Hithon v. Tyson Foods, Inc. Motion of Amici Curiae for Leave to File Brief in Support of Plaintiff-Appellant's Petition for Rehearing En Banc

    MAY 308 .208688 "11:26 AM FR TO 12122132852,784 P.B1-33 

Regionsi Office 
E 

A A 
10th Floor 

N GAL DEFENSE 
1444 Eye Street. NW 

prong de imidiipdy FUND, INC. Washington, DC 20005 (202) 682-1300 Fax:(202) 682-13] 

FAX TRANSMISSION 

TO: Norman Chachi kon FAX: 2/L-2/7°A052 
  
  

  

  

N cca iN Re ren 
L-226~ 7802 

  
  

  

  

  

  

FROM: lad. in 
DATE: 5734/00 

You will receive 4 pages (including cover sheet). Ifyou do not, please call the number 

above to notify us. 

Message: i J oy on <2 D: comixs o~ Arm. 

  

  

  

  

  

  

ccnfidsdality Not 

The information contaned in this facsimile message ie legally privileged and confidenual information intended only for 

the use of the individual or enury named above. fthe reader of this message 13 not the intended recipicat, you arc hereb 

notified that any dissermunauon. distribution or copy of this telecopy is strictly prohibited. If you have received this 

telecopy in error. please immediately noufy us by telephone and return the original message to us at the above address 

via the United States Postal Scrvice. 

National Office Rayionai C 

Cononbucons ars The NAACP Legal Deferwn & Educational Fund, Inc. (LDF) is pot part Suite 1600 Saket, 

deducnble for U.S of the National Axsocumian for the Advanceesent of Colored Peopts 99 Hudson Strect 315 West 

= went ast 4 NAACP sithourh LDF was founded by the NAACP and shares is New York, NEW Los Angrit 

vATY 10017 (213) 624- 

 



1:27 AM FR 

WBGD&T PA 

Nos. 99-1864 and 99-1868 
  
  

In the 

Supreme Court of the United States 

  

  

JAMES B. HUNT, JR., et al. 

Appellants, 

and 

Alfred Smallwood, er al. 
Appellant-[ntervenors, 

Vv. 

MARTIN CROMARTIE, ef al. 
Appellees. 

  

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

MOTION TO DISMISS, ORIN THE ALTERNATIVE, 
TO AFFIRM 
  

MARTIN B. McGEE ROBINSON O. EVERETT 
WILLIAMS, BOGER SETH A. NEYBART 
GRADY, DAVIS & TUTTLE EVERETT & EVERETT 

708 McLain Rd. P.O. Box 586 

Kannapolis, NC 28081 Durham, NC 27702 
(704) 932-3157 (919) 682-5691 

DOUGLAS E. MARKHAM 
P.O. Box 1305823 
Houston, TX 77219-0923 ‘Counsel of Record 

(713) 655 - 8700 

May 25, 2000 Arntorneys for Appellees 
TERY TY rr a EE   

  

      

     



  

03,2500 14:08 FAX ‘@ WBGD&T PA 

i 

COUNTERSTATEMENT OF 
QUESTIONS PRESENTED 

, [s there evidence ta support the district court’s 
finding thar race predominated in creating the 
Twelfth District? 

2. Was the district court correct in finding that the 
racially gerrymandered Twelfth District did not 
survive strict scrutiny? 

3. Did the district court properly reject Appellants’ 
¢laim preclusion argument? 

4, Did the district court act within its discretion when it 
prohibrted use of the unconstitutional Twelfth District 
in future elections? 

 



AM FR 

WBGD&T PA 

[This page Is Intentionally left blank.] 

 



MAY 38 28086 27 AM FR 
0657253/00 Li: Fax ‘® WBGD&T Pa 

TABLE OF CONTENTS 

QUESTIONS PRESENTED 

THE EVIDENCE AT TRIAL AMPLY SUPPORTED 
THE DISTRICT COURT'S FINDING OF A 
PREDOMINANT RACIAL MOTIVE 

A. Circumstantial Evidence Clearly Establishes 
The Twelfth District's Race-Based Purpose . 

- The Expert Testimony Supported the 
Finding that Race Predominated in the 
Formation of the Twelfth District 

. Direct Evidence Produced at Tnal Confirms 
the Overwhelming Circumstantial Evidence 
that the Twelfth District is Racially 

II. THE TWELFTH DISTRICT FAILS THE 
STRICT SCRUTINY TEST 

 



Jl: 27 Al FR To 12221382852. 784. P.B86-38 
i Ee (ra "dq J24nY WEBGD&T PA @ © 04 

  

1v 

III. APPELLANTS’ CLAIM PRECLUSION 
ARGUMENT LACKS MERYT |... .. ones. vin 20 

IV. THE DISTRICT COURT ACTED WELL 
WITHIN ITS DISCRETION IN PROHIBITING 
FURTHER USE OF THE TWELFTH DISTRICT . . 27 

CONCLUSION avalos cl LE Ta 30 

 



MAY 

  

    38 2080 
Uo: du HU Las sp AY i “pd 

I'L 327 AM FR TO 12122132852, 704 
WBGD&T PA 

TABLE OF AUTHORITIES 

CASES 

Anderson v. City of Bessemer, 
470 U.S. 5621983) .......... 

Bush vy. Vera, 

SITUS. 05301996). ........ 

Cromwell v. County of Sac, 

9411S. 331 {18378} LL La ol 

Federated Depr. Stores, Inc. v. Moite, 

452 US. 194 (1981)... ... ous 

Gomillion v. Lightfoot, 
364:01.8, 33901980) .........¢. 

Hays v. Louisiana, 

936 F.Supp. 360 (W.D.La. 1996) 

Hunt v. Cromartie, 

$2605.34: (1099) vl 

Klugh v. United States, 
818 F.2d 294 (4" Cir. 1987) .... 

MceQueeney v. Wilmington Trust Co, 
779 F2d 916 (3° Cir. 198 5) . .. 

 



      

  

MAY 30 2808 11:27 AM FR TO. 12122132052, 784 P.BB-33 
US 25,00 Id os VN FAX i id WBGD&T Pa ZH 

Miller v. Johnson, 

SISGS IONS) 0 i at 12 

Public Service Comm'n of Missouri v. Brashear Freight 
Lines. Inc. 3080.8. 204 (1938)... vin en vnnnnrns 6 

Reynolds v, Sims, 

3770S. 533,88500988) .... .. vidi rns 27,28 

Shaw v. Hunt, 

Sl US. 80001008) vivre osc sriny ann rien 1.25.27 

Shaw v. Reno, 

SOB 1.8. B30 L100 ie x. vv maria wn 6,12, 14 

United States v. Hays, 
SIS US. 737C1098) i... ay vai 26 

Vera v Bush, 

933 F.Supp. 1341 (S.D. Tex. 1996) ........... 28, 29 

 



    

  

1AY 238 2088 11:27 AM FR TO 12122132852,784 P.23-33 
U3-25/.00 13:08. FAX '® WBGD&T Pa » doz 

STATUTES & RULES 

G2U.8.C.51973 .... 5.00. ARG IE CS IE 4 

FEO. R.Otv. PB. S2ay . o.oo i ved ile. 

1992 N.C. Sess. Laws, oh), § 1.1... oP vii sviieiva 3 

SECONDARY AUTHORITIES 

Pildes & Niemi, Expressive Harms, “Bizarre Districts,” and 
Voting Rights: Evaluating Elecrion-District Appearances 
After Shaw v. Remo, 92 Mich. L. Rev. 483 (1993) ....... 13 

 



MAY 30 20800 Lar 2y AM FR 
WS A LEE SN aa YD WBGD&T Fa 

MOTION 

Pursuant to Rule 18.6 of the Rules of the Supreme 
Court of the United States, Appellees move that the Court 
summarily affirm the judgment sought to be reviewed, or in the 
alternative, dismiss the appeal on the ground that the questions 
it raises are so insubstantial as to require no further argument. 
The extensive record before the district court amply supported 
its findings that race predominated in drawing the Twelfth 
District in the 1997 Plan and that the district failed the strict 
scrutiny test. In light of these findings the court propetly 
concluded that this District should not be used in Congressional 
primarics or elections. 

COUNTERSTATEMENT OF THE CASE 

After over four years of legal battle requiring two 
appeals to this Court, North Carolina’s “bizarre” Twelfth 
District as drawn in the 1992 Plan was finally held 
unconstitutional. See Shaw v. Hunt, 517 U.S. 899 (1996). 
Three weeks later, on July 3, 1996, Martin Cromartie and two 
other registered voters in Tarboro filed a separate action in the 
Eastern District of North Carolina to have the First 
Congressional District al3o declared unconstitutional.! District 
Judge Malcolm J. Howard, to whom the case was assigned, 
entered a stay order and periodically extended it awaiting final 
resolution of the Shaw case. 

