Reply of LDF to Resolution of NAACP Convention Re: Use of "NAACP" by LDF in Name
Press Release
June 25, 1979
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Case Files, Cromartie Hardbacks. Joint Appendix with Certificate of Service, 1998. 1b7e6926-d90e-f011-9989-7c1e5267c7b6. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/50f5e4da-706f-4d9a-8ab5-bcd8a9c76e9a/joint-appendix-with-certificate-of-service. Accessed July 01, 2025.
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In the
Supreme Court of the United States
October Term, 1998
JAMES B. HUNT, JR., et al.,
Appellants,
and
ALFRED SMALLWOOD, et al.,
Intervenor-appellants,
V.
MARTIN CROMARTIE, et al.,
Appellees.
On Appeal from the United States District Court
Eastern District of North Carolina
JOINT APPENDIX
MICHAEL F. EASLEY
NC Attorney General
Edwin M. Speas, Jr.*
Tiare B. Smiley
Melissa L. Saunders
NC Department of Justice
Post Office Box 629
Raleigh, NC 27602-0629
Telephone: (919) 716-6900
Counsel for Appellants
Adam Stein
Ferguson Stein Wallas
Adkins Gresham & Sumter
312 W. Franklin Street
Chapel Hill, NC 27514
Telephone: (919) 933-5300
Robinson O. Everett*
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 810
Concord, NC 28026-0810
Telephone: (704) 782-1173
Counsel for Appellees
Todd Cox*
NAACP Legal Defense &
Educational Fund, Inc.
1444 | Street NW
Washington, DC 20005
Telephone: (202) 682-1300
Counsel for Intervenor-appellants
*Counsel of Record
Appeal docketed July 16, 1998
Probable Jurisdiction noted September 29, 1998
TABLE OF CONTENTS
Chronological Listing of Relevant Docket Entries . ...... 1
Amended Complaint and Motion
for Preliminary imunctions. ta 02. i von. oN as 7
Defendants” Answer to Amended Complaint .......... 25
Plaintiffs” Motion for Preliminary Injunction .......... 35
Plaintiffs” Motion for Summary Judgment ............ |
Affidavit of Lee Mortimer (without attachments
ordablesY (CD 34)" on. 5a ur) ih dan in Sh i 47
Affidavitof John Weatherly (CD 34) .............05 71
Affidavit of J. H. Froelich. Jr. (CD34) .. -. 0.0.00 0, 77
Affidavitof RO. Everett (CD 34) 0. ous aircon vos 81
Defendants” Cross-Motion for Summary Judgment . .. .. 85
Selected Portions and Attachments from the
Section 5 Submission as filed with the court
with the Affidavit of Gary O. Bartlett (CD 46):
» Section 97C-27N of the Section 5 Submission
Commentary - Effect of Change on
Minority Voters... ade situs J.S. App.63a*
il
9 97C-27R - Other Material Concerning
the Purpose of the Plan... in ify andi
Attachment 97C-27A-2, 97 House/Senate Plan A
Statistical Printouts, pp. 25-28:
i. District Summary - Total Populations
il. District Summary - Voting Age Populations
ii. District Summary - Registration
iv. Dastrict Summary -Flections .... .........
Attachment 97C-27B-1, 1992 Congressional
Base Plan #10 - Explanation/Statistics:
1. District Summary - Total Populations
il. District Summary - Voting Age Populations
iii. District Summary - Registration .... ........
Attachment 97C-28F-4F(1), Statement of
Representative Edwin McMahan, House
Congressional Redistricting Committee,
Discussion House Floor March 26, 1997.
Attachment 97C-28F-4F(2), Statement of
Senator Roy Cooper, Verbatim Transcript
of Floor Debate on HB 586 (Committee
Substitute) Congressional Redistricting.
Senate Chamber Thursday, March 27. 1997.
PD 1-8 oan a a a an i
Affidavit of Senator Roy A. Cooper, III
(without attachments) (CD47) ........... J.S. App. 69a*
111
Affidavit of Representative W. Edwin McMahan
(without attachment) (CD47) ............ J.S. App. 79a*
Affidavit of David W. Peterson, PhD
(without attachment} (CD47) =... .. J. J.S. App. 85a*
Affidavit of Dr. Alfred W. Stuart
(without attachments) (CD 47) .......... J.S. App. 101a*
“An Evaluation of North Carolina’s 1998
Congressional Districts” by Professor
Gerald R. Webster (without maps) (CD 47) J.S. App. 107a*
Defendants’ Motion to Strike Affidavits filed
in Support of Plaintiffs” Motion for Summary
Judgment and Memorandum in Support of Motion . . . . . 137
Affidavit of Robinson O. Everett (without
gitachment)(CD 36)... oi. ye Ea 157
Declaration for Dr. Ronald E. Weber (without
attachments) (CD37) «io caadhni rl Sodagsaia 8 159
Affidavit of Thomas A. Darling (without
attachments (CD 88). 2. J8. BL Lhe fe ae 221
Affidavit of Carmen Circincione (without
attachments) (CDS) ssa vv a a an 231
Affidavit of Timothy G. O'Rourke (without
attachmenisy(CDB0Y . . .. co... a Asa a 241
1v
Affidavit of Martin B. McGee (with all attachments
except maps (Exhibits M, N, O & P which were
lodged with the Court on August 27, 1998 as
Maps L2.3&4NACD BLY ..... 0st. uti 253
Plaintiffs” Conditional Motion to Strike the
Affidavits of Roy Cooper, III and Edwin McMahan . ... 291
-
Amended Answer of Defendant Intervenors .......... 293
Order and Permanent Injunction of United States
District Court for the Eastern District of
North Carolina, April 3,1998 ........... J. S. App. 45a*
Judgment of United States District Court for
the Eastern District of North Carolina,
Aprilif, 1998. i. iii. sae se A J.S. App. 49a*
Notice of Appeal, April 6,1998 ........... J.S. App. 47a*
Amended Notice of Appeal, April 8, 1998 .. J.S. App. S1a*
Opinions of the U.S. District Court for the
Eastern District of North Carolina,
April 14,1998... .. ... os. 000. hn J.S. App. la & 25a*
Order of United States District Court for the
Eastern District of North Carolina,
April 21,1998 sae J.S. App. 55a*
Order of the United States District Court for the
Eastern District of North Carolina,
June 22 1998 . ce lh ra eee J.S. App. 175a*
V
Session Law 1997-11 and Session Law 1998-2
were lodged with the Court on August 26, 1998 ....... n/a
CD = Civil Docket Number
* Designates that the document was previously provided in
the appendix to the Jurisdictional Statement, docketed on July
16, 1998. The page reference to the Jurisdictional Statement
appendix is provided.
Vi
[This page intentionally left blank]
CHRONOLOGICAL LIST OF
RELEVANT DOCKET ENTRIES
July 3. 1996 - Complaint filed
July 12.1996 - Motion with memorandum by Smallwood.
Ward. Moore. Waddle and Hodges to intervene as defendants
August 27, 1996 - Plaintiffs’ motion to stay action
September 4, 1996 - Order granting motion to stay
April 8. 1997 - Plaintiffs’ motion to extend stay
April 18. 1997 - Order granting motion to extend stay
June 2, 1997 - Plaintiffs’ unopposed motion to extend stay
June 11, 1997 - Order granting motion to extend stay
August 11, 1997 - Plaintiffs’ unopposed motion for further
extension of stay
August 19, 1997 - Order granting motion for further
extension of stay
October 10, 1997 - Plaintiffs” motion to dissolve stay
October 17, 1997 - Order granting motion to dissolve stay
October 17. 1997 - Amended complaint filed
October 17, 1997 - Notice of voluntary dismissal by
plaintiff Weeks
November 25, 1997 - Defendants file answer to amended
complaint
November 26, 1997 - Motion with memorandum by
Smallwood, Moore, Hodges, Davis, Valder, Offerman. Newell.
Lambeth and Simkins to intervene as defendants
December 22. 1997 - Plaintiffs’ motion to amend
complaint
January 23. 1998 - Designation of Three-Judge Court
January 30, 1998 - Plaintiffs’ motion for preliminary
injunction
9
RELEVANT DOCKET ENTRIES, CONTINUED. ..
February 5. 1998 - Plaintifts’ motion for summary
judgment with memorandum and affidavits of Mortimer.
Weatherley. Froelich and Everett
February 10, 1998 - Defendants motion to strike
preliminary injunction motion for lack of supporting
memorandum
February 17. 1998 - Plaintiffs’ response to motion to strike
February 18. 1998 - Defendants’ reply to plaintiffs
response to motion to strike
February 20, 1998 - Notice of motion hearing for March
16. 1998 re: motion for preliminary injunction
February 23, 1998 - Plaintiffs’ memorandum in support of
motion for preliminary injunction
February 25, 1998 - Defendants’ motion to consolidate
preliminary injunction hearing with hearing on cross-motions
for summary judgment
February 27, 1998 - Clerk notation that counsel had been
called and told that it was anticipated that the March 11. 1998
deadline would be enforced unless otherwise notified by the
court
March 2. 1998 - Movant - defendant intervenors’ response
to motion for summary judgment and memorandum
March 2. 1998 - Defendants’ motion for summary
judgment and memorandum
March 2, 1998 - Defendants’ response to motion for
summary judgment
(F
P)
RELEVANT DOCKET ENTRIES, CONTINUED. ..
March 2. 1998 - Defendants’ affidavit of Bartlett in
support of motion for summary judgment and in response to
motion for summary judgment
March 2. 1998 - Defendants’ affidavits of Cooper,
McMahan. Goldfield. Peterson. Stuart and Webster in support
of motion for summary judgment
March 2, 1998 - Defendants’ motion with memorandum in
support to strike affidavits of Everett. Froelich, Williams,
Weatherley and Mortimer
March 5, 1998 - Plaintiffs’ motion to continue preliminary
injunction hearing and time for filing materials
March 10, 1998 - Clerk notation that counsel had been
called and told that the court could not come together on
Monday, but the judges would reestablish a hearing date and
plaintiffs have until March 23. 1998 to file briefs.
March 19, 1998 - Order granting motion to continue
preliminary injunction and time for filing
March 20, 1998 - Defendants’ response to motion for
preliminary injunction with supporting affidavits of Jones,
Myrick. Taylor. Clayton. Etheridge. Price and Bartlett
March 23. 1998 - Movant defendant-intervenors’ response
to motion for preliminary injunction
March 23. 1998 - Plaintiffs’ response to motion to strike
affidavits of Everett. Froelich. Williams, Weatherley and
Mortimer
March 23. 1998 - Plaintiffs’ response to motion for
summary judgment
RELEVANT DOCKET ENTRIES, CONTINUED. ..
March 23, 1998 - Plaintiffs’ supplemental memorandum
in support of motion for summary judgment and motion for
preliminary injunction
March 23, 1998 - 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
March 23, 1998 - Plaintiffs’ motion to strike affidavits of
Cooper and McMahan
March 23, 1998 - Plaintiffs’ motion for judicial notice of
computer data
March 27, 1998 - Defendants’ response to plaintiffs’
motion for judicial notice of computer data
March 31, 1998 - Hearing: motions for summary
judgment and motion for preliminary injunction
March 31, 1998 - Notice of appearance by Cox, Hodgkiss
and Stein for movant defendant-intervenors
March 31, 1998 - Subsequently decided authority pursuant
to LR 4.07 by defendants
April 3, 1998 - Order granting plaintiffs’ motion for
summary judgmentas to twelfth congressionaldistrict. granting
preliminary injunction and granting permanent injunction
April 6, 1998 - Judgment for plaintiffs
April 6, 1998 - Defendants” motion for stay of April 3
court order
April 6, 1998 - Order denying stay
April 6, 1998 - Defendants” notice of appeal filed
April 8, 1998 - Defendants” amended notice of appeal filed
5
RELEVANT DOCKET ENTRIES, CONTINUED. ..
April 14.1998 - Findings of fact and conclusions of law re:
April 5. 1998 order filed and order denying plaintiffs’ motion
for summary judgment as to first congressional district
April 14, 1998 - Judgment re: first congressional district
April 17. 1998 - Defendants’ motion with supporting
memorandum for reconsideration of order denying stay and to
shorten time for plaintiffs’ response
April 20, 1998 - Plaintiffs’ response to defendants’ motion
for reconsiderationof order denying stay and motion to shorten
time for plaintiffs’ response
April 21, 1998 - Order denying motion for reconsideration
of order denying stay, mooting motion to shorten time for
plaintitts to respond
April 21, 1998 - Order on scheduling
May 22, 1998 - Submission of 1998 congressional
redistricting plan filed by defendants
May 26. 1998 - Renewed motion with memorandum by
Smallwood, Moore, Hodges, Davis, Valder, Offerman. Newell.
[Lambeth and Simkins to intervene as defendants
May 27, 1998 - Defendants’ response to motion to
intervene as defendants
May 27, 1998 - Plaintiffs’ response in opposition to
revised 1998 redistricting plan
June 1. 1998 - Defendants’ response in support of 1998
redistricting submission and in opposition to plaintiffs’
objections
RELEVANT DOCKET ENTRIES, CONTINUED. ..
June 1. 1998 - Defendants’ affidavits of Cooper.
McMahan. Cohen and Bartlett (3rd) in support of memorandum
in support of 1998 redistricting plan
June 22. 1998 - Order granting motion to intervene as
defendants (Smallwood, Moore, Hodges, Davis, Valder.
Offerman. Newell. Lambeth and Simkins)
June 22. 1998 - Order directing that 1998 congressional
elections proceed as scheduled in court’s April 21, 1998 order
and the matter to proceed with discovery and trial with parties
ordered to submit discovery schedules by June 30
July 17, 1998 - Plaintiffs’ notice of appeal filed
7
AMENDED COMPLAINT AND MOTION FOR PRELIMINARY
INJUNCTION
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
RALEIGH DIVISION
Civil Action No. 4.96-CV-1 04
MARTIN CROMARTIE, THOMAS
CHANDLER MUSE, R.O. EVERETT,
J.H. FROELICH, JAMES RONALD
LINVILLE, and SUSAN HARDAWAY,
Plaintiffs,
VS.
)
)
)
)
)
)
)
)
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 State of )
North Carolina, and LARRY LEAKE. S. )
KATHERINE BURNETTE, FAIGER )
BLACKWELL, DOROTHY PRESSER and )
JUNE YOUNGBLOOD in their capacity as the )
North Carolina Board of Elections, )
Defendants. )
AMENDED COMPLAINT AND MOTION FOR
PRELIMINARY AND PERMANENT INJUNCTION
AMENDED COMPLAINT, CONTINUED. ..
Pursuant to Federal Rule 15(a) of Civil Procedure.
Plaintiffs file this Amended Complaint and. complaining of the
Defendants, allege:
PRELIMINARY STATEMENT
This action challenges the constitutionality of the
racially gerrymandered congressional redistricting plan which
was enacted by the North Carolina General Assembly in late
March 1997. The Plaintiffs’ claim is grounded on the injury to
Plaintiffs which will result if elections are conducted under this
recently enacted plan because it is racially motivated and is
predicated on the unconstitutional race-based plan which
preceded it. This plan, a fruit of the poisonous tree planted in
January 1992 by its predecessor, injures and impairs the
important rights of plaintiffs as citizens and registered voters of
the State of North Carolina; and it threatens to continue to
injure and impair those rights into the next century and
millennium. The rights infringed by the acts of the State
Defendants are those granted expressly or implicitly by Article
1. Sections 2 and 4 of the United States Constitutionand by the
[Fourteenth and Fifteenth Amendments.
Plaintiffs seek a declaration that the redistricting plan
enacted by the General Assembly in March 1997 is
unconstitutional; that the Defendants be enjoined from using
that plan in the 1998 elections or any subsequent congressional
clections: that no one be allowed to serve in Congress if elected
AMENDED COMPLAINT, CONTINUED. ..
under the March 1997 plan; that this Court direct the General
Assembly to draw promptly a plan that is not tainted by the
current plan and that is prepared without regard to race, party
or incumbency. and that. if the Legislature fails to prepare
promptly and enact such a plan and obtain preclearance for it,
this Court do so.
THE PARTIES
l. Plaintiffs Martin Cromartie and Thomas
Chandler Muse are citizens and residents of Edgecombe
County. North Carolina; Plaintiff R.O. Everett is a citizen and
resident of Rowan County, North Carolina, Plaintiff J.H.
Froelich. Jr. 1s a citizen and resident of Guilford County. North
Carolina: Plaintiff James Ronald Linville is a citizen and
resident of Forsyth County, North Carolina; and Plaintiff Susan
Hardaway is a citizen and resident of Mecklenburg County.
North Carolina. All the Plaintiffs are registered voters.
), Defendant James Hunt is the Governor in and
for the State of North Carolina; and. in such capacity, he is the
Chiet Executive Officer of the State charged with the duty of
enforcing compliance with State legislation enacted under
Article II. Sec. 5(4) of the Constitution of North Carolina.
Moreover. it is the Governor's duty to issue a commission to a
person elected to the United States House of Representatives
upon that person's production to the Governor of a certificate
10
AMENDED COMPLAINT, CONTINUED. ..
of his or her election from the Secretary of State, pursuant to
N.C.G.S. Section 163-194. He is sued in his official capacity.
3, Defendant Dennis Wicker 1s Lieutenant
Governor of North Carolina. and. as part of his official duties,
he presides over the North Carolina Senate and certifies certain
actions of the Senate. He is sued in his official capacity.
4. Defendant Harold Brubaker is the Speaker of the
North Carolina House of Representatives and, 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.
3. Defendant Elaine Marshall. 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 result to her. pursuant to N.C.G.S. Section 163-
193, and with recording the results of elections for the United
States House of Representatives. pursuant to N.C.G.S. Section
163-195. She is sued in her official capacity.
6. The North Carolina State Board of Elections is
an official agency of the State of North Carolina, which has
been established to supervise and conduct elections in the State
of North Carolina, including elections for the United States
House of Representatives. Defendant Larry Leake is the
chairman and S. Katherine Burnette. Faiger Blackwell, Dorothy
11
AMENDED COMPLAINT, CONTINUED. ..
Presser and June Youngblood are members of the North
Carolina State Board of Elections. All of these Defendants are
charged with exercising the powers and duties of the State
Board of Elections pursuant to N.C.G.S. Section 163-22.
These Defendants are all sued in their official capacity.
JURISDICTION AND VENUE
7. This action arises under Article I. Sections 2 and
4 and the Fourteenth and Fifteenth Amendments of the
Constitution of the United States and under 42 U.S.C. Sections
1983 and 1988, and 2 U.S.C. Section 2a.
8. This Court has original jurisdictionof this action
pursuant to 28 U.S.C. Sections 1331. 1343(a)(3) and (4), and
2284.
9. Venue exists under 28 U.S.C. Section 1391(b)
because the enactment of the unconstitutional race-based
redistricting plan and the acts and events which are the subject
of this action occurred principally in Raleigh. North Carolina
in the Eastern District of North Carolina.
THREE-JUDGE DISTRICT COURT
10. Convocation of a three-judge district court is
required by 28 U.S.C. Section 2284 because this action
12
AMENDED COMPLAINT, CONTINUED. ..
challenges the constitutionality of the statewide apportionment
of congressional districts for the State of North Carolina.
HISTORY OF THE CASE
1h Since it became a State when the United States
Constitution was ratified, North Carolina has elected its
Representatives to Congress from single-membercongressional
districts and the plans for these districts have been amended by
the North Carolina General Assembly from time to time to
reflect the results of the decennial censuses and the number of
Representatives allocated to North Carolina.
12. As a result of the 1980 census. North Carolina
was entitled to eleven Representatives in the Congress: and
those Representatives were elected under a plan adopted by the
General Assembly which provided for eleven districts.
13. As a result of the 1990 census. North Carolina
became entitled to twelve Representativesin the Congress; and
the General Assembly undertook to prepare a redistricting plan
that would contain twelve districts and that would receive
preclearance of the plan from the Department of Justice, which.
under Section 5 of the Voting Rights Act. 42 U.S.C. Section
1973(b). had preclearance authority over forty North Carolina
counties.
AMENDED COMPLAINT, CONTINUED. ..
14. On July 9, 1991, the General Assembly enacted
a redistricting plan which was predominantly motivated by race
and contained a majority black district that was not compact or
contiguous and did not conform to traditional redistricting
principles.
15. Even though the 1991 plan enacted by the
General Assembly was a racial gerrymander that sought to
comply with unconstitutional requirements imposed by the
Department of Justice under its preclearance authority. on
December 18. 1991, the Civil Rights Division of the
Department of Justice denied preclearance of that plan under
Section 3 of the Voting Rights Act.
16. In January 1992, the General Assembly enacted
a second redistricting plan, which also was predominately
motivated by race. This plan had two bizarre majority-black
districts. the First and the Twelfth. Neither of these districts
was geographically compact or contiguous and the boundaries
of cach district defied traditional principles of redistricting.
17. Thereafter in March 1992. a lawsuit was
commenced by five Durham voters against the Governor and
various other State Defendants, in which those Plaintiffs
attacked the constitutionality of the redistricting plan and
especially the First and Twelfth Districts.
14
AMENDED COMPLAINT, CONTINUED. ..
18. [n that litigation, the Supreme Court held in the
first appeal by those Plaintiffs that under the Equal Protection
Clause of the Fourteenth Amendment they had stated a
constitutional claim against the State Defendants in that action.
See Shaw v. Reno. 509 U.S. 630 (1993).
19. On remand. various persons intervened in that
case on the side of those Plaintiffs or on the side of the State
Defendants. and a trial took place before a three-judge district
court. In that trial the district court held unanimously that the
redistricting plan was predominantly racially motivated, but
ruled by divided vote that the plan survived the test of strict
scrutiny. The Plaintiffs in that case appealed successfully to
the Supreme Court, which held on June 13, 1996 that the
Twelfth District was race-based and did not meet the test of
strict scrutiny and therefore was an unconstitutional racial
gerrymander. See Shaw v. Hunt, 116 S. Ct. 1894 (1996). The
Supreme Court also held that neither the Plaintiffs nor the
Plaintiff-intervenors in that action had standing to raise the
issue of unconstitutionality of the First District, because none
was a registered voter in that district. /bid.
20. On July 3, 1996, two of the present Plaintiffs --
together with a third registered voter from Edgecombe County
-- commenced the present action. in which they complained
that the First District as it existed under the January 1992 plan
was an unconstitutional racial gerrymander violating the Equal
Protection Clause of the Fourteenth Amendment.
15
AMENDED COMPLAINT, CONTINUED. ..
21, Subsequent proceedings were stayed in this
action in order to await the outcome of any further proceedings
in the Shaw litigation and thereafter to await possible
legislative action by the General Assembly to replace with a
new plan the unconstitutional racially gerrymandered
redistricting plan enacted in January 1992.
22. Late in March 1997, the General Assembly
enacted 97 House/Senate Plan A contained in Section 2 of
Chapter 11 of the North Carolina General Assembly's 1997
Session Laws. a new plan which in various respects revised the
First and Twelfth Districts as well as other districts.
23. As a result of the general elections conducted in
November 1996 under the redistricting plan which in June 1996
the Supreme Court had ruled unconstitutional, six Democrats
and six Republicans were elected to Congress and continue to
serve there at the present time. One of the Democratic
members of Congress, Melvin Watt. is an African-American
elected from the racially gerrymandered Twelfth District and
another. Eva Clayton. is an African-Americanelected from the
racially-gerrvmandered First District. Both of these
Representatives were elected in 1992 pursuant to the intent of
the General Assembly to assure that two African-Americans
be elected to the Congress from North Carolina.
24. In devising and enacting this plan, the North
Carolina General Assembly. in which the House of
16
AMENDED COMPLAINT, CONTINUED. ..
Representatives was controlled by Republicans and the Senate
by Democrats, intended to perpetuate the results of the
November 1996 congressional elections that had been
conducted under the unconstitutional plan enacted in January
1992.
25. To accomplish this result the General Assembly
used as its starting point the unconstitutional plan of January
1992 under which the November 1996 election had been
conducted. Under the 1992 plan. portions of Greensboro, High
Point and Winston-Salem, the three cities of the Triad, were
placed in the Twelfth District with parts of Charlotte, a
different metropolitan area. This linkage. which was
unprecedented and did not conform to traditional redistricting
principles, was intended by the General Assembly to assure the
reelection to Congress of an African-American. Melvin Watt.
The First District was also created by the General Assembly in
a manner contrary to traditional redistricting principles in order
to assure the reelection to Congress of an African-American.
Eva Clayton.
26. Acting with a predominantly racial motive, and
acting under a court-imposed deadline. the General Assembly
enacted in late March, 1997 a redistricting plan in which the
Twelfth District was composed of parts of six counties. Each
of those six counties was divided along racial lines and for a
predominantly racial motive. Of Mecklenburg County's black
population, 84% was placed in the Twelfth Districtand 16% in
17
AMENDED COMPLAINT, CONTINUED. ..
the Ninth: but of its white population 27% was placed in the
Twelfth District and 73% in the Ninth. Of Forsyth County's
black population. 65% was placed in the Twelfth District and
35% in the Fifth District; but of its white population. 8% was
placed in the Twelfth District and 92% in the Fifth. Of
Guilford County's black population, 76% was placed in the
Twelfth District and 24% in the Sixth; but of its white
population. 25% was placed in the Twelfth District and 75% in
the Sixth. Of Iredell County's black population. 63% was
placed in the Twelfth District and 37% in the Tenth: but of its
white population. 37% was placed in the Twelfth District and
63% in the Tenth. Of Rowan County's black population. 66%
was placed in the Twelfth District and 34% in the Sixth: but of
its white population, 23% was placed in the Twelfth District
and 77% in the Sixth. Of Davidson County's black population
80% was placed in the Twelfth District and twenty percent 20%
in the Sixth District; but of its white population. 49.6% was
placed in the Twelfth District and 50.4% in the Sixth District.
The Twelfth District is the only congressional district which
under the March 1997 plan contains no county which is not
divided.
27. Since 1793, Mecklenburg and Guiltord Counties
have never been in the same district until the unconstitutional
race-based plan of January 1992 was enacted. Since its
creation. Forsyth County had never been in the same
congressional district with Mecklenburg County until 1992.
18
AMENDED COMPLAINT, CONTINUED. ..
28. Under the March 1997 redistricting plan. the
Tweltth District and First District have boundaries which were
drawn pursuant to a predominantly racial motivation. Absent
that predominantly racial motivation, those districts would have
far different boundaries. Had the General Assembly never
adopted its unconstitutional racially gerrymandered plans in
July 1991 and January 1992, the March 1997 plan would have
contained districts quite different from those in the March 1997
plan; and neither the Twelfth nor the First District would have
its present form.
29, Because they result from and are caused by the
predominantly racial motivation that gave rise to the January
1992 and July 1991 plans, the March 1997 plan is the fruit of
those racially gerrymandered plans -- and is tainted by them.
CLAIM FOR RELIEF
30. The preceding allegations of this Complaint are
incorporated herein by reference and realleged.
51. Plaintiffs Cromartie and Muse are registered
voters in the new First District and each has standing to contest
the March 1997 plan. which deprives them of their right to
equal protection under the Fourteenth Amendment and abridges
their rights as registered voters under the Fifteenth
Amendment.
19
AMENDED COMPLAINT, CONTINUED. ..
32. Plaintiffs Everett, Froelich, Linville and
Hardaway are registered voters in the new Twelfth District and
each has standing to contest the March 1997 redistricting plan,
which deprives them of their right to equal protection under the
Fourteenth Amendment and abridges their rights as registered
voters under the Fifteenth Amendment.
33 The Plaintiffs, 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,
Section 2 of the United States Constitution a right to choose
members of Congress in districts that are not race-based, either
directly or indirectly.
34. The right of the Plaintiffs to vote for members
of the House of Representatives is a right for which the
Plaintiffs 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
Representativesol the United States is a "privilege" of citizens
of the United States within the meaning of the Fourteenth
Amendment and is protected by that amendment from being
abridged by the State of North Carolina. The right of the
Plaintiffs 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.
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AMENDED COMPLAINT, CONTINUED . ..
33. Any action by officers of the State of North
Carolina which discriminates on the basis of race or color
violates this right of Plaintiffs to vote for members of
Congress; denies the Plaintiffs and all other voters equal
protection of the laws; and on account of race or color abridges
their right to vote.
36. The State Defendants shared an unconstitutional
and racially discriminatory intent and purpose and pursuant to
that intent they created congressional districts along racial lines
with the purpose of assuring that two African-American
representatives would be elected to Congress from North
Carolina. In so acting. the General Assembly violated
Plaintiffs’ equal protection rights.
WHEREFORE, Plaintiffs respectfully pray that:
The United States District Court Judge to whom
this case is initially assigned immediately notify the Chief
Judge of the United States Court of Appeals for the Fourth
Circuit so that a three-judge Court may be convened to hear
this case in as expeditious a manner as feasible.
2. The Court declare the 1997 congressional
redistricting plan to be unconstitutional and of no further force
and effect insofar as it purports to establish congressional
districts for the State of North Carolina.
21
AMENDED COMPLAINT, CONTINUED. ..
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3. The Court direct the General Assembly to
prepare promptly a new redistricting plan for the State of North
Carolina which will not be derived from any earlier
unconstitutional plan and which will not concentrate in any
congressional district persons of a particular race or color --
whether black, white. native American, or otherwise -- in a
manner that is totally unrelated to considerations of
compactness, contiguousness, and geographic or jurisdictional
communities of interest; and if the General Assembly does not
prepare promptly such a plan, then the Court itself prepare such
a plan with the aid of suitable impartial experts.
4. The Court permanently enjoin the Defendants
Leake. Burnette. Blackwell, Presser and Youngblood from
conducting elections for the U.S. House of Representatives in
North Carolina until the General Assembly enacts, and the
Department of Justice preclears, a new redistricting plan as
prayed for in Paragraph 3 above.
5 The Court enter both a temporary restraining
order and preliminary injunction enjoining the Defendants
Leake. Burnette, Blackwell, Presser and Youngblood from
taking any action in preparation for primary or general
elections for the U.S. House of Representatives in North
Carolina until the General Assembly enacts and the Department
of Justice preclears a new redistricting plan as prayed for in
Paragraph 3 above.
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AMENDED COMPLAINT, CONTINUED. ..
6. That for purposes of consideration of any
injunctive relief this complaint, when properly verified. be
treated as an affidavit in this action.
Te That the Court award cost and attorneys tees to
the Plaintiffs as against the Defendants pursuant to the Equal
Access To Justice Act 28 U.S.C. Section 2412 or as otherwise
authorized by law.
8. That the Court grant such other and further relief
as may, to the Court, seem just and proper.
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AMENDED COMPLAINT, CONTIN UED. ..
Respectfully submitted, this the 10th day of
October 1997.
/s/ Robinson 0. Everett
Everett & Everett
N. C. State Bar No.: 13 8 5
As Attorney for the Plaintiffs
P.O. Box 586
Durham, NC 27702
Telephone: (919) 682-5691
Williams, Boger, Grady, Davis
& Tittle, P.A.
/s/ by: Martin B. McGee
State Bar No.: 22198
Attorneys for the Plaintiffs
P.O. Box 810
Concord, NC 28026-0810
] Telephone: (704) 782-1173
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25
DEFENDANTS’ ANSWER TO AMENDED COMPLAINT
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
Civil Action No. 4-96-CV-104-H2
MARTIN CROMARTIE, THOMAS )
CHANDLER MUSE, and GLENNES DODGE )
WEEKS.
Plaintiffs,
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JAMES B. HUNT. JR., in his official capacity )
as Governor of the State of North Carolina, )
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Defendants. )
DEFENDANTS’ ANSWERTO AMENDED COMPLAINT
Defendants, Governor James B. Hunt, et al. for their
answer to plaintiffs’ amended complaint, say and allege:
FIRST DEFENSE
PRELIMINARY STATEMENT
The allegations of plaintiffs’ preliminary statement
constitute legal contentions. To the extent an answer is
required. the allegations are denied.
ANSWER, CONTINUED. ..
THE PARTIES
1. The allegations regarding the citizenship,
residence and voter registration of the plaintiffs are admitted.
2. It is admitted that James B. Hunt, Jr. is the
Governor of the State of North Carolina, sued in his official
capacity, and that pursuant to Article III of the Constitution of
North Carolina the executive power of the State is vested in the
Governor and it is his duty to take care that the laws are
faithfully executed. It is further admitted that pursuant to N.C.
GEN. STAT. § 163-194, the Governor shall issue a commission
attesting to a person's election as a member of the United
States House of Representatives upon that person’s production
of a certificate of his or her election from the Secretary of State.
Any remaining allegations in paragraph 2 are denied.
3. It is admitted that Dennis Wicker is the
Lieutenant Governor of the State of North Carolina, sued in his
official capacity, and that pursuant to Articles II and III of the
Constitution of North Carolina. he is President of the Senate
and performs such additional duties. including signing enacted
legislation, as the General Assembly or the Governor may
assign to him. Any remaining allegations in paragraph 3 are
denied.
4. It is admitted that Harold Brubaker is the
Speaker of the North Carolina House of Representatives. sued
ANSWER; CONTINUED. ..
in his official capacity, and performs duties. including signing
enacted legislation, assigned to him by the House of
Representatives. Any remaining allegations of paragraph 4 are
denied.
5, The allegations of paragraph 5 are admitted.
6. The allegations of paragraph 6 are admitted.
JURISDICTION AND VENUE
7 It 1s admitted that plaintiffs rely upon the
constitutional and statutory provisions cited in paragraph 7.
Any remaining allegations are denied.
8. The allegations of paragraph 8 are admitted.
9. It is admitted that venue exists pursuant to 28
U.S.C. § 1319(b) in Raleigh. North Carolina in the United
States District Court for the Eastern District of North Carolina,
Western Division. Any remaining allegations in paragraph 9
are denied.
THREE-JUDGE COURT
10. The allegations of paragraph 10 are admitted.
ANSWER, CONTINUED. ..
HISTORY OF THE CASE
H. The allegations of paragraph 11 are admitted.
12. The allegations of paragraph 12 are admitted.
13. The allegations of paragraph 13 are admitted.
14. It is admitted that on July 9. 1991, the General
Assembly enacted a congressional redistricting plan which
included one majority African-American district. All
remaining allegations of paragraph 14 are denied.
IS. It is admitted that on December 18. 1991, the
1991 congressional plan was denied preclearance under § 5 of
the Voting Rights Act by John R. Dunne, Assistant Attorney
General. Civil Rights Division on behalf of the United States
Attorney General. All remaining allegations of paragraph 15
are denied.
16. It 1s admitted that on January 24, 1992. the
General Assembly enacted a second congressional redistricting
plan which included two majority African-American districts.
All remaining allegations of paragraph 16 are denied.
17. The allegations of paragraph 17 are admitted.
ANSWER, CONTINUED. ..
18. The allegations of paragraph 18 are legal
contentions. To the extent an answer is required, the
allegations are denied.
19, The allegations of paragraph 19 constitute legal
contentions. To the extent an answer is required the courts’
opinions speak for themselves and any remaining allegations
are denied.
20. The allegations of paragraph 20 are admitted.
21. It 1s admitted that subsequent proceedings were
stayed in this action pending the outcome of the proceedings in
the Shaw litigation, including possible legislative action by the
General Assembly to enact a new congressional redistricting
plan to cure the constitutional defect held to exist in the 1992
plan. Any remaining allegations of paragraph 21 are denied.
22, The allegations of paragraph 22 are admitted.
23. It is admitted that general elections conducted
in November 1996 under the plan ruled on by the Supreme
Court in June 1996 resulted in the election of six Democrats
and six Republicans to the United States House of
Representatives and that these members continue to serve at the
present time. It is further admitted that one of the Democrat
members 1s Mel Watt, an African-American elected from the
Tweltth District, and another Democrat member is Eva
ANSWER, CONTINUED. ..
Clayton. an African-American elected from the First District,
and that both of these members were elected in these same
districts in 1992. All remaining allegations of paragraph 23 are
denied.
24. It is admitted that the North Carolina General
Assembly. where the Republicans comprise a majority in the
House of Representatives and the Democrats comprise a
majority in the Senate, publicly stated that one of its goals in
enacting a new congressional redistricting plan was to maintain
the partisan balance of the State's congressional delegation
which resulted from the 1996 elections and that the plan
enacted by the General Assembly achieved that goal. All
remaining allegations of paragraph 24 are denied.
25. It 1s admitted that in drawing a new
congressional plan, the General Assembly publicly stated its
goal to cure the constitutional defect identified by the Supreme
Court in the 1992 plan and that the plan enacted by the General
Assembly achieved that goal. It is further admitted that
portions of the metropolitan areas of Charlotte, Greensboro.
High Point and Winston-Salem were included in the Twelfth
District in the 1992 plan. All remaining allegations of
paragraph 25 are denied.
26. [t is admitted that the General Assembly enacted
a new Congressional redistricting plan on March 31, 1997.
pursuant to a court-ordered deadline of April 1, 1997. It is
ANSWER, CONTINUED. ..
further admitted that the new Twelfth District includes parts of
six counties and that the percentages of African-American and
white populations in the counties and districts are
approximately correct as stated. It is further admitted that the
Twelfth District is the only congressional district in which all
counties contained in the district have been divided between
districts. All remaining allegations of paragraph 26 are denied.
27. From 1789 to 1792, Forsyth. Guilford and
Mecklenburg counties were in the same congressional district
and on numerous occassions after 1792 Forsyth and Guilford
counties were in the same congressional district. However, it
1s admitted that from 1793 to 1992 Mecklenburg and Guildford
Counties were never in the same congressional district and that
from its creation until 1992 Forsyth County was never in the
same congressional district as Mecklenburg County. Any
remaining allegations of paragraph 27 are denied.
