Order Setting Status Conference

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Mar 07 00 04: 42P CHIEF JUDGE BUYLE 

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF NORTH. CAROLINA 

EASTERN DIVISION 

No. 4:96-CY-104-BO(3) 

MARTIN CROMARTIE, ef al. 

Plaintiffs, 

Vv. 
OPINIQN 

JAMES B. HUNT, JR., in his official 

capacity as Governor the State of North 

Carolina, et al, 

Defendants. 

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BOYLE, Chief District Judge: 

This matter is before the Court on remand from the United States Supreme Court's order 

holding that the underlying case was not suited for summary disposition and ordering this Court 

to conduct further proceedings. Hunt y, Cromertie, 526 U.S, 541, 113 5. Ct. 1545, 143 L.Ed 

731 (1998). The underlying action challenges the congressional redistricting plan enacted by 

the General Assembly of the State of North Carolina on March 31, 1997, contending that 1t 

violates the Equal Pestection Clause of the Fourteenth Amendment, and zelying on the line of 

cases represented by Shaw v. Hunt, 517 U.S. 899, 116 S. Ct, 1894, 135 L.Ed.2¢ 207 (1996) 

("Shaw II"), ead Miller v, Johnson, 515 U.S. 900, 904, 113 3. Ct, 2475, 2482, 132 L.Ed.2d 762 

(1995). 

Following the Supreme Court's decision to remand, the parties undertook a new round of 

discovery, ending in October, 1999, Between November 28 and December [, 1999, a wisal was 

held before this Court.  



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Fad 

BACKGROUN 

In Shaw 11 the United States Supreme Court held that the Twelfth Congressional District 

created by the 1992 Congressional Redistricting Plan (kereinafler, the "1992 Plan”) was race- 

based and could not survive the required "strict scrutiny.” 517 U.S. 899, 116 S. CL 1894. The 

five plaintiffs in Shaw lacked standing to attack the other mejority-minerity district (the First 

Congressional District under the 1992 Plan) because they were riot registered voters in the 

district. Jd, 

Socm after the Supreme Court ruled in Shaw II, three residents of Tarbalo, North 

Carolina. filed the original Complaint in this action on July 3, 1996. These original Plaintiffs 

resided in the First Congressional District (alternatively, "District 1") as it existed ander North 

Carolina's 1992 Plan. The Plaintiffs charged that the First Congressional District violated their 

rights to equal protection under tke United States Constitution because race predominated in the 

drawing of the District. The action was stayed pending resolution of remand procezdings in 

Shaw v. Hunt, and on July 9, 1996, the same three Tarboro residents joined the Plaintiffs in 
  

Shaw in filing an Amended Complaint in that case, similarly challenging District 1. 

By Order dated September 12, 1997, the three-judge panel in Shaw approved 2 

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

remedy for the constitutional violation found by the Supreme Court to exist in the Twelfth 

Congressional District (altematively, "District 12"). The Skaw three-judge panel also dismissed 

without prejudice, as moot, the plaintiffs’ claiin that the First Congressional District in the 1992 

Plan was unconstitutional. Although it was a final order, the September 12, 1997, decision of the 

Shaw three-judge panel was not preclusive of the instant cause of action, as the pane] was not 

 



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CHIEF JUDGE BOYLE for ee 

presented with 2 continuing challenge ta the redisticting plan.’ 

On October 17, 1997, this Court dissolved the stay previously catered in this mauer, On 

the same day, two of the original three Plaintiffs, along with four residents of District 12, filed en 

amended Complaint challenging the 1997 red] congressional redistricting plan (the “1997 

Plan"), and seeking a declaration that the First and Twelfth Congressional Districts in the 1997 

Flan are unconstitutional racial gerrymanders. A three-judge panel was designated by order of 

the Chief Judge of the Fourth Circuit Court of Appeals, dated January 23, 1958. 

The Plaintiffs moved for a preliminary injunction on January 30, 1398, and for summary 

judgment on February S, 1998, Defendants filed for sunmary judgment on March 2, 1958, and a 

hearing on these motions was held on March 31, 1998, On April 3, 1998, a majority of the 

three-judge panel issued an Order and Permanent Injunction finding that the Twelfth 

| Congressional District under the 1997 Plan was unconstitutional and granting Plaintiffs summary 

judgment as to that district. The Order and Permanent Injunction also granted Plaintiffs’ MoGon 

for Preliminary lnjunction and granted Plai ntiffs' request far 8 Permanent Injunction, thereby 

enjoining Defendants from conducting any primary or general election for congressional offices 

under the 1997 Plan. Finally, the Court ordered the parties to file 8 written submission 

addressing an appropriate time period within which the North Carolina General Assemb ly would 

  

* In its final Memorandurn Opixion the three-judge panel in Shaw noted that there was 
"no substantive challonps (o the [1997] plaz by any party to this action,” and closed by explicitly 
‘noting the limited basis of the appraval of the plen that we are empowered to give in the context 
of this lit) gation. Ir ie limited by the dimensions of this civil action as that is defined by the 
parties and the claims properly before us. Here, that means that we only approve the plan as an 
adequate remedy for the specific violation of the individual equal protection rights of those 
plaintiffs who successfully challenged the legislature's creation of former District 12. Our 
approval thus does not~—cannot—run beyond the plan's remedial adequacy with respect to those 
parties and the equal protection violation found as to former District 12." Shaw v. Hunt, No, 92- 
202-CIV-3-BR, at 8 (E.D.N.C. Sept. 12, 1997). 

