Reply Brief

    i 

QUESTIONS PRESENTED 

Should the appeal be dismissed because appellants have 
not properly preserved the constitutional 1ssues for 
review by this Court? 

Were appellees free to challenge the 1997 redistricting 
plan because appellants failed to plead claim preclusion 
by reason of an earlier judgment in a different action, 
the appellees were not in privity with the parties to that 
action, and the earlier judgment expressly allowed 
actions to challenge the 1997 plan? 

May a three-judge district court enter summary 
judgment that a redistricting plan is unconstitutional 
when undisputed evidence as to the shape of a 
challenged district, its violation of traditional race- 
neutral redistricting principles, and the racial 
demographics of that district establish clearly that a 
racial purpose was predominant in its creation? 

Even though not majority-black, is a congressional 
district subject to strict scrutiny under the Equal 
Protection clause when its irregular shape, its use of 
“white corridors” to link three urban concentrations of 
African-Americans, and its violation of race-neutral 
redistricting criteria combine with other evidence to 
establish clearly that race was the primary motive for its 
creation? 

 



  

i1 

TABLE OF CONTENTS 

  

  

  

  

  

  

  

  

  

  

  

  

  

TABLE OF AUTHORITIES . Li... ous vis 111 

COUNTERSTATEMENTOFTHECASE ............. 2 

A. The 1092 Redistricting Plan... .... cao. 2 

B. The 1997 Redistricting Plan... ........... 5 

Ee] Si The 1998 Redistricting Plan... .......... 7 

SUMMARY OF THE ARGUMENT ......... x, 8 

ABGLIMENT or iad smi oe 0 10 

I THE APPEAL SHOULD BE DISMISSED 

ASNONJUSTICIABLE ........ 0. ...i0 0. 10 

II. APPELLEES WERE NOT PRECLUDED 

FROM CHALLENGING THE 1997 

REDISTRICTING PLAN co... uu. cabs 14 

A. Appellants’ assertion of claim 

preclusion is untimely and should be 

distegarded Es LIE 14 

» B. The Shaw plaintiffs were not privies or 

“virtual representatives’ of appellees .... 15 

Cc. The district court conducting the 

remedial phase of Shaw v. Hunt 

specifically provided in its order and 

opinion that its decision only applied 

to the plaintiffs and claim identified by 

the Supreme Court before remand . ...... 18 
  

THE DISTRICT COURT PROPERLY 

GRANTED SUMMARY JUDGMENT ON 

THE UNCONSTITUTIONALITY OF 

DISTRICHER1Y. rn si eins viii snd 19 

   



111 

A. The shape and demographics of 

District 12 and its disregard of 

traditional redistricting principles 

prove the predominantly racial motive ... 21 

  

  

  

  

B. Direct evidence confirms the 

predominantly racial motive in 

  

  

  

drawine District 12... 2 ii bo 3 

IV. DISTRICT 12 IS SUBJECT TO STRICT 

SCRUTINY UNDER THE EQUAL 

PROTECTIONCLAUSE:.  .. iv 29 

CONCLUSION =. 2. 0 i rane =n gh 30 

 



  

1v 

TABLE OF AUTHORITIES 

CASES: 

Aleyska Pipeline Serv. Co. v. U.S. E.P.A., 856 F.2d 309 

DC. Cit 1988) nh ads Si hh 20 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ... 20 

@®.... v. United Farm-Workers Union, 442 U.S. 289 

(979) oth i Ee i EE 10 

Benson and Ford, Inc. v. Wanda Petroleum Co., 833 F.2d 

72 Gh CH I987Y. oo. i as amon), 16 

Blonder-Tongue Lab., Inc. v. University of Ill., 402 U.S. 313 

(I971). Fe. seas 14 

Bush v. Vera, 116S5.Ct. 1941 (1996) .......... 26,29. 30 

Cromartie v. Hunt, 118 S.Ct. 13101998) ............. 7 

“up v. County of Sac, 94 1.8..351 (1876) ........ 15 

Crowe v. Cherokee Wonderland, Inc., 379 F.2d 51 (4th Cir. 

FOBT) 5. ive cits Ti Bi aie a a Ei 14 

Daly v. High, No. 5:97-CV-750-BO (E.D.N.C.) .... 6,7,12 

Explosives Corp. of Am. v. Garlam Enters., 817 F.2d 894 

(1st Cir. 1987) 

Hansberry v. Lee, 311 US.32(1940) ................ 15 

Inre Shaw etal. 313 U.8.1045(1996) .... couse... 5 

   



Vv 

Jaffree v. Wallace, 837 F.2d 1461 (11th Cir. 1988)... . .. 16 

Kern Oil & Ref. Co. v. Tenneco Oil Co., 840 F.2d 730 (9th 
Cir.), cert. denied, 488 U.S. 948 (1988) ........ 14 

Lawyer v. Department of Justice, 117 S. Ct. 2186 
997. sr Ee LEA 24,29 

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 
57441086)... 0. i. i i ee 19 

Miller v. Johnson, 515 U.S. 900 (1995) ........2.3,29, 30 

Nardone v. United States, 308 U.S. 338 (1939) ......... 19 

Pope v. Blue, 809 F. Supp. 392 (W.D.N.C. 1992), aff'd, 506 
U.S. 301.99). cade i nih a 3 

Raines v. Byrd 1178. CL 2312 (1990)... .. ou uivii iain 9 

Ross v. Communications Satellite Corp., 759 F.2d 355 (4th 
Cir 1088) cats su. nai on a, 20 

Royal Ins. Co. of Am. v. Quinn-L Capital Corp., 960 F.2d 

1286S Cir, ¥992), «our Sour rh el 16 

School Bd. of the City of Richmond v. Baliles, 829 F.2d 1308 

(GthCir 1987)... a. a, 19 

Shaw v. Barr, 808 F. Supp. 461 (1992), rev'd in part, 509 

U.S. 6300199). Lie. 50. uu oe a Es 3 

Shaw v. Hunt (E.D.N.C. Sept. 12,1997) .......... passim  



  

Vi 

Shaw v. Hunt, 517 U.S. 89901996)... J. ..0cus... passim 

Shaw v. Hunt, 861 F. Supp. 408 (E.D.N.C. 1994) ........ 4 

Shaw v. Reno, 509 U.S. 6301993) .............. 3,24, 29 

State. Wall, 271 SE24363 (NC. 1967) ...... 0. .., 11 

@... v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 
LE 8 TR (WEL GR el ERR Ne 19, 27 

Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986) ....... 30 

Totalpan Corp. of Am. v. Colborne, 14 F.3d 824 (2d Cir. 
yt EE BR STR SEE el TL a a 14 

Valley Forge Christian College v. Americans United for 
Separation of Church and State, Inc., 454 U.S. 464 
O82): sa. sir. Ee LE 9 

White v. American Airlines, Inc., 915 F.2d 1414 (10th Cir. 

19000 ial Nr eg 14 
® 

Wong Sun v. United States, 371 U.S. 471 (1963) ....... 19 

CONSTITUTIONAL PROVISIONS: 

US. Const, At. TL $2... ove. Jah incon a 8,9 

RULES: 

Fed. R.Civ. Proc. 42a) .. om uni as vel 18 

Fed. R. Civ: Proc. 36K) =. sr ar. ol a va. 19 

Fed. B.Civ. ioc. Sle ot. v's ei ay. wh eT 13 

   



Vil 

Fed R.Bvid. 200... oan. ooo St Doman 20 

STATUTORY PROVISIONS: 

1997 N.C. Sest. Laws 1997-11 = a oe 0 11 

1997 N.C. Sess. Laws 1998.7 i on 0 ok 10-12 

BUS.C 31283 0 oy ah ma a 8 

2US.CRI973b vn i es a aE Ly 2 

TREATISES: 

18 C. Wright, et al., Federal Practice & Procedure § 4405 
(Supp. 1908) raids a Rs ae 14 

18 James Moore, et al., Moore's Federal Practice 
$13140[1)(3ded. 1908)... .... = Lo 15 

18 James Moore, et al., Moore’s Federal Practice 
$131.50iS1(3ded. 1098) 4... .. yi oi an 14 

Wigmore, Evidence §§ 1040, 1060 (1972ed.) ....... 28 

 





No. 98-85 
  

IN THE SUPREME COURT OF THE 

UNITED STATES 

October Term, 1997 

  

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. 

  

ON APPEAL 

FROM THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

  

MOTION TO DISMISS OR, 

IN THE ALTERNATIVE, TO AFFIRM 

  

Pursuant to Rule 18.6, appellees move to dismiss the 

appeal on the ground that appellants have failed to present any 

justiciable issue for review by this Court, or, in the alternative, 

to affirm the judgment sought to be reviewed because the court 

below properly granted summary judgment and appellants have 

not raised a substantial question meriting review by this Court.  



