Attorney Notes

    No. 98-85 
  

In The 

Supreme Court of the United States 
4   

October Term, 1998 

JAMES B. HUNT, JR., in his official capacity 

as Governor of the State of North Carolina, et al., 

Appellants, 

VS. 

MARTIN CROMARTIE, et al., 

Appellees. 

On Appeal from the United States District Court 

for the Eastern District of North Carolina 

  

BRIEF OF AMICI CURIAE BRENNAN CENTER FOR 

JUSTICE AT NEW YORK UNIVERSITY SCHOOL OF LAW, 

ASIAN AMERICAN LEGAL DEFENSE AND EDUCATION 

FUND, AND PUERTO RICAN LEGAL DEFENSE AND 

EDUCATION FUND, INC. IN SUPPORT OF APPELLANTS 
  

BURT NEUBORNE 

Counsel of Record 

DEBORAH GOLDBERG 

RICHARD R. BUERY, JR. 

BRENNAN CENTER FOR JUSTICE 

at New York University School of Law 

Attorneys for Amici Curiae 

161 Avenue of the Americas 

Fifth Floor 

New York, New York 10013 

(212) 998-6730 

  

149584 €J Counsel Press LLC 
FORMERLY LUTZ APPELLATE SERVICES 

(800) 274-3321 » (800) 359-6859  



  

 
 

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TABLE OF CONTENTS 

Page 

Table of Contents”. . .. 0. it. JL alm ine 1 

Table of Cited Authorities"... .o. uu i dn 1v 

Interests of Amici Curiae fouod 8. 5 said 1 

Introduction and Summary of Argument ........... 2 

Argument =. ol a RE SSE 5 

I. Courts Deciding Shaw Claims Must Recognize 
Plaintiffs’ Unusually “Demanding” Evidentiary 
Burden. or de Te 5 

A. Claims of Unconstitutional Gerrymandering 

Under Shaw Require Proof That Race Was 

the “Dominant and Controlling” 

Consideration in Drawing District Lines. 

SERRE aie IT CS eR ERR RE 5 

B. Shaw Offers No Guidance to Courts 

Deciding Whether Plaintiffs Have Carried 

Their Burden. 20a iE 6 

C. If the Court Declines to Reconsider Shaw, 

the Court Should Provide a Workable 

Framework for Shaw Actions That Preserves 

Plaintiffs’ Demanding Evidentiary Burden.  



  

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Contents 

The Court Should Impose a Demanding 

Production Burden Before Allowing 

District Courts to Infer a Predominantly 

Racial Purpose From Circumstantial 

Bvidence. ..............0 ced 

a. Plaintiffs Should Be Required to 

Present Compelling Evidence That 

a Challenged District Flunks 

Functional Test for Geographical 

COMPACINESS......ocvscinrenricnivssntssne sire 

b. Plaintiffs Should Also Be Required 

to Present Compelling Evidence 

That a Challenged District Seriously 

Distorts the Region’s Racial 

DeMOSIaPIICS. .cic.cvviiiiiccinnnsceisdionss 

If Plaintiffs Satisfy Their Production 

Burden, Defendants Must Produce 

Evidence That Race Was Not the 

Predominant Motive, with Plaintiffs 

Retaining the Ultimate Burden of 

Proving Unconstitutionality. ....... 

When Plaintiffs Cannot Carry Their 

Burden of Proof, Courts Should Defer 

to the Legislature’s Line-Drawing 

Judgments, ... 00 C8. 0 0 Ae us 

Page 

10 

14 

Ji! 

15 

   



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Contents 

II. The District Court Improperly Relieved Plaintiffs 

Of Their Demanding Burden Of Proof. ...... 

A. 

Conclusion 

Applying the Appropriate Framework, 

Plaintiffs Failed to Meet Their Substantial 

Burden of Demonstrating That Race Was 

North Carolina’s Predominant Purpose in 

Redistriching, & .... .ai vd aini ives 

1. Plaintiffs’ Circumstantial Evidence 

Failed Even to Raise an Inference of 

Discriminatory Purpose. ........... 

Defendants Fully Rebutted Any 

Inference That Race Was the 

Predominant Factor in the Districting 

PIOCESS. coh. visions ies sins in 

The District Court Relieved Plaintiffs of 

Their Difficult Burden of Proof By Relying 

on Impact, Rather Than Intent, to Find a 

Constitutional Violation. .............. 

NE a set SR Re a TE TRY ee VES Wl Ie ee HE A oe el 7 Ct a Ty a ae 

Page 

16 

17 

17 

19 

24 

28 

 



  

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TABLE OF CITED AUTHORITIES 

P 

Cases: fae 

Abrams v. Johnson, 117 S. Ct. 1925 (1997) ...... 2:5.21.23 

Agosto v. INS, 436 U.S. 748 (1978)... .. ein iin 27 

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

I end So Dell, oe, SESS aw EES Se GE 235,26 

Arlington Heights v. Metropolitan Housing Dev. Corp., 

429 11.8. 25203977)... sc sae a ae se 6 

Baker vi Carr,369 U.S. 136 (1962) ............ons 16 

Bush v. Vera, 517 1U.8.952(1996) .... 2,5,7,13,20,22,23 

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ....... 25 

Chen v. City of Houston, 1998 U.S. Dist. LEXIS 9860 

(SD. Tex. 1998)... oui us iain vb i diet 10 

Colegrove v. Green, 328 U.S. 549 (1946). .......... 16 

Crawford-el v. Britton, 118 S. Ct. 1584 (1998) ...... 25,27 

Cromartie v. Hunt, No. 4:96-CV-104-BO (3) (E.D.N.C. 

April’l4, 1998) ‘Lui, caval als 17, 18,21,22, 23,25 

Davis v. Bandemer, 478 U.S. 109 (1986) ........... 15,16 

DeWitt v. Wilson, 856 F. Supp. 1409 (E.D. Cal. 1994), 

aff dnem., 515 U.S. HI0(1998) ........ van v, 10 

  

  

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Table of Cited Authorities | 

Page 

Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 

ASE(1902), iv . teitit errs sr Nk a Se rw nag 26 

Gingles v. Edmisten, 590 F. Supp. 345 (E.D.N.C. 1984), 

aff'd in part and rev'd in part sub nom., Thornburg v. 

Gingles, 478 U.8.30(1986) .........c.csevvsan 22 

Gomillion v. Lightfoot, 364 U.S. 339 (1960) ....... 6, 16, 24 

Holder v. Hall, 3121.8. 874(1994) ....... .convnns 15 

Wineis v. Krull, 430 U.S. 340(1987) .. ....c...0u. vi 9 

Johnson v. Meltzer, 134 F.3d 1393 (9th Cir. 1998) ... 27 

Johnson v. Miller, 922 F. Supp. 1556 (S.D. Ga. 1995) 
TE ea Ce ae PO EN SEE ENS 23 

King v. State Bd. of Elections, 979 F. Supp. 619 (1997), 

aff'd mem., 118 S. Ct. 877 (1998), ............:. 28 

Lawyer v. Department of Justice, 117 S. Ct. 2186 (1997) 

ee et Sw hone bY A re a ay 2.5,18,23 

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

i ena a ou lite 3 2.5.6,7,9,14. 15,20, 25,26 

Prosser v. Elections Bd., 793 F. Supp. 859 (1992) ... 11,12 

Reynolds v. Sims, 377 U.S. 533 (1964) ............. 15  



  

