Motion to Affirm or, in the Alternative, to Dismiss, of Appellee-Intervenors with Certificate of Service

    Mar 07 G0 04:87p "0@® BOYLE 

IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

EASTERN DIVISION 

No. 4:96-CV-104-BO(3) 

MARTIN CROMARTIE, ef al., 

Plaintiffs, 

v. 

CONCURRENCE AND DISSENT 
  JAMES B. HUNT, JR, in his official 

capacity as Governor the State of North 
Carolina, ef al, i. 

Defendants. 

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THORNBURG, District Judge, sitting by designation as Circuit Judge, concurring in part and dissenting in part: 

I join the majority in concluding that the First Congressional district is constitutionally 

drawn, but respectfully dissent from the reasoning of the majority in reaching that conclusion, I 

dissent from the majority opinion finding the Twelfth Congressional district to be an 

vnconsitutions] racial gerrymander. I also write to address the issue of Ronald Linville’s right 

to remain a party plaintiff in this action. 

I. BACKGROUND 

In early 1997, the North Carolina General Assembly, for the third time in the decade, 

undertook the responsibility of redrawing the boundaries of North Carolina’s congressional 

districts.” Operating under a court imposed deadline of April 1997 to redraw congressional 

  

* The General Assembly redrew the districts for the fourth time in 1998 pursuant to this Court’s order, and now will be required to do so for the fifth time in early 2000. 

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district boundaries, the politically divided General Assembly faced the task of quickly reaching a 

consensus on the divisive and inherently political issues involved. In addition to the traditional 

constituency concerns, the pull of party loyalty, incumbency issues, special interests, and turf 

protection, the General Assembly was forced to contend with a host of outside forces seeking to 

influence the process. Looming over the evil morass of political decision-making was the 

federal court system, a Justice Department which from oust experience was willing to withhold 

preclearance under Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c, and the ever present 

threat of litigation under Section 2 of the same Act. In addition, able private litigants on both 

sides of the issue stood ready to sue the State of North Carolina in the event that racial motives 

controlled the process, or in the event that the process was not racially fair. From this cauldron 

"of conflictin g agendas and influences, the majority concludes that the predominant motivating 

factor of the 170 legislators in the General Assembly as they drew the redistricting plans for the 

First and Twelfth Districts was race. This is a particularly disturbing conclusion under the 

history, the facts, and the law of this case. 

That the General Assembly was not completely paralyzed by the demanding task it faced 

is a testament to the efforts of the legislators themselves, and particularly to the committee 

chairmen who crafted a plan that would pass both houses. Central to the General Assembly’s 

motivation was the desire not to forfeit the responsibility of drawing constniions! districts to 

the federal courts, as had happened in Georgia, Texas, and Illinois. To suggest that the General 

Asserbly could navigate these treacherous waters without being aware of the issue of race 

would be absurd because race loomed as the reason why the General Assembly had to redraw 

districts in the first place. But, the 1992 Plan is not the plan being considered by this Court. The 

conclusion that racial motivations impermissibly predominated, in a process where 

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consciousness of race is not prohibited," fails to evaluate Plaintiffs’ burden of proof and 

insufficiently credits the plain and direct testimony of the two state legislators who were the 

driving force behind the 1997 congressional redistricting plan. 

11. JUDICIAL DEF ERENCE 

The Constitution leaves with the States primary responsibility for apportionment of their 

federal congressional districts. U.S. Constitution, Article I, § 2, as amended by Amendment 

XIV § 2. “We say once again what has been said on many occasions: reapportionment is 

primarily the duty and responsibility of the State through its legislature or other body, rather than 

of a federal court.” Chapman v, Meier, 420 U.S. 1, 27 (1975) (citing Revaolvs, Sims, 377 U.S. 

533, 586 (1964)) (other citations omitted). In the matter of redistricting, courts owe substantial 

deference to the gids which is fulfilling “the most vital of local functions” and is entrusted 

with the “discretion to exercise the political judgment necessary to balance competing interests.” 

Miller v. Johnson, 515 U.S. 900, 915 (1995). The Court must presume the legislature acted in 

good faith absent a sufficient showing to the contrary. Id. Consequently, this Court must grant 

North Carolina’s General Assembly substantial deference concerning its decisions related to the 

1997 redistricting plan. In deciding this case we should avoid the temptation to legislate for the 

General Assembly. Jd. Under the facts of this case and the Supreme Court's decisions, judicial 

activism is neither necessary nor desirable. The majority would mask its unwarranted intrusion 

into the North Carolina legislative process by correctly observing the duty of a federal court to 

  

" In dealing with an equal protection lawsuit involving mixed motives in the drawing of congressional districts, “strict scrutiny does not apply merely because redistricting is performed with consciousness of race.” Bush v. Vera, 517 U.S. 952, 958 (citing Shaw v. Reno, 509 U.S. 630, 646 (1993) (Shaw I)). : 

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“uphold the Constitution and laws of the United States.’ Majority Opinion, at 18-19, n.7. They 
ignas, however, Judge Johnson’ § qualifying words: “[It is] when governmental institutions fail 
to make. .. judgments and delistore) In a manner which comports with the constitution [that] 
federal courts have a duty to remedy the violation.” 4. Thus, while espousing judicial restraint, 
the majority will again declare the Twelfth District unconstitutional and return the districting 
plan to the General Assembly for correction. This approach ignores the principles of federalism 
which require federal courts to exercise deference and restraint in altering the state redistricting 
decision in the first place. 