28. The allegations of paragraph 28 are denied.
29. The allegations of paragraph 28 are denied.
CLAIM FOR RELIEF
30. The preceding answers are incorporated by
reference in answer to paragraph 30.
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to
ANSWER, CONTINUED. ..
31. [t is admitted that plaintiffs Cromartie and Muse
are registered voters in the new First District. All remaining
allegations are denied.
32. [t 1s admitted that plaintiffs Everett. Froelichand
Hardaway are registered voters in the new Tweltth District. All
remaining allegations are denied.
33. The allegations of paragraph
contentions. To the extent an answer is
allegations are denied.
34. The allegations of paragraph
contentions. To the extent an answer is
allegations are denied.
35. The allegations of paragraph
contentions. To the extent an answer 1s
allegations are denied.
36.
SECOND DEFENSE
33 are legal
required, the
33 are legal
required, the
The allegations of paragraph 36 are denied.
Plaintiff Linville has standing to challenge neither the
First nor Twelfth Districts.
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ANSWER, CONTINUED. ..
THIRD DEFENSE
Plaintifts have failed to state a claim for relief under the
Fourteenth or Fifteenth Amendment.
FOURTH DEFENSE
The First and Twelth Congressional Districts are not
racial gerrvmanders.
FIFTH DEFENSE
The State has a compelling interest in complying with
{ 5 of the Voting Rights Act, as amended, 42 U.S.C. § 1973c.
SIXTH DEFENSE
The State has a compelling interest in complying with
§ 2 of the Voting Rights Act, as amended. 42 U.S.C. § 1973c.
SEVENTH DEFENSE
The State has a compelling interest in eradicating the
effects of past racial discrimination.
ANSWER, CONTINUED. ..
EIGHTH DEFENSE
James B. Hunt. Dennis Wicker, Harold Brubaker and
Elaine Marshall. sued in their official capacities. are not proper
defendants to this action.
This the 25th day of November, 1997.
MICHAEL F. EASLEY
ATTORNEY GENERAL
/s/ Edwin M. Speas, Jr.
Senior Deputy Attorney General
N.C. State Bar No. 4112
/s/ Tiare B. Smiley
Special Deputy Attorney General
N. C. State Bar No. 7119
/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]
a
(W
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PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
RALEIGH DIVISION
Civil Action No. 4.96-CV-104
MARTIN CROMARTIE. et al.,
Plaintiffs,
VS.
JAMES B. HUNT, JR.. in his official
capacity as Governor of the State of
North Carolina, er al.
Defendants.
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MOTION FOR PRELIMINARY INJUNCTION
Pursuant to Rule 65 of the Federal Rules of Civil
Procedure — and renewing the prayer for relief in their amended
complaint — Plaintiffs move the Court for entry forthwith of a
Preliminary Injunction prohibiting congressionalelections from
taking place under the current Congressional redistricting plan.
In support of Plaintiffs” Motion. the Plaintiffs allege and state:
On July 9. 1991. the General Assembly enacted
a congressional redistricting plan (the “First
Plan”) that created one of twelve congressional
districts which was primarily based on race.
MOTION FOR PRELIMINARY INJUNCTION, CONTINUED. ..
2.
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Even though the First Plan was itself a racial
gerrymander, the Civil Rights Division of the
Department of Justice. pursuant to its
“maximization” policy. denied preclearance of
that plan under Section 5 of the Voting Rights
Act on December 18. 1991.
In January, 1992, the General Assembly
enacted a second redistricting plan (the “Second
Plan”), which was also predominately
motivated by race. This plan had two bizarre
majority-black districts, the First and the
Twelfth, as well as other bizarre predominantly
white districts. Neither of these districts was
geographically compact or contiguous and the
boundaries of each district defied traditional
principles of redistricting.
Thereafter in March 1992, a lawsuit was
commenced by five Durham voters against the
Governor and various other State Defendants. in
which those Plaintiffs attacked the
constitutionality of the redistricting plan and
especially the First and Twelfth Districts.
More than four years after the initiation of that
litigation, acting on the Plaintiffs second
appeal to the United States Supreme Court. the
MOTION FOR PRELIMINARY INJUNCTION, CONTINUED. ..
Pre
Court held on January 13. 1996 that the Twelfth
District of the Second Plan was race-based and
did not meet the test of strict scrutiny and
therefore was an unconstitutional racial
gerrymander. See Shaw v. Hunt 116 S.Ct. 1894
(1996). The Supreme Court also held that
neither the Plaintiffs nor the Plaintiff-
intervenors in that action had standing to raise
the issue of unconstitutionality of the First
District, because none was a registered voter in
that district. Id.
6. Despite the Shaw Plaintiffs’ motion to restrain
the 1996 congressional elections from
proceeding under the Second Plan, the elections
were held for the third time under the plan that
the Supreme Court had already declared to be
unconstitutional.
7 Thus, at the end of the current session of
Congress, North Carolina will have been served
for six years by members of Congress who have
been elected under an unconstitutional
redistricting plan.
8. The Complaint in this action, which challenges
the third congressional plan enacted by the
General Assembly in March 1997 (the “Third
MOTION FOR PRELIMINARY INJUNCTION, CONTINUED. ..
10.
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Plan™) as unconstitutional, was filed July 3.
1996 and amended in October 1997.
In devising the Third Plan, the General
Assembly used as its starting point the
unconstitutional Second Plan of January 1992.
In the Third Plan the boundaries of the Twelfth
and First Districts are again predominantly
motivated by race and cannot pass the strict
scrutiny test.
The 1998 congressional elections are rapidly
approaching and the filing period for the
elections will close on February 2, 1998. Even
though litigation challenging North Carolina's
redistrict plans was first filed in March of 1992.
the citizens of North Carolina face the
possibility that they shall have to endure a
fourth election and eight years of representation
by persons elected in violation of the
Constitution.
If injunctive relief is not granted by this Court.
Plaintiffs will suffer irreparable injury of being
represented by members of Congress elected
under an unconstitutional plan which
stigmatizes voters of all races.
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MOTION FOR PRELIMINARY INJUNCTION, CONTINUED. ..
12. In light of the recent history of the General
Assembly's use of racial gerrymanders and
their cosmetic attempt at remedying their
unconstitutional Second Plan, Plaintiffs are
likely to prevail on the merits.
WHEREFORE, Plaintiffs pray the Court:
I, That a preliminary injunction prohibiting
congressional elections from taking place under
the congressional redistricting plan enacted by
the General Assembly in March 1997.
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That Plaintiffs be granted such other relief as
the Court deems appropriate.
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MOTION FOR PRELIMINARY INJUNCTION, CONTINUED. ..
/s/ Robinson O. Everett
Everett Law Firm
P.O. Box 386
Durham. NC 27702
Tel. No.: (919)-682-5691
Williams, Boger. Grady, Davis and
Tittle
/s/ by: Martin B. McGee
147 Union Street, South
P.O. Box 810
Concord, NC 28026-0810
Tel No.: (704)-782-1173
NC Bar No.: 22198
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PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
RALEIGH DIVISION
Civil Action No. 4.96-CV-104
MARTIN CROMARTIE. er al,
Plaintiffs,
VS.
JAMES B. HUNT. JR.. in his official
capacity as Governor of the State of
North Carolina. ef al.,
Defendants.
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MOTION FOR SUMMARY JUDGMENT
Pursuant to Federal Rules of Civil Procedure, Rule 56.
Plaintiffs move for summary judgment and in support thereof
they respectfully show the Court:
L, On June 13. 1996. the Supreme Court decided
in Shaw v. Hunt, 116 S.Ct. 1894 (1996), that the North Carolina
Congressional redistricting plan adopted in 1992 was an
unconstitutional racial gerrymander and held that the five
original plaintiffs in that action had standing to challenge the
Twelfth District. where they resided. but had no standing to
challenge the First District.
42
MOTION FOR SUMMARY JUDGMENT, CONTINUED. ..
2. A few days later, Plaintiffs Cromartie. Muse,
and another Tarboro registered voter. instituted the present
action which, attacked the First Congressional District, where
they were registered voters.
3. Because the Shaw plaintiffs were seeking to
have a new redistricting plan put into effect for the November
1996 election by the three-judge District Court in which that
case was pending, the three original Plaintiffs in this action and
agreed with the Defendants to enter into a consent decree which
would stay proceedingsin this action to await conclusion of the
proceeding in Shaw v. Hunt.
4. In Shaw, the three-judge District Court declined
to order that a new redistricting plan be put into effect for the
November 1996 election, but did require the General Assembly
to draw a new plan prior to April 1. 1997. Such a plan was
ultimately enacted by the General Assembly late in March,
1997, and thereafter it was precleared by the Department of
Justice and approved by the Shaw District Court.
5 Subsequently, the stay that had been entered by
consent in this action was dissolved and an amended complaint
was filed by Plaintiffs Cromartie and Muse, as registered voters
in the "new" First District. They were joined as plaintiffs by
four others who claim standing to attack the "new" Twelfth
District.
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MOTION FOR SUMMARY JUDGMENT, CONTINUED. ..
6. In their amended complaint. the Plaintiffs
prayed that the Court declare unconstitutional the 1997
Congressional redistricting plan and enter an order which both
temporarily and permanently would enjoin the conducting of
elections according to the plan enacted by the General
Assembly in 1997.
7. When first filed, this action was assigned to
District Judge Malcolm Howard. but in January. 1998, a three-
judge court was assigned to this case. pursuant to 28 U.S.C.
Section 2284; and a motion for preliminary injunction has now
been filed in the three-judge court to supplement the prayer for
relief in the amended complaint.
8. Submitted herewith are the affidavits of Lee
Mortimer, John Weatherly, Neil C. Williams, R.O. Everett and
J.H. Froelich, Jr. As appears from these affidavits and from
other evidence of which the Court may properly take judicial
notice - such as maps of the current districting plan and of its
predecessor plans - no dispute exists with respect to the
material facts. These undisputed facts establish that the
Congressional redistricting plan adopted by the North Carolina
General Assembly in 1997 is itself a racial gerrymander and
that both the Twelfth and First Districts under that plan have
been drawn by the Legislature with a predominately racial
motive and are tainted by being derived from the
unconstitutional racially gerrymandered Twelfth and First
Districts in the 1992 plan.
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MOTION FOR SUMMARY JUDGMENT, CONTINUED. ..
9. The filing period for Congress. which
commenced 1n early January, 1997, has already come to an end
and there 1s urgency in obtaining a judicial determination as to
the unconstitutionality of the current redistricting plan. and
especially with respect to the racially gerrymandered Twelfth
and First Districts. which have boundaries that are the result of
a predominately racial purpose. In order to assure that the
voters have a meaningful opportunity to vote for candidates of
their choice in an election untainted by any racial gerrymander.
it 1s imperative that the Court quickly determine the
constitutionality of the present plan, and especially of the two
districts where plaintiffs reside.
WHEREFORE, Plaintiffs respectfully move the Court
to enter a summary judgment declaring that. in the 1992
redistricting plan, the First District - like the Twelfth - was an
unconstitutional racial gerrymander, and also declaring that the
Twelfth and First Congressional Districts under the 1997 plan
are unconstitutionally gerrymandered; and enjoining the use of
these districts and of the current redistricting plan in the 1998
Congressional election or in any future election.
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MOTION FOR SUMMARY JUDGMENT, CONTINUED. ..
Respectfully submitted, this the 5th day of
February. 1998.
/s/ Robinson O. Everett
Everett & Everett
N.C. State Bar No.: 1385
As Attorney for the Plaintiffs
P.O. Box 586
Durham, NC 27702
Telephone: (919)-682-5691
Williams, Boger, Grady, Davis
& Tittle, P.A.
/s/ by: Martin B. McGee
State Bar No.: 22198
Attorneys for the Plaintiffs
P.O. Box 810
Concord, NC 28026-0810
Telephone: (704)-782-1173
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47
AFFIDAVIT OF LEE MORTIMER (WITHOUT ATTACHMENTS
OR TABLES) (CD 34)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
Civil Action No. 04-CV-104-H2
Martin Cromartie et al.
V.
James B. Hunt, Jr. in his
capacity as governor
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AFFIDAVIT OF LEE MORTIMER
LEE MORTIMER, being duly sworn, deposes and declares the
following:
I live at 4116 Livingstone Place in Durham. North Carolina,
and have resided in Durham for nine years and in North
Carolina for 40 years. I am currently employed as a technical
writer in Research Triangle Park, but from 1974-1980, I
worked as a newspaper and broadcast journalist at the High
Point Enterprise and other news organizations. | have a degree
in history with a minor in political science from Western
Carolina University.
During and after my journalism career. | have maintained a
Keen interest in politics and the political process, particularly
issues relating to voting and representation. and have studied
48
AFFIDAVIT OF LEE MORTIMER, CONTINUED. ..
these issues extensively. | have written a number of articles on
those subjects. which have been published in many North
Carolina newspapers. including African-American newspapers
and other publications such as The Journal of Common Sense.
the Independent Weekly, The Beacon, and The Prism.
I was appointed by Senate President Pro-Tem Marc Basnight
to serve during 1996 on the General Assembly's Election Laws
Reform Committee. This committee of 14 legislators and
public members studied and recommended a range of election-
related proposals. some of which were enacted. 1 proposed
legislation. which three study committees recommended. to
authorize local governments to adopt proportional voting
methods. The committee's co-chair, Sen. Wib Gulley. and
another member. Sen. Leslie Winner, subsequently served on
the General Assembly's Senate Select Committee for
Congressional Redistricting.
In April 1994. | was interviewed on National Public Radio
(NPR) about a proposal I had designed for North Carolina
Congressional elections using proportional voting. That
proposal was subsequently publicized in the New York Times.
the New Yorker. Congressional Quarterly. and USA Today.
The Institute of Bill of Rights Law of the Marshall-Wythe
School of Law at the College of William and Mary asked to
include one of my articles in its Supreme Court Preview
conference for journalists and lawyers held September 22-23.
1995.
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AFFIDAVIT OF LEE MORTIMER, CONTINUED. ..
I was asked by the plaintitts in Shaw v. Hunt to provide expert
testimony about congressional redistricting and representation
issues. | was deposed by counsel for the defense and the
plaintiffs on November 29. 1993. Then. as now, | have neither
requested nor received a tee for my testimony.
The Appendix outlines my additional qualifications to provide
expert testimony on the Congressional redistricting process in
North Carolina. It also includes a partial listing of my articles.
Except as otherwise noted. the opinions in my analysis are
based on official data from the 1997 Congressional redistricting
plan (maps shown in Exhibit A), or from voting returns reported
by the North Carolina Board of Elections. My analysis and
conclusions follow.
I. RACE STILL PREDOMINATES IN 12TH AND IST
DISTRICTS
In late March 1997. the North Carolina General Assembly
enacted a new Congressional redistricting plan (see Exhibit A)
to replace the previous plan, which the U.S. Supreme Court
ruled had used unconstitutional racial gerrymandering in
creating the 12th District. The Court found that race was "the
predominant consideration” in drawing the 12th District, and
that the 12th District did not meet the test of "strict scrutiny.”
Although the Ist District was not directly ruled on by the
Supreme Court. its severe misshapenness was cited in the
Court's majority opinion. That severe misshapenness, in my
50
AFFIDAVIT OF LEE MORTIMER, CONTINUED. ..
opinion, indicates that race had predominated in determining
the 1st District's boundaries. Sen. Roy Cooper, the chairman
of the Senate Redistricting Committee, gave the same
assessment in a meeting with Congressional incumbents —
saying that if the former Ist District were challenged. it would
be declared unconstitutional.’
Both districts were redrawn in the 1997 redistricting plan, but
it is clear from their resemblance to the previous districts that
the redrawn districts are the "fruit of the poisonous tree," and
so, In my opinion, are irreparably tainted. I believe the new
12th District and 1st District would never have been drawn
with their present boundaries — except for race.
New Twelfth District — The new district subordinates to race
all traditional redistricting principles, such as compactness and
respect for county and municipal boundaries. [ can see no
legitimate basis for the way disparate and geographically
dispersed minority communities were grouped together. The
new 12th District is. in my opinion, simply a makeover of the
old unconstitutional district.
New First District — Like the old 1st District from which it
derives, the new Ist District is not narrowly tailored to meet a
compelling state interest. The number of counties that are
divided and the failure to produce a more geographically
compact district demonstrate to me that the purpose was to
classify and over-concentrate voters on the basis of race.
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II. 12TH DISTRICT'S SINGLE-MINDED FOCUS ON RACE
The new 12th District was reduced from 10 counties and three
metropolitan areas — to six counties and two metropolitan
areas. Though now shorter and wider, it could only be called
"less bizarre" in appearance than its unconstitutional
predecessor. Strictly speaking, the new 12th District is no
longer a "minority-majority" district — 47 percent of its
population is black and 48 percent is "minority." However, I
am not aware that any specific percentage of minority residents
has been designated as a benchmark for determining whether
a district 1s a racial gerrymander. I believe it is the process
used to reach a result — rather than the result itself — that
indicates racial intent. In the case of the new 12th District, the
state's own data show unmistakably that voters were identified,
classified, and assigned by race.
In my opinion, three principal indicators reveal a racial
methodology that subordinated all other considerations to race
in redrawing the 12th District.
Voters assigned by race — The 12th District is made up of
parts of six counties. In each county. the maximum number of
blacks and the minimum number of whites were identified and
assigned to the 12th District (see Table 1). In Mecklenburg
County. 84 percent of all blacks in the county. but only 27
percent of all whites. were placed in the 12th District; while
only 16 percent of all blacks, but 73 percent of all whites in the
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county, were placed in the 9th District. In Guilford County. 76
percent of all blacks. but only 25 percent of all whites. were
placed in the 12th District: while 24 percent of all blacks. but
75 percent of all whites, were placed in the 6th District. In
Forsyth County. 65 percent of all blacks, but only 8 percent of
all whites, were placed in the 12th District; while 35 percent of
all blacks, but 92 percent of all whites, were placed in the 5th
District.
Table 1 — 12th District Voters Assigned by Race
County Race 12th District Other District
Mecklenburg Black 84% 16%
(12th & 9th) White 27% 73%
Guilford Black 76% 24%
(12th & 6th) White 23% 75%
Forsyth Black 65% 35%
(12th & 5th) White 8% 92%
Davidson Black 80% 20%
(12th & 6th) White 49.6% 50.4%
Rowan Black 66% 34%
(12th & 6th) White 23% 77%
Iredell Black 63% 37%
(12th & 10th) White 37% 63%
Source: 1997 Redistricting Plan
The three urban cores drew a combined population ot 413.794
(75 percent of the district total), leaving 138.249 (23 percent of
the total) to be drawn from the three corridor counties. In
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Davidson County, 80 percent of blacks and 49.6 percent of
whites were placed in the 12th District. while 20 percent of
blacks and 50.4 percent of whites were placed in the 6th
District. In Rowan County. 66 percent of blacks and 23 percent
of the whites were placed in the 12th District, while 34 percent
of blacks and 77 percent of whites were placed in the 6th
District. In Iredell County, 63 percent of blacks and 37 percent
of the whites were placed in the 12th District: while 37 percent
of blacks and 63 percent of whites were placed in the 10th
District.
Table 2—Intact vs. Divided Counties
% %
District Counties # Intact Intact Divided
First 20 10 50% 50%
Second 9 5 55% 45%
Third 18 11 61% 39%
Fourth 5 2 40% 60%
Fifth 9 7 78% 22%
Sixth 7 2 29% 71%
Seventh 9 6 67% 33%
Eighth 10 8 80% 20%
J
No
Ninth J 67% 33%
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Tenth 11 10 91% 9%
Eleventh 15 15 100% 0
Twelfth 6 0 0 100%
11 dists. _ — 65% 35%
12 dists. re - 60% 40%
Source: 1997 Redistricting Plan
No intact counties — According to news media reports and
legislative statements, the General Assembly had as one major
redistricting objective to keep counties and municipalities
together.” Though totally disregarded in the 12th District. that
objective was substantially followed in the other 11 districts
(see Table 2). Nine districts keep half or more of their counties
intact. Two districts (4th and 6th) have some counties that are
intact. Only the 12th District has no county. and none of its
eight principal municipalities, which is not divided.
In my opinion, the only explanation why the state selectively
disregarded its objective of maintaining intact counties and
municipalities in the 12th District is that that objective
undermined and conflicted with the predominate objective of
maximizing the district's black population. The new 12th
District follows and carries over the same methodology of the
former 12th District — that is dividing all counties and
municipalities in order to maximize its black population.
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The 11 districts that include some undivided counties average
65 percent intact counties. The average for all 12 districtsis 60
percent intact counties. Of North Carolina's 100 counties, 22
of them are divided. Sixteen of the 22 divided counties border
either the 12th District or the 1st District. This reveals to me,
again, that dividing counties is both a characteristic and a tool
of race-based redistricting in North Carolina. In my opinion,
the inclusion of some minimum number of intact counties in a
district 1s an important test of whether that district is race-
based. It appears to me that the reason the 12th District has no
intact counties was because race was the predominant
consideration.
Lacks common characteristics — The "common
characteristics” test is a common-sense criteria, that I believe
has been applied in redistricting cases, to determine whether
race predominated in drawing a district. For example, if a
district has a bizarre shape and contains no intact counties, it
might allay suspicion if some other districts in the jurisdiction
were also bizarrely shaped, or also lacked intact counties, or
were both bizarre and lacked intact counties. The 12th
District's bizarreness and lack of intact counties are shared by
no other Congressional districts in North Carolina.
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AFFIDAVIT OF LEE MORTIMER, CONTINUED. ..
ILI. "METROPOLITAN DISTRICT" A SUBTERFUGE FOR
RACE CONCENTRATION
Defenders of the 12th District have described 1t as a
"metropolitandistrict” that "gathers like . . . metropolitan areas
of Charlotte and the Triad." No geographic, economic. historic
or demographic data exists to support the notion that Charlotte-
Mecklenburg and the Triad counties of Forsyth and Guilford
are one metropolitanarea. Mecklenburg and Guilford counties
have not shared the same Congressional district since 1792.
Then, all of western North Carolina was in one district.
Mecklenburg and the Triad counties are also defined by their
separate newspaper circulation and broadcast service areas.
If the state had wanted to develop a bonafide "metropolitan
district," two logical groupings would have been Forsyth and
Guilford counties as one metropolitandistrict and Mecklenburg
County as another. With 511,433 residents. Mecklenburg
County has 93 percent of the population required for a
Congressional district. It could have been supplemented with
another 41,000 residents from suburban areas in any of five
adjoining counties.
Guilford and Forsyth, the state's third and fifth most populous
counties, have a combined population of 613.298 residents.
The surplus 61.000 residents could have been logically
transferred from outlying, semi-rural portions otf either county
and placed in the predominately rural and semi-rural 3th
District that encompasses the state's northwestern region.
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AFFIDAVIT OF LEE MORTIMER, CONTINUED. ..
[t 1s clear to me that the reason these options were not
considered was because neither option would have produced a
district that had more than about 29 percent minority
population. However. by connecting two predominately
African-American urban cores in separate metropolitan areas
— and linking them through a predominately rural corridor —
the resulting district was able to over-concentrate its minority
populationto 48 percent. In my opinion, the new 12th District
1s evidently a direct derivative of the old 12th District, in which
racially drawn urban cores in different metropolitan areas were
linked together through rural corridors.
IV. IST DISTRICT MAJORITY EXCEEDS VOTING RIGHTS
MANDATE
Northeastern North Carolina has historically been home to the
state's largest concentration of African-American residents.
About a quarter million African-Americans live in the rural
counties clustered near the state's northeastern border with
Virginia. "This is more blacks than live in any single
metropolitan area of the state, including the Triad. Triangle.
and Metrolina.’
History and demographics make northeastern North Carolina
a logical location for a "minority-opportunity” district. where
blacks make up a substantial portion of the district population.
When the state passed its original post-census redistricting plan
in early 1991. a minority-majoritydistrict was proposed for the
northeastern region. Unlike the 12th District. a minority-
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AFFIDAVIT OF LEE MORTIMER, CONTINUED. ..
opportunity Congressional district in the state's northeastern
region does have historical and demographic legitimacy.
However, the new Ist District over-concentrates a legitimate
community of African-Americansinto an artificial majority by
excessively dividing counties. Half of the district's 20 counties
were divided, generally on a racial basis, in order to give the Ist
District a contrived black majority. The final Senate-House
"compromise" plan had the most divided counties. Earlier
versions divided fewer counties. In the initial House plan, five
of 22 counties (23 percent) were divided.
The former Ist District covered 28 counties, and divided 19 of
them. The new 1st District covers 20 counties, and divides 10
of them. Formerly 57 percent black and 58 percent minority.
the 1st District 1s now 50.27 percent black and 51.38 percent
minority. The divided counties generally follow the same
pattern as the 12th District, with the maximum number of
blacks and the minimum number of whites being assigned to
the race-based district. Thus. the districts are not narrowly
tailored to meet a legitimate state objective.
VY. WHITE VOTES CEMENT CLAYTON'S OVERWHELMING
ADVANTAGE
Rep. Eva Clayton was elected to Congress from the 1st District
with 68 percent of the vote in 1992; 61 percent in 1994: and 67
percent in 1996 — an average of 66 percent over three general
elections. This high re-election margin can be attributed to
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Clayton's receiving 90 percent or more of the district's black vote
and a substantial share of the white vote. A recent News and
Observer report estimated Clayton's white support during those
three general elections to be about 25 percent.* Analysis of
Clayton's 66-percent margins indicates her white support could be
higher (see calculation below).
52% (black voters) x 100% (voted for Clayton) = 52%
48% (white voters) x 29% (voted for Clayton) = 14%
52% + 14% = 66% (Clayton re-election average)
If black participation in her 57-percent district were 52 percent
(reflecting a lower black voting-age population), and if Clayton
received 100 percent of that vote, she would have received 29
percent of the white vote. If Clayton's black support were less
than 100 percent, or if black participation were lower than 52
percent, her white support could have been higher.
When minority-majority districts were instituted, it was assumed
that a 55-65 percent black population was needed to overcome
white bloc voting and consequent defeat of the minority-preferred
candidate. Since some white voters do, in fact, vote for the
minority candidate. the 1st District's 57 percent black population
— supplemented by white votes — has translated to an assured
and overwhelming victory for the minority Congressional
candidate.
Even in the reduced. 50.3-percent-black 1st District, the minority
candidate has an excessive advantage. In the 20 counties of the
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AFFIDAVIT OF LEE MORTIMER, CONTINUED. ..
new lst District, the 1996 results tor President, U.S. House. and
U.S. Senate confirm a continuing. overwhelming advantage for
the minority candidate: Bill Clinton received 61 percent of the
two-party vote; Democratic House candidates (Clayton. Neil
Cashion, Bob Etheridge, George Parrott) received 61 percent; and
Harvey Gantt received 56 percent.’
While Rep. Clayton, as the incumbent, could expect a higher level
of support, I believe Harvey Gantt's 56-percent vote in his 1996
race against Sen.Jesse Helms represents the core-level support
available to a non-incumbent black challenger facing a white
incumbent. Rep. Clayton confirmed the importance of the Gantt
vote in redrawing her district during a talk to a UNC audience two
days before the redistricting plan was finalized.
According to a newspaper account. Clayton cited "inside
information" based on "voting patterns in Gantt's U.S.Senate race”
that showed the new Ist District would "enjoy a 36-percent
majority of sympathetic. . . former Gantt supporters” (see Exhibit
B).
VI. WINNERS AND LOSERS DECIDED ON THE BASIS OF RACE
The Voting Rights Act (VRA) requires that elections be "equally
open" to racial minorities — and that minorities not have "less
opportunity than other members of the electorate to participate in
the political process and elect representatives of their choice.”
il
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AFFIDAVIT OF LEE MORTIMER, CONTINUED. ..
However. by creating an artificially contrived black majority. the
state has gone well beyond what the VRA authorizes in assuring
“equal opportunity." The result is assured victory for minority
voters and the minority-preferredcandidate and assured defeat for
other voters and candidates.
Facing a built-in 12-point minimum deficit, Rep. Clayton's
ceneral election opponents have no more opportunity of being
elected than they did in the previous 1st District. Thus. the state,
using divided counties as a tool of race-based redistricting. has
given minority voters in the 1st District — not just an "equal
opportunity" to win — but a virtual certainty of winning.
When the state intervenes to grant one group of voters more than
a 30-percent probability of electing its candidate of choice. that
denies to all other voters and candidates an equal opportunity to
participate. A state-imposed 56-percent core-level advantage for
the minority-preferred candidate cannot be considered "equal
opportunity participation.”
[n my opinion, redistricting intended to assure victory to some and
consequent defeat to others — on the basis of race — exceeds the
Voting Rights Act mandate and is a denial of equal protection of
the laws under the 14th Amendment to the U.S. Constitution.
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AFFIDAVIT OF LEE MORTIMER, CONTINUED. ..
VII. "EQUAL OPPORTUNITY" QUANTIFIABLE IN NORTH
CAROLINA
If’ "equal electoral opportunity” can be accepted as being
somewhere close to a 50-percent probability of winning, the level
of black voting-age population (BVAP) needed to achieve "equal
electoral opportunity” for minority Congressional candidates has
been quantified in recent research by Columbia University
political scientists Charles Cameron, David Epstein, and Sharyn
O'Halloran. Their research appeared in an article entitled "Do
Majority-Minority Districts Maximize Black Representation in
Congress?" American Political Science Review (December 1996).
The researchersused a "multinomial logit" statistical methodology
to estimate the level of BVAP in Southern states needed "to
achieve a 50 percent probability that the elected representative is
a black Democrat, that is. the point of equal opportunity for
minority voters to elect their candidate of choice.” The
researchers conclude: "In the South, the required level of BVAP
(for equal opportunity) is 40.3 percent . . . given present turnout”
(see Exhibit C).
To determine how the Cameron research might apply to North
Carolina, I identified a group of 17 intact counties in northeastern
North Carolina whose combined population equals a
congressional district. The subject area 1s nearly identical to one
in a redistricting proposal published by the Charlotte Observer
that reporter Jim Morrill and legislative staff member Dan Frey
worked together to compile (see Exhibit D).
(@
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AFFIDAVIT OF LEE MORTIMER, CONTINUED. ..
This 17-county area has a population of 553,068; a black
population of 44 percent; and an overall minority population of 45
percent. The area's BVAP is 40.6 percent.’ almost identical to the
40.3 percent of BVAP listed in the research. Results of the 1996
elections in the subject area were: Clinton. 57 percent (two-party
vote); U.S. House candidates (Clayton, Cashion, Etheridge,
Parrott), 59 percent; and Harvey Gantt, 50.9 percent.
VIII. 1ST DISTRICT SIX PERCENTAGE POINTS '"OVER-
CONCENTRATED"
If Gantt's 51-percent vote represents the core-level support
available to a non-incumbent black candidate facing a white
opponent, there would be a strong correlation between the
Cameron research and voting patterns in northeastern North
Carolina. In other words, Cameron's 40.3 percent BVAP closely
approximates the appropriate level of BVAP for providing
minority voters in northeastern North Carolina a 50-percent
probability — thus an "equal opportunity” — to elect their
Congressional candidate of choice.
As the incumbent. and based on her past performance in the 17-
county area where she was on a large percentage of the ballots,
Rep. Clayton. in my opinion. would likely exceed 51 percent of
the vote. However. in a scenario where a "generic" black
candidate has the same core-level support as Gantt, but may have
less white (and black) support than Clayton, I believe 40-percent
BV AP would position that candidate to be fully competitive with
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AFFIDAVIT OF LEE MORTIMER, CONTINUED. ..
a white opponent: (Scenario assumes participation to be 40
percent black and 60 percent white)
40% (black voters) x 90% (support for bluck candidate) = 36%
60% (white voters) x 25% (support for black candidate) = 15%
36% + 15% = 51% (minority electoral opportunity)
Thus, with 50 percent black population and 46.5 percent BVAP,
the redrawn 1st District is approximately six percentage points
"over-concentrated” beyond the point of "equal electoral
opportunity" for all voters and candidates.
IX. VOTING RIGHTS NOT A MANDATE FOR "'SAFE SEATS"
As I understand the Voting Rights Act, its purpose is not to
provide "safe minority seats" — but to assure that minority voters
have the same opportunity as other voters to participate in the
election process. As presently constituted, North Carolina's race-
based Ist District fails to provide the same opportunity for all
voters to elect their representatives of choice. For those reasons,
I am convinced the Ist Congressional District is a
misinterpretation and abuse of the Voting Rights Act and that it
violates the 14thAmendment to the U.S. Constitution.
"Over-concentration” and "assured victory" are even more
pronounced problems in the 12th District. By the state's estimate
in the redistricting plan. the new 12th District is composed of 66
percent former Harvey Gantt supporters. In my opinion. this rules
out any opportunity for meaningful participation by other voters
65
AFFIDAVIT OF LEE MORTIMER, CONTINUED. .. and candidates. Though these violations certainly apply. they are.
in my opinion. overshadowed by the 12th District's racial
classifications. racial assignments. and overall non-legitimacy as a
district.
In vivid contrast to the race-based Ist and 12th districts. a
legitimate "minority-opportunity "district has existed in both the
1992 and the 1997 redistricting plans. That district is the 4th
District in the Triangle area. In both the 1992 and 1997 plans.
the 4th District did not resort to bizarre shapes and showed no
indication that race was the predominant factor. Yet in both
plans. Harvey Gantt won a convincing 59 percent of the district's
vote. While it is impossible to draw two non-race-based black-
majority districts, the evidence shows it is possible to have at
least two "minority-opportunity"districts — one in the northeast
and one in the Triangle.
X. WHITE CROSS-OVER VOTING ENHANCES MINORITY
OPPORTUNITY
[t Gantt's 1996 vote is the measure, black candidates. helped by
white cross-over voting, have electoral opportunitiesin additional
areas of the state (see Exhibit E). The following examples show
the possibility for drawing non-race-based minority-opportunity
> Congressional districts that are geographically compact and
oy
maximize intact counties.
A
S
)
S Metrolina area — Gantt won 55 percent of the vote against
S Helms in Mecklenburg County. which has 93 percent of the
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AFFIDAVIT OF LEE MORTIMER, CONTINUED. ..
population for a Congressional district. With a respectable
showing in the remaining 7-percent population area outside of
Mecklenburg County, Gantt would have been solidly positioned
in a "Metrolina district.”
Triad area — The combined Guilford-Forsyth County vote was
51-49 percent for Helms. In a Guilford-Forsyth"Triad District.”
61.000 people would be removed to achieve population
equivalence. In either county, the outlying areas most likely to
be removed are predominately rural and semi-rural. Since those
type areas are more heavily populated with conservative voters.
their removal would likely have pulled Gantt even with. or
slightly ahead of. Helms in a "Triad District."
Southeastern area — The state's other high concentration of
racial minorities 1s found in the southeastern region. A
Congressional district anchored by Cumberland and Robeson
counties and extending along the South Carolina border would be
44 percent minority. Such a grouping would provide a second
predominately rural district and a strong electoral opportunity for
a minority candidate. For example, in seven southeastern
counties — Bladen, Brunswick. Columbus, Cumberland. Hoke.
Robeson, and Scotland — Gantt was favored by 53.7 percent of
voters over Helms.
The Gantt results in the state's major metropolitan arcas —
Metrolina, the Triad, and the Triangle—confirm the significant
level of white cross-over voting that occurs in urban areas. The
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AFFIDAVIT OF LEE MORTIMER, CONTINUED. ..
BVAP in these urban counties 1s generally under 25 percent,
which means whites were crossing over at rates of 40-50 percent
to vote for Gantt.
The relatively high levels of white cross-over voting in the urban
counties refute the state's claim that electoral opportunities for
black candidates can only be provided by over-concentrating
minorities into an artificial district extending across separate
metropolitanareas. The level of cross-over voting also suggests
that in urban areas of the South, the "point of equal opportunity
for minority voters to elect their candidate of choice” is
considerably lower than the 40.3-percent BVAP in the Cameron
research.
The southeastern border area contains perhaps the most diverse
group of voters in North Carolina. Non-blacks — including
Native Americans. Hispanics. and Asians — account for about
one-quarter of the area's 44-percent minority population. Despite
claims that black and Native American voters are not politically
cohesive, Gantt's 54-percent vote in this 7-county area shows that
a diverse coalition of minority voters, plus white cross-over
voters. can be sustained to provide strong electoral opportunities
for a minority candidate in a rural area of North Carolina.
XI. CONCLUSION
Three Congressional elections have now been held under an
unconstitutional redistricting plan. In drawing a remedial plan.
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AFFIDAVIT OF LEE MORTIMER, CONTINUED. ..
the General Assembly looked only to a previously invalidated
plan as a starting point and ignored other possible plans. In my
opinion, this shows the state is intending to perpetuate a racially
gerrymandered redistricting plan.
Elected officials face an inherent conflict of interest any time they
draw districts— for themselves or for other elected officials. This
has never been more evident than in the General Assembly's
repeated drawing of districts that classify and separate voters by
race. Fortunately, other alternatives exist.
For example, some states have minimized the partisan effects of
redistricting by turning over the task to non-partisan, independent
redistricting commissions. The courts themselves have resolved
disputes over redistricting by drawing the districts or by
appointing "special masters" to do the redistricting.
Though not currently authorized by statute for Congressional
elections, multimember districts and proportional voting methods
would be another means of assuring fair representation for racial
minorities. A proportional voting system would most likely put
an end to all forms of gerrymandering by removing the incentive
to manipulate district lines.
