THORNBURG v. GINGLES
The North Carolina General Assembly passed a redistricting plan for the state's Senate and House of Representatives. Black citizens of North Carolina alleged that the plan created seven new districts where blacks would not be able to elect representatives of their choosing. They filed suit in a District Court claiming that this violated Section 2 of the Voting Rights Act of 1965 and the Fourteenth and Fifteenth Amendments. Before the District Court could hear the case, Congress amended Section 2 of the Voting Rights Act in order to clarify that voting violations needed only to have a "discriminatory effect" and required no "discriminatory purpose." Considering the "totality of circumstances" of the redistricting plan, the District Court ruled that six of the new districts violated the newly amended Voting Rights Act by diluting the power of the black vote. The North Carolina Attorney General appealed the decision directly to the Supreme Court.
Did the District Court err by holding that a North Carolina redistricting plan unlawfully discriminated against blacks in six voting districts?
Legal provision: Voting Rights Act of 1965
No. The Court found that five of the six contested districts discriminated against blacks by diluting the power of their collective vote. Justice William J. Brennan Jr. delivered the opinion for a unanimous court. The District Court properly performed its function "to ascertain whether minority group members constitute a politically cohesive unit and to determine whether whites vote sufficiently as a bloc usually to defeat the minority's preferred candidate." The District Court correctly analyzed data from three election cycles in North Carolina to determine that the black voters strongly supported black candidates, whereas whites usually voted against black candidates. The redistricting plan apportioned "politically cohesive groups of black voters" into districts where blocs of white voters would consistently defeat the black candidates. In violation of the Voting Rights Act, this damaged the ability of black citizens "to participate equally in the political process and to elect candidates of their choice."
ORAL ARGUMENT OF LACY H. THORNBURG, ESQ. ON BEHALF OF THE APPELLANTS
Chief Justice Burger: We will hear arguments first this morning in 83-1968, Thornburg against Gingles.
Mr. Attorney General.
Mr. Thornburg: Mr. Chief Justice, may it please the Honorable Court, this case in its final posture before the Court involves four multi-member House legislative districts and one multi-member Senate district in the State of North Carolina.
Two other districts, House District 8 and Senate District 2 are no longer part of this appeal.
The primary challenge to the lower court's judgment by the original defendants is based on that court's interpretation of Section 2 of the Voting Rights Act as amended in 1982.
The Court found infirmities in each of the districts that were challenged, and ultimately fashioned a remedy requiring the use of majority black legislative single-member districts where they could be drawn, and in each of the multi-member districts as they were constituted originally, they largely followed county lines and consisted of whole counties.
From this decision the defendants sought review, and the Solicitor General joined in that request.
We ask this Honorable Court to apply Section 2 of the Voting Rights Act so as to afford due respect to the intentions of the Congress without endorsing the undue expansion of these intentions by the lower courts.
We would encourage a decision that would enunciate definitive yet fair and realistic standards for evaluating the election practices in all jurisdictions, and we do this to the end that this Honorable Court's determinations might acknowledge the right of those jurisdictions to determine their own electoral affairs so long as they neither intentionally or unintentionally deny to any minority group the emphatic opportunity to participate fully and equally in the electoral process.
We do so to the additional end that your ruling might foster political unity as opposed to disunity among the electorate.
The Panel Court suggested that it was paying adherence to the proposition that no protected class of persons has a constitutional right or statutory right to proportional representation, or to guaranteed political success.
But pursuant to Section 2, the Court found that it had been shown by the plaintiffs that North Carolina's political process was not open equally to participation by the racial minorities, and this was purportedly based on the use of certain factors that were denoted by the Senate in the legislative history of the Section 2 amendment.
These factors are certainly well-known to the Court and should have been imported to the district court, not as a mechanical checklist of conclusive indicators, but rather a set of guidelines for determining whether the characteristics of the jurisdictions being examined parallel those of jurisdictions examined in the cases to which the Senate referred, particularly White versus Regester, Whitcomb versus Chavis, and Zimmer versus McKeithen.
And, we submit that had the district court applied these factors in the manner intended, giving primary weight all the while to the words of the statute and properly analyzing the cases from which these factors came, then North Carolina would have prevailed in that Court.
Unidentified Justice: Well, don't you think they purported to apply them?
Mr. Thornburg: I think, Your Honor, that they sought to apply them more as a checklist rather than as an indicator of what actually had occurred, which leads me to call the Court's attention--
Unidentified Justice: The answer is, yes, they did purport to apply them?
Mr. Thornburg: --Oh, I think they purported to apply them but--
Unidentified Justice: You disagree with the way they--
Mr. Thornburg: --Certainly do.
And we say, if Your Honor please, that the counties and the districts that are involved in this case certainly in no way can be equated to the counties of Fair County and Dallas County which are the two counties in Texas that were involved in the White decision.
Durham County, North Carolina, for example, with a 28.6 percent black registration has had proportional representation in the North Carolina House since 1973.
