Brief of Appellant-Intervenors with Certificate of Service

    No. 98-85 
    

IN THE 

4 Court of the Anited States 
OCTOBER TERM 1998 
  

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

and 

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ALFRED SYA IVO0D o1 al., 

Appellant-Intervenors, 

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MARTIN CROMARTIE, et al.,   gi
 
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“On Appeal from the United States District Court 2% | 
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: © ELANER. JONES - ADAM STEIN =o 1:   
  

" Director-Counsel | 

Lis, WatosciaM. SHAW 
“NORMAN J. CHACHKIN 
JACQUELINE A. BERRIEN 
VICTOR A. BOLDEN. © 
DEBORAH N. ARCHER 
NAACP LEGAL DEFENSE 
 & EDUCATIONAL FUND, INC. 

99 Hudson Street, Suite 1600 
New York, New York 10013 

(212) 219-1900 

FERGUSON, STE WALTAS, 

ADKINS GRESHAM & 4 eh 
SUMTER, P.A.. : 

"- 312 West Franklin Street 
Chapel Hill, NC 27516 
(919) 933-5300 

ToDD A. COX* 
NAACP LEGAL DEFENSE 
& EDUCATIONAL FUND, INC. 

1444 Eye Street, NW | 
10th Floor 

Washington, DC 20005 

(202) 682-1300 

*Counsel of Record 

  

a Attorneys for Appellant-Intervenors | 
   



  

QUESTIONS PRESENTED 

In a racial gerrymandering case, is an inference drawn 
from the challenged district’s shape and racial 
demographics, standing alone, sufficient to support 
summary judgment for the plaintiffs on the contested 
issue of the predominance of racial motives in the 
district’s design, when it is directly contradicted by the 
affidavits of the legislators who drew the district? 

Does a final judgment from a court of competent 
jurisdiction, which finds a state’s proposed 
congressional redistricting plan does not violate the 
constitutional rights of the named plaintiffs and 
authorizes the state to proceed with elections under it, 
preclude a later constitutional challenge to the same 
plan in a separate action brought by those plaintiffs and 
their privies? 

Is a state congressional district subject to strict scrutiny 
under the Equal Protection Clause simply because it is 
slightly irregular in shape and contains a higher 
concentration of minority voters than its neighbors, 
when it is not a majority-minority district, it complies 
with all of the race neutral districting criteria the state 
purported to be following in designing the plan, and 
there is not direct evidence that race was the 
predominant factor in its design? 

        
    
 



  

      

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PARTIES TO THE PROCEEDINGS 

Actual parties to the proceeding in the United States 

District Court were: 

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

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

capacity as Lieutenant Governor of the State of North Carolina, 

Harold Brubaker in his official capacity as Speaker of the North 

Carolina House of Representatives, Elaine Marshall in her 

official capacity as Secretary of the State of North Carolina, and 

Larry Leake, S. Katherine Burnette, Faiger Blackwell, Dorothy 

Presser and June Youngblood in their capacity as the North 

Carolina State Board of Elections, defendants, appellants 

herein, 

(2) Alfred Smallwood, David Moore, William M. 

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

Virginia Newell, Charles Lambeth and George Simkins, 

defendant-intervenors, appellant-intervenors herein, ; 

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

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

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

  
  

      
 



    

    TABLE OF CONTENTS 

Questions Presented ...................... 

Parties to the Proceedings .................. 

Table of Authorities ............... + Sg 

Opinions Below .., . Jos ie vivsininivian dain wiv 

JURSACHON . » oh esi, 4 sbois nisin aires 3 + 08% 7 

Constitutional and Statutory Provisions Involved 

Statement ofthe Case... .... cova divs wrnns 

A. Events leading to Adoption of the 

1997 Remedial Plan ........... 

B. The 1997 Remedial Plan ....... 

C. The Legal Challenge to the 1997 

Remedial Plan ..... 00h 

Summary of Argument ................000n 

ARGUMENT - 

1 Summary Judgment was Inappropriate 

inthisCase ...L..0 0 Jee aus e vin: 

    

              
  

    

   



  

  

  

      

  

    

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TABLE OF CONTENTS (continued) 
Page 

ARGUMENT (continued) 

A. Because this case involves an inquiry 

into the intent of the North Carolina 

legislature, it should not have been 

resolved through summary judgment . . . . . 17 

B. Because this case necessarily concerns 

issues arising under the Voting Rights 

Act, it should not have been resolved 

through summary judgment ........... 23 

II The District Court Erred in Ruling That Race 

Was the Predominant Factor in the Creation 

of the Twelfth Congressional District .......... 27 

A. The court erred in sanctioning the 

Appellees’ argument that race 

predominated in the development of 

the 1997 Remedial Plan because that plan did 

not evidence legislature’s complete 

abandonment of the 1992 plan as a 

starting point for fashioning the 

remedy ..... ee BS anh ha ole 4 27 

        

 



  

  

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TABLE OF CONTENTS (continued) 
Page 

ARGUMENT (continued) 

B. In jurisdictions such as North Carolina, 
with a history of prior discrimination 
and minority vote dilution, and in which 
voting patterns remain racially polarized, 
districting must be sufficiently race- 
conscious to avoid violating Section 2 
of the Voting Rights Act, but that 
circumstance does not establish that 
race “predominates” so as to trigger 
BStrict SOrUbInY? 0... on a 32 

III . Even if Race Predominated in its Creation, the 

District Court Erred in Never Determining if the 
State had a Compelling Justification for Creating a 

Nagrowly Tailored District 12... ci cei e ane es 40 

Conclusion” 8... .... 0A Con LN SH NE A a 42 

      

  

    

  
        

 



  

  
  

      

    
  

          

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TABLE OF AUTHORITIES 

CASES 
Page 

Abrams v. Johnson, 

SAMUS. F4Q997) ......hciiiactvnnanrans 36 

Anderson v. Liberty Lobby, Inc. 

ATTIUS. 2421088) . 0. sein delesianis avs vie 18 

Bronze Shields, Inc. v. New Jersey Department 

of Civil Service, 667 F.2d 1074 (3d Cir. 

1981), cert. denied, 458 U.S. 1152 (1982) ites 18 

Burns v. Richardson, 

2384S. 739086). . - «elvis sine vais So nains 29 

Bush v. Vera, 

517 U.S. 952 (1996) ....... Dh passim 

City of Rome v. United States, 

450 F. Supp. 378 (D.D.C. 1978) ............. 26 

Clark v. Calhoun County, 

88 F. 3d. 1393 (5th Cir. 1996) ..............- 38 

County Council v. United States, 

555 F. Supp.694 (D.D.C. 1983) ............-: 26 

   



  

  

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CASES (continued) 

DeWitt v. Wilson, 

856 F. Supp. 1409 (E.D. Cal. 1994), 
afd, 3150.8. 117001993)..." ..... 5, 

Gingles v. Edmisten, 

590 F. Supp. 345 (E.D.N.C. 1984), 

  

aff'd in part and rev'd in part, sub. nom., 

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

Growe v. Emison, 

S07 US 251093). 

Jeffers v. Clinton, 

839 F. Supp. 612 (E.D. Ark. 1993) 

  

  
Johnson v. DeSoto County Board of Commissioners, 

863 F. Supp. 1376 (M.D. Fla. 1994) 

Johnson v. Miller, 

864 F. Supp. 1354 (S.D. Ga. 1994), 

  

ard, 515U8.900(1995). ........... is 

King v. State Board of Elections, 

Use 1188.0 2771998) 

Lawyer v. Department of Justice, 

Lipsett v. University of Puerto Rico, 

8364 F.24 881 (1st Cir. 1988) ........ cc... 0 

  
  

ea eo oo 9 ° eo a eo a o 

SA US S67(1997) vo. il... i   
      

 



  

  

  

  

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CASES (continued) 

Mallory v. Eyrich, 

707 F. Supp. 947 (S.D. Ohio 1994) ..... 

McDaniel v. Sanchez, 

ABIUE 130A) 0 ih ale Saas 

McGhee v. Granville County, 

860 F.2d 110 (4th Cir. 1988) .......... 

Miller v. Johnson, 

$15 U.8.900(1995) ......... hl 

Poller v. Columbia Broadcasting System, Inc., 

S688 464 (1962) ....... iis 

Pullman-Standard v. Swint, 

BEUSIIBOBY oid ll ives 

Ross v. Communications Satellite Corp., 

759 F.2d 355 (4th Cir. 1985) . ........ ; 

Scott v. United States, 
920 F. Supp. 1248 (M.D. Fla. 1996), 

aff'd sub. nom., Lawyer v. Department 

of Justice, 521 U.S. 567 (1997) ..... te 

Shaw v. Hunt, 

S17U.S 300006). has iv ies 

  a 

       



  

  

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CASES (continued) 

Page 
Shaw v. Hunt, 

No. 92-202-CIV-5-BR (E.D.N.C. 

