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

    No. 98-450 
  
  

IN THE 

Supreme Court of the United States 
OCTOBER TERM 1998 
  

MARTIN CROMARTIE, et al., 

Appellants, 
V. 

JAMES B. HUNT, Jr, et al., 

Appellees, 

and 

ALFRED SMALLWOOD, et al., 

Appellee-Intervenors. 

  

On Appeal from the United States District Court 
Eastern District of North Carolina 
  

MOTION TO AFFIRM OR, IN THE ALTERNATIVE, 

TO DISMISS, OF APPELLEE-INTERVENORS 
  

ELAINE R. JONES 

Director-Counsel 

THEODORE M. SHAW 

NORMAN J. CHACHKIN 

JACQUELINE A. BERRIEN 

NAACP LEGAL DEFENSE 

& EDUCATIONAL FUND, INC. 

99 Hudson Street, Suite 1600 

New York, New York 10013 

(212) 219-1900 

  

HAND DELIVERED 

  

RECEIVED 

‘DEC - 2 1998 

OFFICE OF THE CLERK 

ADAM STEIN 

FERGUSON, STEIN, WALLAS, 

ADKINS GRESHAM & 

SUMTER, P.A. 

312 West Franklin Street 

Chapel Hill, NC 27516 

(919) 933-5300 

TopD A. Cox* 

NAACP LEGAL DEFENSE 

& EDUCATIONAL FUND, INC. 

1444 Eye Street, NW 
10th Floor 

Washington, DC 20005 

(202) 682-1300 

*Counsel of Record 

    SUPREME COURTAGamneysifor Appellee-Intervenors 
   



   



  

to
 

(U
S 

I 

COUNTER-STATEMENT OF 
QUESTIONS PRESENTED 

In as much as Appellants did not raise the issue before 
the three-judge district court below, is Appellants’ claim 
that the court should have placed on the State the 
burden of proving that race did not predominate in the 
creation of the 1998 remedial reapportionment plan, 
which the legislature enacted to cure the constitutional 
violation found by the district court, in an earlier plan, 
properly before this Court? 

Assuming that claim is properly before this Court, did 
the district court err by placing on the plaintiffs the 
burden of proving that race predominated in the 
creation of the remedial apportionment plan enacted by 
the legislature to cure the constitutional violation found 
by the three-judge district court in the 1997 
congressional reapportionment plan? 

Without regard to the burden of proof, did the district 
court err in concluding that the 1998 remedial plan -- 
enacted by the North Carolina General Assembly to 
cure the specific constitutional violation that the court 
found to exist in North Carolina’s 1997 congressional 
reapportionment plan -- was constitutional? 

 



  

i 

TABLE OF CONTENTS 

Page 

Counter Statement of Questions Presented ............ i 

Tableof Authorities ..c0. .. iS. days aaa iii 

Statement of Facts 203... 5. C0 J a ak 1 

Summary of Argument. ..... he Eas ET 5 

ARGUMENT - 

L Appellants’ Burden of Proof Argument 

does not warrant this Court’s Review . . ........ 7 

A. Appellants failed to raise their burden 
of proof before the three-judge district 

court and have, therefore, waived it ... .. 7 

B. Even if Appellants have preserved 

the issue, their claim is insubstantial . . . .. 8 

II. Appellants cannot demonstrate that the 

District Court’s Factual Finding that 
Race did not Predominate in the Creation 
of the 1998 Interim Remedial Plan 
wasClearly Erroneous... ......... 0 0. 12 

CONCIUSION TS 0, = 2, oho bes a oe dy 21 

   



iii 

TABLE OF AUTHORITIES 

CASES 

Page 

Board of Education v. Dowell, 
28U8. 2370990. we 10, 18 

Berkemer v. McCarry, 
WBBUS AAO... 8 

Breininger v. Sheet Metal Workers, 
P3US CIA “vn iE 8 

Brown v. Board of Education, 
347 U.S. 483 (1954) oo Th passim 

Burns v. Richardson, 
BAUS 73019668) Lal ow 17 

Bush v. Vera, 

3171.8 952 (A900) 8a. tL passim 

Columbus Board of Education v. Penick, 
3 US439690) 0y  han ily 10 

Davis v. United States, 
95 US 47200900) 3, 37 an ras 8 

Delta Airlines v, August, 
BOUL IBD) Lanllh iildin no io 8 

Freeman v. Pitts, 
SUS. 46771992)..." ahi 18  



  

v 

CASES (continued) 

Green v. County School Board of New Kent County, 

391 US. 4301968) .;....... co. 0 0 

Growe v. Emison, 

SOT US. 2501993) =... Jal nl de Bia 

Keyes v. School District No. 1, Denver, 

413. U.S. 1391979)... wi... re 

Lawyer v. Department of Justice, 

SATUS. 3671997) nL ar a 

Miller v. Johnson, 

313U.8.900(1995) ... AL ian 

Milliken v. Bradley, 

433US. 26701977). oid na NE 

Missouri v. Jenkins, 

SISUS. 70.1998) 3 La... 8 ui 

Nix v. Williams, 

TUS 311984)... ab. na 

Scott v. United States, 

920 F. Supp. 1248 (M.D. Fla. 1996), 
aff'd sub. nom., Lawyer v. Department 
of Justice, 521 U.S. 567 (1997) ........... 

Shaw v. Hunt, 

SIZUS 899(1996) 2 oh disso i 

   



V 

CASES (continued) 

Page 

Shaw v. Reno, 

S09L1.8.630(1993) wiv. vn LE passim 

Solorio v. United States, 

483 ).8. 435 £1987) “in. ih RE a. ea 8 

Swann v. Charlotte-Mecklenburg Board of Education, 
2 US 1971) aii. wm ipa 10, 11, 18 

