Correspondence between Clerks Re: Hunt v. Cromartie Syllabus and Court Opinion

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®ffice of the Clerk 

Supreme Qonrt of the United States 
Washington, B. ¢. 205%3-0001 

April 18, 2001 
(Revised Letter) 

Clerk 

United States District Court 

for the Eastern District of North Carolina 

1760 Parkwood Blvd. 

P.O. Drawer 2807 

Wilson, N.C. 27893 

Re: 99-1864) - Hunt v. Cromartie 

99-1865) - Smallwood v. Cromartie 

(Your Docket No. 4:96-CV-104-BO(3) 

Dear Clerk of Court: 

The enclosed opinion of this Court was announced today in the above stated case. 

The judgment will issue after the expiration of 25 days from the date of the Opinion 

unless a timely petition for rehearing is filed. 

Sincerely, 

WILLIAM K. SUTER, CLERK 

Denise J. McNerney 

Merits Cases Clerk 

(202) 479-3032 

Todd A. Cox, Esq. 

Robinson O. Everett, Esq. 
Tiare Smiley, Esq. 

Adam Stein, Esq. 
Walter E. Dellinger, Esq.  



®ffice of the (lerk 

Supreme Qonrt of the Vnited States 

Washington, B. ¢. 20543-0001 

April 18, 2001 

Clerk 

United States District Court 

for the Eastern District of North Carolina 

1760 Parkwood Blvd. 

P.O. Drawer 2807 

Wilson, N.C. 27893 

Re: 99-1864) - Hunt v. Cromartie 

99-1865) - Smallwood v. Cromartie 

(Your Docket No. 4:96-CV-104-BO(3) ) 

Dear Clerk of Court: 

The enclosed opinion of this Court was announced today in the above stated case. 

The mandate issued today pursuant to Court order. 

Sincerely, 

WILLIAM K. SUTER, CLERK 

Denise J. McNerney 

Merits Cases Clerk 

(202) 479-3032 

Todd A. Cox, Esq. 

Robinson O. Everett, Esq. 

Tiare Smiley, Esq. 

Adam Stein, Esq. 

Walter E. Dellinger, III, Esq.  



# # 

  

(Bench Opinion) OCTOBER TERM, 2000 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is 
being done in connection with this case, at the time the opinion is issued. 
The syllabus constitutes no part of the opinion of the Court but has been 
prepared by the Reporter of Decisions for the convenience of the reader. 
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

HUNT, GOVERNOR OF NORTH CAROLINA, ET AL. v. 
CROMARTIE ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 
EASTERN DISTRICT OF NORTH CAROLINA 

No. 99-1864. Argued November 27, 2000—Decided April 18, 2001* 

After this Court found that North Carolina’s legislature violated the 

Constitution by using race as the predominant factor in drawing its 
Twelfth Congressional District's 1992 boundaries, Shaw v. Hunt, 517 

U.S. 899, the State redrew those boundaries. A three-judge District 
Court subsequently granted appellees summary judgment, finding 

that the new 1997 boundaries had also been created with racial con- 
siderations dominating all others. This Court reversed, finding that 

there was a genuine issue of material fact as to whether the evidence 
was consistent with a race-based objective or the constitutional po- 

litical objective of creating a safe Democratic seat. Hunt v. Cromartie, 

526 U.S. 541. Among other things, this Court relied on evidence pro- 
posed to be submitted by appellants to conclude that, because the 
State’s African-American voters overwhelmingly voted Democratic, 

one could not easily distinguish a legislative effort to create a major- 

ity-minority district from a legislative effort to create a safely Demo- 

cratic one; that data showing voter registration did not indicate how 

voters would actually vote; and that data about actual behavior could 

affect the litigation’s outcome. Id., at 547-551. On remand, the Dis- 

trict Court again held, after a 3-day trial, that the legislature had used 
race driven criteria in drawing the 1997 boundaries. It based that con- 

clusion on three findings—the district’s shape, its splitting of towns 

and counties, and its heavily African-American voting population— 

that this Court had considered when it found summary judgment inap- 
  

*Together with No. 99-1865, Smallwood et al. v. Cromartie et al., 

also on appeal from the same court. 

 



  

HUNT v. CROMARTIE 

Syllabus 

propriate, and on the new finding that the legislature had drawn the 
boundaries to collect precincts with a high racial, rather than political, 
identification. 

Held: The District Court’s conclusion that the State violated the Equal 

Protection Clause in drawing the 1997 boundaries is based on clearly 

erroneous findings. Pp. 5-23. 
(a) The issue here is evidentiary: whether there is adequate sup- 

port for the District Court’s finding that race, rather than politics, 

drove the legislature’s districting decision. Those attacking the dis- 
trict have the demanding burden of proof to show that a facially neu- 
tral law is unexplainable on grounds other than race. Cromartie, su- 

pra, at 546. Because the underlying districting decision falls within a 
legislature’s sphere of competence, Miller v. Johnson, 515 U. S. 900, 
915, courts must exercise extraordinary caution in adjudicating claims 

such as this one, id., at 916, especially where, as here, the State has ar- 

ticulated a legitimate political explanation for its districting decision 
and the voting population is one in which race and political affiliation 

are highly coordinated, see Cromartie, supra, at 551-552. This Court 

will review the District Court's findings only for “clear error,” asking 
whether “on the entire evidence” the Court is “left with the definite and 
firm conviction that a mistake has been committed.” United States v. 
United States Gypsum Co., 333 U. S. 364, 395. An extensive review of 

the District Court's findings is warranted here because there was no in- 

termediate court review, the trial was not lengthy, the key evidence 

consisted primarily of documents and expert testimony, and credibility 
evaluations played a minor role. Pp. 5-7. 

(b) The critical District Court determination that “race, not politics,” 

predominantly explains the 1997 boundaries rests upon the three find- 

ings that this Court found insufficient to support summary judgment, 

and which cannot in and of themselves, as a matter of law, support the 

District Court’s judgment here. See Bush v. Vera, 517 U. S. 952, 968. 
Its determination also rests upon five new subsidiary findings, which 
this Court also cannot accept as adequate. First, the District Court 
primarily relied on evidence of voting registration, not voting behav- 
ior, which is precisely the kind of evidence that this Court found in- 

adequate the last time the case was here. White registered Demo- 

crats “cross-over” to vote Republican more often than do African- 
Americans, who register and vote Democratic between 95% and 97% 

of the time. Thus, a legislature trying to secure a safe Democratic 

seat by placing reliable Democratic precincts within a district may 

end up with a district containing more heavily African-American pre- 

cincts for political, not racial, reasons. Second, the evidence to which 

appellees’ expert, Dr. Weber, pointed—that a reliably Democratic 

voting population of 60% is necessary to create a safe Democratic 

 



  

Cite as: 532 U.S. (2001) 3 

Syllabus 

seat, but this district was 63% reliable; that certain white-Democratic 

precincts were excluded while African-American-Democratic pre- 

cincts were included; that one precinct was split between Districts 9 

and 12; and that other plans would have created a safely Democratic 
district with fewer African-American precincts—simply does not pro- 

vide significant additional support for the District Court’s conclusion. 

Also, portions of Dr. Weber's testimony not cited by the District Court 

undercut his conclusions. Third, the District Court, while not ac- 

cepting the contrary conclusion of appellants’ expert, Dr. Peterson, 

did not (and as far as the record reveals, could not) reject much of the 

significant supporting factual information he provided, which showed 

that African-American Democratic voters were more reliably Demo- 

cratic and that District 12’s boundaries were drawn to include reli- 

able Democrats. Fourth, a statement about racial balance made by 

Senator Cooper, the legislative redistricting leader, shows that the 
legislature considered race along with other partisan and geographic 

considerations, but says little about whether race played a predomi- 
nant role. And an e-mail sent by Gerry Cohen, a legislative staff 
member responsible for drafting districting plans, offers some sup- 

port for the District Court’s conclusion, but is less persuasive than 

the kinds of direct evidence that this Court has found significant in 

other redistricting cases. Fifth, appellees’ maps summarizing voting 
behavior evidence tend to refute the District Court’s “race, not poli- 

tics,” conclusion. Pp. 7-22. 
(c) The modicum of evidence supporting the District Court’s conclu- 

sion—the Cohen e-mail, Senator Cooper's statement, and some aspects 

of Dr. Weber's testimony—taken together, does not show that racial 
considerations predominated in the boundaries’ drawing, because race 
in this case correlates closely with political behavior. Where majority- 

minority districts are at issue and racial identification correlates highly 

with political affiliation, the party attacking the boundaries must show 
at the least that the legislature could have achieved its legitimate politi- 
cal objectives in alternative ways that are comparably consistent with 

traditional districting principles and that those alternatives would have 
brought about significantly greater racial balance. Because appellees 

failed to make any such showing here, the District Court's contrary 
findings are clearly erroneous. Pp. 22-23. 

