Appellee-Intervenors' Motion to Affirm or Dismiss with Notes
Working File
November 30, 1998
23 pages
Cite this item
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Case Files, Cromartie Hardbacks. Correspondence from Carraway to Neyhart; Joint Appendix Corrections to Weber Testimony Excerpts, 2000. efd7b8b2-da0e-f011-9989-002248226c06. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/2e4a5446-0071-4fe5-9bee-b7eb8c962c8e/correspondence-from-carraway-to-neyhart-joint-appendix-corrections-to-weber-testimony-excerpts. Accessed August 19, 2025.
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State of North Carolina
MICHAEL F. EASLEY Department of Justice
ATTORNEY GENERAL. P.O BOX 629 REPLY TO: Fran Carraway, CLAS
RALEIGH Special Litigation
27602-0629 (919) 716-6900
Fax: (919) 716-6763
TELECOPIER TRANSMITTAL SHEET
TO: Seth Neyhart
FROM: Fran Carraway
TELEPHONE NUMBER: (919) 716-6900
DATE: August 2, 2000
SUBJECT: Cromartie Joint Appendix Corrections
NUMBER OF PAGES INCLUDING TRANSMITTAL SHEET:
CONFIRM RECEIPT OF DOCUMENTY(S) IF MARKED HERE:
COMMENTS:
Seth,
We received your fax this afternoon. Fran had to leave the office early for an appointment. She had
prepared this packet for you in advance. 1 know that she will address the concerns you mentioned
tOmOITOW TNOrnIng.
Christie Ford
CONFIDENTIALITY NOTE
THE INFORMATION CONTAINED IN THIS FACSIMILE MESSAGE IS LEGALLY
PRIVILEGED AND CONFIDENTIAL INFORMATION INTENDED ONLY FOR THE USE
OF THE INDIVIDUAL OR ENTITY NAMED ABOVE. IF THE READER OF THIS
MESSAGE IS NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT
ANY DISSEMINATION, DISTRIBUTION OR COPY OF THIS TELECOPY IS STRICTLY
PROHIBITED. IF YOU HAVE RECEIVED THIS TELECOPY IN ERROR, PLEASE
IMMEDIATELY NOTIFY US BY TELEPHONE AND RETURN THE ORIGINAL MESSAGE
TO USAT THE ADDRESS ABOVE VIA UNITED STAT. ESPOSTALSERVICE. THANK YOU.
&
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State of North Carolina
MICHAEL F. EASLEY Department of Justice
ATTORNEY RENAL P.O. BOX 629 REPLY TO: Frances S. Carraway, CLAS
RALEIGH Special Litigation
27602-0629 (919) 7166900
FAX (919) 716-6763
August 2, 2000
Seth Neyhart By FAX and FED EX
Robinson O. Everett
Post Office Box 586 (Self-Help Building)
Durham, NC 27702
Douglas E. Markham By FAX ONLY
333 Clay, Suite 4510
Post Office Box 130923
Houston, TX 77219-0923
Martin B. McGee By FAX ONLY
Wiliams, Boger, Grady, Davis & Tuttle, P.A.
Post Office Box 2
Kannapolis, NC 28082
Re: Joint Appendix in Hunt v. Cromartie
Dear Seth:
Included in this, hopefully final, federal express package are the corrections you noted
with the exception of those edits you made on the Shaw docurnents which are, unfortunately the
way they were filed. With these documents as with all others, we are not making corrections
to in the original or noting errors in it with [sic]. The following documents are for your initial
review.
DOCUMENTS SENT 8/2
Weber's Trial Testimony
Wher’s Deposition excerpts
Weber’s Report with Tables
Gerry Cohen’s Shaw Trial Testimony
0;
GO
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Seth Neyhart
August 1, 2000
Page 2
As indicated yesterday in my letter to you, I need any additional designations to the
documents you received today via federal expressand to Weber's deposition and trial testimony
by noon tomorrow. We will need any additional designations from Weber's report by noon,
Friday, August 3. Any edits on these documents will need to be in our hands by noon on
Monday, August 7".
Again I request that you fax to us any edits you think necessary as you discover them,
especially if they might affect pagination. That will allow us to have a more accurate page
count when we begin to label maps on Friday. Any adjustments to disputed dest gnations will
be made once those disputes are resolved.
As always, call if you have any questions with which you feel I can help.
Sincerely,
<< Lr
Frances S. Carraway, CLAS
Todd Cox (by fed ex)
Adam Stein (by fax)
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TRIAL TESTIMONY EXCERPTS OF DR. RONALD E. WEBER
* xX
[¥143] Mr. Markham: Our next witness is Dr. Ron Weber.
Ronald E. Weber, being first duly sworn, testified as follows
during Direct Examination:
By Mr. Markham:
[¥144] Q. Dr. Weber, state your full name for the record,
please.
A. Ronald E. Weber.
Q. And can you identify for us Exhibit 48 in the deposition
exhibits?
A. Yes, that's Exhibit A to my declaration, which includes
my curriculum vitae.
Q. That's a reasonably current listing of your consulting
and writings and otber educational data with respect to your
service in political science?
Yes, sir.
Where do you teach today?
Teach at the University of Wisconsin, Milwaukee.
What subject?
Political science, particularly state politics, political o
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behavior and methodology.
Q In the course of your -- over the last several years, have
you had an opportunity to evaluate a number of redistricting
plans in the context of Shaw lawsuits?
A. Yes, sir.
Q. And can you tell us in which cases you have offered
opinions and done analysis with respect 10 issues regarding
whether a significant number of persons were placed inside or
outside of the district on the basis of race?
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[*145] A. Yes, sir. | was an expert in Hayes versus State
of Louisiana in Louisiana, of course. In Vera versus Richards
in Texas. Miller versus Johnson in Georgia. Expert by
deposition here in North Carolina in Shaw versus Hunt. Expert
in legislative case in Texas, Thomas versus Bush. Expert in
Johnson versus Mortimer, District of Florida challenging the
Third District. Moon versus Meadows in Virginia. Chen
versus City of Houston, local city counsel case in Houston. I
think that enumerates the cases.
Q. In addition to those cases, have you also consulted and
given advice as well as testimony regarding Section 2 and
Section 5 issues for government's and groups?
A. Government's and groups, yes.
Q. Can you identify Exhibit 49 for us?
A. Yes. Exhibit 49 is an exhibit that I prepared routinely
to do with my reports or declarations in which I list all the
cases in which I have been deposed or served as a trial expert.
Q. And can you identify for us Exhibit 477?
A. Exhibit 47 is my declaration of September 10, 1999, for
this case.
Q. I want to go through with you a number of the tables
that are presented in that declaration. The First Table is located
at page 13 and 14 with regard to split [*146] counties. Can you
tell us what value or assistance that table offers to the Court in
evaluating issues that relate to this case?
A. That simply enumerates for the challenged plan each of
the counties by district that are split on the basis of population
and so what this indicates, for example, is that there are on page
13, there are a total of, I believe, ten counties in the First
District that are split. Going all the way through on page 14 a
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total of six out of six counties in District 12 are split.
Q. Table Two appears at page 19 of that report. What
information does that table provide to assist the Court with
issues that relate to this case?
A. This table, Table Two, includes the same information
as in Table One, but this time it is arranged by counties. So an
array can see for any particular county the racial differences
between the portion assigned to one district and to another
district.
For example, if we look down the table at Forsyth
County, the portion that is assigned to the 5th District is only
11.1 percent African American whereas the apportion assigned
to the 12th District is 72.9 percent African American. So
clearly states the differences between the racial, the
composition of the two districts as the county has been split
and that goes throughout the [*147] table, whether it's a split
involving the 1st or 12th District or the six counties that are
neither involved in the First or 12th District.
Q. I'd like to draw your attention to Defendant's Exhibit
435. -- I'm sorry. I misspoke, 433.
Can you tell us what information that exhibit presents?
A. I understand that Exhibit 433 has been prepared by, I
believe, Dr. Peterson for the defendants and it's an attempt to
do --.
Ms. Smiley: I object, Your Honor. This is defendant's
exhibit and this witness is saying what he thinks it is and what
it's attempting to show.
Judge Thornburg: Sustained. I'll let him tell what it
shows to him but not what he thinks about Dr. Peterson's work.
Ms. Smiley: Thank you, Your Honor.
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By Mr. Markham:
Q. What does this show?
A. This is an exhibit that shows the differences between
the Democratic percentage assigned in the split counties based
on the four criteria of partisanship offered by the defendants.
And what it shows is that the difference between the
Democratic proportion of each of the counties splitting, they
are split within the 12th District, is [*148] less than the racial
differences. If you look at the racial differences in my Table
Two versus the partisan differences in this Exhibit 433, the
racial differences are always greater than the partisan
differences.
Q. Now, returning to your report to Table Three on
page 24. What information does this table provide?
A. Table Three provides information as to each of the
municipalities or census designated places that have been split
in the drawing, again, of the 1997 Plan under challenge here.
And in Table 3, again list by the jurisdictions within each of the
districts. So you have, at the top of the table, you have all the
jurisdictions that are split within District 1, numbers 13 total
jurisdictions that are split and then it goes all the way through
all the districts and concludes with the number of communities
that are split in District 12, which numbers, 1 believe, 13
separate jurisdictions that are split in Table 12 to create, again,
not Table 12 but Table Three for District 12. The jurisdictions
that are split between District 12 and another district.
33 Okay. Again, is Table Four at page 27 a different way
of presenting these same data?
A. Yes, it is. But it's a way in which you can very easily
see the racial differences in the communities that are split to
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draw the various proposals. For example, if [*149] you look at
top of page 28 and in the Greensboro split, the portion that's in
District 6 is 10.7 percent African American, but the portion
assigned to District 12 is 55.6 percent African American, again,
focusing on Forsyth County. Bottom of page 29 there you
show 16.1 percent is the African American portion assigned to
District Five, but 77.4 percent is the African American portion
district assigned to District 12. Again, you can see the racial
differences as the communities are being split between the
districts.
Q. And is exhibit -- Defendant's Exhibit 434 analogous
information with respect to the political division of cities?
A. Yes, 1t 1s.
Q. How do those two contrast, Table Four of your report
and Exhibit 434 of the defendant's exhibits?
A. Again, in looking at the communities in Table Four, I
believe in all but one case the racial differences is greater than
the political difference in Exhibit 434.
Q. And have you prepared an exhibit which summarizes
this information concerning the political data in the divisions
of cities?
A. Yes, I have.
Q. Which exhibit number is that? Is it Exhibit 3097 I
believe that's the one my information shows.
[*150] A. Yes, it's Exhibit 309.
Q. And can you explain for us what that information
indicates?
A. Well, the theory underlying the preparation of this
exhibit would be if one were to assume that precincts were
going to be randomly assigned within the six counties
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involving District 12, you might have about 36 percent of all
the precincts would be assigned to District 12 and what it
shows is that almost all of the precincts that are over 40 percent
African American, | think it's all but three are assigned to
District 12, but on the political data nowhere is the number in
the same range as is the case with the racial data.
Q. Next ] want to turn to your Table Five. I believe it
appears after page 32 of the text?
A. Yes, sir,
Q. What does this data show regarding the assignment of
precincts in Congressional District 12 in the 1997 Plan?
A. This table has a page or more for each of the counties
that are split between the congressional districts, and so it has
counties from split with District 12, with District 1 and with six
other counties as well. But, for example, if we look at one of
the counties that is assigned to District 12 and perhaps say
District 5, I'm going to page through to the Forsyth County
table, this [¥151] should be about, ] believe it's the eighth page
of the tables.
The way I have organized the tables is to list every
precinct in the county and to list for it the total population; the
white population, the black population, the total VAP, the
white VAP and black VAP and the percentage of each of those
figures.
Also, in the very far right-hand corner to indicate the
district to which it was assigned in the challenged plan of 1997.
What you would expect to see if there's a pattern of racial
assignment because the districts -- excuse me, the precincts are
ranked from the highest African American percentage in the
precinct to the lowest in the precinct, you would find the
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precincts assigned to District 12 would be at the top of the
table. So as you can see in this particular table, every precinct
that is majority African American beginning with the eastern
elementary school precincts and working up the table has been
assigned to District 12. And then you go down and you find a
few other assigned to District 12. But you go to the second
page of the table, which has the very light majority precincts in
Forsyth County. You notice none of them are assigned to
District 12 at all, they are assigned to District 5.
So with this information you can very clearly see a
[#152] pattern of assignment at the precinct level which, in my
judgment, is a racial assignment that is being made or has been
made by the state.
Q. Okay. Let's continue. Your text table, Table Six,
appears, | believe, after the text on page 55 at page 567
A. Yes, sir. Table 6 is a table constructed 10 examine the
proposition proffered by the defendants that what really 1s
involved here is assignment of precinct on the basis of
partisanship rather than on the basis of race. So have a series
of tables labeled as Table 6 that array each of the six counties
in District 12 as well as a table at the end in which I report all
the data for six counties in District 12 in which I array the
partisanship measure against the racial measure.
For example, again, if we were to look at the Forsyth
County table, which begins on table on page 58, Forsyth
County table if you look in the far right-hand column and
bottom of each table, of course the precincts that are 70
percent African American and 70 percent Democratic are
clearly assigned to the 12th District. So in this case, it's 13 of
13 precincts that have that racial composition and also that
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Democratic composition.
Then you start reading up the table and you begin to see
at what point there's no longer the assignment of precincts to
District 12. And if, again, as I suggest in [*153] the text of my
report, if the inference is it's party thatis driving the assignment
pattern rather than race, you would find that even in the
precincts that are less than 30 percent African American, you
would have assignment of Democratic precincts.
For example, if we look at page 58, look at not the
Democratic registration figures because the Democratic
registration figures are somewhat inflated, if we look at the
1990 Senate race between Harvey Gantt and Senator Helms, we
begin to see at the level of less than 30 percent. There's not a
single precinct that is less than 30 percent black, but yet
supported Mr. Gantt in that Senate race that are assigned to
District 12. So the inference here is that if we were following
partisanship, some of those precincts would be assigned and
you have much more random person pattern in the table of
assignment. You see a clear pattern of assignment on the basis
of race rather than party.
