Thornburg v. Gingles

THORNBURG, ATTORNEY GENERAL OF NORTH

CAROLINA, GINGLES et et al. v. al. Argued December 1985 Decided June

No. 83-1968. and delivered BRENNAN,J., judgment of the Court announced III-B, IV-A, I, II, III-A, and respect to Parts with opinion of the Court Stevens, JJ., Blackmun, joined, an White, MARSHALL, and V, in which Blackmun, MARSHALL, III-C, and in which respect to Part opinion with IV-B, in which respect to Part Stevens, JJ., opinion an with joined, and p. 82. White, J., concurring opinion, post, filed a White, J., joined. Bur- in which concurring judgment, in the O’Connor, J., opinion filed an JJ., Rehnquist, joined, post, p. 83. Ste- J., and ger, and Powell C. part, dissenting concurring part and vens, J., opinion filed an Blackmun, JJ., post, p. 106. joined, Marshall which Attorney Thornburg, Carolina, of North Lacy General H. appellants. him the argued With on pro cause for se, McGuan, Heenan Leonard, Kathleen were Jerris briefs Legal Attorney Deputy for General Wallace, Jr., James Smiley Harrell, Assist- Norma S. B. Tiare Affairs, Attorneys General. ant argued for the United the cause Fried General

Solicitor urging him the With on reversal. curiae amicus States Deputy Reynolds Attorney and General Assistant were brief Cooper. Attorney General Assistant appel- argued the cause for LeVonne Chambers Julius Gingles appellees et al. for him the briefs on With lees. Guinier, Leslie J. Win- Schnapper, Lani C. Eric were N. Gumbiner, Robert Foster, Kenneth J. Allen ner. C. appel- Hunter, Jr., and Arthur J. Donaldson filed briefs for Eaglin lees et al.* judgment announced Court Justice Brennan opinion respect

and delivered the with to Parts Court opinion respect II, I, III-A, IV-A, an with III-B, V, III-C, Part which Justice Marshall, Justice Black- join, opinion respect mun, and Justice and an with Stevens joins. Part which Justice White IV-B, § requires This case that we construe for the first time Voting Rights 1965, Act of as amended June § specific question 42 U. S. C. 1973. The to be decided is three-judge whether the Court, District convened pursuant Eastern District of North Carolina to 28 U. S. C. 2284(a) § correctly and U. S. 1973c, C. held that the use legislative redistricting plan in a of multimember districts §2 legislative by five North Carolina districts violated im- pairing opportunity participate of black voters “to political process representatives and to elect of their choice.” §2(b), 96 Stat. 134.

I

BACKGROUND April Assembly In North Carolina General en- legislative redistricting plan acted a for the State’s Senate * Popeo George Daniel J. C. Smith filed a Washington brief for the Foundation as amicus curiae Legal urging reversal. Briefs of amici curiae urging affirmance were filed for the American Hill, by Cynthia Foundation, Inc., Maureen T. Liberties Union Civil et al. Thornton, McDonald, Laughlin Bradley; and Neil by for Common Cause Lake; T. William Lawyer’s Rights for the Committee for Civil Under Law Robertson, Jr., Redlich, Tyler, James Harold R. Norman by Wil- et al. Robinson, Parker, Rabinove, liam L. Frank R. Samuel and Richard T.

Foltin; Martin, Carolina, by Victor S. for James G. Governor of North Friedman; Harris, Jr., Services North Carolina David H. Legal by for Pierce; Perry, Taylor, M. Richard Susan and Julian Republican for the Hess; Roger Allan Moore and Michael A. by National Committee and for DeConcini et al. Walter J. Rockier. Dennis Senator

35 Appellees, Representatives. black citizens of and House of registered challenged vote, are seven North Carolina who single-member1 and six multimember2 dis- districts, one redistricting impaired alleging scheme black tricts, representatives ability of their choice in vi- to elect citizens’ Amendments to the and Fifteenth of the Fourteenth olation §2 Voting Rights and of States Constitution United Act.3 Congress brought appellees trial, suit, but before

After response § largely to this The amendment was amended 2. plurality opinion 446 55 Bolden, U. S. Mobile v. Court’s (1980), a viola- to establish that, had declared order which Amend- 2 Fifteenth or of the Fourteenth or tion either of prove electoral a contested voters must ments, by intentionally adopted state maintained mechanism was Congress discriminatory purpose. substan- for officials §2 tially could be clear that a violation to make revised discriminatory by showing to estab- proved effect alone and ap- legal test,” “results standard the the relevant lish as (1973), Regester, by 412 plied U. S. 755 v. this Court White Rep. supra. Bolden, S. before other federal courts and (hereinafter (1982) Rep.). p. S. 28 97-417, No. which consisted District No. challenged Senate 1 Appellees Counties, Hertford, Gates, Bertie, and Chowan Northampton,

whole of Martin, Halifax, Edgecombe Counties. Washington, parts of 2 Senate following multimember districts: challenged the Appellees members), House Counties —four (Mecklenburg 22 and Cabarrus No. (part members), No. 39 House (Mecklenburg County eight 36 No. — (Durham County members), No. Forsyth County House —three —five (Wake members), No. 8 and House County members), House No. —six members). (Wilson, Nash, Counties —four Edgecombe 1981, challenging the September action in Appellants initiated this history redistrieting. July Assembly’s Carolina General North opinion District Court’s greater detail recounted this action is 1984). (EDNC Edmisten, case, Gingles Supp. 350-358 590 F. v. plan in Assembly the 1981 revised the General here to note that It suffices plan. is the 1982 in this case plan that the issue April 1982 and reads as amended, 134, as 96 Stat. follows: Section “(a) prerequisite voting voting qualification No or to or practice, procedure imposed ap- standard, or shall be or by any political plied in manner State or subdivision a right abridgement in a denial or of the which results any to vote on citizen of the United States account guarantees in of the set color, race or or contravention (b). 4(f)(2), provided in in as subsection forth section (a) “(b) A is if, violation of subsection totality established based po- it shown circumstances, on the that the processes leading litical to or in the nomination election political equally open par- or subdivision are not to State ticipation by protected by members of class of citizens (a) opportunity in its less subsection that members have participate to in than other members of electorate political process representatives to elect of their protected choice. The extent to which members of a political have to class been elected office the State or may subdivision is one circumstance which be consid- nothing Provided, ered: That in this section establishes right protected to have members class elected equal proportion population.” numbers their to § at 42 Codified U. S. C. 1973. Judiciary majority Report

The Senate Committee accom- § panying 2 the bill that amended elaborates on the circum- might probative noting 2 stances be of a violation, following “typical factors”:4 any history

“1. the extent of officialdiscrimination political right or the state subdivision that touched the 4 of White analytical These factors derived from framework v. were Regester, (1973), U. S. developed by refined and the lower McKeithen, the Fifth Circuit in Zimmer v. courts, particular 485 F. (1973) (en banc), aff’d sub nom. Parish Board East Carroll School 2d curiam). (1976) Marshall, (per Rep., v. U. S. 636 S. n. 113. minority group register, vote, the members participate process; the democratic or otherwise in the elections of the “2. the extent which racially political polarized; subdivision is state or political the state “3. the extent to which or subdivision unusually large majority districts, has used election vote requirements, anti-single provisions, shot or other vot- ing practices procedures may oppor- enhance the tunity against minority group; for discrimination slating process, if “4. there is a candidate whether the minority group members of the have been denied access process; to that minority group

“5. extent to which members of the the political in the state or subdivision bear the effects of dis- employment education, crimination in such areas as and ability participate effec- health, which hinder their to tively political process; in the political campaigns have been characterized “6. whether appeals; racial overt or subtle minority group “7. the extent to which members of the public jurisdiction. in have been elected to office the proba- in factors that some cases have had “Additional part plaintiffs’ evidence to establish tive value violation are: significant responsiveness is a lack of on

“whether there particularized part elected officialsto the needs of minority group. the members of the policy underlying political sub- the state or “whether voting qualification, prerequisite use of such division’s procedure voting, practice or is tenuous.” standard, Rep., at 28-29. S. “totality applied District Court of the circum- 2(b) appellees’ statutory claim, test set forth in

stances” relying principally in and, on the factors outlined the Senate §2 redistricting Report, held that the scheme violated be- black in all it resulted the dilution of citizens’ votes cause light disputed In conclusion, districts. seven appellees’ Gingles did not reach constitutional claims. court (EDNC 1984). Supp. F. Edmisten, v. Preliminarily, the court found that black citizens consti- population registered-voter minority a distinct tuted challenged district. The court noted that at time each created, were were the multimember districts there concen- citizens within the boundaries of each that trations black sufficiently large contiguous to constitute effective were lying wholly voting majorities single-member districts of the multimember within the boundaries districts. With single-member respect challenged district, Senate Dis- No. the court also found that there existed a con- trict within its centration of black citizens boundaries within adjoining those of Senate District No. that was sufficient contiguity numbers and constitute an effective single-member majority in a district. The District Court proceeded following then to find that com- circumstances districting bined with the multimember scheme to result the dilution of black citizens’ votes. officially

First, the court found that North had Carolina against respect black citizens with to their discriminated its voting approximately 1900 exercise of the franchise from by employing poll at different times a lit- tax, a against voting,5 eracy prohibition (single-shot) test, a bullet voting has been (single-shot) Bullet described follows: “ at-large town of 600 whites and 400 blacks with an election [a] ‘Consider is able to cast four votes. to choose four council members. Each voter candidates, split Suppose eight white with the votes of whites there are candidate, with all the among approximately equally, them and one black each him and else. The result is that white candi- voting blacks for no one candidate receives 400 votes. about 300 votes and black date receives technique single-shot is called probably a seat. This The black has won minority group at-large a to win some voting. voting Single-shot enables if its a limited number candidates and if it concentrates vote behind seats designated plans6 seat for multimember districts. The court observed that even after the removal of direct barriers registration, poll literacy- to black voter such as the tax and registration relatively depressed; test, black voter remained only age-qualified in 1982 52.7% blacks statewide were registered registered. vote, whereas 66.7%of whites were depressed The District Court found these statewide levels of registration present disputed black voter be all of the part, districts and to be at least in traceable, to the historical pattern of statewide officialdiscrimination.

Second, the court found that historic discrimination edu- housing, employment, and cation, health services had re- sulted a lower for socioeconomic status North Carolina group blacks as a than whites. The for court concluded that gives special group this lower status both rise to interests ability participate effectively and hinders blacks’ in the political process representatives and to elect of their choice. voting procedures

Third, the court considered other may operate opportunity of to lessen the black voters to elect candidates of their It noted that North choice. Carolina has primary majority requirement for vote elections and, while acknowledging candidate that no black for election to the Assembly solely failed State had to win General because of requirement, concluded the court that it nonetheless presents continuing practical impediment opportu- to the nity to elect of black minorities candidates of their on the choice. The court also remarked fact that North Car- residency requirement olina does not have a subdistrict for Assembly elected from members of General multimember ” among a number City majority is divided the vote of the candidates.’ States, 156, 184, Rome v. (1980), S. n. 19 United quoting 446 U. United Rights, Voting Rights on Civil Act: Ten States Commission Years (1975). After, pp. 206-207 (or numbered) require schemes 6 Designated seat candidate for elec specific seats, can, run for tion in multimember districts to under cer g., See, City Rome, e. voting. circumstances, tain frustrate bullet of supra, at n. requirement offset found could to which court districts, experi- disadvantages voters often extent the some in ence multimember districts. in North candidates

Fourth, the court found that white voting along appeal- encouraged color lines Carolina have replete prejudice. ing It that the record noted to racial style examples appeals, ranging specific from of racial with furtive, to date from the blatant subtle and overt and campaign for in the States the 1984 a seat United to 1890’s appeals that the use racial court determined Senate. persists campaigns political in North Carolina to the present day its current effect is to lessen to some and that participate degree opportunity effec- of black citizens to processes tively political to elect candidates their choice. the extent which blacks have the court examined to

Fifth, both statewide and Carolina, elected to officein‘North been among things, challenged found, It other in the districts. only prior black been elected II, War one had World recognizing century. public in this While that “it office possible for elected to of- now black citizens be has become government in Carolina,” fice at all levels of state North comparison Supp., that, at the court found to white F. running office, candidates are candidates for same black probability disadvantage in relative of success.' at a terms of overall rate of black electoral success It also found that the percentage minimal in to the blacks has been relation example, population. from noted, For the court total state any given only time two-to-four to 1982 there were — Representatives is, blacks in the 120-member House only From House members were black. 1.6% 3.3% of any only time one or two to 1983 there were at one only is, to 4% in the State Senate—that 2% blacks 50-member By contrast, at the time of the were black. State Senators opinion, about 22.4% Court’s blacks constituted District population. the total state

41 respect century With to the success of black candi- Appendix opin- dates the districts, contested see also B to p. post, only ion, 82, the found court one black had been began. elected to House District 36—after this lawsuit Sim- only ilarly, one black had served the Senate from District 22, from 1975-1980. Before the 1982 election, a black was only (part elected twice the House from District 39 Forsyth County); in the 1982 contest two blacks were elected. Since black 1973 a citizen had been elected each (Durham 2-year County), term to the House from District 23 but no had black been elected to the Senate from Durham (Wake County. County), In House 21 District a black had been elected twice House, to the and another black served two terms the State Senate. No black had ever been by elected the House or Senate from the area covered person House District and 8,No. no black had ever been by elected the from the Senate area covered Senate Dis- trict No. acknowledge improved

The court did the success black in the in which 11 elections, candidates 1982 blacks were Representatives, including the House of elected to State the multimember blacks from districts issue here. How- pointed court out that ever, the the election was con- litigation. the ducted after commencement of this court sufficiently of the election found the circumstances ab- by black errational the success candidates too minimal long history complete to the and too recent relation de- opportunities support nial of conclusion that elective representatives opportunities to elect of their black voters’ impaired. not choice were

Finally, the extent to which court considered racially polarized. challenged Based districts was on by supple- presented expert witnesses, evidence statistical testimony lay degree witnesses, some mented to challenged districts exhibit severe court found that all of the voting. racially persistent polarized findings, court declared the contested Based on these plan redistricting portions en- violative of the 1982 pursuant conducting joined appellants elections to those from Attorney Appellants, portions plan. General appeal Court, took direct to this others, Carolina and North § respect pursuant with to five of the 1253, to 28 U. S. C. 21, 23, 36, Districts districts —House multimember argue, Appellants first, that the District 22. and Senate legally in de- utilized a incorrect standard District Court termining districts exhibit racial bloc whether contested §2. cognizable Second, is under to an extent that they court used an incorrect definition contend polarized voting erroneously racially and thus relied of probative polarized not of that was on statistical evidence they assigned voting. Third, maintain that the court wrong weight of some black candidates’ electoral to evidence argue Finally, they that the trial court erred in success. concluding multimember districts result black that these having opportunity than their counter- less white citizens repre- political process parts participate in and to elect jurisdiction, probable of their choice. We noted sentatives (1985), respect affirm with to all of U. 1064 and now S'. regard except House District 23. With to Dis- the districts judgment the District is reversed. trict Court

