Bond v. Floyd Jurisdictional Statement and Motion to Advance

    No. 99-1865 
  
  

IN THE 

Supreme Court of the United States 
  

ALFRED SMALLWOOD, et al., 

Appellants, 

Vv. 

MARTIN CROMARTIE, ef al., * 

: Appellees. 
  

On Appeal from the United States District Court 
for the Eastern District of North Carolina 
  

BRIEF OF THE SMALLWOOD APPELLANTS 
  

ELAINE R. JONES Topp A. Cox* 
DIRECTOR-COUNSEL NAACP LEGAL DEFENSE & 

EDUCATIONAL FUND, INC. 

NORMAN J. CHACHKIN 1444 Eye Street, N.W. 
JACQUELINE A. BERRIEN 10th Floor 
NAACP LEGAL DEFENSE & Washington, D.C. 20005 

EDUCATIONAL FUND, INC. (202) 682-1300 

99 Hudson Street 
_ Suite 1600 

: New York, NY 10013 

(212) 965-2200 

ADAM STEIN 

Ferguson, Stein, Wallas, Adkins, 

Gresham & Sumter, P.A. 

312 West Franklin Street 

Chapel Hill, NC 27516 
(919) 933-5300 

*Counsel of Record 

Attorneys for Smallwood Appellants 
  

  

PRESS OF BYRON S. ADAMS 4+ WASHINGTON, D.C. + 1-800-347-8208  





  

  

  

i 

QUESTIONS PRESENTED 

Is a state congressional district subject to strict scrutiny 

under the Equal Protection Clause simply because it is 

slightly irregular in shape and contains a higher 

proportion of minority voters than adjacent districts, 

when (a) it is not a majority-minority district, (b) it 
complies with all of the race-neutral districting criteria 

the state adopted to govern the design of the entire 

apportionment plan, and (c) there is neither direct nor 
compelling evidence that race was the predominant 
factor in its design? 

In a challenge to a state congressional district, brought 

under the jurisprudence established by this Court in 

Shaw v. Reno and its progeny, is an inference drawn 
from the challenged district’s shape and racial 

demographics, standing alone, sufficient to support a 

finding for the plaintiffs on the contested issue of the 

predominance of racial motives in the district’s design, 

when it is directly contradicted by the testimony of the 

legislators who drew the district and evidence that the 

district conforms with the state’s articulated 

redistricting criteria? 

Following a finding of unconstitutionality in a challenge 

to a state congressional district, brought under the 

jurisprudence established by this Court in Shaw v. Reno 

and its progeny, is it an abuse of discretion for a district 

court to order the state to conduct redistricting 

immediately when redistricting would cause disruption 

to ongoing election processes and when redistricting 

will occur anew following the imminent release of the 

2000 Census data?  



  

ii 

PARTIES TO THE PROCEEDINGS 

Actual parties to the proceeding in the United States 

District Court were: 

(1) James B. Hunt, Jr., in his capacity as Governor 

of the State of North Carolina, Dennis Wicker in his official 

capacity as Lieutenant Governor of the State of North Carolina, 

Harold Brubaker in his official capacity as Speaker of the North 
Carolina House of Representatives, Elaine Marshall in her 

official capacity as Secretary of the State of North Carolina, and 
Larry Leake, S. Katherine Burnette, Faiger Blackwell, Dorothy 

Presser and June Youngblood in their capacity as the North 

Carolina State Board of Elections, defendants, appellants 
herein, 

2) Alfred Smallwood, David Moore, William M. 

Hodges, Robert L. Davis, Jr., Jan Valder, Barney Offerman, 

Virginia Newell, Charles Lambeth and George Simkins, 

defendant-intervenors, appellant-intervenors herein, 

(3) Martin Cromartie, Thomas Chandler Muse, R.O. 

Everett, J. H. Froelich, James Ronald Linville, Susan Hardaway, 

Robert Weaver and Joel K. Bourne, plaintiffs, appellees herein. 

    

 



iil 

TABLE OF CONTENTS 

JRISDICTION o.oo Sian at ns wan 

CONSTITUTIONAL AND STATUTORY 
PROVISIONSINVOLVED .i.2..  .... 50 

A. The Challenge to the Current Plan 

B. Appeal of the Summary Judgment 
Decision... or 8, car. 

D. The District Court Opinion and 
theCurrent Appeal =... . 0... 0. 

SUMMARY OFARGUMENT -.. ..... 0...  



  

IIL. 

III. 

v 

Page 

The Court Below Erred by Holding that 

Race Predominated in the Creation of 

the Twelfth Congressional District ............ 18 

A. The court erred by holding in effect 

that race-consciousness triggers 

“strictscrutiny’™ cco via san 19 

B. The court erred by not giving proper 

weight to the political considerations 
that led to the creation of the 

Twelfth District 

The District Court Erred by Failing to Assess 

Whether the District was Narrowly Tailored to 

Serve a Compelling Justification . . ............ 28 

The District Court Erred in Ordering Redistricting 

on the Eve of the Post-2000 Census Redistricting 

Cycle 

   



TABLE OF AUTHORITIES 

CASES 

Abrams v. Johnson, 521 U.S. 74 (1997) 

Arlington Heights v. Metropolitan Housing Development, 
Corp., 429 U.S. 252 (1977) 

Bush v. Vera, 517 U.S. 952 (1996) 

Cardona v. Oakland Unified School District, 
785 F. Supp. 837 (N.D. Cal. 1992) 

Chavis v. Whitcomb, 396 U.S. 1064 (1970) 

Chen v. City of Houston, 206 F.3d 502 (5th Cir. 2000) . . 

Clark v. Calhoun County, w 
88 F. 3d. 1393 (Sth Cir. 1996) 21,3 

Cosner v. Dalton, 522 F. Supp. 350 (E.D. Va. 1981)... 3 

Cromartie v. Hunt, 1998 U.S. Dist. LEXIS 7767 
EDNC Apr. 1449980) Fo 0 nh 

DeWitt v. Wilson, 856 F. Supp. 1409 (E.D. Cal. 1994), 
afd, SISUS. 1170.(1998) ini 21.25 

Diaz v. Silver, 932 F. Supp. 462 (ED.N.Y. 1996) 

Dickinson v. Indiana State Election Bd., 
933 F.2d 497 (7th Cir. 1991)  



  

vi 

Page 

Elyv.Kiahr, 403 U.S. 1081971)... .... .. . cu 32,33,34 

Gingles v. Edmisten, 590 F. Supp. 345 (E.D.N.C. 1984), 
aff'd in part and rev'd in part, sub. nom., 
Thornburg v. Gingles, 478 U.S. 30 (1986) . . .. .. 11 

Hunt v. Cromartie, 526 U.S. 541 (1999) .......... passim 

Jenkins v. Red Clay Consolidated School District Bd. of Ed., 
48341103 3rd Cir, 1993), /.o ... oon io 20 

Johnson v. De Grandy, 512 U.S. 997 (1994) ......... 29 

King v. State Board of Elections, 

5221.8. 108701998) . ii... ln, 21 

Lawyer v. Department of Justice, 
2108. 567 (199)... ova 21,25 

Maryland Citizens for a Representative Gen. Assembly v. 

Governor of Maryland, 
420 F.2d 606 (4thCir. 1970) ............. 33, 34 

Maxwell v. Foster, 

No. 98-1378 (W.D. La. Nov. 24, 1999) ..... 33,35 

Meeks v. Anderson, 229 F. Supp. 271 (D. Kan. 1964) ... 32 

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

Republican Party of Shelby County v. Dixon, 

4200.8.934 (1976)... .....% .... oes. 32 

N
N
 

A 
A
 

HN
 
S
O
 

D
S
A
 

  
   



  

vii 

Republican Party of Virginia v. Wilder, 
774 F. Supp. 400 (W.D. Va. 1991) 

Reynolds v. Sims, 377 U.S. 533 (1964) apis 31,32 

Scott v. United States, 920 F. Supp. 1248 (M.D. Fla. 1996), a 
aff'd sub. nom., Lawyer v. Department 
of Justice, 521 U.8.567(1997) .... ......0. 23 

Shapiro v. Maryland, 
336F Supp. 1205(D. Md 1972) =... 32 

Shaw v. Hunt, 517 U.S. 899 (1996) ........... passim 

Shaw v. Hunt, No. 92-202-CIV-5-BR 
(E.D.N.C. September 12, 1997) oi. me 4 

Shaw v. Hunt, 861 F. Supp. 408 (E.D.N.C. 1994), ® 
rev'd, 5317 U8. 80001906) © ai 0 

