Memo from Lani Guinier to Napoleon Williams

    State of North Carolina 

MICHAEL F. EASLEY Department of Justice 

ATTORNEY GENERAL P. O. BOX 629 
RALEIGH REPLY TO: Frances S. Carraway, CLAS 

Special Litigation 
(919) 716-6900 

FAX: (919) 716-6763 

27602-0629 

August 1, 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 federal express package are the following documents for your review. 

We still are not firm on the headers and of course the page numbering, but we would appreciate 

being notified of any other edits you might note. 

DOCUMENTS SENT 8/1 

Trial Testimony of Sen. Cooper (this is taken directly from the Jurisdictional Statement 

Appendix with your designations having been added) 

Trial Testimony of Rep. McMahan (this is taken directly from the Jurisdictional Statement 

Appendix with your designations having been added) 

Deposition Transcript Excerpts from Baker 

Exhibit 23 

Exhibit 24 

Exhibit 58 

 



Seth Neyhart 

August 1, 2000 

Page 2 

  

Exhibit 100 excerpts: 

Introductory material 

97C-28F-4E(4) 
97C-28F-4F(2) 

Exhibit 306 (As agreed upon, we have excerpted the columns for House and Senate and any 

reference that addressed only Daly.) 

According to my records that leaves the following documents to be sent to you: the 

trial testimony excerpts of Weber; the deposition transcript excerpts of Weber; Dr. Weber's 

report and tables; and the Shaw trial testimony of Gerry Cohen. I anticipate that those will 

go out to you tomorrow via federal express. 

As far as the deadlines for the joint appendix are concerned, since we are going 

ahead with the printing of that document as previously scheduled, our deadlines remain the 

same. I have received the designations in your earlier letter and will fax those additions to 
you for proofing as we get them formatted. 

I expect to hear from you as to any additional designations for the documents in this 

package by noon on Thursday. Although we have not yet completed the formatting of Dr. 

Weber's trial testimony and deposition, you do have our additional designations from my 

letter faxed to you on July 27. Since you should be able to work from that, I also expect 

them by Thursday noon. We will need any additional designations from Weber's report, 

which I will fed ex to you tomorrow, by noon on 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. That will allow us to have a more accurate page count when we begin to label maps 

on Friday. Any adjustments to disputed designations will be made once those disputes are 

resolved. 

As always, call if you have any questions with which you feel I can help. 

Sincerely, 

Cr 
Frances S. Carraway, CLAS 

CC; Todd Cox (by fed ex) 

Adam Stein (by fax) 

 



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DEPOSITION TRANSCRIPT EXCERPTS OF DON NICHOLS 

BAKER 

[*4] . .. If you would state your name, residence, occupation? 

A My name is Don Nichols Baker. I am District Director 

with the office of Congressman Melvin Watt, 12th District 

North Carolina. 

[*4] Q Did you say your title was District Director for Mr. 

Watt? 

[*5] A That is correct. 

Q What are the duties of that position? 

A We have three district offices, fixed offices, in the 

present district: one in Winston-Salem, North Carolina, one in 

Salisbury, North Carolina, and one in Charlotte, North 

Carolina, and a number of satellite offices that works out of 

those fixed offices. 

My responsibilities is constituent services, to provide 

services to the residents of the 12th Congressional District. We 

work with individuals on cases, primarily federal government 

agencies, IRS, INS, those type of issues. We also try to 

provide the residents of the 12th District with information that 

is coming from the federal government, grants--notices to let 

them know that there are grants available to them, 

municipalities, working with the municipalities within those 

cities and towns within the 12th District. 

Q How many people are in Mr. Watt's office altogether? 

 



2ja 

A We have two individuals in the Winston-Salem office, 

two in the Salisbury office, and five including myself that 

would be in the Charlotte office. 

Q And how long have you worked for Mr. Watt? 

A I have worked in this capacity since January of '93. 

[*6] Q Now, we have been notified that you are an expected 

witness at the trial which is scheduled to take place sometime 

in November. Do you have any knowledge of what you are 

expected to testify about, the general area? 

A I have worked enough years in the Mel Watt for 

Congress campaign, so I have been campaign manager and 

worked in terms of election process, trying to ensure that we 

have enough numbers to win the election. 

[#7] Q You worked in that capacity as--were you a paid staff 

person in the campaign or just a volunteer or in what capacity? 

A In '92 I was a paid staff person. In'94 I was a paid staff 

person. That is correct. 

Q And in '98 also? 

A In '98 also. 

Q And in each instance you were the manager? 

A I was the deputy manager in '92, the manager in '94, the 

manager in '98. 

[*49] Q How about in terms of newspapers? What 

newspaper advertising were you doing in the '94 campaign and  



  

3a: 

what were you doing in the '98 campaign by way of 

comparison? 

A In the '98 campaign we did use some newspapers. As 

a way to target voters we generally do not buy newspapers 

because we just don't think it is a good way to go out and make 

a direct appeal to voters. However, we did purchase some 

newspaper ads in some newspapers in the district. 

Q Like Charlotte Observer? 

[*50] A No. In Charlotte we used--The Charlotte Post 

was the newspaper that we used in Charlotte. 

Q I think I know what The Charlotte Post is, but maybe 

you can fill that in for the record. 

A It is primarily an African American newspaper. 

Q How about in Greensboro? Did you have any 

newspaper you used there? 

A In '98 Greensboro was not a part of--- 

Q (interposing) Oh, I'm sorry. How about in '94 in 

Greensboro? Was there any newspaper that you used 

predominantly then? 

A I am pretty sure, to the best of my knowledge, we did 

advertise in The Greensboro Chronicle. 

Q The Greensboro Chronicle; is that like The Charlotte 

Post basically? 

A Yes. 

Q Is there a similar publication in Winston-Salem? 

A Yes. 

Q And what is that, if I may ask? 

A The Chronicle, 1 believe. 1 don't know. I cannot 

remember the name of the newspaper in Winston-Salem. But 

there is a similar African American newspaper in--- 

 



  

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Q (interposing) And did you focus most of your 

advertising in that publication under those circumstances? 

A Most of it, yes. 

* * % 

[*S8] Q The '97 plan, would you say that was compact, 

geographically compact? 

Yes. 

Is that even more compact than the '92 plan? 

To me; no. 

It is less compact to you? 

> 
0 
P
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To me. 

% uk ® 

[*58] Q Would you say that the '98 plan is more compact 

or less compact than the '97 plan? 

[*59] A In my eyes? 

Q Yes, sure. 

A In my eyes I would say it is less. 

* fuk 

[*67] Q Would you have any preference between 

Democratic precincts that were substantially composed of--or 

[*68] predominantly composed of African Americans or other 

Democratic precinctsthat were not predominantly composed of 

African Americans? 

 



  

5)a 

A My preference would be have highly Democratic 

performing precincts both in terms of how they vote and in 

terms of the number of votes. 

Q Are there any more highly performing Democratic 

precincts in North Carolina that you are aware of than those 

that are predominantly African American? 

A Most of the highest Democratic performing precincts 

are African Americans. I have a--there are precincts that 

produces more numbers for a candidate that are not as favored 

in terms of African Americans. 

[¥*69] Q Are there any particular groups that try to rally 

behind you in organizing a campaign for--and you have 

represented a number of--well, let me put it this way. You have 

been a manager not only for African American candidates, but 

also for some white candidates, I believe you said. Was there 

any difference in the tactics that you used in the two situations? 

A Difference in terms of tactics; campaigns are pretty 

much boilerplate things, I think. I think that you figure out 

what voters that you want to go ahead and target in and then 

you work to bring those voters home. 

Q Was there a difference in the targeted voters with 

respect to the African American candidate? 

A Not really; interestingly enough, not really. We have 

worked for many affiliated organizations. We have worked for 

women, senior citizens, African American, the Hispanic 

community. Inthe campaigns that I have been involved with 

 



  

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that is kind of the target groups that we were working towards, 

keeping them involved. 

* xk 

[*77]1 Q I may have asked you this earlier, but with your 

- direct mail how do you select your targets? 

A For direct mail that is in the campaign office or in the 

congressional office? : 

[*78] Q Well, let's say in the campaign office and then 

you can tell us to what extent the congressional office uses 

direct mail. 

A Direct mail in the '98 campaign? Is that what we are 

talking about right now? 

Q In the what? 

A In the 1998 campaign? 

Q That will be fine. 

A We did polling to see exactly what the issues were that 

was on people's minds. We in turn developed mail towards 

target groups. Seniors was one of the target groups that we sent 

direct mail to. Women was a targeted direct mail. African 

Americans was a targeted direct mail. And we sent smaller 

mailers to other individual groups, organizations. 

Q With respect to African Americans that you target, how 

do you get the information as to whether a person is African 

American or in some other category? 

A In North Carolina that is part of their voting history. 

They have demographics on the voter profile in North Carolina 

so you can select whether you want white, male, or African 

American. 

 



  

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ok 

[*82] Q Are there some that you target with respect to 

race in your direct mailing without regard to party? 

A I am not sure. Can you restate that one more time, 

please? 

Q Do you have some direct mailouts--and I am not talking 

about five or ten; I am talking about sending several hundred--- 

A (interposing) Right. 

Q —--where you are selecting those who the voter 

registration data identifies as being African American? 

Mr. Cox: Object as to form. 

A Do we send out direct mail to African Americans? 

Q Right. 

A Yes. 

Q Selected as such? 

Mr. Cox: Object as to form; answer if you can. 

Q Let me try to clarify it--where you not sending it to 

[#83] whites; you are sending it only to African Americans? 

A We have sent mail out that has been directly to the 

African American community, yes. 

Q And in those instances the source of the list were the 

voting registration? 

A The source of the list came from the voter registration, 

but we use a vendor that we request those voters to come from, 

yes. 

 



  

1 

TRIAL TESTIMONY EXCERPTS OF GERRY COHEN 

1251510. Isn't it true that as a practical matter for each of 

the plans from 1991 through 1998 you were the person 

primarily responsible with actually drafting the plan that was 

ultimately adopted? 

A. I'm not sure if each time I was primarily responsible. 

Many times I shared responsibilities or perhaps was primarily 

responsible for the Senate version of the plan. 

Q. With respect to the operation of the computer 

[#516] terminal, were you the person that did most of the 

operation of the computer terminal with respect to all the 

plans? 

A. Are you asking about all the enacted, the plans enacted? 

Q. Yes. 

A. I think that other than the House version of the 1997 

Plan, I was probably the primary operator and in ‘91, ‘92, “97 

Senate and ‘98 Senate. 

Q. Now, would it be true that under the operating with the 

computer terminal that you used, the racial data as to 

percentage of population, total population, percentage of voting 

age population and percentage of registered voters was readily 

available at all times on the screen? 

A. Not always. The default certainly had a lot of that data 

appearing on the screen. Many times I sat for a particular 

session that defaults differently, so it didn't always appear on 

the screen. 

Q. In any event, it was available if you wanted to use it and 

much of the time you had it available as you looked over the -- 

A. Over the decade, yes, but less in the ‘97 drawing. 

0. Was the data in the computer base as to the registration, 

 



  

2 

the results of the elections, everything else essentially the same 

from 1991 when you first became [*517] engaged in 

redistricting right up through 1998 when the most recent plan 

was adopted? 

A. From mid April ‘91 when we brought the system on 

line until now, we made no changes in any of the data in the 

data base in our system. 

Q. And you were quite familiar with that data as a result of 

drawing the different plans certainly by 1997? 

A. Yes, sir. 

wh x 

[*528] Q. So the 50,000 approximately African Americans 

who were moved in at that time when you prepared the plan 

and sent the e-mail remained there in the district from that time 

on? 

A. That's my belief, yes, sir. 

[¥529] Q. Would you view the 50,000 as a significant 

number of African Americans moved into the 12th District? 

Ms. Smiley: Objection, Your Honor. 

Judge Thornburg: Overruled. 

A. I view both the 50,000 African American and 100,000 

total as being significant in a district that had a total of about 

600,000, yes. 

Q. I thought equal populous required 550 some thousand? 

A. I guess I rounded it to 600,000. 

 



  

Q. About 552,000? 

A. Yes. 

Q. So 50,000 with respect to 552,000 would be roughly 10 

percent? 

A. Yes. 

[¥531] Q. In the next paragraph you use the word 

"improve" on two occasions, I believe. Improving the 

percentage. What do you have in mind there? 

A. Well, in the sentence I mentioned this was all the 

district could be improved by switching between the First and 

Third, unless I wanted to go to Pasquotank, Perquimons or 

Camden. There since the instructions at that point were to 

increase the percentage of minority in the district, improvement 

moving towards that goal, which means increasing the number. 

Q. So improve is synonymous with increase African 

Americans in this particular numbering? 

A. Yes, sir. 

 



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W. EDWIN MCMAHAN, TRIAL TESTIMONY (SELECTED 

PORTIONS) 

[#462] W. Edwin McMahan, being first duly sworn, testified as 

follows during cross examination: 

By Mr. Everett: 

Q. Representative McMahan, I just want to ask you a few 

questions. You, of course, are Representative McMahan as 

identified in the deposition. 

With respect to the formulation of the 1997 Plan and its 

boundaries, to the extent there was a difference in participation 

in the origin of the plan, was it your [*463] recollection that the 

final details of that emerged more from the Senate committee 

or from your committee? 

  

  

A. My recollection is that it actually came probably more 

from the chairs of the two committees negotiating individually. 

Q. All right. And with respect to your deposition, at the 

time you had rather limited recollection of some of the events, 

as I recall, are there any of the answers -- have you reread your 

deposition in preparation for the appearance today? 

A. Yes, sir, | have. 

Q. Is there anything in the deposition that you did at the 

time of the deposition you did not recall that you now recall 

more fully? 

A. Having read the deposition and some of the answers 

that -- well, actually, no I think the deposition is a fair 

representation of what I intended to say. 

Q. And at what point, with respect to the 1st District in the 

plan at the time, you indicated that in its formulation race was 

a predominate factor -- well, was a huge factor, as I believe you 

stated. Is that still your recollection?  



  

2ja 

A. District 1, no question is because of the makeup of the 

House on our side and the number of minorities that we had to 

deal with on the House side. Certainly, when we [*464] looked 

at District 1, race was a factor and we determined early on that 

we could draw that district and make it more compact and 

geographically compact and also address the race issue. 

Q. But was it your belief that it was necessary to have a 

majority/minority district in order to obtain preclearance? 

A. Yes, sir, one district, yes sir. 

0, And that was the one in the northeast? 

A. That’s correct, sir. 

Q. So in your instructions to Mr. Jones, who was your 

resident, did you inform him of this particular determination? 

A. Again, we looked at one, it ws never really a big issue 

as far as whether it would be a majority/minority district 

because what we were doing is primarily looking at it to make 

it more compact. And it certainly, from the very beginning, as 

Linwood Jones drew the map and we talked with the Senator 

and looked at it, it could be done, the majority/minority, as well 

as geographically compact. 

Q. Now, was it then your testimony that the objective, the 

purpose of having a majority, black majority African American 

district in the northeast was a purpose that you were not going 

to compromise. You were going to get there [*465] one way 

or the other? 

A. Well, it was one of the factors certainly that we needed 

to address. 

Q. And did you have a belief from what you had been 

informed that without that particular district it would not be -- 

 



  

3ja 

the plan would not be precleared if that were not a majority 

black district? 

A I certainly recall that we felt, in order to get 

preclearance, it would need to be a majority/minority district. 

Q. Finally did you develop alternatives which you felt 

were more compact than those that were finally adopted for a 

majority district? 

A. Would you repeat the question? 

Q. In other words, in your planning, did you perceive ways 

of getting to a majority black district that were more compact 

than those that were in the plan that was more final adopted? 

A. We were dealing with a situation where we needed to 

satisfy a lot of people to get the plan approved. So even though 

we might have been able to draw it more compact, it was other 

factors that led to us drawing it the way we did. 

Mr. Everett: I have no further questions. 

Judge Boyle: Wasityourunderstanding,as you [*466] 

approached redistricting in 1997, that the 1st District, as 

composed in the '92 Plan, was facially in violation of the 

Constitution? 

The Witness: No, sir, we did not look at District 1 as 

being in violation of the Constitution. 

Judge Boyle: How about District 12? 

The Witness: We knew that the three judge panel had 

ruled it to be in violation of the Constitution in District 12. 

Judge Boyle: No, they hadn't, the Supreme Court had. 

The Witness: I'm sorry. 

Judge Boyle: So the U.S. Supreme Court told you 

District 12 violated the Equal Protection Clause and you could 

not continue to use that? 

 



  

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The Witness: That's correct, sir. 

Judge Boyle: That's why you were in the redistricting 

exercise in '97? 

The Witness: Yes, sir. 

Judge Boyle: But as to District 1, without the Supreme 

Court directly speaking to that, was it the sense and 

understanding of the House that that district was likewise in 

violation of the U.S. Constitution as composed? 

The Witness: Sir, as I think I said in my [*467] 

deposition, when I looked at District 1, having known the 

ruling on District 12, in my mind as a layman and not an 

attorney, it certainly appeared to me that we did need to make 

some changes in District 1 the way it had been drawn in 1992. 

Judge Boyle: Does that mean there was a recognition 

you could not repromulgate District 1 in its then existing form? 

Do you want me to say it again? 

The Witness: Please. 

Judge Boyle: Was there the sense or the understanding 

of the House that you would not be able to effectively or 

constitutionally repromulgate, readopt, District 1 in the same 

form as it existed in the '92 Plan? 

The Witness: Well, again, we felt it was our 

responsibility to look at the map and where we could make 

changes and make fewer counties divided, no precincts 

hopefully divided, which certainly included District 1. Because 

of the way it was drawn, it went all the way across the eastern 

part of the State. We felt it was our responsibility to make 

changes, yes, sir. 

Judge Boyle: Thank you. 

 



  

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Judge Thomburg: Your concern at that point was 

primarily compactness as opposed to racial matters? 

The Witness: Yes, sir. The biggest concern we had, 

when Senator Cooper and I first sat down and talked [*468] 

about it was, of course, maintaining the balance. The 6/6 

balance was very, very important as well as geographic 

compactness, because at that time there were like 80 counties 

divided and a number of precincts, maybe 80 precincts were 

divided, but a lot of division there we felt like we needed to 

correct. 

Judge Thornburg: Thank you. 

Mr. Everett: May I ask a couple follow up questions to 

Judge Boyle, so there's no misunderstanding? 

Judge Thornburg: Yes, sir. 

By Mr. Everett: 

0. I'm trying to find -- here is the 1992 Plan and up here is 

the First District. You are not a lawyer? 

A. (Witness nods head.) 

Q. You were dealing with Mr. Cooper, who was a lawyer; 

you had Mr. Linwood Jones, who was a lawyer. I'm going to 

put it to you simply with respect to the 1st District in the 1992 

Plan, which extended from the Virginia border almost down to 

South Carolina. Didn't you, on the basis of what you were told 

when you became chair of that committee, believe that that was 

an unconstitutional district? 

Ms. Smiley: Object, asking him for legal opinion, your 

Honor. 

Judge Thornburg: Overruled. 

[*469] A. Judge Everett, again, I could look at that district, 

and knowing the problems with District 12, that we needed to 

 



  

6ja 

also try to see if we could make it more geographically 

compact. That's what we tried to do. We could do both, you 

know, make it more compact as well as satisfy the requirements 

on racial fairness. 

Q. I hate to pressure you for a yes or no answer, but are 

you able to give a yes or no answer to whether you thought it 

was unconstitutional at that time? 

A. I certainly felt that it needed to be redrawn. Whether it 

was because it was unconstitutional or because you could look 

at it and tell it needed to be redrawn, I'm not sure, Judge 

Everett. 

Q. You are saying you are not sure whether you had belief 

one way or the other? 

A. No, sir, I'm not. 

Q. Let me ask you this: with respect to this district, which 

had been held unconstitutional by the Supreme Court, was it 

your belief that you could reconstitute this District without 

being subject to any issue as to constitutionality if you got the 

percentage of African Americans below 50 percent? 

A. Judge Everett, the percentage was not the fact that we 

considered. It was primarily the fact that we felt the reason it 

was unconstitutional was because, again, the way [*470] it was 

drawn and so even though, you know, the racial fairness 

entered into it, it was not one -- it was one of a number of 

factors. I think geographic compactness was more important, 

we felt, than the racial percentage. 

Q. Let me ask you this, then: when you got ready to 

present the plan to the House, didn't you, in fact, tell them that 

a reason for allowing or having the new plan, which I believe 

is right here, the reason for allowing it was that it was below 50 

 



Tia 

percent African American and, therefore, the shape didn't 

matter? 

A. Judge Everett, I was asked that in my deposition. I 

went back and read the minutes. I did say that on the floor as 

one of the factors. I'm not an attorney. I didn't mean to 

interpret that to mean it's now constitutionally correct. I quite 

honestly, you know, Senator Cooper made that statement and 

I had picked up on that and that was the reason that I actually 

made that statement. 

Q. So on the basis of what Senator Cooper told you or 

statement that he had made, and in trying to persuade the 

House members to adopt the plan, you so informed them with 

respect to the 12th District in the 1997 Plan? 

As far as the racial percentage? 

Yes: 

I think the question was asked, what was the racial 

[#471] percentage? I can assure you, though, that was not the 

primary objective that we had in drawing 12, was to try to 

maintain a certain percentage of minorities. 

Q. Didn't you specifically say that you had gotten it up to 

46 percent or above 46 percent? Didn't you tell the members 

of the House that you had done the best you could in order to 

satisfy the Department of Justice and satisfy the courts? 

A. Well, again, racial fairness was an issue and I had to 

deal with the House that had 18 minor members, so it was 

certainly an issue and people had asked the question of where 

the percentage was, but, again, our first attempt, I think was 

like 40 percent. We were trying to make it as Republican as 

possible and make it fair for Republicans to have a chance, but,  



  

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again, it was not the main issue, the percentage, but I did 

answer the question that it was 46 percent. 

Q. So it went up to 40 percent where you proposed to have 

it up to 46 percent and that was at persistence of the 

Democrats? 

A. The Senate Plan was 46 percent. 

Q. Insofar as the members of the House were concerned, 

African members, were they in favor, as expressed to you, as 

having the higher percentage of African Americans in the 12th 

District as possible? 

[472] A. Yes, sir, they were. 

Q. And with respect to the 1st District, was that the same? 

A. Yes, sir. 

Q. And they were a very significant force in the House at 

that time? 

A. They were certainly a force that I had to deal with along 

with a lot of other factors. 

Q. And the partisan breakdown of the House at that time 

was 61/59? 

A. Yes, sir, that's correct. 

Mr. Everett: Thank you, your Honors. 

Judge Voorhees: Now, you said that you felt the 1st 

District needed to be redrawn from the '92 Plan and that you 

weren't sure whether that was because of constitutional concern 

or because it just needed to have more compact shape? 

