Motion of the United States as Amicus Curiae for Divided Argument and to Participate in Oral Argument

    UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF NORTH CAROLINA __, . 

RALEIGH DIVISION 3 
CIVIL ACTION NO. 4:96-CV-104 

MARTIN CROMARTIE, et al., 

Plaintiffs, 

DEFENDANT-INTERVENOR’S 

MEMORANDUM IN OPPOSITION TO 

PLAINTIFFS’ MOTION FOR 

SUMMARY JUDGMENT 

v. 

JAMES B. HUNT, JR., et al., 

Defendants 

and 

ALFRED SMALLWOOD, et al., 

Applicants to Intervene as 

Defendants. 

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STATEMENT OF CASE 

Three residents of Tarboro, North Carolina originally filed the complaint in this action on 

July 3, 1996 challenging District 1 in North Carolina's 1992 Congressional Redistricting Plan on 

the ground that it violated their equal protection rights because race predominated in the drawing of 

the district. Five voters in the First Congressional District filed a motion to intervene as defendants. 

That motion was never ruled on. Following a hearing on an Order to Show Cause, the action was 

stayed pending resolution of remand proceedings in Shaw v. Hunt. 517 U.S. ___, 116 S.Ct. 1894. 

135 L.Ed.2d 207 (1996). On July 9, 1996 the same three Tarboro residents joined the previous 

plaintiffs in Shaw in filing an Amended Complaint in that case. similarly challenging the First 

Congressional District. 

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



od * 
redistricting plan enacted on March 31. 1997 by the General Assembly as a remedy for the 

constitutional violation found in Shaw to exist in District 12. and dismissed plaintiffs’ claim that 

District 1 in the 1992 plan was unconstitutional as moot. without prejudice. 

On October 16. 1997, two of the original three plaintiffs, along with four residents of District 

12, filed an amended complaint in this action challenging the 1997 remedial congressional 

redistricting plan, as well as seeking a declaration that District 1 in the 1992 plan is unconstitutional. 

Within the time allowed for answering the amended complaint (the defendants having obtained an 

enlargement of time), three voters from the First District and six voters from the Twelfth District 

filed a renewed motion to intervene as defendants. To date, there has been no ruling on this motion. 

The plaintiffs have filed a motion for summary judgment and a motion for a preliminary 

injunction. The defendants have indicated their intention to file a cross-motion for summary 

judgment. A hearing in this matter is set for March 16. 1998. 

STATEMENT OF FACTS 

For nine decades. from 1901 until 1992, African-American voters in North Carolina were 

unable to elect a candidate of their choice to Congress. Their disenfranchisement was the result of 

conscious, deliberate and calculated state laws that both denied black voters access to the ballot box 

and effectively diluted their votes. See Gingles v. Edmisten, 590 F. Supp. 345, 359 (1984). Poll 

taxes, literacy tests. anti-single shot voting laws, at-large and multi-member election districts were 

all measures employed. particularly in the eastern part of the state. Id, See also. North Carolina's 

Section 5 Submission, 1997 Congressional Redistricting Plan, submitted to the U.S. Department of 

Justice, April 7, 1997, consisiting of 5 volumes presented to the Court under the Affidavit of Gary 

O. Bartlett, by Defendants with their response to the summary judgment motion, [hereinafter “1997 

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Submission” ]. Report of Morgan Kousser at Attachment 97C-28F-3B: Affidavit of David Goldfield. 

submitted by Defendants. Specifically with regard to congressional districts. in the 1970 and 1980 

redistricting plans. the General Assembly state intentionally fragmented the black vote in the 

northeastern portion of the state to make sure black voters could not garner enough support to elect 

their candidate to Congress. 1997 Submission, Report of Morgan Kousser. Racial appeals in 

campaigns were used by white candidatesto dissuade white voters from supporting black candidates. 

1997 Submission, Report of H. Watson. 

The ability of black voters to participate in congressional elections has continued. to this day, 

to be hindered by the continuing effects of past official discrimination. For example, the legacy of 

literacy tests. in use until the mid-1970's, and poll taxes continues to be reflected in the fact that 

black voters are registered to vote in lower percentages than white voters. In 1960, statewide only 

39.1% of the black voting age population was registered to vote, compared to 92.1% of the white 

voting age population. Gingles. 390 F. Supp. at 360. In the majority-black counties, all located in 

eastern North Carolina. fewer than 20 percent of the black population was registered to vote in 1960. 

Affidavit of David Goldfield at 5. By 1980, statewide 51.3% of age-qualified blacks and 70.1% of 

whites were registered. Gingles. 590 F. Supp. at 360. In 1993. 61.3% of blacks and 72.5% of whites 

who were eligible to vote were registered. 1997 Submission, Attachment 97C-28F-3B, Defendant- 

Intervenors Stipulation. No. 63. 

Elections in North Carolina in the 1990's unfortunately continue to be marred by direct 

appeals to race designed to discourage white voters from voting for black candidates. Willingham 

report. In addition, in 1990. large numbers of qualified black voters were anonymously sent post 

cards which misrepresented state law and threatened them with criminal prosecution if they tried to 

Fe 

 



vote after having recently moved. 1997 Submission. Attachment 97C-28F-3B, exhibits 525-531. 