Reversed. 

BREYER, J., delivered the opinion of the Court, in which STEVENS, 

O’CONNOR, SOUTER, and GINSBURG, JdJ., joined. THOMAS, J., filed a dis- 
senting opinion, in which REHNQUIST, C. J., and SCALIA and KENNEDY, 
JdJ., joined. 

 



Cite as: 532 U. S. (2001) 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the 
preliminary print of the United States Reports. Readers are requested to 
notify the Reporter of Decisions, Supreme Court of the United States, Wash- 
ington, D. C. 20543, of any typographical or other formal errors, in order 
that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

Nos. 99-1864 and 99-1865 

JAMES B. HUNT, Jr., GOVERNOR OF NORTH 
CAROLINA, ET AL., APPELLANTS 

99-1864 v. 
MARTIN CROMARTIE ET AL. 

ALFRED SMALLWOOD, ET AL., APPELLANTS 
99-1865 . 

MARTIN CROMARTIE ET AL. 

ON APPEALS FROM THE UNITED STATES DISTRICT COURT FOR 
THE EASTERN DISTRICT OF NORTH CAROLINA 

[April 18, 2001] 

JUSTICE BREYER delivered the opinion of the Court. 

In this appeal, we review a three-judge District Court’s 

determination that North Carolina’s legislature used race 

as the “predominant factor” in drawing its 12th Congres- 

sional District's 1997 boundaries. The court’s findings, in 

our view, are clearly erroneous. We therefore reverse its 

conclusion that the State violated the Equal Protection 

Clause. U. S. Const., Amdt. 14, §1. 

I 

This “racial districting” litigation is before us for the 
fourth time. Our first two holdings addressed North 

Carolina’s former Congressional District 12, one of two 

North Carolina congressional districts drawn in 1992 that 

contained a majority of African-American voters. See  



HUNT v. CROMARTIE 

Opinion of the Court 

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

Hunt, 517 U. S. 899 (1996) (Shaw II). 

A 

In Shaw I, the Court considered whether plaintiffs’ 

factual allegation—that the legislature had drawn the 
former district's boundaries for race-based reasons—if 

true, could underlie a legal holding that the legislature 

had violated the Equal Protection Clause. The Court held 

that it could. It wrote that a violation may exist where the 

legislature’s boundary drawing, though “race neutral on 

its face,” nonetheless can be understood only as an effort 

to “separate voters into different districts on the basis of 

race,” and where the “separation lacks sufficient justifica- 

tion.” 509 U. S., at 649. 

In Shaw II, the Court reversed a subsequent three-judge 
District Court’s holding that the boundary-drawing law in 

question did not violate the Constitution. This Court 

found that the district's “unconventional,” snakelike 

shape, the way in which its boundaries split towns and 

counties, its predominately African-American racial make- 

up, and its history, together demonstrated a deliberate 

effort to create a “majority-black” district in which race 

“could not be compromised,” not simply a district designed 

to “protec[t] Democratic incumbents.” 517 U. S., at 902— 

903, 905-907. And the Court concluded that the legisla- 

ture’s use of racial criteria was not justified. Id., at 909- 

918. 

B 

Our third holding focused on a new District 12, the 
boundaries of which the legislature had redrawn in 1997. 

Hunt v. Cromartie, 526 U.S. 541 (1999). A three-judge 

District Court, with one judge dissenting, had granted 

summary judgment in favor of those challenging the dis-  



  

# * 

Cite as: 532 U.S. (2001) 3 

Opinion of the Court 

trict’s boundaries. The court found that the legislature 

again had “used criteria . . . that are facially race driven,” 

in violation of the Equal Protection Clause. App. to Juris. 
Statement 262a. It based this conclusion upon “uncontro- 

verted material facts” showing that the boundaries created 

an unusually shaped district, split counties and cities, 

and in particular placed almost all heavily Democratic- 

registered, predominantly African-American voting pre- 

cincts, inside the district while locating some heavily 

Democratic-registered, predominantly white precincts, 

outside the district. This latter circumstance, said the 

court, showed that the legislature was trying to maximize 

new District 12's African-American voting strength, not 

the district's Democratic voting strength. Ibid. 

This Court reversed. We agreed with the District Court 

that the new district's shape, the way in which it split 

towns and counties, and its heavily African-American 

voting population all helped the plaintiffs’ case. 526 U. S., 

at 547-549. But neither that evidence by itself, nor when 

coupled with the evidence of Democratic registration, was 

sufficient to show, on summary judgment, the unconstitu- 

tional race-based objective that plaintiffs claimed. That is 

because there was a genuine issue of material fact as to 

whether the evidence also was consistent with a constitu- 

tional political objective, namely, the creation of a safe 
Democratic seat. Id., at 549-551. 

We pointed to the affidavit of an expert witness for 
defendants, Dr. David W. Peterson. Dr. Peterson offered 

to show that, because North Carolina’s African-American 

voters are overwhelmingly Democratic voters, one cannot 

easily distinguish a legislative effort to create a majority- 

African-American district from a legislative effort to create 

a safely Democratic district. Id., at 550. And he also 

provided data showing that registration did not indicate 
how voters would actually vote. Id., at 550-551. We 
agreed that data showing how voters actually behave, not 

 



  

4 HUNT v. CROMARTIE 

Opinion of the Court 

data showing only how those voters are registered, could 

affect the outcome of this litigation. Ibid. We concluded 
that the case was “not suited for summary disposition” 

and we reversed the District Court. Id., at 554. 

C 

On remand, the parties undertook additional discovery. 

The three-judge District Court held a 3-day trial. And the 

court again held (over a dissent) that the legislature had 

unconstitutionally drawn District 12's new 1997 bounda- 

ries. It found that the legislature had tried “(1) [to] cur[e] 

the [previous district’s] constitutional defects” while also 

“(2) drawing the plan to maintain the existing partisan 

balance in the State’s congressional delegation.” App. to 

Juris. Statement 11a. It added that to “achieve the second 

goal,” the legislature “drew the new plan (1) to avoid 

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

preserve the partisan core of the existing districts.” Ibid. 
The court concluded that the “plan as enacted largely 
reflects these directives.” Ibid. But the court also found 

“as a matter of fact that the General Assembly . . . used 

criteria . . . that are facially race driven” without any 
compelling justification for doing so. Id., at 28a. 

The court based its latter, constitutionally critical, 

conclusion in part upon the district’s snakelike shape, the 

way in which it split cities and towns, and its heavily 

African-American (47%) voting population, id., at 1la— 

17a—all matters that this Court had considered when 

it found summary judgment inappropriate, Cromartie, 
supra, at 544. The court also based this conclusion upon a 

specific finding—absent when we previously considered 

this litigation—that the legislature had drawn the 

boundaries in order “to collect precincts with high racial 

identification rather than political identification.” App. to 
Juris. Statement 28a—29a (emphasis added). 

This last-mentioned finding rested in turn upon five 

 



  

# » 

Cite as: 532 U.S. (2001) 5 

Opinion of the Court 

subsidiary determinations: 

(1) that “the legislators excluded many heavily- 

Democratic precincts from District 12, even when those 

precincts immediately border the Twelfth and would 

have established a far more compact district,” id., at 

25a; see also id., at 29a (“more heavily Democratic pre- 

cincts . . . were bypassed . . . in favor of precincts with 

a higher African-American population”); 

(2) that “[a]dditionally, Plaintiffs’ expert, Dr. Weber, 

showed time and again how race trumped party affilia- 

tion in the construction of the 12th District and how 

political explanations utterly failed to explain the com- 

position of the district,” id., at 26a; 

(3) that Dr. Peterson’s testimony was “‘unreliable’ and not 

relevant,” id., at 27a (citing testimony of Dr. Weber); 

(4) that a legislative redistricting leader, Senator Roy 

Cooper, had alluded at the time of redistricting “to a 

need for ‘racial and partisan’ balance,” ibid.; and 

(5) that the Senate’s redistricting coordinator, Gerry 

Cohen, had sent Senator Cooper an e-mail reporting 

that Cooper had “moved Greensboro Black community 

into the 12th, and now need[ed] to take [about] 60,000 

out of the 12th,” App. 369; App. to Juris. Statement 
27a—28a. 

The State and intervenors filed a notice of appeal. 28 

U.S. C. §1253. We noted probable jurisdiction. 530 U. S. 

1260 (2000). And we now reverse. 