Thornburg v. Gingles, 

4781.8. 30(1986) -. =... woah 11, 12 

United States v. Hays, 

SI5U.S 737Q1993) ...... 00. aims int, 14 

Vera v. Richards, 

861 F. Supp. 1304 (S.D. Tex. 1994), 
aff'd sub. nom., Bush v. Vera, 

S17US.952(1996) .. 7... on... oi 11 

Village of Arlington Heights v. Metropolitan Dev. Corp., 

9U.S. 2520977): ..... ii. iE 12,13, 15 

Voinovich v. Quilter, 

S07 11.8. 14641993)..." uo, 16, 17 

White v. Weiser, 

412 U.S. 783 (1973) 

Wise v. Lipscomb, 

437U.8. 535 (1978)... i. cv vis sinters sits 17  



  

vi 

STATUTES & RULES 

Page 

PL USIC $1973 Sidi vanish DMs UE 4 

1998 N.C:Sess. Laws. Ch. 2 7 oc. wooo. 0 1 

Fed. R.Civ.P. 32a) 0. Eh as ans 12 

S:CLR 182 vii Rae ia 1 

SCLR86 0, ou A Lis EE 1 

   



MOTION TO AFFIRM OR, IN THE ALTERNATIVE, 
TO DISMISS, OF APPELLEE-INTERVENORS 

Pursuant to Rule 18.6 of the Rules of the Supreme 
Court of the United States, Appellee-Intervenors Alfred 
Smallwood, David Moore, William M. Hodges, Robert L. 

Davis, Jr., Jan Valder, Barney Offerman, Virginia Newell, 

Charles Lambeth and George Simkins (“Smallwood Appellees” 

or “Appellee-Intervenors”)' move that this Court summarily 

affirm the order sought to be reviewed? or, in the alternative, 

dismiss the appeal on the ground that the questions raised by the 

appeal are so insubstantial as to require no further argument. 

The order on appeal 1s based on well-settled law established by 
this Court, and there is no conflict which requires this Court’s 
resolution. 

STATEMENT OF FACTS 

Thus 1s an appeal of the Order of the three-judge United 
States District Court for the Eastern District of North Carolina, 

entered June 22, 1998, in Cromartie v. Hunt, approving North 

Carolina’s 1998 interim congressional reapportionment plan, 
1998 N.C. Sess. Laws, Ch. 2 (“1998 Interim Remedial Plan”), 
as a remedy for the specific constitutional violations it found to 
exist in the State’s 1997 plan, as set forth in its April 3, 1998 
Order and April 14, 1998 decision. The April Order and 
decision are unreported and appear at the Appendix to the 
Jurisdictional Statement on Behalf of the State of North 
Carolina in Hunt v. Cromartie, No. 98-85 (“NC. J.S. App.”) at 

  

! Smallwood Appellees were granted intervention as party- 

defendants by the court below on June 20, 1998, two days prior to the entry 
of the Order from which this appeal is sought to be prosecuted. They are, 

accordingly, proper Appellees in this Court. S. Ct. R. 18.2. 

>The Order of the three-judge United States District Court for the 

Eastern District of North Carolina, dated June 22, 1998, is unreported and 

appears in the Appendix to Cromartie v. Hunt Appellants’ Jurisdictional 

Statement (“Appellants J.S. App.”) at la.  



  

2 

45a and la, respectively.’ The April 1998 Order is the subject 
of a separate appeal currently pending before this Court, Hunt 
v. Cromartie, No. 98-85. 

On July 3, 1996, following the ruling of this Court in 
Shaw v. Hunt, 517 U.S. 899 (1996), three residents of Tarboro, 

North Carolina, who are among the Appellants herein, filed the 
complaint in this action, Cromartie v. Hunt, challenging District 
1 of North Carolina’s 1992 congressional apportionment plan 
on the ground that it violated their equal protection rights 
because race predominated in the drawing of the district. On 
July 11, 1996, the members of the Smallwood Appellees group 
(three voters from the First District and six voters from the 

Twelfth District), sought to intervene in the Cromartie suit as 
defendants. 

A stay of the Cromartie litigation was entered pending 
completion of the remand proceedings in Shaw v. Hunt. On 
July 9, 1996 the same Tarboro residents who initiated the 
Cromartie suit joined with the original plaintiffs in Shaw in filing 
an Amended Complaint in Shaw, raising a similar challenge to, 
and asserting the same claims against the First Congressional 
District as they raised in Cromartie. The Shaw case was 
dismissed by the three-judge court on September 12, 1997, after 

that court approved the 1997 Remedial Plan that had been 

enacted by the legislature. The Cromartie three-judge court 

lifted its stay of proceedings on October 17, 1997. On the same 

  

A complete recitation of the relevant facts may be found in the 

Statement of the Case in the Brief of Appellant-Intervenors filed in Hunt v. 

Cromartie, No. 98-85. 

“The Smallwood Appellees participated fully as intervenors in Shaw 

v. Hunt in the trial court and in this Court, including in the remedial 

proceedings which resulted in the approval by the Shaw court of the 1997 
Remedial Plan. 

   



3 

day, two of the three original plaintiffs, along with four. 
residents of the redrawn District 12, filed an Amended 

Complaint in the Cromartie action, challenging the 1997 
Remedial Plan as a violation of the Equal Protection Clause and 
still seeking a declaration that District 1 in the 1992 Plan is 

unconstitutional. Within the time allowed for answering that 

amended complaint, the Smallwood Appellees filed a renewed 

motion to intervene as defendants. 

On March 31, 1998, the court below heard arguments 

on cross-motions for summary judgment and on the Cromartie 
plaintiffs’ request for preliminary injunction. On April 3, 1998, 
that three-judge United States District Court for the Eastern 
District of North Carolina issued an order granting summary 
judgment to plaintiffs, declaring North Carolina’s Twelfth 
Congressional District unconstitutional, permanently enjoining 
elections under the 1997 Remedial Plan, and ordering the State 
of North Carolina to submit a schedule for the General 

Assembly to adopt a new redistricting plan and to hold elections 
under that plan. NC. J.S. App. at 45a. The district court issued 
its judgment on April 6, 1998. NC. J.S. App. at 49a. 

