Jurisdictional Statement on Behalf of the Smallwood Appellants

    IVED 
Supreme Court of the te RSTates, tre. 

JAMES B. HUNT, JR, ethl, MAY 19 200 
ellants, 

OFFICE OF THE CLERK 
and SUPREME COURT, US. 

ALFRED SMALLWOOD, - 

Appellant-Intervenors, 

V. 

MARTIN CROMARTIE, ef al., 

Appellees. 

On Appeal from United States District Court 

for the Eastern District of North Carolina 

JURISDICTIONAL STATEMENT ON BEHALF OF 
THE SMALLWOOD APPELLANTS 

ELAINE R. JONES Topp A. Cox* 

DIRECTOR-COUNSEL NAACP LEGAL DEFENSE & 

EDUCATIONAL FUND, INC. 

1444 Eye Street, N.W. 

10th Floor 

NORMAN J. CHACHKIN 

JACQUELINE A. BERRIEN 

NAACDIuoAL DeransE © Washington, D.C. 20003 
EDUCATIONAL FUND, INC. (202) 682-1300 

99 Hudson Street 

Suite 1600 ADAM STEIN 

New York, NY 10013 Ferguson, Stein, Wallas, Adkins, 

(212) 219-1900 Gresham & Sumter, P.A. 

312 West Franklin Street 

Chapel Hill, NC 27516 

(919) 933-5300 

*Counsel of Record 

Attorneys for Appellant-Intervenors 

PRESS OF BYRON S. ADAMS + WASHINGTON, D.C. 4 1-800-347-8208  



    

  
  
 



  

1 

QUESTIONS PRESENTED 

Is a state congressional district subject to strict scrutiny 
under the Equal Protection Clause simply because it is 

slightly irregular in shape and contains a higher 
proportion of minority voters than adjacent districts, 
when (a) it is not a majority-minority district, (b) it 
complies with all of the race-neutral districting criteria 
the state adopted to govern the design of the entire 
apportionment plan, and (c) there is neither direct nor 
compelling evidence that race was the predominant 
factor in its design? 

In a challenge to a state congressional district, brought 

under the jurisprudence established by this Court in 
Shaw v. Reno and its progeny, is an inference drawn 
from the challenged district’s shape and racial 
demographics, standing alone, sufficient to support a 
finding for the plaintiffs on the contested issue of the 
predominance of racial motives in the district’s design, 
when it is directly contradicted by the testimony of the 
legislators who drew the district and evidence that the’ 
district conforms with the state’s articulated 
redistricting criteria? 

Following a finding of unconstitutionality in a challenge 
to a state congressional district, brought under the 
jurisprudence established by this Court in Shaw v. Reno 
and its progeny, is it an abuse of discretion for a district 
court to order the state to conduct redistricting 

immediately when redistricting would cause disruption 

to ongoing election processes and when redistricting 
will occur anew following the imminent release of the 
2000 Census data? 

 



  

il 

PARTIES TO THE PROCEEDINGS 

Actual parties to the proceeding in the United States 
District Court were: 

(1) James B. Hunt, Jr., in his capacity as Governor 

of the State of North Carolina, Dennis Wicker in his official 

capacity as Lieutenant Governor of the State of North Carolina, 
Harold Brubaker in his official capacity as Speaker of the North 
Carolina House of Representatives, Elaine Marshall in her 

official capacity as Secretary of the State of North Carolina, and 
Larry Leake, S. Katherine Burnette, Faiger Blackwell, Dorothy 
Presser and June Youngblood in their capacity as the North 
Carolina State Board of Elections, defendants, appellants 

herein, 

2) Alfred Smallwood, David Moore, William M. 
Hodges, Robert L. Davis, Jr., Jan Valder, Barney Offerman, 

Virginia Newell, Charles Lambeth and George Simkins, 
defendant-intervenors, appellant-intervenors herein, 

3) Martin Cromartie, Thomas Chandler Muse, R.O. 
Everett, J.H. Froelich, James Ronald Linville, Susan Hardaway, 

Robert Weaver and Joel K. Bourne, plaintiffs, appellees herein. 

    

 



  

  

111 

TABLE OF CONTENTS 

Page 

QUESTIONS PRESENTED... ....... 0. ovine vuiviitas 1 

PARTIES TO THE PROCEEDINGS... . ..utvi. ous... il 

TABLEOFPAUTHORITIES ..........0.. ...c.o 5 v 

OPINIONS BELOW : 0 citi 1 

JURISDICTION . .... 0 iu iid i sbidi sis, 1 

VOLVED: oe i. ve, TS 2 

STATEMENTOFTHECASE .....005 vec iioals 2 

A. The Challenge to the Current Plan ....... 2 

B. Appeal of the Summary Judgment 
DECISION 7 se en a 6 

C District Court Trial on 

Remand... .....o 00 0 0k ii. nas 8 

ApPeal i ls Sele 12 

REASONS FOR NOTING PROBABLE 
JURISDICTION z..a. of oa. 16 

I The Court Erred by Effectively Holding that Race 
Consciousness Triggers “Strict Scrutiny” ...... 17



  

Vv 

II. The District Court Erred by Failing to Determine 
Whether the State had a Compelling Justification for 
Creating a Narrowly Tailored District 12 ....... 22 

III. The District Court Erred in Ordering Redistricting on 

the Eve of the Post-2000 Redistricting Cycle .... 24 

CONCLUSION. 0. lst isc i i ta eit ia 28 

    

 



ne 

or 

22 

On 

24 

28 

  

  

TABLE OF AUTHORITIES 

CASES 

Page 
Abrams v. Johnson, 

S21 11S. 744997). iv. oR 19 

Arlington Heights v. Metropolitan Housing Development 
Corp, 4290.8. 2520977)... co. i mds. ois 6 

Bush v. Vera, 

317 US. 952.(1996) 4% ii . «nul v di a, passim 

Cardona v. Oakland Unified School District, 
785 F. Supp. S37(ND.Cal. 1992}... ..0 0... 25 

Chen v. City of Houston, 
206 F.3d 302 (Sth Cir: 2000) vo... iii 20 

Clark v. Calhoun County, 
SSF. 34.4393 (5th Cir. 1996)... . on... uu, 20 

Cosner v. Dalton, 
522F Supp.350(ED. Va. 1981). .........- 25 

DeWitt v. Wilson, 

856 F. Supp. 1409 (E.D. Cal. 1994), : 
afd 313118. 117041995)... ............ 20, 22 

Diaz v. Silver, 

O32 F.Supp. 462 (EDNY. 1996) ........... 25 

Dickinson v. Indiana State Election Bd., 

933 F.2d4907.(C7th Cir 1991). ....... 0a oo. 27



  

vi 

Ely v. Klahr, 
403 U.S. 108 (I971) vn vv vi ia 26 

Gingles v. Edmisten, 
590 F. Supp. 345 (E.D.N.C. 1984), 
aff'd in part and rev’d in part, sub. nom., 
Thornburg v. Gingles, 478 U.S. 30 (1986) . .. . .. H 

Hunt v. Cromartie, 526 U.S. 541 (1999) .......... passim 

King v. State Board of Elections, 
522 U.S. 1087 (1998)... vis somdiinni nin 19 

Lawyer v. Department of Justice, 
521 US. 56701997) =... .. oo Soro) 19, 22 

Maxwell v. Foster, 

No. 98-1378 (W.D. La. Nov. 24, 1999) ..... 26. 27 

Meeks v. Anderson, 

229F. Supp. 271(D. Kan: 1964) ............. 23 

Miller v. Johnson, 

SISU.S. 900(1995) .. %.  .. esd isu passim 

Republican Party of Shelby County v. Dixon, 
L20US. 934(1976) i. Sols 0l nl a 26 

Republican Party of Virginia v. Wilder, 
774 F. Supp. 400 (W.D. Va. 1991) ........... 25 

