CITY OF NORFOLK, VIRGINIA, ET AL., PETITIONERS V. HERBERT M.
COLLINS, ET AL.

   No. 89-989

   In The Supreme Court Of The United States

   October Term, 1989

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Fourth Circuit

   Brief For The United States As Amicus Curiae

   This brief is filed in response to the Court's invitation to the
Solicitor General to express the views of the United States.

            TABLE OF CONTENTS
   Questions Presented
   Statement
   Discussion
   Conclusion

                          QUESTIONS PRESENTED

   1. Whether a minority group's consistent ability to elect one
representative of choice to a city council elected under an at-large
voting system is necessarily sufficient to defeat a challenge to that
system under Section 2 of the Voting Rights Act, when the minority
group would have the opportunity to elect at least two representatives
if the council were elected from fairly drawn single-member districts.

   2. Whether an at-large electoral system, in which a minority group
has the opportunity to elect candidates of its choice who are not
members of the minority group, but the minority group has no
opportunity to elect candidates of its choice who are members of the
minority group, may be in violation of Section 2 of the Voting Rights
Act.

   3. Whether the court of appeals erred in reversing as clearly
erroneous the district court's finding that no special circumstances
explained the election of several black-preferred candidates to the
City Council in Norfolk after this litigation was filed in 1983.

                               STATEMENT

   1. The City of Norfolk, Virginia uses an at-large system to elect
its city council.  The council has seven members who serve staggered
four-year terms.  Elections are held every two years, with three seats
open one election year and four the next.  Candidates run for all open
seats, and the three (or four) candidates with the most votes win.
Voters may vote for as many candidates as there are open seats, but
they may also vote for fewer.  Pet. App. 3a-4a, 42a.

   Blacks constitute 35% of Norfolk's population and 31% of its voting
age population (Pet. App. 4a).  Until 1968, all members of the council
were white (ibid.).  A black was elected that year, and there has been
at least one black on the council ever since (id. at 4a-5a).  Between
1970 and 1982, black candidates running in four elections in which the
black incumbent was either not up for election or was himself also
running for reelection received a majority of votes from black voters
and lost (id. at 16a).  In 1984, after this suit was filed, a second
black, Foster, was elected, and two blacks have served on the council
simultaneously since then (id. at 5a).  Since 1968, two whites --
Howell and Staylor -- have been elected to the council with majority
black support (Pet. 4).  Howell was elected three times with majority
black support;  Staylor was elected once (ibid.).

   2. Plaintiffs are seven black citizens of Norfolk and the Norfolk
Branch of the NAACP (Pet. App. 2a).  In 1983, they filed this suit
alleging that the at-large method of electing members to the city
council denies black voters an equal opportunity to elect candidates
of their choice in violation of Section 2 of the Voting Rights Act, 42
U.S.C. 1973 (Pet. App. 2a, 3a n.2).

   After a trial, the district court ruled for the City of Norfolk
(Pet. App. 132a-193a), and the Fourth Circuit affirmed (id. at
114a-131a).  This Court vacated and remanded to the Fourth Circuit for
reconsideration in light of Thornburg v. Gingles, 478 U.S. 30 (1986)
(Pet. App. 113a).  In Gingles, this Court held that there are three
preconditions to a finding that an at-large system violates Section 2:
 "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.  * * * Second, the minority group must be
able to show that it is politically cohesive.  * * * 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 * * * -- usually to defeat the minority's preferred
candidate." 478 U.S. at 50-51.  The Fourth Circuit in turn remanded
the case to the district court to decide these issues (Pet. App.
99a-112a).