Black voters as a whole are less well-educated. lower-paid. more likely to be in poverty, and have 

less access to basic instruments of political participation such as telephones and cars, than do their 

white counterparts, adversely affecting their ability to elect candidates of their choice. 1997 

Submission, Attachment 97C-28F-3b, Defendant-Intervenor Stipulations. 

It remains true that, in this century. no black candidate other than Ralph Campbell, State 

Auditor, has ever won a statewide election contest for a non-judicial office. No black candidate has 

won election in a majority-white congressional district, even though strong candidates repeatedly 

sought election in the 1980's in the Second Congressional District which was over 40% black. 1997 

Submission. Attachment 97C-28F-3B. Statement of M. Michaux. Majority-minority election 

districts for the state legislature have proven to be opportunity districts for white candidates as well. 

White candidates have repeatedly been elected in state house and senate districts that are majority- 

black. 1997 Submission. Attachment 97C-28F-3B. Stipulation Exhibit 34 at 25. No single-member 

majority-white state legislative district has elected a black candidate to the state legislature. 1997 

Submission. Attachment 97C-28F-3B, Stipulations 13, 18. 

In North Carolina elections, white voters decline to vote for black candidates in numbers 

sufficient to keep the black candidate from winning. A study of 50 recent elections in which voters 

have been presented with a choice between African-American and white candidates. including 

congressional elections. statewide elections and state legislative elections, found that 49 of the 50 

were characterized by racially polarized voting. 1997 Submission. Attachment 97C-28F -3B, Report 

of R. Engstrom. In every statewide election since 1988 where voters were presented with a biracial 

field of candidates. the voting patterns indicated significant racially polarized voting. Id. In all 

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except two low-profile contests. racially polarized voting was sufficient to defeat the candidate 

chosen by black voters. 

Patterns of racially polarized voting continued in the 1996 senate campaign between Harvey 

Gantt and Jesse Helms. The regression and homogeneous precinct analyses show that statewide, 

Gantt received between 97.9 and 100% of the African-American vote, and between 35.7 to 38.1% 

of the non-African-American vote. 1997 Submission, Attachment 97C-28F-3B, Engstrom Letter 

dated Feb. 7, 1997. The same election shows that white bloc voting was greater in the northeast 

region of the state. Looking at the counties which were included in District 1 of the 1997 remedy 

plan, it appears that the vote in this area is more racially divided than the in state as a whole. Mr. 

Gantt received from 96.6% to 100% of the black vote, and only 24.9 to 29% of the white vote. Id 

All of this information about the historical exclusion of black voters. the continuing use of 

racial appeals. the socio-economic disparities affecting black voters’ opportunities to participate in 

the election process, and lack of success of black candidates, and the continuing prevalence of 

racially polarized voting was provided to the General Assembly before it passed the 1997 remedy 

plan on March 31%, including the most recent analyses of polarized voting that identified the level 

of racially polarized voting in northeastern North Carolina. See cite to submission. In crafting a 

remedial plan, the North Carolina General Assembly was aware of the potential that the failure to 

draw a majority-black district in the northeastern region of the state might subject them to liability 

under Section 2 of the Voting Rights Act. 

The initial congressional redistricting plan passed by the General Assembly in 1991 

contained one majority-black district in the northeast which was 55.69% black in total population 

and 52.18% black in voting age population. 1997 Submission. Attachment 97C-28F-3B. Stipulation 

3 

 



Exhibit 10. The 1992 plan contained two majority-black districts, while the 1997 remedy plan has 

just one. The First and Twelfth Districts in those plans have the following populations: 

  

1992 Dist. 1 1997 Dist. 1 1992 Dist. 12 1997 Dist. 12 
  
Total Black 57.26% 50.27% 56.63% 46.67% 
  
Total White 41.61% 48.62% 41.80% 51.59% 
  
Vot. Age Black 53.40% 46.54% 53.34% 43.36% 
  

52.42% 45.21% 55.05%             Vot. Age White 45.49% 

Source: Attachment 97C-27A-1; Stipulation Exhibit 10. 
  

The 1997 remedial plan has just one majority black district, which is only 50.27% black in total 

population. This is seven percentage points lower in black population than the 1992 plan, and over 

five percentage points lower than the original 1991 congressional redistricting plan. District 12 in 

the remedial plan is no longer a majority-black district. The black population in District 12 is ten 

percentage points lower than it was in the 1992 plan. 

In 1997, the General Assembly had two primary redistricting goals: to remedy the 

constitutional defects in the 1992 plan, including the predominance of racial considerations in the 

shape and location of District 12. and the potential constitutional defects in District 1 in the 1992 

plan. 1997 Submission. Vol. I. Commentary at 9. This goal was accomplished by emphasizing a 

variety of redistricting principles. including: 

I; Avoiding dividing precincts entirely and counties to the extent possible; 

Avoiding using narrow corridors to connect concentrations of minority voters; 

Striving for geographical compactness: 

Pursuing functional compactness by grouping together citizens with similar interests 

and needs:  



  

5. Seeking districts that allow good communication among voters and their 

representatives. 