If you look at the summary table, which begins on page
68 and 69, which has the data for all the counties and, again,
you look at the 30 percent line and, again, we look at the
Harvey Gantt versus Helms race on page 68, there we see that
there's a total of -- let me see if I can do my math correctly In
my head -- 74 precincts Jess than 30 percent African American,
but they all went for [#154] Mr. Gantt in the Senate race. But
only 19 of those 74 are assigned to District 12. Remainder are
assigned to other districts adjacent to District 12. I think that
pretty well debunks the theory it's partisanship not race driving
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the assignment pattern of these precincts.
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[*158] Q. What are the results of these analysis results
reported?
A. The analyses are reported in Table 7 on page 80 of my
declaration.
Q. What does that table provide in the way of
[*159] information concerning the nature of participation rates
in North Carolina?
A. In the Democratic primary, in the First Congressional
District and the 12th Congressional District as well, I believe
in all but one occurrence African Americans participated higher
rates than non-African Americans in the Democratic primary.
That's in Table Seven.
Q. What's Table Eight reflect?
A. That reflects the participation rates in the general
elections. Again, held within the boundaries of District 11 or
held within the boundaries of District 12 under challenge in this
case. In there the analysis indicate that white or non-African
American voters generally vote at higher rates than African
Americans in the general election.
Q. What further analysis did you conduct concerning these
election related issues?
A Well, finally -- not finally but the second step was to
estimate the white cross-over rates in these congressional
districts using in particular, as | report in Table Nine on page
84, the general election returns because, again, as I've
demonstrated in Table Eight, if African American voters are
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slightly disadvantaged in participation rates in the general
election, then in order for African American candidates of
choice to win, they [¥160] have to get some degree of white
cross-over vote in these general elections in order to prevail.
What I show, and I think this has to do with the broader
question about narrow tailoring, is that for the First
Congressiona) District the worse case scenario was in 1990
when Harvey Gantt got 18 percent of the white vote in the
boundaries of the challenged 1997 First Congressional District
and it ranges all the way up to 46.2 percent where Mr.
Campbell, the State Auditor candidate, did that well in that
particular contest.
In the boundaries of the challenged 12th District, the
ranges are much narrower, 35.1 percent at the low point for Mr.
Gantt in 1996 running for the second time against Mr. Helms
to a high of 41.8 percent that Mr. Edwards got in 1998.
[*161]Q. I'd like to focus on the electoral safeness of
Congressional District 12. Where's the data reflected that
indicates the results of your analysis concerning the electoral
safeness of that district as drawn in 1997 Plan?
A. In the 1997 Plan recall, no elections were held within
the boundaries of this particular congressional district. But,
again, I reconstituted the state wide election returns within the
precincts used in that particular plan and so those are, again, in
Exhibit E, which is --
Q. Which is Exhibit 527?
[*162] A. Yes. Deposition Exhibit 52 and, here again,
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focusing in on the general election returns 1990 for this
challenged District 12 which, of course, has never been used.
It's 66.4 percent for Gantt. For the 1992 general election for
State Auditor, it's 66.8 percent for Campbell. 1996 election,
Gantt for the U. S. Senate, Gantt gets 64.9 percent. General
election for Auditor in ‘96, Campbell gets 65.5 percent and
finally the 1998 general election for U. S. Senate, Mr. Edwards
gets 69.3 percent. So all of these are results well over the 60
percent threshold to be deemed as a safe district and clearly
there are votes being wasted in that district as it's been as it was
configured in 1997.
Q. When you say “votes being wasted,” what do you
mean?
A. The sense is when you are doing districts and you have
certain kinds of outcomes in mind and you have adjacent
districts that are different in political composition, you might
want to take some of the voters in the district that you are
drawing that's overly safe and put them into adjacent district so
as to make that district more competitive.
Judge Boyle: Like handicapping a race. You want to
get your horses to the finish line ahead of all the other borses.
The Witness: Yes, constitutional but do it in a
[#163] way you have voters not wasted.
Judge Boyle: So you are saying rather than
handicapping it, they are making some sure things.
The Witness: My sense is District 12 is a sure thing.
Again, in the challenged plan.
Judge Voorhees: If a legislator were being purely
partisian, that legislator would want the optimum 60 percent in
a particular district and save the overage to help his party In
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another district?
The Witness: Yes. The district that might have
benefitted from that, with the hindsight from the ‘98 election,
would have been District Eight, in which there was an open
seat and there was a seat that initially was a Democratic seat,
but it turned over to be Republican.
Judge Boyle: If you add 20/20 hindsight. you wouldn't
put so many voters that you were targeting in District 12. You
might have thrown a few over to District Eight and won both
elections rather than sacrificing District Eight and just winning
District 12?
The Witness: Yes, sir, that's exactly correct.
[*164] Q. Dr. Weber, what do the data reflect concerning
the electoral safeness of Congressional District 12?
A. Plaintiff's Exhibit 206.
[*165] Q. And this is the first page, the first portion?
A. The third page, first portion reports various analysis for
past elections held within the boundaries of the precincts
assigned to District 12. And so, for example, the first column
reports the number of persons in the district. The second
reports the black African American percentage in the
population. The third column reports the black African
American percentage of the VAP. The fourth is a Democratic
performance measure, and I don't know how they calculated the
Democratic performance measure, but in occasions in which I
have seen this in the past, it's simply a sum, an average --
Ms. Smiley: Objection, Your Honor. Where he has
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seen it in the past has no relevance to this document.
Judge Thornburg: Answer the question.
Q. Will you continue with explaining the other columns?
A. I have seen this before in Texas. Texas NCEC was also
advised in Texas -- advising the Texas legislature how to draw
districts. I saw the performance measured there. [know it was
an average there. The average other columns are that are going
to follow.
The next column is the Democratic percent in 1990 of
the U.S. Senate 66.6 percent. The next column is the 1996
Senate race general election, again, 64.2 percent. The next
column is the 1996 Presidential race, 64.4 [*166] percent. The
next column is the Democratic percentage for President in
1988, Michael Dukakis was the candidate, 66.5 percent. Next
column is 1996 auditor in North Carolina, 65.2 percent. And
we have 1996 House, which is a generic adding up of the
election returns for all of the House raises [sic] within the
precinctsassigned to district, 1261.6 percent; 1994 House, 54.5
percent; 1992 Senate, 62.6 percent; 1996 Democratic
registration, 61.9 percent. So the Democratic registration in
this district is 61.9 percent. Then we have the 1996 black
registration, 43.5 percent; 1990 black registration, 44.2 percent
and then finally we have the Native American percentage,
which 1s 0.4] percent.
Q. Let me ask you with respect to these data, did they
change in any way your opinion concerning the electoral
safeness of Congressional District 127
A. No. It reinforced it. It's more data than I have. It
reinforces my opinion.
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[*167] Q. For the 1996 version of Congressional
District 12, tell us what percentage of the district, as it's
constructed, 1s African Amencan for the Democratic
[*168] primary.
A. My estimate, again, for 1996 is about 59 percent
African American in the District 12 Democratic primary.
Q. Does that information allow you to make a judgment of
whether the district is constructed in a way that's likely to
denominate a candidate of choice of African American voters?
A. Yes, except for the possibility the African American
community might be fractured or noncohesive. Assuming they
are cohesive, the candidate of choice of African American
voters will be nominated in both the 1st and 12th District.
[*181] Q. Similarly, have you reviewed the maps of the
general region of Congressional District 12 with respect to
black voting age population, which is, I believe, Joint Exhibit
106, the map that we have been using here today on the easel?
A. Yes, I have reviewed that.
Q. Have you reviewed maps 107 through 109 which are
the individual county maps for Guilford, Forsyth and
Mecklenburg Counties reflecting population?
And Democratic voter registration.
And Democratic voter registration.
Yes, I have.
Have you contrasted those maps with the information
A.
Q.
A.
Q.
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the maps that have been provided as exhibits -- Exhibits 253
through 258 which are maps of the results of the 1988 Court of
Appeals?
A. Yes, I have.
Q. Have you also contrasted the racial maps, which also
appear as Exhibits 237 through 242 in another format with
[#182] precinct names?
A. Yes. Those show black voting age population.
Q. As opposed to total population?
A. Right, for the those six counties.
Q. You reviewed all of those maps showing voting age
population?
A. Yes, | have.
Q. Have you also contrasted the two groups of racial maps
with the results for the Harvey Gantt election contest in 1990
which are reflected as a general map at 263 and as individual
county maps through 268?
A. Yes, I have reviewed those also.
Ms. Smiley: Did you say 263 through --
Mr. Markham: Through 268.
Q. And as a result of those contrasts and compansons, do
you have an opinion concerning whether or not the assignment
of precincts to the 1997 Congressional District 12 was
predominately based on race?
A. Yes, and it reinforces clearly the opinion I gave in my
declaration on Table 6 for the six counties.
* RE
[*185] Q. Next there's a series of maps beginning with
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number 272 and continuing to number 287. We'll just Jook at
one map as the illustration, perhaps the map of Wayne
County, 280?
A. Okay. My book ends at 274.
Q. Map numbers were 272 to 2877
Ms. Smiley: What example are you using?
Mr. Markham: Let's use the first one, 272.
Ms. Smiley: Thank you.
[s that still in the exhibit book that you have?
Yes, it 1s.
And can you tell us what this map illustrates?
It illustrates wherever the concentration of African
American population would be in this county, and you would
have red dots. And so there are really two places in the
[#186] county; one small concentration on the cast side of the
county on the bay and the other at the west side of the county.
But these series of maps illustrate the relative concentration of
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African American populations in each of these counties.
Q. And what other information would benefit the Court
that those maps provide?
A. Well, again, if | were to put all of these maps together
and I were assessing this concentration compactness question
that I assessed in my declaration, one would see basically that
the -- that the areas of where African Americans live in
northeastern North Carolina, they are all relatively distant from
each other. There's not a sort of pattern of closeness exhibited
in these series of maps and these dot matrix maps illustrate this
very nicely.
Q. Let me give you the next exhibit book, which begins at
Exhibit 276. Let me ask you to make a similar evaluation of
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the map for Mecklenburg County at number 286. Can you tell
us what information of assistance to the Court that map
provides?
A. Okay. Map 2867?
Q. Yes.
A. This map has the dots plotted for every 20 African
American persons and in the center of the map is
[#187] Charlotte, you know, the city of Charlotte is in the
center of the map. And it shows basically that the African
American population in Charlotte is on the north side, a little
bit on the west side and a little to the east of the center of the
city. But that's pretty much it. There's some small
concentrations running up along the interstate as you are
heading toward Iredell County, but other than that it's mostly
in the city of Charlotte.
Q. And you've reviewed this senes of maps, 272 to 287.
Have you contracted [sic] them with the boundaries of the
congressional districts for Congressional Districts 1 and 12?
A. Yes, I have.
Q. And have you any information concerning whether or
not the boundaries in a general sense conform to the location of
African American population?
A. Pretty consistently. For example, in the six counties in
the 12th District, the African American populations on these
maps are placed within the boundaries of the District 12.
Q. And can you tell us what relevance the next map, two
maps down, 288, which is the map of the 1980s Congressional
Districts in North Carolina, what relevance that map has for the
issues before this Court?
A. Well, I think the maps of the previous plans, whether
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[*188] it's a map of the 80's or the map of the 70's or even a
map of the 60's, all of them show how the State in using
traditional criteria, drew congressional districts and this
particular map from the plan of the map of the 1970 adopted
April 29, 1971, does not split a single county of the 100 in the
State of North Carolina in drawing congressional districts.
Q. Sorry. You are referring to the 1970 map?
A. Yes. Maybe I pulled out the wrong exhibit.
03, You were referring to 288 A?
A. I got into the wrong exhibit, I'm sorry. My book does
not have a 288, that's why or it's out of sequence. 288 A 1s the
plan from 1980 -- after the 1980 Census, I should say, and it
reflects that there were a total of four counties split in all of
North Carolina. I can't read the one county up in --
Judge Boyle: Avery.
A. Sorry, Avery, Yadkin, Moore and Johnston County
were split. All the rest were composed of whole counties.
Q. Next I would draw your attention to Exhibit 288 D,
which is a data sheet that comes from a Section 5 submission.
Can you tell us from that information what was the most
heavily African American congressional district in the 1980's?
[*189] A. That would be District 2, which if you take the
1980 Census was 41.1 percent African American where you
take the calculation after the 1990 Census was available 1543.5
percent. District2 is the most African American district at that
time.
Q. Where generally is that district located?
A. That district on the east was Edgecombe County and
had all of Rocky Mount in it including Nash, Wilson, a portion
of Johnston and Halifax, Warren, Vance, Granville, Person,
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Caswell and Durham. Durham is in that district.
Q. Next we go forward to Exhibit 289, which I believe
you looked at earlier. What information does that map of the
1970's congressional districtprovide that would assist the Court
with regard to any issues in this case?
Ms. Smiley: Objection to characterization as either of
these maps, 288 or 289. providing assistance to the Court. I
don't think that foundation has been aid.
Judge Thomburg: [I'll let the witness answer the
question.
A. These maps either now or in the plaintiffs’ exhibit were
originally in my declaration in 1998 because in that declaration
I was trying to outline the way in which congressional district
plans have developed over time in the State of North Carolina.
And in the days right after the one-person, one-vote decision,
the State was able to [*¥190] draw constitutional districts using
whole counties.
1980, the map we just looked at in the previous Exhibit,
288 A and B, they then had to split four counties, but that's the
extent to which the state had to in a sense ignore traditional
redistricting principals.
1970's, they didn't and certainly in the late 60's as they
were sorting out the district sizes as a result of the one-person,
one-vote decision, they didn't have to draw districts split across
the counties.
Q. What's the maximum number of counties necessary to
split in North Carolina in order to achieve one-person, one-vote
equality?
A. As a principle, you take the number of congressional
districts and you have one less district minus one, so it's 11. If
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you start with the ]st District and you draw whole counties and
you get to some place where you have to split a county, that's
one county split. Now, the Second District you draw all the
whole counties and you may have to split a county. It's always
one less than it, so 11 is the maximum to be split in North
Carolina.
[*195] Q. In determining how would you, as a political
scientist, go about determining what constitutes traditional
principal, specifically in a community of interest?
A. One of them is community of interest. So there are a
number of ways of defining traditional -- defining communities
of interest and among them are metropolitan areas, people who
live and work in the same region of the state are defined as
having a community of interest. And this map in Plaintiff's
Exhibit 303 clearly exhibits shows those communities of
interest.