September 12,1997) ....... Che Lh 9 

Shaw v. Hunt, 

861 F. Supp. 408 (E.D.N.C. 1994), 

revd, 5170.8. 8091996) ............. a 1 

Shaw v. Reno, 

S300.13.8.630 (1993) &.. .. vnus ni TH passim 

Shaw v. Reno, 

808 F. Supp. 461 (ED.N.C.1992) ............. 1 

Smith v. Beasley, 

946 F. Supp. 1174 (D.S.C. 1996) .......... 21.25 

Smith v. University of North Carolina, 
632F.24316 (4th Cir 1980). ............... 18 

Stepanischen v. Merchants Despatch Transportation 
Corp., 722 F.2d 922 (1st Cir. 1983) .......... 18 

Tallahassee Branch of NAACP v. Leon County, 
827F2d1436 (1th Cir 1987) +... . isis hus 29 

Thornburg v. Gingles, 
4730S. 301986)... h.. ie 23, 37 

    

  

  
  

 



  

      

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CASES (continued) 

Page 

. United States v. Hayes, 
SISUS.737(1995) ............ 5. 33 

Upham v. Seamon, 

456 1.8. B7 (1082) un... oli. ir anid ne ue 30 

Vera v. Richards, 

861 F. Supp. 1304 (S.D. Tex. 1994), 

aff'd sub. nom., Bushv. Vera, 

51700.8. 9521998) uit. «iin a passim 

Voinovich v. Quilter, 

5070.8. 148. (1093) ii uu i citi mine ov aug 29 

White v. Weiser, 

4120.8. 783 (3073) 0.0. . . «vie wine an aii, ws 22,30 

Wilson v. Eu, 

1 Cal. 4th 707, 823 P.2d 545, 

4Ca Rotr.24379(1992) .... 00. ova ivi 37 

Wise v. Lipscomb, 

A37 U.S. 5351078) vk ooo iv cis diaiaie sin inin y nis 29 

STATUTES & RULES 

NOS C S153 By. Er Be 2 

A SIC. SB 1073. a. hy nis ar Ne ia 23, 32 

   



  

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STATUTES & RULES (continued) 
Page 

RUS.C. 8197300. 6 i i ti ES 

1997 N.C. Sess. Laws, Ch. 11 be 4° fui 

Fed RCOIV.R. S58... otun cP oh on a 52 

OTHER AUTHORITIES 

10B Charles A. Wright, Arthur R. Miller, & 
Mary K. Kane, Federal Practice 

and Procedure (1998ed.) .................... 19 

  

          

      

  

    

      

    

  
      

   

   



  

BRIEF OF APPELLANT-INTERVENORS 

Alfred Smallwood, David Moore, William M. Hodges, 

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

Newell, Charles Lambeth and George Simkins (“Smallwood 

Appellants”), white and African-American citizens and 

registered voters residing in either North Carolina’s First or 

Twelfth Congressional District, were granted leave by this 

Court to intervene as Appellants from the final judgment of the 

three-judge United States District Court for the Eastern District 

of North Carolina, entered April 6, 1998, in Cromartie v. Hunt. 

The Cromartie three-judge court held that the Twelfth 
Congressional District of North Carolina’s 1997 congressional 

reapportionment plan, 1997 N.C. Sess. Laws., Ch. 11 (“1997 

Remedial Plan”), violates the Fourteenth Amendment to the 

United States Constitution. 

OPINIONS BELOW 

The April 14, 1998 opinion of the three-judge district 

court appears in the Appendix to the Jurisdictional Statement on 

Behalf of the State of North Carolina (“NC. J.S. App.”) at 1a. 
The district court’s order and permanent injunction, entered on 

April 3, 1998, and the district court’s final judgment, entered 
April 6, 1998, are unreported and appear at NC. J.S. App. at 
45a and NC. J.S. App. at 49a, respectively. Previous decisions 

of earlier phases of related litigation are reported at Shaw v. 

Hunt, 517 U.S. 899 (1996); Shaw v. Reno, 509 U.S. 630 

(1993); Shaw v. Hunt, 861 F. Supp. 408 (E.D.N.C. 1994); and 

Shaw v. Reno, 808 F. Supp. 461 (E.D.N.C. 1992). 

JURISDICTION 

The judgment of the court below was entered on April 

6, 1998. The State of North Carolina filed an amended notice 

of appeal to this Court on April 8, 1998. This Court noted 

probable jurisdiction on September 29, 1998. The jurisdiction 

       



  

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of this Court is invoked under 28 U.S.C. § 1253. 

CONSTITUTIONAL AND 
STATUTORY PROVISIONS INVOLVED 

This appeal involves the Equal Protection Clause of the 

Fourteenth Amendment and Rule 56 of the Federal Rules of 

Civil Procedure, reproduced at NC. J.S. App. at 169a and 171a, 

respectively. 

STATEMENT OF THE CASE 

A. Events leading to Adoption of the 1997 Remedial 

Plan 

This case is a challenge to the 1997 Remedial Plan, 

which is the third congressional redistricting plan enacted by the 

North Carolina General Assembly since the 1990 Census.’ 

On remand, the North Carolina General Assembly 

~ convened to develop a redistricting plan to remedy the 

constitutional infirmities found by this Court. While the State 

has identified many factors, especially political concerns, that 

were considered by the General Assembly, the legislature also 
had before it an extensive record concerning the historical 

exclusion of black voters, continuing racial appeals in North 

Carolina election contests, the socio-economic disparities 

affecting African-American voters’ opportunities to participate 

in the political process, the lack of success of African-American 

  

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"This Court’s ruling in Shaw v. Hunt, 517 U.S. 899 (1996), 
concerned the 1992 Congressional Redistricting Plan (“1992 Plan”) enacted 

by the North Carolina legislature following the 1990 Census. In Shaw, this 
Court held that the 1992 Plan was unconstitutional because the location and 

configuration of District 12 violated the equal protection rights of some of 

the plaintiffs in the action. Shaw, 517 U.S. at 902. A map of the 1992 Plan 
is reproduced at NC. J.S. App. at 61a.     
   



  

  

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candidates, and the continuing prevalence of racially polarized 

voting. See, e.g., Affidavit of Gary O. Bartlett, Section 5 
Submission, Attachment 97C-28F-3B, North Carolina 

Congressional Redistricting Public Hearing Transcript, February 

26, 1997 at 19-22; Id., Ex. 6 (Statement of Anita Hodgkiss) at 

2-7,1d., Ex. 6, Tab 2 (Expert Report of Dr. Richard Engstrom) 
(“Engstrom Report”). 

Indeed, the General Assembly was aware that for nine 

decades, from 1901 until 1992, no African-American candidate 

had been elected to Congress in North Carolina, even when they 

enjoyed the overwhelming support of African-American voters. 

Moreover, African-American voters were disenfranchised as a 

result of conscious, deliberate and calculated state laws that 

both denied African-American voters access to the ballot box 

and effectively diluted their votes. See Gingles v. Edmisten, 

590 F. Supp. 345, 359 (E.D.N.C. 1984), aff'd in part and rev'd 

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

The State utilized measures such as poll taxes, literacy tests, 

anti-single shot voting laws, and at-large and multi-member 

election districts to exclude African-Americans from the 

political process. Id. See also Affidavit of Gary O. Bartlett, 

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

Congressional Redistricting Public Hearing Transcript, February 

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

Morgan Kousser) (“Kousser Report”); Affidavit of Dr. David 

R. Goldfield (“Goldfield Report”), filed as Tab 3 to Defendants’ 

Brief in Opposition to Plaintiffs’ Motion for Summary Judgment 

and in Support of Their Cross-Motion for Summary Judgment.- 

Specifically, with regard to congressional districting, in its 1970 

and 1980 reapportionment plans, the General Assembly 

intentionally fragmented the African-American vote in the 

  

    

 



  

    

  
          

  

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northeastern portion of the state to make sure African-American 

voters could not garner enough support to elect their preferred 

candidate to Congress. Kousser Report at 34-46. Also, racial 

appeals in campaigns were used by white candidates to dissuade 

white voters from supporting African-American candidates. 

Affidavit of Gary O. Bartlett, Section 5 Submission, Attachment 

97C-28F-3B, North Carolina Congressional Redistricting Public 

Hearing Transcript, February 26, 1997, Ex. 6, Tab 17 (Expert 

Report of Dr. Harry L. Watson). 

To this day, the ability of African-American voters to 

participate in congressional elections has continued to be 

hindered by the persistent effects of past official discrimination. 

For example, the legacy of literacy tests, in use until the mid- 

1970s, and poll taxes continues to be reflected in the fact that 
African-American voters are registered to vote in lower 

percentages than white voters.> African-American voters asa 

whole are less well-educated, lower-paid, more likely to be in 

poverty, and have less access to basic instruments of political 

participation such as telephones, cars, and money than do their 

white counterparts, which adversely affects their ability to 

participate effectively in the political process. Affidavit of Gary 

O. Bartlett, Section 5 Submission, Attachment 97C-28F-3B, 

North Carolina Congressional Redistricting Public Hearing 

  

2In 1960, statewide only 39.1 percent of the African-American 

voting- age population was registered to vote, compared to 92.1 percent of 
the white voting-age population. Gingles v. Edmisten, 590 F. Supp. at 360. 

In the majority-black counties, all located in eastern North Carolina, less 

than 20 percent of the African-American population was registered to vote 

in 1960. Goldfield Report at 5. By 1980, statewide 51.3 percent of age- 
qualified blacks and 70.1 percent of whites were registered. Gingles, 590 

. F. Supp. at 360. In 1993, 61.3 percent of blacks and 72.5 percent of whites 

who were eligible to vote were registered. Stipulation No. 63. 

   



  

  

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Transcript, February 26, 1997, Ex. 6, Tab 17 (Shaw v. Hunt, 

Defendant-Intervenor Stipulations) (“Stipulations™) Nos. 1-58, 

64-67). 

Elections in North Carolina in the 1990’s are still 

marked by direct appeals to race designed to discourage white 

voters from voting for African-American candidates. Affidavit 

of Gary O. Bartlett, Section 5 Submission, Attachment 97C- 

28F-3B, North Carolina Congressional Redistricting Public 

Hearing Transcript, February 26, 1997, Ex. 6, Tab 17 (Expert 

Report of Dr. Alex Willingham) at 17-26. In fact, in 1990, 

large numbers of qualified African-American voters were 

anonymously sent post cards which misrepresented state law 

and threatened them with criminal prosecution if they tried to 

vote after having recently moved. Affidavit of Gary O. Bartlett, 

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

Congressional Redistricting Public Hearing Transcript, February 

26, 1997, Ex. 6, Tab 16 (Shaw v. Hunt Defendant-Intervenor 

Ex. 522-531). 

In North Carolina elections, white voters tend not to 

support the candidates of choice of African-American voters. 

In this century, no African-American candidate other than Ralph 

Campbell, State Auditor, has ever won a statewide election 

contest for a non-judicial office. No single-member majority- 

white state legislative district has ever elected an African- 

American candidate to the state legislature. Stipulation Nos. 

13, 18. A study of 50 recent elections in which voters have 

been presented with a choice between African-American and 

white candidates, including congressional elections, statewide 

elections and state legislative elections, found that 49 of the 50 

were characterized by racially polarized voting. See Engstrom 

Report. In every statewide election since 1988 where voters 

  

    

   



  

  

  
  

  

    

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were presented with a biracial field of candidates, voting 
patterns indicated significant white-bloc voting. Id. In all 
except two low-profile contests, racially polarized voting was 
sufficient to defeat the candidate chosen by African-American 
voters. Id. 