The State moved for a stay of the injunction pending 
appeal. The district court denied this motion. The State then 
filed an application with this Court for a stay pending appeal, 

and the Smallwood Appellees filed an amicus curiae 

memorandum in this Court in support of the application. This 
Court denied the request for a stay on April 13, 1998. On April 

14, 1998, the district court issued an opinion explaining its April 
3, 1998 order.’ 

  

On May 26, 1998, with their two prior unopposed intervention 

motions still pending, the Smallwood Appellees filed a third motion to 

intervene as defendants in the case. On June 20, 1998, after the deadline for 

filing a timely notice of appeal of the district court’s April 3, 1998 order and 

April 6, 1998 judgment, the district court ruled that the Smallwood  



  

4 

The district court directed the General Assembly to 
redraw the State congressional reapportionment plan within 
thirty days to remedy the violations found by the court in the 

1997 Remedial Plan. On May 21, 1998, the General Assembly 

enacted the 1998 Interim Remedial Plan, and subsequently 
submitted it to the district court for approval together with 
documentary evidence describing the legislature’s goals and 
method of producing the plan. Plaintiff-appellants filed an 
opposition and objections to the 1998 Interim Remedial Plan 
with the court and the State filed a response. Plaintiff- 
appellants did not request a court hearing on the plan. Pursuant 
to Section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 
1973c, the Department of Justice precleared the 1998 Interim 
Plan on June 8, 1998. 

On June 22, 1998, the district court entered an order 

tentatively approving the 1998 Interim Remedial Plan and 

authorizing the State to proceed with the rescheduled 1998 

elections under that plan. Appellants J.S. App. at 1a. The 
district court noted its duty under this Court’s precedents to 
afford the State the first opportunity to cure the constitutional 
violation found by the court and acknowledged the limits this 
Court has placed on district courts in evaluating remedial 
reapportionment plans. Appellants J.S. App. at 3a. 
Accordingly, the district court determined that “[b]ecause [it] 
held only that District 12 in the 1997 plan unconstitutionally 
used race as the predominant factor in drawing District 12, the 

  

Appellees were entitled to intervene as of right in this action. As the delay 

in granting the motions to intervene prevented them from fully participating 

as parties in the district court and prevented them from being able to exercise 

their right to appeal, the Smallwood Appellees filed in this Court on October 

2, 1998 a motion to intervene as Appellants in Hunt v. Cromartie, No. 98- 

85. This Court granted the motion on October 19, 1998. Appellants filed 

briefs on the merits in No. 98-85 on November 10, 1998. 

   



5 

[c]ourt is now, limited to deciding whether race was the 
predominant factor in the redrawing of District 12 in the 1998 
plan.” Id. The district court found that, in enacting the 1998 
Interim Remedial Plan, the General Assembly sought to 
“specifically address [the district court’s] concerns about 
District 12,” id., while “hop[ing] to change as few districts as 
possible, to maintain the partisan balance of the State’s 
congressional delegation, to keep incumbents in separate 
districts and preserve the cores of those districts, and to reduce 
the division of counties and cities, especially where the [district 
court] found the divisions were based on racial lines.” Id. at 3a- 
4a. 

The district court concluded that “the General Assembly 
successfully addressed the concerns noted by the [c]ourt in its 
Memorandum Opinion for the purposes of the instant Order,” 
id. at 4a, and, “[t]hus, the 1998 plan includes a Twelfth 
Congressional District with fewer counties, fewer divided 
counties, a more ‘regular’ geographic shape, fewer divided 
towns, and higher dispersion and perimeter compactness 
measures.” Jd. The district court stated that “from the record 
now before [it],” id. at 3a, “race cannot be held to have been the 
predominant factor in redrawing District 12.” Id. Referring to 
its earlier April 3, 1998 Order and April 14, 1998 decision, the 
district court noted that it was not ruling on the constitutionality 
of the revised District 1, and it directed the parties to proceed 
with discovery and trial accordingly. /d. at Sa. The district 
court specifically “reserve[d] jurisdiction” to reconsider its 
ruling regarding the constitutionality of District 12 of the 1998 
Interim Remedial Plan “should new evidence emerge.” Id. 

SUMMARY OF ARGUMENT 

In approving the 1998 North Carolina Congressional: 
Redistricting Plan (“1998 Interim Remedial Plan”) as a remedy 
for the constitutional violation it found in the 1997 plan, the 
court below acted in accord with this Court's long-standing,  



  

6 

well-settled precedents. Its decision was not clearly erroneous 
and should be affirmed, or in the alternative, this appeal should 
be dismissed. 

First, Appellants argue that the district court erred in 
placing on them the burden of proving that race predominated 
in the creation of 1998 Interim Remedial Plan. However, 

despite raising a number of objections to the plan before the 

court below, Appellants failed to raise before the district court 
the issue of which party should bear the burden of proof at the 
remedial stage and, indeed, assumed the burden of proving that 
race predominated in the creation of the plan. As Appellants 
failed to raise the issue of what party should bear the burden of 
proof and neglected to object to the district court’s assessment 
of burdens, the issue is not properly before this Court. 

Nevertheless, even if Appellants have preserved this 
claim, it is insubstantial. It is well-settled that, in cases such as 

this, where plaintiffs challenge the constitutionality of a 
districting plan under the Fourteenth Amendment jurisprudence 
established by this Court in Shaw v. Reno, 509 U.S. 630 (1993) 
and Miller v. Johnson, 515 U.S. 900 (1995), the plaintiff bears 
the burden of proving that race predominated in the redistricting 
process. Moreover, consistent with this Court's precedents, this 
burden does not shift during the remedial phase of a challenge 

brought under the Shaw regime. Appellants offer no principled 
reasoning for abandoning this Court’s holdings regarding 
burdens of proof in Shaw cases; instead they argue that shifting 
the burden would be consistent with the manner in which 

burdens are allocated in de jure school segregation cases. 
However, this analogy is tenuous, as school desegregation cases 
arise in a unique context that contrasts with the circumstances 
that attend redistricting cases and challenges brought under 
Shaw and its progeny. Since Appellants’ theories conflict with 

this Court’s regime for allocating burdens of proof in 
Fourteenth Amendment challenges such as this case, and 

   



7 

because Appellants demonstrate no meaningful rationale for 
altering that structure, Appellants’ claim is insubstantial. 

