Thornburg v. Gingles

478 U.S. 30

Case Year: 1986

Case Ruling: 9-0, Affirmed in Part and, Reversed in Part

Opinion Justice: Brennan

More Information

Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Blackmun, Burger, Marshall, O'Connor, Powell, Rehnquist, Stevens, White


1st Concurring Opinion

Author: White


1st Dissenting Opinion

Author: Stevens in Part


2nd Concurring Opinion

Author: O'Connor


2nd Dissenting Opinion



3rd Concurring Opinion

Author: Stevens in Part


3rd Dissenting Opinion



Other Concurring Opinions:


In 1982, the North Carolina legislature enacted a redistricting plan for its House and Senate. The plan included the use of several multimember districts. Ralph Gingles, along with other black registered North Carolina voters, challenged a number of the districts on the grounds that the redistricting plan impaired the voting power of blacks, in violation of section 2 of the Voting Rights Act of 1965. Section 2 had been amended by Congress to make clear that a violation could be proven solely by showing discriminatory effect. Thus, the discriminatory results of a state action--rather than discriminatory intent--were to be the applicable standard. The district court reached a number of findings, including: 1) the state of North Carolina had a long history of discriminating against black voters; 2) historic discrimination in the areas of education, housing, employment, and health services had resulted in a lower socioeconomic status for black North Carolinians compared to that of whites; 3) several state voting procedures existed that reduced the opportunity of black voters to elect candidates of their choice; 4) white candidates in North Carolina had had a history of encouraging voting along racial lines; 5) black candidates generally had been unsuccessful at winning statewide office, and had been only slightly more successful at the local level; and 6) in the districts challenged in this suit, racially polarized voting was persistent and severe. Based on these findings, the district court ruled in favor of the legal challenge to the redistricting law. North Carolina appealed.



This case requires that we construe for the first time section 2 of the Voting Rights Act of 1965, as amended June 29, 1982. The specific question to be decided is whether the three-judge District Court ... correctly held that the use in a legislative redistricting plan of multimember districts in five North Carolina legislative districts violated section 2 by impairing the opportunity of black voters "to participate in the political process and to elect representatives of their choice."...


Background (omitted)


Section 2 and Vote Dilution Through Use of Multimember Districts

An understanding both of section 2 and of the way in which multimember districts can operate to impair blacks' ability to elect representatives of their choice is prerequisite to an evaluation of appellants' contentions. First, then, we review amended section 2 and its legislative history in some detail. Second, we explain the theoretical basis for appellees' claim of vote dilution.


Section 2 and Its Legislative History

Subsection 2(a) prohibits all States and political subdivisions from imposing any voting qualifications or prerequisites to voting, or any standards, practices, or procedures which result in the denial or abridgment of the right to vote of any citizen who is a member of a protected class of racial and language minorities. Subsection 2(b) establishes that section 2 has been violated where the "totality of circumstances" reveal that "the political processes leading to nomination or election ... are not equally open to participation by members of a [protected class] ... in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." While explaining that "[t]he extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered" in evaluating an alleged violation, 2(b) cautions that "nothing in [2] establishes a right to have members of a protected class elected in numbers equal to their proportion in the population."

