Reply Brief

    No. 4- | 96H 

  

In the 

Supreme Court of the United States 
  

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

V. 

MARTIN CROMARTIE, et al., 

Appellees. 

  

On Appeal from the United States District Court 

Eastern District of North Carolina 

  

REPLY BRIEF 
  

MICHAEL F. EASLEY 

North Carolina Attorney General 

Tiare B. Smiley*, Special Deputy Attorney General 

Norma S. Harrell, Special Deputy Attorney General 

Melissa L. Saunders, Special Counsel to Attorney General 

North Carolina Department of Justice 

Post Office Box 629 

Raleigh, North Carolina 27602-0629 

Telephone: (919) 716-6900 

June §, 2000 *Counsel of Record 

  

 



  

TABLE OF CONTENTS 

TABLEOFAUTHORITIES .............. 50... 111 

1. "THE ‘DISTRICT "COURT 1S OWED NO 

DEFERENCE WHEN IT ATTEMPTS TO 

SUBSTITUTE ITS POLITICAL JUDGMENT FOR 

THAT OF . THE LEGISLATURE AND 

DISTORTS THE EVIDENTIARY RECORD ...... 1 

| A. SUBSTITUTION OF POLITICAL JUDGMENT ...... 1 

B. DISTORTION OF THE EVIDENTIARY RECORD .... 4 

| 

II. REQUIRING NORTH CAROLINA TO HASTILY 

REDISTRICT AND RESTART ITS 2000 

ELECTION PROCESS AT THIS LATE DATE IS 

INEQUITABLE... .. ot... cnt vas «svar nines 7 

  CONCLUSION. . . 0. «ve mrivade sai cs vie oii 10 

  

 



  

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TABLE OF AUTHORITIES 

CASES 

Abrams v. Johnson, 521 U.S. 74 (1997) .............. 10 

Anderson v. City of Bessemer, 470 U.S. 564 (1985) .... 4,5 

Bose Corp. v. Consumers Union of United States, 

466 11.8, 488, S01 (1984)... cas sioner 4 

Fouts v. Harris, 88 F. Supp. 2d 1351 (S.D. Fla. 1999) .... 9 

Hunt v. Cromartie, 526 U.S. 541, 119 S. Ct. 1545 (1999) . 8 

Maxwell v. Foster, No. 98-1378 

(W.D.1La Nov. 24,0000)... cere cocrevinnronmns 9 

Miller v. Johnson, 315 U.8.900(1993) ............. 1,34 

Shawv. Hunt, 3171.8. 899(1996) ...... vu de oie. 8 

Shaw v. Reno, 509 U.S. 630 (1993) .................. 8 

Simkins v. Greshette, 495, F. Supp. 1075 (D.S.C.), 

aff 4,631 F.24287 (4th Cir. 1980) .. civ nines 9 

Thornburg v. Gingles, 478 U.S.30 (1986) ........... 4,5 

United States v. United States Gypsum Co., 

33310.8.364, 39501048)... csisaire cvs rn 5 

White v. Daniel, 909 F.2d 99 (4th Cir. 1990) ........... 9 

 



  

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THE DISTRICT COURT IS OWED NO 

DEFERENCE WHEN IT ATTEMPTS TO 

SUBSTITUTE ITS POLITICAL JUDGMENT FOR 

THAT OF THE LEGISLATURE AND DISTORTS 

THE EVIDENTIARY RECORD. 

A. SUBSTITUTION OF POLITICAL JUDGMENT 

The district court majority’s attempt to substitute its 

political preferences for that of the North Carolina legislature 

is not an “alternative” view of the evidence to which deference 

is owed by this Court. The State’s election procedures, 

including the allocation of power by redistricting, should not 

be subject to interference by the federal court except in 

“extreme instances of gerrymandering.” Miller v. Johnson, 515 

U.S. 900, 928-29 (1995). In this case, the majority has 

resolutely disregarded the political preferences of the State 

legislature and ignored the plenary evidence supporting its 

political explanation for Congressional District 12. The court’s 

political predilections aptly illustrated by a colloquy between 

the judges and plaintiffs’ expert Dr. Weber, in which they 

opined that if a legislator was being purely partisan, that 

legislator would not want to waste votes by making District 12 

overly Democratic.! On cross-examination, Dr. Weber 

  

!  Q. When you say “votes being wasted,” what do you mean? 