Two of the five county commissioners are black.
Two of the four district court judges are black.
All of them ran at large.
The Chairman of the Democratic Party from '69 to '79 and from '83 to present is black, and one of the three members of the Board of Elections from 1970 to 1981 was black, when a member resigned and went on to North Carolina State Board of Elections.
Wayne County, with a 15.1 percent black registration, has a representative serving his second term.
The sheriff of Wayne County, elected by the at-large electorate, is black.
One of seven County Commissioners, two of eight District Court judges, a black Senator from '75 through '78, and from '77 to the present a member of the Board of Elections.
Unidentified Justice: --General Thornburg, is it your position that the court below was required to focus on the individual election districts rather than the state as a whole?
Mr. Thornburg: Yes, Your Honor.
We contend that a lot of the use of the statistics that appear in this record involve statewide statistics as opposed to statistics in these particular districts.
Unidentified Justice: Do the precedents, do the cases from this Court indicate that that is a requirement?
Mr. Thornburg: As we read them and understand them, Your Honor, that this--
Unidentified Justice: That you look at the individual--
Mr. Thornburg: --I believe you use the words, 63.5 percent of the popular electorate.
Unidentified Justice: --Well, do we have to apply a clearly erroneous standard to the review of the factors found by the court below?
Mr. Thornburg: Your Honor, we do not feel that the clearly erroneous, the Rule 52 standards, should be applied in this case to proscribe your reviewing the facts in the case.
We contend that what is before the Court is a mixed question of law and fact, and that in order to appropriately determine the case, you have to apply... you have to look at the facts as found and apply them as the law appropriate to those facts.
Unidentified Justice: Well, specifically, what are the legal errors that you believe were made below?
Mr. Thornburg: We simply say that the court failed to apply the wording of the statute and rather than taking the statute which deals with access and opportunity to participate in the electoral process, clear wording, is simply found the various factors without making a causal connection and applied those, and simply did not apply the law, and fashioned a remedy which is specifically proscribed by the statute where it says that nothing in this should be interpreted, nothing in the section should be interpreted to establish a right to have members of a protected class elected in numbers equal to their proportion in the population.
This is precisely what the district court did by way of fashioning a remedy in this case.
We contend, if Your Honor please--
Unidentified Justice: I suppose you can do things as a remedy for constitutional rights that you just couldn't do in the absence of a remedy... in the absence of a violation.
You really, fundamentally disagree with the finding of the violation?
Mr. Thornburg: --Yes, we do.
We say that if you take this... take the statute and apply it to these facts, if Your Honor please, that you come out with a different result.
Unidentified Justice: And no violation of the statute?
Mr. Thornburg: That's correct, Your Honor.
That is our contention.
And we contend that by applying the law as the court did and by fashioning the remedy in the manner in which it did, that it expanded the scope far beyond the intent of Congress in the passing of this Act.
These facts, as found by the court, will demonstrate that blacks in these challenged districts have run for office, are always competitive, and often win.
In fact, no elected black incumbent member of the General Assembly who has offered for re-election has ever been defeated.
Blacks recieve Democratic Party support for their candidacy.
They hold positions of power and leadership within the party structure, and they have equal access to the process and to the at-large scheme and had achieved proportional representation at the time of this trial in each of the districts with the exception of Hecklenburg County.
We consider, of course, that voter registration as indicated by the facts in the case should be brought up to the Court.
In this case, for '80 to '82 statewide registration among whites decreased by 112,000 but increased by 12,000 in the black community.
It's true that blacks in the challenged districts fall below whites in most of the socioeconomic indicators, but the electoral success of the blacks in these districts in the various offices, and their membership on the Board of Elections and in party position and so on indicates that the socioeconomic factors are no longer an obstacle to their participation, meaningful participation in the political process, and we suggest that it defies common sense to count these factors as indicia of unequal participation when the direct evidence as exists in these districts shows to the contrary.
I will call to the Court's attention also that none of these counties is a Section 5 county.
Only 40 of our 100 counties are so covered.
The United States Attorney General required the creation of numerous single member legislative districts in these counties, and his determinations were never contested by North Carolina in any legal proceeding and were immediately implemented when those suggestions were made.
Unidentified Justice: Mr. Attorney General, I gather that if you prevail, you suggest you are entitled to an outright reversal, not further proceedings?
Mr. Thornburg: We would hope for an outright reversal, Your Honor, but certainly we would... whatever the Court suggested--
Unidentified Justice: Well, if it were to go back, if it were to go back, for what purpose?
Mr. Thornburg: --If it were to--
Unidentified Justice: Enough to say there had been an error made in the application of the law and that we should send it back, how to apply it, as we say?
Mr. Thornburg: --Yes, Your Honor.
We would of course appreciate a reversal with an interpretation of the statute and how to apply it, and in these multi-member districts, of course, we would then continue with the multi-member legislative delegations as they existed.