The Senate Report which accompanied the 1982 amendments elaborates on the nature of section 2 violations and on the proof required to establish these violations. First and foremost, the Report dispositively rejects the position of the plurality in Mobile v. Bolden (1980), which required proof that the contested electoral practice or mechanism was adopted or maintained with the intent to discriminate against minority voters.... The intent test was repudiated for three principal reasons--it is "unnecessarily divisive because it involves charges of racism on the part of individual officials or entire communities," it places an "inordinately difficult" burden of proof on plaintiffs, and it "asks the wrong question."... The "right" question, as the Report emphasizes repeatedly, is whether "as a result of the challenged practice or structure plaintiffs do not have an equal opportunity to participate in the political processes and to elect candidates of their choice."... In order to answer this question, a court must assess the impact of the contested structure or practice on minority electoral opportunities "on the basis of objective factors."... The Senate Report specifies factors which typically may be relevant to a section 2 claim: the history of voting-related discrimination in the State or political subdivision; the extent to which voting in the elections of the State or political subdivision is racially polarized; the extent to which the State or political subdivision has used voting practices or procedures that tend to enhance the opportunity for discrimination against the minority group, such as unusually large election districts, majority vote requirements, and prohibitions against bullet voting; the exclusion of members of the minority group from candidate slating processes; the extent to which minority group members bear the effects of past discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process; the use of overt or subtle racial appeals in political campaigns; and the extent to which members of the minority group have been elected to public office in the jurisdiction.... The Report notes also that evidence demonstrating that elected officials are unresponsive to the particularized needs of the members of the minority group and that the policy underlying the State's or the political subdivision's use of the contested practice or structure is tenuous may have probative value.... The Report stresses, however, that this list of typical factors is neither comprehensive nor exclusive. While the enumerated factors will often be pertinent to certain types of section 2 violations, particularly to vote dilution claims, other factors may also be relevant and may be considered.... Furthermore, the Senate Committee observed that "there is no requirement that any particular number of factors be proved, or that a majority of them point one way or the other."... Rather, the Committee determined that "the question whether the political processes are 'equally open' depends upon a searching practical evaluation of the `past and present reality,'" ... and on a "functional" view of the political process....

Although the Senate Report espouses a flexible, fact-intensive test for section 2 violations, it limits the circumstances under which section 2 violations may be proved in three ways. First, electoral devices, such as at-large elections, may not be considered per se violative of section 2. Plaintiffs must demonstrate that, under the totality of the circumstances, the devices result in unequal access to the electoral process.... Second, the conjunction of an allegedly dilutive electoral mechanism and the lack of proportional representation alone does not establish a violation.... Third, the results test does not assume the existence of racial bloc voting; plaintiffs must prove it....


Vote Dilution Through the Use of Multimember Districts

Appellees contend that the legislative decision to employ multimember, rather than single-member, districts in the contested jurisdictions dilutes their votes by submerging them in a white majority, thus impairing their ability to elect representatives of their choice.

.... This Court has long recognized that multimember districts and at-large voting schemes may "`operate to minimize or cancel out the voting strength of racial [minorities in] the voting population.'" Burns v. Richardson (1966) (quoting Fortson v. Dorsey (1965)).... The theoretical basis for this type of impairment is that where minority and majority voters consistently prefer different candidates, the majority, by virtue of its numerical superiority, will regularly defeat the choices of minority voters.... Multimember districts and at-large election schemes, however, are not per se violative of minority voters' rights.... Minority voters who contend that the multimember form of districting violates section 2 must prove that the use of a multimember electoral structure operates to minimize or cancel out their ability to elect their preferred candidates....

While many or all of the factors listed in the Senate Report may be relevant to a claim of vote dilution through submergence in multimember districts, unless there is a conjunction of the following circumstances, the use of multimember districts generally will not impede the ability of minority voters to elect representatives of their choice. Stated succinctly, a bloc voting majority must usually be able to defeat candidates supported by a politically cohesive, geographically insular minority group.... These circumstances are necessary preconditions for multimember districts to operate to impair minority voters' ability to elect representatives of their choice for the following reasons. First, the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district. If it is not, as would be the case in a substantially integrated district, the multimember form of the district cannot be responsible for minority voters' inability to elect its candidates.... Second, the minority group must be able to show that it is politically cohesive. If the minority group is not politically cohesive, it cannot be said that the selection of a multimember electoral structure thwarts distinctive minority group interests.... Third, the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it--in the absence of special circumstances, such as the minority candidate running unopposed ... --usually to defeat the minority's preferred candidate.... In establishing this last circumstance, the minority group demonstrates that submergence in a white multimember district impedes its ability to elect its chosen representatives.

Finally, we observe that the usual predictability of the majority's success distinguishes structural dilution from the mere loss of an occasional election....


Racially Polarized Voting

Having stated the general legal principles relevant to claims that section2 has been violated through the use of multimember districts, we turn to the arguments of appellants and of the United States as amicus curiae addressing racially polarized voting....

