State Appellants' Reply Brief

    Nos. 99-1864 and 99-1865 
  

IN THE 

Supreme Court of the Bnited States 
  

JAMES B. HUNT, JR. et al., 

Appellants, 

and 

ALFRED SMALLWOOD, et al., 

    

Intervenor-appellants, 

Vv. 

MARTIN CROMARTIE, et al., 

Appellees. 
  

On Appeal from the United States District Court 

Eastern District of North Carolina 
  

STATE APPELLANTS’ REPLY BRIEF 
  

MICHAEL F. EASLEY 

North Carolina Attorney General 
Tiare B. Smiley,* Special Deputy Attorney General w 

Norma S. Harrell, Special Deputy Attorney General 

North Carolina Department of Justice 

Post Office Box 629 
Raleigh, North Carolina 27602-0629 

(919) 716-6900 

Walter E. Dellinger 

Brian D. Boyle 

Sr1 Srinivasan 

Jonathan D. Hacker 

O’Melveny & Myers LLP 

555 13th Street, N.-W. 

Washington, D.C. 20004 

(202) 383-5300 

November 8, 2000 *Counsel of Record 
   



  
    

 
 

    

 
 

 
  



  

  
  

TABLE OF CONTENTS 

TABLE OF AUTHORITIES EP 

Secencecssssssenesatsnenansrenene 

Ed 

I. THE SHAPE AND COMPACTNESS 

OF DISTRICT 12 ONLY RAISES THE 
QUESTION PRESENTED .........cciiiiniiiietbnioionis 

II. APPELLEES’ STATISTICAL EVIDENCE 
DOES NOT CALL INTO QUESTION THE 

POLITICAL EXPLANATION FOR THE 
DISTRICT IZ LINES ai i ant 

III. THE “DIRECT” EVIDENCE DOES NOT 
SUPPORT THE COURT'S FINDINGS........cccoco ii. 

IV. APPELLEES’ CHALLENGE TO DISTRICT 
12 IS BARRED BY ESTABLISHED 
PRINCIPLES OF CLAIM PRECLUSION 

CONCLUSION 

essssvessscacnnnnee 

ER 

 



  

il 

TABLE OF AUTHORITIES 

Cases 
Bush v. Vera, 

EL B17118.952 (1990) cueeeccrerecerrcissrsresresnsssseens passim 

: Church of Lukumi Babalu Aye, Inc. v. Hialeah, 
EUS 5I0(1993)..... ieee rrr res sms snnens 14 

Federated Dep't Stores v. Moitie, 
AUIS 30401081) cients mines 18,19 

Gaffney v. Cummings, 
RR LL | SE ER I en TT 3 

Kelley v. Everglades Drainage Dist., 
3I9U.8. 415 (1943)... 3 ibe a RS 1 

Michael M. v. Superior Court of Sonoma County, 
450 11.8. 464 (TOBN)......ocniintes cinta 2 5 

Miller v. Johnson, 

513.U.8. 900 (1095) icine isis 4,13, 14 

Pacific Gas & Elec. Co. v. State Energy Res. 
Conserv. & Dev. Comm'n, 

401 U.S. 190 C1983) cue hee in 14 

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)........... 16 

Reeves v. Sanderson Plumbing Prods., Inc., 
1208. Ct. 2097 (2000)......c00 00x cirsirans in foriisnata. 5.17 

Shaw v. Hunt, 

8170.8. 839900996)... conics cc 13,16, 17 

Shaw v. Hunt, 

CA No. 92-202-CIV-5-BR, 
Order (ED.N.C. June 9, 4997)... i 19 

United States v. O’Brien, 
LTR EROME CRE 1 SUR ali ER a 14 

   



111 

TABLE OF AUTHORITIES 

(continued) 

OTHER AUTHORITIES 

18 James W. Moore et al., Moore’s Federal Practice 9 

131.21 13a] 3d ed. 1997) .......cie incision ininiotiminintinzese 19 

18 C. Wright et al., Federal Practice and Procedure 

SA428(I08]) ct dr . 3 

 





INTRODUCTION AND SUMMARY 

A single theme emerges from appellees’ brief in re- 
sponse, and it is one we wholeheartedly endorse: the district 

court’s finding that the North Carolina General Assembly 

was motivated predominantly by race in the design of Dis- 

trict 12 is not supported by the record facts on which the dis- 
trict court relied. Our opening brief detailed the reasons wh 

each of the record cites identified by the court in its analy) 
of the district demographics failed to support an inference of 
predominant racial motive. Not once in their brief do appel- 

lees attempt to rehabilitate the court’s own citations, and the 

record evidence appellees do cite to support the court’s 

analysis of the demographics was not, in fact, relied upon by 
the district court. Appellees’ implicit concession that the 
evidence on which the court actually relied failed to support 
its findings should be enough in and of itself to warrant re- 
versal; evidence the court did not rely on ought not be the 
basis for affirmance, since we cannot know whether the dis- 

trict court itself thought that such evidence supported its 

findings. See Kelley v. Everglades Drainage Dist., 319 U.S. 

415, 420-21 (1943) (refusing to consider “facts which might 

have been considered [by the district court], but which =) 
nowhere referred to in the opinions or findings below”). In 

any event, as we elaborate in this brief, the evidence on 

which appellees now choose to rely provides no more sup- 
port than that on which the court below relied. 

