# 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

NO). 83-1968

IN THI

Supreme Court of the United States

October Term, 1985

ON APPEAL FROM THE UNITED STATES DISTRICT COURI
FOR THE EASTERN DISTRICT OF NORTH CAROLINA

MOTION FOR LEAVE TO FILE BRIEF AND BRIEF Ol!
AMICI CURIAE IN SUPPORT OF APPELLEES OI
AMERICAN CIVIL LIBERTIES UNION FOUNDATION,
INC., LEAGUE OF WOMEN VOTERS OF THE UNITED
SLATES; AND, LEAGUE OF WOMEN VOTERS
EDUCATION FUND

LAUGHLIN MCDONALD" CYNTHIA HILI

Nem. BRADLEY League of Wome!
American Civil Liberties Unio! Voters Education Fund
Foundation, Inc 1730 M. St., N.W

$2 Fairlie St., N.W Washington, D.C. 20
Atlanta, GA 30303 (202) 429-1965

(404) 523-272!

Of Counsel
Maureen IT. [1
| EAGUE OF WOMEN VOTER
EDUCATION I

ATTORNEYS FOR AMICI CURIAI

+ " »/ ; i. /
Counsel of Record

B BEST AVAILABLE COPY

TABLE OF CONTENTS

Page
Table of Authorities....... TTTTrT? iii
Motion for Leave to File Brief
Of Amici Curiae......ccccccccccece ma

Interests of Amici Curiae.........l

Statement of the Case...... ccccccee
Summary of Argument............ coed
| ceecces 5

I. The Election of a Token Number

II.

of Minority Candiates Does Not
Foreclose a Section 2
Challenge.

A.

The Statute and the
Legislative History.......5

Congressional Policy Favors
Strong Enforcement of Civil
Meee EGMBecccccccccesoscdl

The District Court Properly
Found Racial Bloc Voting.

A.

B.

The Court Applied Correct
Standards....... ee ee |

The Court's Methodolgy
Was Acceptable....... oceee 242

C. This Court Should Not Adopt
A Rigid Definition or Method
of Proof of Bloc Voting....52
Come lwueiGBccccceee eee ee eeeeeesenennel

Appendix | SyrTrriftiegftstesegff:)...ti‘CSO!OUOCOw#!”

atta

TABLE OF AUTHORITIES

Cases Page(s)

Alexander v. Louisiana,
ee Wats Gee CASTE) ccccccccceces 55,56,57

Allain v. Brooks,
heh eek eee ecececcses 48

Berry v. Cooper,
577 F.2d 322
Pn Ma BME De ccctecccccccccces 55

Bolden v. City of Mobile
423 F. Supp. 384
ES. | ee 44

Castaneda v. Partida,
mae Wate Ge CASI dcccccccccccecs 55,57

City of Mobile v. Bolden,
ee Wate BE CABBO) .cccccceccecce passim

City of Rome, Georgia v.
United States,
472 F. Supp. 221 (D.C. 1979)..... 62

City of Rome v. United States,
ie ie CRUD occcecccececess 62

City of St. Petersburg v.
United States, 354 F. Supp.
DO IPGINEEE BUUED cccccccccceccces 44

Cross v. Baxter,

604 F.2d 875
DTS MPM Rs ceocctcccecesces 25,60,61

-iii-

Cases, cont'd. Page(s)

Foster v. Sparks,
506 F.2d 805, 811-37

(Sth Cir. 1975). ccccccccccccece 54
Garcia v. United States,

U.S. ’ 105 S. Ct. 479
Perr *enseee#erjfe## e*enrereeeses#feerngefe#fjee#ekeje# # 21
Gingles v. Edmisten,

590 F. Supp., 345 (E.D.N.C. 28,38
LOSS) cccecceseseeeess oeeesees -- 39,42
Hunter v. Underwood,

S.8- , 105 S. Ct. 1916
¢\.. | PperryYrrrrr err er ee xi
Jones v. City of Lubbock,

730 F.2d 233, 727 F.2d 364 xiii,45
(Sth Cir. 1984)... ccccccccccececs 47,48,49

Jordan v. Winter,
Civ. No. GC-80-WK-O
(N.D. Miss. April 16, 1984)...... 47

Kirksey v. Board cf Supervisors,
554 F.2d 139
(Sth Cir. 1977) ..cccccccccccccccce 25

Lodge v. Buxton,
Civ. No. 176-55
(S.D. Ga. Oct. 26, 1978)...--eeees 43

Major v. Treen,
574 F. Supp. 325
(E.D. La. 1983)... ce ceeeeeeeeces --26

Mandel v. Bradley,
432 U.S. 173 (1977)... eee eeeeeeees 49

Cases Page(s)

McCain v. Lybrand,
U.S. , 104 S.Ct. 1037

McMillan v. Escambia County,
748 F.2d 1037
[eee ee 6 B48 66446656 cece seeees 45

Mississippi Republican Executive
Committee v. Brooks, U.S. ‘
105 BeGte 416 (1984) oeeeeeeeeeeee 48,49

NAACP v. Gadsden County School Board,
691 F.2d 978

Cane Gel 6 RUE 6 400 40S 00 460666 0ednns 45
Nevett v. Sides,

273 F.26 209 (Sh Cir. 1978) .ccccvces 45
Rogers v. Lodge, xii
See weme Cae Cem les s'06escueseesusces 44

Rybicki v. State Board of Elections,
574 F. Supp. 1147
[os Seed BE ede aeeeGaceaeeeee Terry? ..

Stephens v. Cox,
S69 7.26 G37 (4h Ci. 19Fh)cccccescec 55

South Carolina v. Katzenbach,
363 U.8. BOL (1966). ccc 660440608 0u4 30

Swain v. Alabama,
330 UB. BOS (1968) wccccccs Seeeeer 53,54

United States v.

Dallas County Commission,
739 F.2d 1529 (llth Cir. 1984).....51

-V-

Cases, cont'd Page(s)

United States v. Jenkins,
496 F.2d 57 (2d Cir. 1974)......... 34

Unites States v.

Marengo County Commission,

731 F.2d (llth Cir. 25,
LGBR) ccccccccscccccccecesesceceeses 43,45

Velasquez v. City of Abilene,
725 F.2d 1017
(Sth Cir. 1984) .cccccccccccccccceccecs 26

White v. Regester, 412 U.S. 755
C1973) cccccccccccscccscccesesseses passim

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

Zuber v. Allen,
396 U.B. 168 (1969) .cccccccosecceces re }'

Constitutional Provisions:

Fifteenth Amendment......sceeeeeeees ll
Statutes

2B U.B.C. FlGCL.cccccccccccccccseses 33
42 U.B.C. FISTS .cccccccecsescsess passim
42 U.B.C. $200OM. ccccccccccccccceses 32
42 U.S.C. §2000e..... coccccecceccee oo33

Statutes, cont'd Page(s)

Pe. See. Deeebeenccenestevesncdceéees 31

OP BOOS Cibo ccc vvccvctescncececeses 31

Pe ees Bibs 64-480840060 560 ewe enbes 31

Pe GROG e BOOssccdvt deseeve eccccccees 10

Federal Jury Selection and Service 33

ABS GE 19GB. ccccccces cccecce cocces 34,35

Section 2,

Voting Rights Act of 1965....... passim

Section 5,

Voting Rights Act of 1965............ 31
Title II,

Civil Rights Act of 1965.......... 32,34
Title VII,

Civil Rights Act of 1964.......... 33,34
Voting Rights Act of 1965...... coves 30

