Jurisdictional Statement and Appendix; Joint Appendix Volume I of II

    In the 

Supreme Court of the United States 

October Term, 1999 
  

JAMES B. HUNT, JR., et al., 

Appellants, 

and R 

Alfred Smallwood, ef al. 

Appellant-Intervenors, 

V. 

MARTIN CROMARTIE, ef al., 

Appellees. 
  

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

  

JURISDICTIONAL STATEMENT 
  

MICHAEL F. EASLEY 

North Carolina Attorney General » 

Tiare B. Smiley*, Special Deputy Attorney General 
Norma S. Harrell, Special Deputy Attorney General 

Melissa L. Saunders, Special Counsel to Attorney General 

North Carolina Department of Justice 

Post Office Box 629 
Raleigh, North Carolina 27602-0629 

Telephone: (919) 716-6900 

May 19, 2000 *Counsel of Record 
  

  

 





i 

QUESTIONS PRESENTED 

1. May a plaintiff trigger the strict scrutiny of Shaw in a 

mixed motive case simply by showing that the challenged 

district is somewhat irregular in shape and the State considered 

race, along with a number of other factors, in designing it? 

2 May a plaintiff trigger the strict scrutiny of Shaw 

simply by showing that the challenged district was intentionally 

created as a majority-minority district? 

3. Does a final judgment from a court of competent 

jurisdiction, which finds a State’s congressional redistricting 

plan does not violate the constitutional rights of plaintiffs and 

authorizes the State to proceed with elections under it, preclude 

a later constitutional challenge to the same plan in a separate 

action brought by those plaintiff’s privies? 

4, Should a court enjoin an election after a State’s election 

machinery is in full progress and require the State to enact a 

new redistricting plan based on an outdated census that will be 

superseded by the imminent 2000 Federal Census? 

 



    
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LIST OF PARTIES 

JAMES B. HUNT, JR, in his official 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, THE NORTH CAROLINA STATE 

BOARD OF ELECTIONS, and LARRY LEAKE, S. 

KATHERINE BURNETTE, FAIGER BLACKWELL, 

DOROTHY PRESSER, and JUNE YOUNGBLOOD in their 

capacity as the North Carolina State Board of Elections, are 

appellants in this case and were defendants below; 

ALFRED SMALLWOOD, DAVID MOORE, WILLIAM M. 

HODGES, ROBERT L. DAVIS, JR.,, JAN VALDER, . 

BARNEY OFFERMAN, VIRGINIA NEWELL, CHARLES 

LAMBETH, and GEORGE SIMKINS, are intervenor- 

appellants in this case and were intervenor-defendants below; 

MARTIN CROMARTIE, THOMAS CHANDLER MUSE, 

R.O. EVERETT, JH. FROELICH, JAMES RONALD 

LINVILLE, SUSAN HARDAWAY, LOIS WEAVER, and 

JOEL K. BOURNE are appellees in this case and were 

plaintiffs below. 

 



    
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TABLE OF CONTENTS 

QUESTIONS PRESENTED ........ 00 vesu caress . i 

LISTOPPARTIES .... ui cis cas vay maddeenio nn, iii 

TABLE OF AUTHORITIES: . .. ice vvv ss svivnvess 1X 

OPINIONS BELOW ..... SRE SONI INORG Sa ar i 1 

JURISDICTION... ia ef sn svat nn isinn ss 1 

CONSTITUTIONAL PROVISION INVOLVED ........ 1 

STATEMENTOFTHECASE ..........vvcadinai vuin 1 

A, LEGAL PROCEEDINGS... c icc uissnnivn don snnss 1 

B. THE 1997 CONGRESSIONAL REDISTRICTING 

PROCESS i a ens ad aids o Wns rR ae 2 <4 4 

C. THE DISTRICTCOURT’SOPINION ........c0unun... 9 

ARGUMENT 0... ohh vr siensniion « ovina J 12 

 



  

vi 

I. THE DISTRICT COURT’S APPLICATION 

OF THE PREDOMINANCE STANDARD 

TO DISTRICT 12 

A. THE DISTRICT COURT WRONGLY 

EQUATED MERE CONSIDERATION OF 

RACE WITH RACIAL GERRYMANDERING . . 

THE DISTRICT COURT FAILED TO 

CONDUCT THE “CAREFUL REVIEW” 

REQUIRED IN A “MIXED MOTIVE” CASE .. 

THE DISTRICT COURT FAILED TO 

GIVE SUFFICIENT DEFERENCE TO THE 

STATE'S DISTRICTING PREFERENCES ..... 

THE EVIDENCE PRESENTED AT TRIAL 

WAS LEGALLY INSUFFICIENT TO 

SUPPORT A FINDING THAT RACE WAS 

THE PREDOMINANT FACTOR IN 

DESIGNING DISTRICT AZ ovis ve Sails 

II. THE DISTRICT COURT'S APPLICATION 

OF STRICT SCRUTINY TO DISTRICT 1 

III. CLAIM PRECLUSION BY VIRTUAL 

REPRESENTATION BARS PLAINTIFFS’ 

DISTRICT 12 CLAIM ® «a ® st es ee ms a ss se ss a ss 

+32 

13 

15 

    

   



vii 

IV. THE DISTRICT COURT’S DECISION 

ONBEMEDY von. ste vatiiiinssasmnres 29 

  CONCLUSION ....... ai sc rauisiivinsnvaingirns sonny 30 
i ¥ 

| 55 

2 
k 

 



  

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1X 

TABLE OF AUTHORITIES 

CASES 

Abrams v. Johnson, 521 U.S. 74 (1997) ........co.... 30 

Burns v. Richardson, 384 U.S. 73 (1966) ............. 19 

Bush v. Vera, 517 U.S.952 (1996) ........ 21a 

Chapman v. Meier, 420 U.S. 1 (1975) ............ 12,17: 

Chen v. City of Houston, 

206 F.3d.502 (5th Cir. 2000) ........... 14,15,17,21 

Clark v. Calhoun Co., 88 F.3d 1393 (5th Cir. 1996) .... 15 

Commissioner of Internal Revenue v. Sunnen, 

3I3US. 501 (1948) ..... cu cnvininrssnveiviguens 24 

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

summarily aff'd, 515 U.S. 1170 (1995) ........... 23 

Environmental Defense Fund, Inc. v. Alexander, 

501 F. Supp. 742 (N.D. Miss. 1980) ............. 27 

Gonzalez v. Banco Cent. Corp., 

ITF 3d751 (Ast Cir. 1994)... vein cio vile 26 

Growe v. Emison, S07 U.S. 25 (1993)  ....cc.suvnssnis 17 

 



  

X 

Hunt v. Cromartie, 526 U.S. 541, 

119 S. Ct. 1545 (1999) (Cromartie l) . . .. 3,11,12,16,17 

Jaffree v. Wallace, 837 F.2d 1461 (11th Cir. 1988) ..... 26 

Johnson v. Miller, 922 F. Supp. 1556, 

aff'd, Abrams v. Johnson, 521 U.S. 74 (1997) ...... 7 

Los Angeles Branch NAACP v. Los Angeles Unified 

School Dist., 750 F.2d 731 (9th Cir. 1984) ........ 27 

Louisiana Seafood Management v. Foster, 

53 F. Supp. 2d 872 (E. D. La. 1999) ........ 26,27,28 

Miller v. Johnson, 515 U.S. 900 (1995) ...... 12,13,17,21 

Milliken v. Bradley, 418 U.S. 717 (1974) ......... : 2219 

Milliken v. Bradley, 433 U.S. 267 (1977) ............. 19 

Missouri v. Jenkins, 515 Us. 701998)... on inhi 19 

NAACP, Minneapolis Branch v. Metropolitan 

Comncil, 125F 3d 1171 Bth Cir. 1997) ...... 5... 27 

NAACP v. Hunt, 891 F.2d 1555 (11th Cir. 1990) ...... 27 

Petit v. City of Chicago, 

766 F. Supp. 607(ND. HL. 1991)... . .......:. 27,28 

    

   



  

Xi 

Quilter v. Voinovich, 981 F. Supp. 1032 

(N.D. Ohio 1997), aff'd, 523 U.S. 1043 (1998) .. 15,21 

Reynolds v. Sims, 377 US. 53300960) ...cv.iivi us 29 

Richards v. Jefferson County, 517 U.S. 793 (1996) .. 25,26 

Shaw v. Hunt, 517 U.S. 899 (1996) (Shawl) ........ 1,21 

Shaw v. Reno, 509 U.S. 630 (1993) (Shawl) ........ 6,22 

South Central Bell Tel. Co. v. Alabama, 

526 11.8: 16001999) ov. vue a iinniininy vin 26,27,28 

Theriot v. Parish of Jefferson, 185 F.3d 477 

(5th Cir. 1999), petition for cert. filed, 

68 U.S.L.W. 3491 (U.S. Jan. 18, 2000) 

(NO. 99-1203) 5 cas tins nnias is sani 15,17,21 

Tyus v. Schoemehl, 93 F.3d 449 (8th Cir. 1996) ... 26,27,28 

Voinovich v. Quilter, 507 US 146 (1993) ............. 17 

Wise v. Lipscomb, 437 U.S. 535(1978) .............. 19 

 



    

  

xii 

STATUTES i 

US. CONST. att 82 iuevair i ssiinssitin ens iiss 12 i 

TER he UF oa BNR SR TR URE a ei 1 | 

1997 N.C. Sess. Laws, ch. 11 (1997 Plan) ............. 2 | 

1998 N.C. Sess. Laws, ch. 2(1998 Plan} ............... 3 

OTHER i 

18 CHARLES ALAN WRIGHT & ARHTUR R. MILLER, 

FEDERAL PRACTICE & PROCEDURE §4457 [ 

aed 1987)... ia a AT 26 

 



  

JURISDICTIONAL STATEMENT 

Governor James B. Hunt, Jr., and the other state defendants 

below appeal from the final judgment of the three-judge United 

States District Court for the Eastern District of North Carolina, 

dated March 7, 2000, which held that District 12 in the State’s 

1997 Congressional Plan is an unconstitutional gerrymander 

and enjoined the State from conducting any elections under that 

plan. 

OPINIONS BELOW 

The March 7, 2000, majority opinion of the district court 

and the concurring and dissenting opinion of the Honorable 

Lacy Thornburg, District Court Judge sitting by designation as 

Circuit Judge, which has not yet been reported, appear in the 

Appendix at 1a and 37a, respectively.’ 

JURISDICTION 

The district court’s judgment was entered on March 8, 

2000. App. 71a. On March 10, 2000, appellants filed notice of 

appeal to this Court. App. 69a. The jurisdiction of this Court 

is invoked under 28 U.S.C. § 1253. | 

CONSTITUTIONAL PROVISION INVOLVED 

This appeal involves the Equal Protection Clause of the 

Fourteenth Amendment. App. 73a. 

STATEMENT OF THE CASE 

A. LEGAL PROCEEDINGS 

This case and Shaw v. Hunt, 517 U.S. 899 (1996) (“Shaw 

IP), are intertwined. On June 13, 1996, this Court in Shaw 

declared District 12 in North Carolina’s 1992 congressional 

  

! Reference to the Appendix of this Jurisdictional Statement hereafter 

will appear as “App. ___ a” 

 



  

2 

redistricting plan an unconstitutional racial gerrymander, but 

declined to consider a challenge to District 1 because no 

plaintiff had standing to challenge it. Following remand, the 

Shaw plaintiffs amended their complaint and added as 

plaintiffs persons residing in District 1.2 The same day, Mr. 

Cromartie, et al., filed this separate action, represented by the 

same attorney who represented them in Shaw. All proceedings 

in this action were stayed pending completion of the Shaw 

litigation. In the meantime, the Shaw district court allowed the 

1992 plan to be used for the 1996 election, but enjoined any 

further use of that plan and directed the General Assembly to 

submit a new plan for the district court’s approval. 

On March 31, 1997, the General Assembly enacted a new 

congressional districting plan, 1997 N.C. Sess. Laws, ch. 11 

(“1997 Plan”), App. 75a, and submitted the plan to the Shaw 

district court for approval. In the remedial proceedings, 

Cromartie, Muse, and the other Shaw co-plaintiffs were given 

an opportunity to litigate any constitutional challenges. The 

district court directed them to advise the court “whether they 

intend[ed] to claim that the [new] plan should not be approved 

by the court because it does not cure the constitutional defects 

in the former plan.” Shaw, et al. v. Hunt, et al., CA No. 92- 

202-CIV-5-BR, Order (E.D.N.C. June 9, 1997). They did not 

avail themselves of that opportunity. Instead, they contended 

that the 1997 Plan was unconstitutional but nevertheless 

requested the court to “not approve or otherwise rule on the 

validity” of the new plan, and to “dismiss this action without 

  

2 These new plaintiffs were Martin Cromartie, Thomas Chandler Muse 

and Glennes Dodge Weeks. App. 283a. 

    

 



  

3 

prejudice to the right of any person having standing to maintain 

a separate action attacking [its] constitutionality.” App. 308a. 

The state defendants actively opposed plaintiffs’ effort to 

reserve their challenges to the 1997 Plan for a new lawsuit. 

The district court in Shaw rejected plainitffs’ invitation to avoid 

ruling on the merits of District 12. Instead, it ordered the 1997 

Plan “APPROVED as having adequately remedied the specific 

constitutional violationrespecting former congressional District 

12.” App. 312a. No appeal was filed from that order or the 

identically worded judgment filed three days later on 

September 15, 1997. 

On October 17, 1997, the stay order in this case was 

dissolved by the district court, and on that same date plaintiffs 

filed an amended complaint claiming that Districts 1 and 12 in 

the 1997 Plan, just approved by the district court in Shaw, were 

unconstitutional. After the State’s 1998 election process had 

begun, plaintiffs in January and February moved for a 

preliminary injunction and for summary judgment. 

The district court, with Circuit Judge Sam J. Ervin, III, 

dissenting, granted summary judgment to plaintiffs, declared 

District 12 unconstitutionaland permanently enjoined the State 

from conducting any primary or general election under the 

1997 Plan. This Court noted probable jurisdictionand reversed 

the district court’s summary judgment. Hunt v. Cromartie, 526 

U.S. 541, 119 S. Ct. 1545 (1999) (“Cromartie I’).2 

  

3 Asa consequence of the failure to stay the district court’s summary 
judgment order, the General Assembly was required to enact an interim 

congressional districting plan for the 1998 election. 1998 N.C. Sess. Laws, 

ch. 2 (“1998 Plan”). Thereafter,the 1998 congressionaldistricting elections 

were held under the 1998 Plan pursuant to a truncated (cont’d . . .) 

 



  

4 

Following this Court’s reversal of the 1998 summary 

judgment order, the district court established a schedule for 

discovery to be conducted prior to October 2, 1999, and for 

trial to be held the week of November 1, 1999. After the 

untimely death of Circuit Judge Sam J. Ervin, III, United States 

District Court Judge Lacy H. Thornburg was assigned to the 

three-judge panel, sitting by designationas Circuit Judge. Trial 

was held from November 29 through December 1, 1999. 

Waiting over three months to issue its opinion after expediting 

trial, the district court filed essentially a carbon copy of its 

previous summary judgment opinion, with minimal cosmetic 

changes. It ruled unanimously that District 1 was 

constitutionally drawn, but a majority ruled that District 12 was: 

an unconstitutional racial gerrymander. The opinion enjoined 

defendants from using District 12 in future elections. Judge 

Thornburg wrote a concurring and dissenting opinion in which 

he agreed that District 1 was constitutional, although he 

disagreed with the majority’s conclusion that District 1 was 

subject to strict scrutiny. He dissented as to District 12, 

concluding plaintiffs had completely failed to meet their burden 

of showing race predominated in drawing the district. 

B. THE 1997 CONGRESSIONAL REDISTRICTING PROCESS 

The 1997 Plan was enacted by the General Assembly on 

March 31, 1997. It is a bipartisan plan, the product of a 

General Assembly divided between a majority Democratic 

Senate and a majority Republican House. @ When the 

  

schedule, with primary elections in September and no second or runoff 

primaries. The 1998 Plan ceased to be effective once this Court reversed 

the district court’s summary judgment invalidating the 1997 Plan. 

  
   



  

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redistricting process began, many did not believe that the 

politically divided legislature could successfully negotiate a 

plan and prevent redistricting from falling to the federal court 

by default. Nowhere in its opinion does the district court 

acknowledge this critical political reality. However, through 

the leadership efforts of Senator Roy Cooper, Chairman of the 

Senate Redistricting Committee, and Representative Edwin 

McMahan, Chairman of the House Redistricting Committee, a 

new plan was developed that cured the constitutional defects in 

the prior plan and garnered the support of a majority of the 

members of the Senate and a majority of the members of the 

House. From the beginning, Cooper and McMahan 

recognized that the only path by which a compromise could be 

reached was to craft a plan which, while curing the 

constitutional defects, also preserved the existing six-six 

partisan balance between Democrats and Republicans in the 

State’s congressional delegation. Because party registration is 

not a reliable predictor of voting behavior, the committees used 

voting results from a series of elections to craft Democratic and 

Republican districts.> App. 82a, 92a, 94a, 99a-100a, 138a, 

145a, 150a-151a. 

  

4 Although there was bipartisan support for the plan, twelve of 

seventeen African-Americanmembers of the House voted against the plan 

because they believed it did not adequately take into account the interests 
of the State’s African-American citizens. App. 140a, 152a-153a. 

5 The redistricting computer included voting data at the precinct level 

for. three state races: the 1988 Court of Appeals election, the 1988 

Lieutenant Governor election, and the 1990 United States Senate election. 

In addition, more recent election results were also available to the 

committee chairman through other sources. App. 83a-84a, 100a-102a, 

138a-139a. 

 



  

6 

Acutely conscious of their responsibilities under Shaw v. 

Reno, 509 U.S. 630 (1993) (“Shaw I’), the General Assembly’s 

first goal in enacting the 1997 Plan was to cure the defects in 

the 1992 plan by assuring that race did not predominate over 

traditional race-neutral redistricting criteria in the drawing of 

districts. Toward this end, the new plan was designed to: 

(1) avoid dividing precincts; (2) avoid dividing counties, except 

as needed to maintain partisan balance; (3) eliminate “cross- 

overs,” “double cross-overs,” long narrow corridors and other 

artificial means of maintaining contiguity; and (4) group 

together citizens with similar needs and interests. App. 82a- 

83a, 91a, 95a-96a, 102a-103a, 112a, 138a. 

The 1997 Plan creates six Democratic districts and six 

Republican districts, preserving the partisan cores of their 1992 

predecessors, yet their lines are significantly different. The 

most dramatic changes are in District 12, which contains less 

than 70% of its original population and only 41.6% of its 

original geographicarea. App. 103a-14a,122a. The 1997 Plan 

respects the traditional race-neutral redistricting criteria 

identified by the legislature: District 12 divides only one 

precinct, for partisan reasons; it includes parts of only six 

counties; its appearance is greatly improved by being shorter, 

wider and no longer held together by reliance on artificial 

devices like cross-overs and point contiguity. It comprises a 

district joining together citizens with similar needs and interests 

in the urban and industrialized areas along the interstate 

highways that connect Charlotte and the Piedmont Urban 

    

  

    

  
 



      

  
    

7 

Triad,’ areas in which the bulk of the State’s recent population 

growth has occurred. App. 84a, 139a. Moreover, because 

District 12 is built around major transportation corridors, it 

functions effectively for representatives and for constituents.’ 

District 12 is not a majority-minority district by any measure; 

it is, however, a Democratic district by every measure.’ 

Although the House and Senate initially differed on the 

question of extending District 12 either to Winston-Salem 

(Senate) or to High Point and Greensboro (House), ultimately 

it was decided to include all three parts of the Triad. This 

decision to include all of the Triad cities was purely partisan. 

  

¢ The Triad is composed of the cities of Winston-Salem in Forsyth 

County, and Greensboro and High Point in Guilford County. 

7 District 12's “focus upon major transportation corridors” makes its 

travel time compactness substantively better than that of many districts that 
technically score higher under mathematicalmeasures of compactness. See 

Def. Ex. 421. District 12 is similar in concept to Georgia’s three-judge 

court remedial District 11, which connects parts of 13 different counties, 

splitting six of them. Because the district is built around the “connecting 

cable” of Interstate 85, and has a distinctive “urban/suburban flavor,” its 

residents have “a palpable community of interests.” Johnson v. Miller, 922 

F. Supp. 1556, 1564, aff'd Abrams v. Johnson, 521 U.S. 74 (1997). 

8 Only 46.6% of its total population, 43.36% of its voting age 
population, and 45.6% of its registered voter population is African- 

American. App. 77a-79a. 

® Seventy-five percent of the district’sregistered voters are Democrats, 

and at least 62% of them voted for Democratic candidatesin the 1988 Court 

of Appeals election, the 1988 Lieutenant Governor’s election and the 1990 
United States Senate election. App. 80a. 

0 The extrinsic evidence in the record established that the initial Senate 

plan, Cooper 2.0, extended to Winston-Salem in Forsyth (cont’d . . .) 

 



  

8 

District 1 is another of the six Democratic districts 

established by the 1997 Plan and is a bare majority-minority 

district by one measure: 50.27% of its total population is 

African-American." District 1 respects traditional race-neutral 

redistricting criteria: it divides no precincts; divides only 10 

counties; it is compact; and artificial devices such as cross- 

overs and point contiguity were eliminated. Irregularitiesin the 

district lines are the result of incumbency protection and other 

political concerns. App. 109a-111a, 114-115a, 143a. It 

comprises a district with a community of voters defined by 

shared interests other than race'? joining together citizens with 

  

County and High Point in Guilford County, but did not extend to 

Greensboro. App. 23%9a. As a result changes were necessary to “fix” 

Guilford County which was divided into three separate districts. 
McMahan’s draft plan in the House already extended District 12 to High 

Point and Greensboro, but did not include Winston-Salem. App. 235a. 

When it was decided there was no good reason not to incorporate loyal 

Democrats from the entire Triad region, the undesirable triple split of 

Guilford County was eliminated and Cooper 3.0, which became the final 
Senate plan, was the resulting configuration. Additionally, this design did 

not waste Democratic voters in the surrounding heavily Republican 

districts; it satisfied the affected Republican incumbents; and it benefited 

the Democratic African-American incumbent. See App. 104a-108a, 121a, 

123a-124a,127-129a, 135a-136a, 146a-148a, 154a, 195a,200a. The move 

into Guilford County added 29 precincts--of which 18 were majority white. 

App. 199a. 

'' Early in the process it was recognized that a compact majority- 
minority district could be drawn in the area encompassed by District 1. See 

e.g, App. 89a, 108a-112a, 120a-121a, 130a-135a, 142a-146a, 227a, 23 1a, 

233a, 237a. 

2 The district also encompasses an area where the African-American 

population is sufficiently large and geographically compact to constitute a 

majority in a district. See App. 33a-34a. All but two of the (cont’d. ..) 

    

  

       



  

9 

similar needs and interests in the mostly rural and economically 

depressed counties in the State’s northern and central Coastal 

Plain. App. 84a-87a, 112a, 139a-140a. 

Agreement on the political goal of maintaining the six-six 

split in the State’s congressional delegation was the one critical 

factor that made it possible for the House and Senate to agree 

on a plan. It is also the factor that principally determined the 

location and shapes of the new districts. The intense 

negotiations between the House and Senate throughout the 

redistricting process centered on partisan politics, not race. The 

redistricting software allowed the drafters to view voting data 

by precinct on the computer screen. It was this information 

that was used to move precincts and draw district boundaries. 

Projected partisan performance and protection of incumbents 

dominated the process not only for challenged Districts 1 and 

12, but throughout the State. See App. 83a-87a, 91a-136a, 

138a-140a, 141a-154a, 201a-211a. 

C. THE DISTRICT COURT’S OPINION 

There is a stark contrast between the majority opinion of the 

district court and that of Judge Thornburg. Judge Thornburg, 

who is at least equally familiar with North Carolina’s local 

circumstances as the other judges, provided a thoughtful 

statement of the guiding legal principles, and, in applying the 

law to the evidence, concluded that plaintiffs failed to meet 

their burden of establishing that the legislature substantially 

  

counties included in the district are §5 covered counties, and the first 

districting plan submitted in 1991, which was objected to by the 

Department of Justice because it did not contain two majority-minority 

districts, included one majority-minority district in roughly the same area. 

 



  

10 

disregarded legitimate districting criteriaand subordinated such 

criteria to improper racial motivation. 

By contrast, intent on justifying its previous summary 

judgment blunder, the majority’s “new” opinion closely tracks 

its prior summary judgment opinion. Compare App. 11a-19a, 

246a-255a. It once again relies primarily on inferences it drew 

from the districts’ racial demographics and shapes to find that 

race predominated in the redistricting process. The court details 

at length the racial make-up of counties and towns split 

between District 12 and surrounding districts, as well as 

between District 1 and its surrounding districts. From these 

racial demographics the court accepted the proposition of 

plaintiffs’ expert Dr. Weber that a racial motivation 

predominated." 

To find a predominant racial motive, the district court also 

continued to focus on registration data fer a handful of 

  

As noted by Judge Thornburg, Weber’s “ingrained” personal 
bias, as well as his belief that legislative bodies should not be trusted to 

draw district lines, undermines the credibility of his conclusions and 

criticisms. App. 49a-50a & n.20. Weber's testimony also was fatally 

flawed for two other reasons. First, Weber presumed a predominant racial 

motive and failed to consider any hypothesis other than race because he 

incorrectly believed that the person drawing districts could only see racial 
data, when in fact the computer screens could display data on political 

breakdowns of voter registration and actual voter performance. See App. 

51a & n.23. Second, while the court accepted Dr. Weber’s methodology for 
analyzing the split counties and towns based on racial data, it failed to 

acknowledge the report by the State’s expert Dr. Peterson which used Dr. 

Weber's own methodology to analyze the same split counties and towns 

based on partisan registrationand voting data, rather than racial data. This 

analysis established equally conclusively that Democratic performance 

dictated the splitting of counties and towns in both Districts 12 and 1. App. 
169a-172a, 182a-185a. 

    

  

  

  
  
 



          

11 

precincts that border District 12, but were not included in the 

district despite having Democratic voter registration 

majorities." This rationale by the court fails again to 

acknowledge the political reality in North Carolina that 

Democratic registration is not a reliable predictor of voting 

behavior.” App. 173a-174a, 206a-207a. The value of the 

court’s analysis is further undermined by the data which shows 

that precincts within District 12 overall have higher democratic 

registrations than the ones preferred by the court." 

  

“4 The court rejected the systematic boundary segment analysis offered 

by Dr. Peterson because it ignored the “core” of the district. However, Dr. 

Peterson’s analysis responded directly to the court’s own analysis 

comparing precincts along the outside of the district boundary with those 
inside the boundary, except that Dr. Peterson looked at all of the precincts 

and all of the political data, registration as well as voting results. App. 
161a-167a, 178a-182a. See Cromartiel, 526 U.S. at __, 119 S. Ct. at 1550- 
51. If the analysis by Dr. Peterson is flawed because it ignores the “core” 

of the district, then the court’s analysis is similarly flawed. 

15 The district court also rejected the State’s description of District 12 
as a Democraticisland in a Republican sea based on what it describes as the 

“uncontroverted evidence” of party registration. This description is 

illustrated by maps showing the actual votes cast for Republican and 

Democratic candidates in the precincts bordering District 12. App. 213a- 

225a. The “exclusion” of the few bordering precincts with Democratic 
voting histories was explained by incumbency considerations. App. 204a- 

205a, 207a-209a. 

'6 The registration data relied on by the court demonstrates that, with 
only very rare exceptions, the “excluded” precincts consistently have 

Democratic registration below 60%, while the adjoining precincts included 

in the district consistently have higher Democratic registrationranging from 

60% to over 90%. On the rare occassions when a precinct within the 

district is between 50% and 60% in Democratic registration, the Democratic 

registration for each such district consistently is higher than that for its 

adjoining excluded precinct. Joint Exhibits 107-109. 

 



  

12 

Finally, the district court rejected out of hand the political 

explanations for District 12 because other “Democratic” 

alternatives could have been drawn. It also extrapolated 

inevitable considerations of race, especially with respect to 

District 1, into a sinister manipulation of district lines based 

predominantly on race. 

ARGUMENT 

I. THE DISTRICT COURT’S APPLICATION OF THE 

PREDOMINANCE STANDARD TO DISTRICT 12. 

With the 2000 Federal Census now in progress and the next 

round of redistricting fast approaching, providing guidance to 

the states and lower courts to achieve some modicum of 

consistency in the application of this Court’s predominance 

standard in Shaw litigation is a paramount consideration. The 

district court’s decision below to apply strict scrutiny to North 

Carolina’s District 12 presents substantial questions that 

warrant either plenary consideration or summary reversal. . 

The Constitution leaves the States with primary 

responsibility for the design of their federal congressional 

districts. U.S. CONST. art I, § 2; see Chapman v. Meier, 420 

U.S. 1, 27 (1975). Because federal court review of districting 

legislation represents a "serious intrusion" into this "most vital 

of local functions," Miller v. Johnson, 515 U.S. 900, 915 

(1995), this Court has made clear that the strict scrutiny of 

Shaw is not to be lightly applied. See id. at 915-16; Cromartie 

I. Rather, strict scrutiny is properly applied only when the 

plaintiff shows that race was the "predominant factor” in the 

design of the challenged district. See Bush v. Vera, 517 U.S. 

952, 959 (1996); Miller, 515 U.S. at 916. This is a 

    

  

    

       



  

          

13 

"demanding" standard, id. at 928-29 (O'Connor, J., concurring), 

and this Court has directed the lower courts to use 

"extraordinary caution" in applying it, id. at 916 (maj. op.); see 

id. at 928-29 (O'Connor, J., concurring) (explaining that the 

standard is designed to limit strict scrutiny to "extreme 

instances" of racial gerrymandering). 

In its eagerness to reach its preferred outcome, the court 

below failed to heed these directions. It wrongly equated mere 

consideration of race with racial gerrymandering, failed to 

conduct the "careful review" required in a "mixed motive" case, 

and failed to accord the State's legitimate districting 

preferences the deference to which this Court has said they are 

entitled. This Court should not tolerate such blatant disregard 

of its instructions. 

A. THE DISTRICT COURT WRONGLY EQUATED MERE 

CONSIDERATION OF RACE WITH RACIAL 

GERRYMANDERING 

In Bush, this Court held that proof that the State considered 

race in designing the challenged district is not sufficient to 

trigger the strict scrutiny of Shaw. See Bush, 517 U.S. at 958 

(plur. op.); id. at 993 (O’Connor, J., concurring); id. at 1008- 

09 (Stevens, J., dissenting); id. at 1064-66, 1072-74 (Souter, J., 

dissenting). A majority of this Court also held that proof the 

State intentionally designed the district to have a certain racial 

composition is not sufficient. See id. at 958 (plur. op.); id. at 

993 (O’Connor, J., concurring); id. at 1008-09 (Stevens, J., 

dissenting); id. at 1064-66, 1072-74 (Souter, J., dissenting). 

Instead, strict scrutiny applies only when the plaintiff 

establishes that the state substantially disregarded traditional 

redistricting criteria in drawing the challenged district lines, 

 



  

14 

and that it did so predominantly for reasons of race. Id. at 958- 

59, 962-63 (plur. op.); id. at 993-94 (O’ Connor, J., concurring); 

id. at 1011-12 (Stevens, J., dissenting); id. at 1058 (Souter, J., 

dissenting). 

On remand, the district court completely ignored these 

teachings, just as it had at the summary judgment stage. 

Instead, it once again permitted plaintiffs to satisfy their burden 

simply by showing that the challenged district was somewhat 

irregular in shape, and that the State had considered race in 

designing it. App. 23a-29a. It wrongly equated evidence that 

North Carolina's legislative leaders had considered race in 

designing the plan as a whole and that they were aware of the 

racial composition of the districts they were drawing, with 

evidence that race had predominated in that process." 

The district court’s application of the threshold test for strict 

scrutiny conflicts with this Court's decision in Bush. It also 

conflicts with the decisions of the other courts that have applied 

the “predominant factor” test in the wake of Bush. See, e.g., 

Chen v. City of Houston, 206 F.3d 502, 505-06 (5th Cir. 2000) 

  

"7 For example, the court cites Senator Cooper's statement that the plan 
"provides for a fair geographical, racial, and partisan balance" as evidence 

that race "predominated" over traditional political considerations in the 
districting process. App 8a.-9a, 27a; see also App. 129a-130a. Similarly, 

the court cites an e-mail message from Gerry Cohen to Senator Cooper, in 
which Cohen discusses the exact racial makeup of District 1 and states that 

he has "moved the Greensboro Black community into the 12th," as evidence 

that the Plan's "chief architects" employed "a methodology for segregating 
voters by race," which they "applied. . . to the 12th District." App.27a. As 

Judge Thornburg pointed out in dissent, App. 47a-48a & n.18, this evidence 

shows at best that race was considered--along with a number of other 

factors--indesigning District 12. It does not come close to establishing that 
race predominated over those other factors. 

    

  

       



  

    

15 

(reading Bush as establishing that proof the State considered 

race in the districting process, or even intentionally created a 

district of a certain racial composition, is not sufficient to 

trigger the strict scrutiny of Shaw); Theriot v. Parish of 

Jefferson, 185 F.3d 477, 488 (5th Cir. 1999) (same), petition 

for cert. filed, 68 U.S.L.W.3491 (U.S. Jan. 18, 2000) (No. 99- 

1203); Clark v. Calhoun Co., 88 F.3d 1393, 1404 n.2 (5th Cir. 

1996) (same); Quilter v. Voinovich, 981 F. Supp. 1032, 1044 

(N.D. Ohio 1997) (same), aff'd 523 U.S. 1043 (1998). 

B. THE DISTRICT COURT FAILED TO CONDUCT THE 

“CAREFUL REVIEW” REQUIRED IN A “MIXED MOTIVE” 

CASE 

In Bush, this Court recognized that the “predominant 

factor” standard is particularly difficult to apply in cases where 

the state concedes that race was a factor in the design of the 

challenged district, but asserts that other legitimate districting 

considerations--such as a desire to protect incumbents and a 

desire to produce a certain partisan balance in the delegation-- 

also played an important role. See 517 U.S. at 959 (plur. op.); 

id. at 1013 (Stevens, J., dissenting). The problem is 

particularly acute where, as here, the evidence reveals that there 

is a strong correlation between race and partisan political 

preference in the state. In such a case, the court must conduct 

a "careful review" of the evidence to determine whether it was 

race or politics that was most important in the district's design. 

Id. at 959, 967-68 (plur. op.); id. at 1031-32 (Stevens, J., 

dissenting); id. at 1060-61 (Souter, J., dissenting). Evidence 

that the district's lines correlate with race, and that the State 

was aware of that correlation, will not trigger the strict scrutiny 

of Shaw, if the evidence establishes that the lines were in fact 

 



  

16 

drawn on the basis of partisan political data, like past voting 

patterns, rather than race. Id. at 967-68 (plur.op.); id. at 1027- 

29 (Stevens, J., dissenting); id. at 1059-60 (Souter, J., 

dissenting). 

When this Court reversed the district court’s grant of 

summary judgment in this case, it specifically noted that this 

was a mixed motive case governed by the Bush analysis. See 

Cromartie I, 526 U.S. at ,119S.Ct. at 1551. It reiterated that 

evidence that there was a significant correlation between the 

district's lines and race, and that the State was aware of that 

correlation, would not suffice to trigger strict scrutiny, if the 

evidence also showed a high correlation between race and party 

preference on election day. /d. 

On remand, the district court completely ignored this aspect 

of Bush, just as it had at the summary judgment stage. Instead, 

it once again failed to conduct the "careful review" that Bush 

requires in a “mixed motive” case.'® Indeed, the opinion it 

issued on remand is virtually identical to the one it issued at the 

summary judgment stage. While it has been modified to 

include a brief summary of the evidence presented at trial, App. 

5a-10a, it is unchanged in its essential structure and reasoning, 

and it repeats many of the errors made in the earlier version, 

ignoring this Court's warnings in Cromartie 1."° 

  

'* Incredibly, the district court’s opinion on remand cites Bush only 

once -- for the proposition that a state cannot use race as a proxy for 

political characteristics in drawing district lines. App. 29an.9. 

' For example, the court continues to cite party registration data to 
Justify rejecting the State’s evidence that partisan political behavior, and not 
race, was the predominant factor in the design of District 12, App. 13a-14a, 

even though this Court criticized it for doing so at the (contd . . .) 

    

  

   



  

  

17 

The district court’s decision conflicts with this Court's 

explicit instructions in Cromartie I, with its decision in Bush, 

and with the decisions of other courts that have applied the 

“predominant factor” test in "mixed motive" cases after Bush. 

See, e.g., Chen, 206 F.3d. at 506-07 (reading Bush as requiring 

the court to engage in a more searching inquiry when the state 

has presented credible evidence of a nonracial explanation for 

the irregularities in the district's lines); Theriot, 185 F.3d at 

484-86 (conducting such a careful review). 

C. THE DISTRICT COURT FAILED TO GIVE SUFFICIENT 

DEFERENCE TO THE STATE'S DISTRICTING PREFERENCES 

As this Court has long recognized, the Constitution 

commits primary responsibility for the design of a state's 

congressional districts to the political branches of the state's 

own government, not the federal courts. See Miller, 515 U.S. 

at 915; Growe v. Emison, 507 U.S. 25, 34 (1993); Chapman, 

420 U.S. at 27. When a federal court reviews a state's plan for 

compliance with the Constitution, it is therefore required to 

give as much respect as possible to the state's districting 

preferences, Voinovich v. Quilter, 507 U.S. 146, 156 (1993); 

to give substantial deference to the state's judgment on how 

best to balance the competing interests at stake, Miller, 515 

U.S. at 915; and to resist the temptation to substitute its own 

judgment for that of the state's elected representatives, id. 

The court below failed utterly to abide by these time- 

honored principles. While it purported to respect the State's 

  

summary judgment stage, because the evidence showed that “in North 

Carolina, party registrationand party preferencedo not always correspond.” 

526 U.S.at _, 119 S.Ct. at 1551. 

 



  

18 

desire to create a Democratic district in the Piedmont Crescent 

area of the State, it failed to accord even minimal deference to 

the State legislature's judgment as to how best to design such 

a district. It questioned the legislature's judgment on the 

margin of error required to ensure that the district would be 

"safe" for Democratic candidates, insisting that the district was 

"too Democratic” and that the legislature was "wasting" 

Democratic votes. App. 116-118a; Trial Tr. at 162-63. It 

questioned the legislature's judgment on the precise precincts 

that should be included in the district, insisting that the district 

should have included some precincts that it did not. App. 13a, 

17a, 252.2 It questioned the legislature's judgment on how 

compact the district should be, insisting that the district should 

have been more compact.?! And it questioned the legislature's 

judgment that the district should preserve as much of the 

geographic core of former District 12 as possible, insisting that 

the district bore too much of a resemblance to its predecessor. 

App. 24a-25a. 

  

2 In the court's view, the district should have included several precincts 

in Mecklenburg, Forsyth, and Guilford Counties in which a majority of the 

registered voters were Democratic. As the undisputed evidence showed, 

however, the legislature used actual voting patterns, rather than party 

registration data, to decide which precincts to include. 

2! In the court's view, "a much more compact, solidly Democratic 12th 

District could have been created,” App. 26a, and therefore should have been 

created. 

2 The implication of the court's analysis, as the dissenting judge 

pointed out, is that the State was required to start over from scratch when 

it redrew its congressional districts in the remedial stage of Shaw II. App. 

43a-44a (calling this the "footprint" argument). That is not the law. As this 

Court has made clear in other contexts, the State was required (cont’d. . .) 

    
 



    
  

  

19 

The district court's decision flies in the face of a long line 

of redistricting cases from this Court. In addition, it runs afoul 

of this Court's repeated admonitions that a federal court 

exercising its power to enforce the Constitution against a state 

must give as much respect as possible to the state's interest in 

managing its own affairs. See, e.g., Missouri v. Jenkins, 515 

U.S. 70, 88 (1995); Milliken v. Bradley, 433 U.S. 267, 280-81 

(1977). This Court should not tolerate such an unwarranted 

intrusion into the State’s constitutionally conferred discretion 

to decide how best to design its congressional districts. 

D. THE EVIDENCE PRESENTED AT TRIAL WAS LEGALLY 
INSUFFICIENT TO SUPPORT A FINDING THAT RACE WAS 

THE PREDOMINANT FACTOR IN DESIGNING DISTRICT 12 

At trial, the plaintiffs based their claim that race had 

predominated in the design of District 12 on circumstantial 

evidence, just as they had at the summary judgment stage. 

Once again, they presented evidence that the district had a 

  

to do nothing more than make the adjustments necessary to bring the 

existing plan into compliance with the Constitution; it was not required to 

discard that plan altogether and start over on a clean slate. See Wise v. 

Lipscomb, 437 U.S. 535, 540 (1978) ("[A] State's freedom of choice to 

devise substitutes for an apportionment plan found unconstitutional . . . 

should not be restricted beyond the clear commands of the Equal Protection 

Clause"); Burns v. Richardson, 384 U.S. 73, 85 (1966) (same); see also 

Missouri v. Jenkins, 515 U.S. 70, 88 (1995) (in crafting a remedy for a 

constitutional violation, a court may not require the state to do more than 
is reasonably necessary to remedy the precise violation found); Milliken v. 

Bradley, 418 U.S. 717, 738 (1974) (same). A contrary rule would make it 

virtually impossible for a legislature to pass a remedial plan, for incumbents 

will always demand that the cores of their districts be preserved, and any 

plan that fails to do so is sure to face defeat in the legislature. App. 43a-44a 

& n.14. 

 



  

20 

somewhat irregular shape, that it had relatively low scores on 
standard mathematical tests of compactness, and that there was 
some correlation between its lines and race. Once again, the 
centerpiece of their circumstantial case was the testimony of 
Dr. Ronald Weber, who opined, based on his examination of 
certain demographic and political data, that race must have 
played a more important role in the design than partisan 
political preference. Once again, the court based its conclusion 
on an examination of a few select precincts along the district’s 
borders, rather than all of them, and on party registration 
figures, rather than actual voting results. Once again, plaintiffs 
attempted to bolster their circumstantial evidence with the 
testimony of various individuals who had not been involved in 
the district’s design, testimony which was completely lacking 
in probative value. App. 49a n.19. Once again, they failed to 
offer direct evidence that race had been the predominant factor 
in the district’s design. 

In contrast, the State presented substantial and credible 
evidence that considerations other than race--in particular, the 
desire to draw a "safe" district for Democrats in the Piedmont 
Crescent, without destroying the core of any existing district or 
pitting incumbents against each other--had been most important 
in the district's design. This evidence included extensive 
testimony from the two legislative leaders, App. 8la-154a, 

  

The only “direct” evidence plaintiffs produced were the references 
to race in Senator Cooper's statement to the House committee and the 
Cohen e-mail. See note 17 supra. As noted earlier, while this evidence 
shows that race was considered in the district's design, it says nothing about 
the relative importance of race vis a vis the various other factors that were 
also considered. 

    

  
    
 



  

  

  
  

  
  

21 

who were the principal architects of the 1997 plan, men whose 

credibility the court had no basis for doubting. See Miller, 515 

U.S. at 916 (districting is a difficult task requiring the exercise 

of political judgments necessary to balance competing interests 

and the good faith of the state legisulature must be presumed). 

It also included the testimony of an unbiased statistical expert, 

Dr. David Peterson, who concluded that the demographic and 

political data before the court did not support the proposition 

that race had been more important than politics in the district's 

design. App. 155a-194a; see also App. 48a. In addition, the 

State demonstrated through cross-examination that the opinion 

of the plaintiff's expert was based on incorrect and incomplete 

information and that his conclusions were dubious at best. 

App. 49a-52a. 

The evidence that race had predominated in the design of 

District 12 is dramatically weaker than that which this Court 

has previously found sufficient to trigger the strict scrutiny of 

Shaw.2* No other court has ever found the Miller standard 

satisfied by such a minimal showing. See, e.g., Chen, 206 F.3d 

502; Theriot, 185 F.3d 477; Quilter, 981 F. Supp. 1032. This 

  

M There was no evidence that the State had ever annouced that race was 

its dominant concern. Compare Shaw II, 517 U.S. at 906 (State’s 
preclearance submission announced that its “overriding purpose” was to 

create a majority-minority district); Bush, 517 U.S. at 969-70 (plur. op.) 

(State’s preclearance submission announced that its primary goal was to 

maximize black voting strength, and state officials testified in related 

litigation that race was the “primary consideration” in the challenged 

district's design). Nor was there any evidence that the Department of 

Justice pressured the State to make race its primary consideration. App. 

118a-119a. Compare Miller, 515 U.S. at 917-18 (detailing evidence that 

State had acquiesced to pressure from the Department of Justice to 

maximize black voting strength). 

 



  

22 

Court should make clear that the strict--and highly intrusive-- 

scrutiny of Shaw is not to be so lightly invoked. 

II. THE DISTRICT COURT’S APPLICATION OF STRICT 

SCRUTINY To DISTRICT 1. 

The district court’s decision to apply strict scrutiny to 

District 1 for the sole reason that it was intentionally designed 

as a majority-minority district presents a substantial question 

that warrants either plenary considerationor summary reversal. 

The Court in Shaw I acknowledged that districting plans are 

always drawn with an awareness of race, 509 U.S. at 646, and 

expressly refused to hold that “‘the intentional creation of 

majority-minority districts, without more’, always gives rise to 

an equal protection-claim.” Id. at 649. Since that time, a 

majority of this Court has stated that the intentional creation of 

a minority district does not automatically subject a redistricting 

plan to strict scrutiny. Several lower courts faced with the 

intentional creation of districts with a particular racial 

composition have followed this Court’s lead, holding that the 

intentional creation of minority districts based on Voting 

Rights Act considerations did not subordinate other traditional 

districting criteria and trigger strict scrutiny. See cases cited in 

Arg. IA, supra at 13-15. In stark contrast to the discussions in 

Chen, Theriot, Clark and Quilter, the district court below found 

that intentionally maintaining a total African-American 

population of over 50% in District 1 automatically required 

strict scrutiny. App. 31a. 

Drawing District 1 as a majority-minority district was 

predicated primarily on the knowledge that the State could 

“draw a nice, compact district that made geographic sense, that 

put together communities of interest, that was a strongly 

  
  
  

   



  

    
  

23 

leaning Democratic district, [and] that was slightly majority- 

minority.” App. 109a; see also note 11 supra? The district is 

compact; it is contiguous; and it recognizes political and other 

common interests of the people in the State’s inner coastal 

plain. The State’s adherence to traditional districting principles 

was conceded by the district court, which found that District 1 

satisfied objective measures of compactness and encompassed 

an area where the African-American population “is sufficiently 

large and geographically compact to constitute a majority in a 

congressional district,” App. 19a,33a-34a; and further, that the 

“irregularities” in the shape of District 1 were the result of 

protecting the incumbent, a white Republican, in District 3, 

App. 18a-19a. The district court’s acknowledgment that the 

district “also address[ed] other traditional, political 

considerations,” App. 34a, is at odds with its conclusion that 

considerations of race improperly predominated the districting 

process. 

The district court’s application of strict scrutiny to District 1 

demonstrates that confusion still exists among the lower courts 

on the question of whether every district intentionally drawn 

with Voting Rights Act considerations in mind must be 

subjected to strict scrutiny. Compare DeWitt v. Wilson, 856 F. 

Supp. 1409 (E.D. Cal. 1994) (strict scrutiny does not apply to 

  

25 The plaintiffs stipulated for purposes of trial that: the African- 

American population is politically cohesive; the white majority votes 

sufficiently as a block to often enable it to defeat the minoritys preferred 

candidate; for many decades African-Americans in North Carolina were 

victims of racial discrimination; and 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. 

App. 34a. 

 



  

24 

intentional creation of compact majority-minority districts 

based on Voting Rights Act considerations), summarily aff'd, 

515 U.S. 1170 (1995). This issue needs to be clarified for the 

state legislatures and the trial courts before the new round of 

redistricting begins in earnest after the 2000 Federal Census. 

III. CLAIM PRECLUSION BY VIRTUAL REPRESENTATION 

BARS PLAINTIFFS’ DISTRICT 12 CLAIM. 

This case raises important issues concerning the ability of 

persons “virtually represented” by the parties to a final 

judgment holding a state’s proposed redistricting plan 

constitutional to continue challenging that plan until they 

achieve the results they seek. This Court should grant plenary 

review and reverse the district court so that plaintiffs and others 

in similar situations cannot manipulate the federal judicial 

system to prevent the validity of a districting plan from being 

resolved unless they obtain a result to their liking. 

Under elementary principles of claim preclusion, the final 

judgment entered in Shaw extinguished any claims the Shaw 

plaintiffs had with respect to the validity of District 12 in the 

1997 Plan. This Court has explained that claim preclusion 

“rests upon considerations of economy of judicial time and 

public policy favoring the establishment of certainty in legal 

relations” and dictates that parties to a suit in which a final 

judgment is entered, and their privies, are forever “bound ‘not 

only as to every matter which was offered and received to 

sustain or defeat the claim or demand, but as to any other 

admissible matter which might have been offered for that 

purpose.”” Commissioner of Internal Revenue v. Sunnen, 333 

U.S. 591, 597 (1948) (emphasis added) 

    

  

   



  

    

25 

Contrary to these fundamental principles of claim 

preclusion, the district court held that Shaw’s final judgment 

had no preclusive effect, explaining that the Shaw court “was 

not presented with a continuing challenge to the redistricting 

plan.” App. 2a-3a. In so doing, the district court ignored the 

actual ruling of the Shaw court--thatthe 1997 Plan “adequately 

remedied the specific constitutional violations” this Court 

found in the prior District 12, App. 312a--as well as the 

elemental rule that claim preclusion bars claims that could have 

been brought. 

The Shaw plaintiffs’ choice not to assert their claims against 

the 1997 Plan could not save those claims from preclusion. 

The final judgment entered in Shaw equally bars the claims of 

the District 12 plaintiffs in this case, plaintiffs Froelich, 

Everett, and Linville’. Although they were not parties to 

Shaw, their interests were more than “adequately represented 

by” the Shaw plaintiffs under circumstances such that they 

were “in privity” with the Shaw plaintiffs. Cf Richards v. 

Jefferson County, 517 U.S. 793, 798 (1996). While “virtual 

representation” is the exception, this type of public interest case 

involving closely allied plaintiffs and tactical maneuvering 

presents a classic situation for its application. Plaintiff Froelich 

is a long-time business associate and friend of lead counsel 

Robinson Everett, who was also lead counsel and a plaintiff in 

  

2% Plaintiff Linville is in fact not a resident of District 12. App. 341a. 
Although the majority of the district court treated the issue as moot, see 

App. 31a n.10, the status of Mr. Linville’s role in this case was discussed 

by Judge Thornburg in his dissenting and concurring opinion. See App. 
64a-67a. Regardless, Linville’s stated reasons for objecting to the district 

clearly did not show any cognizable injury related to District 12 in the 1997 

Plan. See App. 339a-41a. 

 



  

26 

Shaw. Froelich knew of the Shaw litigation while it was going 

on, discussed it with his old friend, advised Everett he was 

willing to be a plaintiff, and participated in Shaw through a 

filed declaration. App. 335a-37a. Similarly, plaintiff Reuben 

Everett is a first cousin of attorney Everett. He too knew his 

cousin was litigating Shaw, and he became a plaintiff in this 

case because attorney Everett “called me and said he needed a 

plaintiff in Rowan County.” App. 331a-34a. 

The principle that persons such as plaintiffs Froelich and 

Everett may be bound through the concept of “virtual 

representation” is based on a variety of factors including 

“participation in the first litigation, apparent consent to be 
bound, apparent tactical maneuvering, [and] close relationships 
between the parties and nonparties.”” Jaffree v. Wallace, 837 

F.2d 1461, 1467 (11th Cir. 1988) (quoting 18 CHARLES ALAN 
WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & 
PROCEDURE § 4457 at 494-99 (2d ed. 1987)). Here, plaintiffs 

Froelich and Everett certainly “had actual . . . notice of the 
earlier litigation” and “the balance of the relevant equities tips 
in favor of preclusion.” Gonzalez v. Banco Cent. Corp., 27 

F.3d 751, 761 (1st Cir. 1994).% 

Significantly, two key additional factors here exemplify the 
situations in which plaintiffs may be appropriately held to be in 
privity through “virtual representation.” First, this is a public 

interest type of suit addressed to a general constitutional issue 

  

77 Lower courts have recognized that this result is entirely consistent 
with this Court’s decisions in Richards and South Central Bell Telephone 
Co. v. Alabama, 526 U.S. 160 (1999). See Tyus v. Schoemehl, 93 F.3d 449, 
455 (8th Cir. 1996); Louisiana Seafood Management v. Foster, 53 F. Supp. 
2d 872, 877 (E.D. La. 1999). 

    

  
    
 



  

    
  

27 

rather than the type of individualized (financial) harm this 

Court considered in Richards and South Central Bell. Thus, it 

involves the type of issue for which “the number of plaintiffs 

with standing is potentially limitless.” Tyus v. Schoemehl, 93 

F.3d 449, 456 (8th Cir. 1996). “Holding preclusion 

inapplicable in this context would encourage fence-sitting, 

because nonparties would benefit if the plaintiffs were 

successful but would not be penalized if the plaintiffs lost.” 

Id. (applying “virtual representation” to bar statutory and 

constitutional vote dilution claims against alderman 

boundaries) (quoting Petit v. City of Chicago, 766 F. Supp. 

607, 613 (N.D. Ill. 1991)). If the parties and attorneys involved 

in these public interest suits could simply continue to recruit 

new plaintiffs to pursue the same challenges, such “claims 

would assume immortality.” Los Angeles Branch NAACP v. 

Los Angeles Unified School Dist., 750 F.2d 731, 741 (9th Cir. 

1984) (applying “virtual representation” in school 

desegregation context). See also NAACP, Minneapolis Branch 

v. Metropolitan Council, 125 F.3d 1171 (8th Cir. 1997) 

(segregated housing and education); NAACP v. Hunt, 891 F.2d 

1555 (11th Cir. 1990) (flying of confederate flag); Louisiana 

Seafood Management v. Foster, 53 F. Supp. 2d 872 (E.D.La. 

1999) (gill-net ban law); Petit, 766 F. Supp. 607 (alleged 

discrimination in hiring and promoting); Environmental 

Defense Fund, Inc. v. Alexander, 501 F. Supp. 742 (N.D. Miss. 

1980) (environmental challenge to navigation project). 

  

2 The benefit to nonparties was both recognized and intended by lead 

plaintiff Cromartie, who viewed both Shaw and this suit as being very much 

like class actions in which they were effectively representing all the voters 

of the districts and even of the State. App. 327a-28a. 

 



  

28 

The second critical additional factor present here is the 

tactical maneuvering by which plaintiffs and their allies sought 

to achieve an advantage allowing them to continue litigating 

with a clean slate. Thus, the Shaw-Cromartie challengers 

refused to pursue their claims against the 1997 Plan in Shaw, 

choosing instead to pursue them in this suit with the same 

counsel, with overlapping plaintiffs and with additional 

plaintiffs closely affiliated with the Shaw litigants.” Such 

tactical maneuvering weighs in favor of applying “virtual 

representation” because, otherwise, “it would allow various 

members of a coordinated group to bring separate lawsuits in 

the hope that one member of the group would eventually be 

successful, benefiting the entire group.” Tyus, 93 F.3d at 457. 

See also Petit, 766 F. Supp. at 612-13; Louisiana Seafood 

Management, 53 F. Supp. at 884. The federal courts are not 

playgrounds in which litigants can frolic until they maneuver 

their claims into a favorable position, and this Court should not 

allow such manipulative efforts to succeed. | 

The policies behind the doctrine of claim preclusion are at 

their most compelling when the claims in question seek to 

  

® Significantly, the additional District 1 plaintiffs were friends of 

Cromartie and Muse and recruited by them. App. 323a-24a, 328a-30a, 

343a, 345a-46a. Moreover, counsel Robinson Everett has been lead 

counsel throughout these cases and indeed appears to have been the guiding 

force from its inception, serving also as a plaintiff in Shaw and consulting 

with and at times hand-picking the Cromartie plaintiffs. App. 327a, 333a. 

See Tyus, 93 F.3d at 457; Petit, 766 F. Supp. at 612 n. 6. Of course, mere 

identity of counsel does not necessarily result in claim preclusion. See 

South Central Bell Tel. Co., 119 S. Ct. at 1185. In this case, however, the 

identity of counsel is part of the total picture of close affiliation establishing 

that plaintiffs’ interests were more than adequately represented in Shaw and 
that it is equitable for them to be bound by the results in Shaw. 

    
 



  

  

29 

interfere with a state’s electoral processes. The strong public 

interest in the orderly administration of the nation’s electoral 

machinery requires efficient and decisive resolution of disputes 

regarding these matters. In this case, plaintiffs were more than 

adequately represented in Shaw, and they should not be 

allowed to exploit the judicial system to delay final resolution 

of the legal controversy over North Carolina’s congressional 

districts, contrary to claim preclusion’s basic purposes of 

judicial economy and finality. This Court should grant plenary 

review or summarily reverse because plaintiffs’ claims are 

barred by claim preclusion based on “virtual representation.” 

IV. THE DISTRICT COURT’S DECISION ON REMEDY. 

The district court’s decision to require the State of North 

Carolina to redraw its congressional districting plan yet again -- 

in the middle of its election cycle and on the eve of the new 

decade -- was an egregious abuse of its remedial discretion. 

This Court has long made clear that, in crafting a remedy for a 

constitutional violation in a state’s existing districting schemes, 

a federal court must take care not to unduly disrupt the state’s 

election machinery by ordering it to make “precipitate 

changes.” Reynolds v. Sims, 377 U.S. 533, 585 (1964). Once 

“an impending election is imminent and a State’s election 

machinery is already in progress, equitable considerations 

might justify a court in withholding the granting of 

immediately effective relief.” Id. The district court flouted this 

advice by ordering adoption of a new plan for 2000 even 

though candidate filing had closed, campaigning had begun, 

and absentee balloting was soon to begin. North Carolina had 

already been improperly forced to hold its 1998 elections under 

 



  

30 

a plan different from both the 1996 elections and the 1997 Plan. 

Requiring yet another plan this year-- which now would result 

in voiding this year’s May primaries -- could only further 

confuse voters, limit candidates’ abilities to communicate with 

those voters, and depress voter turnout. 

The district court’s decision egregiously forces the State to 

adopt yet another new congressional plan when the new plan 

would be based on outdated census data from ten years ago and 

would itself be replaced in 2002 by a plan based on 2000 

census data. See Abrams v. Johnson, 521 U.S. 74, 100-01 

(1997) (noting effect of census data six years out of date on 

equipopulation claim). This Court should summarily reverse 

the district court’s remedial order and permit North Carolina to 

go forward with its 2000 elections under the 1997 Plan. 

CONCLUSION 

For the forgoing reasons, this Court should summarily 

reverse the judgment of the district court. In the alternative, 

this Court should note probable jurisdiction of this appeal. 

MICHAEL F. EASLEY 

North Carolina Attorney General 

Tiare B. Smiley*, Special Deputy Attorney General 

Norma S. Harrell, Special Deputy Attorney General 

Melissa L. Saunders, Special Counsel 

May 19, 2000 *Counsel of Record 

    
 



APPENDIX 

 



 



  

APPENDIX 

Opinions for the United States District Court for the 

Eastern District of North Carolina, March 7, 2000 

Memorandum Opinion ..........ceoeeenns ies la 

Concurrence and Dissent ......c...coeeeeeenes 37a 

Notice of Appeal, March 10,2000 ................- 69a 

Judgment of the United States District Court for the 

Eastern District of North Carolina, March 8,2000 ..... 71a 

US. ConsT. amend. XIV, §1 ........c00nenvnennn 73a 

97 House/Senate Plan A Map [1997 Plan] 

(Joint Exhibit 102A) .......cnvcrenenrnrvnneernes 75a 

97 House/Senate Plan A Statistical Reports (excerpts) 

(oint Exhibit 102B) .....c.--cihuanrenrernnenns 77a 

Affidavit of Roy A. Cooper, III, with attached 

map “North Carolina Counties by Percent 

Population Black with 1st Congressional 

District Overlay” (without resume) 

(Defendants’ Exhibit 400 & Joint Exhibit 125) .... 8la 

Roy A. Cooper, II, Trial Testimony 

(selected POTIONS) «...ovvuvnennrnrnenennnns 91a 

Affidavit of W. Edwin McMahan (without resume) 

(Defendants’ Exhibit 01) .. 0. iv snr atdaa niin, 137a 

W. Edwin McMahan, Trial Testimony 

(selected POTIONS) ....vvvvnnrenrnnrrn ren 141a 

 



   
Affidavit of David W. Peterson, PhD 

(without attachment) (Exhibit 19) .............. e+ 155a 

Second Affidavit of David W. Peterson, PhD 

(without Table and Charts) (Exhibit20) ............ 169a 

David W. Peterson, PhD, Trial Testimony 

Selected POTIONS) vr. ose avh nh  eae 177a 

Percent Democrat in Split Counties by County 
Defendants’ Bxhibit 433)... coche Po ss 189a 

Percent Democrat in Split Municipalities by City 

or Town (Defendants’ Exhibit 434) ................ 191a 

Gerry Cohen, Trial Testimony (selected portions) .... 195a 

Defendants’ Response to Plaintiffs’ First Set of 

Interrogatories (selected portions) ................ 201a 

Republican Victories in Forsyth County 

Precincts Abutting District 12 

(Joint Exhibit 140 excerpis) ...... cuisine stuns 213a 

Republican Victories in Guilford County 
Precincts Abutting District 12 

Joint Exhibit 141 excerpts) oli. cnr nina 217a 

Republican Victories in Mecklenburg/Cabarrus 

County Precincts Abutting District 12 : 
{Joint Exhibit 142 excerpts)................] ane 221a 

1997 Congressional Plan A [Cooper Plan] 

District 1 Focus Map (Joint Exhibit 104B) ......... 227a 

    
 



  

1997 Congressional Plan A [Cooper Plan] 

District 12 Focus Map (Joint Exhibit 104C) ......... 229a 

1997 Congressional Plan A [Cooper Plan] 

Statistical Reports (excerpts) (Joint Exhibit 104D) ... 23la 

House 97 Congressional Plan A.1 [McMahan Plan] 

District 1 Focus Map (Joint Exhibit 105B) ......... 233a 

House 97 Congressional Plan A.1 [McMahan Plan] 

District 12 Focus Map (Joint Exhibit 105C) ......... 235a 

House 97 Congressional Plan A.1 [McMahan Plan] 

Statistical Reports (excerpts) (Joint Exhibit 105D) ... 237 

97 Congress Cooper 2.0 District 12 Focus Map 

(Joint Exhibit 129C) ...........civvnnnnrnnenns . 2392 

97 Congress Cooper 2.0 Statistical Reports (excerpts) 

(Joint Exhibit 129D) .........cvnvreiniinnnnnnen 241a 

Cromartie, et al. v. Hunt, et al., CA No.4:96-CV-104-(BO)3, 

Opinions of United States District Court for the Eastern 

District of North Carolina, April 14, 1998 

Memorandum Opinion ..........coeveeieeenn 243a 

DISSENL oc svn nvnies snmsssnssrrediesnsrnne 265a 

Shaw et al. v. Hunt, et al., CA No. 92-202-CIV-5-BR, 

Second Amended Complaint for Preliminary and 

Permanent Injunction, July 9, 10068: cf a athens 283a 

Shaw et al. v. Hunt, et al., CA No. 92-202-CIV-5-BR, 

Plaintiffs’ Response to Order of June 9, 1997, 

June 19,1997 ............ ESTE TERRE RRR RRY 305a 

 



  

Shaw et al. v. Hunt, et al., CA No. 92-202-CIV-5-BR, 

Order of United States District Court for the Eastern 

District of North Carolina, September 12,1997 ...... 311a 

Shaw et al. v. Hunt, et al., CA No. 92-202-CIV-5-BR, 

Memorandum Opinion of United States District Court 
for the Eastern District of North Carolina, 

September 12, 1997 4 ct esse Canin anes 313a 

Joel K. Bourne, Deposition Transcript 

(SCleCIC DOTHONSY “. . ..  s streets inna vsnes ini 323a 

Martin Cromartie, Deposition Transcript 

(Selected POTHONS) . ccs tvs ve Taner anna s vest an 325a 

Reuben O. Everette, Deposition Transcript 

(Selected pOtHONSY Ls, ot den al dan es 331a 

J.H. Froelich, Deposition Transcript 

(SeleCledPOTHONSY corre vaio sons s sivie «liiatn iin 's 335a 

James Ronald Linville, Deposition Transcript 

(selected portions)... uv. trou. Suivi ss Se 339a 

Thomas Chandler Muse, Deposition Transcript 

(selected PpOrHONSY oovicoe vies vi ohmi ves Jl vis tii 343a 

Alma Lois Weaver, Deposition Transcript 

(selected pOTHONSY ul ch Lives vs Bsa chine is 345a 

    

   



    

la 

OPINIONS OF UNITED STATES DISTRICT COURT FOR THE 

EASTERN DISTRICT OF NORTH CAROLINA, MARCH 7, 2000 

[Caption Omitted in Printing] 

OPINION 

BOYLE, Chief District Judge: 

This matter is before the Court on remand from the United 

States Supreme Court's order holding that the underlying case 

was not suited for summary dispositionand ordering this Court 

to conduct further proceedings. Hunt v. Cromartie, 526 U.S. 

541, 119 S. Ct. 1545, 143 L.Ed. 731 (1999). The underlying 

action challenges the congressional redistricting plan enacted 

by the General Assembly of the State of North Carolina on 

March 31, 1997, contending that it violates the Equal 

Protection Clause of the Fourteenth Amendment, and relying 

on the line of cases represented by Shaw v. Hunt, 517 U.S. 899, 

116 S. Ct. 1894, 135 L.Ed.2d 207 (1996) ("Shaw 11"), and 

Miller v. Johnson, 515 U.S. 900, 904, 115 S. Ct. 2475, 2482, 

132 L.Ed.2d 762 (1995). 

Following the Supreme Court's decision to remand, the 

parties undertook a new round of discovery, ending in October, 

1999. Between November 29 and December 1, 1999, a trial 

was held before this Court. 

BACKGROUND 

In Shaw II the United States Supreme Court held that the 

Twelfth Congressional District created by the 1992 

Congressional Redistricting Plan (hereinafter, the ” 1992 Plan") 

 



  

2a 

was race based and could not survive the required "strict 

scrutiny." 517 U.S. 899, 116 S. Ct. 1894. The five plaintiffs in 

Shaw lacked standing to attack the other majority-minority 

district (the First Congressional District under the 1992 Plan) 

because they were not registered voters in the district. Id. 

Soon after the Supreme Court ruled in Shaw II, three 

residents of Tarboro, North Carolina, filed the original 

Complaint in this action on July 3, 1996. These original 

Plaintiffs resided in the First Congressional District 

(alternatively, "District 1 ") as it existed under North Carolina's 

1992 Plan. The Plaintiffs charged that the First Congressional 

District violated their rights to equal protection under the 

United States Constitution because race predominated in the 

drawing of the District. The action was stayed pending 

resolution of remand proceedings in Shaw v. Hunt, and on July 

9, 1996, the same three Tarboro residents joined the Plaintiffs 

in Shaw in filing an Amended Complaint in that case, similarly 

challenging District 1. ; 

By Order dated September 12, 1997, the three-judge panel 

in Shaw approved a congressional redistricting plan enacted on 

March 31, 1997, by the General Assembly as a remedy for the 

constitutional violation found by the Supreme Court to exist in 

the Twelfth Congressional District (alternatively, "District 

12"). The Shaw three-judge panel also dismissed without 

prejudice, as moot, the plaintiffs’ claim that the First 

Congressional District in the 1992 Plan was unconstitutional. 

Although it was a final order, the September 12, 1997, decision 

of the Shaw three-judge panel was not preclusive of the instant 

    

  
  

 



    

3a 

cause of action, as the panel was not presented with a 

continuing challenge to the redistricting plan.' 

On October 17, 1997, this Court dissolved the stay 

previously entered in this matter. On the same day, two of the 

original three Plaintiffs, along with four residents of District 12, 

filed an amended Complaint challenging the 1997 remedial 

congressional redistricting plan (the "1997 Plan"), and seeking 

a declaration that the First and Twelfth Congressional Districts 

in the 1997 Plan are unconstitutional racial gerrymanders. A 

three-judge panel was designated by order of the Chief Judge 

of the Fourth Circuit Court of Appeals, dated January 23, 1998. 

The Plaintiffs moved for a preliminary injunction on 

January 30, 1998, and for summary judgment on February 5, 

1998. Defendants filed for summary judgment on March 2, 

1998, and a hearing on these motions was held on March 31, 

1998. On April 3, 1998, a majority of the three-judge panel 

issued an Order and Permanent Injunction finding that the 

Twelfth Congressional District under the 1997 Plan was 

unconstitutional and granting Plaintiffs summary judgment as 

  

1 In its final Memorandum Opinion the three-judge panel in Shaw 

noted that there was "no substantive challenge to the [1997] plan by any 

party to this action," and closed by explicitly "noting the limited basis of the 

approval of the plan that we are empowered to give in the context of this 

litigation. It is limited by the dimensions of this civil action as that is 

defined by the parties and the claims properly before us. Here, that means 

that we only approve the plan as an adequate remedy for the specific 

violation of the individual equal protection rights of those plaintiffs who 

successfully challenged the legislature's creation of former District 12. Our 

approval thus does not-cannot-run beyond the plan's remedial adequacy 

with respect to those parties and the equal protection violation found as to 

former District 12." Shaw v. Hunt, No. 92202-CIV-5-BR, at 8 (E.D.N.C. 

Sept. 12, 1997) 

 



  

4a 

to that district. The Order and Permanent Injunction also 

granted Plaintiffs’ Motion for Preliminary Injunction and 

granted Plaintiffs’ request for a Permanent Injunction, thereby 

enjoining Defendants from conducting any primary or general 

election for congressional offices under the 1997 Plan. Finally, 

the Court ordered the parties to file a written submission 

addressing an appropriate time period within which the North 

Carolina General Assembly would be allowed the opportunity 

to correct the constitutional defects in the 1997 Plan, and to 

present a proposed election schedule to follow redistricting 

which provided for a primary election process culminating in 

a general congressional election to be held on the date of the 

previously scheduled general election. 

Defendants filed a Motion to Stay the April 3 Order, which 

was denied by this Court on April 6, 1998. On that date, 

Defendants appealed the denial of their Motion to Stay to the 

United States Supreme Court, which upheld this Court's denial 

on April 13, 1998. Hunt v. Cromartie, 523 U. 8. 1068, 118 

S.Ct. 1510, 140 L.Ed.2d 662 (1998). 

On April 14, 1998, this Court issued a Memorandum and 

Opinion issuing its findings of fact and conclusions of law 

regarding the April 3, 1998 order and denying Plaintiffs’ 

Motion for Summary Judgment with regard to the First 

Congressional District under the 1997 Plan. On April 17, 

1998, Defendants filed a motion asking the Court to reconsider 

its April 6 order. On April 21, this Motion to Reconsider was 

denied. 

  

   



  

5a 

On April 21, 1998, the Court issued a scheduling order, 

requiring that the General Assembly either submit a new plan 

to the Court and the Department of Justice by May 22, 1998 or 

the Court would assume responsibility for drawing an interim 

plan. On May 22, 1998, Defendants submitted the 1998 

Congressional Redistricting Plan ("the 1998 Plan"). The 1998 

Plan contained a clause stating that, in the event that the United 

States Supreme Court found for the State in its appeal, the 1998 

Plan would no longer be ordered and thus North Carolina's 

congressional districts would revert to the 1997 Plan. 

On October 19, 1998, the Court granted a joint motion to 

stay all proceedings in this action pending a decision by the 

United States Supreme Court in Hunt v. Cromartie, docketed 

in the Supreme Court on September 16, 1998 as No. 98-450. 

On May 17, 1999 the United States Supreme Court entered 

an order holding that the underlying case was not suited for 

summary dispositionand ordering this Court to conduct further 

proceedings. Hunt v. Cromartie, 526 U.S. 541, 119 S. Ct. 

1545, 143 L.Ed. 731 (1999). 

In compliance with the Supreme Court's decision, a three 

day bench trial was held in this matter, from November 29 to 

December 1, 1999. Plaintiffs called eight witnesses. Plaintiffs’ 

first witness was Senator Hamilton Horton, a resident of 

Forsyth County and longtime member of the North Carolina 

General Assembly. Senator Horton testified as to his belief that 

Forsyth County and Winston-Salem were split along racial 

lines in the 1997 Plan and that District 12 was created with a 

predominantly racial motive. 

 



  

6a 

Plaintiffs’ second witness was Representative Steve Wood, 

a resident of High Point, North Carolina. Representative Wood 

testified that in 1997 he served in the North Carolina General 

Assembly in a leadership position. Representative Wood ran 

for Congress in the Twelfth District under the 1998 Plan and is 

convinced that the 1997 Plan divided High Point and Guilford 

County along racial lines for a predominantly racial motive. 

As their third witness, Plaintiffs called Representative John 

Weatherly of King's Mountain, North Carolina, a member of 

the North Carolina General assembly during the consideration 

of the 1997 and 1998 redistricting plans who had previously 

served on a commission considering the State's legislative 

process. Representative Weatherly testified that he introduced 

legislation to facilitate the redistricting process through the use 

of a redistricting commission and that, on the basis of his 

political and legislative experience, he believed that both 

Districts 1 and 12 were drawn with a predominantly racial 

motive. : 

Plaintiffs’ fourth witness was R. O. Everett, a longtime 

resident of Salisbury, North Carolina who has been active in 

politics and has run for the state legislature. Mr. Everett 

testified that he was familiar with the congressional districts in 

the Salisbury and Rowan County areas and is convinced that 

District 12 was drawn with a predominantly racial motive. 

Plaintiffs’ fifth witness was J.H. Froelich Jr., a lifetime 

resident of High Point, NC who testified that he has been active 

in state and local politics and believes that Guilford County 

  

   



    

7a 

was divided with a predominantly racial motive in both the 

1992 and 1997 Plans and that the 1997 Plan's District 12 was 

drawn with a predominantly racial motive. 

Plaintiffs’ sixth witness was Neil Williams, a resident of 

Charlotte who served on its city council, is familiar with the 

Mecklenburg County precincts, and ran for Congress in the 

1992 Plan's District 9. Mr. Williams testified that he is 

convinced that Mecklenburg County was divided along racial 

lines with a predominant racial motive and that the 1997 Plan's 

District 12 was drawn with a predominantly racial motive. 

Plaintiffs’ seventh witness was Don Frey of the North 

Carolina General Assembly's Information Systems Division, 

who presented statistical data from the General Assembly's 

database, including relative numbers of persons moved from 

the 1992 Plan to the 1997 Plan, and current precincts split by 

the 1997 Plan. 

Plaintiffs’ eighth and final witness, whose testimony 

carried over into the second day of trial, was Dr. Ronald Weber 

of the University of Wisconsin. Dr. Weber testified as an 

expert political scientist who has studied, consulted on, and 

testified in many redistricting cases. Referring to maps and 

other data, Dr. Weber testified that race predominated in the 

construction of Districts 1 and 12 under the 1997 Plan, and that 

cities, counties and precincts were divided along racial lines. 

Dr. Weber concluded that no motivation other than race could 

adequately explain the legislature's decisions to include, 

exclude, or split certain precincts. 

Beginning on November 30, the second day of trial, the 

Defendants called four witnesses. 

 



  

8a 

Defendants’ first witness was Senator Roy Asberry Cooper, 

III, who testified as to the legislative history and enactment of 

the 1997 Plan in the North Carolina Senate, focusing on the 

creation of Districts 1 and 12. Senator Cooper testified that he 

was unsure whether he could get the 1997 Plan pre-cleared by 

the Justice Department without creating a majority-minority 

First District. Senator Cooper's testimony also brought to light 

a February 10, 1997 e-mail message (the "Cohen-Cooper E- 

mail") sent to him by Director of Bill Drafting Gerry Cohen, a 

state employee charged with the technical aspect of drawing the 

districtsin 1991, 1992, and 1997 Plans. The Cohen-Cooper E- 

mail stated, in part, that "By shifting areas in Beaufort, Pitt, 

Craven and Jones Counties, I was able to boost the minority 

percentage in the first district from 48.1 % to 49.25%. The 

district was only plurality white, as the white percentage was 

49.67%." (Exhibit 58; Trial Transcript at 438) The e-mail 

continues, "This was all the district could be improved by 

switching between the 1st and 3rd unless I went into 

Pasquotank, Perquimans, or Camden. I was able to make the 

district plurality black by switching precincts between the 1st 

and 4th . . . (Exhibit 58, Trial Transcript at 438) The Cohen- 

Cooper e-mail also states that "I [Cohen] have moved 

Greensboro Black community into the 12th , and now need to 

take bout [sic] 60,000 out of the 12th. I await your directionon 

this.” (Exhibit 58, Trial Transcript at 412) 

The Senator stated that he did not remember receiving the 

Cohen-Cooper e-mail and denied having given Cohen "specific 

instructions." (Trial Transcript at 413, 438) 

Additionally, Senator Cooper was questioned about a 

statement he made to the March 25, 1997 meeting of the House 

  
    

  
  

A 

t 

I 

C 

C 

C 

 



  
    
  

Oa 

congressional redistricting committee, in which he argued that 

the 1997 Plan "provides for a fair geographical, racial and 

partisan balance throughout the state of North Carolina.” (Trial 

Transcript at 429) The Senator claimed that the term "partisan 

balance" referred to maintaining the six-six Democrat- 

Republican split in the congressional delegation, but denied 

that the term "racial balance" would refer to maintaining the 

ten-two balance between whites and African Americans. (Trial 

Transcript at 429-30) Senator Cooper admitted that race was 

"one of the factors that was considered" in drafting the 1997 

Plan, and that but denied that it was the predominant factor. 

(Trial Transcript at 430) 

Defendants began the third day of trial with their second 

witness, Representative W. Edwin McMahan, who testified as 

to the legislative history and enactment of the 1997 Plan in the 

North Carolina House of Representatives, especially the 

creation of Districts 1 and 12. Representative McMahan 

claimed that race was not the predominant factor in the creation 

of those districts. 

Defendants’ third witness was Dr. David Peterson of the 

University of North Carolina at Chapel Hill's Department of 

Geography and Sciences. Dr. Peterson presented a statistical 

analysis of data regarding the question whether race 

predominated over party affiliation in the construction of the 

1997 Plan's District 12. Dr. Peterson also discussed the 

variance between Democratic registration and voting behavior, 

and analyzed Dr. Weber's reasoning on the predominance of 

race as a factor in the creation of District 12. In contrast to Dr. 

Weber, Dr. Peterson's conclusion was that political 

considerations, rather than race, might possibly account for the 

 



  

10a 

legislature's decisions to include, exclude, or split certain 

precincts. 

Defendants’ final witness was Gerry Cohen, Director of 

Bill Drafting for the North Carolina General Assembly. Mr. 

Cohen testified as to the legislative history and enactment of 

the 1997 Plan, especially with regard to Districts 1 and 12, as 

well as the technical aspects of redistricting, including the 

computer systems used. 

FACTS 

As discussed above, in 1992 the State of North Carolina 

established a new set of proposed congressional districts. This 

1992 Plan created two districts, the First and the Twelfth, that 

were challenged by a group of plaintiffs who claimed that the 

State had deliberately segregated voters into districts on the 

basis of race without compelling justification. In Shaw v. Reno 

("Shaw I"), the United States Supreme Court held that this 

allegation stated a claim for relief under the Equal Protection 

Clause of the Fourteenth Amendment. 509 U.S. 630, 658, 113 

S.Ct. 2816, 125 L.Ed.2d 511 (1993). 

On remand, the District Court found that North Carolina's 

Twelfth District created by the 1992 Plan classified voters by 

race, but that the plaintiffs lacked standing to challenge the 

First District. In Shaw II, the United States Supreme Court 

affirmed this finding and farther held that the State had not 

established that its reapportionment scheme was narrowly 

tailored to serve a compelling state interest, and therefore the 

1992 Plan failed the requisite "strict scrutiny" test. 517 U.S. 

899,116 S.Ct. 1894. 

  
  

   



  

  

11a 

The North Carolina General Assembly
 convened in regular 

session on January 29, 1997, and formed redistricting 

committees to address the defects found in the 1992 Plan. 

These newly formed House and Senate Committees 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. Affidavit of Senator Roy A. Cooper, III ("Cooper 

Aft") 3. In 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. Cooper Aff. 195, 8,10, 14; Affidavit 

of Gary 0. Bartlett, Executive Secretary-Director of the State 

Board of Elections ("Bartlett Aff."), Vol. I Commentary 

at 9-10. 

To achieve the second goal, the redistricting committees 

drew the new plan (1) to avoid placing two incumbents in the 

same district and (2) to preserve the partisan core of the 

existing districts to the extent consistent with the goal of curing 

the defects in the old plan. Cooper Aff. §14. The plan as 

enacted largely reflects these directives: incumbent 

Congressmen generally do not reside in the same district, and 

each district retains at least 60% of the population of the old 

district. Cooper Aff. 8, Affidavit of Representative W. Edwin 

McMahan ("McMahan Aff.") §7. 

I The Twelfth Congressional District 

District 12 is one of the six predominantly Democratic 

districts established by the 1997 Plan to maintain the 6-6 

 



  

12a 

partisan division in North Carolina's congressional delegation. 

District 12 is not a majority-minority district,” but 46.67 

percent of its total population is African-American. Bartlett 

Aff., Vol. I Commentary at 10 and 11. District 12 is composed 

of six counties, all of them split in the 1997 Plan. The racial 

composition of the parts of the six subdivided counties 

assigned to District 12 include three with parts over 50 percent 

African-American, and three in which the African-American 

percentage is under 50 percent. Declaration of Ronald E. 

Webber [sic] ("Webber [sic] Dec.") 18. However, almost 75 

percent of the total population in District 12 comes from the 

three county parts which are majority African-American in 

population: Mecklenburg, Forsyth, and Guilford counties. 1d. 

The other three county parts (Davidson, Iredell, and Rowan) 

have narrow corridors which pick up as many African- 

Americans as are needed for the district to reach its ideal size.’ 

Id. 

Where 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 

population assigned to neighboring District 5 is African- 

American. Id. 20. Similarly, Mecklenburg County is split so 

  

2 The Twelfth is not a majority-minority district as measured by 

any of three possible criteria. African-Americans constitute 47 percent of 
the total population of District 12, 43 percent of the voting age population 

of the District, and 46 percent of the registered voters in the District. 

Peterson Aff., at 8. 

3 An equitably populated congressional district in North Carolina 

needs a total population of about 552,386 persons using 1990 Census data. 

Weber Dec. 439. 

    
 



  

13a 

51.9 percent of its total population allocated to District 12 is 

African-American, while only 7.2 percent of the total 

population assigned to adjoining District 9 is African- 

American. 

A similar pattern emerges when analyzing the cities and 

towns split between District 12 and its surrounding districts: 

the four largest cities assigned to District 12 are split along 

racial lines. Id. 423. For example, where the City of Charlotte 

is split between District 12 and adjacent District 9, 59.47 

percent of the population assigned to District 12 is African- 

American, while only 8.12 percent of the Charlotte population 

assigned to District 9 is African-American. Affidavit of Martin 

B. McGee ("McGee Aff."), Ex. L. And where the City of 

Greensboro is split, 55.58 percent of the population assigned to 

District 12 is African-American, while only 10.70 percent of 

the population assigned to District 6 is African-American. 7d. 

An analysis of the voting precincts immediately 

surrounding District 12 reveals that the legislature did not 

simply create a majority Democratic district amidst 

surrounding Republican precincts. For example, around the 

Southwest edge of District 12 (in Mecklenburg County), the 

legislature included within the district's borders several 

precincts with racial compositions of 40 to 100 percent 

African-American, while excluding from the district voting 

precincts with less than 35 percent African-American 

population, but heavily Democratic voting registrations. 

Among Mecklenburg County precincts which are immediately 

adjacent to District 12, but not inside it, are precincts with 

58.818 percent of voters registered as Democrats, and precincts 

that are 56.464 percent Democratic, 54.213 percent 

 



  

14a 

Democratic, 59.135 percent Democratic, 59.225 percent 

Democratic, 54.498 percent Democratic, 59.098 percent 

Democratic, 55.72 percent Democratic, 54.595 percent 

Democratic, 54.271 percent Democratic, 63.452 percent 

Democratic, and 59.453 percent Democratic. Id, Ex. P. 

Similarly, Forsyth County precincts that are immediately 

adjacent to, but not inside, District 12 include precincts with 

57.371 percent Democratic registration, 65.253 percent 

Democratic registration, 65.747 percent Democratic 

registration, 65.747 percent Democratic registration, 76 percent 

Democratic registration, 55.057 percent Democratic 

registration, 55.907 percent Democratic registration, 56.782 

percent Democratic registration, 55.836 percent Democratic 

registration, and 60.113 percent Democratic registration. /d., 

Ex. O. Finally, District 12 was drawn to exclude precincts with 

59.679 percent Democratic registration, 61.86 percent 

Democratic registration, 58.145 percent Democratic 

registration, 62.324 percent Democratic registration, 60.209 

percent Democratic registration, 56.739 percent Democratic 

registration, 66.22 percent Democratic registration, 57.273 

percent Democratic registration, 55.172 percent Democratic 

registration, and 63.287 percent Democratic registration, all in 

Guilford County. Id., Ex. N. 

On the North Carolina map, District 12 has an irregular 

shape and is barely contiguous in parts. Its Southwest corner 

lies in Mecklenburg County, very close to the South Carolina 

border, and includes parts of Charlotte. The District moves 

North through Rowan County and into Iredell County. There 

it juts West to pick up parts of the City of Statesville. More 

than 75 percent of the Statesville population that is included in 

    
 



  

15a 

District 12 is African-American, while only 18.88 percent of 

the population of Statesville excluded from District 12 is 

African-American. McGee Aff., Ex. L. From Statesville, the 

District moves East into Rowan County. There it dips to the 

South to include Salisbury, before turning to the Northeast and 

entering Davidson County and the City of Thomasville. Over 

41 percent of the populations of Salisbury and Thomasville that 

are included in District 12 are African-American, while only 

15.39 and 9.55 percent, respectively, of those that are excluded 

from the District are African-American. Id. The District makes 

a northwesterly incursion into Forsyth County to include parts 

of Winston-Salem, where 77.39 percent of the population 

within District 12 is African-American,and only 16.06 percent 

of the population left out is African-American. Id. The District 

moves to the East and narrows dramatically before opening up 

again to include the predominantly African-American parts of 

Greensboro, where the District ends. 

Objective, numerical studies of the compactness of 

congressional districts are also available. In his report, "An 

Evaluation of North Carolina's 1998 Congressional Districts," 

Professor Gerald R. Webster, one of the Defendants’ expert 

witnesses, presents statistical analyses of "comparator 

compactness indicators" for North Carolina's congressional 

districts under the 1997 Plan. In measuring the districts’ 

dispersion compactness and perimeter compaciness, 

  

4 "Dispersioncompactness" measures the geographic "dispersion" 

of a district. To calculate this a circle is circumscribed around a district. 

The reported coefficient is the proportion of the area of the circumscribed 
circle which is also included in the district. This measure ranges from 1.0 

(continued...) 

 



  

16a 

Professor Webster offers two of the "most commonly 

recognized and applied" compactness indicators. Webster, at 

13 (citing Pildes & Niemi, Expressive Harms, "Bizarre 

Districts," and Voting Rights: Evaluating Election-District 

Appearances After Shaw v. Reno, 92 Mich.L.Rev. 483, 571- 

573, table 6 (1993) (hereinafter, "Pildes & Niemi"); and see 

Bush v. Vera, 517 U.S. 952,-, 116 S. Ct. 1941, 1952, 135 

L.Ed.2d 248 (1996) (citing Pildes & Niemi compactness factors 

as supporting evidence for holding three Texas congressional 

districts unconstitutional). 

In discussing the relative normalcy of various compactness 

measures, Pildes and Niemi suggest that a "low" dispersion 

compactness measure would be equal to or less than 0. 15. 