The second primary goal was to preserve the even six and six partisan balance in North 

Carolina’s current congressional delegation. /d. This partisan balance reflects the existing balance 

between Democrats and Republicans in the state. In addition, with the State House controlled by 

Republicans and the State Senate controlled by Democrats, the only plan the General Assembly 

would be able to agree on is one that did not improve either party’s electoral chances over the status 

quo. The General Assembly felt, as a matter of policy. that the legislature was more suited to 

accomplishing the multi-factored balancing that is required to meet the needs of voters in very 

different regions of the state in a redistricting plan. rather than leaving the task to the Court. Thus, 

preservation of the existing partisan balance became a driving force in locating and shaping the 

congressional districts. An entirely new configuration would not have been politically acceptable. 

During the 1997 redistricting process. the General Assembly rejected plans that would have 

created a second majority-minority district in the area eastward of Charlotte to Cumberland and 

Robeson Counties on the ground that such a district would have combined urban and rural voters 

with disparate and divergent economic. social and cultural interests and needs. In addition, that 

district would have thwarted the goal of maintaining partisan balance in the state’s congressional 

delegation. 1997 Submission. Vol. I, Commentaryat 10. Several groups and individuals, including 

the North Carolina Association of Black Lawyers and State Representative Mickey Michaux, 

objected to the 1997 remedial plan because, in their view, it dilutes the vote of African-American 

voters in certain areas of the state and “deliberately separates large politically cohesive African- 

American communities.” See Shaw v. Hunt, No. 92-202-CIV-5, Memorandum in Support of Motion 

5 

 



to Intervene, filed April 15, 1997. The plan favored by these groups also would have combined the 

African-American voters in Charlotte with minority voters, including African-Americans and 

Native-Americans. in the rural areas southeast of Charlotte. 

The court in Shaw v. Hunt approved the General Assembly's 1997 remedial plan as “having 

adequately remedied the specific constitutional violation respecting former congressional District 

12 that was found by the Supreme Court of the United States in Shaw v. Hunt, 116 S. Ct. 1894 

(1996).” Shaw v. Hunt, No. 92-202-CIV-5, Order filed September 12, 1997. 

ARGUMENT 

Standard for Granting Summary Judgment 

The governing standards for determining whether summary judgment is appropriate were 

most recently summarized by the Fourth Circuit as follows: 

Summary judgments are appropriate in those cases where there is no genuine dispute 
as to a material fact and it appears that the moving party is entitled to a judgment as 
a matter of law. Fed. R. Civ. P. 56(¢c): Adickes v. S.H. Kress & Co., 398 U.S. 144, 
157 (1970). On summary judgment. any permissible inferences to be drawn from the 
underlying facts must be viewed in the light most favorable to the party opposing the 
motion. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587- 
88 (1986). However, where the record taken as a whole could not lead a rational trier 
of fact to find for the non-moving party. disposition by summary judgment is 
appropriate. Id. at 587; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 
(1986). 

United States v. National Financial Services, Inc., 98 F.3d 131, 135 (4" Cir. 1996). 

Summary of Argument 

The plaintiffs have moved for summary judgment on two separate grounds. First, they argue 

that the 1997 remedial congressional redistricting plan is “fruit of the poisonous tree” and therefore 

unconstitutional. Second. they argue that race predominated in the drawing of Districts 1 and 12 in  



the 1997 remedial plan and that these districts do not satisfy strict scrutiny. Plaintiffs first theory 

is a completely novel. and unworkable. proposition that has never been followed by any court that 

has examined what standards apply when a jurisdiction is remedying a voting rights violation. 

Plaintiffs second theory is without factual support. For these reasons, defendants’ cross-motion for 

summary judgment should be granted. 

THE STATE LEGISLATURE IS NOT REQUIRED TO COMPLETELY 
REDESIGN CONGRESSIONAL DISTRICTS IN ORDER TO REMEDY A 
SHAW VIOLATION 

Plaintiffs contend that the new North Carolina congressional redistricting plan should be 

declared unconstitutional because it is fruit of the poisonous tree of the prior redistricting plan held 

to be unconstitutional. Essentially, plaintiffs would have this Court hold that if a state does not 

completely discard the original challenged plan before developing its new remedial redistricting 

plan, that new plan should be held unconstitutional. Plaintiffs’ argument reflects a misunderstanding 

of the current state of voting rights law and an unrealistic view of the redistricting process. during 

which the state must engage in a complex balancing of many competing interests. 

When curing a violation. states have a legitimate interest in minimizing the disruption of its 

political process, for example. by ensuring that prior partisan balances are maintained and the 

surrounding districts are preserved to the extent possible. Courts have recognized the necessity of 

jurisdictions considering these issues. giving states deference in the redistricting process, see Miller 

v. Johnson, 515 U.S. 900, 115 S.Ct. 2475, 2488, 132 L.Ed.2d 762 (1995); Scott v. United States. 

920 F. Supp. 1248. 1255 (M.D. Fla. 1996). White v. Weiser, 412 U.S. 783, 794-95 (1973), and 

granting states the first opportunity to propose a remedial plan after a voting rights violation is 

9  



found. McDanielv. Sanchez. 452 U.S. 130.150 0.30 (1981). These rulings reflect an understanding 

and endorsement of the delicate balance between these competing interests which states must strike 

in drawing redistricting plans. 