Appellees spend most of the first part of their brief prov- 

ing nothing more than the predicate for the case, viz., that the 

“towns and counties” that make up District 12 appear to be 

divided along racial lines. That is not disputed here, but it 

also is not disputed that those same towns and counties also 

appear to be divided along political lines: the heavily De- 

mocratic precincts are in, and less Democratic precincts are 
out. In the teeth of that evidence, the district court found that 

the statistical evidence “utterly failed” to support a political  



  

2 

explanation for the district lines. J.S. 26a. But even appel- 
lees cannot bring themselves to defend thar finding — con- 

trary to the district court, appellees argue only that the lines 

correspond “more precisely” to racial than to political demo- 
graphics. 

On its face evidence that district lines merely correspond 

“more precisely” to racial than political demographics is 

hardly the kind of strong showing needed to justify a finding 
of racial predominance in the context of electoral districting. 

It 1s also wrong. Every heavily African-American precinct 

in the district is more Democratic than any “white” alterna- 
tive outside the district, and, more generally, almost every 

precinct just inside the border of the district is more Democ- 

ratic than its neighbors just outside the border. The district 
lines, in other words, are wholly consistent with a desire to 

maximize Democratic representation in the District. 

To try to prove otherwise, appellees are forced to argue 
on the one hand that the General Assembly made the district 

too Democratic to have been truly motivated predominantly 

by politics, and on the other hand that the Assembly did not 

make the district Democratic enough to have been truly mo- 

tivated predominantly by politics. As it happens, appellees 

are wrong on both counts, but there is a deeper point: under 

appellees’ “heads-I-win/tails-you-lose” model for proving 

discrimination in electoral districting, no State legislature is 

safe from a finding of race discrimination when it tries to 

draw a partisan-based district anywhere race and political 

behavior are closely aligned. Appellees’ argument confirms 

the danger of freewheeling inquiries into legislative motiva- 
tion in this context in particular. 

Lacking support in the statistical evidence, appellees’ at- 

tempt to prove a predominant racial motivation boils down to 

three pieces of “direct” evidence of legislative intent. But 

this evidence in fact sheds only the weakest indirect light on 

the motives of the General Assembly that enacted the 1997 

    

 



  
3 

statute, unlike the truly direct evidence of State motive in 

this Court’s previous Shaw-type cases. 

Finally, appellees do not offer any truly substantive re- 

sponse to our showing that their claims here are barred by 

routine application of the principles of claim preclusion. 

ARGUMENT 

I. THE SHAPE AND COMPACTNESS OF DISTRI 

12 ONLY RAISES THE QUESTION PRESENTED 

Appellees begin their defense of the district court’s find- 
ings with a lengthy discussion of the District 12’s compli- 

ance with traditional districting criteria, such as compact- 

ness, political subdivisions, and communities of interest. 

Appellees’ Br. at 14-19, 23-25. But it 1s not disputed that 
traditional districting criteria alone do not fully explain the 

shape of the district.’ The question is whether the other fac- 

tors explaining the district lines were predominantly racial or 

political. “The Constitution does not mandate regularity of 

district shape,” Bush v. Vera, 517 U.S. 952, 962 (1996) (plu- 
rality op.), and a “State may draw 1uregular district lines in 

order to allocate seats proportionately to major political par- 

ties,” id. at 964-65 (citing Gaffney v. Cummings, 412 U 

735, 751-54 & 752 n.18 (1973)). For those reasons, “the ne- 

glect of traditional districting criteria is merely necessary [to 

invoke strict scrutiny], not sufficient.” Id. at 962. What the 

plaintiffs must prove is that those criteria were subordinated 

to race, id., and not to the “legitimate state goal” of “incum- 

bency protection,” id. at 964; see id. at 979.° 

  

Appellees cannot contest, however, the significant improvements in 

the appearance of the district over its 1992 counterpart, and the record is 

undisputed that the drafters tried wherever possible not to depart from 

traditional principles: shortening and widening the district, not splitting 
precincts and recognizing communities of interest. 

2 Appellees quote two floor statements of Senator Cooper suggesting 

that the 1997 plan was “not an incumbent protection plan.” Appellees’  



  

4 

II. APPELLEES’ STATISTICAL EVIDENCE DOES 

NOT CALL INTO QUESTION THE POLITICAL 

EXPLANATION FOR THE DISTRICT 12 LINES 

Moving past the departures from traditional districting 
criteria and on to the possible explanations for those depar- 

tures — the question in this case — appellees, like the district 

court, place the bulk of their emphasis on a statistical analy- 

sis of the district’s lines. From the very outset, however, ap- 

pellees have a fundamental disagreement with the district 

court’s analysis. The district court found that the political 
explanation, as a statistical matter, “utterly failed” to explain 

the shape of the district, J.S. at 26a, and that splits in the 

counties and towns that make up District 12 “invariably oc- 
cur along racial, rather than political, lines,” J.S. at 26a (em- 

phasis added). Appellees, by contrast, readily acknowledge 

that “some correlation exists between party and the bounda- 

nies of the Twelfth District,” Appellees Br. at 21, and argue 
only that the district lines “more precisely correlate” with 
race than with politics. Appellees’ Br. at 18; see id. at 21, 
22.23. 

