Jurisdictional Statement and Appendix; Joint Appendix Volume I of II
Public Court Documents
May 19, 2000
627 pages
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Case Files, Cromartie Hardbacks. Jurisdictional Statement and Appendix; Joint Appendix Volume I of II, 2000. be7d9c20-d90e-f011-9989-002248226c06. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/4045dc31-577f-4633-ab79-f1365dd274cb/jurisdictional-statement-and-appendix-joint-appendix-volume-i-of-ii. Accessed November 19, 2025.
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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new redistricting plan based on an outdated census that will be
superseded by the imminent 2000 Federal Census?
ii
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iil
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.
v
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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
viii
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p
r
i
m
any
A
B
A
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
o
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.
b
n
r
b
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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I
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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
[This page intentionally left blank.]
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
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~~
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
S
O
U
e
SR
eI
E
e
a
e
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?
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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.
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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
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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
228a
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S
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ystem
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lic
8
Ss
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October 18, 1999
Syste t
N.C. General Assembly
egislative Service
Redistricting
L
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
232a
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House 97 Congressional Plan A.1 —
District 1
November 4, 1999
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IRL ——
LEGEND
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234a
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I=
House 97 Congressional Plan A.1 —
November 2, 1999 District 12
[ ] District 6
DANNNSST District 8
236a
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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
A | = 2 = K = ona IS page Intent [Th
97 Congress Cooper 2.0 —
District 12 November 4, 1999
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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
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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
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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
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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
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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
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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
L
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
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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
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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.
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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
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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,
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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.
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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
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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
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»
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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| {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.
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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
S
a
i
d
201
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?
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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