Zellner v. Lingo Brief for Appellants

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P. O. BOX 3245
(9r9) 373-0934
lgtg.\ 275-1341

EOBEET N. ETINTERTJE.
EOBEET SA.WYER IIODOMAN
BICEARD M. GBEENE
o-rnv n. oooDMAN

I.INTEtrT, HoOor"r.IN, GREENE & GOooU.lN
ATTONNEYS AT LAIf

SUITE 4IO

GATE CITY SA\.INGS & LOAN E|UILDINO
2OI W'EST MABtrET STREET

GEEENSBOEO, NOBTIT CAEOLINA 27402

JuIy 2L, 1983

The Honorable J. Rich Leonard
Clerk, United. States District Court
Eastern District of North Carolina
P. O. Box 25670
Raleigh, N. C.276lI

Re: Ralph Gingtes, €t al vs. Rufus Edmisten,
Etc., et aI No. 81-803-CIV-5
Alan V. Pugh, €t aI vs. James B. Hunt, Jr.1
Etc., et al No. 81-1056-CIV-5
John J. Cavanagh, et aI vs. AIex K. Brock,
Etc., No. 82-545-CIV-5

Dear Sir:

Enclosed is our Trial Brief in connection with the above-
captioned, in four (4) copies.

RNHJr : mbp
Enclosure



oo*'il,1'E^Hillli'"?3+II3,"5F',fiAifl,'3xfi3" n
RALEIGH DIVISIOIi

RALPT GINGLES r €t dl,

Plaintiffs.

vs.

Civil lro. 81-803-CIV-5

RUFUS L. EDMISTENT €t aI,

Defendants.

vs.

ALAN V. PUGH, €t af,
I ntervenors .

TRIAL B,RIEI'

NATURE OF CASE

North Carol ina General Statutes 120-)- and L20-2 provide for
the oivision of the State into geographic districts of multi-member

and single member Senate and House districts. This use of such

districts necessarily awaros some voters, more votes and legislators
than others. The effects that multi-menrber districts have on

political ano racial minorities have been noted by the courts, and

those which are present in this case are: submergence of minorities
within a district; unegual weight of votes cast, higher cost of
camPaigns tor candioates in multi-member districts; inability of
single member voters to weight their vote, longer ba11ots, ois-
proPortionate influence of legislators from multi-member districts,
and unresponsiveness to minority voters needs. I'he Pugh Intervenors

coritend that these inegual ities combine to cieny equal protection of
the law in voting to candidates ano constituents of single and

multi-member districts and therefore reguire the state to justify

this plan by showing a compelling state interest. Along with the

Gingles plaintiffs the Pugh Intervenors conteno that the use ot



multinrember Oaricts have the effect of diluting ruQ minorities
votes in six counties (Mecklenburg, Wake, Forsyth, Durham and

Edgecombe, Nash). In addition, the Pugh plaintiffs contend that
present apportionment mix of multi-member ano single member dis-
tricts is invidous either because it is arbitrary and capricious,

lacking any relationship to a valid state policyr oE was intention-

a1ly formulateo with the intent to gerrymander both racial and

political minorities. The multi-member system results in a vio-
Iation of Section 2 of The Voting Right Acts of 1965r ds amended.

FACTS

The North Carolina General Assembly first began its redistrict-
ing efforts in January 198I and concluded the effort in June of that
year by passing reapportionment plans which differed 1itt1e if any

from the previous plans. Subsequently, the Gingles plaintiffs filed
their action, and the Legislature reconvened for the purpose of

redistricting in the special sessions of October 1981. This special

session resulte<i in a house plan which revised the June reapportion-

ment plarr. The Senate chose not to reapportion its members at that
t ime.

Subsequent to the October session, the United States Attorney

General in his offical capacity objected to the North Carolina

Constitutional Amendment which prohibited the division or sub-

division of whole counties, and the Senate and House redistricting
plans on the grounds that multi-member oistricts, in areas where

there are cognizable concentrations of minority voters, dilute the

votes of minoiities.
The Legislaturers t'ebruary Session is most significant because

it is at these meetings that the committee and the staff discusseo

the state policies benind the redistricting plan subsequently

enacteo.

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Attach

House and Senate

page references.

Ivlultimember districts in North Carolina as contained in N.C.

G.s. 120-1 and 120-2 follow a stark pattern. The largest murti-
member districts in the state are in those areas where the
concentrations of minority voters are heaviest. The multimember

districts have no geographical subdistricts and are subJect to a

majority vote run-off requirement. Brock citizens of North
Carolina continue to bear the effects of historical patterns of
discrimination.

o
ed he

a
reafter is a Summary of the Transcripts of the

Redistricting Committees with dates, tape, and



PUGH INTERVENORS SUMI,IARY OF THE TRANSCRIPTS

The following is a summary of material the
Pugh Intervenors show to the Court as bearing
on the tenuous state poli-cy for treatment of
cognizable minorites within the noncovered
counties

HOUSE LEGISLATIVE REDISTRICTING COMMITTEE,
January 28, 1982

1. Beginning on tape 2, page 2, and continuing until tape 2,
page 7, I"1r. Jerris Leonard begins discussing the Voting Rights Act and
the demographic map whi-ch the staff of the Legislative Redistricting
Committee repaved, illustrating concentrations of minority votes.

2.
question:

On tape 2, page 3, Representative Brennan asks the following

"For those counties not covered by the Voting
Rights Act, which have in the past fj-ve years
elected black members from that county, what
would be your opinion from the Justice Depart-
ment about a decision the Justice Department
might make that if a county was not bothered
in any way, shaper or form by this act, and
were not under the Voting Rights Act?"

3. On tape 2, page 3, Jerris Leonard dj-scusses the implications
of the Voting Rights Act as covered by the entire state and then states
the options facing the legislature (tape 2, page 5) :

"If you want to be totally safe wherever you
find a concentration of black voters of black
population rather that was in excess of 25r000
in population, and would fit neatly in a dis-
trict of 49,015, you would creat it, whether
it is orange or black e.9., covered or non-
covered then you would have no problem. Pre-
sumably, that is one hray, that is one option,
you'have. The other option that you have, it
appears to me, is to sdlr 'We11, we have to
rely on the case 1aw.' ft is to say we have 60
counties covered by the act wherever there is
a concentration of black populations. We will
look carefully at that concentration and deter-
mine whether or not a district or districts can
be created that are 658 black. If we can't
create a 65t black population district, then we

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t{ill at l-east look at the concentrations to be
sure we have not diluted the black voting strength
in the numbers of districts that fall within the
perimeter of those rorange I e.g., noncovered,
townships.r That is the decision you have to
make. tt

4. Tape 2, page 8. !1r. Leonard begins his discussion of the
criteria. In discussing criteria #5, he states:

"ff you run helter-skelter through a state giving
no recognition at all to historical areas and com-
munities of interest, it can be a sign of unfair-
ness and attempt to gerrymander the districts.',

In discussing criteria *6 , he states:

"Number 6 is one which we think one of these days
the court is going to say something about. Over-
all, of course, a legislative body, when it adopts
a plan of reapportionment, it does so based on
what the court refers to as a rational state policy.
That simply means you treat the western part of the
state the same way you treat the eastern part of
the state. Yo don't adopt one standard there and
another standard someplace e1se. you donrt apply
the criteria equally in one part of the state and
disregard it in another. If you do that, I think
you would agree that the courts will find, and the
lawyers will find, that that would not be rational.
Incidentally, letrs not confuse that with the argu-
ment with the covered and nonccvered counties. I
think that it is a separate argument. Number six
simply says that current lines have some impact and
are a part of a rational state party so that you
stick to those again as an anti-gerrymander provi-
si.on so that is the criteria."

l'1r. Leonard continues to discuss in response to a question from
Senator Mi11s regarding multi-member districts in urban areas and
single member districts in the eastern part of North Carolina.

