Draft Defendant-Intervenor's Memorandum in Opposition to Plaintiffs' Motion for Summary Judgment

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" MAR. -03’ 98 (TUE) 10:23 NAACP y ) DEFENSE TEL: 212 a 1594 P. 001 

  

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99 Hudson Street, Suite 1600 

New York, New York 10013 

  

  

   
      

  

From : Norman Chachkin 

Tel. : 212-219-1900 Fax :212-226-7592 Date : 03/03/98 Page(s) : 1 

  

      
  

To : Anita S. Hodgkiss, Esq. 

Ferguson, Stein 

Message : 
Anita: 

  

Ignore everything after cover sheet of previous fax; the software didn't do what | 

expected it would. | will fax you hard copy with corrections! 

Norman 

  
 



  

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF NORTH CAROLINA 

RALEIGH DIVISION 

CIVIL ACTION NO. 4:96-CV-104 

  

MARTIN CROMARTIE, et al, ) 
) 

Plaintiffs, ) 

) 
V. ) DEFENDANT-INTERVENOR’S 

) MEMORANDUM IN OPPOSITION TO 

JAMES B. HUNT, JR., et al., ) PLAINTIFFS’ MOTION FOR 

) SUMMARY JUDGMENT 

Defendants ) 

) 
and ) 

) 
ALFRED SMALLWOOD, ef al., ) 

) 
Applicants to Intervene as) 

Defendants. ) 

) 

STATEMENT OF CASE 

Three residents of Tarboro, North Carolina originally filed the complaint in this action on July 

3, 1996 challenging District 1 in North Carolina’s 1992 Congressional Redistricting Plan on the 

ground that it violated their equal protection rights because race predominated in the drawing of the 

district. Five voters in the First Congressional District filed a motion to intervene as defendants. That 

motion was never ruled on. Following a hearing on an Order to Show Cause, the action was stayed 

pending resolution of remand proceedings in Shaw v. Hunt, 517 U.S. , 116 S.Ct. 1894, 135 

L.Ed.2d 207 (1996). On July 9, 1996 the same three Tarboro residents joined the previous plaintiffs 

in Shaw 1m filing an Amended Complaint in that case, similarly challenging the First Congressional 

District. 

By Order dated September 12, 1997, the three-judge panel in Shaw approved a congressional 

 



  

2. The conservative onslaught. The Supreme Court’s decisions 
  

in this area consistently reflect a sharply divided Court; most 

have been decided by a 5-4 vote. Nevertheless, conservative legal 

organizations that, during their formative years received strong 

support from the Reagan and Bush administrations, and which now 

enjoy substantial funding from a set of right-wing foundations such 

as Olin and Bradley, have interpreted Adarand and the Shaw line of 

cases as sounding the death-knell for any focused efforts to 

improve the lot of African-American, Latino and other racial or 

ethnic minority citizens (or for women). Groups such as the 

Washington Legal Foundation and the Center for Individual Rights 

have embarked upon a campaign of litigation to disrupt and 

invalidate all sorts of programs, implemented by either public or 

private entities, that consider race, ethnicity or gender for the 

purpose of achieving diversity or some other broadly stated 

societal goal. The purposes of this campaign are several: to 

extend the Supreme Court’s rulings as far as possible before 

sympathetic lower court judges and thus change the reality of 

everyday practice in the nation before any change in Supreme Court 

personnel creates the potential for a shift in position; to tie up 

the resources of civil and human rights organizations in defensive 

measures; and to propagate the concept that devices such as 

standardized tests, far from having discriminatory effects, 

reliably capture an individual’s inherent "merit," which is the 

only appropriate basis for decisionmaking in allocating scarce 

resources such as jobs, college admission slots, etc. Not 

 



  

redistricting plan enacted on March 31, 1997 by the General Assembly as a remedy for the 

constitutional violation found in Shaw to exist in District 12, and dismissed plaintiffs’ claim that 

District 1 in the 1992 plan was unconstitutional as moot, without prejudice. 

On October 16, 1997, two of the original three plaintiffs, along with four residents of District 

12, filed an amended complaint in this action challenging the 1997 remedial congressional redistricting 

plan, as well as seeking a declaration that District 1 in the 1992 plan is unconstitutional. Within the 

time allowed for answering the amended complaint (the defendants having obtained an enlargement 

of time), three voters from the First District and six voters from the Twelfth District filed a renewed 

motion to intervene as defendants. To date, there has been no ruling on this motion. 

The plaintiffs have filed a motion for summary judgment and a motion for a preliminary 

injunction. The defendants have indicated their intention to file a cross-motion for summary 

judgment. A hearing in this matter is set for March 16, 1998. 

STATEMENT OF FACTS 

For nine decades, from 1901 until 1992, African-American voters in North Carolina were 

unable to elect a candidate of their choice to Congress. Their disenfranchisement was the result of 

conscious, deliberate and calculated state laws that both denied black voters access to the ballot box 

and effectively diluted their votes. See Gingles v. Edmisten, 590 F. Supp. 345, 359 (1984). Poll 

taxes, literacy tests, anti-single shot voting laws, at-large and multi-member election districts were 

S 
all measures employed, particularly in the eastern part of the state. /d., Sée also, North Carolina’s 

IN 
J 

Section 5 Submission, 1997 Congressional Redistricting Plan, submitted to the U.S. Department of 

Justice, April 7, 1997, consisiting of 5 volumes presented to the Court under the Affidavit of Gary 

O. Bartlett, by Defendants with their response to the summary judgment motion, [hereinafter “1997 

 



  

surprisingly, such measures correlate best with familial economic 

status and prior advantage, rather than with more holistic 

evaluations of human potential. 

The short-term outcome of this campaign, unless it is 

vigorously contested, will be to eliminate traditional "affirmative 

action" programs of the sort authorized by Bakke. The longer-term 

impact will be to establish the principle that there is no longer 

a justification for even remedial race-conscious activity in our 

society, even were it to be ordered by courts after evidentiary 

hearings and findings of intentional discrimination. Both of these 

developments will go far toward halting the progress that has been 

made in the last fifty years in overcoming the legacy of slavery 

and official discrimination in the United States. (Consider, for 

example, the dramatic reductions in African-American enrollment at 

the Texas and Berkeley law schools in the wake of Proposition 209 

and the Hopwood decision.) For that reason, it is essential that 

as many of these new lawsuits as possible be contested, to defeat 

if possible or at least to delay the elimination of affirmative 

action while we seek also to reform selection, admissions and 

assignment procedures in education and employment (among other 

areas) to eliminate bias. 

3. LDF’s response to the challenge. You know well of the 
  

cases that have been brought during the last half decade, starting 

with Podberesky v. Kirwan, 38 F.3d 147, amended, 46 F.3d 5 (4th 

Cir. 1994), cert. denied, 514 U.S. 1128 (1995) and Hopwood v. State 

of Texas, 95 F.3d 53 (5th Cir.), cert. denied, 116 8S. Ct. 2581, 135 

 



Submission’’], Report of Morgan Kousser at Attachment 97C-28F-3B; Affidavit of David Goldfield, 

submitted by Defendants. Specifically with regard to congressional districts, in the 1970 and 1980 

redistricting plans, the General Assembly state intentionally fragmented the black vote in the 

northeastern portion of the state to make sure black voters could not garner enough support to elect 

their candidate to Congress. 1997 Submission, Report of Morgan Kousser. Racial appeals in 

campaigns were used by white candidates to dissuade white voters from supporting black candidates. 

1997 Submission, Report of H. Watson. 

The ability of black voters to participate in congressional elections has continued, to this day, 

to be hindered by the continuing effects of past official discrimination. For example, the legacy of 

literacy tests, in use until the mid-1970's, and poll taxes continues to be reflected in the fact that black 

voters are registered to vote in lower percentages than white voters. In 1960, statewide only 39.1% 

of the black voting age population was registered to vote, compared to 92.1% of the white voting 

age population. Gingles, 590 F. Supp. at 360. In the majority-black counties, all located in eastern 

North Carolina, fewer than 20 percent of the black population was registered to vote in 1960. 

Affidavit of David Goldfield at 5. By 1980, statewide 51.3% of age-qualified blacks and 70.1% of 

whites were registered. Gingles, 590 F. Supp. at 360. In 1993, 61.3% of blacks and 72.5% of whites 

who were eligible to vote were registered. 1997 Submission, Attachment 97C-28F-3B, Defendant- 

Intervenors Stipulation. No. 63. 

Elections in North Carolina in the 1990's unfortunately continue to be marred by direct 

appeals to race designed to discourage white voters from voting for black candidates. Willingham 

report. In addition, in 1990, large numbers of qualified black voters were anonymously sent post 

cards which misrepresented state law and threatened them with criminal prosecution if they tried to  



  

L. Ed. 24d 1095 (1996). LDF, as you also know from personal 

experience, was involved in both of these suits, representing 

African-American students as parties who were allowed to intervene 

in Podberesky and attempted intervenors in Hopwood. But these 

cases are just the beginning of the challenges that we face. Let 

me outline some of the other actions that have been brought. 

In Georgia, the same lawyer who initiated the Georgia "Shaw" 

case, Miller v. Johnson, 515 U.S. 900 (1995), appeal from remand, 

Abrams v. Johnson, 117 8. Ct. 1925, 138 L. Ed. 24 285 (1997), is 

now representing a group of plaintiffs seeking to invalidate 

affirmative action in admissions within the University of Georgia 

system of higher education and to alter admissions standards at 

historically black institutions within that system in a manner that 

would drastically reduce access to post-secondary study for many 

African-American students in that state. This lawsuit is pending 

before one of the judges who sat on the three-judge court in 

Miller. LDF represents a group of African-American students and 

the Georgia State NAACP as intervenors and this case, which demands 

an enormous commitment of resources, is expected to go to trial 

this year. This same attorney has also intervened in a pending 

school desegregation suit (originally filed as a statewide action 

in 1969) involving Troup County, Georgia to challenge racial 

controls on admissions to magnet schools created as part of a 

consent decree approved by the Court. The argument is that such 

race-conscious measures are no longer justifiable even as part of 

court decrees in discrimination suits. LDF has represented a 

 



vote after having recently moved. 1997 Submission, Attachment 97C-28F-3B, exhibits 525-531. 

Black voters as a whole are less well-educated, lower-paid, more likely to be in poverty, and have less 

access to basic instruments of political participation such as telephones and cars, than do their white 

counterparts, adversely affecting their ability to elect candidates of their choice. 1997 Submission, 

Attachment 97C-28F-3b, Defendant-Intervenor Stipulations. 

It remains true that, in this century, no black candidate other than Ralph Campbell, State 

Auditor, has ever won a statewide election contest for a non-judicial office. No black candidate has 

won election in a majority-white congressional district, even though strong candidates repeatedly 

sought election in the 1980's in the Second Congressional District which was over 40% black. 1997 

Submission, Attachment 97C-28F-3B, Statement of M. Michaux. Majority-minority election districts 

for the state legislature have proven to be opportunity districts for white candidates as well. White 

candidates have repeatedly been elected in state house and senate districts that are majority-black. 

1997 Submission, Attachment 97C-28F-3B, Stipulation Exhibit 34 at 25. No single-member 

majority-white state legislative district has elected a black candidate to the state legislature. 1997 

Submission, Attachment 97C-28F-3B, Stipulations 13, 18. 

In North Carolina elections, white voters decline to vote for black candidates in numbers 

sufficient to keep the black candidate from winning. A study of 50 recent elections in which voters 

have been presented with a choice between African-American and white candidates, including 

congressional elections, statewide elections and state legislative elections, found that 49 of the 50 

were characterized by racially polarized voting. 1997 Submission, Attachment 97C-28F-3B, Report 

of R. Engstrom. In every statewide election since 1988 where voters were presented with a biracial 

field of candidates, the voting patterns indicated significant racially polarized voting. /d. In all except  



statewide class of African-American students as intervenors in this 

case since its inception and we are vigorously engaged in fighting 

these new arguments. 

The same claims have been raised in the Charlotte, North 

Carolina school desegregation suit: the case that first established 

the authority of federal courts to order transportation of students 

as part of a desegregation remedy, Swann v. Charlotte-Mecklenburg 

Bd. of Educ., 402 ‘U.8.:"1 (1971). LDF is working together with 

Julius Chambers’ former law firm to preserve the integration remedy 

in this case. 

We have also become involved in the Boston Latin High School 

litigation, growing out of Judge Garrity’s previous ruling striking 

down a 35% floor on minority admissions to the school that had been 

continued in effect by the Boston School Committee following 

dismissal of the historic Boston school desegregation case. See 

McLaughlin v. Boston School Committee, 938 F. Supp. 1001 (D. Mass. 

1996). That case typifies the difficulties we encounter in trying 

to preserve affirmative action. After Judge Garrity’s ruling, the 

School Committee appointed a Task Force to recommend an interim 

admissions procedure. The Task Force compromised on a plan that 

admits half the entering class based on an index combining a 

student’s score on a test developed for elite private schools and 

grades in selected courses during the years preceding application, 

and the other half of the class based on racial proportions in the 

remaining "qualified" applicant pool (those applicants with index 

scores in the top half of the year’s applicant cohort). Because  



  

two low-profile contests, racially polarized voting was sufficient to defeat the candidate chosen by 

black voters. 

Patterns of racially polarized voting continued in the 1996 senate campaign between Harvey 

Gantt and Jesse Helms. The regression and homogeneous precinct analyses show that statewide, 

Gantt received between 97.9 and 100% of the African-American vote, and between 35.7 to 38.1% 

of the non-African-American vote. 1997 Submission, Attachment 97C-28F-3B, Engstrom Letter 

dated Feb. 7, 1997. The same election shows that white bloc voting was greater in the northeast 

region of the state. Looking at the counties which were included in District 1 of the 1997 remedy 

plan, it appears that the vote in this area is more racially divided tan state as a whole. Mr. 