A pattern of racially polarized voting continued in the 
1996 U.S. Senate campaign between Harvey Gantt and Jesse 
Helms. The regression and homogeneous precinct analyses 
show that statewide, Gantt received between 97.9 percent and 
100 percent of the African-American vote, but only 35.7 
percent to 38.1 percent of the non-African-American vote. See 
Affidavit of Gary O. Bartlett, Section 5 Submission at 
Attachments 97C-28F-3B and 97C-28F-D(3), p.6. 

B. ‘The 1997 Remedial Plan 

The first post-1990 Census North Carolina 
congressional reapportionment plan, enacted in 1991, contained 
one majority-black district that was 55.69 percent black in total 
population and 52.18 percent black in voting age population.’ 
The second post-1990 Census reapportionment plan, enacted in 
1992, contained two majority-black districts (the First and 
Twelfth Congressional Districts), but the Twelfth Congressional 
District was held unconstitutional in Shaw v. Hunt. 

The North Carolina General Assembly enacted the 1997 
Remedial Plan to remedy the constitutional violation found in 
Shaw v. Hunt. District 12 in the 1997 Remedial Plan is no 
longer a majority-black district. In fact, by every measure, the 
African-American population in District 12 is approximately ten 

  

>This Court discussed the history of the first plan in Shaw v. Reno, 
509 U.S. 630 (1993) and Shaw v. Hunt, 517 U.S. 899 (1996). 

   



  

  

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percentage points lower than it was in the 1992 Plan: 
  

  

  

  

  

    

Population 1992 Dist. 12 1997 Dist. 12 

Total Black 56.63% 46.67% 

Total White 41.80% | 51.59% 

Voting Age 53.34% 43.36% 

Black 

Voting Age 45.21% 55.05% 

White       

Jt. App. at 111 - 115. 

In 1997, the General Assembly had two primary 

redistricting goals. The first was to remedy constitutional 

defects found by this Court in the 1992 Plan, including the 

predominance of racial considerations underlying the shape and 

location of District 12. NC. J.S. App. at 63a. The General 

Assembly accomplished this goal by utilizing a variety of 

different redistricting techniques (including several that were 

not used in 1992), id., 

1. 

including: 

Avoiding any division of precincts and 

of counties to the extent possible; 

Avoiding use of narrow corridors to 

connect concentrations of minority 

voters; 

Striving for geographical compactness 

without use of artificial devices such as 

double cross-overs or point contiguity; 

      

  
 



  

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4. Pursuing functional compactness by 

grouping together citizens with similar 

interests and needs; and 

5. Seeking to create districts that provide 
easy communication among voters and 

their representatives. 

The second primary goal was to preserve the even (six 
Republican and six Democratic members) partisan balance in 
North Carolina’s then-existing congressional delegation, which 
reflected the existing balance between Democrats and 
Republicans in the State. Id. at 64a. In addition, with the State 
House of Representatives controlled by Republicans and the 
State Senate controlled by Democrats, preserving the same 
partisan balance in the congressional delegation was essential to 
ensure that the General Assembly would be able to agree on a 
remedial plan. Preserving the political status quo in the 
congressional delegation was necessary to avoid dissension 
from either party, see id., and, therefore, an entirely new 
configuration would not have been politically acceptable. 
However, the General Assembly felt, as a matter of policy, that 
the legislature, rather than the Shaw district court, had a 
constitutional duty to devise a new remedial plan, conducting 
the necessary balancing of the various interests necessary in 
redistricting. See id. 

During the 1997 redistricting process, the General 
Assembly considered, but ultimately rejected, proposed plans 
that would have created a second majority-minority district in 
the area east of Charlotte toward Cumberland and Robeson 
Counties. Several groups and individuals, including the North 

    

   



  

  

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Carolina Association of Black Lawyers and State 
Representative Mickey Michaux, objected to the 1997 Remedial 
Plan because, in their view, it diluted the voting strength of 
African-Americans in certain areas of the state and “deliberately i fa 
separates large politically cohesive African-American PRE an 
communities.” See Shaw v. Hunt, No. 92-202-CIV-5, AR ae 
Memorandum in Support of Motion to Intervene (E.D.N.C. 
filed April 15, 1997). The plan favored by these groups was 
designed to avoid dilution; it also would have combined 
African-American voters in Charlotte with voters, including 
African-American and Native American voters, in rural areas 
southeast of Charlotte. The General Assembly concluded that 
such a district would have combined urban and rural voters with 
disparate and divergent economic, social and cultural interests 
and needs. NC. J.S. App. at 66a. Also, the proposed district 
lacked a natural means of communication and access among its 
residents. In addition, that district would have thwarted the 
goal of maintaining partisan balance in the State’s congressional 
delegation. Jd. Although this plan was not enacted, the State 
has recognized the need to preserve an equal opportunity for 
African-American voters to elect their candidates of choice in 
District 12. See NC. J.S. App. at 66a. 

The General Assembly enacted the 1997 Remedial Plan 
on March 31, 1997 and submitted it to the three-judge court in 
Shaw v. Hunt, No. 92-202-CIV-5-BR (E.D.N.C.) the following 
day. The State also submitted the plan for preclearance by the 
United States Department of Justice pursuant to Section 5 of 
the Voting Rights Act, 42 U.S.C. § 1973c. On June 9, 1997, 
the Department of Justice precleared the plan. See NC. J.S. 
App. at 162a (Shaw v. Hunt, No. 92-202-CIV-5-BR, 
Memorandum Opinion (E.D.N.C. September 12, 1997)). 

  

        
   



  

  

  

  

  

10 

On September 12,1997, the three-judge district court in 

Shaw v. Hunt unanimously approved the 1997 Remedial Plan as 

“a constitutionally adequate remedy for the specific violation 

found by the Supreme Court in [Shaw v. Hunt].” NC. J.S. App. 

at 167a. A map of the 1997 Remedial Plan is reproduced at 

NC. J.S. App. at 59a. 

C. The Legal Challenge to the 1997 Remedial Plan 

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

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

Appellees herein, filed the complaint in this action (Cromartie 

v. Hunt), challenging District 1 in North Carolina’s 1992 Plan 

on the ground that it violated their equal protection rights 

because race predominated in the drawing of the district. A stay 

was entered pending the resolution of the remand proceedings 

in Shaw v. Hunt. On July 9, 1996 the same Tarboro residents 

joined the original plaintiffs in Shaw in filing an Amended 

Complaint in Shaw, raising a similar challenge to and asserting 

the same claims against the First Congressional District as they 

raised in Cromartie v. Hunt. On July 11, 1996, the members of 

the Smallwood Appellant group (three voters from the First 

District and six voters from the Twelfth District) sought to 

intervene in the Cromartie suit as defendants. 

The Shaw case was dismissed by the three-judge court 

on September 12, 1997, and the Cromartie three-judge court 

lifted its stay of proceedings on October 17, 1997. On the same 

day, two of the three original plaintiffs, along with four 

residents of District 12, filed an amended complaint in the 

  

“The Smallwood Appellants participated fully as intervenors in 
Shaw v. Hunt in the trial court and in this Court, including in the remedial 

proceedings which resulted in the approval of the 1997 Remedy Plan. 

  

 



  

  

11 

Cromartie action, challenging the 1997 Remedial Plan as a 

violation of the Equal Protection Clause and still seeking a 

declaration that District 1 in the 1992 Plan is unconstitutional.’ 

Within the time allowed for answering that amended complaint, 

the Smallwood Appellants filed a renewed motion to intervene 

as defendants. 

On March 31, 1998, the court below heard arguments 

on cross-motions for summary judgment and on the Cromartie 

plaintiffs’ request for preliminary injunction. At the time of this 

hearing, the district court had not ruled on the motions to 

intervene of the Smallwood Appellants which had then been 

pending for over twenty months and four months, respectively. 

The court issued its permanent injunction and granted summary 

judgment without ruling on these unopposed motions or holding 

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

allow counsel for the Smallwood Appellants an opportunity to 

bring the motion to intervene before it and expressly denied - 

counsel for the Smallwood Appellants an opportunity to speak 

at the hearing. 

In their summary igen: papers and at the hearing. 

Appellees contended that the 1997 Remedial Plan should be 

declared unconstitutional because it is the “fruit of the 

poisonous tree” of the redistricting plan held to be 
unconstitutional in Shaw v. Hunt. See, e.g., Plaintiffs’ Brief in 

Support of Motion for Preliminary Injunction at 4-5. 

Analogizing the 1997 redistricting process to a criminal trial in 

which evidence discovered as a result of information gained by 

  

While Appellees Cromartie and Muse were also plaintiffs in Shaw 
v. Hunt, they chose not to present their claims that the 1997 Remedial Plan 
was unconstitutional to the Shaw three-judge court. 

  

  
 



Mi i a ER SR a es 

  

  

  

  

  

12 

an illegal search is admitted, Appellees argued that any remedial 
plan drawn by the legislature must be held unconstitutional 
unless the legislature completely discards the invalidated plan 
and develops its new plan without reference to even the lawful 
aspects of the prior plan. Id. 

On April 3, 1998, a three-judge United States District 
Court for the Eastern District of North Carolina issued an order 
granting summary judgment to plaintiffs, declaring North 
Carolina’s Twelfth Congressional District unconstitutional, 
permanently enjoining elections under the 1997 Remedial Plan, 
and ordering the State of North Carolina to submit a schedule 
for the General Assembly to adopt a new redistricting plan and 
to hold elections under that plan. NC. J.S. App. at 45a. The 
district court issued its judgment on April 6, 1998. NC. J.S. 
App. at 49a. Neither the order nor the judgment was 
accompanied by a memorandum opinion from the court. 

Although the court had not yet released an opinion, the 
State moved for a stay of the injunction pending appeal. The 
district court denied this motion. ‘The State then filed an 
application with this Court for a stay pending appeal, and the 
Smallwood Appellants filed an amicus curiae memorandum in 

this Court in support of the application. This Court denied the 
request for a stay on April 13, 1998, with Justices Stevens, 
Ginsburg, and Breyer dissenting. 