HI. STANDARD OF REVIEW 
  

Strict scrutiny should not be applied to the decision of North Carolina’s General 

Assembly merely because redistricting was performed with consciousness of race. See nl, 

supra. As previously observed, the Voting Rights Act dictates that race may not be ignored. 

See e.g., Johnson v. Grandy, 512 U.S. 997 (1994); Holder v. Hall, 512 U.S. 874 (1994); 

Voinovich v. Quilter, 507 U.S. 146 (1993). For strict scrutiny to apply, the burden is on the 

Plaintiffs to show that “other, legitimate districting principles were ‘subordinated’ to race,” ie, 
that race was “the predominant factor motivating the teghilRtore’s [redistricting] decision.” 

Bush, 517 U.S. at 959 (citing Miller, 515 U.S. at 916) (emphasis added). Plaintiffs may meet 
this burden through either “circumstantial evidence of a district’ s shape and demographics” or 

through “more direct evidence going to legislative purpose.” Miller, 515 U.S. at 916. In Miller, 
the Supreme Court recognized certain factors as legitimate districting principles, “including, but 

not limited to compactness, contiguity, and respect for political subdivisions or communities 

defined by actual shared interests.” 74 Incumbency protection, at least in the limited form of 

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Mar 07 00 04:358p a | BOYLE 

  

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“avoiding contests between incumbent[s),” has also been recognized as a legitimate state goal. 

Bush, at 964 (citations omitted). Likewise, the Supreme Court has repeatedly held that states 

“may engage in constitutional political gerrymandering, even if it so happens that the most loyal 

Democrats happen to be black Democrats and even if the State is conscious of that fact.” Hunt 

v. Cromartie, 526 U.S. 541, ___, 119 S. Ct. 1543, 1551 (1999) (emphasis added). 

Evidence that blacks constitute even a supermajority in one congressional district while amounting to less thana plurality in a neighboring district will not, by itself, suffice to prove that a jurisdiction was motivated by race in drawing its district lines when the evidence also shows a high correlation between race and party preference. 

Id. Only where race predominates over legitimate districting principles will strict scrutiny apply 

to a State’s redistricting decision. 

The burden of proving that racial motives predominated over legitimate districting 

principles is not easily met. This difficulty is due in part to the inherent nature of any legislative 

decision where numerous motives and influences are at work. Concurring in the Miller decision, 

Justice O'Connor further clarified the rigorous nature of the Plaintiffs’ burden: 

I understand the threshold standard the Court adopts... . to be a demanding one. To invoke strict scrutiny, a plaintiff must show that the State has relied on race in substantial disregard of Customary and traditional districting practices . . . [Alpplication of the Court's standard helps achieve Shaws basic objective of making extreme instances of gerrymandering subject to meaningful judicial Ieview. 

Miller, 515 U.S. at 928-29 (cmphasis added). See also, Quilter v. Voinovich, 981 F. Supp. 

11032, 1044 (N.D. Ohio 1997) (“We therefore follow Justice O’Connor’s lead in applying a 

demanding threshold that allows states some degree of latitude to consider race in drawing 

districts.”), afd, 523 U.S. 1043 (1998). As a result of this high threshold, a State which does 

no more than take race into consideration in the redistricting process will not be subjected to 

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   Mar 07 00 04:58p “0 BOYLE = 

strict scrutiny, Bush, 517 U.S. at 958. Even a State's decision to intentionally create a 

minority-majority district will not necessarily be subject to strict scrutiny, Id. 

‘In applying this high threshold standard to the case at hand, it is this Court's 

responsibility to closely Senne all of the evidence to determine whether by a preponderance of 

the evidence the North Carolina General Assembly substantially disregarded legitimate 

districting principles, including tstuiorty protection and political motivations, and 

subordinated those principles to race in the districting process. Only then can strict scrutiny be 

applied to the decision of the state legislature. F urthermore, each challenged district must be 

evaluated separately to determine whether strict scrutiny will apply to that district. In situations 

where “it is clear that race was not the only factor that motivated the legislature to draw irregular 

district lines,” each challenged district must be scrutinized individually to determine whether the 

legislature relied on race in substantial disregard of legitimate districting principles. Bush, 517 

U.S. at 965. The legislature's motivation as to one district cannot be transferred to another, 

IV. DISCUSSION 
  

Initially, I note that the 1997 plan must be addressed based on its own merit, not on any 

resemblance to the 1992 Plan. The majority opinion appears ta have recognized this rule of law 

in noting that the Court’s role is limited tq determining “whether the proffered remedial plan is 

legally unacceptable because it violates anew constitutional or statutory votin g rights—that is, 

whether it fails to meet the same standards applicable to an original challenge of a legislative 

plan in place.” McGhee v. Granville County, N.C., 860 F.2d 110, 115 (4* Cir. 1988) (citing 

Upham y. Seamon, 456 U.S. 37, 42 (1982)). Nevertheless, the majority makes reference to the 

“unconstitutional” 1992 Plan in criticizing both the First and Twelfth Districts under the 1997 

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Plan. This criticism essentially mirrors the “footprint” argument advanced by Plaintiffs, and 

therefore is equally flawed. 

“Plaintiffs contend that any district which is based on the “footprint” of a prior 

unconstitutional a is inherently invalid. This suggests that the legislature must begin with 

a completely clean slate in order to Wipe away the vestiges of prior unconstitutional districts. 