II 

The issue in this case is evidentiary. We must deter- 

mine whether there is adequate support for the District 

Court's key findings, particularly the ultimate finding that 

the legislature’s motive was predominantly racial, not 

political. In making this determination, we are aware 

that, under Shaw I and later cases, the burden of proof on 

the plaintiffs (who attack the district) is a “demanding 

 



  

6 HUNT v. CROMARTIE 

Opinion of the Court 

one.” Miller v. Johnson, 515 U.S. 900, 928 (1995) 

(O'CONNOR, d., concurring). The Court has specified that 

those who claim that a legislature has improperly used 

race as a criterion, in order, for example, to create a ma- 

jority-minority district, must show at a minimum that the 

“legislature subordinated traditional race-neutral dis- 

tricting principles . . . to racial considerations.” Id., at 916 

(majority opinion). Race must not simply have been “a 

motivation for the drawing of a majority minority district,” 
Bush v. Vera, 517 U.S. 952, 959 (1996) (O'CONNOR, d., 

principal opinion) (emphasis in original), but “the ‘predomi- 

nant factor’ motivating the legislature’s districting deci- 

sion,” Cromartie, 526 U. S., at 547 (quoting Miller, supra, 

at 916) (emphasis added). Plaintiffs must show that a 

facially neutral law “‘is “unexplainable on grounds other 

than race.””” Cromartie, supra, at 546 (quoting Shaw I, 

509 U. S., at 644, in turn quoting Arlington Heights v. 

Metropolitan Housing Development Corp., 429 U.S. 252, 

266 (1977)). 
The Court also has made clear that the underlying 

districting decision is one that ordinarily falls within a 
legislature’s sphere of competence. Miller, 515 U. S., at 

915. Hence, the legislature “must have discretion to exer- 

cise the political judgment necessary to balance competing 

interests,” itbid., and courts must “exercise extraordinary 

caution in adjudicating claims that a State has drawn 

district lines on the basis of race,” id., at 916 (emphasis 

added). Caution is especially appropriate in this case, 

where the State has articulated a legitimate political expla- 
nation for its districting decision, and the voting population 

is one in which race and political affiliation are highly 

correlated. See Cromartie, supra, at 551-552 (noting that 

“[e]lvidence that blacks constitute even a supermajority in 

one congressional district while amounting to less than a 

plurality in a neighboring district will not, by itself, suffice 

to prove that a jurisdiction was motivated by race in draw- 

 



      

» 

Citeas: 5321.85. (2001 7 

Opinion of the Court 

ing its district lines when the evidence also shows a high 

correlation between race and party preference”). 

We also are aware that we review the District Court's 

findings only for “clear error.” In applying this standard, 

we, like any reviewing court, will not reverse a lower 

court’s finding of fact simply because we “would have 
decided the case differently.” Anderson v. Bessemer City, 

470 U. S. 564, 573 (1985). Rather, a reviewing court must 

ask whether “on the entire evidence,” it is “left with the 

definite and firm conviction that a mistake has been com- 

mitted.” United States v. United States Gypsum Co., 333 

U. S. 364, 395 (1948). 
Where an intermediate court reviews, and affirms, a 

trial court’s factual findings, this Court will not “lightly 

overturn” the concurrent findings of the two lower courts. 

E.g., Neil v. Biggers, 409 U. S. 188, 193, n. 3 (1972). But in 
this instance there is no intermediate court, and we are 

the only court of review. Moreover, the trial here at issue 

was not lengthy and the key evidence consisted primarily 

of documents and expert testimony. Credibility evalua- 

tions played a minor role. Accordingly, we find that an 

extensive review of the District Court’s findings, for clear 

error, is warranted. See Bose Corp. v. Consumers Union of 

United States, Inc., 466 U. S. 485, 500-501 (1984). That 

review leaves us “with the definite and firm conviction,” 

United States Gypsum Co., supra, at 395, that the District 

Court’s key findings are mistaken. 

ITI 

The critical District Court determination—the matter 

for which we remanded this litigation—consists of the 

finding that race rather than politics predominantly ex- 

plains District 12’s 1997 boundaries. That determination 

rests upon three findings (the district’s shape, its splitting 

of towns and counties, and its high African-American 

voting population) that we previously found insufficient to 

 



  

8 HUNT v. CROMARTIE 

Opinion of the Court 

support summary judgment. Cromartie, supra, at 547— 

549. Given the undisputed evidence that racial identifica- 

tion is highly correlated with political affiliation in North 

Carolina, these facts in and of themselves cannot, as a 
matter of law, support the District Court’s judgment. See 

Vera, 517 U. S., at 968 (O'CONNOR, J., principal opinion) 
(“If district lines merely correlate with race because they 

are drawn on the basis of political affiliation, which cor- 

relates with race, there is no racial classification to jus- 

tify”). The District Court rested, however, upon five new 

subsidiary findings to conclude that District 12's lines are 

the product of no “mer[e] correlat[ion],” ibid., but are 

instead a result of the predominance of race in the legisla- 

ture’s line-drawing process. See supra, at 5. 

In considering each subsidiary finding, we have given 

weight to the fact that the District Court was familiar 

with this litigation, heard the testimony of each witness, 

and considered all the evidence with care. Nonetheless, 

we cannot accept the District Court’s findings as adequate 

for reasons which we shall spell out in detail and which we 

can summarize as follows: 

First, the primary evidence upon which the District 

Court relied for its “race, not politics,” conclusion is evi- 

dence of voting registration, not voting behavior; and that 

is precisely the kind of evidence that we said was inade- 

quate the last time this case was before us. See infra, at 

9-10. Second, the additional evidence to which appellees’ 

expert, Dr. Weber, pointed, and the statements made by 

Senator Cooper and Gerry Cohen, simply do not provide 

significant additional support for the District Court's 

conclusion. See infra, at 10-15, 17-19. Third, the District 

Court, while not accepting the contrary conclusion of 

appellants’ expert, Dr. Peterson, did not (and as far as the 

record reveals, could not) reject much of the significant 

supporting factual information he provided. See infra, at 
15-17. Fourth, in any event, appellees themselves have 

 



      

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Cite as: 532 U.S. (2001) 9 

Opinion of the Court 

provided us with charts summarizing evidence of voting 

behavior and those charts tend to refute the court’s “race 

not politics” conclusion. See infra, at 19-21; Appendixes, 

infra. 

A 

The District Court primarily based its “race, not poli- 

tics,” conclusion upon its finding that “the legislators 
excluded many heavily-Democratic precincts from District 

12, even when those precincts immediately border the 

Twelfth and would have established a far more compact 

district.” App. to Juris. Statement 25a; see also id., at 29a 

(“M]ore heavily Democratic precincts . .. were bypassed 

. in favor of precincts with a higher African-American 

population”). This finding, however—insofar as it differs 

from the remaining four—rests solely upon evidence that 

the legislature excluded heavily white precincts with high 

Democratic Party registration, while including heavily 
African-American precincts with equivalent, or lower, 

Democratic Party registration. See id., at 13a—14a, 17a. 

Indeed, the District Court cites at length figures showing 

that the legislature included “several precincts with racial 
compositions of 40 to 100 percent African-American,” 

while excluding certain adjacent precincts “with less than 

35 percent African-American population” but which con- 

tain between 54% and 76% registered Democrats. Id., at 

13a—14a. 

As we said before, the problem with this evidence is that 

it focuses upon party registration, not upon voting behav- 

ior. And we previously found the same evidence, compare 

ibid. (District Court’s opinion after trial) with id., at 249a— 

250a (District Court’s summary judgment opinion), inade- 

quate because registration figures do not accurately pre- 

dict preference at the polls. See id., at 174a; see also 

Cromartie, 526 U. S., at 550-551 (describing Dr. Peter- 

son’s analysis as “more thorough” because in North Caro- 

 



  

10 HUNT v. CROMARTIE 

Opinion of the Court 

lina, “party registration and party preference do not al- 

ways correspond”). In part this is because white voters 

registered as Democrats “cross-over” to vote for a Republi- 

can candidate more often than do African-Americans, who 

register and vote Democratic between 95% and 97% of the 

time. See Record, Deposition of Gerry Cohen 37-42 (dis- 

cussing data); App. 304 (stating that white voters cast 

about 60% to 70% of their votes for Republican candi- 

dates); id., at 139 (Dr. Weber's testimony that 95% to 97% 

of African-Americans register and vote as Democrats); see 

also id., at 118 (testimony by Dr. Weber that registration 

data were the least reliable information upon which to 

predict voter behavior). A legislature trying to secure a 

safe Democratic seat is interested in Democratic voting 

behavior. Hence, a legislature may, by placing reliable 

Democratic precincts within a district without regard to 

race, end up with a district containing more heavily Afri- 

can-American precincts, but the reasons would be political 

rather than racial. 

Insofar as the District Court relied upon voting registra- 

tion data, particularly data that were previously before us, 

it tells us nothing new; and the data do not help answer 

the question posed when we previously remanded this 

litigation. Cromartie, supra, at 551. 

