Letter to R. Everett From Smiley RE McMahan Deposition

    Everett & EVERETT 
ATTORNEYS AND COUNSELORS AT LAW 

SUITE 300 

R.O. EVERETT (1878-1971) 301 W. MAIN STREET 

KATHRINE R. EVERETT (1893-1992) P.O. BOX 586 

RoBi SoM IQ Rvenen DurHaM, NORTH CAROLINA 27702 TEL: (919) 682-5691 

SANDRA G. HERRING FAX: (919) 682-5469 

OF COUNSEL 

ROBERT D. HOLLEMAN 

OF COUNSEL 

CRAIG M. KABATCHNICK 

(ADMITTED NC, D.C.) July 21, 2000 

Dear Tiare, 

We expect this letter to constitute the complete list of our Joint Appendix materials. We 

will attempt to hold to the Monday, July 24 date for revisions, despite the extension requested. 

Attached are lists of our transcript designations, deposition designations, and a list of selections 

from the legislative record and other trial exhibits. 

The exhibit list includes the map list we have sent previously, except for Exhibit 145, the 

Mecklenburg precinct map. We have decided not to use this map after formatting it because it is 

not readable in the 8 and a half by 11 size. We have also decided not to submit focus maps from 

Exhibit 253, which did not reproduce well. All the maps from 106 to 289 on the list are 
enclosed. 

We are also attaching copies of Shaw pleadings we consider relevant to the claim 

preclusion issue to be included, namely the October 14, 1997 Defendants’ Memorandum In 

Support of Motion to Consolidate, and the October 16, 1997 Order denying Defendants’ Motion 

to consolidate Cromartie and Daly with Shaw. As to the docket entries we have the following to 

be added: 31, 58, 59, 60, 61, 85, 105, 107, 109, and 110. 

With respect to the Gilkerson timeline, we only wish to designate pages 26 through 42, 

deleting the entries of March 20, 1997, April 24, 1997, April 30, 1997, and May 6, 1997 on the 

proposed bill to require single member districts for the state house and senate as being unrelated 

to the case at bar. As for Dr. Weber’s Declaration, Ex. 47, we are sending over a marked-up hard 

copy of what we intend to submit for the Joint Appendix. We believe we are on schedule to have 

a copy on disk with the final edited version of Dr. Weber's report to you on Monday, July 24. 

As we have previously informed you in our letter of July 18, 2000, our designated 

stipulations from the Final Pre-Trial Order are 24, 25, 26, 29, 31, 32, 34, 52 through 63, 74 & 75. 

Sincerely, 

fotrnoon O. Ren Zt 
by: Jerr X 

Robinson O. Everett 

cc: Todd Cox w/o attachments 

Adam Stein w/o attachments  



APPELLEE’S JOINT APPENDIX TRIAL TRANSCRIPT DESIGNATI ONS 

  

OPENING STATEMENT OF MS. SMILEY: 

30 line 20 through 32 line 13 

HAM HORTON: 

36 line 19 through 42 line 15 

32:20 through 33:2 

34:4 through 14 

STEVE WOOD: 

48:2 through 51: 23 

55:22 through 62:5 

64:25 through 66:6 

JOHN WEATHERLY: 

66:12 through 68:17 

70:5 through 72:4 

74:21 through 75:3 

77:18 through 78:18 

R.O. EVERETT: 

82:23 through 89:23 

JAKE FROELICH 

101:4 through 103:19 

106:18 through 107:7 

108:16 through 108:23 

NEAL WILLIAMS 

109:11 through 114:23 

 



  

DAN FREY 

121:2 through 123:11 

DR. WEBER 

143:22 through 154:5 

158:21 through 160:15 

161:14 through 163:20 

164:23 through 166:18 

167:23 through 168:12 

181:7 through 182:20 

185:11 through 190:20 

195:1 through 196:20 

198:24 through 207:5 

213:9 through 214:9 

220:10 through 240:24 

242:15 through 246:4 

248:23 through 251:10 

261:7 through 11 

279:12 through 279:21 

315:8 through 21 

318:22 through 319:10 

SENATOR COOPER: 