Plaintiffs would put the state in the untenable position of completely disregarding the 

complexity of the redistricting process in the course of curing a constitutional violation. Given the 

realities of the redistricting process. plaintiffs’ approach makes little real-world sense, as the 

construction of a district typically does not occur by the state considering isolated, unrelated factors. 

The creator of a plan which cures a defect with one district. considering a mass of political, 

geographic, and demographic data and a mix of redistricting policies, does not make redistricting 

decisions without regard to the effect on the overall profile of the plan. The reasons for each 

redistricting decision cannot fairly be evaluated in isolation. Thus, in the development of remedial 

plans, states routinely and legitimately take into account the effect of making any changes to the 

original plan. as this could impact the opportunity to maintain prior political balances. In the course 

of curing a constitutional violation. it would, therefore. be entirely realistic for a state to seek to 

make the least alterations possible to a plan. if doing so would assist in meeting its other redistricting 

goals. Plaintiffs’ argument would seriously impact the settlement and remedial process in voting 

rights cases. as the state could not development plans which both cure statutory and Constitutional 

objections while also taking into consideration the state's legitimate political interests. 

In essence. plaintiffs’ argument is an attempt to mask their primary objection to the 1996 

plan: the fact that the remedial plan maintains two districts with substantial black populations. For 

plaintiffs, it is constitutionally fatal for a plan designed to remedy a finding of unconstitutionality 

to also create such districts. This standard, however. is incompatible with the holdings of the 

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Supreme Court and several lower courts. 

Defendants’ argument finds support in neither Shaw nor its progeny. The Supreme Court 

has not absolved states from their responsibilitiesto comply with Section 2 of the Voting Rights Act, 

neither overruling Gingles nor declaring the application of Gingles' Section 2 analysis 

unconstitutional. Indeed, plaintiffs’ implication that the intentional creation of majority-minority 

districts is inherently unconstitutional conflicts with Shaw v. Hom, 517.08. 116 S.Ct 1894, 

135 L.Ed.2d 207 (1996); Miller v. Johnson, supra, Bushv. Vera, 517U.S. __ ,116S.Ct. 1941, 135 

L.Ed.2d 248 (1996), Abrams v. Johnson, 521 U.S. 117 S.Ct. 1925, 138 L.Ed.2d 285 (1997) and 

Lawyer v. United States, 521 U.S. __ , 117 S.Ct. _», 138 L.Ed.2d 669 (1997). Shaw "expressed 

no view as to whether the intentional creation of majority-minority districts, without more, always 

gives rise to an equal protection claim." Shaw. 113 S. Ct. at 2828. In Miller, the Supreme Court 

ruled that race-consciousness in drawing district lines would not alone render a districting plan 

presumptively unconstitutional. Miller, 115 S. Ct. at 2488. As the Supreme Court stated in Vera. 

"Strict scrutiny does not apply merely because redistricting is performed with consciousness of 

race....Nor does it apply to all cases of intentional creation of majority-minoritydistricts." Vera, 135 

L.Ed.2d at 257 (citations omitted). This point is further emphasized by Justice O'Connor in her 

concurrence in Fera in which she made it clear that nothing in Shaw and its progeny should be 

interpreted as calling into question the continued importance of complying with Section 2 of the 

Voting Rights Act. As Justice O'Connor stated: 

The results test of §2 is an important part of the apparatus chosen by 
Congress to effectuate this Nation's commitment to confront its 
conscience and fulfill the guarantee of the Constitution’ with respect 
to equality in voting. S. Rep. No. 97-417, p. 4 (1982). 

11 

 



135 L.Ed.2d at 297. Justice O'Connor therefore concluded that states have a compelling interest in 

complying with Section 2 of the Voting Rights Act and. more specifically. complying with "the 

results test as this Court has interpreted it." Id. Justice O'Connor went on to find that Texas had a 

strong basis to believe that a majority-minority district should be drawn in Dallas, because voting 

was racially polarized and it was possible to draw a reasonably compact district with substantial 

African American populations. Jd. at 281. Justice O'Connor's opinion on this issue is particularly 

significant because four other members of the Court, who dissented from the rulings striking down 

the North Carolina and Texas plans. clearly agree that states have a compelling interest in avoiding 

minority vote dilution and complying with Section 2 of the Voting Rights Act. Bush v. Vera, 135 

L.Ed.2d at 307 (Stevens. J., joined by Ginsburg and Breyer, JJ.. dissenting); id. at 328 (Souter. J.. 

joined by Ginsburg and Breyer, JJ. dissenting). Thus, Justice O'Connor's opinion confirms that 

reasonably compact majority-black districts are permissible even under the Court's new Fourteenth 

Amendment doctrine. and that states continue to have a compelling interest in complying with 

Section 2 of the Voting Rights Act. 

Far from calling into question Section 2's constitutionality, the Supreme Court summarily 

affirmed the decision of a three-j udge district court in California which upheld the deliberate creation 

of majority-minority districts which were desi gned to comply with the Voting Rights Act. DeWirr. 

