidendginias 9

J. Kent, Commentaries on American Law, (12th

J rr 10

Ackerman, Beyond Carolene Products, 98 Harv.

r Se a 29

Berry and Dye, The Discriminatory Effects of

At-Large Elections, 7 Fla. St. U. L. Rev. 85

( ateameaeneabataais 9

Davidson and Korbel, At-Large Elections and

Minority Group Representation, 43 J. Politics

s Se re ESE oven ae 9

Engstrom, The Reincarnation of the Intent Stand-

ard: Federal Judges and At-Large Election

Cases, 28 Howard L.J. No. 2 (1985) (forthcom-

— ag ee OO: NPN SAL re 26

Engstrom and McDonald, The Election of Blacks

to City Councils, 75 Am. Pol. Sci. Rev. 344

%%% 9. 10

Grofman, Misalski, Noviello, The ‘Totality of Cir-

cumstances’ Test in Section 2 of the 1982 Exten-

sion of the Voting Rights Act: A Social Science

Perspective, 7 Law and Policy 199 (1985) .......... 22, 23

Winne .

vii

TABLE OF AUTHORITIES—Continued

Hartman, Racial Vote Dilution and Separation of

Powers: An Exploration of the Conflict Be-

tween the Judicial “Intent’ and the Legislative

“Results” Standards, 50 Geo. Wash. L.Rev. 689

— . tilt haath ae tis

Jones, The Impact of Local Election Systems on

Black Political Representation, 11 Urb. Af. Q.

r EUS DM waren S eS SIA

Karnig, Black Representation on City Councils, 12

e hcsiansianeinidaiads

Kramer, The Election of Blacks to City Councils,

1971 J. of Black Studies 449 (19717

Latimer, Black Political Representation in South-

ern Cities, 15 Urb. Aff. . 65 (19799

Parker, Racial Gerrymandering and Legislative

Reapportionment in C. Davidson, Minority Vote

I

Parker, The “Results” Test of Section 2 of the

Voting Rights Act: Abandoning the Intent

Standard, 69 Va. L. Rev. 155 (19833

Powell, J., Carolene Products Revisited, 82 Col. L.

, .

Robinson and Dye, Reformism and Black Repre-

sentation on City Councils, 59 Soc. Sci. Q. 133

EE Roa See mo ee a

Sloan, “Good Government” and the Politics of

Race, 17 Soc. Probs. 151 (1969)

•—PSet̃!':ꝛut ee eeee

Page

10

BRIEF FOR THE LAWYERS’ COMMITTEE

FOR CIVIL RIGHTS UNDER LAW AND

THE AMERICAN JEWISH COMMITTEE

AS AMICi CURIAE SUPPORTING APPELLEES

STATEMENT OF INTEREST

The Lawyers’ Committee for Civil Rights Under Law

is a nonprofit organization established in 1963 at the re-

quest of the President of the United States to involve

leading members of the bar throughout the country in

the national effort to assure civil rights to all Americans.

Protection of the equal voting rights of all citizens has

been an important component of the Committee’s work,

and it has submitted amicus curiae briefs in a number

of voting rights cases decided by this Court, including

Escambia County v. McMillan, U.S. ——, 80 L.Ed.

2d 36 (1984); Rogers v. Lodge, 458 U.S. 613 (1982);

McDaniel v. Sanchez, 452 U.S. 130 (1981); and City of

Mobile v. Bolden, 446 U.S. 55 (1980). The Lawyers’

Committee has more than eighteen years’ experience liti-

gating voting rights cases, including several appearances

before this Court.

The American Jewish Committee is a national organi-

zation of approximately 50,000 members which was

founded in 1906 for the purpose of protecting the civil

and religious rights of Jewish Americans. It has always

been the conviction of this organization that the security

and the constitutional rights of Jewish Americans can

best be protected by helping to preserve the security and

constitutional rights of all Americans, irrespective of race,

religion, sex or national origin.

The American Jewish Commiitee and the Lawyers’

Committee for Civil Rights Under Law strongly sup-

ported enactment of the Voting Rights Act of 1965. We

continue to believe that this landmark statute, as

amended, must be enforced vigorously to fulfill its ob-

jectives and therefore urge affirmance of the decision be-

low.

2

INTRODUCTION AND SUMMARY OF ARGUMENT

This appeal challenges a determination by a three-

judge district court that a legislative redistricting plan

enacted by the General Assembly of North Carolina had

the effect of diluting black voting strength in six multi-

member state House of Representatives and Senate dis-

tricts and in one racially gerrymandered state Senate

district.

Although this appeal presents this Court with its first

plenz y review of a case involving Section 2 of the Voting

Rights Act, 42 U.S.C. § 1973, since its amendment by

Congress in 1982, the issues presented nonetheless fall

within the well-developed jurisprudence of this Court con-

cerning vote dilution. At stake in this litigation is the

ability of the federal judiciary under the mandate of the

Voting Rights Act to void discriminatory redistricting

plans and to secure for black citizens the full opportunity

to equally participate in the political process and to elect

the rey *sentatives of their choice. Appellants, with the

backing of the Solicitor General, seek to debilitate the

amended Voting Rights Act by asserting that the trial

court’s careful examination of the context in which a

vote dilution claim arises necessarily leads to a “propor-

tional representation” standard of review. In aduition,

appellants would reinfuse an intent standard into the

Act, despite its express repudiation by Congress in 1982,

by requiring »roof of the electorate’s racial motivation

before rac polarized voting may be weighed as an

evidentiary tor in a vote dilution claim.

It is instruccive that the attempt to secure such an

evisceration of the amended Voting Rights Act occurs in

the context of at-large elections. Beginning with Fortson

v. Dorsey, 379 U.S. 433 (1965) and Burns v. Richardson,

384 U.S. 73 (1966), and continuing through Rogers v.

Lodge, this Court has repeatedly viewed with skepticism

the use of multimember districts in communities evi-

dencing a history of sharp racial polarization and dis-

criminatory practices. Although the use of at-large sys-

3

tems in itself violates neither the Voting Rights Act nor

the Constitution, it is long settled that these systems sin-

gularly lend themselves to an impermissible diminution

of the value of the franchise of minority populatiens. In

amending the Voting Rights Act in 1982, Congress drew

upon two challenges to at-large elections to frame the

“totality of the circumstances” standard embodied in See-

tion 2 of the Act. See White v. Regester, 412 U.S. 755

(1973) and Zimmer v. McKeithen, 485 F.2d 1297 (5th

Cir. 1973) (en banc), aff'd sub nom. East Carroll Parish

School Board v. Marshall, 424 U.S. 63€ (1976).