I—I 2 AND DILUTION THROUGH USE SECTION VOTE

OF MULTIMEMBER DISTRICTS § understanding way and of the which multi- An both impair ability operate can blacks’ to elect member districts prerequisite representatives their to an eval- choice appellants’ First, then, contentions. we review uation § legislative history in some detail. Sec- its amended explain appellees’ basis for claim of we the theoretical ond, dilution. vote

A SECTION AND ITS LEGISLATIVE HISTORY 2(a) prohibits political Subsection all States and subdi- imposing any voting qualifications visions from prereq- or voting, any practices, procedures uisites to or standards,' abridgment right which result the denial or to vote any protected citizen who is a member of a class of racial 2(b) language minorities. Subsection establishes that 2 “totality has been violated where the of circumstances” re- political processes leading veal that “the to nomination or equally open election . . participation by . are not mem- [protected class] bers of a ... in that its members have less opportunity than partici- other members of the electorate to pate political process representatives and to elect explaining their “[t]he choice.” While extent to which protected members of a class have been elected to office political the State or may subdivision is one circumstance which 2(b) evaluating alleged § be considered” in an violation, “nothing [§2] cautions right that in establishes a to have protected members equal of a class elected in numbers to proportion population.” their in the Report accompanied The Senate which the 1982 amend- §2 ments elaborates on the nature of violations and on the proof required to establish these violations.7 First and fore- Report dispositively rejects position most, the the of the plurality (1980), in Mobile v. Bolden, 446 U. 55S. which

7 urges The United give States this Court weight to little to the Senate Report, arguing represents that it compromise a among conflicting “fac tions,” and thus is somehow less authoritative than most Committee Re ports. Brief for United States as Amicus Curiae 8, 12, 24, n. n. 49. We persuaded legislative history are not that the 2 any amended contains thing to lead us to Report conclude that this Senate should be accorded weight. little repeatedly recognized We have that the authoritative legislative source for intent Reports lies the Committee on the bill. g., States, e. See, Garcia United 70, 76, v. (1984); 469 U. S. Zuber and n. 3 (1969). Allen, 168, v. 396 U. S. 186 practice required proof or mecha- the contested electoral that adopted the to discrimi- maintained with intent nism was or g., Rep., minority against at 2, e. S. 15- See, voters.8 nate repudiated principal rea- for three 27. The intent test was 16, “unnecessarily charges it because involves divisive sons—it part or officials entire commu- racism on the individual “inordinately proof places difficult” nities,” it an burden question.” plaintiffs, wrong Id., “asks at 36. and it on Report emphasizes repeatedly, question, “right” as the The challenged practice “as a of the or structure is whether result equal opportunity participate plaintiffs not an to do have processes political and to elect candidates of their 27, n. id., 118, 28. See also at Id., choice.”9 at question, a court must In to answer assess order practice impact on the contested structure or objective opportunities “on the basis of factors.” electoral specifies typi- Report The which Id., at 27. Senate factors §2 history voting- cally may claim: the be relevant political or subdivision; related discrimination the State political voting in of the extent to which the elections State Report §2 designed states that amended was restore Senate legal governed voting test” —the standard discrimination “results (1980). Bolden, prior our v. 446 U. S. 55 cases decision Mobile Rep., Report pre-Bolden cases 15-16. The notes that such as S. McKeithen, (1973), and v. F. Regester, v. S. 755 Zimmer White U. (CA5 that, 1973), prevail by showing plaintiffs could under 2d circumstances, challenged procedure totality election law or had denying protected equal participate an chance to the effect of test,” plaintiffs not process. required Under the “results are the electoral challenged designed electoral law or structure was demonstrate Rep., discriminatory purpose. S. at 16. or maintained for practices procedures “voting that and 9 The Committee found Senate discriminatory perpetuate past purposeful the effects that have results of (footnote omitted). Id., Report As at the Senate discrimination.” notes, only purpose Voting Rights the Act was “‘not to correct an the of discrimination, history denying Negroes right reg the active the of vote, but to deal with the accumulation of discrimination.’” ister and also (1965) (remarks Javits)). Id., (quoting Cong. at 5 of Sen. Rec. racially polarized; is subdivision the extent to which the State political voting practices proce- or subdivision has used or opportunity dures that tend to enhance the for discrimina- against minority group, unusually large tion the such as elec- majority requirements, prohibitions tion districts, vote against voting; bullet the exclusion of members the mi- nority group slating processes; from candidate the extent to minority group past which members bear the effects dis- employment, crimination areas education, such as ability participate effectively health, which hinder their political process; appeals use of overt or subtle racial political campaigns; and the extent to which members of minority group public been have elected to office jurisdiction. supra, Id., at 28-29; see also at 36-37. The Report demonstrating also that espouses Report

Although flexible, a fact- the Senate §2 violations, it limits the circumstances test for intensive ways. may proved §2 in three be which violations under may at-large elections, not devices, such electoral First, per 2. Plaintiffs must demon- se violative considered be totality the circumstances, de- the that, under strate process. unequal Id., to the electoral access result vices allegedly conjunction dilutive elec- an Second, 16. at representation proportional lack of and the mechanism toral re- Ibid. Third, a violation. not establish alone does voting; bloc racial not assume existence test does sults prove plaintiffs Id., it. must

B THE THROUGH USE OF DILUTION VOTE DISTRICTS MULTIMEMBER legislative employ Appellees decision to contend that single-member, in the districts multimember, rather than by submerging jurisdictions votes dilutes their contested ability majority,11 impairing to their thus a white them representatives choice.12 of their elect by group voting strength may be caused racial Dilution of they an in which constitute ineffective dispersal of blacks into districts of blacks districts where minority of voters or from the concentration into Wildgen, Pruning majority. Engstrom & they excessive constitute an Test of Racial Empirical An of the Existence Thorns from Thicket: (1977) (hereinafter Eng- Q. Gerrymandering, 2 465-466 Legis. Stud. Right Derfner, Racial Discrimination and Wildgen). See also strom & (hereinafter Derfner); Parker, (1973) F. Vote, 523, 553 L. Rev. Vand. (hereinafter Legislative Reapportionment Gerrymandering and Racial 1984)(hereinafter (Davidson ed., Parker), Minority Vote Dilution 86-100 Dilution). Minority Vote plaintiffs in which the opinion in this is one The claim we address represent ability elect the prove alleged attempted that their a multimember elec impaired the selection of choice was atives of their permits, §2 whether no occasion consider We have toral structure. brought by to, pertain does, claim it what standards should if majority sufficiently large compact to constitute not group, that is §2 law, is that a certain electoral The essence of a claim practice, and or interacts with social historical con structure enjoyed by inequality opportunities in an ditions to cause represent preferred elect and voters to their black white recognized long that multimember This Court has atives. “ ‘operate may at-large schemes to mini and districts voting strength [minorities in] of racial mize or cancel out the voting population.”’13 Richardson, 384 Burns v. U. S. district, alleging of a multimember that the use district single-member ability impairs to elections. its influence whether the have no occasion to consider standards We note also that we operate to respondents’ that multimember districts di- apply to claim we groups minority large that are cohesive geographically lute the vote of single-member majorities in districts and that are enough constitute to districts, challenged of the multimember within the boundaries contained claims, such as a fully sorts of vote dilution claim pertinent other are minority large geographically and cohesive alleging splitting of a that the single-member districts resulted more multimember between two or minority vote. the dilution 13 widespread agreement with this conclusion. are Commentators Discriminatory At-Large of See, Berry Dye, Effects Elec g., The e. & (hereinafter (1979) Berry Dye); & Blacksher L. 85 tions, 7 Fla. U. Rev. St. City Bolden, v. Menefee, Mobile 34 Has Reynolds From v. Sims & of (hereinafter Menefee); (1982) Bonapfel, Minority & 1 Blacksher tings L. J. Problem, 10 The Dilution Ga. L. Rev. Challenges At-Large Elections: (hereinafter Butler, (1976) Statutory and Bonapfel); Constitutional 353 Right of Dilution and the Value Challenges Structures: to Election (hereinafter (1982) Butler); Carpeneti, Legisla Vote, 42 La. L. Rev. 851 Representation, Districts and Fair 120 Multimember Apportionment: tive (hereinafter (1972) Carpeneti); Korbel, Davidson & L. Rev. 666 U. Pa. Group Representation, Minority Minority Vote At-Large and Elections Grofman, Single-Member Plurality 65; Derfner; Alternatives to B. Dilution (hereinafter Grofman, Alternatives), Empirical Issues Legal and Districts: (B. Groftnan, Lijphart, 107 R. Redistricting Issues Representation and 1982) (hereinafter eds., Representation and McKay, H. H. Scarrow & Separation Issues); Hartman, Vote Dilution and Racial Redistricting (1982); Jewell, Consequences The Powers, L. Rev. 689 50 Wash. Geo. Districting, Representation Redistricting Single- and Multimember Jewell); Jones, (1982) (hereinafter Impact of Local Election 129 Issues (1976); Q. Aff. 345 Karnig, 11 Urb. Representation, Systems on Political 48 (1966)(quoting Dorsey, 88

73, Fortson v. 379 433, U. S. 439 (1965)). Rogers Lodge, (1982); See also v. S. U. Regester, White v. at S., 765; U. v. Chavis, Whitcomb (1971). type U. S. The theoretical basis for this impairment minority majority is that where voters consistently prefer majority, by different candidates, the vir superiority, regularly tue its numerical will defeat the g., See, choices voters.14 e. Grofman, Alterna Representation Redistricting tives, Issues 113-114. at-large Multimember districts and schemes, election how per rights. se ever, are not violative voters’ Rep., Rogers Lodge, supra, Regester, at 16. S. Cf. v. at 617; supra, supra, Minority 765; Whitcomb, at 142. voters districting who contend that the of multimember form vio § prove 2 lates must that the use of a multimember electoral operates ability structure to minimize or out cancel their preferred g., Rep., elect their See, candidates. e. S. at 16. many Report of While or all the factors listed in the Senate may through a be relevant claim vote of dilution submer gence conjunction districts, multimember unless there a following circumstances, use of multimember dis generally impede ability minority tricts not will voters representatives succinctly, to elect of their choice.15 Stated City Representation, Black Resources and Council 41 (1979); J. Pol. 134 Karnig, Representation Councils, Black City on 12 Q. (1976); Urb. Aff. 223 Parker 87-88. only “[vloting

14 Not does along deprive minority racial lines” voters of preferred representative circumstances, their in these it also “allows those ignore [minority] elected political interests without fear conse Rogers S., quences,” Lodge, 623, v. at leaving minority 458 U. effec See, tively unrepresented. Grofman, g., Representatives e. Should Be Typical Constituents?, Representation of Their Redistricting Issues 97; 108. Parker 15 political a process by § 2, Under “functional” view of the mandated 30, 120, Rep., important S. n. Report bearing at the most Senate factors on §2 challenges to multimember are the minority districts “extent to which group public jurisdiction” members have been elected to office in the voting the “extent to which political the elections of the state or sub-

49 usually majority voting defeat must be able to candi a bloc geographically supported by politically in cohesive, dates minority group. Bonapfel Menefee 355; Blacksher & sular Minority Carpeneti Vote 903; 696-699; Davidson, 34; Butler (hereinafter Davidson), Minority An Dilution: Overview 446 Bolden, 4; Grofman, Alternatives Cf. Dilution Vote (“It dissenting) is obvious J., n. 3 S., 105, U. (Marshall, factors, Id., racially polarized.” present, If the other 28-29. division is discrimination, past appeals use lingering effects such as devices which en- campaigns, and the use electoral racial bias election districts when substantial white effects of multimember hance the dilutive voting majority vote example antibullet laws and voting exists —for bloc to, of, not essential voter’s supportive but requirements, are claim. important to Report factors are more recognizing In some Senate others, effectu claims than the Court district vote dilution multimember minority group mem Congress. It is obvious that unless the intent of ates representatives difficulty electing of their experience bers substantial choice, impairs mechanism they challenged electoral prove cannot 2(b). And, ability where the contested electoral struc “to elect.” their district, agree that in the and courts commentators is a multimember ture ability it cannot be said that white bloc significant absence of representatives is inferior to that chosen voters to elect their Fla., County, F. See, g., Escambia e. McMillan v. voters. of white Comm’n, (CA5 1984); Marengo County 1037, 1043 States v. 2d United denied, (CA11), 469 U. S. appeal dism’d and cert. F. 2d (CA5 Sides, 1978), denied, 446 cert. (1984); 571 F. 2d Nevett v. 161, 170 (1980); County, Supp. 594 F. v. Johnson U. S. 951 Halifax 469; Menefee; (EDNC Engstrom Wildgen & Parker 1984); Blacksher & voting not difficulty electing white bloc are if and Consequently, that the multimember struc minority not established voters have proved, Mi ability candidates. preferred elect their with their to interferes ture they still suffer social and economic may prove that nority be able to voters employed discrimination, appeals to racial bias are past that effects seat, but required is to win a majority a vote campaigns, and that election inability by to the elect caused a substantial they have not demonstrated history primacy of the By recognizing the district. use of a multimember voting, the Court of racial bloc minority electoral success and extent of and they may be plaintiffs prove § 2 their claim before simply requires that awarded relief. greater degree minority the

that homogeneous the to which the electoral is greater degree

and insular and the the that along majority-minority greater bloc occurs the lines, minority’s voting power will the extent which be the is by districting”). diluted multimember These circumstances necessary preconditions op are for multimember districts to minority impair ability represent erate voters’ to elect following atives their choice for the the First, reasons. minority group must able to that it be demonstrate is suffi ciently large geographically compact and ma constitute a jority single-member in a If it not, district.16 is as would substantially integrated be in a district, the case the multi- responsible member the district cannot be for minor form ity inability Rogers, elect voters’ its candidates.17 Cf. appellees allege In this case that within each contested multimember minority group sufficiently compact district there exists a that large is single-member case, to constitute a In district. a different kind of ex for ample gerrymander ease, plaintiffs a might allege minority group that the sufficiently large compact that single-member is to constitute a district split has been between two or more or single-member multimember dis tricts, diluting potential with the effect minority strength of vote. minority group making challenge The reason that a show, such a must matter, sufficiently as a threshold it is large geographically com pact majority a in single-member to constitute district is this: mi Unless nority possess voters potential representatives to elect in the absence challenged practice, they or structure cannot claim to have been injured practice. single-member gen structure or district is erally the appropriate against standard minority group which to measure potential political to elect because is the repre it smallest unit from which Thus, spread sentatives are if minority group evenly elected. district, if, throughout a although geographically multimember compact, minority group is so small relation to surrounding popula white majority single-member district, tion that it could not constitute minority they these voters cannot maintain that would have been able to representatives elect of their choice in the absence of the multimember explained: structure. electoral As two commentators have injured by elections], [that “To demonstrate at-large voters are sufficiently politically voters must be concentrated and cohe- also, & S., 51-56, 58; at 616. See Blacksher Menefee U. Bonapfel Carpeneti 696; Jewell Sec 4; Davidson 355; minority group politi it must be able show that ond, the minority cally group politically If is not co the cohesive. of a multimember it cannot be said that selection hesive, minority group distinctive in structure thwarts electoral 58-60, and n. 51-55, 344; Blacksher & Menefee terests. minority Carpeneti Third, must be 696-697; Davidson 4. majority sufficiently votes that the white able demonstrate special circum to enable it—in the absence bloc running unopposed, minority such as the candidate stances, minority’s usually at n. see, 57, and defeat infra, 26— g., preferred Menefee 51, e. Blacksher & See, candidate. supra, Rogers, Whitcomb, 403 616-617; at 53, 56-57, 60. Cf. County, Fla., 748 S., 158-159; McMillan v. Escambia U. at (CA5 1984). establishing cir In this last 2d F. minority group that submer cumstance, the demonstrates ability impedes gence its district in a white multimember representatives. elect its chosen predictability