Shaw v. Reno, 509 US. 630(1993) ........... passim 

Shaw v. Reno, 808 F. Supp. 461 BONC 1992)... .. 1 

Sincock v. Roman, 233 F. Supp. 615 (D.Del. 1964)... 32 

Theriot v. Parish of Jefferson, 
185 F3d477(5thCir'1999y .. = oer oo 21 

Thornburg v. Gingles, 478 U.S. 30 (1986). vi ag 11 

United States v. Hays, 515 U.S. 737 (1908) on. i. i. 20  



  

viii 

Page 

Watkins v. Mabus, 502 U.S.954(1991) ............. 32 

Wilson v. Eu, 1 Cal. 4th 707, 823 P.2d 545, 
ACA ROtr 2d 3791002) cai. ov duo i in 21 

White v. Daniel, 909 F.2d 99 (4th Cir. 1990) . ......... 33 

STATUTES & RULES 

22USC 1283.0. Sambal. AL aie LY 2 

BUSCEII... ob oS mia 15,29 

20U0SC 81973c....... HE SURI CORR LE 3 

1997 NC. Sess. Laws Ch. 11. oc 70 v0 oo mn a 1 

   



  

BRIEF OF THE SMALLWOOD APPELLANTS 

Alfred Smallwood, David Moore, William M. Hodges, 
Robert L. Davis, Jr., Jan Valder, Barney Offerman, Virginia 
Newell, Charles Lambeth and George Simkins (“Smallwood 
Appellants”), white and African-American citizens and 
registered voters residing in the North Carolina Congressional 
Districts challenged in this litigation, appeal from the final 
judgment entered by the three-judge United States Distri 
Court for the Eastern District of North Carolina on March 8, 

2000, which declares that the Twelfth Congressional District of 
North Carolina’s 1997 congressional reapportionment plan, 
1997 N.C. Sess. Laws, Ch. 11 (“1997 Remedial Plan”), violates 

the Fourteenth Amendment to the United States Constitution 

and enjoins further elections under that plan. 

OPINIONS BELOW 

The March 7, 2000 opinion of the three-judge district 
court is unreported and appears in the Appendix to the 
Jurisdictional Statement on Behalf of the State of North 
Carolina (“NC. J.S. App.”) at la. The district court’s final 
judgment, entered March 8, 2000, is unreported and appears 
NC. J.S. App. at 71a. Previous decisions of earlier phases of 
this and related litigation are reported at Hunt v. Cromartie, 526 
U.S. 541 (1999); Shaw v. Hunt, 517 U.S. 899 (1996); Shaw v. 
Reno, 509 U.S. 630 (1993); Cromartie v. Hunt, 1998 U.S. Dist. 
LEXIS 7767 (E.D.N.C. Apr. 14, 1998); Shaw v. Hunt, 861 F. 
Supp. 408 (E.D.N.C. 1994); and Shaw v. Reno, 808 F. Supp. 
461 (E.D.N.C. 1992). 

JURISDICTION 

The judgment of the court below was entered on March 
8,2000. The Smallwood Appellants filed their notice of appeal 
to this Court on March 13, 2000. Appendix to the 
Jurisdictional Statement on Behalf of the Smallwood Annellant<  



  

2 

at 1a. The jurisdiction of this Court is invoked under 28 U.S.C. 

$1253. 

CONSTITUTIONAL AND 
STATUTORY PROVISIONS INVOLVED 

This appeal involves the Equal Protection Clause of the 

Fourteenth Amendment, reproduced at NC. J.S. App. at 73a.. 

STATEMENT OF THE CASE 

A. The Challenge to the Current Plan 

This case is a challenge to the 1997 Remedial Plan, 

which is the third congressional redistricting plan enacted by the 

North Carolina General Assembly since the 1990 Census. This 

Court’s ruling in Shaw v. Hunt, 517 U.S. 899 (1996), concerned 

the second congressional redistricting plan enacted by the North 

Carolina legislature following the 1990 Census (“1992 Plan”). 

In Shaw, this Court held that the 1992 Plan was unconstitutional 

because the location and configuration of the Twelfth District 

violated the equal protection rights of some of the plaintiffs in 

the action. Shaw, 517 U.S. at 902. 

On July 3, 1996, following the decision of this Court in 

Shaw v. Hunt, three residents of Tarboro, North Carolina, 

  

"The first post-1990 Census North Carolina congressional 

reapportionment plan, enacted in 1991, contained one majority-African- 

American district that was 55.69 percent African-American in total 

population and 52.18 percent African-American in voting age population. 

This Court discussed the history of the first plan in Shaw v. Reno, 509 U.S. 

630 (1993) and Shaw v. Hunt, 517 U.S. 899 (1996). The second post-1990 

Census reapportionment plan, enacted in 1992, contained two majority- 

African-American districts (the First and Twelfth Congressional Districts), 

but the Twelfth Congressional District was held unconstitutional in Shaw 

v. Hunt. 

    

    
 



  
  

  

3 

Appellees herein, filed the complaint in this action (Cromartie 

v. Hunt), challenging the First District in North Carolina’s 1992 
Plan on the ground that it violated their equal protection rights 
because race predominated in the drawing of the district. A stay 

of that action was entered pending the resolution of the remand 

proceedings in Shaw v. Hunt. 

On July 9, 1996 the same Tarboro residents joined 8 
original Shaw plaintiffs in filing an Amended Complaint in Shaw, 
raising a similar challenge to and asserting the same claims 
against the First Congressional District as they raised in 
Cromartie v. Hunt. On July 11, 1996, the members of the 
Smallwood Appellant group (three voters from the First District 
and six voters from the Twelfth District) sought to intervene in 
the Cromartie suit as defendants.” 

Following this Court’s remand in Shaw v. Hunt, the 
North Carolina General Assembly convened to develop a 
redistricting plan to remedy the constitutional infirmities found 
by this Court. OnMarch 31, 1997, the North Carolina General 
Assembly enacted the 1997 Remedial Plan and submitted it @ 
the three-judge court in Shaw v. Hunt, No. 92-202-CIV-5-BR 
(E.D.N.C.).> The State also submitted the plan for preclearance 
by the United States Department of Justice pursuant to Section 
5 of the Voting Rights Act, 42 U.S.C. § 1973c. On June 9, 
1997, the Department of Justice precleared the plan. See NC. 

  

  

The Smallwood Appellants also participated as intervenors in 
Shaw v. Hunt in the trial court and in this Court, including in the remedial 
proceedings which resulted in the approval of the 1997 Remedial Plan that 
is the subject of the present proceedings in this Court. See infra. p. 4. 

A map of the 1997 Remedial Plan is reproduced at NC. J.S. App. 
at 75a.  



  

4 

J.S. App. at 316a (Shaw v. Hunt, No. 92-202-CIV-5-BR, 

Memorandum Opinion (E.D.N.C. September 12, 1997)). On 

September 12,1997, the three-judge district court in Shaw v. 

Hunt unanimously approved the 1997 Remedial Plan as an 

adequate remedy for the specific constitutional violation found 

by this Court in Shaw v. Hunt. NC. J.S. App. at 312a. The 

three-judge court then dismissed the case after Appellees 

Cromartie and Muse, who were also plaintiffs in Shaw v. Hunt, 

chose not to present their claims that the 1997 Remedial Plan 

was unconstitutional to the Shaw three-judge court. 

The Cromartie three-judge court lifted its stay of 

proceedings on October 17, 1997. On the same day, two of the 

three original plaintiffs, along with four residents of the Twelfth 

District, filed an amended complaint in the Cromartie action, 

challenging the 1997 Remedial Plan as a violation of the Equal 

Protection Clause and still seeking a declaration that the First 

District in the 1992 Plan is unconstitutional. Within the time 

allowed for answering that amended complaint, the Smallwood 

Appellants filed a renewed motion to intervene as defendants. 

On March 31, 1998, the court below heard arguments 

on cross-motions for summary judgment and on the Cromartie 

plaintiffs’ request for preliminary injunction. On April 3, 1998, 

  

‘At the time of this hearing, the district court had not ruled on the 

motions to intervene of the Smallwood Appellants which had then been 

pending for over twenty months, or their renewed motion that had been 

pending for four months. The court issued its permanent injunction and 

granted summary judgment without ruling on these unopposed motions or 

holding a hearing on intervention. In fact, the district court refused to allow 

counsel for the Smallwood Appellants an opportunity to bring the motion 

to intervene before it and denied counsel for the Smallwood Appellants an 

opportunity to speak at the hearing. 

    

  
 



  

5 

the three-judge United States District Court for the Eastern 

District of North Carolina issued an order granting summary 

judgment to plaintiffs, declaring North Carolina’s Twelfth 

Congressional District unconstitutional, permanently enjoining 
elections under the 1997 Remedial Plan, and ordering the State 

of North Carolina to submit a schedule for the Genera 

Assembly to adopt a new redistricting plan and to hold dill 

under that plan.” On April 14, 1998, the district court issued its 

opinion explaining its April 3, 1998 order.’ NC. J.S. App. at 
243a. 

