Memo from Chambers to Lee; Correspondence between Chambers and Wilensky

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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF NORTH CAROLINA 

EASTERN DIVISION 

Civil Action No. 4-96-CV-104-BO(3) 

MARTIN CROMARTIE, et al., 

Plaintiffs, 

PLAINTIFFS’ REPLY TO DEFENDANTS’ 

MOTION FOR A STAY 

Y. 

JAMES B. HUNT, JR,, in his official 

capacity as Governor of the State of North 
Carolina, ct al., 

Defendants. 

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INTRODUCTION   

On Friday, March 10, 2000, the defendants filed in this Court their Notice of Appeal and 

a motion for a Stay of the Court’s Opinion, Order, and Injunction that had been entered three 

days before. Later that day, plaintiffs’ counsel sent a representative to the office of the Attorney 

General to obtain a copy of the documents which defendants had filed with this Court. At about 

3:30 P.M. on Fnday, plaintiffs’ counsel, Robinson O. Everett, personally visited the office of the 

Clerk of the Supreme Court to determine what documents, if any, had been filed there by 

defendants. He was advised that an Emergency Application for Stay had been “lodged” for the 

purpose of filing if this Court denied the defendants’ application for stay. Subsequently he 

determined that defendants had attached to their motion for a Stay in this court their Emergency 

Application to the Supreme Court and that they were relying on that document and its 

 



      

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5 ¢ » 

attachments as the rationale for their motion here. 

Because the defendants are pressing for immediate action on their motion and in light of 

the short time available to plaintiffs between late Friday aftemoon, March 10", and Monday, 

March 13", the plaintiffs are filing in this Reply an abbreviated version of the argument they plan 

to include in the Response they will file in the Supreme Court if the Motion for a Stay is denied. 

I. THE PRECEDENT SET BY THE DENIAL OF DEFENDANTS’ APPLICATION FOR A 

STAY IN APRIL, 1998 DEMANDS DENIAL OF THE PENDING MOTION. 

In April 1998, both this Court and the Supreme Court were requested by these same 

defendants to stay an injunction against use of the same 1997 Congressional redistricting plan 

that is the subject of the defendants’ current appeal and sidoh for a stay. The denial in 1998 of 

the defendants’ motion for a stay is a crecedent that demands denial of the present motion. 

In the first place, the decision rendered by the district court on March 7 was handed down 

after full discovery and after a trial on November 29 - December 1. The current decision came 

almost oe months before the scheduled first primaries, while in 1998 the summary judgment for 

plaintiffs was rendered only about one month before the scheduled first primaries. Thus, on the 

present occasion more leeway exists to adjust to the setting aside of the unconstitutional plan 

under which congressional candidates have already filed. Not only is more time available to 

prepare a remedial plan, but also the trial of the case in late November gave ample notice to 

North Carolina legislators, as well as to the Attorney General, that the 1997 plan - which has 

never been placed in use - might be ruled unconstitutional. Therefore, the General Assembly had 

ample opportunity to make contingency provisions and provide for replacing the never used 1997 

 



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plan by enactment of a constitutional redistricting plan for the year 2000 primaries and elections. 

Unfortunately, just as the General Assembly had done in May of 1998 when it provided that the 

1997 plan would be used if the Supreme Court reversed the summary judgment enjoining its use, 

the legislators took no action to minimize potential disruption should the decision of the three- 

judge court prove adverse. Under these circumstances, if these same defendants did not qualify 

for a stay from this Court or from the Supreme Court in April 1998, they clearly fail to qualify 

now for such relief. 

Second, to allow use in the year 2000 elections of a Twelfth District which is about 47% 

African-American in population - after use in the 1998 election of a plan in which the Twelfth 

District was only about 35% African-American in total population - would not only be 

interpreted as “backsliding” towards more flagrant racial gerrymanders, but also would represent 

an implicit insult to the principles established by the Shaw litigation. 
  

Third, the defendants repeatedly have complained over the years that they and the district 

court lacked adequate guidance from the Supreme Court as to what Shaw required. Although 

plaintiffs view these complaints with great suspicion, the Supreme Court provided in Hunt vs, 

Cromartie, 526 U.S. 541, 119 S.Ct. 1545, whatever added guidance was needed in order to 

  

determine whether the Twelfth District in the 1997 plan was illegal. This court was directed to 

conduct a trial to determine whether race was the predominant motive for the General 

Assembly’s creation of the Twelfth and First Districts, and if such a finding was made as to 

either district, the Court was then instructed if that district survived the test of “strict scrutiny”. 