Under the statutory “totality of the circumstances” test

derived from White and Zimmer, vote dilution claims are

of necessity fact specific and must correspond to the local

context. North Carolina is a state with a long history of

official discrimination against blacks in all aspects of

civil life, including the iron-clad preclusion of any role in

political life. From the conclusion of Reconstruction un-

til 1969, no black had ever been elected to the State House

of Representatives; not until 1975 did any blacks num-

ber among the state’s Senators. Against this background,

the claims of “proportional representation” can be laid to

rest with the most rudimentary examination of North

Carolina political life. Although blacks constitute 22.4%

of the state’s population, between 1971 and 1982 (the

year this lawsuit was filed), the number of blacks in the

state House was between two and four out of a total of

120; between 1975 and 1983, there were one or two black

members of the state Senate out of a total of 50. Only

five House districts and two Senate districts are involved

in this litigation and, as a simple arithmetical matter,

the outcome would not and could not guarantee propor-

tionality.

This appeal permits this Court to affirm the district

court’s proper application of the congressionally-specified

evidentiary factors of illegal vote dilution. Beyond re-

affirming the application of amended Section 2, however,

this appeal allows for a renewed declaration of the piv-

1

otal role of the voting rights of America’s minority citi-

zens. If the political processes are to be utilized to eradi-

cate the vestiges of discrimination from our society, full

and equal participation in the political process, including

the ability to elect representatives, must be guaranteed to

minorities under the careful and exacting judicial scru-

tiny mandated by Congress.

As amici, the Lawyers’ Committee for Civil Rights Un-

der Law and the American Jewish Committee appeal to

this Court not to waver from this task.

ARGUMENT

I. THE DISTRICT COURT PROPERLY CONCLUDED

THAT THE TOTALITY OF CIRCUMSTANCES

DEMONSTRATED AN IMPERMISSIBLE DILU-

TION OF MINORITY VOTING STRENGTH, AND

ITS ANALYSIS OF EACH OF THE RELEVANT

FACTORS WAS CONSISTENT WITH THE VOTING

RIGHTS ACT AMENDMENTS OF 1982.

A. Section 2 Violations Are Established By the “Total-

ity of the Circumstances.”

In 1982, Congress enacted a series of amendments to

the Voting Rights Act, 42 U.S.C. § 1973, to secure for vie-

tims of discriminatory vote dilution a strong and work-

able statutory remedy. Congress devoted particular at-

tention to the standards for proving abridgment of the

right to vote under Section 2 of the amended Act as a

result of this Court’s ruling that claims of unconstitu-

tional vote dilution can be premised only upon a showing

of discriminatory intent. City of Mobile v. Bolden, 446

U.S. 55 (1980)." The legislative history of the 1982

amendments makes unmistakably clear that the principal

objective was to provide a remedy for electoral schemes

that deny minorities an equal opportunity to participate

in the political process and elect representatives of their

1 The City of Mobile plurality extended the same standard to

vote dilution claims under the pre-1982 version of Section 2. 446

US. at 61.

choice without requiring proof of discriminatory intent.

S. Rep. No. 417, 97th Cong., 2d Sess. at 15-16, reprinted

in 1982 U.S. Code Cong. & Ad. News 177 [hereinafter

cited as S. Rep. ].“

2 The Solicitor General argues in his brief that the Senate Report

“cannot be taken as determinative on all counts,“ and that the

statements of Senator Dole must instead “be given particular

weight.” Brief for the United States as Amicus Curiae Supporting

Appellants at 8 n.12, 24 n.49 [hereinafter cited as Br. for U.S.)

However, Senator Dole fully endorsed the Committee Report, as is

clear from the first sentence of his Additional Views: “The Com-

mittee Report is an accurate statement of the intent of S. 1992, as

reported by the Committee.” S. Rep. at 193 (Additional Views of

Senator Dole). See also S. Rep. at 199 (Supplemental Views of

Senator Grassley, co-sponsor of Dole compromise amendment) (“I

am wholly satisfied with the bill as reported by the Committee and

I concur with the interpretation of this action in the Committee

Report”).

Contrary to the Solicitor General's contention, the Senate Report

must be regarded as an authoritative pronouncement of legislative

intent, since it was endorsed by the supporters of the original bill,

as well as by the proponents of the compromise amendment. See

Chrysler © b. v. Brown, 441 U.S. 281, 311 (1979); Duplex Print-

ing Press „. Deering, 254 U.S. 443, 474 (1920). The Solicitor

General's extensive reliance on the statements of witnesses before

the Senate Committee on the Judiciary is unsupportable: “Remarks

... made in the course of legislative debate or hearings other than

by persons responsible for the preparation or the drafting of a

bill, are entitled to little weight .. Frust & Ernst v. Hochfelder,

425 U.S. 185, 203 n.24 (1976). See also National Woodwork Mfrs.

Assoc. v. N.L.R.B., 385 U.S. 612, 639-40 (1967); N.L.R.B. „. Fruit

& Vegetable Packers, 377 U.S. 58, 66 (1964); United States v.

Calamaro, 354 U.S. 351, 357 n.9 (1957).

The Solicitor General's position is a radical departure from the

previous reliance by the Justice Department on the Senate Report

as the authoritative vehicle for interpreting Section 2. References

to the Report are found throughout the government argument op-

posing the at-large election system in Dallas County, Alabama

(Brief for Appellant at 20, 25, 26, 27, 35, 38, 41, United States v.

Dallas County Commission, 739 F.2d 1529 (11th Cir. 1984), and

are cited as authority in more than ten pages of its twenty-five

page argument in United States v. Marengo County Commission,

Brief for Appellant at 16, 18, 19, 20, 21, 22, 23, 25, 26, 27, 36, 39.

United States v. Marengo County Commission, 731 F.2d 1546 (11th

Cir. 1984), cert. denied, 105 S8. Ct. 375 (1984).

The intent of Congress as revealed by the statutory

language and the legislative history of the 1982 amend-

ment to Section 2 makes five things clear.

First, in enacting a Section 2 results test, Congress in-

tended to eliminate the necessity of demonstrating dis-

criminatory intent to prove a violation. S. Rep. at 27;

McMillan v. Escambia County (McMillan II, 748 F.2d

1037, 1041-42 (5th Cir. 1984).

Second, the results test expressly restore fd] the pre-

Mobile legal standard which governed cases challenging

election systems or practices as an illegal dilution of the

minority vote,” S. Rep. at 27, which Congress understood

not to require proof of discriminatory intent. This “re-

sults” test was a statutory codification of the test used

by this Court in White v. Regester, S. Rep. at 27, and the

pre-City of Mobile case law, most notably, Zimmer v.

McKeithen. Accordingly, the pre-City of Mobile cases

provide a guide as to how the statute is to be interpreted.

S. Rep. at 27; see also United States v. Marengo County

Commission, 731 F.2d 1546, 1565-66 (11th Cir. 1984),

cert. denied, 105 S. Ct. 375 (1984).

Third, Congress intended that proof of a Section 2

violation should be “based on the totality of the circum-

stances.” 42 U.S.C. §1973(b). Under this standard,

plaintiffs are held to a showing that the “political proc-

esses leading to nomination and election were not equally

open to participation by the group in question—that its

members had less opportunity than did other residents in

the district to participate in the political processes and to

elect legislators of their choice.” White, 412 U.S. at 766.