Vi 

Table of Cited Authorities 

Page 

Shaw v. Hunt, 517 U.S. 899 (1996) ......... 2.5,6,8,16,20 

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

Thornburg v. Gingles, 478 U.S. 30 (1986) .......... 16, 22 

United States v. Hays, 515 U.S. 737 (1995). ........ 2 

Wesberry v. Sanders, 376 U.S. 1 (1964) ............ 15 

White Motor Co. v. United States, 372 U.S. 253 (1963) 

Rn rc RE RC Re Se aa SP 27 

Wilsonv. Eu, 823P.24d 545(Cal. 1992) ............. 10 

Yick Wo v. Hopkins, 118 U.S. 356 (1886) ........... 6 

Rules: 

Ped. R Civ. P.SO(E) ..... 0 dvinriaiienis Shainin 25 

Supreme Court RUl€ 37.6 .......... conve icine 1 

Other Authorities: 

T. Alexander Aleinikoff & Samuel Issacharoff, Race and 

Redistricting: Drawing Constitutional Lines after 

Shaw v. Reno, 92 Mich. L. Rev. 588 (1993) ...... 12 

Michael Barone & Grant Ujifusa, The Almanac of 

American Politics 1998(1998) ......cevceuvi.. 21 

  

  

  

   



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Vil 

Table of Cited Authorities 

Keith J. Bybee, Mistaken Identity: The Supreme Court 

and the Politics of Minority Representation (1998) 

| BR BR a COT IS Nl SE ER TE Te RT NN SY HE NE A Sh MR Se ve TR i Sa Tl ye ST TR A SR he 

Page 

15 

Bruce Cain, The Reapportionment Puzzle (1984) .. 11, 12,13 

Robert G. Dixon, Jr., Fair Criteria and Procedures for 

Establishing Legislative Districts, in Representation 

and Redistricting Issues (Bernard Grofman et al. eds., 

6000 ORR Se Sr Se le DY 

Bernard Grofman, Criteria for Districting: A Social 

Science Perspective, 33 U.C.L.A. L. Rev. 77 (1985) 

oe oilate wislinoel we eine ein elie nerelets sien elieie ie wie eee 8 erie eee a 

Paul A. Jargowsky, Metropolitan Restructuring and 

Urban Policy, 8 Stan. L. & Pol’y Rev. 47 (1997) 

| Ae, ot Gr NE HE BR OTS SE They BEE UES BRT REY SSE WU ol eG TNE GS TH SAYRE URE SRM Th i A Ra a ger JE I i Ne 

Steven A. Light, Too (Color)Blind to See: The Voting 

Rights Act of 1965 and the Rehnquist Court, 8 Geo. 

Mason U. CiveRis. LJ. 1(1997) ..ccoinnsiiiiniisa 

Daniel H. Lowenstein & Jonathan Steinberg, The Quest 

for Legislative Districting in the Public Interest: 

Elusive or Illusory?, 33 U.C.L.A. L. Rev. 1 (1985) 

Cte TOE 4 EY US eT Sy BS SR SR dW GY SF SE AE He eal Wh ACIS JR we JEG RI Sa Re BE SAA eT She Lo Je i 

Stephen J. Malone, Recognizing Communities of Interest 

in a Legislative Apportionment Plan, 83 Va. L. Rev. 

UY RELL YL SRR RR ell Et MORE SR EN 

16 

13 

12 

11 

13,16  



  

viii 

Table of Cited Authorities 

Hanna Fenichel Pitkin, The Concept of Representation 

G4 YEAR in ER I CE 

Richard H. Pildes & Richard G. Niemi, Expressive 

Harms, “Bizarre Districts,” and Voting Rights: 

Evaluating Election-District Appearances After Shaw 

v. Reno, 92 Mich. L. Rev. 483 (1993) 

10B Wright, Miller & Kane, Federal Practice & 

Procedure: Civil 3d § 2730 (1998) ® os so oo ov es 8 8 es oe wu 

Page 

15 

11 

    
   



  

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INTERESTS OF AMICI CURIAE 

With the consent of the parties, the Brennan Center for 

Justice at New York University School of Law; the Asian 

American Legal Defense and Education Fund, Inc.; and the 

Puerto Rican Legal Defense and Education Fund, Inc. submit 

this brief amici curiae in support of Defendants-Appellants.' 

Letters of consent are on file with this Court. 

The Brennan Center for Justice at New York University 

School of Law is a nonpartisan institute dedicated to a vision 

of inclusive and effective democracy. The Center unites the 

intellectual resources of the academy with the pragmatic 

expertise of the bar in an effort to assist both courts and 

legislatures in developing practical solutions to difficult 

problems in areas of special concern to Justice William 

Brennan, Jr. To that end, the Center has created a Democracy 

Program, which undertakes projects that promote equal 

representation and other core ideals of democratic government. 

The Center takes an interest in this case because of its 

implications for the effective representation of minority 

populations and submits this brief in the hope of providing a 

workable framework for deciding Shaw actions. 

The Asian American Legal Defense and Education Fund 

(“AALDEF”), founded in 1974, is a nonprofit organization that 

protects the legal rights of Asian Americans. AALDEF has 

represented the Asian American community in numerous cases 

and administrative proceedings under the Voting Rights Act. 

The Court’s decision in Shaw v. Reno has been interpreted in 

ways that have limited the rights of Asian Americans to 
  

1. Pursuant to Supreme Court Rule 37.6, amici state that no counsel 

for a party authored this brief in whole or in part; and that no person or 

entity, other than amici, has contributed monetarily to the preparation 

and submission of this brief.  



  

2 

participate fully in the political process. The decision below is 

another clear example of how the distorting lens of Shaw has 

been used to depict the permissive consideration of communities 

of interest as the impermissible consideration of race. AALDEF 

takes an interest in this case because the continued viability of 

electoral participation is threatened by this misapplication of 

the Equal Protection Clause. 

The Puerto Rican Legal Defense and Education Fund, Inc. 

(“PRLDEF”) is a national civil rights organization that exists 

to ensure that every Puerto Rican as well as other Latinos are 

guaranteed equal opportunities to succeed. Through litigation, 

advocacy, and education, PRLDEF has initiated hundreds of 

cases to combat discrimination in significant areas such as 

voting, education, housing, and language rights. It is of 

paramount importance to PRLDEF that its constituency be 

afforded full access to the political process. PRLDEF takes an 

interest in this case because the district court’s interpretation 

of Shaw v. Reno, if allowed to stand, threatens to deny 

PRLDEF’s constituency the opportunity to participate fully and 

effectively in the political process by joining with non-Latinos 

in common communities of interest. 

INTRODUCTION AND SUMMARY OF ARGUMENT 

Under Shaw v. Reno, 509 U.S. 630 (1993) (“Shaw I’), and 

its progeny,’ efforts to enhance the political power of racial 

minorities by using race as the dominant and controlling factor 

in creating “majority-minority” legislative districts violate the 

Equal Protection Clause of the Fourteenth Amendment. While 
  

2. See, e.g., Lawyer v. Department of Justice, 117 S. Ct. 2186 

(1997); Abrams v. Johnson, 117 S. Ct. 1925 (1997); Bush v. Vera, 517 

U.S. 952 (1996) (plurality opinion); Shaw v. Hunt, 517 U.S. 899 (1996); 

Miller v. Johnson, 515 U.S. 900 (1995); United States v. Hays, 515 U.S. 