Reynolds v. Sims, 377U.8.533(1964) ............ 25, 26 

    
 



vii 

Scott v. United States, 

6 920 F. Supp. 1248 (M.D. Fla. 1996), 

aff'd sub. nom., Lawyer v. Department 

of Justice, S21 U.S. 8567 (1997)... ...i.. co. 22 

Shapiro v. Maryland, 
1 336F. Supp. 1205. Md. 1972) .. .... ...0%. 25 

Shaw v. Hunt, 
m 5170.8. 899(1996) ..:..... cola. passim 

Shaw v. Hunt, 

19 No. 92-202-CIV-5-BR (E.D.N.C. 

September 12,1997)... 0 rN, 4,10 

22 Shaw v. Hunt, 

861 F. Supp. 408 (E.D.N.C. 1994), 

rev'd S17U.S. 8901996) i... . 0... arin 1 
27 

Shaw v. Reno, 

5001186301993) ..2% . Lui. Av is passim 
25 

Shaw v. Reno, 

B03F. Supp: 461 (ED.N.C. 1992)... ....5.. 1 
m 

Sincock v. Roman, 

233 F. Supp. 615(D. Del. 1964) . >a... ...... 25 
26 

Theriot v. Parish of Jefferson, 

185 F.3d477 (5thCir. 1999)... 5... lh, 20 
25 

Thornburg v. Gingles, 
26 478 U.S. 30 (1986)   
 



  

viii 

United States v. Hays, 
S15.10.S. 737€1905) on Lien Sana a 18 

Watkins v. Mabus, 

S0211.8.954(1901) =o... ou a a aa 26 

Wilson v. Eu, 

1 Cal. 4th 707, 823 P.2d 545, 
ACA Rptr 2437901992) 4 . 1 ois i 0 20 

STATUTES & RULES 

BUSC 31253 0 0 Tl ia 2 

LUSC II. nt 15, 17 

USC SI9780.. a a 4 

1997 N.C Sess. Laws, Ch 11 0... 0 ii wai en iok, 1 

    

 



26 

20 

17 

  

JURISDICTIONAL STATEMENT ON BEHALF OF 

THE SMALLWOOD APPELLANTS 

Alfred Smallwood, David Moore, William M. Hodges, 

Robert L. Davis, Jr., Jan Valder, Barney Offerman, Virginia 

Newell, Charles Lambeth and George Simkins (“Smallwood 

Appellants”), white and African-American citizens and 

registered voters residing in either North Carolina’s First or 

Twelfth Congressional District, appeal from the final judgment 

entered by the three-judge United States District Court for the 

Eastern District of North Carolina on March 8, 2000, which 

declares that the Twelfth Congressional District of North 

Carolina’s 1997 congressional reapportionment plan, 1997 

N.C. Sess. Laws, Ch. 11 (“1997 Remedial Plan”), violates the 

Fourteenth Amendment to the United States Constitution and 

enjoins further elections under that plan. 

OPINIONS BELOW 

The March 7, 2000 opinion of the three-judge district 

court is unreported and appears in the Appendix to the 

Jurisdictional Statement on Behalf of the State of North 

Carolina (“NC. J.S. App.”) at la. The district court’s final 

judgment, entered March 8, 2000, is unreported and appears at 

NC. J.S. App. at 71a. Previous decisions of earlier phases of 

this and related litigation are reported at Hunt v. Cromartie, 526 

U.S. 541 (1999); Shaw v. Hunt, 517 U.S. 899 (1996); Shaw v. 

Reno, 509 U.S. 630 (1993); Shaw v. Hunt, 861 F. Supp. 408 

(ED.N.C. 1994); and Shaw v. Reno, 808 F. Supp. 461 

(E.D.N.C. 1992). 

JURISDICTION 

The judgment of the court below was entered on March 

8, 2000. The Smallwood Appellants filed their notice of appeal 

to this Court on March 13, 2000. Appendix to the 

 



  

2 

Jurisdictional Statement on Behalf ofthe Smallwood Appellants 

at 1a. On April 27, 2000, the Chief Justice extended the time 

within which to docket the appeal in this case to and including 

May 19, 2000. The jurisdiction of this Court is invoked under 

28 U.S.C. § 1253. 

CONSTITUTIONAL AND 
STATUTORY PROVISIONS INVOLVED 

This appeal involves the Equal Protection Clause of the 

Fourteenth Amendment, reproduced at NC. J.S. App. at 73a. 

STATEMENT OF THE CASE 

A. The Challenge to the Current Plan 

This case is a challenge to the 1997 Remedial Plan, 

which is the third congressional redistricting plan enacted by the 

North Carolina General Assembly since the 1990 Census. This 

Court’s ruling in Shaw v. Hunt, 517 U.S. 899 (1996), concerned 

the second congressional redistricting plan enacted by the North 

Carolina legislature following the 1990 Census (“1992 Plan™).! 

In Shaw, this Court held that the 1992 Plan was unconstitutional 

because the location and configuration of District 12 violated 

the equal protection rights of some of the plaintiffs in the action. 

  

"The first post-1990 Census North Carolina congressional 
reapportionment plan, enacted in 1991, contained one majority-African- 

American district that was 55.69 percent African-American in total 
population and 52.18 percent African-American in voting age population. 

This Court discussed the history of the first plan in Shaw v. Reno, 509 U.S. 
630 (1993) and Shaw v. Hunt,517 U.S. 899 (1996). The second post-1990 
Census reapportionment plan, enacted in 1992, contained two majority- 

African-American districts (the First and Twelfth Congressional Districts), 

but the Twelfth Congressional District was held unconstitutional in Shaw 

v. Hunt. 

    

 



tS 

ne 

1g 
er 

he 

  
  

Shaw, 517 U.S. at 902. 

On July 3, 1996, following the decision of this Court in 

Shaw v. Hunt, three residents of Tarboro, North Carolina, 

Appellees herein, filed the complaint in this action (Cromartie 

v. Hunt), challenging District 1 in North Carolina’s 1992 Plan 

on the ground that it violated their equal protection rights 

because race predominated in the drawing of the district. A stay 

of that action was entered pending the resolution of the remand 

proceedings in Shaw v. Hunt. 

On July 9, 1996 the same Tarboro residents joined the 

original plaintiffs in Shaw in filing an Amended Complaint in 

Shaw, raising a similar challenge to and asserting the same 

claims against the First Congressional District as they raised in 

Cromartie v. Hunt. On July 11, 1996, the members of the 

Smallwood Appellant group (three voters from the First District 

and six voters from the Twelfth District) sought to intervene in 

the Cromartie suit as defendants.’ 

Following this Court’s remand in Shaw v. Hunt, the 

North Carolina General Assembly convened to develop a 

redistricting plan to remedy the constitutional infirmities found 

by this Court. On March 31, 1997, the North Carolina General 

Assembly enacted the 1997 Remedial Plan and submitted it to 

the three-judge court in Shaw v. Hunt, No. 92-202-CIV-5-BR 

(E.D.N.C.). The State also submitted the plan for preclearance 

by the United States Department of Justice pursuant to Section 

  

The Smallwood Appellants also participated fully, as intervenors, 

in Shaw v. Hunt in the trial court and in this Court, including in the 

remedial proceedings which resulted in the approval of the 1997 Remedial 

Plan that is the subject of the present proceedings in this Court. See infra. 

p. 4.



  

4 

5 of the Voting Rights Act, 42 U.S.C. § 1973c. On June 9, 

1997, the Department of Justice precleared the plan. See NC. 