If allowed to stand. this redistricting plan. and the 12th District in
particular, could undermine the election process into the next
decade and century. Gerrymandering in this redistricting plan is
moving us toward a quasi-appointed Congress, whose members
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AFFIDAVIT OF LEE MORTIMER, CONTINUED. ..
receive their "appointments" from legislative redistricting
committees.
The "anything goes" philosophy, in which county and municipal
boundaries are utterly disregarded, could give rise to drawing
districts that serve only the self-interested ends of the people who
draw them. An essential step in restoring public confidence in the
election process is to restore integrity to the redistricting process.
/s/ Lee Mortimer
Affiant
State of North Carolina
County of Durham
Sworn to and subscribed before me this 26th day of January, 1998
/s/ Anita Robinson
Notary
(Official Seal)
Notary Public
My commission expires 10/28/2002
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AFFIDAVIT OF LEE MORTIMER, CONTINUED. ..
NOTES
1. "Democrats express redistricting reservations.”
Associated Press, Feb.25,1996.
2 "Legislators loath to split counties when redistricting.”
Associated Press, Dec. 29, 1996. Cover page of initial
Senate redistricting plan (February 1997) made several
references to priority for intact counties.
3. Source: U.S. Census Bureau
4. "Clayton to seek re-election,” News and Observer, Nov.
1.1997
5 This analysis of Presidential, U.S. Senate, and U.S.
House results 1s based on returns from the 10 intact
counties of the new 1st District as reported on the State
Board of Elections Internet site. Additionally. the
Board of Elections provided me 1996 precinct-level
results for the 10 divided counties assigned to the new
IstDistrict. Most precinct names correlated with
precincts listed in the state's redistricting plan. The
only county for which precincts were difficult to
correlate was Beaufort, which accounts for about four
percent of the district's population. Any discrepancy in
my reading of the figures would change the analysis by
no more than one to two percentage points.
6. Source: U.S. Census Bureau
71
AFFIDAVIT OF JOHN WEATHERLY (CD 34)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
Eastern Division
Civil Action No. 040-CV- 104-H2
MARTIN CROMARTIE, et al.
JAMES B. HUNT, JR., in his
capacity as governor, ef al.
AFFIDAVIT OF JOHN WEATHERLY
John Weatherly, being duly sworn. declares and says as
follows:
I am a citizen and resident of Cleveland County, North
Carolina, and I am now serving in the North Carolina House of
Representatives as the representative from the 48" House
District which includes Cleveland County. Previously I served
as a Representative in the 1989. 1993 and 1995 sessions.
Currently I am Chair of the House State Government and
Properties Committee and am a member of the Environmental
Committee, the Agricultural Committee. and the House
Appropriations Committee. During my service in the House of
Representatives, I have become increasingly concerned about
the need for reform in the electoral process and, because of my
interest in this issue, I served in the fall of 1996 as one of the
72
AFFIDAVIT OF JOHN WEATHERLY, CONTINUED. ..
fifteen members of the General Assembly's Election Law
Reform Committee.
During my service in the General Assembly. [ have
become aware of the extensive gerrymandering that has taken
place in the creation of districts for electing members of
Congress and of the General Assembly. The existence of this
gerrymandering is apparent from an examination of the maps
that show the redistricting and reapportionment plans that were
enacted during the 1991 Session of the General Assembly and
the redistricting plan that was enacted in March of 1997.
Because of the flagrant gerrymandering that has taken place. |
proposed a constitutional amendment that would place the
responsibility for congressional redistricting and legislative
reapportionment in a non-partisan commission. This
commission would draw, electoral districts in a manner that
disregarded race, political party and incumbency. and relied
instead on traditional redistricting principles, such as
Geographical compactness, contiguousness, political
subdivisions, and real communities of interest.
Early in its 1997 session, the General Assembly was
considering the preparation of a redistricting plan to replace the
plan enacted in 1992, which the Supreme Court had declared
unconstitutional in June 1996. As a means of preparing a
constitutional plan, I suggested that the General Assembly
created a redistricting commission along the lines of my
proposed constitutional amendment. In this connection, I
AFFIDAVIT OF JOHN WEATHERLY, CONTINUED. ..
introduced a bill that would have directed the creation of a
redistricting commission to prepare a congressional
redistricting plan for use in the 1998 elections. This bill, if
enacted. would have provided a means for drawing a race-
neutral and party-neutral redistricting plan that would replace
the plan which the Supreme Court had declared
unconstitutional in Shaw v. Hunt. This new plan would have
been submitted for a vote, up or down, in the General
Assembly. By use of the redistricting commission, the General
Assembly would have eliminated any taint or carry-over from
the redistricting plan that was ruled unconstitutional by the
Supreme Court.
Although I was not serving in the General Assembly in
1991-92 when the congressional redistricting plan was prepared
for use in the 1992 and subsequent elections, 1 readily
concluded that race had predominated in the drafting of that
plan - especially with respect to the First and Twelfth Districts.
Indeed. this was apparent even from the shape of the districts,
when considered in relation to concentrations of African-
American population in North Carolina. | am especially aware
of the racial gerrymandering of the Twelfth District in the 1992
plan because | reside in the adjacent Ninth congressional
district. whose shape was significantly affected by the racial
gerrymandering of the Twelfth District.
The appearance of the First and Twelfth Districts in the
current plan. which was enacted by the General Assembly in
74
AFFIDAVIT OF JOHN WEATHERLY, CONTINUED. ..
March of 1997. does not reveal the racial motive as readily as
did the appearance of the corresponding districts in the 1992
plan. In other words. the new districts are somewhat less
“bizarre.” However. as | confirmed by examining recently a
map of the current districts. race was still a predominant motive
in their creation. This is especially obvious to me with respect
to the current Twelfth District; a comparison of the boundaries
of the Twelfth District with the concentrations of the African-
American population in the six counties of which portions are
included in the Twelfth District makes evident to me that race
predominated in the drawing of that district. Not only the
redistricting plan itself. but the events that occurred during the
1997 session of the General Assembly lead me to conclude that
race predominated in determining the boundaries of the First
and Twelfth Districts. Basically, the premise for the current
plan was that two congressional districts should be created in
each of which an African-American would be elected to
Congress. Indeed. the premise was even more specific -
namely, that the election of the two current African-American
incumbents would be assured. Subordinate to this objective
was the re-election of other incumbents along party lines to
maintain the 6-6 party balance in the congressional delegation;
but it is clear to me that the indispensable part of the plan was
to assure the creation of two districts that would re-elect the
black incumbents.
From my knowledge of North Carolina and its politics,
including the politics of the General Assembly, | am convinced
75
AFFIDAVIT OF JOHN WEATHERLY, CONTINUED. ..
that the predominate motive - indeed. almost the only
conceivable motive - for linking together Mecklenburg County
with Guilford and Forsyth Counties in a single congressional
district was the racial motive of guaranteeing the election of an
African-American. Although am not as familiar with the area
encompassed in the current First District, I believe the same
conclusion applies to it. In each instance my conclusions are
based on statements made on or off the floor of the General
Assembly or in Committee, on the final results of the
redistricting process, and on my experience as a legislator.
Further declarant sayeth not.
/s/ John Weatherly
Subscribed and sworn to before me
this 22™ day of January, 1998.
/s/ Beverly Adams
Notary Public
My commission expires 1/24/2000
76
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77
AFFIDAVIT OF J. H. FROELICH, JR. (CD 34)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
RALEIGH DIVISION
Civil Action No. 4.96-CV-104
MARTIN CROMARTIE, et al.
Plaintiffs.
VS:
JAMES B. HUNT. JR.. in his official
capacity as Governor of the State of
North Carolina. et al.
Defendants.
N
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AFFIDAVIT OF J.H. FROELICH, JR.
J.H. Froelich. Jr., being duly sworn, declares and says:
I am a citizen and resident of High Point, North
Carolina which is in Guilford County. I have lived here all my
life; and I am currently in my sixties. I have been involved in
the import and export of furniture and materials intended for
use in making furniture. and | have also participatedin a variety
of other business activities. In addition, I have been active in
politics at the local and state level, and in 1972 managed
statewide the gubernatorial campaign of the Democratic
nominee, “Skipper” Bowles. | am a plaintiffin this action; and
I provided an aftidavitas a witness for the plaintiffs in the trial
of Shaw v. Hunt.
78
AFFIDAVIT OF J. H. FROELICH, JR., CONTINUED. ..
When the Congressional redistricting plan was enacted
in 1992, I believed that the plan was unconstitutional because
of the strange way in which the districts had been drawn.
There seemed to be no relation between the drafting of district
boundaries and the application of traditional race-neutral
redistricting principles. Because of the bizarre way in which
the Congressional districts had been drawn — sometimes with
precincts being split among two or more Congressionaldistricts
— 1t was hard for a voter to know in what district he had been
placed. Indeed, when I went to vote in 1992. I did not realize
that I was in the Twelfth District. After the 1992 plan was
declared unconstitutional, the General Assembly in 1996
produced a new plan. However, that plan represents little
improvement upon the earlier plan — at least, with respect to the
area of the state in which I live. Clearly race — just as for the
1992 plan — predominated in the drawing of the Twelfth
District, which bisects Guilford County. Apart from a racial
motive, I find it hard to believe that anyone in North Carolina
could justify putting Mecklenburg County in the same district
with any part of Guilford County. Indeed, all of Mecklenburg
County would be placed in a single district if traditional race-
neutral principles of redistricting were involved: likewise, all
of Guilford would be in the same district.
79
AFFIDAVIT OF J. H. FROELICH, JR., CONTINUED. ..
Further declarant sayeth not.
/s/ J.H. Froelich. Jr.
NORTH CAROLINA
GUILFORD COUNTY
Subscribed and sworn to before me
this 2nd day of February, 1998.
/s/ Linda L. Willard
Notary Public
My Commission expires: 11-5-00
80
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81
AFFIDAVIT OF R. O. EVERETT (CD 34)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
RALEIGH DIVISION
Civil Action No. 4.96-CV-104
MARTIN CROMARTIE, et al.,
Plaintiffs,
VS.
JAMES B. HUNT, JR.. in his official
capacity as Governor of the State of
North Carolina. ef al.
Defendants.
N
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AFFIDAVIT OF R.O. EVERETT
R.O. Everett. being duly sworn, declares and says as
follows:
; I am a citizen and resident of Salisbury, North Carolina.
: which is located in Rowan County; and I have resided here for
more than three decades. For many years I was the city
executive for Wachovia bank here in Rowan County. Over the
vears my wife and | have participated actively in politics in
Rowan County. A few years ago, I ran unsuccessfully to serve
in the North Carolina House of Representatives. I am one of
the Plaintiffs in this case because I am convinced that the
82
AFFIDAVIT OF R. O. EVERETT, CONTINUED. ..
present redistricting plan is racially gerrymandered and that this
is unhealthy for the electoral process in North Carolina.
Although I have lived in other parts of the State earlier
in my life, | am especially familiar with Rowan County and its
neighboring counties. Because of that familiarity, it was easy
for me to perceive that in the 1992 Congressional redistricting
plan the Twelfth District. which cut through Rowan County
had a shape which was predominately motivated by race. After
the original Twelfth District had been declared
unconstitutional, had hoped that in any new plan the districts
of the state would be drawn without regard to race.
Unfortunately, this did not occur. Under the present plan, the
Twelfth District is still racially gerrymandered — that is. its
shape is motivated predominately by race — and this has a
corresponding effect on the boundaries of the adjacent districts.
With specific reference to Rowan County, I am convinced that
had race-neutral principles been followed, such as
compactness, contiguousness.and respect for the boundaries of
political subdivisions. the district boundaries would have been
quite different. Indeed. Rowan County would probably not
have been included at all in the Twelfth District. In view of the
size and location of Mecklenburg County, it seems obvious to
me that no part of Rowan would have been placed in the same
district with Mecklenburg if race-neutral districts had been
drawn by the General Assembly.
AFFIDAVIT OF R. O. EVERETT, CONTINUED. ..
Further declarant sayeth not.
/s/ R.O. Everett
NORTH CAROLINA
ROWAN COUNTY
Subscribed and sworn to before me
this 30th day of January. 1998.
/s/ Jo Ann L. Foster
Notary Public
My Commission expires: 1-16-2002
84
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85
DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
Civil Action No. 4-96-CV-104-BO(3)
MARTIN CROMARTIE, THOMAS
CHANDLER MUSE. and GLENNES
DODGE WEEKS,
Plaintifts.
JAMES B. HUNT. JR.. in his official
capacity as Governor of the State of North
Carolina, et al..
)
)
)
)
)
)
Vv. )
)
)
)
)
)
Defendants. )
DEFENDANTS’ CROSS-MOTION
FOR SUMMARY JUDGMENT
Defendants. pursuant to Rule 56(b) of the Rules of Civil
Procedure, respectfully move the court to enter summary
judgment for them on all claims made by plaintiffs. In support
of this motion. defendants rely upon the following documents,
all of which have been filed contemporaneously with this
motion:
86
CROSS-MOTION FOR SUMMARY JUDGMENT, CONTINUED. ..
1, Defendants Brief In Opposition to Plaintiffs’
Motion for Summary Judgment and in Support of their Cross-
Motion for Summary Judgment.
2. The Affidavit of Gary O. Bartlett. Executive
Secretary-Director of the State Board of Elections.
The Affidavit of Senator Roy A. Cooper. III. (U
S)
4. The Affidavit of Representative W. Edwin
M*Mahan.
5 The Affidavit of Dr. David R. Goldfield.
6. The Affidavit of Dr. David W. Peterson.
7 The Affidavit of Dr. Alfred W. Stuart.
8. The Affidavit of Dr. Gerald R. Webster.
WHEREFORE, defends respectfully request the
Court (1) to enter summary judgment for them. (2) to deny
plaintiffs’ motion for summary judgment. (3) to dismiss this
action and (4) to allow them such other relief as may be just
and proper.
87
CROSS-MOTION FOR SUMMARY JUDGMENT, CONTINUED. ..
This the 2nd day of March, 1998.
MICHAEL F. EASLEY
ATTORNEY GENERAL
/s/ Edwin M. Speas, Jr.
Senior Deputy Attorney General
N.C. State Bar No. 4112
/s/ Tiare B. Smiley
Special Deputy Attorney General
N. C. State Bar No. 7119
/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]
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89
§97C-27R. OTHER MATERIAL CONCERNING THE PURPOSE
OF THE PLAN
Nearly 200 congressional redistricting plans have been
drawn by legislative staff, interest groups. and the public using
the North Carolina General Assembly ’s redistricting computers
since January 1, 1996. There were a few exploratory plans
drawn by the legislative staff in the fall of 1995 after the United
States Supreme Court overturned Georgia's congressional
redistricting plan. Some plans were never completed and some
are duplicates of others. Plans that were actually presented
during the legislative process as alternatives are discussed
below and most are also discussed in §97-27H:
1. Plans Publicly released by the House and/or Senate
(a) Congress-96-001: This plan was released by
Representative Richard Morgan to the House Rules Committee
in July. 1996. The plan was never voted on by the Committee. -
See €97C-27H and Attachment 97C-27R-1. The plan contained
a district from Charlotte to Robeson County similar to the
district contained in the plan offered by Senator Betsy
Cochrane as an amendment to 1997 Congressional Plan A and
to the plan eventually enacted. (See Attachment 97C-27R- 11
for the plan proposed by Senator Cochrane). Representative
Morgan's primary goal in releasing the plan at that time was to
establish that a redistricting plan could be drawn in time for the
1996 elections. That plan was never considered by the General
Assembly after the public hearing.
90
9 97C-27R., CONTINUED...
(b) 1997 Congressional Plan A: This was the first plan
released by Senator Cooper to the Senate Select Committee on
Redistricting on February 20. 1997. The plan was approved by
the Committee on March 19. 1997 as Senate Bill 433, but was
withheld from a vote on the Senate floor as negotiations
between the House and Senate continued on a compromise
plan. This plan is contained in 3 different forms in Attachment
97C-27R-2: as released on February 20; as re-released on
February 24 with a contingent zero-deviation plan; and as
released again on March 18 as Senate Bill 433.
(c) 1997 House Congressional Plan A.I: This was the
first plan released by Representative McMahan to the House
Committee on Congressional Redistricting. It was presented at
the February 25, 1997 meeting. of the committee. The plan
was never voted on by the committee. See Attachment 97C-
27R-3.
(d) 97 House Congress Plan G: This plan was
submitted to the House Committee on Congressional
Redistrictingon March 19, 1997. The Committee approved it
and had it introduced as a committee bill (House Bill 586). The
bill was sent back to Committee. (See Attachment 97C-27R-4).
(e) 97 HOUSE/SENATE PLAN: This plan represented
the plan agreed to by the House and the Senate. The plan was
approved by the House Committee on Congressional
Redistricting on March 25. 1997. The plan was amended on
91
1 97C-27R., CONTINUED...
the floor of the House by Rep. Ronnie Sutton. and the amended
version was sent to the Senate as 97 HOUSE/SENATE
PLAN A. See 997C-27H for a discussion of the Sutton
amendment. See Attachment 97C-27R-5 for this plan.
2. House Committee Amendments
(a) Blue Amendment: Representative Dan Blue
offered an amendment that was destined primarily to preserve
the 4th district essentially in its 1992 form instead of having it
divided between the 2nd and 4th district. The amendment was
rejected. See Attachment 97C-27R-6.
(b) Sutton amendment: Representative Ronnie Sutton
of Robeson County offered an amendment to shift a
predominantly Native American precinct in Robeson County
from District 8 back to District 7 and to "make up the
population difference” in Cumberland County. Representative
Sutton did not identify which precincts in Cumberland County
should be moved to account for this change. Counsel to the
Committee suggested that he make this change as a floor
amendment to the bill so that the appropriate precincts could be
identified and the population data recalculated on the computer.
For purposes of the proposed back-up plan containing zero
population deviation (97 HOUSE/SENATE PLAN 0), census
blocks within a precinct would also have to be identified and
moved and the population figures recalculated to ensure that
there was still zero population deviation in Districts 7 and 8.
92
9 97C-27R., CONTINUED. ..
Representative Sutton'samendment was defeated in committee.
(Note: Representative Sutton offered an amendment on the
floor the following day, complete with a statistical analysis.
See below).
-
3. House Floor Amendments
(a) Representative Sutton offered an amendment on
second reading of the bill, complete with statistical analysis. to
both the primary plan and the alternate zero deviation plan. His
amendment moved a predominantly Native American precinct
from District 8 to District 7. moved Fort Bragg from District 7
to District 8, and changed western Cumberland County and
western Fayetteville to offset the population difference in
District 7 created by the transfer of Fort Bragg. This
amendment passed 117-0. See Attachment 97C-27R-7. The
recorded vote is attached as Attachment 97C-28F-4H.
(b) Representative Mickey Michaux offered the
following three related amendments to House Bill 586 on
second reading of the bill:
(1) Fitch/Michaux Plan A (See Attachment
97C-27R-8)
(2) Fitch/Michaux Plan B (See Attachment
97C-27R-9)
97C-27R., CONTINUED...
(3) Fitch/Michaux Plan C (See Attachment
97C-27R-10)
Representative Michaux announced that the purpose of his
amendments was to maximize the minority vote by creating
more minority influence districts. See House floor debate,
Attachment 97C-28F-4F(1), pp. 9-10.
Each of these amendments contained a northeastern
majority-minority district (District 1) comparable to the
proposed District I in House Bill 5386. The percentage of
African-American population (total population) of District I in
all three Fitch/Michaux plans was 50.23%. (It 1s 50.27% in the
enacted plan). Each of the amendments also contained a new
District 5 running from Durham to Greensboro and a District
12 running from Charlotte to Winston-Salem. In Plan A,
District 3 runs from Granville County through Durham into
Greensboro. In Plans B and C, District 5 runs from Durham to
Gireensboro and then to High Point. The amendments also had
variations in District 7. In Plan B. Robeson County is in
District 8. In Plan C, Robeson County is in District 7.
The percentage of African American and Native American
population. based on 1990 census data. for Districts 1, 5, 7, and
12 in the Fitch/Michaux Plans were as follows. (Note: for
District 7. the first number is African American population
percentage: the second number is Native American population
94
9 97C-27R., CONTINUED. ..
percentage. For the other districts, the number 1s African
American population percentage):
District
District I District 5 District 7 12
Plan A: 50.23 33.88 29.62/8.61 37.44
Plan B: 50.23 34.41 32.17/1.39 37.66
Plan C: 50.23 34.41 30.02/8.55 37.66
All three amendments were voted on in the House and
deteated by the following margins: Plan A (90 to 27); Plan B
(90 to 26): Plan C (87 to 30). The recorded votes on these
amendments are attached as Attachment 97C-28F-4H.
Representative Michaux's amendments were rejected
because they did not preserve the partisan balance in House Bill
586 nor did they preserve the cores of the existing districts in
the Piedmont. Plan B would have placed two Democratic
incumbents in the same district: Congressman Mcintyre from
Robeson County and Congressman Hefner from Cabarrus
County. All three plans (A, B, and C) would have placed two
Republican incumbents together in District 6: Congressman
Burr and Congressman Coble.
[n addition, all three plans would seriously weaken the
ability of the African-American incumbent in District 12
(Congressman Watt) to win re-election. The African-American
\O
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ۤ97C-27R., CONTINUED. ..
percentage in District 12 is only 37.66 percent in Plans B and
C and 57.44 percent in Plan A --- approximately nine percent
lower than the African-American percentage of District 12 in
the enacted plan (46.67%).
The three Fitch/Michaux plans also reduce the percentage of
African Americans in Districts 2, 3, 4 and 8 as compared to the
enacted plan. as shown below:
Dist. 2 Dist. 3 Dist. 4 Dist. 8
Enacted 27.91 19.79 21.02 21
plan
Fitch/ 23.62 18.82 19.55 18.62
Michaux A
Fitch/ 23.71 16.77 18.93 20.90*
Michaux B
Fitch/ 23.71 16.77 18.93 23.06
Michaux C
*This plan (B) also includes a Native American
population of 8.64% in District 8.
4. Plans Offered in Senate Committee
Senator Betsy Cochrane offered an alternative plan.
Cochrane Congress (Attachment 97C-27R-11), at the March
19. 1997 meeting of the Senate Committee. This plan was
96
9 97C-27R., CONTINUED. ..
offered as an alternative to the plan ottered by Senator Cooper
(1997 Congressional Plan A). Senator Cochrane's plan was
rejected by the Committee. See the minutes from the Senate
Committee meeting for that day in Attachment 97C-28F-4D(3)
and Y97C-27N for extensive discussion on Senator Cochrane's
plan and why it was not accepted.
5. Plans Offered on Senate Floor
Senator Cochrane offered her plan again. See the discussion
above. The plan was defeated by a vote of 27 to 18. See
Attachment 97C-28F-4H for the recorded vote on the
amendment.
6. Plans Discussed in Negotiations
Senator Cooper and Representative McMahan were
involved in negotiations with each other for nearly three weeks
in an effort to develop a plan that both the House and the
Senate could agree to. These negotiations centered primarily
on the division of Wake County between the 2nd and 4th
districts.
Several proposed plans were exchanged during this time.
The plans constituted a series of offers and counteroffers that
gradually moved the Senate and House closer together. This
series of changes can best be understood in light of the original
plans released by both sides (1997Congressional Plan A in the
97
ۤ97C-27R., CONTINUED...
Senate and 1997 House Congressional Plan A.I in the House)
and how those plans came about.
In developing the Senate's initial plan as well as subsequent
plans. Senator Cooper consulted with members of the
congressional delegation and members of the Senate,
particularly Senator Frank Ballance. Senator Leslie Winner,
Senator Bill Martin, and Senator Marc Basnight. Senator
Ballance. an African-American and the Deputy President Pro
Tempore of the Senate, was consulted about placement: of
counties in the northeastern part of the state -- the area in which
he resides (Warren County)--including the location of the
boundaries of the new Ist district. Senator Winner, counsel for
the plaintiffs in the Gingles litigation in the early 1980s and a
resident of Charlotte, was consulted about the composition of
the 12th district, which includes much of Charlotte. Senator
Martin, an African-American representing, much of
Greensboro and Guilford County. was consulted both as to
statewide plan issues and the placement of parts of High Point
and Greensboro in the 12th district. Senator Basnight,
President Pro Tempore of the Senate. was consulted on the plan
generally and on the placement of counties in the northeast.
Senator Basnight also resides in the northeast (Dare County).
Senators Basnight and Ballance together represent most of
northeastern North Carolina.
The initial Senate plan was perceived by many Republicans
as treating incumbent Republican congressman Walter Jones
98
97C-27R., CONTINUED. ..
(3rd District) unfairly (see, for example. the comments of
Representative McMahan to the House Redistricting
Committee on February 25, 1997 at Attachment 97C-28F-
4E(2)). The House Republicans felt that the 3rd district was
perhaps their most critical district and that the Senate's
proposal. especially in the 3rd district. threatened the 6-6
partisan balance. Rep. McMahan responded by releasing a plan
(1997 House Congressional Plan A.1) that in many respects
resembled the Senate plan. However. Rep. McMahan's plan
also addressed the concerns about the 3rd district and created
other intentional differences between the two plans to use as
"bargaining chips” in negotiating primarily on three districts --
the 2nd. the 3rd, and the 4th. Representative McMahan also
consulted with numerous individuals, including African-
American and other members of the House and Democratic and
Republican members of the North Carolina congressional
delegation.
Although the boundaries of the 1st District were affected by
changes in the 2nd, 3rd, and 4th districts. these changes did not
significantly affect the percentage of African-Americans in the
Ist District. This percentage fluctuated about two-tenths of one
percent as a result of this series of changes. The enacted 1st
district is similar to the 1st district that was originallv proposed
by Senator Cooper after consultation with Senators Ballance
and Basnight. As enacted it includes moreof the territory of the
existing Ist district than the original House plan, thus keeping
more of Congresswoman Clayton's current constituency intact
f
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97C-27R., CONTINUED. ..
in the district. At the same time, the counties in the
coastal/Tidewater region (Chowan, Pasquotank, Perquimans,
Currituck. and Tyrrell) are able to remain together with the
coastal counties with whom they share economic and other
interests.
Differences between the House and Senate plans in the 12th
district were resolved quickly. The House agreed to include
Winston-Salem in the 12th district in one of its first counter-
offers to the Senate, recognizing that it was the only major city
in the Triad area not included in the urban-based 12th district.
After the 3rd district and 12th district were resolved, the
negotiations focused on the dividing line in Wake County
between the 2nd and 4th districts. TheSenate considered that
many of the House plans for the 2nd district were not consistent
with the goal of keeping a partisan balance and the House felt
that the 2nd district in the Senate plans did not reflect the
partisan makeup of the prior 2nd district. This issue was the
last to be resolved.
7. Plans Presented at Public Hearing
Several plans were presented at the public hearings. These
plans are contained as exhibits to the public hearing transcripts
and are included in Attachments 97C-28F-3A and -3B. Of
these plans. it is believed that only three were ever introduced
as bills or offered as amendments: the plan presented by
100
9 97C-27R., CONTINUED. ..
Senator Cochrane (offered as an amendment to the first Senate
plan and to the plan that was eventually enacted); a plan
introduced by Representative Steve Wood (House Bill 599);
and a plan introduced by Representative Robert Grady (House
Bill 585). See Attachment 97C-27R-11. Neither
Representative Grady nor Representative Wood offered his
plan as an amendment to House Bill 586.
8. Public Access and Other Plans
The legislature provides access to the public so that any
member of the public may draw a redistricting plan. The
legislature also provides a qualified staff person to assist
members of the public in using the public access redistricting
computer. Numerous plans have been drawn by members of
the public and interest groups using the public access computer.
Attachment 97C-27R-12 contains a list of all congressional
plans drawn by legislative staff, the public and others since
January 1. 1996. The legislative staff has reviewed this list
and. after eliminating plans that were duplicates, has produced
summary reports on all staff plans and public access plans.
including some plans for which the districts were not
completed or which were attempts to draw only certain
districts. A map is also included with the reports. The reports
provide summary information on population, voting age
population. registration, and elections of the districts. This
information is included in Attachment 97C-27R-12.
DB: NORTH CAROLINA District Summary
Total Populations, All Ages
Plan: 97 HOUSE/SENATE PLAN A
Plan type: CONGRESSIONAL WITH 97 HOME SEATS
Time:
Date: 3/26/97
10:37 a.m.
Page: 1
District Total Total Total Total
Name Total Pop. White Black Am. Ind. Asian/PI Total Other
District | 552.101 268.458 277.568 3.461 1,238 1.440
100.00% | 48.62% 50.27% 0.63% 0.22% 0.26%
District 2 582.152 388.234 154.108 2.267 4.183 3.363
100.00% | 70.31% 27.91% 0.41% 0.76% 0.61%
District 3 552,622 429,481 109,358 2.131 5,625 6.027
100.00% | 77.72% 19.79% 0.39% 1.02% 1.09%
District4 | 551,842 421,224 116,006 1,454 10,770 2.391
100.00% | 76.33% 21.02% 0.26% 1.95% 0.43%
District 5 | 552,084 471,868 75.177 1,045 2,381 1,613
100.00% | 85.47% 13.62% 0.19% 0.43% 0.29%
8T
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District 6 * | 552.171 493,140 52,248 2.039 3279 1,463
100.00% | 89.31% 9.46% 0.37% 0.59% 0.26%
District 7 | 552,382 371,545 133,985 40,845 2.191 3,216
100.00% | 67.26% 24.26% 7.39% 0.51% 0.58%
District 8 553,143 373,569 153,396 14,294 5,541 6,343
100.00% | 67.54% 27.73% 2.58% 1.00% 1.15%
District 9 552.615 481.834 61.443 1.317 6,408 1,413
100.00% | 87.19% 11.12% 0.27% 1.16% 0.26%
District 10 | 553.33 5)2.2]3 36,123 933 2,482 1,583
100.00% | 92.57% 6.53% 0.17% 0.45% 0.29%
District 11 | 552,089 512.127 29.276 7,888 1,838 960
100.00% | 92.76% 5.30% 1.43% 0.33% 0.17%
District 12 | 552,043 284.799 257,644 2,282 5,630 1,689
100.00% | 51.59% 46.67% 0.41% 1.02% 0.31%
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0.028.637
100.00%
5.008.492
75.56%
80,156
1.21%
52,166
0.79%
31.501
0.48%
Total 1,456.329
21.97%
DB: NORTH CAROLINA Date: 3/26/97
Time: 10:37 a.m.
District Summary
Voting Age Populations
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Plan: 97 HOUSE/SENATE PLAN A Page: 1
Plan type: CONGRESSIONAL WITH 97 HOME SEATS
District Total Vot. | Vot. Age | Vot. Age | Vot. Age Vot. Age Vot. Age &
Name Age White Black Am. Ind. Asian/PI Other
District 1 403.065 211.273 187.573 2,450 872 035
100.00% | 52.42% 46.54% 0.61% 0.22% 0.24%
District 2 | 419,099 303.740 108,234 1,649 3.169 2,307
100.00% | 72.47% 25.83% 0.39% 0.76% 0.55%
District 3 417.769 330.971 76.672 1,057 4.012 4.457
100.00% | 79.22% 18.35% 0.40% 0.96% 1.07%
District 4 | 427.266 332.013 84.535 1.118 7.927 1.673
100.00% | 77.71% 19.79% 0.26% 1.86% 0.39%
District 5 | 428,181 370,222 54.468 774 1,679 1.039
100.00% | 86.46% 12.72% 0.18% 0.39% 0.24%
District 6 | 426,321 384,226 37.317 1,472 2,263 1,044
100.00% | 90.13% 8.75% 0.35% 0.53% 0.24%
District 7 | 408.299 287,254 90,009 26,816 2,067 2,153
100.00% | 70.35% 22.04% 6.57% 0.51% 0.53%
District 8 | 402.666 283,487 101,961 9,096 3,909 4,213
100.00% | 70.40% 25.32% 2.26% 0.97% 1.05%
District 9 | 419,559 371,456 41,670 1,110 4,358 966
100.00% | 88.53% 9.93% 0.26% 1.04% 0.23%
District 10 | 425,367 396.936 23,136 696 1,499 1,102
100.00% | 93.32% 591% 0.16% 0.35% 0.26%
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District 11 | 430.111 402.639 20.455 5.159 1,257 601
100.00% | 93.61% 4.76% 1.20% 0.29% 0.14%
District 12 | 414,784 228.346 179,846 1,671 3,812 1.109
100.00% | 55.05% 43.36% 0.40% 0.92% 0.27%
Total 5,022,487 13,902,563 | 1,007.876 | 53.668 36.824 21,619
100.00% | 77.70% 20.07% 1.07% 0.73% 0.43%
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DB: NORTH CAROLINA District Summary Date: 3/26/97
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Registration Time: 10:37 a.m.
Plan: 97 HOUSE/SENATE PLAN A Page: 1
Plan type: CONGRESSIONAL WITH 97 HOME SEATS
District White Black
Name Total Reg. Reg. Reg. Other Reg. | Dem. Reg. Repub. Reg.
District 1 271,673 148,208 121,958 | 1,491 235,336 31,393
100.00% | 54.55% 44.89% | 0.55% 86.62% 11.56%
District 2 | 262,713 197,138 64,603 972 188,416 63,567
100.00% | 75.04% 24.59% | 0.37% 71.72% 24.20%
District 3 213,448 177,975 34,801 688 148,801 54,152
100.00% | 83.38% 16.30% | 0.32% 69.71% 25.37%
District4 | 315,782 255,728 55,959 4,095 200,635 86,394
100.00% | 80.98% 17.72% | 1.30% 63.54% 27.36%
District 5 295.332 261,355 33,380 | 597 172,461 105,168
100.00% | 88.50% 11.30% | 0.20% 58.40% 35.61%
District 6 | 290,562 266.904 22.935 720 143,304 127.208
100.00% | 91.86% 7.89% 0.25% 49.32% 43.81%
District 7 | 273,584 193,392 61,670 18.322 200,676 63.969
100.00% | 70.76% 22.54% | 6.70% 73.35% 23.38%
District 8 | 233,898 170,879 58,907 14,112 160,694 61,417
100.00% | 73.06% 25.18% | 1.76% 68.70% 26.26%
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District 9 295.719 267.583 27.125 1,011 153,291 120.359
100.00% | 90.49% 9.17% 0.34% 51.84% 40.70%
District 10 | 300,037 283,994 15,676 365 139,665 140,415
100.00% | 94.65% 5.22% 0.12% 46.55% 46.80%
District 11 | 319,610 304,158 13,108 2,344 188,349 111,979
100.00% | 95.17% 4.10% 0.73% 58.93% 35.04%
District 12 1.277.525 150,264 126,488 | 773 197,783 65,708
100.00% | 54.14% 45.58% | 0.28% 71.27% 23.68%
Total 3.349.883 [2.677.778 | 636.610 | 35,496 2.129.411 1,031,819
100.00% | 79.94% 19.00% | 1.06% 63.57% 30.80%
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DB: NORTH CAROLINA District Summary
Elections
Plan: 97 HOUSE/SENATE PLAN A
Plan type: CONGRESSIONAL WITH 97 HOME SEATS
Date: 3/26/97
Time: 10:37 a.m.
Page: |
District Senate Senate Lt. Gov. Lt. Gov. Court
Name Gantt Helms Rand Gardner Lewis Court Smith
District 1 84,590 74,188 97.349 60,092 101,516 44.207
53.28% | 46.72% 61.83% 38.17% 69.66% 30.34%
District 2 77.449 87,350 82,802 79,483 80.919 67,993
47.00% | 53.00% 51.02% 48.98% 54.34% 45.66%
District 3 53.362 75,119 62,499 70,906 65,828 57.263
41.53% | 58.47% 46.85% 53.15% 53.48% 46.52%
District 4 116,953 | 81,994 104,429 91,266 91,593 83.439
58.79% [41.21% 53.36% 46.64% 52.33% 47.67%
District 5 71,185 110,556 88.395 104,989 82.168 94.441
30.17% | 60.83% 45.71% 54.29% 46.53% 53.47%
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District 6 65.044 109.545 73.141 104.528 63,286 103,287
37.47% 62.53% 41.17% 58.83% 37.99% 62.01%
District 7 75.154 80.562 91.897 68.676 87.320 61.441
48.26% | 51.74% 57.23% 42.77% 58.70% 41.30%
District 8 64,574 71.664 76,22] 61,265 69,792 56.442
47.40% | 52.60% 55.44% 44.56% 55.29% 44.71%
District 9 | 79,462 98.104 72,891 105.102 60,368 97.577
44.75% | 55.25% 40.95% 59.05% 38.22% 61.78%
District 10 | 69.023 115,669 77,694 116,377 73,264 113,144
37.37% (62.63% 40.03% 59.97% 39.30% 60.70%
District 11 | 86,212 101,511 94,396 105,889 91,924 96,040
45.93% | 54.07% 47.13% 52.87% 48.91% 51.09%
District 12 | 107,333 | 54,101 93,441 57,084 85,103 53.177
66.49% | 33.51% 62.08% 37.92% 61.54% 38.46%
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Total
950.941
47.28%
1,060,363
52.72%
1,015,155
49.74%
1,025,657
50.26%
953,081
50.65%
928,451
49.35%
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DB: NORTH CAROLINA District Summary Date: 2/20/97
Total Populations, All Ages Time: 10:07 a.m.