B 

The District Court wrote that “[a]dditionally, [p]laintiffs’ 
expert, Dr. Weber, showed time and again how race 

trumped party affiliation in the construction of the 12th 

District and how political explanations utterly failed to 

explain the composition of the district.” App. to Juris. 

Statement 26a. In support of this conclusion, the court 

relied upon six different citations to Dr. Weber's trial 

testimony. We have examined each reference. 

 



is 

Cite as: 532 U.S. (2001) 

Opinion of the Court 

1 

At the first cited pages of the trial transcript, Dr. Weber 

says that a reliably Democratic voting population of 60% is 

sufficient to create a safe Democratic seat. App. 91. Yet, 

he adds, the legislature created a more-than-60% reliable 

Democratic voting population in District 12. Hence (we 

read Dr. Weber to infer), the legislature likely was driven 

by race, not politics. Tr. 163; App. 314-315. 

The record indicates, however, that, although Dr. Weber 

is right that District 12 is more than 60% reliably Demo- 

cratic, it exceeds that figure by very little. Nor did Dr. 
Weber ask whether other districts, unchallenged by ap- 

pellees, were significantly less “safe” than was District 12. 

Id., at 148. In fact the figures the legislature used showed 

that District 12 would be 63% reliably Democratic. App. to 

Juris. Statement 80a (Democratic vote over three represen- 

tative elections averaged 63%). By the same measures, at 

least two Republican districts (Districts 6 and 10) are 61% 

reliably Republican. Ibid. And, as Dr. Weber conceded, 

incumbents might have urged legislators (trying to main- 

tain a six/six Democrat/Republican delegation split) to 

make their seats, not 60% safe, but as safe as possible. 

App. 149. In a field such as voting behavior, where figures 

are inherently uncertain, Dr. Weber's tiny calculated 

percentage differences are simply too small to carry sig- 

nificant evidentiary weight. 

2 

The District Court cited two parts of the transcript 

where Dr. Weber testified about a table he had prepared 

listing all precincts in the six counties, portions of which 

make up District 12. Tr. 204-205, 262. Dr. Weber said 

that District 12 contains between 39% and 56% of the 

precincts (depending on the county) that are more-than- 

40% reliably Democratic, but it contains almost every 

precinct with more-than-40% African-American voters.  



HUNT v. CROMARTIE 

Opinion of the Court 

Id., at 204-205. Why, he essentially asks, if the legisla- 

ture had had politics primarily in mind, would its effort to 

place reliably Democratic precincts within District 12 not 

have produced a greater racial mixture? 

Dr. Weber's own testimony provides an answer to this 

question. As Dr. Weber agreed, the precincts listed in the 
table were at least 40% reliably Democratic, but virtually 

all the African-American precincts included in District 12 

were more than 40% reliably Democratic. Moreover, none 

of the excluded white precincts were as reliably Democratic 

as the African-American precincts that were included in the 

district. App. 140. Yet the legislature sought precincts that 

were reliably Democratic, not precincts that were 40%- 

reliably Democratic, for obvious political reasons. 

Neither does the table specify whether the excluded 

white-reliably-Democratic precincts were located near 

enough to District 12’s boundaries or each other for the 

legislature as a practical matter to have drawn District 

12’s boundaries to have included them, without sacrificing 

other important political goals. The contrary is suggested 

by the fact that Dr. Weber's own proposed alternative 

plan, see i1d., at 106-107, would have pitted two incum- 

bents against each other (Sue Myrick, a Republican from 

former District 9 and Mel Watt, a Democrat from former 

District 12). Dr. Weber testified that such a result—*a 

very competitive race with one of them losing their seat’ — 

was desirable. Id., at 153. But the legislature, for politi- 

cal, not racial, reasons, believed the opposite. And it drew 

its plan to protect incumbents—a legitimate political goal 

recognized by the District Court. App. to Juris. Statement 

11a. 

For these reasons, Dr. Weber's table offers little insight 

into the legislature’s true motive. 

3 

The next part of the transcript the District Court cited  



    

@ 

  

Cite as: 532 U.S. (2001) 13 

Opinion of the Court 

contains Dr. Weber's testimony about a Mecklenburg 

County precinct (precinct 77) which the legislature split 

between Districts 9 and 12. Tr. 221. Dr. Weber appar- 

ently thought that the legislature did not have to split this 

precinct, placing the more heavily African-American seg- 

ment within District 12—unless, of course, its motive was 

racial rather than political. But Dr. Weber simultane- 

ously conceded that he had not considered whether Dis- 

trict 9s incumbent Republican would have wanted the 

whole of precinct 77 left in her own district where it would 

have burdened her with a significant additional number of 

reliably Democratic voters. App. 156-157. Nor had Dr. 
Weber “test[ed]” his conclusion that this split helped to 

show a racial (rather than political) motive, say, by ad- 

justing other boundary lines and determining the political, 

or other nonracial, consequences of such adjustments. Id., 

at 132. 
The maps in evidence indicate that to have placed all of 

precinct 77 within District 12 would have created a Dis- 

trict 12 peninsula that invaded District 9, neatly dividing 

that latter district in two, see id., at 496—a conclusive 

nonracial reason for the legislature’s decision not to do so. 

4 

The District Court cited Dr. Weber's conclusion that 

“race is the predominant factor.” Tr. 251. But this state- 

ment of the conclusion is no stronger than the evidence 

that underlies it. 

5 

The District Court's final citation is to Dr. Weber's 

assertion that there are other ways in which the legisla- 

ture could have created a safely Democratic district with- 

out placing so many primarily African-American districts 

within District 12. Id., at 288. And we recognize that 
some such other ways may exist. But, unless the evidence 

 



  

14 HUNT v. CROMARTIE 

Opinion of the Court 

also shows that these hypothetical alternative districts 

would have better satisfied the legislature’s other nonra- 
cial political goals as well as traditional nonracial dis- 

tricting principles, this fact alone cannot show an im- 

proper legislative motive. After all, the Constitution does 

not place an affirmative obligation upon the legislature to 

avoid creating districts that turn out to be heavily, even 

majority, minority. It simply imposes an obligation not to 

create such districts for predominantly racial, as opposed 

to political or traditional, districting motivations. And Dr. 

Weber's testimony does not, at the pages cited, provide 

evidence of a politically practical alternative plan that 

the legislature failed to adopt predominantly for racial 

reasons. 

6 

In addition, we have read the whole of Dr. Weber's 
testimony, including portions not cited by the District 

Court. Some of those portions further undercut Dr. 
Weber's conclusions. Dr. Weber said, for example, that he 

had developed those conclusions while under the errone- 

ous impression that the legislature’s computer-based 

districting program provided information about racial, but 

not political, balance. App. 137-138; see also id., at 302 

(reflecting Dr. Weber's erroneous impression in the declara- 
tion he submitted to the District Court). He also said he 

was not aware of “anything about political dynamics going 

on in the [l]egislature involving” District 12, id., at 135, 

sometimes expressing disdain for a process that we have 

cautioned courts to respect, id., at 150-151; Miller, 515 

U. S., at 915-916. 
Other portions support Dr. Weber's conclusions. Dr. 

Weber testified, for example, about a different alternative 

plan that, in his view, would have provided both greater 

racial balance and political security, namely, a plan that 

the legislature did enact in 1998, and which has been in 

 



    

* 

  

Cite as: 532 U. S. (2001) 15 

Opinion of the Court 

effect during the time the courts have been reviewing the 

constitutionality of the 1997 plan. App. 156-157. The 

existence of this alternative plan, however, cannot help 

appellees significantly. Although it created a somewhat 

more compact district, it still divides many communities 

along racial lines, while providing fewer reliably Demo- 

cratic District 12 voters and transferring a group of highly 

Democratic precincts into two safely Republican districts, 

namely, the 5th and 6th Districts, which political result 

the 1997 plan sought to avoid. See Tr. 352, 355. Fur- 

thermore, the 1997 plan before this Court, unlike the 1998 

plan, joined three major cities in a manner legislators 

regarded as reflecting “a real commonality of urban inter- 

ests, with inner city schools, urban health care ... prob- 

lems, public housing problems.” App. 430 (statement of 

Sen. Winner); see also id., at 421 (statement of Sen. Mar- 

tin). Consequently, we cannot tell whether the existence 

of the 1998 plan shows that the 1997 plan was drawn with 

racial considerations predominant. And, in any event, the 

District Court did not rely upon the existence of the 1998 

plan to support its ultimate conclusion. See Kelley v. 

Everglades Drainage Dist, 319 U. S. 415, 420-422 (1943) 

(per curiam). 

We do not see how Dr. Weber's testimony, taken as a 

whole, could have provided more than minimal support for 

the District Court's conclusion that race predominantly 

underlay the legislature’s districting decision. 