A. The sense is when you are doing districts and you have certain 

kinds of outcomes in mind and you have adjacent districts that are 

different in political composition, you might want to take some of 

the voters in the district that you are drawing that’s overly safe and 

put them into adjacent district so as to make that district more 

competitive. 

Judge Boyle: Like handicapping a race. You want to get your 

horses to the finish line ahead of all the other horses.  (cont’d)  



  

  

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continued to opine that from a political scientist’s perspective, 

it did not make sense to create one set of safe districts for one 

party and another for another party because it discourages the 

voter from having a choice in elections; he conceded, however, 

that “[n]o, I never met a politician who would admit their 

district was too safe.” Tr. T. p. 265. 

The district court majority’s insistence that more of 

District 12’s Democratic voters should have been shared with 

District 8, ignores the political dynamics which existed in the 

  

The Witness: Yes, constitutionalbut do it in a way you have voters 

not wasted. 

Judge Boyle: So you are saying rather than handicapping it, they 

are making some sure things. 

The Witness: My sense is District 12 is a sure thing. Again, in the 

challenged plan. 

Judge Voorhees: If a legislator were being purely partisian [sic], 

that legislator would want the optimum 60 percent in a particular 

district and save the overage to help his party in another district? 

The Witness: Yes. The district that might have benefitted from 

that, with the hindsight from the ‘98 election, would have been 

District Eight, in which there was an open seat and there was a seat 

that initially was a Democratic seat, but it turned over to be 

Republican. 

Judge Boyle: If you add 20/20 hindsight, you wouldn’t put so 

many voters that you were targeting in District 12. You might 

have thrown a few over to District Eight and won both elections 

rather than sacrificing District Eight and just winning District 12? 

The Witness: Yes, Sir, that’s exactly correct.” 

Tr. T. pp. 162-63. See also, 1.S. at 116a-117a.   
   



  

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legislature. The court’s substitution of its political judgment 

for that of the legislature is reflected repeatedly in its opinion 

as it questioned the legislature’s choices of which majority 

Democratic precincts (by registration) should have been 

included in District 12. See e.g. J.S. at 13a-14a, 17a, 25a. In 

selecting precincts in Mecklenburg, Forsyth and Guilford 

Counties it contends should have been included in District 12, 

the court fails to note which precincts actually placed in the 

district -- which overall have higher democratic registrations 

than the ones preferred by the court -- should have been deleted 

from the district to maintain one person, one vote requirements. 

It also ignores incumbency considerations in the surrounding 

districts and other traditional districting considerations, such as 

shape and municipal boundaries, all of which influenced the 

design of the district. See J.S. at 204a-205a, 207a-20%a. 

This Court has established a high bar for plaintiffs’ burden 

of proof in a Shaw challenge, a function of this Court's 

traditional reluctance to interfere with the delicate and 

politically charged area of legislative redistricting -- a 

reluctance not shared by the district court majority below. 

“Election districting is a most difficult subject for legislatures, 

and so States must have discretion to exercise the political 

judgment necessary to balance competing interests.” Miller at 

915. See id. at 915-916 (In assessing the sufficiency of a Shaw 

  

2Senator Cooper explained in his testimony the legislature’s political 

judgments in designing District 8 to accommodate its incumbent without 

disrupting the Democratic incumbents farther to the east or the Republican 

and Democratic incumbents to the west in Mecklenburg County. J.S. at 

99a-100a, 117a-118a. 

  

 



  

  

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challenge to a district plan, the courts “must be sensitive to the 

complex interplay of forces that enter a legislature’s 

redistricting calculus”). Because of the sensitive nature of 

redistricting, a “presumption of good faith” must be accorded 

to the State legislature’s political judgments. Id. at 916. 

It cannot be argued that the legislature’s political 

judgments and the district court’s political judgments constitute 

merely “two permissible views of the evidence” where “the fact 

finder’s choice between them cannot be clearly erroneous.” See 

Motion to Dismiss, or in the Alternative, to Affirm (hereafter 

“Mtn. Dis.”) at 11 (citing Anderson v. City of Bessemer, 470 

U.S. 564, 574 (1985)). The clearly erroneous test of Rule 52, 

F.R. Civ. P., ““does not inhibit an appellate court’s power to 

correct errors of law, including those that may infect a so-called 

mixed finding of law and fact, or a finding of fact that is 

predicated on a misunderstanding of the governing rule of 

law.” Thornburg v. Gingles, 478 U.S. 30, 79 (1986) (quoting 

Bose Corp. v. Consumers Union of United States, 466 U.S. 