Pildes & Niemi, at 564. They suggest that a "low" perimeter 

compactness measure is equal to or less than 0.05. Id. North 

Carolina's Twelfth Congressional District under the 1997 Plan 

has a dispersioncompactness indicator of 0.109 and a perimeter 

compactness indicator of 0.041. Webster, at table 3. These 

figures are much lower than the mean compactness indicators 

for North Carolina's twelve congressional districts under the 

1997 Plan. The average dispersion compactness indicator for 

the State is 0.354, and the average perimeter compactness 

  

4 (...continued) 
(most compact) to 0.0 (least compact). Webster, at 14. 

* "Perimeter compactness” is based upon the calculation of the 

district's perimeter. The reported coefficientis the proportion of the area in 

the district relative to a circle with the same perimeter. This measure ranges 

from 1.0 (most compact) to 0.0 (least compact). Webster, at 14. The 

equation used here is ((4 x rl) x Area of district) -- (District's Perimeter2)). 

Webster, at table 3. 

    
 



  

17a 

indicator is 0.192. Id. The next lowest dispersion compactness 

indicator after District 12 is the 0.206 in the Fifth 

Congressional District, and the next lowest perimeter 

compactness indicator is the First Congressional District's 

0.107. Id. 

Thus, it is clear that even after the changes detailed above, 

the primary characteristic of the Twelfth District is its "racial 

archipelago," stretching, bending and weaving to pick up 

predominantly African-Americanregions while avoiding many 

closer and more obvious regions of high Democratic 

registration, but low African-American population. 

II The First Congressional District 

District 1 is another predominantly Democratic district 

established by the 1997 Plan. Unlike District 12, it is a 

majority-minority district, based on percentages of the total 

population of the District® as 50.27 percent of its total 

population is African-American. Id., Vol. I Commentary at 10. 

District 1 is composed of ten of the 22 counties split in drawing 

the statewide 12 district 1997 Plan. Weber Dec.§16. Half of 

the twenty counties represented in District 1 are split. Id. Of 

the ten sub-divided counties assigned to District 1, four have 

parts with over 50 percent African-American population, four 

others have parts with over 40 percent African-American 

population, and two others have parts with over 30 percent 

African-American population. Id., 17. 

  

8 While 50.27 percent of the total population of District 1 is 

African-American, only 46.54 percent of the voting age population is 

African-American, based on the 1990 census data. 

 



  

18a 

In each of the ten counties that are split between District 1 

and an adjacent district, the percent of the population that is 

African-Americanis higher inside the district than it is outside 

the district, but within the same county. /d., 19 and Table 2. 

The disparities are less significant than in the county splits 

involving District 12. Id., Table 2. For example, where 

Beaufort County is split between Districts 1 and 3, 37.7 percent 

of the total population of Beaufort County allocated to District 

1 is African-American, while 22.9 percent of the total 

population of Beaufort County assigned to District 3 is African- 

American. 

Similarly, nine of the 13 cities and towns split between 

District 1 and its neighboring districts are split along racial 

lines. Id., 422. For example, where the City of New Bern is 

split between District 1 and adjacent District 3, 48.27 percent 

of the population assigned to District 1 is African-American, 

while 24.49 percent of the New Bern population assigned to 

District 3 is African-American. McGee Aff, Ex. L. 

Viewed on the North Carolina map. District 1 is not as 

irregular as District 12. In the North, it spans 151.2 miles 

across, from Roxboro, Person County, in the West, to Sunbury, 

Gates County, in the East. Affidavit of Dr. Alfred W. Stuart 

("Stuart Aff."), table 1. It is shaped roughly like the state of 

Florida, although the protrusion to the South from its 

"panhandle" is only approximately 150 miles long (to 

Goldsboro, Wayne County, with two irregularities jutting into 

Jones, Craven, and Beaufort Counties. Cooper Aff, 

attachment.) These irregularities surround the peninsular 

extension of the Third Congressional District from the East, 

allowing the incumbent from the previous Third Congressional   
   



  

19a 

District to retain his residence within the boundaries of the 

same district, and avoiding placing two incumbents 

in District 1. | 

The "comparator compactness indicators" from District 1 

are much closer to the North Carolina mean compactness 

indicators than are those from District 12. For example, 

District 1 has a dispersion compactness indicator of 0.3 17 and 

a perimeter compactness indicator of 0.107. Webster, at table 

3. This dispersion compactness indicator is not significantly 

lower than the State's mean indicator of 0.354, and is higher 

than the dispersion compactness indicators of Districts 12 

(0.109), 9 (0.292), and 5 (0.206). Id. It may be noted that 

Districts 5 and 9 are next to, and necessarily shaped by, District 

12. District 1 has a perimeter compactness indicator of 0.107, 

which is lower than North Carolina's mean perimeter 

compactness indicator (0.192), but much higher than Pildes and 

Niemi's suggested "low" perimeter compactness indicator 

(0.05). District 1's perimeter compactness indicator is also 

much higher than that of District 12 (0.041). Id. 

DISCUSSION 

L Applicable Law and Standard of Review 

The Equal Protection Clause of the United States 

Constitution provides that no State "shall deny to any person 

within its jurisdiction the equal protection of the laws." U.S. 

Const. amend. 14, § 1. The United States Supreme Court 

explained in Miller v Johnson, 515 U.S, at 904, 115 S. Ct. at 

2482, that the central mandate of the Equal Protection Clause 
"3 is racial neutrality in governmental decision making." 

 



  

20a 

Application of this mandate clearly prohibits purposeful 

discrimination between individuals on the basis of race. Shaw 

v. Reno, 509 U.S. 630,642,113 S. Ct. 2816,2824, 125 L.Ed.2d 

511 (1993) ("Shaw I") (citing Washington v. Davis, 426 U.S. 

229, 239, 96 S. Ct. 2040, 2047, 48 L.Ed.2d 597 (1976)). 

As the Supreme Court recognized, however, the use of this 

principle in "electoral distracting is a most delicate task." 

Miller, 515 U.S., at 905, 115 S. Ct., at 2483. Analysis of 

suspect districts must begin from the premise that "[l]Jaws that 

explicitly distinguish between individuals on racial grounds fall 

within the core of [the Equal Protection Clause's] prohibition." 

Shaw 1, 509 U.S, at 642, 113 S. Ct., at 2824. Beyond that, 

however, the Fourteenth Amendment's prohibition "extends not 

just to explicit racial classifications," Miller, 515 U.S., at 905, 

115 S. Ct., at 2483, but also to laws, neutral on their face, but 

"unexplainable on grounds other than race," Arlington Heights 

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

266, 97 S. Ct. 555, 564, 50 L.Ed2d 450 (1977). 

In challenging the constitutionality of a State's districting 

plan, the "plaintiff bears the burden of proving the race-based 

motive and may do so either through 'circumstantial evidence 

of a district's shape and demographics' or through 'more direct 

evidence going to legislative purpose." Shaw II, 517 U.S. at 

___, 116 S. Ct. at 1900 (quoting Miller, 515 U.S. at 916, 115 

S. Ct. at 2488). In the final analysis, the plaintiff must show 

"that race was the predominant factor motivating the 

legislature's decision to place a significant number of voters 

within or without a particular district." Id. (quoting Miller, 515 

U.S. at 916, 115 S. Ct., at 2488).   
  

75]
 

 



  

    

21a 

Once a plaintiff demonstrates by a preponderance of the 

evidence that race was the predominant factor in redistricting, 

the applicable standard of review of the new plan is "strict 

scrutiny." Thus, in Miller the Supreme Court held that strict 

scrutiny applies when race is the "predominant" consideration 

in drawing the district lines such that "the legislature 

subordinate[s] race-neutral distracting principles ... to racial 

considerations.” 515 U.S., at 916, 115 S. Ct., at 2488. Under 

this standard of review, a State may escape censure while 

drawing racial distinctions only if it is pursuing a "compelling 

state interest.” Shaw II, 517 U.S.,at __ , 116 S. Ct., at 1902. 

However, "the means chosen to accomplish the State's 

asserted purpose must be specifically and narrowly framed to 

accomplish that purpose." Wygant v. Jackson Bd. of Ed., 476 

U.S. 267, 280, 106 S. Ct. 1842, 1850, 90 L.Ed2d 260 (1986) 

(opinion of Powell, J.). As the Supreme Court required in Shaw 

II, where a State's plan has been found to be a racial 

gerrymander, that State must now "show not only that its 

redistricting plan was in pursuit of a compelling state interest, 

but also that its distracting legislation is narrowly tailored to 

achieve that compellinginterest." 5 17 U.S., at 1168.Ct, 

at 1902. 

We are cognizant of the principle that "redistricting and 

reapportioning legislative bodies is a legislative task which the 

federal courts should make every effort not to preempt." Wise 

v. Lipscomb, 437 U.S. 535, 539, 98 S. Ct. 2493, 2497, 57 

L.Ed2d 411 (1978) (citations omitted). "A State should be 

given the opportunity to make its own redistricting decisions so 

long as that is practically possible and the State chooses to take 

the opportunity. When it does take the opportunity, the 

3 

 



  

22a 

discretion of the federal court is limited except to the extent 

that the plan itself runs afoul of federal law." Lawyer v. Dep't 

of Justice, US. , ,1178, Ct 2186, 2193,138 L.Ed2d 

669 (1997) (internal citations omitted).” Thus, when the federal 

courts declare an apportionment scheme unconstitutional-asthe 

Supreme Court did in Shaw II-it is appropriate, "whenever 

  

7 The dissent charges that we "ignore[] the principles of federalism 

which require federal courts to exercise restraint," and alludes to the 

dangers of "judicial activism." This is a disturbing accusation, as a federal 
court cannot shrink away from the enforcement of the United States 

Constitution and federal law. The standard of equal protection under law 
established in the latter half of the 20® century is the direct result of federal 

courts’ defense of constitutional principles in the face of state resistance. 
We would point our distinguished colleague to the words of the late Judge 
Frank Johnson: 

It must be emphasized that, when governmental 
institutions fail to make ... judgment and decisions in a 

manner which comports with the constitution, federal 

courts have a duty to remedy the violation. In summary, 

it is my belief that the judicial activism which has 

- generated so much criticism is, in most cases, not 

activism at all. Courts do not relish making such hard 

decisions and certainly do not encourage litigation on 

social and political problems. 
But the federal judiciary in this country has the 

paramount and the continuing duty to uphold the law. 
When a "case or controversy" is properly presented, the 

court may not shirk its sworn responsibility to uphold the 

Constitution and laws of the United States. The courts 

are bound to take jurisdiction and decide the issues, even 

though those decisions result in criticism. The basic 

strength of the federal judiciary has been, and continues 

to be, its independence from political and, social 
pressures. 

Frank M. Johnson, Jr., Judicial Activism is a Duty-Not an Intrusion, VIEWS 
FROM THE BENCH: THE JUDICIARY AND CONSTITUTIONAL 

POLITICS 279,283-4 (1985). 

    
 



  

23a 

practicable, to afford a reasonable opportunity for the 

legislature to meet constitutional requirements by adopting a 

substitute measure rather than for the federal court to devise 

and order into effect its own plan. The new legislative plan, if 

forthcoming, will then be the governing law unless it, too, is 

challenged and found to violate the Constitution." Wise, 437 

U.S., at 540, 98 S. Ct., at 2497. 

II The Twelfth Congressional District 

As noted above, the final decision of the three-judge panel 

in Shaw only approved the 1997 Congressional Redistricting 

Plan "as an adequate remedy for the specific violation of the 

individual equal protection rights of those plaintiffs who 

successfully challenged the legislature's creation of former 

District 12." Shaw v. Hunt, No. 92-202-CIV-5-BR, at 8 

(E.D.N.C. Sept. 12, 1997). This panel must thus decide 

whether the 1997 Plan's Twelfth District violates the equal 

protection rights of the Plaintiffs who live within the district 

and challenge its constitutionality. 

In holding that District 12 under the 1992 Plan was an 

unconstitutional racial gerrymander, the Supreme Court in 

Shaw II noted, "[n]Jo one looking at District 12 could 

reasonably suggest that the district contains a 'geographically 

compact’ population of any race." 517 U.S.,at _ , 116 S. Ct, 

at 1906. The Shaw II Court thus struck the old District 12 as 

unconstitutional as a matter of law. In redrawing North 

Carolina's congressional districts in 1997 the General 

Assembly was, of course, aware that District 12 under the 1992 

Plan had been declared unconstitutional, curing the 

 



  

24a 

constitutional deficiencies was one of the legislature's declared 

goals for the redistricting process. Cooper Aff. 95, 8, 10, 14. 

Defendants now argue that the changes in District 12 

between the 1992 and 1997 Plans are dramatic enough to cure 

it of its constitutional defects. They point to the fact that the 

new District 12 has lost nearly one-third (31.6 percent) of the 

population from the 1992 district and nearly three-fifths (58.4 

percent) of the land. These numbers neither advance the 

Defendants’ argument nor end the Court's inquiry. As 

Defendants themselves note, the Court's role is limited to 

determining "whether the proffered remedial plan is legally 

unacceptable because it violates anew constitutional or 

statutory voting rights-that is, whether it fails to meet the same 

standards applicable to an original challenge of a legislative 

plan in place." McGhee v. Granville County, 860 F.2d 110, 115 

(4™ Cir. 1988) (citing Upham v. Seamon, 456 U.S. 37, 42, 102 

S. Ct. 1518, 1521, 71 L.Ed2d 725 (1982)). A comparison of 

the 1992 District 12 and the present District is of limited value 

here. The issue in this case is whether District 12 in the 1997 

Plan violates the equal protection rights of the voters residing 

within it. 

In Shaw I, the Supreme Court described the 1992 Plan's 

District 12 as "unusually shaped ... approximately 160 miles 

long and, for much of its length, no wider than the [Interstate] 

85 corridor. It winds in snake-like fashion through tobacco 

country, financial centers, and manufacturing areas until it 

gobbles in enough enclaves of black neighborhoods." 509 U.S., 

at 635-636, 113 S. Ct., at 2820-2821 (internal quotations 

omitted). The 1997 Plan's District 12 is similar: it is "unusually 

shaped," it is "snake-like," and it "gobbles in" African- 

  

    
 



  

25a 

American population centers. The evidence establishes that 

although its length has been shortened by approximately 65 

miles, it still winds from Charlotte to Greensboro along the 

Interstate-85 corridor, detouring to envelop heavily African- 

American portions of cities such as Statesville, Salisbury, and 

Winston-Salem. It also connects communities not joined in a 

congressional district, other than in the unconstitutional 1992 

Plan, since the whole of Western North Carolina was one 

district, nearly two hundred years ago. 

As discussed above, where cities and counties are split 

between the Twelfth District and neighboring districts, the 

splits invariably occur along racial, rather than political, lines- 

the parts of the divided cities and counties having a higher 

proportion of African-Americans are always included in the 

Twelfth. Defendants argue that the Twelfth was drawn not 

with race, but rather politics and partisanship in mind. They 

have described the District as a "Democratic island in a 

Republican sea," and presented expert evidence that political 

identification was the predominant factor determining the 

border of District 12. Affidavit of David W. Peterson 

("Peterson Aff"). As the uncontroverted evidence 

demonstrates, however, the legislators excluded many heavily- 

Democratic precincts from District 12, even when those 

precincts immediately border the Twelfth and would have 

established a far more compact district. The only clear thread 

woven throughout the distracting process is that the border of 

the Twelfth district meanders to include nearly all of the 

precincts with African-American population proportions of 

over forty percent which lie between Charlotte and Greensboro, 

inclusive. 

 



  

26a 

As noted above, objective measures of the compactness of 

District 12 under the 1997 Plan reveal that it is still the most 

geographically scattered of North Carolina's congressional 

districts. When compared to other previously challenged and 

reconstituted congressional districts in North Carolina, Florida, 

Georgia, Illinois, and Texas, District 12 does not fare well. The 

District's dispersion and perimeter compactness indicators 

(0.109 and 0.041, respectively) are lower than those values for 

North Carolina's District 1 (0.317 and 0.107 under the 1997 

Plan). Similarly, the District suffers in comparison to Florida's 

District 3 (0.136 and 0.05), Georgia's District 2 (0.541 and 
0.411) and District 11 (0.444 and 0.259), Illinois' District 4 

(0.193 and 0.026), and Texas’ District 18 (0.335 and 0.151), 

District 29 (0.384 and 0.178), and District 30 (0.383 and 

0.180). 

Additionally, Plaintiffs' expert, Dr. Weber, showed time 

and again how race trumped party affiliationin the construction 

of the 12" District and how political explanations utterly failed 

to explain the composition of the district. (Trial Transcript at 

162-3, 204-5, 221, 251, 262, 288.) Of particular note is Dr. 

Weber's contention that a much more compact, solidly 

Democratic 12" District could have been created had race not 

predominated over traditional political considerations in the 

redistricting process. (Trial Transcript at 220-1) Additionally, 

Dr. Weber showed that, without fail, Democratic districts 

adjacent to District 12 yielded their minority areas to that 

district, retaining white Democratic precincts. (Trial Transcript 

at 255-6). This testimony served to undermine Defendants’ 

contention that race was merely a factor in creating the 1997 

Plan's 12" District, and that a desire to place high-performance 

    
 



  

27a 

Democratic areas (which happen to contain minority 

populations) within Democratic districts could explain the 

construction of the 12%, 

The conclusion that race predominated was further 

bolstered by Senator Cooper's allusion to a need for "racial and 

partisan balance," cited above. The senator's contention that 

although he used the term "partisan balance" to refer to the 

maintenance of a six-six Democrat-Republican split in the 

congressional delegation, he did not mean the term "racial 

balance" to refer to the maintenance of a ten-two balance 

between whites and African-Americans is simply not credible. 

(Trial Transcript at 429-30) 

Dr. Weber, who has testified as an expert in redistricting 

cases in Louisiana, Texas, Georgia, Virginia and Florida, also 

presented a convincing critique of the methodology used by 

Defendants' expert witness, Dr. Peterson. (Trial Transcript at 

145) Dr. Weber characterized Dr. Peterson's boundary segment 

analysis as non-traditional, creating "erroneous" results by 

"ignoring the core" of each district in question. (Trial 

Transcript at 222-4) In summary, Dr. Weber found that Dr. 

Peterson's analysis and report "has not been appropriately 

done," and was therefore "unreliable" and not relevant. (Trial 

Transcript at 232) 

Finally, the Cooper-Cohene-mail, discussed above, clearly 

demonstrates that the chief architects of the 1997 Plan had 

evolved a methodology for segregating voters by race, and that 

they had applied this method to the 12" District. The Cooper- 

Cohen e-mail refers specifically to the categorization of 

sections of Greensboro as "Black," and a scheme by which this 

section was added to the 12™ District, creating a need to "take 

 



  

28a 

about 60,000" other citizens out. (Exhibit 58) It is also relevant 

as evidence of the means by which the 1997 Plan's racial 

gerrymandering could be achieved with scientific precision, as 

the precise racial composition of another district (the First) is 

discussed at length, along with plans to "improve" that district 

by "boost[ing] the minority percentage." (Exhibit 58) 

The computer system used by the state has the capacity to 

identify and apportion voters based on race, and to determine 

the exact racial make-up of each district. The Cohen-Cooper 

e-mail reveals that exact racial percentages were used when 

constructing districts.® Given that the Supreme Court struck 

down the 1992 Plan's 12" District, the clear inference here is 

that a motive existed to compose a new 12" District with just 

under a majority minority in order for it not to present a prima 

facie racial gerrymander. In fact, Senator Cooper argued before 

the legislature that the Shaw test for constitutionality would not 

be triggered because the 12™ District was not a majority 

minority district. (Trial Transcript at 440-1) But using a 

computer to achieve a district that is just under 50% minority 

is no less a predominant use of race than using it to achieve a 

district that is just over 50% minority. 

Based on the extensive direct and circumstantial evidence 

presented at trial, the Court finds as a matter of fact that the 

General Assembly, in redistricting, used criteria with respect to 

the Twelfth District that are facially race driven. It is clear that 

the Twelfth District was drawn to collect precincts with high 

  

* Senator Cooper claimed that the final percentage composition of 

District 12 was sheer happenstance. (Trial Transcriptat 427-8) The explicit 

discussion of precise percentages in the e-mail belies this characterization. 

    
 



  

29a 

racial identification rather than political identification. 

Additionally, the evidence demonstrates that precincts with 

higher partisan representation(that is, more heavily Democratic 

precincts) were bypassed in the drawing of District 12 in favor 

of precincts with a higher African-American population. The 

legislature eschewed traditional distracting criteria such as 

contiguity, geographical integrity, community of interest, and 

compactness in redrawing the District as part of the 1997 Plan. 

Instead, the General Assembly utilized race as the predominant 

factor in drawing the District.’ 

This Court finds that, in contrast to the state's claims 

regarding the 1% District, no evidence of a compelling state 

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

presented. Further, even if such an interest did exist, the 12" 

District is not narrowly tailored and therefore cannot survive 

the prescribed "strict scrutiny.” The 1997 Plan's District 12 is 

an impermissible and unconstitutional racial gerrymander in 

violation of the Equal Protection Clause. 

To remedy these constitutional deficiencies, the North 

Carolina legislature must 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. This mandate of 

the Court leaves the General Assembly free to use other, proper 

factors in redistricting the 1997 Plan. The legislature may 

consider traditional districting criteria, such as incumbency 

  

° The Supreme Court has indicated that, when drawing 

congressional districts, race may not be used as a proxy for political 

characteristics. Verav. Bush,5170U.8.952,  ,116S. Ct. 1941, 1956, 135 

L.Ed.2d 248 (1996). 

 



  

30a 

considerations, to the extent consistent with curing the 

constitutional defects. See Shaw II. 517 U.S.,at ___ II 6S. 

Ct, at 1901 (describing "race-neutral, traditional districting 

criteria").'” 

il First Congressional District 

The three-judge panel in Shaw never ruled on the 

constitutionality of the 1992 Plan's First Congressional District. 

Standing problems on the part of the Shaw plaintiffs forced that 

court to narrow its focus to adjudicate only the issues raised 

regarding the Twelfth District. A comparison of the First and 

Twelfth Districts under the 1992 Plan reveals, however, that 

they are similarly egregious in their construction and that the 

First District would certainly have been subject to the same 

finding that it was not narrowly tailored. Both were majority- 

minority districts under the 1992 Plan, and neither evidenced 

even minimal geographical compactness. 

The 1997 Plan's First District, once again presents this 

Court with a majority-minority district, this time containing a 

population that is 50.27 percent African-American, as opposed 

to the Twelfth District's 46.67 percent. The First District is, 

however, far more compact than the Twelfth and its shape is 

less irregular, as we have seen above. 

  

'* Our distinguished colleague's dissent treats the standing of 
Plaintiff Linville at some length Defendants moved to dismiss him from the 
instant suit, arguing that he did not live within the 1997 Plan's 12" District. 
This motion was denied at trial. Trial Transcript at 327. As there is 

standing on behalf of a plaintiff or plaintiffs with respect to each of the 
challenged districts, Plaintiff Linville's standing is moot as to this Court's 
ability to reach a decision in the instant case. Thus, we decline to elaborate 
on the standing issue. 

  

    

 



  

31a 

This Court finds as a matter of fact that, under the 1992 

Plan, the First District was not narrowly tailored and therefore 

that district was in violation of the Constitution. The evidence 

presented by the Defendants does not dispute this finding. 

The statements of several key players in the 1997 

redistricting process clearly show that, in an effort to gain pre- 

clearance under the Section 2 of the Voting Rights Act, 42 

U.S.C. § 1973, they allowed race to predominate in the creation 

of the 1* District. The Cohen-Cooper e-mail is one such clear 

example, specifically referencing the desire to "boost the 

minority percentage in the first district" to create an "improved" 

district. The e-mail exposes a process in which voters were 

categorized by race, then shifted in and out of the 1* District by 

a computer program until a precise percentage of minority 

voters in the district was achieved. No other credible 

explanation has been offered. 

The fact that race predominated in the construction of the 

1* District is not surprising. The legislators faced the difficult 

task of remedying the unconstitutional aspects of the 1992 

Plan's 1* District while complying with the mandates of the 

Voting Rights Act, discussed below. Indeed, Senator Cooper 

acknowledged that he felt he had to have over 50% minority 

representation in the First District. (Trial ‘Transcript at 440) 

This admission reveals that the racial composition of the 

district was seen as a mandate, a necessity. 

Thus, we further find that, in its 1997 Plan, the State 

continued to use race as the predominant factor in creating the 

majority-minority First District, and thus strict scrutiny must 

apply. This does not end our inquiry, however. Defendants 

 



  

32a 

may show that the district was narrowly tailored to achieve a 

compelling government interest. 

Section 2 of the Voting Rights Act provides that "no 

voting qualification or prerequisite to voting or standard, 

practice, or procedure shall be imposed or applied by any State 

... in a manner which results in a denial or abridgement of the 

right of any citizen of the United States to vote on account of 

race or color, .... " 42 U.S.C. § 1973(a) (1988). Congress 

instructed the courts, when determining whether a voting 

standard, practice, or procedure violates this prohibition, to 

examine "the totality of the circumstances” to ascertain whether 

"the political processes leading to nomination or election” are 

equally open to citizens of all races. Id. § 1973(b). Courts may 

also consider "[t]he extent to which members of a protected 

class have been elected to office," but the Act expressly states 

it does not establish "a right to have members of a protected 

class elected in numbers equal to their proportion in the 

population." Id. : 

In Thornburgv. Gingles, the Supreme Court first examined 

the 1982 amendments to the Act. 478 U.S. 30, 34; 106 S.Ct. 

2752, 2758; 92 L.Ed.2d 25 (1986). The Court found that the 

1982 amendments no longer required a showing of intentional 

discrimination in order to prove a violation of the Act. Id. at 

35, 106 S.Ct. at 2758. The Court identified the following 

"necessary preconditions" to a § 2 claim: 

"First, the minority group must be able to demonstrate that 

it 1s sufficiently large and geographically compact to constitute 

a majority in a single-member district... Second, the minority 

group must be able to show that it is politically cohesive... 

Third, the minority must be able to demonstrate that the white 

    

  

  

   



  

33a 

majority votes sufficiently as a bloc to enable it--in the 27 

absence of special circumstances, such as the minority 

candidate running unopposed-- usually to defeat the minority's 

preferred candidate." Gingles, 478 U.S. at 50-51, 106 S.Ct. at 

2766-67 (footnotes and internal citations omitted). Once these 

preconditions are met, a court must consider the factors 

identified in the Senate Report accompanying the: 1982 

amendments. Id. at 48, 106 S.Ct. at 2765." 

Defendants presented evidence at trial to show that there 

was a strong basis for the General Assembly to have believed, 

at the time of the 1997 Plan's drafting, that the three Gingles 
preconditions and several of the factors set forth in the Senate 

Report existed in North Carolina. Specifically, the Defendants 

presented evidence that the African-Americanpopulationin the 

  

'" Those factors are: (1) the extent of any history of official 

discrimination in the state or political subdivision that touched the right of 

the members of the minority group to register, to vote, or otherwise to 

participate in the democratic process; (2) the extent to which voting in the 

elections of the state or political subdivision is racially polarized; (3) the 

extent to which the state or political subdivision has used unusually large 

election districts, majority vote requirements, anti-single shot provisions, or 

other voting practices or procedures that may enhance the opportunity for 

discriminationagainst the minority group; (4) if there is a candidate slating 

process, whether the members of the minority group have been denied 

access to that process; (5) the extent to which members of the minority 

group in the state or political subdivision bear the effects of discrimination 
in such areas as education, employment and health, which hinder their 

ability to participate effectively in the political process; (6) whether political 

campaigns have been characterizedby overt or subtle racial appeals; (7) the 

extent to which members of the minority group have been elected to public 

office in the jurisdiction. Sen.Rep. No. 417, 97th Cong., 2d Sess. 28-29 

(1982), reprinted in 1982 U.S.C.C.A.N. 177, 206-07. This list of factors, 

however, "is neither comprehensivenor exclusive." Gingles, 478 U.S. at 45, 

106 S.Ct. at 2763. : 

 



  

34a 

area encompassed by District 1 was and is sufficiently large 

and geographically compact to constitute a majority in a 

congressional district. Additionally, Defendants contend, and 

Plaintiffs have stipulated for the purposes of this trial, that the 

African-American population is politically cohesive. Further, 

Defendants contend, and Plaintiffs have stipulated for the 

purposes of this trial, that the white majority votes sufficiently 

as a block to often enable it to defeat the minority's preferred 

candidate. Finally, all parties agree that, for many decades, 

African-Americans in North Carolina were victims of racial 

discrimination, and that a substantial majority of the State's 

African-American population is still at a disadvantage in 

comparison to white citizens with respect to income, housing, 

education and health. : 

This Court finds that Defendants have presented sufficient 

evidence to establish that the State Legislature of North 

Carolina did have a compelling reason to address race in the 

construction of the First District under the 1997 Plan. That 

compelling reason was the need to satisfy Section 2 of the 

Voting Rights Act in order to ensure that the State's African- 

American population have equal access to the political process. 

Further, this Court finds that the specific composition of 

the First District's borders, while predominated by race, was 

narrowly tailored to meet the Section 2 requirements while also 

addressing 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. The 

splitting of counties and lack of compactness display the 

interplay between these considerations: the borders were drawn 

to avoid putting two incumbents in a single district; the State 

    
 



  

35a 

Legislature intended to exclude as much of the First State 

Senatorial District from the 1997 Plan's 1* District as possible, 

resulting in modificationsthat forced the district's borders south 

and west. While race predominated, the legislature resisted the 

temptation to create a district reminiscent of the 1992 Plan's 1* 

District, which reflected little or no effort to achieve a narrow 

tailoring. 

Thus, this Court finds that the 1997 Plan's 1% District 

meets the requisite standard of strict scrutiny. Race, while the 

predominant factor in its composition, was not impermissibly 

used in establishing its borders. There was a compelling state 

interest in obtaining pre-clearance under Section 2 of the 

Voting Rights Act, and the 1* District was narrowly tailored to 

meet this interest. Thus we find that the 1997 Plan's 1* District 

does not present an unconstitutional racial gerrymander. 

CONCLUSION 

For the reasons discussed above, this Court finds that the 

1997 Plan's Twelfth District continues to be unconstitutional as 

presented. Defendants are enjoined from using the 

unconstitutional District 12 in future elections. The 1997 Plan's 

First District does not violate the Constitution and may thus be 

used in future elections. Defendants will have an opportunity 

to correct the constitutional defects in the 1997 Congressional 

Redistricting Plan stemming from the 12 District, in default of 

which the Court must undertake the task. 

SO ORDERED. 

 



  

36a 

This 7th day of March, 2000. 

TERRENCE W. BOYLE 

Chief United States District Judge 

RICHARD L. VOORHEES 

United States District Judge 

By:/S/ 

TERRENCE W. BOYLE 

CHIEF UNITED STATES DISTRICT JUDGE 

  

    

  
 



  

37a 

OPINIONS OF UNITED STATES DISTRICT COURT FOR THE 

EASTERN DISTRICT OF NORTH CAROLINA, APRIL 14,1998 

[Caption Omitted in Printing] 

CONCURRENCE AND DISSENT 

THORNBURG, District Judge, sitting by designationas Circuit 

Judge, concurring in part and dissenting in part: 

I join the majority in concluding that the First 

Congressional district is constitutionally drawn, but 

respectfully dissent from the reasoning of the majority in 

reaching that conclusion. I dissent from the majority opinion 

finding the Twelfth Congressional district to be an 

unconstitutionalracial gerrymander. I also write to address the 

issue of Ronald Linville's right to remain a party plaintiff in 

this action. 

I. BACKGROUND 

In early 1997, the North Carolina General Assembly, for 

the third time in the decade, undertook the responsibility of 

redrawing the boundaries of North Carolina's congressional 

districts.’> Operating under a court imposed deadline of April 

1997 to redraw congressional district boundaries, the politically 

divided General Assembly faced the task of quickly reaching 

a consensus on the divisive and inherently political issues 

  

12 The General Assembly redrew the districts for the fourth time 

in 1998 pursuant to this Court's order, and now will be required to do so for 

the fifth time in early 2000. : 

 



  

38a 

involved. In addition to the traditional constituency concerns, 

the pull of party loyalty, incumbency issues, special interests, 

and turf protection, the General Assembly was forced to 

contend with a host of outside forces seeking to influence the 

process. Looming over the ususal morass of political decision- 

making was the federal court system, a Justice Department 

which from past experience was willing to withhold 

preclearance under Section 5 of the Voting Rights Act, 42 

U.S.C. § 1973c, and the ever present threat of litigation under 

Section 2 of the same Act. In addition, able private litigants on 

both sides of the issue stood ready to sue the State of North 

Carolina in the event that racial motives controlled the process, 

or in the event that the process was not racially fair. From this 

cauldron of conflicting agendas and influences, the majority 

concludes that the predominant motivating factor of the 170 

legislators in the General Assembly as they drew the 

redistricting plans for the First and Twelfth Districts was race. 

This is a particularly disturbing conclusion under the history, 

the facts, and the law of this case. 

That the General Assembly was not completely paralyzed 

by the demanding task it faced is a testament to the efforts of 

the legislators themselves, and particularly to the committee 

chairmen who crafted a plan that would pass both houses. 

Central to the General Assembly's motivation was the desire 

not to forfeit the responsibility of drawing constitutional 

districts to the federal courts, as had happened in Georgia, 

Texas, and Illinois. To suggest that the General Assembly 

could navigate these treacherous waters without being aware of 

the issue of race would be absurd because race loomed as the 

    
 



39a 

reason why the General Assembly had to redraw districts in the 

first place. But, the 1992 Plan is nof the plan being considered 

by this Court. The conclusion that racial motivations 

impermissibly predominated, in a process where consciousness 

of race is not prohibited," fails to evaluate Plaintiffs’ burden of 

proof and insufficiently credits the plain and direct testimony 

of the two state legislators who were the driving force behind 

the 1997 congressional redistricting plan. 

Il. JUDICIAL DEFERENCE 

The Constitution leaves with the States primary 

responsibility for apportionment of their federal congressional 

districts. U.S. Constitution, Article I, § 2, as amended by 

Amendment XIV § 2. "We say once again what has been said 

on many occasions: reapportionment is primarily the duty and 

responsibility of the State through its legislature or other body, 

rather than of a federal court." Chapman v. Meier, 420 U.S. 1, 

27 (1975) (citing Reynolds v. Sims, 377 U.S. 533, 586 (1964)) 

(other citations omitted). In the matter of redistricting, courts 

owe substantial deference to the legislature, which is fulfilling 

"the most vital of local functions" and is entrusted with the “% 

"discretion to exercise the political judgment necessary to 

balance competing interests." Miller v. Johnson, 515 U.S. 900, 

915 (1995). The Court must presume the legislature acted in 

good faith absent a sufficient showing to the contrary. Id. 

  

.. ? In dealing with an equal protection lawsuit involving mixed 

motives in the drawing of congressional districts, "strict scrutiny does not 

apply merely because redistricting is performed with consciousness of 

race." Bushv. Vera, 517 U.S. 952, 958 (citing Shaw v. Reno, 509 U.S. 630, 

646 (1993) (Shaw 1)).   
 



  

40a 

Consequently, this Court must grant North Carolina's General 

Assembly substantial deference concerningits decisions related 

to the 1997 redistricting plan. In deciding this case we should 

avoid the temptation to legislate for the General Assembly. Id. 

Under the facts of this case and the Supreme Court's decisions, 

judicial activism is neither necessary nor desirable. The 

majority would mask its unwarranted intrusion into the North 

Carolina legislative process by correctly observing the duty of 

a federal court to “uphold the Constitution and laws of the 

United States." Majority Opinion, at 18-19, n.7. They ignore, 

however, Judge Johnson's qualifying words: "[It is] when 

governmental institutions fail to make... judgments and 

decisions in a manner which comports with the constitution 

[that] federal courts have a duty to remedy the violation." Id. 

\ Thus, while espousing judicial restraint, the majority will again 

declare the Twelfth District unconstitutional and return the 

distracting plan to the General Assembly for correction. This 

approach ignores the principles of federalism which require 

federal courts to exercise deference and restraint in altering the 

state redistricting decision in the first place. 

III. STANDARD OF REVIEW 

| Strict scrutiny should not be applied to the decision of 

| North Carolina's General Assembly merely because 

. redistricting was performed with consciousness of race. See 

' n.1, supra. As previously observed, the Voting Rights Act 

| dictates that race may not be ignored. See eg., Johnson v. 

 Grandy, 512 U.S. 997 (1994); Holder v. Hall, 512 U.S. 874 

(1994); Voinovich v. Quilter, 507 U.S. 146 (1993). For strict 

| scrutiny to apply, the burden is on the Plaintiffs to show that 

    
 



  

41a 

"other, legitimate distracting principles were 'subordinated’ to 

race,” i.e., that race was "the predominant factor motivating the 

legislature's [redistricting] decision." Bush, 517 U.S. at 959 

(citing Miller, 515 U.S. at 916) (emphasis added). Plaintiffs 

may meet this burden through either "circumstantial evidence 

of a district's shape and demographics" or through "more direct 

evidence going to legislative purpose." Miller, 515 U.S. at 916. . 

In Miller, the Supreme Court recognized certain factors as 

legitimate distracting principles, "including, but not limited to 

compactness, contiguity, and respect for political subdivisions 

or communities defined by actual shared interests." Id. 

Incumbency protection, at least in the limited form of 

“avoiding contests between incumbent[s]," has also been 

recognized as a legitimate state goal. Bush, at 964 (citations 

omitted). Likewise, the Supreme Court has repeatedly held that 

states “may engage in constitutional political gerrymandering, 

even if it so happens that the most loyal Democrats happen to | 

be black Democrats and even if the State is conscious of that 

fact." Hunt v. Cromartie, 526 U.S. 541, _, 119 S. Ct. 1545, 

1551 (1999) (emphasis added). 

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. 

 



  

42a 

Id. Only where race predominates over legitimate districting 

principles will strict scrutiny apply to a State's redistricting 

decision. 

The burden of proving that racial motives predominated 

over legitimate districting principles is not easily met. This 

difficulty is due in part to the inherent nature of any legislative 

decision where numerous motives and influences are at work. 

Concurring in the Miller decision, Justice O'Connor further 

clarified the rigorous nature of the Plaintiffs’ burden: 

I understand the threshold standard the Court 

adopts ... to be a demanding one. To invoke strict 

scrutiny, a plaintiff must show that the State has 

relied on race in substantial disregard of 

customary and traditional distracting practices .... 

[A]pplication of the Court's standard helps achieve 

Shaw's basic objective of making extreme 

instances of gerrymandering subject to meaningful 

judicial review. 

Miller, 515 U.S. at 928-29 (emphasis added). See also, Quilter 

v. Voinovich, 981 F. Supp. 1032, 1044 (N.D. Ohio 1997) ("We 

therefore follow Justice O'Connor's lead in applying a 

demanding threshold that allows states some degree of latitude 

to consider race in drawing districts."), aff'd, 523 U.S. 1043 

(1998). As a result of this high threshold, a State which does 

no more than take race into consideration in the redistricting 

process will not be subjected to strict scrutiny. Bush, 517 U.S. 

at 958. Even a State's decision to intentionally create a 

A
 
k
A
 

   

    

   

          

   

                            

        

 



a
i
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43a 

minority-majority district will not necessarily be subject to 

strict scrutiny. Id. 

In applying this high threshold standard to the case at 

hand, it is this Court's responsibility to closely examine all of 

the evidence to determine whether by a preponderance of the 

evidence the North Carolina General Assembly substantially 

disregarded legitimate distracting principles, including 

incumbency protection and political motivations, and 

subordinated those principlesto race in the districting process. 

Only then can strict scrutiny be applied to the decision of the 

state legislature. Furthermore, each challenged district must be 

evaluated separately to determine whether strict scrutiny will 

apply to that district. In situations where "it is clear that race 

was not the only factor that motivated the legislature to draw 

irregular district lines," each challenged district must be 

scrutinized individually to determine whether the legislature 

relied on race in substantial disregard of legitimate districting | 

principles. Bush, 517 U.S. at 965. The legislature's motivation 

as to one district cannot be transferred to another. 

IV. DISCUSSION ; 

Initially, I note that the 1997 plan must be addressed based 

on its own merit, not on any resemblanceto the 1992 Plan. The 

majority opinion appears to have recognized this rule of law in 

noting that the Court's role is limited to determining "whether 

the proffered remedial plan is legally unacceptable because it 

violates anew constitutional or statutory voting rights-that is, 

whether it fails to meet the same standards applicable to an 

original challenge of a legislative plan in place." McGhee v.  



  

44a 

Granville County, N.C., 860 F.2d 110, 115 (4™ Cir. 1988) 

(citing Upham v. Seamon, 456 U.S. 37, 42 (1982)). 

Nevertheless, the majority makes reference to the 

“unconstitutional” 1992 Plan in criticizing both the First and 

Twelfth Districts under the 1997 Plan. This criticism 

essentially mirrors the "footprint" argument advanced by 

Plaintiffs, and therefore is equally flawed. 

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. Thus, the North Carolina 

General Assembly could not use the unconstitutional 1992 Plan 

as the beginning point for creating the 1997 Plan. However, 

given that the task of the General Assembly in 1997 was to 

correct the defects of the 1992 plan, it should be permissible to 

use the 1992 Plan as the starting point for. creating a 

constitutional plan. Further, it would be illogical to argue that 

the unconstitutional aspects of a decision made by legislators 

in 1992 somehow taints the actions of a completely different 

legislative body in 1997. Most importantly, requiring a 

legislature to start completely from 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 

  

1" Indeed, Senator Roy Cooper, chairman of the Senate 

(continued...) 

    
 



  

45a 

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. 

A. The Twelfth Congressional District 

To show that racial motives predominated in the drawing 

of the Twelfth District, Plaintiffs had the burden of proving by 

a preponderance of the evidence that the legislature 

substantially disregarded legitimate districting criteria and 

subordinated those criteria to the improper racial motivation. 

A thorough treatment of Plaintiffs’ burden is noticeably absent 

from the majority opinion, but this burden must not be 

overlooked or disregarded. Plaintiffs quite simply have failed 

to carry their burden through either direct or circumstantial 

evidence.!? Defendants, on the other hand, have produced 

  

14 (...continued) 
Redistricting Committee testified at trial that he did not think the General 

Assembly could have drawn a plan from square one which would have 

passed because state legislators and congressional incumbents both wanted 

districts which preserved as much of their geographic cores as possible. 

Trial Transcript, at 350, lines 12-25. Likewise, Plaintiffs' own expert 

agreed that legislatures generally try to avoid disrupting the relationship 

between incumbents and their voters, testifying that "whatever districts 

[incumbents] end up with, they tend to, in the end, like and wish to preserve 

as long as they can. That's been an observation over decades and decades 

of study of redistricting." /d., at 279-80. 

15 Plaintiffs conducted their case as if they were entitled to a 

presumption that race predominated and merely had to rebut Defendants’ 

efforts to overcome this presumption. However, Plaintiffs are entitled to no 
such presumption, not by their past success in this area or previous success 

in this case at the summary judgment stage. The burden of proof lies 

squarely on the shoulders of Plaintiffs, and they have failed to adequately 
(continued...) 

 



  

46a 

ample and convincing evidence which demonstrates that 

political concerns such as existing constituents, incumbency, 

voter performance, commonality of interests, and contiguity, 

not racial motivations, dominated the process surrounding the 

creation and adoption of the 1997 redistricting plan. 

Finding that race was the predominant motivation and 

applying strict scrutiny to the Twelfth District fails to evaluate 

the redistricting process within the context of the legislative 

environment where such decisions occur. 

Passing a redistricting plan in a limited time period, under 

a federal court order, and in a politically divided General 

Assembly seemed like an impossible task early in 1997. Trial 

| Transcript, at 475, lines 5-12. In order to succeed, the 

| chairmen of the House and Senate Redistricting Committees 

recognized the necessity of creating a plan which would garner 

the support of both parties and both houses. Id, at 335, lines 

4-10; at 338, lines 19-22. 
Consequently, they 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. Id, at 475, lines 13-23; at 338, lines 

1-7. Because both the First and Twelfth Districts had 

Democrat incumbents, and maintaining the 6-6 split was 

viewed as imperative, preserving a strong Democratic Twelfth 

  

15 (...continued) 
carry that burden.   

   



  

  

47a 

District which protected incumbent Mel Watts’ political base 

was absolutely necessary. Affidavit of Roy A. Cooper, III, 

filed March 2, 1998, at 10. In creating such a district, 

common sense as well as political experience dictated 

ascertaining the strongest voter performing Democratic 

precincts in the urban Piedmont Crescent. That many of those 

strong Democratic performing precincts were majority African- 

American, and that the General Assembly leaders were aware 

of that fact, is not a constitutional violation.!® Those precincts 

were included in the Twelfth District based primarily upon 

their Democratic performance, not their racial makeup." North 

Carolina's legislative leaders have openly admitted to being 

aware of the race issue, to being conscious of the racial 

percentages of the districts they drew, and to recognizing that 

their redistricting plan could potentially be subjected to federal 

scrutiny yet again as a challenged racial gerrymander.'® Yet, 

  

16 All parties agree that African-American voters in North 
Carolina are extremely loyal Democratic voters, with over 95% of African- 

American voters in North Carolina registered and voting accordingly. Trial 

Transcript, at 388, lines 2-7. 

17 The fact that the majority of African-Americanlegislatorsin the 
North Carolina House of Representativesvoted against the enactment of the 

1997 redistricting plan, Trial Transcript, at 478, lines 3-13, tends to 

undermine the conclusion that the legislature designed districts which 
impermissibly favored African-Americans. 

8 The majority points to the Cooper-Cohene-mail as evidence of 
a "methodology for segregating votes by race." Majority Opinion, at 23. 

The majority also suggests that sinister inferences arise from Senator 

Cooper's statements on the legislature floor that the Shaw test for 

constitutionality might not be triggered since the Twelfth District was below 
(continued...) 

 



  

48a 

these were merely some of the numerous political 

considerations which legislative leaders had to account for in 

designing a plan which would pass. 

The expert testimony of Dr. David W. Peterson, the 

unbiased statistician whose opinions were referenced by the 

Supreme Court in Hunt v. Cromartie, supports Defendants’ 

position. Dr. Peterson opined that, based purely on the 

Plaintiffs’ circumstantial statistical evidence, politics was at 

least as plausible a motivating factor as race in the drawing of 

the Twelfth District. Trial Transcript, at 486-88. In other 

words, the statistical evidence before the Court does not 

support the proposition that race predominated as a motivation. 

Yet, it is this same equivocal statistical evidence which forms 

“the backbone of the Plaintiffs’ case. 

In an attempt to rebut this argument, Plaintiffs relied 

primarily on the testimony of their expert witness, Dr. Ronald 

  

18 (...continued) 
50% African-American. However, 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. Although it is indeed helpful and 
important to examine facts such as these which arguably support Plaintiffs’ 

position, they must be evaluated within the context of Plaintiffs’ heavy 

burden in this case, something the majority fails to do. When viewed in 

proper context, these evidentiary revelations contribute little to Plaintiffs’ 

efforts to show that racial motives predominated. And they certainly do not 

amount to the "smoking gun" status which Plaintiffs would have the Court 

believe. 

    
 



  

49a 

Weber." Dr. Weber also plays a prominent role in the majority 

opinion. Dr. Weber argued that the North Carolina legislature 

failed to include numerous precincts in the Twelfth District 

which had high levels of Democratic support, but which were 

not majority African-American. Consequently, he contended 

the legislature must have been more focused on race than on 

creating a Democratic district. Dr. Weber also criticized Dr. 

Peterson's findings as "unreliable" and not relevant. Trial 

Transcript, at 232, lines 1-8. However, it is the testimony of 

Dr. Weber, who admitted his belief that legislative bodies | 

should not be trusted to draw district lines, which the | 

undersigned finds lacking in credibility. /d., at 281, lines 3-14; 

United States v. Turner, 198 F.3d 425, 429 n.2 (4" Cir. 1999) 

(citing Davis V. Alaska, 415 U.S. 308, 316 (1974) ("The 

partiality of a witness is always relevant as discrediting the 

witness and affecting the weight of this testimony.")). This | 

stated bias is evident throughout his testimony and undermines 

both his criticism of Dr. Peterson as well as his assertion that 

political explanations fail to explain the composition of the 

Twelfth District. His "hired gun" mentality and obvious 

prejudice against legislatures fulfilling "the most vital of local 

  

19 Plaintiffs also provided the testimony of witnesses who were, 

at best, peripheral players in the General Assembly's decision-making 

process. Three of those witnesses were not members of the General 

Assembly when the plan in question was adopted and indicated no direct 

involvement with that process. Trial Transcript, at 89, lines 2-7 (R.O. 

Everette); at 104, 105, lines 1-18 (J.H. Froelich, Jr.); at 113, lines 12-19 

(Neil Williams). Of the three witnesses who were members of the General 

Assembly during the relevant time period, none claimed to have had a 

significant involvement with or specific knowledge of the decision-making 

process. Nevertheless, each confidently expressed the opinion that racial 

motivations did predominate as to the Twelfth District. 

 



  

50a 

functions,” attest to the unreliability of his conclusions. 

Miller, 515 U.S. at 915. 

Overlooking Dr. Weber's lack of credibility, his arguments 

still do little to advance Plaintiffs’ position. First, there is no 

dispute 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. Thus, although Dr. Weber pointed to 

other precincts which he suggests are highly Democratic in 

performance, this does not explain why any of the highest 

performing Democratic precincts should be excluded from the 

Twelfth District. Furthermore, Dr. Weber's entire line of 

criticism ignored geographic realities and oneperson, one-vote 

principles. Weber admitted that the precincts which he argued 

are strongly Democratic were chosen without considering 

where they were located?! Trial Transcript, at 286-88. 

Further, under one-person, one-vote principles, Weber's 

precincts could not all possibly be included in the Twelfth 

  

% As the majority notes, Dr. Weber has testified in over 30 racial 

gerrymandering cases. Exhibit 49. In the dissent in Johnson v. Mortham, 

926 F. Supp 1460 (N.D. Fla. 1996), Circuit Judge Hatchett criticized Dr. 
Weber's testimony as lacking credibility because Weber had previously 

testified in support of the "Margolis plan" in 1992, but now purported to 
testify against the subsequent plan which he admitted was practically 
identical. Id, at 1505 n.11, 1513. 

On cross-examination, the Defendants presented maps which 

showed that few highly performing Democratic precincts actually abutted 

the Twelfth District. Exhibits 140-142; Trial Transcript, at 290-292; at 294, 

lines 20-25. Consequently, few of the strong Democratic precincts to which 
Dr. Weber referred could have easily been included in the Twelfth District. 

    

    
 



  

51a 

District without removing a corresponding number of voters 

from elsewhere in the district? Id. Finally, Weber's analysis 

is flawed due to the incorrect assumptions under which he 

conducted his study. Weber admitted he considered no 

hypothesis other than race as the legislature's predominant, 

motive, and he specifically failed to inquire about real world | 

political or partisan factors which might have influenced the | 

process. Id., at 258, lines 2-11. One reason for the focus on | 

race was Dr. Weber's incorrect belief that the person drawing 

North Carolina's districts could only see racial data, when in 

fact North Carolina's computer screens displayed information 

on political breakdowns of both voter registration and voter _., 

performance.” Id., at 261, lines 4-8. This error, his failure fo 

account for other potential factors, the flaws in his arguments, 

and his ingrained personal bias combine to undermine his 

subsequent conclusions and criticisms. In the end, the 

undersigned sees no reason to give any weight to the opinions 

  

2 The undersigned notes here that just because North Carolina 

was able to draw a more compact Twelfth District in 1998 which still 

performed for the Democrats does not mean that the 1997 Twelfth District 

was necessarily unconstitutional. 

3 Q. Isn't it true that you only considered race because you 

believed the North Carolina computer system only displayed racial 

breakdowns and did not display political breakdowns? 

A. Atthattime I had not seen the screens for North Carolina. 

I had seen the screens in Louisiana. And in Louisiana, they did 

not prominently display political information on the screen. 

Trial Transcript, at 259, lines 16-23. 

 



  

52a 

of Dr. Ronald Weber and fails to understand the majority 

reliance on such a thin reed. 

Another significant shortcoming of the majority's analysis 

is the failure to adequately credit the testimony of the two men 

who were the driving force behind the creation of the 1997 

Redistricting Plan. Senator Roy Cooper, III, served as the 

Democrat chair of the Senate Redistricting Committee and 

Representative Edward McMahan acted as the Republican 

chair of the House Redistricting Committee. They were 

responsible for developing a redistricting plan that could pass 

both houses and for marshaling it through the legislative 

process. They indicated that the 1997 plan and the formulation 

of its boundaries came primarily from their personal 

negotiations with each other. Id., at 463, lines 3-5. Both 

testified that correcting the constitutional defects of the 

previous plan and passage of the bill by ensuring a 6-6 partisan 

split were the two central goals in developing the 1997 plan. 

Trial Transcript, at 334; at 475, lines 13-25. Indeed, each 

testified under oath that politics, not race, was the predominant 

motivating factor in the Plan's development, with Senator 

Cooper going so far as to call partisan fairness an "overriding 

factor." Id., at 337, lines 7-10. This Court's finding that racial 

motives predominated in the legislative process directly 

contradicts their express testimony. 

In contrast to Plaintiffs, the Defendants adequately 

supported their position with convincing evidence, even though 

they had no burden of proof in this trial. Senator Cooper and 

Representative McMahan detailed the motivations behind their 

    

     



53a 

actions, at times expressing regret for having to expose the 

naked political nature of their conduct. Id, at 423, lines 4-12. 

In addition to incumbency protection, other factors considered 

by the General Assembly included increasing geographic 

compactness and reducing the number of split counties and 

precincts. Id., at 349, lines 16-25; at 475, lines 13-25. The 

1997 Twelfth District as adopted reflected the legislators’ focus 

on these legitimate districting criteria. The 1997 Twelfth  B 

District is more compact, splits fewer counties and precincts, | 

and is much more pleasing to the eye than the previous District. 

Id., at 334, lines 7-15. The General Assembly shortened the 

District from 191 to 102 miles, moved 60 percent of the 

geographic area and 30 percent of the population out of the 

District, 2* and eliminated the long narrow corridors and other 

objectionable characteristics which had previously been 

criticized. Id., at 349, lines 16-23. Most importantly, the 

Twelfth District is not a minority-majority district by any 

traditional measurement, numbering 46.67 percent African- 

American in total population and only 43.36 percent African- 

American in voting age population. Final Pre-Trial Order, 

at 926. 
EE ® 

Furthermore, the General Assembly had before it abundant 

evidence of a clear community of interest in the Twelfth 

District.?* The three urban areas located along the Interstate-85 

  

24 Final Pre-Trial Order, filed November 29, 1999, at {'s 36-37. 

This included moving 4 out of 10 counties into other districts. Id., at Y30.   
2 Substantial evidence from both private citizens and politicians 

(continued...)   
 



  

54a 

industrial corridor, known as the Piedmont Crescent, share 

common characteristics and face similar problems. North 

Carolina's Section 5 Submission, 1997 Congressional 

Redistricting Plan, 97C-28F-3B, Tab 10. One statement 

submitted at a public hearing described the Twelfth District as 

"uniquely urban in its dominant issues," some of which were 

described as affordable housing, alternative transportation, air 

and water quality, and various other complex issues found in an 

increasingly populated and urban area. /d., at Tab 11, at § 8-9. 

As a consequence, the urban voters in the Twelfth District as 

presently configured have much more in common with each 

other than with rural voters living on the distant outskirts of 

those urban cities.® Id. 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. Affidavit of Senator Roy A. Cooper 

III, at § 9. 

  

2 (...continued) 
concerning the benefits of having a Piedmont Crescent district was 

submitted at the public hearings and therefore was before the legislature. 

North Carolina’s Section 5 Submission, 1997 Congressional Redistricting 
Plan, Volume IV. 

26 The majority observes that Charlotte, Winston-Salem, and 

Greensboro have never before been joined in a congressional district prior 

to 1992. However, it is irrelevant that the impetus for first grouping these 

metropolitan areas together was a plan since declared unconstitutional. See 

discussion, supra p. 6-7. What currently is relevant is the clear community 
of interest in this Piedmont Crescent district which has been recognized by 
politicians and private citizens alike. 

    

   



55a 

The evidence presented by Defendants demonstrates that 

politics predominated in the drawing of the Twelfth District in 

1997. Plaintiffs 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 political goals. Such evidence does not meet Plaintiffs’ 

heavy burden of showing by a preponderance of the evidence P 

that racial motives predominated in substantial disregard of 

legitimate districting criteria. 

In some circumstances, incumbency protection 

might explain as well as, or better than, race a 

State's decision to depart from other traditional 

districting principles, such as compactness, in the 

drawing of bizarre district lines. And the fact that, 

"[a]s it happens, . . . many of the voters being 

fought over [by the neighboring Democratic 

incumbents] were African-American," would not, 

in and of itself, convert a political gerrymander 

into a racial gerrymander, no matter how conscious ® 

redistricters were of the correlation between race 

and party affiliation. See Shaw I, 509 U.S., at 646, 

113 S.Ct., at 2826. If district lines merely correlate 

with race because they are drawn on the basis of 

political affiliation, which correlates with race, 

there is no racial classification to justify, just as 

racial disproportions in the level of prosecutions 

for a particular crime may be unobjectionable if     
 



  

56a 

they merely reflect racial disproportions in the 

commission of that crime. 

If the State's goal is otherwise constitutional 

political gerrymandering, it is free to use the kind 

of political data on which Justice Stevens focuses - 

precinct general election voting patterns, precinct 

primary voting patterns, and legislators’ experience 

- to achieve that goal regardless of its awareness of 

its racial implications and regardless of the fact 

that it does so in the context of a majority-minority 

district. To the extent that the District Court 

suggested to the contrary, it erred. 

Bush, 517 U.S. at 967-68 (citations omitted). Only to the 

extent race is used as a proxy for political characteristics will 

strict scrutiny be applied to otherwise permissible political 

gerrymandering. Id. Therefore, I conclude that strict scrutiny 

should not be applied to the Twelfth District. 

B. The First Congressional District 

The First District in the 1997 Plan is 50.27 percent 

African-American in total population and 46.54 percent 

African-American in voting age population. Final Pre-Trial 

Order, at § 27. Thus, the First District is the only majority- 

minority district in North Carolina in terms of total population, 

and no congressional district in this state is majority-minority 

in terms of voting age population. However, this fact does not 

change the applicable legal standard. A State's decision to 

intentionally create a majority-minority district is not 

    

   



  
  
  

57a 

necessarily subject to strict scrutiny. Bush, 517 U.S. at 958. 

Plaintiffs still have the burden of showing by a preponderance 

of the evidence that race was the predominant factor motivating 

the legislature's decision and that legitimate districting criteria 

were subordinated to race. Miller, 515 U.S. at 916. 

Senator Cooper and RepresentativeMcMahan testified that 

they were motivated to create a majority-minority district in the 

Northeastern area of the state to avoid concerns under the 

Voting Rights Act. Trial Transcript, at 365, lines 10-25; at 

464, lines 5-8. However, their motivation was predicated on 

the knowledge that they could create a compact, contiguous 

district in Northeastern North Carolina which focused on an 

undeniable community of interests. 

[A]s we went through the process it became clear 

that we could draw a nice, compact district that 

made geographic sense, that put together 

communities of interest, that was a strongly 

leaning Democratic district, that was slightly 

majority-minority population. 

Id., at 359, lines 18-23. 

District 1 is a largely agrarian rural district. It has 

a lot of medium sized towns. I think uniquely [in] 

Eastern North Carolina you have the 30 to 50,000 

population towns with largely rural areas. A lot of 

these counties are largely poorer counties, they are 

very high up on our economic tiers of depressed 

 



  

58a 

counties. So I think that there's a great community 

of interest in Northeastern North Carolina with 

those counties that are up there. 

Id, at 368, lines 8-15. 

Likewise, Senator Cooper and Representative McMahan 

were concerned with creating a geographically compact district. 

McMahan in particular focused almost exclusively on 

geographical considerations and "making the district look 

good." Id, at 467, lines 22-25. And indeed, the 1997 

redistricting process resulted in a fairly compact and normal 

looking congressional district in Northeastern North Carolina. 

The perimeter and dispersion compactness indicators of the 

First District are not much lower than the mean compactness 

indicators for North Carolina's twelve districts.”’ Neither 

number is low enough to raise a "red flag” according to the 

criteria set out in the Pildes and Niemi study.?® Furthermore, 

as the majority correctly observes, where the borders of the 

First District have significant irregularities, those irregularities 

  

27 The First District has a dispersion compactness indicator of 

0.317 and a perimeter compactness indicator of 0.107. Gerald R. Webster, 
"An Evaluation of North Carolina's 1998 Congressional Districts," Table 3; 

Defendants’ Exhibits 421-22. The mean numbers for North Carolina's 

twelve congressional districts are .354 and. 192 respectively. Id. 

2 That study suggested that a "red flag"should be raised when a 

perimeter compactness indicator is below .05 and a dispersion compactness 

indicator is below. 15. Webster, at 13 (citing Pieldes & Niemi, Expressive 

Harms, "Bizarre Districts," and Voting Rights: Evaluating Election-District 

Appearances After Shaw v. Reno, 92 Mich.L.Rev. 483, 571573, Table 6 

(1993)); Plaintiffs’ Exhibit 217. 

    
 



  

  

  

59a 

are attributable to political motivations, namely the desire to 

protect incumbents and avoid putting two congressional 

incumbents in a single district. Majority Opinion, at 29. 

Therefore, although it was the intent of Senator Cooper and 

Representative McMahan to create a minority-majority district 

in Northeastern North Carolina, this decision was based on 

legitimate distracting principles. Quite simply, once they knew 

they could create a compact, contiguous district which 

addressed the community of interests in Northeastern North 

Carolina, they felt they should do so. Trial Transcript, at 365, 

lines 17-24. 

The majority reaches a different conclusion, however, and 

applies strict scrutiny to the First District.” The majority 

characterizes the racial composition of the First District as “a 

mandate, a necessity,” and therefore concludes that racial 

motives predominated. Majority Opinion, at 26. In support of 

this conclusion, the majority cites the Cooper-Cohen e-mail 

which refers to the desire to "boost the minority percentage in 

the first district” to create an "improved" district. Also, the 

majority points to Senator Cooper's acknowledgment at trial 

that he felt the need to have over 50 percent minority 

representation in the First District. Based upon these 

  

2 After applying a strict scrutiny standard, the majority concludes 

that the First District is not an unconstitutional racial gerrymander, finding 

a compelling state interestunder § 2 of the Voting Rights Act and narrowly 

tailored means. AlthoughlI strongly feel that the evidence before the Court 

does not warrant the application of strict scrutiny, I agree with the majority's 

analysis concerning the application of the Gingles factors to the First 

District. 

 



  

60a 

statements, the majority concludes that the General Assembly 

"continued to use race as the predominant factor in creating the 

majority-minority First District, and thus strict scrutiny must 

apply.”™® Id, at 27. 

However, these statements merely highlight the admitted 

and permissible reality: the North Carolina General Assembly 

intentionally created a majority-minority district (in terms of 

population only) in Northeastern North Carolina. But despite 

the intent to create a majority-minority district, the evidence 

does not show that racial motives predominated in substantial 

disregard of legitimate criteria like compactness, contiguity, 

and communities of interest. Trial Transcript, at 365, lines 10- 

25. On the contrary, the direct testimony shows that the 

legislature addressed traditional, legitimate districting criteria 

and determined that a majority-minoritydistrictin Northeastern 

North Carolina was appropriate. Indeed, the criteria of 

communities of interest and geographical compactness were 

uppermost in the legislators’ minds. Considering the evidence 

before the Court in light of the deference due the state 

  

3 The majority purportsto find that "under the 1992 plan, the First 
District was not narrowly tailored and therefore that district was in violation 

of the Constitution." Majority Opinion, at 26. However, this Court has no 

authority to find that the First District under the 1992 Plan was 

unconstitutional. Due to a standing issue, the Supreme Court in Shaw II did 

not make a ruling on that district. Shaw v. Hunt, 517 U.S. 899, 904 (1996). 

Neither this Court nor any court has made a legal ruling on the 

constitutionality of the 1992 First District. Cromartie v. Hunt, 4:96-CV- 

104-BO(3), Order filed June 21, 1998, at 2. The 1992 Plan no longer exists, 

is not currently being challenged by Plaintiffs in this case, and simply is not 

an issue before this Court. To the extent the majority's application of the 
strict scrutiny is predicated on a comparison to the 1992 First District, such 

reliance is patently wrong. See discussion supra, at 6-7. 

    

  

  

 



  

  

  

  

61a 

legislative decision, my understanding of the applicable legal 

standard forces me to conclude that race did not impermissibly 

predominate in the districting process and therefore strict 

scrutiny should not apply to the First Congressional District. 

V. REMEDY 

I also respectfully dissent from the decision to require the 

General Assembly once again to redraw the Twelfth District. 

The filing period for Congressional candidates began on 

January 3, 2000, and ended on February 7, 2000. N.C. Gen. 

Stat. § 163-106(c). The General Assembly is not scheduled to 

reconvene until May 2000, the same month that North Carolina 

will conduct its primary elections. Forcing the General 

Assembly to call a special session to address this Court's ruling 

creates a plethora of problems. Ongoing election preparation 

will be interrupted as congressional candidates will be forced 

to refile and redesign their election strategies. Citizen 

confidence in the electoral process will be undermined by the 

repeated reconfiguration of election districts. While cost is not 

a factor to be considered in tailoring a constitutional remedy, it 

will be a concern to citizens hoping for closure in this long- 

running litigation. Also of no small concern is the time 

necessary for § 5 pre-clearance of changes from the '97 or '98 

plans, the probability of litigation under § 2 of the Voting 

Rights Act in the event of major changes in district lines, and 

the virtual certainty of another challenge by Plaintiffs if the 

new lines do not meet their satisfaction. To suggest that new 

districts, hastily drawn pursuant to this Court's Order, could 

have a salutary effect on the 2001 decennial redistricting is 

 



  

62a 

purely speculative in view of the major change anticipated in 

the North Carolina population since 1990. In short, requiring 

the North Carolina General Assembly to redraw congressional 

district lines for the year 2000 election, based as they must be 

on 1990 census figures, is unjustified, unnecessary and, quite 

probably, an abuse of discretion. 

There is Supreme Court precedent for this Court to 

consider "the proximity of a forthcoming election and the 

mechanics and complexities of state election laws" in 

fashioning appropriate remedies for constitutional violations in 

redistricting cases. Reynolds, 377 U.S. at 585. There is also 

Supreme Court precedent for allowing an election to proceed 

under an unconstitutional plan where an election is impending. 

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

[Als we have often noted, distracting and 

apportionment are legislative tasks in the first 

instance, and the court did not err in giving the 

legislature a reasonable time to act based on the 

1970 census figures which the court thought would 

be available in the summer of 1971... [T]he 

District Court should [then] make very sure that 

the 1972 elections are held under a constitutionally 

adequate [redistricting] plan. 

Id., at 114-15 (footnote omitted). 

[O]nce a State's legislative apportionment scheme 

has been found to be unconstitutional, it would be 

    

  

  

 



63a 

; the unusual case in which a court would be 

| justified in not taking appropriate action to insure 

oo that no further elections are conducted under the 

invalid plan. However, under 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 in withholding ® 

the granting of immediately effective relief in a 

legislative apportionment case, even though the 

existing apportionment scheme was found invalid. 

In awarding or withholding immediate relief, a 

court is entitled to and should consider the 

proximity of a forthcoming election and the 

mechanics and complexities of state election laws, 

and should act and rely upon general equitable 

a principles. With respect to the timing of relief, a 

court can reasonably endeavor to avoid a 

disruption of the election process which might 

result from requiring precipitate changes that could 

make unreasonable or embarrassing demands on a » 

State in adjusting to the requirements of the court's 

decree. 

      

Reynolds, supra; Order, supra, at 14-15 (Ervin, J. dissenting). 

Further, there is precedent in North Carolina for conducting 

elections under an unconstitutional plan in order to avoid undue   
 



  

64a 

disruption of the electoral process.” Permitting the legislature 

to expend its energy, best judgment, and resources on planning 

for and developing a constitutional plan for the Twelfth District 

based on the Year 2000 population data would accord with 

Supreme Court precedent, accommodate the "equitable 

considerations" recognized in Reynolds, and allow the filings, 

campaigns and elections for 2000 to proceed on schedule. This 

Court should keep in mind that whatever the decision is in this 

case, simple arithmetic and Constitutional mandate dictate the 

redrawing of at least some new congressional district lines for 

the year 2002 elections based on the year 2000 census figures. 

VI. STANDING 

Defendants contest Plaintiff Ronald Linville's standing to 

participate in this case. As Plaintiffs stipulate, Linville is not 

a current resident of the First or Twelfth Congressional 

Districts, the two districts being challenged as racial 

  

3 In Shaw v. Hunt, 517 U.S. 899 (1996) (Shaw II), the Supreme 
Court found that the Twelfth District, as drawn under the 1992 redistricting 

plan, was unconstitutional. On remand, the three-judge panel determined 
that the 1996 general elections would continue under the unconstitutional 

plan. 
[I]n exercise of this Court's equitable power to withhold 

the grant of immediately effective relief for found 

constitutional violations in legislative districting plans in 

order to avoid undue disruption of ongoing state electoral 

processes, the 1996 primary elections already held for 

congressional offices are hereby validated and the 1996 
general election for those offices may proceed as 

scheduled under state law to elect members of congress 

under the existing districting plan. 
Order, filed July 30, 1996 in Shaw v. Hunt, 92-202-CIV-5-BRat 2-3 (citing 
Reynolds, 377 U.S. at 585). 

    
 



  

65a 

gerrymanders.”” Final Pre-Trial Order, filed November 29 

1999, at {'s 20-23. Although he does not claim to be unhappy 

with his own district, Linville gives numerous objectionsto the 

Twelfth District and concludes that it is drawn along racial 

lines. Linville Draft Deposition, at 17, 20, 23, 25-26, 34, 56, 

57, 65,75-77. Linville further complains about being separated 

from his father politically, being implicitly told he was "too 

white to belong in the district right next to [him]," and being 

ndeliberately segregated immediately outside of a racially 

drawn district whose boundary was adjacent to his own 

precinct." Plaintiffs’ Response to Defendants’ Motion for 

Summary Judgment, at 22, n.11. Plaintiffs produced no further 

evidence which suggests that Linville has been personally 

injured by a racial classification, despite assurances at the 

beginning of the trial that they would do so. Trial Transcript, 

at 5, lines 10-12. 

Federal courts have an independent obligation to examine 

their own jurisdiction; standing "is perhaps the most important 

of [the jurisdictional] doctrines." United States v. Hays, 515 

U.S. 737, 742 (1995) (quoting F W/PBS, Inc. v. Dallas, 493 

U.S. 215, 230-31 (1990)). The party who seeks the exercise of 

jurisdiction has the burden of clearly alleging facts which 

demonstrate that he or she is a proper party to invoke judicial 

resolution of the dispute. Hays, 515 U.S. at 743. Even where 

a case has proceeded to final judgment after a trial, “those facts 

  

2 Although Linville was a resident of the Twelfth District under 

the 1992 Plan, under the 1997 Plan he is a resident and registered voter of 

the adjoining Fifth District. His precinct is 95.94 percent white. 12} 

 



  

66a 

(if controverted) must be ‘supported adequately by the evidence 

adduced at trial’ to avoid dismissal on standing grounds." Id 

(citations omitted). 

In the context of redistricting cases, a citizen has standing 

to challenge a racial classificationin federal court if that citizen 

is "able to demonstrate that he or she, personally, has been 

injured by that kind of racial classification." Id, at 744. 

Because of the difficulty in demonstrating this individualized 

harm, the Supreme Court created a presumption in favor of 

standing for residents of a challenged district. Hays, 515 U.S. 

at 744-45; accord Miller v. Johnson, 515 U.S. 900, 910-11 

(1995). However, where a plaintiff is not a resident of the 

challenged district, the plaintiff is not afforded the benefit of 

this presumption. 

[W]here a plaintiff does not live in such a district, 

he or she does not suffer those special harms, and 

any inference that the plaintiff has personally been 

subjected to a racial classification would not be 

justified absent specific evidence tending to 

support that inference. Unless such evidence is 

present, that plaintiff would be asserting only a 

generalized grievance against governmental 

conduct of which he or she does not approve. 

Hays, 515 U.S. at 745 (emphasis added). The Supreme Court 

repeatedly has refused to recognize a "generalized grievance 

against allegedly illegal governmental conduct as sufficient for 

standing to invoke the federal judicial power." Id., at 743 

    

    

 



  

  

67a 

(citations omitted). Consequently, plaintiffs who are not 

residents of a challenged district may sue only if they are able 

to make a specific evidentiary showing that they have been 

"personally classified by race." Id,, at 745; Shaw II, 517 U.S. at 

904; Bush, 517 U.S. at 957-58. 

By seeking to include Linville as a participant in this 

lawsuit, Plaintiffs ask this Court to grant standing to a class of 

plaintiffs which the Supreme Court has explicitly refused to 

recognize. Only where a non-resident plaintiff is able to make 

a specific evidentiary showing of personal injury will that 

plaintiff have standing to sue in federal court. Linville's litany 

of generalized grievances will not suffice to create standing. 

Because Linville is not a resident of the First or Twelfth 

Districts, and no specific evidence that he has personally been 

subjected to a racial classificationis before this Court, I would 

dismiss Linville as a plaintiff for lack of standing. 

Vil. CONCLUSION 

Lost amidst the smoking gun e-mails, the "uncontroverted" 

statistical information, and the indignant examinations of 

irregular district lines is Plaintiffs’ burden of proof in this case. 

The Plaintiffs must demonstrate by a preponderance of the 

evidence that a racial motivation predominated in the 

legislature's decision-making and that legitimate districting 

principles were subordinated to those racial motivations. The 

Supreme Court's remand in this case affords no relief from the 

responsibility of meeting this burden. Merely showing that 

race was an issue, that it was always considered, or that it had 

an influence on the ultimate outcome is not sufficient. 

 



  

68a 

The two men most knowledgeable about the 1997 

Congressional redistricting plan testified before this Court that 

political, not racial, motivations were the predominant factor in 

the General Assembly's decision-making process. Their direct 

testimony, even when confronted with the evidence relied on 

by the majority, proves that racial motivations did not 

predominate. Therefore, strict scrutiny should not be applied 

to the General Assembly's 1997 decision. 

Finally, I am compelled to note that this decision forces the 

North Carolina General Assembly to create a redistricting plan 

based on population figures from the 1990 census, numbers 

which everyone admits are outdated. This new plan will last 

only one year and will then be replaced by a plan based on the 

2000 census figures. When previously forced by this Court to 

redraw the Twelfth District in 1998, the General Assembly 

created a plan which garnered the approval of this Court and 

was pre-cleared by the Justice Department. Indeed, North 

Carolina's current Congressional delegation was elected under 

that plan in the 1998 general elections. Were the General 

Assembly to simply readopt the 1998 plan, the additional 

expenditure of legislative time, effort, and resources might be 

minimized. Otherwise, for the fifth time in 10 years, North 

Carolina's legislature must undergo the arduous task of 

reaching a consensus on the divisive and inherently political 

issue of congressional redistricting. 

  
   



  

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69a 

NOTICE OF APPEAL, MARCH 10, 2000 

[Caption Omitted in Printing] 

NOTICE OF APPEAL TO THE SUPREME COURT 

OF THE UNITED STATES 

Notice is hereby given that all defendants appeal to the 

Supreme Court of the United States from the March 7, 2000 

Opinion, order, and injunction and the oral denial at trial of 

defendants’ motion for summary judgment on the grounds of 

claim preclusion and virtual representation by the three-judge 

district court. 

This appeal is taken pursuant to 23 U.S.C. 31253, 

Respectfully submitted, this the 10th day of March, 

2000. 
MICHAEL F. EASLEY 

ATTORNEY GENERAL 

/S/ Edwin M. Speas, Je. 

Chief Deputy Attorney General 

N.C. State Bar No. 4112 

/S/Tiare B. Smiley 

Special Deputy Attorney General 

N. C. State Bar No. 7119 

 



  

70a 

/S/ Norma S. Harrell 

Special Deputy Attorney General 

N.C. State Bar No. 6654 

N.C. Department of Justice 

P.O. Box 629 

Raleigh, N.C. 27602 

(919) 716-6900 

[Certificate of Service Omitted in Printing] 

    

  

 



71a 

JUDGMENT OF UNITED STATES DISTRICT COURT FOR THE 

EASTERN DISTRICT OF NORTH CAROLINA, MARCH 8, 2000 

[Caption Omitted in Printing] 

JUDGMENT 

Decision by Three-Judge Court. This Action came to trial or 

hearing before the Court. The issues have been tried or heard 

and a decision has been rendered. 

IT IS ORDERED, ADJUDGED AND DECREED that this 
court finds that the 1997 Plan’s Twelfth District continues to be 

unconstitutional as presented. Defendants are enjoined from 
using the unconstitutional District 12 in future elections. The 
1997 Plan’s First District does not violate the Constitution and 
may thus be used in future elections. 

IT IS FURTHER ORDERED, ADJUDGED AND | 
DECREED that, as stated in open court, movant Norman 

Primus’ motion to appear as Amicus Curiae is DENIED. 

 



  

72a 

This Judgment Filed and Entered on March 8, 2000, and 

Copies To: 

Robinson Everett, Esq. Norman Primus 

P.O. Box 586 136 Gardner St. 

Durham, NC 27702 New London, Ct 06320 

Martin McGee, Esq. Adam Stein, Esq. 

P.O. Box 810 312 West Franklin St. 
Concord, NC 28026-0810 Chapel Hill, NC 27516 

Tiare B. Smiley, Esq. Robert Hunter, Esq. 

P.O. Box 629 P.O. Box 20570 
Raleigh, NC 27602 Greensboro, NC 27420 

March 8, 2000 DAVID W. DANIEL, CLERK 
/s/ Jolie Skinner 

(By) Deputy Clerk 

        

  

       



  

73a 

U.S. CONST. amend. XIV, § 1 

AMENDMENT XIV. CITIZENSHIP; PRIVILEGES AND 

IMMUNITIES; DUE PROCESS; EQUAL PROTECTION; 

APPOINTMENT OF REPRESENTATION; DISQUALIFI- 

CATION OF OFFICERS; PUBLIC DEBT; ENFORCE- 

MENT 

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Section 1. All persons born or naturalized in the United 

States, and subject to the jurisdiction thereof, are citizens of 

the United States and of the State wherein they reside. No 

State shall make or enforce any law which shall abridge the 

privileges or immunities of citizens of the United States; nor 

shall any State deprive any person of life, liberty, or 

property, without due process of law; nor deny to any person 

within its jurisdiction the equal protection of the laws. 

       



    
74a 

  

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97 HOUSE/SENATE PLAN A 

  

  

  

  
  

    

  
  

  

  

  

  

   
    

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76a 

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77a 

EXCERPTS FROM DISTRICT SUMMARIES FOR 
1997 HOUSE/SENATE PLAN A 

TOTAL POPULATIONS, ALL AGES 
  

  

  

  

  

  

  

  

  

  

  

  

  

    

Dist] Pop | White | Black | Am Ind | Asian/PI | Other 

1 1552.161] 268.458] 277.565] 3.461] 1.238 1.440 
100%| 48.62% 50.27% 0.63% 0.22% 0.26% 

2 1 552.152] 388.234] 154.108] 2.267] 4.183 3.363 
100%] 70.31%| 27.91%] 0.41%| 0.76%| 0.61% 

3 [552.622] 429.481] 109.358] 2.131] 5.625 6.02 
100% 77.72%) 19.79%] 0.39% 1.02%| 1.09% 

4 | 551.842 421.224] 116,006] 1.454] 10,770] 2.391 
100%| 76.33%)| 21.02%] 0.26%| 1.95%] 0.43% 

5 | 552,084 471.868] 75.177] 1.045] 2.381] 1.613 
100%| 85.47% 13.62% 0.19% 0.43% 0.29% 

6 |552.171] 493,140] 52.248 2,039] 3.279 1.463 
100%) 89.31%| 9.46% 037% 0.59% 0.26% 

7 1 552.382] 371,545] 133.985] 40.845] 2.791] 3.216 
100%] 67.26%| 24.26%] 7.39%| 0.51%] 0.58% 

8 | 553.143] 373.569] 153.396] 14.294] 5.541 6.343 
100%] 67.54%| 27.73%| 2.58% 1.00%] 1.15% 

90 [552.615 481.834] 61443] 1.517 6408 1413 
100%] 87.19%| 11.12%] 027%] 1.16%] 0.26% 

10 | 553.333] 512.213] 36,123] 933] 2.482 1,583 
100% 92.57%| 6.53% 0.17%| 0.45% 029% 

11 [552,089] 512.127] 29.276] 7.888 1.838] 96d 
100%] 92.76%| 530%| 1.43% 033% 0.17% 

12 | 552,043] 284.799] 257.644] 2.282] 5.630 1,689 
100%] 51.59%)| 46.67%] 041%| 1.02%] 0.31%             
    

  

  
 



  

78a 

EXCERPTS FROM DISTRICT SUMMARIES FOR 
1997 HOUSE/SENATE PLAN A 

  

  

  

  

  

  

  

  

  

  

  

  

    

VOTING AGE POPULATIONS 

Dist| Pop | White | Black | Am Ind | Asian/PI| Other 

I | 403,065 211.273] 187,573] 2,450 872] 955 
100%] 52.42%)| 46.54%] 0.61%| 0.22%] 0.24% 

2 419,009] 303,740 108.234] 1,649] 3.169] 2,307 
100%] 72.47%| 25.83%| 0.39%| 0.76%| 0.55% 

3 [417.769] 330971] 76,672] 1,657 4.012] 4.457 
100%] 79.22%| 18.35% 0.40%| 0.96%| 1.07% 

4 | 427.266] 332,013] 84,535 1,118] 7.927] 1,673 
100%] 77.71%] 19.79%] 0.26%| 1.86%| 0.39% 

5 | 428.181] 370222] 54.468] 774] 1.679] 1,039 
100%] 86.46%| 12.72%| 0.18%| 0.39%| 0.24% 

6 |426,321| 384.226] 37317] 1472] 2263 1,044 
100%] 90.13%| 8.75%| 0.35%| 0.53%| 0.24% 

7 | 408,299] 287.254] 90,009] 26.816] 2.067] 2.153 
100%] 70.35% 22.04%| 6.57% 0.51% 0.53% 

8 | 402,666] 283,487] 101,961] 9,006] 3.909 4213 
100%| 70.40%] 25.32%| 2.26% 0.97%] 1.05% 

0 |419,559| 371,456] 41,670] 1,110] 4358] 966 
100%] 88.53%| 9.93%| 0.26%| 1.04%| 0.23% 

10 | 425,367 396,936] 25,136] 696] 1,499 1,102 
100%] 93.32%| 5.91%| 0.16% 0.35%| 0.26% 

11 [430,111] 402,639] 20,455] 5,159] 1.257] 601 
100%] 93.61%| 4.76%] 1.20%| 0.29%| 0.14% 

12 | 414,784] 228,346 179.846] 1,671] 3.812 1,109 
100%)| 55.05%| 43.36%| 0.40%| 0.92%| 0.27%                 

    

  

  
 



  

  
  

79a 

EXCERPTS FROM DISTRICT SUMMARIES FOR 
1997 HOUSE/SENATE PLAN A 

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

REGISTRATION 

Dist| Pop | White | Black | Other | Dem | Repub 

1 |271,673| 148,208] 121,958 1,491] 235,336] 31,393 

100%| 54.55%] 44.89%] 0.55%] 86.62%] 11.56% 

2 |262,713| 197,138] 64,603 972| 188,416] 63,567 

100%| 75.04%] 24.59%] 0.37%] 71.72%} 24.20% 

3 |213,448( 177,975] 34,801 688] 148,801 54,152 

100%)| 83.38%| 16.30%] 0.32%] 69.71%| 25.37% 

4 | 315,782] 255,728] 55,959] 4,095] 200,635] 86,394 

100%|{ 80.98%] 17.72%] 1.30%} 63.54%] 27.36% 

5 295,332 261,355} 33,380 597} 172,461} 105,168 

100%] 88.50%] 11.30%] 0.20%] 58.40%] 35.61% 

6 1290,562| 266,904] 22,935 726f 143,304] 127,298 

100%| 91.86%] 7.89%] 0.25%] 49.32%] 43.81% 

7 |273,584] 193,592] 61,670] 18,322} 200,676] 63,969 

100%] 70.76%| 22.54%} 6.70%| 73.35%] 23.38% 

8 |233,898] 170,879] 58,907] 4,112] 160,694] 61,417 

100%] 73.06%] 25.18%) 1.76% 250% 26.26% 

9 [295,719] 267,583] 27,125 1,011} 153,291} 120,359 

100%] 90.49%] 9.17%| 0.34%] 51.84%] 40.70% 

10 | 300,037} 283,994] 15,676 365| 139,665] 140,41 

100%| 94.65%] 5.22%] 0.12%] 46.55%] 46.80% 

11 | 319,610] 304,158] 13,108] 2,344] 188,349] 111,979 

100%] 95.17%] 4.10%] 0.73%] 58.93%] 35.04% 

12 | 277,525] 150,264{ 126,488 773] 197,783] 65,708 

100%| 54.14%] 45.58%] 0.28%] 71.27%] 23.68%                 

 



  

80a 

EXCERPTS FROM DISTRICT SUMMARIES FOR 
1997 HOUSE/SENATE PLAN A 

ELECTIONS 
  

Dist Senate 

Gantt 

Senate 

Helms 

Lt. Gov. 

Rand 

Lt. Gov. 

Gardner 

Court 

Lewis 

Court 

Smith 
  

84,590 

53.28% 

74,188 

46.72% 

97,349 

61.83% 

60,092 

38.17% 

101,516 

69.66% 

44,207 
30.34% 

  

77,449 

47.00% 

87,350 

53.00% 

82,802 

51.02% 

79,483 

48.98% 

80,919 

54.34% 

67,993 

45.66% 
  

53,362 

41.53% 

75,119 

58.47% 

62,499 

46.85% 

70,906 

53.15% 

65,828 

53.48% 

57,263 

46.52% 
  

116,953 

58.79 

81,994 

41.21% 

104,429 

53.36% 

91,266 

46.64% 

91,593 

52.33% 

83,439 

47.67% 
  

71,185 

39.17% 

110,556 

60.83% 

88,395 

45.71% 

104,989 

54.29% 

82,168 

46.53% 

04,441 
53.47% 

  

65,644 

37.47% 

109,545 

62.53% 

73,141 

41.17% 

104,528 

58.83% 

63,286 

37.99% 

103,287 

62.01% 
  

75,154 

48.26% 

80,562 

51.74% 

91,897 

57.23% 

68,676 

42.77% 

87,320 

58.70% 

61,441 

41.30% 
  

64,574 

47.40% 

71,664 

52.60% 

76,221 

55.44% 

61,265 

44.56% 

69,792 

55.29% 

56,442 

44.71% 
  

79,462 
44.75% 

98,104 
55.25% 

72,891 
40.95% 

105,102 
59.05% 

60,368 
38.22% 

97,577 
61.78% 

  

69,023 

37.37% 

115,669 

62.63% 

77,694 

40.03% 

116,377 

59.97% 

73,264 

39.30% 

113,144 

60.70% 
  

11 86,212 

45.93% 

101,511 

54.07% 

94,396 

47.13% 

105,889 

52.87% 

91,924 

48.91% 

96,040 

51.09% 
    12   107,333   66.49% 

54,101 93,441   33.51% 

57,084   62.08%   37.92% 

85,103   61.54% 

53.177     

38.46% 

    
 



  

81a 

AFFIDAVIT OF ROY A. COOPER, III, WITH ATTACHED MAP 

(WITHOUT RESUME) 

[Caption Omitted in Printing] 

AFFIDAVIT OF ROY A. COOPER, 111 

Roy A. Cooper, III, being first duly sworn deposes and 

says: 
1 I am a native of Nash County, North Carolina. 