Finally, of the ma- that the usual we observe distinguishes jority’s dilution from the structural success Davis Bandemer, election. Cf. v. mere loss of an occasional J.); (opinion post, Bolden, 131-133, 139-140 at White, dissenting); supra, Whitcomb, J., n. (Marshall, supra, 57, n. 333; also Blacksher & Menefee at 153. See Gerrymandering Geometry Geography: Racial Note, (1984) Voting Rights n. 189, 200, L. J. Act, Yale (hereinafter Geography). Geometry Note, mem- districting plan in districts which putative would result that a sive voters, majority of whose minority racial would constitute bers by at-large voting. If choices are fact defeated clear electoral jurisdiction, substantially throughout the integrated are residences voters’ minority-supported be blamed for the defeat at-large district cannot protect racial only standard] thus would [This .... candidates districting plan; it would proximately caused votes from diminution ” representation. Blacksher & proportional minorities not assure racial added). (footnotes omitted; emphasis Menefee 55-56 I—I 1—1 RACIALLY POLARIZED VOTING Having legal general principles stated relevant §2 through claims that has been violated the use of multi- arguments appellants districts, member we turn addressing racially of the States United as amicus curiae voting.18 polarized we describe First, the District Court’s racially polarized voting. treatment of Next, we consider appellants’ claim the District Court an used incorrect legal voting standard to determine whether racial bloc in the sufficiently cognizable contested districts was severe to be §2 Finally, appellants’ an element of a claim. we consider employed contention trial court an incorrect defini- racially polarized voting erroneously tion and thus relied probative on statistical evidence that not was of racial bloc voting.

A THE DISTRICT COURT’S TREATMENT OF RACIALLY

POLARIZED VOTING by investigation The conducted the District Court into the question voting testimony lay of racial bloc credited some principally pre- witnesses, but relied on statistical evidence by appellees’ expert particular sented witnesses, that of- fered Dr. Bernard Grofman. Dr. Grofman collected and Assembly primary gen- evaluated from 53 data General involving eral elections black candidacies. These elections period years were held over of three different election challenged originally in the six multimember districts.19 subjected complementary Dr. Grofman the data to two meth- analysis analysis ods case and bivariate eco- —extreme “racially polarized voting” The terms voting” and “racial bloc are used interchangeably throughout opinion. reapportionment plan The 1982 essentially left undisturbed the 1971 plan original for five of the six contested multimember districts. House slightly District 39 alone was Appellees modified. Brief for logical regression analysis20 order to determine whether —in in their these districts differed blacks and whites yielded analytic techniques data concern- These behavior. including voting patterns ing races, the two estimates percentages for of each race who voted members black candidates. took the form initial consideration of these data court’s any three-part inquiry: did the data reveal correlation be

of a of candi and the selection certain tween the race the voter significant; statistically correlation dates; was the revealed voting patterns the black and white and was difference “substantively significant”? Court found The District preferred generally different candidates blacks and whites racially voting in districts to be found the basis, on that and, expert opin accepted Dr. court Grofman’s correlated.21 The the race of the voter and between ion that correlation statistically sign candidates was choice of certain the voter’s terminology, Finally, adopting Dr. see Grofman’s ificant.22 for in the literature both methods standard Court found 20 TheDistrict 367, 28, 368, n. voting. Supp., 590 F. analysis racially polarized Di McDonald, Quantitative in Vote Evidence Engstrom & n. See also Voting, 17 Urb. Participation and Polarized Litigation: Political lution Noviello, “Totality (Summer 1985); Grofman, Migalski, & Law. 369 Voting 2 of Extension of the the 1982 Test” Section of Circumstances 1985) Policy (Apr. 7 & 199 Perspective, Law A Rights Act: Social Science Noviello). (hereinafter Migalski, Grofman, & 21 polarization” to this correla “racial describe the term The court used polarization” exists definition —“racial adopted Dr. Grofman’s tion. It of the voter relationship between race [the] “a there is consistent where votes,” differently, 160, put it Tr. or to way in which voter We, Id., differently.” at 203. voters vote and white “black voters where “racially voting. See polarized” of “racial bloc” too, adopt this definition infra, at 55-58. relationships positive and that reflected that the data The court found 368, Supp., at chance. 590 F. happen did not the correlations Litigation Conley, Statistical Evidence D. Barnes J. also & n. 30. See Proceedings, Colum. Fisher, Legal (1986); Regression Multiple 32-34 Grofman, (1980); Migalski, & Noviello 206. 716-720 L. Rev. Tr. the court in all found that but of the 53 elections23 degree voting racial bloc was “so marked to be sub stantively significant, in the sense that in the results depending upon dividual election been would have different among only only been whether it had held the white voters or Supp., the black voters.” F. at 368. reported findings,

The court also its both in tabulated nu- high percentage and in form, merical form written that a regularly supported black voters black candidates and that extremely most white voters were reluctant vote for black candidates. The court then considered the relevance to the legally significant voting existence of white bloc of the fact that black candidates have won some elections. It deter- special mined that in most instances, circumstances, such as incumbency opposition, and lack of rather than diminution usually voting, severe white bloc for accounted these can- suggested didates’ success. The court also that black voters’ significant reliance on bullet was a factor their suc- cessful efforts elect candidates their choice. Based on all of the evidence before trial it, court concluded that experienced racially polarized voting each of the districts “in persistent degree.” a Id., and severe at 367.

B THE OF DEGREE BLOC THAT VOTING IS LEGALLY §2

SIGNIFICANT UNDER 1 Appellants’ Arguments argue North Carolina and the United States that the test voting pat- used District Court to determine whether disputed racially polarized terns are districts to an §2 cognizable extent under lead to that are in- will results congressional consistent with intent. main- North Carolina 23 exceptions The two were State in Districts 21 the 1982 House elections Supp., 368, and 23. 590 F. at n. 31.

55 significant racially legally tains the court considered polarized voting “less to occur whenever than 50% a ballot for black candidate.” Brief for white voters cast polarized Appellants Appellants argue racially 36. also only always legally significant voting it in the is when results Id., at 39-40. defeat of black candidates. single hand, on other isolates a line States,

The United opinion complete it as the the court’s and identifies court’s According States, to the District test. United Court significant adopted legally a under which racial bloc standard “ voting ‘the in- is deemed to exist whenever results upon depending been different dividual election would have among only only it had held the white voters or whether been ” Brief for in the United States as the black voters election.’ 368). Supp., (quoting F. at 29 590 We read Amicus Curiae differently. opinion the District Court

2 Significant Voting Legally Racial Bloc The Standard for Report that the “extent states to which The Senate political racially is of the state subdivision the elections polarized,” Rep., at relevant to vote dilution claim. 29, S. is agree vot and commentators that racial bloc Further, courts g., ing key See, of vote dilution claim. e. element County, F. 2d, Fla., 1043; 748 United States Escambia (CA11), County Marengo 731 F. 2d 1566 Comm’n, 1546, v. (1984); appeal denied, 469 U. S. Nevett cert. dism’d and (CA5 1978), cert. denied, 571 F. 2d Sides, v. Supp. (1980); County, F. v. U. Johnson S. Halifax (EDNC 1984); Engstrom & Menefee; Blacksher & 161, 170 Geometry Geogra Wildgen, 107;Note, Parker 469; explain phy below, the extent of bloc Because, we minority’s ability necessary voting a to demonstrate impaired representatives preferred varies accord elect its degree voting ing of bloc circumstances, factual to several significance legal vary of will constitutes threshold which possible it is to state Nonetheless, to district. from district proceed principles general to do so. and we some racially po- inquiring purpose into the existence The minority group voting to ascertain whether is twofold: larized politically unit and to de- cohesive members constitute sufficiently usually as a bloc whites vote termine whether supra, minority’s preferred at candidates. See defeat experi- given question district whether Thus, the 48-51. racially polarized voting requires legally significant dis- ences minority voting practices. A inquiries and white into crete minority group significant showing mem- number of that a way prov- usually candidates is one vote for the same bers necessary ing political dilution vote cohesiveness conse- 59-60, 344, and, and n. Blacksher & Menefee claim, minority voting quently, within the context bloc establishes normally general, will a white bloc vote And, of 2. plus strength support white the combined defeat legally significant white rises to the level of “crossover” votes voting. at 60. The amount of white bloc Id., bloc Rep., generally at cancel,” 28; “minimize or S. that can ability rep- Regester, voters’ to elect S., 412 U. black vary from district choice, however, their will resentatives of including according the na- factors, to a number of to district pres- allegedly mechanism; electoral dilutive ture potentially devices, dilutive electoral ence or absence of other designated posts, majority requirements, such as vote voting; percentage regis- against prohibitions bullet who are members of the tered voters the district group; and, districts, multimember district; the size of open in the and the number of candidates the number of seats g., Jones, 874-876; 5; Butler Davidson See, field.24 e. Systems Repre- Impact on Black Political Local Election (1976); Commis- Aff. United States sentation, Q. Urb. illustrative, comprehensive. factors is not This list of Voting Rights Rights, on Civil Act: Unfulfilled sion (1981). 38-41 Goals power through political vote dilution is dis

Because loss of inability particular election, from mere to win a tinct the voting pattern Whitcomb, S., a of racial bloc U. period probative of a a of time is more that extends over experiences legally significant polariza that a claim district single a & than are results of election.25 Blacksher tion (“Ra Geometry Geography 61; n. 66 Note, Menefee single polarization a be seen as an attribute not of cial should polity over The con election, but rather of a viewed time. analysis necessarily temporal historical be is and the cern minority evil is subordination of cause the to be avoided the politics, groups in the defeat individuals American not contests”). particular in a reason, Also for this electoral usually polarized, are be district where elections shown present racially polarized voting is not in one or fact that necessarily negate does the con few individual elections not a experiences legally significant bloc that clusion the district minority voting. of a candidate Furthermore, success necessarily prove particular that the does not a election voting polarized experience election; that district did not opponent, special such the absence an circumstances, voting, may explain incumbency, the utilization of bullet polarized contest.26 electoral success a voting apparent, degree that of racial bloc As must be §2 cognizable vote claim will element of a dilution is as an studied order to determine 25 Thenumber of elections must be vary pertinent according to circumstances. polarized will whether minor of elections which the important circumstance is number One never group has ity group sponsored has candidates. Where candidate, rely sponsor on other factors courts must been able Similarly, process. where prove unequal access to electoral tend to just recently, fact that sponsor minority group begun to candidates has few are available for examination only or a elections from one statistics dilution claim. not foreclose a vote does illustrative, not exclusive. special circumstances is 26 Thislist variety vary according of factual circumstances. Conse- to a simple quently, for the existence doctrinal test there is no voting. significant legally However, the fore- racial bloc provide principles going general with substan- courts should determining guidance evidence that black in whether tial generally prefer rises to the candidates different white voters legal significance under 2. level of by the District Court Utilized Standard employ simplistic clearly not did The District Court legally significant by North identified standard Carolina— voting than of the white vot- whenever less 50% occurs bloc Appel- Brief for for the black candidate. ers cast a ballot although did utilize the the District Court And, lants 36. significance”that the United States measure of “substantive election would results of the individual to it—“‘the ascribes depending on whether it had been held different have been only only among voters,’” the black Brief the white voters or (quoting Amicus 590 F. Curiae for United States 368) Supp., did not reach its ultimate conclu- court —the degree voting present in each dis- of racial bloc sion that the through legally significant mechanical reliance on this trict is phrase court did not the standard for While the standard.27 exactly legally significant do, as we a fair racial bloc analysis reading opinion reveals that the court’s of the court’s proper legal standard. conforms to our view concerning support findings black for District Court’s at issue in the five multimember districts candidates black significant.” actually employ “legally the term trial court did not 27 The significance” as Dr. have used “substantive Grofman At times it seems to enough to result the selection of did, polarization severe to describe times, At how racially separate electorates. other candidates different “substantively significant” to refer to its ulti ever, used the term the court racially polarized voting in these districts is suffi mate determination § 2 relevant to a claim. ciently severe to be clearly political here establish the cohesiveness of vot- black apparent As is from the ers. District Court’s tabulated find- opinion, ings, reproduced Appendix post, p. A to 80, black support overwhelming voters’ for black candidates was al- every primary In 5 of 16 elections, most election. all but support ranged between black for black candidates 71% support general elections, 92%; and black for black ranged 87% and Democratic candidates between 96%. sharp findings strong support In black for contrast its that a substantial candidates, black District Court found rarely, majority if ever, voters would vote for white primary support In for elections, white black candidate. ranged 50%, in the black candidates between 8% and ranged general it and 49%. ibid. elections between 28% See average, on of white that, The court also determined 81.7%. primary any did for voters not vote black candidate general In the white voters almost elections, elections. always in ranked black candidates either last or next to last except heavily in areas field, multicandidate Democratic consistently black candidates last white voters ranked where among among last all Democrats, if not last or next to approximately that The court further observed candidates. in not vote for black candidates two-thirds of white voters did general had Dem- even after the candidate won the elections, Republican primary was vote for and choice ocratic for no one.28 any stating did vote for black candi 28 In that 81.7% of white voters not white did not primary in the election and that two-thirds of voters dates elections, aggre general in the District Court vote for black candidates districts, for challenged apparently data all six multimember gated from vote caused inquiry into the existence of dilution reporting. ease of specific. is When con by submergence in a multimember district district case, single must sidering separate dilution claims in a courts several vote concluding districts in rely aggregated challenged from all the on data not case, In the racially in each district. instant polarized exists that findings however, and from the it from the trial court’s tabulated is clear it, 2-10, relied on App., Exs. that court that were before exhibits expressly that the the District Court did not state While percentage for candidates who refused to vote black whites in course of would, events, in districts the usual the contested minority’s that conclu candidates, in the defeat of the result findings apparent the court’s factual and both from sion analysis. exception with the First, from the rest of its findings 77, see the trial court’s 23, infra, House District clearly only enjoyed minimal that black voters have and show electing representatives sporadic of their choice. success opinion, post, p. Appendix B Second, where See closely elections, won the court examined black candidates concluding elections before the circumstances of those negate evidence, not other de the success of these blacks did in each district, rived from all of the elections studied racially polarized voting legally significant exists each dis example, the court took account of the benefits trict. For essentially incumbency running unopposed conferred on as well as of the candidates,29 some of the successful black specific concluding that were to each individual district that each data racially polarized experienced legally significant voting. district incumbency example, the court found that aided a successful black For primary District 22. The candidate the 1978 Senate court also noted 23, gained 1978, that in House District a black candidate who election in general ran uncontested in the 1978 election and in both primary general Republican in 1980. In 1982 there was no elections opposition, interpreted general trial court that the a fact the to mean elec Moreover, practical purposes unopposed. pri tion was for all the 1982 only seats, mary, there were two white candidates for three so that one condition, Even under black candidate had to succeed. the court re marked, 63% of white voters still refused to vote for the black incumbent— 21, In was the choice of 90% of the blacks. House District where a who delegation to the six-member in 1980and the court black won election primaries approximately found that in the relevant 60% to 70% of white candidate, voters did not vote for approximately black whereas 80% of additionally although winning The court observed that blacks did. election, historically primary Democratic this district is tantamount declined to vote for the Democratic black candidate 55% of whites general election.