Other Authorities

CONGRESSIONAL RECORD

BOe Gis Bie GOR s oe kccecbctesecene 1l
226 Comg. Rec. B3B39..cccciccccceseses 16
128 Cong. Rec. S6930..........02.- re |
A2S Comg. Rec. B69S6..cccccccccccceces 16

Other Authorities, cont'd Page(s)

CONGRESSIONAL RECORD
128 Cong. Rec. S6965...... ecopocesoeeos 16

128 Cong. Rec. S7139. eee eee cece eeees 16

Congressional Hearings

Voting Rights Act:
Hearings Before the Subcomm.
on the Constitution of the
Senate Comm. of the Judiciary,
Vol. 1, 97th Cong., 2d Sess.,
(1982) -cccccccccccecce TYTTTTT 14,24

Congressional Reports

H.R. Rep. No. 914, 88th
Cong., 2d Sess. (1963).........- 32,33

H.R. Rep. No. 1076, 90th
Cong., 2d Sess. (1968)......... sccoda

House Rep. No. 97-227, 97th Cong.,
lst Sess. (1981).........4.. --13,19,20

Senate Rep. No. 97-417, 97th Cong.,
2d Sess. (1982)...... swéeees ..-passim

Voting Rights Act: Report of the
Subcomm. on the Constitution of
the Senate Comm. on the Judiciary,
97th Cong., 2d Sess. (1982)......... 13

-viii-

House and Senate Bills Page(s)
Bee DEbSe eee ovevcecescecseseveocs 11,16
Bo BPOSseeoeecevevecvoeseeeseoéosses 16

-ix-

No. 83-1968
IN THE
SUPREME COURT OF THE UNITED STATES

October Term, 1985

LACY H. THORNBURG, ET AL.,

Appellants,

versus

RALPH GINGLES, ET AL.,
Appellees.

ON APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT
OF NORTH CAROLINA

MOTION FOR LEAVE TO FILE BRIEF OF AMICI
CURIAE IN SUPPORT OF APPELLEES OF
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION, INC.; LEAGUE OF WOMEN
VOTERS OF THE UNITED STATES; AND,
LEAGUE OF WOMEN VOTERS EDUCATION FUND

Come now the above listed
organizations, by counsel, and move the
Court for leave to file a brief amici

curiae in support of the Appellees in

-xXx-

the above styled cause.?+

The American Civil Liberties Union
Foundation, Inc. (ACLU) is a non-profit,
nationwide, membership organization
whose purpose is the defense of the
fundamental rights of the people of the
United States. A particular concern of
the ACLU is the enforcement of the
Fourteenth and Fifteenth Amendments, and
implementing legisiation enacted by
Congress, in the area of minority voting
rights. Attorneys associated with the
ACLU have been involved in numerous
voting rights cases on behalf of racial
minorities, including, most recently in

this Court, Hunter v. Underwood,

U.S. », 105 S. Ct. 1916 (1985);

lcounsel for “he Appellants have not
given consent to the filing of this
brief.

-Xli-=-

McCain v. Lybrand, U.S. , 104

S. Ct. 1037 (1984); and Rogers v. Lodge,

458 U.S. 613 (1982).

The League of Women Voters of the
United States (LWVUS, or League) is a
national, nonpartisan, nonprofit
membership organization with 110,000
members in all 50 states, the District
of Columbia, Puerto Rico and the Virgin
Islands. The LWVUS's purpose is to
promote political responsibility through
informed and active participation of
citizens in government. The LWVUS
believes voting is a fundamental right
that must be fostered and protected.
With its network, the LWVUS was a major
participant in the effort to strengthen
and extend the Voting Rights Act in
1982. Leagues and the LWVUS have been
active in voting rights litigation.

The League of Women Voters

-xii-

Education Fund (LWVEF), an affiliate of
the LWVUS, is a nonpartisan, nonprofit
education organization, one of whose

purposes is to increase public
understanding of major public policy
issues. The LWVEF provides a variety of
services, including research,
publications, monitoring and litigation
on current issues, such as voting rights
and election administration. The

LWVEF's docket includes Jones v. City of

Lubbock, 730 F.2d 233, 727 F.2d 364 (5th

Cir. 1984), in which a local League
member was a named plaintiff.

This case presents important issues
involving the application of Section 2
of the Voting Rights Act of 1965, 42
U.S.C. § 1973, and whether the statute
protects equal, or as argued by
Appellants and the United States, merely

token minority access to the political

-xlii-

process. Because of the experience of
amici in advocating minority voting
rights, and because the parties may not
adequately present the Section 2 issues
discussed in this brief, amici believe
their views may be of some benefit to
the Court in resolving the issues raised

in this appeal.

Respectfully submitted,

Laughlin McDonald” Cynthia D. Hill
Neil Bradley League of Women
American Civil Voters Education
Liberties Union Fund

Foundation, Inc. 1730 M. St., N.W.

52 Fairlie St.,N.W. Washington, D.C.
Atlanta, GA 30303 20036
(404) 523-2721 (202) 429-1965

Of Counsel:
Maureen T. Thornton
League of Women Voters
Education Fund
Attorneys For Amici Curiae

Counsel of Record

-xiv-

No. 83-1968

IN THE
SUPREME COURT OF THE UNITED STATES

October Term, 1985

LACY H. THORNBURG, ET AL.,

Appellants,
versus
RALPH GINGLES, ET AL.,
Appellees.

ON APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT
OF NORTH CAROLINA

BRIEF OF AMICI CURIAE IN SUPPORT OF
APPELLEES OF AMERICAN CIVIL LIBERTIES
UNION FOUNDATION, INC.; LEAGUE OF WOMEN
VOTERS OF THE UNITED STATES; AND,
LEAGUE OF WOMEN VOTERS EDUCATION FUND

INTEREST OF AMICI CURIAE

The interests of amici curiae are
set forth in the motion for leave to

file this brief, supra, p. x.

STATEMENT OF THE CASE

Amici adopt the statement of the
case contained in the Brief of

Appellees.

SUMMARY OF ARGUMENT

In 1982 Congress amended Section 2
of the Voting Rights Act, 42 U.S.C. §
1973, to make clear its purpose of
prohibiting voting procedures that
result in discrimination. The
construction urged upon this Court by
the Appellants and the Solicitor General
-- that the election of a token number
of minorities to office in the disputed
districts of North Carolina's 1982
legislative reapportionment forecloses a
challenge under Section 2 -- is totally

inconsistent with Congress's purposes in

amending Section 2.

The language and the legislative
history of Section 2 expressly show that
there is no validity to the argument
that minimal success by minority
candidates can be equated with fair and
effective participation of minorities in
the political process. Section 2 is
designed to protect the right to equal,
not token or minimal, participation.
The extent to which minorities have been
elected is only one of the factors to be
considered by a court in evaluating a
Section 2 claim.

Congress has articulated a policy
that favors strong enforcement of civil
rights. Such a policy clearly does not
embrace tokenism or minimalism in
voting. If the Appellants and the
Solicitor General prevail in their

argument, there will be no incentive for

jurisdictions to comply voluntarily with
the Voting Rights Act, but instead they
will be encouraged to resist and to
circumvent Section 2.

The district court applied correct
legal standards and methods of analysis
in finding racial bloc voting. The
imposition of any rigid definitions or
methodologies for proving bloc voting
would be inconsistent with the purposes
of Section 2, would unduly burden
Minority plaintiffs and in some cases
would make it impossible to challenge
discriminatory voting practices.

The judgment below should be
affirmed on the grounds that the trial

court properly applied Section 2.

ARGUMENT

I. THE ELECTION OF A TOKEN NUMBER OF

MINORITY CANDIDATES DOES NOT

FORECLOSE A SECTION 2 CHALLENGE.