B. Appeal of the Summary Judgment Decision 

This Court noted probable jurisdiction in Hunt v. 

Cromartie on September 29, 1998. Oral arguments were held 

January 20, 1999. On May 18, 1999, this Court unanimously 

  

> Although the court had not yet released an opinion, the State of 
North Carolina moved for a stay of the injunction pending appeal. The 

district court denied this motion. The State then filed an application w, 
this Court for a stay pending appeal, and the Smallwood Appellants fi 
an amici curiae memorandum in this Court in support of the application. 
This Court denied the request for a stay on April 13, 1998, with Justices 
Stevens, Ginsburg, and Breyer dissenting. 

®On May 26, 1998, with their two prior unopposed intervention 
motions still pending, the Smallwood Appellants filed a third motion to 
intervene as defendants in the case. On June 20, 1998, after the deadline 

for filing a timely notice of appeal of the district court’s April 3, 1998 order 
and April 6, 1998 judgment had passed, the district court ruled that the 
Smallwood Appellants were entitled to intervene as of right in this action. 
As the delay in granting the motions to intervene prevented them from fully 
participating as parties in the district court and prevented them from being 
able to exercise their right to appeal, the Smallwood Appellants filed in this 
Court on October 2, 1998 a motion to intervene as Appellants in this case. 
This Court granted the motion on October 19. 1998.  



  

6 

reversed the lower court’s decision and remanded for further 

proceedings. Justice Thomas, in an opinion joined by the Chief 

Justice and Justices O’Connor, Scalia, and Kennedy,” first 

observed that the new Twelfth District was different than the 

original, noting that 

[t]he State’s 1997 plan altered District 12 in several 

respects. By any measure, blacks no longer constitute 

a majority of District 12: blacks now account for 

approximately 47% of the district’s total population, 

43% of its voting age population, and 46% of registered 

voters. . . . The new District 12 splits 6 counties as 

opposed to 10. . . . With these changes, the district 

retains only 41.6% of its previous area. . . and the 

distance between its farthest points has been reduced to 

approximately 95 miles. . . . 

Hunt v. Cromartie, 526 U.S. 541, 544 (1999) (citations 

omitted). 

This Court also noted that, in evaluating a jurisdiction’s 

motivation in creating a particular redistricting plan, a district 

court must engage in an inherently complex and ‘“sensitive 

inquiry into such circumstantial and direct evidence of intent as 

may be available.” Id. at 546 (quoting Arlington Heights v. 

Metropolitan Housing Development Corp., 429 U.S. 252 

(1977)). This Court determined that the district court had failed 

to conduct such an inquiry and had improperly held that there 

were no material facts in dispute. Rather, the Court observed 

that “[t]he legislature’s motivation is itself a factual question” 

  

"Justice Stevens filed an opinion concurring in the judgment, in 
which Justices Souter, Ginsburg, and Breyer joined. 

    

 



  

7 

that was clearly in dispute. Hunt v. Cromartie, 526 U.S. at 549. 

This Court acknowledged that “Appellees offered only 

circumstantial evidence in support of their claim,” including 

maps of the District and statistical and demographic data. Hunt 

v. Cromartie, 526 U.S. at 547. However, this Court pointed to 

evidence that the legislature created the district “with the intent 

to make District 12 a strong Democratic district,” id., ring 

the testimony of two legislative leaders, who testified that th 

district lines are best explained by partisanship. 

In addition, this Court found the testimony of the State’s 

expert political scientist, Dr. David Peterson, probative. Dr. 

Peterson examined racial demographics, party registration and 

election results from the precincts within the district and those 

surrounding it. He found a strong correlation between the racial 

composition of the precincts and party preference, such that in 

precincts with large proportions of African-Americans, voters 

tend to vote for Democrats at a high rate and in precincts with 

low proportions of African-Americans, voters tend to support 

Democratic candidates at a significantly lower rate. Based upo 

Peterson’s testimony, this Court reasoned that “the data tend 

to support both a political and racial hypothesis,” id. at 550, as 

well as “an inference that the General Assembly did no more 

than create a district of strong partisan Democrats.” Id. The 

Court also found Peterson’s affidavit “significant in that it 

weakens the probative value of appellees’ boundary segment 

evidence, which the District Court appeared to give significant 

weight.” Id. 

In contrast, this Court found that Appellees’ limited 

analysis of a few selected precincts was insufficient to support 

a summary judgment that the plan was an unconstitutional racial 

gerrymander. Thus, while in a few instances the State had  



  

8 

excluded from the Twelfth District precincts with lower 

proportions of African-American voters but equal or higher 

proportions of registered Democratic voters than the precincts 

included within the district, id. at 548, this was not an adequate 

basis to support the entry of summary judgment for the 

plaintiffs. On the other hand, the State’s expert, Dr. Peterson, 

was more thorough, analyzing all of the precincts bordering the 

interior and exterior of the district and examining actual voting 

results, not just registration data. Id. at 550. “Moreover, 

appellees’ maps reported only party registration figures. 

Peterson again was more thorough, looking also at actual 

voting results.” Id. The Court found Dr. “Peterson’s more 

complete analysis was significant because it showed that in 

North Carolina, party registration and party preference do not 

always correspond.” Id. at 551 (footnote omitted). 

In light of this evidence, this Court held that Appellees 

were not entitled to summary judgment. Citing prior 

precedents, this Court stated that “a jurisdiction may engage in 

constitutional political gerrymandering, even if it so happens 

that the most loyal Democrats happen to be African-American 

Democrats and even if the State were conscious of that fact,” 

id., at 542 (emphasis in the original) (citations omitted), and 

that, based on the record before it, the motivation behind the 

creation of the district was in dispute and “it was error in this 

case for the District Court to resolve the disputed fact of 

motivation at the summary judgement stage.” Hunt v. 

Cromartie, at 552. Therefore, this Court reversed the lower 

court’s judgment and remanded. 

C. The District Court Trial on Remand 

From November 29, 1999 to December 1, 1999, the 

district court held a trial during which it heard evidence 

    

 



  

9 

regarding the rationale for the configuration of the 1997 

Remedial Plan. State legislators testified at trial that in 1997, 

the General Assembly had two primary redistricting goals. The 

first was to remedy the constitutional defect found by this Court 

in the 1992 Plan: the predominance of racial considerations 

underlying the shape and location of the Twelfth District. NC. 

J.S. App. at 82a - 83a, 138a; Joint Appendix (“Jt. App.”) 

179, 190-191.% The second, but equally important, goal was to 

preserve the even partisan balance (six Republican and six 

Democratic members) in North Carolina’s then-existing 

congressional delegation. Jt. App. at 180-182, 241. Meeting 

the second goal of preserving the same partisan balance in the 

congressional delegation was essential to ensure that the 

General Assembly would be able to agree on a remedial plan, 

since the State House of Representatives was controlled by 

Republicans and the State Senate was controlled by Democrats. 

Id. 

The General Assembly accomplished the first goal of 

enacting a plan free of constitutional defects by utilizing 

variety of different redistricting techniques, including: ® 

avoiding division of precincts and counties whenever possible; 

2) avoiding use of narrow corridors to connect concentrations 

of minority voters; 3) striving for geographical compactness 

without use of artificial devices such as double cross-overs or 

point contiguity, 4) pursuing functional compactness by 

grouping together citizens with similar interests and needs; and 

5) seeking to create districts that provide easy communication 

  

$ Although the First District in the 1992 Plan was never determined 

to be unconstitutional, the General Assembly elected to redraw the First 

District in 1997 to ensure its compliance with the post-1990 census 

decisions. Jt. App. at 234, 238-239.  



  

10 

among voters and their representatives. NC. J.S. App. at 83a, 

138a; Jt. App. at 179. 

State legislators testified, and the trial record reflects 

that during the 1997 redistricting process the General Assembly 

considered but ultimately rejected proposed plans that would 

have created a second majority-minority district in the area east 

of Charlotte toward Cumberland and Robeson Counties. 

Several groups and individuals, including the North Carolina 

Association of Black Lawyers and State Representative Mickey 

Michaux, objected to the 1997 Remedial Plan because, in their 

view, it diluted the voting strength of African-Americans in 

certain areas of the state and “deliberately separate[d] large 

politically cohesive African-American communities.” See Shaw 

v. Hunt, No. 92-202-CIV-5, Memorandum in Support of 

Motion to Intervene (E.D.N.C. filed April 15, 1997).° 

While the State was predominantly motivated by a desire 

to remedy this Court’s finding of liability and to meet various 

political interests, the trial record indicates that the General 

Assembly also had before it an extensive record concerning the 

  

’Indeed, the majority of African-American legislators in the North 

Carolina House of Representatives voted against the 1997 Remedial Plan. 