  

3 

 



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be allowed the opportunity to correct (he constitutional defects in the 1997 Plan, and to present a 

proposed election schedule to follow redistricting which provided for a primary election process 

culminating in a general congressional election to be held on the date of the previously 

scheduled general election, 

Defendants filed a Motion to Stay the April 3 Order, which was denied by this Court on 

April 6, 1998. On that date, Defendants appealed the denial of their Motion to Stay to the United 

States Supreme Court, which upheld this Court's denial on Apr! 13, 1998. Hunt v. Cromartie, 

523 U.S. 1068, 118 S.Ct. 1510, 140 L.Ed.2d 662 (1998). | 

On April 14, 1998, this Court issued 2 Memorandum and Opinion issuing its findings of 

fact and conclusions of law regarding the April 3, 1998 order and denying Plaintiffs’ Motion for 

Summary Judgment with regard to the Fist Congressional District under the 1997 Plag. On 

April 17, 1938, Defendants filed a motion asking the Court to reconsider its April Soren On 

April 2], this Motion to Reconsider was denied. 

On April 21, 1998, the Court issued a scheduling order, requiring that the General 

Assembly either submit a new plan to the Court and the Department of Justice by May 22, 1998 

or the Court would assume respansibility for drawing an interim plan. On May 22, 1998, 

Defendants submitted the 1998 Congressional Redistricting Plain ("the 1998 Plan"). The 1998 

Plan contained a clause stating that, i the event that the United States Supreme Court found for 

the State in its appeal, thc 1958 Plan would no longer bs ardered and thus North Caralina's 

congressional districts would revert to the 1997 Fle, 
On October 19, 1598, the Court granted & Joint motion to stay all proceedings in this 

action pending a decision by the United States Supreme Court in Hunt v. Cromartie, dockated m 

the Supreme Court on September 16, 1998 ” No. 58-450. 

4 

 



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a 

. 

On May 17, 1999 the United States Supreme Court enterad an order holding that the 

underfying case was not suited for summary digpasitien and ordering this Court to conduct 

further proceedings. - Hunt v. Cromartie, 526 U.S. 541, 119 S. Ct. 1545, 143 L.Ed. 731 (1999). 

In compliance with the Supreme Court's decision, a three day beach trial was held in this 

matter, from November 29 to December |, 1999. Plaintiffs called eight witnesses, Plaintiffs 

first witness was Senator Hamilton Horton, a resident of Forsyth County and longtime member 

of the North Carolina General Assembly. Senator Horton testified as to his belief that Forsyth 

County and Winston-Salem were split along racial lines in the 1997 Plan aad that District 12 was 

created with a predominantly racial motive. 

Plaintifls' second witness was Bbresrniative Steve Waad, a resident of High Point, 

North Carolina. Representative Wood testified that in 1997 lw served In the Nordh Carolina 

Genera! Assembly in a leadership position. Representative Wood ran for Congress in the 

Twelfth District under the 1998 Plan and is convinced that the 1597 Plan divided High Point and 

Guilford County 2long racial lines for a predominantly racial motive. 

As their third witness, Plaintiffs called Represcntative John Weatherly of King's 

Mountain, North Carolina, 2 member of the North Carolina General asserubly during the 

consideration of the 1997 and 1998 redistricting plans wha bad previously served oa a 

comunission considering the State's legislative process, Representative Weatherly testified that 

he introduced legislation to facilitate the redistricting process doug the use of a redistricting 

commission and that, on the basis of his political and legislative experience, he believed that 

both Districts 1 and 12 were drawn with a predominantly racial motive. 

Plaintiffs’ fourth witmess was R_ O. Everelt, 2 longtime resident of Salisbury, North 

Carolina who has been active in poliics and has run for the state legislature. Mr. Everett 

5 

  

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testified that he was familiar with the congressional districts in the Salisbury and Rowan County 

areas and is convinced that District 12 was drawn with z predominantly cacial motive. 

Plaintiffs' fifth witness was JH. Froelich Jr., 2 Lifetime resident of High Paint, NC who 

testified that he has been active in state and local politics and believes that Guilford County was 

divided with a predominantly racial mative in both the 1992 and 1997 Plans and that the 1997 

Plan's District 12 was drawn with a predominantly racial motive. 

Plaintiffs’ sixth wimess was Neil Will taras, a resident of Charlotte wha served on ifs city 

council, is familiar with the Mecklenburg County precincts, and ran for Congress in the 1992 

Plan's District 9. Mr. Williams testified that he is convinced that Mecklenburg County was 

divided along racial lines with a predominant racial motive and that the 1997 Plan's District 12 

was drawn with a predominantly racial motive. 

| Plzintiffs' seventh witness was Don Frey of the North Carolina General Asserably's 

Information Systems Division, who presented statistical data from the General Assembly's 

database, including relative numbers of persons maved from the 1992 Plan to the 1397 Plan, and 

current precincts split by the 1997 Plea. | 

Plaintiffs’ eighth and final witness, whosa testimony carried over into the second day of 

trial, was Dr. Ronald Weber of the University of Wisconsin. Dr. Weber testified as an experl 

political scientist who has studied, consulted on, and testified in any redistricting cases. 

Referring to maps and other data, Dr. Weber testified that race predominated in the construction 

of Districts 1 and 12 under the 1997 Plan, and that cities, counties gad precincts were divided 

along racial lines. Dr. Weber concluded that no motivation other than race could adequately 

explain the legislature's decisions to include, exclude, or split certain Drsciiats, 

Beginning on November 30, the second day of trial, the Defendants called four witnesses. 