Thus, the North Ganaiizie General Assembly could not use the unconstitutional 1992 Plan as the 

beginning point for creating the 1997 Plan. However, given that the task of the General 

Assembly in 1997 was to correct the defects of the 1992 plan, it should be permissible to use the 

  

1992 Plan as the starting point for creating a constitutional plan. Further, it would be illogical to 

argue that the unconstitutional aspects of a decision made by legislators in 1992 somehow taints 

the actions of a completely different legislative body in 1997. Most importantly, requiring a 

legislature to start completely from scratch makes their task nearly impossible because 

congressional incumbents and state legislators will invariably demand the preservation of as 

much of the geographic core of districts as possible, a political reality explained in testimony at 

the trial." Indeed, the undersigned can think of no reason 5) a legislature may not simply 

address the offensive aspects of an unconstitutional district, cure those defects, and thereby 

create a constitutional district. 

  

" Indeed, Senator Roy Cooper, chairman of the Senate Redistricting Committee testified at trial that he did not think the General Assembly could have drawn a plan from square one which would have passed because state legislators and congressional incumbents both wanted districts which preserved as much of their geographic cores as possible. Trial Transcript, at 350, lines 12-25. Likewise, Plaintiffs’ own expert agreed that legislatures generally try to avoid disrupting the relationship between incumbents and their voters, testifying that “whatever 
districts [incumbents] end up with, they tend to, in the end, like and wish to preserve as long as they can. That's been an observation over decades and decades of study of redistricting.” Id., at 
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Mar 07 00 04:5Sp “®° BOYLE 

A. The Twelfth Congressional District 

To show that racial motives Prelominaedin the drawing of the Twelfth District, 
Plaintiffs had the burden of proving by a preponderance of the evidence that the legislature 
substantially disregarded legitimate districting criteria and subordinated those criteria to the 
1 racial motivation, A thorough treatment of Plaintiffs’ burden is noticeably absent from 
the majority opinion, but this burden must not be overlooked or disregarded. Plaintiffs quite 
simply have failed to carry their burden through either direct or circumstantial evidence." 
Defendants, on the other hand, have produced ample and convincing evidence which 
demonstrates that political concerns such as existing constituents, incumbency, voter 

performance, commonality of interests, and contiguity, not racial motivations, dominated the 
process surrounding the creation and adoption of the 1997 redistricting plan. 

Finding that race was the predominant motivation and applying strict scrutiny to the 
Twelfth District fails to evaluate the redistricting process within the context of the legislative 

environment where such decisions occur. 

Passing a redistricting plan in a limited time period, under a federal court order, and in a 

politically divided General Assembly seemed like an impossible task early in 1997. Trial 
Transcript, at 475, lines 5-12. In order to succeed, the chairmen of the House and Senate 

Redistricting Committees foguizid the necessity of creating a plan which would ar the 

support of both parties and both houses. Id., at 335, lines 4-10; at 338, lines 19-22. 

  

" Plaintiffs conducted their case as if they were entitled to a presumption that race predominated and merely had to rebut Defendants’ efforts to overcome this presumption. However, Plaintiffs are entitled to no such presumption, not by their past success in this area or previous success in this case at the summary judgment stage. The burden of proof lies squarely on the shoulders of Plaintiffs, and they have failed to adequately carry that burden. 

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Consequently, they set out to design a plan which, in addition to addressing the constitutional 
deficiencies of past plans, would protect incumbents and thereby maintain the then existing 6-6 
partisan split amongst North Carolina's congressional delegation. Id, at 475, lines 13-23; at 
338, lines 1-7. Because both the First and Twelfth Districts had Democrat incumbents, and 
maintaining the 6-6 split was viewed as imperative, preserving a strong Democratic Twelfth 
District which protected incumbent Mel Watts’ political vase was absolutely necessary. 
Affidavit of Roy A. Cooper, 1, filed March 2, 1998, atq 10. In creating such a district, 
common sense as well as political experience dictated ascertaining the strongest voter- 
performing Democratic precincts in the urban Piedmont Crescent. That many of those strong 
Democratic performing precincts were majority African-American, and that the General 
Assembly leaders were aware of that fact, is not a constitutional violation." Those precincts 

their racial makeup.” North Carolina’s legislative leaders have openly admitted to being aware 
of the race issue, to being conscious of the racial percentages of the districts they drew, and to 
recognizing that their redistricting plan could potentially be subjected to federal scrutiny yet 
again as a challenged racial gerrymander.' Yet, these were merely some of the numerous 
  

'S All parties agree that African-American voters in North Carolina are extremely loyal Democratic voters, with over 95% of African-American voters in North Carolina registered and voting accordingly, Trial Transcript, at 388, lines 2-7, 

"" The fact that the majority of African-American legislators in the North Carolina House of Representatives voted against the enactment of the 1997 redistricting plan, Trial Transcript, at 478, lines 3-13, tends to undermine the conclusion that the legislature des; gned districts which impermissibly favored African-Americans. 

" The majority points to the Cooper-Cohen e-mail as evidence of a “methodology for segregating votes by race.” Majority Opinion, at 23. The majority also suggests that sinister inferences arise from Senator Cooper's statements on the legislature floor that the Shaw test for 

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political considerations which legislative leaders had tg account for in designing a plan which 

  

would pass, 

The expert testimony of Dr. David W. Peterson, the unbiased statistician whose opinions 
were referenced by the Supreme Court in Hunt v. Cromartie, supports Defendants’ position. Dr. 
Peterson opined that, based purely on the Plaintiffs’ circumstantial statistical evidence, politics 
was at least as plausible a motivating factor as race in the drawing of the Twelfth District. Trial 

. Transcript, at 486-88. In other words, the statistical evidence before the Court does not support 
the proposition that race predominated as a motivation, Yet, it is this same equivocal statistical evidence which forms the backbone of the Plaintiffs’ case. 