5. ![r. Leonard, dt tape 2, page 13, states:

"ff you want to be totally safe from both Section
5 Justice Department objection and your Fcurteenth,
Fifteenth Amendment lawsuit which is currentl_y pend-
irg, you would simply identify every concentration
of black minority populations in the state; and if
you could find your grouping where blacks would be
40, 45, 50t concentration and up to 90, that would
be a single member black district, be it House or
Senate. That would certainly safeguard you from
every kind of attack. Now the question that was
asked earlier by one of the House members, 'Isthat IegaIIy reguired?' My answer to that was, 'Wecan find no support in any of the decisj-ons of the

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of the Supreme Court, nor indeed any of the Circuitcourt of Appeals opinions.' r would doubt there wasany in any Federal District Court of Opinion thatsays the Justice Department has any jurisdiction
over the noncovered counties, provided that youdidnrt make any major changes in those count-ies,and then you wou1d have a di-fferent issue involved.P9t instance, Mecklenburg County, Ers I understandthe p1an, carries a proposal simply to pick up atownship on the border of Mecklenburg County of
some 29,000 people, added in and maintain r{ecklen-burg County as a multj--member, seven-member dis-trict. We can find no reason why you can't dothat. rt is certainly the histoiy of multi-memberdistricts if North carolina had no discriminatorypurpose. Multi-member districts have been usedhistorically in North caroli-na even before bl-ackshad significant voting influence in the state atall. "

6- on tape 2, page 16, Jerris Leonard, in response to a questionfrom Representative Dan B1ue, states that:
"The decision with respect to treatment of noncov-ered and covered counties depends on what the legis-lature wants to do in those two situations: ,Are yougoing to treat them all the same or are you going totreat covered counties one hray and the noncovered
counties another way?' The regislative criteriadoesn't bind us to do either."

7- on tape 4, page 16, Kenneth spaulding and Mr. Leonard begin alengthy discussion regarding the statL polic! of concentration of min-gfity populations and single member and multi-member districts. Thisdiscussion ends on tape 4-, page 20, and Mr. Leonard attempts to charac-terize what the Legislature ii to do in regard to committments to theone man, one vote, decision.

FEBRUARY 2 1982

1. Beginning on tape l, after a call to order, the LegislativeCommittee began discussing the criteria.
2. Kenneth spaulding begins (on page 2, tape r), of an amendmenthe_is proposing to the Legislitive nedisi.ri"iirrg-committee, which in-volves concentratj-ons of minority votes. This dj-scussion continuesuntil Page 10. At the end of Relresentative Spaulding's remarks, Mr.Jones discusses the purpose of the Legisrative criteria:

"Anyray, the primary purpose of preparing thecrj-teria was to prepare us to defend the lawsuit
when it comes. A1so, Justice said they wanted
to see what our criteria was, and as I statedin the past tvro plans that we drew up, we didnot have any criteria. "

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3. Tape 12, page 1. Representative Hege and Spaulding dis-
cussed the status of blacks in areas of the state where they would
not have a sizeable concentratj-on of minority votes. This discussion
continues on until page 15 of tape 1.

4. On page L7, tape 1, Representative Spaulding makes a motion that
concentrations of racial minority populations should not be diluted or
submerged by the use of multi-member districts as opposed to single-
member districts. The discussion on lr{r. Spaulding's amendment continues
on until tape 2, page 3, at which time Mr. Wallace begins discussing the
criteria and the importance of the criteria to the State of North
Carolina. 1,1r. Wallace states that on tape 2, page 6:

"This paper that we are discussing at this poirrt
is the first step in the redistricting now in
preparing for the lawsuj_t, and that is to estab-
lish criteria, and you need to be careful what
you put into that criteria, because it would do
no good to vote and adopt criteria and then dis-
regarC it in drawing maps Iater. So if you put
into that criteria strong words to the effect
that 'we are going to create single-member dis-
tricts outside of the covered counties," then we
have got to get drawing the maps on that by
counties not covered, and 60 of us are not, and
40 of us are, you need to know, rAre you going
to follow through on that criteria on L20 House
Seats in 100 counties, rather than just 40
counties?r I hope, and it is my gut feeling,
that they will not go into the uncovered
counties. "

5. On tape 2, page 14, February 2, in response to a guestion
from Representative Hege:

"Mr. Wallace, like to ask you a guestj-on. Do you
think that the creation of 120 single-member dis-
tricts with identifiable concentrations everyone
of those districts will enhance the state I s chance
of winning any court challenge?"

Mr. Wallace answers:

"WeI1, f don't. The reason frm having difficulty
answering, Iet me just get candid about it. When
you.say, twinniDg' , do you mean 'ro11ing over'?"

Mr. Hege answers:

"No, I saj-d 'winning' . "

Ivlr. Wallace answers:

"There are ways to win cases, sure, and that includes

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rolling cver. That's something the General
Assembly has to consider. Irm not saying you
would be rolling over. Itm not going to draw
your plans for you or give you emphatic anshrers
on how to reapportj_on; but when you sdy, ,Can I
enhance my chance of winning?', sure, anybody
can enhance their chances of winnirg, but do
they have what they want when they win? That's
the guestion. You haven't won at all. That is
the biggest victory in the world. If you have
a policy that invades against 120 districts so
you have a 1ot of things to consider. "

6. On tape 2, Page 24, February 2, L982, Representative Jones i-s
discussing with the members of the Legislature what their access to
the staff may be:

"He asked that individuaL members not bother the
staff, and I again ask that you not bother the
staff outside the meeting. "

7. On tape 4, page 1, the Legislative criteria are discussed
and Representative Jones adopts the criteria as amended by Representative
Spaulding. Representative Spaulding clarifies the amendment bV indica-
ting that a letter from Terry Ha1e, which is attached to the Committeereports, be consj-dered as supplemental memoranda for the committee togo along with.

8. On tape 4, page 20, Representatj-ve Jones discussed the relation-
ship between county lines and the Justice Department. At the end of
tape 4, page 20, he indicates:

"A1l of you have reasons why there is nobody ,',"-'r,here from a certain big county. And like life '' ^ ..',
is for the living, redistricting is for the
incumbents. " '\

FEBRUARY 3 1982

1. At tape 1, page 14, the House Legislative Redistricting
Commj-ttee begins to discuss Representative Brennan's motion to leave
Mecklenburg County intact, with eight members.

2. Representative Spaulding begins his comments regarding leaving
Mecklenburg County intact (tape 1, page L7l. Mr. Spaulding examines
Mr. HaIe on the fact that minorites have not been elected from l'Iecklen-
burg County in the past 10 years to the State House, and the fact that
at least two single-member districts could have been included in that
district. Representative Spaulding continues his arguments of single-
member districts for llecklenburg County. Representative Spaulding
began a discussion of the differences between minorites in Guiltoia
County and Mecklenburg County, beginning on tape 1, page 24.