Second, Appellants cannot show that the court below 
erred in holding that race was not the predominant factor in the 
creation of the new Twelfth Congressional District in the 1998 
Interim Remedial Plan. Appellants argue that the 1998 Interim 
Remedial Plan must be declared unconstitutional because it was 
the “fruit of the poisonous tree” of the 1992 and 1997 North 
Carolina reapportionment plans. Appellants contend that, in 
remedying the found Shaw violation, the State was required to 
abandon every feature of the challenged plan and construct a 
new plan without regard to its traditional districting concerns, 
including maintaining partisan balances and protecting 
incumbents. Appellants’ theory is fundamentally at odds with 
this Court’s precedents, finding no support in Shaw or its 
progeny or in the case law defining how courts evaluate 
remedial redistricting plans. According to these precedents, to 
the extent that the 1998 Interim Remedial Plan did not violate 
any federal or state constitutional or statutory requirements, the 
district court was bound to approve the plan. Appellants cannot 
show that this decision was clearly erroneous. 

ARGUMENT 

1 Appellants’ Burden of Proof Argument does not 
warrant this Court’s Review 

A. Appellants failed to raise their burden of 

proof claim before the three-judge district 

court and have, therefore, waived it 

Appellants claim that the State “should bear the burden 

to establish that race was not the predominant motive; and the 
burden should not have been placed on the plaintiffs to establish 
that race still predominated in drawing District 12.” Appellants’ 
Jurisdictional Statement (“Appellants J.S.”) at 16 (emphasis in 
the original). Appellants’ jurisdictional statement details all of  



  

8 

their objections to the 1998 Interim Remedial Plan that were 
presented to the court below. Appellants J.S. at 5, 11-15. 
However, Appellants never raised before the district court the 

issue of which party should bear the burden of proof at the 
remedial stage. In fact, Appellants assumed the burden of 
proving that race predominated in the creation of the plan, 

making arguments, similar to the ones raised here, that the State 

failed to remove from the plan the “vestiges” of the prior 
discrimination and that the plan is the “fruit of the poisonous 
tree” of the 1992 Plan and the 1997 Remedial Plan. 

Significantly, Appellants did not bring to the attention of the 
court below, for example by filing a motion pursuant to Fed. R. 
Civ. P. 59 to alter or amend the judgment, their contention that 

the burden of proof had been misallocated. Since Appellants 
failed to raise the issue of what party should bear the burden of 
proof and neglected to object to the district court’s assessment 
of burdens, the issue is not properly before this Court. See, 
e.g., Davis v. United States, 495 U.S. 472, 489 (1990); 

Breininger v. Sheet Metal Workers, 493 U.S. 67, 94 n.18 

(1989); Solorio v. United States, 483 U.S. 435, 451 n.18 
(1987); Berkemer v. McCarty, 468 U.S. 420, 443 (1984); Delta 

Airlines v. August, 450 U.S. 346, 362 (1981). 

B. Even if Appellants have preserved the issue, 

their claim is insubstantial 

Appellants claim that the district court erred in placing 

on them the burden of proving that race predominated in the 

creation of the 1998 Interim Remedial Plan.® However, it is 

well-settled that where plaintiffs challenge the constitutionality 

of a districting plan under the Fourteenth Amendment 
jurisprudence established by this Court in Shaw v. Reno and 

  

“In making this argument, Appellants attempt to draw analogies to 

criminal and school desegregation cases. As discussed below, these 

comparisons are inappropriate. 

   



9 

Miller v. Johnson, “[t]he plaintiff bears the burden of proving 
the race-based motive. . . .” Shaw v. Hunt, 517 U.S. 899, 905 
(citation omitted). See also Miller v. Johnson, 515 U.S. 900, 
916 (1995). 

This burden does not shift during the remedial phase of 
such a challenge. In Scott v. United States, 920 F. Supp. 1248 
(M.D. Fla. 1996), aff'd sub nom. Lawyer v. Department of 
Justice, 521 U.S. 567 (1997), a three-judge District Court for 
the Middle District of Florida considered a redistricting plan 
offered as a settlement of a lawsuit challenging, under Shaw, the 
constitutionality of Florida’s Senate District 21. The district 
court received and considered objections to the proposed 
remedial plan by one of the named plaintiffs, id. at 1255, and, 
“in accord with Miller,” evaluated the facts involving whether 
race predominated in the creation of the plan: 

“The plaintiff's burden is to show . . . that race was the 
predominant factor motivating the legislature’s decision 
to place a significant number of voters within or without 
a particular district. To make this showing, a plaintiff 
must prove that the legislature subordinated traditional 
race-neutral districting principles . . . to racial 
considerations.’ 

Scott, 920 F. Supp. at 1253 (quoting Miller, 515 U.S. at 916). 
In its affirmance of the decision, this Court did not disturb the 
trial court's allocation of the burdens. Lawyer v. Department of 

Justice, 521 U.S. 567 (1997). 

