Appellees' Brief on the Merits

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ROT MAR 

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QUESTIONS PRESENTED 

1. Whether the District Court had a basis in circumstantial or 

direct evidence to find that the North Carolina General 

Assembly had subordinated traditional redistricting principles 
and created a Twelfth District that was predominantly 
motivated by race. 

2. Whether the District Court properly concluded that 
Appellants and Appellant-Intervenors had failed to raise any 

valid claim that the Twelfth District was narrowly tailored to 

fulfill a compelling governmental interest. 

3. Whether the District Court properly rejected Appellants’ 
unfounded defense of claim preclusion. 

4. Whether the District Court had discretion to enjoin the 

continuing use of an unconstitutional congressional district that 
perpetuated prior racial gerrymandering. 

 



  

ii 

TABLE OF CONTENTS 

QUESTIONS PRESENTED... ... cc. cis ca saine sos i 

TABLEOER CONTENTS... . co ctur snes vai nnnnseasi il 

TABLEOF AUTHORITIES... .... 5c csesciinnnanans iv 

COUNTERSTATEMENT OF THECASE ............. 1 

SUMMARY OF THE ARGUMENT REO PE 4 

ARGUMENRE ...  .  cv tics vasa snsn situs bas 9 

I. RACEPREDOMINATED OVER TRADITIONAL 
REDISTRICTING PRINCIPLES IN DISTRICT 12 

OF THE 1997 NORTH CAROLINA 

CONGRESSIONAL REDISTRICTING PLAN ..... 9 

A. The District Court correctly perceived its 

responsibilifyonyremand once vvn snes 0 

B. Circumstantial evidence supports the District 

Court’s finding that race predominated over 

traditional redistricting principles in the 
creation of the Twelfth District ............ 14 

C. Direct Evidence also supports the District 

Court’s finding that race predominated ...... 33 

D. The context of this case is relevant to the 

issues of predominantly race based motive 

andcredibility  ....0. 0 corso dino Pins 47 

   



iil 

II. NO COMPELLING GOVERNMENTAL 

INTEREST EXISTS FOR THE 1997 PLAN’S 

TWELFTHDISTRICT ..... osc svnrssan. ode, 50 

II. APPELLANTS’ DEFENSE OF CLAIM 

PRECLUSION LACKS MERIT ................ 53 

IV. THE DISTRICT COURT ACTED WELL WITHIN 

ITS EQUITABLE DISCRETION ............... 54 

CONCLUSION . ... confer su: vanes snnins siabnss 56 

 



  

iv 

TABLE OF AUTHORITIES 

Page(s) 

CASES: 

Abrams v. Johnson, 521 US. 74 (1997) ......... 5,16,42 

Anderson v. City of Bessemer, 470 U.S. 564 (1985) ..... 13 

Arlington Heights v. Metropolitan Housing Dev. Corp., 

BOUS2(AITT corer unnnssresinrsrnnsy 56 

Bish v. Were, SUTUSOSY (1006): <5 2b sis passim 

Commissioner s Duberstein, 363 U.S. 278 (1960) ...... 13 

Cromwell v. County of Sac., 94 U.S. 351 (1876) ........ 53 

Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 

(1993) ius svc sit enirmnsy srs Sn tinin miss iay sen ans 32 

FDIC v. Majalis, 15F.3d 1314 (5th Cir. 1994) ......... 51 

Federated Dept. Stores, Inc. v. Moite, 452 U.S. 394 

f10 hE TE ER EE hd 53 

Garza v. County of Los Angeles Bd. of Supervisors, 918 

F2d763 (OthCir. 1990) ........c..ccnvnnnnnnnn 45 

Hays v. Louisiana, 936 F. Supp. 360 (W.D. La. 1996) 

(three-judge court), appeal dismissed as moot, 

Louisiana v. Hays, 518 U.S. 1014 (1996) . 19, 20, 42, 43 

Hunt v. Cromartie, 526 U.S. 541 (1999) .......... passim 

Icicle Seafoods v. Worthington, 475 U.S. 709 (1986) .... 14 

   



Page(s) 

Jeffers v. Clinton, 756 F.Supp. 1195 (D. Ark. 1990) 

(three-judge court), af’d, 498 U. S. 1019 (1991)... 45 

Johnson v. Miller, 929 F.Supp. 1529 (S.D. Ga. 1996) 

(three-judgecourt) .........oovnnnnnninnnnnnn. 36 

Karcher v. Daggett, 466 U.S. 910 (1984) ............. 56 

Keyes v. School District No. 1, 413 U.S. 189 (1973). aise: 5 

Kelley v. Bennett, 96 F.Supp.2d 1301 (M.D. Ala. 2000) 

(three-judge court), appeal docketed, No. 00-132 

(US. July24,2000) .........covennnninnnnnnnn. 36 

Ketchum v. Byrne, 740 F.2d 1398 (7th Cir. 1984) ....... 45 

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

O97) i eerie ves asia 10, 17, 29, 36 

Lemon v. Kurtzman, 411 U.S. 192 (1973) ............. 56 

McQueeney v. Wilmington Trust Co., 770 F.2d 916 (3rd 

CIr 1985) ie sess tenes vmasnis’s st sn 0s 12,39 

Miller v. Johnson, 515U.S.900 (1995) . .......... passim 

Perkins v. Matthews, 400 U.S.379 (1971) ............ 56 

Reeves v. Sanderson Plumbing Products, Inc., ___ U.S. 

__,20S.Ct.2097(2000) ..........cnnnnnn 11,39 

Reynolds v. Sims, 377U.S.533 (1964) ............... 55 

Rybickiv. State Bd. Of Elections, 574 F.Supp. 1082 (N.D. 

Ill. 1982) (three-judge court) ................... 45  



  

vi 

Page(s) 

Shaw v. Hunt, 861 F. Supp. 408 (E.D.N.C. 1994), rev'd, 
Shaw vy. Hunt, 517 U.S. 899(1996) .............. 46 

Shaw v. Hunt, 517 U.S. 899 (1996) .............. passim 

Shaw v. Reno, 509 U.S. 630(1993) ............. passim 

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

JUGZE COME) + vvnuv venus sdns srs recnvinns veri 36 

Terrazas v. Clements, 581 F.Supp. 1329 (W.D.Tex. 1984) 

(area-Judge court)... .. cone asrn sansa snus 45 

Thornburg v. Gingles, 478 U.S. 306 (1986) ........... 52 

United States v. Hays, 515U.S. 737 (1995) ........... 54 

United States v. Yellow Cab Co., 338 U.S. 338 (1949) ... 11 

Vera v. Bush, 933 F.Supp. 1341 (S.D. Tex. 1996) (three- 

judge court), stay denied sub nom. Bentsen v. Vera, 

5180.8. 104801996)... .. cc vio rsmmnessson 9,55 

Vera v. Richards, 861 F.Supp. 1304 (S.D. Tex. 1995) 

(three-judge court), aff’d sub nom. Bushv. Vera, 517 

U.S. 952 (1996) iacsin sn. vc sin iiignaviesnn sano sa 44 

Wise v. Lipscomb, 437 U.S.535(1978) . .............. 10 

Wygant v. Jackson Bd. of Ed., 476 U.S. 267 (1986) .. 51,52 

   



vii 

Page(s) 

STATUTES: 

B2USC. 819731994) ...coirerinrs sd vninmaions 4,52 

N.C. Gen. Siat. § 163-2100) (1999). co cov ves evs ns 19 

NC. Gen. Stat. §163-111(1999) ....... ove ven vues 26 

SECONDARY AUTHORITIES: 

John Hart Ely, Standing to Challenge Pro-Minority 

Gerrymandering, 111 HARV. L. REV. 576 (1997) ... 28 

Richard H. Pildes & Richard G. Niemi, Expressive 

Harms, “Bizarre Districts,” and Voting Rights: 

Evaluating Election-District Appearances After 

Shaw v. Reno, 92 MicH. L. REV. 483 (1993) ...... 16 

 



  
  

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COUNTERSTATEMENT OF THE CASE 

After a legal struggle spanning more than four years and 

involving two appeals, the Court finally laid to rest the bizarre 

Twelfth District created by North Carolina’s 1992 redistricting 

plan. See Shaw v. Hunt, 517 U.S. 899 (1996). Three weeks 

later, Martin Cromartie and two other registered voters in the 

First Congressional District filed suit to have that District 

declared unconstitutional." Judge Malcolm J. Howard, to 

whom Cromartie had been assigned, entered a stay order by 

consent to await the outcome of remedial proceedings in the 

Shaw litigation. Thereafter, by further consent, he extended the 

stay from time to time over several months. 

On April 1, 1997, the General Assembly submitted a 

new redistricting plan to the Shaw district court for review. 

Under this plan, none of the Shaw plaintiffs, all of whom lived 

in Durham, had standing to challenge the new Twelfth District 

because it no longer extended to Durham County. On 

September 12, 1997, that court filed a final order approving use 

of the 1997 redistricting plan.’ 

  

"The same day, July 3, 1996, a separate and unrelated group of 

plaintiffs led by Jack Daly filed a complaint in Daly v. High in order to 

challenge not only North Carolina’s Congressional Redistricting Plan, but 

also its legislative apportionment plan. No. 5: 97-CV-750-BO 

(E.D.N.C.). 

Emphasizing the restricted nature of its action, the district court 

stated: 

“We close by noting the limited basis of the approval of the 

plan that we are empowered to give in the context of this 

litigation. It is limited by the dimensions of this civil action as 

that is defined by the parties and the claim properly before us. 

Here, that means that we only approve the plan as an adequate  



  

2 

On October 10, 1997, after the termination of the Shaw 

litigation, the Cromartie plaintiffs filed an “Amended 

Complaint and Motion for Preliminary and Permanent 

Injunction.” This amended complaint included as plaintiffs not 

only the original plaintiffs from the First District, but also other 

plaintiffs registered as voters in the new Twelfth District. On 

October 14, 1997, the State moved to have the Shaw panel 

consolidate and consider Cromartie and Daly v. High. The 

Shaw panel denied the State’s motion on October 16, 1997, Jt. 

App. at 791-804, and the State made no appeal. 

On January 15, 1998, the Cromartie case was 

reassigned from Judge Howard to a three-judge panel 

comprised of Circuit Judge Samuel J. Ervin III, Judge Terrence 

W. Boyle and Judge Richard L. Voorhees. This panel already 

had Daly before it. Jt. App. at 511. On January 30, 1998, the 

Cromartie plaintiffs, renewing the prayer for relief contained in 

their amended complaint, moved for a preliminary injunction. 

On February 5, 1998, they moved for summary judgment. On 

March 3, 1998, defendants responded with a cross-motion for 

summary judgment. The district court granted plaintiffs’ 

motions for summary judgment and for a preliminary and 

permanent injunction on April 3, 1998, and the Appellants 

unsuccessfully requested a stay from the district court and this 

Court. 
The 1998 congressional elections proceeded with a less 

racially constructed Twelfth District under the new plan 

adopted by the North Carolina General Assembly. Instead of 

  

remedy for the specific violation of the individual equal 
protection rights of those plaintiffs who successfully challenged 
the legislature’s creation of former District 12. Our approval 

thus does not - cannot - run beyond the plan’s remedial 

adequacy with respect to those parties and the equal protection 

violation found as to former District 12.” 
Appellants’ J.S. App. at 320a. 

   



3 

the 47% African-American population in the 1997 Plan, the 

Twelfth District in the 1998 Plan had a 35% African-American 

population. Moreover, unlike the 1997 Plan in which the 

Twelfth District divided all six of its counties and split all four 

of its major cities as well as various towns, the Twelfth District 

of the 1998 Plan contained five counties - one of which it left 

intact - and split only two major cities, Charlotte and Winston- 

Salem. 
Meanwhile, the State pressed forward with its appeal as 

to the 1997 plan, whose use had been prohibited in any future 

election.’ After the Court noted probable jurisdiction of the 

appeal by Appellants and Appellant-Intervenors, oral argument 

was heard on January 20, 1999. The Court’s opinion, handed 

down on May 17, 1999, discussed the evidence and held that 

the State had raised an issue of fact as to whether a racial 

motive predominated in drawing the Twelfth District. 

Accordingly, the Court reversed the summary judgment 

previously entered for Appellants and remanded the case for 

trial. See Hunt v. Cromartie, 526 U.S. 541, 553-554 (1999). 
In preparation for trial, the parties engaged in extensive 

discovery and entered into a seventy-five-page pretrial order 

containing eighty-two stipulations, presenting more than three 

hundred fifty exhibits (including more than 225 maps), and 

more than 1100 pages of deposition designations to be used in 
lieu of, or to supplement, the testimony in court. After the 

untimely death of Judge Ervin, District Judge Lacy H. 

Thomburg was assigned to the panel as Circuit Judge 

Designate. He later presided at the trial, which took place from 

November 29, 1999, until December 1, 1999, and in which the 

  

3The legislation enacting the 1998 Plan contained a provision 

that North Carolina would revert to the 1997 Plan if this Court rendered a 
favorable decision on the State’s appeal of the summary judgment. See 
Hunt v. Cromartie, 526 U.S. 541, 545 n.1 (1999).  



  

4 

plaintiffs called eight witnesses to testify and the defendants 

called four. 
On March 7, 2000, the district court delivered its 

opinion holding that when the General Assembly created the 

1997 Plan’s First and Twelfth Districts, race had predominated 

over traditional redistricting principles. The district court also 

found ‘that “no evidence of a compelling state interest in 

utilizing race to create the new 12" District has been 

presented.” Appellants’ J.S. App. at 29a. On the other hand, 

the district court decided that the First District survived strict 

scrutiny because it fulfilled the State’s compelling interest in 

avoiding possible liability under Section 2 of the Voting Rights 

Act. See 42 U.S.C. § 1973. 

Appellants filed notice of appeal on March 10, 2000, 

and also requested a stay from the three-judge panel. The 

district court denied this request on March 13, 2000. 

Appellants’ application to this Court for a stay was granted on 

March 16, 2000. The Court noted probable jurisdiction on June 

26, 2000, and scheduled briefings on the merits. 

SUMMARY OF THE ARGUMENT 
In reversing the summary judgment rendered for 

plaintiffs, the Court concluded that the defendants had raised an 

issue of fact - whether the General Assembly’s predominant 

motive was racial. Therefore, the Court remanded the case 

with the comment that “the District Court is more familiar with 

the evidence than this Court, and is likewise better suited to 

assess the General Assembly’s motivations.” Hunt v. 