In an attempt to rebut this argument, Plaintiffs relied primarily on the testimony of their 
expert witness, Dr. Ronald Weber.” Dr, Weber also plays a prominent role in the majority 
  

predominated. And they certainly do not amount to the “smoking gun” status which Plaintiffs would have the Court believe. : 

players in the General Assembly's decision-making process. Three of those witnesses were not 
direct involvement with that process. Trial Transcript, at 89, lines 2-7 (R.O. Everette); at 104, 105, lines 1-18 (J.H. Froelich, Jr.); at 113, lines 12-19 (Neil Williams). Of the three witnesses who were members of the General Assembly during the relevant (ime period, none claimed to have had a significant involvement with or specific knowledge of the decision-making process. Nevertheless, each confidently expressed the opinion that racial motivations did predominate as to the Twelfth District. ; 

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opinion. Dr, Weber argued that the North Carolina legislature failed to include numerous 
precincts in the Twelfth District which had high levels of Democratic support, but which were 
not majority African-American. Consequently, he contended the legislature must have been 
more focused on race than op creating a Democratic district. Dr. Weber also criticized Dr, 
Peterson’s findings as “unreliable” and not relevant, Trial Transcript, at 232, lines 1-8. 
However, itis the testimony of Dr. Weber, who admitted his belief that legislative bodies should 
not be trusted to draw district lines, which the undersigned finds lacking in credibility. Id., at 
281, lines 3-14; United States v. Turner, 198 F.3d 425, 429 n.2 (4™ Cir. 1999) (citing Davis v. 
Alaska, 415 U.S. 308, 316 (1974) (“The partiality of a witness is always relevant as 
discrediting the witness and affecting the weight of this testimony.™). This stated bias is 
evident throughout his testimony and undermines both his criticism of Dr. Peterson as well as his 
assertion that political explanations fail to explain the composition of the Twelfth District. His 
“hired gun" mentality and obvious prejudice against legislatures fulfilling “the most vital of 
local functions,” atlest to the unreliability of his conclusions, Miller, 515 U.S. at 915. 

Grenadin Dr. Weber’s lack of credibility, his arguments still do little to advance 
Plaintiffs’ position. First, there is no route that every one of the majority African-American 
precincts included in the Twelfth District are among the highest, if not the highest, Democratic 
performing districts in that geographic region. Thus, although Dr. Weber pointed to other 

precincts which he suggests are highly Democratic in performance, this does not explain why 

  

20 As the majority notes, Dr. Weber has testified in over 30 racial gerrymandering cases. Exhibit 49. In the dissent in Johnson v. Mortham, 926 F. Supp 1460 (N.D. Fla. 1996), Circuit Judge Hatchett criticized Dr. Weber's testimony as lacking credibility because Weber had previously testified in support of the “Margolis plan” in 1992, but now purported to testify against the subscquent plan which he admitted was practically identical. Id, at 1505 n.11, 1513. 

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Mar U7 UU US:Ulp CHIEF JUDGE BOYLE a 

any of the highest performing Democratic precincts should be excluded from the Twelfth 
District. Furthermore, Dr. Weber's entire line of criticism ignored geographic realities and one- 

. Person, one-vote principles. Weber admitted that the precincts which he argued are strongly 
Democratic were chosen without considering where they were located.?' Trial Transcript, at 
286-88. Further, under one-person, one-vote principles, Weber's precincts could not all possibly 
be included in the Twelfth District without removing a corresponding number of voters from 
dined; in the dainn® 1d. Finally, Weber's analysis is flawed due to the incorrect 
assumptions under which he conducted his study. Weber admitted he considered no hypothesis 
other than race as the legislatures predominant motive, and he specifically failed to inquire 
about real world political or partisan factors which might have influenced the process. Id, at 
258, lines 2-11. Ore reason for the focus on race was Dr. Weber's incorrect belief that the 
person drawing North Carolina’s districts could only see racial data, when in fact North 
Carolina's computer screens displayed information on political breakdowns of both voter 
registration and voter performance Id, at 261, lines 4-8. This error, his failure to account for 
  

*! On cross-examination, the Defendants presented maps which showed that few highly performing Democratic precincts actually abutted the Twelfth District. Exhibits 140-142; Trial Transcript, at 290-292; at 294, lines 20-25. Consequently, few of the strong Democratic precincts to which Dr, Weber referred could have easily been included in the Twelfth District, 
* The undersigned notes here that just because North Carolina was able to draw a more compact Twelfth District in 1998 which still performed for the Democrats does not mean that the 1997 Twelfth District was necessarily unconstitutional. 

PQ. Isn’tit true that you only considered race because you believed the North Carolina computer system only displayed racial breakdowns and did not display political breakdowns? 
A.  Atthat time I had not seen the screens for North Carolina. I had seen the screens in Louisiana. And in Louisiana, they did not prominently display political information on the screen, 

Trial Transcript, at 259, lines 16-23. 

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Mar 07 0Q 03:01p CHIEF ® BOYLE 

other potential factors, the flaws in his arguments, and his ingrained personal bias combize to 
‘undermine his subsequent conclusions and criticisms. In the end, the undersigned sees no reason 
to give any weight to the opinions of Dr. Ronald Weber and fails to understand the majority 
reliance on such a thin reed. 