  

2 

COUNTERSTATEMENT OF THE CASE 

To provide the Court a better perspective as to the 

issues appellants seek to raise, appellees (plaintiffs below) 

submit their Counterstatement. It begins with the racially 

gerrymandered 1992 North Carolina redistricting plan, which 

this Court held unconstitutional in Shaw v. Hunt, 517 U.S. 899 

(1996) (hereinafter “Shaw IT). 

A. The 1992 Redistricting Plan 
  

In response to the 1990 census, which revealed that 

North Carolina was entitled to an additional congressional seat, 

the General Assembly enacted in 1991 a redistricting plan that 

included a single majority-black district. The Department of 

Justice, relying upon its erroneous ‘“maximization” 

interpretation of Section 5 of the Voting Rights Act, 42 U.S.C. 

§ 1973b, see Miller v. Johnson, 515 U.S. 900 (1995), denied 
preclearance of this redistricting plan because it lacked a 

second majority-black district. Soon thereafter, in January 

1992, the General Assembly enacted a new plan, which 

contained two majority-black districts — the First and the 

Twelfth. Each had a “bizarre” shape, as did several other 

@:ce The First District was in the northeastern part of 
orth Carolina, where the percentage of African-Americans in 

the total population is greatest. The Twelfth District wound in 

a “serpentine” manner through the Piedmont region, following 

generally along highway I-85 from Gastonia to Durham, and 

used “white corridors” to connect concentrations of black 

citizens in Gastonia, Charlotte, Winston-Salem, Greensboro, 

High Point, and Durham. The Department of Justice swiftly 

precleared this plan. 

Under the auspices of the Republican Party, a 

constitutional attack was launched against this plan on the 

ground that it was a political gerrymander intended to assist 

Democrats. This challenge was promptly rejected by a three- 

   



~ 
be 

judge district court. See Pope v. Blue, 809 F. Supp. 392 
(W.D.N.C. 1992), aff'd, 506 U.S. 801 (1992). At this time the 
state defendants were asserting that the plan could not be 
attacked as a political gerrymander because it actually was 
based on race and resulted from preclearance requirements of 
the Department of Justice. 

Shortly after this challenge had failed, five registered 
voters in Durham, North Carolina — a city bisected by the 
Twelfth District — filed suit against various federal and state 
defendants. They alleged that the 1992 redistricting plan was 
motivated by race and was enacted to assure the election of 
African-Americans to Congress from the First and Twelfth 
districts." As to the state defendants, the action was predicated, 
inter alia, on a violation of the plaintiffs’ right to equal 
protection under the Fourteenth Amendment — a claim which 
this Court later recognized as “analytically distinct.” Shaw v. 
Reno, 509 U.S. 630, 652 (1993) (hereinafter “Shaw I"); Miller, 
515 U.S. at 911. After the three-judge district court dismissed 
the suit as to all the defendants,’ the plaintiffs — one of whom 
acted as their attorney — appealed to this Court, which noted 
probable jurisdiction. When the appeal was subsequently 
argued before the Court, counsel for the state-defendants 
readily acknowledged that the redistricting plan was based on 
race.’ 

  

'Of course, each of these two representatives would be a Democrat 
since 95% or more of the African-Americans in North Carolina are 
registered as Democrats. 

*See Shaw v. Barr, 808 F. Supp. 461 (1992), rev'd in part, 509 
U.S. 630 (1992). 

’See oral argument in Shaw I, Tr. at 14, 22 (“[ T]he North Carolina 
General Assembly intentionally created two majority-minority congressional 
districts.” ... “There’s no dispute here over what the state’s purpose is. 
There’s a dispute over how to characterize it legally, but we're not in a 
disagreement over what the state legislature was trying to do” (H. Jefferson 
Powell, on behalf of the state appellees)).  



  

4 

After this Court reversed the lower court and remanded 

the case for trial, see Shaw I, the state defendants radically 

changed their position and claimed that, although considered by 

the General Assembly, race had not been a predominant motive 

in drawing the two challenged districts. Although these 

districts obviously were not “geographically compact,” the 

defendants insisted that they were “functionally compact.” 

2 the District Court readily concluded that both 

stricts were race-based — although a majority of the three- 

judge court held that the two districts could survive strict 

scrutiny. See Shaw v. Hunt, 861 F. Supp. 408 (E.D.N.C. 1994), 

On appeal by the plaintiffs to this Court, the defendants 

continued to assert that neither the First nor the Twelfth District 

was motivated by race.” However, on June 13, 1996 the Court 

held that the creation of the Twelfth District had been 

motivated predominantly by race and that, contrary to the lower 

court’s decision, this district could not survive strict scrutiny 

since it was not “narrowly tailored.” Shaw II. Because none of 

the plaintiff-appellants in that case were registered to vote in 

the First District, the Court ruled that they lacked standing to 

challenge that district and therefore its constitutionality would 

ot be decided. See id. at 904. The case was remanded for 

rther proceedings. 

Shortly thereafter, Martin Cromartie and two other 

persons filed suit in the Eastern District of North Carolina to 

challenge the First District as an unconstitutional racial 

gerrymander. Since all three plaintiffs were registered to vote 

in that district, they clearly had standing under Shaw II. 

  

“See Defendant-Appellants’ Appendix at 61a (hereinafter “App.”). 

The Justices will probably recall the much larger map of the 1992 plan 
which was lodged with the Court and used by counsel for plaintiff-appellants 

in the oral argument of each Shaw appeal. 

Because the five plaintiffs were white, the state defendants also 

contested the ruling of the three-judge district court that they had standing. 

   



— 

J 

Meanwhile, the successful appellants in Shaw IT were seeking 
without success to persuade the General Assembly to enact a 
new redistricting plan for the 1996 elections. Those plaintiffs 
also were unable to convince the three-judge district court that 
it should draw a redistricting plan for the 1996 elections unless 
the General Assembly promptly did so.® However, the district 
court did rule that unless the Legislature drew a new plan by 
April 1, 1997, the court would itself do so. In light of the 
developments in the Shaw litigation, Cromartie and his fellow 
plaintiffs agreed to a stay of proceedings in their action. 

B. The 1997 Redistricting Plan 

On March 31, 1997, the General Assembly enacted a 
new redistricting plan whereunder Durham County was 
removed from the Twelfth District. Since all five Shaw 
plaintiffs resided in Durham, they no longer were registered to 
vote in the Twelfth District; and so under Shaw II they lacked 
standing to challenge that district.” After the Department of 
Justice granted preclearance of the 1997 plan, the three-judge 
district court entered an order on June 9, 1997 directing the 
Shaw plaintiffs to advise the court within ten days “whether 
they intend to claim that the plan should not be approved by the 
court because it does not cure the constitutional defects in the 
former plan and to identify the basis for that claim.” App. at 
181a—182a. In their response, the plaintiffs stated their view 
that the 1997 plan had continuing constitutional defects, but 
forthrightly they pointed out that “due to their lack of standing, 

  

  

°See Judgment in Shaw v. Hunt (No. 92-202-CIV-5-BR, filed July 
31, 1996). Like most of the rulings of that court, it was by divided vote. 
Subsequently, the Shaw plaintiffs were unsuccessful in seeking a writ of 
mandamus from this Court to require the district court to adopt a remedial 
plan for the 1996 elections. In re Shaw et al., 518 U.S. 1045 (1996). 

"Moreover, unlike the 1992 plan, Durham County was not divided 
and was placed in a geographically compact District 4. See App. at 59a.  



  

6 

any attack on the constitutionality of the new redistricting plan 

should be undertaken in a separate action maintained by 
persons who have standing.” Id. at 186a. 

The subsequent memorandum opinion entered by the 

district court on September 12, 1997 (id. at 159a-168a) 

approved the plan but specifically stated: 

[W]e close by noting the limited basis of 

» the approval of the plan that we are empowered 

to give in the context of this litigation. It is 

limited by the dimensions of this civil action as 

that is defined by the parties and the claims 

properly before us. Here, that means that we 

only approve the plan as an adequate remedy 

for the specific violation of the individual equal 

protection rights of those plaintiffs who 

successfully challenged the legislature’s 

creation of former District 12. Our approval 

thus does not — cannot — run beyond the plan’s 

remedial adequacy with respect to those parties 

and the equal protection violation found as to 
former District 12. 

é- at 167a. 

In October 1997, the district court dissolved the stay 

order entered previously in the Cromartie action; and an 

amended complaint was filed, which added plaintiffs from the 

Twelfth District and additional plaintiffs from the First District. 

