Amicus Curiae Brief — Jackson v. Perry (Nos. 05-276, 05-204, 05-254, 05-439)

4

legislative power exercised in defense of its own interests, but

they also threaten to trample principles of minority political

fairness elevated by the entire nation in the commands of the

14" and 15° Amendments, and embraced in bipartisan

Congressional votes of support for the Voting Rights Act on

five occasions. Through these votes, political partisans have

themselves recognized that our Constitution and history

demand that some rules enjoy a place of primacy in the political

process.

Indeed this case raises the specter of an even greater, if less

obvious, danger for minority voting rights: If this Court refrains

from announcing any limitation on partisan gerrymanders

regardless of their severity, and also permits partisan

explanations to trump racially disparate voting behavior so as

to insulate legislative enactments from judicial scrutiny, the

Voting Rights Act, and the minority political fairness principles

for which it stands, would become largely meaningless.

Accordingly, LDF submits this brief as amicus curiae to

address two important issues of interpretation of the Voting

Rights Act of 1965, as amended, and construed in the seminal

Section 2 case of Thornburg v. Gingles, 478 U.S. 30 (1986).

These issues, involving (a) the minority numerosity

requirement (Gingles’ first precondition), and (b) the legal

significance of partisan alignments along racial lines in

negating the significance of racially polarized voting (Gingles’

third precondition), were the second of the Questions Presented

in the jurisdictional statements in Nos. 05-296 and 05-204,

respectively.

First, LDF urges this Court to recognize that it is consistent

with the language, purposes and evolution of its own doctrine

under the Voting Rights Act for minority voters to assert legally

cognizable interests in opportunities to elect candidates of their

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choice even in districts where those minorities are not

sufficiently concentrated to comprise a numerical majority.

However, in order for this principle to be both consistent with

the statutory purposes of Section 2, and to serve the screening

function for which the Gingles prerequisites were intended, it

must be properly limited to recognize only reliable coal‘tion

districts that provide a discernible opportunity for the coalition

to elect and not improvidently extended in the Section 2

context to encompass necessarily amorphous influence

districts. If this Court agrees with our suggestion and modifies

the first Gingles prerequisite, the judgment below should be

vacated with instructions to reconsider the affected claims and

issues in light of the new standard.

Second, if this Court reaches the issue of the interplay

between partisan and racially polarized voting patterns under

the Gingles preconditions, it should find that considerations of

partisan polarization may not rebut, and thereby place beyond

judicial reach, a prima facie showing under the Gingles

preconditions but may be considered only under the totality of

the circumstances.

These legal questions are of considerable moment. More

than forty years after passage of the transformative Voting

Rights Act, the Court is presented in these appeals with an

opportunity to revisit its seminal Section 2 decision, as well

as to reconcile partisan redistricting issues, recently considered

in Vieth v. Jubelirer, 541 U S. 267 (2004), that are bound up in,

but not fully coextensive with, the minority political fairness

principles to which Congress has consistently committed our

nation. That these issues are now intertwined is no reason to

abandon Constitutional and Congressional mandates. Indeed,

the political and minority voter protection issues have always

been intertwined.

ARGUMENT

Districts In Which Voters Of A Particular

Minority Group Do Not Constitute 50% Of

The Relevant Population, But Who Are Able

To Elect Candidates Of Their Choice In

Combination With Other Minority Voters,

Or With Reliable Crossover Votes From The

Population Majority, Meet The First Gingles

Precondition For A Viable Section 2 Claim

Jackson Appellants (plaintiffs below) urge the Court to

extend the protections of Section 2 of the Voting Rights Act to

districts in which a substantially large group of minority voters

— while short of comprising a mathematical majority of the

population — is nonetheless capable of nominating and

electing its candidate of choice. Before the District Court,

other plaintiffs requested recognition of a § 2 claim not only for

so-called “coalition” or “crossover districts,” but also for

“influence districts,” where minority voters, while unable to

elect their candidates of choice, exercise varying levels of

influence in the electoral process.’ Session v. Perry, 298 F.

?There has been some confusion among commentators

litigants, and courts — including the District Court below, see,

e.g., Session, 298 F. Supp. 2d at 482-83 (identifying various

proffered examples of influence and coalition districts) — over

what constitutes an “influence,” “coalition,” or “crossover”

district. For purposes of this brief, we consider an “influence

district” one “where minority voters may not be able to elect a

candidate of choice but can play a substantial, if not decisive, role

in the electoral process.” Ga. v. Ashcroft, 539 U.S. 461, 482

(2003). A “coalitional” or “crossover district” is one in which (as

the Court has described it), minority voters in a district — despite

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Supp. 2d 451, 482-83 (E.D. Tex. 2004).?

The District Court, following the Fifth Circuit’s strict “fifty

percent rule,” rejected these arguments. /d at 482-83 &

nn.111, 112 (citing Perez v. Pasadena Independent Sch. Dist.,

165 F.3d 368 (Sth Cir. 1999), cert. denied, 528 U.S. 1114

(2000); Valdespino v. Alamo Heights Ind. Sch. Dist., 168 F.3d

848 (Sth Cir. 1999), cert. denied, 528 U.S. 1114 (2000)). In so

doing, it declined the opportunity to decide whether any set of

circumstances might exist in which a group of minority voters

less than an absolute majority of the relevant population could

ever satisfy the first Gingles precondition. /d. at 476:

This Court has yet to rule on the question. See, e.g.,

Johnson v. DeGrandy, 478 U.S. at 1008-09; Voinovich v.

Quilter, 507 U.S. 146, 154 (1993); Growe v. Emison, 507 U.S.

25, 41 (1993); Gingles, 478 U.S. at 47.n.12; see also Metts v.

Murphy, 363 F.3d 8, 11 (ist Cir. 2004) (en banc) (“[S]everal

Supreme Court opinions after Gingles have offered the

prospect, or at least clearly reserved the possibility, that

Gingles’ first precondition — that a racial minority must be

their not constituting a majority of the population — can form a

coalition with another minority group sufficient to elect their

candidate of choice, Johnson v. DeGrandy, 512 U.S. 997, 1020

(1994), or can demonstrate an ability to elect their candidate of

choice “when joined by predictably supportive nonminority

voters.” Ga. v. Ashcroft, 539 U.S. at 492 (Souter, J., dissenting)

(emphasis added).

>This was the lower court’s opinion supporting the judgment

that was vacated and remanded in Jackson v. Perry, 160 L. Ed. 2d

252 (2004); the issues addressed by amicus in this brief were

discussed by the court only in that opinion, and not in its June 9,

2005 remand opinion (reprinted at J.S. App. la-50a in No. 05-

204).

able to constitute a ‘majority’ in a single-member district —

could extend to a group that was a numerical minority but had

predictable cross-over support from other groups.”) (citing

cases).

LDF writes separately as an amicus to urge the Court to

interpret the first Gingles requirement, consistent with the text

and purpose of the Voting Rights Act, to include those districts

in which a minority group can demonstrate an “ability to elect”

— even if it does not comprise a mathematical majority of the

population. Such a limited extension of the first Gingles

precondition would demonstrate a recognition of the political

realities of the American electoral process and is fully

consistent with the evolution of the Court’s Section 2

jurisprudence. The Court should not, however, extend

coverage of Section 2 to include claims in which a minority

group alleges that it can exercise some amorphous degree of

“influence” over elections or governance, as doing so would

establish a new standard that is both unworkable and

ungrounded in either the statute or the relevant case law.