very preference assigned different order of blacks and whites reaching legally sig black its candidates,30 conclusion that polarization nificant racial exists each district. approach,

We conclude that the District Court’s which years in district, tested data derived from three election each strongly supported revealed that and which blacks black can- to the didates, while, detriment, black candidates’ usual rarely satisfactorily did, whites addresses each facet of the proper legal standard.

C EVIDENCE OF RACIALLY POLARIZED VOTING

Appellants’ Argument North Carolina and the United States also contest the evi- upon finding the District dence which Court relied racially voting patterns challenged po- in the districts were They argue “racially polarized voting” larized. that the term voting patterns must, law, as a matter of refer to for which They principal cause is race. contend that the District legally racially polar- utilized a incorrect definition of Court analyses voting by relying ized on bivariate statistical which merely a correlation the race of the demonstrated between support candidates, for certain voter and the level of voter primary prove did not that race was the determi- but which According appellants voters’ choices. and the nant of only multiple regression analysis, which can States, United might explain which of other variables also vot- take account “party age, religion, affiliation, income[,] choices, ers’ such as campaign incumbency, expenditures,” education, Brief for primary noted that in the 1982 held in House District out The court by eight, the black candidate was ranked first black of a field of successful voters, by Similarly, that the but seventh whites. the court found two delegation won seats in the five-member from House District 39 blacks who voters, by eighth first and black but seventh and ranked second were white voters. by

Appellants . . name, “media measured iden- 42, cost,. use particular from tification, or distance that candidate lived precinct,” 30, Curiae Brief for States as Amicus United primary prove was of can that race the determinant 57, n. behavior.31 voter appellants it and the States believe that United

Whether race or the race that must be the the voter’s candidate’s primary unclear; indeed, of the voter’s choice is determinant Age, catalogs suggest both.32 of relevant variables their religion, the income, and education seem most relevant to incumbency, campaign expenditures, name identifica voter; pertinent party candidate; the and media use are and tion, refer In could both the voter the candidate. affiliation § purposes disagree: legal For con case, 2, we either racially polarized voting incorporates cept of neither causa simply It that the race of voters cor tion nor intent. means or candidates; relates with the selection of certain candidate (or mi it to the situation where different races is, that refers nority groups) language vote blocs for different candidates. Migalski, Grofman, Noviello 203. we & As demonstrate racially polarized appellants’ theory would infra, goals Congress sought it thwart achieve when prevent performing 2 and would courts amended from analysis political process, Rep., 30, “functional” S. practical “searching ‘past 119, n. evaluation plaintiffs pri race Appellants argue that must establish that was the showing mary part prima determinant of voter behavior of their facie suggests plaintiffs make out a polarized voting; the United States merely showing a race by facie correlation and the se prima case between candidates, able to rebut but defendants should be lection certain showing principal race causes of voters’ that factors other than were reject arguments. both choices. We on United States The Fifth Circuit cases which North Carolina County Lee Branch rely position equally ambiguous. for their are See (1984); Lubbock, v. 730 F. v. 748 F. 2d Jones Opelika, NAACP (1984) J., (Higginbotham, concurring). 2d (footnote omitted), reality/” present id., at 30 mandated and Report. by the Senate Inquiry to Irrelevant Section

Causation reject appellants’ argument that ra- The first reason we voting patterns cially polarized voting to that are refers patterns voting way by race, rather than to that caused some merely voter, race the that with the is the are correlated of differently no voters vote have rele- reasons black and white § By inquiry contrast, 2. the correla- to central of vance the the of certain candi- of voter and selection tion between race inquiry. to that dates crucial Report § make clear the

Both 2 itself and the Senate §2 quéstion whether the of a in a claim is use con- critical practice structure results members of electoral tested opportunity protected group having other than members less political process participate in the and to of the electorate Rep., g., representatives e. at See, choice. S. of their elect supra, explained, 47-48, 118, As we 27, 29, n. 28, may impair ability of blacks to multimember districts representatives choice where blacks vote suffi- of their elect ciently preferred their to elect candi- a bloc as be able

as majority, single-member district and where dates a black sufficiently usually majority bloc as a defeat votes white by It is blacks. be- the candidates chosen difference by blacks and whites—not rea- choices made tween the having results blacks less for that difference—that sons preferred represent- opportunity their to elect than whites Consequently, conclude under the “results we atives. § only between race of voter and the correlation of test” not the causes of the candidates, correla- certain selection of tion, matters. why inquiry reasons black

The irrelevance differently supports, by itself, our white voters vote racially polarized theory voting. rejection appellants’ equally theory other serious flaws their contains However, below, attention. As demonstrate that merit further we irrelevant variables distorts equation addition of §2 under that are incorrect indisputably results yields the Senate Report. Voter Behavior Determinant Primary

Race Voter contend that the legal and the United States Appellants not to refers “racially polarized voting” concept race, with the voter’s correlated merely that are patterns that are determined primarily by to voting patterns but race, rather voter’s than the voter’s other socioeconomic characteristics. it with this is that argument ignores

The first problem insular racial and ethnic fact that members of geographically characteristics, share socioeconomic such groups frequently amount of level, status, education, as income employment conditions, and living religion, language, and other housing e. g., See, (Minority forth. Butler 902 “members’ group so a concerns, ones, are ... function including political shared and as such are ... As a status, largely involuntary. of group concerned, are for with brutal- group example, police blacks etc., because these ity, housing, unemployment, substandard S. Verba disproportionately upon group”); fall problems (1972) (“Socioeco- 151-152 N. America Nie, Participation & related to race. Blacks in Ameri- closely nomic status ... is whites, to be lower-status than society likely jobs can are incomes”). education, to have less and to have lower Where are race or ethnic not shared, group only such characteristics or it also functions as a short- place origin, denotes color hand notation for common social and economic characteris- definition of is racially polarized voting tics. Appellants’ where shared characteristics are caus- even more pernicious related to race or to achieve ethnicity. opportunity ally income, and for is often in- example, status high employment racial or ethnic dis- fluenced or absence of by presence A definition of which racially polarized voting crimination. voting black black bloc does not exist when voters’ holds that strongly by most influenced of certain candidates is choice —jobs menial that the have low incomes and the fact voters jobs the reason those voters have menial and when most of past present racial incomes is attributable to dis- low Report’s to the Senate instruction crimination-runs counter past searching practical conduct evaluation present reality, Rep., pur- with the S. interferes Voting negative pose Rights Act to eliminate the ef- of the past opportunities on the fects of discrimination electoral Id., at minorities. racially appellants’ theory polar-

Furthermore, under voting, even uncontrovertible evidence that candidates ized always by strongly preferred black voters are defeated majority would be for failure to bloc prove white dismissed polarization popu- and white

racial whenever the black be terms other socioeconomic lations could described characteristics. racially illustrate, mixed, assume a urban multimember

To possess same in which blacks and whites socio- district this case at- characteristics record economic County, part whites Halifax to blacks and tributes blacks in this 2. The annual mean income for Senate District community lives $10,465, and 47.8% black district poverty. over than black adults More half—51.5%—of only eighth-grade age less. Just have an education of 25 in homes; reside their own 48.9% half of black citizens over all black units. almost third of house- And, in rental live only In 12.6% the contrast, a car. are without holds poverty line. Whites in the district live below whites enjoy are better White residents $19,042. a mean income of age only 25.6% of whites over than educated blacks— only eighth-grade less. Further- education or an have only only units, and live rental 26.2% of whites more, App., with no vehicle available. live in households 10.2% 2, blacks this is the case Senate District Ex-44. As hypothetical have been able to elect a urban district never representative of choice. their racially theory polarized voting,

According appellants’ hypothetical proof in this district that black and white voters pre- regularly that the choose candidates and blacks’ different rejected pro- regularly as not lose could be ferred candidates rej voting. racial for the ection would bative of bloc basis principally candidate, certain not be- be that blacks chose a principally their because this candidate race, cause of but represented the interests of residents because of who, best particularly government- low are interested incomes, their generally who services; health and welfare are subsidized job training poorly educated, thus share an interest and greater programs; than the com- are, who to a extent white munity, issues; rent control favor concerned with and who expenditures. major public transportation Similarly, whites candidate, be found to have voted for a different not would principally primarily race, because of their because that but represented who, the interests of candidate best residents prop- and to levels, to their education and income their due erty ownership, gentrification, favor and vehicle low residen- expenditures property for street taxes, tial extensive highway improvements. Congress employ have that courts this could not intended voting. leads to First, definition racial bloc definition adopted are with effects test results that inconsistent Report’s Congress when it amended and with the Senate politi- take a view admonition courts “functional” Rep. searching process, S. n. and conduct cal reality. racially practical A Id., evaluation of at 30. test for polarized denies the fact that race and socioeco- closely permits nei- nomiccharacteristics are often correlated practical reality analysis evaluation of nor a ther functional contrary Congress’ adopt- And, of vote dilution. intent ing appellants’ proposed test,” the “results definition could inability in the critical result voters establish a though claim, dilution races en- element of a vote even both voting, gage generations id,., “monolithic” bloc representative black voters have been unable to elect a of of their choice. appellants’ interpretation “racially polarized of

Second, voting” pro- an tension their creates irreconcilable between posed of characteristics the bloc treatment socioeconomic Report’s “the Senate statement that context minority group . . extent which members of the . bear employ- education, effects of discrimination such areas as §2 may Id., at 29. ment and health” be relevant to a claim. support logic legislative his- can find no either or We appellants’ posi- tory for the anomalous conclusion to which Congress hand, that intended, tion leads—that on the one proof group predominately poor, unedu- that a unhealthy tending a factor cated, and should be considered § prove Congress intended, that on violation; but proof that the same socioeconomiccharac- hand, other greatly teristics black voters’ choice of candidates influence destroy ability these to establish one of the should voters’ important of a vote dilution claim. most elements Primary Determinant

Race Candidate Behavior Voter suggestion North and the United States’ Carolina’s reject racially polarized voting means that voters select principally race is the candidate’s the basis of candidates on misplaced. also language functional understand- and a

First, both ing phenomenon mandate the conclu- of vote dilution per is irrelevant to racial race of candidate se sion that the 2(b) voting analysis. that a violation is states Section bloc protected if that members it can be shown established opportunity group than other members “have less representatives choice.” . . their to . elect the electorate added.) majority (Emphasis vot- Because both preferred as their of their own race select members ers often frequently representatives, that a be the case black it will is a white candidate blacks, choice of while candidate is the the Editor from Chandler Cf. Letter to choice of whites. 1985). (Fall Perspectives Indeed, 17 New Davidson, tendency preferred illustrate that of this case facts —blacks preferred Thus, candidates. white candidates, whites black may District convenience, we and the Court matter of as a representative preferred voters as the of black to the refer representative preferred and to the candidate” “black Nonetheless, the fact the “white candidate.” voters as white candidate is often correlated and race of that race of voter §2 inquiry. directly pertinent §2, it is to a Under not is representative chosen candidate as the the status of the group, particular candidate, race that is racial not the important. through understanding of how vote dilution submer-

An majority gence leads to the same conclusion. in a white works minority group submergence claim that is The essence of they prefer whom could elect certain candidates members challenged electoral interaction of the law it not for the were majority significant that as a a white votes or structure with explained in Part Thus, as we for different candidates. bloc supra, to a of racial bloc is relevant the existence III, ways. voting by in two Bloc blacks tends claim vote dilution community politically prove cohesive, that that the black they prefer certain candidates whom it shows that blacks is, majority single-member, black district. Bloc in a could elect majority prove voting by will tends to blacks a white representatives generally to elect of their choice. be unable Clearly, only voter, not the race of the candi- the race of g., analysis. e. Black- See, to vote dilution date, is relevant Representatives Grofman, 59-60; Menefee Should sher & Redistricting Representation Typical?, Issues 98; be Geography Geometry Note, vot-

Second, racially appellants’ suggestion polarized whites for white refers to where vote ing voting patterns candidates because members their own race they prefer blacks, or are hostile to where opposed voting patterns for candidates because the white candi- whites vote white more on their utilized more media campaigns, dates spent and thus name than coverage, enjoyed greater recognition candidates, another, the black fails for reason. independent This like the that the race of voter argument, argument ballot, the voter’s is in- must be the determinant of primary §of 2 and render mean- consistent with the would purposes factor that addresses the impact the Senate ingless Report level of minority low socioeconomic status on group’s politi- cal participation. in intended that the Act eradicate Voting Rights

