Opinion; Concurrence and Dissent

    $ 

s APPENDIX 1 

IN THE UNITED STATES DISTRICT COURT go FOR THE EASTERN DISTRICT OF NORTH CAROLIFA f= D EASTERN DIVISION 5 HY Y, 
hn a No. 4:96-CV-104-BO(3) 7 Ble J ones 

DAVID ui; DANS: Cl Ep: a , iy , dic, LERK gv DISTRCT COURT Eppes 
MARTIN CROMARTIE, ef al, 

Plaintiffs, 

V. 

  JAMES B. HUNT, JR, in his official 
capacity as Governor the State of North 
Carolina, et al, 

) 
) 
) 
) 
) 
) OPINION 

) 
) 
) 
) 

Defendants. ) 

)   

BOYLE, Chief District Judge: 

This matter is before the Court on remand from the United States Supreme Court's order 
holding that the underlying casc was not suited for summary disposition and ordering this Court 
to conduct further proceedings. Hunt v. Cromartie, 526 U.S. 541,119.85. C1. .1543. 143 L.Ed.   

731 (1999). The underlying action challenges the congressional redistricting plan enacted by 
the General Assembly of the State of North Carolina on March 31, 1997, contending that it 
violates the Equal Protection Clause of the Fourteenth Amendment, and relying on the line of 
cases represented by Shaw v. Hunt, 517 U.S. 899, 116 S. Ct. 1894, 135 L.Ed.2d 207 (1996) 

  

("Shaw I1"), and Miller v. Johnson, 515 U.S. 900, 904, 115 S. Ct. 2475, 2432, 132 L.Ed.2d 762 
        

(1995). 

Following the Supreme Court's decision to remand, the parties undertook a new round of 
discovery, ending in October, 1999. Between November 29 and December 1, 1999, a trial was 
held before this Court. 

 



    

BACKGROUND 
  

In Shaw [I the United States Supreme Court held that the Twelfth Congressional District 

created by the 1992 Congressional Redistricting Plan (hereinafter, the "1992 Plan") was race-- 

based and could not survive the required "strict scrutiny." 517 U.S. 899, 116 S. CL 1894. The 

  

five plaintiffs in Shaw lacked standing to attack the other majority-minority district (the First 

Congressional District under the 1992 Plan) because they were not registered voters in the 

district. Id. 

Soon after the Supreme Court ruled in Shaw II. three residents of Tarboro, North 

  

Carolina, filed the original Complaint in this action on July 3, 1996. These original Plaintiffs 

resided in the First Congressional District (alternatively, "District 1") as it existed under North 

Carolina's 1992 Plan. The Plaintiffs charged that the First Congressional District violated their 

rights to equal protection under the United States Constitution because race predominated in the 

drawing of the District. The action was stayed pending resolution of remand proceedings in 

Shaw v. Hunt, and on July 9, 1996, the sare three Tarboro residents joined the Plaintiffs in   

Shaw in filing an Amended Complaint in that case, similarly challenging District 1. 

  

By Order dated September 12, 1997, the three-judge panel in Shaw approved a 

congressional redistricting plan enacted on March 31, 1997, by the General Assembly asa 

remedy for the constitutional violation found by the Supreme Court to exist in the Twelfth 

Congressional District (alternatively, "District 12"). The Shaw fitse dudes panel also dismissed 

without prejudice, as moot, the plaintiffs’ claim that the First Congressional District in the 1992 

Plan was unconstitutional. Although it was a final order, the September 12, 1997, decision of the 

Shaw three-judge panel was not preclusive of the instant cause of action, as the panel was not 

   



      

UDGE BOYLE 

  

presented with a continuing challenge to the redistricting plan.’ 

On October 17, 1997 this Court dissolved the stay previously catered in this malter, On 
the same day, two of the original three Plaintiffs, along with four residents of District 12, filed an 
amended Complaint challenging the 1997 remedial congressional redistricting plan (the "1997 
Plan"), and seeking a declaration that the First and Twelfth Congressional Districts in the 1997 
Plan are unconstitutional racial gerrymanders. A three-judge panel was designated by order of 
the Chief Judge of the Fourth Circuit Court of Appeals, dated J anuary 23, 1998, 

The Plaintiffs moved for a preliminary injunction on J anuary 30, 1998, and for summary 
judgment on February 5, 1998. Defendants filed for summary judgment ” March 2, 1998, and 2 
hearing on these motions was held on March 31, 1998. On April 3, 1998, a majority of the 
three-judge panel issued an Order and Permanent Injunction finding that the Twelfth 

| Congressional District under the 1997 Plan was unconstitutional and granting Plaintiffs summary 
judgment as to that district. The Order and Permanent Injunction also granted Plaintiffs’ Motion 
for Preliminary Injunction and granted Plaintiffs request for a Permanent Injunction, thereby - 
enjoining Defendants from conducting any primary or gencral election for congressional offices 
under the 1997 Plan. Finally, the Court ordered the parties to file a written submission 
addressing an appropriate time period within which the North Carolina Genera] Assembly would 
  

! In its final Memorandum Opinion the three-judge panel in Shaw noted that there was "no substantive challenge to the [ 1597] plan by any party to this action," and closed by explicitly "noting the limited basis of the approval of the plan that we are empowered to give in the context 

approval thus does not—cannot—rug beyond the plan's remedial adequacy with respect to those parties and the equal protection violation found as to former District 12." Shaw v. Hunt, No. 92- 202-CIV-5-BR, at 8 (E.D.N.C. Sept. 12, 1997). 
  

 



    

be allowed the opportunity to correct (he constitutional defects in the 1997 Plan, and to present a 
proposed election schedule to follow redistricting which provided for a primary election process 
culminating in a genera] congressional election to be held on the date go f the previously 
scheduled general election. 

| Defendants filed a Motion to Stay the April 3 Order, which was denied by this Court on 
April 6, 1998. On that date, Defendants appealed the denial of their Motion to Stay to the United 
States Supreme Court, which upheld this Court's denial on Apnl 13, 1998. Hunt v. Cromartie,   

523 U.S. 1068, 118 S.Ct. 1510, 140 L.Ed.2d 662 (1998). 

On April 14, 1998, this Court issued a Memorandum and Opinion issuing its findings of 
fact and conclusions of law regarding the April 3, 1998 order and denying Plaintiffs’ Motion for 
Summary Judgment with regard to the fret Congressional District under the 1997 Plan. On 
April 17, 1998, Defendants filed 2 motion asking the Court to reconsider its April 6 rin On 
April 21, this Motion to Reconsider was denied. 

On April 21, 1998, the Court issued a scheduling order, requiring that the General 
Assembly either submit a new plan to the Court a the Department of Justice by May 22, 1998 
or the Court would assume responsibility for drawing an interim plan. On May 232, 1998, 
Defendants submitted the 1998 Congréssion Redistricting Plain ("the 1998 Plan"). The 1998 | 
Plan contained a clause stating that, in the event that the United States Supreme Court found for 
the State in its appeal, the 1998 Plan would no longer be ordered and thus North Carolina's 
congressional districts would revert to the 1997 Plan. 

Ou October 19, 1998, the Court granted a joint motion to stay all proceedings in this 
action pending a decision by the United States Supreme Court in Hunt v. Cromartie, docketed in       

the Supreme Court on September 16, 1998 as No, 98-450. 

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“opm EE aor HIEF JUDGE BOYLE 

  

On May 17, 1999 the United States Supreme Court entered an order holding that the 
underlying case was not suited for summary disposition and ordering this Court to conduct 
further proceedings. -Hunt v. Cromartie, 526 U.S, 541, 1195. cx. 1545, 143 L.Ed. 731 (1999). 

In compliance with the Supreme Court's decision, a three day beach trial was held in this 
matter, from November 29 to December 1, 1999. Plaintiffs called eight witnesses. Plaintiffs’ 
first witness was Senator Hamilton Horton, a resident of Forsyth County and longtime member 
of the North Carolina General Assembly. Senator Horton kstified as to his belief that Forsyth 
County and Winston-Salem were split along racial lines in the 1997 Plan and that District 12 was 
created with a predominantly racial motive. 

PlaintifTs' second witness was Reéztstentaitve is Wood, a resident of High pits 
North Carolina, Representative Wood testified that in 1997 he served in the North Caroliza 
General Assembly in a leadership position, Representative Wood ran for Congress in the 
Twelfth District under the 1998 Plan and is convinced that the 1997 Plan divided High Point and 
Guilford County along racial lines for 2 predominantly racial motive. 

As their third witness, Plaintiffs called Represcatative John Weatherly of King's 
Mountain, North Carolina, a member of the North Carolina General assembly during the 
considernilin of the 1997 and 1998 redistricting plans who had previously served on a 
commission considering the State's legislative process. Representative Weatherly testified that 
he introduced legislation to facilitate te redistricting process through the use of a redistricting 
commission and that, on the basis of bis political and legislative experience, he believed that 
both Districts 1 and 12 were drawn with a predominantly racial motive, 

Plaintiffs’ fourth witness was R. O, Everett, a longtime resident of Salisbury, North 
Carolina who has been active in politics and has run for the state legislature. Mr. Everett 

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-_nn i UDGE BOYLE 

  

testified that he was familiar with the congressional districts in the Salisbury and Rowan County 
areas and is convinced that District 12 was drawn with a predominantly racial motive, 

Plaintiffs’ fifth witness was IH. Froelich Je, a lifetime resident of High Point, NC who 
testified that he has been active jn state and [ocal politics and befiaves that Guilford County was 
divided with a predominantly racial motive ; in both the 1992 and [997 Plans and that the 1597 
Plan's District 12 was drawn with a predominantly racial motive. 

Plaintiffs’ sixth witness was Neil Williams, a resident of Charlotte who served on its city 
council, is familiar with the Mckay County precincts, and ran for Congress in the 1992 
Plan's District 9. Mr. Williams testified that hel Is convinced that Mecklenburg County was 
divided along racial lines with a predominant racial motive and that the 1997 Plan's District 12 
was drawn with a predominantly racial motive, 

Plaintiffs’ seventh witness was Don Frey of the North Carolinz General Assembly's 
Information Systems Division, who presented statistical data from the Genera] Assembly's 
database, including relative numbers of persons moved from the 1992 Plan to the 1997 Plax, and 
current precincts split by the 1997 Phin, 

Plaintiffs’ eighth and fina] witness, whose testimony carried over into the second day of 
trial, was Dr. Ronald Weber of the University of Wisconsin. Dr. Weber testified as an expert 
political scientist who has studied, consulted on, and testified in many redistricting cases. 
Referring to maps and other data, Dr. Weber testified that race predominated in the construction 
of Districts 1 and 12 under the 1997 Plan, and that cities, counties and precincts were divided 
along racial lines. Dr. Weber concluded that no motivation other than race could adequately 
explain the legislature's decisions to include, exclude, or split certain precincts. 

Beginning on November 30, the second day of trial, the Defendants called four witnesses. 

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Mar 07 QQ 04:456p CHIEF JUDGE BQYLE 

  

Defendants’ first witness was Senator Roy Asberry Cooper, III, who testified as to the legislative 
history and enactment of the 1997 Plan in the North Carolina Senate, focusing on the creation of 
Districts | and 12. Senator Cooper testified that he was unsure whether he could get the 1997 
Plan pre-cleared by the Justice Department without creating a majority-minority First District. 
Senator Cooper's testimony also brought to light a February 10, 1997 email message (the 
"Cohen-Cooper Email") sent to him by Director of Bill Drafting Gerry Cohen, a state employee 
en with the technical aspect of drawing the districts in 1991, 1992, and 1997 Plans. The . 
Cohen-Cooper Email stated, in part, that "By shifting areas in Beaufort, Pitt, Craven and Jones 
Counties, I was able to boost the minority percentage in the first district from 48.1% to 49.25%. 
The district was only plurality white, as the white percentage was 49.67%." (Exhibit 58; Trial 
Transcript at 438) The emai] continues, "This was all the district could te improved by 

switching between the [* and 3" unless I went into Pasquotank, Perquimans , or Camden. Iwas 
able to make the district plurality black by switching precincts between the 1% and 4% 
(Exhibit 58, Trial Transcript at 438) The Cohen-Cooper email also states that "| [Cohen] have 
moved Greensboro Black Snatinty into the 12* and now need to take bout [sic] 60,000 out of 
the 12% [ await your direction on this." (Exhibit 58, Trial Transcript at 412) 

The senator stated that he did not remember receiving the Cohen-Cooper email and 
denied having given Cohen "specific instructions." (Trial Transcript at 413, 438) 

Additionally, Senator Cooper was questioned about a statement he made to the March 25, 
1997 meeting of the House congressional redistricting committec, in which he argued that the 
1997 Plan "provides for a fajr geographical, racial and partisan balance throughout the state of 
North Carolina." (Trial Transcript at 429) The senator claimed that the term "partisan balance" 
referred to maintaining the six-six Democrat-Republican split in the congressional delegation, 

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Mar U7 00 04:46p 

   

  

CHIEF JUDGE BOYLE 

    

but denied that the term "racial balance" would refer to maintaining the ten-two balance between 
whites and African Americans. (Trial Transcript at 429- -30) Senator Cooper admitted that race 
was "one of the factors that was considered” in drafting the 1997 Plan, and that but denied that it 
was the predominant factor. (Trial Transcript at 430) 

Defendants began the third day of trial with their second witness, Representative W. 
Edwin McMahan, who testified as to the legislative history and enactment of the 1997 Plan in 
the North Carolina House of Representatives, Sapeilly the creation of Districts 1 and 12. 
Representative McMahan claimed that race was not the predominant factor in the creation of 
those districts. 