The typical evidentiary factors which may be used to

prove that minorities have less opportunity to participate

in the political process are spelled out in the Senate Re-

port.“

The Senate Report specified the following constellation of

factors:

1. the extent of any history of official discrimination in the

state or political subdivision that touched the right of the

7

Fourth, the evidentiary factors derived from these

cases are relevant in any judicial inquiry into claims of

vote dilution. However, the legislative history is clear

that Congress intended that no one factor shoula pre-

dominate, and “there is no requirement that any par-

ticular number of factors be proved, or that a majority

of them point one way or the other.” S. Rep. at 29. In-

stead, Section 2 “requires the court’s overall judgment,

based on the totality of the circumstances and guided

by those relevant factors in the particular case, of

ments, anti-single shot provision, or other voting practices or

procedures that may enhance the opportunity for discrimina-

tion against the minority group;

4. if there is a candidate slating process, whether the mem-

bers of the minority group have been denied access to that

process ;

5. the extent to which members of the minority group in the

state or political subdivision bear the effects of discrimination

in such areas as education, employment and health, which

hinder their ability to participate effectively in the political

been elected to public office in the jurisdiction.

Two additional factors of lesser evidentiary significance are

mentioned :

whether there is a significant lack of responsiveness on the

part of elected officials to the particularized needs of the mem-

bers of the minority group; [and]

whether the policy underlying the state or political subdivi-

sion’s use of such voting qualification, prerequisite to voting,

or standard, practice or procedure is tenuous.

S. Rep. at 28-29 [footnotes omitted}

whether the voting strength of the minori

. . ‘minimized or canceled out. S. Rep.

quoting Fortson and Burns.

Fifth, Congress intended Section 2 to reach practices

that either completely negate or minimize the voting

strength of minorities. The electoral successes of minor-

ity candidates is one of a number of circumstances

“which may be considered.” 42 U.S.C. 1973(b). Conse-

i

the black vote,’ in violation of this section.” S. Rep. at

29 n.115, quoting Zimmer, 485 F.2d at 1307.

Of necessity, the question of the existence of vote dilu-

tion entails an intensely factual inquiry. The standard

developed by the pre-City of Mobile case law and in-

corporated by Congress into the 1982 amendments pro-

vides a framework that highlights the features that have

recurred through the various factual settings where vote

dilution has been found. These factors correspond to

a paradigmatic setting in which a claim of vote dilution

incorporates some combination of the following: (1)

structural obstacles to the electoral success of minor-

ities, such as multimember districts, (2) a history of

discrimination and/or absence of or minimal

9

among them multimember districts or at-large elections,

have shown themselves to have resulted in the illegal

dilution of minority voting strength with such regu-

larity that, while not per se violative of the Voting

Rights Act, these systems must elicit from reviewing

courts a serious presumption of statutory infirmity under

amended Section 2. In its last full treatment of a con-

stitutional voting rights claim, this Court emphasized

“the tendency of multi-member districts to minimize

the voting strength of racial minorities.” Rogers v.

Lodge, 458 U.S. at 627. This Court has repeatedly ruled

that at-large elections violate the statutory or constitu-

tional rights of minority voters,“ and has directed courts

fashioning remedial decrees to avoid the implementation

of such electoral systems.“

A wealth of social scientific literature confirms the

“conventional hypothesis” that at-large elections con-

stitute a significant political disadvantage for minority

candidates and voters. See Davidson and Korbel, At-

Large Elections and Minority Group Representation, 43

J. Politics 982, 994-95 (Table 1) (1981) (listing empir-

ical studies)“ Dissenting from the application of the

constitutional intent standard in Rogers v. Lodge, Justice

*See Rogers, supra; White, supra; Perkins v. Matthews, 400

U.S. 379, 389 (1971) (at-large elections described as method for

whites to retain electoral control after black voter registration

increase in wake of Voting Rights Act). In addition, sixteen of

the 23 appellate court cases cited in the Senate Report involved

challenges to at-large elections, of which ten were successful. S.

Rep. at 23 n.78.

Connor v. Johnson, 402 U.S. 690, 692 (1970) (“when district

courts are forced to fashion apportionment plans, single-member

districts are preferable to large multi-member districts as a general

matter.); see also Wallace v. House, 425 U.S. 947 (1976); East

Carroll Parish Board v. Marshall, 424 U.S. 636, 639 (1976);

Chapman v. Meier, 420 U.S. 1, 18 (1975).

See also E. Banfield & J. Wilson, City Politics 91-96, 303-308

(1963); A. Karnig & S. Welch, Bic t Representation and Urban

Policy 99 (1980); Berry and Dye, The Discriminatory Effects of

At-Large Elections, 7 Fla. St. U. L. Rev. 85, 93 (1979); Engstrom

10

Stevens focused on the inherent tendency of at-large sys-

tems to maximize majority political power and re-

emphasized this Court’s skeptical view of multimember

districting. 458 U.S. at 632, 637-38 & n.16 (Stevens, J.,

dissenting) (quoting 1 J. Kent, Commentaries on Amer-

ican Law 230-31 (12th ed. 1873) ).

The facts in this case present a clear example of the

interaction between the at-large structural impediment

and the history and behavioral patterns of discrimina-

tion in North Carolina.“ The district court’s findings of

fact are replete with documentation of the discrimina-

tion against blacks in North Carolina, not only with

respect to the right to vote, but also in housing, educa-

tion, employment, health, and other public and private

facilities. 590 F. Supp. at 359-64. The court noted past

use of literacy tests, poll taxes, anti-single shot voting

laws, numbered seat requirements, and other means to

deny blacks the opportunity to register and vote, includ-

ing the continued use of a majority vote requirement.

and McDonald, The Election of Blacks to City Councils, 75 Am.

Pol. Sci. Rev. 344 (1981); Jones, The Impact of Local Election

Systems on Black Political Representation, 11 Urb. Aff. Q. 345

(1976); Karnig, Black Representation on City Councils, 12 Urb.

Aff. Q. 223-242 (1976); Kramer, The Election of Blacks to City

Councils, 1971 J. of Black Studies 443-49 (1971); Latimer, Black

Political Representation in Southern Cities, 15 Urb. Aff. Q. 65,

71-82 (1979); Robinson and Dye, Reformism and Black Repre-

sentation on City Councils, 59 Soc. Sci. Q. 133-141 (1978); Sloan,

“Goed Government” and the Politics of Race, 17 Social Problems

161, 170-73 (1969).

In addition, studies have documented the impediments against

black representation in southern legislatures created by at-large

elections, and the amelioration of the discriminatory effects follow-

ing the elimination of multimember districts. See, e.g., Parker,

Racial Gerrymandering and Legislative Reapportionment in C.

Davidson, Minority Vote Dilution 88 (1984).