After receiving my undergraduate and law degrees from the 

University of North Carolina at Chapel Hill, I returned home to 

Nash County where I have practiced law since 1982. A copy 

of my resume is attached to this affidavit. 

2. In 1986, 1988 and 1990, I was elected to the 

North Carolina House of Representatives and in 1992, 1994 

and 1996, I was elected to the North Carolina Senate. During 

the 1996 Session of the General Assembly, I served as 

Chairman of the Senate Judiciary Committee and the Senate 

Select Committee on Congressional Redistricting. I had not 

previously served on any redistricting committee. 

3. My responsibility as Chairman of the Senate 

Redistricting Committee was to attempt to develop a new 

congressional plan that would cure the constitutional defects in 

the prior plan, and that would have the support of a majority of 

the members of the Senate, which was controlled by the 

Democrats, and the support of a majority of the members of the 

House, which was controlled by the Republicans. Under an 

order entered by the three-judge court in Shaw v. Hunt, the new 

plan had to be completed by March 31, 1997, to avoid the 

federal court imposing a plan on the State. The Senate’s efforts 

to meet this responsibility are recorded in the transcripts of the 

meetings of the Senate Committee and of the debates on the 

floor of the Senate. A true and accurate copy of these 

transcripts is included in the North Carolina Section 5 

 



  

82a 

Submission, 1997 Congressional Redistricting Plan (filed with 
the Affidavit of Gary O. Bartlett) as Attachments 97C-28F- 

4D(1)-(4). : 
4, Representative W. Edwin McMahan was 

appointed Chairman of the House Redistricting Committee by 
Speaker Brubaker. His responsibilities were essentially 

identical to mine. : 
5. Many people doubted that the General 

Assembly would be able to achieve a compromise between the 
Democratic controlled Senate and Republican controlled 
House. Redistricting generally is a task which becomes 

extremely partisan. Working with the leadership of the Senate 
and the House, however, Representative McMahan and 1 early 

on identified a single path by which a compromise might be 
reached and a new plan adopted. This path was to craft a plan 

which would cure the defects in the old plan and at the same 
time preserve the existing partisan balance in the State’s 
congressional delegation. The Senate Redistricting Committee 

made the first attempt to travel down this path. 

6. On February 20, 1997, after consultation with 

other Senate members, I presented a proposed plan, entitled 
Congressional Plan A (hereinafter Plan A), to the Senate 

Redistricting Committee. This plan was similar to alternative 

plans later proposed by the House Redistricting Committee and 

Representative McMahan and to the plan ultimately enacted by 

the General Assembly. Because Plan A turned out to be the 
prototype for the enacted plan, I will describe the goals the 

Senate leadership and I wanted to achieve in designing this 
plan. In addition, I will describe the process used to draw the 
districts in Plan A to achieve those goals. Particular attention 

will be given to Districts 1 and 12. 

; 3 We had two goals for the plan as a whole. The 

first goal was to cure the constitutional defects in the prior plan 

by assuring that race was not the predominate factor in 

    
 



  

83a 

constructing any district in the plan and to assure that 

traditional redistricting criteria were not subordinated to race. 

To accomplish this first goal, emphasis was placed on the 
following factors in constructing the plan: (1) avoidance of 
division of precincts; (2) avoidance of the division of counties 
when reasonably possible; (3) functional compactness 

(grouping together citizens of like interests and needs); (4) 
avoidance of long narrow corridors connecting concentrations 

of minority citizens; and (5) ease of communication among 
voters and their representatives. A comparison of the 
unconstitutional 1992 plan and Plan A demonstrates that this 

goal was accomplished. For example: (1) the unconstitutional 
plan divided 80 precincts while Plan A divided only 2 precincts 
(both of which were divided only to accommodate peculiar 
local circumstances); (2) the unconstitutional plan divided 44 

counties while Plan A divided only 22; (3) the unconstitutional 

plan divided 7 counties among 3 districts while Plan A did not 
divide any county among 3 districts; (4) the unconstitutional 

plan used “cross-overs,” “double cross-overs” and “points of 
contiguity” to create contiguous districts while Plan A used 
none of these devices. 

8. Our second goal, and the goal that made it 
possible for the General Assembly to agree upon and enact a 

new plan, was to maintain the existing partisan balance in the 

State’s congressional delegation, 6 Republicans and 6 

Democrats. Based on my discussions with Senate leaders and 
with Representative McMahan, I knew that any plan which 

gave an advantage to Democrats faced certain defeat in the 
House while any plan which gave an advantage to Republicans 
faced certain defeat in the Senate. Preserving the existing 

partisan balance, therefore, was the only means by which the 

General Assembly could enact a plan as required by the Court. 
To achieve this pivotal goal, we designed Plan A to preserve 

the partisan core of the existing districts to the extent 

 



  

84a 

reasonably possible and to avoid pitting incumbents against 
each other. One tool I used to measure the partisan nature of 

districts was election results gathered and analyzed by the 

National Committee for an Effective Congress (NCEC). The 

NCEC information was based on the results of a series of 

elections from 1990 to 1996. I also used older election results 
contained in the legislative computer data base. In the end, 
these election results were the principal factor which 
determined the location and configurationof all districts in Plan 
A so that a partisan balance which could pass the General 
Assembly could be achieved. 

9. The two goals we applied in drawing the plan as 
a whole were also applied in drawing Districts 1 and 12. To 
assure that race did not predominate over traditional 

redistricting criteria, District 12 was drawn so that (1) only 1 
precinct was divided (a precinct in Mecklenburg County that 
was divided in every local districting plan); (2) its length was 
reduced by 46% (from approximately 191 miles to 102 miles) 

so that it became the third shortest district in the state; (3) the 
number of counties included in the district was reduced from 
10 to 6; (4) all “cross-overs,” “double cross-overs” and “points 

of contiguity” were eliminated; and (5) it was a functionally 

compact, highly urban district joining together citizens in 
Charlotte and the cities of the Piedmont Urban Triad. To 

assure that race did not predominate over traditional 
redistricting criteria, District 1 was drawn so that (1) no 
precincts were split; (2) the number of counties included in the 
district was reduced from 28 to 20; (3) the number of divided 
counties included in the district was reduced from 18 to 10; (4) 
all “cross-overs,” “double cross-overs” and “points of 
contiguity” were eliminated; (5) the length of the district was 
reduced by 24% (from approximately 225 miles to 171 miles); 
and (6) it was a functionally compact district joining together 
citizens in most of the rural and economically depressed 

      

  
 



    

85a 

counties in the northern and central Coastal Plain region of the 

State. 
10. Maintaining Districts 1 and 12 as Democratic 

leaning districts was critical to achieving the pivotal goal of 

protecting the partisan balance in the State’s congressional 

plan. Achieving this goal for Districts 1 and 12, however, 

presented special problems. First, the House insisted that 
District 1 had to be drawn in a manner that protected 
Congressman Jones in District 3 and that avoided placing 

Congressman Jones’ residence inside the boundaries of District 
1. Second, District 12 had to be drawn in a manner that 

avoided placing Congressman Burr’s and Coble’s residences 
inside the boundaries of District 12. Third, District 12 had to 

be drawn in a manner that would not include Cabarrus County, 
Congressman Hefner’s home county. Fourth, significant 
portions of Congressman Watt’s and Congresswoman 
Clayton’s former districts had been eliminated because of the 

directive in Shaw v. Hunt, thus lessening their strength as 

incumbents. Finally, we were concerned that Congressman 
Watt might lose some votes because of his race and that 
Congresswoman Clayton almost certainly would lose votes 

because of her race. To help protect District 1 as a Democratic 

leaning district, we included the heavy concentrations of 
Democratic voters in the cities of Rocky Mount, Greenville, 

Goldsboro, Wilson and Kinston, and to help protect District 12 
as a Democratic leaning district, we included the heavy 

concentrations of Democratic voters in Charlotte, Greensboro 

and Winston-Salem in the district. 
11. In developing Congressional Plan A, I also 

became convinced from expert studies before the General 

Assembly and my own knowledge and experience that Section 
2 of the Voting Rights Act likely required the creation of a 

majority-minority district in the central to northern part of the 
Coastal Plain, where the largest concentration of black citizens 

 



  

86a 

reside. See the attached map entitled, North Carolina Counties 
by Percent of Population Black, which illustrates the 
correlation between the boundaries of District 1 and this 
concentration of black citizens. That belief was balanced with 

my primary goals of curing the defects in our prior plan and 
protecting the existing partisan balance in the Congressional 
delegation in locating and drawing District 1 in Congressional 
Plan A. 

nae On Pebruary 20, 1997, 1° presenied 
Congressional Plan A to the Senate Redistricting Committee 

and on February 25, 1997, Representative McMahan presented 

his first plan, Congressional Plan A.l1, to the House 

Redistricting Committee. Congressional Plan A and A.1 were 
similar. Based on NCEC election results, however, I was 

concerned that Representative McMahan’s plan unnecessarily 
diminished Democratic performance in Districts 2, 8 and 12, 

Congressmen Hefner’s, Etheridge’s and Watt’s districts. 
13. Over the next several weeks, Representative 

McMahan and I were able to resolve my concerns and the 
concerns of the Senate. leadership by negotiation. The 
compromise we reached finally was reflected in a plan entitled 
“97 House/Senate Plan.” This is the plan that was enacted by 

the General Assembly on March 31, 1997. The first plan, 

“Congressional Plan A,” and “97 House/Senate Plan,” the 

enacted plan, are very similar. One of the differencesis that the 
first plan had 24 divided counties while the enacted plan 
reduced the number of divided counties to 22. 

14. The “97 House/Senate Plan” is a negotiated 

bipartisan plan which contains districts located and shaped in 
a manner to avoid constitutional problems and to protect the 
existing partisan balance in the State’s Congressional 

delegation. Racial fairness was, of course, considered in the 
development of the plan. Our obligationsto representall of our 
constituents of all races and to comply with the Voting Rights 

    

  
  

  

 



  
    

87a 

Act demanded that racial fairness be considered. The plan 
enacted is racially fair, but race for the sake of race was not the 

dominate or controlling factor in the development or enactment 
of the plan. In drawing initially Congressional Plan A and in 

negotiating the eventually enacted plan, partisan election data, 

not race, was the predominant basis for assigning precincts to 

districts including precincts in Districts 1 and 12. That a large 
proportion of precincts assigned to District 12 have significant 

black populations is simply the result of a strong Democratic 

voting pattern among blacks. Moreover, District 12 is not even 
composed of a majority of black citizens; it is a district in 
which white citizens constitute 52% of the district’s total 
population, 55% of the districts’ voting age population and 
54% of the districts’ registered voters. Simply, District 12 is a 
Democratic island in a largely Republican sea. 

. This the 25th day of February, 1998. 

/s/ Roy A. Cooper, III 

Sworn to and subscribed before me this 

25th day of February, 1998. 

Is Beverly Adams 

Notary Public 

My commission expires: 1/24/2000 

 



    
88a 

  

[This page intentionally left blank.] 

    
  
  

   



  

  

  

North Carolina Counties by Percent Population Black with 1st Congressional District Overlay 

  
  

  

      

   

1 Cirntuzs 

oth « Comden 

    

     

   

  

Orange 

  
Randoiph 

Johnston 26
8 

Carteret 

  

Legend 

€7_hs_ashp 

Percent Black Habsesn 
[J oot-4es 

[CC] ees-150e 

[] 1582-2508 

5] 6-36 
3766-6145 

  

          

 



  

90a 

[This page intentionally left blank.] 

  

      

5 

Ww 

n 

V 

y 
I\ 

d 

d 

C 

( 

f 

RY
 

"m
e 

~~
 

 



    

  

            

91a 

Roy A. COOPER, III, TRIAL TESTIMONY (SELECTED 

PORTIONS) 

[*334] A. Well, 1 read the opinion in Shaw versus Hunt, and 

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

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

consideration. And I think in general that meant making the 

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

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

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

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

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

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

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

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

of these concerns that were pointed out by the court. 

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

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

and draw a constitutional plan? 

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

constitutional. 

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

A. Most definitely. 

Q. What was the other one? 

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

legislature drew this plan and not the federal courts. 

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

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

Q. But? 

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

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



  

92a 

with that and the Senate was majority Democratic and the 

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

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

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

the stick. 

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

occurred with respect to the incumbents, the congressional 

delegation for North Carolina? 

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

a delegation of six Democrats and six Republicans after the 

election. 

Q. I'm sorry to interrupt you. 

A. We knew that would be important because the bottom 

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

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

considerationsthat you have to take under consideration when 

you try to do that. 

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

interest of incumbents? ; 

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

consideration is that incumbents are in office, they have a 

constituency. They have people who advocate for them in the 

General Assembly. Oftentimes they have close relations with 

legislators, and so incumbents can affect votes in the General 

Assembly. 

And although it would be nice to draw these districts in 

a vaccuum and to make them look nice and to completely 

ignore partisan politics and completely ignore who's the 

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

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

    

  

     



  

  

  

93a 

do that and you have to take into consideration what 

incumbents think about the plan. 

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

your train of thought. As a benchmark, the congressional 

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

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

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

Republican, Democrat; is that correct? 

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

may know. : 

The Witness: That's right. 

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

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

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

congressional elections. 

The Witness: Yes, sir. 

Judge Boyle: All right. 

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

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

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

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

that the partisan fairness of the plan would be an overriding 

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

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

never predict exactly. 

By Ms. Smiley: 

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

that Judge Boyle has just refreshed our recollection with, was 

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

redistricting at that time there was a balance? 

 



  

94a 

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

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

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

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

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

wanted to draw the plan to favor Democrats and Republicans 

in the House. 

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

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

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

manner. So Representative McMahan and I decided early on 

and the leadership of both the House and Senate decided early 

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

split. 

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

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

was fair. 

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

accommodation of incumbents, and accommodating 

incumbents also meant votes in the legislature. As a general 

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

A. Yes, you do. Legislators live in congressional districts. 

Many times their constituents have been in a congressional 

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

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

almost every legislator in the General Assembly has an 

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

district should be drawn. 

Q. And do sometimes the different interests of legislators, 

incumbents conflict? 

    

  

 



  

    

    

95a 

A. Sometimes they do. 

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

having a 6/6 split? 

A. Yes, they do. 

Q. Would they sometimes conflict with having a preplan 

or constitutional plan? 

A. Most definitely, yes. 

Q. But you have to garner votes? 

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

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

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

you could not create a plan that would be constitutional? 

A. Repeat the question, sorry. 

Q. Some accommodation might not be made things that 

people wanted? 

A. Yes. 

Q. Because it might make the plan vulnerable? 

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

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

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

did you yourself manipulate the calculations? 

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

instructions to a person who normally would do the actual 

mechanical calculations. And most of the time that was Gerry 

Cohen. : 

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

[*340] work while you were not there? 

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

just on general instructions, yes. 

 



  

96a 

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

or what was your working relationship with Mr. Cohen? 

A. Gerry is maybe more familiar with maps and precincts 

and make up and Democratic performance and Republican 

performance than anybody in the state. He has been working 

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

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

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

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

to do something to try to fix this. 

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

that could be accommodated? 

Yes, he would. 

Did you work with other legislators? 

Yes, I did. 

And did you see a lot of plans? 

R
o
 
P
O
P
 

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

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

ought to do. 

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

handle the process of getting their input and making sure 

[*341] that you could get your votes? 

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

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

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

their own district without thinking about the other 11 districts 

in the state and that would sometimes cause a problem because 

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

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

  

       



  

  

        

97a 

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

public. We had discussions, suggestions from the public on 

what we ought to do. 

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

talking of members of the General Assembly, not members of 

congress? 

The Witness: But members of congress also gave us 

their ideas. 

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

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

other districts? 

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

other state legislators who had interests in this issue they want 

present us with plans as well as members of congress. 

By Ms. Smiley: 

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

running for office or he's the incumbent? 

A. Yes 

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

which Judge Boyle has anticipated, is could you describe as 

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

consultation with congress persons or their aides? 

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

or her representative except for Congressman Taylor in this 

process. 

Q. And is his district really in play? 

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

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

much everybody agreed that we ought to straighten up the line 

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

 



  

08a 

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

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

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

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

contact that you had or when in the process? 

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

of Democratic members of congress wherein they came to 

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

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

Some of the members of congress came individually on 

separate occasions and talked with me. 

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

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

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

they started working off of that and giving me ideas or 

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

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

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

representing them and many of them wanted to do that. 

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

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

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

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

Senate committee. I think it was in February sometime. 

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

right. You were talking to legislatorsand congress people. Did 

you begin talking with Representative McMahan? 

A. Yes. 

  

  

    
   



  

    

99a 

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

history of your discussions with him in the early time before 

you started negotiating your plans? 

A. Very early in the process Representative McMahan and 

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

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

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

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

We talked about making sure that we kept our lines of 

communication open and we began the process of presenting 

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

consideration. 

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

Republicans had presented in the summer of 1996; do you 

recall where the 12th District was in that plan? 

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

Mecklenburg down across the south east to Robeson County? 

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

Representative McMahan early on about that? 

A. I told him that was just completely unacceptable and 

that plan would never pass the Democratic Senate. 

Q. Was that early in the process? 

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

Q. Why? 

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

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

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

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

that was the motivation behind it being presented -- 

 



  

100a 

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

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

A. Yes it did. 

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

discuss with Representative McMahan? 

A. That's correct. 

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

leave it, when you said that was no go? 

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

were other members of the legislature who wanted to do that 

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

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

would have resulted in a strong Democratic leaning map, and 

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

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

that pretty early in the process. 

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

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

(Lunch recess taken.) 

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

Judge Thornburg: You may proceed. 

By Ms. Smiley: 

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

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

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

answer from you, but -- 

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

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

was data from election results in 1998 that went into the 

computer in addition to other demographic information. We 

    

 



  

101a 

used that same information that was from the 1990 Census for 

redrawing these maps for 1997. There were election results. 

I think there was a Lieutenant Governorsrace, a Supreme Court 

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

from 1988 that was in the computer. 

Q. What information did you find most useful in looking 

at District 12? : 

A. The election results were the predominate number that 

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

supplemental election results that we used, but with this 

overriding issue concerning 6/6 partisan split, the election 

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

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

was up on the screen. 

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

indication of Democratic\Republican? 

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

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

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

the primary election information that we used. 

Q. What was the primary? 

A. The primary information was election results that we 

received from an organization called the National Committee 

for an Effective Congress, which was an organization that I 

think was primarily funded by the National Democratic Party. 

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

congress across the nation and to specifically help with states 

that were doing congressional redistricting. 

Q. And how would you go about getting that information 

from them? 

 



    
102a 

                      

   
   
   

  

   
   

   
   

  

   

  

   

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

map makers with the committee in Washington and whenever 

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

map we would send it up electronically and they would send 

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

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

be. 

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

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

1996 and the state computer data base only had the 1988 

election results. 

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

N.C.E.C. data? | 

A. There was a column that was an inclusive cumulative £ 
WV performance number that they came up with taking into 

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

performance number. So, for example, if youhad a 55 perce; 

Democratic performance, then that would be very good. Below 

50 would be of concern. 

  

%* % % 

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

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

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

12th Congressional Districts because that specifically was th 

district that was unconstitutional. The Court had real problems 

with the long narrow corridors without people, splitting. of 

precincts, point contiguity, crossovers, double-crossovers. 

 



103a 

  

   

                    

     

   
     

   

    

     

  

   

We set out to eliminate all of those problems that they 

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

we wanted to make certain that race was not the predominate 

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

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

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

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

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

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

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

were cited by the Court in Shaw v Hunt. 

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

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

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

were in the previous congressional district. If you had started 

from square one with people who were already in a 

congressional district with members of congress that already 

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

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

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

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

this was really no different than coming from another census, 

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

we wanted to address and feel we did address. 

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

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

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

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

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

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

 



  

104a 

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

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

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

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

dramatic because of the constitutional concerns that were raised 

by the Supreme Court. 

%* % % 

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

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

before completely out of it. 

Judge Boyle: What was your reason for not taking 

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

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

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

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

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

everyone happy from a political standpoint to take the 

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

because it made the 12th a much stronger Democratic district 

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

much more Republican, which made him happy. 

And in addition, there was a geographic symmetry to 

putting the Triad altogether and making sure that Greensboro, 

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

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

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

and we thought it made geographic sense to do that. 

By Ms. Smiley: 

    

  

  
  

 



  

    

105a 

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

Had you and Representative McMahan had any discussions and 

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

about the 12th? 

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

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

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

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

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

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

decided that the only issue was where we went. 

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

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

High Point and Greensboro? We came to the conclusion it 

made sense to connect them altogether and it made sense to 

keep the Triad together and it made sense from a partisan 

perspective that made the 12th more strongly Democratic and 

made the 6th more strongly Republican, making everyone 

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

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

passed and these members of the legislature are looking very 

carefully at elections and election results, and we were trying 

to get enough votes to get this plan passed. 

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

went to High Point? 

A. Yes. 

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

Greensboro? 

A. Yes. 

 



  

106a 

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

explained some of the reasons why you made that decision to 

go to Greensboro? 

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

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

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

just only to go into High Point. 

Q. Where could you put those Greensboro Democrats if 

you don't go -- 

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

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

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

Greensboro and get the blacks or get the black community? 

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

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

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

black precincts; if you know? 

A. They were mostly Democratic leaning precincts, 

Democratic voting precincts. 

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

A. I can not remember and 1 specifically did not go 

through and try to remember technically about all of these 

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

African Americans or not. It is obviously a substantial number 

of African Americans that were in those strongly Democratic 

leaning districts. 

  
   



      

107a 

Q. Were there a majority of white precincts from 

Greensboro that also went into the district? 

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

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

white precincts, but most are all Democratic leaning precincts. 

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

leaning? 

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

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

has to happen to get votes. 

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

Greensboro, were you attempting in any way to achieve a 

particular racial percentage in the district? 

Mr. Everett: Objection, leading. 

Judge Thornburg: Overruled. 

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

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

fine with a lot of people who wanted to support Congressman 

Watt and wanted to make certain that there was incumbent 

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

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

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

that. 

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

Congressman Coble was satisfied with what happened to 

Greensboro? 

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

we did. 

Q. All right. 

 



  

108a 

A. Because it increased the Republican performance of his 

district. 

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

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

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

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

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

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

Court had not specifically overturned the First District, we 

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

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

do something about that to avoid a constitutional problem with 

the First District. 

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

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

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

had to deal with the constitutional issue of making sure that 

race was not the predominate factor and making sure it looked 
nice. 

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

the redistricting committee, concerning the Voting [#359] 
Rights Act and the fact that there had been some past patterns 
of discriminatory voting in northeastern North Carolina, that 

you had a large concentration of African Americans living in 
the northeastern part of the state and that we should have a 

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

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

is a map that shows the African American concentration in that 
area? 

A. Yes, uh-huh. 

      

 



  

  

109a 

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

A. [ think this illustrates that there are numerous counties 

in northeastern North Carolina that have a high percentage of 

African American population and that we simply use that core 

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

was a little unsure as to whether we could draw a 

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

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

pretty clear that we could draw a nice compact district that 

made geographic sense, that put together communities of 

interest, that was a strongly leaning Democratic district, that 

was slightly majority/minority population. 

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

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

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

Senate. 

Q. And ultimately became the plan that the Senate passed 

and negotiated with the House? 

A. Yes. 

Q. Okay. And is that District 1 more compact, possibly 

than the District 1 in the enacted plan? 

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

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

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

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

change parts of the First District in order to accommodate those 

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

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

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

certainly does the job. 

 



  

110a 

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

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

district and that's why you need to? 

A. I would say yes. 

* xk 

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

things you were dealing with. 

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

district. You just had the election between Congressman 

[*363] Etheridge and Congressman Thunderburk and the parts 

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

public and people were weighing in on that. 

Q. And you had a freshman Democratic congressman in 

that district? 

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

District. Congressman Jones represented that district and he 

was really the only Republican in the east and Representative 

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

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

that he was certainly trying to protect the only Republican 

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

came into the negotiations. 

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

the shape in terms of where 1 -- 

      
 



  
      

111a 

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

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

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

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

works together, it's a chain reaction. ; 

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

you had to look at all the districts? 

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

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

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

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

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

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

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

problem, you sometimes would create another problem in 

fixing a problem that you had. : 

Q. In ultimately drawing District 1, what considerationwas 

given to race? 

A. We felt that it was important to have a 

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

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

standpoint, we did pay attention to race to have a 

majority/minority district. 

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

percentage that you were looking at and that you were talking 

about? 

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

percent of the population. 

Q. Why was that? 

 



  

112a 

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

of African Americans who live in northeastern North Carolina. 

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

evidence that was presented to the committee about past 

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

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

* % % 

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

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

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

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

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

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

interest in northeastern North Carolina with those counties that 

are up there. 

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

constituents, Senator Jeannie Lucas, who represents Durham. 

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

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

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

were satisfied with his representation. It was a largely urban 

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

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

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

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

work. 

Q. What about putting it in the First District? 

      

  
   



  

  
  

113a 

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

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

that are the same as the agrarian rural northeastern counties and 

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

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

the First District. 

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

Durham County that had been in Congressman Watt's old 

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

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

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

Fourth District. 

Q. What was that problem? | 

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

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

District then you had a problem with the Fourth District no 

longer necessarily being Democratic leaning. So for all of 

those reasons, we didn't do that. 

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

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

plan? | 

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

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

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

was to move east and there were concerns from Congressman 

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

Robeson County. The Lumbee Indians were concerned about 

 



  

114a 

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

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

process, but those eventually were ironed out. 

Q. Were there immediate problems with District 3 when 

you and Representative McMahan started negotiating? 

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

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

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

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

be than our plan. 

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

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

with the incumbent? 

A. Well, you mean Walter Jones, Congressman Walter 

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

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

First Congressional District under the '92 Plan and he got 

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

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

important point that Representative McMahan made to me, that 

they needed to make sure that Congressman Jones resided in 

the 3rd District. 

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

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

providing a residence for the incumbent? 

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

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

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

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

Farmville. : 

    

  
 



  

115a 

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

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

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

cohesive district, but you wouldn't have the Congressmanin the 

district he represents? 

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

Western part of Pitt County. 

Judge Boyle: Right. What was the purpose in taking 

the 3rd around to Lenoir and Wayne? 

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

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

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

the House Republicans and Representative McMahan gotten 

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

gleaned -- that since Congressman Jones represented Wayne in 

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

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

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

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

could have been other ancillary reasons why we did what we 

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

the reasons I specifically recall because one of my earlier plans 

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

* % % 

 



  

116a 

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

change actually and real geographic change in the 12th District 

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

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

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

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

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

a better knowledge of what district they were in. 

Judge Boyle: Do all of those arguments hold true 

today? 

The Witness: For the ‘97 Plan? 

Judge Boyle: Yes, sir. 

The Witness: Absolutely. Yes. 

Judge Boyle: But the ‘98 Plan is not geographically 

compact and you now have the experience of one election 

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

how do those arguments remain valid? 

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

a computer to make every district as geographically compact as 

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

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

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

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

the ‘97 Plan than under the ‘98 Plan. 

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

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

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

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

thing? 

    

   



              

117a 

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

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

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

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

or ‘97 Plan. 

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

‘08 Plan than in the ‘97 Plan? 

od x 

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

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

Democratic or some Democrats from Mecklenburg County 

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

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

you were working on it? 

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

represented by the dean of the North Carolina delegation, 

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

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

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

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

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

plan was to significantly improve the Democratic performance 

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

Congressman Hefner had been elected because he was an 

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

increasingly become more Republican leaning and the best way 

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

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

 



  

118a 

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

with Congressman Mcintyre, but [*382] Congressman Hefner 

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

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

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

Democratic voters in Mecklenburg, you have to go through 

strong Republican suburban districts, so that was just never 

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

presented -- 

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

didn't he? 

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

Cumberland. I lost my train of thought. 

Oh, Senator Cochrane had presented a plan similar to 

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

which went from Mecklenburgall the way to Robeson, but, and 

I talked with Senator Cochrane about that and other 

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

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

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

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

probably what it was. 

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

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

Justice? 

A. Yes. 

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

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

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

Justice and their maximization policy and had to draw a black 

    
 



  

  

  

    

119a 

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

contacts with them when you were drawing the plan? 

A. No. 

Q. And what was your first contact with them? 

A. When 1 flew to Washington with members of the 

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

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

Department. 

Q. Was it the last? 

A. Yes. 

Q. And was it a memorable meeting? 

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

Shaw v. Hunt and there was very little problem with 

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

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

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

done. And I had mentioned in my deposition numerous times 

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

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

were much more concerned with making sure that the plan was 

[*384] constitutional under Shaw v. Hunt. 

Q. And that it was by partisan? 

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

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

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

the legislature, partisan considerations come into play, and 

where people live come into play, and incumbents come into 

play.” And it is very difficult trying to practically and 

realistically put together majority votes without taking these 

 



  

120a 

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

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

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

suppose? 

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

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

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

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

* % *% 

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

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

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

Isn't that the question you were asked? 

A. Yes. And we had to do it for a variety of reasons. 1 

would have felt more uncomfortable about going for 

preclearance had we not had a majority/minority in the 1st 

District. 

Q. You would have felt more uncomfortable? 

A. Yes, sir. 

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

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

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

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

meeting, did you have any discussions with the Attorney 

General’s office about preclearance? 

A. Yes. 

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

unlikely to be precleared without a majority black district? 

    

  

  
 



  

  
    
  

121a 

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

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

redistricting committee and other attorneys advocating for a 

majority/minority district and that there could be Voting Rights 

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

and draw geographically compact district. So it was the right 

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

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

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

* % % 

[*403] A. I don't think anything is assured. Congressman 

Watt was an incumbent. We paid attention to all incumbents 

and, yes, we looked at race. As I testified before, it was 

important racial fairness, but we did not specifically reach any 

type of threshold in race in the 12th District. | 

Q. You say you didn't try to reach any threshold in race. 

As far as the ‘97 Plan, the change for the ‘92 Plan, didn't you 

basically try to achieve as close to 50 percent as you could get 

without getting there? 

A. No, we did not have any type of goal. We first looked 

at trying to cure the constitutional defects and made sure that it 

was still a strongly leaning Democratic district. I think the fact 

that it has a relatively high number of African Americans is a 

fine thing. It was a benefit. It was one of the considerations 

particularly there were as you've asked me before, there were 

people who were pushing for a higher percentage, but there was 

also the consideration of making sure that the Sixth [*404] 

District was more Republican. That was something that 

 



  

122a 

Congressman Coble wanted, so all of those factors came into 

play. 

Q. Nevertheless, at the end of the day in 1997, all of the 

predominately black precincts in Mecklenburg had been in the 

1992 Plan were retained in the 1997 Plan; isn't that true? 

A. Probably most all of them were, but with the addition 

of a whole lot more. 

Q. And that was because of the deletion of Durham and of 

this sliver over in Gaston? 

A. Because of what the Court told us to do, we had to 

make sure that this plan looked a whole lot nicer than it did and 

race didn't predominate. - 

[*406] A. We cut off Gaston, we cut off Alamance, we cut off 

Orange, cut off Durham and took all of those out of the 12 and 

kept the core, the Triad to Mecklenburg core fattened it, made 

it look nicer. Took in a lot more Democratic leaning voters, 

systems as we could and made it a nicer looking district. 

Q. In you take in African Americans, add them, you are 

taking in always also Democratic leaning voters 95 percent of 

the time; isn't that true? 

A. Yes. African Americans generally are strongly 

Democratic leaning voters, yes. 

                
 



    

    

123a 

* % % 

[408] Q. Now, with respect to the map of the 12th District, 

I just want to be sure on this. Looking at this map, would you 

be -- and the map is Joint Exhibit 106. Would you be able to 

identify for me what might be referred to as the "Greensboro 

black community"? 

A. Only by the fact that you have on this map across here 

precincts that say 40 to 100 percent black. Because of this 

map, I can point it to you and say, there, but I could not tell you 

if you gave me a map without that information on it where that 

would be. 

[409] Q. You would think that area identified by the cross 

red or the checker red marks on Exhibit 106, those with 40 to 

100 percent concentration would be what's referred to as the 

Greensboro black community? 

A. I don't have a concept of what the Greensboro black 

community ask. If you are taking into account those precincts fy 

that have only 40 percent African American, then you have 

substantially less than the majority of the African American. 

This is the first time I have seen this map. I wouldn't be able to 

say where the Greensboro black community would be. 

Q. By the same token, were the High Point black 

community or Winston-Salem or any of the other communities 

there? 

A. Right. 

 



  

124a 

ik 

[*413] Q. Now, there is the last sentence of this e-mail states: 

I have moved Greensboro black community into the 12th and 

now need to take about 60,000 out of the 12th. 

Do you know what he was referring to when he said he 

had moved the Greensboro black community? 

A. I do not specifically remember even getting this e-mail. 

And that is not a specific instruction that I would have given to 

him, but I am presuming that he is talking about moving the 

part of Greensboro that we had already discussed previously. 

He and I at some point had discussed moving the 

Guilford County area into the 12th and for all of the reasons 

that I have talked to you about before, making it a stronger 

Democratic district, connecting the Triad. It made everybody 

happy. 
Obviously, Congressman Coble's district was better, 

Congressman Watt certainly wanted more of his constituents - 

than he had before and he was certainly happy getting more of 

those constituents and happy getting a higher percentage of 

African Americans in his district. And for all of those reasons 

we decided to go into Guilford County. But I am presuming 

that this is Mr. Cohen's [*414] descriptive term for that part of 

Guilford County that we eventually moved into the 12th 

District. 

Q. Now, that's the part that.we have been -- we looked at 

earlier the map that was predominately black? 

Ms. Smiley: Objection. Form of the question, unless 

there's a foundation that he knows. 

Tudee Thornburg: Overruled. 

    

  

   



  
125a 

A. You know, I'm a little embarrassed sitting here. I'm not 

quite sure whether it's majority African American or not, but I 

know there's a substantial number of African Americans in that 

part of Guilford County that we moved to. 

%* % % ® 

[*422] Q. What, with respect to the cause of balance, did you 

hear your legislators talking about partisan balance, or was that 

a concern? 

A. Most legislators would want a plan drawn that would be 

partisan in their party's favor. Partisan balance came about 

because we had to make sure it passed both chambers, and that 

became a driving force in the process. 

Q. So as far as you could tell, there was no strong feeling 

when the session began on the part of the legislator individual 

legislators about maintaining partisan balance? 

A. Probably not at that time because they were not thinki 

about the practical aspects of getting a plan passed. I . _ 

was and Representative McMahan was. And as the process 

went forward into 1997, that became a very important issue in 

my going sure, that we got the plan passed. And it was an issue 

I think that was good for the public as well. 

Q. So in the initial point when they are coming together to 

begin the session, the legislators would have been more 

concerned about keeping counties together, not splitting them 

in redistricting and having minor representation than [*423] 

they would have been about partisan balance? 

  
‘Ms. Smiley: Object to the form of the question. 

Judge Thornburg: Overruled.    



  

126a 

A. I think that's very difficult to say. At that point going 

into the session, partisan balance hadn't become the important 

issue that it became once we started negotiating plans. Like I 

said, that's not the kind of thing that legislators like to talk 

about publicly. It's not pretty and I don't particularly enjoy 

sitting here talking about it. But it became a very important 

issue in the practical problem of getting the plan passed 

through the legislature. 

* % % 

[*424] Q. Now, did the issue of minority representation 

maintain importance as you went through the process? 

A. Racial fairness was important to this plan, yes. 

Q. Well, by “racial fairness”, what do you mean? 

A. I believed that we needed to have a majority/minority 

district in the 1st District, and I think that that went a long way 

toward racial fairness and that the plan overall was fair to 

African Americans across the state. 

Judge Boyle: Suppose you were in the minority and the 

opposing party is in the majority and they decided to redistrict 

and not only went up to 50 percent African American in two 

districts, but went all the way up to, say, 80 percent. Would 

that be racial fairness or would that be racial unfairness? 

They could make two districts safe beyond belief, but 

-- and that could be done for partisan reasons, if you follow me. 

It's a slippery slope you get on when you decide you are going 

to engage in some use or acknowledgment of race. 

[425] A. Well, that's true, but I did not read the Shaw v. Hunt 

case to say we were doing race. 

    

  

 



  

  

127a 

Judge Boyle: So politics could override race if politics 

were the true star of your decision? 

The Witness: Yes, it could have been, could have. 

Judge Boyle: Some party could decide they would put 

80 percent minority in a district and thereby deprive their 

opponents of what would be predictable support in anot 

district? W 

The Witness: Well, I think it's very, very difficult to 

draw a district in North Carolina with an extremely high 

percentage of African Americans under Shaw v. Hunt. 

Judge Boyle: But you did it in 92 in District 1. All 

you would have to do would be to hopscotch around to other 

counties. In the 7th, you could make it more minority/majority 

than it is now. 

The Witness: The Supreme Court told us we couldn't 

do that. 

Judge Boyle: I thought when you went back in ‘97, you 

felt like you had to do that in order to pass the Justice 

Department? 

The Witness: No, not with respect to the 12th. With 

respect to the 1st, we thought that it was important [*426] to 

have a majority/minority district; that wasn't the overriding 

factor. If we could not draw a district that looked reasonably 

geographically compact and met the other criteria, then we 

would not have drawn a majority/minoritydistrict. But it all fit 

nicely together, so that's why we did it. 

Judge Voorhees: Now, you testified that the legislature, 

in coming up and reviewing various plans over the process of 

developing the ‘97 Plan, was mindful of the court decision in  



  

128a 

the Shaw case and Voting Rights Act and the other factors that 

you have mentioned. 

Now, would it be accurate to say that the various 

members of your committee and of the legislature were 

cognizant of the percentages of minors who were being placed 

into the various districts, but particularly the 12th and the 1st? 

The Witness: Yes. I mean, that was something that 

was printed out for every district and yes, everyone would have 

looked at that figure and some members would have cared 

more about it than others. 

Judge Voorhees: I may have misunderstoodyou earlier. 

I thought you said you didn't know what the final percentage 

was on 12 when the ‘97 Plan was enacted. 

The Witness: 1did. I'm sure that I did. Yes, I did. 

[*427] Judge Voorhees: If 1 thought otherwise, I just 

misunderstood what you said? 

The Witness: 1 think he asked me what percentage of 

African Americans were in Guilford County that we put into 

the 12th. I can't remember. I didn’t remember that particular 

figure. 

Judge Voorhees: 1 think the question had to do with 

whether you were trying -- that the relevant powers in the 

legislature were trying to keep the number just under 50 

percent? 

The Witness: No, that was not. 

Judge Voorhees: You say you weren't trying to do that? 

The Witness: No. 

Judge Voorhees: In so saying, you are not saying the 

legislature was not aware of the plans discussed? 

    

  

 



  
    

129a 

The Witness: We did know, absolutely we knew a lot 

of people I think were happier the African American percentage 

went up as a result of Guilford County being moved into the 

12th. 

Judge Voorhees: Was there a viable motive within the 

legislature to keep it just below 50? 

The Witness: No. 3 

Judge Voorhees: The final percentage was sheer [*428] 

happenstance? 

The Witness: Absolutely. I mean, if you were trying 

to do that, then you would be running afoul of what the Court 

told us to do and that's just not what we did. 

Judge Voorhees: All right. 

[¥429] Q. I'm reading what purports to be a copy of a 

statement you made to the March 25, 1997, meeting of the 

House committee. I think that overall it provides for a 

geographical, racial and partisan balance throughout the State 

of North Carolina. Now, what were you referring to? Was that 

the plan that you were referring to? 

A. I would assume that that's what I was referring to. I 

said many times I thought the plan was racially fair and -- 

Q. Racially fair. What do you mean by "racial balance"? 

A. I don't know. I don't know what particular context I 

was making. 

Q. Well, let me ask you this: Do you know what you mean 

by "partisan balance"? 

A. Yes, sir.  



  

130a 

Q. What does that mean? 

[¥430] A. Keeping the 6/6 split. 

Q. All right. When you use the term "racial balance," 

wouldn't it follow that you were referring to maintaining a 10 

to 2 racial balance between Whites and African Americans in 

congressional delegation? 

A. No. I think I testified in the deposition and the testimony 

earlier that African Americans would have a fair shot to win 

both the First and the 12th Districts, and I think that's racially 

fair. 

Your Honor was asking me, I think you had gotten the 

impression that we didn't pay any attention to race, but we did 

pay attention to race. That was one of the factors that was 

considered. But it was certainly not the predominate factor. I 

talked about why all the different reasons, why we did the 

Mecklenburg to the Triad District and certainly the fact that an 

African American has a fair shot at winning that district is part 

of racial fairness and I have testified to that. 

Q. I want to ask you more about what you mean by "fair 

shot." With respect to the earlier testimony you gave and 

testimony you gave at the deposition, didn't you say that you 

were -- you had to have a majority black First District? 

A. For a lot of reasons I thought that was a very important 

thing to do. 

[*431] Q. And I asked you whether it was necessary to have 

it? 

A. I don't know whether it was necessary or not. I think 

probably it was important for three reasons. It was numerous 

reasons, but, one, I think trying to get votes into the General 

Assembly. I think we would have lost a lot of votes if we had 

  

  
   



131a   
not done that. Secondly, we may have run afoul of the Voting 

Rights Act if we had not done that. So all of those things 

together were important. I thought we had a lot of interest that 

we needed to make sure to keeping the agrarian core all of that 

was important in dealing with the First. 

Q. You might have run afoul on preclearance with th 

Department of Justice under Section 5? » 

A. We may have. 

Q. When you say something “had to be”, doesn't that mean 

that's a predominate motive? 

A. Well, I think that it needed to be and should have been 

for many reasons, and I have given you those reasons. It being 

the right thing to do. Needing the votes, past history of 

discrimination, voting patterns, potential Voting Rights Act, 

violations, preclearance, all of those things added up. This is 

something we ought to do, so we did it. 

Q. You should -- when you say you “had to”, doesn't that 

mean it was mandatory and that was predominant? 

[*432] A. Idon't know what your question means about wh 

was making it mandatory. All of those things told us that we 

needed to do it, so we did it. 

Q. I believe you earlier testified that you thought it had to 

be done? 

Ms. Smiley: Asked and answered, your Honor. 

A. To get the plan passed, because it's the right thing to do, 

because it may run afoul of the Voting Rights Act. If we don't 

-- you can draw a nice compact district by doing it. All of 

those things add up.  



  

132a 

Q. But didn't you say that having a majority black First 

District was something that had -- you said was not to be 

compromised? Did you -- didn't you say that? 

A. I don't remember that exact language, but I think it -- I 

would agree with that. Yes, I think it was important. 

Q. So, basically, as you viewed the legislature had no 

choice but to create -- 

A. Of course we had a choice, we could have not done it. 

Q. You would have been close? 

A. Probably close to that. 

Q. Wasn't it your testimony if you would have any plan at 

all you would have to have a majority black district? 

A. That was very important. I'm not going to sit here and 

testify that we just simply would not have passed the [*433] 

plan if that had not been the case, but it's close to that. It was 

very important for all the reasons that I said. 

%* % %x 

[*436] Q. I'm going to ask you if indeed there are 60,000 

African Americans in Greensboro and the precincts are in the 

12th District. Do you have any interpretation of the sentence 

as to “now need to take about 60,000 out of the 12th” in the 

e-mail which was directed to you? 

Ms. Smiley: Object to speculation. 

[*437] Judge Thornburg: Overruled, if he knows. 

A. I don't know everything that -- I don't specifically 

remember this e-mail for one thing; and secondly, I don't know 

all the other things going on at the time. But I would presume 

-- and I know I'm not supposed to presume, but I presume the 

    

  

 



  

  

  

133a 

60,000 we're talking about is total population of needing. If he 

went to Greensboro and put an area in Greensboro into the 12th 

that now he needed to take 60,000 people out of the 12th in 

order to make the population correct. That's what I presume. 

Q. Wouldn't you also presume that the Greensboro black 

community approximated 60,000 when you read that? 

A. No, I would not. We certainly don't believe they [ 

all African Americans in Guilford County that were put into the 

district. We looked at the Democratic leaning districts in 

Guilford County, and for all the reasons I stated, we put them 

in the 12th. 

[*438] Q. Let me ask you about earlier provisions, statements 

in this e-mail where it begins by stating: by shifting areas in 

Beaufort, Pitt, Craven Counties, I was able to boost the 

minority percentage in the 1st District from 48.1 percent to 

49.25 percent. The District was only as the white perce 

was 49.67 percent. 

Do you recall a change in the plans that were being 

prepared by Mr. Cohen, under your general direction, which 

achieved such a boost in the minority percentage? 

A. I don't remember this e-mail specifically and I do not 

remember these specific instructions about counties and 

precincts, but I do know when we were dealing with the 2nd 

and the 3rd and all of those things that go in between, that 

sometimes because it's beside the 1st, sometimes we would 

drop below or just below [*439] majority/minority and we 

would have to do things from time to time to have a  



  

134a 

majority/minority, but not radical types of moves. This e-mail, 

obviously, I don't remember it specifically, but reading it now 

had to do with that issue of African Americans and what 

percentage. You know, it could be that Gerry was just had that 

on his mind and used in that last sentence, used black 

community and Greensboro as a descriptive term. I don't 

know, that's not something that I would have instructed him to 

do. 

Q. Now, the next sentence: This was all the district could 

be improved by switching between the 1st and 3rd. And then 

reading further down, as to improvement, isn't it pretty clear 

that Mr. Cohen viewed it as an improvement to increase the 

African American percentage? 

A. I don't know what he was thinking, but, I mean, it's 

pretty clear that at this point we were in one of those times 

where we were trying to make sure that the district had 

majority/minority and he was probably operating under some 

other parameters in the 1st that he couldn't move for some 

reason or another, and I don't know what stage of the process 

this was. 

Q. Isn't it pretty clear, Senator, that he was informing you 

that he believed at least he was improving the district, he was 

informing you and Senator Leslie Winner that he was 

improving the district by switching precincts [#440] and 

increasing the African American percentage? 

A. I don't remember this specifically of the ones again, but 

probably we were in one of those situations where we had 

moved something in the First District dropped a little below 50 

percent and we were getting it back up again, and that's what he 

meant by improvement, but I don't remember specifically. 

    

  

  

   



135a 

‘ Q. And that would be in line with your belief that you had 

| to have over 50 percent? 

1 A. Yes, sir. 

1 Q. And you were getting there one way or the other and he 

was looking at all the options? 

A. Not one way or the other, we had to get there makin 

sure we had a compact district that looked good, that compli 

with Shaw v. Hunt and took into account all the other 

considerations I testified to here today. 

* % %   [*441] Q. So you gave this statement to the Senate and 

wouldn't it be inferred from that statement that Shaw v. Hunt 

was [*442] inapplicable as long as you didn't get to 50 percent? 

A. Let me tell you why I made that statement. It had not 

really occurred to me until this final plan had been prepared, 

  

that this was an argument for constitutionality that it wasn't a 

majority/minority district. 

In fact, Mr. Everett, you were over in the General 

Assembly and you came to see me and several other people and 

were telling people this was an unconstitutional plan. And a lot 

of people have a lot of respect for you, including me, and there 

    

were people who began to ask me questions about the 

constitutionality of the plan. And in all of the other reasons 

that I gave I think were good arguments for the 

constitutionality, but this was an argument that came to mind 

said, wait a minute, where should the Court start looking at this 

issue as to when a district is predominately racial? And it 

became clear, made common sense to argue at least the process      



  

136a 

for the sake of argument that the test should not even be 

triggered if you don't have a majority/minority. 

I didn't start out this process by trying to get it just 

under majority/minority for that reason. That was an idea and 

an argument that came to me later on in the process and I 

consulted with the Attorney General’s office. They said that's 

a good argument to make, and I made it. 

      
 



137a 

AFFIDAVIT OF W. EDWIN MCMAHAN (WITHOUT RESUME) 

[Caption Omitted in Printing] 

AFFIDAVIT OF W. EDWIN MCMAHAN 

W. Edwin McMahan, being first duly sworn, sero 

and says: 

| # I am a native of Buncombe County, North 

Carolina and have resided in Charlotte, North Carolina since 

1974. A copy of my resume is attached. 

2 In 1994 and 1996, I was elected to the North 

Carolina House of Representatives. During the 1997 Session of 

the General Assembly, Harold J. Brubaker, Speaker of the 

House, appointed me to serve as Chairman of the House 

Congressional Redistricting Committee. I had no previous 

involvement in congressional redistricting. 

3. My responsibility as Chairman of the Hous 

Redistricting Committee was to attempt to develop a @ 

congressional plan that would cure the constitutional defects in 

the prior plan, and that would have the support of a majority of 

the members of the Senate, which was controlled by the 
Democrats, and the support of a majority of the members of the 

House, which was controlled by the Republicans. Under an 

order entered by the three-judge court in Shaw v. Hunt, that 

task had to be completed by March 31, 1997, to avoid the 

federal court imposing a plan on the State. 

4, Senator Roy A. Cooper, III, was appointed 

Chairman of the Senate Redistricting Committee by President 

          
  
  

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138a 

Pro Tem Marc Basnight. His responsibilities were essentially 

identical to mine. 

5 Many people doubted that the General 

Assembly would be able to achieve a compromise between the 

Democratic controlled Senate and Republican controlled House 

on the most partisan legislative task, redistricting. Working 

with the leadership of the Senate and the House respectively, 

however, Senator Cooper and I early on identified a single path 

by which a compromise might be reached and a new plan 

adopted. This path was to craft a plan which would cure the 

defects in the old plan and at the same time preserve the 

existing partisan balance (6 Republicans and 6 Democrats) in 

the State’s congressional delegation. 

6. To cure the constitutional defects in the prior 

plan, we had to be sure that traditional redistricting criteria 

were not subordinated to race. To achieve this goal, the 

leadership of the House and I wanted to avoid splitting any 

precincts, to avoid splitting counties when reasonably possible, 

to eliminate all of the “cross-overs,” “double cross-overs” and 

“points of contiguity” from the prior plans, to facilitate 

communication among voters in a district and their 

representatives in Congress, and to place citizens with similar 

needs and interests in the same districts to the extent reasonably 

possible. 

7 To protect the existing partisan balance, the 

leadership of the House and I recognized that we would need 

to protect incumbents and to preserve the cores of the prior 

districts to the extent consistent with our goal of curing the 

defects in the prior plans. The means I used to check on the 

partisan nature of proposed new districts was the election 

    

  
   



139a 

results in the General Assembly’scomputer data base (the 1990 

Helms-Gantt election and the 1988 elections for Lieutenant 

Governor and one of the Court of Appeals seats). I also used 

more recent election results to evaluate the proposed Districts 

2 and 4 -- the districts that we felt were the most competitive 

from a partisan viewpoint. 

8. On February 20, 1997, Senator coo 

presented Congressional Plan A to the Senate Redistricting 

Committee and on February 25, 1997, 1 presented 

Congressional Plan A. 1, to the House Redistricting Committee. 

Congressional Plan A and A.1 were similar. 

9, Over the next several weeks Senator Cooper and 

[ were able to resolve the few differences between the two 

plans. The compromise we finally reached is reflected in a plan 

entitled “97 House/Senate Plan A.” This is the plan that was 

enacted by the General Assembly on March 31, 1997. It 

achieves the goals the leadership of the House and I had. It 

cures the constitutional defects in the prior plan and it protec 

the existing partisan balance in the State’s _—_—— 

delegation. The plan also meets one-person, one-vote 

requirements and, with regard to District 1, meets Voting Act 

requirements. 

10. 97 House/Senate Plan A is not an 

unconstitutional racial gerrymander. 97 House/Senate Plan A 

is a negotiated bipartisan plan which contains districts located 

and shaped in a manner to avoid constitutional problems and to 

  
  

  
protect the existing partisan balance in the State’s 

Congressional delegation. Racial fairness was, of course, 

considered in the development of the plan. Our obligations to 

represent all of our constituents of all races and to comply with  



  

140a 

the Voting Rights Act demanded that racial fairness be 

considered. The plan enacted is racially fair, but race for the 

sake of race was not the dominate or controlling factor in the 

development or enactment of the plan. The dominate and 

controlling factors in developing the plan were (1) curing the 

constitutional defects in the prior plan and (2) protecting the 

existing partisan balance. Two indications that race was not 

‘dominate in drawing the plan are the fact that 12 of the 17 

members of the House who are black voted against 97 

House/Senate Plan A and the fact that two black members of 

the House, Representatives Fitch and Michaux, have claimed 

that the plan we enacted is not racially fair to blacks. 

11. The efforts by the House of Representatives to 

meet their responsibilities in enacting a new congressional 

redistricting plan are recorded in the transcripts of the meetings 

of the House Redistricting Committee and the debate on the 

floor of the House. A true copy of these transcriptsis included 

in the North Carolina Section 5 Submission, 1997 

Congressional Redistricting Plan (filed with the Affidavit of 

Gary O. Bartlett) as Attachments 97C-28F-4E(1) through 97C- 

28F-4F(1). 

This the 26th day of February, 1998. 

/s/ W. Edwin McMahan 

Sworn to and subscribed before me this 

26th day of February, 1998. 

/s/ Frances S. Carraway 

Notary Public 

My commission expires: 12/20/99 

    

  

 



  

  

141a 

W. EDWIN MCMAHAN, TRIAL TESTIMONY (SELECTED 

PORTIONS) 

[*462) W. Edwin McMahan, being first duly sworn, testified as 

follows during cross examination: 

By Mr. Everett: 

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

questions. You, of course, are Representative McMahan) 

identified in the deposition. 

With respect to the formulation of the 1997 Plan and its 

boundaries, to the extent there was a difference in participation 

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

final details of that emerged more from the Senate committee 

or from your committee? 

A. My recollection is that it actually came probably more 

from the chairs of the two committees negotiating individually. 

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

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

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

deposition in preparation for the appearance today? w 

A. Yes, sir, I have. 

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

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

more fully? 

A. Having read the deposition and some of the answers that 

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

representation of what [ intended to say. 

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

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

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

stated. Is that still your recollection?  



  

142a 

A. District 1, no question is because of the makeup of the 
House on our side and the number of minorities that we had to 
deal with on the House side. Certainly, when we [*464] looked 
at District 1, race was a factor and we determined early on that 
we could draw that district and make it more compact and 
geographically compact and also address the race issue. 
Q. But was it your belief that it was necessary to have a 
majority/minority district in order to obtain preclearance? 
A. Yes, sir, one district, yes Sir. 

Q. And that was the one in the northeast? 
A.  That’s correct, sir. 

Q. So in your instructions to Mr. Jones, who was your 
resident, did you inform him of this particular determination? 
A. Again, we looked at one, it ws never really a big issue as 
far as whether it would be a majority/minority district because 
what we were doing is primarily looking at it to make it more 
compact. And it certainly, from the very beginning, as 
Linwood Jones drew the map and we talked with the Senator 
and looked at it, it could be done, the maj ority/minority,as well 
as geographically compact. | 
Q. Now, was it then your testimony that the objective, the 
purpose of having a majority, black majority African American 
district in the northeast was a purpose that you were not going 
to compromise. You were going to get there [*465] one way 
or the other? | 
A. Well, it was one of the factors certainly that we needed 
to address. : 
Q. And did you have a belief from what you had been 
informed that without that particular district it would not be -- 

    

  

 



143a 

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

black district? 

A. Icertainly recall that we felt, in order to get preclearance, 

it would need to be a majority/minority district. 

  
Q. Finally did you develop alternatives which you felt were 

more compact than those that were finally adopted for [ 

majority district? 

A. Would you repeat the question?   
Q. In other words, in your planning, did you perceive ways 

of getting to a majority black district that were more compact 

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

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

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

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

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

Mr. Everett: I have no further questions. 

Judge Boyle: Was it your understanding, as you [*466] 

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

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

Constitution? 

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

being in violation of the Constitution. 

Judge Boyle: How about District 12? 

The Witness: We knew that the three judge panel had 

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

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

The Witness: I'm sorry. 

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

District 12 violated the Equal Protection Clause and you could 

not continue to use that?  



  

144a 

The Witness: That's correct, sir. 

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

exercise in '97? 

The Witness: Yes, sir. 

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

Court directly speaking to that, was it the sense and 

understanding of the House that that district was likewise in 

violation of the U.S. Constitution as composed? 

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

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

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

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

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

Judge Boyle: Does that mean there was a recognition 

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

Do you want me to say it again? 

The Witness: Please. 

Judge Boyle: Was there the sense or the understanding 

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

constitutionally repromulgate, readopt, District 1 in the same 

form as it existed in the '92 Plan? : 

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

responsibility to look at the map and where we could make 

changes and make fewer counties divided, no precincts 

hopefully divided, which certainly included District 1. Because 

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

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

changes, yes, sir. 

Judge Boyle: Thank you. 

    

  

  

   



  
  

    

145a 

Judge Thornburg: Your concern at that point was 

primarily compactness as opposed to racial matters? 

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

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

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

balance was very, very important as well as geography 

compactness, because at that time there were like 80 count 

divided and a number of precincts, maybe 80 precincts were 

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

correct. 

Judge Thornburg: Thank you. 

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

Judge Boyle, so there's no misunderstanding? 

Judge Thornburg: Yes, sir. 

By Mr. Everett: 

Q. TI'mtryingto find -- here is the 1992 Plan and up here is 

the First District. You are not a lawyer? 

A. (Witness nods head.) 

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

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

to you simply with respect to the 1st District in the 1992 Plan, 

which extended from the Virginia border almost down to South 

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

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

unconstitutional district? 

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

Honor. 

Judge Thornburg: Overruled. 

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

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



  

146a 

also try to see if we could make it more geographically 

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

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

on racial fairness. 

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

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

unconstitutional at that time? 

A.  Icertainly felt that it needed to be redrawn. Whether it 
was because it was unconstitutional or because you could look 

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

Everett. 

Q.  Youare saying you are not sure whether you had belief 
one way or the other? 

A. No, sir, I'm not. 

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

had been held unconstitutional by the Supreme Court, was it 
your belief that you could reconstitute this District without 

being subject to any issue as to constitutionality if you got the 
percentage of African Americans below 50 percent? 

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

considered. It was primarily the fact that we felt the reason it 
was unconstitutional was because, again, the way [*470] it was 

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

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

factors. I think geographic compactness was more important, 

we felt, than the racial percentage. 

Q.  Letme ask you this, then: when you got ready to present 

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

for allowing or having the new plan, which I believe is right 

    

  

  

  

 



147a 

here, the reason for allowing it was that it was below 50 percent 
African American and, therefore, the shape didn't matter? 
A. Judge Everett, I was asked that in my deposition. I went 
back and read the minutes. I did say that on the floor as one of 
the factors. I'm not an attorney. I didn't mean to interpret that 

  

to mean it's now constitutionally correct. I quite honestly, 
know, Senator Cooper made that statement and I had picked up 
on that and that was the reason that I actually made that 
statement. 

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

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  statement that he had made, and in trying to persuade the 
House members to adopt the plan, you so informed them with 
respect to the 12th District in the 1997 Plan? 

A. As far as the racial percentage? 

Q. Yes. 

A. I think the question was asked, what was the racial 
[*471] percentage? I can assure you, though, that was not the 
primary objective that we had in drawing 12, was to try Ww 

maintain a certain percentage of minorities. 

Q. Didn't you specifically say that you had gotten it up to 46 
percent or above 46 percent? Didn't you tell the members of 
the House that you had done the best you could in order to 
satisfy the Department of Justice and satisfy the courts? 
A. Well, again, racial fairness was an issue and I had to deal 
with the House that had 18 minor members, so it was certainly 

an issue and people had asked the question of where the 
percentage was, but, again, our first attempt, I think was like 40 
percent. We were trying to make it as Republican as possible 

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



  

148a 

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

question that it was 46 percent. 

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

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

Democrats? 

A. The Senate Plan was 46 percent. 

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

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

having the higher percentage of African Americans in the 12th 

District as possible? 

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

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

A. Yes, sir. 

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

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

with a lot of other factors. 

Q. And the partisan breakdown of the House at that time 
was 61/59? 

A. Yes, sir, that's correct. 

Mr. Everett: Thank you, your Honors. 

Judge Voorhees: Now, you said that you felt the 1st 
District needed to be redrawn from the '92 Plan and that you 
weren't sure whether that was because of constitutional concern 
or because it just needed to have more compact shape? 

The Witness: Yes, sir. We, of course, did not get any 
kind of ruling on One, but it was only a 12. But when we 
looked at the map again, we were trying to look at the map 
overall, primarily to address 12, but that affected the other 

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

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149a 

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

because of the way it was configured. 

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

Court sent a concern about shape? 

The Witness: Yes, sir. 

Judge Voorhees: So whether it was a fundamentz{f) 
concern or specific concern that the Supreme Court voiced 
about shape, that's still the reason why you felt it had to be 
reconfigured? 

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

interpretation. 

Judge Voorhees: Would that have been the sense of your 

colleagues, as far as you could tell? 

The Witness: Yes, sir, I believe so. 

Judge Thornburg: Are there any questions by defense 
that aren't covered in the deposition and the affidavit or by way 
of explanation of what's been asked here this morning? 

Ms. Harrell: We would like to ask a few, your Honor gy 
If I may approach the witness and give him a notebooks? He's 
not going to use most of them. This was prepared way in 

advance. 

Judge Thornburg: All right. 

Redirect Examination 
By Ms. Harrell: 

Q. Representative McMahan, you referred to your plan a 
few moments ago. Were you speaking about the plan that 

[*474] you presented to the House committee? 

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

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

Representative McMahan?  



  

150a 

A. Okay. 

Q. And is that labeled House Selecting '97 Congressional 
Plan 8.1? 

A. Yes, itis. 

Q. And is that the plan that you were speaking about that 
you presented to the House committee? 

A. Ms. Harrell, I believe so. You know, when you look at 
these maps, it takes a little bit of time to make sure, but I 
believe that's it. I do recall it was labeled 8.1. 
Q. All right. And did you refer to the percentage of 
minorities in your Senate District 12 in your House Plan? 
A.  Aslrecall, it was 40 percent having read the information 
in the minutes of the meetings. 

Q. Allright. And were you trying to make the Senate 12th 
District in your plan more competitive or less competitive for 
Republicans? 

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

Q. And when you became Chairman of the House 
Congressional Redistricting Committee, did you meet early on 
with Senator Cooper? 

[*475] A. Yes, we did. 

Q. And based on your understanding with your meeting 
with Senator Cooper, what were your overall goals in trying to 
steer this plan through the committee? 

A. Again, he and I sat down and talked about what we 
thought was necessary in order to get this approved. I don't 
think very few people in the legislature felt that we could do it, 
that we could get the bodies together because, of course, the 
House was Republicanand the Senate was Democratic. So we 

    

  

 



151a 

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

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

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

and I both agreed on was maintaining the 6/6 balance, which 
currently existed in the congressional delegation. And we 
needed to make sure we did that. We wanted to try to look 
geographic compactness and divide as few counties and n 
precincts, if it was possible. It ended up we did a good job on 
that. We talked about racial fairness. We knew we would have 

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

substantial number of minorities I would have to deal with and 

talk to and we wanted to be fair. 

So geographic compactness and, of course, the 
incumbency issue. We were -- obviously knew that, you 

[*476] know, that it was probably important to try to protect as 
many of the incumbents as we could. So those were the 
overall, I think the majority of the issues that we agreed that 

would have to be addressed. 

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

concerned about in the negotiations? 

A. The one we spent the most time on, as it turned out, 
would be 2 and 4, and then 3 was important, too, because those 

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

  

were trying to make sure, again, to maintain this 6/6 balance. 
So 3, 2 and 4 got more attention, as it turned out, than any of 

the others. 

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

A. Yes, they are.  



  

152a 

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

districts? 

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

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

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

trying to make 2 as Republican as possible. 

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

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

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

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

you? 

A. Yes 

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

House Committee? 

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

and I redrew. 

Q. And with regard to trying to work with minority 

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

support your bill? 

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

the House side. 

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

accomplish the goals that you started out with regard to the 

redistricting process? | 

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

actually Senator Cooper was surprised that we were able to get 

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

Judge Voorhees: What were the numbers, do you recall? 

      

  

 



  

    

  

153a 

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

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

it on our side, but I believe like 85. 

By Ms. Harrell: 

Q. Anddid you feel like the basic objectivesthat you [*478] 

started out with were met in the plan? | a 

A. Yes, ma'am, I do. 

Judge Thornburg: Did you say a majority of the 

minority members of the House voted against? 

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

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

but they offered a number of amendments on the floor because 

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

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

influence in District 12. So they offered amendments on the 

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

but we were able to defeat those amendments. 

Judge Boyle: Were they trying to add Durham back 

it? Ww 

The Witness: I believe Representative Michaux brought 

it back to Durham, I believe so. 

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

The Witness: I think that's correct. 

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

be brief. 

Judge Thornburg: All right, sir. 

Recross examination 

By Mr. Everett:  



  

154a 

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

about the area of dispute, major controversy that was over 

around 2 and 4? 

A: Yes, sir 

Q. So then would it be correct that 12, the idea of 12 was 46 

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

be compromised. You are not going to compromise that part; 

the big dispute was to 2 and 4? 

Ms. Smiley: Objection. 

Judge Thornburg: Overruled. 

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

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

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

this district with whatever the percentage of African Americans 

was? 

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

geographic compactness to make it acceptable in the fact of not 

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

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

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

Cooper and I discussed as one of the criterias. 

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

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

compact? 

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155a 

AFFIDAVIT OF DAVID W. PETERSON, PHD (WITHOUT 
ATTACHMENT)   [Caption Omitted in Printing] 

AFFIDAVIT OF DAVID W. PETERSON, PHD fe 

DAVID W. PETERSON, PHD, being duly swom, 

deposes and declares the following:   
Identity 

1. I am president of PRI Associates, Incorporated, a 
company whose chief activity is providing statistical litigation 
support. I am also recently retired as Adjunct Professor in the 
Institute of Statistics and Decision Sciences at Duke University, 
Durham, North Carolina, where for more than twenty years I 
taught courses in the theory and application of statistics. I a 
co-author of a book entitled Use of Statistics in ron 
Employment Opportunity Litigation, the guest editor of a 
special issue of the journal Law and Contemporary Problems 
devoted to statistical inference in litigation, and the contributor 

of a chapter to each of two other books on the use of statistics 
in litigation. I have testified as an expert statistical witness in 
more than thirty cases in federal district courts around the 
nation, including the Eastern District of North Carolina, and 
worked with legal teams as a statistical expert in more than two 
hundred different cases. I have testified for and advised 

defendants as well as plaintiffs.  



  

156a 

Assignment 

2. | am retained in this matter by the defendant to 

examine the statistical relationship between the boundary of 

North Carolina’s Twelfth Congressional District as created by 

the North Carolina General Assembly on March 31, 1997 and 

the racial and political makeup of the residents in that District 

and the surrounding area. In particular, I am asked to 

determine the extent to which political affiliation might explain 

as well as, or better than, race the boundary of District Twelve. 

Most particularly, I am asked to determine whether, based on 

the statistical pattern of association relating the boundary of the 

Twelfth District and the racial and political makeup of nearby 

residents, race appears to have been the predominant factor in 

defining that boundary. 

Conclusions 

3. Based on an examination of the data available to me, 

I conclude that 

a. There is a substantial correlation between the 
path taken by the boundary of the Twelfth district and the 

political preferences of the residents of the precincts touching 

that boundary, the tendency being to include precincts within 

the District which have relatively high Democratic party 

representation. 

b. Theres also a substantial correlation between 

the path taken by the boundary of the Twelfth District and the 

racial composition of the residents of the precincts touching 

    

  

 



  

  

157a 

that boundary, the tendency being to include precincts within 

the District which have relatively high black representation. 

c. Because the correlation found in a. is as large 

or larger than that found in b., it follows that the path taken by 

the boundary of the Twelfth District can be attributed to 

political considerations with at least as much statisti 

certainty as it can be attributed to racial —_— 

other words, there is no statistical indication that race was the 

predominant factor determining the border of the Twelfth 

District; there is at least one other explanation that fits the data 

as well as or better than race, and that explanation is political 

identification. 

d. There is a substantial correlation, precinct by 

precinct, between the fraction of a precinct’s residents who are 

black and the fraction who favor the Democratic political party 

over the Republican. 

e. Among the few border precincts where the 

above correlation does not exist, the boundary of the Twelfth 

District appears to have been drawn at least as much wit 

purpose of creating a Democratic majority within the District 

as with creating a black majority. 

f. I also determined that blacks constitute less 

than half of the residents of District Twelve, and that people 

who identify more strongly with the Democratic Party than the 

Republican Party constitute more than half the residents of that 

District. This lends further credence to conclusions c. and e., 

above.  



  

158a 

Underlying Data 

4. The information on which my conclusions rest 

consists primarily of the computerized data base used by the 

North Carolina Legislature to draw the boundaries of districts 

under challenge in this lawsuit. This file permitted me to 
determine, precinct by precinct, 

a. the number of residents therein by racial 

category, according to the 1990 US census, 

b. the number of voting age residents therein by 

racial category, according to the 1990 US census, 

c. the number of registered voters therein, by 

racial category, according to local voter registration records, 

d. the number of people who voted for each major 

candidate in the 1988 Court of Appeals election, 

e. the numberof people who voted for each major 

candidate in the 1988 Lieutenant Governor election, 

f. the number of people who voted for each major 

candidate in the 1990 Helms - Gantt US Senatorial election, 

and 

g. the number of registered voters by political 

affiliation.’ 

  

' In 69 of the State’s 100 counties, these counts can be inferred for 
each precinct within the county. For the remaining 31 counties, precinct 
level information is not available so we used Minor Civil Divisions instead. 
Of the nine counties touching or included in the Twelfth District, only 
Davie County is among the 31 counties not having precinct level 
information. 

    

    

 



  

  

  

159a 

[ also relied on numerous maps of North Carolina supplied to 

me by the State, showing the boundaries of the Districts and the 

identities of the precincts bordering them. 

Analysis: Correlation of Race with Party Affiliation 

5. Using the data file described above, I calculated ® 

each of the North Carolina precincts the following seven 

percentages: 

a. the percentage of the resident population who 

are black,’ 

b. the percentage of the voting age population 

who are black, 

c. the percentage of the registered voters who are 

black, 

d. the percentage of the voters who voted for the 
Democratic candidate in the 1988 Court of Appeals election, 

e. the percentage of the voters who voted for the 

Democratic candidate in the 1988 Lieutenant Govern 

election, 

f. the percentage of the voters who voted for the 

Democratic candidate in the 1990 Helms - Gantt US Senate 

election, and 

  

? Nearly all of the racial minority people living in the vicinity of the 
Twelfth District are black. I have repeated all of the analyses described in 
this affidavit using all minorities in lieu of blacks, and the results are 
identical in all material respects.  



  

160a 

g. the percentage of the voters who are registered 

as Democrats.’ 

6. I then plotted each of the State’s 2217 precincts on 

a graph, based on its registered voter black percentage (Sc 

above) and its registered voter Democratic percentage (5g 

above). The result is Chart 1. This chart, which looks like an 

inverted tornado, displays a strong correlation between racial 

composition and party preference. It shows that in precincts 

with high black representation, there is a correspondingly high 

tendency for voters to favor the Democratic Party. In precincts 

with low black representation, there is much more variation in 

party preference, and the fraction of registered voters favoring 

Democrats is substantially lower. 

7. Virtually the same picture emerges when one 

includes in Chart 1 just the six counties through which District 

Twelve runs; and the picture is again much the same when one 

includes just the nine counties touched by the Twelfth District.* 

This collection of charts is the basis for my conclusion that 

there is a substantial correlation between the black 

representation within a precinct and the proportion of its 

residents who favor the Democratic Party. 

  

> In calculating each of these four party affiliation percentages, I 

included only people who were identified with one of the two major parties. 
Hence, a precinct that by one of these measures is “42% Democratic,” it is 

in the same sense “58% Republican.” 

4 I have created analogous charts using the other measures of racial 

composition and party affiliation defined in paragraph 5, and they too do 
not differ materially fram Chart 1 

  

 



  
161a 

Analysis: Correlation of Boundary with Race and Political 
Party 

8. The basic geographic unit used by the legislature in 

constructing districts is the precinct. (There are some instances 

in which county boundaries are used, but even these are al 

precinct boundaries.) To examine the correlation of w» 

Twelfth District boundary with the race of people living along 

its path, I identified each of the precincts that touch the 

boundary, and divided the boundary into segments each of 

which separates one precinct inside the District from the one 

just outside. There are 234 such segments, each of which 

reflects a decision made by the legislature about the path taken 

by the Twelfth District border.’ For each segment, I then 

determined whether the representation of blacks is greater in 

the inside precinct than it is in the outside precinct, using each 

of the three measures 5a, 5b and 5c. 

9. If, for each segment, the representation of blacks 

were greater in the inside precinct than the outside precin 

then the correlation between the path taken by the border and 

the racial makeup of the precincts around which it travels 

would be perfect. On the other hand, were only half of the 

segments of this type, there would be no correlation at all 

between the path taken by the border and the racial composition 

  

* Among the border precincts, three have no registered voters. 

These precincts touch five boundary segments, which are necessarily 
excluded from correlation calculations based on measures Se thranoh So  



  

162a 

of the precincts it separates.® The actual results fall about 

halfway between these extremes, as follows: 

Black Population (5a) 79.1% 

Black Voting Age Population (5b) 79.9% 

Black Registered Voters (5c) 79.5% 

10. It is evident from these figures that there is some 

positive correlation between the path taken by the border of the 

Twelfth District and the racial composition of the local 

residents. It is also clear that the correlation is not perfect. 

11. Similarly, I noted for each of the 234 segments 

constituting the border of the Twelfth District whether the 

representation of Democrats was greater in the inside precinct 

than in the outside precinct. If 100% of the segments had this 

property, the border would correlate perfectly with party 

preference, while if only half had the property, there would be 

no correlation at all. The actual results, for each of the four 

party preference measures, are midway between these 

extremes, as follows: 

1988 Court of Appeals Election (5d) 80.8% 

1988 Lt Governor Election (5¢) 78.6% 

1990 Helms - Gantt Election (51) 80.8% 

Registered Voters (5g) 84.3% 

12. Evidently, there is some positive correlation between 

the path taken by the border of the Twelfth District and the 

party preferences of the local residents, though the correlation 

is not perfect. 

  

¢  Ifnone (0%) of the segments had this property, there would once 

again be perfect correlation between the boundary line and the racial 

makeup along its path, but in the sense that the boundary tends to exclude 
hlanke fram tha Twalfth Dictrirt 

    

  

 



163a 

13. Comparing the numerical results from paragraphs 9 

and 11 above, it is apparent that there is at least as much 

correlation between the border of the Twelfth District and the 

party preferences of the local residents as there is between the 

border and the racial composition of those residents. That is, 

the statistical evidence supporting party affiliation as 

important determinant of the boundary is at least as strong, Fi 

marginally stronger, than the statistical evidence supporting 

race as an important determinant of the boundary of the 

Twelfth District.   
Analysis: Divergent Boundary Segments 

14. As might be expected from the correlation 

(paragraphs 6 and 7 above) between party affiliation and racial 

composition within precincts, there are many District Twelve 

border segments in which not only is the representation of 

blacks higher in the inside precinct than in the outside, so too 

is the representation of people favoring the Democratic P 

Such segments (which I call “convergent”) support equally the 

proposition that 

a. the motivationfor the District Twelve boundary 

was at least in part to maximize black representation within the 

District (the “Race Hypothesis”), 

  

and the proposition that 

b. the motivation was at least in part the 

maximization of Democratic Party affiliation (the “Political 

Hypothesis”).  



  

164a 

Clearly, convergent segments do not help us determine which 

of these two propositions is more likely. 

15. There is a second type of convergent segment, 

namely a border segment for which the representation of blacks 

is greater in the outside precinct than in the inside and for 

which the representation of Democrats is also greater outside 

than inside. For the same reason noted above, this type of 

convergent segment also tells us nothing about which of the 

two aforementioned propositions is the more likely. 

16. Only the boundary segments which are divergent, 

i.e., those for which 

a. the representation of blacks on the inside is 

greater than that on the outside and for which the representation 

of Democrats is greater on the outside than on the inside 

(“Type R” boundary segments), 

or, alternatively, for which 

b. the representation of blacks on the outside is 

greater and the representation of Democrats on the inside is 

greater (“Type P” boundary segments), 

can indicate which of the above two propositions is more 

likely. 

17. Evidently, a Type R divergent boundary segment 

favors the Race Hypothesis over the Political Hypothesis, while 

a Type P segment favors the Political Hypothesis over the Race 

Hypothesis. 

18. Depending on the measures used to determine racial 

representation and Democratic party preference, a given 

    

  

  

 



165a 

boundary segment may or may not be divergent. I have 

examined all possible combinations of the three racial measures 

(5a, 5b and 5c) and the four party preference measures (5d, Se, 

5f and 5g), resulting in twelve different ways to determine 

whether a boundary segment is divergent. 

For example, using the two measures (5c and 5g) 

based on registered voters, there are 41 divergent x 

boundary segments. Of these, 26 are of Type P, 

namely ones for which the representation of blacks 

is greater on the outside than on the inside, yet the 

representation of Democrats is greater on the inside 

than on the outside. The remaining 15 divergent 

segments are of Type R: the representation of blacks 

is greater on the inside than on the outside, yet the 

  
representation of Democrats is greater on the 

outside. Evidently, the balance here tips in favor of 

the Political Hypothesis by a score of 26 divergent 

segments to 15: it is more likely that of the two 

propositions, party affiliation was the driving force Rl 

rather than race. 

19. Of the total of twelve such analyses, 

a. sevenresultin a pattern of divergent boundary 

segments favoring the Political Hypothesis over the Race 

Hypothesis, in the sense just described, 

b. three result in a pattern favoring the Race 

Hypothesis over the Political Hypothesis, and 

c. two resultin a pattern equally strong in support 

of both hypotheses.  



  

166a 

It is clear from these analyses that the statistical support for the 

Political Hypothesis is at least as strong as that for the Race 

Hypothesis, and, indeed, somewhat stronger. 

20. As indicated above, some boundary segments are 

divergent when judged by one pair of measures of race and 

party preference, but not divergent when judged by another. 

There are, however, ten boundary segments that are divergent 

by every one of the twelve combinations of race and party 

affiliation measures. Of these ten unequivocally divergent 

boundary segments, 

a. six support the Political Hypothesis, while 

b. four support the Race Hypothesis. 

Again, the statistical support for the Political Hypothesis is at 

least as strong as that for the Race Hypothesis, and indeed, 

slightly stronger. 

21. Finally, the representation of blacks in the Twelfth 

District by each of the three measures used herein is: 

Black Population (5a) 47% 

Black Voting Age Population (5b) 43% 

Black Registered Voters (5¢) 46% 

By none of these measures do blacks constitute a majority of 

the people in the Twelfth District. Similarly, the representation 

of Democrats in the Twelfth District by each of the four 

measures used herein is: 

1988 Court of Appeals Election (5d) 62% 

1988 Lt Governor Election (5¢) 62% 

1990 Helms - Gantt Election (51) 66% 

Registered Voters (5g) 75% 

By every one of these measures, Democrats constitute a. 

majority of the people in the Twelfth District. These figures 

  

 



167a 

support the proposition that creation of a Democratic majority 
in District Twelve was a more important consideration in its 
construction than was the creation of a black majority. 

Further the Affiant Saith Naught.   
/s/ David W. Peterson, PhD » 

Subscribed and sworn to before me 

this 27th day of February, 1998. 

/s/ Peter R. Shalak 

Notary Public 

My Commission Expires: 1-16-2002 

 



    
168a 

  

  
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169a 

SECOND AFFIDAVITOF DAVID W. PETERSON, PHD (WITHOUT 

TABLE AND CHARTS) (EXHIBITS 20) 

[Caption Omitted in Printing] 

SECOND AFFIDAVIT OF DAVID W. PETERSON, PHD 

DAVID W. PETERSON, PHD, being duly sworn, deposes s 

declares the following: 

Identity 

1. As indicated in my first affidavit, I am president of 

PRI Associates, Incorporated, a company whose chief activity 

is providing statistical litigation support. 1 am also a retired 

statistics professor. Further detail about my qualificationsis set 

forth in my first affidavit, and in the resume attached to this 

affidavit. 

Assignment Ww 

2. I am retained in this matter by the defendant to 

respond to and comment on several issues raised by plaintiffs 

and their experts. In particular, these issues are 

a. Whether the conclusions reached by Dr. Ronald 

E. Weber in his declaration follow logically 

from his analysis; 

b. How the precincts that plaintiffs suggest could 

or should have been included in the Twelfth 

District compare with those that in fact were  



  

170a 

included with respect to the political 

preferences of their inhabitants; and 

c. How the percentage’ of people registered as 

Democrats in a precinct tends to differ from 

the percentages of people who have voted for 

Democratic candidates. 

Conclusions 

3. For reasons set forth below, it is my opinion that 

a. Dr. Weber’s conclusions (i) that “race was the 

predominant factor” in the construction of 

North Carolina 1997 Senate Plan A, and (ii) 

that “race-neutral traditional districting 

principles” were subordinated “to racial 

considerations” do not follow from his 

analysis; 

b. The precincts included in the Twelfth District 

generally had a greater percentage of 

Democratic voters than those which plaintiffs 

suggest should or could have been included 

instead; and 

  

! All of the percentages alluded to in this report are based, 

as is customary throughout this case, on voters who are either Republican 

or Democratic; people who are neither are excluded from the calculation. 
As a result, if, for example, 35% of a precinct’s voters are considered 

Republican, then necessarily 100% - 35% = 65% are considered 
| 5 PEORSESESY §. 

    

  

  

  

 



  

  

  

171a 

c. The fraction of people in a precinct who are 

registered Democrats generally exceeds the 

percentage of people in that precinct who 

vote for Democratic candidates. 

Underlying Data 

4. In reaching the above conclusions, I rely on ® 5 

Weber’s March 1998 Declaration in this matter, the Affidavit 

of Martin B. McGee (especially Exhibits A - I), Plaintiffs’ 

Brief (especially pp. 19 - 20), this Court’s April 14, 1998 

Memorandum Opinion, and the same computerized data base 

on which my first affidavit is based. 

Analysis: Dr. Weber’s Declaration 

5. Dr. Weber’s pattern of reasoning is as follows: 

Since 

A. within the vicinity of District Twelve, there 2 

correlation between the racial compositiono 

people living in a precinct and the inclusion 

of that precinct within the district boundary, 

it must be that 

B. racial considerationsdictated whether a precinct 

was included in the District. 

6. This pattern is illogical, and a fine example of the 

caution urged in every well-taught elementary statistics course: 

correlation does not imply causation. One could use Dr.  



  

172a 

Weber’s line of reasoning to establish that, for example, the 

widespread eating of turkey causes Thanksgiving to occur. 

7. Dr. Weber makes no allowance in his analysis for 

the possibility that political affiliation, a factor defendant 

claims as one of its salient considerations, explains the 

construction of District Twelve as well or better than does the 

racial pattern of nearby residents. Indeed, one could replicate 

Dr. Weber’s analysis substituting “political preference” for 

“racial composition” and reach the no less compelling 

conclusion that political preference was the predominant factor 

in the drawing of District Twelve, and a factor to which other 

“districting principles” were subordinate. 

Analysis: Nearby Excluded Precincts Containing 

Democrats 

8. In Exhibits A - I of the McGee affidavit, plaintiffs 

identify nine precincts outside of (but bordering on) District 

Twelve, a substantial proportion of whose residents are 

Democrats. Plaintiffs cite these precincts as evidence that 

“makes clear that race — not politics — was the predominant 

factor in the creation of this district.” (Pl. Br. at 19-20.) The 

implication apparently is that had defendant truly chosen the 

border of District Twelve based on political affiliation rather 

than race, it would surely have included rather than excluded 

these precincts from District Twelve. 

9. We have identified all fourteen of the precincts 

within District Twelve which touch the above nine precincts, 

and compared the political composition of the inside precinct 

    

  

 



  

  

173a 

to that of its neighbor outside. In all but six of the 56 

comparisons, the precinct inside is “more Democratic” than its 

outside neighbor. Hence, in the great majority of instances, the 

boundary of the 12th District serves to fence in Democrats 

rather than to fence them out. 

10. The identities of the nine precincts and of 

District Twelve precinctsthey touch are shown in Table Aff2¥ 

Successive columns show the amount by which the percentage 

of Democrats in the inside precinct exceeds the percentage of 

Democrats in the adjacent precinct outside, by each of four 

measures. The first such column is based on the percentage of 

registered voters in each precinct who are Democrats, the 

second is based on the percentage of the precinct’s voters who 

voted Democratic in the 1988 Lieutenant Governor election. 

The third and fourth columns are based analogously on election 

results from the 1988 Court of Appeals election and the 1990 

Senatorial election, respectively. As is apparent, the 

W 

Analysis: Relationship of Voter Registration to Voting 

Pattern 

representation of Democrats is higher inside District Twe 

than outside in 50 of the 56 comparisons. 
   

11. To examine the relationship of the percentage of a 

precinct’s registered voters who declare themselves Democrats 

to the fraction of that precinct’s voters who vote for Democratic 

candidates, I created a scatter plot for each of three elections. 

In the first, I plotted for each precinct in the state the 

percentage of its registered voters who are declared Democrats 

against the percentage of its voters who voted for the  



  

174a 

Democratic candidate in the 1988 Court of Appeals election. 

This scatter plot is attached as Chart 1. Since the vast majority 

of points in this plot lie above the forty-five degree line 

radiating from the origin, it is apparent that in nearly all 

precincts, the proportion of Democrats according to registration 

exceeds, and in many instances far exceeds, the proportion of 

people who voted for the Democratic candidate. 

12. I repeated this exercise using data from the 1988 

Lieutenant Governor election, and obtained the results 

displayed in Chart 2. Once again, most points lie above the 

forty-five degree line, and once again it is apparent that the 

proportion of Democrats according to registration generally 

exceeds the proportion of people who voted for the Democratic 

candidate. 

13. Chart 3 displays the results that obtain when the 

1990 Helms - Gantt US Senate election are used. Again, it is 

clear that the proportion of Democrats according to registration 

within a precinct generally exceeds the proportion of people 

who voted for the Democratic candidate. 

14. Charts 4, 5 and 6 show the results analogous to 

Charts 1, 2 and 3 when attention is limited just to the precincts 

in the Twelfth District. Again, the result is that the proportion 

of Democrats according to registration within a precinct 

generally exceeds the proportion of people who voted for the 

Democratic candidate. 

15. My rate of compensation in this matter is $335 per 

hour. The cases in which I have testified at trial in the last four 

years are listed in an attachment hereto, as are the cases in 

which I have testified at deposition. My publications over the 

last ten years are listed in the attached resume. 

  

 



  

  

175a 

Further the Affiant saith naught. 

/s/ David W. Peterson, PhD 

I, Alissa K. Chapman, a Notary Public of said State 

hereby certify that David W. Peterson personally oe, 
before me this day and acknowledged the due execution of the 

   

foregoing instrument. 

Witness my hand and notarial seal, this the 8th day of 
September, 1999. 

/s/ Alissa K. Chapman 7/11/2001 
Notary Public My Commission Expires 

 



  

    
176a 

  

  

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177a 

DAVID W. PETERSON, PHD, TRIAL TESTIMONY 

(SELECTED PORTIONS) 

[*483] Q. Would you please identify yourself? 

A. Yes. My name is David West Peterson. 

Q. And could you just give a very brief summary of your 

[*484] qualifications and background? 

A. Yes. I'm President of PRI associates, a statist) 

consulting and software development firm in Durham, North 

Carolina; recently retired as a faculty member from Duke more 

than 20 years. I taught first in the business school, later on in 

the law school and later yet in the statistics department. My 

area of specialty is statistics. I'm coauthor of a book titled Use 

of Statistics in Equal Employment Opportunity Litigation and 

co-author of a law review article on the subject of judging 

science and extended review of a book published by the Federal 

Judiciary Center. It was published in Washington in the use of 

scientific evidence in court. 

I'm an occasional speaker at seminars for attorneys 

sponsored by the American Bar Association and P 

organizations. I'm a member of the faculty of a seminar put'on 

annually at Duke University on the subject of judging science. 

The clientele there are not practicing attorneys, but judges. 

Q. Could you elaborate what you are teaching the judges? 

A. Basically, what we're trying to do is teach them the 

difference between good science and what might be called 

nonscience. 