Defendants’ third witness was Dr. David Peterson of the University of North Carolina at 
Chapel Hill's Department of Geography and Sciences. Dr. Peterson presented a statistical 
analysis of data regarding the question whether race predominated over party affiliation in the 
construction of the 1997 Plan's District 12. Dr. Peterson also discussed the variance between 
Democratic registration and voting behavior, and analyzed Dr. Weber's reasoning on the 
predominance of race as a factor in the creation of District 12. In contrast to Dr. Weber, Dr. 
Peterson's conclusion was that political considerations, rather than race, might possibly account 
for the legislature's decisions to include, exclude, or split certain precincts. 

Defendants’ final witness was Gerry Cohen, Director of Bill Drafting for the North 
Carolina General Assembly. Mr. Cohen testified as to the legislative history and enactment of 
the 1997 Plan, especially with rnd to Districts 1 and 12, as well as the technical aspects of 
redistricting, including the computer systems used. 

FACTS 

As discussed above, in 1992 the State of North Carolina established a new set of 

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UU U4: 4bp i JUDGE BOYLE 

  

proposed congressional districts. This 1992 Plan created two districts, the First and the Twelfth, 
that were challenged by a group of plaintiffs who claimed that the State had deliberately 
segregated voters into districts op the basis of race without compelling justification. In Shaw v. 
Reno (“Shaw I), the United States Supreme Court held that this allegation stated a claim for 
relief under the Equal Protection Clause of the F ourteenth Amendment. 509 U.S, 630, 658, 113 
S.Ct. 2816, 125 L.Ed.2d 511 (1993). 

On remand, the District Court found that North Carolina’ s Twelfth District created by the 
1992 Plan classified voters by. race, but that the plane lacked standing to challenge the First 
District. In Shaw II, the United Blaise Supreme Court affirmed this finding and further held that 
the State had not established that its reapportionment scheme was narrowly tailored to serve a 
compelling state interest, and therefore the 1992 Plan failed the requisite “strict scrutiny” test. 
517 U.S. 899,116 S. Ct. 1894. 

The North Carolina General Assembly convened in regular session on January 29, 1997, 
and formed redistricting committees to address the defects found in the 1992 Plan These newly 
formed House and Senate Committees 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. Affidavit of Skid) Roy A. Cooper, III ("Cooper Aff") 13. In 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 pew plan, and (2) 
drawing the plan to maintain the existing partisan balance in the State's congressional delegation. 
Cooper AE. 15,8, 10, 14; Affidavit of Gey O. Bartlett, Executive Secretary-Director of the 
State Board of Elections ("Bartlett Aff"), Vol. I Commentary at 9-10. . 

To achieve the second goal, the redistricting committees drew the new plan (1) to avoid 

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Mar 07 00 04:46p CHIEF JUDGE BQYLE 

  

placing two Incimbents in the same district and @) to preserve the partisan core of the existing 

districts to the extent consistent with the goal of curing the defects in the old plan. Cooper Aff. 

114. The plan as enacted largely reflects these directives: incumbent Congressmen generzlly do 

not reside in the same district, and each district retains at least 60% of the population of the old 

district. Cooper Aff. 18, Affidavit of Representative W. Edwin McMahan ("McMahan AFF") 47. 
3 The Twelfth Congressional District   

District 12 is one of the six predominantly Democratic districts established by the 1997 

Plan to melniede the 6-6 partisan division in No Carolina's congressional delegation. District 

12 is not a majority-minority district, but 46.67 percent of its total population is African- 

American, Bartlett Aff, Vol. I Commentary at 10 and 11. District 12 is composed of six 

counties, all of them split in the 1997 Plan. The racial composition of the parts of the six sub- 

divided counties assigned to District 12 include three with parts over 50 percent African- 

American, and three in which the African-American percentage is under 50 percent. Declaration 

of Ronald E. Webber ("Webber Dec.") 18. However, almost 75 percent of the total population 

in District 12 comes from the three county parts which are majority African-American in 

population: Mecklenburg, Forsyth, and Guilford counties. Id. The other three county parts 

(Davidson, Iredell, and Rowan) have narrow corridors which pick up as many African- 

Americans as are needed for the district to reach its ideal size} 1d. 

  

? The Twelfth is not a majority-minority district as measured by any of three possible criteria. African-Americans constitute 47 percent of the total population of District 12, 43 percent of the voting age population of the District, and 46 percent of the registered voters in the District. Peterson Aff, at 8. 
: 

* An equitably populated congressional district in North Carolina needs a total population of about 552,386 persons using 1990 Census data. Weber Dec. 39. 

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Sv OT TP . UDGE BOYLE 

  

Where Forsyth County was split, 72.9 percent of the total population of Forsyth County 
allocated to District 12 is Afican-Amedcan while only 11.1 percent of its total population 
assigned to » neighboring District § is African-American. Id. 120. Similarly, Mecklenburg 
County is split $0 51.9 percent of its total population allocated to District 12 is African- 
American, while only 7.2 percent of the total population assigned to adjoining District 9 is 
African-American. 

A similar pattem emerges when analyzing the cities and towns split between District 12 
and its surrounding districts: the four largest cities assigned to District 12 are split along racial 
lines. Id. 23. For example, where the City of Charlotte is split between District 12 and adjacent 
District 9, 59.47 percent of the population assigned to District 12 is African-American, while 
only 8.12 percent of the Charlotte population assigned to District 9 is African-American. 
Affidavit of Martin B. McGee ("McGee AFL"), Ex. L. And where the City of Greensboro is 
split, 55.58 percent of the population assigned to District 12 is African-American, while only 
10.70 percent of the population Sito to District 6 is African-American. Id. 

An analysis of the voting precincts immediately surrounding District 12 reveals that the 
legislature did not simply create a majority Democratic district amidst surrounding Republican 
precincts. For example, around the Southwest edge of District 12 (in Mecklenburg County), th 
legislature included within the district's borders several precincts with racial compositions of 40 
to 100 percent Aorta merionn while excluding from the district voting precincts with less 
than 35 percent African-American population, but bevy Democratic voting registrations. 
Among Mecklenburg County precincts which are immediately adjacent to District 12, but not 
inside it, are precincts with 58.818 percent of voters registered as Democrats, and precincts that 
are 56.464 percent Democratic, 54.213 percent Democratic, 59.135 percent Democratic, 59.225 

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   Mar 07 00 04:47p 

  

CHIEF JUDGE BOYLE 

    

percent Demudbet 54.498 percent Democratic, 59.098 percent Democratic, 55.72 percent 

Democratic, 54.595 percent Democratic, 54.271 percent Democratic, 63.452 percent 

. Democratic, and 59.453 percent Democratic, 14, Ex. P. Similarly, Forsyth County precincts 

that are immediately adjacent to, but not inside, District 12 include precincts with 57.371 percent 

Democratic registration, 65.253 percent Democratic registration, 65.747 percent Democratic 

registration, 65.747 percent Democratic registration, 76 percent Democratic registration, 53.057 

percent Democratic registration, 35.907 percent Democratic registration, 56.782 dercwid 

Democratic registration, 55.836 percent Democratic registration, and 60.113 percent Democratic 

registration. Id., Ex. O. Finally, District 12 was drawn to exclude precincts with 59.679 percent 

Democratic registration, 61.86 percent Democratic registration, ss. 145 percent Democratic 

registration, 62.324 percent Pentel tibet, 60.209 percent Democratic registration, 

56.739 percent Democratic registration, 66.22 percent Democratic registration, 57.273 percent 

Democratic registration, 55.172 percent Democratic registration, and 63.287 percent Democratic 

registration, all in Guilford County. Id., Ex. N. 

On the North Carolina map, District 12 has an irregular shape and is barely contiguous in 

parts. Its Southwest corner lies in Mecklenburg Colt, very close to the South Carolina border, 

and includes parts of Charlotte. The District moves North through Rowan County and into 

Iredell County. There it juts West to pick up parts of the City of Statesville. More than 75 

percent of the Statesville population that is included in District 12 is African-American, while 

only 18.88 percent of the population of Statesville excluded from District 12 is African- 

American. McGee Aff. Ex. L. From Statesville, the District moves East into Rowan County. 

There it dips to the South to include Salisbury, before turning to the Northeast and entering 

Davidson County and the City of Thomasville. Over 4] percent of the populations of Salisbury 

12 

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CHIEF JUDGE BQYLE Ug 04:47p 

    

and Thomas that are included in District 12 are African-American, while only 15.39 and 

9.55 percent, respectively, of those that are excluded from the District are African American. Id. 

The District makes a northwesterly incursion into Forsyth County to include parts of Winston- 

Salem, where 77.39 percent of the population within District 12 is African-American, and only 

16.06 percent of the population left out is African-American. Id. The District moves to the East 

and — dramatically before opening up again include the predominantly African- 

American parts of Greensboro, where the District ends. 

Objective, numerical studies of the compactness of congressional districts are also 

available. In his report, "An Evaluation of North Carolina's 1998 Congressional Districts," 

Professor Gerald R. Webster, one of the Defendants’ expert witnesses, presents statistical 

analyses of "comparator compactness indicators" for North Carolina's congressional districts 

under the 1957 Plan. In measuring the districts’ dispersion compactness® and perimeter 

compactness,’ Professor Webster offers two of the "most commonly recognized and applied" 

compactness indicators. Webster, at 13 (citing Pildes & Niemi, Expressive Harms, "Bizarre 

Districts," and Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno, 92 

Mich.L.Rev. 483, 571-573, table 6 (1993) (hereinafter, "Pildes & Niemi"); and ses Bush v. Vera, 
  

S17U.S. 952, —, 116 8. Ct. 1941, 1952, 135 L.Ed.2d 248 (1996) (citing Pildes & Niemi 
  

* "Dispersion compactness" measures the geographic "dispersion" of a district. To calculate this a circle is circumscribed around a district. The reported coefficient is the proportion of the area of the circumscribed circle which is also included in the district. This measure ranges from 1.0 (most compact) to 0.0 (least compact). Webster, at 14. 

* "Perimeter compactness" is based upon the calculation of the district's perimeter. The reported coefficient is the proportion of the area in the district relative to a circle with the same perimeter. This measure ranges from 1.0 (most compact) to 0.0 (least compact). Webster, at 14. The equation used here is (4 x IT) x Area of district) + (District's Perimeter2)). Webster, at table 3. : 
; 

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JO CA: TCP i UDGE BQYLE 

p 

     

compactness factors as supporting evidence for holding three Texas congressional districts 

unconstitutional). 

In discussing the relative normalcy of various compactness welehtis Pildes and Niemi 

suggest that a "low" dispersion compactness measure would be equal to or less than 0.15. Pildes . 

. & Niemi, at 564. They suggest that a "low" perimeter compactness measure is equal to or less 

than 0.05. Id. North Carolina's Twelfth Congressional District under the 1997 Plan bes a 

dispersion compactness indicator of 0.109 and a perimeter compactness indicator of 0.041. 