The state defendants obtained a short extension of time to 

answer and filed a motion in Shaw v. Hunt to consolidate with 

it the action that had been filed by Cromartie as well as a 

different action, Daly v. High, No. 5:97-CV-750-BO 

(ED.N.C.),> which challenged both North Carolina’s 

  

*The case is now captioned Daly v. Leake and will be referred to 

hereafter as Daly. 

   



7 

redistricting plan and its legislative reapportionment. This 
motion was denied by the Shaw three-judge court. See 
Plaintiff-Appellees’ Appendix at 1a (hereinafter “P-A App.”). 

On January 15, 1998 Cromartie’s action was assigned 
to the three-judge district court which was considering the Daly 
case.” Thereafter, the court proceeded quickly to hear 
conflicting motions for summary judgment filed by the 
Cromartie plaintiffs and the State defendants. The court 
rendered summary judgment against the defendants and 
enjoined use of the 1997 redistricting plan in the 1998 
primaries and elections. See App. at 45a. The defendants 
unsuccessfully sought a stay order from the district court and 
then appealed its denial of a stay to this Court, which also 
denied their application for a stay. The defendants 
subsequently applied fruitlessly to the district court for leave to 
conduct primary elections under the 1997 plan in six 
congressional districts in eastern North Carolina that had been 
created by that plan. 

C. The 1998 Redistricting Plan 

The district court had allowed the General Assembly 
until May 22, 1998 to submit a redistricting plan for the 1998 
elections. On May 21, 1998, a plan was enacted which left the 
First District as it had been drawn in 1997, but modified the 
Twelfth District. The plaintiffs filed their objections to the 
1998 plan within the three day period allotted by the district 
court, and the state defendants responded in a like period. 
Subsequently, the plan was precleared by the Department of 
Justice and then, on June 22, 1998, was approved by the three- 

  

  

?Until that time the Cromartie action had been pending before 
Judge Malcolm Howard, and no three-judge panel had been designated. 
The panel for Daly had been designated previously. 

'%See Cromartie v. Hunt, 118 S. Ct. 1510 (1998) (Stevens, 
Ginsburg, and Breyer, JJ., dissenting).  



  

8 

judge district court for the 1998 election. However, the court 

noted that as to the First District neither the plaintiffs’ motion 

for summary judgment nor that of the defendants had been 

granted. Therefore a trial would be necessary. See App. at 

179a-80a. Moreover, at trial the plaintiffs could offer further 

evidence as to the racial motive for the Twelfth District.!! See 
id. Pursuant to 28 U.S.C. § 1253, plaintiffs, who are appellees 

in the present appeal, filed notice of appeal from the district 

ourt’s denial of their requested injunction. 

SUMMARY OF THE ARGUMENT 

The appeal from the decision of the district court should 

be dismissed because appellants have not presented to the 

Court a justiciable “case or controversy” for decision. See U.S. 

Const., Art. II, § 2. The language of the Session Law enacting 

the 1998 plan does not suffice to preserve for appellate review 

the issue of the constitutionality of the 1997 plan. The 

defendant-appellants have estopped themselves from denying 
that this issue is moot. 

If the appeal is not dismissed for want of a “case or 

controversy,” the judgment entered below should be affirmed. 

Appellants’ attempt to invoke claim preclusion is barred by 

heir failure to plead such a defense in their answer or 

otherwise to raise it in a timely manner. Even if appellants had 

timely asserted a defense of claim preclusion, their argument 

would fail on the merits, for no privity existed between the 

present appellees and the parties involved in the earlier 

judgment. Indeed, the terms of the original judgment of the 

three-judge district court in September 1997 make clear that the 

present appellees were not precluded by that judgment. See 
App. at 167a. 

The unrefuted evidence presented by appellees to the 

  

"In preparation for that trial, a scheduling order has now been 
entered which contemplates completion of discovery by December 11, 1998. 

   



0 

three-judge district court demonstrates clearly that summary 
judgment was properly granted. As this Court has made clear. 
circumstantial evidence alone can prove a predominantly racial 
motive. Appellees’ unrefuted evidence of lack of compactness, 
splitting of counties and towns along racial lines, and use of 
predominantly white, narrow “land bridges” to connect 
concentrations of African-Americans into a single tortured 
district amply established the legislature’s predominantly racial 
motive in drawing the Twelfth District. Although appellees’ 
strong circumstantial evidence, standing alone, proved the 
General Assembly’s predominantly racial motive, direct 
evidence also supports appellees’ case. When considered in 
context, statements made by the legislators who drafted the 
1997 redistricting plan constitute implied admissions that race 
had predominated in drawing the boundaries of the Twelfth 
District. The purported justifications of the plan were 
unsuccessful attempts to disguise the legislators’ racial motive 
and to preserve the products of the unconstitutional 1992 plan. 

In granting summary judgment, the district court did not 
lower the threshold for strict scrutiny, and its decision 
conformed to the precedents of this Court. Although in 
defending the 1997 plan, appellants have emphasized that 
District 12 is only 46.67 percent black, rather than majority- 
black, this fact provides no excuse for the racial gerrymander. 

ARGUMENT 

L THE APPEAL SHOULD BE DISMISSED AS 
NONIJUSTICIABLE. 

The “judicial power” of the United States can be 
invoked only if there is a “case or controversy.” See U.S. 
Const., Art. ITI, § 2. Indeed, “case” or “controversy” is a 
“bedrock requirement.” See Raines v. Byrd, 117 S. Ct. 2312, 
2317 (1997) (quoting Valley Forge Christian College v. 
Americans United for Separation of Church and State, Inc.,  



  

10 

454 U.S. 464,471 (1982)). Admittedly, the difference between 
“abstract question and ‘case or controversy’ is one of degree ... 
and is not discernible by any precise test.” Babbitt v. United 
Farm-Workers Union, 442 U.S. 289, 297 (1979). 

Occasionally when a statute is superseded by a later 
enactment, issues arising under the former statute become moot 
and are nonjusticiable. Perhaps the General Assembly had this 
ossibility in mind when it employed this language in enacting 

® 1998 redistricting plan: 

Section 1, G.S. 163-201 reads as 

rewritten: 

(a) For the purpose of nominating and 
electing members of the House of 
Representatives of the Congress of the United 
States in 1998 and every two years thereafter, 
the State of North Carolina shall be divided into 
12 districts as follows: 

% * * 

Section 1.1: The plan adopted by this 
act 1s effective for the elections for the years 
1998 and 2000 unless the United States 

» Supreme Court reverses the decision holding 
unconstitutional G.S. 163-201(a) as it existed 

prior to the enactment of this act. 

1997 N.C. Sess. Laws 1998-2, enacted May 21, 1998 (emphasis 
added). Section 1.1 appears to be unprecedented.'? 

In enacting the 1997 redistricting plan, the General 
Assembly had included a provision for substitution of a 

  

“In the General Assembly, Section 1.1 was deleted from the House 
Bill by the House Redistricting Committee but later was added back before 
the bill was passed in the North Carolina House of Representatives and sent 
to the Senate. 

   



11 

different plan if the 1997 plan were held unconstitutional 
because its districts lacked precise numerical equality.” On the 
other hand, Section 1.1 of the 1998 plan would substitute a 
previous plan for an existing plan that has not been held 
unconstitutional. ~~ Moreover, the substitution would be 
accomplished without any formal repeal of the more recent 
legislation or any specific enactment of the earlier plan." 

It is uncertain what event would qualify to make the 
1998 plan not “effective for the elections for the years 1998 and 
2000." For example, what ruling by this Court would be 
deemed to have “reverse[d] the decision holding 
unconstitutional G.S. 163-201(a) as it existed prior to the 
enactment of this act”? Appellees sought both a preliminary 
and a permanent injunction against use of the 1997 plan. 
Would a “reversal” have occurred if the Court held that 
appellees had not been entitled to summary judgment but were 
entitled to a preliminary injunction?'® Furthermore, unless the 
Court concluded that the defendants had been entitled to 

  

"The text of that provision is as follows: 
In the event that a court of competent jurisdiction holds 
that the plan enacted by section 2 of this act is invalid 
because the total population range violates the one- 
person, one-vote doctrine and that decision is not 
reversed, then the plan enacted by section 2 of this act in 
G.S. 163-201 is repealed and the following plan enacted 
in G.S. 163-201. 

1997 N.C. Sess. Laws 1997-11, section 3, effective March 31, 1997. 

“Whether the language of Section 1.1 would be sufficient to repeal 
Session Law 1998-2 or revive Session Law 1997-11 seems questionable. 
If the “reversal” were to occur after the 1998 election and new state 
legislators have been elected, applying Section 1.1 might be deemed to 
violate the principle that one legislature cannot bind a successor legislature. 
See State v. Wall, 271 S.E.2d 363, 369 (N.C. 1967). 