Cromartie, 526 U.S. 541, 553-554 (1999). 
Upon remand, the district court performed its assigned 

duty to determine the legislature’s predominant motive in 

drawing the 1997 Plan. While acknowledging that the court 

should not interfere with the legislature’s discretion, 

Appellants’ Jt. App. at 21a, District Judge Boyle’s opinion 

    

   



  

5 

emphasizes that federal courts must enforce the right to equal 

protection and other constitutional guarantees. Id. at 22a n.7. 

While the district court placed the burden of proof on the 

plaintiffs by a preponderance of the evidence, it correctly 

recognized that this burden could be satisfied by either 

circumstantial evidence or direct evidence. Cf. Miller v. 

Johnson, 515 U.S. 900, 916 (1995). The district court declined 

to create any presumption against defendants, despite the 

unconstitutionality of two districts in the predecessor 1992 

Plan.’ 
"The district court observed the witnesses and evaluated 

their credibility. For example, it properly deemed “not 

credible” an explanation offered by Senator Roy Cooper, the 

chairman of the Senate Redistricting Committee when the 1997 

and 1998 plans were passed. Appellants’ J.S. App. at 27a. 

Contradictions in Cooper’s various statements amply justified 

this evaluation. 
Because the Court usually does not review lower court 

factual determinations, Appellants and Appellant-Intervenors 

have sought unsuccessfully to manufacture issues of law for 

review. Thus, they have minimized the irregularity and 

bizarreness of the “new” Twelfth District and its significant 

differences from other Congressional districts in the 1997 North 

Carolina redistricting plan, as well as its differences from such 

  

An unconstitutional district is an “improper departure point” 

to follow when drawing a new district. Abrams v. Johnson, 521 U.S. 

74,90 (1997). By disregarding the circumstance that the racially 

gerrymandered Twelfth District of the 1992 Plan was the “core” for the 

corresponding district of the 1997 Plan, the district court may have 

granted unwarranted discretion to the General Assembly. Cf Keyes v. 

School District No. 1,413 U.S. 189, 208 (1973) (the Court shifting the 

burden of proof to the government to show that its past segregative acts 

did not create or contribute to the current segregated condition of the 

core city schools).  



  

6 

districts in other states.’ Likewise, Appellants disregard the 

splitting of political subdivisions along racial lines and describe 

the Twelfth District in misleading terms. 
Geographic and demographic data concerning the 

Twelfth District require little analysis to sustain the finding that 

the legislature’s predominant motive was race-based. 

Moreover, the comprehensive analysis of that data by an 

experienced and widely recognized expert on redistricting 

reinforces that finding by the court below. The majority 

properly accepted Dr. Weber’s testimony and gave no weight 

to that of Dr. Peterson, who had never testified before in a 

redistricting case, whose methodology had never been used by 

others, and whose conclusions appear on their face to be 

unsupported and of little relevance. In their criticism of the 

district court’s use of registration data, Appellants ignore the 

relationship of the registration data to the nomination of 

candidates in the primaries. Because of that relationship, there 

is an incentive to “pack” African-Americans into an already 

safe Democratic district in order to assure that the nominee will 

be black. This occurred with the Twelfth District. 

Direct evidence supplements the circumstantial 

evidence presented at trial. The post hoc affidavits by Senator 

Cooper and Representative McMahan, their testimony at trial 

considered in the light of their cross-examination, and their 

statements in the legislative record revealed a predominant race 

  

SFor example, unlike other districts in North Carolina the 

Twelfth District splits all of its counties, and its creation required the 

relocation of a much higher percentage of whites than African- 

Americans. Among congressional districts in the United States, North 

Carolina’s Twelfth District ranks in the bottom 1% in compactness. 

    

 



  

7 

based motive.® Likewise, the disparity between certain 

announced goals of the redistricting plan and the Twelfth 

District’s actual features reflects the racial motive. 

The plaintiffs offered sworn testimony by three 

disinterested legislators - Senator Horton, Speaker pro tem. 

Wood, and Representative Weatherly - that the General 

Assembly’s motive had been predominantly racial. Their 

testimony is augmented by contemporaneous statements in the 

legislative record by Representative Michaux and Senator 

Blust, which support an inference as to the racial motive 

involved. Finally, testimony by plaintiffs’ witnesses Neil 

Williams, R.O. Everett, and Jake Froelich also demonstrated 

how the counties of that Twelfth District had been split along 

racial lines. 

Despite every effort by Appellants to minimize its 

importance, the E-mail sent on February 10, 1997 from Gerry 

Cohen to Senators Roy Cooper and Leslie Winner is a 

“smoking gun” which destroys their claims as to motive. See 
Jt. App. at 369. Gerry Cohen was the person who in 1991, 

1992, 1997, and 1998 served as the primary draftsman at the 

redistricting computer.” Senator Leslie Winner worked closely 

with Cooper and Cohen to create the 1997 Plan. The E-mail 

reported Cohen’s transfer of the “Greensboro Black 

community” into the Twelfth District. Jt. App. at 369. The 

language used in that E-mail makes clear that the predominant 

legislative motive for this transfer was racial and that pursuant 

to this motive a “significant number” of blacks were transferred 

  

"n cc 

SThese statements discussed “racial fairness,” “the core," “racial 

balance,” “functional compactness,” and “triggering the test” (of Shaw if 

the district was more than 50% minority). 

Surprisingly, Senator Cooper could not remember receiving this 
E-mail, see Jt. App. at 216, although it arrived at a crucial moment and 
involved a major decision on his part.  



    

8 

into the Twelfth District and a “significant number” of whites 

were transferred out of the District.® 
Although the majority in the district court made no 

reference to the 1998 Plan, the shape of the Twelfth District in 

that plan also confirms the predominant racial motive inthe 

1997 Plan. It demonstrates that a more compact, less racially 

gerrymandered Twelfth District could have been formed readily 

in 1997 and that this district would have been very safe for the 

Democratic candidate. However, the General Assembly 

rejected any such alternative and decided to include the 

“Greensboro Black community” in the Twelfth District.’ 

In view of the overwhelming weight of the evidence 

proving their predominant racial motive, Appellants and their 

allies raise some desperate defenses. First, they seek to argue 

claim preclusion even though the decision rendered by the 

Shaw panel in 1997 clearly intended to forestall any such | 

argument, and all of the requirements for claim preclusion are 

lacking. Second, although neither they nor the Appellants 

raised the issue of strict scrutiny at trial, nor did they argue how 

  

  

8The E-mail refers to moving 60,000 persons out, and a 

comparison of data from the two plans involved shows that those moved 
out were mostly white. This number is “significant” within the meaning 

of Miller v. Johnson. 515 U.S. 900, 916 (1995). The reference to 

percentages of African-Americans in the E-mail is very consistent with 
many statements in the record which led the district court to find that 

the legislators had a precise racial target for the Twelfth District of just 
under 50% African-American population - a target chosen because of 

their mistaken belief that thereby they could escape the restrictions of 
Shaw v. Reno. 509 U.S. 630 (1993). 

Likewise, when the 1997 Plan was first held unconstitutional by 
the district court and a less gerrymandered replacement plan was enacted, 
the General Assembly provided for reinstatement of the 1997 Plan. See 

Hunt v. Cromartie, 526 U.S. 541, 545 n.1 (1999). 

 



  

9 

the 1997 Plan’s Twelfth District satisfied the strict scrutiny test, 

Appellant-Intervenors now press this claim for the first time. 

Finally, Appellant-Intervenors seem to contend that as early as 

March 2000, the district court was not free to enjoin use of a 
racially gerrymandered district which it found violated the 

Fourteenth Amendment. This contention is inconsistent with 

rulings in other racial gerrymander cases, such as Vera v. Bush, 

933 F.Supp. 1341 (S.D. Tex. 1996)(three-judge court), stay 

denied sub nom. Bentsen v. Vera, 518 U.S. 1048 (1996), and 

also with the precedent established in this litigation. 

ARGUMENT 

I. RACE PREDOMINATED OVER TRADITIONAL 

DISTRICTING PRINCIPLES IN THE TWELFTH 

DISTRICT OF THE 1997 NORTH CAROLINA 

CONGRESSIONAL REDISTRICTING PLAN. 

A. The District Court Correctly Perceived Its 

Responsibility on Remand. 
In 1999, the Court remanded this case for a 

determination of the factual issue of predominant motive as to 

the formation of the Twelfth District of the 1997 North 

Carolina redistricting plan. See Hunt v. Cromartie, 526 U.S. 

541 (1999). In her opening statement at trial, Appellants’ lead 

counsel made clear their position that “[iJn District 12 we 

contend that race did not predominate.” Jt. App. at 23. 

According to her, the State’s defense of the Twelfth District 

was “purely a factual matter.” Id. Appellees’ counsel 

displayed no reluctance to assume the full burden of proof of 

establishing the predominance of race by the preponderance of  



  

10 

the evidence.’ 
After the trial, the district court found that the Twelfth 

District subordinated traditional districting principles to race. 

Appellants’ J.S. App. at 28a-29a. In so finding, the district 

court recognized the principle that “electoral districting is a 

most delicate task,” id. at 20a (quoting Miller v. Johnson, 515 

U.S. 900, 905 (1995)), and stated that it was “cognizant of the 

principle that ‘redistricting and reapportioning legislative 

bodies is a legislative task which the federal courts should make 

every effort not to preempt.” Id at 21a (quoting Wise v. 

Lipscomb, 437 U.S. 535, 539 (1978)). Likewise, the district 

court recognized that its power “is limited except to the extent 

that the plan itself runs afoul of federal law.” Id at 22a 

(quoting Lawyer v. Department of Justice, 521 U.S. 567, 777 

(1997). Accordingly, in its judgment, the district court 

expressly refused to exceed its remedial powers and noted that 

the General Assembly could “consider traditional districting 

criteria, such as incumbency considerations, to the extent 

consistent with curing the constitutional defects.” Appellants’ 

J.S. App. at 29a-30a. re 

Contrary to the representations of Appellant-Intervenors 

in their brief, see Appellant-Intervenors’ Brief at 26, the district 

court also took the view that “[a] comparison of the 

[unconstitutional] 1992 District 12 and the present District is of 

  

10 He submitted his view that, in light of the ruling in Shaw that 
the previous Twelfth District was unconstitutional, the defendants had the 
burden of showing that the earlier taint had been removed, but 

emphasized that plaintiffs did not rely on this argument because of the 

ample evidence they were offering of the predominant racial motive. Tr. 

at 20-21. 

  

   



  

  

11 

limited value here.”’’ Appellants’ J.S. App. at 24a. Thus, at 
every step the district court put the burden on Appellees to 
prove by either circumstantial or direct evidence “that race was 

the predominant factor motivating the legislature’s decision to 

place a significant number of voters within or without a 
particular district.” Id. at 20a (quoting Miller, 515 U.S. at 916). 

The history of the case - including the statements by 

Appellants’ counsel at the beginning of trial - makes clear that 

the issues raised by Appellants were solely of fact and required 

weighing credibility. “Findings as to the design, motive, and 

intent with which men act” are peculiarly factual issues. See 

United States v. Yellow Cab Co., 338 U.S. 338, 341 (1949)." 

  

''Such a comparison would seem quite relevant for the purpose 
of determining whether the unconstitutional taint of the 1992 version of 
the Twelfth District had been removed. 

*1In an attempt to increase the plaintiffs’ burden of establishing 
predominant motive, Appellants appear to contend that Appellees were 

required to show not merely that a racial motive predominated, but also 
that the proffered motive of incumbency protection was pretextual. (See 
Appellants’ Brief at 14-16. ) Appellees would thus be required to prove 
that race was the only motive and not merely the predominant motive. 

This contention is incorrectly derived from some employment 

discrimination cases and is contrary to the Court’s precedents on racial 
predominance. See Shaw v. Hunt, 517 U.S. 899, 907 n.3 (1996) (stating 
that dissent incorrectly read Miller as requiring that proffered race neutral 
explanations be shown to be pretextual). 

Furthermore, the court below as factfinder found that the 

Appellants’ key witnesses were “not credible” and “not reliable.” This 
circumstance suffices under the employment discrimination cases to 
support the inference in this case that the Appellants had a predominant 
racial motive that they were seeking to conceal. “In appropriate 
circumstances, the trier of fact can reasonably infer from the falsity of the 
explanation that the employer is dissembling to cover up a discriminatory 

purpose.” Reeves v. Sanderson Plumbing Products, Inc., ___ US. __, 
120 S.Ct. 2097, 2108 (2000) (citations omitted). “ Such an inference is  



  

12 

Indeed, on the prior appeal, the Court emphasized that the 

district court was charged with determining whether a racial 

motive predominated. “[W]e are fully aware that the District 

Court is more familiar with the evidence than this Court, and is 

likewise better suited to assess the General Assembly’s 

motivations.” Hunt v. Cromartie, 526 U.S. 541, 553,554 

(1999). 
Ignoring the district court’s clear statements to the 

contrary, Appellants ask in their first Question Presented 

whether a federal court may strike down a state’s redistricting 

plan “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 districting criteria were subordinated.” 

Appellants’ Briefati. Appellants maintain without foundation 

that the district court failed to follow the law it cited, but 

instead, relied solely on evidence showing the mere awareness 

of race, see, e.g., Appellants’ Brief at 37-38, or alternatively, 

that race was only a motivating factor and not the predominant 
motive for creating District 12. See id. at 18 n.21. 

However, while Appellants ask this Court for a 

“rigorous review of the record and decision below,” Appellants’ 

Brief at 16, their own presentation and review of the evidence 

actually before the district court is far less than “rigorous.” 

Instead, Appellants systematically disregard, mischaracterize, 

and minimize the extensive evidence in the record revealing the 
General Assembly’s predominant racial motive. Similarly, 

Appellant-Intervenors and the Solicitor General take misleading 

  

consistent with the general principle of evidence law that the factfinder is 
entitled to consider a party’s dishonesty about a material fact as 

‘affirmative evidence of guilt.” Id. See also McQueeney v. Wilmington 
Trust Co.,770 F.2d 916, 921 (3rd Cir. 1985). 

  

   



  

  

  

13 

approaches to the evidence of racial motivation." 

Contrary to the confusion professed by Appellants as to 

the standard of review, Appellants’ Brief at 18 n.21, the district 

court’s finding of racial predominance is reviewed under the 

“clearly erroneous” standard. See Miller v. Johnson, 515 U.S. 

