Magner v. Gallagher Brief Amicus Curiae

    .JUL-22-38 WED 11:46 ~~ NAACP LDF DC OFC FAX NO. 2026821312 P. 02/23 

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No. 97-893 
  

In the 

Supreme Court of the United States 
October Term, 1997 
  

JAMES B. HUNT, JR., in his official capacity as 

Governor of the State of North Carolina, ef al., 

Appellants, 
V. 

MARTIN CROMARTIE, ef al., 

Appellees. 
  

On Appeal from the United States District Court 

Eastern District of North Carolina 
  

JURISDICTIONAL STATEMENT 
  

MICHAEL F. EASLEY 

North Carolina Attomey General 

Edwin M. Speas, Jr.*, Chief Deputy Attorney General 

Tiarc B. Smiley, Special Deputy Attorney General 

Melissa L. Saunders, Special Counsel to Attorney General 

North Carolina Department of Justice 

Post Office Box 629 
Raleigh, North Carolina 27602-0629 

JUL 22 ’'98 11:58 ST eer i012 PAGE .BR2 

 



  

JUL-22-98 WED 11:47 NAACP LDF DC OFC FAX NO, 2026821312 

No. 97-893 
    

  

In the 

Supreme Court of the United States 
October Term, 1997 
  

JAMES B. HUNT, JR., in his official capacity as 

Governor of the State of North Carolina, ef al. 

Appellants, 

V. 

MARTIN CROMARTIE, ef al., 

Appellees. 
  

On Appeal from the United States District Court 
Eastern District of North Carolina 
  

JURISDICTIONAL STATEMENT 
  

MICHAEL F. EASLEY 

North Carolina Attorney General 

Edwin M. Speas, Jr.*, Chief Deputy Attorney General 
Tiarc B. Smiley, Special Deputy Attormey General 

Melissa L. Saunders, Special Counsel to Attorney General 

North Carolina Department of Justice 

Post Office Box 629 
Raleigh, North Carolina 27602-0629 

Telephone: (919) 716-6900 

July 6, 1998 *Counsel of Record 
  

JULYZ22%"88 11.158 2f26821312 PRAGE.2AB!  



JUL-22-98 WED 11:47 NAACP LDF DC OFC FAX NO. 2026821312 P. 02/22 

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QUESTIONS PRESENTED 

In a racial gerrymandering case, is an inference drawn from 
the challenged district’s shape and racial demographics, 
standing alone, sufficient to support summary judgment for 
the plaintiffs on the contested issue of the predominance of 
racial motives in the district’s design, when it is directly 
contradicted by the affidavits of the legislators who drew the 
district? 

Docs a final judgment from a court of competent jurisdiction, 
which finds a state’s proposed congressional redistricting 
plan does not violate the constitutional rights of the named 
plaintiffs and authorizes the state to proceed with elections 
under it, preclude a later constitutional challenge to the same 
plan in a separate action brought by those plaintiffs and their 
privics? 

Is a state congressional district subject to strict scrutiny under 
the Equal Protection Clause simply because it is slightly 
irregular in shape and contains a higher concentration of 
minority voters than its neighbors, when it is not a majority- 
minority district, it complics with all of the race neutral 
districting criteria the state purported to be following in 
designing the plan, and there is no direct evidence that race 
was the predominant factor in its design? 

JUL 22 "98 pS] 2826821312 PAGE .QBAZ  



  
  

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LIST OF PARTIES 

JAMES B. HUNT, JR., in his official capacity as Governor of the 
State of North Carolina, DENNIS WICKER in his official capacity 
as Lieutenant Govemor of the State of North Carolina, HAROLD 
BRUBAKER in his official capacity as Speaker of the Ncrth Carol'nz 
House of Representatives, ELAINE MARSHALL in her official 
capacity as Secretary of the State of North Carolina, and LARRY 
LEAKE, S. KATHERINE BURNETTE, FAIGER BLACKWELL, 
DOROTHY PRESSER and JUNE YOUNGBLOOD in their capacity 
as the North Carolina State Board of Elections, are appellants in this 
case and were defendants below; 

MARTIN CROMARTIE, THOMAS CHANDLER MUSE. R. O. 
EVERETT, J. H. FROELICH, JAMES RONALD LINVILLE, 
SUSAN HARDAWAY, ROBERT WEAVER ard JOEL XK. 
BOURNE are appellees in this case and were plaintiffs below. 

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TABLE OF CONTENTS k 

NY 
QUESTIONS PRESENTED ov. ...... ooo via i oh ay i 

BIS OP PARTIES i. Fi ns ee bs y 
TABLEOFAUTHORWIES ............ 0h dw vi 

OPINIONS BELOW EAE AR Ry aR POE LE 

JURISDICTION Be ees de a Re fre AE) 

CONSTITUTIONAL AND STATUTORY 

PROVISIONS INVOLVED ria ee te ae ee ie Non dh aE id 

STATEMENTOFTHECASE ......0... s&s. 2 

A. THE 1997 REDISTRICTINGPROCESS. ................ 2 

BoTHEISOIPLAN. 0. nit 1 Pe 

C. LEGAL CHALLENGES TO THE 1997 PLAN. . .... ...... © 

I. The Remedial Proceedings in Shaw. ........... § 

2. The Parallel Cromartie Litigation .... .... .... . 8 

D. THE THREE-JUDGE DISTRICT COURT’S OPINION .. ..... © 3 

BE. THEINSOSINTERMMPLAN, . ii iiii oom Bi 

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ARGUMENT Lov. lita a, 

I. SUMMARY JUDGMENTISSUE................. 

I. PRECLUSION ISSUE. ........ 

111. PREDOMINANCE [SSUE. .. 

CONCLUSION .......c 0 a 

. 20 

. 30 

   



Vii 

TABLE OF AUTHORITIES 

CASES 

Ahng v. Alisteel, Inc.,96 F.3d 1033 (7th Cir. 1996) .... ..... 17 

Anderson v. Lipo joihy Inc., 477 U.S. 242 
(1986) . 13,14,15,16 

Bush v. Vera, 517 U.S. 952 (1990) ode rane . passim 

Celotex Corp. v. Catren, 477 U.S. 317 (1986) ............. I 

Chase Manhattan Bank, N.A. v. Celotex Corp., 
S6F3d34IQACI. 998) ovo. ie 17 

Cromwell v. County of Sac, 94 US. 351 (1876) ............ i$ 

Edwards v. Aguillard, 482 U.S. 578 (1987) ............ 14,16 

Federated Dep't Stores, Inc. v. Moitie, 

452 U.S. 394 (1981) ...... 18,19 

Gaffney v. Cummings, 412 U.S. 735 (1973) .. «23 

Gonzalez v. Banco Cent. Corp., 27 F.3d 751 
TORR na ae Tl eis 17 

Hlinois v. Krull, 480 U.S. 340 (1987) ........ 12 

Jaffree v. Wallace, 837 F.2d 146] (11th Cir. FORBY LA 

Johnson v. Mortham, 915 F. Supp. 1529 (1995) 13 

Karcher v. Daggett, 462 U.S. 725(1983) ........ ........ 22 

Lawyer v. Justice, 117 S. Ct. 2186 (1997) . 21,24,25,27,28 

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McDonald v. Board of Election Commer 's i C. Chicas > 

394 U.S. 802 (1969) . irae ICT ho 

Miller v. Johnson, 5151.8. 900 (1993) . x passim 

Mueller v. Allen, 463 U.S. 383 983) o.oo ini 5D 

Nordhorn v. Ladish Co., 9 F.3d 1402 (9tk Cir. 1993 ....... 37 

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ...... 14,28 

Quilter v. Voinovich, 931 F. Supp. 1032 
(N.D. Ohio 10s affd, 118 S. Ct. 1358 
(1998) . Si TE . 24,2526,27,28 

Reynolds v. Sims, 377 U.S. 533 ELL Sete SR 22 

Rostker v. Goldberg, 453 U S. 57 (1980)... iA 

Royal Ins. Co. of Am. v. Quinn-L Capital Corp., 
960 F 2d 1288(Sth Cir. 1992) +... .. 0. 17 