   3. The district court once again ruled in favor of Norfolk (Pet.
App. 38a-98a).  It found Norfolk's black population sufficiently large
and geographically compact to constitute an effective voting majority
in two single-member districts (id. at 51a).  The court also found
that Norfolk blacks are politically cohesive (id. at 52a).  The court
found, however, that whites voting as a bloc are not usually able to
defeat minority-preferred candidates (ibid.).  In reaching this
conclusion, the court relied on evidence that, since 1968, 11 of the
19 candidates receiving majority black support have won (id. at
66a-67a).  The court also cited evidence that, at all times since
1974, at least two members of the council have been supported by a
majority of black voters (id. at 68a).

   The court rejected plaintiffs' contention that black voters did not
actually favor Howell and Staylor since far more blacks voted for
competing candidates than for them (Pet. App. 70a-72a).  The court
found it more significant that a majority of blacks voted for Howell
and Staylor, that the most influential black civic group endorsed
them, and that some black candidates received less black support than
they did (ibid.).

   The district court also rejected plaintiffs' assertion that only
special circumstances allowed Foster to win a second black seat in
1984 (Pet. App. 76a-79a).  The court acknowledged that the Mayor had
both endorsed Foster and publicly stated that his election might moot
this case (id. at 76a).  The court also noted that a civic group with
which the Mayor was affiliated supported only two candidates (not
including Foster) when three seats were vacant (id. at 78a;  see also
id. at 18a).  The court found, however, that these events had not
produced unusual white support for Foster (id. at 76a-79a).  The court
relied on evidence that the Mayor's decision to support Foster had
predated the lawsuit (id. at 77a).  It also cited evidence that other
black candidates, including one who ran in 1984 without the Mayor's
endorsement, had obtained approximately the same level of white
support as Foster did in 1984 (id. at 77a-78a).

   Finally, the court rejected plaintiffs' contention that the
reelection of black incumbents should be attributed to the special
advantages of incumbency (Pet. App. 80a).  The court found that
incumbency was not critical to black success since nonincumbents
supported by a majority of black voters have also won (ibid.).

   4. a. A divided panel of the court of appeals reversed.  It agreed
with the district court that Norfolk blacks are sufficiently compact
to constitute a voting majority in at least two single-member
districts and that they are politically cohesive (Pet. App. 9a).  It
held that the district court had erred, however, in finding the
absence of legally significant white bloc voting.

   The court concluded that the district court's error stemmed in part
from its finding that Howell and Staylor were minority-preferred
candidates (Pet. App. 9a-15a).  The appellate court held that Howell's
and Staylor's receipt of significantly less minority support than
competing candidates created a presumption that they should not be
considered minority-preferred (id. at 9a-10a).  The evidence cited by
the district court, the Fourth Circuit explained, was insufficient to
show that black voters preferred Howell and Staylor over these other
unsuccessful candidates (id. at 11a).  The court also concluded that
the district court's finding could not be reconciled with the evidence
that the black community did not view Howell and Staylor as their
representatives and the evidence that Howell and Staylor did not
promote issues of concern to the minority community (id. at 11a-13a).

   The court of appeals then proceeded to address the significance of
white bloc voting, with Howell and Staylor no longer counted as
minority successes.  The court found that while black voters have
achieved sustained success in electing one representative, "this case
involves the community's inability to elect a second member until
after the institution of this action" (Pet. App. 15a).  For this
reason, the court explained, the statistics showing that just over
half of the black-supported candidates have won election since 1968
are misleading (ibid.).  To use such statistics to defeat this action,
the court concluded, would place "a stamp of approval on token
representation" (ibid.).

   To avoid this result, the court held that the inquiry into whether
white bloc voting can usually defeat minority-preferred candidates
should be applied to the black community's effort to obtain a second
seat (Pet. App. 15a).  Applying this analysis, the court found that
all black-supported candidates for a second seat between 1968 and 1984
were defeated and that this demonstrated legally significant white
bloc voting (id. at 16a).