Appellants offer no principled rationale for abandoning 
this Court’s holdings regarding burdens of proof in the remedial 

phase of these cases. Appellants offer only a single ground for 
shifting the burden of persuasion: that such a shift “is a logical 
corollary of the principle that ‘vestiges’ of the unconstitutional 
plan should be eliminated,” Appellants J.S. at 16, a principle that 
Appellants urge this Court to adopt on this appeal (and to which  



  

10 

we respond infra).” This overlooks the facts that de jure school 
segregation was nearly always a pervasive, systemwide policy® 
with tangible, long-lasting effects’ upon every aspect of the 
operations of the educational enterprise,'® and that this Court 

  

’ Appellants also suggest that shifting the burden of persuasion is 

supported by decisions of this Court in criminal cases, in which “the burden 

of proof seems to have been placed on the prosecutor to demonstrate that the 

‘taint’ arising out of an illegal arrest in violation of the Fourth Amendment 

had been eliminated prior to obtaining a confession” (Appellants J.S. at 16- 

17 n.18 (emphasis added)). Appellants’ hesitation in interpreting these 

decisions as embodying a special burden-shifting rule for “fruit of the 

poisonous tree” situations is well-advised, because they in fact apply only 

the ordinary principle that the party seeking to introduce evidence is required 

to establish its admissibility. Indeed, this Court noted in Nix v. Williams, 

467 U.S. 431, 444 n.5 (1984), that although the prosecution must prove 

guilt beyond a reasonable doubt, “admissibility [is determined] by a 

preponderance of the evidence.” 

8See Columbus Board of Education v. Penick, 443 U.S. 449, 457- 

58 (1979) (“Proof of purposeful and effective maintenance of a body of 

separate black schools in a substantial part of the system itself is prima facie 

proof of a dual school system and supports a finding to this effect absent 

sufficient contrary proof by the [School] Board”); Keyes v. School District 

No. 1, Denver, 413 U.S. 189, 201, 213 (1979) (same); id. at 208, 210, 213 

(finding of intentionally segregative school board actions in meaningful 

portion of school system creates presumption that other segregation in 

system is not adventitous and shifts burden to school authorities to prove 

that other segregated schools are not the result of their segregative actions). 

*See, e.g., Swann v. Charlotte-Mecklenburg Board of Education, 

402 U.S. 1, 21 (1971) (school construction practices by segregated systems 

“may well promote segregated residential patterns which, when combined 

with ‘neighborhood zoning,” further lock the school system into the mold of 

separation of the races”). 

19See Board of Education v. Dowell, 498 U.S. 237, 250 (1991) 
(“In considering whether the vestiges of de jure segregation had been 

eliminated as far as practicable, the District Court should look not only at 

   



11 

placed an affirmative duty to extirpate all vestiges of the de jure 
policy upon school districts only after a long period of 
recalcitrant refusals to comply with the constitutional command 
of Brown v. Board of Education, 347 U.S. 483 (1954)." 

Neither circumstance is present in this case. First, 
constitutional or statutory violations are often limited to only 
certain districts in an overall apportionment plan.’* Thus, the 
entire political process has not been distorted in the manner or 
to the degree that public educational systems were in the de jure 
school desegregation context. Second, the “analytically 
distinct” cause of action upon which Appellants’ lawsuit is 
based was announced by this Court a little more than five years 
ago, in Shaw v. Reno, 509 U.S. 630 (1993). 

Because Appellants’ theories conflict with this Court’s 
carefully constructed regime for allocating burdens of proof in 
Fourteenth Amendment challenges that allege racial 
predominance in the redistricting process, and because 
Appellants advance no meaningful justification for modifying 
that structure, Appellants’ claim is insubstantial. 

  

student assignments, but ‘to every facet of school operations”), citing Green 
v. County School Board of New Kent County, 391 U.S. 430 (1968). 

See Swann, 402 U.S. at 13-14 (referring to dilatory tactics and 
resistance to Brown), Green, 391 U.S. at 438 (holding 14 years after Brown 
that “[t]his deliberate perpetuation of the unconstitutional dual system [after 
Brown] can only have compounded the harm of such a system. Such delays 
are no longer tolerable”); Id. at 439 (school boards have burden of 
establishing that their plans will work “now”). 

'’E.g., Vera v. Richards, 861 F. Supp. 1304, 1345 (S.D. Tex. 
1994), aff’d sub nom. Bush v. Vera, 517 U.S. 952 (1996) (sustaining 
plaintiffs’ Shaw v. Reno challenge to only 3 of 24 questioned districts); 
Thornburg v. Gingles, 478 U.S. 30, 80 (1984) (affirming minority vote 
dilution findings of trial court with respect to some, but not all, districts in 
apportionment plan).  



  

12 

IL. Appellants cannot demonstrate that the District 

Court’s Factual Finding that Race did not 

Predominate in the Creation of the 1998 Interim 

Remedial Plan was Clearly Erroneous 

Appellants obviously disagree with the factual finding of 
the court below, based upon the evidence before it"? that racial 
considerations did not predominate in the North Carolina 
General Assembly’s construction of the 1998 Interim Remedial 

Plan. Because they are unable to show that the lower court’s 

finding on this record is “clearly erroneous,” see Fed. R. Civ. P. 

52(a); Thornburg v. Gingles, 478 U.S. at 78, Appellants strain 
in their Jurisdictional Statement to identify some presumed legal 
error in the application of this Court’s precedents. This effort 
is unavailing, and the Court should either affirm the judgment 
below or dismiss the appeal for want of any substantial 
question. 

First, Appellants assert that this case is similar to a 
school desegregation case and that the district court erred by 

not “assuring that the ‘vestiges’ of the unconstitutional 1992 

and 1997 racial gerrymanders were eliminated.” Appellants J.S. 

at 7. Second, drawing an analogy between the 1998 

redistricting process and the use against criminal defendants of 
evidence which was illegally obtained, Appellants argue that the 

court below should have ruled that the 1998 Interim Remedial 

Plan is the “fruit of the poisonous tree” of the 1992 and 1997 
redistricting plans held to be unconstitutional. Appellants J.S. 
at 9. Finally, citing Village of Arlington Heights v. 
Metropolitan Dev. Corp., 429 U.S. 252, 265-66 (1977), 
Appellants contend that the trial court erred by adhering to the 
standard announced by this Court in Shaw, and “requiring that 

  

BThe district court explicitly “reserved jurisdiction with regard to 

the constitutionality of District 1 under this plan and as to District 12 should 

new evidence emerge.” Appellants J.S. App. at 5a. 