338:22 through 339:5 

348:6 through 13 

354:12 through 25 

357 line 20 through 22 

387:21 through 389:16 

396:1 through 9 

411:2 through 412:4 

412:9 through 414:2 

426.7 through 428:14 

429:10 through 430:18 

434:1 through 10 

440:17 through 441:13 

441:24 through 442:25 

 



REPRESENTATIVE MCMAHAN: 

  

469:17 through 472:11 

DOCTOR PETERSON: 

498:20 through 499:15 

507:23 through 512:18 

GERRY COHEN: 

515:17 through 517:8 

528:10 through 14 

529:8 through 22 

531:5 through 17 

ARGUMENT OF MR. STEIN 

595:21 through 596:8 

 



APPELLEE'S JOINT APPENDIX DEPOSITION DESI GNATIONS 

COHEN POPE DEPOSITION 

99 line 19 through 100 line 7 

COHEN SHAW DEPOSITION 

75 line 11 through 76 line 8 
76 line 23 through 77 line 10 
188 line 5 through 189 line 13 
190 line 4 through 191 line 3 

COHEN SHAW TRIAL 
342 line 18 through 343 line 13 
343 line 20 through 344 line 16 
347 line 19 through 348 line 2 
402 line 3 through 21 
421 line 5 through 15 
466 line 8 through 23 
469 line 16 through 470 line 1 
488 line 9 through 16 
497 line 18 through 498 line 22 
543 line 21 through 544 line 1 

COHEN CROMARTIE DEPOSITION 

116 line 1 through 117 line 1 
119 line 13 through 120 line 5 
121 line 12 through 14 
121 line 20 through 123 line 8 
123 line 13 through 130 line 3 
161 line 22 through 162 line 5 
169 line 11 through 14 
195 line 14 through 196 line 3 
291 line 10 through 292 line 8 
293 line 1 through 295 line 23 
296 line 6 through 299 line 1  



PETERSON DEPOSITION 

4 line 10 through 4 line 22 
8 line 3 through 14 
9 line 11 through line 20 
10 line 22 through 11 line 4 
12 line 3 through line 18 
15 line 1 through 16 line 9 
18 line 4 through 8 
19 line 4 through 8 
19 line 21 through 20 line 8 
38 line 10 through 39 line 8 
39 line 22 through 41 line 2 
42 line 10 through 43 line 11 
44 line 22 through 51 line 16 
59 line 6 through 64 line 10 
71 line 4 through line 19 
72 line 15 through line 24 
80 line 15 through 83 line 2 
86 line 19 through 88 line 10 

COOPER DEPOSITION 

68 line 16 through 70 line 8 
75 line 25 through 76 line 6 
80 line 24 through 81 line 13 
104 line 4 through 106 line 6 
112 line 11 through 16 
114 line 13 through 18 
138 line 4 through 11 

JONES DEPOSITION 

71 line 4 through 73 line 2 
73 line 25 through 74 line 15 
75 line 22 through 76 line 13 
159 line 18 through 160 line 10 

MCMAHAN DEPOSITION 

39 line 1 through line 8 
46 line 14 through 47 line 18  



BAKER DEPOSITION 

4 line 13 through line 17 

6 line 5 through line 12 

7 line 5 through line 14 
49 line 17 through 50 line 25 
58 line 1 through line 7 
58 line 24 through 59 line 3 
77 line 22 through 78 line 22 
82 line 9 through 83 line 8 

WEBSTER DEPOSITION 

44 line 13 through 45 line 14 
46 line 10 through 19 

WINNER DEPOSITION 

100 line 19 through 23 
111 line 20 through 112 line 10 
135 line 24 through 136 line 24 
140 line 19 through 141 line 11 

WEBER DEPOSITION 

36 line 25 through 37 line 10 
63 line 7 through 13 

69 line 11 through 17 

122 line 13 through 23 

135 line 21 through 24 

143 line 5 through 18 

169 line 13 through 22 
172 line 16 through 173 line 7 
188 line 24 through 190 line 5 