Shaw v. Hunt, 517 U.S. 899 1996): +0 veo ur 02 N5,24,26 

Shaw v. Reno, 509 U.S. 630(1393) ......... 3,152024.25.28 

Starceski v. nn Elec. Corp, 54 F.3d 1089 
(3d Cir. 1995) . HLS REN reat LOB © 

United States v. Hays, 515 U.S. 737 (3998): x... . FL ee. 7 

Voinovich v. Quilter, 507 U.S. 146 (J993) «.... cn. 00.28 

Wise v. Lipscomb, 437 U.S. 535 (1078) a nn 2S 

   



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STATUTES AND OTHER AUTHORITIES 

28 U.S.C. §1253 

28 U.S.C. § 2284(a) 

1998 N.C. Sess. Laws, ch. 2, § 1.1 

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18 JAMES WM. MOORE, ET AL., MOORE'S FEDERAL 
PRACTICE § 131 4013][e}{]}{B] (3d ed. 1997). ........ 49 

18 C. WRIGHT, ET AL., FEDERAL PRACTICE AND 
PROCEDURES 4457(198Y) .. vu 0 Ao 19 

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No. 97-893 
  

  
  

In the 

AY upreme Court of the United States 
October Term, 1997 

  

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

Appellants, 
y. 

MARTIN CROMARTIE, ef al. 

Appellees. 

  

Ou Appeal from the United States District Court 
Eastern District of North Carolina 
  

JURISDICTIONAL STATEMENT 
  

Governor James B. Hunt, ir., and the other state defendants below 

appeal from the firal judgment of the three-judge United States 

District Court for the Eastem District of North Carolina, dated April 

6, 1998, which held that the congressional redistricting plan enacted 
by the North Carolina General Assembly on March 31, 1997, was 
unconstitutional and permanently enjoined appellants from 

conducting any elections under that plan. 

OPINIONS BELOW 

The April 14, 1998, opinion of the three-judge district court, 

which has not yet been reported, appears in the Appendix to this 

jurisdictional statement at la. 

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JURISDICTION 

The district court's judgment was entered on April 6, 1998. On 
April 8, 1998, appellants filed an amended notice of appeal to this 
Coun. The jurisdiction of this Court is invoked under 28 U S.C. § 
1253. 

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED 

This appeal involves the Equal Protection Clause of the 
Fourteenth Amendment and Rule $6 of the Federal Rules of Civil 
Procedure, Summary Judgment. See App. 1692 & 171a-]73a. 

STATEMENT OF THE CASE 

A. THE 1997 REDISTRICTING PROCESS. 

n.Shaw v. Hint, 517 U.S. 899 (1996) (Shaw IT), this Court held 
that District 12 in North Carolina's 1992 congressional redistricting 
plan (“the 1992 plan”) violated the Equal Protection Clause beczuse 
rece predominated in its design and it could not survive strict scrutiny. 
On remand, the district court afforded the state legislature an 
opportunity to redraw the State’s congressional plan to correct the 
constitutional defects found by this Court, and the legislature 
established Senate and House redistricting committees to carry out 
this task. 

In consultation with the tegislative leadership, the commitiees 
determined that, to pass both the Demociatic-controlled Senate and 
the Republican-controlled House, the new plan would have to 
maintain the existing partisan balance in the State’s congressional 
delegalion (a six-six split between Democrats and Republicans). 
Toward that end, the committees sought a plan that would preserve 
the partisan cores of the existing districts and avoid pitting 
incumbents against each other, to the extent consistent with the goal 
of curing the constitutional defects in the old plan. To craft 

   



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“Democratic” and “Republican” districts, the committees used the 
results from a series of elections between 1938 and 1996. 

Indesigning the plan, the committees of course sought to cemply 
with the requirements of the Voting Rights Act, as well as the 
constitutional requirement of population equality. Acutely conscious 
of their responsibilities under Shaw v. Reno, 509 U.S 630 (1993) 
(“Shaw I"), and its progeny, however, they sought a plan in which 
racial considerations did not predominate over traditional race-neutral 
districting criteria. Toward this end, they decided to emphasize the 
following traditional race-neutral districting principles in designing 
the plan: (1) avoid dividing precincts; (2) avoid dividing counties 
when reasonably possible; (3) eliminate “cross-overs,” “double crass- 

overs,” and other artificial means of maintaining contiguity: (4) greup 
together citizens with similar needs and interests; and (5) ensure ease 

of communication between voters and their representatives. The 
committees did not select geographic compactness as a factor that 
should receive independent emphasis in constructing the plan. 

The committees’ strategy proved successful. On March 31, 1997. 
the North Carolina legislature enacted a new congressional 
redistricting plan, 1997 Session Laws, Chapter 1] (“the 1997 plan”). 
the redistricting Jaw at issue in this case. The plan is a bipartisan one. 
endorsed by the leadership of both parties in both houses 

B. THe 1997 PLAN. 

The 1997 plan creates six “Democratic” districts and six 
“Republican” districts. The new districts are designed to preserve the 
partisan cores of their 1992 predecessors, yet their lines are 
significantly different: they reassign more than 25% of the State’s 

  

' In North Carolina, as in most of the soLtheastemn states, it is viually impossible 
to design a congressional rap that does not split zny of the Stats’s 100 countics, 
given the conslitutional mandate of population equality and other legitimate 

districting concems 

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population and nearly 25% of its geographic area. The most dramatic 
changes are in District 12, which contains less than 70% of its 
original population and only 41.6% of its original geographic area. 

The 1997 plan respects the traditional race-neutral districting 
criteria identified by the legislature: it divides only two of the State’s 
2,217 election precincts (and then only to accommodate peculiar local 
characteristics); it divides only 22 of the State’s 100 counties (none 
among more than two districts); all of its districts are contiguous, and 
itdces not rely on artificial devices like cross-overs and double cross 
overs lo achieve that contiguity.” Though the legislature did not 
emphasize geographic compactness for its own sake in designing the 
1997 plan, its districts are si gnificantly more geographically compact, 
judged by standard mathematical measures of geographic 
compactness, than their predecessors in the 1992 plan. 

The 1997 plan is racially fair, but race for its owa sake was not 
the predominant factor in its design or the design of any district 
within it. Indeed, 12 of the 17 African-American members of the 
House voted against the plan because they believed it did not 
adequately take into account the interests of the State’s African- 
American residents. 

District 12 is one of the six “Democratic” districts estab ished by 
the 1997 plan. Seventy-five percent of the district’s registered voters 
are Democrats, and at Jeast 62% of them voted for the Democratic 
candidate inthe 1988 Court of Appeals election, the 1988 Lieutenant 
Governor election, and the 1990 United States Senate election. 
District 12 is not a majority-minority district by any measure: only 
46.67% of its total population, 43.36% of its vot ing age population, 

    

' In contrest, the 1992 plan this Count invalidated 1 Shaw 1 civided 8) precincts; 
divided 44 of the State’s 100 counties {scver of them among three different 
districis); and zchieved com iguity only through artificial devices 

   



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and 46% of its registered voter population is African-American.’ 
While it does rely on the strong demonstrated support of African- 
American voters for Democratic candidates to cement its status as one 
of the six Democratic districts, partisan election data, not race, was 
the predominant basis for assigning those voters to the district. 

District 12 respects the traditional race-neutral redistricting 
criteria identified by the legislature. Jt divides only one precinct (a 
precinct that is divided in all Jocal districting plans as well}: it 
includes parts of only six counties; and it achieves contiguity without 
relying on actificial devices like cross-overs and double cross-overs. * 
It creates a community of voters defined by shared interests other than 
race, joining together citizens with similar needs and interests in the 
urban and industrialized areas around the interstate highways that 
connect Charlotte and the Piedmont Urban Triad. Of the 12 districts 
in the 1997 plan, it has the third shortest travel time (1.67 hours) and 
the third shortest distance (95 miles) between its farthest points, 
making it highly accessible for a congressional representative. District 
12 is significantly more geographically compact than its 1992 
predecessor. 

