Correspondence from Cox to Stein Re: Memo from Cox to Jones, Press Briefing Talking Points, Sample Record Misrepresentations

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# >» 

  

MEMORANDUM 

To: Elaine R. Jones 

From: Todd A. Cox 

Re: U.S. Supreme Court Argument in Cromartie v. Hunt, November 27, 2000 

Date: November 15, 2000 

  

On November 27, 2000, the U.S. Supreme Court will hear oral arguments in Hunt v. 

Cromartie, No. 99-1864 and Smallwood v. Cromartie, No. 99-1865. These are consolidated 

appeals of the district court decision in Hunt v. Cromartie, No. 4:96-CV-104 (E.D.N.C. March 7, 

2000), a Fourteenth Amendment challenge to the constitutionality of North Carolina’s First and 

Twelfth Congressional Districts under the theories established in Shaw v. Reno, 509 U.S. 630 

(1993). LDF and our cooperating law firm of Ferguson, Stein, Wallas, Gresham & Sumter, 

represent African American and white voters (the Smallwood intervenor group) who have 

intervened to defend the districts’ constitutionality. Adam Stein, of Ferguson, Stein, will argue on 

behalf of our clients. This memorandum will briefly summarize the history of the case. 

BACKGROUND 

Shaw v. Reno and the Challenge to North Carolina’s Congressional Redistricting 

White voters filed a lawsuit under the Fourteenth Amendment challenging North 

Carolina’s 1992 congressional redistricting plan that sent the State’s first African American 

Representatives to Congress since Reconstruction. In that case, Shaw v. Reno, 509 U.S. 630 

(1993), the U.S. Supreme Court held for the first time that white voters could bring an action 

under the Fourteenth Amendment by alleging that a district is so extraordinarily bizarre in shape 

that, without sufficient justification, it could only be viewed as an effort to classify voters on the 

basis of race. The case went back to the district court for a trial after which the district court 

upheld the Twelfth District’s constitutionality. Again on appeal, in Shaw v. Hunt, 517 U.S. 899 

(1996), the U.S. Supreme Court this time invalidated the North Carolina Congressional 

redistricting plan, striking the Twelfth Congressional District as unconstitutional. 

Following the decision, the North Carolina General Assembly adopted a revised plan that 

created a new Twelfth District that was only 47 percent African American in total population 

(originally it was 53 percent total African American population). Although the First 

Congressional District in the 1992 Plan was never determined to be unconstitutional, the First 

District was also redrawn. While it remained a majority-African American district, its total 

African American population was reduced to 50.3 percent (originally it was 57.3 percent total 

African American population). In the next congressional elections, incumbent Representative 

Melvin Watt was re-elected to represent the new Twelfth Congressional District and incumbent 

 



# & 
Representative Eva Clayton was re-elected to represent the new First Congressional District. 

This plan was the subject of the challenge filed in Cromartie v. Hunt. 

Summary Judgment and Supreme Court Appeal in Cromartie v. Hunt 

A group of plaintiffs, comprised in part of the same voters who brought the initial Shaw 

case, filed Cromartie v. Hunt, seeking to have the new Twelfth and First Congressional Districts 

ruled unconstitutional racial gerrymanders. After a hearing in March 1998, during which the 

court refused to hear our arguments on the merits of the case and on the pending intervention 

motions, the court ruled without a trial that the Twelfth District was unconstitutional. Even 

though it was not a majority-African American district, the three-judge district court held that 

race was the primary motivation for District Twelve’s lines, as shown by its shape and the 

inclusion of certain majority-African American voting precincts and the exclusion of selected 

majority-white voting precincts. The three-judge district court also ordered the parties to proceed 

to trial on the constitutionality of the First District. The court permanently barred the State from 

using the redistricting plan and ordered the State to devise a new congressional plan before the 

1998 elections. 

Consequently, the State developed a new plan, but also appealed the three-judge district 

court’s decision to the U.S. Supreme Court. After the deadline for our clients to file an appeal of 

the court’s opinion, the three-judge district court finally granted our third motion to intervene. 