737 (1995). 

  

      
   



  

    
  

amici share the Shaw I Court’s aspiration for a nation in which 

race does not play a divisive role, amici fear that Shaw Iunfairly 

denies minority voters the opportunity to organize themselves 

as a community sharing actual interests in the real world of 

North Carolina politics. 

Whatever the wisdom of Shaw I, however, this case goes 

far beyond outlawing race as a permissible community of 

interest. This case casts doubt on the ability of North Carolina 

to draw district lines that recognize non-racial communities of 

interest, such as those linked by political affiliation, inner-city 

residence, and proximity to transportation corridors, solely 

because in today’s America those communities of interest often 

correlate with membership in a racial minority. 

The district court below summarily invalidated a non- 

majority-minority congressional district, ignoring and 

mischaracterizing sworn assertions that its shape and racial 

composition were traceable not to an overriding concern with 

race but to a desire to recognize political affiliation, inner city 

residence, and residence in close proximity to a highway as 

legitimate non-racial communities of interest warranting 

representation in Congress. If the district court’s decision is 

affirmed, minority voters will be doubly harmed. Not only will 

Shaw I deprive them of the ability to be linked by an immensely 

important community of interest — membership in a minority 

race — but, alone among American voters, they will be denied 

the ability to be linked by crucial non-racial communities of 

interest, merely because those interests often overlap with race. 

Surely, the Fourteenth and Fifteenth Amendments were not 

intended to create such a second-class political status. 

To avoid this unfair and unintended consequence, this Court 

should reaffirm that Shaw I imposes an extremely demanding 

burden on plaintiffs claiming that a state has segregated voters  



  

4 

on the basis of race in violation of the Equal Protection Clause. 

Plaintiffs in a Shaw I action cannot rest on evidence that race 

was one of several motivating factors in choosing district lines 
but instead must prove that race for its own sake was the state’s 

“dominant and controlling” rationale in drawing district lines 

before strict scrutiny will apply. See Point [.A. 

In Point I.B., amici suggest that Shaw I and its progeny do 

not provide adequate guidance to courts attempting to apply 

this standard and should therefore be reconsidered. But in the 

event that the Court adheres to Shaw I, amici propose an 

analytical framework that would allow courts to decipher the 

legislature’s predominant intent, while preserving Shaw I's 

demanding burden of proof. See Point I.C. 

Amici demonstrate in Point II that, under this framework, 

Plaintiffs could not carry their demanding burden. Plaintiffs’ 

evidence of District Twelve’s shape and racial composition was 

insufficient to establish even a prima facie case of liability. 

And even if Plaintiffs had raised an inference of impermissible 

racial intent, Defendants fully rebutted that inference with 

unchallenged proof that race was not the state’s predominant 

consideration. That unrebutted evidence shows that North 

Carolina drew district boundaries with the hope of providing 

representation for actual communities of interest defined by 

voting patterns, inner-city residence, and proximity to Interstate 

85. Inexplicably, the district court ignored or mischaracterized 

most of this evidence. See Point IL. A. 

Finally, as amici demonstrate in Point II.B., the district 

court erred in denying Defendants’ motion for summary 

judgment and in granting Plaintiffs’ motion for summary 

judgment. In so doing, the court effectively shifted the burden 

of persuasion to Defendants and transformed Shaw I’s intent 

    

  

 



  

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standard into a far less burdensome impact test. The Court should 

therefore reverse the decision below, or at the very least vacate 

and remand the case for fact-finding on the issue of intent and, if 

intent is proven, for application of strict scrutiny. 

ARGUMENT 

I. 

COURTS DECIDING SHAW CLAIMS MUST 

RECOGNIZE PLAINTIFFS’ UNUSUALLY 

“DEMANDING” EVIDENTIARY BURDEN. 

A. Claims of Unconstitutional Gerrymandering Under Shaw 

Require Proof That Race Was the “Dominant and 

Controlling” Consideration in Drawing District Lines. 

Plaintiffs in an action under Shaw I face an extremely 

“demanding” evidentiary burden. Miller v. Johnson, 515 U.S. 900, 

928 (1995) (O’Connor, J., concurring). They cannot trigger strict 

scrutiny merely by showing that a racially discriminatory purpose 

was one factor in government decision-making. Rather, plaintiffs 

must show that race, standing alone, was the State’s “dominant 

and controlling” consideration. Shaw v. Hunt, 517 U.S. 899, 905 

(1996) (“Shaw II) (citations omitted); see Miller, 515 U.S. at 916 

(plaintiffs must prove “race was the predominant factor . . . [by 

showing] that the legislature subordinated traditional race neutral 

districting principles, including but not limited to compactness, 

contiguity, respect for political subdivisions or communities 

defined by actual shared interests’); Bush v. Vera, 517 U.S. 952, 

959 (1996) (plurality opinion). 

Under this demanding standard, mere evidence of the racial 

impact of districting cannot sustain a Shaw I claim.® “In the rare 
    3. See Lawyer v. Department of Justice, 117 S. Ct. 2186, 2195 

(1997) (“[W]e have never suggested that the percentage of black residents 

(Cont’d)  



  

6 

case,” the effects of governmental action may be so 

overwhelming that the racial purpose of the action is clear. 

Miller, 515 U.S. at 913 (citing Gomillion v. Lightfoot, 364 U.S. 

339 (1960), and Yick Wo v. Hopkins, 118 U.S. 356 (1886)). But 

“[1]n the absence of a pattern as stark as those in Yick Wo or 

Gomillion, ‘impact alone is not determinative, and the Court 

must look to other evidence of race-based decisionmaking.’ ” 

Miller, 515 U.S. at 914 (quoting Arlington Heights v. 

Metropolitan Housing Dev. Corp., 429 U.S. 252, 266 (1977)). 

That evidence must command the conclusion that the legislature 

elevated race above all other considerations in drawing a 
challenged district’s lines.* 

B. Shaw Offers No Guidance to Courts Deciding Whether 

Plaintiffs Have Carried Their Burden. 

Legislatures drawing a district’s lines, and courts reviewing 

apportionment challenges under Shaw I, need a standard that 

clearly specifies when race may be legitimately considered. 

Unfortunately, Shaw I and its progeny create an unstable legal 

standard in a context that cries out for predictability. On the 

one hand, states are permitted to redistrict “with consciousness 
  

(Cont’d) 

in a district may not exceed the percentage of black residents in any of 

the counties from which the district is created, and have never recognized 

similar racial composition of different political districts as being 

necessary to avoid an inference of racial gerrymandering ...."”). 

4. In this regard, North Carolina’s awareness that its districting 

program would place a substantial black minority in District Twelve 

does not render the district constitutionally suspect. See Shaw II, 517 

U.S. at 905 (“[A] legislature may be conscious of the voters’ races 

without using race as a basis for assigning voters to districts.”); Miller, 

515 U.S. at 916 (“Redistricting legislatures will . .. almost always be 

aware of racial demographics; but it does not follow that race 

predominates in the redistricting process.”). 

  

  

  
  
 



  

  

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of race,” Vera, 517 U.S. at 958 (plurality opinion); Miller, 515 

U.S. at 916, and indeed must do so in order to avoid running 

afoul of the Voting Rights Act, see Vera, 517 U.S. at 991-92 

(O’Connor, J., concurring). On the other hand, race may not be 

“the predominant factor motivating the legislature’s decision.” 