The difference is more than semantic. The district court 

implicitly recognized that, in view of this Court’s admonition 

that courts must exercise “extraordinary caution” before con- 

cluding that a majority of a State legislature was motivated 

predominantly by race in the design of a particular district, 

Miller v. Johnson, 515 U.S. 900, 916 (1995), appellees must 

do more than show that race is a slightly better — “more pre- 

cise” — statistical explanation of the district lines than in- 
cumbency protection. To allow a factfinder to infer racial 

  

Br. at 43 (quoting J.A. 398, 477). Appellees’ quotations are misleading: 

as their full context reveals, Senator Cooper is merely objecting to the 
label. The very next sentence in one of his statements shows that the 

distinction is largely semantic: “This is a plan that attempts to preserve 

the partisan nature of each of the twelve districts as they now exist.” J.A. 
477. 

    

 



  

  

5 

predominance when the statistical evidence is in near equi- 

poise would create a very high risk of error, especially 

where, as here, there is an extremely strong pattern of De- 

mocratic voting behavior among African-Americans. To 
avoid that risk in these kind of circumstances, plaintiffs seek- 

ing to prove legislative motivation primarily on the basis of 

demographic statistics should be required to prove that in- 

cumbency protection statistically fails as an explanation 

lines that otherwise seem to track racial populations.’ » 

The Court need not resolve this question here, however, 

for appellees’ statistical evidence did not even succeed in the 

lesser showing that race was a “more precise” explanation 

for the district lines. To begin with, we showed in our open- 
ing brief that none of the statistical evidence actually relied 
upon by the district court supported its conclusion of racial 

predominance. State Br. at 25-33. Remarkably, appellees 

make no effort to show otherwise. Ignoring the evidence on 

  

? Appellees mischaracterize our discussion of their burden as requir- 

ing proof “that race was the only motive and not merely the predominant 

motive.” Appellees’ Br. at 11 n.12. Our point is more modest, but not 

unimportant: where, as here, plaintiffs seek to prove discriminationg 

part through indirect evidence — such as demographic statistics — 

evidence must do more than establish the possibility of a predominant 

racial motive. The statistical evidence must actually disprove the possi- 

bility that the asserted reason was the true predominant reason. See, e.g., 

Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, 470 

(1981) (the “asserted reason for the enactment of a statute may be re- 

jected, if it could not have been a goal of the legislation” (emphasis 

added; internal quotation marks omitted)). Only then is the factfinder 

entitled (though still not necessarily compelled) to decide that the other 

proffered motive (i.e., race) was the true predominant motive. See 

Reeves v. Sanderson Plumbing Prods., Inc., 120 S. Ct. 2097, 2108 
(2000). If, as is true here, the statistical evidence does not even call into 

question the political explanation, that evidence cannot be relevant to the 

question of which of the two statistically possible explanations is the real 

one. A plaintiff may still try to prove that race was the predominant mo- 

tive through direct evidence, but that evidence then must be sufficient in 

and of itself to justify such a finding.  



  

6 

which the court did rely, appellees instead point to maps, 

charts, and expert testimony on which the district court did 

not rely, and even to theories of motive never presented to 
nor considered by the district court in reaching its conclu- 

sions. See Appellees’ Br. at 22-23, 26-27, 29-30. 

These efforts at avoidance are unavailing, for two rea- 

sons. First, because the court itself did not discuss or even 

cite the evidence on which appellees rely, we cannot know 

whether the court itself believed that that evidence actually 

supported its findings. Indeed, it is possible that the court’s 

refusal to rely on the evidence discussed in appellees’ brief 

reflects its own implicit conclusion that the evidence does 
not support its findings. 

Second, and in any event, the statistical evidence to 
which appellees advert on appeal suffers from precisely the 

same flaws as the evidence actually relied upon by the dis- 
trict court. 

1. Appellees begin by citing — without discussing — a 

clutch of exhibits, charts, maps, and testimony, all of which, 

we are told, show that race explains the district better than 

politics. Appellees’ Br. at 22-23. But upon closer scrutiny, 
all of these items show only one thing, in different ways: 

heavily African-American precincts are almost always as- 

signed to District 12, whereas strongly Democratic “white” 

precincts are not always assigned to the district. That is per- 

fectly true, but also beside the point, for a simple reason dis- 

cussed at length in our opening brief, but ignored by appel- 

lees: it is an undisputed fact that every heavily African- 

American precinct inside District 12 is more reliably De- 

mocratic than the “white” precincts outside the District. J.A. 

140, 156. Appellees do not even try to point to a single pre- 

cinct that could have displaced a heavily African-American 

precinct in District 12 with a predominantly white but 

equally or more Democratic precinct. And the precincts just 
inside the border — without regard to racial demographics — 

    

 



7 

are also consistently more Democratic than those outside the 

border. See J.A. 490, 491, 492.* As the Bush plurality ex- 

plained, “looking at totals, rather than at the difference be- 

tween areas just inside and just outside the district lines, is 

misleading.” Bush, 517 U.S. at 972 n.*. That is because 

evidence focusing on border precincts often better proves the 

predominance of race by showing that district lines were 

“finely drawn to maximize the minority composition of th 

district.” Id. In this case, however, the border precinct -@ 
dence confirms that the lines were finely drawn to maximize 

the Democratic composition of the district. 

  

* There are a few isolated exceptions, but only where the less De- 

mocratic precinct had to be included over the alternative for reasons of 

population equity, shape, or the interests of incumbents in adjacent dis- 

tricts. J.A. 613-14, 622, 625; J.S. 207a-209a. What is more, there are no 

more such “divergences” in voting behavior comparisons than when the 

racial populations of border precincts are compared. J.A. 247, 568-69; 

J.A. 123 (Weber testimony). That is to say, the precincts just inside the 

border are more Democratic than those just outside about as often as the 

precincts just inside the border are more African-American than those 

just outside — confirming that race cannot be shown statistically to pre- 

dominate in the drawing of the district lines. 