FROELICH DEPOSITION 

7 line 14 through 8 line 21 

14 line 9 through 15 line 10 

17 line 5 through 18 line 10 

45 line 14 through 46 line 25 

47 line 20 through 48 line 23 

55 line 21 through 56 line 18 

76 line 11 through line 20  



APPELLEE’S JOINT APPENDIX EXHIBIT DESI GNATIONS 

EXHIBIT 23 Type P Divergent Segments using Demo. and Black Registration EXHIBIT 24 Type R Divergent Segments using Demo and Black Registration EXHIBIT 25 Summary of Divergent Precincts and Segments 
EXHIBIT 47 Weber Declaration (Selected Portions to be Submitted) 
EXHIBIT 58 Cohen E-mail to Cooper & Winner 

EXHIBIT 100 (Excerpts of the 1997 Section 5 Submission from the legislative record) 

Statements by Senator Cooper 

1. "It uses as a foundation the basic core of the existing Congressional districts. No district is dramatically changed and most of the districts, if not all of the districts, have become more compact." Feb. 20. 1997 meeting of the Senate Committee on Congressional Redistricting, 97C- 28F-4D(2) at 3. 

2. "I think that overall it provides for a fair, geographical, racial and partisan balance throughout the State of North Carolina." Mar. 25, 1997 meeting of House Committee on Congressional Redistricting, 97C-28F-4E(4) at 2. 

3. “I believe that this new 12th District is constitutional for several reasons. First, and maybe most importantly, when the Court struck down the 12th District it was because the 12th District was majority minority and it said that you cannot use race as the predominant factor in drawing 
the districts. 

Well guess what! The 12th District, under this plan, is not majority minority. Therefore, it is my opinion and the opinion of many lawyers that the test outlined in Shaw vs. Hunt will not even be triggered because it is not a majority minority district and you won't even look at the shape of the district in considering whether or not it is constitutional. That makes an eminent amount of sense because what is the cutoff point for when you have the trigger of when a district looks ugly? I think that the court will not even use the shape test, if you will, on the 12th District because it is not majority minority. It is strong minority influence, and I believe that a minority 
would have an excellent chance of being elected under the 12th District. 

If however, the court decides that the test is triggered for some reason and that awe 
should look at the criteria outlined in Shaw v. Hunt, you need to look at what the, how we have 
improved the shape of the 12th District. 

First, it is much more compact. It is 67% shorter in length than under the old plan and 
you can see how the old plan stretches from Gastonia to Durham. You can drive the length of 
this district in two hours. It is the third shortest district in the entire State. It covers 6 counties 
instead of 10, it connects the metropolitan area of Charlotte and the metropolitan area of the 
Triad. There is certainly a community of interest along that corridor, economic, social, and 
otherwise. It is much wider and it takes into consideration the incumbent and political balance. 

For all these reasons, I believe that the 12th District will be held constitutional." Mar. 27, 
1997 Floor Debate of HB 586 in Senate Chamber, 97C-28F-4F (2) at 5-6.  



  

4. "It is not a majority/minority district. I don't believe, certainly we can argue and don't believe 
that the test for the constitutionality as laid out in Shaw v. Hunt would even be considered 
because it is not majority/minority." Mar 19, 1997 meeting of the Senate Committee on 
Congressional Redistricting, 97C-28F-4D(3) at 2. 

5. “We have preserved the current partisan nature of each of the districts and for that reason, | 
think that all of the incumbents are satisfied. And let me emphasize to you that this is not an 
incumbent protection plan.” Mar 27, 1997 Floor Debate of HB 586 in Senate Chamber, 97C- 
28F-4F(2) at 4-6. 

6. "First, the 12th District [of an alternative plan offered by Senator Cochrane]. It, although it 
does not have the majority/minority African American, when you add it with Native-Americans 
from Mecklenburg to Robeson, then you do have just slightly majority/minority... That in turn 
would trigger the test under Shaw v. Hunt and I don't think our 12th District...under A has 
triggered the test." Mar. 19, 1997 Meeting of the Senate Committee on Congressional 
Redistricting, 97C-28F-4D(3) at 9. 