Miller, 515 U.S. at 916. Legislatures are therefore left with no 

practical guidance as to where to draw the line between 

permissible and impermissible uses of race. 

For that reason alone, the Shaw line of cases should be 

reconsidered. The razor-thin distinctions between being aware 

of race, being motivated by race, and more importantly, being 
predominantly motivated by race, are so ephemeral that 

resolution of such questions may well be beyond the 

competence not only of legislatures but of courts. See Miller, 

515 U.S. at 916 (“The distinction between being aware of racial 

considerations and being motivated by them may be difficult 

to make.”). 

Shaw I, therefore, places both state legislatures and district 

courts in a quandary. Without concrete guidance as to how and 

when race may be considered, and faced with significant 

pressure both to consider race and not to consider race, states 

may be forced to cede their redistricting responsibilities to the 

unpredictable fact-finding procedures of the federal courts. But 

the Shaw cases offer the courts no better idea about how to 

distinguish unconstitutional districts. For this reason, amici urge 

the Court to reconsider the continued propriety of Shaw I. 

C. If the Court Declines to Reconsider Shaw, the Court 

Should Provide a Workable Framework for Shaw 

Actions That Preserves Plaintiffs’ Demanding 

Evidentiary Burden. 

Shaw I creates an unmanageable standard of liability, 

requiring a quixotic search for a “predominant” legislative  



  

motive that may pose insuperable practical problems for 

conscientious fact-finders. If this Court remains committed to 

Shaw I, however, the Court must provide district courts with 

precise guidance as to how to resolve the difficult factual 

question of whether race was the controlling factor in drawing 

district lines. Moreover, to ensure that district courts do not 

simply presume unconstitutionality when faced with districts 

they consider “oddly shaped” or “too black,” the framework 

this Court provides must preserve the demanding burden of 

proof imposed on Shaw I plaintiffs. 

To achieve these ends, the Court might consider the 

following framework: In the absence of direct evidence that 

the state was predominantly motivated by race, plaintiffs would 

be required to provide compelling circumstantial evidence that 

the challenged district both flunked a functional compactness 

test and seriously distorted racial demographics in order to raise 

an inference that race dominated the districting process. If 

plaintiffs provided such powerful circumstantial evidence, the 

production burden would then shift to defendants to offer 

legitimate nondiscriminatory reasons for district boundaries. 

Defendants’ production of sworn evidence that non-racial 

considerations dominated the districting process would shift 

the production burden back to plaintiffs. Whether plaintiffs were 

able to establish a prima facie case, or to rebut the state’s 

evidence would, therefore, be questions of law for the court, 

since they would be questions about satisfaction of the 

production burden. At all times, the ultimate and demanding 

burden of persuasion on the issue of predominant racial purpose 

would remain with plaintiffs. See Abrams v. Johnson, 117 S. 

Ct. 1925, 1931 (1997); Shaw II, 517 U.S. at 905. 

    

   



  

      

1. The Court Should Impose a Demanding Producti n 

Burden Before Allowing District Courts to Infer a 
Predominantly Racial Purpose From Circumstantial 

Evidence. 

For three reasons, courts should require Shaw I plaintiffs 

to meet a demanding production burden before inferring a 

predominantly racial purpose from merely circumstantial 

evidence. First, this Court has already held that plaintiffs face 

a demanding burden of persuasion in Shaw I actions. Plaintiffs 

should therefore face a significant burden of production before 

an inference of unconstitutionality may be raised. See Miller, 

515 U.S. at 916-17 (noting that plaintiffs’ “evidentiary difficulty 

... requires courts to exercise extraordinary caution” before 

allowing Shaw I claims to go forward). Second, repeated judicial 

interference in congressional districting wreaks havoc on state 

democratic processes. Judges should demand clear evidence 

of a Shaw I violation before allowing a State to be dragged into 

court. See id. at 916-17 (“[C]ourts must . . . recognize . . . the 

intrusive potential of judicial intervention into the legislative 

realm, when assessing . . . the adequacy of a plaintiff’s showing 

at the various stages of litigation and determining whether to 

permit discovery or trial to proceed.”). Third, “the presumption 

of good faith that must be accorded legislative enactments” 

weighs in favor of imposing a substantial burden of production. 

Id. at 916; see, e.g., Illinois v. Krull, 480 U.S. 340, 351 (1987) 

(legislatures are presumed to act in accord with the 

Constitution). 

In a Shaw I action, plaintiffs would carry their burden of 

production, and thereby raise an inference of racial 

gerrymandering, only if they satisfied two tests. First, plaintiffs 

would have to make a compelling showing that the challenged 

district failed a functional test for geographical compactness. 

Second, they would have to demonstrate that the racial  



  

10 

demographics of the district were seriously distorted by 

comparison with those of neighboring districts. The evidence 

would constitute a prima facie case under Shaw I if, left 

unrebutted, it would permit a reasonable fact-finder to conclude 

that the State completely subordinated race-neutral districting 

criteria to race. Whether the proffered evidence sufficed would 

be a question of law for the court. 

a. Plaintiffs Should Be Required to Present 

Compelling Evidence That a Challenged 

District Flunks a Functional Test for 

Geographical Compactness. 

As a threshold matter, Shaw I plaintiffs should be required 

to present compelling evidence that a challenged district fails 

a functional test for geographical compactness. Functional 

compactness is best understood as “ ‘the presence or absence 

of a sense of community made possible by open lines of access 

and communication.” ” DeWitt v. Wilson, 856 F. Supp. 1409, 

1413 (E.D. Cal. 1994) (quoting Wilson v. Eu, 823 P.2d 545, 

549 (Cal. 1992)), aff'd mem., 515 U.S. 1170 (1995); see Chen 

v. City of Houston, 1998 U.S. Dist. LEXIS 9860, *33, *36 (S.D. 

Tex. 1998) (same). A functional approach thus measures the 

geographical compactness of a district based on such relevant 
indicia as actual road travel-time across the district and the 

existence of open lines of access and communication — the 

things that actually foster communities of interest in a region 

and facilitate interaction between representatives and 
constituents. 

The functional test generally makes more sense in 

contemporary times than the traditional aesthetic and physical 

measures reflected in tests for “dispersion” and “perimeter” 

compactness. Measures of dispersion and perimeter 

compactness rest on the notion that the perfect district is 

    

  

  
 



  

11 

aesthetically pleasing and has “a regular, simple shape, usually 

a circle,” Richard H. Pildes & Richard G. Niemi, Expressive 

Harms, “Bizarre Districts,” and Voting Rights: Evaluating 

Election-District Appearances After Shaw v. Reno, 92 Mich. 

L. Rev. 483, 554 (1993), and that people who live in close 

physical proximity are likely to share interests worthy of 

common representation, see id. at 501 (“A principal aim of 

territorial districting is to facilitate the representation and 

interests of political communities. Compact districting is at best 

a proxy for this goal . ...”). When travel and communication 

over long distances were difficult, people who lived close to 

one another might well have been presumed to share common 

interests, and legislatures and courts might reasonably have 

assumed that the best way to ensure representation based on 

actual interests was to minimize physical distance between 

people in a single district. But in the modern world, “there 1s 

no necessary logical relation between [dispersion and perimeter] 

compactness” and the representation of shared interests. Bruce 

Cain, The Reapportionment Puzzle 43 (1984). Nor is there 

necessarily an empirical relationship between the two. See id. 

at 43-50; Steven A. Light, Too (Color)Blind to See: The Voting 

Rights Act of 1965 and the Rehnquist Court, 8 Geo. Mason U. 