A. Recognizing “Crossover” or “Coalition” Districts

under Section 2 Is Consistent with the Statutory

Language, Structure and Intent, and also with

This Court’s Voting Rights Act Jurisprudence.

Because the language of Section 2 explicitly protects the

ability of minority voters to “elect representatives of their

choice,” 42 U.S.C. § 1973(b) (emphasis added), the focus of

the Section 2 inquiry at the precondition stage should be

whether the specific conditions in a jurisdiction permit the fact-

finder to conclude that a minority group in a given district does

in fact have a reliable opportunity to elect its candidates of

choice. See Gingles, 478 U.S. at 43-46 (describing legislative

history and purpose of the Act). The pertinent difference

9

between “coalition” or “crossover districts,” on the one hand,

and “influence districts,” on the other, is that the former

districts involve instances in which there is a cognizable

“ability to elect” claim.

The Court should not interpret the Gingles preconditions

so strictly as to frustrate this clear statutory purpose. The

Gingles test was fashioned in order to make sure that a

cognizable Section 2 claim (and remedy) exists, especially

given that the statute expressly disavows any guarantee of

proportional representation. Gingles, 478 U.S. at 50 & n.17

(purpose of first precondition designed so that Section 2 would

“only protect racial minority votes from diminution

proximately caused by the districting plan; it would not assure

racial minorities proportional representation.”) (emphasis in

origina!) (internal citations omitted). Thus, Gingles viewed the

first precondition as a means to ensure that courts would

consider Section 2 claims in jurisdictions where “minority

voters possess the potential to elect representatives in the

absence of the challenged structure or practice,” 478 U.S. at 50

(emphasis in original), and the precondition should be

understood to serve a functional — not inflexible — purpose.

Growe, 507 U.S. at 40 (“[T]Jhe ‘geographically compact

majority’ and ‘minority political cohesion’ showings are

needed to establish that the minority has the potential to elect

a representative of its own choice in some single-member

district.”)

Nor is there a practical reason to limit the protections of

Section 2 to majority-minority communities. There is nothing

talismanic about a district with a (single or combined) minority

population greater than fifty percent. Both the Gingles

preconditions and Section 2 itself were designed to provide

practical measures for realizing the ability of minority voters to

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elect candidates of choice.‘ The degree of racial polarization

will drive what level of minority population is necessary and

the analysis can vary even within a single state, or jurisdiction.

The Gingles Court itself recognized that some white

crossover voting may exist and should be considered in the

fact-intensive analysis of whether a Section 2 claim could be

established. 478 U.S. at 56 ( “And, in general, a white bloc

vote that normally will defeat the combined strength of

minority support plus white ‘crossover’ votes rises to the level

of legally significant white bloc voting... . The amount of

white bloc voting that can generally ‘minimize or cancel’

... black voters’ ability to elect representatives of their choice,

however, will vary from district to district according to a

number of factors.”) (emphasis added) (internal citations

omitted).

Similarly, several lower courts — including the Fifth

Circuit — have expressly recognized that minority coalitions

among groups that each may not meet the first Gingles

prerequisite can be considered together to satisfy its

requirement, at least if they can establish that voters of both

“Indeed, in the early years of Section 2 enforcement, courts

routinely required supermajorities to guarantee the minority

voters’ ability to elect. See, e.g., Ketchum v. Byrne, 740 F.2d

1398, 1413-17 (7* Cir. 1984) (collecting cases). Just as it is

possible that minority voters who constitute a bare majority of the

population a district may fail to demonstrate that they have the

ability to elect candidates of their choice, it is also theoretically

possible that minority voters who are /ess than a majority of a

district can make such a showing. See Gingles, 478 U.S. at 56

n.24 and accompanying text. Courts should be free to continue to

take into account the changing landscape of American politics

and the development of minority coalitions or the phenomenon of

limited white crossover voting where it exists.

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groups vote together cohesively. See, e.g., Campos v. City of

Baytown, Texas, 840 F.2d 1240, 1244-46 (5" Cir. 1988)

(affirming trial court finding of cohesion and applying

principle), cert. denied, 492 U.S. 905 (1989); League of United

Latin American Citizens v. Midland Ind. Sch. Dist., 812 F.2d

1494, 1500-02 (5" Cir.) (same), vacated and ony on other

grounds, 829 F.2d 546 (5" Cir. 1987); see also Concerned

Citizens v. Hardee County Bd., 906 F.2d 524, 526-27 (11 Cir.

1990) (recognizing principle but affirming trial court’s

determination that cohesion between groups not proved);

Brewer v. Ham, 876 F.2d 448, 453 (5® Cir. 1989) (same).

This Court has not decided the question. However, in Ga.

v. Ashcroft, all of the Justices recognized the relevance of

coalition and crossover districts in assessing whether

retrogression under Section 5 occurred in districts where

minority voters were provided an opportunity to elect their

candidates of choice under the benchmark plan. See 539 U.S.

at 480 (“[A] State may choose to create a greater number of

districts in which it is likely — although perhaps not quite as

likely as under the benchmark plan — that minority voters will

be able to elect candidates of their choice.”); id. at 492 (Souter,

J., dissenting) (“The prudential objective of § 5 is hardly -

betrayed if a State can show that a new districting plan shifts

from supermajority districts, in which minorities can elect their

candidates of choice by their own voting power, to coalition

districts, in which minorities are in fact shown to have a similar

opportunity when joined by predictably supportive nonminority

voters.””) (emphasis added).

Although pervasive racially polarized voting patterns

continue to dominate the political landscape, see, e.g., Pamela

S. Karlan, Loss and Redemption: Voting Rights at the Turn of

a Century, 50 VAND. L. REV. 291 (1997); Samuel Issacharoff,

Polarized Voting and the Political Process: The

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Transformation of Voting Rights Jurisprudence, 90 MICH. L.

REV. 1833 (1992), there are (and have long been) some

communities in which minority-preferred candidates enjoy

limited, reliable white crossover support or in which minority

voters have formed sufficiently large and dependably cohesive

coalitions with other racial or ethnic minorities to elect a

candidate of their choice. See, e.g., Bernard Grofman, Lisa

Handley, & David Lublin, Drawing Effective Minority

Districts: A Conceptual Framework and Some Empirical

Evidence, 79 N.C.L. REV. 1383, 1394-1423 (2001) (empirical

analyses of election results in certain communities where black

voters were able to elect candidates of choice despite not

comprising a majority of the districts’ respective populations).

In its rulings since Gingles, the Court has recognized the

phenomenon that there are some communities in which

coalitions are formed among minority groups or small, reliable

levels of crossover voting from white voters that provide

certain minorities, who themselves may not comprise a

majority of the voting population, with a reasonable

opportunity to elect their candidates of choice. See, e.g., Ga. v.

Ashcroft, 539 U.S. at 480; DeGrandy, 512 U.S. at 1023.