485, 501 (1984)). Because the majority opinion below is 

infected by political judgments constitutionally left to the State 

legislature, its mixed findings of law and fact are owed no 

deference and appellees’ motion seeking summary dismissal 

of the State’s appeal or affirmance of the judgment below 

should be denied. 

B. DISTORTION OF THE EVIDENTIARY RECORD. 

In , the district court majority wrongly high-jacked 

the State’s congressional elections, requiring the State to hastily 

draw new districts and hold a truncated stand-alone September 

primary election with no run-off primary. No doubt 

embarrassed by this Court’s unanimous reversal of its summary   
   



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judgment ruling, the majority’s review of the evidence in this 

case was colored by its need to justify its earlier decision. 

Under these circumstances, the majority opinion does not 

represent simply an alternative “plausible” account of the 

evidentiary record which this Court may not reverse. See Mtn. 

Dis. at 11 (citing Anderson, 470 U.S. at 574.) Absent summary 

reversal, plenary review of the record in this case is required if 

the State’s direct appeal from the lower court is to be 

meaningful. The district court’s findings can be set aside based 

on its “misunderstanding of the governing rule of law,” 

Thornburg, 478 U.S. at 79, or when “the reviewing court on the 

entire evidence is left with a definite and firm conviction that 

a mistake has been committed.” Anderson, 470 U.S. at 573 

(quoting United States v. United States Gypsum Co., 333 U.S. 

364, 395 (1948)). 

The State in its Jurisdictional Statement has provided 

examples of the majority’s slanted and one-sided view of the 

evidentiary record, as has Judge Thornburg in his dissenting 

opinion. Other examples are highlighted by the appellees’ 

arguments supporting the majority view. Appellees make the 

extraordinary statement that “the record is replete with | 

indications that the State was attempting to keep the African- 

American percentage in the Twelfth District close to, but not 

over, 50%.” Mtn. Dis. at 23. Plaintiffs and the lower court must 

rely almost exclusively on the legislative floor debates to 

support this proposition, since the extrinsic evidence in the 

record fully supports Senator Cooper’s explanation of the 

decision process which resulted in adding loyal Guilford 

County Democrats, many of whom are African-American, to 

District 12, and thereby increasing the percentage of African-   
 



  

  

  

  

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Americans in the district to 46%. See J.S. at 7 n 10. The Court 

has unfairly twisted Senator Cooper’s logical argument that the 

district’s non-majority-minority status has some probative 

value, into a cynical attempt by the legislature to deliberately 

maintain the district’s minority population just below 50%. A 

fair reading of the Senator’s argument, in context, fully 

supports his testimony. See Reply App. at 7ra-11ra. No 

evasiveness or lack of candor, as suggested by appellees, Mtn. 

Dis. at 25 n.34, can be found in the testimony of Senator 

Cooper which can justify the court’s failure to give it credence. 

See J.S. at 104a-107a, 121a-125a, 127a-129a, 135a-136a. 

Similarly, the Senate Committee hearing transcript with 

Senator Cooper speaking in favor of the plan is consistent with 

his later affidavits and testimony. See Reply App. at 1ra-5ra; 

see also J.S. at 103a-104a. He explained the political forces 

guiding the construction of the districting plan, including the 

importance of preserving the “basic core” of the Congressional 

districts. The court majority was apparently persuaded by 

appellees that this reflects a pernicious racial motivation. See 

Mtn. Dis. at 9 n.17. A fair reading of the Senator’s full 

comments to the Senate Committee reveals no predominant 

racial considerations; instead, his comments reflect a sincere 

attempt to correct the constitutional infirmities of District 12 

and the resulting major reconstruction of the district. 

  

' 3 The majority opinion also extrapolates the Cohen e-mail discussion 

of racial percentages in District 1 into a “methodology for segregating 

voters by race” in District 12. J.S. at 27a. However, despite the close 

attention paid to racial percentagesin District 1, the e-mail’s brief reference 

to District 12 actually contains no mention of the racial percentage of 

District 12. See Mtn. Dis. at 7 n.11. 

 



  

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The majority opinion wrongly found District 12 to be 

racially tainted by a “lingering footprint” of the old district. 