900, 917 (1995). In light of the Court’s observation on a far 

less developed record in Hunt v. Cromartie that “[r]easonable 

inferences from the undisputed facts can be drawn in favor of 

a racial motivation finding or in favor of a political motivation 

finding,” 526 U.S. 541, 552 (1999), it is hard to see how the 

district court was “clearly erroneous” in finding the 

predominance of race from the vast amount of evidence before 

it at trial and with the opportunity to observe the witnesses." 

  

For example, neither mentions the crucial factual finding as to 

the State’s racial target of just under 50% in the formation of the 1997 

Plan’s Twelfth District. If the United States will not discuss the actual 
findings of fact that were made by the court below, it is hardly in a 

position to criticize that court for being “so sparse and conclusory as to 

give no revelation of what the District Court’s concept of the determining 
facts and legal standard may be.” U.S. Brief at 23 n.9 (quoting 

Commissioner v. Duberstein, 363 U.S. 278, 292 (1960)). Moreover, the 

Solicitor General mischaracterizes the cases it cites as standing for the 
proposition that “the district court’s failure to exercise such care is itself 
grounds for reversal.” Id. In fact, under those cases cited such failure is 
a ground for remand, not reversal. In this case, the district court’s 

discussion of the evidence - in both majority and dissenting opinions - 
supplies the Court an adequate basis for deciding that the court below did 
not commit clear error in its finding of predominant racial motive. 

“Under the clearly erroneous standard, “[w]here there are two 

permissible views of the evidence, the factfinder’s choice between them 
cannot be clearly erroneous.” Anderson v. City of Bessemer, 470 U.S. 
564, 574 (1985) (citations omitted). “This is so even when the district 

court’s findings do not rest on credibility determinations, but are based  



  

14 

In the case at bar, the district court correctly determined 

the issue this Court directed it to decide. Every racial 

gerrymandering case has a unique mix of facts and 

circumstances. Accordingly, Appellants’ suggestion that the 

evidence in this case must be the same as that found in previous 

cases, Appellants’ Brief at 18-21, is at odds with Miller v. 

Johnson. 515 U.S. 900, 915 (1995) (stating that “[t]he 

plaintiff’s burden is to show, either through circumstantial 

evidence of a district’s shape and demographics or more direct 

evidence going to legislative purpose, that race was the 

predominant factor” and that “parties alleging that a State has 

assigned voters on the basis of race are neither confined in their 

proof to evidence regarding the district’s geometry and makeup 

nor required to make a threshold showing of bizarreness™). In 

this case, strong circumstantial and direct evidence in the record 

supports - indeed, compels - the finding of racial predominance. 

B. Circumstantial evidence supports the District Court’s 

finding that race predominated over traditional 

redistricting principles in the creation of the Twelfth 

District. 

1. Traditional redistricting principles were subordinated 

to race. 

In Miller, the Court stated that to show race 

  

instead on physical or documentary evidence or inferences from other 
facts.” Id. Nor can Appellants escape the force of the clear error 

standard by raising the specter of “mixed questions of law and fact.” 

Appellants’ J.S. Reply at 4. In mixed questions of law and fact, the 

actual historical facts necessary to a proper determination of the legal 

question are to be reviewed under the clear error standard. See Icicle 

Seafoods v. Worthington, 475 U.S. 709, 714 (1986). Thus, the district 
court’s key preliminary findings are still subject to the clear error 

standard. 

    

  
 



  
  

15 

predominated in the construction of a district, “plaintiff[s] must 

prove that the legislature subordinated traditional race-neutral 

districting principles, including, but not limited to, 
compactness, contiguity, and respect for political subdivisions 

or communities defined by actual shared interests, to racial 

considerations.” 515 U.S. at 916. The indisputable 

circumstantial evidence presented at trial shows that District 12 

is one of the least compact congressional districts in the nation 

and that it is only one precinct wide in numerous parts of the 

district as it snakes between the predominately African- 

American areas. Appellees also proved at trial that District 12 

utterly disregards political subdivisions and communities of 

interest as it aggregates African-American voters. In addition 

to racially dividing all six of its counties, the district also 

divides nine of its thirteen cities and towns, including the four 

largest, by race. It also combines dispersed African-American 

sections from different metropolitan areas that had not been 

together in a single congressional district in the two hundred 

years prior to the 1992 plan held unconstitutional in Shaw v. 

Hunt. 
The African-American population in North Carolina is 

approximately 22% of the total population and is “relatively 

dispersed.” Shaw v. Reno, 509 U.S. 630, 634 (1993). For 
example, the percentage of the African-Americans in the six 

counties split by the Twelfth District is 23.6%. Of these six 

counties, Guilford County has the highest percentage of 

African-Americans at 26.4%. See Jt. App. at 485. On the other 

hand, the Twelfth District’s total African-American population 

is 46.67%. Because of the scattered residence of black persons 

across the Piedmont, this percentage can only be achieved by 

disregarding traditional North Carolina redistricting principles 
of compactness, and of keeping cities and counties whole. 

Thus, the “new” Twelfth District is “in many respects . . . almost 

the geographical monstrosity” that was its unconstitutional  



  

16 

predecessor. Abrams v. Johnson, 521 U.S. 74, 88 (1997) 

(rejecting the use of a district with features like those of a 

district previously adjudicated to be unconstitutional)’ It 
subordinates traditional, race-neutral districting principles, and 

it subordinates them primarily to race. 

a. The Twelfth District of the 1997 Plan ranks nationally 

in the bottom 1% of the nation’s districts for compactness. 

The Twelfth District of the 1997 plan is extremely 

noncompact - whether the test used is visual inspection or a 

mathematical formula. It remains in the bottom five 

congressional districts in the nation, ranking either 432 or 433 
out of 435 in “perimeter compactness” and 430 or 431 in 

“dispersion compactness.” Jt. App. at 107-08. The district 

court found that the Twelfth District’s dispersion score of .109 

and its perimeter score of .041 were both below the “low” 

compactness measures articulated in Richard H. Pildes & 

Richard G. Niemi, Expressive Harms, “Bizarre Districts,” and 

Voting Rights: Evaluating Election-District Appearances After 

  

  

  

15 Appellants originally contended that they had cured the 

constitutional defects in the former plan by emphasizing the following 
factors in locating and shaping the new districts: (1) avoidance of the 
division of counties and precincts; (2) avoidance of long narrow corridors 

connecting concentrations of minority citizens; (3) geographic 
compactness; (4) functional compactness (grouping together citizens of 
like interests and needs); and (5) ease of communication among voters 

and their representatives. Jt. App. at 382; Appellants’ J.S. App. at 83a. 

As is next discussed, the 1997 Twelfth District does not conform to any of 

these factors. The departure from Appellants’ own stated criteria implies 
that they were spurious and justifies an inference of a predominantly race- 
based motive. Now, however, to fit better to their current litigation 

posture, Appellants have changed their list of factors allegedly employed 
by the General Assembly. See Appellants’ Brief at 4. Appellant- 

Intervenors, however, are still citing the original list. Appellant- 

Intervenors’ Brief at 9-10. 

    

  

 



  

  

17 

Shaw v. Reno, 92 MICH. L. REV. 483, 571-573, tbl.6 (1993). 

Appellants’ J.S. App. at 16a. Cf. Bush v. Vera, 517 U.S. 952, 
960 (1996) (O’Connor, J., plurality opinion) (finding this article 

to be “an instructive study”). The Twelfth District is 
dramatically less compact than the other districts in the North 

Carolina 1997 Plan. Furthermore, as the district court found, 

the Twelfth District was less compact than districts in other 

states that had previously been held unconstitutional. 

Appellants’ J.S. App. at 26a." 

  

16 Comparisons to other judicially invalidated districts, in states 

with different histories, population densities, local government units, and 

geographical features are necessarily limited in value. Cf. Appellants’ 
Brief at 18-21. Comparisons to districts never challenged under Shaw 
theories are even less valuable. Cf. ACLU Brief at 16-17 (citing districts 
which are more compact and more regionally-based, most of which are 

located in a single metropolitan area, and composed of whole counties). 

Appellants err in suggesting that District 11 in the court-ordered 
remedial plan for Georgia bears similarity to the 1997 version of District 

12. (Appellants’ Brief at 36 n.45; See also ACLU Brief at 15.) First, the 

Georgia district is comprised not of “parts of 13 counties” but of 12 

entire, intact counties and only one split county. Second, it does not split 

small cities or large ones, either by race or by partisanship. Instead, itis a 

much more compact and rational district. See App. at la. In contrast, the 

North Carolina district not only fractures all of its cities and counties 

along racial lines, it does not even consistently follow I-85, which is the 
supposed similarity between the districts. 

As for Lawyer v. Department of Justice, 521 U.S. 567 (1997), 
that case addressed a low income district included in a single 
metropolitan area, rather than a district which linked the African- 
American sections of a string of different cities. Furthermore, that state 

senatorial district was not constructed so that only an African-American 

would be elected, and it did not stand out as significantly more distorted 

than others in Florida, especially in view of Florida’s irregular coastline. 

The Twelfth District of the 1997 Plan is significantly less compact than 
the other districts and is not in a single metropolitan area. Also, Lawyer 

did not involve a full trial, but rather a fairness hearing which “produced 

but two dissenters,” who “neither presented relevant legal evidence nor  



  

18 

When the district’s bizarre shape is combined with its 

demographics, the State’s race-based purpose is revealed in the 

district’s twists and turns as it narrows to the width of a single 

precinct at several points to avoid including white voters as it 

connects the dispersed African-American populations of 

Charlotte, Winston-Salem, Greensboro and the smaller towns 
in between. As the district court found, almost 75% of the 

total population in the Twelfth District came from mostly 

African-American portions of the three urban counties at the 

ends of the district. The parts of the three rural counties have 

“narrow corridors which pick up as many African-Americans 

as needed for the district to reach its ideal size.” Appellants’ 

J.S. App. at 12a; see also Jt. App. at 483. As the district court 

also found, “[t]he only clear thread woven throughout the 

districting process is that the border of the Twelfth District 

meanders to include nearly all the precincts with African- 

American population proportions of over forty percent which 

lie between Charlotte and Greensboro, inclusive.” Appellants’ 

J.S. App. at 25a. This is starkly depicted in a map of the 

region. Jt. App. at 483. As discussed below in connection with 

the division of cities and towns, the shape of the district more 

precisely correlates with the race of the district’s voters than 
with their politics. 

Finally, the 1997 Plan’s Twelfth District can not be 

described as “functionally compact” unless the term is 

understood to mean that it links together concentrations of 

African-Americans. Significantly, in recent years the term has 

been used in just that way to seek to evade criticism that 

various racially gerrymandered districts lacked compactness. 

In fact, a witness proffered by Appellant-Intervenors in this 

case testified that the 1992 Twelfth District is more compact in 

the sense of “functional compactness” than the 1997 Twelfth 

  

offered germane legal argument.” Id. at 575 (citations omitted). 

    

  

  

 



  

    

19 

the sense of “functional compactness” than the 1997 Twelfth 

District, and the 1997 Twelfth District in turn is more compact 

than the 1998 Twelfth District. Jt. App. at 580. Cf. Jt. App. at 
500-502. Similarly, Gerry Cohen, the draftsman of the 1992 

and the 1997 Plans, testified in the Shaw trial that the racially 

gerrymandered First and Twelfth Districts were among the most 

compact in the 1992 Plan. Jt. App. at 812. Obviously, 

“functional compactness” is equated here with race. Appellees 

submit that the term “functional compactness” should be 

unequivocally rejected by the Court as a substitute for 

geographic compactness in Shaw cases." 

b. The Twelfth District of the 1997 Plan severely 

disrespects political subdivisions. 

The Twelfth District is the only district in the 1997 plan 

which splits all of its counties, and it does so along racial 

lines." This alone is a sharp contrast to past redistricting 

  

  

17 Another example of reversing the meaning of terms is provided 
in the Amicus Brief of the ACLU which claims that the Twelfth District 
is now the most “integrated” in the United States because its percentage 
of blacks and whites is now nearly equal. ACLU Brief at 2, 23. 

Following this logic, an eight room school would be “integrated” if it had 
four all-white classrooms and four African-American classrooms. 

"¥Contrary to Appellants’ assertion that only two precincts 
(existing in 1990) are split by the 1997 plan, Jt. App. at 382, the 1997 
Twelfth District actually splits many (present day) precincts, see Tr. at 
191, because of changes which occurred after the computer was loaded 

with its data in 1991. See N. C. Gen. Stat. § 163-210(b) (1999) at Ex. 
219. However, even the use of whole precincts in the official computer 

database does not insulate a racially-constructed district from challenge. 

See Shaw v. Hunt, 517 U. S. 899, 932 n.7 (1996) (observing that the State 

in Miller had claimed to use whole precincts, “but the Court found that 
precinct lines had been relied on only because they happened to facilitate 
the State’s effort to achieve a particular racial makeup”). See also Hays  



  

20 

traditions. See Jt. App. at 97-99; Ex. 288A and 289. As the 

District Court also noted, in further disregard of political 

subdivisions, the Twelfth District split its four cities and many 

towns along racial lines. Appellants’ J.S. App. at 25a." 

In Bush v. Vera, even though there was some correlation 

between the Appellants’ proffered race neutral explanations and 

the district lines, the plurality opinion found “no basis in the 
record for displacing the District Court’s conclusion that race 

predominated over them, particularly in light of the court’s 

findings that . . . they do not differentiate the district from 

surrounding areas . . . with the same degree of correlation to 

district lines that racial data exhibit.” 517 U.S. 952, 966 (1996) 

(O’Connor, J., plurality opinion) (citations omitted). 

Furthermore, “[r]ace may predominate in the drawing of district 

lines because those lines are finely drawn to maximize the 

minority composition of the district, notwithstanding that in an 

overwhelmingly Democratic area, the total of Democrats in the 

district far exceeds its total minority population.” Id. at 972 

n.l. 

The district court found that “where cities and counties 

are split between the Twelfth District and neighboring districts, 

  

v. Louisiana, 936 F. Supp. 360, 368 (W.D. La. 1996) (three-judge court) 

(assignment of whole precincts by race violates Equal Protection), appeal 
dismissed as moot, Louisiana v. Hays, 518 U.S. 1014 (1996). Similarly, 
in North Carolina, the precincts have been drawn in a more racially 
segregated manner as a by-product of Voting Rights Act lawsuits in the 

‘state. See Jt. App. at 127-28. 