   A second black -- Foster -- was elected to the council in 1984, but
the court held that this did not undermine its conclusion (Pet. App.
17a-20a).  The court concluded that the Mayor's unprecedented support
for a second black, his statement that the election of a second black
might moot the case, and the civic coalition's endorsement of two
candidates for three vacancies (leaving a more open field for Foster)
showed that special circumstances accounted for Foster's success (id.
at 18a).  The court held that the district court's finding that these
events had not elicited unusual white support was based on its
mistaken reliance on a comparison between the amount of white support
received by Foster and the amount received by previous black
candidates for the first seat (id. at 18a-19a).  According to the
court of appeals, Foster's white support should have been compared to
that of previous second-seat candidates;  when this comparison was
made, it became clear that Foster's share of the white vote (26.6%)
was nearly twice that of the next highest black second-seat candidate
prior to 1984 (14.0%) (id. at 19a).  That another black candidate in
1984 received almost as much white support as Foster, the court
concluded, reinforced the inference that this litigation had produced
unusual white support for black candidates (ibid.).

   The court also concluded that the ability of black voters to retain
two blacks on the council in 1986 and 1988 resulted from special
circumstances (Pet. App. 21a).  The court attributed the success of
black candidates in these elections to the pendency of this litigation
and to the candidates' incumbency (ibid.).

   b. Judge Chapman dissented.  He agreed with the district court that
Howell and Staylor were minority-preferred candidates (Pet. App.
23a-29a).  The relevant question, according to Judge Chapman, was
whether "the elected candidate can be fairly considered as a
representative of the minority community and not whether such
candidate is the 'most preferred'" (id. at 24a (emphasis in
original)).  Judge Chapman noted that the candidates' positions on
issues of concern to the minority community "has nothing to do with
vote dilution" (id. at 26a), and that he would give "little weight" to
testimony that Howell and Staylor were not viewed as representatives
of the black community (ibid.).  Judge Chapman was also convinced that
the panel's treatment of Howell and Staylor was at least implicitly
related to an assumption that a candidate's race is an important
factor in determining whether he is minority-preferred (id. at
25a-26a).

   Judge Chapman further concluded that even if Howell and Staylor are
not counted as minority-preferred candidates, plaintiffs failed to
prove legally significant racial bloc voting (Pet. App. 30a-34a).  In
Judge Chapman's view, the majority improperly embraced proportional
representation as a Section 2 requirement in focusing on whether
blacks have achieved success in electing a second representative (Pet.
App. 30a).  Judge Chapman would have applied the test of usual defeat
to all contests, not just to those for the second seat (id. at 33a).
Applying this standard, Judge Chapman found that, even excluding
Howell and Staylor, over half of the minority-supported candidates
have been elected to office since 1968 (id. at 34a).

   Judge Chapman also found that Foster's election in 1984 did not
result from special circumstances (Pet. App. 34a-36a).  In concluding
otherwise, Judge Chapman stated, the majority had improperly
restricted the comparison of Foster's white support to that of blacks
who ran for the second seat (id. at 35a).  In Judge Chapman's view,
this comparison shares the same error as the panel's inquiry into
whether blacks are able to elect someone to a second seat:  it
effectively establishes a right to proportional representation
(ibid.).  When compared to all black candidates, Judge Chapman noted,
Foster's white support was not unusual.  Beyond that, Judge Chapman
concluded, the evidence that the level of white support for another
black candidate in 1984 was comparable to the level of white support
for Foster shows that the Mayor's endorsement of Foster did not
produce unusual support for him (ibid.).

   Finally, Judge Chapman concluded that the election of black
incumbents should not be discounted as a special circumstance (Pet.
App. 36a-37a).  Judge Chapman read the panel as holding that when
incumbents are successful and nonincumbents are not, incumbency is
necessarily a special circumstance (id. at 36a).  In Judge Chapman's
view, this reasoning would turn virtually every election into one
involving special circumstances (ibid.).

   c. The court of appeals denied rehearing en banc by an equally
divided vote (Pet. App. 197a).