Q. What portion of that program were you responsible for? 

[¥485] A. I'm responsible for the initial portion where we talk 

about what ideal scientific study is and compare it with a study 

which is far from ideal and point out what the differences are  



  

178a 

and why one is probative and the other is not. 

Q. And what kind of judges attend this seminar? 

A. Mostly state level judges, but we draw judges from all 

across the country. We draw an occasional federal district 

judge and an occasional federal circuit judge. Chief Justice 

Henry Frey of the North Carolina Supreme Court is one of our 

recent graduates and we recently took the show on the road, so 

to speak, down to Florida and put on the program there for the 

State Appellate Court judges, including several from the State 

Supreme Court. 

Q. And attached to your second affidavit, which is Exhibit 

20, is there a full resume and list of your articles and 

publications and background? 

A. Yes : 

Q. All right. Dr. Peterson, briefly, just what was your 

assignment? 

A. My assignment in this case was to see to what extent 

there was statistical evidence in support of the proposition that 

race was the predominate factor in the drawing of the boundary 

of the 12th District. 

Q. What was your analysis? 

[*486] A. It was based on the following line of thought. If the 

boundary of the 12th District were drawn with the purpose of 

collecting blacks inside of it, one would expect as one travels 

along the boundary to find consistently that blacks are more 

heavily represented inside the boundary than outside. In 

contrast, if the boundary were drawn with the purpose of 

collecting Democrats into the 12th District, one would expect 

as one travels along the boundary to find consistently that 

Democrats are more heavily represented inside the boundary 

  

 



179a 

than outside. 

The situation can be likened to that of a contour line on 

a contour map. A contour line is drawn for the purpose of 

providing one with a level path. As one walks along a contour 

line, one has neither to climb nor descend consistently on one 

side of the line. The land is higher than it is on the other sid 

We might suppose that we’re given a boundary down Ce 

the map such as the boundary of the 12th District and ask to 

determine empirically whether it's a contour line. One test of 

that would be to travel along the line and see whether 

consistently the land is higher on one side of the line than it is 

on the other. 

And if it turns out that that turns out to be the case, that's 

evidence in support of the proposition that [*487] the purpose 

for drawing the line was to make it a contour line. Likewise, if 

the purpose for drawing the line was to collect blacks into the 

12th District, one would expect that walking along the line one 

would see a consistent pattern in which blacks were more 

heavily represente inside than outside. Likewise, if the rly 

for drawing the line was to collect Democrats within the 12t 

District, traverse of the line should reveal that most of the time 

Democrats are represented more heavily inside than out. 

What I found in my study traversing the boundary of the 

12th District is that most of the time blacks are represented 

more heavily inside the line than out, about 80 percent of the 

time. I also found that Democrats are represented more heavily 

inside than out, also about 80 percent of the time. And so the 

evidence is equally supportive of both hypothesis, that is to say 

the two are statistically indistinguishable. In particular, neither 

one dominates the other.  



  

180a 

It is true that the party affiliation association is slightly 

stronger than the racial affiliation association, but it is not 

significantly, that is to say statistically significantly stronger. 

[ can not conclude that the party -- that the evidence in favor of 

the party theory is statistically significantly stronger than it is 

in favor [*488] of the race theory. 

Q. Would the converse hold for the race theory? 

A. That's right. Neither race nor party dominates 

statistically. 

Q. Okay. Could you briefly tell the Court, in very summary 

form, perhaps using some of your exhibits, what your analyses 

were? 

A. Sure. Ihave described what I characterize as my main 

study and maybe the exhibit that best exemplifies the 

conclusions not only of that study but also of a couple of other 

studies that I did is an Exhibit numbered 428, which consists of 

a collection of pie charts. 
Q. If you will allow the Judges a moment. 

A. Sure. And I point particularly to Chart Number 8 in that 

collection. 

Q. The full details of this one are in your first, second and 

third affidavit? | 

A. That's right, primarily the first. The chart that we're 

looking for is the one that looks like this, Chart Number 8. 

Q. Exhibit 428? 

A. In Exhibit428. And this is a collection of 12 pie charts 

that summarize 12 variations on the second of three studies that 

[ did. But the results that were apparent here typify the results 

of all of the studies that I have [*489] done. 

In interpreting a pie chart here, the more heavily the 

  

 



  

  

181a 

darker portion of each pie represents the strength of evidence 

in support of the race hypothesis, the hypothesis that race was 

an important factor in the drawing of the predominate boundary 

of the 12th District. The light gray areas indicates the strength 

of statistical report for party affiliation. That party affiliation 

was an important factor in drawing the boundary. " 

In looking across these charts, there's a pretty even split: 

The support for the one hypothesis, about as strong as the 

support for the other that's in all of my studies. If you get in 

and count closely, you will see that support is slightly stronger 

in favor of the party hypothesis overall than it is for the race 

hypothesis, but not statistically significantly stronger. 

Q. And what did you -- what did you determine -- excuse 

me. You did three studies? 

A. Yes, 

Q. What was the result of the first study? 

A. The result of the first study was that about 80 percent of 

the time going around the boundary, blacks are more heavil 

represented inside than out and about the same can be said 

Democrats. 

Q. And was that using convergent segments? 

[*490] A. That was using all segments, 100 percent of the 

segments, all of the segments for which we had data. 

Q. Did you do additional studies? 

A. Yes, I did one study focused on what I call divergent 

segments in the Exhibit that we were just looking at. There's 

reference in the title to divergent segments, so this is a 

summary of the second study based on divergent second 

segments. 

Q. Did you do a third study?  



  

182a 

A. Did a third study based on segments unequivocally based 

on divergent, that is by all measures they were divergent. 

Q. Did you determine the results of those studies? 

A. The same thing. The balance is about equal between the 

two. Summary of that one is shown in the next exhibit -- or 

Chart 9 of Exhibit 428. 

[*494] Q. Okay. Now, I believe you have looked at Dr. 

Weber's statistical tables and you yourselfran a study based on 

his Table Two in his Exhibit 47? 

A. Yes, that's true. 

Q. Okay. Could you tell the Court what you did and 

perhaps show them your exhibit? 

[*495] A. Sure. 

Q. I believe it's Exhibit 4337? 

A. Yes, thank you. I don'thave a copy of Dr. Weber's Table 

Two here, but referring to Exhibit 433, I recall that Dr. Weber's 

Table Two identified all of the counties that were split in the 

formation of not only the 12th District but other districts as 

well, including the First. And the point that he makes in 

looking at his Table Two is that consistently the portion of the 

county that's included in the 12th District in a split contains 

blacks to a greater extent than the county -- than the portions of 

the county not included in the 12th District. And he makes a 

similar finding with respect to the First District. What I did 

was to ask essentially the same question, but with respect to 

party affiliation rather than racial identity. 

What I find is that consistently the portion of split 

  

 



  

183a 

counties that are included in the 12th District contain 

Democrats to a greater extent than the portions of the counties 

that were not included in the 12th District, and that's what's 

reflected on the first page of Exhibit 433. So if I were to follow 

Dr. Weber's pattern of analysis, I would conclude, based on the 

first page of Exhibit 433, that party affiliation must have bee 

the predominate factor in the drawing of the boundary of th 

12th [*496] District. 

Q. What about page two? 

A. Page two is an analogous portion of Dr. Weber's Table 

Two, also based on party affiliation but this time pertaining to 

the 1st District. And once again, when you split by party 

affiliation rather than by race, you find that by and large it's the 

portions of the counties in which Democrats are more heavily 

represented that are included in the 1st District than the 

portions of the counties that are excluded. 

There's an exception that has to be made for Beaufort, 

because Beaufort is a county like Davie County, a county in 

which precinct data are not available and the voter informati 

for Beaufort County, as represented in the state, is really 

meaningless. You can see there's tiny differences in the 

portions included and excluded. Those are of no material 

consequence. We should probably scratch Beaufort off of this 

Exhibit. 

Having done that, if I follow Dr. Weber's pattern and 

thought I would have to conclude from this part of Table Two 

that party affiliation was the predominate factors in the drawing 

of the boundaries in the 1st District. 

Q. Did you do similar analysis with respect to Table Four? 

A. Yes, Idid.  



  

184a 

[*497] Q. Which believe is splitting municipalitiesin places? 

A. Yes. The results of that are shown in Exhibit 434. Once 

again, I split -- noted what the party affiliations are of each of 

the split pieces and noted that in virtually every sense it's the 

more heavily Democratic portion of the split geographic unit 

included in the 12th District. 

So once again, following Dr. Weber's pattern of thought, 

I would be forced to the conclusion that party affiliation must 

have been the predominate factor in the drawing of the 

boundaries of the 12th District. And on the second page of 

Exhibit 434 is the analogous analysis for the 1st District. Once 

again, party affiliation is shown here. 

Again, consistently it's the portions of the municipalities 

with the higher representations of Democrats included in the 

1st District, if I follow Dr. Weber. Again, I would have to 

conclude that party affiliation was the factor predominate in the 

drawing of the First District. 

Q. Dr. Peterson, Dr. Weber testified yesterday. He looked 

at your chart and he compared it and said, well, you notice that 

if you look at my tables that the gap in the racial percentage is 

greater than the gap in your [*498] political percentage? 

A... Yes, 

Q. Could you comment on that? 

A. Oh, sure. Those percentages are measured on two 

completely different scales and the problem is essentially this: 

most of the precincts in North Carolina and in the vicinity of 

the 12th District contain Democrats in the percentages of 40 to 

60 percent. Relatively few precincts contain blacks in the 

percentage of 40 to 60 percent. Most precincts are either 

heavily black or heavily white. Most precincts are within a 

    

  

 



185a   
60/40 mix of being Republican and Democrat. 

As you move around North Carolina, you will find much 
wider representationsin the racial mix than you will find in the 
political mix of the population. So those percentages are 
simply measured on two different scales. One can't compare 

directly a difference between racial percentages and 
difference between party affiliation percentages. They are N 

just comparable. 

x % % 

[*S00] A. There are three things wrong with Dr. Weber's 
Table 6. The first is that an underlying predicate is that within 
a county all of the precincts are freely interchangeable in the 
following sense. That any collection of the precincts in that 
county could as well be included in the 12th District as any 
other regardless of the geographic location of those precincts. 
That's a fault that underlies not only as Table Six, but as Table 
1, Table 2, Table 3, Table 4 and Table 5. Of course, that's 4) 

unrealistic supposition. 

The second thing that's wrong with Dr. Weber's Table 6, 
is that it's incomplete. It applies only to precincts in which 
there are a majority of Democrats. And in my Exhibit 435, I 
have completed Dr. Weber's table to show additionally what 
the situation is with respect to all of the other precincts. 
Q. If I might stop you right here, Dr. Peterson. I think for 

the Court to understand what you mean by complete, that they 

need to turn to Exhibit 47. 

A. Okay. 

Q. Table 6. I apologize, that's in another notebook.  



  

186a 

Now, could you explain. Before when you say the table 

is not complete, could you -- and do you need a copy of 

Table 67 : 

[*S01] A. I have it in mind, but I don't have a copy in front of 

me. 

Ms. Smiley: Excuse me while I approach the witness. 

Q. Now, what do you mean by the table is "not complete"? 

A. If we look at the first page, page 56, we see the column 

headings indicate percent Democratic registration in the range 

of 50 to 59.9 percent and then 60 to 69.9 percent and greater 

than 70 percent. But there's no play place in the table for 

precincts in which the percent Democratic registration is less 

than 50 percent. So what I have done in Exhibit 435 is to 

provide the information on the other precincts. 

Q. So you have completed the table? 

A. Sol completed the table, yes. 

Q. Could you tell the Court what you conclude in this table? 

A. Yes. This is the third point that's troubling about the 

Table 6, and that is when you complete Table 6 and examine it 

closely, what you find is that support is about equal even in 

Table 6 for the party hypothesis and for the racial hypothesis. 

And I can demonstrate that with the use of just a little analysis 

of the first page of Exhibit 435 if the Court would care to see 

it? 

[*506] We tally up the numbers here, see how many R's we 

have, how many P's we've got. You see we have five P's and 

two R's. It's evident that there is more support here for the 

  

 



187a     
party affiliation hypothesis than there is for the race hypothesis. 
What may not be so apparent is those two differences are not 
statistically significant. There were not enough instances of 
comparison to say the party hypothesis dominates the race 
hypothesis. It's clear the race hypothesis does not dominate the 
party affiliation [*507] hypothesis. We could do the s 
thing with the other tables, and what we would find i 
essentially the same result. 

Q. Dr. Peterson, could you give us, after your various 
studies and your reviews of Dr. Weber's studies, could you give 
us your bottom line conclusion? 

A. Sure. The statistical evidence is almost vocal [sic] in its 
support of the race hypothesis and party affiliation hypothesis. 
The two are statistically indistinguishable, but of the two 
hypotheses, the statistical evidence supports the party 
affiliation hypothesis marginally better than it supports the race 
hypothesis. 

 



  

188a 

[This page intentionally left blank.] 

  

    
   



L
e
e
 

s
a
 

  

  

189a 

PERCENT DEMOCRAT IN SPLIT COUNTIES BY COUNTY 

Percent Democrat in Split Counties 

by County for 1997 Congressional Districting Plan 

COUNTIES SPLIT BY 12TH DISTRICT 

Analagous to Dr. Weber’s Table 2 
  

° 
  

  

  

  

  

  

  

  

  

  

    
        

County |Dis| % Dem |[% Dem | % Dem | % Dem 

Reg 1988 1988 1990 

Voters |Lt Gov COA US Sen 

Davidson [12 | 55.57* |40.90* | 40.29* | 36.89* 

Davidson | 6 51.94 39.05 38.07 30.41 

Forsyth 12 | 88.08* | 78.65* | 81.31* | 82.76* 

Forsyth 5 55.88 42.62 41.22 40.19 

Guilford | 12 | 78.69* | 68.72* | 67.39% | 68.84* 

Guilford 6 56.59 45.67 39.38 43.27 

Iredell 12 | 65.83* | 45.71* | 44.90* | 49.05* 

Iredell 10 | 59.67 37.03 39.47 36.37 

Mecklenburg| 12 | 77.73* | 65.66* | 65.25* | 74.74* 

Mecklenburg| 9 48.29 39.06 31.07 48.17 

Rowan 12 | 68.09* | 57.34% | 56.78* | 54.00* 

Rowan 6 50.68 38.73 35.99 32.25       “ 
  

 



  

COUNTIES SPLIT BY 1ST DISTRICT 

190a 

Percent Democrat in Split Counties 

by County for 1997 Congressional Districting Plan 

Analagous to Dr. Weber’s Table 2 
  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

    

County |Dis| % Dem | % Dem | % Dem | % Dem 

Reg 1988 1988 | 1990 
Voters Lt Gov COA | US Sen 

Beaufort 1 76.78* 48.48* 54.61 38.80 

Beaufort 3 76.62 48.44 54.71* | 39.01% 

Craven 1 81.40* 57.38* | 63.47% | 56.67* 

Craven | 3 | 64.66 41.68 | 45.82 | 40.90 
Granville | 1 | 92.28* 64.44* | 73.77* | 54.09* 

Granville | 2 82.61 50.35 59.12 42.35 

Jones 1 91.99* 62.38* | 67.85* | 49.93* 

Jones 3 84.91 43.73 54.35 30.10 

Lenoir 1 86.89% 65.24* | 72.56% | 57.95% 

Lenoir 3 74.39 35.12 46.34 20.06 

Person 1 87.64% 52.52% | 60.73* | 40.82* 

Person 4 82.53 45.06 | 51.42 30.09 

Pitt 1 | 83.13% 59.25% | 69.00* | 56.30% 

Pitt 3 71.23 46.98 59.15 46.10 

Washington | 1 90.46 63.59* | 69.85% | 48.42% 

Washington | 3 | 92.22* | 56.59 61.75 44.84 

Wayne 1 82.61* 57.32* | 62.31* | 50.81% 

Wayne 3 71.79 38.13 42.56 28.06 

Wilson 1 83.72* 59.65% | 65.85* | 55.67% 

Wilson | 2 | 72.96 | 39.05 | 47.73 | 28.51           
  

    

  

  

   



  
191a 

Percent Democrat in Split Municipalities and Census 
Designated Places by City or Town for 1997 Plan 

PLACES SPLIT BY THE 12TH DISTRICT 

Analagous to Dr. Weber’s Table 4 
  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

    

% Dem | % Dem | % Dem | % Dem 

City/Town |Dis| Reg 1988 1988 1990 

Voters | Lt Gov | COA | ys si) 

Charlotte 12 | 80.91% | 69.52* | 69.19% | 78.44* 

Charlotte 91 48.39 | 39.78 | 31.49 50.41 

Cornelius 12] 63.07% | 43.45% | 42.00% | 48.73* 

Cornelius 9 | 48.00 | 34.81 26.72 42.75 

Davidson 12] 69.54 | 55.58 | 48.66 67.61 

Davidson 10 

Greensboro 12 | 81.79* | 73.00* | 72.58* | 73.55% 

Greensboro 6 | 59.63 | 51.79 | 43.05 53.49 

High Point 12 | 76.65* | 63.31* | 63.41* | 63.35% 

High Point S: 1-33.33 1:33.33 50.00 33.33 

High Point 6 | 50.26 | 38.58 | 34.14 36.22 

Lexington 12] 76.93* | 60.32 | 60.69* | 62.0 

Lexington 6 | 71.88 | 60.36* | 60.56 » 9 

Mooresville | 12] 62.69 | 43.69 | 44.14 44.36 

Mooresville | 10 

Salisbury 12 | 67.18% | 58.75% | 60.87* | 50.28* 

Salisbury 6 | 59.55 | 46.98 | 46.58 44.86 

Spencer 12 | 75.40* | 58.85% | 57.85* | 57.07* 

Spencer 6 | 60.00 | 50.00 | 50.00 50.00 

Statesville 12 | 80.59* | 64.26% | 53.64* | 69.80* 

Statesville 10 63.61 | 40.28 | 42.80 42.05 

Thomasville | 12 | 68.00% | 58.03* | 58.00* | 56.95* 

Thomasville | 6 | 54.92 | 41.46 | 39.63 30.82             
     



  

192a 

  

Troutman 64.00* 42.11% 44.44* 40.00* 
  

Troutman 10 61.79 34.84 37.32 38.16 
  

WinstonSalem 12 90.41* 82.22% 85.21% 86.33* 
    WinstonSalem       61.02 49.22   46.87   49.40 
  

    

  

  
  

 



193a 

Percent Democrat in Split Muncipalities and Census 

Designated Places by City or Town for 1997 Plan 

PLACES SPLIT BY 1ST DISTRICT 

Analagous to Dr. Weber’s Table 4 
  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

              

% Dem | % Dem | % Dem | % Dem 

City/Town |Dis| Reg 1988 1988 1994 

Voters | Lt Gov| COA | USS 

Ayden 1 | 82.03% |53.89* | 65.07 45.97 

Ayden 3 | 80.26 51.85 | 66.67* | 46.00* 

Battleboro 1 {90.23% | 72.86* | 80.60* | 69.14* 

Battleboro 2 | 82.28 59.18 | 69.77 56.25 

Fremont 1 | 89.24% | 59.66* | 66.24* | 52.24% 

Fremont 3172.73 23.57 133.33 13.33 

Goldsboro 1 | 84.45% | 61.83* | 66.34* | 56.77* 

Goldsboro 3 | 65.99 33.78 | 36.94 24.06 

Greenville 1 | 83.70% | 68.73* | 76.29* | 74.61* 

Greenville 3 |65.20 46.07 | 56.25 52.43 

Kinston 1 | 91.08% | 78.46* | 83.37* | 75.0 

Kinston 3 173.82 36.60 | 46.75 25.3 

New Bern 1 | 80.85* |59.17* | 65.18* | 58.23* 

New Bern 3 165.27 46.53 | 52.78 45.95 

RockyMount | 1 |93.33* | 80.54* | 85.12* | 85.17* 

RockyMount | 2 | 66.45 37.82 [44.38 35.68 

Sharpsburg 1 | 77.60* | 48.51* | 55.56* | 39.25* 

Sharpsburg 2 161.28 28.73 | 35.63 17.76 

Trent Woods | 1 | 76.26* | 49.67* | 53.19* | 61.54* 

Trent Woods | 3 | 66.38 38.36 | 47.24 35.04 

Washington 1 | 76.93 48.38 | 54.70 38.60 

3 Washington 
       



  

194a 

  

  

  

      

Whitakers 1 |91.28* |69.91* | 79.81* | 65.41* 

Whitakers 2 | 88.17 66.38 | 70.91 61.98 

Wilson 1 | 86.46% | 67.68* | 72.69* | 67.30% 

Wilson 2 169.48 38.10 | 46.95 28.12           

      

    
 



  

195a 

GERRY COHEN, TRIAL TESTIMONY (SELECTED PORTIONS) 

[*523] Q. Do you recall on or about February 10, 1997, 
writing a memorandum to an e-mail -- I should say to Leslie 

Winner and to Roy Cooper? 

A. Yes. I probably wrote several e-mails to them. Are you 

asking about this one in particular? 

Q. Yes, I'm referring now to what's Exhibit 58. With res) 

to that document, that e-mail, do you recall sending such an 

e-mail on or about February 10, 1997? 

[*524] A. Yes, I do. 

Q. And in that context, in the last sentence or the last two 
lines, there is a reference to the Greensboro black community? 
A. Yes, sir. 

Q. What were you referring to as the "Greensboro black 

community" when you wrote that memorandum? 

A. Well, Senator Cooper had earlier that day or the previous 
day told me to draw a new plan which would eliminate the 
problem in the prior plan that Guilford County was in three 
Congressional Districts, which he said was not acceptatifff) 
And there needed to be no county more than two congressional 
districts in the state. He asked me to make changes in the plan 
to have Guilford only in two congressional districts. My basic 
instruction was to include more of the 12th District -- excuse 

me, more of Guilford County in the 12th District for several 

different factors. 

And the first thing I did was extend all the way up into 

Greensboro including, I think, most of two State House 

Districts and this was actually one sentence at the end of a 

longer memorandum that really talked about the First 
Congressional District. And by mentioning the Greensboro  



  

196a 

black community, I talked about the basic part of a larger group 
in the precincts that I moved in. I [*525] think I moved 27 
precincts in at that time of which the Greensboro black 
community was about 11 of those 27. 
Q. Allright. Now, with respect to Guilford County, was any 
part of Guilford County already in the plan you were 
developing? 

A. Yes. The plan that I was working from at that point had, 
I think, ten or 11 precincts in High Point; the Guilford County 
part of High Point in the 12th District already. 
Q. Do you recall whether those precincts were predominately 
African American? 

A. Ithink that five of the nine or ten in High Point at that time 
were predominately African American in the plan I had been 
working from at that point. I'm not sure of the exact numbers. 
Q. Was that number either decreased or increased at a later 
time? 

A. Ibelieve that when -- the 27 precincts that I moved in that 
it was referring to in this memo, at least one of them was in 
High Point, but it was predominately white. 
Q. Do you recall approximately the number of African 
Americans that were in Guilford County at the time of the plan 
immediately preceding the one that you drew and referred to in 
that memorandum? 

A. Tdon't recall that number. 
[*526] Q. All right. I'm going to show you this map, which 
purports to indicate racial concentrations in the 1997 Plan? 
A. Okay. 

Q. I'm going to ask you whether, with respect to Greensboro, 
whether or not the area that is indicated with red, red checks 

  

 



197a      there, is the Greensboro black community includes the 
Greensboro black community that you were referring to in your 
memorandum? 

A. Your key there shows those red precincts, shows those 
being 40 percent or higher black in terms of total population, so 
I think that certainly is the same sort of -- the red coloring is th 
same shorthand that I used at the time I talked about the in 
community in Greensboro. 

Q. Do you recall how many African Americans in Guilford 
County were included in the plan that you submitted at that 
time? 

A. Tknow the number that I added between the previous plan, 
which was called '97 Cooper 2.0 and the resulting Cooper 3.0, 
that I mentioned in this memo, I recall the total number of 
people moved and the racial composition, but I don't recall 
what had been previously and I don't remember the total. 
Q. What was the percentage of those you moved as far as 
[*527] race was concerned? ! 
A. I think the total number actually moved, I went back andl) 
looked at that after the deposition, was about 108 ,000 of which 

about 52,000 were black. 

Q. All right. And with respect to the moving the 52,000 
black, were they moved in or moved out -- let me rephrase that. 
You mean a hundred some thousand were moved into the 
district as a result of this plan? 

A. Yes. There were about 102,000 plus population in 
Guilford County moved from the 6th District to the 12th or 
from the 5th District to the 12th, because it had been in three 

different districts at the time. 

  

    



  

198a 

[*530] Q. Just with a view to pointing out in the first two 

lines, you are referring to a change and could you indicate what 

that change was and what the purpose of the change was? 

A. I mention the changes were in Beaufort, Pitt, Craven and 

Jones Counties. Do you want me to read the sentence? 

Q. That will be fine. 

A. By shifting areas in Beaufort, Pitt, Craven and Jones 

County, I was able to boost the minority percentages in the 

First District from 48.1 to 49.25. 

* % % 

[*531] Q. In the next paragraph you use the word "improve" 

on two occasions, I believe. Improving the percentage. What 

do you have in mind there? 

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

could be improved by switching between the First and Third, 

unless I wanted to go to Pasquotank, Perquimons or Camden. 

There since the instructions at that point were to increase the 

percentage of minority in the district, improvement moving 

towards that goal, which means increasing the number. 

Q. So improve is synonymous with increase African 

Americans in this particular numbering? : 

A. Yes, sir. 

Q. Was that based on the premise that you had to have a 

majority black in the First District? 

Ms. Smiley: Objection to foundation. 

Judge Thornburg: I'll let the witness answer to what he 

    

  

 



  
199a 

had in mind. That's what we're trying to get at here. 

A. Could you restate the question? 

Q. Indicate what you had in mind then with respect to [*532] 

achieving a majority black precinct -- majority black district, I 

mean. 

A. The understanding that I received from Senator Cooper 

was that in order for the plan to pass and in order for what 

thought was to perceive approval from the Justice Department 

along with a bunch of other factors, it was going to need to be 

more than 50 percent in terms of total population. So that's 

where we were moving along that track towards. 

Q. So your instructions were to create a district with at least 

50 percent? 

A. I'm not sure right at the point of this memo it was to get it 

to 50, but I know I was told to make it higher at that point. 

Q. It was 49 percent at that point? 

A. Yes, sir. 

%* % * » 

[*538] Q. Let me ask you one question: Mr. Cohen, have you 

had an opportunity to look at your Exhibit with the changes and 

also compare it to Weber's Exhibit 47, Table 5? 

A. Yes, I examined both of those against each other. 

Q. How many precincts were moved when Greensboro was 

added to District 12? 

A. 29. 

[*539] Q. Of those precincts, how many were majority white? 

A. 18. 

Q. One last question, I hope last question: Do you know  



  

200a 

about why the Greensboro precincts were added to District 12, 
this particular move we were talking about? 
A. So as to not have Guilford County divided into three 
districts and so as not to waste Democratic votes in the 6th 
District since that had been designed as a Republican District. 
Instead use them to improve the Democratic vote in the 12th 
District. 

Q. What's the source of your information -- that's your belief 
that that's why they were moved? 
A. Yes. 

Q. And why do you believe that? 
A. Conversations with Senator Cooper. at the time the 
instructions were given. 
Q. So he did not give you an instruction to move the black 
community into District 12? 
A. No, he instructed me to move more Guilford County 
precincts that were predominately Democratic into District 12. 
Q. And for the reasons you just stated? 
A. Yes, ma'am. 

  

 



201a 
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ FIRST SET OF INTERROGATORIES (SELECTED PORTIONS) 

[Caption Omitted in Printing] 

INTERROGATORIES 

12. Identify when, by whom, and under . circumstances lines in the 1997 plan were first proposed or thereafter modified for congressional district boundaries that in the 1997 plan split any of these counties, in the manner the county was ultimately split in the 1997 plan: Washington, Beaufort, Craven, Pitt, Wayne, Lenoir, Jones, Mecklenburg, Iredell, Rowan, Davidson, F orsyth, Person, Granville, Wilson and Guilford. 

OBJECTION: Defendants object to this interrogatory on the grounds it is overbroad and unduly burdensome in that Gerry Cohen and Linwood Jones, the 1997 Plan drafters, worked on about 200 plans from 1993 through 1997, during which time @ the lines in different counties were split for a variety of reasons including, but not limited to, partisan considerations, incumbency protection, compactness considerations, geographic and aesthetic considerations, Population deviation, and Section 2 considerations. Notwithstanding and without waiving these objections, defendants make the following response. 

RESPONSE: Neither Gerry Cohen nor Linwood Jones remembers the precise map that was used to create what eventually became 1997 Congressional Plan A (Cooper’s  



  

202a 

Senate plan) or House 97 Congressional Plan A.1 (McMahan’s 

House plan). Some of the major line changes that can be 

recalled at this time include the following. : 

With regard to the House, the first plan released by the 

House (Plan A.1) and several other plans that followed Plan 

A.1 and that were used in negotiations with the Senate did not 

divide Iredell County. District 12 went through Cabarrus 

instead of Iredell. By the time the House got to House Plan G 

(the one the House redistricting committee introduced as a 

committee bill), Cabarrus was back together and Iredell was 

split. Concerns raised by the Cabarrus delegation about 

dividing their county was one factor in switching back to 

Iredell. Iredell also was part of the core of Representative 

Watt’s then existing district. Forsyth County was not originally 

divided in the House plans in part to reduce the number of 

divided counties and also as a potential bargaining chip with 

the Senate. The House fairly quickly moved to the Senate 

proposal regarding Forsyth because putting Forsyth Democrats 

into District 12 helped ensure District 5 was more Republican. 

In the plan the House Rules Committee prepared in 

1996, Iredell is split between Districts 8 and 10, and District 12 

ran from Charlotte to Fayetteville, with both cities split. 

Guilford, Davidson and Rowan were not divided in that plan, 

and the plan was clearly favorable to Republican interests and 

detrimental to Democratic interests. 

In District 1, House Plan A.1 split Nash, Wilson, Pitt, 

Lenoir and Wayne Counties, and the district stretched nearly all 

the way to the Atlantic Ocean, with only Currituck County 

separating the district from the coast. House Plan B, which was 

the House’s second offer to the Senate, moved Camden County 

  

 



203a 

into District 3, left Chowan, Perquimans, Pasquotank and all of 

Washington in District 1, and left Nash County divided. House 
Plan B. 1, the third proposal to the Senate, made Nash County 
(Senator Cooper’s home county) whole by putting it in District 
2, but still left Camden, Washington, Perquimans and 

Pasquotank in District 1. (These counties were all part » 
Senator Marc Basnight’s State Senate District 1.) House Pla 
C, the fourth offer to the Senate, moved Perquimans, 

Pasquotank and Chowan into District 3, and probably for the 
first time divided Craven and Jones Counties. There were then 
a series of House plans (Plans D through J), where most 
(though not all) of the changes related to Districts 2 and 4. It 
was not until nearly the end of the entire negotiation process 
that Washington County was divided at the Senate’s request. 

This essentially was the end of a slow retreat by the House 
from Senate District 1, so that its boundaries did not overlap 
congressional districts. In addition, Chowan and the other 

  

counties to the east were kept together because of economic 
ties. 

The progression of Districts 1 and 12 from the initial 
House Plan A.1 to the 1997 Plan, moved towards the Senate 

plan, with the movement being quicker in District 12. Looking 
at these negotiations broadly, the House along the way 

obtained some of the things it was most interested in, such as 

placing Representative Jones’ residence in his district, keeping 
Harnett, Johnston, Cleveland and Wilkes Counties whole, 
placing particular precincts in Wake and Sampson Counties in 

District 2 so that the district, though Democratic leaning, would 

still be competitive, and configuring District 9 in a satisfactory 
manner.  



  

204a 

With regard to the Senate, near the end of the process, 

based on a legislator’s request, the southern part of Granville 

County was included in District 2. To make up this population 

shift between Districts 1 and 2, northern Person County was 

moved from District 4 to District 1 and some precincts in Wake 

County were moved from District 2 to District 4. 

Jones County went in and out of District 1 in various 

iterations of the Senate’s proposals. It was included wholly in 

District 1 so as to approximate the old Black Second, but was 

eventually divided so as to allow more precincts in Wayne 

County to be included in District 3. In addition, all of the city 

of Goldsboro was included in District 1, except an agreement 

was reached specifically to put one Goldsboro precinct (No. 4 

containing the Air Force Base) into District 3. 

The division of Beaufort and Washington Counties was 

an attempt to approximate the western boundary of Senate 

District 1, and in fact, in each county there is just one precinct 

(or township) different between the Senate District 1 and 

Congressional District 3 boundaries, most likely for reasons of 

population balance. In Beaufort County, Washington 

Township and all of the county south of the river are excluded 

from both Congressional District 3 and Senate District 1, and 

the only difference in boundaries is one township north of the 

river. In Washington County, the congressional and senate 

district boundaries also are identical, with the exception of one 

precinct. 

There were numerous iterations of District 12, with the 

Senate ultimately looking to create an urban piedmont district 

which included portions of Guilford, Forsyth and Mecklenburg 

Counties. Once the House -- which originally included only 

  

 



  

205a 

Mecklenburg and Guilford Counties -- agreed to include all 

three urban areas, decisions as to which precincts to put into the 

district were based on Democratic voter performance, shape 

and population balance (one person, one vote). Adding or 

removing a precinct in one area meant comparable 

modifications in another area, nearby or on the other side or 

other end of the district, which could create undesirable effect 

in the adjoining districts. The most desirable precincts in terms 

of Democratic vote could not always be included in the district: 

because the population would not balance out. Thus, the 

symbiotic relationship between the lines in the three urban 

counties resulted in many line changes. In addition, 

municipality lines and major geographical features were 

utilized in several places. For instance, the eastern boundary of 

District 12 in Guilford County generally follow the Greensboro 

city limit line (as denoted in the General Assembly’s 

redistricting computer data base). Similarly, much of the 

eastern boundary of District 12 in Forsyth County follows the 

Winston-Salem city limit line. In Greensboro, straight line 

were drawn along the district’s western edge by following 

~ precincts along Elm Street, Lee Street, and High Point Road. 

Similarly in Mecklenburg County, a portion of District 12 

follows the precincts along South Boulevard. Additionally, 

several Democratic leaning districts in west Winston-Salem 

were left in District 5 so as to provide more home town 

advantage to Congressman Burr. 

See also response to Interrogatory No. 32.  



  

206a 

14. What relative weight did the General Assembly 

give to each of the measures of Democratic/Republican 

strength or support known to it prior to drawing the plan, in 

determining which precincts to include in each redrawn 

district? 

RESPONSE: In the House, all three elections in the General 

Assembly’s redistricting computer data base were used in 

looking at various districts. Generally, total figures were 

looked at and not much precinct by precinct analysis was done, 

except perhaps in Districts 2 and 4 at the very end of the 

process. Representative McMahan looked at registration data, 

but he assumed Republican strength was much greater than 

actual registration. It is not possible to reconstruct the relative 

weights given to the three election results in the data base 

during the redistricting process. In District 12, the House relied 

on the Senate to draw District 12 as a strong Democratic 

district, because it would benefit the Republican districts 

around District 12. Similarly, the House agreed to place 

Forsyth County democrats into District 12 because it helped 

ensure District 5 was more Republican. 

In the Senate, no weight was given to party registration 

data. Equal weight probably was given to the Rand/Gardner 

and Lewis/Smith elections for pure partisan issues. Weight 

was given to the Helms/Gantt election when examining or 

analyzing racial block voting patterns for Section 2 purposes, 

particularly in eastern North Carolina, and in arguing for 

Section 5 preclearance. NCEC data that was considered by 

  

 



207a 

Senator Cooper included a category for “Democratic 

Performance” which was an analyses of data including 

elections more recent than the elections in the General 

Assembly’s redistricting computer data base. 

32. Ifyou claim the 1997 plan was drawn with the 

specific purpose of protecting the incumbency of one or more 

of the existing officeholders elected in the districts of the 1992 

Congressional plan in the 1996 general election, including 

specifically Representative Eva Clayton and Representative 

Mel Watt, state the facts and basis of this claim. 

RESPONSE: Maintaining the six-six partisan balance of the 

state’s congressional delegation was the most important goal in 

drawing the 1997 Plan. Another important consideration was 

protecting all twelve incumbents. Senator Cooper at one time 

or another spoke to all incumbents, and Representati 

McMahan talked with several incumbents or their 

representatives. See response to interrogatoryNo. 11. Some of 

the particular efforts made to protect the incumbents included 

the following. Each incumbent was put in his or her own 

district (except Congresswoman Sue Myrick who, at the time, 

resided in the same neighborhood and census block as 

Congressman Mel Watt) and each district was designed to 

favor the political party of the incumbent. (Congresswoman 

Myrick’s residence is now in her district, although the General 

Assembly’s redistricting computer data base does not reflect 

her current address or when she moved.) Congresswoman  



  

208a 

Myrick’s district was considered a favorable one for her since 

it included much of her home county of Mecklenburg, 

especially Republican areas. 

One aspect of protecting incumbents was preserving the 

territorial, constituent and partisan cores of each district. For 

Congressman Hefner, all of his home county of Cabarrus was 

included in his district. In addition, the House had initially 

looked at running District 12 from Charlotte to Fayetteville, 

which would have had a significant effect on Hefner’s and 

other Democratic districts. In deference to the Senate’s wishes 

and acknowledging the need to preserve Hefner’s district, the 

House backed off its proposal. The House also accepted the 

Charlotte to Greensboro route not only to preserve a 

Democratic district for Mel Watt, but because going anywhere 

else would disrupt the Republican districts bordering District 

12. Congressmen Burr and Ballenger were interested in having 

two counties switched between their districts (as best recalled, 

Davie and Yadkin) as the 1997 Plan was being negotiated. 

Congresswoman Myrick was interested in several northern 

Mecklenburg precincts which were in her district in the 1992 

Plan. (Having these precincts in District 12 had pushed District 

12 through Cabarrus County.) Ultimately Cabarrus was not 

split, and Myrick only kept part of northern Mecklenburg. 

Splitting Charlotte Precinct 77 allowed Myrick to have heavily 

Republican east Mecklenburg in her district and avoided 

placing it in Hefner’s District 8. 

The original House plan did not include Forsyth 

County. The House, very soon after the release of its plan, 

agreed to include Forsyth Democrats in District 12, in part 

because it helped bolster the Republican strength of 

  

 



  
209a 

Congressman Burr’s district. The other reason for agreeing to 
the change was because Winston-Salem was the only major 
Triad city missing from the very urban District 12. In addition, 
three to five precincts that might be considered Democratic | 
leaning in west Winston-Salem were included in Congressman 
Burr’s district rather than in District 12 so as to provide ‘QP 
buffer between his home precinct and District 12 and to provide 
him more of a hometown advantage. This would be significant 
in a general election, and also in the event of a Republican 
primary. 

In the 1992 Plan, Congressman Jones’ residence was 
not in District 3. The original House plan put Jones’ residence 
in the District 3 and the Senate at some point agreed to this and 
reached into Pitt County to place all of his hometown Farmville 
into District 3. Jones and his representatives were not happy 
with the initial Senate plan for District 3, and additional 
changes were made to the plan to accommodate Jones. This 
meant making District | more Democratic and District 3 more 
Republican. A Jones representative kept close watch over » 
District 3 in the negotiations. Early on additional precincts on 
the eastern side of Wayne County, a county where Jones ran 
well, and outside the city of Goldsboro were moved into 
District 3. The Air Force base part of Goldsboro was also 
moved to District 3. In another area, the Senate plan had put 
the Republican portions of New Hanover and Pender Counties 
into District 7 and the more Democratic portion of Wilmington 
into District 3. This raised concerns because it bolstered the 
Democratic vote in District 3. The initial House plan was 
exactly the opposite, putting the Republican area of New 
Hanover and Pender Counties in District 3, and Democratic  



  

210a 

Wilmington in District 7. Ultimately changes were made so 

that neither Pender nor New Hanover Counties were in District 

3. Asaresult, Congressman Jones did not get the Republican 

areas of two counties he wanted included in his district, but he 

was also not forced to take the Democratic Wilmington area. 

In terms of Congresswoman Clayton, her home county of 

Warren was included in District 1. One reason for not 

including Durham County in District 1 was the historic 

differences between the African-American communities in 

Durham and the northeast, and not having Durham in District 

1 was thought to benefit Congresswoman Clayton, especially 

in a primary election. Consideration had to be given to racial 

block voting and Section 2 considerations in drawing District 

1 so that the incumbent would have a fair opportunity to be 

reelected. Another factor contributing to the placement of 

Durham in District 4 was to build a district politically favorable 

to Congressman Price. A large democratic portion of Wake 

County was included in District 2 to improve the Democratic 

base for Congressman Ethridge, which had weakened the 

Democratic base in District 4. Other accommodations which 

cannot be recalled in detail are reflected in the final plan. 

33. What role did race play in the North Carolina 

General Assembly’s construction of Districts 1 and 12 in the 

1997 plan? 

RESPONSE: Partisan voting patterns, especially Democratic 

voting strength drove the redistricting process in District 12. 

Although the summary report for each plan included racial 

percentages, there was never any intent to reach a particular 

  

 



  

211a 

racial percentage. In addition, although Representative 
McMahan was looking primarily at election and registration 
data, he would pass along the racial percentage to African- 
Americans in the House when he was trying to gauge their 
support for the plan in the House. The overriding concern was 
to create a Democratic district. See responses No. 14 and 32. 
Race was important in drawing District 1, primarily because of 
Voting Rights Act considerations, but was only one of several 
factors. The political negotiations over Districts 2,3 and 4, and 
to a lesser extent 7, all affected the political, racial and 
geographic features of District 1. 

 



  

212a 

  
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  Republican Victories in Forsyth County Precincts Abutting District 12 

f~ 
    
  

  

    

Legend 

County Boundary 

Precinct Boundary 

——— District Boundary 

3 Republican Victories 

  

2 Republican Victories 

0 Republican Victories 

  

  
  

N.C. General Assembly, 

Informaton Systems Division.   
B
E
C
 

  
  

 



  

214a 

  

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215a 

REPUBLICAN VICTORIES IN FORSYTH COUNTY PRECINCTS 

ABUTTING DISTRICT 12 (JOINT EXHIBIT 140 EXCERPTS) 

TABLE OF REPUBLICAN VICTORIES IN FORSYTH 

COUNTY PRECINCTS ABUTTING DISTRICT 12 
  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

            

PREC. % | % DEM: | % DEM. | % DEM, lL No. 
No. | DEM. | US. | Lt. | CroFr | oF 

"| REG. ‘SEN. | (Gov. | : APP. : REP. : 
A 1990 | 1988 | 1988 hg 

0303 * | 56.78 33.88 40.66 42.45 3 

0401 5222 28.62 38.02 37.37 3 

0603 40.94 33.21 33.76 31.19 3 

0801 * | 60.11 44.57 46.51 48.23 3 

0802 * | 55.84 36.76 39.94 42.98 3 

1436 * | 55.91 57.04 53.06 52.56 0 

1407 61.60 78.27 64.07 62.39 0 

1403 * [ 55.06 5212 53.14 50.21 J 

1422 * | 76.00 75.77 71.68 69.18 0 

1408 * | 65.75 75.46 66.30 65.84 0 Wa 

1443 57.38 58.15 54.42 50.51 0 

1411 51.53 59,37 49.93 47.72 2 

1427 % 1. 65.25 54.85 53.86 55.87 0 

1441 * | 57.37 28.29 39.60 44.23 3 

1413 50.77 31.07 43.05 47.68 3 

0102 38.27 22.38 29.84 29.00 3 

1202 48.69 27.63 34.24 34.17 3 

0503 37.58 34.75 32.78 29.65 3       

* Precincts cited by district court  



  

216a 

NOTES: The data in this Table includes: (a) 1990 Democratic 

voter registration data; (b) 1990 Gant-Helms U.S. Senate 

election results; (c) 1988 Rand-Gardner Lt. Governor election 

results; and (d) 1988 Lewis-Smith Court of Appeals election 
results. The data is provided for each precinct abutting District 

12, except for that portion of the District boundary which is 

coterminous with Davie County and for which no precinct level 

data is available in the data base. 

  

 



  

  

  

Legend 

S——— County Boundary 

Precinct Boundary 

  

District Boundary 

3 Republican Victories 

2 Republican Victories       

  

1 Republican Victory 

0 Republican Victories 

EL
IT
 

    
N.C. General Assembly, 

Information Systems Division.           

   



  

  218a 

  

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TABLE OF REPUBLICAN VICTORIES IN GUILFORD 

219a 

REPUBLICAN VICTORIES IN GUILFORD COUNTY PRECINCTS 

ABUTTING DISTRICT 12 (JOINT EXHIBIT 141 EXCERPTS) 

COUNTY PRECINCTS ABUTTING DISTRICT 12 
  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

              

PREC. | % % DEM. % DEM. % DEM. | No. 
No. Dim. | Us. | Lr. | Cr.ofF | OF 

REG. | SEN. | :GOv. | Appr. | REP 
| 1990 1988 | 1988 | WINS 

1103 39.64 16.48 27.11 25.80 3 

0221 45.10 38.35 38.51 35.36 3 

0218 47.98 27.16 32.20 32.84 3 

0214 53.73 27.53 37.56 40.38 3 

0204 45.74 33.96 40.55 32.26 3 

0209 53.29 38.87 46.81 45.30 3 

0217 53.03 47.42 46.88 43.61 3 

0220 41.43 39.12 36.06 20731 3 

0223 42.89 37.27 36.67 32.07 3 

10802 51.13 31.34 38.64 33.35 3 

3124 32.86 56.56 47.92 43.58 2 

0122 52.08 55.40 48.58 43.22 2 

0143 51.76 56.42 47.04 43.81 2 

0123 * | 59.68 50.59 51.93 51.38 0 

0117 * | 61.86 65.08 61.68 38.19 0 

0114 * | 58.14 86.91 65.66 6392.1 0 
       



  

  

PREC. % 
No. | DEm. |= 

REG. 

  

  

011 *.162.32 67.51 61.68 52.98 

0112 * | 60.21 43.62 52.73 34.81 
  

  

0 

2 

0128 * | 56.74 44.34 50.78 39.31 2 

2135 43.54 46.81 48.87 38.09 3 

2 

3 

3 

  

  

3133* 1-66.22 66.40 49.01 38.13 
  

1402 * 1.57.27 32.72 42.73 42.51 
  

1602 47.99 19.18 33.33 28.64 
  

1202 * | 63.29 4576 | © 53.37 52.26 1 
  

0702 51.94 21.77 37.41 32.14 
  

      3 

1201 * .; 55.17 31.19 45.19 44.51 3 

0208 44.79 36.44 39.19 33.16 3             

* Precincts cited by district court 

NOTES: The data in this Table includes: (a) 1990 Democratic 
voter registration data; (b) 1990 Gant-Helms U.S. Senate 
election results; (c) 1988 Rand-Gardner Lt. Governor election 
results; and (d) 1988 Lewis-Smith Court of Appeals election 
results. The data is provided for each precinct abutting District 
12, except for that portion of the District boundary which is 
coterminous with Davie County and for which no precinct level 
data is available in the data base. 

  

 



    

  

    Republican Victories in Mecklenburg/Cabarrus County Precincts Abutting District 12 

  

Ty 
    

    

Legend 

County Boundary 

   Precinct Boundary 

   District Boundary 

   & a { 3 Republican Victories 

   2 Republican Victories 

   1 Republican Victory 

  

   0 Republican Victories 

  

    

       
N.C. General Assembly, 

Information Systems Division. 

  

  
 



  

  
222a 

  

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REPUBLICAN VICTORIES 

223a 

COUNTY PRECINCTS ABUTTING DISTRICT 12 

(JOINT EXHIBIT 142 EXCERPTS) 

IN MECKLENBURG/CABARRUS 

TABLE OF REPUBLICAN VICTORIES IN 

MECKLENBURG/CABARRUS PRECINCTS 

  

ABUTTING DISTRICT 12 

  

  

  

  

  

  

  

  

  

  

  

  

  

  

MECK. | % | % DEM. | % DEM. % DEM. Nog 
PREC. | DEM. | US. LT. . | CT,OF | OF 
No. . | REG. | SEN. Gov. Arp, Cs Rep, 

=F i 1990 1988 | 1988 | WiNs 

0601 51.26 | 49.43 4326 3713173 

0104 * | 54.50 $1.76" 42.12 38.484 2 

0195 5046 | 60.77 | 48.04 | 43.44] 2 

0184 53.44 64.22 | 48.15 4657) 2 

0145* | 5910 4760] 4530] 4205) “3 

0105 57.03 60.45 50.35 470211 

0133%1 5573 81.071 4387{ 38671 2 : 

0134 * 54.60 49.01 46.19 44 87 3 

0107 * 54.27 61.88 52.61 49.08 1 

0135 53.14 59.88 | 49.41 38.19 | 2 

0147 49.57 | 47.03 40761 27371 3 

0118 47.78 46.80 42.73 27.24 3 

0101 51.30 57.71} 45.27 3541 | 2 

0108 49.01 50.28 42544 “28551 9                  



  

  

  

  

    

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

    

MECK. : % 

PREC. DEM. 

“No. | REG. EN. 

0120 55.02 | 56.40 38.10 | 2 

0110* | 63.45| 73.01 5578 | © 

0121* | 5945] 60.11 $2327 4330) 

0151 51.66 | S490| 4368) 38.14] 2 

0138 122% “%433%1 44953 40671 2 

0137 53374 47811 41801 3778]: 3 

0150 51.180 4880} 3927] 36: 3 

0159 5065 | 5057| 38.01 34.23.87 0m 

0158 0.09) ave) aes] a3 3 

0176 36.61 4659 | 3485] 2445] 3 

0192 2820 | 49403 3238) 22441 3 

1601 4083 | 4838 3425| 2840] 3 

1801 $1871 24750} 4801] 366613 

0301* | 5882 | 4290] 4558] 4297| 3 

o179* § 5646 42951 4296] 404013 

0180 $3.37 47.40 | 42.18 39.11 | 3 

0189 * | 54.21 28374 3p] "mass 

1400* ] s0.14) 30203] 2655] 3442) 3           
  

  

   



  

225a 

  

  

  

              

  

  

  

  

  

  

  

              

MECK. | % | %DEM. | % DEM. | % DEM. | No. 
PREC. | DEM. U.S. LT. CT.OF | OF 

No. | REG. | SEN. | Gov. | Apr. | REP. 

|| 190 | ess | 1988 | wns 
1501 49.00 33.04 31.03 27.44 3 

1001 * 50.22 45.18 46.65 44.74 3 

0901 43.99 41.87 34.20 26.16 3 

CABAR. | %. | %DEm. | % Dem. % DEM. ‘No. 
PREC. | DEM. | US. “LT. +. CT.OF | -oF 
No. REG. SEN. Gov. APP. | REP. 

LE 100) 1988 | 1988 | Wins 

0301 49.73 31.54 40.28 37.20 3 

0204 37.80 33.20 36.84 34.17 3 

0203 41.68 32.48 36.75 34.26 3 

0103 49.59 30.89 37.69 36.64 3 

0101 42.37 42.03 36.43 33.00 3 
  

* Precincts cited by district court 

  

  
NOTES: The data in this Table includes: (a) 1990 Democratic 

voter registration data; (b) 1990 Gant-Helms U.S. Senate 

election results; (c) 1988 Rand-Gardner Lt. Governor election 

results; and (d) 1988 Lewis-Smith Court of Appeals election 

results. The data is provided for each precinct abutting District 
12, except for that portion of the District boundary which is 

coterminous with Davie County and for which no precinct level 

data is available in the data base.  



  

226a 

  

  

  
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  1997 Congressional Plan A - | 

District 1 October 18, 1999 
  

  

    

  
      

  

  

  

  

  

  

  

  

  

  

  

  

  

  
  

  

  

    
  

  

          
  

  

    

   



  

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October 18, 1999 

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N.C. General Assembly 

egislative Service 

Redistricting 

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1997 Congressional Plan A — 

District 12 

  
 
 

 
 
 
 

 
 

 
 
 
 

 
 
 
 

 
 

 
 

 
 
 
 
 
 

 
 
 
 

  
 
 
 
   

  
  

      
  

 
 

 



  

230a 

  

  

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231a 

EXCERPTS FROM DISTRICT SUMMARIES FOR 
1997 CONGRESSIONAL PLAN A 

TOTAL POPULATIONS, ALL AGES 
  

Pop White Black Am Ind Asian/PI 
  

551,867 

100% 

269,154 

48.77% 

276,565 

50.11% 

3,415 

0.62% 

1,319 

0.24% 
  

552,630 

100% 

283,264 

51.26% 

260,215 

47.09% 

2.252 

0.41% 

5,169 

0.94% 0.31% 
  

VOTING AGE POPULATIONS 
  

Pop White Black Am Ind Asian/PI Other 
  

402,890 

100% 

211,720 

52.55% 

186,950 

46.40% 

2,405 

0.60% 

923 

0.23% 

950 

0.24% 
  

414,458 

100% 

226,710 

54.70% 

181,532 

43.80% 

1,645 

0.40% 

3,456 

0.83% 

1,115 

0.27% 
  

REGISTRATION 
  

Pop White Black Other Dem Repub 
  

269,324 

100% 

147,513 

54.77% 

120,342 

44.68% 

1,453 

0.54% 

232,287 

86.25% 

31,893     

280,089 

100%   152,229 34.35%   127,154 45.40%   706 

0.25%   199,880 

71.36% 

11.84% 

66,1 

23.63% 
  

ELECTIONS 
  

Senate 

Gantt 

Senate 

Helms 

Lt. Gov. 

Rand 

Lt. Gov. 

Gardner 

Court 

Lewis 

Court 

Smith 
  

84,252 

53.49% 

73,258 

46.51% 

96,705 

61.76% 

59,882 

38.24% 

102,099 

69.94% 30.06% 

43,884 

      107,761 

66.35%   54,646 

33.65%   95,262 

62.20% 

57,894 

37.80%     86,162 

61.46%   38.54% 54,033        



  

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House 97 Congressional Plan A.1 — 

November 2, 1999 District 12 

 
 

[ ] District 6 

DANNNSST District 8 

    

 
 

 
 

 
 

 
 

 
 

      
  

 
 

 
  
 

  
    

 
 

  
 
 

 
 
 
 

  
 
 
 
 

 
 

 
 

 
 

 
 

 
 
 
 

 
 
 
 
 
 

 
 
 
 
 
 

  
 
 

 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 
 
 

    
 
 
 
 

 
 

 
 

 
 
 
 

 
 

  
 
 

 
 

 
 

 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 
 
 

 
 

 
 

 
 

 
 

 
 

  
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 
 
 

 
 

  
 
 

 
 

 
 

 
 

 
 

 
 
 
 

 
 

 
 

  

    
  

 



  

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237a 

EXCERPTS FROM DISTRICT SUMMARIES FOR 
HOUSE 97 CONGRESSIONAL PLAN A.1 

ToTAL POPULATIONS, ALL AGES 
  

Pop White Black Am Ind Asian/PI Other 
  

551,940 

100% 

268,348 

48.62% 

277,404 

50.26% 

3,478 

0.63% 

1,413 

0.26% 

1,29 

0.249 
  

  551,710 100% 

320,233 

58.04% 

220,786 

40.02% 

2,439 

0.44% 

6,452 

1.17% 

1,801 

0.33% 
  

VOTING AGE POPULATIONS 
  

Pop White Black Am Ind Asian/PI Other 
  

402,972 

100% 

210,724 

52.29% 

188,002 

46.65% 

2,458 

0.61% 

982 

0.24% 

864 

0.21% 
  

418,004 

100% 

256,574 

61.38% 

154,088 

36.86% 

1,768 

0.42% 

4,357 

1.04% 

1,217 

0.29% 
  

REGISTRATION 
  

Pop White Black Other Dem Repub] 
  

267,461 

100% 

144,133 

53.89% 

121,822 

45.55% 

1,506 

0.56% 

232,978 

87.11% 11.09%   
    277,866 100%   167,996 60.46%   108,986 39.22%   884 

0.32%   188,247 

67.75%   29,655 » 73,85 

26.58% 
  

ELECTIONS 
  

Senate 

Gantt 

Senate 

Helms 

Lt. Gov. 

Rand 

Lt. Gov. 

Gardner 

Court 

Lewis 

Court 

Smith 
  

84,552 

54.54% 

70,465 

45.46% 

96,622 

62.86% 

57,085 

37.14% 

100,740 

70.78% 29.22% 

41,594 

      100,148 62.27%   60,668 

37.73%   88,449 

58.62%   62,440 

41.38%   80,013 

57.53%   42.47% 59,077        



  

238a 

 
 

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240a 

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241a 

  

EXCERPTS FROM DISTRICT SUMMARIES FOR 
97 CONGRESS COOPER 2.0 

ToTAL POPULATION, ALL AGES 
  

Pop White Black Am Ind Asian/Pl Other 
  

551,434 

100% 

280,659 

50.90% 

264,800 

48.02% 

3,394 

0.62% 

1,142 

0.21% 

1,4 

0.26% 
  

551,508 

100% 

320,511 

58.12% 

220,672 

40.01% 

2,043 

0.37% 

6,259 

1.13% 

2,023 

0.37%     

VOTING AGE POPULATIONS 
  

Pop White Black Am Ind Asian/PI Other 
  

404,733 

100% 

221,039 

54.61% 

179,543 

44.36% 

2,400 

0.59% 

816 

0.20% 

993 
0.25% 

  

417,019 

100% 

257,484 

61.74% 

152,347 

36.53% 

1,501 

0.36% 

4,315 

1.03% 

1,373 

0.33% 
  

REGISTRATION 
  

Pop White Black Other Dem Repub 
  

270,215 

100% 

152,780 

56.54% 

116,007 

42.93% 

1,428 

0.53% 

231,905 

85.82% 
  33,081 

12.24% 
    270,186   100% 

169,148 

62.60%   100,157 37.07%   881 

0.33%   180,459 

66.79% 

74,43 

27.55% 
  

ELECTIONS 
  

Senate 

Gantt 

Senate 

Helms 

Lt. Gov. 

Rand 

Lt. Gov. 

Gardner 

Court 

Lewis 

Court 

Smith 
  

83,981 

52.57% 

75,769 

47.43% 

96,913 

61.33% 

61,105 

38.67% 

102,903 

69.52% 30.48% 

45,120 

      101,650 63.27%   59,000 

36.73%   87,434 

57.48%   64,668 

42.52%   77,987 

56.59%   43.41% 59,828        



  

242a 

[This page intentionally left blank.] 

  
 



243a 

OPINIONS OF UNITED STATES DISTRICT COURT FOR THE 
EASTERN DISTRICT OF NORTH CAROLINA, APRIL 14, 1998 

[Caption Omitted in Printing] 

MEMORANDUM OPINION 

This matter is before the Court on the Plaintiffs’ 
Motions for Preliminary Injunction and for Summary Judg- 
ment, and on the Defendants’ Motion for Summary Judgment. 
The underlying action challenges the congressional redistrict- 
ing plan enacted by the General Assembly of the State of North 
Carolina on March 31, 1997, contending that it violates the 
Equal Protection Clause of the Fourteenth Amendment, and 
relying on the line of cases represented by Shaw v. Hunt, 517 
U.S. 899, 116 S. Ct. 1894, 135 L. Ed. 2d 207 (1996) (“Shaw 
II”), and Miller v. Johnson, 515 U.S. 900,904, 115 S. Ct. 2475, 
2482, 132 L. Ed. 2d 762 (1995). Ww 

Following a hearing in this matter on March 31, 1998, 
the Court took the parties’ motions under advisement and 
thereafter issued an Order and Permanent Injunction (1) finding 
that the Twelfth Congressional District under the 1997 North 
Carolina Congressional Redistricting Plan is unconstitutional, 
and granting Plaintiffs’ Motion for Summary Judgment as to 
the Twelfth Congressional District; (2) granting Plaintiffs’ 
Motion for Preliminary Injunction and granting Plaintiffs’ 
request, as contained in its Complaint, for a Permanent Injunc- 
tion, thereby enjoining Defendants from conducting any 
primary or general election for congressional offices under the   
 



  

244a 

redistricting plan enacted as 1997 N.C. Session Laws, Chapter 

11; and (3) ordering that the parties file a written submission 

addressing an appropriate time period within which the North 

Carolina General Assembly may be allowed the opportunity to - 

correct the constitutional defects in the 1997 Congressional 

Redistricting Plan, and to present a proposed election schedule 

to follow redistricting which provides for a primary election 

process culminating in a general congressional election to be 

held on Tuesday, November 3, 1998, the date of the previously 

scheduled general election. 

That Order was issued on April 3, 1998, by a majority 

of the three-judge panel. Circuit Judge Sam J. Ervin, III, 

dissented. Defendants filed a Motion for a Stay of the April 3 

Order, which was denied by this Court by Order dated April 6, 

1998. Defendants also appealed the April 3 Order to the 

Supreme Court, and the appeal is still pending in that Court. 

This Memorandum and Opinion refers to that Order, and shall 

be the opinion of the Court. - 

BACKGROUND 

In Shaw II the United States Supreme Court held that 
the Twelfth Congressional District created by the 1992 Con- 

gressional Redistricting Plan (hereinafter, the “1992 plan”) had | 

been race-based and could not survive the required “strict 

scrutiny.” 517 U.S. 899, 116 S. Ct. 1894. The five plaintiffs 
in Shaw lacked standing to attack the other majority-minority ~ 

district (the First Congressional District under the 1992 plan) 

because they were not registered voters in the district. Id. =~ 

  

 



  

245a 

Soon after the Supreme Court ruled in Shaw II, three 

residents of Tarboro, North Carolina, filed the original Com- 

plaint in this action on July 3, 1996. These original Plaintiffs 

resided in the First Congressional District (alternatively, 

“District 1”) as it existed under North Carolina’s 1992 plan. 

The Plaintiffs charged that the First Congressional District 

violated their rights to equal protection under the United States 

Constitution because race predominated in the drawing of the 

District. The action was stayed pending resolution of remand 

proceedings in Shaw v. Hunt, and on July 9, 1996, the same 

three Tarboro residents joined the Plaintiffs in Shaw in filing an 

Amended Complaint in that case, similarly 

challenging District I. 

By Order dated September 12, 1997, the three-judge 

panel in Shaw approved a congressional redistricting plan 

enacted on March 31, 1997, by the General Assembly as a 

remedy for the constitutional violation found by the Supreme 

Court to exist in the Twelfth Congressional District (alterna- 

tively, “District 12”). The Shaw three-judge panel also 
dismissed without prejudice, as moot, the plaintiffs’ claim that 

the First Congressional District in the 1992 plan was unconsti- 

tutional. Althoughit was a final order, the September 12, 1997, 

decision of the Shaw three-judge panel was not preclusive of 

the instant cause of action, as the panel was not presented with 

a continuing challenge to the redistricting plan.! 

  

y In its final Memorandum Opinion, the three-judge panel in Shaw, 

noted that there was “no substantive challenge to the [1997] plan by any 

party to this action,” and closed by explicitly “noting the limited basis of the 

(continued...) 

 



  

246a 

On October 17, 1997, this Court dissolved the stay 
previously entered in this matter. On the same day, two of the 
original three Plaintiffs, along with four residents of District 12, 
filed an amended Complaint challenging the 1997 remedial 
congressional redistricting plan (the “1997 plan”), and seeking 
a declaration that the First and Twelfth Congressional Districts 
in the 1997 plan are unconstitutional racial gerrymanders. The 
three-judge panel was designated by order of Chief Judge 
Wilkinsion [sic] of the Fourth Circuit Court of Appeals, dated 
January 23, 1998. The Plaintiffs moved for a preliminary 
injunctionon J anuary 30, 1998, and for summary judgment on 
February 5, 1998. The Defendants filed their instant summary 
Judgment motion on March 2, 1998, and a hearing on these 
motions was held on March 31, 1998. 

FACTS 

The North Carolina General Assembly convened in 
regular session on January 29, 1997, and formed redistricting 
committees to address the defects found in the 1992 plan. 

  

(...continued) 
approval of the plan that we are empowered to give in the context of this litigation. It is limited by the dimensions of this civil action as that is defined by the parties and the claims properly before us. Here, that means 

  

that we only approve the plan as an adequate remedy for the specific violation of the individual equal protection rights of those plaintiffs who successfully challenged the legislature’screation of former District 12. Our : approval thus does not-cannot-run beyond the plan’s remedial adequacy with respect to those parties and the equal protection violation foundasto former District 12.” Shaw v. Hunt, No. 92-202-CIV-5-BR, at 8 (EDNC. Sept. 12, 1997). . 

  

  



247a 

These newly formed House and Senate Committees 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. Affidavit of Senator Roy A. Cooper, III (“Cooper Aff”) 93. In 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 congressio- nal delegation. Cooper AfT. 195. 8, 10, 14; Affidavit of Gary O. Bartlett, Executive Secretary-Director of the State Board of Elections (“Bartlett Aff”), Vol. I Commentary at 9-10. 

To achieve the second goal, the redistricting committees draw the new plan (1) to avoid placing two incumbents in the same district and (2) to preserve the partisan core of the existing districts to the extent consistent with the goal of curing the defects in the old plan. Cooper Aff, T14. The plan as p i enacted reflects these directives: no two incumbent Congress- men reside in the same district, and each district retains at least 60% of the population of the old district. Cooper Aff. 18, Affidavit of Representative W. Edwin McMahan (“McMahan Aff.) §7. 

L The Twelfth Congressional District 

District 12 is one of the six predominantly Democratic districts established by the 1997 plan to maintain the 6-6 partisan division in North Carolina’s congressional delegation.   
 



  

248a 

District 12 is not a majority-minority district,? but 46.67 

percent of its total population is African-American. Bartlett 

Aff., Vol. I Commentary at 10 and 11. District 12 is composed 

of six counties, all of them split in the 1997 plan. The racial 

composition of the parts of the six sub-divided countics 

assigned to District 12 include three with parts over 50 percent 

African-American, and three in which the African-American 

percentage is under 50 percent. Declaration of Ronald E. 

Webber (“Webber Dec.””) 18. However, almost 75 percent of 

the total populationin District 12 comes from the three county 

parts which are majority African-American in population: 

Mecklenburg, Forsyth, and Guilford counties. Jd. The other 

three county parts (Davidson, Iredell, and Rowan) have narrow 

corridors which pick up as many African-Americans as are 

needed for the district to reach its ideal size.> Id. 

Where 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 popula- 

tion assigned to neighboring District 5 is African-American. 

Id. 920. Similarly, Mecklenburg County is split so 51.9 percent 

of its total population allocated to District 12 is African- 

  

2 The Twelfth is not a majority-minority district as measured by 

any of three possible criteria. African-Americans constitute 47 percent of 

the total population of District 12, 43 percent of the voting age population 
of the District, and 46 percent of the registered voters in the District. 

Peterson Aff., at 8. 

3 An equitably populated congressional district in North Carolina 

needs a total population of about 552,386 persons using 1990 Census data. 
3 8 REVISE o TR TAN 

  

 



249a 

American, while only 7.2 percent of the total population 

assigned to adjoining District 9 is African-American. 

A similar pattern emerges when analyzing the cities and 

towns split between District 12 and its surrounding districts: 

the four largest cities assigned to District 12 are split oneey 
racial lines. Jd 423. For example, where the City of Charlotte 

is split between District 12 and adjacent District 9, 59.47 
percent of the population assigned to District 12 is African- 

American, while only 8.12 percent of the Charlotte population 

assigned to District 9 is African-American. Affidavit of Martin 

B. McGee (“McGee Aff.”), Ex. L. And where the City of 

Greensboro is split, 55.58 percent of the population assigned to 

District 12 is African-American, while only 10.70 percent of 

the population assigned to District 6 is African-American. Id. 

An analysis of the voting precincts immediately 

surrounding District 12 reveals that the legislature did not 

simply create a majority Democratic district amidst surround- 

ing Republican precincts. For example, around the Southwest 

edge of District 12 (in Mecklenburg County), the legislature 

included within the district’s borders several precincts with 
racial compositions of 40 to 100 percent African-American; 

while excluding from the district voting precincts with less than 

35 percent African-American population, but heavily Demo- 

cratic voting registrations. Among Mecklenburg County 

precincts which are immediately adjacent to District 12, but not 

inside it, are precincts with 58.818 percent of voters registered 

as Democrats, and precincts that are 56.464 percent Democratic 

54.213 percent Democratic, 59.135 percent Democratic, 59.225 

percent Democratic, 54.498 percent Democratic, 59.098   
 



  

250a 

percent Democratic, 55.72 percent Democratic, 54.595 percent | 

Democratic, 54.271 percent Democratic, 63.452 percent 

Democratic, and 59.453 percent Democratic. Id, Ex. P. 

Similarly, Forsyth County precincts that are immediately 

adjacent to, but not inside, District 12 include precincts with 

57.371 percent Democratic registration, 65.253 percent 

Democratic registration, 65.747 percent Democratic registra- 

tion, 65.747 percent Democratic registration, 76 percent . 

Democratic registration, 55.057 percent Democratic registra- 

tion, 55.907 percent Democratic registration, 56.782 percent 

Democratic registration, 55.836 percent Democratic registra- 

tion, and 60.113 percent Democratic registration. Id., Ex. 0. 

Finally, District 12 was drawn to exclude precincts with 59.679 

percent Democratic registration, 61.86 percent Democratic 

registration, 58.145 percent Democratic registration, 62.324 

percent Democratic registration, 60.209 percent Democratic 

registration, 56.739 percent Democratic registration, 66.22 

percent Democratic registration, 57.273 percent Democratic 

registration, 55.172 percent Democratic registration, and 

63.287 percent Democratic registration, all in Guilford County. 

Id., Ex. N. 

On the North Carolina map, District 12 has an irregular 

shape and is barely contiguous in parts. Its Southwest corner 

lies in Mecklenburg County, very close to the South Carolina : 

border, and includes parts of Charlotte. The District moves 

North through Rowan County and into Iredell County. There . 

it juts West to pick up parts of the City of Statesville. More E 

than 75 percent of the Statesville population that is included in 

District 12 is African-American, while only 18.88 percent of 

  

 



  

  

251a 

the population of Statesville excluded from District 12 is 
African-American. McGee Aff, Ex. L. From Statesville, the 
District moves East into Rowan County. There it dips to the 
South to include Salisbury, before turning to the Northeast and 
entering Davidson County and the City of Thomasville. Over 
41 percent of the populations of Salisbury and Thomasville that 
are included in District 12 are African-American, while only 
15.39 and 9.55 percent, respectively, of those that are excluded 
from the District are African American. Jd. The District makes 
a northwesterly incursion into F orsyth County to include parts 
of Winston-Salem, where 77.39 percent of the population 
within District 12 is African-American,and only 16.06 percent 
of the population left out is African-American. Jd. The District 
moves to the East and narrows dramatically before opening up 
again to include the predominantly African-American parts of 
Greensboro, where the District ends. 

Objective, numerical studies of the compactness of 
congressional districts are also available. In his report, “An 
Evaluation of North Carolina’s 1998 Congressional Districts,” 
Professor Gerald R. Webster, one of the Defendants’ expert 
witnesses, presents statistical anal ysesof “comparator compact- 
ness indicators” for North Carolina’s congressional districts 
under the 1997 plan. In measuring the districts’ dispersion 
compactness* and perimeter compactness,’ Professor Webster 

  

4 “Dispersion com actness” measures the geographic “dis ersion” p 
of a district. To calculate this a circle is circumscribed around a district. 
The reported coefficient is the proportion of the area of the circumscribed circle which is also included in the district. This measure ranges from 1.0



  

252a    
    
    

    

   

offers two of the “most commonly recognized and applied” 

compactness indicators. Webster, at 13 (citing Pildes & Niemi, 

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

Evaluating Election-District Appearances After Shaw v. Reno, 

92 Mich. L. Rev. 483, 571-573, table 6 (1993) (hereinafter, 

“Pildes & Niemi); and see Bush v. Vera, 517 U.S. 952, 7, 

116 S. Ct. 1941, 1952, 135 L. Ed. 2d 248 (1996) (citing Pildes 

& Niemi compactness factors as supporting evidence for 

holding three Texas congressional districts unconstitutional). 

In discussing the relative normalcy of various compact- 

ness measures, Pildes and Niemi suggest that a “low” disper- 

sion compactness measure would be equal to or less than 0.15. 

Pildes & Niemi, at 564. They suggest that a “low” perimeter 

compactness measure is equal to or less than 0.05. Id. North 

Carolina’s Twelfth Congressional District under the 1997 plan 

has a dispersion compactnessindicator of 0.109 and a perimeter 

compactness indicator of 0.041. Webster, at table 3. These 

figures are much lower than the mean compactness indicators 

for North Carolina’s twelve congressional districts under the 

1997 plan. The average dispersion compactness indicator for 

the State is 0.354, and the average perimeter compactness 

  

3 (...continued) 
(most compact) to 0. 0 (least compact). Webster, at 14. 

“Perimeter compactness” is based upon the calculation of the 

district’s perimeter. The reported coefficient is the proportion of the area 
in the district relative to a circle with the same perimeter. This measure 

ranges from 1.0 (most compact) to 0.0 (least compact). Webster, at 14. The 
equation used here is (((4 x []) x Area of district)+ (District’ SPerimeterl). 
Webster, at table 3. 

 



253a 

indicatoris 0.192. Jd. The next lowest dispersion compactness 
indicator after District 12 is the 0.206 in the Fifth Congressio- 
nal District, and the next lowest perimeter compactness 
indicator is the First Congressional District’s 0.107. Id. 

II. The First Congressional District 

District 1 is another predominantly Democratic district 
established by the 1997 plan. Unlike District 12,it is a 
majority-minority district, based on percentages of the total 
population of the District, as 50.27 percent of its total popula- 
tion is African-Americans. Id., Vol. I Commentary at 10. 
District 1 is composed of ten of the 22 counties split in drawing 
the statewide 12 district 1997 plan. Weber Dec. 916. Half of 
the twenty counties represented in District 1 are split. Id Of 
the ten sub-divided counties assigned to District 1, four have: 
parts with over 50 percent African-American population, four 
others have parts with over 40 percent African-American 
population, and two others have parts with over 30 percent » 
African-American population. Id. 917. 

In each of the ten counties that are split between District 
1 and an adjacent district, the percent of the population that is 
African-Americanis higher inside the district than it is outside 
the district, but within the same county. /d., 19 and Table 2. 
The disparities are less significant than in the county splits 

  

$ While 50.27 percent of the total population of District 1 is African-American, only 46.54 percent of the voting age population is 
African-American, based on the 1990 census data. Bartlett Aff, Vol. I 
Commentary at 10.   
 



  

254a 

involving District 12. Id, Table 2. For example, where 

Beaufort County is split between Districts 1 and 3, 37.7 percent 

of the total population of Beaufort County allocated to District 

1 is African-American, while 22.9 percent of the total popula- - 

tion of Beaufort County assigned to District 3 is African- 

American. 
/ 

Similarly, nine of the 13 cities and towns split between 

District 1 and its neighboring districts are split along racial 

lines. Id., 422. For example, where the City of New Bern is 

split between District 1 and adjacent District 3, 48.27 percent _ = 

of the population assigned to District 1 is African-American, 

while 24.49 percent of the New Bern population assigned to 

District 3 is African-American. McGee Aff., Ex. L. 

Viewed on the North Carolina map, District 1 isnotas 
irregular as District 12. In the North, it spans 151.2 miles 

across, from Roxboro, Person County, in the West, to Sunbury, 

Gates County, in the East. Affidavit of Dr. Alfred W. Stuart 

(“Stuart Aff.”), table 1. It is shaped roughly like the state of 

Florida, although the protrusion to the South from its “pan- 

handle” is only approximately 150 miles long (to Goldsboro, 

Wayne County, with two irregularities jutting into Jones, | 

Craven, and Beaufort Counties. Cooper Aff., attachments. 

These irregularities surround the peninsular extension of the 

Third Congressional District from the East, allowing the 

incumbent from the previous Third Congressional District to 

retain his residence within the boundaries of the same district, . 

and avoiding placing two incumbents in District 1. 

  

 



255a 

The “comparator compactness indicators” from 
District 1 are much closer to the North Carolina mean compact- 
ness indicators than are those from District 12. For example, 
District 1 has a dispersion compactness indicator of 0.317 and 
a perimeter compactness indicator of 0.107. Webster, at table 
3. This dispersion compactness indicator is not significantly 
lower than the State’s mean indicator of 0.354, and is higher 
than the dispersion compactness indicators of Districts 12 
(0.109), 9 (0.292), and 5 (0.206). Id. It may be noted that 
Districts 5 and 9 are next to, and necessarily shaped by, District 
12. District 1 has a perimeter compactness indicator of 0.107, 
which is lower than North Carolina’s mean perimeter compact- 
ness indicator (0.192), but much hi gher than Pildes and Niemi’s 
suggested “low” perimeter compactness indicator (0.05). 
District 1’s perimeter compactness indicator is also much 
higher than that of District 12 (0.041). 1d 

DISCUSSION w 

The Equal Protection Clause of the United States 
Constitution provides that no State “shall deny to any person 
within its jurisdiction the equal protection of the laws.” U.S. 
Const. amend, 14, § 1. The United States Supreme Court 
explained in Miller v. Johnson, 515 U.S., at 904, 115 S. Ct., at 
2482, that the central mandate of the Equal Protection Clause 
“is racial neutrality in governmental decisionmaking.” Applica- 
tion of this mandate clearly prohibits purposeful discrimination 
between individuals on the basis of race. Shaw v. Reno, 509 
U.S. 630,642,113 S. Ct. 2816, 2824,125 L.Ed. 2d 511 (1993)   
 



  

256a 

(“Shaw I"), (citing Washington v. Davis, 426 U.S. 229, 239, 

96 S. Ct. 2040, 2047, 48 L. Ed. 2d 597 (1976)). 

As the Supreme Court recognized, however, the use of 

this principle in “electoral districting is a most delicate task.” 

Miller, 515 U.S., at 905, 115 S. Ct., at 2483. Analysis of 
suspect districts must begin from the premise that “[I]Jaws that 

explicitly distinguish between individualson racial grounds fall 

within the core of [the Equal Protection Clause’s] prohibition.” 

Shaw I, 509 U.S., at 642, 113 S. Ct., at 2824. Beyond that, 

however, the Fourteenth Amendment’s prohibition “extends. 

not just to explicit racial classifications,” Miller, 515 U.S., at 

905, 115 S. Ct., at 2483, but also to laws, neutral on their face, 

but “unexplainable on grounds other than race,” Arlington 

Heights v. Metropolitan Housing Development Corp, 429 U.S. 

252, 266, 97 S. Ct. 555, 564, 50 L. Ed. 2d 450 (1977). 

In challenging the constitutionality of a State’s 

districting plan, the “plaintiff bears the burden of proving the 

race-based motive and may do so either through ‘circumstantial 

evidence of a district’s shape and demographics’ or through 

‘more direct evidence going to legislative purpose.’ ” Shaw II, 

517 US.,at __ , 116 S. Ct., at 1900 (quoting Miller, 515 

U.S., at 916, 115 S. Ct., at 2488). In the final analysis, the 

plaintiff must show “that race was the predominant factor 

motivating the legislature’s decision to place a significant 

number of voters within or without a particular district.” 1d., 

(quoting Miller, 515 U.S., at 916, 115 S. Ct., at 2488). 

  

 



257a 

Once a plaintiff demonstrates that race was the predom- 
inant factor in redistricting, the applicable standard of review 
of the new plan is “strict scrutiny.” Thus, in Miller the 
Supreme Court held that strict scrutiny applies when race is the 
“predominant” consideration in drawing the district lines such 
that “the legislature subordinate[s] race-neutral districtin 
principles . . . to racial considerations.” 515 U.S, at 916, 115 
S. Ct., at 2488. Under this standard of review, a State may 
escape censure while drawing racial distinctions only if it is 
pursuing a “compelling state interest.” Shaw II, 517 U.S., at 
__, 116 8. Ct., at 1902. 

However, “the means chosen to accomplish the State’s 
asserted purpose must be specifically and narrowly framed to 
accomplish that purpose.” Wygant v. Jackson Bd. of Ed., 476 
U.S.267,280, 106 S. Ct. 1842, 1850, 90 L. Ed. 2d 260 (1986) 
(opinion of Powell, J.). As the Supreme Court required in 
Shaw II, where a State’s plan has been found to be a raciaiey 
gerrymander, that State must now “show not only that its 
redistricting plan was in pursuit of a compelling state interest, 
but also that its districting legislation is narrowly tailored to 
achieve that compelling interest.” 517 US.at _ ,1168.Ct. 
at 1902. 

Va
 

N
T
 

ee
 
p
V
 

~
~
 8
 

\v
 

We are cognizant of the principle that “redistrictingand 
reapportioning legislative bodies is a legislative task which the 
federal courts should make every effort not to preempt.” Wise 
v. Lipscomb, 437 U.S. 535, 539, 98 S. Ct. 2493, 2497, 57 L. 
Ed. 2d 411 (1978) (citations omitted). “A State should be 
given the opportunity to make its own redistricting decisions so 

p
T
 

Ad
   
 



  

258a 

long as that is practically possible and the State chooses to take 

the opportunity. When it does take the opportunity, the 

discretion of the federal court is limited except to the extent 

that the plan itself runs afoul of federal law.” Lawyer v. Dep't 

of Justice, US. , ,1178.Ct.2186,2193,138 L.Ed. 

2d 669 (1997) (internal citations omitted). Thus, when the 

federal courts declare an apportionment scheme 

unconstitutional-as the Supreme Court did in Shaw II-it is 

appropriate, “whenever practicable, to afford a reasonable 

opportunity for the legislature to meet constitutional require- 

ments by adopting a substitute measure rather than for the 

federal court to devise and order into effect its own plan. The 

new legislative plan, if forthcoming, will then be the governing 

law unless it, too, is challenged and found to violate the 

Constitution.” Wise, 437 U.S., at 540, 98 S. Ct., at 2497. 

L. The Twelfth Congressional District 

As noted above, the final decision of the three-judge 

panel in Shaw only approved the 1997 Congressional Redis- 

tricting Plan “as an adequate remedy for the specific violation 

of the individual equal protection rights of those plaintiffs who 

successfully challenged the legislature’s creation of former 

District 12.” Shaw v. Hunt, No. 92-202-CIV-5-BR, at 8 

(E.D.N.C. Sept. 12, 1997). In the instant case, we are faced 

with a ripe controversy as to the newly-configured Twelfth 

Congressional District. This panel must thus decide whether, 

as a matter of law, District 12 violates the equal protection 

rights of the Plaintiffs who live within the district and challenge 

its constitutionality. 

  

 



259a     In holding that District 12 under the 1992 plan was an 
unconstitutional racial gerrymander, the Supreme Court in 
Shaw II noted, “[n]o one looking at District 12 could reason- 
ably suggest that the district contains a ‘geographically 
compact’ population of any race.” 517 U.S, at 1168. Ct. at 1906. The Shaw II Court thus struck the old District 12 2 
unconstitutional as a matter of law, In redrawing North 
Carolina’s congressional districts in 1997 the General Assem- 
bly was, of course, aware that District 12 under the 1992 plan 
had been declared unconstitutional; curing the constitutional 
deficiencies was one of the legislature’s declared goals for the 
redistricting process. Cooper Aff. 415, 8, 10, 14. 

Defendants now argue that the changes in District 12 
between the 1992 and 1997 plans are dramatic enough to cure 
it of its constitutional defects, They point to the fact that the 
new District 12 has lost nearly one-third (31.6 percent) of the 
population from the 1992 district and nearly three-fifths (58.4 w 
percent) of the land. These numbers do not advance the 
Defendants’ argument or end the Court’s inquiry. As Defen- 
dants themselves note, the Court’s role is limited to determin- 
ing “whether the proffered remedial plan is legally unaccept- 
able because it violates anew constitutional or statutory voting 
rights-that is, whether it fails to meet the same standards 
applicable to an original challenge of a legislative plan in 
place.” McGhee v. Granville County, 860 F.2d 110, 115 (4th 
Cir. 1988) (citing Upham v. Seamon, 456 U.S. 37,42,102 8S. 
Ct. 1518, 1521,71 L. Ed. 2d 725 (1982)). A comparison of the 

~ 1992 District 12 and the present District is of limited value 
here. The issue in this case is whether District 12 in the present 

 



  

260a 

plan violates the equal protection rights of the voters residing 

within it. 

In Shaw I, the Supreme Court described old District 12 

as “unusually shaped. It is approximately 160 miles long and 

for much of its length, no wider than the [Interstate]-85 : 

corridor. It winds in snake-like fashion through tobacco 

country, financial centers, and manufacturing areas until it 

gobbles in enough enclaves of black neighborhoods.” 509 

U.S., at 635-636,113 S. Ct., at 2820-2821 (internal quotations 

omitted). Viewed without reference to District 12 under the 

1992 plan, the new District 12 is also “unusually shaped.” 

While its length has been shortened to approximately 95 miles, 

it still winds its way from Charlotte to Greensboro along the 

Interstate-85 corridor, making detours to pick up heavily 

African-Americanparts of cities such as Statesville, Salisbury, 

and Winston-Salem. It also connects communities not joined 

in a congressional district, other than in the unconstitutional 

1992 plan, since the whole of Western North Carolina was one 

district, nearly two hundred years ago. Pl.’s Brief Opp. Def.’s 

Mot. S.J., at 12. 

As noted above, where cities and counties are split . 

between District 12 and neighboring districts, the splits are 

exclusively along racial lines, and the parts of the divided cities 

and counties having a higher proportion of African-Americans 

are always included in District 12. Defendants argue that the 

Twelfth has been designed with politics and partisanship, not 

race, in mind. They describe the District as a “Democratic 

island in a Republican sea,” and present expert evidence that 

  

 



U
y
 

  

  

261a 

political identification was the predominant factor determining 
the border of District 12. Affidavit of David W. (“Peterson 
Aff”),at2. As the uncontroverted material facts demonstrate, 
however, the legislators excluded many heavily-Democratic 
precincts from District 12, even though those precincts immedi- 
ately border the District. The common thread woven through 
out the districting process is that the border of District 12 
meanders to include nearly all of the precincts with African- 
American population proportions of over forty percent which 
lie between Charlotte and Greensboro, inclusive. 

As noted above, objective measures of the compactness 
of District 12 under the 1997 plan reveal that it is still the most 
geographically scattered of North Carolina’s congressional 
districts. When compared to other previously challenged and 
reconstituted congressional districts in North Carolina, Florida, 
Georgia, Illinois, and Texas, District 12 does not fare well. The 
District’s dispersion and perimeter compactness indicators % 
(0.109 and 0.041, respectively) are lower than those values for 
North Carolina’s District 1 (0.317 and 0.107 under the 1997 
plan). Similarly, the District suffers in comparison to Florida’s 
District 3 (0.136 and 0.05), Georgia’s District 2 (0.541 and 
0.411) and District 11 (0.444 and 0.259), Illinois’ District 4 
(0.193 and 0.026), and Texas District 18 (0.335 and 0.151), 
District 29 (0.384 and 0.178), and District 30 (0.383 and 
0.180). 

Rule 56(c) of the Federal Rules of Civil Procedure 
provides that summary judgment shall be granted if there is no 
genuine issue as to any material fact and the moving party is



  

262a 

entitled to judgment as a matter of law. The moving party must 
demonstrate the lack of a genuine issue of fact for trial, and if 
that burden is met, the party opposing the motion must show 
evidence of a genuine factual dispute. Celotex Corp. v. Catrett, 
477 U.S. 317, 324, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 
(1986). 

Based on the uncontroverted material facts before it, 
the Court concludes that the General Assembly, in redistricting, 
used criteria with respect to District 12 that are facially race 
driven. District 12 was drawn to collect precincts with high 
racial identification rather than political identification. 
Further, the uncontroverted material facts demonstrate that 
precincts with higher partisan representation (that is, more 
heavily Democratic precincts) were bypassed in the drawing of 
District 12 and included in the surrounding congressional _ 
districts. The legislature disregarded traditional districting 
criteria such as contiguity, geographical integrity, community 
of interest, and compactness in drawing District 12 in North. | 
Carolina’s 1997 plan. Instead, the General Assembly utilized 
race as the predominant factor in drawing the District, thus 
violating the rights to equal protection guaranteed in the 
Constitution to the citizens of District 12.7 

To remedy these constitutional deficiencies, the North 
Carolina legislature must redraw the 1997 plan in such a way 

  

7 

congressional districts, race may not be used as a proxy for political characteristics. Vera v. Bush, 517 U.S. 952, > 116 8. Ct. 1941, 1956, 135 L. Ed. 2d 248 (1996). 