District 1 is another of the six “Democratic” districts established 
by the 1997 plan. Unlike District 12, District 1 is a majority-minority 
district by one measure: 50.27% of its total population is A frican- 
American. Like District 12, District | respects the traditional race- 
neutral redistricting criteria identified by the legislature. It contains no 
divided precincts; it divides only 10 counties; and it achieves 
contiguity without relying on artificial devices like cross-overs and 

  

' 11 contrast, 56.63% of the total population, 53.34% of the voting age 
pepulation. and 53.54% of the registered voter population of District 12 in the 1992 
plan was African-American 

' In contrast, District 12 in the 1992 plan divided 48 precmds; included parts of 
ten counties; and achieved contiguity only through artificial devices. 

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double cross-overs.® It creates a community of voters defined by 
shared interests other than race, joining together citizens with similar 
needs and interests in the mostly rural and economical y depressed 
counties in the State's northern and central Coastal Plain. 

Because 40 of Narth Carolina’s 100 counties are subject to the 
preclearance requirements of § 5 of the Voting Rights Act, the 
legislature submitted the 1997 plan to the United States Department 
of Justice for preclearance. The Department precleared the plan an 
Jupe 9, 1997. 

C. LEGAL CHALLENGES TO THE 1997 PLAN. 

I. The Remedial Proceedings in Shaw. 

Equal protection challenges to the 1997 plan were first raised in 
the remedial phase of the Shaw litigation, when the State submitted 
the plan to the three-judge court to determine whether it cured the 
constitutional defects in the earlier plan. Two of (he plaintiffs who 
challenge the 1997 plan in the instant case -- Martin Cromartie and 
Thomas Chandler Muse -- participated as parties plaintiff in that 
remedial proceeding, represented by the same attomey who represents 
them in this case, Robinson Everett $ 

In that proceeding, Cromartie, Muse, and their co-plaintiffs (“the 
Shaw plaintiffs”) were given an opportunity to litigate any 
constitutional challenges they might have to the 1997 plan, a plan 
which the State had enacted under the Shaw court’s injunction, as a 

  

* In contrast, District | in the 1992 plan split 25 precincts and 20 countizs, and 
achieved contiguity only through artificial devices. 

The original phaintifls in Shaw were five residents of District 12 as it existed 
under the 1992 plan. On remand from this Court's decision in Shaw H, Cromartie 
and Muse sought and obtained the district cotrt's leave to join them as plainifTs, in 
order to assert a claim that District | in the 1992 plan was an unconstitutional rzcizl 
gemrymandzr -- a claim which this Court had just held thst the original Shaw 

plaintiffs Iscked standing to assent. 

  

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proposed remedy for the plan this Court had Just Ceclared 
unconstitutional.” They elected not to avail themselves of thal 
opportunity. They did inform the Shay court that they believed the 
1997 plan to be “unconstitutional” because Districts ) and 12 -- the 
same districts they now challenge in this zction -- had been “racially 
gerrymandered.” App. 183a- 186a. At the same time, however, they 
asked the court not to decide their constitutional challenges to the 
proposed remedial plan. The reasonthey gave was someschat curious: 
that the court lacked authorily to entertain these claims, because none 
of them had standing fo challenge tlie proposed plan under United 
States v. Hays, 515 U.S. 737 (1995).* For this reason, they asked the 
court “not [to] approve or otherwise rule on the validity of” the new 
plan, and to “dismiss this action without prejudice to the right of any 
person having standing to maintain a separate action attack ing [its] 
censtitutionality.”” App. 186a. The state defendants actively opposed 
phaintiffs’ effort to reserve their constitutional challenges to the 1997 
plan for 2 new lawsuit. 

The three-judge court rejected the Shaw plaintiffs’ argument that 
it lacked jurisdiction lo entertain their constitutional challenges to the 
State’s proposed remedial plan. App. 166a-168a. The court then went 

  

? App. 181a-182a (directing the Shaw plantif)s to advis: the court “wheter they 
ended] to clair that the [1997] plan should not be approved by the court becaise 
it does not cure the constitutional dzfests in the former plaa™ and, if so, ‘to identify 
the basis for that claim”). 

* App. 186a (“Because of the lack of starding of the Plaintiffs. there appears fo 
be no matter at issue before this Coun with respect 10 the ney redistricting plan) 
The Shaw: plaintiffs kased this aiguiment on the assertion that none of them resided 
in the redrawn District 12. Apa. 185a-186a. The argument was somewhat 
disigenvous, for at least two of their number -- Cromartie and Muse -- resided in 
the redrawn District | and thus Fad standing te assert a racial gemymaidering 
chatlenge to the 1997 plan, cven urder their own bizarre reading of the Hays 
cecision. 

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on to rule that the plan was “in conformity with constitutional 
requirements” and that it was an adequate remedy for the 
constitutional defects in the prior plan “as to the plaintiffs and 
plaintiff-intervenors in this case.” App. 160a, 167a. On that basis, the 
court entered an order approving the plan and authorizing the state 
defendants to procesd with congressional elections under it. App. 
157a-158a. The Shaw plaintiffs took no appeal from that order. 

2. The Parallel Cromartie Litigation. 

Having forgone an opportunity to litigate their constitutional 
challenges to Districts 1 and 12 in the 1997 plan before the three- 
judge court in Shaw, Cromartie and Muse immediately sought to have 
those same claims adjudicated by a different three-judge court. They 
did so by amending a complaint in a separate lawsuit they had 
previously filed against the same defendants, a lawsuit in which they 
were also being represenied by Robinson Everett. In that amended 
complaint, Cromartie, Muse, and four persons who had not been 
named as plaintiffs in Shaw (“the Cromariie plaintiffs”) asserted 
racial gerrymandering challenges fo Districts 1 and 12 in the 1997 
plan, the very plan the th ree-judge court in Shaw had just approved 
over their objection. 

On January 15, 1998, the Cromartie case was assigned to a three- 
Judge panel, consisting of one Judge who had served on the three- 
judge pauel in Shaw -- Judge Voorhees, who had dissented from the 
panel’s decisions ir Shaw I and Shaw 71 -- and two new judges. On 
January 30, 1998, the Cromartie plaintiffs moved for a preliminary 
injunction halting all further elections under the 1997 plan. Several 
days lates, they also moved for summery judgment. The state 
defendants responded with a cross-motion for summary judgment. 

On March 31, 1998, before it had permitted either party (o 
conduct any discovery, the three-judge court heard brief oral 
arguments on the pending motions for preliminary injunction and 
summary judgment. Three days later, the court, with Circuit Jud ge 

   



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Sam J. Ervin, 111, dissenting, entered an order graating the Cromartie 
plaintiffs’ motion for summary judgment, declaring District 12 in the 
1997 plan unconstitutional, and permanently enjoining the state 
defendants from conducting any elections under the 1997 plan.* The 
court’s order did not explain the basis for ifs decision, stating only 
that “[m Jerzoranda with reference to [the] order will be issued as soon 
as possible.” App. 45a-46a. 

The state defendants immediate! y noticed an appeal to this Court. 
Since the elections process under the 1997 plan was already in {ull 
swing, they asked the district court to stay its Apri! 3rd order pending 
disposition of that appeal. The district court declined to do so. The 
state defendants then applied to Chizf Justice Rehnquist for a stay of 
the same order. The Chief Justice referred that application to the full 
Coart, which denied it on April 13, 1998, with Justices Stevens, 
Gmsbuirg, and Breyer dissenting. When this Court acted on that stay 
application, the district court had yet to issue an opinion explaining 
the order and permanent injunction in question. 

D. THE THREE-JUDGE DISTRICT COURT'S OPINION. 

On April 14, 1998, the three-judge court issued an opinion 
explaining the basis for its order of April 3, 1998. Al the outset, the 
court ruled that “the September 12, 1997, decision of the Shaw three- 
judge panel was not preclusive of the instant cause of action, as the 
panel was no! presented with a continuing challenge to the 
redistricting plan.” App. 3a-4a. The court then held that (he 
Cromartie plaintiffs were entitled to summary judgment on their 
challenge to District 12, because the “uncontroverted material facts” 

  
  

The order made no reference © District |. though the Cromartie phaintifis also 
had moved for Summary judgment on their claim that it was an unconstitulional 
racial garrymander. Not uatil ths memorandum opinion was filed ca Apel 14, 1998, 
did the court explain that it was dznying summery judgmert as to Distiic |. App. 
2232-23a_ 53a. 