856 F. Supp.1409, 1415 (E.D.Cal. 1994). The DeWitt decision holds that the intentional creation 

of majority-minoritydistricts does not violate the Constitution when the redistricting plan "evidences 

a judicious and proper balancing of the many factors appropriate to redistricting, one of which was 

the consideration of the application of the Voting Rights Act's objective of assuring that minority 

voters are not denied the chance to effectively influence the political process." DeWitt, 856 F. Supp. 

12 
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at 1413-14." This is further corroborated by the Supreme Court's most recent decision upholding 

the constitutionality of a Florida majority-minority district drawn with race as a factor, even though 

it was some what irregularly shaped and split county and city boundaries. Lawyer v. United States. 

521 U.S. ,117S.Ct. __, 138 L.Ed.2d 669 (1997). The creation of remedies to comply with 

Section 2 of the Voting Rights Act are not per se unconstitutional. See Bush v. Vera, 135 L.Ed.2d 

at 279; Clark v. Calhoun County, 88 F.3d 1393, 1407 (5th Cir. 1996) (the Supreme Court in its 

recent decisions did not alter the Gingles proof. nor did the "Court suggest that a district drawn for 

predominantly racial reasons would necessarily fail the Gingles test."); Cane v. Worcester County. 

35 F.3d 921. 926-27 n.6 (4th Cir. 1994), cert. denied, 115 S. Ct. 3616 (1995)(holding that Shaw is 

not implicated in Section 2 challenge to at-large election scheme where proposed majority-black 

remedial district was comparable to other election districts drawn by the county). 

In view of the affirmances in Lawyer and DeWitt, as well as the Supreme Court's repeated 

assurances that the use of race in drawing districts line does not automatically render those districts 

unconstitutional. and Justice O'Connor's important concurring opinion in Vera, it appears evident 

that states have a compelling justification in complying with Section 2 of the Voting Rights Act. 

Moreover. Shaw and its progeny. support the continued creation of these remedial districts in order 

to comply with the strictures of the Act when redistricting. 

In fact, Lawyer provides an important laboratory for how these considerations should be 

balanced in the context of the creation of remedial plans. It remains the only case considered by the 

  

' A further understanding of the DeWitt decision can be gleaned by reviewing the 

decision of the California Supreme Court which created the redistricting plans challenged in 

DeWitt. See Wilson v. Eu, 823 P.2d 545, 563-564, 582, 583-584, 594 (Cal. 1992) (describing the 

various special efforts taken to create districts which would comply with the Voting Rights Act). 

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Supreme Court in the post-Shaw era involving a legislatively-drawnplan created to remedy alleged 

constitutional violations. In Lawyer, the district court approved a settlement plan which reduced the 

total minority voting age population from the original 55.3 % to 51.2% and is still a bit odd in shape. 

albeit “less strained and irregular.” Scott v. United States, 920 F. Supp. 1248, 1255 (M.D. Fla. 

1996). However, the most important consideration for the district court in determining whether it 

would approve the new boundaries was that the new plan “offers to any candidate, without regard 

to race, the opportunity to seek elective office and both a fair chance to win and the ususal risk of 

defeat...” Id. at 1256. As discussed above, the Supreme Court upheld this settlement, finding that, 

while race was a factor. the district did not subordinate Florida's traditional redistricting criteria. 

As this Court should in this case. the district court and Supreme Court in Scott and Lawyer 

reached these conclusions irrespective of how the original District 21 was created or its alleged 

constitutional infirmities. The courts also reached their conclusions despite the fact that the remedial 

plan used the original 1992 redistricting plan as a starting point. In these cases. the courts attached 

no taint to the Florida's remedial plan, simply because the challenged plan was used as a base. After 

the passage of the three years between the creation of the original plan in 1992 creation of the 

remedy in 1995, the courts refused to ignore Florida's legitimate interest in preserving electoral 

stability by avoiding needless disruption of the political relationships that had developed over the 

years where it could do so consistent with sound redistricting principles. 

The plaintiffs’ poisonous tree theory finds no support in cases decided since Shaw v. Reno, 

509U.S.__ ,1138.Ct.2816,125L.Ed.2d 511 (1993), nor in cases that discuss how remedies must 

be fashioned in other voting rights contexts. The general principle in remedying voting rights 

violations is that so long as the state enacts a new plan that remedies the violation and complies with 

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the applicable federal and state constitutional and statutory provisions. it will become the governing 

law. Wise v. Lipscomb, 437 U.S. 535. 540 (1978). “A State's freedom of choice to devise 

substitutes for an apportionment plan found unconstitutional, either as a whole or in part, should not 

be restricted beyond the clear commands of the Equal Protection Clause.” Burns v. Richardson, 384 

U.S. 73, 85 (1966). Indeed. in Shaw v. Hunt. 517 U.S. __.116S.Ct. 1894, 135 L.Ed.2d 207 (1996), 

the Supreme Court reminded us that “states retain broad discretion in drawing districts to comply 

with the mandate of § 2.” Id, 135 L.Ed.2d at 226, n. 9 (citing Voinovich v. Quilter, 507 U.S. 146 

(1993) and Growe v. Emison, 507 U.S. 25 (1993). Where a legislative body does devise a remedial 

plan, the court must “acord great deference to legislative judgments about the exact nature and scope 

of the proposed remedy.” McGhee v. Granville County, 860 F.2d 110, 115 (4™ Cir. 1988), see also 

Tallahassee Branch of NAACP v. Leon County, 827 F.2d 1436, 1440 (112 Cir. 1987). 