J.S. App. at 316a (Shaw v. Hunt, No. 92-202-CIV-5-BR, 

Memorandum Opinion (E.D.N.C. September 12, 1997)). On 

September 12,1997, the three-judge district court in Shaw v. 

Hunt unanimously approved the 1997 Remedial Plan as an 

adequate remedy for the specific constitutional violation found 

by the Supreme Court in Shaw v. Hunt. NC. J.S. App. at 312a. 

A map of the 1997 Remedial Plan is reproduced at NC. J.S. 

App. at 75a. The three-judge court then dismissed the case 

after Appellees Cromartie and Muse, who were also plaintiffs in 

Shaw v. Hunt, chose not to present their claims that the 1997 

Remedial Plan was unconstitutional to the Shaw three-judge 

court. 

The Cromartie three-judge court lifted its stay of 

proceedings on October 17, 1997. On the same day, two of the 

three original plaintiffs, along with four residents of District 12, 

filed an amended complaint in the Cromartie action, challenging 

the 1997 Remedial Plan as a violation of the Equal Protection 

Clause and still seeking a declaration that District 1 in the 1992 

Plan is unconstitutional. Within the time allowed for answering 

that amended complaint, the Smallwood Appellants filed a 

renewed motion to intervene as defendants. 

On March 31, 1998, the court below heard arguments 

on cross-motions for summary judgment and on the Cromartie 

plaintiffs’ request for preliminary injunction.’ On April 3, 1998, 

  

3At the time of this hearing, the district court had not ruled on the 

motions to intervene of the Smallwood Appellants which had then been 

pending for over twenty months and four months, respectively. The court 

issued its permanent injunction and granted summary judgment without 

    
 



  
  

5 

the three-judge United States District Court for the Eastern 

District of North Carolina issued an order granting summary 

judgment to plaintiffs, declaring North Carolina’s Twelfth 

Congressional District unconstitutional, permanently enjoining 

elections under the 1997 Remedial Plan, and ordering the State 

of North Carolina to submit a schedule for the General 

Assembly to adopt a new redistricting plan and to hold elections 

under that plan.* On April 14, 1998, the district court issued its 

opinion explaining its April 3, 1998 order.’ NC. J.S. App. at 
243a. 

  

ruling on these unopposed motions or holding a hearing on intervention. In 

fact, the district court refused to allow counsel for the Smallwood 

Appellants an opportunity to bring the motion to intervene before it and 

expressly denied counsel for the Smallwood Appellants an opportunity to 

speak at the hearing. 

‘Although the court had not yet released an opinion, the State of 

North Carolina moved for a stay of the injunction pending appeal. The 

district court denied this motion. The State then filed an application with 

this Court for a stay pending appeal, and the Smallwood Appellants filed 

an amicus curiae memorandum in this Court in support of the application. 

This Court denied the request for a stay on April 13, 1998, with Justices 

Stevens, Ginsburg, and Breyer dissenting. 

On May 26, 1998, with their two prior unopposed intervention 
motions still pending, the Smallwood Appellants filed a third motion to 

intervene as defendants in the case. On June 20, 1998, after the deadline 

for filing a timely notice of appeal of the district court’s April 3, 1998 order 

and April 6, 1998 judgment, the district court ruled that the Smallwood 

Appellants were entitled to intervene as of right in this action. As the delay 

in granting the motions to intervene prevented them from fully participating 

as parties in the district court and prevented them from being able to 
exercise their right to appeal, the Smallwood Appellants filed in this Court 
on October 2, 1998 a motion to intervene as Appellants in this case. This 
Court granted the motion on October 19, 1998.



  

6 

B. Appeal of Summary Judgment Decision 

This Court noted probable jurisdiction in Hunt v. 

Cromartie on September 29, 1998. Oral arguments were held 

January 20, 1999. On May 18, 1999, this Court unanimously 

reversed the lower court’s decision and remanded for further 

proceedings. Justice Thomas in an opinion joined by Chief 

Justice Rehnquist and Justices O’ Connor, Scalia, and Kennedy, ® 

first observed that the new District 12 was notably different 

than the original: 

By any measure, blacks no longer constitute a majority 

of District 12: blacks now account for approximately 

47% of the district’s total population, 43% of'its voting 

age population, and 46% of registered voters. . . . The 

new District 12 splits 6 counties as opposed to 10. . . . 

With these changes, the district retains only 41.6% ofits 

previous area. . . and the distance between its farthest 

points has been reduced to approximately 95 miles. . . . 

Hunt v. Cromartie, 526 U.S. 541, 544 (1999) (citations 

omitted). 

This Court also noted that, in evaluating a jurisdiction’s 

motivation in creating a particular redistricting plan, a district 

court must engage in an inherently complex and ‘“sensitive 

inquiry into such circumstantial and direct evidence of intent as 

may be available.”’ Id. at 546 (quoting Arlington Heights v. 

Metropolitan Housing Development Corp., 429 U.S. 252 

(1977)). This Court determined that the district court failed to 

conduct such an inquiry and improperly held that there were no 

  

$Justice Stevens filed an opinion concurring in the Judgment, in 

which Justices Souter, Ginsberg, and Breyer joined. 

    

 



ts 

St 

ns 

  
  

7 

material facts in dispute. Rather, the Court observed that “[t]he 

legislature’s motivation is itself a factual question” that was 

clearly in dispute. Hunt v. Cromartie, 526 U.S. at 549. This 

Court pointed to evidence that the legislature created the 

district “with the intent to make District 12 a strong Democratic 

district,” id., including the testimony of two legislators, who 

testified that the district lines are best explained by partisanship. 

In addition, this Court found the testimony of an expert 

political scientist, Dr. David Peterson, probative. Dr. Peterson 

examined racial demographics, party registration and election 

results from the precincts within the district and those 

surrounding it. He found a strong correlation between the racial 

composition of the precincts and party preference, such that in 

precincts with a high African-American percentage, the voters 

tend to vote for Democrats at a high rate and in precincts with 

a low African-American percentage, the voters tend to favor 

Democrats at a significantly lower rate. Based upon Peterson’s 

testimony, this Court reasoned that “the data tended to support 

both a political and racial hypothesis,” id. at 550, and supported | 

“an inference that the General Assembly did no more than 

create a district of strong partisan Democrats.” Id. 

This Court also found that Appellees offered only a 

limited analysis of a few selected precincts and this was 

insufficient to support a conclusion that the plan was an 

unconstitutional racial gerrymander. Thus, while in a few 

instances, the State had excluded precincts with lower 

proportions of African-American voters but equal or higher 

proportions of registered Democratic voters as the precincts 

included within District 12, id. at 548, there was an adequate 

basis to support the entry of summary judgment for the 

plaintiffs. On the other hand, the State’s expert, Dr. Peterson,



  

8 

was more thorough, analyzing all of the precincts bordering the 

interior and exterior of the district and examining actual voting 

results, not just registration data. /d. at 550. 

In light of this evidence, this Court held that Appellees 

were not entitled to summary judgment. Citing prior 

precedents, this Court stated that “a jurisdiction may engage in 

constitutional political gerrymandering, even if it so happens 

that the most loyal Democrats happen to be African-American 

Democrats and even if the State were conscious of that fact.” 

Id., at 542 (emphasis in the original) (citing Bush v. Vera, 517 

U.S. 952,968 (1996); Shaw v. Hunt, 517 U.S. at 905; Miller v. 

Johnson, 515 U.S. 900, 916 (1995); Shaw v. Reno, 509 U.S. 

630, 646), and that, based on the record before it, the 

motivation behind the creation of the district was in dispute and 

“it was error in this case for the District Court to resolve the 

disputed fact of motivation at the summary judgement stage.” 