The Witness: Yes, sir. We, of course, did not get any 

kind of ruling on One, but it was only a 12. But when we 

looked at the map again, we were trying to look at the map 

overall, primarily to address 12, but that affected the other 

districts. And when I looked at one, it was felt by Senator 

 



  

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Cooper and myself it did need to be looked at and redrawn 

because of the way it was configured. 

[473] Judge Voorhees: The reason for that is the Supreme 

Court sent a concern about shape? 

The Witness: Yes, sir. 

Judge Voorhees: So whether it was a fundamental 

concern or specific concern that the Supreme Court voiced 

about shape, that's still the reason why you felt it had to be 

reconfigured? 

The Witness: Again, I'm not an attorney; that's my 

interpretation. 

Judge Voorhees: Would that have been the sense of 

your colleagues, as far as you could tell? 

The Witness: Yes, sir, I believe so. 

Judge Thornburg: Are there any questions by defense 

that aren't covered in the deposition and the affidavit or by way 

of explanation of what's been asked here this morning? 

Ms. Harrell: We would like to ask a few, your Honor. 

If I may approach the witness and give him a notebooks? He's 

not going to use most of them. This was prepared way in 

advance. 

Judge Thornburg: All right. 

Redirect Examination 
  

By Ms. Harrell: 

Q. Representative McMahan, you referred to your plan a 

few moments ago. Were you speaking about the plan that 

[*474] you presented to the House committee? 

A. Yes, sir -- yes, ma'am. 

Q. And could you look at the Joint Exhibit 105, 

Representative McMahan? 

 



  

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A. Okay. 

Q. And is that labeled House Selecting '97 Congressional 

Plan 8.17 

A. Yes, it 1s. 

Q. And is that the plan that you were speaking about that 

you presented to the House committee? 

A. Ms.-Harrell, I believe so. You know, when you look at 

these maps, it takes a little bit of time to make sure, but I 

believe that's it. I do recall it was labeled 8.1. 

Q. All right. And did you refer to the percentage of 

minorities in your Senate District 12 in your House Plan? 

A. As 1 recall, it was 40 percent having read the 

information in the minutes of the meetings. 

Q. Allright. And were you trying to make the Senate 12th 

District in your plan more competitive or less competitive for 

Republicans? 

A. We were trying, obviously, to make it more competitive 

for Republicans. 

Q. And when you became Chairman of the House 

Congressional Redistricting Committee, did you meet early on 

with Senator Cooper? | 

[*475] A. Yes, we did. 

Q. And based on your understanding with your meeting 

with Senator Cooper, what were your overall goals in trying to 

steer this plan through the committee? 

A. Again, he and I sat down and talked about what we 

thought was necessary in order to get this approved. I don't 

think very few people in the legislature felt that we could do it, 

that we could get the bodies together because, of course, the 

House was Republican and the Senate was Democratic. So we 

 



  

11ja 

sat down and said let's try to see what's important to you and 

important to me and see if we can bring it together. 

Several of the factors, the primary factors, of course, he 

and I both agreed on was maintaining the 6/6 balance, which 

currently existed in the congressional delegation. And we 

needed to make sure we did that. We wanted to try to look at 

geographic compactness and divide as few counties and no 

precincts, if it was possible. It ended up we did a good job on 

that. We talked about racial fairness. We knew we would have 

to address to that. On the House side, certainly had a 

substantial number of minorities I would have to deal with and 

- talk to and we wanted to be fair. 

So geographic compactness and, of course, the 

incumbency issue. We were -- obviously knew that, you 

[¥476] know, that it was probably important to try to protect as 

many of the incumbents as we could. So those were the 

overall, I think the majority of the issues that we agreed that 

would have to be addressed. 

Q. Just briefly, what was the district that you were 

concerned about in the negotiations? 

A. The one we spent the most time on, as it turned out, 

would be 2 and 4, and then 3 was important, too, because those 

were the districts that the numbers were very close on. And we 

were trying to make sure, again, to maintain this 6/6 balance. 

So 3, 2 and 4 got more attention, as it turned out, than any of 

the others. 

Q. Okay. And are 2 and 4 both held by Democratic 

incumbents? 

A. Yes, they are. 

 



12ja 

Q. What were you trying to do with regard to those 

districts? 

A. Well, we -- 3 actually is -- the numbers indicated it's 

Democratic even though it's held by a Republican, so the 

Senate was trying to make 3 as Democratic as possible; I was 

trying to make 2 as Republican as possible. 

0, Okay. And if I could ask you to look also at Joint 

Exhibit No. 134. You have one of those in your notebook, 

Representative McMahan, Exhibit 134. And that's the labeled 

House '97 Congressional Plan A. You have that [*477] before 

you? 

A. Yes. 

Q. Is this a plan before you considered your A-1 to the 

House Committee? 

A. Yes. This was, I think, the first plan that Linwood 

Jones and I redrew. 

Q. And with regard to trying to work with minority 

members of the House, were you able to persuade them to 

support your bill? 

A. As it turned out, the majority of them voted against it on 

the House side. 

Q. And overall, would you say that you were able to 

accomplish the goals that you started out with regard to the 

redistricting process? 

A. Yes, I was very pleased that we were able and I think 

actually Senator Cooper was surprised that we were able to get 

it approved with the numbers we did on the House side. 

Judge Voorhees: What were the numbers, do you 

recall?  



13ja 

The Witness: Sir, I believe we had 85 positive votes, as 

I recall. I know it was 55 Republicans, believe, that voted for 

it on our side, but I believe like 85. 

By Ms. Harrell: 

Q. And did you feel like the basic objectives that you 

[¥478] started out with were met in the plan? 

A. Yes, ma'am, I do. 

Judge Thornburg: Did you say a majority of the 

minority members of the House voted against? 

The Witness: Yes, sir, they did, which actually was a 

surprise, because I tried to work with them as we went along, 

but they offered a number of amendments on the floor because 

they were disturbed. They didn't think District 12 was strong 

enough, you know, the minority, they didn't have enough 

influence in District 12. So they offered amendments on the 

floor to actually put it back more like it existed on the '92 Plan, 

but we were able to defeat those amendments. 

Judge Boyle: Were they trying to add Durham back to 

it? 

The Witness: 1 believe Representative Michaux 

brought it back to Durham, I believe so. 

Judge Boyle: They didn't care about losing Gastonia. 

The Witness: I think that's correct. 

Mr. Everett: May I ask one or two other questions? I'll 

be brief. 

Judge Thornburg: All right, sir. 

Recross examination 
  

By Mr. Everett:  



  

14ja 

[*479] Q. The questions were asked of you by Ms. Harrell 

about the area of dispute, major controversy that was over 

around 2 and 4? 

A. Yes, sir. 

Q. So then would it be correct that 12, the idea of 12 was 

46 percent, or thereabouts, was accepted as a starting point not 

to be compromised. You are not going to compromise that 

part; the big dispute was to 2 and 4? 

Ms. Smiley: Objection. 

Judge Thornburg: Overruled. 

A. The percentage was not -- we didn't discuss, Senator 

Cooper and I, the actual percentage that needed to be. 

Q. Whatever it was, this was sort of a starting point to have 

this district with whatever the percentage of African Americans 

was? 

A. Well, again, what we tried to do was look at it from the 

geographic compactness to make it acceptable in the fact of not 

making it any longer from one end to the other than other 

districts were. And, again, the actual percentage came out at 

the end because people asked for it, but it was not what Senator 

Cooper and I discussed as one of the criterias. 

Q. I wanted to be sure I understand then. You are saying 

this 12th District, as shown here, is now geographically 

compact? 

 



  

1ja 

Roy A. COOPER, III, TRIAL TESTIMONY (SELECTED 

PORTIONS) 

[¥334] A. Well, I read the opinion in Shaw versus Hunt, and 

" the first thing that we needed to do was to cure the 

constitutional defects in the 1992 Plan. So that was the first 

consideration. And I think in general that meant making the 

plan look a lot nicer; and secondly, to make certain that race 

was not the predominate factor in drawing the districts. And in 

making the districts look a lot nicer, we needed to make sure 

we didn't split precincts, try to split fewer counties, make sure 

you didn't have one county with three members of congress. 

Making sure you didn't have long narrow corridors where you 

didn't have any people. Making sure you didn't have the 

double-cross overs and cross overs and point contiguity and all 

of these concerns that were pointed out by the court. 

Q. Before you go onto the second goal, was there any 

feeling on your part or the leadership of the Senate not to create 

and draw a constitutional plan? 

A. No. We wanted to make sure that the plan was 

constitutional. 

Q. Would you prefer not to be back in court again? 

A. Most definitely. 

Q. What was the other one? 

A. The other concern was we wanted to make sure that the 

legislature drew this plan and not the federal courts. 

[#335] Q. With all due respect to the federal courts? 

A. With all due respect to the federal courts, yes. 

Q. But? 

A. But we felt it was our responsibility and we didn't want 

to delegate that authority. We knew we had a real problem 

 



2ja 

with that and the Senate was majority Democratic and the 

House majority Republican and we knew if we had a plan that 

was too partisan one way or the other that you would never get 

enough votes in the chamber that was getting the short end of 

the stick. 

Q. If I might interrupt you for a moment. In 1996, what 

occurred with respect to the incumbents, the congressional 

delegation for North Carolina? 

A. With the 1996 election, there were we ended -- up with 

a delegation of six Democrats and six Republicans after the 

election. 

Q. I'm sorry to interrupt you. 

A. We knew that would be important because the bottom 

line was to make sure we had 26 votes in the Senate and 61 

votes in the House to pass the plan and there are many 

considerations that you have to take under consideration when 

you try to do that. 

Q. And in terms of gaining votes, do you look after the 

interest of incumbents? 

A. That was a consideration and the reason it's a [*336] 

consideration is that incumbents are in office, they have a 

constituency. They have people who advocate for them in the 

General Assembly. Oftentimes they have close relations with 

legislators, and so incumbents can affect votes in the General 

Assembly. 

And although it would be nice to draw these districts in 

a vaccuum and to make them look nice and to completely 

ignore partisan politics and completely ignore who's the 

incumbent, I'd like to find a way to do that. But in order to get 

votes in the General Assembly, to get a plan passed, you can't  



  

3ja 

do that and you have to take into consideration what 

incumbents think about the plan. 

Judge Boyle: Let me interrupt for a second. Don't lose 

your train of thought. As a benchmark, the congressional 

delegation is now seven, five Republican in the '98 election. In 

the 1996 election, it was 6/6, even. In the '94 election, it was 

8/4 Republican. And in the '92 election, it was 4/8, 

Republican, Democrat; is that correct? 

Ms. Smiley: That's how I recall. Perhaps Senator you 

may know. 

The Witness: That's right. 

Judge Boyle: So since redistricting in '91, 2 with the 

'92 Plan, North Carolina has gone 8/4 Democrat, 8/4 

Republican, 6/6 and now 7/5 in the four succeeding [*337] 

congressional elections. 

The Witness: Yes, sir. 

Judge Boyle: All right. 

The Witness: And that's one reason you never can 

predict. I mean, that's ultimately these elections are up to the 

people and it's very difficult to predict, although we did spend 

quite a bit of time looking at election results because we knew 

that the partisan fairness of the plan would be an overriding 

factor in trying to get a plan with a majority of votes in both 

chambers. So we had to pay attention to that, although you can 

never predict exactly. 

By Ms. Smiley: 

Q. Well, looking at the partisan balance over this decade 

that Judge Boyle has just refreshed our recollection with, was 

1996, was that a windows opportunity when you did have the 

redistricting at that time there was a balance? 

 



  

4 ja 

A. I'm not sure that we could have gotten a plan through 

the General Assembly had there not been a 6/6 split because 

eventually we settled on that as a fair proposition. It was a fair 

proposition to the public. It was fair to the legislators. I think 

you have a lot of Democrats in the Senate who would have 

wanted to draw the plan to favor Democrats and Republicans 

in the House. 

[*338] One wanted to draw the plan to favor Republicans and 

this situation that we had already with the 6/6 split made it a 

very convenient way to have a plan that was fair in a partisan 

manner. So Representative McMahan and I decided early on 

and the leadership of both the House and Senate decided early 

on we needed to strive toward a plan that was a fair 6/6 partisan 

split. 

Now, what that was, and the definition of that was 

subject of great debate, but we ended up with a plan that I think 

was fair. 

Q. All right. Now, we were talking about the 

accommodation of incumbents, and accommodating 

incumbents also meant votes in the legislature. As a general 

matter, do you have to look at the interest of legislators? 

A. Yes, youdo. Legislators live in congressional districts. 

Many times their constituents have been in a congressional 

district for a long time. They have certain interests that they 

want to see a congressional district drawn a certain way, so 

almost every legislator in the General Assembly has an 

opinion, particularly in his or her own home area about how a 

district should be drawn. 

Q. And do sometimes the different interests of legislators, 

incumbents conflict? 

 



  

5ja 

A. Sometimes they do. 

Q. And do they sometimes conflict with the goal of [*339] 

having a 6/6 split? 

A. Yes, they do. 

Q. Would they sometimes conflict with having a preplan 

or constitutional plan? 

A. Most definitely, yes. 

Q. But you have to garner votes? 

A. We had to put all of this together and make sure we met 

all of the tests that the Court laid out for us. 

Q. So you might not be able to do some accommodation if 

you could not create a plan that would be constitutional? 

A. Repeat the question, sorry. 

Q. Some accommodation might not be made things that 

people wanted? 

A. Yes. 

Q. Because it might make the plan vulnerable? 

A. Yes. There were requests made that I thought would 

have made the plan unconstitutional and we just couldn't do it. 

Q. Now, the mechanics of the redistricting process itself, 

did you yourself manipulate the calculations? 

A. I did not. I was not in the room and I would give 

instructions to a person who normally would do the actual 

mechanical calculations. And most of the time that was Gerry 

Cohen. 

Q. Were you in the room or often allow him to do his 

[*340] work while you were not there? 

A. Often allowed him to do his work while I was not there, 

just on general instructions, yes. 

 



  

6 ja 

Q. What were the kind of instructions you would give him 

or what was your working relationship with Mr. Cohen? 

A. Gerry is maybe more familiar with maps and precincts 

and make up and Democratic performance and Republican 

performance than anybody in the state. He has been working 

with this for such a long time. I would give him a general idea 

of what I wanted to do. I would say move a certain county into 

a certain district or I would just talk to him conceptually about 

a problem that a legislator would have and would say we need 

to do something to try to fix this. 

Q. Would he ever come back to you with ways he thought 

that could be accommodated? 

Yes, he would. 

Did you work with other legislators? 

Yes, 1 did. - 

And did you see a lot of plans? 

m
o
 

P>
Ro
 

> 

Yes. We saw a lot of plans. Many plans were 

submitted and people had a lot of different ideas about what we 

ought to do. 

Q. Okay. With respect to other legislators, how did you 

handle the process of getting their input and making sure 

[*341] that you could get your votes? 

A. Well, I talked to individual legislators. I told them that 

if you have ideas, let me know. I did have legislators that 

would bring plans into the office. Many times they would draw 

their own district without thinking about the other 11 districts 

in the state and that would sometimes cause a problem because 

everything is inter-related, but we had legislators who would 

draw their own plans and bring them in we would look at that. 

 



  

7ja 

We held a public hearing. We let input in from the 

public. We had discussions, suggestions from the public on 

what we ought to do. 

Judge Boyle: When you say "legislators," you are 

talking of members of the General Assembly, not members of 

congress? 

The Witness: But members of congress also gave us 

their ideas. 

Judge Boyle: That's what it sounded like. They would 

come in with a district of their own, not taking into account 

other districts? 

The Witness: That's correct, but we had plans from 

other state legislators who had interests in this issue they want 

present us with plans as well as members of congress. 

By Ms. Smiley: 

[342] Q. So he might be interested himself in possibly 

running for office or he's the incumbent? 

A. Yes. 

Q. I won't make you elaborate on that. My next question, 

which Judge Boyle has anticipated, is could you describe as 

well as you can remember the input that you had in your 

consultation with congress persons or their aides? 

A. I think that I talked to every member of congress or his 

or her representative except for Congressman Taylor in this 

process. 

Q. And is his district really in play? 

A. His district is the 11th, the far west, and we did very 

little to that district and no, that district really was not -- pretty 

much everybody agreed that we ought to straighten up the line 

a little bit to make it look a little nicer but it was not 

 



8 ja 

significantly debated. So I didn't really have occasion to talk 

to him or any of his staff and he didn't ever contact me. But I 

did have contact with all of the others, I believe. 

Q. And to the extent that you can remember the kind of 

contact that you had or when in the process? 

A. Talked on the telephone, we had one meeting in Raleigh 

of Democratic members of congress wherein they came to 

Raleigh and I presented them with some ideas and [*343] they 

presented me with some ideas but most of it was by phone. 

Some of the members of congress came individually on 

separate occasions and talked with me. 

Many of them, as the judge said, were drawing their 

own plans and submitting them to me. I think when we had 

that meeting is when I showed them some of my ideas and so 

they started working off of that and giving me ideas or 

suggestions. I think the general idea was many of them wanted 

to keep a lot of the constituents that they already had because 

they had a lot of time invested in talking with them and 

representing them and many of them wanted to do that. 

Q. And at that point in time when you started presenting 

plans or ideas, at least to the delegation, do you remember what 

the main outline of the plan or what you showed them? 

A. It was probably pretty close to what I presented to the 

Senate committee. I think it was in February sometime. 

Q. Before we go there then, let's step back a little. All 

right. You were talking to legislators and congress people. Did 

you begin talking with Representative McMahan? 

A. Yes.  



  

9ja 

Q, Could you say when and kind of give us a little [*344] 

history of your discussions with him in the early time before 

you started negotiating your plans? 

A. Very early in the process Representative McMahan and 

I agreed that we would keep an open dialogue and that we 

would try to come up with a plan to present to both sides that 

we both agreed on. So we began discussing principles. We 

talked about the 6/6 split and wanting to stick to that principle. 

We talked about making sure that we kept our lines of 

communication open and we began the process of presenting 

plans back and forth to each other for each other's 

consideration. 

Q. Was there initial issue based on the plan that the 

Republicans had presented in the summer of 1996; do you 

recall where the 12th District was in that plan? 

A. Is this the plan that the 12th District ran from 

Mecklenburg down across the south east to Robeson County? 

Q. Yes. And is that an issue you talked with 

Representative McMahan early on about that? 

A. I told him that was just completely unacceptable and 

that plan would never pass the Democratic Senate. 

Q. Was that early in the process? 

A. Yes, that was fairly early in the process. 

Q. Why? 

A. For one thing, probably most importantly, there would 

be members of the Senate that would think the plan was [*345] 

very much unfair on a partisan basis, because it would have 

resulted in an 8 to 4 Republican partisan split. And I suspect 

that was the motivation behind it being presented -- 

 



  

10 ja 

Q. Did it disrupt a good number of Democratic districts in 

the southern part of the state, south central part of the state? 

A. Yes it did. 

Q. Okay. So that was one of the early issues you did 

discuss with Representative McMahan? 

A. That's correct. 

Q. How did you all resolve that at that time or how did you 

leave it, when you said that was no go? 

A. He pretty much gave up on that pretty early. There 

were other members of the legislature who wanted to do that 

for what I believe to be partisan reasons. He understood -- he 

was being practical, as I was. There were plans out there that 

would have resulted in a strong Democratic leaning map, and 

I knew early that this was not going to be a practical solution 

to the problem so we both understood that and he gave up on 

that pretty early in the process. 

Judge Thornburg: I think this is a good point to break 

and, Senator, we will start back at 2 o'clock. 

(Lunch recess taken.) 

[#346] (Witness, Roy Cooper, returns to the witness stand). 

Judge Thornburg: You may proceed. 

By Ms, Smiley: 

Q. Senator, moving farther into the world of redistricting, 

could you tell us a little bit about the data bases in the computer 

system and how you used them and, obviously, not a technical 

answer from you, but -- 

A. There was data in the computer from 1988 when we had 

redistricted for 1999 -- excuse me, for the 1990 Census. There 

was data from election results in 1998 that went into the 

computer in addition to other demographic information. We 

 



  

11ja 

used that same information that was from the 1990 Census for 

redrawing these maps for 1997. There were election results. 

I think there was a Lieutenant Governors race, a Supreme Court 

or Superior Court Judges race and a U.S. Senate race that was 

from 1988 that was in the computer. 

Q. What information did you find most useful in looking 

at District 127 

A. The election results were the predominate number that 

we looked at in all of the districts. We even had some 

supplemental election results that we used, but with this 

overriding issue concerning 6/6 partisan split, the election 

results were the most predominate numbers. In fact, when we 

were using the maps, that was generally the [*347] number that 

was up on the screen. : 

Q. Do you recall which election you felt gave the best 

indication of Democratic\Republican? 

A. That's difficult to say. Probably that judge's race gave 

the best generic indication, but still that was older data, that 

was 1988 data. And although it was somewhat useful, it wasn't 

the primary election information that we used. 

Q. What was the primary? 

A. The primary information was election results that we 

received from an organization called the National Committee 

for an Effective Congress, which was an organization that I 

think was primarily funded by the National Democratic Party. 

It's primary function was to help elect Democratic members of 

congress across the nation and to specifically help with states 

that were doing congressional redistricting. 

Q. And how would you go about getting that information 

from them? 

 



  

12 ja 

A. We had a computer link up with our General Assembly 

map makers with the committee in Washington and whenever 

there was a map that we wanted to look at their analysis of the 

map we would send it up electronically and they would send 

back information to us, giving us election results and telling us 

what the Democratic performance of [#348] the district would 

be. 

Q. And was that data more current than what you had? 

A. Yes, it took into account several elections from 1990 to 

1996 and the state computer data base only had the 1938 

election results. 

Q. And was there a particular column that you used on the 

N.C.E.C. data? 

A. There was a column that was an inclusive cumulative 

performance number that they came up with taking into 

account all of these elections, and they called it a Democratic 

performance number. So, for example, if youhad a 55 percent 

Democratic performance, then that would be very good. Below 

50 would be of concern. 

kb 

[*349] A. Well, the primary concern was to address, as 

I've testified earlier, the constitutional problems that were cited 

by the Supreme Court in Shaw v Hunt, so that turned us to the 

12th Congressional Districts because that specifically was the 

district that was unconstitutional. The Court had real problems 

with the long narrow corridors without people, splitting of 

precincts, point contiguity, crossovers, double-crossovers. 

 



13 ja 

We set out to eliminate all of those problems that they 

had specifically pointed out in the decision. And [*350] also 

we wanted to make certain that race was not the predominate 

factor, which is what the Court said that we could not do. 