“Whether to grant a preliminary injunction is to be determined in 
the trial court’s discretion upon weighing likelihood of success against 
harms to the parties from granting or denying the injunction.  



  

12 

summary judgment as to the First and Twelfth districts under 
the 1997 plan, a trial would be necessary as to those districts. '® 

If, despite such uncertainty, Section 1.1 were applied, 
its application would create great confusion. Under its terms, 
Section 1.1 would apply even to the 1998 elections if this Court 
“reverses the decision” of the district court prior to the 
November 1998 election date. Since that possibility seems 
remote, probably the 1998 redistricting plan will govern 
election of the next members of Congress from North Carolina. 
If, however, this Court subsequently “reverses the decision 
holding G.S. 163-201 unconstitutional,” and the 1997 plan 
comes into effect, its constitutionality probably would still have 
to be determined in a trial. Meanwhile, if the 1998 plan now in 
effect were superseded by the less geographically compact, 
more racially gerrymandered 1997 plan, the pending trial with 
respect to the 1998 plan might be mooted. This potential chaos 
that Section 1.1 could produce makes it highly unlikely that the 
General Assembly would ever allow it to be applied. 

Under these circumstances appellees submit that 
Section 1.1 of the 1998 plan does not suffice to make 
justiciable the issues which appellants seek to raise in this 
appeal. Indeed, in adding Section 1.1 to the 1998 plan, the 
General Assembly made a transparent attempt to obtain from 
the Court an advisory opinion about the constitutionality of the 
superseded 1997 plan. 

Moreover, appellants have now estopped themselves 
from claiming that the constitutionality of the 1997 plan is a 
justiciable issue. On July 22, 1998, appellants submitted to the 
three-judge district court a motion to consolidate this action 
with the Daly case. In the memorandum attached to the motion 
to consolidate, appellants state: 

  

“The district court denied both parties’ motions for summary 
judgment as to the First District in the 1997 plan, and presumably trial as to 
the First and Twelfth districts in that plan would be necessary. 

   



13 

Cromartie includes a challenge to 
Congressional District 12 in the State’s 1997 
congressional plan, Section 2 of Chapter 11 of 
the 1997 Session Laws. However, the 
challenge to District 12 has been rendered 
moot by the judgment of this Court declaring 
District 12 unconstitutional and the permanent 
injunction requiring the State to enact a new 
congressional plan ... which substantially 
modified the boundaries of District ]2. 

Mem. at 2, n.2 (P-A App. at 3a) (emphasis added). Having 
represented to the lower court in this same action that the 
constitutional challenge to District 12 is moot, and appellants 
having made this representation after filing their jurisdictional 
statement, they are now estopped from pursuing their effort to 
obtain an advisory opinion from this Court — which hardly 
needs such a time-consuming distraction. 

II. APPELLEES WERE NOT PRECLUDED FROM 
CHALLENGING THE 1997 REDISTRICTING PLAN. 

A. Appellants’ assertion of claim preclusion is 
untimely and should be disregarded. 

  

  

The contention by appellants in their jurisdictional 
statement that claim preclusion bars the action brought by 
appellees comes much too late. Both the Federal Rules of Civil 
Procedure and well-settled case law clearly provide that res 
Judicata, or claim preclusion, is an affirmative defense which 
must ordinarily be raised in the pleadings. See Fed. R. Civ. 

  

"Ms. Tiare Smiley, Special Deputy Attorney General, signed both 
the jurisdictional statement and the motion to consolidate.  



  

14 

Proc. 8(c)."* The defense of claim preclusion “cannot be raised 

for the first time on appeal.” 18 C. Wright, et al., Federal 

Practice & Procedure § 4405 (p. 35) (Supp. 1998)." 

The rationale behind these procedural limitations is 

clear: to provide the opposing party a fair opportunity to meet 

the defense, see Blonder-Tongue Lab., Inc. v. University of I1l., 

402 U.S. 313, 350 (1971), and to serve the basic “policy of 

pidicial economy that is integral to the preclusion doctrines, 

hich] is impeded if not defeated by excessive delay.” 18 

James Moore, et al., Moore's Federal Practice § 131.50[5] (3d 

ed. 1998). Untimely assertion of a preclusion defense 

undercuts this basic policy of judicial economy, since the court 

hearing the case and the parties themselves will have already 

expended scarce time and resources in arguing the case and 

possibly docketing and briefing an appeal. 

Appellants rely upon the September 12, 1997 order and 

memorandum opinion of the three-judge district court in Shaw 

v. Hunt (see App. at 157a, 159a) as a judgment that precludes 

the present claims. However, that judgment was entered more 

than two months before the appellants filed their answer on 

November 27, 1997; and they never sought to amend that 

® Moreover, appellants did not assert claim preclusion 

  

“See also Kern Oil & Ref. Co. v. Tenneco Oil Co., 840 F.2d 730, 

735 (9th Cir.), cert. denied, 488 U.S. 948 (1988); Crowe v. Cherokee 

Wonderland, Inc., 379 F.2d 51, 54 (4th Cir. 1967). 

“If a case has progressed past the pleadings and is in the pre-trial 
or trial phase when an allegedly preclusive judgment is rendered in another 

case, the defense of claim preclusion must be asserted at that time — namely, 

as soon as the defense becomes available. See Totalpan Corp. of Am. v. 

Colborne, 14 F.3d 824, 832 (2d Cir. 1994); see also White v. American 

Airlines, Inc., 915 F.2d 1414, 1424 (10th Cir. 1990) (holding defense 

“waived” when it had become available the week before trial but was not 

raised until one year after judgment); Explosives Corp. of Am. v. Garlam 

Enters., 817 F.2d 894, 900-01 (1st Cir. 1987) (six months’ delay in raising 

the defense was “inexcusable™). 

   



15 

in their briefs supporting their motion for summary judgment 
and in opposing appellees’ motion for preliminary injunction 
and summary judgment. Not until they filed their jurisdictional 
statement did appellants mention claim preclusion. Even 
assuming, contrary to the record, that appellants’ assertion of 
claim preclusion were properly grounded in law or fact, their 
delay until appeal to raise this defense contradicts the often- 
expressed rationale for the doctrine of res judicata and 
constitutes waiver. 

B. The Shaw plaintiffs were not privies or “virtual 

representatives” of appellees. 
  

  

Even if appellants had asserted the defense at the proper 
stage of the proceedings, claim preclusion would not apply. 
The judgment relied on by appellants as “preclusive” of the 
appellees’ claims is the September 12, 1997 order of the three- 
judge district court which conducted the remedial phase of 
Shaw v. Hunt (see App. at 159a). As to appellees and their 
claims, that judgment fails to satisfy the privity requirement of 
claim preclusion and as a result does not bar the claims 
presented by appellees. 

In order for an earlier judgment to preclude a later 
claim, the original judgment must involve the same parties as 
the present case, or persons in privity with them.?’ See 
Cromwell v. County of Sac, 94 U.S. 351, 352 (1876). 
Moreover, the originak-judgment must be a final judgment 
rendered on the merits. See id. When a plaintiff in the current 
case was not a party to the original judgment, that plaintiff must 
be in privity with the original plaintiffs if the original judgment 
is to have any preclusive effect. See Hansberry v. Lee, 311 

  

“Privity is generally defined as the existence of an express or 
implied legal relationship between two or more parties, such as family 
members, members of a class action, employers-employees, administrators, 
and executors. See Moore's § 131.40[1].  



  

16 

U.S. 32, 41-43 (1940) (describing privity in class actions). 

Closely related to the traditional concept of privity is the 

somewhat more recent notion of “virtual representation,” which 

exists if the original plaintiff’s interests are so closely aligned 

as to be identical with those of the present plaintiff. For this 

doctrine to apply, however, the parties must have more than a 

similarity of interests. Indeed, the Fifth Circuit has adopted a 

ivity-like standard for virtual representation — the parties 

@. enjoy an express or implied legal relationship to be 
“virtual representatives.” See Royal Ins. Co. of Am. v. Quinn-L 

Capital Corp., 960 F.2d 1286, 1297 (5th Cir. 1992).?' Other 

circuits have abandoned the legal relationship requirement for 

a factor-based analysis, identifying as relevant criteria 

“participation in the first litigation, apparent consent to be 

bound, apparent tactical maneuvering [to avoid preclusion], and 

close relationships between the parties and nonparties.” Jaffree 

v. Wallace, 837 F.2d 1461, 1467 (11th Cir. 1988) (finding that 

original plaintiff was virtual representative of current plaintiffs, 
who were his wife and children) (citation omitted). 