Pursuant to this clear mandate, this court considered voluminous evidence of every type, as was 

described in the Court’s Opinion. Not surprisingly, this Court found that race was predominant as 

 



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to both districts. Since this court is composed of judges familiar with local conditions and with 

North Carolina’s history of racial gerrymandering’; and since they considered the evidence 

thoroughly, the Court’s finding that race predominated is entitled to a very strong presumption of 

correctness. 

Fourth, the defendants deserve no relief from the injunction because their hands are not 

clean. The proviso in the 1998 plan which called for its replacement by the 1997 plan was an 

Invitation to delay and to confusion, because it forestalled the trial that this Court had scheduled 

for the fall of 1998 to decide on the constitutionality of the 1998 plan. Indeed, the defendants 

have engaged consistently in obfuscation and reliance on groundless objections. Probably the 

defendants’ most serious exercise in obfuscation was represented by Senator Cooper’s testimony 

purporting to explain his motive - an explanation which this court properly rejected as 

implausible. The circumstance that the post hoc explanations by Senator Cooper and 

Representative McMahan, who chaired the committees that drew the 1997 and 1998 Senate 

redistricting plan, are so at odds with their contemporaneous statements to their legislative 

colleagues reenforces this Court’s rejection of their assertions that race did not predominate. 

On February 10, 1997, Gerry Cohen - who was the principal draftsman of the 1992, 1997, 

and 1998 plans - sent an E-mail to Senator Cooper, as well as to Senator Leslie Winner, who also 

played a major role in designing both the 1992 and 1997 plans. This E-mail makes clear that 

race was the underlying criterion that defendants used in drawing the Twelfth and First Districts 

  

' Judge Voorhees not only has served on the Cromartie panel but also on the panel that decided the Shaw case.  



      

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and that they have been consistently attempting to disguise this fact? Another example of 

defendants’ tactics is their making of groundless charges against the plaintiffs and their counsel,’ 

and defendants’ omissions in setting out relevant facts in arguments or briefs." For the court to 

grant defendants a stay would reward those who do not have “clean hands”. 

Fifth, as will be no surprise, the defendants have greatly overstated the confusion and cost 

that would result from denying the Stay and awaiting the preparation by the General Assembly or 

this court of a constitutional redistricting plan.’ For example, one obvious solution would be to 

delay both the first and second primaries for about three weeks while the General Assembly 

enacted a constitutional plan or, in default thereof, if this court adopted a remedial plan for the 

year 2000 primaries election.’ Many states have primaries much later than North Carolina; and 

on at least one occasion in recent years this State conducted its primaries in August. 

Furthermore, for many years North Carolina conducted its first primary in late May and its 

  

2 The law of evidence makes clear that contradiction and concealment by a witness may 

not only impeach his or her testimony, but also constitutes evidence of the witness’ actual motive 

or intent. cf McQueeney v. Wilmington Trust Co., 779 F.2d 916 (3" Cir. 1985). 
  

3 For example, defendants’ counsel evoked a quick rebuke from this court when she 

accused plaintiffs of “laches.” Also, as the evidence made clear, no factual basis existed for the 

defendants’ repeated charges that plaintiffs’ counsel was using the plaintiffs as mindless pawns 

to continue personal attack against racial gerrymanders. 

“The plaintiffs’ responses to defendants’ motions for claim preclusion make clear that 

those motions had failed to mention some essential facts of which the defendants should have 

been well aware. 

5 See attached affidavit of Seth Neyhart. Moreover, both the current filings for congress 

under the 1997 plan and experience with past plans make clear that it is unlikely a primary will 

take place in every congressional district. 

® A remedial plan by this Court would require no Section 5 preclearance. 

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second primary in late June.’ 

After the General Assembly enacted its 1998 redistricting plan to replace the 

unconstitutional 1997 plan, a single congressional primary took place that fall; and the person 

who had the plurality in each party’s primary was that party’s candidate for the general election. 

A similar arrangement could be used this year so that a single congressional primary could be 

conducted on the date of the scheduled second primary for other public offices. Moreover, as 

this court can properly notice iudicially, the likelihood of a statewide second primary is great, 

because there are three major Republican candidates for governor; and therefore minimal 

additional cost would result from holding Congressional primaries at that time. 