The Standard for Legally Significant Racial Bloc Voting

The Senate Report states that the "extent to which voting in the elections of the state or political subdivision is racially polarized" ... is relevant to a vote dilution claim. Further, courts and commentators agree that racial bloc voting is a key element of a vote dilution claim.... Because ... the extent of bloc voting necessary to demonstrate that a minority's ability to elect its preferred representatives is impaired varies according to several factual circumstances, the degree of bloc voting which constitutes the threshold of legal significance will vary from district to district. Nonetheless, it is possible to state some general principles and we proceed to do so.

The purpose of inquiring into the existence of racially polarized voting is twofold: 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 candidates.... Thus, the question whether a given district experiences legally significant racially polarized voting requires discrete inquiries into minority and white voting practices. A showing that a significant number of minority group members usually vote for the same candidates is one way of proving the political cohesiveness necessary to a vote dilution claim, ... and, consequently, establishes minority bloc voting within the context of section 2. And, in general, a white bloc vote that normally will defeat the combined strength of minority support plus white "crossover" votes rises to the level of legally significant white bloc voting.... The amount of white bloc voting that can generally "minimize or cancel" ... black voters' ability to elect representatives of their choice, however, will vary from district to district according to a number of factors, including the nature of the allegedly dilutive electoral mechanism; the presence or absence of other potentially dilutive electoral devices, such as majority vote requirements, designated posts, and prohibitions against bullet voting; the percentage of registered voters in the district who are members of the minority group; the size of the district; and, in multimember districts, the number of seats open and the number of candidates in the field....

Because loss of political power through vote dilution is distinct from the mere inability to win a particular election, ... a pattern of racial bloc voting that extends over a period of time is more probative of a claim that a district experiences legally significant polarization than are the results of a single election.... Also for this reason, in a district where elections are shown usually to be polarized, the fact that racially polarized voting is not present in one or a few individual elections does not necessarily negate the conclusion that the district experiences legally significant bloc voting. Furthermore, the success of a minority candidate in a particular election does not necessarily prove that the district did not experience polarized voting in that election; special circumstances, such as the absence of an opponent, incumbency, or the utilization of bullet voting, may explain minority electoral success in a polarized contest.

As must be apparent, the degree of racial bloc voting that is cognizable as an element of a section 2 vote dilution claim will vary according to a variety of factual circumstances. Consequently, there is no simple doctrinal test for the existence of legally significant racial bloc voting. However, the foregoing general principles should provide courts with substantial guidance in determining whether evidence that black and white voters generally prefer different candidates rises to the level of legal significance under section 2.... We conclude that the District Court's approach, which tested data derived from three election years in each district, and which revealed that blacks strongly supported black candidates, while, to the black candidates' usual detriment, whites rarely did, satisfactorily addresses each facet of the proper legal standard....

Race of Candidate as Primary Determinant of Voter Behavior

North Carolina's and the United States' suggestion that racially polarized voting means that voters select or reject candidates principally on the basis of the candidate's race is ... misplaced.

... [B]oth the language of section 2 and a functional understanding of the phenomenon of vote dilution mandate the conclusion that the race of the candidate per se is irrelevant to racial bloc voting analysis. Section 2(b) states that a violation is established if it can be shown that members of a protected minority group "have less opportunity than other members of the electorate to ... elect representatives of their choice." Because both minority and majority voters often select members of their own race as their preferred representatives, it will frequently be the case that a black candidate is the choice of blacks, while a white candidate is the choice of whites.... Indeed, the facts of this case illustrate that tendency--blacks preferred black candidates, whites preferred white candidates. Thus, as a matter of convenience, we and the District Court may refer to the preferred representative of black voters as the "black candidate" and to the preferred representative of white voters as the "white candidate." Nonetheless, the fact that race of voter and race of candidate is often correlated is not directly pertinent to a section 2 inquiry. Under section 2, it is the status of the candidate as the chosen representative of a particular racial group, not the race of the candidate, that is important....