Gantt received from 96.6% to 100% of the black vote, and only 24.9 to 29% of the white vote. 1d. 

All of this information about the historical exclusion of black voters, the continuing use of 

racial appeals, the socio-economic disparities affecting black voters’ opportunities to participate in 

the election process, and lack of success of black candidates, and the continuing prevalence of racially 

polarized voting was provided to the General Assembly before it passed the 1997 remedy plan on 

March 31%, including the most recent analyses of polarized voting that identified the level of racially 

polarized voting in northeastern North Carolina. Se Gite to submission) In crafting a remedial plan, 

  

the North Carolina General Assembly was aware of the potential that the failure to draw a majority- 

black district in the northeastern region of the state might subject them to liability under Section 2 of 

the Voting Rights Act. 

The initial congressional redistricting plan passed by the General Assembly in 1991 contained 

one majority-black district in the northeast which was 55.69% black in total population and 52.18% 

black in voting age population. 1997 Submission, Attachment 97C-28F-3B, Stipulation Exhibit 10. 

 



  

that plan, while it sharply reduces the number of African-American 

and Latino students admitted to Boston Latin compared to previous 

years, still considers race, it has been challenged in new 

litigation, Wessman v. Boston School Committee, No. 
  

(D. Mass.). 

The Boston School Committee, as best we have been able to 

determine, is defending its present system only on grounds of 

"diversity" and unspecified continuing effects of the prior dual 

system. As you will appreciate, in light of the Supreme Court’s 

refusal to hear either Podberesky, Hopwood or the Proposition 209 

case, the ultimate value of the "diversity" justification is open 

to question, at least before the present Court. As to the prior 

dual system, this defense also appears problematical to us because 

of the earlier finding that the effects of that discrimination had 

been eliminated to the extent feasible (the Supreme Court’s 

operative test announced in Board of Educ. of Oklahoma City v. 

Dowell, 498 U.S. 237 (1991) and Freeman v. Pitts, 503 U.S. 467 

(1992)) and Judge Garrity’s dismissal of the underlying lawsuit. 

We have therefore sought twice to participate in the case to 

represent the local NAACP branch and African-American and Latino 

parents and students, in order to preserve the constitutionality of 

race-conscious considerations in the Latin High admissions process 

-- if not to sustain fully the current policy. Our thesis is that 

rank-order admissions based on the composite index score, even of 

only half the entering classes, has an unjustified adverse impact 

 



  

The 1992 plan contained two majority-black districts, while the 1997 remedy plan has just one. The 

First and Twelfth Districts in those plans have the following populations: 

  

  

  

  

              

1992 Dist. 1 1997 Dist. 1 1992 Dist. 12 1997 Dist. 12 

Total Black 57.26% 50.27% 56.63% 46.67% 

Total White 41.61% 48.62% 41.80% 51.59% 

Vot. Age Black 53.40% 46.54% 53.34% 43.36% 

Vot. Age White 45.49% 52.42% 45.21% 55.05% 
  

Source: Attachment 97C-27A-1; Stipulation Exhibit 10. 

The 1997 remedial plan has just one majority black district, which is only 50.27% black in total 

population. This is seven percentage points lower in black population than the 1992 plan, and over 

five percentage points lower than the original 1991 congressional redistricting plan. District 12 in 

the remedial plan is no longer a majority-black district. The black population in District 12 is ten 

percentage points lower than it was in the 1992 plan. 

In 1997, the General Assembly had two primary redistricting goals: to remedy the 

constitutional defects in the 1992 plan, including the predominance of racial considerations in the 

shape and location of District 12, and the potential constitutional defects in District 1 in the 1992 

plan. 1997 Submission, Vol. I, Commentary at 9. This goal was accomplished by emphasizing a 

variety of redistricting principles, including: 

1. Avoiding dividing precincts entirely and counties to the extent possible; 

2. Avoiding using narrow corridors to connect concentrations of minority voters; 

3. Striving for geographical compactness; 

4. Pursuing functional compactness by grouping together citizens with similar interests 

and needs; 

 



  

upon minority applicants and likely violates Title VI of the Civil 

Rights Act of 1964. 

Not surprisingly, the Boston School Committee disavows any 

potential discriminatory effects of its composite-index procedure. 

The week before last, Judge Tauro again rejected our request for 

intervention on the ground that we seek to introduce evidence 

(about adverse impact of the composite index) that is unrelated to 

the claims of any party to the lawsuit. In other words, the 

beneficiaries of affirmative action have no right to participate in 

the litigation to offer what may be stronger legal justifications 

for the programs they wish to preserve than the governmental agency 

is willing to put forth. This ruling leaves us with little choice 

but to prepare to challenge the index admissions procedure as 

violative of Title VI, in an effort to preserve some access for 

minority students to enter Boston Latin and similar schools in that 

city if, as we fear may occur, the judge holds the present interim 

procedure unconstitutional and the School Committee in response 

eliminates all racial factors from the admissions process. Such a 

suit will be an even more difficult and expensive undertaking than 

what we anticipated doing as a party to the Wessman litigation. 

Similar issues arise in the Center for Individual Rights’ 

cases against the University of Michigan’s admissions procedures 

for undergraduates and law students. Although the ultimate grounds 

upon which the University will seek to defend its policies are not 

yet clear, what does seem evident, and what is reinforced by LDF’s 

experiences in Hopwood and Wessman, 1is that African Americans 

- 10 - 

 



  

5 Seeking districts that allow good communication among voters and their 

representatives. 

The second primary goal was to preserve the even six and six partisan balance in North 

Carolina’s current congressional delegation. /d. This partisan balance reflects the existing balance 

between Democrats and Republicans in the state. In addition, with the State House controlled by 

Republicans and the State Senate controlled by Democrats, the only plan the General Assembly would 

be able to agree on is one that did not improve either party’s electoral chances over the status quo. 

The General Assembly felt, as a matter of policy, that the legislature was more suited to 

accomplishing the multi-factored balancing that is required to meet the needs of voters in very 

different regions of the state in a redistricting plan, rather than leaving the task to the Court. Thus, 

preservation of the existing partisan balance became a driving force in locating and shaping the 

congressional districts. An entirely new configuration would not have been politically acceptable. 

During the 1997 redistricting process, the General Assembly rejected plans that would have 

created a second majority-minority district in the area eastward of Charlotte to Cumberland and 

Robeson Counties on the ground that such a district would have combined urban and rural voters 

with disparate and divergent economic, social and cultural interests and needs. In addition, that 

district would have thwarted the goal of maintaining partisan balance in the state’s congressional 

delegation. 1997 Submission, Vol. I, Commentary at 10. Several groups and individuals, including 

the North Carolina Association of Black Lawyers and State Representative Mickey Michaux, 

objected to the 1997 remedial plan because, in their view, it dilutes the vote of African-American 

voters in certain areas of the state and “deliberately separates large politically cohesive African- 

American communities.” See Shaw v. Hunt, No. 92-202-CIV-5, Memorandum in Support of Motion 

 



  

cannot depend upon governmental agencies that are responsive 

(directly or indirectly) to the majority of the electorate to make 

the strongest case for affirmative action. Thus, even though we 

are unable at this moment to identify the enormous resources that 

it will take, LDF is working with a substantial number of African- 

American attorneys in Michigan on intervention papers in the 

undergraduate case. There is no question that by virtue of its 

size and reputation, the University of Michigan has been 

deliberately selected as a test case by the Center for Individual 

Rights; an effective defense is therefore critical. 

Although not directly involved at this time, LDF has also been 

consulted regularly by lawyers involved in the Center for 

Individual Rights’ suits against the University of Washington Law 

School and Alabama State University (ASU). The latter case 

challenges other-race scholarships at ASU required by the federal 

district court as a remedial measure in Knight v. Alabama, ____ F. 

Supp..: .. (N.D. Ala. 199 ), aff’d in relevant part, "PF.34 

(11th Cir. 199 ) and is a good example of the breadth of the 

challenge to race-conscious remedies, not just voluntary 

affirmative action measures, that is now under way. 

Of course, the legal challenges are not limited to the 

education arena. They encompass both efforts to construe existing 

anti-discrimination statutes very narrowly so as to prohibit 

voluntary "affirmative action" and broader arguments that the 

"effects" test incorporated in Title VII of the 1964 Civil Rights 

Act, see Griggs v. Duke Power Co., 401 U.S. 424 (1971), is 

- 11 - 

 



  

to Intervene, filed April 15, 1997. The plan favored by these groups also would have combined the 

African-American voters in Charlotte with minority voters, including African-Americans and Native- 

Americans, in the rural areas southeast of Charlotte. 

The court in Shaw v. Hunt approved the General Assembly’s 1997 remedial plan as “having 

adequately remedied the specific constitutional violation respecting former congressional District 12 

that was found by the Supreme Court of the United States in Shaw v. Hunt, 116 S. Ct. 1894 (1996).” 

Shaw v. Hunt, No. 92-202-CIV-5, Order filed September 12, 1997. 

ARGUMENT 

Standard for Granting Summary Judgment 

The governing standards for determining whether summary judgment is appropriate were 

most recently summarized by the Fourth Circuit as follows: 

Summary judgments are appropriate in those cases where there is no genuine dispute 

as to a material fact and it appears that the moving party is entitled to a judgment as 

a matter of law. Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 

157 (1970). On summary judgment, any permissible inferences to be drawn from the 

underlying facts must be viewed in the light most favorable to the party opposing the 

motion. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587- 

88 (1986). However, where the record taken as a whole could not lead a rational trier 
of fact to find for the non-moving party, disposition by summary judgment is 

appropriate. Id. at 587; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 

(1986). 

United States v. National Financial Services, Inc., 98 F.3d 131, 135 (4™ Cir. 1996). 

Summary of Argument 

The plamtiffs have moved for summary judgment on two separate grounds. First, they argue 

that the 1997 remedial congressional redistricting plan is “fruit of the poisonous tree” and therefore 

unconstitutional. Second, they argue that race predominated in the drawing of Districts 1 and 12 in 

 



  

unconstitutional even as applied to governmental employers, on the 

theory that Section 5 of the Fourteenth Amendment authorizes 

Congress only to prohibit conduct that would itself violate the 

Constitution, i.e., intentional discrimination, see Washington v. 

Davis, 426 U.S. 229 (1976). LDF is actively involved in resisting 

these efforts. For instance, we filed an amicus curiae brief in 

City of Boerne v. Flores, 8S. Ct.  _  ,.138 L. EA. 24 624 (1997) 

arguing that whatever result the Court reached with respect to the 

Religious Freedom Restoration Act, it should not cast doubt upon 

Congress’ broad remedial authority under Section 5 to reach racial 

discrimination in voting or other areas; the Court’s opinion 

strongly reaffirmed the important ruling to this effect in 

Katzenbach v. Morgan, 384 U.S. 641 (1966). We have briefed the 

Title VII issues as amicus curiae in an important lawsuit now 

pending in the Middle District of Alabama, Reynolds v. Alabama 

Dep’t of Transp., No. (M.D. Ala.). We served as counsel   

to the Black Leadership Forum, which spearheaded an effort to 

settle and thus remove from the Supreme Court’s reach a potentially 

disastrous case with bad facts that could have led to a ruling that 

overruled Weber and held all voluntary affirmative action by 

private or public employers violative of Title VII, Piscataway 

Township Bd. of Educ. v. Taxman, 91 F.3d 1547 (3d Cir. 1996), cert. 

dismissed, 66 U.S.L.W. 3393 (U.S. December 2, 1997). 

The one thing that is certain is that more litigation by the 

ideological right wing will be forthcoming. To meet it, LDF sorely 

needs additional resources, not only to support the work of our own 

- 12 =- 

 



ki 

the 1997 remedial plan and that these districts do not satisfy strict scrutiny. Plaintiffs first theory is 

a completely novel, and unworkable, proposition that has never been followed by any court that has 

examined what standards apply when a jurisdiction is remedying a voting rights violation. Plaintiffs 

second theory is without factual support. For these reasons, defendants’ cross-motion for summary 

judgment should be granted. 

THE STATE LEGISLATURE IS NOT REQUIRED TO COMPLETELY 

REDESIGN CONGRESSIONAL DISTRICTS IN ORDER TO REMEDY A 

SHAW VIOLATION 

Plaintiffs contend that the new North Carolina congressional redistricting plan should be 

declared unconstitutional because it is fruit of the poisonous tree of the prior redistricting plan held 

to be unconstitutional. Essentially, plaintiffs would have this Court hold that if a state does not 

completely discard the original challenged plan before developing its new remedial redistricting plan, 

that new plan should be held unconstitutional. Plaintiffs’ argument reflects a misunderstanding of the 

current state of voting rights law and an unrealistic view of the redistricting process, during which 

the state must engage in a complex balancing of many competing interests. ; 

a ty yd as oe 1g AE SAY 
When curing a violation, states have a legitimate interest in minimizing the disruption of its- 

political process, for example, by ensuring that prior partisan balances are maintained and the 

surrounding districts are preserved to the extent possible. Courts have recognized the necessity of 

jurisdictions considering these issues, giving states deference in the redistricting process, see Miller 

v. Johnson, 515 U.S. 900, 115 S.Ct. 2475, 2488, 132 L.Ed.2d 762 (1995); /Scott v. United States, 

920 F. Supp. 1248, 1255 (M.D. Fla. 1996), |White v. Weiser, 412 U.S. 783, 794-95 (1973) 

d   

  

granting states the first opportunity to propose a remedial plan after a voting rights violation is found.  



  

staff but to secure the assistance and services of others, 

particularly former LDF staff and leading cooperating attorneys 

around the country, in this campaign; and, of course, to defray the 

substantial costs of participating in this litigation. 