C 

The District Court found that the testimony of the 

State’s primary expert, Dr. Peterson, was “ ‘unreliable’ and 

not relevant.” App. to Juris. Statement 27a (quoting Dr. 

Weber and citing Tr. 222-224, 232). Dr. Peterson’s testi- 

mony was designed to show that African-American Demo- 

cratic voters were more reliably Democratic and that 

District 12's boundaries were drawn to include reliable 

 



  

16 HUNT v. CROMARTIE 

Opinion of the Court 

Democrats. Specifically, Dr. Peterson compared precincts 

immediately within District 12 and those immediately 

without to determine whether the boundaries of the dis- 

trict corresponded better with race than with politics. The 

principle underlying Dr. Peterson’s analysis is that if the 

district were drawn with race predominantly in mind, one 

would expect the boundaries of the district to correlate 

with race more than with politics. 

The pages cited in support of the District Court's rejec- 

tion of Dr. Peterson’s conclusions contain testimony by Dr. 

Weber, who says that Dr. Peterson’s analysis is unreliable 

because (1) it “ignor[es] the core” of the district, id., at 223, 

and (2) it fails to take account of the fact that different 

precincts have different populations, id., at 223-224. The 
first matter—ignoring the “core”—apparently reflects Dr. 

Weber's view that in context the fact that District 12's 

heart or “core” is heavily African-American by itself shows 

that the legislature's motive was predominantly racial, not 

political. The District Court did not argue that the racial 
makeup of a district’s “core” is critical. Nor do we see why 

“core” makeup alone could help the court discern the 

relevant legislative motive. Nothing here suggests that 
only “core” makeup could answer the “political/racial” 

question that this Court previously found critical. Cro- 
martie, 526 U. S., at 551-552. 

The second matter—that Dr. Peterson’s boundary seg- 

ment analysis did not account for differences in population 

between precincts—relates to one aspect of Dr. Peterson’s 

testimony. Appellants presented Dr. Peterson’s testimony 

and data in support of four propositions: first, that regis- 

tration figures do not accurately reflect actual voting 

behavior, see App. to Juris. Statement 173a—174a; second, 

that African-Americans are more reliable Democrats than 

whites, see id., at 159a—160a; third, that political affilia- 

tion explains splitting cities and counties as well as does 

race, see id., at 189a, 191a-192a, 182a-185a; and fourth, 

 



      

@ 

Cite as: 532 U.S. (2001) 17 

Opinion of the Court 

that differences in the racial and political makeup of the 

precincts just inside and outside the boundaries of District 

12 show that politics is as good an explanation as is race 

for the district's boundaries, see id., at 161a—167a; 181la— 

182a. The District Court's criticism of Dr. Peterson’s testi- 

mony at most affects the reliability of the fourth element 

of Dr. Peterson’s testimony, his special boundary segment 

analysis. The District Court's criticism of Dr. Peterson’s 

boundary segment analysis does not undermine the data 

related to the split communities. The criticism does not 

undercut Dr. Peterson’s presentation of statistical evi- 

dence showing that registration was a poor indicator of 

party preference and that African-Americans are much 

more reliably Democratic voters, nor have we found in the 

record any significant evidence refuting that data. 
At the same time, appellees themselves have used the 

information available in the record to create maps com- 

paring the district’s boundaries with Democrat/Republican 

voting behavior. See Appendixes A, B, and C, infra. 

Because no one challenges the accuracy of these maps, we 

assume that they are reliable; and we can assume that Dr. 

Peterson’s testimony is reliable insofar as it confirms what 

the maps themselves contain and appellees themselves 

concede. Those maps, with certain exceptions discussed 

below, see infra, at 19-21, further indicate that the legis- 

lature drew boundaries that, in general, placed more- 

reliably Democratic voters inside the district, while plac- 

ing less-reliably Democratic voters outside the district. 

And that fact, in turn, supports the State’s answers to the 

questions we previously found critical. 

D 

The District Court also relied on two pieces of “direct” 

evidence of discriminatory intent. 

 



  

18 HUNT v. CROMARTIE 

Opinion of the Court 

1 

The court found that a legislative redistricting leader, 

Senator Roy Cooper, when testifying before a legislative 
committee in 1997, had said that the 1997 plan satisfies a 

“need for ‘racial and partisan’ balance.” App. to Juris. 

Statement 27a. The court concluded that the words “racial 

balance” referred to a 10-to-2 Caucasian/African-American 
balance in the State’s 12-member congressional delega- 

tion. Ibid. Hence, Senator Cooper had admitted that the 
legislature had drawn the plan with race in mind. 

Senator Cooper’s full statement reads as follows: 

“Those of you who dealt with Redistricting before re- 
alize that you cannot solve each problem that you en- 

counter and everyone can find a problem with this 

Plan. However, I think that overall it provides for a 

fair, geographic, racial and partisan balance through- 

out the State of North Carolina. I think in order to 

come to an agreement all sides had to give a little bit, 

but I think we've reached an agreement that we can 
live with.” App. 460. 

We agree that one can read the statement about “racial 

. .. balance” as the District Court read it—to refer to the 

current congressional delegation’s racial balance. But 
even as so read, the phrase shows that the legislature 
considered race, along with other partisan and geographic 

considerations; and as so read it says little or nothing 

about whether race played a predominant role compara- 

tively speaking. See Vera, 517 U. S., at 958 (O'CONNOR, dJ., 

principal opinion) (“Strict scrutiny does not apply merely 

because redistricting is performed with consciousness of 

race”); see also Miller, 515 U. S., at 916 (legislatures “will 

... almost always be aware of racial demographics”); Shaw 

I, 509 U. S., at 646 (same). 

 



    

Rl 

  

Cite as: 532 U.S. (2001) 19 

Opinion of the Court 

9 
ded 

The second piece of “direct” evidence relied upon by the 

District Court is a February 10, 1997, e-mail sent from 

Gerry Cohen, a legislative staff member responsible for 
drafting districting plans, to Senator Cooper and Senator 

Leslie Winner. Cohen wrote: “I have moved Greensboro 

Black community into the 12th, and now need to take 

[about] 60,000 out of the 12th. I await your direction on 

this.” App. 369. 

The reference to race—i.e., “Black community’—is obvi- 

ous. But the e-mail does not discuss the point of the refer- 

ence. It does not discuss why Greensboro’s African- 

American voters were placed in the 12th District; it does 

not discuss the political consequences of failing to do so; it 
is addressed only to two members of the legislature; and it 

suggests that the legislature paid less attention to race in 

respect to the 12th District than in respect to the 1st 

District, where the e-mail provides a far more extensive, 

detailed discussion of racial percentages. It is less persua- 

sive than the kinds of direct evidence we have found signifi- 

cant in other redistricting cases. See Vera, supra, at 959 

(O'CONNOR, J., principal opinion) (State conceded that one 

of its goals was to create a majority-minority district); 

Miller, supra, at 907 (State set out to create majority- 

minority district); Shaw II, 517 U. S., at 906 (recounting 

testimony by Cohen that creating a majority-minority dis- 

trict was the “principal reason” for the 1992 version of Dis- 
trict 12). Nonetheless, the e-mail offers some support for 
the District Court’s conclusion. 

E 

As we have said, we assume that the maps appended to 

appellees’ brief reflect the record insofar as that record 

describes the relation between District 12's boundaries 

and reliably Democratic voting behavior. Consequently 

we shall consider appellees’ related claims, made on ap- 

 



  

20 HUNT v. CROMARTIE 

Opinion of the Court 

peal, that the maps provide significant support for the 
District Court, in that they show how the legislature 

might have “swapped” several more heavily African- 

American District 12 precincts for other less heavily 

African-American adjacent precincts—without harming its 

basic “safely Democratic” political objective. Cf. supra, at 

10-11. 

First, appellees suggest, without identifying any specific 

swap, that the legislature could have brought within 

District 12 several reliably Democratic, primarily white, 

precincts in Forsyth County. See Brief for Appellees 30. 

None of these precincts, however, is more reliably Demo- 

cratic than the precincts immediately adjacent and within 

District 12. See Appendix A, infra (showing Demo- 
cratic strength reflected by Republican victories in each 
precinct); App. 484 (showing Democratic strength re- 

flected by Democratic registration). One of them, the 

Brown/Douglas Recreation Precinct, is heavily African- 

American. See ibid. And the remainder form a buffer 
between the home precinct of Fifth District Representative 

Richard Burr and the District 12 border, such that their 

removal from District 5 would deprive Representative 
Burr of a large portion of his own hometown, making him 
more vulnerable to a challenge from elsewhere within his 

district. App. to Juris. Statement 209a; App. 623. Conse- 

quently the Forsyth County precincts do not significantly 

help appellees’ “race not politics” thesis. 

