Statement of Anita S. Hodgkiss Before the North Carolina Senate and House Congressional Redistricting Committees

    FERGUSON. og "IN. WALLAS. ADKINS. GRESHA x SUMTER. P. A, 

® ATTORNEYS AT LAW » 

  

JAMES E FERGUSON I SUITE 300 ih SA es 

ADAM STEIN 2 T ANKLIN STREET 

x JONATHAN WALLAS 74! KENILWORTH AVENUE CHAPE_ HILL. NCRTH CAROLINA 27Si6 

KARL ADRING CHARLOTTE. NORTH CAROLINA 28204 TELEPHONE iy 332 5300 
JOHN W GRESHAM TELEPHONE (704) 375-8461 TELECOPIER (919) 267 4953 

GERALDINE SUMTER TELECOPIER (704) 334-5654 
THOMAS M STERN 

C MARGARET ERRINGTON IN CHAPEL HILL 

ANITA S HODGKISS ADAM STEIN 

S LUKE LARGESS THCMAS 4 STERN 

NOELL P TIN 

JAMES E (JAY) FERGUSON il 

REBECCA A THORNE 

OF COUNSEL 

CHARLES J WATTS JR 

HENDERSON it STATEMENT OF ANITA S. HODGKISS 

AT A PUBLIC HEARING BEFORE THE NORTH CAROLINA SEN ATE 

AND HOUSE CONGRESSIONAL REDISTRICTING COMMITTEES 
February 26, 1997 

Mr. Co-Chairmen and Members of the Senate and House Congressional Redistricting 

Committees: 
I am Anita Hodgkiss, an attorney with Ferguson, Stein, Wallas, Adkins, Gresham & Sumter. 

Together with Adam Stein of this firm, and the NAACP Legal Defense and Education Fund, Inc.. | 

represent twenty-two citizens and registered voters who intervened as defendants in the Shaw v. Hunt 

litigation shortly after the Supreme Court issued its opinion in Shaw v_Reno in 1993. The defendant- 

intervenors are white and black voters from throughout the state. including three voters who live in 

the northeastern region. 
I am here today, on behalf of the defendant-intervenors, to present for your consideration 

specific and detailed evidence demonstrating that Section 2 of the Voting Rights Act requires that 

the legislature create a majority-black Congressional District in the northeastern region of the state. 

as both the Senate and House committee plans do 

The evidence I am providing to you details past discrimination in voting, in elections, and in 

the redistricting process. as well as how African-American voters currently suffer the effects of prior 

discrimination in education, employment, housing and other areas which hinder their ability to 

participate equally in the political process, thereby requiring remedial action on your part. Before 
summarizing the evidence contained in the materials I am submitting to you. [ would like to briefly 

outline my chents’ position. 

  

  

I. DEFENDANT-INTERVENORS® POSITION 

My clients’ goal in the litigation, and now through the remedial proceedings. is to ensure that 
North Carolina's congressional districts are drawn in such as way as to provide African-American 
voters an equal opportunity to elect candidates of their choice to Congress. This can be accomplished 
without sacrificing or subordinating traditional redistricting principles such as compactness, 

contiguity, and recognizing communities of interest. Thus, considerations of the racial composition 

of the Congressional districts do not need to predominate over traditional redistricting principles in 

order to satistv Section 2 of the Voting Rights Act. 

I am not submitting an alternative congressional redistricting plan, nor taking a position at this 

time on which of the two plans already under consideration best meets the Section 2 requirements 

MAILING ADDRESS: POST OFFICE BOX 36486 CHARLOTTE. NORTH CAROLINA 28236-6486 

 



  

since both of them create a majority-black district in the northeast region of the state. Rather, my 
clients’ position is summarized as follows: 

1. Section 2 of the Voting Rights Act requires the legislature to create a majority 

black district in the northeast region of the state because all of the Gingles factors are 

met there and the failure to do so would illegally dilute the voting strength of black 
voters. 5 

2 The North Carolina legislature can comply with Section 2 of the Voting Rights 

Act by creating a majority-black congressional district in the northeast region of the 

state without subordinating traditional redistricting principles. 

