Correspondence from Winner to Donaldson, Wallace, Horton, Hunter, Heenan, and Guinier; Proposed Stipulations 1

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P.A.USON. WATT, WALLAS, ADKINS &

ATTORNEYS AT LAW

SUITE 73O EAST INOEPENDENCE PLAZA

95I SOUTH INDEPENDENCE BOULEVARD

CHARLOTTE, NORTH CAROLINA 2A2O2
TELEPHONE (704) 375-8461JULIUS LEVONNE CHAMBERS

JAMES E, FERGUSON, II

MELVIN L WATT

JONATHAN WALLAS

KARL AOKINS

JAMES C, FULLER. JR

YVONNE MIMS EVANS

JOHN W GRESHAM

GILOA F GLAZER

LESLIE J, WINNER

JOHN T. NOCKLEBY'

'oF o.c. gaR aLso

Mr. Arthur J. DonaLdson
Burke, Donaldson, Hol_shouser

& Kenerly
309 N. Main Streer
Salisbury, North Carolina 28L54

Mr. James trIaLlace, Jr.
At-torney General's ef fice
North Carolina Department of

Justice
Raleigh, North Carol_ina Z.l602

I"Ir. HamiLton C. Horton, Jr.
Attorney at Law
450 NCNB PLaza
Winston, Salem, NC 27L0L

May 10, 1983

Mr. Robert N. Hunter, Jr.
Attorney at Law
20L W. Market Sitreet
Post Office Box 3245
Greensboro, North Carolina Zl4Oz

Ms. KathLeen Heenan
Jerris Leonard & Associates, pC
900 17th Srreer, N.W.
Suite L020
Washington, D.C. 20006

Ms. Lani Guinier
Legal Defense Fund
L0 Columbus Circle
Suite 2030
New York, New York L0019

on or
I will

Re: North Carol_ina ReapportionmentStipulations '-
Dear Everyone:

Attached is th-r! portion of the Gingles, plaintiff s proposedstipulations which we went over at our meeirirrg on uray^ 4.'
r will mail Ehe remainder of _our proposed stipuLationsbefore Nray 23 and will look forwaia-[o-i.""iving yorri".encLose the vitae of our experts at that time.
Just to confirm the rest of our-agr_eerrent, we wiLL quasi deposeTom Hoffler and Bernie Grofman in"washington on June 7. That



May 10, 1983
Page 2

is opposing counsel will have the opportunity to ask them
questions but there will be no court reporter present. I
prestrme this will- be done at Jerris Leonard's office. At
that time, we wiLl each have available for the inspection
by the other the raw data which these two experts have
based their analysis on. However, r:nless re(uested at that
time, we wiLl- not provide each other with copies of the
raw data. trIe will aLso pl-an to stay in trIashington on June
8 to finalize our stipulations.
It is-my further understanding that, in order to avoid going
to California to take Grofman's deposition, the State witt
pay Grofman's fare from Cal-ifornia to Washington. We will-
then cover his hoteL and other necessary expenses.

I think our day of haggl.ing was productive and that, while
we may not be exactLy on the same tracks, our efforts will-
make this trial much more expeditious and sensible.

Sincerely,

/4wl;,-
leU.{e J. winner

LJW: ddb
Enclosure



PROPOSED STIPI]LATIONS

I. Stipulations to Add to Chronology
(in chronological order)

1. On September L6, 198L Gingl-_es v. Edmisren,
81-803-CIV-5, was filed allegin he
apportionments of the North CarroLinffi-use of Representatives
and Senate violated the one person one vote requirement of
the Equal Protecti.on Cl-ause, iLLega1-Ly and unconstitutionally
diluted the voting strength of black citizens and that Article
II, $53(3) and 5(3) were being enforced without having been
pre-cleared pursuant to 55 of the Voting Rights Act.

2. On September , 1981-, North Carolina made its
initial submission of ArticLeII, 53(3) and 55(3) of rhe
North carolina constitution Eo the united states Department
of Justice pursuant to 55 of the Voting Rights Act. Ihis
submission was completed on October 1, l-981.