Second, appellees say that the legislature might have 

swapped two District 12 Davidson County precincts 

(Thomasville 1 and Lexington 3) for a District 6 Guilford 

County precinct (Greensboro 17). See Brief for Appellees 

30, n. 25. Whatever the virtues of such a swap, however, 

it would have diminished the size of District 12, geo- 

graphically producing an unusually narrow isthmus link- 

ing District 12’s north with its south and demographically 

producing the State’s smallest district, deviating by about 

 



  

# * 

Cite as: 5321.8. (2001) 21 

Opinion of the Court 

1,300 below the legislatively endorsed ideal mean of 

552,386 population. Traditional districting considerations 

consequently militated against any such swap. See Rec- 

ord, Deposition of Linwood Lee Jones 122 (stating that 

legislature’s goal was to keep deviations from ideal popu- 

lation to less than 1,000); App. 199 (testimony of Sen. 

Cooper to same effect). 

Third, appellees suggest that, in Mecklenburg County, 

two District 12 precincts (Charlotte 81 and LCI-South) be 
swapped with two District 9 precincts (Charlotte 10 and 

21). See Brief for Appellees 30, n. 25. This suggestion is 

difficult to evaluate, as the parties provide no map that 

specifically identifies each precinct in Mecklenburg 

County by name. Nonetheless, from what we can tell, 

such a swap would make the district marginally more 
white (decreasing the African-American population by 

about 300 persons) while making the shape more ques- 

tionable, leaving the precinct immediately to the south of 

Charlotte 81 jutting out into District 9. We are not con- 

vinced that this proposal materially advances appellees’ 

claim. 

Fourth, appellees argue that the legislature could have 

swapped two reliably Democratic Greensboro precincts 

outside District 12 (11 and 14) for four reliably Republican 

High Point precincts (1, 13, 15, and 19) placed within 

District 12. See ibid. The swap would not have improved 

racial balance significantly, however, for each of the six 

precincts have an African-American population of less 

than 35%. Additionally, it too would have altered the 

shape of District 12 for the worse. See Appendix D, infra; 
see also App. 622 (testimony of Gerry Cohen). And, in any 

event, the decision to exclude the two Greensboro pre- 

cincts seems to reflect the legislature’s decision to draw 

boundaries that follow main thoroughfares in Guilford 

County. App. to Juris. Statement 205a; App. 575. 

Even if our judgments in respect to a few of these pre- 

 



  

22 HUNT v. CROMARTIE 

Opinion of the Court 

cincts are wrong, a showing that the legislature might 

have “swapped” a handful of precincts out of a total of 154 

precincts, involving a population of a few hundred out of a 

total population of about half a million, cannot signifi- 

cantly strengthen appellees’ case. 

IV 

We concede the record contains a modicum of evidence 

offering support for the District Court’s conclusion. That 

evidence includes the Cohen e-mail, Senator Cooper's 

reference to “racial balance,” and to a minor degree, some 

aspects of Dr. Weber's testimony. The evidence taken 

together, however, does not show that racial considera- 

tions predominated in the drawing of District 12’s bounda- 

ries. That is because race in this case correlates closely 

with political behavior. The basic question is whether the 

legislature drew District 12's boundaries because of race 

rather than because of political behavior (coupled with 

traditional, nonracial districting considerations). It is not, 

as the dissent contends, see post, at 9, whether a legisla- 

ture may defend its districting decisions based on a 

“stereotype” about African-American voting behavior. And 

given the fact that the party attacking the legislature’s 
decision bears the burden of proving that racial considera- 

tions are “dominant and controlling,” Miller, 515 U. S., at 

913, given the “demanding” nature of that burden of proof, 

id., at 929 (O'CONNOR, J., concurring), and given the 

sensitivity, the “extraordinary caution,” that district 

courts must show to avoid treading upon legislative pre- 

rogatives, id., at 916 (majority opinion), the attacking 

party has not successfully shown that race, rather than 

politics, predominantly accounts for the result. The record 

leaves us with the “definite and firm conviction,” United 

States Gypsum Co., 333 U. S., at 395, that the District 

Court erred in finding to the contrary. And we do not 

believe that providing appellees a further opportunity to 

 



  

& * 

Cite as: 532 U. S. (2001) 23 

Opinion of the Court 

make their “precinct swapping” arguments in the District 

Court could change this result. 

We can put the matter more generally as follows: In a 

case such as this one where majority-minority districts (or 

the approximate equivalent) are at issue and where racial 

identification correlates highly with political affiliation, 

the party attacking the legislatively drawn boundaries 

must show at the least that the legislature could have 

achieved its legitimate political objectives in alternative 
ways that are comparably consistent with traditional 
districting principles. That party must also show that 

those districting alternatives would have brought about 

significantly greater racial balance. Appellees failed to 

make any such showing here. We conclude that the Dis- 

trict Court's contrary findings are clearly erroneous. 

Because of this disposition, we need not address appel- 

lants’ alternative grounds for reversal. 

The judgment of the District Court is 

Reversed. 

[Appendixes containing maps from appellees’ and appel- 

lants’ briefs follow this page.] 

 



   

  

4 APPENDIX A ® ® 
  

Republican Victories in Forsyth County for All Precincts 

  
  

  
  

    

Legend 

  
STTT—— Counties 

Precincts 
  

  

    

  
  

97 Congressional District 12 
  

3 Republican Victories 
kes 

I) Republican Victories 

1 Republican Victory 

  0 Republican Victories 

  

      

  

N.C. General Assembly, 

| Information Systems Division       
  

Source: App. to Brief for Appellees 2a. 

 



  

® APPENDIX B 
  

  

Republican Victories in Guilford County for All Precincts 
  

  

  

Legend 

    
Counties   Precincts 

97 Congressional District 12 

Ly 3 Republican Victories 

2 Republican Victories 

pi 1 Republican Victory 

Ue 0 Republican Victories 

      
      

  

    
    

  
  

  
        

  

  

N.C. General Assembly, 

Information Systems Division 

                    
  

Source: App. to Brief for Appellees 3a. 

 



4 APPENDIX C " 
Republican Victories in Mecklenburg County for All Precincts 
  

  

    

Legend 

Counties 

Precincts 
  

97 Congressional District 12 

3 Republican Victories 

2 Republican Victories 

1 Republican Victory 

0 Republican Victories 1
°
)
 

| 
Aa

n 

  
  

  

N.C. General Assembly, 

Information Systems Division         
  

Source: App. to Brief for Appellees 4a. 

 



    

  

APPENDIX D _ % : 

  

  

    

  

  
    

        

     

    

  

    
          

J North Center Grove North Monroe 

Rig a ay EFFECT OF APPELLEES’ ——— ne Bilas We alo i Rt 

Da en SWaps fi os t South Center od 

BETWEEN HIGH POINT ounty a 

AND GREENSBORO | He ale oy iy 
PRECINCTS re fee 

3 
LEGEND a Friendship-1 i 

—— County Lines "adil i | 

——— Precinct Lines \ aS ees 

BEER District Line nt ; 

WE Precincts moved aE) ] ; 

into District 12 at 2 gears r SU 

Ee 7 Precinct d : = me 

out of District 12 : a 

Pg <\ 

| pT 
South Jefferson | 

HP-24 VE 

ft 
| | 

al 
Lomi Sumner 

| 

al   
South Sumner Fentress-1 

                
      

    i 

g bo
 N
a
 pS
 

i
]
 

I 

J 
LA
 

| 1 | Fe
 i bn
,         
  

Source: App. to Reply Brief for State Appellants 1a. 

 



    

Cite as: 532 U. S. (2001) 1 

THOMAS, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

Nos. 99-1864 and 99-1865 

JAMES B. HUNT, Jr., GOVERNOR OF NORTH 
CAROLINA, ET AL., APPELLANTS 

99-1864 v. 
MARTIN CROMARTIE ET AL. 

ALFRED SMALLWOOD, ET AL., APPELLANTS 
99-1865 . 

MARTIN CROMARTIE ET AL. 

ON APPEALS FROM THE UNITED STATES DISTRICT COURT FOR 
THE EASTERN DISTRICT OF NORTH CAROLINA 

[April 18, 2001] 

JUSTICE THOMAS, with whom THE CHIEF JUSTICE, 

JUSTICE SCALIA, and JUSTICE KENNEDY join, dissenting. 

The issue for the District Court was whether racial 

considerations were predominant in the design of North 

Carolina’s Congressional District 12. The issue for this 

Court is simply whether the District Court's factual find- 

ing—that racial considerations did predominate—was 

clearly erroneous. Because I do not believe the court 

below committed clear error, I respectfully dissent. 

I 

The District Court's conclusion that race was the pre- 

dominant factor motivating the North Carolina Legisla- 

ture is a factual finding. See Hunt v. Cromartie, 526 U. S. 