Therefore, we filed and the Supreme Court granted our motion to intervene as parties in the 

Supreme Court to press our clients’ rights on appeal and defend the Twelfth District. Meanwhile, 

elections were held under the new redistricting plan. Congressman Mel Watt and 

Congresswoman Eva Clayton ran under the new plan and won. 

On appeal, the Supreme Court reversed the district court judgment and held that the 

plaintiff-appellees were not entitled to summary judgment and that the Twelfth District was an 
unconstitutional racial gerrymander. Rather, the Court pointed to evidence that, in creating the 

Twelfth District, the North Carolina General Assembly “did no more than create a district of 

strong partisan Democrats,” Hunt v. Cromartie, 526 U.S. 541, 550 (1999), holding that “a 

jurisdiction may engage in constitutional political gerrymandering, even if it so happens that the 

most loyal Democrats happen to be black Democrats and even if the State were conscious of that 

fact.” Id. at 542 (emphasis in the original) (citing Bush v. Vera, 517 U.S. 952, 968 (1996); Shaw 

v. Hunt, 517 U.S. 899, 905 (1996); Miller v. Johnson, 515 U.S. 900, 916 (1995); Shaw v. Reno, 

509 U.S. 630, 646 (1993))'. The Court concluded: 

  

'LDF represented defendant-intervenor parties in Bush v. Vera, Shaw v. Hunt, Miller v. 

Johnson, and Shaw v. Reno and played a critical role in helping defend the districts challenged in 

these cases.  



  

® * 
Evidence that blacks constitute even a supermajority in one congressional district 

while amounting to less than a plurality in a neighboring district will not, by itself, 

suffice to prove that a jurisdiction was motivated by race in drawing its district 

lines when the evidence also shows a high correlation between race and party 

preference. 

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

THE TRIAL ON REMAND 

Although the Supreme Court issued its decision in Hunt v. Cromartie, in May, 1999 and 

despite the urgency of the State’s election schedule, the district court did not issue its discovery 

schedule until August 23, 1999, three months later. The district court set an expedited discovery 

and trial schedule and held a three day trial in November 1999. 

On March 8, 2000, over three months after an expedited November trial and ten months 

after the Supreme Court’s reversal of the entry of summary judgment, the district court issued its 

opinion. In the time that the trial court took to issue its opinion, candidates filed to run in, and the 

State began preparations for the May 2, 2000 primary. Moreover, the first absentee ballots for 

the congressional primary election would be cast on March 18, 2000. Based in large part on the 

reasoning used in its prior opinion, the district court again found that the Twelfth District was 

unconstitutional and barred the use of the district in the upcoming May 2, 2000 elections. 

However, the court found the First District constitutional. While ruling that the First District was 

a racial gerrymander, the court held that the district was narrowly tailored to meet North 

Carolina’s compelling state interest of complying with Section 2 of the Voting Rights Act, 42 

U.S.C. § 1973. Plaintiffs did not appeal the decision below regarding the First Congressional 

District. 

THE CURRENT SUPREME COURT APPEAL 

On behalf of our clients, LDF and the State of North Carolina, respectively, filed in the 

district court notices of appeal and requests for a stay pending appeal of the district court order 

striking the Twelfth District. Given the urgency of the election schedule, we also filed stay papers 

in the Supreme Court. In addition to discussing the irreparable injury that the state and the public 

in general would suffer if the state were forced to delay the upcoming election and redistrict, our 

stay papers focused on the particular injury African American voters would suffer in any electoral 

delay.” On Monday, March 13, 2000, the district court denied our motion for a stay. On March 

16, 2000, the Supreme Court granted our stay pending an appeal of the lower court decision 

  

*Altering the State’s regular election calendar, particularly at that late date would have 

contributed to low voter turnout. This result would have been exacerbated for minority groups, 

such as African Americans, since the effects of various socio-economic factors tend to result in 

lower levels of political participation. 

 



  

. # 
ruling that the Twelfth District was unconstitutional. 

The grant of the stay permitted the May 2, 2000 primary to proceed uninterrupted and 

permitted the state to use the current district lines, including the Twelfth District, for the election. 

This was a very significant victory for our clients and minority voters in North Carolina and marks 

only the third time the Court has granted a stay of an adverse district court judgment in a case 

brought under the Shaw doctrine.’ 