Q. And the map is exhibit -- Joint Exhibit 102 illustrates
that the 1997 Plan, in fact, cuts across those communities; is
that correct?
A. Yes. Well, Charlotte is in a different metropolitan area
than Winston-Salem and Greensboro.
Ms. Smiley: Your Honor, I object and move to strike
this whole line of testimony. Once again, the fact a political
scientist thinks of these are traditional principles, I don't think
any court said any legislature is required to use these maps and
there's no evidence that the legislature used these maps, so I
don't see they're relevant to the intent of the legislature, what it
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did or didn't do.
Judge Voorhees: You think the legislature was
[196] unmindful of standard statistical metropolitan areas, 1s
that not observed, on its face, contemplate they had no idea
about SMSA?
Ms. Smiley: Well, Your Honor, first of all the SMSA,
these are from 1982. I'm not sure they are current, whether
these are the ones that exist. They may be aware of it, you are
exactly right, in the backs of their minds, but there's no
evidence they are intending to use these in any way In
developing their plan. So I still would say they are not
relevant.
Judge Thomburg: I overrule that and move on.
Q. Did you finish your answer, Dr. Weber, with respect to
that map?
A. Well, one of the criteria that is involved in the
community of interest is living in proximity to another person
and SMSA’s are the best way the national government has
come up with with defining metropolitan areas and
metropolitan areas whether it's social science or something
legislature does, we're all aware of as representing one area of
community interest.
[*198] Q. We looked at Exhibit 309. Is this an exhibit that
you had prepared?
[199] A. Yes. That's the exhibit that was prepared out of
Defendants’ Exhibit 435 to talk about the assignment of
precincts to Congressional District 12 in the 1997 Plan.
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Q. ['d like to go back to that Exhibit, 435.
A. Okay. I gave that book back to you at the break.
Q. Okay. Defendants’ Exhibit 435. And I'd particularly
like to draw your attention to the third page to the second table,
which is Jabeled Table 6 B.2. And my question for you Is:
what does the information in that table indicate to you?
Ao Okay. If I'm with you, I'm at Forsyth County, right?
Q. Forsyth County precincts, that's correct.
A. And I'm looking at Table 6 B.2, which has percent
black population rated against percent Democratic in the 1990
Senate election. What it suggests first of all is that, of course,
the African American majority precincts in Forsyth County are
assigned to District 12. 13 of 13, over 70 percent and two of
two over 50 percent to 60 percent, so there are 15 assigned.
If you go to the line at the top of the table, which is less
than 30 percent African American, but then reports the
Democratic precincts in this particular context, there are a total
of eight precincts in Forsyth County that are not assigned to
District 12. And only precincts mostly African American
population are assigned to District 12.
[*200] Q. I'd like to draw your attention to the first line of
that column which shows those precincts which are less than 30
percent African American in total population. Can you tell us
how many of the precincts that voted more than 50 percent
Democratic in the Senate election were included in the 12th
District from that county?
There are none.
How many were there available total?
Would have been eight.
Are there precincts on the border of Congressional
A.
Q.
A.
Q.
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District 12, as it's constructed in 1997 Plan which are
Democratic, particular in their voting behavior?
A. Yes. By comparing this data with the maps, I
concluded that there are precincts in Guilford and also in
precincts in Mecklenburg.
Q. Can I draw your attention to map 265? Ask you to look
at this book here. I'll trade out your other book. What does the
information in the map at 265 tell you with regard to that
question of whether there are precincts on the border of
Congressional District 12 which were available to assign on the
basis of party considerations to the 12th Congressional
District?
A. First of all, this map 265 displays the voter precincts by
percent Democratic in 1990 Senate race between Gantt and
HelMs. And the yellow line on the map [#201] demarks the
boundary of District 12, so the area in the center of the map
heading northward on the map between the yellow lines is in
Distmict 12. Everything that is not in District 12 is then
assigned to District 5 in Forsyth County.
If 1 go to the top of the map where I see a precinct that's
sticking up with a little bit of a nub toward the north that's red
hatched, that's 50 to 59 percent, so that indicates Mr. Gantt
carried that. If] start counting precincts, [ go down. I have
one, two, three, four, five, six, seven, eight, nine, ten precincts
that according to the color coding on the map are indicated as
having gone for Mr. Gantt in that election, all adjacent to
District 12. But we're not assigned to District 12 and my
theory or inference would be if this were an attempt to draw a
Democratic district in Forsyth County, you would clearly wind
up with those precincts, if they're to go with the other precincts
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east of that line so you have all of them in the center of
Winston-Salem in that particular district.
Q. I would like to ask you about map 266. What
information did that map provide regarding the question of
whether there are precincts along the border of the 1998/1997
verse of congressional district today which are a lined
Democratic and could be assigned to the district on [*202] a
partisian basis?
A. This is a map of Guilford County. Again, like the
previous map precincts by Democratic vote in the 1997 race,
the yellow line starting in the lower left-hand corner, the county
goes through High Point and then nearly makes it up to
Greensboro and the east side of Greensboro. There are, again,
precincts that, according to the color coding, are either 50 to 59
percent African American -- or 60 not African American but
Democratic, not been assigned. IfI count I believe I have one,
two, three, four, five, six, seven, eight, nine perhaps adjacent to
District 12 in Guilford County but not, again, Democratic
precincts assigned to District 12 but were assigned to District 6.
If one is inferring that partisanship was the underlying
motivation for the drawing of this particular District 1, again,
would have assigned those precincts based on the partisian
information in the data base.
Judge Voorhees: How many did you say?
The Witness: I believe there were one, two, three, four,
five, six, seven, eight, nine, I believe, maybe ten, if I read the
map correctly.
Q. Now, let me draw your attention to map 268 with
respect to Mecklenburg County. What information does that
map provide on the issue of whether there are precincts
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available along the border with the 1997 version of
[203] Congressional District 12 which if one were
constructing a Democratic District 1 would have concluded?
A. This, again, is the same map now for Mecklenburg
County precincts by percent Democratic vote 1997 Senate
race. This delineates -- the 12th from the 9th is a purple line,
so it's easier to see than in the previous map. However. again,
I have some 50 to 59.9 percent precincts and 60 percent
Democratic precinctsin this race. If [ do this I've got one, two,
three, four, five, six, seven, eight, nine, ten, 11, 12, 13, 14, 15,
16, 17, 18, 19, 20 precincts that I can see right adjacent to
District 12 that might have been assigned for partisian [sic]
motivation for.
Judge Boyle: I'm not trying to make this too simple,
but in the Order that this Court wrote in ‘98 Holding Summary
Judgment for the plaintiffs, didn't this lay out a whole
comparative exercise of those districts -- those precincts next
to the 12th District that could have been included? You are just
going over the same material now, aren't you?
Mr. Markham: Your Honor, those with respect to
registration primarily I was focusing on the 1990 political
results from the voting behavior of the voters in the 1990
Gantt\Helms contest for purposes of these questions. But
certainly they are similar in their [#204] support for the
position that there are Democratic precincts available.
Judge Boyle: Wasn't the point of that part of the Order
to show by comparison the fact that certain heavily
Democratically registered precincts had been left out from
those that had high African American population had been
included?
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Mr. Markham: Yes, Your Honor, those issues dealt
with voter registration which was challenged as to its accuracy
or predicted value so we focused here on the 1990 Helms\Gantt
election results, which showed Democratic voter behavior
rather than merely their registration, and hopefully fills a gap.
By Mr. Markham:
Q. How does this information, Dr. Weber, comport with
your opinion as to the racial motivation for the construction of
12th District?
A. Overall in Exhibit 309, if one were to assume that
precincts are randomly being assigned to District 12 and issue
1S not is it race or is it partisanship, you would have about 36
percent of all precincts assigned to District 12 and the exhibit
shows that 76 of 79 precincts that are black in population, 40
percent are higher, are assigned to District 12, whereas in all of
the partisan indicators they range from 56.5 percent down to 39
percent [*205] on voter registration. So, again, this is evidence
it seems to me that clearly confirms the racial assignment of the
precincts to District 12 and rebuts the notion that this was an
assignment on the basis of partisanship.
Q, And does this exhibit reflect similar statistics
concerning the other two contests or election contests the State
purportedly looked at?
A. It includes the Court of Appeals and the Lieutenant
Governor, taken from Dr. Peterson's exhibit.
Q. Is that generally consistent with the illustration that we
just bad with respect to Forsyth County?
A. To Forsyth County and Guilford County and
Mecklenburg County.
Q. Do you have an opinion about whether it's necessary to
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draw a 12th Congressional District so elongated a manner in
order to have a safe Democratic district in that region in North
Carolina?
A. To have a safe Democratic district; you don't have to
draw the ‘97 district to have a safe Democratic district.
Q. Andis it necessary to draw Congressional District 12 in
some elongated manner in order to have a district likely to elect
candidate of choice --
A. I have seen evidence that a district based on
Mecklenburg County itself would, in fact, elect an African
American to the House of Representatives.
[206] Q. I want to turn now to the issue of compactness.
In your report, Exhibit 47, there's discussion that begins at page
47. Can you tell us in general terms?
A. Excuse me for a minute. I need to shuffle some of this
paper in front of me.
0, This is Exhibit 47. In general terms, where does the
compactness -- the measure of the compactness of this
Congressional District 12 rank among the districts of the
United States Congress today?
A. Well, to give you some foundation, there are reports
done in the past by election data services in Washington, D.C.
that report both perimeter and dispersion measures of
geographical compactness.
Professor Webster, employed by the defendants,
updated the measures of compactness in I believe two different
affidavits or reports for this particular case. So using all of this
information, the data that | have about the old congressional
districts as well as the data about the revised 1997
congressional districts, I concluded that North Carolina 12
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there being 435 congressional districts ranks either 432 or 433
on the perimeter measure of exactness, so it's almost at the
bottom and on the dispersion measure it's either 430 of 431, the
reason I can't come down to whether it's 431, or 432 or 433 is
because Professor Webster didn't report a [207] number for
District Eight, which has been revised in the State of New
York. So I don't know where Eight falls. North Carolina 12
continues to be the least compact district in North Carolina and
the worst in the nation, among the worst in the nation for
compactness.
[*207]Q. Let me return then to the joint exhibits. Now,
let’s go to the map 126 of the joint exhibits. Dr. Weber, have
you had an opportunity to review a number of plans included
in the Section 5 materials for 1997 to 1998 from the State of
North Carolina in connection with your research in this case?
A. Yes, I’ve reviewed all of the plans that were made a part
of this Section 5, exhibits going to the U.S.[*208] Department
of Justice and this one, 126, is one of those plans. It is titled
Winner/Cooperr 1.0, Winner/Cooper 1.0.
Q. Have you ever drawn a redistricting plans?
A. Yes, Sir, | have drawn many plans.
Q. Have you ever used the plan ‘90 software in Louisiana,
which 1s the same vendor that North Carolina used.
Q. What information does Exhibit 126 provide to you
concerning the process which led ultimately to the development
of this 1997 district?
A. Well, here there are three maps. There's a map that
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simply for the state as a whole in a very crude way represents
the districts and then there are detailed maps. One of district 1
which is 126 B, and one of District 12, which is 126 C. And
then there’s finally a statistical listing and this statistical listing
1s very familiar to me. It’s the same kind of form at -- again,
that the State of Louisiana produces with their redistricting
software.
Q. Now, there will be other evidence that will indicate the
time during which this plan was sketched. What does the
structure of that plan indicate to you?
A, For a particular district or --
Q. For District 12.
[*209]A. Oh. for District 12. In Exhibit 126 C, it’s in
Mecklenburg County and then it’s in Iredell and then in it’s in
Rowan and it’s in Davison and Cccomes into Forsyth and
winston-Salem and comes a little bit into Guilford into the
High Point area, but it stops at High Point in that particular
plan. And in that plan demographically is 39.64 percent
African American in totla population for district 12. But it’s
also a district that performs quite well politically. That’s the
third page of the report. Shows that Senator Gantt in 1990 got
62.7 percent of the vote. Rand got 57.04 in 88 and Lewis got
55.89 in 88. So that’s a democratic performing district.
* % %
[*213] Q. Reviewing these maps as a group from 126 to
130, what progression can you see in the construction of the
Congressional District 127?
Ms. Smiley: Object to the terminology “progression.”
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Judge Thomburg: Overruled, go ahead.
A. When we finally get to Cooper 3.0, which is in
Exhibit 130, you will see if we look at the map for the 12%
District, the map is now very similar to the map before you
on the easel, which is to say all of the previous maps didn’t
have Greensboro in this district and at this point now they're
adding Greensboro in and there’s an e-mail message that
indicates that—
Ms. Smiley: Objection to the hearsay.
Judge Thornburg: Sustained.
Q. So at what point in the progression of these maps is
there a change from the absence of Greensboro to the
[*214] inclusion of Greensboro?
A. From Cooper 2.0 to Cooper 3.0, Greensboro has been
added to the district and the African American proportion
now in District 12 is 47.9 percent. In the previous map, and
plan --
let me just go back here to be sure I review the right data --
that 1s 40.1 percent. So basically the district has been
increased by almost eight percent from Cooper 2.0 to Cooper .
3.0. That’s when the Greensboro blacks were added to the
district.
[*220] Q. Dr. Weber, where do you look to determine
what North Carolinian’s redistricting principles are, which are
traditional?
A. We would look at the history of congressional regarding
to that, so you look at the maps and the practices of the state in
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the past to do that. Particularly, what I guess I would
characterize the post one-person, one-vote era, so we're talking
about 1965 to the present.
Q. What traditional redistricting principles does your
analysis establish or subordinate to raise in the construction of
the 1997 Plan?
A. You have the splitting of political subdivisions,
particularly counties and cities censuses in these places. The
subordination to compactness. Compactness is not --
geographical compactness is not inherent and there's also
[221] some disregard of communities of interest in this
process. Those are, I think, the three major race neutral
principles that are violated in the 1997 Plan.
Q. If one were drawing a district based on partisanship in
the central Piedmont as a Democratic precinct, would there be
a need to split District 77 in Mecklenburg County?
A. No. You can create very partisan districts simply by
swapping Precinct 77 with, say, a precinct or two in Forsyth
County and have the same partisan result for the purposes of
drawing the district.
Q. Are there any majority black precincts in the six
counties, parts of which comprise the 1997 version of the 12th
District, which conceivably could be assigned to Congressional
District 12 that are not assigned to Congressional District 12?