3 The comparison between maps showing racial demographics : . 

those showing voting results, cited at length at Appellees Br. at 23, €X% 

emplifies the failure of the evidence on which appellees rely. If one 1g- 

nores the actual Democratic voting behavior of the precincts assigned 

into and outside the district, the district lines might appear to track racial 

population more closely than voting behavior in certain places, because 

the voting behavior maps show several areas outside the district with 

strong Democratic voting performances. What the maps fail to reveal is 

that the precincts inside the border in these areas are almost always more 

strongly Democratic than those outside, with certain fully explainable 

exceptions, see supra note 4. 

Similarly, while appellees contend that a chart of precinct assign- 

ments in the split counties reveals “a startling contrast between assign- 

ment correlated to race and correlated to the four measures of party af- 

filiation,” Appellees Br. at 22 (citing J.A. 515), that chart, in fact, reveals 

nothing of the sort. It compares the assignment of precincts that are more 

than 40% African-American (which are almost always assigned to Dis-  



  

8 

2. Appellees, like the district court, ultimately recognize 

that statistical evidence regarding the exclusion of some 

“white” Democratic precincts cannot alone carry the day in 
the face of undisputed evidence that not one of those pre- 
cincts was as Democratic as the “black™ precincts that were 

included. Thus, appellees, like the district court, are forced 

to argue that, to protect incumbent Representative Mel Watt, 
the General Assembly did not actually need to include as 

many reliably Democratic precincts as it did; ergo, they rea- 
son, the Assembly must have been motivated by race and not 

incumbency protection. Appellees’ Br. at 26 (“the explana- 

tion that the district was constructed for a Democrat to win is 
probably inaccurate if the district is ‘safer’ than necessary for 

any Democrat to win”). That reasoning is flawed in general 
and in every particular. 

To begin with, the argument that District 12 is “too safe” 

1s, in truth, not a statistical argument at all. It reflects a nor- 

mative judgment in respect to the number of reliable Democ- 
ratic voters necessary to make a given district appropriately 
“safe.” And while appellees and their expert witness are 

quick to opine as to what they think makes a district safe 

enough, they do not even attempt to point to any general cri- 

teria lower courts can use to evaluate, and second-guess, a 

sovereign State’s determination as to the appropriate number 

of partisan voters necessary to establish a safe district. 

  

trict 12), on the one hand, with precincts that are more than 40% Democ- 

ratic (which are only assigned to District 12 about half the time), on the 

other. That comparison says nothing about the State’s motivation, how- 

ever, given that those African-American precincts are also much more 

Democratic than others. What is more, the chart also shows that the vast 

majority of precincts in the split counties are more than 40% Democratic; 

obviously not all of those could be assigned to District 12, but in fact 
more than half were. By contrast, less than 20% of the precincts are 
more than 40% black, and the fact that virtually all of them are assigned 

to District 12 is explained entirely by their high proportion of Democratic 
voters. 

   



9 

In this case, appellees point only to other plans that, they 

say, would also have been “safe” for a Democrat. Appel- 

lees’ Br. at 26. Once again, they rely exclusively on evi- 

dence on which the district court did not rely: “the 1998 
plan and draft plans dated as far back as 1995.” Appellees’ 

Br. at 26. The district court cited none of those plans in sup- 

port of its findings. More important, appellees make no ef- 

fort to demonstrate that those alternative districts were - 

ciently safe to protect the District 12 incumbent. The dist 
court’s findings were expressly predicated on appellees’ ex- 

pert’s opinion that 60% single-party representation was the 

“optimum” level for making a district “safe,” but appellees 

do not even try to respond to the fact that District 12 was just 

three percentage points above that figure, and that two other, 
Republican districts were also above the 60% figure. State 

Br. at 27. 

Tacitly acknowledging the failure of evidence actually 
cited by the district court, appellees again point to entirely 

different evidence, and labor to produce a wholly new expla- 
nation for the assignment of African-American precincts to 

District 12. As appellees now see things, the State was at- 

tempting to maximize the number of African-American v 

ers likely to vote in a Democratic primary, which (appell 

say) would essentially guarantee an African-American De- 

mocratic candidate, who could then be expected to prevail in 

a general election in the heavily Democratic district. There 

are at least two problems with this theory. First, it has noth- 
ing whatever to do with the district court’s findings of racial 

predominance, which did not turn in any respect on (or even 

mention) the racial demographics of primary voters. Appel- 

lees did not urge this theory before the district court, and the 

district court did not perform, sua sponte, the complicated 

  

® Appellees’ argument that the 1998 plan was a viable, non-racially 

motivated alternative rings especially hollow, given that they themselves 

challenged the 1998 plan, too, as an unconstitutional racial gerrymander.  



  

10 

calculations on which appellees’ theory depends. Appellees 
Br. at 26-27 & n.24. Second, even if the district court had 

considered primary voter racial demographics in making its 
findings, there is not one shred of evidence in the record that 

the State considered such information in designing District 

12, much less any hint that the State acted on the basis of 
such calculations. 