6  



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Defendants’ first witness was Senator Roy Asberry Cooper, III, wi testified as to the legislative 

history and enactment of the 1597 Plan in the North Caraina Serate, focusing an the creation of 

Districts | and 12. Senator Cooper testified that he was unsure whether he could get the 1997 

Plan precleared by the Justice Department without cresting a majerity-minority First District. 

Senator Cooper's testimany also brought to light a February 10, 1997 email message (the 

"Coher-Coaper Email") seat fo him by Director of Bill Drafting Gerry Coher, a state employee 

charged with the technical aspect of drawing the districts in 1991, 1992, and 1997 Plans. The 

Cohen-Cooper Email stated, in part, that "By shifting areas in Beaufort, Pitt, Craven and Jones 

Counties, I was able to boost the minority percentage in the first district from 48.1% to 49.25%. 

The district was only plurality white, as the white percentage was 49.67%." (Exhibit 58; Trial 

Transcript at 438) The email continues, "This was all the district could be improved by 

switching between the 1° 2nd 3™ unless I went into Pasquotank, Perquimans , or Camden. I was 

able to make the district plurality black by switching precincts between the 1% and 49..." 

(Exhibit 58, Tnal Transcript at 438) The Cohen-Cooper email also states that "I [Cohen] have 

moved Greensboro Black community into the 12% and now need to take bout (sic) 60,000 out of 

the 12%. [await your direction on this." (Bxhibit 58, Trial Transcript at 412) 

The senator stated that he did not remember receiving the Cohen-Cooper email and 

denied having given Cohen “specific instructions.” (Triel Transcript at 413, 438) 

Additionally, Senator Cooper was questioned about a staternent he made to the March 25, 

1397 meeting of the House congressional redistricting committee, in which he ergued that the | 

1937 Plan “provides for a fair geographical, raciel and partisan balance throughout the state of 

North Carolina” (Trial Transcript at 429) The senator claimed that the term “partisan balance® 

referred to maintaining the six-six Democrat-Republican split in the congressional delegation, 

2  



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but denied that the term "racial balance" would refer to maintaining the tea-(wo balance between 

whites and African Americans. (Trial Transcript at 429-30) Senator Caoper admitted that race 

was "one of the factors that was considered" in drafting the 1997 Plan, and that but denied that it 

was the predominant factor, (Trial Transcript at 430) 

Defendants began the third day of trial with their second witaess, Representative W. 

Edwin McMahan, who testified as ta the legislative history and enzctment of the 1397 Plan in 

the North Caroline House of Representatives, especially the creation of Districts 1 and 12. 

Representative McMahan claimed that race was not the predominant factor in the creation of 

those districts. | 

Defendants’ thicd witness was Dr. David Peterson of the University of North Carolina at 

Chapel Hill's Department of Geography and Sciences. Dr. Peterson presented a statistical 

analysis of da regarding the question whether race predominated over party affiliation in the 

construction of the 1997 Plax's District 12. Dr. Peterson also discussed the variance between 

Democratic registration and voting behavior, and analyzed Dr. Weber's reasoning on the 

predominance of race 2s 8 factor in the creation of District 12. In contrast to Dr. Weber, Dr. 

Petersan’s conclusion was that political considerations, rather than race, might possibly account 

for the legislature's decisions to include, exolude, or split certain precincts. 

Defendants’ final witness was Gerry Cohen, Director of Bill Drafting for the North 

Carolina General Assembly. Mr. Coben tastified 85 to the legislative history and enactment of 

the 1997 Plen, especially with regard to Bistricts 1 and 12, as well as the technical aspects of 

redistricting, including the computer syscems used. 

FACTS 

As discussed above, in 1992 the State of North Carolina established z new set of 

8 

 



  

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proposed congressional districts. This 1992 Plan created two districts, the First and the Twelfth, 

that were challenged by a group of plaintiffs who claimed that the State had deliberately 

segregated voters into districts on the basis of race without compelling justification. In Shaw v. 

Reno (“Shaw [”), the United States Supreme Court held that this allegation stated a claim for   

rel{ef under the Equal Protection Clause of the Fourteenth Amendment. 509 U.S. 630, 65 8, 113 

S.Ct. 2816, 125 L.Ed.2d 511 (1993). 

On remand, the District Court found that North Carolina’s Twelfth District created by the 

1992 Plan classified voters by race, but that the plaintiffs lacked standing to challenge the First 

District. In Shaw II, the United States Supreme Court affirmed this finding and further held that 

the State had not established (hat its reapportozinint scherne wes narrowly tailored to serve a 

compelling state interest, and therefore tha 1992 Plan failed the requisite “striet scrutiny” test. 

517 U.S. 899, 116 S. Ct. 1894, 

The North Carolina General Assembly convened in regular session on January 29, 1997, 

and formed redistricting comraittees to address the defects found in the 1992 Plan, These newly 

formed House and Senate Committees aimed to id entify a plan which would cure the 

constitutional defects and receive the support of a majority of the members of the General 

Assembly. Affidavit of Senator Roy A, Coaper, [II ("Cooper AE") 3. In forming a workable 

plan, the committees were guided by two avowed goals: (1) curing the constitutional defects of 

the 1992 Plax by assuring that ruce was not the predominant factor in the new plan, and 2) 

drawing the plan to maintain the existing partisan balance in the State's congressional delegation. 

Cooper AR. 715, 8, 10, 14; Affidavit of Gary O. Bartlett, Executive Secretary-Director of the 
State Board of Elections (“Bartlett AIL"), Vol. I Commentary at 5-10. 