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established tha the legislature had “utilized race as the predominant 
factor in drawing the District” App. 21a-22a. Unlike the lower courts 
whose “predominance” findings this Court upheld in Miller, Bush, 
and Shaw 11, the court did not base this finding on any direct evidence 
of legislative motivation: instead, it relied wholly on an inference it 
drew from the district’s shape and racial demographics. The court 
reasoned that District |2 was “unusually shaped,” that it was “still the 
most geographically scattered” of the State’s congressional districts, 
that its dispersion and perimeter compactness measures were lower 
than the mean for the 12 districts in the plan, that it “include[s) nearly 
all of the precincts with African-American population proportions of 
over forty percent which lie between Charlotte and Greensboro,” and 
that when it splits cities and cou nties, it does so “along racial lines.” 
The court concluded that these “facts,” which it characterized as 
“uncontroverted,” established -- as a matter of law -- that the 
legislature had “disregarded traditional districting criteria” and 
“utilized race as the predominant factor” in designing District 12. 
App. 192-223. 

Finally, the court held that the Cromariie plaintiffs were not 
entitled to summary judgment on their challenge to District 1, the 
only majority-minority district in the 1997 plan. The court did not 
explain the basis for this holding, except to say that the Cromartie 
plaintiffs had “failed to establish that there are no contested material 
issues of fact that would entitle [them] to judgment as a matter of law 
as to District 1.” App. 22a. In denying the state defendants’ cross- 
motion for summary judgment on the same claim, however, the court 
stated that the “contested material issue of fact” concerned “the use 
of race asthe predominant factor in the districting of Disirict 1.” App. 
23a. 

Judge Ervin dissented. App. 25a. In his view, the majority’s 
conclusion that the evidence in the summary judgment record was 
sufficient to establish -- as a matter of law -- that race had been the 
predominant factor in the design of District 12, was strikingly 

   



11 

inconsistent with its conclusion thal the same evidence was nol 
sufficient to establish that race had been the predominant factor in the 
design of District 1, given that the two districts were drawn by the 
same legislators, at the same time, as part of the same state-wide 
redistricting process. The Inconsistency was even more striking, he 
noted, “when cne considers that the legislature placed more African- 
Americans in District | . . . than in District 12.” App. 38a. 

E. THE 1998 INTERIM PLAN. 

On April 21, 1998, the court entered an order allowing the 
General Assembly 30 days to redraw the State's congressional 
redistricting plan to correct the defects it had found in the 1997 plan. 
App. 55a. On May 21, 1998, the General Assembly by bipartisan 
vote enacted another congressional redistricting plan, 1998 Session 
Laws, Chapter 2 (“the 1998 plan”), and submitted it to the court for 
approval. The 1998 plan is effective for the 1998 and 2000 elections 
unless this Court reverses the district court decision holding the 1997 
plan unconstitutional.” The Department of Justice precleared the 
1998 plan on June 8, 1998. 

On June 22, 1998, the district court entered an order tentatively 
approving the 1998 plan and authorizing the State to pioceed with the 
1998 elections under it. App. 175a-i80a. The court explained that 
the plan's revisions to District 12 “successfully addressed” the 
concems the court had identified in its April 14, 1998 opinion, and 
that it appeared, “from the record now before [the court),” that race 
had not been the predominant factor in the design of that revised 
district. The court noted that it was not ruling on the constitutionality 
of revised District |, and i directed the parties to prepare for trial on 

  

" See 1998 N.C. Sess Laws, ch. 2, § LJ (“The plan adopted by this act is fective 
for the clections for the years 1998 and 20C0 unless the United States Supreme 
Court reverses the decision holding vnconstiltional G.S. 163-201(a) as it existed 
prior ‘0 the cmactuiead of this act”). 

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that issue. It also “reserve[d] jurisdiction” to reconsider its ruling on 
the conslitutionality of redrawn District 12 “should new evidence 
emerge.” App. 1772a-179a. 

ARGUMENT 

I. SUMMARY JUDGMENT ISSUE. 

The district court's application of the Rule 56 summary judgmen| 
standard in this context presents substantial questions that warrant 
either plenary consideration or summary reversal. 

The threshold inquiry for deciding whether a district is subject to 
strict scrutiny under Shan, turning as it does on the actual motivaticns 
of the state legislators who designed and enacted the plan, is 
peculiarly inappropriate for resolution on summary judgment. This 
Court has repeatedly affirmed its “reluctance to attribute 
unconstitutional motives to the states.” Mueller v. Allen, 463 U.S. 
388,394 (1983). When a federal court is called upon to judge the 
constitutionality of an act of a state legislature, it must “presume” that 
the legislature “actfed] in a constitutional manner,” Minois v. Krudl, 
480 U.S. 340, 351 (1987); see McDonald v. Board of Election 
Comm rs of Chicago, 394 U.S. 802, 809 ( 1969), and remember that 
it “is not exercising a primary judgment but is sitting in judgment 
upon those who also have taken the oath to observe the Constitution.” 
Rostker v. Goldberg, 453 U.S. 57, 64 (1981) (intemal quotation 
omitted). In Miller v. Johnson, 515 U.S. 900 (1999), this Court made 
clear that these cautionary principles are fully applicable in Shaw 
cases. See 515 U.S. at9)5 (“Although race-based decisionmaking is 
inherently suspect, until a claimant makes 2 showing sufficient to 
support that allegation, the good faith of a state legislature must be 
presumed.” (citations omitted). Indeed, they have even greater force 
in Shaw cases, given the sensitive and highly political nature of the 
redistricting process and the “serious intrusion” on state soverei gnty 
that federal court review of state districting legislation represents. 515 

   



13 

U.S. at 916 (admonishing lower courts to exercise “extraordinary 
caution” in adjudicating Shaw claims) (emphasis added). 

[gnoring this Court’s directives, and oblivious to the fact that the 
invalidation of a sovereign state’s duly-enacted electoral districting 
plan is nol a casual matter, the court below resolved the contested 
issue of racial motivation -- and with it, the issue of the planr’s validity 

-- on summary judgment. On the basis of a brief hearing, at which it 
heard no live evidence but merely argument from counsel it 
concluded that plaintiffs had established -- as a matter of law -- that 
race had been the predominant factor in the construction of District 
12. App. 21a-22a. In so doing, it committed clear and manifest error. 

The district court’sdecision is flatly inconsistent with this Court’s 
decision in Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). 
There, this Court made clear that a motion for summary judgment 
must be resolved by reference to the evidentiary burdens that would 
apply at trial. Jd. at 250-54. Where, as here, the party who seeks 
summary judgment will have the burden of persuasion at trial, he can 
obtain summary judgment only by showing that the evidence in the 
summary judgment record is such that no reasonable factfinder 
hearing that evidence at trial could possibly fail to find for him. Jd at 
252-55. In other words, he must demonstrate that the evidence, 
viewed in the light most favorable to his opponent, is “so one-sided" 
that he would be entitled to judgment as a matter of law at trial. 7d, at 
249-52. 

tn this case, plaintiffs hed the burden of persuasion at trial on the 
predominance issue. Miller, 515 U.S. at 916. The district court utterly 

ignared this critical fact in concluding that they were entitled to 
summary judgment on their claim challenging the constitutionality of 
District 12. Indeed, the court appeared fo be analyzing their motion 
for summary judgment under the standard that applies to parties who 
will nor have the burden of persuasion at trial. App. 2)a (citing 

Celotex Corp. v. Calrett,477 U.S. 317, 324 (1986)). 