Finally, we recognize that it is necessary but not sufficient 

to defend affirmative action and race-conscious remedies only in 

the courts. As a founding member of Americans for a Fair Chance, 

we strongly support and have been integrally involved in its broad 

public education activities. LDF has valuable experience in this 

arena, not only through the public education work of our Los 

Angeles office at the time that Proposition 209 was before the 

electorate, but more recently as a result of our involvement in 

assisting supporters of affirmative action to defeat a negative 

referendum measure in that city. 

We continue to support fully the work of Americans for a Fair 

Chance, and that organization must be an integral part of any 

strategy aimed at preserving race-conscious remedies and voluntary 

affirmative action for racial minorities. At the same time, AFC 

has a broader charter, encompassing in particular gender as well as 

racial and ethnic concerns. It in no way diminishes the important 

work of that organization for us to suggest that in this time of 

extraordinary crisis, when African Americans in particular face a 

coordinated, well-financed and effectively publicized campaign that 

seeks to undo decades of racial progress, AFC’s activities must be 

supplemented by adequately funded, targeted informational and 

educational work addressed specifically to the continuing salience 

 



McDaniel v. Sanchez, 452 U.S. 130, 150 n.30 (1981). These rulings reflect an understanding and 

endorsement of the delicate balance between these competing interests which states must strike in 

drawing redistricting plans. 

Plaintiffs would put the state in the untenable position of completely disregarding the 

complexity of the redistricting process in the course of curing a constitutional violation. Given the 

realities of the redistricting process, plaintiffs’ approach makes little real-world sense, as the 

construction of a district typically does not occur by the state considering isolated, unrelated factors. 

The creator of a plan which cures a defect with one district, considering a mass of political, 

geographic, and demographic data and a mix of redistricting policies, does not make redistricting 

decisions without regard to the effect on the overall profile of the plan. The reasons for each 

redistricting decision cannot fairly be evaluated in isolation. Thus, in the development of remedial 

plans, states routinely and legitimately take into account the effect of making any changes to the 

original plan, as this could impact the opportunity to maintain prior political balances. In the course 

of curing a constitutional violation, it would, therefore, be entirely realistic for a state to seek to make 

the least alterations possible to a plan, if doing so would assist in meeting its other redistricting goals. 

Plamtiffs’ argument would seriously impact the settlement and remedial process in voting rights cases, 

as the state could not A which both cure statutory and Constitutional objections 

while also taking into consideration the state’s legitimate political interests. 

In essence, plaintiffs’ argument is an attempt to mask their primary objection to the 1996 plan: 

the fact that the remedial plan maintains two districts with substantial black populations. For 

plaintiffs, it is constitutionally fatal for a plan designed to remedy a finding of unconstitutionality to 

also create such districts. This standard, however, is incompatible with the holdings of the Supreme 

10  



of race and racial discrimination in the United States. With the 

support of the Ford Foundation, LDF will also expand its public 

information and public education program for this purpose. 

 



Court and several lower courts. 

Defendants’ argument finds support in neither Shaw nor its progeny. The Supreme Court has 

not absolved states from their responsibilities to comply with Section 2 of the Voting Rights Act, 

neither overruling Gingles nor declaring the application of Gingles' Section 2 analysis 

unconstitutional. Indeed, plaintiffs’ implication that the intentional creation of majority-minority 

districts is inherently unconstitutional conflicts with Shaw v. Hunt, 517 U.S. | 116 S.Ct. 1894, 135 

L.Ed.2d 207 (1996); Miller v. Johnson, supra, Bush v. Vera, 517 U.S. |, 116 S.Ct. 1941, 135 

L.Ed.2d 248 (1996), Abrams v. Johnson, 521 U.S. , 117 S.Ct. 1925, 138 L.Ed.2d 285 (1997) and 

Lawyer v. United States, 521 U.S. , 117 S.Ct. ___, 138 L.Ed.2d 669 (1997). Shaw "expressed 

no view as to whether the intentional creation of majority-minority districts, without more, always 

gives rise to an equal protection claim." Shaw, 113 S. Ct. at 2828. In Miller, the Supreme Court 

ruled that race-consciousness in drawing district lines would not alone render a districting plan 

presumptively unconstitutional. Miller, 115 S. Ct. at 2488. As the Supreme Court stated in Vera, 

"Strict scrutiny does not apply merely because redistricting is performed with consciousness of 

race....Nor does it apply to all cases of intentional creation of majority-minority districts." Vera, 135 

L.Ed.2d at 257 (citations omitted). This point is further emphasized by Justice O'Connor in her 

concurrence in Vera in which she made it clear that nothing in Shaw and its progeny should be 

interpreted as calling into question the continued importance of complying with Section 2 of the 

Voting Rights Act. As Justice O'Connor stated: 

The results test of §2 is an important part of the apparatus chosen by 

Congress to effectuate this Nation's commitment ‘to confront its 

conscience and fulfill the guarantee of the Constitution' with respect 

to equality in voting. S. Rep. No. 97-417, p. 4 (1982).  



abridged on account of Race or Color, or that the "badges and 
incidents" of the historic system of racial caste had been wiped 
away. It was attributable, rather, to "extraordinary defects in 
the national political process," South Carolina v. Baker, 485 U.S. 
505, 512 (1988), including, but not limited to the wholesale 
disenfranchisement of those whose rights were being most 
egregiously denied. This Court’s response was boldly to move 
against racial injustice, in the name of constitutional principle, 
see, e.g., Shelley v. Kraemer, 334 U.S. 1 (1948); Bolling v. Sharpe, 
347 U.S. 497 (1954); Cooper v. Aaron, at considerable risk to 
the Court’s power and prestige, see also Jack Bass, UNLIKELY 
HEROES. 
The decision in Morgan arose at a very different time, when the 
defects that had long plagued the national political process 
were beginning to be overcome, see THE WALLS OF JERICHO 
(1996) (discussing passage of Civil Rights Act of 1964), and 
when Congress had taken up in earnest its responsibilities of 
Enforcing the Constitutions civil rights protections. See 
generally United States v. Price, 383 U.S. at 806 (noting that, 
even 15 years earlier, "the federal role in the establishment and 
vindication of fundamental rights -- such as the freedom to 

travel, nondiscriminatory access to public areas and 
non-discriminatory educational facilities -- was neither as 
pervasive nor as intense as it is today"). 

Morgan and other decisions, see, e.g., South Carolina v. 

Katzenbach, upholding civil rights laws recognized this to be a 
wholly salutary development: that Congress, as a politically 
accountable branch (and one not bound by stare decisis 
policies), as the one best suited for dealing with complex, 
interdependent claims, and most capable of framing broad 
remedial and prophylactic rules, was by far the better 
institution to consider assertions of new "rights" and to devise 
new and better modes for enforcing existing ones. This 
cooperative arrangement, explicit in certain decisions of the 
Court and implicit in others, is entirely "in accordance with 
[the] historical design," Price, 383 U.S. at 806 of the 
Reconstruction Amendments and has proved highly beneficial: 
the Court has been allowed to adhere to principles of judicial 
restraint, while Congress has developed substantial expertise in 
the problems of discrimination and civil rights remedies. This 

34  



  

135 L.Ed.2d at 297. Justice O'Connor therefore concluded that states have a compelling interest in 

complying with Section 2 of the Voting Rights Act and, more specifically, complying with "the results 

test as this Court has interpreted it." Id. Justice O'Connor went on to find that Texas had a strong 

basis to believe that a majority-minority district should be drawn in Dallas, because voting was racially 

polarized and it was possible to draw a reasonably compact district with substantial African American 

populations. Id. at 281. Justice O'Connor's opinion on this issue is particularly significant because 

four other members of the Court, who dissented from the rulings striking down the North Carolina 

and Texas plans, clearly agree that states have a compelling interest in avoiding minority vote dilution 

and complying with Section 2 of the Voting Rights Act. Bush v. Vera, 135 L.Ed.2d at 307 (Stevens, 

J., joined by Ginsburg and Breyer, JJ., dissenting); id. at 328 (Souter, J., joined by Ginsburg and 

Breyer, JJ., dissenting). Thus, Justice O'Connor's opinion confirms that reasonably compact majority- 

black districts are permissible even under the Court's new Fourteenth Amendment doctrine, and that 

states continue to have a compelling interest in complying with Section 2 of the Voting Rights Act. 

Far from calling into question Section 2's constitutionality, the Supreme Court summarily 

affirmed the decision of a three-judge district court in California which upheld the deliberate creation 

Wil 
of majority-minority districts which were designed to comply with the Voting Rights Act. DeWitt, 

PY 2 'al) SE WS. — (1195) . 

856 F. Supp.1409, 1415 (E.D.Cal. 1994). The DeWitt decision holds that the intentional creation of 
A 

majority-minority districts does not violate the Constitution when the redistricting plan "evidences 

a judicious and proper balancing of the many factors appropriate to redistricting, one of which was 

the consideration of the application of the Voting Rights Act's objective of assuring that minority 

voters are not denied the chance to effectively influence the political process." DeWitt, 856 F. Supp. 

12 

 



  

understanding, that Congress may "lead" the Court, that it is 
authorized to make judgments that, while consistent with 

constitutional guarantees are not strictly required by them, has 
been relied upon by both branches, see Pennsylvania v. Union 
Gas, 491 U.S. 1, 35 (Scalia, J, concurring in part and dissenting 

in part) (noting judicial and congressional reliance on 11th 
Amendment case law), and especially so, with regard to 

legislation securing basic rights for individuals whose exclusion 
from full and equal participation in the mainstream has been 
most long and unjust. See Americans with Disabilities Act, 42 
U.S.C. § 12101; Age Discrimination in Employment Act, 29 

U.S.C. 621; Voting Rights Act, 42 U.S.C. § 1973(b); Civil 
Rights Act of 1991, Pub. L. 102-166; cf. Indian Civil Rights Act, 
25 US.C. § 1301. Neither text, precedent, or principle 
supports disturbing this settled understanding or casting doubt 
on the validity of such laws. Cf. Bush v. Vera, 116 S. Ct. at 
CITE (1996) (O'Connor, J., concurring). 

II. RFRA Does Not Violate Any Other Constitutional 

Provision and is Consistent with the Letter and Spirit of the 

Constitution 

A. No Separation of Powers Principle Precludes Congress from 

Enacting RFRA 

Brushing aside any description of RFRA as a "mere statute," 
Petitioner instead portrays it as a frontal assault on the 
"province and duty" of the Judicial Department to "say what the 
law is." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). 
Close inspection, however, acquits RFRA of any "Separation of 
Powers" violation. 

1. RFRA Has Not Made the Judiciary "Irrelevant" 

Petitioners try first to locate a "Separation of Powers" defect in 
the fact that Congress, by enacting RFRA, "imposed a standard 
of review" to be applied in "free exercise cases" -- thereby 
impairing the judiciary’s ability to decide cases according to 
Smith. But there can be no more merit to that claim than 
there would be to an assertion that the Speedy Trial Act, 18 
U.S.C. § 3161, offends the Separation of Powers by depriving 

35 

 



at 1413-14." This is further corroborated by the Supreme Court’s most recent decision upholding 

the constitutionality of a Florida majority-minority district drawn with race as a factor, even though 

it was somé what irregularly shaped and split county and city boundaries. Lawyer v. United States, 

521 U.S.  ,117S8.Ct. __ , 138 L.Ed.2d 669 (1997). The creation of remedies to comply with 

Section 2 of the Voting Rights Act aie not per se unconstitutional. See Bush v. Vera, 135 L.Ed.2d 

at 279; Clark v. Calhoun County, 88 F.3d 1393, 1407 (5th Cir. 1996) (the Supreme Court in its 

recent decisions did not alter the Gingles proof, nor did the "Court suggest that a district drawn for 

predominantly racial reasons would necessarily fail the Gingles test."); Cane v. Worcester County, 

35 F.3d 921, 926-27 n.6 (4th Cir. 1994), cert. denied, 115 S. Ct. 3616 (1995)(holding that Shaw is 

not implicated in Section 2 challenge to at-large election scheme where proposed majority-black 

remedial district was comparable to other election districts drawn by the county). 

In view of the affirmances in Lawyer and DeWitt, as well as the Supreme Court's repeated 

assurances that the use of race in drawing district§/line/does not automatically render those districts 

unconstitutional, and Justice O'Connor's important concurring opinion in Vera, it appears evident that 

states have a compelling justification in complying with Section 2 of the Voting Rights Act. 

Moreover, Shaw and its progeny, support the continued creation of these remedial districts in order 

to comply with the strictures of the Act when redistricting. 

In fact, Lawyer provides an important laboratory for how these considerations should be 

balanced in the context of the creation of remedial plans. It remains the only case considered by the 

  

! A further understanding of the DeWitt decision can be gleaned by reviewing the decision 

of the California Supreme Court which created the redistricting plans challenged in DeWitt. See 

Wilson v. Eu, 823 P.2d 545, 563-564, 582, 583-584, 594 (Cal. 1992) (describing the various 
special efforts taken to create districts which would comply with the Voting Rights Act). 

13  



this Court of the power to elaborate on its decision in Barker 
v. Wingo, 407 U.S. 514 (1972), in "speedy trial cases." 

In fact, this argument, that laws enabling federal courts 

to dispose of cases on nonconstitutional grounds are suspect 
for denying the Court opportunities to pronounce 
constitutional judgments betrays a basic misapprehension of the 
role assigned the judiciary in the constitutional scheme. Far 

from recognizing a distinct category of "constitutional cases," to 
be supplied to the judiciary in numbers sufficient to enable 
performance of its "function" of "announcing constitutional 
principles,” CITE Br. Marbury stands instead for a quite 
different rule: that the authority to determine constitutional 
questions, no less (or more) than others, is an incident of the 
power to decide "cases . . . or... controversies." U.S. CONST., 
art. III, § 2, cl. 1, See Valley Forge Christian Schools v. 