In the context of the present case, the same-party/privity 

requirement is not satisfied. Although the September 1997 

proval did constitute a final judgment on the merits for the 

aw II plaintiffs, the district court carefully excluded other 

parties from the judgment’s effect: 

[Wle only approve the plan as an adequate 

remedy for the specific violation of the 

individual equal protection rights of those 

plaintiffs who successfully challenged the 

legislature’s creation of former District 12. Our 

  

!'See also Benson and Ford, Inc. v. Wanda Petroleum Co., 833 

F.2d 1172, 1175 (5th Cir. 1987) (parties were represented by same attorney 

and asserted same claim based upon same facts, but due to absence of 

express or implied legal relationship later action was not precluded). 

   



17 

approval thus does not — cannot — run beyond 

the plan’s remedial adequacy with respect to 

those parties and the equal protection violation 

found as to former District 12. 

Shaw v. Hunt (E.D.N.C. Sept. 12, 1997) (App. at 167a). Thus 

the approval of the plan was a final judgment only as to those 
Shaw plaintiffs whose standing had been recognized by this 
Court in Shaw II. Those plaintiffs were all residents of Durham 
County, part of which was included in District 12 under the 
1992 plan. The current appellees are residents of Edgecombe 
County in District 1 under the 1997 plan and Rowan, Guilford, 
and Mecklenburg counties in District 12. They have no express 
or implied legal relationship to any of the Durham County 
plaintiffs identified in the September 1997 judgment. 

Appellants’ assertion that the Shaw plaintiffs were 
“virtual representatives” of the current appellees also fails. The 
plaintiffs whose claims were resolved by the September 1997 
order had successfully challenged the creation of District 12 by 
the 1992 redistricting plan. The present appellees, by contrast, 
challenged Districts 1 and 12 as drawn in the 1997 redistricting 
plan. Appellees may have a similarity of interests with the 
Shaw plaintiffs; but they lack the level of identification 
necessary for virtual representation.” That which might 
constitute virtual representation — e.g., consent to be bound, a 
close relationship between the parties, tactical maneuvering to 
avoid preclusion — is absent. 

C. The district court conducting the remedial phase 

of Shaw v. Hunt specifically provided in its 

order and opinion that its decision only applied 

  

  

  

  

The fact that the two sets of plaintiffs are represented by the same 
attorney is of little relevance. Indeed, it seems odd to suggest that an 

attorney experienced in redistricting litigation cannot represent those who 

seek his pro bono counsel.  



  

18 

to the plaintiffs and claim identified by the 

Supreme Court before remand. 
  

  

In handling the remedial proceedings in Shaw v. Hunt, 

the district court’s responsibility was to oversee the fashioning 

of a remedy to address the constitutional violations suffered by 
the original plaintiffs. Since this Court had dismissed the 

claims concerning the constitutionality of the First District, the 

istrict court had no authority to consider the 1997 plan’s 

adequacy to remedy any constitutional flaw of the First District. 

Contrary to appellants’ suggestion, potential constitutional 

challenges that might be made to the 1997 plan’s First and 

Twelfth Districts by persons who had standing were not 

“snuffed out” by the order of September 12, 1997. To the 

contrary, in its memorandum opinion accompanying that order, 

the three-judge district court expressly noted the limitations on 

its approval and made no determination regarding the 

challenges to the 1997 plan that might be made by persons who 
had standing.” 

III. THE DISTRICT COURT PROPERLY GRANTED 
SUMMARY JUDGMENT ON THE 

» UNCONSTITUTIONALITY OF DISTRICT 12. 

Assuming arguendo that appellees bore the burden of 

  

ZFurther evidence of the separate identities of the present action 
and the Shaw remedial judgment is the Shaw panel’s denial of the 

defendants’ motion to consolidate Shaw, Cromartie and Daly. The Shaw 

defendants’ motion, filed in October 1997, requested that the three cases be 

consolidated pursuant to Fed. R. Civ. Proc. 42(a) because they presented 

common issues of law and fact. Even though the threshold for 

consolidation is significantly less demanding than that required to establish 

claim preclusion or even to prove that an original plaintiff was a “virtual 

representative” of a later plaintiff, the court denied the motion and allowed 

the three cases to proceed independently. See P-A App. at 1a. 

   



19 

persuasion — which they dispute — appellees nevertheless met 
the standard for summary judgment. Summary judgment is 
appropriate when there is no genuine issue as to any material 
fact and the moving party is entitled to judgment as a matter of 
law. See Fed. R. Civ. Proc. 56(c). The moving party is entitled 
to summary judgment when a rational trier of fact, after 
considering the record as a whole, could not find for the non- 
moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio 
Corp., 475 U.S. 574, 587 (1986). The “mere existence of a 
scintilla of evidence” for the non-moving party’s position is 
insufficient to defeat a properly supported motion; there must 
be enough evidence for a reasonable jury to find for the non- 

  

**To obtain summary judgment, appellees were required by the 
district court to establish as an irrefutable fact that the General Assembly 
had a predominantly racial motivation in drawing the 1997 plan. Instead, 
the burden should have been placed on appellants to show that there was no 
racial motive and that there was no “vestige” of the 1992 racially-motivated 
plan. Only this approach is consistent with the Court's decisions in other 
fields of equal protection law. For example, in the school desegregation 
cases, once an equal protection violation had been proved, the local school 
authorities and the district courts were required to “eliminate ... all vestiges 
of state-imposed segregation.” Swann v. Charlotte-Mecklenburg Bd. of 
Educ.,402 U.S. 1, 15 (1971). Having established that continuing violation, 
a plaintiff is “entitled to the presumption that current disparities are causally 
related to prior segregation, and the burden of proving otherwise rests on the 
defendants.” School Bd. of the City of Richmond v. Baliles, 829 F.2d 1308, 
1311 (4th Cir. 1987). Likewise in criminal cases, the state must show that 
any “taint” caused by a violation of a defendant's rights has been attenuated 
and that there is no “fruit of the poisonous tree.” See Wong Sun v. United 
States, 371 U.S. 471 (1963); Nardone v. United States, 308 U.S. 338 
(1939). Although a broad scope should be allowed for legislative discretion, 
once it has been proved that this discretion has been improperly exercised 
the courts have a special responsibility to assure that the unconstitutional 
intent has been extinguished when the legislature takes remedial action. 
Since the General Assembly had enacted an unconstitutional redistricting 
plan in 1992, appellants should have been required to prove that the 1997 
plan was not racially motivated.  



  

20 

moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

252 (1986).7 

To prove an equal protection violation in a redistricting 

case, the plaintiff may prove a race-based motive “either 

through circumstantial evidence of a district’s shape and 

demographics or through more direct evidence going to 

legislative purpose.” Shaw II, 517 U.S. at 905 (citations 

mitted) (emphasis added). Thus, circumstantial evidence 

one may suffice to warrant summary judgment. Here there is 

an abundance of circumstantial evidence — much of which 

either was provided by appellants or was subject to judicial 

notice under Fed. R. Evid. 201. Moreover, upon analysis, the 

contradictions and hidden meanings in the statements of 

legislators help establish that the Twelfth District was drawn 

with a predominantly racial motive. 

A. The shape and demographics of District 12 and 

its disregard of traditional redistricting 

principles prove the predominantly racial 

motive. 

  

  

  

A visual comparison of the maps makes evident that the 

welfth District in the 1997 plan bears an unacceptable 

ikeness to its predecessor “I-85" district in the 1992 plan® — 

the plan this Court held unconstitutional in 1996 (Shaw II). 

  

®See also Aleyska Pipeline Serv. Co. v. U.S. E.P.A., 856 F.2d 309, 

314 (D.C. Cir. 1988) (“a motion for summary judgment adequately 

underpinned is not defeated simply by a bare opinion or an unaided claim 

that a factual controversy persists”); Ross v. Communications Satellite 

Corp., 759 F.2d 355, 365 (4th Cir. 1985) (“[u]nsupported allegations as to 

motive do not confer talismanic immunity from Rule 56"). 

See App. at 59a, 61a. Also, appellees are lodging with the Court 
four maps which were before the district court and which make even clearer 
that those who drafted the 1997 plan followed the race-based approach used 

in the 1992 plan. 

   



24 

The district “winds its way from Charlotte to Greensboro along 

the Interstate-85 corridor, making detours to pick up heavily 

African-American parts of cities such as Statesville, Salisbury, 

and Winston-Salem.” See Mem. Op. (App. at 19a). District 12 

splits all of its six counties; and it is the only congressional 

district in the 1997 plan that does not contain a single whole 

county. Significantly, the three largest of the six counties are 

divided along racial lines. As Dr. Ron Weber, a redistricting 
expert, points out: 

[T]he racial makeup of the parts of the six sub- 

divided counties assigned to District 12 include 

three with parts over 50 percent African- 

American .... Almost 75 percent of the total 

population in District 12 comes from the three 

county parts which are majority African- 

American in population ... [and which] are 

located at the extremes of the district. 