7 Amici emphasize that six of the seven challenged districts use

at-large elections. The remaining district, Senate District No. 2,

was created by extensive realignment and resulted in the division

of a black population concentration, thereby precluding an effective

voting majority. 590 F. Supp. at 358.

11

The court found that black voter registration rates re-

mained depressed relative to whites because of the long

period of official state denial and chilling of black citi-

zens’ registration efforts.” Jd. at 361. Also as a con-

sequence of the history of discrimination, blacks con-

tinue to suffer from a lower socioeconomic status which,

the court found, continues to impair their ability to par-

ticipate on an equal basis in the political process. Id. at

361-63. The historie use of racial appeals in political

campaigns was found to persist in North Carolina, and

to continue to affect the capability of blacks to elect can-

didates of their choice. Jd. at 364. Finally, voting was

found to be severely racially polarized in the challenged

districts, id. at 367-72, and black candidates to remain

at a disadvantage in terms of relative probability of

success in running for office. Id. at 367.

In sum, with the single exception of denial of access

to a candidate slating process, the district court found

that all of the factors specified in the Senate Report

existed or were present in the recent past in the chal-

lenged districts. More important, the persistent effect

of each factor, even in isolation, was found to have a

direct and appreciable impact on present minority polit-

ical participation which continued to disadvantage blacks

relative to whites. In light of these findings of fact,

the district court properly concluded that the signposts

for vote dilution drawn from the case law and legisla-

tive history of Section 2 all pointed to the dilution of

minority voting strength in the multimember districts

and the single-member Senate district.

II. THE DISTRICT COURT DID NOT ERR IN CON-

CLUDING THAT THE ELECTION OF SOME MI-

NORITY CANDIDATES DID NOT ALTER THE

HISTORIC PATTERN OF LACK OF OPPORTU-

NITY FOR MINORITY VOTERS, NOR DID IT

ADOPT A PROPORTIONAL REPRESENTATION

STANDARD.

Congress drew upon White and Zimmer as model judi-

cial interventions to remove structural barriers that im-

12

peded minority access to the political process. It bears

emphasis that many of the factors focused upon in White

and its progeny are not in themselves either illegal or

unconstitutional but may nonetheless, in their aggregate,

trigger the need for remedial intervention.“

Appellants’ arguments before this Court would defeat

the overall inquiry into the structures, practices and be-

haviors affecting minority political opportunity in two

critical ways: first, appellants would have the multi-

factored White Zimmer analysis negated by the episodic

election of black candidates, and second, appellants seek

to introduce an intent standard into the well-developed

concept of racially polarized voting.

A. The Election of Some Black Officials Did Not Dis-

prove Lack of Equal Opportunity to Elect Minority

Officials.

Appellants contend that “the degree of success at the

polls enjoyed by black North Carolinians” distinguishes

this suit from prior vote dilution cases and is sufficient

“to entirely discredit the plaintiffs’ theory that the pres-

ent legislative districts deny blacks equal access to the

political process.” Br. of Appellants at 24. Similarly, the

Solicitor General asserts that the challenged multimem-

ber districts have “apparently enhanced—not diluted—

minority voting strength.” Br. for U.S. at 23. Both

Appellants and the Solicitor General cite the extent of

claimed minority success as a principal reason for over-

turning the district court. This argument is wrong as

a matter of law and fact.

As previously stated, the legislative history is clear

that Congress intended that a Section 2 violation should

„The facts in White set the contours for the puzzle, but the

blank spaces could be filled in with different pieces Hartman,

Racial Vote Dilution and Separation of Powers: An Exploration

of the Conflict Between the Judicial “Intent” and the Legislative

“Results” Standards, 50 Geo. Wash. L. Rev. 689, 699 (1982). See

also Parker, The “Results” Test of Section 2 of the Voting Rights

Act: Abandoning the Intent Standard, 69 Va.L.Rev. 155 (1983).

13

depend upon “the totality of the circumstances,” and the

election of minority candidates in challenged districts

does not, in itself, foreclose a finding of vote dilution.

S. Rep. at 29 n.115. Thus, the degree of minority elec-

toral success is “one circumstance which may be con-

sidered .. .” 42 U.S.C. 1973 (emphasis added). See

also S. Rep. at 29 (“there is no requirement that any

particular number of factors be proved, or that a major-

ity of them point one way or the other.”). Indeed the

proviso in Section 2° was enacted in response to con-

cerns that a results test would devolve into a standard

focused solely on the extent of minority electoral success.

The two principal cases cited by the Senate Report,

White and Zimmer, both provide direct precedent for the

district court’s ruling that the election of minority can-

didates does not necessarily foreclose a finding of vote

dilution. In White, this Court determined on facts almost

identical to the present case that multimember legisla-

tive districts in Dallas and Bexar Counties, Texas, denied

minority voters equal opportunities to elect candidates

of their choice notwithstanding that two blacks and five

Mexican-Americans had been elected to the Texas legis-

lature from those districts. 412 U.S. at 766, 768-69.

Similarly, in Zimmer, the Fifth Circuit found vote dilu-

tion in at-large, county-wide voting despite the election

of three black candidates after the case was tried.”

Provided, that nothing in this section establishes a right to

have members of a protected class elected in numbers equal to

their proportion in the population.” 42 U.S.C. § 1973.

10“ Wie cannot endorse the view that the success of black candi-

dates at the polls necessarily forecloses the possibility of dilution

of the black vote. Such success might, on occasion, be attributable

to the work of politicians, who, apprehending that the support of a

black candidate would be politically expedient, campaign to insure

his election. Or such success might be attributable to political

support motivated by different considerations—namely that elec-

tion of a black candidate will thwart successful challenges to elec-

toral schemes on dilution grounds. In either situation, a candidate

could be elected despite the relative political backwardness of black

residents in the electoral district. Were we to hold that a minority

14

Numerous pre-City of Mobile cases, which Congress in-

tended to govern Section 2, establish the proper legal

standard that, where other evidence of minority vote

dilution is present, the election of minority candidates

does not foreclose a finding of a voting rights violation.“

Courts construing Section 2, as amended, have reached

the same conclusion.”

The reasoning of these cases should be apparent. Un-

der at-large voting, the election processes can easily be

manipulated by the white voting majority to achieve any

desired result, and the election of minority candidates

alone is not determinative of whether minority voters

enjoyed a genuine oppor.unity to elect candidates “of

their choice.” Under certain circumstances, notably the

pendency of a challenge to at-large elections, the election

candidate’s success at the polls is conclusive proof of a minority

group’s access to the political process, we would merely be inviting

attempts to circumvent the Constitution. This we choose not to do.

Instead, we shall continue to require an independent consideration

of the record.” 485 F.2d at 1307.

11 Cross v. Baxter, 604 F.2d 875, 885 (5th Cir. 1979) (“district

court erroneously held that the election of a single black official

foreclosed any possible dilution claims”); United States v. Board

of Supervisors of Forrest County, 571 F.2d 951, 956 (5th Cir.