A. The Statute and the
Legislative History

Both the Appellants and the
Solicitor General, as counsel for amicus
curiae the United States, argue that the
election of a token number of minorities
to office in the disputed districts of
North Carolina's 1982 legislative
reapportionment absolutely forecloses
Appellees’ challenge to the diluting
effect of at-large voting and multi-
member districting under Section 2 of
the Voting Rights Act of 1965, 42 U.S.C.
§$ 1973. See Appellants' Brief, p. 24:

"The degree of success at the polls

=Se

enjoyed by black North Carolinians is

sufficient in itself to distinguish this

case from White [v. Regester ,412 U.S.

755 (1973] and Mobile [v. Bolden, 446

U.S. 55 (1980) } and to-~ entirely
discredit the plaintiffs' theory that
the present legislative districts deny
blacks equal access to the political
process." (emphasis supplied); Brief for
the United States as Amicus Curiae, p.
27: "“multimember districts are not
unlawful where, as here, minority
candidates are not effectively shut out

of the electoral process."+

Ime Solicitor General, underscoring the
extremity of this position, noted that
"Ct]Jhe closest analogy to this case is
Dove v. Moore, supra, in which the court
of appeals upheld the validity of an at-
large system under which the 40% black
minority elected one member to an eight-
member city council.” (emphasis
supplied). Id., at 27-8.

The argument that minimal success
by minority candidates absolutely
forecloses a Section 2 challenge is
refuted by the language of the statute

itself. First, the statute requires

2Section 2 provides in full:

(a) No voting qualification or
prerequisite to voting or standard,
practice, or procedure shall be

imposed or applied by any State or
political subdivision in a manner
which results in a denial or
abridgement of the right of any
citizen of the United States to
vote on account of race or color,
or in contravention of the
guarantees set forth in section
1973b(£)(2) of this title, as
provided in subsection (b) of this
section.

(b) A violation of subsection (a)
of this section is established if,
based on the totality of
circumstances, it is shown that the
political processes leading to
nomination or election in the State
Or political subdivision are not
equally open to participation by
members of a class of citizens
protected by subsection (a) of this
section in that its members have
less opportunity than other members

[Footnote continued]

~ =

that political processes be “equally
open" to minorities, and that they not
have “less opportunity thar other
members of the electorate to participate
in the political process and to elect
representatives of their choice." The
right protected by the statute,
therefore, is one of equal, not token or
minimal, political participation.
Second, the statute directs the
trial court to consider "the totality of
circumstances” in evaluating a

violation, and provides that "[tJhe

of the electorate to participate in
the political process and to elect
representatives of their choice.
The extent to which members of a
protected class have been elected
to office in the State or political
subdivision is one circumstance
which may be considered: 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.

extent to which members of a protected
class have been elected to office in the
State or political subdivision is one
circumstance which may be considered."
Obviously, if black electoral success is
merely one of the “totality” of
circumstances which may be considered by
a court in evaluating a Section 2 claim,
a finding of minimal or any other level
of success could not be dispositive.
The statute on its face contemplates
that other circumstances may and should
be considered.

The legislative history of Section
2 makes the point explicitly. It
provides that factors in addition to the
election of minorities to office should
be considered, and that minority
candidate success does not foreclose the
possibility of dilution of the minority

vote. See Senate Rep. No. 97-417, 97th

Cong., 2d Sess. 29 4%n.1l5S (1982)
(hereinafter “Senate Rep.").

In 1982, Congress amended Section 2
to provide that any voting law or
practice is unlawful if it “results” in
discrimination on acount of race, color
or membership in a language minority.
96 Stat. at 134, §3, amending 42 U.S.c.
§ 1973. Prior to amendment, the statute
provided simply that no voting iaw or
practice “shal. be imposed or
applied...to deny or abridge the
right...to vote on account of race or
color" or membership in ae language

3

minority. A plurality of this Court,

3The statute provided in its entirety:
“No voting qualification or prerequisite
to voting, or standard, practice or
procedure shall be imposed or applied by
any State or political subdivision to
deny or abridge the right of any citizen
of the United States to vote on account
of race or color, or in contravention of
the guarantees set forth in Section

[Footnote continued]

@10<-

however, in City of Mobile v. Bolden,

446 U.S. 55, 60-1 (1980), held that "the
language of $2 no more than elaborates
upon that of the Fifteenth Amendment,”
which it found to require purposeful
discrimination for a violation, and that
“the sparse legislative history of $2
makes clear that it was intended to have
an effect no different from that of the
Fifteenth Amendment itself."

Congress responded directly to City

of Mobile by amending the Voting Rights

Act. The House, by a vote of 389 to 24,
passed an amendment to Section 2 on
October 5, 1981. 127 Cong. Rec. H7011
(daily ed., Oct. 5, 1981). The House
bill, H.R. 3112, provided (the language
in brackets was deleted and the language

in italics was added):

1973b(£)(2) of this Title.”

elle

Section 2. No voting
qualification or prerequisite to
voting, or standard, practice, or
procedure shall be imposed or
applied by any State or political
subdivision [to deny or abridge] in
a manner which results in a denial
or abridgement of the right of any
Citizen of the United States to
vote on account of race or color,
or in contravention of the
guarantees set forth in section
4(£)(2). The fact that members of
a minority group have not _ been
elected in numbers egual to _ the
group s proportion of the
population shall not, in and of
itself, constitute a violation of
this section.

As the Report of the House Committee on
the Judiciary explained, the purpose of
the amendment was "to make clear that
proof of discriminatory purpose or
intent is not required in cases brought
under that provision,” and "to restate
Congress' earlier intent that violations
of the Voting Rights Act, including
Section 2, could be established by

showing the discriminatory effect of the

o12-

challenged practice." House Rep. No.
97-227, 97th Cong., lst Sess. 29 (1981)
(hereinafter “House Rep.").

In the Senate, the Subcommittee on
the Constitution, chaired by Senator
Orrin Hatch, rejected the Section 2
amendment and reported out a ten year
extension of Section 5 and the other
temporary provisions of the Act by a

vote of 3 to 2. Voting Rights Act:

Report of the Subcomnm. on the

Constitution of the Senate Comm. on the

Judiciary, 97th Cong., 2d Sess. 6/7

(1982). The Senate Judiciary Committee,
however, pursuant to the so-called “Dole
Compromise," authored by Sen. Robert
Dole, returned the results standard to
Section 2 and added subsection (b),

taking language directly from White v.

Regester, 412 U.S. 755, 766 (1973). The

purpose of the addition was to clarify

o13<

that the amended statute "is meant to
restore the pre-Mobile legal standard
which governed cases challenging
election systems or practices as an
illegal dilution of the minority vote,”
and “embodies the test laid down by the
Supreme Court in White.” Senate Rep. at
27. The Senate bill also provided, as
did the House bill, that amended
Section 2 did not guarantee the right to
proportional representation. Id., Ge
30-1.

The Senate disclaimer was designed
to meet criticism, particularly § by
Senator Hatch, that the language of the
House bill would permit a violation of
the statute merely upon a showing of
lack of a ~proportional number of

minorities in office and “an additional

scintilla of evidence." Voting Rights

Act: Hearings Before the Subcomm. on the

-14-

ee eeeetinctednedtimnteedtiiatineditmnetinntinieet eae eS - Oe ee

Judiciary, Vol. 1, 97th Cong., 2d Sess.