A. No. Every conceivable majority African American
population perceived is assigned to District 12. There are none
that could be assigned that were not assigned.
Q. I would like to ask the same question with respect to
Congressional District 1. Are there any black precincts in the
district that the district could have been assigned to that district
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but were not assigned?
A. No, but I do need to explain that. In Craven County
there's a precinct by the name of Harlow that is 70.78
[222] percent African American. But my examination of the
map and the general boundaries of the district indicate that it is
too far removed. There would be more white population in
between that precinct and if you were to assign that precinct as
well as the adjacent white precincts, you would have fewer
African Americans as a percentage in the district.
. Have youreviewed the facts and statistics regarding the
1st and 12th District, which are cited in the decision of the
Court subsequent to the 1998 Summary Judgment?
A. Yes, I have.
Q. And are each of those facts and statistics accurate, based
on your own research?
A. Yes.
Q. Have you conducted -- have your additional analyses
been consistent with these data?
A. Yes.
Q. Have you ever, in any of the redistricting voting rights
or Shaw v. Reno cases in which you have been involved,
encountered a boundary segment analysis offered to explain
some part of legislative intent?
A. No. This is the first case where I encountered that
defense.
Q. Do you have any criticism to such analysis?
A. Within my declaration, I suggest that the analysis of
[*223] Dr. Peterson to be, I guess what I call a complete
analysis would have not only looked at the boundaries around
the district, because that's really assignments at the margin, but
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would have started from the core of the districts. So the core
would be where one would start the analysis and understand the
assignment pattern of the core then one would proceed to go to
the outer parts of the district to understand the total picture.
Also, in the process of ignoring the core, he ignored
what we call the convergent precincts, about 80 percent of the
precincts, as | understand his analysis, are suggested to be
convergent. He then proceeds to count each of the segments
equally and, of course, the segments are not of equal
importance to the assignment patterns.
Some precincts are larger than others and so, for
example, if one were going to say let's exclude Precinct X and
find another precinct to put in, you have to find one of equal
size to put in or out of the district. So consequently, the
counting that he does is counting on equal units and, in essence,
he's creating what I call an unweighted average when he should
have counted and weighted average for this purpose.
Subsequent to the writing of my declaration, when we
got the data and could subject it to, you know, rigorous
analysis, we discovered there are 13 segments that border
[*224] on Davie County. And we looked at the data in
particular because the maps we were getting for Davie County
showed no precincts. And we noticed there are no precincts in
Davie County, only townships that are the political
subdivisions that are used in the data base of the state.
And we noticed that all of the political data, with
whether it's voter registration data or returns for the ‘97 race or
the two races from 1988, all have the same percentages. So
there's a common percentage attributed to every Davie segment
so there are 13 segments that they are using the county average
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as the segment number and really the segments are not varying
in terms of their political makeup or their racial makeup in that
particular analysis.
So I would suggest that if I had encountered that, I
would simply have excluded all of those segments because they
are not -- they create erroneous information about the
assignment patterns undertaken by the state in that particular
analysis. In assisting you with the deposition of Dr. Peterson,
we prepared some exhibits that were deposition exhibits.
Q. Let me direct your attention then to Exhibit 23. From
the deposition exhibits, which is the first of that series of
exhibits, I'll ask if you can explain what information is
conveyed in that exhibit?
A. I don't have a copy of that in front of me.
[225] The reason these were prepared 1s what we were
provided by Dr. Peterson's company in the state was literally
not intelligible to the -- one would have to understand the
coding scheme of the analysis to do this, and it took awhile to
understand it, so we prepared these exhibits to display for what
in his report he calls type P divergent, partisan divergent
segments.
Here we're using Democratic registration and African
Americanregistration. So if you look at the top of the table, we
have what's called observation 6 in the data base, which is
segment 6, which has Mecklenburg Precinct 81 as the internal
precinct and the external precinct is Mecklenburg Charlotte 80.
We listed each of the segments that he described as type
P divergent. And in particular what I found interesting by
having done this particular exercise is that whenever he's got a
type P divergent segment, that type P divergence are very
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small. They're one or two or three percentage points at most.
So what I guess, to use a cliche here, is in this exhibit for the --
I think there are 20 some, maybe 24 precincts characterized as
type P divergence. He's making a mountain out of a mole hill,
which is to say the differences that are a discrepancy to
divergence are very small and they happen to be in the
direction that he would like them to be.
[#226] So, forexample, the Democratic -- excuse me, the black
percentage for Charlotte 80 is .1521, the black percentage for
Charlotte 819, internal segment is .1484. So if you go down
and make all of the comparisons, you will see one, two, three
percentage points relatively trivial and, technically, if you do
the difference and means test would be statistically
nonsignificant types of comparisons he has in this table.
Q. Is that also true of the differences we see of those
segments characterized of confirming the racial predominance
here?
A. Yes. That's the next exhibit, Exhibit 24, where there are
fewer of those, but those are the type that's divergent. Type P--
other thing that sort of hit me when I first prepared this, is how
many of these segments are Davie County segments external.
As I suggested a few minutes ago, I would exclude those
segments because, again, they are simply using the same data
for all of the political comparisons with those particular
segments.
Q. In fact, does the analysis in any way take into account
whether a precinct segment is in an area that's a Jand bridge
connecting two areas or whether it's in one of the core counties
or does it matter at all to that analysis?
A. No. At one point, I think I counted the number of
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[227] precincts in District 12, that there's no choice. It's a
single precinct that connects one piece to another piece.
You have to have the precinct in the district in order to
make it contiguous, and there were in these divergent segments,
there are a number of these precincts that turned out to be
divergent.
Again. you have no choice. You have to take that math,
if that's the math that you are going to follow to draw a district.
There are a number of those. I think I counted as many as ten
or 11 of those precincts in which the state had no choice but to
take that path to keep the state contiguous.
Q. Exhibit 25. Can you tell us what it provides concerning
this sort of analysis?
A. 25 is an attempt to summarize for all of the six counties
in the 12™ District where exactly these divergent, type P
divergent precincts are and where the type R divergent
precincts are. As you can see from this exhibit, for example, on
the type P, I believe 11 of 20 those -- no, let me start over
again.
15 of those are in the interior counties, the Davidson,
Iredell and Rowan counties. If you are going to connect
Forsyth and Guilford and Mecklenburg together, you have to
go through those three counties and 15 of the 26 type P
divergent precincts are in those counties. And for [*228] the
type R segments, it's 8 out of 15 that are in that in those
counties.
The other thing that I asked to be done when this table
was put together is to characterize what percentage of the
African American population resides in these counties. If you
take the third column over and you add that together, it adds up
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to a 100 percent or the three lower counties; Forsyth, Guilford
and Mecklenburg. 83 percent of the African American district
is in the three peripheral counties, the counties in the
boundaries, the counties in between only have 12 percent of
African American population in them.
Q. Exhibit 26, is that another exhibit that you prepared?
A. Yes. Here we were concerned with putting in one
exhibit, again, for the purposes of the deposition with Dr.
Peterson. The performance of the ‘92 Plan, Districtl2 and
District 1 and we had both here the black population and the
percentage achieved in the general election by the congressmen
and, of course, you can see in each case the performance of the
district is greater than the percentage African American in the
district.
Q. Next looking at Exhibit 27. Is that another exhibit that
you had prepared?
A. Yes. This exhibit counts up the number of times in
[229] effect that | believe that either the party or the race
explanation predominates and it's interesting that, in Dr.
Peterson's report, he focuses primarily on the Democratic
registration explanation, which is the explanation that has the
greatest degree of credence for the partisan explanation, the last
two columns, 23 to 13 or 20 to 12 or 26 to 15.
On the other hand, if you look at the political races and,
again, using all of the segments, he has in his analysis not
excluding any segments, that does not show a stark picture as
the picture that Dr. Peterson conveys in his report. And, of
course, we know through this deposition testimony or Section 3
history the state admits that the party registration data.
Ms. Smiley: Objection, your Honor.
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Judge Thomburg: Sustained.
Q. Let me ask you: is it possible to apply the segment
analysis to a district with a large number of split precincts?
A. No. Well -- technically, you could do it for the
population data. Once you get to the political data, then you
have to have some mechanism whereby you can, in fact, split
the population -- excuse me -- split the partisan registration
data or split the political data. And, typically, with these
state-wide elections, the data are [*230] not split in the
precincts that exist. So if the precinct is split, the state has to
come up with some sort of rule or the analysis has to come up
with some sort of rule as to how they will allocate the particular
portions to each of the districts that you do the segment
analysis.
Judge Boyle: Go ahead and finish your question as to
his criticism of Peterson's analysis, because 1 wanted to hear
that answer.
Judge Thornburg: Objection went to your statement to
what the state was conceding, so simply answer the question
without presuming to know what the state concedes or doesn't
concede.
The Witness: It is my opinion that the registration data
is the least reliable data to use for purposes of talking about
political performance. The best data that's in the state's data
base is the 1990 Senate data, because those precincts were in
existence when the data base was put together.
For example, the 1988 precincts there were changes. So
there are some cases in which I don't trust the 1988 data in the
state data base because they didn't, in my judgment, properly
allocate the changes in the precinct lines to create the data.
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There's a good example in Precinct 77 where the data in 1990
makes sense given the racial composition of the precinct. And
there's much [*231] greater support for Republican candidates
for the heavy majority precinct in 1988 doesn't make sense.
There's that kind of black cross-over in the two very partisan
general elections. I see that in other places in the data base.
I'm most likely to trust the 1990 political data and less likely to
trust the political data as to the performance.
Q. Use of the performance data rather than registration
give greater support for racial rather than partisan segregation?
A. Yes.
0). Is it possible given the problems you will have with
split precincts?
Ms. Smiley: I object to his leading the witness. I
believe this is an expert.
Judge Thomburg: Let's move it along. That's fine.
Q. Let me ask: is it possible to test this by applying it to
other Congressional Districts which have been invalidated as
predominantly race based under Shaw v Reno?
A. [ think the analysis that Dr. Peterson has offered us
could be done for other districts. You know, assuming that you
get the right maps and the right data and it's done properly, I'm
not sure in this case I believe it's been done properly.
123210. Is Dr. Peterson's analysis and report reliable?
A. No, it's unreliable.
Q. In your view, is it relevant to the issues before the
Court?
A. Well, if we assume that the question is it party or race
is an important question, it has some bearing on that question
if it were appropriately done. And I suggestthat it has not been
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appropriately done.
Q. Are there any other criticisms that you have of the
analysis by Dr. Peterson?
A. If you could put a map up for me.
Q. Which map?
A. It would be the map where Iredell County abuts Davie
County. [I think there's a map in our exhibits somewhere that
does that. Maybe it's just the big map.
Q. We have Iredell as part of the Exhibit 106 map; is that
sufficient to show the point?
A. This 1s not the best map to do it, but I can point out the
area that's in question. What I did was knowing his segments.
His data base tells me his segments. Okay, I then went along
and I verified whether or not there were any segments in error.
And ] noted that there's a precinct in the northern part of
District 12 in Iredell County that abuts Davie County, but yet
there's no segment in his data base showing that any segment
from Iredell [#233] County abuts Davie County segment, so
that’s an omitted segment from the analysis.
Q. Why was it in your view -- or what is your view of the
importance of the convergent precincts to an analysis?
A. Well, again, if this is -- it's kind of a preponderance
explanation. If 80 percent of your precincts are convergent and
many, many, many of those precincts are at the core —
Judge Boyle: What's "convergent" mean? Explain it.
The Witness: It means, basically, that the racial
percentage for the inside precinct is greater than the racial
percentage for the outside precinct. Or for the party
explanation, the Democratic percentage on the inside is greater
than the Democratic percentage on the outside. That's 80
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percent of the precincts.
Judge Boyle: That didn't explain it. I'm too simple to
understand that. You have to use more primitive language.
The Witness: It's simply -- I'm trying to think about it.
It's simply the question of what is the difference between the
percentages. And if the percentage of one is greater than the
other and it is consistent with either the racial explanation, that
1s races inside and not outside.
[*234] Judge Thomburg: Inside the district?
The Witness: Yes, or outside the district, then that
would be characterized as a convergent segment.
By Mr. Markham:
Q. And a divergent segment, in contrast, would be one
where --
Ms. Smiley: Objection, your Honor.
Judge Thomburg: Overruled.
Q. It would be where party is greater outside in the outside
precinct than inside. The Democratic percentage outside is
greater than the Democratic percentage inside or it would be
where the racial percentage outside is greater than the racial
percentage inside. Those are the characteristics of the
divergent precincts.
As I suggested earlier in looking at Exhibit 25, most of
these divergent segments are not in Forsyth, Guilford or
Mecklenburg County, but they're in the three counties that
connect the ends of the district and in a number of cases they're
there because they are the only path that the state chose to take
with --
Judge Boyle: So you are saying it's only as a product of
necessity that there would be a divergent district; where
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necessity 1s not a factor, they are all convergent?
The Witness: Yes, that's the tendency; it's not
[*235] perfect.
Judge Voorhees: And convergent depends on which
theory you are trying to prove?
The Witness: Yes, sir.
Judge Voorhees: So if you are trying to prove a racial
predominate theory, then --
The Witness: No, if the theory is -- if it's race that
predominates rather than party, then you will have a high
percentage of convergent precincts. If you have any precincts
that are divergent, they will be divergent in the direction of
putting the blacker percentage of the -- or the higher African
American percentage outside the district than inside the district.
Judge Boyle: But that never happens.
The Witness: It happens occasionally.
Judge Boyle: In District 12?
The Witness: It happens out of necessity, the need to
draw the district in a narrow way because you have large
populations in Forsyth, Guilford and Mecklenburg that anchor
the district. So the geography is dictating the lines that are
going on in Iredell, Rowan and Davidson.
Judge Boyle: But I thought there was no instance where
you had a majority African American precinct left out of
District 12.
[#236] The Witness: That's correct, not in a single one of those.
Judge Boyle: There are instances where you have a
majority Democratic precinct left out, but that's because of
necessity?
The Witness: No. Because, as I pointed out yesterday,
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there are currents in Guilford, Mecklenburg and Forsyth where
demographics bordering on District 12 were not future into the
district. They all happened primarily to be less than 30 percent
white -- or, excuse me, less than 30 percent African American.