                              DISCUSSION

   Despite racially polarized voting patterns, black voters in Norfolk
have repeatedly elected at least one representative of their choice to
the city's seven-member council.  The court of appeals determined,
however, that black voters do not have an opportunity -- absent
special circumstances -- to elect a second representative.  Because
blacks would have the potential to elect two representatives under a
fairly drawn single-member district plan, the court of appeals held
that the City's use of an at-large election system dilutes black
voting strength in violation of Section 2.

   Petitioners contend that the court of appeals' inquiry into whether
black voters have an opportunity to elect a second representative is
inconsistent with Gingles and implicitly treats the absence of
proportional representation as a violation of Section 2.  They also
argue that the Howell and Staylor elections and the post-lawsuit
elections show that black voters not only have an opportunity to elect
two representatives of their choice, but have in fact done so.
Finally, they argue that the totality of the circumstances demonstrate
the absence of a Section 2 violation.

   These contentions, while serious, do not warrant this Court's
review.  Although the court of appeals' analysis is not without flaws,
the court's errors, we believe, either do not affect the outcome of
the case or are too closely tied to its particular facts to be of
general significance.  Moreover, there is no conflict among the
circuits on the specific issues presented in this case.  The petition
for a writ of certiorari should therefore be denied.

   That said, we would be remiss in failing to note that, as a general
matter, the courts of appeals appear to be experiencing considerable
difficulty in resolving a wide range of issues surrounding application
of Section 2 of the Voting Rights Act to at-large election systems.
See, e.g., U.S. Amicus Br. in Sanchez v. Bond, petition for cert.
pending, No. 89-353.  It is not insignificant that, in addition to the
Fourth Circuit in this case, another circuit has recently divided
evenly en banc in such a case.  Solomon v. Liberty County, No. 87-3406
(11th Cir. Apr. 5, 1990);  see also Whitfield v. Democratic Party, No.
88-1953 (8th Cir. May 4, 1990) (en banc court evenly divided on
Section 2 challenge to majority vote requirement).  For the reasons
set forth in our amicus filings, we do not believe that either this
case or Sanchez warrants this Court's review.  At the same time, most
voting rights cases are, by their nature, likely to be fact-intensive;
 persistent confusion and division in the circuits -- even on
application of governing principles to particular facts -- may well
call for further guidance from this Court at an appropriate time.

   1. a. The court of appeals properly inquired into whether black
voters have an opportunity to elect a second representative.  That
inquiry is not premised on the notion that Section 2 requires
proportional representation, as petitioners contend.  It is instead
premised on the notion that an at-large system in which the evidence
shows that white voters are willing to elect no more than one
representative who is the choice of black voters is not immune from
Section 2 scrutiny.  Any contrary rule would, as stated by the court
of appeals, "place() a stamp of approval on token representation"
(Pet. App. 15a).  For example, a 15-member city council elected
at-large in a community with a geographically compact, 49% black
population cannot be exempt from Section 2 scrutiny because a single
black-preferred representative is consistently elected.  In the terms
of the statute, the fact that the black community can consistently
elect a single council member would hardly prove that it has the same
opportunity as the majority group "to participate in the political
process and to elect representatives of (its) choice." 42 U.S.C.
1973(b).

   The use of a fairly drawn single-member district plan as a
benchmark for measuring the effect of an at-large system on minority
voting strength is at the heart of Gingles.  There, the Court held
that "(t)he single-member district is generally the appropriate
standard against which to measure minority group potential to elect."
478 U.S. at 50 n.17.  It follows from this holding that, where the
minority group challenging an at-large electoral system has shown that
it is unable to elect as many representatives as it could in fairly
drawn single-member districts, and where the defendant has failed to
rebut this showing, a Section 2 violation can be made out.  Cf.
Gingles, 478 U.S. at 90-91 (O'Connor, J., concurring in the judgment).