Congress the vesti in that exist due to political opportunities equalities 5, at Rep., effects of discrimination. S. gial past purposeful (1981). 97-227, No. 31 Both this Court 40; Rep. p. H. R. have that political partici and other federal courts recognized minorities tends to be where depressed pation by such suffer effects of discrimination prior members group education, opportunities, inferior poor employment g., Regester, 412 e. White v. S., U. See, low incomes. County, Supervisors Kirksey Hinds Board v. 768-769; Miss., (CA5) (en banc), denied, cert. 2d 145-146 139, 554 F. (1977). Nie, N. Participa also S. Verba & S. 968 See U. (1972). The acknowl Report in Senate tion America that “the extent to which and instructs tendency edges . bear the . . effects of dis group members education, employment in such areas as crimination ability effectively hinder their health, participate which (footnote at 29 is a omitted), S. process,” Rep., in the political unequal bemay probative opportunity par factor which and to elect political process representatives. ticipate have further that can commentators recognized Courts and must more order win money generally spend didates than in a single-member a multimember district election g., Barnes, e. Graves 704, v. 343 F. See, Supp. district. sub (WD 1972), and rev’d in part part Tex. aff’d 720-721 Regester, supra. nom. White v. 88; Dye& Davidson Berry & in an Set- Slating Groups At-Large Fraga, Nonpartisan Derfner n. 122-123; 126; Vote Dilution Minority ting, Councils, Black on 131; Representation City Karnig, Jewell (1976). If, edu- Aff. because inferior Q. Urb. blacks earn less poor employment opportunities, cation and able to the candidates whites, they will not be provide than level of financial choice with same support of their Thus, losses can theirs. electoral candi- provide by whites the black well be attrib- community may dates preferred fact their to the white part opponents outspent utable in this But, instance, fact is the economic that, them. have discrimination combined with the multi- prior effects to afford less member electoral structure blacks opportunity in the to elect political process than whites to participate It of their choice. would be both anomalous representatives to hold the that, and inconsistent with intent on congressional effects of discrimination hinder hand, one the which past in the to participate political process blacks’ to tend ability 2 violation, that, §a while on the other hand holding prove these effects of discrimination deter whites past where same blacks, cannot make out a ele- voting from for blacks crucial County, Escambia Accord, ment of a vote dilution claim. (“‘[T]he at white 2d, 748 F. 1043 failure the blacks solicit ”) effects of discrimination’ may by votes be caused the past County Comm’n, v. Dallas United States 2d 739 F. (quoting County Marengo States v. (CA11 1984)); United 1536 Comm’n, 2d, 731 F. at 1567.

5 Animosity Primary as Determinant Racial Behavior

Voter racially the polarized that Finally, reject suggestion we is which caused voting by refers to white bloc only voting

71 hostility white racial voters’ toward black candidates.33 To accept theory goals sought Congress this the would frustrate by repudiating to achieve the intent test Mobile v. Bolden, (1980), prevent minority 446 U. S. 55 and would voters who clearly opportunity represent have been an denied elect establishing atives of their choice from a critical element vote dilution claim. Congress rejected amending requirement

In §2, an § 2 supra, plaintiffs Bolden, nounced this Court in that prove discriminatory govern must intent of local state or adopting maintaining challenged ments in electoral Appellants’ suggestion discriminatory mechanism.34 that the proved intent of individual white voters must be order to very Congress make a 2 out claim must fail for reasons rejected respect governmental test intent with bodies. Engstrom, See The Reincarnation of the Intent Standard: Judges At-Large Cases, Federal Election L. 28 How. J. (1985). Report states that one Senate reason the Senate Com- the intent mittee abandoned test was that “the Committee persuasive testimony . . . intent heard test is unnec- essarily charges divisive because it involves of racism on the Rep., part of individual officialsor entire communities.” S. testimony 36. The found the of Dr. at Committee Arthur S. true, recognized previously, hostility may It as have that racial we voting. Organizations Carey, racial v. often fuel bloc United Jewish But, (1977);Rogers Lodge, S., U. S. v. U. ex we decision, motivation of the voter no plain actual has relevance suggest dilution claim. This is not to that racial bloc vote race, neutral; obviously correlates with is race because voter behavior remembered, though, as it is not. It should be one commentator ob has served, absence racial animus is but one “[t]he element of race Note, Geography neutrality.” Geometry rejected argument Report The that the “on Senate words account any §2(a), requirement race,” purposeful contained create dis Congress patently is that has “[I]t [clear] crimination. used the words Act to mean ‘with respect ‘on of race or color’ in the to’ or account race color, any required purpose of racial and not to connote discrimination.” 27-28, Rep., n. 109. S.

Flemming, Commission on of the United Chairman States persuasive. Rights, particularly He testified: Civil [litigators representing test] “‘[Under ex- an intent explore the motivations of will have to minorities cluded mayors, and other citizens. members, council individual question mo- their decisions were would be whether The inqui- Such invidious racial considerations. tivated any threatening destroy only ex- divisive, can be ries community. isting progress It is the in a intent racial necessary it test, that would make not the results test, judicial as racist order to obtain to brand individuals Ibid, omitted). (footnote relief.’” harmony progress grave which The threat to racial requiring proof Congress perceived from that racism caused challenged adoption maintenance of a electoral mecha- degree greater proposed present re- to a much nism animosity plaintiffs quirement racial demonstrate that voting patterns. intent Under old determined white only plaintiffs might by proving that a limited succeed test, under the new intent racist; number of elected officialswere plaintiffs required prove that most of the would be test judicial community is racist order to obtain relief. white racially requirement. imagine a more divisive It is difficultto Congress rejected test A reason the old intent was second “inordinately placed an difficult burden” that most cases it §2 plaintiffs. test Ibid. new intent would be on prove equally, In more, if burdensome. order not hostility specific white voters’ factor—racial —determined necessary that other it would be demonstrate ballots, potentially as socioeconomic factors, relevant causal such expenditures, do not correlate and candidate characteristics animosity As racial with white behavior. better than explained: commentator has one

“Many the[se] independent . variables . . would be impossible operational- all but for a social scientist independent ize as interval-level variables for use in regression multiple equation, step-wise on a whether basis or not. To conduct such an extensive statistical analysis implies, prohibi- moreover, can become tively expensive.

“Compared proving to this sort of effort, discrimina- tory adoption at-large system intent of an election simple inexpensive.” McCrary, is both Discrimina- tory Continuing “Purpose” Intent: The Relevance of Ev- idence Lawsuits, Vote-Dilution L. J. 463, How. (1985)(footnote omitted). dispositive Report

The final and most reason the Senate repudiated wrong the old intent was test that it “asks the question.” Rep., §2 S. at 36. Amended asks instead process equal “whether minorities have access to the of elect- ing representatives.” their Ibid.

Focusing discriminatory on intent voters, rather wrong question. than the also voters, behavior asks the §2 theory All that under matters and under a functional explanations. behavior, vote dilution is voter not its More- explained supra, requiring proof over, as we have in detail, actually that racial considerations caused voter behavior will contrary congressional intent —in situations where result — functionally totally black has been excluded political process §2 from the be will unable to establish a Report’s concerning violation. Senate remark the old pertinent requirement intent test thus new test: The separate finding . . . a “court make a . . . of intent, accepting proof after of the factors involved the White Regester, analysis [v. seriously 755] [would] 412 U. S. . . . prospects eradicating remaining clou[d] the instances of racial in American Id., discrimination elections.” at 37. adopt requirement. decline such a We therefore

Summary racially legal concept po- that the sum, In we would hold voting, refers dilution, to of vote as it relates claims larized only the race of vot- a correlation between to the existence of Plaintiffs need certain candidates. and the selection of ers prima prove prove to facie intent order not causation or may not and defendants rebut racial bloc case of of causation or intent. case evidence with

hH > BLACK LEGAL OF SOME THE SIGNIFICANCE CANDIDATES’ SUCCESS

A maintain that the the United States North Carolina and proper weight to accord the the suc District Court failed to challenged in the districts. some black candidates cess of they point out, districts, these achieved Black residents of Assembly improved representation elect in the 1982 General They 23 that blacks in House District have also note ion.35 consistently representation enjoyed proportional since 1973 occasionally en in the other districts have and that blacks representation.36 nearly proportional joyed This electoral 35 Assembly the 1982 General election are The relevant results of 21, popula up make 21.8% of the House District which blacks follows. tion, six-person delegation. House District black to the House elected one population, elected one black to 23, in constitute 36.3% the which blacks 36, three-person delegation. In House District where blacks House eight- one black was elected population, 26.5% of the constitute 39, population In 25.1% the delegation. House District where member delegation. In black, were elected to the five-member Sen two blacks 22, population, no black blacks constitute 24.3% the ate District where in 1982. was elected to Senate that, points substantially out under identical The United States supra, challenged plan, n. House District to the see predecessor District 39 delegation six-member House a black its elected conclusively, appellants success demonstrates and the United argue, States that blacks those districts do not have “less opportunity partici than other members of electorate to pate political process representatives in the elect 1973(b). § Essentially, appel their choice.” U. C.S. lants gains proportional the United contend that if a racial States nearly proportional representation in a single precludes, election, that fact alone as a matter law, § finding 2a violation. 2(b) provides “[t]he

Section which extent to members protected of a class have been elected to office... is one cir- 1973(b). may cumstance which be S. considered.” U. C. Report The Senate Committee also identifies the extent pertinent which candidates have succeeded as fac- Rep., Report expressly S. tor. at 29. However, the Senate minority that states ‘necessarily “the election of few candidates does not possibility foreclose the of dilution of black the ” noting possibility vote,’ did, that if it “the exists the majority might by manipulating [§2] citizens evade the elec- minority quot- of a 29, tion ‘safe’ candidate.” Id., 115, at n. (CA5 1973) ing McKeithen, Zimmer v. 485 2d 1307 1297, F. (en banc), aff’d sub East Parish nom. Carroll School Board curiam). (1976) (per v. 424 Marshall, U. S. 636 The Senate “‘require independent decided, instead, Committee to an Rep., 29, consideration the at n. of record.’” S. 115. The Report emphasizes question Senate also that the whether political open’ depends processes ‘equally upon “the are searching practical ‘past present evaluation of the and real- (footnote omitted). ity.’” language 30 Id., Thus, at of § history legislative plainly proof its and demonstrate that that some been not candidates have elected does §2 foreclose a claim. conducting “independent its

Moreover, consideration “searching ‘past practical record” its and evaluation the 1976, delegation a black its elected to five-member and Senate District had a black Senator between 1975 and 1980. appropriately reality/” present could the District Court surrounding recent black of the circumstances take account significance appellees’ deciding its success electoral Report particular, clear, id., makes In as Senate claim. properly the fact that court could notice n. markedly in the 1982 elec success increased electoral black had after the instant lawsuit election that occurred tion—an properly to what extent “the could consider filed—and been have] very litigation [might pendency worked one of this advantage candidates the form unusual for black time political support organized white leaders concerned districting.”37 Supp., single-member F. at 367, forestall n. 27. legislative history prohibited

Nothing in the statute its viewing some caution black candidates’ from with the court deciding election, on and from the basis the 1982 success weight greater to accord all the circumstances relevant lack of success over course several to blacks’ relative Consequently, we hold that District recent elections. refusing law, a matter of treat the err, did not Court dispositive have succeeded as fact that some black candidates districting gen- appellees’ 2 claim. Where multimember erally it vote, cannot be de- works dilute sporadically serendipitously ground it fended on the minority voters. benefits (“[W]e 2d, McKeithen, 485 Zimmer v. F. cannot en See also necessarily polls of black at the the view that the success candidates

dorse might, possibility of dilution of black vote. Such success forecloses who, occasion, politicians, apprehending to the work of be attributable on expedient, support politically be cam of a black candidate would that the might his Or such success be attributable to paign to insure election. namely support.motivated by different that elec political considerations — challenges thwart successful to electoral of a black candidate will tion situation, In could be grounds. either candidate schemes on dilution political in despite the relative backwardness black residents elected district”). the electoral

B ignoring sig- The District Court err, however, did experi- nificance the sustained success black voters have enced in House District 23. In that six district, last elec- proportional representation tions have resulted in for black persistent proportional representation residents. This is in- appellees’ allegation ability consistent with that the of black representatives voters District 23 to elect of their choice equal enjoyed by majority. not to that the white may possible In plaintiffs some it situations, be for to accurately demonstrate that such sustained success does not minority group’s ability preferred repr reflect to elect its appellees Appel- esentatives,38 but have not done so here. presented relating lees evidence to black electoral success they utterly, though, elections; the last three failed to offer any explanation pre for the success black candidates in the Consequently, vious three elections. we believe that the ignoring District Court erred, law, as matter of the sus enjoyed tained success black voters have in House District respect 23, and with would reverse to that District.

V ULTIMATE DETERMINATION OF VOTE DILUTION

Finally, appellants dispute and the United Dis- States trict Court’s ultimate conclusion that the multimember dis- tricting deprived at issue in case scheme black voters opportunity equal participate political process an representatives their and to elect choice.