On April 14, 1998, the district court issued its opinion 
explaining its April 3, 1998 order. The court accepted the 
uncontested affidavit testimony of Senator Roy A. Cooper, ITI 
that the legislature “aimed to identify a plan which would cure 
the constitutional defects and receive the support of a majority 
of the members of the General Assembly.” NC. J.S. App. at 5a. 
The court also accepted the uncontroverted affidavit testimony 

  
    

   



  

13 

of Senator Cooper and Gary O. Bartlett, Executive Secretary- 
Director, State Board of Elections, that “[i]n forming a 
workable plan, the committees were guided by two avowed 
goals: (1) curing the constitutional defects of the 1992 plan by 
assuring that race was not the predominant factor in the new 
plan, and (2) drawing the plan to maintain the existing partisan 
balance in the State’s congressional delegation.” Jd, 

The court below found that the 1997 Remedial Plan met 
the goal of maintaining the existing partisan balances by 
“avoid[ing] placing two incumbents in the same district” and 
“preserv[ing] the partisan core of the existing districts to the 
extent consistent with the goal of curing the defects in the old 
plan.” Id. at 5a-6a. Further, the court received no evidence 
that directly contradicted the testimony introduced by the State 
to the effect that the legislature sought, in creating the 1997 
Remedial Plan, to cure the constitutional defects found by this 
Court by ensuring that race did not predominate in its creation 
while minimizing partisan and political disruption. See id. at 
63a-64a. Nevertheless, the court below found that race was the 
predominant factor in the creation of the 1997 Remedial Plan 
based upon its own assessment of (a) District 12°s racial 
demographics and shape, (b) the racial characteristics of a 
limited number of precincts that were included in or excluded 
from the district, and (c) mathematical measures of District 12’s 
relative compactness. Id. at 6a-11a. 

While the court asserted that “[a] comparison of the 
1992 District 12 and the present District is of limited value 
here,” id. at 19a, it concluded that District 12 in the 1997 
Remedial Plan is as “unusually shaped” as was District 12 in the 
1992 Plan. Id. Focusing exclusively on demographic data and 
the district’s configuration, the court held that “the General 

    
    
 



  

14 

Assembly, in redistricting, used criteria with respect to District 
12 that are facially race driven.” Id. at 21a. Finally, despite 
extensive conflicting factual evidence, the court below 
concluded that “[t]he legislature disregarded traditional 
districting criteria such as contiguity, geographical integrity, 
community of interest, and compactness in drawing District 12 
in North Carolina’s 1997 plan.” Id. at 21a-22a. 

The court never proceeded to assess whether District 12 
was narrowly tailored to satisfy a compelling justification, even 
though such inquiry is necessary upon a finding that strict 
scrutiny should apply to the redistricting plan.® Instead, the 
court concluded that the predominance of race in the creation 
of the district alone proved fatal to the district: “the General 
Assembly utilized race as the predominant factor in drawing the 
District, thus violating the rights to equal protection guaranteed 
in the Constitution to the citizens of District 12.” Id. at 22a 
(emphasis added). Consequently, the court granted Appellees 
summary judgment as to District 12. 

On May 26, 1998, with their two prior unopposed 
intervention motions still pending, the Smallwood Appellants 

  

Therefore, the court never considered or discussed whether the 
creation of District 12 could be justified by the State's compelling interest 
in remedying the current effects of North Carolina’s long history of political 
exclusion and in avoiding dilution of minority voting strength. The court 
ignored evidence presented by the State that its “primary goals [of remedying 
the constitutional defects found in the 1992 Plan and preserving partisan 
balances in the congressional delegation] were accomplished while still 
providing minority voters a fair opportunity to elect representatives of their 
choice in at least two districts (Districts 1 and 12),” NC. J.S. App. at 64a, 
and that “[d]istrict 12 in the State’s plan also provides the candidate of 
choice of Affican-American citizens a fair opportunity to win election.” Id. 
at 66a.   
  

   



  

  

15 

filed a third motion to intervene as defendants in the case. On 

June 20, 1998, after the deadline for filing a timely notice of 

appeal of the district court’s April 3, 1998 order and April 6, 

1998 judgment, the district court ruled that the Smallwood 

Appellants were entitled to intervene as of right in this action. 

As the delay in granting the motions to intervene prevented 

them from fully participating as parties in the district court and 

prevented them from being able to exercise their right to appeal, 

the Smallwood Appellants filed in this Court on October 2, 

1998 a motion to intervene as Appellants in this case. This 

Court granted the motion on October 19, 1998. 

SUMMARY OF ARGUMENT 

In holding that District 12 of the 1997 North Carolina 

Congressional Redistricting Plan (“1997 Remedial Plan”) is 

unconstitutional, the court below erred in several critical 

respects. First, the court erred in resolving this case in favor of 

Appellees on their motion for summary judgment. The 

jurisprudence developed by this Court after Shaw v. Reno 

dictates that, in evaluating whether a redistricting plan violates 

the strictures of the Fourteenth Amendment, a court must 

engage in a searching evaluation into the intent of the legislature 

in creating the plan. This inquiry is fact-intensive and, as such, 

is particularly inappropriate for resolution through summary 

judgment. In this case, the State of North Carolina introduced 

substantial documentary and testimonial (affidavit) evidence to 

rebut the Appellees’ allegation that race predominated in the 

legislative redistricting process. Without hearing any live 

witnesses or explicitly resolving the conflicts over material facts 

created by the parties’ submissions, the court below granted 

summary judgment to the Appellees, thus committing reversible 

error. 

  

  

 



  
  3 

  

     

  

     

    

   

    

      

     

    

     
   

   

    

   

16 

Second, the court below erred in holding that race was 
the predominant factor in the creation of the Twelfth 
Congressional District. Appellees argued below that the 1997 
Remedial Plan must be declared unconstitutional because it was 
the “fruit of the poisonous tree” (the plan invalidated by Shaw 
v. Hunt). In essence, Appellees assert that a State remedying a 
Shaw violation is required to do significantly more than correct 
the constitutional defect found in a challenged district. 
According to Appellees, the State must abandon every feature 
of the challenged plan and construct a new plan without regard 
to traditional districting concerns such as the partisan political 
makeup of the State’s congressional delegation, incumbent 
protection, and avoiding unnecessary disruption of communities 
of interest. Appellees’ theory is fundamentally at odds with this 
Court’s precedents, finding no support in Shaw or its progeny 
or in the case law defining how courts evaluate remedial 
redistricting plans. 

The lower court in effect endorsed this theory, 
according no deference to the State’s policy choices in the 
redistricting process. This also was error. To the extent that 
the 1997 Remedial Plan did not violate any federal or state 
constitutional or statutory requirements, the district court was 
bound to approve the legislature’s decisions. 

The court further erred in holding the 1997 Remedial 
Plan unconstitutional based solely on its finding that race was 
one factor among many considered by the legislature in 
redistricting. In so ruling, the court failed to give any weight to 
the State’s obligation to avoid minority vote dilution in 
redistricting, which necessarily meant that the legislature would 
have to be conscious of race in shaping the plan. This ruling is 
inconsistent with the Court’s decisions in Shaw and its progeny 

     



  

  

17 

that require plaintiffs to show that race predominated in the 
redistricting process and subordinated traditional redistricting 
principles. Thus, the court’s determination that the mere 
awareness of race in the redistricting process rendered the 1997 
Remedial Plan unconstitutional is erroneous and must be 
reversed. 

Third, even if the district court had correctly found that 
race was the predominant factor in the creation of the Twelfth 
District, it erred by not engaging in the required strict scrutiny 
analysis to determine if the State had a compelling justification 
and narrowly tailored the district to achieve that purpose 

ARGUMENT 

L Summary Judgment was Inappropriate in this Case 

A. Because this case involves an inquiry into the 
intent of the North Carolina legislature, it 
should not have been resolved through 
summary Judgment 

Under this Court’s decisions, the “analytically distinct” 
claim recognized in Shaw v. Reno, 509 U.S. 630 (1993) requires 
a particularly fact-intensive inquiry and is therefore ill-suited to. 
determination by summary judgment. Many factors influence 
the redistricting process, but only the predominance of one 
factor -- race -- will trigger strict scrutiny. See Miller v. 
Johnson, 515 U.S. 900, 913 (1995). Accordingly, a “searching 
inquiry is necessary before strict scrutiny can be found 
applicable.” Bush v. Vera, 517 U.S. 952, 958 (1996). 

In particular, resolution of this case will involve an 
inquiry into the intent of the North Carolina legislature through 
an examination of the motivation of legislators and an inquiry 

  

  

  

  
 



  

  

  

    

18 

into the justifications for creating the challenged districting plan. 
The ultimate conclusion about the predominance or non- 
predominance of race in the districting process is, as in other 
cases of intentional discrimination, purely factual. Pullman- 
Standard v. Swint, 456 U.S. 273, 289 ( 1982). But because the 
crucial facts at issue involve intent, they are rarely appropriate 
for determination on summary judgment. See Poller v. 
Columbia Broadcasting System, Inc., 368 U.S. 464, 473 (1962) 
("We believe that summary procedures should be used sparingly 
in complex antitrust litigation where motivation and intent play 
leading roles, the proof is largely in the hands of alleged 
conspirators, and hostile witnesses thicken the plot”).’ 

The lower federal courts have found summary judgment 
procedures particularly inappropriate in cases where intent is a 
critical issue and have made sparing use of the remedy. E.g., 

~ Lipsett v. University of Puerto Rico, 864 F.2d 881, 895 (1st 
Cir. 1988) (citing Poller). See Stepanischen v. Merchants 
Despatch Transportation Corp., 722 F.2d 922, 928 (1st Cir. 
1983); Bronze Shields, Inc. v. New Jersey Department of Civil 
Service, 667 F.2d 1074, 1087 (3d Cir. 1981), cert. denied, 458 
U.S. 1152 (1982). See also Smith v. University of North 
Carolina, 632 F.2d 316, 338 (4th Cir. 1980) (lower court did 
not err in denying motion for summary judgment where genuine 
issue of material fact existed regarding the reasons underlying 
  

~ "Tobe sure, such cases may still be resolved on summary judgment 
where the party opposing summary disposition fails to “offer[] any concrete 
evidence from which a [factfinder] could return a [judgment] in his favor.” 
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986) (distinguishing 
Poller). As we discuss below, however, that was not at all the situation in 
the instant matter. The State of North Carolina introduced substantial 
evidence that would support a judgment in its favor and was certainly 
sufficient to prevent entry of summary judgment for Appellees. 