   The use of a single-member district plan as the benchmark for
measuring undiluted voting strength is far different from a
proportional representation standard.  As was explained in Gingles,
"(This standard) thus would only protect racial minority votes from
diminution proximately caused by the districting plan;  it would not
assure racial minorities proportional representation." 478 U.S. at 51
n.17 (quotation marks and emphasis omitted).  The Fourth Circuit has
expressly recognized this distinction.  See McGhee v. Granville
County, 860 F.2d 110 (4th Cir. 1988) (rejecting a Section 2 challenge
to a fairly drawn single-member district plan even though it afforded
minority voters far less than proportional representation).

   b. While the court of appeals properly sought to assess the
opportunity of blacks to elect a second representative, it
artificially narrowed its focus to contests for a second seat.  A
minority group's repeated success in electing one representative can
be persuasive evidence that it fully participates in the electoral
process and has an opportunity to elect a second representative as
well.  The force of this evidence is not necessarily dissipated by
evidence that the minority group has been unsuccessful in actually
electing a second representative.  The lack of success could be
explained by factors other than the unyielding resistance of whites to
a second representative, such as the characteristics of a particular
candidate or the circumstances surrounding a particular election.
Because the court of appeals did not expressly consider all the
evidence bearing on the opportunity of blacks to elect a second
representative -- including the unquestioned and consistent success of
blacks in electing at least one representative to the council -- its
analysis of the "totality of circumstances" (42 U.S.C. 1973(b)) was
incomplete.

   It is unclear, however, that a more complete analysis would have
affected the outcome of this case.  The evidence shows that between
1970 and 1982, black voters made four unsuccessful attempts to elect a
second black to the council.  These second-seat candidates received
just 8% to 14% of the white vote, for an average of 11%.  In contrast,
black candidates for the first seat received between 22% and 32% of
the white vote, for an average of 27% (Pet. App. 16a, 208a-217a).
This wide and repeated disparity between white support for first-seat
candidates and white support for second-seat candidates is significant
evidence that black voters in fact did not have an opportunity to
elect a second representative before the filing of this suit.
Petitioners have pointed to nothing in the record about the
characteristics of the second-seat candidates or the circumstances of
these elections that adequately explains this white voting behavior,
leaving the opposition of whites to a second black representative as
the most persuasive explanation.

   c. Petitioners contend that black voters have still elected more
than half of their preferred candidates and that plaintiffs therefore
failed to prove usual defeat as required by Gingles.  This argument is
misguided.  Petitioners approach the usual defeat inquiry as if it
involved nothing more than a strict mathematical count of past wins
and losses, with more losses than wins being an essential element of
plaintiffs' case.  Petitioners' mathematical model, however, produces
a distorted picture.

   Under petitioners' method of calculating a minority group's
opportunity to elect, there would be no violation as long as
first-seat successes outnumber second-seat losses, regardless of
whether the evidence undeniably shows that there is no opportunity to
elect a second candidate.  As the court of appeals explained, to
accept such evidence as conclusive proof of the absence of a violation
would "place() a stamp of approval on token representation" (Pet. App.
15a).  It is significant that blacks in Norfolk can elect a candidate
of their choice to the city council.  But there are seven members on
the council, and if discriminatory voting patterns account for the
inability of blacks to elect more than one candidate -- in the absence
of special circumstances -- then their success in electing one is no
answer.  If the political reality is that black voters have been
relegated to a token seat, and that they have no real opportunity for
increased representation, it would be inconsistent with the goals of
Section 2 to mask this reality by melding first-seat and second-seat
elections and concluding that there is no violation because blacks
have won (consistently, for the first seat) more often than they have
lost (consistently, for the second seat).  Nothing in Gingles or
common sense requires such a result.

   To the contrary, as we have shown, the relevant inquiry under
Gingles is whether blacks have an opportunity to elect a second
representative.  First-seat elections can inform that inquiry.  When
other evidence is more convincing, however, the first-seat elections
can properly be discounted.