A As an initial both North matter, Carolina and the United contend that the District States Court’s ultimate conclusion challenged operate that the multimember districts dilute We no occasion this types special have case decide what circum satisfactorily stances could demonstrate that sustained success does not ac curately minority’s ability preferred representatives. reflect the elect its 78 question of law and fact sub- a mixed citizens’ votes

black pro- support appeal. In of their ject novo review on to de they rely Corp. primarily on Bose posed review, of standard (1984), 466 485 a S., Inc., U. S. Union U. Consumers v. a constitu- that, as matter of we reconfirmed in which case independent appellate of ev- review there must be law, tional Appellants in defamation cases. of “actual malice” idence finding argue that because of vote States the United and § requires application 2 of a rule amended dilution under legal, particular rather of facts it constitutes set of law a Reply Appellants for 7; Brief factual, determination. than as Amicus Curiae 18-19. Neither for States Brief United precedents appellants cite our several nor United States finding treated the ultimate of vote dilution in which have we clearly-erroneous subject question to the standard of fact as 52(a). Lodge, g., Rogers S.,U. See, e. v. 458 Rule City 446 States, Rome v. U. S. 622-627; United (1980); Regester, S., at 765-770. Cf. Ander- U. White v. (1985). City, S. Bessemer U.

son v. Regester, supra, noted that the District Court had In we minority voters in two its multimember conclusion based opportunity participate in the had less in Texas districts totality majority political process on the of the than voters and stated circumstances repre- findings, inclined overturn these are not

“we senting history intensely they and an do a blend design impact appraisal . . of the . multi- local reality, light past present in the member district political at 769-770. Id., and otherwise.” Regester approval, Quoting passage ex- we from with question Rogers Lodge, supra, pressly that the held in v. system at-large maintained for dis- election was an whether criminatory purposes subsidiary include issues, which diluting system had the effect of whether that 52(a)’s questions Rule fact, under reviewable vote, were clearly-erroneous S., 458 U. at 622-623. Simi- standard. larly, City that the States, Rome v. we declared United of question a certain structures had “discrimi- whether electoral diluting natory vote, the in the of was effect,” sense clearly-erroneous subject question 446 review. of fact to at 183. S.,U. clearly-erroneous of the test

We reaffirm our view that 52(a) appellate appropriate standard for review Rule is the § finding As amended its both and of a of vote dilution. evaluating statutory history legislative claim clear, make districting, through the trial court is to con of vote dilution “totality determine, and to of the circumstances” sider the ‘past searching “upon practical of the and evaluation based (footnote omitted), reality/” Rep., present whether at 30 S. “ equally open politicalprocess voters. ‘This is upon dependent peculiarly the facts each determination ” supra, quoting Rogers, Sides, Nevett 571 F. 621, at v. case,’ (CA5 1978), intensely ap requires “an local 2d impact” design praisal of the contested electoral of the §2 622. The fact that amended S., 458 U. at mechanisms. legal history provide legislative which a standards and its apply whether in order determine to the facts court must not alter the standard of review. 2 has been violated does 52(a) ap an explained “does not inhibit Bose, Rule As we including power law, those pellate errors court’s correct finding may fact, law and or a mixed infect a so-called misunderstanding predicated finding on a of the that is of fact citing Pullman- governing S., U. law.” 466 rule of (1982); 273, 287 Inwood Lab S. Swint, v. U. Standard Laboratories, 844, 855, Inc., U. S. oratories, Inc. v. Ives (1982). clearly-erroneous application Thus, 15n. preserves findings of vote dilution ultimate standard familiarity particular in with the trial court’s of the benefit endangering reality of law. digenous political the rule without B Court in District this case considered carefully the to- tality each circumstances and found that in district ra- cially of official polarized voting; discrimination in legacy voting matters, education, housing, employment, health services; and the persistence to racial campaign appeals acted concert prejudice with multimember districting scheme to impair ability of insular geographically and po- litically groups cohesive black voters to participate equally in the and to political process elect candidates of their choice. It found that the success a black few candidates have enjoyed in these districts is too too recent, limited, and, with regard elections, 1982 too aberrational, perhaps to disprove its conclusion. House Excepting District with respect which District Court committed error, see supra, legal 77, we affirm the District Court’s We judgment. cannot say Court, District of local composed judges who are well with acquainted political State, realities clearly erred use of a concluding multimember elec- toral structure has caused black voters in the districts other than House District 23 to have less than opportunity white voters to representatives elect of their choice. judgment District Court is part reversed in part.

Affirmed A APPENDIX TO OPINION OF BRENNAN, J. of Votes Cast Black Percentages White Voters for Black Candidates the Five Contested Districts

Senate District 22 Primary General White Black White Black 1980 1978 1982 (Alexander) (Alexander) (Polk) CO CO -0 ^[00] IT- ^[00] CO GO n/a 41 33 n/a 94 94

81 21 District House General Primary Black White Black White n/a n/a (Blue) 21 76 1978 44 90 (Blue) 31 81 1980 45 91 (Blue) 82 39 1982 23 District House Primary General Black Black White White 1978 Senate 17 n/a n/a (Repub.)

Barns 1978 House

Clement Spaulding o rH t-H (£) ^[0005] 05(M 72 ^ t- co ¿3 oo House Spaulding £* 4? ¿3 O os House p3 s ffl Clement Csj A M t- oo Spaulding Oí CO 05(MO CO District House Primary General Black Black White White 92 28 22 71 (Maxwell) 1980 42 92 79 50 (Berry) 1982 29 88 71 (Richardson) 39 1982 39 District House General Primary Black White Black White House 1978

Kennedy, Norman Ross Sumter (Repub.) H. 8 29 00 n/a n/a ÍD ^[05] 17 53 n/a n/a 33 32 n/a n/a 93 25 82 39

House District General Primary Black Black White White 1980 House

Kennedy, Norman A. M1 oo o CO05 ^[0005] P CO p~ P «© ^[05] p 1980 Senate

Small t-1 05I—1 ^[5] p~ P p 1982 House

Hauser Kennedy, A. CO 05 CO cn OO-Cl OO o ^ ^[05] —U oo co 590 F. at 369-371. Supp., B

APPENDIX BRENNAN, TO OPINION OF J. Black Candidates Elected From 7 Originally

Contested Districts District Prior to

(No. Seats) 1972 1974 1972 1976 1978 1980 1982 (4) House 8 0000000 (6) 21

House 0 0 0 0 0 1 1 (3) 23 0 House 111111 (8) House 36 0 0 0 1 0 0 0 (5) House 39 0 0 1 1 0 2 0 (2)2 Senate 0000000 (4) 0 1 1

Senate See Brief for table between Appellees, printed 9; 8 and pages 93-94. App. White,

Justice concurring. I Parts join I, II, III-A, III-B, IV-A, and V of the Court’s with Justice opinion agree as to opinion Brennan’s Part I disagree IV-B. with Part III-C of Justice Bren- nan’s opinion. Brennan states in Part III-C that the crucial

Justice voting identifying polarized race voter is the of the factor the candidate is irrelevant. that the race of Under and majority polarized voting if the of white voters there test, is majority blacks, of the candidates than the vote for different agree. regardless I do not the race of the candidates. Suppose eight-member district that is 60% an multimember being geographically located black, and the blacks 40% white single-member could be black districts so that two safe Suppose white and two further that there are six drawn. running against Re- six black Democrats white two black publicans. there would be test, Justice Brennan’s Under Republi- § likely polarized 2 if all the and a violation including elected, two are and 80% blacks, the cans, predominantly I vote Democratic. black areas blacks single-member in a it that would also be a violation take there enough the blacks vote with 60% but black, district is choice candidate who not the whites to elect black poli- interest-group majority black This is voters. hedging against discrimination. a rule racial tics rather than amending Congress in mind in had I that this is what doubt § quite with discussion did, 2 as it and it seems odds (1971). Fur- 149-160 Chavis, v. 403 U. S. Whitcomb no to draw case, on facts of this there is need thermore, did not District Court distinction. The the voter/candidate my except, re- view, with correct result and reached the spect District Justice, Jus- O’Connor, whom The Chief with

Justice Rehnquist concurring join, and Justice Powell, tice judgment. § upon 2 of the Vot we are called construe case, In this Rights ing Amended 29, 1982. as amended June Act of employed codify in Whit the “results” test is intended to Regester, (1971), White v. 403 U. S. Chavis, comb v. (1973), pro reject test the “intent” S. U. plurality opinion pounded Bolden, v. in Mobile (1980). (1982) Rep. pp. S. 55 No. 97-417, U. (hereinafter S. 27-28 Rep.). required

S. Whereas Bolden members minority alleged impairment voting of a racial strength who of their prove challenged system to that the electoral was discriminatory purpose created or maintained with a and led discriminatory “plain- results, to under test, the results may discriminatory tiffs proving any choose to establish results without ” discriminatory purpose. Rep., kind of S. at 28. § unequivocally time, At same however, disclaims the right proportional representation. creation of a to This dis- compromise claimer was essential to the that resulted (additional passage of the id., amendment. See at 193-194 Dole). views Sen. construing compromise legislation,

In we must make every Congress effort to be faithful balance struck. easy Congress This is not an task. We know that intended § brought to allow vote dilution claims to be under we but Congress right also know that did not intend to create representation proportional minority for voters. an There is Congress inherent tension between what wished to do and any theory what it to avoid, wished because of vote dilution necessarily rely must to some extent on a measure of minor- ity voting strength propor- that makes some reference minority group large. tion between the and the electorate at important aspects In several addition, of the “results” test had received little attention this Court’s or in cases Appeals employing decisions of the Courts of on test Congress Specifically, which relied. id., also See at legal meaning given concepts to be to the of “racial bloc voting” “minority voting strength” largely had been left unaddressed the courts when was amended. attempts today. Court to resolve all these difficulties supplies voting First, the Court definitions of racial bloc minority voting strength apparently applicable that will be all cases will dictate structure of vote dilution litigation. adopts Second, the Court a test, based on the determining an success, electoral for when level sufficiently electoral scheme has diminished strength although the Third, constitute vote dilution. acknowledge expressly, it the combination Court does not minority voting strength and its test the Court’s definition right to vote dilution results in the creation of a a form for representation geographically proportional in favor of all minority groups large enough politically . to that are cohesive majorities if within one or more constitute concentrated single-member doing, In so the Court has disre- districts. by Congress garded amending 2 in the balance struck by apply the test as has failed to results described Court in Whitcomb and White. explain my disagreement in-

In order with the Court’s terpretation impact it §2, is useful illustrate districting types typically plans or of districts alternative minority group will be able have on the likelihood that prefers, ele- it and then out the critical elect candidates to set they emerge in dilution claim as the Court’s ments a vote opinion. by governed a coun- 1,000 voters that is

Consider a town representatives, in which 30% of voters are cil of four in are concentrated black, in which the black voters city as a bloc. It would section of the and tend vote one single-member possible in one districts, to draw four be overwhelming majority. an blacks would constitute of which electing in would be assured of this district The black voters any remaining representative choice, while black of their submerged large would be the other districts voters majorities. give minority group option would This white roughly proportional representation. usually

Alternatively, possible four be to draw it would single-member in two of voters con- districts which black majorities of 60%. The black much narrower about stituted voters these districts would often be able to elect the representative of their choice each of these two districts, supported but if even 20% of the black voters the candidate favored the white in those districts the candi- preferred by majority might dates of black voters lose. option depending par- This would, on the circumstances of a give minority group ticular election, sometimes more proportional representation, than but would increase the risk group roughly proportional that the would not achieve even representation. usually possible

It single- would also be to draw four member districts each of which black voters constituted minority. In the extreme case, black voters would consti- approxi- tute 30% of the voters in each district. Unless mately 30% of the white voters in this extreme case backed candidate, black voters in such a district would be unable to elect the candidate of their choice an election only they between unanimously sup- two candidates even if ported option him. This would make it difficult for black voters to elect significant candidates their choice even with support, impossible white support. and all but without such Finally, possible it represent- would be to elect all four single at-large atives election in which each voter could vote for four candidates. Under this scheme, white voters representatives could elect all the if even black voters turned large out only numbers and voted for one and one candi- only date. To if illustrate, four white candidates and ran, approximately equal support each received from white vot- ers, each would receive about votes, whereas black vot- any ers could cast no more than 300 votes for one candidate. eight If, on the hand, other white candidates and white ran, evenly, votes were distributed less so that the five least favored white candidates received fewer than 300votes while three others received 400 or more, it for would be feasible representative blacks to elect one with 300 even with- votes support. out substantial white If vot- even of the white 25% minority particular and black voters candidate, ers backed only candidate, for that the candidate would receive a voted victory total of 475 which would ensure unless white votes, eight on voters also concentrated their votes four remaining support so candidates, that each received show, As almost of white voters. these variations 70% at-large tendency an inherent or multimember district has submerge minority. group’s the votes of the The prospects heavily district for electoral success under such a variety depend turnout, on a of factors such as voter how spread, many evenly support is run, how white candidates support given or candidates much white to candidate how preferred by group, the extent to which mi- (which voting” nority engage in occurs when voters “bullet casting from all votes to avoid risk voters refrain their may they give voting for ranked choices their lower enough higher to defeat their ranked those candidates votes 5). n. choices, ante, 38-39, see principle varying between the There is no difference varying outlined above and the effects of the alternatives plans single-district multimember effects alternative districting way type and the The selected districts. powerful can have a effect on are drawn which district lines politi- geographically of a the likelihood that members cally minority group will be able to elect candidates cohesive of their choice. § speak

Although “vote I dilution,” terms of does not agree proof of vote dilution can establish with Court that phrase “vote dilution,” a violation of as amended. impermissible legal simply to the discrimi- refers sense, districting plan natory or other effect that a multimember voting operates minimize out or “to cancel when it has strength groups.” White, S., U. at 765. See of racial (1965). Dorsey, 433, 439 This defi- U. S. also Fortson v. very formidable difficulties. however, conceals some nition, group solely strength” “voting racial to be assessed of a Is the prospects or should success, to its for electoral with reference open political influence to the at other avenues of courts look minority voting strength group? is as- Insofar as racial success, how should undi- reference to electoral sessed with voting strength minority measured? How much of be luted strength necessary minority voting impairment an prove 2? What constitutes racial bloc a violation of weight given proved? is to be to evi- how is it What by minority success candidates of actual electoral dence voting? face of evidence of racial bloc question summarily: minority resolves the first The Court solely voting strength is to assessed terms of the minor- be ity group’s ability prefers. candidates it Ante, to elect approach, the 48-49, n. 15. Under this essence of vote di- single-member claim is that the has created lution State unacceptably impair minority multimember districts that group’s ability prefer. to elect the candidates its members particular