1978) ; Kirksey v. Board of Supervisors of Hinds County, 554 F.2d

139, 149 n.21 (5th Cir. 1977), cert. den. 434 U.S. 877 (1977);

Graves v. Barnes (Graves II), 378 F. Supp. 640, 648, 659 (W_D.

Tex. 1974), vac’'d on other grounds sub nom. White v. Regester

(White II), 422 U.S. 935 (1975); Wallace v. House, 377 F. Supp.

1192, 1197 (W.D. La. 1974), aff'd in part and rev'd in part on other

grounds, 515 F.2d 619 (5th Cir. 1975), vac’d on other grounds,

425 U.S. 947 (1976); Beer v. United States, 374 F. Supp. 363, 398

n.295 (D. D.C. 1974), vac'd on other grounds, 425 U.S. 130 (1976) ;

Yelverton v. Driggers, 370 F. Supp. 612, 616 (S.D. Ala. 1974).

12 See Ketchum v. Byrne, 740 F.2d 1398, 1405 (7th Cir. 1984),

cert. denied, 86 L.Ed.2d 692 (1985); Marengo County, 731 F.2d

at 1572; NAACP v. Gadsden County School Bd., 691 F.2d 978 (11th

Cir. 1982); Sierra v. El Paso Ind. School Dist., 591 F. Supp. 802,

810 (W.D. Tex. 1984); Major v. Treen, 574 F. Supp. 325, 351

(E.D. La. 1983) ; Political Civil Voters Organization v. Terrell, 565

F. Supp. 338, 342 (N.D. Tex. 1983).

15

of hand-picked minority candidates might be “politically

expedient” to the white majority or entrenched political

forces. Zimmer, 485 F.2d at 1307. Similarly, such elec-

tion of minority candidates might well be part of an

effort to moot claims of minority vote dilution and to

“thwart challenges to election schemes on dilution

grounds.” Id.

In rushing to herald the electoral success of North

Carolina blacks, appellants and the Solicitor General

overlook the critical findings of fact of the district court.

The statewide figures reveal that there were never more

than four blacks in North Carolina’s 120-member House

of Representatives between 1971 and 1982, and never

more than two blacks in the 50-member State Senate

from 1975 to 1983. 590 F. Supp. at 365. In the period

from 1970 to 1982, black Democrats in general elections

within the challenged districts lost at three times the

rate of white Democrats. Tr. 114.

The district court’s findings with respect to the 1982

elections showed that there were “enough obviously aber-

rational aspects in the most recent elections,” 590 F.

Supp. at 367, to disprove the contention that blacks were

not still disadvantaged in the multi-member districts

at issue. Although black Democratic candidates did en-

joy some degree of success, it did not nearly rival the

success of white Democratic candidates, not a single one

of whom lost in the general elections. Tr. 114, 115. In

House District 36, a black Democrat won one of the 8

seats in the district in 1982. Since there were only seven

white candidates for the 8 seats in the primary, it was

a mathematical certainty that a black would win. Id.

at 369. In House District 23, there were only 2 white

candidates for 3 seats in the 1982 primary, and the

black candidate ran unopposed in the general election,

but still received only 43% of the white vote. Jd. at 370.

In three other elections prior to 1982, the same black

candidate won in unopposed races, yet failed to receive

a majority of white votes in each contest. Jd.

16

The district court made two critical findings of fact

concerning the purported electoral successes of blacks in

North Carolina. First, even in elections where black can-

didates were victorious, witnesses for the plaintiffs and

defendants alike agreed that the victories were largely

due to extensive single-shot voting by blacks. Tr. 85,

181, 182, 184, 1099. Even the defendants’ expert witness

conceded that, “as a general rule,” black voters had to

single-shot vote in the multimember districts at issue

in order to elect black candidates. Tr. 1437. Thus the

district court determined, loi ne revealed consequence

of this disadvantage is that to have a chance of success

in electing andidates of their choice in these districts,

black voters must rely extensively on single-shot voting,

thereby forfeiting by practical necessity their right to

vote for a full slate of candidates.” 590 F. Supp. at 369.

Second, the district court also concluded that the evi-

dence at trial showed that in several of the 1982 elec-

court's conclusion that:

17

numbers and too recent in relation to the long his-

j ve

electi

to compel or even arguably to support

finding that a black candidate’s race is

significant adverse factor in the political processes of

the state—either generally or specifically in the areas

of the challenged districts.

590 F. Supp. at 367. In reviewing this issue, this Court

should defer to the “intensely local appraisal of the de-

sign and impact of the . . . multimember districts,”

White, 412 U.S. at 670, which the three-judge district

court gave the facts of this case. On this issue, appel-

lants’ contentions are wrong as a matter of law, and

the district court’s factual findings are supported by

substantial evidence and are not clearly erroneous."

B. Appellants’ Claim that the District Court Imposed

nents of the 1982 Amendment to the Voting Rights

Act.

Without doubt the most inflammatory claim that can

be raised in a vote dilution case is the charge of pro-

portional representation. Cf. United Jewish Organiza-

tions v. Carey, 430 U.S. 144, 156-167 (1977). Appel-

lants seek to obscure the district court’s careful exam-

ination of all the White Zimmer factors by raising the

blazing charge that the district court “flatly” stated a

standard of “guaranteed proportional representation.”

Br. for Appellants at 19. In appellants’ eyes, any ref-

erence to the actual proportions of blacks in North Caro-

lina as compared to black electoral success reveals the

entire factual inquiry to have been a subterfuge designed

to conceal an imposition of proportional representation.

The district court opinion, however, expressly disavows

any contention that a violation of Section 2 can be estab-

lished by “the fact that blacks have not been elected

under a challenged districting plan in numbers propor-

“4 See Pullman-Standard „ Swint, 456 US. 273, 287 (1982);

Fed. Rule Civ. Pro. 52(a).

18

tional to their percentage of the population.” 590 F.

Supp. at 355.

Consideration of minority electoral success is one of

many evidentiary factors which the case law and legis-

lative history of the Voting Rights Act specify as proper

grounds for judicial examination. The leap from the

evidentiary weighing of the rate of success to an ipso

facto creation of an entitlement to proportional repre-

sentation is derived from the arguments made by op-

ponents of the 1982 Amendments to the Voting Rights

Act, namely that there is no intelligible distinction be-

tween a results test and proportional representation.”

The argument that consideration of the rate of electoral

success as one evidentiary factor inevitably yields pro-

portional representation was firmly rejected both by

the sponsors of the original amendment and the pro-

ponents of the Dole compromise. See, e.g., S. Rep. at 33

(“{T]he Section creates no right to proportional repre-

sentation for any group”); id. at 194 (Additional Views

of Senator Dole) (“I am confident that the ‘results’ test

will not be construed to require proportional representa-

tion”). Since the district court properly considered the

totality of circumstances under the mandated legal

standards, the efforts to persuade this Court that it in

fact required proportional representation can only be

understood as an invitation te embrace the views of

opponents of the 1982 amendments and should categor-

ically be declined.