  

None of the original plainifs in the Show litigation had standing © 
challenge the Firgt District becausa none of them resided there. On hly 9, 
1996, 2 second amended coreplaint Was fled in Shaw, \lsdng Cromartie ad 
die other two Tarboro voters in the ception as plaintiffs. (Sew Appelisnry’ 
1S. App. at 2832-3043.) 

 



MAY 38 2888 | 1:28 AM FR 
03/23/00 14:08 FaX di oa YBGD&T PA 

2 

On April 1, 1997, the General Assembly submitted its 
1997 Redistricting Plan to the Shaw district court for review. 
On September 12, 1997, that court filed an order approving the 
1997 Plan. In sa doing, however, the Court emphasized the 

limited nature of its approval? 
On Octorer 10, 1997, after termination of the Shaw 

lingarion in the previous month, the Cromartie plaintiffs filed 
an “Amended Complaint and Motion for Preliminary and 
Permanent Injunction.” This amended camplaint included as 
plaintiffs not only the three original plaintiffs from the First 
District, but also other plaintiffs who were registered voters in 

the 1997 Plan's Twelfth District. When the State then moved 
to have the Show panel take junsdiction over the Cromartie 
suit, thet panel denied the motion;® and the State did not appeal. 

On January 15, 1998, the Cromartie case was 

  

3 The districz court smead: 

We close by noting the limited basis of the approval of the plang 
thet we are empowered 10 give m the comtext of thiy litigation. It 
is limited by the dimensions of this civil action as that is defmed 
by the parties and the claims properly before us. Hers, that means 
thar we only spprove the plan ag an 3dsquare remedy for the 
specific violation of the ladrvidual equal protection rights of those 
plaintiff who successfully challenged the legisiature’s creation 
af former District 12. Our approval thus does not—cannat—run 
beyond the plan's remedial adequacy with respect to thoce parties 
and the sequal protection violeton found as to former District 12. 

(Appellants’ J.S. App. at 320a.) 

7 At the same time the State also sought to have the Shaw panel consider 
a case, Daly v. Leake, No. 5: 97-CV-750-BO (E.D.N.C filed July 3, 
1996), panding before what became tho Cromartie panel and winch 
challenged not only North Carolina's 1997 congressional redistricting 
plan but alze the State's House and Senate apportionment plans. 

     



MAY 38 28688 11:2 
wit wilh iy 5 WBGD&T PA 

3 

reassigned from Judge Howard to a three-judge digtrict court 
pane] consisting of Circuit Judge Sam Ervin [II, and Dismrict 
Judges Terrence Boyle and Richard Voorhees, On January 30, 
1998, the Cromartie plaintiffs renewed the prayer for relief 
contained in their amended complaint by filing a motion for 
preliminary injunction; and on February S, 1998, thay moved 

for summary judgment. On March 3, 1998, defendants 
responded with their crogs-motion for summary judgment. 

On April 3, 1998, the district court granted plaintiffs’ 

motions for summary judgment and for preliminary aad 
permanent injunctions. The defendants unsuccessfully 
requested a stay from tho district court and this Court. The 
district court granted the legislemre an opportunity w draw a 
new plan (the “1998 Plan”) and to conduct the 1598 
congressional primaries end elections under that plan. The 1998 

Plan reduced 1he African-American population of the Twelfth 
District to about 35% from almost 47% in the 1997 Plan, 

Moreover, unlike the 1997 Plan, in which all six counties of the 
Twelfth District had been divided, the corresponding district in 

the 1998 Plan had one undivided county and split four others. * 
The law enacting the 1998 Plan contained a proviso that 

this plan would be used in the 1998 and 2000 primaries and 
elections, unless the Court rendered a favorable decision in the 
apped] the State was pursuing with respect to the district court's 

summary judgment for plaintiffs. See 1998 N.C. Sess. Laws, 
ch. 2,§1.1. On May 17, 1999, the Court reversed the summary 
Judgment that had been entered in the plaintiffs’ favor. See 

    

'  Inmead of splitting four major cities-Charlotte, Wineton-Salem, 
Greensboro, and High Poim-wgs well as Swmtesville, Salisbury, and 
Lexington, the 1958 Plan's Twelfth Dlstrict split only Charlotte nd 
Winston-Salem. Furtrermore, the 1998 Plan accomplishes the same 
purparted objectives that were put forward as rationales for the 1997 Plan. 

 



11:28 AM FR TO 12122192852,704 P. - 1 
(00 14:08 FaX ® WBGD&T Pa % @ 

  

4 

Hunt v. Cromartie, 526 U.S. 541 (1999). The effect of this 
decision was to reinstate the 1997 Plan for use in pnmanes and 

clections in the year 2000. 
In Cromartie, the Court discussed the evidence and 

concluded that, although a predominent racial motive of the 
Legislature could be inferred from the plaintiffs’ evidence, the 

State had raised mn issue of fact to be decided in a ial. In 

remanding for detzrminaton of the legislative motive, the 
Court observed that “the District Court is more familiar with 
the evidence than this Court, and 1s likewise better suited to 

asscss the General Assembly's motivations.” Jd at 553-54. 
Preparation for triel was extensive and was conducted 

on an expedited schedule. After the sudden death of Judge 

Ervin, District Judge Lacy H. Thomburp wes assigned w the 
panel as Circuit Judge Designate; and he presided at the trial, 
which lasted from November 29, 1999 until December 1, 1999. 
The plaintiffs called eight witnesses to testify and defendants 
called four, The court received voluminous documentary 

evidence. 

On March 7, 2000, the district court delivered its 
opinion, finding race the predominant motive in the creation of 
the 1997 Plan’s Twelfth and First Districts. The court also 
found “no evidence of a compelling state interest in utilizing 
race to create the new 12" District has been presented.” 
(Appellants’ J.S. App. at 29a.) On the other hand the court 
found the First Dystricr survived strict scrutiny because of the 
State’s compelling interest in avoiding possible Liability under 
Section 2 of the Voting Rights Act. See 42 U.S.C. §1973. 

Concurrent with filing notice of appeal on March 10, 
2000, Appellants requested a stay from the district court. After 
denial of that request on March 13, 2000, the same day 

Appecllant-Intervenors gave notice of appeal, the Appellants 

    

 



MAY 

  

   38 28686 
Vipera gual viv URE, | EL UREN '® 

11228 AM FR Towed 2213 

WBGD&1 PA “ 

5 

applied to this Court for a stay; it was granted on March 16, 
2000° Almost immediately thereafter Appellees moved 
unsuccessfully to expedita the schedule far sppeal. After 
Appellants sought a thirty-day extension to file their 
jurisdictional statement and Appellees filed their opposition, 
the Court allowed a ten-day extension until May 19, 2000. 

SUMMARY OF ARGUMENT 

Neither the Appellants’ nor the Appellant-Intervenors’ 
jurisdictional statement raises an issue that merits the attention 
of this Court. Indeed, the Questions Presented ignore the 
plaintiffs’ extensive evidence® and relate only tangentially to 
the record of trial.” Moreover, Appellants disregerd the 

  

* The Court's order dated March 16, 2000, provided that “[i]f the appeals 
are dismissed, or the judgment affitmed, this order shall terminate 
avromaticelly. In the eveot jurwdiction is noted or postponed, this order will 
remain m effect pending the sending down of the judgment of this Court.” 
529U.S.__ (2000). 

* For example, in each jurisdictional statarnent the first Question Preaniad 
refers to the Twelfth District as “somewhat kregular” or “lightly irregular” 
m shape. Such a description ia at odds with any “eyeball” perception of ther 
district as portrayed in maps thereof and with the sradstics indicating that the 
disgict is one of the least compact in the nation. The Appellants’ first 
Question Presented refers to the State's having “considered race,” but the 
district court found that race was the predominzat motive, a finding going far 
beyond “consideration” or “consciousness” of mec. 

The Appellants’ second Question Presented asks whether the strict 
scrutiny of Shaw is invoked simply by showing that the shallenped district 
was Intendonally crezmed ag 8 majority-minority district. Since the Twelfth 
District in the 1997 Plan wes bot majorizy-mincrity, this Question obviously 
coocarns oaly the First District, which the gourt below fond to be 
consrttutianal since it passed the test of strict scrutiny. As 10 wat dirtrict, 

 



    

  

FR TO 121221323205 4 HH ¢ 

NEN amp EAS ah TY, Te YS WeEGLD&L FA » 

6 

staternent made by their lead counsel at trial to the effect that 
the Twelfth District involves “purely a factual matter’ —whether 
race had been the legislanure’s predominant motive in drawing 
the District. (Tr. at 31.) 