3. Having failed to justify the court’s inference of a pre- 
dominant racial motive on the ground that District 12 was 

too Democratic for partisanship to explain the district lines, 

appellees immediately turn 180 degrees and argue that the 

statistics also show, to the precise contrary, that the district is 

not Democratic enough for politics to explain the district 

lines. Appellees’ Br. at 29-31. Putting to one side for the 
moment the merits of their discussion on the latter point, it 

must be noted up front that, if countenanced here, this ex- 

traordinary method of proof will put State legislatures in a 
virtually inescapable box any time they try to maximize par- 

tisan representation where race and partisan voting patterns 
correlate closely. When a district is slightly more partisan 

than it “should” be if partisanship explains the district, the 

State risks losing a challenge to the district; but if the State 

tries to avoid that risk by making the district less partisan, it 

risks going slightly too far, and then losing a challenge be- 

cause the district is not partisan enough. It is hardly “sensi- 

tive to the complex interplay of forces that enter a legisla- 

ture’s redistricting calculus,” Bush, 515 U.S. at 915-16, to 

subject States’ efforts to redraw district lines to that sort of 
litigation whipsaw. 

Fortunately, in this case at least, appellees’ attempt to 

prove that a different, more Democratic district could have 

been drawn, Appellees’ Br. at 30 & n.25, fails on its own 
terms.” On appeal these efforts are based primarily on maps 

  

” Contrary to appellees’ assertion, nobody contends that plaintiffs in 

all Shaw cases “must show how to construct a more politically gerry- 

   



11 

appended to their brief that “show some precincts outside the 

district which voted for the Democratic candidate in all three 

elections ... and some precincts inside the district which 
vote Republican in the same group of elections.” Id. at 30. 

These maps, appellees contend, “make clear that a swap 

could occur,” id. — i.e., the precincts that voted Republican 

could have been removed and replaced with precincts with 

similar populations that voted Democratic, thus making 

district more Democratic. The fact that the General Ass 

bly did not make these choices, appellees argue, justifies the 
district court’s conclusion that race must have been the pre- 

dominant motive. Appellees are wrong. 

First, appellees here — as almost everywhere else in their 
brief — rely exclusively on evidence the district court did not 
rely on in making its findings. The only things the court did 
rely on — what the court in fact said was “[o]f particular 

note” in respect to the State’s motivation, J.S. 26a — were Dr. 
Weber’s suggestion that a single split precinct (Precinct 77) 

could have been kept whole, and that a few Mecklenburg 

precincts could have been shifted from District 12 into Dis- 
trict 8. See State Br. at 30-33.° Although the court explicitly 

identified these facts as especially important to its nding 

a predominant racial motivation, appellees do not contest 

showing in our opening brief that Dr. Weber's suggestions 

were not realistic and workable alternatives. Id. 

Second, not only did the district court not rely on the al- 
ternatives appellees now propose; it could not have relied on 

  

mandered district.” Appellees’ Br. at 29. In this Shaw case, however, it 

is the plaintiffs who have sought to prove that the State's asserted politi- 

cal motive was pretext by showing that if politics was the true motive, 

different district lines would have been drawn. 

® In fact, not even Dr. Weber argued that his proposed alterations to 

the district lines would have made the district more Democratic. To the 

contrary, he argued that it would be less Democratic, but more compact. 

See State Br. at 31-32 (discussing Weber's alternatives).  



  

12 

those alternatives because neither the maps, nor their under- 
lying data, were presented to the district court. 

Third, in arguing for the first time on this appeal that 

these alternatives establish proof of the State’s predominant 

racial motive, appellees make no effort to defend or justify 

the alternative proposals in terms of the range of geographic 

and political factors the State would have had to consider in 
deciding whether the lines appellees now propose would 

have satisfied all of the State’s many needs in redistricting. 

A court, however, must consider “whether race predomi- 

nated in the redistricters’ actions in light of what they had to 

work with.” Bush, 517 U.S. at 972 n.* (emphasis in origi- 

nal). It is precisely such evidence of context, for example, 

that refuted the Weber alternatives on which the district court 
relied and which appellees have chosen not to defend. But 

because appellees did not present these other alternative pos- 

sibilities below, the record is devoid of evidence as to all the 

various factors the General Assembly would have “had to 
work with” in respect to the lines appellees now suggest. 

Such lines therefore can have no weight at all in determining, 

on appeal, whether the district court’s finding of racial pre- 
dominance is supportable.’ 

Finally, then, appellees are reduced to suggesting that the 

State should have extended the district an additional twenty 

miles to either “Burlington or Gastonia in a manner not 

unlike the 1992 Twelfth District.” Appellees Br. at 30. Ap- 

  

? Lest we leave the mistaken impression that appellees’ proposals 

likely would have been shown to be workable, we note that appellees’ 

primary alternative proposal — to delete the High Point precincts, Appel- 
lees’ Br. at 30 n.25 — was not viable, for it would have defeated the 

State’s goal of improving the shape of the district in comparison to its 

1992 counterpart. The map appended to this brief reflects appellees’ 
proposed alternative; as that map shows, their proposal would have left 

the district held together by a narrow thread, a feature of the 1992 plan 

the State consciously sought to avoid. 

   



13 

pellees argue, in other words, that the General Assembly’s 
decision not to draw a district that looked more like the dis- 

trict invalidated in Shaw itself proves that the Assembly must 

have been motivated predominantly by race in drawing this 

much more compact, less minority district. This argument 

cannot be taken seriously, except insofar as it exposes the 

logically absurd limit of appellees’ efforts to prove racial 

predominance by casting about for possible alternative § 3 
trict lines that could have been drawn to create a Democra 

district. © What these efforts principally ‘show is that a 
mathematically near-infinite number of hypothetical alterna- 

tive lines could be drawn to fulfill any one stated goal. Most 

States, however, do not redistrict in the realm of the mathe- 

matically abstract. They are, this Court has recognized, con- 

strained by a wide variety of considerations that must be 

taken into account at every potential turn in the district lines, 

and this Court has emphasized that, contrary to the theory of 
appellees’ case here and to the findings of the district court, 

courts must give substantial deference to any State’s efforts 
to balance all those considerations. 