3. The discussion regarding Mecklenburg continues (on tape 2,
page 1). Representatj-ve Brennan states that she would like to reply

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on beharf of the Meckrenburg county delegation, and comments:

"I will further tell you that in the past twenty-
three years, to my knowledge, and I am doing this
off the top of my head, there have only been three
black candidates for the N.c. House even recruited
by a black caucus or by the black community, and
we have an active one in Mecklenburg County, and
we almost elected one last time. We have a black
boy to run for the House this time, and I am con-
vinced he can get elected. "

The discussion on lvlecklenburg county concludes by tape 2, page 5.

4. Representative Spaulding, tape 2, page 23, begins commenting .)
uPon the lack of access to the committee for the possibility of drawlng./
uP single member districts across the state and that the committee
would not consider the criteria and following concentrations of minorityvoters outside the covered counties. Representative Jones discusses the\fact that the legislature did not have time to work on creation in 658 ,/minority districts in the entire state.

5. At tape 2, Page 26, Mr. Cohen, of the legislative staff, begins
discussing where he has computed where minority districts might be made
on February 3, L982, tape 5, and begins a discussion with Mr. Spaulding
in regard to llecklenburg County a possible district at tape 5, b"g" 2,
and contj.nues on until tape 5, page 5.

6. On tape 5, page 7, February 3,1982, Mr. Wallace and Mr.
Spaulding discuss inferred intent and direct intent in failing to
district Mecklenburg County into two minority districts.

7 . Louj-se Brennan on tape 5, page 8, begins her discussion that
minorities are not diluted in Mecklenburg County.

FEBRUARY 4 1982

1. On tape 1, Page 3, Representative Spaulding begins to discuss
major urban counties and local delegations and the presentation to come
of multi-member districtsa.

2. On tape 1, February
Spaulding and Representative
County and the fact that the
districts.

5, 1982, tape 1, page 6, Representative
Brennan again begin discussing Mecklenburg
City Council is elected by single member

3. Tape 1,
begins discussing
of local citizens
strength.

4. On tape
begins discussing

February 5, 1982r page L2, Representative Spaulding
maps for lvlecklenburg County and difficulty of a group
being able to recognize dilution of minority voting

l, page 13, February 5, L982, Representative Brennan
her record 1n support of blacks in lr{ecklenburg County.

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5. At February 5, tape 3, page r0, Representative spauldingintroduces a map for Meckrenburg county, which provides f6r twominority districts.

6. Tape 3, page 12, Louise Brennan speaks to a motion byRepresentative Spaulding that a multi-membered single-member districtbe made in Charlotte one, a predominantly black district, and two,a predominatly white dist.rict.
7. At tape 3, February 5, page 13, Representative Jones states

"this guestion will open the door wi.tfr having to do at1 this in the
uncovered areas where it could be done, and that would mean thatpeople who sued us would drop their lawsuit, because bre would havesurrendered. We would have given them exactly what they wanted intheir lawsuit. Representative Jones discusses the oppoitunities incharlotte to single shot to el-ect a representative.

8. Parks Helms begins on tape 3, page 15, indicating his represen-tation of the- Mecklenburg blacks. Representative Hege as[s why Mecklen-burg County should be treated differently because it is not unler theVotlng Rights Act.

9. Representative spaulding again points out on tape 3, page 2,the discrimj-nation involved in diluting the black vote in MecXlenburgCounty. Representative Spaulding's motion fails eight to twenty-two.Representative Spaulding at tape 4, page 3, introduces a map foi wakeCounty, which is subseqneutly voted down, and for Forsyth County, whichis subsequently voted down.

SENATE REDISTRTCTING coIvlI{ITTEE
TEBRUARY g, 1982

1- Tape 1, Page 1, Senator Frye's discussion with Senator Rouchon the public support of single-member districts across the State.
2. senator llilIs, February 9, 1982, tape 1, page 4, discussingthe advantage that multi-member district legislatois-have over single-

member legislators. The motion for single-member districts fai]s. Themotion to set up a three-member committ6e for single member fai1s.
3- At page 6, tape 1, February g, Senate Redistricting Committee,advice by Ms. Heenan to the Senate nedistricting Corunittee, F.ebruary9, 1982, tape 3, page 2, regarding the drafting of Senate districtswhich accomodate black or minority districts ana the adverse resultthat it may have in terms of gerrlrmander.

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ARGUMENT

THE RESIDENTS AND VOTERS OF SINGLE II,IEMBER AND MULTI-II,IEI.,IBER
DISTRICTS ARE A SALIE}iT CLASS OF VOTERS ENTTI,LED TO RAISE
EQUAL PROTECTION AND VOTE DILUTION CLAII,IS AS TO THE USE
OP A PARTICULAR PLAN OF SINGLE MEIVIBLR AND MULTI-MEI',IBER
DISTRICTS.

The Constitution of the United States protects the right

of all gualifieo citizens to vote and to have their votes counted.

n.y"9]9s_v. !ilsr 377 U.S. 533, 554, 84 S.Ct. L362, 1377, 12

L.Ed.2d 506 (I964). Inoeed, the Supreme Court has recognized that

"the right to vote freely for the candidate of oners choice is of

the essence of a democratic society, and any restrictions on that

right strike at the heart of representative government.' kgynofds

va_SiIs, suprar 377 U.S. at 554r 84 S.Ct. at L377. Moreover,

because "the right to exercise the franchise in a free and unimpair-

ed manner is preservative of other basic civil and political rights,

any alleged infringement of the right of citizens to vote must be

carefully and meticulously scrutinized." Id. at 560, 84 S.Ct. at

r380.

At 1arge, voting is not per se unconstitutional. E.9., City

of t'lobi1e v. Bolden, 446 U. S. 55, 57 , 100 S.Ct. 1490, 1494, 64

L.Ed.2d 47 (I980); wh_ite v=-Itegi:!SI , 412 U.S. 755, 765, 93 S.Ct.

2332, 2339, 37 L.Ed.2d 314 (1973). No 9roup, even if racially

identifiable, nas a right to elect representatives proportionate to

its voting power in the community. Clty_of tlglile v. Pold_en, supra,

446 U.S. at 79, 100 S.Ct. at 1506; Whitcgm!__v._Chavis, 403 U.S.

124,149,9r b.Ct. 1858, 1872,29 L.Eo.2d 363 (1971). Nonetheless,

"the right of suffrage can be denied by a debasement or dilution

of the weight of a citizenrs vote just as effectively as by wholly

prohibiting the free exercise of the franchise. " Reynolds v.

I.

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sims, supralzT u.s. at 555, 84 s.cr. at r3zB. O,r", a vote
dilution claim is a cognizable constitutional cause of action
under the appropriate circumstances. City of tlobile_v. Bolden,

supra, 446 u.s. at 65-66, 100 s.ct. at 1498-99; white v. Regester,

supra, 4L2 U.S. at 765-766, 93 S.Ct. at 2339; Leadership Roujrdtabts

v. City gE !i!!te Rock, 661 F.2d 701 (8th Cir. 1981); Lojlge_v,
Bgxtgt,939 F.2d 1358, !163 llth cfJ, 1281). congress in extending

the Voting Rights Act of 1955 gives in Section 2 the disadvantaged

voter the private right of action to enforce this constitutional
guarantee.