To achieve the second goal, the redistricting committees drew the gow plaza (1) w avoid 

9 

  

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} 

placing two incumbents in the same district and @) to preserve the partisan core of the existing 

districts to the extent consistent with the goal of curing the defects in the old plan. Cooper Af. 

{l4. The plen as enacted largely reflects these directives: incumbent Congressmen generzlly do 

not reside in the same district, and each district retaing at least 60% of the population of the old 

district. Cooper ASE. 8, Affidavit of Representative W., Edwin McMahan (“McMahan AK") 17. 

1 The Twelfth Congressional District 

District 12 is one of the six predeminaatly Democratic districts established by the 1997 

Plan to maintain the 6-6 partisan division in North Carolina's congressional delegation. Distnct 

12 is not a majority-minrity district,” but 46,67 percent of its total population is African 

American. Bartlett Aff, Vol. I Commentary at 10 and 11. District 12 is composed of six 

counties, all of them split in the 1997 Plan. The racial composition of the parts of tha six sub- 

divided counties assigned to District 12 include three with parts over 50 percent African- 

American, and three in which the African-American perceatage is under SO percent. Declaration 

of Ronald E. Webber ("Webber Dec.”) 18. However, alinost 75 percent of the total population 

in District 12 comes from the three county parts which are majority Afsican-American in 

population: Mecklenburg, Forsyth, and Guilford counties. Id. The other three county parts 

(Davidson, Iredell, and Rowan) have narrow corridors which pick up as many African- 

Americans as are needed for the district to reach its ideal size? 1d. 

  

! The Twelfth is not 2 majority-minority district as measured by any of three possible 
criteria. Africag-Americans constitute 47 percent of the total population of District 12, 43 

percent of the voting age population of the District, and 46 percent of the registered voters in the 
District. Peterson AFT, at 8. 

3 An equitably populated congressional district in North Carolina needs a total 
population of about 552,386 persons using 1990 Census data. Weber Dec. §39. 

10 

 



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Where Forsyth County was split, 72.9 percent of (he totz{ papulation of Forsyth County 

tlJocated to District [2 is African-American, while anly 11.1 percent of its total populution 

assigned 10 neighboring District § is African-American. Id. 20. Similarly, Mecklenburg 

County Is split so 51.9 percent of its total population allocated to District 12 is African- 

American, while only 7.2 percent of the total population assigned to edjoining District 9 is 

African-Amefican. 

A similar pattern emerges when analyzing the cities and towns split between District [2 

and its surrounding districts: the four largest cities assigned to District 12 are split along racial 

lines. Id. Y23. For example, where the City of Charlotts is split between District 12 and adjacent 

District 9, 59.47 percent of the population assigned to District 12 is African-American, while 

only 8.12 percent of the Charlatte population assigned to District 9 ig African-American. 

Alidavit of Martin B. McGee ("McGee Aff"), Ex. L. And where the City of Greensboro is 

split, 55.58 percent of the population assigned to District 12 is African-American, while only 

10.70 percent of the population assigned tq District 6 is African-American. Id. 

An analysis of the voting precincts immediately surrounding District 12 reveals that the 

legislature did not simply create a majority Democratic district amidst surrounding Republican 

precincts, For example, around the Southwest edge of Diatrict 12 (in Mecklenburg County), the 

legislature included within the district's borders several precincts with racial compositions of 40 

to 100 percent African-American, while excluding fram the district voting precincts with [ess 

than 35 percent African-American population, but heavily Democratic voting registrations. 

Among Mecklenburg County preciacts which are immediately adjacent to District 12, but nat 

inside it, are precincts with 58.818 percent of voters registered as Democrats, and precincts that 

are 56.464 percent Democratic, 54.213 percent Democratic, 59.135 percent Democratic, 59.225 

11  



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percent Democratic, $4.498 percent Democratic; 59.098 percent Democratic, 55.72 percent 

Democratic, 54.595 percent Democratic, 54.271 percent Democratic, 63.452 percent 

Demo nid and 59.453 percent Democratic. 1d, Ex. P. Sirnilarly, Forsyth County precincts 

that are immediately adjacent to, but not inside, District 12 include precincts with 57.371 percent 

Democratic registration, 65.253 percent Democratic registration, 65.747 percent Democratic 

registration, 65.747 percent Democratic registation, 76 percent Demacranic registration, 55.057 

percent Democratic registration, 55.907 percent Democrztic registration, 56.782 percent 

Democratic registration, 55.836 percent Democratic fegistratiog, and 60.113 percent Democratic 

registration. Id., Ex. O. Finally, District 12 was drawn to exclude precinets with 59.679 percent 

Democratic registration, 61.86 percent Democratic registration, S8. 145 percent Democratic 

| 

registration, 62.324 percent Democratic registration, 60.209 percent Democratic registation, 

56.739 percent Demgcratic registration, 66.22 percent Democratic registration, 57.273 percent 

Demacratic registration, 55.172 percent Democratic registration, and 63,287 percent Democratic 

registration, all in Guilford County. 1d., Ex. N. 

On the North Carolina map, District 12 has an irregular shape and is barely contiguous in 

pasts. Its Southwest corner lies in Mecklenburg County, very clase to the Sauth Carolina barder, 

and includes parts of Charlotte. The District moves North through Rowan County and into 

Iredell County. There it juts West ta pick up parts of the City of Statesville. More than 75 

percent of the Statesville population that iy included in District 12 is African-American, while 

oaly 18.88 percent of the population of Statesville excluded from District 12 is African- 

American. McGee Aff, Ex L. From Smtesville, the District moves East inta Rowan County. 