   



13 

plaintiffs in these ‘analytically distinct’ actions must demonstrate 
that race was the predominant motive for creating” a challenged 
district. Appellants J.S. at 10. Appellants instead argue in favor 
of a rule that would condemn any consideration of race in 
shaping a remedial plan. 7d." 

Appellants’ arguments in support of reversal rely 
primarily upon two grounds: 1) as viewed by the Appellants, 
the Twelfth District in the 1998 Interim Remedial Plan is not 
“geographically compact”; and 2) the plan protected all of the 
State’s congressional incumbents and should be deemed 
constitutionally invalid because it extended such protection to 
the African American incumbent of District 12, as well as to 
white incumbents. Neither of these factors constitutes proof of 
unconstitutionality under this Court’s existing precedents and 
they are, therefore, insufficient to meet the rigorous standard of 
proof required by this Court. 

In cases raising claims such as the ones raised by 
Appellants here, this Court has already defined an analytically 
distinct regime for determining whether a redistricting plan 
violates the Constitution. As pointed out above, Appellants’ 
burden in this case was to show that “race for its own sake, and 
not other districting principles, was the legislature’s dominant 
and controlling rationale in drawing its district lines” in the 1998 
Interim Remedial Plan, Bush v. Vera, 517 U.S. at 951, quoting 
Miller v. Johnson, 515 U.S. at 913, and “that other, legitimate 
districting principles were ‘subordinated’ to race.” Bush, 517 
U.S. at 958. See generally id. at 259-68. It is insufficient for 
Appellants to show, as they attempted to do here, merely that 

  

' Appellants state that only if courts apply what they describe as the 
Arlington Heights test “can a district court be assured that the ‘taint’ of an 
earlier racial gerrymander has been eliminated,” Appellants J.S. at 11, 
suggesting that this argument is a subpart of their “fruit of the poisonous 
tree” contention.  



  

14 

inclusion of African-American voters was one factor influencing 
the contours of a district in the plan adopted by the legislature 
— or even that the entire districting process was carried out 
“with consciousness of race,” Bush, 517 U.S. at 1051. As 

Justice O’Connor has observed: 

States may intentionally create majority-minority 

districts and may otherwise take race into consideration, 

without coming under strict scrutiny. Only if traditional 
districting criteria are neglected, and that neglect is 
predominantly due to the misuse of race, does strict 
scrutiny apply. 

Bush, 517 U.S. at 993 (O’Connor, J., concurring) (emphasis in 

original); see also United States v. Hays, 515 U.S. 737, 745 
(1995) (“We recognized in Shaw . . . that the ‘legislature always 
1s aware of race when it draws district lines, just as it is aware 
of age, economic status, religious and political persuasion, and 
a variety of other demographic factors. That sort of race 

consciousness does not lead inevitably to impermissible race 
discrimination”) (citation omitted) (emphasis in original). See 
also Smallwood Appellees’ Brief of Appellant-Intervenors in 
Hunt v. Cromartie, No. 98-85 at 32-37" 

  

1s Moreover, legislative consideration of a non-racial factor that is 

correlated with race is insufficient to demonstrate predominance unless the 

court finds that it was a proxy for race. Bush v. Vera, 517 U.S. at 967-69. 

This principle demonstrates the tenuousness of Appellants’ reliance upon the 

General Assembly’s interest in protecting incumbents as an indication of the 

1998 Interim Remedial Plan’s constitutional infirmity based solely on the 

fact that North Carolina’s Twelfth District Representative is African 
American. It is undisputed that the State sought to protect all incumbent 

members of its congressional delegation, white and African American; since 

ten of twelve members of that delegation were white, incumbency protection 

— which Appellants acknowledge is an appropriate legislative purpose “in 

the first instance,” Appellants J.S. at 14 — hardly suggests that racial motives 

were predominant. By arguing that it was per se unconstitutional for the 

   



15 

This Court’s recognition that legislatures are always: 
aware of race in drawing district lines, and its consequent 
holding that legislatures may permissibly take race into 
consideration in that process so long as racial considerations do 
not predominate, carves out a limited role for federal courts in 
the redistricting process of States that is effective without being 
overly intrusive. See Miller v. Johnson, 515 U.S. at 915-17. 
The Court has refused to alter that role when a legislative plan 
adopted to remedy an earlier constitutionally infirm 
apportionment is at issue, see Lawyer v. Department of Justice, 
discussed supra at p. 9. Appellants have presented no 
convincing reason why this Court should adopt the standard 
they describe as the “Arlington Heights rule,” which would bar 
any consideration of race by a legislature enacting a remedial 
plan. That standard would make vastly more intrusive the 
scope of federal courts’ inquiries into districting processes, but" 
as we show below, neither of Appellants’ other arguments (the 
“fruit of the poisonous tree” and duty to eradicate all “vestiges” 
arguments) states an adequate justification for replacing the 
controlling decision of this Court with the Appellants’ untested 
theories. 

Appellants’ “fruit of the poisonous tree” argument is not 
persuasive, since States are not required to discard completely: 

  

State to protect the incumbency of the Twelfth District’s African-American 
Congressman to the same extent as it protected other incumbents, id., 
Appellants urge the adoption of a double standard that is intolerable under 
the decisions of this Court. See, e.g., Miller v. Johnson, 515 U.S. at 928 
(O’Connor, J., concurring); Shaw v. Hunt, 517 U.S. at 996 (Kennedy, J., 
concurring). Congressman Melvin Watt was recently re-elected as the 
representative of the redrawn Twelfth District which is now 65% white in 
population, but Appellants nevertheless persist in arguing that the district 
(and a fortiori, Congressman Watt’s electoral success) is the product of a 
racial gerrymander. There is no legal or factual basis for suggesting that 
such a district is constitutionally invalid.  