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Had the district court applied the standard this Court's precedents 
direct it to apply, it could rot have justified the conclusion that 
plaintiffs were entitled to summary judgment on their claim 
challenging the constitutionality of District 12. To obtain summary 
Judgment on that claim under Liberty Lobby, plainliffs were required 
to show that no reasonable finder of fact, viewing the evidence in tke 
summary judgment record in the light most favorable to the state 
defendants, could possibly find that race had nor been the 
predominant factor in its design. 477 U.S. at 252-55. The only 
evidence in the record tending to show that race had been the 
predominant motivation in the construction of District 12 was an 
inference the plaintiffs asked the court to draw from their evidence of 
the district's shape and racial demographics.’ There was absolutely 
no directevidence" of such an improper motivation before the district 
court: no concessions to that effect from the state defendants, and no 
evidence of statements to that effect in the legislation itself, the 
committee hearings, the committee reports, the floor debates, the 
State’s § 5 submissions, or the post-enactment statements of those 
who participated in the drafting or enactment of the plan. Compare 

  

'" Plaintiffs presented various maps and demographic data as well as the aflidevils 
of several experts who relied on the same evidence of shape and recial demographics 
to opine that race was the predominant factor used by the State to draw the 
boundaries of the ccngressiona! districts. Such postenaciment testimony of eutside 
experts “is of litle use” in determining the legislalure’s purpose in enacting a 
particular statute, wher: none of those experts “participated in or contributed to he 
enactment of the law or its implementation.” Edwards v. Aguillard, 482 U.S. 578, 
395-96 (1987). 

While the distinction between “direct” and “circumstantial” evidence is “olten 
subtle and difficult,” Price Waterhouse v. Hepkins, 490 U.S. 228, 291 (1989) 
(Kennedy, J., dissenting), most courts define “direct evidence” of motivation as 
“conduct or siztements by persens involved in the decisionmaking process (hat may 
be viewed as directly reflecting the alleged [motivation].” Starcesti v Wesiinghouse 
Elec. Cocp., S4 F.3d 1089. 1096 (3d Cir. 1993) 

   



15 

Miller, 515 U.S. at 918; Bush v. Vera, S17 U.S 952, 959-62, 969-7 | 
(1996) (plur. op.); Shaw II, 517 US. at 906. This evidence was 
legally insufficient, even if uncontradicted, to permit a reasopable 
finder of fact to conclude that plaintiffs had discharged their burden 
of persuasion on the predotninance issue. A court must “look further 
than a map” to conclude that race was a state legislature’s 
predominant consideration in drawing district lines as amatier of law. 
Johnson v. Mortham, 915 F. Supp. 1529, 1565 (1995) (Hatchet, :., 
dissenting)."” 

By contrast, the summary judgment record contained substantial 
direct evidence that mce had ros been the predominant factor in the 
design of District 12. This evidence consisted of affidavits from the 
legislators who headed the legislative committees that drew the 1997 
plan and shepherded it through the General Assembly. See App. 69a- 
84a. These legislators testified under oath that they and their 
colleagues were well aware, when they designed and passed the 1997 
plan, of the constitutional limitations imposed by this Court's 
decisions in Shaw /and its progeny, and that they took pains to ensure 
that the plan did not run afoul of those limitations. They also testified 
under cath that the boundaries of District 12 in the plan had been 
motivated predominantly by partisan political concerns and other 
legitimate race-neutral districting considerations, rather than by racial 
considerations. At the summary judgment stage, the district court was 
obligated to accept this testimony as truthful. See Liberty Lobby, 477 
U.S. at 255 (“The evidence of the nonmovant is to be believed, and 
all justifiable inferences are to be drawn in his favor.”). The district 
courtdid precisely the opposite: it assumed that these state legislators 
had lied under oath about the factors that motivated them in drawing 

  

® While the combination of a map and racial demographics may, uncer certain 
extraordinary circumstances, be wilicien! 0 state 2 claim "hat rice was the 
predominant factor in a district's design, see Shaw J, there is a vast dificrence 
between stating a claim and proving it 

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the lines of District 12. That assumption was one this Court's 
precedents simply did nct permit it to make at this stage of the 
litigation. See id.; Miller, S15 U.S. at 915.16. 

The district court's application of the Rule 56 standard was so 
irregular that summary reversal is warranted, even if this Court 
concludes that the case does not present issues warranting plenary 
consideration. “Striking down a Jaw approved by the democratically 
elected representatives of the people is no minor matter,” and this 
Court’s precedents do not pemit it do be done “on the gallop.” 
Edwards v. Aguillard, 482 U.S. 578, 626, 61) (1987) (Scalia, J., 
dissenting). 

Ii. PRECLUSION ISSUE. 

This case also raises important issues concerning the effect of a 
final judgment from a court of competent jurisdiction holding a state's 
proposed redistricting plan constitutional on the ability of the parties 
to that judgment and their privies to challenge the same plan again in 
a later lawsuit before a different court. 

Two of the plaintiffs herein -- Cromartie and Muse — participated 
as parties plaintiff in the remedial proceedings in Shaw. In those 
proceedings, the court offered them a full and fair opportunity to 
litigate any constitutional challenges they might have to the 1997 
pan, which the State had proposed as a remedy for the constitutional 
defects found in the earlier plan. They elected not to avail themselves 
of that opportunity, and the Shaw cour: entered a final judgment 
finding the plan constitutional and authorizing the State to proceed 
with elections under it. Under elementary principles of claim 
preclusion, that final judgment extinguished any and all claims 
Cromartie and Muse had with respect to the validity of the 1997 plan, 
including the claim they now assert in this action, which challenges 
the plan's District | as a racial gemymander. That Cromartie and 
Muse elected not to assert thal particular claim in Shaw will net save 
it from preclusion here; indeed, the very purpose of the doctrine of 

   



17 

claim preclusion is to prevent plaintiffs from engaging in this sort of 

strategic claim-splitting. 
The final judgment entered in Shaw also bars the claim plaintiffs 

Evereti, Froelich, Linville, and Hardaway assert in this action, which 

challenges the 1997 plan’s District 12 as a racial gerrymander. 
Though these individuals were not formally named as parties in Say, 
they are bound by the final judgment entered in that case because 
their interests were so closely aligned with those of the Shaw 
plaintiffs asto make the Shaw plaintiffs their “virtval representatives” 

in that earlier action." 
Ignoring fundamental principles of claim preclusion, the district 

court held that the final judgment entered in Shaw did not bar the 
claims appellants assert here. App. 3a-4a. The court based this 

conclusion on its understanding that the Shaw court “was not 

presented with a continuing challenge to the redistricting plan.” App. 

4a. To the extent the court meant that the Shaw court did not resolve 

  

'* A party may be bound by a prior judgment. even though he was net formally 

named as a panty in that prior astion, when his interests wesc closely aligned with 

those of a parly to the prior aclion and there are olher indicia that the party was 

serving as the non-party's “virtual represertative” in the prior action. See Ahmg v. 

Allsteel, Inc., 96 F.3d 1033, 1037 (7th Cir. 1996), Chase Manhattan Bank, N.A. v. 

Celatex Corp., S6 F.1d 34), 345.46 (2d Cir. 1995); Gorzalez v. Bance Cent Corp., 

27 F.3d 751,761 (1st Cir. 1994%, Nordhorn v. Ladish Co., 9 F.3d 1402, 1405 (91h 

Cir. 1993). Royal Ins. Co. of Ar. v. Quinn-L Capital Corp, 960 F.2d 1286, 1297 

(54k: Cir. 1992), Jaffree v. Wallace, 837 F.2d 1461. 1467-58 (11th Cir. 1988). The 

relationship between the Shaw plaintifls and the four plaintiffs who challange 

District 12 in this acton has many of the classic indicia of “virtual representation’: 

close relationships between the parties and the monparties, shared counsel. 

simultaneous tigation seeking th: syme tase telizf under the same basic icgal 

theory. and spparent laciical maneuvering to avoid preclusion See Jaffree, 837 F.2d 
a 1467. 

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the issue of the 1997 plan’s constitationality, it was mistaken." To the 

extent the court meant only that the Shaw plaintiffs chose to assert no 

challenge to the 1997 plan in those earlier proceedings, it missed the 

central point of the doctrine of claim preclusion, which bars claims 

that were or could have been biought in the prior proceedings. The 

district court’s holding on the preclusion issue presents substantial 

questions warranting either plenary consideration or summary 

reversal. 