Civ. Rts. L.J. 1, 34 (1997) (criticizing Miller for presuming 

that “physical proximity ... is a legitimate proxy for real 

communities of interest”).? 

Indeed, strict adherence to physical proximity can be an 

impediment to providing representation to genuine communities 

  

5. See also Prosser v. Elections Bd., 793 F. Supp. 859, 863 (1992) 

(per curiam) (recognizing imperfect correlation between “geographical 

propinquity and community of interests”); Stephen J. Malone, 

Recognizing Communities of Interest in a Legislative Apportionment 

Plan, 83 Va. L. Rev. 461, 475 (1997) (describing “imperfect nexus 

between geographically compact districts and communities of interest”).  



  

12 

of interest “because there are real-life situations in which one 

does not have to travel very far ... before encountering 

[differences in] attitudes.” Cain, supra, at 39; see Prosser v. 

Elections Bd., 793 F. Supp. 859, 863 (1992) (per curiam). The 

world 1s getting smaller, and communities of interest may 

legitimately cross street blocks, neighborhoods, and cities in 

ways that would have been unthinkable just decades ago. 

[T]he focus on geographic proximity in districting 

developed in a time when communities were smaller 

and transportation was more difficult. The concept 

of geographical coherence may be far less relevant 

in defining primary communities of interest in 

today’s society. The census demographic data reveal 

a highly fluid society in which changes of residence 

are far from unexpected, and in which the growth 

of “exurbs” — defined by proximity to the highway 

networks — have replaced any pre-existing sense 

of geographic coherence. 

T. Alexander Aleinikoff & Samuel Issacharoff, Race and 

Redistricting: Drawing Constitutional Lines after Shaw v. 

Reno, 92 Mich. L. Rev. 588, 637 (1993) (internal quotation 

marks omitted); Paul A. Jargowsky, Metropolitan Restructuring 

and Urban Policy, 8 Stan. L. & Pol’y Rev. 47, 48 (1997) 

(discussing decentralization of urban areas facilitated by “high- 
speed, high-volume networked communications”). 

In addition, the presumed correlation between physical 

proximity of district residents and ease of access to legislators, 

see Prosser, 793 F. Supp. at 863 (“Compactness and contiguity 

. .. reduce travel time and costs, and therefore make it easier 

for candidates. . . to campaign. . . and once elected to maintain 

close and continuing contact with the people they represent.”), 

may have been valid in the past, but there are fewer reasons to 

have faith in the connection now. 

    

 



  

13 

The popular concern for compactness ... is the 

legacy of earlier periods in history when 

communications and transportation were difficult. 

Compactness guaranteed that representatives could 

meet with their constituents with relative ease. . . . 

This consideration is not as relevant as it once was. 

Travel over large and sprawling areas is no longer a 

formidable task. 

Cain, supra, at 32; see Daniel H. Lowenstein & Jonathan 

Steinberg, The Quest for Legislative Districting in the Public 

Interest: Elusive or Illusory?,33 U.C.L.A.L. Rev. 1,22 (1985). 

In sum, courts deciding whether Shaw I plaintiffs have 

produced compelling evidence that a district is not 

geographically compact should rely on functional measures 

rather than on aesthetic or physical criteria.’ In today’s world, 

functional measures do the job that shape was supposed to do 

—only they do it better. Plaintiffs therefore should not be able 

to raise an inference of purposeful discrimination with nothing 

more than evidence of a district’s irregular shape. A prima facie 

Shaw I case should require proof that a challenged district fails 

a functional test for compactness.’ 

  

6. States are not constitutionally required to draw districts that are 

aesthetically pleasing. See Vera, 517 U.S. at 962 (plurality opinion); 

Shaw 1, 509 U.S. at 645-46. 

7. See Bernard Grofman, Criteria for Districting: A Social Science 

Perspective, 33 U.C.L.A. L. Rev. 77, 89 (1985) (“[T]he usefulness of 

requiring that districts be compact has been vastly overrated.”); Cain, 

supra, at 148 (distorted shapes do not necessarily indicate 

gerrymandering and “the observer has to look closely to see what the 

intent was”).  



  

14 

b. Plaintiffs Should Also Be Required to Present 

Compelling Evidence That a Challenged 

District Seriously Distorts the Region’s Racial 
Demographics. 

In addition to providing compelling evidence that a district 

is not functionally compact, a plaintiff seeking to raise a Shaw 

I claim solely on the basis of circumstantial evidence should 

be required to prove that a challenged district seriously distorts 

the racial demographics of the region. Where, as here, the 

challenged district is not majority-minority, that burden should 

be all the more difficult to meet. Indeed, the fact that a 

congressional district is not majority-minority might well 

support a presumption that race did not dominate legislative 

decision-making. Plaintiffs who could not overcome such a 

presumption would not establish a prima facie case under the 

framework proposed here. 

2. If Plaintiffs Satisfy Their Production Burden, 

Defendants Must Produce Evidence That Race Was 

Not the Predominant Motive, with Plaintiffs 

Retaining the Ultimate Burden of Proving 

Unconstitutionality. 

If plaintiffs were able to meet the difficult burden of raising 

an inference of Shaw I liability, the state would be required to 

proffer race-neutral reasons for the district’s lines. The universe 

of legitimate rationales is quite large and includes 

“compactness, contiguity, respect for political subdivisions or 

communities defined by actual shared interests.” Miller, 515 

U.S. at 916. Producing such evidence would be sufficient to 

rebut the inference of unconstitutionality established by 

plaintiffs’ evidence and shift the production burden back to 

plaintiffs. With plaintiffs’ and defendants’ positions so framed, 

plaintiffs would then attempt to meet their demanding burden 

    

 



  

13 

of proving that racial considerations dominated the districting 

process. 

3. When Plaintiffs Cannot Carry Their Burden of 

Proof, Courts Should Defer to the Legislature’s 

Line-Drawing Judgments. 

If Plaintiffs cannot meet the difficult burden of proving 

that race was the predominant legislative motive under the 

framework recommended here, the judiciary must defer to North 

Carolina’s judgments about how best to structure its democracy. 

A state’s ultimate goal in legislative apportionment is to provide 

effective political representation of the interests of its citizens. 

In doing so, a state necessarily makes difficult and contested 

political judgments as to what interests should be represented 

in Congress, and how.® For this reason, “[e]lectoral districting 

is a most difficult subject for legislatures, and . .. the States 

must have discretion to exercise the political judgment 

necessary to balance competing interests.” Miller, 515 U.S. at 

915; see Davis v. Bandemer, 478 U.S. 109, 147 (1986) 

(O’Connor, J., concurring) (“Federal courts will have no 

alternative but to attempt to recreate the complex process of 

legislative apportionment in the context of adversary litigation 

in order to reconcile the competing claims of political, religious, 
  

8. The question of how best to represent the interests of citizens is 

the subject of considerable and reasonable debate. See, e.g., Keith J. 