So I began by taking that into account. We also had the 

practical problem of getting a plan that was passed. So we took 

the core of all 12 districts, the general area of all 12 districts 

and began our redistricting process. And I would say that we 

probably made the most dramatic changes in both the 12th and 

the 1st Districts from the old map because of the problems that 

were cited by the Court in Shaw v Hunt. 

Q. When you talk about the core, what does a core mean 

to you? Are you talking about the African American core? 

A. No. The geographic core, the area the constituents that 

were in the previous congressional district. If you had started 

from square one with people who were already in a 

congressional district with members of congress that already 

represented areas. If you started at square one, I just don't think 

we could have drawn a plan that would have passed muster. 

Even from census to census, most of the time there's a 

geographic core of the previous district that you start with, so 

this was really no different than coming from another census, 

except for the fact that we had the Supreme Court decision that 

we wanted to address and feel we did address. 

[#351] Judge Boyle: Were the changes more substantial in the 

First and Third than in the 12th, or can you say? 

The Witness: I think the 12th was probably as dramatic 

a change as any that we did. If you look at the map starting in 

Gastonia with a thin line all the way to Durham, we cut the area 

of that district almost in half -- excuse me, the length, and  



14 ja 

significantly broadened it. So I would say the First and the 

12th were the two most dramatic changes. There were some 

changes to the Third. There were some changes to all of them 

actually, but I think the First and the 12th were the most 

dramatic because of the constitutional concerns that were raised 

by the Supreme Court. 

* x % 

[¥352] A. No, we made dramatic changes to the 12th. We 

took four, I guess it was four, of the counties that were in it 

before completely out of it. 

Judge Boyle: What was your reason for not taking 

Guilford out of it as you did later in the '98 Plan? 

The Witness: Well, your Honor, when you get back to 

looking at the partisan nature of what we were trying to do, it 

was a fact that the 12th District was surrounded by Republican 

leaning districts. And when you looked at Guilford, it made 

everyone happy from a political standpoint to take the 

Democratic leaning voters in Guilford and put them in the 12th 

because it made the 12th a much stronger Democratic district 

and it made the Sixth District, Congressman Coble's District, 

much more Republican, which made him happy. 

And in addition, there was a geographic symmetry to 

putting the Triad altogether and making sure that Greensboro, 

Winston-Salem, High Point, the Triad, was all [*353] covered 

by the 12th. That was connected with Mecklenburg and it was, 

we thought, I think the third shortest district in the whole state 

and we thought it made geographic sense to do that. 

By Ms. Smiley: 

 



  

15ja 

Q. If we may back up a little bit. We jumped a little ahead. 

Had you and Representative McMahan had any discussions and 

come to any agreement as you were working on the Senate Plan 

about the 12th? 

A. We came to an agreement that it would go from 

Mecklenburg to a point in the Triad fairly early on, that that's 

what we wanted to do. All the members of congress were okay 

with that. We thought it met the constitutional test because we 

were cutting off large areas that didn't look nice and we knew 

that that was going to be a Democratic leaning district. So we 

decided that the only issue was where we went. 

Did we go to Forsyth only, did we go to Guilford only, 

did we go to Forsyth and High Point, did we go to Forsyth, 

High Point and Greensboro? We came to the conclusion it 

made sense to connect them altogether and it made sense to 

keep the Triad together and it made sense from a partisan 

perspective that made the 12th more strongly Democratic and 

made the 6th more strongly Republican, making everyone 

happy. Getting back to my [*354] earlier statement, the people 

that decide these elections, but we were trying to get a plan that 

passed and these members of the legislature are looking very 

carefully at elections and election results, and we were trying 

to get enough votes to get this plan passed. 

Q. Do you recall that at some point there may have only 

went to High Point? 

A. Yes. 

Q. At some point you decided to go all the way into 

Greensboro? 

A. Yes. 

 



  

16 ja 

Q. When that decision was made -- and have you just 

explained some of the reasons why you made that decision to 

go to Greensboro? 

A. Yes. | mean, it just made sense and it was -- I don't 

want to be as cavalier as to say "why not," but I mean, it didn't 

make a whole lot of sense just not -- just to go into Forsyth or 

just only to go into High Point. 

Q. Where could you put those Greensboro Democrats if 

you don't go -- 

A. They would natural naturally fall into the 6th District. 

Judge Boyle: Is that where they are in the “98 plan? 

The witness: Yes. 

[#356] When you made a decision to go to Greensboro, did 

you give any instruction to Mr. Cohen or anyone to go to 

Greensboro and get the blacks or get the black community? 

A. No, I did not. I would not have given that type of 

instruction because that's not the mindset that I had. 

Q. And what, in fact, was put into the district, was it just 

black precincts; if you know? 

A. They were mostly Democratic leaning precincts, 

Democratic voting precincts. 

Q. Do you know if most of them were African American? 

A. I can not remember and I specifically did not go 

through and try to remember technically about all of these 

maps and I can not remember whether there was a majority of 

African Americans or not. It is obviously a substantial number 

 



  

17 ja 

of African Americans that were in those strongly Democratic 

leaning districts. | 

Q. Were there a majority of white precincts from 

Greensboro that also went into the district? 

[¥357] A. There were majority white precincts there also. 

I can't tell you precisely how many. There were a majority of 

white precincts, but most are all Democratic leaning precincts. 

Q. No point in putting them in if they weren't Democratic 

leaning? 

A. Like I say, we were trying to strike this partisan 

balance. That's not very pretty, but that's the kind of thing that 

has to happen to get votes. 

Q. When you went to Greensboro and the plan extended to 

Greensboro, were you attempting in any way to achieve a 

particular racial percentage in the district? 

Mr. Everett: Objection, leading. 

Judge Thornburg: Overruled. 

A. No, we were not. I would say that the fact that it did, 

the number did go up, that that was fine with me and that was 

fine with a lot of people who wanted to support Congressman 

Watt and wanted to make certain that there was incumbent 

protection, but that was not the primary motive by far. And we 

did not have a set percentage that we were looking for because 

specifically the Court told us not to do that, so we didn't do 

that. 

Q. And as ancillary benefit, do you have any idea whether 

Congressman Coble was satisfied with what happened to 

Greensboro? 

[*358] A. Itis my understanding that he was happy with what 

we did. 

 



  

18 ja 

Q. All right. 

A. Because it increased the Republican performance of his 

district. 

Q. Now, with respect to District 1, when you were at this 

point you were working on the Senate Plan, do you recall what 

some of the issues were and what you were thinking about in 

the eastern part of the state in the District 1 area? 

A. Well, I think all of the issues that I talked about in the 

12th would be transferred to the First as well. Although the 

Court had not specifically overturned the First District, we 

knew that from the way that the map was drawn and, his Honor 

showed us, talked about down in southeast, we knew we had to 

do something about that to avoid a constitutional problem with 

the First District. 

So we looked at the core of the district, which was 

northeastern North Carolina, and we drew a district that I think 

complies with all of the issues that we had to deal with. We 

had to deal with the constitutional issue of making sure that 

race was not the predominate factor and making sure it looked 

nice. 

But also we had some other evidence presented to us, in 

the redistricting committee, concerning the Voting [*359] 

Rights Act and the fact that there had been some past patterns 

of discriminatory voting in northeastern North Carolina, that 

you had a large concentration of African Americans living in 

the northeastern part of the state and that we should have a 

majority/minority district in the First, which we did. 

Q. I believe -- excuse me, Senator, Exhibit 125, I believe 

is a map that shows the African American concentration in that 

area? 

 



  

19 ja 

A. Yes, uh-huh. 

Q. Now, could you -- what does that map illustrate? 

A. I think this illustrates that there are numerous counties 

in northeastern North Carolina that have a high percentage of 

African American population and that we simply use that core 

to create the First District. When we first started doing this, I 

was a little unsure as to whether we could draw a 

majority/minority district that met the test in Shaw v. Hunt and 

looked nice, but as we went through the process it became 

~ pretty clear that we could draw a nice compact district that 

made geographic sense, that put together communities of 

interest, that was a strongly leaning Democratic district, that 

was slightly majority/minority population. 

Q. I believe you have in your witness notebook an Exhibit 

104, which was the plan that the Senate came out [*360] with? 

A. I believe that's the plan that I initially presented to the 

Senate. 

Q. And ultimately became the plan that the Senate passed 

and negotiated with the House? 

A. Yes. 

£), Okay. And is that District 1 more compact, possibly 

than the District 1 in the enacted plan? 

A. Yeah. I think we did a little better job than the plan we 

eventually came up with, but so much of the end of the process 

to do with the Fourth, the Second, and the Third Districts 

concerning the partisan nature of those districts, that we had to 

change parts of the First District in order to accommodate those 

concerns in order to get a plan to pass. So it evolved from what 

this plan is now to the plan that we ended up with that I don't 

 



20 ja 

think looks quite as nice and compact as this, but I think it's 

certainly does the job. 

Q. Is the District 1, in your Exhibit 104, is that the district 

that says to you that you can draw a compact African American 

district and that's why you need to? 

A. I would say yes. 

[*362] Q. Briefly, to give the Court a flavor of some of the 

things you were dealing with. 

A. District 2 obviously was a swing district, a hop up 

district. You just had the election between Congressman 

[*363] Etheridge and Congressman Thunderburk and the parts 

and nature of that district was of concern to legislators and the 

public and people were weighing in on that. 

Q. And you had a freshman Democratic congressman in 

that district? 

A. Yes, we did. And the same for the Third Congressional 

District. Congressman Jones represented that district and he 

was really the only Republican in the east and Representative 

McMahan, I think, although he never specifically told me what 

the conversations were going on, I could see from his actions 

that he was certainly trying to protect the only Republican 

congressman that was in the eastern part of the state and that 

came into the negotiations. 

 



  

21 ja 

[#364] Q. Did various concerns with 2, 7 and 4 impact on 1, 

the shape in terms of where 1 -- 

A. Yes. Any time you dealt with a problem in those 

districts, since it is adjacent to 1, the First District, oftentimes 

you had to move some precincts or move a county. So you had 

to keep an eye on what was happening with 1 because it all 

works together, it's a chain reaction. 

Q. So whatever you might have wanted to do with 1 or 3, 

you had to look at all the districts? 

A. Yes. Because when you move population out of or into 

a district, you have to go and make it up somewhere else 

because we're dealing with 552,000 some odd people that we 

had to draw and these districts had to keep it under a 1,000 

people difference. With the ultimate plan, you have to go right 

down to the person. So keeping population [*365] even was 

always a challenge when you had to go and try to fix one 

problem, you sometimes would create another problem in 

fixing a problem that you had. 

Q. In ultimately drawing District 1, what considerationwas 

given to race? 

A. We felt that it was important to have a 

majority/minority district. Once we found out that you could 

draw one that met the test of Shaw v. Hunt. So from that 

standpoint, we did pay attention to race to have a 

majority/minority district. 

Q. Now, in the First District was there any particular 

percentage that you were looking at and that you were talking 

about? 

A. We wanted to have over -- at some point over 50 

percent of the population. 

 



  

22 ja 

Q. Why was that? 

A. Just as I testified to earlier, there is a large concentration 

of African Americans who live in northeastern North Carolina. 

We felt that the Voting Rights Act would require if there was 

evidence that was presented to the committee about past 

patterns of discrimination and it's just the right thing to do, we 

could do it easily and draw a nice district, and we did it. 

[*368] A. District 1 is a largely agrarian rural district. It has 

a lot of medium sized towns. I think uniquely eastern North 

Carolina you have the 30 to 50,000 population towns with 

largely rural areas. A lot of those counties are largely poorer 

counties, they are very high up on our economic tiers of 

depressed counties, so I think that there's a great community of 

interest in northeastern North Carolina with those counties that 

are up there. 

[#369] A. I met with a group of largely African American 

constituents, Senator Jeannie Lucas, who represents Durham. 

I met with them and talked with them a great deal and they very 

much wanted to remain in the 12th. They very much wanted to 

remain in Congressman Watt's District 6 because they -- they 

were satisfied with his representation. It was a largely urban 

district with the same type of issues that urban Durham has. 

And we talked and looked at the Shaw v. Hunt case, and there 

was just no way the Court would have accepted a move to the 

12th going all the way to Durham County. That just would not 

work. 

Q. What about putting it in the First District? 

 



23 ja 

A. It was discussed, but there was just too much disparity 

of interest there. I don't think that Durham has a lot of interests 

that are the same as the agrarian rural northeastern counties and 

I don't think particularly that the group of people, Senator 

Lucas, people that I was talking to, very much wanted to be in 

the First District. 

In addition, if you went down and got those precincts in 

Durham County that had been in Congressman Watt's old 

district, I think maybe you may have run into a constitutional 

problem with the First District in reaching out that far. And, 

also, if you did that, that created a partisan problem for the 

Fourth District. 

Q. What was that problem? 

[¥370] A. That was a district that was leaning Democratic and 

if you went and took those Democratic votes out of the Fourth 

District then you had a problem with the Fourth District no 

longer necessarily being Democratic leaning. So for all of 

those reasons, we didn't do that. 

[*372] Q. And can you remember right offhand what were the 

biggest fights that you had to deal with negotiating to your final 

plan? : 

A. Probably the biggest fight was the partisan nature of the 

2nd and the 3rd. There were lots of other problems that arose, 

for example, in trying to shore up the 8th District. The idea 

was to move east and there were concerns from Congressman 

McIntyre that he didn't want the 8th District coming too far into 

Robeson County. The Lumbee Indians were concerned about  



  

24 ja 

being removed from the 7th and going back to the 8th or going 

into the 8th. And those were problems that we had during the 

process, but those eventually were ironed out. 

Q. Were there immediate problems with District 3 when 

you and Representative McMahan started negotiating? 

A. Yes, there were some problems with District 3. They 

didn't like the way we had drawn District 3. We didn't 

particularly like the way they had drawn District 3, but I think 

we ended up more toward their idea of what District 3 ought to 

be than our plan. 

Q. Now, do you recall one of the easily decided the hottest 

issues when your plan first came out about District 3 had to do 

with the incumbent? 

A. Well, you mean Walter Jones, Congressman Walter 

Jones, District 3? The House made certain that he has to 

[#373] be in the 3rd District. His home was in actually the 

First Congressional District under the '92 Plan and he got 

elected to the 3rd District anyway, but had received some 

criticism because he didn't live in the district and that was an 

important point that Representative McMahan made to me, that 

they needed to make sure that Congressman Jones resided in 

the 3rd District. 

Judge Boyle: So that incursion that runs in north, west, 

southeast corridor up into Pitt, to Farmville all is the product of 

providing a residence for the incumbent? 

The Witness: That's how we got there, yes, because his 

home is somewhere there toward the end of the line. I don't 

know specifically where his home is. I just know that was an 

issue and that was -- that's how we had to get up -- he lives in 

Farmville. 

 



  

25 ja 

Ca 

[#374] Judge Boyle: So if you had devoted all of Pitt and all 

of Craven -- not all of Craven, but the contiguous part of 

Craven to the First, you'd have cohesive, geographically 

cohesive district, but you wouldn't have the Congressman in the 

district he represents? 

The Witness: That's right, because he lives in the 

Western part of Pitt County. 

Judge Boyle: Right. What was the purpose in taking 

the 3rd around to Lenoir and Wayne? 

The Witness: Well, it's hard to pinpoint any one 

particular reason as to why you did something, but I think one 

of my earlier plans had put Wayne in the Second District and 

the House Republicans and Representative McMahan gotten 

word -- this was from my talking with him, this is what I 

gleaned -- that since Congressman Jones represented Wayne in 

the old district, that he very much [#375] wanted to continue 

that representation of Wayne, I believe was one of the reasons 

why that was done. And, you know, it's -- well, go ahead. 

It's hard to remember all of the reasons, because there 

could have been other ancillary reasons why we did what we 

did because it's always a chain reaction. But that was one of 

the reasons I specifically recall because one of my earlier plans 

had put Wayne in the 2nd, and that was a real concern. 

* x * 

 



  

26 ja 

[#378] A. To convince people, we made a dramatic cosmetic 

change actually and real geographic change in the 12th District 

and the 1st District. I talk about how we split less counties and 

how we had not split precincts except for two of them, that we 

had tied together communities of interest, that we had a plan 

that was fair, a partisan balance, a 6/6 split, a plan I thought the 

public would [*379] support and plan that people would have 

a better knowledge of what district they were in. 

Judge Boyle: Do all of those arguments hold true 

today? 

The Witness: For the ‘97 Plan? 

Judge Boyle: Yes, sir. 

The Witness: Absolutely. Yes. 

Judge Boyle: But the ‘98 Plan is not geographically 

compact and you now have the experience of one election 

under the ‘98 Plan and none ever run under the ‘97 Plan, so 

how do those arguments remain valid? 

The Witness: I guess that you can use a compass and 

a computer to make every district as geographically compact as 

it can be, but there were many other factors that we considered 

in this matter. For example if you are looking at the partisan 

nature of the 12th District, since that's what we mainly dealt 

with, I think that a Democrat has a much better chance under 

the ‘97 Plan than under the ‘98 Plan. 

Judge Boyle: Only as to the 12th District, you make 

less vulnerable the 5th and 6th and 8th, don't you? So you 

trade off three districts that conceivably may be "less in play" 

under the '97 Plan and make one district the 12th, almost a sure 

thing? 

 



  

27 ja 

The Witness: Well, I don't think that under the [*380] 

way the voting results have been over the past few years that 

there would be any chance that a Democrat could win in the 6th 

and in the 5th and in the 10th, regardless of whether it's the “98 

or ‘97 Plan. 

Judge Boyle: But there's marginally more chance in the 

‘08 Plan than in the ‘97 Plan? 

[*381] Q. Okay. There's been some discussion about whether 

or not in the ‘97 Plan that the 8th District could be made more 

Democratic or some Democrats from Mecklenburg County 

could go down there and use those Democrats in the 8th. Were 

there certain constraints about the 8th in the 1997 Plan when 

you were working on it? 

A. Well, at the time we were working on this, the 8th was 

represented by the dean of the North Carolina delegation, 

Congressman Bill Hefner, who had been there a long time. He 

had a strong core of support in the legislature in his district. 

And one of the things -- one of the results of the plan, although 

I know that the district eventually was won by a Republican, 

this time by a slight margin, one of the accomplishments of the 

plan was to significantly improve the Democratic performance 

of the 8th District from the 1992 Plan to the 1997 Plan. 

Congressman Hefner had been elected because he was an 

incumbent and had been there a long time, but his district had 

increasingly become more Republican leaning and the best way 

was to move the district eastward because that's where most of 

the Democratic voters were. That's what we did, although we 

 



  

28 ja 

didn't move it as far as I wanted to move it. We came into play 

with Congressman McIntyre, but [*382] Congressman Hefner 

was satisfied. He was moved out of Rowan and he wanted to 

keep all of Cabarrus because that was his home county and he 

did not want to go into Mecklenburg. And to get to the 

Democratic voters in Mecklenburg, you have to go through 

strong Republican suburban districts, so that was just never 

considered and was never an option. Now, there was a plan 

presented -- 

Judge Boyle: He had to want to get rid of Moore, too, 

didn't he? 

The Witness: Yes, we did that too. We moved to 

Cumberland. I lost my train of thought. 

Oh, Senator Cochrane had presented a plan similar to 

Representative Morgan's plan that you asked me about earlier, 

which went from Mecklenburg all the way to Robeson, but, and 

I talked with Senator Cochrane about that and other 

Republicans who were pushing the plan, I just told them from 

the partisan nature of the plan that it just would not. Democrats 

and the Senate would not do that and it was viewed as a 

partisan plan, is what it was viewed as and I think that's 

probably what it was. 

Q. Okay. Now, at some point in time, the plan passed and 

did you have occasion to go and visit with the Department of 

Justice? 

A. Yes. 

Q Now, I don't believe you were here for Mr. Everett's 

[*383] opening speech, but he has alleged in his opening 

statement that the state was under the gun to the Department of 

Justice and their maximization policy and had to draw a black 

 



  

29 ja 

district. In terms of the Department of Justice, had you had any 

contacts with them when you were drawing the plan? 

A. No. 

Q. And what was your first contact with them? 

A. When I flew to Washington with members of the 

Attorney General’s office and some other people to present the 

plan to them, that was the first contact I had with the Justice 

Department. 

Q. Was it the last? 

A. Yes. 

Q. And was it a memorable meeting? 

A. No. I mean, I think that they understood the ruling in 

Shaw v. Hunt and there was very little problem with 

preclearance. I didn't think that that would be a real concern. 

You never know what Justice is going to do, so we treated it 

seriously and went up and talked to them about what we had 

done. And I had mentioned in my deposition numerous times 

racial fairness was important, and I think the plan was racially 

fair. That I never thought that that was a serious danger. We 

were much more concerned with making sure that the plan was 

[#384] constitutional under Shaw v. Hunt. 

Q. And that it was by partisan? 

A. Yes, that was the practical consideration of -- just let me 

step back a minute. I would very much love to draw these 

districts in a vaccuum, but you have to get majority votes. In 

the legislature, partisan considerations come into play, and 

where people live come into play, and incumbents come into 

play. And it is very difficult trying to practically and 

realistically put together majority votes without taking these 

 



  

30ja 

things under consideration, and that's what we did. I was given 

a job to do and I wanted to make sure I did it. 

Q. And you were attempting to do it in a lawful manner, I 

suppose? 

A. Yes. And I think we ended up with a plan and this was 

foremost in my mind to serve the public better and I think this 

plan does. I think this plan is a plan where people can, in 

general, know where they vote. It's a fair plan. 

[#386] Q. So -- well, the question was: wasn't it necessary? 

The question I asked you, and you said, didn't you, I have said 

that we thought that that was the case that we had to do that. 

Isn't that the question you were asked? 

A. Yes. And we had to do it for a variety of reasons. I 

would have felt more uncomfortable about going for 

preclearance had we not had a majority/minority in the Ist 

District. 

Q. You would have felt more uncomfortable? 

A. Yes, sir. 

Q. And you would have felt it wouldn't be approved? 

A. That was a potential. I don't know whether that would 

be the case, but yes, I thought that would be a potential. 

Q. Before you went up to the Department of Justice for this 

meeting, did you have any discussions with the Attorney 

General’s office about preclearance? 

A. Yes. 

Q. And weren't you advised at that time that it was very 

unlikely to be precleared without a majority black district? 

 



  

31ja 

A. I don't remember specifically whether that was told to 

me. 1 do remember Mr. Stein coming to the [*387] 

redistricting committee and other attorneys advocating for a 

majority/minority district and that there could be Voting Rights 

Act problems if we didn't do that, but you can do it fairly easily 

and draw geographically compact district. So it was the right 

thing to do any way. So for all of those reasons, we did it. 