  

The Supreme Court has indicated that, when drawing  



  

263a 

that it avoids the deprivation of the voters’ equal protection rights not to be classified on the basis of race. This mandate of the Court leaves the Genera] Assembly free, within its author- ity, to use other, proper factors in redrawing the 1997 plan. Among these factors, the legislature may consider traditional districting criteria, including incumbency considerations, to the extent consistent with curing the constitutional defects. See Shaw II, 517 US.,at. 1168. Ct., at 1901 (describing “race- neutral, traditional districting criteria”). 

IL. First Congressional District 

Based on the record before us, the Plaintiff has failed to establish that there are no contested material issues of fact that would entitle Plaintiff to judgment as a matter of law as to District 1. The Court thus denies Plaintiffs’ Motion for Sum- mary Judgment as to that District. Conversely, neither has the Defendant established the absence of any contested material issue of fact with respect to the use of race as the predominant factor in the districting of District | such as would entitle Defendant to j udgment as a matter of law. 

CONCLUSION 

Based on the Order of this Court entered on April 3, 1998, and the foregoing analysis, Defendants will be allowed the opportunity to correct the constitutional defects in the 1997 Congressional Redistricting Plan, in default of which the Court would undertake the task. 

 



  

264a     This Memorandum Opinion, like the Order to which it 
refers, is entered by a majority of the three-judge panel. Circuit 
Judge Sam J. Ervin, III, dissents. 

This, the 14th day of April, 1998. 

TERRENCE W. BOYLE 
Chief United States District Judge 
RICHARD L. VOORHEES 
United States District Judge 

/s/ TERRENCE W, BOYLE 
Chief United States District Judge 

 



    : 265a 
OPINIONS OF UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA, APRIL 14, 1998 

[Caption Omitted in Printing] 

DISSENT 

In Shaw v. Reno, the Supreme Court recognized a new cause of action in voting rights law -- that state legislatures could not subordinate traditional districting principles to racial considerations in drawing legislative districts without trigger- ing strict scrutiny under the Equal Protection Clause of the Fourteenth Amendment, 509 U.S. 630 (1993) (“Shaw I) Because the districting plan before us is fundamentally differ- ent from the plans struck down by the Court in Shaw J and its progeny, see Miller v. Johnson, 515 U.S, 900 (1995); Shaw v. Hunt, 517 U.S. 899, 135 L. Ed. 2d 207 (1996) (“Shaw II 2; Bush v. Vera, 517 U.S. 952,135 L. Ed. 2d 248 (1996), 1 do not believe that the Plaintiffs have proven any violation of their right to the equal protection of the laws. 

ERVIN, Circuit Judge, dissenting: 

North Carolina’s twelfth congressional district is not a majority-minority district, it was not created as a result of strong-arming by the U.S. Department of Justice, and, contrary to the majority’s assertions, it is not so bizarre or unusual in shape that it cannot be explained by factors other than race. The Plaintiffs’ evidence is not SO convincing as to undermine the State’s contention that the 1997 Plan was motivated by a desire to remedy the constitutional violations from the 1997 

 



  

266a 

    Plan, to preserve the even split between Republicans and 
Democrats in the North Carolina congressional delegation, and 
to protect incumbents by drawing the districts so that each 
incumbent resides in a separate district. Our acceptance of the 
State’s proffered justifications, absent more rigorous proof by 
the Plaintiffs, is especially appropriate in this context, consider- 
ing the deference that we are bound to accord state legislative 
decisions in questions of redistricting. Finally, I find it 
inconsistent to decide, as the majority has done today, that the 
General Assembly, while engaging in a state-wide redistricting 
process, was impermissibly influenced by predominantly racial 
considerations in the drawing of one district (the twelfth) while 
evidencing no such unconstitutional predilection in the other 
district under challenge (the first), or for that matter, any of 
North Carolina’s other ten congressional districts. For these 
reasons, [ must respectfully dissent. 

In order to prevail on a race-predominance claim, the 
Plaintiffs must show “that race was the predominant factor 
motivating the legislature’s decision to place a significant 
number of voters within or without a particular district” 
Miller, 515 U.S. at 916. The principle that race cannot be the 
predominant factor in a legislature’s redistricting calculus is 
simple. Applying that principle, on the other hand, is quite 
complex, because numerous factors influence a legislature’s 
districting choices and no one factor may readily be identified 
as predominant. 

  

 



267a      In undertaking this analysis, it is crucial to note that in 
the matter of redistricting, courts owe substantial deference to 
the legislature, which is fulfilling “the most vital of local 
functions” and is entrusted with the “discretion to exercise the 
political judgment necessary to balance competing interests.” 
Miller, 515 U.S. at 915. We presume the legislature acted in 
good faith absent a sufficient showing to the contrary. Id. A 
state’s redistricting responsibility “should be accorded primacy 
to the extent possible when a federal court exercises remedial 
power.” Lawyer v. Department of Justice, 138 L. Ed. 2d 669, 
680 (1997). 

While the majority and I appear to be in agreement on 
those general principles, the majority does not discuss the 
extent of Plaintiffs’ burden in proving a claim of racial gerry- 
mandering. Concurring in Miller v. Johnson, Justice O’Connor 
emphasized that the plaintiff’sburden in cases of this kind must 
be especially rigorous: 

I understand the threshold standard the Court 
adopts . . . to be a demanding one. To invoke 
strict scrutiny, a plaintiff must show that the 
State has relied on race in substantial disregard 
of customary and traditional districting prac- 
tices.... [A]pplicationof the Court’s standard 
helps achieve Shaw’s basic objective of making 
extreme instances of gerrymandering subject to 
meaningful judicial review. 

 



  

268a 

Miller, 515 U.S. at 928-29 (O’Connor, J .» concurring) (empha- 
sis added). This principle was recently developed by a three- 
judge panel that upheld Ohio’s 1992 redistricting plan for its 
state legislature; 

As we apply the threshold analysis 
developed by the Supreme Court in Shaw cases, 
we are mindful of the dangers that a low thresh- 
old (easily invoking strict scrutiny) poses for 
states. We therefore follow Justice O’Connor’s 
lead in applying a demanding threshold that 
allows states some degree of latitude to con- 
sider race in drawing districts. 

Quilter v. Voinovich, 981 F. Supp. 1032, 1044 (N.D. Ohio 
1997), aff"d, 66 U.S.L.W. 3639 (U.S. Mar. 30, 1998) (No. 97- 
988). 

The Court has recognized that legislatures often have 
“mixed motives” -- they may intend to draw majority-minority 
districts as well as to protect incumbents or to accommodate 
other traditional interests. Bush v. Vera, 135 L. Ed. 2d at 257. 
In such a case, courts must review extremely carefully the 
evidence presented in order to determine whether an impermis- 
sible racial motive predominated. A determination that a state 
has relied on race in substantial disregard of customary and 
traditional districting practices will trigger strict scrutiny, 
though strict scrutiny does not apply merely because redistrict- 
ing is performed with consciousness of race. Jd Plaintiffs may 
show that race predominated either through direct evidence of 

  

 



  

  

269a 

legislative intent or through circumstantial evidence, such as the extremely contorted nature of a district’s shape and its racial demographics. Shaw I 135 L. Ed. 2d at 218-219; Miller, 515 U.S. at 916. 

The Plaintiffshave presented no direct evidence that the General Assembly’s intent was to draw district lines based on race. In contrast to the redistricting plans at issue in North Carolina in Shaw II, in Texas in Bush v. Vera, and in Georgia in Miller v, Johnson, the 1997 Plan was not drawn with an articulated desire to maximize minority voting participation. In order to succeed on Summary judgment, the Plaintiffs must therefore present circumstantial evidence that the State not only showed substantial disregard for traditional districting princi- ples, but that the predominant factor in the legislature’s decision to act as it did was race. 

II. 

The State has asserted that several criteria were more important than race in the General Assembly’s creation of the 1997 Redistricting Plan. The General Assembly drew the 1 997 Plan to remedy the constitutional violations in the 1992 Plan, to preserve North Carolina’s partisan balance of six Republi- cans and six Democrats, and to avoid placing two incumbents in the same district. See Defendants’ Br. in Support of Sum- mary Judgment at 4-7 (“Defendants’ Br. "). In order to grant Plaintiffs the relief they seek, they must prove that the state has substantially disregarded these proffered redistricting criteria, 

 



  

270a 

as well as other traditional districting criteria, in favor of race. 
I believe that the Plaintiffs have failed to meet this burden. 

First and foremost, the districts at issue here are not 
majority-minority districts.! I find it of utmost importance that 
only 43.36% of the voting-age population in District 12 is 
African-American. This fact immediately distinguishes this 
case from the line of Supreme Court cases that have struck 
down racial gerrymandering in North Carolina, Florida, 
Georgia, Louisiana, and Texas -- cases that define the equal 
protectioninquiry in this area. The Court itself recognized this 
distinction when it recently upheld a Florida state senate district 
that was not a majority-minority district. See Lawyer, 138 L. 
Ed. 2d at 680 (upholding state senate district with 36.2% black 
voting-age population); see also Quilter v. Voinovich, 66 
U.8.L.W. 3639 (U.S. Mar. 30, 1998) (No. 97-988) (affirming 
decision of three-judge panel that rejected a racial gerryman- 

  

The Supreme Court has not articulated whether a district is designated majority-minority by reference to voting-age population, by reference to overall population, or by reference to voter registration. 
Voting-age population would seem to be the appropriate benchmark. All people of voting age have the capacity to influence elections, whereas those under voting age obviously cannot. Counting only registered voters would potentially undercount those with the potential to influence elections. 

In District 12, 43.36% of the voting-age population is black, = 
while 46.67% of the total population is black. In District 1, 46.57% Of the 
voting-age population is black, while 50.27% of the total population is 
black. Under none of the possible criteria, then, can District 12 be 
considered a majority-minority district. District 1 can only be considered 
a majority-minority district with reference to total population. See 
Defendants’ Br. at 6. 

  

 



  

271a 

dering challenge to Ohio legislative districts that were not majority-minority). 

In its racial composition, District 12 is no different from every one of North Carolina’s other eleven congressional districts: the majority of the voting-age population in the district is white. While this may not be dispositive of the question whether race was the predominant factor in the legislature’s redistricting plan, the fact that all of North Carolina’s congressional districts are majority-white at the very least makes the Plaintiffs’ burden, which is already quite high, even more onerous, Had the legislature been predomi- nantly influenced by a desire to draw District 12 according to race, I suspect it would have created a district where more than 43% of the voting-age population was black. In part because District 12 is not a majority-minority district, I find no reason to credit the Plaintiffs’ contention that race was the predomi- nant factor in the legislature’s decisions. This is especially true considering that the legislature has proffered several compel- ling, non-racial factors for its decision. 

Second, this case is readily distinguishable from previous racial gerrymandering case because the plan at issue is not the result of North Carolina’s acquiescence to pressure from the U.S. Justice Department, acting under its Voting Rights Act preclearance authority. In previous cases in which the Court struck down challenged districts, the legislatures drew the challenged plans after their initial plans had been denied preclearance by the Department of Justice under its “black-maximization” policy. See Miller, 515U.8. at 921. For 

 



  

272a 

example, in Miller, the Court found that the creation of the 

unconstitutional district was in direct response to having had 

two previous plans denied preclearance by the Justice Depart- 

ment. See id. (“There is little doubt that the State’s true 

interest in designing the Eleventh District was creating a third 

majority-minority district to satisfy the Justice Department’s 

preclearance demands.”). In Shaw II, the Court recognized that 

North Carolina decided to draw two majority-minority districts 

in response to the Justice Department’s denial of preclearance 

to a previous plan. Shaw II, 135 L. Ed. 2d at 219 (noting that 

the “overriding purpose [of the redistricting plan] was to 

comply with the dictates of the Attorney General’s Dec. 18, 

1991 letter [denying preclearance to previous plan] and to 

create two congressional districts with effective black voting 

majorities”) (quotation omitted). 

In contrast, while the Department of Justice granted 

preclearance to the plan at issue in this case, the Department 

did not engage in the kind of browbeating that the Supreme 

Court has found offensive in previous racial gerrymandering 

cases. In the cases I have cited, the Court relied on this direct 

evidence, that the legislature was primarily motivated by race, 

to invoke strict scrutiny of the challenged districts. Unlike 

those cases, Plaintiffs have proffered neither direct nor circum- 

stantial evidence that the General Assembly was pressured by 

the Department of Justice to maximize minority participation 

when it redrew the congressional districts in 1997. In the 

absence of such evidence, I have little reason to believe that the 

State is less than candid in its averments to this court that race 

  

 



  

273a 

was not the predominant factor used by the legislature when 
crafting the 1997 redistricting plan. 

In reaching its decision, the majority has relied heavily 
on evidence that District 12 could have been drawn to include 
more precincts where a majority of registered voters ar 
Democrats, but that it was not so drawn, presumably for 
reasons that can be predominantly explained on no other basis 
but race. I cannot agree with the majority’s interpretation of 
the evidence. The Plaintiffs, and the maj ority opinion, provide 
anecdotal evidence that certain precincts that border District 12, 
but were not included in that district, have a high number of 
voters that are registered Democrats. See supra at 8-9. This 
evidence does not take into account, however, that voters often 
do not vote in accordance with their registered party affiliation. 
The State has argued, and I see no reason to discredit their 
uncontroverted assertions, that the district lines were drawn 
based on votes for Democratic candidates in actual elections, 
rather than the number of registered voters. See Affidavit of 
Senator Roy A. Cooper, III (“Cooper Aff”) 98 (“election 
results were the principal factor which determined the location 
and configuration of all districts”). 

The majority’s evidence also ignores the simple fact 
that the redistricting plan must comply with the equal protec- 
tion principle of “one person, one vote.” Every voter must go 
somewhere, yet all districts must remain relatively equal in 
population. Plaintiffs’ anecdotal evidence suggests that 
Democratic precincts could have been included in District 12 
in certain areas, had the district only been enlarged to include 

 



  

274a 

those places. By necessity, however, the district would need to 
have been reduced in size in other places in order to accommo- 
date the increase in the overall population in the district. Had 
the State drawn the lines in the manner that Plaintiffs’ evidence 
implies it should have, it appears that the State simply would 
have traded a Democratic precinct in one part of the district for 
a Democratic precinct in another part. Perhaps such line- 
drawing would have satisfied the Plaintiffs’ desire that District 
12 contain more than a 57% white majority, but I do not agree 
with the majority that the Constitution requires it. 

In contrast to Plaintiffs’ anecdotal evidence (which is 
presented in an affidavit by Plaintiffs’ counsel), the State has 
presented far more convincing evidence that race was not the 
predominant factor in the General Assembly’s decision to draw 
District 12 as it has been drawn. See Affidavit of Dr. David W. 
Peterson (“Peterson Aff”). In his statistical analysis, Professor 
Peterson traveled the entire circumference of District 12, 
looking at both the party affiliation and racial composition of 
the precincts on either side of the district line. Based on an 
analysis of the entire district, Professor Peterson concluded that 
“the path taken by the boundary of the Twelfth District can be 
attributed to political considerations with at least as much 
statistical certainty as it can be attributed to racial consider- 
ations.” Peterson Aff. 43. In other words, examining the entire 
circumference of District 12, rather than relying on Plaintiffs’ 
“pick and choose” examples, there is no statistical evidence to 
support the conclusion that race was the General Assembly’s 
primary motive in drawing District 12. 

  

 



   
275a 

  

Furthermore, the majority sees fit to ignore evidence demonstrating that not only did the le 
race 

  

gislature utilize traditional -neutral districting principles in drawing the Twelfth District’s lines, but that these principles predominated over any racial considerations, According to the Supreme Court, these “race-neutral” principles include, but are not limited to: @) Compactness, contiguity, respect for political subdivisions or communities of interest, and incumbency protection. See Bush Vv. Vera, 135 L. Ed. 2d at 260; Miller, 515 U.S. at 916. The majority would apparently add « 
list, although I am not clear wh 
See supra at 22. Regardless o 
however, the fact remains th 
heavily on these neutral princi 
the boundaries of District 12. 

    

       

  

       

       

       

       geographical integrity” to this 
at exactly they mean by that? 
f what is included on the list, 

at the legislature relied more 
ples than on race when it chose 

   

   
      

      

      

        
The compactness of District 12 is, admittedly, 

tially less than what has been deemed to be “ideal” and is the Ww least compact of all of North Carolina’s twelve congressional districts. See Supra at 11 (citing Pildes & Niemi “compactness factors”). Some district, however, must inevitably be the least compact; that fact alone therefore is not dispositive. And because District 12 reflects the paths of major interstate highway corridors which make travel within the district extremely easy, it has a type of “functional compactness” that 

substan-    
     

  

            

        

     
       

  

 



  

276a 

is not necessarily reflected by the Pildes & Niemi factors. In 
addition, District 12 as it currently stands is contiguous. 
Contrary to the majority’s allusions to “narrow corridors,” see 
supra at 7, the width of the district is roughly equal throughout 
its length, see Affidavit of Dr. Gerald R. Webster tbl. 1. 

District 12 also was designed to join a clearly defined 
“community of interest” that has sprung up among the inner- 
cities and along the more urban areas abutting the interstate 
highways that are the backbone of the district. I do not see how 
anyone can argue that the citizens of, for example, the inner- 

  

   

city of Charlotte do not have more in common with citizens of 
the inner-cities of Statesville and Winston-Salem than with 
their fellow Mecklenburg county citizens who happen to reside 
in suburban or rural areas. 

The tricky business of drawing borders to protect 
incumbents also required the legislature to draw District 12in 
the way it did. District 12 had to be drawn in a manner that 
avoided placing both Congressman Burr’s and Coble’s resi- 
dences inside the district, excluded Cabarrus County, where 
Congressman Hefner resides, and still provided enough 
Democratic votes to protect incumbent Congressman Watt's 
seat. See Cooper Aff. §10. 

What I find to be the predominating factors in drawing 
the 1997 Plan, however, were the legislature’s desire to 
maintain the 6-6 partisan balance in the House and to protect 
incumbents. See Cooper Aff. q 8 (stating maintaining partisan 
balance was the principal factor driving redistricting). These 

  

 



  

277a 

are legitimate interests which have been upheld by the Supreme Court in previous voting rights cases, see, e.g., Bush v. Vera, 135 L. Ed. 2d at 260-61, and were Proper concerns for the legislature here. As | noted before, the majority’s decision to look only at the percentage of registered Democrats in analyz- ing the district’s borders ignores the fact that registercd) Democrats are not compelled to vote for Democratic candidates and often do not. In drawing District 12, therefore, the legisla- ture did not consider merely the number of registered Demo- Crats, rather it looked also to the history of recent voting patterns in an attempt to design the districts to ensure that the partisan balance would remain stable. See Cooper Aff. { 8; Peterson Aff, 121. 

Finally, I find it highly unlikely, as the majority has found today, that the General Assembly acted with predomi- nantly racial motives in jts drawing of District 12, but did not act with the same motive in its drawing of District 1. The General Assembly considered the 1997 Redistricting Plan as a single, statewide proposal, and it makes little sense to me that the General Assembly would have been animated by predomi- nantly racial motives with respect to the Twelfth District and not the First. This inconsistency is even more apparent when one considers that the legislature placed more African-Ameri- cans in District 1 (46.54% of the voting-age population) than in District 12. Since we all agree that the Plaintiffs have failed to prove any equal protection violation with respect to the legislature’s decision in drawing District 1, I find it unlikely that Plaintiffs’ proof would demonstrate otherwise with regard to other aspects of the same redistricting plan.  



  

278a 

III. 

Not only do I disagree with the majority in their holding 
the Twelfth District unconstitutional, I believe that -- even if 

the Twelfth District is unconstitutional -- they are in error in 

enjoining the current election process, which is already 

substantially underway. The rationale for allowing electionsto 

proceed after a court has declared them to be constitutionally 

infirm has been clearly articulated by the Supreme Court in 

Reynolds v. Sims, 377 U.S. 533, 585 (1964): 

[O]nce a State’s legislative apportionment 

scheme has been found to be unconstitutional, 

it would be the unusual case in which a court 

would be justified in not taking appropriate 

action to insure that no further elections are 

conducted under the invalid plan. However, 

under 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 in 

withholding the granting of immediately effec- 

tive relief in a legislative apportionment case, 

even though the existing apportionment scheme 

was found invalid. In awarding or withholding 

immediate relief, a court is entitled to and 

should consider the proximity of a forthcoming 

election and the mechanics and complexities of 

state election laws, and should act and rely 

upon general equitable principles. With respect 

  

 



  

279a 

to the timing of relief, a court can reasonably 
endeavor to avoid a disruption of the election 
process which might result from requiring 
precipitate changes that could make unreason- 
able or embarrassing demands on a State in 
adjusting to the requirements of the court’s 
decree. 

Weighing the equities here, it is clear that this is one of the 
“unusual” cases contemplated by Reynolds v. Sims and there- 
fore an injunction should not be issued at this point in the 
election cycle. 

On January 30, 1998, when the Plaintiffs filed their 
motion for a preliminary injunction to these elections, the 
deadline for candidates to file for the primary elections was 
only four days away. Voters had already contributed over $3 
million to the congressional candidates of their choice, and the 
candidates themselves had spent approximately $1.5 million on 
their campaigns. See Second Affidavit of Gary O. Bartlett 
(“Bartlett Second Aff”) 14 (giving figures for the period 
from July 1 to December 31 , 1997). Ballots have already been 
prepared, printed, and distributed. Absentee balloting for the 
primary elections began on March 16, 1998 and undoubtedly 
some voters have already cast their votes. The primary 
elections themselves are scheduled for May 5, only a few short 
weeks away. This court’s injunction therefore wreaks havoc on 
an electoral process that is in full swing. 

 



  

280a 

An injunction puts the North Carolina legislature on the 
horns of a dilemma. It may choose to run the May 1998 
elections as scheduled for everything but the congressional 
primaries, and then spend millions of dollars scheduling a 
separate election for the congressional primaries’ -- an election ; 
for which few people are likely to make a special trip to the 
election booth. Or the State may decide to spend millions of 
dollars to reschedule the entire May election and affect hun- 
dreds of races for offices throughout the State. Forcing the 
State to choose between these two equally unpalatable choices 
is unreasonable. 

In addition, the injunction will disrupt candidates’ 
campaigning and voter contributions to those campaigns. 
Redrawing the Twelfth District’s boundaries will inevitably 
change the boundaries of the surrounding districts, and the 

ripple effects of this redrawing may well affect many other 
districts in the State, as happened when the 1997 Plan sup- 
planted the 1992 Plan. Congressional candidates cannot be . 
certain whom they will represent or who their opponents will ~~ 
be until the districts are redrawn. Voters likewise will be 
unsure whether the candidates of their choice will end up in 
their district. Not only will contributions to candidates and 
campaigning by candidates be slowed, if not halted, while the 
redistricting takes place, but once the redistricting is completed, 
candidates and voters will have scant time to become ac- _ 
quainted with each other before elections take place. See 

  

3 

said to be $4,300,000. See Bartlett Second Aff. 9 13. 

  

The cost of a single, statewide election, primary or general, is  



  

281a 

McKee v. James, CV-97-C-2078-W (N.D. Ala. March 24, 
1998) (refusing to enjoin elections even though qualifying date 
for primary had not yet passed because “[sJome energy is 
already invested; some persons have declared their candidacy 
to represent a certain districts. . . Even if redistricting were 
carried out today, it would disturb the expectations of candi- 
dates and their Supporters, and it would disrupt the state’s 
conduct of the primaries.”); Smith v. Beasley, 946 F. Supp. 
1174, 1212 (D.S.C. 1996) (refusing to issue injunction six 
weeks before general election when “[c]andidates have already 
spent significant time and money campaigning, and voters have 
begun to familiarize themselves with the candidates” because 
delay would disrupt elections unnecessarily and confuse 
voters). Accord Vera v, Richards, 861 F. Supp. 1304, 1351 
(S.D. Tex. 1994), affirmed sub nom. Bush v. Vera, 135 L. Ed. 
2d 245 (1996) (finding congressional districts unconstitutional 
eleven weeks before general elections but allowing them to 
proceed under unconstitutional apportionment plan). This will 
negatively affect the quality of the representation that citizens 
of North Carolina receive in Congress, and counsels against 
upsetting the current elections. 

IV. 

In its opinion, the majority concludes that neither the 
Plaintiffs nor the State has established the absence of a genuine 
issue of material fact that would entitle either party to Judgment 
as a matter of law. See supra at 22-23. believe that all 
material facts concerning the First District are uncontroverted-- 
this panel received the same evidence concerning District 1 as 

 



  

282a 

it did for District 12. If summary judgment is appropriate for 
District 12. I see no reason why District 1’s constitutionality 
cannot be decided on summary judgment as well. The maj ority 
is simply wrong to require the State to establish the absence of 
an issue of material fact. See Celotex Corp. v. Catrett, 477 
U.S. 317,325 (1986) (“[ W]e do not think . . . that the burden is 
on the party moving for summary judgment to produce 
evidence showing the absence of a genuine issue of material 
fact... .”). Because I believe that the Plaintiffs have failed to 
demonstrate that the First Congressional District under the 
1997 Congressional Restricting [sic] Plan is an unconstitutional 
classification based on race, I would grant the State’s motion 
for summary judgment. 

¥. 

I agree with the majority that Plaintiffs have failed to meet 
their burden on summary judgment as to District 1, although I 
would go further and grant the State’s motion for summary 
judgment as to this district. I dissent from the majority’s 
decision granting the Plaintiffs’ motion for summary judgment 
on District 12, and enjoining elections under the 1997 Plan. 
For the reasons stated above, [ would grant the State’s motion 
for summary judgment, finding that Plaintiffs have not proven 
a violation of their right to equal protection of the laws. 

  

 



283a 
SHAW, SECOND AMENDED COMPLAINT FOR PRELIMINARY 
AND PERMANENT INJUNCTION, JULY 9, 1996 

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF NORTH CAROLINA 

RALEIGH DIVISION 
CIVIL ACTION NO. 92-202-CIV-5-BR RB 

RUTH O. SHAW, MELVIN G. SHIMM, 
ROBINSON O. EVERETT, JAMES M. 
EVERETT, DOROTHY G. BULLOCK, 
MARTIN CROMARTIE, THOMAS 
CHANDLER MUSE, and GLENNES 
DODGE WEEKS, 

Plaintiffs, 

) 
) 
) 
) 
) 
) 
) 
) 
) 

JAIVES ARTHUR “ART” POPE, ) 
BETTY S. JUSTICE, DORIS LIL, JOYCE ) 
LAWING, NAT SWANSON, RICK ) 
WOODRUFF, J. RALPH HIXSON, ) 
AUDREY McBANE, SIM DELAPP, JR., ) 
RICHARD SAHLIE, HOWARD B, ) 
SMITH, HM. “TED” TYLER, FERRELL ) 
L. BLOUNT, III, H. HOWARD ) 
DANIELEY, ANTHONY G. POSEY, ) 
and RACHEL NANCE RUMLEY ) 

) 
) 
) 

Plaintiff-Intervenors,   
 



  

284a 

V. 

GOVERNOR JAMES B. HUNT, in his 
official capacity as Governor of the State of 
North Carolina; DENNIS A. WICKER, in 
his official capacity as Lieutenant Governor 
of the State of North Carolina and President 
of the Senate; HAROLD J. BRUBAKER, 
in his official capacity as Speaker of the 
North Carolina House of Representatives; 
JANICE FAULKNER, in her official 
capacity as Secretary of the State of 
North Carolina; THE NORTH CAROLINA 
STATE BOARD OF ELECTIONS, 
an official agency of the State of North 
Carolina; EDWARD J. HIGH, in his 
official capacity as Chairman of the North 
Carolina State Board of Elections; JEAN H. 
NELSON, LARRY LEAKE, DOROTHY 
(DOT) PRESSER, and JUNE K. 

- YOUNGBLOOD, in their official capacities 
as members of the North Carolina State 
Board of Elections, 

Defendants, 

RALPH GINGLES, VIRGINIA 
NEWELL, GEORGE SIMKINS, N.A. 
SMITH, RON LEEPER, ALFRED 
SMALLWOOD, DR. OSCAR BLANKS, 

  

 



285a 

REV. DAVID MOORE, ROBERT L.. ) 
DAVIS, C.R. WARD, JERRY ADAMS, ) 
JAN VALDER, BERNARD OFFERMAN, ) 
JENNIFER McGOVERN, CHARLES ) LAMBETH, ELLEN EMERSON, ) 
LAVONIA ALLISON, GEORGE ) 
KNIGHT, LETO COPELEY, WOODY ) 

) 

) 
) 

) 

) 

) 

CONNETTE, ROBERTA WADDLE and 
WILLIAM M. HODGES, 

Defendant- 

Intervenors. 

) 
SECOND AMENDED COMPLAINT FOR PRELIMINARY AND 
PERMANENT INJUNCTION 

        
  

Plaintiffs and plaintiff-intervenors file this second @ Amended Complaint in the above-captioned action for 
declaratory and preliminary and permanent injunctive relief 
against the defendants to challenge and prevent further 
implementation of the State of North Carolina's redistricting 
statute. This action is based on the claim originally filed by the 
plaintiffs on March 12, 1992, upheld by the Supreme Court in Shaw v. Reno, 113 S.Ct. 2816 (1993), and in Shaw v. Hunt, 
1996 U.S. LEXIS 3880 (U.S. June, 13, 1996). 

JURISDICTION AND VENUE   
 



  

286a 

1. This action arises under Article], §§ 2 and 4 and 

the Fourteenth and Fifteenth Amendments of the Constitution 

of the United States, 42 U.S.C. §§ 1981, 1983, and 1988, and . 

2US.C. §2 . 

2. This court has original jurisdiction of this action 

pursuant to 28 U.S.C. §§ 1331, 1343(3) and (4), and 2284. > 

3. Venue is proper in this district under 28 U.S.C. _ 

§ 1391(b). 

THREE-JUDGE DISTRICT COURT 

4. A three-judge district court has been properly 

convened in this action under 28 U.S.C. § 2284 because this 

action challenges the constitutionality of the statewide 

apportionment of congressional districts for the State of North 

Carolina. - 

5. Plaintiffs and plaintiff-intervenorsallege that the 
North Carolina legislature purposely and intentionally 

classified and discriminated among the voters of North 

Carolina on the basis of race and in doing so violated the rights 

of the plaintiffs and plaintiff-intervenors guaranteed by the . 

Fourteenth and Fifteenth Amendments. The defendants have 

enforced this unconstitutional law against the plaintiffs and 

plaintiff-intervenors and all of the citizens of North Carolina. 

6. The Supreme Court concluded in Shaw v. Hunt, 

1996 U.S. LEXIS 3880 (U.S. June 13, 1996), that the North ~ 

Carolina redistricting statute, and in particular the Twelfth 

District, is constitutionally invalid. This action seeks a 

declaration that the First Districtis also constitutionallyinvalid. 

This action also seeks a preliminary and permanent injunction 

  

 



287a 

against enforcement of the redistricting statute for the 1996 

election, and other equitable relief as the court deems 

appropriate. 

PARTIES 

7 Plaintiff Ruth O. Shaw is a registered voter and ® 

a resident of the Twelfth Congressional District of the State of 

North Carolina. She is a resident of Durham County. The 

North Carolina redistricting statute harms Ms. Shaw because it 

classifies her and other registered voters in District Twelve on 

the basis of race, and she has been classified in, or excluded 

from, particular congressional districts on the basis of race. 

8. Plaintiff Melvin G. Shimm is a registered voter 

and a resident of the Twelfth Congressional District of the State 

of North Carolina. He is a resident of Durham County. The 

North Carolina redistricting statute harms Mr. Shimm because 

it classifies him and other registered voters in District Twelve 

on the basis of race, and he has been classified in, or excluded 

from, particular congressional districts on the basis of race. 

9. Plaintiff Robinson O. Everett is a registered 

voter and a resident of the Second Congressional District of the 

State of North Carolina. He is a resident of Durham County. 

The North Carolina redistricting statute harms Mr. Everett 

because it classifies him and other registered voters in District 

Two on the basis of race, and he has been classified in, or 

excluded from, particular congressional districts on the basis of 

race. 

10. Dorothy G. Bullock is a registered voter and a 
resident of the Second Congressional District of the State of   
 



  

288a 

North Carolina. She is a resident of Durham County. The 

North Carolina redistricting statute harms Ms. Bullock because 

it classifies her and other registered voters in District Twoon =~ 

the basis of race, and she has been classified in, or excluded 
from, particular congressional districts on the basis of race. 

11. Plaintiff James M. Everett registered to vote 

after the 1992 redistricting statute had been adopted in North 

Carolina and is currently a registered voter in the Second 

Congressional District. He is a resident of Durham County. 

The North Carolina redistricting statute harms Mr. Everett 

because it classifies him and other registered voters in District 

Two on the basis of race. 

12. Plaintiff-intervenor James Arthur "Art" Pope 

was and is a registered voter and resident of Wake County and 

a member of the Republican Party. As a result of the 1992 

redistricting statute, Mr. Pope was placed in the Fourth 

Congressional District. Plaintiff-intervenor Betty S. Justice 

was and is a resident of Rutherford County and a member of 

the Republican Party. As a result of the 1992 redistricting 

statute, Ms. Justice was placed in the Tenth Congressional . 

District. The North Carolina redistricting statute harms Mr. 

Pope and Ms. Justice because it classifies them and other 

registered voters on the basis of race, and they have been : 

included in, or excluded from, particular congressional districts ~~ 

on the basis of race. 

13; Plaintiff-intervenor Doris Lil was and is a 

resident of Lincoln County and a member of the Republican 

party. As a result of the 1992 redistricting, Ms. Lil now resides . 

in the Tenth Congressional District. Plaintiff-intervenor Joyce 

Lawing was and is a resident of Caldwell County and a 

  

 



  

289a 

member of the Republican party. As a result of the 1992 
redistricting, Ms. Lawing now resides in the Tenth 
Congressional District. The North Carolina redistricting statute 
harms Ms. Lil and Ms. Lawing because it classifies them and 
other registered voters on the basis of race, and they have been 
included in, or excluded from, particular congressional districts 
on the basis of race. 

14, Plaintiff-intervenor Nat Swanson was and is a 
resident of Forsyth County and a member of the Republican 
party. As a result of the 1992 redistricting, Mr. Swanson now 
resides in the Tenth Congressional District. Plaintiff-intervenor 
Rick Woodruff was and is a resident of Wilkes County and a 
member of the Republican party. As a result of the 1992 
redistricting, Mr. Woodruff now resides in the Tenth 
Congressional District. The North Carolina redistricting statute 
harms Mr. Swanson and Mr. Woodruff because it classifies 
them and other registered voters on the basis of race, and they 
have been included in, or excluded from, particular 
congressional districts on the basis of race. 

15. Plaintiff-intervenor J. Ralph Hixson was and is 
a resident of Guilford County and a member of the Republican 
party. As a result of the 1992 redistricting, Mr. Hixson now 
resides in the Sixth Congressional District. Plaintiff-intervenor 
Audrey McBane was and is a resident of Alamance County and 
a member of the Republican party. As a result of the 1992 
redistricting, Ms. McBane now resides in the Sixth 
Congressional District. The North Carolina redistricting statute 
harms Mr. Hixson and Ms. McBane because it classifies them 
and other registered voters on the basis of race, and they have 

 



  

290a 

been included in, or excluded from, particular congressional 

districts on the basis of race. | 

16.  Plaintiff-intervenor Sim Delapp, Jr. was and is 

a resident of Davidson County and a member of the Republican 
_ party. As a result of the 1992 redistricting, Mr. Delapp now 
resides in the Sixth Congressional District. Plaintiff-intervenor 

Richard Sahlie was and is a resident of Mecklenburg County 

and a member of the Republican party. As a result of the 1992 

redistricting, Mr. Sahlie now resides in the Ninth Congressional 

District. The North Carolina redistricting statute harms Mr. 

Delapp and Mr. Sahlie because it classifies them and other 

registered voters on the basis of race, and they have been 

included in, or excluded from, particular congressional districts 

on the basis of race. 

17. Plaintiff-intervenor Howard B. Smith is a 

registered voter, a Republican, and a resident of the First 

Congressional District of the State of North Carolina. Heisa 

resident of Warren County. Prior to the 1992 congressional 

redistricting, Mr. Smith was registered to vote in the Second 

Congressional District. Mr. Smith is also the Republican Party 

chairman of the First District. The North Carolina redistricting 

statute harms Mr. Smith because it classifies him and other 

registered voters in District 1 on the basis of race, and he has 

been included in, or excluded from, particular congressional 

districts on the basis of race. 

18.  Plaintiff-intervenor HM. “Ted” Tyler is a 

registered voter, a resident of Northhampton County, and a 

member of the Republican Party. Prior to the 1992 

congressional redistricting, Mr. Tyler was registered to vote in 

the First Congressional District. As a result of the 1992 

  

 



  

291a 

redistricting, Mr. Tyler now resides in the First Congressional 
District. Mr. Tyler is the current nominee for the Republican 
Party for the House of Representatives from the First District. 
Mr. Tyler is injured because he and other North Carolina 
voters, including voters in District 1, have been classified by 
race and have been included in, or excluded from, particular 
congressional districts on the basis of race. 

19.  Plaintiff-intervenor Ferrell L. Blount, III is a 
registered voter, a resident of Pitt County, and a member of the 
Republican Party. Prior to the 1992 congressional redistricting, 
Mr. Blount was a registered voter in the First Congressional 
District. As a result of the 1992 redistricting, Mr. Blount now 
resides in the First Congressional District. Mr. Blount is 
injured because he and other North Carolina voters, including 
voters in District 1, have been classified by race and have been 
included in, or excluded from, particular congressional districts 
on the basis of race. 

20. Plaintiff-intervenor H. Howard Danieley is a 
registered voter, a resident of Alamance County, and a member 
of the Republican Party. Prior to the 1992 congressional 
redistricting, Mr. Danieley was registered to vote in the Sixth 
Congressional District. As a result of the 1992 redistricting, 
Mr. Danieley now resides in the Twelfth Congressional 
District. Mr. Danieley is injured because he and other North 
Carolina voters, including voters in District 12, have been 
classified by race and have been included in, or excluded from, 
particular congressional districts on the basis of race. 

21. Plaintiff-intervenor Anthony G. Posey is a 
registered voter, a resident of Guilford County, and a member 
of the Republican Party. Prior to the 1992 congressional 

 



    

292a 

    

   

    

  

    

   

    

    

    

  

    

    

   

    

redistricting, Mr. Posey was registered to vote in the Sixth 

Congressional District. As a result of the 1992 redistrictin; 

Mr. Posey now resides in the Twelfth Congressional Distrie 

Mr. Posey is injured because he and other North Carolina 

voters, including voters in District 12, have been classified > 

race and have been included in, or excluded from, ‘particul 

congressional districts on the basis of race. 

22. Plaintiff-intervenor Rachel Nance Rumley’ 

registered voter, a resident of Guilford County, and a mem ) 

of the Republican Party. Prior to the 1992 congressional 

redistricting, Ms. Rumley was registered to vote in the Sixth 

Congressional District. As a result of the 1992 redistricting, 

Ms. Rumley now resides in the Twelfth Congressional District. 

Ms. Rumley is injured because she and other North Carolina 

voters, including voters in District 12, have been classified by 

race and have been included in, or excluded from, particular 

congressional districts on the basis of race. ~ 

23. As part of the manipulation of 229,000 census 

blocks, each plaintiff was assigned to his or her current 

congressional district and personally subjected to a racial 

classification. Each was personally injured by being placed in 

a district which was dysfunctional because it was not drawn 

according to traditional and accepted race-neutral principles 

  

such as geographic compactness, contiguousness, and 

communities of interest. Such principles facilitate political 

interaction and political representation. 

24. Defendant James B. Hunt is the Governorin and 

for the State of North Carolina and, in such capacity, he isthe 

Chief Executive Officer of the State charged with the duty of . 

enforcing compliance with State legislation under Article II, 

 



293a 

Section 5(4) of the Constitution of North Carolina. Moreover, 

it is the Governor’s's duty to issue a commission to a person 

elected to the United States House of Representativesupon that 

person's production to the Governor a certificate of his election 

from the Secretary of State, pursuant to N.C. Gen. Stat. § 163- 

194. He is sued in his official capacity. 

25, Defendant Dennis A. Wicker is the Lieutenan@) 

Governor of North Carolina and, as part of his official duties, 

presides over the North Carolina Senate and certifies certain 

actions of the Senate. He is sued in his official capacity. 

26. Defendant Harold J. Brubaker, is the Speaker of 

the North Carolina House of Representatives. In this capacity 

he presides over that body and certifies certain actions taken by 

the House of Representatives. He is sued in his official 

capacity. 

29. Defendant Janice Faulkner, Secretary of State of 

North Carolina, is charged with preparing a certificate of 

election for each person elected after the Board of Elections 

certifies the results to her, pursuant to N.C. Gen. Stat. § 163 

193. She is sued in her official capacity. 

28. Defendant North Carolina State Board of 

Elections is an official agency of the State of North Carolina 

and has general supervisory authority over the primaries and 

elections in North Carolina, including elections for the U.S. 

House of Representatives, with the authority to promulgate 

rules and regulations for the conduct of elections, pursuant to 

N.C. Gen. Stat. §163-22. 

29. Defendants Edward J. High, Jean H. Nelson, 

Larry Leake, Dorothy (Dot) Presser, and Jean K. Youngblood 

are members of the North Carolina Board of Elections.   
 



  

2943 

Defendant Edward J. High is the Chairman of the Board. All of said defendants are charged with exercising the powers and duties of the State Board of Elections pursuant to N.C, Gen. Stat. § 163-22. These defendants are all sued in their official capacity. 
| 

30. Pursuant to this court's order of September 7. 1993, Ralph Gingles, Virginia Newell, George Simkins, N.A., Smith, Ron Leeper, Alfred Smallwood, Dr. Oscar Blanks, Rev. David Moore, Robert I. Davis, C.R. Ward, Jerry Adams, Jan Valder, Bernard Offerman, Jennifer McGovern, Charles Lambeth, Ellen Emerson, Lavonia Allison, George Knight, Leto Copeley, Woody Connetts, Roberta Waddle, and William 
M. Hodges were permitted to participate in this action as 
defendant-intervenors. 

1992 CONGRESSIONAL REDISTRICTING 

31. Pursuant to the results of the 1980 decennial census, the State of North Carolina was entitled to eleven - members in the United States House of Representatives. Because of the substantial population increase recorded by the 1990 decennial census, North Carolina is now entitled to an additional member in the United States House of Representatives, Thus, the size of the State's Congressional delegation has increased from eleven to twelve members pursuant to 2 U.S.C. § 2. 
| 

32. The increase in the size of the State's population and Congressional delegation required the State of North . Carolina to redistrict the State's Congressional districts, so that each of the twelve Congressional Districts would have equality 

  

 



  

a a 

295a 

in population. To this end, on July 9, 1991, the General Assembly enacted redistricting legislation known as Chapter 601 of the North Carolina Sessions Laws of 1991 (“Chapter 601”), 

33. Because portions of the State of North Carolina are subject to the pre-clearance procedures of § S of the Voting Rights Act, Chapter 601 could not take effect and was unenforceable, unless and until the Attorney General of the United States pre-cleared Chapter 601 or failed to object to the Chapter 601 within a prescribed time after jts submission to him. 

34. The State of North Carolina submitted Chapter 601 to the Attorney General for pre-clearance pursuant to the Voting Rights Act. 
35. On December 18, 1991, the Attorney General, acting through his subordinate in the United States Department of Justice, objected to Chapter 601 and refused pre-clearance. The basis for denying pre-clearance was that North Carolina had failed to create two congressional districts containing a majority of minorities and voters in order to better assure that in each district an African-American person would be elected to Congress. By denying pre-clearance on this basis, the Attorney General exceeded any authority he was entitled to exercise under any constitutionally proper interpretation of the Voting Rights Act, as has now been decided by the Supreme Court in Miller v, Johnson, 115 S.Ct, 2475 (1995), and Shaw v. Hunt, supra, 

36. Because of the objection that had been made by the Attorney General, the General Assembly of North Carolina, convened in special session and enacted Chapter 7 (1991 Extra 

 



  

296a 

Session) (hereinafter “Chapter 7”), which provides for the 
redistricting of congressional districts and an increase from 
eleven to twelve congressional districts. 

37. In enacting Chapter 7, race was the predominant 
motive of the General Assembly in placing a significant 
number of voters within or without particular districts, as was 
reflected in its own record of proceedings and otherwise. 
Indeed, the U.S. Supreme Court already has concluded that race 
was the predominant factor motivating the General Assembly's 
decision to place a significant number of voters within or 
without the Twelfth District. See Shaw v. Hunt, supra. 
Notably, the drafters of the plan relied upon computer 
technology to group 229,000 census blocks in accord with race, 
so that census blocks with a predominately black population 
would be clustered together and these clusters would be 
connected with strings of census blocks with a predominately 
white population. Thus, the drafters could create an Afiican- 
American majority in two districts, and the election of an 
African-American representative could be assured in these 
districts. No socioeconomic data other than race and age of 
population was available in the computer base for use in 
drawing the districts. 

38. In Chapter 601, the First Congressional District 
had been drawn with the predominant and overriding purpose 
of creating a majority-black district and racially neutral and 
traditional redistricting principles were subordinated to this 
purpose and motive. In Chapter 7, the same purpose existed 
but the First District was even more “bizarre” and was formed 
with an ever greater disregard of neutral and traditional 
redistricting principles. It contained “double crossovers”, 

  

   



      

297a 

reached from the Virginia line almost to South Carolina, split many counties, cities and towns, and precincts, and used corridors of white “filler people” to connect concentrations of African-Americans in the center of Fayetteville, Wilmington, Greenville and other towns with predominately African- American rural areas. 
39. Chapter 7 was submitted to the Attorney General for pre-clearance. The Attorney General entered no objection to Chapter 7. 
40. Subsequently, on F ebruary 28, 1992, an action was filed against State officials by various plaintiffs objecting to Chapter 7 on several grounds. (See Pope et al. v. Blye et al., 

Civil Action No. 3:92CV71-P, United States District Court, Western District of North Carolina, Charlotte Division.) Those grounds are distinct from the basis for this action. The present plaintiffs in no way adopt or incorporate the contentions made by the plaintiffs in that action, which was dismissed. 
41. Initially, the three-judge district court granted defendants’ motion to dismiss plaintiffs’ complaint, See Shaw v. Barr, 808 F Supp. 461 (E.D.N.C. 1992). The plaintiffs appealed to the Supreme Court. 
42. On June 28, 1993, the Supreme Court reversed the district court, and remanded for further proceedings in light of its decision. See Shaw v. Reno, 113 S.Ct. 2816 (1993). 
43. On November 3, 1993, the court granted in part and denied in part plaintiff-intervenors’ motion to intervene pursuant, infer alia, to Rule 24(b) of the Federal Rules of Civil Procedure. The court granted the motion of those Republican applicants who were registered voters of the State of North Carolina for permission to intervene. The court denjed the 

 



  

298a 

motion of those Republican applicants who were not registered | 

voters of the State of North Carolina for permission to 

intervene pursuant to Fed. R. Civ. P. 24(b), i.e., the Republican 

Party of North Carolina and Jack Hawke, in his official 

capacity as the Chairman of the Party. 

44. Discovery commenced and a trial was held. 

45. On August 1, 1994, a three judge district court 

entered its judgment upholding the North Carolina redistricting 

statute and rejecting plaintiffs and plaintiff-intervenors’ 

challenge to Chapter 7 pursuant to the Equal Protection Clause 

of the Fourteenth Amendment. See Shaw v. Hunt, 861 F.Supp. 

408 (E.D.N.C. 1994). Chief Judge Voorhees dissented. 

46. The plaintiffs and plaintiff-intervenors filed 

timely appeals to the United States Supreme Court. On June 

13, 1996, the United States Supreme Court held “that the North 

Carolina [congressional distracting] plan . . . violate[s] the 

Equal Protection Clause because the State's reapportionment 

scheme is not narrowly tailored to serve compelling state 

interest.” Shaw v. Hunt, slip op. at 1. 

47. In reaching this conclusion, the court held that 

race was the predominant factor motivating the legislature’s 

decision to place a significant number of voters within or 

without District 12. See slip op. at 5-6. The Supreme Court 

noted that the district court had direct evidence of legislature’s 

objective as well as indirect evidence based upon the district’s 

shape and demographics. “Here, as in Miller, we fail to see 

how the district court could have reached any conclusion other 

than that race was the predominant factor in drawing [the 

challenged district].” See slip op. at 6 (quotations omitted). 

Accordingly, North Carolina, “therefore, must show not only 

  

 



299a 

that its redistricting plan was in pursuit of a compelling State 
interest, but also that its districting legislation is narrowly 
tailored to achieve [that] compelling interest.” Slip op. at 8. 
(quotations omitted). 

48. The Supreme Court then assessed and rejected 
defendants’ claims that three separate compelling state interests R 
justified District 12: to eradicate the effects of past and present 
discrimination; to comply with Section 5 of the Voting Rights 
Act; and to comply with Section 2 of that Act. 

COUNT I 

49, The preceding allegations of this complaint are 
incorporated by reference and realleged. 

50. The plaintiffs and plaintiff-intervenors, as 
citizens and residents of the State of North Carolina, are part of 
its “people”; and as registered voters in the State, they have, 
under Article I, § 2 of the Constitution, a right to choose 
members of Congress. Under Article 1, § 4, this right is subject 
to control by Congress and the federal government only to a 
limited extent and not in the manner in which the Attorney 
General has interpreted the Voting Rights Act. 

51; The right of the plaintiffs and plaintiff- 
intervenors to vote for members of the House of 
Representativesis a right for which the plaintiffs and plaintiff- 
intervenors are entitled to the “equal protection of the laws”, 
with respect to any action taken by the State of North Carolina. 
Moreover, this right to vote for members of the House of 
Representatives of the United States is a “privilege” of citizens 
of the United States within the meaning of the Fourteenth   
 



  

300a 

Amendment and is protected by that amendment from being 

abridged by the State of North Carolina. The right of the 

plaintiffs and plaintiff-intervenors as citizens of the United 

States to vote for members of the House of Representatives is 

also protected by the Fifteenth Amendment against being 

“abridged” by the State of North Carolina on account of the 

race or color of the plaintiffs and plaintiff-intervenors. > 

52. Any action by officers of the State of North 

Carolina which discriminates on the basis of race or color 

violates this right of plaintiffs and plaintiff-intervenors to vote 

for members of Congress, denies the plaintiffs and plaintiff- 

intervenors and all other voters equal protection of the laws, 

and abridges their right to vote. 

53. By submitting to the unconstitutional 

requirements imposed by the Attorney General, and 

acquiescing in the creation of race-based congressional districts 

intended to concentrate voters of a particular race and to elect 

members of Congress of a particular race, the General 

Assembly of North Carolina, in 1992, became a necessary - 

participant in creating a racially discriminatory voting process 

for the election of members of Congress from North Carolina. 

The present defendants, as part of their official duties, 

implement and execute this unconstitutional action of the 
General Assembly. 

54. By their acts done in submission to the 

requirements imposed by the Attorney General, the defendants 

have heretofore violated, and, unless preliminarily and 

permanently enjoined, will in the immediate future inevitably 

violate rights conferred upon these plaintiffs and plaintiff- 

  

 



301a 

intervenors by Article I, §§ 2 and 4, and by the Fourteenth and 
Fifteenth Amendments of the United States Constitution. 

533. The decision by the General Assembly to create 
two congressional districts in which a majority of black voters 
was concentrated arbitrarily -- without regard to any other 
considerations, such as geographical  compactnes 
contiguousness, geographical boundaries, or political 
subdivisions -- was a decision made with full awareness of the 
intended consequences and effects and was made with the 
purpose to create congressional districts along racial lines and 
to ensure that black members of Congress would be elected 
from two congressional districts in which a majority of black 
voters were intentionally and purposefully concentrated on the 
basis of census date reflecting the racial composition of North 
Carolina’s population. Plaintiffs and plaintiff-intervenors 
allege that, for purposes of the Fourteenth and Fifteenth 
Amendments to the United States Constitution, this intent and 
purpose on the part of the members of the General Assembly in w 
North Carolina was and is a racially discriminatory intent and 
purpose. The overriding and predominantly racial motive 
requires strict scrutiny which these districts cannot survive 
because there was no compelling State interest in creating them 
and they are not narrowly tailored to achieve a compelling state 
interest. Plaintiffs and plaintiff-intervenors further allege that 
Chapter 7 -- which creates bizarre, non-contiguous, and 
extraordinarily dispersed districts, such as the F irst and Twelfth 
Districts, and which was enacted as a result of the conscious 
decision by members of the General Assembly which the 
various State defendants are now continuing to implement -- is   
 



  

302a 

the result of an unconstitutional and racially discriminatory 
intent and purpose. 

56. The plaintiffs and plaintiff-intervenors will 
suffer irreparable injury unless the defendants are preliminarily 
and permanently enjoined from conducting elections according 
to the district boundaries created by Chapter 7. 

57. The plaintiffs and plaintiff-intervenors ~ 
personally have been harmed by the enactment and oo 
enforcement of Chapter 7. 

58. The injuries were caused by the enactment and ~~ 

enforcement of this unconstitutional legislation. Their injuries 
will be redressed by favorable decision from this court 
preliminarily and permanently enjoining the enforcement of 
Chapter 7. 

respectfully pray: | 
1. That the court acknowledge and declare that 

WHEREFORE, plaintiffs and plaintiff-intervenors 

Chapter 7 violates the Constitution and statutes of the United = 

States and is now prospectively null and void and of no further 
force and effect insofar as it purports to establish congressional 
districts for the State of North Carolina; 

2 That the court enter a declaratory judgment that 
the boundaries of District 1 of Chapter 7 reflect a racial 
gerrymander in violation of the Fourteenth and Fifteenth 
Amendments to the United States Constitution; 

3. That the court preliminarily and permanently 
enjoin the defendant Secretary of State and other defendants 
from ordering or conducting any further electoral processes 
under Chapter 7, from certifying the results of any such - 
processes or elections, and from taking any other steps with 

  

 



303a 

respect to the election of members of the United States House 
of Representatives, until there has been further redistricting of 
congressional districts which comply with the Constitution and 
statutes of the United States; 

4, That the court enter an order extending the 
deadline for filing certificates of announcement of candidac 
for election to the United States House of Representatives from 
the State of North Carolina to such time as is necessary to 
effect relief, 

5 The court order appropriate remedies, which 
could include solicitation or review of proposed legislative 
redistricting plans from interested parties, promulgation of new 
legislative redistricting plans by appointment of special 
masters, or such other means that the court deems appropriate, 

6. That the court retain jurisdiction of this action 
until such time as the congressional redistricting plan is 
promulgated in accordance with the constitutionaland statutory 
requirements; 

7 That the court award plaintiffs and plaintiff- 
intervenors their costs and reasonable attorneys fees; and 

8. That the court enter such other and further relief 
as may, to the court, seem just and proper.   
 



  

304a 

Respectfully submitted, this the 9th day of July, 1996. 

EVERETT & EVERETT 

BY: /s/ Robinson O. Everett 

N.C. State Bar No. 1385 

Pro Se and Attorney for Plaintiffs 

Suite 300 First Union National 

Bank Building 

Post Office Box 586 

Durham, North Carolina 27702 

(919) 682-5961 

MAUPIN TAYLOR ELLIS & ADAMS, P.A. 

BY: /s/ Thomas A. Farr 

N.C. State Bar No. 10871 

James C. Dever, III 

N.C. State Bar No. 14455 

Attorneys for Plaintiff-Intervenors 

3200 Beechleaf Court, Suite 500 

Raleigh, North Carolina 27604-1064 

Telephone: (919) 981-4000 

Facsimile: (919) 981-4300 

[Certificate of Service Omitted in Printing] 

  

    

  

   



305a 

SHAW, ET AL. v. HUNT, ET AL., CA No. 92-202- CIV-5-BR, 
PLAINTIFFS’ RESPONSE TO ORDER OF JUNE 9, 1997, 
JUNE 19, 1997 

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF NORTH CAROLINA 

WESTERN DIVISION 
CIVIL ACTION NO. 92-202-CIV-5-BR 

  

    

RUTH O. SHAW, et al, ) 
Plaintiffs, ) 

) 
JAMES ARTHUR “ART” POPE, et al, ) 

Plaintiff-Intervenors, ) 
V. ) 

GOVERNOR JAMES B. HUNT, in his official ) 
capacity as Governor of the State of North ) 
Carolina, et al. ) » 

Defendants, ) 

) 
RALPH GINGLES, et al, ) 

Defendant-Intervenors. )   

RESPONSE TO ORDER OF JUNE 9, 1997 

The Plaintiffs respond as follows to the Court’s Order 
of June 9, 1997, that they and Plaintiff-Intervenors advise the 
Court whether they intend to claim that the plan precleared by 

    
 



  

306a 

the Department of Justice does not cure constitutional defects 
in the former plan and, if so, what is the basis for the claim: 

 § The original Plaintiffs, as well as the three 
additional Plaintiffs, believe that the new plan does not 
adequately cure the constitutional defects in the former plan, 
which the Supreme Court held to be unconstitutional. Shaw v. 
Hunt, 116 S.Ct. 1894 (1996). 

2. Like its predecessor, the new plan was 
predominately motivated by race, and does not survive “strict 
scrutiny.” 

3. The Supreme Court found that in the earlier plan 
the Twelfth District was not narrowly tailored. Furthermore, a 
comparison of the new plan’s majority-black First District with 
the majority-black First District of the earlier plan makes clear 
that the First District in the earlier plan was also race- 
motivated, not “narrowly tailored,” and could have been far 
more compact and more consistent with “communities of 
interest.” 

4, The new plan fragments counties and cities 
unnecessarily, ignores communities of interest, and remains 
bizarre in appearance. The differences between the new plan’s 
majority-black Twelfth District and the unconstitutional 
majority-black Twelfth District of the earlier plan are cosmetic, 
and the creation of the new Twelfth District was predominately 
motivated by race. 

  

  

  

   



307a 

S The Twelfth District in the new planis based on 
the racially gerrymandered, unconstitutional Twelfth District in 
the original 1992 plan and the First District in the new plan is 
based on the racially gerrymandered, unconstitutional First 
District in the original 1992 plan. Thus, each of these districts 
improperly relies on the unconstitutional earlier plan and s 
violates the principles established in Abrams v. Johnson, Nos. 
95-1425, 95-1460, 1997 US. Lexis 3863, which was decided 
today, June 19, 1997. Likewise, the Twelfth and First Districts 
in the new plan reflect the continuing efforts of the Department 
of Justice to interpret and apply sections of the Voting Rights 
Act in an unconstitutional manner; and also for this reason the 
new plan violates Abrams v. Johnson. The relationship 
between the new plan and the original plan that was held 
unconstitutional in Shaw v. Hunt is so close that the new plan 
must be treated as the “fruit of the poisonous tree” and held to 
be tainted by the violations of equal protection in the earlier 
plan. 

® 

6. By virtue of the changes that have been made by 
the redistricting plan submitted to this Court on April 1, 1997, 
none of the original Plaintiffs appear to have standing to 
challenge the new plan. United Statesv. Hays, 115 S.Ct. 2431 
(1995). The additional Plaintiffs do not reside in the Twelfth 
District as originally constituted, nor in the new Twelfth 
District. 

3. Because of the lack of standing of the Plaintiffs, 
there appears to be no matter at issue before this Court with 
respect to the new redistricting plan. Although Plaintiffs 

    
 



  

308a 

believe and claim that the new plan is unconstitutional, they 

recognize that due to their lack of standing, any attack on the 

constitutionality of the new redistricting plan should be 

undertaken in a separate action maintained by persons who 

have standing. 

WHEREFORE, Plaintiffs pray this Court: 

I That the Court expressly find that the First 

District, as configured in the earlier plan, was unconstitutional 

because of the clear absence of narrow-tailoring; 

2. That this Court not approve or otherwiseruleon 

the validity of the precleared congressional redistricting plan 

submitted to it on April 1, 1997; but if it does rule, that it hold 

the new plan to be unconstitutional; 

3. That the Court dismiss this action without 

prejudice to the right of any person having standing to maintain 

a separate action attacking the constitutionality of the 

precleared congressional redistricting plan. 

  

 



309a 

Respectfully submitted this the 19th day of June 1997. » 

/s/ Robinson 0. Everett 

Attorney for Plaintiffs 

N.C. State Bar No. 1384 

301 West Main St., Suite 300 

Durham, North Carolina 27702 

Telephone: (919) 682-5691 

/s/ Martin B. McGee 

Attorney for Plaintiffs 

N.C. State Bar No. 22198 

147 Union Street South w 

P.O. Box 810 

Concord, North Carolina 28026-0810 

Telephone: (704) 782-1173 

[Certificate of Service Omitted in Printing]     
 



    
310a 

[This page intentionally left blank.] 

    
 



311a 

SHAW, ET AL. V. HUNT, ET AL., CA No. 92-202-CIV-5-BR, 
ORDER OF UNITED STATES DISTRICT COURT FOR 
THE EASTERN DISTRICT OF NORTH CAROLINA, 
SEPTEMBER 12, 1997 

UNITED STATES DISTRICT COURT » 
EASTERN DISTRICT OF NORTH CAROLINA 

WESTERN DIVISION 
CIVIL ACTION NO. 92-202-CIV-5-BR 

RUTH O. SHAW, et al, 

Plaintiffs, 

JAMES ARTHUR “ART” POPE, et al, 
Plaintiff-Intervenors, 

N
o
 

N
o
r
 

N
e
 

N
a
’
 

N
e
’
 

N
o
’
 

V. 

GOVERNOR JAMES B. HUNT, in his official ) 
capacity as Governor of the State of North ) 
Carolina, et al, ) ® 

Defendants, ) 

) 
RALPH GINGLES, et al., ) 

Defendant-Intervenors. ) 

  

ORDER 
  

For reasons given in the contemporaneously filed 
Memorandum Opinion, it is ORDERED 

    
 



  

312a 

3 That the congressional redistricting plan (1997 

N.C. Sess. Laws, Ch. 11) submitted by the state defendants to 

this court for review on April 1, 1997, is hereby APPROVED - 

as having adequately remedied the specific constitutional 

violation respecting former congressional District 12 that was 
found by the Supreme Court of the United States in Shaw v. 

Hunt, 116 S. Ct. 1894 (1996); 

2. That this court’s injunction entered on July 30, 

1996, which inter alia, prohibited the conduct of further 

congressional elections pending approval of a remedial . 

redistricting plan is hereby DISSOLVED; 

3. That the claim added by amendment to the 

complaint in this action on July 12, 1996, which challengedon 

“racial gerrymandering” grounds the creation of former 

congressional District 1, is hereby DISMISSED, without 

prejudice, as moot; and 

4. Defendants’ motion suggesting a schedule and 

process for approving the state’s new congressional 

redistricting plan is DENIED as moot. 

This 12th day of September, 1997. 

For the Court: /s/ W. Earl Britt 

United States District Judge 

  

 



313a 

SHAW, ET AL. V. HUNT, ET AL., CA No. 92-202-CIV-5-BR, 

MEMORANDUM OPINION OF UNITED STATES DISTRICT 

COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA, 

SEPTEMBER 12, 1997 

UNITED STATES DISTRICT COURT w 

EASTERN DISTRICT OF NORTH CAROLINA 

WESTERN DIVISION 

CIVIL ACTION NO. 92-202-CIV-5-BR 

RUTH O. SHAW, et al., ) 

Plaintiffs, ) 

) 
JAMES ARTHUR “ART” POPE, et al., ) 

Plaintiff-Intervenors, ) 

V. ) 

: GOVERNOR JAMES B. HUNT, in his official ) 

capacity as Governor of the State of North) | 
= Carolina, et al., ) w 

Defendants, ) 

) 
RALPH GINGLES, et al., ) 

= Defendant-Intervenors. ) 

  

MEMORANDUM OPINION 
  

    
 



  

314a 

PER CURIAM: 

This matter is before the court upon submission by the 

state-defendants of a congressional redistricting plan enacted ” 

by the General Assembly of North Carolina in compliance with . 

this court’s injunctive decree of July 30, 1996. The submission 

seeks approval of the plan as having adequately remedied the 

constitutional violation found by the Supreme Court of the 

United States in Shaw v. Hunt, 116 S. Ct. 1894 (1996), and, in 

consequence, a dissolution of this court’s injunction against the 

conduct of further congressional elections pending that 

approval. 

For reasons that follow, we conclude that the plan does 

adequately remedy the specific constitutional violation found 

as to the plaintiffs and plaintiff-intervenors in this case, and on 

that basis we will enter an order approving the plan to that 

extent and dissolving the extant injunction. 

On June 13, 1996, the Supreme Court of the United 

States entered its judgment remanding this action for further 

proceedings by this court in conformity with the Supreme 

Court’s decision that North Carolina’s then-extant 

congressional redistricting plan was unconstitutional because 

unjustified “racial gerrymandering” in the location and 

configuration of District 12 violated equal protection rights of 

some of the named plaintiffs in the action. Shaw, 116 S. Ct. at 

1899. 

  

   



315a 

Pending receipt of the Supreme Court’s mandate which 

did not issue immediately, this court, on July 12, 1996, granted 

an unopposed motion by plaintiffs and plaintiff-intervenors to 

amend the complaint in the action to add new parties and to 

raise a Shaw claim challenge to District 1. 

Following receipt of the Supreme Court’s mandate and) 

after holding a hearing on the implementation of the required 

remedy for the constitutional violation, we entered an order on 

July 30, 1996, that enjoined the state-defendants from 

conducting any congressional elections under the then existing 

redistricting plan after the 1996 elections, but allowed the then 

ongoing electoral process for those elections to proceed to 

completion. The order referred the development of a proposed 

remedial plan to the General Assembly of North Carolina for 

exercise of its primary jurisdiction in the matter, with 

instructions to enact and submit to this court a proposed 

remedial plan by April 1, 1997. The order retained jurisdiction 

in this court to act in default of timely action by the Genera 

Assembly, for approval of any plan submitted, and for such 

further proceedings as might be required. 

The General Assembly enacted a proposed remedial 

plan on March 31, 1997 (1997 N.C. Sess. Laws, Ch. 11) and 

timely submitted it to this court for approval on April 1, 1997. 

Contemporaneously, the State submitted the plan for 

preclearance by the United States Department of Justice 

pursuant to § 5 of the Voting Rights Act and we deferred action 

on the plan pending action by the Justice Department. See 

McDaniel v. Sanchez, 452 U.S. 130 (1981).     
 



  

316a 

While preclearance action was pending, we entered an 

order on May 28, 1997, denying intervention either of right or . 
permissively to a number of African-American voters and 
associations who sought intervention both to suggest 
alternative remedial plans and to raise specific vote-dilution 
challenges under § 2 of the Voting Rights Act to certain 
districts in the proposed plan. We found no right to intervene 
under the provisions of Fed. R. Civ. P. 24(a), and declined to 
exercise our discretion to permit expansion of this action to - 
include new § 2 dilution claims under Fed. R. Civ. P. 24(b). 

On June 9, 1997, the Department of Justice precleared 
the plan pursuant to § 5 of the Voting Rights Act. On that 

same day, we entered an order directing plaintiffs and plaintiff 
intervenors to advise the court by June 19, 1997, whether they 
intended to object to approval of the plan by this court and, if . 

so, to identify the basis of their objections. 

In response, the plaintiffs (both original and’ added), 
while asserting protectively the plan’s inadequacy, disclaimed 
standing under the principles of United States v. Hays, 515U.S. 
737 (1995), to make any challenge to the plan because, they 
asserted, none of the original plaintiffs resided in the “new” 
Twelfth District, nor did any of the added plaintiffs reside in 

either the original or “new” Twelfth. 

Separately responding, the plaintiff-intervenors, 
reasserting a position previously urged by motion, also declined 
to make substantive objection to the plan. They contended 

  

 



      

       

      
    
    
    
    
    
    
    

      
    
  
      

     

  

      

      

             

      

      

317a 

instead that the action, having been mooted by the legislative 
action, could only be dismissed without prejudice on that basis. 

The state defendants, replying to these separate 

disclaimers of standing and assertions that the entire action was 

moot contended (1) that there were both plaintiffs and plaintiff- 

intervenors with the requisite standing to make bit 

challenges to the submitted plan as to both Districts 1 and 12, 

and (2) that the action was not mooted by virtue of the 

legislative action. On this basis, they contended that the parties 

with standing should be required to make such challenges as 

they could, and that this court was empowered and obligated to 

exercise its continuing jurisdiction to review the submitted plan 

to determine whether it remedies the constitutional violation 

found by the Supreme Court. 

H, 

We first address the issues presented by the lack-of- » 

standing and mootness positions taken by the plaintiffs and 

plaintiff-intervenors and disputed by the state defendants, and 

the consequent declination by the plaintiffs and plaintiff- 

intervenors to take any substantive position on the adequacy of 

the proposed remedial plan, then turn to the merits. 

1. To the extent the plaintiff-intervenors’ 

contention is that the entire action has been mooted by the 

legislature’s enactment of a remedial plan, thereby depriving 

this court of jurisdictioneven to approve or disapprove the plan 

and requiring a simple dismissal without prejudice, we reject  



  

318a 

the contention. Neither of the Supreme Court decisions relied . 
upon for the proposition supports it; each is inapposite. : 

In Louisianav. Hays, 116 S. Ct. 2542 (1996), a pending 
appeal from a three-judge court-ordered redistricting plan was 
dismissed as moot. In that case, the state legislature had in the | 
interval independently adopted and enacted the plan. This 
obviously mooted any basis for Supreme Court review of the 
district court order, whereas here the very matter pending 
judicial review is the legislative enactment. 

In Johnson v. Northam, No. TCA 94-40025-MMP, 
1996 WL 297280 (N.D. Fla. May 31, 1996), a three-judge 
court, after hearing the parties on the adequaciesof a legislative = 
remedial plan and approving it, then ordered the case “closed 
with respect to the remedies that have been rendered to correct 
any constitutional infirmity found” in the challenged plan. Jd. 
at *1. Rather than demonstrating that a legislature’s enactment 
and submission of a proposed remedial plan moots the action, 
the case demonstrates to the contrary the continuing 
jurisdiction of the court to act in judicial review of the enacted 
plan before “closing” the case. 

We therefore conclude that legislative enactment of the 
submitted plan did not, by mooting the entire action, deprive 
this court of its expressly retained jurisdiction to review the 
plan for approval. 

2 Though enactment of the plan submitted has not 
mooted the entire action, it has effectively mooted the Shaw- 

  

   



  

319a 

claim added by amendment to challenge District 1. As we 
expressly anticipated in deferring consideration of that added 
claim pending legislative action, the remedial plan significantly 
reconfiguresthe area formerly comprising that district, making 
the claim challenging its former configuration, location, and 
racial compositionmoot. Because as to that claim we therefore 
have no retained approval jurisdiction, it may be dismissed for 
mootness if the plan is approved as having adequately remedied 
the specific violation that has been determined as to District 12. 

3. Assuming without deciding (the fact being 
disputed) that--as they assert--none of the plaintiffs resides in 
“new District 12,” any resulting lack of standing on their part 
to challenge the constitutionality of that particular 
reconfiguration of districts cannot affect our retained 
jurisdiction to review the plan for its adequacy to remedy the 
violation found as to former District 12. We are doubtful that 
the non-inclusion of successful plaintiffs in any particular 
reconfigured district that is assumed to be the specific remedial 
district could be thought, because of the Hays residence 
requirement, to deprive them of standing to challenge the 
remedial plan as inadequate for the purpose at issue. But we 
need not attempt to decide that quirky problem growing out of 
the Hays standing rule. It suffices for our purposes that, for 
reasons satisfactory to themselves, the plaintiffs have formally 
chosen not to raise any substantive challenge to the adequacy 
of the plan to remedy the specific violation found as to former 
District 12. 

In that circumstance, we may properly approve the plan 

 



  

320a 

as having remedied the specific violation found on the simple 

basis that its adequacy for that purpose has not been challenged 

‘by any party to the litigation. Under long-settled judicial . 

redistricting principles, once a state legislature enacts a 

remedial plan that is then precleared under § 5 of the Voting - 

Rights Act, that plan “will then be the governing law unless it, - 

too, is challenged and found to violate the Constitution.” Wise 

v. Lipscomb, 437 U.S. 535, 540 (1978). That principle simply 
applies in this particular context the general presumption that, . 

until successfully challenged, state legislative enactments are 

in conformity with constitutional requirements. 

There having been no substantive challenge to the plan : 

by any party to this action, we will therefore approve itasa 

constitutionally adequate remedy for the specific violation - 

found by the Supreme Court in this case. 

4, We close by noting the limited basis of the = 

approval of the plan that we are empowered to give in the 

context of this litigation. It is limited by the dimensionsof this 

civil action as that is defined by the parties and the claims 

properly before us. Here, that means that we only approve the 
plan as an adequate remedy for the specific violation of the 

individual equal protection rights of those plaintiffs who 

successfully challenged the legislature’s creation of former 

District 12. Our approval thus does not--cannot--run beyond 

the plan’s remedial adequacy with respect to those parties and 

the equal protection violation found as to former District 12. 

  

 



321a 

IIL 

For the foregoing reasons, an order will be entered 
which approves the submitted plan to the extent noted, 
dissolves the injunction of July 30, 1996 against the conduct of 
further congressional elections, and dismisses without 
prejudice, as moot, the claim added by amendment to challenge 

former congressional District 1. 

    
   



    
322a   

      [This page intentionally left blank.] 

  
 



323a 

DEPOSITION OF JOEL K. BOURNE, (OCTOBER 4, 1999) 

(SELECTED PORTIONS) 

Q. And you are a friend of Martin Cromartie? 

A. Yes. 

Q. And so far as you know, you didn't--youdidn't have any 

previous acquaintanceship with Mr. Robinson Everett or 

anybody involved in the original lawsuit? \ 5 

A. No, no. 

Q. Did you keep track of that original lawsuit? 

A. Just through my friend Martin Cromartie. 

Q. And you talked with him about it from time to time? 

A. Yes, occasionally. 

Q. And why did you keep track of it? 

A. I was interested. 

Q. And was there something particular about it that 

interested you? 

A. Well, I have always been interested in politics and 

%* % *% » 
[¥17] Q. Did someone suggest to you--did Mr. Cromartie 

perhaps suggest to you that they needed some more plaintiffs, 

that the case needed some more plaintiffs? 

A. No, I don't think so. I discussed it with him. Iam sure 

of that. And he knew I had an interest in it, and you know, 

maybe after that I just decided to join, I guess. 

Q. Well, did you say to him, "I would like to join this 

lawsuit if it is not too late," or did he say--- 

A. (interposing) I may have. 

Q. ---"We could use some more plaintiffs"? 

    
 



  

324a 

A. Yeah. [ may have. I may have; uh-huh. This was in 
telephone conversations, you know. He would call me and we 
[*18]would discuss it, and I guess that is when I decided to 

join; uh-huh. 

  

  
 



325a 

DEPOSITION OF MARTIN LUTHER CROMARTIE, 

(SEPTEMBER 22, 1999) (SELECTED PORTIONS) 

[* 11] Q. Okay; thank you. To shift gears a little bit, 

when did you first become aware that there was litigation about 

North Carolina's congressional districting plans in the 1990s? 

A. Whenever it hit The News & Observer; I don't--I can't 

recall the exact time, but I have been interested enough @ 

politics and in civil rights to know that I knew about it 

whenever it hit the public press. 

Q. And to the best of your memory, did you learn about it 

through The News & Observer or other media entities such as 

newspaper or television? 

A. I certainly think it would have first been The News & 

Observer. 

%* % % 

[* 12] A. Robinson and his cousin and I knew each other 

first at Duke. His first year at Duke as a professor was my first 

year as a law student. And his cousin was a second or a third 

year student. And we have seen each other off and on since 

then. And since I spend a lot of time in Washington now and 

he does, too, we see a lot of each other at a place called Chevy's 
  

along with another group of people. And if 

A ® 

[*13] Q. All right. But you do know Mr. Robinson 

Everett, the plaintiffs’ attorney in this case--- 

A. (interposing) Yes.   
 



  

326a 

Q.  ---personally? 

A. Yes. : 

Q. And you have known him since you went for a while 0 

Duke law school? 

A. Since 1950. 

[¥16] Q. When did you see him--if you recall, when did 

you see Robinson Everett personally to talk about this case, to 

talk about the Shaw case? _ 

A. I can't--I just don't know when it was. 

Q. Well, can you ball park it whether it was closer to the 

time that you first learned about the suit or whether it was 

closer to 1996 when you became involved as a plaintiff? 

A. Oh, we had talked about it before I was a plaintiff. 

Q. All right. And had you talked about it a number of 

times by then? 

A. Yes. 

Q. All right. And do you know any of the original 

plaintiffs in the Shaw suit? 

A. Melvin Shimm; I don't remember the names of any 

others, so I don't think I knew them. 

Q. And is Melvin Shimm a professor at Duke University 

law school? 

A. He just retired. 

* % % 

  

   



327a 

[¥26] Q. All right. And did Robinson suggest to you that 

you become a party or did you suggest it to him--- 

A. (interposing) No. 

Q. ---or did it come about some other way? 

A. He suggested it. 

[¥30] Q. Did you understand that the Supreme Court had 

said that there weren't any plaintiffs in the Shaw suit who lived 

in the 1st District? 

A. Well, I understood that at the time I joined in, because 

Robinson and I talked about that and I am sure that is the 

reason--that is the reason Robinson asked me to join 

in. 

[*31] Q. So your understanding was that you lived in the 

Ist District at least in 1996? 

A. Oh, wait a minute; I said 1st. It was the 2nd District 

then. Let me put it this way: I joined in because I was   in--lived in Edgecombe County, and that was a county which 

fitted Robinson's needs in the lawsuit.   
  

* % % 

[*36] Q. And by the way, to your knowledge, this lawsuit 

wasn't a--it wasn't a class action, was it? | 

A. No. If I know what a class action is, it was not a class 

action. It seems in a way to have elements of a class action 

because in a way it was brought on behalf of all the residents of   
 



  

328a 

the congressional district. | 

And I think it can really even be construed--I don't 

know why we had to be members of the district. If I were the 

judge I would say a change in any district affects the whole 
[*¥37] state, a substantial change in any district. And any voter 

in the state could challenge. 

* % % 

[*43] Q. And in this new case you didn't file that as a 

class action, either, did you? The Cromartie case is not filed as 

a class action, is it? 

A. I have never done a class action lawsuit and I am not 

really sure what constitutes one. My thought was that we were 

representing at least the rest of residents of my congressional 

district and maybe the residents of all of North Carolina, and 

one could even think beyond that. 

[*44] Q. And you are essentially representing the same 

group of people effectively that you were--in the Cromartie 

case that you were in the Shaw case? 

A. Oh, I think so. I was representing my ideology and 

those who held the same ideology. 

* % % 

[*57] A. I am not related to any of them. Chan Muse is 

a friend. 

Q. And does he also live in--- 

A. (interposing) Tarboro. 

Q. ---Tarboro? Okay. 

  

 



329a   
A. Chan is a retired attorney. 

Q. Did you suggest to him that he become involved in this 

lawsuit? 

[*58] A. Yes. And incidentally, he has also always voted 

for Eva Clayton, in poor health now and he is interested in the 

same thing he says she is interested in, which is social security 

and Medicare. 

Q. And are you close friends or acquaintances with any of 

the other plaintiffs in the Cromartie suit? 

A. I don't see her name here, but we joined--when Robert 

Curtis Wheeler, the retired Clerk of Court, died--I had asked 

that he be joined, or asked him to join. And he died and I asked 

his wife to carry on his fight. And I don't know--she is not 

here, but she is in the suit. 

Q. And then you suggested that she also join the lawsuit? 

A. Yes. 

Q. And before that did you suggest to her husband that he 

join the lawsuit? 

A. Yes. - 

hh 

[¥75] Q. And then--so in terms of the things you knew 

about the lawsuit, the Supreme Court also said about the 1st 

District that it would not adjudicate that because there was no 

. plaintiff in the lawsuit from the 1st District? 

| Q. And as you were following this along with Robinson in 

a conversation where that issue came up, he asked you and you 

  
  

agreed to be a plaintiff? 

 



  

330a 

A. Correct. 

Q. And you went out and talked to your friend Chan 
Muse--- 

A. (interposing) That is right. 

0), ---who is an attorney there in Tarboro--- 

A. (interposing) Yes. 

Q. ---and some others so that there would be plaintiffs 
from the 1st District--- 

A. (interposing) Yes. 

%* x % 

[*77] Q. So within six days of each other you filed a 
motion to intervene as a plaintiff, as a 1st District plaintiff in 
the Shaw case and you also filed a separate lawsuit? 
A. Correct. 

    

 



331a 

DEPOSITION OF REUBEN O. EVERETT, (OCTOBER 1, 1999) 

(SELECTED PORTIONS) 

[¥26] Q. And let's see here. Now, for the record, are you 

kin to Mr. Robinson Everett, the plaintiff's counsel here? 

A. Yes, ma'am, I am. I am his first cousin. His father and 

my father were brothers. And my father named me for his 

father before his father got married and he came along. And i 

that is why he is not a junior. 

Q. You didn't want two with exactly the same name in 

your generation? 

[27] A. Listen, I have had enough problems coming 

along myself. 

Q. So you are both R. O. Everett, but you have different 

names? 

A. He is Robinson O. and I am Reuben O.; yes, ma'am. 

Q. And have you and your cousin Robinson Everett kept 

in pretty good communications over the years? 

A. Yes, ma'am, at family gatherings. We haven't--we 

haven't, unfortunately, spent a lot of time together, but we have A 

stayed in touch; yes, ma'am. 

%* % %   [*29] Q. Did you learn about it from your cousin or 

from another relative or a mutual friend, or did you--- 

A. (interposing) As I remember, I read it in the 

newspaper because--that is it. I don't remember any 

conversation. 

Q. So as far as you know you first learned about it from 

the newspaper? 

 



    
332a 

A. Yes, ma'am, back in whenever it began, Shaw v. 

Reno; yes, ma'am. 

Q. Around 1992; does that sound right? 

A. Something like that, correct. 

Q. And did you communicate with him then to say "I 

read about your lawsuit"? 

A. Specifically as an example of that, not that I 

remember. I didn't call him up. I didn't go down to see him 

or anything along that line, but as our paths would cross I am 

sure I mentioned it to him and was interested in what he was 

doing, always have been. 

Q. And at that time he wasn't your attorney in this 

lawsuit--- 

[*30] A. (interposing) That is correct. 

Q. ---s0 it wasn't an attorney-client communication; 

right? 

A. That is correct. 

  

  

Q. And when you saw him from time to time like at a 

family gathering or whatever did he tell you how the lawsuit 

was going? 

A. Only as I remember in very general and very 

unspecific terms. I don't remember anything specific about it 

at all. 

Q. And did you ever talk to him at those times about 

possibly becoming a plaintiff in the lawsuit? 

A. No, don't remember that. 

Q. And then in November of '95 you wrote to him what 

is Exhibit 63 and referred to a newspaper article. And what 

was that newspaper article about? 

A. I do not remember. 

 



  

  

333a 

Q. Okay. You don't remember that. The newspaper 

article is gone; just the note is left? 

A. That is it. 

Q. Now, as of November '95 you hadn't yet thought 

about becoming a plaintiff. Do you recall when you 

considered becoming a plaintiff? 

A. It was after the Shaw v. Reno Supreme Court 

decision. And Judge Everett somewhere in our discussions 

he said that he needed to start over. I don't remember any 

specific 

[*31] conversation along that line, except that I remember 

that it was a very general approach. 

Sometime later we were talking. He called me and 

said he needed a plaintiff in Rowan County. And I said, 

"Well, I'm here," or something along that line. And he said, 

"Well, if you're interested in joining, I'll be glad to have you 

as a plaintiff," something along that line. I don't remember 

the specifics, but that is paraphrasing. 

Q. You didn't volunteer. You accepted--you were 

drafted--- 

A. (interposing) No, no. 

Q ---literally? 

A. No, no; no, no. 

Q. No? 

A. No, no; no, no. I didn't call him up and volunteer, 

Ms. Harrell. 

Q. Okay. 

A But I did willingly and happily join participation. 

Q. Okay. 

A It was not draft. It was not any arm twisting or 

 



    
334a 

coercion or anything along that line. 

Q. You went willingly, but you--- 

A. (interposing) Happy to. 

Q. ---didn't--it was not your initiative that led to it; is 

that right? 

     



  

  

335a 

DEPOSITION OF JACOB HENRY FROELICH, JR. 

(SEPTEMBER 30, 1999) (SELECTED PORTIONS) 

[¥13] A. I know Greg Everett. 

And Robinson Everett? 

I know Robinson Everett. 

And Dorothy Bullock? 

Dorothy Bullock, yes. 

You know her? 

Uh-huh. 

How do you know Ms. Bullock and the Everetts? 

I have been involved in the television business and have 

been in business--we have been in business together in the 

television business in Greensboro and also in Wilmington. 

Q. You have been in business with Robinson Everett, 

would that be? 

A. Yes; and his mother, who is deceased. And Dorothy 

Bullock is the lady in the office that I would--who would 

communicate with me. 

Q. And is Greg Everett Robinson Everett's son? 

(Witness nods affirmatively.) 

TR
O 

P
R
O
P
L
O
P
»
R
 

Q. Have you had any business dealings with him or just 

know him as Robinson Everett's son? 

A. I just know him as Robinson's son. 

Q. When did you first become involved in business with 

Robinson Everett and Ms. Catherine Everett? 

A. In the 70s. 

Q. In the 1970s; okay. 

[*14] A. Or really late "60s. 

Q. Once you went to vote in 1992 and found out that you 

were in the 12th District, did you contact Robinson Everett 

 



  

336a 

about this lawsuit? 

A. I think I was conscious of what was going on, and I may 

have mentioned to him that I was pleased that that was going 

on when I saw him under some--I didn't go vote and call 

Robinson, no. : 

Q. Did you try to keep track of the Shaw lawsuit? 

A. I very much did. 

Q. And how did you keep track of it? 

A. In the press and finding out what is going on; I have 

been involved in politics in North Carolina all my adult life. I 

have been chairman of the Democratic Party in Guilford 

County. I ran Skipper Bowles' campaign for governor in 1972. 

I have been involved very much in what goes on 

politically in North Carolina and how North Carolina is put 

together. So I very much agreed that a suit ought to be filed 

because I thought the congressional district was absolutely not 

justifiable at all. 

Q. Did you talk about it with Robinson Everett other times 

other than just mentioning to him that you agreed with the suit? 

A. Well, I am sure I had conversation with him, yes, 

[*22] Q. You were never a plaintiff in the Shaw case; 

right? 

A. I wasn't a plaintiff in the Shaw case. 

Q. Were you aware that the Shaw plaintiffs asked the court 

not to rule on the 1997 plan in that case? 

A. Say again. 

   



337a 

not to rule on the validity of 1997 plan in that case? 

A. Yes. 

Q. You were? 

A. I think I was. 

irs ® 

[*30] A. I mean, I was told what was going to happen and 

I agreed to that. 

Q. You were told this is the way it would work; is that 

right? 

A. The way it was going to--the way it was in the process 

of working, yes. 

Q. How did it come about that you were going to become 

a plaintiff in this lawsuit? 

A. Because I felt very strongly that something had to be 

done. 

Q. All right. And had you previously told Robins) 

Everett that you would like to be a plaintiff or were willing to 

be a plaintiff? 

A. Yes. 

Q. Had you done that before you filed your declaration in 

the Shaw suit? Do you recall? 

A. I don't remember that. 

 



    
338a 

[This page intentionally left blank.] 

 



339a 

DEPOSITION OF JAMES RONALD LINVILLE, 

(SEPTEMBER 30, 1999) (SELECTED PORTIONS) 

[*14] Q. Now, after you read about this first suit in the 

paper, did you try to keep track of it? 