In order to evaluate a claim that a multimember single-member minority district or district has diluted the group’s voting strength degree §2, to a that violates how- necessary ever, it is also to construct a measure of “un- minority voting strength. “[T]he phrase [vote diluted” di- suggests respect lution] itself a norm with to which the fact may Mississippi Republican of dilution be ascertained.” (1984) Executive v. Brooks, Committee U. S. affirmance). dissenting summary J., from Put (Rehnquist, simply, system in order to decide whether an electoral has minority made it harder for voters to elect the candidates they prefer, a court must have an idea mind of how hard minority preferred it be for voters to elect “should” their acceptable system. candidates under an possible minority voting measures of Several “undiluted” strength suggest simply First, themselves. a court could guide: proportionality group use as its if the consti- given tuted 30% of the voters the court area, would re- gard group having potential to elect 30% representatives in Second, that area. a court could districting plan posit a “normal” “fair” some alternative many attempt calculate how candi- scheme and to electoral minority probably preferred by group would be dates seen, There as we have a are, elected under that scheme. single-member variety ways in even districts could which minority group present the with its drawn, be and each will might, array the court benefits; own of electoral risks and plans attempting range acceptable therefore, consider a minority voting strength by this to estimate “undiluted” attempt plan could to arrive at a Third, method. the court minority success, electoral that would maximize feasible degree predicted as its measure of “undi- use this success employ minority voting strength. If court luted” a were face hard choices about alternative, this third it would often truly minority An “maximize” electoral success. what would minority example above, which a is the scenario described completely group concentrated one safe district or could be among its members two districts each of which divided majority. precarious constitute a somewhat would ap- today adopted of the third has a variant The Court strength minority voting proach, means the undiluted wit, minority voting strength. explaining In maximum feasible first states claim, a vote dilution the Court the elements of minority group to demonstrate that it “the must be able that geographically compact sufficiently large constitute single-member majority If Ante, at 50. in a district.” cognizable minority group apparently has no claim not, representatives ability choice has elect the its that its minority group impaired.1 able Second, “the must be been ability minority group to con express to whether the 1 I no view as constitute a threshold majority single-member in a district should stitute a impairs the the use of multimember districts requirement for a claim that political processes and to participate in the ability of voters to plaintiffs in case Because the representatives of their choice. elect exists, I whether if it need not decide requirement, meet that indeed would signifi- politically cohesive,” is, that it is to show group supports proportion the same can- cant requires the minor- the Court Third, at 51. Ante, didates. majority votes ity group the white that to “demonstrate special sufficiently it—in the absence to enable as a bloc minority’s pre- —usually the to defeat . . . circumstances requirements are three Ibid. If these candidate.” ferred submergence minority group in that demonstrates “the met, ability impedes to elect its its multimember district a white minority say, representatives.” is to the Ibid. That chosen proved group in of 2. dilution violation has vote elements of a vote dilution The Court’s definition simple calculate minor- a court should and invariable: claim is minority group by assuming voting strength is ity the that single-member in which it consti- district a concentrated minority group voting majority. is not Where the a tutes large enough, politi- enough, geographically concentrated minority possible, enough cally for this to be cohesive minority group group’s meets these claim fails. Where representatives requirements, it could elect that hypothetical a which it constitutes district or districts note, however, artificiality dis- by § I of the Court’s imposed it is repre- minority group’s “ability to elect the that a between claims tinction ability to impaired and claims that “its choice” has been [its] sentatives of Ante, 46-47, n. 12. It is true impaired. has been elections” influence that majority single-member in a minority that could constitute a group a ability representatives ordinarily potential to elect without has the district majority minority could not constitute such a support, and that a white recognizes that when the candidates ordinarily not. But the Court does district, in a multimember by minority group are elected preferred candidates, support if was minority elected those even white group has reasoning, minority if a the same indispensable to these victories. On voting majority single- large enough to constitute group that is not support probably would be forthcom- can show that white member district that would enable the election of the district to an extent ing some such appear have prefer, group would its members candidates that, voting strength, of its it at least under this measure demonstrated candidates of its choice. be able to elect some would majority will serve as voting the measure of its undiluted strength. plan actually adopts Whatever the State must be assessed terms of the effect it has on this undiluted strength. single, If this is indeed the universal standard for evaluating minority voting strength undiluted for vote dilu- purposes, applicable tion the standard is whether what is challenged particular is a single- multimember district or a districting member scheme.

The Court’s statement of the elements of a vote dilution supplies claim question posed also an answer to another impairment above: how much of an of undiluted vot- ing strength necessary prove vote dilution. The Court requires minority group that satisfies the threshold re- quirements prove of size and cohesiveness to that it will usually many representatives be unable to elect as of its challenged districting choice under the scheme as its un- voting strength permit. requirement, diluted would This Again, then, constitutes the true test of vote dilution. no appears why applicable reason this test would not be to a challenging single-member vote dilution claim as well as multimember districts. conjunction

This measure of vote dilution, taken with measuring minority voting Court’s standard for undiluted strength, right roughly creates what amounts to a usual, proportional representation part compact, on the of sizable, minority groups. particular cohesive If, under a multi- single-member plan, qualified minority member or district groups usually representatives they cannot elect the would likely single-member be to elect under the most favorable §2 districting plan, minority then is violated. Unless challenged system regularly ap- success under the electoral proximates rough proportional representation, version of system § voting strength that dilutes and violates 2. appreciate implications approach, To of this it is useful repre- to return to the illustration of a town with four council given approach, sentatives above. Under the Court’s if the voting popula- voters black who constitute 30% of the town’s usually electing representative tion do not succeed one regardless employs choice, their large then of whether the town at- single-member elections or is divided into four districts, system its electoral violates 2. if Moreover, the town had a voting population reasoning 40%, black on the Court’s minority, long geographically politi- black so itas was cally usually cohesive, would be entitled to elect two of the representatives, normally possible four it since would be create two districts which black voters constituted safe majorities approximately 80%. requires plaintiffs prove sure,

To be also Court voting by majority that racial bloc the white interacts with challenged districting plan usually so as to defeat the mi- nority’s preferred require- candidate. In fact, however, this already ment adds little that is not contained in the Court’s requirements minority group politically that the be cohesive preferred usually and that its candidates lose. As the Court acknowledges, approach, general, under its “in a white bloc normally strength vote will defeat the combined mi- nority support plus white ‘crossover’ votes rises to the level legally significant voting.” white bloc Ante, at 56. But legally significant this is to define bloc the racial majority minority’s in terms of the extent of the racial elec- prove toral If success. can that it could consti- majority single-member supported tute district, that it certain candidates, and that those candidates have not usu- ally finding “legally sig- elected, been then a that there is voting” necessarily nificant white bloc will follow. Other- by usually wise, definition, those candidates would have won rather than lost. shaped by today,

As the Court then, the basic contours of require a vote dilution claim no reference to most of the developed by “Zimmer factors” that were the Fifth Circuit implement highlighted White’sresults test and which were Report. Rep., in the Senate S. at 28-29; see Zimmer v. Mc- (1973)(en banc), Keithen, 485 F. 2d 1297 aff’d sub nom. East Carroll Parish Board Marshall, School v. U. S. 636 (1976) curiam). (per minority group politically If a geographically large enough cohesive and to constitute a vot- ing majority single-member in one or more then un- districts, usually support minority’s preferred less white voters minority group candidates sufficient numbers to enable the many elect of those it candidates as could elect such hypothetical routinely districts, it will followthat a vote dilu- tion claim can out, be made and the multimember district will simply plaintiffs be invalidated. There is no need for to es- history voting-related tablish “the discrimination political subdivision,” State or at ante, 44, or “the extent to political voting prac- which the State or subdivision has used procedures opportunity tices or that tend to enhance the for against minority group,” ante, discrimination or minority group “the exclusion of members of the from can- slating processes,” ibid., didate or “the extent to which minority group past members bear the effects of discrimina- employment, tion areas as education, health,” such appeals political ibid., or “the use of overt or subtle racial campaigns,” unresponsive or ibid., that “elected officials are particularized to the needs of the members of the group.” may sup- course, Ibid. these other Of factors be portive they may strengthen claim, of such a because will court’s confidence voters be unable to over- disadvantage they placed come the relative at which are particular districting plan, suggest general a more lack of participate political opportunity process. in the But the emerged, fact remains that electoral success has now under linchpin standard, the Court’s as the claims, vote dilution and that the elements of a vote dilution claim create an en- roughly proportional representation titlement to within the single-member framework of districts.

I—I J—H measuring minority voting my s for view, In the Court test strength operating tandem, test for dilution, its vote repre- requirement proportional come closer to an absolute Congress than intended when it codifiedthe results sentation §2. necessary appropriate to It is not decide test § requires case whether a uniform measure undiluted this minority voting strength every appellants have case, nor challenged employed the standard the District Court for assessing minority voting strength. undiluted ap- have case,

In this the District Court seems to taken an making preliminary quite proach its similar the Court’s minority strength: voting assessment undiluted “At the time of the creation of dis- these multi-member tricts, there were concentrations of black citizens within of each that in num- the boundaries were sufficient contiguity voting major- bers to constitute effective wholly single-member lying ities districts within the single- districts, of the multi-member boundaries which satisfy require- all member districts would constitutional population geographical configuration.” ments of (EDNC Gingles Supp. Edmisten, F. v. 358-359 1984). goes beyond simply sustaining well

The Court the District employ Court’s decision measure of undiluted voting strength a reasonable one that is consistent with my deciding In we should refrain from in this case view, invariably posit must of “un- whether court as its measure strength single-member districts diluted” minority group majority. in which members constitute Congress intended “undiluted There is substantial doubt that minority voting strength” minor- to mean “maximum feasible appropriate ity voting strength.” defini- Even if that is the indication that Con- circumstances, in some there no tion universally single, applicable gress intended to mandate strength, voting measuring undiluted standard for regardless regardless of the extent of local conditions against minority particular past in a voters discrimination appellants political Since have not subdivision. State I the District Court issue, raised would assume that what the open permissible the under and leave §2, here was did § requires approach. question whether broader appellants propriety do is the of the District What contest Appellants the for dilution. claim that Court’s standard vote “[although held had achieved con- District that blacks Court winning legislative in in state seats the siderable success challenged consistently districts, failure attain their presumptively that numbers alone would number of seats (i. popula- give .proportion presence in in them to their e., §2. tion),” standing Brief alone, constituted a violation ap- Appellants original). holding, (emphasis in 20 clearly This for “nothing § proviso pellants argue, 2’s that contravenes right pro- in this establishes a to have members of section equal proportion in to their tected elected numbers class population.” 42 C. 1973. U. S. appellants’ of the I District Court’s believe characterization my holding view, In the District con- incorrect. Court prospects diminution severe cluded that there was a challenged districts, in each of the for black electoral success single-member compared districts which blacks could majority, that this severe diminution was constitute a large part the interaction multimember attributable voting persistent racial bloc on the with form the district majorities part in those districts. See 590 F. of the white great weight Supp., attached Court District at 372.2 simple proportion looked to seems have times, District 2 At Court districts in which black single-member ality hypothetical than to rather See, Supp., g., 590 F. at 367. No majority. e. voters would constitute §2 however, requires state that the District Court opinion, did where its level of electoral success that consistently attain the minority groups or voting population. total proportion correspond with their would part finding to this circumstance as one of its ultimate challenged “the creation of each of the multi-member districts registered in this action results in the black voters of that being submerged district as a in the district thereby having opportunity less than do other members participate political process of the electorate to and to representatives Id., elect of their choice.” at 374. But the opinion clearly District Court’s extensive relies as well on a variety thorough of the other factors, Zimmer as the Court’s summary findings of the District Court’s indicates. See ante, at 38-41. challenged

If the District Court had held that the multi- §2 solely member districts violated because blacks had not consistently proportion presence attained seats to their population, holding clearly its would have been inconsist- § right proportional representa- ent with 2’sdisclaimer of a Surely Congress say, tion. did not intend to on the hand, one protected right propor- that members of a class have no representation, any tional other, and on the that consistent proportional representation, failure to achieve without more, §2. requirement minority representation violates A usually proportional minority group’s proportion be to the population quite right propor- is not the same as a to strict representation, right tional but it comes so close to such a § to be inconsistent with 2’s disclaimer and with the results §

test that is In codified the words of Senator Dole, the compromise passage architect of the that resulted in of amendments to 2: language explicitly rejects,

“The of the subsection as did progeny, pro- White and its the notion that members of a right equal tected class have a to be elected in numbers proportion population. to their The extent to protected which members of a class have been elected challenged practice just under the or structure is one fac- among totality tor, of circumstances to be consid- (additional dispositive.” Rep., ered, and is not S. at 194 Dole). views of Sen. reasoning, reject the same I would the Court’s test

On minority for vote dilution. The Court measures undiluted voting strength by possibility creating reference single-member group in which the districts would majority, by looking pro- constitute a rather than to raw portionality alone. The Court’s standard for vote dilution, minority voting when combined with its test for undiluted strength, every rough makes deviation from usual, actionable proportionality representation any for cohesive degree proportionality group as to which this is feasible single-member Requiring within the framework of districts. every minority group possibly that could constitute a majority single-member assigned in a district be to such approach requirement proportional repre- district would nearly possible sentation as as is within the framework of analysis single-member entitles districts. Since Court’s every minority group usually many repre- to elect as such as it elect sentatives under a multimember district could single-member scheme, the most favorable district it under requiring proportional a form of follows that the Court is approach representation. This is inconsistent with the re- § right proportional a to test and with 2’s disclaimer of sults representation. enacting Congress “results” test this §2,

In codified the interpretation employed, as an of the Fourteenth Court had in The factors devel- Amendment, White and Whitcomb. by Report oped by Fifth and relied on the Senate Circuit simply as in fill in the contours of the “results” test described purport redefine or alter the and do not to decisions, those by discriminatory required showing effect Whit- ultimate my In it is to view, therefore, Whitcomb comb and White. in instance in deter- that we should look the first and White minority voting strength mining great impairment of how an § required of 2. to establish vote dilution violation is re- “results” as in Whitcomb and White test reflected minority group’s inquiry quires an into the extent of processes. political opportunities participate in See success a central U. at 766. While electoral White, S., inquiry, prove part held White that to vote dilution allegedly enough group racial dilution, vote “it is not that the against legislative propor- not discriminated has had seats voting potential,” id., 765-766, to its at tion Whitcomb flatly rejected “any group proposition with distinc- represented legislative if it is tive interests must be halls enough repre- one seat numerous to command at least sufficiently majority living compact in an to con- sents a area single atS., member district.” 403 U. 156. To the stitute contrary, plain- requires test as White results described political processes leading to establish “that the to nomi- tiffs equally open participation by nation and election were not group question opportunity its members had less —that participate other in the in the than did residents district processes political legislators and to elect of their choice.” By showing history dispropor- S., 412 U. at 766. “a both “strong political power tionate results” and indicia of lack of representation,” plaintiffs and the denial of fair in White emphasized just today, requires standard, which, met this substantially greater showing “a of adverse effects than representation support proportional finding lack of mere post, Bandemer, vote Davis v. of unconstitutional dilution.” (plurality opinion). at 131 Congress adopt amended it intended to this “re-