At trial the plaintiffs did not rely solely on the 
circumstantial evidence they presented some eighteen months 
earlier in seeking summary judgment. Instead as a result of 
extensive discovery and trial preparation, they presented 
additional persuasive evidence that mce had been the 
predominant motive in creating the 1997 Plan’s Twelfth 
District. This evidence included testimony of three prominent 
legislators who were serving when the 1997 Plan was enacted 
and were convinced that a predominant racial motive existed ® 
The plaintiffs also offered testimony of several other persons 
active in politics and familiar with the contours end voring 
patterns of the Twelfth District. Each testified from his broad 
  

the Appellants’ Question is misstated because the diszict count found that 
race predominated in its creation, and the evidence amply supported this 
finding. The First District in the 1997 Plan unnecesaarily splits nine major 
cities and towns by race, divides helf of its counties, and violates 
Compactness and other tradironal redistricting principles. Under the 
crcumstances described by the distict court, (see Appellants’ J.8. App. at 
183, 303), clearly Shaw v. Rano, 509 U.S. 630 (1993), applies and the only 
substantive issue concemimg the First District is whether the district court 
ruled correctly that it sarisfied the test of strict scrutiny. The meaner of the 
Fst District would be a question for plaintiffs m present--[f they chose to 
do so~rather than for the State defendants. Appellees doubt that Appoltants 
even have standing af this polm w seek from the Court an advisory opinion 
as to whether the evidence concemimg the predominance of race in the 
Majority-Minority First District triggered ta test of strict scrurimy. Cf 
Public Service Comm'n of Missouri v. Brashear Fraight Lines, ine., 306 
U.S. 204, 206 (1939). 

* Unlike the two legislators who testified for the dafendants, the plalarifts' 
witnesses had no veason to offer port hoc rationelizations ss to the 
predominant mative of the General Assembly. 

 



11:23 AM FR TO 12122132052,784 P.16-33 
3-00 14:08 Fal @ WBGD&T PA ® @14 

  

7 

experience that race was the only explanation for the manner in 
which the Twelfth Dismiot had been drawn. 

The plaintiffs offered in evidence portions of the 1997 
Plan’s legislative history which made clear the predominance 
of race. In addition, plaintiffs presented a “smoking gun” e- 

mail authored by Gerry Cohen, who operated the General 
Aszgsembly’s compiner tw create the 1997 Plan.’ Cohen sent the 
e-mail to Senators Roy Cooper and Leslie Winner, who both 
were very mvolved in preparing the 1997 Plan! This e-mail 
revealed clearly that race predominated in shaping the First and 
Twelfth Districts." 

  

® Cohen played a similar role in drawing the 1992 Redistricting Ples, 

® Ag areuained counsel for the Genernl Assembly, Senator Laslla Winner 
had played a major role in creating the mooastitutional 1992 Plen. 

"" The e-mail, Ex. 58, was sent on February 10, 1997, amd reflected, inter 
alia, the change which gave the 1997 Plan Twelfth District ns uldmas form. 

By shifting arcas m Begufort, Pitt, Craven, and Jone 
Countics, | wes able ta boost the minarity percontags in the 
first district fram 48.1% 10 49.25%. The district was only 
plurality white, as the white percentage was 49.67%. 

This was all the district could be improved by swixhing 
benween the 1™ and 3™ unless | went to Pasquonmik, 
Perquimans, or Carnden. | was able wo make the district 
plurality black by switching precincts between the 12 and 4% 
in Personv/Franklin Counties (Franklin was all in the |< under 

Cooper 5.0, but had been m the 4* District in the 80's under 
Prica. By moving fom precmct (sic) cach way, I wes able to 
boot the District to 45.28% white, 49.62% Black. About 
0.6% » nanve American (Haliwa). | could probebly improve 
thins [sic] a bit mare by switchmg precincts in Granville and 
Franklin between the 15 and 4th. 

[ have moved Greensboro Black Community mto the 12th, 
and now ned to take bout [sic] 60,000 out of the 12th. |} 
await your direction on this. [ anv availgbic Tuesday. 

  

 



MAY ‘38-2060808: 11:29AM FPF 
3% al TAR EE TEE N WBGD&T PA 

8 

At miel, plaintiffs offered as an expert Dr, Ron Weber, 
a political scientist with extensive experience in rediqtricting 

litigation”? His detailed exper testimony, (Tr. at 143-321), and 
related reports established that mace clearly predominated as the 
motve for drawing the Twelfth District. Appellants, on the 
other hand, offered as an expert Dr. David Peterson, a 
statistician who lacked prior contact with redistricting. He used 
an untested methodology which had never received any peer 
review and was shown to be defective and unreliable. 

At the outset of the tial, counsel for Appellants 
conceded thet no “compelling state interest” existed wo justify 
the Twelfth District if the court found race had been the 
predominant motive in creating that district. (See Tt. at 32.) 

Counsel for Appellant-Intervenars took the same position. ™ 
(See Tr. at 596.) In any evant, the district court properly found 

no evidence had been offered to show any compelling state 
Interest or that the Twelfth District had been narrowly tailored. 

Appellants seak to raise an issue of claim preclusion. 
(See Appellants’ J.S,, Question 3.) The district court properly 
rejected this defense becanse the Shaw panel made clear in its 
Memorandum Opinion of September 12, 1997, that claim 

    

'? As the Court may be aware, Dr. Weber haz bean mvolved extensively a4 
an expen in redistricting litigation m North Carolina, Georgia, Louisiana, 
Virginia, end Texrs. 

"" Appellant-Intervenors did not raise this issue in the protrial arder or 
during the wial, or offer any evidence in this regsrd. Under these 
circumsmnees, Appellees are surprised that Appellant-Intervenons now 
aonbad that tre“Disarict Court Erred by Failing to Determine Whether the 
State had a Compelling Justification for Creating a Narrowly Tailored 
District 12. (Appellant-Intervenors’ J.8, ar 22.) It wowd seem that 
Appellant-Inervenors would be precluded from rismg this issue on appeal 
because they did not pregerve it at vial. 

 



MAY 

  

   30 2000 11:28 AN FR Tol 2 12209 
Jeb RL EYE EEE BT hate V7, TR '® WBGD&T Pa 

9 

preclusion would not apply. (See Appellants' J.S. at 23-32 & 
nl.) Furthermore, even if the Show panel had intended to bind 
non-parties, its arder would not have this effect under familiar 
principles of res judicata, 

The final Question Presented by each jurisdictional 
statement concerns the district court’s discretion to enjoin the 
State from using the unconsurutional Twelfth District to 
conduct primaries and elections this year. However, the court 
below had ample precedent for enjoining use of an 
unconstitutional district at this stage ip the electoral process.’ 
Appellants and Appellant-Intervenors have no basis in the 
precedents they cite for overturning the district court’s decision 
10 prevent use of an unconstitutional congressional district.’ 

Indeed, to allow congressional elections 1o teke place in 
North Carolina under the unconstitutional 1997 Plan would be 
an abuse of discretion. The Court would be rewarding the 
Legislature for its refusal to accept the instruction provided by 
thus Court in the Shaw litigation.”’ Ifthe Genera) Assembly had 

  

'* Twa yeers earlier the dlsTict court took the same view in rejecnng, this 
clan proclusion defense. (See Appellants’ J.S. at 245a-46a.) Appareptly 
neither Judge Ervin ner Judge Thomburg disagreed with the majority on this 
issue. 

"For example, in the summer of 1998 the North Carolina Lagisianure 
enacted & new: redistricting plan, and congressiana) primiries wok place that 
Fall without incident. In Texas, in 1996, thirteen conpgrassional districts 
were redrawn and congressional primaries took place uneventfully at the 
te of the peneral election. 

'" The 1997 Plan had not been used previously; and so the issue was not 
whether to allow continued usa of a plem, but [nstead wheter to permit the 
initial uze of en unconstititiona) dismict for an election. 