North Carolina has historically placed a tremendous amount of importance in our counties and county lines and so on, since Colonial times as a matter of fact, and that was the primary basis on which these various districts were drawn and it has no foundation in racial tainted motivation of any kind, the district courts have held.
Unidentified Justice: If there was an outright reversal, then the Legislature would have to start all over again, would they?
Mr. Thornburg: They would... I believe, if Your Honor please, maybe my colleagues to my left can verify it, but I think the General Assembly in the last session passed a statute which said that if the case is reversed it simply goes back in these districts, these five districts that are under consideration to the multi-member legislative districts.
We are a large and not a homogeneous state in the State of North Carolina, and we feel that each of these districts must be viewed individually and evaluated individually under any statute, according to the particular characteristics that they exhibit.
Unidentified Justice: What is the major error, you think the district court made in concluding that there was a violation of the statute?
Mr. Thornburg: We think the district court simply ignored the facts in the case.
Unidentified Justice: I know, but what's the principal way it did that?
Mr. Thornburg: By ignoring access to the political process which we contend exists, and the facts show, it's just a fundamental error, Your Honor.
When you look at the facts and apply the law as written by Congress, you just don't have the facts to support the decision that the district court made.
Unidentified Justice: May I just inquire, I also have a little trouble, as Justice White did, in getting the heart of your theory.
With respect to each of the districts, the district court did make some factual determination.
I take it you don't challenge any of those; you just say they're not sufficient to justify the--
Mr. Thornburg: Yes, Your Honor.
Unidentified Justice: --They went through district by district and talked about polarized voting and one thing and another.
That part you accept?
Mr. Thornburg: That sort of thing, but we say, if you apply all of that, given all of that, and take those facts as found by the court, which the facts that the court found are based on the record, but when you apply the law to those facts then you don't come out with the result that district court did.
Unidentified Justice: Is that because... your basic point, as I understand it, is if the net result of all the voting is something that roughly equals proportional representation, then as a matter of law there can't be a violation of the statute?
Mr. Thornburg: No, Your Honor.
That's not what I intended to say.
That is just one of the indications.
We say that you have to look as the Congress did, in lifting the White versus Regester language, you have to look at the totality of the circumstances and make a final decision based on all this and all of these access points, participation points and so on that you have where blacks are holding elective offices, where they hold offices in party machinery, where they participate in the electoral process, taking all that into consideration, do they have equal access to the electoral process, which this is what the law requires.
It doesn't place any... as we read it, it doesn't place any affirmative burden on the State to do anything particularly except to be certain that everyone, regardless of race, creed or color, has an equal opportunity to participate.
Unidentified Justice: In what?
Mr. Thornburg: In the electoral process, Your Honor.
Unidentified Justice: In the processes, it says... doesn't the statute say, "and to elect"?
Mr. Thornburg: Let me quote Senator Dole on that.
Unidentified Justice: Well, let's just quote the statute.
What is it?
Mr. Thornburg: All right.
The statute says, a violation is established if based on the totality of the circumstances it is shown that the political process or processes are not equally open to participation by members of a class of citizens protected, and that its members have less opportunity than the members of the electorate to participate in the political process and to elect representatives of their choice.
Unidentified Justice: And to elect?
Mr. Thornburg: Yes, Your Honor, and we say that that should be interpreted so as to... not susceptible to the interpretation of election outcome but means that members of a minority have a right to vote, a right to register, a right to have their vote fairly counted, and that North Carolina in these districts has been doing that.
Unidentified Justice: Why do you think the cases emphasize racially polarized voting?
Mr. Thornburg: Certainly racially polarized voting is important in the overall decision.
Unidentified Justice: Why is it?
Why is it?
Mr. Thornburg: By virtue of delusions, submergence, or whatever the effect that you choose to attach, which of course would occur.
Unidentified Justice: But even with polarized voting, why, everybody's vote is counted.
Nobody is denied a vote.
Mr. Thornburg: Nobody is denied a vote.
The benefit is so submerged and subdued and diluted that it has no effect.
But, that is not the case here.
Unidentified Justice: Well, let's just assume that the court was correct in finding that there was severe polarized voting in this case.
Mr. Thornburg: If you used the district court's interpretation, you could call it correct.
But what the district court interprets polarized voting as, Your Honor, was simply if more whites vote for whites and more blacks vote for blacks, then you automatically have polarized voting.
Unidentified Justice: I understand your position, but if there were severe polarized voting in this case, you'd have a much tougher case, with these multi-member--
Mr. Thornburg: If that were correct.
We do not believe it is correct.
And if I may save the remainder of my time, Your Honor, for rebuttal.
Unidentified Justice: --Well, I can ask the Solicitor.
Chief Justice Burger: Mr. Solicitor General.
ORAL ARGUMENT OF CHARLES FRIED, ESQ. AMICUS CURIAE IN SUPPORT OF APPELLANTS
Mr. Fried: Thank you, Mr. Chief Justice, and may it please the Court:
The formulation in the new Voting Rights Act, Section 2, was the product of intense political and, may I say, intellectual struggle.