After the Chief Justice extended the time within which to docket the appeal, we filed our 

Jurisdictional Statement on May 19, 2000. The Court noted probable jurisdiction on June 26, 

2000 and the appeals filed by the State and the Smallwood Appellants were consolidated. See 

Hunt v. Cromartie, No. 99-1864 (U.S. June 26, 2000) (order noting probable jurisdiction); 

Smallwood v. Cromartie, No. 99-1865 (order noting probable jurisdiction). We filed our brief on 
the merits on September 8, 2000 and our reply brief on November 8, 2000. 

CONCLUSION 

Hunt v. Cromartie will perhaps be the first Supreme Court redistricting decision 

following the 2000 Census and will help shape the legal landscape of the next redistricting cycle. 

It will be particularly important to preserve the constitutionality of the Twelfth District on appeal 

so that it can serve as the benchmark for the creation of the new congressional district lines during 
the post-2000 Census redistricting. 

We have already successfully defended the majority-African American First Congressional 

District in this case. While the district court found that race predominated in the creation of the 

First District, it found that the decision to create the district was narrowly tailored to meet a 

compelling justification under the Voting Rights Act. This is only the second time that a district 

court has specifically found, in a Shaw challenge, that a electoral district is narrowly tailored to 

meet a compelling state interest in complying with Section 2 of the Voting Rights Act, 42 U.S.C. 

§ 1973.* This victory is now secure, as the plaintiffs have not appealed this ruling. Please contact 

  

The other two cases were Hays v. Louisiana, the challenge to the Louisiana 
congressional redistricting plan, and Johnson v. Miller, the challenge to the Georgia congressional 

redistricting plan. LDF represented defendant-intervenor parties in both cases. 

“The first time was in King v. State Bd. of Elections, 979 F. Supp. 619, 621-27 (N.D. Ill. 

1997), summ. aff., 522 U.S. 1087 (1998) (per curiam) where the district court found that the 

Fourth Congressional District was narrowly tailored to meet the State of Illinois’ state interest in 

complying with Section 2. See also DeWitt v. Wilson, 856 F. Supp. 1409, 1413-15 (E.D. Cal. 

1994), aff'd, 515 U.S. 1170 (1995) (district court found that the California redistricting plan was 

not an unconstitutional racial gerrymander, but that even if strict scrutiny were required “we 

conclude that this California redistricting plan has been narrowly tailored to meet a compelling 

state interest.”). 

 



  

me with any questions. 

CC. Ted Shaw 

Norman Chachkin 

Jacqueline Berrien 

Herschel Johnson 

Erica Teasley 

Costa Varsos 

D.C. Staff 

Bd 

 



® w 
Hunt v. Cromartie Press Briefing Talking Points 

Development of the 1997 Plan 

Race was not the predominant factor in the creation of Congressional District 12 of the 

1997 Reapportionment Plan and that the General Assembly did not subordinate traditional 

redistricting criteria to racial considerations in creating Congressional District 12 of the 

1997 Plan. 

Rather, the North Carolina General Assembly had two primary redistricting goals in 1997: 

First-Remedy constitutional defects found by the Supreme Court in the 1992 Plan, 

including the predominance of racial considerations underlying the shape and location of 

District 12, by 1) avoiding any division of precincts and of counties to the extent possible; 

2) avoiding use of narrow corridors to connect concentrations of minority voters; 3) 

striving for geographical compactness without use of artificial devices such as double 

cross-overs or point contiguity; 4) pursuing functional compactness by grouping together 

citizens with similar interests and needs; and 5) seeking to create districts that provide 

easy communication among voters and their representatives. 

Second-Preserve the even (six Republican and six Democratic members) partisan balance 
in North Carolina’s then-existing congressional delegation. 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. 

The General Assembly succeeded in reaching its stated redistricting goals: 

While the 1992 Plan divided 80 precincts and 44 counties, the 1997 Plan only 

divides two precincts and 22 counties. 

District 12 in the 1997 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. 

-Does not have any areas of only “point contiguity” and does not contain any 

“cross-overs” or “double-cross-overs” as it did in the 1992 Plan. 