'°That this was no accident can be seen in the last minute fine 
tuning of District 12 described by legislative employee Linwood Jones to 
Rep. McMahan’s House Redistricting Committee on March 25, 1997. 
“In Iredell we have gone into Statesville, which I believe picked up the 

minority percentage of District 12 - we came a little bit more out of 
Southern Rowan when we did that.” Jt. App. at 460. 

   



21 

the splits invariably occur along racial, rather than political 

lines.” Appellants’ J.S. App. at 25a. This is true whichever of 

the four measures of “party affiliation” - registration or the 

voting results in three elections - is used. While some 
correlation exists between party and the boundaries of the 

Twelfth District, this correlation does not achieve the same 

precise match that exists between the boundaries of the Twelfth 

District and the predominately African-American precincts. 

This can be seen by comparing the district-wide racial 

percentage map of the Twelfth District with the voting results 

maps of the Twelfth District for the 1988 Court of Appeals race 

and the 1990 Senate race, and with similar maps for individual 

counties.” 

  

In an effort to discredit the conclusions of the district court, 
the Solicitor General misrepresents the meaning of the term “party 

affiliation” and attempts to equate it with voter registration. U.S. Brief at 
21. The term, as used regularly throughout the trial phase, refers to any 

of the “four different measures of party affiliation” contained within the 
database of the State’s redistricting computers. Peterson Dep. at 19. 

2'In their first appeal, Appellants, exaggerating the difference 
between the registration data and voting performance data, alleged that 

“the disparity between party registration and voting behavior in North 
Carolina explains the shape and racial demographics of District 12.” 

Brief on the Merits for Appellants at 31, Hunt v. Cromartie, 526 U.S. 
541 (1999). Accord, Appellants’ Brief at 23 ("undisputed"”, 
"uncontroverted"). In fact, as Dr. Weber later testified at trial and as the 

voluminous maps and data in the record show, an analysis of voting 

performance - especially in the urban Piedmont - is “very consistent” 

with a registration analysis. Jt. App. at 126. White Democrats in the 
Piedmont cities largely vote the way they register. See Stips. 54-61, Jt. 
App. at 17-20. Cf Jt. App. at 483-484, 489-496. Also the State 

considered registration data in constructing this very plan. See McMahan 
Dep. at 88; Jones Dep. at 44, 80, 149; Ex. 31; see also Peterson Dep. at 

82-83 (Dr. Peterson arguing against discounting "those analyses which 
include registration as a component”).  



  

22 

In mixed motive cases, a boundary which corresponds 

more precisely to racial demographic data than partisan voting 

behavior is important evidence of a predominantly race-based 

district. See Bush v. Vera, 517 U.S. 952, 970-975 (1996) 

(O’Connor, J., plurality opinion). The voter performance data 

as well as the party registration figures establish that the 

boundary of the Twelfth District corresponds more precisely to 

racial demographic data than to partisan voting behavior data. 

Thus, the district court’s finding that splits occur along 

racial and not political lines is amply supported. Dr. Weber 

explained that when the data showing the political character of 

the split portions of the cities and counties, J.S. App. at 189a, 

191a-92a, is compared with the data showing the racial 
character, Jt. App. at 323-25, 333-337, “[t]he racial differences 

are always greater than the partisan differences.” Jt. App. at 84; 

See also Tr. at 265-69. A similar analysis of precinct 

assignment to District 12 for every precinct within the six 

affected counties showed a startling contrast between 

assignment correlated to race and correlated to the four 

measures of party affiliation. See Jt. App. 515. Cf. Appellants’ 

Brief at 29, n.36 ("selected precincts"). A complete review of 

every precinct in each of the six counties, the racial character of 

each, and the assignment of each to a district revealed patterns 

showing racial assignment. See Jt. App. at 86-87, 111, 339- 

356. Even when the comparison is restricted to all precincts 

  

Also on their first appeal, Appellants attached to their reply brief 
new maps which showed the Republican victories in only the precincts 
immediately outside the Twelfth District. See Appellants’ J.S. App. at 
213a, 217a, 221a. A more complete version of these maps is attached to 
Appellees’ present brief. App.2a-4a. On this appeal, subsequent to trial 
Appellants have once again prepared new maps which were not : 
previously made available for evidentiary review by the district court. 

Appellants’ Brief at 1a-3a. Appellees’ objections to the authenticity of 
these new maps are detailed in the appendix to this brief. App. at Sa. 

   



23 

supporting a Democrat for office with, for example, 60 to 
69.9% of the vote, the precincts in this set most likely to be 

assigned to the 12™ District were the more heavily black ones. 

Id. at 87-88, 357-60. This “clear pattern” was constant for 
similar comparisons. Id. at 88, 101-03. 

The closer adherence to racial populations than to 

political voting behavior is also shown by comparison of the 
maps of the racial demographics - both for the district and for 
the three major counties - with the mapped election results for 

the 1988 Court of Appeals contest and the 1990 U.S. Senate 

contest. See id. at 94-95. It can also be seen by a contrast of 
the maps at Jt. App. 483 to 489 and 493 (districtwide); 484 to 
490 and 494 (Forsyth); Ex. 107 to Jt. App. 491 and 495 

(Guilford); Ex. 109 to Ex. 257 and 267 (Mecklenburg); Ex. 240 

to J.A. 492 and 496 (Iredell); Ex. 237 to Ex. 254 and 264 

(Davidson); and Ex. 242 to Ex. 254 and 264 (Rowan). See also 

Jt. App. at 2a-4a (summarizing the above maps and the 

additional data on the 1988 Lt. Governor contest results 
reflected in the state’s redistricting data set, e.g., Ex. 21,22, and 

132.) 

c. The Twelfth District of the 1997 Plan does not 

respect communities of interest or ease of communication. 

The Twelfth District stretches from the metropolitan 

area of Charlotte to that of Winston-Salem and Greensboro. 

Thus it includes portions of two Standard Metropolitan Areas 

(SMA) as well as parts of two television markets, several radio 

markets, and three newspaper circulation areas. See Jt. App. 

100-01; Tr. at 193-96; Ex. 302, 303. The map of population 

density for North Carolina illustrates how District 12 

consistently divides population centers. Jt. App. at 497. While 

the State has sometimes claimed the district unites “urban” 

populations, a casual review of the maps establishes that it only 

unites “urban black” populations, and uses “rural white” 

  

  

 



  

24 

connectors to do so. Significantly, while “urban” blacks are 

linked into one district, neighboring “urban” whites in the same 

six counties are placed in other congressional districts.? 

In this respect, the linking of supposed communities of 

interest does not differ from that accomplished by the Twelfth 

District of the 1992 Plan. Indeed, the very testimony relied on 

by Judge Thornburg in his dissent, Appellants’ J.S. App. at 53a- 

54a, and then cited by the Appellant-Intervenors, Appellant- 

Intervenors’ Brief at 24, was testimony which had been 

originally presented to the Shaw court as a justification for the 

unconstitutional 1992 Twelfth District. See Ex. 100, North 

Carolina Section 5 Submission, 1997 Congressional 

Redistricting Plan, 97C-28F-3B. On cross-examination in the 

Shaw trial, Gerry Cohen, the draftsman of the 1992 and 1997 

plans, admitted that when he spoke then of creating a “rural” 

Congressional District 1 and an “urban” Congressional District 
12, he “meant a rural black and urban black” district. Jt. App. 

at 814. 
Furthermore, the suggestion that all the connected 

Twelfth District voters (but apparently not their neighbors) 

share a link to Interstate 85 is also misleading. The district’s 

actual path meanders from Charlotte up I-77, then leaves I-77 

  

ZF or example, Mecklenburg County is the state’s most populous 
county but is smaller in population than a congressional district. It is 
divided by the District into three concentrations of voters - one in the east 
which is predominantly white, one in the center which is predominantly 
black, and one in the west which is predominantly white. Mecklenburg 
Precinct 77 is then split to connect the two white urban areas into 
Congressional District 9. District 9 also contains some adjacent whole 

counties with predominantly white rural, suburban and urban sections. 

The black urban area of Mecklenburg County is linked by white 

“corridor” precincts to the black urban areas of Greensboro, Winston- 
Salem, and High Point. 

   



25 

at Statesville and goes over to Salisbury where it follows 
generally the I-85 corridor until part of the district branches off 

to Winston-Salem. See Ex. 66. Black voters in Winston-Salem 

are not connected by I-85, and many white voters not in the 

Twelfth District have as least as much link to I-85 as many 

blacks in the Twelfth District. Therefore, I-85 provides no 

basis to distinguish black voters included in District 12 from 

nearby white voters who are excluded. Cf Bush v. Vera, 517 

U.S. 952, 966 (1996) (O’Connor, J., plurality opinion) (finding 

no basis for displacing finding of predominance when 

purported race-neutral explanations do not differentiate the 

district from surrounding areas with the same degree of 

correlation as does racial data). 

Thus, unless community of interest is defined in racial 

terms the Twelfth District lacks “community,” and even then 

the connecting white corridors would fall outside the 

“community.” Defining community of interest on the basis of 

race would violate Shaw because it justifies a plan that 

“includes in one district individuals who belong to the same 

race, but who are otherwise widely separated by geographical 
and political boundaries” on the very grounds that Shaw 

condemns. Shaw v. Reno, 509 U.S. 630, 647 (1993). 

Si Pe ‘The racial explanation for the Twelfth District is better 
supported than the alternative political explanation advanced by 

Appellants. 

a. The Twelfth District is too safe to be understood as 

an attempt to protect a generic Democrat rather than as an 

attempt to ensure that a black Democrat wins the primary and 

then the general election. 
Appellants criticize the district court for giving weight 

to Dr. Weber’s statement that the Twelfth District of the 1997 

Plan is “too safe” to be explained merely as part of an effort to  



  

26 

maintain a 6-6 partisan balance. Appellants’ Brief at 27. 

Appellants misapprehend the thrust of his analysis. Dr. 

Weber’s point is not merely that he prefers competitive 

districts, but that an explanation that the district was 

constructed for a Democrat of any race to win is probably 

inaccurate if the district is “safer” than necessary for any 

Democrat to win. Contrary to the State's view, Appellants’ - 

Brief at 11, 30, the record contains a number of "viable 

alternatives” to the 1997 Plan. These Twelfth Districts “safe” 

for any Democrat include the 1998 plan and draft plans dated 

as far back as 1995. See, e.g., Ex. 126-129. 

Dr. Weber’s analysis regarding competitiveness reveals 

the true purpose of the legislature. The Twelfth District is 

gerrymandered so that African-Americans make up about 60% 

of the persons eligible to vote in a Democratic primary. As Dr. 

Weber noted, in this district “black voters have the ability to 

control the Democratic nomination” and can then “count on 

some crossover voting in the general election to win.” Jt. App. 
754. Accord, Cohen Dep. at 199-200. Or, as plaintiff Jake 

Froelich put it, for “a white candidate in a primary”, it “would 

be very, very difficult for that person to be nominated.” Jt. 

App. at 67. See also Ex. 52, pp. E-1, E-2, E-4, and E-8 

(analysis of reconstituted Democratic primary election results). 

North Carolina has party primaries which are only open 

to registered voters of the party and to independents, and in 

which a candidate with a plurality can win a primary with just 

40% of the vote. N.C. Gen. Stat. § 163 - 111 (1999). Thus the 

relative numbers of the black and white registered voters in a 

district can have a major influence on who is most likely to win 

the primary. If the number of registered white Democrats in a 

district is less than a majority, but more than 40%, a risk 

remains that a single candidate with united white support might 

prevail over a fractured field of other candidates whose support 

   



27 

comes overwhelmingly from black voters.” In the context of 
the Democratic primary, racial registration data is especially 

important in discerning predominant racial motive. 

‘Because of the addition of the “Greensboro Black 

community” in the Cooper 3.0 plan, the percentage of 

' Democrats who were black increased from 52.5% to 60.2%. 
Appellants’ J.S. App. 241; Ex. 130D. Later, a number of minor 

changes were made to the Twelfth District in its final form, and 

this percentage was increased to 60.5%. Appellants’ J.S. App. 

  

. ZIn the 1992 Democratic primary this almost came to pass in the 
First District. State Representative Walter Jones, Jr., son of the retiring 

First District Congressman Walter Jones, Sr., competed as a Democrat 
and received 38% of the vote, while another white and several black 

candidates divided the remaining vote. With 40% of the vote Jones 

would have become the party nominee and in that event undoubtedly 

would have been elected. However, in the runoff, Eva Clayton, who was 

preferred by black voters, received a majority and the nomination, and 
then she won easily in the general election. 

The calculation of the black portion of Democratic primary 
voters is made possible by the fact that North Carolina maintains its voter 
registration records both by party and by race. Appellants’ J.S. App. at 
79a; Ex. 206. The numerator is the number of black registered voters in 
the 12" District times the rate of black registration as Democrats. Mr. 

Cohen previously studied that rate, and determined the figure to be 95% 

in urban areas. Jt. App. at 589. The denominator is the group of voters 
permitted under North Carolina law to vote in Democratic primaries, 
which is Democrats plus registered independents (only 773 in this 

district), who may choose to vote in one of either party’s primary. Stip. 
53, Jt. App. at 17. 

For example, using the numbers from Appellants’ J. S. App. 
79a, the 1997 Twelfth District Democratic primary black percentage of 

60.5% is calculated by multiplying the number of registered black voters 

in the District, 126,488, by 0.95, the rate of black registration as 

Democrats. The product, 120,164, is divided by the sum of the number 

of registered Democrats and the number of registered independents 
(197,783 + 773 = 198,556). The resulting quotient is 60.5%.  



  

28 

79a. On the other hand, under the 1998 Plan, Jt. App. at 502, - 

which was used in the 1998 primaries and elections - the 

percentage of Democrats who were black was 47.9%. Ex. 

103B. These percentages - when considered in conjunction 

with the 40% rule - help explain the predominant racial purpose 

of the General Assembly (a) in shaping the 1997 plan’s Twelfth 

District, and (b) later in inserting the provision whereunder the 

State would revert from the less racially gerrymandered 1998 

plan to the 1997 plan if the State successfully appealed the 

summary judgment against that plan. 

The same consideration may explain the reluctance to 

include some white Democratic precincts adjacent to the 

district, and the failure to exclude some white Republican areas 

in return. Adding white Democratic precincts would weaken 

the control of the primary by the otherwise dominant racial 

group in the district. On the other hand, retaining the white 

Republican precincts would not change the results of the 

general election in November; and so the white Republican 

voters can be used as mere “filler.” John Hart Ely, Standing to 

Challenge Pro-Minority Gerrymandering, 111 HARV. L. REV. 