Another significant shortcoming of the majority’s analysis is the failure to adequately 
credit the testimony of the two men who were the driving force behind the creation of the 1997 
Redistricting Plan. Senator Roy Cope, ITI, served as the Democrat chair of the Senate 
Redistricting Committee and Resuseniative Edward McMahan acted as the Republican chair of 
the House Redistricting Committee. They were responsible for developing a redistricting plan 
that could pass both houses and for marshaling it through the legislative process. They indicated 
that the 1997 plan and the formulation of its boundaries came primarily from their personal 
negotiations with each other. Id. at 463, lines 3-5. Both testified that correcting the 

constitutional defects of the previous plan and passage of the bill by ensuring a 6-6 partisan split 
were the two central goals in developing the 1997 plan. Trial Transcript, at 334; at 475, lines 
13-25. Indeed, each testified under oath that politics, not race, was the predominant motivating 
factor in the Plan’s development, with Senator Cooper going so far as to call partisan fairness an 
“overriding factor.” Id., at 337, lines 7-10. This Court's finding that racial motives 

predominated in the legislative process directly contradicts their express testimony. 

In contrast to Plaintiffs, the Defendants adequately supported their position with 

convincing evidence, even though they had no burden of proof in this trial. Senator Cooper and 
Representative McMahan detailed the motivations behind their actions, at times expressing 
regret for having to expose the naked political nature of their conduct. Id, at 423, lines 4-12. In 

addition to incumbency protection, other Bntors considered by the General Assembly included 

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CHitr JUDGE BQYLE 

  

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increasing geographic olga: and reducing the number of split counties and precincts. 5, 
at 349, lines 16-25; at 475, lines 13-25. The 1997 T WE District as adopted reflected the 

legislators’ focus on these legitimate districting criteria, The 1997 Twelfth District is more 
compact, splits fewer counties and precincts, and is much more pleasing to the eye than the 
previous District, Id., at 334, lines 7-15. The General Assembly shortened the District from 
191 to 102 miles, moved 60 percent of the geographic area and 30 percent of the population out 
of the District,” and eliminated the long narrow corridors and other objectionable characteristics 
which had previously been criticized. Id, at 349, lines 16-23. Most importantly, the Twelfth 
District is nota minority-majority district by any traditional measurement, numbering 46.67 
percent African-American in total population and only 43.36 percent African-American in 
voting age population. Final Pre-Trial Order, at § 26. 

Furthermore, the General Assembly had before it abundant evidence of a clear 

community of interest in the Twelfth District? The three urban areas located along the 
Interstate-85 industrial corridor, known as the Piedmont Crescent, share common characteristics 

and face similar problems. North Carolina’s Section 5 Submission, 1997 Congressional 
Redistricting Plan, 97C-28F-3B, Tab 10. Ope Statement submitted at a public hearing 
described the Twelfth District as “riety urban in its dominant issues,” some of which were 

described as affordable housing, alternative transportation, air and water quality, and various 

  

* Final Pre-Trial Order, filed November 29, 1999, at ’s 36-37. This included moving 4 out of 10 counties into other districts. Id., at § 30. 

» Substantial evidence from both private citizens and politicians concerning the benefits of having a Piedmont Crescent district was submitted at the public hearings and therefore was before the legislature. North Carolina’s Section 5 Submission, 1997 Congressional Redistricting Plan, Volume IV. 

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other complex issues found in an increasingly populated and urban area. Id, at Tab 11, at { 8- 
9. As a consequence, the urban voters in the Twelfth District as prescatly configured have much 
more in common with each other than with rural voters living on the distant outskirts of those 
urban cities.” Id, Senator Cooper felt that maintaining this community of interest was one of 
the legislatures motivating factors, and indeed, the 1997 Twelfth District as drawn reflected and 
protected the clear community of interest in the Piedmont Crescent. Affidavit of Senator Roy 

~ A. Cooper II, at q 9. 

The evidence presented by Defendants demonstrates that politics predominated in the 
drawing of the Twelfth District in 1997. Plaintiffs evidence does nothing more than address the 
admitted fact that legislative leaders were aware of the race issue, or perhaps that the Twelfth 
District could have possibly been drawn in a different way 10 accomplish the legislature’s stated 
political goals. Such evidence does not meet Plaintiffs’ heavy burden of showing by a 
preponderance of the evidence that racial motives predominated in substantial disregard of 
legitimate districting criteria. 

In some circumstances, incumbency protection might explain as well as, or better than, race a State’s decision to depart from other traditional districting principles, such as compactness, in the drawing of bizarre district lines. And the fact that, “[a]s it happens, . . . many of the voters being fought over [by the neighboring Democratic incumbeats] were African-American,” would not, in and of itself, convert a political gerrymander into a racial gerrymander, no matter how conscious redistricters were of the correlation between race and party affiliation. See Shaw I, 509 U.S. at 646, 113 S.Ct, at 2826. If district lines merely correlate with race because they are drawn on the basis of political affiliation, which 
  

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correlates with race, there is no racial classification to justify, just as racial disproportion in the level of prosecutions for a particular crime may be unobjectionable if they merely reflect racial disproportions in the commission of that crime. : | 

If the State's goal is otherwise constitutional political gerrymandering, it is free to use the kind of political data on which Justice Stevens focuses — precinct general election voting patterns, precinct primary voting patterns, and legislators’ experience — to achieve that goal regardless of its awareness of its racial implications and regardless of the fact that it does so in the context of a majority- minority district. To the extent that the District Court suggested to the contrary, it erred. 