"7 Instead of applying wuditional r3ce-neutral redistricting principles, the 
State seekd t retain as much as posible of the unconstitutional 1992 Plan. 
The legislative history states an futext ta ceaxin itt the 1997 Plan the “cores” 
of the districes in the earlier 1992 Plan, In the words of Senator Cooper, the 

 



  

wpa ee NDUU&L FA 

10 

proceeded promptly to enact a constitutional redistricting plan 
after the district court's decision early in March 2000, 
confusion and cost could have been avoided in various ways. 
Appellants now seek to invoke the problems created by their 
own obstinance as the reason for compelling the district court 
to allow use of the unconstitutional 1997 Plan in current 
elections. The Cowrt should not reward such tactics and deprive 
the district court of the opportunity to consider the meny 
feasible alternatives to using the unconstitutional Twelfth 
District. 

ARGUMENT 

I. THE EVIDENCE AT TRIAL AMPLY SUPPORTED 
THE DISTRICT COURT'S FINDING OF A 
PREDOMINANT RACIAL MOTIVE. 

Carcfully adhenng to the instructions of this Court on 
remand, the district court conducted a three-day trial from 
November 29, 1999 to December 1, 1999. It heard evidence 
fram twelve witnesses, received over 1100 pages of deposition 
designations from seventeen depositions, and had before it over 
350 mal exhibits--including 225 meps bound in seven three- 
ring binders of four-inch thickness. 

Sustaining the findings of tact based on this vast array 
of evidence requires only that the findings not be “clearly 
erroneous.” This standard of review recognizes that the trial 

  

Twelfth District “uses as 8 foundation the basic core of the exusing 
Congressional districts. No district is dramanically ehanged.” Feb. 20. 1997 
meenng of the Senme Committee on Congressional Redermricting, 97C-28F- 
4D(2) aL 3, (Ex. 100). The Twelfth Diszict “core” obviously was viewed 
in racial wzms. 90.2% of the African-Americans in the 1957 Plan's Twelfth 
District had bean in that district in the 1§92 Plen, but only 48.8% of the 
whites had been m the 1992 Plan's Twelfth District. (See Tr. at 123.) 

 



28688 11:38 AM FR TO 121221320852. 784 P.28-39 
i BTR Eh SE '® WBGD&T PA 

  

11 

court is better positioned to determine the facts than is an 
appellate court. Cf. Fro. R. Civ. P. 52(8). Appellants have 

previously asserted thar “{t]he application of the principles laid 

out by this Court in Shaw and irs progeny is not a simple 

exercise and requires an exacting and fact-intensive mquiry,” 
(Appellants’ Application for Extension of Time to File 

Jurisdictional Statement at 3), and they spparently contend that 
it has become “necessary for this Court to undertake the 

[factfinding) tosk itself” to determine whether race did in fact 
predominate in the drawing of the Twelfth District (Jd, at 3- 
4) Similarly, the Appellant-Intervenars asserted that “on 
appeal, this Court will have to determine what role, if any, that 

race played in the redistricting process.” (Appellant- 

Intervenors' Application for Extension of Time to File 
Jurisdictional Statement at 2.) 

Both Appellants and Appellant-Iniervenors apparently 

have forgotten thet “[tThe reviewing eourt oversteps the bounds 
ofits duty under Rule 52(a) if it undertakes ro duplicate tha role 

of the lower coun.” Anderson v. City of Bessemer, 470 U.S. 
564, 573 (1985). “If the district court’s account of the evidence 
i8 plausible in light of the record viewed in its entirety, the court 

of appeals may not reverss it cven though convinced that had it 

been sitting as the trier of fact, it would have weighed the 
evidence differently.” Id ar 574. Moreover, “[w]here there are 
two permissible views of the evidence, te fuctfinger’s choice 
between them cannot be cleerly erroneous.” Id. (citations 

omittad). “This is so even when the district court’s findings do 

not rest on credibility determinations, but are based instead on 
physical or documentary evidence or inferences from other 
facts.” Id 

The plaintiffs’ burden was “to show, either through 
circumstandal evidence of a district’s shape and demographics 
or more direct evidence going to legislative purpose, that race 
was the predominant factor motivating the legislature's decision 

    
  

 



MAY 
   
   30 2000 11:38 AM FF TO 12122 

UD LTA UYT aia ee '® WBGD&T Fa » 

12 

to place a significant number of voters within or without a 

particular district.” Miller v. Johnson, 515 U.S. 800, 916 

(1995). The district court properly found that Appellees have 
met their burden. Appellants now go so far as to maintain that 
the plaintiffs’ evidence offered at trial was insufficient. This 

contention seems somewhat at odds with the Court’s statement 
in remanding the case fot trial that “reasonable inferences from 
the undisputed facts can be drawn in favor of a racial 

motivation finding or in favor of a political motivation: finding.” 

Cromartie, 526 U.S. at 552. 
Appellees construe this observation to mean that the 

evidence they offered in 1998 was legally sufficient. However, 
this becomes academic, because when the case was tried In 

November 1599, Appellees presented not only ali the evidence 

previously before the district court in ] 998, but also extensive 
additional direct and circumstantial evidence that race 

predominated as the motive for the Twelfth District. Not only 

was the evidence legally sufficient to establish this, but it 

overwhelmingly supported this conrcation. Obviously, the 

district court was not “‘clearly erroneous” in making its findings 

in accord with this evidence. 

A. Ci a] Evid Clexdly Establish 

The Twelfth District's Racs-Based Purpose. 

This Court has recognized that some districts are “so 
highly irregular that (they] rationally cemnot be understood as 
anything other than an effart to *segregat[e) . . . voters’ on the 
basis of race.” Shaw v. Reno, 509 U.S. at 646-47 (quoting 

Gomillion v. Lightfoot, 364 U.S. 339, 341 (1560)). The 

Twelfth is fuch a district 
The undisputed facts show it to be one of the least 

compact congressional distacts in the Nation, ranking either 
432 or 433 our of 435 districts in “perimeter compactness’ and 

  

 



MAY 38 280606 11:38 AM FR 
WO abs Ath al i Ee A '® WBGDAT PA 

  

13 

430 or 431 in “dispersion compactness.” (Tr. at 206.) The 
district court found the Twelfth District's dispersion score of 
0.109 and its perimeter score of 0.041 were both below the 
suggested “low” compactness measures articulated in Pildes & 
Niemi, Expressive Harms, “Bizarre Districts,” and Voting 
Rights: Evaluating Election-Distviet Appearances After Shaw 
v. Reno, 92 Mich. L. Rev. 483, 571-73, tb1.6 (1993). (See 

Appellants’ I.S. App. at 16a.) The Twelfth District ia the only 
district in the 1997 Plan with such minimal compactness and 
which splits every county. The district court also found the 
Twelfth District was less compact than districts elsewhere that 
had previously been held unconstitutional. (See id at 26a.) 

Although the Twelfth District is somewhat wider and 
sharter than its unconstitutional predecessor, it generally 
follows the path of the 1992 Plan’s Twelfth District and retains 
its basic “snakelike shape.” Cromarlie, 526 U.S. at 544. In 
fact, one legislator, in comparing the 1997 version of the 
Twelfth District with jis 1992 predecessor, complained thar “all 
you have done with the 12 District in this bill is knock sixty 
miles off of it.” Mar. 26, 1997 Floor Debate of HB 586 em 
House Floor 97C-28F-4F(1) at )2, (Ex. 100). 

When the District’s bizarre shape is combined with its 
demographics, the single unifying factor explaining its 
geographical anomalies is race. As the distdet court found, 
“[tlhe only clear thread woven throughout the districting 
proccss is that the border of the Twelfth District meanders 
include nearly all of the precincts with African-American 
population proportions of avery forty percent which lie between 
Charlotte and Greensboro, inclusive.” (Appellants’ I.S. App. 
at 25a.) The circumstantial evidence presented to the district 
court exhaustively demonstrates this fact. 

The Twelfth District's total Africen-Amencan 
population is 46.67%, a percentage the dismct court doubted 
was “sheer happenstance.” (/d at 28a n.8.) The percentage of 

 



Wbab&l PA 

14 

African-Americans in the six counties split by the Twelfth 
District is 23.6%, half of 46.67%. Guilford County has the 
highest percentage of African-Americans in the six split 
counties at 26.4%. The district court further found that almost 
75% of the total population in the Twelfth District came from 
mostly African-American portions of the three urban counties 
at the ends of the district, along with parts of the three rural 
counties that have “narrow corridors which pick up as many 
African-Americans as needed for the district to reach its ideal 
size.” (Id at 12a) As the district court also noted, in further 
disregard of political subdivisions the Twelfth District split its 
four cities and many towns along racial lines. 