576, 584 (1997). 
The overwhelming partisan safety of the 1997 district is 

illustrated by the results of statewide elections calculated for the 

precincts in the 1997 version of the District. Jt. App. 90-91; 
Ex. 52, pp. E-3, E-5, E-6, E-7, and E-9; Jt. App. 92-93; Ex. 206 

(NCEC data used by Sen. Cooper showing an average 

Democratic performance of 62.7%, and President Clinton in 

1996 polling 64.4% within the 1997 District 12). The 

overwhelming safety is confirmed by the 1998 general election 

results, when the District had been reduced to a 33% black 

voter registration (Ex. 103B), but provided Congressman Watt 

56% of the vote. See Stip. 74, Jt. App. at 20. In other words, 

the General Assembly did much more than just avoid pairing 

incumbents. Cf U.S. Brief at 14. It considered the political 

    

 



  

  

29 

interests of each incumbent as an individual and then 

gerrymandered the Twelfth District predominantly with the 

purpose to assure a racially determined result in the primary. 

As a result, contrary to the suggestion by the Solicitor General, 

U.S. Brief at 17, this district is fundamentally different from the 

district in Lawyer v. Department of Justice, 521 U.S. 567 

(1997). It does not offer any candidate without regard to race 

the opportunity to seek office and be elected. Cf. id. at 581. 

Rather, it is specifically designed to ensure that only a 

candidate of one preordained race will be elected. 

b. The Twelfth District of the 1997 Plan essentially 

maximized its African-American population, but not its 

Democratic voters. 
As the district court noted, Appellants’ J.S. App. at 7a, 

Dr. Weber looked at maps and data and found divisions along 

racial lines. See also Jt. App. at 97. Although Appellants seek 

to fracture the evidence in order to discount it, Dr. Weber’s 

finding of a greater correlation is fully supported by the 

evidence when taken as a whole. 
In an effort to avoid the Miller test, the Solicitor 

General suggests that in order to prevail the Shaw plaintiffs 

must show how to construct a more politically gerrymandered 

district. However, in no other Shaw case has any court 

suggested that plaintiffs must illustrate how a more Democratic 

or incumbent-friendly district may be formed in order to prove 

racial gerrymandering. Moreover, such a requirement - which 

the plaintiffs in Shaw itself might not have been able to fulfill - 

ignores the role of race in determining who will be the party 

nominee and disregards many other factors which should be 

considered by the fact-finder in light of all the evidence. 

The maps appended show precincts outside the district 

which voted for the Democratic candidate in all three elections 

(confirming Dr. Weber’s testimony that precincts with 

  

 



  

30 

Democratic voting behavior also adjoin District 12, Jt. App. 

103-05) and some precincts inside the district which vote 

Republican in the same group of elections. Thus, they make 

clear that a swap could occur. App. at 2a-4a. The Democratic 

voting performance of the district would be boosted by 

removing all precincts which voted Republican in all three 

elections, and substituting precincts with similar population 

which voted Democratic in all three elections.” Extending the 
district to Burlington or Gastonia in a manner not unlike the 

1992 Twelfth District would also have a similar effect of 

increasing the Democrat performance of the district. Finally, 

the Democratic strength as measured by the 1988 Court of 

Appeals race would increase from 61.5% to 68.3% by re- 

adopting the 1992 plan as a “max-Democrat plan.” Cf. Ex 
101B; Appellants’ J.S. App. at 80a. 

Thus, Judge Thornburg errs, Appellants’ J.S. App. at 
50a, as do Appellants, Appellants’ Brief at 28 -29,and App. 1a 

-3a, and the Solicitor General, U.S. Briefat 7,20 n.6, and 24-25 

n.10, in suggesting that the only way to include Democratic 
performing, mostly white precincts in Guilford or Forsyth or 

  

For example, by exchanging Greensboro 11 and 14 with High 

Point 1, 13, 15, and 19, the loyal white Democrats in central Greensboro’s 

university community could be traded for an equivalent number of white, 

suburban, Republican voters in High Point. Similar trades of equivalent 
white populations with different politics could replace Thomasville 1 and 
Lexington 3 with Greensboro 17 and Charlotte 81 and LC1-South in 

Mecklenburg with Charlotte 10 and 21. By reworking other districts, and 

by using a computer instead of identifying these precincts by hand from 

population data from Table 5, Jt. App. at 339-356, maps of Republican 
victories, App. at 2a-4a, precinct maps at Jt. App. at 487, 488 and Ex. 

145, and the raw data from the state computer system (using Exs. 21, 22, 

and 132), this list could no doubt be expanded. Each substitution affects 

compactness and appearance, but the legislature has already ignored both 
to such a degree that any further distortion appears immaterial. 

   



31 

Mecklenburg counties in the district is to displace the 

immediately adjacent precinct, which may be more black and 
more Democratic in performance. This is a false choice. These 

reliable, but white Democrats could be substituted for any one 

of the other 154 precincts in the entire district with lower 

Democratic voting performance, equivalent population, and a 

geographic location permitting the exchange. 

c. The “segment analysis” advanced by Dr. Peterson 

was properly found by the District Court to be unreliable. 

The finder of fact in this case recognized that Dr. Weber 

had “presented a convincing critique of the methodology” used 

by Dr. Peterson and showed it to be “unreliable.” Appellants’ 

J.S. App. at 27a. See also Jt. App. 112-23. Contrary to 

Appellants’ contention that “Weber and the district court 
majority, however, inexplicably dismissed Peterson’s segment 

analysis,” (Appellants’ Brief at 29 n.36), the district court had 

ample basis for finding that his analysis was “non-traditional,” 

“ha[d] ‘not been appropriately done,’ and was therefore 

‘unreliable.”” Appellants’ J.S. App. at 27a (quoting Dr. Weber 

at Jt. App. at 119). 
Dr. Peterson’s rejected analysis - the so-called “segment 

analysis” - was unprecedented in any voting rights or Shaw 

cases. Not only had this analysis not been applied to any other 

district, but it had also not been presented at any academic 

institution or published in any scholarly journal for peer review. 

Jt. App. at 257. 
Contrary to the State Appellants’ implication that the 

only major concern of the court with Dr. Peterson’s “segment 

analysis” was that it ignored the core of the Twelfth District, it 

contains many fundamental defects which render it unreliable 

and irrelevant to the question it purports to address. See, e.g, 

  

  

 



  

32 

Pet. Dep. at 14-20, 33, 41-44, 48-51, 56, 62, 64-72, 78, 87-88.% 

The chief defect is that Dr. Peterson’s analysis is not a 

decisional analysis. Jt. App. at 732. In other words, it does not 

try to take into account the “real world” macro level decisions 

of whether or not to split another county, choose a different 

core for a district or add “the Greensboro Black community.” 

Jt. App. at 112-13, 716, 732. Cf. Bush v. Vera, 517 U.S. 952, 

972 n.1 (1996) (O’Connor, J., plurality opinion) (criticizing 

dissent for ignoring “the necessity of determining whether race 

predominated in the redistricters’ actions in light of what they 

had to work with”) (emphasis in original). Moreover, Dr. 

Peterson relied on obviously faulty data. See, e.g., Jt. App. at 

721-726. Also, Dr. Peterson did not measure people, but 

instead analyzed arbitrarily chosen segments along the 

boundaries of the Twelfth District without weighing the size or 

relative degrees of differences in the segments.” This failure 

to give weight to the segments renders Dr. Peterson’s analysis 

a meaningless mathematical exercise with no relevance to the 

demographic realities on the border of the Twelfth District. 

  

The analysis was so unreliable and therefore irrelevant to the 
task at hand that Appellees even moved to exclude Dr. Peterson’s 

opinion pusuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 

U.S. 579 (1993). That motion, although not granted, outlines in detail 

reasons for giving no weight to Peterson’s analysis. 

Y’For example, with respect to one boundary segment, between 

High Point Precincts 1 and 4, Dr. Peterson observed that seven African- 
Americans out of a total registered voter population of 2,114 in the 
outside precinct was a higher proportion than four out of 1,212 on the 
inside. Jt. App. at 729-731. This trivial difference, less than .01%, was 
used as evidence that the legislature did not always prefer and include the 
more heavily black precinct inside the district, thus counting against the 

“racial hypothesis.” In some manner, weight should have been given to 

the number of persons - black, white, Democrat, or Republican - on each 

side of the boundary 

   



33 

Even if the factfinder had accepted at face value Dr. Peterson’s 

testimony, the ultimate conclusion of Dr. Peterson was that he 

was unable to determine whether race or party predominated 

over the other. Accordingly, his testimony had little 
evidentiary value. 

C. Direct evidence also supports the District Court’s 

finding that race predominated. 

Appellants claim that the North Carolina General 

Assembly was merely “conscious” of race. Appellants’ Brief 

at 12. The direct evidence in this case reveals a different story. 

The General Assembly had racial goals which had to be met 

and which could not be compromised. Cf Shaw v. Hunt, 517 

U.S. 899, 907 (1996). 

1. E-mail establishes that the State used a racial approach 

to redistricting, and that a significant number of voters were 

placed into the district based on race. 

The discovery process revealed an E-mail from Gerry 

Cohen, the draftsman of the 1992 and 1997 plans, to Senator 

Cooper and Senator Leslie Winner This E-mail 

  

2In contrast to the report of his views at the summary judgment 

stage, Dr. Peterson at trial retreated from his conclusion that politics 
better explains the boundary of the district, and instead stated that race 

and politics were “statistically indistinguishable.” Jt. App. at 248. He 
certainly no longer concludes that Democratic performing precincts are 

included “much more often” than black ones. Hunt v. Cromartie, 526 
U.S. 541, 550 (1999). 

¥Cohen was the draftsman of the 1992 Plan and Senator Winner 
had been a private voting rights attorney practicing in Charlotte in the 

same law firm as Rep. Mel Watt. She was hired as a consultant by the 
North Carolina House of Representatives for the 1992 Plan, and had a 

very large role in the drawing of that plan. Later elected as a state 

senator, Leslie Winner played a very significant role in the 1997  



  

34 

memorialized the decision to add the “Greensboro Black 

community” to the Twelfth District and the corresponding need 

to remove approximately 60,000 persons, who turned out to be 

mostly white. Jt. App at 369. The E-mail was sent February 

10, 1997, and reflects the change which gave the 1997 Plan 

Twelfth District its ultimate form. 

As the district court correctly found, this E-mail “clearly 

demonstrates that the chief architects of the 1997 Plan had 

evolved a methodology for segregating voters by race, and that 

they had applied this method to the 12" District.” Appellants’ 
J.S. App. at 27a. Also, as the District Court observed, “[t]he 

computer system used by the state has the capacity to identify 

and apportion voters based on race, and to determine the exact 

racial make-up of each district. The Cohen-Cooper e-mail 

reveals that exact percentages were used when constructing 

districts.” Id. at 28a. 
Appellants deride the significance of this “hastily 

drafted E-mail.” Appellants’ Brief at 39. They claim that the 

phrase “Greensboro Black community” “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.” Id. Therefore, 

they protest that “an equal protection violation cannot turn on 

Cohen’s failure to stick the word ‘Democratic’ between 

‘Greensboro’ and ‘Black.’ Id. 

However, it is in part the very haste and informal nature 

of this E-mail that give it its relevance. This E-mail was not 

meant for public and judicial consumption and was not filtered 

through a carefully drawn formal affidavit. Instead, it provides 

a view behind the scenes into what those who drew up the 

redistricting plans were really thinking and talking about. As 

  

Redistricting Plan, working closely with Senator Cooper and even 
personally working the redistricting computer. Winner Dep. at 50. 

   



35 

that E-mail reveals, behind the scenes the principal authors of 

the plan had a single-minded obsession with the racial 

composition of the First and Twelfth Districts, rather than the 

political. The fact that the entire E-mail is primarily a 

discussion of race and racial percentages for the First as well as 

the Twelfth District belies the State’s attempt to explain away 

the reference to the “Greensboro Black community” as a 

shorthand reference to the “Greensboro Democratic 

community.” Cf. Shaw v. Hunt, 517 U.S. 899, 907 (“Race was 

the criterion that, in the State’s view, could not be 

compromised; respecting communities of interest and 

protecting Democratic incumbents came into play only after the 

race-based decision had been made.”). This E-mail is a 

snapshot view of a Miller violation in process, as Gerry Cohen, 

the plan’s draftsman, memorialized a precise moment in which 
he “place[d] a significant number of voters within or without a 

particular district” on the basis of their race. Miller v. Johnson, 

515 U.S. 900, 916 (1995). As a result of this decision, the 

Twelfth District added a net of 40,000 African-American 

persons and increased from 40% to 47% black. See Appellants’ 

J.S. App. at 241a; Ex. 130D. Cf. Appellants’ Brief at 39-40, 

n.48. Also, the black percentage of the total Democratic 

primary voters was boosted to 60%. 

2. The District Court correctly found that the General 

Assembly achieved its racial target for the Twelfth District of 

just under 50%. 
Looking at the direct evidence in this case, the District 

Court found that “the clear inference here is that a motive 

existed to compose a new 12" District with just under a 

majority minority in order for it not to present a prima facie 

racial gerrymander.” Appellants’ J.S. App. at 28a. This crucial 

finding confirms an explicit racial target for the district, and a 

purpose to avoid judicial review of racial gerrymandering by 

  

 



  

36 

staying below a supposed threshold for such review. This 

finding is the predicate for the district court’s subsequent ruling 

that “using a computer to achieve a district that is just under 

50% minority is no less a predominant use of race than using it 

to achieve a district that is just over 50% minority.” Id. * 
Neither Appellants nor any of their allies mentioned this 

  

‘Contrary to the opposing position expressed by Senator Cooper 
at the time the 1997 Plan was passed, achieving a racial target of just 
under 50% by substantially disregarding traditional redistricting 
principles is violative of “the essence of the equal protection claim 
recognized in Shaw [which] is that the State has used race as a basis for 

separating voters into districts.” Miller, 515 U.S. at 911. Clearly, 
splitting numerous cities along racial lines in order to achieve a racial 

target of just under 50% is placing “a significant number of voters within 
or without a particular district” on the basis of race. Id. at 916. And, 
when any racial percentage is targeted, it is fair to say that “the 

decisionmaker . . . selected or reaffirmed a particular course of action (as 

to that district) at least in part ‘because of,’ not merely ‘in spite of,’ its 
adverse effects.” Id. (citations omitted). 