Bybee, Mistaken Identity: The Supreme Court and the Politics of 

Minority Representation 36-50 (1998); Malone, supra, at 475-92; Hanna 

Fenichel Pitkin, The Concept of Representation (1967). Thus, members 

of this Court have criticized judicial interference in matters of legislative 

apportionment on the ground that it requires courts to make theoretical 

judgments concerning the nature of political representation — judgments 

that courts are often ill-equipped to make. See, e.g., Holder v. Hall, 512 

U.S. 874, 891-903 (1994) (Thomas, J., concurring); Reynolds v. Sims, 

377 U.S. 533, 589 (1964) (Harlan, J., dissenting); Wesberry v. Sanders, 

376 U.S. 1, 30 (1964) (Harlan, J., dissenting).  



  

16 

ethnic, racial, occupational, and socioeconomic groups.”); 

Lowenstein & Steinberg, supra, at 26-38, 73-75 (congressional 

districting is inherently political and should be free from 

excessive judicial interference).’ 

Moreover, judicial interference seems especially 

inappropriate where, as here, the majority “attempt[s] to enable 

the minority to participate more effectively in the process of 

democratic government,” Shaw II, 517 U.S. at 918 (Stevens, 

J., dissenting), rather than to exclude minorities from 

democratic participation. In these cases, there is little reason 

to believe that democratic processes are being 

unconstitutionally subverted and thus no need for courts to enter 

the “political thicket” of legislative apportionment. Colegrove 

v. Green, 328 U.S. 549, 556 (1946). 

IL. 

THE DISTRICT COURT IMPROPERLY RELIEVED 

PLAINTIFFS OF THEIR DEMANDING BURDEN 

OF PROOF. 

Within the framework recommended here, Plaintiffs failed 

to make even a prima facie showing that race was the 
  

9. Of course, federal law limits the States’ districting authority in 

important ways. See, e.g., Davis, 478 U.S. at 113 (holding that claims 

of partisan gerrymandering are justiciable); Thornburg v. Gingles, 478 

U.S. 30 (1986) (prohibiting vote dilution); Baker v. Carr, 369 U.S. 186 

(1962) (requiring equality of district population); Gomillion, 364 U.S. 

at 341 (prohibiting redrawing district lines to intentionally deprive 

citizens of right to vote on basis of race). But these rules leave the states 

with considerable leeway. For example, even after application of the 

“one person one vote” principle, hundreds of districting options remain 

available to the states. See Robert G. Dixon, Jr., Fair Criteria and 

Procedures for Establishing Legislative Districts, in Representation and 

Redistricting Issues 7-8 (Bernard Grofman et al. eds., 1982).   
   



  

17 

predominant factor motivating the State’s districting decision. 

Moreover, even assuming that their weak evidence raised an 

inference of unconstitutionality, North Carolina fully countered 

that inference with unchallenged evidence that non-racial 

motives dominated the State’s districting process. Given the 

unrebutted evidence of dominant non-racial motives, the district 

court should have awarded summary judgment to Defendants. 

The district court thus clearly erred in granting summary 

judgment to Plaintiffs. 

A. Applying the Appropriate Framework, Plaintiffs Failed 

to Meet Their Substantial Burden of Demonstrating 

That Race Was North Carolina’s Predominant Purpose 

in Redistricting. 

1. Plaintiffs’ Circumstantial Evidence Failed Even to 

Raise an Inference of Discriminatory Purpose. 

In granting summary judgment to Plaintiffs, the district 

court improperly relied on weak circumstantial evidence of 

insufficient geographic compactness and distorted 

demographics. Looking first to demographics, the court found 

that District Twelve, which is composed of parts of six split 

counties, received “almost 75 percent” of its population from 

“three county parts which are a majority African-American in 

population,” while “the other three county parts . . . have narrow 

corridors which pick up as many African-Americans as are 

needed for the district to reach its ideal size.” Cromartie v. 

Hunt, No. 4:96-CV-104-BO (3) (E.D.N.C. April 14, 1998), 

Appendix to Jurisdictional Statement (“Appendix”) at 6a-7a. 

The court further found that “the four largest cities assigned to 

District 12 are split along racial lines.” Id. at 7a. Moving onto 

compactness, the district court found that “District 12 has an 

irregular shape,” id. at 9a, that the district’s dispersion and 

perimeter compactness measures “are much lower than the mean  



  

18 

compactness indicators for North Carolina[],” id. at 11a, and 

that “it 1s still the most geographically, (sic) scattered of North 

Carolina’s congressional districts,” id. at 20a. Also, the count 

found that the district was “barely contiguous in parts.” Id. at 

9a. Thus the court concluded, on the basis of what it termed 

the undisputed evidence, that District Twelve, like its 

predecessor, was “unusually shaped . . . wind[ing] its way from 

Charlotte to Greensboro along the Interstate-85 corridor, 

making detours to pick up heavily African-American parts of 
[other] cities.” Id. at 19a. 

This evidence was plainly insufficient to raise an inference 

that race was the General Assembly’s predominant motivating 

factor. First of all, District Twelve is a majority-white district: 

just 46.67% of its total population and 43.36% of its voting 

age population is black. Surely, if North Carolina was hell- 

bent on subordinating all other factors to race, it would not 

have drawn district lines that so reduced the probability of 

electing a black representative. But even if the Court does not 

believe that District Twelve’s majority-white population is 

dispositive of the issue of the General Assembly’s predominant 

purpose, 

the fact that all of North Carolina’s congressional 

districts [have a] majority-white [voting-age 

population] at the very least makes the plaintiffs’ 

burden, which is already quite high, even more 

onerous. 

Id. at 31a (Ervin, J., dissenting); see Lawyer, 117 S. Ct. at 2195. 

Second, District Twelve is “not so bizarre or unusual in 

shape” as to raise an inference of racial gerrymandering. 

Cromartie, Appendix at 25a (Ervin, J., dissenting). District 

    

  

  

 



  

  

  

19 

Twelve 1s among the most functionally compact in North 

Carolina. It has the third shortest travel time and distance 

between its farthest points of any district in North Carolina. 

See Affidavit of Dr. Alfred W. Stuart, Appendix at 105a. Also, 

Interstate-85 forms a major artery of access and communication 

through the district. And although District Twelve does not 

score well on tests of dispersion and perimeter compactness, it 

is fully contiguous and is significantly more compact based on 

these measures than its predecessor. See “An Evaluation of 

North Carolina’s 1998 Congressional District” by Professor 

Gerald R. Webster (“Webster Report”), Appendix at 127a, 133a. 

Thus, Plaintiffs’ circumstantial evidence of racial 

demographics and geographical compactness was insufficient 

to justify an inference that North Carolina had used race as the 

predominant factor in drawing district lines. Moreover, as is 

shown below, any inference of impermissible racial 

gerrymandering raised by this record was fully rebutted by 

Defendants’ evidence. 

2. Defendants Fully Rebutted Any Inference That Race 

Was the Predominant Factor in the Districting 

Process. 

Even assuming, arguendo, that Plaintiffs’ circumstantial 

evidence was sufficient to raise an inference of 

unconstitutionality, Defendants fully rebutted that inference 

with unchallenged proof that race was not the predominant 

consideration in the drawing of District Twelve’s boundaries. 