Webster, at table 3. These figures are much lower than the mean compactness indicators for 

North Carolina's twelve congressional districts under the 1997 Plan. The average dispersion 

compaciiess indicator for the State is 0.3 34, and the average perimeter compactuess indicator is 

0.192. Id. The next lowest dispersion compactness indicator after District 12 is the 0.206 in the. 

Fifth Congressional District, and the next lowest perimeter compactness indicator is the First 

Congressional District's 0.107. Id.” | 

Thus, it is clear that even after the changes detailed above, the primary characteristic of 

the Twelfth District is its “racial archipelago,” stretching, bending and weaving to pick up 

predominantly African-American regions while avoiding many closer and more obvious regions 

of high Democratic registration, but low African-American population. 

IL The First Congressional District     

District | is another predominantly Democratic district established by the 1997 Plan. 

Unlike District 12, itis a majority-minority district, based on percentages of the total population 

of the District,’ as 50.27 percent of its tota] population is African-American. 1d., Vol. I 
  

® While 50.27 percent of the total population of District I is African-American, only 46.54 percent of the voting age population is African-American, based og the 1990 census data. 

14 

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Commentary # 10. District 1 is composed of ten of the 22 counties split in drawing the 

statewide 12 district 1997 Plan. Weber Dec, 116. Half of the twenty counties represented in 

District | are split. Id. Of the ten sub-divided counties assigned to District 1, four have parts 

with over 50 percent African-American population, four others have parts with over 40 percent 

African-American population, and two others have parts with oh 30 percent African-American 

population. Id., 17. 

In each of the ten counties that are split between District 1 and an adjacent district, the 

percent of the population that is African-American is higher inside the district than it is outside 

the district, but within the same county. Id., {19 and Table 2. The disparities are less significant 

than in the county splits involving District 12. Id., Table 2. Fur example, where Beaufort 

Counly is split between Districts 1 and 3, 37.7 percent of the total population of Beaufort County 

* allocated to District 1 is African-American, while 22.9 percent of the total population of 

Boguliri County assigned to District 3 is African-American. 

Similarly, nine of the 13 cities and towns split between District | and its neighboring 

districts are split along racial lines. Id, 122. For example, where the City of New Ber is split 

between District 1 and adjacent District 3,48.27 percent of the population assigned to District 1 

+ is African-American, while 24.49 gosto of the New Bern population assigned to District 3 is 

African-American McGee Aff. Ex. i 

Viewed on the North Carolina map, District 1 is not as irregular as District 12. In the 

North, it spans 15 1.2 miles across, from Roxboro, Person County, in the West, to Sunbury, Gates 

County, in the East. Affidavit of Dr. Alfred W. Stuart ("Stuart Aff."); table 1. Itis shaped 

  

Bartlett Aff, Vol. I Commentary at 10. 

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H OGE BOYLE 

  

roughly like thé state of Florida, although the protrusion to the South from its “panhandle” is 

only approximately 150 miles long (to Goldsboro, Wayne County, with two irregularities jutting 

into Jones, Craven, and Beaufort Counties. Cooper Aff, attachment. These irregularities 

surround the peninsular extension of the Third Congressional District from the East, allowing the 

incumbent from the dei Third Congressional District to retain his residence within the 

boundaries of the same district, and avoiding placing two incumbents in District 1. 

The "comparator compactness indicators" from District 1 are much closer to the North 

Carolina mean compactness indicators than are those from District 12. For example, District 1 

has a dispersion compactness indicator of 0.317 and a perimeter compactness indicator of 0.107. 

Webster, at table 3. This dispersion compactness indicator is not significantly lower than the 

State's mean indicator of 0.354, and is hier than the dispersion compactness indicators of 

Districts 12 (0.109), 9 (0.292), and 5 (0.206). Id. It may be noted that Districts 5 and 9 are next 

to, and necessarily shaped by, District 12. District 1 has a perimeter compactness indicator of 

0.107, which is lower than North Carolina's mean perimeter compactness indicator (0.192), but 

much higher than Pildes and Niemi's suggested "low" perimeter compactness indicator (0.05). 

District 1's perimeter compactness indicator is also much higher than that of District 12 (0.041). 

Id. 

DISCUSSION 

L Applicable Law and Standard of Review 
  

The Equal Protection Clause of the United States Constitution provides that no State 

"shall deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. 

amend. 14, § 1. The United States Supreme Court explained in Miller v Johnson, 515 Us, at 
  

904, 115 S. Ct. at 2482, that the central mandate of the Equal Protection Clause "is racial 

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Nar O07 00 C4:43p CHIEF JUDGE BQYLE . 

° # 

neutrality in governmental decisionmaking." Application of this mandate clearly prohibits 

purposeful discrimination between individuals on the basis of race. Shaw v. Reno, 509 U.S. 630, 
  

642, 113 S. Ct. 2816, 2824, 125 L.Ed.2d 511 (1993) ("Shaw I") (citing Washington v. Davis, 426 
  

U.S. 229, 239, 96 S. Ct. 2040, 2047, 48 L.Ed.2d 597 (1976)). 

As the Supreme Court recognized, however, the use of this principle in "electoral 

districting is a most delicate task." Miller, 515 U.S., at 905, 115 S. Ct., at 2483. Analysis of 

suspect districts must begin from the premise that "[1Jaws that explicitly distinguish between 

individuals on racial grounds fall within the core of (the Equal Protection Clause's] prohibition." 

Shaw I, 509 U.S, at 642, 113 S. Ct., at 2824. Beyond that, however, the Fourteenth 

  

Amendment's prohibition "extends not just to explicit racial classifications," Miller, SIS U.S., at 

905, 115 S. Ct., at 2483, but also to laws, neutral on their face, but "unexplainable on grounds 

other than race," Arlincton Heights v. Metropolitan Housing Development Corp., 429 U.S. 252,   

266, 97 S. Ct. 555, 564, 50 L.Ed2d 450 (1977). 

In challenging the constitutionality of a State's districting plan, the "plaintiff bears the 

burden of proving the race-based motive and may do so either through ‘circumstantial evidence 

of a district's shape and demographics’ or through 'more direct evidence going to legislative 

purpose.” Shaw ll, 517 U.S. at--, 116 S. Ct. at 1500 (quoting Miller, 515 U.S. at 916, 115 S. 

Ct. at 2488). In the final analysis, the plaintiff must show "that race was the predominant factor 

motivating the legislature's decision to place a significant number of voters within or without a 

particular district." Id. (quoting Miller, 515 U.S., at 916, 115 8S. Ct. at 2488). 

Once a plaintiff demonstrates by a preponderance of the evidence that race was the 

predominant factor in redistricting, the applicable standard of review of the new plan is "strict 

scrutiny." Thus, id Miller the Supreme Court held that strict scrutiny applies when race is the 

17 

   



    

Mar 07 OQ Q4:43p CHIEF JUDGE BQYLE gi 

"predominant" consideration in drawing the district lines such that "the legislature subordinate[s] 
race-neutral districting principles . . . to racial considerations." 515 U.S., at 016,1158. Ct. at 
2488. Under this standard of review, a State may escape censure while drawing racial 

distinctions only if it is pursuing a "compelling state interest." Shaw II. 517 US,at— 1168S. 

  

Ct, at 1902, 

~ However, "the means chosen to acconiplish the State's asserted purpose must be 

specifically and narrowly framed to accomplish that purpose." Wveant v, Jackson Bd. of Ed. 
  

476 U.S. 267, 280, 106 S. Ct. 1842, 1850, 90 L.Ed2d 260 (1986) (opinion of Powell, J.). As the 
Supreme Court required in Shaw II, where a State's plan has been found to be a racial 

gerrymander, that State must now it not only that its Cetisrbing plan was in pursuit of a 
compelling state interest, but also that ts districting legislation is narrowly tailored ta achieve 
that compelling interest." 57 U.S, at —, 116 S. Ct, at 1902. 

We are cognizant of the rinciple that "redistricting and reapportioning legislative bodies 
P P g 2p g eg 

is a legislative task which the federa] courts should make every effort not to preempt." Wise v. 
Lipscomb, 437 U.S. 535, 539, 98'S. Ct. 2493, 2497, 57 L.Ed2d 411 (1978) (citations omitted), 
"A State should be given the opportunity lo make its own redistricting decisions so long as that 
is practically possible and the State chooses to take the opportunity. When it does take the 
opportunity, the discretion of the federal court is limited except to the extent that the plan itself 
runs afoul of federal law." Lawvery. Dep't of Justice, — U.S. —, —, 117 8. Ct. 2186, 2193,   

133 L.Ed2d 669 ( 1997) (internal citations omitted).” Thus, when the federal courts declare an 
  

"The dissent charges that we "; gnore[] the principles of federalism which require federal courts to exercise restraint," and alludes to the dangers of "judicial activism." This is a disturbing accusation, as a federal court cannot shrink away from the enforcement of the United States Constitution and federal law. The standard of equal protection under law established in 

 



  

   

  

J U4:43p CHIEF JUDGE BOYLE 

apportionment silica unconstitutional-as the Supreme Court did in Shaw II-it is appropriate, 

"whenever practicable; to afford a reasonable opportunity for the legislature to meet 

constitutional requirements by adopting a substitute measure rather than for the federal court to 

devise and order into effect its own plan. The new legislative plan, if forthcoming, will then be 

the governing law unless it, too, is challenged and found to violate the Constitution." Wise, 437 

U.S, at 540, 98 S. Ct., at 2497. 

IL The Twelfth Congressional District   

As noted above, the final decision of the three-judge panel in Shaw only approved the 

1997 Congressional Redistricting Plan "as an adequate remedy for the specific violation of the 

individual equal protection rights of those plaintiffs who successfully challenged the legislature's 

  

creation of former District 12." Shaw v. Hunt, No. 92-202-CIV-5-BR, zt 8 (E.D.N.C. Sept. 12, 

1997). This panel must thus decide whether the 1997 Plan’s Twelfth District violates the equal 

protection rights of the Plaintiffs who live within the district and challenge its constitutionality. 

  

the latter half of the 20 century is the direct result of federal courts’ defense of constitutional principles in the face of state resistence. We would point our distinguished colleague to the 
words of the late Judge Frank Johnson: 

It must be emphasized that, when governmental institutions fail to make ... judgment and decisions in a manner which comports with the constitution, federal courts have a duty to remedy the violation, In summary, it is my belief that the 
judicial activism which has generated so much criticism is, in most cases, not 
activism at all. Courts do not relish making such hard decisions and certainly do 
not encourage litigation on social and political problems. 

But the federal judiciary in this country has the paramount and the 
continuing duty to uphold the law. When a "case or controversy" is properly presented, the court may not shirk its sworn responsibility to uphold the 
Constitution and laws of the United States. The courts are bound to take 
jurisdiction and decide the issues, even though those decisions result in criticism. 
The basic strength of the federal judiciary has been, and continues to be, its 
independence from political and social pressures. 

Frank M. Johnson, Jr., Judicial Activism is a Duty-Not an Intrusion, VIEWS FROM THE BENCH: THE JUDICIARY AND CONSTITUTIONAL POLITICS 279, 283-4 (1985). 

19 

.18 

 



  

Mar 07 00 04:50p CHIEF JUDGE BOYLE 

      

In holding that District 12 under the 1992 Plan was an unconstitutional racial 

gerrymander, the Supreme Court in Shaw II noted, “[n]o one looking at District 12 could 

  

reasonably suggest that the district contains a 'geo graphically compact’ population of any race." 

517U.S.,, at—, 116 S. Ct., at 1906. The Shaw II Court thus struck the old District 12 as 

unconstitutional as a matter of law. | In atiarits North Carolina's congressional districts in 

1997 the General Assembly was, of course, aware that District 12 under the 1992 Plan had been 

declared unconstitutional; curing the constitutional deficiencies was one of the legislature's 

declared goals for the redistricting process. Cooper Aff. §15, 8, 10, 14. 