‘It bears emphasis that whether a court will find reliable,

predictable majority crossover voting of sufficient size to allow

the election of minority voters’ candidates of choice will depend

on the nature and extent of the proof offered by Section 2

claimants. The inquiry is similar in nature to that described by

Justice Brennan in Gingles with respect to determining whether

white bloc voting would “generally ‘minimize or cancel,’ . . .

black voters” ability to elect representatives of their choice,” and

“will vary from district to district according to a number of

factors.” See Gingles, 478 U.S. at 56, text at n.24 (setting out

non-exclusive list of potentially relevant factors).

13

~~

To be sure, it will continue to be true that for most Section

2 claims, having a majority of minority voters will be necessary

to demonstrate an “ability to elect.” But, the existence of

crossover and coalition districts where the opportunity to elect

candidates of choice is available to minority voters should be

embraced and protected by the Court’s Section 2 jurisprudence,

not held in check based on an unnecessarily restrictive

interpretation of its judicially-crafted test. DeGrandy, 512 U.S.

at 1020 (describing the Voting Rights Act as “a statute meant

to hasten the waning of racism in American politics”).

Requiring minority voters to show that they are an absolute -

majority ignores the practical reality that, in some jurisdictions,

they are capable of electing preferred candidates without such

numbers. It also places an artificial limitation on the

effectiveness of Section 2 by failing to allow it to account for

shifts in the political landscape. See Voinovich, 507 U.S. at 158

(“[T]he Gingles factors cannot be applied mechanically without

regard to the nature of the claim.”).

Indeed, in DeGrandy, this Court expressly rejected the

State’s safe harbor argument on the grounds that relying too

heavily on majority-minority districts as the only way in which

“obscure the fact that there are communities in which minority

citizens are able to form coalitions with voters from other racial

and ethnic groups, having no need to be a majority within a

single district in order to elect candidates of their choice.” 512

U.S. at 1020.

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B. Section 2 Claims Involving “Coalition” or

“Crossover” Districts Are Governed by

Manageable Standards Already Familiar to

Federal Courts from Past Section 2 Litigation.

Relaxing the first Gingles precondition of the Section 2

inquiry to permit a more exacting focus on minority voters’

“ability to elect” in a coalition or crossover district only brings

it closer in line with the text of the statute, which codified the

“totality of the circumstances” analysis from White v. Regester,

412 US. 755 (1973), and the intent of Congress, which was to

take account of the contemporary, practical realities of the

political process. See Gingles, 478 U.S. at 45 (noting that the

Senate Committee recognized that “the question whether the

political processes are ‘equally open’ depends on a searching

practical evaluation of the ‘past and present reality,’ . . . and on

a ‘functional’ view of the political process.”) (some internal

quotations and citations omitted). See also Ga. v. Ashcroft, 539

U.S. at 480 (“The ability of minority voters to elect a candidate

of their choice is important: but often complex in practice to

determine.”).

This more practical application of the first Gingles

precondition recognizing districts that may not have a

numerical majority of minority voters would not open the door

to claims that Congress never intended to protect in Section 2,

since proof of the other two Gingles preconditions would

remain necessary. See Ga. v. Ashcroft, 539 U.S. at 485 (“And

it is of course true that evidence of racial polarization is one of

many factors relevant in assessing whether a minority group is

able to elect a candidate of choice or to exert a significant

influence in a particular district.”). The other two Gingles

prongs, along with other “totality of the circumstances”

considerations, will assist courts in determining if a given

15

district provides minority voters with an “ability to elect” as

opposed to merely the “ability to influence.”

Indeed, the determination of an “ability to elect” in

coalition or crossover districts is one that even the dissenting

Justices in Ga. v. Ashcroft acknowledge is concrete and

demonstrable, 539 U.S. at 492 (Souter, J., dissenting), not an

abstract hope too elusive to for courts to establish limiting

principles, as is the case with the recognition of influence

districts. Id. at 496-97 (but noting difficulties of quantifying

“influence”).

While it is true that the Court’s recent decision in Ga. v.

Ashcroft held that influence districts could be considered in a

§ 5 retrogression analysis, the recognition of influence districts

in that context should not extend to Section 2. Ga. v. Ashcroft,

539 U.S. at 478 (“We have, however, ‘consistently understood’

§ 2 to “combat different evils and, accordingly, to impose very

different duties upon the States.”) (quoting Reno v. Bossier

Parish Sch. Bd., 520 U.S. 471, 477 (1997)). See also Holder

v. Hall, 512 U.S. 874, 883 (1994) (plurality opinion) (Sections

2 and 5 are “different in structure, purpose, and application”).

Indeed, as the Court in Ga. v. Ashcroft noted, “[i}n contrast to

§ 5’s retrogression standard, the ‘essence’ of a § 2 vote dilution

claim is that ‘a certain electoral law, practice, or structure .. .

‘For example, a minority group could require so many

crossover votes that it does not truly possess the capacity to

choose its own candidate, but only to influence electoral contests

between two or more white-preferred candidates. Similarly, a

minority group that is too small and that thus requires too high a

level of white crossover support will be unlikely to satisfy the

third Gingles precondition: that white regularly vote as a bloc

against the minority preferred candidate. A careful analysis of

election data, therefore, will shed light on which role minority

voters actually play in the political process.

16

cause[s] an inequality in the opportunities enjoyed by black [or

other minority voters] and white voters fo elect their preferred

representatives.” Id. (quoting Gingles, 478 U.S. -at 47)

(emphasis added).

Just as the text of Section 2 provides the basis for a more

flexible interpretation of the first Gingles precondition,

therefore, it also provides a built-in limiting principle: the

requirement that minorities in an existing or proposed district

demonstrate an ability to elect “representatives of their choice.”

42 U.S.C. § 1973(b). Whereas the parameters of a Section 5

retrogression determination find their origins in this Court’s

jurisprudence, see Beer v. United States, 423 U.S. 130, 141

(1976), the statutory language about the minority group’s

“ability to elect” is the touchstone of any Section 2 analysis.

The court below erred in ending its Section 2 analysis

when it found that African-American voters in District 24 were

unable to meet the majority-minority requirement of the first

Gingles precondition. Sessions, 298 F. Supp. 2d at 483 (“A

minority group lacking a majority cannot elect its candidate of

choice, and denying the group a separate district cannot be a

denial of any opportunity protected by the [Voting Rights]

Act.”). Its singular focus on the numerical aspect of the

Gingles test was unwarranted and turned its attention away

from the relevant “ability to elect” question.

This Court should clarify its ruling in Gingles, remand the

case to the District Court to determine, under the totality of the

circumstances, whether District 24 provides minority voters an

opportunity to elect their candidate of choice. Among other

circumstances, the lower court should seek to determine the

degree of racial polarized voting with special focus given to

whether the district provides the minority voters with the

opportunity to elect candidates of choice.

17

Whatever Limitations, If Any, The Court

Places Upon Political Gerrymanders, It Is

Essential That They, Like Other

Redistrictings, Remain Subject To

Meaningful Scrutiny Under Section 2

In the last two decades, developments in computer

technology and software programming have made possible

increasingly sophisticated and precise shaping of districts for

political, among other, ends, and this Court’s attention has been

correspondingly drawn to the question whether the Constitution

places any limits upon partisan gerrymandering. These appeals

grow out of cases filed to challenge one such redistricting.