Bush, 517 U.S. at 967-68 (citations omitted). Only to the extent race is used as a proxy for 
political characteristics will strict scrutiny be applied to otherwise permissible political 
gerrymandering. Id. Therefore, I conclude that strict scrutiny should not be applied to the 
Twelfth District. 

B. The First Congressional District 

The First District in the 1997 Plan is 50.27 percent African-American in total population 
and 46.54 percent African-American in voting 224 population. Final Pre-Trial Order, at q 27, 
Thus, the First District is the only majority-minority district in North Carolina in terms of total 
population, and no congressional district in this state is majority-minority in terms of voting age 
population. However, this fact does not change the applicable legal standard. A State’s decision 
to intentionally create a majority-minority district is not necessarily subject to strict scrutiny. 
Bush, 517 U.S. at 958. Plaintiffs still have the burden of showing by a preponderance of the 
evidence that race was the predominant factor motivating the legislature’s decision and that 
legitimate districting criteria were subordinated to race. Miller, 515 U.S. at 916. 

Senator Cooper and Representative McMahan testified that they were motivated to create 

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a majority-minority district in the Northeastern area of the state to avoid concerns under the 

Voting Rights Act. Trial Transeript, at 365, lines 10-25; at 464, lines 5-8. However, their 

motivation was predicated on the knowledge that they could create a compact, contiguous 

district in Northeastern North Carolina which focused on an undeniable community of interests. 

[Als we weat through the process it became clear that we could draw a nice, 
compact district that made geographic sense, that put together communities of 
interest, that was a strongly leaning Democratic district, that was slightly 
majority-minority population. ~ 4 

Id., at 359, lines 18-23, 

District | is a largely agrarian rural district. It has a lot of medium sized towns. I 
think uniquely [in] Eastern North Carolina you have the 30 to 50,000 population 
towns with largely rural areas. A lot of these ccunties are largely poorer counties, © 
they are very high up on our economic tiers of depressed counties. So I think that 
there’s a great community of interest in Northeastern North Carolina with those 
counties that are up there. 

Id., at 368, lines 8-15. 

Likewise, Senator Cooper and Representative McMahan were concerned with creating a 

geographically compact district. McMahan in particular focused almost exclusively on 

geographical considerations and “making the district look good.” Id., at 467, lines 22-25. ‘And 

indeed, the 1997 redistricting process resulted in a fairly compact and normal looking 

congressional district in Northeastern North Carolina. The perimeter and dispersion 

compactness indicators of the First District are not much lower than the mean conipactness 

indicators for North Carolina’s twelve districts.’ Neither number is low enough to raise a “red 

  

*’ The First District has a dispersion compactness indicator of 0.317 and a perimeter 
compactness indicator of 0.107. Gerald R. Webster, “An Evaluation of North Carolina’s 
1998 Congressional Districts,” Table 3; Defendants’ Exhibits 421-22. The mean numbers for 
North Carolina’s twelve congressional districts are’.354 and .192 respectively. Id. 

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°« Up willioir Jub BUYLE ——— 

flag” according to the criteria set out in the Pildes and Niemi study.” Furthermore, as the 

majority correctly observes, where the borders of the First District have significant irregularities, 

those irregularities are attributable to political motivations, namely the desire to protect 

incumbents and avoid putting two congressional incumbents in a single district. Majority 

Opinion, at 29, Therefore, although it was the intent of Senator Cooper and Representative 

McMahan to create a minority-majority district in Northeastern North Carolina, this decision 

was based on legitimate districting principles. Quite simply, once they knew they could create a 

  

compact, contiguous district which addressed the community of interests in Northeastern North 

Carolina, they felt they should do so. Trial Transcript, at 365, lines 17-24. 

  

The majority reaches a different conclusion, however, and applies strict scrutiny to the 

First District.” The majority characterizes the racial composition of tke First District as “a 

mandale, a necessity,” and therefore concludes that racial motives predominated. Majority 

Opinion, at 26. In support of this conclusion, the majority cites the Cooper-Cohen e-mail which 

refers to the desire to “boost the minority percentage in the first district” to create an “improved” 

district. Also, the majority pelos to Senator Cooper’s acknowledgment at trial that he felt the 

need to have over 50 percent minority representation in the First District. Based upon these 

  

* That study suggested that a “red flag”should be raised when a perimeter compactness indicator is below .05 and a dispersion compactness indicator is below .15. Webster, at 13 (citing Pieldes & Niemi, Expressive Harms, “Bizarre Districts,” and Voting Rights: 
Evaluating Election-District Appearances After Shaw v. Reno, 92 Mich.L.Rev. 483, 571- 573, Table 6 (1993)); Plaintiffs’ Exhibit 217. 

® After applying a strict scrutiny standard, the majority concludes that the First District is not an unconstitutional racial gerrymander, finding a compelling state interest under § 2 of the Voting Rights Act and narrowly tailored means. Although I strongly feel that the evidence before the Court does not warrant the application of strict scrutiny, I agree with the majority’s analysis concerning the application of the Gingles factors to the First District. 

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Mar U7 UU UbS:Udp CHIEF $ BOYLE —— 

statements, the majority concludes that the General Assembly “continued to use race as the 
predominant factor in creating the majority-minority First District, and thus strict scrutiny must 
apply.” 1d. at 27. 