Defendants now argue that the changes in District 12 between the 1992 and 1997 Plans 

are dramatic eet) to cure it of its constitutional defects. They point to the fact that the new 

District 12 has lost nearly one-third (31.6 percent) of the population from the 1992 district and 

nearly three-fifths (58.4 percent) of the land. These numbers neither advance the Defendants’ 

argument nor end the Court's inquiry. As Defendants themselves note, the Court's role is limited 

to determining "whether the proffered remedial plan is legally unacceptable because it violates 

anew constitutional or statutory voting rights—that is, whether it fails to mest the my standards 

applicable to an original challenge of a legislative plan in place." McGhee v. Granville County, 
  

860 F.2d 110, 115 (4* Cir. 1988) (citing Upham v. Seamon, 456 U.S. 37, 42, 102 S. Ct. 1518, 

1521, 71 LEd2d 725 (1982)). A comparison of the 1992 District 12 and the present District is 

of limited value here. The issue in this case is whether District 12 in the 1997 Plan violates the 

equal protection rights of the voters esliing within it, 

In Shaw I, the Supreme Court described the 1992 Plan’s District 12 as "unusually 

shaped...approximately 160 miles long and, for much of its length, no Yi: than the [Interstate]- 

835 corridor. It winds in snake-like fashion through tobacco country, financial centers, and 
J 

20 

 



  

manufacturing areas until it gobbles in enough flied of black neighborhoods." 509 U.S., at 

635-636, 113 S. Ct., at 2820-2821 (internal quotations omitted). The 1997 Plan’s District 12 is 

similar: it is "unusually shaped.” it is “snake-like,” and it "gobbles in" Afiern-Amarican 

population centers. The evidence establishes that although its length has been shortened by 

approximately 65 miles, it still winds from Charlotte to Greensboro along the Interstate-85 

corridor, detouring to envelop heavily African-American portions of cities such as Sterile, 

Salisbury, ol Winston-Salem. It also connects communities not joined in a congressional 

district, other than in the unconstitutional 1992 Plan, since the whole of Western North Carolina 

was one district, nearly two hundred years ago. 

As Scased above, where cities and counties are split between the Twelfth District and 

neighboring districts, the splits invariably occur along racial, rather than political, lines—the 

parts of the divided cities and counties having a higher proportion of African-Americans are 

always included in the Twelfth. Defendants argue that the Twelfth was drawn not with race, but 

rather politics and partisanship in mind. They have described the District as a "Democratic 

island in a Republican sea," and presented expert evidence that political identification was the 

predominant factor determining the border of District 12. Affidavit of David W. Peterson 

("Peterson Aff."). As the uncontroverted evidence demonstrates, however, the legislators 

excluded many heavily-Democratic precincts from District 12, even when those precincts 

immediately border the Twelfth and would have established a far more compact district. The 

only clear thread woven throughout the districting process is that the border of the Twelfth 

district meanders to include nearly all of the precincts with African-American population 

proportions of over forty percent which lie between Charlotte and Greensboro, inclusive. 

As noted above, objective measures of the compactness of District 12 under the 1997 

21 

   



* | ® 

Plan reveal that it is still the most geographically scattered of North Carolina's congressional 

districts. When Si to other previously challenged and reconstituted congressional 

districts in North Carolina, Florida, Georgia, Illinois, and Texas, District 12 does not fare well. 

The District's dispersion and perimeter eomichlns indicators (0.109 and 0.041, respectively) 

are lower than those values for North Carolina's District 1 (0.317 and 0.107 under the 1997 

Pla). Similarly, the District suffers in sopntison to Florida's District 3 (0.136 and 0.05), 

Georgia's District 2 (0.541 and 0.411) and District 11 (0.444 and 0.259), Illinois’ District 4 

(0.193 and 0.026), and Texas District 18 (0.335 and 0.151), District 29 (0.384 and 0.178), and 

District 30 (0.383 and 0.180). 

Additionally, Plaintiffs’ expert , Dr. Weber, showed time and again how race trumped 

party affiliation in the construction of the 12 District and how political explanations utterly 

failed to explain the composition of the district. (Trial Transcript at 162-3, 204-5, 221,251,262, 

288. Of particular note is Dr. Weber's contention that a much more compact, solidly Democratic 

12 District could have been created had race not predominated over traditional political 

considerations in the redistricting process. (Trial Transcript at 220-1) Additionally, Dr. Weber 

showed that, without fail, Democratic districts adjacent to District 12 yielded their minonty areas 

to that district, retaining white Democratic precincts. (Trial Transcript at-25 5-6). This testimony 

served to undermine Defendants’ contention that race was merely a factor in creating the 1997 

Plan's 12% District, and that a desire to place high-performance Democratic areas (which happen 

to contain minority populations) within Democratic districts could explain the construction of 

the 12". 

The conclusion that race predominated was further bolstered by Senator Cooper's 

allusion to a need for "racial and partisan balance," cited above. The senator's contention that 

22  



  

although he used the term "partisan balance" to refer to the maintenance of a six-six Democrat- 

Republican split in the congressional delegation, he did not mean the term "racial balance" to 

refer to the maintenance of a ten-two balance between whites and African Americans is simply 

not credible. (Trial Transcript at 429-30) 

Dr. Weber, who has testified as an expert in redistricting cases in Louisiana, Texas, 

Georgia, Virginia and Florida, also presented a convincing critique of the methodology used by 

Defendants’ expert witness, Dr. Peterson. (Trial Transcript at 145) Dr. Weber characterized Dr. 

Peterson's boundary segment analysis as non-traditional, creating “erroneous” results by 

"Ignoring the core" of each district in question. (Trial Transcript at 222-4) In summary, Dr. 

Weber found that Dr. Peterson's analysis and report "has not been appropriately done," and was 

therefore "unreliable" and not relevant. (Trial Transcript at 232) 

Finally, the Cooper-Cohen email, discussed above, clearly demonstrates that the chief 

architects of the 1997 Plan had evolved a methodology for segregating voters by race, and that 

they had applied this method to the 12* District. The Cooper-Cohen email refers specifically to 

the categorization of sections of Greensboro as "Black," and a scheme by which this section was 

added to the 12% District, creating a need to "take about 60,000" other citizens out. (Exhibit 58) 

It is also relevant as evidence of the means by which the 1997 Plan's racial gerrymandering 

could be achieved with scientific precision, as the precise racial composition of another district 

(the First) is discussed at length, along with plans to “improve” that district by "boost[ing] the 

minority percentage." (Exhibit 58) 

The computer system used by the sliyhas the capacity to identify and apportion ian 

based on race, and to determine the exact racial make-up of each district. The Cohen-Cooper 

23 

   



  

Mar 07 00 Q04:55p CHIEF JUDGE BOYLE 

  

   
email reveals that exact racial percentages were used when constructing districts.® Given that the 

Supreme od struck down the 1992 Plan's 12% District, the clear inference here is that a motive 

existed to compose a new 12° District with just under a majority minority in order for it not to 

present a prima facie racial gerrymander. In fact, S enator Cooper argued before the legislature 

that the Shaw test for constitutionality would not be triggered because the 12" District was not a 

  

majority minority district. (Trial Transcript at 440-1) But using a computer to achieve a district 

that is just under 50% minority is no less a predominant use of race than using it to achieve a 

district that is just oor 30% minority. 

Based on the extensive direct and circumstantial evidence presented at trial, the Court 

finds as a matter of fact that the General Assembly, in redistricting, used criteria with respect to 

the Twelfth District that are facially race driven. Itis clear that the Twelfth District was drawn 

to collect precincts with high racial identification rather than political identification. 

Additionally, the evidence demonstrates that precincts with higher partisan representation (that 

is, more heavily Democratic precincts) were bypassed in the drawing of District 12 in favor of 

precincts with a higher African-American population. The legislature eschewed traditions] 

districting criteria such as contiguity, geographical integrity, community of interest, and 

compactness in redrawing the District as part of the 1997 Plan. Instead, the General Assembly 

utilized race as the predominant factor in drawing the District 

  

*Senator Cooper claimed that the final percentage composition of District 12 was sheer 
happenstance. (Trial Transcript at 427-8) The explicit discussion of precise percentages in the 
email belies this characterization. | 

> The Supreme Court has indicated that, when drawing congressional districts, race may 
not be used as a proxy for political characteristics. Vera v. Bush, 517 U.S. 952, —, 116 S. Ct. 
1941, 1956, 135 L.Ed.2d 248 (1996). : : 

  

24 

 



            

F JUDGE BOYLE 

    

This Court finds that, in contrast to the state's claims regarding the 1* District, no 

evidence of a compelling state interest in utilizing race to create the new 12% District has been 

presented. Purlier. even # such an interest did exist, the 12% District is not narrowly tailored and 

therefore cannot survive the prescribed “strict scrutiny.” The 1997 Plan's District 12 is an 

impermissible and unconstitutional racial gerrymander in violation of the Equal Protection 

Clause. 

To remedy these constitutional deficiencies, the North Carolina legislature must redistrict 

the 1997 Plan in such a way that jt avoids the deprivation of the voters equal protection rights 

not to be classified on the basis of race. This mandate of the Court leaves the General Assembly 

free to use other, proper factors in redliitns the 1997 Plan. The legislature may consider 

traditional districting criteria, such zs incumbency considerations, to the extent consistent with 

curing the constitutional defects. See Shaw II, 517 U.S, at —, 116. Ct., at 1901 (describing 

"race-neutral, traditional districting criteria"). 1 

LI. First Congressional District   

The three-judge panel in Shaw never ruled on the constitutionality of (he 1992 Plan's 

First Congressional District. Standing problems on the part of the Shaw plaintiffs forced that 

court to narrow its focus to adjudicate only the issues raised regarding the Twelfth District. A 

comparison of the First and Twelfth Districts under the 1992 Plan reveals, however, that they are 

similarly egregious in their construction and that the First District would certainly have been 
  

“Our distinguished colleague's dissent treats the standing of Plaintiff Linville at some length Defendants moved to dismiss him from the instant suit, arguing that he did not live within the 1997 Plan's 12° District. This motion was deaied al trial Trial Transcript at 327, As there is standing on behalf of a plaintiff or plaintiffs with respect to each of the challenged districts, Plaintiff Linville's standing is moot as to this Court's ability to reach a decision in the instant case. Thus, we decline to elaborate op the standing issue. 

25 

 



  

JJ" U4: oop CHIEF JUDGE BOYLE 

  

subject to the same finding that it was not narrowly tailored. Both were majority-minority ; 
districts under the 1992 Plan, and neither evidenced even minimal geographical compactness. 

The 1997 Plan's First District, once again presents this Court with a majority-minority 
district, this ime containing a population that is 50.27 percent African-American, as opposed to 
the Twelfth District's 46.67 percent. The First District is, WL far more compact than the 
Twelfth and its shape is less irregular, as we have seen above, 

. This Court finds as a matter of fact that, under the 1992 Plan, the First District was not 
narrowly tailored and therefore (hat district was in violation of the Constitution, The evidence 
presented by the Defendants does not dispute this finding. 

The statements of several key players in the 1997 redistricting process clearly show that, 
in an effort to gain pre-clearance under the Section 2 of the Voting Rights Act, 42 U.S.C. § 1973, 
they allowed race to predominate in the creation of the 1% District. The Cohea-Cooper email is 
one such clear example, specifically referencing the desire to "boost the minority percentage in 
the first district" to create an "improved" district. The email €Xpases a process in which voters 
were categorized by race, then shifted in and out of the I* District by a computer program until a 
precise percentage of minority voters in the distri was achieved. No other credible explanation 
has been offered. 

The fact that race predominated in the construction of the 1* District is not surprising, 
The legislators faced the difficult task of remedying the unconstitutional aspects of the 1992 
Plan's 1* District while complying with the mandates of he Voting Rights Act, discussed below. 
Indeed, Senator Cooper acknowledged that he felt he had to have over 50% minority 
representation in the First District. (Trial Transcript at 440) This admission reveals that the 
racial composition of the district was seen as a mandate, a necessity. 

26 

 



  

Mar 07 00 04:56p CHIEF JUDGE BQYLE 

    

Thus, we further find that, in its 1997 Plan, the State continued to use race as the 

predominant factor in creating the majority-minority First District, and thus strict scrutiny must 

apply. This does not end our ay however. Defendants may show that the district was 

narrowly tailored to achieve a compelling government interest. 

Section 2 of the Voting Rights Act provides that "no voting qualification or prerequisite 

to voting or standard, practice, or procedure shall be imposed or applied by any State ...ina 

manner which results in a denial or abridgement of the right of any citizen of the Latte States to 

vote on account of race or color, .... " 42 U.S.C. § 1973(2) (1988). Congress instructed the 

courts, when determining whether a voting standard, practice, or procedure violates this 

prohibition, to examine "the totality of the circumstances” to ascertain whether "the political 

processes leading to nomination or election” are equally deen to citizens of all races. Id. § 

1973(b). Courts may also consider "[t]he extent to which members of a protected class have besa 

elected to office," but the Act expressly states it does not establish "a right to have members of a 

protected class elected in numbers equal to their proportion in the population.” Id. 