A. To some degree I tried to follow it because it did impact 

me. I was in the 12th. My dad, who lives closer to Winst 

Salem than I do, was in the 5th. We couldn't understand that at 

all. You know, as a veteran I kind of feel like that--you know, 

my family, we gave a lot to this country. 

Q. Okay. 

A. I want to finish this. 

Q. Oh, I'm sorry. 

A. My dad and my uncle, uncles, they fought; I fought. 

And all we have got is this vote, and it is real important that we 

all have the right to vote and be part of our community. 

And this district took me out of the people that I 

associate with, people I live with, people I have interaction 

[¥15] with, and compelled me to deal with people outside 

where I live through my voting. And I see that--it is wrong, 

and so that is why I am here. 

[*19] A. I read it in the paper. 

Q. And at that time you still didn't know Mr. Robinson 

Everett, or did you? 

A. I don't know when I first talked to Mr. or Dr.--is it Dr.? 

Mr. McGee: Judge, Professor. 

A. Judge, Mr.; basically realized where I was in the 12th, 

didn't like the shape of it. I am a rural person. I was being 

 



  

340a 

connected to urban centers. And I basically just called Dr. 

Everett up and told him I appreciated what he was doing 

because it was a really weird configuration. And that is how I 

kind of got involved in it. 

Q. So you called up--- 

A. (interposing) I just called him and said, you know, “I 

appreciate what you are doing for people that live out in the 

countryside,” and one thing led to another. I didn't intend to 

get involved. 1 was just trying to say thanks for trying to do 

something for the people out here in the rural areas. 

* % % 

[*24] Q. Was it your understanding that Mr. Everett and 

his co-counsel needed some plaintiffs for the 12th District? 

A. I think that there has to be people that have standing; 

yes. 

Q. And it was your--it was your understanding that they 

needed plaintiffs who lived in the 12th District and would have 

standing to challenge it; is that right? 

A. Yes. 

Q. Did you know of any reason why you couldn't have 

been [*25] added in the original lawsuit through an amendment 

to challenge the 12th--new 12th District there? 

A. I don't remember the timing nor how all this came 

about. I probably could have been, but I just didn't--I just 

wasn't. 

% % %x 

   



341a 

[*27] Q. And if T am understanding you correctly, you are 
opposed to dividing any counties to make districts; is that 
right? 

A. I would be, yes, ma’am. They have county seats. They 

have got local governments. And that is what the people hay, 

to deal with on a local level. » 

*.% % 

[*36] A. In the ‘97 plan--if this is the ‘97 plan, I am in--I am 

in the ‘97 plan in the Sth. My father, who was in the 5th, is 

now in the 12th, who lives closer to Winston, to the core of 

Winston. 

Q. So under the 1997 plan, you would not be a resident of 

the 12th District; is that right? 

A. Right. Now, I had a problem with that because when 

 



    
342a 

[This page intentionally left blank.] 

 



343a 

DEPOSITION OF THOMAS CHANDLER MUSE, (OCTOBER 4, 

1999)(SELECTED PORTIONS) 

[*24] Q. When did you first become aware of the lawsuit 

concerning the congressional redistricting? 

A. I think Martin Cromartie called me. I am not sure. It 

might have been Mr. Everett that called me first, but one 

them called me. And I came up--Martin came up with me w» 

of under my wing and I sort of hate to say that, but--because it 

is something else to fly out from under your wing. But Martin 

called me, and I knew the ball game was finished then. If you 

were watching the ball game and Martin called, you might as 

well cut your set off because you are going to talk for two 

hours. So he may have told me about it and--or Mr. Everett 

may have. I don't know which. 

Q. And did you know Robinson Everett beforehand? 

A. I knew of him very well through Martin, who told me 

that he was his favorite professor in law school and that Mr. 

Everett would be in touch with me because he was going to w 

* % % 

[*44] Q. All right. And so you and Mr. Cromartie and 

Mrs. Weeks jointed the lawsuit and cured any problems of any 

standing to challenge the 1st District; is that right? 

A. That is right. And if he drops dead tonight, I will try to 

take the lead. 

[*45] Q. And it is your understanding that the lawsuit 

 



  

344a 

was a class action? 

A. Yes, ma'am. 

[*46] Q. And it was brought on behalf of all the citizens 

of the 1st and 12th Districts--- 

A. (interposing) Absolutely. 

Q. ---or all over the state? 

A. Absolutely. 

   



  

   

    

    
    

   

  

   

    
   

   
     

    

  

    

  

   

    
   

    

345a 

DEPOSITION OF ALMA L0O1S WEAVER, (OCTOBER 4, 1999) 

(SELECTED PORTIONS) 

[71 Q. And when did you first become aware of this 

lawsuit? 

A. Like I said, Mr. Cromartie told me about it. And he 

didn't go into any details. And I became aware of it re 

when my husband was interested in this and talked some about 

[*8] it, but not enough that I could really, you know, get that 

much. But my husband passed away, and so I thought that I 

would do this in his memory. 

[*11] would be a good thing to do to honor him. 

Q. All right. 

A. I hope so. - 
Q. If you don't mind telling me, when did you hush | 

pass away? 

A. The 22nd of April. 

Q. 22nd of April. And in between on and Avgast3 31 

some time you talked to Mr. Everett about substituting, or did - : 

you talk to Mr. Cromartie about it? 
A. Cromartie; Martin calls me right regular. Curtisandl 

have known him for years, ever since my husband was at the 

courthouse in Tarboro. And he calls me quite often, especially 

since Curtis passed away, you know, just condo-lences and 

everything. 

Q. He wants to see how you are getting along? 

A. Yes, ma'am. That is basically it. 

O. And Curtis was vour hushand? 

 



    
346a 

A. Yes. 

Q. And what did he do? 

A. He was Clerk of Superior Court in Edgecombe County. 

% ok 

[¥12] Q. Now, did you know Mr. Everett before you 

became part of this lawsuit? 

A. No, ma'am. 

Q. Now, you know Mr. Cromartie? 

A. Yes, I do. 

Q. And do you know Mr. Bourne and Mr. Muse? 

A. He has been a neighbor and a friend of ours for years. 

We lived on the next block from where Mr. Bourne lives for 32 

years. 

Q. And did you know Mr. Muse? 

A. I had met him before, but I hadn't, you Gow, known 

him that closely as I had Mr. Bourne. 

 



   



   



  

Nos. 99-1864 and 99-1865 
  

In the 

Supreme Court of the United States 

  

_ and 
ALFRED SMALLWOOD, ef al, : 

Appellant-Intervenors, 

Eo MARTIN CROMARTIE, ef al, 
3 0 Appellees. 

  

On Appeal from the United States District Court 

_ Eastern District of North Carolina 

  

JOINT APPENDIX 

~ Volumelofll 
(pages 1 through 482) 

  

[Counsel listed on inside front cover] 

APPEAL DOCKETED MAY 23,2000 
PROBABLE JURISDICTION NOTED JUNE 26, 2000 
    

  

Appellants,   

 



 
 

         
 
 
 



  

= MICHAEL F. EASLEY 

~~ NC Attorney General 
Tiare B. Smiley* 

Norma S. Harrell 
NC Department of Justice > 

i Post Office Box 629 
Co Raleigh, NC 27602-0629     

      

. : : Counsel for x Appellants 

_ Adan Stein 
Version Stein Wallas 

Chapel Hill, NC 27514 
Telephone: (919)933-5300 

Todd Cox* 
NAACP Legal Defense & 
Educational Fund, Inc, 

1444 | Street NW 
Washington, DC 20005 

Telephone: (202) 682-1300 

Counsel for Appellant- 
Intervenors 

Telephone: (019) 716- 900 

Robinson O. Everett* 

| Seth Neyhart 
Everett & Everett 

Post Office Box 586 
Durham, NC 27702 

Telephone: (919) 682-5691 

Martin B. McGee 
_ Williams, Boger, Grady, 

Davis & Tuttle, P.A. 

Post Office Box 2 

Kannapolis, NC 28082 
ae - Telephone: (704) 932-3157 So Adkins Gresham & Sumter ~~ = 

312 W. Franklin Street Douglas E. Markham 
~ Post Office Box 130923 

~ Houston, TX 77219-0923 
Telephone: (71 3) 655-8700 

Counsel for Appellees 

*Counsel of Record 

A
E
B
 

A 

    

  

     



TABLE OF CONTENTS   
. YOLUME 1 

| Chronological List of Relevant Docket Entries ......... 1 

| Stipulations from Pre-Trial Order (excerpisy"...... 0. 15 

TRIAL TRANSCRIPT EXCERPTS ® 

Opening Statement of Tiare B. Smiley. ...... 00 23 

HamitonHortn ........ vite ui oi, gn 25   

  

 



    
ii 

  Closing Argument of Adam Stein ................:. 269 

EXHIBITS 

Type P Divergent Segments (Exhibit 23) ........ ST | 

Type R Divergent Segments (Exhibit 24) ............ 273 

Summary of Divergent Precincts and Segments 

Exh 2S). si ee i SL EF, 275 

Declaration of Ronald E. Weber (excerpts) 
Edit SET TN SR 277 

February 10, 1997 E-mail from Gerry Cohen 

(EXNIDIESBY vse sii vain vias sas sade 369 

North Carolina Section 5 Submission for 1997 
Congressional Redistricting Plan 
(Exhibit 100) (excerpts) 

Information Supporting North Carolina’s 
Section 5 Submission (excerpts) .......... 371 

Section 97C-28F-4D(2) Senate Committee 
Minutes (February 20, 1997) ............. 391 

Section 97C-28F-4D(3) Senate Committee 

Minutes (March 19,1997) ............... 405 

Section 97C-28F-4E(1) House Committee > 
Minutes (February 12, 1997) (excerpts) .... 439 

Section 97C-28F-4E(2) House Committee   
 



  

    

    

   

  

iii 

Minutes (February 25, 1997). ot. 0d 443 

Section 97C-28F -4E(3) House Committee 
Minutes (March 19, 1997) (excerpts) 

    

  

Si oll 453 

Section 97C-28F -4E(4) House Committee 
Minutes (March 25, 1997) (excerpts) ...... 459 

Section 97C-28F-4F (1) House Floor 
Debate (excerpts) +.....00 0. 0 463       

  

Section 97C-28F-4F (2) Senate Floor 
Debate}(excerpis) ......000 0 00 473      

    

  

VOLUME II 

Map of Precincts by Percent of Population Black 
with Congressional District Line Overlay 
(Exhibit 106)    

       
Forsyth Precincts by Percent of Population Black 

with Democratic Registration Values 
(Exhibit 108) 

   
         Pitted vie en Re a a 484 

North Carolina Counties by Percent of Population 
Black with 12* Congressional District Overlay 
Balibieiofy yD. vas oo 485       

Congressional District 12 - 1992 versus 1997 . (Exhibit 139) 

  

hai REC SG BEAL PR EE   



  

iv 

Guilford County Precinct Map (Exhibit 144) ....... 

District 12 Region Precincts by Percent Democrat 

Vote in 1988 Court of Appeals Race 
Exh sdY ts a NE 

Forsyth County Voter Precincts by Percent 
Democratic Vote in 1988 COA Race 

Fon SRBC ae Se 

Guilford County Precincts by Percent 
Democratic Vote in 1988 COA Race 
ENBR250Y rr a RE 

Mecklenburg County Precincts by Percent 

Democratic Vote in 1988 COA Race 

i Ya SE A AL LE 

District 12 Region Precincts by Percent Democratic 

Vote in 1990 Senate Race (Exhibit 263) ..... 

Forsyth County Voter Precincts by Percent 

Democrat Vote in 1990 Senate Race 

EXbIE65) ../i ta oa, 

Guilford County Voter Precincts by Percent 
Democrat Vote in 1990 Senate Race 

(Exhibit 06) 7. 5c. du Bs ai en 

Mecklenburg County Voter Precincts by Percent 

Democrat Vote in 1990 Senate Race 

Chibi 268) EES 

    

  

  

  

  
 



  

  

  

  
  

Vv 

North Carolina 1990 Population Density 

(By Block Group) (Exhibit 270) ............. 497 

Map of 1980s Congressional Districts in 

North Carolina (Exhibit 288A) .............. 498 

Map of [1970s] Congressional Districts (11 Districts) 
(EXIMDIL 2B) io cose vr vais vin sini sions sears 499 

Comparative Map[s] of the 12" District, from 98C-27A-3C 
(1998 Section 5 Submission) (Exhibit 305) 

1992 Congressional Plary ........... 000 0.. .es 500 

97 House/Senate Plan A ......... 0. .i 0. 501 

98 Congressional Plan A ............... “802 

A Chronology on North Carolina Redistricting 

in the 1990s (Exhibit 306) (excerpts) 

Proportion of Precincts in Six Counties That Are 
in Congressional District 12, 1997 Plan 

BLT Ee A ie TS Ee ER 515 

Photograph of Default Screen in P1an90 

(EXbit al), dh 0 ov oh BT, 517 

Photograph of Plan90 Screen Showing County with 

Precinct with Precinct Lines and Data Window 

Sized as Generally Used (Exhibit 405) ........ 518 

Photograph of Plan 90 Screen Showing Democrat 
Percentage Labels (Exhibit 411) ............. 519 

 



  

vi 

Photograph of Plan90 Screen Showing Data Window 
for a Precinct (Exhibit416) ................. 

An Evaluation of North Carolina’s 1998 

Congressional Districts [1997 Plan], 
Gerald R. Webster, PhD (Exhibit 421) 
KCXCRIPISY vise ieis dies dvd vans stn vise fra wn ss 

Addendum to “An Evaluation of North 

Carolina’s 1998 Congressional Districts 
[1997 Plan],” Gerald R. Webster, PhD 
(Exhibit 420) (BXCOIPIS) fein i cvvinnansionss 

Third Affidavit of David W. Peterson, PhD 

(BX A420) iis vei ha a ey 

Guilford County Precincts “Excluded” By 

Elm and Lee Streets (Exhibit 437) ............ 

DEPOSITION TRANSCRIPT EXCERPTS 

Pon NICHOLS Baker... .. i hes cd rns ds sateen 

Garry Farmer Cohen... oo. i... vias Boivin, 

Boy Asberry Cooper, TL oo vaun son enis nis ia vin 

FH Broth oo a A BS as aidan 

  

  

  

 



  

  

  

Ronald FE. Weber, PAD. .0. 0... 743 

Gerald R. Webster, PhD... oo bia 765 

Leshe Winner... o.oo 8 ia i 769 

OTHER 

Materials from Shaw v. Hunt, No. 92-202-CIV-5-BR 

Defendants’ Motion to Consolidate, 
Ociobei 14,1997 , oho fo Lael oo 791 

Defendants’ Memorandum in Support of Motion to 
Consolidate, October 14,1997. 00 a 797 

Order [denying motion to consolidate], 
October 16,1997... i bo os ha 803 

Trial Testimony of Gerry Cohen (excerpis) .......... "® 

Deposition Transcript of Gerry Cohen (excerpts) ...... 815 

Materials from Pope v. Blue, No. 3:92-CV-7 1-PR 

Deposition Transcript of Gerry Cohen (excerpts) ...... 821 

 



  

viii 

[This page intentionally left blank.] 

Eo os 

  
  

   



  
  

DATE 

7/3/96 

7/12/96 

8/27/96 

9/4/96 

4/8/97 

4/18/97 

6/2/97 

6/11/97 

8/11/97 

8/19/97 

10/10/97 

10/17/97 

10/17/97 

10/17/97 

11/25/97 

11/26/97 

12/22/97 

1 

CHRONOLOGICAL LIST OF 

RELEVANT DOCKET ENTRIES 

CD# 

1 

5/6 

27/28 

29 

ENTRY 

Complaint 

Motion with memorandum by Smallwood, 
Ward, Moore, Waddle and Hodges to 

intervene as defendants 

Plaintiffs’ motion to stay action 

Order granting motion to stay 

Plaintiffs’ motion to extend stay 

Order granting motion to extend stay 

Plaintiffs’ unopposed motion to extend 
stay 

Order granting motion to extend stay 

Plaintiffs’ unopposed motion for further 
extension of stay 

Order granting motion for further 
extension of stay 

Plaintiffs’ motion to dissolve stay 

Order granting motion to dissolve stay 

Amended complaint 

Notice of voluntary dismissal by plaintiff 

Weeks 

Answer to amended complaint 

Motion with memorandum by Smallwood, 
Moore, Hodges, Davis, Valder, Offerman, 

Newell, Lambeth and Simkins to intervene 

as defendants 

Plaintiffs’ motion to amend complaint 

 



  

1/15/98 

1/23/98 

1/30/98 

2/5/98 

2/10/98 

2/17/98 

2/18/98 

2/20/98 

2/23/98 

2/25/98 

3/2/98 

3/2/98 

3/2/98 

31 

32 

33 

34/35 

37 

40 

41 

42/43 

44/45 

45 

2 

Order, reassigning/referring case to Chief 

Judge Boyle 

Designation of Three-Judge Court 

Plaintiffs’ motion for preliminary 
injunction 

Plaintiffs’ motion for summary judgment 

with memorandum and affidavits of 
Mortimer, Weatherley, Froelich and 

Everett 

Defendants’ motion to strike preliminary 
injunction motion for lack of supporting 
memorandum 

Plaintiffs’ response to motion to strike 

Defendants’ reply to plaintiffs’ response to 
motion to strike | 

Notice of motion hearing for March 16, 

1998 re: motion for preliminary injunction 

Plaintiffs’ memorandum in support of 
motion for preliminary injunction 

Defendants’ motion to consolidate 
preliminary injunction hearing with 
hearing on cross-motions for summary 
judgment 

Movant - defendant intervenors’ response 
to motion for summary judgment and 
memorandum 

Defendants’ motion for summary 
judgment and memorandum 

Defendants’ response to motion for 
summary judgment 

    

  

 



  

  

3/2/98 

3/2/98 

3/2/98 

3/5/98 

3/19/98 

3/20/98 

3/23/98 

3/23/98 

3/23/98 

3/23/98 

47 

48 

49 

50 

51/52 

53 

54 

55 

55 

3 

Defendants’ affidavit of Bartlett in support 

of motion for summary judgment and in 

. response to motion for summary judgment 

Defendants’ affidavits of Cooper, 
McMahan, Goldfield, Peterson, Stuart and 

~ Webster in support of motion for summary 

judgment 

Defendants’ motion to strike affidavits of 

Everett, Froelich, Williams, Weatherley 

and Mortimer, with memorandum 

Plaintiffs’ motion to continue preliminary 
injunction hearing and time for filing 

materials 

Order granting motion to continue 

preliminary injunction and time for filing 

Defendants’ response to motion for 

preliminary injunction with supporting 
affidavits of Jones, Myrick, Taylor, 

Clayton, Etheridge, Price and Bartlett 

Movant - defendant intervenors’ response 

to motion for preliminary injunction 

Plaintiffs’ response to motion to strike 
affidavits of Everett, Froelich, Williams, 

Weatherley and Mortimer 

Plaintiffs’ response to motion for summary 
judgment 

Plaintiffs’ supplemental memorandum in 
support of motion for summary judgment 
and motion for preliminary injunction 

 



  

3/23/98 

3/23/98 

3/23/98 

3/23/98 

3/23/98 

3/23/98 

3/23/98 

3/27/98 

3/31/98 

3/31/98 

3/31/98 

4/3/98 

4/6/98 

4/6/98 

57 

68 

69 

71 

Plaintiffs’ declaration of Weber and 
affidavits of Everett, Darling, Cirincione, 

O’Rourke and McGee in support of 

motion response, motion for summary 
judgment and motion for preliminary 
injunction 

Affidavit of Thomas Darling by plaintiffs 

Affidavit of Carmen Cirincione by 
plaintiffs 

Affidavit of Timothy O’rourke by 
plaintiffs 

Affidavit of Martin McGee by plaintiffs 

Plaintiffs’ motion to strike affidavits of 
Cooper and McMahan 

Plaintiffs’ motion for judicial notice of 

computer data 

Defendants’ response to plaintiffs’ motion 
for judicial notice of computer data 

Hearing: motions for summary judgment 

and motion for preliminary injunction 

Notice of appearance by Cox, Hodgkiss 

and Stein for movant defendant- 
intervenors 

Subsequently decided authority pursuant 

to LR 4.07 by defendants 

Order granting plaintiffs’ motion for 
summary judgment as to twelfth 

congressional district, granting preliminary 

injunction and granting permanent 
injunction 

Judgment for plaintiffs 

Defendants’ motion for ay of April 3 
court order 

    

  

  

 



  

  
  

4/6/98 

4/6/98 

4/8/98 

4/14/98 

4/14/98 

4/17/98 

4/20/98 

4/20/98 

4/21/98 

4/21/98 

5/22/98 

5/26/98 

5/27/98 

5/27/98 

82/83 

84 

85 

88 

89 

94 

95/96 

97 

98 

5 

Order denying stay 

Defendants’ notice of appeal 

Defendants’ amended notice of appeal 

Findings of fact and conclusions of law re: 
April 3, 1998 order and order denying 
plaintiffs’ motion for summary judgment 
as to first congressional district 

Judgment re: first congressional district 

Defendants’ motion for reconsideration of 
order denying stay and to shorten time for 

plaintiffs’ response, with memorandum 

Plaintiffs’ response to defendants’ motion 

for reconsideration of order denying stay 
and motion to shorten time for plaintiffs’ 

response 

Response by plaintiffs to motion for 

reconsideration of order denying the stay, 

motion to shorten time for plaintiffs to 

respond 

Order denying motion for reconsideration 
of order denying stay, mooting motion to 
shorten time for plaintiffs to respond 

Order on scheduling 

Defendants’ submission of 

congressional redistricting plan 

Renewed motion by Smallwood, Moore, 

Hodges, Davis, Valder, Offerman, Newell, 

Lambeth and Simkins to intervene as 
defendants, with memorandum 

Defendants’ response to motion to 
intervene as defendants 

Plaintiffs’ response in opposition to 
revised 1998 redistricting plan 

1998 

 



  

6/1/98 

6/1/98 

6/9/98 

6/11/98 

6/22/98 

6/22/98 

6/22/98 

6/22/98 

7/17/98 

7/22/98 

7/27/98 

100 

101/102 
103/104 

105 

107 

109 

110 

111 

112 

114 

115/116 

117 

6 

Defendants’ response in support of 1998 
redistricting submission and in opposition 

to plaintiffs’ objections 

Defendants’ affidavits of Cooper (2d), 

McMahan (2d), Cohen, and Bartlett (3d) 
re: memorandum in support of 1998 
redistricting plan 

Motion by USA to file amicus brief 
w/attached amicus brief, with 

memorandum 

Response by plaintiffsto USA’s motion to 

file amicus brief, w/attach. Response to 

Amicus Brief, if the brief is allowed. 

Order granting motion to file amicus brief 
by USA 

Amicus Curiae Brief by USA 

Order granting motion to intervene as 
defendants (Smallwood, Moore, Hodges, 

Davis, Valder, Offerman, Newell, 

Lambeth and Simkins) 

Order directing: 1998 congressional 
elections proceed as scheduled in court’s 
April 21, 1998 order; proceed with 
discovery and trial; parties to submit 
discovery schedules by June 30 

Plaintiffs’ notice of appeal 

Defendants’ motion to consolidate case 

with Daly and to shorten time to respond 
to motion to consolidate, with 

memorandum 

Plaintiffs’ response to motion to shorten 
time to respond to motion to consolidate 

    

 



  

8/11/98 

8/17/98 

10/1/98 

10/5/98 

10/19/98 

5/21/99 

6/21/99 

7/14/99 

7/14/99 

7/20/99 

8/23/99 

8/25/99 

118 

119 

120 

121 

122 

123 

124 

125 

126 

128 

129/130 

7 

Plaintiffs’ response in opposition to 
motion to consolidate case with Daly 

. Defendants’ reply to response to motion to 
consolidate case with Daly 

Joint motion by plaintiffs, defendants and 

defendant-intervenors to stay all 

proceedings until the Supreme Court 
renders a decision in Hunt v. Cromartie 

Clerk notation that an appeal in this case 
was docketed in the Supreme Court on 

September 16, 1998 as No. 98-450 

Order granting joint motion to stay all 
proceedings pending a decision by the 
U.S. Supreme Court in Hunt v. Cromartie, 
98-85 

Opinion from United States Supreme 

Court: Judgment Reversed 

Certified copy of judgment of United 

States Supreme Court 

Plaintiffs’ motion to dissolve stay, 

schedule discovery, expedite the trial, with 

attached proposed discovery plan 

Discovery plan by all parties 

Defendants’ withdrawal of motion to 

consolidate case with Daly 

Order granting motions to dissolve stay, 

schedule discovery, expedite the trial and 

resetting discovery, motion filing deadline, 

and bench trial 

Defendants’ motion to amend answer to 
amended complaint, with memorandum 

 



  

8/31/99 

8/31/99 

8/31/99 

9/13/99 

9/28/99 

9/30/99 

10/12/99 137/138 

10/18/99 139/140 

10/18/99 

10/18/99 141/142 

131 

132 

133 

134 

135 

136 

140 

8 

Order granting motion to amend answer to 

amended complaint. A ninth defense is 

added which states that plaintiffs have 

failed to state a claim for relief on the 
grounds that their claims are barred by the 
Doctrine of Claim Preclusion 

Notice of attorney appearance as 2.05 

counsel for plaintiffs by Douglas 

Markham, Houston, TX. 

Plaintiffs’ motion to amend amended 
complaint by substituting plaintiff Lois 
Weaver in place of Robert Weaver (now 
deceased) 

Order granting motion to amend amended 

complaint. Lois Weaver is substituted for 
her late husband, Robert Curtis Weaver 

Stipulation of dismissal as to plaintiff 
Susan Hardaway with prejudice 

Notice of attorney appearance for plaintiffs 

by Robert Popper, New York, NY 

Plaintiffs’ motion to amend the complaint 

re: plaintiff Linville, with memorandum 

Defendants’ motion for summary 
judgment based on claim preclusion, with 
memorandum 

Defendants’ response to motion to amend 
the complaint re: plaintiff Linville 

Plaintiffs’ motion in limine to exclude the 
testimony of David West Peterson, with 
memorandum 

  

  
  

   



  

  

9 

i 10/20/99 144 Designation of Three-Judge Court adding 
i Judge Lacy Thornburg to the panel of 

. Judge Terrence Boyle and Judge Richard 
Voorhees 

10/22/99 145 Order continuing trial from 11/1/99, to be 
rescheduled by further order 

11/2/99 147 Notice of attorney appearance for plaintiffs 
} by Seth Allen Neyhart as LR 2.05 counsel 
; 11/8/99 148/149 Plaintiffs’ motion for partial summary 
1 judgment as to the affirmative defense of 

claim preclusion, with memorandum 
I 11/8/99 149 Plaintiffs’ response to motion for summary 
1 judgment 

11/8/99 150 Defendants response to motion in limine to 
exclude the testimony of David West 
Peterson 

11/12/99 151  Defendant-intervenors’ response to motion 
in limine to exclude the testimony of 
David West Peterson 

11/12/99 152/153 Motion by Cass Ballenger, Howard Coble, w 
Richard Burr, Sue Myrick, Walter Jones, 
Robin Hayes, and Charles Taylor to file 
amicus brief and make argument, with 
memorandum 

i 11/17/99 156 Plaintiffs’ reply to response to motion in 
limine to exclude the testimony of David 

- West Peterson. 
11/17/99 157 Order granting motion to file amicus brief 

and make argument 

  

  
  
 



  

11/17/99 

11/22/99 

11/24/99 

11/24/99 

11/24/99 

11/24/99 

11/24/99 

11/24/99 

11/24/99 

11/24/99 

11/24/99 

11/29/99 

11/29/99 

11/29/99 

11/29/99 

157 

158 

10 

Order setting bench trial before Chief 

Judge Terrence W. Boyle, Judge Voorhees 
and Judge Thornburg for Monday, 

November 29, 1999 through December 2, 

1999. Pretrial is to be complete by 
November 24, 1999. 

Defendants’ reply to response to motion 
for summary judgment 

Deposition of Joel K. Bourne taken on 
10/4/99 

Deposition of Martin Luther Cromartie 
taken on 9/22/99 

Deposition of Reuben Oscar Everett taken 
on 10/1/99 

Deposition of Jacob Henry Froelich, Jr. 

taken on 9/30/99 | 
Deposition of James Ronald Linville taken 
on 9/30/99 

Deposition of Thomas Chandler Muse 
taken on 10/4/99 

Deposition of Alma Lois Weaver taken on 

10/4/99 

Exhibits to the depositions docketed on 
11/24/99 
Initial pretrial order 

Final pretrial order 

Deposition of Don Nichols Baker taken on 

10/7/99 

Deposition of Gerry Farmer Cohen taken 
on 9/17/99 | 

Deposition of Roy Asberry Cooper, III 
taken on 9/9/99 

  
 



  

11/29/99 

11/29/99 

11/29/99 

11/29/99 

11/29/99 

11/29/99 

11/29/99 

11/30/99 

11/30/99 

11/30/99 

12/1/99 

12/1/99 161 

  

11 

Deposition of Linwood Lee Jones taken on 
9/22/99 

Deposition of David West Peterson taken 
on 9/20/99 
Deposition of William Edwin McMahan 
taken on 10/1/99 
Deposition of Gerald Raymond Webster 
taken on 10/2/99 
Deposition of Charles Joseph Worth taken 
on 10/18/99 

Bench trial held on Monday, November 
29, 1999 before Judge Lacy Thornburg 
(presiding), Chief Judge Terrence W. 
Boyle and Judge Richard Voorhees, sitting 
Oral order denying motion for leave to file 
amicus brief, denying motions, etc. 

Transcript filed - bench trial proceedings 
on 11/29/99 

Bench trial held on Tuesday, November 
30, 1999 before Judge Lacy Thornburg 
(presiding), Chief Judge Terrence W. 
Boyle and Judge Richard Voorhees, sitting 
Oral order by the panel granting motion to 
amend the complaint re: plaintiff Linville. 
The defendants’ motion for summary 
judgment as to Linville is denied. 
Transcript filed - bench trial proceedings 
on 11/30/99 : 
Defendants’/defendant-intervenors’ 
addendum to final pretrial order re: 
designation of deposition of Dr. Ronald 
Weber. 

 



  

12/1/99 

12/1/99 

12/1/99 

12/2/99 

12/8/99 

3/7/00 

3/8/00 

3/10/00 

3/10/00 

3/13/00 

3/13/00 

3/13/00 

3/13/00 

3/14/00 

164 

165 

166 

167 

168 

169/170 

172 

171 

173 

12 

Deposition of Ronald E.Weber taken on 
9/27/99 

Deposition of Ronald E. Weber taken on 
10/18/99. 

Bench trial held on Wednesday, December 

1, 1999 before Judge Lacy Thormburg 
(presiding), Chief Judge Terrence W. 
Boyle and Judge Richard Voorhees, 
sitting. Evidence closed and final 

argument heard. 

Transcript filed - bench trial proceedings 
on 12/2/99 

Amicus curiae brief by Republican 
congresspersons 

Findings of act and conclusions of law 

signed by Boyle, CJ for the majority 
(Boyle and Voorhees). Concurrence and 
Dissent (Thornburg) 

Judgment signed by Skinner, deputy clerk 

Defendants’ motion to stay the injunction 

so that the congressional elections can 

proceed. 

Defendants’ notice of appeal to Supreme 

Court 

Plaintiffs’ response to motion to stay the 
injunction 

Defendant-intervenors’ motion to stay the 

injunction, with memorandum | 

Order denying defendants’ motion to stay 

the injunction 

Defendant-intervenors’ notice of appeal to 
Supreme Court 

Judgment on motion to stay. 

    

  

 



A
A
T
 

13 

EE 3/20/00 174 Plaintiffs’ motion for attorney fees. 
Request that fees be deferred until final 

+ adjudication. 

    

  

 



  

14 

  

[This page intentionally left blank.] 

  
 



15 
STIPULATIONS FROM PRE-TRIAL ORDER (EXCERPTS) 

24. Based on the 1990 Federal Census, 21.97% of the 
State’s total population is African-American. 

25. Based on the 1990 Federal Census, 20.07% of the 
State’s voting age population is African-American. 

26. District 12 in the 1997 plan is 46.67% African- 
American in total population and 43.36% African- 
American in voting age population. 

27. District 1 in the 1997 planis 50.27% African-American 
in total population and 46.54% African-American in 
voting age population. 

28. In creating the 1997 Plan, the General Assembly split 
22 counties. 

29. Six of six counties were split in creating District 12 in 
the 1997 Plan. 

30. While District 12 in the 1992 Plan contained parts of 10 
counties, District 12 in the 1997 Plan contains parts of 
Six counties. 

31. Of'the total population of Congressional District 12 in » 
the 1997 plan, approximately 75% percent comes from 
parts of Mecklenburg, Forsyth and Guilford counties. 

32. District 12 divides the populations of eight cities 
(Charlotte, Greensboro, High Point, Lexington, 
Salisbury, Statesville, Thomasville and Winston 
Salem). 

33. The dispersion compactness score of District 12 was 
0.045 in the 1992 Plan. 

34. The dispersion compactness score of District 12 is 
0.109 in the 1997 Plan.   
 



  

33. 

36. 

37. 

40. 

48. 

16 

Approximately 25.7% of the African-Americans who 

were in District 12 in the 1992 plan were moved out of 

District 12 in the 1997 plan. Approximately 74.3% of 

the African-Americans who were in District 12 in the 

1992 plan continue to be in District 12 in the 1997 plan. 

Approximately 31.6% of all persons who were in 

District 12 in the 1992 plan were moved out of District 

12 in. the 1997 plan. Approximately 68.4% of all 

persons who were in District 12 in the 1992 plan 

continue to be in District 12 in the 1997 plan. 

41.6% of the geographic area assigned to District 12 in 

the 1992 Plan remained assigned to District 12 in the 

1997 Plan. | 

On average, 76.4% of the geographic area in each of 

North Carolina’s twelve congressional districts in the 

1992 Plan was in the corresponding districts in the 

1997 Plan, ranging from a high of 96.7% for District 11 

to a low of 41.6% for District 12. 

* k *k 

Each of the districts of the 1997 Plan is composed of 

contiguous territory. 

  
 



  

52, 

53. 

54. 

3s. 

17 

For purposes of one person, one vote, a plan with 

almost zero deviation would contain approximately 

552,386 persons in each of North Carolina’s 12 

congressional districts, based on the 1990 Federal 

Census. 

Registered Democrats are prohibited from voting in 

Republican primaries and registered Republicans are 

prohibited from voting in Democratic primaries at the 

present time, and during all times relevant to this case. 

Guilford County Precinct 11 is not within District 12 

but is contiguous to that district. The precinct is 

17.57% African-American in total population and 

17.89% African-American in voting age population. 

Democrats comprise 62.32% of registered voters. 

Within this precinct, the Democratic candidate Gantt 

received 67.51% of the vote in the 1990 senatorial 

contest, the Democratic candidate Rand received 

61.68% of the vote in the 1988 Lt. Governor contest, 

and the Democratic candidate Lewis took 52.98% of 

the vote in the 1988 Court of Appeals contest. 

Guilford County Precinct 14 is not within District 12 

but is contiguous to that district. The precinct is 

15.19% African-American in total population and 

15.24% African-American in voting age population. 

Democrats comprise 58.14% of the registered voters. 

Within this precinct, the Democratic candidate Gantt 

received 86.91% of the vote in the 1990 senatorial 

contest, the Democratic candidate Rand received 

65.66% of the vote in the 1988 Lt. Governor contest, 

 



  

56. 

57. 

58. 

18 

and the Democratic candidate Lewis took 63.92% of 

the vote in the 1988 Lewis/Smith Court of Appeals 

contest. 

Guilford County precinct 17 is not within District 12 

but is contiguous to that district. The precinctis 9.09% 

African-American in total population and 8.64% 

African-American in voting age population. Democrats 

comprise 61.86% of the registered voters. Within this 

precinct, the Democratic candidate Gantt received 

65.08% of the vote in the 1990 senatorial contest, the 

Democratic candidate Rand received 61.68% of the 

vote in the 1988 Lt. Governor contest, and the 

Democratic candidate Lewis took 58.19% of the vote in 

the 1988 Lewis/Smith Court of Appeals contest. 

Forsyth County Brunson Elementary School Precinct is 

not within District 12 but is contiguous to that district. 

The precinct is 27.83% African-American in total 

population and 25.88% African-Americanin voting age 

population. Democrats comprise 65.75% of the 

registered voters. Within this precinct, the Democratic 

candidate Gantt received 75.46% of the vote in the 

1990 senatorial contest, the Democratic candidate Rand 

received 66.30% of the vote in the 1988 Lt. Governor 

contest, and the Democratic candidate Lewis took 

65.84% in the 1988 Lewis/Smith Court of Appeals 

contest. 

Forsyth County Hanes Community Center precinct is 

not within District 12 but is contiguous to that district. 

The precinct is 32.06% African-American in total 

  

 



  
39. 

60. 

19 

population and 28.80% African-Americanin voting age 
population. Democrats comprise 76% of the registered 
voters. Within this precinct, the Democratic candidate 
Gantt received 75.77% of the vote in the 1990 
senatorial contest, the Democratic candidate Rand 
received 71.68% of the vote in the 1988 Lt. Governor 
contest, and the Democratic candidate Lewis took 
69.18% of the vote in the 1988 Lewis/Smith Court of 
Appeals contest. 

Forsyth County Latham Elementary School Precinct is 
not within District 12 but is contiguous to that district. 
The precinct is 19.82% African-American in total 
population and 17.41% African-Americanin voting age 
population. Democrats comprise 65.25% of the 
registered voters. Within this precinct, the Democratic 
candidate Gantt received 54.85% of the vote in the 
1990 senatorial contest, the Democratic candidate Rand 
received 53.86% of the vote in the 1988 Lt. Governor 
race, and the Democratic candidate Lewis took 5 5.87% 
of the vote in the 1988 Lewis/Smith Court of Appeals 
race. 

Mecklenburg County Precinct 10 is not within District 
12 but is contiguous to that district. The precinct is 
6.9% African-American in total population and 5.42% 
African-American in voting age population. Democrats 
comprise 63.45% of the registered voters. Within this 
precinct, the Democratic candidate Gantt received 
73.01% of the vote in the 1990 senatorial contest, the 
Democratic candidate Rand received 62.66% of the 

 



  

61. 

62. 

63. 

74. 

20 

vote in the 1988 Lt. Governor contest, and Democratic 

candidate Lewis received 55.78% of the vote in the 

1988 Lewis/Smith Court of Appeals contest. 

Mecklenburg County precinct 21 is not within District 

12 but is contiguous to that district. The precinct is 

10.51% African-American in total population and 

7.84% in voting age population. Democrats comprise 

59.45% of the registered voters. Within this precinct, 

the Democratic candidate Gantt received 60.11 of the 

vote in the 1990 senatorial contest, the Democratic 

candidate Rand received 52.32% of the vote in the 1988 

Lt. Governor race, and the Democratic candidate Lewis 

took 48.30% of the vote in the 1988 Lewis/Smith Court 

of Appeals race. 

The eastern and western portion of Congressional 

District 9 are linked by an area along the South 

Carolina border which constitutes the southern portion 

of Mecklenburg Precinct 77. 

Mecklenburg Precinct 77 is split in the 1997 

Congressional District plan between District 9 and 

District12. 

Congressman Watt, an African-American, was re- 

elected in District 12 under the 1998 plan with 56% of 

the vote, with 82,305 votes to 42% for Republican 

“Scott” Keadle, a white candidate, with 62,070 votes, 

      

  

 



  

Po 
21 

with others, of unknown races, receiving 2% of the 
vote, with 2,713 votes. 

75. Congressman Watt (Charlotte, NC) won the 1998 
Democratic primary in District 12 under the 1998 plan + with 84% of the vote, with 12,160 votes to 16% for . - Ronnie Adcock (China Grove, NC), a white Democrat, » 2 : with 2,275 votes.   

  
 



  

22 

[This page intentionally left blank.] 

  
 



  

  

23 

OPENING STATEMENT OF TIARE B. SMILEY (EXCERPTS) 

[*30] Ms. Smiley: In District 12 we contend that race did not 
predominate, that race was drawn for pure partisan reasons, as 
the Supreme Court said the State may do. We're not arguing 
that's a compelling state interest. We think the Supreme Court 
told us in Shaw you cannot draw a Section 2 district, therefore 
we're not arguing compelling [*31] state interest. 

Our defense to District 12 is entirely separate. It's 
purely a factual matter and a matter a state is required to draw. 
I'm sorry if I didn't make it clear. That's entirely separate and 
the two parts of the state do end up being analytically just very 
different, but we're not attempting to say those are compelling. 

With District 1, we don't believe you have to reach 
compelling state interest. That's merely race consciousness. 
Acceptance of race is important in this State. If you reach strict 
scrutiny, we believe we can establish that there is a compact 
district. The State drew that compact district. The other 
Gingles being conceded and we believe tailoring has been 
achieved. I'm sorry if I did speak too quickly. We're used to 
thinking about these questions. I probably rushed over that 
point. 

Judge Thornburg: Call your first witness then. 
Mr. Everett: Can I ask for clarification in connection 

with the last colloquey? As I understand it from the tenor of 
the opening statement, if we prove predominate racial purpose 
as to the 12th District, there's no contention there will be a 
restriction. I think the Supreme Court, in its opinion noting the 
matter had not been litigated before, I presume that was not 
subject -- there was no contention by the State as to 

 



  

24 

[*32] compelling government issue for the 12th District if it 

were predominately race based. I would like to clarify that. 

Obviously that will affect what we need to prove. 

Ms. Smiley: The State has no reason to relitigate Shaw. 

We don't contend no compelling motive. We don't believe the 

State was required the same basis, strong basis in evidence to 

believe what had to draw a district in that area. There may be 

issues of racial affairs necessary, and other matters. Race is 

important in that North Carolina, the Democrats in that area, 

are African American. We are not contending we have a 

Voting Rights Act compelling state interest as a defense in that 

area. 

  

 



ary r——————— ——_—_—_ cur 

25 
HAMILTON HORTON TRIAL TESTIMONY (EXCERPTS) 

[*32] A. My name is Hamilton Horton. I reside in 

Winston-Salem. 

Judge Thornburg: You will have to turn up the mike. 
Let's try it again. 

The Witness: My name is Hamilton Horton. I reside in Ss 
Winston-Salem. 

[*33] Q. What business or profession are you in? 

A. I'm a lawyer. 

  

[*34] Q. And have you had occasion to serve in the North 

Carolina General Assembly? 

A Yes, sir. 

Q. And if so, during what period or periods of time did you 
serve? 

A. Let's see. I was elected in 1969 and served in the House % 
in '71, in the Senate in '73, '73 in the Senate and again elected 

in 1994 to the Senate and reelected in '96, I guess it would be, 

and am still there. 

Q. So you are currently a senator? 

A. Yes, sir. 

%* % % 

[*35] Q. In the course of your service in 1997, to what 
extent [*36] were you able to follow the development of a 

Senate Redistricting Plan?   
 



  

26 

A. Actually, very little. That was sort of handled. by a 

couple of people of the other party who did most of the work. 

Seemed to me in camera. In any event, there was no 

involvement on my part or anyone else I knew on the 

Republican side. 

Q. How many senators are there in the North Carolina 

Senate? 

A. 50. 

Q. So what extent then were most senators in the Senate 

during 1997 involved in the formulation of the 1997 Plan? 

A. Several on our side of the aisle. It was very, very little, 

if any. I don't know but I would suspect a fairly liberal amount 

on the other side. 

%* % % 

[*36] Q. In the course of your service as senator and: 

running for office, have you become familiar with the different 

precinct in Forsyth County? 

A. To some extent, yes, sir. 

Q. Have you become familiar with their racial 

composition? 

A. Yes, sir, pretty much. 

[*37] Q. Have you become familiar with the political 

performance of the precinct there in Forsyth County? 

A. Yes. 

Mr. Everett: Your Honors, at this time we would like to 

use and examine him with what is Exhibit 108. My 

understanding is the one in the book before you that you all 

have is slightly different in coloration and what we will use is 

  
 



  

27 

the map that was used at the hearing in Morganton back in 

1998. 

Judge Thornburg: That's Plaintiff's Exhibit 108? 

Mr. Everett: Yes, sir, I believe that's correct, Your 

Honor. That's a Joint Exhibit 108. 

Q. Now, I'm going to show you a map. Can you see this? 
A. Yes, sir. : pS 

Q. Ask you what that represents, if you know? 

A. Apparently it is a map of Forsyth County, principally 

the center section would be the map of Winston-Salem. 

Q. Let me ask you this: in Forsyth County, are African 

Americans the residences clustered or concentrated or are they 

dispersed throughout the county? 

A. They are not dispersed evenly. There are pockets here 

and there -- but the main population center lies in the eastern 

part of Winston-Salem. Generally if you take the dividing line 

of the Cherry Marshall Expressway and [*38] University 

Parkway and everything to the east of that would tend to be 
heavy concentration of black and to the west would be a 

concentration of white population. 

Q. So that in Winston-Salemitselfthey are concentrated in 
this particular area? 

A. That's correct. 

Q. Does the area shown in the red portion of the map tend 

to conform, to your knowledge, of the precinct that are majority 

black or substantially black residents or population? 

A. I really can't see it that well from here. May I step 
down? 

Judge Voorhees: You may. 

(Witness leaves the witness stand).   
 



  

28 

Q. If you have a magnifying glass? 

A. This does not have the street names on it, so its very 

difficult to be precise, but this does clearly delineate the eastern 

and western portions of Winston-Salem. 

Q. And -- 

A. I gather from this that this would be the heavy black 

population, as I've testified. 

Q. This is listed as being 40 to a 100 percent black and 

insofar as Winston-Salem is concerned, is there any of those 

red 40 to 100 percent black precinct, which is not 

[*39] included in the 12th District? 

A. I gather the blue line -- yes, sir, there is this one up here 

at the extreme northwest which appears to be outside of it and 

that appears to be the only one. This portion doesn't have a 

number on it, but looks like 61.65 percent. 

Mr. Stein: Your Honor, we have stipulated that this 

exhibit is authentic, that it accurately represents what it 

purports to represent and suggest that this witness is simply 

going up and reading from Mr. Everett's exhibit and not 

testifying from personal knowledge. And this is a joint exhibit. 

Judge Thornburg: We will let Senator Horton testify, of 

course, because he is knowledgeable, but it would expedite 

matters if you ask is this an accurate representation. 

Mr. Stein: We have agreed to that. 

By Mr. Everett: 

Q. Anything you know about the one precinctthat's outside 

of the district? 

A. The one that is outside of the district. 

(Witness returns to the witness stand). 

  

 



  

29 

That is not a heavy populated section of town. It's an extension 

of -- I believe, again, I can be corrected because the names of 

the streets aren't on the map, but [*40] it’s my belief it's 

Palestine Avenue out there, which is a line of trailers, for 

several miles woods, are some streets back in there, small, very 

nice houses, I would say on about half acre lots. But in general 

that big box are stores and parking lots seem to dominate that 

area. It's not heavily populated, I guess is what I'm trying to 

say. 

Q. Senator, let me ask you this. During the 1997 period -- 

while the '97 Redistricting Plan was being considered, did you 

have occasion to discuss the plan and its formulation with 

members of the General Assembly? 

A. Just in passing, but not in any official capacity. 

Q. Did you discuss it with both members of the House and 

Senate? 

A. Oh, yes. 

Q. Let me ask you this then: from your observation of this 

map and your knowledge of the precinct in Forsyth County that 

are included in the 12th District, can you state whether you 

formed an opinion as to the predominate motive of the General 

Assembly for drawing the boundaries of the 12th District in 

Forsyth County as drawn? 

Mr. Stein: Objection, Your Honor. This witness is not 

here as expert witness. The issue before the Court is based on 

all the evidence that's presented. Whether the plaintiffs, in fact, 

prove their case. Everybody in [*41] North Carolina can 

express an opinion, but it's for the Court to decide it based on 

the evidence. He isn't offered as an expert witness. It is not the 

 



  

30 

function of one legislator to ascribe motives to the rest of the 

General Assembly. 

Mr. Everett: May I respond, Your Honor? 

Judge Thornburg: The objection is overruled. Let's 

move along. 

By Mr. Everett: 

Q. Please answer it. Do you have an opinion? 

A. I do. 

Q. What's that opinion? 

A. Seems to me, in my opinion, is that it was an attempt to 

put the black population of Winston-Salem in the 12th District. 

Q. And with respect to predominate motive, is it your 

opinion that was a predominate motive? 

A. Yes, sir. 

Q. Now, with respect to the 1998 plan, was there any 

changes in the grouping of the precinct in Winston-Salemas to 

African American, heavy African American percentage or did 

that remain the same -- 

‘Mr. Stein: Objection as to relevance. 

Judge Thornburg: Overruled. 

A. I'm afraid you will have to show me the map to be 

[*42] able to tell you that. 

Q. From the map of Forsyth County that I've shown you 

and the map of the 12th District as a whole, which is under 

here, I'd like to ask you and also your discussions prior to the 

enactment of the plan: Did you form an opinion as to the 

motives of the General Assembly for drawing the boundaries 

of the 12th District as it was drawn? 

Mr. Stein: Objection. 

Judge Thornburg: Overruled. 

  

 



  

31 

A. I can speak insofar as the concentration of the 

population from personal experience only with respect to 

Forsyth County. And I do know that the portions in thel2th 

District were those that are most exclusively black. 

Q. Thank you, Senator. 

* %* % 

[*42] Q. Senator Horton, I think you've told us that you 

weren't on the Redistricting Committee? 

A. That's right. 

Q. You didn't participate with those who were drawing the 

plan? 

A. No. 

Q. And you say there was principally Democrats in the 

[*43] Senate working on the plan? 

A. That's right. 

Q. In the House, on the other hand, there was a Republican 

majority in the House and a Republican Chair of the 

Redistricting Committee over there? 

A. I believe that's right. 

Q. Did you confer with Representative McMahan who was 

the Chair in the House of the Redistricting Committee about 

the plan? 

A. No, sir. 

Q. Did you speak at any public hearings about the plan? 

A. No, I did not. 

Q. Speak on the floor of the Senate about the plans before 

the Senate? 

 



  

32 

A. I don'trecall. I very well may have, but I can't tell you 

yes or no. 

%* % % 

[*45] Q. Isn't it true in Forsythe County there are 

precincts where the voting day results show higher in some 

elections, higher votes for Republicans than the Republicans 

registration? 

A. Yes, sir. 

Q. But there are precincts with majority of Democratic 

registration where Republicans sometimes prevail? 

A. I think that's true all over the State. 

  

 



33 
STEVEN RAY WOOD TRIAL TESTIMONY (EXCERPTS) 

[*48] Mr. Everett: We call -- Your Honor, the plaintiff calls 

Steve Wood. 

Steven Ray Wood, being first affirmed, testified as follows 

during Direct Examination: 

By Mr. Everett: 

Please state your name and residence. 

Steven Ray Wood, 1221 North Main Street in High 

How long have you resided in High Point? 

Since 1978. 

That's in Guilford County? 

Yes, sir, that's correct. 

What business or occupation are you in? 

I'm a minister and educator and also a singer and song 

P
E
L
P
O
P
O
P
R
I
P
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5 
5 

What sort of education do you have for your particular 

business? 
A. I'm a college graduate. Graduated from John Wesley 

College there in High Point. Also graduate of Edgeburg 

College, Masters Degree in History at the University of North 

Carolina Greensboro. Masters of Divinity Degree of Houston, 

Graduate School of Theology, Houston, Texas, and Doctorate 

at Lutheran Center. 

Q. Have you ever served in the General Assembly of North 

[*49] Carolina and, if so, at what time? 

A. Yes, sir. I served one term in the 1985 session, was 

involuntarily -- did not serve that next term, but came back in   
 



  

34 

1988 and served in the House since that time. And then my 

seventh term now. 

Q. During your servicein the General Assémbly from what 

district were you elected, what county or cities are in that 

district? | 
A. Initially I was elected from House District 28, which 

was comprised exclusively of some two member district 

precincts in Guilford County. Since 1992, I served in House 

District 27, which includes parts of Guilford and parts of 

Davidson County. 

Q. What's your political party? 

A. Republican. 

Q. Now, in the 1997 House of Representatives for the 

General Assembly, state whether you held any office or 

position and, if so, what that was? be. 

A. In 1997 session? 

Q. Right. 

A. Yes. I was a member of the House and also served as 

Speaker Pro Tem of the House that session. 

Q. State whether or not you had any committee 

memberships. 

A. As Speaker Pro Tem under the House rules I served as 

[*50] a member of each committee of the House. 

Q. While serving the General Assembly in 1997 and '98, 

please state whether or not you followed closely the 

development of one or more of the congressional redistricting 

plans. 

A. Well, 1 followed it as closely as I could. As you know, 

the general public and most folks who followed that, became a 

  
 



  

35 

little confusing after awhile with all the plans, but I did try to 

follow it closely. Yes. 

Q. Did you have any individual reasons somewhat unique 

to you for following the development of the congressional 

redistricting plan? 

A. Well, I did. I had interest in possibly running for 

Congress in one of those, depending on how the redistricting 

took place, so I had some interest from that standpoint 

certainly. 

Q. And did you, in fact, at a later time run for Congress? 

A. Yes, I did. 

Q. Now, before the General Assembly enacted a 

redistricting plan at the end of March 1997 to replace the 1992 

Plan that the Supreme Court declared unconstitutional, did you 

hear a debate and discussion about the plan on the floor of the 

House of Representatives and among the members of the 

General [*51] Assembly? 

A. Yes, I did. 

Q. And did you participate in the discussionsin that regard 

before the 1997 Plan? You talked to others as to the plan? 

A. Yes. 

Q. Now, let me ask you this: in the course of your service 

in the General Assembly, and in campaigning for election to 

the General Assembly, have you become familiar with the 

precincts in Guilford County? 

A. Yes, I have a good general knowledge of the nature of 

precincts in Guilford County. 

Q. As part of the process of becoming familiar with 

different precincts in Guilford County, did you become familiar 

with their racial composition? | 

 



  

36 

A. Yes. ; 

Q. And did you become familiar with the political 

registration and political performance of different precincts in 

Guilford County? 

A. Yes, in a general sense, as far as specific statistics per 

precinct and that sort of thing. I could not recite those, but in 

terms of general knowledge and performance, voter 

registration, yes, sir. 

[*55] Q. Mr. Wood, from looking at the map and your 

general knowledge in High Point there, there's a concentration 

of African Americans and in Greensboro there's a concentration 

and otherwise the population of Guilford [*56] County is 

mostly white? | 

A. Yes. In general terms, I think that's correct. Those two 

areas on the map though represent the heavy concentration of 

the African American voters in Guilford County, that's correct. 

Q. Now, for the map and your personal observations and 

knowledge of the precincts and the population there in Guilford 

County, could you state whether you formed an opinion as to 

the predominate voters of the General Assembly for drawing 

the boundaries that were drawn in the 12th District? 

Ms. Harrell: Objection. 

A. Repeat the question. 

Q. Absolutely. I asked whether from the map from your 

personal observation and your knowledge of the precincts there 

in Guilford County, could you state whether you formed an 

opinion as to the predominant motive of the General Assembly 

  
 



  

37 

for drawing the boundaries of the 12th District in Guilford 

County as they were drawn? 

A. In Guilford County, yes, I have. 

Q. What is that opinion? 

A. Well, my opinion is that -- 

Judge Voorhees: Wait just a minute. 

Mr. Everett: Your Honor, my colleague says on your 

maps there is a red line over on that side. 

[*S7] Judge Voorhees: Repose that question. 

By Mr. Everett: 

Q. Okay. From the map, from your personal observations 

and your knowledge of the precincts there in Guilford County, 

could you state whether you have formed an opinion as to the 

predominant motive of the General Assembly for drawing the 

boundaries of the 12th District in Guilford County as they were 

drawn? 

Ms. Harrell: Renew our objection for the record. 

Judge Thornburg: Overruled. 

A. Yes, I have formed an opinion. 

Q. What is that opinion? 

A. My opinion is that they were included in the 12th 

District to encompass certain of those clusters; those two 

clusters of votes in the High Point area and the Greensboro area 

to include those in the 12th District. 

Q. Was it your opinion then the predominate motive was 

racial? 

A. Yes, it is. 

Q. In the 1997 Plan, there were five other counties in 
addition to Guilford County, and I ask you whether you are 

 



  

38 

familiar with those other counties and the way they were 

divided in the 1997 Plan? : 

A. I'm familiar with them, obviously not as familiar as 

[*S8] I am with Guilford County, but somewhat familiar with 

those other counties. : 

Q. Were those -- did you at some point run for the 

Congress? 

A. I did. 

Q. And in what district did you run and when? 

A. I ran in the 12th District in the Republican primary in 

the 12th District in 1998. 

Q. And did the 12th District, as that's constituted, consist 

of the five other counties besides Guilford County ial were 

included in the 1997 Plan? 

A. Yes, as I recall that's correct. 

Q. So Forsyth, Davidson, Rowan, Mecklenburg -- and 

Mecklenburg, Iredell, Rowan, Davidson, Forsyth, they were 

included? 

A. That's correct. 

Q. Now, with respect to the 1997 Plan, and the dispersion 

or the allocation of the precincts, could you state whether you 

formed an opinion, from your observations of the precincts and 

these other five counties from the map and from the discussions 

that preceded the drawing of the enactment of the 1997 Plan, 

did you form an opinion as to the predominate motive for the 

division of the other five counties as they were drawn in the 

1997 Plan? 

[*59] A. Yes, I did form an opinion. 

Ms. Harrell: Objection. Could we have a standing 

objection to the testimony about opinions as to the predominate 

  
 



  

39 

motive and grounds? It is opinion without adequate 

foundation. 

Judge Thornburg: I'm not offended by your making it. 

You just go ahead. That's no problem. 

Ms. Harrell: Whichever way the Court prefers. 

Judge Thornburg: Just go right ahead. 

By Mr. Everett: 

Q. What was that opinion? 

A. My opinion is that it was drawn to maximize to the 

fullest extent possible and include as many of those African 

American votes in those counties as possible. 

Q. Is it your opinion that was a predominate move? 

A. Yes. 

Ms. Harrell: Objection. 

Judge Thornburg: Overruled. 

Q. Now, why did you run for Congress in the 12th District 

when you are no longer a resident of that district? 

A. Well, in the original -- I say the original 12th District, 

as constituted in the '98 Plan, prior to that time it included some 

portions of my House District so it gave me a basis upon which 

to consider running for that [*60] House -- that congressional 

seat at that time. 

Q. Did you have occasion while you were serving there 

Pro Tem in 1997 to hear discussions about the First District in 

the northeastern part of the State? 

Ms. Harrell: Objection, hearsay, unless there's some 

particular identification as to what kind of discussion and its 

relevance. 

Mr. Everett: Let me rephrase that then. 

By Mr. Everett: 

 



  

40 

Q. Do you recall whether in connection with the drawing 

of the First District there was discussion in the General 

Assembly concerning preclearance and approval by the 

Department of Justice? 

Ms. Harrell: Objection, hearsay, no foundation, 

relevance. 

Judge Thomburg: Go ahead. Overruled. 

A. Well, yes, I do recall that in general that the feeling was 

that -- 

Judge Thornburg: Well, sustained. Sustained. 

By Mr. Everett: 

0. From your campaigning and your participation in the 

electoral process, have you formed an opinion to the extent to 

which African American voters in Guilford County voted for 

Democratic candidates versus Republican candidates? 

[¥61] A. Yes, I have formed an opinion. 

Q. What is that opinion? 

A. My opinion is that overwhelming, predominately the 

votes are for Democratic candidates as opposed to Republican 

candidates. 

Q. Have you formed an opinion as to the extent to which 

the percentage of registered African American voters who vote 

for Democratic candidate increases if the candidate is an 

African American? 

A. I have an opinion and it is yes, that's true. 

Q. What is your opinion? 

A. It is my opinion that they vote predominately for 

Democratic candidates. 

Q. Now, from your campaigning and your participation in 

the electoral process, have you formed an opinion to the extent 

  
 



  

41 

to which, in North Carolina State, African Americans who are 

voting vote for Democratic candidates against Republican 

candidates? 

A. I have. 

Q. What is that opinion? 

A. Is that they vote overwhelmingly in favor of 

Democratic candidates based upon my observation of the 

voting performance. 

Q. Could you state whether you have an opinion as to 

whether the percentage of registered African Americans who 

[*62] vote for Democratic candidate increases if the 

Democratic candidate is African American? 

A. It is my opinion, from my own research and 

observation, the trend is they vote, the turn-out is heavier and 

stronger. 

% % % 

[*62] Q. Representative Wood, I have a few questions for 

you. I believe you said you were Speaker Pro Tem in 1997; is 

that right? 

A. In the ‘97, ‘98 session, that's correct. 

Q. Okay. And you are a Republican yourself; is that right? 

A. That's correct. | 

Q. And do you recall what the division between 

Republicans and Democrats in the House was in 1997? 

A. Are you referring to the North Carolina House itself, of 

121 members in the North Carolina House? 

Q. Right. 

A. Yes, I do. 

 



  

42 

Q. What was that division? a 

A. There were 61 Republicans and 59 Democrats, as I 

recall. 

Q. Okay. And isn't it true that you were elected Pro 

[63] Tem with a vote of 58 Democrats and only 3 

Republicans? 

A. That is true. 

Q. And isn't it also true that after that you were excluded 

from the Republican caucus? 

A. That is not true relative to the 1997, ‘98 session, no. 

Q. It is not true? 

A... No. 

Q. And isn't it true that as Speaker Pro Tem you were not 

assigned to preside over the House and rule the gavel, so forth, 

by the Speaker at any time that session? 

A. That is true. 

Q. And when you ran for Congress in 1998, do you recall 

how many Republican candidates there were in the primary? 

A. There were a whole lot, it seems to me, five or six. 1 

think, more specifically, I think five or six at least. 

Q. And is it consistent with your memory out of six 

Republican candidates you came in fifth? 

A. That's correct. 

Q. And that is it also true that you received 800 votes out 

of more than 12,000? 

A. I think that's correct, around 7 percent. I didn't do well 

as I hoped to. 

Q. So there were other candidates in the primary who were 

selected by most of the voters that voted in the [*64] primary 

and you were not one of them; is that right? 

  
 



  

43 

A. Well, I finished fifth in the primary elections, that's 

correct. 

Q. Now, as Speaker Pro Tem, officially you were an 

exficio member of all House committees at that time; is that 

right? : 

A. That's right. 

Q. And if the minutes that are in the record as stipulated 

exhibits show that there were four House committee meetings 

in 1997 involving redistricting and that you only attended one 

of them, would that be true? Do you deny that? 

A. I don't recall if I attended all of the meetings. That may 

be correct. 

Q. Okay. And you didn't speak at that meeting either, did 

you or do you recall? 

A. I don't recall if I spoke at the specific meeting to which 

you refer about. 

Q. You wouldn't dispute the minutes on that basis, would 

you? 

A. Not from what I recall at this moment, no. 

%* % *% 

[*64] Q. Well, then 58 out of what, 59 Democrats voted 

for you [*65] to be the Speaker Pro Tem? 

A. That's correct. 

Q. So you had a good relationship with the Democrats? 

A. I would like to think so, yes, sir. 

Q. You knew pretty well why they were doing things such 

as redistricting, didn't you? 

A. Yes,sir, I did. 

 



  

44 

Q. And is your testimony, as to the predominate motive, 

take that into account what you picked up from Republicans 

and Democrats? 

Ms. Harrell: Objection. 

Judge Thornburg: Overruled. 

Yes. 

When you ran, you ran under the '98 Plan? 

That's correct. 

And that was one for which your home county had been 

cut out? 

A. That's correct. | 

Q. By the way, if you saw a document that refers to the 

Greensboro black community, would you be able to identify 

what that Greensboro black community is? 

A. You say if I saw a document if -- 

Q. Let's see an e-mail which refers to the Greensboro black 

community being placed in the 12th District or removed from 

the 12th District? 

[¥66] A. If you mean in a geographic and demographic 

context, yes, I think -- yes, I believe I could. 

Q. Do you think you could go to Greensboro and find and 

identify where that Greensboro black community was located? 

A. Yes. 

oP
» 

LO
o»

 

  
 



  

45 

JOHN HUGH WEATHERLY TRIAL TESTIMONY (EXCERPTS) 

[¥66] Mr. Everett: John Weatherly. 

John Weatherly, being first duly sworn, testified as follows 

during Direct Examination: 

By Mr. Everett: 

Q. Mr. Weatherly, I understand you have a slight hearing 

impairment. I'll try to speak louder so you can hear. I'm under 

the same boat, so I appreciate you doing the same. 

State your name and your residence and how long you 

resided there. 

A. My name is John Hugh Weatherly, reside 142 Quail 

Hollow Drive, Kings Mountain. I lived at that address for 

22 years. 

Q. And what business or profession, if any, are you in? 

[*67] A. I'm retired. I retired as an industry forester for 

Bow Water Paper Company after a 35 year career as an 

industrial forester. 

Q. Have you participated in politics in any way, and if so, 

in what way? 

A. When 1 lived in Catawba County, I was a member of 

the County Board of Commissioners; in Cleveland County, I 

served in the General Assembly representing the 48th House 

District for eight years for the years '89, '90 and '93 through '98. 

Q. And in the course of your service in the General 

Assembly, could you state whether or not you had occasion to 

serve on any commission or study group concerned with the 

electoral process in North Carolina? 

 



  

46 

A. I was a member of the Election Law Reform-Study 

Commission and the House Election Laws Committee. 

Q. In that capacity, did you develop a special interest in 

redistricting process in North Carolina? 

A. I did. I had to sponsor two pieces of legislation so I had 

more than a passing interest in the currents of the elections. 

Q. During what period of time were you serving in that 

study group and how many people were involved? 

A. ‘96 and ‘97. 

Q. So that was about the time the '97 Redistricting Plan 

[*68] was being prepared? 

A. Yes. 

Q. What is your political party, by the way? 

A. Republican. 

Q. Now, in connection with the -- with your interest in 

redistricting, did you later have occasion to propose legislation 

concerning the redistricting process? 

A. Related -- I had two pieces. First piece concerned 

limited voting and appointment of elected positions without 

standing for election; that's related somewhat. It's a matter 

concerning Cleveland County in particular. But I also 

sponsored legislation in 1993 that would, by constitutional 

referendum, established independent nonpartisan redistricting 

commission. 

Q. So then you are very concerned with the redistricting 

process? 

A. Yes. 

  

 



  

47 

[*70] Q. All right. Now, were you familiar with the 

discussions of the General Assembly about the formation of the 

12th District in 1997? 

A. Yes, I was. 

Q. And were you familiar with the boundaries generally of 

the 12th District in Mecklenburg County? 

A. Not intimately, but I was aware that they were being 

redrawn to meet a requirement. 

Q. Now, let me ask you this, and this is with respect to the 

‘97 Plan: from your knowledge of the precincts there and the 

discussions in the General Assembly and otherwise, with 

respect to the ‘97 Plan, did you form an opinion as to the 

predominate motive for the dividing of Mecklenburg County 

between the 12th and the 9th Districts as it was divided 

in 1997? 

A. Yes. There was overriding being directed to make a 

district that would be predominately racial. 

Q. Was it your -- was it your opinion that the motive for 

splitting the Mecklenburg County in that way was 

predominately racial? 

Mr. Stein: Objection. 

[*71] Judge Thornburg: Overruled. You may answer. 

A. Answer? 

-Q. Yes. 

A. Yes, it was. But was it was definitely racial. It had to 

be to meet the requirement that the new district would be 

comprised, yes. 

Q. Now, with respect to the rest of the 12th District, which 

is shown here in this larger map, did you become familiar back 

 



  

48 

in 1997 before the ‘97 Plan was adopted with the boundaries 

generally of the 12th District? 

A. I observed the changes made and was very much under 

the impression that the original ‘92 version had been 

characterized as being bizarre and this version was somewhat 

less bizarre, was the general discussion. 

Q. With respect to the predominate motive for drawing the 

12th District, as just shown here on this map, which is up here, 

did you form an opinion as to the predominate motive for 

drawing the 12th District in that manner? 

Mr. Stein: Objection. 

Judge Thornburg: Overruled. 

A. Yes. 

Q. What is that opinion? 

Mr. Stein: Objection. 

Judge Thornburg: Overruled. 

A. It was the requirement being met that it would be a 

[*72] racially gerrymandered district. 

Q. In other words, that was the predominate motive for 

doing so? 

A. Yes, sir. 

[* 72] Q. Mr. Weatherly, I may have misunderstood you. 

I understood you to say that in the ‘97 Plan that Cleveland 

County was split between the 9th and the 11th District? 

A. It's my recollection at the moment, yes. 

Q. Let me -- before we go to that, let me show you what 

is a joint exhibit. This is the ‘92 Congressional Plan that the 

  
 



  

49 

Supreme Court found unconstitutional. In that plan, it seems 

to show that the 9th District included Mecklenburg, parts of 

Mecklenburg, all of Gaston, and parts of Cleveland. Do you 

recall that? 

A. Yes. 

Q. Cleveland was both in the 11th and 9th District in the 

‘92 Plan. Do you recall that? 

A. Yes. 

Q. Now, do you recall which district you were in? Were 

you in the 9th or the 11th District? 

A. The 9th. 

Q. Then this other map that shows the 97 House/Senate 

[*73] Plan A, which is what we're having a lawsuit about here. 

It shows down at the bottom that Mecklenburg -- that whereas 

the 9th District had been in three counties, two of which were 

split, that the 9th District here is, again, part of Mecklenburg? 

A. Yes. 

Q. All of Gaston, and here all of Cleveland. Do you think 

this map is wrong? 

A. No, I don't. It's just that my recollection, the district 

had been changed. 

Q. Several times? 

A. Periodically. 

Q. Right. 

A. And in the particular two year term might be a little 

vague in my mind. 

Q. But the change, as it relates to the 9th District, was, as 

before there were three counties, two of which were split in the 

‘97 Plan. Cleveland, your county is whole; Gaston is whole 

and Mecklenburg is the split county; is that right? 

 



  

50 

A. Yes, sir. 

Q. All right. Now, you weren't on the redistricting -- you 

had an interest in redistricting but you were not a member of 

the House Redistricting Committee? 

A. I was not. 

[*74] Q. That was led by Representative McMahan from 

Mecklenburg? 

A. That's right. 

Q. He's a Republican? 

A. Yes. 

Q. The Republicans had a slim majority in the House and 

had the chairs of all the committees; is that right? 

A. Yes. 

Q. Now, did you confer with Representative McMahan 

about the congressional districts being drawn in 1997? 

A. I had conversations with him. 

Q. And did you understand, when he was proposing the 

plan, that was first the plan that his committee had come 

forward with and then the ultimate plan, this plan that was 

adopted that as to the 12th District he said that the overriding 

motive was political, it was to preserve the six, six Democratic 

Republican split and, in fact, some incumbent protection. Do 

you recall him taking that position? 

A. I'm surprised if he did say that. 

Q. Well, did you take the position with him that the plan 

was wrong because it was race based? 

A. I certainly had that opinion that it was race based, but 

they were under order to make it race based. 

Q. Whose order was that that you are talking about? 

  
 



  

51 

[*75] A. Well, the Justice Departmenthad by direct order 

or inference or whatever said that it had to be two minor 

districts. 

Q. Well, but, in fact, the district that was drawn in 1997 in 

the 12th District was majority white, wasn't it? 

A. I think by percentage it might have been. 

Q. As opposed to percentage, but by people was it majority 

white? 

A. Yes. 

Q. Now, you did attend one of the public hearings that was 

held in this matter, did you not? 

A. I'm sure I must have, if it was held in the Legislative 

Building particularly. 

Q. Do you recall -- do you recall on February 26, 1997, 

that there was a public hearing in the Legislative Building 

where the members of the House Committee and the members 

of the Senate Committee were present and heard from various 

people, legislators, and people from the general public? 

A. Yes. 

Q. Do you recall talking at that public hearing? 

A. I believe I made a presentation. 

Q. Do you recall that you expressed some complaints 

regarding the -- this district that was being proposed or the two 

districts that were being proposed, one by the [* 76] House and 

one by the Senate? 

A. I would suspect that I did. I'm a little vague about it at 

the moment. 

Q. Do you recall that the complaint that you made, the 

criticism that you had of the plan, was because the primary 

 



  

52 

interest was being incumbency protection and protecting 

political party position? 

A. Yes. 

Q. And you said the Senate and the House Redinmiciing 

Plans are designed to protect both of those interests? - 

A. Yes, it was partly to protect the incumbent's interest. 

Q. Well, but do you recall whether you said you made any 

complaint at that time that there was something wrong because 

it was -- there was some racial motive that was wrong and was 

predominated? 

A. I might not have said that. 

Q. Your proposed constitutional amendment did not 

prevail in the General Assembly, did it? 

A. It did not. 

Q. And you proposed a constitutional amendment because 

of the Constitution of North Carolina says it is the General 

Assembly that has the sovereign power to draw congressional 

districts? 

A. Correct. 

[*77] Q. You wanted to change that? 

A. Yes. 

Q. And that's a matter of political theory some states have 

changed? 

A. About 11 or 12 have a similar plan. 

Q. Right. But North Carolina has chosen to keep that 

power in the General Assembly and with the people, with the 

legislators the people have elected? 

A. Yes. But my plan was to serve the people, not the 

political parties. 

  

  
 



    
  

  

53 

Q. That was the purpose -- that was your belief as to the 

commission system would be better but your colleagues in the 

General Assembly did not agree with you? 

A. Not sufficient enough to take action. 

[*77] Redirect Examination 

By Mr. Everett: 

Q. In giving your opinion as to the predominate motive, 

have you taken into consideration the conversations you had 

with Representative McMahan? 

A. State the question? 

Q. In giving your opinion earlier as to the predominate 

motive being racial, did you take into account, among 

[*78] other things, your conversations with Representative 

McMahan? 

A. I had a conversation with him. He might not have 

specifically said that, but certainly the impression would have 

been that's what they were arriving at. 

Mr. Stein: Objection. Motion to strike. 

Judge Thomburg: Motion to strike allowed. 

By Mr. Everett: 

Q. In any event, your opinion took into account 

recollections, contacts in the General Assembly at that time; 

would that be true? 

Mr. Stein: Objection. 

Judge Thornburg: Overruled. 

A. The prevailing atmosphere and environment was what 

they were coming up the the racial gerrymandering district -- 

 



  

54 

Mr. Stein: Objection. 

Judge Thornburg: Overruled. 

  
 



  

55 

REUBEN OSCAR EVERETT TRIAL TESTIMONY (EXCERPTS) 

[*81] Q. So there's no confusion about it, since we have 

the same initials, can you explain what relationship, if any, you 

are to me? 

A. Yes, sir, I can. My father and your father were brothers. 

And before your mother married your father, I came along and Sk 

my daddy named me for your father. So that’s the reason you 

are not a junior. 

[*82] Q. Now, moving forward to 1997, could you state 

whether or not your county or city was split in any way? 

A. Yes, sir. The county and city both were split 

[*83] significantly, in my opinion, and very radically to pick up 

much of the African American community. 

Q. Were you familiar with the general dispersion, if any, 

of African Americans in Rowan County? 

A. Yes, sir, to some extent. 

Q. State whether or not they tend to be concentrated in any 

particular locations in the county. And if so, where? 

A. Yes, sir, they do. They are basically concentrated in a 

town we call East Spencer and in the area I refer to as Jersey 

City. But it's in the White Packing Company area there and in 

the Livingstone College area. 

Q. Now, in connection with this case and after -- well, first, 

did you become a plaintiff in this case at some point? 

A. Yes, sir, [ did. In that I had followed your activities in 

the 1992 case and, in fact, dropped you a line, sent you some 

 



  

56 

clippings at that point and have followed it generally as you 

progressed through it. You and I, in a telephone conversation 

a time or two, had talked about Rowan County and I was glad 

to serve as a plaintiff on that basis. 

Q. Now, as a result of participating in this lawsuit or 

maybe even before participating, did you have occasion to go 

to the Board of Elections and try to determine what the 

breakdown was in Rowan County? 

[*84] A. Yes, sir. I wanted to be sure what I. was getting 

into when I became a plaintiff in this case, particularly as far as 

Rowan County and its division was concerned. I went to the 

Rowan County Board of Elections and they were kind enough 

to furnish me a precinct map of both Rowan County and 

Salisbury. They had a list of precincts there, all the precincts 

in the county and their designation as far as District 12 and 

District 6 are concerned. 

I obtained maps from them. With their help I colored 

them in and they are on the table over there as to the portions 

of the 12th District and their boundaries and the Sixth District 

and its boundaries. 

Q Now, were you deposed in connection with this case 

several weeks ago? 

A. Yes, sir. 

Q. And did you present these particular exhibits, these 

maps you had drawn at that time. Were you asked questions 

about them? 

A. I was asked questions about them, sir. I was somewhat 

surprised they got into the deposition, but that was fine with 

me. 

  

 



  

  

57 

Q. All right, sir. Now, with respect to these maps, since 
there is some question, I think the defendants have objected on 
grounds of authenticity? 

A. Yes, sir. 

[*85] Q. These are Deposition Exhibits 60 and 61. Who 
prepared these? 

A. I did. 

Q. I'm going to ask you to hold these up and these are 
Deposition Exhibits 60 and 61. And why don't you hold them 
up and you can indicate -- take 60 first and indicate what 
that is. 

A. This, Your Honor, is -- 

Q. Wait a second for the Court to get theirs. 
A. Excuse me. 

Q. Tell us what 60 is and what it represents and then do the 
same with 61. 

A. 60 is a map of Salisbury area that was divided 
according to District 12 and District 6. District 12 is in yellow. 
The East Spencer area I referred to predominately African 
American is Precinct 18, this is numbered by precinct. The 
Livingstone College and Jersey City area are represented by 
Precinct 42 and 35, I believe, if I'm reading this correctly. 
Those are the concentration of black voters. 
Q. By the way, you mentioned Livingstone College? 
A. Yes. 

Q. I'm going to interrupt you for just a moment. Do you 
have any particular relationship to Livingstone College? 
A, Not now. I have had in the past. I was privileged 
[*86] to receive an honorary doctorate degree from Livingstone 
College. I worked with the college on a number of occasions, 

 



  

58 

particularly when I was with the bank. I headed the local -- as 

Treasurer of the local United Negro College Fund and was an 

Associate Trustee of Livingstone for a while. 

Q. Okay. Continue, I'm sorry. 

A. That's all right. The 12th District comes in from the 

northeast through Spencer, picks up the heart of Salisbury and 

moves out of the county towards Iredell County. 

If I may have the other map. 

Q. Number 61? 

A. This is 61. The Salisbury map fits in the area here. It 

was too detailed to go into the full county map of Rowan. So 

that this represents the county as the yellow portion is District 

12. The purple portion here is District 6. They are two split 

districts, according to our Rowan County Board of Elections 

and one of those -- 

Q. You said district. Is it precinct? 

A. Misspoke. I apologize. There are two split precincts, 

one in East Spencer and one in the southwestern side of 

Salisbury where District 6 encroaches into the precinct 

themselves, so that this is the northern portion of Rowan 

County is District 12 designation. 

[*87] If you will notice on the map to the right Westward 2 

looks as if it's split and the Millford Hills District -- looks as if 

the East Spencer District 12 and 6 is split and Southward 12 

and 6 is split according to the map. And this is the one I 

obtained from the Rowan County Board of Elections. 

Mr. Everett: Your Honors, we'd like to offer these into 

evidence over the defendants’ objection of authenticity. We 

believe we demonstrated these are authentic. 

  
 



59 

Judge Thornburg: We'll admit it for illustrative 

purposes. 

Mr. Everett: There's another exhibit, 62. 

Judge Voorhees: Did you offer 60 and 61? 

Mr. Everett: Yes, sir, Exhibits 60 and 61. 

Judge Thornburg: Same ruling. 

By Mr. Everett: a 

Q. I'm going to show you Exhibit 62 now and can you 

indicate if you know what that is? 

A. This is a list of the precincts in Rowan County and, how 

shall I say, district allocation for congressional district for the 

Senatorial district and House district, North Carolina Senate 

and, of course, the North Carolina House. And they show here 

as well that East Spencer is split between District 12 and 

District 6 and Southward is [*88] split between District 12 and 

District 6 and that was the purpose of getting that. 

Mr. Everett: We would also like to offer that into 

evidence, Your Honor. 

Judge Thornburg: Let it be received. R 

By Mr. Everett: 

Q. Mr. Everett, I'm going to show you Exhibit 106, and 

. this is a map showing racial distribution allocation. Can you 

3 state from your knowledge of Rowan County and including 

. what you have done in terms of checking, whether the 

| = ~ percentages in terms of racial concentrations, as shown for 

Rowan County here, corresponds with that which you have 

D observed? 

A. The Rowan County has -- had the predominately black 

areas allocated to the 12th District. East Spencer, East Ward,   
 



  

60 

I believe it's South Ward, West Ward, those are predominately 

black and predominately Democratic and vote that way. 

Q. All right. Now, let me next ask you whether, from your 

knowledge of Rowan County and Salisbury and the knowledge 

of racial concentrations or dispersions in that county, whether 

you were -- whether you formed an opinion as to the 

predominate motive of the General Assembly in providing 

Rowan County as it did in creating the 12 District in the 1997 

Plan? 

[*89] A. In the 1997 Plan, it's my -- 

Ms. Harrell: Objection to any opinion that he would 

express on that subject. The witness has not testified to 

anything that would allow him to testify to his opinion about 

the motive of General Assembly. 

Judge Thornburg: We'll sustain that objection at this 

point, Mr. Everett. 

By Mr. Everett: 

Q. Mr. Everett, in connection with this plan, could you 

state whether you see any way in which the 12th District in 

Rowan County corresponds to the racial concentrations that 

you just identified in Rowan County? 

A. Yes, it does. And there's a very classic example in the 

East Spencer Precinct that was split. It was split near Boundary 

Street and on the north side is most solidly black and on the 

south side very few white families live there. So it's evident to 

me, on its face, that this is racially gerrymandering. 

Judge Boyle: You have it African American on both 

sides of the boundary, the way you testified? 

  
 



  

61 

The Witness: 1 apologize. It's African American on the 

north side of Boundary Street and south side is predominately 

white on the East Spencer Precinct. 

Judge Boyle: That’s the same thing you said a minute 

ago. I may be misunderstanding. Before you said [¥90] there 

were few, if any, whites south, okay. 

The Witness: There were a very few whites south of 

Boundary Street. 

Judge Boyle: Ifit’s black on the north and no whites 

on the south -- 

The Witness: It’s predominately black. 

Judge Boyle: -- on both sides. If it’s black on the 

north and there are no whites on the south, then it would -- do 

you get it? 

The Witness: Well, I may be missing something, sir, 

but in my opinion it went down Boundary Street to eliminate 

the few whites. 

Judge Boyle: Just the way you said it. 

The Witness: I apologize. Sorry, your honor. 

Judge Boyle: Ifit’s black to the north and no whites to 

the south, isn’t it black to the south also? 

The Witness: I apologize, your honor. 1 may have 

misspoken. What I'm trying to say is to the north side of 

Boundary Street is predominately black, to the south side of 

Boundary street is predominately white. I apologize. 

Judge Boyle: Okay. 

By Mr. Everett: 

Q. Are both of them about equal in terms of concentration 

of people? 

 



  

62 

[*91]A. No, sir. The East Spencer Precinct has, I think, 

about five white families in it on the south side of Boundary 

Street. 

Q. How many African American families? 

A. I don’t think there are any. 

Q. So there are only about five families altogether on the 

south side? 

A. In the entire precinct, yes, sir. 

Judge Boyle: Then you were right. 

[*95] Q. All right. With regard to the precinct of 

Salisbury in the 12th District in the ‘97 plan, what is the name 

of your precinct or the number? 

A. The name of my precinct? 

Q. The name or number it goes by. 

A. North Ward 2. 1 have to look up the number to be sure. 

It's precinct number 40. 

Q. Is that precinct majority white or African American or 

something else? 

A. It's majority white. 

Q. And does it also tend to vote Republican? 

A. Yes, ma’am. 

Q. And it has -- to your memory it has a majority 

Democratic in registration; is that right? 

A. As best I remember, the registration, based on recent 

political campaigns, has shifted a good bit. My memory tells 

me, from past history, it's basically been Democratic. 

Q. All right. But the voting is no longer Democratic? 

  
 



  

  

63 

A. The voting is Republican. The registration was 

Democratic. 

Q. When you did these maps that you testified about, 

[*96] when did you visit the Board of Elections to get the 

information you needed? 

A. Ms. Harrell, it was back at the time I agreed to become 

a plaintiff in this suit. I wanted to be as sure as I could of 

where I am and what I was participating in as far as the suit is 

concerned. 

Q. And you became a plaintiff in 1997; isn't that correct? 

A. Somewhere along in there, yes, ma’am. 

Q. And at the time, I believe you didn't volunteer, but your 

cousin Robinson Everett called you and said he needed a 

plaintiff, asked you to be a plaintiff? 

A. I didn't call him and ask him to let me join. We were in 

conversation. I agreed to join and was glad to be a part of it, 

yes, ma’am, 

Q. But -- and when you got these maps about that time or 

when you got the list and map and you called him about that 

time, so far as your precinct’s shown on there, the precincts are 

as they existed in 1997; is that right? 

A. According to the County Board of Elections. 

Q. You don't have any information as to how the precinct 

lines changed since 1990, do you? 

A. No, ma’am. 

Q. So if any -- whatever it shows as to whether a precinct 

is split or not may or may not have been true [*97] under the 

1990 precincts, so far as you know? 

 



  

64 

A. As far as I know, the precinct splits are shown on the 

1997 Plan and this is furnished by the Rowan County Board of 

Election. 

Q. You have no knowledge as to the same with the 1990? 

A. No, ma’am. 

Q. With regard to that list that you had of those precincts 

that showed some splits, did the list also show splits for State 

House and Senate districts? 

A. Yes, ma’am. 

Q. And were there, in fact, several splits for State House 

and Senate districts for some precincts? 

A. State House one, Senate district, two splits. 

Q. In fact, one of the precincts was split from both the 

Senate and State House? 

A. Yes, ma’am. 

      

 



  

65 
J. H. FROELICH TRIAL TESTIMONY (EXCERPTS) 

[*101] Q. Please state your name, residence and 
occupation. 

A. J. H. Froelich, Jr., go by Jake. I'm from High Point, 

North Carolina. I am in the movie production business, the 
hotel business and recently have been consulting in the 
businesses that we have just sold, which are furniture market 

show room properties; also in the furniture business. 

Q. And how long have you lived in High Point? 

A. All of my life. 

Q... Could you state your education? 

A. I went to the High Point City schools and then went to 
Weeberry (phonetic) Forest School in Orange, Virginia; went 

to the University of North Carolina in Chapel Hill, graduated. 

Was in the first MBA class in Chapel Hill; got my Master in 
Business. 

Q. Could you state what activities you engaged in in the 
electoral or political process over the years? 

A. I have been involved in the political life of our state and 
our region for a long time. I have been a precinct -- elected 
precinct official, county Democratic party chairman. I have ran 

the campaign for Governor of Hargrove Bowles, Jr. In the 

"70's. I have been involved [*102] in our region and state in 

political life for most of my career. 

Q. Okay. And as a result of that, have you become 

acquainted with the precincts in your home county of Guilford 
County? 

 



  

66 

A. Yes, I know the precincts, some of the make up. -I know 

sometimes I have gone door to door in times past in the '50s. 

I haven't done that in recent times. 

Q. Have you become familiar with precincts in other 

counties in the Piedmont? 

A. I sort of understand how they are organized and what 

goes on, 

Q. Mr. Froehlich, could you state whether or not in 1992 

you were first placed in the 12th District? 

A. I was in the 12th District because our residence moved 

slightly before that. We built a triple mixed use property in 

High Point, which had condominiums on the top three floors, 

showrooms on the bottom floor, and offices on the middle 

floor. I moved into what I discovered was that precinct having 

been in the 6™ District all of my previous life. 

Q. And then in 1997 were you still in the 12™ District? 

A. I was. That's the one that was thrown out. 

Q. That's right. 

A. It was and I'm not anymore. I'm back in the 6th. 

[*103] Q. So in the 1997 Plan, which is the one now being 

litigated, which was never put into effect, you were, in fact, in 

the 12" District? 