516 (1982) (hereinafter “Senate
Hearings”). The compromise language was
intended to clarify (if indeed

clarification was needed) that a court
was obligated to look at the totality of

relevant circumstances and that, as in

"this White line of cases," minority
office holding was “one circumstance
which may be considered." 2 Senate

Hearings at 60 (remarks by Senator

Dole). The compromise language,
however, was not intended to alter in
any way the House bill's totality of
circumstances formulation based upon
White. That is made clear by the Senate
Report which provides that the
Committee's substitute language was
“faithful to the basic intent of the

Section 2 amendment adopted by the

-15-

House," and was designed simply “to
spell out more specifically in the
statute the standard that the proposed
amendment is intended to codify.”
Senate Rep. at 27.

The Senate passed the Senate
Judiciary Committee's Section 2 bili
without change on June 18, 1982. 128
Cong. Rec. S7139 (daily ed., June 18,
1982).* The Senate bill (S. 1992) was
returned to the House where it was
incorporated into the House bill (H.R.
3112) as a substitute, and was passed
unanimously. 128 Cong. Rec. H3839-46
(daily ed., June 23, 1982).

Both the House and Senate Reports

4prior to passage the Senate defeated by
a vote of 81 to 16 a proposed amendment
deleting the “results” language from the
bill introduced by Senator John East.
128 Cong. Rec. S6956, S6965 (daily ed.,
June 17, 1982).

-16-

give detailed guidelines on the
implementation of Section 2 and

congressional intent in amending the

statute. According to the Senate
Report, plaintiffs can establish a
violation by showing "a variety of

factors [taken from White, Zimmer vy.

McKeithen, 485 F.2d 1297 (5th Cir. 1973)

(en banc), aff'd on other grounds sub.

nom. East Carroll Parish School Board v.

Marshall, 424 U.S. 636 (1976), and other

pre-Bolden voting cases], depending upon
the kind of rule, practice, or procedure
called into question." Senate Rep. at
28. Typical factors include:

l. the extent of any history of
official discrimination in the
state or political subdivision that
touched the right of the members of
the minority group to register, to
vote, or otherwise to participate
in the democratic process;

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

#1 Je

3. the extent to which the state
or political subdivision has used
unusually large election districts,
majority vote requirements, anti-
Single shot provisions, or other
voting practices or procedures that
may enhance the opportunity for
discrimination against the minority

group;
4. if there is a candidate
slating process, whether the

members 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 process;

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

Te the extent to which members of
the minority group have’ been
elected to public office in the
jurisdiction.
Id., at 28-9.

The factors set out in the Senate
Report were not deemed to be exclusive,

but illustrative: “while these

-18-

enumerated factors will often be the
most relevant ones, in some cases other
factors will be indicative of the
alleged dilution.” Id. In addition,
Congress made it plain that "there is no
requirement that any particular number
of factors be proved, or that a majority
of them point one way or the other."
Id. Instead, Section 2 "“reguires the
court's overall judgment based on the
totality of circumstances and guided by
those relevant factors in the particular
case, Of whether the voting strength of
minority voters is...'minimized or
cancelled out.'” Id., at 29 n.118.

The House Report is to the same
effect: “the court should look to the
context of the challenged standard,
practice or procedure," and consider
"Lajn aggregate of objective factors"

taken from pre-Mobile decisions, similar

-19-

to those set out in the Senate Report.
House Rep. at 30. And like the Senate
Report, the House Report provides that
"CaJll of these factors need not be
proved to establish a Section 2
violation." Id.

Not only does the legislative
history provide that no one factor is
dispositive in vote dilution cases, and
that the courts should consider’ the
totality of relevant circumstances, but
the argument of the State and the
Solicitor General that minimal or token
minority candidate success forecloses a
statutory challenge was considered and
expressly rejected. While the extent to
which minorities have been elected to
office is a significant and relevant
factor in vote dilution cases, the
Senate Report indicates that it is not

conclusive.

-20-

The fact that no members of a
minority group have been elected to
office over an extended period of
time is probative. However, the
election of a few m. .ority
candidates does not ‘necessarily
foreclose the possibility of
dilution of the black vote', in
violation of this section. Zimmer
485 F.2d at 1307. If it did, the
possibility exists that the
majority citizens might evade the
section e.g., by manipulating the
election of a ‘safe’ minority
candidate. ‘Were we to hold that a
minority 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...Instead we shall
continue to require an independent
consideration of the record.'
Ibid.

Id., at 29 n.115°

"The Solicitor General attempts to
discount the Senate Report on this point
by arguing that the report “cannot be
taken as determinative on all counts."
Brief for the United States as Amicus
Curiae, p. 24 n.49. Of course, this
Court has "repeatedly stated that the
authoritative source for finding the
legislature's intent lies in the
Committee reports on the bill." Zuber
v. Allen, 396 U.S. 168, 186 (1969).
Accord, Garcia v. United States,

[Footnote continued]

@2le

In Zimmer, relied upon in the
Senate Report, three black candidates
won at-large elections in East Carroil
Parish after the case was tried. The
county argued, as the State and
Solicitor General do here, that these
successes “dictated a finding that the
at-large scheme did not in fact dilute
the black vote." 485 F.2d at 1307. The
Fifth Circuit disagreed:

we cannot endorse the view that the

success of black candidates at the

polls necessarily forecloses the
possibility of dilution of the

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

U.S. , 105 S. Ct. 479, 483
(1984). In any case, there is simply
nothing in the legislative history to
indicate that there was any disagreement
with the proposition that "the election
of a few minority candidates does not
‘necessarily foreclose the possibility
of dilution of the black vote’, in
violation of this Section." Senate Rep.
at 29, n. 115.

=22-

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

black candidate would be
politically expedient, campaign tc
insure his’ election. Or such

success might be attributable to
political support motivated by
different considerations - namely
that election of a black candidate
will thwart successful challenges
to electoral schemes on dilution
grounds. In either situation, a
candidate could be elected despite
the relative political backwardness
of black residents in the electoral
district.

Id.

Similarly, in White v. Regester,

the case principally relied upon by
Congress as embodying the "results"
standard it incorporated into Section 2,
and whose language Congress expressly
adopted, two blacks and five Mexican-
Americans had been elected to the Texas
Legislature from Dallas and Bexar
Counties. 4i2 U.S. at 766, 768-69.
Despite that level of minority candidate

success, which is greater than that in

=-23-

some of the districts claimed by the
State and the Solicitor General to be
immune from a Section 2 challenge here,
e.g. House Districts 8 and 36, and
Senate Districts 2 and 22, this Court in
a unanimous decision held at-large
elections impermissibly diluted minority
voting strength in those counties.

In addition to White and Zimmer,
the Congress, in amending Section 2,
relied upon some 23 courts of appeals
decisions which had applied a results or

effect test prior to City of Mobile.

Senate Rep. at 32, 194; 128 Cong. Rec.
$6930 (daily ed. June 17, 1982) (remarks

of Sen. DeConcini):© One of those 23

©The 23 cases are listed and discussed
in l Senate Hearings at 1216-26
(appendix to prepared statement of Frank
R. Parker, Director, Voting Rights
Project, Lawyers’ Committee for Civil
Rights Under Law).

-24-

sases, Kirksey v- Board of Supervisors.
554 F.2d 139, 149 n.21 (5th Cir. 1977),
commented upon the continuing validity
of the Zimmer rule that the election of
a minimal number of blacks did not
foreclose a dilution claim: “we add the
caveat that the election of black
candidates does not automatically mean
that black voting strength is not

minimized or cancelled out.” Accord,

Cross v. Baxter, 604 F.2d 875, 880 n./7,

885 (5th Cir. 1979).