   2. Petitioners contend, however, that the at-large election system
does not limit black voters to token representation.  In particular,
they point to the elections of Howell and Staylor as evidence that
blacks have elected at least two candidates of choice to the council
since 1974.  According to petitioners, the court of appeals plainly
erred when it refused to find that Howell and Staylor were
minority-preferred.

   Gingles does not expressly address how to decide whether a
candidate is minority-preferred.  This Court's discussion of how to
prove political cohesion, however, suggests the proper approach.  One
way to prove political cohesion, this Court held, is to show that "a
significant number of minority group members usually vote for the same
candidates." 478 U.S. at 56.  This definition of political cohesion
implies that there is no great mystery about how to identify
minority-preferred candidates:  they are simply those for whom a
significant number of minority group members vote.

   This is not to suggest that every candidate who receives more than
50% of the black vote is necessarily a candidate of choice.  But
Howell and Staylor did not receive bare majority support from blacks;
black support for these white candidates ranged from almost 57% to
approximately 73% (Pet. 4).  Generally, support of these proportions
should be sufficient to establish that a candidate has received bloc
support and is therefore a candidate of choice.

   The court of appeals concluded that Howell and Staylor were not
minority-preferred primarily because competing candidates received a
significantly higher percentage of the black vote and lost (Pet. App.
9a-15a).  The court reasoned that black voters preferred these other
candidates, rather than Howell and Staylor.  /1/ The flaw in this
reasoning is that the candidates did not compete for only one
position.  Each election had at least three vacancies.  Accordingly,
blacks could potentially have had at least three candidates of choice.
 In these circumstances, it makes little sense to say that someone
cannot be a candidate of choice solely because another candidate
receives a significantly higher percentage of the black vote.  In such
multiple vacancy elections, if three candidates receive minority bloc
support, it would generally seem fair to conclude that they are all
candidates of choice.  See Citizens for a Better Gretna v. City of
Gretna, 834 F.2d 496, 502 (5th Cir. 1987) (recognizing more than one
minority-preferred candidate in multiple-seat election), cert. denied,
109 S. Ct. 3213 (1989).

   We nonetheless believe that there were sufficient grounds for the
court of appeals' conclusion that the elections of Howell and Staylor
did not demonstrate the absence of a Section 2 violation.  That is
because, as previously discussed, there is a clear pattern of defeat
of candidates who are black and ran for a second seat between 1970 and
1982;  at best, the elections of Howell and Staylor show that the
minority voters had the opportunity to fill the second seat with a
candidate of their choice so long as that candidate was white.  /2/ As
we have explained in our Brief as Amicus Curiae in Sanchez v. Bond,
No. 89-353, while a candidate of choice of a minority group need not
be a member of that group, an electoral system that restricts the
opportunity of a minority group to elect candidates of choice who are
members of the group violates Section 2 (Br. 13-14).  Thus, while we
do not embrace the court of appeals' reasoning on this issue, its
ultimate conclusion that the Howell and Staylor elections do not
suggest the absence of a Section 2 violation does not warrant this
Court's review.

   Contrary to the contention of petitioners, there is no conflict
between the decision in this case and the result reached by the Fifth
Circuit in City of Gretna.  In Gretna, the Fifth Circuit held that a
black candidate who received 67% of the black vote and lost was a
minority-preferred candidate even though two competing white
candidates who may have received 70% of the black vote won.  834 F.2d
at 502 & n.14.  The court further held, however, that the success of
the two white candidates did not establish the absence of legally
significant white bloc voting.  The court explained that
"(s)ignificance lies in the fact that the black candidate preferred by
the minority was defeated by white bloc voting.  That blacks also
support white candidates acceptable to the majority does not negate
instances in which white votes defeat a black preference." Id. at 502.
 As this discussion shows, the Fifth Circuit's result, although not
its reasoning, is congruent with the result reached in this case;  the
success of blacks in electing white candidates to a second seat cannot
rebut a clear showing that blacks have had no opportunity to elect
black candidates to that seat.