Plan: 1992 CONGRESSIONAL BASE PLAN #10 Page: 1
Plan type: Congressional Base Plan
District Total Total Total Am. Total
Name Total Pop. White Black Ind. Asian/Pl | Total Other
District | 552.386 229.829 316,290 3.424 1,146 1,698
100.00% 41.61% 57.26% 0.62% 0.21% 0.31%
District 2 | 552,386 421,083 121.212 3,154 4,077 2.860
100.00% 76.23% 21.94% 0.57% 0.74% 0.52%
District 3 | 552,387 423,398 118,640 2,436 4,044 3,869
100.00% 76.65% 21.48% 0.44% 0.73% 0.70%
District 4 | 552,387 426,361 111,168 1,548 10,602 2,714
100.00% 77.19% 20.13% 0.28% 1.92% 0.49%
District 5 | 552,386 463,183 83,824 1,083 2,448 1,848
100.00% 83.85% 15.17% 0.20% 0.44% 0.33%
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District 6 | 552,386 504,465 41,329 1,973 3,489 1,129
100.00% 91.32% 7.48% 0.36% 0.63% 0.20%
District 7 | 552.386 394,855 103,428 40,166 5.835 8.102
100.00% 71.48% 18.72% 7.27% 1.06% 1.47%
District 8 552.387 402.406 128.417 13,789 4.232 3,543
100.00% 72.85% 23.25% 2.50% 0.77% 0.64%
District 9 352.387 492.424 49.308 1.729 7,373 1.533
100.00% 89.14% 8.93% 0.31% 1.33% 0.28%
District 10 | 552,386 517,542 30.155 942 2,238 1.510
100.00% 93.69% 5.46% 0.17% 0.41% 0.27%
District 11 | 552,387 502,058 39,767 7,835 1,791 936
100.00% 90.89% 7.20% 1.42% 0.32% 0.17%
District 12 | 552.386 230,888 312,791 2,077 4,891 1,739
100.00% 41.80% 56.63% 0.38% 0.89% 0.31%
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Total 0,628,637 | 5,008,492 [1,456,329 | 80,156 52,1606 31.501
100.00% 75.56% 21.97% 1.21% 0.79% 0.48%
DB: NORTH CAROLINA District Summary Date: 2/20/97
Voting Age Population Time: 10:07 a.m.
Plan: 1992 CONGRESSIONAL BASE PLAN #10 Page: 1
Plan type: Congressional Base Plan
District Total Vot. | Vot. Age | Vot. Age | Vot. Age | Vot. Age Vot. Age
Name Age White Black Am. Ind. Asian/Pl Other
District 1 399.969 181,933 213.602 2,428 844 1.110
100.00% | 45.49% 53.40% 0.61% 0.21% 0.28%
District 2 | 420.087 328,676 84.311 2,173 3.074 1,963
100.00% | 78.24% 20.07% 0.52% 0.73% 0.47%
District 3 | 413,263 324,808 81,170 1.755 2.922 2,608
0.63%
100.00% | 78.60% 19.64% 0.42% 0.71%
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District 4 | 428.984 336.850 81,210 1,239 7.782 1.903
100.00% | 78.52% 18.93% 0.29% 1.81% 0.44%
District 5 | 428,782 364,886 60,204 822 1,650 1,221
100.00% | 85.10% 14.04% 0.19% 0.38% 0.28%
District 6 | 428,096 393,271 30,188 1,433 2,407 798
100.00% | 91.87% 7.05% 0.33% 0.56% 0.19%
District 7 | 414,413 306,754 71,071 26,489 4,201 5,898
100.00% | 74.02% 17.15% 6.39% 1.01% 1.42%
District 8 | 403,678 305,366 84,386 8.699 2,956 2.27]
100.00% | 75.65% 20.90% 2.15% 0.73% 0.56%
District 9 | 421,615 380,364 33,849 1.275 5,059 1,069
100.00% | 90.22% 8.03% 0.30% 1.20% 0.25%
District 10 | 421.456 397.476 20,837 700 1,409 1,036
100.00% | 94.31% 4.94% 0.17% 0.33% 0.25%
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District 11 | 430,457 396.064 27.438 5,126 1.237 592
100.00% | 92.01% 6.37% 1.19% 0.29% 0.14%
District 12 | 411,687 186,115 219,610 1.329 3,283 1.150
100.00% [45.21% 53.34% 0.37% 0.80% 0.28%
Total 5,022,487 | 3,902,563 | 1,007,876 | 53,668 36,824 21,619
100.00% | 77.70% 20.07% 1.07% 0.73% 0.43%
C
DB: NORTH CAROLINA District Summary Date: 2/20/97
Registration Time: 10:07 a.m.
Plan: 1992 CONGRESSIONAL BASE PLAN #10 Page: 1
Plan type: Congressional Base Plan
District Dem. Repub.
Name Total Reg. | White Reg. | Black Reg. | Other Reg. Reg. Reg.
District 1 270.229 132.323 136.536 1,296 235,445 29,509
100.00% | 48.97% 50.53% 0.48% 87.13% 10.92%
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District 2 270,061 219,727 48,153 2,196 190,564 66,366
100.00% | 81.36% 17.83% 0.81% 70.56% 24.57%
District 3 248,318 201,699 45,684 055 173,132 64,771
100.00% | 81.23% 18.40% 0.38% 69.72% 26.08%
District 4 | 306,226 250,780 53.212 2,238 191,876 88,762
100.00% | 81.89% 17.38% 0.73% 62.66% 28.99%
District 5 293.437 255.458 37.427 550 178.786 97.316
100.00% | 87.06% 12.75% 0.19% 60.93% 33.16%
District 6 | 292,842 273.216 18,907 726 145,337 128.133
100.00% | 93.30% 6.46% 0.25% 49.63% 43.76%
District 7 | 218,613 162,148 38,413 18,104 154,517 55,296
100.00% | 74.17% 17.57% 8.28% 70.68% 25.29%
District 8 | 254,082 197,961 52,140 3,973 166,645 74,262
100.00% | 77.91% 20.52% 1.56% 65.59% 29.23%
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District 9 296.124 270,843 24,125 1,154 148,223 124.786
100.00% | 91.46% 8.15% 0.39% 50.05% 42.14%
District 10 | 297,917 283,928 13,611 398 135,660 142,775
100.00% | 95.30% 4.57% 0.13% 45.54% 47.92%
District 11 | 318,958 299.765 16,847 2,338 192,259 107,923
100.00% | 93.98% 5.28% 0.73% 60.28% 33.84%
District 12 | 283.076 129.930 13E355 1.568 216.967 51.900
100.00% | 45.90% 53.54% 0.55% 76.65% 18.33%
Total 3,349.883 | 2.677.778 | 636.610 35.490 2.129411 | 1.031.819
100.00% | 79.94% 19.00% 1.06% 63.57% 30.80%
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119
ATTACHMENT 97C-28F-4F (1), STATEMENT OF
REPRESENTATIVE EDWIN MCMAHAN
HOUSE CONGRESSIONAL REDISTRICTING
COMMITTEE DISCUSSION HOUSE FLOOR 3-26-97
Speaker Brubaker: For what purpose does the
Gentleman from Moore arise.
Representative Morgan: Mr. Speaker, House Bill 586
- short title Congressional Redistricting 2 is placed on today's
calendar.
Speaker Brubaker: Clerk will read.
Clerk: House Congressional Redistricting, Committee
- House Committee Substitute for House Bill 586 - A bill to be
entitled AN ACT TO DIVIDE NORTH CAROLINA INTO
TWELVE CONGRESSIONAL DISTRICTS.
Speaker Brubaker: The Chair recognizes the
Gentleman from Mecklenburg to explain the bill.
Representative McMahan: Mr. Speaker - Members
of the House -
Eight weeks ago today I was appointed by Speaker
Brubaker to chair the Congressional Redistricting Committee.
At the time, I really didn't know what | was getting into, but
today I must wonder what I did to the Speaker to deserve this
punishment.
120
ATTACHMENT 97C-28F-4F(1), CONTINUED. ..
Seriously, I first want to thank the 25 Members of our
Committee for their input and support. The Committee
Substitute before you has received a favorable report from our
Committee and does include the Plan agreed upon by the
Senate Congressional Committee. So this Plan has been
negotiated between both sides for the past eight weeks. It is not
a perfect Plan, but we have tried very hard to agree upon a Plan
that 1s based on geographic compactness, racial fairness,
population that is homogeneously compatible, incumbency
friendly, and would divide the fewest number of counties and
precincts as possible. The Current Plan divides 45 Counties
and 80 precincts - new Plan divides 22 Counties and only 2
Precincts.
[ want to point out to each member that this Job has
been made doubly hard because we received an ultimatum in
1992 to have a second Majority/Minority District, but last year
our 12th District, as you know, was ruled unconstitutional. So
the point [ want to make is that we have tried to agree on a Plan
that will be approved by the Justice Department and also be
found constitutional.
As | said earlier, we don't have a perfect Plan, but I
want you to compare it closely to our Current Plan that [ have
placed on your desk.
121
ATTACHMENT 97C-28F-4F(1), CONTINUED. ..
Starting in the West, please look at District 9. 10. 11
and see that we no longer divide Buncumbe, Henderson. Polk,
McDowell. and Rutherford County.
The current Plan also has parts of District 5 extending
into Burke. Caldwell and Wilkes County - our new Plan no
longer splits those counties.
We also have now Cleveland and Gaston together in
District 9 and not divided as in the Current Plan.
As you look at 12, we no longer extend from Gastonia
to Durham - now only extends from Charlotte to Greensboro.
We believe this District will now stand a Court test for the
following reasons:
l. Not a Majority/Minority District now so shape
does not create that - that was the basis the Court used to say
this was unconstitutional - not an argument now.
2. Population in 12 has homogeneous interest -
comprised of many citizens living in an urban setting.
3. Drawn to protect the Democratic incumbent.
All three factors are recognized as legitimate factors for
drawing Congressional District Plans.
122
ATTACHMENT 97C-28F-4F(1), CONTINUED. ..
Not a great deal of change has occurred in District 8
except now we don't divide Moore County.
District 6 is also very similar - except it includes Moore
County.
Moving East, a great deal of change and certainly
improvement has occurred due to realigning District 1 - old
map has District 1 really scattered over the entire Eastern North
Carolina. Now we have a considerably more compact District
1 that still has over 50% of a minority population.
With the changes in District 1, we are now able to keep
Columbus, Brunswick, New Hanover, Pender, Duplin and
Onslow Counties together, and all in District 7 except Onslow.
which is in District 3.
District 3 also more compact because it does not now
come from the coast all the way into Sampson and Duplin
County.
Now to the Triangle where we have caused the most
controversy. If you look at the Current Map, you see how
District 2 wraps around Wake County on the north and takes
part of Durham County - now that District 12 from Charlotte no
longer extends into Durham County, it certainly makes more
sense to put Durham back together and combine it with Orange
County and Chatham County -- counties already in District 4 -
ATTACHMENT 97C-28F-4F(1), CONTINUED. ..
than to either put it entirely in District 2 or extend District 1
down from N/E to pick up Durham County. When we pick up
Durham County. it obviously causes us to divide Wake County,
and the logical division in my opinion is to include the
Research Triangle and Western Wake County in with Durham
and Chapel Hill. and Eastern Wake County moves into District
2. This also makes more sense to me than the original Senate
Plan that divides Wake on a more East/West line with North
Wake County going into District 4 - and South Wake County,
including Cary. moving into District 2. This seems to make
sense not only for geographic compactness but also the makeup
of the population certainly appears more homogeneous with the
Triangle and 3 major Universities together. I regret that this
has not made some of my good friends from Wake County
happy. but I would like to point out that the other major
counties, Guilford. Forsyth, and Mecklenburg, are all divided
and represented by 2 Congressman and that is not all bad.
Major metropolitan areas have a lot of needs unique to their
area and having 2 Congressman working together for your
county can be very positive.
So. to close. I ask each of you to look at what we have
done as to a total Plan for our State - again, taking into
consideration the directives we have from both the Justice
Department. the Court, the incumbency issue and all the other
factors. Please keep in mind all the many other factors we have
had pulling on us in doing this job. Those of us involved have
done our dead level best to agree on a Plan that both sides of
124
ATTACHMENT 97C-28F-4F(1), CONTINUED. ..
the aisle in each Chamber can support. Our alternative after
next Tuesday will be to turn this matter over to the three judge
panel to do our jobs. | am hopeful that we can forget the
partisanship we may have on this issue and let's do this job that
the Constitution directs us to do and not have to ask the Court
to help us. I really don't think any of us want to send that kind
of message to the citizens across North Carolina.
Please note that the bill also provides a back up plan
that goes to 0% population variance if the Court should rule the
Plan unconstitutional because of the very small variance we
have between Districts. It will then divide 12 precincts in lieu
of 2 to meet this requirement. Again, this is only in the event
we need to go to 0% population, which most of us do not
believe we will need to do.
Mr. Speaker, Representative Sutton will offer an
Amendment that makes a slight change in Robeson County that
has been agreed to by all parties. It had been agreed to earlier,
but somehow got changed in the final Plan approved in
Committee yesterday, and I apologize for that.
[ understand that other Amendments will be offered and
even though I want each Member offering an Amendment to
know that I respect their reason for doing it. [ must ask my
fellow Members to please keep the Plan in tact. If one change
is made, other than Representative Sutton. we will begin to
unravel weeks of intense negotiations and agreements that have
125
ATTACHMENT 97C-28F-4F(1), CONTINUED. ..
happened in small steps along the way. Please understand that
| can appreciate the reason for the Amendments being offered,
but I must ask both sides to please defeat them to protect the
integrity of the overall Plan so that we can get it approved in
both bodies.
Thank you.
126
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127
ATTACHMENT 97C-28F-4F(2), STATEMENT OF SENATOR
Roy COOPER
VERBATIM TRANSCRIPT OF FLOOR DEBATE ON
HB 586 (COMMITTEE SUBSTITUTE)
CONGRESSIONAL REDISTRICTING
SENATE CHAMBER
THURSDAY, MARCH 27, 1997
Reading Clerk:
The Committee Substitute for HB 586, A BILL TO BE
ENTITLED AN ACT TO DIVIDE NORTH CAROLINA
INTO TWELVE CONGRESSIONALDISTRICTS, referred to
the Select Committee on Redistricting.
Senator Cooper: Mr. President.
President: The members will take their seats, the Senate
will come to order. I believe you all might want to hear about
this.
Senator Cooper: Mr. President.
President: Senator Cooper
Senator Cooper: To make an announcement.
President: = The Senator may make his announcement.
128
ATTACHMENT 97C-28F-4F (2), CONTINUED. ..
Senator Cooper: Mr. President, the President Pro Tem
will, hopefully before he walks out the door or maybe the Rules
Chairman will, let us recess for fifteen (15) minutes to hold the
Select Committee on Congressional Redistricting. It will be
held in Room 1124, would ask you to please take your bill and
your maps that are currently on your desks, take it down to the
committee room with you. We don't have but a few extra
copies and we would ask you to take it with you to the
committee and then bring it back with you up to the floor so
that we won't have to have additional copies made. We will do
that right now as soon as you call a recess, Mr. President.
RECESS
President: Senator Cooper is recognized.
Senator Cooper: Mr. President, would like to sent forth
a committee report from the Select Committee on
Congressional Redistricting.
President: =~ The Senator may send forth his report. The
clerk will read.
Reading Clerk: Senator Cooper, for the Redistricting
Committee.
Committee Substitute for HB 586, A BILL TO BE ENTITLED
AN ACT TO DIVIDE NORTH CAROLINA INTO TWELVE
129
ATTACHMENT 97C-28F-4F(2), CONTINUED. ..
CONGRESSIONAL DISTRICTS. The committee
recommends the bill do pass.
Senator Cooper: Mr. President.
President: Senator Cooper is recognized for a motion.
Senator Cooper: Mr. President, I move that the rules be
suspended to the end that the House Bill that was just read in
be placed on the floor for immediate consideration.
President: ~~ You have heard the motion. Any discussion. If
not, all in favor say “aye” opposed say “no.” The Chair rules
that's two-thirds (2/3). The clerk will read.
Reading Clerk: H.B. 586. A BILL TO BE ENTITLED
AN ACT TO DIVIDE NORTH CAROLINA INTO TWELVE |
CONGRESSIONAL DISTRICTS, reported favorably.
President: Senator Cooper is recognized to explain the bill.
Senator Cooper: Thank you, Mr. President. members of
the Senate. Today we have a congressional redistricting plan
that splits forty-six (46) counties, that has six (6) counties
which have three members of Congress. and which splits over
eight (80) precincts. The plan we have today has some social
merit. As a result of this plan, for the first time in many, many
years, we have two minority members of Congress as a result
ATTACHMENT 97C-28F-4F(2), CONTINUED. ..
of the current plan. However, we have a plan that is a
geographic mess. [ have, for your viewing pleasure if you want
to call it that, had placed on your desks a copy of the current
map so that you can see how difficult it is for people to know
in which Congressional district they reside. Last year. the
United States Supreme Court ordered the Legislature to redraw
the map as a result of the 12th Congressional District being
declared unconstitutional. Now there are arguments for and
against this decision. In fact, the Court found it close. It was
a 5-4 decision and one of those Justices sort of wavered back
and forth - Justice O'Connor. But the result was that the 12th
District was held unconstitutional by a 5-4 decision and we
were ordered by April 1 to come up with a new map. When
this process began, we had a House controlled by the
Republican Party and a Senate controlled by the Democratic
Party and people were saying that it couldn't be done. that we
could not reach an agreement. In fact, other states which had
been ordered by the Court to redraw their plans under similar
circumstances. other states have been unable to agree on a plan.
I want to commend all of those who have been involved in this
process because we have agreed on a plan - a plan that 1s fair
and workable. You have the plan on your desk. it is entitled
“97 House/Senate Plan A.” This plan reduces the number of
counties that are split from forty-five (45) to twenty-two (22).
There are now only 22 counties split under this plan. It reduces
the number of precincts split from over eighty (80) to two (2)
and those two precincts have special circumstances with
satellite annexations, etc. and are split under most other plans
151
ATTACHMENT 97C-28F-4F(2), CONTINUED. ..
as well. You have a plan which provides for geographic
compactness. provides for consideration of community of
interest. and provides for fair partisan balance. I think that all
of the congressional districts would be competitive. However.
it 1s likely that. if political fortunes remain the same, that we
would end up with a plan that would elect six Democrats and
six Republicans. We said from the beginning in the Senate that
in 1996 the people made a decision to elect six members of
Congress from the Democratic Party and six members of
Congress from the Republican Party and we should not use
court-ordered redistricting to alter that result. Therefore, we've
come up with the plan that you see before you. In considering
the plan, we looked at community of interest, looking at
keeping precincts whole, at keeping counties whole as much as
possible. We looked at making sure that no counties had more
than two members of Congress representing the county. We
looked at racial fairness. Let me tell you a little bit about the
Ist and the 12th Districts because the unconstitutionality of the
12th District 1s the reason why we are here. You have the
statistics on your desk. but the Ist District is majority minority,
total population 50.27%.
However. let me emphasize that race was not the
predominate factor in drawing the 1st Congressional District.
We have a district that has ten whole counties and ten split
counties. It's a district which respects the rural agrarian nature
of the northeast. It is a district which, I believe, that a minority
member of Congress or even a minority challenger would have
ATTACHMENT 97C-28F-4F(2), CONTINUED. ..
an excellent chance to be re-elected. but I believe the Ist
District not only is constitutional. but also complies with the
Voting Rights Act which is also a responsibility we have with
this plan to have it pre-cleared by the Justice Department and
held constitutional by the Courts. The 12th District is almost
47% majority minority. Currently, the 12th District under our
current plan 1s majority minority. [ believe that this new 12th
District is constitutional for several reasons. First, and maybe
most importantly, when the Court struck down the 12th District
it was because the 12th District was majority minority and it
said that you cannot use race as the predominate factor in
drawing the districts. Well guess what! The 12th District,
under this plan, is not majority minority. Therefore, it is my
opinion and the opinion of many lawyers that the test outlined
in Shaw vs. Hunt will not even be triggered because it is not a
majority minority district and you won't even look at the shape
of the district in considering whether it is constitutional. That
makes an eminent amount of sense because what is the cut-off
point for when you have the trigger of when a district looks
ugly. I think that the court will not even use the shape test. if
you will, on the 12th District because it is not majority
minority. It is strong minority influence, and I believe that a
minority would have an excellent chance of being elected under
the 12th District. If, however. the court decides that the test is
triggered for some reason and that we should look at the criteria
outlined in Shaw vs. Hunt. you need to look at what the. how
we have improved the shape of the 12th District. First. it is
much more compact. It is 67% shorter in length than under the
ATTACHMENT 97C-28F-4F(2), CONTINUED. ..
old plan and you see how the old plan stretches from Gastonia
to Durham. You can drive the length of this district in two
hours. It 1s the third shortest district in the entire State. It
covers six (6) counties instead of ten (10), it connects the
metropolitan area of Charlotte and the metropolitan area of the
Triad. There 1s certainly a community of interest along that
corridor, economic, social, and otherwise. It is much wider and
it takes into consideration the incumbent and political balance.
For all of those reasons, [ believe that the 12th District will be
held constitutional. Members of the Senate, redistricting is a
difficult process - I don't want this job again, but I believe that
we have been able to overcome partisan politics and we have
been able to reach a plan that is fair to the people of North
Carolina, and fair to all involved. The House agrees.
Yesterday, the House voted unanimously in favor of this plan -
87-30. Of those 87 members who voted “yes”, 52 were
Republicans and 35 were Democrats. That is a good strong
bipartisan show of support for this plan. I believe that this plan
is acceptable to all of the members of Congress. There are a
couple who have stated objections about the way that some area
had been moved around. but as far as the partisan nature of the
districts 1s concerned, we have preserved the current partisan
nature of each of the districts and for that reason, I think that all
of the incumbents are satisfied. And let me emphasize to you
that this 1s not an incumbent protection plan. This is a plan that
attempts to preserve the partisan nature of each of the twelve
districts as they now exist. [ believe that we've done that with
this plan. Members of the Senate. | encourage you to vote for
ATTACHMENT 97C-28F-4F(2), CONTINUED. ..
this plan. We have a responsibility as a legislature to draw a
plan. It's easier politically to say “let the courts do it". but
that's rolling the dice. Number one, you don't know what you
are going to get and, number two, it is shirking our
responsibility as representatives of the people to do what the
Court has ordered us to do. We may not like everything about
the plan, there are some parts of the plan that I wish I could
change, but the process of negotiations require give and take.
That's what has happened here. I think we have a result that is
fair and equitable for all of the people of North Carolina and I
encourage your "yes" vote. Thank you.
President: For what purpose does Senator Reeves arise”?
Senator Reeves: To ask if Senator Cooper will yield.
President: He yields.
Senator Reeves: Senator Cooper, during your presentation
of the plan over the last several weeks, did you have a chance
to look at Plan 0 which we submitted to you for your review?
Senator Cooper: Yes. Senator Reeves is referring to a plan
that both Senator Reeves and Senator Miller support which
would keep Wake County whole and couple it with Chatham
and Orange as the current 4th District is currently configured.
They have pushed hard for that plan. We officially presented
that plan to the House, it was summarily rejected. [ believe that
ATTACHMENT 97C-28F-4F(2), CONTINUED. ..
if the Senate insisted upon that plan of keeping Wake County
whole. that we would end up letting the federal courts draw this
plan because they would not accept it.
Senator Reeves: In reviewing the order from the courts to
redraw these districts. they keyed on District 12 and District 1.
They did not mention District 4 or 2 as being a problem and.
indeed. in my review, of the plan as we have it right now the
base plan as it is set out, District 4 is not the problem. District
4 has two, almost two and one-half (2 '2) counties and now we
are going to split the largest of those counties right down the
middle. What is the rationale of the House and what is your
rationale for making this fundamental change in District 4 and
District 2.
Senator Cooper: The 12th District currently stretches from
Gastonia to Durham. You necessarily have to change every
single district in the state in order to rectify the
unconstitutionality of the 12th District. Therefore, we had to
make changes in all of the districts. If you were to keep Wake
County whole under the current 4th District plan. the 2nd
District would have to stretch almost completely around the 4th
District in order to get enough population and you would end
up having a situation where you would have almost a doughnut.
with the 4th District being the middle of the doughnut and if we
are looking at a plan that provides for geographic compactness.
that's not one that I think that we should consider.
136
ATTACHMENT 97C-28F-4F(2), CONTINUED. ..
However, | presented it as an option and pushed for it at the
instance of you and Senator Miller and we were not successful.
Senator Reeves: Thank you.
137
DEFENDANTS’ MOTION TO STRIKE AFFIDAVITS FILED IN
SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY
JUDGMENT AND MEMORANDUM IN SUPPORT OF MOTION
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
Civil Action No. 4-96-CV-104-BO(3)
MARTIN CROMARTIE, THOMAS
CHANDLER MUSE, and GLENNES
DODGE WEEKS,
Plaintiffs.
JAMES B. HUNT, JR. in his official
capacity as Governor of the State of North
Carolina, et al.,
)
)
)
)
)
V. )
)
)
)
)
Defendants. )
MOTION TO STRIKE AFFIDAVITS FILED IN
SUPPORT OF PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT AND
MEMORANDUM IN SUPPORT OF MOTION
NOW COME the defendants. pursuant to Rule 56 of the
Federal Rules of Civil Procedure, and move the Court to strike
the affidavits of R.O. Everett, J.H. Froelich. Jr.. Neil C.
Williams. John Weatherly, and Lee Mortimer. which were filed
MOTION TO STRIKE AFFIDAVITS, CONTINUED. ..
by plaintiffs in support of their motion for summary judgment.’
The legal and factual grounds for this motion are set out below.
INTRODUCTION
On or about February 5, 1998, plaintiffs filed a motion
and brief seeking summary judgment on their claim that the
State's 1997 Congressional redistricting plan is an
unconstitutional racial gerrymander. Plaintiffs contend that
Districts 1 and 12 were drawn with a predominately racial
motive and are tainted by the prior districts from the 1992
Congressional plan. In support of their claim, plaintiffs filed
the aftidavits of two plaintiffs who reside in District 12, R.O.
Everett and J.H. Froelich, Jr., along with affidavits from three
other citizens who do not live in the challenged districts. Neil
C. Williams, John Weatherly and Lee Mortimer. The affidavits
of these plaintiffs and interested citizens are rife with hearsay.
speculation, personal opinions, and unsupported conclusions
and beliefs which are not based on personal knowledge. For
this reason the affidavits are not competent evidence to support
plaintiffs” motion for summary judgment and must be struck.
Plaintiffs also rely on these same affidavits to support
their motion for preliminary injunction. For the same reasons they must be
struck from consideration for summary judgment, these affidavits should
carry no weight in deciding plaintiffs’ motion for preliminary injunction.
MOTION TO STRIKE AFFIDAVITS, CONTINUED. ..
ARGUMENT
An affidavit filed as evidence in a summary judgment
proceeding “must present evidence in substantially the same
form as if the aftiant were testifying in court.” Evans v.
Technologies Applications & Service Co., 80 F.3d 954, 962
(4th Cir. 1996). Federal Rule of Civil Procedure 56(e)
specifically requires that affidavits supporting or opposing a
motion for summary judgment “shall be made on personal
knowledge. shall set forth such facts as would be admissible in
evidence. and shall show affirmatively that the affiant is
competent to testify to the matters stated therein.” See Scosche
Industries. Inc. v. Visor Gear, Inc., 121 F.3d 675, 681 (Fed.
Cir. 1997). In evaluating evidence concerning a summary
judgment motion. “a court may not consider affidavits that do
not satisty the requirements of Fed. R. Civ. P. 56(e).” El Deeb
v. University of Minn... 60 F.3d 423, 429 (8th Cir. 1995).
AFFIDAVITS OF EVERETT, FROELICH AND WILLIAMS
The affidavits of Everett, Froelich and Williams are
inadmissible conclusory expressions of personal beliefs and lay
opinions and arc not competent evidence for purposes of
deciding a summary judgment motion. Everett offers
testimony that he “perceive[s]” that the shape of District 12 in
the 1992 plan was predominantly motivated by race and also
his lay opinion that the shape of District 12 in the 1997 plan is
still a racial gerrymander motivated predominately by race.
Everett. a local businessman from Rowan County who had no
involvement in the legislature’s redistricting process, also
speculates that the boundaries would have been quite different
140
MOTION TO STRIKE AFFIDAVITS, CONTINUED. ..
if race-neutral principles such as compactness. contiguity, and
political subdivisions had been followed. Similarly, Froelich,
a businessman from Guilford County who had no involvement
in the legislature’s redistricting process. offers his personal
belief that apart from a racial motive. no one could justify
putting Mecklenburg and Guilford Counties in the same
district. He further speculates that based on race-neutral
redistricting principles all of Mecklenburg County would be in
one district, while all of Guilford County would be in another
district. The Williams affidavit offers similar incompetent
testimony. Williams, a lawyer and local politician from
Mecklenburg County who lost the Republican primary in 1994
in District 9, also had no involvement in the legislature’s
redistricting process. However, he offers his personal belief that
it “is apparent” that racial motives predominated in creating
District 12 and speculates that using traditional redistricting
principles of compactness. contiguity and respect for political
subdivisions and actual communities of interest, all of
Mecklenburg County would be in a single district. Finally, he
offers his legal conviction that District 12 is the “fruit of the
poisonous tree.”
As a matter of law, such conclusory and speculative
statements of belief are insufficient to support summary
judgment on the issue of whether race was the predominate
factor motivating the legislature's redistricting decision.
“[O]nly statements “made on personal knowledge” will support
a motion for summary judgment; statements of mere belief
fig
1
EAE
141
MOTION TO STRIKE AFFIDAVITS, CONTINUED. ..
must be disregarded.” Tavery v. United States. 32 F.3d 1423,
1435 (10th Cir. 1994) (quoting Automatic Radio Mfg. Co. v.
Haczeltine Research, 339 U.S. 827, 831.70 S. Ct. 894. 896, 94
L. Ed. 1312 (1950)). See also Jameson v. Jameson. 176 F.2d
58.60 (D.C. Cir. 1949) (Belief, no matter how sincere. is not
equivalent to knowledge.”); Carey v. Beans, 500 F. Supp. 580,
585 (E.D. Pa. 1980) (on summary judgment, statements
prefaced by the phrases “I believe or those made upon an
“understanding” are properly subject to a motion to strike).
Because personal knowledge is the necessary foundation for lay
testimony, “affidavits composed of hearsay and opinion
evidence do not satisfy Rule 56(e) and must be disregarded.”
Scosche Industries, 121 F.3d at 681 (citing State Mut. Life
Assurance Co. of Am. v. Deer Creek Purk. 612 F.2d 259, 264-
65 (6th Cir. 1979) and Rossi v. Trans World Airlines, Inc., 507
F.2d 404, 406 (9th Cir. 1974)). Similarly. “[s]peculation does
not meet a party's burden” in a summary judgment proceeding’
and “[f]acts, not [a plaintiff's] perceptions and feelings, are
required.” Uhl v. Zalk Josephs Fabricators. Inc., 121 F.3d
1133, 1137 (7th Cir. 1997).
The lay witness testimony offered by plaintiffs is not
probative or competent evidence. The “gauzy generalities” of
the affidavits offered by plaintiffs, which are “apparently based
on something less than personal knowledge.” prove nothing
and “are not entitled to weight in the summary judgment
balance.” Cadle Co. v. Hayes, 116 F.3d 957. 961 (Ist Cir.
1997). See also Baker v. Latham Sparrowbush Assocs., 72
142
MOTION TO STRIKE AFFIDAVITS, CONTINUED. ..
F.3d 246, 255 (2nd Cir. 1995) (allegation made solely upon
information and belief without any supporting evidentiary facts
could not be considered on motion for summary judgment):
U.S. for Use and Ben. of Conveyor Rental & Sales Co. v. Aetna
Cas. & Sur. Co., 981 F.2d 448, 454, (9th Cir. 1992) (attidavit
was inadmissible as evidence on summary judgment motion
absent requisite personal knowledge of affiant). Evidence
submitted in summary judgment affidavits must be based on
personal knowledge and cannot be conclusory. Evans. 80 F.3d
at 962. Because “self-serving opinions without objective
corroboration [are] not significantly probative. the decision to
strike and disregard as irrelevant” is proper. /d. In the instant
case, the affidavits of Everett, Froelich and Williams consist of
conclusory statements predicated on personal beliefs
unsupported by objective facts. For these reasons. the
affidavits must be struck by this Court pursuant to Rule 56(e).
AFFIDAVIT OF JOHN WEATHERLY
Representative John Weatherly is the current
representative from House District 48 and previously served in
the North Carolina House of Representativesin the 1989. 1993
and 1995 sessions. Although he served on an Election Laws
Reform Committee in 1996, and unsuccessfully introduced a
bill in 1997 to establish a redistricting commission. he did not
serve in the General Assembly when the 1992 Congressional
plan was enacted and was not a member of the House
Committee on Congressional Redistricting during the 1997
session when the current redistricting plan was enacted. See
143
MOTION TO STRIKE AFFIDAVITS, CONTINUED. ..
Bartlett Aff.. Vol. IV at 97C-28F-3B, p. 3. Representative
Weatherly’'s only link to the redistricting process was an
appearance at the Public Hearing held by the General
Assembly's Congressional Redistricting Committees on
February 26. 1997. to speak in support of his bill to create a
redistricting commission. (Weatherly’s Commission bill was
never enacted by the General Assembly.) Weatherly took this
opportunity to criticize the proposed Senate and House
redistricting plans presented at the public hearing on the
grounds that they were designed for the primary purpose of
protecting the interests of incumbents and political parties. See
Bartlett Atf.. Vol. [V at 97C-28F-3B, pp. 38-40. There was no
suggestion in his public comments that Districts 1 and 12 were
racial gerrymanders or that race was the predominant motive in
the creation of these two districts.
Although he had no participation in the redistricting.
process other than appearing at the public hearing and casting
a vote against the plan (Bartlett Aff., Vol. V at 97C-28F-4H at
House Roll Call Vote #196), Representative Weatherly
concludes in his affidavit that race predominated in
determining the boundaries of Districts 1 and 12, and with no
supporting evidence expresses his opinion that the General
Assembly acted under a premise that two Congressional
districts should be created to assure the election of African-
Americans. specifically the incumbent African-Americans. He
also expresses his conviction that the only conceivable motive
for linking Mecklenburg with Guildford and Forsyth Counties
144
MOTION TO STRIKE AFFIDAVITS, CONTINUED. ..
in -a Congressional district was the racial motive of
guaranteeing the election of an African-American. He further
expresses his belief that the same racial motivation applied to
the creation of District 1. Representative Weatherly candidly
admits in his affidavit that his opinions and conclusions are not
based on personal knowledge. but are based on hearsay--
“statements made on or off the floor of the General Assembly
or in Committee, on the final results of the redistricting
process, and on [his] experience as a legislator.” Weatherly
Aff. at 4.
Representative Weatherly ’s beliefs and conclusions on
the motivations behind the drawing of current Districts 1 and
12 are not competent admissible evidence. See discussion
above at pp. 4-5. regarding the inadmissibility of conclusory
statements of personal belief. In addition, “hearsay evidence,
which is inadmissible at trial. cannot be considered on a motion
for summary judgment.” Maryland Highway Contractors’
Ass 'n., Inc. v. State of Maryland, 933 F.2d 1246, 1251-52 (4th
Cir. 1991). See also Miller v. Solem, 728 F.2d 1020. 1026 (8th
Cir. 1984) (affidavits containing hearsay statements failed to
comply with Rule 56(e) requirements); Pan-Islamic Trade
Corp. v.. Exxon Corp.. 632 F.2d 539. 556 (5th Cir. 19380)
(hearsay evidence in Rule 56 affidavits 1s entitled to no
weight); Blair Foods. Inc. v. Ranchers Cotton Oil, 610 F.2d
665, 667 (9th Cir. 1980) (hearsay evidence 1s inadmissible and
may not be considered by this court on review of a summary
judgment). Representative Weatherly’s inadmissible affidavit
145
MOTION TO STRIKE AFFIDAVITS, CONTINUED. ..
“1s very nearly entirely conclusory and devoid of specific facts
to support his opinion.” Rohrbough v. Wyeth Labs., Inc., 916
F.2d 970, 975 (4th Cir. 1990). In addition, given the conflict
between his conclusory affidavit alleging a predominant racial
motive and his public statement criticizing the primary motive
of protecting incumbents and political parties, the Court may
disregard the affidavit. Id
Finally, Representative Weatherly's affidavit is
inadmissible to prove the legislature's motivation in enacting
the 1997 Congressional plan and must be struck. It is a long
standing rule of law in North Carolina that the affidavit or
testimony of a member of the legislature may not be relied
upon to prove legislative intent. D & WW. Inc. v. City of
Charlotte, 268 N.C. 577, 581-82. 151 S.E.2d 241, 244 (1966).
A statute “1s an act of the legislature as an organized body” and
it “expresses the collective will of that body™ so that the
understanding of a single member may not be accepted by the
Court to ascertain the legislative intent. [dd See also Milk
Comm'n v. National Food Stores, 270 N.C. 323. 332-33, 154
S.E.2d 548, 555 (1967) (testimony or affidavits of members of
the legislature are not competent evidence of legislative intent
and must be disregarded). Because North Carolina law
provides that the affidavit of an individual member of the
General Assembly is inadmissible and cannot be relied upon to
prove legislative intent, the affidavit of Representative
Weatherly attempting to establish the legislature's motive in
drawing Districts 1 and 12 must be struck. Empire Distribs. of
146
MOTION TO STRIKE AFFIDAVITS, CONTINUED. ..
N.C. v. Schieffelin & Co., 679 F. Supp. 541 (W.D.N.C. 1987).
For all the foregoing reasons, this Court must disregard the
affidavit of Representative Weatherly.