See NC. J.S. App. at 140a; Jt. App. at 242. The plan favored by those 

opposed to the 1997 Remedial Plan was designed to avoid dilution, but it 

also would have combined African-American voters in Charlotte with 

voters, including African-American and Native American voters, in rural 

areas southeast of Charlotte. The General Assembly majority concluded 
that such a district would have combined urban and rural voters with 

disparate and divergent economic, social and cultural interests and needs. 

Jt. App. at 385. Also, the General Assembly concluded that the proposed 

district lacked a natural means of communication and access among its 

residents and would have thwarted the goal of maintaining partisan balance 

in the State’s congressional delegation. Id. at 200-201, 385. 

   



11 

historical exclusion of African-American voters, continuing 

racial appeals in North Carolina election contests, the socio- 

economic disparities affecting African-American voters’ 

opportunities to participate in the political process, the lack of 

success of African-American candidates, and the continuing 

prevalence of racially polarized voting in North Carolina. See 

NC. J.S. App. at 34a. Plaintiffs stipulated for purposes of tri 

that: 1) the African-American populationis politically cohesive; 

2) the white majority votes sufficiently as a bloc to enable it 

often to defeat the minority’s preferred candidate; 3) for many 

decades African-Americans in North Carolina were victims of 

racial discrimination; and 4) a substantial majority of the State’s 

African-American population is still at a disadvantage in 

comparison to white citizens with respect to income, house, 

education, and health. Id. See also, e.g., Gingles v. Edmisten, 

590F. Supp. 345, 359 (E.D.N.C. 1984), aff 'dinpart andrev’d 

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

App. at 407-411, 433-437, Affidavit of Gary O. Bartlett, 

Section 5 Submission, Attachment 97C-28F-3B, North Carolin 

Congressional Redistricting Public Hearing Transcript, Februar) 

26, 1997 at 19-22; id., Ex. 6, Tab 17 (Expert Report of Dr. J. 

Morgan Kousser) (“Kousser Report”); id. at Ex. 6, Tab 17 

(Shaw v. Hunt, Defendant-Intervenor stipulations) Nos. 1-58, 

64-67). 

Evidence at trial showed that the General Assembly 

succeeded in reaching its stated redistricting goals, particularly 

in creating the Twelfth District. While the 1992 Plan divided 80 

precincts and 44 counties, the 1997 Remedial Plan divides only 

two precincts and 22 counties. The Twelfth District in the 1997 

Remedial Plan is significantly more compact geographically than 

it was in the 1992 Plan. The new Twelfth District contains  



  

12 

parts of six counties, rather than ten, has no areas of “point 

contiguity” and does not contain any “cross-overs” or “double- 

cross-overs” as did the 1992 Plan. In the 1992 plan, the 

Twelfth District’s boundaries divided 48 precincts, while the 

Twelfth District in the 1997 Remedial Plan divides only one. 

See, e.g., NC. J.S. App. at 84a." 

The trial record demonstrates that the boundaries of the 

new Twelfth District were determined predominantly by 

partisan considerations and a desire to have an essentially urban, 

Democratic district in the Piedmont region. NC. J.S. App. at 

84a. While the configuration of the Twelfth District reflects the 

strong correlation between the racial composition of the 

precincts and party preference of African-Americans in the 

district, NC. J.S. App. at 156a-157a, 170a-171a; Jt. App. at 

246-248, the Twelfth District’s African-American total 

population was reduced from the original 56.63 percent in the 

1992 Plan to 46.67 percent and the voting-age population was 

reduced from the original 53.34 percent in the 1992 plan to 

43.36 percent." NC. J.S. App. at 77a-79a. 

  

See also Hunt v. Cromartie at 544 (“By any measure, blacks no 

longer constitute a majority of District 12: blacks now account for 

approximately 47% of the district’s total population, 43% of its voting age 

population, and 46% of registered voters. . . . The new District 12 splits 6 

counties as opposed to 10. . . . With these changes, the district retains only 

41.6% of its previous area. . . and the distance between its farthest points 

has been reduced to approximately 95 miles. . . .”) (citations omitted). 

"The trial record also shows that the Twelfth District’s residents 

share a distinct community of interest. See, e.g., NC. J.S. App. at 84a; Jt. 

App. at 383. 

   



13 

D. The District Court Opinion and the Current Appeal 

On March 7, 2000, over three months after the 

conclusion of the trial, the district court issued its decision. In 

an opinion strikingly similar to its prior summary judgment 

ruling, the Court found as a matter of fact, based upon the 

uncontroverted testimony of Senator Roy A. Cooper, that the 

House and Senate General Assembly committees formed RS 

address the defects found by this Court “aimed to identify a plan 

which would cure the constitutional defects and receive the 

support of a majority of the members of the General Assembly.” 

NC. J.S. at 11a. The court also accepted the uncontroverted 

affidavit testimony of Senator Cooper and Gary O. Bartlett, 

Executive Secretary-Director, State Board of Elections, that 

“[1]n forming a workable plan, the committees were guided by 

two avowed goals: (1) curing the constitutional defects of the 

1992 Plan by assuring that race was not the predominant factor 

in the new plan, and (2) drawing the plan to maintain the 

existing partisan balance in the State’s congressional 

delegation.” Id. The court below also found that the 199 

Remedial Plan met the goal of maintaining the existing partisa 

balances by “avoid[ing] placing two incumbents in the same 

district” and “preserv[ing] the partisan core of the existing 

districts to the extent consistent with the goal of curing the 

defects in the old plan.” Id. The court cited no evidence that 

directly contradicted the testimony introduced by the State to 

the effect that the legislature sought, in creating the 1997 

Remedial Plan, to cure the constitutional defects found by this 

Court by ensuring that race did not predominate in its creation 

while minimizing partisan and political disruption. 

Nevertheless, the court below found that race was the 

predominant factor in the creation of the 1997 Remedial Plan  



  

14 

based largely upon its own assessment of (a) the Twelfth 

District’s racial demographics and shape, (b) the racial 

characteristics of a limited number of precincts that were or 

were not included in the district, and (c) mathematical measures 

of the Twelfth District’s relative compactness. Id. at 11a-17a 

While the court asserted that “[a] comparison of the 1992 

District 12 and the present District is of limited value here,” id. 

at 24a, it nevertheless observed that the Twelfth District in the 

1997 Remedial Plan is as “unusually shaped” as the Twelfth 

District in the 1992 Plan. Id. Focusing almost exclusively on 

demographic data and the district’s configuration, the court 

found “as a matter of fact that the General Assembly, in 

redistricting, used criteria with respect to the Twelfth District 

that are facially race driven.” Id. at 28a. Finally, despite 

extensive conflicting factual evidence, the court below 

concluded that “[t]he legislature eschewed traditional districting 

criteria such as contiguity, geographical integrity, community of 

interest, and compactness in redrawing the District as part of 

the 1997 Plan.” Id. at 29a. 

The court found that no evidence of a compelling 

justification for the creation of the Twelfth District was 

presented and determined that “even if such an interest did exist, 

the 12th District is not narrowly tailored and therefore cannot 

survive the prescribed ‘strict scrutiny’.” Id. The lower court, 

thus, never proceeded to assess whether the Twelfth District 

was narrowly tailored to satisfy an identified compelling 

justification.”” Instead, the court proceeded to conclude that 

  

“Therefore, the court never considered or discussed whether the 

creation of the Twelfth District could be justified by a compelling interest 

in remedying the current effects of North Carolina’s long history of 

political exclusion and in avoiding dilution of minority voting strength. The 

   



15 

“District 12 is an impermissible and unconstitutional racial 

gerrymander in violation of the Equal Protection Clause” and 

ordered the State to “redistrict the 1997 Plan in such a way that 

it avoids the deprivation of the voters’ equal protection rights 

not to be classified on the basis of race,” leaving the State “free 

to use other, proper factors in redistricting the 1997 Plan.” Id. 

(emphasis added). RS 

While ruling that race was also the predominant factor 

in the creation of District 1, the court held that the district was 

narrowly tailored to meet North Carolina’s compelling state 

interest of complying with Section 2 of the Voting Rights Act, 

42 U.S.C. § 1973 (“Section 27). NC. J.S. App. at 34a. In 

addition, the district court found that the configuration of the 

First District also “address[ed] other traditional, political 

considerations, including the desire to protect incumbency, both 

of a Democrat in the First District and a Republican in the 

Third District.” Id. 

District Court Judge Thornburg, sitting by designation 

as Circuit Judge, joined the majority insofar as it held that t 

First District is constitutional; however, inter alia, he dissented 

from the majority opinion that the Twelfth District is an 

unconstitutional racial gerrymander. Judge Thornburg 

acknowledged the difficult challenges that confronted the North 

Carolina General Assembly during the 1997 redistricting 

  

court ignored evidence presented by the State that its “primary goals [of 

remedying the constitutional defects found in the 1992 Plan and preserving 

partisan balances in the congressional delegation] 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),” Jt. App. at 384, 

and that the Twelfth District affords African-American voters a fair chance 

to elect their candidate of choice. Jt. App. at 386.  