The district’s distorted shape, therefore, results from its 
twisting through the Piedmont area of North Caroling 10 include 
within its boundaries as many African-Americans as possible 
without exceeding 50% of the total population.’® This is 
depicted clearly in a map offered in evidence by Appellees.’ 
(See Ex. 106.) As shown there, the Twelfih District starts in 
Mecklenburg County near the South Caroling border and moves 
north to inelude ell 26 majority African-American precincts in 
that County, as wel] as all precincts with an African-American 
population exceeding 40%. 

  

" The General Assembly mismkenly believed that so Jong as the African- 
American population wes not a majority, Shaw v. Reno would not apply and 
it would be free to draw the Twelfth Disaict in any mammer it chose in 
disregard of raditional ace-neutral redistricting principles. See infra nate 
33. 

"* This map is lodged with the Court, us are two other maps. Exhibit 253 
shows the partisan votmg performance in the 1988 Court of Appeals race in 
the area of the Twelfth Distrier. Exhibit 305 ¢chows the evolution of the 
Twelfth District from the 1992 to the 1997 and 1998 versions. 

* Mecklenburg County's Precinct 77 bordering South Caroling is divided 
between the Twelfth and the Ninth Districts to provide & narrow “land 
bridge” between the eastern and westem portions of the Ninth Districe. This 

   



      MAY 38 2086 11:31 AM FR T012122132852+704 
es == Poke CD kd OSA 2% 

15 

As the Twelfth District continues its journey north out 
of Mecklenburg into Iredell County, it narrows fo a mere 
precinct ~as it does frequently in other areas of the district in 
order to prevent including concentrations of white voters. Upon 
reaching Statesville, it juts west to include two precincts with 

high African-American concentrations. Then its path meanders 

cast into Rowen County, where it snakes to the south to pick up 
concentrations of Africen-Amencans in Salisbury.?! Next, the 
Twelfth District moves north into Davidson County, where it 

also includes all precincts exceeding 40% in African-American 
population. 

The district then branches into two directions--into 
Forsyth County and inte Guilford County. The boundaries of 
the Twelfth District in Forsyth County arc almost perfectly 
tailored to maximize its minority population. (See Ex. 106.) 

The district court observed that “[w]here Forsyth County was 
split, 72.9 percent of the total population of Forsyth County 

allocated to District 12 is African-American, while only 11.1 
percent of its total populauon assigned to neighboring District 
5S 1s African-American.” (Appellants’ J.S. App. at 12a) In 
Forsyth County only two preciocts with African-American 

populations less than 40% of the total population were included 
in the Twelfth District. Those two precincts comprise part of 
the Twelfth District’s land bridge into Forsyth Coumty.® 

  

“land bridge" prevent the Twelfth District from curing the Nioth District 
in ha!f and thereby making it non-contiguous, 

*! Plalntiff R.O, Everstt, a Salisbury resident, tastified in minute detail as 
10 how tha town hed been divided akmg mein! Imes. (Tt. at 80-100.) 

= Hamilton Horton, who represents Forsyth County Jn the Nocth Caroline 
Senste, egiified thet the Twelfth Dixtriet’s bounderice reflected its racial 
predominance m that area by splifting Winston-Salem along racial Tmes, 
goung thet the mostly white and Democrate Salem College community was 
bypassed to reach African-American areas. (See Tr. at 32-47). 

 



   
   30 20880 

IRR WE VE EE BT RR bY id 

Viva} AM FR TO 12122 
KBGD&T PA 

16 

Similarly, the branch of the district shooting into Guilford 
County also includes virtually all precincts in that county with 
an African-American population in excess of 40%. 

As the district court found, “where cities and coumties 

are split between the Twelfth District and neighbonng distnets, 
the splits invariably occur along racial, rather than political, 
lincs - the parts of the divided cities and counties having a 
higher proportion of African-Americans are always included in 
the Twelfth.” (Jd at2Sa.) This observation by the district court 
1s truc whether measuring voting performance or party 
registration. As Dr. Weber testified, his enalysis of voting 
performance was “very consistent” with a registration analysis. 
(Tr. at 240.) 

This can be quickly confirmed by a comparison of the 
racial percentage map of the Twelfth District, Exhibit 106, and 
the voting results map of the Twelfth Disuict for the Court of 
Appeals race.® (See Ex. 253.) There is some correlation 
between party and boundaries of the Twelfth District; but this 

cormrelgtion pales mn comparison ta the precision match between 
the boundaries of the Twelfth District and the predominately 
African-American precincts. In mixed motive cases, a line 
which comresponds more precisely 10 racial demographic data 
than partisan demographic datz is important evidence of a 

predominantly race-based district. See Bush v. Vera, S17 U.S. 
952, 970-75 (1996). 

Exhibit 106 and scores of similar maps reviewed by the 
district court emphatically support its finding that race was the 
predominant factor in the creation of the Twelfth District. They 
show exactly why 75% of the district’s population is pulled 
from the extremes of the district, why the district meanders as 
  

* According ta Gerry Cohen. tha primary draftsman for both the 1992 xnd 
1997 plans, the 1988 Conrt of Appeals race wes loaded onto the redistricting 
courputer im order to be an indicator of generic party voling strength. (See 
Coben Dep. at 49.) 

 



    

MAY 32 20880 11 31 CN ENS ba nous lL FA 

17 

it does, and why it narrows to the width of a single precinct in 
numerous places. 

As the district court found, Dr. Weber “showed time and 
again how race tnunped party affiliation in the construction of 
the Twelfth District and how political explanations urerly 
failed 10 explain the composition of the district.” (Appellants’ 
1.S. App. at 26a (citing Tr. at 162-63, 204-05, 221, 251, 262, 
288). 

Moreover, as Dr. Weber testified, and as was 
demonstrated by Congressman Watt’s comfortable re-election 
under the State’s 1998 redigtricting plan, a 2alid Democratic 
performance district can be created without the contortions 

contained in the Twelfth District. ™ (See Tr. at 205, 220-21.) 

  

¥ The distict conrt 2I3o had the beneflt of hundreds of otter maps and 
other exhibits pnmarity detailing breakdowns of all the mecsurements of 

party performance es recorded in the State's redistricting computer 
according to precinct, county, and district, While the Republican victory 
maps In the Appellants’ appendix are accurate, they are misleadingly 
designed. They do not show the corresponding Republican victories wiAIn 
the boundaries of the Twelfth District, but only the victories In the 

immediate precincts outside. Nar do they show relative levels of party 
SUppON. (See Appellants” JS. App. 2r 2138-212} 

5 Appellant criticize the district court for falling w give proper deferonce 
to the Geperal Assembly becruse it notod that “a much more compacr, 

solidly Democratic Twelfth District could have been created” (AppoWants’ 
1.S. at 180.21.) However, the Appellants mischarncterize the language and 
logic of the district court ac saying that because such a district could have 
been created, it should have been created. (See id.) In fact, the diggrct court 
was nat dictating any choice to the General Assembly by making this and 

similar observations. Instead, it wag atempting to determme afier the fact 
whether a racial or political motive had predommated. The district court 
properly considered relevant the fact that the General Assembly did nox 
conform to standard procedures and gurdelmes usually anployed when 

drawing lines for political reasons, but retier drew a district whose shape 
and demographic breakdowns conform to perterns usually found when race 
is the predominant motive, 

    

 



11:32 AM FR TO 12322132852 yv 784 Poi as 
Gy del Sr AL '® WBGD&T PA 2d 25 

  

18 

Approximately 95% of North Carolina African- 
Americans are loyal Demoarats, Consequently, the State’s 
effort to set the Twelfth District’s African-American population 
at just under 50% resulted in making the distnct so 
overwhelmingly Democratic that it carmot be explained by 
partisan purposes.” Rather, it was designed to ensure thet the 
vast majanty of those voting in the Democmntc primary would 

be African-American and ww make surc that an African- 
American Democratic nominee would win the seat. 

B. The Expert Testimony Supported the Finding 
that Rage Predominated ig the Formation of 
the Twelfth District, 

Dr, Weber is pg nationally recognized expert in 
redistricting Who has been involved in nearly all the major 
racial gerrymandering cases in the 1990s, as well as numerous 
other redistricting cases. He also has extensive experience 
assisting legislators in drawing redistricting plans. In a futile 
effart to disparage his persuasive testimony in this case, 
Appellants have made several misstatements to the Court. 

First, they claim that the district court had followed Dr. 
Waber's footsteps in not cansidering voter perfarmance data. 
However, as Dr. Weber testified extensively, he gnaly2ed 

voting performance and the results were “very consistent” with 
a registration analysis. (Tr. a1 240.) 