Some plaintiffs in those cases alleged that the 2003

districting plan at issue, even if it were drawn for partisan ends,

also infringed upon minority voting rights protections afforded

by Section 2 of the Voting Rights Act. The court below

rejected those claims on the ground, inter alia, that their

proponents could not satisfy the first Gingles precondition. See

supra § 1. However, the court also indicated in its decision that

even were this not its view, it would have rejected the claims

by applying a doctrine developed by the Fifth Circuit more than

a dozen years ago, which holds that neither the second nor the

third Gingies preconditions (cohesion and racially polarized

voting) can be established where party affiliation is also

characterized by substantial racial differences. Session, 298 F.

Supp. 2d at 478 n.88.

Such an approach would effectively eliminate the

application of Section 2 to redistricting plans in areas where

political party loyalties have split along racial or ethnic lines,

which has become common in our nation at this point in its

history. That result is insupportable as a matter of the statutory

text or Congressional purposes underlying enactment and

amendment of Section 2 of the Voting Rights Act. It would be

especially unfortunate if this Court were to sanction it, directly

or implicitly. Rather, the Court should make clear in its

decision on these appeals that the Fifth Circuit’s approach is

inconsistent with the Act.

A. The Doctrine that Racial Cleavages in Political

Party Affiliation Negate the Significance Under

Section 2 of Racial Voting Patterns Misconstrues

this Court’s Section 2 Jurisprudence.

For twenty years, racially polarized voting patterns have

been at the core of this Court’s Voting Rights Act

jurisprudence. See, e.g., Gingles, 478 U.S. 30. The analysis of

racially polarized voting is a very apt analytical tool because it

aids in identifying the circumstances in which private behavior

combines with structural electoral arrangements to impede

equal opportunities for minorities to elect candidates of choice

and participate in the political process. See id. at 51. Under

Section 2, two of the three Gingles preconditions involve

variants of bloc voting. ‘The standard is in many respects self-

regulating. If a substantial degree of polarization is present,

assuming other threshold conditions are met, the analysis

proceeds, whereas a failure to show legally significant

polarization ends the inquiry.

Since this Court decided Gingles, the preconditions have

played an essential gate-keeping function for courts by allowing

them to approach Section 2 claims with a discernible standard.

As the designation suggests, meeting the preconditions does not

suffice for purposes of the ultimate liability determination

under Section 2 — that determination is made only under the

totality of the circumstances, including consideration of the

19

“Senate factors.” Jd. at 36-37. Accordingly, in the area of

minority voting rights protection, Congress has identified a

problem, provided a remedy, and this Court has supplied, and

at times refined, a judicially manageable standard.

Racially polarized voting patterns are the touchstone of

Section 2 claims. In Gingles, the Court addressed the question

whether the Section 2 dilution inquiry concerns itself

exclusively with the existence of polarized voting patterns or

also with the reasons that such patterns occurred. Writing for

the Court, Justice Brennan explained that:

It is the difference between the choices made between

blacks and whites — not the reasons for that difference —

that results in blacks having less opportunity than whites

to elect preferred representatives. Consequently, we

conclude that under the “results test” of Section 2, only the

correlation between the race of the voter and selection of

certain candidates, not the causes of the correlation

matters.

Id. at 64 (emphasis in original).

All Justices accepted the principle announced by this

portion of Justice Brennan’s plurality opinion, at least insofar

as it applied to the preconditions to bringing a Section 2 claim.

See Gingles, 478 U.S. at 100 (O’Connor, J., joined by Burger,

C.J., Powell and Rehnquist, JJ., concurring in the judgment):

Insofar as statistical evidence of divergent racial voting

patterns is admitted solely to establish that the minority

group is politically cohesive and to assess its prospects for

electoral success, | agree that defendants cannot rebut this

showing by offering evidence that the divergent racial

voting patterns may be explained in part by causes other

20

than race, such as the underlying divergence in the

interests of minority and white voters. I do not agree,

however, that such evidence can never affect the overall

vote dilution inquiry.

(Justice White did not join this part of Justice Brennan’s

opinion only insofar as it would not have permitted

consideration of the race of the candidate, as well as the race of

the voter, in the “totality of the circumstances” analysis.

Gingles, 478 U.S. at 83.)

Notwithstanding this functional agreement that the Gingles

preconditions do not end the dilution analysis but rather operate

to narrow the number of cases that require further Section 2

consideration under the totality of the circumstances, the Fifth

Circuit has adopted an inconsistent rule which permits the very

type of “rebuttal evidence” disfavored by the Court. See

League of Latin American Citizens v. Clements, 999 F 2d 831,

850, 858-59 (5" Cir. 1993) (en banc) (LULAC), cert. denied,

510 U.S. 1071 (1994). Although the LULAC court insisted on

an evaluation of the role of partisan causation as an explanation

for polarized voting patterns with all of the attendant problems

of that approach, see, e.g., Bernard Grofman & Lisa Handley,

Issues in Voting Rights, 65 Miss. L.J. 205, 222-34 (1995);

Pamela S. Karlan & Daryl J. Levinson, Why Voting is Different,

84 CaL. L. Rev. 1201, 1223-27 (1996), it did not clearly

explain how its newly announced rule of Section 2 analysis

would operate. LULAC, 999 F.2d at 860 (“. . . we need not

resolve the debate today. Whether or not the burden of the

plaintiffs to prove bloc voting includes the burden to explain

[that is, to negate the role of] partisan influence, the result is the

same.”)

The LULAC rule has both doctrinal and evidentiary

shortcomings. As a legal matter, it introduces partisan

21

intent/causation into the proof requirements of a statute that

was expressly amended by Congress to establish a results test

in order to make proof of intent unnecessary. See Gingles, 478

U.S. at 35-37 (summarizing history). As an evidentiary and

empirical matter the problem is two-fold:

First, there is sufficient correlation between partisanship

and racial bloc voting patterns in so many parts of the country

that the two are at best complicated, or in some cases

impossible to disentangle. See, e.g., Grofman & Handley, 65

Miss. L.J. at 229 (“. . . separating out racial from partisan

concerns will not be easy, and forcing plaintiffs to try to do so

in order to succeed in proving a Section 2 violation in situations

involving partisan elections will make it much harder for

plaintiffs to prevail in such challenges, even in situations where

~ minority exclusion [is] total”); Karlan & Levinson, 84 CAL. L.

REV. at 1223-24 (noting shortcomings of statistical models that

attempt to disaggregate race and partisanship); Richard L.

Engstrom, The Reincarnation of the Intent Standard: Federal

Judges and At-Large Election Cases, 28 How. L.J. 495, 506

(1985) (criticizing attempts by courts to “cleanse” racially

divided voting patterns of their racial content through

multivariate analysis); cf Vieth v. Jubelirer, 541 U.S. at 287

(Scalia, J.) (“But a person’s politics is rarely as readily

discernible — and never as permanently discernible as a

person’s race. Political affiliation is not an immutable

characteristic, but may shift from one election to the next; and

even within a given election, not all voters follow the party

line.”’).

Second, the introduction of partisan causation in the initial

precondition stage of the Gingles analysis transforms a

judicially manageable standard for political fairness to minority

voters into a judicially created barrier to the congressionally

authorized method of relief.