A. Yes. 

Q. Now, at that time did you -- when you saw the 1997 

Plan, did you look carefully at the precincts to see how the 

district was formed? 

A. Yes. And that district was formed by putting 

predominately black precincts in the High Point portion of that 

congressional district. 

Q. Were you here during Mr. Woods’ testimony? 

  
 



67 

A. Yes, I was. 

Q. He's also from High Point? 

A. Yes, sir. . 

Q. You heard him describe the precinct allocation there in 

Guilford County? 

A. Yes, I did. 

Q. Was that what you also observed? 3 
A. I observed, yes. 

%* % % 

[*106] Q In terms of the 12th District, could you 

determine what would be the likelihood, from your knowledge 

of the political process and electoral process of the 12th District 

is constituted in 1997 Plan, would elect an African American 

as a candidate or nominate an African American as a 

candidate? 

A. It would seem highly unlikely, yes, sir. 

Q. And what about with respect to the opportunity of a 

[*¥107] white Democratic candidate in the primary? How 

would you -- what would be your opinion as to the likelihood 

of success? 

Ms. Harrell: Objection. 

Judge Thornburg: Overruled. You may answer. 

A. The chance of a white candidate in a primary would be 

very, very difficult for that person to be nominated.   
 



  

68 

Q. Mr. Froehlich, just a couple of questions. With regard 

to your business background, did you mention you're in 

television or radio? 

A. I have an interest in -- I have had television interest, 

yes, ma’am. [I do currently. 1 have an interest in the 

Wilmington TV. 

Q. With regard to your participationin television industry, 

have you been in business with Counsel Robinson Everett for 

a number of years? 

A. Yes, I have. 

Q. Does that date back to the ‘70's, I believe? 

A. We had an interest in a venture in Greensboro. 

* % % 

[*108] Q.One final question: you were asked about a 

relationship with me. Why did you join this lawsuit; why are 

you a plaintiff? 

A.Because I'm interested in what happens in our State. I 

have been interested in the political life of our State and I 

was absolutely very, very disappointed that we ever came to 

a congressional redistricting plan that was race based. 

  

 



69 

NEIL CARSON WILLIAMS TRIAL TESTIMONY( EXCERPTS) 

[*109] Neil Williams, being first duly sworn, testified as 

follows during direct examination: 

By Mr. McGee: 

Q. Hello, Mr. Williams. State your name full for the 

Court. wn i * 
Neil Carson Williams. 

Q. And where do you currently reside? 

A. 1912 Shoreham Drive, Charlotte. 

Q. And approximately how long have you lived in 

Mecklenburg County? 

A. 30 years. 

Q. What is your occupation? 

A. I'm an attorney. 

Q. And what firm do you work with? 

A. Horack, Talley, Pharr & Lowndes. 

[*110] Q. As part of your practice, have you had any 

experience in voting rights cases? 

A. A limited amount, yes. 

Q. Okay. What is your political party? 

A. Republican. 

Q. And do you regularly follow the political process in 

Mecklenburg County? 

A Yes, I try to. 

Q And throughout the state as well? 

A. To some extent, lesser extent, but yes. 

Q. What elective offices have you held in the past? 

A. I was elected to the Charlotte City Council, Council i in 

1973 and reelected in 1975.   
 



  

70 

Q. Have you ever run for Congress? 

A. Yes, I was a candidate for Congress in the 

9th Congressional District in 1994. 

Q. And as a result of your involvement in the political 

process and also considered in being a candidate in ‘94, are you 

familiar with the precincts in Mecklenburg County? 

A. Yes. A 

Q. Are you generally familiar with other precincts in the 

Piedmont area that follow along within the 12% District? . 

A. To a lesser extent, yes. More so the 12th District as we 

voted in the last time in 1998. 

[*111] Q. Are you generally familiar with District 12 as it 

was constituted in 1992, the district that ran from Gastoniaup 

through Durham? 4 

A. Yes, that's the way I described it, Durham, Greensboro, 

Winston-Salem, Charlotte, Gastonia district. 

Q. With regard to the District 12, the 1997 Plan the 

Greensboro, Winston-Salem, Charlotte plan, are you generally 

familiar with that plan? 

A. Generally. 

Mr. McGee: If I may approach and use a map. 

Q. Showing you Exhibit 106. Are you familiar with this 

particular map? With the Court's permission, if you'd like to 

step down to examine it closer. 

(Witness leaves the witness stand.) 

A. All right. 

Q, This is -- I show a map that shows the 1997 Plan as you 

refer to it in the Mecklenburg, Guilford -- 

(Witness returns to the witness stand.) 

  
 



  

71 

Winston-Salem district. To what extent did the allocation of 

precincts in District 12 within Mecklenburg County correspond 

_ with the concentrations of minor persons in those precincts? 

Mr. Stein: Objection. 

Judge Thornburg: Ask that again. 

= Q. To what degree did the inclusion of precincts in 
[*112] Mecklenburg County districts precincts included in 

~ District 12 correspond with the racial breakdown in the 
precincts? 

Mr. Stein: Objection. 

Judge Thornburg: Overruled. 

A. All of the predominately black precincts were included 
in the 12th District. 

Q. As it was configured in ‘97? 

A. Yes. 

= Q. In Mecklenburg County, what two Congressional 

Districts are included in the 1997 Plan? 
A. Part of the county is in the 9th District and part is in the 
12th District. w 
Q. And have you formed an opinion as to whether the 

county was divided along racial lines when those districts were 

configured? 

Mr. Stein: Objection. 

Judge Thornburg: Overruled. 

A. Yes. 

Q. And what is that opinion? 

A That -- 

Mr. Stein: Objection. 

A. That it was so divided with the intent to elect -- 

Mr. Stein: Objection.   
 



  

72 

Judge Thornburg: Sustained as to intent. I'll [*113] let 

him testify as to just what he said, that it's racially divided. 

Q. Divided such that the majority minor precincts placed 

in the 12th District and white predominately white placed in 

the 9th District? 

Mr. Stein: Objection to leading. 

Judge Thornburg: Overruled. 

Q. In what way, if any, is the western part linked to the 

eastern part in Mecklenburg County? 

A. There's a slight land bridge at the southern part of the 

county. 

Q. Based on your observation of the precincts and as well 

as your participation in the political process, do you have an 

opinion, based on the circumstantial evidence from the shape 

and demographics of the district, if race was a predominate 

motive in the creation of District 12 in Mecklenburg County? 

Mr. Stein: Objection. 

Judge Thornburg: Sustained. 

Q. Are you aware that the defendants have claimed in this 

case that District 12 in the 1997 Plan is a Democratic island in 

a Republican city? 

A. I heard that yesterday. 

Q. What is your opinion, if any, as to the accuracy of that 

claim? 

[*114] A. I don't think that's correct. 

Q. In your opinion, is it possible to draw a Democratic 

district both in terms of registration and performance in the 

same general area of the state that encompasses District 12 that 

is less bizarrely shaped? 

Mr. Stein: Objection. 

  

 



  

= 73 

Judge Thornburg: State that question again. 

Q. In your opinion, is it possible to draw a Democratic 

district in the same general area of the state that is less bizarrely 

shaped than District 12 in the 1997 Plan? 

Mr. Stein: Objection. 

Judge Thornburg: Sustained. 

Q. Let me ask you, then: why do you not think that -- why 

do you disagree that it's a Democratic island in a Republican 

city? 

A. Because there are precincts nearby that are also 

Democratic leaning precincts and, as a matter of fact, my 

understanding is some of those precincts were included in the 

successor plan to the one we're talking about today. That plan 

I call the Winston-Salem Charlotte plan. 

Q. Which would be, I think, the ‘98 Plan? 

A. ‘08 Plan, the one we just voted under last Congressional 

election. 

[*116]Cross-Examination 

By Mr. Stein: 

Q. Mr. Williams, I’m on the Board. Here is a map that 

shows the 1997 Plan that was under litigation showing the 12th 

district in yellow and the 9th District in green. You’ve seen 

that? 

A. Yes. 

Q. And the 9th District in this plan has two whole counties, 

Cleveland and Gaston, that run along the southern border of 

North Carolina and part of Mecklenburg County; is that right? 

 



  

74 

A. That’s right. 

Q. When you ran in 1994 you were running in the 

Republican Primary against an incumbent; were you not? 

A. No. 

Q. That was the time when Representative Myrick was 

first elected? 

A. That’s right. 

Q. And at that time, what were the counties that were 

included in the 9th District? 

A. Mecklenburg looked very much the same, but there was 

only -- that county looks the same. Most of Gaston County 

was also in the 9th District and a little portion of Cleveland 

County. 

[*117]Q. Let me show you the map that we have been 

using here showing the 1992 Congressional Plan. It shows all 

of Gaston; does it not? 

A. That would be wrong. 

Q. Because it goes into Gastonia, so that there was a 

portion of three counties in the 9th district at that time? 

A. That’s right. 

Q. And then the map drawers determined for the 1997 Plan 

to have two whole counties and parts of Mecklenburg; is that 

right? | 
A. That’s right. 

Q. If they made a decision to include all of Cleveland and 

all of Gaston, that would then, for the 9th district, would 

determine how much of Mecklenburg, how many people in 

Mecklenburg would be in the 12th. First of all, you’d have to 

determine how many people you would need to get out of 

Mecklenburg to make a complete congressional district with a 

  
 



  

  

75 

district that included all of Gaston and all of Cleveland; isn’t 
that right, for one-person, one-vote purposes? 
A. I’m not quite following you. 

Judge Boyle: He means the last particular figure is 
Mecklenburg County. The constant figure would be Gaston 
and Cleveland. If you decided on those two, the [*118] only 
choice you have is to make up the difference from the one you 
are making to make elastic or expandable. You follow me? 

The Witness: If you add voters in Cleveland County? 
Judge Boyle: No. If you take two as constant, you 

have to, by definition, make the third flexible or elastic. We 
understand. 

Mr. Stein: All right, sir. 
By Mr. Stein: 

Q. So that the choices you then have in Mecklenburg, if 
that’s what happened, would be if you are choosing one 
precinct then you would have to exclude another precinct or 
precincts. It’s kind of like the way they have the budget bill 
now. You have to pay for what you had. If you are drawing 
precincts in Mecklenburg, if you are including precincts in 
Mecklenburg -- I withdraw that, that was the worst question I 
ever heard. : 

Isn’t it so, that in terms of whether you are making a 
decision about a particular precinct, if you include that precinct 
you necessarily then are making a choice between that precinct 
and another precinct or other precincts? 
A. Correct. 1 don’t think Mecklenburg changed very 
much. 

[*119]Q. Well, you will agree that the record is just going 
by appearances. Does Mecklenburg look any different? 

 



  

76 

A. Of course not. 

. [¥121]Redirect Examination 

By Mr. McGee: 

Q. You stated there are 26 minor -- 26 precincts in which 

African Americans make up the majority in Mecklenburg 

County; is that correct? 

A. Right. 

Q. Of those 26, how many are in District 12? 

A. All of them. 

Mr. McGee: no further questions. 

  
 



  

77 
DAN FREY TRIAL TESTIMONY (EXCERPTS) 

[*121] Mr. Markham: The plaintiffs call Dan Frey. 
Dan Frey, being first duly sworn, testified as follows during 
direct examination: 

By Mr. Markham: 

Q Mr. Frey, state your name, please. 

A. Dan Frey. 

Q. And can you tell us who's your employer? 

A My employer is the North Carolina General Assembly. 
Q What's your position? 

[*122] A. I work in the information systems division. I work 
specifically with the computer systems for redistricting and 
geographic information systems in general. 
Q. How long have you held that position? 

A. Since August of 1995. 

Q. Are you here today pursuant to a subpoena? 

A. Yes. 

Q. And did you know before that you were going to be 

testifying today? 

A. No. 

Q. Let me ask you a few questions. Have you brought 
along with you some data concerning persons who were moved 
from various districts in the course of constructing the 199 
Congressional District Plan? 

A. Yes. 

Q. Have you calculated from that data, which is in the 
province of your department, what is the percentage of African 
Americans who reside in District 12 in the 1997 Plan who were 
also included in District 12 in the 1992 Plan? 

 



  

78 

A. Yeah, as far as -- yeah, that basically for black and 

white population. 

Q. Tell us what that number is for African Americans 

A. The number is 232,324. | 
Q. Can you tell us what percentage that is of those 

[*123] African Americans included in District 12 in the 

'92 Plan? 

A. So based on the 1997 Plan, the people in there, the 

African American population, 90.2 percent of that African 

American population was also in the 1992, 12th District. 

Q. Can you give us a similar number or the comparable 

number for what percentage of whites who reside in the 

District 12 in the 1997 Plan were also included in District 12 in 

the 1992 Plan? 

A. That would be -- yeah, a total of 139,044 people and 

that's 48.8 percent of the total 1997 District 12 white 

population. 

% % * 

[*139] Cross-Examination 

By Ms. Smiley: 

Q. Mr. Frey, I thought you were going to be called only 

about one issue. I'm happy to have you there to talk about 

maps. 

You were asked about percentage of African Americans 

moved in who were not moved out of the 199 -- not moved out 

of District 12 in 1997, as I recall. You gave a percentage. Do 

you know the memory -- or can I refresh [*140] your memory 

what the formula being used to create that percentage is? 

  
 



  

79 

A. Might I draw an illustration to explain? 

Q. Yeah. 

A. Explain how that is. 

Q. Yes. 

A. Is there something I can use to draw? 

(Witness leaves the witness stand.) 

There's been some confusion over this because it's a » 

little bit confusing the way it can be worded, but I was just 

drawing this up earlier, my understanding of it. 

Q. While you are drawing this, tell the Court whether or 

not this is your formula. 

A. Yeah, it's my formula. 

Q. Okay. 

A. Okay. So this would illustrate the difference in black 

population between the '92, 12th District and the '97, 

12th District. Since the percentage of African Americans was 

a lot higher in the 1992 Plan, the total numbers were higher. It 

was 312,791 and then the total in 1992 was 257, 

Judge Boyle: '97 you mean? w» 

A. Or '97, excuse me. 257,644. And the question that 

came up -- 

Q. Who raised this question? 

[*141] A. Marty McGee. 

Q. Who's plaintiffs’ counsel? 

A. Yes. Was how this population had moved -- sort of 

what percentage of the population had stayed in the same -- 

remained in the 12th District and what percentage of the 

population had moved when the new -- when the '97, 12th was 

drawn. So, basically, we had 232,324 African Americans that 

were in the '92, 12th that remained in the '97, 12th. So if you 

 



  

80 

look at it from the perspective of the 1992 Plan, that's 74.3 

percent of the African American population that was in the 

1992 Plan also was in the '97 Plan. But if you look at it the 

other way, you can say that, you know, still you have the same 

number, 232,324 in the '97 Plan, you can say that 90.2 percent 

of the African American population in the 97 District 12 was 

also in the '92 District 12. 

Judge Boyle: But it's totally irrelevant. It wouldn't 

matter if everybody got up and moved and an equal number 

moved in if you are looking at the racial composition is you 

don't care who the particular individual is. 

The Witness: Yeah. And I don't know that was the 

question. 

Judge Boyle: What was the point of that analysis? 

[*142] Ms. Smiley: I believe it's still my cross. 

Judge Voorhees: The Court asked a question. If you 

have an answer, go ahead. 

Mr. Markham: I believe it illustrates the main 

substance of a racial core in the creation of a new district 90 

percent of the black persons in the '97 district were also there 

in '92. Only 49 percent of white persons who were in the 

district remained there. I think it indicates a racial motive in 

the sense of maintaining the core. That's the purpose we offer | 

it. 

    

 



  

81 

DR. RONALD E. WEBER TRIAL TESTIMONY (EXCERPTS) 

[*143] Mr. Markham: Our next witness is Dr. Ron Weber. 

Ronald E. Weber, being first duly sworn, testified as follows 

during Direct Examination: 

By Mr. Markham: 

[*144] Q. Dr. Weber, state your full name for the record, 

please. 

A. Ronald E. Weber. 

Q. And can you identify for us Exhibit 48 in the deposition 

exhibits? 

A. Yes, that's Exhibit A to my declaration, which includes 

my curriculum vitae. 

Q. That's a reasonably current listing of your consulting 

and writings and other educational data with respect to your 

service in political science? 

A. Yes, sir. 

Q. Where do you teach today? 

A. Teach at the University of Wisconsin, Milwaukee. 

Q. What subject? 

A. Political science, particularly state politics, political 

behavior and methodology. 

Q. In the course of your -- over the last several years, have 

you had an opportunity to evaluate a number of redistricting 

plans in the context of Shaw lawsuits? 

A. Yes, sir. 

Q. And can you tell us in which cases you have offered 

opinions and done analysis with respect to issues regarding 

whether a significant number of persons were placed inside or 

outside of the district on the basis of race? 

 



  

82 

[*145] A. Yes, sir. I was an expert in Hayes versus State 

of Louisiana in Louisiana, of course. In Vera versus Richards 

in Texas. Miller versus Johnson in Georgia. Expert by 

deposition here in North Carolina in Shaw versus Hunt. Expert 

in legislative case in Texas, Thomas versus Bush. Expert in 

Johnson versus Mortimer, District of Florida challenging the 

Third District. Moon versus Meadows in Virginia. Chen 

versus City of Houston, local city counsel case in Houston. I 

think that enumerates the cases. 

Q. In addition to those cases, have you also consulted and 

given advice as well as testimony regarding Section 2 and 

Section 5 issues for government's and groups? 

A. Government's and groups, yes. 

Q. Can you identify Exhibit 49 for us? 

A. Yes. Exhibit 49 is an exhibit that I prepared routinely 

to do with my reports or declarationsin which I list all the cases 

in which I have been deposed or served as a trial expert. 

Q. And can you identify for us Exhibit 47? 

A. Exhibit 47 is my declaration of September 10, 1999, for 

this case. 

Q. I want to go through with you a number of the tables 

that are presented in that declaration. The First Table is located 

at page 13 and 14 with regard to split [¥146] counties. Can you 

tell us what value or assistance that table offers to the Court in 

evaluating issues that relate to this case? : 

A. That simply enumerates for the challenged plan each of 

the counties by district that are split on the basis of population 

and so what this indicates, for example, is that there are on page 

13, there are a total of, I believe, ten counties in the First 

District that are split. Going all the way through on page 14 a 

  
 



  

83 

total of six out of six counties in District 12 are split. 

Q. Table Two appears at page 19 of that report. What 

information does ‘that table provide to assist the Court with 

issues that relate to this case? 

A. This table, Table Two, includes the same informationas 

in Table One, but this time it is arranged by counties. So an 

array can see for any particular county the racial differences 

between the portion assigned to one district and to another 

district. 

For example, if we look down the table at Forsyth 

County, the portion that is assigned to the 5th District is only 

11.1 percent African American whereas the apportion assigned 

to the 12th District is 72.9 percent African American. So 

clearly states the differences between the racial, the 

composition of the two districts as the county has been split and 

that goes throughout the [*147] table, whether it's a split 

involving the 1st or 12th District or the six counties that are 

neither involved in the First or 12th District. 

Q. I'd like to draw your attention to Defendant's Exhibit 

435. -- I'm sorry. I misspoke, 433. 

Can you tell us what information that exhibit presents? 

A. I understand that Exhibit 433 has been prepared by, I 

believe, Dr. Peterson for the defendants and it's an attempt to do 

Ms. Smiley: I object, Your Honor. This is defendant's 

exhibit and this witness is saying what he thinks it is and what 

it's attempting to show. 

Judge Thornburg: Sustained. I'll let him tell what it 

shows to him but not what he thinks about Dr. Peterson's work. 

Ms. Smiley: Thank you, Your Honor. 

 



  

84 

By Mr. Markham: 

Q. What does this show? 

A. This 1s an exhibit that shows the differencesbetween the 

Democratic percentage assigned in the split counties based on 

the four criteria of partisanship offered by the defendants. And 

what it shows is that the difference between the Democratic 

proportion of each of the counties splitting, they are split within 

the 12th District, is [*148] less than the racial differences. If 

you look at the racial differences in my Table Two versus the 

partisan differences in this Exhibit 433, the racial differences 

are always greater than the partisan differences. 

Q. Now, returning to your report to Table Three on 

page 24. What information does this table provide? 

A. Table Three provides information as to each of the 

municipalities or census designated places that have been split 

in the drawing, again, of the 1997 Plan under challenge here. 

And in Table 3, again list by the jurisdictions within each of the 

districts. So you have, at the top of the table, you have all the 

jurisdictions that are split within District 1, numbers 13 total 

jurisdictions that are split and then it goes all the way through 

all the districts and concludes with the number of communities 

that are split in District 12, which numbers, I believe, 13 

separate jurisdictions that are split in Table 12 to create, again, 

not Table 12 but Table Three for District 12. The jurisdictions 

that are split between District 12 and another district. 

Q. Okay. Again, is Table Four at page 27 a different way 

of presenting these same data? 

A. Yes, it is. But it's a way in which you can very easily 

see the racial differences in the communities that are split to 

draw the various proposals. For example, if [¥149] you look at 

  
 



85 

top of page 28 and in the Greensboro split, the portion that's in 

District 6 is 10.7 percent African American, but the portion 

assigned to District 12 is 55.6 percent African American, again, 

focusing on Forsyth County. Bottom of page 29 there you 

show 16.1 percent is the African American portion assigned to 

District Five, but 77.4 percent is the African American portion 

district assigned to District 12. Again, you can see the racial ® 

differences as the communities are being split between the 

districts. 

Q. And is exhibit -- Defendant's Exhibit 434 analogous 

information with respect to the political division of cities? 

A. Yes, it is. 

Q. How do those two contrast, Table Four of your report 

and Exhibit 434 of the defendant's exhibits? 

A. Again, in looking at the communities in Table Four, I 

believe in all but one case the racial differences is greater than 

the political difference in Exhibit 434. 

Q. And have you prepared an exhibit which summarizes 

this information concerning the political data in the divisions of “ 

cities? 

A. Yes, I have. 

Q. Which exhibit number is that? Is it Exhibit 309? I 

believe that's the one my information shows. 

[*150] A. Yes, it's Exhibit 309. 

Q. And can you explain for us what that information 

indicates? 

A. Well, the theory underlying the preparation of this 

exhibit would be if one were to assume that precincts were 

going to be randomly assigned within the six counties 

involving District 12, you might have about 36 percent of all 

    
 



  

86 

the precincts would be assigned to District 12 and what it 

shows is that almost all of the precincts that are over 40 percent 

African American, I think it's all but three are assigned to 

District 12, but on the political data nowhere is the number in 

the same range as is the case with the racial data. 

Q. Next I want to turn to your Table Five. I believe it 

appears after page 32 of the text? 

A. Yes, sir. 

Q. What does this data show regarding the assignment of 

precincts in Congressional District 12 in the 1997 Plan? 

A. This table has a page or more for each of the counties 

that are split between the congressional districts, and so it has 

counties from split with District 12, with District 1 and with six 

other counties as well. But, for example, if we look at one of 

the counties that is assigned to District 12 and perhaps say 

District 5, I'm going to page through to the Forsyth County 

table, this [*151] should be about, I believe it's the eighth page 

of the tables. 

The way I have organized the tables is to list every 

precinct in the county and to list for it the total population; the 
white population, the black population, the total VAP, the white 

VAP and black VAP and the percentage of each of those 

figures. 

Also, in the very far right-hand corner to indicate the 

district to which it was assigned in the challenged plan of 1997. 

What you would expect to see if there's a pattern of racial 

assignment because the districts -- excuse me, the precincts are 

ranked from the highest African American percentage in the 

precinct to the lowest in the precinct, you would find the 

precincts assigned to District 12 would be at the top of the 

  
 



  

  

87 

table. So as you can see in this particular table, every precinct 
that is majority African American beginning with the eastern 
elementary school precincts and working up the table has been 
assigned to District 12. And then you go down and you find a 
few other assigned to District 12. But you go to the second 
page of the table, which has the very light majority precincts in 
Forsyth County. You notice none of them are assigned to 
District 12 at all, they are assigned to District 5. 

So with this information you can very clearly see a 
[*152] pattern of assignment at the precinct level which, in my 
judgment, is a racial assignment that is being made or has been 
made by the state. 

Q. Okay. Let's continue. Your text table, Table Six, 
appears, I believe, after the text on page 55 at page 56? 
A. Yes, sir. Table 6 is a table constructed to examine the 
proposition proffered by the defendants that what really is 
involved here is assignment of precinct on the basis of 
partisanship rather than on the basis of race. So I have a series 
of tables labeled as Table 6 that array each of the six counties 
in District 12 as well as a table at the end in which I report all 
the data for six counties in District 12 in which I array the 
partisanship measure against the racial measure. 

For example, again, if we were to look at the Forsyth 
County table, which begins on table on page 58, Forsyth 
County table if you look in the far right-hand column and 
bottom of each table, of course the precinctsthat are 70 percent 
African American and 70 percent Democratic are clearly 
assigned to the 12th District. So in this case, it's 13 of 13 
precincts that have that racial composition and also that 
Democratic composition. 

 



  

88 

Then you start reading up the table and you begin to see 

at what point there's no longer the assignment of precincts to 

District 12. And if, again, as I suggest in [*153] the text of my 

report, if the inference is it's party that is driving the assignment 

pattern rather than race, you would find that even in the 

precincts that are less than 30 percent African American, you 

would have assignment of Democratic precincts. 

For example, if we look at page 58, look at not the 

Democratic registration figures because the Democratic 

registration figures are somewhat inflated, if we look at the 

1990 Senate race between Harvey Gantt and Senator Helms, we 

begin to see at the level of less than 30 percent. There's not a 

single precinct that is less than 30 percent black, but yet 

supported Mr. Gantt in that Senate race that are assigned to 

District 12. So the inference here is that if we were following 

partisanship, some of those precincts would be assigned and 

you have much more random person pattern in the table of 

assignment. You see a clear pattern of assignment on the basis 

of race rather than party. 

If you look at the summary table, which begins on page 

68 and 69, which has the data for all the counties and, again, 

you look at the 30 percent line and, again, we look at the 

Harvey Gantt versus Helms race on page 68, there we see that 

there's a total of -- let me see if I can do my math correctly in 

my head -- 74 precincts less than 30 percent African American, 

but they all went for [*154] Mr. Gantt in the Senate race. But 

only 19 of those 74 are assigned to District 12. Remainder are 

assigned to other districts adjacent to District 12. I think that 

pretty well debunks the theory it's partisanship not race driving 

the assignment pattern of these precincts. | 

   



  

89 

* % % 

[*158] Q. What are the results of these analysis results 

reported? 

A. The analyses are reported in Table 7 on page 80 of my 

declaration. 

Q. What does that table provide in the way of 

[*159] information concerning the nature of participation rates 

in North Carolina? 

A. In the Democratic primary, in the First Congressional 

District and the 12th Congressional District as well, I believe in 

all but one occurrence African Americans participated higher 

rates than non-African Americans in the Democratic primary. 

That's in Table Seven. 

Q. What's Table Eight reflect? 

A. That reflects the participation rates in the general 

elections. Again, held within the boundaries of District 11 or 

held within the boundaries of District 12 under challenge in this 

case. In there the analysis indicate that white or non-African 

American voters generally vote at higher rates than African 

Americans in the general election. 

Q. What further analysis did you conduct concerning these 

election related issues? 

A. Well, finally -- not finally but the second step was to 

estimate the white cross-over rates in these congressional 

districts using in particular, as I report in Table Nine on page 

84, the general election returns because, again, as I've 

demonstrated in Table Eight, if African American voters are 

slightly disadvantaged in participation rates in the general 

election, then in order for African American candidates of 

choice to win, they [*160] have to get some degree of white 

 



  

90 

cross-over vote in these general elections in order to prevail. 

What I show, and I think this has to do with the broader 

question about narrow tailoring, is that for the First 

Congressional District the worse case scenario was in 1990 

when Harvey Gantt got 18 percent of the white vote in the 

boundaries of the challenged 1997 First Congressional District 

and it ranges all the way up to 46.2 percent where Mr. 

Campbell, the State Auditor candidate, did that well in that 

particular contest. 

In the boundaries of the challenged 12th District, the 

ranges are much narrower, 35.1 percent at the low point for Mr. 

Gantt in 1996 running for the second time against Mr. Helms 

to a high of 41.8 percent that Mr. Edwards got in 1998. 

* % % 

[*161]Q. I'd like to focus on the electoral safeness of 

Congressional District 12. Where's the data reflected that 

indicates the results of your analysis concerning the electoral 

safeness of that district as drawn in 1997 Plan? 

A. In the 1997 Plan recall, no elections were held within 

the boundaries of this particular congressional district. But, 

again, I reconstituted the state wide election returns within the 

precincts used in that particular plan and so those are, again, in 

Exhibit E, which is -- 

Q. Which is Exhibit 52? 

[*162] A. Yes. Deposition Exhibit 52 and, here again, 

focusing in on the general election returns 1990 for this 

challenged District 12 which, of course, has never been used. 

It's 66.4 percent for Gantt. For the 1992 general election for 

  

 



  

91 

State Auditor, it's 66.8 percent for Campbell. 1996 election, 

Gantt for the U. S. Senate, Gantt gets 64.9 percent. General 

election for Auditor in ‘96, Campbell gets 65.5 percent and 
finally the 1998 general election for U. S. Senate, Mr. Edwards 
gets 69.3 percent. So all of these are results well over the 60 

percent threshold to be deemed as a safe district and clearly 

there are votes being wasted in that district as it's been as it was 
configured in 1997. 

Q. When you say “votes being wasted,” what do you 

mean? 

A. The sense is when you are doing districts and you have 

certain kinds of outcomes in mind and you have adjacent 

districts that are different in political composition, you might 

want to take some of the voters in the district that you are 

drawing that's overly safe and put them into adjacent district so 

as to make that district more competitive. 

Judge Boyle: Like handicapping a race. You want to 

get your horses to the finish line ahead of all the other horses. 

The Witness: Yes, constitutional but do it in a 

[*163] way you have voters not wasted. 

Judge Boyle: So you are saying rather than 

handicapping it, they are making some sure things. 

The Witness: My sense is District 12 is a sure thing. 

Again, in the challenged plan. 

Judge Voorhees: If a legislator were being purely 

partisian, that legislator would want the optimum 60 percent in 

a particular district and save the overage to help his party in 

another district? 

The Witness: Yes. The district that might have 

benefitted from that, with the hindsight from the ‘98 election, 

 



  

92 

would have been District Eight, in which there was an open seat 

and there was a seat that initially was a Democratic seat, but it 

turned over to be Republican. 

Judge Boyle: If you add 20/20 hindsight, you wouldn't 

put so many voters that you were targeting in District 12. You 

might have thrown a few over to District Eight and won both 

elections rather than sacrificing District Eight and just winning 

District 12? 

The Witness: Yes, sir, that's exactly correct. 

[*164] Q. Dr. Weber, what do the data reflect concerning 

the electoral safeness of Congressional District 12? 

A. Plaintiff's Exhibit 206. 

[¥165] Q. And this is the first page, the first portion? 

A. The third page, first portion reports various analysis for 

past elections held within the boundaries of the precincts 

assigned to District 12. And so, for example, the first column 

reports the number of persons in the district. The second 

reports the black African American percentage in the 

population. The third column reports the black African 

American percentage of the VAP. The fourth is a Democratic 

performance measure, and I don't know how they calculated the 

Democratic performance measure, but in occasions in which I 

have seen this in the past, it's simply a sum, an average -- 

Ms. Smiley: Objection, Your Honor. Where he has seen 

it in the past has no relevance to this document. 

Judge Thornburg: Answer the question. 

Q. Will you continue with explaining the other columns? 

    

 



  

  

93 

A. I have seen this before in Texas. Texas NCEC was also 
advised in Texas -- advising the Texas legislature how to draw 
districts. I saw the performance measured there. I know it was 
an average there. The average other columns are that are going 
to follow. 

The next column is the Democratic percent in 1990 of 
the U.S. Senate 66.6 percent. The next column is the 1996 
Senate race general election, again, 64.2 percent. The next 
column is the 1996 Presidential race, 64.4 [*166] percent. The 
next column is the Democratic percentage for President in 
1988, Michael Dukakis was the candidate, 66.5 percent. Next 
column is 1996 auditor in North Carolina, 65.2 percent. And 
we have 1996 House, which is a generic adding up of the 
election returns for all of the House raises within the precincts 
assigned to district, 1261.6 percent; 1994 House, 54.5 percent; 
1992 Senate, 62.6 percent; 1996 Democratic registration, 61.9 
percent. So the Democratic registration in this district is 61.9 
percent. Then we have the 1996 black registration, 43.5 
percent; 1990 black registration, 44.2 percent and then finally 
we have the Native American percentage, which is 0.41 
percent. 

Q. Let me ask you with respect to these data, did they 
change in any way your opinion concerning the electoral 
safeness of Congressional District 12? 
A. No. It reinforced it. It's more data than I have. It 
reinforces my opinion. 

 



  

94 

[*167] Q. For the 1996 version of Congressional 

District 12, tell us what percentage of the district, as it's 

constructed, is African American for the Democratic 

[¥168] primary. 

A. My estimate, again, for 1996 is about 59 percent 

African American in the District 12 Democratic primary. 

Q. Does that information allow you to make a judgment of 

whether the district is constructed in a way that's likely to 

denominate a candidate of choice of African American voters? 

A. Yes, except for the possibility the African American 

community might be fractured or noncohesive. Assuming they 

are cohesive, the candidate of choice of African American 

voters will be nominated in both the: 1st and 12th District. 

id % 

[*181] Q. Similarly, have you reviewed the maps of the 

general region of Congressional District 12 with respect to 

black voting age population, which is, I believe, Joint Exhibit 

106, the map that we have been using here today on the easel? 

A. Yes, I have reviewed that. 

Q. Have you reviewed maps 107 through 109 which are the 

individual county maps for Guilford, Forsyth and Mecklenburg 

Counties reflecting population? 

A. And Democratic voter registration. 

Q. And Democratic voter registration. 

A. Yes, I have. 

Q. Have you contrasted those maps with the information 

the maps that have been provided as exhibits -- Exhibits 253 

through 258 which are maps of the results of the 1988 Court of 

  
 



  

95 

Appeals? 

A. Yes, I have. 

Q. Have you also contrasted the racial maps, which also 

appear as Exhibits 237 through 242 in another format with 
[*182] precinct names? 

A. Yes. Those show black voting age population. 

Q. As opposed to total population? 

A. Right, for the those six counties. 

Q. You reviewed all of those maps showing voting age 

population? 

A. Yes, I have. 

Q. Have you also contrasted the two groups of racial maps 

with the results for the Harvey Gantt election contest in 1990 
which are reflected as a general map at 263 and as individual 
county maps through 268? 

A. Yes, I have reviewed those also. 

Ms. Smiley: Did you say 263 through -- 

Mr. Markham: Through 268. 

Q. And as a result of those contrasts and comparisons, do 

you have an opinion concerning whether or not the assignment | 

of precincts to the 1997 Congressional District 12 was 
predominately based on race? 

A.. Yes, and it reinforces clearly the opinion I gave in my 

declaration on Table 6 for the six counties. 

[*185] Q. Next there's a series of maps beginning with 

number 272 and continuing to number 287. We'll just look at 

one map as the illustration, perhaps the map of Wayne 

 



  

96 

County, 280? 

A. Okay. My book ends at 274. 

Q. Map numbers were 272 to 287? 

Ms. Smiley: What example are you using? 

Mr. Markham: Let's use the first one, 272. — 

Ms. Smiley: Thank you. 

Is that still in the exhibit book that you have? 

Yes, it is. 

And can you tell us what this map illustrates? 

It illustrates wherever the concentration of African 

American population would be in this county, and you would 

have red dots. And so there are really two places in the 

[*186] county; one small concentration on the east side of the 

county on the bay and the other at the west side of the county. 

But these series of maps illustrate the relative concentration of 

African American populations in each of these counties. 

Q. And what other information would benefit the Court 

that those maps provide? 

> 
LO 

PR
O 

A. Well, again, if I were to put all of these maps together 

and I were assessing this concentration compactness question 

that I assessed in my declaration, one would see basically that 

the -- that the areas of where African Americans live in 

northeastern North Carolina, they are all relatively distant from 

each other. There's not a sort of pattern of closeness exhibited 

in these series of maps and these dot matrix maps illustrate this 

very nicely. 

Q. Let me give you the next exhibit book, which begins at 

Exhibit 276. Let me ask you to make a similar evaluation of 

the map for Mecklenburg County at number 286. Can you tell 

us what information of assistance to the Court that map 

  
 



   

    

   

  

   

    

   
    

    

   
   

     

  

    

   
   

    

   
provides? 

A. Okay. Map 286? 

Q. Yes. 

A. This map has the dots plotted for every 20 African 

American persons and in the center of the map is 

[*187] Charlotte, you know, the city of Charlotte is in the 

center of the map. And it shows basically that the African 

American population in Charlotte is on the north side, a little 

bit on the west side and a little to the east of the center of the 

city. But that's pretty much it. There's some small 

concentrations running up along the interstate as you are 

heading toward Iredell County, but other than that it's mostly in 

the city of Charlotte. 

Q. And you've reviewed this series of maps, 272 to 287. 

Have you contracted them with the boundaries of the 

congressional districts for Congressional Districts 1 and 12? 

A. Yes, I have. 

Q. And have you any information concerning whether or 

not the boundaries in a general sense conform to the location of 

African American population? 

A. Pretty consistently. For example, in the six counties in 

the 12th District, the African American populations on these 

maps are placed within the boundaries of the District 12. 

Q. And can you tell us what relevance the next map, two 

maps down, 288, which is the map of the 1980s Congressional 

Districts in North Carolina, what relevance that map has for the 

issues before this Court? 

A. Well, I think the maps of the previous plans, whether 

[*188] it's a map of the 80's or the map of the 70's or even a 

map of the 60's, all of them show how the State in using 

 



  

98 

traditional criteria, drew congressional districts and this 

particular map from the plan of the map of the 1970 adopted 

April 29, 1971, does not split a single county of the 100 in the 

State of North Carolina in drawing congressional districts. 

Q. Sorry. You are referring to the 1970 map?- 

A. Yes. Maybe I pulled out the wrong exhibit. 

Q. You were referring to 288 A? 

A. I got into the wrong exhibit, I'm sorry. My book does 

. not have a 288, that's why or it's out of sequence. 288 A is the 

plan from 1980 -- after the 1980 Census, I should say, and it 

reflects that there were a total of four counties split in all of 

North Carolina. I can't read the one county up in -- 

Judge Boyle: Avery. 

A. Sorry, Avery, Yadkin, Moore and Johnston County 

were split. All the rest were composed of whole counties. 

Q. Next I would draw your attention to Exhibit 288 D, 

which is a data sheet that comes from a Section 5 submission. 

Can you tell us from that information what was the most 

heavily African American congressional district in the 1980's? 

[*189] A. That would be District 2, which if you take the 

1980 Census was 41.1 percent African American where you 

take the calculation after the 1990 Census was available is 43.5 

percent. District2 is the most African American district at that 

time. 

Q. Where generally is that district located? 

A. That district on the east was Edgecombe County and 

had all of Rocky Mount in it including Nash, Wilson, a portion 

of Johnston and Halifax, Warren, Vance, Granville, Person, 

Caswell and Durham. Durham is in that district. 

Q. Next we go forward to Exhibit 289, which I believe you 

  
 



99 

looked at earlier. What information does that map of the 1970's 

congressional district provide that would assist the Court with 

regard to any issues in this case? 

Ms. Smiley: Objection to characterization as either of 

these maps, 288 or 289, providing assistance to the Court. I 

don't think that foundation has been laid. 

Judge Thornburg: I'll let the witness answer the) 

question. 

A. These maps either now or in the plaintiffs’ exhibit were 

originally in my declaration in 1998 because in that declaration 

I was trying to outline the way in which congressional district 

plans have developed over time in the State of North Carolina. 

And in the days right after the one-person, one-vote decision, 

the State was able to [*190] draw constitutional districts using 

whole counties. 

1980, the map we just looked at in the previous Exhibit, 

288 A and B, they then had to split four counties, but that's the 

extent to which the state had to in a sense ignore traditional 

redistricting principals. 

1970's, they didn't and certainly in the late 60's as they 

were sorting out the district sizes as a result of the one-person, 

one-vote decision, they didn't have to draw districts split across 

the counties. 

Q. What's the maximum number of counties necessary to 

split in North Carolina in order to achieve one-person, one-vote 

equality? 

A. As a principle, you take the number of congressional 

districts and you have one less district minus one, so it's 11. If 

you start with the 1st District and you draw whole counties and 

you get to some place where you have to split a county, that's   
 



  

100 

one county split. Now, the Second District you draw all the 

whole counties and you may have to split a county. It's always 

one less than it, so 11 is the maximum to be split in North 

Carolina. 

% % % 

[*195] Q. In determining how would you, as a political 

scientist, go about determining what constitutes traditional 

principal, specifically in a community of interest? 

A. One of them is community of interest. So there are a 

number of ways of defining traditional -- defining communities 

of interest and among them are metropolitan areas, people who 

live and work in the same region of the state are defined as 

having a community of interest. And this map in Plaintiff's 

Exhibit 303 clearly exhibits shows those communities of 

interest. 

Q. And the map is exhibit -- Joint Exhibit 102 illustrates 

that the 1997 Plan, in fact, cuts across those communities; is 

that correct? 

A. Yes. Well, Charlotte is in a different metropolitan area 

than Winston-Salem and Greensboro. 

Ms. Smiley: Your Honor, I object and move to strike 

this whole line of testimony. Once again, the fact a political 

scientist thinks of these are traditional principles, I don't think 

any court said any legislature is required to use these maps and 

there's no evidence that the legislature used these maps, so I 

don't see they're relevant to the intent of the legislature, what it 

did or didn't do. 

Judge Voorhees: You think the legislature was 

  
 



101 

[¥196] unmindful of standard statistical metropolitan areas, is 

that not observed, on its face, contemplate they had no idea 

about SMSA? 

Ms. Smiley: Well, Your Honor, first of all the SMSA, 

these are from 1982. I'm not sure they are current, whether 

these are the ones that exist. They may be aware of it, you are 

exactly right, in the backs of their minds, but there's no 

evidence they are intending to use these in any way in 

developing their plan. So I still would say they are not 

relevant. 

Judge Thornburg: I overrule that and move on. 

Q. Did you finish your answer, Dr. Weber, with respect to 

that map? 

A. Well, one of the criteria that is involved in the 

community of interest is living in proximity to another person 

and SMSA'’s are the best way the national government has 

come up with with defining metropolitan areas and 

metropolitan areas whether it's social science or something 

legislature does, we're all aware of as representing one area off) 

community interest. ; 

[*198] Q. We looked at Exhibit 309. Is this an exhibit that 

you had prepared? 

[*199] A. Yes. That's the exhibit that was prepared out of 

Defendants’ Exhibit 435 to talk about the assignment of 

precincts to Congressional District 12 in the 1997 Plan. 

Q. I'd like to go back to that Exhibit, 435. 

A. Okay. I gave that book back to you at the break.   
 



  

102 

Q. Okay. Defendants’ Exhibit 435. And I'd particularly 

like to draw your attention to the third page to the second table, 

which is labeled Table 6 B.2. And my question for you is: 

what does the information in that table indicate to. you? 

A. Okay. If I'm with you, I'm at Forsyth County, right? 

Q. Forsyth County precincts, that's correct. 

A. And I'm looking at Table 6 B.2, which has percent black 

population rated against percent Democratic in the 1990 Senate 

election. What it suggests first of all is that, of course, the 

African American majority precincts in Forsyth County are 

assigned to District 12. 13 of 13, over 70 percent and two of 

two over 50 percent to 60 percent, so there are 15 assigned. 

If you go to the line at the top of the table, which is less 

than 30 percent African American, but then reports the 

Democratic precincts in this particular context, there are a total 

of eight precincts in Forsyth County that are not assigned to 

District 12. And only precincts mostly African American 

population are assigned to District 12. 

[*200] Q. I'd like to draw your attention to the first line of 

that column which shows those precincts which are less than 30 

percent African American in total population. Can you tell us 

how many of the precincts that voted more than 50 percent 

Democratic in the Senate election were included in the 12th 

District from that county? 

A. There are none. 

Q. How many were there available total? 

A. Would have been eight. 

Q. Are there precincts on the border of Congressional 

District 12, as it's constructed in 1997 Plan which are 

Democratic, particular in their voting behavior? 

  

 



  

103 

A. Yes. By comparing this data with the maps, I 

concluded that there are precincts in Guilford and also in 

precincts in Mecklenburg. 

Q. Can I draw your attention to map 265? Ask you to look 

at this book here. I'll trade out your other book. What does the 

information in the map at 265 tell you with regard to that 

question of whether there are precincts on the border of 

Congressional District 12 which were available to assign on the 

basis of party considerationsto the 12th Congressional District? 

A. First of all, this map 265 displays the voter precincts by 

percent Democratic in 1990 Senate race between Gantt and 

HelMs. And the yellow line on the map [*201] demarks the 

boundary of District 12, so the area in the center of the map 

heading northward on the map between the yellow lines is in 

District 12. Everything that is not in District 12 is then 

assigned to District 5 in Forsyth County. 

If I go to the top of the map where I see a precinct that's 

sticking up with a little bit of a nub toward the north that's red 

hatched, that's 50 to 59 percent, so that indicates Mr. Gantt 

carried that. If I start counting precincts, I go down. I have 

one, two, three, four, five, six, seven, eight, nine, ten precincts 

that according to the color coding on the map are indicated as 

having gone for Mr. Gantt in that election, all adjacent to 

District 12. But we're not assigned to District 12 and my theory 

or inference would be if this were an attempt to draw a 

Democratic district in Forsyth County, you would clearly wind 

up with those precincts, if they're to go with the other precincts 

east of that line so you have all of them in the center of 

Winston-Salem in that particular district. 

Q. I would like to ask you about map 266. What 

 



  

104 

information did that map provide regarding the question of 

whether there are precincts along the border of the 1998/1997 

verse of congressional district today which are a lined 

Democratic and could be assigned to the district on [*202] a 

partisian basis? * 

A. This is a map of Guilford County. Again, like the 

previous map precincts by Democratic vote in the 1997 race, 

the yellow line starting in the lower left-hand corner, the county 

goes through High Point and then nearly makes it up to 

Greensboro and the east side of Greensboro. There are, again, 

precincts that, according to the color coding, are either 50 to 59 

percent African American -- or 60 not African American but 

Democratic, not been assigned. If I count I believe I have one, 

two, three, four, five, six, seven, eight, nine perhaps adjacent to 

District 12 in Guilford County but not, again, Democratic 

precincts assigned to District 12 but were assigned to District 6. 

If one is inferring that partisanship was the underlying 

motivation for the drawing of this particular District 1, again, 

would have assigned those precincts based on the partisian 

information in the data base. 

Judge Voorhees: How many did you say? 

The Witness: I believe there were one, two, three, four, 

five, six, seven, eight, nine, I believe, maybe ten, if I read the 

map correctly. 

Q. Now, let me draw your attention to map 268 with 

respect to Mecklenburg County. What information does that 

map provide on the issue of whether there are precincts 

available along the border with the 1997 version of 

[203] Congressional District 12 which if one were 

constructing a Democratic District 1 would have concluded? 

  

 



  

105 

A. This, again, is the same map now for Mecklenburg 

County precincts by percent Democratic vote 1997 Senate 

race. This delineates -- the 12th from the 9th is a purple line, 

so it's easier to see than in the previous map. However, again, 

I have some 50 to 59.9 percent precincts and 60 percent 

Democratic precincts in this race. If 1 do this I've got one, two, 

three, four, five, six, seven, eight, nine, ten, 11, 12, 13, 14, 15, 

16, 17, 18, 19, 20 precincts that I can see right adjacent to 

District 12 that might have been assigned for partisian 

motivation for. 

Judge Boyle: I'm not trying to make this too simple, but 

in the Order that this Court wrote in ‘98 Holding Summary 

Judgment for the plaintiffs, didn't this lay out a whole 

comparative exercise of those districts -- those precincts next to 

the 12th District that could have been included? You are just 

going over the same material now, aren't you? 

Mr. Markham: Your Honor, those with respect to 

registration primarily I was focusing on the 1990 political 

results from the voting behavior of the voters in the 1990 

Gantt\Helms contest for purposes of these questions. But 

certainly they are similar in their [*204] support for the position 

that there are Democratic precincts available. 

Judge Boyle: Wasn't the point of that part of the Order 

to show by comparison the fact that certain heavily 

Democratically registered precincts had been left out from 

those that had high African American population had been 

included? 

Mr. Markham: Yes, Your Honor, those issues dealt 

with voter registration which was challenged as to its accuracy 

or predicted value so we focused here on the 1990 Helms\Gantt 

 



  

106 

election results, which showed Democratic voter behavior 

rather than merely their registration, and hopefully fills a gap. 

By Mr. Markham: 

Q. How does this information, Dr. Weber, comport with 

your opinion as to the racial motivation for the construction of 

12th District? 

A. Overall in Exhibit 309, if one were to assume that 

precincts are randomly being assigned to District 12 and issue 

is not is it race or is it partisanship, you would have about 36 

percent of all precincts assigned to District 12 and the exhibit 

shows that 76 of 79 precincts that are black in population, 40 

percent are higher, are assigned to District 12, whereas in all of 

the partisan indicators they range from 56.5 percent down to 39 

percent [¥205] on voter registration. So, again, this is evidence 

it seems to me that clearly confirms the racial assignment of the 

precincts to District 12 and rebuts the notion that this was an 

assignment on the basis of partisanship. 

Q. And does this exhibit reflect similar statistics 

concerning the other two contests or election contests the State 

purportedly looked at? 

A. It includes the Court of Appeals and the Lieutenant 

Governor, taken from Dr. Peterson's exhibit. 

Q. Is that generally consistent with the illustration that we 

just had with respect to Forsyth County? 

A. To Forsyth County and Guilford County and 

Mecklenburg County. 

Q. Do you have an opinion about whether it's necessary to 

draw a 12th Congressional District so elongated a manner in 

order to have a safe Democratic district in that region in North 

Carolina? 

  

 



  

  

107 

A. To have a safe Democratic district; you don't have to 

draw the ‘97 district to have a safe Democratic district. 

Q. And is it necessary to draw Congressional District 12 in 

some elongated manner in order to have a district likely to elect 

candidate of choice -- 

A. I have seen evidence that a district based on 

Mecklenburg County itself would, in fact, elect an African 

American to the House of Representatives. 

[*¥206] Q. I want to turn now to the issue of compactness. 

In your report, Exhibit 47, there's discussion that begins at page 

47. Can you tell us in general terms? 

A. Excuse me for a minute. I need to shuffle some of this 

paper in front of me. 

Q. This is Exhibit 47. In general terms, where does the 

compactness -- the measure of the compactness of this 

Congressional District 12 rank among the districts of the United 

States Congress today? 

A. Well, to give you some foundation, there are reports 

done in the past by election data services in Washington, D.C. 

that report both perimeter and dispersion measures of 

geographical compactness. 

Professor Webster, employed by the defendants, 

updated the measures of compactness in I believe two different 

affidavits or reports for this particular case. So using all of this 

information, the data that I have about the old congressional 

districts as well as the data about the revised 1997 

congressional districts, I concluded that North Carolina 12 there 

being 435 congressional districts ranks either 432 or 433 on the 

perimeter measure of exactness, so it's almost at the bottom and 

on the dispersion measure it's either 430 of 431, the reason I 

 



  

108 

can't come down to whether it's 431, or 432 or 433 is because 

Professor Webster didn't report a [*207] number for District 

Eight, which has been revised in the State of New York. So I 

don't know where Eight falls. North Carolina 12 continues to 

be the least compact district in North Carolina and the worst in 

the nation, among the worst in the nation for compactness. 

[*207]Q. Let me return then to the joint exhibits. Now, 

let’s go to the map 126 of the joint exhibits. Dr. Weber, have 

you had an opportunity to review a number of plans included in 

the Section 5 materials for 1997 to 1998 from the State of 

North Carolina in connection with your research in this case? 

A. Yes, I’vereviewedall of the plans that were made a part 

of this Section 5, exhibits going to the U.S.[*208] Department 

of Justice and this one, 126, is one of those plans. It is titled 

Winner/Cooperr 1.0, Winner/Cooper 1.0. 

Q. Have you ever drawn a redistricting plans? 

A. Yes, Sir, I have drawn many plans. 

Q. Have you ever used the plan ‘90 software in Louisiana, 

which is the same vendor that North Carolina used. 

Q. What information does Exhibit 126 provide to you 

concerning the process which led ultimately to the development 

of this 1997 district? 

A. Well, here there are three maps. There’s a map that 

simply for the state as a whole in a very crude way represents 

the districts and then there are detailed maps. One of district 1 

which is 126 B, and one of District 12, which is 126 C. And 

then there’s finally a statistical listing and this statistical listing 

  

   



    

109 

is very familiar to me. It’s the same kind of form at -- again, 

that the State of Louisiana produces with their redistricting 

software. 

Q. Now, there will be other evidence that will indicate the 

time during which this plan was sketched. What does the 

structure of that plan indicate to you? 

A. For a particular district or -- 

Q. For District 12. 

[*209] A. Oh. for District 12. In Exhibit 126 C, it’s in 

Mecklenburg County and then it’s in Iredell and then in it’s in 

Rowan and it’s in Davison and comes into Forsyth and 

Winston-Salem and comes a little bit into Guilford into the 

High Point area, but it stops at High Point in that particular 

plan. And in that plan demographically is 39.64 percent 

African American in totla population for district 12. But it’s 

also a district that performs quite well politically. That’s the 

third page of the report. Shows that Senator Gantt in 1990 got 

62.7 percent of the vote. Rand got 57.04 in 88 and Lewis got 

55.89 in ‘88. So that’s a democratic performing district. 

[*213] Q. Reviewing these maps as a group from 126 to 

130, what progression can you see in the construction of the 

Congressional District 12? 

Ms. Smiley: Object to the terminology “progression.” 

Judge Thornburg: Overruled, go ahead. 

A. When we finally get to Cooper 3.0, which is in 

Exhibit 130, you will see if we look at the map for the 12" 

District, the map is now very similar to the map before you 

 



  

110 

on the easel, which is to say all of the previous maps didn’t 

have Greensboro in this district and at this point now they’re 

adding Greensboro in and there’s an e-mail message that 

indicates that— 

Ms. Smiley: Objection to the hearsay. 

Judge Thornburg: Sustained. 

Q. So at what point in the progression of these maps is 

there a change from the absence of Greensboro to the 

[*214] inclusion of Greensboro? 

A. From Cooper 2.0 to Cooper 3.0, Greensboro has been 

added to the district and the African American proportion 

now in District 12 is 47.9 percent. In the previous map, and 

plan -- 

let me just go back here to be sure I review the right data -- 

that is 40.1 percent. So basically the district has been 

increased by almost eight percent from Cooper 2.0 to Cooper 

3.0. That’s when the Greensboro blacks were added to the 

district. 

[*220] Q. Dr. Weber, where do you look to determine what 

North Carolinian’s redistricting principles are, which are 

traditional ? 

A. We would look at the history of congressional regarding 

to that, so you look at the maps and the practices of the state in 

the past to do that. Particularly, what I guess I would 

characterize the post one-person, one-vote era, so we're talking 

about 1965 to the present. 

Q. What traditional redistricting principles does your 

  
 



  

  

111 

analysis establish or subordinate to raise in the construction of 
the 1997 Plan? 

A. You have the splitting of political subdivisions, 
particularly counties and cities censuses in these places. The 
subordination to compactness. Compactness is not -- 
geographical compactness is not inherent and there's also 

[*221] some disregard of communities of interest in this 
process. Those are, I think, the three major race neutral 

principles that are violated in the 1997 Plan. 

Q. If one were drawing a district based on partisanship in 
the central Piedmont as a Democratic precinct, would there be 
a need to split District 77 in Mecklenburg County? 
A. No. You can create very partisan districts simply by 
swapping Precinct 77 with, say, a precinct or two in Forsyth 
County and have the same partisan result for the purposes of 
drawing the district. 

Q. Are there any majority black precincts in the six 
counties, parts of which comprise the 1997 version of the 12th 
District, which conceivably could be assigned to Congressional 
District 12 that are not assigned to Congressional District 127? 
A. No. Every conceivable majority African American 
population perceived is assigned to District 12. There are none 

that could be assigned that were not assigned. 

Q. I would like to ask the same question with respect to 
Congressional District 1. Are there any black precincts in the ° 
district that the district could have been assigned to that district 
but were not assigned? 

A. No, but I do need to explain that. In Craven County 
there's a precinct by the name of Harlow that is 70.78 
[*222] percent African American. But my examination of the 

 



  

112 

map and the general boundaries of the district indicate that it is 
too far removed. There would be more white population in 
between that precinct and if you were to assign that precinct as 
well as the adjacent white precincts, you would have fewer 
African Americans as a percentage in the district. 
Q. Have you reviewed the facts and statistics regarding the 
Ist and 12th District, which are cited in the decision of the 
Court subsequent to the 1998 Summary Judgment? 
A. Yes, I have. 

Q. And are each of those facts and statistics accurate, based 
on your own research? 

A. Yes. 

Q. Have you conducted -- have your additional analyses 
been consistent with these data? : 

A. Yes. 

Q. Have you ever, in any of the redistricting voting rights 
or Shaw v. Reno cases in which you have been involved, 
encountered a boundary segment analysis offered to explain 
some part of legislative intent? 

A. No. This is the first case where I encountered that 

defense. 

Q. Do you have any criticism to such analysis? 
A. Within my declaration, I suggest that the analysis of 
[*223] Dr. Peterson to be, I guess what I call a complete 
analysis would have not only looked at the boundaries around 
the district, because that's really assignments at the margin, but 
would have started from the core of the districts. So the core 
would be where one would start the analysis and understand the 
assignment pattern of the core then one would proceed to go to 
the outer parts of the district to understand the total picture. 

    

  

  
  
 



  
  

    

113 

Also, in the process of ignoring the core, he ignored 

what we call the convergent precincts, about 80 percent of the 

precincts, as I understand his analysis, are suggested to be 

convergent. He then proceeds to count each of the segments 

equally and, of course, the segments are not of equal 

importance to the assignment patterns. 

Some precincts are larger than others and so, for 

example, if one were going to say let's exclude Precinct X and 

find another precinct to put in, you have to find one of equal 

size to put in or out of the district. So consequently, the 

counting that he does is counting on equal units and, in essence, 

he's creating what I call an unweighted average when he should 

have counted and weighted average for this purpose. 

Subsequent to the writing of my declaration, when we 

got the data and could subject it to, you know, rigorous 

analysis, we discovered there are 13 segments that border 

[¥224] on Davie County. And we looked at the data in 

particular because the maps we were getting for Davie County 

showed no precincts. And we noticed there are no precincts in 

Davie County, only townships that are the political 

subdivisions that are used in the data base of the state. 

And we noticed that all of the political data, with 

whether it's voter registration data or returns for the ‘97 race or 

the two races from 1988, all have the same percentages. So 

there's a common percentage attributed to every Davie segment 

so there are 13 segments that they are using the county average 

as the segment number and really the segments are not varying 

in terms of their political makeup or their racial makeup in that 

particular analysis. 

So I would suggest that if I had encountered that, I 

 



  

114 

would simply have excluded all of those segments because they 

are not -- they create erroneous information about the 

assignment patterns undertaken by the state in that particular 

analysis. In assisting you with the deposition of Dr. Peterson, 

we prepared some exhibits that were deposition exhibits. 

Q. Let me direct your attention then to Exhibit 23. From 

the deposition exhibits, which is the first of that series of 

exhibits, I'll ask if you can explain what information is 

conveyed in that exhibit? 

A. I don't have a copy of that in front of me. 

[¥225] The reason these were prepared is what we were 

provided by Dr. Peterson's company in the state was literally 

not intelligible to the -- one would have to understand the 

coding scheme of the analysis to do this, and it took awhile to 

understand it, so we prepared these exhibits to display for what 

in his report he calls type P divergent, partisan divergent 

segments. 

Here we're using Democratic registration and African 

American registration. So if you look at the top of the table, we 

have what's called observation 6 in the data base, which is 

segment 6, which has Mecklenburg Precinct 81 as the internal 

precinct and the external precinct is Mecklenburg Charlotte 80. 

We listed each of the segments that he described as type 

P divergent. And in particular what I found interesting by 

having done this particular exercise is that whenever he's got a 

type P divergent segment, that type P divergence are very 

small. They're one or two or three percentage points at most. 

So what I guess, to use a cliche here, is in this exhibit for the -- 

I think there are 20 some, maybe 24 precincts characterized as 

type P divergence. He's making a mountain out of a mole hill, 

  
 



  

115 

which is to say the differences that are a discrepancy to 

divergence are very small and they happen to be in the direction 

that he would like them to be. 

[¥226] So, for example, the Democratic -- excuse me, the black 

percentage for Charlotte 80 is .1521, the black percentage for 

Charlotte 819, internal segment is .1484. So if you go down 

and make all of the comparisons, you will see one, two, three 

percentage points relatively trivial and, technically, if you do 

the difference and means test would be statistically 

nonsignificant types of comparisons he has in this table. 

Q. Is that also true of the differences we see of those 

segments characterized of confirming the racial predominance 

here? 

A. Yes. That's the next exhibit, Exhibit 24, where there are 

fewer of those, but those are the type that's divergent. Type P-- 

other thing that sort of hit me when I first prepared this, is how 

many of these segments are Davie County segments external. 

As 1 suggested a few minutes ago, I would exclude those 

segments because, again, they are simply using the same data 

for all of the political comparisons with those particular 

segments. 

Q. In fact, does the analysis in any way take into account 

whether a precinct segment is in an area that's a land bridge 

connecting two areas or whether it's in one of the core counties 

or does it matter at all to that analysis? 

A. No. At one point, I think I counted the number of 

[*227] precincts in District 12, that there's no choice. It's a 

single precinct that connects one piece to another piece. 

You have to have the precinct in the district in order to 

make it contiguous, and there were in these divergent segments, 

 



  

116 

there are a number of these precincts that turned out.to be 

divergent. 

Again, you have no choice. You have to take that math, 

if that's the math that you are going to follow to draw a district. 

There are a number of those. I think I counted as many as ten 

or 11 of those precincts in which the state had no choice but to 

take that path to keep the state contiguous. 

Q. Exhibit 25. Can you tell us what it provides concerning 

this sort of analysis? 

A. 25 is an attempt to summarize for all of the six counties 

in the 12" District where exactly these divergent, type P 

divergent precincts are and where the type R divergent 

precincts are. As you can see from this exhibit, for example, on 

the type P, I believe 11 of 20 those -- no, let me start over 

again. 

15 of those are in the interior counties, the Davidson, 

Iredell and Rowan counties. If you are going to connect 

Forsyth and Guilford and Mecklenburgtogether, you have to go 

through those three counties and 15 of the 26 type P divergent 

precincts are in those counties. And for [*228] the type R 

segments, it's 8 out of 15 that are in that in those counties. 

The other thing that I asked to be done when this table 
was put together is to characterize what percentage of the 

African American population resides in these counties. If you 

take the third column over and you add that together, it adds up 

to a 100 percent or the three lower counties; Forsyth, Guilford 

and Mecklenburg. 83 percent of the African American district 

is in the three peripheral counties, the counties in the 

boundaries, the counties in between only have 12 percent of 

African American population in them. 

  
 



117 

Q. Exhibit 26, is that another exhibit that you prepared? 

A. Yes. Here we were concerned with putting in one 

exhibit, again, for the purposes of the deposition with Dr. 

Peterson. The performance of the ‘92 Plan, Districtl2 and 

District 1 and we had both here the black population and the 

percentage achieved in the general election by the congressmen 

and, of course, you can see in each case the performance of the 

district is greater than the percentage African American in the 

district. 

Q. Next looking at Exhibit 27. Is that another exhibit that 

you had prepared? 

A. Yes. This exhibit counts up the number of times in 

[*229] effect that I believe that either the party or the race 

explanation predominates and it's interesting that, in Dr. 

Peterson's report, he focuses primarily on the Democratic 

registration explanation, which is the explanation that has the 

greatest degree of credence for the partisan explanation, the last 

two columns, 23 to 13 or 20 to 12 or 26 to 15. 

On the other hand, if you look at the political races and, = 

again, using all of the segments, he has in his analysis not 

excluding any segments, that does not show a stark picture as 

the picture that Dr. Peterson conveys in his report. And, of 

course, we know through this deposition testimony or Section 5 

history the state admits that the party registration data. 

Ms. Smiley: Objection, your Honor. 

Judge Thornburg: Sustained. 

Q. Let me ask you: is it possible to apply the segment 

analysis to a district with a large number of split precincts? 

A. . No. Well -- technically, you could do it for the 

population data. Once you get to the political data, then you   
 



  

118 

have to have some mechanism whereby you can, in fact, split 

the population -- excuse me -- split the partisan registrationdata 

or split the political data. And, typically, with these state-wide 

elections, the data are [*230] not split in the precincts that exist. 

So if the precinct is split, the state has to come up with some 

sort of rule or the analysis has to come up with some sort of 

rule as to how they will allocate the particular portions to each 

of the districts that you do the segment analysis. 

Judge Boyle: Go ahead and finish your question as to 

his criticism of Peterson's analysis, because I wanted to hear 

that answer. 

Judge Thornburg: Objection went to your statement to 

what the state was conceding, so simply answer the question 

without presuming to know what the state concedes or doesn't 

concede. 

The Witness: It is my opinion that the registration data 

is the least reliable data to use for purposes of talking about 

political performance. The best data that's in the state's data 

base is the 1990 Senate data, because those precincts were in 

existence when the data base was put together. 

For example, the 1988 precincts there were changes. So 

there are some cases in which I don't trust the 1988 data in the 

state data base because they didn't, in my judgment, properly 

allocate the changes in the precinct lines to create the data. 

There's a good example in Precinct 77 where the data in 1990 

makes sense given the racial composition of the precinct. And. 

there's much [#231] greater support for Republican candidates 

for the heavy majority precinct in 1988 doesn't make sense. 

There's that kind of black cross-over in the two very partisan 

general elections. I see that in other places in the data base. 

  
 



  

119 

I'm most likely to trust the 1990 political data and less likely to 

trust the political data as to the performance. 

Q. Use of the performance data rather than registration give 

greater support for racial rather than partisan segregation? 

A. Yes. 

Q. Is it possible given the problems you will have with 

split precincts? 

Ms. Smiley: I object to his leading the witness. 1 

believe this is an expert. 

Judge Thornburg: Let's move it along. That's fine. 

Q. Let me ask: is it possible to test this by applying it to 

other Congressional Districts which have been invalidated as 

predominantly race based under Shaw v Reno? 

A. I think the analysis that Dr. Peterson has offered us 

could be done for other districts. You know, assuming that you 

get the right maps and the right data and it's done properly, I'm 

not sure in this case I believe it's been done properly. 

[*232] Q. Is Dr. Peterson's analysis and report reliable? 

A. No, it's unreliable. 

Q. In your view, is it relevant to the issues before the 

Court? 

A. Well, if we assume that the question is it party or race 

is an important question, it has some bearing on that question 

if it were appropriately done. And I suggest that it has not been 

appropriately done. 

Q. Are there any other criticisms that you have of the 

analysis by Dr. Peterson? 

A. If you could put a map up for me. 

Q. Which map? 

A. It would be the map where Iredell County abuts Davie 

 



  

120 

County. I think there's a map in our exhibits somewhere that 

does that. Maybe it's just the big map. 

Q. We have Iredell as part of the Exhibit 106 map; is that 

sufficient to show the point? 

A. This is not the best map to do it, but I can point out the 

area that's in question. What I did was knowing his segments. 

His data base tells me his segments. Okay, I then went along 

and I verified whether or not there were any segments in error. 

And I noted that there's a precinct in the northern part of 

District 12 in Iredell County that abuts Davie County, but yet 

there's no segment in his data base showing that any segment 

from Iredell [*233] County abuts Davie County segment, so 

that's an omitted segment from the analysis. 

Q. Why was it in your view -- or what is your view of the 

importance of the convergent precincts to an analysis? 

A. Well, again, if this is -- it's kind of a preponderance 

explanation. If 80 percent of your precincts are convergent and 

many, many, many of those precincts are at the core — 

Judge Boyle: What's "convergent" mean? Explain it. 

The Witness: It means, basically, that the racial 

percentage for the inside precinct is greater than the racial 

percentage for the outside precinct. Or for the party 

explanation, the Democratic percentage on the inside is greater 

than the Democratic percentage on the outside. That's 80 

percent of the precincts. 

Judge Boyle: That didn’t explain it. I'm too simple to 

understand that. You have to use more primitive language. 

The Witness: It's simply -- I'm trying to think about it. 

It's simply the question of what is the difference between the 

percentages. And if the percentage of one is greater than the 

  
 



121 

other and it is consistent with either the racial explanation, that 

is races inside and not outside. 

[¥234] Judge Thomburg: Inside the district? 

The Witness: Yes, or outside the district, then that 

would be characterized as a convergent segment. 

By Mr. Markham: 

Q. And a divergent segment, in contrast, would be one 5 

where -- 

Ms. Smiley: Objection, your Honor. 

Judge Thornburg: Overruled. 

Q. It would be where party is greater outside in the outside 

precinct than inside. The Democratic percentage outside is 

greater than the Democratic percentage inside or it would be 

where the racial percentage outside is greater than the racial 

percentage inside. Those are the characteristicsof the divergent 

precincts. 

As I suggested earlier in looking at Exhibit 25, most of 

these divergent segments are not in Forsyth, Guilford or 

Mecklenburg County, but they're in the three counties that 

connect the ends of the district and in a number of cases they're 

there because they are the only path that the state chose to take 

with -- 

Judge Boyle: So you are saying it's only as a product of 

necessity that there would be a divergent district; where 

necessity is not a factor, they are all convergent? 

The Witness: Yes, that's the tendency; it's not 

[*235] perfect. 

Judge Voorhees: And convergent depends on which 

theory you are trying to prove? 

The Witness: Yes, sir.   
 



  

122 

Judge Voorhees: So if you are trying to prove a racial 

predominate theory, then -- 

The Witness: No, if the theory is -- if it's race that 

predominates rather than party, then you will have a high 

percentage of convergent precincts. If you have any precincts 

that are divergent, they will be divergent in the direction of 

putting the blacker percentage of the -- or the higher African 

American percentage outside the district than inside the district. 

Judge Boyle: But that never happens. 

The Witness: It happens occasionally. 

~ Judge Boyle: In District 12? 

The Witness: It happens out of necessity, the need to 

draw the district in a narrow way because you have large 

populations in Forsyth, Guilford and Mecklenburg that anchor 

the district. So the geography is dictating the lines that are 

going on in Iredell, Rowan and Davidson. 

Judge Boyle: But I thought there was no instance where 

you had a majority African American precinct left out of 

District 12. 

[*236] The Witness: That's correct, not in a single one of those. 

Judge Boyle: There are instances where you have a 

majority Democratic precinct left out, but that's because of 

necessity? 

The Witness: No. Because, as I pointed out yesterday, 

there are currents in Guilford, Mecklenburg and Forsyth where 

demographics bordering on District 12 were not future into the 

district. They all happened primarily to be less than 30 percent 

white -- or, excuse me, less than 30 percent African American. 

Judge Boyle: That's what I was just saying, the only 

times they are left out is where they don't have a minor 

  
 



123 

population? 

The Witness: Yes, Sir. 

By Mr. Markham: 

Q. If you analyze the segment analysis using the 1990 

Helms/Gantt election, what then do the results indicate? 

A. Using population as the racial comparison, it's by two 

for party, two greater for party than for race. For VAP, it's even 

16, 16; and for registration, it's 16 per party and 13 for race. 

So, again, divergent segments. 

Judge Boyle: But if you read the opinion in the 

Summary Judgment Order, it laid all of this out in detail. That 

was one of the anchors of the opinion was that race [*237] was 

a more pure predictor of inclusion than party? 

The Witness: Yes, sir. 

Judge Boyle: And what is it that we're back here to do, 

to hear that from you or to somehow come up with voter 

participation as a substitute for party? You follow the 

question? : 

The Witness: Yeah, I follow your question. I guess I ws 

don't quite know how to respond. I think the reason -- 

Judge Boyle: Well, that Opinion apparently relied on 

voter registration rather than voter participation. 

The Witness: Right. And basically here. 

Judge Boyle: But the two are synonymous, aren't they? 

There's no great distinction in performance between voter 

registration and voter participation when analyzing 

non-precincts. 

The Witness: The way I analyzed participation, I'm 

looking at participation in the actual contest. So, for example, 

I analyzed participation in the Gantt/Helms race of 1990, and 
    
 



  

124 

my theory is that that -- is the Gantt/Helms is the best available 

data that the state had in its possession and used at the time that 

it was doing the redistricting; that is, in fact, I think reliableand 

accurate such that it would give them an understanding of - 

[*238] Democratic performance or Republican performance in 

each of the precincts. 

And, furthermore, it has the virtue of involving an 

African American candidate so you, in fact, could get a real 

test of perhaps white hostility to a Democratic candidate who 

happens to be African American. So I think it's a very 

appropriate political performance measure and a much better 

performance measure than the registration measure. 

Q. Are those political performance measures illustrated by 

the maps we reviewed yesterday concerning the Helms/Gantt 

election, for example, for each of the urban counties? 

A. Yes, they are. 

Q. And we did not look in detail at the Court of Appeals 

race maps, but you have reviewed those. Are they also an 

indication that in terms of Democratic performance that there's 

that same type of relationship? 

A. Yes, but I've already said earlier this morning that not 

in all cases do I trust the Court of Appeals data, because in 

some places the precincts changed between ‘88 and ‘90, and the 

state didn't, I believe, accurately translate those data. 

Judge Boyle: So the state had from the “90 election data, 

the Bureau's most reliable basis upon which [*239] to use race 

and yet disguise it as party in imposing districts? 

The Witness: I'm going -- I think I'm going to say no, 

and the reason I'm going to say no is because, in my analysis of 

cross-over in the Gantt/Helmsrace in the area of District 1 and 

  
 



  

125 

the area of District 12, I'd have to look back at the precise 

numbers. But my remembrance is that you've got pretty strong 

white cross-over, indicating that even though you had an 

African American candidate who had happened to be the 

Democratic nomination against Senator Helms in the context of 

Southern politics, Mr. Gantt did quite well among white voters. 

Judge Boyle: Among white voters? 

The Witness: Yes. Of course, he did very well among 

African American voters. 

Judge Boyle: I see. 

Judge Voorhees: When you say "participation" and 

"performance," are you using those terms interchangeably? 

The Witness: No, sir, I'm not. "Participation"is simply 

going to the poles and voting in the contest, voting either for a 

Republican or Democratic. In the Democratic primary voting 

for the one of the Democratic candidates. The other is what 

percent does a Democratic candidate achieve in the election. 

That's the definition [*240] of performance. 

Judge Boyle: But if you are trying to isolate those 

precincts that have a race-driven content rather than a party 

driven content, the Helms/Gantt race is going to give you the 

best indicator of that, isn't it, so that you can distinguish, say, 

in Mecklenburg, between a purely Democrat performing 

precinct and a minority Democrat performing precinct and 

know which is which? 

The Witness: Yes. 

Judge Boyle: That was the point of the question that you 

had a hot house example there, which you never had before, if 

you were a legislator that allowed you to pick and choose 

among what might otherwise appear to be simply generic 

 



  

126 

Democratic districts and now refine out of those the race-driven 

Democratic districts. 

The Witness: Well, and the districts that perhaps 

because it's got some African American in the precincts as well 

as whites willing to support an African American candidate. 

By Mr. Markham: 

Q. Do the voting performance analysis support the same 

analysis the district court reflected regarding registration? 

A. Yes, very consistent. 

[¥242]Q. Is there any particular information from these 

documents which bears on your analysis? 

A. Yeah, if I could turn to Exhibit 211. One of the issues 

that this was raised perhaps as a — 

Judge Voorhees: I don't seem to have 211. 

The Witness: Should be the 12th District starts on 

page 1224. 

Judge Voorhees: I can look on here. 

A. I'm looking at the very last page, which is page 1227. 

I don't know quite how to characterize the [*243] assertion, but 

I think the concern was whether or not Congressman Watt, in 

1998, under the circumstances of having a revised 

Congressional District and revised so that there was a primary 

in September and, of course, the general in November, whether 

or not the Republican challenger had the resources and the 

capability to make an effective race in that particular district. 

The best information that I have is from this report on 

page 1227, which shows that John Scott, is it Kadle, I guess,   
   



  

127 

Kadle, who got 42 percent of the vote against Mr. Watt, spent 

$381,000. And, generally, a challenger that spends that kind of 

money would be regarded as a serious challenger. So the 

redrawing of the district didn't prevent the Republican 

candidate from making a serious challenge to Mr. Watt at that 

particular time. 

Q. I'd like to draw your attention next to Exhibit 217, 

which is the article of Pildes and Niemi. My question for you, 

Dr. Weber, have you relied on that article in the preparation of 

your analysis and report? 

A. Yes. Irelied on this article for the data near the end of 

the article. In my report, I report some data for the 

geographical compactness on the 12 North Carolina 

Congressional Districts in the 1980's, and those data were taken 

from this report, page -- this article, page 572. 

Then also, as I put in my report, anything about the 

1992 [*244] plan that was ultimately found unconstitutional, 

those compactness scores come from this article, too. 

Q. Okay. Next, drawing your attention to Exhibit 221. 

Which is the Keech and Sistrom chapter? 

A. Yes, sir. 

Q. Can you tell us, have you relied on this in the 

preparation of your analysis and report? 

A. . Does it-- first of all, this is a chapter from a book edited 

by Bernie Grofman and Chandler Davidson, and in the book 

they have a chapter on each of the southern states and so Bill 

Keech and Mr. Sistrom -- Mr. Keech used to be at the 

University of North Carolina Chapel Hill. He contributed to 

this chapter. 

For me, the most important thing is to understand the 

 



  

128 

extent to which either threats of lawsuits or lawsuits in the 70's 

and 80's brought about changes at the local level in cities and 

counties of North Carolina and to understand that one of the 

outcomes of these lawsuits was to change the method of local 

districting in a way that produced greater racial segregation 

within the precincts; that is black precincts were created that 

were quite homogenously black and adjacent white areas were 

put in white precincts so as to afford the opportunity to have 

racial districts in these communities in North Carolina. And 

that confirms for me the point that I made in my declaration, 

that now [*245] in North Carolina many of the cities and 

counties are split very homogenously into black majority 

precincts and into white majority precincts, which can be used 

by the precinct processors in the State legislature to draw State 

legislator districts as well as Congressional districts. 

Q. Switch now to Exhibit 226, which is a map of the 

Congressional District comparing the ‘92 and ‘97 Plans. 

A. I don't have that. 

Q. At Joint Exhibit 139, I'd like to ask you what 

information can be gained from the review of this map and/or 

a comparison with Joint Exhibit 106? I'll step on this side. 

A. This map, it's number 226? 

Q. Map 226, yes. 

A. This is very similar to the map that we looked at 

yesterday for the 1st District where the old Congressional 

District of 1992 is outlined in red. And so in this map you can 

see you go to Durham and then you come to the northern part 

of Orange and Alamance counties. Ultimately you get to 

Greensboro and you pose in yellow is the 12™ District that's 

under challenge in this particular case. 

  

   



    

129 

And what I find rather interesting is that there's a 

substantial overlap in the African American neighborhoods of 

Greensboro and Winston-Salem and Charlotte between the two 

maps, suggesting that the core of the old 12% [*246] District 

that was primarily African American is, at least as it's known 

down to the six counties in the current challenged 1997 Plan, 

has retained in that particular district. 

[*248] Q. And next turn to Exhibits 140 through 142, 

which are maps of Forsyth, Guilford and Mecklenburg 

counties. How do these maps differently illustrate party 

performance [*249] than the maps of the Court of Appeals in 

the Helms/Gantt maps that we have been looking at yesterday 

afternoon and this morning? 

A. Well, the difference in this map versus the maps that 

we're looking at yesterday and this morning, this simply says 

whether or not there were some Republican victories and th 

contest in question are the ‘90 Senate race, the ‘88 Lieutenant 

Governor race and the ‘88 Court of Appeals race. So if it's 

yellow here, it indicates there were no Republican victories in 

these adjacent precincts. 

Yesterday I was looking at Forsyth. I also counted 

precincts that were not just abutting the boundaries of District 

12, but if there was a precinct like the ones in yellow on Exhibit 

40 and there was a precinct next to it, that might have also, in 

this exhibit, in fact, indicated it was a Democratic performing 

precinct on the 1997 race. 

For example, I counted that as a precinct that could have 

 



  

130 

been assigned as a Democratic precinct by taking both of the 

precincts and putting them in the 12™ District. 

Q. So these maps, they don't show the voting performance 

of precincts beyond those that immediately touched the edge of 

the district. ; 

A. It does not show beyond nor does it tell you what the 

percentage is. We don't know whether the percentage in the 

yellow precincts was 60 percent Democratic or 65 

[*250] percent Democratic. : 

Q. Also, do these maps illustrate whether there may be 

precicnts inside the Congressional District, for example, in 

connectors that have more than one Republican victory? 

A. I don't believe there are any connectors here. 

Q, Do they show the voting performance or behavior of the 

precincts inside the district? 

A. No, it does not. 

Q. Is there any dispute, at least with respect to black North 

Carolinians, that race and party are linked in North Carolina? 

A. Well, there are two very important behavioral indicators 

that indicate that being African American precincts, one to be 

a Democrat. That is, we know the percentage of African 

American who happen to be registered as Democrats is very, 

very high. Over the series of studies I have conducted from ‘90 

to ‘98, Democratic candidates get high percentage of African 

American support, typically over 90 percent from African 

American voters. 

Q. Can the effects of race and party be disentangled? 

A. Yes, I think they can. I think we have seen in this 

examination yesterday and today and through the stimulation 

of the partison analysis and report that it, in fact, can be 

  

  

   



  

    

131 

disentangled. 
| 

[*251] Q. When these are disentangled, which one is 

. predominate as an explanation for the construction of 

Congressional District 1 in the 1997 Plan? 

A. Race is the predominate factor. 

Q. When disentangled, which is the predominate 

explanation for the construction of Congressional District 127? 

A. Race is the predominate factor. A 

Mr. Markham: That concludes my questions, Your 

Honor. 

Q. You still have Exhibit 243 in front of you; it’s a map? 

Mr. Markham: I have it, Dr. Weber. 

A. Okay. 

Q. I just want to be clear. You indicate that this map 

shows some democratic precincts not assigned; is that correct? 

A. Yes 

Q. Okay. Tell me, Dr. Weber, based on one-person, onc 

vote considerations, could the General Assembly have assigned 

all of those high-performing Democratic precincts to District 1? 

[*252] A. For every precinct that they chose to assign to 

District 1, they would have had to have taken one or more other 

precincts out, so it’s always a calculation to take out one that is 

more or less Democratic than the one you put in. 

Q. So in other words, the other precincts that you were 

saying could have been assigned based on that map, in fact, you 

couldn't just assign any one or all of them or any one or more 

of them to the district without taking something else out? 

 



  

132 

A.That's correct, yes. 

Q. So you didn't intend to leave the impression that all of 

those precincts should have been included in the district, did 

you? 

A. If I had been the architect of the plan, I would have 

tested those options and I, of course, can't tell you with any 

certainty whether or not anyone tested those options. 

Q. That was not my question. I asked you: you did not 

intend to, in any way, create the impression that the fact all of 

these precincts were not assigned to the district shows anything. 

I mean, it shows something? 

A. It shows there were Democratic precincts that were not 

assigned. 

Q. But that's all it shows, because they wouldn't have been 

based on population. If the district now is [*253]one-person, 

one-vote aligned, then you can't just assign those other 

precincts? 

A. No, but if I were doing it, I would have to test, by taking 

something else out and seeing what the result was. 

Q. But you didn't? 

A. I did not. 

Q. In fact, you have testified that the district is Democratic 

and strongly Democratic? 

A. It performs Democratic, yes. 

Q. It's voting is Democratic in the various measures? 

A. Right. 

Q. And, in fact, if one was going to create a Democratic 

district, wouldn't one take the most strongly Democratic 

precincts first and put them in? 

  
 



  

133 

A. I think you would start from the standpoint of race 

neutral principles. 

Q. Well -- 

A. And then you would -- so, for example, as I suggested, 

that there are 12 counties in northeast North Carolina that could 

go into a district. After you have done that, you would test to 

see whether or not you have a Democratic or Republican 

district. 

Q. Well, you're talking about something else now. When 

we were talking about having a map and say Democratic 

precincts, you are concerned about all of these precincts [*254] 

were assigned to District 1 and 12. But isn't it true that if you 

are trying to create a Democratic district, you would assign the 

most Democratic performing precincts? 

A. But you can't -- and I'm not going to disagree with you. 

Yes, you would, but you can not subordinate traditional race 

neutral principles in the process of doing that. So, for example, 

you can easily take all of Mecklenburg County and find a few 

additional thousand people and draw. And I've seen plans in 

the exhibits that suggest that's a marginally Democratic district. 

Q. What would happen to the other public incumbent if 

you took all of Mecklenburg County and essentially made it 

one congressional district? 

A. There are currently, at the present time, two incumbents, 

one Democratic and one Republican, that lives in Mecklenburg 

County. : 

Q. Your suggestion that you eliminate one incumbent and 

draw one district and see if you can draw one Democratic 

district in Mecklenburg County doesn't work for the 

Legislature, does it? 

 



  

134 

A. I can't speak whether it would work in the Legislature 

or not. I'm speaking whether one follows race neutral precincts 

to do this. 

Q. As far as you are concerned, they do not include 

keeping districts for your two incumbents in the county? 

[*255] A. That's not one of the list of things. It's in the list 

there. 

Q. Sir, your testimony to the Court that a legislature is 

acting unconstitutionally in violating and subordinating 

traditional race districting principles if it does consider 

incumbents and gives an incumbent a district? 

A. No, I'm not saying that. 

Q. Okay, thank you. And, in fact, in this instance you are 

aware that the Legislature was attempting to create a 6/6 

partisan split, essentially give six Democratic districts and six 

Republican districts? 

A. From reading the record, that's my understanding of 

their intent. 

Q. So, therefore, creating a Democratic district in the 12th 

and creating a Republican 9th in Mecklenburg is consistent 

with the legislators’ motive; is that right? 

A. Yes. 

Q. And if you are trying to create a Democratic district, six 

Democratic districts, doesn't it make sense you take your most 

Democratic precincts and put them in those districts? 

A. No, because you have a Democratic district adjacent to 

District 12. And so, as I suggested yesterday, and I believe in 

answering one of the Court's questions, you [*256] would seek 

to balance. You would have fewer Democrats in the 12th and 

fewer Democrats in the 8th so that you would ensure that when 

    

 



  

135 

you have an open seed contest in 1988, the 8th would rush to 

Democratic or be competitive to return a Democrat to that seat. 

Q. You don't. know anything about political dynamics 

going on in the Legislature involving District 9 and 8 and 12, 

do you? 

A. I don't recall anything in the record that dealt with any 

detail about those issues, no. | 

Q. So you don't know anything about the concerns of 

former Congressman Hefner in District 8 and where he might 

want the predominate boundary line? 

A. I don't know anything about what Congressman Hefner 

asked. 

Q. Those kinds of things may have resulted in lines that 

you don't like, but they are Democratic still performing 

districts, aren't they; District 12 is a Democratic performing 

district, isn't it? 

A. Yes, that's clear. 

Q. And, in fact, aren't there six Democratic performing 

districts in the '97 Plan? 

A. I'd have to look at the data again to be sure of that. 

Q. You only looked at 1 and 12? 

[*257] A. No, I had access to the reports for all of the 

districts. It's just that they are not in front of me, so I can't 

verify that for you. 

Q. Looking at as much time as you have spent looking at 

North Carolina politics, if you look in the 1997 Plan you can't 

tell the Court that District 5 is a Republican district? 

A. I know District Five is. 

Q. It's a heavily Republican district? 

A. Once upon a time it was a Democratic district. 

 



  

136 

Is it now a very heavily Republican district? 

It's a Republican district. 

And District 6 is very Republican? 