  

16 

the original challenged plan before developing a new remedial 
redistricting plan.’® This argument finds no support in Shaw, its 
progeny, or in cases which define how remedies must be 
fashioned in voting rights cases. This Court has consistently 
accorded great deference to the States’ policy choices in the 

redistricting process and has repeatedly held that the 

redistricting policy choices of the State should be set aside by 

a federal court only to the extent necessary to remedy a 

violation of federal law. See, e.g., White v. Weiser, 412 U.S. 

783, 795 (1973) (in devising a remedy for a federal 

constitutional violation, a court “should follow the policies and 
preferences of the State, expressed in statutory and 
constitutional provisions or in reapportionment plans proposed 
by the state legislature, whenever adherence to state policy does 
not detract from the requirements of the Federal 
Constitutions”); see also Voinovich v. Quilter, 507 U.S. 146, 

156 (1993) (“[F]ederal courts are bound to respect the States’ 
apportionment choices unless those choices contravene federal 
requirements”). It is not enough for litigants or the federal 
courts to simply prefer a different redistricting outcome; rather, 
the State's choices may be subverted only to the extent 
necessary to remedy the violation. As the district court 
reasoned, where, as in this case, the State has enacted a new 

plan that fully remedies the Shaw violation and complies with all 
applicable federal and state constitutional and statutory 

  

16That there is some resemblance between district shapes in a 

challenged plan and those in a remedial plan is not a sufficient basis for 

invalidating the latter unless the court finds that racial considerations 

again predominated in its construction, for otherwise a legislature would 
be required to abandon its earlier plan and its incumbent officials 
completely. Neither the inclusion of areas smaller than whole counties in the 

1998 Interim Remedial Plan, nor the re-election of its prior incumbent under 

that Plan, see supra note 15, may properly be characterized as the “fruit” of 

any “poisonous tree” that compels its proscription. 

   



17 

provisions, there is no basis for federal judicial interference with 
its implementation. Wise v. Lipscomb, 437 U.S. 535, 540. 
(1978), see also Shaw v. Hunt, 517 U.S. at 917 n.9 (“states 
retain broad discretion in drawing districts to comply with the 
mandate of § 27) (citing Voinovich v. Quilter, 507 U.S. 146 
(1993) and Growe v. Emison, 507 U.S. 25 (1993)); Burns v. 
Richardson, 384 U.S. 73, 85 (1966) (“A State’s freedom of 
choice to devise substitutes for an apportionment plan found 
unconstitutional, either as a whole or in part, should not be 
restricted beyond the clear commands of the Equal Protection 
Clause”). See also Smallwood Appellees’ Brief of Appellant- 
Intervenors in Hunt v. Cromartie, No. 98-85 at 28-31. 

Appellants’ analogy to school desegregation 
junsprudence fares no better. First, as noted earlier,'” unlike the 
system-wide findings of de jure discrimination in the typical 
school desegregation case, findings of statutory or 
constitutional violations in apportionment plans often involve 
only a limited number of districts rather than the entire plan. 
There is thus no reason to search for “vestiges” of racial 
predominance outside the specific electoral districts held to be 
invalid. Second, Appellants themselves fail to indicate what 
such “vestiges” might be, other than the same features they have 
characterized as the “fruit of the poisonous tree” in their effort 
to change the identity of the Twelfth District Representative, 
see supra note 15. Finally, the school desegregation cases in 
fact support the result below. 

In the school desegregation context, this Court has 
“articulated a three-part framework . . . to guide district courts 
in the exercise of their remedial authority.” Missouri v. Jenkins, 
515 U.S. 70, 88 (1995). As this Court stated in Milliken v. 
Bradley, 433 U.S. 267 (1977), 

  

See supra page 11 n.12 and accompanying text.  



  

18 

In the first place, like other equitable remedies, the 
nature of the desegregation remedy is to be determined 
by the nature and scope of the constitutional violation. 

The remedy must therefore be related to ‘the 

condition alleged to offend the Constitution. . . ’ 
Second, the decree must indeed be remedial in nature, 

that is, it must be designed as nearly as possible ‘to 

restore the victims of discriminatory conduct to the 
position they would have occupied in the absence of 
such conduct.” Third, the federal courts in devising a 
remedy must take into account the interests of state and 
local authorities in managing their own affairs, 
consistent with the Constitution. 

Id. at 280-81 (footnotes and citations omitted). In Freeman v. 

Pitts, 503 U.S. 467 (1992), this Court concluded that this 

inquiry should focus upon “‘whether the [constitutional 
violator] ha[s] complied in good faith with the desegregation 
decree since it was entered, and whether the vestiges of past 
discrimination ha[ve] been eliminated fo the extent 
practicable” Id. at 492 (quoting Board of Education v. 
Dowell, 498 U.S. at 249-50 (emphasis added). Indeed, “[t]he 
task is to correct, by a balancing of the individual and 
collective interests, the condition that offends the Constitution.” 

Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 
at 15-16 (emphasis added). 

Far from calling into question the decision below, this 
Court’s standard for analyzing school desegregation plans 
establishes a role for federal courts that is entirely consistent 
with a federal court’s duty in evaluating remedial redistricting 
plans and comports with the process the district court in this 
case followed in reviewing the 1998 Interim Remedial Plan. 