-In the 1992 plan, District 12’s boundaries divided 48 precincts, while District 12 
in the 1997 Plan divides only one. 

The boundaries of the new District 12 were determined by partisan considerations 

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

region.  



  

# > 

. District 12°s African-American total population was reduced from the original 

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

reduced from the original 53.34 percent in the 1992 plan to 43.36 percent. 

. District 12 encompasses a distinct community of interest. District 12 is a largely 

urban district and the residents share common economic interests in areas, 

including manufacturing, research, banking and higher education. The residents 

are largely employed in blue collar, suburban, and urban employment, rather than 
in agricultural businesses. The interests of the residents of District 12 are those of 

a largely urban populous, including mass transportation, urban crime problems, 

unemployment, and housing and economic development concerns. 

District 12 was drawn specifically to create a Democratic performing district with no 
intent to have a particular African-American percentage. 

The configuration of District 12 reflects a strong correlation between the racial 

composition of the precincts and party preference of African-Americans in the district. 

The Applicable Legal Standard 

Appellees’ heavy evidentiary burden in this case is to “prove that District 12 was drawn with 

an impermissible racial motive — in this context, strict scrutiny applies if race was the 

‘predominant factor’ motivating the legislature’s districting decision.” Hunt v. Cromartie, 

526 U.S. 541, 547 (1999). 

Appellees must show that “race for its own sake, and not other districting principles, was the 

legislature’s dominant and controlling rationale in drawing its district lines,” Bush v. Vera, 

517 U.S. 952 (1996) (quoting Miller, 515 U.S. 900, 913 (1995)), and “that other, legitimate 

districting principles were ‘subordinated’ to race.” Bush, 517 U.S. at 958. 

It is not sufficient to show that the State of North Carolina conducted the redistricting process 

with some “consciousness of race.” See Bush, 517 U.S. at 1051. 

The Supreme Court has acknowledged the reality that a state “‘always is aware of race when 

it draws district lines, just as it is aware of age, economic status, religious and political 

persuasion, and a variety of other demographic factors” but held that “[this] sort of race 

consciousness does not lead inevitably to impermissible race discrimination’ United States 

v. Hays, 515 U.S. 737, 745 (1995) (citation omitted) (emphasis in original). See also Bush, 

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

 



  

@ a 

While the configuration of District 12 reflects a strong correlation between the racial 

composition of the precincts and party preference and the General Assembly’s goal of 

creating a partisan Democratic District 12, this fact does not make the 1997 constitutionally 

suspect. 

The General Assembly may create a plurality strong partisan Democratic district “even if it 

so happens that the most loyal Democrats happen to be black Democrats and even if the State 

were conscious of that fact.” Cromartie, 526 U.S. at 542 (emphasis in the original). 

“Evidence that blacks constitute even a supermajority in one congressional district while 

amounting to less than a plurality in a neighboring district will not, by itself, suffice to prove 
that a jurisdiction was motivated by race in drawing its district lines when the evidence also 

shows a high correlation between race and party preference.” Cromartie, 526 U.S. at 542. 

 



  

* # 
Sample Record Misrepresentations by Appellees 

I. African Americans Can Control the District 12 Dem. Primary 

The Assertion: Appellees assert for the first time in this case: “The Twelfth District is 
gerrymandered so that African-Americans make up about 60% of the persons eligible to vote in a 

Democratic primary.” Br. at 26. 

Appellees argue without record support that District 12 was gerrymandered to have a 
Black “super-majority” in Democratic primary elections sufficient to overcome “single- 

shot” voting in favor of white candidates. 

Appellees’ calculations in their brief are based on estimated registration rates by race in 
“urban areas” of North Carolina and were never presented to the trial court. Br. at 27 
n.24. 

The Record: Dr. Weber did not claim that District 12 was gerrymandered to affect primary 
election results, but that District 12 was an “overly safe” district in general elections. 

II. More African Americans than Whites Participate in the Disrict 12 Dem. Primary 

The Assertion: Appellees assert that more African American than white Democrats would 
participate in primary elections in the Twelfth District and could therefore determine the nominee. 