AFFIDAVIT OF LEE MORTIMER
Lee Mortimer, a self-professed expert on proportional
representation, is a technical writer in the Research Triangle
Park who has previous experience as a journalist. His
educational background consists of an undergraduate degree
from Western Carolina University in history with a minor in
political science. As an active proponent of proportional
representation, a representational theory irrelevant to
Congressional elections, Mortimer purports to be qualified to
provide expert testimony on the Congressional redistricting
process in North Carolina. He had no involvement in and has
no personal knowledge of the legislatures Congressional
redistricting process. Mortimer’s views on the motivation of
the General Assembly and its leadership in drawing the 1997
Congressional plan are not based on any personal knowledge
and his affidavit does not show affirmatively that he is
competent based, on education, experience. or other training,
to testify as an expert to the matters stated therein.
Despite an absence of qualifications to testify as an
expert under Federal Rule of Evidence 702, Mortimer offers
testimony consisting of a string of lay opinions:
147
MOTION TO STRIKE AFFIDAVITS, CONTINUED. ..
. “In my opinion” the severe misshapenness
indicates race predominated in determining
District 1's boundaries.
. “So. In my opinion” it is clear from the
resemblance to the previous districts that
Districts 1 and 12 are the “fruit of the
poisonous tree.”
. “I believe the new Districts 1 and 12 would
never have been drawn with their present
boundaries “except for race.”
. “I can see no legitimate basis” for the way
the minority communities were grouped
together.
. “In my opinion” District 12 is a make over
of the old unconstitutional district.
. “I believe™ it is the process used to reach a
result that “indicates” a racial intent.
. “In my opinion” the only explanation for
disregarding the objective to maintain intact
counties and municipalities is that such an
objective undermined and conflicted with
the predominate objective of maximizing
the district's black population.
. “In my opinion” the inclusion of some
minimum number of intact counties is an
148
MOTION TO STRIKE AFFIDAVITS, CONTINUED. ..
important test of whether the district is
raced-based.
. “It appears to me District 12 has no intact
counties because race was the predominant
consideration.
. “I believe” the common characteristics test
is a common sense criteria applied in
redistricting cases to determine whether race
predominated in drawing a district.
. “It is clear to me” that the option of drawing
separate districts using Mecklenburg and
Guildford Counties was not considered
because it would not produce a district that
had more than a 29 percent minority
population.
See generally Mortimer Aff. at 3-9.
To be admissible. expert testimony must consist of
scientific, technical. or other specialized knowledge that will
assist the trier of fact to understand the evidence or to
determine a fact in issue. See, Rule 702, Federal Rules of
Evidence.
[T]he plain language of the Rules maintains
some limitations on expressions of opinion.
Lay opinions must be “rationally based on the
perception of the witness,” Fed. R. Evid. 701.
149
MOTION TO STRIKE AFFIDAVITS, CONTINUED. ..
and, only experts qualified by “knowledge,
skill, experience, training or education” may
submit an opinion. Fed. R. Evid. 702.
Thomas J. Kline, Inc. v. Lorillard. Inc., 878 F.2d 791, 799 (4th
Cir. 1989). Although the Federal Rules of Evidence have
generally relaxed traditional barriers to expert opinion
testimony, the Supreme Court has emphasized that Rule 702
“clearly contemplates some degree of regulation of the subjects
and theories about which an expert may testify.” Daubert v.
Merrell Dow Pharmaceuticals. Inc., 509 U.S. 579, 589, 113 S.
Ct. 2786,2795. 125 L. Ed. 2d 469, 480, (1993). In particular,
the Court observed that Rule 702 permits an expert to testify
only when “scientific.technical, or other specialized knowledge
will assist the trier of fuct.” and that “the word ‘knowledge’
connotes more than subjective belief or unsupported
speculation.” Id. at 589-90, 113 S. Ct. at 2795, 125 L. Ed. 2d
at 480-81.
Expert opinion is admissible as evidence in a summary
judgment proceeding “only where it appears that the affiant is
competent to give an expert opinion.” Garside v. Osco Drug,
Inc., 895 F.2d 46. 50 (1st Cir. 1990). A witness who lacks an
appropriate educational background and lacks any training or
other experience in the area of testimony is not qualified under
Rule 702 as an expert witness. See Thomas J. Kline. 878 F.2d
at 799-800 (witness who was not an economist. whose highest
level of education was a masters degree in business
administration. who had published only one article on an
150
MOTION TO STRIKE AFFIDAVITS, CONTINUED. ..
unrelated topic, and who had no relevant work experience. was
not qualified to testify as expert on credit decisions): Doddy v.
Oxy USA, Inc., 101 F.3d 448. 459 (5th Cir. 1996) (witness
qualified to testify as an expert on procedures for treating oil
and gas wells for corrosion not qualified to testify on issues
related to chemical content and toxicity which were matters not
within his field of expertise). To allow a witness to testify to
matters beyond his expertise or of which he has no personal
knowledge “would tend to mislead the jury by having an
‘expert’ testify to matters that are not within his field.” Doddy,
101 F.3d at 459.
In the instant case, Mortimer has laid no foundation
supporting his self-serving description of himself as an expert
on redistricting. The affidavit on its face shows he lacks the
relevant educational background, experience or other training
to qualify as such an expert, and his various personal opinions
and beliefs are inadmissible lay testimony which should not be
considered by the Court. See discussion above at pp. 4-5,
regarding the inadmissibilityof conclusory and unsupported lay
witness personal opinions and beliefs.
In addition to offering his various personal opinions and
beliefs, Mortimer also attempts to offer expert testimony on the
minimum percentage of black voting-age population needed in
a Congressional district in North Carolina to achieve what he
deems an equal electoral opportunity as a matter of law. See
Mortimer Aff. at 9-17. Not only is Mortimer unqualified to
us
uw
w
h
lh
,
MOTION TO STRIKE AFFIDAVITS, CONTINUED. ..
offer this particular analysis and legal conclusion. but he
attempts to support his lay opinion by attaching to his affidavit
a theoretical article on black representation by two political
scientists. The inappropriateness of Mortimer’s testimony on
a theory of equal electoral opportunity for minorities arises not
only from his lack of competence to present the theory, but also
from the unvalidated nature of the theory itself. In order for
expert testimony to be properly admitted, it must meet a two
part test: (1) the expert testimony must consist of knowledge
that is supported by appropriate validation; and (2) “the
evidence or testimony must ‘assist the trier of fact to
understand the evidence or to determine a fact in issue.’
Daubert, 509 U.S. at 590-91,113 S. Ct. at 2795. 125 L. Ed. 2d
at 481. To determine whether certain expert evidence properly
satisfies the first prong of the test, trial courts must consider
whether the theory used by the expert can be. and has been,
tested; whether the theory has been subject to peer review and
publication; the known or potential rate of error of the method
used; and the degree of the method's or conclusion’s
acceptance within the relevant scientific community. /d. at 593-
94,113 S.Ct. at 2796-97,125 L. Ed. at 483. Even if testimony
meets the first prong of the test, the Supreme Court has warned
that in determining whether evidence meets the second prong
of the test, judges must be mindful of other evidentiary rules
which permit the exclusion of evidence when its probative
value is substantially outweighed by the danger of unfair
prejudice. confusion of the issues or misleading the jury:
154
MOTION TO STRIKE AFFIDAVITS, CONTINUED. ..
Educational Equality League. 415 U.S. 605, 618 n. 19.94 S.
Ct. 1323, 1332 n.19, 39 L. Ed. 2d 630, 643 n.19 (1974); New
England Mut. Life Ins. Co. v. Anderson. 888 F.2d 646, 650-51
(10th Cir. 1989). Such hearsay evidence is inadmissible at tnal
and “cannot be considered on a motion for summary
judgment.” Maryland Highway Contractors Ass n, Inc.. 933
F.2d at 1251-52.
CONCLUSION
Plaintiffs have moved for summary judgment and
defendants have cross-moved for summary judgment.
Summary judgment is appropriate unless plaintiffs produce
evidence that is sufficient to establish a reasonable probability
of the existence of the essential elements of their claims. Autry
v. N.C. Dept. of Human Resources, 820 F.2d 1384, 1386 (4th
Cir. 1987); Lovelace v. Sherwin-Williams, 681 F.2d 230, 242
(4th Cir. 1982). Federal Rule of Civil Procedure 56(e) also
demands that affidavits supporting or opposing a motion for
summary judgment be made on personal knowledge. set forth
facts admissible in evidence and show affirmatively that the
affiant is competent to testify to the matters contained in the
affidavit. Federal Rule of Evidence 702 requires that only
experts qualified by knowledge, skill, experience, training or
education are competent to give expert opinions. Thomas J.
Kline, Inc., 878 F.2d at 799. The five affidavits offered by
plaintiffs fail to meet these basic requirements. and they must
be struck and disregarded by the Court in determining the
parties’ summary judgment motions.
1 5 (W
J)
MOTION TO STRIKE AFFIDAVITS, CONTINUED. ..
This the 2nd day of March, 1998.
MICHAEL F. EASLEY
ATTORNEY GENERAL
/s/ Edwin M. Speas, Jr.
Senior Deputy Attorney General
N.C. State Bar No. 4112
/s/ Tiare B. Smiley
Special Deputy Attorney General
N. C. State Bar No. 7119
/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]
[This page intentionally left blank]
157
AFFIDAVIT OF ROBINSON O. EVERETT (WITHOUT
ATTACHMENT) (CD 56)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
RALEIGH DIVISION
Civil Action No. 4.96-CV-104-BO(3)
MARTIN CROMARTIE, et al.
Plaintiffs,
VS.
JAMES B. HUNT, JR.. in his official
capacity as Governor of the State of
North Carolina, ef al..
Defendants.
N
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t
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e
”
AFFIDAVIT OF ROBINSON O. EVERETT
Robinson O. Everett. being duly sworn, deposes and
declares as follows: /
I am an attorney for the plaintiffs in this case; and
previously I was a plaintiff in the Shaw v. Hunt litigation and
also represented myself and my co-plaintiffsin that case at trial
and on appeal. 1 was present during the entire trial that
commenced late in March, 1994: and I cross-examined some of
the defendants’ witnesses in that case. One of those whom |
cross-examined was Gerry Cohen, who had played a major role
in the preparation of the 1992 congressional redistricting plan.
Attached to this affidavit are pages 627-629 of the transcript of
the trial, wherein is contained a portion of his trial testimony in
158
AFFIDAVIT OF ROBINSON O. EVERETT, CONTINUED. ..
which I cross-examined him about an earlier deposition which
he had given. As reflected in the attached pages of the
transcript, he reaffirmed his earlier deposition testimony that
95% of the African-Americans registered to vote in “urban
areas’ in North Carolina were registered as Democrats and 97-
98% in “rural areas” were registered as Democrats. During the
trial I also cross-examined Representative Melvin Watt,
Congressman from the Twelfth District; and as reflected in the
attached pages 981-983 of the transcript. [ questioned him
about the estimated percentage of registration of African-
Americans as Democrats. His opinion in that regard. as
reflected in the attached transcript. was similar to Mr. Cohen's
opinion that 95% or higher of the African-Americansregistered
to vote in North Carolina are registered as Democrats. I do not
recall any evidence given during the discovery process or at
trial in Shaw v. Hunt that was inconsistent with the testimony
of Cohen and Watt.
Further affiant sayeth not.
/s/ Robinson O. Everett
Subscribed and sworn to before me
this 23rd day of March, 1998.
/s/ Anita Robinson
Notary Public
My Commission expires: 10-28-2002
159
DECLARATION FOR RONALD WEBER (WITHOUT
ATTACHMENTS) (CD 57)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
Civil Action No. 04-CV-104-H2
MARTIN CROMARTIE, et. al. )
Plaintiffs, )
)
VS. )
)
JAMES B. HUNT, JR. )
Defendant. )
DECLARATION OF DR. RONALD E. WEBER
[. Ronald E. Weber, Ph.D., declare pursuant to 28
U.S.C. 1746 as follows:
I, I am currently the Wilder Crane Professor of
Government in the Department of Political Science at the
University of Wisconsin, Milwaukee, Wisconsin; President of
Campaign and Opinion Research Analysts, Inc.; former co-
editor of The Journal of Politics and Chairman of the
Department of Political Science at the University of Wisconsin.
Milwaukee: and former Fulbright Commission John Marshall
Professor of Political Science at the Budapest University of
Economic Sciences and the Central European University.
Budapest. Hungary (1996-97). I received my B.A. in Political
Science and History from Macalester College, St. Paul, MN. in
160
DECLARATION FOR RONALD WEBER, CONTINUED. ..
1964 and a Ph.D. in Political Science from Syracuse University
in 1969, with specialties in American state politics, voting
behavior, and quantitative analyses of political data. A copy of
my curriculum vitae is attached as Exhibit A.
2. I am the author of numerous scholarly works on
state political behavior, including several works on state
legislative elections and voting behavior at the individual and
aggregate levels of analysis. These works have appeared in
such academic journals as the American Political Science
Review, The Journal of Politics, Midwest Journal of Political
Science, Public Opinion Quarterly. American Politics
Quarterly. and Legislative Studies Quarterly.
3. [ have been retained as a consultant and expert
witness in a number of redistricting and voting rights cases and
have been qualified as an expert by the U.S. District Courts in
the Middle District (Northern and Southern Divisions) of
Alabama. the Northern District (Tallahassee Division) and
Middle District (Jacksonville Division) of Florida, the Southern
District (Augusta Division) of Georgia. the Northern District
(Eastern Division) of Illinois, the Eastern. Middle, and Western
Districts of Louisiana, the District of Maryland, the District
(Western Division) of Massachusetts. the Eastern District
(Southern Division) of Michigan. the Northern District (Eastern
and Western Divisions) of Mississippi. the Eastern District
(Eastern Division) of Missouri. the District of Nebraska, the
Southern District of New York, the Northern (Dallas Division).
161
DECLARATION FOR RONALD WEBER, CONTINUED. ..
Southern (Houston Division). and Western (Austin Division)
Districts of Texas. the Eastern District of Virginia (Richmond
Division). and the Eastern District of Wisconsin. I have given
testimony by deposition in a number of cases. including a
deposition for the plaintiffs in the Congressional redistricting
case of Shaw v. Reno, n/k/a Shaw v. Hunt (Eastern District of
North Carolina, Raleigh Division). I have testified in a number
of Congressional and state legislative redistricting cases,
including Johnson v. Miller (Southern District of Georgia,
Augusta Division), Vera v. Richards (Southern District of
Texas. Houston Division), Hays v. State of Louisiana (Western
District of Louisiana, Shreveport Division), Johnson v.
Mortham (Northern District of Florida. Tallahassee Division),
Moon v. Meadows (Eastern District of Virginia, Richmond
Division). DeGrandyv. Wetherell (Northern District of Florida,
Tallahassee Division), NAACP v. Austin. (Eastern District of
Michigan. Southern Division). and Thomas v. Bush, (Western
District of Texas, Austin Division). A full listing of the cases
in which | have testified in Federal court or I was deposed
under oath is attached as Exhibit B. | also have extensive
experience developing redistricting plans for local and state
government clients and assisting them with preclearance of
those plans under Section 5 of the U.S. Voting Rights Act of
1965. as amended in 1982.
4. [ have been retained by plaintiffsin this case and
am being compensated at the rate of $125 per hour plus out-of-
pocket expenses. Neither the amount of my compensation nor
162
DECLARATION FOR RONALD WEBER, CONTINUED. ..
the fact that [ am being compensated has altered the opinions
that | have given and will give in this declaration and case.
X I address the following questions in analyzing
whether the 1997 U.S. Congressional redistricting in North
Carolina results in a violation of the Fourteenth and Fifteenth
Amendments of the U.S. Constitutionin accord with factors set
forth by the U.S. Supreme Court in Shaw v. Reno. Miller v.
Johnson. Shaw v. Hunt, and Bush v. Vera:
(1) whether race was the predominant factor used by
the state of North Carolina to draw the boundaries of
the 1997 U.S. Congressional districts:
(2) whether the state of North Carolina in creating the
U.S. Congressional districting plan subordinated
traditional race-neutral districting principles. such as
compactness, contiguity, respect for political
subdivisions or communities defined by actual shared
interests, to racial considerations:
(3) whether the African-American voting age
population anywhere in North Carolina is sufficiently
large and geographically concentrated enough to
constitute a potential voter majority using traditional
districting principles to draw a single-member
Congressional district; and
(4) whether the majority-minority U.S. Congressional
Districts 1 and 12 in the 1997 North Carolina plan is
overly safe from the standpoint of giving a candidate of
163
DECLARATION FOR RONALD WEBER, CONTINUED. ..
choice of African-Americanvoters an opportunity to be
elected. thus questioning whether the plan was
narrowly tailored to satisfy a compelling state interest.
6. The results of my analysis to date will be
presented in this declaration in the following form: in Section
[. T will outline briefly the history of Congressional districting
in North Carolina since 1960; in section II, I will describe the
analyses conducted to answer the first two questions and set
forth mv conclusions on those questions; in section III, I will
describe the analyses conducted to answer the third question
relating to size and concentration of African-American voters
in North Carolina: and in section IV, I will discuss the electoral
safeness of North Carolina Congressional districts 1 and 12.
Tables. charts. and exhibits relevant to my analyses will be
included within the body of the declaration or as attachments
to this declaration.
FINDINGS
I. HISTORY OF RECENT CONGRESSIONAL
REDISTRICTINGS IN NORTH CAROLINA
7. Following the 1960 Census of Population. the
U.S. Congress in apportioning Congressional seats among the
states decreased the size of the North Carolina Congressional
delegation from 12 to 11 seats. Thus. the North Carolina
General Assembly redistricted the state into a total of 11
districts in time for use in the 1962 elections. In this plan not
164
DECLARATION FOR RONALD WEBER, CONTINUED. ..
a single county was split across two Congressional districts.
This plan was used in the 1962 and 1964 elections.
8. Following the U.S. Supreme Court decision in
Wesberry v. Sunders (1964). the North Carolina Congressional
districting plan was challenged in Federal court. A three-judge
Federal panel held the plan unconstitutional in 1965 and
ordered the North Carolina General Assembly to enact a
constitutional Congressional districting plan by Jan. 31, 1966
(Drum v. Sewell. F.Supp _ ,M.D.N.C., 1965). The court
order spurred the North Carolina General Assembly to redraw
the Congressional districts in early 1966, reducing some
population disparitiesamong the districts. This plan, which the
Federal court accepted only for use as an interim plan for use
in the 1966 primary and general elections, did not split a single
county in reducing the population disparities. The Federal
Court ordered that the General Assembly adopt another plan by
July 1. 1967 to further reduce the population disparities in the
plan of January of 1966. A third Congressional districting plan
for the 1960s was adopted by the North Carolina General
Assembly on July 3. 1967 and received Federal Court approval
later that month. Again, the General Assembly was able to
achieve a plan that reduced population disparities while not
splitting any counties. This plan was used in the 1968 and
1970 elections.
0. Based on the 1970 Census of Population, the 11
Congressional districts of North Carolina were out of balance
163
DECLARATION FOR RONALD WEBER, CONTINUED. ..
in population and the General Assembly had to adjust the
populations of the 11 districts before the 1972 elections. In
1971, the General Assembly adopted a plan that did not divide
any county and had a maximum population deviation of 3.8
percent. These districts were used in the elections of 1972-
1980.
10. As was true following the 1970 Census of
Population, the 1980 Census of Population revealed that the 11
districts of the 1970s were out of population balance. Thus, the
North Carolina General Assembly had to adjust the populations
of the 11 districts before the 1982 elections. The first plan
adopted in July. 1981 did not receive pre-clearance under
Section 5 by the U.S. Department of Justice. The General
Assembly followed-up with a revised plan that satisfied the
Department of Justice's objections in a special session of
February, 1982. For the first time in the modern history of
North Carolina. it was necessary to split four counties in order
to balance the populations across the districts. Avery,
Johnston. Moore. and Yadkin counties were each split across
two districts. The town of Chapel Hill as well as the city of
High Point were each split across two districts owing to the fact
that those two places cross county lines and the General
Assembly decided to draw the Congressional districts using
county lines between Orange and Durham counties and
between Guilford and Randolph counties. These 11 districts
were used in the elections of 1982-1990.
166
DECLARATION FOR RONALD WEBER, CONTINUED. ..
11. The population of the state of North Carolina
grew more rapidly than the U.S. as a whole between 1980 and
1990, and thus the Congressional apportionment following the
1990 Census of Populationallocated an additional seat to North
Carolina, bringing the size of the Congressional delegation
back to 12 seats as it had been in the 1950s. [ will not recount
the history of General Assembly action in the early 1990s on
Congressional districting as that has been extensively discussed
in Shaw v. Reno (113 S.Ct. 2916, 1993) and Shaw v. Hunt (861
F. Supp 408, E.D.N.C., 1994; 116 S.Ct. 1894. 1996). Suffice
it to say that the Congressional districting plan of the 1990s
which was used in the 1992 and 1994 elections was invalidated
by the Shaw challenge. The 1996 election was also held using
these districts as the North Carolina General Assembly was
given until the 1997 regular session to redraw the
Congressional districts. The 1997 plan of the North Carolina
General Assembly is under challenge in this action.
13. [ conclude this section by making several
observations. First, the sub-dividing of counties to achieve
equally populated Congressional districts in North Carolina is
a relatively recent occurrence, taking place for the first time
with the splitting of just four counties in the early 1980s.
Second, no county in North Carolina is large enough that it
must of necessity be sub-divided to comply with the principle
of “one-person, one-vote”. Mecklenburg County. the largest
county in population in North Carolina. is slightly smaller than
a current Congressional district. Third. as a matter of principle
|
167
DECLARATION FOR RONALD WEBER, CONTINUED. ..
the number of counties that would need to be sub-divided to
comply with “one-person, one-vote” is N-1 the number of
Congressional districts. Thus, at the maximum a total of ten
North Carolina counties might need to be split to create an
equally populous plan, by using whole counties to create
Congressional districts and then splitting just one county to
balance the population between each of two districts. Fourth,
despite the fact that the number of persons needed to populate
an equitably populous plan increases each decade (after the
1980 Census the ideal district size was 534.706: after 1990 it
was 352.386; and after 2000 it could be as high as 648.104
based on recent state population projections). the percentage of
African-American persons in the North Carolina population
declined between 1980 and 1990. As Professor Alfred W.
Stuart's report for this case reveals, it is likely that the African-
American percentage of the total state population will be less
in 2000 that it was in 1990. Thus, as the average size of a
Congressional district increases, the number of African-
American persons of voting age available to constitute a
majority of voters in a Congressional district does not increase
as rapidly (I will return to this point more specifically later).
Finally. as I will consistently point out below. the appropriate
social science benchmark for comparison of the challenged
plan is the plan of the 1980s (with 11 districts) and not the
constitutionally invalidated 12 district plan of the 1990s. Thus,
in my assessment of the challenged plan | will be making
comparisons to the plan of the 1980s as well as to other
Congressional districting plans of the 1990s from states whose
168
DECLARATION FOR RONALD WEBER, CONTINUED. ..
plans have been moditied by Federal court order or revised by
the state legislatures following invalidation by the Federal
courts.
11. ANALYSIS OF DISTRICTING CRITERIA
EMPLOYED BY STATE
14. The data needed to address the questions related
to the role of race and adherence to race-neutral traditional
districting principles was provided by counsel for the Plaintiffs.
This material includes documents from the North Carolina
General Assembly. special analyses provided by the General
Assembly's Information Services Division, and reports and
affidavits of both plaintiffs’ and defendants’ experts. In
addition, data compiled by the U.S. Congressional Research
Service and the U.S. Census Bureau are analyzed in my
answers to these questions.
15, The question of whether race was the
predominant factor used by the state of North Carolina to draw
the boundaries of the U.S. Congressional districts in 1997 can
be addressed by an examination of both tabular data prepared
by the North Carolina Information Systems Division from data
compiled by the U.S. Bureau of the Census and maps created
on the computer facilities of the North Carolina General
Assembly Legislative Services Office Redistricting System.
Data from both sources are reported in tabular form and on
maps to display the use of race as a redistricting criterion.
169
DECLARATION FOR RONALD WEBER, CONTINUED. ..
16. Tabular data showing how race acted as the
predominant consideration in the creation of the 1997 plan for
the North Carolina Congressional districts are reported in
Tables 1 and 2. Table | reports for each 1997 North Carolina
Congressional district the racial composition of the total
population of the counties that were sub-divided in the creation
of the plan using data from the County Split Assignments
Report of March 26. 1997 of the North Carolina Information
Systems Division. For both Districts 1 and 12 that were
created to elect an African-Americanmember of Congress, the
county splits show a typical pattern of African-American total
population majorities in the largest jurisdictions of each
district. A total of 22 counties are split across the 12 districts
and just one district (District 11) is composed of whole
counties. Ten of the split counties are accounted for by the
construction of District 1, while another six are accounted for
by District 12. Six other counties are split in the plan. Half of
the counties in District 1 are split, while 100 percent of the
counties (all six) are split in the creation of District 12.
17. Turning first to District 1, six of the ten counties
wholly within the district have African-American population
majorities and the other four counties have African-American
population percentages of at least 42 percent. The racial make-
up of the parts of the ten sub-divided counties assigned to
District 1 include four with parts over 50 percent African-
American. four others with parts of over 40 percent African-
American. and two with parts of over 30 percent African-
TABLE 1
Proportion of Total Population in Split Counties
by Congressional District for 1997 Plan (HB 586 -- Plan A)
*
A
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County/City CD Total White % African-Amer. %
Beaufort 1 23,714 14,659 61.8 8,948 37.7
Craven 1 25.279 14,207 56.2 10,920 43.2
Granville 1 20,717 10,480 50.6 10,106 48.8
Jones 1 8.553 5,045 59.0 3,461 40.5
Lenoir l 31.016 11,867 38.3 18.959 61.1
Person l 21.001 13.436 64.0 7.307 34.8
Pitt 1 49,584 23,676 47.7 25.373 §1.2
Washington 1 10,750 5,499 51.2 5.207 48.4
Wayne I 36,323 17,110 47.1 18,781 51.7
0L
1
TABLE 1 (Ctd.) <
Proportion of Total Population in Split Counties £2
by Congressional District for 1997 Plan (HB 586 -- Plan A) 5
5
County/City CD Total White % African-Amer, % g
ry
Wilson 1 43,517 21,008 48.2 22,181 51.0 "
~
Granville 2 17,628 12,589 71.4 4,803 271.2 2
>
Sampson 2 22.745 14,114 62.1 7,985 35.1 z —
Wake 2 185,642 118,648 63.9 62,515 337 | 2
=
Wilson 2 22.544 19,615 87.0 2715 12.0 A
o
Beaufort 3 18,569 14,290 76.9 4,246 22.9 2
Z
Craven 3 56,334 44.453 78.9 10,196 18.1 :
Jones 3 861 642 74.6 216 25.0] ;
Lenoir 3 26.258 22,435 85.4 3,580 13.6
TABLE 1 (Ctd.)
Proportion of Total Population in Split Counties
by Congressional District for 1997 Plan (HB 586 -- Plan A)
County/City CD Total White % African-Amer. %
Pitt 3 58,340 46,967 80.5 10.548 18.1
Washington 3 3,247 2,057 63.4 1,159 35.7
Wayne 3 68,343 52,062 76.2 15,012 22.0
Chatham 4 29.239 22,800 78.0 6,112 20.9
Person 4 9.179 7,304 79.6 1,799 19.6
Wake l 237,738 205,363 86.4 25,548 10.7
Alamance 5 79.976 60,647 75.8 18,544 23.2
Forsyth 5 206,766 181,381 87.7 22,997 11.1
Alamance 6 28,237 25,726 91.1 2,278 8.1
*
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TABLE 1 (Ctd.)
Proportion of Total Population in Split Counties
by Congressional District for 1997 Plan (HB 586 -- Plan A)
County/City CD Total White % African-Amer. %
Chatham 6 9,520 6,623 69.6 2.733 28.7
Davidson 6 59,993 57.135 93.2 2,468 4.1
Guilford 6 211,363 186,331 88.2 21,541 10.2
Rowan 6 77.499 70,819 91.4 5,979 7.7
Cumberland 7 127.913 94.213 73.7 27.363 21.4
Robeson 7 81,548 29.364 36.0 17,204 21.
Sampson 7 24,552 16,159 65.8 7,701 31.4
Cumberland 8 146,653 75,856 51.7 60,133 41.0
Robeson 23,631 8,622 36.5 8,981 38.0
* G
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TABLE 1 (Ctd.) E
Proportion of Total Population in Split Counties D
by Congressional District for 1997 Plan (HB 586 -- Plan A) z
of
County/City CD Total White % African-Amer. % 2
Mecklenburg 9 292,808 264,604 90.4 21,026 7.2 =
Iredell 10 54,472 48,438 88.9 5,526 10.1 2
Davidson 12 66,684 56,161 84.2 9,846 14.8 e
Forsyth 12 59.112 15,537 26.3 43,105 729 w
Guilford 12 136.057 63.253 46.5 70,114 51.5 pi
Iredell 12 | 38459 28.769 74.8 9.343 243 || 3
Mecklenburg 12 218,625 100,047 45.9 113,442 51.9 :
Rowan 12 | 33,106 21,032 63.5 11,794 356 |:
175
DECLARATION FOR RONALD WEBER, CONTINUED. ..
American. The African-American percentage of the total
population in the counties split across District 1 and another
district is above the district-wide African-American percentage
in four counties. The African-American percentage of the total
population is above 60 percent in Lenoir County and above 50
percent in Pitt, Wayne, and Wilson Counties. Conversely.
Table 1 reports that the African-American percentage of the
total population in the parts of most of those split counties
assigned to another district than District 1 is consistently lower.
For example, the part of Lenoir County assigned to District 3
1s 13.6 percent African-Americanin total population. while the
part of Pitt County allocated to District 3 is 18.1 percent
African-American in total population. The county splits as
they impact the white majority districts in eastern North
Carolina can be divided into two categories: 1) those county
splits for the districts where the intent usually was to provide
African-American voters to shore up the electoral bases of
candidates who might be characterized as candidates of choice
of African-American voters (e.g. Districts 2 and 4), and 2)
those county splits for the district where the intent usually was
to carve out African-American voters so as not to endanger the
electoral bases of the candidates who might not be
characterized as candidates of choice of minority voters (e.g.
District 3). Almost every time there was an opportunity to use
race as the basis for dividing political subdivisions up
politically, the North Carolina Congressional districting plan
does it in the eastern part of the state.
176
DECLARATION FOR RONALD WEBER, CONTINUED. ..
18. Turning next to District 12. the racial make-up
of the parts of the six sub-divided counties assigned to District
I 2 include three with parts over 50 percent African-American
and three in which the African-American percentage 1s under
50 percent. 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 which contribute almost 75
percent of the district's total population are located at the
extremes of the district. The other three county parts
(Davidson, Iredell, and Rowan) have narrow corridors which
were designed to pick up as many African-American persons
from each of those counties to fill out the district to an ideal
sized district. A precinct level map of District 12 shows that all
African-American majority precincts but one in those three
counties have been assigned to the district. Conversely. Table
1 reports that the African-American percentage of the total
population in the parts of those split counties assigned to
another district than District 12 1s consistently lower. For
example, the part of Mecklenburg County assigned to District
9 is 7.2 percent African-Americanin total population. while the
part of Forsyth County allocated to District 5 is 11.1 percent
African-American in total population and the part of Guilford
County assigned to District 6 is 10.2 percent African-
American. The county splits as they impact the white majority
districts adjacent to District 12 in the Piedmont arc those
county splits for the districts where the intent usually was to
carve out African-American voters so as not to endanger the
|
|
|
|
177
DECLARATION FOR RONALD WEBER, CONTINUED. ..
electoral bases of the candidates who might not be
characterized as candidates of choice of minority voters (e.g.
Districts 3. 6. and 9). Almost every time there was an
opportunity to use race as the basis for dividing political
subdivisions up politically, the North Carolina Congressional
districting plan does it in the Piedmont part of the state as well.
19. Table 2 provides further confirmation that race
was the predominant factor in the drawing of the lines for the
North Carolina Congressional districts in 1997. This table
reports the exact same data as in Table 1 except that in Table 2
the data are organized by county rather than Congressional
district. For example. the pattern shown in each of the ten
counties that are split between District 1 and an adjacent
district is one in which most of the time the sub-division was
along racial lines. All ten counties were split along racial lines.
The most dramatic examples from Table 2 include Lenoir
County where 61.1 percent of the total population allocated to
District 1 1s African-American while only 13.6 percent of the
total population assigned to District 3 is African-American.and
Wilson County where 51.0 percent of the total population
allocated to District 1 1s African-American while only 12.0
percent of the total population assigned to District 2 is African-
American. A similar pattern holds in the other eight counties
of District 1. In each of those counties, the population on the
District 1 side of the Congressional district line is more
strongly African-Americanwhile being more strongly white on
the other side of the line in an adjacent district.
TABLE 2 =
Proportion of Total Population in Split Counties &
by County for 1997 Congressional Districting Plan (HB 586 -- Plan A) z
o
County/City CD Total White % African-Amer. % 2
Alamance 5 79.976 60,647 75.8 18,544 23.2 =
Alamance 6 |. ma 25.726 91.1 2.278 gf 2
Beaufort 1 23,714 14,659 61.8 8.948 37.7 > rr
Beaufort 3 18.569 14.290 76.9 4.246 ny | 5
Chatham 4 29,239 22,800 78.0 6.112 20.9 5
Chatham 6 9,520 6,623 69.6 2.733 28.7 2
Craven 1 25.279 14,207 56.2 10,920 43.2 <
Craven 3 56,334 44.453 78.9 10,196 18.1
Cumberland 7 127.913 94.213 73.7 27,363 21.4
by County for 1997 Congressional Districting Plan (HB 586 -- Plan A)
TABLE 2 (Ctd.)
Proportion of Total Population in Split Counties
County/City CD Total White % African-Amer, %
Cumberland 8 146,653 75,856 51.7 60,133 41.0
Davidson 6 59.993 57.135 95.2 2,468 4.1
Davidson i2 66.684 56.161 84.2 9.846 14.8
Forsyth 5 206.766 181,381 87.7 22.997 11.1
Forsyth 12 59.112 15,537 26.3 43.105 72.9
Granville 1 20,717 10,480 50.6 10,106 48.8
Granville 2 17,628 12,589 71.4 4,803 27.2
Guilford 6 211.363 186,331 88.2 21,541 10.2
Guilford 12 136,057 63,253 46.5 70,114 51.5
* Q
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by County for 1997 Congressional Districting Plan (HB 586 -- Plan A)
TABLE 2 (Ctd.)
Proportion of Total Population in Split Counties
County/City CD Total White % African-Amer. %
Iredell 10 54,472 48,438 88.9 5,526 10.1
Iredell 12 38,459 28,769 74.8 9,343 24.3
Jones 1 8,553 5,045 59.0 3,461 40.5
Jones 3 861 642 74.6 216 25.1
Lenoir 1 31,016 11,887 38.3 18,959 61.1
Lenoir 3 26,258 22,435 85.4 3,580 13.6
Mecklenburg 9 292,808 264,604 90.4 21.026 12
Mecklenburg 12 218.625 100.047 45.9 113,442 51.9
Person l 21,001 13.430 64.0 7.307 34.8
*
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TABLE 2 (Ctd.) S$
Proportion of Total Population in Split Counties
by County for 1997 Congressional Districting Plan (HB 586 -- Plan A) =
of
County/City CD Total White % African-Amer. % S
-
o
Person 4 9.179 7,304 79.6 1,799 19.6 2
Pitt 1 49.584 23.676 47.7 25.373 51.2 2
E
Pitt 3 58,340 46,967 80.5 10,548 18.1 © he
Sy 2
Robeson 7 81,548 29,364 36.0 17,204 21.1 =
=
Robeson 8 23.631 8,622 36.5 8,981 38.0 "
Qo
Rowan 6 77,499 70,819 914 3.979 7.7 2
Z
Rowan 12 33,106 21,032 63.5 11,794 35.6 | ©
Sampson 2 22,745 14,114 62.1 7,985 33.1
Sampson 7 24.552 16,159 65.8 7,701 31.4
TABLE 2 (Ctd.) =
Proportion of Total Population in Split Counties *
by County for 1997 Congressional Districting Plan (HB 586 -- Plan A) z
-
County/City CD Total White % African-Amer. % E
Wake 2 185,642 118,648 63.9 62,515 33.7 =
Wake " 237.738 205.363 86.4 25.548 10.7 2
Washington 10.750 5,499 51.2 5.207 48.4 J =
Washington 3 3,247 2.057 63.4 1,159 35.7 w i
Wayne 36,323 17,110 47.1 18.781 eB
Wayne 3 68,343 52,062 76.2 15,012 22.0 2
Wilson 1 43,517 21,008 48.2 22,181 51.0 :
Wilson 2 22,544 19,615 87.0 2,715 120 | :
sr ————————..
185
DECLARATION FOR RONALD WEBER, CONTINUED. ..
20. The pattern shown in each of the six counties
that are split between District 12 and an adjacent district is one
in which most of the time the sub-division was along racial
lines. All six counties were split along racial lines. The most
dramatic examples from Table 2 include Forsyth County where
72.9 percent of the total population allocated to District 12 is
African-American while only 11.1 percent of the total
population assigned to District 5 is African-American, and
Mecklenburg County where 51.9 percent of the total population
allocated to District 12 is African-American while only 7.2
percent of the total population assigned to District 9 is African-
American. Similarly. | find Guilford County where 51.5
percent of the total population allocated to District 12 is
African-American while only 10.2 percent of the total
population assigned to District 9 is African-American. A
similar pattern holds in the other three counties of District 12.
In each of those counties, the population on the District 12 side
of the Congressional district line is more strongly African-
American while being more strongly white on the other side of
the line in an adjacent district. | can infer from these data that
race was a predominant factor in the line drawing for Districts
1 and 12 and the adjacent districts in the 1997 North Carolina
Congressional district plan.