An example of the deference federal courts must give to legislative choices in the 

reapportionment arena is found in White v. Weiser. 412 U.S. 783 (1973). There, the Texas 

legislature’s congressional redistricting plan was found to be constitutional invalid because it did not 

satisfy the one-person. one-vote criterion. The court below, in imposing a remedy, had two choices: 

Plan B. which generally followed the redistricting pattern of the original plan but made small 

adjustments in order to lower the variances between district populations; and Plan C, which 

substantially disregarded the configurationsof the districts in the original plan. Plan C was regarded 

by the lower court as being more compact and continguous than the other plans. In addition. 

however, Plan C also had a very different partisan political impact. The court below ordered Plan 

Cas aremedy. The Supreme Court reversed, holding that the court below should not have imposed 

Plan C, with its very different political impact. The Court explained that: 

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Just as a federal district court, in the context of legislative reapportionment, should 
follow the policies and preferences of the State, as expressed in statutory and 
constitutional provisions or in the reapportionment plans proposed by the state 

legislature. whenever adherence to state policy does not detract from the 

requirements of the Federal Constitution, we hold that a district court should 

similarly honor state policies in the context of congressional reapportionment. ... The 

remedial powers of an equity court must be adequate to the task, but they are not 

unlimited. Here the District Court erred in so broadly brushing aside state 

apportionment policy without solid constitutional or equitable grounds for doing so. 

White v. Weiser. 412 U.S. at 795-96. The court in Shaw v. Hunt was bound to approve the 

legislature’s remedial congressional redistricting plan, to the extent that it did not violate any federal 

constitutional or statutory requirements. This court must do the same. 

The reasons for deference to state legislative choices are well-grounded in constitutional law. 

“Principles of federalism and separation of powers impose stringent limitations on the equitable 

power of federal courts.” Lewis v. Casey. 518 U.S. , 116 S.Ct. __, 135 L.Ed.2d 606,639-40 

(1996) (Thomas. J.. concurring). “The power of the federal courts to restructure the operation of local 

and state governmental entities is not plenary. It may be exercised only on the basis of a 

constitutional violation.” Dayton Bd. Of Educ. v. Brinkman, 433 U.S. 406, 419-20 (1977); see 

Freeemanv. Pitts, 503 U.S. 467, 489 (1992); Rizzo v. Goode, 423 U.S. 362, 377 (1976); Milliken v. 

Bradley, 418 U.S. 717,738 (1974). Once a discrete constitutional violation is found. a federal court 

is required to tailor the nature and scope of the remedy to fit the nature and extent of the violatio. See 

United States v. Virginia. 518 U.S. ,116S.Ct. __ , 135 L.Ed.2d 735 (1996); Lewis, 135 L.Ed.2d 

at 621 (majority opinion): Missouri v. Jenkins, 515 U.S. , 115 S.Ct. 2038, 2049, 132 L.Ed.2d 63 

(1995). The remedial decree therefore must directly address and relate to “the condition alleged to 

offend the constitution.” Shaw, 135 L.Ed.2d at 225 (quoting Missouri v. Jenkins, 115 S.Ct. At 2049). 

The Supreme Court has steadfastly refused to give the lower “federal courts a blank check to impose 

16 

 



unlimited remedies upon a constitutional violator.” Jenkins. 115 S.Ct. at 2058 (O’Connor, J. 

concurring). 

Furthermore, “the federal courts in revising a remedy must take into account the interests of 

state and local authorities in managing their own affairs, consistent with the Constitution.” Milliken 

v. Bradley, 433 U.S. 267, 280-81 (1977); accord Jenkins, 115 S.Ct. at 2049; Freeman, 503 U.S. at 

489. The general principles of judicial restraint. equity, and federalism apply with particular force 

when federal courts invalidate state redistricting plans. The Constitution allocates to the State the 

primary responsibility for reapportionment. U.S. Const, art. I, § 2,cl. 1;id § 4, cl. 1; see Growe 

v. Emison, 507 U.S. 25, 34 (1993); Reynolds v. Sims, 377 U.S. 533, 586 (1964). A plan enacted by 

the state legislature is “likely to reflect a States political policy and the will of its people more 

accurately than a decision by unelected federal judges.” Connor v. Finch, 431 U.S. 407,431 (1977) 

(dissenting opinion) (citing Chapman v. Meier, 420 U.S. 1 (1975)). “The federal courts are bound 

to respect the State's apportionment choices unless those choices contravene federal requirements.” 

Voinovich, 507 U.S. at 156. 

Given the complexity of drawing redistricting plans and the deference properly accorded state 

officials in that process, states should be given some latitude to balance the necessary redistricting 

factors — political, Constitutional and compliance with the Voting Rights Act — in attempting to 

arrive at a compromise. remedial plan. States should be given this flexibility, as it represents the 

exercise of the states responsibility and role in redistricting and the operation of the states’s 

democratic process. Federal courts have been and should be loath to usurp the state’s role in the 

redistricting process. 