Weber Decl. 18. Mecklenburg, Forsyth, and Guilford 

counties — which contain almost 75 percent of District 12's 

population — are divided in such a manner that the portion of 

each county which contains a majority of African-Americans is * 

included in District 12, while the portion containing a greater 

concentration of white voters is excluded.” Dr. Weber also 
observes that the splitting of political subdivisions to maximize 

black population in the Twelftlf District occurred not only for 

  

“Under the 1997 plan, the portion of Mecklenburg County 
included in District 12 was 51.9% black and 45.9% white, while the portion 

of the county placed in neighboring District 9 was 90.4% white and a mere 

7.2% black. The portion of Forsyth County included in the Twelfth was 

72.9% black and 26.3% white, while the part of Forsyth included in District 

5 was 87.7% white and only 11.1% black. The part of Guilford County 

included in District 12 was 51.5% black and 46.5% white, while the portion 

assigned to District 6 was 88.2% white and 10.2% black. See Weber Decl. 

at Table 2.  



  

22 

counties but also for cities and towns. The major cities in the 

Twelfth District — Charlotte, Greensboro, Winston-Salem, High 

Point and Statesville — are split along racial lines, with the 

precincts included in District 12 having a greater population of 

black citizens than the precincts left for other districts.® In 

addition to the egregious splitting of counties and cities along 

racial lines, the plan also employs narrow “land-bridges” to 

connect the far-flung communities of African-Americans and 

@.. surrounding districts contiguous.” 
Appellees have also submitted other uncontroverted 

evidence as to the disregard for traditional districting principles 

— such as compactness and geographical integrity — in creating 

District 12 under the 1997 plan. For example, Professor 

Timothy O’Rourke’s evaluation of the compactness of District 

12 using recognized statistical methods reveals that of the 

United States’ 435 congressional districts, “[i]f the 1992 

rankings had remained unchanged, the [1997] version of the 

Twelfth would still stand as the 430th least compact district on 

the dispersion measure and it would rank 423 on the perimeter 

  

The portion of Charlotte included in District 12 is 59.5% black, 
@ the portion left for District 9 is only 8.1% black. The portion of 

Greensboro placed in District 12 is 55.6% black, while the part of the city 

left for District 6 is only 10.7% black. The portion of Winston-Salem 

assigned to District 12 is 77.4% black, while the portion assigned to District 

5 is only 16.1% black. The portion of High Point placed in District 12 is 

51.4% black, while the portion in District 6 is only 11.7% black. In 

Statesville, the portion included in District 12 is 75.4% black, while the 

portion included in District 10 is only 18.9% black. See Weber Decl. at 
Table 4. 

®For example, in District 12 “a narrow land bridge is used to 
connect Davidson County with the city of Greensboro in Guilford County.” 

(Weber Decl. J 31.) One precinct at the southern tip of District 12 is 

divided so that its northern half -- all precinct residents but one -- is in the 

Twelfth District, while its southern half -- only one person -- forms a two- 

mile wide land bridge connecting the otherwise non-contiguous wings of 

District 9. See O'Rourke Aff. J 5(c); see also App. at 59a. 

   



23 

measure.” O’Rourke Aff. J 4(d). Indeed, the Twelfth District’s 

dispersion and perimeter compactness figures fall below those 

of contested districts from four other states: Florida, Georgia, 

Illinois, and Texas. See Mem. Op. (App. at 21a). 

B. Direct evidence confirms the predominantly 

racial motive in drawing District 12. 
  

  

In submitting the 1997 plan for Section 5 preclearance, 

the State represented to the Department of Justice that five 

factors were emphasized in locating and shaping the Twelfth 

District. See App. at 63a. That representation is misleading in 

several respects.* Moreover, although “geographic 
compactness’ is mentioned in the Section 5 submission as one 

of five factors considered in drawing the plan, the affidavit of 

Senator Roy A. Cooper, III, Chair of the Senate Redistricting 

Committee, omits it as a factor (App. at 72a), and that of 

Representative McMahan, Chairman of the House Redistricting 

Committee, makes no specific reference to geographic 

compactness as a factor that was considered.®' Id. at 81a, 83a. 

  

**Contrary to the State’s representation, (1) the Twelfth District 
split all of its six counties; (2) it has a long “corridor” of predominantly 

white precincts to connect concentrations of blacks in Charlotte, Winston- 

Salem, and Greensboro -- a corridor only one precinct wide in many places; 

(3) it is not geographically compact and, indeed, ranks at the bottom of the 

compactness scale for congressital districts in North Carolina and 

nationally; (4) it is “functionally compact” only if “function” is equated to 

race; (5) it lacks “ease of communication” in any meaningful sense because 

the district’s voters are divided between two Metropolitan Statistical Areas 

(MSA's) and spread over several media markets. 

*'It is typical of the inconsistencies and contradictions on the part 

of the state legislators and appellants that Senator Cooper declared in a 

committee meeting in March 1997, “We've strived to follow the direction 

of the Supreme Court to draw more geographically compact districts.” 

State’s Section 5 Submission, 97C-28F-4D(3) at 1. Yet Senator Cooper 

failed to acknowledge this effort in his affidavit, and appellants concede now 

that “the legislature did not ... select geographical compactness as a criterion  



  

24 

The spuriousness of the representations in the Section 5 

submission is itself evidence of the effort to disguise the 

General Assembly’s racial motive. 
The submussion’s reference to “functional compactness” 

as a factor in drawing the Twelfth District and the use of the 

same term by Senator Cooper in his affidavit (id. at 72a) reveal 

another tactic used to mask the legislature’s racial motive. 

a the Section 5 submission and Senator Cooper define this 

rm to mean “grouping together citizens of like interests and 

needs.” Id. However, the separation of predominantly black 

precincts in Greensboro, Charlotte, Winston-Salem, and High 

Point from neighboring white precincts in those cities can only 

be related to that definition of “functional compactness” if it is 

assumed that African-Americans in those cities all have “like 

interests and needs,” and that the persons in neighboring 

predominantly white precincts in those cities have different 

“interests and needs.” Obviously, such logic relies on “racial 

stereotyping,” which the Court denounced in Shaw I. 

The Section 5 submission (see App. at 64a) and the 

affidavits of Senator Cooper (see id. at 74a-75a) and 

  

Ww receive independent emphasis in drawing the plan.” J.S. at 22. 

*’Citing Lawyer v. Department of Justice, 117 S. Ct. 2186, 2195 
(1997), appellants assert that a contested district’s lack of compactness does 

not necessarily prove a predominantly racial motive. In that case, however, 

the challenged legislative district’s shape did not “stand out as different from 

numerous other Florida House and Senate districts.” Id. In North Carolina, 

on the other hand, District 12 is significantly less compact than the state’s 

other congressional districts. 

*Previously, in seeking to justify race-based District 12 under the 
1992 plan, the same counsel for the State minimized “geographic 

compactness” and relied on “functional compactness.” See State Appellees’ 

Brief in Shaw II, at 21-22. In their view “to a large extent, compactness is 

in the eye of the beholder.” Tr. of Argument at 26. This premise, while 

ignoring the statistical measures of “compactness,” provides appellants a 

tool for concealing the actual racial motive. 

   



25 

Representative McMahan (see id. at 83a) also assert that 
maintaining the 6-6 “partisan balance” in the North Carolina 

congressional delegation was a primary goal of the General 

Assembly. Senator Cooper claims that the Twelfth District’s 

boundaries were based not on race but on - partisan 

considerations and that the district was designed to be a 

“Democratic island in a largely Republican sea,” with precincts 

chosen for inclusion in the district on the basis of their 

percentages of Democratic voters. See id. at 77a. 

The speciousness of this “partisan disguise” becomes 
evident when the facts of the 1997 plan and the demographics 
of districts neighboring District 12 are closely examined. A 

number of the predominantly black precincts in Mecklenburg 
County which were placed in the Twelfth District — precincts 

which also are predominantly Democratic — are directly 

adjacent to precincts that are predominantly white and 

Democratic. The predominantly white Democratic precincts, 

however, were placed in the neighboring Ninth District. If 

District 12 was created as a Democratic district, there is no 

reason why these precincts were excluded, especially in light of 

their voting performance in the 1990 U.S. Senate election in 

North Carolina. Democratic senatorial candidate Harvey Gantt, 

an African-American, received the majority of votes in these 
predominantly white precincts over incumbent Republican 
Senator Jesse Helms. For example, Precinct 10 of 
Mecklenburg County is predomfriantly white in population (89 
percent), and is 63 percent Democratic. Seventy-three percent 
of the votes in Precinct 10 were cast for Gantt in 1990 — 
certainly a sound showing of support for an African-American 
candidate across racial and party lines. Precinct 21 of 

Mecklenburg County is 85 percent white, and 59 percent 

Democratic; and 60 percent of its voters chose Mr. Gantt. 