   3. Petitioners next contend that Foster's election in 1984 and the
subsequent reelection of black candidates in 1986 and 1988 are
sufficient to show that blacks enjoy an equal opportunity to elect
candidates of their choice.  This fact-bound contention does not
warrant this Court's review.

   a. Petitioners initially contend that the court of appeals' finding
that this litigation produced unusual white support for Foster is
based on an unduly restricted comparison to the white support for
previous second-seat candidates.  In petitioners' view, that analysis
is premised on the same proportional representation standard that led
the court to assess the opportunity of blacks to elect a second
representative.  For reasons already discussed, this criticism is
misdirected.  Given the propriety of the second-seat inquiry and the
significant difference between white support for previous first- and
second-seat candidates, the court of appeals properly compared
Foster's white support to that of the previous second-seat candidates.
 Because Foster received significantly more white support than
previous black second-seat candidates, the court plausibly viewed
Foster's white support as unusual, and the district court's contrary
finding as clearly erroneous.

   This conclusion, however, does not exhaust the special
circumstances inquiry.  It is also necessary to determine whether this
unusual support is an artifact of the pending litigation or whether it
reflects a more permanent change in the political climate in Norfolk.
The evidence on this issue is inconclusive.  On the one hand, the
evidence that no black candidate was elected to a second seat until
after this suit was filed, together with the evidence that the Mayor
publicly stated that the election of a second black might moot the
case and the civic group's endorsement of only two candidates for the
three open seats in 1984, suggest that Foster's unusual support was a
product of the litigation.  On the other hand, the evidence that the
Mayor's support for Foster predated this suit, and that black voters
have now elected and reelected two black representatives through three
successive elections, suggest that a more permanent shift in the
political climate may be at work.  The rest of the evidence can
plausibly support either inference (compare Pet. App. 19a with id. at
35a).

   Accordingly, after identifying the district court's error in
failing to treat Foster's support from white voters as unusual, a
proper application of Rule 52 of the Federal Rules of Civil Procedure
should have led the court of appeals to remand for a new finding on
whether Foster's unusual support was caused by the litigation or
reflected a more permanent shift in the Norfolk political climate.
See Pullman-Standard v. Swint, 456 U.S. 273 (1982).  Because the court
of appeals purported to apply the clearly erroneous standard, however,
and because the manner in which it did so does not have any importance
outside of this case, the court of appeals' treatment of Foster's
election does not warrant this Court's review.

   b. For similar reasons, the question whether the court of appeals
properly treated incumbency as a factor that contributed to the
retention of two blacks on the council in 1986 and 1988 is not worthy
of this Court's review.  Under Gingles, incumbency is among the
factors that may justify a finding that the election of a
minority-supported candidate is due to special circumstances.  478
U.S. at 57.  The importance of incumbency in a particular case,
however, is a factual issue governed by the clearly erroneous
standard.  Here, while it is plausible that the candidates' incumbency
(along with the pendency of the litigation) explains the 1986 and 1988
ability of blacks to retain two seats on the council, it is equally
plausible that blacks now enjoy an opportunity to elect a second
representative of their choice to the council.  They have, after all,
done so in three successive elections.  Accordingly, the court of
appeals should not have substituted its judgment for that of the
district court on this issue.  Because this issue is so fact-bound and
is unlikely to have any significance beyond this case, however, it too
does not warrant this Court's review.  /3/

   4. Finally, petitioners contend that the court of appeals
improperly reversed the district court's finding that the totality of
the circumstances demonstrates the absence of a Section 2 violation.
Here, however, the district court's ultimate finding depended on its
treatment of the Howell, Staylor, and post-litigation elections.  Once
its findings on those elections were set aside, there was no longer
any basis for the district court's ultimate finding.  As petitioners
contend (Pet. 28), this Court did not hold in Gingles that the only
way a defendant may defeat a Section 2 claim is to show that one of
the Gingles factors has not been proven.  But in this case,
petitioners point to no other circumstance that would justify a
finding of no violation.  /4/ Thus, petitioners' argument on this
issue collapses into their arguments on the other issues.  For the
reasons already discussed, those contentions do not warrant this
Court's review.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   JOHN R. DUNNE

      Assistant Attorney General

   JOHN G. ROBERTS, JR.