7. "Thank you, Senator Lucas, I know that there are numerous members of the community of 
Durham, who are concerned about this plan. Currently in the 12th District is where the minority 
community of Durham resides. Unfortunately that is the very tail end of the 12th District and I 
think everyone understands that in order to draw a map that is constitutional, you cannot include 
Durham in the 12th District and I think that, although the wishes and the desires may be there, it 
is not possible. Mar. 27, 1997 Floor Debate of HB 586 in Senate Chamber, 97C-28F-4F (2) at 
24-25. 

Statements by Rep. McMahan 

8. "We believe this District will now stand a Court test for the following reasons: 
1. Not a Majority/Minority District now so shape does not create that-that was the basis 

the Court used to say this was unconstitutional-not an argument now. 
2. Population in 12 has homogenous interest-comprised of many citizens living in an 

urban setting. 

3. Drawn to protect the Democratic incumbent." Mar. 26, 1997 Floor Debate of HB586 
on House Floor, 97C-28F-4F(1) at 2. 

9. "When you do make it more compact, we do reduce the minorities in this district, but I am 
100% confident that a minority can certainly win in a district that exceeds 40%. Feb. 25, 1997 
meeting of the House Committee on Congressional Redistricting, 97C-28F-4E(2) at 2-3. 

10. EXCHANGE BETWEEN REPRESENTATIVE WAINWRIGHT AND 
REPRESENTATIVE MCMAHAN: March 26, 1997 Floor Debate of HB 586 on House 
Floor, 97C-28F-4F(1) at 16. 

Rep. Wainwright: "Thank you Representative McMahan. In your opinion, in this 

 



  

present Plan that is being presented today-do you feel that you have-the Committee has-truly set 
out any Minority Districts in this Plan-a true realistic Minority District? 

Rep. McMahan: "We currently feel that District 1-where it has been based on the old 
data, and I think the current data would be even more, we have more than 50% of the population 
as minorities in District 1. I certainly do believe that would qualify as a Majority/Minority 
District. As far as District 12-I believe, again, that Congressman Mel Watt is very comfortable 
and anyone else that might choose as a minority to run in that district should feel very, very, 
comfortable-when there is 46.5% of the people in that District are also minorities-that they could 
win. So, I think we've done our very, very best considering the Justice Department's ruling, the 
Court's ruling-we've done our very best to try to create two Districts that certainly do have racial 
fairness, and of course you have to keep in mind Representative Wainright, that we were 
instructed by the Court not to depend solely on race. It can only be a factor-along with other 
factors-and that's what we've tried to do." 

Rep. Wainwright: "..If you remove the element of incumbency out of this Plan, do you 
really think that a minority would have a fair chance of being elected especially in the District 
that I was in, and that takes me out of the District now and puts me in a different District in this 
Plan. Do you believe that a minority will have a fair chance of being elected if you remove the 
incumbency element out of it?" 

Rep. McMahan: "Absolutely without any question." 

11. “Tam confident that we have done our best-our dead level best-to draw two Districts that are 
fair racially and do have one of them the majority of the population and the other one over 46%, 
and that's the very best we could do on both sides, and we looked at this very, very closely- 
obviously- and the very best we could do and yet create Districts that we felt would be acceptable 
to the Department of Justice and to the Court." March 26, 1997 Floor Debate of HB 586 on 
House Floor, 97C-28F-4F(1) at 23. 

12. “I sincerely believe that the plan we are presenting here this afternoon is very close to being 
a perfect plan- a plan that recognizes racial fairness but does have geographic compactness to the 
districts, while maintaining the balance that exists in our Congressional Delegation. Feb. 25, 
1997 meeting of the House Committee on Congressional Redistricting, 97C-28F-4E(2) at 1. 

13. “believe our Plan does a much better job than the Current Plan in providing geographic 
compactness, homogeneous compatibility, and divides less than half the Counties than the 
current Plan does. At the same time, it recognizes racial fairness and is friendly to our 
incumbents, which we both determined on the front end to be an important consideration in this 
process.” Mar. 25, 1997 meeting of House Committee on Congressional Redistricting, 97C-28F- 
4E(4) at 2. 