Cases decided since the amendment
of Section 2 have predictably applied
the statute in light of the legislative
history and rejected the contention that
Minimal or token black success at the
polis forecloses a dilution claim. See,

United States V. Marengo County

eae ee ee

Commission, 731 F.2d 1546, 1571-72 (llth

Cir. 1984) ("it is equally clear that

-25-

the election of one or a small number of
minority elected officials will not
compel a finding of no dilution"), cert.
denied, _—sU«w Ss 105: S. Ch. 375

(1984); Velasquez v. City of Abilene,

725 F.2d 1017, 1023 (5th Cir. 1984) ("In
the Senate Report...it was specifically
noted that the mere election of a few
minority candidates was not sufficient
to bar a finding of voting dilution

under the results test."); Major vy.

Treen, 574 F. Supp. 325, 339 (E.D. La.

1983); Rybicki v. State Board of

Elections, 574 F. Supp. 1147, 1151 and

n.5 (E.D. Ill. (1983).

The necessity of considering
factors other than the election of
minorities to office is particularly
apparent in House District 21 (Wake
County) and House District 23 (Durham

County), districts in which blacks,

=26-

according to the Solicitor General, have
enjoyed “proportional representation."
Brief for the United States as Amicus
Curiae Supporting Appellants, p.25.
While one black has been elected to the
three member delegation from House
District 23 since 1973, and a black has
been elected in 1980 and 1982 to the six
member delegation from House District
21, the district court found this
success was the result of single shot
voting by blacks, a process which

requires minorities tc give up the right

to vote for a full slate of
candidates. According to the lower
court, "“Lo]ne revealed consequence of

this disadvantage [of a_i significant
segment of the white voters not voting
for any black candidate] is that to have
a chance of success in electing

candidates of their choice in these

@27<

districts, black voters must rely
extensively on single-shot voting,
thereby forfeiting by practical
necessity their right *o vote for a full

slate of candidates." Gingles, 590 F.

Supp. at 369. Under the circumstances,
the election of blacks in these
districts can not mask the fact that the
multi-member sy.tem treats minorities
unfairly and dilutes their voting
strength.

Black voters in House District 23
must forfeit up to two-thirds of their
voting strength and black vc-ers in
House District 21 must forfei* up to
five-sixths of their voting strength to
elect a candidate of their choice to
office. Whites, by contrast, can vote
for a full slate of candidates without
forfeiting any of their voting strength

and elect candidates of their choice to

-28-

office. Such a system clearly does not
provide black voters equal access nor
the equal opportunity to participate in
the political process and elect
candidates of their choice to office.
That is another reason why the mere
election of even a proportional number
of blacks to office does not, and should
not, foreclose a dilution challenge. As
Section 2 and the legislative history

provide, a court must view the totality

—-_--- -——

of relevant circumstances to determine
whether the voting strength of
minorities is in fact minimized or
abridged in violation of the statute.

To summarize, the position of the
State and the Solicitor General that the
election of a token or any other number
of blacks to office bars a dilution
challenge must be rejected because it is

contrary to the express language of

-29-

Section 2, the legislative history and
the pre-Mobile line of cases whose
standards Congress incorporated into the

“results” test.

B. Congressional Policy Favors
Strong Enforcement of Civil
Rights Laws

Congress enacted the Voting Rights
Act of 1965 as an “uncommon exercise of
congressional power” designed to combat
the “unremitting and ingenious defiance
of the Constitution” by some
jurisdictions in denying minority voting

rights. South Carolina v. Katzenbach,

383 U.S. 301, 309, 334 (1966). Based
upon the continuing need for voting
rights protection, Congress extended and

expanded the coverage of the Act three

times - in 1970, 1975 and 1982.’ It
would be illogical to suppose, that in
amending Section 2, Congress’ suddenly
retreated from its general commitment to
racial equality in voting and adopted a
statute providing only tokenism and
Minimal political participation. That
is certainly not what the Congress
thought it was doing. As the Senate

Report provides, the purpose of the 1982

TVoting Rights Act Amendments of 1970,
84 Stat. 314 (extending Section 5
coverage and the other special
provisions of the Act for five more
years; adding jurisdictions for special
coverage; establishing a five year
nationwide ban on literacy tests); Act
of August 6, 1975, 89 Stat. 402
(extending Section 5 and the other
special provisions for seven additional
years; making permanent the nationwide
ban on literacy tests; extending Section
5 to language minorities and requiring
bilingual registration and elections in
certain jurisdictions); Voting Rights
Act Amendments of 1982, 96 Stat. 131
(extending Section 5 for twenty-five
years and amending Section 2).

@3l<

1e@gislation was to “extend the essential
protections of the historic Voting
Rights Act...Land] insure that the hard-
won progress of the past is preserved
and that the effort to achieve full
participation for all Americans in our
democracy will continue in the
future." Senate Rep. at 4.

Modern congressional civil rights
enforcement policy in other areas has
Similarly not been one of minimalism.
Congress, for example, clearly intended
to protect more than token access to
public accommodations when it enacted
Title II of the Civil Rights Act of

1964, 42 U.S.C. § 2000a et. seq.. See,

H.R. Rep. No. 914, 88th Cong., 2d Sess.

(1963), reprinted in [1964] 2 U.S. Code

Cong. & Ad. News 2393 ("It
is...necessary for the Congress to enact

legislation which prohibits and provides

@32-

the means to terminating the most
serious types of discrimination." )
Congress also sought to protect more
than token access to employment
opportunities and jury service when it
enacted Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et. seg.,
and the Federal Jury Selection and
Service Act of 1968, 28 U.S.C. § 1861
et. seg. H.R. Rep. No. 914, supra, U.S.
Code Cong. & Ad. News at 2401] ("the
purpose of this title is to
eliminate...discrimination in employment
based on race, color, religion, or
national origin."); H.R. Rep. No. 1076,

90th Cong., 2d Sess. (1968), reprinted

in [1968] 2 U.S. Code Cong. & Ad. News
1793 (a major purpose of the Federal
Jury Act is to establish "an effective
bulwark against impermissib)e forms of

discrimination and arbitrariness in jury

-~33-

selection.")

Section 2 does not guarantee
proportional representation any more
than Title II guarantees proportional
occupancy of places of public
accommodation, or Title VII guarantees
proportionality in hiring, or the
Federal Jury Act guarantees juries that
proportionately represent minorities.

See, e.g., United States v. Jenkins, 496

F.2d 57, 65 (2d Cir. 1974) ("The Act was
not intended to require precise
proportional representation of minority
groups on grand or petit jury
panels.") But certainly Title II could
not be rationally construed to bar a
challenge to an otherwise discriminatory
public accommodations policy merely
because any given number of rooms were
let to blacks, nor could Title VII be

construed to bar an otherwise valid

-34-

employment discrimination claim merely
because a token number of minorities had
been hired, nor could the Federal Jury
Act be deemed to bar a challenge to a
discriminatory jury selection system
merely because a few blacks were allowed
into the jury pool. Such a reading of
congressional civil rights laws would be
illogical and totally contrary to the
intent of Congress in legislating
against discrimination. Yet, that is
the untenable position of the State and
the Solicitor General] in this case.

If the State and the Solicitor
General prevail in their argument, it
will be impossible to eradicate
discriminatory election procedures in
places where minority candidates have
had some success. In addition, those
jurisdictions in which black candidates

have had no success will be encouraged,

o3$<

as Congress found, to manipulate the
election of a “safe” or token minority
candidate to give the appearance of
racial fairness and thwart successful
dilution challenges to discriminatory
election schemes. As a result, there
will be no incentive for voluntary
compliance with Section 2, and every
inducement for circumvention and
continued litigation. Future progress
in minority voting rights will be dealt

a severe setback.

Il. THE DISTRICT COURT PROPERLY FOUND
RACIAL BLOC VOTING.