Q. And it would have been wrong not to do 1t? 

A. I think it would have been wrong not to do it. 

Q. Let me ask you this, though: Isn’t it true that African 

American voters, as members of the Legislature are very 

important in the Democratic party political process? 

A. All voters and all kinds of people are important in 

[#388] the Democratic political process, yes. 

Q. Isn’t it also true approximately 95 percent or even 

higher of the African Americans of North Carolina who register 

to voter register as Democrats? 

A. That sounds like a figure that is correct. I don’t know 

the figure personally, but is sounds like a figure that is correct. 

Q. North Carolina has closed primaries for the Democratic 

primary? 

A. I have been — I believe you can vote in the Democratic 

party if you are unaffiliated. 

Q. You can’t vote if you are a Republican or with the 

Reform party? 

A. That’s correct. 

 



32ja 

Q. Under those circumstances, isn’t it true that African 

Americans are a very strong political influence within the 

Democratic party? : 

A. I would say that, yes; yes, that’s true. 

Q. And wasn’t it your belief, from what you had heard and 

seen as a representative and otherwise, that the African 

American political faction, as it were in North Carolina, 1s very 

cohesive, that African Americans are not only Democratic but 

(unintelligible) in the political process? 

A. I wouldn’t want to go as far as to say that, but much 

[#389] less so today than it used to be, I would think. 

Q. All right. Wasn't it true, in your view, that African 

Americans were very anxious to have as many African 

American members in Congress as possible? 

A. There were many African American, yes, who thought 

it was important to have African American members of 

Congress representing North Carolina. Yes. 

Q. And many of them thought it was important to have two 

majority black districts back in 1992, correct? 

A. Yes. 

Q. And didn’t many of them think that it was important to 

have as heavy a minority population, African American 

population in the constituted 12" District as could possibly be 

put there? 

A. I would say that there would be many African 

Americans who would advocate that, yes. 

 



  

33 ja 

[*395] Q. Before that in the 1991 Plan, District 12 had 

meandered off to the east somewhere, or do you recall? 

A. I really don’t recall where 12 was in that first plan. 

Q. With respect to ‘92, ‘97, ‘98, would you say that 

Mecklenburg had been the hub of the 12 District? | 

A. Hub is probably a good word, yes. How’s anchor? 

Hub or anchor. 

Q. Isn’t that the word you used in your deposition? 

A. I did. That was a good word. 

[*396] Q. With respect to the 1992 Plan, were you 

‘aware that Mecklenburg company, in particular Charlotte, 

were split in such a way that most of the black precincts were 

put in the 12 and most of the white in the surrounding 

district the 9"? 

A. I know there was a lot of attempt to make certain that 

there was a certain African American percentage in the 12 

District during that period of time, so it would make sense 

that that would be what would have happened. 

* %* % 

[#403] A. 1don't think anything is assured. Congressman 

Watt was an incumbent. We paid attention to all incumbents 

and, yes, we looked at race. As I testified before, it was 

important racial fairness, but we did not specifically reach 

any type of threshold in race in the 12th District. 

Q. You say you didn't try to reach any threshold in race. 

As far as the ‘97 Plan, the change for the ‘92 Plan, didn't you 

basically try to achieve as close to 50 percent as you could 

get without getting there? 

 



  

34a 

A. No, we did not have any type of goal. We first 

looked at trying to cure the constitutional defects and made 

sure that it was still a strongly leaning Democratic district. I 

think the fact that it has a relatively high number of African 

Americans is a fine thing. It was a benefit. It was one of the 

considerations particularly there were as you've asked me 

before, there were people who were pushing for a higher 

percentage, but there was also the consideration of making 

sure that the Sixth [*404] District was more Republican. 

That was something that Congressman Coble wanted, so all 

of those factors came into play. 

Q. Nevertheless, at the end of the day in 1997, all of the 

predominately black precincts in Mecklenburg had been in 

the 1992 Plan were retained in the 1997 Plan; isn't that true? 

A. Probably most all of them were, but with the addition 

of a whole lot more. 

0. And that was because of the deletion of Durham and 

of this sliver over in Gaston? 

A. Because of what the Court told us to do, we had to 

make sure that this plan looked a whole lot nicer than it did 

and race didn't predominate. 

* % * 

[*406] A. We cut off Gaston, we cut off Alamance, we cut 

off Orange, cut off Durham and took all of those out of the 

12 and kept the core, the Triad to Mecklenburg core fattened 

it, made it look nicer. Took in a lot more Democratic leaning 

 



35ja 

voters, systems as we could and made it a nicer looking 

district. 

Q. In you take in African Americans, add them, you are 

taking in always also Democratic leaning voters 95 percent 

of the time; isn't that true? 

A. Yes. African Americans generally are strongly 

Democratic leaning voters, yes. 

[#408] Q. Now, with respect to the map of the 12th District, 

I just want to be sure on this. Looking at this map, would 

you be -- and the map is Joint Exhibit 106. Would you be 

able to identify for me what might be referred to as the 

"Greensboro black community"? | 

A. Only by the fact that you have on this map across 

here precincts that say 40 to 100 percent black. Because of 

this map, I can point it to you and say, there, but I could not 

tell you if you gave me a map without that information on it 

where that would be. 

[409] Q. You would think that area identified by the cross 

red or the checker red marks on Exhibit 106, those with 40 to 

100 percent concentration would be what's referred to as the 

Greensboro black community? 

A. I don't have a concept of what the Greensboro black 

community ask. If you are taking into account those 

precincts that have only 40 percent African American, then  



  

36ja 

you have substantially less than the majority of the African 

American. This is the first time I have seen this map. I 

wouldn't be able to say where the Greensboro black 

community would be. 

Q. By the same token, were the High Point black 

community or Winston-Salem or any of the other 

communities there? 

A. Right. 

[*411] Q. Then, looking at the page referring to e-mail 

for February 10, 1997, do you see who is addressed from and 

to whom? 

A. It is from Gerry Cohen to me with copies to Leslie 

Winner. 

Judge Vorhees: Copy to whom, please? 

The witness: Leslie Winner. 

Q. Now, with respect to Gerry Cohen, did you testify 

previously he was the person who was primarily doing the 

technical work, the handiwork, as it were, in getting the plans 

together? 

A. Yes. 

Q. Had he been assigned to you? 

A. Yes. 

Q. And Leslie Winner, she was a Senator at the time? 

A. Yes. 

Q. And no longer is a senator? 

A. That’s correct. 

 



37 ja 

Q. Do you know whether or not at an earlier time in 

connection with the 1991 and ‘92 Plans, enacted by the 

General Assembly, whether Leslie Winner had been 

involved? 

A. She was an attorney involved in the process. I’m not 

quite sure whom she represented, but she was an attorney, 

maybe an advisor to the House. 

[*412] Q. She had been representing the General 

Assembly? 

A. I can’t say for certain, but she was an attorney 

involved in redistricting and she had a lot of knowledge 

about redistricting, yes. 

Q. Senator, I was asking you about this memo, or e-mail 

rather, to you from Gerry Cohen. And I believe that’s 

Exhibit 58 in the deposition exhibits. Senator, it’s a fairly 

short e-mail or memo. I was asking about the people 

involved. I was asking you about Senator Leslie Winner. Is 

she the same Leslie Winner who’s an attorney in Charlotte 

and now the attorney for the Charlotte Mecklenburg School 

District? 

A. Ye: 

Q. And she had experience in the redistricting process? 

A. And Gerry Cohen had been the person who had 

drawn the 1991, 1992 Plan as well? 

A. I don’t know that personally, but that’s something I 

presume from conversations. I think that’s correct.  



  

38 ja 

Q. And from his experience in drawing those plans and 

otherwise, you discovered that he was quite familiar with 

[*413] the North Carolina counties, precincts, districts and so 

forth? 

A. That is correct. 

Q. Now, there is the last sentence of this e-mail states: I 

have moved Greensboro black community into the 12th and 

now need to take about 60,000 out of the 12th. 

Do you know what he was referring to when he said 

he had moved the Greensboro black community? 

A. I do not specifically remember even getting this 

e-mail. And that is not a specific instruction that I would 

have given to him, but I am presuming that he is talking 

about moving the part of Greensboro that we had already 

discussed previously. 

He and I at some point had discussed moving the 

Guilford County area into the 12th and for all of the reasons 

that I have talked to you about before, making it a stronger 

Democratic district, connecting the Triad. It made 

everybody happy. 

Obviously, Congressman Coble's district was better, 

Congressman Watt certainly wanted more of his constituents 

than he had before and he was certainly happy getting more 

of those constituents and happy getting a higher percentage 

of African Americans in his district. And for all of those 

reasons we decided to go into Guilford County. But I am 

presuming that this is Mr. Cohen's [*414] descriptive term 

for that part of Guilford County that we eventually moved 

into the 12th District. 

 



  

39ja 

Q. Now, that's the part that we have been -- we looked at 

earlier the map that was predominately black? 

Ms. Smiley: Objection. Form of the question, unless 

there's a foundation that he knows. 

Judge Thornburg: Overruled. 

A. You know, I'm a little embarrassed sitting here. I'm 

not quite sure whether it's majority African American or not, 

but I know there's a substantial number of African Americans 

in that part of Guilford County that we moved to. 

[*422] Q. What, with respect to the cause of balance, did 

you hear your legislators talking about partisan balance, or 

was that a concern? 

A. Most legislators would want a plan drawn that would 

be partisan in their party's favor. Partisan balance came 

about because we had to make sure it passed both chambers, 

and that became a driving force in the process. 

Q, So as far as you could tell, there was no strong 

feeling when the session began on the part of the legislator 

individual legislators about maintaining partisan balance? 

A. Probably not at that time because they were not 

thinking about the practical aspects of getting a plan passed. 

I certainly was and Representative McMahan was. And as 

the process went forward into 1997, that became a very 

important issue in my going sure, that we got the plan 

passed. And it was an issue I think that was good for the 

public as well. 

 



  

40 ja 

Q. So in the initial point when they are coming together 

to begin the session, the legislators would have been more 

concerned about keeping counties together, not splitting 

them in redistricting and having minor representation than 

[*423] they would have been about partisan balance? 

Ms. Smiley: Object to the form of the question. 

Judge Thornburg: Overruled. 

A. I think that's very difficult to say. At that point going 

into the session, partisan balance hadn't become the 

important issue that it became once we started negotiating 

plans. Like I said, that's not the kind of thing that legislators 

like to talk about publicly. It's not pretty and I don't 

particularly enjoy sitting here talking about it. But it became 

a very important issue in the practical problem of getting the 

plan passed through the legislature. 

% kik 

[#424] Q. Now, did the issue of minority representation 

maintain importance as you went through the process? 

A. Racial fairness was important to this plan, yes. 

Q. Well, by “racial fairness”, what do you mean? 

A. I believed that we needed to have a majority/minority 

district in the 1st District, and I think that that went a long 

way toward racial fairness and that the plan overall was fair 

to African Americans across the state. 

Judge Boyle: Suppose you were in the minority and 

the opposing party is in the majority and they decided to 

redistrict and not only went up to 50 percent African 

American in two districts, but went all the way up to, say, 80 

 



  

41 ja 

percent. Would that be racial fairness or would that be racial 

unfairness? 

They could make two districts safe beyond belief, but 

-- and that could be done for partisan reasons, if you follow 

me. It's a slippery slope you get on when you decide you are 

going to engage in some use or acknowledgment of race. 

[*425] A. Well, that's true, but I did not read the Shaw v. 

Hunt case to say we were doing race. 

Judge Boyle: So politics could override race if 

politics were the true star of your decision? 

The Witness: Yes, it could have been, could have. 

Judge Boyle: Some party could decide they would 

put 80 percent minority in a district and thereby deprive their 

opponents of what would be predictable support in another 

district? 

The Witness: Well, I think it's very, very difficult to 

draw a district in North Carolina with an extremely high 

percentage of African Americans under Shaw v. Hunt. 

Judge Boyle: But you did itin ‘92 in District 1. All 

you would have to do would be to hopscotch around to other 

counties. In the 7th, you could make it more 

minority/majority than it is now. 

The Witness: The Supreme Court told us we couldn't 

do that. 

Judge Boyle: I thought when you went back in ‘97, 

you felt like you had to do that in order to pass the Justice 

Department? 

The Witness: No, not with respect to the 12th. With 

respect to the 1st, we thought that it was important [*426] to 

have a majority/minority district; that wasn't the overriding 

 



  

42 ja 

factor. If we could not draw a district that looked reasonably 

geographically compact and met the other criteria, then we 

would not have drawn a majority/minority district. But it all 

fit nicely together, so that's why we did it. 

Judge Voorhees: Now, you testified that the 

legislature, in coming up and reviewing various plans over 

the process of developing the ‘97 Plan, was mindful of the 

court decision in the Shaw case and Voting Rights Act and 

the other factors that you have mentioned. 

Now, would it be accurate to say that the various 

members of your committee and of the legislature were 

cognizant of the percentages of minors who were being 

placed into the various districts, but particularly the 12th and 

the 1st? 

The Witness: Yes. I mean, that was something that 

was printed out for every district and yes, everyone would 

have looked at that figure and some members would have 

cared more about it than others. 

Judge Voorhees: I may have misunderstood you 

earlier. I thought you said you didn't know what the final 

percentage was on 12 when the ‘97 Plan was enacted. 

The Witness: 1did. I'm sure that I did. Yes, I did. 

[#427] Judge Voorhees: If thought otherwise, I just 

misunderstood what you said? 

The Witness: I think he asked me what percentage of 

African Americans were in Guilford County that we put into 

the 12th. I can't remember. I didn’t remember that particular 

figure. 

Judge Voorhees: I think the question had to do with 

whether you were trying -- that the relevant powers in the 

 



  

43 ja 

legislature were trying to keep the number just under 50 

percent? 

The Witness: No, that was not. 

Judge Voorhees: You say you weren't trying to do 

that? | 
The Witness: No. 

Judge Voorhees: In so saying, you are not saying the 

legislature was not aware of the plans discussed? 

The Witness: We did know, absolutely we knew a 

lot of people I think were happier the African American 

percentage went up as a result of Guilford County being 

moved into the 12th. 

Judge Voorhees: Was there a viable motive within 

the legislature to keep it just below 50? 

The Witness: No. 

Judge Voorhees: The final percentage was sheer 

[*428] happenstance? 

The Witness: Absolutely. I mean, if you were trying 

to do that, then you would be running afoul of what the 

Court told us to do and that's just not what we did. 

Judge Voorhees: All right. 

By Mr. Everett: 

Q. In one of your statements I think made on March 25, 

1997, to the meeting of the House Committee on 

Congressional Redistricting you said, as I recall, see if this 

sounds right: I think overall it provides for a fair 

geographical, racial and partisan balance throughout the state 

of North Carolina. Does that sound right what you said? 

A. Yes. 

 



[¥429] Q. I'm reading what purports to be a copy of a 

statement you made to the March 25, 1997, meeting of the 

House committee. I think that overall it provides for a fair 

geographical, racial and partisan balance throughout the 

State of North Carolina. Now, what were you referring to? 

Was that the plan that you were referring to? 

A. I would assume that that's what I was referring to. I 

said many times I thought the plan was racially fair and -- 

Q. Racially fair. What do you mean by "racial balance"? 

A. I don't know. I don't know what particular context I 

was making. 

Q. Well, let me ask you this: Do you know what you 

mean by "partisan balance"? 

A. Yes, sir. 

Q. What does that mean? 

[*430] A. Keeping the 6/6 split. 

Q. All right. When you use the term "racial balance," 

wouldn't it follow that you were referring to maintaining a 10 

to 2 racial balance between Whites and African Americans in 

congressional delegation? 

A. No. I think I testified in the deposition and the 

testimony earlier that African Americans would have a fair 

shot to win both the First and the 12th Districts, and I think 

that's racially fair. 

Your Honor was asking me, I think you had gotten 

the impression that we didn't pay any attention to race, but 

we did pay attention to race. That was one of the factors that  



  

45 ja 

was considered. But it was certainly not the predominate 

factor. I talked about why all the different reasons, why we 

did the Mecklenburg to the Triad District and certainly the 

fact that an African American has a fair shot at winning that 

district is part of racial fairness and I have testified to that. 

Q. I want to ask you more about what you mean by "fair 

shot." With respect to the earlier testimony you gave and 

testimony you gave at the deposition, didn't you say that you 

were -- you had to have a majority black First District? 

A. For a lot of reasons I thought that was a very 

important thing to do. 

[431] Q. And I asked you whether it was necessary to have 

it? 

A. I don't know whether it was necessary or not. I think 

probably it was important for three reasons. It was numerous 

reasons, but, one, I think trying to get votes into the General 

Assembly. I think we would have lost a lot of votes if we 

had not done that. Secondly, we may have run afoul of the 

Voting Rights Act if we had not done that. So all of those 

things together were important. I thought we had a lot of 

interest that we needed to make sure to keeping the agrarian 

core all of that was important in dealing with the First. 

Q. You might have run afoul on preclearance with the 

Department of Justice under Section 5? | 

A. We may have. 

Q. When you say something “had to be”, doesn't that 

mean that's a predominate motive? 

A. Well, I think that it needed to be and should have 

been for many reasons, and I have given you those reasons. 

It being the right thing to do. Needing the votes, past history 

 



  

46 ja 

of discrimination, voting patterns, potential Voting Rights 

Act, violations, preclearance, all of those things added up. 

This is something we ought to do, so we did it. 

Q. You should -- when you say you “had to”, doesn't 

that mean it was mandatory and that was predominant? 

[¥432] A. 1don't know what your question means about 

who was making it mandatory. All of those things told us 

that we needed to do it, so we did it. 

Q. I believe you earlier testified that you thought it had 

to be done? 

Ms. Smiley: Asked and answered, your Honor. 

A. To get the plan passed, because it's the right thing to 

do, because it may run afoul of the Voting Rights Act. If we 

don't -- you can draw a nice compact district by doing it. All 

of those things add up. 

Q. But didn't you say that having a majority black First 

District was something that had -- you said was not to be 

compromised? Did you -- didn't you say that? 

LA, I don't remember that exact language, but I think it -- 

I would agree with that. Yes, I think it was important. 

Q. So, basically, as you viewed the legislature had no 

choice but to create -- 

A. Of course we had a choice, we could have not done it. 

Q. You would have been close? 

A. Probably close to that. 

Q. Wasn't it your testimony if you would have any plan 

at all you would have to have a majority black district? 

A. That was very important. I'm not going to sit here 

and testify that we just simply would not have passed the 

 



  

47 ja 

[*433] plan if that had not been the case, but it's close to that. 

It was very important for all the reasons that I said. 

[434] A. It’s likely. 

Q. All right. With respect to the 12 District, I'll ask 

you the same question: Would you think it was highly likely 

that an African American would be the Democratic nominee? 

A. I think it would be likely. 

Q. Would it be likely in each of those districts the 

Democratic African American Democratic nominee would 

then be elected? 

A. I think it’s likely. 

Judge Boyle: This is all pure speculation. We live in 

a democracy. Anybody can run. If you chose to run in the 

12t District, you have widespread support around, 

everybody got behind you, you are a white male and you 

could easily be the nominee and win. 

The witness: He asked me earlier saying there was no 

doubt. Yes, there’s doubt. There’s doubt. 

Judge Boyle: Who's to say? 

The witness: He asked me the question. 

Judge Boyle: Yes, I understand. I'm critical of the 

question. 

By Mr. Everett: 

Q. You gave us your opinion on likelihood. I was 

asking you about it. 

 



  

48 ja 

A. You mean by personal opinion as to likelihood, but, 

[*435] you know, it’s far from a sure thing, but it’s likely — 

more likely than not. 

[¥436] Q. I'm going to ask you if indeed there are 60,000 

African Americans in Greensboro and the precincts are in the 

12th District. Do you have any interpretation of the sentence 

as to “now need to take about 60,000 out of the 12th” in the 

e-mail which was directed to you? 

Ms. Smiley: Object to speculation. 

[#437] Judge Thomburg: Overruled, if he knows. 

A. I don't know everything that -- I don't specifically 

remember this e-mail for one thing; and secondly, I don't 

know all the other things going on at the time. But I would 

presume -- and I know I'm not supposed to presume, but I 

presume the 60,000 we're talking about is total population of 

needing. If he went to Greensboro and put an area in 

Greensboro into the 12th that now he needed to take 60,000 

people out of the 12th in order to make the population 

correct. That's what I presume. 

Q. Wouldn't you also presume that the Greensboro black 

community approximated 60,000 when you read that? 

A. No, I would not. We certainly don't believe they 

were all African Americans in Guilford County that were put 

into the district. We looked at the Democratic leaning 

districts in Guilford County, and for all the reasons I stated, 

we put them in the 12th. 

 



[*438] Q. Let me ask you about earlier provisions, 

statements in this e-mail where it begins by stating: by 

shifting areas in Beaufort, Pitt, Craven Counties, I was able 

to boost the minority percentage in the 1st District from 43.1 

“percent to 49.25 percent. The District was only as the white 

percentage was 49.67 percent. 

Do you recall a change in the plans that were being 

prepared by Mr. Cohen, under your general direction, which 

achieved such a boost in the minority percentage? 

A. I don't remember this e-mail specifically and I do not 

remember these specific instructions about counties and 

precincts, but I do know when we were dealing with the 2nd 

and the 3rd and all of those things that go in between, that 

sometimes because it's beside the 1st, sometimes we would 

drop below or just below [*439] maj ority/minority and we 

would have to do things from time to time to have a 

majority/minority, but not radical types of moves. This 

e-mail, obviously, I don't remember it specifically, but 

reading it now had to do with that issue of African 

Americans and what percentage. You know, it could be that 

Gerry was just had that on his mind and used in that last 

sentence, used black community and Greensboro as a 

descriptive term. I don't know, that's not something that I 

would have instructed him to do. 

Q. Now, the next sentence: This was all the district 

could be improved by switching between the 1st and 3rd. 

And then reading further down, as to improvement, isn't it  



50 ja 

pretty clear that Mr. Cohen viewed it as an improvement to 

increase the African American percentage? 

A. I don't know what he was thinking, but, I mean, it's 

pretty clear that at this point we were in one of those times 

where we were trying to make sure that the district had 

majority/minority and he was probably operating under some 

other parameters in the 1st that he couldn't move for some 

reason or another, and I don't know what stage of the process 

this was. 

Q. Isn't it pretty clear, Senator, that he was informing 

you that he believed at least he was improving the district, he 

was informing you and Senator Leslie Winner that he was 

improving the district by switching precincts [*440] and 

increasing the African American percentage? 

A. I don't remember this specifically of the ones again, 

but probably we were in one of those situations where we 

had moved something in the First District dropped a little 

below 50 percent and we were getting it back up again, and 

that's what he meant by improvement, but I don't remember 

specifically. 

Q. And that would be in line with your belief that you 

had to have over 50 percent? 

