State Appellants' Brief on the Merits

    Q 

ST 

Septem 

 



Nos. 99-1864 and 99-1865 

    

Supreme Court of the United States 
  

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

and 

ALFRED SMALLWOOD, et al., 

Intervenor-appellants, 

Vv. 

MARTIN CROMARTEE, ef al., 

Appellees. 
  

On Appeal from the United States District Court 

Eastern District of North Carolina 
  

STATE APPELLANTS’ BRIEF ON THE MERITS 
  

MICHAEL F. EASLEY 

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

Norma S. Harrell, Special Deputy Attorney General 
North Carolina Department of Justice 

Post Office Box 629 
Raleigh, North Carolina 27602-0629 

(919) 716-6900 

Walter E. Dellinger 

Brian D. Boyle 

Crystal Nix Hines 

Jonathan D. Hacker 

O’Melveny & Myers LLP 
555 13th Street, N.W. 

Washington, D.C. 20004 

(202) 383-5300 

September 8, 2000 *(Tnuncol nf RornvAd  



  

 
 

  

 
 



  

QUESTIONS PRESENTED 

(1) Whether a federal court may strike down a state’s 

redistricting plan by substituting its judgment for that of the 

state legislature, and without requiring the challengers to 

surmount their heavy burden of demonstrating that race, not 

politics, was the dominant and controlling rationale in drawing 

district lines and that traditional redistricting criteria wer 
subordinated. 

(2) Whether a final judgment from a court of competent 

jurisdiction, which holds that a state’s congressional 

redistricting plan does not violate the constitutional rights of 

plaintiffs and authorizes the state to proceed with elections 
under it, preclude a later constitutional challenge to the same 

plan in a separate action brought by plaintiffs in privity with 
them. 

 



  

i 

LIST OF PARTIES 

JAMES B. HUNT, JR., in his official capacity as Governor of 

the State of North Carolina, DENNIS WICKER in his official 

capacity as Lieutenant Governor of the State of North Carolina, 

HAROLD BRUBAKER in his official capacity as Speaker of 

the North Carolina House of Representatives, ELAINE 
MARSHALL in her official Capacity as Secretary of the State 
of North Carolina, THE NORTH CAROLINA STATE 
BOARD OF ELECTIONS, and LARRY LEAKE, S. 
KATHERINE BURNETTE, FAIGER BLACKWELL, 
DOROTHY PRESSER, and JUNE YOUNGBLOOD in their 
capacity as the North Carolina State Board of Elections, are 

appellants in this case and were defendants below; 

ALFRED SMALLWOOD, DAVID MOORE, WILLIAM M. 

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

BARNEY OFFERMAN, VIRGINIA NEWELL, CHARLES 
LAMBETH, and GEORGE SIMKINS, are intervenor- 

appellants in this case and were intervenor-defendants below; 

MARTIN CROMARTIE, THOMAS CHANDLER MUSE, 
R.O. EVERETT, J.H. FROELICH, JAMES RONALD 
LINVILLE, SUSAN HARDAWAY, LOIS WEAVER, and 
JOEL K. BOURNE are appellees in this case and were 

plaintiffs below. 

    

 



  

iii 

TABLE OF CONTENTS 

Page 

QUESTIONS PRESENTED... io cai i 

LISTOF PARTIES... it i ii v0 11 

OPINVONS BELOW i ie on ® 

JURISDICTION co. coividinhiesisionton cnt ivamiestonst oss votre 1 

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

STATEMENT OF THE CASE... aii i 1 

A. The 1997 Congressional Redistricting Process.......... 1 

B. Legal PIoCCRAUIGS coches. rie scart on 6 

C. The District Court Option... vith ii iii 7 

SUMMARY OF ARGUMENT... hi 8 

I. CAREFUL SCRUTINY OF THE DECISION 
BELOW IS REQUIRED TO DETERMINE 
WHETHER PLAINTIFFS HAVE MET THEIR 
STRINGENT EVIDENTIARY BURDEN FOR » 
PROVING A PREDOMINANT RACIAL 
MOTIVE... nites de ers Boni bs arin 13 

A. Plaintiffs Must Proffer Compelling Evidence 
That Race Was The Dominant Factor In The 
DISCS DESIEM, civil iniii i iiisbernnins ai. 13 

B. A Rigorous Review Of The Record And 
Decision Below Is Required. ......coeeueevenrvveevrrneen... 16 

C. A Comparison Of The Evidence In This Case 
With That In Previous Cases Is Warranted. ............. 18  



  

1v 

TABLE OF CONTENTS 

(continued) 

II. THE COURT IMPROPERLY CONCLUDED 
THAT RACE, NOT INCUMBENCY 

PROTECTON, WAS THE PREDOMINANT 

FACTOR IN THE DESIGN OF DISTRICT 12. ..... 

A. The Court Erroneously Discredited The State’s 

Motives Based On Registration Data Rejected 
By The Logislalure. .......ir ceccsnerssnsissntssssiossnsrsnns 

B. The Court Unreasonably Inferred A 
Predominant Racial Motive From Expert 

Testimony That Did Not Refute The State’s 

Showing That Partisanship Predominated The 
DISIUICH S DICSION. ov. onsissssserssssnarsssssisssnsrssbrsstossins 

C. The District’s Shape Was Not Probative 
Circumstantial Evidence Of Motive Because 

The Shape Was Justifiable On Both Racial And 

Political Grounds 

D. The Panel’s Reliance On Isolated Statements 

By Legislators That Establish, At Most, That 

Race Was Considered Does Not Establish That 
Race Predominated 

. RECOGNIZED CLAIM PRECLUSION RULES 

BARRED PLAINTIFFS FROM CHALLENGING 
DISTRICT 12 

A. The District Court in Shaw Entered a Final 

Judgment Holding the Revised District 12 

Con AON a ee tr re rent 

B. The Doctrine of Claim Preclusion Barred 

Plaintiffs’ Successive Challenge to District 12.. 

EE EE EE YN] 

CR ER YY) 

Page 

rotas 21 

cians 23 

enviar 25 

horns 41 

eiriss 43 

    

  

  

 



Vv 

TABLE OF CONTENTS 
(continued) 

CONCLUSION bib dhl Solo ebb Lfs LEE REST 0 RTI eR Ta 

 



  

vi 

TABLE OF AUTHORITIES 

Page(s) 

CASES 

Albemarle Paper Co. v. Moody, 

4211.8. 408 (1975) .0s tiem inmivsrmsivhsiiansinsnersmssnssomiasecsnses 24 

Allen v. McCurry, 

449018. 80 Q1980).........cooccririisisits asst srsnsstinnnatosianins 43 

Anderson v. City of Bessemer, 
470L.8. 5364 (1983)....c00scriressurscrinsssiaisbssnsssendssunssioionss 18 

Bush v. Vera, 

517 10.8. 95241000). fortioverrssersisstosisssiiinssnninsonmsnssns passim 

Chapman v. Meier, 

4201.8. LA1075). ri. coiereeirristonnreissbiissrvssinsmssnss iobiohoimsnns 31 

City of Mobile v. Bolden, 

440 11.8. 55019800)......... co.cc sibeessaesnesinisnsanminsaosiusrennnonses 14 

Commissioner of Internal Revenue v. Sunnen, 
333. 11.8. 591, 597 (1048) ,...ci iris teins resosn itis smiiansrinaivahons 43 

Federated Department Stores v. Moitie, 

452 11.8: 394 (1081)... cccreiivcrinsiuerrmssssanssnsssaissanions 43,44 

Growe v. Emison, 

507.1).8. 25 (1903) cri. cnsisinertirnnairisisesnamniisnsisnstetasetosive 31 

Henry v. CLR, 

170 F.3d 1217 (Oh Cir, 1999)... cnmsiriscrnmseisncsivesainn 40 

Hunt v. Cromartie, 

5201.8. 541 (1999)........0.00tbinensunstssnsivasssunssoniierosn passim 

Jaffree v. Wallace, 

B37.F.2d 1461 (11th Cir. 1988)........coosvrmrinvasesancons 45, 46 

   



vii 

TABLE OF AUTHORITIES 
(continued) 

Page(s) 

Jefferson v. Hackney, 
4068. 33530970)... diene da Er 16 

Johnson v. Miller, 
$ 

864 F. Supp. 1354 (S.D. Ga. 1994), aff'd, 515 
US. B1097) 4... a SE 20 

Johnson v. Miller, : 
922 F. Supp. 1556 (S.D. Ga. 1995), aff'd sub 
nom., Abrams v. Johnson, 521 U.S. 74 (1997) cin, 36 

Kilgarlin v. Hill, 
386 US. 1200196) iinet sii 49 

Lawyer v. Department of Justice, 
SN US. 307199 iii 33,37.39 

Llampallas v. Mini-Circuits, Inc., 
163 F.3d 1236 (11th Cir. JOORY... titres iain a 40 

Los Angeles Branch NAACP v. Los Angeles Unified 
School District, 

730 P.2d 13X(Oth Cir. 1984)... ~ ar 45, 46, 49 
Louisiana Seafood Management v. F. oster, 

53 F. Supp. 2d 872 (E.D. La. 1999). iri nin 48 
Lucas v. Forty-Fourth General Assembly, 

TT US: T1394)... oii is 0 49 

Lynch v. Donnelly, 
4051.8. 608 (Y984)iicuuneniihi  RER 37, 40 

Miller v. Johnson, 

SIS U.S: 900(1995)......coinio sisal oti passim 

Mueller v. Allen, 

403 U).8: IRB 01983)... hein hes sR A 21  



  

viii 

TABLE OF AUTHORITIES 

(continued) 

Page(s) 

NAACP v. Hunt, 

891 F.2d 1555 (11th Cir. 1990)..4....cciiviimnnsciiennnssnsnssssis 45 

NAACP, Minneapolis Branch v. Metropolitan Council, 

125 F.3d 1171 (8th Cir. 1997), cert. denied, 525 

LS. B26 (A TO8BY....oci ite ecinssissniossvisnssshonsnsnsonbssotn 45, 46 

Personnel Administrator v. Feeney, 

A42 10.8. 250 (1979). 550i us ecsuntoicishensaiessamibinssmsessns inn 14, 24 

Petit v. City of Chicago, 

766 F. Supp. 607 (N.D. Ill. 1991) ................ 45, 46, 47, 48 

Purkett v. Elem, 

5181).S..705 (1995) cvascicrinrsisstisnssvanssnassnnsiseiunarenscsnaresn 14 

Reynolds v. Sims, 

B77. 533 (1904) ..c00 0000000 :0t 0m ruennssosssenssosnsonsiissnnminanss 49 

Richards v. Jefferson County, 

S171U.8.793 (1996).......ocscniconsivamenserssnunsains 44, 45,47, 48 

Roman v. Sincock, 

377118. 093 (19048)... 000 0insiinsinsirnindineisnnsatoitansinsnnnosmid 49 

Shaw v. Hunt, 

517 US. 899(1996)......coomsiessnscmmandvivensiusisessaisonse passim 

Shaw v. Hunt, 

92-202-CIV-5-BR, Judgment (E.D.N.C. 

September 15, 1997) 

Shaw v. Hunt, 

CA No. 92-202-CIV-5-BR, Order (E.D.N.C. June 

D0 OT) or sinnecrrecitosssniennstossntnrspniannsesastsvuronspiussebonsons sinanse 42 

Shaw v. Reno, 

S509 11.8. 630 (1993)....500 ceeneacerectitormsnrmissressvsssresds passim 

   



1X 

TABLE OF AUTHORITIES 

(continued) 

Silver v. Diaz, 
532 U.8.801 (1997)... ci nn fiat ma as 

South Central Bell Telephone Co. v. Alabama 
52011.8. 160 (1999) .......cciih Lo ip 

St. Mary's Honor Center v. Hicks, 
509 U.S. 502 (1993) 

Thornburg v. Gingles, 

478 U.S. 30 (1986) 

Tyus v. Schoemehl, 

93 F.3d 449 (8th Cir. 1996) 

United States v. Hays, 

515 U.S. 737 (1995) 

Uno v. City of Holyoke, 

72 F.3d 973 (1st Cir. 1995) 

Upham v. Seamon, 

456 U.S. 37 (1982) 

Vera v. Richards, 

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

Voinovich v. Quilter, 

507 U.S. 146 (1993) 

Washington v. Davis, 
2011.8, 230L1076) coo diinmissinnnrit serie 

WMCA, Inc. v. Lomenzo, 

377 U.S. 633 (1964) 

Wright v. Rockefeller, 

376 U.S. 52 (1964) 

hb 

PAu 

Serre teteriererer asst rortosnasetsR ass ReOERERSESERRRS 

®essesvscnssnsnnesrsscssans 

EA EE EE i IAA 

EERE Pr ppp ea 

SO Per ere rer er ree REN Ir Enea sceesesssnnsssnsssnnse 

Sess scssvevecencsasccscasssnee 

AA, 

CEE er Eres er rr er rans Necsrerssssnacsoecssssnssnssnananses 

A a dd I pupa A  



  

X 

TABLE OF AUTHORITIES 

(continued) 

Page(s) 

OTHER AUTHORITIES 

18 Charles Alan Wright & Arthur R. Miller, Federal 

Practice & Procedure (2d ed. 1987).................. 43,44, 46 

   



1 

STATE APPELLANTS’ BRIEF ON THE MERITS 

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

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

States District Court for the Eastern District of North Carolina, 

dated March 7, 2000, which held that District 12 in the State’s 
1997 Congressional Plan is an unconstitutional gerrymander 

and enjoined the State from conducting any elections under 

plan. 