Another possibility would be to follow the procedure used in rescheduling the 

congressional primaries in the fall of 1998 - have a single primary with each party’s nominee 

being the winner of a plurality of votes. One more alternative is to use the procedure employed 

by Texas in 1996 for electing members of Congress from thirteen districts that were redrawn 

because they were racially gerrymandered. There the primary was held on the date of the general 

election and it was open to candidates of any party and to independents. If no candidate obtained 

a majority, a runoff was conducted in December between the two top candidates, regardless of 

party. 

In view of the means available for minimizing any disruption resulting from enjoining use 

of the unconstitutional 1997 plan, many of the purported problems on which defendants rely can 

  

’ Probably moving the primaries forward by several weeks was related to the timing of 
presidential primaries and was intended to provide greater impact for the results of North 

Carolina’s presidential primaries. Presidential primaries will be irrelevant to the scheduling of 
the year 2000 primaries since choice of the presidential nominees by each major part already 

seem clear. 

 



   

  

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be readily solved. Moreover, it deserves emphasis that those problems have been created by the 

defendants themselves because of their stubborn refusal to accept the instruction provided by 

Shaw v Reno. 509 U.S. 630 (1993). 
  

II. DEFENDANTS APPEAL IS DOOMED TO FAILURE. 

The likelihood of success on appeal is an obvious factor in determining whether to grant 

an appellant a stay. In their appeal, defendants’ chance of success is negligible because the 

evidence against them is overwhelming.* 

All the demographic evidence, as reflected in the seven exhibit volumes of charts and 

maps, provides convincing proof of the defendanty’ predominant racial motive. The legislative 

record and the State’s Section 5 submission also contain strong evidence of the General 

Assembly’s overriding racial motive. The circumstance that Gerry Cohen, the principal 

draftsman of the 1997 plan, had also been the principal draftsman of the 1992 plan and that in 

sworn testimony he defended both plans as not being race-based has some significance. His 

testimony and that of Senator Cooper on cross-examination also furnished important indications 

of the defendant’ predominant racial motive. 

The Twelfth District's repeated violations of traditional redistricting principles - such as 

its splitting of all six of its counties and all of its major cities and towns along racial lines - 

  

8 Plaintiffs have contended in the past that the “predominant motive” requirements 

conflicts with the principles recognized by Village of Arlington Heights v. Metropolitan Dev. 

Corp., 429 U.S. 252(1977) and that also a State should be required to prove that a new plan 

which replaces a prior racially gerrymandered plan does not carry forward a predominant racial 

motive. No need exists to assert such arguments in this case because the evidence at trial so 

clearly demonstrated the predominance of a racial motive. 

  

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constituted strong evidence of the General Assembly’s racial motive. The same may be said of 

the State's use of the nebulous concept of “functional compactness” to justify its plan. Also 

somewhat suspicious is the circumstance that, without changing in any way its expressed 

“political” goals, the General Assembly in its 1997 plan could draw a Twelfth District that was 

47% African-American and in the 1998 plan a Twelfth District that was only about 35% African- 

American. 

Although the boundaries of the Twelfth District have some correlation with party 

registration and political performance, the correlation is much closer with race. This was made 

clear not only by the testimony of Dr. Ron Weber, a political scientist recognized as an expert in 

redistricting, but also by in-court testimony from five well-informed witnesses - Senator Horton, 

Speaker Pro-Tem Wood, Representative Weatherly, and plaintiffs Everett and Froelich. 

Defense witnesses talked about preserving in 1997 the “cores” of districts from the 1992 

plan. Significantly this preservation effort led to creating a Twelfth District in the 1997 plan in 

which 90.2% of the African-Americans in that district had also been in the district in 1992 but 

only about 48.8% of the whites in the district had been in the Twelfth District in 1992. (Trial 

transcript at 123). 

Plaintiffs’ expert, Ron Weber, used a methodology well recognized among political 

scientists in reaching his conclusion that race predominated as a motive in drawing both the 

Twelfth and First Districts.” However, it was amply demonstrated at trial that the methodology 

  

® As Judge Thornburg noted, (at note 23) Dr. Weber was not informed initially that the 

North Carolina computer system “did not display political breakdowns”. However, his testimony 

at trial makes clear that, after being informed of this circumstance, he performed further analysis, 

and reached the same results as to predominant racial motive. His curriculum vitae demonstrates 

that many federal judges in the past have given great weight to his testimony. 

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of Dr. Peterson, a statistician, who relied on comparing the boundary precincts of the Twelfth 

District, was both unreliable and irrelevant in determining whether a racial motive predominated. 

¢f Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579. 113 S.Ct 2786 (1993). 
  

