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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0216%3A23

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2005

## Text

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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

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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

10

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).

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~~

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

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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.

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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.

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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

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“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

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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.

7

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0216%3A23. Public record. Not legal advice.