Americans United for Separation, 454 U.S. 464, 489 (1982) 

("[T]he philosophy that the business of the federal courts is 
correcting constitutional errors, and that ‘cases and 
controversies’ are at best merely convenient vehicles for doing 
so and at worst nuisances that may be dispensed with when 
they become obstacles to that transcendent endeavor. . . . has 

no place in our constitutional scheme").”” Thus, the assertion 

  

22 Indeed, the fact that the power to announce 
constitutional principles is so limited has long stood at the core 

of the defense of judicial review, see Plaut (noting that, 
according to Federalist No. 78, "The Judiciary would be . . 
‘the [department] least dangerous to the political rights of the 
constitution’. . . because the binding effect of its acts was limited 

to particular cases and controversies") (emphasis supplied). This 
case could not be more different, thus, from Plaut -- the lone 

Separation of Powers decision cited in Petitioner’s Brief: there 
the Court found a violation because the legislation at issue 
directly impaired the acknowledged judicial power to render 
judgments in particular cases. Cf. Cooper v. Aaron, 358 U.S. at 
18 (if legislatures could "annul the judgments of the courts of 
the United States and destroy the rights acquired under those 
judgments, the Constitution itself becomes a solemn mockery") 
(citation omitted). 

36  



Supreme Court in the post-Shaw era involving a legislatively-drawn plan created to remedy alleged 

constitutional violations. In Lawyer, the district court approved a settlement plan which reduced the 

total minority voting age population from the original 55.3 % to 51.2% and is still a bit odd in shape, 

albeit “less strained and irregular.” Scott v. United States, 920 F. Supp. 1248, 1255 (M.D. Fla. 1996). 

However, the most important consideration for the district court in determining whether it would 

approve the new boundaries was that the new plan “offers to any candidate, without regard to race, 

the opportunity to seek elective office and both a fair chance to win and the ususal risk of defeat....” 

Id. at 1256. As discussed above, the Supreme Court upheld this settlement, finding that, while race 

was a factor, the district did not subordinate Florida’s traditional redistricting criteria. 

As this Court should in this case, the district court and Supreme Court in Scott and Lawyer 

reached these conclusions irrespective of how the original District 21 was created or its alleged 

constitutional infirmities. The courts also reached their conclusions despite the fact that the remedial 

plan used the original 1992 redistricting plan as a starting point. In these cases, the courts attached 

no taint to the Florida’s remedial plan, simply because the challenged plan was used as a base. After 

the passage of the three years between the creation of the original plan in 1992 creation of the remedy 

in 1995, the courts refused to ignore Florida’s legitimate interest in preserving electoral stability by 

avoiding needless disruption of the political relationships that had developed over the years where it 

could do so consistent with sound redistricting principles. 

The plaintiffs’ poisonous tree theory finds no support in cases decided since Shaw v. Reno, 

509 U.S. 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993), nor in cases that discuss how remedies must 

be fashioned in other voting rights contexts. The general principle in remedying voting rights 

violations is that so long as the state enacts a new plan that remedies the violation and complies with 

14  



that the Court is made "irrelevant," CITE Br., when it decides 

cases on nonconstitutional, rather than constitutional, grounds, 

is untrue to Marbury -- which in no way indicates that statutory 
construction is less an exercise of the power to "say what the 
law is," 5 U.S. at 177, than is constitutional interpretation -- 
and to the axioms of restraint that have guided the federal 
judiciary since, see Ashwander v. TVA, 297 U.S. 288, 346-347 

(1936) (Brandeis, J., concurring); * 

2. Congress May Seek to Counteract the Results of Supreme 

Court Decisions 

No more tenable is a suggested "Separation of Powers" 
principles that would disable Congress from enacting a law 
aimed at producing the very result (e.g., invalidation of laws 
unnecessarily burdening free exercise) that would have 
obtained had the Court reached the opposite conclusion in a 
particular decision (here, Smith). Statutes aimed at reversing 
the consequences of judicial decisions in statutory 
interpretation cases, see generally Landgraf, have become almost 
commonplace, and the intuition that a different rule governs 
cases decided on constitutional grounds runs into obvious 
difficulty. A holding that the Constitution "does not confer a 
right to peremptory challenges," Batson v. Kentucky, 476 U.S. 
79, 91 (1986) (internal quotation omitted), for example, would 
not be taken to mean that Congress is forbidden from enacting 
a law providing for them, nor could the announcement that the 
Constitution "does not require compact congressional districts," 
see Shaw v. Reno, 509 U.S. 630, 647 (1993), be read fairly as 

  

B0f Course, the Court retains the power to decide this case 
on constitutional Free Exercise grounds, see 
Sup. Ct. Rule ; ¢f n._ infra. There is a sense in which 
Petitioners offer Congress a "heads I win, tails you lose" 
proposition. Congress is faulted both for departing from the 
constitutional standard in drafting RFRA, see Brief __ -- and 
for adhering to it, see Brief __ (criticizing Congress for allowing 
for judicial definition of "free exercise of religion."). 

37  



the applicable federal and state constitutional and statutory provisions, it will become the governing 

law. Wise v. Lipscomb, 437 U.S. 535, 540 (1978). “A State’s freedom of choice to devise 

substitutes for an apportionment plan found unconstitutional, either as a whole or in part, should not 

be restricted beyond the clear commands of the Equal Protection Clause.” Burns v. Richardson, 384 

U.S. 73, 85 (1966). Indeed, in Shaw v. Hunt, 517 U.S. ___, 116 S.Ct. 1894, 135 L.Ed.2d 207 

(1996), the Supreme Court reminded us that “states retain broad discretion in drawing districts to 

comply with the mandate of § 2.” Id., 135 L.Ed.2d at 226, n. 9 (citing Voinovich v. Quilter, 507 U.S. 

146 (1993) and Growe v. Emison, 507 U.S. 25 (1993). Where a legislative body does devise a 

remedial plan, the court must “acord great deference to legislative judgments about the exact nature 

and scope of the proposed remedy.” McGhee v. Granville County, 860 F.2d 110, 115 (4" Cir. Ll 

see also Tallahassee Branch of NAACP v. Leon County, 827 F.2d 1436, 1440 (11" Cir. 1987). 

An example of the deference federal courts must give to legislative choices in the 

reapportionment arena is found in White v. Weiser, 412 U.S. 783 (1973). There, the Texas 

legislature’s congressional redistricting plan was found to be constitutional invalid because it did not 

satisfy the one-person, one-vote criterion. The court below, in imposing a remedy, had two choices: 

Plan B, which generally followed the redistricting pattern of the original plan but made small 

adjustments in order to lower the variances between district populations; and Plan C, which 

substantially disregarded the configurations of the districts in the original plan. Plan C was regarded 

by the lower court as being more compact and congo than the other plans. In addition, 

however, Plan C also had a very different partisan political impact. The court below ordered Plan 

C as aremedy. The Supreme Court reversed, holding that the court below should not have imposed 

Plan C, with its very different political impact. The Court explained that: 

15  



  

constitution’. . . because the binding effect of its acts was limited to 

particular cases and controversies") (emphasis supplied). 
. In short, the suggestion that the Court is made "irrelevant" when it 

decides cases on nonconstitutional, rather than constitutional, 

grounds, 1s untrue to Marbury -- which in no way suggests that 

statutory construction is less an exercise of the power to "say what 

the law 1s," 5 U.S. at 177, than is constitutional interpretation -- and 

entirely unsupportable in light of the axioms of judicial restraint that 

have been elaborated since, see Ashwander v. TVA, 297 U.S. 288, 

346-347 (1936) (Brandeis, J., concurring); cf, e.g., Escambia 

County v. Mcmillan, 466 U.S. 48, 51 (1984) (per curiam) (vacating 
on prudential grounds judgment finding intentional discrimination in 

voting rights case and remanding for consideration of statutory 

claim).? This, case could not be more different, thus, from Plaut v. 

Spendthrift Farm, the one Separation of Powers decision even cited 

in Petitioner’s Brief: there the Court found a violation not because 

Congress had "imposed" a statute of limitations for "security cases" 

that denied the judiciary an opportunity to explicate its decision in 

  

"Thus, the Federalist continued, "though individual oppression may 

now and then proceed from the courts of justice, the general liberty of the 

people can never be endangered from that quarter." 

*Of Course, the Court retains the power to decide this case on 
constitutional Free Exercise grounds, see Rule ; ¢f n._ infra. There is a sense 

in which Petitioners offer Congress a "heads I win, tails you lose" proposition. 

Congress is faulted both for departing from the constitutional standard in 

drafting RFRA, see Brief __ -- and for adhering to it, see Brief __ (criticizing 

Congress for allowing for judicial definition of "free exercise of religion."). As 
for suggestions that RFRA is unconstitutional because it is not "restorative" in 
the way the Act's title indicates (i.e., that its standard is different from that 

which governed prior to Smith), such arguments, in conjunction with the 

teaching of recent cases, see, e.g., Rivers, would result in a rule of per se 

unconstitutionality for statutes with the words "restoration" in their titles. But 

see Pennhurst State School v. Halderman, 451 U.S. 1, 19 (1981) (rejecting 
claim that statute entitled "The Establishment and Protection of the Rights of 
Persons with Developmental Disabilities" established rights for persons with 

deviopmental disabilities). If the Court is inclined to embark on a general 
Truth-in-labeling campaign, amici respectfully suggest that there are numerous 
statutes more deserving of the Court's review than RFRA. See, e.g., 

4 

 



  

Just as a federal district court, in the context of legislative reapportionment, should 

follow the policies and preferences of the State, as expressed in statutory and 

constitutional provisions or in the reapportionment plans proposed by the state 

legislature, whenever adherence to state policy does not detract from the requirements 

of the Federal Constitution, we hold that a district court should similarly honor state 

policies in the context of congressional reapportionment. ... The remedial powers of 

an equity court must be adequate to the task, but they are not unlimited. Here the 

District Court erred in so broadly brushing aside state apportionment policy without 

solid constitutional or equitable grounds for doing so. 

White v. Weiser, 412 U.S. at 795-96. The court in Shaw v. Hunt was bound to approve the 

legislature’s remedial congressional redistricting plan, to the extent that it did not violate any federal 

constitutional or statutory requirements. This court must do the same. 

The reasons for deference to state legislative choices are well-grounded in constitutional law. 

“Principles of federalism and separation of powers impose stringent limitations on the equitable power 

of federal courts.” Lewis v. Casey, 518 U.S. , 116 S.Ct. __, 135 L.Ed.2d 606,639-40 (1996) 

(Thomas, J., concurring). “The power of the federal courts to restructure the operation of local and 

state governmental entities is not plenary. It may be exercised only on the basis of a constitutional 

violation.” Dayton Bd. Of Educ. v. Brinkman, 433 U.S. 406, 419-20 (1977); see Brocdram v. Pitts, 

503 U.S. 467, 489 (1992); Rizzo v. Goode, 423 U.S. 362, 377 (1976); Milliken v. Bradley, 418 U.S. 

717, 738 (1974). Once a discrete constitutional violation is found, a federal court is required to tailor 

Jv the nature and scope of the remedy to fit the nature and extent of the violatio. 
A 

Virginia, 518 U.S. , 116 S.Ct. , 135 L.Ed.2d 735 (1996); Lewis, 135 L.Ed.2d at 621 (majority 

See United States v. 

opinion); Missouri v. Jenkins, 515 U.S. , 115 S.Ct. 2038, 2049, 132 L.Ed.2d 63 (1995). The 

remedial decree therefore must directly address and relate to “the condition alleged to offend the 

constitution.” Shaw, 135 L.Ed.2d at 225 (quoting Missouri v. Jenkins, 115 S.Ct. At 2049). The 

Supreme Court has steadfastly refused to give the lower “federal courts a blank check to impose 

16 

 



  

indispensible to assuring equal treatment and fostering 
government respect for diverse religious practices, represents 
a surprisingly modest enlargement of the Smith rule. And it is 
similarly not difficult to read the Smith as permitting legislation 
of the sort enacted in RFRA, The Court’s opinion is hardly 
agnostic as to the legislature’s power to modify general laws, so 
as to lift obstacles to religious practice: 

Values that are protected against government 
interference through enshrinement in the Bill of Rights 
are not thereby banished from the political process. 
Just as a society that believes in the negative protection 
accorded to the press by the First Amendment is likely 
to enact laws that affirmatively foster the dissemination 
of the printed word, so also a society that believes in 
the negative protection accorded to religious belief can 

be expected to be solicitous of that value in its 
legislation as well. 

491 U.S. at 890; accord Board of Educ. of Kiryas Joel v. 

Grumet, 114 S. Ct. CITE (1994) (Scalia, J., dissenting) ("When 
a legislature acts to accommodate religion, particularly a 
minority sect, ‘it follows the best of our traditions™) (quoting 
Zorach v. Clausen, at 314)” And Smith opinion states no 

  

from general laws and that the approach taken reflects a 
"permissible reading of the text") -- and that, under such 
circumstances, the judiciary should opt for the minimal rule, 
leaving it for the political branches to decide the outer limits 
of protection. 

This Brief takes no position as to whether Smith was 
correct as a matter of constitutional interpretation, just as it 
expresses no view whether RFRA represents the wisest possible 
exercise of congressional power under the circumstances -- only 
that it was a permissible one. 

’In fact, Smith may be read as identifying its standard as 
only one among several permissible readings of the Free 
Exercise Clause, see It is not uncommon to recognize a 

40 

 



  

unlimited remedies upon a constitutional violator.” Jenkins, 115 S.Ct. at 2058 (O’Connor, J. 

concurring). 