5 See e.g., 1 Voting Rights Act: Hearings on S. 53 et al. Before

the Subcomm. on the Constitution of the Senate Comm. on the

to establish the concept of ‘proportional representation’ by race as

the standard by which courts evaluate electoral and voting deci-

sions”). A full discussion of the proportional representation objec-

tions of the legislation’s opponents can be found in the Senate

Subcommittee’s Report. See 8. Rep. at 139-147 (Voting Rights

Act: Report of the Subcomm. on the Constitution); see also id. at

186-87 (Attachment B of Subcommittee Report: Selected Quotes

on Section 2 and Proportional Representation) .

19

III. APPELLANTS SEEK TO NULLIFY THE 1982

AMENDMENT TO THE VOTING RIGHTS ACT BY

FORECLOSING THE JUDICIAL INQUIRY INTO

THE TOTALITY OF THE CIRCUMSTANCES

WHICH GIVE RISE TO CLAIMS OF VOTE DILU-

TION.

A. The Use of Statistical Analysis and Lay Witnesses

to Establish Racially Polarized Voting Without

Any Inquiry Into Voter Motivation Is Fully Sup-

ported by the Case Law and the Legislative History

of Section 2.

Appellants argue that the district court employed an

erroneous legal standard in concluding that the facts of

this case showed a high degree of racially polarized vot-

ing. They contend that the district court adopted a per

se rule that racial bloc voting occurs whenever less than

50 percent of the white voters cast ballots for black can-

didates. Br. for Appellants at 36.“

Racially polarized voting is a key component of a vote

dilution claim, as emphasized both by Congress and this

Court. “In the context of such racial bloc voting, and

other factors, a particular election method can deny

minority voters equal opportunity to participate mean-

ingfully in elections.” 8. Rep. at 33. As this Court

wrote in Rogers,

Voting along racial lines allows those elected to ig-

nore black interests without fear of political conse-

and without bloc voting the minority candi-

) would not lose elections solely because of their

race.

458 U.S. at 623. Racially polarized voting, when proven,

provides a court with a critical evidentiary piece show-

™ The Solicitor General conceded in his brief in support of

the Jurisdictional Statement that “[a)ppellants’ restatement of

the district court's standard for racial bloc voting is imprecise,”

since “the district court did not state that polarization exists un-

less white voters support black ca’.didates in numbers at or exceed-

ing 50%.” Br. for the U.S. as Amicus Curiae at 13 n.10.

ing the political ostracism of a racial minority. City of

Rome v. United States, 472 F. Supp. 221, 226 (D.D.C.

1979), aff'd, 446 U.S. 156 (1980). When combined with

either at-large elections or a suspected gerrymander, bloc

voting provides important confirmation that the poten-

tial structural impediments to minority political oppor-

tunity will in fact bar equal opportunity and the ability

to elect representatives perferred by the minority com-

munity. See Marengo County, 731 F.2d at 1566-67

(racially polarized voting ordinarily the “keystone” of

a dilution claim); Nevett v. Sides, 571 F.2d 209, 223

n.16 (5th Cir. 1978), cert. denied, 446 U.S. 951 (1980).

At bottom, racially polarized voting is that which

„follow Is] racial lines. United Jewish Organiaztions,

430 U.S. at 166 n.24. Courts construing the 1982 amend-

ment to Section 2 have found racially-polarized voting

when the facts show a consistent pattern of a majority

of one race voting opposite to the majority of the other

race. McMillan II, 748 F.2d at 1043. Whether or not

a Section 2 violation has been proved depends upon the

degree of racially polarized voting, le., “the extent to

which voting in the elections of the state or political sub-

division is racially polarized.” S. Rep. at 29 (emphasis

added).

In the present case, based on evidence presented by ex-

pert witnesses and corroborated by the direct testimony

of lay witnesses, the district court concluded that “within

all the challenged districts racially polarized voting ex-

ists in a persistent and severe degree.” 590 F. Supp. at

367. In direct reliance on the language of the Senate

Report, the district court framed the inquiry in terms of

„determining! the extent to which blacks and whites

vote differently from each other in relation to the race of

the candidate.” 590 F. Supp. at 367-68 n.29. The district

court relied in part on testimony by plaintiffs’ expert wit-

ness, Dr. Bernard Grofman, whose comprehensive study

of racial voting patterns in 53 elections in the challenged

21

districts revealed consistently high correlations between

the number of voters of a specific race and the number of

votes for candidates of that race. These correlations were

so high in each of the elections studied that the prob-

ability of occurrence by chance was less than one in

100,000. 590 F. Supp. at 368.

The district court analyzed elections in each of the

challenged districts to conclude that, in each district,

racial polarization “operates to minimize the voting

strength of black voters.” Jd. at 372. This conclusion

was buttressed by the observations of numerous lay wit-

nesses involved in North Carolina electoral politics. The

uncontroverted evidence showed that no black candi-

date received a majority of white votes cast in any of the

Appellants challenge the methodology utilized by plain-

tiffs’ expert witness as being “severely flawed.” Br. for

Appellants at 41. As the district court opinion makes

clear, that methodology depended upon two distinct types

of statistical analysis, ecological regression and homoge-

neous precinct analyses. These statistical studies were

further corroborated by the lay testimony of direct par-

ticipants in North Carolina politics. 590 F. Supp. at 367-

68 n.29.

Appellants contentions run directly contrary to the pre-

ponderance of cases decided prior to City of Mobile, which

Congress intended the courts to follow, as well as those

applying Section 2 after its 1982 amendment. In

pre-City of Mobile cases, courts relied on statistical

8 F

:

|

Ln

5

:

5

ing by a showing of a high degree of association between

the racial composition of the voting precincts and the race

of the candidate for whom votes were cast. See, e. g.

Graves b. Barnes, 343 F. Supp. 704, 731 (W.D. Tex.

1972) (three-judge court), aff'd sub nom. White v. Reges-

ter (polarized voting established by Mexican-Americans

voting overwhelmingly for candidates of own national

background and whites voting overwhelmingly for white

candidates In conformity with this approach, the eco-

logical or bivariate regression analysis performed by Dr

Grofman compared the votes for minority candidates in

different precincts with the racial composition of that

precinct in both racially segregated and racially mixed

precincts. As the district court observed, the result of

|

|

I

consistent, and substantively significant if it is of a

cient magnitude to affect the outcome of an election.

F. Supp. at 367-369. See McMillan v. Escambia

(McMillan 1), 638 F.2d 1239, 1241-42 n6 (5th Cir.

1981), aff'd on rehearing, 688 F.2d 960, 966 n.12 (5th

Cir. 1982), rev'd on «ther grounds, Escambia County v.