The plaintiffs’ poisonous tree theory would require a state remedying a Shaw violation to do 

17  



substantially more than correct the unconstitutional district. Plaintiffs seek to impose a requirement 

that the legislature substantially change all of the state's congressional districts and completely 

redraw the entire plan. A court does not have this remedial power, and the plaintiffs in this case do 

not have a constitutional right to dictate the state's redistricting priorities beyond what is required 

to eliminate the equal protection violation they have demonstrated. 

II THE CONSTITUTIONALITY OF THE FIRST CONGRESSIONAL 
DISTRICT IN THE 1992 PLAN IS A MOOT ISSUE 

Plaintiffs contend that this court must issue a declaratory judgment that the First 

Congressional District in the 1992 plan is unconstitutional because it bears a relationship to the new 

First District in the 1997 remedy plan. The question of whether race predominated in the drawing 

of District 1 in the 1992 redistricting plan remains a moot issue. It became moot when the district 

was redrawn. and since the state is not intending to elect a congressional representative from that 

district. there is no case or controversy requiring a decision on that issue. See Shaw v. Hunt. No. 92- 

202-CIV-5, Memorandum Opinion filed September 12, 1997 at 6. 

There is nothing different in plaintiffs’ claim about the 1992 First Congressional District in 

this case from what was true when the three-judge panel in Shaw determined that the enactment of 

the 1997 remedy plan made this claim moot. There is no reason for this court to review and issue 

a declaratory judgment one way or the other about a congressional district that is no longer in use. 

I11 RACE DID NOT PREDOMINATE IN THE 1997 REMEDIAL PLAN 

The plaintiffs are not entitled to summary judgment in their favor because the facts of the 

1997 redistricting process that produced the remedial plan at issue here show that race did not 

predominate in the drawing of any of the congressional districts in the plan. In 1977, the General 

18  



Assembly had two goals. first. to remedy the constitutional violation found with regard to District 

12. and second, the preserve the partisan balance in the state’s congressional delegation. The plan 

that was passed does not split precincts, does not rely on point contiguity, and contains districts that 

are substantially more geographically compact. Traditional redistricting principles were followed, 

and not subordinated to racial concerns. 

Decisions of the Supreme Court since Shaw v. Reno, 509 U.S. 630 (1993), have clarified the 

prerequisites for the “analytically distinct” cause of action, 509 U.S. at 652, recognized in that case. 

A Shaw plaintiff sburden is to show that “race for its own sake, and not other districting principles, 

was the legislature's dominant and controlling rationale in drawing its district lines,” Bush v. Vera, 

517 U.S. 116 S.Ct. 1941, 135 L.Ed.2d 248. 256 (1996), quoting Miller v. Johnson, 515 U.S. 

, 115 S.Ct. 2475, 132 L.Ed.2d 762, 777 (1995). and “that other, legitimate districting principles 

were ‘subordinated’ to race.” Bush, 135 L.Ed.2d at 259-68. 

It is not enough for plaintiffs to show merely that the decision-maker intended to create a 

majority-minoritydistrict. or even that the districting was performed “with consciousness of race.” 

Bush, 135 L.Ed.2d at 257. 

States may intentionally create majority-minority districts. and may otherwise take 

race into consideration. without coming under strict scrutiny ... [O]nly if traditional 

districting criteria are neglected, and that neglect is predominantly due to the misuse 

of race. does strict scrutiny apply. 

Bush, 135 L.Ed.2d at 280 (O’Connor, J., concurring) (emphasis in original). If race was only one 

  

?As Judge Higginbotham of the Fifth Circuit has pointed out, seven members of the 

Supreme Court have rejected the contrary view advocated by Justices Thomas and Scalia and 

have held “that strict scrutiny does not [automatically] apply to all cases involving the intentional 

creation of majority-minority districts.” Clark v. Calhoun County, 88 F.3d 1393, 1404 & n.2 

(1996), citing Bush, 135 L.Ed.2d at 257 (majority opinion). 290 n.7 (Stevens, J. dissenting); 328 

19  



@ » 
factor, not displacing all others, that accounted for the configuration of a districting plan. there is no 

constitutional violation. See DeWitt v. Wilson, 856 F. Supp. 1409, 1413 (E.D. Cal. 1994). 

Plaintiffs cannot prove their Shaw claim because there is overwhelming, uncontradicted and 

competent evidence that the 1997 remedy plan was crated to meet significant non-racial objectives 

and comports with traditional districting criteria. District 12 in the 1997 remedy plan is not a 

majority black district. Partisan concerns rather than race predominated in the drawing of the 

district. White plaintiffs in this district are not stigmatized or otherwise harmed by being in the 

district. 

The First District is the only majority-black district in the plan. It is not constitutionally 

suspect merely because it contains a bare majority of black citizens. The district is geographically 

compact, unites voters who have a community of interest, and is truly an opportunity district for a 

candidate of any race. In these circumstances, the district is constitutional. 

IV THE FIRST CONGRESSIONAL DISTRICT IS NARROWLY TAILORED TO 
ACHIEVE A COMPELLING STATE INTEREST 

Even if plaintiffs are right that race predominated in the drawing of the First District, which 

Applicants dispute. the state had a compelling interest in drawing this district to avoid liability for 

vote dilution in violation of Section 2 of the Voting Rights Act of 1964, and to remedy years of 

discriminationin matters affecting voting in the northeast region of the state. District 1 is narrowly 

tailored to meet this compelling state interest. 