A. Yes, sir. 

Q. And you were getting there one way or the other and 

he was looking at all the options? 

A. Not one way or the other, we had to get there making 

sure we had a compact district that looked good, that 

complied with Shaw v. Hunt and took into account all the 

other considerations I testified to here today.  



  

51ja 

dk % 

[*441] Q. So you gave this statement to the Senate and 

wouldn't it be inferred from that statement that Shaw v. Hunt 

was [*442] inapplicable as long as you didn't get to 50 percent? 

A. Let me tell you why I made that statement. It had not 

really occurred to me until this final plan had been prepared, 

that this was an argument for constitutionality that it wasn't a 

majority/minority district. 

In fact, Mr. Everett, you were over in the General 

Assembly and you came to see me and several other people and 

were telling people this was an unconstitutional plan. And alot 

of people have a lot of respect for you, including me, and there 

were people who began to ask me questions about the 

constitutionality of the plan. And in all of the other reasons 

that I gave I think were good arguments for the 

constitutionality, but this was an argument that came to mind 

said, wait a minute, where should the Court start looking at this 

issue as to when a district is predominately racial? And it 

became clear, made common sense to argue at least the process 

for the sake of argument that the test should not even be 

triggered if you don't have a majority/minority. 

I didn't start out this process by trying to get it just 

under majority/minority for that reason. That was an idea and 

an argument that came to me later on in the process and I 

consulted with the Attorney General’s office. They said that's 

a good argument to make, and I made it. 

 



FOURTH CIRCUIT 

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

BELLSOUTH TELECOMMUNICATIONS, INCORPORATED 

Plaintiff-Appellee 

  

V. 

NORTH CAROLINA UTILITIES COMMISSION 

Defendant-Appellant 

No. 99-1845 

(Consolidated with 99-1846 and 99-1847) 

FILE INDEX 

Correspondence 

Correspondence with client 

Miscellaneous (info. from Oral Arguments) 

Docketing Statement 

PLEADINGS 

See index attached 

RESEARCH 

4th Circuit Research 

US WEST COMM. v. MFS INTELENET (W.D.D.C) 

HB 161 
Backup info for Reply Brief 

Cases for Oral Arguments (TWO ACCORDIAN FOLDERS) 

Bell Atlantic-Maryland, Inc. v. MCI WorldCom, Inc., et al. (4th Cir - Brief of Appellee 

Public Service Commission of Maryland and other misc. pleadings) 

Bell Atlantic Telephone Companies v. FCC and United States, 99-1094 

(D.C.Cir, March 24, 2000) 

Information re: BellSouth v. Metacomm (US LEC) 

Backup info for Supplemental Brief 

Supplemental Authority Letter re: Vermont NOT SENT 

Brief in Opposition to Defendant Delaware Public Service 

Commission’s Motion to Dismiss 

MISCELLANEOUS 

Fear of Federalism 

 



  

Tos Thun £ Oct 
sai tfeel 

A. The Rowan County has -- had a helio lack eek 

areas allocated to the 12th District. East Spencer, East Ward, 

I believe it's South Ward, West Ward, those are predominately 

black and predominately Democratic and vote that way. 

Q. All right. Now, let me next ask you whether, from your 

knowledge of Rowan County and Salisbury and the knowledge 

of racial concentrations or dispersions in that county, whether 

you were -- whether you formed an opinion as to the 

predominate motive of the General Assembly in providing 

Rowan County as it did in creating the 12" District in the 1997 

Plan? 

_—"[*89]A. Inthe 1997 Plan, it's my -- 
Ms. Harrell: Objection to any opinion that he would 

express on that subject. The witness has not testified to 

anything that would allow him to testify to his opinion about 

the motive of General Assembly. 

Judge Thornburg: We'll sustain that objection at this 

point, Mr. Everett. 

By Mr. Everett: 

Q. Mr. Everett, in connection with this plan, could you 

state whether you see any way in which the 12th District in 

Rowan County corresponds to the racial concentrations that 

you just identified in Rowan County? 

A. Yes, it does. And there's a very classic example in the 

East Spencer Precinct that was split. It was split near Boundary 

Street and on the north side is most solidly black and on the 

south side very few white families live there. So it's evident to 

me, on its face, that this is racially gerrymandering. 

Judge Boyle: You have it African American on both 

sides of the boundary, the way you testified? 

 



  

Tia 

The Witness: I apologize. It's African American on the 

north side of Boundary Street and south side is predominately 

white on the East Spencer Precinct. 

Judge Boyle: That’s the same thing you said a minute 

ago. I may be misunderstanding. Before you said [*90]there 

were few, if any, whites south, oday. 

The Witness: There wer a very few whties south of 

Boundary Street. 

Judge Boyle: If it’s black on the north and no whites 

on the south -- 

The Witness: It’s predominately black. 

Judge Boyle: -- on both sides. Ifit’s black on the orth 

and there are o whties on the south, then it would -- do you get 

it? 

The Witness: Well, I may be missing something, sir, 

but in my opinion it went down Boundary Street to eliminate 

the few whites. 

Judge Boyle: Just the way you said it. 

The Witness: I apologize. sorry, your honor. 

Judge Boyle: Ifit’s black to the north and no whites to 

the south, isn’t it black to the south also? 

The Witness: I apologize, your honor. I may have 

misspoken. What I’m trying to say is to the north side of 

Boundary Street is predominately black, to the south side of 

Boundary street is predominately white. I apoligize. 

Judge Boyle: Okay. 

By Mr. Everett: 

0), Are both of them about qual in terms of concentration 

of people? 

 



  

  

8ja 

[*91]A. No, sir. The East Spencer Precinct has, I think, 

about five white families in it ont he osuth side of Boundary 

Street. 

Q. How many African American families? 

A. I don’t think there are any. 

Q. So there are only about five familie altogether on the 

south side? 

A. I the entire precinct, yes, sir. 

1295] Q. All right. With regard to the precinct of 

Salisbury in the 12th District in the ‘97 plan, what is the name 

of your precinct or the number? 

A. The name of my precinct? 

Q. The name or number it goes by. 

A. North Ward 2. I have to look up the number to be sure. 

It's precinct number 40. 

Q. Is that precinct majority white or African American or 

something else? | 

A. It's majority white. 

Q. And does it also tend to vote Republican? 

A. Yes, ma’am. 

Q. And it has -- to your memory it has a majority 

Democratic in registration; is that right? 

 



Mr. Stein: Objection. . 

Judge Thornburg: State that question again. A2r fer ) 

Q. In your opinion, is it possible to draw a Democratic 

district in the same general area of the state that is less bizarrely 

shaped than District 12 in the 1997 Plan? 

Mr. Stein: Objection. 

Judge Thornburg: Sustained. 

Q. Let me ask you, then: why do you not think that -- why 

do you disagree that it's a Democratic island in a Republican 

city? 

A. Because there are precincts nearby that are also 

Democratic leaning precincts and, as a matter of fact, my 

understanding is some of those precincts were included in the 

successor plan to the one we're talking about today. That plan 

I call the Winston-Salem Charlotte plan. 

Q. Which would be, I think, the ‘98 Plan? 

A. ‘98 Plan, the one we just voted under last Congressional 

election. 
xx *% 

* * *% 

[¥116]Cross Examination 

By Mr. Stein: 

Q. Mr. Williams, I’m on the Board. Here is a map that 

shows the 1997 Plan that was under litigation showing the 12th 

district in yellow and the 9th District in green. You’ve seen 

that? 

A. Yes. 

Q. And the 9th District in this plan has two whole counties, 

Cleveland and Gaston, that run along the southern border of 

North Carolina and part of Mecklenburg County; is that right?  



  

6ja 

A. That’s right. 

Q.. When you ran in 1994 you were running in the 

Republican Primary against an incumbent; were you not? 

A. No. 

Q. That was the time when Representative Myrick was 

first elected? 

A. That’s right. 

0). And at that time, what were the counties that were 

included in the 9th District? 

A. Mecklenburg looked very much the same, but there was 

only -- that county looks the same. Most of Gaston County 

was also in the 9th District and a little portion of Cleveland 

County. 

[*117]Q. Let me show you the map that we have been 

using here showing the 1992 Congressional Plan. It shows all 

of Gaston; does it not? 

A. . That would be wrong. 

Q. Because it goes into Gastonia, so that there was a 

portion of three counties in the 9th district at that time? 

A. That’s right. 

Q. And then the map drawers determined for the 1997 Plan 

to have two whole counties and parts of Mecklenburg; is that 

right? 

A. That’s right. 

Q. If they made a decision to include all of Cleveland and 

all of Gaston, that would then, for the 9th district, would 

determine how much of Mecklenburg, how many people in 

Mecklenburg would be in the 12th. First of all, you’d have to 

determine how many people you would need to get out of 

Mecklenburg to make a complete congressional district with a 

 



  

Tia 

district that included all of Gaston and all of Cleveland; isn’t 

that right, for one-person, one-vote purposes? 

A. I’m not quite following you. 

Judge Boyle: He means the last particular figure is: 

Mecklenburg County. The constant figure would be Gaston 

and Cleveland. If you decided on those two, the [*118]only 

choice you have is to make up the difference from the one you 

are making to make elastic or expandable. You follow me? 

The Witness: If you add voters in Cleveland County? 

Judge Boyle: No. If you take two as constant, you 

have to, by definition, make the third flexible or elastic. We 

understand. 

Mr. Stein: All right, sir. 

By Mr. Stein: 

Q. So that the choices you then have in Mecklenburg, if 

that’s what happened, would be if you are choosing one 

precinct then you would have to exclude another precinct or 

precincts. It’s kind of like the way they have the budget bill 

now. You have to pay for what you had. If you are drawing 

precincts in Mecklenburg, if you are including precincts in 

Mecklenburg -- I withdraw that, that was the worst question I 

ever heard. 

Isn’t it so, that in terms of whether you are making a 

decision about a particular precinct, if you include that precinct 

you necessarily then are making a choice between that precinct 

and another precinct or other precincts? 

A. Correct. I don’t think Mecklenburg changed very 

much. 

[*119]Q. Well, you will agree that the record is just going 

by appearances. Does Mecklenburg look any different? 

 



  

8ja 

A. Of course not. 

 



  

i lja 

97C-28F-4E(4) EXCERPTS 

MINUTES 

HOUSE COMMITTEE ON 

CONGRESSIONAL REDISTRICTING 

MARCH 25, 1997 

3:25PM. 

W. Edwin McMahan, Chairman 

[*2] [Chairman McMahan]: . . .I believe our Plan does a 

much better job than the Current Plan in providing geographic 

compactness,homogeneouscompatibility,and divides less than 

half the Counties than the current Plan does. At the same time, 

it recognizes racial fairness and is friendly to our incumbents, 

which we both determined on the front end to be an important 

consideration in this process. 

Now I hope that you the Members of the Committee 

will recognize this Plan as certainly not a perfect Plan, but a 

Plan that has been negotiated in good faith between both sides 

and will be found acceptable to you this afternoon. At this time 

I would like to call on Senator Cooper to say a few words. 

Senator Cooper: Thank you Mr. Chairman. I 

appreciate the opportunity to appear before your Committee. 

We are currently on the Senate floor debating the Excellent 

Schools Act so I need to get back as quickly as possible, but I 

would like to say that we as a Legislature were given the 

responsibility by the Courts before April 1* deadline to redraw 

these Districts. I think this agreement is a large step towards 

fulfilling that responsibility. It would be very easy to turn this 

 



    

2ja 

matter over to the Courts and avoid that responsibility. I think 

it’s also very easy to vote against the Plan because each one of 

us can find a problem with it. Those of you who dealt with 

Redistricting before realize that you cannot solve each problem 

that you encounter and everyone can find a problem with this 

Plan. However, I think that overall it provides for a fair, 

geographic, racial and partisan balance throughout the State of 

North Carolina. I think in order to come to an agreement all 

sides had to give a little bit, but I think we’ve reached an 

agreement that we can live with. I think it is much better than 

rolling the dice with the Federal Courts, and I hope that you 

will give it your due consideration. I also want to publicly 

thank Representative McMahan for working with me. It’s a 

very contentious issue and we have [*3] dealt with each other 

on an up front and honest basis from [t]he beginning, and I 

appreciate the opportunity of working with you on this 

Representative McMahan. 

[*3] Linwood Jones: The Plan we reported out last week 

was labeled Plan G. This is, of course, labeled ‘97 House 

Senate Plan. I’m doing this visually -- so I'm just going to give 

you some of the major differences, but in District 5, Ash and 

Yadkin have flipped between 5 and 10. In Iredell we have 

gone into Statesville, which I believe picked up the minority 

percentage of District 12 -- we came a little bit more out of 

Southern Rowan [*4] when we did that. District 7 and 8 down 

in the Cumberland, Robeson area is different -- we pick up a 

few more precincts along the western edge of Robeson County 

 



  

3ja 

-- Ft. Bragg goes into District 7, which is now represented by 

Congressman McIntyre. Sampson County is a little different 

in our Plan we passed last week -- we took a few more 

Northwestern Precincts from Sampson County into District 2 -- 

you can see we have retreated a little bit from that in this Plan. 

Wake County is different -- the major differences in Wake 

County are that a little more of Northwest Raleigh goes into 

District 4. Inside the Beltline, a little more of that comes into 

District 2 than what we had put in Plan G last week. Those are 

the major changes. There are a couple of small changes in 

Jones and Craven Counties, but for the most part District 3 and 

District 1 are essentially the same as last week. 

 



    

la 

INFORMATION SUPPORTING NORTH CAROLINA’S SECTION 5 

SUBMISSION FOR ITS 1997 CONGRESSIONAL REDISTRICTING 

PLAN 

The following information is submitted by North 

Carolina in support of its request to preclear the State’s new 

congressional redistricting plan enacted by the General 

Assembly on March 31, 1997. The numbered paragraphs 

correspond to the numbers of the rules of the Department of 

Justice, 28 C.F.R. §§ 51.27 and 51.28. In most cases, 

information documenting the information in numbered 

paragraphs is contained in an attachment bearing a 

corresponding number. (e.g. Paragraph 97C-27A 1s 

documented by Attachment 97C-27A). 

* % %* 

97C-27H. Authority and Process for Redistricting 

The North Carolina General Assembly is authorized by 

2 U.S.C. §2a and §2c and Article I, §§2 and 4 of the United 

States Constitution to redistrict its congressional districts. The 

prior redistricting plan was enacted by the General Assembly 

on January 24, 1992, and was precleared under Section 5 of the 

Voting Rights Act on February 6, 1992. The United States 

Supreme Court declared District 12 in this plan 

unconstitutional in Shaw v. Hunt on June 13, 1996. On 

remand, the three-judge panel in the Shaw case issued an order 

on July 30, 1996, permitting the use of the unconstitutional 

plan for the 1996 elections and giving the General Assembly 

until April 1, 1997, to draw a new plan. Chapter 11 was 

 



  

2a 

enacted in response to that order. A copy of the court order is 

attached as Attachment 97C-27P-2. 

The process leading to the enactment of Chapter 11 

began in the North Carolina House of Representatives in June, 

1996. The following is a chronology of events leading up to 

the enactment of the plan. The designation “AA” after a name 

indicates that the individual is an African-American. The 

designation “NA” after a name indicates that the individual is 

a Native American: 

June 13,1996: United States Supreme Court declares District 

12 unconstitutional in Shaw v. Hunt. 

June 14, 1996: House Speaker Harold Brubaker appointed a 

House Select committee on Congressional Redistricting. The 

committee was chaired by Representative Robert Grady. The 

other members were as follows: Representatives Carolyn 

Russell, Lyons Gray, Frances Cummings (AA), George 

Holmes, Julia Howard, Theresa Esposito, Ed McMahan, 

Richard Morgan, Mary McAllister (AA), Jim Crawford, and 

Linwood Mercer. This Committee never met. 

July 8,1996: Senator Marc Basnight, President Pro Tempore 

of the North Carolina Senate, appointed a Select Committee on 

Redistricting. The Committee was chaired by Senator Roy 

Cooper. The following were also appointed as members of the 

Committee: Senators Charles Albertson, Frank Ballance (AA), 

Patrick Ballantine, Betsy Cochrane, Richard Conder, Jim 

   



  

3a 

Forrester, Wib Gulley, David Hoyle, Don Kincaid, Bob Martin, 

Bill Martin (AA), Tony Rand, R.C. Soles, and Leslie Winner. 

July 10,1996: The Senate Select Committee on Redistricting 

met to discuss the Shaw decision and the feasibility of adopting 

new congressional districts in time for the 1996 general 

election. The Committee heard from Mr. Gary Bartlett, 

Executive Director of the North Carolina State Board of 

Elections, on the requirements for a shortened filing and 

primary election schedule. Senator Cooper wrote a letter to 

North Carolina Attorney General Michael Easley outlining the 

Senate’s position and requesting that Attorney General Easley 

inform the three-judge federal panel that it was impracticable 

to adopt new congressional districts in time for the 1996 

general election. The letter is attached as Attachment 97C- 

28F-4B(2). 

July 17,1996: The House Committee on Rules, Calendar, and 

Operations of the House released a redistricting plan 

(Congress-96-001) to the public. The plan is attached as 

Attachment 97C-27R-1. The House Committee on Rules, 

Calendar, and Operations of the House was chaired by 

Representative Richard Morgan. Its other members were as 

follows: Representatives Arlene Pulley, Jim Crawford, Jim 

Black, Joanne Bowie, Jerry Dockham, Theresa Esposito, Ed 

McMahan, Chuck Neely, and George Robinson. The 

redistricting plan was submitted by Representative Morgan to 

the Committee for its review, with instructions that the plan 

would not be voted on at that meeting. Representative Morgan 

read a statement to the Committee about the plan that is 

   



  

4a 

attached as Attachment 97C-28F-4A and announced that there 

would be a public hearing the following week on redistricting. 

July 19, 1996: The three judge panel issued an order asking 

for the opinions of Speaker Brubaker and Senate President Pro 

Tempore Basnight on the likelihood that the General Assembly 

would be able to draw a plan in time for the 1996 elections. 

The House was at the time and remains under the control of 

Republicans. The Senate was at that time and remains under 

the control of Democrats. The North Carolina congressional 

delegation, elected in 1994, was divided as follows: 8 

Republicans and 4 Democrats. Senator Cooper, acting on 

behalf of Senate President Pro Tempore Basnight, submitted an 

affidavit to the Attorney General that was filed with the Court. 

Senator Cooper stated in his affidavit that a new plan could not 

reasonably be enacted for the 1996 elections. Representative 

Morgan, acting on behalf of House Speaker Harold Brubaker, 

submitted an affidavit to the Attorney General that was filed 

with the Court. Representative Morgan stated in his affidavit 

that it would be practical to redraw legislative districts in time 

for the 1996 elections. Senator Cooper’s and Representative 

Morgan’s affidavits are attached as Attachments 97C-28F- 

4B(2) and 97C-28F-4B(1), respectively. 

July 24,1996: The House Committee on Rules, Calendar, and 

Operations of the House conducted a public hearing in Raleigh 

on July 24, 1996, to hear the views of interested parties on 

redistricting generally and on the plan released by the 

Committee the week before. A copy of the notice of this 

public hearing, which was published in legal ads throughout the 

   



  

5a 

State, distributed to the media through the media service 

“Xpedite,” and mailed to a list of minority contacts is attached 

as Attachment 97C-28F-2A. The list of the media 

organizations contacted by Xpedite is attached as Attachment 

97C-28F-4). The list of minority contacts is attached as 

Attachment 97C-28H. The transcriptof the hearing and sign-in 

sheets are attached as Attachment 97C-28F-3A. This 

Attachment includes exhibits submitted by the speakers at the 

public hearing. 

July 30,1996: The three judge panel issued an order allowing 

the 1996 elections to proceed under the unconstitutional plan 

and giving the North Carolina General Assembly until April 1, 

1997, to submit a revised congressional redistricting plan to the 

court for its approval. The order is attached as Attachment 

97C-27H-1. The General Assembly adjourned its 1999-96 

session on August 3, 1996. 

January 29, 1997: The North Carolina General Assembly 

convened its 1997-98 session on January 29, 1997. Speaker 

Harold Brubaker appointed a new House Committee on 

Congressional Redistricting. The Committee was chaired by 

Representative Ed McMahan. The following were named as 

members of the Committee: RepresentativesDewey Hill, Gene 

Arnold, Cherie Berry, Dan Blue (AA), Joanne Bowie, Walter 

Church, Jim Crawford, Arlie Culp, Don Davis, Theresa 

Esposito, Toby Fitch (AA), Robert Grady, Lyons Gray, 

Thomas Hardaway (AA), George Holmes, Robert Hunter, 

Larry Justus, Joe Kiser, Mary McAllister (AA), Richard 

   



    

6a 

Morgan, Warren Oldham (AA), Carolyn Russell, Edgar 

Starnes, and Ronnie Sutton (NA). 

Senator Basnight reauthorized the Senate Select 

Committee on Redistricting. The same members appointed to 

the first committee were appointed to this committee (See July 

8, 1996 entry for the names). Senator Hugh Webster was also 

added as a member. 

February 12,1997: The House Committee on Congressional 

Redistricting held its initial meeting, at which time Mr. Edwin 

M. Speas, Senior Deputy Attorney General, briefed the 

Committee on the Shaw litigation. Mr. Speas and Linwood 

Jones, Committee Counsel, answered questions of the 

Committee members. The transcript of this meeting is 

contained in Attachment 97C-28F-4E(1). 

February 20, 1997: The Senate Select Committee on 

Redistricting met and Senator Cooper presented a 

congressional redistricting plan (1997 Congressional Plan A) 

to the Committee. This plan is attached as Attachment 97C- 

27R-2. Senator Cooper announced that no vote would be taken 

on the plan so that the public could comment on the plan at the 

public hearing scheduled for the following week. The 

transcript of that meeting is attached as Attachment 97C-28F- 

4D(2). 

February 25,1997: The House Committee on Congressional 

Redistrictingmet. Representative McMahan presented a plan 

to the Committee that had been drawn in response to the Senate 

 



  

Ta 

plan. This plan, 1997 House Congressional Plan A.1, is 

attached as Attachment 97C-27R-3. Representative McMahan 

announced that no vote would be taken on the plan so that the 

public could comment on the plan at the public hearing 

scheduled for the following week. The transcript of that 

meeting is contained in Attachment 97C-28F-4E(2). 

February 26,1997: The joint public hearing was held in the 

Legislative Auditorium in Raleigh on February 26, 1997. The 

transcript of the public hearing and the sign-in sheets are 

attached as Attachment 97C-28F-3B. Exhibits submitted by 

the speakers at the public hearing are included as Attachment 

97C-28F-3B Ex. See July 24, 1996 entry for the distribution of 

the notice of the hearing. 