However, these statements merely highlight the admitted and permissible reality: the 
North Carolina General Assembly intentionally created a majority-minority district (in terms of 
population only) in Northeastern North Carolina. But despite the intent to create a majority- 
minority district, the evidence does got show that racial motives predominated in substantial 

- disregard of legitimate criteria like compactness, contiguity, and communities of interest. Trial 
Transcript, at 365, lines 10-25. On the contrary, the direct testimony shows that the legislature 
addressed traditional, legitimate districting criteria and determined that a majority-minority 
district in Northeastern North Coraling was appropriate. Indeed, the criteria of communities of 
interest and geographical compactness were uppermost in the legislators’ minds, Considering 
the evidence before the Court in light of the deference due the state legislative decision, my 
understanding of the applicable legal standard forces me to conclude that race did not 

impermissibly predominate in the districting process and thercfore strict scrutiny should not 
apply to the First Congressional District. 

  

** The majority purports to find that “under the 1992 plan, the First District was not narrowly tailored and therefore that district was in violation of the Constitution.” Majority Opinion, at 26. However, this Court has no authority to find that the First District under the 1992 Plan was unconstitutional. Due to a standing issue, the Supreme Court in Shaw II did not make a ruling on that district, Sha v. Hunt, 517 U.S, 899, 904 (1996). Neither this Court nor any court has made a legal ruling onthe constitutionality of the 1992 First District. Cromartie v, Hunt, 4:96-CV-104-BO(3), Order filed June 21, 1998, at 2. The 1992 Plan no longer exists, is not currently being challenged by Plaintiffs in this case, and simply is not an issue before this Court. To the extent the majority’s application of the strict scrutiny is predicated on a comparison to the 1992 First District, such reliance is patently wrong. See discussion supra, at 6-7. 
; 

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V. REMEDY 

1 also respectfully dissent from the decision to require the General Assembly once again 

to redraw the Twelfth District. 

The filing period for Congressional candidates began on January 3, 2000, and ended on 
February 7, 2000. N.C, Gen. Stat, § 163-106(c). The General Assembly is not scheduled to 

reconvene until May 2000, the same month that North Carolina will conduct its primary 

elections. Forcing the General Assembly b call a special session to address this Court’s ruling 

creates a plethora of problems. Ongoing election preparation will be interrupted as 

congressional candidates will be forced to refile and redesign their election strategies. Citizen 

confidence in the electoral process will be undermined by the repeated reconfiguration of 

clection districts. While cost is not a foto to be considered in tailoring a constitutional remedy, 

it will be a concern to citizens hoping for closure in this long-running litigation. Also of no 

small concern is the time necessary for § S pre-clearance of changes from the ‘97 or ‘98 plans, 

the probability of litigation under § 2 of the Voting Rights Act in the event of major changes in 
district lines, and the virtual certainty of another challenge by Plaintiffs if the new lines do not 
meet their satisfaction. To suggest that new districts, hastily drawn pursuant to this Court’s 

Order, could have a salutary effect on the 2001 decennial redistricting is purely speculative in 

view of the major change anticipated in the North Carolina population since 1990. In short, 

requiring the North Carolina General Assembly redraw congressional district lines for the year 

2000 election, based as they must be on 1990 census figures, is unjustified, unnecessary and, 

quite probably, an abuse of discretion. 

There is Supreme Court precedent for this Court to consider “the proximity of a 

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forthcoming election and the mechanics and complexities of state election laws” in fashioning 
appropriate remedics for constitutional violations in redistricting cases. Reynolds, 377 U.S. at 
585. There is also Supreme Court precedent for allowing an election to proceed under an 
unconstitutional plan where an election js impending. Ely v. Klahr, 403 U.S. 108 (1971). 

|Als we have often noted, districting and apportionment are legislative tasks in the first instance, and the court did not err in giving the legislature a reasonable time to act based on the 1970 census figures which the court thought would be available in the summer of 1971. _ . [T]he District Court should [then] make very sure that the 1972 elections are held under a constitutionally adequate [redistricting] plan. : 

Id, at 114-15 (footnote omitted), 

[Olnce a State’s legislative apportionment scheme has been found to be unconstitutional, it would be the unusual case in which a court would be justified in not taking appropriate action to insure that no further elections are conducted under the invalid plan. However, under certain circumstances, such as where an impending election is imminent and a State’s election machinery is already in progress, equitable considerations might justify a court in withholding the granting of immediately effective relief in 2 legislative apportionment case, even though the existing apportionment scheme was found invalid. In awarding or withholding immediate relief, a court is entitled to and should consider the proximity of a forthcoming election and the mechanics and complexities of state election laws, and should act and rely upon general equitable principles. With respect to the timing of relief, a court can reasonably endeavor to avoid a disruption of the election process which might result from requiring precipitate changes that could make unreasonable or embarrassing demands on a State in adjusting to the requirements of the court’s decree, 

Reynolds, supra; Order, Supra, at 14-15 (Ervin, J. dissenting). Further, there is precedent in 
North Carolina for conducting elections under an unconstitutional plan in order to avoid undue 
disruption of the electoral process,” Permitting the legislature to expend its encrgy, best 
  

In Shaw v. Hunt, 517 U.S. 899 (1996) (Shaw 11), the Supreme Court found that the Twelfth District, as drawn under the 1992 redistricting plan, was unconstitutional. On remand, the three-judge panel determined that the 1996 general elections would continue under the unconstitutional plan. 