III. THE “DIRECT” EVIDENCE DOES NOT SUPPORT 

THE COURT’S FINDINGS 

As discussed above, supra note 3, where the indirect, sta- 

tistical evidence fails to rebut the State’s assertion that it was 
predominantly motivated by legitimate, nondiscriminatory 

considerations, the direct evidence must be sufficient in and 

of itself to establish that such considerations were not pre- 

dominant and that race was. In cases like Bush v. Vera, 

Miller v. Johnson, and Shaw v. Hunt, such proof was clear: 

the State in each case explicitly conceded that the district at 
issue was drawn to maximize minority voting power and/or 

to satisfy the Justice Department’s demand for an additional 

majority-minority district. See State Br. at 19-20 (discussing 

cases). Appellees cannot — and do not — deny that that the 

evidence of legislative motive in this case does not even be-  



  

14 

gin to compare with the evidence in this Court’s other Shaw- 
type cases. 

Unlike the concessions in earlier cases, none of the “di- 

rect” evidence cited by appellees here actually says anything 
direct about the motives of the General Assembly members 

who voted for the statute.’ At the very most, the e-mail 

from Gerry Cohen to Senator Cooper, and Senator Cooper’s 

two individual floor comments, provide only indirect evi- 
dence as to what motivated the lawmakers who actually en- 

acted the 1997 redistricting statute. The proper question, 
then, 1s whether the few, individual statements on which the 

district court relied for its broad inference of legislative mo- 
tive in respect to District 12’s lines are, of themselves, suffi- 

cient to satisfy the “demanding” showing in respect to legis- 
lative motivation required to prove a Shaw claim. Miller, 

515 U.S. at 928 (O’Connor, J., concurring). 

1. Tuming first to the Cohen e-mail, appellees argue that 

this evidence proves the General Assembly’s motives be- 
cause it is a “view behind the scenes” of the redistricting 

process. Appellees’ Br. at 34. But the e-mail was sent only 

to two legislators; there is no evidence that any others ever 

saw the e-mail. Appellees nevertheless contend that the e- 

mail reflects a “snapshot view of a Miller violation in 

pro[griess,” id. at 35, because it proves that a “significant 

  

' See United States v. O’Brien, 391 U.S. 367, 384 (1968) (“What 
motivates one legislator to make a speech about a statute is not necessar- 

ily what motivates scores of others to enact it, and the stakes are suffi- 

ciently high for us to eschew guesswork.”); accord Pacific Gas & Elec. 

Co. v. State Energy Res. Conserv. & Dev. Comm'n, 461 U.S. 190, 216 

(1983); cf. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 

558 (1993) (Scalia, J., concurring and dissenting) (“[I]t is virtually im- 

possible to determine the singular ‘motive’ of a collective legislative 
body . . . and this Court has a long tradition of refraining from such in- 

quiries.”’). As appellees themselves put it, “the ultimate question is still 

the legislative intent, and not the subjective intent of Senator Cooper.” 
Appellees’ Br. at 39. 

   



15 

number of voters” were moved into District 12 on the basis 

of their race, id. The Cohen e-mail proves no such thing. 

First, appellees rest their contention on the misleading state- 

ment that “the entire e-mail is primarily a discussion of race 
and racial percentages for the First as well as the Twelfth 

District.” Appellees’ Br. at 35. In fact, the e-mail — the en- 

tirety of which appears at J.A. 369 — discusses District 1 al- 

most exclusively. And the e-mail does indeed discuss pres 
cise racial percentages in respect to District 1, because 
State was trying to establish a minority-majority in that dis- 

trict, as the State has acknowledged all along. See J.S. 31a- 

35a (district court upholding predominant use of race in de- 
sign of District 1 to satisfy V.R.A. § 2). It is only after the 
long District 1 discussion that Cohen adds a single oblique 

reference to moving the Greensboro black community into 

District 12. 

Second, on its face that oblique sentence only describes 

some of the voters shifted by a change in the new draft plan 
— it does not say those voters were moved into the district 

because of their race. Moving those voters also served the 
State’s legitimate and consistently applied goals of prevent- 

ing a three-way split of Guilford County, and shifting a 1 
block of Democrats into District 12 and out of bis) 

(which was occupied by a Republican). To conclude from 

the e-mail that race predominated over these other goals in 

the drawing of the District 12 lines, one has to pile inference 

on top of inference: first, that Cohen is not just describing 

the voters moved into District 12, but also identifying his 

understanding of the reason they were moved; then, that the 

overall General Assembly had the same reason in mind when 

it enacted the statute; and even then, that the race-related rea- 

son was not just one of the General Assembly’s motives, but 

the Assembly’s predominant motive. Even assuming the e- 

mail suggests something about the motives of some of the 

participants in the redistricting process, it is a wildly distant 
cry from the official State concessions of racial motive on  



  

16 

which this Court was able to base inferences of predominant 
legislative motive in other Shaw cases. Cf. Price Water- 
house v. Hopkins, 490 U.S. 228, 277 (1989) (O'Connor, J. 
: concurring) (“stray remarks in the workplace . . . cannot jus- 
tify requiring the employer to prove that its hiring or promo- 
tion decisions were based on legitimate criteria”). 