Judge Boyle: That's what I was just saying, the only
times they are left out is where they don't have a minor
population?
The Witness: Yes, sir.
By Mr. Markham:
Q. If you analyze the segment analysis using the 1990
Helms/Gantt election, what then do the results indicate?
A. Using population as the racial comparison, it's by two
for party, two greater for party than for race. For VAP, it's
even 16, 16; and for registration, it's 16 per party and 13 for
race. So, again, divergent segments.
Judge Boyle: But if you read the opinion in the
Summary Judgment Order, it laid all of this out in detail. That
was one of the anchors of the opinion was that race [*237] was
a more pure predictor of inclusion than party?
The Witness: Yes, sir.
Judge Boyle: And what is it that we're back here to do,
to hear that from you or to somehow come up with voter
participation as a substitute for party? You follow the
question?
The Witness: Yeah, I follow your question. I guess I
don't quite know how to respond. I think the reason --
Judge Boyle: Well, that Opinion apparently relied on
voter registration rather than voter participation.
The Witness: Right. And basically here.
Judge Boyle: But the two are synonymous, aren't they?
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There's no great distinction in performance between voter
registration and voter participation when analyzing
non-precincts.
The Witness: The way I analyzed participation, I'm
looking at participation in the actual contest. So, for example,
I analyzed participation in the Gantt/Helms race of 1990, and
my theory 1s that that -- is the Gantt/Helms is the best available
data that the state had in its possession and used at the time that
it was doing the redistricting; that is, in fact, I think reliable and
accurate such that it would give them an understanding of
[*238] Democratic performance or Republican performance in
each of the precincts.
And, furthermore, it has the virtue of involving an
African American candidate so you, in fact, could get a real
test of perhaps white hostility to a Democratic candidate who
happens to be African American. So I think it's a very
appropriate political performance measure and a much better
performance measure than the registration measure.
Q. Are those political performance measures illustrated by
the maps we reviewed yesterday conceming the Helms/Gantt
election, for example, for each of the urban counties?
A. Yes, they are.
Q. And we did not look in detail at the Court of Appeals
race maps, but you have reviewed those. Are they also an
indication that in terms of Democratic performance that there's
that same type of relationship?
A. Yes, but I've already said earlier this morning that not
in all cases do I trust the Court of Appeals data, because in
some places the precincts changed between ‘88 and ‘90, and
the state didn't, I believe, accurately translate those data.
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Judge Boyle: So the state had from the ‘90 election
data, the Bureau's most reliable basis upon which [#239] to use
race and yet disguise it as party in imposing districts?
The Witness: I'm going -- I think I'm going to say no,
and the reason I'm going to say no is because, in my analysis of
cross-over in the Gantt/Helms race in the area of District 1 and
the area of District 12, I'd have to look back at the precise
numbers. But my remembrance is that you've got pretty strong
white cross-over, indicating that even though you had an
African American candidate who had happened to be the
Democratic nomination against Senator Helms in the context
of Southern politics, Mr. Gantt did quite well among white
voters.
Judge Boyle: Among white voters?
The Witness: Yes. Of course, he did very well among
African American voters.
Judge Boyle: I see.
Judge Voorhees: When you say "participation" and
"performance,” are you using those terms interchangeably?
The Witness: No, sir, I'm not. "Participation" is simply
going to the poles and voting in the contest, voting either for a
Republican or Democratic. In the Democratic primary voting
for the one of the Democratic candidates. The other is what
percent does a Democratic candidate achieve in the election.
That's the definition [*240] of performance.
Judge Boyle: But if you are trying to isolate those
precincts that have a race-driven content rather than a party
driven content, the Helms/Gantt race is going to give you the
best indicator of that, isn't it, so that you can distinguish, say,
in Mecklenburg, between a purely Democrat performing
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precinct and a minority Democrat performing precinct and
know which is which?
The Witness: Yes.
Judge Boyle: That was the point of the question that
you had a hot house example there, which you never had
before, if you were a legislator that allowed you to pick and
choose among what might otherwise appear to be simply
generic Democratic districts and now refine out of those the
race-driven Democratic districts.
The Witness: Well, and the districts that perhaps
because it's got some African American in the precincts as well
as whites willing to support an African American candidate.
By Mr. Markham:
Q. Do the voting performance analysis support the same
analysis the district court reflected regarding registration?
A. Yes, very consistent.
* kk *k
[*242)Q. Is there any particular information from these
documents which bears on your analysis?
A. Yeah, if I could turn to Exhibit 2] 1. One of the issues
that this was raised perhaps as a —
Judge Voorhees: I don't seem to have 211.
The Witness: Should be the 12th District starts on
page 1224.
Judge Voorhees: I can look on here.
A. I'm looking at the very last page, which is page 1227.
I don't know quite how to characterize the [*243] assertion, but
] think the concern was whether or not Congressman Watt, in
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1998, under the circumstances of having a revised
Congressional District and revised so that there was a primary
in September and, of course, the general in November, whether
or not the Republican challenger had the resources and the
capability to make an effective race in that particular district.
The best information that I have is from this report on
page 1227, which shows that John Scott, is it Kadle, I guess,
Kadle, who got 42 percent of the vote against Mr. Watt, spent
$381,000. And, generally, a challenger that spends that kind of
money would be regarded as a serious challenger. So the
redrawing of the district didn't prevent the Republican
candidate from making a serious challenge to Mr. Watt at that
particular time.
Q. I'd like to draw your attention next to Exhibit 217,
which is the article of Pildes and Niemi. My question for you,
Dr. Weber, have you relied on that article in the preparation of
your analysis and report?
A. Yes. I relied on this article for the data near the end of
the article. In my report, I report some data for the
geographical compactness on the 12 North Carolina
Congressional Districts in the 1980's, and those data were taken
from this report, page -- this article, page 572.
Then also, as I put in my report, anything about the
1992 [*244] plan that was ultimately found unconstitutional,
those compactness scores come from this article, too.
0. Okay. Next, drawing your attention to Exhibit 221.
Which is the Keech and Sistrom chapter?
A. Yes, sir.
Q. Can you tell us, have you relied on this in the
preparation of your analysis and report?
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A. Does it -- first of all, this is a chapter from a book edited
by Bemie Grofman and Chandler Davidson, and in the book
they have a chapter on each of the southern states and so Bill
Keech and Mr. Sistrom -- Mr. Keech used to be at the
University of North Carolina Chapel Hill. He contributed to
this chapter.
For me, the most important thing is to understand the
extent to which either threats of lawsuits or lawsuits in the 70's
and 80's brought about changes at the local level in cities and
counties of North Carolina and to understand that one of the
outcomes of these lawsuits was to change the method of local
districting in a way that produced greater racial segregation
within the precincts; that is black precincts were created that
were quite homogenously black and adjacent white areas were
put in white precincts so as to afford the opportunity to have
racial districts in these communities in North Carolina. And
that confirms for me the point that I made in my declaration,
that now [*245] in North Carolina many of the cities and
counties are split very homogenously into black majority
precincts and into white majority precincts, which can be used
by the precinct processors in the State legislature to draw State
legislator districts as well as Congressional districts.
Q. Switch now to Exhibit 226, which is a map of the
Congressional District comparing the ‘92 and ‘97 Plans.
A. I don't have that.
Q. At Joint Exhibit 139, I'd like to ask you what
information can be gained from the review of this map and/or
a comparison with Joint Exhibit 106? 1']] step on this side.
A. This map, it's number 226?
Q. Map 226, yes.
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A. This is very similar to the map that we looked at
yesterday for the 1st District where the old Congressional
District of 1992 is outlined in red. And so in this map you can
see you go to Durham and then you come to the northern part
of Orange and Alamance counties. Ultimately you get to
Greensboro and you pose in yellow is the 12™ District that's
under challenge in this particular case.
And what | find rather interesting is that there's a
substantial overlap in the African American neighborhoods of
Greensboro and Winston-Salem and Charlotte between the two
maps, suggesting that the core of the old 12 [#246] District
that was primarily African American is, at least as it's known
down to the six counties in the current challenged 1997 Plan,
has retained in that particular district.
[*248] Q. And next tun to Exhibits 140 through 142,
which are maps of Forsyth, Guilford and Mecklenburg
counties. How do these maps differently illustrate party
performance [*249] than the maps of the Court of Appeals in
the Helms/Gantt maps that we have been looking at yesterday
afternoon and this moming?
A. Well, the difference in this map versus the maps that
we're Jooking at yesterday and this morning, this simply says
whether or not there were some Republican victories and the
contest in question are the ‘90 Senate race, the ‘88 Lieutenant
Governor race and the ‘88 Court of Appeals race. So if it's
yellow here, it indicates there were no Republican victories in
these adjacent precincts.
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Yesterday I was looking at Forsyth. I also counted
precincts that were not just abutting the boundaries of District
12, but if there was a precinct like the ones in yellow on
Exhibit 40 and there was a precinct next to it, that might have
also, in this exhibit, in fact, indicated it was a Democratic
performing precinct on the 1997 race.
For example, I counted that as a precinct that could
have been assigned as a Democratic precinct by taking both of
the precincts and putting them in the 12% District.
Q So these maps, they don't show the voting performance
of precincts beyond those that immediately touched the edge of
the district.
A. It does not show beyond nor does it tell you what the
percentage is. We don't know whether the percentage in the
yellow precincts was 60 percent Democratic or 65
[¥250] percent Democratic.
Q. Also, do these maps illustrate whether there may be
precicnts inside the Congressional District, for example, in
connectors that have more than one Republican victory?
A. I don't believe there are any connectors here.
Q. Do they show the voting performance or behavior of the
precincts inside the district?
A. No, it does not.
Q. Is there any dispute, at least with respect to black North
Carolinians, that race and party are linked in North Carolina?
A. Well, thereare two very important behavioral indicators
that indicate that being African American precincts, one to be
a Democrat. That is, we know the percentage of African
American who happen to be registered as Democrats is very,
very high. Over the series of studies I have conducted from “90
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to “98, Democratic candidates get high percentage of African
American support, typically over 90 percent from African
American voters.
Q. Can the effects of race and party be disentangled?
A. Yes, 1 think they can. I think we have seen in this
examination yesterday and today and through the stimulation
of the partison [sic] analysis and report that it, in fact, can bc
disentangled.
[*251] Q. When these are disentangled, which one is
predominate as an explanation for the construction of
Congressional District 1 in the 1997 Plan?
A. Race is the predominate factor.
Q. When disentangled, which is the predominate
explanation for the construction of Congressional District 12?
A. Race js the predominate factor.
Mr. Markham: That concludes my questions, Your
Honor.
Q. You still have Exhibit 243 in front of you; it’s a map?
Mr. Markham: | have it, Dr. Weber.
A. Okay.
Q. I just want to be clear. You indicate that this map
shows some democratic precincts not assigned; is that correct?
A. Yes.
Q. Okay. Tell me, Dr. Weber, based on one-person, one-
vote considerations, could the General Assembly have assigned
all of those high-performing Democratic precinctsto District 1?
[*252] A. For every precinct that they chose to assign to
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District 1, they would have had to have taken one or more other
precincts out, so it’s always a calculation to take out one that is
more or less Democratic than the one you put in.
Q. So in other words, the other precincts that you were
saying could have been assigned based on that map, in fact, you
couldn't just assign any one or all of them or any one or more
of them to the district without taking something else out?
A.That's correct, yes.
Q. So you didn't intend to leave the impression that all of
those precincts should have been included in the district, did
you?
A. If I had been the architect of the plan, I would have
tested those options and I, of course, can't tell you with any
certainty whether or not anyone tested those options.
Q. That was not my question. I asked you: you did not
intend to, in any way, create the impression that the fact all of
these precincts were not assigned to the district shows
anything. ] mean, it shows something?
A. [t shows there were Democratic precincts that were not
assigned.
Q. But that's all it shows, because they wouldn't have been
based on population. If the district now is one-person, one-vote
aligned, then you can't just assign those other precincts?
A. No, but if I were doing it, I would have to test, by
taking something else out and seeing what the result was.
Q. But you didn't?
A. [ did not.
Q. In fact, you have testified that the district is Democratic
and strongly Democratic?
A. It performs Democratic, yes.
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Q. It's voting is Democratic in the various measures?
A. Right.
Q. And, in fact, if one was going to create a Democratic
district, wouldn't one take the most strongly Democratic
precincts first and put them in?
A. I think you would start from the standpoint of race
neutral principles.
Q. Well --
A. And then you would -- so, for example, as I suggested,
that there are 12 counties in northeast North Carolina that could
go into a district. After you have done that, you would test to
see whether or not you have a Democratic or Republican
district.
Q. Well, vou're talking about something else now. When
we were talking about having a map and say Democratic
precincts, you are concerned about all of these precincts {*254]
were assigned to District 1 and 12. But isn't it true that if you
are trying to create a Democratic district, you would assign the
most Democratic performing precincts?
A. But you can't -- and I'm not going to disagree with you.
Yes, you would, but you can not subordinate traditional race
neutral principles in the process of doing that. So, for example,
you can easily take all of Mecklenburg County and find a few
additional thousand people and draw. And I've seen plans in
the exhibits that suggest that's a marginally Democratic district.
Q. What would happen to the other public incumbent if
you took all of Mecklenburg County and essentially made it
one congressional district?
A. There are currently, at the present time, two
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incumbents, one Democratic and one Republican, that lives in
Mecklenburg County.
Q. Your suggestion that you eliminate one incumbent and
draw one district and see if you can draw one Democratic
district in Mecklenburg County doesn't work for the
Legislature, does it?
A. I can't speak whether it would work in the Legislature
or not. I'm speaking whether one follows race neutral precincts
to do this.
Q. As far as you are concerned, they do not include
keeping districts for your two incumbents in the county?
[*255] A. That's not one of the list of things. It's in the list
there.
Q. Sir, your testimony to the Court that a legislature is
acting unconstitutionally in violating and subordinating
traditional race districting principles if it does consider
incumbents and gives an incumbent a district?
A. No, I'm not saying that.
Q. Okay, thank you. And, in fact, in this instance you are
aware that the Legislature was attempting to create a 6/6
partisan split, essentially give six Democratic districts and six
Republican districts?
A. From reading the record, that's my understanding of
their intent.
Q. So, therefore, creating a Democratic district in the 12th
and creating a Republican 9th in Mecklenburg is consistent
with the legislators’ motive; is that right?