Yes, it's Republican. 

Is District 9 and 10 a Republican district? 

Yes, but 8 was not a Republican district. 

Eight was a Democratic district. That's one of the six 

Democratic districts, isn't it? 

A. It's now represented by Republican. 

Q. So the Legislature made a mistake? 

A. Perhaps they had something to do with the candidacy. 

Q. That may be true, but you don't know what the 

Legislature was thinking about when it drew the lines for the 

incumbent of District 8? ee 

A. No, I did not find anything in the record that ]*258] 
indicated that. 

Q. So you didn't inquire about any real world political 

issues that might have been going on that might have 

determined why the Legislature drew the line where it did? 

A. No. I was aware that the Legislature was partisanly 

divided at the time that it was drawing the plan and so there are 

going to be some of those partisan issues involved, but analysis 

that I did and see is one in which race predominate district in 

the construction of District 12 and District 1. After that was 

done, then these other issues were brought along to be revolved. 

Q. When you crunched the data on the "97 Plan and you 

concluded race was the predominate motive, you never 

considered any other hypothesis other than race, did you? 

A. I knew Dr. Peterson had an alternative theory at the 

time. 

Q. 
A. 
Q. 
A. 
Q. 
A. 
Q. 

  
 



137 

Q. Let me interrupt you. Is the first time you crunched 

your numbers -- let me interrupt you. 

Judge Thornburg: Answer the question, then explainit, 

if you will. 

A. I need to hear the question again. 

Q. When you first started crunching your number tables 

two and four, which you supplied to the Court in a summary 

judgment proceeding, the only thing you considered when you 

determined that race was predominate was the [*259] 

hypothesis of race? : 

A. Yes, that's true. And what I was unable to do at that 

time, because we were operating under very severe time 

constraints, I had just received Dr. Peterson's report. I knew 

that this was going to be an issue, but I knew that I did not have 

time at that time in order to explore the alternative hypothesis. 

Q. My point is you already had concluded that race 

predominate district and never considered the political 

alternative until it was suggested by Dr. Peterson? 

A. That's true, yes. a 

Q. Okay. Now, isn't it true that one of the reasons that you 

never considered -- that you considered race was -- sorry, I'm 

not ready to start asking questions. Let me start over. 

Isn't it true that you only considered race because you 

believed the North Carolina computer system only displayed 

racial breakdowns and did not display political breakdowns? 

A. At that time I had not seen the screens for North 

Carolina. I had seen the screens in Louisiana. And in 

Louisiana, they did not prominently display political 

information on the screen. 

Q. Do you have your declaration, Exhibit 47, in front of     
 



  

138 

you, your declaration that was filed in this proceeding? 

[¥260] A. Yes. 

Q. Could you turn to page 52? 

A. Yes. 

Q. This declaration was filed in September -- well, it was 

served on the parties in September of this year? 

A. Yes. 

Q. Just before your deposition? 

A. Yes. 

Q. On page 52 of Exhibit 47, could you read -- no, I'm 

sorry. Let's not do that. Isn't it true at that point you indicate 

that the computer screen used by the North Carolina Legislative 

GIS system displays racial breakdown as the plan design is 

working and does not supply political breakdowns? 

A. That's my belief at the time based on the software used 

in Louisiana, which is the same software used in North 

Carolina. 

Q. As I asked you in your deposition if you were familiar 

with the North Carolina computer system, you said yes, it's the 

same as Louisiana? 

A. Yes. 

Q. Did you ever bother to learn about the North Carolina 

system? 

A. Yes, I have. 

Q. Is that when we provided you exhibits showing [*261] 

photographs of the computer screen? 

A. No, I subsequently asked counsel to inquire on that 

matter. 

Q. When I deposed you, you still believed that the person 

drawing the districts could only see racial data? 

  

 



  

139 

A. That's correct, yes. 

Q. That was one of the bases for your concluding that you 

only needed to look at race data, isn't it? 

A. Yes. I now looked at the screens. I can see it's very 

inconvenient to explain political data, much more convenient 

to display racial data. 

Q. But you were -- this was not correct and you based your 

whole -- you based your reasons -- excuse me. You were not 

correct about the computer screens in the data available to the 

General Assembly? 

A. That is correct, yes. 

Q. In Tables One to Four in your Exhibit 47, you found 

that race predominate district because the portions of split 

counties and towns were more heavily African American, 

which assigned to District 12 or district 1 and more white when 

assigned to an adjacent district? 

A. That's part of the inference, yes. 

Q. Haven't you also testified that African Americans are 

probably the most reliable Democrats? 

A Yes. 

[*262] Q. ~ And they register and vote heavily as 

Democrats? 

A. Yes, that's true. 

Q. I think percentage you have been using is 95 to 97 

percent? 

A. As registered Democrats, yes. 

Q. Okay. Doesn't it follow then that the assignment of 

high African American -- if you find the assignment of African 

American precincts District 1 and 12 is not inconsistent with a 

political motivation, is it? 

 



  

140 

A. It's inconsistent, as some of the white precincts are 

Democratic as well. 

Q. Are the white precincts as heavily Democratic? 

A. No. 

Q. In terms of saying the most Democratic “heavily 

precincts, it's not inconsistent with political motivation, is it? 

A. If the goal, as I believe the goal to be, is to create a 

district with as large a percentage African American population, 

as large a Democratic percentage as African American, that's 

not an inconsistent conclusion. 

Q. I's also not inconsistent with a conclusion that politics 

predominate district, is it? 

A. It is inconsistent if you assign all of the majority 

African American precincts to either District 12 or District 1 

and then you don't assign certain Democratic [*263] precincts 

to it. The theory would be that if you are going to assign and 

create Democratic districts, then you would assign Democratic 

precincts. 

Q. But, Dr. Weber, your Tables One to Four do not pick 

and choose between precincts. You just said if you don't assign 

particular white precincts, your table does not distinguish 

whether a white Democratic precinct is right next to District 1 

or is somewhere out there in the county somewhere; isn't that 

right? : 

A. No. I know that because of the maps, but Table One, 

Two, Three and Four is about split counties and split cities. 

The precincts are dealt within table five. : 

Q. That's right. But your split counties -- all right. let's talk 

about table five. There you are, you have after American 

precincts, you show where they are assigned to the different 

  

   



    

141 

districts? 

A. Yes, ma'am. 

Q. Isn't it assignment of the heavily Democratic precincts. 

Wouldn't you get the same Table Ffive if you -- excuse me. 

Wouldn't you get the same Table Five with the racial 

breakdown if what the Legislature did was assign a heavily 

Democratic precinct? 

A. You might at the top have the same precincts. As you 

get down further to the middle of the table, you would have 

deviations from the pattern of racial assignment [*264] versus 

political assignment. 

Q. Are you talking about Table Six now? 

A. No, I'm saying if one were to have put the political data 

into Table Five as well as the racial data and then you sorted 

the table based upon, say, the 1990 Gantt/Helms race, there 

would be some precincts at the top that would be the same in 

both tables. But as you go down in there, you would have some 

Democratic precincts that would be higher in the Democratic 

table versus those that are in the racial table. 

Q. But you still would have created a Democratic 

performing district and you would have started with your 

heaviest Democrats or most loyal Democrats? 

A. If you had chosen to do that, there are adjacent areas in 

Forsyth, Guilford and Mecklenburg County that are Democratic 

that are not assigned to District 12. 

* % *k 

[*269] Q. Your tables one through five, where you are 

looking at the assignment of African American precincts and 

 



  

142 

other precincts, it would be fair to say that's purely [*270] 

circumstantial evidence, isn't it? 

A. I don't consider myself an expert on evidence, but 

Theard that term used to describe the kind of work that I'm 

doing, yes. : 

Q. Well, it could be when you look at your data, you might 

see a racial split on the raw numbers. That's what some of your 

data is showing, right? 

A. Yes. 

Q. It could be there's a non-racial motive for a split county 

or split precinct that wouldn't be reflected in your data; isn't that 

correct? 

A. There are some counties in Table Two, for example, 

that 1 would assert are not racial, but they are not assigned to 

District 12 or 1. 

Q. If you don't add that extra piece of information that 

those are county lines that are dividing those towns, then you 

could just conclude that race predominate district? 

A. No. Idid put an asterisk in Table Three and Table 

Four whenever the county lines split the community, and that's 

noted in that data base. For example, best example is Rocky 

Mount. 

Q. And you did -- you took that information and you put 

those stars on your table. But that's not something you would 

know when you had just taken your tables and run the data? 

[*271] A. No. All of this has to be done in conjunction 

with maps. You can't address this without the maps that you 

are using. 

Q. Well, if there was direct evidence and testimony that a 

particular town was split so that a military base could be put 

  
 



  

143 

into a particular district, that wouldn't show up on your tables, 

would it? 

A. No, it wouldn't. I'd have to go to the record to know 

that took place. 

Q. But that would defeat a'racial interpretationof your data 

for that town? 

A. No. My experience in terms of how military bases have 

been dealt with in congressional redistricting suggests that 

typically Democratic incumbents want military bases so that 

they can have nonvoters in their districts, and I speak of that as 

a Democrat. 

Q. What if 1 told you that military base was put into 

District Three, which is a Republican district, with the intent of 

the Legislature to keep a Republican? 

A. It's a marginal Republican district, but the overall 

pattern that I have seen around the country is Democratic 

incumbents want -- 

Q. That overall pattern does not fit the facts in North 
Carolina. 

A. In that particular one case, it does not fit that [*272] 

fact, no. 

Q. But then your data tables don't reflect any of the real life 

decisions made by legislators such as that, do they? 

A. No. It reports the data as the decision was made and 

adopted and precleared by the Department of Justice. 

Q. Now, I think your data does not go quite that far, but it 

merely reports there are some racial divisions from which you 

concluded race predominate? 

A. That's correct. 

Q. But direct evidence could show that any number of 

 



  

144 

those divisions had nothing to do with race? 

A. It's possible for that to happen, yes. 

Q. For purposes of your analysis, you don't need to know 

or care to know? 

A. No. I do -- again, I read the record and if the record 

speaks to it, [ know it. Ifthe record doesn't speak to it, I wasn't 

personally present always here in Rleigh when the plan was 

adopted. I wasn't sitting by the computer watching the man 

move the mouse. 

Q. You don't know anything about North Carolina politics? 

A. I would submit that's not true. 

Q. Well -- 

A. You could probably stump me with some trivia, [*273] 

certainly. i 

Q. I certainly would not care to stump you with trivia, but 

you don't contend that you know the political issues that were 

before the legislature when it drew the 1997 particular ones 

relating to particular incumbents? 

A. I don't know the gambit of all the issues, no. 

Q. You don't know the House was controlled by the 

Republicans and Senate controlled by Democrats? 

A. That's true, and I know that. How would I say -- I know 

there was concern with preserving the two African American 

majority districts. It's evident in the '97 Plan that that concern 

was met. 

Q. You didn't see any concern by the Legislature. The 

plan was to maintain a partisan 6/6 split? 

A. Did not result in a partisan 6/6 split. 

Q. Based on the performance data, the districts were 

supposed to be a 6/6 split, weren't they?  



  

145 

A. That's my understanding, yes. 

Q. You looked at all the performance data? 

A. Yes. 

Q. You looked at the ncec data? 

A. Yes. 

Q ‘ Wasn't there a democratic performance number for each 

of the 12 districts? 

A. Yes, there is. 

[¥274] Q. And isn't it also true that based on, say, the 

NCEC performance data that there would be at least six 

Democratic districts? : 

A. I'd have to confirm that, again, because I don't have that 

in front of me. 

Q. So you only cared that two African American 

incumbents had safe Democratic districts and you didn't bother 

to look to see if what the Legislature was saying was true, 

whether or not, in fact, it preserved a 6/6 Democratic split for 

Democratic incumbents? 

A. I can look at it, but I don't have the data in front of me 

to confirm it. 

Q. Since that's the Legislature's -- since what the 

Legislature is saying, they were drawing districts based on 

politics, wouldn't you have looked to see if, in fact, that was 

true? 

A. Yes. I can't confirm it for you because I don't have the 

data in front of me. 

Q. But you do remember the racial data. You do 

remember? 

A. That is so stark. It stands right out. 

Q. And the political data is not as stark? 

 



  

146 

A. No. 

Q. I thought you said these were very safe districts? 

A. There are probably seven or eight that are quite [*275] 

Q Seven or eight are quite safe? 

A. Yes. 

Q. Are a number of those Republican? 

A Some of them are Republican, yes. 

Q. Do you think if the Legislature, if the members of the 

House thought it was not at least six Republican districts that 

they would have agreed to the plan? You are a political 

scientist? 

A. Right. 

Q. I mean, doesn't common sense say that somebody 

thought in the House of Representatives of North Carolina that 

Republicans were to get six districts? 

A. I suspect that was the goal, yes, to get six districts. 

Q. And as a political scientist, you would say that the 

Democrats felt they made their best efforts to create six 

Democratic districts? 

A. I doubt whether or not they would say they made the 

best effort. 

Q. As a political scientist -- 

A. I can only assess it from hindsight now because of what 

happened in the '98 election. Again, several of those districts 

were not even drawn in '97, because the '97 12th District and 

adjacent districts had to be redrawn [*276] so the '98 election 

was conducted in somewhat different districts in the center 

Piedmont area of North Carolina. 

Q. You keep wanting to talk about District 8. Isn't it true 

    

  

     



  

  

    

147 

the incumbent did not run in 1998 in District 8? 

A. That's correct. 

Q. Did the Legislature, to your knowledge, know when 

they drew the 1997 Plan the incumbent in the 8th District did 

not intend to run or would not run? 

A. My understanding his announcement came in early 

January of 1998. I may be wrong by a month or so, but I 

believe that's when he formally announced he was not going to 

run. 

Q. And since he was running as an incumbent, as a 

political scientist, do you infer that the Legislature, the 

Democratic party of the legislature thought that District 8 

would remain in Democratic hands? 

A. Yes. But that district was not used in 1998. It would be 

reasonable for them to expect that the district that they drew, 

which was invalidated as a result of invalidating District 12, 

might have been a Democratic district. 

Q. So then you keep referencing the fact that a Democrat 

lost in the 8th District, then all of your references that you have 

been making to the 8th District and the Democrat losing are 

irrelevant since they don't relate to the 1997 [*277] plan? 

A. Well, there were counties of overlap, but there were 

some counties that were -- 

Q. I wondered why you kept talking about the Democratic 

loss in each district, but it was under the 1998 Plan, so it doesn't 

matter anyway. 

You did a number of analyses about the District 1 and 

12 to determine that they were safe Democratic districts; is that 

correct? 

A. Yes, but I also looked at participationand took that into 

 



  

148 

account. 

Q. I'm just talking about safe districts. 

A. Yes. 

Q. You did that? 

A. Yes. : 

Q. And you did not look at the other ten districts yourself. 

You did not take the same political data and run the same 

numbers to determine anything about the safeness of the other 

ten districts; is that correct? 

A. That is correct, yes. 

Q. Is that because you were only concerned with whether 

or not the two districts that had African American incumbents 

were safe? 

A, No. It was really a resource issue. It was time and 

resources. 

[*278] Q. Okay. Now, a few moments ago, am I correct 

in understanding, as a political scientist, I guess, or personally, 

and you can answer it either way, you disapprove of the general 

tendency of legislators to create noncompetitive districts? 

A. That is as a political scientist, yes. 

Q. As a political scientist? 

A. Yes. 

Q. Is that because you don't believe the country or voters 

need a lot of safe congressional seats? 

A. No. The theory is different. It is to say if voters want 

to have an opportunity to go to the polls in general elections 

and technically throw the rascals out, if the rascals have drawn 

the districts in ways that it's virtually difficult to do that, why 

should a person vote? You might argue with a person, just 

don't bother to show up and vote because it won't matter, 

  
 



  

149 

particularly if you are in the minority party. 

Q. In the real world, the Legislature, this interest in not 

having -- excuse me, I have my double negatives. 

In the real world of the Legislature, they are not 

interested in having all the seats competitive; isn't that correct? 

A. Well, my experience in studying this across the country 

and having been advising state legislators on [*279] occasion 

on these issues, I generally observe that politicians want to have 

safer districts rather than competitive districts. 

Q. And that's not anything based on race, is it? 

A. Well, race can be used to accomplish that. 

Q. But you said that's a general tendency? 

A. Whether you are talking to an African American 

member of the Legislature or white member of the Legislature, 

when they are talking about their own seats, they are very 

interested in that when doing congressional districts they take 

‘that into account as well. 

Q. I believe, consistent with this, when you gave your 

deposition, you didn't think much of the idea of a legislature 

maintaining a core of an incumbent's district? 

A. Well, if it means that maintaining the core means you 

are going to ignore race neutral principles, then you have to put 

aside the notion of preserving the core. Seems to me 

preimminent is this notion of applying race principles in the 

area of redistricting. If you don't apply the race principles and 

you ignore them and they do things like preserve the core 

history, that's suspect. 

Q. For the Legislature, when it is preserving the core of a 

district, is it also looking at trying not to disrupt the election, 

the -- is the Legislature looking at not trying to disrupt the 

 



  

150 

relationship of an incumbent and its [*280] voters? 

A. Generally incumbents do not want to disrupt this 

relationship. Whatever they end up -- whatever districts they 

end up with, they tend to, in the end, like and wish to preserve 

as long as they can. That's been an observation over decades 

and decades of the study of redistricting. 

Q. And there are benefits to the incumbent because he 

knows his voters? 

A. Yes, of course. 

Q. But they also know their incumbent? 

A. But if they happen to be in the minor pattern, they might 

be marginalized or submerged within a district drawn for 

partisan of the other party and, in effect, they don't have as 

much opportunity to throw the rascals out if they want to throw 

the rascals out. 

Q. So preserving the core of the district is something that 

legislators practice, and it's not necessarily racial at all; isn't that 

true? 

A. That's true. It's practiced every time this occurs. 

Q. And that's not only traditional, but probably historical 

traditional redistricting criteria? 

A. It is historical and traditional, but it is not race neutral. 

Q. But it's not necessarily racially motivated either, [*281] 

is it? 

A. Not necessarily, no. 

Q. Dr. Weber, would it be fair to say that in the 

redistricting process, you don't really trust leaving redistricting 

to the legislators? 

A. I think that's a conclusion that I have reached and I have 

said it in my academic writing. 

  
 



151 

Q. ‘In fact, didn't you tell me that you thought that the best 

results, what happened in Louisiana and Georgia after their 

congressional districts were overturned, that they let the federal 

Judges draw the districts? 

A. Yes. The federal Judges in those two states happened 

to draw what I think are the fairest districts for the 90's. 

Q. Now, in your report, you've talked some about the e 

1980's plan, the congressional redistricting plan? 

A. Yes. 

Q, I believe you went so far as to say that you felt that that 

should be the benchmark for looking at the '97 Plan; is that 
right? 

A. It should be the benchmark for all activities in the 
1990's until there's a constitutional plan adopted. That was the 
last constitutional plan. 

Q. But isn't it true using the 1980's plan as a benchmark is 

a little difficult because it only had 11[*282] congressional 

districts? 

A. For the purposes of simply population, it would be a » 

difficult benchmark to follow, but for purposes of assessing the 
race neutrality of that plan versus the race consciousness or the 

race predominance of the 90's, it's a very appropriate 

benchmark. 

Q. And isn't it true that the legislator in the 90's -- and this 

includes in 1997 -- they had to put that 12th District 

somewhere; isn't that correct? 

A. Yes. There has to be a 12th District because population 

mandates it, yes. 

Q. And didn't you tell me previously that the greatest 

population growth between the 1980's and 90's in North   
 



  

152 

Carolina was the Triad and Piedmont area from Charlotte to 

Durham? 

A. Yes. 

Q. So it makes sense, if you have to put another district in, 

put it there? 

A. Yes. That's exactly what the Legislature did in the 1981 

Plan, put a district in the counties between Charlotte and 

Winston-Salem. 

Q. As a matter of population, that's not unconstitutional to 

put the district there? 

A No. At that part of the state at the time, it was a race 

neutral plan. 

[*283] Q. And in 1997, because of the population in that 

area, it would still make sense to put a district in that Piedmont 

area? 

A. But you do not need to put a district between Charlotte 

and Greensboro, Winston-Salem. 

Q. Well, in 1997, is it necessary to disrupt all the other 

districts even more? Why not put your Democratic district 

there? 

A. The disruption occurred in 1992 and continued for '94 

and '96. J 

Q. Is there anything unconstitutional that you know of 

about the desire to put a Democratic district, make a 

Democratic district the 12th District Democratic? 

A. To make it Democratic, no, there's nothing. 

Q. And, in fact, the legislature succeeded in keeping and 

making the 12th District Democratic? 

A. Yes, less Democratic than the 1992 Plan, but it is still 

Democratic. 

  

  

   



153 

Q. Well, they had to cure the constitutional defects, didn't 
they? 

A. Yes. 

Q. It's not over 50 percent African American district, is it? 

A. No. 

Q. By putting a Democratic district there, the [*284] 

legislature was able to meet its goal of maintaining a 6/6 @ 

partisan balance in the congressional districts? 

A. Alternatively, it could have done as 1991 and put all of 

Mecklenburg County together as an adjacent area had a 

marginally -- 

Q. What would that have done to the Republican in District 

9 and Democrat in District 8? 

A. You would have a very competitive race with one of 

them losing their seat. 

Q. Wouldn't you say that the incumbents who would be 

affected by such a plan might have had strong words and 
concerns with the Legislature? 

A. Again, the question is, is it constitutionally -- guess @ 

it's not constitutional then the whole question of incumbent 
protection has to go away when constitutional questions arise. 
Q. Well, Dr. Weber, it's not unconstitutional for a state to 

draw a districting plan that's balanced 6/6, is it? 

A. As long as they do it in a race neutral way and don't 

support a traditional race neutral principles. 

Q. And drawing a 6/6 partisan balanced district would not 

be a democratic gerrymander, would it? 

A. It would be a bipartisan gerrymandering in that sense. 

[*285] Q. So -- but you think the Legislature to obey some 
neutral redistricting principles had to disrupt the Republican in     
 



  

154 

District 9 and the Democrat in District 8 and draw a different 

district there. They couldn't draw this district? 

A. That's correct, yes. 

Q. Now, turning to your Table 6, which is in your Exhibit 

47. 
A. Yes, ma'am, I'm there. 

Q. Did you do an Exhibit 309 that related to those tables or 

am | in error? 

A. I believe Exhibit 309 so related to Defendant's Exhibit 

434 or maybe 435 -- no, 435. 

Q. Let's look at Table 6, Exhibit 47 starting at page 68. 

I think when you testified about this table, you were 

talking about this shows some Democratic precincts that are not 

put into District 12; is that correct? 

A. Yes. 

0, Okay. Now, this table does not take into account, does 

it, where any of these precincts are located? 

A. No, I have to have the maps to go with this to do that. 

Q. When you sat there on the witness stand and added up 

the number of precincts of Democratic precincts not put in 

[*286] the district, you did not intend to imply that all of the 

ones that you listed here that are high-performing Democratic 

precincts could, in fact, geographically even go in the district? 

A. No, I later did that with the maps. 

Q. Did you -- in fact, when you looked at the map, did you, 

in fact, correlate them with the numbers you added up here? 

Can you take the numbers -- when you added up here, you said 

there are eight precincts here that are highly Democratic that 

should have been in. Did you go to the map and find those 

eight precincts? 

  

    
 



  

  

      

155 

A. I went to the map and found the precincts and came 

back to the tables and looked at the tables. 

Q. You found the eight exact precincts? 

A. For Forsyth County, I did. 

Q. Well, then you did determine that all of those precincts 

geographically couldn't go in the district, didn't you? If you 

went and looked at the map, isn't it true that whatever youll 

added up here, you went and looked at the map, you would find 

all of those numbers you added up could not geographically go 

into the district? 

A. Not all of them, yes. 

Q. And you didn't do a chart for us to say how many could 

or couldn't? 

A. No, I didn't. 

[*287] Q. You added up numbers, said look at all the 

Democratic precincts based on the chart that aren't in the 

district? 

A. That's correct. 

Q. But nothing to say geographically they could go in +4 

district? 

A. No. 

That doesn't correlate necessarily with the numbers you were 

informing the Court about, does it? 

A. No. Those were based on the map. 

Q. I'm talking about you sat there on the stand and added 

up, said you go here and add all of these Democratic 

performing districts. You have x number that are not in the 

district? 

A. That is correct, yes. 

Q. All right. Isn'tit also true when you look at these tables 

 



  

156 

and you add them up, say these highly performing Democratic 

precincts were not put in the district. Isn't it true that you can't 

fit all of these Democratic performing districts in the district? 

They would bust one-person, one-vote? 

A. You would have to take other precincts out. If you 

focus on Table 6 on Mecklenburg County, you could put all of 

Mecklenburg County in one precinct. 

Q You don't know whether the Legislature would have to 

take out a higher Democratic performing precinct just to [*288] 

put in one of these that you thought should go on in? 

A. You would have to make a choice which one should go 

out and you have to do that every time you do this. 

Q. That choice could be based on Democratic 

performance? 

A. Could be based on Democratic performance, yes. 

Q. Your chart here is showing some higher Democratic 

precincts were not put in, does not tell you that the decision was 

based on race, it may have been based on one-person, one-vote? 

A. If you look at the rest of the table, all the majority 

African American precincts are put in District 12, every one of 

them. ; 
Q. But you already testified those are the most Democratic 

performing precincts in North Carolina? 

A. Yes, they are. 

Q. And doesn't it make political sense to put the most 

Democratic performing precincts into District 12 if you are 

trying to create a democratic district? 

A. You can draw Democratic districts without putting all 

of the African American majority precincts into the district. 

Q. Without disrupting all the Republican incumbents? 

  

    
  

 



  

  
  

157 

A. Yes. 

Q. I'm sorry, I don't think I ever saw that plan. 

A. As I answered the questions on direct to Mr. Markham, 

[289] you can take Precinct 877 out and still have a 

Democratic performing district in Mecklenburg and all the rest 

of the counties. You can take other African majority precincts 

out. That's what happened in the 1998 Plan. They took all of (ff) 
Guilford County out and it's still performing Democratic. 

Q. ~~ What if the direct evidence showed that the. south 

eastern side of Mecklenburg that's in District 9 -- that's 

connected to District 9 by Precinct 77 -- what if the direct 

evidence were the incumbent in District 9 would want those 

precincts in the district? 

A. In this hypothetical, we would be taking 77 out of 12 

and putting it in 9, so you would have a broader corridor 

between the eastern part of Mecklenburg County and the 

western part of Mecklenburg County and you just substitute 

another Democratic precinct from somewhere else in the 

precinct to go in 77. p 

Q, You, of course, have no constraints based on any 

incumbents or legislator's wishes about how you draw the 

district, do you? 

A. Right. I know this, there's no incumbent who has a 

residence in Precinct 77. So that would not -- 

Q. There's not anybody who lives in Precinct 77? 

A. Yes. There is, there's a substantial population. 

Q. Not the part assigned to District 9, okay? 

[¥290] A. Yes. 

 



  

158 

[*290]Q. Now, Dr. Weber, earlier in your testimony -- 

or yesterday in your testimony, you referred to Exhibits 265, 

266 and 268 I'm not asking you to pull them out, which were 

thematic maps of Forsyth, Mecklenburg and Guilford 

County. Do you recall these maps? 

A. Yes, ma'am, I do. 

Q. You were counting adjacent precincts that you 

contended should have been included in the 12th District, as I 

recall? 

A. That's correct. 

Q. Because they were high performing in that particular 

election? 

A. That one single election, yes. | 

Q. © Your counsel had you look at Joint Exhibit 140 

[*291] earlier today. Excuse me, 140. You still have exhibit 

140, 141, 142 up there? 

A. No, I don't. 

Q. Okay. 

Ms. Smiley: May I approach the witness, Your 

Honor? 

Judge Thornburg: Yes. 

By Ms. Smiley: 

Q. If you would look at Joint Exhibit 142. I'm sorry, 

there may be an index in the front. 

A. Yeah. I'm there now, okay. 

Q. All right. Now, I believe you testified that what this 

map shows is the elections in all three results that are on the 

North Carolina computer system are tabulated, and I believe 

the data is right behind as part of the exhibit, where that takes 

each precinct that goes around Mecklenburg County and it 

  

  

  

   



  

  

  

    

159 

has the election results and the three elections that are on the 

North Carolina computer data base; is that right? 

A. That's correct. 

Q. It tallies the data -- tallies up the number of 

Republican victories; is that correct? 

A. That's correct. 

Q. And Exhibit 142 is the thematic map showing the ® 

Republican victories in the precincts that surround that 

[*292] portion of Mecklenburg County in District 12; is that 

correct? 

A. That's correct. 

Q. And correct me if I'm wrong, but in terms in 

immediately adjacent precincts it looks like there's only one 

Democratic performing precinct that immediately abuts 

District 12 in Mecklenburg County. Is that how you would 

read this map? 

A. Yes. I see one precinct in yellow. It's Charlotte 

Precinct 10. 

Q. And would you infer, because that one precinct is fD 

in District 12, that there's a racial motive about that district 

line where they put that precinct in the District 127? 

A. No. My inference is there were other precincts 

carried by Harvey Gantt in 1990 against Senator Helms. 1 

‘would put all of those precincts in there because that's the 

most recent and best indication of democratic performance 

for African American candidate in Charlotte Mecklenburg. 

Q. If you were trying to recreate a partisan Democratic 

precinct and not a precinct for African Americans, would you 

just use the Gantt election? 

A Yes, because I'm particularly concerned about the 

 



  

160 

accuracy of the '88 data for those two races in [*293] - 

Charlotte/Mecklenburg. 

Q. But that's your concern about the accuracy for that? 

A. That's correct. 

Q. In your review of the record and depositions and 

other things, have you heard that, in fact, the Legislature, 

when it wanted to look at Democratic performance, tended to 

look at the Court of Appeals race and the Rand/Smith race 

because they were more truly indicative of Republican 

Democratic strength? 

A. I don't remember particularly where they said yes it 

was the '88 race or '90 race. All I know is I have concerns 

about the reliability of the '88 data. Perhaps those concerns 

were never expressed to the Legislature. 

Q. But do you have any information that the Legislature 

did not rely on political data in its computer data base 

because it had the kind of concerns that you had about the 

data? 

A. No, I do not believe they were told those concerns. 

Q. But you, in fact -- do you, in fact, know whether or 

not they used the data that's in the data base with or without 

the concerns you have? : 

A. I know it's in the data base and I believe Mr. Cohen, 

in his deposition, indicated that the data were sometimes 

used. Now, whether they used it in this part of drawing the 

district, I don't know. 

[*294] Q. Well, you want to draw inferences based on 

the fact that you think the Legislature should have used that 

1990 election. But if that's not what they used, isn't it better 

to look at all the data that they used? 

  

  
 



  
  

161 

A. The best data, in my opinion, is the 1990 Senate race. 

The 1988 races are less reliable. 

Q. And that might not comport with the reality over at 

the Legislature when it was trying to draw districts? 

A. I don't know what they did. 

Q. Okay. But based on this map it looks like the 

Mecklenburg County -- they did a pretty good job of finding 

-- of staying within a city of Republicans? 

A. If you accept the accuracy of the 1998 data. If this 

1998 data is wrong and these other precincts are Democratic 

in '88, if you could properly allocate them from the '88 

precincts to the '90 precincts, I would be more convinced. 

Q. That's the problem with experts and legislators, they 

use the data that's in the machine. 

All right. Now, turning to the other two maps, let's 

start with Guilford County, which is Exhibit 141. Once 

again, you do find that there is a strong wall of Republicans 

going around the vast majority of District 12 in Guilford 

County? 

A. There are four precincts, according to your data, did 

[*295] not go Republican in these three races. 

Q. My question was the vast majority are -- 

A. Well, the vast majority were the three Republican 

victories, two Republican and one -- 

Q. -- there are four precincts that didn't get included? 

A. That's right, and there are additional ones adjacent to 

those. Again, in my map suggested they might have been 

added as well as even though they are not immediately next 

to District 12. 

Q. But the problem with your thematic maps is it doesn't 

 



  

162 

take into consideration things like maybe physical 

boundaries, street boundaries? 

A. Neither does this map. 

Q. Well, you don't know in effect whether or not these 

precincts were excluded by a major thoroughfare in Guilford 

County, do you? 

A. No, I don't. 

Q. You also don't know if there were other 

considerations dealing with an incumbent in Guilford 

County? 

A. I can't imagine why a Republican incumbent would 

want a Democratic precinct; perhaps he did. 

Q. If the incumbent was from the city of Greensboro; 

might he want Greensboro precincts? 

A. Equally he would probably want marginally 

Republican [*296] precincts. 

Q. Then there's the issue of one-person, one-vote, isn't 

there? 

- A. Yes. That's why you take out precincts and put 

precincts in. 

Q. Exhibit 140, the thematic map of Forsyth County, 

there is a Republican wall. Every one except on the left-hand 

side of District 12 in Forsyth County; is that correct? 

A. Yes. 

Mr. Markham: I object to the Republican wall. We 

said the internal precincts are not colored. I don't believe it's 

clear whether or not some of the ones in the connector may 

have voted Republican on all three occasions. 

Judge Thornburg: We have no problem with 

understanding what they are talking about. All right, go 

  

  

  

  

 



  

  

  

  

163 

ahead. 

By Ms. Smiley: 

Q. I believe you pointed quite a bit to these Democratic 

precincts that were not included in the 12th District? 

A. Yes... 

Q. Now, do you know of any other reasons in the 

Legislature, that are not based on this kind of data, why wd 

precincts might not have been put into the 12th [*297] 

District? 

A. I remember reading in the record Congressman Burr 

wanted as many Republicans in his district as possible, since 

that's his home area. 

Q. Do you remember anything about where he lives? 

A. No, I don't know precisely where he lives. I think 

somewhere in the record there's indication of the precincts, 

perhaps in the stipulations, but I don't know exactly where 

Congressman Burr lives. 

Q. So there might be some nonpolitical and nonracial 

reasons that explain that group of yellow precincts? w» 

A. He wanted Winston-Salem precincts and he was 

willing to take Democratic Winston-Salem precincts, even 

though this was a Democratic plan. 

Q. So the Democrats, in order to come to a compromise 

with the Republicans in the Legislature, didn't get everything 

they wanted? 

A. I don't remember seeing any of the earlier plans that 

incorporated any of these precincts. I don't believe these 

precincts were involved in District 12 early in the process of 

'96 or '97. 

Q. One of the real world reality, when you say a 

 



  

164 

Democratic precinct is not included, there may be factors 

such as the Democrats couldn't get every Democratic precinct 

for in dealing with the other? 

[*298] A. I don't know that. 

Q. That's right. You just can't know that from the data 

you are looking at? ; 

A. But as a political scientist looking at the data, the 

best partisan explanation would be to take the partisan 

precincts. 

Q. You referenced the Pildes and Niemi article? 

A. Yes, ma'am. 

Q. About compactness? 

A. Yes. 

Q. Isn't it true that Pildes and Niemi, in terms they 

created these dispersions and compactness measures, and you 

have an article in here where they compared congressional 

districts nationwide; is that correct? 

A. Yes. They did not create these. These were created 

by persons at a company called Election Data Systems. They 

made these available to Pildes and Niemi and also, in some 

of the discussions, in my report I reference a David 

Huckabee at the Congressional Research Service. He had the 

same scores made available to him. 

Q. Dr. webster, you read his report and he got numbers 

like Pildes and Niemi in North Carolina districts? 

A. For the old districts, similar numbers, yes. 

Q. It's fairly accepted in terms of if you are going to do 

the mathematical measures of compactness, these are [*299] 

formulas experts share and people have the data and you 

share that data? 

  

  

 



165 

A. It's generally accepted the two most commonly 
reported upon are the dispersion and compactness. 
Q. Isn't it true Pildes and Niemi established a benchmark 
for determining whether a district is compact or not under 
those measures? 

A. They suggest there's a score below, which you want 
to become concerned about the geographical compactness N 
the congressional districts. 
Q. Although they would not conclude just because it fell 
below that score it was necessarily not compact? 
A. No, they suggested it raises the flag. The 
investigator would want to go into other information and 
determine what was it that caused the district to be created. 
Q. Isn't it true that District 1 is above that benchmark on 
both perimeter and dispersions measures? 

  A. Yes, it is. 

Q. So Pildes and Niemi would not raise any red flags? 
A. For District 1, that's correct. 
Q. Now, you talked -- you also showed us an article and @ 
looked at the financing of the Republican candidate in the 
1998 general election who ran against incumbent Watt? 
A. Yes. That was in the Almanac of the American 
[*300] Politics letter. 
Q. You were satisfied he had sufficient finances? 
A. The challenger had 381,000 to spend against 687 for 
Congressman Watt. I think most political scientists would 
tell you that's a reasonable amount of money. So one could, 
in fact, spend the money on vote mobilizing and vote 
persuasion kind of techniques to make them a credible 
candidate in that race.  



  

166 

Q. Well, you are aware that six Republicans ran in the 

primary? 

A. Yes, I am. 

Q. Okay. And you are aware that none of them came 

even close to 40 percent? 

A. Right. It was a very divided Republican Party 

electorate in the primary. 

Q. In fact, did anyone even obtain as much as 25 percent 

of the vote? 

A. I don't remember the precise numbers. 

Q. But it was pretty split; the percentages were far below 

40 percent? 

A. Very divided. 

Q. And there was no runoff? 

A. That's correct. 

Q. Well, wouldn't that indicate to you that perhaps the 

Republicans were not able to put forth their best 

[*301] candidates since they didn't get to have a runoff? 

A. Not necessarily. All over the country -- practically 

every part of the country, except a few southern states, you 

give the nomination to the person who gets the most votes. 

So it's common to have less than 50 percent of the vote and 

be the nominee of the party. 

[*306] Q. All right. In your report, which is exhibit 47, 

at pages 74 and 75, 

A. Yes, ma'am. 

Q. You do a discussion about whether or not you can 

  

   



    

167 

draw -- whether or not you can create an African American 

majority district in the area that it encompasses District 

[*307] 1; is that correct? 

A. Yes. Begins on page 75, paragraph 73. 

Q. But I notice your methodology, when you talk about, 

I believe it's on paragraph 75, and you said when you grou 

whole counties, when you got those whole counties sound 

together, the total population of the African Americans, the 

most you can make it was 42.91 percent; is that correct? 

That's on page 77, paragraph 75. 

A. Yes. 42.91 percent African American of the total 

population. 

Q. Dr. Weber, did you testify that you have given -- 

advised legislators about complying with voting rights act 

issues? 

A. Yes. 

Q. Is it your testimony to the Court that you would 

advise a Legislature, in attempting to comply with voting 

rights act, that if it could not create a majority African 

American district using whole counties that, in fact, they 

could forget the voting rights act? 

A. I don't remember words to that effect. 

Q. You are not then -- then why in the world is your 

methodology here of using whole counties relevant to any 

issue of whether or not you can create a majority black 

precinct in the area encompassing District 1? 

A. It's relevant because it's applying race neutral [*308] 

principles and in drawing a constitutional plan to comply 

with Section 2, one has got to incorporate the two elements. 

So you are not only talking about compliance with Section 2, 

 



  

168 

but you have to draw a reasonably exacted language in 

Gingles of geographically concentrated and sufficiently 

numerous. 

Q. Then you are testifying that a state, if it cannot draw 

an African American precinct using whole counties, does not 

have to comply with Section 2 of the Voting Rights Act? 

A In this particular case, my analysis suggests there's 

no reason to believe if you have been sued by Plaintiffs in 

1991, '92 because you failed to draw a majority\minor district 

that you would have lost that lawsuit. 

  

Q. But in your analysis on page 75, you are using whole 

counties and you say using whole counties you can only get 

it up to 42.91 percent? 

A. That's correct. 

Q. So your testimony and your belief is that the State is 

not -- this state, the State of North Carolina does not have to 

be concerned with Section 2 of the Voting Rights Act, if 

using whole counties it cannot create a majority African 

American district? Ea 

A. That's because they are using in two principles. 

Q. What makes you say that counties are race neutral 

[*309] principle here in North Carolina? 

A. They are political subdivisions. Historical divisions 

in North Carolina is to keep the counties together. 

Q. Are you familiar with various litigation events in 

North Carolina where the use of whole counties have been 

struck down? I believe Gingles itself said you couldn't keep 

counties whole, you can split them? 

A. Gingles is about State Senate, State House districts, 

about multimember districts and I don't dispute that there's a   
 



  

  

169 

sufficiently large and geographically concentrated population 
in certain parts of North Carolina where you can, in fact, 
meet the first prong of Gingles for State Senate and House 
districts but you can't for congressional districts. 
Q. Isn't it true North Carolina created a number of maps 
with majority African American districts in the area generally 
encompassesing District 1 and they have done it by cutting 
some counties? 

A. They have cut some counties. My position is they are 
not constitutional plans following race and general 
principles. 

[*311] Q. Dr. Weber, it's not your testimony that it's 
impossible for North Carolina to have had partisan motivation 
to create District 12 but still not include every possible 
Democratic precinct in its borders, is it? 
A. No. Because as I responded to Ms. Smiley, there might @ 
be some Democratic precincts in say the six counties of the 
12th district you couldn't get in there because they are too far 
afield from the abutting line. | 
Q. And, in fact, in your opinion, congressional Districts 1 
and 12 are already overly safe districts, even without those 
additional Democratic precincts? 
A Yes. Again, in the 1997 Plan, yes. 
Q. Dr. Weber, if you -- Dr. Weber, in examining Plan '97, 
the 1997 Plan, you had testified before, I believe, that there 
were Democratic precincts in District 12 that you would or 
could perhaps move to District 8. Do you recall testifying to 

 



  

170 

that? 

A. Yes, I do. 

Q. Let me ask you: in order to do that, if you look at the 

map there, in order to move precincts from Mecklenburg 

County, for example, or actually if you want to move it from 

Mecklenburg County to District 8, wouldn't you have to cross 

Mecklenburg County in order to do that from District 8 or 

actually -- 

A. . No. If you are going to add a portion of Mecklenburg 

[*312] County to District 8, then you would have to swap some 

population from District 8 into, say, District 9 or District 12. 

Q. Actually, my question was: if you were going to move 

precincts that are currently in District 12 that are in 

Mecklenburg County and move those precincts into District 8, 

wouldn't you have to cut or actually move into or cross 

Mecklenburg County line? 

A. Yes, you would have to do that. 

Q. Wouldn't that result in a three way county split, as it is 

presently configured? 

Yes. 

Looking on Table 7 in your report, which is Exhibit 47? 

Can you help me with the page number? 

Page 80. 

Thank you. 

Do you have it there? 

Yes, I do. 

Now, in this table you are comparing white and African 

American participation; is that correct? 

A. Yes, in the Democratic primary of the Democratic 

runoff primary. 

R
P
L
P
L
O
L
P
L
O
P
>
R
O
P
 

  

  

   



  

    

171 

Q. All right. Now, in North Carolina you are aware that 
only Democrats and unaffiliated voters can participatein [*313) 
a Democratic primary? 
A. That's correct. 
Q. So Republicans are not eligible to participate in the 
Democratic primary? 

A. That's correct. i 
Q. Looking on Table 7, the participation percentages you 
list there under the African American column, for example? 
A. Right. 

Q. Those African American percentages are registered 
voters, almost all of whom are eligible to vote in the 
Democratic primary? 

A. Yes. 

Q. And looking at the white percentages, those would be 
percentages of white registered voters but would include 
numbers -- voters -- include in those percentages voters that 
might be republicans and, therefore, ineligible to vote; is tha 
correct? w 
A. Yes, some. 

Q. So, for example, on page seven, the very bottom there, 
1998 Congressional District 12 U. S. Congress under white 
participation? 

A. Right. 

Q. The .025 number that would be a portion of all white 
nonproportion of all white voters eligible to participate in the 
primary? 

[*314] A. That is correct. 
Q. So this analysis that you lay out in table 12 doesn't give 
you a comparison of participation between white Democrats 

 



  

172 

and African American Democrats, does it? 

A. That's correct. 

Q. As a result, your conclusion regarding participation 

rates between African Americans and whites, by including 

Republicans, white Republicans who are not eligible to vote, 

your results are artificially deflated with regard to white voters 

and African American participation? 

A. If we could, in fact, separate out the white Republican - : 

voters from the white Democratic voters, each of the 

participation estimates would be higher for the white 

participation rates. They would be not much higher for the first 

congressional district because they have a high percentage of 

white Democrats in the First Congressional District who 

participated in the Democratic primary. You would have a 

more severe effect in the 12th District. 

Q. So these are artificially deflated vis-a-vis African 

American participation; is that correct? 

A. Particularly for District 12. 

Q. In your report, which is Exhibit 47 on page 89, 

paragraph five -- 

A. Yes. 

[*315] Q. -- you mention that African American voters 

residing in District 1 and 12 in the 1997 Plan do not participate 

in lower rates than white voters in recent Democratic primary 

runoff elections, indicating any evidence that history or official 

discrimination has any lingering effects that would impact voter 

registration? 

A. That's correct. 

Q. Looking at the results of your participationanalysis, that 

does not tell us that the lingering effects of past official 

  

  
 



  
  

173 

discrimination, in fact, no longer exist; is that correct? 

A. I believe that is the case. They no longer exist in the 

state of North Carolina. 

Q. But can you base that conclusion upon your analysis of 

the participation rates that we have outlined in Table Seven? 

A. Yes, they are not, if there are lingering effects o 

discrimination. They are not meaningful for iio @ 

They might be meaningful for other aspects of life in North 

Carolina, but not meaningful for political participation. 

Q. I didn't ask you if they were politically significant or 

meaningful. Looking at your results from Table Seven. Based 

on your analysis of the Democratic primaries, you can infer, 

given your errors, you actually deflated the [*316] white 

participation? 

A. I don't believe that I have deflated those numbers 

significantly, so white participation in the Democratic primary 

would be higher than African American participation. 

Q. But you don't really know, do you? 

A. I have a pretty good idea of what percent of the white) 

in District 12, for example, are Republican and I could -- in 

fact, with a calculator, I could quickly do that. 

Q. Dr. Weber, given the information that you had when 

you calculated these participation rates, you had no way to 

factor out by race and by party the number of white 

Republicans who are stated in that race? 

No way I could. 

You could not? 

No, analyst can do that. 

So I'm correct, you could not do that? 

Correct. > 
o
>
»
 

 



  

174 

Q. You could not infer from that information with certainty 

lingering effects of official discrimination have been removed 

using the Democratic primary participation analysis you laid 

out in Table Seven, is that correct? 

A. Yes, sir. I disagree with your premise. I believe [*317] 

that based upon any adjustment that I would make of these data, 

if I could, in fact, accurately estimate white participation rates 

in the Democratic primary, you would still see African 

American participation being higher on the average than white 

participation, whether or not whether we're talking about 

District 1 or 12. 

Q. My question was: you can not, using the analysis you 

laid on table seven, with certainty testify that the lingering 

effects of the official discrimination have been removed based 

upon the analysis you have done in Table Seven? 

A. Yes, I believe it is, with certainty. 

Q. So the answer to my question is yes, you can, with 

certainty, based on your analysis, tell this court the lingering 

effects have been removed? 

A. Yes. 

Q. Based on your analysis of general elections, you 

testified there are no party -- where there are no party 

restrictions and all the white voters are eligible to vote, you 

concluded that black participation was actually lower; is that 

correct? 

A. Yes, tends to be lower. 

Q. And your evidence in the primary is not consistent with 

that evidence; is that correct, given to errors or given the 

deflation of white participation; isn't that [*318] correct? 

A. I didn't understand the question. 

  
 



  

175 

Q. Given the deflation of the white participation in the 
primary election, given that you did not factor out white 
Republicans, the evidence -- your conclusions from that may 
not be inconsistent with your conclusions from the general 
elections; is that correct? 
A. I believe they are inconsistent. I believe that white ® 
participation is lower in the Democratic primary than African 
American participation. 
Q. But you can not verify that with certainty. You could 
not factor out white Republican participationin the Democratic 
primary; is that correct? 

A. I know approximately what percentage of District 12 is 
white Republican. I know what percentage of District 1 is 
white Republican, and if I do that, I do not believe that I take 
away the difference. It narrows the difference. It might in one 
or two elections make the white number slightly higher than the 
African American number. As a general picture, I don't believe 
we will always be higher white than African American. w 
A. In table 9 in your report, Dr. Weber, Exhibit 47, you 
have estimates of white cross-over rates in North Carolina? 
A. Yes. 

[*319] Q. And looking at that table, those rates range from 
a low of 17.9 percent to high of 46.2 percent? 
A. Yes. 
Q. In table ten you lay out the rates; you analyzed the 
congressional races? 
A. Yes, sir. These are the two elections held in the plan in 
District 1 and 12 in 1988. 
Q. That, though, shows Representative Clayton received 
32.4 and Watt received 32.6 percent? 

  

 



  

176 

A. That's correct. 

Q. As a social scientist, you are familiar with the levels of 

white cross-over, the Supreme Court analysis found in the 

gingles case; is that correct? You recall what the ranges are? 

A. I remember vaguely. You would have to show me the 

exhibit to remind me. I remember there was an exhibit in the 

opinion. 

Mr. Cox: May I approach, Your Honor? 

Judge Thornburg: Yes. 

By Mr. Cox: 

Q. Dr. Weber, I've handed you the Gingles opinion and the 

appendix to that opinion actually lays out the amount of voting 

support the candidates received in the districts that the Court 

analyzed in that case. See where I am? 

A. Yes. 

[*¥320] Q. Of the Appendix A. Now, looking at that 

appendix, the levels of white cross-over in the districts which 

the Supreme Court find both dilution in gingles ranged from 20 

percent to a high of 46 percent? : 

A. Say that again. 

Q. The range of white cross-over the Supreme Court found 

in the districts in which it found vote dilution ranged from a 

low of 28 percent to high of 46 percent? 

A. Are we looking at primary or general? 

Q. General elections. 

A. From District 36, District 36 there's a white cross-over 

in 1980 of 28 percent for someone named Maxwell. And I see 

a 46 percent -- well, I see a 49 percent in District 23 in 1980, 

Mr. Spaulding. 

Q. In District 23, they didn't find dilution? 

  

   



177 

A. That's correct. 

Q. Of the districts when they found dilution, I'm not talking 
of those districts. That would be Districts 22, 21, 36 and 39? 

A. Yes. 

Q. And considering that range, those ranges are 

comparable to the ranges that you found in your analysis for 
this case in terms of white cross-over, isn't it? ® 

A. Yes. 

  
  
 



  

178 

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179 
ROY A. COOPER, III TRIAL TESTIMONY (EXCERPTS) 

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

and the first thing that we needed to do-was to cure the 

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

consideration. And I think in general that meant making the 

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

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

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

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

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

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

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

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

of these concerns that were pointed out by the court. 

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

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

and draw a constitutional plan? 

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

constitutional. 

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

A. Most definitely. 

Q. What was the other one? 

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

legislature drew this plan and not the federal courts. 

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

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

Q. But? 

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

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

 



  

180 

with that and the Senate was majority Democratic and the 

House majority Republicanand we knew if we had a plan that 

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

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

the stick. 

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

occurred with respect to the incumbents, the congressional 

delegation for North Carolina? 

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

a delegation of six Democrats and six Republicans after the 

election. 

Q. I'm sorry to interrupt you. 

A. We knew that would be important because the bottom 

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

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

considerationsthat you have to take under consideration when 

you try to do that. 

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

interest of incumbents? 

A. That was a consideration and the reason it's a 

[*336] considerationis that incumbents are in office, they have 

a constituency. They have people who advocate for them in the 

General Assembly. Oftentimes they have close relations with 

legislators, and so incumbents can affect votes in the General 

Assembly. 

And although it would be nice to draw these districts in 

a vaccuum and to make them look nice and to completely 

ignore partisan politics and completely ignore who's the 

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

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

  

   



181 

do that and you have to take into consideration what 

incumbents think about the plan. 

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

your train of thought. As a benchmark, the congressional 

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

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

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

Republican, Democrat; is that correct? | 

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

may know. 

The Witness: That's right. 

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

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

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

congressional elections. 

The Witness: Yes, sir. 

Judge Boyle: All right. 

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

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

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

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

that the partisan fairness of the plan would be an overriding 

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

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

never predict exactly. 

By Ms. Smiley: 

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

that Judge Boyle has just refreshed our recollection with, was 

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

redistricting at that time there was a balance?     
 



  

182 

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

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

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

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

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

wanted to draw the plan to favor Democrats and Republicans 

in the House. : 

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

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

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

manner. So Representative McMahan and I decided early on 

and the leadership of both the House and Senate decided early 

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

split. 

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

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

was fair. 

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

accommodation of incumbents, and accommodating 

incumbents also meant votes in the legislature. As a general 

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

A. Yes, youdo. Legislatorslive in congressional districts. 

Many times their constituents have been in a congressional 

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

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

almost every legislator in the General Assembly has an 

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

district should be drawn. 

Q. And do sometimes the different interests of legislators, 

incumbents conflict? 

  

  

  
 



183 

A. Sometimes they do. 

Q. And do they sometimes conflict with the goal of 

[*339] having a 6/6 split? 

  

  A. Yes, they do. 

Q. Would they sometimes conflict with having a preplan 

or constitutional plan? 

Most definitely, yes. » A. 

Q. But you have to garner votes? 

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

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

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

you could not create a plan that would be constitutional? 

A. Repeat the question, sorry. 

    

Q. Some accommodation might not be made things that 

people wanted? 

A. Yes. 

Q.. Because it might make the plan vulnerable? 

A. Yes. There were requests made that I thought would 
have made the plan unconstitutionaland we just couldn't do @ 

  

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

did you yourself manipulate the calculations? 

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

instructions to a person who normally would do the actual 

mechanical calculations. And most of the time that was Gerry 

Cohen. 

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

[*340] work while you were not there? 

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

just on general instructions, yes.   
 



  

184 

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

or what was your working relationship with Mr. Cohen? 

A. Gerry is maybe more familiar with maps and precincts 

and make up and Democratic performance and Republican 

performance than anybody in the state. He has been working 

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

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

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

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

to do something to try to fix this. 

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

that could be accommodated? 

Yes, he would. 

Did you work with other legislators? 

Yes, I did. 

And did you see a lot of plans? 

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

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

ought to do. 

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

handle the process of getting their input and making sure 

[*341] that you could get your votes? 

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

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

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

their own district without thinking about the other 11 districts 

in the state and that would sometimes cause a problem because 

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

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

  

  

   



185 

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

public. We had discussions, suggestions from the public on 

what we ought to do. 

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

talking of members of the General Assembly, not members of 

congress? 

The Witness: But members of congress also gave ow) 

their ideas. 

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

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

other districts? 

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

other state legislators who had interests in this issue they want 

present us with plans as well as members of congress. 

By Ms. Smiley: 

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

running for office or he's the incumbent? 

A. Yes. 

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

which Judge Boyle has anticipated, is could you describe as 

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

consultation with congress persons or their aides? 

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

or her representative except for Congressman Taylor in this 

process. 

Q. And is his district really in play? 

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

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

much everybody agreed that we ought to straighten up the line 

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

  

    
 



  

186 

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

to him or any of his staff and he didn't ever contact me. But1 

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

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

contact that you had or when in the process? 

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

of Democratic members of congress wherein they came to 

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

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

Some of the members of congress came individually on 

separate occasions and talked with me. 

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

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

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

they started working off of that and giving me ideas or 

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

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

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

representing them and many of them wanted to do that. 

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

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

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

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

Senate committee. I think it was in February sometime. 

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

right. You were talking to legislatorsand congress people. Did 

you begin talking with Representative McMahan? 

A. Yes. 

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187 

| {i Q. Could you say when and kind of give us a little 

a [*344] history of your discussions with him in the early time 
before you started negotiating your plans? 

A. Very early in the process Representative McMahan and 
I agreed that we would keep an open dialogue and that we 
would try to come up with a plan to present to both sides th 

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

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

We talked about making sure that we kept our lines of 

communication open and we began the process of presenting 

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

  

  

consideration. 

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

Republicans had presented in the summer of 1996; do you 

recall where the 12th District was in that plan? 

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

Mecklenburg down across the south east to Robeson County? 

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

Representative McMahan early on about that? » 

A. I told him that was just completely unacceptable and 

that plan would never pass the Democratic Senate. 

Q. Was that early in the process? 

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

Q. Why? 

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

be members of the Senate that would think the plan was 

[#345] very much unfair on a partisan basis, because it would 

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

suspect that was the motivation behind it being presented -- 

  

  

  
  
 



  

188 

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

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

A. Yes it did. 

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

discuss with Representative McMahan? 

A. That's correct. 

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

leave it, when you said that was no go? 

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

were other members of the legislature who wanted to do that 

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

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

would have resulted in a strong Democratic leaning map, and 

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

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

that pretty early in the process. 

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

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

(Lunch recess taken.) 

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

Judge Thornburg: You may proceed. 

By Ms. Smiley: 

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

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

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

answer from you, but -- 

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

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

was data from election results in 1998 that went into the 

computer in addition to other demographic information. We 

  

  
   



  
189 

used that same information that was from the 1990 Census for 
redrawing these maps for 1997. There were election results, 
I think there was a Lieutenant Governors race, a Supreme Court 
or Superior Court Judges race and a U.S. Senate race that was 
from 1988 that was in the computer. 
Q. What information did you find most useful in looking 
at District 12? 

A. The election results were the predominate number that 
we looked at in all of the districts. We even had some 
supplemental election results that we used, but with this 
overriding issue concerning 6/6 partisan split, the election 
results were the most predominate numbers. In fact, when we 
were using the maps, that was generally the [*347] number that 
was up on the screen. 
Q. Do you recall which election you felt gave the best 
indication of Democratic\Republican? 
A. That's difficult to say. Probably that judge's race gave 
the best generic indication, but still that was older data, that ; 
was 1988 data. And although it was somewhat useful, it wasn't 
the primary election information that we used. 
Q. What was the primary? 
A. The primary information was election results that we 
received from an organization called the National Committee 
for an Effective Congress, which was an organization that I 
think was primarily funded by the National Democratic Party. 
It's primary function was to help elect Democratic members of 
congress across the nation and to specifically help with states 
that were doing congressional redistricting. 
Q. And how would you go about getting that information 
from them?  



  

190 

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

map makers with the committee in Washington and whenever 

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

map we would send it up electronically and they would send 

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

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

be. 

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

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

1996 and the state computer data base only had the 1988 

election results. 

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

NCEC data? 

A. There was a column that was an inclusive cumulative 

performance number that they came up with taking into 

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

performance number. So, for example, if you had a 55 percent 

Democratic performance, then that would be very good. Below 

50 would be of concern. 

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

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

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

12th Congressional Districts because that specifically was the 

district that was unconstitutional. The Court had real problems 

with the long narrow corridors without people, splitting of 

precincts, point contiguity, crossovers, double-crossovers. 

  
 



  

191 

We set out to eliminate all of those problems that they 

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

we wanted to make certain that race was not the predominate 

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

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

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

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

and began our redistricting process. And I would say that we 
probably made the most dramatic changes in both the 12th and 

the 1st Districts from the old map because of the problems that 
were cited by the Court in Shaw v Hunt. 

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

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

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

were in the previous congressional district. If you had started 

from square one with people who were already in a 

congressional district with members of congress that already 

represented areas. If you started at square one, I just don't thin 
we could have drawn a plan that would have passed must 
Even from census to census, most of the time there's a 

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

this was really no different than coming from another census, 

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

we wanted to address and feel we did address. 

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

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

The Witness: I think the 12th was probably as dramatic 
a change as any that we did. If you look at the map starting in 
Gastonia with a thin line all the way to Durham, we cut the area 
of that district almost in half -- excuse me, the length, and 

 



  

192 

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

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

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

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

dramatic because of the constitutional concerns that were raised 

by the Supreme Court. 

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

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

before completely out of it. ; 

Judge Boyle: What was your reason for not taking 

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

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

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

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

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

everyone happy from a political standpoint to take the 

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

because it made the 12th a much stronger Democratic district 

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

much more Republican, which made him happy. 

And in addition, there was a geographic symmetry to 

putting the Triad altogether and making sure that Greensboro, 

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

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

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

and we thought it made geographic sense to do that. 

By Ms. Smiley: 

    

   



193 

Q. If we may back up a little bit. We jumped a little ahead. 
Had you and RepresentativeMcMahan had any discussionsand 
come to any agreement as you were working on the Senate Plan 
about the 12th? 

A. We came to an agreement that it would go from 
Mecklenburg to a point in the Triad fairly early on, that that’ 
what we wanted to do. All the members of congress were @ 
with that. We thought it met the constitutional test because we 
were cutting off large areas that didn't look nice and we knew 
that that was going to be a Democratic leaning district. So we 
decided that the only issue was where we went. 

Did we go to Forsyth only, did we go to Guilford only, 
did we go to Forsyth and High Point, did we go to Forsyth, 
High Point and Greensboro? We came to the conclusion it 
made sense to connect them altogether and it made sense to 
keep the Triad together and it made sense from a partisan 
perspective that made the 12th more strongly Democratic and 
made the 6th more strongly Republican, making everyo 
happy. Getting back to my [*354] earlier statement, the rool 
that decide these elections, but we were trying to get a plan that 
passed and these members of the legislature are looking very 
carefully at elections and election results, and we were trying 
to get enough votes to get this plan passed. 
Q. Do you recall that at some point there may have only 
went to High Point? 

A. Yes. 

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

A. Yes. 

    
 



  

194 

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

explained some of the reasons why you made that decision to 

go to Greensboro? 

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

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

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

just only to go into High Point. 

Q. Where could you put those Greensboro Democrats if 

you don't go -- 

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

Judge Boyle: Is that where they are in the ‘98 Plan? 

The witness: Yes. 

[*356] When you made a decisionto go to Greensboro, did you 

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

Greensboro and get the blacks or get the black community? 

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

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

Q. And what, in fact, was put into the district, was it just 
black precincts; if you know? 

A. They were mostly Democratic leaning precincts, 

Democratic voting precincts. 

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

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

through and try to remember technically about all of these 

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

African Americans or not. It is obviously a substantial number 

      

  

   



195   
of African Americans that were in those strongly Democratic 

leaning districts. : 

Q. Were there a majority of white precincts from 

Greensboro that also went into the district? 

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

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

white precincts, but most are all Democratic leaning precincts @) 

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

leaning? 

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

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

has to happen to get votes. 

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

Greensboro, were you attempting in any way to achieve a 

particular racial percentage in the district? 

Mr. Everett: Objection, leading. 

Judge Thornburg: Overruled. 

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

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

fine with a lot of people who wanted to support Congressman 

Watt and wanted to make certain that there was incumbent 

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

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

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

that. 

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

Congressman Coble was satisfied with what happened to 

Greensboro? 

[*358] A. It is my understanding that he was happy with 

what we did.   
 



  

196 

Q. All right. 

A. Because it increased the Republican performance of his 

district. 

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

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

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

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

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

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

Court had not specifically overturned the First District, we 

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

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

do something about that to avoid a constitutional problem with 

the First District. 

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

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

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

had to deal with the constitutional issue of making sure that 

race was not the predominate factor and making sure it looked 

nice. 

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

the redistricting committee, concerning the Voting [*359] 

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

of discriminatory voting in northeastern North Carolina, that 

you had a large concentration of African Americans living in 

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

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

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

is a map that shows the African American concentrationin that 

area? 

  

   



197 

A. Yes, uh-huh. 

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

A. I think this illustrates that there are numerous counties 

in northeastern North Carolina that have a high percentage of 

African American population and that we simply use that core 

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

was a little unsure as to whether we could draw -. 

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

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

pretty clear that we could draw a nice compact district that 

made geographic sense, that put together communities of 

interest, that was a strongly leaning Democratic district, that 

was slightly majority/minority population. 

Q. I believe you have in your witness notebook an 

Exhibit 104, which was the plan that the Senate came out 

[*360] with? 

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

Senate. 

Q. And ultimately became the plan that the Senate passed) 

and negotiated with the House? 

A. Yes. 

Q. Okay. And is that District 1 more compact, possibly 

than the District 1 in the enacted plan? 

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

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

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

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

change parts of the First District in order to accommodate those 

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

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

    
 



  

198 

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

certainly does the job. 

Q. Is the District 1, in your Exhibit 104, is that the district 

that says to you that you can draw a compact African American 

district and that's why you need to? 

A. I would say yes. 

%* % % 

[¥362] Q. Briefly, to give the Court a flavor of some of the 

things you were dealing with. : 

A. District 2 obviously was a swing district, a hop up 

district. You just had the election between Congressman 

[*363] Etheridge and Congressman Thunderburk and the parts 

and nature of that district was of concern to legislators and the 

public and people were weighing in on that. 

Q. And you had a freshman Democratic congressman in 

that district? 

A. Yes, we did. And the same for the Third Congressional 

District. Congressman Jones represented that district and he 

was really the only Republican in the east and Representative 

McMahan, I think, although he never specifically told me what 

the conversations were going on, I could see from his actions 

that he was certainly trying to protect the only Republican 

congressman that was in the eastern part of the state and that 

came into the negotiations. 

%* % % 

  

  
   



199 

[*364] Q. Did various concerns with 2, 7 and 4 impact 

on 1, the shape in terms of where 1 -- 

A. Yes. Any time you dealt with a problem in those 
districts, since it is adjacent to 1, the First District, oftentimes 

you had to move some precincts or move a county. So you had 
to keep an eye on what was happening with 1 because it all 

works together, it's a chain reaction. th 

  
Q. So whatever you might have wanted to do with 1 or 3, 
you had to look at all the districts? 

A. Yes. Because when you move population out of or into 
a district, you have to go and make it up somewhere else 

because we're dealing with 552,000 some odd people that we 
had to draw and these districts had to keep it under a 1,000 
people difference. With the ultimate plan, you have to go right 
down to the person. So keeping population [*365] even was 
always a challenge when you had to go and try to fix one - 
problem, you sometimes ‘would create another problem in 
fixing a problem that you had. 

Q. In ultimately drawing District 1, what consideration was 

given to race? 

A. We felt that it was important to have a 
majority/minority district. Once we found out that you could 

draw one that met the test of Shaw v. Hunt. So from that 
standpoint, we did pay attention to race to have a 
majority/minority district. 

Q. Now, in the First District was there any particular 
percentage that you were looking at and that you were talking 
about? 

A. We wanted to have over -- at some point over 50 

percent of the population.   
 



  

200 

Q. Why was that? 

A. Just as I testified to earlier, there is a large concentration 

of African Americans who live in northeastern North Carolina. 

We felt that the Voting Rights Act would require if there was 

evidence that was presented to the committee about past 

patterns of discriminationand it's just the right thing to do, we 

could do it easily and draw a nice district, and we did it. 

[*368] A. District 1 is a largely agrarian rural district. It 

has a lot of medium sized towns. 1 think uniquely eastern 

North Carolina you have the 30 to 50,000 population towns 

with largely rural areas. A lot of those counties are largely 

poorer counties, they are very high up on our economic tiers of 

depressed counties, so I think that there's a great community of 

interest in northeastern North Carolina with those counties that 

are up there. 

[*369] A. I met with a group of largely African American 

constituents, Senator Jeannie Lucas, who represents Durham. 

I met with them and talked with them a great deal and they very 

much wanted to remain in the 12th. They very much wanted to 

remain in Congressman Watt's District 6 because they -- they 

were satisfied with his representation. It was a largely urban 

district with the same type of issues that urban Durham has. 

And we talked and looked at the Shaw v. Hunt case, and there 

was just no way the Court would have accepted a move to the 

    

  
   



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12th going all the way to Durham County. That just would not 

work. : 

Q. What about putting it in the First District? 

A. It was discussed, but there was just too much disparity 

of interest there. I don't think that Durham has a lot of interests 

that are the same as the agrarian rural northeastern counties and 

I don't think particularly that the group of people, senatd) 

Lucas, people that I was talking to, very much wanted to be in 

the First District. 

In addition, if you went down and got those precincts in 

Durham County that had been in Congressman Watt's old 

district, I think maybe you may have run into a constitutional 

problem with the First District in reaching out that far. And, 

also, if you did that, that created a partisan problem for the 

Fourth District. 

Q. What was that problem? 

[*370] A. That was a district that was leaning Democratic 

and if you went and took those Democratic votes out of the 

Fourth District then you had a problem with the Fourth pistril) 

no longer necessarily being Democratic leaning. So for all of 

those reasons, we didn't do that. 

  

[*372] Q. And can you remember right offhand what were 

the biggest fights that you had to deal with negotiating to your 

final plan? 

A, Probably the biggest fight was the partisan nature of the 

2nd and the 3rd. There were lots of other problems that arose, 

for example, in trying to shore up the 8th District. The idea 

 



  

202 

was to move east and there were concerns from Congressman 

Mclntyre that he didn't want the 8th District coming too far into 

Robeson County. The Lumbee Indians were concerned about 

being removed from the 7th and going back to the 8th or going 

into the 8th. And those were problems that we had during the 

process, but those eventually were ironed out. 

Q. Were there immediate problems with District 3 when 

you and Representative McMahan started negotiating? 

A. Yes, there were some problems with District 3. They 

didn't like the way we had drawn District 3. We didn't 

particularly like the way they had drawn District 3, but I think 

we ended up more toward their idea of what District 3 ought to 

be than our plan. : 

Q. Now, do you recall one of the easily decided the hottest 

issues when your plan first came out about District 3 had to do 

with the incumbent? 

A. Well, you mean Walter Jones, Congressman Walter 

Jones, District 3? The House made certain that he has to 

[*373] be in the 3rd District. His home was in actually the 

First Congressional District under the '92 Plan and he got 

elected to the 3rd District anyway, but had received some 

criticism because he didn't live in the district and that was an 

important point that Representative McMahan made to me, that 

they needed to make sure that Congressman Jones resided in 

the 3rd District. 

Judge Boyle: So that incursion that runs in north, west, 

southeast corridor up into Pitt, to Farmville all is the product of 

providing a residence for the incumbent? 

The Witness: That's how we got there, yes, because his 

home is somewhere there toward the end of the line. I don't 

  
 



  

  

  

      
    
      

  
      

      
     
         

     
        

     
    
    
    
    
    
        
    
      
     

203 

know specifically where his home is. I just know that was an 

issue and that was -- that's how we had to get up -- he lives in 

Farmville. 

%* % % 

[*374] Judge Boyle: So if you had devoted all of Pitt and ! 

of Craven -- not all of Craven, but the contiguous part of 

Craven to the First, you'd have cohesive, geographically 

cohesive district, but you wouldn't have the Congressmanin the 

district he represents? 

The Witness: That's right, because he lives in the 

Western part of Pitt County. 

Judge Boyle: Right. What was the purpose in taking 

the 3rd around to Lenoir and Wayne? 

The Witness: Well, it's hard to pinpoint any one 

particular reason as to why you did something, but I think one 

of my earlier plans had put Wayne in the Second District and, 

the House Republicans and Representative McMahan soit 

word -- this was from my talking with him, this is what I 

gleaned -- that since Congressman Jones represented Wayne in 

the old district, that he very much [*375] wanted to continue 

that representation of Wayne, I believe was one of the reasons 

why that was done. And, you know, it's -- well, go ahead. 

It's hard to remember all of the reasons, because there 

could have been other ancillary reasons why we did what we 

did because it's always a chain reaction. But that was one of 

the reasons I specifically recall because one of my earlier plans 

had put Wayne in the 2nd, and that was a real concern.



  

204 

* % % 

[*378] A. To convince people, we made a dramatic 

cosmetic change actually and real geographic change in the 

12th District and the 1st District. I talk about how we split less 

counties and how we had not split precincts except for two of 

them, that we had tied together communities of interest, that we 

had a plan that was fair, a partisan balance, a 6/6 split, a plan I 

thought the public would [#379] support and plan that people 

would have a better knowledge of what district they were in. 

Judge Boyle: Do all of those arguments hold true 

today? 

The Witness: For the ‘97 Plan? 

Judge Boyle: Yes, sir. 

The Witness: Absolutely. Yes. 

Judge Boyle: But the ‘98 Plan is not geographically 

compact and you now have the experience of one election 

under the ‘98 Plan and none ever run under the ‘97 Plan, so 

how do those arguments remain valid? 

The Witness: I guess that you can use a compass and 

a computer to make every district as geographically compact as 

it can be, but there were many other factors that we considered 

in this matter. For example if you are looking at the partisan 

nature of the 12th District, since that's what we mainly dealt 

with, I think that a Democrat has a much better chance under 

the ‘97 Plan than under the ‘98 Plan. 

Judge Boyle: Only as to the 12th District, you make 

less vulnerable the 5th and 6th and 8th, don't you? So you 

trade off three districts that conceivably may be "less in play” 

  
   



    

205 

under the '97 Plan and make one district the 12th, almost a sure 

thing? 

The Witness: Well, I don't think that under the [*380] 

way the voting results have been over the past few years that 

there would be any chance that a Democrat could win in the 6th 

and in the 5th and in the 10th, regardless of whether it's the ‘98 

or ‘97 Plan. - 

Judge Boyle: But there's marginally more chance in the 

‘98 Plan than in the ‘97 Plan? 

[*381] Q. Okay. There's been some discussion about 

whether or not in the ‘97 Plan that the 8th District could be 

made more Democratic or some Democrats from Mecklenburg 

County could go down there and use those Democrats in 

the 8th. Were there certain constraints about the 8th in the 

1997 Plan when you were working on it? 

A. Well, at the time we were working on this, the 8th wal) 

represented by the dean of the North Carolina delegation, 

Congressman Bill Hefner, who had been there a long time. He 

had a strong core of support in the legislature in his district. 

And one of the things -- one of the results of the plan, although 

I know that the district eventually was won by a Republican, 

this time by a slight margin, one of the accomplishments of the 

plan was to significantly improve the Democratic performance 

of the 8th District from the 1992 Plan to the 1997 Plan. 

Congressman Hefner had been elected because he was an 

incumbent and had been there a long time, but his district had 

increasingly become more Republican leaning and the best way 

 



  

206 

was to move the district eastward because that's where most of 

the Democratic voters were. That's what we did, although we 

didn't move it as far as I wanted to move it. We came into play 

with Congressman McIntyre, but [*382] Congressman Hefner 

was satisfied. He was moved out of Rowan and he wanted to 

keep all of Cabarrus because that was his home county and he 

did not want to go into Mecklenburg. And to get to the 

Democratic voters in Mecklenburg, you have to go through 

strong Republican suburban districts, so that was just never 

considered and was never an option. Now, there was a plan 

presented -- 

Judge Boyle: He had to want to get rid of Moore, too, 

didn't he? 

The Witness: Yes, we did that too. We moved to 

Cumberland. I lost my train of thought. 

Oh, Senator Cochrane had presented a plan similar to 

Representative Morgan's plan that you asked me about earlier, 

which went from Mecklenburg all the way to Robeson, but, and 

I talked with Senator Cochrane about that and other 

Republicans who were pushing the plan, I just told them from 

the partisan nature of the plan that it just would not. Democrats 

and the Senate would not do that and it was viewed as a 

partisan plan, is what it was viewed as and I think that's 

probably what it was. 

Q. Okay. Now, at some point in time, the plan passed and 

did you have occasion to go and visit with the Department of 

Justice? 

A. Yes. 

Q. Now, I don't believe you were here for Mr. Everett's 

[*383] opening speech, but he has alleged in his opening 

  

    

4 

    

  

  
  
 



          
  
  

207 

statement that the state was under the gun to the Department of 

Justice and their maximization policy and had to draw a black 

district. In terms of the Department of Justice, had you had any 

contacts with them when you were drawing the plan? 

A. No. 

Q. And what was your first contact with them? 

A. When 1 flew to Washington with members of ES 

Attorney General’s office and some other people to present the 

plan to them, that was the first contact I had with the Justice 

Department. 

Q. Was it the last? 

A. Yes. 

Q. And was it a memorable meeting? 

A. No. I mean, I think that they understood the ruling in 

Shaw v. Hunt and there was very little problem with 

preclearance. I didn't think that that would be a real concern. 

You never know what Justice is going to do, so we treated it 

seriously and went up and talked to them about what we ha 

done. And I had mentioned in my deposition numerous il 

racial fairness was important, and I think the plan was racially 

fair. That I never thought that that was a serious danger. We 

were much more concerned with making sure that the plan was 

[*384] constitutional under Shaw v. Hunt. 

Q. And that it was by partisan? 

A. Yes, that was the practical considerationof -- just let me 

step back a minute. I would very much love to draw these 

districts in a vaccuum, but you have to get majority votes. In 

the legislature, partisan considerations come into play, and 

where people live come into play, and incumbents come into 

play. And it is very difficult trying to practically and 

   

 



  

208 

realistically put together majority votes without taking these 

things under consideration, and that's what we did. I was given 

a job to do and I wanted to make sure I did it. 

Q. And you were attempting to do it in a lawful manner, I 

suppose? 

A. Yes. And I think we ended up with a plan and this was 

foremost in my mind to serve the public better and I think this 

plan does. I think this plan is a plan where people can, in 

general, know where they vote. It's a fair plan. 

* * % 

[*386] Q. So -- well, the question was: wasn't it necessary? 

The question I asked you, and you said, didn't you, I have said 

that we thought that that was the case that we had to do that. 

Isn't that the question you were asked? 

A. Yes. And we had to do it for a variety of reasons. I 

would have felt more uncomfortable about going for 

preclearance had we not had a majority/minority in the 

1st District. 

Q. You would have felt more uncomfortable? 

A. Yes, sir. 

Q. And you would have felt it wouldn't be approved? 

A. That was a potential. I don't know whether that would 

be the case, but yes, I thought that would be a potential. 

Q. Before you went up to the Department of Justice for this 

meeting, did you have any discussions with the Attorney 

General’s office about preclearance? 

A. Yes. 

      

  

  

 



    

  

  

  

209 

Q. And weren't you advised at that time that it was very 

unlikely to be precleared without a majority black district? 
A. I don't remember specifically whether that was told to 
me. I do remember Mr. Stein coming to the 
[*387] redistricting committee and other attorneys advocating 
for a majority/minority district and that there could be Votin 

Rights Act problems if we didn't do that, but you can do » 
fairly easily and draw geographically compact district. So it 
was the right thing to do any way. So for all of those reasons, 
we did it. 

Q. And it would have been wrong not to do it? 

A. I think it would have been wrong not to do it. 

* % % 

[*387] Q. Let me ask you this, though: Isn’t it true that 
African American voters, as members of the legislature are 
very important in the Democratic party political process? @ 
A. All voters and all kinds of people are important in 
[*388] the Democratic political process, yes. 

Q. Isn’t it also true approximately 95 percent or even 
higher of the African Americans of North Carolina who register 

to voter register as Democrats? 

A. That sounds like a figure that is correct. I don’t know 

the figure personally, but is sounds like a figure that is correct. 
Q. North Carolina has closed primaries for the Democratic 
primary? 

A. I have been — I believe you can vote in the Democratic 
party if you are unaffiliated. 

 



  

210 

Q. You can’t vote if you are a Republican or with the 
Reform party? 

A. That’s correct. 

Q. Under those circumstances, isn’t it true that African 

Americans are a very strong political influence within the 

Democratic party? ; 

A. I would say that, yes; yes, that’s true. 

Q. And wasn’t it your belief, from what you had heard and 

seen as a representative and otherwise, that the African 

American political faction, as it were in North Carolina, is very 

cohesive, that African Americans are not only Democratic but 

(unintelligible) in the political process? 

A. I wouldn’t want to go as far as to say that, but much 

[*389] less so today than it used to be, I would think. 

Q. All right. Wasn't it true, in your view, that African 

Americans were very anxious to have as many African 

American members in Congress as possible? 

A. There were many African American, yes, who thought 

it was important to have African American members of 

Congress representing North Carolina. Yes. 

Q. And many of them thought it was important to have two 

majority black districts back in 1992, correct? 

A. Yes. 

Q. And didn’t many of them think that it was important to 

have as heavy a minority population, African American 

population in the constituted 12th District as could possibly be 

put there? 

A. I would say that there would be many African 

Americans who would advocate that, yes. 

  

 



  

21]   
* % % 

[*395] Q. Before that in the 1991 Plan, District 12 had 
meandered off to the east somewhere, or do you recall? 
A. I really don’t recall where 12 was in that first plan. 
Q. With respect to ‘92, ‘97', ‘98, would you say "“@ 
Mecklenburg had been the hub of the 12th District? 
A. Hub is probably a good word, yes. How’s anchor? Hub 
or anchor. 

Q. Isn’t that the word you used in your deposition? 
A. I did. That was a good word. 
[*396] Q. With respect to the 1992 Plan, were you aware 
that Mecklenburg company, in particular Charlotte, were split 
in such a way that most of the black precincts were put in the 
12th and most of the white in the surrounding district the 9th? 
A. I know there was a lot of attempt to make certain that 
there was a certain African American percentage in the 
12th District during that period of time, so it would make a 
that that would be what would have happened. 

[*403] A. I don't think anything is assured. Congressman 
Watt was an incumbent. We paid attention to all incumbents 
and, yes, we looked at race. As I testified before, it was 
important racial fairness, but we did not specifically reach any 
type of threshold in race in the 12th District. 
Q. You say you didn't try to reach any threshold in race. 
As far as the ‘97 Plan, the change for the ‘92 Plan, didn't you   
 



  

212 

    

basically try to achieve as close to 50 percent as you could get 

without getting there? 

A. No, we did not have any type of goal. We first looked 

at trying to cure the constitutional defects and made sure that it 

was still a strongly leaning Democratic district. I think the fact 

that it has a relatively high number of African Americans is a 

fine thing. It was a benefit. It was one of the considerations 

particularly there were as you've asked me before, there were 

people who were pushing for a higher percentage, but there was 

also the consideration of making sure that the Sixth 

[*404] District was more Republican. That was something that 

Congressman Coble wanted, so all of those factors came into 

play. 

Q. Nevertheless, at the end of the day in 1997, all of the 

predominately black precincts in Mecklenburg had been in the 

1992 Plan were retained in the 1997 Plan; isn't that true? 

A. Probably most all of them were, but with the addition 

of a whole lot more. 

Q. And that was because of the deletion of Durham and of 

this sliver over in Gaston? 

A. Because of what the Court told us to do, we had to 

make sure that this plan looked a whole lot nicer than it did and 

race didn't predominate. 

[*406] A. We cut off Gaston, we cut off Alamance, we cut 

off Orange, cut off Durham and took all of those out of the 12 

and kept the core, the Triad to Mecklenburg core fattened it, 

  

  

 



213      

  

made it look nicer. Took in a lot more Democratic leaning 

voters, systems as we could and made it a nicer looking district. 

Q. In you take in African Americans, add them, you are 

taking in always also Democratic leaning voters 95 percent of 

the time; isn't that true? 

A. Yes. African Americans generally are strongly 

Democratic leaning voters, yes. * 

® k*% 

[*408] Q. Now, with respect to the map of the 

12th District, I just want to be sure on this. Looking at this 

map, would you be -- and the map is Joint Exhibit 106. Would 

you be able to identify for me what might be referred to as the 

"Greensboro black community"? 

A. Only by the fact that you have on this map across here 

precincts that say 40 to 100 percent black. Because of this 

map, I can point it to you and say, there, but I could not tell you 

if you gave me a map without that information on it where th 

would be. 

[*409] Q. You would think that area identified by the cross 

red or the checker red marks on Exhibit 106, those with 40 to 

100 percent concentration would be what's referred to as the 

Greensboro black community? 

A. I don't have a concept of what the Greensboro black 

community ask. If you are taking into account those precincts 

that have only 40 percent African American, then you have 

substantially less than the majority of the African American. 

This is the first time I have seen this map. I wouldn't be able to 

say where the Greensboro black community would be. 

  

  
 



  

214 

Q. By the same token, were the High Point black 

community or Winston-Salem or any of the other communities 

there? 

A. Right. 

[*411] Q. Then, looking at the page referring to e-mail for 

February 10, 1997, do you see who is addressed from and to 

whom? 

A. It is from Gerry Cohen to me with copies to Leslie 

Winner. 

Judge Vorhees: Copy to whom, please? 

The witness: Leslie Winner. | 

Q. Now, with respect to Gerry Cohen, did you testify 

previously he was the person who was primarily doing the 

technical work, the handiwork, as it were, in getting the plans 

together? 

Yes. 

Had he been assigned to you? 

Yes. 

And Leslie Winner, she was a Senator at the time? 

Yes. 

And no longer is a senator? 

That’s correct. 

Do you know whether or not at an earlier time in 

connection with the 1991 and ‘92 Plans, enacted by the General 

Assembly, whether Leslie Winner had been involved? 

C
P
r
O
o
P
R
O
P
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215 

A. She was an attorney involved in the process. I’m not 

quite sure whom she represented, but she was an attorney, 

maybe an advisor to the House. 

[*412] Q. She had been representing the General 

Assembly? 

A. I can’t say for certain, but she was an attorney involved 

in redistricting and she had a lot of knowledge abo 
redistricting, yes. 

* % % 

[*412] Q. Senator, I was asking you about this memo, or 

e-mail rather, to you from Gerry Cohen. And I believe that’s 
Exhibit 58 in the deposition exhibits. Senator, it’s a fairly short 
e-mail or memo. I was asking about the people involved. I 

was asking you about Senator Leslie Winner. Is she the same 

Leslie Winner who's an attorney in Charlotte and now the 

attorney for the Charlotte Mecklenburg School District? 
A. Yes. 

Q. And she had experience in the redistricting process? 

A. And Gerry Cohen had been the person who had drawn 
the 1991, 1992 Plan as well? 

A. I don’t know that personally, but that’s something I 

presume from conversations. I think that’s correct. 

Q. And from his experience in drawing those plans and 

otherwise, you discovered that he was quite familiar with 
[#413] the North Carolina counties, precincts, districts and so 
forth? 

A. That is correct. 

 



  

216 

Q. Now, there is the last sentence of this e-mail states: I have 

moved Greensboro black community into the 12th and now 

need to take about 60,000 out of the 12th. 

Do you know what he was referring to when he said he 

had moved the Greensboro black community? 

A. I do not specifically remember even getting this e-mail. 

And that is not a specific instruction that I would have given to 

him, but I am presuming that he is talking about moving the 

part of Greensboro that we had already discussed previously. 

He and I at some point had discussed moving the 

Guilford County area into the 12th and for all of the reasons 

that I have talked to you about before, making it a stronger 

Democratic district, connecting the Triad. It made everybody 

happy. 
- Obviously, Congressman Coble's district was better, 

Congressman Watt certainly wanted more of his constituents 

than he had before and he was certainly happy getting more of 

those constituents and happy getting a higher percentage of 

African Americans in his district. And for all of those reasons 

we decided to go into Guilford County. But I am presuming 

that this is Mr. Cohen's [*414] descriptive term for that part of 

Guilford County that we eventually moved into the 

12th District. 

Q. Now, that's the part that we have been -- we looked at 

earlier the map that was predominately black? 

Ms. Smiley: Objection. Form of the question, unless 

there's a foundation that he knows. 

Judge Thornburg: Overruled. 

A. You know, I'm a little embarrassed sitting here. I'm not 

quite sure whether it's majority African American or not, but I 

    

  

   



  

  
  

  

217 

know there's a substantial number of African Americans in that 

part of Guilford County that we moved to. 

[*422] Q. What, with respect to the cause of balance, did 

you hear your legislators talking about partisan balance, or will) 

that a concern? 

A. Most legislators would want a plan drawn that would be 

partisan in their party's favor. Partisan balance came about 

because we had to make sure it passed both chambers, and that 

became a driving force in the process. 

Q. So as far as you could tell, there was no strong feeling 

when the session began on the part of the legislator individual 

legislators about maintaining partisan balance? 

A. Probably not at that time because they were not thinking 

about the practical aspects of getting a plan passed. I certainly 

was and Representative McMahan was. And as the process 

went forward into 1997, that became a very important issue iy 

my going sure, that we got the plan passed. And it was an issue 

I think that was good for the public as well. 

Q. So in the initial point when they are coming together to 

begin the session, the legislators would have been more 

concerned about keeping counties together, not splitting them 

in redistricting and having minor representation than 

[*423] they would have been about partisan balance? 

Ms. Smiley: Object to the form of the question. 

Judge Thornburg: Overruled. 

A. I think that's very difficult to say. At that point going 

into the session, partisan balance hadn't become the important