A. The Court Applied Correct
~ Standards

The State and the Solicitor General

argue that the district court applied a

=36-

legally incorrect definition of bloc
voting which vitiates its conclusions
that the challenged districts dilute
minority voting strength.® According to
the State, the lower court applied the
test that “polarized voting occurs
whenever less than 50% of the white
voters cast a ballot for the black
candidate.” Appellants’ Brief, p. 36.
According to the Solicitor General, the
court adopted a definition that
polarized voting occurs “whenever ‘the
results of the individual election would
have been different depending upon
whether it had been held among only the

white voters or the black voters in the

Sthe State concedes that Appellees’
calculations were basically accurate,
and that the methods of analysis used
“were standard in the literature.” 590
F. Supp. at 368.

@37<-

election.'” Brief for the United States
as Amicus Curiae, p. 29.

While it is true, as the trial
court noted, that in none of the
electi~ns did a black candidate receive
a majority of white votes cast, 590 F.
Supp. at 368, and that in all but two of
the elections the rcsults would have
been different depending upon whether
they had been held among only the white
or only the black voters, id., the court
did not base its finding of bloc voting
merely upon these facts. The district
court examined e.tensive statistical
evidence of 53 se’ of election returns
involving black ididacies in all the
challenged districts, heard expert and
lay testimony and concluded that:

On the average, 81.7% of white

voters did not vote for any black

candidate in the primary
elections. In the general

elections, white voters almost
always ranked black candidates

-38-

either last or next to last in the

multi-candidate field except in
heavily Democratic areas; in these
latter, white voters consistently

rankea black candidates last among
Democrats if not last or next to
last among all candidates. In
fact, approximately two-thirds of
white voters did not vote for black
candidates in general elections
even after the candidate had won
the Democratic primary and the only
choice was to vote for a Republican
or no one. Black incumbency
alleviated the general level of
polarization revealed, but it did
not eliminate it. Some black
incumbents were reelected, ‘ut none
received a majority of white votes

even when the election was
essentially uncontested.
Id.
The court also found that the
polarization was statistically

significant in every election in that
the probability of it occurring by
chance was less than one in 100,000.

Ia.? Taking the opinion as a whole, it

-_—_

°rhe court determined "statistical
significance” by examining the
[Footnote continued]

-39-

is clear that the district court did not
adopt or apply a narrow, simplistic or
legally incorrect definition of
polarized voting. ?°

The State also contends that racial
bloc voting in the challenged districts
is irrelevant where a black won an

election. Appellants’ Brief, pp. 39-

40: “Racially polarized voting is

correlations between the race of voters
and candidates prepared by Appellees’
expert. While “correlations above an
absolute value of .5 are relatively rare
and correlations above .9 extremely
rare...[aJll correlations found by Dr.
Grofman in the elections studied had
absolute values between .7 and .98, with
most above -9. This revealed
statistical significance at the .00001
level - probability of chance as
explanation for the coincidence of
voter's and candidate's race less than
one in 100,000." 590 F. Supp. at 268
n.30.

10noth the State and the Solicitor
General have opinions about when bloc
voting is relevant, but neither, it
should be noted, attempted to define
racial bloc voting.

Significant...when the black candidate
does not receive enough white support to
win the election...The mere presence of
different voting patterns in the white
and black electorate does not prove
anything one way or the other about vote

dilution.’ Given this analysis, 100%
voting along racial lines would be
irrelevant in a challenge to multi-
member district elections if blacks were
able to single-shot a black into
off ce. Congress indicated in the
statute and the legislative history,
however, that the totality of relevant
Sircumstances should be considered. One
of the relevant circumstances,

regardless of other factors that may be

present, is bloc voting.

-4l]-

B. The Court's Methodolgy
Was Acceptable

In finding racial bloc voting, the
court below relied upon two methods of
statistical analysis employed by
Appellees’ expert: extreme case analysis
and bivariate ecological regression
analysis.!+ Both methods are “standard
in the literature,” as the lower court
found, 590 F. Supp. at 367 n.29, and
both have been extensively used by the
courts in voting cases in establishing

the presence or absence of racial bloc

llextreme case analysis compares the
race of voters and candidates in
racially homogeneous precincts.
Regression analysis uses data from all
precincts and corrects for the fact that
voters in homogeneous and non-
homogeneous precincts may vote
differently. 590 F. Supp. at 367 n.29.

-42-

voting. +?

In Lodge v. Buxton, Civ. No. i76-55

(S.D. Ga. Oct. 26, 1978), slip op. at 7-
8, the trial court found racial bloc
voting in Burke County, Georgia, based
upon simple extreme cas) analysis in two
elections in which blacks were
candidates, a third election in which a

white sympathetic to black political

l2Not all cases finding vote dilution,
however, have made findings of bloc
voting. Neither White v. Regester,
Supra, nor Zimmer v. McKeithen, supra,
the cases principally relied upon by
Congress in establishing the results
standard of Section 2, made specific
findings that voting was racially
polarized. The legislative history of
Section 2 makes bloc voting a relevant
factor but does not indicate that it is
a requirement for a violation. See,
e.g-, United States v. Marengo County
Commission, 731 F.2d 1546, 1566 (llth
Cir. 1984), citing the Senate Report and
concluding that “[wle therefore do not
hold that a dilution claim cannot be
made out in the absence of racially
polarized voting.”

-43-

interests was a candidate and a fourth
election in which a black had won a city
council seat in a district with a high
percentage of black voters. The court's
analysis and discussion of bloc voting
is set out in Appendix A to this
brief. This Court affirmed the finding
of bloc voting in Burke County and the
conclusion that the at-large elections

were unconstitutional. Rogers v. Lodge,

458 U.S. 613, 623 (1982) ("there was
also overwhelming evidence of bloc
voting along racial lines”).

For other cases approving the use
of extreme case or regression analysis
to prove bloc voting, see City of

Petersburg Vv. United States, 354 F.

Supp. 1021, 1026 n.10 (D.D.C. 1972),

aff'd, 410 U.S. 962 (1973); Bolden v.

City of Mobile, 423 F. Supp. 384, 388-89

(S.D. Ala. 1976) ("Regression analysis

is a professionally accepted method of
analyzing data."), aff'd, 571 F.2d 238

(Sth Cir. 1978), rev'd on other grounds,

446 U.S. 55 (1980); Nevett v. Sides, 571

F.2d 209, 223 n.18 (5th Cir. 1978)
(“bloc voting may be demonstrated by
more direct means as well, such as

statistical analyses, e.g. Bolden vy.

City of Mobile”); NAACP v. Gadsden

County School Board, 691 F.2d 978, 982-3

(llth Cir. 1982) (finding “compelling”
evidence of racial bloc voting based

upon bivariate analysis); United States

v. Marengo County Commission, 731 F.2d

1546, 1567 n.34 (llth Cir. 1984);

McMillan v. Escambia County, 748 F.2d

1037, 1043 n.12 (5th Cir. 1984)
(confirming the use of regression
analysis comparing race of voters and
candidates to prove bloc voting); Jones

v. City of Lubbock, 727 F.2d 364, 380-81

a45-

(5th Cir. 1984) (approving the use of
bivariate regression analysis).

The State contends, however, that
bivariate regression analysis is
“severely flawed" and that the presence
of racial bloc voting can only be
estalished by use of a multivariate
analysis that tests or regresses for
factors other than race, such as age,
religion, income, education, party
affiliation, campaign expenditures, or
“any other factor that could have

influenced the election." Appellants’

Brief, pp. 41-2.43 The State relies

l3qme Solicitor General does not support
the Appellants on this point, but agrees
with the Appellees that "“[LiJn most vote
dilution cases, a plaintiff can
establish a prima facie case of racial
bloc voting by using a_e statistical
analysis of voting patterns that
compares the race of a candidate with
the race of the voters." Brief for the
United States as Amicus Curiae, p. 30
n.57.