Hunt v. Cromartie, at 552. Therefore, this Court reversed the 

lower court’s judgment and remanded. 

C. The District Court Trial on Remand 

From November 29, 1999 to December 1, 1999, the 

district court held a trial during which it heard evidence 

regarding the rationale for the configuration of the 1997 

Remedial Plan. State legislators testified at trial that in 1997, 

the General Assembly had two primary redistricting goals. The 

first was to remedy the constitutional defect found by this Court 

in the 1992 Plan: the predominance of racial considerations 

underlying the shape and location of District 12. NC. J.S. App. 

    
 



  
  

0 

at 82a- 83a, 138.” The second, but equally important, goal was 
to preserve the even partisan balance (six Republican and six 

Democratic members) in North Carolina’s then-existing 

congressional delegation. 

The General Assembly accomplished its first goal of 

enacting a plan free of constitutional defects by utilizing a 

variety of different redistricting techniques, including: 1) 

avoiding division of precincts and counties whenever possible; 

2) avoiding use of narrow corridors to connect concentrations 

of minority voters; 3) striving for geographical compactness 

without use of artificial devices such as double cross-overs or 

point contiguity; 4) pursuing functional compactness by 

grouping together citizens with similar interests and needs; and 

5) seeking to create districts that provide easy communication 

among voters and their representatives. NC. J.S. App. at 83a, 

138a. Meeting the second goal of preserving the same partisan 

balance in the congressional delegation was essential to ensure 

that the General Assembly would be able to agree on a remedial 

plan, since the State House of Representatives was controlled 

by Republicans and the State Senate was controlled by 

Democrats. NC. J.S. App. at 83a-84a, 138a-139a. 

State legislators testified, and the trial record reflects 

that during the 1997 redistricting process the General Assembly 

considered but ultimately rejected proposed plans that would 

have created a second majority-minority district in the area east 

of Charlotte toward Cumberland and Robeson Counties. 

  

” Although District 1 in the 1992 Plan was never determined to be 
unconstitutional, the General Assembly elected to redraw District 1 in 1997 

to ensure its compliance with the post-1990 census decisions. NC. J.S. 

App. at 144, 148a-149a.



  

10 

Several groups and individuals, including the North Carolina 

Association of Black Lawyers and State Representative Mickey 

Michaux, objected to the 1997 Remedial Plan because, in their 

view, it diluted the voting strength of African-Americans in 

certain areas of the state and “deliberately separate[d] large 

politically cohesive African-American communities.” See Shaw 

v. Hunt, No. 92-202-CIV-5, Memorandum in Support of 

Motion to Intervene (E.D.N.C. filed April 15, 1997).2 

While the State was predominantly motivated by a desire 

to remedy this Court’s finding of liability and to meet various 

political interests, the trial record indicates that the General 

Assembly also had before it an extensive record concerning the 

historical exclusion of African-American voters, continuing 

racial appeals in North Carolina election contests, the socio- 

economic disparities affecting African-American voters’ 

opportunities to participate in the political process, the lack of 

success of African-American candidates, and the continuing 

prevalence of racially polarized voting in North Carolina. See 

  

*Indeed, the majority of African-American legislators in the North 

Carolina House of Representatives voted against the 1997 Remedial Plan. 

See NC. J.S. App. at 140a, 152a, 153a. The plan favored by those opposed 

to the 1997 Remedial Plane was designed to avoid dilution; it also would 

have combined African-American voters in Charlotte with voters, including 

African-American and Native American voters, in rural areas southeast of 

Charlotte. The General Assembly concluded that such a district would 
have combined urban and rural voters with disparate and divergent 

economic, social and cultural interests and needs. Affidavit of Gary O. 

Bartlett, Section 5 Submission, Attachment 97C-27N. Also, the General 

Assembly concluded that the proposed district lacked a natural means of 

communication and access among its residents. In addition, that district 
would have thwarted the goal of maintaining partisan balance in the State’s 
congressional delegation. Id. 

    

 



  

  

  

11 

NC. J.S. App. at 34a (plaintiffs stipulated for purposes of trial 

that: the African-American population is politically, cohesive; 

the white majority votes sufficiently as a block to often enable 

it to defeat the minority’s preferred candidate; for many decades 

African-Americans in North Carolina were victims of racial 

discrimination; and a substantial majority of the State’s African- 

American population is still at a disadvantage in comparison to 

white citizens with respect to income, house, education, and 

health). See also, e.g., Gingles v. Edmisten, 590 F. Supp. 345, 

359 (E.D.N.C. 1984), aff'd in part and rev'd in part sub nom. 

Thornburg v. Gingles, 478 U.S. 30 (1986); Affidavit of Gary O. 

Bartlett, Section 5 Submission, Attachment 97C-28F-3B, North 

Carolina Congressional Redistricting Public Hearing Transcript, 

February 26, 1997 at 19-22; id., Ex. 6 (Statement of Anita 

Hodgkiss) at 2-7; id., Ex. 6, Tab 2 (Expert Report of Dr. 

Richard Engstrom) (“Engstrom Report”); id., Ex. 6, Tab 17 

(Expert Report of Dr. J. Morgan Kousser) (“Kousser Report”); 

id. at Ex. 6, Tab 17 (Shaw v. Hunt, Defendant-Intervenor 

stipulations) Nos. 1-58, 64-67). 

Evidence at trial showed that the General Assembly 

succeeded in reaching its stated redistricting goals, particularly 

in creating District 12. While the 1992 Plan divided 80 

precincts and 44 counties, the 1997 Plan divides only two 

precincts and 22 counties. District 12 in the 1997 Plan is 

significantly more compact geographically than it was in the 

1992 Plan. The new District 12 contains parts of six counties, 

rather than ten, has no areas where contiguity is achieved only 

through “point contiguity” and does not contain any “cross- 

overs” or “double-cross-overs” as it did in the 1992 Plan. In 

the 1992 plan, District 12’s boundaries divided 48 precincts, 

while District 12 in the 1997 Plan divides only one. NC. J.S.



  

12 

App. at 84a, 1392° 

The trial record demonstrates that the boundaries of the 

new District 12 were determined predominantly by partisan 

considerations and a desire to have an essentially urban, 

Democratic district in the Piedmont region. NC. J.S. App. at 

84a. The configuration of District 12 reflects a strong 

correlation between the racial composition of the precincts and 

party preference of African-Americans in the district. NC. J.S. 

App. at 80a, 156a-157a, 170a-171a, 178a-180a. As a result, 

District 12’s African-American total population was reduced 

from the original 56.63 percent in the 1992 Plan to 46.67 

percent and the voting-age population was reduced from the 

original 53.34 percent in the 1992 plan to 43.36 percent.'® NC. 

J.S. App. at 77a-79a. 

D. The District Court Opinion and the Current Appeal 

On March 7, 2000, over three months after the 

conclusion of the trial, the district court issued its decision. In 

an opinion strikingly similar to its prior summary judgment 

ruling, the Court found as a matter of fact, based upon the 

uncontroverted testimony of Senator Roy A. Cooper, that the 

House and Senate General Assembly committees formed to 

  

®See also Hunt v. Cromartie at 544 (“By any measure, blacks no 

longer constitute a majority of District 12: blacks now account for 

approximately 47% of the district’s total population, 43% of its voting age 
population, and 46% of registered voters. . . . The new District 12 splits 6 
counties as opposed to 10. . . . With these changes, the district retains only 

41.6% of its previous area. . . and the distance between its farthest points 
has been reduced to approximately 95 miles. . . .”) (citations omitted). 