McMillan, —— US. , 80 L.Ed.2d 36 (1984); Me-

Millan II. 748 F.2d at 1043 n.12 (‘affirming i

of bloc voting and related findings made in

The use of regression analysis to

121

i

1

i

ne

fe

;

1

f

5

4

See Parnell v. Rapides Parish School Board, 425 F.

405 (W.D. La. 1976), afd, 563 F.2d 180 (5th Cir. 1978

nied, 438 U.S. 915 (1978) (regression analysis

i!

8

f

3

15705

11

a

|

if

23

amendment.“

The additional statistical study performed by Dr.

Grof man, homogeneous precinct analysis (also known as

“extreme case” analysis), is an accepted statistical method

comparing the vot’:.g patterns in precincts with heavy

concentrations of one race and other precincts with com-

parable concentrations of another race. See City of Port

Arthur v. United States, 517 F. Supp. 987, 1007 n.136

(D. D.C. 1981), aff'd, 459 U.S. 159 (1982).”

In addition, ample precedent supports the district

court’s reliance on non-statistical evidence to supplement

the testimony of experts.”

of the Voting Rights Act: A Social Science Perspective, 7 Law

and Policy 199 (1985).

18 See Jordan v. Winter, 604 F. Supp. 807, 812-813 (N.D. Miss.

1984), aff'd sub. nom. Mississippi Republican Executive Committee

v. Brooks, —— U.S. ——,, 83 L.Ed.2d 343 (1984) (bivariate regres-

sion analysis indicated high level of racial polarization) ; Marengo

County, 731 F.2d at 1567 n.35 (affirming district court’s acceptance

of regression analysis to show polarization); Jones v. City of

Lubbock, 727 F.2d 364, 380 (5th Cir. 1984) (bivariate regression

analysis provided strong basis for court’s finding of polarization) ;

NAACP v. Gadsden County School Board, 691 F.2d 978, 983 (11th

Cir. 1982) (same regression technique used in McMillan I demon-

strated polarization).

1” See, e.g., Terrell, supra, 565 F. Supp. at 348; Port Arthur,

supra, 517 F. Supp. at 1007 n.136. See also Perkins v. City of West

Helena, 675 F.2d 201, 213 (8th Cir. 1982), aff'd mem. 459 U.S. 801

(1982); Lipscomb v. Wise, 399 F. Supp. 782, 785-786 (N.D. Tex.

1975), rev'd on other grounds, 551 F.2d 1043 (5th Cir. 1977), rev'd,

437 U.S. 535 (1978)

2° See Major v. Treen, 574 F. Supp. 325, 338 (E.D.La. 1983)

(testimony of trained political observers considered probative of

bloc voting); Terrell, supra, 565 F. Supp. at 348; Rome, supra, 472

F. Supp. at 226-227 (finding testimony of black deponents highly

probative of bloc voting); Boykins v. Hattiesburg, No. HT77-

0062(C), slip op. at 15 (S.D. Miss., March 2, 1984) (“lay witnesses

from the White community . confirmed that members of the

White community continue to oppose and fear the election of

Blacks to office.

24

B. Appellants and the Solicitor General Seek to Re-

impose an Intent Standard Onto Section 2 Claims

by Requiring Proof of Motivation of Voters.

Despite the district court’s use of statistical and lay

witness evidence “to determine the extent to which blacks

and whites vote differently from each other in relation to

the race of candidates,” 590 F. Supp. at 367-68 n.29, ap-

pellants persist in charging that a per se rule was im-

posed. To the contrary, only after concluding that sub-

stantively significant racial polarization existed in all but

two of the elections analyzed did the district court note

that no black candidate had received a majority of the

white votes cast. The court specifically referred to this

finding as one of a number of additional facts” which

“support the ultimate finding that severe (substantively

significant) racial polarization existed in the multi-mem-

ber district elections considered as a whole.” Id. at 368

(emphasis supplied).

The principal method for measurement of racial po-

larization relied on by the court below was the statisti-

cally significant correlation between the number of voters

of a specific race ard the number of votes for candidates

of that race. 590 F. Supp. at 367, 368. The Solicitor

General’s charge that, under the lower court’s method-

ology, a “minor degree of racial bloc voting would be suf-

ficient to make out a violation,” Br. for U.S. at 29, is

gravely misleading since it confuses the lower court’s

definition of substantive significance with the court’s ini-

tial definition of racial polarization as also requiring

statistical significance. Contrary to the Solicitor Gen-

eral’s conclusion that a “minor degree of racial bloc vot-

ing would be sufficient to make out a violation,” Br. for

U.S. at 29, a low correlation would result in a finding of

a low extent of polarization and would weigh against an

ultimate conclusion of impermissible vote dilution.”"

21 Thus, the hypothetical situation in which a white candidate

receives 51% of the white vote and 49% of the black vote and an

Both the Solicitor General and appellants propose meth-

ods to discount the importance of racial bloc voting by

requiring proof that racial motivation underlies the dis-

parate voting patterns. Appellants would hold plaintiffs

to a nightmarish standard of conclusively establishing the

intent of the electorate by disproving possible motivation

by “any other factor [besides race] that could have in-

fluenced the election.” Br. for Appellants at 42. The

Solicitor General similarly advocates a standard requir-

ing plaintiffs to show that minority candidates .. .

lose elections solely because of their race.“ Br. for U.S.

at 31 (quoting Rogers v. Lodge). This standard, it is

argued, would render racial bloc voting “largely irrele-

vant,” id.; if a losing black candidate receives some un-

specified amount of white support, this would demon-

strate that motivational factors other than race play a

role in the election.

Congress has made it plain that Section 2 plaintiffs are

no longer required to ascribe nefarious motives to the

individuals or community responsible for discriminatory

election results; thus, it is immaterial whether white

voters refuse to vote for black candidates “solely because

of race” or because of some other factor closely associated

with race. The impact of racial bloc voting on minority

political participation is the same regardless of the ex-

opposing black candidate gets the reverse would clearly not con-

stitute severe polarization, as the Solicitor General contends. See

Br. for U.S. at 29. In fact, since such a disparity would not be

statistically significant, it would not constitute racial polarization

at all. The suggestion that the district court’s definition of racial

polarization would invalidate numerous electoral schemes across the

country, see id. at 30, conveniently ignores the fact that the court’s

correlation analysis correctly focused on “the extent to which

voting . is racially polarized.” S. Rep. at 29 (emphasis supplied).

Racial polarization is properly evaluated as a question of degree,

and not as a dichotomous characteristic which is legally conclusive

if present and irrelevant in all other cases.

26

planation or motivation for that phenomenon.” In the

presence of other White/Zimmer factors, if white voters

consistently shun black candidates for reasons other than

race, the result is still that the black community is effec-

tively shut out of the political process.“ In delineating

the factors relevant to a showing of unequal opportunity

to participate in the political process, Congress relied

heavily on federal Courts of Appeals’ interpretations of

White, none of which adopted a definition of racial polari-

zation that supports the standard urged here—in fact,

most of them required no formal proof of polarization

whatsoever.** Moreover, last Term, this Court rejected

the argument that racial motivation of voters casting bal-

lots for candidates of their own race must be established

to prove racially polarized voting. Mississippi Republican

Executive Committee v. Brooks, US. ——, 83 L.Ed.