The outcome of that struggle should be quite familiar to this Court since it simply adopted the standard, the legal standard formulated by this Court in White v. Regester.
Our concern in this case is one thing only, that adjudication under this new Voting Rights Act be lawful, that it be constrained and disciplined by appellate court review which enforces the standard that Congress enacted.
Now, Congress chose a middle path between two extremes.
On one hand was the extreme represented by the constitutional minimum of intentional discrimination, and that was rejected.
On the other hand was the extreme of leaving the district courts at large to engineer electoral outcomes as they thought best on racial or group lines.
What the Congress adopted was, if you like, an effects test, but effects on what?
Effects on participation, on process, on opportunity.
Now, if fidelity to that standard is to be enforced, then whatever nuances there may be in closer cases, it is our position that here, certainly in three and perhaps in all of the five contested districts, but certainly in three of them, we believe that that standard of access, of process, of opportunity has been met as a matter of law.
Unidentified Justice: Mr. Fried, do you think that the Court is required to make a separate vote dilution finding as to each district?
Is that a legal requirements?
Mr. Fried: That is a legal requirement.
This Court has said so over and over again.
The legislative history, the Senate report, makes it quite clear that the importance is district by district.
Unidentified Justice: And by doing that, did the court below effectively do that in this case?
Mr. Fried: The court below certainly addressed each district, but the court below also seemed to be very impressed with overall statistics in the State of North Carolina and we think may have been misled by its attention to those overall--
Unidentified Justice: It should have focused on electoral success of black candidates in each district over a period of time?
Mr. Fried: --If I may, Your Honor, I would say electoral opportunity as evidenced by very great electoral success over time.
Now, the reason we say that the congressional standard, the White v. Regester standard, if you will, was met as a matter of law in three of those five districts is that in all of those districts over a protracted period of time, in a couple of them over nearly a decade, black representatives equaled or exceeded the percentage of black citizens in the population.
Nor was this black success achieved by contrivance or through sufferance of the majority, but if you like, in the old fashioned way through politics, through participation in party politics, in some cases by blacks serving as chairmen of the local majority political parties.
Unidentified Justice: We were addressing, Mr. Solicitor General, the total of the racial population are the registered voters in each category.
Mr. Fried: We are addressing the harder case, because we think even on the harder case the case is made out, which is the population.
If it were registration then we could we have an argument about whether that registration was in some sense unfairly depressed.
But even if you take population, these factors are made out in those three districts.
But the thing we find most striking is that the single member districts which seemed so dear to the heart of the appellees and the district court, if the multi-member district had been broken up into single member districts, the result would have been not an increase in black opportunity and participation but a decrease, since the number of representatives, black representatives would have been the same.
Yet, the black citizens living outside of the favored super-majority single-member districts would have been, on the district court's hypothesis voting patterns, deprived of an opportunity which they manifestly enjoyed under the State's previous multi-district system.
Unidentified Justice: Is there any evidence in this case of barriers to registration that existed in the past?
Mr. Fried: On the contrary, Your Honor.
The district court specifically found that there had been assiduous efforts to remove such barriers.
Now, I would in the last moments simply like to say that there is some confusion suggested by appellees that we are arguing for a standard of tokenism because we speak of minorities not being locked out or shut out of the electoral process.
When we do so, we do so only in quotation marks, quoting either Mr. Armand Derfner or Senator Kennedy, when those proponents of the Act were saying we're emphasizing that the Act spoke of opportunity and access.
Our language is more generous and more cautious.
We say it must be equal access and equal opportunity.
Unidentified Justice: Mr. Solicitor General, are you still of the view that Senator Dole's views are particularly persuasive, or have you switched now to Senator Hatch?
Mr. Fried: Not at all.
We think, as we say in our brief and I would very much direct the Court's attention to note 12 of page 8 of the brief, that it is the views of Senator Dole which ought to be given particular weight in interpreting the formulation which was arrived at.
We do not, and I don't believe in our brief do we ever attach particular significance to the views of Senator Hatch.
It's Senator Dole that we rely on, at least Senator Dole as he spoke in the Senate.
I thank the Court for its attention.
Chief Justice Burger: Mr. Chambers.
ORAL ARGUMENT OF JULIUS L. CHAMBERS ON BEHALF OF THE APPELLEES
Mr. Chambers: Mr. Chief Justice and may it please the Court:
The issue presented here by the Solicitor General and by the State, I think can be put simply, whether the election of the five black candidates in 1982 in four of its challenged electoral districts, forecloses any possibility for finding that blacks in the challenged districts have been denied an equal opportunity to participate in the electoral process.
I don't think that anyone would seriously argue that the facts in North Carolina prior to 1982 would warrant a finding that black votes in each of the challenged districts were substantially diluted.