There it dips to the South te include Salisbury, before turning to the Northeast and entering 

Davidson County and the City of Thomasville. Over 4! percent of the populations of Salisbury 

12  



  

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and Thomasville that are included in District 12 are African-American, while only 15.39 and 

9.55 percent, respectively, of those (hat are excluded from the District are African American. Id. 

The District makes a northwesterly incursion into Forsyth County ta include parts of Winston- 

Salem, where 77.39 percent of the population within District 12 is African-American, and only 

16.06 percent of the population left out is African-American. Id. The District moves to the East 

and narrows dramatically before opening up 2gain fo include the predominantly Africaa- 

American parts of Greensboro, where the District ends. 

Obisclive numerical studies af the compactmess of congressional districts are also 

available. In his report, “Az Bvaluation of North Carolina's 1998 Congressional Districts," 

Professor Gerald R. Webster, ane of the Defendants’ expert witnesses, presents statistical 

analyses of "comparator compactness indicators” for North Carolina's congressional districts 

under the 1997 Plan. In messuring the districts’ dispersion compactness’ and perimeter 

compactness,’ Professor Webster offers two of the "niost commonly recognized and gpplied" 

compactness indicators. Webster, at 13 (citing Bildes & Niemi, Expressive Harms, "Bizarre 

Districts," and Voting Rights: Evaluating Eleetion-Diskict Appearances After Shaw v. Remo, 92 

Mich.L Rev. 423, 571-573, table 6 (1993) (hereinaRec, "Pildes & Niemi"); and see Bush v. Vera, 

517 U.S. 952, —, 116 S. Ct. 194], 1952, 135 L.Ed.2d 248 (1996) (citing Pildes & Niemi 

  

* "Dispersion compactness” measures the geographic "dispersion" of a district. To 
calculate tus a circle is circumscribed around a district. The reported coefficient is the 
proportion of the area of the circumscribed circla which ix also included in the district. This 
measure ranges from 1.0 (most compact) to 0.0 (least compact). Webster, at 14. 

* "Perimeter compactness” is based upan the calculation of the district's perimeter. The 
reparted coefficient fz the proportion of the areq in the diswict relafive to a circle with the same 
perimeter, This measure ranges from 1.0 (most compact) to 0.0 (least compact). Webster, at 14. 
Th equsdes used here is (((4 x IT) x Area of district) + (District's Perimeler2)). Webster, at 
table 3. : 

13 

 



  

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compactness factors as supporting evidence for holding three Texas congressional districts 

unconstitutional). 

In discussing the relative normalcy of various compactness measures, Pildes and Niemi 

suggest that a "low" dispersion compactness measure would be equal to or less than 0.15. Pildes 

& Niemi, at 564. They suggest that a "low" perimeter compactness measure is squal to or less 

than 0.05. Id. North Carolina's Twelfth Congressionel District under the 1997 Plax has e 

dispersion compactness indicator of 0.109 and 4 perimeter compactness indicator of 0.041. 

Webster, at table 3. These figures are much lower than the mean compactness indicators for 

North Carolina's twelve congressional districts under the 1997 Plan, The average dispersion 

CompRsiees indicator for the State is 0.354, and the average perimeter compactness indicator is 

| 0.192. Id, The next lowest dispersion compactness indicator afar District 12 is the 0.206 in the 

Fifth Congressional District, end the next lowest perimeter compactaess indicator is the First 

Congressional District's 0.107. Id.’ 

Thus, it is clear that even after the changes detailed above, the primary characteristic of 

the Twelfth District js its “racial archipelago,” stretching, bending and weaving to pick up 

predominantly African-American regions while avoiding many closer and more obvious regions 

of high Democratic registration, but low African-American population. 

I, The First Copgressiogal District 
  

District 1 is another predominantly Democratic district established by the 1997 Plan. 

Unlike District 12, it is a majority-minority district, based on percentages of the total populatian 

of the District,’ as 50.27 percent ofits total population is African-American, ld, Vol. 1 
  

While 50.27 percent of the total population of District | is African-Americas, only 46.54 percent of the vating age population is Afdcan-Ameriean, based og the 1990 census data. 

14 

 



    

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CHIEF JUDGE BOYLE 

Commentary at 10. District 1 is composed of ten of the 22 counties split in drawing the 

statewide 12 district 1997 Plan. Weber Dec. {16. Half of the twenty counties represented in 

District | are split. Id. Of the ten sub-divided counties asgigned to District 1, four lave parts 

with over 50 persont African-American population, four others have parts with over 40 percent 

African-American population, and two others have parts with aves 30 percent African-Awerican 

population. 1d, I17. 

In each of the ten counties that are split between District | and an adjacent district, the 

percent of the population that is African-American is higher inside the district than it is outside 

the distract, but within the same county. 1d., 119 and Table 2. The disparities are less significant 

than in the county splits involving District I2. Id., Table 2, For erase, where Beaufort 

Counly is split between Districts 1 and 3, 37.7 percent of the tatal population of Beaufort County 

allocated to District | is African-American, while 22.9 percent of the total population of 

Beaufort County assigned ta District 3 1s African<American. 

Similarly, nine of the 13 cities and towns split between District | and its neighboring 

districts are split along racial lines. Id., 722. For example, where the City of New Bera is split 

between District 1 end adjacent District 3, 48.27 percent of the population assigned to District | 

is African-Amencan, while 24.49 Sestect of the New Bem population assigned 10 District 3 is 

African-American. McGee Aff, Ex. L. 