Inexplicably, the bulk of this evidence was completely ignored 

by the district court. The Chairmen of both the State House of 

Representatives’ Redistricting Committee and the State 

Senate’s Redistricting Committee submitted affidavits 

affirming that ensuring a particular racial balance was not the 

General Assembly’s primary motivation in drawing District  



  

20 

Twelve. See Affidavit of Senator Roy A. Cooper, III (“Cooper 

Affidavit”), Appendix at 70a-78a; Affidavit of Representative 

W. Edwin McMahan (“McMahan Affidavit”), Appendix at 79a- 

84a. Similarly, North Carolina’s submission to the Department 

of Justice pursuant to section 5 of the Voting Rights Act 
indicated that the “General Assembly’s primary goal in 

redrawing the plan was to remedy the constitutional defects of 

the former plan,” that is, to ensure that race was not the 

predominant factor. See Affidavit of Gary O. Bartlett, 

1 97C-27N of the Section 5 Submission Commentary (“Bartlett 

Affidavit”), Appendix at 63a. According to its submission, the 

General Assembly declined to create a majority-minority 

Twelfth District because to do so “would artificially group 

together citizens with disparate and diverging economic, social 

and cultural interests and needs” and would thereby make “race 

... the predominant factor.” Id. at 66a. Plaintiffs offered no 

contrary direct evidence of Defendants’ motivations. 

In addition, the Defendants offered extensive evidence that 

the North Carolina General Assembly created District Twelve 

in order to provide representation to communities of actual 

shared interests. See Bartlett Affidavit, Appendix at 64a; 

Webster Report, Appendix at 1 (noting “desire to include a 

requisite number of people with similar social, economic or 

political orientations” in a single district). States may 

legitimately consider communities of interests when drawing 

congressional districts, see Shaw II, 517 U.S. at 907; Miller, 

515 U.S. at 919, and North Carolina’s reliance on these criteria 

easily explain District Twelve’s shape and demographics. 
  

10. A district providing representation for actual communities of 

interest will not necessarily be physically compact. See supra Point 

I.C.1.a. In addition, a district’s discernible racial character will often be 

caused by the demonstrated correlations between race and actual 

communities of interest. See Vera, 517 U.S. at 964 (plurality opinion) 

(Cont’d) 

    

 



  

21 

North Carolina explicitly identified three communities of 

interest that readily explain the shape and racial composition 

of District Twelve. First, in order to maintain the House 

delegation’s six-six partisan balance, the General Assembly 

included precincts in District Twelve that had supported 
democratic candidates in recent elections. See Bartlett Affidavit, 

Appendix at 64a. Maintaining such a balance was necessary to 

ensure compromise between the Republican-controlled State 

House of Representatives and the Democrat-controlled State 

Senate, and this in turn required placing District Twelve’s 

Democratic incumbent (as well as the other eleven incumbents) 

in “safe” districts. See Cooper Affidavit, Appendix at 71a-75a, 

77a; McMahan Affidavit, Appendix at 81a-83a; Affidavit of 

David Peterson, Ph.D., Appendix, at 85a-100a. District 

Twelve’s large black population is thus the result of the voting 

patterns of black North Carolinians, who overwhelming support 

Democratic candidates. See Michael Barone & Grant Ujifusa, 

The Almanac of American Politics 1998, 1052 (1998). 

Though the district court at least acknowledged this 

evidence, it failed to credit it, relying instead on anecdotal 

evidence that “the legislators excluded many heavily- 

Democratic precincts from District 12, even though those 

precincts immediately border the District.” Cromartie, 
  

(Cont’d) 

(“[R]ace [often] correlates strongly with manifestations of community 

of interest ....”); Abrams, 117 S. Ct. at 1947 (Breyer, J., dissenting) 

(noting that rural and urban minorities living near one another may share 

common interests). In this regard, it is imperative that courts recognize 

that when a group of minority citizens organizes itself and lobbies a 

state legislature for representation in Congress, the legislature’s assent 

to that lobbying is properly ascribed to political, rather than racial, 

motivations. It would be a travesty of the Equal Protection Clause (and 

the First Amendment) for this Court to prevent racial minorities from 

organizing and advocating for themselves in the political arena when 

every other self-defined interest group is permitted to do so.  



  

22 

Appendix at 20a. From this, the court inferred that politics was 

simply a pretext for race. However, as Judge Ervin noted in 

dissent: 

This evidence does not take into account .. . that 

voters often do not vote in accordance with their 

registered party affiliation. The State has argued, 

and I see no reason to discredit their uncontroverted 

assertions, that the district lines were drawn based 

on votes for Democratic candidates in actual 

elections, rather than the number of registered 

voters. 

Id. at 33a (Ervin, J., dissenting); Cooper Affidavit, Appendix 
at 73a (“election results [from 1990-1996] were the principal 

factor”). The decision to rely on voting rather than registration 

was perfectly legitimate, see Vera, 517 U.S. at 968 (plurality 

opinion), particularly given the documented history of white 

registered North Carolina Democrats voting Republican to 

avoid electing black candidates. See Gingles v. Edmisten, 590 

F. Supp. 345, 367-72 (E.D.N.C. 1984), aff'd in part and rev'd 

in part sub nom., Thornburg v. Gingles, 478 U.S. 30 (1986). 

By rejecting Defendants’ evidence, the district court therefore 

improperly substituted its judgment for that of the legislature 

as to the appropriate criterion of partisanship. 

Second, the district court completely ignored Defendants’ 

evidence that the General Assembly sought to provide 

representation to inner-city residents. District Twelve is “a 

functionally compact, highly urban district drawing together 

citizens in Charlotte and the cities of the Piedmont Urban 

Triad.” Cooper Affidavit, Appendix at 74a; see Cromartie, 

Appendix at 36a-37a (Ervin, J., dissenting) (“I do not see how 

anyone can argue that the citizens of, for example, the inner- 

city of Charlotte do not have more in common with citizens of 

    
 



  

23 

the inner-cities of Statesville and Winston-Salem than with their 

fellow Mecklenburg county citizens who happen to reside in 

the suburban or rural areas.”). A State may reasonably seek to 

provide effective representation to inner-city urban 

communities. See Lawyer, 117 S. Ct. at 2195; Vera, 517 U.S. 
at 966 (plurality opinion). 

Third, the district court failed to consider evidence that 

North Carolina sought to join in one district the very real 

community of interests formed by localities abutting Interstate 

85, a major line of communication, transportation, and 

commerce for the culturally distinct Charlotte/Piedmont triad 

region. In North Carolina, as in other states, residence in 

proximity to a major transportation artery links people into 

natural voting constituencies. See Cromartie, Appendix at 36a 

(Ervin, J., dissenting) (“District 12 also was designed to join a 

clearly defined ‘community of interest’ that has sprung up 

among the inner-cities and along the more urban areas abutting 

the interstate highways that are the backbone of the district.”); 

Webster Report, Appendix at 124a (recognizing appropriateness 

of “focus[ing] . . . upon major transportation corridors such as 
freeways”); Vera, 517 U.S. at 966 (plurality opinion) (noting 

that “transportation lines . . . implicate traditional districting’ 

principles”). Furthermore, by focusing the district on Interstate 

835, the General Assembly fostered ease of access to legislators. 

See Affidavit of Dr. Alfred W. Stuart, Appendix at 105a; 

Webster Report, Appendix at 125a. 