II. THE INEQUALITIES' OF MULTI-MEI'TBER DISTRICTS LEGISLATION
HAVE BEEN RECOGNIZED BY THE COURTS.

Many defects have been found in multi-member districts by

the Courts. Primarily, multi-member districts are said to ',sub-
merge" political, especiatly racial minorities.

ilur ti-member districts are particularry troubresome
because they may satisfy the 'one man, one vote" standard
where raw population data are concerned and yet effective-
ry negate the voting strength of large numbers of voters.
of course, since there are winners and rosers in every
election, it might be said that losers' votes are alwayl
'1ostr' and there is crearry nothing unconstitutionll
about such a result in itserf. But murti-member districts
have a pecuriar capacity to deny representation to raciaror politicar minority groups which could or would obtain
such representation if the polity in which they live were
divided instead into single-member constituencies. Among
the defects generally assigned to multi-member districti
ares first, their tendency by virtue of their winner-
take-aIr aspect to submerge minorities and to over-
represent the majority party or group as compared with
that party or group's polity-wide electoral position.
llallace v. House 5I5 F2d 619 ( 1975 ) .

It must be pointed out again, just as apples will continue to
fall from trees, the mathematical argument advanced by Banzhaf is a

valid defect noted in the multi-member district. These theories,
which were discussed in Whitcomb v. Chavis 403 US !24, 29 LE2d 363,

91 S Cr.

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1856 (197rrjstablish that residents of smaller 
!stricts 

are

denied equal representation due to the fact that multi-member voters

have a higher proportionate chance of affecting election outcomes.

Voters in multi-member oistricts also have the option of "weighting"
their votes.

Another flaw is that multi-rnember oistricts make the voting

process more difficult for the voter. It becomes more difficult for
the voter to make intelligent choices as the number of candidates

increases Simularly, the ballots become bulky and confusing. WaIlace

v. House 515 F2d 619 (1975).
In Chapman v. l,leier 402 VS 1, 42 LEd 2d 766, 95 S Ct. 75I

(1975) the Suprenre Court oiscussed the evils of nrulti-member

districts and noted the propensity of representatives from such

districts to act as a block. A11 the representatives trom such a

district tend to refleet the majority views helo in the community,

and this tendency creates an "ioentity of interest" gap between any

minority elements and the elected representatives, see also WaLlace

v. House supra.
A fifth problem identified where multi-member oistricts have

been drawn is that the residents of such a district come to feel
they have no representative who

This problem of "accountability"
v. tleier, 402 US 1, 42 LEd 2d

": 9r,gyi" 403 US 124, 29 LE

Lucas v. Co1o. Gen. Assembly

is especially responsible to them.

was noted by the courts in Chaplan

766, 95 S Ct. 751 (1975) Whitcomb

2d 363, 9I S Ct. 1858 (1971), and

3?7 US 7L3, 84 S Ct. 1459, t2 LEd

2o 632 (1964).
A more subtle, but none the less dangerous result of multi-

member districts is the greater propensity for control over the

nomination and election process by the majority party. The con-

trolling party organizations are able in multi-member districts to

control the selection of candidates. This aspect

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also affe".la rational voter's decision at the L r rn booth .

9ihitcomb v. Chavis 403 uS 124, 29 LE 2d 363, 91 S ct. lB5B (I971.

A related point expounded in Gravss_v:_Bernse 343 F. Supp.

704, affci. 409 us 808, 34 LEd 2d 68,93 s ct. 62, is the increased

costs a candidate must bear in order to run for office in a multi-
member district, as conrpared with his single district counter part
who need only communicate his nressage to a fraction of the people

embodied in a multi-member district. These handicaps placed on

political association by such schemes could be said to raise con-

st itutional guest ions under the lst Anrenciments guarantee of the

Freedom to Assemble.

of

v.

A much more compact and contiguous stat€rrr€Dt

multi-member districts is given by Justice Stuart

t'lcCulloch 142 N9{ 2d 355 at 3752

of the evils

in Kruidemier

g iven

large

If the Equal Protection clause is violated when certain
representatives are given an unegual number of con-
stituents, the converse is also true. The Equal pro-
tection clause is violated if certain constituents are
given an unequal number of representatives.

I'he Suprenre Court has stated that the case against
multi-member district is enhance<i whens (I) the district is

cl

a

and elects a substantial proportion of the seats in either House,

(2') the district is'mu1ti-nrember" in both houses of the State
Legislature, and (3) the State lacks a provision for multi-member

candioates to run from geographic subdivisions Whitcom! :'. thavis
403 VS L24 29.tEd 20 363, 91 S Ct. 1858 (1971). Such is the case at
bar.

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III. o^!"oRTroNMENT schEMrE rvHrcn ARBTTRARTLy eO cApRrcously
USES MULTI-MEMBER AND SINGLE T,IEMBER DISTRICl,S HAS BEEN
FOUND UNCONSI'I1'U1.'IONAL AS VIOLATIVE OF I'HE FOURTEENTH
A]yIENDT,IENT.

the plaintiffs intention that a haphazard

and f our nrembers d istr icts alonq s ioe of
violates equal protections

The Pugh Intervenors contend that the apportionment plarr as

aoopteo places multi-member ano sinqle member oistricts into a

crazy quilt and is either irrational or was designe<i to treat
concentrations of minorities in non-covered counties in a racially
oiscriminatory manner.

In Drew v. Scranton 229 F. Supp 3I0 ( 1964) tne Court consioereo

arrangement of two, three,

single members districts

lie are of course not dealing here with a case where allrepresentatives are elected at large so that each voter
has the same number of votes...as every other voterr oE
with a situation where all erect the sarne number of
members whether two or more. These situations oo not
violate the principar of one man one vote. But we think
that this principal means what it says. rt does not mean
f or example one man one vote in l,icKeesport, two votes in
clairton, three votes in [!ikiesky and four votes in
sewickly, which statute under consideration authorizes.
229 F. Supp 310, 336.

The Drew case was appealed to the Supreme Court ano vacated on the
basis that the Supreme Court of Pennsylvania hao declared the
Pennsylvania Statute invalid ano on other grounds not related to
this particurarly finding, 379 us 40, 13 LEd 2d 314 93 s ct. 2342.

rn Bglshef_vr_B1ogm 2o3 A2nd 556, the pennsylvania supreme

Court discusses the Pennsylvania Constitutional reguirement (similar
to Article II of the North Carolina Constitution) and concludes

at Page 572i

-7-



While we oo not believe that the creation of muLti-member
districts of itself would violate the Feoeral Constitution
simply because voters in a particular district (where
justified by population) would vote for two or more
representatives while those in another district would vote
for a lesser numberr w€ do believe that a legislative
scheme which creates single number districts and multi-
member districts in an arbitrary manner would be ob-
jectionable. tie would Ergree-wTEfr the district court,
however, that in absence of only reasonable justification
(historica] or otherwise) such oistricting might be the
result of gerrymanoering for partisan advantage ano in
that event would be arbitrary and capricious. In the
light of the constitutional pitfalls inherent in such
a districting scheme, it would be more prudent to
approach the matter of apportionment by setting up single
member districts unless valid and compelling reasons
exist which require the creation of some multi-menrber
districts. 203 A2d 556, 573.