Furthermore, “the federal courts in revising a remedy must take into account the interests of 

state and local authorities in managing their own affairs, consistent with the Constitution.” Milliken 

v. Bradley, 433 U.S. 267, 280-81 (1977); accord Jenkins, 115 S.Ct. at 2049; Freeman, 503 U.S. at 

489. The general principles of judicial restraint, equity, and federalism apply with particular force 

when federal courts invalidate state redistricting plans. The Constitution allocates to the State the 

primary responsibility for reapportionment. U.S. Const., art. I, § 2, cl. 1; id. § 4, cl. 1; see Growe v. 

Emison, 507 U.S. 25, 34 (1993); Reynolds v. Sims, 377 U.S. 533, 586 (1964). A plan enacted by 

the state legislature is “likely to reflect a State’s political policy and the will of its people more 

accurately than a decision by unelected federal judges.” Connor v. Finch, 431 U.S. 407, 431 (1977) 

(dissenting opinion) (citing Chapman v. Meier, 420 U.S. 1 (1975)). “The federal courts are bound 

to respect the State’s apportionment choices unless those choices contravene federal requirements.” 

Voinovich, 507 U.S. at 156. 

Given the complexity of drawing redistricting plans and the deference properly accorded state 

officials in that process, states should be given some latitude to balance the necessary redistricting 

factors — political, Constitutional and compliance with the Voting Rights Act — in attempting to 

arrive at a compromise, remedial plan. States should be given this flexibility, as it represents the 
™ 

Ve exercise of the states'responsibility and role in redistricting and the operation of the states’ 

democratic process. Federal courts have been and should be loath to usurp the state’s role in the 

redistricting process. 

The plaintiffs’ poisonous tree theory would require a state remedying a Shaw violation to do 

17 

 



  

express preference for a political approach that proceeds case- 
by-case, rather than comprehensively; on the contrary, Smith 
explicitly acknowledges the danger of parcelling out religious 
exemptions on an ad hoc basis. Instead, Smith might be said 
to be truly emphatic on only two points: that the Court’s prior 
Free Exercise decisions, while professing allegiance to the 
"compelling interest" test, had not, in fact, applied it, see id. at 
885 (asserting that an approach exempting neutral laws of 
general applicability is "in accord with the vast majority of our 
precedents"), and that the costs of a full-out application of the 
"compelling interest" standard would outweigh its benefits (e.g., 
protection for unpopular religious practices) that such a regime 
would provide, see id. at 890. It is only with respect to the 

  

measure of indeterminacy in the constitutional text and, on 

such occasions, to favor a reading that leaves the broadest 
leeway for the political branch. see 44 Liquormart, Inc. v. 
Rhode Island (Scalia, J., concurring) (noting "indeterminajcy"] 
of the Free Speech Clause where the "core offense of 
suppressing particular political ideas is not at issue"). 

BSmith made two other assertions, neither of which would 
seem to bear on Congress's power: (1) that a bright-line 
exemption for neutral laws of general application would be far 
more judicially administrable than would the balancing test 
announced in Sherbert; and (2) that exempting religious 
exercise was a "constitutional anomaly," 491 U.S. As for the 
former, however awkward the test may have been to apply, see 
id. (O’Connor, J., concurring), the is no support for the 
suggestion that the Court is entirely incapable of doing so, cf. 
Food & Commercial Workers v. Brown Group, US. 
(1996) (Congress may freely abrogate "judicially fashioned and 
prudentially imposed" limits on federal courts jurisdiction). 
Nor is it clear that the Court was weighing in its analysis the 
comparative difficulty of administering a system of religion- 
based equal protection claims, see infra. 

As for (2) it is surely less a complete anomaly, see, e.g. 
Cohen v. Cowles Media (applying heightened scrutiny to general 
law’s incidental effect on constitutional right). 

41 

 



substantially more than correct the unconstitutional district. Plaintiffs seek to impose a requirement 

that the legislature substantially change all of the state’s congressional districts and completely redraw 

the entire plan. A court does not have this remedial power, and the plaintiffs in this case do not have 

a constitutional right to dictate the state’s redistricting priorities beyond what is required to eliminate 

the equal protection violation they have demonstrated. 

I THE CONSTITUTIONALITY OF THE FIRST CONGRESSIONAL 

DISTRICT IN THE 1992 PLAN IS A MOOT ISSUE 

Plaintiffs contend that this court must issue a declaratory judgment that the First 

Congressional District in the 1992 plan is unconstitutional because it bears a relationship to the new 

First District in the 1997 remedy plan. The question of whether race predominated in the drawing 

of District 1 in the 1992 redistricting plan remains a moot issue. It became moot when the district 

was redrawn, and since the state is not intending to elect a congressional representative from that 

district, there is no case or controversy requiring a decision on that issue. See Shaw v. Hunt, No. 92- 

202-CIV-5, Memorandum Opinion filed September 12, 1997 at 6. 

There is nothing different in plaintiffs’ claim about the 1992 First Congressional District in 

this case from what was true when the three-judge panel in Shaw determined that the enactment of 

the 1997 remedy plan made this claim moot. There is no reason for this court to review and issue a 

declaratory judgment one way or the other about a congressional district that is no longer in use. 

III RACE DID NOT PREDOMINATE IN THE 1997 REMEDIAL PLAN 

The plaintiffs are not entitled to summary judgment in their favor because the facts of the 

1997 redistricting process that produced the remedial plan at issue here show that race did not 

predominate in the drawing of any of the congressional districts in the plan. In 1977, the General  



  

latter assertion -- that one state of affairs is "to be preferred,” 
491 U.S. at 890 to another -- that Congress could fairly be 
described as having taken issue with the Supreme Court. 
2. Disagreement With the Court’s Decisions is not In itself 

Unconstitutional 

Even if Congress’s disapproval of Smith itself (and not 
just the consequences of the decision) were unarguable -- 
indeed, even if RFRA were intended to express disapproval by 
targeting the likely effects of the Smith rule -- the nature of the 
affront to Separation of Powers would hardly be clear. 
Congressional disagreement with a Supreme Court decision has 
never been treated as an independent bar to validity, see, e.g., 

Newport News Shipbuilding & Dry Dock v. EEOC, 462 U.S. 669, 
670 (1983) ("In 1978 Congress decided to overrule our decision 
in General Electric Co. v. Gilbert, 429 U.S. 125 (1976) by 
amending Title VII of the Civil Rights Act of 1964 . . . "). 
Indeed, the freedom of coordinate branches to disagree openly 
with the Court -- including on matters of constitutional 
principle -- has been celebrated as a strength of our 
constitutional system see Plaut (quoting Abraham Lincoln’s first 
inaugural address, expressing disapproval of the Dred Scott 
decision). 

And even if such discord were more frowned upon, "bad 
motive" alone is rarely enough to invalidate a statute: a 
patently valid regulation of commerce presumably could not be 
undone if shown somehow to have been motivated by a desire 
to "overrule" Smith, see Church of Lukumi Babalu Aye v. City of 

Hialeah, 508 U.S. 520, 558 (1993) (Scalia, J., concurring) ("Had 
the Hialeah City Council set out resolutely to suppress the 
practices of Santeria, but ineptly adopted ordinances that failed 
to do so, I do not see how those laws could be said to 

"prohibi[t] the free exercise" of religion"). No different fate 
seems appropriate for a law (duly supported, by hypothesis, by 
a grant of power) enacted with the purpose and effect of 
limiting the consequences of a Supreme Court decision: if 
Congress had been troubled by the harsh results of the policy 
upheld in Lyng v. United Auto Workers, 485 U.S. 360 (1988), for 
example, no "separation of powers" principle presumably 
would stand in the way of a restoration of food stamp benefits 
to the families of striking workers -- and it is not easy to see 

42 

 



  

Assembly had two goals, first, to remedy the constitutional violation found with regard to District 

12, and second, the preserve the partisan balance in the state’s congressional delegation. The plan 

that was passed does not split precincts, does not rely on point contiguity, and contains districts that 

are substantially more geographically compact. Traditional redistricting principles were followed, and 

not subordinated to racial concerns. 

Decisions of the Supreme Court since Shaw v. Reno, 509 U.S. 630 (1993), have clarified the 

prerequisites for the “analytically distinct” cause of action, 509 U.S. at 652, recognized in that case. 

A Shaw plaintiffs burden is to show that “race for its own sake, and not other districting principles, 

was the legislature’s dominant and controlling rationale in drawing its district lines,” Bush v. Vera, 

517 U.S. 116 S.Ct. 1941, 135 L.Ed.2d 248, 256 (1996), quoting Miller v. Johnson, 515 U.S. 

115 S.Ct. 2475, 132 L.Ed.2d 762, 777 (1995), and “that other, legitimate districting principles 

were ‘subordinated’ to race.” Bush, 135 L.Ed.2d at 259-68. 

It is not enough for plaintiffs to show merely that the decision-maker intended to create a 

majority-minority district, or even that the districting was performed “with consciousness of race.” 

Bush, 135 L.Ed.2d at 257. 

States may intentionally create majority-minority districts, and may otherwise take 

race into consideration, without coming under strict scrutiny ... [O]nly if traditional 

districting criteria are neglected, and that neglect is predominantly due to the misuse 

of race, does strict scrutiny apply. 

Bush, 135 L.Ed.2d at 280 (O’Connor, J., concurring) (emphasis in original).? If race was only one 

  

As Judge Higginbotham of the Fifth Circuit has pointed out, seven members of the 

Supreme Court have rejected the contrary view advocated by Justices Thomas and Scalia and 

have held “that strict scrutiny does not [automatically] apply to all cases involving the intentional 

creation of majority-minority districts.” Clark v. Calhoun County, 88 F.3d 1393, 1404 & n.2 

(1996), citing Bush, 135 L.Ed.2d at 257 (majority opinion), 290 n.7 (Stevens, J. dissenting); 328 

(Souter, J., dissenting). 

19 

 



  

what difference it would make on "Marbury" grounds if it could 
be proved conclusively that the legislative majority had, in fact, 

been moved to action by the constitutional arguments advanced 
in Justice Marshall’s dissent in that case, see id. at 374; see also 

Westside Community Bd. of Educ. v. Mergens, 496 U.S. 226, 233 
(1990), (noting that Equal Access Act had been "enacted in 
part in response to two federal appellate court decisions 
holding that student religious groups could not . . . meet on 
school premises during noninstructional time"); Thornburg v. 
Gingles, 478 U.S. 30, 43 (1986) (noting, in the course of 
construing the Voting Rights Act, that Congress had 

"dispositively reject[ed] the position of the plurality in Mobile 
v. Bolden, 446 U.S. 55 (1980)"); id. (O’Connor, J, concurring) 
(observing that "Amended § 2 is intended to . . . reject the 
"intent" test propounded in the plurality opinion in Mobile v. 
Bolden"); Heart of Atlanta Motel v. United States, 379 U.S. 241 

(holding that decision in Civil Right Cases, (1883) finding 
similar public accommodations law beyond the enforcement 
power has "no relevance" to whether Title II of the 1964 Civil 

Rights Act is "a valid exercise of the Commerce Power").” 

B. RFRA Does is not Inconsistent With the Tenth Amendment 

or the "Spirit of the Constitution" 

Finally, Petitioners and their amici seek to have RFRA 
held invalid, based not on any lack of power of Congress to 
reach the conduct at issue in this case (or any abuse of power 
properly conferred), but rather based on the facts of cases not 
presented here and on speculation about the federalism 

  

¥see also Adarand Constructors, Inc. v. Pena, U.S. 

(1995) n.* (noting that "Congress has recently agreed with the 
. . . position [of the dissenters in Korematsu v. United States, 
323 U.S. 214 (1944)] and has attempted to make amends [for 
wartime internment of Japanese-American |. See Pub. L. 
100-383, § 2(a), 102 Stat. 903 (“The Congress recognizes 
that . . . a grave injustice was done to both citizens and 
permanent resident aliens of Japanese ancestry by the 
evacuation, relocation, and internment of civilians during 

World War II')"). 

43 

 



factor, not displacing all others, that accounted for the configuration of a districting plan, there is no 

constitutional violation. See DeWitt v. Wilson, 856 F. Supp. 1409, 1413 (E.D. Cal. 1994). 

Plaintiffs cannot prove their Shaw claim because there is overwhelming, uncontradicted and 

competent evidence that the 1997 remedy plan was cried to meet significant non-racial objectives 

and comports with traditional districting criteria. District 12 in the 1997 remedy plan is not a 

majority black district. Partisan concerns rather than race predominated in the drawing of the district. 

White plaintiffs in this district are not stigmatized or otherwise harmed by being in the district. 

The First District is the only majority-black district in the plan. It is not constitutionally 

suspect merely because it contains a bare majority of black citizens. The district is geographically 

compact, unites voters who have a community of interest, and is truly an opportunity district for a 

candidate of any race. In these circumstances, the district is constitutional. 

Iv THE FIRST CONGRESSIONAL DISTRICT IS NARROWLY TAILORED TO 

ACHIEVE A COMPELLING STATE INTEREST 

Even if plaintiffs are right that race predominated in the drawing of the First District, which 

Applicants dispute, the state had a compelling interest in drawing this district to avoid liability for 

vote dilution in violation of Section 2 of the Voting Rights Act of 1064 and to remedy years of 

discrimination in matters affecting voting in the northeast region of the state. District 1 is narrowly 

tailored to meet this compelling state interest. 

The threshold elements of a Section 2 violation are: “first, ‘that [the minority group] is 

sufficiently large and geographically compact to constitute a majority in a single-member district; 

second, ‘that it is politically cohesive;’ and third, ‘that the white majority votes sufficiently as a bloc 

to enable it ... usually to defeat the minority’s preferred candidate.’”” Growe v. Emison, 507 U.S. 25,  



implications of a decision unfavorable to them here. 