A. Yes.
Q. And if you are trying to create a Democratic district, six
Democratic districts, doesn't it make sense you take your most
11 HIALS a0 i
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Democratic precincts and put them in those districts?
A. No, because you have a Democratic district adjacent to
District 12. And so, as I suggested yesterday, and I believe in
answering one of the Court's questions, you [*256] would seek
to balance. You would have fewer Democrats in the 12th and
fewer Democrats in the 8th so that you would ensure that when
you have an open seed contest in 1988, the 8th would rush to
Democratic or be competitive to return a Democrat to that seat.
Q. You don't know anything about political dynamics
going on in the Legislature involving District 9 and 8 and 12,
do you?
A. I don't recall anything in the record that dealt with any
detai] about those issues, no.
Q. So you don't know anything about the concerns of
former Congressman Hefner in District 8 and where he might
want the predominate boundary line?
A. I don't know anything about what Congressman Hefner
asked.
Q. Those kinds of things may have resulted in lines that
you don't like, but they are Democratic still performing
districts, aren't they; District 12 is a Democratic performing
district, isn't it?
A. Yes, that's clear.
Q. And, in fact, aren't there six Democratic performing
districts in the '97 Plan?
A. ['d have to look at the data again to be sure of that.
Q. You only looked at 1 and 12?
[*257] A. No, I had access to the reports for all of the
districts. * It's just that they are not in front of me, so I can't
verify that for you.
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Q. Looking at as much time as you have spent looking at
North Carolina politics, if you look in the 1997 Plan you can't
tell the Court that District 5 is a Republican district?
A. I know District Five is.
Q. It's a heavily Republican district?
A. Once upon a time it was a Democratic district.
Q Is it now a very heavily Republican district?
A It's a Republican district.
Q. And District 6 is very Republican?
A. Yes, it's Republican.
Q Is District 9 and 10 a Republican district?
A Yes, but 8 was not a Republican district.
0. Eight was a Democratic district. That's one of the six
Democratic districts, isn't it?
A. It's now represented by Republican.
Q. So the Legislature made a mistake?
A. Perhaps they had something to do with the candidacy.
Q. That may be true, but you don't know what the
Legislature was thinking about when it drew the lines for the
incumbent of District 8?
A. No, I did not find anything in the record that ]*258]
indicated that.
Q. So you didn't inquire about any real world political
issues that might have been going on that might have
determined why the Legislature drew the line where it did?
A. No. I was aware that the Legislature was partisanly
divided at the time that it was drawing the plan and so there are
going to be some of those partisan issues involved, but analysis
that I did and see is one in which race predominate district in
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the construction of District 12 and District 1. After that was
done, then these other issues were brought along to be
revolved.
Q. When you crunched the data on the '97 Plan and you
concluded race was the predominate motive, you never
considered any other hypothesis other than race, did you?
A. I knew Dr. Peterson had an alternative theory at the
time.
Q. Let me interrupt you. Is the first time you crunched
your numbers -- let me interrupt you.
Judge Thomburg: Answer the question, then explain it,
if you will.
A. I need to hear the question again.
Q. When you first started crunching your number tables
two and four, which you supplied to the Court in a summary
judgment proceeding, the only thing you considered when you
determined that race was predominate was the [*259]
hypothesis of race?
A. Yes, that's true. And what | was unable to do at that
time, because we were operating under very severe time
constraints, | had just received Dr. Peterson's report. I knew
that this was going to be an issue, but I knew that I did not have
time at that time in order to explore the alternative hypothesis.
Q. My point is you already had concluded that race
predominate district and never considered the political
alternative until it was suggested by Dr. Peterson?
A. That's true, yes.
Q. Okay. Now, isn't it true that one of the reasons that
you never considered -- that you considered race was -- sorry,
I'm not ready to start asking questions. Let me start over.
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Isn't it true that you only considered race because you
believed the North Carolina computer system only displayed
racial breakdowns and did not display political breakdowns?
A. At that time I had not seen the screens for North
Carolina. I had seen the screens in Louisiana. And in
Louisiana, they did not prominently display political
information on the screen.
Q, Do you have your declaration, Exhibit 47, in front of
you; your declaration that was filed in this proceeding?
[¥260] A. Yes.
Q. Could you turn to page 52?
A. Yes.
Q. This declaration was filed in September -- well, it was
served on the parties in September of this year?
A. Yes.
Q. Just before your deposition?
A. Yes.
Q. On page 52 of Exhibit 47, could you read -- no, I'm
sorry. Let's not do that. Isn't it true at that point you indicate
that the computer screen used by the North Carolina Legislative
GIS system displays racial breakdown as the plan design is
working and does not supply political breakdowns?
A. That's my belief at the time based on the software used
in Louisiana, which is the same software used in North
Carolina.
Q. As I asked you in your deposition if you were familiar
with the North Carolina computer system, you said yes, it's the
same as Louisiana?
A. Yes.
Q. Did you ever bother to learn about the North Carolina
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system?
A. Yes, I have.
Q. Is that when we provided you exhibits showing [*261]
photographs of the computer screen?
A. No, I subsequently asked counsel to inquire on that
matter.
Q. When I deposed you, you still believed that the person
drawing the districts could only see racial data?
A. That's correct, yes.
Q. That was one of the bases for your concluding that you
only needed to look at race data, isn't it?
A. Yes. I now looked at the screens. I can see it's very
inconvenient to explain political data, much more convenient
to display racial data.
Q. But you were -- this was not correct and you based your
whole -- you based your reasons -- excuse me. You were not
correct about the computer screens in the data available to the
General Assembly?
A. That is correct, yes.
Q. In Tables One to Four in your Exhibit 47, you found
that race predominate district because the portions of split
counties and towns were more heavily African American,
which assigned to District 12 or district 1 and more white when
assigned to an adjacent district?
A. That's part of the inference, yes.
Q. Haven't you also testified that African Americans are
probably the most reliable Democrats?
A. Yes.
[#262] Q. And they register and vote heavily as
Democrats?
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A. Yes, that's true.
Q. I think percentage you have been using is 95 to 97
percent?
A. As registered Democrats, yes.
Q. Okay. Doesn't it follow then that the assignment of
high African American -- if you find the assignment of African
American precincts District 1 and 12 is not inconsistent with a
political motivation, 1s it?
A. It's inconsistent, as some of the white precincts are
Democratic as well.
Q. Are the white precincts as heavily Democratic?
A. No.
Q. In terms of saying the most Democratic heavily
precincts, it's not inconsistent with political motivation, is it?
A. If the goal, as I believe the goal to be, is to create a
district with as large a percentage African American
population, as large a Democratic percentage as African
American, that's not an inconsistent conclusion.
Q. I's also not inconsistent with a conclusion that politics
predominate district, is 1t?
A. It is inconsistent if you assign all of the majority
African American precincts to either District 12 or District 1
and then you don't assign certain Democratic [*263] precincts
to it. The theory would be that if you are going to assign and
create Democratic districts, then you would assign Democratic
precincts.
Q. But, Dr. Weber, your Tables One to Four do not pick
and choose between precincts. You just said if you don't assign
particular white precincts, your table does not distinguish
whether a white Democratic precinct is right next to District 1
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or is somewhere out there in the county somewhere; isn't that
night?
A. No. I know that because of the maps, but Table One,
Two, Three and Four is about split counties and split cites.
The precincts are dealt within table five.
Q. That's right. But your split counties -- all right. let's talk
about table five. There you are, you have after American
precincts, you show where they are assigned to the different
districts?
A. Yes, ma'am.
Q. Isn't it assignment of the heavily Democratic precincts.
Wouldn't you get the same Table Ffive if you -- excuse me.
Wouldn't you get the same Table Five with the racial
breakdown if what the Legislature did was assign a heavily
Democratic precinct?
A. You might at the top have the same precincts. As you
get down further to the middle of the table, you would have
deviations from the pattern of racial assignment [*264] versus
political assignment.
Q. Are you talking about Table Six now?
A. No, I'm saying if one were to have put the political data
into Table Five as well as the racial data and then you sorted
the table based upon, say, the 1990 Gantt/Helms race, there
would be some precincts at the top that would be the same in
both tables. But as you go down in there, you would have
some Democratic precincts that would be higher in the
Democratic table versus those that are in the racial table.
Q. But you still would have created a Democratic
performing district and you would have started with your
heaviest Democrats or most loyal Democrats?
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A. If you had chosen to do that, there are adjacent areas in
Forsyth, Guilford and Mecklenburg County that are
Democratic that are not assigned to District 12.
LE
[¥269] Q. Your tables one through five, where you are
looking at the assignment of African American precincts and
other precincts, it would be fair to say that's purely [*270]
circurnstantial evidence, 1sn't it?
A. I don't consider myself an expert on evidence, but
Iheard that term used to describe the kind of work that I'm
doing, yes.
Q. Well, it could be when you look at your data, you might
see aracial split on the raw numbers. That's what some of your
data is showing, right?
A. Yes.
Q. It could be there's a non-racial motive for a split county
or split precinct that wouldn't be reflected in your data; isn't
that correct?
A. There are some counties in Table Two, for example,
that I would assert are not racial, but they are not assigned to
District 12 or 1.
Q. If you don't add that extra piece of information that
those are county lines that are dividing those towns, then you
could just conclude that race predominate district?
A. No. I did put an asterisk in Table Three and Table
Four whenever the county lines split the community, and that's
noted in that data base. For example, best example is Rocky
Mount.
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Q. And you did -- you took that information and you put
those stars on your table. But that's not something you would
know when you had just taken your tables and run the data?
[*271] A. No. All of this has to be done in conjunction
with maps. You can't address this without the maps that you
are using.
Q. Well, if there was direct evidence and testimony that a
particular town was split so that a military base could be put
into a particular district, that wouldn't show up on your tables,
would 1t?
A. No, it wouldn't. I'd have to go to the record to know
that took place.
Q. But that would defeat a racial interpretation of your data
for that town?
A. No. My experience in terms of how military bases have
been dealt with in congressional redistricting suggests that
typically Democratic incumbents want military bases so that
they can have nonvoters in their districts, and I speak of that as
a Democrat.
Q. What if I told you that military base was put into
District Three, which is a Republican district, with the intent of
the Legislature to keep a Republican?
A. It's a marginal Republican district, but the overall
pattern that I have seen around the country is Democratic
incumbents want --
Q. That overall pattern does not fit the facts in North
Carolina.
A. In that particular one case, it does not fit that [*272]
fact, no.
Q. But then your data tables don't reflect any of the real life
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decisions made by legislators such as that, do they?
A. No. It reports the data as the decision was made and
adopted and precleared by the Department of Justice.
Q. Now, I think your data does not go quite that far, but it
merely reports there are some racial divisions from which you
concluded race predominate?
A. That's correct.
3. But direct evidence could show that any number of
those divisions had nothing to do with race?
A. It's possible for that to happen, yes.
Q. For purposes of your analysis, you don't need to know
or care to know?
A. No. I do -- again, | read the record and if the record
speaks to it, I know it. Ifthe record doesn't speak to it, [ wasn't
personally present always here in Rleigh when the plan was
adopted. [ wasn't sitting by the computer watching the man
move the mouse.
Q. Youdon'tknow anything about North Carolinapolitics?
A. I would submit that's not true.
Q. Well --
A. You could probably stump me with some trivia, [*273]
certainly.
Q. I certainly would not care to stump you with trivia, but
you don't contend that you know the political issues that were
before the legislature when it drew the 1997 particular ones
relating to particular incumbents?
A. I don't know the gambit of all the issues, no.
Q. You don't know the House was controlled by the
Republicans and Senate controlled by Democrats?
A. That's true, and [ know that. How would I say -- I know
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there was concern with preserving the two African American
majority districts. It's evident in the '97 Plan that that concern
was met.
Q. You didn't see any concern by the Legislature. The
plan was to maintain a partisan 6/6 split?
A. Did not result in a partisan 6/6 split.
0. Based on the performance data. the districts were
supposed to be a 6/6 split, weren't they?
A. That's my understanding, yes.
Q. You looked at all the performance data?
A. Yes.
Q. You looked at the ncec data?
A. Yes.
Q : Wasn't there a democratic performance number for each
of the 12 districts?
A. Yes, there 1s.
[¥274] Q. And isn't it also true that based on, say, the
NCEC performance data that there would be at least six
Democratic districts?
A. I'd have to confirm that, again, because | don't have that
in front of me.
Q. So you only cared that two African Amencan
incumbents had safe Democratic districts and you didn't bother
to look to see if what the Legislature was saying was (rue,
whether or not, in fact, it preserved a 6/6 Democratic split for
Democratic incumbents?
A. I can look at it, but I don't have the data in front of me
to confirm it.
Q. Since that's the Legislature's -- since what the
Legislature is saying, they were drawing districts based on
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politics, wouldn't you have looked to see if, in fact, that was
true?
A. Yes. I can't confirm it for you because I don't have the
data in front of me.
Q. But you do remember the racial data. You do
remember?
That 1s so stark. It stands right out.
And the political data is not as stark?
No.
I thought you said these were very safe districts?
There are probably seven or eight that are quite [*275]
Seven or eight are quite safe?
Yes.
Are a number of those Republican?
Some of them are Republican, yes.
: Do you think if the Legislature, if the members of the
House thought it was not at least six Republican districts that
they would have agreed to the plan? You are a political
scientist?
A. Right.
Q. I mean, doesn't common sense say that somebody
thought in the House of Representatives of North Carolina that
Republicans were to get six districts?
A. I suspect that was the goal, yes, to get six districts.
Q. And as a political scientist, you would say that the
Democrats felt they made their best efforts to create six
Democratic districts?
A. 1 doubt whether or not they would say they made the
best effort.
117 WIESE SON
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Q. As a political scientist --
A. I can only assess it from hindsight now because of what
happened in the '98 election. Again, several of those districts
were not even drawn in '97, because the '97 12th District and
adjacent districts had to be redrawn [*276] so the '98 election
was conducted in somewhat different districts in the center
Piedmont area of North Carolina.
Q. You keep wanting to talk about District 8. Isn't it true
the incumbent did not run in 1998 in District 8?
A. That's correct.
Q. Did the Legislature, to your knowledge, know when
they drew the 1997 Plan the incumbent in the 8th District did
not intend to run or would not run?