And so, the State and the Solicitor General now contend that because five blacks were elected in these challenged districts in 1982, that should foreclose a determination that there was a violation of Section 2.
The State and the Solicitor General asked the Court to ignore that in two of the districts no black was ever elected to the State House.
Unidentified Justice: Never elected to what?
Mr. Chambers: To the State House of Representatives, House District 8 and Senate District 2.
The Solicitor General and the State asked the Court to ignore all the other factors that the district court looked at, reflect on the history of discrimination.
Unidentified Justice: Those are both multi-member districts, 8 and 2?
Mr. Chambers: Eight is a multi-member district.
Unidentified Justice: How many?
Mr. Chambers: Four.
Unidentified Justice: And two?
Mr. Chambers: Two is a district where the Court found the State had carved out a black residential area so that it would reduce the percentage of blacks in each district.
Unidentified Justice: Is that a single member district?
Mr. Chambers: It is a single member district, yes.
Unidentified Justice: Mr. Chambers, help me on those two districts.
I understand that your opponents, they don't contest those any more?
Mr. Chambers: They now advise that they don't contest those two, but I am talking about the initial thrust that the State and the Solicitor General presented, included those two and also included Mecklenburg County with House District 36 among others.
Unidentified Justice: What about the three districts that the Solicitor General now particularly disagrees with the... or disagree with the district court order?
Mr. Chambers: I will talk about that right now, Your Honor.
Unidentified Justice: All right.
Mr. Chambers: I would first of all, though, like to ask the Court to look at the Plaintiff's Exhibits 4-A through 10-B, as a beginning of how the district court proceeded--
Unidentified Justice: Where do we begin?
Mr. Chambers: --I'm sorry.
That's in the Plaintiff's... or Joint Exhibit Volume 2.
Unidentified Justice: What page?
That's all right.
We'll find it.
Mr. Chambers: It begins with Plaintiff's Exhibit 4-A.
And that reflects the House District 36.
And the other exhibits that follow talk about the other districts and have... we can use this as an example.
In House District 36 we have a substantial concentration of black voters within that district who would make up, or should be able to affect the results of, with respect to two districts, representatives in that district.
They would constitute more than 60 percent of the representative or the electorate in those districts.
What the State has done, it has merged these blacks in a large, exceptionally large electoral district so that their votes are now reduced from the 60-some percent to 30-some percent, and in fact, in Mecklenburg County less than 30 percent.
In that position they are not able to control of effect any... determine the outcome of any election.
Unidentified Justice: Is this... how many are elected from this district?
Mr. Chambers: Eight.
Unidentified Justice: Eight.
And how many black members were elected from District 36?
Mr. Chambers: Your Honor, prior to 1982, none.
In 1982, one person was elected.
Unidentified Justice: And no election since then?
Mr. Chambers: There was an election in 1984, but that was under the plan directed by the court.
While I'm on that, Your Honor, I should point out that the Solicitor has argued that there was a reduction as a result of the plan ordered by the court.
That is not true.
In fact, in Wayne County, which I think the Solicitor General is using, in Forsythe County, House District 39, two blacks, two black districts were established as a result of the plan submitted by the State, and two black representatives were elected.
Unidentified Justice: I thought, Mr. Chambers, that the focus of the Solicitor General's brief was on House Districts 39, 23 and 21.
Mr. Chambers: That's correct.
Unidentified Justice: Rather than 36, is that right?
Mr. Chambers: That's correct, and I was... if you look at House District 23, that's reflected in the Plaintiff's Exhibit 6-A.
That is Durham County.
House District 39 is in Plaintiff's Exhibit 5-A, and House District 21 is in Plaintiff's Exhibit 7-A.
And in each instance we see a substantial concentration of blacks who under normal practices in this country would be able to affect the results of elections, and the determination of who would be their representative.
But when you merge these districts together with the other factors that the Court looked at, their votes are substantially diluted.
So in Durham County where we had a black--
Unidentified Justice: And what was the election success experienced in those three counties, in those three districts, 39, 21 and 23?
Mr. Chambers: --In 1975 a black was elected in House District 39.
But between that period and 1982 there were some blacks appointed but... two blacks were elected in 1982, which the Solicitor's General and the State used as the basis for saying there could possibly be no dilution because in their position, blacks were elected in proportions higher than their representation in the community.
Unidentified Justice: And if there were single member districts doing the best you could for the blacks in 39, you probably couldn't have more than two?
Mr. Chambers: You would have two districts.
Unidentified Justice: Mr. Chambers--
--With safe majorities?
Mr. Chambers: With safe majorities.
Unidentified Justice: Mr. Chambers, I understood the Solicitor General to say that if these districts were broken up, that blacks would have less opportunity to be elected.
I suppose that might depend on the way they were broken up, but what is your response to that?
Mr. Chambers: Your Honor, that is what I was just referring... that is not the position that I think... that is not accurate.
In House District 39, with the districts broken up, two black, majority black representative districts were established by plans presented by the state.