3. In addition to the mandate of Section 2 of the Voting Rights Act, the North 

Carolina legislature is justified in creating a majority-black district in the northeast 

region of the state because of the need to remedy past discrimination in voting, in the 

redistricting process, and in matters affecting elections that currently hinder the ability 

of black voters to participate equally in the electoral process. 

In order to explain how the evidence submitted with this statement supports these 

propositions, it is helpful to review the prerequisites for establishing vote dilution as first articulated 
in Thornburg v_ Gingles, 478 U.S. 30 (1986) and later applied to single-member districts in Growe 

v. Emison, 507 U.S. 25 (1993) and Johnson v. DeGrandy, 512 U.S. | 129 L.Ed.2d 775 (1994). 

Vote dilution is demonstrated where the following three preconditions are present: 

a) the minority group “is sufficiently large and geographically compact to constitute a majority 

in a single-member district”, 

b) the minority group “is politically cohesive”, and 

c) “the white majority votes sufficiently as a bloc to enable it ... usually to defeat the 

minoritys preferred candidate.” 

Gingles, 478 U.S. 30, 50-51. In addition. a court must consider all other relevant circumstances, 

including such factors as the extent of any history of official discrimination that affected the right of 

members of the minority group to register, to vote or otherwise to participate in the democratic 

process; the extent to which members of the minority group bear the effects of discrimination in 

education, employment and health which hinder their ability to participate effectively in the political 

process; the extent to which members of the minority group have been elected to public office in the 

jurisdiction; and whether political campaigns have been characterized by overt or subtle racial appeals. 

If, in the totality of circumstances. members of a protected class have less opportunity than other 

members of the electorate to participate in the political process and to elect representatives of their 

choice. then a Section 2 violation has been established. 
InShawv Hunt, US. | 135 LEd.2d 207 (1996), the Supreme Court reiterated that 

“Our precedent establishes that a plaintiff may allege a §2 violation in a single-member district if the 

manipulation of districting lines fragments politically cohesive minority voters among several districts 

." Shaw v_Hunt, 135 L.Ed.2d at 224 The failure to draw a majority-black district in the 

  

  

  

northeastern portion of North Carolina would fragment the politically cohesive black voters who live 

2 

 



  

there. The evidence submitted with these comments demonstrates the Gingles preconditions, as well 
as addresses the factors relevant to the totality of circumstances. 

As you enact a Congressional redistricting plan to remedy the constitutional violation found 
in Shaw v. Hunt, it is helpful to keep in mind the framework for achieving compliance with Section 
2 of the Voting Rights Act while eliminating unnecessary race-based state action, as elaborated by 
Justice O'Connor in her concurring opinion in the Texas Congressional redistricting case, Bush v 
Vera, US. __ | 135L.Ed.2d 248 (1996). Believing that “States and lower courts are entitled 
to more definite guidance as they toil with the twin demands of the Fourteenth Amendment and the 
Voting Rights Act.” Bush, 135 L.Ed.2d at 278, Justice O’Connor emphasized that “it would be 
irresponsible for a State to disregard the §2 results test.” Id., 135 L.Ed.2d at 279. She set out five 

principles to guide state legislatures, summarized as follows: | 

1. States may intentionally create majority-minority districts and otherwise take race into 
account without coming under strict scrutiny as long as they do not subordinate 
traditional districting criteria. 

2 A State is required to create a majority-minority district where the three Gingles 
factors are present. 

3. A State has a compelling interest in avoiding liability under Section 2 of the Voting 
Rights Act. 

4 A redistricting plan that complies with Section 2 by creating a majority-minority 

district that substantially addresses the potential liability is narrowly tailored. 