See J.S. at 44a. This approach by the lower court, if allowed to 

stand, raises a troubling issue which is going to arise over and 

over again in the next round of districting as State legislatures 

make political and legal judgments on whether and how much 

federal law will permit them to preserve the “core” 

constituencies of incumbents who were originally elected from 

majority-minority districts drawn in the last decade. 

Preservation of “cores” of existing districts is a political 

“norm.” Id. To equate this political reality with unconstitutional 

racial gerrymandering reflects a misunderstanding of the 

governing rule of law, which only this Court can correct. The 

lower court majority’s failure to conduct the careful review of 

the evidentiary record required in redistricting cases, as well as 

its failure to give the State’s evidence fair consideration, 

requires denial of appellees’ motion to dismiss or affirm. A 

review of the entire record can only lead this Court to conclude 

that a mistake requiring reversal has been committed by the 

district court below. 

II. REQUIRING NORTH CAROLINA TO HASTILY 

REDISTRICT AND RESTART ITS 2000 ELECTION 

PROCESS AT THIS LATE DATE IS INEQUITABLE. 

Plaintiffs try to paint defendants as recalcitrant laggards 

whose alleged refusal to redistrict properly should bar any 

consideration of the equitable factors opposing the imposition 

of a new congressional redistricting plan in this year of the 

decennial census. In reality, the delay in resolving this litigation 

is attributable not to any “unclean” hands of defendants, but to 

the developing area of the law and to the trial court’s 

  

 



  

  
  

  

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uncertainties about its application. This case and its predecessor 

have been to this Court three previous times. The first time, 

defendants prevailed in the district court on a motion to 

dismiss, which was narrowly reversed by this Court, in a five 

to four decision, when it announced a new claim for racial 

gerrymandering in districting and apportionment litigation. 

Shaw v. Reno, 509 U.S. 630 (1993) (“Shaw I’). The second 

time, the district court sought to apply the unfamiliar teachings 

of Shaw I and upheld the 1992 congressional plan’s District 12 

on a two to one vote. That decision was reversed, again by a 

narrow five to four majority, in Shaw v. Hunt, 517 U.S. 899 

(1996) (“Shaw II’). The third appeal resulted from the district 

court’s split decision to grant summary judgment to plaintiffs 

holding that District 12 in the 1997 Plan was unconstitutional. 

That decision was reversed unanimously by this Court in Hunt 

v. Cromartie, 526 U.S. 541,119 S. Ct. 1545 (1999). Thus, what 

the defendants must do to meet constitutional requirements in 

this developing area of the law has not been evident to the 

courts: the district courts have split in each of this decade’s 

three decisions involving North Carolina’s congressional 

redistricting plan; this Court reversed the district court by a 

bare majority in both Shaw cases. | 

For plaintiffs to suggest defendants have refused to follow 

clear constitutional mandates insults the district court judges 

and members of this Court who have struggled to resolve North 

Carolina’s congressional districting litigation. Plaintiffs 

seemingly seek to prejudice defendants in the eyes of this 

Court. They apparently do so solely to convince the Court that 

it should not take into consideration the fact that the district 

court has ordered a new plan after candidates have filed and 

 



  

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after campaigning has begun in a year in which the census is 
being compiled, despite the fact that whatever plan is used this 
year will most assuredly not be used for the 2002 congressional 
elections. Yet, courts have recognized repeatedly that the 
imminence of a new census, with a new districting process to 

follow, weighs equitably against requiring a new districting 
plan. Thus, in the 1990 decision of White v. Daniel, the Fourth 

Circuit Court of Appeals noted, “[A]ny reapportionment done 

now would use 1980 census figures, and such reapportionment 

might not provide fair and accurate representation for the 
citizens of the County.” 909 F.2d 99, 104. See also Simkins v. 

Greshette, 495 F. Supp. 1075, 1082 (D.S.C.), aff'd 631 F.2d 
287 (4th Cir. 1980) (If reapportionment were ordered, “such [a] 

plan would, of necessity have its basis on the 1970 census 

figures, which are now ten years out of date. There is little 

likelihood that such a plan would provide fair representation for 

the people . . . .”); Fouts v. Harris, 88 F. Supp. 2d 1351, 1354 

(S.D. Fla. 1999) (citing White as to unduly prejudicial nature of 

using 1990 census figures and for principle that two 

reapportionments so close together would be burdensome and 

would cause instability and dislocation in electoral system); 

~ Maxwell v. Foster, No. 98-1378, slip op. at 6-9 (W.D. La. Nov. 