  

% The dismiet Is also electorally too safe 10 be explained as  Democratc 
political gerrymander, (See Tr. 2 16163.) Democmtic candidates for other 
electrons conducted withim the boundaries of the Twelfth District receive 
voting percentages of 65% or higher. (See Tr. ar 162.) The election results 

coptained In Dr. Weber's analysis are considerably above the 50% threshold 
used to determine whether a district provides a safe sear, (See Tr. at 162), 
and they reflect a waste of some Democratic votes in order 10 achieve 2 
racial poal. 

    

 



MAY 38 208686 11 132 AM FR 
UD 2370 Ld 08 FAX "® WBGD&T PA 

19 

Second, Appellants incorrectly state that the district 
court, like Dr. Weber, “based its conclusion on ag examination 
of a few select precincts along the district's borders, rather than 
all of them,” (Appellants J.S. at 20.) In fact, Dr. Weber 
analyzed every precinct in all six counties of the Twelfth 
District. (See Weber Decl, tbl.S, Ex. 47.) 

Third, Appellants insinuate that the only basis of Dr. 
Weber's opinion that race predominated was his incorrect 
assumption that the Stare’s computer program had no political 
data, as was the case for similar softwere in Louisiana. 

(Appellants’ 1.S. at 10 n.13.) However, Dr. Weber’s opinion 

that race predorainated was primarily based on the demographic 
Yacts of the Twelfth Disoict--not his belief as to what was on 
the Swate’s computer. Also, before trial, Dr. Weber obtained the 
correct information concerning the State’s computer data and 
took this daw into account when he testified. (See Tr. at 261.) 

Fourth, Appellants contend that when Dr. Peterson used 
Dr. Weber's methodology for analyzing the split counties 
gccording to partisan as well as racial date, this analysis 
“established equally conclusively that Democratic performance 
dictated the splittmng of counties gnd towns in both Districts 12 
and 1.” (Appellams’ JS. at 10 n.13.) To the contrary, Dr. 
Weber noted thar the racial differences in this daa were 
significantly greater than the political differences. (See Tr. at 
265-66.) This was also admitted by Appellants’ expert, Dr. 

Peterson, on cross-examination. (See Tr. at 507-08.) 
Finally, Appellants refer 10 Dr. Weber as having an 

“ingrained personal bias,” (Appellants’ I.S. at 10 n.13), but 
state that Dr. Peterson is “an unbiased statistical expert.” (Jd 
at 21.) In any event, it is not the function of this Court to 

  

? Ironically, Dr. Peterson was compenagted 2 a mec of $335.00 ax hour, 
which was over twice as much #4 what Dr. Weberthe alleged “hired gun™.- 
charged far his time. 

  

     



MAY 38 2888 11:32 AM FR 
Aas Adah FURAN I BIS WplLU&l FA 

20 

determine which expert witness was more ‘“blased” or 
“credible.” That was the factfinding function of the district 
court, which found Dr. Weber's testimony to be convincing. 

The district court also recognized that Dr. Weber had 
“presented a convincing critique of the methodology” used by 
Dr. Peterson. As it noted: 

Dr. Weber characterized Dr. Peterson's boundary 
segment analysis as non-taditionsl, creating 
“erroneous” results by “ignoring the core™ of each 
district in question. In summary, Dr. Weber found 
thar Dr. Peterson's analysis and report “has not 

been appropriately done,” and was therefore 
“unreliable” 2nd not relevant. 

(Appellants’ J.S. App. at 27a (citations omitted).) 
Dr. Peterson's rejected analysis—the so-called “segment 

analysis'--was unprecedented. Not anly was he unaware of any 
application of this analysis to any other political district, (see 
Tr. at 508), but his “segment analysis” had not been presented 
at any academic institution or published in any scholarly joumal 
for peer review. (Tr. 1 509.) Where the analysis had used a 
number of instances of faulty data—such as data indicating there 
were over twice as many African-American registered voters as 

Afnican-Americans residents of a precinct~Dr. Peterson made 
no attempt {a correct that data. (See Tr. at 512.) 

Upon careful review of Dr. Peterson’s work, it was clear 

he had given na consideration to the “core” of the district. 

Thus, it was irelevant to his “segment analysis” whether or not 
inner precincts in the Twelfth Dismict—~precinets not directly on 
the boundary--were 100% white, 100% African-Amencan, 

100% Democrat or 100% Republican. (See Peterson Dep. at 
70.) Nor did he attempt to take into account the larger scale 
decisions that went into creating the Twelfth District (See 

   



MAY 

  

    38 2886 
Ww ~ FRY 

11:32 AN 
PER BERR VIES i 

FR TO 12122132852, 784 
AN IURI IIIT WblbD&!l FA 

1] 

Peterson Dep. at 63.) Thus, he paid no attention to whether or 
not the precinct segments he considered involved rural 
connector precincts or urban care precincts, of whether the 
General Assembly chose to follow a county boundary in certain 
areas. (See Tr. mt 511.) In his “segment analysis™ he 
arbitrarily discounted gpproximately B0% of the total border 
precincts which he deemed “convergent.” (See Tr. at 490.) 
Moreover, of the segments he did consider, each was given 
equal weight regardless of population or the relative differences 
in their respective populations.” Instead of counting people, he 
counted segments and ignored the circumstance that a long land 
bridge had been constructed to connect large concentrations of 
Afncan-Americans in Mecklenburg County with similar 
concentrations in Farsyth and Guilford Counties * 

These and many more flaws in Dr. Peterson's “segment 
analysis” turned his study imo a meaningless mathematical 
exercise unrelated to the demographic realities of the Twelfth 
District. This exercise does not focus on the areas where racial 
gerrymandering was possible to see if it in fact occurred 
Instead, it submerged these probative precincts in a sen of 
irrelevant rural corridor precincts Where there was no 

  

¥ In rejecting Dr. Peterson's analysis, the district court properly fallowsd 
the guidance given by this Court. See Bush v, Vera S17 US. at 372 a} 
(criticizing the dissent for igaoring “the necessity of determining whether 
race predominated in the redistiricters’ actions in lipht of what they had to 
work with"), 

¥ For example. with respect to one boundary segment, between High Point 
Precinco 1 and 4, Dr. Pererson observed thal seven A frican-Amernicans out 
of a tow! registered voter population of 2,114 on the outside was g higher 
proporuon than four out of 1, 212 on the inside. This trivial differeacs, less 
then .01%, Was used as evidence counting against the “racial hypothesis,” 
(See Petarson Dep. at 55-60.) 

* Prior to the creation in 1992 of the racially garrymandered Twelfth 
District. no parts of Mecklenburg and Guilfard counties had baen 
combined in a congressional district smee 1793. 

 



  

MAY. 38 2880 11:33 AM FR 
[RVR Py GROEN NDUUSL aA 

22 

opportunity to racially gerrrymander. Moreover, even if the 
district court had accepted ar face value Dy. Peterson’s 
testimony, the gist of his testimony was that he was unable to 
determine whether race or party predominated over the other. 
(Tr. at 487-88.) These admittedly inconclusive results lack 
evidentiary value. 

C. Direct Evidencs Produced ex Trial Confions the 
Teraheliing Cireumnsianiial Bvidence that the Tuglih Dimer ts Bact N ered 

Appellees’ case is not purely circumstantial ag 
Appellants and Appellant-Intervenors have psserted to the 
Court in their Questions Prasented., Many contemporaneous 
statements in the legislative record contradict Appellants’ post 
hoc retionalizations. Mareover, three leading legislators who 
were members of the General Assembly when the 1997 Plan 
was cnacted testified specifically that race had been the 
predominant factor in its creation. Senator Hamilton Horton, 
who represented Forsyth County, testified thar this County and 
its chief city, Winston-Salem, were split elong racial lines, and 
that the Twelfth District was created predominately with a 
racial motive. (See Appellants’ App. at Sa) Representative 
Wood, who was the Speaker pro tem. of the House, testified 
that “the 1997 Plan divided High Point and Guilford county 
along racial lines for a predominantly racial motive.” (Jd. at 
6a.) Representative John Weatherly also testified thar the 
Tweltth District was drawn for predominantly racial reasone. 
(See id) 

The “smoking gun" e-mail from Gerry Cohen to 
Senators Cooper and Winner was also unportamt direct 
evidence. It referred to moving the “Greensboro Black 
Community™ into the Twelfth District from a prior plan that did 
not include Greensboro citizens and the resulting need to “take 

 



MAY 

  

   38 2080 
TRAPS THRE br VET Sh Th '® 

11:32 AM FR 
WBGD&T Pa 

23 

[a]bour 60,000 out of the 12%" (Jd. a1 8a.) See also full text 
Supra note 11. 