1%The trial record also shows that District 12 residents share a 

distinct community of interest. See, e.g., NC. J.S. App. at 84a. 

    
 



  
  

13 

address the defects found by this Court “aimed to identify a plan 

which would cure the constitutional defects and receive the 

support of a majority of the members of the General Assembly.” 

NC. JS. App. at 1la. The court also accepted the 

uncontroverted affidavit testimony of Senator Cooper and Gary 

O. Bartlett, Executive Secretary-Director, State Board of 

Elections, that “[i]n forming a workable plan, the committees 

were guided by two avowed goals: (1) curing the constitutional 

defects of the 1992 Plan by assuring that race was not the 

predominant factor in the new plan, and (2) drawing the plan to 

maintain the existing partisan balance in the State’s 

congressional delegation.” Id. The court below also found that 

the 1997 Remedial Plan met the goal of maintaining the existing 

partisan balances by “avoid[ing] placing two incumbents in the 

same district” and “preserv[ing] the partisan core of the existing 

districts to the extent consistent with the goal of curing the 

defects in the old plan.” Id. The court cited no evidence that 

directly contradicted the testimony introduced by the State to 

the effect that the legislature sought, in creating the 1997 

Remedial Plan, to cure the constitutional defects found by this 

Court by ensuring that race did not predominate in its creation 

while minimizing partisan and political disruption. 

Nevertheless, the court below found that race was the 

predominant factor in the creation of the 1997 Remedial Plan 

based largely upon its own assessment of (a) District 12’s racial 

demographics and shape, (b) the racial characteristics of a 

limited number of precincts that were or were not included in 

the district, and (c) mathematical measures of District 12’s 

relative compactness. Id. at 11a-17a. While the court asserted 

that “[a] comparison of the 1992 District 12 and the present 

District is of limited value here,” id. at 24a, it concluded that



  

14 

District 12 in the 1997 Remedial Plan is as “unusually shaped” 

as District 12 in the 1992 Plan. Id. Focusing almost exclusively 

on demographic data and the district’s configuration, the court 

found “as a matter of fact that the General Assembly, in 

redistricting, used criteria with respect to the Twelfth District 

that are facially race driven.” Id. at 28a. Finally, despite 

extensive conflicting factual evidence, the court below 

concluded that “[t]he legislature eschewed traditional districting 

criteria such as contiguity, geographical integrity, community of 

interest, and compactness in redrawing the District as part of 

the 1997 Plan.” Id. at 29a. 

The court found that no evidence of a compelling 

justification for the creation of District 12 was presented and 

determined that “even if such an interest did exist, the 12th 

District is not narrowly tailored and therefore cannot survive the 

prescribed ‘strict scrutiny’.” Id. The lower court, thus, never 

proceeded to assess whether District 12 was narrowly tailored 

to satisfy an identified compelling justification.!’ Instead, the 
court proceeded to conclude that “District 12 is an 

impermissible and unconstitutional racial gerrymander in 

  

Therefore, the court never considered or discussed whether the 

creation of District 12 could be justified by a compelling interest in 
remedying the current effects of North Carolina’s long history of political 

exclusion and in avoiding dilution of minority voting strength. The court 

ignored evidence presented by the State that its “primary goals [of 

remedying the constitutional defects found in the 1992 Plan and preserving 

partisan balances in the congressional delegation] were accomplished while 
still providing minority voters a fair opportunity to elect representatives of 

their choice in at least two districts (Districts 1 and 12),” Affidavit of Gary 

O. Bartlett, Section 5 Submission, Attachment 97C-27N, and that “District 

12 in the State’s plan also provides the candidate of choice of African- 
American citizens a fair opportunity to win election.” Id. 

    

  

  

 



  

  

  

  

15 

violation of the Equal Protection Clause” and ordered the State 

to “redistrict the 1997 Plan in such a way that it avoids the 

deprivation of the voters’ equal protection rights not to be 

classified on the basis of race,” leaving the State “free to use 

other, proper factors in redistricting the 1997 Plan.” NC. J.S. 

App. at 29a (emphasis added). While ruling that race was also 

the predominant factor in the creation of District 1, the court 

held that the district was narrowly tailored to meet North 

Carolina’s compelling state interest of complying with Section 

2 of the Voting Rights Act, 42 U.S.C. § 1973. NC. J.S. App. 

at 35a 

Judge Thornburg joined the majority insofar as it held 

that District 1 is constitutional; however, he dissented from the 

majority opinion that District 12 is an unconstitutional racial 

gerrymander. Judge Thornburg acknowledged the difficult 

challenges that confronted the North Carolina General 

Assembly during the 1997 redistricting process. During this 

process, according to Judge Thornburg, the State faced a 

myriad of “conflicting agendas and influences,” including 

incumbency considerations and partisan political concerns. NC. 

J.S. App. at 38a. Judge Thornburg concluded that the majority 

was incorrect to conclude that from this “cauldron” race 

emerges as the predominant motivating factor leading to the 

creation of District 12. Id. He suggested that it would be 

impossible for the State to “navigate these treacherous waters 

without being aware of the issue of race,” since “race loomed 

as the reason why the General Assembly had to redraw districts 

in the first place.” NC. J.S. App. at 38a-39a (emphasis in the 

original). However, he concluded that it was improper for the 

majority to determine that race “impermissibly predominated, in 

a process where consciousness of race is not prohibited.” Id. at



  

16 

39a (footnote and citations omitted). In so concluding, the 

majority failed to hold the plaintiffs to their burden of proof and 

properly credit the testimony of the two state legislators who 

drove the 1997 redistricting process. Id. 

REASONS FOR NOTING PROBABLE JURISDICTION 

In striking down North Carolina’s Twelfth 

Congressional District, the district court misapplied this Court’s 

precedents and imposed its own subjective redistricting 

preferences as the measure of the district’s constitutionality. 

The lower court erred by conflating any consciousness or 

awareness of race with the application of strict scrutiny and a 

finding that District 12 is a racial gerrymander. In addition, the 

court erred by failing to examine whether any compelling 

justification could exist for the creation of the challenged 

district. Finally, the district court exceeded its authority in 

ordering that the state develop a remedy after the election 

process had begun and only a year before a new plan would 

have to be developed following the release of the 2000 census 

data. 

The district court's decision, if upheld, would render 

meaningless this Court’s holding in Shaw and its progeny that 

strict scrutiny would apply only if it is found that “race for its 

own sake, and not other districting principles, was the 

legislature’s dominant and controlling rationale in drawing its 

district lines.” Bush, 517 U.S. at 952 (quoting Miller, 515 U.S. 

at 913). The district court’s reasoning would apply strict 

scrutiny to all districts drawn for political purposes even if race 

was only found to be one of several factors in the redistricting 

process. 

    

  

 



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L The Court Erred by Effectively Holding that Race- 

consciousness Triggers “Strict Scrutiny.” 

As noted supra in the Statement of the Case, the court 

below failed to assess most of the evidence presented by the 

Defendants and Defendant-Intervenors at trial. Instead, the 

court recited statistics concerning the racial composition and 

political party registration of voters in a small number of 

precincts placed inside or outside of District 12. Without even 

addressing the other factors that state legislators took into 

account in the redistricting process, the court concluded from 

its limited factual recitation not only that the 1997 Remedial 

Plan was race-conscious, but also that it must be struck down 

as motivated predominantly by racial considerations. Indeed, 

the district court ordered that, in designing its remedy, the State 

should limit the factors it could use in its redistricting to factors 

other than race, characterizing only those non-racial factors as 

proper. NC. J.S. App. at 29a. 

In the circumstances of this case, this ruling amounted 

to a holding, contrary to this Court’s repeated admonitions, that 

race-conscious districting is inherently unconstitutional. 