24, 1999) (also citing White for principle that two 

  

* Plaintiffs assert that defendants’ counsel accused plaintiffs of laches 

during closing argument before the district court. Mtn. Dis. at 28 n.35. In 

fact, defendants’ counsel tried to point out that cases dealing with laches 

also address principlesrelevant to this case -- that redistricting at the end of 

the decade may be equitably disfavored because of the confusion generated 

by repeatedly changing districts and because of inaccuracy of the data from 

the old census. Those principles apply as strongly here as in laches cases. 

 



    

  

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reapportionments in two years would be disruptive and 

burdensome). Three years ago, this Court observed that 

“equitable considerations disfavor requiring yet another 

reapportionment” when the census data on which the State 
  

would have to rely were more than six years old and thus no 

longer accurate. Abrams v. Johnson, 521 U.S. 74, 101 (1997). 

In the year 2000, with the census data ten years old and even 

less accurate, the “equitable considerations disfavor[ing] 

requiring yet another reapportionment,” id., militate even more 

strongly against the district court’s decision requiring a new 

plan at this late date. To require yet another plan now would 

halt the electoral process long after it began, after the primaries 

have been held. It would require not only a different plan, with 

new candidate filings and new districts for candidates and 

voters to learn, but also a truncated election schedule. Such a 

schedule would be likely to duplicate the atrocious turnout of 

the 1998 elections held after the district court wrongly required 

the State to adopt a new plan based on its summary judgment 

order that this Court eventually reversed unanimously. This 

Court should not subject the people of North Carolina to such 

a confusing and constantly changing procedure for electing 

their congressionalrepresentatives. The district court’s decision 

should be summarily reversed on the grounds that requiring a 

new congressional districting plan in 2000 is contrary to all 

sound equitable and remedial principles.   
CONCLUSION 

For the foregoing reasons, as well as those presented in 

the State’s Jurisdictional Statement, this Court should deny 

Appellees’ Motion to Dismiss, or in the Alternative, to Affirm. 

  

 



June $5, 2000 

11 

MICHAEL F. EASLEY 

North Carolina Attorney General 

Tiare B. Smiley*, 

Special Deputy Attorney General 

Norma S. Harrell, 

Special Deputy Attorney General 

Melissa L. Saunders, Special Counsel 

*Counsel of Record 

 



  

    

REPLY APPENDIX 

Transcript of February 20, 1997 Meeting of Senate | 

Committee on Congressional Redistricting, | 

97C-28F-4F(2) (Exhibit 100 excerpt) ............... Ira 

Complete Text of Senate Floor Speech by Senator 

Roy Cooper: March 27, 1997, Floor Debate of 

HB 586, 97C-28F-4F (2) (Exhibit 100 excerpt) ........ Tra 

 



  

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TRANSCRIPT OF FEBRUARY 20, 1997 MEETING OF SENATE 

COMMITTEE ON CONGRESSIONAL REDISTRICTING, 

97C-28F-4F(2) (EXHIBIT 100 EXCERPT) 

[Senator Cooper:] For the elections beginning in 1992, the 

General Assembly drew the current Congressional districts, 

which you see, some of the maps around have the current 

districts which are up there. The General Assembly first sent 

a plan to the Justice Department with one minority district in 

the northeast. That plan was rejected by the Justice Department 

with the instruction that another minority district was needed 

in the State of North Carolina. The result was the current plan 

that we have now. This is an overall recap of the current plan. 

Currently, we have 46 counties which are split, we have six 

counties which have three members of Congress, an issue that 

the Supreme Court found particularly problematic. We have 

several districts with clearly irregular shapes and we have a 

situation where over a 100 precincts are split. Although lower 

federal courts held this plan constitutional, the United States 

Supreme Court in a 5-4 decision declared specifically the 12" 

Congressional District to be unconstitutional. There are 

different interpretations of that decision and other decisions. 

The bottom line interpretation is that race cannot be the 

. predominate factor in redistricting and that if race is used, 

districts must be reasonably compact. Of course, the standard 

of reasonably compact is open to interpretation. Quoting from 

the Court, the Court wrote that the standard is not the least 

possible amount of irregularity, but the districts must be 

reasonably compact and regular. 