      Deputy Solicitor General

   ROGER CLEGG

      Deputy Assistant Attorney General

   JAMES A. FELDMAN

      Assistant to the Solicitor General

   JESSICA DUNSAY SILVER

   IRVING GORNSTEIN

      Attorneys

   MAY 1990

   /1/ Petitioners' contention (Pet. 16 n.20, 22) that the court of
appeals' opinion "seems to incorporate the notion that black voters
must achieve proportional representation with black candidates" (Pet.
22 (emphasis in original)) is mistaken.  The court of appeals
expressly refrained from deciding whether the race of the candidate is
significant in determining who is a "candidate of choice" of the
minority group.  Pet. App. 8a n.7.  In fact, as Judge Chapman
recognized in his dissent, the panel did not object to counting Howell
as a black-preferred candidate in one of her bids for election.  See
Pet. App. 24a-25a.  Although the portion of the court's opinion
addressing the Howell and Staylor victories (id. at 9a-15a) does seem
to rest on the assumption (incorrect, in our view) that minority
voters may have only one defeated candidate of choice in a
multiple-seat election, it does not rest on the assumption (also
incorrect, in our view) that any candidate of choice of minority
voters must be a member of the minority group.

   /2/ As explained above (p. 11), although black candidates for the
second seat received an average of just 11% of the white vote, black
candidates for the first seat received an average of 27% of the white
vote.  It is this decline in the white vote for second-seat black
candidates -- a decline for which petitioners offer no explanation --
that made it impossible for such candidates to be elected between 1970
and 1982.

   /3/ Petitioners contend (Pet. 27-28) that the court of appeals
improperly treated all election successes involving incumbents as
special circumstances elections.  While there is some ambiguity on
this point, we read the court's discussion of incumbency as limited to
the ability of blacks to elect and retain a second representative on
the council (Pet. App. 5a, 20a-21a).  There is no other way to explain
the court's finding (Pet. App. 15a) that "this action would border on
the frivolous" if the claim could have been defeated by showing that
blacks had "the ability to elect a single candidate to the council."

   /4/ The en banc Eleventh Circuit has recently divided evenly
concerning the relationship between a finding that the three Gingles
factors were proven in a given case and an ultimate "totality of the
circumstances" finding of a Section 2 violation.  See Solomon v.
Liberty County, No. 87-3406 (Apr. 5, 1990).  The question that divided
the Eleventh Circuit in Solomon, however, is largely irrelevant in
this case.  The Solomon court was unanimous in holding that a
plaintiff can make out a Section 2 violation simply by proving the
existence of the three Gingles factors.  See slip op. 2599 (Kravitch,
J., specially concurring), 2615 (Tjoflat, C.J., specially concurring).
 The court, however, was unable to agree on whether a defendant may
rebut a showing of the existence of the three Gingles factors by
showing that a neutral explanation, relying on objective factors,
demonstrates that "the voting community is not driven by racial bias."
Id. at 2616 (Tjoflat, C.J., specially concurring);  see id. at 2593
n.3 (Kravitch, J., specially concurring).  In this case, however,
although petitioners generally assert (Pet. 28) that the Fourth
Circuit did not give proper deference to the district court's
"totality of the circumstances" finding, they do not assert that they
proffered a neutral, non-racial explanation for the racially polarized
voting in Norfolk, or that the Fourth Circuit, having found the
existence of legally significant racially polarized voting, erred in
failing to recognize that such voting in this case was not the result
of racial bias.  This case, therefore, does not raise the issue that
divided the Eleventh Circuit in Solomon.