OPINIONS BELOW 

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

and the concurring and dissenting opinion of the Honorable 

Lacy Thornburg, District Court Judge sitting by designation as 
Circuit Judge, which have not yet been reported, appear at J.S. 
1a and 37a, respectively.’ 

JURISDICTION 

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

2000. J.S. 71a. On March 10, 2000, the State appellants filed 

notice of appeal to this Court. J.S. 69a. The jurisdiction of this 

Court is invoked under 28 U.S.C. § 1253. w 

CONSTITUTIONAL PROVISION INVOLVED 

This appeal involves the Equal Protection Clause of the 
Fourteenth Amendment. J.S. 73a. 

STATEMENT OF THE CASE 

A. The 1997 Congressional Redistricting Process 

Last term, a unanimous Court in Hunt v. Cromartie, 526 

U.S. 541 (1999), held that the district court improperly granted 
summary judgment to plaintiffs in concluding that race was the 

“predominant factor” in the drawing of Congressional District 

12, and remanded the case for trial. In so holding, the Court 

  

! References to “J.S.” are to the Appendix of the Jurisdictional 
Statement; references to “J.A.” are to the Joint Appendix.  



  

stated that: 

[e]vidence that blacks constitute even a super-majority 

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 551-52. 

The trial confirmed in substantial detail the legislature’s 

constitutional engagement in political gerrymandering in 
making District 12 a strong Democratic district as part of its 

broader effort to preserve a six-six partisan balance in its 

congressional delegation. The General Assembly commenced 
the complex and difficult task of remedying the constitutional 
defects in the prior 1992 Plan,’ while at the same time 

achieving its partisan political objectives. The General 

Assembly’s redistricting efforts were complicated by the fact 
that political power was divided between a majority 
Democratic Senate and a majority Republican House. Indeed, 

when the redistricting process began, many did not believe that 

the politically divided legislature could successfully negotiate a 

plan and prevent redistricting from falling to the federal court 
by default.’ 

An essential aspect of designing a plan acceptable to the 
politically divided General Assembly was the protection of all 

twelve incumbents. This was done in part by preserving the 

constituent and partisan core of each district. Congresspersons 
and their representatives, as well as their supporters in the 

  

2 In Shaw v. Hunt (Shaw II), 517 U.S. 899 (1996), this Court found that 
race predominated in the design of District 12 and that it could not survive 
strict scrutiny. 

*1.S. 82a, 138a; J.A. 179-80, 240-41. 

    

 



  

  

3 

General Assembly, expressed their preferences throughout the 
redistricting process.” The legislature’s task was particularly 
acute in the western part of the State because it is 
overwhelmingly Republican; the legislature was thus faced 
with the difficult challenge of creating loyal Democratic 
constituencies in Districts 8 and 12, while protecting the 
Republican strongholds in adjacent Districts 5, 6, 9 and 
Any changes in the configuration of any of those districts co 
not undermine the strength of the existing incumbents or the 
passage of the plan would have been placed in jeopardy.’ 

To achieve its goals, the General Assembly established 
Senate and House redistricting committees to oversee the 
redistricting process. Senator Roy A. Cooper, III, a Democrat, 
was appointed Chairman of the Senate Redistricting Committee 
and Representative Edwin McMahan, a Republican, was 
appointed Chairman of the House Redistricting Committee. 
From the beginning, Cooper and McMahan recognized that the 
only way to reach a compromise was to craft a plan that, while 
curing the constitutional defects, also preserved the existing 
six-six partisan balance in the State’s congressional 
delegation.’ Because party registration is not a relizoggy 
predictor of voting behavior in North Carolina, the committe 
used the actual votes cast in a series of previous statewide 
elections to design Democratic and Republican districts.’ 

  

* See, e.g., 1.S. 83a-84a, 138a, 207a-10a; J.A. 180-86, 657. 

>See, e.g., J.S. 83a-86a; J.A. 182, 185-88, 191, 623-24, 634-35, 637-38. 

$ See, e.g., J.S. 82a, 94a, 99a-100a, 138a; J.A. 180, 187-88, 235, 240- 
41, Ve 780. 

7 1.S. 206a-07a; J.A. 397, 779-80. See also J.S. 173a-74a. The 
redistricting computer database included voting results at the precinct level 
for three state races: the 1988 Lewis/Smith Court of Appeals election, the 
1988 Rand/Gardner Lieutenant Governor election, and the 1990 
Gantt/Helms United States Senate election. In addition, some more recent 
election results also were available to the committee chairman through other 
cnnrrae TQ 02. 04. 190. tan - - ~~  



  

4 

Computer software allowed the plan’s drafters to view voting 

data by precinct, enabling them to move precincts and draw 

district boundaries throughout the State based on actual voting 

patterns.® 

Acutely conscious of its legal obligations, the General 

Assembly sought to cure the defects in the 1992 plan by 

assuring that racial considerations did not predominate over 

traditional race-neutral redistricting criteria in the drawing of 
districts. The new plan was thus designed to: (1) avoid 

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

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

overs,” point contiguity, long narrow corridors and other 

artificial means of maintaining contiguity; (4) group together 

citizens with similar needs and interests; and (5) ensure ease of 

communication between voters and their representatives. 

Although improving the overall appearance of District 12 and 
other districts was a major consideration in curing the defects 

found in the previous plan, mathematical measures of 
compactness were not utilized in constructing or evaluating the 
new plan.’ 

Other important legal requirements also influenced the 

design of the 1997 Plan. First and foremost were federal one 

person, one vote requirements, which meant that politically 

desirable precincts along the border of a proposed district 

sometimes could not be included in a district and still maintain 

  

1988 elections were given the most weight by the legislature because they 

were a better test of generic party voting preferences. The judges’ race, for 

example, involved candidates who were known to most voters only by their 
party affiliation. J.S. 206a-07a; J.A. 189. See also J.A. 611, 613, 652. 

§ See, e.g., J.A. 518-20, 585-87. 

? See, e.g., 1.S. 82a-84a, 138a; J.A. 179, 190-91, 200-01, 212-13, 382- 

83, 393-96, 405-06, 431, 464-65, 474, 476. 

   



3 

an acceptable population balance.'® In addition, with respect to 

District 1, the legislature sought to comply with the 
requirements of the Voting Rights Act — an obligation that did 
not pertain to District 12 or the other districts." 

On March 31, 1997, a majority of representatives in both 

houses voted to enact the new congressional districting plan. '? 
The most dramatic changes in the new plan are in District 

which contains less than 70% of its original population and less 

than one-half (41.6%) of its original geographic area.'’ 

Although the House and Senate initially differed on the 

question of extending District 12 from the city of Charlotte in 

Mecklenburg County northward either to Winston-Salem (the 
Senate plan) or to High Point and Greensboro (the House plan), 
the legislature decided there was no logical reason not to 
include loyal Democratic voters from all three parts of District 
12’s Triad," rather than effectively wasting their votes by 
putting them into districts that were overwhelmingly 
Republican.” 

   

  

  

'% See, e.g., I.A. 613-14, 622, 625. Balancing populations someti 

served other purposes. For example, several precincts in Mecklen 
County were shaved off District 12 to increase the population of District 9 
so it did not extend into Lincoln County, and that county could be made 
whole as part of District 10. J.A. 789-90. 

"11.8. 85a-86a; J.A. 196, 384. See also J.A. 207-09, 385, 621. 

> Although the 1997 Plan garnered bipartisan support in the divided 
chambers of the General Assembly, twelve of seventeen A frican-Americans 
in the House voted against the plan because they believed it did not 
adequately take into account the interests of the State’s African-American 
citizens. J.S. 140a; J.A. 242-43. 

BJA. 16, 543-44. 

'* The Triad consists of Winston-Salem in Forsyth County, and 
Greensboro and High Point in Guilford County. 

" JA. 192-94, 216, 268, 389. The extension of District 12 to 
Greensboro boosted the percentage of Democratic voters, based on the two 
10RK elertiane Ter Firvra navnamt Tha co cee ns ~™ ..  



  

6 

To the extent possible, consistent with the difficult task of 

creating a Democratic district in the predominantly Republican 
Piedmont Crescent, the 1997 Plan respects the traditional race- 
neutral redistricting criteria identified by the legislature: 

District 12 divides only one precinct, for partisan reasons; its 
appearance is greatly improved over the 1992 plan by being 
shorter, wider and no longer held together by reliance on 

artificial devices such as cross-overs and point contiguity. See 

supra note 9. It comprises a district joining together citizens 
with similar needs and interests in the urban and industrialized 
areas along the interstate highways that connect Charlotte and 

the Piedmont Urban Triad,'® areas in which the bulk of the 

State’s recent population growth has occurred.” Moreover, 

because District 12 is built around major transportation 
corridors, it functions effectively for representatives and 
constituents. With 43% of its voting-age population African- 

American, District 12 is not a majority-minority district.'® 

District 12 is, however, a majority Democratic district. 

B. Legal Proceedings 

After the General Assembly enacted the 1997 Plan, and the 

1998 election process had begun, plaintiffs filed suit, 
challenging the constitutionality of Districts 1 and 12. 

Plaintiffs moved for a preliminary injunction and for summary 

judgment. The district court, with Circuit Judge Sam J. Ervin, 
III, dissenting, granted summary judgment to plaintiffs, 

declared District 12 unconstitutional, and permanently enjoined 
the State from conducting any primary or general election 

under the 1997 Plan. After the State defendants appealed, this 

  

57.48% to 62.20% in the Rand/Gardner election and from 56.59% to 

61.46% in the Lewis/Smith election. J.S. 231a, 241a. 

6 See, e.g., J.A. 383, 400-01, 421, 430, 465, 476. 

1A. 151-52, 751. 

'® Only 46.7% of its total population and 45.6% of its registered voter 

population is African-American. J.S. 77a-79a. 

   



7 

Court reversed and remanded for trial. Cromartie, 526 U.S. at 

554. On remand, the district court established a schedule for 

discovery and set a trial date. After the untimely death of 
Circuit Judge Sam J. Ervin, III, United States District Court 

Judge Lacy H. Thornburg was assigned to the three-judge 

panel. : 

C. The District Court Opinion 

The three-judge panel unanimously ruled that District 1 was 

constitutionally drawn, but a majority ruled that District 12 was 
an unconstitutional racial gerrymander and enjoined its use in 

future elections. The majority began by crediting the State’s 

testimony that the 1997 Plan was drawn to protect incumbents 

and preserve the partisan core of the existing districts. J.S. 11a. 
Nonetheless, the court rejected legislators’ testimony that 
District 12 was drawn to fulfill those same partisan goals. 
Instead, in an opinion which substantially repeated its prior 

summary judgment opinion, compare J.S. 11a-19a with J.S. 
247a-255a, the panel once again focused heavily on 
circumstantial evidence of the district’s racial demographics 

and shape, and again, used registration data to impugn the 

state’s motives, J.S. 23a-26a, even though legislators resid 

that they did not use such data in designing the district 

because it was not a reliable predictor of voting behavior in 
North Carolina. See supra note 7. The panel also found 

significant the testimony of plaintiffs’ expert, Dr. Weber, and 

several isolated statements made by one legislator and state 

official, which, it said, demonstrated a predominant racial 
motive in drawing the district. J.S. 26a-28a. 

Judge Thommburg wrote a concurring and dissenting 

opinion. He agreed that District 1 was constitutional, while 

disagreeing with the majority’s application of strict scrutiny.” 
  

*® The majority’s application of strict scrutiny to District 1 is additional 

evidence of its misunderstanding of the predominance standard. District 1, 
which has an African-American population of 50. 27%, respects traditional 
rare_noantral radintm atin nr ~clbnla. Za 32  



  

8 

He dissented as to District 12, concluding that plaintiffs had 
completely failed to meet their burden of showing that race 
predominated in drawing the district. Defendants, in contrast, 

“produced ample and convincing evidence” establishing that 

legitimate “political concerns such as existing constituents, 
incumbency, voter performance, commonality of interests, and 

contiguity, not racial motivations, dominated the process 

surrounding the creation and adoption of the 1997 redistricting 
plan.” J.S. 45a-46a. 

SUMMARY OF ARGUMENT 

The central issue in this case is whether race or partisan 

politics predominantly motivated the North Carolina 

legislature’s design of District 12. In its opinion below, the 
district court agreed with the State that the General Assembly’s 
1997 redistricting plan was motivated by a desire to maintain a 

six-six partisan balance in the State’s congressional delegation 
and to protect incumbents. J.S. 11a. The court also found that 

the design of District 12 fulfilled those objectives since the 

district is “one of the six predominantly Democratic districts 

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

division.” Id. at 11a-12a. Despite those incontestable 
findings, the court nevertheless concluded that District 12’s 

lines were drawn predominantly on racial, not political 

grounds. That conclusion is completely at odds with the 

  

artificial devices such as crossovers and point contiguity were eliminated. 