  

16 

process. Judge Thornburg found that the State faced a myriad 

of “conflicting agendas and influences,” including incumbency 

considerations and partisan political concerns. Id. at 38a. 

Judge Thornburg concluded that the majority was incorrect to 

conclude that from this “cauldron” race emerges as the 

predominant motivating factor leading to the creation of the 

Twelfth District. Id. He suggested that it would be impossible 

for the State to “navigate these treacherous waters without 

being aware of the issue of race,” since “race loomed as the 

reason why the General Assembly had to redraw districts in the 

first place.” Id at 38a-39a (emphasis in the original). 

However, he concluded that it was improper for the majority to 

determine that race “impermissibly predominated, in a process 

where consciousness of race is not prohibited.” Id. at 39a 

(footnote and citations omitted). In so concluding, the majority 

failed to hold the plaintiffs to their burden of proof and properly 

credit the testimony of the two state legislators who drove the 

1997 redistricting process. Id. 

Judge Thornburg determined that the majority “fail[ed] 

to evaluate the redistricting process within the context of the 

legislative environment where such decisions occur.” Id. at 46a. 

Judge Thornburg found that any plan that was to pass the 

legislature had to receive bi-partisan support from both houses 

and, therefore, the legislative leadership “set out to design a 

plan which, in addition to addressing the constitutional 

deficiencies of past plans, would protect incumbents and thereby 

maintain the then existing 6-6 partisan split amongst North 

Carolina’s congressional delegation.” /d. Furthermore, Judge 

Thornburg reasoned that “[b]ecause both the First and Twelfth 

Districts had Democratic incumbents, and maintaining the 6-6 

split was viewed as imperative, preserving a strong Democratic 

   



17 

Twelfth District which protected incumbent Mel Watts’ [sic] 

political base was absolutely necessary.” Id. at 46a-47a. In 

doing so, Judge Thornburg held that “common sense as well as 

political experience dictated ascertaining the strongest voter 

performing Democratic precincts in the urban Piedmont 

Crescent.” Id. Indeed, Judge Thornburg found that precincts 

were included in the Twelfth District “based primarily upo 

their Democratic performance, not their racial make-up.” Id. 

Thus, he concluded that it was not a constitutional violation 

“[t]hat many of those strong Democratic performing precincts 

were majority African-American, and that the General Assembly 

leaders were aware of that fact.” Id. (footnote omitted). 

Racial considerations were merely part “of the numerous 

political considerations which legislative leaders had to account 

for in designing a plan which would pass.” Id. at 48a. 

SUMMARY OF ARGUMENT 

In stnking down North Carolina’s Twelfth 

Congressional District, the district court misapplied this Court’s 

precedents and imposed its own subjective redistrictin 

preferences as the measure of the district’s constitutionality. 

The court erred in several critical respects. 

First, the lower court erred by conflating any 

consciousness or awareness of race with the application of strict 

scrutiny and a finding that the Twelfth District is a racial 

gerrymander. In so doing, the lower court decision not only 

ignores the law of the case, Cromartie v. Hunt, but erects an 

invidious racial double standard for the African-American voters 

in the Twelfth Congressional District. Second, the court erred 

by failing to examine whether any compelling justification could 

exist for the creation of the challenged district. Third, the 

district court exceeded its authority in ordering that the state  



  

18 

develop a remedy after the election process had begun and only 

a year before a new plan would have to be developed following 

the release of the 2000 census data. 

The district court’s decision, if upheld, would render 

meaningless this Court’s prior holdings, but particularly 

Cromartie v. Hunt, in which this Court refused to equate mere 

consciousness of race with unconstitutional racial 

gerrymandering. In clear contravention to this Court’s decision 

in Cromartie, the district court’s reasoning would apply strict 

scrutiny to all districts drawn for political purposes even if race 

was found to be only one of several factors in the redistricting 

process. 

ARGUMENT 

L The Court Below Erred by Holding that Race 

Predominated in the Creation of the Twelfth 

Congressional District 

As noted supra in the Statement of the Case, the court 

below failed to assess most of the evidence presented by the 

Defendants and Defendant-Intervenors at trial. Instead, the 

court primarily recited statistics concerning the racial 

composition and political party registration of voters in a small 

number of precincts placed inside or outside of the Twelfth 

District. Without even addressing the other factors that state 

legislators took into account in the redistricting process, the 

court concluded from its limited factual recitation not only that 

the 1997 Remedial Plan was race-conscious, but also that it 

must be struck down as motivated predominantly by racial 

considerations. Indeed, the district court ordered that, in 

designing its remedy, the State must limit the factors it could 

use in its redistricting to those other than race, characterizing 

   



19 

only those non-racial factors as proper. See NC. J.S. App. at 

29a. 

This ruling amounted to a holding, contrary to this 

Court’s repeated admonitions, that race-conscious districting is 

inherently unconstitutional. Such a rule would eviscerate the 

protections against minority vote dilution provided by Section 

2, and 1s flatly inconsistent with Shaw v. Reno and its stacey) 

as well as this Court’s precedent in this case. The judgment 

below must, therefore, be reversed. 

A. The court erred by holding in effect that 

race-consciousness triggers “strict scrutiny.” 

This Court has held that Appellees’ evidentiary burden 

in this case is to “prove that District 12 was drawn with an 

impermissible racial motive — in this context, strict scrutiny 

applies if race was the ‘predominant factor’ motivating the 

legislature’s districting decision.” Hunt v. Cromartie, 526 US. 

at 547. To carry this burden, Appellees must show that “race 

for its own sake, and not other districting principles, was th 

legislature’s dominant and controlling rationale in drawing it 

district lines,” Bush, 517 U.S. at 952 (quoting Miller, 515 U.S. 

at 913), and “that other, legitimate districting principles were 

‘subordinated’ to race.” Bush, 517 U.S. at 958. See generally 

id. at 259-68. Merely showing that the State of North Carolina 

conducted the redistricting process with some “consciousness 

of race” is not sufficient. See Bush, 517 U.S. at 1051. Rather, 

this Court has acknowledged the reality that a state ““always is 

aware of race when it draws district lines, just as it is aware of 

age, economic status, religious and political persuasion, and a 

variety of other demographic factors” but held that “[this] sort 

of race consciousness does not lead inevitably to impermissible 

race discrimination’ United States v. Hays, 515 U.S. 737, 745  



  

20 

(1995) (citation omitted) (emphasis in original). As Justice 

O’Connor has observed: 

States may intentionally create majority-minority 

districts and may otherwise take race into consideration, 

without coming under strict scrutiny. Only if traditional 

districting criteria are neglected, and that neglect is 

predominantly due to the misuse of race, does strict 

scrutiny apply. 

Bush, 517 U.S. at 993 (O’Connor, J., concurring) (emphasis in 

original). 

The burden that Appellees carry in this case is heavy and 

cannot be met simply by pointing to evidence of race- 

consciousness. In Shaw v. Reno, 509 U.S. at 653, this Court 

held that it would be the extraordinary case in which strict 

scrutiny would apply. Indeed, in Shaw, Miller, and Bush, the 

district courts applied strict scrutiny only after they determined 

that race played a predominant role in the design of the districts 

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

Shaw v. Hunt, 517 U.S. at 903; Bush, 517 U.S. at 952. And 

those determinations were not based upon mere “race 

consciousness.” For example, in Shaw v. Hunt, this Court 

found sufficient “direct evidence” that the State’s “overriding 

purpose” was to “create two congressional districts with 

effective black voting majorities” and that other considerations 

“came into play only after the race-based decision had been 

made.” Shaw v. Hunt, 517 U.S. at 906 (original emphasis 

omitted and emphasis added). In Miller, the State conceded 

that the district at issue was the “product of a desire by the 

General Assembly to create a majority black district” Miller, 

515 U.S. at 918 (emphasis added), and that the creation of the 

district “violate[d] all reasonable standards of compactness and 

   



21 

contiguity.” Id. at 919. This Court has repeatedly recognized 

the reality of race-consciousness during the redistricting process 

and has reserved strict scrutiny only for those circumstances 

where race predominated,” and this principle has been 

consistently applied by various district and appellate courts that 

have considered constitutional challenges based upon Shaw. 

See, e.g., Chen v. City of Houston, 206 F.3d 502 (5th Ci 

2000); Theriot v. Parish of Jefferson, 185 F.3d 477 (5th Cir. 

1999); Clark v. Calhoun County, 88 F.3d 1393 (5th Cir. 1996); 

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

515 U.S. 1170 (1995). 

This Court has also now clearly defined in this case the 

  

1B See. e. g.,Bush,517 U.S. at 958 (“Strict scrutiny does not apply 

merely because redistricting is performed with consciousness of race. . . . 