Because such a rule would eviscerate the protections against 

minority vote dilution provided by Section 2 of the Voting 

Rights Act of 1965, 42 U.S.C. § 1973, and is flatly inconsistent 

with this Court’s Shaw decisions, the judgment below must be 

reversed. 

As this Court has held, Appellees’ evidentiary burden in 

this case is to show that “race for its own sake, and not other 

districting principles, was the legislature’s dominant and 

controlling rationale in drawing its district lines,” Bush, 517 

U.S. at 952 (quoting Miller, 515 U.S. at 913), and “that other, 

legitimate districting principles were ‘subordinated’ to race.”



  

18 

Bush, 517 U.S. at 958. See generally id. at 259-68. It is 

insufficient for a court to find, as here, that a redistricting 

process was conducted with some “consciousness of race.” See 

Bush, 517 U.S. at 1051. As Justice O’Connor has observed: 

States may intentionally create majority-minority 

districts and may otherwise take race into consideration, 

without coming under strict scrutiny. Only if traditional 

districting criteria are neglected, and that neglect is 

predominantly due to the misuse of race, does strict 

scrutiny apply. 

Bush, 517 U.S. at 993. (O’Connor, J., concurring) (emphasis 

in original); see also United States v. Hays, 515 U.S. 737, 745 

(1995) (“We recognized in Shaw. . .that the ‘legislature always 

is aware of race when it draws district lines, just as it is aware 

of age, economic status, religious and political persuasion, and 

a variety of other demographic factors. That sort of race 

consciousness does not lead inevitably to impermissible race 

discrimination”) (citation omitted) (emphasis in original). 

In Shaw v. Reno, 509 U.S. at 653, this Court held that 

it would be the extraordinary case in which strict scrutiny would 

apply. Indeed, in Shaw, Miller, and Bush, the district courts 

applied strict scrutiny only after they determined that race 

played a predominant role in the design of the districts at issue. 

Miller, 515 U.S. at 928 (O’Connor, J., concurring); Shaw v. 

Hunt, 517 U.S. at 903; Bush, 517 U.S. at 952. And those 

determinations were not based upon mere “race consciousness.” 

For example, in Shaw v. Hunt, this Court found sufficient 

“direct evidence” that the State’s “overriding purpose” was to 

“create two congressional districts with effective black voting 

majorities” and that other considerations “came into play only 

after the race-based decision had been made.” Shaw v. Hunt, 

   



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517 U.S. at 906 (original emphasis omitted and emphasis 

added). In Miller, the State conceded that the district at issue 

was the “product of a desire by the General Assembly to create 

a majority black district,” Miller, 515 U.S. at 918 (emphasis 

added), and that the creation of the district “violate[d] all 

reasonable standards of compactness and contiguity.” Id. at 

919. The court below made no such findings and the record 

below demonstrated that race did not predominate in the 

creation of the district. 

This Court has repeatedly recognized the reality of race- 

consciousness during the redistricting process and reserved 

strict scrutiny only to those circumstances where race 

predominated. See, e.g., Bush, 517 U.S. at 958 (“Strict scrutiny 

does not apply merely because redistricting is performed with 

consciousness of race. . . . Nor does it apply to all cases of 

intentional creation of majority-minority districts”) (citations 

omitted); Lawyer v. Department of Justice, 521 U.S. 567 

(1997) (upholding the constitutionality of a Florida state 

legislative districting plan that was drawn with conscious 

consideration of race to settle litigation challenging prior plan, 

creating majority-minority district that afforded minority voters 

opportunity to elect candidates of choice that was somewhat 

irregularly shaped and that split county and city boundaries); 

Abrams v. Johnson, 521 U.S. 74 (1997) (approving 

congressional districting plan for Georgia having majority- 

African-American district); King v. State Board of Elections, 

522 U.S. 1087 (1998) (per curiam) (summarily affirming 

district court ruling upholding the constitutionality of Illinois’ 

Fourth Congressional District). This principle has been 

consistently applied by various district and appellate courts that 

have considered constitutional challenges brought under the



  

20 

Shaw regime. See, e.g., Chen v. City of Houston, 206 F.3d 502 

(5th Cir. 2000); Theriot v. Parish of Jefferson, 185 F.3d 477 

(5th Cir. 1999); Clark v. Calhoun County, 88 F.3d 1393 (5th 

Cir. 1996); DeWitt v. Wilson, 856 F. Supp. 1409 (E.D. Cal. 

1994), aff'd, 515 U.S. 1170 (1995), 

This Court’s most recent ruling in Hunt v. Cromartie 

itself is most instructive. In ruling that the lower court was in 

error to hold District 12 unconstitutional without a trial, this 

Court concluded that “a jurisdiction may engage in 

constitutional political gerrymandering, even if it so happens 

that the most loyal Democrats happen to be black Democrats 

and even if the State were conscious of that fact.” Hunt v. 

Cromartie, 526 U.S. at 542 (emphasis in the original) (citing 

Bush, 517 U.S. at 968; Shaw v. Hunt, 517 U.S. at 905; Miller, 

515 U.S. at 916; Shaw v. Reno, 509 U.S. at 646). This Court 

determined that 

Evidence that blacks constitute even a supermajority in 

one congressional district while amounting to less than 

a plurality in a neighboring district will not, by itself, 

suffice to prove that a jurisdiction was motivated by 

race in drawing its district lines when the evidence also 

shows a high correlation between race and party 

preference. 

  

2A further understanding of the De Witt decision can be gained by 

reviewing the decision of the California Supreme Court that created the 
redistricting plans challenged in DeWitt. See Wilson v. Fu, 823 P.2d 545, 
563-64,582,583-84,594, 1 Cal. 4th 707, 746, 775, 776, 790, 4 Cal. Rptr. 
2d 379, 397-8, 416, 417-8, 428 (1992) (describing the various special 

efforts taken to create districts that would comply with the Voting Rights 

Act). 

   



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Hunt v. Cromartie at 526 U.S. at 542. In view of Cromartie, 

it is clearly evident that if a jurisdiction draws district lines to 

fulfill partisan political objectives, the fact that a large number 

of residents of the district are also members of a racial minority 

group does not, in and of itself, convert the district to a “racial 

gerrymander.” 

Thus, even if the Twelfth Congressional District created 

by the 1997 Remedial Plan had been a majority-minority district 

that would not, standing alone, compel a finding of 

unconstitutionality. The fact that the State included strong 

Democratic performing precincts in District 12, that a number 

of these precincts were majority African-American, and that 

those leading the redistricting process were aware of that fact, 

does not constitute a violation of the Constitution. To hold 

otherwise would invalidate this Court’s holding in Cromartie 

that permits a state to meet its partisan political goals even if it 

is aware of the race of the voters used in the process. It would 

automatically render any plan drawn with even the mere 

awareness of race unconstitutional. As the prior iteration of the 

case before the Court, Cromartie provides the template for 

analyzing the claims presented in this case. The lower court 

failed to cite to or discuss this Court’s analysis Cromartie and 

in so doing failed to acknowledge this important precedent. 

Equally significant, the court below failed to give any 

consideration — much less appropriate weight — to the political 

realities confronted by the General Assembly during the 

redistricting process. Although the General Assembly’s primary 

goals in enacting the 1997 Remedial Plan were to correct the 

prior constitutional violation found by this Court in Shaw v. 