In Kruiosn_ier_y. trrcCullough 142 N.Iry.2d 355, the Supreme Court

of Iowa considered a similar claim to that of the Pugh Intervenors

and required the apportionment plan then before it to contain

subdistricts in order to cure the constititional inequalities in an

arbitrary system of multi-member and single member districts. It
however referred to Butcher, supra as the Iaw of the case.

Graves v. Barnes 343 F. Supp.704 (L972), affd.409 US 808, 34

LEd 2d 68, 93 S Ct. 52r also addressed the issue of an irrational
method of selecting various areas of the State for multi-member

and others areas for single member districts and found this
treatment invidious due to irrationality.

IV. THE COURT SHOULD APPLY STRICT SCRUTINY WHEN ANALYZING PUGh
PLAINTIFFS EQUAL PROTECTION CLAIIT{S.

Constitutional questions under the equal protection clause

of the Fourteenth Amendment, generally have applied different
standards of justification depending upon the nature of the in-
fringement. hlhere the infringement is of a "fundamental right", a

strict standard of justification must be shown by the State to

o istr idts

-8-



justify limlng that right.
is not entitled to the normal

are constitutional.

Under such

presumpt ion

analy" O the State

e nac tment sthat its

Rather it is the State, not the co[rplainants wh j.ch must

carry the burdens of justification and demonstrate that the statute

has been structured with precision, anci is narrowly tailored to

serve legitimate objectives.

A case involving the right to an equal vote involves a

"fundamental" right ano the Pugh plaintiffs are entitled to have

their claim analyized uncier the basis of xstrict scrutiny.' The

court in Reese v, Da1las Cou!!:, 505 F2d 579, (1974 ) rev. on other

9cis., 421 US 477, 44 LEd 2d 312, 95 S Ct. 1706, stated although

the standaro for reviewing a district plan was not c1ear, the court

chose a strict standaro for a group of voters who v/ere not a racial
group. The court did that because it felt statutes burdening the

right to vote must pass close constitutional scrutiny. In addition,

the Dal1as_9ounty Court suggests the reason that political (ie.

residential) gerrymandering should be more closely scrutinized than

racial gerrlnrandering is because more difficult obstacles are

involveo in proving political gerrymanoering than in proving racial
garrymanoering where racial dilution can be proved by reliable

oemographic oata.

The court in examining a similar legaI controversy involving

numbered seat provisions in Dllrslon_v. Scolt, 336 F. Supp 206 (1973)

states the application of dual standards to multi-member districts

which had numbered seat provisions would violate equal protection.

"The selective and arbitrary application of the anti-single shot

Iaw, in some districts and not in others, denies to the voters the

equal protection of the laws and is unconstitutionalr" supra at p.

2t3.

-9-



Justr." Qevens in his concurring opinion in ,t1" v. tsolden

446 US 55, 64 L.Ed. 2d 47,100 S.Ct. 1490, (I980) stated that

districting practices that make an individualb vote in a heavily

populated oistrict less significant than an indivioualrs vote in

smaller district must be tested by the strictest of constitutional

standards, whether challenged under the Fifteenth Amenoment or the

Equal Protection Clause of the Fourteenth Anrendment.

CANDIDATES IN IYTULTI-MEI',ItsER JURISDICl.IONS
UNEQUAL PROTECTION OF THE LAW.

ARE AFFORDED

The concept of the right of a political candidate to equal
was

treatmenL/recognized in Graves v. Barnes, 343 F. Supp. 704 (1972)

affd. 409 US 808, 34 LEd 2d 68, 93 S Ct. 62. In that case, the

plaintiffs challengeo a Texas reapportionment scheme which oivided

some areas of the State into single member districts and others

areas into multi-nrember districts. In Graves the court recognized

that multi-member districting is not per se unconstitutional, that

equal protection requires uniform treatment of persons stanoing in

the same relationship, and that infringements on the right to
vote and the freedom of political association require a compelling

state interest to avoid equal protection questions.

"Whatever else may be said about single number versus multi-
member districts, it is clear that they create radically different,

inequal, expense problems for candidates who wish to run for office

in areas with very similar geographic and oemographic circum-

stancesr" Grades, 343 F. Supp.7l-g. The court did not decide on the

merits, however, that the unequal treatment standing alone would

evioence invioious discrimination. The Court did examine and find

wanting the State I s claims that

V.

-1 0-

a conrpelling State interest was



met by the l, 'wishes of the people', (b) that Orti-member
districts are constitutionally immune unless they dilute', or

"the historical use of multi-member districts in Texas".

(c)

The court analyzes the notion that multi-member oistricts or

multi-member oistricting schemes may be immune fronr constitutional

attack unless they dilute. In examining the right of citizens to

equal protection the Graves Court stated:

"vle simply point out that Whitcomb at no point discusssed
the relationship of multi-frG6Fdistricts to candidates
and po1 it ical associations. In addition, the Supreme
Court in Whitcomb was no faced with oifferent oistricting
treatment--Eldct-rted to similar metropolitan areas; the
large urban areas of Indiana were treated in the same
manner. There was an underlying rationale to the Whitcomb
discussion of multi-member districts in InoiariEfrF
State of Indiana argued that cities have city-wide
problems and should elect city-wide rePresentatives.
Whatever might sti11 be argueci concernirrg the various
factors within the justlfication for multi-member dis-
tricts in I{hitcomb, it is clear that Texas cannot offer
the same ra ['for its apportionment of its cities.
The different treatment of Houston refutes the Whitcomb
rationale at the threshold, and Texas confronts-aFF
tirely different Egual Protection guestion. Texas sirrply
cannot justify its cjifferent treatment of Houston can-
didates on the basis of Whitcomb because its own internal
inconsistenciedinitsffi'tofTexascitieseraseS
the general !!hitcomb rationale for maintaining multi-
member oistric-G-Til-Tetropolitan areas. Graves v. tiarnes
343 F.Supp. 7O4 at 722 (L972).

vI . VOTING AND ELECTION PRACTICES WHICH RESULT IN RACIAL
DISCRIMINATION ITIAY BE PROVED UNDER SECTION 5 BY EITHEK
PROOF OF INTENT OR PROOF' OF EFFECT.

The recent extensions of the Voting Rights Act (P.L. 97-205)

clarified the law as to the proof required to show a violation under

Section 2. The House of Representatives report No. 97-227 at Page

30 states:

- I1-



An aggregate of objective factors should De considered
such as a history of discrimination atfecting the rigltt
to vote, racially polarity voting which impedes the
election opportunities of nrinority group members, dis-
criminatory elements of the eLectoral system such as
at-large elections, a majority vote reguirement, a Pro-
hibition on single-shot voting, and numbered posts which
enhance the opportunity for discrimination, and dis-
criminatory slating or the failure of minorities to win
party nomination. All of these factors need not be proved
to establish a Section 2 violation.