Nor does it apply to all cases of intentional creation of majority-minority 

districts”) (citations omitted), Lawyer v. Department of Justice, 521 U.S. 

567 (1997) (upholding the constitutionality of a Florida state legislative 

districting plan that was drawn with conscious consideration of race 

settle litigation challenging prior plan, creating majority-minority distri 

that afforded minority voters opportunity to elect candidates of choice that 

was somewhat irregularly shaped and that split county and city 

boundaries); Abrams v. Johnson, 521 U.S. 74 (1997) (approving 

congressional districting plan for Georgia having majority-African- 

American district); King v. State Board of Elections, 522 U.S. 1087 

(1998) (per curiam) (summarily affirming district court ruling upholding 

the constitutionality of Illinois’ Fourth Congressional District). 

4A further understanding of the De Witt decision can be gained by 

reviewing the decision of the California Supreme Court that created the 

redistricting plans challenged in DeWitt. See Wilson v. Eu, 823 P.2d 545, 

563-64, 582,583-84,594, 1 Cal. 4th 707, 746,775,776, 790, 4 Cal. Rptr. 

2d 379, 397-8, 416, 417-8, 428 (1992) (describing the various special 

efforts taken to create districts that would comply with the Voting Rights 

Act).  



  

22 

proper role race may play in a state meeting its various political 

objectives during the redistricting process, holding that “a 

jurisdiction may engage in constitutional political 

gerrymandering, even if it 50 happens that the most loyal 

Democrats happen to be black Democrats and even if the State 

were conscious of that fact.” Hunt v. Cromartie, 526 U.S. at 

542 (emphasis in the original) (citing Bush, 517 U.S. at 968; 

Shaw v. Hunt, 517 U.S. at 905; Miller, 515 U.S. at 916; Shaw 

v. Reno, 509 U.S. at 646). 

Evidence that blacks constitute even a supermajority in 

one congressional district while amounting to less than 

a plurality in a neighboring district will not, by itself; 

suffice to prove that a jurisdiction was motivated by 

race in drawing its district lines when the evidence also 

shows a high correlation between race and party 

preference. 

Hunt v. Cromartie, 526 U.S. at 542. 

Appellees’ evidentiary presentation below was 

completely inadequate to satisfy this Court’s stringent burden 

of proof.” As Judge Thornburg observed in dissent: 

  

'> Appellees introduced one e-mail from a staff member of the 

General Assembly, referring to a modification moving “black voters” into 

the Twelfth District, which appellees have characterized as “smoking gun” 

evidence establishing the predominance of legislative racial motivations. 

However, as Judge Thornburg found below, “this anecdotal evidence does 

little more than reinforce what is already known, and what is not 

constitutionally impermissible: North Carolina’s legislative leaders were 

conscious of race, aware of racial percentages, on notice of the potential 

constitutional implications of their actions, and generally very concerned 

with these and every other political and partisan consideration which 

affected whether or not the redistricting plan would pass.” NC. J.S. App. 

   



23 

Plaintiffs [sic] evidence does nothing more than address 

the admitted fact that legislative leaders were aware of 

the race issue, or perhaps that the Twelfth District could 

have possibly been drawn in a different way to 

accomplish the legislature’s stated goals. Such evidence 

does not meet Plaintiffs’ heavy burden of showing by a 

preponderance of the evidence that racial motiv 

predominated in substantial disregard of legitimate 

districting criteria. 

NC. J.S. App. at 55a. 

The court below failed to make findings comparable to 

those that led this Court to invalidate redistricting plans in Shaw 

and Miller. The lower court also made no findings that would 

permit it to assess the interrelationship between race and politics 

as required by this Court in Hunt v. Cromartie. In fact, the 

record below demonstrated that race did not predominate in the 

creation of the district. The Twelfth District in the 1997 

Remedial Plan is significantly more compact geographically than 

it was in the 1992 Plan. The new Twelfth District contai 

parts of six counties, rather than ten, and it does not have any 

areas of only “point contiguity.” In the 1992 plan, the Twelfth 

District’s boundaries divided 48 precincts, while the 1997 

Remedial Plan divides only one. The boundaries of the new 

Twelfth District were determined by partisan considerations and 

a desire to have an urban, Democratic district in the Piedmont 

  

at 48a. Thus, given that context, the language of the e-mail offers little to 

assist appellees in meeting their substantial burden of proof in this case of 

showing that race was the predominant factor in the 1997 redistricting and 

“certainly do[es] not amount to the ‘smoking gun’ status which Plaintiffs 

would have the Court believe.” Id.  



  

24 

region. See Jt. App. at 180-182, 241; NC. J.S. App. at 81a-87a; 

Id. at 138a-140a. While the African-American voting-age 

population was originally 53.34 percent in the 1992 plan, it was 

reduced to 43.36 percent in the 1997 Remedial Plan. NC. J.S. 

App. at 53a, 77a-79a. 

Moreover, the record below demonstrates that the 

voters in the Twelfth District constitute a distinct community of 

interest and that this was evident to the General Assembly when 

it created the district. See Jt. App. at 383; NC. J.S. App. at 

53a-54a, 84a. As Judge Thornburg noted in dissent, “Senator 

Cooper felt that maintaining this community of interest was one 

of the legislature’s motivating factors, and indeed, the 1997 

Twelfth District as drawn reflected and protected the clear 

community of interest in the Piedmont Crescent.” NC. J.S. 

App. at 54a. 

Proof that, in addition, the Twelfth District included 

strong Democratic performing precincts, that a number of these 

precincts were majority African-American, and that those 

leading the redistricting process were aware of these facts, does 

not establish a violation of the Constitution. For the lower 

court essentially to hold otherwise vitiates this Court’s ruling on 

the earlier appeal in this case that permits a state to meet its 

partisan political goals even if it is aware of the race of the 

voters as it undertakes this process. The decision below would 

automatically render any plan drawn with even the mere 

awareness of race unconstitutional, and therefore, it should be 

reversed. 

   



25 

B. The court erred by not giving proper weight 

to the political considerations that led to the 

creation of the Twelfth District. 

By ignoring this Court’s precedents, including the law 

of this case, Hunt v. Cromartie, the court below also failed to 

give any consideration — much less appropriate weight — to th 

important political realities confronted by the General Assembl 

during the redistricting process. Although the General 

Assembly’s primary goals in enacting the 1997 Remedial Plan 

were to correct the prior constitutional violation found by this 

Court in Shaw v. Hunt and to preserve the congressional 

delegation’s partisan balance, the State could not achieve these 

goals in a political vacuum. As the testimony showed, among 

other political considerations, legislators were concerned that 

the plan developed be racially fair. Jt. App. at 211-212, 241, 

384-386. This was not only important given the history of 

political exclusion and discrimination that was in the record 

before the General Assembly members, but it was also necessary 

to achieve the political goal of securing enough support for "4 

1997 Remedial Plan from among African-American political and 

legislative leaders in the General Assembly. See Jt. App. at 241. 

Such considerations do not relegate a redistricting plan to strict 

scrutiny. See Lawyer, 521 U.S. at 581 (upholding the 

constitutionality of a majority-minority district that district court 

found ““offers . . . any candidate, without regard to race, the 

opportunity’ to seek and be elected to office”) (quoting and 

citing Scott v. United States, 920 F. Supp. 1248, 1256 (M.D. 

Fla. 1996)); DeWitt, 856 F. Supp. at 1413-14 (finding that the 

California redistricting plan, containing intentionally created 

majority-minority districts, was not an unconstitutional racial 

gerrymander because the plan “evidences a judicious and proper  



  

26 

balancing of the many factors appropriate to redistricting, one 

of which was the consideration of the application of the Voting 

Rights Act’s objective of assuring that minority voters are not 

denied the chance to effectively influence the political process”). 

In rejecting the political rationale for the creation of the 

Twelfth District, the lower court established an invidious racial 

double standard. Appellees argued, and the lower court held, 

that the inclusion of substantial numbers of African-American 

voters in the Twelfth District automatically indicates an illegal 

racial purpose. The lower court ruling also tacitly endorses a 

principle that Appellees raised at trial and throughout this case: 

it is constitutionally suspect for the state to attempt to preserve 

the core of former Districts 1 and 12 in an attempt to protect 

the incumbency of the representatives of those districts. See, 

e.g., Trial Transcript, Volume I, December 1, 1999 at 557 and 

602; Final Pretrial Order at 10. Judge Thornburg observed: 

Plaintiffs contend that any district which is based on the 

‘footprint’ of a prior unconstitutional district is 

inherently invalid. This suggests that the legislature 

must begin with a completely clean slate in order to 

wipe away the vestiges of prior unconstitutional 

districts. . . . 

NC. J.S. App. at 44a. 