  

  

 



  

  

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We had a challenge in trying to draw a plan and we have a 

challenge ahead of us. In seeking to draw a plan to present to 

this Committee, Plan A you have there, the following issues 

were considered. First, geographic fairness, second, reasonable 

compactness, third, communities of interest, fourth, racial 

fairness, five, reasonable political fairness, six, precinct 

boundaries, seven, county boundaries when reasonably 

possible, eight, the core geographic area of the current districts 

and their incumbents, ninth, the potential to achieve consensus 

within this chamber and within the House chamber and tenth, 

and probably most importantly, the constitutionality of the 

‘plan. 

This plan took all of those factors into consideration. As a 

result, this plan is fair and workable. It will please everyone 

somewhat and no one completely. This is an overall 

description of the plan: First, it reduces from 46 to 24 the 

number of counties which are split into two Congressional 

districts. There are 24 counties that are split, bringing it down 

from 46, cutting the number almost in half. It reduces from 6 

to 0 the number of counties which have three members of 

Congress. As I said earlier, the Court had problems with this. 

Under the prior plan we had six counties with three members 

of Congress and now we have none. It uses as a foundationthe 

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. I want to go over a 

brief description - and you have it in your package - but a brief 

description of the plan as follows: Here is the first district - as 

you can tell from this plan, the first district went way down into   
    

 



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what is currently the 3%, the 7" and the 2" and intentionally 

sought out minority population. This district is now much 

more compact and it contains 50.11% minority overall 

population. The 2™ district is here, in the green striped, it has 

the basic core of the current 2™ district. The 3™ district is a 

local district, basically as it was before. You have to have a lot 

of land mass when you are in the 3" district to get 552,000 

people, but that is out here. The 4* district is pretty much the 

Research Triangle Park. It covers all of that area with Orange, 

Durham County wholly in the 4™ district and part of Wake 

County. The 5* district along this part of the state, is relatively 

unchanged. The 6% district here, there is not a whole lot of 

change to that in the Guilford County area. The 7* district 

down here is relatively unchanged. It moves north a little bit 

and one of the reasons for that is that - the main reason for that 

is that the 1* district had a lot of area in this - down here at the 

bottom of the southeast and so you had to come a little bit north 

to get the population. The 8" district here is relatively 

unchanged. I know there a few changes, but when you make 

changes in one district, you pretty much have to make changes 

in all the areas. The 9% district here . . . relatively unchanged. 

The 10™ district here, relatively unchanged. The 11™ district - 

much more compact. You can see it is somewhat jagged here. 

We used county lines to make the 11* district compact. And 

here the 12% district from Greensboro to Mecklenburg. 

Let me talk just a little bit about the 12* district because that 

was the district which was held to be unconstitutional by the 

Court. In Congressional Plan A, I believe the 12* district is 

constitutional as drawn and I will tell you why. Firstit is much 

    

  

  

   



  

  

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more compact. It is 67% shorter in length than the current 

district. You can drive it in about 2 hours - from Greensboro 

to Charlotte. 

Senator Winner: An hour and a half 

Senator Cooper: An hour and a half - well I was thinking the 

very southern end of Mecklenburg. Let's go back and look at 

the Insider again and check on Senator Winner. (laughter) 

Senator Cooper: It is the third shortest district in the state - the 

only districts which are shorter in length are the 4 and the 10™. 

It covers 6 counties instead of the 10 counties that it covered in 

the past. It connects the metropolitanareas of Charlotte and the 

metropolitan area of the Triad. It is much wider. One of the 

main problems the Court had with the 12* district was that it 

went long stretches with not covering any people at all. 

.. . just go down the highway and not have anybody and just 

have a thin point of continuity along the Interstate. Here in 

every place but one, the districtis 2 precincts wide, at least and 

much more - much wider in other areas. Only one area is one 

precinct wide and that is a very wide precinct. It takes into 

consideration the incumbent and the overall political balance. 

It is 47.09% minority, it is not a majority/minority district, but 

it is a minority influenced district. 

Members of the Committee, I believe that this is a fair plan. 