-46-

principally upon the concurring opinion

of Judge Higginbotham in Jones v. City

of Lubbock, 730 F.2d 233, 234 (5th Cir.

1984), denying rehearing to 727 F.2d 364

(Sth Cir. 1984), in which he says in
dicta that proof of a high correlation
between race of voters and candidates
may not prove bloc voting in every case
and that it “will often be essential" to
eliminate all other variables that might
explain voting behavior.

Not only has this Court expressly

approved findings of bloc voting based

upon extreme case and regression
analysis, but it has rejected the
contention that multivariate
regressional analysis is required. In

Jordan v. Winter, Civ. No. GC-80-WK-O

(N.D. Miss. April 16, 1984), slip op. at

ll, the three judge court invalidated

-47-

under Section 2 the’ structure of
Mississippi's second congressional
district in part upon a finding of a
“high degree of racially polarized
voting" based upon a bivariate
regression analysis comparing the race
of candidates and voters in the 1982
elections. The State appealed, Allain

v. Brooks, No. 83-2053, and challenged

the finding of bloc voting, citing Judge
Higginbotham’s concurring opinion in

Lubbock (id., Jurisdictional Statement

at 12-3).+4

l4see also, Justice Stevens concurring

opinion in Mississippi Republican
Executive Committee v. Brooks,
U.S. , 105 S. Ct. 416 n.1 (1985),

noting that the Jurisdictional Statement
in No. 83-2053 “presents the question
whether the District Court erroneously
found...that there has been racially
polarized voting in Mississippi."

-48-

The use of a regression analysis
whicn correlates only racial make-
up of the precinct with race of the
candidate ‘ignores the reality that
race...May mask a host of other
explanatory variables.‘ [730 F.2d]
at 235.

This Court summarily affirmed, sub nom.

Mississippi Republican Executive

Committee v. Brooks, SF F# , 105

S.Ct. 416 (1984), thereby rejecting the
specific challenge to the sufficiency of
bivariate regression analysis to prove
racial bloc voting contained in the

jurisdictional statement. Mandel v.

Bradley, 432 U.S. 173, 176 (1977).

It should be reemphasized that
Judge Higginbotham ruled for the
plaintiffs in Lubbock and concurred in
the judgment affirming the dilution
finding by the district court. He

concluded that the defendants, other

-49-

than criticizing the plaintiffs’
methodology, failed to offer any
statistical evidence of their own in
rebuttal, and that accordingly
plaintiffs must be deemed to have
established bloc voting:
given that there is no evidence to
rebut plaintiffs’ proof other than
the city's criticism of Dr.
Brischetto's study and its attempt
to show responsiveness, I agree
with Judge Randall that the record
is not so barren as to render
clearly erroneous the finding by
the district court that bloc voting

was established.
730 F.2d at 236.

Thus, the most that can be argued from
Judge Higginbotham's concurrence is that
where plaintiffs prove bloc voting by
correlation analysis, the proof must
stand unless defendants rebut
plaintiffs’ evidence with statistics of
their own. The State made no _ such

rebuttal here.

-50-

In United States v. Dallas County

—-— --~-—- -----

Commission, 739 F.2d 1529 (llth Cir.

1984), the district court found evidence
of bloc voting based upon the
correlation of race of candidates with

voting, 739 F.2d at 1535 n.4, but

racial factors, e.g. voter apathy, the
advantage of incumbency, blacks ran as
“fringe party” candidates, etc. 739
F.2d at 1536. The court of appeals

rejected these non-racial explanations

for the defeat of black candidate

“”

because of lack of support in the
record. Id. The case thus approves the
proposition that it is sufficient to
establish racial bloc voting by
bivariate analysis, and if such a
finding is to be discounted, there must

be contradicting evidence in the

record. The State produced no

-5l-

contradicting evidence in this case and
as a result its argument that bloc
voting was not proved should _ be

unavailing.

C. The Court Should Not Adopt a
Rigid Definition or Method of
Proof of Bloc Voting

Aside from requiring polarization
to be significant, this Court should not
adopt any additional definition of
racial bloc voting. Section 2 analysis
requires a court to evaluate the
particular, unique facts of individual
cases. Imposing any rigid definition of
bloc voting in advance would thus be
inconsistent with the totality of
circumstances and individual appraisal

approach to dilution claims which

=$2e

Congress has adopted. It might also
lead to findings of bloc voting or no
bloc voting in individual cases which,
in view of the totality of factors,
would be simply arbitrary.

This Court has avoided a single
formula approach to proof of
polarization or discrimination in other
areas of civil rights law. In jury
iiscrimination cases, for example, *his
Court and lower federal courts have used
a number of tests for establishing a
prima facie showing of minority
exclusion but have never indicated that
one method of statistical analysis is
required in every instance.

In Swain v. Alabama, 380 U.S. 202

(1965), the Court indicated that a
disparity as great as 10% between blacks
in the population and blacks summoned

for jury duty would not prove a prima

o$3<

facie case of unconstitutional
underrepresentation. Swain was
generally applied to mean that
disparities in excess of 10% would be

unconstitutional. Foster v. Sparks, 506

F.2d 805, 811-37 (5th Cir. 1975)
(Appendix to the Opinion of Judge
Gewin). The so-called “absolute
deficiency” method of analysis used in
Swain does not give a true picture of
underrepresentation, however, when the
minority group is small. For example,
if the excluded group were 20% of the
population and 10% of those summoned for
jury duty, the absolute deficiency would
only be 10%, whereas in fact the group
would be underrepresented by one-half.
To meet the limitations of the
absolute deficiency standard, this Court
and lower federal courts have also used

a comparative deficiency’ test for

-54-

measuring underrepresentation, by which
the absolute disparity is divided by the
proportion of the population comprising

the specified category. Alexander v.

Louisiana, 405 U.S. 625, 629-30 (1972)

(using both the absolute and comparative

deficiency methods); Berry v. Cooper,

5977 F.2d 322, 326 n.1ll (5th Cir. 1978);

Stephens v. Cox, 449 F.2d 657 (4th Cir.

1971). Those courts using the
comparative deficiency Standard have
not, however, adopted any particular cut
off for racial exclusion.

This Court has also referred to,
without requiring that it be used, a
third method of calculating
underrepresentation in jury selection,
the statistical Significance test.

Castaneda v. Partida, 430 U.S. 482, 496

n.17 (1977); Alexander v. Louisiana,

supra, 405 U.S. at 630 n.9, 632. The

-55-

test measures representativeness by
calculating the probability of a
disparity occurring by chance in a
random drawing from the population. The
district court in this case used this
method of analysis in part to support
its finding of bloc voting.

It is apparent from examining the
cases that this Court has not required a
single mathematical formula or standard
for measuring underrepresentation in all
jury selection cases and has, in fact,

expressly declined to do so. Alexander

v. Louisiana, supra, 405 U.S. at 630. A

similar approach to proof of bloc voting
in vote dilution cases would therefore
be consistent with this Court's
treatment of related discrimination
issues in other cases.

It is significant that none of the

tests for jury exclusion used by this

Court has required challengers to

disprove non-racial factors as the
explanation for minority
underrepresentation. Instead, once a

prima facie case has been made using
some form of bivariate analysis, the
courts have held that the burden of
proving selection procedures are
racially neutral shifts to election

officials. Alexander v. Louisiana,

Supra, 405 U.S. at 632; Casteneda v.

-_---—-

Partida, Supra, 430 U.S. at 497-98. In
the context of vote dilution litigation,
defendants might attempt to disprove
bloc voting by any method of analysis
they chose, including multivariate
regression analysis, but that should be
no part of plaintiffs’ case.