22

In a footnote, the court below appears to extend the Fifth

Circuit’s polarized voting causation rule. Session, 298 F. Supp.

2d at 478 n.88. Contrary to Gingles and its progeny, the court

announces that its newly devised test requires that at the

Gingles preconditions stage, plaintiffs bear the burden of

disproving what amounts to a presumption of partisan

causation. /d.’ Placing this affirmative burden on plaintiffs at

the threshold stage transforms partisanship from one factor

among others to be taken into account in the “totality of the

circumstances” analysis into an outcome-determinative issue,

despite the facts that: (a) it is not mentioned in the statute; and,

(b) all members of the Court in Gingles accepted .he

proposition that the issue was relevant only at the final

“totality” stage of the case, except for three Justices who would

have excluded its consideration even at that stage.

The Fifth Circuit’s particularly muscular version of

partisan polarization presumption is also anomalous among

lower federal courts. Although several Circuits recognize that

it is proper to consider explanations for voting patterns under

"Cf. Johnson v. Cal., 162 L. Ed. 2d 129, 139 (2005) (“[A]

defendant satisfies the requirements of Batson’s first step by

producing evidence sufficient to permit the trial judge to draw an

inference that discrimination has occurred. Respondent, however,

. .. contends [that] a Batson claim must prove the ultimate facts

by a preponderance of the evidence in the prima facie case... .

Respondent’s argument is misguided. . . . ‘It is not until the third

step that the persuasiveness of the justification becomes relevant

— the step in which the trial court determines whether the

opponent of the strike has carried his burden of proving

purposeful discrimination.’ Purkett [v. Elem, 514 U.S. 765] at

768.”) Since Section 2 was amended in 1982 to eliminate any

requirement of proving intent, placing the burden on plaintiffs to

disprove a presumed nondiscriminatory explanation for racially

polarized voting patterns is even more insupportable.

23

the totality of the circumstances, consistent with Justice

O’Connor’s opinion in Gingles, the Fifth Circuit appears to

stand alone in its requirement that partisan causation be

presumed to explain racially polarized in voting patterns. See

e.g., United States v. Charleston County, 365 F.3d 341, 348-49

(4" Cir. 2004); Goosby v. Town Bd. of Hempstead, 180 F.3d

476, 493 (2d Cir. 1999); Uno v. City of Holyoke, 72 F.3d 973,

983 (1* Cir. 1995).

B. The Fifth Circuit’s Partisanship Exception to the

Second and Third Gingles Preconditions Ignores

the Extent to which Race Has Become Implicated

in Partisan Alignment.

Apart from the doctrinal and evidentiary problems with the

Session variant of the partisan polarization presumption in the

Section 2 analysis, the rule ignores the extent to which today’s

political parties have been shaped by express or implicit racial

considerations and appeals. Faced with an entrenched and

well-documented history of discrimination in voting with

discernible present day effects, Congress has determined on

several occasions that the best way to enhance minority

political inclusion is to take account of and try to ameliorate

racial cleavages rather than seeking to explain them away.

The contemporary party alignments happened over time,

but they cannot be said to be sufficiently different in nature

from the trend that began prior to the passage of the Voting

Rights Act to justify a prophylactic rule that places them

beyond the reach of courts. See Grofman & Handley, 65 Miss.

L.J. at 229 (explaining that Blacks have been overwhelmingly

Democratic in their party affiliation since 1964, and whites

have become increasingly Republican).* The contemporary

"In Gingles, 478 U.S. at 40, this Court acknowledged the

record evidence of the use of race to divide the electorate for

24

partisan trends emerged in a context that scholars and political

operatives both recognize. See Karlan & Levinson, 84 CAL. L.

REV. at 1223 (citing Thomas B. Edsall & Mary D. Edsall,

CHAIN REACTION; THE IMPACT OF RACE RIGHTS, AND TAXES

ON AMERICAN POLITICS, at 151 (1991) (arguing that racial

attitudes after the 1960s “became a central characteristic of

both ideology and party identification, integral to voters’

choices between Democrats and Republicans”).

Indeed, even political partisans, at times, express a

willingness to acknowledge the role that race has played in the

prevailing political alignment. As the Washington Post

recently reported, in a prepared speech delivered to the NAACP

during its national conference in July of 2005, Republican

National Committee Chairman, Ken Mehlman, apologized for

“the southern strategy,” which the paper described as

“Republican efforts tu use raze as a wedge issue on matters

such as desegregation and busing — to appeal to white

southern voters.” Mike Allen, RNC Chief to Say It Was

‘Wrong’ to Exploit Racial Conflict for Votes, WASHINGTON

Post, July 14 2005, at A4. “By the ’70s and into the 80s and

nearly a century, continuing beyond the date of the last _—e

Rights Act renewal:

[T]he [district] court found that white candidates in North

Carolina have encouraged voting along color lines by

appealing to racial prejudice. It noted that the record is

replete with specific examples of racial appeals, ranging in

style from overt and blatant to subtle and furtive, and in date

from the 1890’s to the 1984 campaign for a seat in the

United States Senate. The court determined that the use of

racial appeals in political campaigns in North Carolina

persists to the present day and that its current effect is to

lessen to some degree the opportunity of black citizens to

participate effectively in the political processes and to elect

candidates of their choice.

25

90s, the Democratic Party solidified its gains in the African

American community, and we Republicans did not effectively

reach out .... Some Republicans gave up on winning the

African American vote, looking the other way or trying to

benefit politically from racial polarization. I am here today as

the Republican Chairman to tell you we were wrong.” /d.

Nor is the history of the Democratic Party without

substantial racial strife. See Mary Frances Berry & John W.

Blassingame, LONG MEMORY; THE BLACK EXPERIENCE IN

AMERICA 385 (1982) (detailing the exclusion of the integrated

Mississippi Freedom Democratic Party from the party’s

national convention in 1964); Paul Frymer, UNEASY

ALLIANCES; RACE AND PARTY COMPETITION IN AMERICA 3-7

(1999) (detailing the neglect of African-American interests by

the modern Democratic party). Indeed, Frymer observes more

broadly that “[a]t most moments in American history, the desire

of political parties to seek national office has meant

marginalization for African Americans .... Weare... one of

few democratic nations where party leaders have an incentive

to appeal almost exclusively to the majority group.” Jd. at 6.

In light of this history, whether desirable or not, it seems

particularly incongruous for a court to begin its analysis of a

congressionally mandated minority voting protection and

political fairness measure with the presumption that racial

patterns of partisan affiliation negate the significance of

persistent racial polarization at the ballot box. A rule whose

expansion has the potential to allow political parties to “benefit

politically from racial polarization” rather than ameliorating it

is unwarranted.

26

C. Whether or Not It Holds that There Are

Constitutional Limits to Partisan Gerrymandering

in the Redistricting Process, the Court Should

Explicitly Disapprove the Fifth Circuit’s Unique

Partisanship Exception to Section 2.

For the reasons we have described above, politics in the

United States is now substantially intertwined with race and

ethnicity, and correspondingly, partisan gerrymandering may

dramatically impact minority voting strength, as the highly

partisan redistricting plan at issue in these appeals

demonstrates. With support from Members of both major

political parties, Congress has exercised its constitutional

authority to place minority voting rights above partisan political

interests through the passage and renewal of the Voting Rights

Act.”