Hunt and to preserve the congressional delegation’s partisan 

balance, the State could not achieve these goals in a political



  

22 

vacuum. As the testimony showed, among other political 

considerations, legislators were concerned that the plan 

developed be racially fair. NC. J.S. App. at 121a, 130a, 147a- 

148a, 151a. This was not only important given the history of 

political exclusion and discrimination that was in the record 

before the General Assembly members, but was also necessary 

to achieve the political goals of securing enough support for the 

1997 Remedial Plan from African-American political and 

legislative leaders in the General Assembly. See NC. J.S. App. 

at 15la, 147a. Such considerations do not relegate a 

redistricting plan to strict scrutiny. See Lawyer, 521 U.S. at 

581 (upholding the constitutionality of a majority-minority 

district that district court found “‘offers . . . any candidate, 

without regard to race, the opportunity’ to seek and be elected 

to office”) (quoting and citing Scott v. United States, 920 F. 

Supp. 1248, 1256 (M.D. Fla. 1996)); DeWitt, 856 F. Supp. at 

1413-14 (finding that the California redistricting plan, 

containing intentionally created majority-minority districts, was 

not an unconstitutional racial gerrymander because the plan 

“evidences a judicious and proper balancing of the many factors 

appropriate to redistricting, one of which was the consideration 

of the application of the Voting Rights Act’s objective of 

assuring that minority voters are not denied the chance to 

effectively influence the political process”). 

IL The District Court Erred by Failing to Determine 

Whether the State had a Compelling Justification 

for Creating a Narrowly Tailored District 12 

Even if the district court was correct to find that race 

was the predominant factor in the drawing of District 12, the 

court erred by failing to consider whether it was narrowly 

tailored to achieve an identified compelling governmental 

   



23 
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al interest. 

in As discussed, supra, the district court concluded that, in 

3- | drafting the 1997 Remedial Plan, the State disregarded 

of traditional redistricting criteria and found that race was the 

d predominant factor in the creation of District 12. But, the court 

y never engaged in the necessary strict scrutiny analysis, assessing 

1 | whether District 12 was narrowly tailored to satisfy an identified 

d compelling justification. Rather, the court found that no 

p. evidence of a compelling justification for the creation of District 

a 12 was presented” and determined that “even if such an interest 

2 did exist, the 12th District is not narrowly tailored and therefore 

Ly cannot survive the prescribed ‘strict scrutiny.”” NC. J.S. App. 

c, at 29a. The lower court, thus, never conducted the required 

d analysis to determine whether District 12 was narrowly tailored 

F, to satisfy a specified compelling justification. 

: Even where a court finds that race predominated in the 

- redistricting process, its inquiry does not end. This Court’s 

hn Shaw jurisprudence requires a court to assess whether there was 

% a compelling justification for a plan drawn with race as a 

n predominant factor, and whether the plan was narrowly tailored 

of to serve that justification. See, e.g., Shaw v. Hunt, 517 U.S. at 

914 (assuming without argument that Ҥ 2 could be a 

  

[0 . ‘ : 
compelling interest”), Miller, 515 U.S. at 915 (race- 

consciousness in drawing district lines would not alone render 

1€ a districting plan presumptively unconstitutional). The lower 

mn court erred by discontinuing its inquiry once it concluded that 

| race predominated in the creation of District 12. 

1e 
1 

. 

BThis finding is clearly erroneous in light of the parties’ 
stipulation referred to infra. 

 



  

24 

If the district court had engaged in the correct analysis, 

it would have had to conclude that the 1997 Remedial Plan is 

justified. The trial record indicates that, in creating the plan, the 

legislature was aware of North Carolina’s long history of 

official discrimination against African-Americans and their 

exclusion from the political process due to state and private 

action. In addition, plaintiffs stipulated to this history and its 

lingering effects. See NC. J.S. App. at 34a. Moreover, there 

was evidence that the State sought to “provid[e] minority voters 

a fair opportunity to elect representatives of their choice in at 

least two districts (Districts 1 and 12),” NC. J.S. App. at 64a, 

and that District 12 does afford African-American voters a fair 

chance to elect their candidate of choice. See NC. J.S. App. at 

66a. The district court erred in not engaging in the rigorous 

strict scrutiny inquiry required by this Court. 

III. The District Court Erred in Ordering Redistricting 

on the Eve of the Post-2000 Census Redistricting 

Cycle 

The district court’s decision came on the eve of the 

2000 redistricting and just days before absentee balloting for the 

2000 congressional primary election was to begin. However, 

the delay of this case began months earlier, when, despite the 

urgency of the State’s election schedule, the district court failed 

to issue its discovery schedule until August 23, 1999, three 

months after this Court’s decision. Although the district court 

was aware that the State’s election process had begun, it 

nevertheless delayed over three months after an expedited trial 

to issue its opinion. In the time that the trial court took to issue 

its opinion, the State’s election process was fully engaged. 

Any remedy in this case that requires redistricting 

threatens to disrupt the on-going election process, perhaps 

   



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requiring a new primary and a delay in the general election. 

Appellees have indicated clearly that they will seek just such a 

remedy. See, e.g., Appellees’ Motion to Expedite Schedule for 

Appeal. The injury from disrupting election processes is 

significant and has been well documented by this Court and the 

federal trial courts. See, e.g., Reynolds v. Sims, 377 U.S. 533 

(1964).'* Moreover, minority voters are particularly injured by 

this disruption. See Smallwood Appellants’ Application to Stay 

Decision of the United States District Court for the Eastern 

District of North Carolina Pending Appeal at 2-6. The harms 

  

“These principles have guided federal trial courts in both 
reapportionment and vote dilution cases. See, e.g., Diaz v. Silver, 932 F. 

Supp. 462, 466 (E.D.N.Y. 1996) (preliminary injunction denied to avoid 
harming public interest where elections scheduled in a few months, even 
though court found likelihood of success on Shaw claim and irreparable 

injury to plaintiffs); Cardona v. Oakland Unified School District, 785 F. 

Supp. 837, 843 (N.D. Cal. 1992) (court refused to enjoin election where 

primary “election machinery is already in gear,” including the passage of 

deadline for candidates to establish residency and start of candidate 

nominating period); Republican Party of Virginia v. Wilder, 774 F. Supp. 

400 (W.D. Va. 1991) (injunction denied in case with “uncertain cause of 

action with only possible irreparable harm” and where time for election 
was close and there was danger of low voter turnout if election postponed); 

Cosner v. Dalton, 522 F. Supp. 350 (E.D. Va. 1981) (three-judge court) 

(use of malapportioned plan not enjoined where elections were two months 

away); Shapiro v. Maryland, 336 F. Supp. 1205 (D. Md. 1972) (court 

refused to enjoin election where candidate filing deadline was imminent and 

granting relief would disrupt election process and prejudice citizens, 
candidates and state officials); Sincock v. Roman, 233 F. Supp. 615 (D. 

Del. 1964) (three-judge court) (per curiam) (enjoining election would 

result in disruption in ongoing election process which would cause 

confusion and possible disenfranchisement of voters); Meeks v. Anderson, 

229 F. Supp. 271, 274 (D. Kan. 1964) (three-judge court) (court held 
malapportioned districts unconstitutional but concluded that the “ends of 

Justice” would “best be served” by permitting elections to proceed).



  

26 

that could result from such disruption prompted the three-judge 

district court in the earlier litigation in Shaw v. Hunt litigation 

to deny injunctive relief to plaintiffs in 1996, where only a few 

months remained before the general election. See also 

Reynolds, quoted supra, 377 U.S. at 585 (“[U]nder certain 

circumstances, such as where an impending election is imminent 

and a State’s election machinery is already in progress, equitable 

considerations might justify a court withholding the granting of 

immediately effective relief in a legislative apportionment case, 

even though the existing apportionment scheme was found 

invalid”). See also Watkins v. Mabus, 502 U.S. 954 (1991); 

Republican Party of Shelby County v. Dixon, 429 U.S. 934 

(1976); Ely v. Klahr, 403 U.S. 108 (1971). Thus, even if the 

court below was correct in holding that District 12 is 

unconstitutional, it nevertheless erred by requiring immediate 

relief, when such relief would disrupt an election process that 

was so far advanced. 