This method of attack is wholly inappropriate to this 
case, which arises from a facial challenge to the Act, and 

whatever uncertainty might surround the applicable standard 
for resolving facial challenges, compare Janklow v. Plaaned 
Parenthood, 116 S. Ct. (1996) (Stevens, J., respecting denial of 
certiorari) with id. (Scalia, J, dissenting), this case is controlled 
by the noncontroversial principle of United States v. Raines, 362 
U.S. 1 (1960), i.e., that "one to whom application of a statute 
is constitutional will not be heard to attack the statute on the 
ground that impliedly it might also be taken as applying to 
other persons or other situations in which its application might 
be unconstitutional," id. at 22. 

Because there is strong reason to believe that the 
heightened scrutiny standard would apply to this case as a 

matter of Free Exercise law, see supra n._; Keeler v. Mayor & 
Ciy Council of Cumberland, 940 F. Supp. 879, 886 (D. Md. 
1996) (holding that government’s denial of demolition permit 
to monastery in landmark district is subject to heightened 
scrutiny under Free Exercise Clause and granting summary 

judgment to claimant), RFRA’s operation in this case is no 

different in essence from a federal law granting a cause of 
action to enforce the First Amendment. And even were it not 
, Archbishop Flores’s case also falls within the large fraction of 
religion cases that Congress could regulate under the 
Commerce Clause see, e.g., Phillbrook (applying religious 
accommodation requirements of title VII to local government 
employer) see Lopez (citing Katzenbach v. McClung with 
approval); EEOC v. Wyoming, 460 U.S. at 243-44 n.18 ("[t]he 

. . constitutionality of action taken by Congress does not 
depend on recitals of the power which it undertakes to 
exercise"); but cf. supra (arguing that courts should encourage 
congressional candor). 

As for hypothetical cases involving State prerogatives 
"more intimately related to the process of democratic self- 

government," Gregory, 501 U.S. at 462, RFRA itself provides 

the most important answer: the Act’s balancing test assures 
that the weightier a government’s sovereign interest, the less it 

44  



29 (1993) quoting Thornburg v. Gingles, 478 U.S. 30, 50-51, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). 

Members of the North Carolina General Assembly had information before them during the 1997 

redistricting process that indicated that each of these elements was present with regard to the 

northeastern region of the state. Many of the plans considered by the legislature demonstrated that 

black voters in the northeast are sufficiently geographically compact to constitute a majority of the 

population in a congressional district. The fact that black voters in this region of the state are 

politically cohesive, and that white voters usually vote sufficiently as a bloc to defeat the choice of 

black voters was demonstrated by the racially polarized voting analysis conducted by Professor 

Richard L. Engstrom of the University of New Orleans. His analysis of the 1996 Gantt-Helms senate 

contest demonstrated further that polarized voting is more severe in the northeast than in the state 

generally. Several expert reports concerning the history of official discrimination affecting black 

voters’ ability to participate in the electoral process, the use of racial slurs in election campaigns, the 

lack of electoral success by black candidates were presented to the legislature, as well as sworn 

statements by witnesses concerning a number of factors relevant to the totality of circumstances in 

North Carolina. The legislature had before it ample evidence that the failure to draw a majority-black 

district in the northeast would constitute a violation of Section 2 of the Voting Rights Act. 

A state is required to create a majority-minority congressional district where the three Gingles 

factors are present. Bush v. Vera, 135 L.Ed.2d at 280-81. Thus, the General Assembly had a 

compelling state interest in drawing the First Congressional District. 

The plaintiffs argue that this district is not narrowly tailored because it has more black voters 

than are necessary to elect a black candidate. This argument is directly contrary to the Supreme 

Court’s holdings in Shaw v. Hunt and Bush v. Vera. In both cases, the court acknowledged that not 

21  



is expected to accommodate religious claims. To the extent 
that even that protection is insufficient for some future case, a 
ruling that RFRA does not trammel local prerogatives 
sufficiently to strike it down on its face by no means binds this 
Court to uphold every conceivable future application of RFRA, 
see, e.g., National Org. for Women, Inc. v. Scheidler, 510 U.S. 

249, 264 (1994) (Souter, J., concurring) (Court’s refusal to 
exempt noneconomic enterprises from RICO altogerther does 
not preclude a First Amendment defense in particular cases). 
See generally Oregon v. Mitchell, 400 U.S. at 130 (Black, J.) 
(Breadth of Section 5 power should depend on whether impact 
falls "in a domain not exclusively reserved by the Constitution 
to the States"). As for complaints about prisoner lawsuits and 
more elaborate hypoteticals, RFRA’s detractors would be hard- 
pressed to cite a reason -- as a matter of theory or practice -- 
why their interests in protection from prisoner litigation are 
likely to be given a less than full hearing in the political 
process, see South Carolina v. Baker.” 

  

30Recent history surely yields few examples of congressional 
insensivity to State interests in these areas. See, e.g., STOP law, 
Antiterrorism and Effective Death Penalty Act of 1996. 

45  



  

only does a legislature have a compelling interest in drawing a majority-black district where the 

Gingles factors are present, but that such a district is narrowly tailored when it is located in the region 

of the state where the geographically compact, politically cohesive minority population lives. Shaw, 

135 L.Ed.2d at 226; Bush, 135 L.Ed.2d at 280-81. Justice O’Connor points out that in avoiding 

liability under Section 2 of the Voting Rights Act, “if a State pursues that compelling interest by 

creating a district that ‘substantially addresses’ the potential liability and does not deviate substantially 

from a hypothetical court-drawn § 2 district for predominantly racial reasons, its districting plan will 

be narrowly tailored.” Bush, 135 L.Ed.2d at 280-81 (citations omitted). This is precisely what the 

General Assembly did in enacting District 1 in the 1997 remedy plan. The plaintiffs suggest that the 

legislature must engage in political speculation about how many minority voters are needed to elect 

minority candidate in the district. That is not what the law requires. A majority-minority district is 

narrowly tailored if it remedies the potential violation by giving black voters an equal opportunity to 

elect a candidate of their choice. Here, District 1 is just 50.27% black in population and is actually 

majority-white in voting age population. This district is narrowly tailored and constitutional. 

CONCLUSION 

The 1997 remedy plan is constitutional. The Court should grant the defendants’ cross-motion 

for summary judgment. 

Respectfully submitted this day of March, 1998. 

  

ADAM STEIN 

ANITA S. HODGKISS 

Ferguson, Stein, Wallas, Adkins, Gresham & 

Sumter, P.A. 

22 

 



  

Interest of Amicus 

The NAACP Legal Defense and Educational Fund, 
Inc. (LDF) was incorporated in 1939 under the laws of New York 

State, for the purpose, inter alia, of rendering legal aid free of charge 
to indigent "Negroes suffering injustices by reason of race or color." 

Its first Director-Counsel was Thurgood Marshall. LDF has 

appeared as counsel of record or amicus curiae in numerous cases 
before this Court involving denial of equal treatmetn based on race, 
see, e.g., Brown v. Board of Educ., 347 U.S. 483 (1954), gender, see 
Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971); Fitzpatrick 
v. Bitzer, age, Mckennon v. Nashville Banner Publishing Co., 
US. __ (1995); and religion, Clay v. United States, 403 U.S. 698 
(1971); see generally N.A.A.C.P. v. Button, 371 U.S. 415, 422 
(1963) (describing Legal Defense Fund as a" firm' . . . which has a 
corporate reputation for expertness in presenting and arguing the 
difficult questions of law that frequently arise in civil rights 
litigation"). 

The lessons of LDF attorneys' and other civil rights litigators’ 
experience confronting discrimination on a case-by-case basis -- e.g., 
(1) that there are myriad and "ingenious" ways in which prejudice 
may be cloaked in "neutral" garb, (2) that requiring proof of 
discriminatory motive makes such litigation far more difficult and 
divisive, and (3) that "neutral" practices often yield harms 
indistinguishable from those resulting from intentional 
discrimination, see, e.g., Griggs v. Duke Power -- have long 
informed Congress’s judgment about what civil rights legislation is 
“appropriate,” often weighing in favor of enactment of statutes that 
forbid unjustified unequal treatment, without requiring proof of 
invidious motive, see e.g., Civil Rights Restoration Act of 1991; 
Voting Rights Act. Congress's competence and power to enact such 
measures has been resolved authoritatively in numerous decisions of 
this Court, and these statutes continue to play an indispensable and 
widely accepted role in countering discrimination and its persistent 
effects. The Legal Defense Fund -- and the Nation -- have a strong 
interest in affirmation of the constitutional legitimacy of such laws 
and of the broad authority conferred on Congress by the 
Reconstruction Amendments to act decisively to safeguard 

1 

 



  

741 Kenilworth Ave., Ste. 300 

Charlotte, North Carolina 28204 

(704)375-8461 

ELAINE R. JONES 

Director-Counsel 

NORMAN J. CHACHKIN 

JACQUELINE A. BERRIEN 

TODD A. COX 

NAACP Legal Defense and Educational Fund, Inc. 

99 Hudson Street, Suite 1600 

New York, New York 10013 

(212) 219-1900 

Attorneys for Applicants to Intervene as Defendants 

23 

 



  

Americans’ rights and liberties. 

The Legal Defense Fund's experience is potentially relevant 

to this case in an additional respect: LDF attorneys served as counsel 

to the respondent in Cooper v. Aaron, 358 U.S. 1, 18 (1958), the 

landmark decision affirming this Court's authority as the primary 

expositor of the Constitution, and LDF participated as amicus 

curae in Bob Jones Univ v. United States, 461 U.S. 574 (1983), 

where the Court held that the government's "fundamental, overriding 

interest in eradicating race discrimination in education," id. at 602, 

outweighed an asserted religious right to discriminate. Although 

certain critics of the statute now before the Court have suggested that 
those decisions are implicated here, the Legal Defense Fund is firmly 

convinced that the Religious Freedom Restoration Act may and 

should be upheld as a facially valid exercise of Congress's power 

under the Fourteenth Amendment, without threatening or 

compromising either of those bedrock principles. 

Summary of Argument 

ARGUMENT 

I. THE RELIGIOUS FREEDOM RESTORATION ACT DOES 

NOT OFFEND SEPARATION OF POWERS PRINCIPLES 

The cardinal vice Petitioners ascribe to the Religious 

Freedom Restoration Act is its alleged breach of the boundary 

separating the National Legislature, invested by the Constitution 

with authority to "make the laws," from the Judicial Deparment, 

whose "province and duty" it is to "say what the law is." Marbury v. 

Madison, 5 U.S. (1 Cranch) 137, 177 (1803). Resisting as 

"disingenuous," see, the desciption of RFRA as a "mere statute," 

Petitioners instead posit that the law, by its open and manifest of 

congressional disagreement with this Court's decision in Smith, must 

be regarded as nothing less than a per se violation of Separation of 
Powers principles. A decision upholding Congress's power to enact 

the law, they warn, would risk surrender of the federal judiciary's 

(and this Court’s) rightful role as ultimate expositor of the 

Constitution, see Marbury, Cooper v. Aaron,358 U.S. 1,18 

(1958). Close inspection, however, reveals these "Separation of 

2 

 



  

CERTIFICATE OF SERVICE 
  

The undersigned hereby certifies that she has this day served a copy of the foregoing 

DEFENDANT-INTERVENOR’S RESPONSE TO PLAINTIFFS’ MOTION FOR 

SUMMARY JUDGMENT upon opposing counsel by depositing a copy of same in the United 

States mail, postage prepaid, addressed to: 

Mr. Robinson O. Everett 

Suite 300 First Union National 

Bank Building 

Post Office Box 586 

Durham, North Carolina 27702 

Mr. Edwin M. Speas, Jr. 
Senior Deputy Attorney General 

North Carolina Department of Justice 

Post Office Box 629 

Raleigh, North Carolina 27602-0629 

This day of March, 1998. 

  

Attorney for Applicants to Intervene 

as Defendants 

24 

 



Powers" concerns to be wholly chimerical. 

A. No Separation of Powers Principle Precludes Congress from 

Enacting a Statute Such as RFRA 

Petitioners seek first to locate the "Separation of Powers" 

defect in the fact that Congress, by enacting RFRA, "really imposed a 

standard of review" to be applied in "free exercise cases" -- thereby 

impairing the Court's ability to decide cases according to Smith. But 

there can be no more merit to that claim than there would be to an 

assertion that the Speedy Trial Act, 18 U.S.C. § 3161, offends the 

Separation of Powers by depriving this Court of the power to 

elaborate on its decision in Barker v. Wingo, 407 U.S. 514 (1972), in 

"speedy trial cases." 

In fact, this argument, that laws enabling federal courts to 

dispose of cases on nonconstitutional grounds is to be suspected as 

denying the Court opportunities to pronounce constitutional 

judgments reflects a basic misapprehension of the role assigned the 

judiciary in the constitutional scheme. Far from recognizing a 

distinct category of "constitutional cases," to be supplied to the 

Judicial Department in numbers sufficient to enable performance of 

its "function" of "announcing constitutional principles," Marbury 

stands instead for the quite different rule that the authority to 

determine constitutional questions, no less (or more) than others, is 

an incident of the power to decide "cases . . . or . . . controversies," 

U.S. Const. Art. II, § 2, cl. 1, confered by the Constitution, . See 

Valley Forge, 454 U.S. 464, 489 (1982) (“[T]he philosophy that the 

business of the federal courts is correcting constitutional errors, and 

that ‘cases and controversies’ are at best merely convenient vehicles 

for doing so and at worst nuisances that may be dispensed with when 

they become obstacles to that transcendent endeavor. . . . has no 

place in our constitutional scheme”); Accord Chicago & Grand 

Trunk R. Co. v. Wellman, 143 U.S. 339, 345 (1892) Indeed, the fact 

that the power to announce constitutional principles is so limited has 

long stood at the core of the defense of judicial review, see Plaut 

(noting that, according to Federalist No. 78, "The Judiciary would be 

... the [department] least dangerous to the political rights of the 

3  



    

99 Hudson Street, Suite 1600 

New York, New York 10013 

  

  

  
  

  

From : Norman Chachkin 

Tel. : 212-219-1900 Fax :212-226-7592 Date : 03/03/98 Page(s): 11 
  

  
  
  

To : Anita S. Hodgkiss, Esq. 