Precinct 38 gave 54 percent of its votes to Gantt, and is 52 

percent Democratic, yet it too was excluded from District 12 — 

and its white population is 85 percent. All three precincts were  



  

26 

excluded from District 12 — apparently left to sink in the 

“Republican sea.” Similar statistics prove the same situation 

exists in Forsyth and Guilford counties under the 1997 plan. 

As the district court concluded, “The common thread woven 

throughout the districting process is that the border of District 

12 meanders to include nearly all of the precincts with African- 

American population proportions of over forty percent which 

lie between Charlotte and Greensboro, inclusive.” App. at 20a. 

» This Court recognized a similarly specious “partisan 

disguise” in the recent Texas redistricting litigation. There the 

State defendants argued, just as appellants do here, that the 

gerrymandered districts were drawn with political, not racial, 

motivations. This defense was rejected because “to the extent 

that race is used as a proxy for political characteristics, a racial 

stereotype requiring strict scrutiny is in operation.” Bush v. 

Vera, 116 S. Ct. 1941, 1956 (1996). However, disregarding 

Bush, the General Assembly used race to achieve an intended 

result of having two African-American members of Congress 

— who would inevitably be Democrats.> 

  

*In Forsyth County, Precinct 1408, which is 71% white, is two- 
@ Democratic and cast three-fourths of its votes for Gantt in 1990, was 

excluded from District 12. Precinct 1422 — two-thirds white and three- 

fourths Democratic — cast three-fourths of its votes for Gantt yet was 

excluded. In Guilford County, Precinct 11, which is 80% white and 62% 

Democratic, gave 67% of its votes to Gantt but was excluded. Precincts 14 

and 17, which are respectively 58% and 62% Democratic and 82% and 85% 

white, also granted overwhelming victories to Gantt; yet both were excluded 
from District 12. 

**The circumstance that in North Carolina more than 95 percent of 

African-American registered voters are Democrats makes it easier to 

disguise the legislature’s racial motivation. However, even appellants’ own 

expert concluded that there exists “a substantial correlation between the path 

taken by the boundary of the Twelfth District and the racial composition of 

the residents of the precincts touching that boundary, the tendency being to 

include precincts within the district which have relatively high black 

representation.” Peterson Aff. (App. at 87a). 

   



27 

Appellants have often claimed that the 1997 plan was 

based in part on “incumbency considerations,” which in turn 
were closely related to maintaining the existing partisan 
balance. Allegedly, the twelve districts were drawn so that no 
incumbent from the 1992 election (which took place under an 
unconstitutional districting plan) was placed in the same district 
as another incumbent. See App. at 74a-75a. Moreover, the 
plan was drawn to include select groups of voters within or 
without certain districts in order to preserve the electoral 

chances of those incumbents. 
Protecting an unconstitutionally-elected incumbent is a 

questionable method of “correcting the condition which offends 
the Constitution,” the purported goal of an equitable remedy. 
Swann, 402 U.S. at 16. This is especially true when, as here, it 
is apparent that the legislature used the race of voters placed in 
Districts 12 and 1 to achieve the intended result of having two 
African-American Representatives from North Carolina. 
Accepting the rationale of appellants’ argument would permit 
the total negation of the Court’s decisions in other cases 
involving racial gerrymandering; it signifies that a result 
obtained by racial gerrymandering can thereafter be perpetuated 

if the legislators recite that they wish to “protect incumbents” 

or “maintain partisan balance.” Indeed, under appellants’ logic 

the identical plan held unconstitutional in Shaw II could be 
reenacted on the grounds that it was no longer racially 

(Ve 

  

*In a discussion on the House Floor on March 26, 1997, Rep. 
McMahan offered reasons why he believed District 12 would “stand a Court 
test.” “1. Not a Majority/Minority District .... 2. Population in 12 has 

homogeneous interest — comprised of many citizens living in an urban 

setting. 3. Drawn to protect the Democratic incumbent.” State’s Section 5 
submussion, 97C-28F-4F(1), at 2. In a committee meeting the previous day, 
Rep. McMahan stated that District 12 “recognizes racial fairness and is 

friendly to our incumbents which we [Sen. Cooper and Rep. McMahan] both 
determined on the front end to be an important consideration in the process.” 
97C-28F-4E(4) at 1.  



  

28 

motivated but instead was politically motivated.’ 
Interestingly, in justifying the 1997 plan with its 46.67 

percent black Twelfth District, appellants used the same 
justification of “partisan balance” and “maintaining 
incumbents” that they have used in attempting to justify the 
1998 redistricting plan — which has a 35 percent African- 
American population, does not split all of its five counties, and 
is more geographically compact.®® In short, the legislators now 
claim to be able to meet their “partisan objectives” with a 
district that is less racially-gerrymandered. This, in itself, is 
another indication that the 1997 plan was chosen instead of 
some other plan more consistent with traditional race-neutral 
districting principles because the 1997 plan gave more certainty 
of reaching the desired racial result. 

IV. DISTRICT 12 IS SUBJECT TO STRICT 
SCRUTINY UNDER THE EQUAL 
PROTECTION CLAUSE. 

In their jurisdictional statement, appellants state the 
“Questions Presented” in a misleading way.>®> Moreover, the 

  

*’As indicated in the Counterstatement, appellants have already 
displayed their adroitness in moving from one rationale to another, i.e., 
beginning in 1992 with a defense against the political gerrymandering suit 
that the plan was racially gerrymandered, and later seeking to justify the plan 
as having a political motivation. The numerous, oft-repeated contradictions 
and evasions on the part of appellants serve to impeach their affidavits and 
constitute implied admissions of the actual racial-based motive. Cf. 
Wigmore, Evidence §§ 1040, 1060 (1972 ed.). 

*See Mem. Op. (App. at 178a-79a). 

*Contrary to Question 1’s implication, the “shape and racial 
demographics” of District 12 were not “standing alone.” Those 
circumstances and many others — such as the state’s evasive tactics over a 
seven-year period — lead any objective factfinder to the inevitable 
conclusion that a racial motive was paramount. Similarly, contrary to 
Question 3’s implication, the Twelfth District was more than “slightly 

   



29 

jurisdictional statement erroneously intimates that the 
pronouncements of Shaw I and Shaw II are irrelevant to the 
1997 version of District 12 because the population of that 
district was only 46.67 percent black — rather than majority- 
black. See, e.g., Question 3, J.S. at I; 27. However, the 
opinion of the Court in Miller, 515 U.S. at 916, speaks in terms 
of a “significant number” of persons being placed “within or 
without” a certain district because of their race. Clearly a 
“significant number” of African-Americans in Guilford and 
Forsyth counties — over 113,000 — were placed in the Twelfth 
District because of their race. Nothing in the Court’s opinion 
in Bush, 517 U.S. at 962-63, suggests that strict scrutiny does 
not apply when a legislature neglects traditional districting 
criteria due to a predominantly racial motive, whether or not a 
district is majority-minority. Although appellants rely on 
Lawyer, 117 S. Ct. at 2191, 2195, the challenged district in that 
case — though not majority-minority — did not “stand out as 
different in shape” from other Florida districts, and the 
plaintiffs’ circumstantial evidence was insufficient to prove a 
predominantly racial motive. 

In the present case, the evidence of the legislature’s 
disregard of traditional districting principles is overwhelming, 
and the district court properly concluded that there was no 

  

irregular,” the concentration of African-Americans was much higher in 
District 12 and many of its precincts than in adjoining districts and 
precincts, and the district violated many of the race-neutral criteria which — 
intermittently — the state purported to be following. 

“In drawing the Twelfth District, the legislators also labored under 
the false impression that Shaw's indictment of racial gerrymanders applied 
only to majority-minority districts. See, e.g., Comments of Rep. McMahan, 
supra n.35; see also Comments of Sen. Cooper during Senate Floor Debate 
of March 27, 1997 (“[T]he test outlined in Shaw vs. Hunt will not even be 
triggered because [District 12] is not a majority minority district and you 
won’t even look at the shape of the district in considering whether it is 
constitutional”) (97C-28F-4F(2), at 5) (emphasis added).  