The State has relied heavily on the direct testimony of Senator Cooper and Representative 

McMahan as to their intent. In each instance, the court had an opportunity to observe the 

witness’ demeanor and to compare - or contrast - with his direct testimony his admissions under 

cross-examination, and his earlier statements in the General Assembly when the 1997 plan was 

being considered. Providing the factfinders an opportunity for such observation is a central 

purpose of a trial. For an appellate court then to disregard the findings based on such observation 

would be extraordinary. 

Furthermore, the factfinders had the opportunity to hear the testimony on both direct and 

cross-examination of three other persons who had served in the General Assembly while the 

1997 plan was being considered. Two were from the House and one from the Senate; and as 

their testimony discloses, none of these three witnesses - one of whom had been Speaker Pro 

Tempore of the House - had any incentive to misstate what they had observed as to the 

predominant racial motive when the General Assembly adopted the 1997 plan. Furthermore, 

unlike Senator Cooper or Representative McMahon, none of these witnesses was defending his 

own handiwork: as the factfinders could properly take into account in evaluating their credibility. 

A final, devastating blow to the defense was inflicted by the evidence about the E-mail 

sent on February 10, 1997 from Gerry Cohen to Senators Cooper and Winner. When that 

message is considered in conjunction with the contemporaneous changes that Cohen was making 

to the Senate Redistricting plan and the role of Senator Cooper as Chair of the Senate  



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Redistricting Committee, the significance of the E-mail is apparent. The movement of voters 

into the Twelfth District is described there in terms of moving the “Greensboro black 

community.” Obviously Cohen, Cooper, and Winter were thinking at that point in terms of race - 

not political affiliation. 

By reason of the requirement that all congressional districts in a State have equal 

populations, it is clear that Cohen was moving 60,000 African-Americans into the Twelfth 

District from elsewhere and needed to determine from what parts of the Twelfth District he 

should remove 60,000 whites. He was not merely being “conscious” of race, it was his primary 

concern. In Miller v. Johnson, 515 U.S. 900, 916, 115 S.Ct. 2475, 2487 (1995), the Supreme 
  

Court pointed out that “the plaintiffs’ burden is to show, either through circumstantial evidence 

of a district’s shape and demographics or more direct evidence going to legislative purpose, that 

race was the predominant factor motivating the legislature’s decision to place a significant 

number of voters within or without a particular district.” A movement of 60,000 persons in the 

“Greensboro black community” into the Twelfth District - counterbalanced by the movement of 

a corresponding number of whites out of that District - clearly involves a “significant number” 

of members of each race and is subject to “strict scrutiny.” 

[II. THE DEFENSE OF CLAIM PRECLUSION WAS FRIVOLOUS. 

As the court notes, the defense of claims preclusion was answered by a passage in the 

Memorandum Opinion of the Shaw court, which made clear that its approval of the 1997 was 

limited to “the plan’s remedial adequacy with respect to [the parties to Shaw] and the equal 

protection violation found as to former District 12." This dispositive passage has been 

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consistently ignored by defendants. 

Likewise defendants disregarded the well established elements of claim preclusion: 1) a 

final judgment on the merits; 2) the same cause of action; and 3) the same parties or their privies. 

See, e.g. Nash County Board of Education v. Biltmore Co, 646 F.2d 484, 486 (4™ Cir. 1980). To 
  

bridge the gap they seek to involve virtual representation, when this doctrine is clearly 

inapplicable. See, e.g. Klugh v. United States 818 F.2d 294 (4™ Cir 1987); cf South Central Bell 

Telephone Co. v. Alabama 526 U.S. 160, 119 S.Ct. 1180, (1999). Defendants failed to even 
  

address the Klugh case even though it is a Fourth Circuit case directly on point. 

As to the Twelfth District two plaintiffs, R. O. Everett of Salisbury and J.H. Froelich, Jr. 

of High Point, clearly had standing. Significantly after the oral denial by the court of defendants’ 

Motion for Summary Judgment at the beginning of trial, defendants counsel never reasserted the 

claim preclusion defense. Nor did they even mention claim preclusion in their closing 

arguments. Meanwhile plaintiffs Everett and Froelich had given testimony at trial which, among 

other things made clear that each of them was acting on their own in becoming a plaintiff and 

they were plaintiffs because they believed racial gerrymanders caused them great harm." 

[V. PLAINTIFFS-RATHER THAN DEFENDANTS-WOULD SUFFER IRREPARABLE 

INJURY FROM A STAY. 