The district court’s decision conflicts directly with this Court's 

cases defining the preclusive effect of a prior federal judgment. As 

those decisions make plain, when a federal court enters a final 

judgment, that judgment stands as an “absolute bar” to a subsequent 

action concerning the same “claim or demand” between the same 

parties and those in privity with them, “not only as to every matter 

which was offered and received to sustain or defeat the claim or 

demand, but [also] as to any other admissible matter which might 

have been offered for that purpose.” Cromwell v». County of Sac, 94 

U.S. 351, 352 (1876). 
The district court’s decision also conflicts with Federated Dep't 

Stores, Inc. v. Moitie, 452 U.S. 394 (1981). In that case, this Court 

  

The Shaw count did not expressly reserve the clsims in qiestion for resolution 

in a laler proceeding Though the Shaw phaintifis esked it Io “digniss the action 

without prejudice to the right of any person having standing to bring a new action 

attacking the constitutionality of the [1997] plan,” App. |86a, the court declined fo 

de se. While the coun s:ated tha! its apptoval of the plan was necessarily “limited 

by the dimensions of this civil action as that is ¢efined by the panties and the claims 

properly before us.” and that it therefore did not “run beyond the plan's remedial 

adequacy with tespect to those parties,” it specifically held tae plan constitutional 

"as to the plaintifis . . _ io this case.” App. 1672, 1602. The only claim tte court 

dismissed “without prejudice” was “the claim added by amendment to she complaint 

in this action on July 12, 1996,” in which the Shaw plaintiffs “challenged on ‘racial 

gerrymandering” grounds the creation of former congressional District 1.” App. 

1582. (emphasis edded.) As the court recognized, this claim was mooted hy its 

approval of the 1997 plan. App. 1652, 168a. 

   



19 

made clear thal a federal ccurt may not refuse to apply the doctrine of 
claim preclusion simply because it believes the prior judgment to be 
wrong. Id. at 398. As this Court explained, the doctrine of claim 
preclusion serves “vital public interests beyond any individual judge's 
ad hoc determination of the equities in a particular case,” including 
the interest in bringing disputes to an end, in conserving scarce 

Judicial resources, in protecting defendants from the expense and 
vexat:on of multiple duplicative lawsuits, and in encouraging reliance 
on the court system by minimizing the possibility of inconsistent 
judgments. Id. at 401. The district court’s decision here -- a 
transparent attempt to correct a perceived error in an earlie: judgment 

that the Josing party failed to appeal — flies in the face of this bedrock 

principle of our civil justice system. 
The policies behind the doctrine of claim preclusion are at their 

most compelling when the claims in question seek to interfere with a 

state’s electoral processes. The strong public interest in the orderly 

administration of the nation’s electoral machinery requires efficient 

and decisive resolution of any disputes regarding these matters." In 

this case, the district court’s disregard of basic principles of claim 

preclusion has resulted in the entry of two dramatically inconsistent 

  

* In 2ddition, the district court's decision conflicts, at least in princisle, vith th: 

decisions of at least six federal circuit courts applying the “virtual represen ation” 

theory of privity. See cases cited supra note 14. This conflict is illusirat:ve of the 

widespread corfusion in the lower federal courts as w the proper scope of the 

“virtual representation” doctrine. See 18 JAnES Wa. MOORE, ET AL., MOORE'S 

FEDIRAL PRACTICE § 131.40{3][c][1|[B] (3d ed. 1997) (collecting cases); 8 

C. WRIGHT, ET AL., FEDERAL PRACTICE AND PROCECURE § 4457 (1981) (same). 

Preciszly for this reason, Congress has provided for a right ef direct appeal to 

this Court from any order of 8 three-judge count grantirg er denying a request fo: 
injunctive relief in any civil action challenging the constiwtionality of the 

apportionment of congrzssional districts or the zpportiomment of any staievwide 

legislative body. Sze 28 U.S.C. § 1253; 28 U.S.C. § 2234(a). 

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judgments -- one ordering the State to go forward with its 
congressional elections under the 1997 plan and the other enjoining 
it from doing so -- which have left the State's electoral Erocess in 
disarray. It has significantly prolonged final resolution of the legal 
controversy over the constitutionality of North Carolina’s 
congressional districts, wasting judicial resources, diverting the state 
legislature from the business of governing, and causing the State’s 
taxpayers to incur significant additional expense. it is difficult to 
imagine a greater affiont to the policies behind the doctrine of claim 
preclusion, to core principles of state soverei gnty and federalism, and 
to the very integrity of the federal system of justice itself. 

The district court’s resolution of the preclusion issue is so flally 
inconsistent with this Court's precedents that summary reversal is 
warranted, even if this Court concludes that the case does not present 
issues warranting plenary consideration. 

II. PREDOMINANCE ISSUE. 

In Shaw 1, this Coun first recognized that a faciall y race-neutral 
electoral districting plan could, in certain exceptional circumstances, 
be a “racial classification” that was subject to strict scrutiny under the 
equal protection clause. 509 U.S. at 642-44, 646-47, 649. Two years 
later, in Miller, this Court set forth the showing required to trigger 
strict scrutiny of such a districting plan: “that race for its own sake, 
and not other districting principles, was the legislature’s dominant 
and controlling rationale in drawing its district lines.” $15 U.S. at 
913 (emphasis added). To satisfy this standard, a plaintiff must prove 
that the legislature “subordinated traditional race-neutral districting 
pricciples . . . 10 racial considerations,” so that race was “the 
predominant factor” in the design of the districts. d. at 91 6; see id. at 
928-29 (O’Connor, J., concurri ng) (strict scrutiny applies only when 
“the State has relied on race in substantial disregard of customary and 
traditional [race-neutral] districting practices”) 

   



21 

In Miller, this Court recognized that “{flederal count review of 
districting legislation represents a serious intrusion on the most vital 
of local functions,” that redistricting legislatures are almost always 
aware of racial demographics, and that the “distinction between being 
aware of racial considerations and being motivated by them” is often 
difficult to draw. 515 U.S. at 915-16. For these reasons, this Court 
directed the lower courts to “exercise extraordinary caution” in 
applying the “predominance” test. Jd. at 916; see id at 928-29 
(O’Connor, J., concurring) (stressing that the Miller standard is a 
“demanding” one, which subjects only “extreme instances of [racial] 
gerrymandering” to strict scrutiny) 

In its various opinions in Bush, this Court made clear that proof 
that the legislature considered race as a factor in drawing district lines 
is not sufficient, without more, to trigger strict scrutiny. See 517 U.S. 
at 958 (plur. op.); id. at 993 (O’ Connor, J., concurring); and id. at 
999-1003 (Thomas, J., joined by Scalia, J., concurring in Judgment). 
Nor is proof that the legislature neglected traditional districting 
criteria sufficient to rigger strict scrutiny. See id. at 962 (plur. op.); 
id. at 993 (O'Connor, J., concurring); id. at 1000-001 (Thomas, J. 
Joined by Scalia, J., concurring in judgment). Instead, strict scrutiny 
applies only when the plaintiff establishes both that the State 
substantially neglected traditional districting criteria in drawing 
district lines, and that it did so predominantly because of racial 
considerations. See id. at 962-63 (plur. op.) and at 993-94 (O’Con nor, 
J., concurring) (emphasis added). Accord Shaw II, 517 US. at 906- 
07; Lawyer v. Justice, [17 S. Ct. 2186, 2194-95 (1997). 

In this case, the North Carolina legislature, exercising the State’s 
sovereigr right to design its own congressional districts, selected a 
number of traditional -- and race-neutral -- districting criteria to be 
used in constructing the 1997 plan: contiguity. respect for political 
subdivisions, respect for actual communities of interest, preserving 
the partisan balance in the State's congressional delegation, 
preserving the cares of prior districts, and avoiding contests between 

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incumbents. All of these criteria were ores that this Court had 

previously approvedas legitimate districting criteria. "* The legislature 

did not, however, select geographic compactness as a criterion to 

receive independent emphasis in drawing the plan. The 1997 plan as 

drawn does not neglect any of the traditional race-neutral districting 

criteria the legislature set out to follow; to the contrary, it substantially 

complies with all of them. 