Moreover, in less than one year, the Census Bureau will 

release the 2000 Census data and the State will begin the 

redistricting process anew, a process that inevitably will result 

in at least some Congressional districts being redrawn. To 

require the State to engage in the disruptive process now only 

to repeat it in less than a year would be unduly burdensome and 

duplicative. Cf. Maxwell v. Foster, No. 98-1378, (W.D. La. 

Nov. 24, 1999), attached to the Smallwood Appellants’ 

Application to Stay Decision of the United States District Court 

for the Eastern District of North Carolina Pending Appeal as 

Appendix E. 

As the next redistricting cycle is imminent, allowing the 

state to proceed with elections under the 1997 Remedial Plan 

would not permanently prevent plaintiffs from acquiring the 

   



  

27 

remedy they seek: a new redistricting plan. If during or after 

the 2000 redistricting cycle, plaintiffs are not satisfied with the 

new plan, they may participate in the process of creating a more 

palatable plan or challenge the constitutionality of the plan 

subsequently. The reasoning of the court in Dickinson v. 

Indiana State Election Bd., 933 F.2d 497, 502 (7th Cir. 1991) 

is directly on point: 

The district court also concluded that, on equitable 

grounds, the pending 1991 redistricting (based on the 

1990 census) makes entry of relief inappropriate. The 

district court did not err in making this finding. The 

legislative reapportionment is imminent, and Districts 49 

and 51 may well be reshuffled. The legislature should 

now complete its duty, after which the plaintiffs can 

reassess whether racial bias still exists and seek 

appropriate relief. 

Furthermore, this is consistent with the most recent decisions of 

district courts that have considered constitutional challenges to 

redistricting plans late in the decade. See, e.g., Maxwell v. 

Foster, No. 98-1378, slip op. at 7 and 8 (W.D. La. Nov. 24, 

1999) (district court granting State of Louisiana’s motion for 

summary judgment and finding that “rapid-fire reapportionment 

immediately prior to a scheduled census would constitute an 

undue disruption of the election process, the stability and 

continuity of the legislative system and would be highly 

prejudicial, not only to the citizens of Louisiana, but to the state 

itself”), attached to the Smallwood Appellants’ Application to 

Stay Decision of the United States District Court for the 

Eastern District of North Carolina Pending Appeal as Appendix 

E. Therefore, even if this Court should hold District 12 

unconstitutional, rather than requiring the State to engage in a



    

28 

disruptive redistricting process that will invariably produce 

districts drawn according to inaccurate data, this Court should 

act consistent with well-established precedent to permit the 

State to proceed with the 2000 elections under the 1997 

Remedial Plan. 

CONCLUSION 

For the foregoing reasons, this Court should summarily 

reverse the judgment of the district court. In the alternative, 

this Court should note probably jurisdiction of this appeal. 

Respectfully submitted, 

ELAINE R. JONES ADAM STEIN 

Director-Counsel FERGUSON, STEIN, WALLAS, 

NORMAN J. CHACHKIN ADKINS, GRESHAM & 

JACQUELINE A. BERRIEN SUMTER, PA. 

NAACP LEGAL DEFENSE 312 West Franklin Street 

& EDUCATIONAL FUND, INC. Chapel Hill, NC 27516 

99 Hudson Street, Suite 1600 (919) 933-5300 

New York, NY 10013 

(212) 219-1900 ToDD A. Cox* 

NAACP LEGAL DEFENSE 

& EDUCATIONAL FUND, INC. 

1444 Eye Street, NW 

10th Floor 

Washington, DC 20005 

(202) 682-1300 

*Counsel of Record 

Attorneys for Appellant-Intervenors 

| 

 



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APPENDIX



    

 



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APPENDIX A 

UNITED STATES DISTRICT 
EASTERN DISTRICT OF NORTH CAROLINA 

RALEIGH DIVISION 
  

Civil Action No. 4:96-CV-104 
  

MARTIN CROMARTIE, et al. 

Plaintiffs, 

Vv. 

| JAMES B. HUNT, JR, etal, 
Defendants, 

and 

ALFRED SMALLWOOD, et al., 

Defendant-Intervenors. 
  

FILED 

MAR 13 2000 

DAVID W. DANIEL, CLERK 
  

DEFENDANT-INTERVENORS’ NOTICE OF APPEAL 
  

Notice is hereby given that Alfred Smallwood, David 

Moore, William M. Hodges, Robert L. Davis, Jr., Jan Valder, 

Barney Offerman, Virginia Newell, Charles Lambeth and 

George Simkins, Defendant-Intervenors, hereby appeal to the 

Supreme Court of the United States from March 8, 2000 
Judgment and the March 7, 2000 order declaring North 
Carolina’s Twelfth Congressional District unconstitutional and 

 



    

2a 

enjoining the State of North Carolina from using the district in 

future elections. 

This appeal is taken pursuant to 28 U.S.C. Sec. 1253. 

This the 13th day of March, 2000 

Respectfully Submitted, 

/s/ Adam Stein 
  

[certificate of service omitted in printing] 

ELAINE R. JONES 

Director-Counsel 

NORMAN J. CHACHKIN 

NAACP Legal Defense and 
Educational Fund, Inc. 

99 Hudson Street, Suite 1600 

New York, New York 10013 

(212) 219-1900 

TODD A. COX 
NAACP Legal Defense and 

Educational Fund, Inc. 

1444 Eye Street, N.W., 10th Floor 

Washington, D.C. 20005 
(202) 682-1300 

ADAM STEIN 

Ferguson, Stein, Wallas, Adkins, 

Gresham & Sumter, P.A. 

312 West Franklin Street 

Chapel Hill, NC 27516 

(919) 933-5300 

  
 



  
 



No. 99- 

  

  
  

In the 

  

      

       

  

   
   

  

Supreme Court of the fnited Statpg RECEIVES 

JAMES B. HUNT, JR., et al., MAY 1 a 900 

Appellants, MAY 19 ctu 

and OFFICE OF ThE (yf LER 
ALFRED SMALLWOOD, et al., SUPREME couRr : a   Appellant-Intervenors, 

Vv. 

MARTIN CROMARTIE, et al., 

Appellees. 
  

AFFIDAVIT OF SERVICE 
  

I HEREBY CERTIFY that all parties required to be served, have been served on this 19th day of 

May, 2000, in accordance with U.S. Supreme Court Rule 29.5(c), three (3) copies of the foregoing 

JURISDICTIONAL STATEMENT ON BEHALF OF THE SMALLWOOD APPELLANTS 
by placing said copies in the U.S. Mail, first class postage prepaid, addressed as listed below: 

Robinson O. Everett Edwin M. Speas, Jr. 

Everett & Everett Chief Deputy Attorney General 

Post Office Box 586 Tiare B. Smiley 

Durham, North Carolina 27702 Special Deputy Attorney General 

North Carolina Department of Justice 

Post Office Box 629 

Raleigh, North Carolina 27602-0629 

a I i RC 
Kdren L. Pierangeli 

Byron S. Adams 

Legal & Commercial Printers 

1615 L Street, NW 

Suite 100 

Washington, DC 20036 

(202) 347-2803 

  

Sworn to and subscribed before me this 19th day of May 2000. 
fo NDE 

| 

VS EAN ) \ EE 

WILLIAM R. PIERANGELI U/ 

NOTARY PUBLIC 

District of Columbia 

  

  

My commission expires April 30, 2004.