2. Senator Cooper’s observation (prior to this Court’s 
decision in Lawyer) that because District 12 is not majority- 

_ minority, “it is my opinion and the opinion of many lawyers 
that the test outlined in Shaw v. Hunt, will not even be trig- 
gered because it is not a majority-minority district,” J.A. 475, 

provides even less support for an inference that race pre- 

dominated the drawing of the district lines. According to 
appellees, “[1]f there were no racial motive driving the for- 
mation of the Twelfth District, there would be no need to be 

concerned about ‘triggering the test of Shaw.”” Id. at 39. 
Appellees are quite wrong: the entire point of Cooper’s 
statement was to promote passage of the plan to senators 
who were concerned that, among other things, the plan might 
provoke yet another costly constitutional challenge from 
counsel for appellees. And there is not even a whisper of 
record evidence that anybody involved in drafting the plan 
believed there to be a “target” of crafting a district with just 
under 50% minority population. See J.A. 195, 211-12, 
220-21, 228-29, 236-38, 602, 621, 645-47." 

  

'! The statements of Representative McMahan discussed in Appel- 
lees Br. at 38-39 were, yet again, not relied upon by the district court. If 
anything, however, they only confirm that race was the motive that was 
readily compromised in the design of District 12 in favor of incumbency 
considerations. See Shaw v. Hunt, 517 U.S. 899, 907 (1996) (race is pre- 
dominant when, in the presence of other motives, it is the one criterion 
that “could not be compromised”). In the very passages appellees cite, 
J.A. 455, 471, Representative McMahan is anticipating and responding to 
questions from members who might be objecting to the Plan on the 
ground District 12 does not have enough African-American residents. 
Representative McMahan tries to assuage such concerns by agreeing that 

   



17 

3. Finally, whatever Senator Cooper actually meant by 

his rather obscure statement on the floor that the 1997 plan 

“provides for fair geographical, racial and partisan balance 

throughout the State of North Carolina,” J.A. 221, at the very 

most the statement establishes that he and the others consid- 

ered each of those factors.'> That provides no basis whatso- 

ever for an inference that race predominated over the other 

factors, see State Br. at 38, and appellees do not even atte 

to suggest any such basis. Instead they point to statem 

by other individual legislators referring to the racial balance 

of the plan (without further explanation), Appellees’ Br. at 

40, statements on which — once again — the district court did 

not rely." 

  

if the “incumbency [protection] elements” of the plan are put to one side, 

the plan is still “racially fair” even though it is not majority-minority be- 

cause a minority “will have a fair chance of being elected.” J.A. 471. 

The point being made is that while the district is less “racially fair” than 

it would have been had the State been predominately motivated by race, 

it is not unfair to minority voters and candidates. In the colloquy 

McMahan is also careful to caution his questioner that race “can only be 

a factor — along with other factors — and that’s what we've tried to 
J.A. 470-71. 

    

12 Appellees assert that the district court “found that Appellents’ key 
witnesses were ‘not credible’ and ‘not reliable,” and that these findings 

“suffice[] . . . to support the inference in this case that the Appellants had 

a predominant racial motive they were trying to conceal.” Appellees’ Br. 

at 11 n.12 (emphasis added) (citing Reeves, 120 S. Ct. at 2108). But the 

district court did not find that the State’s “key witnesses” or “the Appel- 

lants” were not credible; it rejected only the testimony of Senator Coo- 

per. And the only evident basis for rejecting his testimony was the 

court’s conclusion that it could not be reconciled with the statistical evi- 
dence, a conclusion that, as we have seen, is insupportable. 

'> Appellees also rely on the testimony of several individual legisla- 

tors, who testified at trial as to their view that the race predominately 

motivated the General Assembly’s enactment of the 1997 plan. Appel- 
lees’ Br. at 45-47. But none of these legislators was involved in any way 

in the drafting process, and such evidence was incompetent testimony as  



  

18 

IV.APPELLEES’ CHALLENGE TO DISTRICT 12 IS 
BARRED BY ESTABLISHED PRINCIPLES OF 
CLAIM PRECLUSION 

Appellees contend that none of the three elements of 

claim preclusion exist here. See Appellees’ Br. at 53-54. 
Appellees are wrong at every turn. 

1. The judgment of the Shaw court is indisputably a final 

judgment on the merits for preclusion purposes. The rele- 
vant question is whether that judgment encompassed the 

“same claim” as this subsequent suit. 

2. The answer to that question is yes, because the current 

action raises “issues that were or could have been raised” in 
the prior proceeding. Federated Dep't Stores v. Moitie, 452 

U.S. 394, 398 (1981). The Shaw plaintiffs had the opportu- 

nity to raise any argument that the 1997 Plan failed to “cure 

the constitutional defects in the former plan” with respect to 

District 12. Shaw v. Hunt, CA No. 92-202-CIV-5-BR, Order 

(E.D.N.C. June 9, 1997). This action involves exactly that 
1ssue — viz., whether District 12 in the 1997 Plan remains un- 

constitutional — and so necessarily implicates the “same 

claim” for preclusion purposes. If it does not, plaintiffs in 
any redistricting challenge could stand silent when specifi- 

  

to the state of mind of those who were; it is likely for these reasons that 

the district court disregarded such testimony in making its findings. 

Similarly, appellees press on appeal their inevitable argument that 

District 12 1s unconstitutional because it is “tainted” by the previous, 

unconstitutional District 12 in the 1992 Plan. Appellees’ Br. at 41-45. 