The Record: This is based upon Weber’s methodologically flawed analysis: 

In North Carolina, only Democrats and unaffiliated voters may participate in the 

Democratic primary; Republicans are ineligible to participate. Trial Transcript, November 
30, 1999 at 312-313. 

Weber was unable to separate registered voters by party, since Weber’s registration data 
did not include information about the voters’ party affiliation. Trial Transcript, November 

30, 1999 at 313-314. 

Therefore, Weber’s participation percentages for white voters in Democratic primary 
elections were based upon all white registered voters, including those who might be 
Republican and, therefore, ineligible to vote in the Democratic primary. Trial Transcript, 

November 30, 1999 at 313-314. 

As a result, Weber’s analysis artificially deflates the participation of white voters in the 

Democratic primary, since some proportion of those voters would not be eligible to 
participate in the Democratic primary in any event. Trial Transcript, November 30, 1999 

at 314. 

 



  

# # 
III. Watt Only Targetted African Americans in His Campaigns 

The Assertion: Rep. Watt’s campaign “defined [potential voters for Watt] on the basis of race” 

and “targeted [these] African-American voters through direct mail, African-American newspapers, 

and radio stations chosen because of their predominantly African-American audience.” Br. at 46, 
citing Jt. App. at 578-83. 

The Record: Rep. Watt’s campaign identified and sought the support of diverse groups of 

voters. Rep. Watt’s District Director, Don Baker, testified: 

“We have worked for many affiliated organizations. We have worked for women, 

senior citizens, African Americans, the Hispanic community. In the campaigns that 
I have been involved with that is kind of the target groups that we were working 
towards, keeping them involved.” Jt. App. 581. 

“We did polling to see exactly what the issues were that was on people’s minds. 
We in turn developed mail towards target groups. Seniors was one of the target 

groups that we sent direct mail to. Women was a targeted direct mail. African 

Americans was a targeted direct mail. And we sent smaller mailers to other 

individual groups, organizations.” Jt. App. 582. 

 



  

# * 
Sample Text Where District Court Equates 

Race Consciousness with Race Predominance 

The State’s desire to maintain partisan and racial balance equated with racial 

predominance: 

“The conslusion that race predominated was further bolstered by Senator Cooper’s 
allusion to a need for ‘racial and partisan balance,’ cited above. The senator’s contention 
that although he used the term ‘partisan balance’ to refer to the maintenance of a six-six 
Democrat-Republican split in the congressional delegation, he did not mean the term 

‘racial balance’ to refer to the maintenance of a ten-two balance between whites and 
African-Americans is simply not credible.” Jt. App. at 27a. 

Cohen E-mail text itself shows racial predominance: 

“The Cooper-Cohen e-mail refers specifically to the categorization of sections of 
Greensboro as ‘Black,’ and ascheme by which this section was added to the 12th District, 
creating a need to ‘take about 60,000' other citizens out.” Jt. App. at 27a-28a. 

The fact that computer technology permitted the State to know the race of voters 
demonstrates racial predominance: 

“The computer system used by the state has the capacity to identify and apportion voters 

based on race, and to determine the exact racial make-up of each district. The Cohen- 
Cooper e-mail reveals that exact racial percentages were used when constructing 
districts.” Jt. App. at 28a (footnote omitted). 

District court forbids the State to be race-conscious in developing remedy: 

The district court ordered the State to “redistrict the 1997 Plan in such a way that it 
avoids the deprivation of the voters’ equal protection rights not to be classified on the 
basis of race,” leaving the State “free to use other, proper factors in redistricting the 1997 

Plan.” Jt. App. at 29a. (emphasis added). 

 



  

# # 
Sample Record Misrepresentations by Appellees 

I. African Americans Can Control the District 12 Dem. Primary 

The Assertion: Appellees assert for the first time in this case: “The Twelfth District is 
gerrymandered so that African-Americans make up about 60% of the persons eligible to vote in a 

Democratic primary.” Br. at 26. 

Appellees argue without record support that District 12 was gerrymandered to have a 

Black “super-majority” in Democratic primary elections sufficient to overcome “single- 

shot” voting in favor of white candidates. 