The district court properly found this e-mai) 
demonstrated that the State “had evolved a methodology for 
segregating voters by race, and that they had applied this 
method to District 12.” (Appellants’ J.S. App. 27a) The 
district court also found that the e-mail’s discussion of plans to 
“improve” the First Distdct by “boosting] the Minodty 
Percentage” of that district was relevant “cvidonce of the means 
by which the 1997 Plan's racial gerrymandering could be 
achreved with scientific precision (Appellants’ J.S. App. at 
28a) 

As the district court percaived, some of the tastimony 
of the State’s witnesses lacked credibility. Far example, the 
court below doubted the claim by the grare’s Primary witnesses, 
Senator Cooper and Representative McMehan, thet there had 
betn no specific racial mrget for the Twelfth District 2 Indeed, 
the record is replete with indications that the State was 
attempting to keep the African-American percentage in the 
Twelfth District close to, but not over. 50% in order to make 

    

>! This e-mail seems readily susceptible to the fnterpremteion thar 60,000 
Affican-Americans had just been moved into the dsserict md e 
corresponding numbey of whiles needed to be taken our 

** In foomots 8 of the lower court's opinion, it mated thar: “Senator Cooper 
claimed thet the final percentage of District 12 was shasr happensmnce. 
The explicit discussion of precise percentages in the e-mail balies thie 
charactenzation.” (Appellants’ J.S. App. At 28a) Also, tha digmict court 
found thar “exact racial percentages were used when constructing district.” 
(/d.) This was also shown bry Representative McMehan's staternent 10 his 
coljeagues that “we have done our best--our dead level best—to draw two 
Districts that are falr racially and do have one of them the majority of the 
population and the other one over 46%, snd that's the very bect we could 
do ont both sides, and we looked ac zhis very, very closely.” Houss Floor 
Statement of Rep. McMahan, March 26, 1997 97C - 28F - 4F(1), (Ex. 100). 

  

 



2000 11:33 AM FR a | VIN) Deo Lalas EAL '® WBGD&T FA » @ 31 

  

24 

the district immume to constitutional challenge.” The district court concluded that Senatar Cooper’s allusion to the need for 
“racial and partisan balance” in the legislative record also bolstered. plaintiffs’ claim that race predominated in the creation of District 12. (Appellants’ J.S. App. at 273.) The 
district court specifically found thar Senator Cooper’s “'Cantention that although he used the term ‘partisan balance’ to refer to the maintenance of a six-gix Dama crat-Republican split 
in the congressional delegation, he did not mean the term 
‘racial balance’ 10 refer to the maintenance of a then ten-two 
balance between whites and African~Americans is simply not 

  

¥ Senator Cooper said: 

[ 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 wis because the 12% Distt was mejarity-minorty and it said that You cannot Use mca 2s the 
predominant factor in drawing the disteicen, 

Well guess what! The 12* District, under this plag, is not 
majority-minority. Therefore it & my opinion and the 
opinion of many lawyers that the test outlined ia Shaw v, 
Hunr will not even be tnggered because it is nota majonty- misority district and you wont even look at the shape of the district in considering whether or nos it is coostitutional 
That makes am eminent gmount of sense because what is the cutoff point for when you have the pigger of when a dirtrict looks ugly”? Ithink that the court will not even usa the shape tect, if you will, on the 12° District becmues ft is not majority minonly. It is strong minority influence, and I believe thar a 
minority would have an excellent change of being elected under 
the 12™ District. 

Maer. 27, 1997 Floor Debate of HB $86 in Senam Chamber, 97C-28F- 4F (2) at 5-6 (anphasis added) (Ex. 100). 

 



credible.” (Jd.) 

IO. THE TWELFTH DISTRICT FAILS THE STRICT 
SCRUTINY TEST. 

Appellant-Intervenots now contend that “The District 
Court Erred by Failing to Determina Whether the State Had a 
Compelling Justification for Creating & Narrowly Tailored 
District 12.” (Appellant-Intervenar’s J.S. at 22.) This 
argument 1s frivolous. 

Ncither Appellants nor Appellent-Imervenors presented 
any factual or legal contention that a compelling government 

interest supported the creation of the Twelfth District. Also, 
the Appellants made quite clear at the opening of trial that they 
were not claiming that the Twelfth District was supported by a 
compelling state interest. Specifically, the Appellants’ lead 
counsel--with no dissent from Appellant-Intervenors’ attorneys 
situng at her side--stated, “we're not arguing compelling state 
interest” with regard to the Twelfth District. (Tr. at 30-31.) 
Counsel for the Appellant-Intervenors only briefly addressed 
the Twelfth District in his closing argument. He stated flanly 
that “Ms. Smiley [Appellants’ counsel] covered our position.” 
(Tx. et 595.) Further he stated that “once we understood the 

law after Shaw v. Hunr, that there couldn't be—there was no 

basis for 2 majonty-minority district in the 12%" (Tr. at 596.) 
Thus, the district court correctly found that “no evidence of a 
compelling state interest in wilizing race to create the new 12 
District has been presented and even if such interest did exist, 
the 12" District is not narrowly tailored and therefore cannot 
survive the prescribed ‘strict scrutiny.” (Appellaats’ J.A. App. 
ar 25a.) 

  

* The cvesiveness and laak of candor of Appeliams’ wimasses was both 
impesching evidence and substantive evidence against Appellants’ claim. 
OF McQueency v, Wiimington Truss Co, 779 F24 916 (3% Cir. 1985). 

     



  

   

  

MAY 30 2088 11:34 AM FR TO 12122132852,784 P.35/ fi: 
WI dd YUE Ah, UY ATPAN '® WBLU&L PA 33 

26 

III. APPELLANTS' CLAIM PRECLUSION 
ARGUMENT LACKS MERIT. 

Appellants rely for preclusion on an order entered on 
September 12, 1997, in the Shaw litigation Which allowed use 
of the 1997 Plan ag a remedy for the violation of the rights of 
those Shaw plaintiffs who were registered voters in the 1992 
Plan’s Twelfth District. The terms of the order make clear that 
it did not intend to adjudicate challenges of the constitutionality 

of the 1997 Plan made by persans who had not been held to be 
entitled to relief in the Shaw litigation. Thus, to preclude 
Appelleas’ claim would give the order an sffect never intended 
by the Shaw court. 

Furthermore, claim preclusion requires (1) a final 
judgment on the merits, (2) the same claim or claims, (3) and 
the same parties. See Federated Dept. Stores, Inc. v. Moire, 
452 U.S. 394, 398 (1981); Cromwell v. County of Sac, 94 U.S. 
351 (1876). Here none is present. The language of the 
Memorandum Opuron emtered by the Shaw court on September 
12, 1997, leaves no doubt that the Court was not rendering a 
“final judgment” as to the constitutionality of the 1997 Plan's 
Twelfth District. Instead, it only decided that the Twelfth 
District was an adequate remedy for violating the Equal 
Protection rights of those Shaw plaintiffs who resided in the 
1992 Plen’s Twelfth District. Since the 1997 Plan removed 

those persons and their entire county from the Twelfth Distnict, 
their claim is quite different from challenges of the 1997 Plan's 
Twelfth District by registered voters in that District. The 
partcs also are not the same. CY. U.S v. Hays, 515 U.S. 737 

(1995). Appellees JH. Froelich and R.O. Everett, who live in 
the 1997 Plan's Twelfth District, were not parties to the Shaw 
litiganon; and therefore were in no way precluded by the Shaw 
panel's order of September 12, 1997. 

In a futile effort to overcome this last defect, Appellants 

  

  

 



MAY 38 2888 11:34 AM FR 
a YE A “vg WBGD&T PA 

27 

invoke a theory of “virtual representation.” They contend that 
plaintiffs Froelich and R.O. Everett had been “virtually 
represented” by artarmey Robinson O. Everett, who is counsel 
of record in the Cromartie case and had been 2 plaintiff in the 
Shaw litigation. This contention overextends virtual 
representation. See, e.g, Klugh v. United Stares, 818 F.2d 294 
(4" Cir. 1987). Alo, it ignores the circumstance that, under the 
holding in Shaw v. Hime, 517 U.S. at 504, Robinson Everett 
lacked standing to be a plaintiff in that case because he did not 
reside within the 1992 Plen’s Twelfth District. Thus, he could 
not have “represented” the interests of Froelich and of his 
cousin, R.O. Everett, even had he sought to do so. The Court 
should reject the Appellants’ defease of claim preclusion as has 
every judge who has considered it. 