A. My understanding his announcement came in early
January of 1998. I may be wrong by a month or so, but I
believe that's when he formally announced he was not going to
Tur.
Q. And since he was running as an incumbent, as a
political scientist, do you infer that the Legislature, the
Democratic party of the legislature thought that District 8
would remain in Democratic hands?
A. Yes. But that district was not used in 1998. It would be
reasonable for them to expect that the district that they drew,
which was invalidated as a result of invalidating District 12,
might have been a Democratic district.
Q. So then you keep referencing the fact that a Democrat
lost in the 8th District, then all of your references that you have
been making to the 8th District and the Democrat losing are
irrelevant since they don't relate to the 1997 [*277] plan?
A. Well, there were counties of overlap, but there were
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some counties that were --
Q. I wondered why you kept talking about the Democratic
loss in each district, but it was under the 1998 Plan, so it
doesn't matter anyway.
You did a number of analyses about the District 1 and
12 to determine that they were safe Democratic districts; is that
correct?
A. Yes, but I also looked at participation and took that into
account.
Q. I'm just talking about safe districts.
A. Yes.
Q. You did that?
A Yes.
Q. And you did not look at the other ten districts yourself.
You did not take the same political data and run the same
numbers to determine anything about the safeness of the other
ten districts; is that correct?
A. That is correct, yes.
Q. [s that because you were only concerned with whether
or not the two districts that had African American incumbents
were safe?
A. No. It was really a resource issue. It was time and
resources.
[278] 0), Okay. Now, a few moments ago, am I correct
in understanding, as a political scientist, I guess, or personally,
and you can answer it either way, you disapprove of the general
tendency of legislators to create noncompetitive districts?
A. That is as a political scientist, yes.
Q. As a political scientist?
A. Yes.
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Q. Is that because you don't believe the country or voters
need a lot of safe congressional seats?
A. No. The theory is different. It is to say if voters want
to have an opportunity to go to the polls in general elections
and technically throw the rascals out, if the rascals have drawn
the districts in ways that it's virtually difficult to do that, why
should a person vote? You might argue with a person, just
don't bother to show up and vote because it won't matter,
particularly if you are in the minority party.
Q. In the real world, the Legislature, this interest in not
having -- excuse me, I have my double negatives.
In the real world of the Legislature, they are not
interested in having all the seats competitive; isn't that correct?
A. Well, my experience in studying this across the country
and having been advising state legislators on [¥279] occasion
on these issues, I generally observe that politicians want to
have safer districts rather than competitive districts.
Q. And that's not anything based on race, is it?
A. Well, race can be used to accomplish that.
Q. But you said that's a general tendency?
A. Whether you are talking to an African American
member of the Legislature or white member of the Legislature,
when they are talking about their own seats, they are very
interested in that when doing congressional districts they take
that into account as well.
Q. I believe, consistent with this, when you gave your
deposition, you didn't think much of the idea of a legislature
maintaining a core of an incumbent's district?
A. Well, if it means that maintaining the core means you
are going to ignore race neutral principles, then you have to put
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aside the notion of preserving the core. Seems to me
preimminent is this notion of applying race principles in the
area of redistricting. If you don't apply the race principles and
you ignore them and they do things like preserve the core
history, that's suspect.
Q. For the Legislature, when it is preserving the core of a
district, 1s 1t also looking at trying not to disrupt the election,
the -- is the Legislature looking at not trying to disrupt the
relationship of an incumbent and its [*280] voters?
A. Generally incumbents do not want to disrupt this
relationship. Whatever they end up -- whatever districts they
end up with, they tend to, in the end, like and wish to preserve
as long as they can. That's been an observation over decades
and decades of the study of redistricting.
Q. And there are benefits to the incumbent because he
knows his voters?
A. Yes, of course.
Q. But they also know their incumbent?
A. But if they happen to be in the minor pattern, they
might be marginalized or submerged within a district drawn for
partisan of the other party and, in effect, they don't have as
much opportunity to throw the rascals out if they want to throw
the rascals out.
Q. So preserving the core of the district 1s something that
legislators practice, and it's not necessarily racial at all; isn't
that true?
A. That's true. It's practiced every time this occurs.
Q. And that's not only traditional, but probably historical
traditional redistricting criteria?
A. [t is historical and traditional, but it is not race neutral.
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Q. But it's not necessarily racially motivated either, [*281]
is it?
A. Not necessarily, no.
Q. Dr. Weber, would it be fair to say that in the
redistricting process, you don't really trust leaving redistricting
to the legislators?
A. I think that's a conclusion that I have reached and I have
said it in my academic writing.
0, In fact, didn't you tell me that you thought that the best
results, what happened in Louisiana and Georgia after their
congressional districts were overtumed, that they let the federal
Judges draw the districts?
A. Yes. The federal Judges in those two states happened
to draw what I think are the fairest districts for the 90's.
Q. Now, in your report, you've talked some about the
1980's plan, the congressional redistricting plan?
A. Yes.
Q. I believe you went so far as to say that you felt that that
should be the benchmark for looking at the '97 Plan; is that
right?
A. It should be the benchmark for all activities in the
1990's until there's a constitutional plan adopted. That was the
last constitutional plan.
Q. But isn't it true using the 1980's plan as a benchmark 1s
a little difficult because it only had 11 congressional districts?
A. For the purposes of simply population, it would be a
difficult benchmark to follow, but for purposes of assessing the
race ncutrality of that plan versus the race consciousness or the
race predominance of the 90's, it's a very appropriate
benchmark.
117 WIJ3dS 98 ON
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Q. And isn't it true that the legislator in the 90's -- and this
includes in 1997 -- they bad to put that 12th District
somewhere; 1sn't that correct?
A. Yes. There has to be a 12th District because population
mandates it, yes.
Q. And didn't you tell me previously that the greatest
population growth between the 1980's and 90's in North
Carolina was the Triad and Piedmont area from Charlotte to
Durham?
A. Yes.
Q. So it makes sense, if you have to put another district in,
put it there?
A. Yes. That's exactly what the Legislature did in the 1981
Plan, put a district in the counties between Charlotte and
Winston-Salem.
Q. As a matter of population, that's not unconstitutional to
put the district there?
A No. At that part of the state at the time, jt was a race
neutral plan.
[*283] Q. And in 1997, because of the population in that
area, it would still make sense to put a district in that Piedmont
area?
A. But you do not need to put a district between Charlotte
and Greensboro, Winston-Salem.
Q. Well, in 1997, 1s it necessary to disrupt all the other
districts even more? Why not put your Democratic district
there?
A. The disruption occurred in 1992 and continued for '94
and '96.
Q. Is there anything unconstitutional that you know of
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about the desire to put a Democratic district, make a
Democratic district the 12th District Democratic?
A. To make it Democratic, no, there's nothing.
Q. And, in fact, the legislature succeeded in keeping and
making the 12th District Democratic?
A. Yes, less Democratic than the 1992 Plan, but it 1s still
Democratic,
Q. Well, they had to cure the constitutional defects, didn't
they?
A. Yes.
Q. It's not over 50 percent African American district, is it?
A. No.
Q. By putting a Democratic district there, the [*284]
legislature was able to meet its goal of maintaining a 6/6
partisan balance in the congressional districts?
A. Alternatively, it could have done as 1991 and put all of
Mecklenburg County together as an adjacent area had a
marginally --
Q. What would that have done to the Republican in District
9 and Democrat in District 87
A. You would have a very competitive race with one of
them losing their seat.
Q. Wouldn't you say that the incumbents who would be
affected by such a plan might have had strong words and
concerns with the Legislature?
A. Again, the question is, is it constitutionally -- guess if
it's not constitutional then the whole question of incumbent
protection has to go away when constitutional questions arise.
Q. Well, Dr. Weber, it's not unconstitutional for a state to
draw a districting plan that's balanced 6/6, is it?
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A. As long as they do it in a race neutral way and don't
support a traditional race neutral principles.
Q. And drawing a 6/6 partisan balanced district would not
be a democratic gerrymander, would it?
A. It would be a bipartisan gerrymandering in that sense.
[*285] Q. So -- but vou think the Legislature to obey some
neutral redistricting principles had to disrupt the Republican in
District 9 and the Democrat in District 8 and draw a different
district there. They couldn't draw this district?
A. That's correct, yes.
Q. Now, turning to your Table 6, which is in your Exhibit
47.
A. Yes, ma'am, I'm there.
OQ. Did you do an Exhibit 309 that related to those tables or
am | in error?
A. I believe Exhibit 309 so related to Defendant's Exhibit
434 or maybe 435 -- no, 435.
Q. Let's look at Table 6, Exhibit 47 starting at page 68.
I think when you testified about this table, you were
talking about this shows some Democratic precincts that are not
put into District 12; is that correct?
A. Yes.
Q. Okay. Now, this table does not take into account, does
it, where any of these precincts are located?
A. No, I have to have the maps to go with this to do that.
Q. When you sat there on the witness stand and added up
the number of precincts of Democratic precincts not put in
[*286] the district, you did not intend to imply that al] of the
ones that you listed here that are high-performing Democratic
precincts could, in fact, geographically even go in the district?
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A. No, I later did that with the maps.
Q. Did you -- in fact, when you looked at the map, did you,
in fact, correlate them with the numbers you added up here?
Can you take the numbers -- when you added up here, you said
there are eight precincts here that are highly Democratic that
should have been in. Did you go to the map and find those
eight precincts?
A. I went to the map and found the precincts and came
back to the tables and looked at the tables.
Q. You found the eight exact precincts?
A. For Forsyth Ccounty, I did.
Q. Well, then you did determine that all of those precincts
geographically couldn't go in the district, didn't you? If you
went and looked at the map, isn't it true that whatever you
added up here, you went and looked at the map, you would find
al] of those numbers you added up could not geographically go
into the district?
A. Not all of them, yes.
Q. And you didn't do a chart for us to say how many could
or couldn't?
A. No, I didn't.
[*287] Q. You added up numbers, said look at all the
Democratic precincts based on the chart that aren't in the
district?
A. That's correct.
Q. But nothing to say geographically they could go in the
distnct?
A. No.
That doesn't correlate necessarily with the numbers you were
informing the Court about, does it?
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A. No. Those were based on the map.
Q. I'm talking about you sat there on the stand and added
up, said you go here and add all of these Democratic
performing districts. You have x number that are not in the
district?
A. That is correct, yes.
Q. Allright. Isn'tit also true when vou look at thesc tables
and you add them up, say these highly performing Democratic
precincts were not put in the district. Isn't it true that you can't
fit all of these Democratic performing districts in the district?
They would bust one-person, one-vote?
A. You would have to take other precincts out. If you
focus on Table 6 on Mecklenburg County, you could put all of
Mecklenburg County in one precinct.
Q You don't know whether the Legislature would have to
take out a higher Democratic performing precinct just to [*288]
put in one of these that you thought should go on in?
A. You would have to make a choice which one should go
out and you have to do that every time you do this.
Q, That choice could be based on Democratic
performance?
A. Could be based on Democratic performance, yes.
Q. Your chart here is showing some higher Democratic
precincts were not put in, does not tell you that the decision
was based on race, it may have been based on one-person,
one-vote?
A, If you look at the rest of the table, all the majority
African American precincts are put in District 12, every one of
them.
Q. But you already testified those are the most Democratic
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performing precincts in North Carolina?
A. Yes, they are.
Q. And doesn't it make political sense to put the most
Democratic performing precincts into District 12 if you are
trying to create a democratic district?
A. You can draw Democratic districts without putting all
of the African American majority precincts into the district.
Q. Without disrupting all the Republican incumbents?
A. Yes.
Q. I'm sorry, I don't think I ever saw that plan.
A. As [ answered the questions on direct to Mr. Markham,
[*289] you can take Precinct 877 out and still have a
Democratic performing district in Mecklenburg and all the rest
of the counties. You can take other African majority precincts
out. That's what happened in the 1998 Plan. They took all of
Guilford County out and it's still performing Democratic.
Q. What if the direct evidence showed that the south
eastern side of Mecklenburg that's in District 9 -- that's
connected to District 9 by Precinct 77 -- what if the direct
evidence were the incumbent in District 9 would want those
precincts in the district?
A. In this hypothetical, we would be taking 77 out of 12
and putting it in 9, so you would have a broader corridor
between the eastern part of Mecklenburg County and the
western part of Mecklenburg County and you just substitute
another Democratic precinct from somewhere else in the
precinct to go in 77.
Q. You, of course, have no constraints based on any
incumbents or legislator's wishes about how you draw the
district, do you?
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A. Right. 1 know this, there's no incumbent who has a
residence in Precinct 77. So that would not --
Q. There's not anybody who lives in Precinct 77?
A. Yes. There is, there's a substantial population.
Q. Not the part assigned to District 9, okay?
[290] A. Yes.
Q. Now, Dr. Weber, earlier in your testimony -- or
yesterday in your testimony, you referred to Exhibits 265,
266 and 268 I'm not asking you to pull them out, which were
thematic maps of Forsyth, Mecklenburg and Guilford
County. Do you recall these maps?
A. Yes, ma'am, I do.
Q. You were counting adjacent precincts that you
contended should have been included in the 12th District, as
I recall?
A. That's correct.
Q. Because they were high performing in that particular
election?
A. That one single election, yes.
Q. Your counsel had you look at Joint Exhibit 140
[*291] earlier today. Excuse me, 140. You still have exhibit
140, 141, 142 up there?
A. No, [ don't.
Q. Okay.
Ms. Smiley: May I approach the witness, Your
Honor?
Judge Thornburg: Yes.
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By Ms. Smiley:
Q. If you would look at Joint Exhibit 142. I'm sorry,
there may be an index in the front.
A. Yeah. I'm there now, okay.
Q. All right. Now, I believe you testified that what this
map shows 1s the elections in al) three results that are on the
North Carolina computer system are tabulated, and I believe
the data 1s right behind as part of the exhibit, where that takes
cach precinct that goes around Mecklenburg County and it
has the election results and the three elections that are on the
North Carolina computer data base; is that right?
A. That's correct.
Q. It tallies the data -- tallies up the number of
Republican victories; is that correct?
A. That's correct.
Q. And Exhibit 142 is the thematic map showing the
Republican victories in the precincts that surround that
[292] portion of Mecklenburg County in District 12; is that
correct?
Ai That's correct.
Q. And correct me if I'm wrong, but in terms in
immediately adjacent precincts it looks like there's only one
Democratic performing precinct that immediately abuts
District 12 in Mecklenburg County. Is that how you would
read this map?