In Thornburg v. Gingles, the Supreme Court first examined the 1982 amendments to the   

Act. 478 U.S. 30, 34; 106 S.Ct. 2752, 2758; 92 L.Ed.2d 25 (1986). The Court found that the 

1982 amendments no longer required a showing of intentional discrimination in order to prove a 

violation of the Act. Id. at 35, 106 S.Ct. at 2758. The Court identified the following "necessary 

preconditions" toa § 2 claim: 

| "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 

27 

 



  

Mar 07:00 04:56p CHIEF JUDGE BQYLE 

  

. absence of special circumstances, such as the minority candidate running unopposed-- usually to 
defeat the minority's preferred candidate." Gingles, 478 U.S. at 50-5 1,1068.Ct. at 2766-67 

(footnotes and internal citations omitted). Once these preconditions are met, a court must 

consider the factors identified in the Senate Report accompanying the 1982 amendments. 1d. at 

43, 106 S.Ct. at 2765." 

Defendants presented evidence at trial to show that there was a strong basis for the 

Gener Assembly to have believed, at the time of the 1997 Plan's drafting, that the three Gingles 
preconditions and several of the factors set forth in the Senate Report existed in North Carolina. 

Specifically, the Defendants presented evidence that the African-American population in the 

area encompassed by District | was and is sufficiently large and geographically TO to 

constitute a majority in a congressional district. Additionally, Defeadants contend, and Plaintiffs 

have stipulated for the purposes of this trial, that the African-American population is politically 

cohesive. Further, Defendants contend, and Plaintiffs have stipulated for the purposes of this 

trial, that the white majority votes sufficiently as a block to often enable it to defeat the 

minority's preferred candidate, Finally, all parties agree that, for many decades, African- 

Americans in North Carolina were victims of racial discrimination, and that a substantial 

  

participate in the democratic process; (2) the extent to which voting in the elections of the state or political subdivision is racially polarized; (3) the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group; (4) if there is a candidate slaling pracess, whether the members of the minority group have been denied access to that process; (5) the extent to which members of the minarity group in the state or political subdivision bear the effects of discrimination in such areas as 

members of the minority group have been elected (o public office in the jurisdiction. SeaRep. Na. 417, 97th Cong., 2d Sess. 28-29 (1982), reprinted in 1982 U.S.C.C.AN. 177, 206-07. This list of factars, however, "is neither comprehensive nor exclusive.” Gingles, 478 U.S. at 45, 106 S.Ct. at 2763. 

28 

 



Mar 07 OO 04:56p CHIEF JUDGE BOYLE     
majority of the State's African-American population is still at a disadvantage in ery to 
white citizens with respect to income, housing, Seaton and health. 

This Court finds that Defendants have plead sufficient evidence to establish that the 
State Legislature of North Carolina did have a compelling reason to address race in the 
construction of the First District under the 1997 Plan. That compelling reason was the nesd to 
satisfy Section 2 of the Voting Rights Act in order to ensure that the State's Alieas-Anieionn 
population have equal access to the political process. 

Further, this Court fi oy that the specific composition of the First District's borders, while 
predominated by Tace, was narrowly tailored to meet the Section 2 requirements while also 
addressing other traditional, political considerations, including the desire to protect incumbency, 
both of a Democrat in the First District and a Republican in the Third District. The splitting of 
counties and lack of compactness display the interplay between these considerations: the 
borders were drawn to avoid putting two incumbents in a single district; the State Legislature 
intended to exclude as much of the First State Senatorial District from the 1997 Plan's 1" District 
as possible, resulting in modifications that forced the district's borders south and west. While 
race predominated, the legislature resisted the temptation to create a district reminiscent of the 
1992 Plan's 1* District, which reflected little or no effort to achieve a narrow tailoring. 

Thus, this Court finds that the 1997 Plan's 1* District meets the requisite standard of strict 
scrutiny. Race, while the predominant factor in its composition, was not impermissibly used in 
establishing its borders. There was a compelling state interest in obtaining pre-clearance under 
Section 2 of the Voting Rights Acl, and the 1* District was narrowly tailored to meet this 
interest. Thus we find that the 1997 Plan's 1* District does not present an unconstitutional lid 
gerrymander. 

29 

 



    

00 04:56p CHIEF JUDGE BOYLE S—— 

CONCLUSION 
  

For the reasons tioiiges above, this Court finds that the 1997 Plan's Twelfth District 

continues to be unconstitutional as presented. Defendants are enjoined from using the 

unconstitutional District 12 in future elections. The 1997 Plan's First District does not violate 

the Constitution and may thus be used in future elections. Defendants will have an opportunity 

to correct the constitutional defects in the 1997 Congressional Redistricting Plan stemming from 

the 12° District, in default of which the Court must undertake the task. 

SO ORDERED. 
~ 

This _/ day of March, 2000. 

TERRENCE W. BOYLE 
Chief United States District J udge 
RICHARD L. VOORHEES 

_ United rates District Judge 

By: SY AAIANLS lW : 
TERRENCE W. BOYLE 
CHIEF UNITED STATES DISTRICT JUDGE 

  

    

-os; in Da ae and cemect ‘ goo 

CIiGif © ie trey ~re: 

of the cri inal 
ot David W. Daniel, Clerk 

United States District Court 
Eastem District of North Carolina 

LE 7 VA pr 
* “Deputy Clerk 
  

30 

 



  

Mar 07.00 04:57p CHIEF JUDGE BOYLE 

  

IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

EASTERN DIVISION 

No. 4:96-CV-104-BO(3) 

MARTIN CROMARTETE, ef al, 

Plaintiffs, 

V. 

CONCURRENCE AND DISSENT 
  JAMES B. HUNT, JR,, in his official 

capacity as Governor the State of North 
Carolina, et al, ; 

Defendants. 

N
f
 

N
f
 

N
e
 

a
 

a
 
e
S
 

N
e
 

a
 

  

THORNBURG, District Judge, sitting by designation as Circuit Judge, concurring in part and dissenting in part: 

I join the majority in concluding that the First Congressional district is constitutionally 

drawn, but respectfully dissent from the reasoning of the majority in reaching that conclusion, I 

dissent from the majority opinion finding the Twelfth Congressional district to be an 

unconatitutions] racial gerrymander, I also write to address the issue of Ronald Linville’s right 

to remain a party plaintiff in this action. 

I. BACKGROUND 
  

In early 1997, the North Carolina General Assembly, for the third time in the decade, 

undertook the responsibility of redrawing the boundaries of North Carolina’s congressional 

districts." Operating under a court imposed deadline of April 1997 to redraw congressional 

  

The General Assembly redrew the districts for the fourth time in 1998 pursuant to this Court’s order, and now will be required to do so for the fifth time in early 2000. 

1 

 



  

Mar 07 00 04:57p CHIEF JUDGE BOYLE 

  

district boundaries, the politically divided General Assembly faced the task of quickly reaching a 

consensus on the divisive and inherently political issues involved. In addition to the traditional 

constituency concerns, the pull of party loyalty, incumbency issues, special interests, and turf 

protection, the General Assembly was forced to contend with a host of outside forces seeking to 

influence the process. Looming over the ususal morass of political decision-making was the 

federal court system, a Justice Department which from ast experience was willing to withhold 

preclearance under Section S of the Voting Rights Act, 42 U.S.C. § 1973c, and the ever present 

threat of litigation under Section 2 of the same Act. In addition, able private litigants on both 

sides of the issue stood ready to sue the State of North Carolina in the event that racial motives 

controlled the process, or in the event that the process was not racially fair. From this cauldron 

"of conflicting agendas and influences, the majority concludes that the predominant motivating 

factor of the 170 legislators in the General Assembly as they drew the redistricting plans for the 

First and Twelfth Districts was race. This is a particularly disturbing conclusion under the 

history, the facts, and the law of this case. 

That the General Assembly was not completely paralyzed by the demanding task it faced 

is a testament to the efforts of the legislators themselves, and particularly to the committee 

chairmen who crafted a plan that would pass both houses. Central to the General Assembly’s | 

motivation was the desire not to forfeit the responsibility of drawing constinitional districts to 

the federal courts, as had happened in Georgia, Texas, and Illinois. To suggest that the General 

Asserabiy could navigate these treacherous waters without being aware of the issue of race 

would be absurd because race loomed as the reason why the General Assembly had to redraw 

districts in the first place. But, the 1992 Plan is not the plan being considered by this Court. The 

conclusion that racial motivations impermissibly predominated, in a process where 

2 

 



Mar 07 OQ 04:57p hE BOYLE 

consciousness of race is not prohibited, fails to evaluate Plaintiffs’ burden of proof and 

insufficiently credits the plain and direct testimony of the two state legislators who were the 

driving force behind the 1997 congressional redistricting plan. 

11. JUDICIAL DEFERENCE 
  

The Constitution leaves with the States primary responsibility for apportionment of their 

federal congressional districts. U.S. Constitution, Article I, § 2, as amended by Amendment 

XIV § 2. “We say once again what has been said on many occasions: reapportionment is 

primarily the duty and responsibility of the State through its legislature or other body, rather than 

of a federal court.” Chapman v. Meier,420 US. 1, 27 (1975) (citing Revkeldys, Sims, 377 U.S. 

533, 586 (1964)) (other citations omitted). In the matter of redistricling, courts owe substantial 

deference to the legislature, which is fulfilling “the most vital of local functions” and is entrusted 

with the “discretion to exercise the political judgment necessary to balance competing interests.” 

Miller v. Johnson, 515 U.S. 900, 915 (1995). The Court must presume the legislature acted in 

good faith absent a sufficient showing to the contrary. Id. Consequently, this Court must grant 

North Carolina’s General Assembly substantial deference concerning its decisions related to the 

1997 redistricting plan. In deciding this case we should avoid the temptation to legislate for the 

General Assembly. Id. Under the facts of this case and the Supreme Court's decisions, judicial 

activism is neither necessary nor desirable. The majority would mask its unwarranted intrusion 

into the North Carolina legislative process by correctly observing the duty of a federal court to 

  

" In dealing with an equal protection lawsuit involving mixed motives in the drawing of congressional districts, “strict scrutiny does not apply merely because redistricting is performed with consciousness of race.” Bush v, Vera, 517 U.S. 952, 958 (citing Shaw v. Reno, 509 U.S. 630, 646 (1993) (Shaw I)). 

3  



Mar 07 00 04:58p - BOYLE 

“uphold the Constitution and laws of the United States.” Majority Opinion, at 18-19, n.7. They 
ignore, however, Judge Johnson's qualifying words: “[It is] when governmental institutions fail 

to make . . . judgments and decisions in a manner which comports with the constitution [that] 

federal courts have a duty to remedy the violation.” Id. Thus, while espousing judicial restraint, 
the majority will again declare the Twellth District unconstitutional and return the districting 
plan to the General Assembly for correction. This approach ignores the principles of federalism 

which require federal courts to exercise deference and restraint in altering the state redistricting 
decision in the first place. 

HI. STANDARD OF REVIEW 
    

Strict scrutiny should not be applied to the decision of North Carolina’s General 

Assembly merely because redistricting was performed with consciousness of race. See n.1, 

supra. As previously observed, the Voting Rights Act dictates that race may not be ignored. 

See e.g., Johnson v. Grandy, 512 U.S. 997 (1994); Holder v. Hall, 512 U.S. 874 (1994); 

Voinovich v. Quilter, 507 U.S. 146 (1993). For strict scrutiny to apply, the burden is on the 

Plaintiffs to show that “other, legitimate districting principles were ‘subordinated’ to race.” ie. 
that race was “the predominant factor motivating the legislature’s [redistricting] decision.” 

Bush, 517 U.S. at 959 (citing Miller, 515 U.S. at 916) (emphasis added). Plaintiffs may meet 

this burden through either “circumstantial evidence of a district’s shape and demographics” or 

through “more direct evidence going to legislative purpose.” Miller, 515 U.S. at 916, In Miller, 
the Supreme Court recognized certain factors as legitimate districting principles, “including, but 

not limited to compactness, contiguity, and respect for political subdivisions or communities 

defined by actual shared interests.” 74 Incumbency protection, at least in the limited form of 

4  



Mar 07 00 04:58p EY a BOYLE 

“avoiding contests between incumbent[s],” has also been recognized as a legitimate Sorte goal. 

Bush, at 964 (citations omitted). Likewise, the Supreme Court has repeatedly held that states 

“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 is conscious of that fact.” Hunt 

v. Cromartie, 526 U.S. 541, — 1198. Ct, 1548, 1551 (1999) (emphasis added). 

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. 