Irregularities in the district lines are the result of incumbency protection and 

other political concerns. J.S. 84a-86a; J.A. 197-200, 232-33, 465. It 

comprises a district with a community of voters defined by shared interests 
in the mostly rural and economically depressed counties in the State’s 

northern and central Coastal Plain. J.S. 84a-87a; J.A. 200,475. The district 

encompasses an area where the African-American population is sufficiently 
large and geographically compact to constitute a majority in a district, as 

the court below recognized. J.S. 33a-34a. Except for its concern that the 
split counties and towns in District 1 correlated with race, the court did not 

find that race predominated over other traditional redistricting principles in 

the design of District 1, yet needlessly applied strict scrutiny. 

   



record. 

This Court’s precedents make clear that plaintiffs bear the 

burden of proving the unconstitutionality of a state’s 
redistricting plan. To establish an equal protection violation, 

plaintiffs must show not simply that race was a possible 

explanation for the district’s lines, or even that the district’s 

boundaries correlate closely with race, but rather that 
State’s asserted predominant nonracial explanation for the 

district’s design is pretextual, and that the primary motivation 

is racial. “If district lines merely correlate with race because 

they are drawn on the basis of political affiliation, which 

correlates with race, there is no racial classification to justify.” 
Bushv. Vera, 517 U.S. 952, 958 (1996) (plurality opinion); see 
Cromartie, 526 U.S. at 552. In light of the potential correlation 

between race and political voting behavior, “[i]n some 

circumstances, incumbency protection might explain as well as, 
or better than, race a State’s decision to depart from other 

traditional districting principles, such as compactness, in the 

drawing of bizarre district lines.” Bush, 517 U.S. at 967 

(plurality opinion). Because of the sensitive nature of the 

legislative districting process — a process =D 

fundamental choices about a sovereign State’s political sel 

identity — and the difficulty of determining predominant motive 

when both political and racial factors are involved, federal 

courts are to be “extraordinarily cautious” in evaluating a claim 
that race and not incumbency protection predominately 

motivated a State legislature’s drawing of district lines. Miller 

v. Johnson, 515 U.S. 900, 916 (1995). 

The question here is whether this case is one in which the 

partisan balance achieved by incumbency protection explains 

District 12’s lines “as well as, or better than race.” Bush, 517 

U.S. at 958 (O’Connor, J., concurring). The district court 
answered that question in the negative: because “political 

explanations . . . utterly failed to explain the composition of the 

district,” J.S. 26a, race was the real, predominant motivation.  



  

10 

Id. at 25a. The court based that conclusion on three grounds, 

none of which withstands scrutiny. 

First, just as it did in its prior opinion on summary 
‘judgment reversed by this Court in Hunt v. Cromartie, the court 

relied on voter registration data purportedly showing that 
majority Democratic precincts were excluded from District 12 

to rebut the State’s assertion that the district was drawn 

predominantly to protect incumbents and preserve the partisan 

balance in the State’s congressional delegation. The court’s 
reliance on such evidence is untenable. As even plaintiffs’ 

own expert recognized, voter registration data is not a reliable 

indicator of actual voting performance in North Carolina, and 
for that reason the legislature did not use it to draw district 
lines. The court’s persistence in using a criterion the State 

disavowed, while ignoring the criterion on which it relied — 

partisan voting results — was clearly improper, and contravenes 

the analyses performed throughout the Court’s equal protection 
jurisprudence. 

Second, the court credited plaintiffs’ expert’s statistical 
analysis, which showed that predominantly African-American 

precincts were always included in District 12, while white, 

Democratic precincts were not. But such facts cannot properly 

be used to establish a predominant racial motive when the 
undisputed record also shows that the precincts that were 
included not only are Democratic but are more reliably 

Democratic than their contiguous white counterparts outside of 

the district. Since the selection of these precincts is fully 
consistent with the legislature’s partisan political goals, their 

inclusion in District 12 cannot disprove the State’s nonracial 

explanation for the district’s design. 

The court also found significant the claim of plaintiffs’ 
expert that if incumbency protection were the true predominant 
motive for District 12’s design, the State could have — and 

therefore would have — drawn a different, more compact 

district with more white precincts in the Piedmont Crescent. 

   



11 

But the few alternatives plaintiffs’ expert offered up, which 

would have entailed splitting a county three ways or disrupting 

the home bases of sitting incumbents, simply were not 

practicable. Absent any evidence that the legislature ignored 

viable alternatives, with less racial impact, the court’s inference 

that District 12’s design was motivated predominantly by race 
was completely unreasonable. 

    

Third, and finally, the court pointed to isolated statem 

from lawmakers that, it said, supported its conclusion that the 

legislature’s motivations in drawing District 12 were primarily 

racial. But whether viewed alone or together, these evidentiary 

strands showed, at most, that legislators considered race in 

redistricting. The consideration of race, however, is not 
impermissible, and certainly is not synonymous with the 

predominant use of race. The court’s conflation of these 
principles was improper. 

The frailty of the evidence of racial predominance is even 

more apparent when one compares the record in this case with 

that proffered in previous redistricting cases in which this 

Court has found unconstitutional racial gerrymandering. 

Unlike in those other cases, there was no evidence here tha 

State adopted its redistricting plan under federal pressure to 
create majority-minority districts. Nor were there any 
concessions from lawmakers that they sought to maximize 
African-American voting strength. The record also was bereft 

of any proof that the district’s shape was directly tied to efforts 

to increase minority-voting power or that districts were 

designed based solely on block-by-block racial data. In short, 
this evidentiary record nowhere approaches the level of proof 

of racial predominance found in previous redistricting cases. If 

anything, the record shows just the opposite — that lawmakers 
were motivated principally by the nonracial goals of complying 

with this Court’s precedents, protecting incumbents, and 

preserving the State’s partisan congressional balance. 

Dramatic improvements to the district’s shape also are  



  

12 

probative of the State’s efforts to cure its prior constitutional 

violation and design districts based mainly on race-neutral 
goals. The district contains less than 70% of its original 

population and less than one-half of its original geographic 

area; its length was reduced nearly in half, making it the third 
shortest district in North Carolina; it splits only one precinct, 

for partisan reasons, and uses no artificial means of maintaining 

contiguity. Indeed, to the extent possible, given the difficult 
task of creating a Democratic district in the predominantly 

Republican Piedmont Crescent, the legislature followed 

traditional redistricting criteria. The resulting district, linking 
the strongly Democratic urban areas of Charlotte, Winston- 

Salem and Greensboro, is a perfectly sensible way of bringing 
reliable Democrats in that area together. 

The facts in this case, in short, do not permit the inference 
that plaintiffs satisfied their burden of showing that the State’s 
predominant nonracial explanation for District 12’s design was 

pretextual, and that the primary motivation was racial. The 

court’s error has implications far beyond this case. If the 
decision below is permitted to stand, legislators either will be 
reluctant to give any consideration to racial factors for fear that 

such consideration will constitute racial predominance or they 

will feel compelled to make race-conscious decisions to ensure 

that districts have sufficient concentrations of white voters to 
overcome a Shaw claim. Neither option is desirable or 
consistent with equal protection law. 

There 1s another reason to set aside the decision below. 

The challenge to District 12 in this case is barred by the rules 
of claim preclusion. In the remedial phase of the earlier Shaw 
litigation, the district court explicitly ruled that the 1997 Plan 

conformed with constitutional requirements and that it was an 

adequate remedy for the constitutional defects in the prior plan. 

Following that ruling, the plaintiffs in the Shaw litigation 

immediately filed an amended complaint in this separate 
lawsuit - in front of a separate panel - alleging for the first time 

    

 



13 

in this case that District 12 violated the Constitution. While the 

two District 12 plaintiffs in this case — the only plaintiffs who 
actually have standing — were not actually plaintiffs in the 
Shaw litigation, those two also were “virtually represented” by 

the plaintiffs in the Shaw litigation under recognized claim 
preclusion rules. They are therefore bound by the Shaw 

judgment upholding the constitutional validity of District 

On this ground as well, the decision should be overturned. 

This case, in sum, presents two fundamentally different 

pictures of the legislature’s motivations in enacting the 1997 

Plan. One portrait is predominantly political, the other, 

primarily racial. That the court chose the latter over the former 

greatly misapprehends this Court’s precedents and the 
seriousness of the burden plaintiffs must meet to prove racial 

predominance in redistricting. Unless that high bar is 
reestablished through reversal of the decision, the protections 
accorded inherently political legislative decision-making will 
be severely undermined, and redistricting plans that, like North 

Carolina’s, do not convey the message that “political identity 

is, or should be, predominantly racial,” Bush, 517 U.S. at 980 

(plurality opinion), will be improperly invalidated. This “@ 
should not countenance either result. 

I. CAREFUL SCRUTINY OF THE DECISION BELOW 

IS REQUIRED TO DETERMINE WHETHER 

PLAINTIFFS HAVE MET THEIR STRINGENT 
EVIDENTIARY BURDEN FOR PROVING A 

PREDOMINANT RACIAL MOTIVE. 

A. Plaintiffs Must Proffer Compelling Evidence That 

Race Was The Dominant Factor In The District’s 
Design. 

The plaintiffs’ burden in any race-based Equal Protection 

Clause challenge is to establish that the State acted with a 

racially discriminatory purpose. Washington v. Davis, 426 

U.S. 229,240 (1976). Mere proof that a State was conscious of  



  

14 

racial factors or that its actions had a racially discriminatory 

impact is insufficient; the plaintiffs must establish that the State 
acted “because of,” not merely ‘in spite of,’ its adverse effects 

upon an identifiable group.” Personnel Adm’r v. Feeney, 442 

U.S. 256, 279 (1979). 

In cases involving allegations of intentional race 
discrimination, “the ultimate burden of persuasion regarding 

racial motivation rests with, and never shifts from,” the party 

seeking to prove the unlawful discrimination. Purkett v. Elem, 
514 U.S. 765, 768 (1995) (per curiam). Thus, when the State 

defendant proffers a legitimate, nondiscriminatory explanation 
for an action that appears to have a discriminatory impact, the 
burden cannot shift to the State to prove that the asserted 

rationale was the real reason; rather, the plaintiff bears the 

burden of proving that the State’s asserted reason was untrue, 

i.e., amere “pretext” for the real, discriminatory motive. See 
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993) (“[ A] 
reason cannot be proved to be a ‘pretext for discrimination’ 
unless it 1s shown both that the reason [is] false, and that 

discrimination [is] the real reason.”). 

The plaintiffs’ burden is even more difficult in redistricting 
challenges of the type recognized in Shaw v. Reno, 509 U.S. 
630 (1993). Plaintiffs may not establish an equal protection 
violation simply by showing the presence of a racial 

motivation, but rather, must demonstrate that: (1) the state 

substantially disregarded traditional districting criteria in 

drawing district lines, and (2) that it did so predominantly 

because of racial considerations. See Bush, 517 U.S. at 958-59, 

962-63 (plurality opinion); id. at 993-94 (O’Connor, J., 

concurring). See City of Mobile v. Bolden, 446 U.S. 55, 63 

(1980) (“The Court made clear that in the absence of such an 

invidious purpose [racial classification], a State is 
constitutionally free to redraw political boundaries in any 

manner it chooses.”). This standard means that plaintiffs 
cannot merely show that race is a credible explanation for the 

   



15 

challenged district’s design. Rather, they must affirmatively 

demonstrate that the nonracial explanation offered by the State 

is not its predominant motivation but rather is a mere “pretext” 
for the predominant racial motive. 

In this case, the State avers that the legislature was 

motivated not primarily by race in the enactment of its 

redistricting plan, but rather by a predominant desire » 
maintain a six-six partisan balance in the State’s congressiona 

delegation by designing the districts so as to protect 

incumbents. It is not disputed that race and political voting 

behavior correlate tightly in North Carolina — the undisputed 
evidence showed that African-Americans vote 95-97% 

Democratic.?® It also is not disputed that, because of that 
correlation, the lines drawn to create District 12 could be 

explained by race: the most heavily Democratic precincts in 

the Piedmont Crescent where District 12 is located also are 

urban precincts whose residents and voters are, by and large, 

African-American. But the district’s shape also derives from a 
legitimate nonracial goal: protection of incumbents. That goal 

is legitimate, irrespective of its effect on a district’s shape or 

demographics: ® 

If district lines merely correlate with race because they 

are drawn on the basis of political affiliation, which 

correlates with race, there is no racial classification to 

justify, just as racial disproportions in the level of 

prosecutions for a particular crime may be 

unobjectionable if they merely reflect racial 
disproportions in the commission of that crime. 

Bush, 517 U.S. at 968 (opinion of O’Connor, J.); see 

Cromartie, 526 U.S. at 551 (“Our prior decisions have made 

clear 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 
  

2 J.A. 139, 213, 589, 603.  



  

16 

were conscious of that fact.”). 

Thus, when race and political voting behavior are closely 

correlated, it is simply not enough for plaintiffs to establish that 
race is a possible, good, or even very good, explanation for a 

district’s lines. See Bush, 517 U.S. at 968 (opinion of 

O’Connor, J); Miller, 515 U.S. at 916; Shaw, 509 U.S. at 646. 