3. On February 4, L982, dt the public hearing the
North Carolina Black Lawyers Association submitted-a pro-
posed apportionment of the North Carol-ina Senate which
contained three black singLe-member districts. Each of
the single-member districts apportionment plan contained
continguous territory and had a population deviation of
lgss than plus or minus 57.. The statistics used to produce
this plan were obtained from the L980 census and are-
accurate. This apportionment incLuded a senate district
whol-ly within Mecklenburg Cor:nty which is 62.32 black and
a Senate district in northeast North Carolina which is
60 .72 b1ack.

4. At the public hearing on February 4, L9B2 the
North Carolina Black Lawyers Association presented a
proposed apportionment of the North Carolina House of
Representatives which contained ten majority bl-ack single-
member districts. This map included a single-member
district who11y within Wake County which is 677" bLack, a
singLe-qrember district wholly within Durham County whichis 7L.92 bLack, a single-member disrrict who11y within
Forsyth County which is 81.62 bLack, a single-memberdistrict in Mecklenburg county which is 69.92 black, and
an additional_s-r1gl_e-member district in Mecklenburg county
which is 56.82 b1ack. The single-member districts-in
this plan all contain continguous territory, have l-ess
than plus or minus 52 population devj-ation and are statis-tically accurate based on the l-980 census.



II. Additional Proposed Stipulations

1. The Court has jurisdiction over the subject matter
of this action pursuanr ro 28 U.S.C. S51331 and L343(a)(3)
and a(4).

2. A three judge court is properly convenied pursuant
to 28 U.S.C. S2284(a).

3. The court has jurisdiction over all parties to the
action.

4. Bernard Grofman is a political scientist with
specific expertise in election analysis, comparative electorial
systerns, voter behavior, and representation and redistricting
issues. Thad L. Beyle is a political scientist with particular
.expertise in 1oca1 and state government and l-ocal and state
election methods.

5. Alex Wil-lingham is a po1-itical scientist with particular
gxpertise in matters concerning voter registration, voter
behavior and demographic aspecis of participation in the
po1-itical process.

6.

7. Paul Leubke is a sociologist with particular expertisein the social and demographic basis of locaI and state politics
in the south.

8. Franke Rogers is a po1-iticaL science with special
expertise in Forsyth County election analysis.

g. Mecklenburg County can be divided into eight singLe-
member House districts with two districts over 607.-black in
populat ion. *

10. At its February, L982 session, the North Carolina
House of Representatives had avaiLable to it the proposal.
of the North CaroLina Association of Black Lawyeri, a
proposal presented by Representative Hege and a staff
drawn plan each of which contained two single-member districtsin Meckrenburg county which were majority black in population.
The plan developed by the member of the legislative- staff
included a district which was 66,L7" bLack in population and

(t
!

conti(fguous, reasonably compact,
deviation of less than plus or

be
and have a population
minus 52.

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a district which was 7L.22 bLack in population.

11. The Mecklenburg/Cabarrus County Senate district
can be divided into four single member districts with one
of the districts over 607" bLack in population.

L2. In February, L982, the General Assembly had before
it the pLan of the Black Lawyers Association and the plan
presented by Senator each of which created a single-
member Senate districffiflolly within Mecklenburg Counry
which was over 607" bLack in population. In addition, a
member of the legisLative staff deveLoped a single-member
district in Mecklenburg County which was 70.777" bLack in
popuLation.

13. The portion of Forsyth County which is in House
District 30 can be divided into five single member districts
with at least one of them over 607" black in popul-ation.

14. In February, L982, the General Assembly had avail-
able to it the plan of the B1-ack Lawyers Association and a
plan presented by Representative Hege each of which con-
tained a single member district who1ly within Forsyth Cor.rrty
which was over 802 bl-ack in population. In addition, a
member of the legislative staff had developed a single-
member district in Forsyth County which was 70,002 bl-ack in
population.

15. Durham County (House District 23) can be divided
into three fairly drawn singl-e member districts with one
of them over 607" black in popuLation.r.