If this court allows the continued application of a rule that

racial or ethnic polarization in partisan alignment negates the

existence of the Gingles preconditions of cohesive minority

voting and racially polarized voting, it will place minority

voters beyond the reach of Section 2 protections. This result is

contrary to the language and purposes of the Voting Rights Act

and this Court should expressly disapprove it in these appeals,

whether or not it fashions limitations on partisan gerrymanders.

The need for the Court explicitly to address the LULAC

rule is especially critical if the result of its renewed

deliberations on partisan gerrymandering places no substantial

limitations upon that device, as party organizations can be

°Cf. Vieth, 541 U.S. at 275 (discussing Congress’ authority

over Congressional districting pursuant to Art. I, Sec. 4 of the

Constitution and noting the failure to exercise that authority in

recent history to limit partisan gerrymandering).

27

expected to maximize political advantage in this fashion to the

greatest extent allowable by the law.

CONCLUSION

For the foregoing reasons, amicus curiae respectfully

suggests that the judgment below should be vacated and the

case remanded for reconsideration in light of the clarified

Gingles standards urged in this brief.

Respectfully submitted,

THEODORE M. SHAW

Director-Counsel

JACQUELINE A. BERRIEN

*NORMAN J. CHACHKIN

DEBO P. ADEGBILE

CHINH Q. LE

JENIGH J. GARRETT

NAACP LEGAL DEFENSE

AND EDUCATIONAL FUND, INC.

99 Hudson Street, 16 Floor

New York, NY 10013

(212) 965-2200

*Counsel of Record

Attorneys for Amicus Curiae

Dated: January 10, 2006

: &

IN THE

Supreme Court of the United States” wi

Qe

EDDIE JACKSON, ef al.,

Appellanis,

v.

RICK PERRY, ef al.,

Appellees.

On Appeal from the United States District Court

for the Eastern District of Texas

BRIEF OF THE NORTH CAROLINA STATE

CONFERENCE OF THE NATIONAL ASSOCIATION

FOR THE ADVANCEMENT OF COLORED PEOPLE

AS AMICUS CURIAE IN SUPPORT OF APPELLANTS

ANITA S. EARLS

Counsel of Record

JuLtus L. CHAMBERS

JOHN CHARLES BOGER

CENTER FOR CivViL RIGHTS

UNIVERSITY OF NORTH CAROLINA

SCHOOL OF LAW

CB # 3380, 100 Ridge Road

Chapel Hill, N.C. 27599-3380

(919) 843-7896

Counsel for Amicus Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................sccccccssccossssecesessrseeees ii

INTEREST OF AMICUS CURIAE ..000......ccccccsssscsseessesecenes 1

SUMMARY OF ARGUMENT ...00.....5..0000. ccccesesseeseessesenees 4

TIT cuciiniinasiibiceidiititgcepebitnicnticalciiaapiindiainniiinataiiitaastiaiaaial 5

I. SOUND REDISTRICTING PRINCIPLES ARE

BEST MET WHEN STATE LEGISLATURES HAVE

THE DISCRETION TO CREATE DISTRICTS WITH

DE FACTO MAJORITIES OF BLACK VOTERG............ 5

Ii. DISTRICTS THAT EFFECTIVELY ENABLE

MINORITY VOTERS TO ELECT CANDIDATES OF

THEIR CHOICE SHOULD BE PROTECTED BY

SECTION 2 OF THE VOTING RIGHTS ACT............... 10

A. The First Gingles Precondition is a Proxy for

PN ee viteneticntstitnipicrsantininnpgeibinhioaivingeeimvitii 12

B. Minority Voters Can Sometimes Elect Their

Candidates of Choice Even if they are Not a Majority in

Ri cichinnsinctinionmenunaienensmineainaanecainninnii 14

c. The Potential to Elect in a Coalition District

Must Be Protected in Section 2 of the Voting Rights

| ee 15

aD Gite ~cnscccensssrnpeserssnenstncesnanonnnnasnsenemmnareniieaneenes 17

APPENDIX

Pender County v. Bartlett, No. 04-696 (Wake Co. Sup. Ct.

Dec. 2, 2005).

TABLE OF AUTHORITIES

Cases

Aldasoro v. Kennerson, 922 F. Supp. 339 (S.D. Cal. 1995)

Arizona Minority Coalition for Fair Redistricting v. Arizona

Indep. Redistricting Comm'n 366 F. Supp. 2d 887 (D..

Es Be icictniiclanssininvtcntininssitantiinatabiininnietaislinniinstaviaguinia 16

Easley v. Cromartie, 532 U.S. 234 (2001)........:ccscssseseeeseenees 6

Géorgia v. Ashcroft, 539 U.S. 461 (2003) ...........0000 4, 14, 15

Gingles v. Edmisten, 590 F. Supp. 345 (E.D.N.C. 1984)2, 10,

12

Growe v. Emison, 507 U.S. 25 (1993) .....css-cecsssesssessvees 12, 13

Hall v. Commonwealth of Virginia, 385 F.3d 421 (4" Cir.

ERE RSE REFER Ye SAR ROE Ie 8

Jeffers v. Clinton, 756 F. Supp. 1195 (E.D. Ark. 1990) aff'd

I a 11

Johnson v. De Grandy, 512 U.S. 997 (1994)............. 6, 13, 14

Ketchum v. Byrne, 740 F.2d 1398 (7™ Cir. 1984) ........0.s0000. 12

Martinez v. Bush, 234 F. Supp. 2d 1275, 1322 (S.D. Fla.

ak a 13

McNeil v. Legislative Apportionment Comm'n, 828 A.2d

840, 853 (N.J. 2003), cert. denied, 540 U.S. 1107, 157 L.

Be Sa re atiissntienientidsdicctnnnianintiintiiindstlinnbiecents 16, 17

Montgomery Co. Branch of the N.A.A.C.P. v. Montgomery

Co. Bd. of Elect., 3:90-27 (M.D.N.C. 1990). ........ccesceeseeees |

N.A.A.C.P. v. City of Statesville, 606 F. Supp 569 (W.D.N.C.

ED ceiinsscaepmnecaianieieiiiicivniceantiiniiiinsiahiaiaiia tittle tates I

N.A.A.C.P. v. Roanoke Rapids, 2:91-36-BO (E.D.N.C. 1992)

asinsiiaaseiapiaieinitnibaaiaiindijiieieiiatiianieabiaeiaimibaiadanlidl sii geatiiiditeas |

N.A.A.C.P. v. Thomasville, No. 4:86-291, 2005 WL 3198981

Se 8 ee eee 1

ii

N.A.A.C.P. v. Rowan Board of Education, 4:91-293-F WB-

A lice PO cc ecicenesenenmmtatigneiaanestniminnentie 1

Pender County v. Bartlett, No. 04-696 (Wake Co. Sup. Ct.