Viewed on the North Carolina map, Diswict 1 is not as irregular ag Dismict 12. In the 

North, it spans 151.2 miles across, from Roxboro, Person County, in the West, to Sunbury, Gates 

County, in the East, Affidavit of Dr. Alfred W. Stuart ("Stuart AfE."); table I, It is shaped 

  

Bartlett Aff, Vol. 1 Commentary at 10, 

15 

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roughly like the state of Florida, although the protrusion to the South fram its “panhandle” is 

only approximately 150 miles long (to Goldsboro, Wayne County, with twa irregularities jutting 

into Jones, Craven, and Beaufort Counties. Cooper Aff, attachment. These irregulanties 

surround the peninsular extension of the Third Congressional District from the Bast, allowing the 

Soeioent from the previous Third Congressional District to retain his residence within the 

boundaries of the same district, and avoiding placing two incumbents in District 1. 

The "comparator compactness indicators" from District 1 are much closer to the North 

Carolina mean compactness indicators than are those from District 12. For cxample, District 1 

has a dispersion compactoess indicator of 0.317 and a perimeter compactness indicator of 0.107. 

Webster, at table 3. This Totton compactness indicator is not siguificantly lower than the 

State's mean Indicator of 0.354, and is higher than the dispetsion compactness indicators of 

Districts 12 (0.109), S (0.292), and 5 (0.206). 1d. It may be nated that Districts § and § are next 

to, and necessarily shaped by, District 12. District 1 hiss a perimeter compactness indicator of 

0.107, which is lower than North Carolina's mean perimeter compactness indicator (0.152), but 

much higher than Pildes and Niemi's suggested "low" perimater corapactness indicator (0.05). 

District 1's perimeter compactness indicator is also much higher than that of District 12 (0.041). 

1d. 

DISCUSSION 

L ApiSisdie Low st Sendunt or Reiss 

The Equal Protection Clause of the United States Constitution provides that no State 

“shall deny 10 any person within its jurisdiction the equal protection of the laws.” U.S. Const. 

  

amend. 14, § 1. The United States Supreme Court explained in Miller v Johnsop, 515 U.S,, at 

$04, 115 8. Ct at 2482, that the central mandate of the Equal Protection Clause "is racial 

16  



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WT Gl) 00 0 BT BE PIV) 

      

5132564158 

seumality in governmental decisionmaking." Application of this mandate clearly prohibits 

purpaseful discrimination between individuals on the basis of race. Shaw v. Reno, 509 U.S. 630, 

642, 113 S. Ct. 2816, 2824, 125 L.Ed.2d 511 (1993) ("Shaw [") (citing Washington v, Davis, 426 

U.S. 229, 239, 96 S. Ct. 2040, 2047, 48 L.Ed.2d 597 (1976). 

  

As the Supreme Court recognized, however, the use of this principle in “electoral 

districting is a most delicate task.” Miller, 515 U.S, at 908, 115 8. Ct., at 2483. Analysis of 

suspect districts must begin from the premige that “[1]aws that explicitly distinguish between 

individuals on raclal grounds fall within the core of [the Equel Protection Clauses] prohibition.” 

Shaw I S09 U.S, at 642, 113 S. Ct, at 2824. Reyond that, however, the Fourteenth 

Amendment's probibjtion “extends not just to explicit racial classifications,” Millar, S1SUS,, at 

905, [15 S. Ct., at 2483, but also to laws, neutral on their face, but "unexplainable on grounds 

other than race,” Arlington Her ts v, Metropolita using Development Corp., 429 U.S. 252, 

266, 97 S. Ct 555, 564, 50 L.Ed2d 450 (1977). 

In challenging the constitutianality of a State's districting plan, the "plaintiff bears the 

burden of proving the race-based motive and may do so either through ‘circumstantial evidence 

of a district's shape aud demographics’ or through ot direct evidence going to legislative 

purpose." Shaw II, SITUS. at, 116 S. Ct. at 1900 (quoting Miller, 515 U.S, at 916, 115 S. 

Ct at 2488). In the final analysis, the plaintiff must show "that race was the predominant factor 

motivating the legislature's devision to place 2 significant mumber of voters within or without 2 

particular district" Id (quoting Miller, 515 U.S, at 916, 115 S. Ct, at 2488). 

Ounce a plaintiff demonstrates by a preponderance of the evidence that race wes the 

predominant factor in redistricting, the applicable standard of review of the new plan is "strict 

scrutiny.” Tous, in Miller the Supreme Court held that strict scrutiny applies when race is the 

17 

 



  

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"predominant" consideration in drawing the district lines such that "the legislature subordinate(s] 

race-neutral districting principles . . . to racial considerations.” 515 U.S,, at 916, 115 S. Ct, at 

2488, Under this standard of review, a State may escape censure while drawing racial 

distinctions only if it is pursuing a "compelling stats interest.” Shaw ll, 517 U.S, at =, 1168S. 

Ct. at 1902, 

However, "the means chosen to accomplish the State's asserted purpose must be 

specifically and narrowly framed to accomplish that purpose.” Wyganty Jackson B d., 

476 U.S. 267, 280, 106 8, Ct. 1842, 1850, 90 L.Ed2d 260 (1986) (opinion of Pawel, J.). As the 

Supreme Court required in Shaw JI, where a State's plan has been found to be a racial 

gerrymander, that Stale must now “show not only that its redistricting plan was in pursuit of 2 

campelling state interest, but alse that its districting legis(ation is narrowly tailored ta achieve 

that compelling interest." S17 US., at —, 116 S. Ct., at 1902. 