In Lawyer v. Department of Justice, decided after enactment of 
this 1997 plan, the Court addressed a district of 36.2% black voting age 

population which was found to have been open to election of a candidate 
of any race. 521 U.S. 567, 581 (1997). In Lawyer, this finding was 
approvingly cited as supporting the District Court’s ultimate finding that 
race did not predominate in that district - a finding which the Court found 
was not clearly erroneous. See id. at 582. On the other hand, the 1997 
Twelfth District is excessively safe for an African-American candidate of 
choice, including the present incumbent. More important, however, the 
Court has never held that the Equal Protection Clause does not apply to 
districts with less than 50% minority population. Accordingly, federal 
courts have applied the Shaw/Miller doctrines to invalidate several 
majority white districts in other instances. Kelley v. Bennett, 96 
F.Supp.2d 1301, 1302 (M.D. Ala. 2000) (three-judge court), appeal 

docketed, No. 00-132 (U.S. July 24, 2000); Smith v. Beasley, 946 F.Supp. 
1174, 1176 (D.S.C. 1996) (three-judge court); Johnson v. Miller, 929 

F.Supp. 1529, 1550 (S.D.Ga. 1996) (three-judge court) (House District 

120). 

   



37 

critical finding in their “rigorous review of the record and 

decision below.” Appellants’ Brief at 16. Appellants do 

obliquely refer to “the court’s reliance on a second statement by 

Cooper during the Senate floor debate that strict scrutiny 
analysis may not be triggered because District 12 is not 

majority-minority.” Appellants’ Brief at 39.) However, 
contrary to Appellants’ assertion, Senator Cooper was not 

“merely reciting his understanding of the current state of equal 

protection law.” Id. Moreover, the legislative record itself 

belies Senator Cooper’s claim that he had not even thought of 

this argument “until this final plan had been prepared.” Jt. App. 

at 228. 

The final plan referred to by Senator Cooper, was 

prepared and agreed to on March 24, 1997. Jt. App. at 507. 

However, on February 20, 1997, when Senator Cooper 

presented his first plan publicly to his Senate Committee - 

  

3!Senator Cooper said: 

I believe that this new 12" District is constitutional for several 
reasons. First, and maybe most importantly, when the Court 

struck down the 12" District it was because the 12 District was 
majority-minority and it said that you cannot use race as the 
predominant factor in drawing the districts. Well guess what! 

The 12" District, under this plan, is not majority-minority. 

Therefore, it is my opinion and the opinion of many lawyers that 
the test outlined in Shaw v. Hunt will not even be triggered 
‘because it is not a majority-minority district and you won’t even 
look at the shape of the district in considering whether or not it 
is constitutional. That makes an eminent amount of sense 
because what is the cutoff point for when you have the trigger of 
when a district looks ugly? 1 think that the court will not even 
use the shape test, if you will, on the 12" District because it is 
not majority minority. It is strong minority influence, and I 

believe that a minority would have an excellent chance of being 
elected under the 12" District. 

Jt. App. at 475-476.  



  

38 

more than a month before the final plan was developed - 

Senator Cooper advised his committee that one of the reasons 

this earlier plan was constitutional was that its Twelfth District 

was not a majority-minority district. Id. at 395-396. 

A month later, on March 19, 1997, Senator Cooper once 

again defended his first public plan, Senate Plan A, at the next 

official meeting of his Senate committee. There also, after 

mentioning that its Twelfth District was not majority-minority, 

Senator Cooper said “I don’t believe, certainly we can argue and 

don’t believe that the test for the constitutionality as laid out in 

Shaw v. Hunt would even be considered because it is not 

majority/minority.” Jt. App. at 406. Additionally, during that 

meeting Senator Cooper criticized a rival plan offered by 

Senator Betsy Cochrane for “triggering the test” of Shaw.>? 
Likewise, Rep. McMahan informed the members of the 

House of Representatives on the floor that one of the reasons 

the 1997 District 12 would be constitutional was because it was 

“[n]ot a Majority/Minority District now so shape does not create 

that - that was the basis the Court used to say this was 

unconstitutional - not an argument now.” Jt. App. at 465. Even 

more tellingly, when Rep. McMahan informed his committee 

that he had decided to acquiesce to the Senate version of 

District 1 and 12, he said, “The Plan you see does maintain 

racial fairness in District 1 and 12. We 've actually agreed to 

increase the percent of minorities in District 12 to 46% and are 

now basically following the Senate Plan on District 1 and 12.” 

  

In regards to her 12" District, he said, “I believe it’s a little 

over 41% African-American and a little over 8% Native-American, so 

you add those together, you make it majority/minority. That in turn 

would trigger the test under Shaw v. Hunt and 1 don’t think our 12" 
District . . . under Plan A has triggered the test.” Jt. App. at 415. 
Similarly, he criticized another district. “In the 1* District, I think you 
have some of the same problems. You do trigger the test because it is 

majority/minority . . ..” Id. at 416. 

   



39 

Jt. App. at 455 (emphasis added). 

Similarly, when asked about the racial fairness of his 

plan on the floor of the House, Rep. McMahan responded by 
saying ‘that “we have done our best - our dead level best - to 

draw two Districts that are fair racially and do have one of them 

the majority of the population and the other one over 46%, and 

that’s the very best we could do on both sides, and we looked at 

this very, very closely.” Jt. App. at 471 (emphasis added). 

These statements made by Senator Cooper and 

Representative McMahan about avoiding the test of Shaw 

demonstrate their clear racial motive - a motive to be free of 

any Shaw restrictions on their racial gerrymandering. If there 

were no racial motive driving the formation of the Twelfth 

District, there would be no need to be concerned about 

“triggering the test of Shaw.” Finally, even if the court had 

credited Senator Cooper’s statement,” the ultimate question is 

still the legislative intent, and not the subjective intent of 

Senator Cooper. The fact that this rationale was advocated to 

the General Assembly by the chairmen of the redistricting 

committees in both Houses in and of itself is enough to support 

  

31 egislative witnesses’ “inconsistent statements must be viewed 
in light of their adversarial context. But such questions of credibility are 
matters for the District Court.” Bush v. Vera, 517 U.S. 952, 970 (1996) 
(O'Connor, J., plurality opinion). The fact finder’s determination of the 

lack of credibility of Appellant’s witnesses was both impeaching 

evidence and substantive evidence against Appellant’s position. See, e.g. 

Reeves v. Sanderson Plumbing Products, Inc., U.S. , 120 S.Ct. 
2097, 2108 (2000). See also McQueeney v. Wilmington Trust Co., 770 

F.2d 916, (3rd Cir. 1985). Contrary to the Solicitor General’s assertion, 

U.S. Brief at 27, the district court’s finding of Senator Cooper’s lack of 
credibility was not based on its reading of statistical evidence, but on its 
evaluation of Senator Cooper, his demeanor, consistency, and the 

plausibility of his testimony.  



  

40 

the district court’s finding of a specific racial target.** 

3. The General Assembly deliberately and successfully 

preserved the racial balance of two African-American 

congressmen and ten white congressmen. 

Not only did the district court find the existence of a 

targeted racial percentage, it also found that the General 

Assembly had a goal of preserving the racial balance of North 
Carolina’s congressional delegation. See Appellants’ J.S. App. 

at 27a. This finding goes to the ultimate and overriding racial 

goal of the General Assembly for the Twelfth District: 

preserving the racial quota or balance of two African-American 

congressmen and ten white congressmen. The target of just 

under 50% African-American for the 12" District could be 

fairly characterized as the means to this end. 

This is the essence. of the frequent allusions of members 

of the General Assembly to the crucial necessity for “racial 

fairness.” See Jt. App. at 393, 443, 444, 447, 453, 455, 459. 

464, 470, 471, 475. In the legislative record, the discussion 

about the Twelfth and First Districts was not so much their 

contributions to “partisan balance,” but rather to racial fairness. 

See id. Moreover, while the actual partisan balance shifted 

frequeritly in the 1990s, the racial balance was kept constant.> 

  

  

  

34Senator Cooper admitted that there was a racial target of 
creating the First District to be a majority-minority district and this could 
not be compromised. Jt. App. at 224. This admission makes more 

plausible the court’s finding of a racial target in the Twelfth, because 
these two districts were linked in the legislative discussions about racial 
fairness and balance. See id. at 391-481. 

35 Appellants have raised the attempt to preserve a partisan 
balance as a defense for the 1992, 1997 and 1998 plans. Actually, the 

“partisan balance” of the Congressional delegation shifted in each of the 
1992, 1994, 1996, and 1998 elections, going from 8-4, 4-8, 6-6, and 5-7 

   



41 

4. The General Assembly preserved the racial cores of the 

prior unconstitutional district. 

Likewise, the General Assembly’s attempt to retain and 

re-label the racial core of a prior unconstitutional district is 

itself evidence of racial intent.*® See Jt. App. at 486. In the 

  

Democrats versus Republicans. The racial balance, however, has 

remained constant at two blacks and ten whites, as it was intended to do 

under the 1992, 1997, and 1998 plans. 
Appellants argue that the presence of the term geographical 

balance in the same phrase as political and racial balance means that 
“there was no reason to assume . . . that Senator Cooper’s reference to 

race had a numerical connotation.” Appellants’ Brief at 39. This 

argument does not logically follow. The very term “balance” itself 
implies a quantifiable distribution. Moreover, geographic balance in the 
context of the 1997 plan could have several plausible meanings. It could 
refer to the stated goal of not dividing any county into more than two 

districts. It could also refer to the basic distribution of the Congressional 

districts across the three geographic divisions of North Carolina - the 

coastal plain, the Piedmont, and the mountains. 

36 According to Senator Cooper, “[w]hat we tried to do was to 

make each district more geographically compact, leaving the core area for 
each of the present districts. That means that each of the incumbents are 

there in their core area and the districts have not changed radically to the 
point of affecting the past political outcome.” Jt. App. at 398. 

‘The deposition testimony of Senator Leslie Winner, who played 
a key role formulating the 1992 Plan and in assisting Senator Cooper in 

the 1997 Plan, illustrates the racial character of the term “core.” “[F]or 
any incumbent you would have a constituent base that you considered to 
be your core constituent base and that - that you would like to keep if the 
district was modified.” Jt. App. at 779. “For example, Eva Clayton may 

have thought that the black communities of Fayetteville and Wilmington 
were part of her core constituent base and she didn’t keep them. Mel 

Watt may have thought that the black community of Durham was one of 

his core constituent bases and he didn’t keep that.” Jd  



  

42 

1997 Twelfth District, 90.2% of the African-Americans had 

also been residents of the 1992 Twelfth District, while only 

48.8% of the white population in the 1997 Twelfth District had 

also been in the 1992 Twelfth District. Jt. App. at 78. Thus, it 

seems clear that in this context, “maintaining the core” was 

maintaining the racial core. See Jt. App. 128-29. 

In Abrams v. Johnson, the Court stated that when 

several districts in a redistricting plan were predominantly race 

based and therefore unconstitutional, they were “improper 

departure points” for the drawing up of a new remedial plan. 

521 U.S. 74, 90 (1997). Instead, the courts are called on to 

“correct - not follow - constitutional defects in districting 

plans.” Id at 85. “Using (an unconstitutional) precleared plan 

as the basis for a remedy would validate the very maneuvers 

that were a major cause of the unconstitutional districting.” Id. 

(upholding the District Court’s decision to use the 1972 and 
1982 plans as a basis for the remedial redrawing of Georgia’s 

Congressional districts following Miller v. Johnson, 515 U.S. 

900 (1995)). 
For the Court to approve use of the racial core of a 

district that has been held to be unconstitutionally race-based in 

order to preserve the “racial balance” or racial quota of the prior 

plan would likewise “validate the very maneuvers that were a 

major cause of the unconstitutional districting.” Abrams, 521 

U.S. at 86. This is especially true in this case, where the “core” 

of District 12 is the racial archipelago of African-American 

areas in all the major Piedmont cities strung together by white 
corridors. By attempting to preserve the core of the 

unconstitutional district in this way, Appellants have not cured 

the constitutional defects of the prior plan. Instead they have 

merely adopted a plan with a “physically modified but 

conceptually indistinguishable ‘new’ [district], again violating 

historical political subdivisions and ignoring other traditional 

redistricting criteria.” Hays v. Louisiana, 936 F.Supp. 360, 372 

   



43 

(W.D. La. 1996) (three-judge court), appeals dismissed as 

moot, Louisiana v. Hays, 518 U.S. 1014 (1996). Cf. Jt. App. at 

469 (African-American legislator observing that “all you have 

done with the Twelfth District in this bill is knock sixty miles 

off of it”). 
Appellants now rely on the protection of incumbents as 

their chief defense for this plan. See Appellants Brief at 21. 

But when the plan was under consideration, Senator Cooper 
emphasized to his colleagues that “this is not an incumbent 

protection plan.” Jt. App. at 477. “I don’t want this to be 

called an incumbent protection plan because it is not.” Jt. App. 

at 398. Moreover, the racial character of this district was 

deliberately designed to transcend its incumbent. According to 

Rep. McMahan speaking on the House floor, this particular 

district “[a]bsolutely without any question” was designed so 

that not only Mel Watt but also “anyone else that might choose 
as a minority to run in that District should feel very, very 

comfortable . . . that they could win.” Jt. App. at 470. 

‘If incumbency protection can be a defense to racial 

gerrymandering even when the incumbent won election in a 

district adjudicated to be unconstitutionally race-based, 

Appellants would have been able to reenact the 1992 Twelfth 
District under the guise of “incumbency protection” or 

“retaining the partisan balance.” To allow this would make a 

mockery of Shaw v. Reno and its observation that “appearances 

do matter.” 509 U.S. 630, 647 (1993). The Court should not 

permit constitutional violations to be perpetuated in the name 

of incumbency protection. 

Because of the method and motive involved in the 

protection of the incumbent of the Twelfth and surrounding 
districts in the 1997 Plan, the use of incumbency protection in 

this case is no longer race-neutral, and thus is not entitled to  



  

44 

deference.’” Incumbency protection cannot be used to 
circumvent the Fourteenth Amendment, as was noted in Vera 

v. Richards. “Incumbency protection is a valid state interest 

only to the extent that it is not a pretext for unconstitutional 

racial gerrymandering.” Vera v. Richards, 861 F.Supp. 1304, 

1336 (S.D. Tx. 1994) (three-judge court) (criticizing the 

  

In Appellants’ own Section 5 Submission, the racial nature of 

Appellants’ incumbency protection efforts is made clear in the discussion 

of the House's rejection of three alternative redistricting plans proposed 
by two African-American legislators. It noted that “all three plans would 
seriously weaken the ability of the African-American incumbent in 

District 12 (Congressman Watt) to win re-election.” Ex. 100, 97C-27R. 
Specifically, “[t]he African-American percentage in District 12 is only 
37.66 percent in Plans B and C and 37.44 percent in Plan A - 
approximately nine percent lower than the African-American percentage 
of District 12 in the enacted plan.” Id. 