A. Yes. I see one precinct in yellow. It's Charlotte
Precinct 10.
Q. And would you infer, because that one precinct is not
in District 12, that there's a racial motive about that district
line where they put that precinct in the District 12?
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A. No. My inference is there were other precincts
carried by Harvey Gantt in 1990 against Senator HelMs. I
would put all of those precincts in there because that's the
most recent and best indication of democratic performance
for African American candidate in Charlotte Mecklenburg.
Q. If you were trying to recreate a partisan Democratic
precinct and not a precinct for African Americans, would you
just use the Gantt election?
A Yes, because I'm particularly concerned about the
accuracy of the '88 data for those two races in [¥293]
Charlotte/Mecklenburg.
Q. But that's your concern about the accuracy for that?
A. That's correct.
Q. In your review of the record and depositions and
other things, have you heard that, in fact, the Legislature,
when it wanted to look at Democratic performance, tended to
look at the Court of Appeals race and the Rand/Smith race
because they were more truly indicative of Republican
Democratic strength?
A. ] don't remember particularly where they said yes it
was the '88 race or '90 race. All I know is I have concerns
about the reliability of the '88 data. Perhaps those concerns
were never expressed to the Legislature.
Q. But do you have any information that the Legislature
did not rely on political data in its computer data base
because it had the kind of concerns that you had about the
data?
A. No, I do not believe they were told those concerns.
Q. But you, in fact -- do you, in fact, know whether or
not they used the data that's in the data base with or without
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the concerns you have?
A. I know it's in the data base and I believe Mr. Cohen,
in his deposition, indicated that the data were sometimes
used. Now, whether they used it in this part of drawing the
district, I don't know.
[*294] Q. Well, you want to draw inferences based on
the fact that you think the Legislature should have used that
1990 election. But if that's not what they used, isn't it better
to look at all the data that they used?
A. The best data, in my opinion, is the 1990 Senate race.
The 1988 races are less reliable.
Q. And that might not comport with the reality over at
the Legislature when it was trying to draw districts?
A. I don't know what they did.
Q. Okay. But based on this map it looks like the
Mecklenburg County -- they did a pretty good job of finding
-- of staying within a city of Republicans?
A. If you accept the accuracy of the 1998 data. If this
1998 data is wrong and these other precincts are Democratic
in '88, if you could properly allocate them from the '88
precincts to the '90 precincts, I would be more convinced.
Q. That's the problem with experts and legislators, they
use the data that's in the machine.
All right. Now, turning to the other two maps, let's
start with Guilford County, which is Exhibit 141. Once
again, you do find that there is a strong wall of Republicans
going around the vast majority of District 12 in Guilford
County?
A. There are four precincts, according to your data, did
[*295] not go Republican in these three races.
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Q. My question was the vast majority are --
A. Well, the vast majority were the three Republican
victories, two Republican and one --
0. -- there are four precincts that didn't get included?
A. That's right, and there are additional ones adjacent to
those. Again, in my map suggested they might have been
added as well as even though they are not immediately next
to District 12.
Q. But the problem with your thematic maps is it doesn't
take into consideration things like maybe physical
boundaries, street boundaries?
A. Neither does this map.
Q. Well, you don't know in effect whether or not these
precincts were excluded by a major thoroughfare in Guilford
County, do you?
A. No, I don't.
Q. You also don't know if there were other
considerations dealing with an incumbent in Guilford
County?
A. I can't imagine why a Republican incumbent would
want a Democratic precinct; perhaps he did.
Q. If the incumbent was from the city of Greensboro;
might he want Greensboro precincts?
A. Equally he would probably want marginally
Republican [*296] precincts.
Q. Then there's the issue of one-person, one-vote, isn't
there?
A. Yes. That's why you take out precincts and put
precincts in.
Q. Exhibit 140, the thematic map of Forsyth County,
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there is a Republican wall. Every one except on the
left-hand side of District 12 in Forsyth County; is that
correct?
A. Yes.
Mr. Markham: I object to the Republican wall. We
said the internal precincts are not colored. I don't believe it's
clear whether or not some of the ones in the connector may
have voted Republican on all three occasions.
Judge Thomburg: We have no problem with
understanding what they are talking about. All right, go
ahead.
By Ms. Smiley:
Q. I believe you pointed quite a bit to these Democratic
precincts that were not included in the 12th District?
A. Yes.
Q. Now, do you know of any other reasons in the
Legislature, that are not based on this kind of data, why those
precincts might not have been put into the 12th [*297]
District?
A. I remember reading in the record Congressman Burr
wanted as many Republicans in his district as possible, since
that's his home area.
Q. Do you remember anything about where he lives?
A. No, I don't know precisely where he lives. I think
somewhere in the record there's indication of the precincts,
perhaps in the stipulations, but I don't know exactly where
Congressman Bur lives,
Q. So there might be some nonpolitical and nonracial
reasons that explain that group of yellow precincts?
A. He wanted Winston-Salem precincts and he was
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willing to take Democratic Winston-Salem precincts, even
though this was a Democratic plan.
Q. So the Democrats, in order to come 10 a compromise
with the Republicans in the Legislature, didn't get everything
they wanted?
A. I don't remember seeing any of the earlier plans that
incorporated any of these precincts. I don't believe these
precincts were involved in District 12 early in the process of
'06 or '97.
Q. One of the real world reality, when you say a
Democratic precinct is not included, there may be factors
such as the Democrats couldn't get every Democratic
precinct for in dealing with the other?
[*298] A. I don't know that.
Q. That's right. You just can't know that from the data
you are looking at?
A. But as a political scientist looking at the data, the
best partisan explanation would be to take the partisan
precincts.
You referenced the Pildes and Niemi article?
Yes, ma'am.
About compactness?
Yes.
Isn't it true that Pildes and Niemi, in terms they
created these dispersions and compactness measures, and
you have an article in here where they compared
congressional districts nationwide; is that correct?
A. Yes. They did not create these. These were created
by persons at a company called Election Data SysteMs.
They made these available to Pildes and Niemi and also, in
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some of the discussions, in my report I reference a David
Huckabee at the Congressional Research Service. He had the
same scores made available to him.
Q. Dr. webster, you read his report and he got numbers
like Pildes and Niemi in North Carolina districts?
A. For the old districts, similar numbers, yes.
QQ. It's fairly accepted in terms of if you are going to do
the mathematical measures of compactness, these are [#299]
formulas experts share and people have the data and you
share that data?
A. It's generally accepted the two most commonly
reported upon are the dispersion and compactness.
Q. Isn't it true Pildes and Niemi established a benchmark
for determining whether a district is compact or not under
those measures?
A. They suggest there's a score below, which you want
to become concerned about the geographical compactness of
the congressional districts.
Q. Although they would not conclude just because it fell
below that score it was necessarily not compact?
A. No, they suggested it raises the flag. The
investigator would want to go into other information and
determine what Was it that caused the district to be created.
GC Isn't it true that District 1 is above that benchmark on
both perimeter and dispersions measures?
A. Yes, it is.
Q. So Pildes and Niemi would not raise any red flags?
A. For District 1, that's correct.
Q. Now, you talked -- you also showed us an article and
looked at the financing of the Republican candidate in the
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DEPOSITION TRANSCRIPT EXCERPTS OF RONALD E. WEBER,
PH.D
[*34] Q So as a political scientist, you do believe that
county lines override Section 2 of the Voting Rights Act?
Mr. Markham: Objection to form; calls for legal
conclusion.
Q As a political scientist.
A I think these are factors that the court would have to
take into account, and the question about whether or not there
is a violation of Section 2 would depend more upon the
numerosity and concentration of the minority group, you know,
the cohesiveness of the minority group, and of course the [*35]
third element, the cohesion of the white voters.
Q And if that exists, as a political scientist do you believe
that a county line can be preserved and you could ignore a
concentration of cohesive African Americans?
A You could then cross the county line in order to create
a district; yes.
Q And in fact have you--in any of the cases where you
have been involved in Section 2, have you ever had to give
advice to a governmental entity that it needed to cut county
lines or other political subdivisions in order to create a
Section 2 district, or has that just never been part of what you
have to do in a Section 2 case?
A I have had to evaluate proposals that did that.
Q Section 27?
A Yeah; proposals by the plaintiffs typically to do that,
and so that--1 have had to take that into consideration.
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Q And on occasion have you had to give your
governmental client an opinion that in fact they might have to
split some jurisdictional boundary or governmental boundary?
Mr. Markham: Again, objection as it calls for a
legal conclusion.
Ms. Smiley: No, I am asking him a fact question.
By Ms. Smiley:
Q Have you on occasion so advised a governmental
entity?
[*36] A Yeah. I think back in--way back in the early
Clark v. Edwards case where we had multiparish judicial
districts and where, you know, the evidence suggested that
there was a sufficiently large and geographically concentrated
African American population and there was other elements to
the proof, ultimately the districts that I drew crossed some
parish boundaries.
[*36] Q And who did you--who were you retained by in
those [*37] cases?
A Plaintiffs in Hays, plaintiffs in Johnson, and plaintiffs
in Shaw.
Q And were the plaintiffs white plaintiffs in those three
cases?
A In Hays they were mixed, two white, one African
American and one Asian American. Johnson, don't remember
all of the plaintiffs. I do remember Davida Johnson, the first
named plaintiff, is white. And as | recall, I believe the
plaintiffs in Shaw were white--are white.
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[*69] Q And I believe in that declaration you addressed
that question looking at county splits and town splits; is that
correct?
A County and municipality splits; yes. I did not have time
to do the precinct splits at that point. There were only two
precincts in that geography. There are more precincts in
today's world that are split than those two.
% RK
[*70] Q Did you consider any other hypothesis aside
from race as a predominant factor?
A No. Ihave always found race to be the most powerful
explanation for bizarre districts.
* & *
[119] Q And what do you mean by electorally
competitive?
A Meaning to say that either party would, absent
incumbency, have a reasonable opportunity of winning the
district.
Q And what do you consider a reasonable opportunity?
A Meaning that when the candidates file and they raise
their funds and they go to the voters that they are going to be
sitting on pins and needles until the election returns are over.
Q Have you put a number?
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A Oh, yes, of course.
Q And---
A (interposing) The criterion that I use in all of my work
in political science is that a district that is 60 percent or more
in favor of one party--60 percent Republican or 60 percent
Democratic--is uncompetitive. A district that.is less then 60
percent, 59.9 and lower, in the return is competitive.
Q When you said fair you talked about leaving aside
incumbency?
A Well, yes. Incumbency can affect the relative
competitiveness of a district.
[*120] Q So if you have a district that is over 60 percent
and the elections reflect incumbent voting totals, then would
you still--would you say a district is unfair based on election
results that are---
A (interposing) No.
Q ---based on incumbency or do you have to use a
different number?
A No, we don't have to use a different number. What we
just know js that it is--it is highly unlikely that the challenger,
whoever the challenger might be, will in fact make an effective
challenge--that is, be able to in fact unseat the incumbent.
There are a few occasions in the United States where
districts in the previous election were greater than 60-40 in
difference where in the next election an incumbent was
unseated, but they are usually in the context of scandals or
something like that.
Q Well, do you put a number--I mean, if you put a--you
say anything over 60 percent you say is noncompetitive. Do
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you put a number in terms of what percent you give to an
incumbent?
A No, because it is going to vary from district to district.
Q Well, do you have even a--well, do you analyze? Do
you compare elections to determine whether or not you can put
[*121] a number?
A You can go through and look at the elections and make
some assessment of the effectiveness of a challenge. Typically
incumbents do not fact effective challenges. There are only a
few districts in the country that are ever effectively challenged.
Q Well, I just--I am just trying to figure out--since some
of the election data I think that you are relying on here does
have incumbents, J am trying to figure out how you determine
that a district is not competitive when you know the issue has
to do with incumbency.
A Well, that is where you have the data for all--as many
elections as you possibly can so you can in fact have some that
involve incumbency and don't involve incumbency. I mean,
unfortunately in--I believe of the statewide elections that I am
looking at I think only perhaps the '72 election with Mr.
Campbell may not have been an incumbent election. | am not
sure, but I don't believe he was an incumbent that year. But I
think all of the others involving Mr. Helms or the one most
recently with Mr. Faircloth, they were incumbents.
Mr. Markham: So the record will be clear, I
think you misspoke and said 1972 election.
The Witness: Okay; 1992. I am sory.
By Ms. Smiley:
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[*122] Q So you recognize that incumbency isa
difference, but you have not in any way tried to weight or put
a number on the incumbency advantage---
A (interposing) No.
[*122] Q Well, do you have a particular measure or
criteria for deciding whether a district is race predominant?
A It has to do again with the assignment of the precincts.
Remember, we talked about overwhelming--almost always
assigning the black precincts to the black district.
Q Well--all right; so it wouldn't matter, say, in District 12
the fact that it is not majority minority. You would still
consider that a race predominant district?
A Yes, because again, statewide it is--you know, the
statewide numbers are all in the neighborhood of 20 to 22
percent African American.
[*131] Q And do you know where the majority of that
population growth occurred?
A I think I have seen something on that in Dr. Stuart's
report, but I don't recall specifically.
Q Well, do you know anything about North Carolina and
its---
A (interposing) Well, I---
Mr. Markham: (interposing) Objection to form.
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Q ---population?
A I am not going to speculate, but I do remember the
following. That is that generally the counties in the
northeastern part of the state have been declining relative to the
growth and the growth has primarily been in the piedmont.
Q And the piedmont would be--do you know what towns
Or counties---
A (interposing) Yeah. Well, you are talking about the so-
called Triad, the urban Triad, running from Charlotte to
[*133] basically Durham with stops in Greensboro and
Winston-Salem.
Q So that is where the population growth has occurred?
A Yes, ma'am.
wh
[*135] Q But you have already agreed that that plan, the
1980s plan, would not be constitutional under the 1990s
population figures?
That 1s correct. Yes.
And this is not to be a legal benchmark of any kind?
I can't assert legal benchmarks.
Well---
(interposing) As an expert I can't do that.
Well, I agree. You are not a lawyer, but you cite cases
throughout this opinion--I mean, throughout this report, and I
O
P
O
P
L
O
»
just wondered, are you using that term "legal benchmark” in a
legal sense at al]?
A I think it could be construed that way.
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