Ee ee ieinrctnscitiacinnicistishnepiinicinrivandiitanietiniiaiiicdniin passim

Rodriguez v. Pataki, 308 F. Supp. 2d 346 (S.D.N.Y. 2004)

lisa baleiiadaihtaltstening ili becscniniaiaiiaeantindiidiepscileieaiuil 16

Shaw v. Reno, 509 U.S. 630 (1993) .........ccccsceccesseceresseeneeerenes 6

Stephenson v. Bartlett, 562 S.E.2d 377 (N.C. 2002).............. 7

Stephenson v. Bartlett, 582 S.E.2d 247 (N.C. 2003).............. 7

Thornburg v. Gingles, 478 U.S. 30 (1986) ...........006. passim

Voinovich v. Quilter, 507 U.S. 146, 153 (1993) .......cceeeee 13

White v. Regester, 420 U.S. 755 (1973)......cccccccccssseeseeseeseees i

Statutes

a ER UP TT Sichiciailhsacscisstisbiieiendpuiotntaneciedinaniatietaptincanitediinds 5

N. C. Gem. Stat. § 1-267.1 (2005) ....ccccscossosccvscerssreesssscevessceses 3

Other Authorities

Kimball Brace, Bernard Grofman, Lisa Handley and Richard

Niemi, Minority Voting Equality: The 65 Percent Rule in

Theory and Practice, 10 LAW AND POLICY 43 (1988).....11

Chandler Davidson and Bernard Grofman, eds., QUIET

REVOLUTION IN THE SOUTH 174 (1994) .0......:cccescesseeeeeeeees 2

Bernard Grofman, Lisa Handley, & David Lublin, Drawing

Effective Minority Districts: A Conceptual Framework

and Some Empirical Evidence, 79 N.C. L. REV. 1383

SEiiiiehciccctintielitiniateeipecpiibichikdecesicaiianbiteniiajnhldarsiadiednsaitpitensi 10, 14

Note, 7h2 Implications of Coalitional and Influence District

for Voter Dilution Litigation, 117 HARV. L. REV. 2598

Oversight Hearing: "The Voting Rights Act: The Continuing

Need for Section 5" Before the Constitution Subcomm. of

the House Comm. on the Judiciary, 109" Cong. (2005)

ili

(statement of Richard L. Engstrom) available at

http://judiciary.house.gov/oversight.aspx?ID=197 ............ |

Richard H. Pildes, Js Voting Rights Law Now at War with

Itself? Social Science and Voting Rights in the 2000s, 80

BUR en BE. SG 0 Cae D creneevepncosibnnpanniesiainctiiienbianeaiin 14, 16

TERA DE. FEMOET CODED covcesesncdicecinnsinepatinsdinittigstnanaittnaied 11

The Supreme Court, 2002 Term Leading Cases, 117 HARV.

L.REV. 469 (November, 2003)..........0.cssorscserssseserseseseseores 17

Seth W. Whitaker, Stephenson v. Bartlett and the Judicial

Promotion of Electoral Competition, 91 VA. L. REv. 203

(BIBI) ccorccnsserssereccosennsesonnenvennbeqsacsentinniosstvmresienistseiiinnintsinnes 7

iv

INTEREST OF AMICUS CURIAE

The North Carolina State Conference of the National

Association for the Advancement of Colored People (“NC

Conference”) is a non-partisan, non-profit organization with

101 active branches throughout the state.’ Since the passage

of the Voting Rights Act of 1965, the NC Conference has

sought to ensure its fullest enforcement. Many local

branches have been parties in litigation brought in North

Carolina under Section 2 of the Voting Rights Act to

challenge at-large election systems and redistricting plans

that dilute minority voting strength.? In addition, the NC

Conference has engaged in a variety of public education and

community outreach activities to help assure that minority

voters have an equal opportunity to participate in the

electoral process.

Elections in North Carolina continue to be

characterized by racially polarized voting. White bloc voting

in many areas is strong enough usually to defeat the

candidates of choice of black voters.’ Thus, minority

representation on city councils, school boards, county

commissions, in the General Assembly, and in the state’s

Congressional delegation has generally come only after the

' Letters from the parties, consenting to the filing of this brief, are on file

with the Court. Pursuant to Rule 37.6, counsel represent that this brief

was not authored in whole or in part by counsel for any party. No entity

other than the amicus curiae made a monetary contribution to the

preperation or submission of the brief.

See, e.g., N.A.A.C.P. v. Thomasville, No. 4:86-291, 2005 WL 3198981

(M.D.N.C. Nov. 2005); NAACP v. Rowan Board of Education, 4:91-

293-F WB-RAE (M.D.N.C. 1994); N.A.A.C.P. v. Roanoke Rapids, 2:9\-

36-BO (E.D.N.C. 1992); Montgomery Co. Branch of the N.A.A.C.P. v.

Montgomery Co. Bd. of Elect., 3:90-27 (M.D.N.C. 1990); N.A.A.C.P. v.

City of Statesville, 606 F. Supp 569 (W.D.N.C. 1985).

> Oversight Hearing: "The Voting Rights Act: The Continuing Need for

Section 5" Before the Constitution Subcomm. of the House Comm. on the

Judiciary, 109° Cong. (2005) (statement of Richard L. Engstrom)

available at http://judiciary.house.gov/oversight.aspx?1D=197.

creation of single-member districts that afford minority

voters sufficient voting strength to overcome the white bloc

vote in the jurisdiction.“

The NC Conference has been active in the

redistricting process at the state and local level. Over the

past four decades, individual members and branch

representatives have appeared at numerous public hearings

around the state during the legislative redistricting process to

advocate for the creation of majority-minority districts where

necessary to afford minority voters an opportunity to elect

their candidates of choice. On occasion, NC Conference

members have engaged demographers to draw illustrative

redistricting plans demonstrating how best to provide fair

representation for minority voters. Protecting the rights of

minority voters to an effective role in state and local

governments through their chosen representatives is central

to achieving many of the NC Conference’s other goals. The

right to vote is fundamental, and the organization’s priorities

and activities reflect this commitment to civic engagement at

all levels.

As a result of these extensive activities and because

of its commitment to fair representation, the NC Conference

has an interest in ensuring that minority citizens have an

equal and fully effective opportunity to participate in the

political process and to elect representatives of their choice.

In the early days of Voting Rights Act enforcement, it was

generally thought that a district must be 65% black in

population to provide black voters the opportunity to elect

their candidate of choice.’ Over time, that figure has

dropped significantly. Currently, African-American voters

* Chandler Davidson and Bernard Grofman, eds., QUIET REVOLUTION IN

THE SOUTH 174 (1994).

> See, e.g. Gingles v. Edmisten, 590 F. Supp. 345, 358 n.21 (E.D.N.C.

1984).

2

elect candidates of their choice to the North Carolina General

Assembly in districts that generally range from 43% to 56%

black in voting age population.°

Recently a North Carolina state court faced for the

first time the question of whether a district that is less than

50% black in population satisfies the first prong of the

threshold test for vote dilution under Thornburg v. Gingles,

478 US. 30 (1986). In their decision, a three-judge

redistricting court’ unanimously ruled that a “de facto

majority” existed in a legislative district with a 43% black

voting age population that elects the candidate of choice of

black voters. Pender County v. Bartlett, No. 04-696 (Dec. 2,

2005) App. at 39. Amicus Curiae NC Conference has an

interest in safeguarding the ability of the General Assembly

to create legislative districts in the future that are de facto

majority districts for African-American voters, especially

since such districts also best satisfy other important

redistricting goals such as compactness and recognizing

communities of interest.