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LA ah | 

A  o® 
judgment, and resources on planning for and developing a constitutional plan for the Twelfth 
District based on the Year 2000 population data would accord with Supreme Court precedent, 
accommodate the “equitable considerations” recognized in Reynolds, and allow the filings, 
campaigns and elections for 2000 to proceed on schedule. This Court should keep in mind that 
whatever the decision is in this case, simple arithmetic and Constitutional mandate dictate the 
redrawing of at least some new congressional district lines for the year 2002 elections based on 
the year 2000 census figures. 

VI. STANDING 
Defendants contest Plaintiff Ronald Linyille’s standing to participate in this case. As 

Plaintiffs stipulate, Linville is not a current resident of the First or Twelfth Congressional 
Districts, the two districts being challenged as racial gerrymanders.” Final Pre-T rial Order, 
filed November 29 1999, at §’s 20-23. Although he does not claim to be unhappy with his own 
district, Linville gives numerous objections to the Twelfth District and concludes that it is drawn 

  

[{In exercise of this Court's equitable power to withhold the grant of immediately effective relief for found constitutional violations in legislative districting plans in order to avoid undue disruption of ongoing state electoral processes, the 1996 primary elections already held for congressional offices are hereby validated and the 1996 general election for those offices may proceed as scheduled under state law (0 elect members of congress under the existing districting plan. 

Order, filed J uly 30, 1996 in Shaw v. Hunt, 92-202-CIV-5-BR at 2-3 (citing Reynolds, 377 U.S. at 585), 

* Although Linville was a resident of the Twelfth District under the 1992 Plan, under the 1997 Plan he is a resident and registered voter of the adjoining Fifth District. His precinct is 95.94 percent white. Id. 

 



  

  

along racial lines. Linville Dratt Deposition, at 17, 20, 23, 25-26, 34, 56, 57, 65, 75-77. 

Linville further complains about being separated from his father politically, being implicitly told 

he was “too white to belong in the de right next to [him],” and being “deliberately 

segregated immediately outside of a racially drawn district whose boundary was adjacent to his 

own precinct.” Plaintiffs’ Response to Defendants’ Motion for Summary Judgment, at 22, 

n.11. Plaintiffs produced no further evidence which suggests that Linville has been personally 

injured by a racial classification, despite assurances at the beginning of the trial that they would 

do so. Trial Transcript, at 5, lines 10-12. 

Federal courts have an independent obligation to examine their own jurisdiction; standing 

“is perhaps the most important of (the jurisdictional] doctrines.” United States v. Hays, 515 U.S. 

737, 742 (1995) (quoting FI¥/PBS, Inc. v. Dallas, 493 U.S. 215, 230-31 (1990). The party 
who seeks the exercise of jurisdiction has the burden of clearly alleging facts which demonstrate 

that he or she is a proper party ta invoke judicial resolution of the dispute. Hays, 515 U.S. at 

743. Even where a case has proceeded to final judgment after a trial, “those facts (if 

controverted) title ‘supported adequately by the evidence adduced at trial’ to avoid dismissal 

on standing grounds.” Id. (citations omitted). 

In the context of redistricting cases, a citizen has standing to challenge a racial 

classification in federal court if that citizen is “able to demonstrate that he or she, personally, has 

been injured by that kind of racial classification.” Id., at 744. Because of the difficulty in 

demonstrating this individualized harm, the Supreme Court created a presumption in favor of 

standing for residents of a challenged district. Hays, 515 U.S. at 744-45; accord Miller v. 

  

Johnson, 515 U.S. 900, 910-11 (1995). However, where a plaintiff is not a resident of the 

challenged district, the plaintiff is not afforded the benefit of this presumption. 

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[Where a plaintiff does not live in such a district, he or she does not suffer those 
special harms, and any inference that. the plaintiff has personally been subjected 
to a racial classification would not be justified absent specific evidence tending to 
support that inference. Unless such evidence is present, that plaintiff would be 
asserting only a generalized grievance against governmental conduct of which he 
or she does not approve. 

Hays, 515 U.S. at 745 (emphasis added). The Supreme Court repeatedly has refused to 

recognize a “generalized grievance against allegedly illegal governmental conduct as sufficient 

for standing to invoke the federal judicial power.” Id., at 743 (citations omitted). 

Consequently, plaintiffs who are not residents of a challenged district may sue only if they are 

able to make a specific evidentiary showing that they have been “personally classified by race.” 

Id., at 745; Shaw II, 517 U.S. at 904; Bush, 517 U.S. at 957-58. 

By seeking to include Linville as a participant in this lawsuit, Plaintiffs ask this Court to 

grant standing to a class of plaintiffs which the Supreme Court has explicitly refused to 

recognize. Only where a non-resident plaintifT is able to make a specific evidentiary showing of 

personal injury will that plaintiff have standing to sue in federal court. Linville’s litany of 

generalized grievances will not suffice to create standing. Because Linville is not a resident of 

the First or Twelfth Districts, and no specific evidence that he has personally been subjected to a 

racial classification is before this Court, I would dismiss Linville as a plaintiff for lack of 

standing. 

VII. CONCLUSION 

Lost amidst the smoking gun e-mails, the “uncontroverted” statistical information, and 

the indignant examinations of irregular district lines is Plaintiffs’ burden of proof in this case. 

The Plaintiffs must demonstrate by a preponderance of the evidence that a racial motivation 

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