5. Majority-minority districts that are bizarrely shaped and non-compact, that neglect 

traditional districting principles and that deviate substantially from the hypathetical 

district demonstrating a violation, are unconstitutional. 

See Bush, 135 L.Ed.2d at 280-81.   

II. EVIDENCE OF A SECTION 2 VIOLATION 

The following materials, taken together. demonstrate that there is a strong basis in fact for 

believing that the failure to create a majority-black district in the northeast region of the state would 

violate Section 2 of the Voting Rights Act. 

A. Gingles Preconditions 

The fact that the African-American population in the northeastern portion of the state is 

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

demonstrated by the First District as drawn in both of the new plans currently under consideration. 
The fact that black voters in this region of the state are politically cohesive, and the fact that 

white voters usually vote sufficiently as a bloc to defeat the choice of black voters is demonstrated 

by the racially polarized voting analysis conducted by Professor Richard L. Engstrom of the 

University of New Orleans which is contained in his report entitled “Racial Differences in Candidate 

Preferences in North Carolina Elections.” (Tab 2 in the Ring Binder). In particular, Professor 

Engstrom’s analysis of biracial congressional elections, and the 1992 election in the First District 

demonstrate that there is significant racially polarized voting in this region of the state, and in 

congressional elections. 

 



  

B. Totality of the Circumstances 

Much of the remaining materials address the numerous factors relevant to the question of 
whether the totality of circumstances demonstrates that African-American voters do not have an equal 
opportunity to participate in the electoral process. The volume entitled Defendant-Intervenors’ 
Expert Statements contains the reports of four expert witnesses detailing historical events and social 
science data that demonstrate the compelling need for a majority black congressional district in this 
state. In particular, the report of Harry Watson, Ph.D, entitled “Race And Politics In North Carolina, 

1865-1994" and J. Kousser, “After 120Years: Redistricting And Racial Discrimination in North 

Carolina” extensively detail the history of racial discrimination in politics, its effects on the ability of 

black voters to participate in a political process, the role that race has played in prior congressional 

redistricting, the inability of African-American candidates to be elected to Congress prior to 1992 and 
without running from majority black districts, the use of racial appeals in past election campaigns, the 

attitudes of black and white voters in North Carolina and how they differ, the experiences of black 

candidates who have run for congressional office in majority white districts, and the impact of 

discriminatory practices such as the 1990 postcard campaign targeting black voters. The report of 

Alex Willingham, Ph.D, entitled “Report On Certain Questions Involving Race And North Carolina 

Congressional Redistricting With Reference to the 1990 Round™ also discusses the use of racial 

appeals in recent election campaigns and the political significance of the socio-economic condition 

of black voters in the state. 

Individual witness statements of the following witnesses relates specifically to the experiences 

of black candidates in congressional elections prior to 1992, and the ability of African-American 

candidates to participate in elections in the northeastern portion of this state: 

WITNESS TESTIMONY 

H.M. "Mickey" Michaux Experiences as an African American political 

Durham candidate; racially polarized voting, 1982 

Congressional campaign in Second District; impact 

of race in Durham politics. 

Experiences as an African American political 

Kenneth Spaulding ‘ candidate; racially polarized voting, 1984 

Durham Congressional campaign in Second District; impact 
of race in Durham politics. 

Frank Ballance Experiences as an African American political 
Warrenton candidate; racially polarized voting; rural nature of 

First Congressional District. 

 



Alice Ballance 

Windsor 

Willis Williams 
Jamesville 

James Sears 

Gates County 

Alfred Smallwood 

Gatesville 

Historical exclusion of black voters in Bertie 

County, First Congressional District; ongoing 

segregation; voter intimidation; racially polarized 

voting; black political campaigns; responsiveness 

of Congressional representatives. 

Historical exclusion of black voters in Martig 

County, First Congressional District; voter 

intimidation; ongoing segregation; racially 

polarized voting; black political campaigns; 

responsiveness of Congressional representatives. 