Plaintiffs must affirmatively demonstrate that the state’s 

asserted rationale of incumbency protection is not the 

predominant motivation for the district’s design. Unless they 
do so, they have not carried their burden of establishing racial 

predominance. See Miller, 515 U.S. at 916. The central issue 

in this case, then, is whether plaintiffs have proven anything 
beyond what they showed at summary judgment: that 
legislators considered race along with a variety of other factors 

in redistricting, and that the district’s borders correlate with 
race. A careful review of the evidence and the opinion below, 

as required by this Court, demonstrates that they have not. 

B. A Rigorous Review Of The Record And Decision 
Below Is Required. 

This Court has made clear that in redistricting cases, it will 

rigorously examine the evidence and the lower court’s findings 
of fact and conclusions of law to determine whether a 

predominant racial motive has been conclusively shown. See 

Bush, 517 U.S. at 959 (plurality opinion). That is because 

“[t]he distinction between being aware of racial considerations 

and being motivated by them” and “the sensitive nature of 

redistricting and the presumption of good faith that must be 

accorded legislative enactments, requires” an “extraordinarily 

cautious” review of a claim that a State has “drawn district 

lines on the basis of race.” Miller, 515 U.S. at 916. Cf. 
Jefferson v. Hackney, 406 U.S. 535, 551 (1972) (expressing 
reluctance to “second-guess state officials charged with the 
difficult responsibility of allocating limited public welfare 

funds among the myriad of potential recipients”). 

   



17 

Such rigorous review is particularly warranted in “mixed 

motives” cases in which the State testifies that legitimate 

districting considerations — such as a desire to protect 
incumbents and to produce a certain partisan balance in the 

delegation — played predominant roles but also concedes that 

race also was a factor in redistricting. See Bush, 517 U.S. at 

959 (plurality opinion). In such circumstances, a ha 

review” of the legislative process is necessary to dete 

whether race or politics was the predominant factor in the 
district’s design. Id. 

Careful review of the record ensures that only redistricting 
plans that engender the constitutional harms said to be caused 

by a predominantly race-based plan are invalidated. Because 
only the excessive focus on race “convey[s] the message that 

political identity is, or should be, predominantly racial,” Id. at 

980 (plurality opinion), and that elected officials’ primary 
obligation “is to represent only the members of [their] group, 

rather than their constituency as a whole,” Shaw, 509 U.S. at 

648, redistricting plans that are nonracial or that are clearly 

predominantly motivated by race-neutral factors do not carry 

racially stigmatizing messages. Careful scrutiny of the “® 
and the lower court’s decision is thus necessary to make ce 

that redistricting plans that do not cause expressive harms are 
not declared unlawful. 

The Court has applied such careful scrutiny in other 

redistricting cases. For instance, in Bush v. Vera, Justice 

O’Connor, writing for the plurality, engaged in a detailed 
district-by-district evaluation of the evidence and the lower 

court’s findings to evaluate whether the decision below had 

sufficient support to warrant affirmance. See 517 U.S. at 963- 

971. Justice O’Connor stated: 

[b]ecause it is clear that race was not the only factor 
that motivated the legislature to draw irregular district 

lines, we must scrutinize each challenged district to 

determine whether the District Court’s conclusion that  



  

18 

race predominated over legitimate districting 

considerations, including incumbency, can be 
sustained. 

Id. at 965. See also Voinovich v. Quilter, 507 U.S. 146, 154-58 

(1993) (invalidating judge’s finding of fact and/or mixed 

findings of law and fact that a Section 2 Voting Rights Act 

violation occurred); id. at 158-60 (invalidating the district 
court’s finding that the redistricting plan violated the Fifteenth 

Amendment because the apportionment board intentionally 

diluted minority voting strength for political reasons). The 

same kind of rigorous scrutiny the Court has applied in 

previous cases 1s warranted here. And that scrutiny leads to 
only one conclusion: the decision below is clearly erroneous?’ 
and requires reversal. 

C. A Comparison Of The Evidence In This Case With 

That In Previous Cases Is Warranted. 

Before turning to the court’s opinion, it is useful to bear in 

mind the level of record evidence of predominant racial 

  

2! 1t is unclear whether a de novo or a clearly erroneous standard applies 
in this case. While the court purported to apply this Court’s predominance 

test, its opinion reveals that it essentially treated evidence that the district’s 
lines correlated with race and that race was a motivating factor as sufficient 

proof to invalidate District 12’s design. This is an application of the wrong 
legal standard, warranting de novo review. Alternatively, if the court did, in 

fact, apply the predominance standard, its conclusion that race 
predominated District 12’s design is clearly erroneous. See Thornburg v. 
Gingles, 478 U.S. 30, 79 (1986) (holding in a case alleging a violation of 

Section 2 of the Voting Rights Act that courts may correct a finding of fact 
that is ““predicated on a misunderstanding of the governing rule of law”); 

Anderson v. City of Bessemer, 470 U.S. 564, 573 (1985) (factual findings 

may be overturned if “the reviewing court on the entire evidence is left with 
a definite and firm conviction that a mistake has been committed”); Uno v. 

City of Holyoke, 72 F.3d 973, 978 (1st Cir. 1995) (noting in a voting rights 

case that “[t]hough the clear error standard is formidable, it is not a 
juggernaut that crushes everything in its path”). Under either standard, the 

decision fails. 

    

 



19 

motivation present in the Court’s previous cases. When viewed 

against this yardstick, it becomes even more apparent that the 

plaintiffs have failed to carry their evidentiary burden under the 
predominance test. 

In Miller, Bush and Shaw, the record contained clear direct 

evidence of predominant racial intent by the Georgia, Texas 

and North Carolina legislatures, respectively. This os, 
evidence consisted, in whole or in part, of the following: 
(1) letters from the Justice Department insisting that African- 

American voting power be maximized through the creation of 

majority-minority districts;?> (2) refusals from the Justice 

Department to preclear the State’s legislative plans as 

insufficiently empowering for black voters;** (3) admissions 
by the state defendants that the challenged districts were drawn 

precisely to maximize minority voting power and/or comply 

with the Voting Rights Act,** and (4) the use of census blocks 

   

  

22 See Shaw II, 517 U.S. at 902 (noting that the Justice Department 

insisted that two majority-minority districts be created and “opined that the 
State’s reasons for not creating a second majority-minority district 

‘appeared to be pretextual’); id. at 913; Miller, 515 U.S. at 917, 920. 

2 See Shaw II, 517 U.S. at 906, 913; Shaw, 509 U.S. at 685; Miller, 4) 
U.S. at 917, 919. 

24 See Vera v. Richards, 861 F. Supp. 1304, 1314-16 (S.D. Tex. 1994) 

(finding that the legislature created a number of “safe” black and Hispanic 

districts in order to address Voting Rights Act concerns and prepared a 

“Narrative of Voting Rights Act Considerations in Affected Districts”); see 
also id. at 1337 (“The defendants concede that Congressional Districts 18, 
29, 30 were created for the purpose of enhancing the opportunity of 

minority voters to elect minority representatives to Congress.”); Bush, 517 

U.S. at 961 (plurality opinion) (State concedes “that the three districts at 

issue ‘were created for the purpose of enhancing the opportunity of minority 
voters to elect minority representatives to Congress’); see id. at 960-61 

(noting race-based concessions in State’s preclearance submission to the 

Justice Department); Shaw II, 517 U.S. at 906 (State concedes that the 
redistricting plan’s “overriding purpose was to comply with the dictates of 
the Attorney General's . . . letter and to create two congressional districts 

with effective black voting majorities’); Miller, S15 U S. at 910 
fAefendante Aid nat Aicesstn than mmeeat? a Com. _1 0° 3°  



  

20 

to draw districts, which provide only total population and racial 

data. The circumstantial evidence of the districts’ bizarre 
shape was directly tied to admitted efforts to comply with 

efforts to maximize African-American voting power. 8 

While the Court has never required proof of all such factors 

to sustain a constitutional challenge, it certainly has never 

permitted a redistricting plan to be struck down when the 

record contains none of these factors. The omissions in the 

record are telling: 

e The record does not have any letters from the Justice 
Department insisting that the State maximize African- 
American voting strength. To the contrary, the State 

communicated with the Government only after the plan’s 
passage, and then only to inform it that it did not believe that 

any majority-minority district other than District 1 was 

justified. J.A. 385. See also J.A. 206-09, 597. 

e The State never conceded that race predominated District 
12’s design or that it intended to make that district majority- 

minority. Quite the opposite, it pursued decidedly nonracial, 

political goals and significantly reduced District 12’s African- 
American population to below 50 percent. See supra note 18. 

  

motivation); see id. at 918 (conceding that “it is undisputed that Georgia’s 
eleventh is the product of a desire by the General Assembly to create a 
majority black district”). 

» See, e.g., Bush, 517 U.S. at 961-62, 970 (plurality opinion) 
(“unprecedented” use of census block data “enabled districters to make 
more intricate refinements on the basis of race than on the basis of other 

demographic information”); Johnson v. Miller, 864 F. Supp. 1354, 1377-78 

(S.D. Ga. 1994) (legislature engaged in a “block by block search for black 
voters to add to the [district]”), aff’d, 515 U.S. 900 (1995). See also Silver 

v. Diaz, 522 U.S. 801 (1997) (three judge court) (invalidating district that 
was at points “one-block long” and “curve[d] and weave[d] among streets 
blocks” to pick up minority voters). 

26 See Shaw, 509 U.S. at 685-86; Shaw II, 517 U.S. at 906; Miller, 515 
U.S. at 917. 

   



21 

e The State drew districts based on precincts, which are 

much larger than census blocks, and include political data.?’ 

e Since the record is devoid of evidence that lawmakers 
were pressured to, and pursued, a policy of maximizing 
African-American voting strength, there is no proof that the 
district’s shape was tied directly to that policy. 

In short, as a review of the record and the decision bel 

reveals, there is simply no basis to support the court’s 

conclusion that plaintiffs satisfied their difficult burden of 

proving that the district’s lines were drawn predominantly on 

race and that traditional redistricting criteria were subordinated. 

II. THE COURT IMPROPERLY CONCLUDED THAT 
RACE, NOT INCUMBENCY PROTECTON, WAS 
THE PREDOMINANT FACTOR IN THE DESIGN OF 
DISTRICT 12. 

It is axiomatic that, in determining whether a constitutional 
violation has occurred, a court must start with the presumption 
that a state legislature has acted in good faith and for 
permissible motives. See Mueller v. Allen, 463 U.S. 388, 394 
(1983). That presumption fully applies in redistricting cas 
See Miller, 515 U.S. at 916 (applying “presumption of goo 
faith that must be accorded [all] legislative enactments”). 
Indeed, it is particularly important in redistricting cases in light 
of the “complex interplay of forces that enter [into] a 
legislature’s redistricting calculus” and the core sovereignty 
function the redistricting process represents. Id. at 915-16. 
Thus, “although race-based decision making is inherently 
suspect, until a claimant makes a showing sufficient to support 
that allegation the good faith of a state legislature must be 
presumed.” Id. at 915 (citation omitted). 

In this case, the district court, in fact, specifically found that 
the 1997 Plan was generally drawn to maintain the six-six 
  

7 J.A. 518-20, 585.  



  

22 

partisan balance in the State’s congressional delegation, and, to 
that end, had two legitimate, nondiscriminatory goals: “(1) to 

avoid placing two incumbents in the same district and (2) to 

preserve the partisan core of the existing districts to the extent 

consistent with the goal of curing the defects in the old plan.” 
J.S. 11a. The panel further acknowledged that “[t]he plan as 

enacted largely reflects these directives: incumbent 

Congressmen generally do not reside in the same district, and 

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

district.” Id. Finally the court recognized that District 12 is, in 
fact, “one of the six predominantly Democratic districts 
established by the 1997 Plan to maintain the 6-6 partisan 

division” in the congressional delegation. J.S. 11a-12a. 

Yet, despite the court’s recognition that the legislature was 

pursuing legitimate redistricting goals, it relied principally on 

three stands of evidence to rule that District 12 was not 
designed predominantly to further those goals. First, the court 

used registration data to support its conclusion that the 
district’s design was based predominantly on racial factors. 

Second, relying on the testimony of the plaintiffs’ expert, the 
Court concluded that racial statistics, and only racial statistics, 

could explain District 12°s boundaries. According to the court, 

the “uncontroverted evidence” demonstrated that: 

The only clear thread woven throughout the districting 

process is that the border of the Twelfth district 

meanders to include nearly all of the precincts with 

African-American populations proportions of over forty 
percent which lie between Charlotte and Greensboro, 
inclusive. 

J.S. 25a (emphasis added); see id. 26a (“political explanations 

utterly failed to explain the composition of the district”). 

Third, the court relied on a few isolated statements by 
defendants that, it said, evinced a racial motive. Id. 27a-28a. 

Whether standing alone or taken together, these evidentiary 

   



23 

strands are insufficient to refute the State’s showing that 

partisan politics provided the predominant motivation for 
District 12’s design. 

A. The Court Erroneously Discredited The State’s 

Motives Based On Registration Data Rejected By 
The Legislature. 

Repeating an error it made on summary judgment, the @ 
again used registration data to impugn the State’s motives. 
This was plainly wrong. 