The assumption of Appellants and their allies that any 
redistricting action is cleansed of its racial nature simply because it is 
adopted to protect an incumbent is not supported by the Court’s 
precedents. Appellants especially overreach by implying that Appellees 
bear the burden of disproving the presence of incumbency protection in 

the drawing of this plan in order to establish racial predominance. 

Appellants’ Brief at 9, 21. Appellants overlook the fact that racial 
predominance and incumbency protection are not mutually exclusive. 

See Shaw v. Hunt, 517 U.S. 899, 907 (1996) (stating that the 
circumstance that the legislature protected incumbents “does not in any 
way refute the fact that race was the legislature’s predominant 
consideration”); Bush v. Vera. 517 U.S. 952, 965 (1996) (O'Connor, J., 
plurality) (finding it “clear that race was not the only factor that 
motivated the legislature to draw irregular district lines” in view of 
incumbency protection evidence); Vera v. Richards, 851 F.Supp. 1304, 
1339 (S.D. Tex. 1994) (three-judge court) (finding that incumbent 
protection was “not a countervailing force against racial 
gerrymandering,” but rather that “racial gerrymandering was an essential 
part of incumbency protection”), aff’d sub nom. Bush v. Vera, 517 U.S. 

952 (1996). 

   



  

45 

“talismanic status of incumbent protection in the State’s 

argument”), aff’d sub nom. Bush v. Vera, 517 U.S. 952 

(1996).® Accordingly, the district court noted that the General 
Assembly was free to consider incumbency protection “to the 

extent consistent with curing constitutional defects.” 

Appellants’ J.S. App. at 29a-30a. Appellees submit that in the 

context of attempting to satisfy a racial quota through racial 

means, the General Assembly’s goal of protecting the 

incumbent of the unconstitutionally race based 1992 Twelfth 

District in order to preserve the “racial balance” of the 1997 

Plan is an admission of racial motive, not a defense against it. 

At the least, it is additional evidence of the General Assembly’s 

racial intent. 

5. North Carolina legislators who had no motive to conceal 

the use of race testified that race predominated in the formation 

of the 1997 Plan’s Twelfth District. 

In their “rigorous review of the record and decision 

below,” Appellants’ Brief at 16, Appellants and their allies also 

do not mention that the district court had the benefit of the 

direct testimony of several witnesses who were members of the 

  

Likewise, in the Voting Rights Act context, incumbency 
protection can not be used as a bar to providing a full remedy for a 

Section 2 violation. Jeffers v. Clinton, 756 F.Supp. 1195, 1203 (D. Ark. 

1990) (three-judge court), aff’d 498 U. S. 1019 (1991); Terrazas v. 
Clements, 581 F.Supp. 1329, 1356 (W.D.Tex. 1984) (three-judge court). 

Also, where “racial or ethnic communities were split to assure a safe seat 

for an incumbent, there is a strong inference - indeed a presumption - that 
this was the result of intentional discrimination.” Garza v. County of Los 
Angeles, 918 F.2d 763, 779 (9th Cir. 1990) (Kozinski, J., concurring in 
part and dissenting in part). See also Rybicki v. State Bd. Of Elections, 
574 F.Supp. 1082, 1109 (N.D. Ill. 1982) (three-judge court) (“to maintain 
a safe, primarily white district” for incumbent indicates a purpose to 
practice racial discrimination); Ketchum v. Byrne, 740 F.2d 1398, 1408 

(7th Cir. 1984).  



  

46 

General Assembly and who testified that race predominated in 

the formation of the Twelfth District of the 1997 Plan. See id. 

These legislators had no motive to conceal the use of race in the 

Twelfth and First District obvious to any objective observer of 

the North Carolina political scene.” As Senator Blust stated in 
the Senate Chamber, “there were just two factors that went into 

developing this plan - one was protecting incumbents, the other 

was race.” Jt. App. at 478. 

Appellants assert that North Carolina’s 1997 

redistricting plan does not “convey the message that ‘political 

identity is, or should be, predominantly racial.” Appellants’ 

Brief at 13, citing Bush v. Vera, 517 U.S. 952, 980 (1996) 

(O'Connor, J., plurality opinion). However, the racial message 

emanating from District 12, even later in its more compact 1998 

version, was clearly received by that District’s own 

representative and his campaign committee and staff as they 

communicated with and campaigned to voters whom they 

defined on the basis of race. Those whose livelihoods 

depended on getting their candidate elected targeted African- 

American voters through direct mail, African-American 

newspapers, and radio stations chosen because of their 

predominantly African-American audience. See Jt. App. at 

578-583. See also Shaw v. Hunt, 861 F. Supp. 408, 478 n.5 

(E.D.N.C. 1994) (Voorhees, J. dissenting), rev'd, Shaw v. Hunt, 

  

Senator Hamilton Horton, who represented Forsyth County, 
testified that the Twelfth District was created predominately with a racial 
motive. Appellants’ J.S. App. at 5a. He further testified that the Twelfth 
Districts boundaries reflected its racial predominance in Forsyth County 
by splitting Winston-Salem along racial lines. Jt. App. at 25-32. 
Representative Steve Wood, who was the Speaker pro fem. of the House, 

testified that “the 1997 Plan divided High Point and Guilford County 
along racial lines for a predominantly racial motive.” Appellants’ J.S. 
App. at 6a. Finally, Representative John Weatherly also testified that the 
Twelfth District was drawn for predominantly racial reasons. 

   



47 

517 U.S. 899 (1996). 

Thus, someone who pays attention to politics in North 

Carolina still receives the same racial message today from the 

1997 District as he or she did from the 1992 District. As 
plaintiff Jake Froelich put it, “[i]t is still doing the same - much 

the same thing . . . trying to interconnect areas that are not 

interconnected any other way, trying to do it solely to 

accomplish a racial purpose.” Jt. App. at 680. Or in the words 

of Rep. Michaux, an African-American legislator quoted 

previously in Shaw v. Reno, 509 U.S. 630, 636 (1993), “[a]ll 

you have done with the 12" District in this bill is knock sixty 

miles off it.” Jt. App. at 469. 

D. The context of this case is relevant to the issues of 

predominantly race based motive and credibility. 
The district court specifically declined to consider the 

similarity of the 1992 and 1997 plans in evaluating the legality 

of the latter plan. However, in this instance where the plan is 

purported to remedy a prior unconstitutional racial 

gerrymander, the Court may consider the 1992 plan. In that 

event, the strength of Appellees’ showing of racial 

predominance is enhanced. 

1. The shape of the 1997 Twelfth District stems from the 

unconstitutional maximization policy of the Department of 

Justice. 
Although the Department of Justice did not deny 

preclearance for the 1997 plan, its refusal to preclear an earlier 

plan in 1991, Ex. 222, set in motion the chain of events leading 

to the present 1997 racial gerrymander of the Twelfth District. 

Moreover, its heavy hand was still very much on the minds of 

the legislators as they drew up the 1997 Plan. See Jt. App. at 
392, 405, 407, 407-408, 443, 464, 470-471, 475. Cf., ACLU 

Brief at 7 n.7. The Department of Justice’s illegal  



  

a 

maximization policy helps explain why the General Assembly 

enacted a 1992 and 1997 plan which linked Mecklenburg 

County to Forsyth County and Guilford County, which had not 

been done for almost 200 years. To claim now that a district 

following this pattern and maximizing the African-American 

population in these cities was not primarily drawn for racial 
purposes strains credulity. 

2. The credibility of Appellants’ defense suffers further 

from its prior application to the unconstitutional 1992 Twelfth 

District, for Appellants have recycled almost every argument in 

defense of that district point by point. 

In defending the 1997 Twelfth District, Appellants have 

recycled virtually every argument used in defense of its 

unconstitutional predecessor, the 1992 Twelfth District. 

First, Appellants have severely criticized the district 

court in this case for failing to accord proper deference to the 

General Assembly, ignoring the presumption of good faith it is 
entitled to, and substituting its political judgment for the 

legislature. Similarly, in 1995 Appellants criticized the Shaw 
District Court’s finding of a racial motivation because it 

“inappropriately restricted the broad ‘discretion’ and 
‘presumption of good faith’ federalism accords legislatures in 

creating electoral districts and in resolving the ‘complex 

interplay of forces that enter a legislature’s redistricting 

calculus.”” Brief on the Merits for Appellees at 32, Shaw v. 

Hunt, 517 U.S. 899 (1996) (citing Miller v. Johnson, 115 S.Ct. 

at 2488.) 
Second, Appellants now claim that politics is the 

primary factor causing the location and shape of the 1997 

Twelfth District. In 1995 the Court was similarly informed that 

“politics was a primary factor causing the location and shapes 

of Districts 1 and 12.” Brief on the Merits for Appellees at 35, 

Shaw v. Hunt, 517 U.S. 899 (1996). 

   



49 

Third, Appellants now claim that there was a mix of 

factors other than race which was the true predominating 

motivation of the formation of the 1997 Twelfth District. 

Similarly, Appellants argued to the Court in 1995 that race was 

not the predominant factor in the formation of the 1992 Twelfth 

District, but “[i]nstead, the evidence unequivocally establishes 

that the line drawing process was motivated by six factors 

operating in tandem.” Id. at 34. 
Fourth, Appellants now claim that one of the major 

factors in the formation of the 1997 Twelfth District is 

incumbency protection. In 1995, the Court was similarly 

informed that one of the major factors in the formation of the 

1992 Twelfth District was “the protection of incumbents of 

both parties.” Id. at 34. 
Fifth, Appellants now claim that the formation of the 

1997 Twelfth District was a part of a greater scheme to retain 

the partisan balance of the previous plan. Similarly, Gerry 

Cohen, the draftsman of the 1992 plan, testified at the Shaw 

trial that it, too, was constructed to retain the partisan balance 

of the 1980s. See Jt. App. at 809. 
Sixth, Appellants now claim that the Twelfth District 

was formed to be a “Democratic island in a Republican sea.” 

Similarly, the Court was informed in 1995 that the location of 

the unconstitutional 1992 District 12 is “directly attributable to 

the decisions of the leadership of the redistricting committees 

(1) to construct a Democratic district from the Republican 

leaning counties of the Piedmont . . ..” Brief on the Merits for 

Appellees at 17, Shaw v. Hunt, 517 U.S. 899 (1996). 
Seventh, Appellants now claim that even though the 

1997 Twelfth District splits all of its counties and cities, great 

care was taken to avoid splitting precincts. Similarly, in 1995 

this Court was told that “neither district [1 or 12] adheres 

strictly to county, city or town boundaries, but both districts 

closely adhere to precinct and census block lines.” Id. at 18.  



  

50 

Likewise in the course of this case, Appellants have 

recycled their arguments about the communities of interest of 

the Twelfth District, its “functional” rather than geographic 

compactness, its racial fairness, its urban, as opposed to rural 

character, its ease of communication and transportation, and its 

historic underpinnings in the North Carolina Railroad. See id. 

at 18-24, 34-36. 
This remarkable similarity of argument raises the 

question: If these same defenses did not prevent the 1992 

Twelfth District from being found unconstitutional, why should 

they prevent the 1997 Twelfth District from being found 

unconstitutional? Furthermore, not only have these defenses 

covered both the 1992 and 1997 Twelfth Districts, many of 

them were further recycled to support the 1998 Twelfth District. 

See Ex. 146 (1998 Section 5 Submission). Thus, these 

boilerplate defenses have been used to defend three different 

plans. See Jt. App. at 500-502. They should fail now as to the 

1997 Plan for the same reasons they failed in Shaw: the 

existence of explicit racial targets and the subordination of 

traditional districting principles to race. 

II. NO COMPELLING GOVERNMENTAL INTEREST 

EXISTS FOR THE 1997 PLAN’S TWELFTH DISTRICT. 

Contrary to the position taken by Appellant-Intervenors, 

Appellant-Intervenors’ Brief at 28-31, compelling government 

interest is not an issue in this case. Neither Appellants nor 
Appellant-Intervenors ever presented at trial any factual or legal 

contention that a compelling government interest supported the 

creation of the Twelfth District in the 1997 Plan. Cf. Pleading 
160, Final Pretrial Order at 25-27 (claiming a compelling 

government interest for the First Congressional District). To 

the contrary, Appellants made quite clear at trial that they were 

not claiming that the Twelfth District was supported by a 

compelling interest. There, the Appellants’ lead counsel - with 

   



51 

no dissent from Appellant-Intervenors’ attorneys who were 

seated at her side - stated “we’re not arguing compelling state 

interest” with regard to the Twelfth District. Jt. App. at 23-24. 

Furthermore, counsel for Appellant-Intervenors in his closing 

argument stated that “[Appellants’ lead counsel] covered our 

position,” Jt. App. at 269, and remarked that “once we 

understood the law after Shaw v. Hunt, that there couldn’t be - 

there was no basis for a majority-minority district in the 12*.” 

Jt. App. at 269. See also Tr. at 562. Thus, the district court 

was correct to find that “no evidence of a compelling state 
interest in utilizing race to create the new 12" District has been 

presented and even if such interest did exist, the 12" District is 

not narrowly tailored and therefore cannot survive the 

prescribed ‘strict scrutiny.” Appellants’ J.S. App. at 29a. 

Because this issue was not raised, and in fact was disavowed by 

the Appellant-Intervenors at trial, it is not properly before the 

Court. See Jt. App. at 269. "[T]o preserve an argument for 

appeal the litigant must press and not merely intimate the 

argument during the proceedings before the district court." 

FDIC v. Majalis, 15 F.3d 1314 (5th Cir. 1994).% 

Appellant-Intervenors refer to North Carolina’s past 

history of official discrimination against African-Americans 

and their exclusion from the political process due to state and 

private action. Appellant-Intervenors’ Brief at 30. There is no 

suggestion in the record that the Legislature in 1997, any more 

than in 1992, adopted this plan to further “an interest in 

remedying the effects of past or present discrimination.” Shaw 

v. Hunt, 517 U.S. 899, 909-10 (1996). In any event, “to 

alleviate the effects of societal discrimination is not a 

compelling interest.” Id. at 909-910 (citing Wygant v. Jackson 

  

“Nonetheless, Appellees offered substantial evidence at trial of 
an absence of narrow tailoring. Jt. App. 314-15; Weber dep. 329-30; Tr. 