  

 



  

19 

the defendant’s decision not to appoint or promote the plaintiff). 
Courts have noted that when the disputed issues concern intent 
or motivation, judgments about the credibility of witnesses by 
the finder of fact are of special importance and utility. See, e.g., 
Ross v. Communications Satellite Corp., 759 F.2d 355, 364 
(4th Cir. 1985). Consequently, the need for a court to engage 
in the difficult process of assessing the motivation, state of 
mind, and credibility of a decision maker is, by itself, a sufficient 
basis for denying summary judgment. See 10B Charles A. 
Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice 
and Procedure § 2730 (1998 ed.). 

Attempting to determine the role that race played in the 
redistricting process is a necessarily fact-intensive inquiry, 
requiring a court to engage in an exhaustive review of the 
legislative process. See Bush v. Vera, 517 U.S. at 959 (in 
“mixed motive” cases, “careful review” is necessary to 
determine application of strict scrutiny to electoral districts). 
Resolving the difficult question of legislative intent requires a 
review of direct evidence, such as the statements and testimony 
of legislators, as well as circumstantial evidence, such as district 
shape and demographics. 

These principles are reflected in the post-Shaw 
jurisprudence. In every case where a court has struck down a 
district pursuant to Shaw, it has relied on evidence, gained after 
a thorough review of the redistricting process, that race was the 
predominant factor in districting. For example, in Johnson v. 
Miller, 864 F. Supp. 1354 (S.D. Ga. 1994), aff'd, 515 U.S. 900 
(1995), the district court determined that race was the 
legislature’s dominant consideration in districting only after 
engaging in a detailed review of Georgia’s submissions to the 
Department of Justice in the preclearance process under Section 

    
  
  

 



  

  

  

  

  

20 

5 of the Voting Rights Act. Recognizing that legislative 

redistricting is the end result of balancing many factors, 864 F. 

Supp. at 1363, the court conducted an exhaustive review of 

committee meetings and debates, id. at 1363-68, competing 

proposals considered by the legislature, id. at 1363, the extent 

and type of computer assistance utilized during the redistricting 

process, id. at 1363 n.2, advocacy positions adopted by 

individual legislators, id. at 1363, Section 5 submission 

materials, id. at 1376, and legislative reaction to the denial of 

preclearance, id. at 1363-66. The court reviewed documentary 

evidence on each of these subjects and also heard direct 

testimony from those involved with the legislative process in 

order to put that evidence in its proper context. 

The district court in Vera v. Richards, 861 F. Supp. 

1304 (S.D. Tex. 1994), aff'd sub nom. Bush v. Vera, 517 U.S. 

952 (1996), also premised its determination that race 

predominated on a thorough review of the intricacies of the 

challenged redistricting process. The court reviewed transcripts 

of and testimony about the legislature’s floor debates and 

regional outreach hearings, id. at 1313-14, Section 5 

submissions, id. at 1315, alternative redistricting plans 

considered during the legislative process, id. at 1330-31, 

newspaper articles published before and during the redistricting 

process, id. at 1319, and the use of racial data in the drawing of 

boundary lines, id. at 1318-19. Moreover, the court looked 

beyond the bounds of the challenge at issue to review testimony 

of legislators in previous litigation regarding the same 

redistricting process. Id. at 1319-21, 1324. As a result, the 

court was able to ferret out inconsistencies and conclude that 

“the testimony submitted in this racial gerrymandering case is at 

first glance starkly at odds with the explanation for the district’s 

  

 



  

  

21 

severely contorted boundaries offered in [the previous 
litigation].” Id. at 1321. 

In Smith v. Beasley, 946 F. Supp. 1174 (D.S.C. 1996), 

the district court conducted a similar review of the entire 
legislative process before determining that race dominated the 

redistricting experience, including a review of statements and 
evidence presented in related litigation and testimony before 

legislative committees. See, e.g., id., 946 F. Supp. at 1178-87. 

In making this thorough review, the court took note of the lack 

of legislative “hearings or evidence or findings as to” 

compliance with traditional redistricting factors and compliance 

with Section 2 of the Voting Rights Act, concluding that these 

omissions were evidence that race was the predominant factor. 

Id. at 1192-93. 

Courts have not reviewed the statements and actions of 
legislators in a vacuum, nor have they focused solely on 

legislators’ or observers’ statements regarding the role of race 

in the redistricting process. Rather, consistent with this 

Court’s Shaw jurisprudence, they have also examined the 

influence of “traditional” redistricting factors and alternative 

justifications for district configurations. See, e.g., Bush v. Vera, 

517 U.S. at 959 (discussing significance of traditional districting 
principles). In determining the extent to which traditional 

districting factors have played a role, courts have looked to 

demographic data, the shape of the challenged districts, the 

legislature’s use of racial data, the legislature’s consideration 

and protection of communities of interest, protection of 

incumbent interests, and the history of discrimination in the 

jurisdiction. See, e.g., Vera, 861 F. Supp. at 1311 (review of 

racial demographics and comparison of 1980 and 1990 census); 

id. at 1309 (examining availability of racial data relative to 

    

       



  

  

22 

availability of data on other districting factors); Miller, 864 F. 

Supp. at 1375-76 (reviewing substantial evidence received from 

expert witnesses, religious leaders, community activists, and 

legislators regarding communities of interest); Vera, 861 F. 

Supp. at 1322 (same); Vera, 861 F. Supp. at 1312, 1317 

(extensive review of incumbency interests including historical 

accommodations, alternative incumbent-sponsored plans, 

negotiations, and maps). It is only after finding that the 

evidence “advertises ‘disregard’ for these considerations in 

favor of race-based line drawing,” that a court can safely 

conclude that race was the predominant factor affecting a given 

districting plan. Miller, 864 F. Supp. at 1369. 

No such intensive factual inquiry was conducted by the 

court below, despite substantial conflicting evidence on the key 

issues of purpose and intent submitted by the parties, which 

should have occasioned an evidentiary hearing. Instead, and 
contrary to the decisional principles announced and applied in 

the cases discussed above, the court ignored all factual 

complexities, disregarded state legislators’ sworn affidavits 

- without hearing their testimony and judging their credibility, and 

granted summary judgment to plaintiffs. Unlike the courts 

discussed above, each of which weighed a substantial body of 
evidence and considered the multiplicity of factors relevant to 

a legislature’s redistricting efforts, the court below reached its 

conclusion merely by reviewing the configuration of the 

, challenged district and examining statistics about a few of the 
more than 150 precincts included within it -- then ruling 

summarily in favor of the Appellees. That error warrants 

reversal of its judgment. 

   



  

  

23 

B. Because this case necessarily concerns issues 

arising under the Voting Rights Act, it 

should not have been resolved through 

summary judgment 

Evidence was presented in this case that the 

configuration of the 1997 Remedial Plan was justified by the 

State’s need to comply with Section 2 of the Voting Rights Act, 

42 U.S.C. § 1973, so as to ensure that minority voting strength 

was not diluted during the redistricting process. In order to 

determine if compliance with the Act is a compelling 

justification for a particular plan in a particular jurisdiction, a 

district court would be required to examine the evidence 

relating to proving a vote dilution claim under Section 2. This 

inquiry is also not well suited for summary adjudication. 

In assessing whether a given plan dilutes minority voting 

strength, this Court requires trial courts to engage in “a 

searching practical evaluation of the past and present reality” 

based on a “functional view of the political process.” 
Thornburg v. Gingles, 478 U.S. 30, 45 (1986) (internal citation 

and quotation omitted). The Court has instructed that this 
inquiry should include an examination of the history of political 

discrimination in the jurisdiction, the extent of racially polarized 

voting, and the extent to which minorities have been elected to 

political office. Id. at 44-45. This inquiry is fact-intensive and, 

given the depth of the analysis required, courts are reluctant to 

grant summary judgment in cases involving Section 2, preferring 

instead to evaluate disputes over the three Gingles 

preconditions, and conclusions based upon the totality of the 

circumstances, after a trial. See, e.g., Jeffers v. Clinton, 839 F. 

Supp. 612, 616 (E.D. Ark. 1993) (denying summary judgment 

in Section 2 case where material issues remained unresolved 

  

  

      
 



  

  

  

      

  

  

24 

since “information needed to determine district lines and 

population percentages” in hypothetical plan offered by 

plaintiffs to establish first Gingles precondition was disputed by 

the parties); Johnson v. DeSoto County Board of 
Commissioners, 868 F. Supp. 1376, 1382 (M.D. Fla. 1994) 

(summary judgment denied because “under the totality of the 

circumstances, Plaintiffs’ ability to meet the third necessary 

condition is a genuinely disputed material issue of fact which 

precludes summary judgment”), rev'd on other grounds, 72 

F.3d 1556 (11th Cir. 1996); Mallory v. Eyrich, 707 F. Supp. 

947, 954 (S.D. Ohio 1994) (denial of summary judgment to 

permit full development of record in order to determine the 

proper interpretation of the facts and to resolve disputed expert 

analysis). Indeed, the district court in Johnson v. DeSoto 

County Board of Commissioners held that “[t]he degree of 

racial bloc voting that is cognizable as an element of a § 2 vote 

dilution claim will vary according to a variety of factual 

circumstances.” 868 F. Supp. at 1382 (citing Gingles, 478 U.S. 

at 57-58). In denying the motion for summary judgment in the 

DeSoto case, the court noted that under the totality of the 

circumstances, determining minority voters’ ability to 

participate equally in the political process necessarily requires 

“an intense local appraisal of the design and impact” of the 

disputed electoral schemes. Jd. (citing Gingles, 478 U.S. at 79). 