The district court nonetheless concluded that the legislature 

“disregarded traditional districting criteria” in designing District 12, 

because it failed tocomply with two race-neutral districting principles 

that it never purported to be following -- specifically, the criteria of 

“geographical integrity” and “compactness.” App. 212-22a. The court 

believed the legislature’s apparent disregard of these two districting 

principles in drawing District 12, together with evidence that the 

district “include{s] nearly all of the precincts with African-American 

population proportions of over forty percent which lie between 

Charlotte and Greensboro,” and that it “bypzsse[s]” certain precincts 

with large numbers of registered Democrats, established that race, 

rather than partisan political preference, had been the predominant 

factor in the design of District 12. App. 19a-2)a. This extreme 

misapplication of the threshold test for application of sirict scrutiny 

ina case of such importance to the people of North Carolina warrants 

plenary review for at least four reasons. 
First, the district court’s reliance on District 12’s relative lack of 

geographic compactness and geographical integrity was based on a 

fundamental misunderstanding of the nature and purpose of the 

  

" See Milles, 515 U.S. at 916 (contiguity, respect for political subdivisions, and 

respect for communities defined by shated interests other than race); Gaffney v. 

Cumnaings, 412 U.S. 735, 751-54 (1973) (preserving partisan balance’; Karcher v. 

Daggetr. 462 U.S. 725, 740 (1983) (preserving the cores of prior disiricls and 
avoiding contests between incumbents); Reymolds v Sims, 377 U.S. 53, 580 (1964) 

(ensuring “access of citizens to their representalives™). 

  

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“disregard for traditional districting criteria” aspect of the Miller 
test." As this Court has explained repeatedly, a state's deviation from 
traditional race-neutral districting criteria is imgortant in this context 
only because it may, when coupled with evidence of racial 
demographics, serve as “circumstantial evidence” that “race for its 
own sake, and not other districting principles, was the legislature’s 
dominant and controlling rationale in drawing district lines.” Miller, 
515 U.S. at 913; see id. at 914 (“disclose[s] a racial design’), Bust, 
517 U.S. at 964 (plur. op.) (“correlstions between racic 
demographicsand [irregular] district lines,” if not explained “in terms 
of non-racial motivations,” tend to show “that race predominated ip 
the drawing of district lines”). The notion is that when a state casts 
aside the race-neutral criteria it would normally apply ia districting to 
draw a majority-minority district, it is very likely to have done sp for 
predominantly racial reasons. For this inquiry to serve its purpose, it 
must fecus not on the degree to which the challenged district deviates 
from same setofrace-neutral districting principles that a hypothetical 
state -- or a federal court -- might find appropriate in desi gninga plan, 
but rather on the precise set of race-neutral districting principles that 
the particular state would otherwise apply in designing its districts, 

  

™ Indeed, this misunderstanding of the “traditional race-neutral districting criceria™ 
lo which Miller refers drove the district cou to the otherwise inexplicable 
conclusion that plaintiifs had established -- as a mztter of law -- thal race wzs (1e 
predominant factor in the desigr: of District 12, bat thal they had rot established -- 
as a matter of law -- that #t was the predominant factor in the design of District | 
App. 17a-22a The evidence thal racial consideratiors Fad played a significant role 
wn the line-drawing process sas much stronger with respect to District 1 than to 
District 12, for il was urdisputed that District ] is a majoriy-minosity district 
enacted to avoid a violation of § 2 of the Votirg Rights Act. The cnly conceivable 
explaration for the district coun’s conclusion (hat District 12 was 2 racial 
gerrymander as a matier of law, out District I wes not, was its perception that 
District | was not as “imegular” as Disirict 12 and had bztier “comparative 
compactness indicators” App. i3a-14a. 

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were it not pursuing a covert racial objective. See Quilter v. 
Voinovich, 98) F. Supp. 1032, 1045 5.10 (N.D. Ohio 1997). aff d 
118 S. C1. 1358 (1998) (characterizing the inquiry as “designed to 
identify situations in which states have negjected the criteria they 
would otherwise consider in pursuit of race-based objectives”). 

[n this case, the district court evaluated District 12s compliance 
with traditional race-reutral districting criteria by reference to two 
such criteria that the people of North Carolina have mor required their 
legislature to observe in districting: “geographic compactness” and 
“geographical integrity.” In so doing, tke district court apparently 
relied on this Court's frequent references to compactness as a 
traditional race-neutral districting criteria. See, e.g., Shaw I, 509 U.S. 
al 647; Miller, 515 U.S. at 916; Bush, $17 U.S. at 959-66 (plur. op.). 
But this Court has never indicated that the race-neutral districting 
criteria it has mentioned in its opinions are anything but illustrations. 
See, e.g., Miller, 515 U.S. at 916 (describing “traditional race-neutral 
districting principles” as “including buf not limited to compactness, 
contiguity, and respect for political subdivisions or communities 
defined by actual shared interests”) (emphasis added). Nor has this 
Court ever indicated that a state's deviation from abstract numerical 
measures of compactness has any probative value whatsoever when 
the state in question does nos have a stated goal of drawing compact 
districts ?° 

  

* Indeed, this Court's recent decision in Lawyer suggests precisely the opposite. 
In Lawyer, the plaintiffs presented evidence that the challenged state legisiative 
district encompassed more than one county, crossed a body of water, was irregular 
in shape, and lacked geographic compactness. 117 S. Ct. at 2195. The disirict court 
found this evidence insufiicient to esablish that raditional districiing principles bad 
bezn subordinated © race in the districl’s design, because these were all “common 
characteristics of Florida legislative districts, being produds of tke State's 
geography and the fact that 40 Senate districts are superimposed on 67 counties.” 
ld. (emphasis added). This Court upheld that finéing, on the ground that the 
“unrefuted ev.deice shows] that on each of these points Disuict 21 is no different 

  

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The district court’s decision effectively requires all states with 
racially-mixed populations to com ply with “objective” standards of 
geographic compaciness in drawing their congressional and 
legislative districts. Such a requirement is flatly inconsistent witk this 
Coun’s repeated statements that geographic compactness is not a 
constitutionally-inandated districting principle. See Bush, 5: 7US. at 
962 (plur. op.); Shaw, S09 U.S. at 647. It also conflicts direct ly with 
this Court’s long-standing recognition that the Constitution accords 
the states wide-ranging discretion to design their congressional and 
legislative districts as they see fit, so long as they remain within 
constitutional bounds. See Quilter, S07 U.S. 156; Wise v. Lipscomb, 
437 U.S. 535. 539 (1978). Surely this means that the states are 
enlitied todecide which particularrace-neutral districting criteria they 
will emphasize in drawing their districts, without worrying that strict 
scrutiny will apply if a federal judge disagrees with their choices.’ 

Second, the district court’s decision conflicts directly with this 
Court’s decision in Bush. There, a majority of this Court made clear 
that a district is not subject to strict scrutiny simply because there is 
some correlation between its lines and racial demographics if the 
cvidence establishes that those lines were in fact drawn on the basis 
of political voting preference, rather than race. 517 U.S. at 968 (plur. 

op.) (“If district lines merely correlate with race because they are 
drawn on the basis of political affiliation, which correlates with nce, 
there is no racial classification to justify”); see id. at 1027-32 
(Stevens, J., joined by Ginsburg and Breyer, JJ., dissenting); id. at 

  

frore wha: Florida's waditiond diswicting principles could be expected to produce. 

Id. (erophasis added). 

n This is not to suggest, of course, that a stzte could avoid the drict scrutiny of 
Shave an Millzr simply by choosing to establish “mininal or vague criteria (or 
perhaps none at all)” so that “i could never be found io have neglected or 
ssbordinated those criteria to race.” Quilier. 98) F. Supp. at (081 n.10. Bu: that is 

nol what happencd hzre 

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060-61 (Souter, J.. joined by Ginsburg and Breyer, JJ., dissenting). 

Contrary to the district court's suggestion, this is not a situation like 

that in Bush, where the state has used race as a proxy for political 

characteristics in its political gerrymandering. Instead, the undisputed 

evidence in the summary judgment record showed that the State used 

political characteristics themselves, not racial data, to draw the lines. 