February 27 - March 18, 1997: Senator Cooper and 

Representative McMahan met to attempt to resolve the 

differences between the House version of the plan and the 

Senate version of the plan and submitted numerous maps to 

each other during a four-week period of negotiations. During 

most of the negotiation period, the primary point of contention 

was how Wake County would be divided between proposed 

Districts 2 and 4. With one exception, none of these plans 

containing offers and counter-offers were released to the 

committees or made public. The exception 1s 97 House 

Congressional Plan G, discussed below. However, all of these 

plans are discussed in 97C-27R and are included in Attachment 

97C-27R-12. 

 



  

8a 

Senator Cooper and Representative McMahan were 

uncertain if they could resolve their differences regarding Wake 

County before the Court’s April 1 deadline. They each called 

for meetings of their respective committees to take up their 

own plans. Senator Cooper introduced Senate Bill 433, 

containing 1997 Congressional Plan A, the same plan Senator 

Cooper had presented to the Committee weeks earlier. The bill 

was referred to the Senate Select Committee on Redistricting. 

March 19, 1997: The Senate Select Committee on 

Redistricting met. Senator Cooper presented Senate Bill 433, 

containing 1997 Congressional Plan A. See Attachment 97C- 

27R-2. Senator Betsy Cochrane presented an amendment that 

would substitute her plan, “Congress Cochrane,” for the plan 

offered by Senator Cooper. Senator Cochrane’s plan is 

attached as Attachment 97C-27R-11. The Committee approved 

the plan presented by Senator Cooper. The transcript of this 

meeting is attached as Attachment 97C-28F-4D(3). 

The House Committee on Congressional Redistricting 

also met on March 19, 1997. Representative McMahan 

presented a new plan to the Committee: 97 House Congress 

Plan G. See Attachment 97C-27R-4. Plan G was one of the 

more recent compromise proposals from Representative 

McMahan to Senator Cooper. Because House rules allow 

House committees to introduce bills, the passage of Plan G 

from committee in effect constituted approval to file a bill for 

introduction containing Plan G. The transcript of this 

committee meeting is attached as Attachment 97C-28F-4E(3). 

 



Oa 

March 24, 1997: Representative McMahan filed the bill 

containing Plan G on behalf of the Committee. The bill was 

given a number -- House Bill 586 -- and was referred back to 

the House Committee on Congressional Redistricting. 

Afterwards, Senator Cooper and Representative McMahan 

announced to their committees that negotiations would 

continue and that they still thought the differences could be 

resolved before the deadline. Senator Cooper and 

Representative McMahan agreed on a plan that they would 

each submit to their respective committees and chambers. 

March 25, 1997: The plan agreed to, 97 HOUSE/SENATE 

PLAN (and its contingent backup plan, 97 HOUSE/SENATE 

PLAN 0), was presented to the House Congressional 

Redistricting Committee. Representative Dan Blue offered an 

alternative plan for the purpose of changing the proposed 

District 4 back to approximately its current location. The 

amendment was defeated by the Committee. Representative 

Ronnie Sutton (Native American) offered an amendment 

involving Robeson and Cumberland Counties that was also 

defeated by the Committee because he did not have statistical 

data showing the effect of his amendment on the population of 

the districts at that time. The Committee passed 97 

HOUSE/SENATE PLAN as a proposed committee substitute 

for House Bill 586. The transcript of this meeting is attached 

as Attachment 97C-28F-4E(4). 

March 26, 1997: House Bill 586 was reported to the House 

floor and was calendared for debate. Representative McMahan 

presented an overview of the plan to the House.  



  

10a 

Representative Ronnie Sutton offered an amendment to move 

a predominantly Native American precinct in Robeson County 

from District 8 to District 7, where nearly all of the other 

predominantly Native American precincts were located. 

Representative McMahan had already announced in earlier 

remarks that he and Senator Cooper supported the Sutton 

amendment. The amendment passed by a vote of 117-0. 

Representative Mickey Michaux of Durham offered three 

successive amendments. These amendments represented, 

respectively, plans known as Fitch Michaux Plan A, 

Fitch/Michaux Plan B, and Fitch/Michaux Plan C. These 

amendments are discussed in more detail at 97C-27R and they 

are attached as Attachments 97C-27R-8, -9, and -10. 

The committee substitute for House Bill 586 was 

passed, with the Sutton amendment, by a vote of 87 to 30. Of 

the 18 members of the House who are minorities, 5 African- 

American members and 1 Native American member voted for 

the bill and 12 African-American members voted against it. 

The bill was sent to the Senate. A transcript of the House floor 

debate is attached as Attachment 97C-28F-4F(1). (The House 

does not record its debates. The transcript was prepared from 

a recording of the entire floor debate by the University of North 

Carolina Public Television). The relevant portions of the 

House Journal are included as Attachment 97C-28F-4G(1). 

The record of the votes is attached as Attachment 97C-28F-4H. 

March 27, 1997: The Senate Select Committee on 

Redistricting met to discuss House Bill 586 as it came from the 

House. The Committee voted for the bill. No amendments 

 



  

11a 

were offered during the committee meeting. See Attachment 

97C-28F-4D(4) for the transcript of this meeting. 

The bill was considered on the floor of the Senate the 

same afternoon. Senator Cochrane presented an amendment 

containing the same plan that she had presented and that had 

been defeated in the Senate Committee. (See entry above 

under March 19, 1997). The amendment was defeated on the 

floor by a vote of 27 to 18. No other amendments were offered 

to House Bill 586. The bill passed by a vote of 32 to 14. All 

7 African-American Senators voted for the bill. A transcript of 

the Senate floor debate is attached as Attachment 97C-28F-4F. 

The relevant portions of the Senate Journal are included as 

Attachment 97C-28F-4G(2). The record of the vote is attached 

as Attachment 97C-28F-4H. 

March 31, 1997: House Bill 586 was ratified as Chapter 11 of 

the 1997 Session Laws. 

April 1, 1997: The Attorney General filed the redistricting 

plan with the three-judge panel. The Attorney General also 

filed a motion requesting that the court delay ruling on the plan 

until the State had received a response from the United States 

Department of Justice under Section 5 of the Voting Rights 

Act. The Court was informed in this motion that the State 

would seek expedited consideration of this preclearance 

request. 
®t ok 

 



  

12a 

97C-27M. Reason for Change 

North Carolina’s twelve congressional districts were 

redrawn to remedy a redistricting plan containing a district 

(District 12) that was declared unconstitutional by the United 

States Supreme Court in Shaw v. Hunt. 

€97C-27N. Effect of Change on Minority Voters 

The General Assembly’s primary goal in redrawing the 

plan was to remedy the constitutional defects in the former 

plan. Those defects were the predominance of race in the 

location and shape of District 12, and perhaps in the location 

and shape of District 1, and a failure of narrow tailoring. This 

goal was accomplished by emphasizing the following factors 

in locating and shaping the new districts: (1) avoidance of the 

division of counties and precincts; (2) avoidance of long 

narrow corridors connecting concentrations of minority 

citizens; (3) geographic compactness; (4) functional 

compactness (grouping together citizens of like interests and 

needs); and (5) ease of communication among voters and their 

representatives. Emphasis on these factors accomplished this 

goal. For example: (1) the unconstitutional plan divided 44 

counties while the new plan divides only 22 counties; (2) the 

unconstitutional plan divided 6 counties among 3 districts 

while the new plan does not divide any county among 3 

districts; (3) the unconstitutional plan divided 80 precincts 

while the new plan only divides 2 precincts; (4) the 

unconstitutional plan used “cross-overs,” “double cross-overs” 

and “points of contiguity” to create contiguous districts while 

 



  

13a 

the new plan uses none of these devices; (5) District 12 in the 

unconstitutional plan was 191 miles long (in “traveling 

distance”) while District 12 in the new plan is only 102 miles 

long; and (6) District 1 in the unconstitutional plan was 225 

miles long while District 1 in the new plan is only 171 miles 

long. In addition, the new plan makes new District 12 a highly 

urban district by joining together citizens in the City of 

Charlotte and the cities of the Piedmont Triad (Greensboro, 

Winston-Salem and High Point). Conversely, new District 1 is 

a distinctively rural district formed from the largely agrarian 

and economically depressed northeastern counties. 

The General Assembly’s other primary goal was to 

preserve the 6-6 partisan balance in the State’s current 

congressional delegation. This balance reflects the existing 

balance between Democrats and Republicans in the State. The 

State House of Representatives is presently controlled by 

Republicans; the State Senate is presently controlled by 

Democrats; and most statewide elections are decided by narrow 

margins. It was clear from the beginning that the only plan the 

Senate and House would be able to agree on was one that 

preserved the existing 6-6 balance in the congressional 

delegation. At the same time, the chairmen of the Senate and 

House redistricting committees felt strongly that the legislature 

had a constitutional duty to draw a plan for the three-judge 

panel to review, rather than leave that task to the court. For 

these reasons, preservation of the existing partisan balance 

became a driving force in locating and shaping the districts. 

 



  

14a 

These primary goals were accomplished while still 

providing minority voters a fair opportunity to elect 

representatives of their choice in at least two districts (Districts 

1 and 12). Data and expert studies before the General 

Assembly provided a strong basis in evidence for the 

conclusion that the Gingles factors are present in the area 

generally encompassed by new District 1. See Attachment 

97C-28F-3B and 97C-28F-3B Ex. Based on this evidence, 

legislative leaders concluded that avoidance of potential 

liability under Section 2 of the Voting Rights Act probably 

required the creation of a majority-minority district in that area. 

Accordingly, 50.27% of the total population within the District 

is African-American and 46.54% of the voting age population 

is African-American, based on 1990 census data. In addition, 

1997 population projections indicate that the percentage of 

African-Americans and the percentage of African-American 

registered to vote are slightly higher in District 1 today than in 

1990. See Attachment97C-28A-2. These percentages plus the 

“cross-over” voters within the District (20 to 25%) provide 

African-American citizens in District 1 a reasonable 

opportunity to elect a candidate of their choice. This 

opportunity is almost certainly enhanced for the life of this plan 

(the 1998 and 2000 elections ) by the incumbency of Eva 

Clayton. Congresswoman Clayton was elected from old 

District 1 in 1992, 1994 and 1996 with percentages of 67.0%, 

61.0% and 65.9%, respectively, even though African- 

Americans constituted only 53% of the District’s voting age 

population and 50.5% of the District’s registered voters. 

 



15a 

The General Assembly did not have sufficient evidence 

to conclude, and believes that sufficient evidence does not exist 

to conclude, that Gingles factors exist in any other area of the 

State so as likely to require the creation of a second majority- 

minority district. In Shaw the Supreme Court specifically 

rejected the State’s argument that it had a compelling interest 

in creating a majority-minoritydistrict in the area encompassed 

by old District 12. Likewise, the General Assembly 

specifically rejected the creation of a second majority-minority 

district in the area eastward of Charlotte to Cumberland and 

Robeson Counties, as proposed for example by Senator 

Cochrane. Creation of any district in that area would 

artificially group together citizens with disparate and diverging 

economic, social and cultural interests and needs. It would 

sandwich rural voters between urban voters in the State’s 

banking and commercial center at one end of the district and 

voters residing on and around Fort Bragg and Pope Air Force 

Base at the other end of the district. Such a district would also 

rely on uncertain coalitions between African-American and 

Native-American voters for its “majority-minority” status. 

Significantly, it would have thwarted the goal of maintaining 

partisan balance. Under these circumstances, voters could not 

obtain effective representation, or be effectively represented. 

Moreover, under these circumstances, race would have become 

the predominate factor, to the exclusion of the State’s 

redistricting criteria, in the creation of a district which would 

bear an uncomfortable resemblance to Georgia’s District 11 

declared unconstitutional in Miller v. Johnson.  



  

16a 

Nevertheless, District 12 in the State’s plan also 

provides the candidate of choice of African-American citizens 

a fair opportunity to win election. Though not a majority- 

minority district, the candidate of choice of the minority 

community within the District will have a fair and reasonable 

opportunity to win election based on a combination of minority 

and non-minority votes. Congressman Mel Watt was elected 

from old District 12 in 1992, 1994 and 1996 with percentages 

of 70.4%, 65.8% and 71.5%, respectively. (African-American 

citizens constituted 53% of the voting age population and 

53.5% of the registered voters of old District 12) Consistent 

with the General Assembly’s primary goal to preserve the 

existing partisan balance in Congress, new District 12 contains 

a substantial portion of the core of the urban population of old 

District 12 and a substantial percentage of voters with an 

affinity for Democrat candidates, regardless of their race. 

Those factors, together with the significant African-American 

population in the District (46.67% total populationand 43.36% 

voting age population) provide a fair opportunity for incumbent 

Congressman Watt to win election. 

97C-27R. Other Material Concerning the Purpose of 

the Plan 

ok 

6. Plans Discussed in Negotiations 

 



  

17a 

Senator Cooper and Representative McMahan were 

involved in negotiations with each other for nearly three weeks 

in an effort to develop a plan that both the House and the 

Senate could agree to. These negotiations centered primarily 

on the division of Wake County between the 2nd and 4th 

districts. 

Several proposed plans were exchanged during this 

time. The plans constituted a series of offers and counteroffers 

that gradually moved the Senate and House closer together. 

This series of changes can best be understood in light of the 

original plans released by both sides (1997 Congressional Plan 

A in the Senate and 1997 House Congressional Plan A.1 in the 

House) and how those plans came about. 

In developing the Senate’s initial plan as well as 

subsequent plans, Senator Cooper consulted with members of 

the congressional delegation and members of the Senate, 

particularly Senator Frank Ballance, Senator Leslie Winner, 

Senator Bill Martin, and Senator Marc Basnight. Senator 

Ballance, an African-American and the Deputy President Pro 

Tempore of the Senate, was consulted about the placement of 

counties in the northeastern part of the state -- the area in which 

he resides (Warren County) -- including the location of the 

boundaries of the new 1st district. Senator Winner, counsel for 

the plaintiffs in the Gingles litigation in the early 1980s and a 

resident of Charlotte, was consulted about the composition of 

the 12th district, which includes much of Charlotte. Senator 

Martin, an African-Americanrepresenting much of Greensboro 

and Guilford County, was consulted both as to statewide plan 

 



  

18a 

issues and the placement of parts of High Point and Greensboro 

in the 12th district. Senator Basnight, President Pro Tempore 

of the Senate, was consulted on the plan generally and on the 

placement of counties in the northeast. Senator Basnight also 

resides in the northeast (Dare County). Senators Basnight and 

Ballance together represent most of northeastern North 

Carolina. 

The initial Senate plan was perceived by many 

Republicans as treating incumbent Republican congressman 

Walter Jones (3rd District) unfairly (see, for example, the 

comments of Representative McMahan to the House 

Redistricting Committee on February 25, 1997 at Attachment 

97C-28F-4E(2)). The House Republicans felt that the 3rd 

district was perhaps their most critical district and that the 

Senate’s proposal, especially in the 3rd district, threatened the 

6-6 partisan balance. Rep. McMahan responded by releasing 

a plan (1997 House Congressional Plan A.1) that in many 

respects resembled the Senate plan. However, Rep. 

McMahan’s plan also addressed the concerns about the 3rd 

district and created other intentional differences between the 

two plans to use as “bargaining chips” in negotiating primarily 

on three districts -- the 2nd, the 3rd, and the 4th. 

Representative McMahan also consulted with numerous 

individuals, including African-Americanand other members of 

the House and Democratic and Republican members of the 

North Carolina congressional delegation. 

Although the boundaries of the 1st District were 

affected by changes in the 2nd, 3rd, and 4th districts, these 

 



  

19a 

changes did not significantly affect the percentage of African- 

Americans in the 1st District. This percentage fluctuated about 

two-tenths of one percent as a result of this series of changes. 

The enacted 1st district is similar to the 1st district that was 

originally proposed by Senator Cooper after consultation with 

Senators Ballance and Basnight. As enacted, it includes more 

of the territory of the existing 1st district than the original 

House plan, thus keeping more of Congresswoman Clayton’s 

current constituency intact in the district. At the same time, 

the counties in the coastal/Tidewater region (Chowan, 

Pasquotank, Perquimans, Currituck, and Tyrrell) are able to 

remain together with the coastal counties with whom they share 

economic and other interests. 

Differences between the House and Senate plans in the 

12th district were resolved quickly. The House agreed to 

include Winston-Salem in the 12th district in one of its first 

counter-offers to the Senate, recognizing that it was the only 

major city in the Triad area not included in the urban-based 

12th district. 

After the 3rd district and 12th district were resolved, the 

negotiations focused on the dividing line in Wake County 

between the 2nd and 4th districts. The Senate considered that 

many of the House plans for the 2nd district were not consistent 

with the goal of keeping a partisan balance and the House felt 

that the 2nd district in the Senate plans did not reflect the 

partisan makeup of the prior 2nd district. This issue was the 

last to be resolved. 

 



  

20a 

x Rx 

 



. lja 

COMPLETE TEXT OF SENATE FLOOR SPEECH BY 

SENATOR ROY COOPER: MARCH 27, 1997, FLOOR 

DEBATE OF HB 586, 97C-28F-4F(2) (EXHIBIT 100 

EXCERPT) 

[#3] Reading Clerk: H.B. 586, A BILL TO BE ENTITLED 

AN ACT TO DIVIDE NORTH CAROLINA INTO TWELVE 

CONGRESSIONAL DISTRICTS, reported favorably. 

  

President: Senator Cooper is recognized to explain the bill. 

Senator Cooper: Thank you, Mr. President, members of the 

Senate. Today we have a congressional redistricting plan that 

splits forty-six (46) counties, that has six (6) counties which 

have three members of Congress, and which splits over 

eight [sic] (80) precincts. The plan we have today has some 

social merit. As a result of this plan, for the first time in many, 

  

many years, we have two minority members of Congress as a 

result of the current plan. However, we have a plan that is a 

geographic mess. I have, for your viewing pleasure if you want 

to call it that, had placed on your desks a copy of the current 

map so that you can see how difficult it is for people to know 

in which Congressional district they reside. Last year, the 

United States Supreme Court ordered the Legislature to redraw 

the map as a result of the 12" Congressional District being 

declared unconstitutional. Now there are arguments for and 

against this decision. In fact, the Court found it close. It was 

a 5-4 decision and one of those Justices sort of wavered back 

and forth - Justice O’Connor. But the result was that the 

12% District was held unconstitutional by a 5-4 decision and we 

were ordered by April 1 to come up with a new map. When  



  

2ja 

this process began, we had a House controlled by the 

Republican Party and a Senate controlled by the 

[#4] Democratic Party and people were saying that it couldn’t 

be done, that we could not reach an agreement. In fact, other 

states which had been ordered by the Court to redraw their 

plans under similar circumstances, other states have been 

unable to agree on a plan. I want to commend all of those who 

have been involved in this process because we have agreed on 

a plan - a plan that is fair and workable. You have the plan on 

your desk, it is entitled “97 House/Senate Plan A.” This plan 

reduces the number of counties that are split from forty-five 

(45) [sic] to twenty-two (22). There are now only 22 counties 

split under this plan. It reduces the number of precincts split 

from over eighty (80) to two (2) and those two precincts have 

special circumstances with satellite annexations, etc. and are 

split under most other plans as well. You have a plan which 

provides for geographic compactness, provides for 

consideration of community of interest, and provides for fair 

partisan balance. I think that all of the congressional districts 

would be competitive. However, it is likely that, if political 

fortunes remain the same, that we would end up with a plan 

that would elect six Democrats and six Republicans. We said 

from the beginning in the Senate that in 1996 the people made 

a decision to elect six members of Congress from the 

Democratic Party and six members of Congress from the 

Republican Party and we should not use court-ordered 

redistricting to alter that result. Therefore, we’ve come up with 

the plan that you see before you. In considering the plan, we 

looked at community of interest, looking at keeping precincts 

whole, at keeping counties whole as much as possible. We 

 



  

3ja 

looked at making sure that no counties had more than two 

members of Congress representing the county. We looked at 

racial fairness. Let me tell you a little bit about the 1* and the 

12% Districts because the unconstitutionality of the 12 District 

is the reason why we are here. You have the statistics on your 

desk, but the 1% District is majority minority, total population 

50.27%. [*5] However, let me emphasize that race was not the 

predominate factor in drawing the 1* Congressional District. 

We have a district that has ten whole counties and ten split 

counties. It's a district which respects the rural agrarian nature 

of the northeast. It is a district which, I believe, that a minority 

member of Congress or even a minority challenger would have 

an excellent chance to be re-elected, but I believe the 1% District 

not only is constitutional, but also complies with the Voting 

Rights Act which is also a responsibility we have with this plan 

to have it pre-cleared by the Justice Department and held 

constitutional by the Courts. The 12" District is almost 47% 

majority minority. Currently, the 12" Districtunder our current 

plan is majority minority. I believe that this new 12" District 

is constitutional for several reasons. First, and maybe most 

importantly, when the Court struck down the 12 District it was 

because the 12" District was majority minority and it said that 

you cannot use race as the predominate factor in drawing the 

districts. Well guess what! The 12" District, under this plan, 

is not majority minority. Therefore, it is my opinion and the 

opinion of many lawyers that the test outlined in Shaw vs. Hunt 

will not even be triggered because it is not a majority minority 

district and you won't even look at the shape of the district in 

considering whether it is constitutional. That makes an 

eminent amount of sense because what is the cut-off point for 

 



  

4ja 

when you have the trigger of when a district looks ugly. I think 

that the court will not even use the shape test, if you will, on 

the 12% District because it is not majority minority. It is strong 

minority influence, and I believe that a minority would have an 

excellent chance of being elected under the 12" District. If, 

however, the court decides that the test is triggered for some 

reason and that we should look at the criteria outlined in Shaw 

vs. Hunt, you need to look at what the, how we have improved 

the shape of the 12™ District. First, it is much more compact. 

It is 67% shorter in length [*6] than under the old plan and you 

see how the old plan stretches from Gastonia to Durham. You 

can drive the length of this district in two hours. It is the third 

shortest district in the entire State. It covers six (6) counties 

instead of ten (10), it connects the metropolitan area of 

Charlotte and the metropolitan area of the Triad. There is 

certainly a community of interest along that corridor, 

economic, social, and otherwise. It is much wider and it takes 

into consideration the incumbent and political balance. For all 

of those reasons, I believe that the 12% District will be held 

constitutional. Members of the Senate, redistricting is a 

difficult process - I don't want this job again, but I believe that 

we have been able to overcome partisan politics and we have 

been able to reach a plan that is fair to the people of North 

Carolina, and fair to all involved. The House agrees. 