In deciding cases brought under the Shaw regime, 

district courts typically inquire and draw conclusions regarding 

the role of Voting Rights Act considerations in the redistricting. 

process only after a trial on the merits. For example, in Vera, 

the district court acknowledged that “the Legislature embarked 

upon Congressional redistricting against the legal backdrop of 

the Voting Rights Act,” 861 F. Supp. at 1314, and proceeded 

    

 



  

25 

to examine factors typically at issue in voting rights litigation. 

Relying on testimony before the legislature on the requirements 

of the Voting Rights Act and the narrative included with the 

State’s Section 5 submissions, the court sought to ascertain the 

legislature’s interpretation of the requirements of the Voting 

Rights Act. Id. at. 1315-16. The court’s review also included 

consideration of Texas’ “well-documented history of 

discrimination” in the electoral process, as well as extensive, yet 

conflicting, evidence from social scientists, community activists, 

and legislators regarding racial polarization in Texas and the 

existence of coalition voting between African-American and 

Hispanic voters, as well as white bloc voting. Id. at 1315-17. 

Similarly, in Smith v. Beasley, the court sought to 

determine the role the Voting Rights Act played in the South 

Carolina redistricting process through a review of the 

redistricting subcommittee’s guidelines for addressing the 

requirements of Sections 2 and 5 of the Voting Rights Act, and 

evidence establishing that “in South Carolina, voting has been, 

and still is, polarized by race.” 946 F. Supp. at 1179, 1202. 

The district court in this case never engaged in the level 

of analysis necessary to evaluate whether the creation of the 

1997 Remedial Plan was justified in light of the State's 

responsibilities under the Voting Rights Act. Indeed, if the 

district court had timely recognized the Smallwood Appellants’ 

right to intervene before ruling, they would have occupied a role 

similar to the one assumed by the defendant-intervenors in Shaw 

v. Hum}? introducing evidence and presenting arguments 

concerning the State’s responsibilities under the Voting Rights 

Act. For example, as parties, the Smallwood Appellants would 

  

8See supra note 4. 

      
    

 



  

  
  

  

26 

have presented evidence regarding the history of political 

exclusion of the State’s African-American population and would 

have argued that the State was required to consider this history, 

and take particular care not to dilute minority voting strength, 

in fashioning a remedy for the constitutional violation found by 

this Court. Also, the Smallwood Appellants could have 

introduced evidence showing that the Appellees’ proposed plans 

might be vulnerable to an attack under Section 2 of the Voting 

Rights Act. 

Because Shaw cases often involve issues arising under 

the Voting Rights Act, they require full development of the 

underlying facts for proper resolution, which will ordinarily 

necessitate evidentiary hearings. See County Council v. United 

States, 555 F. Supp. 694, 706 (D.D.C. 1983) (resolution of 

issues raised by violations of Section 5 and Section 2 of the 

Voting Rights Act “depends on facts which should be 

developed at trial”); City of Rome v. United States, 450 F. 

Supp. 378, 384 (D.D.C. 1978) (determination of issues raised 

by the Voting Rights Act should be resolved after a full 

opportunity for discovery). For this reason, the grant of 

summary judgment below was erroneous. 

   



  

  

27 

II. The District Court Erred in Ruling that Race Was 
the Predominant Factor in the Creation of the 

Twelfth Congressional District 

A. The court erred in sanctioning the Appellees’ 
argument that race predominated in the 

development of the 1997 Remedial Plan 

because that plan did not evidence the 

legislature’s complete abandonment of the 
1992 Plan as a starting point for fashioning 
the remedy. 

The Appellees proposed below, and the district court 
tacitly approved, a requirement that the State abandon the 
previously challenged plan in its entirety and develop a remedial 
‘plan without reference to any of the features of the prior plan, 
including even the race-neutral redistricting principles the State 
chose to recognize in fashioning the earlier plan. As discussed 
supra in the Statement of the Case, Appellees argued below that 
the 1997 Remedial Plan must be declared unconstitutional 
because it was the “fruit of the poisonous tree” (the plan 
invalidated by Shaw v. Hunt). 

Appellees’ “fruit of the poisonous tree” theory would 
require a state remedying a Shaw violation to do substantially 
more than correct the constitutional defect found in a 
challenged district; under Appellees’ approach, nothing less than 
the complete reconstruction of the invalidated plan is an 
adequate remedy for the constitutional violation. This novel 
theory is fundamentally at odds with this Court’s precedents. 
There is no support in the decisions of this Court for the 
contention that a redistricting plan drawn to remedy a 
constitutional violation under Shaw is constitutionally invalid 
unless the State completely discards its original plan and 

  

  

    
  

 



  

  

  

  

28 

abandons even the traditional, race-neutral redistricting 

considerations that were recognized in the original plan. 

Appellees are entitled only to have the legislature devise 

a plan in which traditional, race-neutral redistricting principles 

are not needlessly subordinated to racial considerations. The 

“fruit of the poisonous tree” argument places the State in the 

untenable position of ignoring the complicated mix of factors 

that necessarily and legitimately influence the redistricting 

process, in order to cure the prior constitutional violation. This 
approach makes little real-world sense. The drafter of a 

remedial plan designed to cure a defect in one district in a prior 
plan must, of necessity, consider a substantial body of political, 

geographic, and demographic data, as well as one-person, one- 

vote requirements and traditional redistricting policies in the 

jurisdiction. Decisions about reshaping the challenged district 

simply cannot be made without regard to their effect on the 

overall plan, including their effect on prior partisan political 

balances. It would, therefore, be entirely realistic for a State to 

seek to make the fewest alterations possible to a plan, if doing 

so would assist in meeting its other redistricting goals. 

Appellees’ argument would seriously impact settlement 

and remedial possibilities in voting rights cases, as it would 

dramatically limit States’ abilities to develop plans that cure 

statutory and Constitutional objections while also taking into 

consideration legitimate political interests and other race-neutral 

redistricting criteria. 

Rather than demand that a State forsake the myriad 

interests that it attempted to recognize and promote in a 

challenged plan, this Court has consistently accorded great 

deference to the States’ policy choices in the redistricting 

process and has repeatedly held that the redistricting policy 

   



  

  

29 

choices of the State should be set aside by a federal court only 
to the extent necessary to remedy a violation of federal law. 
See, e.g., White v. Weiser, 412 U.S. 783, 795 (1973) (in 

devising a remedy for a federal constitutional violation, a court 

“should follow the policies and preferences of the State, 
expressed in statutory and constitutional provisions or in 
reapportionment plans proposed by the state legislature, 
whenever adherence to state policy does not detract from the 
requirements of the Federal Constitutions”); see also Voinovich 
v. Quilter, 507 U.S. 146, 156 (1993) (“[F]ederal courts are 
bound to respect the States’ apportionment choices unless those 
choices contravene federal requirements”). 

When a legislative body devises a remedial plan, a court 

must “accord great deference to legislative judgments about the 
exact nature and scope of the proposed remedy.” McGhee v. 

Granville County, 860 F.2d 110, 115 (4th Cir. 1988). See also 

White v. Weiser, 412 U.S. at 795-96 (1973); Tallahassee 

Branch of NAACP v. Leon County, 827 F.2d 1436, 1440 (11th 
Cir. 1987). Where, as here, the State has enacted a new plan 
that fully remedies the Shaw violation and complies with all 
applicable federal and state constitutional and - statutory 
provisions, there is no basis for federal judicial interference with 
its implementation. Wise v. Lipscomb, 437 U.S. 535, 540 
(1978), see also Burns v. Richardson, 384 U.S. 73, 85 (1966) 

(“A State’s freedom of choice to devise substitutes for an 
apportionment plan found unconstitutional, either as a whole or 
in part, should not be restricted beyond the clear commands of 

the Equal Protection Clause”); Shaw v. Hunt, 517 U.S. at 899 

n.9 (“states retain broad discretion in drawing districts to 

comply with the mandate of § 2”) (citing Voinovich v. Quilter, 

507 U.S. 146 (1993) and Growe v. Emison, 507 U.S. 25 

    

      
  

 



    
  

  

30 

(1993)). 

Moreover, States such as North Carolina have a 

legitimate interest in minimizing disruption to their political 

process by, for example, ensuring that incumbents are 

protected, prior partisan balances are maintained, and districts 

surrounding the invalidated district(s) are preserved intact to the 

extent possible in a remedial plan.’ In fact, this Court and lower 

courts have recognized the necessity for jurisdictions to 

consider these issues as they devise remedial plans and have 

thus accorded states broad deference in the redistricting 

process. See, e.g., Lawyer v. Department of Justice, 521 U.S. 

___,117 8. Ct. at 2192-3 (1997), aff’g Scott v. United States, 

920 F. Supp. 1248, 1255 (M.D. Fla. 1996); Shaw v. Hunt, 517 

US. at 899 n.9; Miller v. Johnson, 515 U.S. at 915; Upham v. 
Seamon, 456 U.S. 37, 42 (1982); White v. Weiser, 412 U.S. at 

794-95 (1973).%° 

  

® Although it is undisputed that the State sought to protect all of the 
incumbent members of the congressional delegation and preserve the 

partisan balance of six Democrats and six Republicans that resulted from 
elections held under its original plan, Appellees have suggested that the State 

must exclude the Twelfth District's African-American Congressman from 
such protection. See Motion to Dismiss or, in the Alternative, to Affirm at 

27. By arguing that it was per se unconstitutional for the State to protect the 

incumbency of the Twelfth District’s African-American Congressman to the 

same extent as it protected other incumbent members of Congress, Appellees 

urge the adoption of a double standard that is intolerable under the decisions 

of this Court. See, e.g., Miller v. Johnson, 515 U.S. at 928 (O'Connor, J., 

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

1%This is consistent with this Court’s longstanding view that the 

governmental entity must be given the first opportunity to propose a remedial 
plan after a voting rights violation is found. McDaniel v. Sanchez, 452 U.S. 