541, 549 (1999); Lawyer v. Department of Justice, 521 

U. S. 567, 580 (1997); Shaw v. Hunt, 517 U.S. 899, 905 

(1996); Miller v. Johnson, 515 U. S. 900, 910 (1995). See 

also Anderson v. Bessemer City, 470 U. S. 564, 573 (1985) 

(“[Intentional discrimination is a finding of fact ...”). 

 



HUNT v. CROMARTIE 

THOMAS, J., dissenting 

Accordingly, we should not overturn the District Court’s 

determination unless it is clearly erroneous. See Lawyer, 

supra, at 580; Shaw, supra, at 910; Miller, supra, at 917. 

We are not permitted to reverse the court’s finding “simply 

because [we are] convinced that [we] would have decided 

the case differently.” Anderson, supra, at 573. “Where 
there are two permissible views of the evidence, the fact- 

finder’s choice between them cannot be clearly erroneous.” 

470 U.S., at 574. We should upset the District Court's 
finding only if we are “‘left with the definite and firm 

conviction that a mistake has been committed.”” Id., at 

573 (quoting United States v. United States Gypsum Co., 

333 U. S. 364, 395 (1948)). 
The Court does cite cases that address the correct stan- 

dard of review, see ante, at 7, and does couch its conclu- 

sion in “clearly erroneous” terms, see ante, at 22-23. But 

these incantations of the correct standard are empty ges- 

tures, contradicted by the Court’s conclusion that it must 

engage in “extensive review.” See ante, at 7. In several 

ways, the Court ignores its role as a reviewing court and 

engages in its own factfinding enterprise.! First, the 

Court suggests that there is some significance to the ab- 
sence of an intermediate court in this action. See ibid. 
This cannot be a legitimate consideration. If it were le- 

gitimate, we would have mentioned it in prior redistricting 

cases. After all, in Miller and Shaw, we also did not have 

the benefit of intermediate appellate review. See also 

  

1Despite its citation of Bose Corp. v. Consumers Union of United 
States, Inc., 466 U. S. 485 (1984), ante, at 7, I do not read the Court's 

opinion to suggest that the predominant factor inquiry, like the actual 

malice inquiry in Bose, should be reviewed de novo because it is a 

“constitutional fac[t].” 466 U.S., at 515 (REHNQUIST, J., dissenting). 

Nor could it, given our holdings in Lawyer v. Department of Justice, 521 
U. S. 567 (1997), Miller v. Johnson, 515 U. S. 900 (1995), and Shaw v. 

Hunt, 517 U. S. 899 (1996).  



    

Cite as: 532 U.S. (2001) 3 

THOMAS, J., dissenting 

United States v. Oregon State Medical Soc., 343 U. S. 326, 

330, 332 (1952) (engaging in clear error review of factual 

findings in a Sherman Act case where there was no inter- 

mediate appellate review). In these cases, we stated that 

the standard was simply “clearly erroneous.” Moreover, 

the implication of the Court's argument is that intermedi- 
ate courts, because they are the first reviewers of the 

factfinder’s conclusions, should engage in a level of review 
more rigorous than clear error review. This suggestion is 

not supported by law. See Fed. Rule Civ. Proc. 52(a) 

(“Findings of fact, whether based on oral or documentary 

evidence, shall not be set aside unless clearly erroneous 

7). In fact, the very case the Court cited to articulate 

clear error review discussed the standard as it applied to 

an intermediate appellate court, which obviously did not 

have the benefit of another layer of review. See ante, at 7 

(citing Anderson, supra, at 573). 

Second, the Court appears to discount clear error review 

here because the trial was “not lengthy.” Ante, at 7. Even 

if considerations such as the length of the trial were rele- 

vant in deciding how to review factual findings, an as- 
sumption about which I have my doubts,? these considera- 

tions would not counsel against deference in this action. 

The trial was not “just a few hours” long, Bose Corp. v. 

Consumers Union of United States, Inc., 466 U. S. 485, 500 

2 Bose, which the Court cites to support its discounting of clear error 

review, ante, at 7, does state that “the likelihood that the appellate 
court will rely on the presumption [of correctness of factual findings] 

tends to increase when trial judges have lived with the controversy for 
weeks or months instead of just a few hours.” 466 U. S., at 500. It is 
unclear, however, what bearing this statement of fact—that appellate 

courts will defer to factual findings more often when the trial was 
long—had on our understanding of the scope of clear error review. In 
Bose, we held that a lower court’s “actual malice” finding must be 

reviewed de novo, see id., at 514, not that clear error review must be 

calibrated to the length of trial. 

 



  

4 HUNT uv. CROMARTIE 

THOMAS, J., dissenting 

(1984); it lasted for three days in which the court heard 

the testimony of 12 witnesses. And quite apart from the 

total trial time, the District Court sifted through hundreds 
of pages of deposition testimony and expert analysis, 

including statistical analysis. It also should not be forgot- 

ten that one member of the panel has reviewed the itera- 

tions of District 12 since 1992. If one were to calibrate 

clear error review according to the trier of fact’s familiar- 

ity with the case, there is simply no question that the 

court here gained a working knowledge of the facts of this 

litigation in myriad ways over a period far longer than 

three days. 

Third, the Court downplays deference to the District 

Court’s finding by highlighting that the key evidence was 
expert testimony requiring no traditional credibility de- 

terminations. See ante, at 7. As a factual matter, the 

Court overlooks the District Court’s express assessment of 

the legislative redistricting leader’s credibility. See App. 

to Juris. Statement in No. 99-1864, pp. 27a, 28a, n. 8. It 

is also likely that the court’s interpretation of the e-mail 

written by Gerry Cohen, the primary drafter of District 12, 

was influenced by its evaluation of Cohen as a witness. 

See id., at 28a, n. 8. See also App. 261-268. And, as a 

legal matter, the Court's emphasis on the technical nature 

of the evidence misses the mark. Although we have rec- 

ognized that particular weight should be given to a trial 

court’s credibility determinations, we have never held that 

factual findings based on documentary evidence and ex- 
pert testimony justify “extensive review,” ante, at 7. On 

the contrary, we explained in Anderson that “[t]he ration- 

ale for deference . . . is not limited to the superiority of the 

trial judge’s position to make determinations of credibil- 

ity.” 470 U. S., at 574. See also Fed. Rule Civ. Proc. 52(a) 

(specifically referring to oral and documentary evidence). 

Instead, the rationale for deference extends to all deter- 

minations of fact because of the trial judge's “expertise” in 

 



    

4 

  

Cite as: 532 U.S. (2001) 5 

THOMAS, J., dissenting 

making such determinations. 470 U. S., at 574. Accord- 

ingly, deference to the factfinder “is the rule, not the ex- 

ception,” id., at 575, and I see no reason to depart from 

this rule in the case before us now. 

Finally, perhaps the best evidence that the Court has 

emptied clear error review of meaningful content in the 

redistricting context (and the strongest testament to the 

fact that the District Court was dealing with a complex 

fact pattern) is the Court’s foray into the minutiae of the 

record. I do not doubt this Court’s ability to sift through 

volumes of facts or to argue its interpretation of those 
facts persuasively. But I do doubt the wisdom, efficiency, 

increased accuracy, and legitimacy of an extensive review 

that is any more searching than clear error review. See 

id., 574-575 (“Duplication of the trial judge's efforts . . . 

would very likely contribute only negligibly to the accu- 

racy of fact determination at a huge cost in diversion of 

judicial resources”). Thus, I would follow our precedents 

and simply review the District Court's finding for clear 

error. 

II 

Reviewing for clear error, I cannot say that the District 

Court's view of the evidence was impermissible.? First, 

the court relied on objective measures of compactness, 

which show that District 12 is the most geographically 

scattered district in North Carolina, to support its conclu- 

sion that the district’s design was not dictated by tradi- 

tional districting concerns. App. to Juris. Statement in 

3] assume, because the District Court did, that the goal of protecting 
incumbents is legitimate, even where, as here, individuals are incum- 

bents by virtue of their election in an unconstitutional racially gerry- 

mandered district. No doubt this assumption is a questionable proposi- 

tion. Because the issue was not presented in this action, however, I do 

not read the Court’s opinion as addressing it. 

 



  

6 HUNT v. CROMARTIE 

THOMAS, J., dissenting 

No. 99-1864, p. 26a. Although this evidence was available 

when we held that summary judgment was inappropriate, 

we certainly did not hold that it was irrelevant in deter- 

mining whether racial gerrymandering occurred. On the 

contrary, we determined that there was a triable issue of 

fact. Moreover, although we acknowledged “that a dis- 
trict’s unusual shape can give rise to an inference of politi- 

cal motivation,” we “doubt[ed] that a bizarre shape equally 

supports a political inference and a racial one.” Hunt, 526 

U. S., at 547, n. 3. As we explained, “[s]Jome districts . . . 

are ‘so highly irregular that [they] rationally cannot be 

understood as anything other than an effort to segregat[e] 

... voters’ on the basis of race.” Ibid. (internal quotation 
marks omitted). 