In footnote 101 the Committee also suggests that there is an

alternative standard for proving that a voting proceoure is un-

Iawfu1, it is that "if a discriminatory purpose vras a motivating

factor, it would still be available to Plaintiffs in cases meeting the

requirements of viflage o_f Arl ington lgights_v-Istropo_1 ilglr Egusilg
Aulho5j-t:r 429 US 252 (1977)." Plaintiff s would not be required to

prove that a discriminatory purpose was the sole or even the primary

purpose for the challenged practice or proceoure, but only that it

has been a motivating factor in the decision.

The Senate keport outlines the factors to be considered

1. The extent of any history of official discrimination irr the
state or political subdivision that touched the right of
the members of the minority group to register, to voter oE
otherwise to partipate in the democratic processi

2. The extent to which voting in the elections of the state or
political subdivision is racially polarized;

3. The extent to which the state or political subdivision has
uSed unusually large election districts, majority vote
requirements, anti-single shot provisionst ot other voting
practices or procedures that may enhance the opportunity
for discriminating against the minority groupi

4. If there is a candidate slating process, whether the
members of the minority group have been oenied access to
that processi

-t2-



5. rn"Q*tent to which members of the minoritvQroup in the
state or political subdivision bear the effects of dis-
crimination in such areas as education, employment and
health, which hinder their ability to participate effect-
ively in the political process;

lihether political campaigns have been characterized
by overt or subtle racial appeals;

The extent to which members of the minority group have been
electeci to public office in the jurisdiction.

VII. THE HISTORICAL BACKGROUND OF THIS REDISTRICTING STATUTE
AND THE SPECIFIC SEQUENCE OF EVENTS LEADING TO THE
CHALLEI.]GED DECISION DISCLOSE A SERIES OF OFFICIAL
ACTIONS TAKEN FOR INVIDIOUS PURPOSES.

After receiving objections from tne Justice Department that

multi-member districts submerge cognizable minority interests, the

House Subcommittee met on January 28, 1982. Tney discussed a map

which showed varied concentrations of minority populations locateo

in the State. The Chairmarr recognized tlr. Leonard who outlined

the two options facing the committee; (t) "Safe approach" (draw

minority districts uniformly throughout the State) or (2) nrely on

the case 1aw" (draw minority districts only in areas covered under

Section 5).

The Subcommittee considered the criteria, including amendments

which specifically included recognizing areas of minority interests

ano voted to amend its criteria with the understanding that t*re

committee would not be "legalIy bound' to the criteria. The Chair

man limited the use of the committees staff for alternative plans.

6.

7.

-r3-



Represent ivet and spaulding oi""u"=? Mecklenburgawing, Brennan,

County and a series of proposals to divide non-covered counties.

The plans were offered by Kenneth Spaulding and rejected. Prior to

the vote, the Chairman reminded the committee that a oecision to

divide Mecklenburg County would lead to divisions in other non-

covered counties. A similar fate, with the exception of Randolph

County, met other proposals to divide non-covered counties. This

pattern of legislative behavior, although not so obvious is repeated

in the Senate. The decision by the legislature not to redi.strict
concentrations of minority voters in these areas markedly departs

from the decision reached in other areas of the state where such

concentrations exist. This double standard bears on the fairness

and impact of multi-member districts in North Carolina.

VIII. THE JUSTICE DEPART!,TENT I S FINDING OF DISCRII'{INATORY
EFFECT AS TO THE COUNTIES COVERED BY THE VOTING RIGHTS
ACT IS EVIDENCE OF DISCRII{INATORY EFFECTS IN THE NON-
COVERED COUNTIES.

The Justice Department in the present case interposeo object-
ions to the multi-member or at large districting schemes as to the

40 counties covered by the Voting Rights Act. These findings
are stipulated Exhibits (!1, N, & O), and reveal that the use of

multi-member districts in areas of cognizable minority populations

result in the dilution of minority voters by submergence. Official

acts and proceedings are presumed to be the product of a regular and

proper discharge of public duties. "Where some preceding acts or

pre-existing fact is necessary to the validity of an official act,
the presumption in favor of the validity of the official act pre-

sumes 1ega1 proof of such preceding act or pre-existing fact. 31 A

CJS, Evidence 146.

-1 4-



llhris factual finding is adnissable in addition to this presunPtion

r:nder Rrle 803 (8) , Federal Rrles of EVidence, as a facutal firding resulting

frcrn an investlgatiqr nnde pr:rsuant to autlrority gfanted [z Iaw.

the Stat€ does not. contend tlrat tfie use of at large election qfstsns

differ in tlreir effects in tlre covered and non-aovered crcunLles (Pttgh lst set

of Interrogatories Mnrber 49). Flsn ttrj-s identical result one can draw the

oLnrior-ls crcnclusion that r&rerever rmrlti*snber districts are used, they dilute

minority rrcElng strength. Itre State failed to nake ttris oLnrious conclusion.

lItE State has failed to nrake tluis logical inference before wtrere other

discriruinating praceices \€re revierned. In Dr.nston v. Scott, slpra., after the

Llrited States Attorney Cerreral objected to nr.rnbered seats and anli-single strot

voting reguirarents, tle State of tibrth CarouJra cca:Linued to use these devices

gntil declared unconstitutional due to tleir discriminatory u,se throughout the

State.

IX. TTIE POI,TCY T]NDffiLrl}nG ITIE STTIIES T]sE OF IU,'LTIMEMBER

DISTRTEIS IS 1TENTUJS IN $IAT TTIE PROCMURE OF I'SING
MT,LI:TMEMBER DISTRTCTS DITTERS !{ARKEDLY IN MEtrKLENBI're,
FORSYTH, DUR[A}4, A}TD Vu\KE FRCM $IE IJSE G|l MTTLIIIMEMBER

DISIRTCM IN SITIER. AREAS OE $IE SIAIE WIICTI IAVE
SIZAEEE @reNIIBAIICN{S ffi RrcITL MIIiPRIIY CITIZEITS.

rn s-pplgrrent to the r-egislatirze sunnary in ttris brief, the Pugh

intenrcnors hanre prepared an inder< of the legiislafirre tristory of t}te redistricting

decision h,tricfr evidences a oonscious state polic.y to treat concenU:atiqrs of

mlnorities d.iff&ent1y in different sections of tlre state. ltris sunna4z

eyidences the sequence of everrts leading r.p to the apportiorrrent effrctrlEnt, and

sheds light on tlre decisimmkers' purtrnse, Arlington Heights v. I'letuo llcusing

rlpratiqr, 429 U.S. 252, 50 L Ed 450, 97 S. CE. 55; and in addition this

"legislative history" is highly relevant

-15-



in showing contemporary statements made by members of the decision

making body. " Arlington supra, The Pugh intervenors make this

argument both for the purpose of showing Legislative intent at the

time of enactment, and to show the tenuous policy the state is

advancing.

The decision by the legislature not to redistrict concentra-

tions of minority voters j-n these areas markedly departs from the

decision reached in other areas of the state where such concentra-

tions exist. This double standard bears on the fairness and impact

of multi-member districts in North Carolina.

X. THE STATES ARGUMENT IN SUPPORT OF COUNTY LINES OR WHOLE
COT'NTIES, COMMUNITIES OF' INTEREST, OR PROTECTION OF
INCUIiIBENTS IS TENUOUS OR EVIDENCES INTEI{TTONAL DISCRT-
MINATTON.