Ferguson, Stein 

Message : 
Anita; 

  

| think it would be fine to file a corrected copy of the pleading. Enclosed are the typos 

| found -- with the appropriate page numbers of your filing in bold at the beginning of 

each page (pay no attention to page numbers at the bottom). 

The brief is good -- which doesn't mean it will move Boyle or Vorhees. On the other 

hand, if partisan politics has anything to do with it, | don't see that Robinson Everett is 

speaking for the Republican Party of North Carolina, so who knows? 

Norman 

  
 



whether other bases might support the result, see South Dakota v. 

Dole; Michael M.; cf. Reynoldsville Casket Co. v. Hyde (noting that 

retroactive application of a new rule will not determine a case if "a 

previously existing, independent legal basis (having nothing to do 

with retroactivity) for denying relief"). 

In sum, even accepting for purposes of argument the most 

exaggerated claims regarding RFRA's alleged defiance of this Court's 

Smith decision, there is simply nothing constitutionally suspect (or 

unfamiliar) about a law passed with the purpose and/or effect of 

counterracting the results (beyond the particular case) of a Supreme 

Court decision, and no recognized principle of "separation of 

powers" supplies even a colorable basis for invalidating RFRA. If 

RFRA 1s a lawful exercise of a power that the Constitution confers 

on Congress, then it is constitutionally valid -- and it is to that 

question that this Court's attention must turn. 

II. RFRA is "Appropriate" Legislation Enforcing the 

Fourteenth Amendment 

A. RFRA is Plainly Constitutional Under Governing Precedent 

For more than a century, this Court's cases have emphasized 
the breadth of the reponsibility conferred upon Congress to "enforce 
by appropriate legislation" the guarantees of the Reconstruction 

Amendments. See Jones v. Alfred O. Meyer, 392 U.S. at 440. 
Specifically, the standard for testing validity of an exercise of an 

"enforcement" power has been held to be no different from that used 

to decide whether a law is "necessary and proper," see Art. I, § 8, cl. 

18, to the execution of one of Congress's other enumerated powers: 

Whatever legislation is appropriate, that is, adapted 

to carry out the objects the [Civil War] amendments 

have in view, whatever tends to enforce submission 

to the prohibitions they contain, and to secure to all 
persons the enjoyment of perfect equality of civil 

nights and the equal protection of the laws against 

State denial or invasion, if not prohibited, is brought 

within the domain of congressional power. 

15  



[page 2] redistricting plan enacted on March 31, 1997 by the General Assembly as a remedy for the 

constitutional violation found in Shaw to exist in District 12, and dismissed plaintiffs’ claim that 

District 1 in the 1992 plan was unconstitutional as moot, without prejudice. 

On October 16, 1997, two of the original three plaintiffs, along with four residents of 

District 12, filed an amended complaint in this action challenging the 1997 remedial congressional 

redistricting plan, as well as seeking a declaration that District 1 in the 1992 plan is 

unconstitutional. Within the time allowed for answering the amended complaint (the defendants 

having obtained an enlargement of time), three voters from the First District and six voters from the 

Twelfth District filed a renewed motion to intervene as defendants. To date, there has been no ruling 

on this motion. 

The plaintiffs have filed a motion for summary judgment and a motion for a preliminary 

injunction. The defendants have indicated their intention to file a cross-motion for summary 

judgment. A hearing in this matter is set for March 16, 1998. 

STATEMENT OF FACTS 

For nine decades, from 1901 until 1992, African-American voters in North Carolina were 

unable to elect a candidate of their choice to Congress. Their disenfranchisement was the result of 

conscious, deliberate and calculated state laws that both denied black voters access to the ballot box and 

effectively diluted their votes. See Gingles v. Edmisten, 590 F. Supp. 345, 359 (1984). Poll taxes, 

literacy tests, anti-single shot voting laws, at-large and multi-member election districts were all measures 

employed, particularly in the eastern part of the state. fe5-5ee Id. see also, North Carolina’s Section 

5 Submission, 1997 Congressional Redistricting Plan, submitted to the U.S. Department of Justice, 

April 7, 1997, consisiting of 5 volumes presented to the Court under the Affidavit of Gary O. Bartlett, 

by Defendants with their response to the summary judgment motion, [page 5S] two low-profile contests,  



South Carolina v. Katzenbach, 383 U.S. at 327 (quoting Ex parte 
Virginia, 100 U.S. 339, 345-46 (1880)); accord City of Rome v. 

United States, 446 U.S. 156, 174 (1980) ("Congress's authority 

under § 2 of the Fifteenth Amendment, [is] no less broad than its 

authority under the Necessary and Proper Clause”).!? These 

principles are fully consistent with the text, history, and purposes of 

the Reconstruction Amendments, see infra, and they are entirely 

sufficient to sustain RFRA. 

RFRA's detractors have argued that the Act's "ends" are not 

"legitimate," suggesting that the Act is not truly "remedial," either 

because it reaches conduct, i.e. certain "neutral laws of general 

application," whose constitutional validity under Smith is plain, or, 

more plausibly, that it is not "plainly adapted" to those ends, because 

the degree of such "overbreadth" is unacceptably high. As for the 

first, any suggestion that a law loses its "remedial" character when it 
sweeps in conduct that is not in itself prohibited by the Constitution 
is refuted by even the opinions of dissenting Justices in 

enforcemement power cases, see, e.g., City of Rome ,446 U.S. 156, 
209 (Rehnquist, J., dissenting) (“It has never been seriously 
maintained . . . that Congress can do no more than the judiciary to 
enforce the Amendments' commands”), and similar arguments have 
been uniformly and firmly rejected in related settings, see, e.g., 
United States v. United States Gypsum, 340 U.S. 76, 88-89 
(1950) (antitrust remedy may prohibit conduct that is "entirely 
proper when viewed alone"). Even the less extreme indictments of 
RFRA's breadth are defective, for: (1) severely overstating the extent 
to which the statute overhangs the Constitution (as well as the 
consequences of falling within the Act's reach); (2) slighting 
Congress's substantial expertise in designing civil rights remedies; 
and (3) overlooking altogether the ways in which RFRA's breadth 

  

“compare McCulloch v. Maryland, 4 Wheat. 316, 421 (1819): 

Let the end be legitimate, let it be within the scope of the 
constitution, and all means which are appropriate, which are plainly 
adapted to that end, which are not prohibited, but consist with the 

letter and spirit of the constitution, are constitutional. 

16  



  

racially polarized voting was sufficient to defeat the candidate chosen by black voters. 

Patterns of racially polarized voting continued in the 1996 senate campaign between Harvey 

Gantt and Jesse Helms. The regression and homogeneous precinct analyses show that statewide, Gantt 

received between 97.9 and 100% of the African-American vote, and between 35.7 to 38.1% of the non- 

African-American vote. 1997 Submission, Attachment 97C-28F-3B, Engstrom Letter dated Feb. 7, 

1997. The same election shows that white bloc voting was greater in the northeast region of the state. 

Looking at the counties which were included in District 1 of the 1997 remedy plan, it appears that the 

vote in this area is more racially divided than the-tn in the state as a whole. Mr. Gantt received from 

96.6% to 100% of the black vote, and only 24.9 to 29% of the white vote. 7d. 

All of this information about the historical exclusion of black voters, the continuing use of racial 

appeals, the socio-economic disparities affecting black voters’ opportunities to participate in the 

election process, and lack of success of black candidates, and the continuing prevalence of racially 

polarized voting was provided to the General Assembly before it passed the 1997 remedy plan on March 

31% including the most recent analyses of polarized voting that identified the level of racially polarized 

voting in northeastern North Carolina. See ette-to-stbmisstont. In crafting a remedial plan, the North 

Carolina General Assembly was aware of the potential that the failure to draw a majority-black district 

in the northeastern region of the state might subject them to liability under Section 2 of the Voting 

Rights Act. 

The initial congressional redistricting plan passed by the General Assembly in 1991 contained 

one majority-black district in the northeast which was 55.69% black in total population and 52.18% 

[page 9] the 1997 remedial plan and that these districts do not satisfy strict scrutiny. Plaintiffs’ first 

theory 1s a completely novel, and unworkable, proposition that has never been followed by any court 

that has examined what standards apply when a jurisdiction 1s remedying a voting rights violation. 

¢ 

 



  

affirmatively advances important objectives related to "the enjoyment 
of perfect equality of civil nights." 

1. Congress's Could Reasonably have Determined that RFRA 

was Needed to Safeguard the Constitutional Guarantee of 

Religious Free Exercise 

Suspicion about RFRA's bona fides as enforcement of the 
Smith Free Exercise right tends to rest on one (or more) of the 

following suppositions: (1) that the gap between the constitutional 

right and the statutory guarantee is large; (2) that "real" violations of 

the Constitutional guarantee (i.e. laws "targeting" religious practices) 

are infrequent and easily detected, cf. Lukumi, S08 U.S. at 564 

(Souter, J., concurring in judgment) (ordinance was a “rare” example 

of a law aimed at suppressing religious exercise); and/or (3) that the 

consequernces of coverage are grave. None of these is fully correct. 

First, although the majority opinions in Smith and Lukumi place laws 

"targeting" religion at the center of the Free Exercise Clause's 
concern, it bears emphasis, see supra, that Smith recognized two 

other situations in which heightened scrutiny is warranted, as a 

matter of constitutional law: when "hybrid" rights are burdened and 

when "individualized" consideration 1s possible. Indeed, Smith gives 

no indication that these categories are to be conceived narrowly, see 

491 U.S. at (noting that it is "easy to envision" a "hybrid" claim 

rooted in the right to Free Association -- even though the Court 

apparently has never decided a case explicitly on mixed, religion and 

association, grounds); see also Bowen v. Roy, 476 U.S. 693, 708 

(Burger, C.J.) (in an individualized determination case, “refusal to 

extend an exemption to an instance of religious hardship suggests a 

discriminatory intent”). Any determination of RFRA's "overbreadth" 

would need to take into account the full range of situations to which, 

consistent with Smith, heightened constitutional scrutiny is still 

applicable.” Similarly, no "overbreadth" judgment could rest on the 

  

Commentators have noted that almost any religious claim might be 
characterized as a "hybrid," see, e.g., James E. Ryan, Note, VA. L. REV.. 

Indeed, the facts of this case, involving denial of a congregation's 

(associational) right to worship together and the extinction of an owner's right 

17 

 



  

Plaintiffs’ second theory is without factual support. For these reasons, defendants’ cross-motion for 

summary judgment should be granted. 

I THE STATE LEGISLATURE IS NOT REQUIRED TO COMPLETELY 

REDESIGN CONGRESSIONAL DISTRICTS IN ORDER TO REMEDY A 

SHAW VIOLATION 

Plaintiffs contend that the new North Carolina congressional redistricting plan should be 

declared unconstitutional because it is fruit of the poisonous tree of the prior redistricting plan held to 

be unconstitutional. Essentially, plaintiffs would have this Court hold that if a state does not completely 

discard the original challenged plan before developing its new remedial redistricting plan, that new plan 

should be held unconstitutional. Plaintiffs’ argument reflects a misunderstanding of the current state 

of voting rights law and an unrealistic view of the redistricting process, during which the state must 

engage in a complex balancing of many competing interests. 

When curing a violation, states have a legitimate interest in minimizing the disruption of tts their 

political process, for example, by ensuring that prior partisan balances are maintained and the 

surrounding districts are preserved to the extent possible. Courts have recognized the necessity of 

jurisdictions considering these issues, giving states deference in the redistricting process, see Miller v. 

Johnson, 515 U.S. 900, 115 S.Ct. 2475, 2488, 132 L.Ed.2d 762 (1995); White v. Weiser, 412 U.S. 
  

783, 794-95 (1973). Scott v. United States, 920 F. Supp. 1248, 1255 (M.D. Fla. 1996); hitev-     

Heiser 412-5783; 794=95(1973), and granting states the first opportunity to propose a remedial 

[page 10] McDaniel v. Sanchez, 452 U.S. 130, 150 n.30 (1981). These rulings reflect an 

understanding and endorsement of the delicate balance between these competing interests which states 

must strike in drawing redistricting plans. 

 



  

(supposed) paucity of recent instances of deliberate targeting: 

assuming for argument's sake that the number of such cases is 

modest, infrequency could as much be an indication of the efficacy of 

the deterrents (i.e., the Scherbert test and, later, RFRA) as of the 

rarity of the offense. It is not hard to imagine that a jurisdiction that 

refrained from acting to curtail unpopular religious practices when 

the law provided for judicial review of all action substantially 
burdening religion might behave differently under a legal rule 

affording a safe harbor for "neutral laws of general application." 