It is undisputed that “every one of the majority African- 

American precincts included in the Twelfth District are among 

the highest, if not the highest, Democratic performing districts 

in that geographic region.” Jt. App. at 50a. The political 

decision to include the best performing Democratic precincts 

into districts of Democratic incumbents in an effort to preserve 

the incumbency of the existing Democratic members of 

   



27 

Congress was replicated throughout the 1997 redistricting 

process. See, e.g., Jt. App. at 180-182, 211, 241. Indeed, it is 

undisputed that the State sought to protect all incumbent 

members of its congressional delegation, white and African 

American. Id. Ignoring this political reality would have proved 

fatal to the plan, as Judge Thornburg concluded: 

[R]equiring a legislature to start completely ton 

scratch makes their task nearly impossible because 

congressional incumbents and state legislators will 

invariably demand the preservation of as much of the 

geographic core of districts as possible, a political 

reality explained in testimony at the trial. Indeed, the 

undersigned can think of no reason why a legislature 

may not simply address the offensive aspects of an 

unconstitutional district, cure those defects, and thereby 

create a constitutional district. 

NC. J.S. App. at 44a-45a. 

Since ten of twelve members of that delegation ver 

white, incumbency protection in and of itself hardly suggests 

that racial motives were predominant. Invalidating the State’s 

political decision to secure the reelection chances also of the 

Twelfth District’s incumbent places limits on the electoral 

choices of the Twelfth District’s African-American Democrats 

to elect their candidate of choice, a restriction inapplicable to 

the majority of the State’s other voters. Moreover, to disregard 

the protection of the incumbent only in the Twelfth District 

would deprive the voters of that district — and only those voters 

in the state — of the opportunity to maintain representation by 

an experienced legislator if they chose to do so. Thus, the 

lower court and Appellees urge the adoption of a double 

standard that is intolerable under the decisions of this Court.  



  

28 

See, e.g., Miller v. Johnson, 515 U.S. at 928 (O’Connor, J., 

concurring); Shaw v. Hunt, 517 U.S. at 996 (Kennedy, J. 

concurring). 

Indeed, as this Court has now repeatedly held, the 

standard adopted by the lower court is not correct. Legislative 

consideration of a non-racial factor, such as incumbency 

protection, that is correlated with race is insufficient to 

demonstrate predominance unless the court finds that it was a 

proxy for race. See Hunt v. Cromartie, 526 U.S. at 542; Bush 

v. Vera, 517 U.S. at 967-69. The court decision below was 

erroneous both as a matter of fact and as a matter of law and 

should be reversed. 

IL. The District Court Erred by Failing to Assess 

Whether the District was Narrowly Tailored to 

Serve a Compelling Justification 

Even if the district court was correct to find that race 

was the predominant factor affecting the drawing of the Twelfth 

District, the court erred by failing to consider whether the 

district was narrowly tailored to achieve an identified 

compelling governmental interest. 

As discussed supra, the district court concluded that, in 

drafting the 1997 Remedial Plan, the State disregarded 

traditional redistricting criteria and found that race was the 

predominant factor in the creation of the Twelfth District. 

However, the court never engaged in the necessary analysis to 

assess whether the Twelfth District was narrowly tailored to 

satisfy an identified compelling justification. Instead, the court 

simply announced that “no evidence of a compelling state 

interest in utilizing race to create the new 12th District has been 

   



29 

presented.”’® NC. J.S. App. at 29a. However, that was 

apparently irrelevant to the lower court, since it then determined 

that “even if such an interest did exist, the 12th District is not 

narrowly tailored and therefore cannot survive the prescribed 

‘strict scrutiny.” Id. (emphasis added). Since the question of 

narrow tailoring can be determined only in relationship to the 

compelling interest to be served, this demonstrates that t 

lower court never conducted the required analysis to determine 

whether the Twelfth District was narrowly tailored to satisfy a 

specified compelling justification. 

This error is most directly analogous to that which some 

district courts have made in applying Section 2. After 

determining whether the plaintiffs in a Section 2 case have met 

their burden of demonstrating the existence of the three primary 

Gingles factors, courts are required to determine whether, in 

light of those factors and the totality of circumstances, the 

electoral system violates Section 2 because black voters enjoy 

“less opportunity than other members of the electorate to 

participate in the political process and to elect eprecentativily 

of their choice.” 42 U.S.C. § 1973; Johnson v. De Grandy, 51 

U.S. 997 (1994). 1t is error for a court to ignore this critical 

step, either by referring only to the analysis in passing or by 

hypothesizing that, even were it to have conducted the analysis, 

it would have ruled against plaintiffs. Because of the 

importance of this analysis to the Section 2 inquiry, the Courts 

of Appeals have held that the “totality” inquiry cannot be 

carried out in dicta. See Jenkins v. Red Clay Consolidated 

School District Bd. of Ed., 4 F.3d 1103, 1135 (3rd Cir. 1993) 

  

“This finding is clearly erroneous in light of the parties’ 
stipulation referred to infra.  



  

30 

(criticizing “the conclusory (‘even if’) analysis engaged in by the 

district court”), cert. denied, 114 S. Ct. 779 (1994). See also 

Clark v. Calhoun County, 21 F.3d 92, 97 (5th Cir. 1994) 

(reversing and remanding district court decision which 

erroneously addressed Gingles factors, despite district court’s 

statement that it would have ruled against plaintiffs under 

totality of circumstances even if plaintiffs had satisfied Gingles 

factors). 

Similarly, under the Shaw jurisprudence, a district 

court’s inquiry does not end when it finds that race 

predominated in the redistricting process. This Court’s Shaw 

jurisprudence requires a court to assess whether there was a 

compelling justification for a plan drawn with race as a 

predominant factor, and whether the plan was narrowly tailored 

to serve that justification. See, e.g., Shaw v. Hunt, 517 U.S. at 

914 (assuming without argument that Ҥ 2 could be a 

compelling interest”); Miller, 515 U.S. at 915 (race- 

consciousness in drawing district lines would not alone render 

a districting plan presumptively unconstitutional). The lower 

court erred by discontinuing its inquiry once it concluded that 

race predominated in the creation of the Twelfth District. 

The trial record indicates that, in creating the plan, the 

legislature was aware of North Carolina’s long history of 

official discrimination against African-Americans and their 

exclusion from the political process due to state and private 

action. In addition, plaintiffs stipulated to this history and its 

lingering effects. See NC. J.S. app. at 34a. Moreover, there 

was evidence that the State sought to “provid[e] minority voters 

a fair opportunity to elect representatives of their choice in at 

least two districts (Districts 1 and 12),” Jt. App. at 384, and that 

the Twelfth District does afford African-American voters a fair 

   



31 

chance to elect their candidate of choice. See Jt. App. at 386. 

The district court erred in not engaging in the rigorous strict 

scrutiny inquiry required by this Court. 

III. The District Court Erred in Ordering Redistricting 

on the Eve of the Post-2000 Census Redistricting 

Cycle 

Despite the urgency of the State’s election schedule, the 

district court failed to issue its discovery schedule until August 

23, 1999, three months after this Court’s prior decision in this 

case. Although the district court was aware that the State’s 

election process had begun, it nevertheless delayed over three 

months after an expedited trial to issue its opinion. In the time 

that the trial court took to issue its opinion, the State’s election 

process was fully engaged. Any remedy in this case that 

requires redistricting threatens to disrupt the on-going election 

process, perhaps requiring new primary and general elections. 

Appellees have indicated clearly that they will seek just such a 

remedy. See, e.g., Appellees’ Motion to Expedite Schedule ® 

   Appeal. The injury from disrupting election processes 

significant and has been well documented by this Court and the 

federal trial courts. See, e.g., Reynolds v. Sims, 377 U.S. 533 

(1964)."7 Moreover, the injury to minority voters which would 

  

These principles have guided federal trial courts in both 

reapportionment and vote dilution cases. See, e.g., Diaz v. Silver, 932 F. 

Supp. 462, 466 (E.D.N.Y. 1996) (preliminary injunction denied to avoid 

harming public interest where elections scheduled in a few months, even 

though court found likelihood of success on Shaw claim and irreparable 

injury to plaintiffs); Cardona v. Oakland Unified School District, 785 F. 

Supp. 837, 843 (N.D. Cal. 1992) (court refused to enjoin election where 

primary “election machinery is already in gear,” including the passage of 

deadline for candidates to establish residency and start of candidate  



  

32 

result from disruption of the election schedule in this case is 

especially grave. See Smallwood Appellants’ Application to 

Stay Decision of the United States District Court for the 

Eastern District of North Carolina Pending Appeal at 2-6.'* See 

also Reynolds, quoted supra, 377 U.S. at 585 (“[U]nder certain 

circumstances, such as where an impending election is imminent 

and a State’s election machinery is already in progress, equitable 

considerations might justify a court withholding the granting of 

immediately effective relief in a legislative apportionment case, 

even though the existing apportionment scheme was found 

invalid”). See also Watkins v. Mabus, 502 U.S. 954 (1991); 

Republican Party of Shelby County v. Dixon, 429 U.S. 934 

(1976); Ely v. Klahr, 403 U.S. 108 (1971). 