In House District 23 one majority black district was established, and the same in House District 21.
But the other point, Your Honor, that we should look at is--
Unidentified Justice: You don't want any further breaking up of those districts?
Mr. Chambers: --No.
We do not advocate any further breaking up of House District 23 or House District 21.
Unidentified Justice: Any more than--
Mr. Chambers: Any more than the Court approves.
Unidentified Justice: --Has the Legislature acted, or do you merely have the court approval?
Mr. Chambers: The Legislature presented... developed these plans and presented them, and the district court approved the plan presented by the legislature.
Unidentified Justice: So, they are in effect?
Mr. Chambers: They are in effect now, and elections in 1984 were conducted under--
Unidentified Justice: But it's still via court order?
Mr. Chambers: --By court order.
But even in House District 23 and House District 21, blacks were elected only because blacks single-shot votes, and in doing so they had to forego any opportunity to affect the elections of the other districts, district representatives.
So, you see, the concentration of blacks voting for a black candidate, unable to vote for any other candidate, to have any success in electing a representative.
Whites don't have to look to blacks for any support in those districts.
Unidentified Justice: Are you talking about each one of these districts?
Mr. Chambers: House District 21 and House District [= 23].
Unidentified Justice: Well, the way it... under single member districts you're certainly not going to have any chance to influence--
Mr. Chambers: You do not, Your Honor, but you're also able to elect a representative and determine the person who is representing you.
Also, if you look at the--
Unidentified Justice: --How about past experience in 23 and 21?
Mr. Chambers: --In terms of--
Unidentified Justice: Until the court adopted this plan, had there ever been a black elected in 23?
Mr. Chambers: --A black was elected in 23 in 1973, Your Honor.
Unidentified Justice: And since then too?
Mr. Chambers: Since then.
Unidentified Justice: Each--
Mr. Chambers: Each election since '73.
Unidentified Justice: --In this multi-member district?
Mr. Chambers: In this multi-member district.
Unidentified Justice: There has been one black elected?
Mr. Chambers: Well, two different blacks were elected, but only one black per term.
Unidentified Justice: I understand that, but you wouldn't get any more under single member districts?
Mr. Chambers: You would not, but if you look at--
Unidentified Justice: How about 21?
Mr. Chambers: --One black was elected to the State House for the first time in 1980.
Unidentified Justice: And since?
Mr. Chambers: And since.
Unidentified Justice: And of course under the single member district there has been a black elected.
So, how many elections were there, beginning with '80 and then '82, there was a black elected?
Mr. Chambers: There was a black elected.
Unidentified Justice: And '84, is under the court plan?
Mr. Chambers: Under the court plan.
Under the multi-member districts--
Unidentified Justice: And in District 39, as long as we're going over these three, could you recount what has happened there as well?
Mr. Chambers: --Yes.
A black was elected in '39, in 1975, and 1977, I believe.
No black was elected in 1978, although a black who had been appointed ran and was defeated.
A black ran in 1980 who also was... had been appointed and was running for re-election and was defeated.
Two blacks were elected in 1982, and as the district court found, looking at the substantial block, racially block voting, the success of candidates in each of these elections was substantially adversely affected by the way whites refused to support any black candidate.
In each district, Your Honor, more than 81 percent of the whites... well, on an average more than 81 percent of the whites refused to support any black candidate in the primaries.
Unidentified Justice: Well, don't you have... to pretty well have to depend on the polarized voting aspect of this case?
Mr. Chambers: Your Honor, I think polarized voting here is important.
Unidentified Justice: Well, you certainly weren't excluded from participating in registering or voting or in the party processes at all, and the party of your choice, you had just as much influence as anybody else.
And it's just when it comes to... and you had candidates, did you?
Mr. Chambers: Your Honor, recently the structural barriers to registration had been removed.
Historically there had been problems, but the district court found more recently, those barriers had been removed.
Unidentified Justice: Well, what do you depend on in this case for this conclusion of--
Mr. Chambers: Those barriers--
Unidentified Justice: --Of exclusion from access, from non-access.
What do you depend on except polarized voting as really important?
Mr. Chambers: --The barriers that had been in effect previously continue to affect the ability of blacks to--
Unidentified Justice: How does it do that?
Mr. Chambers: --Well, first of all you have a problem of registration.
Blacks still were under-represented in registration as compared with whites.
There was a problem of large multi-member districts that cost on an average twice as much as running in a single member district, and with the problems that blacks had and their economic condition, they weren't able to support a candidate.
Blacks were segregated residentially and didn't have access to whites.
So, the historical practices that existed previously continued to affect the ability of blacks in 23 and 21 as well as 39 and the other districts looked at, to participate equally, and certainly in their ability to elect representatives of their choice.
So, looking at the facts overall, at the totality of circumstances that the district court was directed to review, even with the 1982 election, blacks were substantially affected in their ability to participate and to elect representatives of their choice.