Yesterday, the House voted unanimously in favor of this plan - 

87-30. Of those 87 members who voted “yes”, 52 were 

Republicans and 35 were Democrats. That is a good strong 

bipartisan show of support for this plan. I believe that this plan 

is acceptable to all of the members of Congress. There are a 

couple who have stated objections about the way that some area 

 



  

5ja 

had been moved around, but as far as the partisan nature of the 

districts is concerned, we have preserved the current partisan 

nature of each of the districts and for that reason, I think that all 

of the incumbents are satisfied. And let me emphasize to you 

that this is not an incumbent protection plan. This is a plan that 

attempts to preserve the partisan nature of each of the twelve 

districts as they now exist. I believe that we’ve done that with 

this plan. Members of the Senate, I encourage you to vote for 

this plan. We have a responsibility as a legislature to draw a 

plan. It’s easier politically to say “let the courts do it”, but 

that's rolling the dice. Number one, you don't know what you 

are going to get and, number two, it is shirking our 

responsibility as representatives of the people to do what the 

Court has [*7] ordered us to do. We may not like everything 

about the plan, there are some parts of the plan that I wish I 

could change, but the process of negotiations require give and 

take. That’s what has happened here. I think we have a result 

that is fair and equitable for all of the people of North Carolina 

and I encourage your “yes” vote. Thank you. 

* % * 

[¥21] Senator Blust: Let me first start out by saying that this 
  

is, this plan is and improvement over what we have now, no 

doubt about it. Senator Cooper has put in a lot of work on this. 

I admire his stamina sometimes, all the tasks he’s been given, 

he seems to perform very well in meeting with . . . . of them, 

but I think I am falling into a familiar role here, I guess I am 

starting to find any role on the team. I think more and more I 

am becoming the little boy who in the story, “The Emperor’s 

 



6ja 

New Clothes”, had to get up and say when no else dared to tell 

the Emperor that he was not wearing anything because he had 

been snuckered(?) by some con men tailors, a little kid not 

knowing what he was doing said in public one day that the 

Emperor didn’t have any clothes. At that point, once it was 

said everybody was free to realize that, but my problem with 

this plan is [*22] fundamental and I just don’t think - in 

anything you come out with a good result unless you have good 

fundamentals. Everybody now is excited about the Final Four 

and the Tarheels have been practicing all week, but most of 

their practice time, even at this level of competition, is drilling 

the fundamentals and drilling the fundamentals, because if you 

forget them everything else crashes down and the major 

weakness with this plan, quite frankly, and I think everybody 

here knows this is the truth whether they will get up and admit 

it or not it’s not going to make a difference, is the fundamental 

predicate was on protecting the current twelve. And that was 

the only way to really get a deal between the parties on this and 

get support for it and there were just two factors that went into 

developing this plan - one was protecting incumbents, the other 

was race. We might as well face that. Part of the problem is 

that the Courts have put, I think, ridiculous constraints on this 

process. Some of the problem lies in the fellows in the black 

robes, but we come to this Body and I think we sometimes lose 

our way, we forget the big picture, forget what it’s all about and 

I just want to quote from the Constitution of this State that sets 

up this Body and sets up our government and its says this in 

Article 1, Section 2 called “Sovereignty of the People - All 

political power is vested in and derived from the people; all 

government of right originates from the people, is founded  



  

Tia 

upon their will only, and is instituted solely for the good of the 

whole” and 1 think concocting a plan based mainly on 

protecting twelve out of seven million (7,000,000) citizens 

means that the plan can’t be a good one. Logic teaches that if 

the premise of something is wrong, all the predicates that 

follow from that flawed premise aren’t really logical and here 

we have a premise that’s wrong and I think we forget this 

fundamental point about our government being for the people 

and the people having power, because what happens is 

politicians win an election [*23] and suddenly they seem to 

think they become entitled to their seats for as long as they 

want to have them. That’s what we have, we have it at every 

level, we have it here in our district system, we have it in 

Congress, if once you are elected you search, there’s a science 

behind this, I hear people arguing over I want this precinct, I 

want that precinct, solely designed to make it easier for them to 

retain their seat and we argued in here the other day on a bill 

about tenure. I think what we have in our redistricting is a 

form of political tenure and two of these seats, in 1994 the 

public voted one way and in 1996 another. So now in 1997 

that we’ve got an opportunity because of a court decision to 

redo the districts, we are gonna do it to solidify what happened 

in “[sic] 96 so that in ‘98 maybe a difference public can’t see 

it differently. You know, sometimes I talk to people and talk 

about government and try to keep it on the basics and I have 

found that you can hold up a map of our districts and you don’t 

even have to say any more when you are trying to make the 

point that government has gone astray somewhat, people look 

at these things and they can see it without any need for 

anything more and we have been talking about districts here. 

 



  

8ja 

Someone said that one of the districts is too long, look at 

District 5, here. It goes along the Virginia border forever. No 

one tried to correct that and I just don’t see any rational plan to 

make districts concise to where they serve the people in the 

community and I'll just give one example. There’s actually a 

precinct in Mecklenburg that is split between everybody else in 

the precinct and one person, one house, and I’m told, wait a 

second, it’s not one house, there is some industrial area around 

it and that had to be split in order to keep one of these districts 

contiguous. That is the kind of . . . . we go through here and 

someone, Senator Hoyle, mentioned that 51 House Republicans 

voted for this as if that is some kind of . . . . between House 

Republicans and Senate Republicans. Well, I don’t know how 

to explain that, I don’t think when [*24] we are pointing the 

fingers over district there’s a, any party can say anything about 

the other and have totally clean hands, but I do fear that some 

of my brethren in the House may have lost their way and 

bought into this, bought into this idea that weve got to protect 

the current twelve and I just think that’s a fundamental flaw 

and I hear some chuckling and maybe I am too naive for this 

job, I decided to become a Republican because I thought we, as 

Republicans, believed in a certain set of principles and ideals 

and when I see one of the fundamental ideals behind 

government being violated, I just can’t bring myself to support 

it. Thank you. 

 



  

9ja 

[¥24] Senator Lucas: Senator Cooper, many of my 

constituents were concerned about their not being placed with 
  

District 1. Can you explain to me why that was not possible? 

Senator Cooper: Thank you, Senator Lucas, I know that there 

are numerous members of the community of Durham, 
  

particularly in a minority community of Durham, who are 

concerned about this plan. [#25] Currently in the 12" District 

is where the minority community of Durham resides. 

Unfortunately, that is the very tale end of the 12* District and 

I think everyone understands that in order to draw a map that 

is constitutional, you cannot include Durham in the 12* District 

and I think that, although the wishes and the desires may be 

there, it’s not possible. The reason that, really twofold, as to 

why we did not go with the Durham County and pick up the 

minority portion of Durham County and put it in the 1%, the 

first reason is that we very much wanted to retain the rural 

agrarian nature of the northeastern North Carolina 1* District. 

That was very important. The court talks a lot about 

communities of interest and when you put urban Durham in 

with the rest of rural northeastern North Carolina, you run into 

the same problems that you run into with Senator Cochrane’s 

amendment and you can . . . . of the courts, and secondly, I do 

think if you did that then it would be clear that race would have 

been the predominate factor in drawing the 1* District. For 

those two reasons, it was not done. 

 



1ja 

EXHIBIT 306 - A CHRONOLOGY OF NORTH CAROLINA 

REDISTRICTING IN THE 1990S. AUGUST 1999 (EXCERPTS). 

THIS EXHIBIT WAS ADMITTED FOR TIMES AND 

DATES ONLY 

  

{Congressional 
  

June 14, 1996 House Speaker Harold ioe? TOWR) 3 ari os Youse 

Select Committee on Congressional Redistricting, headed 

by Robert A a 
  

  

July 3, 1996 Retin 0. Everett files Cramartic v. Hunt in nu S- 

Eastern District of N.C., using a Shaw theory to challenge 

the 1% congressional district. Action in the case is later 

stayed de outcome of §hau. 

  

  

  

July 8, 1996 ein e Preniient Pro Tem Marc Basnight WD) a reer mo 

Senate Select Committee on Redistricting, headed by Sen. 

Roy Cooper (WD). 

Sen. Cooper writes letter to N.C. Attorney General Michael 

Easley saying that it is not feasible to redraw 

congressional districts in time for new districts to be used 

in 1996 congressional elections. 
  

  

July 10, 1996 Senate Select Committee meets to discuss Shaw decision 

and the feasibility of enacting a remedial plan before the 

  

1996 GN Slactions. 

  

July 12, 1996 die panel Blo VT  plaintifTs and mii 

intervenors amend complaint to add new parties and 

CLL District I 
  

  July 17, 1996 Fens Rules Lin Chair tard Li WE) 

releases a congressional redistricting plan, "Congress-96- 
001", containing one majority black district in northeast 

  

and one majority black+Indian district in south. 

    Tuly 19, 1996 3-judge panel issues order asking for opinions of Speaker, 
President Pro Tem, and committee leaders on whether it is 

feasible to adopt a remedial congressional plan for the 

1996 elections. 
Senate says no.     House says yes. 
   



  

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THIS EXHIBIT WAS ADMITTED FOR TIMES AND 
DATES ONLY 

        
    July 24, 1996 House Rules Committee conducts a public hearing at which 

Rep. Morgan presents and explains "Congress-96-001". 
  

     
     

. Congressional ~~ 

July 30, 1996 |3-judge panel issues order : 

e Prohibiting State from conducting any 

congressional elections after 1996 under existing 

plan. 

e Allowing State to conduct 1996 elections under 

existing plan. 

e Giving the General Assembly until April 1, 1997 

to propose remedial plan. 

  

    

  

  September 29, [Americans for Defense of Constitutional Rights, a group 

1996 connected with the Shaw plaintiffs, announces it will 

award $1,000 to anyone who can draw a majority black 

congressional district that is ruled to be compact by expert 

judges. (It is later announced that $2,000 will be awarded 

to anyone who can draw two majority-black districts that 

pass the compactness test.) 
  

  November 3, Second general election held under 1990s redistricting 

1996 plans. Following results occur in minority districts: 

CD1 -- Eva Clayton (BD) 

CD12 — Melvin Watt (BD) 

In addition, these black legislators are elected in multi- 

member, majority-white districts: Mickey Michaux (BD) 

in HD23, Jeanne Lucas (BD) in SD13, and Howard Lee 

(BD) in SD16. 

Total of 25 minority legislators is same as the 25 elected in 

1994. 

Total of 2 minority Congress members is the same as 1994. 

Republicans and Democrats divide the U.S. House 

delegation evenly, 6 and 6. Shift of 2 seats from 

Republican to Democratic. 
          

  

  
  

 



  

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THIS EXHIBIT WAS ADMITTED FOR TIMES AND 
DATES ONLY 

  

    "Congressional 

Decent 17, Study Committee on gm pin ym recommends 

1996 that 1997 General Assembly propose a constitutional 

amendment to give redistricting decisions to an 
Independent Redistricting Commission. This would apply 

to congressional and legislative redistricting beginning in 

2001. The Study Committee will report January 3, 1997, 

to the Legislative Research Commission. The LRC will 

vote to transmit the request to the 1997 General 

Assembly. The proponent of the Independent 

Redistricting Commission, Rep. John Weatherly (WR), 

will introduce the Study Committee's recommendation 

a 5as House Bill 52. 

  

  

  

  
January 23, Mag iroie fi gives pom in on v. High until 

1997 February 14 to report why the suit has not been served on 

the defendant. 
  

January 29, 1997 General Assembly convenes. With House Republican 

1997 majority of 61-59, Speaker Harold Brubaker re-elected. 

With Senate Democratic majority of 30-20, President Pro 

Tem Marc Basnight re-elected. 

    
Speaker Brubaker appoints new House Committee on 

Congressional Redistricting, chaired by Rep. Ed 

McMahan (WR). 

President Pro Tem Basnight reauthorizes the Senate Select 

Commitise 4 on Sd rig ng still chaired bY Sen. Cooper. 
  

  February 5, Se Weatherly rote HB 52 calling we a 

1997 constitutional amendment to give an Independent 
Redistricting Commission, rather than the General 

Assembly, the authority to redistrict State House, State 

Senate, and Congress. The amendment would go into 

effect for the 2001 redistricting. The bill, similar to one 

Rep. Weatherly had introduced in 1995, was 

recommended by the Legislative Research Commission's 

Study Committee on Election Law Reform. 
  

  February 10, Deadline for submission of plans in the contest for compact 

1997 minority districts conducted by Americans for Defense of 

Constitutional Rights. 
        
  

 



  

4 ja 

THIS EXHIBIT WAS ADMITTED FOR TIMES AND 
DATES ONLY 

  

  

2 2. Congressiomal =... 

February 12, House CR Committee holds first meeting, hears from 

1997 Edwin Speas, Senior Deputy State AG, on the Shaw 

litigation. 
       

  

  

Rep. Mickey Michaux (BD) removed from House 

1997 Redistricting Committee by Speaker. Replaced by Rep. 

Toby Fitch (BD). Speaker Brubaker says change was 

made to correct an oversight: He had originally intended 

to appoint Rep. Fitch. 

  

  February 20, Senate Select Committee meets. Sen Cooper presents "1997 

1997 Congressional Plan A," containing 2 minority districts. He 

says no vote will be taken on the plan, but that a public 

hearing will be held the next week. 
  

  February 24, Six N.C. Democratic Congress Members meet in 

1997 Legislative Building with Sen. Cooper. They express 

mixed feelings about the Senate proposal. 

Robinson Everett announces there are no winners for the 

prize of $2,000 for drawing two compact majority-black 

congressional districts. But he awards $1,000 to Jack W. 

Daly for drawing the most compact majority-black single 

congressional district. Daly's plan, "Everett's Bane 3", split 

three counties and stretched from Durham to Pasquotank 

counties. Daly says he will use the money to further his 

lawsuit. John Sanders, retired director of the Institute of 

Government, is judge of the contest. 
  

  February 25, Rep. Weatherly introduces House Joint Resolution 322, 

1997 providing for an independent commission to draw a 

congressional redistricting plan to satisfy the court order 

in Shaw. 

House CR Committee meets. Rep. McMahan presents 

"1997 House Congressional Plan A.1", similar in many 

ways to the Senate proposal. Rep. McMahan says no vote 

will be taken, but the plan will receive input at a public 

hearing. 
        
  

 



  

  

  

  

     
  

  

  

  

  

5ja 

THIS EXHIBIT WAS ADMITTED FOR TIMES AND 
DATES ONLY 

February 26, Joint House-Senate public hearing held in Legislative 

1997 Building. Everett calls House and Senate proposals "fruit 

of the poisonous tree." Sen. Betsy Cochrane says Senate 

Republicans will present a plan that will have a minority 

district from Charlotte to the Sandhills. Rep. Weatherly 

promotes his idea of an independent commission. Several 

speakers address local matters. 

February 27- Sen. Cooper and Rep. McMahan negotiate over differences 

March 18, between their two plans. Chief issue is how Wake County 

1997 would be divided between Districts 2 and 4. 

March 17, Irving Joyner, representing N.C. Association of Black 

1997 Lawyers, sends letter to Sen. Cooper criticizing both 

House and Senate proposals. 

March 19, Sen. Cooper introduces SB 433, embodying "1997 

1997 Congressional Plan A". 

Senate Select Committee meets, and Sen. Cooper presents 

SB 433 for a vote. Sen. Cochrane presents "Congress 

Cochrane” as an amendment; that amendment is defeated. 

Committee gives a favorable report to SB 433 as 

introduced. 

House CR Committee meets. Rep. McMahan presents "97 

House Congress Plan G" for a vote. Under House rules, a 

favorable vote by a committee constitutes authorization 

for the committee to introduce the bill. 

    

March 24, 

  

  

1997 

Rep. Grady introduces HB 585. jo. 

Rep. McMahan introduces HB 586, embodying "97 House 

Congress Plan G", on behalf of his committee. The 

Speaker refers that bill back to the House CR Committee. 

Rep. McMahan and Sen. Cooper negotiate the differences 

between their committees’ two plans and agree to "97 

      HOUSE/SENATE PLAN".   
  

 



  

6 ja 

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     | {Congressional = 

March 25, House CR Committee meets. Rep. McMahan presents the 

1997 compromise, "97 HOUSE/SENATE PLAN", as a 
committee substitute for HB 586. 

Two amendments are defeated: 
e One from Rep. Dan Blue to change Dist. 4 so 

that Wake County would be predominately in 

Dist. 4. ("1997 CONGRESSIONAL PLAN 

D1") 
e One from Rep. Ronnie Sutton to a majority 

Native American precincts of Robeson County 

in Dist. 7. 

The Committee Substitute for HB 586 is given a favorable 

report without committee amendment. 

  

  

  

Rep. Steve Wood (WR) introduces HB 599, ("Shaw 

Compliance Plan C"). 
  

  
March 26, HB 586 goes to House floor. Rep. McMahan presents an 

1997 overview, saying that the plan is designed so that all 

incumbents, black and white, Democratic and Republican, 

have a fair chance at re-election. Four amendments are 

offered: 

e One from Rep. Sutton, similar to one he offered in 

committee. It passes. 

e Three amendments from Rep. Mickey Michaux, 

embodying "Fitch Michaux Plan A", 

"Fitch/Michaux Plan B", and "Fitch/Michaux Plan 

C". All have one majority-black district and three 

districts with minority populations between 30% 

and 40%. They are defeated. 

House passes the bill on second reading 87-30. Bill passes 

third reading and is sent to Senate. 
    

    

    
  

 



7])a 

THIS EXHIBIT WAS ADMITTED FOR TIMES AND 
DATES ONLY 
    

Congressional 
  

Senate Select Eo iTien o on Redivirieling sep up Yione 

passed HB 586. No amendments are offered. Committee 

gives bill a favorable report. 

HB 586 goes to Senate floor. Sen. Cooper gives an 

explanation, says that while the bill is not designed to 

protect incumbents that it gave all incumbents a fair 

chance at re-election. He said the authors took note of the 

6-6 partisan split in the congressional delegation and felt 

that they should not use court-ordered redistricting to 

overturn that decision of the people. 

One amendment is offered by Sen. Cochrane, embodying 

"Congress Cochrane”. It is defeated. 

Senne © passes» bill on a Sedond leading 32- W 
  

  

March 31, 

1007 

HB 536 gone as 1 of the 1997 Sorin Ps 

  

  
oil 1, 1997 AG Easley files the ratified plan with the 3judge panel. 

He also moves requesting that the court delay ruling on 

the plan until the U.S. Justice Department has precleared 

or denied preclearance pursuant to Section 5 of the Voting 

  

Rigs Act. 

  April 9, 1997 Li 1 1 of 1997 ome Laws to U. S. 

Justice Department under Section 5 of Voting Rights Act. 

Rep. Michaux introduces HB 901 (with Reps. Fitch and 

Adams). 
  

  April 23, 1997 House Congressional Redistricting Committee meets to 

consider HB 52 (Independent Redistricting Commission). 

After discussion, Committee votes to send bill to a 

subcommittee. 
  

  May 6, 1997 3-judge panel denies fees to Maupin, Taylor, Ellis, and 

  

Adams, attorneys for plaintiff intervenors in Shaw. 

  May 16, 1997 Reps. Michaux and Fitch meet with U.S. Justice officials 

in Washington to advocate for their congressional plan 

(embodied in March 26 House floor amendment) as 

alternative to enacted plan. (Date is 16" or earlier same 

week.) 
        
   



  

  

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DATES ONLY 
freee Se 

  

  

  

  

May 28, 1997 3-judge panel denies motion to intervene in Shaw suit by 

several black voters and associations. They sought to 

assert dilution claims and offer alternative plans. 
  

    
  
  

| June 9, 1997 U.S. Justice Department preclears Chapter IL 

3-judge panel directs Shaw plaintiffs and plaintiff- 

intervenors to tell court by July 19 whether they will 

object to dismissal of the suit and if so on what basis. 
  

  

June 19, 1997 [Shaw plaintiffs and plaintiff-intervenors respond that they 

wish the lawsuit to be dismissed without prejudice against 

the filing of a new one. Robinson Everett, plaintiffs’ 

attorney, urges the court to declare the new plan 

unconstitutional, but states that his plaintiffs no longer 

have standing to challenge the new 12% or 1% districts, 

because they do not live in them. 

U.S. Supreme Court upholds court-ordered districting plan 

in Georgia. 
  

  

July 3, 1997 State argues to court that plaintiffs and plaintiff-intervenors 

do live in the districts, do have standing to continue the 

lawsuit, and are seeking dismissal simply so they can file a 

new lawsuit and shop for a more favorable 3-judge panel. 
  

  

August 28, 1997 General Assembly adjourns until May 11, 1998. 

1997 
  

September 12, |3-judge panel dismisses the Shaw suit. In opinion 

1997 accompanying its order, the court says the dismissal is 

only on the issue of the remedial adequacy of the violation 

of Equal Protection that the plaintiffs succeeded in 

showing against the former Dist. 12. 

  

  

  

  

October 10, Robinson Everett, attorney for Shaw plaintiffs, lodges an 

1997 amended complaint in Cromartie v. Hunt. The complaint 

uses a Shaw theory to challenge the March 31 

congressional redistricting plan as "fruit of the poisonous 

tree” planted in 1992. Plaintiffs reside in the new 1% and 

12 districts. 

  

          
 



  

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Congressional =~... = 

January 15, Cromartie v. Hunt moved to jurisdiction of the same 3- 

1998 judge panel as Daly: Ervin, Voorhees, and Boyle. 

March 3 i. 3-judge panel holds hearing in Morganton on Cromartie 

1998 cross motions for summary judgment and plaintiffs’ 

motion for preliminary injunction. 
      
  

April 3, 1998 | 3 -judge panel grants summary judgment and preliminary 

injunction in Cromartie for 12 district only. Gives State 

until April 8 to report how long it will take to redraw the 

plan and to propose a special primary schedule that would 

allow the general election in the new congressional 

districts to occur on November 3. 
  

  
April 8, 1998 | State tells 3-judge panel in Cromartie it needs more time 

to answer its questions. 
  iy 

  
April 9, 1998 3-judge panel in Cromartie extends State's deadline for 

responding to order. 
  

  
April 13, 1998 [U.S. Supreme Court denies stay of 3-judge panel's order 

enjoining 1998 congressional elections and requiring 

redrawing of plan. Decision is 6-3, with Breyer, Ginsburg, 

and Stevens dissenting. 
  

  
April 14, 1998 [3-judge panel issues Memorandum Opinion in Cromartie. 

Says the new 12* district shows race as a predominant 

factor and is uncompact. Says those issues are clear 

enough to grant summary judgment for 12®, but not so 

clear in case of the new 1%. district. Judge Ervin dissents. 
  

  

  
April 17, State submits proposed schedule to 3-judge panel, 

1998 including May 29 deadline for General Assembly to enact 

corrective plan and September 15 special congressional 

primaries with no runoff. 