Historical exclusion of black voters in Gates 

County, First Congressional District; ongoing 

segregation; black political campaigns; lack of 

electoral success of black candidates. 

Lack of electoral success of black candidates in 

Gates County, First Congressional District; 
qualifications of black candidates; voter 

registration efforts; importance of representation 

of African American political interests. 

In addition, we are submitting the witness statements of the following witnesses which 

demonstrate that there is a significant community of interest in the Piedmont region of the state: 

WITNESS 

“Joe Alvarez 

Greensboro 

Dennis Rash 

Charlotte 

TESTIMONY 

Textile workers and mills located in the Twelfth 

Congressional District; ways in which the Twelfth 

Congressional District facilitates representation of 
textile workers 

Community economic development in the inner 
cities of the Twelfth Congressional District; 

financial institutions in the District. 

 



  

J.C. Harris ; Association of Baptist Churches centered in the 
Statesville Twelfth Congressional District; communities of 

interest among residents of District; postcard 
campaign in 1990 General Election. 

Jane Burts Postcard campaign in 1990 General Election; voter 
Charlotte registration in Mecklenburg County; urban issues 

in Twelfth Congressional District. 

Ellen Emerson Experience of white voter in Twelfth 

Greensboro Congressional District; racial dynamics of Twelfth 

Congressional District; political interests of 

importance in District; 1990 Postcard Campaign. 

Barney Offerman Responsiveness of Congressional representatives; 

Charlotte urban interests in Piedmont Region; travel within 

the District. 

Exhibits 522 through 524 are copies of postcards that were sent to African-American voters 

during the 1990 North Carolina senatonal election between Harvey Gantt and Jesse Helms. Exhibits 

525 through 531 also relate to the postcard campaign and document the extent of the postcard 

mailing. Exhibit 525 is the Complaint filed in United States v. Republican Party and Exhibit 526 is 

the Consent Order entered in that case Exhibits 528 through 531 document the extent of the 

postcard mailing. Exhibit 569 is a compilation of North Carolina laws that provided for or enforced 

segregation. Exhibit 584 is a report entitled “Racial Attitudes of North Carolinians” a survey 

conducted by Howard. Merrell & Partners. Raleigh. North Carolina on behalf of the Z. Smith 

Reynolds Foundation, Winston-Salem, North Carolina in December, 1993. The survey documents 

differences of opinions among whites and blacks in North Carolina and in particular a gap of the 

perceptions of whites and blacks concerning race relations, racial prejudice and discrimination in 

North Carolina. 

Part of the factual record in the Shaw v Hunt trial consisted of stipulations entered into by 

the parties concerning certain factual data and other matters that were not in dispute. The document 

entitled “Stipulations To Be Offered By Detendant-Intervenors™ contains extensive documentation 

from numerous sources of the socio-economic status of African-Americans as compared to whites 

in North Carolina, as well as data on the extent to which African-Americans are registered to vote 

in comparison to white voters and the extent to which African-American candidates have been 

successful in being elected to public office Additional stipulations of factual information relevant to 

which counties in North Carolina are covered by Section S of the Voting Rights Act and the extent 

to which black candidates have been elected to public office are also submitted herewith. 

Finally we are providing vou with a two-volume bound report of the North Carolina Institute 

of Minority Economic Development, Inc entitled “A Profile of North Carolina’s African American 

and Native American Populations”, issued January 1994, which documents from Census Bureau data 

  

 



  

and other data sources, the precise socio-economic status of African-American citizens in North 
Carolina relative to whites in a broad range of areas including employment, income, health, education, 
housing, business ownership, and poverty levels. This information provides the factual basis for concluding that black voters, to the extent that they continue to suffer the effects of past 
discrimination, are hindered in their ability to participate effectively in electoral politics. 

In light of this evidence, it is necessary to draw a majority black district in the northeastern 
region of North Carolina to avoid violating Section 2 of the Voting Rights Act. Thank you very 
much for the opportunity to present this information for your consideration.