IV. THE DISTRICT COURT ACTED WELL 
WITHIN ITS DISCRETION IN PROHIBITING 
FURTHER USE OF THE TWELFTH DISTRICT 

Appellants and Appellant-Intervenors contend that the 
lower court abused its discretion by prohibiting use of the 1997 
Plan’s Twelfth District in an election after it had been held 
ugconstititianal. Appellant-Intervenors cite some cases in 
which district courts exercised their discretion to delay 
imposing 8 remedy for an upcoming election. (Appellant- 
Intervenors IS. at 25-27.) However, they have not cited—and 
Appellees cannot find—any case where a district court had 
abused its discretion by enjoining the use of an unconstintional 
redistricting or reapportionment plan. 

“[Olnce a State’s legislative appartionment scheme had 
been found 10 be unconstitutional, it would be the unusual case 
in which & Court would be justified in not taking appropriate 
action to insure that no further elections are conducted under 
the invalid plan.” Reynolds v. Sima, 377 U.S. 533, 585 (1964). 
The district court was well aware that this was not “the unusual  



  

MAY 38 2088 11:34 AM FR 

  

[RYT IPS VIPER, IRV I. I} YDWUIRL IA 

28 

case.” Jd. Familiar with the history underlying this case, the 
district court recognized that Appellants had consistently 
refused over many years to epact 3 race-neutral redistricting 
plan. If any “equitable considerations” were present, they 
pointed toward granting immediate relief to the Appellees, 
rather than to delay. The district court was well aware that 
Appellants’ did not have clean hands because they had used 
posi hoc rationalizations to obscure the true facts, had offered 
cxplananions that were “not credible,” (Appellants’ J.S. App. 
ar 27a), and had been steadfastly “defending the indefensible.” 
Hays v. Louisiana, 936 F.Supp. 360, 372 (W.D. La. 1996). 

Had the Appellants done the right thing and drawn a 
constitutional plan in 1993 after the Court’s first decision, they 
would not be in the situation of which they now complain. 
However, as in Louisiana, Appellants have reacted to the 
Cown’s decisions, not by repudiating racial gerrymandering, bur 
by adopuing a new plan with a “physically modified but 
conceptually indistinguishable ‘new’ [district], again violating 
historical politcal subdivisions and ignoring other traditional 
redistricting criteria” /d at 372. Appellants’ shameless appeal 
to the lateness of the decade deserves a firm rebuke from this 
Court.” 

The district court knew from the 1998 experience that 
the State has the cepacity to organize and conduct a special 
Congressional primary in the Fall if it chooses to da so. 
Moreover, the district court was undoubtedly aware thet many 
stares hold their entire primary and general election cycle in the 
Fall, and that there is a “typical post-Labor Day focus” to mast 
politcal campaigns. See Vara v Bush, 933 F.Supp. 1341, 1351 

    

15 
In clofing argument Appellants’ lead counsel accused Appellees of 

laches, This evoked from Judge Boyle the observation that “[Y]ou amm‘t 
ake the argument that the decade has run when you have been fighting this 
the entire Jas eight yearr.” (Tr. ar 586.) 

 



  

MAY 38 20088 11:34 AM FR 
av wom ww ULE RN FLL SE SKS § 

29 

(S.D. Tex. 1996). 
The district court was further aware of the danger thar 

if the unconstitutional district were used in the 2000 election, 
the State end the Department of Justice might seek to use iT ag 
a benchmark for the drawing of districts for the year 2002 and 
thereafter. 

Finally, the district court was aware that after three 
elections under a flagrantly gerrymandered Twelfth District ag 
created by the 1992 Plan, the 1998 elections had been 
conducted in a district that adhered much more 10 waditional 
race-neutral principles. Undoubtedly, the district court realized 
that to allow inidal use in the 2000 election of the 
unconstitutional 1997 Plan that has twice been held 
unconstitutional and is clearly more racially gerrymandered than 
the plan used in the 1598 election would be an insult to the 
Equal Protection rights of the Appellees and other registered 
voters of the Twelfth District, would offend fair-minded 
persons, and would enhance distrust of both the electoral 
process and the judicial process. 

Appellants have engaged in legislative and legal 
maneuverd which deserve no reward from the Court. Indeed, if 
the Court allows this meritless appeal to go forward for 
argument in the next Term, Appellants’ tactics of delay provide 
them an outcome--usa of the 1997 Plan--which is entirely at 
odds with the result of the trial which this Court ordered in May 
1899. The Court should make it clear that delaying tactics will 
not succeed in attaining unconstitutional objectives. 

    

* In 1996, In Texas a primary election was set aside and a special electon 
held ir thirteen redrgwm districts in conjunction with the high-tornout 
Presidential election, and a nm-off in these few districts which required it. 
Sec Vera, 933 F.Supp. ar 1351. If that remedy was withim the equitable 
discretion of a district court, surely enjoining im March 2000 the first use of 
the unconstrutional 1997 Plan was within the discretion of the court. 

  

  
  

 



    

MARY 38 2888 11:34 AM FR To: 121221282832, 
Eni “Yhwvliel ra » 

30 

CONCLUSION 

For the gbove steed reasons the Court should grant 
Appellees’ motion far summary affirmance of the decizion 
below, or in the alternative dismissal of the appeal. 

Raspectfully submitted, 

MARTIN B. McGEE ROBINSON O. EVERETT 
WILLIAMS, BOGER SETH A. NEYHART 
GRADY, DAVIS & TUTTLE EVERETT & EVERETT 
708 McLain Rd. P.O. Box 586 
Kannapolis, NC 2808] Durham, NC 27702 
(704) 932-3157 (919) 682-3651 

DOUGLAS E. MARKHAM 
P.O. Box 130923 
Heoustan, TX 77219-0923 
(713) 65S - 8700 

‘Counsel of Record 

May 25, 2000 Attorneys for Appellees 

 



x% JOB STATUS REP IAY 30 20 9:54 AM PAGE. 01 

NAACP LEGAL DEFENSE 

JOB #878 

DATE IE ; 
001 5/30 E88 TO PROV MODE = MIN/SEC PGS STATUS 

i OTN 212 995 4027 EC—-% 00 2 rool OK £3 

003 hay ult OE 2125950810 G3—-S 00’ 35° in 

308 9:39A S. BRIGHT EC—S 00 2 OK 

004 9: 40. . re Es ak 00” 2 IC OK 

005 9:41, a or 48 A Nu Og : OK 

006 ey BP EC~—-§, 00720" Of OK 

- Jd a8 nn 126629408 EC——S win 

oy 9:43A K. DOYLE EC-+5 irs OK 

Oka 
5 ; i ou < K 

EC——S 00°10" 

010 3s 2 wil 2 DO’ 1f OK 

h ’ EC —5 rr rr FER wide 

M. OLIVE CR A Bon OF, 
i : : pe OK 

/ 
G3—— 3 ~ 

G35 OK 
OK 
OK 
OK 

OK 
OK 

J 

009 : 4 20: 384. WE < 5. V2 LE 4279. EC——8 

06 EC--S 
7 EC=8 

EC—-5 
EC--8 

+2128547946 EC——S 

> 1
S
 

BO 
W
B
 

I 

Jl
 

oO
 

  

212-995-4027 
Tony Amsterdam 212-595-0810 
Vivian Berger 

Steve Bright 
404-688-9440 

John Blume 
803-765-1143 

Dick Burr/Mandy Welch 713-523-3833 

David Cole 
202-662-9408 

Kevin Doyle 
212-780-5649 

Tim Ford 
206-343-3961 

Eric Freedman 
212-665-2714 

Ruth Friedman 
202-638-4279 

Steve Hawkins 
202-387-5590 

Jim Liebman 
212-854-7946 

Linda McGrew 
202-628-4094 

Mark Olive 
850-224-3331 

David Reiser 
202-291-5583 

Bryan Stevenson 
334-269-1806 

Larry Yackle 
617-353-3077 

Denise Young 
502-322-9706 

Georgia Colleagues 
404-222-9212 

Texas Colleagues 
512-477-2153 

George Kendall 

RE: Orders List 

DATE: May 30, 2000 

1. The Court denied certiorari today in the following four capital cases. 

* Lopez, George Vv. Pennsylvania 99-8396 

* Fierro, Cesar v. Johnson, Dir. 99-8740 

* Moore, Dewey v. Gibson, Warden 09-8812 

* McKinney, Randy v. Idaho 99-8905 

~The next orders list will be announced on Monday, June 5.