In previous vote ililution cases courts have examined various

rationale for multimember district use. Some of these rationale

have been advanced by the defendants in this case to justify a

state policy behind the use of multimember districts.

In Perkins v. City of West Helena, 675 Y2 207, (1982) , the 8th

Circuit Court of Appeals discusses the testimony of an incumbent

alderman who opposed the election by ward because black voters

predominate his ward and that they would not elect him to represent

them. The court concludes this testimony supports an inference of

invidious intent (p. 214). In addition the court goes on to point

out that an additional circumstance to buttress the inference is

that officials who are directly re"sponsible for maintaining West

Helena's at large voting system are those who haye rejected reguests

to change this voting p1an.

-l-6-



oo
The court in Busbes v. Smit!r 549 Fsupp 494, (1982) Affd. 103 S

Ct. 809, a Section 5 voting case discusses the tenuous policy of
Georgia treating voting populations with the same double standard

that is applied in this case.'If the state determines to implement

a policy of perserving "communities of inteeresti it bears a heavy

burden under the act to demonstrate why such a policy would be

implemented in white residential areas". . . the court concludes,

divergent utilization of the "community of interest standaro is

indicative of racially discriminatory intent.'

-t7-



CONCLUSION

The Pugh intervenors respectfully request the Court to invalidate

N.C.G.S. 120-L and 120-2 as in vj-olation of Section 2 of the Voting

Rights Act and on the basis that the particular scheme violates the

Equal Protection Clause of the Fourteenth Amendment. The inherent

inequalities of multimember districts have been listed by numerous

courts. The particular mix of multimember and single member districts

is j,rrational and hence arbitraryand capricious and affords unequal

protection of the Iaw to both minority voters and candidates. Elections

in counties specifically covered have in addition to the inequities

previously cited are subject to the following:

(1) A majority vote run-off requirement

(2) Lack of geographical subdistricts
(3) Racially polarized elections
(4) Political campaigns characterized by overt

or subtle racial appeals

(5) A substantially underprivileged minority
(6) A lack of continued success at the voting booth

(7) At large elections.

In addition the Legislatures' decision not to redistlict in the

non-covered counties in the same manner markedly departs from the

decision the Legislature made in other areas of the State. This

decision making process reveals a callous attitude on the part of

those parties taking part in the procedure and one which the Pugh

intervenors contend indicate an intent to discriminate in view of

the Attorney Generalrs findings of fact and in view of the presumption

that the legislators knew the consequences of their actions.

-1 8-



This 21st day of July, 1983.

Arthur Donaldson
Attorneys for the Pugh Intervenors

-19-



SPEAKER

OPUGH 
rNDEx 'o "3?i?lH"lr"G 

rRANScRrPr a
THURSDAY, JANUARY 28, 1982, HOUSE SUBCOMMTTTEE

TAPE PAGE TOPIC

I 1 Opening Statement

1 3 Determination to leave most MMD the
the same

1 5 Suggestion that Justice Department
might also consider noncovered counties

1 7 Statement that "staff" would work onlX.
on leadership plan

I 11 Recognition of minority concentrations
for the creation of SMD's.

2 I Remark concerning ". . .our maps.. . " (Demo.
leadership?)

2 3 Discussion of demographic map (black
pop 40t or over)

2 5 Suggests creation of SII{D for all black
pop concentrations

2 6 Discussion of those involved in decision
process € Justice

2 L0 Reapportionment based upon rational state
policy

2 11 Notation- thqt proposed, plan may ehretch
ratioual state policy beyond limits

2 13-14 Suggestion, again, for creation of SMD
in all Black concentrations; statement
that numbers be perfect if they don't
create all SMD for blacks

(in response to guiery from Representative
D. Blue - Wake) decision over whether to
treat covered and noncovered counties are
a matter of policy

Li1ley

LiIley

Jones

Jones

Hale

Li11ey

Leonard

Leonard

Leonard

Leonard

lli 11s

Leonard

Leonard

ItIi 11s

Leonard

Lilley

Lilley

Leonard

2L6

. 3 4 Questionning item 4 in reapportionment
criteria

3 5 Statement that Criterj-a list is just
a guideline, not chisled in stone

3 7 Decision to adopt amended Reaportionment
, Cri-teria

3 I Statement admitting intention to go
no further than they have to

4 1 Gerrymandering in Guilford County to
create black'district



PUGH INDEX
1982, HOUSE

SPEAKER

T,iliTTi;I,*"
TAPE PAGE

TRANscRrpr , ExHrBrr #-, rnu$,v , JAIvuARY 28 ,

TOPIC

Further discussion of gerrymandering in Guilford

Discussion on Cumberland and Halifax counties

Realization that not creating SMD in noncovered
counties will bring a lawsuit

Discussion of whether or not all MI"ID have to be
cut into SMD

Discussion of suPremacy of US constiution and
acts of Congress over state constitution and
legislaturei its effect on the plan

Discussion of the conflict between action and
precedent and its impact on legal defense of
state pIan. (also discussion of submersion of
minority by putting Scotland & Hoke with
Robeson)

Reference to plan as a "pIea bargaining" attempt

Cohen

Jones

Jones

Leonard

Leonard

Spaulding
Leonard

Jones

4

4

4

4

4

4

9

11

L7

19-22

24-26



oo
PUGH INDEX TO REDISTRICTING TRANSCRIPT, EXHIBIT # , THURSDAY, JAI{UARY 28,
1982, JOrNT

SPEAKER PAGE TOPIC

Lawing 25 The "right" bLacks can hrin in Mecklenburg County

Leonard 26 SIUD in noncovered (i.e., Voting Rights Act) guestion
of policy, not lega1ity.

Leonard 27 Further discussion about noncovered counties

Nob1e &

i"".f, 3r, 
r Feasibility of creating black SMD in },lecklenburg

Leonard 30 Discussion of increasing black population in lst
district to please Justice



PUGH INDEX TO REDISTRICTING TRANSCRIPT, EXHIBIT * , THURSDAY, JANUARY
28, L982, SENATE

SPEAKER PAGE TOPTC

Mills 6 & 7 Elimination of reapportionment criterj-a ftem #4 (Crossing
County lines)

Rauch 10 Questionning logic of motion to eliminate ltem #4

Mills L2 Single member senate districts mixed with l4IvID

Sullivan L2 Defensibility of S!,IDIMMD mixture for reapportionment

Barnes 13 (?)Recommending SMD statewide

Itlills 15 (a) Inequality of SMD/MI{D combination
(b) Item 4 effect on SMD in future

Rauch 2l Opinion on outcome of criteria vote



PUGiI INDEX TO
Lssz, HousE .r1il3fril1;fl;il" 

TRANS.RTPT' ExHrBrr *-' rUEOY' FEBRUARY 2 '

SPEAKER TAPE PAGE TOPIC

Jones 1 1 Paternity of Reapportionment Criteria

Spaulding I 6-7 Statement on state's abandonment of only logical
stumbling block for the creation of SMD

Jones 1 10-1I Admission that proposed plan would invite a lawsuit

Jones 1 15 Recognition of GOP-suit

Jones I 16 Statement that necessary data to create SMD statewide
would be virtually impossible to put together on a
maP

Spaulding I 22 Feasibility of 2 minority distrj-cts in Mecklenburg

Jones 2 6-7 Discussion of possible lawsuit

Wallace 2 8-9 Assertion by A.G. office that reapportionment of one
form in covered counties and of another form in
uncovered counties is within rational state policy

Hege 2 L4 Conversation w/Wa1lace on Sl"lD ability to turn back
any court challenges -- Wallace hedqes.