Defendants have tried to assert irreparable injury as the basis for a stay. As has been 

  

"Since plaintiffs Everett and Froelich clearly had standing as registered voters in the 
Twelfth District, it makes no difference whether plaintiff Linville had standing, but when his 

neighborhood’s removal from the 1992 Twelfth District is placed in context, including the 

context of the February 10" E-mail, it seems clear that he was one of a “significant number” of 

whites moved outside the District. 

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noted earlier, such injury can be avoided without a stay. Moreover, any injury to defendants is 

self inflicted because of their efforts to maintain a racial gerrymander despite clear judicial 

mandates that doing so would be unconstitutional. 

On the other hand, plaintiffs, other registered voters, and the public will be irreparably 

injured if a stay is granted. In this regard, defendants have completely missed the point of this 

case and of the Shaw litigation which preceded it. Even though Froelich, Everett and the other 
  

plaintiffs did not bring a class action, they are representative of a public interest in avoiding 

governmental approval of race in the electoral process. The harm they seek to avoid is similar to 

that which results from the conscious use of race in the exercise of peremptory challenge. Cf. 

Batson v. Kentucky, 476 U.S. 79 (1986). 

For almost a decade the premise of the Attorney General of North Carolina and of the 

General Assembly has been that use of racial gerrymanders to assure the election of African- 

Americans to public office is benign. Plaintiffs have no objection to black office-holders, quite 

the contrary." 

However, they object strongly to the “Balkanization” that, as Justice O’Connor noted in 

Shaw I, would be a likely result of racial gerrymandering. Thus, to allow the inflicting of the 

unconstitutional 1997 racial gerrymander on the plaintiffs or on any other registered voter would 

do lasting harm to the electoral process and to public confidence in that process. 

  

"' According to his deposition plaintiff Cromartie was at one time a member of the 
NAACP. This was also true of Melvin Shimm, one of the five original plaintiffs in the Shaw 

case. Plaintiff Everett has been a trustee of a predominantly African-American college in his 

home community of Concord, North Carolina. Moreover, the plaintiffs have not hesitated to 

vote for Representative Watt and Clayton, who are African-Americans. The point is that 
plaintiffs are convinced that racial gerrymanders are an unconstitutional means for electing 

African-Americans to office. 

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Furthermore, granting a stay would also do damage to public confidence in the judicial 

system. It would clearly indicate that the courts are powerless to correct major constitutional 

violations if the wrongdoer adopts tactics of delay, obstruction, and concealment. Inevitable and 

understandable cynicism about the judicial system will also be the result if the North Carolina 

General Assembly is allowed to continue its flagrant racial gerrymandering into this millennium. 

CONCLUSION 
  

For the reasons stated above, the stay sought by the defendants should be summarily 

denied. 

Respectfully submitted this the 13" day of March, 2000 

hall. 
Robinson O. Everett 
Everett & Everett 

N.C. State Bar No.: 1385 

Attorney for the Plaintiffs 

P.O. Box 586 

Durham, NC 27702 

Telephone: (919)-682-5691 

  

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Williams, Boger, Grady, Davis & Tuttle, P.A. 

by: 
  

Martin B. McGee 
State Bar No.: 22198 

Attorneys for the Plaintiffs 
P.O. Box 810 

Concord, NC 28026-0810 

Telephone: (704)-782-1173 

@015/016 

  

Douglas E. Markham 

Texas State Bar No. 12986975 

Attorney for the Plaintiffs 

333 Clay Suite 4510 

Post Office Box 130923 

Houston, TX 77219-0923 

Telephone: (713) 655-8700 

Facsimile: (713) 655-8701 

wa Poy frit 
  

Seth A. Neyhart 

Wisconsin State Bar No. 103 oh 

N7983 Town Hall Road 

Eldorado, WI 54932 

Telephone: (920) 872-2643 

Robert Popper 

Law Office of Neil Brickman 

630 3 Ave., 21° Floor 
New York, NY 10017 

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: ee © eo © 

CERTIFICATE OF SERVICE 

I certify that [ have this day served the foregoing Plaintiffs’ Reply to Defendants’ Motion 

for a Stay to Defendants by hand delivery to the following addresses: 

Tiare Smiley 

North Carolina Department of Justice 

P.O. Box 629 
Raleigh, NC 27602 

Mr. Adam Stein 

Ferguson, Stein Wallas, Adkins, Gresham, Sumter, P.A. 

312 W. Franklin St. 

Chapel Hill, NC 27516 

This the 13" day of March, 2000. 

EL 
Robinson O. Everett 

Attorney for the Plaintiffs 

  

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