Id. Only where race predominates over legitimate districting principles will strict scrutiny apply 

to a State’s redistricting decision. 

The burden of proving that racial motives predominated over legitimate districting 

principles is not easily met. This difficulty is due in part to the inherent nature of any legislative 

decision where numerous motives and influences are at work. Concurring in the Miller decision, 

Justice O'Connor further clarified the rigorous nature of the Plaintiffs’ burden: 

I understand the threshold standard the Court adopts . . . to be a demanding one. To invoke strict scrutiny, a plaintiff must show that the State has relied on race in substantial disregard of customary and traditional districting practices. . . . [A]pplication of the Court's standard helps achieve Shaws basic objective of making extreme instances of gerrymandering subject to meaningful judicial review. 

Miller, 515 U.S. at 928-29 (cmphasis added). See also, Quilter v, Voinovich, 981 F., Supp. 

1032, 1044 (N.D. Ohio 1997) (“We therefore follow Justice O’Connor’s lead in applying a 

demanding threshold that allows states some degree of latitude to consider race in drawing 

districts.”), aff’d, 523 U.S. 1043 (1998). As a result of this high threshold, a State which does 

no more than take race into consideration in the redistricting process will not be subjected to 

5  



    

Mar 07 00 04:58p we BOYLE a 

strict scrutiny. Bush, 517 U.S. at 958. Even a Stale’s decision to intentionally create a 

minority-majority district will not necessarily be subject to strict scrutiny. Id. | 

In applying this high threshold standard to the case at hand, it is this Court's 

responsibility to closely examine all of the evidence to determine whether by a preponderance of 

the evidence the North Carolina General Assembly substantially disregarded legitimate 

districting principles, including Intehiency protection and political motivations, and 

subordinated those principles to race in the districting process. Only then can strict scrutiny be 

applied to the decision of the state legislature. Furthermore, each challenged district must be 

evaluated separately to determine whether strict scrutiny will apply to that district. In situations 

where “it is clear that race was not the only factor that motivated the legislature to draw irregular 

district lines,” each challenged district must be scrutinized individually to determine whether the 

legislature relied on race in substantial disregard of legitimate districting principles. Bush, 517 

U.S. at 965. The legislature's motivation as to one district cannot be transferred to another, 

IV. DISCUSSION 
  

Initially, I note that the 1997 plan must be addressed based on its own merit, not on any 

resemblance to the 1992 Plan. The majority opinion appears to have recognized this rule of law 

in noting that the Court’s role is limited tq determining “whether the proffered remedial plan is 

legally unacceptable because it violates anew constitutional or statutory voting rights—that is, 

whether it fails to meet the same standards applicable to an original challenge of a legislative 

plan in place.” McGhee v. Granville Couns, N.C., 860 F.2d 110, 115 (4* Cir. 1988) (citing 
Upham v. Seamon, 456 U.S. 37, 42 (1982)). Nevertheless, the majority makes reference to the 

“unconstitutional” 1992 Plan in criticizing both the First and Twelfth Districts under the 1997 

6 

 



  

Mar 07 00 04:58p CHIEF ® BOYLE 

  

Plan. This criticism essentially mirrors the “footprint” argument advanced by Plaintiffs, and 

therefore is equally flawed. 

"Plaintiffs contend that any district which is based on the “footprint” of a prior 

unconstitutional district is inherently invalid. This suggests that the legislature must begin with 

a completely clean slate in order to wipe away the vestiges of prior unconstitutional districts. 

Thus, the North Carolina General Assembly could not use the unconstitutional 1992 Plan as the 

beginning point for creating the 1997 Plan. However, given that the task of the General 

Assembly in 1997 was to correct the defects of the 1992 plan, it should be permissible to use the 

1992 Plan as the starting point for creating a constitutional plan. Further, it would be illogical to 

argue that the unconstitutional aspects of a decision made by legislators in 1992 somehow taints 

the actions of a completely different legislative body in 1997. Most importantly, requiring a 

legislature to start completely from scratch makes their task nearly impossible because 

congressional incumbents and state legislators will invariably demand the preservation of as 

much of the geographic core of districts as possible, a political reality explained in testimony at 

the trial." Indeed, the undersigned can think of no reason why a legislature may not simply 

address the offensive aspects of an unconstitutional district, cure those defects, and thereby 

create a constitutional district. 

  

' Indeed, Senator Roy Cooper, chairman of the Senate Redistricting Committee testified at trial that he did not think the General Assembly could have drawn a plan from square one which would have passed because state legislators and congressional incumbents both wanted districts which preserved as much of their geographic cores as possible. Trial Transcript, at 350, lines 12-25. Likewise, Plaintiffs’ own expert agreed that legislatures generally try to avoid disrupting the relationship between incumbents and their voters, testifying that “whatever districts [incumbents] end up with, they tend to, in the end, like and wish to preserve as long as they can. That’s been an observation over decades and decades of study of redistricting,” Id., at 279-80. 

 



Mar 07 00 04:58p oh “vi BOYLE 

A. The Twelfth Congressional District 

To show that racial motives piloninsd iy the drawing of the Twelfth District, 
Plaintiffs had the burden of proving by a preponderance of the evidence that the legislature 
substantially disregarded legitimate districting criteria and subordinated those criteria to the 
Sirope? racial motivation, A thorough treatment of Plaintiffs’ burden is noticeably absent from 
the majority opinion, but this burden must not be overlooked or disregarded. Plaintiffs quite 
simply have failed to carry their burden through either direct or circumstantial evidence, !* 
Defendants, on the other hand, have produced ample and convincing evidence which 
demonstrates that political concerns such as existing constituents, incumbency, voter 
performance, commonality of interests, and contiguity, not racial motivations, dominated the 
process surrounding the creation and adoption of the 1997 redistricting plan. 

Finding that race was the predominant motivation and applying strict scrutiny to the 
Twelfth District fails to evaluate the redistricting process within the context of the legislative 
environment where such decisions occur, 

Passing a redistricting plan in a limited time period, under a federal court order, and in a 
politically divided General Assembly seemed like an impossible task early in 1997. Trial 
Transcript, at 475, lines 5-12. In order to succeed, the chairmen of the House and Senate 
Redistricting Committees reco gnized the necessity of creating a plan which would ooh: the 
Support of both parties and both houses. Id., at 335, lines 4-10; at 338, lines 19-22. 

    

Y Plaintiffs conducted their ¢ ed to a presumption that race predominated and merel overcome this presumption. However, ifs are enti lon, not by their past success in this area or mmary judgment stage. The burden of proof lies squarely on the shoulders of Plaintiffs, and they have failed to adequately carry that burden. 

8  



  

Mar 07 00 04:58p CHIEF JUDGE BOYLE 

  

partisan split amongst North Carolina’s congressional delegation. Id, at 475, lines 13-23; at 
338, lines 1-7. Because both the First and Twelfth Districts had Democrat incumbents, and 
maintaining the 6-6 split was viewed as imperative, preserving a strong Democratic Twelfth 
District which protected incumbent Mel Watts’ political Sane vas ehsclinely necessary. 
Affidavit of Roy A. Cooper, II, filed March 2 1998, at §[ 10. In creating such a district, 
common sense as well as political experience dictated ascertaining the strongest voter- 
performing Democratic precincts in the urban Piedmont Crescent. That many of those strong 
Democratic performing precincts were majority African-American, and that the General 
Assembly leaders were aware of that fact, is not a constitutional violation.! Those precincts 
were included in the Twelfth District based primarily upon their Democratic performance, not 
their racial makeup.” North Carolina’s legislative leaders have opealy admitted to being aware 
of the race issue, to being conscious of the racial percentages of the districts they drew, and to 
recognizing that their redistricting plan could potentially be subjected to federal scrutiny yet 
again as a challenged racial gerrymander, 3 Yet, these were merely some of the numerous 
  

'* All parties agree that African-American voters in North Caroling are extremely loyal Democratic voters, with over 95% of African-American voters in North Carolina registered and voting accordingly. Trial Transcript, at 388, lines 2-7, 

" The majority points to the Cooper-Cohen e-mail as evidence of a “methodology for segregating votes by race.” Majority Opinion, at 23. The majority also suggests that sinister inferences arise from Senator Cooper's statements on the legislature floor that the Shaw test for 

9 

 



  

Mar 07 00 0S:00p CHIEF JUDGE BOYLE 

  

was at least as plansiole a motivating factor as race in the drawing of the Twelfth District. Tria] 
. Transcript, at 486-88. In other words, the statistical evidence before the Court does not support 

the proposition that race predominated as a motivation. Yet, it is this same equivocal statistical 
evidence which forms the backbone of the Plaintiffs’ case. 

In an attempt to rebut this argument, Plaintiffs relied primarily on the testimony of their 
expert witness, Dr. Ronald Weber.” Dr. Weber also plays a prominent role in the majority 
  

predominated. And they certainly do not amount to the “smoking gun” status which Plaintiffs would have the Court believe, 

" Plaintiffs also provided the testimony of witnesses Who were, at best, peripheral players in the General Assembly's decision-making proccss. Three of those witnesses were not members of the General Assembly when the plan in question was adopted and indicated ng direct involvement with that process. Trial Transcript, at 89, lines 2-7 (R.O. Everette); at 104, 105, lines 1-18 (J.H. Froelich, Jr.); at 113, lines 12-19 (Neil Williams). Of the three witnesses who were members of the General Assembly during the relevant (ime period, none claimed to have had a significant involvement with or specific knowledge of the decision-making process. Nevertheless, each confidently expressed the opinion that racial motivations did predominate as 

10 

 



  

~ Mar 07 00 0S:00p CHIEF JUDGE BOYLE 

  

opinion. Dr. Weber argued that the North Carolina legislature failed to include numerous 
precincts in the Twelfth District which had high levels of Democratic support, but which were 
not majority African-American. Consequently, he contended the legislature must have been 
more focused on race than on creating a Democratic district. Dr. Weber also criticized Dr, 
Peterson's findings as “unreliable” and not relevant, Trial Transcript, at 232, lines 1-8. 
However, it is the testimony of Dr. Weber, who admitted his belief that legislative bodies should 
not be trusted to draw district lines, which the undersigned finds lacking in credibility. Id, at 
281, lines 3-14; United States v, Turner, 198 F.3d 425, 429 n.2 (4™ Cir. 1999) (citing Davis v. 
Alaska, 415 U.S. 308, 316 (1974) (“The partiality of a witness is always relevant as 
discrediting the witness and affecting the weight of this testimony.”)). This stated bias is 
evident throughout his testimony and undermines both his criticism of Dr. Peterson as well as his 
assertion that political explanations fai] to explain the composition of the Twelfth District. His 
“hired gun” mentality and obvious prejudice against legislatures fulfilling “the most vital of 

local functions,” attest to the unreliability of his conclusions. Miller, 515 U.S. at 915. 

Overlooking Dr. Weber's lack of credibility, his arguments still do little to advance 
Plaintiffs’ position. First, there is no dispute that every one of the majority African-American 
precincts included in the Twelfth District are among the highest, if not the highest, Democratic 
performing districts in that geographic region. Thus, although Dr. Weber pointed to other 
precincts which he suggests are highly Democratic in performance, this does not explain why 

  

20 As the majority notes, Dr. Weber has testified in over 30 racial gerrymandering cases. Exhibit 49. In the dissent in Johnson v. Mortham, 926 F. Supp 1460 (N.D. Fla. 1996), Circuit Judge Hatchett criticized Dr. Weber's testimony as lacking credibility because Weber had previously testified in support of the “Margolis plan” in 1992, but now purported to testify against the subscquent plan which he admitted was practically identical. Id, at 1505 n.11, 1513. 