157-68 (Jt. App. 89-94).  



  

52 

Bd. of Ed., 476 U.S. 267, 274-275, 276,288 (1986)). Nowhere 

does the State or any other party specifically identify the 

continuing effects of past discrimination which might constitute 

a compelling interest or how the Twelfth District of the 1997 

Plan is narrowly tailored to achieve it. Cf. Bush v. Vera, 517 

U.S. 952, 981-82 (1996) (O’Connor, J., plurality opinion). 

Moreover, there was no bona fide claim at trial - nor is there 
now - that Section 2 or Section 5 of the Voting Rights Act, 42 

U.S.C. §1973 (1994), could have supported a new black district 

in the Piedmont, either in 1992 or 1997. 4! 
In fact, Appellant-Intervenors’ mistaken suggestion that 

North Carolina was required to create a race-based Twelfth 

District amounts to an admission by them that the district had 

to be - and was - race-based. 

  

"In addition Appellant-Intervenors have distorted the stipulation 
as to the relevant Gingles factors. See Thornburg v. Gingles, 478 U.S. 

306 (1986). They have represented to the Court that “[p]laintiffs 

stipulated for purposes of trial that . . . 2) the white majority votes 

sufficiently as a bloc to enable it often to defeat the minority’s preferred 
candidate.” Appellant-Intervenors’ Brief at 11. However, this stipulation 
was only for the First District in rural, Eastern North Carolina, not the 

Twelfth in the more urban, Piedmont area. “For purposes of this trial, the 

parties stipulate and agree that should it become material during the trial 
with respect to the drawing of the First Congressional District whether 

these Gingles preconditions exist . . . .” Pleading 125, Proposed 
Discovery Plan of July 14, 1999 at § 8. Thus, the suggestion by the 

Appellant-Intervenors that these stipulations related to the Twelfth 

District or the Piedmont area in general is simply not true. Indeed, white 

crossover voting for black-preferred candidates in general elections for 
the area of District 12 ranges from a low of 35.1% to a high of 41.8%. Jt. 
App. 90, 365. See also Tr. at 169-70. Also, African-Americans make up 

a larger share of the District’s registered voters than their proportion in 
the voting age population. Appellants’ J.S. App. at 78a-79a. 

   



53 

III. APPELLANTS’ DEFENSE OF CLAIM PRECLUSION 

LACKS MERIT. 
For preclusion, Appellants rely on an order entered on 

September 12, 1997 in the Shaw litigation which allowed use 

of the 1997 Plan as a remedy for the violation of the rights of 

those Shaw plaintiffs who were registered voters in the 1992 

Plan’s Twelfth District. However, the terms of the order itself 
make clear that the Shaw court did not intend to adjudicate 

challenges of the constitutionality of the 1997 Plan made by 

persons who had not been held to be entitled to relief in the 

Shaw litigation. See Appellants’ J.S. App. at 320a. 

In an effort to evade that order and to forum shop, 

Appellants then moved the Shaw court to consolidate and 

dispose of challenges to the 1997 Plan that were being made in 

the Cromartie litigation and in Daly v. High, which also 
challenged North Carolina’s Congressional redistricting as well 

as its legislative reapportionment. The Shaw court summarily 

denied the State’s motion, see Jt. App. at 803, and no appeal 
was taken. That ruling is another bar to Appellants’ effort to 

assert that challenges to the 1997 Plan had to be asserted before 

the Shaw panel in the district court. 
In any event, Appellants’ defense of claim preclusion 

is meritless because that defense requires: (1) a final judgment 

on the merits, (2) the same claim or claims, and (3) the same 

parties. Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 

398 (1981); Cromwell v. County of Sac. 94 U.S. 351 (1876). 

Appellants can not ‘establish any of these three elements. The 

language of the Memorandum Opinion entered by the Shaw 

court on September 12, 1997, makes clear that it is not a “final 

judgment” as to the constitutionality of the 1997 Plan’s Twelfth 

District. Instead, its language is carefully confined to deciding 

that the Twelfth District was an adequate remedy for violating 

the Equal Protection rights of those Shaw plaintiffs who resided 

in the 1992 Plan’s Twelfth District. Because the 1997 Plan  



  

54 

removed these persons and their entire county from the Twelfth 

District, they have no standing and their claim as to the current 

Twelfth District is non-existent. At least, it is quite different 

from the claim presented by registered voters from cities and 

counties cut apart by that District. Cf. United States v. Hays, 

515 U.S. 737 (1995) (discussing standing rules for Shaw 

plaintiffs). The parties are also not the same. Appellees J.H. 

Froelich, R.O. Everett, and Ronald Linville were not parties to 

the Shaw litigation; and therefore were not precluded by the 

Shaw panel’s order. 

.Because identity of parties is lacking, Appellants seek 

to invoke a theory of “virtual representation,” contending that 

the plaintiffs had been “virtually represented” by attorney 

Robinson O. Everett, who is counsel of record in the Cromartie 
case and had been a plaintiff and counsel in the Shaw litigation. 

However, this contention ignores the circumstance that, under 

the holding in Shaw v. Hunt, 517 U.S. 899, 904 (1996), 

Robinson Everett lacked standing to be a plaintiff in that case 

because he did not reside within the 1992 Plan’s Twelfth 

District. Thus, he could not have “represented” the interests of 

the Cromartie Twelfth District plaintiffs, even had he sought to 

do so. Even if “virtual representation” had existed in this case, 

the bottom line is that the other two elements of claim 

preclusion are still lacking. Thus, the Court should reject this 

defense as has every judge who has ever considered it. 

IV. THE DISTRICT COURT ACTED WELL WITHIN 

ITS EQUITABLE DISCRETION. 
Appellant-Intervenors complain that the district court 

was too slow to schedule discovery, too quick to hold the trial, 

too slow to issue its opinion, too late to order a remedy, and too 

intrusive in granting relief. See Appellant Intervenors’ Brief at 

31. However, these are matters well within the equitable 

discretion of the district court. Moreover, although they cite a 

   



55 

number of cases where district courts, in their equitable 

discretion, made certain decisions as to the relief granted and 

the timing involved, they still have not cited any case, nor are 

Appellees aware of any, where a district court’s exercise of its 

equitable discretion was held to have been abused for enjoining 

the use of an unconstitutional redistricting or reapportionment 

plan. 
Indeed, “once a State’s legislative apportionment 

scheme had been found to be unconstitutional, it would be the 

unusual case in which a Court would be justified in not taking 

appropriate action to insure that no further elections are 

conducted under the invalid plan.” Reynolds v. Sims, 377 U.S. 

533,585 (1964). Appellees doubt that in this context “unusual” 

includes cases in which a state has unduly protracted litigation 

and has refused to acknowledge the unconstitutionality of its 

actions. ; 
In 1996, in Texas a primary election was set aside and 

a special election held in thirteen redrawn districts in 
conjunction with the high-turnout Presidential election, and a 

run-off in those few districts which required it. See Vera v. 

Bush, 933 F.Supp. 1341, 1351 (S.D. Tex. 1996), stay denied 

sub nom. Bentsen v. Vera, 518 U.S. 1048 (1996). In North 

Carolina an injunction prohibiting use of the 1997 Plan took 

effect in April 1998, closer to the primaries than the injunction 

entered by the court below after the trial. Moreover, the 1998 

plan was enacted later in May 1998; but nonetheless in the 

districts affected primaries were conducted in September and 

general elections were held at the regular time in November. In 
this case, had a stay order not been entered, a primary in the 

districts affected by the invalidation of District 12 could have 

been accomplished in conjunction with the statewide second 

primary which was scheduled for May 30, 2000. 
Neither Appellants nor Appellant-Intervenors have any 

legal basis for their extraordinary contention that this Court  



  

56 

should preempt the exercise of the district court’s equitable 

discretion. See Lemon v. Kurtzman, 411 U.S. 192, 200 (1973). 

Generally, “[o]nce a constitutional violation has been found, a 

district court has broad discretion to fashion an appropriate 

remedy.” Karcher v. Daggett, 466 U.S. 910, 910 (1984) 

(Stevens, J. concurring). This discretion is usually entrusted to 

the district court in the first instance. See Perkins v. Matthews, 

400 U.S. 379, 396-97 (1971). In light of all the circumstances 

here, including Appellants’ unwillingness to remedy their racial 

gerrymandering, no basis exists to overturn the district court’s 

decision.*? 

CONCLUSION 
Appellants and their allies seek to overturn Shaw v. 

Reno, 509 U.S. 620 (1993), or failing that, to introduce such 

limitations on its application as to make it a dead letter. 

However, the values protected by Shaw are fundamental and 

should not be ignored. Nor should the tactics of Appellants in 

seeking to avoid the teachings of Shaw be endorsed. While the 

authority of a state legislature should not be minimized, neither 

should the role and responsibility of the federal courts be 

disregarded in protecting the right to vote - the most 

fundamental right of citizenship in our republic.* Appellants’ 

  

“Appellants and Appellant-Intervenors seek to raise an issue as 
to the exercise of discretion of the lower court if the Court upholds its 
judgment that the Twelfth District is unconstitutional. That issue is 
premature and should instead be considered by the lower court. 

“Because of the importance of voting rights in a democracy, 
Appellees submit that those rights deserve the protection afforded by the 

approach used in Arlington Heights v. Metropolitan Housing Dev. Corp., 

429 U.S. 252 (1977), where racial motive need not be shown to be the 

predominant motive but only a cause. 429 U.S. 252 (1977). Likewise, 
the State should bear the burden of proving that the “taint” of a racial 

   



57 

massive resistance to the teachings of Shaw should not be 

rewarded or tolerated. Instead, the judgment of the district 

court should be affirmed. 

Respectfully submitted, 

MARTIN B. MCGEE ROBINSON O. EVERETT* 

WILLIAMS, BOGER SETH A. NEYHART 

GRADY, DAVIS & TUTTLE EVERETT & EVERETT 

708 McLain Rd. P.O. Box 586 
Kannapolis, NC 28081 Durham, NC 27702 

(704) 932-3157 (919) 682-5691 

DOUGLAS E. MARKHAM 

P.O. BOX 130923 

Houston, TX 77219-0923 

(713) 655 - 8700 

*Counsel of Record 

October 6, 2000 Attorneys for Appellees 

  

gerrymander has been removed. However, in this case, the evidence of 

racial intent is so strong that the burden of proof is immaterial to the 

correct outcome.  



  
 



APPENDIX 

 



 
 

  
 



  

  

  

5a 

APPELLEES’ OBJECTION AS TO AUTHENTICITY 

AND ADMISSIBILITY OF MAPS ORIGINALLY 

APPEARING IN APPELLANTS’ BRIEF ON THE 

MERITS AT 1a-3a. 

Appellees hereby object to the authenticity of three 

maps appearing in the appendix to Appellants’ Brief on the 

. Merits at 1a-3a. These appeared for the first time in this 
lawsuit in Appellants’ Brief on the Merits and were never 

placed into evidence or subjected to the evidentiary review of 

the district court. 

These maps purport to be drawn on the basis of Joint 

Exhibits 107-109, which Appellants have lodged with the 

Court. Joint Exhibits 107-109, inter alia, depict the 

Democratic Party registration percentages by precinct for 

Forsyth, Guilford, and Mecklenburg Counties, with the 

boundary of the Twelfth District overlaid. The legend for the 

Appellants’ new maps indicate that the precincts are to be 

marked red and not blue if they are “District 12 Precincts With 

Lower Democratic Registration Than One or More Adjacent 

Non-District 12 Precincts.” Appellants’ Brief on the Merits at 

la-3a. 

Appellees’ counsel, upon examination of Exhibits 107- 

109, determined that at least five precincts in these maps are 

colored in error. Moreover, the errors consistently support the 
Appellants’ position, i.e. precincts are marked blue which 

according to the legend should be red. 

In Guilford County, Ex. 107, Greensboro 33 has a 
Democratic registration number of 66.162% and is adjacent to 
a precinct outside of District 12 with a Democratic registration 

number of 66.22%. Greensboro 36 has a Democratic 

registration number of 52.279% and is adjacent to a precinct 
outside of District 12 with a Democratic registration number of 

59.679%. Jamestown 2 has a Democratic registration number 

of 47.21% and is adjacent to a precinct outside of District 12  



  

6a 

with a Democratic registration number of 47.989%. Finally, 

Jamestown 1 has a Democratic registration number of 44.74% 

and is adjacent by point contiguity to a precinct outside of 

District 12 with a Democratic registration number of 45.102%. 

Appellants colored these four precincts blue and not red. See 

Appellants’ Brief at 2a. 

In Mecklenburg County, Ex. 109, Charlotte 61 has a 

Democratic registration number of 57.883% and is adjacent to 

a precinct outside of District 12 with a Democratic registration 

number of 59.098%. CO2 has a Democratic registration 
number of 47.954% and is adjacent to a precinct outside of 

District 12 with a Democratic registration number of 54.498%. 

It also borders two additional precincts outside of District 12 
with Democratic registration numbers of 51.258% and 

49.592%. Appellants have colored these precincts blue and not 

red. See Appellants’ Brief at 3a. 
Appellees’ counsel called some of these errors to the 

attention of lead counsel for Appellants in a letter dated 

September 25, 2000 and requested her to take steps to correct 

these maps. She declined to do so. In a letter dated September 
27, 2000, she informed counsel for appellees of her belief that 

“the illustrations are accurate.” She wrote that “[w]ith regard 

to the four questioned precincts, it appears that you contend 

there should be an additional category of precincts depicted, i.e. 

precincts which also share a small portion (less than one-half) 

of their boundaries with an adjacent non-District 12 precinct 

with a higher Democratic registration.” Accordingly, she 

informed counsel for Appellees that “your demand that the 

maps be ‘corrected’ to include additional information is 

unreasonable and unnecessary.” 
Appellees have not demanded or asked the Appellants 

to add or subtract a category of precincts to their maps, nor do 

Appellees believe they have aright to do so. Rather, Appellees 

have only requested that every precinct colored in Appellants’ 

maps be colored correctly and accurately according to the 

    

  

 



  

7a 

categories stated in their legend. Moreover, one of the 

erroneously colored precincts, CO2 in Mecklenburg County, is 

bordered by not only one, but three precincts outside of District 

12 that have higher Democratic registration numbers. 

For the above stated reasons, Appellees object to the 

authenticity of these maps and respectfully pray the Court that 

they not be considered unless corrected.