Appellants complain that “nothing in the opinion of the court 
below reflects any awareness on its part of its responsibility to 
assure that ‘vestiges’ of the racially-gerrymandered 1992 plan 

   



19 

were not still present in the 1998 plan,” Appellants J.S. at 11 
(footnote omitted and emphasis added). However, predicated 
upon this Court’s precedents discussed above, the district court 
did in fact engage in a careful balancing of the State’s 
responsibilities to remedy the constitutional violation found, 
while fulfilling its other legitimate political redistricting 
objectives.” The court found that the State’s primary 
redistricting goal was to create a plan to “address [the court’s] 
concerns about District 12.” Appellants J.S. App. at 3a. In 

  

"*To illustrate the over-breadth of Appellants’ position, we note that 
they argue, even though no court has ever held that the First Congressional 
District in either the 1992 Plan or the 1997 Remedial Plan unconstitutional, 
that the district court was nevertheless obligated to “assure that the First 
District as it exists in the [1998 Interim Remedial Plan] has none of the 
"vestiges of the earlier First District and is not the ‘fruit’ of that poisonous 
tree.” Appellants J.S. at 11 n8. However, once it found a discrete 
constitutional violation, the district court was bound by this Court’s 
precedents to tailor the nature and scope of the remedy to match the nature 
and scope of the violation. See, e.g., Milliken, 433 U.S. at 281-82 (the 
“principle that the nature and scope of the remedy are to be determined by 
the violation means simply that federal-court decrees must directly address 
and relate to the constitutional violation itself. Because of this inherent 
limitation upon federal judicial authority, federal court decrees exceed 
appropriate limits if they are aimed at eliminating a condition that does not 
violate the Constitution or does not flow from such a violation. . . .”); Lewis 
v. Casey, 518 U.S. 343, 357 (1995) (“The remedy must of course be limited 
to the inadequacy that produced the injury-in-fact that the plaintiff has 

established”) (citation omitted). Since the court only found that the Twelfth 

District violated the Constitution, and the First District has never been held 

to violate the Constitution, the district court properly limited its evaluation 

of the 1998 Remedial Plan: “Because this [c]ourt held only that District 12 

in the 1997 plan unconstitutionally used race as the predominant factor in 

drawing District 12, the [c]ourt is now limited to deciding whether race was 

the predominant factor in the redrawing of District 12 in the 1998 plan.” 

Appellants J.S. App. at 3a. Appellants are not entitled to a remedy for a 

non-existent constitutional violation and, to date, no court has found a Shaw 

violation in the First Congressional District.  



  

20 

addition, it found that the State sought to “maintain the partisan 

balance of the State’s congressional delegation, to keep 
incumbents in separate districts and preserve the cores of those 
districts, and to reduce the division of counties and cities. . . .” 

Id. at 3a, 4a. The court concluded that the State struck a 

balance that resulted in a plan that “successfully addressed the 

concerns of [the court]” /d. Therefore, despite Appellants’ 
claims to the contrary, the district court was aware of its 

responsibilities in reviewing the 1998 Interim Remedial Plan and 
acted in accord with this Court’s long-standing precedents. 
Offering no principled rationale for this Court to abandon its 

well-settled standards governing the delicate role of federal 
courts in the redistricting process, Appellants’ appeal is 
insubstantial. 

The district court order on appeal was firmly grounded 
in this Court’s precedents. If plenary review is routinely 

granted by this Court based upon the claims Appellants raise 
here, this Court will be forced to evaluate and review the details 

of congressional or state legislative districts whenever a plaintiff 
alleges that they have an odd shape or that race was even a 
trivial consideration in their creation. The district court 
properly disposed of the issues before it and Appellants have 
presented nothing to demonstrate that the court’s action was 

contrary to law or that its factual findings were clearly 

erroneous. 

   



CONCLUSION 

For the foregoing reasons, the motion to affirm or, in the 
alternative, dismiss should be granted. 

Respectfully submitted, 

ELAINE R. JONES 

Director-Counsel 

THEODORE M. SHAW 

NORMAN J. CHACHKIN 

JACQUELINE A. BERRIEN 

NAACP LEGAL DEFENSE 

& EDUCATIONAL FUND, INC. 

99 Hudson Street, Suite 1600 

New York, NY 10013 

(212) 219-1900 

ADAM STEIN 

FERGUSON, STEIN, WALLAS, 

ADKINS, GRESHAM & 

SUMTER, P.A. 

312 West Franklin Street 

Chapel Hill, NC 27516 

(919) 933-5300 

Topp A. Cox* 

NAACP LEGAL DEFENSE 

& EDUCATIONAL FUND, INC. 

1444 Eye Street, NW 

10th Floor 

Washington, DC 20005 

(202) 682-1300 

*Counsel of Record 

Attorneys for Appellee-Intervenors 

 



  

No. 98-450 

  

IN THE SUPREME COURT OF THE UNITED STATES 

October Term, 1998 

  

MARTIN CROMARTIE, et al, 

Appellants, 

V. 

JAMES B. HUNT, JR, et al., 

Appellees, 

and 

ALFRED SMALLWOQD, et al., 

Appellee-Intervenors. 

  

CERTIFICATE OF SERVICE 

I, Todd A. Cox, a member of the Bar of this Court, hereby certify that on this 2nd day of 

December, 1998, served by first-class mail, postage prepaid, a true and correct copy of the 

Motion to Affirm or, in the Alternative, to Dismiss of Appeliee-Intervenors to Robinson O. 

Everett, Suite 300 First Union National Bank Building, Post Office Box 586, Durham, North 

Carolina 27702 and Edwin M. Speas, Jr., Chief Deputy Attorney General and Tiare B. Smiley, 

Special Deputy Attorney General, North Carolina Department of Justice, Post Office Box 629, 

Raleigh, North Carolina 27602-0629, counsel for all of the appellants and appellees herein. I 

further certify that all parties required to be served have been served.    

   

  

Todd A. Cox 

NAACP Legal Defense 

& Educational Fund, Inc. 

   

  

  

  

RECEIVED 

HAND DELIVERED 

S
R
 
i
]
 

- 21998 1444 1 Street, N.W., 10th Floor 

DEC 2 Washington, D.C. 20005 

OFFICE OF THE CLERK (202) 682-1300 

SUPREME COURT, u.S.       Counsel for Appellee-Intervenors