Thus, it is crucial to North Carolina’s minority voters

for this Court to rule in favor of the Appellants herein on the

second Question Presented and to hold that Section 2 of the

Voting Rights Act does not permit “a State to desiroy a

district effectively controlled by African-American voters,

merely because it is impossible to draw a district in which

African-Americans constitute an absolute mathematical

majority of the population.” Imposing a rigid 50% standard

on the first prong of the Gingles threshold test will unfairly

limit minority electoral participation without serving the

goals or the spirit of the Voting Rights Act. Amicus Curiae

», See App. at 17.

™N.C. Gen. Stat. § 1-267.1 (2005) (three-judge panel shall determine

any action challenging validity of state or congressional redistricting

plan).

3

NC Conference has an interest in preserving Section 2 as a

flexible, viable, and meaningful guarantee of fair

representation for minority voters.

SUMMARY OF ARGUMENT

Appellants are correct that Section 2 of the Voting

Rights Act prevents states from dismantling a district that

provides African-American voters an opportunity to elect

their candidate of choice merely because it is impossible to

draw a district in which African-Americans constitute an

absolute mathematical majority of the population. Assuming

that all other factors relevant to a finding of vote dilution

under Thornburg v. Gingles are present, if minority voters

have demonstrated the ability to elect their candidate of

choice in a district in which they are less than 50% of the

total population, then they have demonstrated that the failure

to draw such a district will unfairly dilute their voting

strength in violation of Section 2. In North Carolina, the

legislature’s ability to recognize minority voting strength in

state legislative districts that are less than 50% African-

American in population has been crucial. Such districts are

more consistent with other redistricting principles such as

greater geographic compactness and adherence to county

boundaries.

In amending Section 2 of the Voting Rights Act in

1982, Congress intended the analysis of vote dilution to be

based on the totality of the real world political circumstances

surrounding minority voters’ ability to participate in

elections. The Gingles threshold factors, and particularly the

assessment of whether a district provides voters a chance to

elect their candidate of choice, were never designed to

depend on a bright-line cut-off. In light of this Court’s

holding in Georgia v. Ashcroft, 539 U.S. 461 (2003), that

4

minority voters can elect candidates of their choice in

coalition districts where they are less than 50% of the

population by taking advantage of some level of white

crossover votes, it would be logically inconsistent and

counterfactual to hold that such districts cannot satisfy the

first prong of Gingles under Section 2 of the Voting Rights

Act.

ARGUMENT

I. SOUND REDISTRICTING PRINCIPLES ARE

BEST MET WHEN STATE LEGISLATURES

HAVE THE DISCRETION TO CREATE

DISTRICTS WITH DE FACTO MAJORITIES

OF BLACK VOTERS

There have been three waves of litigation over

redistricting plans drawn by the North Carolina General

Assembly in the past thirty years. Together they illustrate

how voters, legislators and the courts have sought to make

this state’s democratic institutions more representative. In

the first wave, following the 1980’s round of redistricting,

this Court held that using multi-member state legislative

districts that diluted the voting strength of minority voters

violated Section 2 of the Voting Rights Act as amended, 42

U.S.C. § 1973. Thornburg v. Gingles, 478 U.S. 30 (1986).

As a result, more African-American voters were able to elect

their candidates of choice to the North Carolina legislature,

although even today they cannot elect candidates in numbers

commensurate with their percentage of the state’s

population. ®

In the second wave of litigation, following the 1990's

round of redistricting, a series of opinions beginning with

Shaw v. Reno, 509 U.S. 630 (1993) and concluding with

Easley v. Cromartie, 532 U.S. 234 (2001) established that

the legislature cannot allow race to be the predominant factor

in the redistricting process and clarified what evidence

constitutes proof that race, not politics, pred-minantly

explains a redistricting plan’s boundaries. The Shaw line of

cases dealt with the state’s congressional districts, but it

applies with equal force to any redistricting plan. Following

the Shaw litigation, North Carolina’s congressional districts

were redrawn to be a more geographically compact.

The tkird wave of litigation, following the 2000

round of redistricting, resulted in a series of rulings by the

North Carolina Supreme Court delineating how the General

Assembly should reconcile federal constitutional and

statutory redistricting criteria with a state constitutional

requirement that state legislative districts incorporate whole

counties to the extent possible. See Stephenson v. Bartlett,

* in 1981 there were only three African-Americans among 120 members

of the North Carolina House of Representatives. Following the Gingles

litigation that number increased to thirteen. Pender County v. Bartlett,

No. 04-696 (Wake Co. Sup. Ct. Dec. 2, 2005), App. at 8. According to

the 2000 Census, African-Americans alone or in combination with one or

more other races are 22.1% of the State’s population, Census 2000

Summary File | (SF 1) 100-Percent Data, available at

http://factfinder.census.gov/serviet/QTTable?_bm=y&-

geo_id=04000US37&-qr_name=DEC_2000_ SFi_U_DP1&-

ds name=DEC_2000 SFl_U&- lang=en&- _sse=on., but they have

never elected more than !5% of the state house seats. Pender County v.

Bartlett, App. at 8. Similarly, the number of majority-black districts has

never reached 22% of thetotal number of districts. See Johnson v. De

Grandy, 512 U.S. 997, 1013-14 (1994) (explaining significance of this

type of proportionality). ‘

562 S.E.2d 377 (N.C. 2002) (Stephenson I) and Stephenson

v. Bartlett, $82 $.E.2d 247 (N.C. 2003) (Stephenson II). In

Stephenson I, the North Carolina Supreme Court set out in

great detail the constraints that federal and state law impose

on the General Assembly’s discretion to redraw legislative

district boundaries, including (i) the one-person, one-vote

requirement, (ii) compliance with the Voting Rights Acct, (iii)

equal protection requirements under the State constitution

which the court interpreted to prohibit the use of single-

member and multi-member districts in the same plan, and

(iv) strict adherence to the whole county provision (“WCP”’)

of the State constitution.’ /d., 562 S.E. 2d at 396-97.

The current state legislative districts are the

ultimately refined product of these three waves of

redistricting litigation. Today, North Carolina’s districts are

compact and respectful of county lines.'® Equally important,

the current plan does not undermine equal opportunity for

minority voters. Decision-makers in North Carolina have a

consensus understanding that the Voting Rights Act prohibits

the dismantling of effective minority districts when they can

* Indeed, one commentator has suggested that the Stephenson decisions

essentially and intentionally remove all discretion from the legislature in

drawing legislative districts. See Seth W. Whitaker, Stephenson v.

Bartlett and the Judicial Promotion of Electoral Competition, 91 VA. L.

REV. 203, 243 (2005) (noting that “the Stephenson decisions have the

practical effect of severely restricting the legislature's choices in

redistricting. The rules are often so specific that in many areas only one

district configuration is possible.... [I]n a very real sense much of post-

Stephenson legislative redistricting in North Carolina will be

mathematical, using technology to determine the maximum number of

county groupings and the boundaries within those groupings that traverse

the fewest internal county boundaries.”)

"© Maps of the current redistricting plans can be viewed at:

http://www.ncleg_net/GIS/Redistricting/District_Plans/Current_Plans.ht

mi.

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