I1 

 



    

Mar 07 00 0S5:01p CHIEF JUDGE BOYLE 

any of the highest performing Democratic precincts should be excluded from the Twelfth 
District. Furthermore, Dr, Weber's entire line of criticism ignored geographic realities and one- 

. person, one-vote principles. Weber admitted that the precincts which he argued are strongly 
Democratic were chosen without considering where they were located.’ Trial Transcript, at 
286-88. Further, under One-person, one-vote principles, Weber's precincts could not all possibly 
be included in the Twelfth District without removing a corresponding number of voters from 
direniins in the Gls? 1d. Finally, Weber's analysis is flawed due to the incorrect 
assumptions under which he conducted his study. Weber admitted he considered no hypothesis 
other than race as the legislature’s predominant motive, and he specifically failed to inquire 
about real world political or partisan factors which might have influenced the process. Id., at 
258, lines 2-11. One reason for the focus on race was Dr. Weber's incorrect belief that the 
person drawing North Carolina’s districts could only see racial data, when in fact North 
Carolina’s computer screens displayed information on political breakdowns of both voter 
registration and voter performance Id, at 261, lines 4-8. This error, his failure to account for 
    

* On Cross-examination, the Defendants presented maps which showed that few highly performing Democratic precincts actually abutted the Twelfth District. Exhibits 140-142; Trial Transcript, at 290-292; at 294, lines 20-25. Consequently, few of the strong Democratic precincts to which Dr, Weber referred could have easily been included in the Twelfth District. 
* The undersigned notes here that just because North Carolina was able to draw a more compact Twelfth District in 1998 which stil] performed for the Democrats does not mean that the 1997 Twelfth District was necessarily unconstitutional. 

PQ. Isn’tit true that you only considered race because you believed the North Carolina computer system only displayed racial breakdowns and did not display political breakdowns? 
A. Atthat time I had not seen the screens for North Carolina. I had seen the screens in Louisiana. And in Louisiana, they did not prominently display political information on the screen. 

Trial Transcript, at 259, lines 16-23. 

12 

 



Mar 07 00 0S:01p CHIEF JUDGE BOYLE 

other potential factors, the flaws in his arguments, and his ingrained personal bias combine to 
undermine his subsequent conclusions and criticisms. In the end, the undersigned sees no reason 
to give any weight to the opinions of Dr. Ronald Weber and fails to understand the majority 
reliance on such a thin reed. 

Another significant shortcoming of the majority’s analysis is the failure to adequately 
credit the testimony of the two men who werc the driving force behind the creation of the 1997 
Redistricting Plan. Senator Roy Cooper, III, served as the Democrat chair of the Senate 

Redistricting Committee and Representative Edward McMahan acted as the Republican chair of 
the House Redistricting Committee. They were responsible for developing a redistricting plan 
that could pass both houses and for marshaling it through the legislative process. They indicated 
that the 1997 plan and the formulation, of its boundaries came primarily from their personal 
negotiations with each other. Id, at 463, lines 3-5, Both testified that correcting the 

constitutional defects of the previous plan and passage of the bill by ensuring a 6-6 partisan split 
were the two central goals in developing the 1997 plan. Trial Transcript, at 334; at 475, lines 
13-25. Indeed, each testified under oath that politics, not race, was the predominant motivating 

factor in the Plan’s development, with Senator Cooper going so far as to call partisan faimess an 
“overriding factor.” Id., at 337, lines 7-10. This Court's finding that racial motives 

predominated in the legislative process directly contradicts their express testimony. 

In contrast to Plaintiffs, the Defendants adequately supported their position with 
convincing evidence, even though they had no burden of proof in this trial. Senator Cooper and 
Representative McMahan detailed the motivations behind their actions, at times expressing 

regret for having to expose the naked political nature of their conduct. Id., at 423, lines 4-12. In 
addition to incumbency protection, other Bootie considered by the General Assembly included 

13  



  

Mar 07 00 05:01p CHIEF JUDGE BOYLE 

  

increasing geographic cputhiens and reducing the number of split counties and precincts. 
at 349, lines 16-25; at 475, lines 13-25. The 1997 Twelfth District as adopted reflected the 

legislators’ focus on these legitimate districting criteria. The 1997 Twelfth District is more 
compact, splits fewer counties and precincts, and is much more pleasing to the eye than the 

previous District, Id., at 334, lines 7-1 5. The General Assembly dhorienes the District from 

191 to 102 miles, moved 60 percent of the geographic area and 30 percent of the population out : 
of the District * and eliminated the long narrow corridors and other objectionable characteristics 
which had previously been criticized. Id, at 349, lines 16-23. Most importantly, the Twelfth 
District is not a minority-majority disirlet by any traditional measurement, numbering 46.67 
percent African-American in total population and only 43.36 percent African-American in 
voting age population. Final Pre-Trial Order, at q 26. 

Furthermore, the General Assembly had before it abundant evidence of a clear 

community of interest in the Twelfth District? The three urban areas located along the 
Interstate-85 industrial corridor, known as the Piedmont Crescent, share common characteristics 

and face similar problems. North Carolina’s Section 5 Submission, 1997 Congressional 
Redistricting Plan, 97C-28F-3B, Tab 10. One statement submitted at a public hearing 

described the Twelfth District as “uniquely urban in its dominant issues,” some of which were 

described as affordable housing, alternative transportation, air and water quality, and various 

  

* Final Pre-Trial Order, filed November 29, 1999, at §’s 36-37. This included moving 4 out of 10 counties into other districts. Jd., at 30. 

% Substantial evidence from both private citizens and politicians concerning the benefits of having a Piedmont Crescent district was submitted at the public hearings and thercfore was before the legislature. North Carolina’s Section 5 Submission, 1997 Congressional Redistricting Plan, Volume IV, | 

14 

 



  

Mar 07 00 0S:02p CHIEF JUDGE BOYLE 

other complex issues found in an increasingly populated and wban area. Id., at Tab 11, at q 8- 
9. As a consequence, the urban voters in the Twelfth District as prescatly configured have much 
more in common with each other than with rural voters living on the distant outskirts of those 
urban cities. Jd. Senator Cooper felt that maintaining this community of interest was one of 
the legislature’s motivating factors, and indeed, the 1997 Twelfth District as drawn reflected and 
protected the clear community of interest in the Piedmont Crescent. Affidavit of Senator Roy 

A. Cooper II, at § 9. 

The evidence presented by Defendants demonstrates that politics predominated in the 
drawing of the Twelfth District in 1997. Plaintiffs evidence does nothing more than address the 
admitted fact that legislative leaders were aware of the race issue, or perhaps that the Twelfth 
District could have possibly been drawn in a different way to accomplish the legislature’s stated 

political goals. Such evidence does not meet Plaintiffs’ heavy burden of showing by a 
preponderance of the evidence that racial motives predominated in substantial disregard of 

legitimate districting criteria. 

In some circumstances, incumbency protection might explain as well as, or better thar, race a State’s decision to depart from other traditional districting principles, such as compactness, in the drawing of bizarre district lines. And the fact that , “[a]s it happens, . . . many of the voters being fought over [by the neighboring Democratic incumbents] were African-American,” would not, in and of itself, convert a political gerrymander into a racial gerrymander, no matter how conscious redistricters were of the correlation between race and party affiliation. See Shaw I, 509 U.S., at 646, 113 S.Ct., at 2826. If district lines merely correlate with race because they are drawn on the basis of political affiliation, which 
  

* The majority observes that Charlotte, Winston-Salem, and Greensboro have never before been joined in a congressional district prior to 1992. However, it is irrelevant that the 

is 

  

«22 

 



  

Mar 07 00 0S5:02p CHIEF JUDGE BOYLE 

  

correlates with race, there is no racial classification to justify, just as racial disproportions in the level of prosecutions for a particular crime may be unobjectionable if they merely reflect racial disproportions in the commission of that crime. : 

If the State’s goal is otherwise constitutional political gerrymandering, it is free to use the kind of political data on which Justice Stevens focuses — precinct general election voting patterns, precinct primary voting patterns, and legislators’ experience — to achieve that goal regardless of its awareness of its racial implications and regardless of the fact that it does so in the context of a majority- minority district. To the extent that the District Court suggested to the contrary, it erred. 

Bush, 517 U.S. at 967-68 (citations omitted). Only to the extent race is used as a proxy for 
political characteristics will strict scrutiny be applied to otherwise permissiblc political 

gerrymandering. Id. Therefore, I conclude that strict scrutiny should not be applied to the 

Twelfth District. 

B. The First Congressional District 

The First District in the 1997 Plan is 50.27 percent African-American in total population 
and 46.54 percent African-American in voting 1% population. Final Pre-Trial Order, at 27, 

Thus, the First District is the only majority-minority district in North Carolina in terms of total 
population, and no congressional district in this state is majority-minority in terms of voting age 
population. However, this fact does not change the applicable legal standard. A State’s decision 
to intentionally create a majority-minority district is not necessarily subject to strict scrutiny. 
Bush, 517 U.S. at 958. Plaintiffs still have the burden of showing by a preponderance of the 
evidence that race was the predominant factor motivating the legislature's decision and that 
legitimate districting criteria were subordinated to race. Miller, 515 U.S. at 916. 

Senator Cooper and Representative McMahan testified that they were motivated to create 

16 

 



  

Mar 07 OQ 05:03p H yuGE BOY. 

  

a majority-minority district in the Northeastern area of the state to avoid concerns under the 

Voting Rights Act. Trial Transzript, at 365, lines 10-25; at 464, lines 5-8. However, their 

motivation was predicated on the knowledge that they could create a compact, contiguous 

district in Northeastern Nerth Carolina which focused on an undeniable community of interests. 

[Als we went through the process it became clear that we could draw a nice, 
compact district that made geographic sense, that put together communities of 
interest, that was a strongly leaning Democratic district, that was sj ghtly 
majority-minority population. : % 3 

Id., at 359, lines 18-23. 

District 1 is a largely agrarian rural district. It has a lot of medium sized towns. I 
tink uniquely [in] Eastern North Carolina you have the 30 to 50,000 population 
towns with largely rural areas. A lot of these ccunties are largely poorer counties, °° 
they are very high up cn our economic tiers of depressed counties. So I think that 
there’s a great community of interest in Northeastern North Carolina with those 
counties that are up there. 

Id., at 368, lines 8-15. 

Likewise, Senator Cooper and Representative McMahan were concerned with creating a 

geographically compact district. McMahan in particular focused almost exclusively on 

geographical considerations and “making the district look good.” Id., at 467, lines 22-25. ‘And 

indeed, the 1997 redistricting process resulted in a fairly compact and normal looking 

congressional district in Northeastern North Carolina. The perimeter and dispersion 

compactness indicators of the First District are not much jower than the mean conipactness 

indicators for North Carolina’s twelve districts. Neither number is low enough to raise a “red 

  

» The First District has a dispersion compactness indicator of 0.317 and a perimeter compactness indicator of 0.107. Gerald R. Webster, “An Evaluation of N orth Carolina’s 1998 Congressional Districts,” Table 3; Defendants’ Exhibits 421-22. The mean numbers for North Carolina’s twelve congressional districts are .354 and .192 respectively. Id. 

17 

 



  

Mar 07 00 0S:03p CHIEF JUDGE BQYLE 

      

flag” according to the criteria set out in the Pildes and Niemi study.” Furthermore, as the 

majority correctly observes, where the borders of the First District have significant irregularities, 

those irregularities are attributable to political motivations, namely the desire to protect 

incumbents and avoid putting two congressional incumbents in a single district. Majority 

Opinion, at 29. Therefore, although it was the intent of Senator Cooper and Representative 

McMahan to create a minority-majority district in Northeastern North Carolina, this decision 

was based on legitimate districting principles. Quite simply, once they knew they could create a 

compact, contiguous district which addressed the community of interests in Northeastern North 

Carolina, they felt they should do so. Trial Transcript, at 365, lines 17-24. 

  

The majority reaches a different conclusion, however, and applies strict scrutiny to the 

First District.” The majority characterizes the racial composition of tke First District as “a 

mandale, a necessity,” and therefore concludes that racial motives predominated. Majority 

Opinion, at 26. In support of this conclusion, the majority cites the Cooper-Cohen e-mail which 

refers to the desire to “boost the minority percentage in the first district” to create an “improved” 

district. Also, the majority points to Senator Cooper’s acknowledgment at trial that he felt the 

need to have over 50 percent minority representation in the First District. Based upon these 

  

* That study suggested that a “red flag”should be raised when a perimeter compactness indicator is below .05 and a dispersion compactness indicator is below .15. Webster, at 13 (citing Pieldes & Niemi, Expressive Harms, “Bizarre Districts,” and Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno, 92 Mich.L.Rev. 483, 571- S573, Table 6 (1993)); Plaintiffs’ Exhibit 217. 

® After applying a strict scrutiny standard, the majority concludes that the First District is not an unconstitutional racial gerrymander, finding a compelling state interest under § 2 of the Voting Rights Act and narrowly tailored means. Although I strongly feel that the evidence before the Court does not warrant the application of strict scrutiny, I agree with the majority’s analysis concerning the application of the Gingles factors to the First District. 