The court relied on maps that showed Democratic 
registration percentages by precinct. Using this data, the court 

focused on a few precincts adjacent to District 12 with 

Democratic majority voter registration rates that were not 

included in the district. See, e.g., J.S. 13a (“[AJround the 

Southwest edge of District 12 (in Mecklenburg County), the 
legislature included within the district’s borders several 

precincts with racial compositions of 40 to 100 percent 

African-American, while excluding from the district voting 
precincts with less than 35 percent African-American 
population, but heavily Democratic voting Roa 
(emphasis added); id. at 13a-14a (citing precincts 

Mecklenburg and Forsyth Counties adjacent to, but not 

included in District 12, with Democratic “registrations” the 
court considered significant). 

Such “findings” are wholly irrelevant. It was undisputed at 

trial that voter registration is not a useful indicator of actual 

voting performance in North Carolina. Indeed, as plaintiffs’ 

own expert acknowledged: “registration data is the least 
reliable data to use for purposes of talking about political 
performance.” J.A. 118 (emphasis added); see Cromartie, 526 

U.S. at 551 (“[Defendants’ expert’s] more complete analysis 

was significant because it showed that in North Carolina, party 

registration and party preference do not always correspond.”). 

For that reason, the uncontroverted evidence established that  



  

24 

the State used actual partisan voting patterns, not registration 

data, to draw district lines. See supra note 7. The court’s 
failure to evaluate the State’s actions against the criterion it 
used, and its reliance on a criterion the State expressly did not 

use — to conclude that race predominated the district’s design 
cannot withstand scrutiny. 

The court’s approach is fundamentally at odds with settled 

law. In evaluating whether a state’s asserted justification for a 
particular action is pretextual, its asserted rationale has always 

been compared with the criterion it used to achieve its goals. 

See, e.g., Davis, 426 U.S. at 245-46 (comparing State’s use of a 

written personnel test to hire police officers against State’s 
asserted justification that the test was necessary to predict job 

performance); see id. at 267 (quoting Albemarle Paper Co. v. 

Moody, 422 U.S. 405, 433 (1975) (“We were unable ‘to 

determine whether the criteria actually considered were 
sufficiently related to the [employer’s] legitimate interest in 

job-specific ability to justify a testing system with a racially 
discriminatory impact.’”’) (emphasis in original); Feeney, 442 

U.S. at 265, 275-80 (comparing hiring preference for veterans 

alleged to discriminatorily impact women against State’s 

asserted goals). A predominant racial motive simply may not 

be derived by comparing the State’s asserted rationales against 

a criterion it did not use. 

Ironically, even if the legislature had used registration data, 

rather than voting patterns, to design District 12, the court’s 

opinion still would be unfounded. The registration data 
demonstrates that, with only very rare exceptions, the precincts 

outside of District 12 consistently have Democratic registration 
below 60%, while the adjoining precincts inside the district 

consistently have much higher Democratic registration rates — 

ranging from 60% to over 90%. 

  

?® Joint Exhibits 107-109 (filed with the Court). On the rare occasions 
when a precinct within the district is between 50% and 60% in Democratic 

   



25 

B. The Court Unreasonably Inferred A Predominant 

Racial Motive From Expert Testimony That Did 

Not Refute The State’s Showing That Partisanship 
Predominated The District’s Design. 

The court also based its racial predominance ruling on 

particular passages from the testimony of plaintiffs’ expert, Dr. 

Ronald Weber, who — according to the court — “showed  _ 

and again how race trumped party affiliation in the constructi 
of the 12th District and how political explanations utterly failed 

to explain the composition of the district.” J.S. 26a. For the 
critical propositions that “race trumped party affiliation” and 

that incumbency protection “utterly failed” to explain the shape 

of the district, the court relied on six distinct passages from 
Weber’s testimony: J.S. 26a (citing Trial Transcript (“Tr.”) 

pages). Not one of those passages supports either proposition. 

The cited testimony makes the following points: 

(1) Tr. 162-63 (J.A. 90-91): District 12 was not designed 
principally to further a partisan political agenda because it is 

more Democratic than necessary to elect a Democratic 

incumbent. Had the legislature really wanted to prot 
incumbents, it would have taken some voters out of District @) 
and placed them in adjacent District 8 to make it more 

Democratic. 

(2) Tr. 204-05 (J.A. 105-07): The counties in District 12 

are always divided along racial lines, while predominantly 
white Democratic precincts were excluded.” 

  

registration, the Democratic registration for each such precinct consistently 

is higher than that for its adjoining “excluded” precinct. See id. See also 

App. Br. at 1-3 (maps based on Joint Exhibits 107-109 contrasting 

Democratic registration figures for precincts inside and outside of District 

12). 

% This testimony also suggests that a Democratic district could have 

been drawn using Mecklenburg County as the anchor. The feasibility of 

this idea is addressed below. See infra at 32-33.  



  

26 

(3) Tr. 221 (J.A. 111): Every African-American precinct 
that could have been assigned to District 12 was assigned, 

while adjacent districts retained their white Democratic 
precincts. 

(4) Tr. 251 (J.A. 131): When race and politics are 

disentangled, race predominated the district’s design. 

(5) Tr. 262 (J.A. 139-140): The assignment of precincts in 

District 12 is inconsistent with a political motivation because 
white Democratic precincts were excluded. 

/ 

(6) Tr. 288 (J.A. 156): A Democratic district could be 

drawn without putting all of the African-American precincts in 
that district. 

Because the sum total of Weber's testimony proves nothing 
more than a close correlation between race, voting patterns and 

District 12s borders, it “utterly failed” to establish that race 
predominated the district’s lines.”’ 

  

%® Weber also suggests in this citation that Precinct 77 could have been 
swapped with “a precinct or two in Forsyth County and have the same 

partisan result.” J.A. 111. This suggestion is discussed below. See infra at 
30-33. 

*! Weber’s testimony was questionable from the start. First, he 
presumed a predominant racial motive from the outset, without considering 

alternative theories. J.A. 136-37. See also J.A. 746. Second, Weber 

testified that he did not believe that legislative bodies should be entrusted to 
draw redistricting plans. J.A. 150-51. Finally, Weber erroneously assumed 

that the State’s computer database only permitted legislature’s to view and 
manipulate precincts based on racial factors: 

The computer screen used by the North Carolina Legislative GIS 

System displays racial breakdowns as the plan designer is working 

and does not display political breakdowns. . . . Assessment of the 
political character of a district is post-hoc and cannot be done 
while precincts are being allocated to a district. 

J.A 302 (emphases added). Weber repeated this error at his deposition, just 
eight weeks before trial, and did not abandon it until his cross-examination. 
J.A. 138-39. His supposition was plainlv wrong. See TA 519-20 (shawino 

   



27 

First Record Citation 
  

Weber’s first assertion that the State’s motives were 

predominantly race-based because the district was overly 
Democratic was predicated on his view that a 60 percent 

partisan majority is optimal. J.A. 91. But an examination of 

voting patterns in the elections the legislature used to draw 

district lines — elections tracked in the State’s comput 
database and relied on by the plan’s drafters — shows tha 

District 12 was three percentage points above Weber's 
optimum figure,>? and thus, hardly can be said to be overly 

packed with Democrats.>> Moreover, two Republican districts, 

6 and 10, also exceeded the 60-percent figure,>* and thus, were 

“overly” Republican. If no impermissible motives are drawn 
from the creation of two “overly safe,” J.A. 91, Republican 

districts, then no nefarious purpose can be derived from a 
similar allocation in a Democratic district. 

  

the political data available to the legislators by precinct). This case is thus 

significantly different from previous cases in which only racially laden, 

census block data was available. See supra at 19-20. 

32 This figure is derived by averaging Democratic voting returns for 

three elections the legislature used to draw district lines. See J.A. 80a: 

Weber’s reliance on a single election, the 1990 Senate race, is misplaced 

because the legislature used all three elections in redistricting. J.S. 206a- 
207a. Using the Gantt-Helms race alone skews the results because Gantt 

was the Mayor of Charlotte in District 12, and thus drew higher than 

average Democratic returns. The State also considered the judges’ race, not 

the Gantt-Helms race, the most reliable indicator of actual party preference 
because voters generally are unaware of individual candidates’ qualities. 

However, even considering that race alone, Republican Districts 6 and 10 
also exceed Weber’s 60-percent optimum partisan range. J.S. 80a. 

33 Even Weber concedes that all politicians prefer their districts to be as 

safe as possible. Tr. 265 (“I never met a politician who would admit their 
district was too safe”). 

* JA. 80a. This result is derived by averaging Republican voting 
returns in the three elections tracked in the legislature’s database. See supra 

note 7.  



  

28 

Second, Third and Fifth Record Citations 

The contention Weber makes in the second contention — 

that the counties included in District 12 follow racial lines — is 
really the same as the point made in the third and fifth 

citations: that District 12 always includes African-Americans, 

to the exclusion of available white Democrats. That 

observation provides crucial evidentiary support for the district 
court’s finding of pretext: 

  

Dr. Weber showed that, without fail, Democratic 
districts adjacent to District 12 yielded their minority - 

areas to that district, retaining white Democratic 
precincts. This testimony served to undermine 

Defendants’ contention that race was merely a factor in 
creating the 1997 Plan’s 12th District, and that a desire 

to place high-performance Democratic areas (which 

happen to contain minority populations) within 

Democratic districts could explain the construction of 
the 12th. 

J.S. 26a-27a (citation omitted). 

But that conclusion — and the testimony cited to support it — 
ignores a key, uncontroverted fact: all of the precincts inside 

District 12 had higher Democratic voting rates (and even 

higher registration rates) than their contiguous white 

counterparts outside the district.”> Even Weber was forced to 

concede this point. J.A. 140 (“Q: Are the white precincts as 

heavily Democratic? A: No.”). The conclusion that race 

predominated over partisan politics only could be established if 

it could be shown either that predominantly African-American 
precincts were included in the district, even though they were 

not reliably Democratic on election day (thus permitting a 
permissible racial inference to be drawn from the deviation 

  

33J.S.213a,217a, 221a (maps comparing voting patterns of contiguous 

precincts inside and outside of District 12). 

   



29 

from the asserted political criterion) or that contiguous white 

precincts that were equally loyal or more loyal to the 
Democratic Party consistently were excluded from the district. 

Weber's evidence showed neither. 

Obviously the district’s lines had to be drawn somewhere, 

and some Democratic-performing precincts would have to be 

left out. But since the precincts actually assigned to District 

are the most heavily Democratic, the pattern is fo. 
consistent with the State’s partisan political explanation, and 
certainly does not establish pretext. And since African- 

Americans in the State vote 95-97% Democratic, see supra 
note 20, the fact that the more reliable Democratic precincts 

also are the most heavily African-American is not at all 
surprising. Nor is it probative of racial predominance that the 

divisions of the counties and towns between District 12 and the 

surrounding districts comport with race, since all the districts 
were drawn to further partisan political goals, and race and 
political loyalties in North Carolina are closely correlated.’ 

Notably, the precincts and counties in the adjacent Republican 

districts evince the same correlation between race and voting 

pattefns as those in District 12: they are nearly ® 

1 

  

3 As the state’s expert, Dr. Peterson, concluded after comparing all o 
the contiguous precincts inside and outside of the district: “[I]n the great 
majority of instances, the boundary of the 12th District serves to fence in 

Democrats rather than to fence them out.” J.S. 173a. The Court in 
Cromartie deemed Peterson’s “more thorough” analysis as “significant 

because it showed that in North Carolina, party registration and party 
preference do not always correspond.” 526 U.S. at 541. Weber and the 

district court majority, however, inexplicably dismissed Peterson’s segment 

analysis as “unreliable” in part because he ignored the “core” of the district. 
Peterson’s analysis, however, responded directly to the court’s own analysis 
comparing precincts along the outside of the district boundary with those 
inside the boundary, except that Peterson looked at all of the precincts and 
political data, not just registration figures. J.S. 161a-167a, 178a-182a. 
Weber also compared selected precincts along the district’s borders. See, 

e.g, JA. 104. 

37 See 1.S. 189a-91a; J.A. 250-52. See also J.A. 564 & n.1.  



  

30 

Republican and white.”® Yet, this nexus among white voters, 

which bolsters the State’s position that the district’s lines were 
the product of a preexisting correlation between race and 

politics, was left unaddressed. 

At bottom, these three record citations do nothing more 
than demonstrate a correlation between race and District 12’s 

borders. Such a correlation is hardly sufficient to prove that 
race was the “dominant and controlling” consideration in the 
district’s design and that traditional redistricting criteria were 

subordinated. Shaw II, 517 U.S. at 905; Miller, 515 U.S. at 

913. Ironically, given the absence of viable Democratic 

alternatives, the only reason for a legislature seeking to shore 
up a Democratic district to do what Weber and the court 

suggest — prefer less reliable districts over more reliable ones — 

would have been to “whiten up” the district — a constitutionally 
impermissible goal. 

Fourth Record Citation 
  

Because Weber’s testimony fails to establish racial 

predominance, his conclusion at the end of his direct testimony, 
that race predominated District 12’s design, is of no moment. 

JAA. 131. Since Weber's testimony fails to prove 

predominance, then his conclusion based on that testimony 
likewise is of little value. 