Second, the court relied on the expert opinion of Dr. 
Weber, who interpreted statistical data to conclude that 

there were Democratic precincts with low black popula- 

tions excluded from District 12, which would have created 

a more compact district had they been included.# App. to 

Juris. Statement in No. 99-1864, p. 25a. And contrary to 

the Court’s assertion, Dr. Weber did not merely examine 

the registration data in reaching his conclusions. Dr. 

Weber explained that he refocused his analysis on per- 

formance. He did so in response to our concerns, when we 

reversed the District Court’s summary judgment finding, 
that voter registration might not be the best measure of 
the Democratic nature of a precinct. See id., at 26a (citing 

  

4] do not think it necessary to impose a new burden on appellees to 
show that districting alternatives would have brought about “signifi- 
cantly greater racial balance.” Ante, at 22. I cannot say that it was 
impermissible for the court to conclude that race predominated in this 

action even if only a slightly better district could be drawn absent racial 

considerations. The District Court may reasonably have found that 

racial motivations predominated in selecting one alternative over 

another even if the net effect on racial balance was not “significant.” 

 



    

Cite as: 532 U.S. (2001) 7 

THOMAS, J., dissenting 

Trial Tr., which appears at App. 90-92, 105-107, 156— 
157). This fact was not lost on the District Court, which 

specifically referred to those pages of the record covering 
Dr. Weber's analysis of performance. 

Third, the court credited Dr. Weber's testimony that the 

districting decisions could not be explained by political 

motives. App. to Juris. Statement in No. 99-1864, p. 26a. 

In the first instance, I, like the Court, ante, at 11, might 

well have concluded that District 12 was not significantly 

“safer” than several other districts in North Carolina 
merely because its Democratic reliability exceeded the 

optimum by only 3 percent. And I might have concluded 

that it would make political sense for incumbents to adopt 

a “the more reliable the better” policy in districting. How- 

ever, I certainly cannot say that the court’s inference from 

the facts was impermissible.® 

  

5Dr. Weber admitted that, when he first concluded that race was the 

motivating factor, he was under the mistaken impression that the 

legislature’s computer program provided only racial, not political, data. 
The Court finds that this admission undercut the validity of Dr. 

Weber's conclusions. See ibid. Although the District Court could have 

found that this impression was a sufficiently significant assumption in 

Dr. Weber's analysis that the conclusions drawn from the analysis were 

suspect, it was not required to do so as a matter of logic. The court 

reasonably could have believed that the false impression had very little 

to do with the statistical analysis that was largely responsible for Dr. 
Weber's conclusions. 

In addition, the Court discounts Dr. Weber's testimony because he 

“express[ed] disdain for a process that we have cautioned courts to 

respect,” ibid. Dr. Weber did openly state that he believes that the best 

districts he had seen in the 1990's were those drawn by judges, not by 

legislatures. App. 150-151. However, whether Dr. Weber was simply 

stating the conclusions he has reached through his experience or was 

expressing a feeling of contempt toward the legislature is precisely the 
kind of tone, demeanor, and bias determination that even the Court 

acknowledges should be left to the factfinder, cf. ante, at 7. 

6The Court also criticizes Dr. Weber's testimony that Precinct 77's 

split was racially motivated and his proposed alternative that all of 

 



HUNT v. CROMARTIE 

THOMAS, J., dissenting 

Fourth, the court discredited the testimony of the 

State’s witness, Dr. Peterson. App. to Juris. Statement in 
No. 99-1864, p. 27a (explaining that Dr. Weber testified 
that Dr. Peterson’s analysis “ignor[ed] the core,” “ha[d] not 

been appropriately done,” and was “unreliable”). Again, 

like the Court, if I were a district court judge, I might have 

found that Dr. Weber's insistence that one could not ig- 

nore the core was unpersuasive.” However, even if the 

core could be ignored, it seems to me that Dr. Weber's 

testimony—that Dr. Peterson had failed to analyze all of 

the segments and thus that his analysis was incomplete, 

App. 119-120—reasonably could have supported the 

court’s conclusion. 

Finally, the court found that other evidence demon- 

strated that race was foremost on the legislative agenda: 

an e-mail from the drafter of the 1992 and 1997 plans to 

senators in charge of legislative redistricting, the com- 
puter capability to draw the district by race, and state- 

  

Precinct 77 could have been moved into District 9. Apparently the 

Court believes that it is obvious that the Republican incumbent in 
District 9 would not have wanted the whole of Precinct 77 in her 
district. See ante, at 12-13. But the Court addresses only part of Dr. 

Weber's alternative of how the districts could have been drawn in a 
race-neutral fashion. Dr. Weber explained that the alternative was not 
simply to move Precinct 77 into District 9. The alternative would also 

include moving other reliably Democratic precincts out of District 9 and 

into District 12, which presumably would have satisfied the incumbent. 
App. 157. This move would have had the result, not only of keeping 
Precinct 77 intact, but also of widening the corridor between the east- 
ern and western portions of District 9 and thereby increasing the 

functional contiguity. The Court’s other criticism, that moving all of 

Precinct 77 into District 12 would not work, is simply a red herring. 
Dr. Weber talked only of moving all of Precinct 77 into District 9, not of 
moving all of Precinct 77 into District 12. 

70Of course, considering that District 12 has never been constitution- 

ally drawn, Dr. Weber's criticism—that the problem with the district 

lies not just at its edges, but at its core—is not without force.  



Cite as: 532 U.S. (2001) 

THOMAS, J., dissenting 

ments made by Senator Cooper that the legislature was 
going to be able to avoid Shaw’s majority-minority trigger 

by ending just short of the majority.® App. to Juris. 

Statement in No. 99-1864, p. 28a. The e-mail, in combi- 

nation with the indirect evidence, is evidence ample 

enough to support the District Court’s finding for purposes 

of clear error review. The drafter of the redistricting plans 

reported in the bluntest of terms: “I have moved Greens- 

boro Black community into the 12th [District], and now 

need to take ... 60,000 out of the 12th [District].” App. 

369. Certainly the District Court was entitled to believe 

that the drafter was targeting voters and shifting district 

boundaries purely on the basis of race. The Court tries to 

belittle the import of this evidence by noting that the e- 
mail does not discuss why blacks were being targeted. See 

ante, at 18-19. However, the District Court was assigned 

the task of determining whether, not why, race predomi- 

nated. As I see it, this inquiry is sufficient to answer the 

constitutional question because racial gerrymandering 

offends the Constitution whether the motivation is mali- 

cious or benign. It is not a defense that the legislature 

merely may have drawn the district based on the stereo- 

8The court also relied on the statement of legislative redistricting 
leader Senator Cooper to the North Carolina Legislature, see App. to 

Juris. Statement in No. 99-1864, p. 27a, in which the senator men- 

tioned the goals of geographical, political, and racial balance, App. 460. 

In isolation, this statement does appear to support only the finding that 

race was a motive. Unlike this Court, however, the District Court had 

the advantage of listening to and watching Senator Cooper testify. I 
therefore am in no position to question the court’s likely analysis that, 

although Senator Cooper mentioned all three motives, the predomi- 

nance of race was apparent. This determination was made all the more 

reasonable by the fact that the District Court found the senator’s claim 

regarding the “happenstance” final composition of the district to lack 
credibility in light of the e-mail. App. to Juris. Statement in No. 99- 
1864, p. 28a, n. 8.  



HUNT uv. CROMARTIE 

THOMAS, J., dissenting 

type that blacks are reliable Democratic voters. And 

regardless of whether the e-mail tended to show that the 

legislature was operating under an even stronger racial 

motivation when it was drawing District 1 than when it 

was drawing District 12, cf. ante, at 19, I am convinced 

that the District Court permissibly could have accorded 
great weight to this e-mail as direct evidence of a racial 

motive. Surely, a decision can be racially motivated even 

if another decision was also racially motivated. 

If I were the District Court, I might have reached the 

same conclusion that the Court does, that “[t]he evidence 
taken together . . . does not show that racial considera- 

tions predominated in the drawing of District 12’s bounda- 
ries,” ante, at 22. But I am not the trier of fact, and it is 

not my role to weigh evidence in the first instance. The 

only question that this Court should decide is whether the 

District Court’s finding of racial predominance was clearly 
erroneous. In light of the direct evidence of racial motive 

and the inferences that may be drawn from the circum- 
stantial evidence, I am satisfied that the District Court's 

finding was permissible, even if not compelled by the 

record.