18 

<5 

 



Mar 07 00 05:03p CHIEF JUDGE BOYLE S—— 

statements, the majority concludes that the General Assembly “continued to use race as the 

predominant factor in creating the majority-minority First District, and thus strict scrutiny must 
apply.™ 7d, at 27. 

However, these statements merely highlight thc admitted and permissible reality: the 
North Carolina General Assembly intentionally created a majority-minority district (in terms of 
population only) in Northeastern North Carolina. But despite the intent to create a majority- 
minority district, the evidence does not show that racial motives predominated in substantial 

- disregard of legitimate criteria like compactness, contiguity, and communities of interest. Trial 
Transcript, at 365, lines 10-25. On the contrary, the direct testimony shows that the legislature 
addressed traditional, legitimate districting criteria and determined that a majority-minority 
district in Northeastern North Carolina Was appropriate. Indeed, the criteria of communities of 
interest and geographical compactness were uppermost in the legislators’ minds. Considering 
the evidence before the Court in light of the deference due the state legislative decision, my 
understanding of the applicable legal standard forces me to conclude that race did not 

impermissibly predominate in the districting process and thercfore strict scrutiny should not 
apply to the First Congressional District. 

  

* The majority purports to find that “under the 1992 plan, the First District was not narrowly tailored and therefore that district was in violation of the Constitution.” Majority Opinion, at 26. However, this Court has no authority to find that the First District under the 1992 Plan was unconstitutional. Due to a standing issue, the Supreme Court in Shaw II did not make a ruling on that district, Shaw v. Hunt, 517 U.S. 899, 904 (1996). Neither this Court nor any court has made a legal ruling on the constitutionality of the 1992 First District. Cromartie v. Hunt, 4:96-CV-104-BO(3), Order filed J une 21, 1998, at 2. The 1992 Plan no longer exists, is not currently being challenged by Plaintiffs in this case, and simply is not an issue before this Court. To the extent the majority’s application of the strict scrutiny is predicated on a comparison to the 1992 First District, such reliance is patently wrong. See discussion supra, at 6-7. 
: 

19  



  

Mar 07 00 05:04p CHIEF JUDGE BOYLE 

      

V. REMEDY 

1 also respectfully dissent from the decision to require the General Assembly once again 

to redraw the Twelfth District. 

The filing period for Congressional candidates began on January 3, 2000, and ended on 

February 7, 2000. N.C. Gen. Stat, § 163-106(c). The General Assembly is not scheduled to 

reconvene until May 2000, the same month that North Carolina will conduct its primary 

elections. Forcing the General Assembly 0 call a special session to address this Court’s ruling 

creates a plethora of problems. Ongoing election preparation will be interrupted as 

congressional candidates will be forced to refile and redesign their election strategies. Citizen 

confidence in the electoral process will be undermined by the repeated reconfiguration of 

clection districts. While cost is not a faite to be considered in tailoring a constitutional remedy, 

it will be a concer to citizens hoping for closure in this long-running litigation. Also of no 

small concern is the time necessary for § S pre-clearance of changes from the ‘97 or ‘98 plas, 

the probability of litigation under § 2 of the Voting Rights Act in the event of major changes in 
district lines, and the virtua] certainty of another challenge by Plaintiffs if the new lincs do not 
meet their satisfaction. To suggest that new districts, hastily drawn pursuant to this Court’s 

Order, could have a salutary effect on the 2001 decennial redistricting is purely speculative in 
view of the major change anticipated in the North Carolina population since 1990. In short, 

requiring the North Carolina General Assembly h redraw congressions] district lines for the year 
2000 election, based as they must be on 1990 census figures, is unjustified, unnecessary and, 

quite probably, an abuse of discretion. 

There is Supreme Court precedent for this Court to consider “the proximity of a 

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JgU™0so7TU4p RIEF JUDGE BOYLE 

forthcoming election and the mechanics and complexities of state election laws” in fashioning 

appropriate remedics for constitutional violations in redistricting cases. Reynolds, 377 U.S. at 

585. There is also Supreme Court precedent for allowing an election to proceed under an 

unconstitutional plan where an election is impending. Ely v. Klahr, 403 U.S. 108 (1971). 

|Als we have often noted, districting and apportionment are legislative tasks in the first instance, and the court did not err in giving the legislature a reasonable time to act based on the 1970 census figures which the court thought would be available in the summer of 197]. . _ [The District Court should [then] make very sure that the 1972 elections are held under a constitutionally adequate [redistricting] plan. : 

Id, at 114-15 (footnote omitted). 

[Olnce a State’s legislative apportionment scheme has been found to be ‘unconstitutional, it would be the unusual case in which a court would be justified in not taking appropriate action to insure that no further elections are conducted under the invalid plan. However, under certain circumstances, such as where an impending election is imminent and a S tate’s election machinery is already in progress, equitable considerations might justify a court in withholding the granting of immediately effective relief in a legislative apportionment case, even though the existing apportionment scheme was found invalid. In awarding or withholding immediate relief, a court is entitled to and should consider the proximity of a forthcoming election and the mechanics and complexities of state election laws, and should act and rely upon general equitable principles. With respect to the timing of relief, a court can reasonably endeavor to avoid a disruption of the election process which might result from requiring precipitate changes that could make unreasonable or embarrassing demands on a State in adjusting to the requirements of the court’s decree. 

Reynolds, supra; Order, supra, at 14-15 (Ervin, J. dissenting). Further, there is precedent in 

North Carolina for conducting elections under an unconstitutional plan in order to avoid undue 

disruption of the electoral process.” Permitting the legislature to expend its encrgy, best 
  

"In Shaw v. Hunt, 517 US. 899 (1996) (Shaw II), the Supreme Court found that the Twelfth District, as drawn under the 1992 redistricting plan, was unconstitutional. On remand, the three-judge panel determined that the 1996 general elections would continue under the unconstitutional plan, 

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judgment, and resources on planning for and developing a constitutional plan for the Twelfth 

District based i” the Year 2000 population data would accord with Supreme Court precedent, 

accommodate the “equitable considerations” recognized in Reynolds, and allow the filings, 
campaigns and elections for 2000 to proceed on schedule. This Court should keep in mind that 
whatever the decision is in this case, simple arithmetic and Constitutional mandate dictate the 
redrawing of at least some new congressional district lines for the year 2002 elections based on 

the year 2000 census figures. 

VI. STANDING 

Defendants contest Plaintiff Ronald Linville’s standing to participate in this case. As 
Plaintiffs stipulate, Linville is not a current resident of the First or Twelfth Congressional 
Districts, the two districts being challenged as racial gerrymanders.” Final Pre-Trial Order, 
filed November 29 1999, at §’s 20-23. Although he does not claim to be unhappy with his own 
district, Linville gives numerous ob jections to the Twelfth District and concludes that it is drawn 

  

[{In exercise of this Court's equitable power to withhold the grant of immediately effective relief for found constitutional violations in legislative districting plans in order {0 avoid undue disruption of ongoing state electoral processes, the 1996 primary elections already held for congressional offices are hereby validated and the 1996 general election for those offices may proceed as scheduled under state law (0 elect members of congress under the existing districting plan. 

Order, filed July 30, 1996 in Shaw v. Hunt, 92-202-CIV-5-BR at 2-3 (citing Reynolds, 377 U.S. at 585). 

2 Although Linville was a resident of the Twelfth District under the 1992 Plan, under the 1997 Plan he is a resident and registered voter of the adjoining Fifth District. His precinct is 95.94 percent white. Id. 

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% Nd 

along racial lines. Linville Draft Deposition, at 17, 20, 23, 25-26, 34, 56, 57, 65, 75-77. 

Linville further complains about being separated from his father politically, being implicitly told 

he was “too white to belong in the district right next to [him],” and being “deliberately 

segregated immediately outside of a racially drawn district whose boundary was adjacent to his 

own precinct.” Plaintiffs’ Response to Defendants’ Motion for Summary Judgment, at 22, 

n.11. Plaintiffs produced no further evidence which suggests that Linville has been personally 

injured by a racial classification, despite assurances at the beginning of the trial that they would 

do so. Trial Transcript, at 5, lines 10-12. 

Federal courts have an independent obligation to examine their own jurisdiction; standing 

“is perhaps the most important of [the jurisdictional] doctrines.” United States v. Hays, 515 U.S. 

737,742 (1995) (quoting FW/PBS, Inc. v. Dallas, 493 U.S. 215, 230-31 (1990)). The party 

who seeks the exercise of jurisdiction has the burden of clearly alleging facts which demonstrate 

that he or she is a proper party to invoke judicial resolution of the dispute. Hays, 515 U.S. at 

743. Even where a case has proceeded to final judgment after a trial, “those facts (if 

controverted) must be ‘supported adequately by the evidence adduced at trial’ to avoid dismissal 

on standing grounds.” Id. (citations omitted). 

In the context of redistricting cases, a citizen has standing to challenge a racial 

classification in federal court if that citizen is “able to demonstrate that he or she, personally, has 

been injured by that kind of racial classification.” Id., at 744. Because of the difficulty in 

demonstrating this individualized harm, the Supreme Court created a presumption in favor of 

standing for residents of a challenged district, Hays, 515 U.S. at 744-45; accord Miller v. 

  

Johnson, 515 U.S. 900, 910-11 (1995). However, where a plaintiff is not a resident of the 

challenged district, the plaintiff is not afforded the benefit of this presumption. 

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[Where a plaintiff does not live in such a district, he or she does not suffer those 
special harms, and any inference that. the plaintiff has personally been subjected 
to a racial classification would not be justified absent specific evidence tending to 
support that inference. Unless such evidence is present, that plaintiff would be 

asserting only a generalized grievance against governmental conduct of which he 
or she does not approve. 

  

Hays, 515 U.S. at 745 (emphasis added). The Supreme Court repeatedly has refused to 

recognize a ‘‘generalized ailaviiie against allegedly illegal governmental conduct as sufficient 

for standing to invoke the federal judicial power.” Id., at 743 (citations omitted). 

Consequently, plaintiffs who are not residents of a challenged district may sue only if they are 

able to make a specific evidentiary showing that they have been “personally classified by race.” 

Id., at 74S; Shaw II, S17 U.S. at 904; Bush, 517 U.S. at 957-58. 

By seeking to include Linville as a participant in this lawsuit, Plaintiffs ask this Court to 

grant standing to a class of plaintiffs which the Supreme Court has explicitly refused to 

recognize. Only where a non-resident plaintiff is able to make a specilic evidentiary showing of 

personal injury will that plaintiff have standing to sue in federal court. Linville’s litany of 

generalized grievances will not suffice to create standing. Because Linville is not a resident of 

the First or Twelfth Districts, and no specific evidence that he has personally been subjected to a 

racial classification is before this Court, I would dismiss Linville as a plaintiff for lack of 

standing. 

  

VII. CONCLUSION 

Lost amidst the smoking gun e-mails, the “uncontroverted” statistical information, and 

the indignant examinations of irregular district lines is Plaintiffs’ burden of proof in this case. 

The Plaintiffs must demonstrate by a preponderance of the evidence that a racial motivation 

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predominated in the legislature’s decision-making and that legitimate districting principles were 

  

subordinated to those racial motivations. The Supreme Court’s remand in this case affords no 

relief from the responsibility of posting this burden. Merely showing that race was an issue, 

that it was always considered, or that it had an influence on the ultimate outcome is not 

sufficient. 

The two men most knowledgeable about the 1997 Congressional Stidong plan 

testified before this Court that political, not racial, motivations were the predominant factor in 

the General Assembly’s Srionaiing process. Thilz direct testimony, even when confronted 

with the evidence relied on by the majority, proves that racial motivations did not predominate. 

Therefore, strict scrutiny should not be applied to the General Assembly’s 1997 decision. 

F nally, I am compelled to note that this decision forces the North Carolina General 

Assembly to create a redistricting plan based on population figures from the 1990 census, 

numbers which everyone admits are outdated. This ew plan will last only one year and will | 

then be replaced by a plan based on the 2000 census figures. When previously forced by this 

Court to redraw the Twelfth District in 1998, the General Assembly created a plan which 

garnered the approval of this Court and was pre-cleared by the Justice Department. Indeed, 

North Carolina’s current Congressional delegation was elected under that plan in the 1998 

general elections. Were the General Assembly to simply readopt the 1998 plan, the allel | 

expenditure of legislative time, effort, and resources might be minimized. Otherwise, for the 

fifth time in 10 years, North Carolina's legislature must undergo the arduous task of reaching a 

consensus on the divisive and inherently political issue of congressional redistricting.