The legislature’s use of such political data to accomplish otherwise 

legitimate political gerrymandering will not subject the resulting 

district to strict scrutiny, “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.” 7d. at 968 (pluc. op.), see id. at 1027-32 

(Stevens, J., joined by Ginsburg and Breyer, J)., dissenting); id. at 

1060-61 (Souter, J., joined by Ginsburg and Breyer, JJ., dissenting). 
Third, the district court’s decision raises substantial, unresolved 

questions conceming the circumstances under which a plaintiff can 

satisfy the threshold test for strict scrutiny based solely on an 

inference drawn from a district’s shape and racial demographics. 

Miller held that a plaintiff can prove the legislature’s predominantly 

racial motive with either “circumstantial evidence of a district’s shape 

and demographics or more direct evidence going to legislative 

purpose.” 515 U.S. at 916. In all of its prior cases finding the 

threshold test for strict scrutiny met, however, this Court has relied 

heavily on substantial direct evidence of legislative motivation. See 

id. at 918 (relying on the State's § S submissions, the testimony of the 

individual state officials who drew the plan, and the State’s formal 

concession that it had deliberately set out to create majorsity-mirority 

districts in order to comply with the Department of Justice's “black 

maximization” policy); Bush, 317 U.S. at 959-61, 969-71 (plur. op.) 

(same); id. at 1002 & n.2 (Thomas, J., concurring in the judgment) 

(same), Shaw I7, 517 U.S. at 906 (same). As a result, this Court has 

never confronted the question of how much circumstantial evidence 

is enough to satisfy the Miller predominance standard, in the absence 

  

{ 

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27 

of any direct evidence of racial motivation. See Miller, 5135 U.S. at 

917 (specifically reserving this issue). 
The plaintiffs in this case, unlike those in Miller, Bush, and Shaw 

/1, base their claim that race was the predominant factor in the design 

of Districts 12 solely on circumstantial evidence of shape and racial 

demographics. Yet their circumstantial evidence is decidedly less 

powerful than that presented by their counterparts in Miller, Bush, 

and Shaw 17. First, and most fundamentally, the district they challenge 

is not a majority-minority disirict, as were the districts at issue in 

those cases. This Court’s recent decision in Lawyer, which rejected 

z claim that a challenged Florida state senate district was a racial 

gemrymander, inakes clear that this is an important distinction. 117 S. 

Ct. at 2191, 2195 (emphasizing that the challenged district was not 

majority-black and noting that “similar racial composition of different 

political districts” is not “necessary to avoid an inference of racial 

gemymandering in any one of them.”). In addition, the shape of the 

district challenged here, though somewhat irregular, does not reveal 

“substantial” disregard for tradilional race-neutral districting 

principles? Finally, the undisputed evidence here established that the 

racial data the legislature used in designing these districts was no 

more detailed than the other demcgraphic data it used. Compare 

Bush, 517 U.S. at 962-67, 969-71, 975-76 (plur. op.) (finding 

  

"2 In sharp contrast 10 former District 12, which this Court invalidated in Shaw I, 

current Distiict 12 is contiguous, respects the integrity of political subdivisions to 

the exienl reasonably possible, and creates a community of interest defiacd by 

criteria other than race. While i hes relatively low dispersion and perireter 

compaciness measures, this is insufficient to support a finding that the legislature 

“substantially” disregarded tadilional districting ctiteria in designing it, even if 

geographic oympactness can be considered one of the State's “wraditional districting 

criteria” See Quilter, 981 F. Supp. 2 1048 (expressing “doubt” that a siate’s aeglect 

of ore of its many traditional districting criteria “would te sufficient to show the 

kind of flzgrant disregard thal would indicate that traditional districting principles 

were svberdinaied to racial objectives™). 

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legislature's use of racial data that was significantly more detailed 
than its data on other voter demographics strong circumstantial 
evidence that race had been its predominant consideration in 
designing the challenged districts). 

On this record, there is a substantial question whether plaintiffs’ 
evidence of shape and racial demographics is sufficient to support an 
inference that race was the predominant factor in the design of 
District 12. Indeed, the evidence of shape and demographics here 
closely resembles (ht offered by the plaintiffs in Lawyer, which this 
Court found insufficient to support an inference of racial 
gerrymandering. See 117 S. Ct. at 2195. In addition, the state 
defendants rebutted any such inference with substantial direct 
evidence that partisan political preference, and not race, had been the 
predominant factor in the district’s design. Under this Court’s 
decisions, that should have been sufficient to avoid strict scrutiny, in 

the absence of any direct evidence of racial motivation. See Shaw I, 

509 U.S. at 653, 658 (indicating that State can avoid strict scrutiny by 

“contradicting” the inference of racial motivation that arises from 

plaintiffs’ evidence of shape and racial demographics); Miller, 51% 

U.S. at 916 (strict scrutiny does not apply where the state establishes 
that “race-neutral considerations are the basis for redistricting 

legislation, and are not subordinated to race”)? 
Finally, the district couri’s decision sets far too Jow a threshold 

for subjecting a state’s districting efforts to strict -- and potentially 
fatal -- constitutional review. Under its reasoning, a private plantiff 
can firigger strict scrutiny of a state redistricting plan simply by 

  

In an analogous “mixed motives” situation — the individual disparate treatment 
case under Title VII -- fou: members of this Coun have endorsed a rule that would 
require plaintiff to produce “direct evidzance” that the impe:missible criterion was 
a stbsianiial motivating factor in (he challenged decision in order to prevail. Price 
Waterhouse v. Hopkins, 490 US. 228, 275-76 (1989) (O'Connay, J., concurring), 
299 (Kennedy, J.. joined by Renquist, C.J. and Scalia, J.. dissenting). 

   



2% 

showing that its districts are somewhat irregular in shape and that 
some of them have heavier concentrations of minorizy voters than 

others. If strict scrutiny is this easily triggered, the states, particularly 
those subject to the preclearance requirements in § 5 of the Voting 
Rights Act, will find themselves in an impossible bind. If they take 
race into account in districting, in order to avoid violating the Voting 

Rights Act, they face private lawsuils under the Equal Protection 

Clause; but if they donot, they face both denial of preclearance under 

3 $ of the Voting Right Act and private lawsuits under § 2. See Bush 

517 U.S. at 990-95 (O'Connor, J., concurring) (noting the tension 

between the Voting Rights Act, which requires the states to consider 

race in districting, and the Fourteenth Amendment, which requires 

courts “to look with suspicion on the|ir] excessive use of racial 

considerations”). Nearly every plan they draw will be subject to 

challenge on one ground or the other, nearly every plan will be the 

subject of protracted litigation in the federal courts, and the federal 

courts will become the principal architects of their congressional and 

legislative districting plans. This Court should not tolerate such an 

unprecedented intrusion by the federal judiciary into this “most vital” 

aspect of state sovereignty. Miller, 515 U.S. a1915. 
The district court's extreme misapplication of the threshold test 

for strict scrutiny illustrates the need for this Court to provide 

additional guidance on its proper application in cases where there is 

no direct evidence of racial motivation, the district in question is not 

a majoriy-minority district, and it does not disregard the State’s stated 

racc-neutral districting criteria. This situation will arise with some 

frequency in the next round of Shaw cases, particularly in states like 

North Carolina, which remain subject to a realistic threat of liabilily 

under § 2 of the Yoting Rights Act if they do not pay close attention 

to racial fairness in districting. As Justice O’Connor recognized in 

Bush, these states -- and the lower courts -- are entitled fo “more 

definite guidance asthey toil with the twin demands of the Fourteenth 

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Amendment and the VRA.” S517 U.S. at 990 (O’Connor, J., 

concurring). 

CONCLUSION 

For the forgoing reasons, this Court should summarily reverse the 

April 6, 1998 judgment of the district court and remand the case for 

trial. In the altemative, this Court shculd note probable jurisdiction of 

oN this appeal. 

™ 
N Respectfully submitted, 

«wo 

oS MICHAEL F. EASLEY 
FN North Carolina Attomey General 

Hl 
oc Edwin M. Speas, Jr.* 
<TC Chief Deputy Attorney General 

Tiare B. Smiley 
Special Deputy Attorney General 

Melissa L. Saunders 
Special Counsel to the Altorney General 

= 
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= July 6, 1998 *Counsel of Record 
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APPENDIX 

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