21. I have also examined data related to city and
town splits in 1997 North Carolina Congressional district plan.
These data will be used to determine whether I should alter my
opinion that race was a predominant factor in the construction
184
DECLARATION FOR RONALD WEBER, CONTINUED. ..
of the districts. Using a report titled Places Split by 97 North
Carolina Congressional Districts prepared by Dan Frey. GIS
Analyst. with the North Carolina General Assembly
[Information Systems Division, I created Tables 3 and 4. These
tables are directly comparable to Tables 1 and 2. Note that
these tables include every city or town in North Carolina that
1s split across two or more districts by geography in the 1997
plan. Thus, there are four places where the geographical split
does not involve people on both sides of the line. Furthermore.
there are several others where a small number of people are
split away from a larger number of people by the use of the
precincts in the 1997 Congressional districting plan.
22. According to Table 3. 11 of 13 cities or towns
were split along racial lines to create Congressional district 1.
Nine of the cities or towns split between district 1 and another
district involve placing a majority of the African-American
population into District 1 as displayed in Table 3. When cities
or towns were split to achieve population equality, the racial
composition of the components differ little. When the splits are
tor racial purposes, the differences are large.
23. A similar pattern of splitting cities or towns 1s
shown for District 12. Nine of 13 cities or towns were split
along racial lines to create Congressional district 12. Five of
the cities or towns split between district 12 and another district
involve placing a majority of the African-American population
TABLE 3
Proportion of Total Population in Split Municipalities and Census
Designated Places by Congressional District for 1997 Plan (HB 586 -- Plan A)
City/Town CD Total Non-Af. Amer. % African-Amer. %
Ayden 1 4,590 2,186 47.6 2,404 52.4
Battleboro* 1 280 99 35.4 181 64.6
Fremont 1 1,638 784 47.9 854 52.1
Goldsboro 1 25,734 9.333 38.2 15,901 61.8
Greenville 1 19.249 6.052 31.4 13.197 68.6
Kinston 1 16,328 2,968 18.2 13,360 81.8
New Bern 1 13.921 7,201 517 6,720 48.3
Rocky Mount 1 17,057 2,584 15.1 14.473 84.9
Sharpsburg* 1 482 91 18.9 391 81.1
* G
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TABLE 3 (Ctd.) =
Proportion of Total Population in Split Municipalities and Census 2
Designated Places by Congressional District for 1997 Plan (HB 586 -- Plan A) 5
o
City/Town CD Total Non-Af. Amer. % African-Amer. % 2
Trent Woods 1 299 - 299 100.0 0 0.0 =
Washington I 9,073 4,915 54.2 4,158 458 || 2
Whitakers* 1 464 183 39.4 281 60.6 J =
Wilson 1 26,127 9.355 35.8 16,772 64.2 = =
Battleboro* 2 167 156 93.4 11 6.6 5
Clinton 2 7.313 4,024 55.0 3,289 45.0 | 2
Garner ’, 3,008 2.232 74.2 776 25.8 :
Raleigh 2 107,979 60,848 56.4 47,131 43.6 :
Rocky Mount 2 31,940 22,116 69.2 9,824 30.8
TABLE 3 (Ctd.) =
Proportion of Total Population in Split Municipalities and Census =
Designated Places by Congressional District for 1997 Plan (HB 586 -- Plan A) 5
>
City/Town Ch Total Non-Af. Amer. % African-Amer. %o S
-
Qo
Sharpsburg* 2 1.054 861 31.7 193 18.3 2
Whitakers* 2 396 233 58.8 163 412 || 2
P
Wilson 2 10,803 10,249 94.9 554 5.1 = =
~J
Ayden 3 150 150 100.0 0 0.0 @
~
Fremont 3 72 10 13.9 62 86.1 "
Qo
Goldsboro 3 14,975 11,562 77.2 3,413 22.8
Z
Greenville 3 25,723 23,583 91.7 2,140 8.3 s
Kinston 3 8,967 7,712 86.0 1,255 140 |
Mount Olive* 3 4,581 2,117 47.5 2,404 32.5
TABLE 3 (Ctd.) S
Proportion of Total Population in Split Municipalities and Census *
Designated Places by Congressional District for 1997 Plan (HB 586 -- Plan A) z
o
City/Town CD Total Non-Af. Amer. % African-Amer. % 2
New Bern 3 #40 2,500 75.5 843 | 245 J
Surf City* 3 317 314 99.1 3 0.9 2
Trent Woods 3 2,067 2,067 100.0 0 0.0 2 —
Washington 3 ) 2 100.0 0 00 | 8 5
Garner 4 11,959 10,102 84.5 1,857 15.5 E
Mebane* 4 485 420 86.6 65 13.4 2
Raleigh 4 | 99,973 89,744 89.8 10,229 10.2 :
Burlington 5 36,339 27,580 75.9 8.759 24.1 :
Elkin* 5 3,720 3373 90.7 347 9.3
TABLE 3 (Ctd.) S$
Proportion of Total Population in Split Municipalities and Census 2
Designated Places by Congressional District for 1997 Plan (HB 586 -- Plan A) .
=
City/Town CD Total Non-Af. Amer. % African-Amer. % S
-
Gibsonville* 5 1,480 1,332 90.0 148 10.0 3
Graham 5 7,234 5,857 81.0 1,377 19.0 2
Er
High Point 5 6 6 100.0 0 0.0 © pi
£2
Kernersville 5 10,836 10,230 94.4 606 56 | =
~
Mebane* 5 4.269 3,382 79.2 887 20.8 a
o
Winston-Salem S 89.215 74.885 83.9 14,330 16.1
Zz
Burlington 6 3.159 3,009 95.3 150 4.7 :
Gibsonville* 6 1,961 1,483 75.6 478 244 |
Graham 6 3,192 2,896 90.7 296 9.3
Designated Places by Congressional District for 1997 Plan (HB 586 -- Plan A)
TABLE 3 (Ctd.)
Proportion of Total Population in Split Municipalities and Census
* A
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City/Town CD Total Non-Af. Amer. % African-Amer. %
Greensboro 6 88,441 78,981 89.3 9.460 10.7
High Point 6 37,200 32,833 88.3 4,367 11.7
Kannapolis 6 8,476 7,149 84.3 1,327 15.7
Kernersville 6 0 0 0.0 0 0.0
Lexington 6 2,885 2.522 87.4 363 12.6
Salisbury 6 5,250 4.442 84.6 808 15.4
Spencer 6 8 6 75.0 2 25.0
Thomasville 6 6,909 6,249 90.4 660 9.6
Clinton 7 891 720 80.8 171 19.2
06
1
TABLE 3 (Ctd.)
Proportion of Total Population in Split Municipalities and Census
Designated Places by Congressional District for 1997 Plan (HB 586 -- Plan A)
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-
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City/Town CD Total Non-Af. Amer, % African-Amer. % Zz
©
Fayetteville 7 44 988 34,279 76.2 10.709 238 =
o
Mount Olive* 7 1 0 0.0 I 100.0 Zz
Z
Red Springs 7 58 58 100.0 0 0.0 < x
Surf City* 7 653 662 99.8 1 0.2 @
~
Fayetteville 8 30,707 12,437 40.5 18,270 59.5 a
Oo
Kannapolis EEE Th 17,205 81.1 4,015 189 | 3
Z
Red Springs 8 3.736 1,771 47.4 1,965 526 | &
Weddington* 8 3,803 3,695 97.2 108 28 |
Charlotte 0 213.515 196,172 21.9 17,343 8.1
TABLE 3 (Ctd.) =
Proportion of Total Population in Split Municipalities and Census 0
Designated Places by Congressional District for 1997 Plan (HB 586 -- Plan A) z
of
City/Town CD Total Non-Af. Amer. % African-Amer. % S
ry
=)
Cornelius 9 308 304 98.7 4 1.3 ud
Weddington* 9 0 0 0.0 0 0.0 2
>
Davidson* 10 0 0 0.0 0 0.0 Die
£48
Elkin 10 70 62 88.6 8 14 | 2
~
Mooresville 10 0 0 0.0 0 0.0 A
Oo
Statesville 10 12,324 9,997 81.1 2.327 18.9
2
Troutman 10 1,419 1,024 72.2 395 218 | =
Charlotte 12 182,419 73,935 40.5 108,484 59.5 :
Cornelius 12 2.273 1,752 77.1 521 22.9
TABLE 3 (Ctd.)
Proportion of Total Population in Split Municipalities and Census *
Designated Places by Congressional District for 1997 Plan (HB 586 -- Plan A) z
o
City/Town CD Total Non-Af. Amer. % African-Amer. % 2
Davidson* 12 4,046 3,407 84.2 639 15.8 =
Greensboro 12 95,080 42,236 And 52.844 55.6 2
High Point 12 | 32.290 15.677 43.6 16.613 51.4 . 5
Lexington 12 13.696 9,143 66.8 4,553 33.2 : is
Mooresville 12 8.818 6,687 75.8 2.131 24.2 F
Salisbury 12 17.837 10,521 59.0 7,316 41.0 2
Spencer 12 32H 2,488 77.5 723 22.5 :
Statesville 12 5,243 1,290 24.6 3,953 754 |
Thomasville 12 9,006 5,246 58.3 3,760 41.7
TABLE 3 (Ctd.)
Proportion of Total Population in Split Municipalities and Census
Designated Places by Congressional District for 1997 Plan (HB 586 -- Plan A)
City/Town CD Total Non-Af. Amer. % African-Amer. %
Troutman 12 74 74 100.0 0 0.0
Winston-Salem 12 54,270 12.272 22:6 41,998 77.4
* City or town is split across a county boundary. y p y y vo
l
Source: North Carolina General Assembly, Information Systems Division. All information
is based on that in the General Assembly’s apportionment system. Provided by
Dan Frey. GIS Analyst.
*
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TABLE 4 =
Proportion of Total Population in Split Municipalities and Census 2
Designated places by City or Town for 1997 Plan (HB 586 -- Plan A) =
City/Town CD Total White % African-Amer. % 2
Ayden 1 4,590 2,186 47.6 2.404 52.4 =
Ayden 3 150 150 100.0 0 0.0 2
Battleboro* 1 280 99 35.4 181 64.6 2
Battleboro* | 2 167 156 93.4 11 66 | =
Burlington 5 36,339 27,580 73.9 8,759 24.1 5
Burlington 6 3,159 3,009 93.3 150 4.7 2
Charlotte 9 213.515 196.172 91.9 17,343 8.1 <
Charlotte 12 182.419 73.935 40.5 108.484 59.5 :
Clinton 2 7.313 4,024 55.0 3.289 45.0
TABLE 4 (Ctd.) =
Proportion of Total Population in Split Municipalities and Census Q
Designated places by City or Town for 1997 Plan (HB 586 -- Plan A) z
.
City/Town CD Total White % African-Amer, % >
Clinton 7 891 720 80.8 171 19.2 =
Cornelius 9 308 304 98.7 4 1342
Cornelius 12 2,273 1,752 77.1 521 22.9 2 =
Davidson* 10 0 0 0.0 0 0.0 | = :
Davidson* | 12 4,046 3,407 84.2 639 158 °F
Elkin* 3 3,720 3.373 90.7 347 9.3 2
Elkin* 10 70 62 88.6 8 11.4 3
Fayetteville 7 44,988 34,279 76.2 10,709 23.8 :
Fayetteville 8 30,707 12,437 40.5 18,270 59.5
TABLE 4 (Ctd.) SY
Proportion of Total Population in Split Municipalities and Census *
Designated places by City or Town for 1997 Plan (HB 586 -- Plan A) z
~-
City/Town CD Total White % African-Amer. % 5
9)
Qo
Fremont I 1.638 784 47.9 854 52.1 2
Fremont 3 72 10 139 62 86.1 2
g
Garner 2 3,008 2.232 74.2 776 25.8 = yu
5
Garner 4 11,959 10,102 84.5 1,857 15.5 =
~
Gibsonville* 5 1,480 1,332 90.0 148 10.0 a
o
Gibsonville* 6 1,961 1,483 75.6 478 24.4 2
Z
Goldsboro 1 25,734 9,833 38.2 15,901 61.8 s
Goldsboro 3 14,975 11,562 77.2 3.413 22.8 :
Graham 5 7,234 5,857 81.0 1,377 19.0
TABLE 4 (Ctd.) T
Proportion of Total Population in Split Municipalities and Census 8
Designated places by City or Town for 1997 Plan (HB 586 -- Plan A) z
3
City/Town CD Total White % African-Amer. % 2
Graham 6 3,192 2,896 90.7 296 9.3 =
Greensboro | 6 88.441 78,981 89.3 9.460 107 | 2
Greensboro 12 95,080 42,236 44.4 52,844 55.6 9 re
Greenville 19,249 6,052 31.4 13,197 68.6 | © .
Greenville 3 25.723 23,583 91.7 2,140 8.3 i
High Point 5 6 6 100.0 0 00 || 3
High Point 6 37,200 32.833 88.3 4.367 11.7 :
High Point 12 32.290 15.677 48.6 16.613 514 | :
Kannapolis 6 8.476 7,149 84.3 1327 13.7
TABLE 4 (Cid) =
Proportion of Total Population in Split Municipalities and Census ;
Designated places by City or Town for 1997 Plan (HB 586 -- Plan A) z
—
City/Town CD Total White % African-Amer. % °
=r
©
Kannapolis 8 21,220 17,205 81.1 4,015 18.9 7
pe)
Kemersville | 5 10,836 10,230 94.4 606 56 | 2
Kernersville | 6 0 0 0.0 0 on} Bo
$f
Kinston 1 16,328 2,968 18.2 13,360 81.8 =
~
Kinston 3 8,967 7.712 86.0 1,255 14.0 7
o
Lexington 6 2,885 2,522 87.4 363 126 13
Z
Lexington 12 13.696 9.143 66.8 4,553 332 s
Mebane* 4 485 420 86.0 65 134 |
Mebane* 5 4,269 3.382 79.2 887 20.8
TABLE 4 (Ctd.) 5
Proportion of Total Population in Split Municipalities and Census 0
Designated places by City or Town for 1997 Plan (HB 586 -- Plan A) z
~
City/Town CD Total White % African-Amer. % S
-
=}
Mooresville 10 0 0 0.0 0 0.0
Mooresville 12 8.818 6,687 75.8 2.131 24.2 2
Mount 3 4,581 2.177 47.5 2,404 52.3 © 1
Olive* e
2
Mount 7 1 0 0.0 1 100.0 br
Olive* S
2
New Bern 1 13,921 7,201 51.7 6,720 48.3 =
New Bern 3 3.442 2,599 75.5 843 245 |
Raleigh 2 107.979 60.848 56.4 47,131 43.6
Raleigh 4 99.973 89.744 89.8 10,229 10.2
TABLE 4 (Ctd.) =
Proportion of Total Population in Split Municipalities and Census ¥
Designated places by City or Town for 1997 Plan (HB 586 -- Plan A) %
ey
City/Town CD Total White % African-Amer, % s
ry
Red Springs 7 58 58 100.0 0 0.0 5
~
Red Springs | 8 3.736 1.771 47.4 1.965 52.6 Z
r
Rocky I 17.057 2,584 15.1 14,473 84.9 © 12
Mount = pe
=]
Rocky 2 31,940 22,116 69.2 9.824 30.8 =
Mount S
Salisbury 6 5,250 4,442 84.6 808 154 || 2
=
Salisbury 12 17,837 10,521 59.0 7,316 41.0 S
Sharpsburg* 1 482 91 18.9 391 81.1
Sharpsburg* 2 1,054 861 81.7 193 18.3
TABLE 4 (Ctd.) =
Proportion of Total Population in Split Municipalities and Census *
Designated places by City or Town for 1997 Plan (HB 586 -- Plan A) z
=
City/Town CD Total White % African-Amer. % >
Spencer 6 8 6 75.0 2 25.0 =
Spencer 12 3,211 2,488 77.5 723 22.5 Z
Statesville 10 | 12324 9.997 81.1 2.327 18.9 .
Statesville 12 5.243 1.290 24.6 3.953 75.4 @
Surf City* 3 317 314 99. | 3 09 |
Surf City* 7 653 652 99.8 I 0.2 :
Thomasville 6 6,909 6,249 90.4 660 9.6 :
Thomasville 12 9,006 5.246 58.3 3.760 41.7 :
TABLE 4 (Ctd.) =
Proportion of Total Population in Split Municipalities and Census *
Designated places by City or Town for 1997 Plan (HB 586 -- Plan A) =
5
City/Town | CD Total White % African-Amer. % 5
ry
Trent 299 299 100.0 0 00 | =
Woods z
Z
Trent 3 2,067 2,067 100.0 0 00 {| E
(Go) Woods < S
Troutman 12 74 74 100.0 0 0.0 =
~
Troutman 10 1,419 1,024 72.2 395 27.8 S
Z
Washington 9,073 4,915 54.2 4,158 458 | 2
Washington | 3 2 2 100.0 0 oo: 8
Weddington 8 3,803 3,695 97.2 108 2.8
*
TABLE 4 (Ctd.) =
Proportion of Total Population in Split Municipalities and Census 8
Designated places by City or Town for 1997 Plan (HB 586 -- Plan A) z
~-
City/Town | CD Total White % African-Amer. % S
-
©)
Weddington 9 0 0 0.0 0 0.0 ol
* ~
o
z
Whitakers* 1 464 183 39.4 281 60.6 =
§)
Whitakers* 2 396 233 58.8 163 ny ==
=o)
Wilson 26,127 9,355 35.8 16,772 642 | 7
0
Wilson 2 10,803 10,249 94.9 554 5.1 2
~~
Winston- 5 89,215 74,885 83.9 14,330 16.1 Zz
Salem 3
Winston- 12 54,270 12,272 22.6 41,998 77.4
Salem
* City or town is split across a county boundary.
Source: North Carolina General Assembly, Information Systems Division. All information
is based on that in the General Assembly's apportionment system. Provided by
Dan Frey, GIS Analyst.
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206
DECLARATION FOR RONALD WEBER, CONTINUED. ..
into District 12 as displayed in Table 3. Also the four largest
cities assigned to District 12 are split along racial lines.
24. The above analysis 1s further confirmed by the
listing of split cities and towns in Table 4. Here one can see
how most of the cities and towns assigned to District | are split
along racial lines. Particularly striking are the figures for
Goldsboro, Greenville, Kinston, Rocky Mount, and Wilson.
Table 4 also highlights the racial splits of the cities or towns
assigned to District 12. Again the difference in the figures for
Charlotte, Greensboro. High Point, Statesville, and Winston-
Salem are large. On the other hand. many of the cities and
towns split between other districts do not display large racial
differences (exceptions are Fayetteville and Raleigh).
25. Defendants’ experts point out that the 1997
North Carolina Congressional districting plan relies almost
without exception to the 1990 Voting Tabulation Districts
(VTDs) or precincts as the building blocks for constructing
districts. They note that only two precincts were split in
constructing the 12 districts. One of these two precincts is in
Mecklenburg County and was split to provide a geographical
land bridge to connect two parts of District 9 to each other.
The precinct in discussion is Charlotte Precinct 77 and extends
to the southern county boundary and the state line with South
Carolina. The precinct is a predominantly African-American
majority precinct and the bulk of the people was needed to
create a race-based District 12. Thus. the state split the precinct
207
DECLARATION FOR RONALD WEBER, CONTINUED. ..
placing one non-African-American person in the part of the
precinct in District 9. If that one person is a registered voter
and does vote in a Congressional election. there will be a ballot
secrecy issue for that one voter. The other split precinct is in
Craven County where 23 persons are put in District 3 rather
than District 1 with remainder of the precinct’s residents.
26. The discussion of not splitting precincts by
defendants’ experts misunderstandshow racially homogeneous
precincts are today in North Carolina and other parts of the
nation. For example, both Georgia and South Carolina. split
only a small number of precincts in creating their
Congressional Districting plans of the 1990s but this fact did
not prevent plaintiffs from invalidating Districts 2 and 11 in
Georgia and from attacking District 6 in North Carolina.
Louisiana did not split a single precinct in the creation of the
two plans invalidated by the Hays court in the Western District
of Louisiana. Thus, given the homogeneous racial character of
precincts in North Carolina, it is quite possible to draw districts
in which race predominates using whole precincts.
27. I began to answer the question of whether the
districts in the 1997 North Carolina Congressional districting
plan subordinate race-neutral traditional redistricting principles
when | discussed above the tabular data on the splitting of
counties, cities, and towns. The state of North Carolina
subordinated the splitting of county, city. and town boundaries
to a desire to allocate persons by race to a greater extent than
208
DECLARATION FOR RONALD WEBER, CONTINUED. ..
necessary to comply with the one-person, one-vote standard of
population equality. This was particularly true in the drawing
of Districts 1 and 12 as well as adjacent districts. A total ot 22
counties and 41 cities and towns were split in the drawing of
the 1997 North Carolina Congressional districting plan. for a
total of 63 split political subdivisions. Only six counties and
15 cities and towns were split to create the other districts
(several of the cities and towns were split because they are on
a county boundary and different counties were assigned to
different districts). In the recent past no counties had been split
to create the 11 districts of the 1960s and 1970s. while just four
had been split to construct the 11 districts of the 1980s. The
maximum number of counties needed to be split to fashion an
12 district plan is 11. allowing for one county to be split
between each two districts.
28. A report by David C. Huckabee. "Congressional
Districts: Objectively Evaluating Shapes." ('RS Report for
Congress (Washington: Congressional Research Service, The
Library of Congress), May 24, 1994, also contains information
from other states to compare with the experience of North
Carolina in Congressional districting. Recall that North
Carolina's Congressional District 1 in the 1997 plan has 20
counties. ten of which were split with another district (50
percent) and that District 12 has six counties. all six of which
are split (100.0 percent). This Huckabee report as well as
subsequent data reveals that nationwide. only the original
Florida 3. the original Georgia 2, the original and revised
209
DECLARATION FOR RONALD WEBER, CONTINUED. ..
Louisiana districts 4, the original Louisiana 5 and 6, the current
South Carolina 6. and the original Virginia 3 have a greater
number of split parishes or counties than North Carolina
District 1. Original Louisiana district 4 had 24 split parishes.
original Florida district 3 had 14 split counties, revised
Louisiana district 4 had 13 split parishes, original Georgia
district 2 had 12 split counties, and original Louisiana 5 and 6
as well as current South Carolina 6 and original Virginia 3
had/have 11 split counties. All of these listed districts but
South Carolina 3 have been invalidated by the Federal courts.
29. Huckabee also provides information on the
percentage of split counties allocated to the Congressional
districts of the 1990s. There are a large number of
Congressional districts from around the nation which have 100
percent of the counties split which are allocated to a district.
Most of these are plans involving splits of large counties in the
metropolitan areas of the country and these plans are not
comparable to the North Carolina setting. No single district in
the country is like North Carolina 12 in splitting as many as six
counties and sub-dividing 100 percent of them.
30. Huckabee also provides information on the
number of places having populations of 10,000 or more and
indicates how many of these are split by district lines. In the
1997 plan. North Carolinadistrict 1 has nine such places (either
cities or towns. and six of them are divided between district 1
and another district. District 12 has eight cities or towns
210
DECLARATION FOR RONALD WEBER, CONTINUED. ..
10,000 or more in population. and all eight of them are split
between districts.
31. Another race-neutral traditional redistricting
criterion involves the issue of geographical contiguity. [ have
examined the maps of the 1997 Congressional districting plan
to determine whether the state adhered to geographical
contiguity in the construction of the plans. I find that the plans
are technically contiguous in that parts of geographical
territories are joined together through water areas or narrow
land bridges. A person wishing to traverse Congressional
district 3 by automobile. for example, would have to leave the
district, then go through another district, before returning to
district 3. The best examples of technical contiguity occur in
Beaufort and Pamlico counties where two parts of district 3 are
joined across the Pamlico Sound, in the city of Charlotte where
two parts of district 9 are connected through a split precinct at
the southern edge of Mecklenburg County, and in Guilford
County and the city of High Point where a narrow land bridge
is used to connect Davidson County with the city of
Greensboro in Guilford County. Although the Congressional
districts are technically contiguous, the district lines do not
promote functional contiguity. Anyone serving districts 3. 9,
and 12 in the U.S. Congress will need to travel usually outside
each district in order to traverse the district each is serving in
the most efficient manner.
211
DECLARATION FOR RONALD WEBER, CONTINUED. ..
32. Another race-neutral traditional redistricting
principle involves the issue of geographical compactness. The
issue of geographical compactness can be addressed first by
examining maps of the 1997 Congressional districts. A
statewide map of the 1997 districts and detailed maps of
Districts 1 and 12 demonstrate clearly that Districts 1 and 12 as
well as adjacent districts are oddly shaped and not compact.
33. A second way to assess the compactness of a
Congressional district 1s to use a variety of compactness
measures now standard in political science. These measures
are reported upon in two works--1) Richard H. Pildes and
Richard G. Niemi, "Expressive Harms. 'Bizarre Districts,’ and
Voting Rights: Evaluating Election-District Appearances after
Shaw," Michigan Law Review. Vol. 92 (December 1993). pp.
101-205, and 2) David C. Huckabee, "Congressional Districts:
Objectively Evaluating Shapes." CRS Report for Congress
(Washington: Congressional Research Service, The Library of
Congress), May 24. 1994. The actual computations of the
compactness scores reported in these two works were
conducted by Kimball Brace and Douglas Chapin of Election
Data Services. Inc., Washington. D.C.
34. Three measures of compactness are reported in
the Huckabee report for all 435 Congressional districts in the
U.S. adopted following the release of the 1990 Census of
Population. Huckabee adopts two geographic measures--a
dispersion measure and a perimeter measure -- and one
DECLARATION FOR RONALD WEBER, CONTINUED. ..
population measure. Pildes and Niemi rely on the same two
gcographic compactness measures reported by Huckabee.
Gerald Webster in his report for the defendants in this case use
the same two geographic compactness measures as Pildes and
Niemi as well as Huckabee.
35. Combining informationabout the two measures
of geographical compactness in the Huckabee report with those
in the Webster report I can see that North Carolina's
Congressional District 12 is still the least compact district in
North Carolina on both indicators of geographic compactness
and that District 1 is the second least compact district on the
perimeter measure and the fourth least compact district on the
dispersion measure. In Appendix E of the Huckabee report. he
reports a table containing the two geographic compactness
scores for the bottom ten percent of Congressional districts in
the nation. Using the criterion of having at least one
compactness score in the bottom ten percent, North Carolina 12
would clearly continue in that compilation while North
Carolina 1 would probably not make the list of the worst ten
percent of the districts even though many of the lowest districts
in Huckabee's table have moved up to higher scores will
revised districts. A number of Congressional districts in other
states with lower perimeter or dispersion scores have been
found to be unconstitutional by Federal district courts. North
Carolina 12 is less compact than struck-down Florida 5 on one
indicator, than invalidated Georgia districts 2 and 11 on both
indicators. than unconstitutional Louisiana 4 on one indicator,
19
a
i
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DECLARATION FOR RONALD WEBER, CONTINUED. ..
than invalidated New York 12 on one indicator, than struck-
down Texas districts 18. 29. and 30 on one indicator, and
unconstitutional Virginia 3 on both indicators. I have also
taken the perimeter and dispersion compactness scores from the
Huckabee report and revised the ranking order for the worst
districts on each measure (this process has used the best
information on the two compactness scores for the current
Congressional districts, some of which is contained in the
Webster report). North Carolina 12 ranks either 430 or 431 out
of 435 in compactness using the dispersion measure (I am
unable to determine whether the state of New York increased
the compactness of District 8 when it recently reworked is plan
to remedy the unconstitutionality of District 12). North
Carolina 12 ranks either 432 or 433 of 435 in compactness
using the perimeter measure. Thus, North Carolina 12
continues to be the least compact district in North Carolina and
among the worst in the nation in terms of geographical
compactness.
36. Pildes and Niemi report geographic compactness
scores for the Congressional districts of the 1980s using the
dispersion and perimeter measures. These scores for the old 11
districts in North Carolina are used to compare to the scores for
the current 12 districts in the 1997 plan.! The range on the
*Richard H. Pildes and Richard G. Niemi, “Expressive Harms,
‘Bizarre Districts,” and Voting Rights: Evaluating Election-District
Appearances after Shaw.” Michigan Law Review, Vol. 92 (December 1993),
Table 6. pp. 189-91.
214
DECLARATION FOR RONALD WEBER, CONTINUED. ..
dispersion measure in North Carolina runs from a low of .26 to
a high of .57 and averages .36 across the 11 districts in the
1980s. In the 1997 plan. the range on the dispersion measure
runs from a low of .11 to a high ot .62 and averages .35 across
the current 12 districts. The range on the perimeter measure in
North Carolina runs from a low of .22 to a high of .46 and
averages .30 across the 11 districts in the 1980s. In the 1997
plan, the range on the perimeter measure runs from a low of .04
to a high of .33 and averages .19 across the current 12 districts.
This comparison reveals that the 1997 12 district plan is less
compact overall than the 11 district plan of the 1980s, using the
two standard measures of geographic compactness.
37. A final race-neutral traditional redistricting
criterion involves the issue of regional communities of interest.
I have examined a map of the regions of North Carolina
included in the Stuart report for this case (Figure 5). One of the
clearest distinctions is between the Tidewater, Inner Coastal
Plains, and Piedmont areas of North Carolina. Thus, current
Congressional district 1 is in two principal community of
interest regions of North Carolina. On the other hand, current
District 12 includes parts of six counties all in the Piedmont
Region. Thus, traditional regional communities of interest
were merged in the construction of district 1 in the current
North Carolina Congressional districting plan.
38. To sum up my conclusions about the
predominant use of race and the subordination of race-neutral
A
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DECLARATION FOR RONALD WEBER, CONTINUED. ..
traditional districting principles to race by the state of North
Carolina in the creation of the Congressional districts in 1997,
I find that a significant number of persons are assigned to
districts in eastern North Carolina and the Piedmont Region
based on race. I conclude that race was a predominant factor
in the construction of Districts 1. 3. 9. and 12. To a lesser
extent race also affected the drawing of Districts 5, 6, and 10 in
that certain counties in those districts were split on a racial
basis. I also conclude that race-neutral traditional districting
principles were subordinated in the creation of these districts.
The state of North Carolina did not adhere to compactness in
creating the districts, more counties. cities, and towns were
split than needed in constructing the districts, and community
of interest regions were not followed in the design of the
districts. 1 found districts 3. 9. and 12 to be only technically
contiguous, and that those three districts were not functionally
contiguous.
III. NUMEROSITY AND CONCENTRATION OF
AFRICAN-AMERICAN VOTERS
39. I conclude that the African-Americanvoting age
population in no part of North Carolina is sufficiently
numerous or geographically compact enough to be a majority
of voters using traditional districting principles to draw a
single-member Congressional district. An equitably populated
Congressional district in North Carolina needs a total
population of about 552.386 persons using 1990 Census of
Populationdata. First,an examination of maps and statistical
216
DECLARATION FOR RONALD WEBER, CONTINUED. ..
data at the county, city. and precinct levels by race indicates
that there are is only one potential area where one might locate
enough African-American persons of voting age to create a
geographically compact district. The area is in the northeastern
part of the state located primarily among the counties of the
Inner Coastal Plain region.
40. The best evidence of the difficulty of
constructing such an African-American majority district is
contained in material from the 1997 Section 5 submission of
North Carolina. This material indicates that current
Congressional district 1 does not contain either a majority of
the voting age population or of registered voters who are
African-American. The African-American VAP for District |
1s 46.54 percent and the African-American percentage of the
registered voters in the district is 44.89 percent. | presume that
if the General Assembly could have created a voting age
population majority-minority district in northeastern North
Carolina it would have done so. There are no large cities in the
Inner Coastal Plain region from which to draw a sufficient
number of African-American persons to readily construct a
majority-minority Congressional district (contrast North
Carolina cities with Atlanta, Birmingham, New Orleans. and
Memphis where large African-American population
concentrations exist). Thus, not enough African-American
persons reside in the either the Inner Coastal Plain region to
make up a majority of the eligible voters in a single-member
district for Congress.
217
DECLARATION FOR RONALD WEBER, CONTINUED. ..
IV. ELECTORAL SAFENESS OF THE
CONGRESSIONAL DISTRICTS 1 AND 12
41. To assess the electoral safety of Congressional
Districts 1 and 12 in the North Carolina Congressional
districting plan of 1997, I use electoral history included in the
reports of plaintiffs’ expert Lee Mortimer and defendants’
expert David W. Peterson. In my scholarly work on state
legislative elections, I consider any election in which one
candidate gets 60 percent or more of the total vote among two
candidates as being a non-competitiveelection. Elections won
by less than 60 percent are considered competitive. Students of
congressional elections generally adopt the same threshold for
distinguishing non-competitive from competitive elections.
42. Using electoral history data from the Peterson
report for Congressional district 12, 1 find that within the
boundaries of the district that Peterson estimates that
Democratic candidates won over 60 percent of the vote in two
1988 elections and the 1990 U.S. Senate election between Jesse
Helms and Harvey Gantt. All of these percentages exceed the
level needed to have a competitive Congressional district.
These three percentages all confirm that district 12 is overly
safe for both white and African-American candidates of the
Democratic party in general elections.
43. I have also double-checked the calculations
reported for recent elections in the Mortimer report. Using
218
DECLARATION FOR RONALD WEBER, CONTINUED. ..
whole county statistics, I confirm that Mortimer’s report is
correct. For example, I find that the Democratic candidate for
Auditor Campbell. an African-American, won 63.5 percent of
the vote in the 18 counties of northeastern North Carolina
outlined in Exhibit E of the Mortimer report. This finding
suggests that Congressional District 1 is also overly safe.
sok, [ have also analyzed the 1990 U.S. Senate
Democratic primaries and general elections as well as the 1992
State Auditor Democratic primaries and general elections to
estimate how much white cross-over is available to African-
American candidates running statewide. I have isolated the
analyses down to just the precincts contained in the 20 whole
counties assigned to District 1 and the six whole counties
assigned to District 12. Thus. [ have consciously included
adjacent areas not assigned to either District to achieve a
conservative estimate of white cross-over.
45. For the 20 counties of the area of District 1. this
analysis shows that white cross-over for an African-American
candidate ranges from four to 35 percent in Democratic
primaries and from 23 to 44 percent in general elections. The
figures for the six counties of the area in District 12 show
estimated white cross-over to range from 28 to 42 percent in
Democratic primaries and from 37 to 38 percent in general
elections. These white cross-over figures confirm that usually
Democratic candidates who happen to be African-American
can win enough white cross-over support to go along with
219
DECLARATION FOR RONALD WEBER, CONTINUED. ..
African-American voter support to win comfortably and safely
in the areas of Districts 1 and 12 of the current North Carolina
Congressional districting plan.
46.
CONCLUSION
On the basis of my above analysis, I conclude:
1) that race was the predominant factor used by
the state of North Carolina to draw the
boundaries of the 1997 U.S. Congressional
districts:
(2) that the state of North Carolina in creating
the 1997 U.S. Congressional districting plan
subordinated traditional race-neutral districting
principles. such as compactness, contiguity,
respect for political subdivisions or
communities defined by actual shared interests,
to racial considerations;
(3) that the African-American voting age
population in North Carolina (particularly the
northeastern part of the state) is not sufficiently
large nor geographically concentrated enough to
constitute a potential voter majority using
traditional districting principles to draw a
single-member Congressional district;
220
DECLARATION FOR RONALD WEBER, CONTINUED. ..
(4) that the majority-minority U.S.
Congressional Districts 1 and 12 in the 1997
North Carolina plan is overly safe from the
standpoint of giving a candidate of choice of
African-American voters an opportunity to be
elected, thus questioning whether the plan was
narrowly tailored to satisfy a compelling state
interest.
[ declare under penalty of perjury that the forgoing is
true and correct.
Executed on this twenty third day of March. 1998.
/s/ Ronald E. Weber
221
AFFIDAVIT OF THOMAS DARLING (WITHOUT
ATTACHMENTS) (CD 58)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
Eastern Division
Civil Action No. 04-CV-104-H2
MARTIN CROMARTIE, et al.,
Vv.
JAMES B. HUNT, JR.. in his
capacity as governor
AFFIDAVIT OF THOMAS A. DARLING
Thomas A. Darling, being first duly sworn, deposes and
says:
1. I have a Ph.D. (1994) in Public Administration and’
Policy from the University at Albany, State University of New
York. From 1996 to the present, I have been Assistant
Professor of Government and Public Administration at the
University of Baltimore. 1 also presently serve as Director,
Government and Technology, at the William Donald Schaefer
Center for Public Policy at the University of Baltimore. From
1994 to 1996, I was a Research Associate with the New York
State Forum for Information Resources Management at the
Rockefeller Institute of Government where [ headed a project
related to the electronic transmission of voter registration
information and election results. [ am co-author of three
30
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AFFIDAVIT OF THOMAS DARLING, CONTINUED. ..
articles in professional refereed journals. A current copy of my
curriculum vitae 1s attached.
2. For the past two years, | have been working on a study
of racial gerrymandering in the wake of Shaw v. Reno. My
colleagues in this research are Dr. Carmen Cirincione. Assistant
Professor of Political Science at the University of Connecticut
and Dr. Timothy G. O'Rourke, Teresa M. Fischer Professor of
Citizenship Education at the University of Missouri-St. Louis.
To date, we have written three conference papers on our
research. have one article under submission to a professional
journal, and are preparing a second article for submission.
Points 3 through 4 describe portions of this research as it relates
specifically to North Carolina and these points are jointly
subscribed to by my research colleagues in separate affidavits.