You know - there will be questions about the partisan issue. I 

am no fortune teller. We have some results from 1988 and 

1990 races that are in the computer. We are now dealing with 
    
  

  

   



  

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7 years later. It is very difficult to tell. I believe that all 12 of 

the incumbents would have an excellent opportunity to win 

each one of these districts. We are not drawing the districts for 

incumbents. We are trying to draw a plan that will get 26 votes 

in the Senate and 61 votes in the House. And I believe that we 

have a plan that all 12 of the incumbents should be able to live 

with because we have not dramatically altered the geographic 

nature of their districts. 

What I want to do now is open the floor for questions from the 

Committee and questions, comments - I shared with you 

previously, most of you on the Committee the Plan and I want 

to open the floor up for questions or discussion at this time. 

    

    

  

  

   



  

  

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COMPLETE TEXT OF SENATE FLOOR SPEECH BY SENATOR 

RoY COOPER: MARCH 27,1997, FLOOR DEBATE OF HB 586, 

97C-28F-4F (2) (EXHIBIT 100 EXCERPT) 

Reading Clerk: H.B. 586, A BILL TO BE ENTITLED AN 

ACT TO DIVIDE NORTH CAROLINA INTO TWELVE 

CONGRESSIONAL DISTRICTS, reported favorably. 

President: Senator Cooper is recognized to explain the bill. 

Senator Cooper: Thank you, Mr. President, members of the 

Senate. Today we have a congressional redistricting plan that 

splits forty-six (46) counties, that has six (6) counties which 

have three members of Congress, and which splits over 

eight [sic] (80) precincts. The plan we have today has some 

social merit. As a result of this plan, for the first time in many, 

many years, we have two minority members of Congress as a 

result of the current plan. However, we have a plan that is a 

geographic mess. I have, for your viewing pleasure if you want 

to call it that, had placed on your desks a copy of the current 

map so that you can see how difficult it is for people to know 

in which Congressional district they reside. Last year, the 

United States Supreme Court ordered the Legislature to redraw 

the map as a result of the 12* Congressional District being 

declared unconstitutional. Now there are arguments for and 

against this decision. In fact, the Court found it close. It was 

a 5-4 decision and one of those Justices sort of wavered back 

and forth - Justice O’Connor. But the result was that the 12" 

District was held unconstitutional by a 5-4 decision and we 

were ordered by April 1 to come up with a new map. When 

this process began, we had a House controlled by the 

    

  

  
  

  

  

  

 



  

  

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Republican Party and a Senate controlled by the Democratic 

Party and people were saying that it couldn’t be done, that we 

could not reach an agreement. In fact, other states which had 

been ordered by the Court to redraw their plans under similar 

circumstances, other states have been unable to agree on a plan. 

I want to commend all of those who have been involved in this 

process because we have agreed on a plan - a plan that is fair 

and workable. You have the plan on your desk, it is entitled 

“97 House/Senate Plan A.” This plan reduces the number of 

counties that are split from forty-five (45) [sic] to twenty-two 

(22). There are now only 22 counties split under this plan. It 

reduces the number of precincts split from over eighty (80) to 

two (2) and those two precincts have special circumstances 

with satellite annexations, etc. and are split under most other 

plans as well. You have a plan which provides for geographic 

compactness, provides for consideration of community of 

interest, and provides for fair partisan balance. I think that all 

of the congressional districts would be competitive. However, 

it is likely that, if political fortunes remain the same, that we 

would end up with a plan that would elect six Democrats and 

six Republicans. We said from the beginning in the Senate that 

in 1996 the people made a decision to elect six members of 

Congress from the Democratic Party and six members of 

Congress from the Republican Party and we should not use 

court-ordered redistricting to alter that result. Therefore, we’ve | 

come up with the plan that you see before you. In considering 

the plan, we looked at community of interest, looking at | 

keeping precincts whole, at keeping counties whole as much as 

possible. We looked at making sure that no counties had more 

than two members of Congress representing the county. We   
  

 