Sixth Record Citation 
  

Weber’s claim that the legislature’s political explanation is 

belied by the availability of an alternative Democratic district 
that would not need to include as many African-American 

precincts is completely unfounded. Although the court gave 

this claim particular significance, see J.S. 26a, the record is 

devoid of any realistic alternatives. Nowhere does Weber 

  

8 1.S. 77a-79a. 

* Even if the district could have been designed differently, that would 
not. in and of itself. establish invidions discrimination The decicion tn 

   



31 

even demonstrate that his so-called alternatives would 

significantly improve the district’s shape. 

Weber’s first attempt at crafting an alternative is to point 
out that Precinct 77, which was split in the 1997 Plan, could 

have been moved entirely out of District 12 and into District 9. 

J.A. 110-11. Not only is Precinct 77 in Mecklenburg County, 

the home base of the Democratic incumbent, but the district t 

which Weber seeks to assign it, District 9, is represented 

Republican incumbent Sue Myrick. Shifting these Democratic 
voters into a predominantly Republican district would have 

wasted their votes, and made both districts less safe for their 

incumbents — the precisely opposite goal of the legislature. 
Moreover, it 1s simply impossible to see how Weber's 
testimony about Precinct 77 supports the conclusion that a 

more compact district could have been created. Not even 

Weber claims that moving this single precinct out, and adding 
others in, would have made the district more compact. 

Weber’s second attempt is to claim that some of District 

12’s predominantly African-American precincts could have 

been placed 'in adjacent District 8. But this proposal is 

  

prefer one design to another is purely the province of the legislature, and 

constitutionality of a state’s redistricting plan should not depend on the 
individual preferences of statistical experts or federal courts. See Miller, 
515 U.S. at 915; Growe v. Emison, 507 U.S. 25, 34 (1993); Chapman v. 
Meier, 420 U.S. 1, 27 (1975). 

“ Assuming arguendo that Weber had been able to identify a few 
precincts that actually could have been moved out of District 12 and into 

District 8 to make the latter more safe, that hypothetical possibility could 

hardly be probative of a predominantly racially discriminatory motive given 

the almost unimaginable complexity of the districting process. To infer that 

race and not incumbency protection was the State’s predominant motive on 
the basis of slender deviations from an asserted hypothetical norm would 

contravene the Court’s admonition that courts respect legislative 

prerogatives and exercise “extraordinary caution in adjudicating claims that 
a state has drawn district lines on the basis of race.” Miller, 515 U.S. at 

916.  



  

32 

unworkable. Moving District 12’s precincts in Mecklenburg 

County into District 8 would have split the county three ways 
between three incumbents — Sue Myrick, Mel Watt, and Bill 

Hefner. This approach would have disrupted the political bases 

of two incumbents who both live in Mecklenburg’s County’s 
main city, Charlotte. Moreover, as even Weber concedes, a 
three-way split would have contravened the legislature’s goal 

of not dividing any county into more than two parts,*! and also 

would have been likely to raise the suspicion of a federal court 

for failing to respect traditional redistricting criteria. *? 

Weber also suggested the possibility of using essentially all 
of Mecklenburg County as the anchor for a Democratic district 
in the Piedmont Crescent. J.A. 133. The district court did not 
cite or rely on that suggestion, and it is easy to see why. For 

the reasons just discussed, Mecklenburg County Aad to be split 
between a Republican and a Democratic district, because both 

Democratic and Republican incumbents live in the county seat 

of Charlotte.’ Moreover, as even Weber concedes, a 

  

4 3A.179, 754. 

“2 Though Weber did not offer any other possibilities for swapping 
some of District 12’s precincts with those in District 8, it bears mention that, 
as a map of the 1997 Plan shows, see J.A. 501, District 8 also could not 
have expanded further north to reach the Democratic precincts in Rowan 
County because those precincts are blocked by a large Republican buffer of 

Republican precincts. Legislators would thus have been forced to include 
too many Republican precincts in Rowan County before reaching the 
Democratic precincts in that county, undermining District 8’s Democratic 

base and diluting adjacent District 6’s Republican base. District 8 also 
could not have gone northwest into Iredell County because that would have 
split District 12 in half, or divided Iredell County between three districts and 

significantly reduced District 12°s width. 

* Even if such a unified county had been politically feasible, neither 
Weber nor the court explains how the rest of a Twelfth Democratic district 

centered around Mecklenburg County could have been drawn, and no 
realistic options are apparent. For instance, Mecklenburg could not have 
been ioined to neighboring Cabarrus Countv since Cabarmis was Hefner’s 

   



33 

Mecklenburg district would have been only “marginally 

Democratic,” id., and thus, would not have served the State’s 
goal of making a sufficiently safe district to protect the 
incumbent. ** 

kk 

In sum, the district court’s conclusion that Weber’ 

statistical analysis “showed time and again . . . how voliticl) 

considerations utterly failed to explain the composition of the 
district,” J.S. 26a, was clear error. A predominant racial 
motive simply cannot properly be inferred from evidence 

establishing that African-American majority precincts are 

consistently assigned to District 12 when the undisputed 

evidence also shows that those selfsame precincts are not only 
reliably Democratic but more reliably so than their 
predominantly white, Democratic counterparts. 

It also was unreasonable for the court to infer a 

predominant race-based motive from Weber’s claim that 

District 12 i too Democratic to be explained by incumbency 

protection, and that a different district would have been drawn 

if that had been the State’s true predominant goal. Tho 
inferences ignore the existence of Republican districts boll) 

  

home base, and he insisted that his entire county remain in District 8. J.S. 

208a; J.A. 205-06, 661-62, 781-82. 

* In a colloquy during trial, Judge Boyle noted that District 12 in the 

1998 Plan was more compact and that the Democratic incumbent prevailed 
in the 1998 election under that plan. J.A. 204-05. The district court’s 

opinion, however, did not cite or rely on the 1998 Plan as evidence that the 
State could, hypothetically, have drawn a more compact, sufficiently 

Democratic district and thus must not have been motivated by partisan 

considerations. In any event, it is not disputed that the 1998 Plan is much 
less Democratic and, thus, affords a sitting incumbent much less protection 
than the 1997 Plan. The 1998 Plan eliminated all of Guilford County from 

District 12, and assigned it, along with loyal Democratic voters, to 
overwhelmingly Republican Districts 5 and 6, effectively nullifying their 

votes. See, e.g., J.A. 192-94, 625.  



  

34 

Weber’s optimal party level, as well as the undisputed political 

and geographic constraints on the districting process. Perhaps 
most devastating is the complete absence of any viable 

alternatives for a Democratic district in the Piedmont Crescent. 

In short, nothing Weber offered even tended to show — much 

less conclusively prove — that incumbency protection did not 

explain District 12’s lines “as well as, or better than, race.” 

Bush, 517 U.S. at 968 (O’Connor, J., concurring). 

Indeed, when the record evidence is viewed through the 
proper lens, a striking irony emerges from the decision below. 

The district court, not the State, seems predisposed to define 
voters in and out of District 12 based on their race. As noted 
above, the court’s descriptions of the precincts and sections of 

cities and counties in District 12 are consistently put in racial 

terms, when in every single instance, the court could just as 

readily have substituted the phrase “loyal Democrat” for 
“African-American.” And in focusing on the State’s failure to 
prefer the “excluded” majority-white precincts over those 

actually most loyal to the Democratic party, the panel’s opinion 

effectively suggests that the legislature should have been 

motivated by race — that it should have preferred the “whiter” 
but less Democratic surrounding precincts over the “blacker,” 

but more Democratic included precincts. Surely Shaw claims 

were never intended to turn the central guarantee of equal 
protection — race neutrality — entirely on its head. 

C. The District’s Shape Was Not Probative 

Circumstantial Evidence Of Motive Because The 

Shape Was Justifiable On Both Racial And Political 

Grounds. 

This Court consistently has held that the “bizarre” shape of 

a district “may be persuasive circumstantial evidence that race 
for its own sake, and not other districting principles, was the 

legislature’s dominant and controlling rationale in drawing its 

district lines.” Miller, 515 U.S. at 913. Relying on this 

principle, the district court focused on the “meander{ing]” 

   



35 

shape of the district and its evident diversions to “pick up” 

African American voters, J.S. 25a; see id. at 12a-17a, 26a. But 
the fact that the district’s shape was capable of being explained 

by racial factors did not prove that race was the predominant 

factor. As Justice O’Connor stated in Bush: “In some 

circumstances, incumbency protection might explain as well as, 

or better than, race a State’s decision to depart from othe 

traditional districting principles, such as compactness in A 
drawing of bizarre district lines.” 517 U.S. at 968. 

Dramatic improvements in the district’s shape, moreover, 

only bolstered the legislature’s partisan non-racial explanation. 

At the outset, it bears mention that the legislature’s legal 
obligation was to remedy the constitutional violations in its 
prior plan, not to begin completely anew in drawing its 

districts. In accomplishing that objective, the legislature did 
what other courts and legislative bodies in similar 
circumstances have been instructed to do: retain the core of the 

prior redistricting plan, while taking those steps necessary to 
cure the Constitutional violation. See, e.g., Upham v. Seamon, 
456 U.S. 37, 43 (1982) (per curiam); Lawyer v. Dep't of 
Justice, 521 U.S. 567, 574, 577-81 (1997). Ww 

n Yet, despite the narrow scope of its constitutio 

obligation, the legislature made sweeping changes to District 

12. As even the court below conceded, the new district 

eliminated nearly one-third of its population and three-fifths of 

the land from the prior 1992 design. The district also was 

shortened by 65 miles from its former length of 160 miles, 

making it the third shortest district in North Carolina. In 

addition, legislators widened the district and eliminated split 

precincts, point contiguity, cross-overs and other artificial 

means of maintaining contiguity. See supra note 9. As much 
as possible, the district followed natural boundaries such as city 

lines, main roads and transportation corridors. The district’s 

African-American population was reduced from 56.63% to 

46.67% and its African-American voting age population was  



  

36 

reduced from 53.34% to 43.36%. The precincts that were 

included in District 12 shared a community of interest 
emanating from their position as urban areas that ran along a 

major transportation corridor. See supra note 16.* 

In the face of these dramatic changes and the legislature’s 

adherence to traditional redistricting criteria, the court’s 
dismissal of such changes as being of “limited value” and not 
“advanc[ing]” the State’s argument that partisanship dominated 

the district’s design, J.S. 24a, was erroneous. To be sure, 
District 12 is longer and thinner than the other districts. But 

that 1s explained by legitimate and unavoidable political and 

geographic factors. The goal of creating a Democratic district 
in the Piedmont Crescent could not be achieved by drawing a 
circle; the district had to be elongated because the main cities 

in this part of the State with significant Democratic populations 
— Charlotte, Greensboro and Winston-Salem — themselves 
stretch North and South along the Piedmont Crescent. The 

thinness of the district is attributable to the dense population in 
that area of the State; expanding the district’s lines would have 

exceeded the population balance and swept in too many 

neighboring Republican precincts. The legislature also was 

constrained by the political reality that neither party intended to 

cede the major cities of Charlotte, Greensboro or Winston- 

Salem to the other. Moreover, as indicated above, the 

legislature had to draw the district’s boundaries in such a way 

as to preserve both the Democratic character of District 12 and 

the Republican character of neighboring districts 5, 6, 9, and 

10. Thus, the court’s conclusion that the district “winds” and 

  

* In this respect, District 12 is similar in concept to Georgia's 
permissible remedial District 11, which uses the “connecting cable” of 
Interstate 85 to string together parts of 13 counties to form a district with a 
distinctive “urban/suburban flavor” and “a palpable community of 
interests.” Johnson v. Miller, 922 F. Supp. 1556, 1564 (S.D. Ga. 1995), 

aff’d sub nom., Abrams v. Johnson, 521 U.S. 74 (1997). 

% See, e.g., 1.S. 207a-09a. 

   



37 

weaves to “gobble in” African-American precincts, J.S. 24a- 

25a, simply ignores the fact that the district could just as 
readily be described as “wind[ing] and weaving to “gobble in” 

reliably loyal Democratic precincts in an area of the State that 

is surrounded by precincts that are predominantly Republican 
or only marginally Democratic. 

The panel’s dismissal of the improvements in the 19 

Plan, moreover, is inconsistent with the Court’s treatment 

changes to other remedial plans in prior cases. For instance, in 
Lawyer, the Court upheld a revised redistricting plan that 

retained a significant portion of the State’s prior plan, even 

though the district was still irregular in shape and had a 
significant number of minority voters. 521 U.S. at 574, 577- 
81. Likewise, in Wright v. Rockefeller, 376 U.S. 52 (1964), the 

Court upheld a redistricting plan that contained four irregularly 
drawn districts because it recognized the geographic and 
demographic difficulties of designing districts in that area of 
the State. “Although the boundary lines were somewhat 

irregular, the majority reasoned, they were not so bizarre as to 
permit of no other conclusion.” Shaw, 509 U.S. at 646 

(discussing Wright) (emphasis added). The facts of this ¢ 

compel the same conclusion. % 

D. The Panel’s Reliance On Isolated Statements By 

Legislators That Establish, At Most, That Race Was 

Considered Does Not Establish That Race 

Predominated. 