  

30 

litigable issue as to whether this placement was primarily 

motivated by race.’ It inevitably follows under Shaw, Miller, 

and Bush that the test of strict scrutiny must be applied.” In 

that event, District 12 fails the test and the 1997 plan is 
unconstitutional. 

CONCLUSION 

For the foregoing reasons, appellees respectfully request 

this Court to dismiss the appeal, or, in the alternative, to 

summarily affirm the decision of the court below. 

Respectfully submitted, 

MARTIN MCGEE ROBINSON O. EVERETT* 

Williams, Boger, Grady, Everett & Everett 

Davis & Tittle, P.A. 

Attorneys for the Appellees 

August 26, 1998 *Counsel of Record 

  

“'The district court had before it, inter alia, the declarations of Dr. 
Ron Weber, Dr. Tim O’Rourke, and other leading experts who explained 
why they readily concluded that race was the predominant motive for 
District 12. See, e.g., P-A App. at 5a-7a. 

“Admittedly, when strict scrutiny is applied, special rules may 
apply to a majority-black district, see Thornburg v. Gingles, and a majority- 
minority district may be created if there is a “geographically-compact” 
majority-minority population. 478 U.S. 30, 50-51 (1986). However, the 
appellants’ assertion that strict scrutiny was improperly applied suggests that 
appellants have confused the Gingles preconditions with the requirements 
of Shaw and its progeny. 

   



APPENDIX 

 



  

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TABLE OF CONTENTS 

Shaw v. Hunt, CA 92-202-CIV-5-BR. Order of 
United States District Court for the Eastern 

District of North Carolina, October 16, 1997 la 

Excerpts from Defendants’ Memorandum, July 22, 1998 . 3a 

Excerpts from Declaration of Dr. Ronald E. Weber . . .... 5a 

 





la 

SHAW y. HUNT, CA 92-202-CIV-5-BR, ORDER OF 
UNITED STATES DISTRICT COURT FOR THE 
EASTERN DISTRICT OF NORTH CAROLINA 

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF NORTH CAROLINA 

WESTERN DIVISION 

Civil Action No. 92-202-CIV-5-BR 

RUTH O. SHAW, et al, 

Plaintiffs, 

and 

JAMES ARTHUR “ART” POPE, 

et al., Plaintiff- 

Intervenors, 

V. ORDER 

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

Defendants, 

and 

RALPH GINGLES, et al., 

Defendant- 

Intervenors. 

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Defendants’ motion to consolidate Cromartie v. Hunt 
(N0.4:96-CV-104-H) (E.D.N.C.) and Daly v. High (No.5:97- 
CV-750-BO) (E.D.N.C.) with the above-captioned matter is 
DENIED.  



  

2a 

SHAW ORDER OF OCTOBER 16, 1997, CONT'D... 

This 16 October 1997. 

For the Court: /s/ W. Earl Britt 

United States District Judge 

   



3a 

DEFENDANTS’ MEMORANDUM, JULY 22, 1998 

[Caption omitted in printing] 

DEFENDANTS’ MEMORANDUM IN SUPPORT OF 
CONSOLIDATION 

Defendants have moved the Court pursuant to Federal 
Rule of Civil Procedure 42(a), to consolidate for purposes of 
trial the case of Daly v. Leake, No. 5:97-CV-750-BO(3), with 
the case of Cromartie v. Hunt, No. 4:96-CV-104-BO(3). 
Consolidation of these cases is appropriate because the actions 
involve common questions of law and fact; in addition, 
consolidation will avoid the risk of inconsistent adjudications 
and limit the burden on parties, witnesses and available judicial 
resources posed by separate trials. 

FACTS 

The Daly litigation involves an equal protection: 
challenge to various North Carolina State House and State 
Senate Districts,’ as well as Congressional Districts 1 and 3, as 
unconstitutional racial gerrymanders. Similarly, the Cromartie 
litigation involves an equal protection challenge to 
Congressional District 1 as an unconstitutional racial 
gerrymander.> Both of these cases are currently pending 

  

Daly plaintiffs are challenging House Districts 7, 28, 79, 
87.97 and 98, and Senate Districts 4, 6, 7, 38, and 39. 

- 
“ 

Cromartie includes a challenge to Congressional District 
12 in the State’s 1997 congressional plan, Section 2 of Chapter 11 of the 
1997 Session Laws. However, the challenge to District 12 has been 
rendered moot by the judgment of this Court declaring District 12 
unconstitutional and the permanent injunction requiring the State to enact a 
new congressional plan, Chapter 2 of the 1998 Sessions Laws [sic] (the 
1998 plan), which substantially modified the boundaries of District 12. 
Daly also includes challenges to Congressional Districts 5, 6, 9 and 12 in the 
1997 congressional plan. These challenges have been rendered moot by the  



    
4a 

DEFENDANTS’ MEMORANDUM, JULY 22, 1998, 
CONT'D... 

before the same three-judge panel. 

This the 22nd day of July, 1998. 

MICHAEL F. EASLEY 

ATTORNEY GENERAL 

/s/ Edwin M. Speas, Jr. 

Chief Deputy Attorney General 

N.C. State Bar No. 4112 

/s/ Tiare B. Smiley 

Special Deputy Attorney General 

N.C. State Bar No. 7119 

N.C. Department of Justice 

P.O. Box 629 

Raleigh, N.C. 27602 

(919) 716-6900 

  

enactment of the 1998 congressional plan which substantially modified the 
boundaries of these four districts. Neither the Cromartie or Daly plaintiffs 
have amended their complaints to challenge District 12 in the 1998 plan. 
Because Districts 1 and 3 were re-enacted in the 1998 legislation with no 
modifications to their boundaries, these claims by the Cromartie and Daly 
plaintiffs are not moot. 

 



— 

Ja 

DECLARATION OF DR. RONALD E. WEBER 

[Caption omitted in printing] 

38. To sum up my conclusions about the predominant 
use of race and the subordination of race-neutral traditional 
districting principles to race by the state of North Carolina in the 
creation of the Congressional districts in 1997, I find that a 
significant number of persons are assigned to districts in eastern 
North Carolina and the Piedmont Region based on race. I 
conclude that race was a predominant factor in the construction 
of Districts 1, 3, 9, and 12. To a lesser extent race also affected 
the drawing of Districts 5, 6, and 10 in that certain counties in 
those districts were split on a racial basis. I also conclude that 
race-neutral traditional districting principles were subordinated 
in the creation of these districts. The state of North Carolina did 
not adhere to compactness in creating the districts, more 
counties, cities, and towns were split than needed in constructing 
the districts, and community of interest regions were not 
followed in the design of the districts. I found districts 3, 9, and 
12 to be only technically contiguous, and that those three 
districts were not functionally contiguous. 

OI. NUMEROSITY AND CONCENTRATION OF 

AFRICAN-AMERICAN VOTERS 
  

  

39. I conclude that the African-American voting age 
population in no part of North Carolina is sufficiently numerous 
or geographically compact enough to be a majority of voters 
using traditional districting principles to draw a single-member 
Congressional district. An equitably populated Congressional 
district in North Carolina needs a total population of about 
552,386 persons using 1990 Census of Population data. First, an 
examination of maps and statistical data at the county, city, and 
precinct levels by race indicates that there are is [sic] only one  



  

6a 

DECLARATION OF DR. RONALD E. WEBER, 
CONT’D.... 

potential area where one might locate enough African-American 

persons of voting age to create a geographically compact district. 

The area is in the northeastern part of the state located primarily 

among the counties of the Inner Coastal Plain region. 

* * * * 

CONCLUSION 
  

46. On the basis of my above analysis, I conclude: 

(1) that race was the predominant factor used by the 

state of North Carolina to draw the boundaries of the 

1997 U.S. Congressional districts; 

(2) that the state of North Carolina in creating the 1997 

U.S. Congressional districting plan subordinated 

traditional race-neutral districting principles, such as 

compactness, contiguity, respect for political 

subdivisions or communities defined by actual shared 
interests, to racial considerations; 

(3) that the African-American voting age population in 

North Carolina (particularly the northeastern part of the 

state) is not sufficiently large nor geographically 

concentrated enough to constitute a potential voter 

majority using traditional districting principles to draw 

a single-member Congressional district; 

(4) that the majority-minority U.S. Congressional 

Districts 1 and 12 in the 1997 North Carolina plan is 

overly safe from the standpoint of giving a candidate of 

choice of African-American voters an opportunity to be 

elected, thus questioning whether the plan was narrowly 

tailored to satisfy a compelling state interest. 

I declare under the penalty of perjury that the foregoing 

   



Ta 

DECLARATION OF DR. RONALD E. WEBER, 
CONT'D... 

is true and correct. 

Executed on this twenty third day of March, 1998. 

/s/ Ronald E. Weber, Ph.D.