  7} ESR TEAR RA CINEREA RHE WA Pr Pe 

Ora 

looked at racial fairness. Let me tell you a little bit about the 

I* and the 12" Districts because the unconstitutionality of the 

12" District is the reason why we are here. You have the 

statistics on your desk, but the I** District is majority minority, 

total population 50.27%. However, let me emphasize that race 

was not the predominate factor in drawing the I Congressional 

District. We have a district that has ten whole counties and ten 

split counties. It's a district which respects the rural agrarian 

nature of the northeast. It is a district which, I believe, that a 

minority member of Congress or even a minority challenger 

would have an excellent chance to be re-elected, but I believe 

the 1* District not only is constitutional, but also complies with 

the Voting Rights Act which is also a responsibility we have 

with this plan to have it pre-cleared by the Justice Department 

and held constitutional by the Courts. The 12% District is 

almost 47% majority minority. Currently, the 12% District 

under our current plan is majority minority. I believe that this 

new 12% district is constitutional for several reasons. First, and 

maybe most importantly, when the Court struck down the 12% 

District it was because the 12 District was majority minority 

and it said that you cannot use race as the predominate factor 

in drawing the districts. Well guess what! The 12% 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 it is constitutional. That 

makes an eminent amount of sense because what is the cut-off 

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 

  

  
  
  

  

  
  

     



  

  

  
  

10ra 

you will, on the 12* 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 we should look at the criteria 

outlined in Shaw vs. Hunt, you need to look at what the, how 

we have improved the shape of the 12% District. First, it is 

much more compact. It is 67% shorter in length than under the 

old plan and you 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 six (6) counties instead of ten (10), it connects the 

metropolitanarea 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 of those reasons, I believe that the 12% District will be 

held constitutional. Members of the Senate, redistricting is a 

difficult process - I don't want this job again, but I believe that 

we have been able to overcome partisan politics and we have 

been able to reach a plan that is fair to the people of North 

Carolina, and fair to all involved. The House agrees. 

Yesterday, the House voted unanimously in favor of this plan - 

87-30. Of those 87 members who voted “yes”, 52 were 

Republicans and 35 were Democrats. That is a good strong 

bipartisan show of support for this plan. I believe that this plan 

is acceptable to all of the members of Congress. There are a 

couple who have stated objectionsabout the way that some area 

had been moved around, but as far as the partisan nature of the 

districts is concerned, we have preserved the current partisan 

     



11ra 

nature of each of the districts and for that reason, I think that all 

of the incumbents are satisfied. And let me emphasize to you 

that this is not an incumbent protection plan. This is a plan that 

attempts to preserve the partisan nature of each of the twelve 

districts as they now exist. I believe that we’ve done that with 

this plan. Members of the Senate, I encourage you to vote for 

this plan. We have a responsibility as a legislature to draw a 

plan. It’s easier politically to say “let the courts do it”, but 

that's rolling the dice. Number one, you don't know what you 

are going to get and, number two, it is shirking our 

responsibility as representatives of the people to do what the 

Court has ordered us to do. We may not like everything about 

the plan, there are some parts of the plan that I wish I could 

change, but the process of negotiations require give and take. 

That’s what has happened here. I think we have a result that is 

fair and equitable for all of the people of North Carolina and I 

encourage your “yes” vote. Thank you. 

    

  

    

  
  
  

 



  

  
  

  

I, Tiare B. Smiley, Special Deputy Attorney General, a member of the bar of this Court and 
counsel of record for State appellants in this case, hereby certify that all parties required to be served 
the Reply Brief have been served, and more particularly, that I have on this 5th day of June, 2000, 
deposited copies of this document in the United States mail, first-class postage prepaid, addressed 
as follows: 

No. 99-1864 

In the 

Supreme Court of the United States 

  

JAMES B. HUNT, JR., IN HIS OFFICIAL CAPACITY AS 

GOVERNOR OF THE STATE OF NORTH CAROLINA, et al., 

Appellants, 

V. 

MARTIN CROMARTIE, et al., 

Appellees. 

  

REPLY BRIEF 

  

CERTIFICATE OF SERVICE 

Robinson O. Everett 

Suite 300 First Union Natl. Bank Bldg. 

301 W. Main Street 

P.O. Box 586 

Durham, NC 27702 

phone: 919-682-5691 

Adam Stein 

Ferguson, Stein, Wallas, Adkins, Gresham, Sumter, P.A. 
312 W. Franklin St. 

Chapel Hill, NC 27516 

phone: 919-933-5300 

 



Todd A. Cox ; 

NAACP Legal Defense & Educational Fund, Inc. 
1444 1 Street NW, 10" Floor 

Washington, DC 20005 

phone: 202-682-1300 

This the 5th day of June, 2000. 

7 5 ond 
iare B. Smiley 

Special Deputy Attorney Gengral 

N.C. Department of Justice 

P.O. Box 629 

Raleigh, N.C. 27602 

(919) 716-6900