Unidentified Justice: Do you defend the definition of polarized voting that the district court expressed?
Mr. Chambers: Well, I was going to turn to that, Your Honor.
In polarized voting, the district court proceeded to analyze what happened there in two steps, which is proper.
First it looked to determine whether blacks and whites in fact voted differently, and they in fact do.
Second, it then proceeded to determine, as the Congress had directed it to--
Unidentified Justice: When you say they in fact do, do you mean in this particular situation, not generally over the country?
Mr. Chambers: --That's correct, Your Honor.
In North Carolina.
It then looked at the extent to which blacks and whites voted differently.
What the Solicitor General and the State have done is, they have taken the first step and said, that's the court's definition for severe polarized voting.
I ask you to just look at the district court's opinion, and you'll see how the State and the Solicitor General have misread that opinion, because after looking at whether black and whites vote differently, the court then looked at basically three other things.
Historically, over 81 percent of whites have refused or failed to vote for black candidates in the primaries.
Historically on an average 60-some percent of whites refused to vote for a black candidate when the black is nominated.
Unidentified Justice: Historically, back in the 18th Century or when, just the last few years or when?
Mr. Chambers: We looked at elections from 1978 through 1982.
Unidentified Justice: That's the period.
Mr. Chambers: Even where a black is nominated by his party, then, whites failed to vote for black candidates.
So in Forsythe County, House District 39, black candidates are nominated by the Democratic Party and yet defeated by whites refusing or failing to vote for black Democratic candidates.
Unidentified Justice: Is there party registration in North Carolina?
Mr. Chambers: Yes.
Unidentified Justice: Even though there's a majority of what, Democrats?
Mr. Chambers: There is a majority of Democrats.
Unidentified Justice: And yet you couldn't elect a black Democrat?
Mr. Chambers: In Forsythe County.
And so, the standard that the district court followed in determining whether racially polarized voting existed was consistent with what Congress had directed.
The court also looked at another factor.
Unidentified Justice: Mr. Chambers, do you think the court looked at all... in determining the racial block voting, at the intensity of the block voting, to look at factors that might explain the actual interest, difference in interests at stake to determine the intensity of the voting?
Mr. Chambers: Your Honor, that was not considered necessary by the district court and I think appropriately, because Congress had eliminated the necessity for determining whether intent existed.
Unidentified Justice: Not intent, intensity.
In other words, the reasons that explain the statistical disparity in the voting, and factor in to some degree electoral success.
Do you think the court has to do that in appraising racial block voting?
Mr. Chambers: Your Honor, here... I'm sorry... here the district court did patiently look at the success of black candidates in 1982 and before, and the way that whites voted, first to come to a determination that there was severe and significant racial block voting, and second, to determine whether 1982 was an aberration from what the pattern was.
There was a very intense analysis of those factors for the court to arrive at that decision.
The court also looked at racial appeals.
In 1983 Senator Helms is still presenting racial appeals, like the racial appeals we faced in 1890.
So, looking at North Carolina overall, we do have a factual situation very similar to those this Court considered in White versus Regester, and I think a much more appealing case than White versus Regester, and the other cases which have followed it, because we have substantial racial block voting.
We have substantial racial appeal.
We have substantial submergence of black in each of the districts, District 23, 21, [= 39] as well as the others, and we have all the factors that make for dilution of black votes.
Unidentified Justice: Mr. Chambers, may I ask you a question that probably has a very simple answer but it doesn't occur to me at the moment.
How do you know what percentage of whites failed to vote for black voters, and what percentage of blacks did not vote for whites as distinguished from voting for blacks?
Mr. Chambers: Your Honor, first there were two statistical analyses.
Unidentified Justice: Based on what?
Mr. Chambers: Looking at the composition of districts.
If whites constitute 95 percent of a district, looking at census tracts for example, and if a candidate, white candidate receives 95 percent of those votes, statisticians determine that that candidate is receiving 95 percent of the white votes of that district.
And if you look at a racially mixed district, and whites constitute a certain percentage of the residents of that district, and white candidates receive a certain percentage of the vote, then there is a statistical determination that whites vote for white candidates in that particular percentage, and the same with respect to blacks in the district.
Unidentified Justice: These are estimates, though, aren't they?
You really can't tell.
Mr. Chambers: They are statistics.
Unidentified Justice: Voting is secret, isn't it?
Mr. Chambers: Voting is secret.
Unidentified Justice: In North Carolina?
Mr. Chambers: Fortunately it's still secret in North Carolina.
Yet, one can make a determination that whites have supported a candidate in certain percentages and blacks in another.
Unidentified Justice: While I've interrupted you, when were all the barriers to registration of blacks removed?
Mr. Chambers: Well--
Unidentified Justice: Removed officially.
I know the argument is that there were lingering effects.
Mr. Chambers: --I think officially, Your Honor, the most recent effort was in 1970.
There were still problems, as I understand it, of blacks having to pass a literacy test in some districts.
