# Amicus Curiae Brief — Thornburg v. Gingles

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1986
- **Citation:** 478 U.S. 30

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0785%3A18. Public record. Not legal advice.