Also plainly relevant to the reasonableness of Congress's 
judgment are the consequences of any statutory overbreadth. While 

Oregon v. Mitchell and Katzenbach v. Morgan involved federal 
statutes that operated to void certain State laws that, by hypothesis, 

would have been upheld judicially, RFRA is not so rigid. Rather, 

RFRA gives governmental defendants an opportunity to defend their 

laws under a standard that produces substantial convergence, if not 
complete overlap with the Constitution's requiremen, see City of 
Richmond v. J A. Croson, 488 U.S. 469, 493 (1989) (O'Connor, J.) 
("purpose" of strict scrutiny is to "smoke out" illegitimate motives); 
EEOC v. Wyoming, 460 U.S. at 239 (ADEA "requires the State to 
achieve its goals in a more individualized and careful manner than 

  

to develop property as he sees fit, see Penn Central, Dolan v. City of Tigard, 
might well qualify for heightened constitutional scrutiny as a "hybrid." There 

might also be issues as to whether the law creating the landmark district is 
sufficiently "general" to qualify for Smith's safe harbor or whether the process 
by which building permits are granted and denied may be treated as an 

"individualized exemption" regime. See ("select"); Dolan v. City of Tigard. 

Significantly, these latter sorts of issues highly fact-intensive, and their full 

litigation requires substantial resources. A single individual (with an equally 

meritorious religious claim) might have far more difficulty bringing such a 

case -- or persuading an attorney to do so. 

“That the Court caught the City of Hialeah red- handed in the 
Lukumi case is of ambiguous significance. Whatever reassurance is to be 

derived from the fact that none of the Justices in Lukumi had difficulty 
determining the law to be invalid under Smith, is undercut by awareness that 
the lower Court judges were similarly confident in their determination that the 
law was, in fact, "neutral and general." 

18 

 



  

Plaintiffs would put the state in the untenable position of completely disregarding the complexity 

of the redistricting process in the course of curing a constitutional violation. Given the realities of the 

redistricting process, plaintiffs’ approach makes little real-world sense, as the construction of a district 

typically does not occur by the state considering isolated, unrelated factors. The creator of a plan which 

cures a defect with one district, considering a mass of political, geographic, and demographic data and 

a mix of redistricting policies, does not make redistricting decisions without regard to the effect on the 

overall profile of the plan. The reasons for each redistricting decision cannot fairly be evaluated in 

isolation. Thus, in the development of remedial plans, states routinely and legitimately take into 

account the effect of making any changes to the original plan, as this could impact the opportunity to 

maintain prior political balances. In the course of curing a constitutional violation, it would, therefore, 

be entirely realistic for a state to seek to make the least alterations possible to a plan, if doing so would 

assist in meeting its other redistricting goals. Plaintiffs’ argument would seriously impact the settlement 

and remedial process in voting rights cases, as the state could not development plans which both cure 

statutory and Constitutional objections while also taking into consideration the state’s legitimate 

political interests. 

In essence, plaintiffs’ argument 1s an attempt to mask their primary objection to the 1996 plan: 

the fact that the remedial plan maintains two districts with substantial black populations. For plaintiffs, 

it 1s constitutionally fatal for a plan designed to remedy a finding of unconstitutionality to also create 

such districts. This standard, however, is incompatible with the holdings of the Supreme 

[page 12] 135 L.Ed.2d at 297. Justice O'Connor therefore concluded that states have a compelling 

interest in complying with Section 2 of the Voting Rights Act and, more specifically, complying with 

"the results test as this Court has interpreted it." /d. Justice O'Connor went on to find that Texas had 

a strong basis to believe that a majority-minority district should be drawn in Dallas, because voting was 

4 

 



  

would otherwise be the case, but it does not require the State to 

abandon those goals, or to abandon the public policy decisions 

underlying them"); ¢f. South Carolina v. Katzenbach, 383 U.S. at 
331 (noting that Voting Rights Act "[a]cknowledge[d] the possibility 
of overbreadth," by "provid[ing] for termination of special statutory 

coverage at the behest of States and political subdivisions in which 

the danger of substantial voting discrimination has not 

materialized"); compare Estate of Thornton v. Caldor, Inc., 472 
U.S. 703, 709 (1985) (invalidating on Establishment Clause grounds 

“statute impos[ing] on employers and employees an absolute duty to 

conform their business practices to the particular religious practices 
of the employee”). 

  

"While some practices may fall under RFRA that would have 
survived under the Smith regime, that would likely be a consequence of the 

Act's shift in the burden of persuasion (and the risk of nonpersuasion) from 

plaintiffs to defendants. While Petitioner's suggest that with such a shift of 

persuasion, Congress has turned “Night into day,” this Court has taken a more 

restrained view, see City of Rome (Rehnquist, J., dissenting) (in light of 

“difficulties of proving [intent] . . . Congress could properly conclude that as a 

remedial matter it was necessary to place the burden of. proo[f]” on 

government defendants); Plaut ("Congress can eliminate . . . a particular 

element of a cause of action that plaintiffs have found it difficult to establish 

Even if the statutory standard were overinclusive, however, i.e., 

authorizing invalidation of actions that might not, strictly speaking, be 

"targeted" against religion, it would retain a substantial degree of rationality, 

for the more likely a statute is to fail the RFRA test, the more likely it is to 

reflect indifference to legitimate religious practice. Cf. Farmer v. Brennan, 

511 U.S. 825 (1994) (slip op. at 9) (discussing states of mind "between the 

poles of negligence at one end and purpose or knowledge at the other"). 

Importantly, that a rule that outlaws discriminatory effects per se 

(without affording a defendant jurisdiction the opportunity to prove pure 

motives) is not a grounds for wariness. Such laws typically implicate a 

second -- and fully legitmate -- sort of remedial power: the authority to address 

the persisting effects of past discrimination; see, e.g., Gaston County v. 
United States, 395 U.S. 285, 296 (1969) ("impartial" literacy test "fair[ly]" 

administered, may be supended, so as to deny effect to past discrimination in 

education); see also The Civil Rights Cases, 109 U.S. at 11 (noting Congress's 

unquestioned authority to "enact appropriate legislation correcting the effects 

of . . . prohibited state laws"). That strand of the legislature's remedial power 

19 

 



  

racially polarized and it was possible to draw a reasonably compact district with substantial African 

American populations. Id. at 281. Justice O'Connor's opinion on this issue is particularly significant 

because four other members of the Court, who dissented from the rulings striking down the North 

Carolina and Texas plans, clearly agree that states have a compelling interest in avoiding minority vote 

dilution and complying with Section 2 of the Voting Rights Act. Bush v. Vera, 135 L.LEd.2d at 307 

(Stevens, J., joined by Ginsburg and Breyer, JJ., dissenting); id. at 328 (Souter, J., joined by Ginsburg 

and Breyer, JJ., dissenting). Thus, Justice O'Connor's opinion confirms that reasonably compact 

majority-black districts are permissible even under the Court's new Fourteenth Amendment doctrine, 

and that states continue to have a compelling interest in complying with Section 2 of the Voting Rights 

Act. 

Far from calling into question Section 2's constitutionality, the Supreme Court summarily 

affirmed the decision of a three-judge district court in California which upheld the deliberate creation 

of majority-minority districts which were designed to comply with the Voting Rights Act. DeWitt v. 

Wilson, 856 F. Supp.1409, 1415 (E.D.Cal. 1994), aff'd. U.S. (199 ). The DeWitt decision 
  

holds that the intentional creation of majority-minority districts does not violate the Constitution when 

the redistricting plan "evidences a judicious and proper balancing of the many factors appropriate to 

redistricting, one of which was the consideration of the application of the Voting Rights Act's objective 

of assuring that minority voters are not denied the chance to effectively [page 13] at 1413-14." This 

is further corroborated by the Supreme Court’s most recent decision upholding the constitutionality of 

a Florida majority-minority district drawn with race as a factor, even though it was seme—what 

  

' A further understanding of the Del#itt decision can be gleaned by reviewing the decision of 

the California Supreme Court which created the redistricting plans challenged in Delitt. See 

Wilson v. Eu, 823 P.2d 545, 563-564, 582, 583-584, 594 (Cal. 1992) (describing the various 
special efforts taken to create districts which would comply with the Voting Rights Act). 

3 

 



  

In the end, to acknowledge the significance of factors such as 

likelihood of detection, litigation costs (both financial and other, cf. 

Mobile v. Bolden (Marshall, J., dissenting (strssing divisiveness and 

difficulty of proving discriminatory intent), see HR. REP. at 6 

(noting "court's reluctance to impute bad motive"), and likelihood 

and cost of error is to underscore that determining the appropriate 

means of enforcing the Free Exercise guarantee involves areas of core 

legislative competence and expertise. Not only is Congress best 

equipped to register and balance the relative dangers of over- and 

under-deterrence, but 1t does so informed by long experience drafting 

and overseeing statutes securing civil rights and civil liberities. See 

Fullilove 448 U.S. 448, 502-3 (1980) (Powell, J., concurring) 
(“Congress has no responsibility to confine its vision to the facts and 

evidence adduced by particular parties. Instead, its special attribute 

as a legislative body lies in its broader mission to investigate and 

consider all facts and opinions that may be relevant to the resolution 

of an issue. One appropriate source is the information and expertise 

that Congress acquires in the consideration and enactment of earlier 

legislation.”). Seen in this light, the "appropriateness" of RFRA's 

main innovation -- providing a cause of action that depends on 

(relatively easy to detect) burdens on practice, rather than on the 

(more elusive) "generality" vel non of the law imposing the burden - 

should not be second-guessed. Cf. McCulloch v. Maryland, 4 Wheat 

at 423 ("where the law is not prohibited, and is really calculated to 

effect any of the objects entrusted to the government, to undertake 

here to inquire into the degree of its necessity, would be to pass the 

line which circumscribes the judicial department, and to tread on 
legislative ground") 

2. RFRA Implicates Congress's Core Power to Enforce Equal 

Protection 

a. RFRA Provides Protection for Minorities 

As much as RFRA was meant to supply a fully effective 

safeguard for the constitutional immunity from laws "prohibiting the 

  

is not implicated in this case. 

16 

20 

 



somewhat irregularly shaped and split county and city boundaries. Lawyer v. United States, 521 U.S. 

~ ,1178.Ct.  , 138 L.Ed.2d 669 (1997). The creation of remedies to comply with Section 2 of 

the Voting Rights Act are is not per se unconstitutional. See Bush v. Vera, 135 L.Ed.2d at 279; Clark 

v. Calhoun County, 88 F.3d 1393, 1407 (5th Cir. 1996) (the Supreme Court in its recent decisions did 

not alter the Gingles proof, nor did the "Court suggest that a district drawn for predominantly racial 

reasons would necessarily fail the Gingles test."), Cane v. Worcester County, 35 F.3d 921, 926-27 n.6 

(4th Cir. 1994), cert. denied, 115 S. Ct. 3616 (1995)(holding that Shaw 1s not implicated in Section 

2 challenge to at-large election scheme where proposed majority-black remedial district was comparable 

to other election districts drawn by the county). 

In view of the affirmances in Lawyer and Deliit, as well as the Supreme Court's repeated 

assurances that the use of race in drawing distrretstne district lines does not automatically render those 
    

districts unconstitutional, and Justice O'Connor's important concurring opinion in Vera, it appears 

evident that states have a compelling justification in complying with Section 2 of the Voting Rights Act. 

Moreover, Shaw and its progeny, support the continued creation of these remedial districts in order to 

comply with the strictures of the Act when redistricting. 

In fact, Lawyer provides an important laboratory for how these considerations should be [page 

15] the applicable federal and state constitutional and statutory provisions, it will become the governing 

law. Wise v. Lipscomb, 437 U.S. 535, 540 (1978). “A State’s freedom of choice to devise substitutes 

for an apportionment plan found unconstitutional, either as a whole or in part, should not be restricted 

beyond the clear commands of the Equal Protection Clause.” Burns v. Richardson, 384 U.S. 73, 85 

(1966). Indeed, in Shaw v. Hunt, 517 U.S. 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996), the Supreme 

Court reminded us that “states retain broad discretion in drawing districts to comply with the mandate  



free exercise of religion," its text, structure, and legislative history 

disclose a distinct, complementary statutory purpose: to assure equal 

treatment for "all." see 42 U.S.C. 2000bb, equally weighty religious 

claims. When this aim is taken into account, RFRA's breadth ceases 

altogether to be ground for consitutional suspicion, see supra, and 

instead weighs powerfully in its favor, as reflecting the wholly 

legitimate concern, explicitly acknowledged in Smith, amply recorded 

in history (and familiar, no doubt, from congressional experience) 

that a system in which accommodations of religious practice must be 

obtained, one at a time, through the political process poses a deep 

threat to unpopular, uncommon, or poorly understood religious faiths 

-- and to principles of equality, in general. Cf. Larson, 456 U.S. at 

245-46 ("There 1s no more effective practical guaranty against 

arbitrary and unreasonable government than to require that the 

principles of law which officials would impose upon a minority must 

be imposed generally." Railway Express Agency, Inc. v. New York, 

336 U.S. 106, 112 (1949) (Jackson, J., concurring)) 

If the testimony heard by Congress before RFRA's 

enactment made one point above all others, it was that the 

consequences of the Smith rule -- i.e., a regime in which any 

protection for religious exercise beyond the modest constitutional 
minimum was a matter of legislative grace -- would bear unequally 

on adherents of "minority" religions, typically "discrete and insular" 

groups whose ability to influence the political process is negligible 

and whose ways are most likely misunderstood by the societal 

mainstream. Thus, Congress head testimony from In many cases, 

although not always, see Sen. Hearing (Elder Dallin Oaks, 

representing the Mormon Church), these groups are racial and ethnic 

minorities who face additional prejudice and misunderstanding on 

those grounds, Yang v. Sturner, 780 F. Supp. 558 (D.R.1. 1990) 

(Hmong), ; Munn v. Agee, 924 F.2d a568 (5th Cir. )(Jehovah's 

Witnesses), OSHA Notice (revoking exemption from hard hat rule 

for Sikhs); Santeria, Natrive Americans, Rastafarians.!’ 

  

"Muammed Ali FN.