The threshold elements of a Section 2 violation are: “first, ‘that [the minority group] is 

sufficiently large and geographically compact to constitute a majority in a single-member district; 

  

(Souter, J., dissenting).  



second. ‘that it is politically cohesive;’ and third. ‘that the white majority votes sufficiently as a bloc 

to enable it ... usually to defeat the minoritys preferred candidate.” Growe v. Emison, 507 U.S. 25. 

29 (1993) quoting Thornburg v. Gingles, 478 U.S. 30, 50-51. 106 S.Ct. 2752,92 L.Ed.2d 25 (1986). 

Members of the North Carolina General Assembly had information before them during the 1997 

redistricting process that indicated that each of these elements was present with regard to the 

northeastern region of the state. Many of the plans considered by the legislature demonstrated that 

black voters in the northeast are sufficiently geographically compact to constitute a majority of the 

population in a congressional district. The fact that black voters in this region of the state are 

politically cohesive, and that white voters usually vote sufficiently as a bloc to defeat the choice of 

black voters was demonstrated by the racially polarized voting analysis conducted by Professor 

Richard L. Engstrom of the University of New Orleans. His analysis of the 1996 Gantt-Helms 

senate contest demonstrated further that polarized voting is more severe in the northeast than in the 

state generally. Several expert reports concerning the history of official discrimination affecting 

black voters” ability to participate in the electoral process, the use of racial slurs in election 

campaigns, the lack of electoral success by black candidates were presented to the legislature, as well 

as sworn statements by witnesses concerning a number of factors relevant to the totality of 

circumstances in North Carolina. The legislature had before it ample evidence that the failure to 

draw a majority-black district in the northeast would constitute a violation of Section 2 of the Voting 

Rights Act. 

A state is required to create a majority-minority congressional district where the three 

Gingles factors are present. Bush v. Vera, 135 L.Ed.2d at 280-81. Thus, the General Assembly had 

a compelling state interest in drawing the First Congressional District. 

21  



The plaintiffs argue that this district is not narrowly tailored because it has more black voters 

than are necessary to elect a black candidate. This argument is directly contrary to the Supreme 

Court’s holdings in Shaw v. Hunt and Bush v. Vera. In both cases, the court acknowledged that not 

only does a legislature have a compelling interest in drawing a majority-black district where the 

Gingles factors are present, but that such a district is narrowly tailored when it is located in the 

region of the state where the geographically compact, politically cohesive minority population lives. 

Shaw, 135 L.Ed.2d at 226; Bush, 135 L.Ed.2d at 280-81. Justice O’Connor points out that in 

avoiding liability under Section 2 of the Voting Rights Act, “if a State pursues that compelling 

interest by creating a district that ‘substantially addresses’ the potential liability and does not deviate 

substantially from a hypothetical court-drawn § 2 district for predominantly racial reasons, its 

districting plan will be narrowly tailored.” Bush, 135 L.Ed.2d at 280-81 (citations omitted). This 

is precisely what the General Assembly did in enacting District 1 in the 1997 remedy plan. The 

plaintiffs suggest that the legislature must engage in political speculation about how many minority 

voters are needed to elect minority candidate in the district. That is not what the law requires. A 

majority-minority district is narrowly tailored if it remedies the potential violation by giving black 

voters an equal opportunity to elect a candidate of their choice. Here, District 1 is just 50.27% black 

in population and is actually majority-white in voting age population. This district 1s narrowly 

tailored and constitutional. 

CONCLUSION 

The 1997 remedy plan is constitutional. The Court should grant the defendants’ cross-motion 

for summary judgment. 

Jo 
Respectfully submitted this 7 — day of March, 1998. 

a2  



tail Rite tier 
ADAM STEIN 

ANITA S. HODGKISS 

Ferguson, Stein, Wallas, Adkins, Gresham & 

Sumter, P.A. 

741 Kenilworth Ave.. Ste. 300 

Charlotte, North Carolina 28204 

(704)375-8461 

  

ELAINE R. JONES 

Director-Counsel 

NORMAN J. CHACHKIN 

JACQUELINE A. BERRIEN 

TODD A. COX 

NAACP Legal Defense and Educational Fund, Inc. 
99 Hudson Street, Suite 1600 

New York, New York 10013 

(212) 219-1900 

Attorneys for Applicants to Intervene as Defendants 

 



CERTIFICATE OF SERVICE 
  

The undersigned hereby certifies that she has this day served a copy of the foregoing 

DEFENDANT-INTERVENOR'’S RESPONSE TO PLAINTIFFS’ MOTION FOR 

SUMMARY JUDGMENT upon opposing counsel by depositing a copy of same in the United 

States mail, postage prepaid, addressed to: 

Mr. Robinson O. Everett 

Suite 300 First Union National 

Bank Building 

Post Office Box 586 

Durham, North Carolina 27702 

Mr. Edwin M. Speas, Jr. 

Senior Deputy Attorney General 

North Carolina Department of Justice 

Post Office Box 629 

Raleigh, North Carolina 27602-0629 

This & day of March, 1998. 

och f Hollis. fae 
  

Attorney for Applicants to Intervene 

as Defendants