22 See Engstrom, The Reincarnation of the Intent Standard:

Federal Judges and At-Large Election Cases, 28 Howard L.J. No. 2

(1985) (forthcoming).

2 This point is also responsive to appellants’ objections to the

statistical methodology relied upon by the district court, which

was characterized by appellants’ own expert witness as a standard

methodology for measuring racial voting polarization. Tr. at 1445.

It simply does not matter whether “race is the only explanation

for the correspondence between variables.” Appellants’ Brief at 42.

Where differential voting along racial lines exists, for whatever

combination of reasons, the result in the context of structural im-

pediments such as at-large or multimember district elections can

be a dilution of the minority vote which renders minorities unable

to elect representatives of their choice. This result is a violation

of the Voting Rights Act regardless of the existence or nonexistence

of proof of racial animus on the part of whites who fail to vote

for blacks.

See, e.g., Ferguson v. Winn Parish Policy Jury, 528 F.2d 592

(5th Cir. 1976); Robinson v. Commissioners Court, 505 F.2d 674

(5th Cir. 1974); Moore v. Leflore County Bd. of Election Comms,

502 F.2d 621 (5th Cir. 1974); Turner v. McKeithen, 490 F.2d 191

(5th Cir. 1973). The original Zimmer factors themselves did not

even include racially polarized voting. See Zimmer, 485 F.2d at

1305.

27

2d 343.“ It should likewise reject the argument in this

case.

IV. LAIXS OF VOTE DILUTION, LIKE ALL CLAIMS

OF AN ABRIDGMENT OF THE FRANCHISE, ARE

ENTITLED TO SPECIAL JUDICIAL SOLICITUDE.

Based upon an exhaustive review of the totality of cir-

cumstances involved in the North Carolina legislative

elections, the district court unanimously concluded, under

the statutory results test, that the legislative redistrict-

ing abridged the voting rights of blacks. Of particular

siguificance, the court detailed the continued taint of dis-

crimination upon all walks of North Carolina’s civil life.

As the Voting Rights Act and other pieces of civil rights

legislation make clear, the political processes may pro-

vide critical relief for the victims of past and continuing

discrimination—providing that those channels are open to

victimized minorities.

The Voting Rights Act sets out to remove structural

barriers to minority access to political processes in order

to facilitate the removal of the vestiges of discrimination.

The Act corresponds to a heightened standard of judicial

scrutiny set down by this Court nearly half a century ago:

Prejudice against discrete and insular minorities

may be a special condition . . . curtailing the opera-

tion of those political processes ordinarily to be re-

lied upon to protect minorities, and [so] may call for

a correspondingly more searching judicial inquiry.

* Defendants, represented by the same counsel as at present,

argued that, “The use of a regression analysis which correlates

only racial make-up of the precinct with race of the candidate

ignores the reality that race may mask a host of other ex-

planatory variables. [Jones v. City of Lubbock, 730 F.2d 233, 235

(5th Cir. 1984) (Higginbotham, J., concurring Jurisdictional

Statement, Allain v. Brooks, No. 83-2053, at 12-13. This Court

summarily affirmed the district court’s decision in that case and,

therefore, “reject{ed} the specific challenges presented in the state-

ment of jursidiction,” Mandell v. Bradley, 432 U.S. 173, 176 1977

United States v. Carolene Products Co., 304 U.S. 144, 152

n.4 (1938). Foremost among the rights specified by what

Justice Powell has termed “the most celebrated footnote

in constitutional law,” * is the right to vote. Id., citing

Nixon v. Herndon, 273 U.S. 536 (1927) and Nixon v.

Condon, 286 U.S. 73 (1931). This Court has repeatedly

stressed the need for judicial vigilance in claims of vote

dilution or abridgment, as set forth in the Carolene Prod-

ucts footnote:

Undoubtedly, the right of suffrage is a fundamental

matter in a free and democratic society. Especially

since the right to exercise the franchise in a free and

unimpaired manner is preservative of other basic

civil and political rights, any alleged infringment of

the right to vote must be carefully considered and

meticulously scrutinized.

Reynolds v. Sims, 377 U.S. 533, 561-562 (1964) ; see also

Harper v. Virginia State Bd. of Elections, 383 U.S. 663

(1966); Yick Wo v. Hopkins, 118 U.S. 356 (1886).

The right to vote is listed first in the Carolene Prod-

ucts footnote among those rights that may warrant

“ .. more exacting judicial scrutiny ...,” since in-

fringements on this right restrict “those political proc-

esses which can ordinarily be expected to bring about

repeal of undesirable legislation 304 U.S. at 152

n.4. Similarly, Congress has recognized that the right to

vote “includes the right to have the vote counted at full

value without dilution or discount. S. Rep. at 19

(citing Reynolds, 377 U.S. at 555 n.29). As this Court

concluded in White v. Regester, where the totality of cir-

cumstances indicate that minority citizens have not been

able to “enter into the political process in a reliable and

meaningful manner,” court remedies are indispensable to

bring the minority community into “the full stream of

26 Powell, J., Carolene Products Revisited, 82 Col. L. Rev. 1087

(1982).

dl

political life . . 412 U.S. at 7 7. 769. In incorporating

White and its progeny into the statutory results test, Con-

gress repeatedly emphasized the importance of keeping

political processes equally open to minorities:

Section 2 protects the right of minority voters to be

free from election practices, procedures, or methods

a eee eee

in the political process as other citizens enjoy. .

Tho reysirement thet the polltioal — leading

So long as the paths to political success remain closed,

blacks remain the “discrete and insular” minorities of the

Carolene Products footnote to whom a special measure of

judicial solicitude is owed. See Ackerman, Beyond Caro-

lene Products, 98 Harv. L. Rev. 713, 733-37 (1985) (need

for political success for minorities to transcend “pariah”

role in political process). Conversely, “representation-

reinforcing” judicial intervention is the most efficacious

manner by which this Court may insure that the goals of

two decades of statutory civil rights litigation may one

day be met.

* J. Ely, Democracy and Distrust, 101-103, 117 (1980).

id. at 103:

Malfunction occurs when the process is undeserving

r

.

i

IIe a

change to ensure that they will stay in and the outs will stay

out, or (2) though no one is actually denied a voice or a vote,

representatives beholden to an effective majority are sys-

tematically disadvantaging some minority out of simple hos-

i

tility or a prejudiced refusal to recognize

interest, and thereby denying that minority the

afforded other groups by a representative system.

165 East 56 Street

New York, New York 10022

(212) 751-4000

Attorneys for Amici Curiae **

* Counsel of Record