3. Drawing on the Supreme Courts racial gerrymandering
jurisprudence (as set out in Shaw [ and /I. Miller, Bush, and
Abrams), my colleagues and [ have sought to answer the
following question: What is the likelihood that a challenged
district, with a given racial configuration. would emerge from
a redistricting process that selected plans on the basis of
traditional, race-neutral criteria? In a paper presented at the
1997 Annual Meeting of the American Political Science
Association, we offered a computer-intensive methodology to
answer this question. We applied the methodology to the
analysis of 1991-92 congressional redistricting in five states:
Alabama. Georgia, Mississippi. North Carolina, and South
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AFFIDAVIT OF THOMAS DARLING, CONTINUED. ..
Carolina. Attached to Dr. Cirincione’s affidavit in this matter
1s a true copy of this paper, entitled “Does the Supreme Court
Have It Right? Toward a Quantitative Standard for Evaluating
Congressional Redistricting Plans After Shaw v. Hunt and Bush
v. Vera.” Paragraphsa-g below summarize the findings of the
paper as they relate to the unconstitutional 1992 North Carolina
congressional redistricting plan.
a. The methodology relies on computer programs, or
algorithms. that are designed to create, at random, literally
thousands of congressional districting plans for a given state.
Our study uses four algorithms, each of which incorporates a
different set of traditional districting criteria into the map
drawing process. The contiguity algorithm. as the name
suggests. creates contiguous districts of equal population --
building districts piece by piece, using census block groups as
the basic unit of construction. (There are about 5.700 census.
block groups in North Carolina.) The county integrity
algorithm. attempts to create districts that avoid dividing
counties. The compactness algorithm ignores jurisdictional
integrity and, instead, attempts to draw districts that are
reasonably compact; for our purposes, that means districts that
look like rectangles or boxes. The county integrity and
compactness algorithm seeks to create compact districts
comprised of whole counties (with county integrity given
greater weight than compactness).
224
AFFIDAVIT OF THOMAS DARLING, CONTINUED. ..
b. For each of the five states in our study, we
generated 5.000 plans for each of the four algorithms. These
100,000 plans. with 820.000 districts provide a baseline against
which we can judge redistricting plans actually adopted.
Because our algorithms do not take race into account, their
results can be used to assess whether an “adopted plan” has, in
fact, subordinated traditional criteria to race. By comparing an
adopted plan to randomly generated plans, we can estimate the
likelihood that a plan with a specific number of black majority
districts would emerge from a race-neutral redistricting process.
If, for a particular state, the computer-generated plans do not
contain as many black majority districts as the adopted plan, we
can infer that the real mapmakers had to undertake a concerted
effort to find such districts. Equally important, we can also
assess whether an adopted plan elevates race over traditional
criteria by comparing the characteristics of the adopted plan --
with respect, say. to county integrity and compactness -- to the
characteristics of randomly generated plans. We assume that
an adopted plan has been driven by racial considerations if it
performs significantly worse on traditional criteria than the
plans generated by our race-neutral algorithms.
c. ForNorth Carolina, our study produced 5,000 plans
for each of the four algorithms. Of the 240,000 districts in the
20.000 computer-generateddistricting plans, none is a majority
African American majority district. In fact, the closest our
algorithms came to producing a majority black district is a plan
with a district containing a 47.1 percent black population (43.9
225
AFFIDAVIT OF THOMAS DARLING, CONTINUED. ..
percent voting age population). Overall, 6,180 of the 20,000
the computer-generated plans contained a single African
American influence district -- defined as one in which 40
percent or more of the population 1s African American. None
of the computer-generated plans contained more than one
influence district. It is clear that race was a factor in drawing
the congressional districting plan in North Carolina. It is very
difficult to draw a plan containing one, let alone two majority
African American districts without considering race.
d. While the 1992 plan contained fewer split counties
than all of the plans generated by the contiguity algorithm and
most of the plans generated by the compactness algorithm, the
1992 plan divided more counties than all 10,000 plans created
by the county integrity and county integrity/compactness
algorithms. On average, these 10,000 plans split only 10.2
counties: the 1992 plan divided 44 counties, or four times as
many counties as the average plan generated by our algorithms
giving weight to county lines. Indeed, under the 1992 plan,
District 1 by itself split 19 counties. while District 12 divided
10. Our computer analysis suggests that the 1992 map gave
very little weight to the preservation of county lines.
e. With regard to compactness. none of the 240,000
computer-generated districts was as non-compactas District 12
in the 1992 plan. In contrast, one-third of the computer-
generated plans contained at least one district as non-compact
as District 1. according to our circle measure of compactness.
226
AFFIDAVIT OF THOMAS DARLING, CONTINUED. ..
(See the text of the paper for a discussion of the compactness
measures used for our analysis.) These findings plainly suggest
that compactness was subordinated to race in the creation of
District 12.
f. While the 1992 plan did not pair any incumbents,
less than 5 percent of the computer-generated plans did not do
so -- indicating that incumbency protection was a criterion in
the map drawing process. But it must be noted that none of the
computer-generated plans without paired incumbents contained
any majority black districts. Thus, while the 1992 plan might
have weighted incumbency, race appears to have been a more
important factor.
g. Our findingsled us to conclude. for North Carolina,
that “it is very difficult, if not impossible, to draw two African
American majority districts and to adhere to traditional
districting principles such as compactness and jurisdictional
integrity. Beyond this point, moreover, it is highly unlikely
that strict adherence to a race neutral redistricting process
would yield even a single majority African American district,
let alone two.” (By way of contrast, our study concluded that
“a race-neutral redistricting process could produce a black
majority district” in Alabama and that there is “a fairly strong
likelihood that race-neutral redistricting would lead to the
creation of an African American majority district” in
Mississippi.)
gs
5
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tw
us
-
227
AFFIDAVIT OF THOMAS DARLING, CONTINUED. ..
4. The findings in the 1997 APSA Paper have relevance
for the evaluation of the 1998 North Carolina congressional
plan.
a. Race is a driving force in the 1998 North Carolina
congressional plan. As noted above, a race-neutral redistricting
process 1s not likely to yield a congressional plan with a single
majority black district or to lead to a plan with two 40-percent
black districts. The 1998 plan contains both a 50.3 percent
black district (the 1st) and a 46.7 percent black district (the
12th). These figures indicate that race was given substantial
weight in the configuration of districts.
b. In our 1997 study, the algorithms taking county
integrity into account split, on average. only 10 counties.
(Though not reported in the paper, the two algorithms giving
weight to county lines, at most, divided only 11 counties; some
plans split as few as 6 counties.) The 1998 plan splits 22
counties. Moreover, 16 of the 22 divided counties are
associated with District 1 (which splits 10 of its 20 counties)
and District 12 (which divides up all 6 of its constituent
counties). Thus. the 1998 plan divides counties unnecessarily
and the excessive division is closely linked to the preservation
of substantial black population percentages in Districts 1 and
12.
c. In 1992, there were only six states in which
congressional district lines split as many as 10 counties. These
228
AFFIDAVIT OF THOMAS DARLING, CONTINUED. ..
states were Florida (District 3), Georgia (2, 8), Louisiana (4. 3.
6). North Carolina (1. 3. 10, 12), South Carolina (6). and
Virginia (3). (These data are reported in David C. Huckabee.
Congressional Districts: Objectively Evaluating Shapes
(Washington, DC: Congressional Research Service. Library of
Congress. 1994), Appendix B.) Since 1992, courts have
invalidated racially gerrymandering district lines in every one
of these states, except South Carolina. Revised plans have
substantially reduced instances of split counties; thus. the
remedial order of the district court in Georgia. upheld in
Abrams. reduced the number of divided counties in the Georgia
congressional map to 6, as compared to 26 in the invalidated
1992 map. Similarly, revised district lines in Louisiana split
only six parishes overall. In sharp contrast. the 1998 North
Carolina plan divides 10 counties in District 1 alone and 22
counties overall, strongly suggesting that county integrity has
been sacrificed to other considerations.
d. Among 1992 congressional districts, North
Carolina's 12th District had a dispersion score of .045 (433 out
of 435) and a perimeter score of .014 (431 out of 435). (Scores
for all states appear in Huckabee, Appendix A. The dispersion
measure is the ratio of the area of the district to the smallest
circumscribing circle. The perimeter measure is the ratio of the
area of the district to the area of a circle with the same
perimeter as the district.) The 1998 version of District 12 has
a dispersion score of .109 and a perimeter score of .041. If the
1992 rankings had remained unchanged, the new version of the
A
c
u
229
AFFIDAVIT OF THOMAS DARLING, CONTINUED. ..
12th would still stand as the 430th least compact district on the
dispersion measure and it would rank 423 on the perimeter
measure. Plainly stated. the 12th District remains one of the
very least compact congressional districts in the nation.
This the 23d day of March, 1998.
/s/ Thomas A. Darling
Sworn to and subscribed before me this
23d day of March. 1998.
/s/ [illegible]
Notary Public
My commission expires 07/01/2001
[This page intentionally left blank]
FEE
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231
AFFIDAVIT OF CARMEN CIRCINCIONE (WITHOUT
ATTACHMENTS) (CD 59)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
Eastern Division
Civil Action No. 04-CV-104-H2
MARTIN CROMARTIE, et al.,
JAMES B. HUNT, JR., in his official
capacity as governor
<
N
a
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w
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AFFIDAVIT OF CARMEN CIRINCIONE
Carmen Cirincione, being first duly sworn deposes and
says:
I. I hold a Ph.D. in Public Administration and Policy
(1992) from the State University of New York at Albany.
From 1994 to the present, I have been Assistant Professor of
Political Science at the University of Connecticut (Storrs); from
1992 to 1994.1 was Assistant Professor of Political Science at
Clemson University. I am the co-author of a scholarly book
and author or co-author of eight articles in professional
journals. A current copy of my curriculum vitae is attached.
2. For the past two years, I have been working on a study
of racial gerrymandering in the wake of Shaw v. Reno. My
colleagues in this research are Dr. Thomas Darling. Assistant
AFFIDAVIT OF CARMEN CIRCINCIONE, CONTINUED. ..
Professor of Government and Public Administration at the
University of Baltimore and Dr. Timothy G. O'Rourke, Teresa
M. Fischer Professor of Citizenship Educationaat the University
of Missouri-St. Louis. To date, we have written three
conference papers on our research, have one article under
submission to a professional journal, and are preparing a
second article for submission. Points 3 through 4 describe
portions of this research as it relates specifically to North
Carolina and these points are jointly subscribed to by my
research colleagues in separate affidavits.
3. Drawing on the Supreme Court’s racial gerrymandering
jurisprudence (as set out in Shaw [ and 11, Miller. Bush, and
Abrams), my colleagues and I have sought to answer the
following question: What is the likelihood that a challenged
district, with a given racial configuration, would emerge from
a redistricting process that selected plans on the basis of
traditional, race-neutral criteria? In a paper presented at the
1997 Annual Meeting of the American Political Science
Association. we offered a computer-intensive methodology to
answer this question. We applied the methodology to the
analysis of 1991-92 congressional redistricting in five states:
Alabama, Georgia. Mississippi, North Carolina. and South
Carolina. Attached to this affidavitis a true copy of this paper.
entitled “Does the Supreme Court Have It Right? Toward a
Quantitative Standard for Evaluating Congressional
Redistricting Plans After Shaw v. Hunt and Bush v. Vera.”
Paragraphs a-g below summarize the findings of the paper as
|
BS
1
9
L
S
i
D
AFFIDAVIT OF CARMEN CIRCINCIONE, CONTINUED. ..
they relate to the unconstitutional 1992 North Carolina
congressional redistricting plan.
a. The methodology relies on computer programs, or
algorithms, that are designed to create, at random, literally
thousands of congressional districting plans for a given state.
Our study uses four algorithms, each of which incorporates a
different set of traditional districting criteria into the map
drawing process. The contiguity algorithm, as the name
suggests, creates contiguous districts of equal population --
building districts piece by piece, using census block groups as
the basic unit of construction. (There are about 5,700 census
block groups in North Carolina.) The county integrity
algorithm, attempts to create districts that avoid dividing
counties. The compactness algorithm ignores jurisdictional
integrity and. instead, attempts to draw districts that are
reasonably compact: for our purposes, that means districts that -
look like rectangles or boxes. The county integrity and
compactness algorithm seeks to create compact districts
comprised of whole counties (with county integrity given
greater weight than compactness).
b. For each of the five states in our study, we
generated 5.000 plans for each of the four algorithms. These
100.000 plans. with 820.000 districts, provide a baseline
against which we can judge redistricting plans actually adopted.
Because our algorithms do not take race into account, their
results can be used to assess whether an “adopted plan” has, in
254
AFFIDAVIT OF CARMEN CIRCINCIONE, CONTINUED. ..
fact, subordinated traditional criteria to race. By comparing an
adopted plan to randomly generated plans, we can estimate the
likelihood that a plan with a specitic number of black majority
districts would emerge from a race-neutral redistricting process.
If, for a particular state, the computer-generated plans do not
contain as many black majority districts as the adopted plan. we
can infer that the real mapmakers had to undertake a concerted
effort to find such districts. Equally important, we can also
assess whether an adopted plan elevates race over traditional
criteria by comparing the characteristics of the adopted plan --
with respect, say, to county integrity and compactness -- to the
characteristics of randomly generated plans. We assume that
an adopted plan has been driven by racial considerations if it
performs significantly worse on traditional criteria than the
plans generated by our race-neutral algorithms.
c. For North Carolina,our study produced 5,000 plans
for each of the four algorithms. Of the 240,000 districts in the
20,000 computer-generateddistricting plans, none is a majority
African American majority district. In fact. the closest our
algorithms came to producing a majority black districts a plan
with a district containing a 47.1 percent black population (43.9
percent voting age population). Overall, 6,180 of the 20,000
the computer-generated plans contained a single African
American influence district -- defined as one in which 40
percent or more of the population is African American. None
of the computer-generated plans contained more than one
influence district. It is clear that race was a factor in drawing
r
o
(U
S
W
h
AFFIDAVIT OF CARMEN CIRCINCIONE, CONTINUED. ..
the congressional districting plan in North Carolina. It is very
difficult to draw a plan containing one, let alone two majority
African American districts without considering race.
d. While the 1992 plan contained fewer split counties
than all of the plans generated by the contiguity algorithm and
most of the plans generated by the compactness algorithm, the
1992 plan divided more counties than all 10.000 plans created
by the county integrity and county integrity/compactness
algorithms. On average, these 10,000 plans split only 10.2
counties; the 1992 plan divided 44 counties, or four times as
many counties as the average plan generated by our algorithms
giving weight to county lines. Indeed. under the 1992 plan,
District 1 by itself split 19 counties, while District 12 divided
10. Our computer analysis suggests that the 1992 map gave
very little weight to the preservation of county lines.
e. With regard to compactness, none of the 240,000
computer-generated districts was as non-compactas District 12
in the 1992 plan. In contrast, one-third of the computer-
generated plans contained at least one district as non-compact
as District 1, according to our circle measure of compactness.
(See the text of the paper for a discussion of the compactness
measures used for our analysis.) These findings plainly suggest
that compactness was subordinated to race in the creation of
District 12.
236
AFFIDAVIT OF CARMEN CIRCINCIONE, CONTINUED. ..
f. While the 1992 plan did not pair any incumbents.
less than 5 percent of the computer-generated plans did not do
so -- indicating that incumbency protection was a criterion In
the map drawing process. But it must be noted that none of the
computer-generated plans without paired incumbents contained
any majority black districts. Thus, while the 1992 plan might
have weighted incumbency, race appears to have been a more
important factor.
g. Our findings led us to conclude, for North Carolina.
that “it is very difficult, if not impossible, to draw two African
American majority districts and to adhere to traditional
districting principles such as compactness and jurisdictional
integrity. Beyond this point, moreover, it is highly unlikely
that strict adherence to a race neutral redistricting process
would yield even a single majority African American district.
let alone two.” (By way of contrast, our study concluded that
“a race-neutral redistricting process could produce a black
majority district” in Alabama and that there is “a fairly strong
likelihood that race-neutral redistricting would lead to the
creation of an African American majority district” In
Mississippi.)
4. The findings in the 1997 APSA Paper have relevance
for the evaluation of the 1998 North Carolina congressional
plan.
iv
U
f
=
a
237
AFFIDAVIT OF CARMEN CIRCINCIONE, CONTINUED. ..
a. Race is adriving force in the 1998 North Carolina
congressional plan. As noted above, a race-neutral redistricting
process is not likely to yield a congressional plan with a single
majority black district or to lead to a plan with two 40-percent
black districts. The 1998 plan contains both a 50.3 percent
black district (the 1st) and a 46.7 percent black district (the
12th). These figures indicate that race was given substantial
weight in the configuration of districts.
b. In our 1997 study, the algorithms taking county
integrity into account split. on average, only 10 counties.
(Though not reported in the paper, the two algorithms giving
weight to county lines. at most, divided only 11 counties; some
plans split as few as 6 counties.) The 1998 plan splits 22
counties. Moreover. 16 of the 22 divided counties are
associated with District 1 (which splits 10 of its 20 counties)
and District 12 (which divides up all 6 of its constituent.
counties). Thus. the 1998 plan divides counties unnecessarily
and the excessive division is closely linked to the preservation
of substantial black population percentages in Districts 1 and
12.
c. In 1992. there were only six states in which
congressional district lines split as many as 10 counties. These
states were Florida (District 3), Georgia (2, 8), Louisiana (4. 5.
6). North Carolina (1. 3. 10. 12), South Carolina (6). and
Virginia (3). (These data are reported in David C. Huckabee.
Congressional Districts: Objectively Evaluating Shapes
AFFIDAVIT OF CARMEN CIRCINCIONE, CONTINUED. ..
(Washington, DC: Congressional Research Service, Library of
Congress, 1994), Appendix B.) Since 1992, courts have
invalidated racially gerrymandering district lines in every one
of these states, except South Carolina. Revised plans have
substantially reduced instances of split counties; thus, the
remedial order of the district court in Georgia, upheld in
Abrams, reduced the number of divided counties in the Georgia
congressional map to 6. as compared to 26 in the invalidated
1992 map. Similarly, revised district lines in Louisiana split
only six parishes overall. In sharp contrast, the 1998 North
Carolina plan divides 10 counties in District 1 alone and 22
counties overall, strongly suggesting that county integrity has
been sacrificed to other considerations.
d. Among 1992 congressional districts, North
Carolina’s 12th District had a dispersion score of .045 (433 out
of 435) and a perimeter score of .014 (431 out of 435). (Scores
for all states appear in Huckabee, Appendix A. The dispersion
measure is the ratio of the area of the district to the smallest
circumscribing circle. The perimeter measure is the ratio of the
area of the district to the area of a circle with the same
perimeter as the district.) The 1998 version of District 12 has
a dispersion score of .109 and a perimeter score of .041. If the
1992 rankings had remained unchanged, the new version of the
12th would still stand as the 430th least compact district on the
dispersion measure and it would rank 423 on the perimeter
measure. Plainly stated. the 12th District remains one of the
very least compact congressional districts in the nation.
AFFIDAVIT OF CARMEN CIRCINCIONE, CONTINUED. ..
This the 23rd day of March. 1998.
1€ /s/ Carmen Cirincione
1e Sworn to and subscribed before me this
in : 23rd day of March, 1998.
.d | /s/ [illegible]
it Notary Public
2 : My commission expires 06-30-2002
240
[This page intentionally left blank]
241
AFFIDAVIT OF TIMOTHY O’ROURKE (WITHOUT
ATTACHMENTS) (CD 60)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
Eastern Division
Civil Action No. 04-CV-104-H2
MARTIN CROMARTIE, et al.,
JAMES B. HUNT, JR., in his
capacity as governor
)
)
)
)
)
)
AFFIDAVIT OF TIMOTHY G. O'ROURKE
Timothy G. O'Rourke, being first duly sworn, deposes and
says:
I. I have a Ph.D. (1977) in political science from Duke
University. [| presently serve as the Teresa M. Fischer
Professor of Citizenship Education at the University of
Missouri-St. Louis: in that position, | hold a joint appointment
as professor in the Department of Educational Leadership and
Policy Studies and in the Department of Political Science.
From 1992 to 1995, I was professor and chair of the
Department of Political Science at Clemson University, and,
before that. held academic appointments at the University of
Virginia and Campbell College (now University) in North
Carolina. For two decades, I have been studying and writing
about representation and redistricting issues. My published
242
AFFIDAVIT OF TIMOTHY O’ ROURKE, CONTINUED. ..
work includes The Impact of Reapportionment (1980), named
by CHOICE as one of the Outstanding Academic Books of
1980; articles on the federal Voting Rights Act in the Virginia
Law Review, the University of Richmond Law Review, and
Journal of Law and Politics; and a chapter in Bernard
Groffman and Chandler Davidson's Controversies in Minority
Voting: The Voting Rights Act in Perspective (Brookings
Institution, 1992). I have written specifically about North
Carolina's now invalidated 1992 congressional redistricting
plan in “Shaw v. Reno: The Shape of Things to Come,” 26
Rutgers Law Journal 723-73 (1995): and “Shaw v. Reno and
the Hunt for Double Cross-Overs.” 28 PS: Political Science
and Politics 36-41 (1995). I have testified before both U.S.
House and Senate committees on various representational
questions and have served as an expert witness in voting rights
litigation, including the 1994 trial of Shaw v. Hunt. My
testimony in the Georgia racial gerrymandering case was
credited by the U.S. Supreme Court in its 1995 decision in
Miller v. Johnson. Since the early 1980s, I have regularly
taught a graduate/undergraduate political science course
entitled “Voting Rights and Representation.” A current copy
of my curriculum vitae is attached.
2. For the past two years. | have been working on a study
of racial gerrymandering in the wake of Shaw v. Reno. My
colleagues in this research are Dr. Carmen Cirincione, Assistant
Professor of Political Science at the University of Connecticut
and Dr. Thomas Darling, Assistant Professor of Government
~
hy
243
AFFIDAVIT OF TIMOTHY O’ROURKE, CONTINUED. ..
and Public Administration at the University of Baltimore. To
date, we have written three conference papers on our research,
have one article under submission to a professional journal, and
are preparing a second article for submission. Points 3 through
4 describe portions of this research as it relates specifically to
North Carolina and these points are jointly subscribed to by my
research colleagues in separate affidavits.
3. Drawing on the Supreme Courts racial gerrymandering
jurisprudence (as set out in Shaw [ and II. Miller, Bush; and
Abrams), my colleagues and I have sought to answer the
following question: What is the likelihood that a challenged
district, with a given racial configuration. would emerge from
a redistricting process that selected plans on the basis of
traditional, race-neutral criteria? In a paper presented at the
1997 Annual Meeting of the American Political Science
Association, we offered a computer-intensive methodology to
answer this question. We applied the methodology to the
analysis of 1991-92 congressional redistricting in five states:
Alabama, Georgia, Mississippi, North Carolina, and South
Carolina. Attached to this affidavit is a true copy of this paper,
entitled “Does the Supreme Court Have It Right? Toward a
Quantitative Standard for Evaluating Congressional
Redistricting Plans After Shaw v. Hunt and Bush v. Vera.”
Paragraphs a-g below summarize the findings of the paper as
they relate to the unconstitutional 1992 North Carolina
congressional redistricting plan.
244
AFFIDAVIT OF TIMOTHY O’ ROURKE, CONTINUED. ..
a. The methodology relies on computer programs. or
algorithms, that are designed to create, at random. literally
thousands of congressional districting plans for a given state.
Our study uses four algorithms, each of which incorporates a
different set of traditional districting criteria into the map
drawing process. The contiguity algorithm, as the name
suggests, creates contiguous districts of equal population --
building districts piece by piece, using census block groups as
the basic unit of construction. (There are about 5.700 census
block groups in North Carolina.) The county integrity
algorithm, attempts to create districts that avoid dividing
counties. The compactness algorithm ignores jurisdictional
integrity and, instead, attempts to draw districts that are
reasonably compact; for our purposes, that means districts that
look like rectangles or boxes. The county integrity and
compactness algorithm seeks to create compact districts
comprised of whole counties (with county integrity given
greater weight than compactness).
b. For each of the five states in our study. we
generated 5.000 plans for each of the four algorithms. These
100.000 plans, with 820,000 districts. provide a baseline
against which we can judge redistricting plans actually adopted.
Because our algorithms do not take race into account, their
results can be used to assess whether an “adopted plan” has, in
fact. subordinated traditional criteria to race. By comparing an
adopted plan to randomly generated plans. we can estimate the
likelihood that a plan with a specific number of black majority
AFFIDAVIT OF TIMOTHY O’ ROURKE, CONTINUED. ..
districts would emerge from a race-neutral redistricting process.
If, for a particular state, the computer-generated plans do not
contain as many black majority districts as the adopted plan. we
can infer that the real mapmakers had to undertake a concerted
effort to find such districts. Equally important, we can also
assess whether an adopted plan elevates race over traditional
criteria by comparing the characteristics of the adopted plan --
with respect. say. to county integrity and compactness -- to the
characteristics of randomly generated plans. We assume that
an adopted plan has been driven by racial considerations if it
performs significantly worse on traditional criteria than the
plans generated by our race-neutral algorithms.
c. For North Carolina, our study produced 5,000 plans
for each of the four algorithms. Of the 240,000 districts in the
20.000 computer-generateddistricting plans, none is a majority
African American majority district. In fact, the closest our .
algorithms came to producing a majority black district is a plan
with a district containing a 47.1 percent black population (43.9
percent voting age population). Overall, 6,180 of the 20,000
the computer-generated plans contained a single African
American influence district -- defined as one in which 40
percent or more of the population is African American. None
of the computer-generated plans contained more than one
influence district. It is clear that race was a factor in drawing
the congressional districting plan in North Carolina. It is very
difficult to draw a plan containing one, let alone two majority
African American districts without considering race.
246
AFFIDAVIT OF TIMOTHY O’ ROURKE, CONTINUED. ..
d. While the 1992 plan contained fewer split counties
than all of the plans generated by the contiguity algorithm and
most of the plans generated by the compactness algorithm, the
1992 plan divided more counties than all 10,000 plans created
by the county integrity and county integrity/compactness
algorithms. On average. these 10,000 plans split only 10.2
counties; the 1992 plan divided 44 counties, or four times as
many counties as the average plan generated by our algorithms
giving weight to county lines. Indeed, under the 1992 plan,
District 1 by itself split 19 counties, while District 12 divided
10. Our computer analysis suggests that the 1992 map gave
very little weight to the preservation of county lines.
e. With regard to compactness, none of the 240,000
computer-generated districts was as non-compactas District 12
in the 1992 plan. In contrast, one-third of the computer-
generated plans contained at least one district as non-compact
as District 1, according to our circle measure of compactness.
(See the text of the paper for a discussion of the compactness
measures used for our analysis.) These findings plainly suggest
that compactness was subordinated to race in the creation of
District 12.
f. While the 1992 plan did not pair any incumbents,
less than 5 percent of the computer-generated plans did not do
so -- indicating that incumbency protection was a criterion in
the map drawing process. But it must be noted that none of the
computer-generated plans without paired incumbents contained
vi
y
y
247
AFFIDAVIT OF TIMOTHY O’ROURKE, CONTINUED. ..
any majority black districts. Thus. while the 1992 plan might
have weighted incumbency, race appears to have been a more
important factor.
g. Our findings led us to conclude, for North Carolina,
that “it 1s very difficult. if not impossible, to draw two African
American majority districts and to adhere to traditional
districting principles such as compactness and jurisdictional
integrity. Beyond this point, moreover. it is highly unlikely
that strict adherence to a race neutral redistricting process
would yield even a single majority African American district,
let alone two.” (By way of contrast, our study concluded that
“a race-neutral redistricting process could produce a black
majority district” in Alabama and that there is “a fairly strong
likelihood that race-neutral redistricting would lead to the
creation of an African American majority district” in
Mississippi.)
4. The findings in the 1997 APSA Paper have relevance
for the evaluation of the 1998 North Carolina congressional
plan.
a. Race isa driving force in the 1998 North Carolina
congressional plan. As noted above. a race-neutral redistricting
process is not likely to yield a congressional plan with a single
majority black district or to lead to a plan with two 40-percent
black districts. The 1998 plan contains both a 50.3 percent
black district (the 1st) and a 46.7 percent black district (the
248
AFFIDAVIT OF TIMOTHY O’ROURKE, CONTINUED. ..
12th). These figures indicate that race was given substantial
weight in the configuration of districts.
b. In our 1997 study, the algorithms taking county
integrity into account split, on average, only 10 counties.
(Though not reported in the paper, the two algorithms giving
weight to county lines, at most, divided only 11 counties: some
plans split as few as 6 counties.) The 1998 plan splits 22
counties. Moreover, 16 of the 22 divided counties are
associated with District 1 (which splits 10 of its 20 counties)
and District 12 (which divides up all 6 of its constituent
counties). Thus, the 1998 plan divides counties unnecessarily
and the excessive division is closely linked to the preservation
of substantial black population percentages in Districts 1 and
12.
c. In 1992, there were only six states in which
congressional district lines split as many as 10 counties. These
states were Florida (District 3), Georgia (2. 8). Louisiana (4, 5,
6), North Carolina (1, 3, 10, 12), South Carolina (6). and
Virginia (3). (These data are reported in David C. Huckabee,
Congressional Districts: Objectively Evaluating Shapes
(Washington. DC: Congressional Research Service. Library of
Congress, 1994), Appendix B.) Since 1992. courts have
invalidated racially gerrymandering district lines in every one
of these states except South Carolina. Revised plans have
substantially reduced instances of split counties; thus, the
remedial order of the district court in Georgia. upheld in
249
AFFIDAVIT OF TIMOTHY O’ ROURKE, CONTINUED. ..
Abrams. reduced the number of divided counties in the Georgia
congressional map to 6. as compared to 26 in the invalidated
1992 map. Similarly. revised district lines in Louisiana split
only six parishes overall. In sharp contrast, the 1998 North
Carolina plan divides 10 counties in District 1 alone and 22
counties overall, strongly suggesting that county integrity has
been sacrificed to other considerations.
d. Among 1992 congressional districts. North
Carolina's 12th District had a dispersion score of .045 (433 out
of 435) and a perimeter score of .014 (431 out of 435). (Scores
for all states appear in Huckabee, Appendix A. The dispersion
measure 1s the ratio of the area of the district to the smallest
circumscribing circle. The perimeter measure is the ratio of the
area of the district to the area of a circle with the same
perimeter as the district.) The 1998 version of District 12 has
a dispersion score of .109 and a perimeter score of .041. If the
1992 rankings had remained unchanged, the new version of the
1 2th would still stand as the 430th least compact district on the
dispersion measure and it would rank 423 on the perimeter
measure. Plainly stated, the 12th District remains one of the
very least compact congressional districts in the nation.
5. Readily observable characteristicsof Districts 1 and 12
reveal that traditional redistricting principles were subordinated
to race in the configuration of those districts.
250
AFFIDAVIT OF TIMOTHY O’ ROURKE, CONTINUED. ..
a. Apart from being oddly shaped, District 12 is the
only district, among 12. that contains no “whole” counties.
District 12 not only divides six counties, it also splits the
populations of eight cities (Charlotte, Greensboro, High Point.
Lexington, Salisbury. Statesville, Thomasville, and Winston-
Salem) and several towns.
b. In the counties District 12 traverses, it takes in
nearly every precinct with a black population in excess of 40
percent (according to a map prepared by plaintiffs’ counsel on
the General Assembly’s public access terminal).
c. District 12 bisects Mecklenburg County, whose
population (511.433) makes it nearly large enough to be a
district by itself. As a consequence of the configuration of
District 12. the District 9 portion of Mecklenburg County is
divided between western and eastern wings, tied together by a
strip of land less than two miles wide (District 9 stretches over
1171 square miles). This band is the result of splitting
Charlotte Precinct 77 -- one of only two precincts split by the
redistricting plan. Precinct 77 contains 3,461 persons. 86
percent of whom are black. The 1998 redistricting plan
attaches the northern half of Precinct 77 and all but one of its
3,461 persons to District 12 and leaves the southern half of the
precinct -- and but a single person -- to provide the essential
connecting link between the two wings of District 9. The
splitting of Precinct 77 closely resembles what the Supreme
Court condemned in Miller v. Johnson, 63 U.S.L.W. 4726, at
wy
V
i
o
on
J
I
oT
MLR
Re
vi
t
251
AFFIDAVIT OF TIMOTHY O’ROURKE, CONTINUED. ..
4728, 4730-31 (1995). that is. the use of “land bridges” and
split precincts in order to effect a sorting out of persons along
racial lines.
d. Districts 1 and 3 are “interwoven.” with District 1
sending two long tentacles into the southern section of District
3. District 1, aside from splitting 10 of its 20 counties, divides
the populations of six cities (Goldsboro, Greenville, Kinston,
New Bern, Washington, and Wilson) and several towns.
This the 23d day of March. 1998.
/s/ Timothy G. O'Rourke
Sworn to and subscribed before me this
23d day of March. 1998.
/s/ Lois Raley
Notary Public
My commission expires: 11-19-01
LOIS RALEY
Notary Public - State of Missouri
City of St. Louis
My Commission Expires Nov. 19, 2001
252
[This page intentionally left blank]
253
AFFIDAVIT OF MARTIN B. MCGEE (WITH ALL ATTACHMENTS
EXCEPT MAPS (EXHIBITS M,N, O & P WHICH WERE LODGED
WITH THE COURT ON AUGUST 27,1998 AS MAPS 1, 2,3 & 4))
(CD61)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
RALEIGH DIVISION
Civil Action No. 4.96-CV-104-BO(3)
MARTIN CROMARTIE, et al..
Plaintiffs,
VS.
JAMES B. HUNT, JR., in his
official capacity as Governor
of the State North Carolina, ef al..
)
)
)
)
)
)
)
)
Defendants. )
AFFIDAVIT OF MARTIN B. McGEE
Martin B. McGee, being duly sworn, deposes and
] declares:
[ am a resident of Cabarrus County, where I practice
law in Concord. NC with the firm of Williams, Boger, Grady,
Davis and Tittle. P.A. 1 am also one of the attorneys for the
plaintiffs in this action and in the recent past have had primary
responsibility for plaintiffs’ representation due to the surgery
and convalescence of my co-counsel, Robinson O. Everett.
254
AFFIDAVIT OF MARTIN B. MCGEE, CONTINUED. ..
In the course of my preparation for submission of a
reply to the Defendants’ motion for summary judgment. [ had
occasion to obtain from the public access oftice of the General
Assembly maps and various supporting data relating to the
1997 congressional redistricting plan. [ am attaching herewith
various Exhibits which I have obtained trom Dan Frey. GIS
Analyst, with the North Carolina Assembly.
1, Exhibit A- Demographic information related to
Precinct 11 in Guilford County.
2. Exhibit B- Demographic information related to
Precinct 14 in Guilford County.
3. Exhibit C- Demographic information related to
Precinct 17 in Guilford County.
bs Exhibit D- Demographic information related to the
Brunson Elementary School Precinct (1408) in Forsyth
County.
5 Exhibit E- Demographic information related to the
Hanes Community Center Precinct (1422) in Forsyth
County.
6. Exhibit F- Demographic informationrelated to the
Latham Elementary School Precinct (1427) in Forsyth
County.
N
o
w
h
(0
)
AFFIDAVIT OF MARTIN B. MCGEE, CONTINUED. ..
10.
14.
Exhibit G- Demographic information related to
Charlotte Precinct 10 in Mecklenburg County.
Exhibit H- Demographic information related to
Charlotte Precinct 21 in Mecklenburg County.
Exhibit I- Demographic information related to
Charlotte Precinct 38 in Mecklenburg County.
Exhibit J- Demographic information related to
Charlotte Precinct 77 in Mecklenburg County.
Exhibit K- A list of precincts split by 1997
congressional districts.
Exhibit L- A list of towns and cities split by 1997 |
congressional districts.
Exhibit M- Map of Twelfth District shaded by
minority concentrations.
Exhibit N- Map of Guilford County shaded by
minority concentrations and marked by Democratic
registration.
256
AFFIDAVIT OF MARTIN B. MCGEE, CONTINUED. ..
13. Exhibit O- Map of Forsyth County shaded by
minority concentrations and marked by Democratic
registration.
16. Exhibit P- Map of Mecklenburg County shaded by
minority concentrations and marked by Democratic
registration.
Further affiant sayeth not.
/s/ Martin B. McGee
Subscribed and sworn to before me
this 23rd day of March, 1998.
/s/ Anita Robinson
Notary Public Expires 10-28-2002
257
AFFIDAVIT OF MARTIN B. MCGEE, CONTINUED. ..
Population of GB-11*(0111)
Guilford County (81)
GB-11 * (0111)
Area:
Perimeter:
Assigned to:
Units number:
Total Pop.:
White Pop.:
Black Pop.:
Am. Indian Pop.:
Asian Pop.:
Other Population:
Hispanic Pop.:
Total Voting Age Pop.:
White Voting Age Pop.:
Black Voting Age Pop:
Am. Indian Voting Age
Asian Voting Age Pop.:
Other Voting Age Pop.:
Hispanic Voting Age Pop.:
Total Registered Voters:
Registered Whites:
Registered Blacks:
Registered Others:
Democrats:
Republican:
McGee Ex A
0.8215 sq.mi.
4.2708 mi.
6
205714
2.015 (100%)
1,625 (80.65%)
354 (17.57%)
12 (0.60%)
17 (0.84%)
7 (0.33%)
25 (1.24%)
1.828 (90.72%)
1.466 (80.20%)
327 (17.89%)
Pop.: 11 (0.60%)
17 (0.93%)
7 (0.38%)
25 (1.37%)
1.420 (70.47%)
1.262 (88.87%)
154 (10.85%)
4 (0.28%)
885 (62.32%)
400 (28.17%)
258
AFFIDAVIT OF MARTIN B. MCGEE, CONTINUED. ..