State also moves that court allow May 5 primaries to 

proceed in congressional districts unaffected by redrawing 

District 12. 
        
  

 



  

10 ja 

THIS EXHIBIT WAS ADMITTED FOR TIMES AND 
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yo | Congressional : . 

yee 20, 3-judge panel orders schedule for Ain wr or 

1998 special congressional primaries: 

e May 22 deadline for legislature to redraw. 
o June 24 for Voting Rights Act preclearance of redrawn 

plan. If no preclearance by then, Court will assume 

sole responsibility. 

e July 1 deadline for Court if Court must draw the plan. 

e July 6-20 special congressional candidate filing period. 

e September 15 special congressional primaries. 

  

  

  

  

April 21, 1998 |3-judge panel rejects State's motion to allow May 5 primary 

in ~unaffscted" £00 ges ations! districts. 
  

  

May 11, 1998 RT 1998 Short Session of 1997 me: pr 

convenes. 
  

  

May 13, 1998 [House and Senate Committees hold joint public hearing on 

congressional redistricting: 

e Robinson Everett urges legislators to redraw by creating 

a whole new plan, not simply by "tweaking" the 12% and 

leaving the 1¥ alone. He says Mecklenburg should not be 

split, and no district should run from Charlotte to Forsyth 

or Guilford. 

e Reps. Wayne Goodwin, Larry Womble, and Linwood 

Mercer and Sen. Betsy Cochrane present plans of their 

own. 
  

  

May 18, 1998 | House and Senate leaders agree upon "98 

CONGRESSIONAL PLAN A." It changes only Districts 

5,6,9, 10, and 12 from the 1997 plan. District 12 is 

removed from Guilford County and fills all of Rowan 

Coury. I goes from 46.67% black to 35.58% black. 
  

i ih 

  

May 19, 1998 no upon eT em by S ey Cr as SB 1185. 

Agreed-upon plan approved by House Congressional 

Redistricting Committee, which under House Rules can 

introduce it as a bill. 
        
  

 



  

11ja 

THIS EXHIBIT WAS ADMITTED FOR TIMES AND 
DATES ONLY 
  

oy ne Congressional . a Ma 

i 20, 1998 House RS Reding nie em so 

its approved plan as HB 1394. 

    
  

Full House takes up HB 1394. Adopts an amendment 

providing that plan will be effective for 1998 and 2000 

elections unless U.S. Supreme Court reverses the 

decision invalidating the prior plan. House then passes 

bill 90-27 on 2™ reading. House rejects effort by Rep. 

Linwood Mercer to delay final vote, saying he wanted 

time to prepare an amendment revising the 1% district. 

Bill passes 3™ reading. 

Senate Select Redistricting Committee approves SB 1185, 

after adopting the same amendment adopted on House 

floor. 
  

  

  May 21, 1998 | Full Senate takes up HB 1394 instead of its own identical 
SB 1185, passes it on 2™ and 3™ readings 30-17. 

HB 1394 ratified as Session Law 1998-2. 
  

  

May 22, 1998 Beaton Law 1998- 2 orm to both 3-judge panel and 

to U.S. Department of Justice under the Voting Rights 

Act. 
  

  
May 27, 1998 Evert files Shjscpon to Session Law 1998-2 
  

  

  

June J 1558 U. 3. Deparment of Justice ©: preclars Session Law 1998-2. 

  

Tone 22, 1998 is Fras gives its rT to Session Law 1998-2 

for 1998 election. 
  

  

  
July 20, 1998 | Special congressional candidate-filing period ends. Six 

candidates file for Republican nomination for 12® 

District. 
  

  

  
J uly 22, 1998 State moves to consolidate Cromartie and Daly cases. 
        
  

 



  

12 ja 
THIS EXHIBIT WAS ADMITTED FOR TIMES AND 
DATES ONLY 

=I Congresonale     

  

September Special Congressional Primaries held, using 1998 

Congressional Plan. 

Rep. Eva Clayton (B) wins Democratic nomination by 

63.9% in District 1 over well-known white opponent, 

Linwood Mercer. 

Rep. Mel Watt (B) wins Democratic nomination in 

District 12 by 84.3% over less-well-known opponent. 

Republicans in 12® nominate Scott Keadle with 28% of 

the vote. Second primary was eliminated in special 

election schedule. 

  

  

  
November 3, | Incumbent black Democrats easily defeat Republican 

1998 opponents in Districts 1 and 12, even though majority 

percentage significantly reduced. 

Eva Clayton (1%) — 62.2%. 
Mel Watt (12%) -- 55.9%. 
  gh am 

  
January 20, U.S. Supreme Court hears oral arguments in Hunt v. 

1999 Cromartie. 
  

  
May 17, 1999 | U.S. Supreme Court reverses 3-judge panel in Cromartie. 

Vote is 9-0. Justice Clarence Thomas writes for majority 

that summary judgment is inappropriate in a redistricting 

case where circumstantial evidence could give rise to 

conclusion that predominate reason for drawing district 

was political gerrymandering rather than racial 

gerrymandering. 

Because of language in the bill that enacted the 1998 plan, 

the Supreme Court’s reversal reinstates the 1997 plan for 

the 2000 elections. 
        
  

 



Exhibit 23 Type P Divergent Segments Using Democratic and Black Registration 

Obs Segm. 

Internal 

County Precinct 

External 

County Precinct 

Inside 12 

% Black % Dem 

Outside CD 12 

% Black % Dem 
  

6 6 

37:37 

40 40 

41.2 41 

53 54 

54+ 55 

207 

219 

81 

82 

83 

85 

Mecklen. 

do. 

do. 

do. 

Iredell 

do. 

do. 

do. 

Rowan 

Davidson 

do. 

do. 

do. 

Guilford 

do. 

Charlotte 81 

Charlotte 29 

Charlotte 61 

do. 

Coddle Creek 3 

Coddle Creek 4 

Cool Springs 

Barrington 

Spencer 

Boone 

do. 

do. 

Ward 2 

GB 15 

GB 24 

Mecklen. 

do. 

do. 

do. 

Cabarrus 

do. 

Iredell 

do. 

Rowan 

do. 

Davidson 

Davie 

Davidson 

Guilford 

do. : 

Charlotte 80 

Charlotte 5 

Charlotte 84 

Charlotte 95 

0.0301 

do. 

Turnersburg 

Fallstown 

Trading Ford 

do. 

Cotton 

0.025 

Cotton 

GB 14 

GB 23 

0.1484 

0.16 

0.13 

do. 

0.03 

0.05 

0.17 

0.010496 

0.09 

0.04 

do. 

do. 

0.08 

0.16 

0.201 

0.61 

0.6382 

062 

do. 

0.56 

0.61 

0.68 

0.6232 

0.75 

0.66 

0.662 

do. 

0.68 

0.71 

0.6595 

0.1521 

0.17 

0.19 

0.17 

0.09 

do. 

0.19 

0.011396 

0.15 

0.15 

0.15 

0.08 

0.15 

0.22 

0.2087 

0.57 

0.6343 

0.6 

0.56 

0.53 

“do, 

0.67 

0.6165 

0.61 

0.61 

0.6564 

0.4 

0.66 

0.69 

0.6574 

 



  

Exhibit 24 Type R Divergent Segments Using Democratic and Black Registration 

  

Inside Outside Internal Precinct External Precinct 

Obs Segm County Precinct County Precinct % Black % Dem % Black % Dem 

19 19 Mecklen. Charlotte 97 Mecklen. Charlotte 58 0.24 0.51 0.08 0.53 

39 39 do. Charlotte 61 do. Charlotte 45 0.13 0.62 0.1: 0.63 

46 47 do. CO2 Cabarrus 0.0103 0.12 0.54 0.02 0.54 

231. 227 do. HUN Mecklen. LCI - North 013 0.57 0.1 0.63 » 

87 88 Davidson Ward 2 Davidson Ward 6 0.08 0.68 0.08 0.72 

96 97 do. Arcadia do. Welcome 0.03 0.44 0.02 0.51 

195 196 do. do. Forsyth ~~ South Fork 2 do. do. 0.02 0.53 

196 197 do. Hampton do. do. 0.03 0.38 do. do. 

97 98 do. Midway do. do. 0.06 0.42 do. do. 

Thomasville 

98 99 do. do. Davidson 6 do. do. 0.01 0.43 

117 118 Guilford Jamestown 2 Guilford Soh 0.05 0.51 0.02 0.51 

149 150 do. do. do. Friendship 2 do. do. 0.04 0.55 

141 142 do. GB 18 do. GB 17 0.09 0.63 0.08 0.68 

214.210 Iredell Eagle Mills Iredell Statesville 1 0.07 0.55 0.06 0.65 “ 

58 59 do. ~~  ChambersbergRowan Mt. Ulla 0.07 0.55 0.06 0.59 . 

 



  

lja 

EXHIBIT 58 - FEBRUARY 10, 1997 E-MAIL FROM GERRY 

COHEN 

[from:] Gerry Cohen (Bill Drafting, Director) 

[date:] Monday, February 10, 1997 8:40 PM 

[to:] Sen. Roy A. Cooper 

[copy:] Sen. Leslie Winner 

[subject:] 97 Cooper 3.0 

By shifting areas in Beaufort, Pitt, Craven, and Jones Counties, 

I was able to boost the minority percentage in the first district 

from 48.1% to 49.25%. The district was only plurality white, 

as the white percentage was 49.67%. 

This was all the district could be improved by switching 

between the 1st and 3rd unless I went into Pasquotank, 

Perquimans, or Camden. I was able to make the district 

plurality black by switching precincts between the 1st and 4th 

in Person/Franklin Counties (Franklin was all in the 1st under 

COOPER 3.0, but had been in the 4th District in the 80's 

under Price. By moving four precinct each way, I was able to 

boost the district to 49.28% white, 49.62% Black. About 0.6% 

is native American (Haliwa). I could probably improve thins 

a bit more by switching precincts in Granville and Franklin 

betwen the 1st and 4th. 

I have moved Greensboro Black community into the 12th, and 

now need to take bout 60,000 out of the 12th. I await your 

direction on this. I am available Tuesday. 

 



  

lja 

COMPLETE TEXT OF SENATE FLOOR SPEECH BY 

SENATOR ROY COOPER: MARCH 27, 1997, FLOOR 

DEBATE OF HB 586, 97C-28F-4F(2) (EXHIBIT 100 

EXCERPT) 

[*3] Reading Clerk: H.B. 586, A BILL TO BE ENTITLED 

AN ACT TO DIVIDE NORTH CAROLINA INTO TWELVE 

CONGRESSIONAL DISTRICTS, reported favorably. 

  

President: Senator Cooper is recognized to explain the bill. 

Senator Cooper: Thank you, Mr. President, members of the 

Senate. Today we have a congressional redistricting plan that 

splits forty-six (46) counties, that has six (6) counties which 

have three members of Congress, and which splits over 

eight [sic] (80) precincts. The plan we have today has some 

social merit. As a result of this plan, for the first time in many, 

many years, we have two minority members of Congress as a 

result of the current plan. However, we have a plan that is a 

  

geographic mess. I have, for your viewing pleasure if you want 

to call it that, had placed on your desks a copy of the current 

map so that you can see how difficult it is for people to know 

in which Congressional district they reside. Last year, the 

United States Supreme Court ordered the Legislature to redraw 

the map as a result of the 12" Congressional District being 

declared unconstitutional. Now there are arguments for and 

against this decision. In fact, the Court found it close. It was 

a 5-4 decision and one of those Justices sort of wavered back 

and forth - Justice O’Connor. But the result was that the 

12 District was held unconstitutional by a 5-4 decision and we 

were ordered by April 1 to come up with a new map. When 

 



  

2ja 

this process began, we had a House controlled by the 

Republican Party and a Senate controlled by the 

[*4] Democratic Party and people were saying that it couldn’t 

be done, that we could not reach an agreement. In fact, other 

states which had been ordered by the Court to redraw their 

plans under similar circumstances, other states have been 

unable to agree on a plan. I want to commend all of those who 

have been involved in this process because we have agreed on 

a plan - a plan that is fair and workable. You have the plan on 

your desk, it is entitled “97 House/Senate Plan A.” This plan 

reduces the number of counties that are split from forty-five 

(45) [sic] to twenty-two (22). There are now only 22 counties 

split under this plan. It reduces the number of precincts split 

from over eighty (80) to two (2) and those two precincts have 

special circumstances with satellite annexations, etc. and are 

split under most other plans as well. You have a plan which 

provides for geographic compactness, provides for 

consideration of community of interest, and provides for fair 

partisan balance. I think that all of the congressional districts 

would be competitive. However, it is likely that, if political 

fortunes remain the same, that we would end up with a plan 

that would elect six Democrats and six Republicans. We said 

from the beginning in the Senate that in 1996 the people made 

a decision to elect six members of Congress from the 

Democratic Party and six members of Congress from the 

Republican Party and we should not use court-ordered 

redistricting to alter that result. Therefore, we’ve come up with 

the plan that you see before you. In considering the plan, we 

looked at community of interest, looking at keeping precincts 

whole, at keeping counties whole as much as possible. We 

 



3ja 

looked at making sure that no counties had more than two 

members of Congress representing the county. We looked at 

racial fairness. Let me tell you a little bit about the 1% and the 

12t Districts because the unconstitutionality of the 12 District 

is the reason why we are here. You have the statistics on your 

desk, but the 1% District is majority minority, total population 

50.27%. [*5] However, let me emphasize that race was not the 

predominate factor in drawing the 1% Congressional District. 

We have a district that has ten whole counties and ten split 

counties. It's a district which respects the rural agrarian nature 

of the northeast. Itis a district which, I believe, that a minority 

member of Congress or even a minority challenger would have 

an excellent chance to be re-elected, but I believe the 1* District 

not only is constitutional, but also complies with the Voting 

Rights Act which is also a responsibility we have with this plan 

to have it pre-cleared by the Justice Department and held 

constitutional by the Courts. The 12" District is almost 47% 

majority minority. Currently, the 12* Districtunder our current 

plan is majority minority. I believe that this new 12* Disirict 

is constitutional for several reasons. First, and maybe most 

importantly, when the Court struck down the 1 2" District it was 

because the 12% District was majority minority and it said that 

you cannot use race as the predominate factor in drawing the 

districts. Well guess what! The 12" District, under this plan, 

is not majority minority. Therefore, it is my opinion and the 

opinion of many lawyers that the test outlined in Shaw vs. Hunt 

will not even be triggered because it is not a majority minority 

district and you won't even look at the shape of the district in 

considering whether it is constitutional. That makes an 

eminent amount of sense because what is the cut-off point for  



4ja 

when you have the trigger of when a district looks ugly. I think 

that the court will not even use the shape test, if you will, on 

the 12 District because it is not majority minority. It is strong 

minority influence, and I believe that a minority would have an 

excellent chance of being elected under the 12* District. If, 

however, the court decides that the test is triggered for some 

reason and that we should look at the criteria outlined in Shaw 

vs. Hunt, you need to look at what the, how we have improved 

the shape of the 12™ District. First, it is much more compact. 

It is 67% shorter in length [*6] than under the old plan and you 

see how the old plan stretches from Gastonia to Durham. You 

can drive the length of this district in two hours. It is the third 

shortest district in the entire State. It covers six (6) counties 

instead of ten (10), it connects the metropolitan area of 

Charlotte and the metropolitan area of the Triad. There is 

certainly a community of interest along that corridor, 

economic, social, and otherwise. It is much wider and it takes 

into consideration the incumbent and political balance. For all 

of those reasons, I believe that the 12 District will be held 

constitutional. Members of the Senate, redistricting is a 

difficult process - I don't want this job again, but I believe that 

we have been able to overcome partisan politics and we have 

been able to reach a plan that is fair to the people of North 

Carolina, and fair to all involved. The House agrees. 

Yesterday, the House voted unanimously in favor of this plan - 

87-30. Of those 87 members who voted “yes”, 52 were 

Republicans and 35 were Democrats. That is a good strong 

bipartisan show of support for this plan. I believe that this plan 

is acceptable to all of the members of Congress. There are a 

couple who have stated objections about the way that some area  



  

5ja 

had been moved around, but as far as the partisan nature of the 

districts is concerned, we have preserved the current partisan 

nature of each of the districts and for that reason, I think that all 

of the incumbents are satisfied. And let me emphasize to you 

that this is not an incumbent protection plan. This is a plan that 

attempts to preserve the partisan nature of each of the twelve 

districts as they now exist. I believe that we’ve done that with 

this plan. Members of the Senate, I encourage you to vote for 

this plan. We have a responsibility as a legislature to draw a 

plan. It’s easier politically to say “let the courts do it”, but 

that's rolling the dice. Number one, you don't know what you 

are going to get and, number two, it is shirking our 

responsibility as representatives of the people to do what the 

Court has [*7] ordered us to do. We may not like everything 

about the plan, there are some parts of the plan that I wish I 

could change, but the process of negotiations require give and 

take. That’s what has happened here. I think we have a result 

that is fair and equitable for all of the people of North Carolina 

and I encourage your “yes” vote. Thank you. 

  
[*21] Senator Blust: Let me first start out by saying that this 

is, this plan is and improvement over what we have now, no 

doubt about it. Senator Cooper has put in a lot of work on this. 

I admire his stamina sometimes, all the tasks he’s been given, 

he seems to perform very well in meeting with . . . . of them, 

but I think I am falling into a familiar role here, I guess I am 

starting to find any role on the team. I think more and more I 

am becoming the little boy who in the story, “The Emperor’s 

 



  

6ja 

New Clothes”, had to get up and say when no else dared to tell 

the Emperor that he was not wearing anything because he had 

been snuckered(?) by some con men tailors, a little kid not 

knowing what he was doing said in public one day that the 

Emperor didn’t have any clothes. At that point, once it was 

said everybody was free to realize that, but my problem with 

this plan is [*22] fundamental and I just don’t think - in 

anything you come out with a good result unless you have good 

fundamentals. Everybody now is excited about the Final Four 

and the Tarheels have been practicing all week, but most of 

their practice time, even at this level of competition, is drilling 

the fundamentals and drilling the fundamentals, because if you 

forget them everything else crashes down and the major 

weakness with this plan, quite frankly, and I think everybody 

here knows this is the truth whether they will get up and admit 

it or not it’s not going to make a difference, is the fundamental 

predicate was on protecting the current twelve. And that was 

the only way to really get a deal between the parties on this and 

get support for it and there were just two factors that went into 

developing this plan - one was protecting incumbents, the other 

was race. We might as well face that. Part of the problem is 

that the Courts have put, I think, ridiculous constraints on this 

process. Some of the problem lies in the fellows in the black 

robes, but we come to this Body and I think we sometimes lose 

our way, we forget the big picture, forget what it’s all about and 

I just want to quote from the Constitution of this State that sets 

up this Body and sets up our government and its says this in 

Article 1, Section 2 called “Sovereignty of the People - All 

political power is vested in and derived from the people; all 

government of right originates from the people, is founded 

 



  

Tja 

upon their will only, and is instituted solely for the good of the 

whole” and I think concocting a plan based mainly on 

protecting twelve out of seven million (7,000,000) citizens 

means that the plan can’t be a good one. Logic teaches that if 

the premise of something is wrong, all the predicates that 

follow from that flawed premise aren’t really logical and here 

we have a premise that’s wrong and I think we forget this 

fundamental point about our government being for the people 

and the people having power, because what happens is 

politicians win an election [*23] and suddenly they seem to 

think they become entitled to their seats for as long as they 

want to have them. That’s what we have, we have it at every 

level, we have it here in our district system, we have it in 

Congress, if once you are elected you search, there’s a science 

behind this, I hear people arguing over I want this precinct, I . 

want that precinct, solely designed to make it easier for them to 

retain their seat and we argued in here the other day on a bill 

about tenure. I think what we have in our redistricting is a 

form of political tenure and two of these seats, in 1994 the 

public voted one way and in 1996 another. So now in 1997 

that we’ve got an opportunity because of a court decision to 

redo the districts, we are gonna do it to solidify what happened 

in “[sic] 96 so that in ‘98 maybe a difference public can’t see 

it differently. You know, sometimes I talk to people and talk 

about government and try to keep it on the basics and I have 

found that you can hold up a map of our districts and you don’t 

even have to say any more when you are trying to make the 

point that government has gone astray somewhat, people look 

at these things and they can see it without any need for 

anything more and we have been talking about districts here. 

 



  

8ja 

Someone said that one of the districts is too long, look at 

District 5, here. It goes along the Virginia border forever. No 

one tried to correct that and I just don’t see any rational plan to 

make districts concise to where they serve the people in the 

community and I'll just give one example. There’s actually a 

precinct in Mecklenburg that is split between everybody else in 

the precinct and one person, one house, and I’m told, wait a 

second, it’s not one house, there is some industrial area around 

it and that had to be split in order to keep one of these districts 

contiguous. That is the kind of . . . . we go through here and 

someone, Senator Hoyle, mentioned that 51 House Republicans 

voted for this as if that is some kind of . . . . between House 

Republicans and Senate Republicans. Well, I don’t know how 

to explain that, I don’t think when [*24] we are pointing the 

fingers over district there’s a, any party can say anything about 

the other and have totally clean hands, but I do fear that some 

of my brethren in the House may have lost their way and 

bought into this, bought into this idea that we’ ve got to protect 

the current twelve and I just think that’s a fundamental flaw 

and I hear some chuckling and maybe I am too naive for this 

job, I decided to become a Republican because I thought we, as 

Republicans, believed in a certain set of principles and ideals 

and when I see one of the fundamental ideals behind 

government being violated, I just can’t bring myself to support 

it. Thank you. 

 



  

9ja 

[24] Senator Lucas: Senator Cooper, many of my 

constituents were concerned about their not being placed with 
  

District 1. Can you explain to me why that was not possible? 

Senator Cooper: Thank you, Senator Lucas, I know that there 

are numerous members of the community of Durham, 

particularly in a minority community of Durham, who are 

concerned about this plan. [*¥25] Currently in the 12" District 

is where the minority community of Durham resides. 

Unfortunately, that is the very tale end of the 12" District and 

I think everyone understands that in order to draw a map that 

is constitutional, you cannot include Durham in the 12% District 

and 1 think that, although the wishes and the desires may be 

there, it’s not possible. The reason that, really twofold, as to 

why we did not go with the Durham County and pick up the 

minority portion of Durham County and put it in the 1%, the 

first reason is that we very much wanted to retain the rural 

agrarian nature of the northeastern North Carolina 1* District. 

That was very important. The court talks a lot about 

communities of interest and when you put urban Durham in 

  

with the rest of rural northeastern North Carolina, you run into 

the same problems that you run into with Senator Cochrane’s 

amendment and you can . . . . of the courts, and secondly, I do 

think if you did that then it would be clear that race would have 

been the predominate factor in drawing the 1* District. For 

those two reasons, it was not done.