This Court has not hesitated to invalidate a lower court 

decision if the court draws an unreasonable and thus 

impermissible inference from the record. See, e.g., Lynch v. 

Donnelly, 465 U.S. 668, 680-81 (1984). Here, the lower court 

drew precisely such unreasonable inferences. The court took 

anecdotal evidence that legislators were aware of and had 
discussed race in designing District 12, and inferred a 

predominant racial motive. This inference was unreasonable in 

light of the record. At most, the evidence suggested that race  



  

38 

was one consideration among many in redistricting. Such 

evidence could thus not be used to establish that race was the 

“dominant and controlling” consideration, Shaw II, 517 U.S. at 

905, in District 12’s design, and that traditional redistricting 

criteria were subordinated. See Miller, 515 U.S. at 913. 

As the uncontroverted evidence established, the goal of the 

legislature was to design districts that would maintain the 
partisan balance and protect incumbents. See supra note 6. 

Even the court conceded that these goals were faithfully 

pursued. See J.S. 11a (noting that the plan “reflects these 

directives”). Yet, from this comprehensive record of the 
legislative redistricting process, the district court plucked out 

three isolated statements from defendants, and erroneously 

construed them as supporting the predominant use of race. 

The court first quotes a fragment of a statement by Senator 
Cooper on the floor of the Senate that the plan provides for a 

“racial and partisan balance” and uses that statement as 
evidence that the legislature intended to maintain the ten-two 

racial balance in the legislature. J.S. 27a. But this ignores the 

overwhelming thrust of Cooper’s testimony: that the 

legislature sought to comply with the law by adhering 
principally to race-neutral principles, while ensuring that the 

redistricting plan was fair to minorities and gave them a “fair 

shot” at winning an election. J.A. 221-22 (quoting Cooper’s 
testimony). 

Moreover, the court omitted Cooper’s reference to a 

“geographical” balance in the same phrase as “racial” and 
“partisan” balance. J.A. 221; see also J.A. 460 (Cooper noting 

that the overall the plan “provides for a fair geographic, racial 

and partisan balance throughout the State of North Carolina”). 

The reference to “racial” alongside “geographical” and 
“partisan” conveys, at most, that the legislature considered 

each of these factors in redistricting. It certainly does not 

demonstrate that race trumped political or geographical factors 

in the district’s design. And since it cannot reasonably be 

   



39 

inferred that “geographical balance” means that the 1997 Plan 

allocated a specific number of districts based on geographic 

lines, there was no reason to assume — and plaintiffs did not 

conclusively demonstrate — that Cooper’s reference to race had 

a numerical connotation. 

The court’s reliance on a second statement by Cooper 

during the Senate floor debate that strict scrutiny analysis m 

not be triggered because District 12 is not majority-minor 

was wholly beside the point. Cooper was merely reciting his 

understanding of the current state of equal protection law.*’ 

Finally, the district court majority gave considerable weight 

to a hastily drafted e-mail to Cooper from Gerry Cohen, the 

legislature’s computer technician. J.A. 369. The e-mail deals 
almost exclusively with details regarding shifts of precincts in 
District 1. Only the last line of the e-mail even purports to 

address District 12. The phrase that Cohen had “moved 

Greensboro Black community into the 12th and now need to 
take bout [sic] 60,000 out of 12th,” id., was merely a shorthand 

description for those sections of Greensboro that were added to 

the district — areas that were predominantly African-American 

and solidly Democratic. J.A. 629 (Cooper stating that 

“already knew that the precincts that were in the wi 

black areas were heavily Democratic”). Surely an equal 

protection violation cannot turn on Cohen’s failure to stick the 
word “Democratic” between “Greensboro” and “Black.” 

  

7 The Court recognized in Lawyer that “[t]he fact that [a challenged 

district] is not a majority-black district . . . supports” a decision not to 
subject that district to strict scrutiny. 521 U.S. at 581. In any event, 

Cooper’s testimony that there was no motive within the legislature to keep 

the African-American percentage just below 50% is uncontradicted. J.A. 
221. 

“8 Obviously, in light of the extension of the district to Greensboro, 

other residents would have to be removed to maintain the population 

balance. Moreover, the e-mail was simply inaccurate: the changes to the 
nlan rafaroncrad her tha a mail added 70 CailfarA Canim rracinate ta Dinter ~¢  



  

40 

Even putting these strands of evidence in their strongest 

light, these statements, at best, establish that racial 

considerations were a factor in Cooper’s thinking — a fact the 

State readily admitted, J.A. 222, and this Court has found 

permissible. See Bush, 517 U.S. at 958-59 (plurality opinion); 
see id. at 993 (O’Connor, J.,, concurring). But it is 

unreasonable to infer racial predominance from these isolated 

fragments, which neither disprove the State’s position that 
politics predominated the district’s design nor establish that 

traditional redistricting criteria were subordinated. As Judge 
Thornburg aptly noted, these statements merely reinforce the 

fact that lawmakers “were conscious of race, aware of racial 

percentages, on notice of the potential constitutional 

implications of their actions, and generally very concerned with 
these and every other political and partisan consideration which 
affected whether or not the redistricting plan would pass.” J.S. 

47a-48an.18. 

This Court’s holding in Lynch v. Donnelly, 465 U.S. 668 

(1984), reviewing an Establishment Clause claim, is 
instructive. In reviewing a district court’s determination that a 

city’s inclusion of a créche in a holiday display lacked a secular 

purpose, the Court held that the decision could not be sustained 

because the court drew the wrong inference from the evidence. 

See id. at 680 (“The Court has invalidated legislation or 

governmental action on the ground that a secular purpose was 

lacking, but only when it has concluded there was no question 

that the statute or activity was motivated wholly by religious 

considerations.”).*” The same is true here: plaintiffs simply 

  

12, of which 18 were majority white, and involved over 100,000 citizens, of 
whom about 50,000 were white. J.A. 264-65, 268. 

¥ See also Henry v. C.IR, 170 F.3d 1217, 1233 (9th Cir. 1999) (Tax 
Court drew “speculative” inferences from the record); Llampallas v. Mini- 
Circuits, Inc., 163 F.3d 1236, 1248-49 (11th Cir. 1998) (If “there is [no] 
evidence to support an inference of a causal link between . . . discriminatory 

animus and the decision to terminate [thel emplovment” the court will 

   



41 

have not shown that there was “no question” that race 

predominated the design of District 12. 

III. RECOGNIZED CLAIM PRECLUSION RULES 
BARRED PLAINTIFFS FROM CHALLENGING 
DISTRICT 12. 

The district court erred in even entertaining plaintiffs’ 

challenge to the constitutionality of District 12; this chall 
plainly was barred by claim preclusion. On remand from this 

Court’s decision in Shaw II, the district court explicitly 
approved the 1997 Plan’s reformation of District 12 “as a 

constitutionally adequate remedy.” J.S. 320a. The plaintiffs in 

that case did not appeal that ruling. Because the two Cromartie 

plaintiffs residing in District 12 were in privity with the Shaw 

plaintiffs through “virtual representation,” they were bound by 

the Shaw decision, and the district court should have dismissed 

this complaint. The Shaw and Cromartie plaintiffs merely 
sought to shop for a more favorable panel and to manipulate the 
federal court system to render meaningless the adverse result 

upholding the 1997 Plan in Shaw. This Court should reverse 

the district court and render unsuccessful plaintiffs’ tactical 

maneuvering, which, if condoned, would make federal di 

courts’ review of states’ districting decisions judgments without 
finality. 

    

  

A. The District Court In Shaw Entered a Final 

Judgment Holding the Revised District 12 
Constitutional. 

After holding District 12 unconstitutional in Shaw II, this 

Court remanded the case to the district court for an appropriate 

remedy. The Shaw plaintiffs then amended their complaint and 

added as plaintiffs Martin Cromartie, Thomas Chandler Muse 

and Glennes Dodge Weeks, all residents of District 1. J.S. 

  

“disregard the court's ultimate finding of intentional discrimination based on 
that inference as clearly erroneous.”).  



  

42 

283a. That same day, these three plaintiffs filed this separate 

action, represented by the same attorney who represented them 

in Shaw. With the consent of plaintiffs, all proceedings in this 

action were stayed pending completion of the Shaw litigation. 

The General Assembly enacted the 1997 Plan and submitted 

it to the Shaw district court for approval. That court allowed 

Cromartie, Muse, and the other Shaw plaintiffs to raise 
constitutional challenges to the plan,” but they did not make 

use of that opportunity. Instead, seeking to present their 
challenge to a panel that they perceived as more favorable, the 
plaintiffs asked the court to “not approve or otherwise rule on 

the validity” of the new plan, and to “dismiss this action 
without prejudice to the right of any person having standing to 
maintain a separate action attacking [its] constitutionality.” J.S. 

308a. The state defendants opposed this effort to preserve the 
challenges to the 1997 Plan and to present them in this lawsuit. 

Rejecting the plaintiffs’ request that it decline to rule on the 

merits of District 12, the district court in Shaw ordered the 1997 

Plan “APPROVED as having adequately remedied the specific 

constitutional violation respecting former congressional District 

12.” J.S. 312a. Plaintiffs filed no appeal from that order or the 
identically worded judgment filed three days later. Shaw v. 

Hunt, 92-202-CIV-5-BR, Judgment (E.D.N.C. September 15, 
1997). 

One month later, the district court dissolved the stay order 

in this case. On that same date, plaintiffs filed an amended 

complaint claiming that Districts 1 and 12 in the 1997 Plan, just 

approved by the district court in Shaw, were unconstitutional. 

The defendants argued that, under basic principles of claim 

  

5% The district court directed them to advise the court “whether they 

intend[ed] to claim that the [new] plan should not be approved by the court 
because it does not cure the constitutional defects in the former plan.” Shaw 
v. Hunt, CA No. 92-202-CIV-5-BR, Order (E.D.N.C. June 9, 1997). 

   



43 

preclusion, the Shaw ruling barred the challenge. The district 

court rejected this argument, stating summarily that the 

“decision of the Shaw three-judge panel was not preclusive of 
the instant cause of action, as the panel was not presented with 

a continuing challenge to the redistricting plan.” J.S. 2a-3a. 

B. The Doctrine of Claim Preclusion Barred Plaintiffs’ 

Successive Challenge to District 12. 

Under the doctrine of claim preclusion, “[a] final judgment 
on the merits of an action precludes the parties or their privies 

from relitigating issues that were or could have been raised in 
that action.” Federated Dep't Stores v. Moitie, 452 U.S. 394, 

398 (1981). See also Allen v. McCurry, 449 U.S. 90, 94 (1980) 
(both claim preclusion and issue preclusion “relieve parties of 

the cost and vexation of multiple lawsuits, conserve judicial 

resources, and, by preventing inconsistent decisions, encourage 
reliance on adjudication”); Comm 'r of Internal Rev. v. Sunnen, 

333 U.S. 591, 597 (1948) (citation omitted) (claim preclusion 
“rests upon considerations of economy of judicial time and 

public policy favoring the establishment of certainty in legal 
relations”). 

Plaintiffs’ claim was thus barred because the validity) 
District 12, first in the 1992 Plan and then in the 1997 Plan, was 

the heart of the Shaw case previously litigated to judgment. 

The court below rejected the claim preclusion argument on the 

theory that the Shaw court “was not presented with a continuing 

challenge to the redistricting plan.” J.S. 2a-3a. Presumably, it 

did so because the Shaw plaintiffs sought to avoid an 

unfavorable ruling by requesting that the Shaw court not rule on 

the validity of the 1997 Plan at all. J.S. 308a. But claim 

preclusion prevents relitigation not only of issues actually 

litigated in a prior action, but also of issues that could have 
been litigated by the plaintiffs. See Federated Dep't Stores, 
452 U.S. at 398; 18 Charles Alan Wright & Arthur R. Miller, 

Federal Practice & Procedure §§ 4406, 4407 (2d ed. 1987) 
(“Wright & Miller”).  



  

KA 

The Shaw court rightly concluded that it was obliged to rule 

on the validity of the 1997 Plan’s District 12, since it had been 

offered as a remedy for the constitutionally defective 1992 Plan. 

J.S. 319a. It therefore ruled explicitly that the 1997 Plan 

“adequately remedied the specific constitutional violation 
respecting former congressional District 12” identified in Shaw 

II. J.S. 312a. Though the court below may have disagreed with 

the judgment entered by the court in Shaw, that judgment had 
preclusive effect. See Federated Dep't Stores, 452 U.S. at 398 
(res judicata not affected “by the fact that the judgment may 

have been wrong” or by “erroneous conclusion” of court in first 

case). Under the doctrine of claim preclusion, the final 

judgment in Shaw extinguished any claim that the Shaw 

plaintiffs and their privies had to litigate the validity of 
District 12. 

Only two plaintiffs, J. H. Froelich, Jr. and R. O. Everett, 
were residents of District 12 with standing to challenge that 

district.>® Although neither was a plaintiff in Shaw, both are 

bound by the Shaw judgment. Their close associations with 

lead counsel Robinson Everett, their awareness of the case and 

consultation with counsel, and the tactical maneuvering that 
brought them into this litigation as part of an effort to avoid the 

adverse Shaw decision, all bring them into privity with the 

Shaw plaintiffs through the rule of “virtual representation.” See 
18 Wright & Miller, supra, § 4457. 