Unaffiliated: 135 (9.51%)
Senatorial Race. Dem. 1990: 505 (67.51%)
Senatorial Race, Rep. 1990: 243 (32.49%)
Lt. Gov.. Dem. 1988: 449 (61.68%)
Lt. Gov.. Rep. 1988: 279 (38.32%)
Ct. of Appeals. Dem. 1988: 347 (52.98%)
Ct. of Appeals, Rep.1988: 308 (47.02%)
259
AFFIDAVIT OF MARTIN B. MCGEE, CONTINUED. ..
Population of GB-14%(0114) McGee Ex B
Guilford County (81)
GB-14 *(0114)
Area:
Perimeter:
Assigned to:
Units number:
Total Pop.:
White Pop...
Black Pop.:
Am. Indian Pop.:
Asian Pop.:
Other Population:
Hispanic Pop.:
Total Voting Age Pop.:
White Voting Age Pop.:
Black Voting Age Pop:
Am. Indian Voting Age Pop.:
Asian Voting Age Pop.:
Other Voting Age Pop.:
Hispanic Voting Age Pop.:
Total Registered Voters:
Registered Whites:
Registered Blacks:
Registered Others:
Democrats:
Republican:
0.6573 sq.mi.
3.4115 mi.
6
203595
5,417 (100%)
4,478 (82.67%)
823 (15.19%)
25 (0.46%)
69 (1.27%)
22 (0.41%)
67 (1.24%)
5.307 (97.97%)
4,385 (82.63%)
809 (15.24%)
25 (0.47%)
67 (1.26%)
21 (0.40%)
66 (1.24%)
3.536 (65.28%)
2.737 (77.40%)
776 (21.95%)
23 (0.65%)
2.056 (58.14%)
930 (26.30%)
260
AFFIDAVIT OF MARTIN B. MCGEE, CONTINUED. ..
Unaffiliated: 530 (15.5
Senatorial Race. Dem. 1990: 1.434 (86.91%)
Senatorial Race. Rep. 1990: 216 (13.09%)
Lt. Gov., Dem. 1988: 870 (65.66%)
Lt. Gov., Rep. 1988: 455 (34.34%)
Ct. of Appeals, Dem. 1988: 776 (63.92%)
Ct. of Appeals, Rep.1988: 438 (36.08%)
261
AFFIDAVIT OF MARTIN B. MCGEE, CONTINUED. ..
Population of GB-17%(0117) McGee Ex C
Guilford County (81)
GB-17 * (0117)
Area:
Perimeter:
Assigned to:
Units number:
Total Pop.:
White Pop.:
Black Pop.:
Am. Indian Pop.:
Asian Pop.:
Other Population:
Hispanic Pop.:
Total Voting Age Pop.:
White Voting Age Pop.:
Black Voting Age Pop:
Am. Indian Voting Age Pop.:
Asian Voting Age Pop.:
Other Voting Age Pop.:
Hispanic Voting Age Pop.:
Total Registered Voters:
Registered Whites:
Registered Blacks:
Registered Others:
Democrats:
Republican:
84 (5.18%)
5 (0.14%)
44 (1.24%)
3.077 (86.63%)
2.673 (86.87%)
266 (8.64%)
130.2%)
123 (4.00%)
2 (0.06%)
36 (1.17%)
2.365 (66.58%)
2.174 (91.92%)
180 (7.61%)
11 (0.47%)
1.463 (61.86%)
677 (28.63%)
262
AFFIDAVIT OF MARTIN B. MCGEE, CONTINUED. .
Unaffiliated: 225 (9.51%)
Senatorial Race, Dem. 1990: 777 (65.08%)
Senatorial Race. Rep. 1990: 417 (34.92%)
Lt. Gov.. Dem. 1988: 713 (61.68%)
Lt. Gov., Rep. 1988: 443 (38.32%)
Ct. of Appeals, Dem. 1988: 604 (58.19%)
Ct. of Appeals, Rep. 1988: 434 (41.81%)
AFFIDAVIT OF MARTIN B. MCGEE, CONTINUED. ..
Population of Brunson Elementary School*(1408)
Forsyth County (67)
McGee Ex D
Brunson Elementary School * (1408)
Area:
Perimeter:
Assigned to:
Units number:
Total Pop.:
White Pop.:
Black Pop.:
Am. Indian Pop.:
Asian Pop.:
Other Population:
Hispanic Pop.:
Total Voting Age Pop.:
White Voting Age Pop.:
Black Voting Age Pop:
Am. Indian Voting Age Pop.:
Asian Voting Age Pop.:
Other Voting Age Pop.:
Hispanic Voting Age Pop.:
Total Registered Voters:
Registered Whites:
Registered Blacks:
Registered others:
Democrats:
0.5383 sq.m.
4.4986 mi.
5
19491]
2,303 (100%)
1,630 (70.78%)
641 (27.83%)
4 (0.17%)
25 (1.09%)
3 (0.13%)
30 (1.30%)
1,986 (86.24%)
1,448 (72.91%)
514 (25.88%)
4 (0.20%)
17 (0.86%)
3 (0.15%)
23 (1.16%)
1,413 (61.35%)
1,147 (81.17%)
260 (18.40%)
6 (0.42%)
929 (65.75%)
264
AFFIDAVIT OF MARTIN B. MCGEE, CONTINUED. ..
Republican: 316 (22.36%)
Unaffiliated: 168 (11.89%)
Senatorial Race, Dem. 1990: 572 (75.46%)
Senatorial Race, Rep. 1990: 186 (24.54%)
Lt. Gov., Dem. 1988: 537 (66.30%)
Lt. Gov., Rep. 1988: 273 (33.70%)
Ct. of Appeals, Dem.1988: 478 (65.84%)
Ct. of Appeals. Rep. 1988: 248 (34.16%)
265
AFFIDAVIT OF MARTIN B. MCGEE, CONTINUED. ..
Population of Hanes Community Center*(1422)
McGee Ex E
Forsyth County (67)
Hanes Community Center * (1422
Area:
Perimeter:
Assigned to:
Units number:
Total Pop.:
White Pop.:
Black Pop.:
Am. Indian Pop.:
Asian Pop.:
Other Population:
Hispanic Pop.:
Total Voting Age Pop.:
White Voting Age Pop.:
Black Voting Age Pop:
Am. Indian Voting Age Pop.:
Asian Voting Age Pop.:
Other Voting Age Pop.:
Hispanic Voting Age Pop.:
Total Registered Voters:
Registered Whites:
Registered Blacks:
Registered Others:
Democrats:
2.3607 sq.mi.
6.6935 mi.
5
18116
6,044 (100%)
4,029 (66.66%)
1,938 (32.06%)
8 (0.13%)
56 (0.93%)
13 (0.22%)
46 (0.76%)
5,473 (90.55%)
3.825 (69.89%)
1,576 (28.80%)
7 (0.13%)
54 (0.99%)
11 (0.20%)
38 (0.69%)
2.375 (39.30%)
1.369 (57.64%)
1.004 (42.27%)
2 (0.08%)
1.805 (76%)
266
AFFIDAVIT OF MARTIN B. MCGEE, CONTINUED. ..
Republican: 461 (19.41%)
Unaffiliated: 109 (4.59%)
Senatorial Race, Dem. 1990: 1,182 (75.77%)
Senatorial Race, Rep. 1990: 378 (24.23%)
Lt. Gov., Dem. 1988: 1,101 (71.68%)
Lt. Gov., Rep. 1988: 435 (28.32%)
Ct. of Appeals, Dem. 1988: 909 (69.18%)
Ct. of Appeals, Rep. 1988: 405 (30.82%)
267
AFFIDAVIT OF MARTIN B. MCGEE, CONTINUED . ..
Population of Latham Elementary School*(1427)
McGee Ex F
Forsyth County (67)
Latham Elementary School * (1427)
Area:
Perimeter:
Assigned to:
Units number:
Total Pop.:
White Pop.:
Black Pop.:
Am. Indian Pop.:
Asian Pop.:
Other Population:
Hispanic Pop.:
Total Voting Age Pop.:
White Voting Age Pop.:
Black Voting Age Pop:
Am. Indian Voting Age Pop.:
Asian Voting Age Pop.:
Other Voting Age Pop.:
Hispanic Voting Age Pop.:
Total Registered Voters:
Registered Whites:
Registered Blacks:
Registered Others:
Democrats:
1.2612 sq. mi.
4.7609 mi.
5
16612
2,955 (100%)
2,249 (78.77%)
566 (19.82%)
20 (0.70%)
18 (0.63%)
2 (0.07%)
10 (0.35%)
2,332 (81.68%)
1,895 (81.26%)
406 (17.41%)
13 (0.56%)
16 (0.69%)
2 (0.09%)
7 (0.30%)
1,603 (56.15%)
1,387 (86.53%)
212 (13.23%)
4 (0.25%)
1,046 (65.25%)
268
AFFIDAVIT OF MARTIN B. MCGEE, CONTINUED. ..
Republican: 416 (25.95%)
Unaffiliated: 141 (8.80%)
Senatorial Race, Dem. 1990): 509 (54.85%)
Senatorial Race. Rep. 1990: 419 (45.15%)
Lt. Gov., Dem. 1988: 572 (53.86%)
Lt. Gov.. Rep. 1988: 490 (46.14%)
Ct. of Appeals. Dem. 1988: 547 (55.87%)
Ct. of Appeals, Rep. 1988: 432 (44.13%)
AFFIDAVIT OF MARTIN B. MCGEE, CONTINUED...
Population of Charlotte Pct. 10*(0110)
Mecklenburg County (119)
Charlotte Pct. 10*(0110)
Area:
Perimeter:
Assigned to:
Units number:
Total Pop.:
White Pop.:
Black Pop.:
Am. Indian Pop.:
Asian Pop.:
Other Population:
Hispanic Pop.:
Total Voting Age Pop.:
White Voting Age Pop.
Black Voting Age Pop:
Am. Indian Voting Age Pop.:
Asian Voting Age Pop.:
Other Voting Age Pop.:
Hispanic Voting Age Pop.:
Total Registered Voters:
Registered Whites:
Registered Blacks:
Registered Others:
Democrats:
McGee Ex G
69737
2.248 (100%)
2,006 (89.23%)
155 (6.90%)
48 (2.14%)
17 (0.76%)
22 (0.98%)
33 (1.41%)
1,808 (80.43%)
1,647 (91.10%)
98 (5.42%)
34 (1.88%)
11 (0.61%)
18 (1.00%)
29 (1.60%)
1.483 (65.97%)
1,409 (95.01%)
64 (4.32%)
10 (0.67%)
941 (63.45%)
270
AFFIDAVIT OF MARTIN B. MCGEE, CONTINUED. ..
Republican: 407 (27.44%)
Unaffiliated: 135 (9.10%)
Senatorial Race, Dem. 1990: 714 (73.01%)
Senatorial Race, Rep. 1990: 264 (26.99%)
Lt. Gov., Dem. 1988: 574 (62.66%)
Lt. Gov., Rep. 1988: 342 (37.34%)
Ct. of Appeals, Dem. 1988: 410 (55.78%)
Ct. of Appeals, Rep.1988: 325 (44.22%)
AFFIDAVIT OF MARTIN B. MCGEE, CONTINUED. ..
Population of Charlotte Pct. 21%(0121)
Mecklenburg County (119)
Charlotte Pct. 21 * (0121)
Area:
Perimeter:
Assigned to:
Units number:
Total Pop.:
White Pop.:
Black Pop.:
Am. Indian Pop.:
Asian Pop.:
Other Population:
Hispanic Pop.:
Total Voting Age Pop.:
White Voting Age Pop.:
Black Voting Age Pop:
Am. Indian Voting Age Pop.:
Asian Voting Age Pop.:
Other Voting Age Pop.:
Hispanic Voting Age Pop.:
Total Registered Voters:
Registered Whites:
Registered Blacks:
Registered others:
Democrats:
McGee Ex H
0.7523 sq.mi.
3.9950 mu.
9
69591
3,139 (100%)
2,683 (85.47%)
330 (10.51%)
25 (0.80%)
68 (2.17%)
33 (1.05%)
83 (2.64%)
2,577 (82.10%)
2,282 (88.55%)
202 (7.84%)
18 (0.70%)
51 (1.98%)
24 (0.93%)
54 (2.10%)
1,793 (57.12%)
1,667 (92.97%)
118 (6.58%)
8 (0.45%)
1,066 (59.45%)
272
AFFIDAVIT OF MARTIN B. MCGEE, CONTINUED. ..
Republican: 612 (34.13%)
Unaffiliated: 115 (6.41%)
Senatorial Race, Dem. 1990: 663 (60.11%)
Senatorial Race, Rep. 1990: 440 (39.89%)
Lt. Gov., Dem. 1988: 553 (52.32%)
Lt. Gov., Rep. 1988: 504 (47.68%)
Ct. of Appeals, Dem.1988: 425 (48.30%)
Ct. of Appeals, Rep.1988: 455 (51.70%)
273
AFFIDAVIT OF MARTIN B. MCGEE, CONTINUED. ..
Population of Charlotte Pct. 38%(0138)
McGee Ex 1
Mecklenburg County (119)
Charlotte Pct. 38 * (0138)
Area:
Perimeter:
Assigned to:
Units number:
Total Pop.:
White Pop.:
Black Pop.:
Am. Indian Pop.:
Asian Pop.:
Other Population:
Hispanic Pop.:
Total Voting Age Pop.:
White Voting Age Pop.:
Black Voting Age Pop:
Am. Indian Voting Age Pop.:
Asian Voting Age Pop.:
Other Voting Age Pop.:
Hispanic Voting Age Pop.:
Total Registered Voters:
Registered Whites:
Registered Blacks:
Registered Others:
Democrats:
0.7095 sq.mi.
3.8506 mi.
9
69605
3,457 (100%)
2,936 (84.93%)
397 (11.48%)
18 (0. 52%)
71 (2.05%)
35 (1.01%)
90 (2.60%)
2,974 (86.03%)
2,576 (86.62%)
299 (10.05%)
14 (0.47%)
57 (1.92%)
28 (0.94%)
753(2.32%)
2,086 (60.34%)
1,895 (90.84%)
176 (8.44%)
15 (0.72%)
1,081 (51.82%)
274
AFFIDAVIT OF MARTIN B. MCGEE, CONTINUED. ..
Republican: 822 (39.41%)
Unaffiliated: 183 (8.77%)
Senatorial Race, Dem. 1990: 634 (54.33%)
Senatorial Race, Rep. 1990: 533 (45.67%)
Lt. Gov., Dem. 1988: 534 (44.95%)
Lt. Gov., Rep. 1988: 654 (55.05%)
Ct. of Appeals, Dem. 1988: 410 (40.67%)
Ct. of Appeals, Rep.1988: 598 (59.33%)
AFFIDAVIT OF MARTIN B. MCGEE, CONTINUED. ..
Population of Charlotte Pct. 77 * (0177)
Mecklenburg County (119)
Charlotte Pct. 77 * (0177)
Area:
Perimeter:
Assigned to:
Units number:
Total Pop.:
White Pop.:
Black Pop.:
Am. Indian Pop.:
Asian Pop.:
Other Population:
Hispanic Pop.:
Total Voting Age Pop.:
White Voting Age Pop.:
Black Voting Age Pop:
Am. Indian Voting Age Pop.:
Asian Voting Age Pop.:
Other Voting Age Pop.:
Hispanic Voting Age Pop.:
Total Registered Voters:
Registered Whites:
Registered Blacks:
Registered Others:
Democrats:
4.4853 sq.mi.
15.6393 mi.
Split
69375
3,461 (100%)
440 (12.71%)
2,987 (86.30%)
6 (0.17%)
21 (0.61%)
7 (0.20%)
17 (0.49%)
2,309 (66.71%)
351 (15.20%)
1,928 (83.50%)
5 (0.22%)
19 (0.82%)
6 (0.26%)
13 (0.56%)
1,586 (45.82%)
227 (14.31%)
1,355 (85.44%)
4 (0.25%)
1,370 (86.38%)
McGee Ex J
276
AFFIDAVIT OF MARTIN B. MCGEE, CONTINUED. ..
Republican: 157 (9.90%)
Unaffiliated: 59 (3.72%)
Senatorial Race, Dem. 1990: 997 (94.06%)
Senatorial Race, Rep. 1990: 63 (5.94%)
Lt. Gov.. Dem. 1988: 515 (70.36%)
Lt. Gov., Rep. 1988: 217 (29.64%)
Ct. of Appeals, Dem. 1988: 446 (69.36%)
Ct. of Appeals, Rep.1988: 197 (30.64%)
North Carolina Voter Precincts Split by 97 Congressional Districts
McGee Ex K
>
ry
-
©
z
=
©
Percent =
VTE Key County Precinct | District | Total Pop | Black Pop Black >
-
37.049.0809 Craven Rhems* 3 23 23 100.0% Z
==
37.049.0809 Craven Rhems* 1 571 308 53.9% 2
Par A
37.119.0177 | Mecklenburg | Charlotte 12 3,460 2.987 86.3% Q 5,
Pct. 77% %
8
37.119.0177 | Mecklenburg | Charlotte 9 1 0 0.0% Z
Pct. 77* Z
om
5
*Generated by the North Carolina General Assembly, Information Systems Division. All information
is based on that in the General Assembly's apportionment system. Provided by Dan Frey, GIS
Analyst.
273
[This page intentionally left blank]
Places Split by 97 NC Congressional Districts*
McGee Ex L
Place CE Name District Total Pop Black Pop Percent Black
0140 Ayden town 3 150 0 0.0%
0140 Ayden town 1 4,590 2,404 52.4%
0195 Battleboro town 1 280 181 64.6%
0195 Battleboro town 2 167 11 6.6%
0390 Burlington city 5 36,339 8,759 24.1%
0390 Burlington city 6 3.139 150 4.7%
*Generated by the North Carolina Assembly, Information Systems Division. All information is
based on that in the General Assembly’s apportionment system. Provided by Dan Frey, GIS
Analyst.
*
*
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Place CE Name District Total Pop Black Pop Percent Black
0480 Charlotte city 9 213.315 17,343 8.1%
0480 Charlotte city 12 182,419 108,484 59.5%
0535 Clinton city 7 891 171 19.2%
0535 Clinton city 2 7,313 3,289 45.0%
0600 Cornelius town 9 308 4 1.3%
0600 Cornelius town 12 22713 521 22.9%
0660 Davidson town 10 0 0
0660 Davidson town 12 4,046 639 15.8%
0815 Elkin town 5 3,720 347 9.3%
*Generated by the North Carolina Assembly, Information Systems Division. All information is
based on that in the General Assembly's apportionment system. Provided by Dan Frey, GIS
Analyst.
*
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IN
NI
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Place CE Name District Total Pop Black Pop Percent Black ~
=)
0815 Elkin town 10 70 8 11.4% o
-
0910 Fayetteville city 7 44,988 10,709 23.8% 2
0910 Fayetteville city 8 30,707 18,270 59.5% =
=
0960 Fremont town 3 72 62 86.1% .
=
0960 Fremont town l 1,638 854 52.1% 2.
rb
0975 Garner town 4 11,939 1,857 15.5% ¢) RS
ml
0975 Garner town ¢ 3,008 776 25.8% 3
1010 Gibsonville 5 1,480 148 10.0% 3
town =
[e3)
¥
*Generated by the North Carolina Assembly, Information Systems Division. All information is
based on that in the General Assembly’s apportionment system. Provided by Dan Frey, GIS
Analyst.
Place CE Name District Total Pop Black Pop Percent Black
1010 Gibsonville 6 1,961 478 24.4%
town
1035 Goldsboro city 1 25,734 15,901 61.8%
1035 Goldsboro city 3 14,975 3,413 22.8%
1045 Graham city 5 7.234 1.377 19.0%
1045 Graham city 6 3.192 206 9.3%
1065 Greensboro city 12 95,080 52,844 55.6%
1065 Greensboro city 6 88,441 9,460 10.7%
1070 Greenville city 1 19,249 13,197 68.6%
*Generated by the North Carolina Assembly, Information Systems Division. All information is
based on that in the General Assembly’s apportionment system. Provided by Dan Frey, GIS
Analyst.
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Place CE Name District Total Pop Black Pop Percent Black —-
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1070 Greenville city 3 25.723 2,140 8.3% ®
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1193 High Point city 5 6 0 0.0% Q
1195 High Point city 6 37,200 4,367 11.7% =
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1195 High Point city 12 32,290 16,613 51.4% >
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320 Kannapolis city 6 8,476 1,327 15.7% 2
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1320 Kannapolis city 8 21.220 4.015 18.9% 0 &
1340 Kernersville 5 10,836 606 5.6% 2
town 2
=
1340 Kernersville 6 0 0 Zz
town a
*Generated by the North Carolina Assembly, Information Systems Division. All information is
based on that in the General Assembly’s apportionment system. Provided by Dan Frey, GIS
Analyst.
>
Place CE Name District Total Pop Black Pop Percent Black =
©
1355 Kinston city 3 8,967 1,255 14.0% 2
=
1355 Kinston city 1 16,328 13,360 81.8% 2
1450 Lexington city 6 2,885 363 12.6% &
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1450 Lexington city 12 13,696 4,553 33.2% >
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1640 Mebane city 4 485 65 13.4% =
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1640 Mebane city 5 4,269 887 20.8% Q +
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1700 Mooresville 10 0 0 a
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1700 Mooresville 12 8,818 2.131 24.2% a.
town d
*Generated by the North Carolina Assembly, Information Systems Division. All information is
based on that in the General Assembly's apportionment system. Provided by Dan Frey, GIS
Analyst.
Place CE Name District Total Pop Black Pop Percent Black
1745 Mount Olive 3 4,581 2,404 52.5%
town
1745 Mount Olive 7 1 1 100.0%
town
1770 New Bern city 3 3,442 843 24.5%
1770 New Bern city 1 13,921 6,720 48.3%
2020 Raleigh city 2 107,979 47,131 43.6%
2020 Raleigh city 4 09.973 10,229 10.2%
2040 Red Springs 7 58 0 0.0%
town
*Generated by the North Carolina Assembly, Information Systems Division. All information is
based on that in the General Assembly’s apportionment system. Provided by Dan Frey, GIS
Analyst.
*
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Place CE Name District Total Pop Black Pop Percent Black
2040 Red Springs 8 3,736 1,965 52.6%
town
2115 Rocky Mount 1 17,057 14,473 84.9%
city
2115 Rocy Mount 2 31,940 9,824 30.8%
city
2195 Salisbury city 6 5,250 808 15.4%
2195 Salisbury city 12 17,837 7,316 41.0%
2260 Sharpsburg 1 482 391 81.1%
town
*Generated by the North Carolina Assembly, Information Systems Division. All information is
based on that in the General Assembly’s apportionment system. Provided by Dan Frey, GIS
Analyst.
*
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Place CE Name District Total Pop Black Pop Percent Black a
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2260 Sharpsburg 2 1,054 193 18.3% a”
town -
2
2370 Spencer town 6 8 2 25.0% 2
pg
2370 Spencer town 12 3,211 723 22.5% “
Z
2430 Statesville city 10 12,324 2.527 18.9% pu
2430 Statesville city 12 5.243 3.953 75.4% = oo
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2467 Surt City town 3 3i7 3 0.9% J
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2467 Surf City town 7 653 0.2% 2
2510 | Thomasville : 6,909 660 9.6% 2
city i.
*Generated by the North Carolina Assembly, Information Systems Division. All information is
based on that in the General Assembly’s apportionment system. Provided by Dan Frey, GIS
Analyst.
>
Place CE Name District Total Pop Black Pop Percent Black “
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2510 Thomasville 12 9,006 3,760 41.7% >
" = city .
2535 Trent Woods 1 299 0 0.0% 2
town %
2535 Trent Woods 3 2,067 0 0.0% z
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2545 Troutman town 10 1,419 395 27.8% A 2
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2545 Troutman town 12 74 0 0.0% % 3
2655 Washington 3 2 0 0.0% 2
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*Generated by the North Carolina Assembly, Information Systems Division. All information is
based on that in the General Assembly's apportionment system. Provided by Dan Frey, GIS
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Place CE Name District Total Pop Black Pop Percent Black -
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20655 Washington 9.073 4,158 45.8% oh
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2687 Weddington 8 3,803 108 2.8% 2
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2687 Weddington 9 0 0 ud
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2725 Whitakers town 1 464 281 60.6% a 3
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2725 Whitakers town 2 396 163 41.2% 5
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2760 Wilson city 1 26,127 16,772 64.2% Z
Z
2760 Wilson city 2 10,803 554 5.1% 55
©
*Generated by the North Carolina Assembly, Information Systems Division. All information is
based on that in the General Assembly’s apportionment system. Provided by Dan Frey, GIS
Analyst.
Place CE Name District Total Pop Black Pop Percent Black
2785 Winston-Salem 12 54,270 41,998 77.4%
city
2785 Winston-Salem 5 89,215 14,330 16.1%
city
*Generated by the North Carolina Assembly, Information Systems Division. All information is
based on that in the General Assembly’s apportionment system. Provided by Dan Frey, GIS
Analyst.
*
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291
PLAINTIFFS’ CONDITIONAL MOTION TO STRIKE THE
AFFIDAVITS OF ROY COOPER, III AND EDWIN MCMAHAN
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
Raleigh Division
Civil Action No. 4:96-CV-104-BO(3)
MARTIN CROMARTIE, et al.,
Plaintiffs,
VS.
JAMES B. HUNT, JR., in his official
capacity as Governor of the State of
North Carolina, et al.,
Defendants.
S
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CONDITIONAL MOTION TO STRIKE
THE AFFIDAVITS OF ROY COOPER, III
AND EDWIN McMAHAN
Plaintiffs respectfully show that Defendants have moved
to strike the affidavit of John Weatherly submitted by
Plaintiffs. In support thereof, Defendants have contended that
his statements as a legislator, with respect to the intent of a
statute, are inadmissible under North Carolina law. In support
of that contention they have cited several precedents. Plaintiffs
submit that, if accepted, the same argument would render
inadmissible the affidavits offered by Senator Cooper and
Representative McMahan;
Cooper and McMahan.
292
CONDITIONAL MOTION TO STRIKE, CONTINUED. ..
WHEREFORE, Plaintiffs move that, in the event that the
Defendants’ motion to strike
Weatherly’s affidavit. the Court also strike the affidavits of
Respectfully submitted. this the 23rd day of March, 1998.
/s/ Robinson O. Everett
Everett & Everett
N.C. State Bar No.: 1385
As Attorney for the Plaintiffs
P.O. Box 586
Durham, NC 27702
Telephone: (919)-682-5691
Williams, Boger, Grady, Davis
& Tittle, P.A.
/s/ by: Martin B. McGee
State Bar No.: 22198
Attorneys for the Plaintiffs
P.O. Box 810
Concord, NC 28026-0810
Telephone: (704)-782-1173
293
ANSWER OF DEFENDANT-INTERVENOR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
RALEIGH DIVISION
Civil Action No. 4:96-CV-104
MARTIN CROMARTIE, et al.
Plaintiffs,
V.
Defendants,
and
ALFRED SMALLWOOD, et al.,
)
)
)
)
)
JAMES B. HUNT, JR., et al., )
)
)
)
)
)
Applicant Defendant-Intervenors. )
AMENDED ANSWER OF
DEFENDANT INTERVENORS
Defendant intervenors Alfred Smallwood, David
Moore. William M. Hodges, Robert L. Davis, Jr., Jan Valder,
Barney Offerman, Virginia Newell, Charles Lambeth and
George Simkins answer the titled and numbered allegations of
the Complaint as follows:
294
ANSWER OF DEFENDANT-INTERVENOR, CONTINUED. ..
Preliminary Statement
Plaintiffs” preliminary statement is a summary
description of the nature of their claims and need not be
admitted or denied. To the extent an answer is required, the
allegations are denied.
The Parties
1. Defendant intervenors do not have sufficient
information upon which to form belief about the accuracy of
the allegations of Paragraph 1. Those allegations are therefore
denied.
2 It is admitted that James B. Hunt, Jr. is the
Governor of the State of North Carolina, sued in his official
capacity, and that pursuant to Article III of the constitution of
North Carolina the executive power of the State is vested in the
Governor and it 1s his duty to take care that the laws are
faithfully executed. It is further admitted that pursuant to N.C.
Gen. Stat. § 163-194, the Governor shall issue a commission
attesting to person’s election as a member of the United States
House of Representatives upon the person’s production of a
certificate of his or her election from the Secretary of State.
Any remaining allegations in Paragraph 2 are denied.
3 It 1s admitted that Dennis Wicker is the
Lieutenant Governor of the State of North Carolina, sued in his
a
b
e
h
a
a
a
l
s
295
ANSWER OF DEFENDANT-INTERVENOR, CONTINUED. ..
official capacity, and that pursuant to Articles II and III of the
Constitution of North Carolina. he 1s President of the Senate
and performs such additional duties, including signing enacted
legislation, as the General Assembly or the Governor may
assign to him. Any remaining allegations in Paragraph 3 are
denied.
4. It is admitted that Harold Brubaker is the
Speaker of the North Carolina House of Representatives, sued
in his official capacity, and performs duties, including signing
enacted legislation. assigned to him by the House of
Representatives. Any remaining allegations of Paragraph 4 are
denied.
5: Paragraph 5 is admitted.
6. Paragraph 6 1s admitted.
Jurisdiction and Venue
Z; It 1s admitted that plaintiffs rely upon the
constitutional and statutory provisions cited in Paragraph 7.
Any remaining allegations are denied.
8. The allegations of Paragraph 8 are admitted.
296
ANSWER OF DEFENDANT-INTERVENOR, CONTINUED. ..
9. [t is admitted that venue exists in the Eastern
District of North Carolina. The remaining allegations in
Paragraph 9 are denied.
Three-Judge District Court
10. It is admitted that the convocation of a three-
judge district court is required to adjudicate this action as
required by 28 U.S.C. § 2284. The remaining allegations in
Paragraph 10 are denied.
History of the Case
11. Paragraph 11 is admitted upon information and
belief.
12. Paragraph 12 is admitted.
13. It 1s admitted that North Carolina became
entitled to twelve representativesin Congress as a result of the
1990 Census, and that the General Assembly undertook to
prepare a redistricting plan that would contain twelve districts.
The allegations in Paragraph 13 are denied.
14. It 1s admitted on July 9. 1991. the General
Assembly enacted a congressional redistricting plan which
included one majority African American district. All
remaining allegations of Paragraph 14 arc denied.
297
ANSWER OF DEFENDANT-INTERVENOR, CONTINUED. ..
15. It is admitted that the Civil Rights Division of
the Department of Justice denied preclearance of the 1991 plan
under Section 5 of the Voting Rights Act. The remaining
allegations in Paragraph 15 are denied.
16. It is admitted that on January 24. 1992. the
General Assembly enacted a second congressional redistricting
plan which included two majority African American districts.
All remaining allegations of Paragraph 16 are denied.
17 Paragraph 17 is admitted.
18. Paragraph 18 is a legal contention which does
not require an answer.
19. The allegations of Paragraph 19 constitute legal
contentions. To the extent an answer is required. the courts’
opinions speak for themselves and any remaining allegations
are denied.
20. Paragraph 20 is admitted.
21. It 1s admitted that subsequent proceedings were
stayed in this action pending the outcome of the proceedingsin
the Shaw litigation, including possible legislative action by the
General Assembly to enact a new congressional redistricting
plan to cure the constitutional defect held to exist in the 1992
plan. Any remaining allegations of Paragraph 21 are denied.
298
ANSWER OF DEFENDANT-INTERVENOR, CONTINUED. ..
22. Paragraph 22 is admitted.
23. It 1s admitted that as a result of the general
elections conducted in November, 1996 under the redistricting
plan which in June, 1996 the Supreme Court had ruled
unconstitutional, six Democrats and six Republicans were
elected to Congress and continue to serve there at the present
time. It is admitted that Melvin Watt, and Eva Clayton are
African American, registered Democrats, and members of
Congress. The remaining allegations in Paragraph 23 are
denied.
24. Paragraph 24 is denied.
2s, Paragraph 25 is denied.
26. Paragraph 26 is denied.
27. Paragraph 27 is denied.
28. Paragraph 28 is denied.
29. Paragraph 29 is denied.
299
ANSWER OF DEFENDANT-INTERVENOR, CONTINUED. ..
Claim for Relief
30. Defendant intervenors incorporate and reallege
their responses to prior allegations.
31. Paragraph 31 is denied.
32. Paragraph 32 is denied.
33. Paragraph 33 is denied.
34. Paragraph 34 is denied.
33. Paragraph 35 is denied.
36. Paragraph 36 is denied.
FIRST DEFENSE
Plaintiffs Cromartie and Muse are barred from bringing
this action by the doctrines of res judicata and collateral
estoppel.
SECOND DEFENSE
The 1997 Remedy Plan is not a racial gerrymander.
300
ANSWER OF DEFENDANT-INTERVENOR, CONTINUED. ..
THIRD DEFENSE
Racial considerations did not predominate, and
traditional districting principles were not subordinated in the
construction or design of the 1997 Remedy Plan or in any of
the districts in the Plan.
FOURTH DEFENSE
The State had a compelling interest in creating a
majority African American district in the area of the State
covered by the First District in order to comply with Section 2
of the Voting Rights Act, as amended. 42 U.S.C. § 1973. The
African American population in that area of the State is
sufficiently large and geographically compact to afford the
opportunity of creating a majority African American district
and is politically cohesive. The white population in that area
votes sufficiently as a bloc to enable it usually to defeat the
African American population’s preferred candidate when
elections are conducted in political units with a majority of
white voting age residents. The 1st congressional district is
narrowly tailored to serve that compelling interest.
FIFTH DEFENSE
The State had a compelling interest in creating a
majority African American district in the area of the State
covered by the First District in order to comply with Section 5
i
E
301
ANSWER OF DEFENDANT-INTERVENOR, CONTINUED. ..
of the Voting Rights Act, as amended, 42 U.S.C. § 1973c. and
that district is narrowly tailored to serve that interest.
SIXTH DEFENSE
A majority African American district is required in the
area of the State covered by the First District in order to remedy
past discrimination against African American voters in
congressional redistricting, voter registration, political
participation, and elections.
WHEREFORE, defendant intervenorsrespectfully pray
that:
3 This action be dismissed:
(S
O)
Plaintiffs be taxed with the cost of this action;
and
3. Defendant intervenors have such other and
further relief as the Court deems just and proper.
302
ANSWER OF DEFENDANT-INTERVENOR, CONTINUED. ..
This 22nd day of May, 1998.
Respectfully submitted.
/s/ Adam Stein
a ADAM STEIN
Ferguson, Stein, Wallas. Adkins
Gresham & Sumter, P.A.
312 West Franklin Street
Chapel Hill, North Carolina 27516
(919) 933-5300
ELAINE R. JONES
Director-Counsel
NORMAN J. CHACHKIN
JACQUELINE A. BERRIEN
NAACP Legal Defense
| & Educational Fund. Inc.
iw 99 Hudson Street, Suite 1600
New York, New York 10013
(212) 219-1900
ANSWER OF DEFENDANT-INTERVENOR, CONTINUED. ..
TODD A. COX
NAACP Legal Defense
& Educational Fund, Inc.
1275 K Street, N.W., Suite 301
Washington, D.C. 20005
(202) 682-1300
Counsel for Applicants
[Certificate of Service omitted in printing]
No. 98-85
In the
Supreme Court of the United States
October Term, 1998
JAMES B. HUNT, JR., et al.,
Appellants,
and
ALFRED SMALLWOOD, et al.,
Intervenor-appellants,
V.
MARTIN CROMARTIE, et al.,
Appellees.
CERTIFICATE OF SERVICE
[, Edwin M. Speas, Jr., Chief Deputy Attorney General, a member of the bar of this Court
and counsel of record for State appellants in this case, hereby certify that all parties required to be
served the foregoing Joint Appendix have been served. Specifically, have directed personal service
of three copies of this Joint Appendix on this the 10th day of November 1998 by 3:00 p.m. to
opposing counsel addressed as follows:
Robinson O. Everett
Suite 300, 301 West Main Street
Durham, NC 27702
919-682-5691
COUNSEL OF RECORD FOR APPELLEES
I have on this 10th day of November 1998, deposited three copies of this Joint Appendix in the
United States mail, first-class postage prepaid, addressed as follows:
Rh Rd
Todd Cox
NAACP Legal Defense & Educational Fund, Inc.
1444 1 Street NW
Washington, DC 20005
Telephone: (202) 682-1300
COUNSEL OF RECORD FOR INTERVENOR-APPELLANTS
Further, I have on this 10th day of November 1998, deposited a copy of this Joint Appendix in the
United States mail, first-class postage prepaid, addressed as follows:
Laughlin McDonald, Director
American Civil Liberties Union Foundation
Suite 202
44 Forsyth Street, NW
Atlanta, GA 30303
404-523-2721
ON BEHALF OF THE AMERICAN CIVIL LIBERTIES UNION FOUNDATION
Richard Buery, Jr.
Brennan Center for Justice
NYU School of Law
161 Avenue of the Americans, 5th Floor
New York, NY 10013
212-998-6730
ON BEHALF OF THE BRENNAN CENTER FOR JUSTICE
Heather Gerken
Jenner & Block
Suite 1200
601 Thirteenth Street, NW
Washington, DC 20005
202-639-6000
ON BEHALF OF DEMOCRATIC CONGRESSIONAL CAMPAIGN COMMITTEE AND OTHERS
This the 10th day of November 1998.
Hr —
Edwin M. Speas, Jr.
Chief Deputy Attorney General