It would be plainly inconsistent
with the intent of Congress to require

plaintifts to conduct multivariate

-$7-<

analysis in Section 2 cases. In
amending Section 2 Congress adopted the
pre-Mobile dilution standards, and
bivariate correlation analysis was an
accepted method of proving bloc
voting. Therefore, this method of proof
should be satisfactory under Section 2.

Reguiring plaintiffs to conduct
multivariate regression analysis would
also shift a court's inquiry from the
result or fact of voting along racial
lines to the intent of voters, an
inquiry which Congress intended to
pretermit in amending Section 2.
Congress adopted the results standard
for three basic reasons. First, the
Bolden intent test “asks the wrong
question.” Senate Rep. No. 97-417 at
36. If minorities are denied a fair
opportunity to participate in politics,
existing procedures should be changed

regardless of the reasons the procedures
were established or are being

maintained. Second, the intent test is

“unnecessarily divisive” because it
requires plaintiffs to prove the
existence of racism. Id. Third, “the

intent test will be an inordinately
difficult burden for plaintiffs in most
cases." Id.

It would be tantamount to the
repeal of the 1982 law to say that proof
of intent is not required in Section 2
cases, and at the same time make
plaintiffs prove that voters were voting
purposefully for reasons of race to
establish a violation. Such an
evidentiary burden would again ask the

“wrong question,” would be unnecessarily
divisive and would place inordinately
difficult burdens on minority

plaintiffs. It would essentially

-59-

nullify the intent of Congress. in
enacting the statute.

There are a number of very
practical considerations, not discussed
by the State at all, which further
demonstrate the inherent unfairness, and
in some cases the impossibility, of
requiring minority plaintiffs to conduct
multivariate regression analysis.

(1) Impossibility. In some cases

it will simply be impossible to do any
kind of regression analysis, or even an
extreme case analysis, i.e., where there
is only one or no homogenious
precincts. Reguiring a multivariate
regression analysis in a city with only
one polling place, such as Moultrie,

Georgia, see Cross v. Baxter, 604 F.2d

875, 880 n.8 (5th Cir. 1979), would
absolutely foreclose a dilution

challenge, even through minorities were

-60-

totally shut out of the _ political
process and polarization was
complete.+° Such a result would be
absurd and contrary to the intent of
Congress in amending Section 2.

In still other cases, regression or
even extreme case analysis will be
impossible to perform because election
records no longer exist or cannot be
broken down into precincts. Such was
the situation in Rome, Georgia, where
the trial court nonetheless found bloc
voting and denied Section 5 preclearance

to a number of municipal voting

15th Cross, the court of appeals held
simply that a finding by the trial court
of no bloc voting "on this record” would
be clearly erroneous where "“[nJjo black
candidate has ever received even a
plurality of white votes and Wilson, the
first black elected to the council
appears to have received as little as 5%
of white votes.” Id.

-6l-

changes. City of Rome, Georgia v.

United States, 472 F. Supp. 221, 226

n.36 (D.C. 19739). This Court affirmed,
concluding that the district court did
not err in determining “that racial bloc

voting existed in Rome." City of Rome

v. United States, 446 U.S. 156, 183

(1980).

(2) Quantification. The State

ignores the enormous burden, and in some
instances the impossibility, of
quantifying, i.e. expressing in numbers,
all the non-racial factors potentially
influencing voters. It would be
difficult indeed to quantify candidate
expenditures or name recognition, or as
the State suggests, “any other factor
that could have influenced the
election,” by precinct. Appellants’
Brief, pp. 41-2. Perhaps these factors

could be quantified through extensive

-62-

Surveys; perhaps not. But in any case,
the attempt to quantify them would be
enormously difficult, time consuming and

xpensive and in most cases the burden
on minority plaintiffs would be
prohibitive.

The State's suggestion that
plaintiffs quantify and regress “any
other factor” that might have influenced
the elections would send plaintiffs ona
wild goose chase. Even if it were
possible, both financially and
literally, for plaintiffs to provide a
multivariate analysis, defendants would
claim - as the State has here - that
allegedly relevant factors were omitted
and that the analysis thus must fail.
The State's argument is little more than
a prescription for maintenance of

discriminatory election practices.

(3) Unavailable Precinct Level

-63-

Data. The State fails to note that

correlation analysis is almost always
based upon precinct level data. While
racial data is usually availabie,
precinct level data for income,
education, etc., generally does not
exist. The Census contains some of this
information by enumeration districts, or
in some states by block data, but not by
precincts. The cost and time involved
in extractng non-racial variables from
the Census at the precinct level, to the
extent that they are available at all,
would be overwhelming if not
prohibitive.

The State's contention that
Appellees must conduct a multivariate
analysis is contrary to Section 2, the
legislative history and the prior
decisions of this Court. The finding of

bloc voting and the methodology of the

-64-

lower court in this case were entirely

correct.

CONCLUSION

Amici Curiae respectfully urge the
Court to affirm the judgment below on
the grounds that the trial court
properly applied amended Section 2 to
find that North Carolina's 1982
legislative apportionment impermissibly

dilutes minority voting strength.

Respectfully submitted,

Laughlin McDonald” Cynthia D. Hill

Neil Bradley League of Women

American Civil Voters Education
Liberties Union Fund

Foundation, Inc. 1730 M. St., N.W.
52 Fairlie St.,N.W. Washington, D.C.
Atlanta, GA 30303 20036

(404) 523-2721 (202) 429-1965

Of Counsel:

Maureen T. Thornton

League of Women Voters, Education Fund
Attorneys For Amici Curiae

Counsel of record

-65$<

APPENDIX A
Trial Court's Analysis of Bloc Voting |

in Lodge v. Buaton, Civ. No. 176-55

(S.D. Ga. Oct. 26, 1978), slip. Op. at
7-9

There was a clear evidence of bloc
voting the only time Blacks ran for
County Commissioner. Obviously, this
must be ascribed in part to past
discrimination. There are three Militia
Districts in which Blacks are in a clear

majority, the 66th, 724 and 74th.’ Ina

the Court finds the following to be a
reasonably accurate estimate of the
registered voters by race in each
district, as of 1978.

Precinct Black White Total
Waynesboro

60-62 District 1,050 2,149 3,199
Munner lyn

6ls6t District 44 50 94

[Pootnote continued)
Ae

fourth district, the 69th, as of 1978,
there were only a few more Blacks than

Whites. One black candidate, Mr.

Alexander

63rd District 75 104 179
Sardis
64th District 2Zii 4/78 689

Keysville
65th District L163 214 77

7T

Shell Bluff
66th District L167 82 249

Greensci tt

67th District 49 215 264
sirarad
ootn ViSstr®r i . ii 75 ; >

St. Clair

ist List [ ‘ 164
; an
; i LStr i . ele sh,
Midagvilile
ira Vistrict 4 ; ;/9
5 cts >t re
4t ; | etri . Le j

Childers, won in the four black
districts, losing in all of the
others. The other black candidate, Mr.
Reynolds, won in three of the black
districts losing in all of the others.®

Similarly, in 1970 Dr. John Palmer,
a white physician from Waynesboro, who
open the first integrated waiting room
in Burke County, ran for County
Commission. Generally, he was thought
of as being sympathetic to black
political interests. He was soundly
defeated.

In the recent city council election
in Waynesboro, the county seat, a Black

was elected to the council for the first

time in history. This event can be

Spiaintiffts’ Request for Admissions,
filed June 5, 1970, Exhibits I-3 and I-
4.

A-3

4

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0785%3A19. Public record. Not legal advice.