Unidentified Justice: Up to 1970?
Mr. Chambers: Yes.
Unidentified Justice: Let me ask another factual question while you're off the track.
In the maps that you called our attention to, for example House District 23 which has three members, there's also information concerning the residence of the members.
In each map, there are more residences than there are members, and I'm puzzled.
There's six people indicated and only three members.
And what is the significance of the residence of the members?
Mr. Chambers: Your Honor, you're looking at House District 39?
Unidentified Justice: Well, I was happening to look at 23.
Mr. Chambers: Okay, it's 23.
Well, we'll look at 23.
We have presented here all of the residents... the residences of all of the elected officials since 1978.
Unidentified Justice: Well, of all elected officials, not just--
Mr. Chambers: No, no, all the House of Representatives members and the Senatorial members.
Unidentified Justice: --Since--
Mr. Chambers: '78, we're talking about all of the people who were elected.
Unidentified Justice: --Oh, I see, so that covers more than one term of office?
Mr. Chambers: More than one term of office.
So, what we are depicting here is that with multi-member districts, blacks have limited accessibility to the representatives.
As you see here, the representatives are all outside the black residential areas.
And that's true in House District 36 as well as House District 23.
Unidentified Justice: I was wondering if you were making the point... it just occurs to me that perhaps if you had single member districts instead of multi-member, maybe you'd have the same number of blacks but they might be different blacks?
Mr. Chambers: That is possible, Your Honor.
What we are talking about, though, is the ability of blacks to relate to their representatives, to insure that those representatives are accountable for the way that they represent the interests of blacks.
Where they live outside the district, they first of all are not accessible, and where blacks have to depend on white votes to elect representatives, they aren't necessarily accountable to the black community.
We have testimony in the record how these multi-member districts affect the ability of blacks to protect and advance their own interests, and these are factors again, looking at the totality of the circumstances, that the district court looked at very intensely to determine whether vote dilution in fact occurred.
Also, if you look... the Defendants asked the Court to not apply Rule 52 in this particular instance.
I think that Rule 52 controls the determination here, and I think is extremely important.
First if we look at the fact, we have three native North Carolinians who sat on this case.
They knew the facts in North Carolina.
Prior to their appointment to the bench they had actively participated in politics in North Carolina.
One had served as a dean of a law school.
And then they looked very closely at whether there was a real opportunity for blacks to participate in each district, and we have then a careful, intense analysis by three native North Carolinians of what has taken place is each district including the 1982 election, affecting the ability of blacks to participate equally and to elect representatives of their choice.
Even in House District 23, where a black was elected since 1973, blacks had to make sure that the candidate running was someone who could appeal to white residents because white votes were necessary for the black to be elected.
It was not possible for blacks to get a person elected without extreme single-shot voting, and a candidate who could appeal at least to a limited number of whites.
Unidentified Justice: In what district was that?
Mr. Chambers: House District 23, and that's true as well in House District 21.
So, even in the three districts that the Solicitor General has referred to, as well as the State, blacks do not have and have not had an equal opportunity to participate in the electoral process and to elect representatives of their choice.
Unidentified Justice: In single member districts you're only going to be able to vote for one candidate?
Mr. Chambers: Your Honor, that is correct, but you are still able to ensure that you can determine the outcome of that candidate, you can ensure that that candidate is accessible and accountable, and that is what Congress was trying to obtain with the amended Section 2, to make sure that blacks have an equal opportunity to participate with whites in the election.
Unidentified Justice: Single-shot voting could never alone elect a black candidate in these multi-member districts?
Mr. Chambers: That is correct, Your Honor.
Unidentified Justice: But, Mr. Chambers, you argue that 52-A is applicable.
Is that because all these findings are to be treated just as questions... findings of fact?
Mr. Chambers: Yes, Your Honor.
I would think that--
Unidentified Justice: Not as mixed questions of law and fact?
Mr. Chambers: --I don't think so, Your Honor.
I would think that under this Court's decision in Anderson versus Bessemer City, that Rule 52 governs the factual determination as well as the ultimate--
Unidentified Justice: Well, they do, historical facts, but don't you think the definition of polarized voting is a legal question?
Mr. Chambers: --Your Honor, I think that the Court has already determined--
Unidentified Justice: That may be, but even so--
--It still is a legal question, is it not?
Mr. Chambers: --The definition may be a legal question.
Unidentified Justice: And that's one of the things that is attacked here.
Mr. Chambers: Well, I think that both the State and Solicitor General are... about the factual determination, whether there was in fact substantial polarized voting.
Unidentified Justice: And only first by disagreeing with the definition they think the district court adopted?
Mr. Chambers: That's correct, Your Honor.
Chief Justice Burger: Did you have anything further, Mr. Attorney General?
Mr. Thornburg: Nothing further, Mr. Chief Justice.
Chief Justice Burger: Thank you, gentlemen.
The case is submitted.