130, 150 n.30 (1981). - 

   



  

  

31 

This Court’s decision last term in Lawyer underscores 

the district court’s error in adopting Appellees’ “fruit of the 

poisonous tree” theory. Both the district court in Scott and this 

Court in Lawyer upheld a Florida state legislative district that 

was redrawn after a finding of a Shaw violation. This Court 

upheld the remedial district notwithstanding (a) its resemblance 

to the original plan’s 21st Senate District, (b) the fact that the 

plan’s drafters used the original 1992 redistricting plan as a 
starting point, and (c) the district’s continued majority-minority 

status. Neither this Court nor the district court deemed 

Florida's remedial plan “tainted” simply because it used the 

challenged plan as its base. Moreover, neither court questioned 

Florida's stated, race-neutral interest in preserving electoral 

stability by avoiding needless disruption of the political 

relationships that had developed between the time of the 

original enactment of the challenged plan and the date that the 

remedial plan was devised. 

If the court below had properly applied these principles, 

it would have rejected appellees’ “fruit of the poisonous tree” 

argument and approved the 1997 Remedial Plan. The district 

court was bound to approve the legislature’s remedial plan to 

the extent that it did not violate any federal or state 

constitutional or statutory requirements. The court below did 

not have the remedial power, and the Appellees do not have a 

constitutional right, to dictate the State’s redistricting priorities 

beyond what is required to eliminate the equal protection 

violation this Court initially found in Shaw v. Hunt. This Court 
should therefore reverse the district court’s erroneous adoption 

of the “fruit of the poisonous tree” theory and approve the 1997 

Remedial Plan enacted by the North Carolina legislature. 

  

    
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B. In jurisdictions such as North Carolina, with 

a history of prior discrimination and 

minority vote dilution, and in which voting 

patterns remain racially polarized, 

districting must be sufficiently race- 

conscious to avoid violating Section 2 of the 

Voting Rights Act, but that circumstance 

does not establish that race “predominates” 

so as to trigger “strict scrutiny.” 

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

below failed to assess most of the evidence presented by the 

parties on Appellees’ motion for summary judgment. Instead, 

the court recited statistics concerning the racial composition and 

political party registration of voters in a small number of 

‘precincts placed within or without the Twelfth District by the 

1997 Remedial Plan adopted by the North Carolina General 

Assembly. Without even addressing the other factors that state 

legislators took into account in the redistricting process, the 

court concluded from its limited factual recitation not only that 

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

struck down. 

In the circumstances of this case, this ruling amounted 

to a holding, contrary to this Court’s repeated admonitions, that 

race-conscious districting is presumptively unconstitutional. 

Because such a rule is incapable of rational application, would 

eviscerate the protections against minority vote dilution 

provided by Section 2 of the Voting Rights Act of 1965, 42 

U.S.C. § 1973, and is flatly inconsistent with this Court’s Shaw 

decisions, the judgment below must be reversed. 

As this Court has held, Appellees’ evidentiary burden in 

this case is to show that “race for its own sake, and not other 

     



  

  

33 

districting principles, was the legislature’s dominant and 
controlling rationale in drawing its district lines,” Bush v. Vera, 
517 U.S. at 952, quoting Miller v. Johnson, 515 U.S. at 913, 
and “that other, legitimate districting principles were 
‘subordinated’ to race.” Bush, 517 U.S. at 958. See generally 
id. at 259-68. It is insufficient for Appellees to show, as they 
attempted to do here, merely that inclusion of African-American 
voters was one factor influencing the contours of a district in 
the plan adopted by the legislature — or even that the entire 
districting process was carried out “with consciousness of race,” 
Bush, 517 U.S. at 1051. As Justice O’Connor has observed: 

States may intentionally create majority-minority 
districts and may otherwise take race into consideration, 
without coming under strict scrutiny. Only if traditional 
districting criteria are neglected, and that neglect is 
predominantly due to the misuse of race, does strict 
scrutiny apply. 

Bush, 517 U.S. at 993. (O’Connor, J., concurring) (emphasis 
in original); see also United States v. Hays, 515 U.S. 737, 745 
(1995) (“We recognized in Shaw. . .that the ‘legislature always 
is aware of race when it draws district lines, just as it is aware 
of age, economic status, religious and political persuasion, and 
a variety of other demographic factors. That sort of race 
consciousness does not lead inevitably to impermissible race 
discrimination’) (citation omitted) (emphasis in original). 

In Shaw v. Reno, 509 U.S. at 653, this Court held that 
it would be the extraordinary case in which strict scrutiny would 
apply. Indeed, in Shaw, Miller, and Bush, the district courts 
applied strict scrutiny only after they determined that race 
played a predominant role in the design of the districts at issue. 
Miller, 515 U.S. at 928 (O’Connor, J., concurring); Shaw v. 

      

  

    
  
 



  

34 

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

determinations were not based upon mere “race consciousness.” 

For example, in Shaw, a full trial on the merits developed what 

this Court termed sufficient “direct evidence” that the State’s 

“overriding purpose” was to “create two congressional districts 

with effective black voting majorities” and that other 

considerations “came into play only after the race-based 

decision had been made.” Shaw, 517 U.S. at 906 (original 

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

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

by the General Assembly to create a majority black district,” 

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

of the district would “violate all reasonable standards of 

compactness and contiguity.” Id. at 919. In granting summary 

judgment to Appellees in this matter, the court below made no 

such findings. 

Equally significant, the court below failed to give any 

consideration — much less appropriate weight — to the need of 

the North Carolina General Assembly, in any redistricting that 

it undertook, -to be sufficiently “race conscious” so as to avoid 

diluting minority voting strength. Although the General 

Assembly’s primary goals in enacting the 1997 Remedial Plan 

were to correct the prior constitutional violation found by this 

Court in Shaw v. Hunt and to preserve the congressional 

delegation’s partisan balance, the State was also under an 

obligation to fulfill these objectives without diluting minority 

voting strength. 

In Shaw v. Hunt, the Court assumed without argument 

that “§ 2 could be a compelling interest” justifying even a plan 

drawn predominantly on a racial basis, if the “[North Carolina] 

. General Assembly believed a second majority-minority district 

   



  

  

33 

was needed in order not to violate § 2, and. . .the legislature at 
the time it acted had a strong basis in evidence to support that 
conclusion” when it created the 1992 plan. Shaw, 517 U.S. at 
914." See also Miller, 515 U.S. at 915 (race-consciousness in 
drawing district lines would not alone render a districting plan 
presumptively unconstitutional). 

Similarly, in Bush this Court stated that “[s]trict scrutiny 
does not apply merely because redistricting is performed with 
consciousness of race. . . . Nor does it apply to all cases of 

intentional creation of majority-minority districts.” 517 U.S. at 
958 (citations omitted). The point is further emphasized by 
Justice O’Connor’s separate concurrence in Bush, which makes 
clear that nothing in Shaw or its progeny should be interpreted ; 
as calling into question the continued importance of complying 

with Section 2 of the Voting Rights Act. See id at 990. 

(O’Connor, J., concurring). 

Justice O’Connor specifically concluded that States have 
a compelling interest in complying with Section 2 of the Voting 

Rights Act “as this Court has interpreted it,” id at 992.1 

  

"The Court nonetheless held the 1992 Plan unconstitutional 
. because, it found, District 12 in that 1992 Plan did not encompass a 
reasonably geographically compact minority population and, therefore, 
“where that district sits,” ““there neither has been a wrong nor can there be 
aremedy.”™ 517 U.S. at 916. The Court explained that “[w]here, as here, we 
assume avoidance of § 2 liability to be a compelling state interest, we think 
that the racial classification would have to realize that goal; the legislative 
action must, at a minimum, remedy the anticipated violation or achieve 
compliance to be narrowly tailored.” Shaw, 517 U.S. at 915-16 (footnote 
omitted). : 

Four other members of the Court clearly agree with Justice 
O'Connor that States have a compelling interest in avoiding minority vote 

    

  

      
    
 



  

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Justice O’Connor went on to find that Texas had a strong basis 
to believe that a majority-minority district should be drawn in 
Dallas, because voting was racially polarized and it was possible 
to draw a reasonably compact district with a substantial 
African-American population. Jd at 994. Thus, Justice 
O’Connor’s opinion confirms that reasonably compact majority- 
black districts are not inevitably subject to challenge under the 
“analytically distinct” constitutional claim recognized in Shaw 
Vv. Reno, and that States continue to have a compelling interest 
in complying with the Voting Rights Act. See also Lawyer v. 
Department of Justice, 521 U.S. 567 (1997) (upholding the - 
constitutionality of a Florida state legislative districting plan that 
was drawn with conscious consideration of race to settle 
litigation challenging prior plan, creating majority-minority . 
district that afforded minority voters opportunity to elect 
candidates of choice that was somewhat irregularly shaped and 
that split county and city boundaries); 4brams v. Johnson, 521 
U.S. 74 (1997) (approving congressional districting plan for 
Georgia having majority-black district); King v. State Board of 
Elections, . US... 1138.Ci. 877 (1998) (per curiam) 
(summarily affirming district court ruling upholding the 
constitutionality of Illinois’ Fourth Congressional District); 
  

dilution and in complying with Section 2 of the Voting Rights Act 
notwithstanding their dissent from the decision to invalidate the challenged 
North Carolina and Texas plans. See Bush, 517 U.S. at 1003 (Stevens, J, 
joined by Ginsburg and Breyer, JJ., dissenting); id. at 1045 (Souter, J., 
joined by Ginsburg and Breyer, JJ., dissenting). : 

“However, because Texas had not drawn a reasonably compact 
district, Justice O’Connor concluded that the district was subject to strict 
scrutiny and was not narrowly tailored to effectuate the State’s compelling 
interest in avoiding minority vote dilution and complying with the Act. Jd. 
at 994. 

 



  

37 

DeWitt v. Wilson, 856 F. Supp. 1409, 1413-14 (E.D. Cal. 1994) 
(intentional creation of majority-minority districts does not 
violate Constitution when redistricting plan “evidences a 
judicious and proper balancing of the many factors appropriate 
to redistricting, one of which was the consideration of the 
application of the Voting Rights Act’s objective of assuring that 
minority voters are not denied the chance to effectively 
influence the political process”), aff'd, 515 U.S. 1170 (1995). 