14. “We all recognize the problem we have with the Justice Department telling us to have 
minority/majority districts while the Supreme Court has ruled that the manner in which we drew 
these district lines used race as the predominate factor, and that was not an acceptable practice.” 

 



  

Feb. 25, 1997 meeting of House Committee on Congressional Redistricting, 97C-28F-4E(2) at 2. 

1S. “The plan you see does maintain racial fairness in District 1 and 12. We’ve actually agreed 
to increase the percent of minorities in District 12 to 46% and are now basically following the 
Senate Plan on District 1 and 12.” March 19, 1997 meeting of House Committee on 
Congressional Redistricting, 97C-28F-4E(3) at 2-3. 

Rep. Mickey Michaux 

16. “Let me tell you what is wrong with the Plan that has been brought out here. They talk about 
the 12" District being held constitutional because it is not now a Majority/Minority District. The 
court has said in its ruling that race cannot be a predominate factor-other factors have to be taken 
into consideration, and that would be a community of interest, and even the shape that Justice 
Sandra Day O’Connor called attention to in her opinion. All you have done with the Twelfth 
District in this bill is knock sixty miles off of it. That’s basically all that is done, because if you 
look at the configuration of the 12 District on the map that the Committee sent forth, you will 
see that it i$ basically the same configuration with sixty miles lopped off of it. Mar. 26, 1997 
Floor Debate of HB 586 on House Floor, 97C-28F-4F(1) at 12. 

Senator Betsy Cochrane 

17. “How those of you who were involved in drawing the original I-85, many of you sitting 
around this table, and now have the second I-85, can have as much to say as you can about some 
of the other districts is just a little bit beyond my ability to fathom.” Mar. 19, 1997 meeting of 
Senate Committee on Congressional Redistricting, 97C-28F-4D(3) at 13. 

Senator Blust 

18. “The major weakness with this plan, quite frankly, and I think everybody here knows this is 
the truth whether they will get up and admit it or not its not going to make a difference, is the 
fundamental predicate was on protecting the current twelve. And that was the only way to really 
get a deal between the parties on this and get support for it and there were just two factors that 
went into developing this plan - one was protecting incumbents, the other was race.” Mar. 27, 
1997 Floor Debate of HB 586 in Senate Chamber, 97C-28F-4F (2). 

Linwood Jones 

19. “The Plan we reported out last week was labeled Plan G. This is, of course, labeled ‘97 
House Senate Plan. I’m doing this visually - so I’m just going to give you some of the major 
differences... In Iredell we have gone into Statesville, which I believe picked up the minority 
percentage of District 12- we came a little bit more out of Southern Rowan when we did that.” 
Mar. 12, 1997 House Committee on Congressional Redistricting, 97C-28F-4E(4) at 3-4. 

 



  

EXHIBIT 106 12" District area Race Map 
EXHIBIT 108 Forsyth County Race and Democrat Registration 
EXHIBIT 124 Total black population by county with 12* District Overlay 
EXHIBIT 139 Congressional District 12 overlap, 1992 and 1997 
EXHIBIT 143 Forsyth Precinct Map 

EXHIBIT 144 Guilford Precinct Map 

EXHIBIT 253 COA results map of District 12 Area 

EXHIBIT 263 Senate results map of District 12 Area 

EXHIBIT 265 Senate results map of Forsyth County 

EXHIBIT 266 Senate results map of Guilford County 

EXHIBIT 268 Senate results map of Mecklenburg County 

EXHIBIT 270 Map of North Carolina Population Density 

EXHIBIT 288a Map of 1980s Congressional Districts 

EXHIBIT 289 Map of 1970s Congressional Districts 

EXHIBIT 305 Comparative Map of the Three Twelfth Districts 

EXHIBIT 306 Gilkerson Timeline (Congressional entries from pp. 26-42, 

omitting entries of March 20, 1997, April 24, 1997, April 30, 1997 

And May 6, 1997 as not being related to the Cromartie case) 

EXHIBIT 309 Proportion of Precincts in Six Counties in District 12 

EXHIBIT 402 Photograph of Default Screen in Plan 90