Racial Animosity as Primary Determinant of Voter Behavior

Finally, we reject the suggestion that racially polarized voting refers only to white bloc voting which is caused by white voters' racial hostility toward black candidates. To accept this theory would frustrate the goals Congress sought to achieve by repudiating the intent test of Mobile v. Bolden (1980), and would prevent minority voters who have clearly been denied an opportunity to elect representatives of their choice from establishing a critical element of a vote dilution claim.

In amending section 2, Congress rejected the requirement announced by this Court in Bolden that section 2 plaintiffs must prove the discriminatory intent of state or local governments in adopting or maintaining the challenged electoral mechanism. Appellants' suggestion that the discriminatory intent of individual white voters must be proved in order to make out a section 2 claim must fail for the very reasons Congress rejected the intent test with respect to governmental bodies....

Focusing on the discriminatory intent of the voters, rather than the behavior of the voters, also asks the wrong question. All that matters under section 2 and under a functional theory of vote dilution is voter behavior, not its explanations. Moreover, as we have explained in detail, ... requiring proof that racial considerations actually caused voter behavior will result--contrary to congressional intent--in situations where a black minority that functionally has been totally excluded from the political process will be unable to establish a section 2 violation.... We therefore decline to adopt such a requirement.


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


The Legal Significance of Some Black Candidates' Success

... Nothing in the statute or its legislative history prohibited the court from viewing with some caution black candidates' success in the 1982 election, and from deciding on the basis of all the relevant circumstances to accord greater weight to blacks' relative lack of success over the course of several recent elections. Consequently, we hold that the District Court did not err, as a matter of law, in refusing to treat the fact that some black candidates have succeeded as dispositive of appellees' section 2 claim. Where multimember districting generally works to dilute the minority vote, it cannot be defended on the ground that it sporadically and serendipitously benefits minority voters....

The judgment of the District Court is

Affirmed in part and reversed in part.


In this case, we are called upon to construe section 2 of the Voting Rights Act of 1965, as amended June 29, 1982. Amended section 2 is intended to codify the "results" test employed in Whitcomb v. Chavis (1971), and White v. Regester(1973), and to reject the "intent" test propounded in the plurality opinion in Mobile v. Bolden (1980). Whereas Boldenrequired members of a racial minority who alleged impairment of their voting strength to prove that the challenged electoral system was created or maintained with a discriminatory purpose and led to discriminatory results, under the results test, "plaintiffs may choose to establish discriminatory results without proving any kind of discriminatory purpose."... At the same time, however, section 2 unequivocally disclaims the creation of a right to proportional representation. This disclaimer was essential to the compromise that resulted in passage of the amendment....

In construing this compromise legislation, we must make every effort to be faithful to the balance Congress struck. This is not an easy task. We know that Congress intended to allow vote dilution claims to be brought under section 2, but we also know that Congress did not intend to create a right to proportional representation for minority voters. There is an inherent tension between what Congress wished to do and what it wished to avoid, because any theory of vote dilution must necessarily rely to some extent on a measure of minority voting strength that makes some reference to the proportion between the minority group and the electorate at large. In addition, several important aspects of the "results" test had received little attention in this Court's cases or in the decisions of the Courts of Appeals employing that test on which Congress also relied.... Specifically, the legal meaning to be given to the concepts of "racial bloc voting" and "minority voting strength" had been left largely unaddressed by the courts when section 2 was amended.

The Court attempts to resolve all these difficulties today. First, the Court supplies definitions of racial bloc voting and minority voting strength that will apparently be applicable in all cases and that will dictate the structure of vote dilution litigation. Second, the Court adopts a test, based on the level of minority electoral success, for determining when an electoral scheme has sufficiently diminished minority voting strength to constitute vote dilution. Third, although the Court does not acknowledge it expressly, the combination of the Court's definition of minority voting strength and its test for vote dilution results in the creation of a right to a form of proportional representation in favor of all geographically and politically cohesive minority groups that are large enough to constitute majorities if concentrated within one or more single-member districts. In so doing, the Court has disregarded the balance struck by Congress in amending section 2 and has failed to apply the results test as described by this Court in Whitcomb and White....

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

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