Thus, even if the Twelfth Congressional District created 
by the 1997 Remedial Plan had been a majority-minority district 
— which it is not — that would not compel its invalidation. To 
hold otherwise in reviewing a redistricting measure from a State 
such as North Carolina, which has a long history of official 
discrimination against African Americans, including through 
creation of electoral plans that diluted their voting strength, see 
Thornburg v. Gingles, and in which there continues to be an 
evident pattern of racially polarized voting, would effectively 
nullify Section 2 of the Voting Rights Act. It would label any 
district that matched the hypothetical one described by plaintiffs 
in a Section 2 case to meet the first Gingles precondition, see 
478 U.S. at 49, as the product of a “racial gerrymander” 
condemned by Shaw, notwithstanding this Court’s repeated 
statements that Thornburg and Shaw can coexist so long as 
remedial Section 2 plans are narrowly tailored. Nothing in this 

  

  

  
  

YA further understanding of the DeWitt decision can be gained by 
reviewing the decision of the California Supreme Court that created the 
redistricting plans challenged in DeWitt. See Wilson v. Eu, 823 P.2d 545, 
563-64, 582, 583-84, 594, 1 Cal. 4th 707, 746, 776, 775, 790, 4 Cal. Rptr. 
2d 379, 397-8, 416, 417-8, 428 (1992) (describing the various special 
efforts taken to create districts that would comply with the Voting Rights 
Act).       
     



    

  

38 

Court’s decisions suggests that such a rule is correct. 

Indeed, this Court’s decision in Lawyer is directly to the 

contrary. Lawyer is the only case considered by this Court in 

the post-Shaw era that involves a legislatively drawn plan 

created to remedy alleged constitutional violations. There, the 

district court approved a settlement plan that reduced the total 

minority voting-age population in the challenged district from 

an original 55.3 percent to 51.2 percent through reconfiguration 

of the district to one that was characterized as still somewhat 

oddly shaped, albeit “less strained and irregular.” Scoft v. 

United States, 920 F. Supp. 1248, 1255 (M.D. Fla. 1996), qff'd 

sub nom. Lawyer v. Department of Justice, 521 U.S. 567 

(1997). The most important consideration for the district court 

in determining whether it would approve the new boundaries 
was that the new plan “offers to any candidate, without regard 

to race, the opportunity to seek elective office and both a fair 

chance to win and the usual risk of defeat.” 920 F. Supp. at 

1256. 

In affirming its judgment, this Court noted that the 

district is not majority-black, a factor that it said “supports the 

District Court’s finding that the district is not a ‘safe’ one for 

black-preferred candidates, but one that ‘offers to any 

candidate, without regard to race, the opportunity’ to seek and 

be elected to office.” Lawyer, 521 U.S. at ___, 117 S. Ct. at 

2195 (quoting and citing Scot, 920 F. Supp. at 1256). 

Accordingly, this Court upheld the settlement, finding that race 
did not predominate and subordinate Florida's traditional 

redistricting criteria. Id. at 2195. 

The Court of Appeals for the Fifth Circuit applied the 

same principles in Clark v. Calhoun County, 88 F.3d 1393 (5th 

Cir. 1996) (Higginbotham, J.). There, the unanimous panel 

  

 



  

  

39 

specifically rejected the argument made by defendants that there 
could be no constitutional remedy for plaintiffs’ claimed Section 
2 violation because creation of a district that matched one of the 
illustrative “Gingles factor one” plans would require that race 
predominate in the redistricting process, in violation of Miller 
v. Johnson. The Fifth Circuit recognized that this argument was 
the equivalent of declaring all majority-minority districts to be 
per se unconstitutional, contrary to this Court’s holdings. 
Instead, it ruled, a race-conscious Section 2 remedial plan is 
acceptable if it is narrowly tailored and it “substantially 
addresses’ the violation and “does not deviate substantially 
from a hypothetical court-drawn § 2 district for predominantly 
racial reasons.” Clark, 88 F.3d at 1405 (quoting Bush, 517 
U.S. at 994 (O’Connor, J., concurring), 996 (Kennedy, J. 
concurring) and citing Shaw v. Hunt, 517 U.S. at 997). 

As in Lawyer and Clark, the 1997 Remedial Plan 
approved by the original district court in Shaw v. Hunt passes 
constitutional muster and should have been accepted by the 
court below. District 12 in that plan is significantly more 
compact geographically than it was in the 1992 Plan. The new 
District 12 contains parts of six counties, rather than ten, and it 
does not have any areas of only “point contiguity.” In the 1992 
plan, District 12’s boundaries divided 48 precincts, while the 
1997 Remedial Plan divides only one. The boundaries of the 
new District 12 were determined by partisan considerations and 
a desire to have an urban, Democratic district in the Piedmont 
region. See NC. J.S. App. at 72a-75a (Affidavit of Senator Roy 
A. Cooper, IIT); Id. at 81a-82a (Affidavit of Representative W. 
Edwin McMahan). District 12’s African-American voting-age 
population was reduced from the original 53.34 percent in the 
1992 plan to 43.36 percent. Jt. App. at 111 - 115. Finally, to 

    

  

      
    
 



  

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the extent that race was considered in fashioning the district, it 

did not predominate because the new district is “narrowly 

tailored” to address North Carolina’s continuing obligation to 

avoid diluting minority voting strength in the course of 

remedying the prior constitutional wrong. 

The contrary conclusion of the court below was 

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

should be reversed. 

III. Even if Race Predominated in its Creation, the 

District Court Erred in Never Determining if the 

State had a Compelling Justification for Creating a 

Narrowly Tailored District 12 

Even if, arguendo, the district court was correct to find 

that race was the predominant factor in the drawing of District 

12, it was error for the court not to consider whether it was 

narrowly tailored to achieve a compelling governmental interest. 

As discussed, the district court concluded that, in drafting the 

1997 Remedial Plan, the State disregarded traditional 

redistricting criteria and found that race was the predominant 

factor in the creation of District 12. But, the court never 

engaged in a strict scrutiny analysis, assessing whether District 

12 was narrowly tailored to satisfy a compelling justification. 

Rather, the court determined that its finding of the 

predominance of racial considerations alone was sufficient to 

condemn District 12. 

Even if a court finds that race predominated in the 

redistricting process, its inquiry does not end. This Court’s 

Shaw jurisprudence requires that a court assess whether there 

was a compelling justification for a plan drawn with race as a 

predominant factor, and whether the plan was narrowly tailored 

  

 



  

  

41 

to serve that justification. See, e.g., Shaw, 517 U.S. at 914 
(assuming without argument that Ҥ 2 could be a compelling 
interest”); Miller, 515 U.S. at 915 (race-consciousness in 
drawing district lines would not alone render a districting plan 
presumptively unconstitutional). 

If the district court had engaged in this analysis, for the 
reasons discussed above it would have had to conclude that the 
1997 Remedial Plan is justified. As discussed, the summary 
judgment record indicates that, in creating the plan, the 
legislature was aware of North Carolina’s long history of 
official discrimination against African-Americans and their 
exclusion from the political process due to state and private 
action. Moreover, there was evidence that the State sought to 
“provid[e] minority voters a fair opportunity to elect 
representatives of their choice in at least two districts (Districts 
1 and 12),” NC. J.S. App. at 64a, and that District 12 does 
afford African-American voters a fair chance to elect their 
candidate of choice. See NC. J.S. App. at 66a. The district 
court erred in not engaging in the rigorous strict scrutiny inquiry 
required by this Court. | : 

    

  

           



  

  

  

CONCLUSION 

For the foregoing reasons, this Court should reverse the 

judgment of the district court and enter judgment for 

defendants. In the alternative, this Court should vacate the 

judgment of the district court and remand the case for trial. 

Respectfully submitted, 

ELAINE R. JONES 

Director-Counsel 

THEODORE M. SHAW 

NORMAN J. CHACHKIN 

JACQUELINE A. BERRIEN 
VICTOR A. BOLDEN 

DEBORAH N. ARCHER 

NAACP LEGAL DEFENSE 

& EDUCATIONAL FUND, INC. 
99 Hudson Street, Suite 1600 

New York, NY 10013 

(212) 219-1900 

ADAM STEIN 

FERGUSON, STEIN, WALLAS, 
ADKINS, GRESHAM & 
SUMTER, P.A. re 

312 West Franklin Street 

Chapel Hill, NC 27516 

(919) 933-5300 

TopD A. Cox* 

NAACP LEGAL DEFENSE 

& EDUCATIONAL FUND, INC. 

1444 Eye Street, NW 

10th Floor 
Washington, DC 20005 

(202) 682-1300 

| 

*Counsel of Record 

Attorneys for Appellant-Intervenors 

  

  

  

  
   



No. 98-85 

  

  

IN THE SUPREME COURT OF THE UNITED STATES 

October Term, 1998 

  

JAMES B. HUNT, JR, et al., 

  

  

Appellants, 

H Fah IVED and 

LIVERED 

NOV 10 1998 ALFRED SMALLWOOD, et al, 
Appellant-Intervenors, 

OFFICE OF THE v. 
SUPREME COURT, 08 |     — MARTIN CROMARTIE, et al, 

Appellees. 

  

CERTIFICATE OF SERVICE 

I, Todd A. Cox, a member of the Bar of this Court, hereby certify that on this 10th day of 

October, 1998, served by first-class mail, postage prepaid, a true and correct copy of the Brief of 

Appellant-Intervenors to Robinson O. Everett, Suite 300 First Union Naiiviial Baik Building, 

Post Office Box 586, Durham, North Carolina 27702 and Edwin M. Speas, Jr., Chief Deputy 

Attorney General and Tiare B. Smiley, Special Deputy Attorney General, North Carolina 

Department of Justice, Post Office Box 629, Raleigh, North Carolina 27602-0629, counsel for all 

of the appellants and appellees herein. I further certify that all parties required to be served have 

been served. N22 (7 gs 

Todd A. Cox 

NAACP Legal Defense 
& Educational Fund, Inc. 

1444 1 Street, N.W., 10th Floor 

Washington, D.C. 20005 

(202) 682-1300 

  

Counsel for Appellant-Intervenors