16. In February, L982, the General Assembly had before
it the Bl-ack Lawyers Association apportionmenL which contained
a singl-e member district in Durham CounLy which was over 707"
black in population and the proposal of Representative Hege
which contained a single-member district within Durham County
which was over black in population. In addition, a member
of the LegislatfE staff had- dLveloped a single member district
for Durham County which was 70.9L2 black in population.*

L7 . Inlake County (House District 2L) can be divided into
six single member districts with one of them over 602 black
in population.*

18. In February, L982, the Legislature had available to
it the proposal of the Black Lawyers Association which contained
a single-member district in Wake County which was over 602 black

*Each district would be
and have a popul-ation
minus 57".

continguous, reasonably compact,
deviation of less than plus or

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in population and the proposal of Representative Hege
which contained a single-member district in Wake County
which was over 602 black in population. In addition,
a member of the legislative staff had prepared a single
member district for Wake County which was 68.57" bLack
in population.*

L9. House District 8 (Wi1-son, Edgecombe and Nash
Counties) can be divided into four single-member districts
with one over 602 bl-ack in populaLion.

20. In February, L982, and in April, L982, the Senate
Redistricting Committee was informed that a Senate district
coul-d be drawn in the area of Senate District 2 which was
607" b1-ack in population.

2L. In February, L982, the Senate Redistricting Cormnittee
had before it the proposal of the Black Lawyers Association
which contained a proposed single member district in the
general area of current SenaEe District 2 which was 60.77.
black in popuLation.

22. The transcript of those portions of the meetings of
the Senate Redistricting Conmittee, the House Redi-stricting
Conrnittee and the Senate fl-oor debate are accurate transcrip-
tions of those portions of the meeting which they proport to
transcribe. A11 transcripts which were made are aEtached
hereto as Exhibit through

23. Exhibits to of these stipulations are true and
accurate copies of the journals of the North Carolina House
of Representatives and of the North Carolina Senate.

24. A lower percentage of the bLack population than of
the white population is registered to vote in Mecklenburg,
Forsyth, Durham, Wake, Wil-son, Edgecombe, Nash, Halifax, North
Hampton, Hertford, Gates, Martin, Bertie, Washington and
Chalon Counties. Specifically, the percentage of the black
and white voting age population which is registered to vote
in each of these counties is as folLows:

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25. In February and April-, L982 the General Assembly
was aware that its failure to divide counties would resuit
in multi-member districts in Mecklenburg, Forsyth, Durham,
Wake, Wilson, Edgecombe and Nash Counties.

26. The General Assembly divided counties in the
apportionment of the House of Representatives and of the
Senate only when necessary to bring popul.ation deviation
under plus,or minus 57. or when necessary to obtain pre-
clearance from the United States Department of Justice
pursuanL to 55 of the Voting Rights Act of L965, as amended.

27. The vote abstracts, voter turnout figures, and
v-oter registration figures used by Bernard Grofman and
Thomas Hoffeler as the basis of their anaryses of raciallypolarized voting are accurate ind genui"".

28. The following in an accurare l-ist of the bl_ack
candidates who fil-ed to run in the indicated elections:

A. Meckl-enburg Countv

L978 Senate - Fred Alexander
1980 Senate - Fred Alexander
1980 House - Bertha Maxwell
L982 Senate - James PoLk
L982 House - Phil- Berry

James Richardson

B. Durham County

L978 Senate - Alexander Barnes
L978 House - Howard Clement

Kenneth Spaul,ding
1.980 House - Kenneth Spaul-ding
L982 House - Howard Cl-ement

Kenneth Spaul-ding

C. Forsvth Countv

L978 House - HaroLd Kennedy
Joseph Norme
C. C. Ross

1980 Senate - Moses Small
L980 House - Annie Kennedy

Joseph Norman
Rodney Sumter

L982 House, 39th District - C. B. Houser
Annie Kennedy

D. Wake Countv

L978 House - Dan Blue
1980 House - Dan Blue
L9B2 House - Dan Blue

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E. Nash Countv

L982 Congress
L982 N.C. House
L982 County Corilmlssion

llilson Countv

L982 Congress
L982 N.C. House
L97 6 Cor"rrty Comtission

Edgecombe Cor.rntv

L982 Congress
L982 N.C. House
L982 County Conrmission

Mickey Michaux
Otis Carter
Quentin Sunrrer

Mickey Michaux
Otis Carter
Grover L. Jones

Mickey Michar:x
otis Carter
Naomi Green
EarL lIcClain
J. O. Thorne

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o

29. Since 1915 North Carolina has had a majority
vote requirement for party primaries. It currently is
contained in N.C.G.S. S163-LL1 and reads as foLl-ows:

(a) Nomination Determined by Majority; Definition of Majority. - Except as
otherwise provided in this s_ection, nbminitions in primary eteitions ;h;iib;
determined by a-majority of.the-vote.s-cast. A majority within the meaning of
this section shall be determined as follows:

(1) If a nominee for a single office is to be selected, and there is more than
one. person seeking nomination, the majority shall be ascertained by
dividing the total vote cast for all aspirants by two. Any excess of thL
sum so ascertained shall be a majority, and the aspirarit who obtains
a majority shall be declared the hominee.

(2) If nominees for two or more offices (constituting a group) are to be
selected, and there are more persons seeking ndminitiori than there
are oflices, the majority sh_all be ascertained 5y dividing the total vote
cast for all aspirants by the number of positibns to b;filled, and by
dividing the result by two. Any excess ofthe sum so ascertained shall
!e .a mgjolity, and the qspiiants who obtain a majority shall be
declared the nominees. If more candidates obtain a-majbrity than
there are positions to be filled, those havine the hiehest vote (eiual to
the number of positions to be filled) shall-be declired the nominees.

G) Right to Demand second Primary. - If an insuflicient number of
aspirants receive a majority of the votes cdst for_a given oflice o" group ofofnces
in a. primary,- a second primary, subject to the-conditions specifr6d in this
section, shall be held:

(1) If a nominee for a single office is to be selected and no aspirant receives
a-majority of the votes ca,qt, the aspirant receiving the hiehest number
of votes shall be declared nominated by the appr"opriatetroard of elec-
tions unless the aspira-nt receiving the second liigliest number of votes
shall request,a second primary_in accordance riith ttre provisions of
subsection (c) of this s-ection.- In the second primary dnly the two
appiTants who received the highest and next highest numb6r of votes
sh-all be voted for.

(2) lf nominees for two or more offrces (constituting a group) are to be
selected and aspirants for some or all of the positi6ns ivittrin the group
do not receive a majority of the votes, those-candidates equal inium-
ber to the positioni--remain-ing to be filled and having'the highest
number of votes shall be declared the nominees unless s5me one6r all
of the aspirants equal-i! number to the positions remaining to be filled
and having the se-cond highestnumber-of votes shall requEst a second
primary_in -accordance with the provisions of subsectibn (c) of this
section. In the second primary to select nominees for the positions in
the group remaining to be filled, the names of all those-candidates
receiving the highest number of votes and all those receiving the
second highest number of votes and demanding a second primaryihall

.be printed on the ballot.

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30. In f983, Repfggentative Kenneth Spaulding, black, intro-
duced legislation, H8171, to reduce the majority vote require-
ment to 40"1 for primaries for the u.s. senate, congressional
seats, state-wide offices, the General Assembly and judgeships.
This bill was defeated in the House Elections Law commiEtee.-

31. On February 11, 1983 the North Carolina Institute
of Government Legislative Reporting Service publ-ished its
weekly srurrmary. Tl:.is sunmary contained an article on party
primaries and contained the following:

The majority voEe requirement for party primaries
is now limited to nine essentially single-party
states: North Carolina, Alabama, Arkansas, F1-orida,
Georgia, Mississippi, Oklahoma, South Carolina, and
Texas. The majority vote requirement, combined
with the Long ballot, means that sometimes there
will be extensive second primaries for minor
offices thaL generate litt1e voter interest. In
recent years the requirement has also been seen
as a barrier to the election of bl-acks. The L982
North Carolina elections illustrate both.

In the L982 Democratic primary in the second con-
gressional district, Mickey Michaux, a black,
received 447" of the vote, but was forced into a
run off with Tim Valentine, a white who had 332.
Valentine won that second primary and went on to
win the general election in the heavily Democratic
district.

This edition of the weekly sunmary was distributed to all legis-
lators prior to the defeat of House Bill L7L.

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