  

nominating period); Republican Party of Virginia v. Wilder, 774 F. Supp. 
400 (W.D. Va. 1991) (injunction denied in case with “uncertain cause of 

action with only possible irreparable harm’ and where time for election 

was close and there was danger of low voter turnout if election postponed); 

Cosner v. Dalton, 522 F. Supp. 350 (E.D. Va. 1981) (three-judge court) 

(use of malapportioned plan not enjoined where elections were two months 

away); Shapiro v. Maryland, 336 F. Supp. 1205 (D. Md. 1972) (court 

refused to enjoin election where candidate filing deadline was imminent and 

granting relief would disrupt election process and prejudice citizens, 

candidates and state officials); Sincock v. Roman, 233 F. Supp. 615 (D. 

Del. 1964) (three-judge court) (per curiam) (enjoining election would 

result in disruption in ongoing election process which would cause 

confusion and possible disenfranchisement of voters); Meeks v. Anderson, 

229 F. Supp. 271, 274 (D. Kan. 1964) (three-judge court) (court held 

malapportioned districts unconstitutional but concluded that the “ends of 

Justice” would “best be served” by permitting elections to proceed). 

"*The harms that could result from such disruption prompted the 

three-judge district court in the earlier litigation in Shaw v. Hunt litigation 

to deny injunctive relief to plaintiffs in 1996, where only a few months 

remained before the general election. 

   



33 

Moreover, in less than one year, the Census Bureau will 

release the 2000 Census data and the State will begin the 

redistricting process anew, a process that inevitably will result 

in at least some Congressional districts being redrawn. To 

require the State to engage in the disruptive process now only 

to repeat it in less than a year would be unduly burdensome and 

duplicative. Cf. Maxwell v. Foster, No. 98-1378, (W.D. Li 

Nov. 24, 1999) (district court granting State of Louisiana’s 

motion for summary judgment and finding that “rapid-fire 

reapportionment immediately prior to a scheduled census would 

constitute an undue disruption of the election process, the 

stability and continuity of the legislative system and would be 

highly prejudicial, not only to the citizens of Louisiana, but to 

the state itself’), attached to the Smallwood Appellants’ 

Application to Stay Decision of the United States District Court 

for the Eastern District of North Carolina Pending Appeal as 

Appendix E. Accordingly, courts have repeatedly upheld 

district court decisions to either deny claims brought in close 

proximity to the decennial census or permit elections to be hel 

under plans deemed unconstitutional when the release of ne 

decennial census data will inevitably result in the creation of a 

new redistricting plan. See, e.g., Ely, 403 U.S. at 114-115 

(affirming district court decision to permit elections to proceed 

under plan held to be unconstitutional when release of 1970 

census data would result in creation of new reapportionment 

plan), White v. Daniel, 909 F.2d 99, 103 (4th Cir. 1990) (“A 

challenge to a reapportionment plan close to the time of a new 

census, which may require reapportionment, is not favored”); 

Maryland Citizens for a Representative Gen. Assembly v. 

Governor of Maryland, 429 F.2d 606, 610 (4th Cir. 1970) 

(challenge to apportionment plan dismissed because potentially  



  

34 

would require creation of remedial plan in close proximity to 

release of census data and next redistricting)." 

In Ely, this Court held that a district court did not err in 

allowing elections to proceed under a plan determined to be 

unconstitutional because redistricting based on decennial census 

data was imminent. Ely, 403 U.S. at 114. In that case, 

plaintiffs challenged the constitutionality of Arizona’s state 

legislative districts. Id. at 111. After several attempts by the 

legislature to enact a constitutionally valid plan, the district 

court ordered that the state conduct the next elections under the 

unconstitutional plan, reasoning that another plan could not be 

created without delaying the primary elections. Id. at 113. In 

affirming the district court decision, this Court relied on the fact 

that the next census would result in the creation of a new 

reapportionment plan drawn according to the new decennial 

census data. /d. at 114-115. 

As the next redistricting cycle is imminent, if this Court 

were to affirm the decision below, allowing the state to proceed 

with elections under the 1997 Remedial Plan would not 

permanently prevent plaintiffs from acquiring the remedy they 

seek: a new redistricting plan. If appellees are not satisfied 

with the new plan, they may seek to modify it through 

participation in the political process or challenge its 

constitutionality subsequently. The reasoning of the Seventh 

  

In making its ruling in Maryland Citizens, the Fourth Circuit 

compared the facts in that case to those in Chavis v. Whitcomb, 396 U.S. 

1064 (1970) in which this Court granted a stay, permitting elections to 

proceed under a plan held to be unconstitutional. The Fourth Circuit panel 

reasoned, “If relief was appropriately withheld in Chavis, a fortiori, it must 

be withheld in this case.” Maryland Citizens, 429 F. 2d at 611. 

   



35 

Circuit decision in Dickinson v. Indiana State Election Bd. , 933 

F.2d 497, 502 (7th Cir. 1991) is directly on point: 

The district court also concluded that, on equitable 

grounds, the pending 1991 redistricting (based on the 

1990 census) makes entry of relief inappropriate. The 

district court did not err in making this finding. T 

legislative reapportionment is imminent, and Districts 

and 51 may well be reshuffled. The legislature should 

now complete its duty, after which the plaintiffs can 

reassess whether racial bias still exists and seek 

appropriate relief. 

This is consistent with the most recent decisions of district 

courts that have considered constitutional challenges to 

redistricting plans late in the decade. See, e.g., Maxwell v. 

Foster, supra. p. 33. 

Therefore, the district court ruling ordering redistricting 

and new elections should be reversed. Furthermore, even if this 

Court should hold the Twelfth District unconstitutional, rath 

than requiring the State to engage in a disruptive redisiici 

process that will invariably produce districts drawn according 

to inaccurate data, this Court should act consistent with well- 

established precedent to not order a new election as part of any 

remedy, permitting the State to proceed with the 2000 elections 

under the 1997 Remedial Plan or allowing those results to stand 

should the elections be held before the final disposition of this 

case before this Court.  



  

36 

  

CONCLUSION 

For the foregoing reasons, this Court should reverse the 
judgment of the district court and enter judgment for appellants. 

Respectfully submitted, 

ELAINE R. JONES 

Director-Counsel 

NORMAN J. CHACHKIN 

JACQUELINE A. BERRIEN 

NAACP LEGAL DEFENSE 

& EDUCATIONAL FUND, INC. 

99 Hudson Street, Suite 1600 

New York, NY 10013 

(212) 965-2200 

ToDD A. Cox* 

NAACP LEGAL DEFENSE 

& EDUCATIONAL FUND, INC. 

1444 Eye Street, NW 

10th Floor 

Washington, DC 20005 

(202) 682-1300 

ADAM STEIN 

FERGUSON, STEIN, WALLAS, 

ADKINS, GRESHAM & 

SUMTER, PA. 

312 West Franklin Street 

Chapel Hill, NC 27516 

(919) 933-5300 

*Counsel of Record 

Attorneys for Smallwood Appellants 

 





  

No. 99-1178 
  

  

IN THE 

Supreme Court of the United States 
  

  

  

RECE Iv: ——— 

HAND DELVE D | ALFRED SMALLWOOD, ef al., 

RED Petitioners CF FD -— ? °F ~ 8 2000 . 
OF FICE 0 Ny pe 

Sup UPREME Jes 1 Len MARTIN CROMARTIE, et al., 
—— A Respondents. 

AFFIDAVIT OF SERVICE 
  

I HEREBY CERTIFY that all parties required to be served, have been served on this 8th day of 

September, 2000, in accordance with U.S. Supreme Court Rule 29.5(c), three (3) copies of the 

foregoing BRIEF OF THE SMALLWOOD APPELLANTS by placing said copies in the U.S. 

Mail, first class postage prepaid, addressed as listed below: 

Edwin M. Speas, Jr. Robinson O. Everett 

Tiare B. Smiley Everett & Everett 

North Carolina Department of Justice P.O. Box 586 

P.O. Box 629 Durham, Morth Carclina 27702 

Raleigh, North Carolina 27602-0629 

    
  

    

YMOND CHARLES CLARK 

BYRONS. ADAMS, LEGAL & COMMERCIAL PRINTERS 

1615 L Street, NW, Suite 100 

Washington, DC 20036 

(202) 347-2803 

Sworn to and subscribed before me this 8th day of Beptenibg: won 

“ I. 3) NER 
WILLIAM R. ma 

NOTARY PUBLIC 

District of Columbia 

  

My commission expires April 30, 2004.