We are cognizant af the principle that "redistricting and reapportioning legislative bodies 

is a legislative task which the federal courts should make every effort not to preempt. Wise v. 

Lipscomb, 437 U.S. 535, 539, 98 S. Ct. 2493, 2497, §7 L.Ed2d 411 (1978) (citations omitted), 

"A State should be given the opportunity (0 meke its own redistricting decisions so long as that 

is practically possible and the State chooses to take the opportunity. When it does take the 

opportunity, the discretion ol’ the federal court is limited except to the extent that the plan itself 

Tuns afoul of federal law." Lawvery. Dep't of Jpstice, — U.S. —, —, 117 S. Ct 2186, 2193, 

138 L.Ed2d 669 (1997) (internal citations omitted).’ Thus, when the federal courts declate an 
  “ER, 

‘The dissent charges that we “ignore[] the principles of federalism which require federal 
courts to exarcise restraint,” and alludes to the dangers of “judicial activism,” This isa 
dishabing accusation, as federal court cannot shrink away from the enforcement of the United 
States Constitution and federal Jaw. The standard of equal protection under Jaw established in 

18 

 



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apportionment sahetmne unconstitutional-as the Supreme Court did in Shaw [I-t1s appropriate, 

"whenever practicable, ta afford a reasonable opportunity for the legislature to mest 

constitutional requirements by adopting a substitute measure rather than for the federal court to 

devise and order into effect its ows plan. The new legislative plan, if forthcoming, will then be 

the governing law unless it, too, is challenged and found to violate the Constitution." Wise, 437 

U.S, at 540, 98 S. Ct, ar 2497, 

II e Twelfth Co ional Dist 

As noted above, the final decision of the three-judge panel in Shaw only approved the 

1997 Congressional Redistricting Plan "as an adequate remedy for the specific violation of the 

individual equal protection rights of those plalmifls who successfully challenged the legislature's 

creation of former District 12." Shaw v. Hunt, No, 92-202-CIV-5-BR, at 8 (E.D.N.C. Sept. 12, 

1997). Titus panel must thus decide whether the 1997 Plan’s Twelfth District violates the equal 

protection qights of the Plaintiffs who live within the district and challenge its constitutionality. 

  

the laner half of the 20 century is the direct result of federal courts’ defense of constitutional 
principles in the face of state resistence. We would point our distinguished colleague to the 
wards of the late Judge Frank Johnson: 

It must be emphasized that, when governmental institutions fail to make ... 
judgment and decisions in 8 manner which comports with the constitution, federal 
courts have a duty ta remedy the violation. In summary, itis my belief that the 
judicial activism which has generated so much criticism is, in most cases, fot 
activism at ell. Courts do not relish making such hard decisiona and certainly do 
not encourage litigation on social and political problems, 

But the federal judiciary in this country has the paramount and the 
continuing duty ta uphold the law, When a "case or controversy" iz properly 
presented, the court may not shirk its sworn respansibility to uphold the 
Constitution and laws of the United States, The courts are bound to take 
jurisdiction and decide the issues, even though those decisions result in criticism. 
The basic strength of the federal judiciary has beeq, and continues to be, its 
independence fram political and social pressures. 

Frank M. Johnson, Jr., Judicial Activism is a Duty-Not an Intrusion, VIEWS FROM THE BENCH: 
THE JUDICIARY AND CONSTITUTIONAL POLITICS 279, 283-4 (1985). 

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In holding that District 12 under the 1992 Plan was an unconstitutional racial 

gerrymander, the Supreme Court in Shaw J] noted, “(n]o one looking at District 12 could 

reasonzhly suggest that the district contains a ‘geographically compact’ population of any race.” 

S17 US., at—, 116 S. Ct, at 1906. The Shaw II Court thus struc the ald District 12 as 

unconstitutional as a matter of law, In redrawing North Carolina's congressional districts in 

1997 the General Assembly was, of course, aware that District 12 under the 1992 Plan had been 

declared unconstitutional; curing the constitutional deficiencies was one of the legislature's 

declared goals for the redistricting process. Cooper AfT. 15, &, 10, 14. 

Defendants now argue that the changes in District 12 between the 1592 and 1997 Plans 

are dramatic enough to cure it of its constitutional defects. They point to the fact that the new 

District 12 1 lost nearly one-third (3 1.6 percent) of the population from the 1992 district and 

nearly three-fifths (58.4 percent) of the land. These numbers neither advance the Defendants’ 

argument not end the Court's inquiry. As Defendants themselves note, the Court's role is limited 

to determining "whether the proffered remedial plan is legally unacceptable becausa it violates 

anew constitutional or statutory voting rights—that is, whether it fails to meet the same standards 

applicable to an original challenge of a legislative plan in place." McGhee v. Granville County, 
  

860 F.2d 110, 115 (4® Cir. 1988) (citing Upham v. Sermon, 456 U.S. 37, 42, 102 S. Ct. 1518, 

1521, 71 LE42d 725 (1982)). A comparison of the 1992 District 12 and the present District is 

af limited value here. The {ssue in this case is whether District 12 in the 1997 Plan violates the 

equal protection rights of the voters tesiding within it, 

In Shaw 1, the Supreme Court described the 1992 Plan's District 12 as "unusually 

shaped...approximately 160 miles long and, for much of its length, no wider than the [Interstate]- 

BI corridar. It winds in snake.like fashion through tobacco country, financial centers, and 

20 

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manufacturing areas uatil it gobbles in enough enclaves of black neighborhoods.” 509 U.S, at 

635-636, 113 S. Ct, at 2820-282] (internal quotations omitted). The 1997 Plan’s District 12 is 

similar; it is "unusually shaped.” it is “snake-like*" and it "gobbles in" African-American 

‘population centers. The evidence establishes that although its length has been shortened by 

approximately 65 miles, it still winds from Charlotte to Greensboro along the Interstate-83 

corridor, detouring to envelop heavily African-American portions af cities such 2s Statesville, 

Salisbury, and Winston-Salem. It also connects communities not joined in 8 congressional 

district, other thes in the unconstitutional 1992 Plan, since the whole of Western North Carolina 

was one district, nearly two hundred years ago. 