Indeed, this Court in Abrams, 117 S. Ct. at 1941, aff’g, 

Johnson v. Miller, 922 F. Supp. 1556 (S.D. Ga. 1995), approved 

the court-drawn Eleventh Congressional District in Georgia, 

which the lower court had described as “a relatively compact 

grouping of counties which follow a suburban to rural 

progression and have Interstate Eighty-Five as a very real 

connecting cable.” Johnson, 922 F. Supp. at 1564. Thus, this  



  

24 

Court has previously recognized the legitimate role that 

Interstate 85 can play in creating communities of interest worthy 

of representation. If Interstate 85 forms a legitimate locus for 

the 11.79% black Eleventh District in Georgia, then North 

Carolina may legitimately determine that the same highway 

plays a similar role in North Carolina’s Twelfth District. 

Defendants’ non-racial explanations therefore fully rebutted 

whatever inference of discrimination may have been raised by 

Plaintiffs’ weak circumstantial evidence of District Twelve’s 

shape and racial demographics. 

B. The District Court Relieved Plaintiffs of Their Difficult 

Burden of Proof By Relying on Impact, Rather Than 

Intent, to Find a Constitutional Violation. 

Given the weakness of Plaintiffs’ circumstantial showing 

and the overwhelming strength of Defendants’ rebuttal, the 

district court erred in failing to grant summary judgment to 

Defendants and in granting summary judgment to Plaintiffs. 

The district court effectively erected a conclusive presumption 

of purposeful discrimination on the basis of flimsy, completely 

rebutted circumstantial evidence. For all practical purposes, 

the district court shifted the burden of proof from Plaintiffs to 

Defendants and improperly created an impact test for Shaw 

cases brought by white voters. But see, e.g., Gomillion, 364 

U.S. at 341 (representing the rare case where the effects of 

governmental action were so overwhelming that the racial 

purpose of the action was clear). 

Once the proper burden of proof rules are applied, however, 

it 1s clear that the district court erred in failing to grant 

Defendants’ motion for summary judgment. Defendants are 

entitled to summary judgment as a matter of law where, as here, 

plaintiffs make an insufficient showing on an essential element 

of their case as to which they bear the burden of proof. See 

—
 

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25 

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (19 
opposing a summary judgment motion, plaintiffs may notes 
on the pleadings, but must indicate, by affidavits or otherwise, 

“specific facts showing that there is a genuine issue for trial.” 

Fed. R. Civ. P. 56(¢); see Celotex, 477 U.S. at 324; Anderson 

v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Moreover, 

plaintiffs may not simply assert the existence of a factual 

dispute. “If the evidence is merely colorable, or is not 

significantly probative,” summary judgment is appropriate. 

Anderson, 477 U.S. at 249-50 (internal citations omitted). 

Furthermore, in considering the sufficiency of plaintiffs’ 

showing, the court “must view the evidence presented through 

the prism of the substantive evidentiary burden.” Id. at 254. To 

successfully oppose a summary judgment motion, plaintiffs who 

bear a heightened burden of proof at trial must present sufficient 

evidence to allow a trier of fact to find in their favor under the 

heightened standard. See id. at 252-53; Miller, 515 U.S. at 916 

(noting that in Shaw I actions, courts are directed to consider 

heightened burden “when assessing ... the adequacy of a 

plaintiff’s showing at the various stages of litigation and 

determining whether to permit discovery or trial to proceed”) 

(citing Celotex, 477 U.S. at 327). 

Applying these standards, Defendants were plainly entitled 

to a grant of summary judgment. See Cromartie, Appendix at 

43a (Ervin, J., dissenting). Plaintiffs failed to offer specific and 

significantly probative evidence sufficient to create a genuine 

issue of fact as to whether racial considerations dominated the 

General Assembly’s districting decisions to the exclusion of 

other factors. See Crawford-el v. Britton, 118 S. Ct. 1584, 1598 

(1998) (“[P]laintiff may not respond [to defendant’s summary 

judgment motion] simply with general attacks upon the 

defendant’s credibility, but rather must identify affirmative 

evidence from which a jury could find that the plaintiff has  



  

26 

carried his or her burden of proving the pertinent motive.”); 

10B Wright, Miller & Kane, Federal Practice & Procedure: 

Civil 3d § 2730, at 40-42 (1998) (same). Unlike in every 

previous case striking down a challenged district under Shaw 

I, Plaintiffs offered, and could offer, no direct evidence that 

race dominated any legislator’s considerations, much less the 

considerations of the General Assembly as a whole. In contrast, 

Defendants offered extensive direct evidence that traditional 

districting criteria were not subordinated to race. In the face of 

Defendants’ unrebutted evidence, Plaintiffs’ circumstantial 

evidence simply could not create a genuine issue of fact as to 

legislative purpose and therefore could not defeat Defendants’ 

motion for summary judgment. See Miller, 515 U.S. at 914 

(evidence of discriminatory impact usually insufficient to 

demonstrate discriminatory purpose, requiring courts to look 

to other evidence); 10A Wright, Miller, & Kane, supra, § 2727, 

at 470-71, 486-88, 501. 

Incredibly, the district court not only failed to award 

summary judgment to Defendants, it granted Plaintiffs’ 

summary judgment motion. This was manifest error for two 

reasons. First, the district court applied an improper standard 

for considering evidence on a motion for summary judgment. 

“The evidence of the non-movant is to be believed, and all 

justifiable inferences are to be drawn in his favor.” Anderson, 

477 U.S. at 255; accord Eastman Kodak Co. v. Image Tech. 

Servs., Inc., 504 U.S. 451, 456 (1992). Although Defendants 

offered extensive evidence conclusively demonstrating that race 

was not the predominant consideration, the district court ignored 

most of that evidence. And what evidence the district court did 

consider, it mischaracterized. See supra Point I1.A.2. 

Second, the district court improperly granted summary 

judgment to the Plaintiffs on the question of North Carolina’s 

motivations in drawing its congressional districts. In light of 

    
 



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27 

the sworn statements of the Chairmen of the House and Senate 

Redistricting Committees that race was simply one of many 

factors guiding the drawing of District Twelve, and given that 

Plaintiffs offered no direct evidence to the contrary, the court 

could not legitimately have determined, as a matter of law, that 

Plaintiffs had conclusively demonstrated that the General 

Assembly acted with an impermissible purpose. See White 

Motor Co. v. United States, 372 U.S. 253, 259 (1963) (court 

should be wary of granting summary judgment where 

dispositive issue requires assessment of state of mind); Johnson 

v. Meltzer, 134 F.3d 1393, 1397-98 (9th Cir. 1998) (same). At 

a minimum, this Court should remand the case for fact-finding 

as to whether race was, indeed, the legislature’s predominant 

concern. See Crawford-el, 118 S. Ct. at 1597 (credibility 

assessments are not amenable to resolution on summary 

judgment); Agosto v. INS, 436 U.S. 748, 756 (1978) (“[A] 

district court generally cannot grant summary judgment based 

on its assessment of the credibility of the evidence presented.”). 

By awarding summary judgment to Plaintiffs on the basis 

of the district’s shape and racial demographics despite extensive 

evidence that its shape and demographics could be explained 

through North Carolina’s application of traditional, race-neutral 

districting factors, the district court effectively held that 

Shaw I plaintiffs could raise a conclusive presumption of 

predominant racial purpose solely on the basis of circumstantial 

evidence. In effect, the district court’s decision, if permitted to 

stand, would premise government liability on the basis of 

perceived “discriminatory impact,” at least for white plaintiffs 

challenging “too black” districts. The court’s ruling was 

contrary to long-established principles of constitutional law and 

must be reversed.