Appellees’ calculations in their brief are based on estimated registration rates by race in 
“urban areas” of North Carolina and were never presented to the trial court. Br. at 27 
n.24. 

The Record: Dr. Weber did not claim that District 12 was gerrymandered to affect primary 
election results, but that District 12 was an “overly safe” district in general elections. 

II. More African Americans than Whites Participate in the Disrict 12 Dem. Primary 

The Assertion: Appellees assert that more African American than white Democrats would 
participate in primary elections in the Twelfth District and could therefore determine the nominee. 

The Record: This is based upon Weber’s methodologically flawed analysis: 

In North Carolina, only Democrats and unaffiliated voters may participate in the 

Democratic primary; Republicans are ineligible to participate. Trial Transcript, November 
30, 1999 at 312-313. 

Weber was unable to separate registered voters by party, since Weber’s registration data 
did not include information about the voters’ party affiliation. Trial Transcript, November 
30, 1999 at 313-314. 

Therefore, Weber’s participation percentages for white voters in Democratic primary 
elections were based upon all white registered voters, including those who might be 
Republican and, therefore, ineligible to vote in the Democratic primary. Trial Transcript, 

November 30, 1999 at 313-314. 

As a result, Weber’s analysis artificially deflates the participation of white voters in the 

Democratic primary, since some proportion of those voters would not be eligible to 

participate in the Democratic primary in any event. Trial Transcript, November 30, 1999 

at 314. 

 



  

# # 
III. Watt Only Targetted African Americans in His Campaigns 

The Assertion: Rep. Watt’s campaign “defined [potential voters for Watt] on the basis of race” 
and “targeted [these] African-American voters through direct mail, African-American newspapers 

and radio stations chosen because of their predominantly African-American audience.” Br. at 46, 
citing Jt. App. at 578-83. 

pJ 

The Record: Rep. Watt’s campaign identified and sought the support of diverse groups of 
voters. Rep. Watt’s District Director, Don Baker, testified: 

“We have worked for many affiliated organizations. We have worked for women, 
senior citizens, African Americans, the Hispanic community. In the campaigns that 
I have been involved with that is kind of the target groups that we were working 
towards, keeping them involved.” Jt. App. 581. 

“We did polling to see exactly what the issues were that was on people’s minds. 
We in turn developed mail towards target groups. Seniors was one of the target 

groups that we sent direct mail to. Women was a targeted direct mail. African 

Americans was a targeted direct mail. And we sent smaller mailers to other 

individual groups, organizations.” Jt. App. 582. 

 



A » 
Sample Text Where District Court Equates 

Race Consciousness with Race Predominance 

The State’s desire to maintain partisan and racial balance equated with racial 

predominance: 

“The conslusion that race predominated was further bolstered by Senator Cooper’s 
allusion to a need for ‘racial and partisan balance,’ cited above. The senator’s contention 

that although he used the term ‘partisan balance’ to refer to the maintenance of a six-six 

Democrat-Republican split in the congressional delegation, he did not mean the term 

‘racial balance’ to refer to the maintenance of a ten-two balance between whites and 

African-Americans is simply not credible.” Jt. App. at 27a. 

Cohen E-mail text itself shows racial predominance: 

“The Cooper-Cohen e-mail refers specifically to the categorization of sections of 

Greensboro as ‘Black,’ and ascheme by which this section was added to the 12th District, 

creating a need to ‘take about 60,000' other citizens out.” Jt. App. at 27a-28a. 

The fact that computer technology permitted the State to know the race of voters 
demonstrates racial predominance: 

“The computer system used by the state has the capacity to identify and apportion voters 

based on race, and to determine the exact racial make-up of each district. The Cohen- 

Cooper e-mail reveals that exact racial percentages were used when constructing 

districts.” Jt. App. at 28a (footnote omitted). 

District court forbids the State to be race-conscious in developing remedy: . 

The district court ordered the State to “redistrict the 1997 Plan in such a way that it 
avoids the deprivation of the voters’ equal protection rights not to be classified on the 
basis of race,” leaving the State “free to use other, proper factors in redistricting the 1997 

Plan.” Jt. App. at 29a. (emphasis added).