When abandoning showing test, while the additional sults” of dis- criminatory required intent Bolden. The vote dilution analysis adopted by today clearly the Court re- bears little emerged test to the “results” semblance Whitcomb test dilution, and White. The Court’s for vote combined “voting potential,” evaluating for White, with its standard any supra, means that racial with distinctive usually represented legislative if must “be halls interests enough it is numerous to command rep- at least one seat and minority living resents a sufficiently in an area compact to voting majority single constitute” a in “a member district.” Nothing Whitcomb, S.,U. at 156. in Whitcomb, White, language legislative §2 history or the supports right roughly Court’s proportional creation of this to usual, representation part every geographically on the compact, politically minority group large cohesive enough that is majority single-member form a in one or more districts. approach I would adhere to the outlined in Whitcomb and White and followed, with some elaboration, Zimmer and Appeals prior other cases the Courts of to Bolden. Under approach, a court should consider all relevant factors bearing minority group on whether opportunity has “less than participate other members po- of the electorate to in the process representatives litical and to elect of their choice.” added). (emphasis 42 U. S. C. 1973 The court should not (cid:127) solely minority group’s ability focus on represent- to elect atives of its choice. Whatever measure of undiluted minor- ity voting strength employs the court in connection with eval- uating presence minority or absence of success, electoral power it should also bear in mind that “the to influence the political process winning is not limited to elections.” Davis post, Bandemer, v. at 132. Of course, the relative lack of challenged plan, electoral success under a when compared predicted with the success that would be under the minority voting strength measure of undiluted the court is employing, powerful can constitute evidence of vote dilution. minority group may Moreover, in fact lack access to or upon representatives support influence it did not as candi- post, dates. Cf. Davis v. Bandemer, at 169-170 (Powell, concurring part dissenting part). J., Nonetheless, reviewing required court should be to find more than sim- ply minority group usually that the does not attain an undi- luted measure of electoral success. The court must Andthat highly infrequent even substantial success will be challenged may plan conclude, before it on the under plan operates minimize the “to cancel out or alone, that basis strength grou[p].” supra, voting [the] White, racial the Only three join the Court Part III-C of Jus- Justices of III opinion, validity the of the which addresses Brennan’s tice evidence on the District relied find- statistical which Court racially polarized voting challenged ing dis- each the divergent Insofar as evidence racial vot- tricts. statistical minority solely ing patterns is admitted to establish that the politically prospects group is cohesive and to assess its for agree I rebut this success, electoral showing by that defendants cannot offering divergent the evidence that racial explained by patterns may part race, be other than causes underlying divergence in an the interests of minor- such as ity agree, voters. I not that such however, and white do inquiry. evidence can never affect the overall vote dilution by preferred minority group a Evidence that candidate rejected by particular election reasons was white voters for preferred other than those which made that candidate minority group clearly choice of the would seem relevant in answering question voting by whether bloc white voters consistently minority will defeat candidates. Such evidence suggest equally preferred candidate, that would another minority group, might greater be able attract white support-in future elections. Congress explanations

I that believe also intended of the why rejected reasons white voters would candidates probative be likelihood candidates elected without minority support willing decisive would be to take the minor- ity’s community polarized into In interests account. that is along hostility may lines, racial racial bar these and other political greater indirect avenues influence a much community animosity extent than where racial is absent although groups diverge. the interests racial Indeed, Report clearly

Senate stated one factor that could have probative signifi- value cases was “whether there is a responsiveness part cant lack of on of elected officials particularized to the needs of the members group.” Rep., inquiry S. at 29. The overall vote dilution requires permits arbitrary against neither nor an rule consid- concerning voting preferences eration all evidence other patterns. voting than statistical evidence of racial Such a give Report’s rule would effect no whatever to the Senate re- peated emphasis politics,” on “intensive racial on “racial political politics considerations,” on and whether “racial . . . process” aspect dominate the electoral as one of the “racial voting” Congress showing bloc that deemed relevant Similarly, agree Id., violation. at 33-34. with Justice I White that Justice Brennan’s conclusion that the race of always racially identifying the candidate is irrelevant polarized voting necessary conflictswith and Whitcomb is not disposition (concurring). Ante, the this case. at grudgingly acknowledges,

In this the case, as Court the clearly aggregating District Court erred data from all of challenged relying districts, the and then on the that fact on average, any 81.7% of white voters did not vote for black primary study. candidate elections selected for Ante, encompasses Although at n. Senate District 59-60, exception House District with that the districts at issue in throughout this case are distributed State North Caro- intensely appraisal White for “an lina. calls local of the de- sign impact the . . district,” . multimember 412 U. S., voting racial statistics from one 769-770, district are ordinarily assessing totality irrelevant circum- specific in another In view stances district. of the evidence from each district that District Court also considered, say I however, cannot that its that was conclusion there se- voting clearly regard vere racial bloc was erroneous with any challenged Except districts. in House District voting prevent racial where bloc did not sustained and virtu- I success, electoral would accord- minority ally proportional District to give leave undisturbed the Court’s decision ingly racial each of challenged bloc great weight districts.

I—I <J usual, success the sole proportional made Having roughly hold goes its the Court on to analysis, vote dilution focus that an occasional candidate has been that proof 2§ But Justice Bren- does not foreclose a claim. elected that White, concludes nan, by “persistent Justice joined 2§ will foreclose a claim unless proportional representation” this “sustained success does not the plaintiffs prove its accurately ability reflect to elect group’s Ante, at 77. I representatives.” agree with Jus- preferred can- tice Brennan that consistent sustained success voters incon- by minority didates preferred presumptively §2 Moreover, with of a violation. sistent the existence I case no occasion for presents determining agree such would that success accu- proof what constitute did not in reflect the actual rately minority group’s voting strength district or districts. challenged in ex-

In the District Court erred the my view, assessing in of black electoral House District 39 and Sen- tent success in House the 22, 23, ate District as well District where As the Court error. evidence summarized acknowledges ante, in the B, form shows, 82, the Court table at Appendix seven of black electoral differed in the degree widely success In 8 and Sen- contested districts. House District originally no Court, in ate District neither which is contested this 2, in ques- offices black candidate had ever been elected to the 36, only In the tion. House District 21 and House District re- in the two most instances of black success came electoral the pendency of which took elections, place during cent one 39 and Senate this in House District litigation. By contrast, dated intermittent, 22, District successes, although black in elected each 1974, had been back to and a black candidate Finally, in the of these districts three of last five elections. in in House District 23 a black candidate had been elected each of the last six elections. drawing among Court,

The District no distinctions these findings, purposes “[t]he districts for concluded its overall achieved to at all results date levels elective office percentage are minimal in relation to in the blacks the total population.” Supp., 590 F. at 367. The District Court clearly it erred to extent that considered electoral success aggregate, challenged in in rather each of the than dis- inquiry “[t]he tricts, states, as the Court into since, the exist- district-specific.” ence of vote ... Ante, 59, dilution at n. Court 28. The asserts that District was Court free regard suspicion elections the results of the 1982 with and to decide “on basis of all relevant circumstances to ac- greater weight cord relative blacks’ lack success over ante, several at elections,” 76, course of recent but the explain technique apply Court not this does how would 22, Senate black District where a candidate was elected 1978, three from but consecutive elections no black candidate elected or House District 39, was where in 1974 black were and 1976as candidates elected well as Contrary thought, District to what Court see 590 Supp., pre-1982 pro- which successes, F. these were portional nearly proportional population to black these certainly support lend some for three multimember districts, enjoy finding equal black in these districts an voters political participate process opportunity in the and to elect representatives of their choice.

Despite agree with the I Court’s error, conclusion minority except 23, in House electoral that, District success compel sufficiently finding frequent equal to was of not opportunity participate elect. The District to Court challenged polar- “in each of districts found that racial voting presently to a substantial ization in exists or severe presently degree, operates it each to and ... district 104 voting strength Id., at 372. black voters.”

minimize clearly finding say re- that this was erroneous with I cannot particu- spect 22, 39 or District to House District Senate findings together larly with the District Court’s when taken concerning factors, and hence court’s the other Zimmer is dilution these districts of vote ultimate conclusion adequately supported. respect finding, clearly erroneous with to however,

This population 23. constitute 36.3%of the District Blacks House registered of the voters. In each in that district 28.6% represent- of the three the six elections since one from been There is find- this district has a black. no atives any suspect, ing, reason successful even black represent in District 23 did not fact the inter- candidates voters, and the District Court did not find that ests black previous elections was black success aberrant. against necessarily foreclosing a di-

Zimmer’s caveat vote successes, claim on the basis of isolated black 485 F. lution pressed Rep., 115, see S. at n. cannot be this 2d, 1307; Appeals Indeed, far. the Court of decisions on which Report relied, and which are the best evidence of Senate scope example caveat, elec- contain no remotely approximates that even the consist- toral success decade-long pattern g., e. See, District Turner ent, (CA5 1973)(no 490 F. McKeithen, v. 2d black candidates (CA5 1975) (one elected); House, Wallace v. 515 F. 2d 619 elected), grounds, candidate vacated on other 425 U. S. black (1976). virtually proportional propose I do not that consistent and always, law, a matter electoral success should finding general rule, violation. as a such suc- But, bar great weight evaluating is entitled to whether a chal- cess lenged totality has, electoral mechanism on circum- operated opportunity deny equal black an stances, voters process represent- participate political in the elect respect to House District atives of their choice. With failure to accord black electoral success such District Court’s weight clearly was erroneous, and the District Court identi- giving degree fied no reason for preclusive not of success Accordingly, agree effect. I with Justice Brennan appellees § failed to establish a violation of 2 in District 23.

V minority When members challenge of a racial a multi- grounds member district on the voting that it dilutes their strength, agree I they with the Court that must show that they possess strength such and that the multimember district impairs appraise Ait. court must therefore group’s voting strength undiluted in order to assess the effects of the multimember district. I would reserve the question proper making method or methods for this as- my sessment. But once such an assessment is made, view alleged impairment evaluation of an strength requires minority group’s consideration of the access to the political processes generally, solely not consideration of the preferred actually chances that its candidates will be elected. support minority- Proof that white voters withhold their from preferred consistently candidates to an extent that ensures significant weight plaintiffs’ their defeat is entitled to favor. plaintiffs proof solely if However, direct their towards the mi- nority group’s prospects they for electoral success, must show highly infrequent that substantial success will be challenged plan plan under the in order to establish that the operates voting strength. to “cancel out or minimize” their White, S., U.

Compromise major is essential to much if not most federal legislation, and confidencethat the federal courts will enforce compromises indispensable such to their creation. I be- today lieve that the Court strikes a different balance than Congress intended to when it codified the results test and any right proportional representation disclaimed under 2. join judgment I For that reason, the Court’s but not its opinion. Marshall Stevens,

Justice with whom Justice dissenting concurring part join, Blackmun Justice part. findings my opinion, Court, the

In the District which the of fairly n. ante, 37-41, 52-54, 23, and summarizes, at Court adequately support District the and nn. 28 and 59-61, judgment concerning as District 23 well the House Court’s judgment. balance of that agree of one black candidate

I, of that the election course, significant support provides for in 1972 each election since position. this evidence creates The notion that the State’s presumption, legal ante, at conclusive, 75-76, of some sort a by language supported the the of statute or however, is not, agree history.1 by legislative its I therefore cannot with the by fail- view that the District Court committed error Court’s today ing emerges apply statu- to rule of law that without tory support. The candidate success District evidence of large merely part extremely record the 23 is one of an which carefully making before its ulti- District Court considered upheld findings of be under a fact, mate of all which should "clearly application of the erroneous’’ standard that normal traditionally applies.2 the Court why of the reason the success one

The Court identifies is 1978, 1980, in the elections 1982 not black candidate ante, (“Section 2(b) provides mem ‘[t]he See at 75 that extent which one protected class have been elected to office... circumstance bers 1973(b). However, . . the may 42 U. . Sen which be considered.’ S. C. expressly candidates Report ate states that ‘the election of few “necessarily possibility the of dilution black does not foreclose ’ vote,” majority noting did, possibility if it ‘the exists that the citizens of a candi might manipulating [§ the election “safe” 2] evade decided, instead, ‘“require an . inde date.’ . . Senate Committee ’ omitted). ”) (internal citations pendent consideration the record” ante, (“[T]he clearly-erroneous application standard See findings preserves benefit of the trial court’s of vote dilution ultimate political reality familiarity indigenous with without endan particular law”). gering rule finding inconsistent District with the Court’s ultimate con cerning House 23.3 District The fact that one black candi was date also elected 1974, elections, Appendix my ante, opinion, at 82, B, is not sufficient, findings apply overcome the additional to House District 23, as well as to other districts in the for State each of those years. accurately findings: The Court summarizes those carefully

“The District Court this case considered the totality of the circumstances and found that in dis- each racially polarized voting; legacy trict dis- official housing, crimination in em- education, matters, ployment, persistence health and the services; campaign appeals prejudice to racial acted concert with ability districting impair the multimember scheme to geographically politically groups insular and cohesive participate equally political proc- of black to voters in the ess and to elect candidates of their choice. It found that enjoyed the success a few black have candidates these regard recent, districts is too too and, with the limited, to perhaps disprove 1982 elections, too aberrational, to its Ante, conclusion.” at 80. paraphrase

To the Court’s conclusion about the other dis- say composed tricts, ibid., I cannot Court, District judges acquainted political local are well with who re- clearly concluding State, alities erred of a use multimember electoral structure has caused black voters opportunity House District 23 to have less than white voters representatives Accordingly, elect of their I choice.4 con- ante, 23, 60, 52-54, n. See at n. 75-76. analysis, simply Even under the Court’s decision reverse —with extremely mystifying. First, It out remand —is is also unfair. give appellees opportunity legal an Court does not address the new Second, that the finds decisive. the Court does even standard Court not standard, why explain of that it was not satis bother contours ante, (“We no case fied this case. Cf. n. 38 have occasion except opinion except Part IV-B and inso- cur in the Court’s why judgment respecting explains it reverses far as it House District special satisfactorily types what circumstances could demon- decide accurately minority’s sustained success does not reflect abil- strate that preferred representatives”). Finally, though

ity to its couched as a elect ante, law,” entry abrupt “matter of conclusion about a Court’s appellants unwillingness give an judgment for on District reflects case, due, particularly when, respect District Court the it is knowledge expertise has a demonstrated entire District Court Congress directed it to consider. context that notes evidence that elected unresponsive particularized officials are to the needs of the minority group policy underly- members of the and that the ing political or State’s subdivision’s use the con- practice may probative tested is structure tenuous have Report Id., value. at 29. stresses, however, that this typical comprehensive list of factors neither nor exclusive. pertinent While the enumerated factors will often be to cer- §2 types particularly tain violations, to vote dilution may may claims,10other factors also be relevant and be con- Id., Furthermore, sidered. at 29-30. the Senate Commit- requirement any particu- tee is no observed “there proved, majority lar number of factors be or that a of them way point Id., Rather, one or the other.” at 29. the Com- question political “the mittee determined that whether the processes ‘equally depends upon open’ searching practi- are ‘past present reality,’” cal evaluation id., at 30 (footnote political omitted), and on “functional” view of the process. Id., n. 120. prohibits all of voting discrimination, just 10 Section forms not vote Rep., dilution. at 30. S.

Case Details

Case Name: Thornburg v. Gingles

Court Name: Supreme Court of the United States

Date Published: Jun 30, 1986

Citation: 478 U.S. 30

Docket Number: 83-1968

Court Abbreviation: SCOTUS