Spaulding 2 L5 Admission that SMD were created to dilution in Mt{D

Jones 2 20 Discussion a denial that SMD created in East were
intentional thus repudiating rational state policy

Church 2 22 Admission that subcommittee had no input in drawing
up map

Jones 2 24 Directs that committee members not interfere w/staff

Jones 2 25-26 Discussion of concentration of minorities along I-85
urban areas (Mecklenburg, Forsyth, Guilford, Durha$,
Wake, etc. )

Hux 3 3-4 Complete surrender statement; treat the East like
the rest of the state

Jones 3 I Discussion of present, previous plan (a1so tirade
. .gainst Justice)

Jones 3 LZ Discussion on the availability of township, precinct,
and minority data

Nesbitt 3 16-17 Proposal to change Reapportionment Criteria

Blue & 3 & 2l u er"=tionning breakup of Randolph; considerationJones 4 I of final criteria

Jones 4 9 Initial separation of Stanly County as SMD (later
rescinded)



6

?ug! rNDEx ro Lqlllglllc rRANscRrpr, ExHrBrr {r_ , ruE*, FEBRUARY 2,
L982, HOUSE FULL COIITII{ITTEE

SPEAKER TAPE PAGE TOPIC

Jones & 4 20 Discussion that single-shoting would prevent sub-
Lilley mersion of minority in Scotland, Iloke, & Robeson

Jones 5 I Discussion of the gerrymandering of Avery County
(population 14,000)

Jones 5 1I Gerrymandering on partisan basis

BIue 6 I Concentration of blacks outside covered counties

Blue 5 4 Districts (black) under 50t

Blue 6 5-6 65t (bl-ack) as Justice rule of thumb



' PUGH rNDEx Trt3f,fil;lig. rRANScRrpr, ExHrBrr #-, wspf,.'ay, FEBRUARv3,
1982, HOUSE

SPEAKER TAPE PAGE TOPIC

Jones 1 1 Denying access of staff to representatives, except
to work on leadership's plan

Jones 1 3 Reiteration of above

Redding I 4-5 Accusation that Demo leadership shutting out all who
might oppose their plan by denying possibte opponents
access to staff

Jones 1 14 Establishment that Ivlecklenburg will remain an I
member IvIMD

Spaulding 1 18 Lack of minority representation from Mecklenburg

Spaulding 1 2L-23 As goes Guilfordr So should go Mecklenburg

Spaulding I 25 Legislature's lack of moral courage in not making
SMD statewide

Brennan 2 L-4 Defense of Mecklenburg MII{D

Jones 2 tI Do Guilford blacks have more rights?
Nesbitt 2 16-17 Decision to keep Mecklenburg MMD intact based upon

fear of GOP gains if blacks given their own districts



. 
PUGH INDEX 1.rgg2, sENArJo 

nf srRrcrrNc TRANScRrpr, ExHrBrr #-, TUEO,, 
''EBRUAR, 

g,

SPEAKER TAPE PAGE TOPIC

Frye 1 1 & 2 Support for SMD statewide € Pub1ic Hearing l2/4/g2land submission of 1st Comm Subs to create statewide
SMD for senate

Mi1ls 1 3-6 suggestion to introduce 2nd comm. subs.; showing that
MMD areas have undue influence in Commission appoint-
ments

Rauch 1 7-8 Ivlotion on Frye Substitute
Mil1s 2 7 Discussion of Creech proposal putting Harnett and Leenack in with Wake county

warren 2 9 statement opposing creech proposal

Heenan 3 3 Infeasibility of drawing 65t black senate district
Heenan 3 5-6 Making the committee substitute plan a better plan(i.e. , more defensible)
Hardison 3 14 Discussion of variance guidelines
Heeenan 4 6 Discussion of feasible minority percentages

Heenan 4 9 Discussion of percentages for N.E.

Rauch 4 11-12 Fryers motion for Guilford sltD & N.E. sMD

Raynor 4 12 Statement about moving townships in order to possibly
facilitate a candidate



puGH rNDEx ,o *ilrrRrcrrNc TRANscRrpr, ExHrBrr #
L982, FORMAL SESSTON SENATE

, ,u"ril", FEBRUARY s ,

SPEAIGR PAGE TOPIC

Rauch 10 Fina1 committee report for Senate Redistricting
l{ills 17 Motion to move bill back to committee to create aLl SMD

Lt. Gov.
Green 18 ltlotion fails



10

PUGH INDEX TO REDISTRICTING TRANSCRIPT, EXHIBTT # , WEDNESDAY, FEBRUARY IO,
L982, FORMAL SESSTON SENATE

SPEAKER PAGE TOPIC

Creech 5 & 5 Effort to precent creation of SMD consisting of Harnett,
Lee, & Southern Wake

Wynne 8 & 9 Citing of Republican strength in two member Wake district
in effort to support amendment wiping out SI1D consisting
of Harnett, Lee & So. Wake

Gray & 2l-23 Debate of partisanship involved in creating SMD in
Cockerham Guilford

Daniels 28-29 Points out advantages to incumbents of proposed plan
(intent to subvert minority party)



I1

o

2 Intro as comnittee substitute of Ballenger map
(SlO1 for state

8-9 Attempt to create subcommittee to come up with
Demo plan (SUO1

PUGH rNDEX TO REDTSTRTCTING TRAI{SCRrPT, EXHTBTT tt_ , TUESDAY, ApRrL 27,
L982, SENATE

SPEAKER PAGE TOPIC

Rauch

!{i11s



CERTITICATE OF SERVTCE

I hereby certify that I have this day served the foregoing

Trial Memorandum by placing a copy of same in the United States

Post Office, postage prepaid, addressed to:

Ms. Leslie Winner
l!1r. J. Levonne Chambers
Chamber, Ferguson, Watt, Wa11as,
Adkins & Fuller, P.A.

951 South Independence Boulevard
Charlotte, North Carolina 28202

Mr. Jack Greenberg
Mr. James M. wabritt, III
lv1s. Lani Guinier
10 Columbus Circle
New York, New York 10019

Ivlr. James M. Wallace, Jr.
Deputy Attorney General for
Legal Affairs

Post Office Box 629
Raleigh, North Carolina 27602

Jerris Leonard
Kathleen Heenan
Jerris Leonard & Associates, P.C.
900 17th Street, N.W.
Suite 1020
Washington, D. C. 20005

Wayne T. EIliott
Southeaste.rn Legal Foundation
1800 Century Boulevard, Suite 950
Atlanta, Georgia 30345

Hamilton C. Horton, JE.
450 NCNB Plaza
Winston-Salem, North Carolina 27J-1J.

This the 21st day of

Attorney
OF COI'NSET,:

HINTER, HODGI{AN, GREENE & GOODI4AN
POST OFFICE BOX 3245
GREENSBORO, NORTH CAROLINA 274A2
TELEPEONE: (919) 373-0934

July, 19.

for Plaintiff