As this Court has noted, “the term ‘privity’ is now used to 

describe various relationships between litigants that would not 

have come within the traditional definition of that term.” 

Richards v. Jefferson County, 517 U.S. 793, 798 (1996). The 
general rule that a person must have been a party to a prior 

  

>! Plaintiff Ronald Linville also tried to challenge revised District 12, 
but he is not a resident of the district. J.S. 341a. Although the majority of 

the district court treated the issue as moot, see J.S. 30a n.10, the reasons 

Linville should have been dismissed were fully discussed by Judge 
Thomburg in his dissenting and concurring opinion. See J.S. 64a-67a. 

   



45 

proceeding to be bound by it has a recognized exception “when 

. . . a person, although not a party, has his interests adequately 

represented by someone with the same interests who is a party.” 

Id. (citation omitted). Lower federal courts have frequently 

recognized that, under appropriate circumstances, a person 
whose interests are adequately represented may be deemed to 

be privity with prior litigants through “virtual representation 

especially in cases involving broad issues of public law, rat) 
than more individualized grievances. See, e.g., NAACP, 
Minneapolis Branch v. Metro. Council, 125 F.3d 1171 (8th Cir. 

1997) (prior class action challenging segregated housing and 

related educational deficiencies bars subsequent action by 

school children who were not members of initial class), cert. 

denied, 525 U.S. 826 (1998); Tyus v. Schoemehl, 93 F.3d 449, 

456 (8th Cir. 1996) (action challenging city alderman districts 
on constitutional and Voting Rights Act grounds barred by prior 

suit for plaintiffs who participated in prior suit and others allied 

with them); NAACP v. Hunt, 891 F.2d 1555 (11th Cir. 1990) 
(action by state legislators challenging flying of confederate 

flag barred by prior judgment against different legislator raising 

similar claims); Jaffree v. Wallace, 837 F.2d 1461, 1467 (11th 

Cir. 1988) (plaintiff parents and their children precluded “@ 
pursuing first amendment claims against school system an 

state officials because of participation by father and some of the 
children in similar prior suit); Los Angeles Branch NAACP v. 

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

1984) (entire class of black schoolchildren barred from 

litigating segregation claims identical to those in prior class 
action on grounds that overlapping plaintiffs in prior suit 

adequately represented current class, including children who 
were not members of initial class); Petit v. City of Chicago, 766 

F. Supp. 607, 613 (N.D. Ill. 1991) (white police officers bound 

by prior suit brought by Department of Justice and intervening 

police officers challenging promotional examinations). 

Privity through virtual representation applies when parties 
to the earlier suit — in this case. counsel Rohinson Everett and  



  

46 

his co-plaintiffs in Shaw — are so closely aligned with the 

interests of the present parties as to be their virtual 

representatives. Tyus, 93 F.3d at 454. A necessary condition 
for preclusion by virtual representation is that there be an 

identity of interests such that the original litigants adequately 
represented the interests, or had the same incentive to pursue 

the interests, of the current plaintiffs. See NAACP, Minneapolis 

Branch, 125 F.3d at 1174; Petit, 766 F. Supp. at 611; Los 
Angeles Branch NAACP, 750 F.2d at 742-46. Here, lead 

counsel Robinson Everett, who was both a plaintiff and lead 
counsel in Shaw, had the same incentive to litigate the validity 

of District 12 in Shaw that he has pursued in this case as 

counsel through plaintiffs Froelich and Everett, his first cousin. 

Before the remedial proceedings in 1997, Everett had already 

devoted five years of litigation to the cause of having District 
12 deemed invalid; immediately after the remedial proceedings, 

he filed this suit to try his case again. There is no reason why 
the same interests and incentives would not have guided his 

strategy in the remedial proceedings themselves. 

When the necessary identity of interests exists, courts 

applying claim preclusion through virtual representation 
consider additional factors, including “participation in the first 

litigation, apparent consent to be bound, apparent tactical 

maneuvering, [and] close relationships between the parties and 

nonparties.”” Jaffree, 837 F.2d at 1467 (quoting 18 Wright & 
Miller, supra, § 4457 at 494-99). Those factors favor a finding 

of virtual representation in this case. 

Plaintiff Everett knew his cousin was litigating Shaw and 

joined the suit when his cousin “said that he needed to start 

over.” “He called me and said he needed a plaintiff in Rowan 

County.” J.S. 331a-34a. Plaintiff Froelich had been in business 

with both attorney Everett and his mother. Froelich knew about 

Shaw while it was pending, discussed it with his old friend, told 

Everett he was willing to be a plaintiff, and even filed a 

declaration in Shaw. J.S. 335a-37a; J.A. 672-678. Thus, these 

   



47 

plaintiffs were fully on notice of Shaw, followed it throughout, 

communicated with Shaw counsel, and became parties only 
when counsel decided he needed new plaintiffs.> 

Especially important to this analysis is the tactical 

maneuvering of the Cromartie-Shaw plaintiffs in their efforts to 
rejuvenate their challenge to the congressional districting plan. 

Significantly, Cromartie and Muse also were plaintiffs in . 4 
while it was on remand from this Court’s decision in Shawl. 

They were thus among the Shaw plaintiffs who urged the 

district court not to rule on the merits of the 1997 Plan, 

apparently for the sole purpose of pursuing the case in a 
different forum in hope of a more favorable result. 

These close affiliations and overlapping of plaintiffs and 
counsel along with the tactical maneuvering require the 

application of claim preclusion.” Otherwise, “it would allow 

various members of a coordinated group to bring separate 

lawsuits in the hope that one member of the group would 

eventually be successful, benefiting the entire group.” Tyus, 93 

F.3d at 457. See also Petit, 766 F. Supp. at 612-13; Louisiana 

  

21n Richards, the Court relied on the absence of these same | 

hold that nonparties to an initial suit were not precluded by the judgment in 

that case. See 517 U.S. at 802 (parties to two cases described as “mere 
strangers” to one another); id. at 805 (plaintiffs “received neither notice of, 

nor sufficient representation in,” the prior litigation). Decided on these 
very different facts, Richards is not in any way inconsistent with 

application of the “virtual representation” doctrine in this case. 

53 The mere fact that the same counsel represented the Shaw plaintiffs 

and represents the Cromartie plaintiffs is not, of course, controlling. See S. 
Cent. Bell Tel. Co. v. Alabama, 526 U.S. 160, 168 (1999). However, it is 

one thing for successive plaintiffs not claimed to be in privity to hire the 

same attorney in a matter in which he is experienced. It is a different 
matter altogether for the same attorney to be counsel to successive 

plaintiffs when the attorney also was a plaintiff in the first suit and solicits 

his cousin and business associate as plaintiffs in the second suit and when 
that attorney engages in tactical maneuvering to try to renew the case in a 

more promising posture. See Tyus, 93 F.3d at 459 (Henley, J., concurring).  



  

43 

Seafood Mgmt. v. Foster, 53 F. Supp. 2d 872, 884 (E.D. La. 

1999). If claim preclusion does not apply in a case like this, 

then attorney Everett or any similarly invested attorney will be 

able to bring the same suit over and over, recruiting new 

plaintiffs, until he prevails. Interested persons like plaintiffs 
Everett and Froelich will be able to await the results of the first, 

second, or even third case and then pursue the same claim 
again. 

Redistricting challenges are the type of public law claims 
that are particularly appropriate for claim preclusion based on 

privity through virtual representation. In this case, plaintiffs 
Froelich and Everett have not claimed they were denied the 

right to cast their individual votes. See Tyus, 93 F.3d at 457. 

Instead, they asserted they had been harmed as a result of their 

residence in the congressional district, a harm shared under this 

Court’s decisions with more than 550,000 other persons.>* See 
United States v. Hays, 515 U.S. 737, 745 (1995); see also Shaw 

11,517 U.S. at 904. If claim preclusion does not apply in a case 
like this, then plaintiffs in later suits may sit back and await the 
judgment in the first case, knowing they will benefit from a 

favorable judgment and having no incentive to intervene. See 

Petit, 766 F. Supp. at 613; Tyus, 93 F.3d at 456. To allow such 

successive suits would “discourage the principles and policies 

the doctrine of res judicata was designed to promote” — the 

principles of finality of litigation and limiting persons to a 

single “bite at the apple.” See Petit, 766 F. Supp. at 613. 

Because plaintiffs “raise an issue of public law” that 

otherwise would encourage “fence-sitting,” this is precisely the 

type of case for which claim preclusion by virtual 

representation is appropriate and, indeed, essential. See Tyus, 
93 F.3d at 457 (applying claim preclusion through virtual 
  

3 This Court noted a similar distinction for claim preclusion purposes 
between the type of private taxpayer suit it addressed in Richards and more 
generalized taxpayer actions for which claim preclusion would be more 
freely available. Richards, 517 U.S. at 803. 

   



49 

representation to vote dilution claims under Section 2 of the 

Voting Rights Act of 1965 and the United States Constitution). 

Thus, school desegregation claims by school children not part 

of the plaintiff class in a prior lawsuit were barred in part 

because, absent privity through virtual representation, “those 
claims would assume immortality.” Los Angeles Branch 

NAACP, 750 F.2d at 741. Particularly in public law suits sych 

as this, where the harms are more generalized and the roc 

plaintiffs number in the hundreds of thousands, groups of 
affiliated persons should not be allowed to bring successive 
lawsuits free of claim preclusion restrictions. The district 

court’s failure to recognize that claim preclusion barred 

plaintiffs’ District 12 challenge led to the court’s unwarranted 
intrusion into the State of North Carolina’s sovereign 
responsibility to determine its congressional districts and 

disrupted the electoral process repeatedly and unnecessarily. 

The district court’s decision requires reversal.” 

  

% Asa remedy for its conclusion that the 1997 Plan is unconstitutional, 

the district court ordered that the State adopt a new districting plan in time 

for the imminent 2000 election. This Court stayed that order, and it is now 

likely that the 2000 election will have been held before this Court issu 

decision in this case. If the Court affirms the judgment below, the c 

respectfully requests that the Court vacate the district court’s remedial 

order, and require only that the State adopt a new plan for the 2002 election. 
This Court has repeatedly allowed elections to proceed even under 

concededly invalid districting plans and required no new elections to be 
held when “equitable considerations” such as the disruption to the 

legislative process and the lack of ample time to enact a new plan require it. 
Reynolds v. Sims, 377 U.S. 533, 585 (1964). See Kilgarlin v. Hill, 386 U.S. 
120, 121 (1967); WMCA, Inc. v. Lomenzo, 377 U.S. 633, 655 (1964); 
Roman v. Sincock, 377 U.S. 695, 711-12 (1964); Lucas v. Forty-Fourth 

General Assembly, 377 U.S. 713, 739 (1964). Anticipating that, if the 

judgment below is affirmed after the 2000 election has been conducted, the 
plaintiffs are likely to seek an order from the district court setting aside the 

results of that election and requiring an interim congressional election, the 
State asks that the Court make clear that any relief accorded the plaintiffs as 
a result of an affirmance does not include requiring the State to hold an 

interim election for members of Congress prior to the 2002 election.  



  

50 

CONCLUSION 

For the reasons stated, this court should reverse the district 

court’s ruling and remand for entry of judgment for the State. 
defendants. 

Respectfully submitted, 

MICHAEL F. EASLEY 

North Carolina Attorney General 

Tiare B. Smiley* 

Special Deputy Attorney General 

Norma S. Harrell 

Special Deputy Attorney General 

Walter E. Dellinger 

O’Melveny & Myers LLP 

Brian D. Boyle 

O’Melveny & Myers LLP 

Crystal Nix Hines 

O’Melveny & Myers LLP 

Jonathan D. Hacker 

O’Melveny & Myers LLP 

September 8, 2000 * Counsel of Record 

   





  
  

 
 

  

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INDEX OF APPENDICES 

Precinct Registration Maps 

Forsyth County District 12 Precincts .....cooecoeenennnvvnnin. la 

Guilford County District 12 Precincts.........cceeeeveeennnne.... 2a 

Mecklenburg County District 12 Precincts ................. “ 

 



    

  

Forsyth County District 12 Precincts 

  

  

Legend     

  

County Boundary 

Precinct Boundary 

District Boundary 

District 12 

District 12 Precincts With 

Lower Democratic Regis- 

tration Than One Or More 

Adjacent Non-District 12 

Precincts 

  
  

  
    

      
N.C. General Assembly, 

  

        Information Systems Division 
    

 



  

2a 
  

Guilford County District 12 Precincts 

  
  

  

  

RAE 

      

  

  
  

  

  
  

Legend 

County Boundary 

Precinct Boundary 

District Boundary 

District 12 

District 12 Precincts With 

Lower Democratic Regis- 

tration Than One Or More 

Adjacent Non-District 12 

Precincts 

        
      N.C. General Assembly, 

Information Systems Division 

      
        

 



    

  

  

      

  

  

            

Legend 

    

County Boundary 

Precinct Boundary 

District Boundary 

   District 12 

   District 12 Precincts With 
Lower Democratic Regis- 
tration Than One Or More 
Adjacent Non-District 12 
Precincts 

           

  

N.C. General Assembly, 

        

    

  

   Information Systems Division