Even putting the significant differences in appearance between the two 

districts to one side, the dispositive point is that the district court in this 
case explicitly rejected appellees’ argument, holding that “[a] comparison 

of the 1992 District 12 and the present District is of limited value here.” 
J.S. 24a. Appellees also raised this same argument in the earlier sum- 
mary judgment appeal before this Court, but the Court’s opinion in that 
appeal did not even mention any “taint” remaining from the earlier Dis- 
trict 12 as relevant evidence on appellees’ side of the question. 

   



19 

cally given an opportunity to raise constitutional objections 
to a new districting plan remedy, and then promptly file suit 

in a subsequent action alleging that the revised plan is un- 

constitutional. That 1s precisely the sort of outcome claim 
preclusion principles are intended to prevent.'* 

3. Finally, appellees submit that preclusion requires 

identity of the parties. This Court, however, has repeated] 

acknowledged that claim preclusion applies not only to 

same parties but extends to their “privies.” See, e.g., Moitie, 
452 U.S. at 398. The question here, then, is whether the two 

sets of plaintiffs are in privity. As we explained in detail in 

our opening brief, counsel’s representation of both sets of 

plaintiffs, the concomitant coordinated and tactical maneu- 
vering and forum-shopping, the closely aligned interests and 

overlapping participation of the plaintiffs in the two cases, 

and the “fence-sitting” implications of a public law issue of 

the sort implicated by this action, all combine to establish 

privity here. See State Br. at 48-49. Otherwise, a party 
could essentially game the system by lining up one plaintiff 

after another to raise successive challenges to any govern- 

   

  

'* Appellees argue that the two proceedings cannot involve the g 

claim because the Shaw plaintiffs lacked Article III standing to file a 

separate lawsuit challenging the revised District 12 as a racial gerryman- 
der. See Appellees’ Br. at 54. But the Shaw plaintiffs did have standing 
to address the remedial adequacy of the 1997 Plan in the Shaw litigation 

itself, including whether the 1997 Plan eliminated District 12’s unconsti- 

tutional aspects. See J.S. 319a (any “lack of standing on their part to 

challenge the constitutionality of that particular configuration of districts 

cannot affect our retained jurisdiction to review the plan for its adequacy 

to remedy the violation found as to former District 12°’). In addition, 

even if the first court erred as to its subject-matter jurisdiction over plain- 

tiffs’ objections — and further assuming that plaintiffs only had standing 

to make such objections to the extent they would have had standing to 

file a separate complaint — such an error does not undermine the preclu- 

sive effect of its judgment. See 18 James W. Moore et al., Moore’s Fed- 

eral Practice § 131.21[3][a], at 131-44 to 131-45 (3d ed. 1997); 18 C. 
Wright et al., Federal Practice and Procedure § 4428, at 272 (1981).  



  

20 

mental action in different courts until one challenge finally 
succeeded in obtaining the desired injunctive relief. 

* kx Xx k 

This case presents itself on the eve of the next round of 
electoral redistricting by the States. If the district court’s 

finding of racial predominance is affirmed on the facts in this 

record, States will be loathe to draw partisan districts where 

race and voting behavior correspond. They will under- 

standably fear that the boundary correlation with partisan 

voting may turn out to be insufficiently “precise” to ward off 
costly federal-court litigation. Reversal of the judgment be- 

low, on the other hand, would not undermine the limits Shaw 

imposes on redistricting behavior. Cases like Miller, Bush, 
and Hunt have established clear and effective guideposts for 
evaluating Shaw challenges. Where, for example, a State 

repeatedly (and inexplicably) includes precincts that have 

numerous minority voters but that also make the district less 
partisan (as the State did in Bush, 517 U.S. at 971), or where 

a State repeatedly (and inexplicably) excludes non-minority 

precincts that are more partisan than precincts included, or 
where the direct evidence clearly demonstrates that the State 

Legislature enacted the redistricting statute with lines drawn 

for predominantly racial reasons, a challenge will succeed. 
No such showings have been made in this case. 

CONCLUSION 

For the foregoing reasons, and for the reasons previously 
stated, the judgment should be reversed. 

   



November 8, 2000 

Respectfully submitted, 

MICHAEL F. EASLEY 
North Carolina Attorney General 

Tiare B. Smiley* 

Special Deputy Attorney General 

Norma S. Harrell 

Special Deputy Attorney Genel 

Walter E. Dellinger 

O’Melveny & Myers LLP 

Brian D. Boyle 
O’Melveny & Myers LLP 

Sri Srinivasan 
O’Melveny & Myers LLP 

Jonathan D. Hacker 
O’Melveny & Myers LLP 

* Counsel of Record 

 



  

  

  

  

FOOTNOTE 25 ALTERNATE 

GUILFORD COUNTY PRECINCTS 
LEGEND 

—— i COUNY Lines 

Precinct Lines 

District Line 

Precincts moved into District 12 

Precincts moved out of District 12 

    
  

  

Eh 

  

  

  —r
 

  

Oak Ridge 

id 
Deep River 

  
  

B ruce 

Guilford 

County 

    

   

North Monroe 

    
    North Center Grove ERG 

South Center Groye 

South Monroe   

   
    

      Friendship-2 

      

Jamestown-3 

  

   

   
   

    

   

District 12 

Jamestown-2 

  
  

  

Fentress-2 

North Sumner 

South Sumner Fentress-1 

  

    

North Jefferson 

South Jefferson