As discussed above, where cities and counties are gplit between the Twelfth District and 

neighboring districts, the splits invariably occur along racial, rather than political, lines—the 

parts of the divided cities and counties having a higher proportion of African-Americans are 

always included in the Twelfth. Defendants argue that the Twelfth was drawn not with race, but 

rather politica and partisanship in mind. They have described the District as a "Democratic 

island in a Republican ses," and presented expert evidence that political identification was the 

predominant factor determining the border of District 12. Affidavit of David W. Peterson 

("Peterson Aff"). As the uncontraverted evidence demonstrates, however, the legislators 

excluded many heavily-Demacratic precincts from District 12, even when those precincts 

immediately border the Twelfth and would have established a far more compact district. The 

oaly clear thread woven throughout the districting process is that the barder of the Twelfth 

district meanders to include nearly all of the precincts with African-American populadon 

proportions of over forty percent which lie between Charlotte and Greensboro, inclusive, 

As noted above, objective measures of the compactness of’ District 12 under the 1997 

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Plan reveal that it is sill the most geographically scattered of North Carolina's congressional 

districts. When compared to other previously challenged and reconstituted congressional 

districts in North Carolina, Florida, Georgia, Illinois, end Texas, District 12 does not fare well. 

The District's dispersion and perimeter compactness indicators (0.109 and 0.041, respectively) 

are lower than those values for North Carolina's District 1 (0.317 and 0.107 under the 1997 

Plan). Similarly, the District suffers in comparison to Flatida's District 3 (0.136 and 0.05), 

Georgia's District 2 (0.541 and 0.411) and District 11 (0.444 and 0.259), Illinois’ District 4 

(0.193 8nd 0.026), 2nd Texas Distcict 18 (0.335 and 0.151), District 25 (0.384 and 0.178), and 

District 30 (0.383 and 0.180). | 

Additionally, Plaintiffs’ expert, Dr. Weber, showed ime and again flow race trumped 

party uffiliation in the construction of the 12% District and how political explanations ufterly 

failed to explain the compasition of the district. (Trial Transcript at 162-3, 204-5, 221, 251, 262, 

288. OF particular note is Dr. Weber's contention that & much more compact, solidly Demosrafic 

12% District could bave been created had race not predominated over traditional political 

considerations in the redistricting process. (Trial Transcript at 220-1) Additionally, Dr. Weber 

showed that, without fail, Democratic districts adjacent to District 12 yielded their minonty areas 

to that district, retaining white Democratic precincts. (Trial Transcript at 255-6). This testimony 

served to undermine Defendants’ conteatior that race was meroly a factor in creating the 1997 

Plan's 12” District, and that a desire to place high-performance Democratic areas (which heppen 

10 contain minority populations) within Democratic dis tricts could explain the construction of 

the 12". 

The conclusion that race predominated was further balstered by Senator Cooper's 

allusion to 2 need for "racial and partisan balance," cited above. The senator's contention that 

22  



   
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although he used the term "partisan balance" to refer ta the maintenance of a six-s1x Demacrat- 

Republican split in the congressional delegation, he did not mean the serm "racial balance” to 

refer to the maintenance of a ten-twa balance between whites and African Americans 1s simply 

pot credible. te rial Transcript at 429-30) 

Dr. Weber, who has testified ag an expert in relists cases inn Loursiang, Texas, 

Georgia, Virginiz and Florida, also presented a convinclug critique of the methodology used by 

Defendants’ expert witness, Dr. Peterson. (Trial Transcript at 145) Dr. Weber characterized Dr. 

Peterson's boundary segment analysis as non-traditional, creating "erroneous results dy 

“ignoring the core" of each district in question, (Trial Transcript at 222-4) In summary, Dr. 

Weber found that Dr. Peterson's analysis and report “has not been approprietely done," and was 

therefore "unreliable" and not relevant. (Trial Transcript at 232) 

Finally, the Coaper-Cohen email, discussed above, clearly demonstrates that the chief 

architects of the 1997 Plan had evalved 2 methodology for segregating voters by race, and that 

they had applied this method to the 12" District. The Cooper-Cohen email refers specifically ta 

the categorization of sections of Greensboro as "Black," and a scheme by which this fection was 

added to the 12” District, creating a need to "take about 60,000" other citizens out. (Exhibit 58) 

It is also relevent 2s evidence of the means by which the 1997 Plan's racial gerrymandering 

could be achioved with scicatific precision, as the precise racial composition of another district 

(the First) Is discussed at length, along with plans to “improve” thar district by "boost(ing] the 

minority percentage." (Exhibit 58) 

The computer system used by the Sate hes the capacity to identify and apportion wars 

based on race, and to determine the exact racial make-up of each district. The Cohen-Cooper 

 



  

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email reveals that exact racial percentages were used when constructing districts.’ Given that the 

Suprema Court struck down the [992 Plan's 12" District, the clear inference here is that a motive 

existed to compose a new 12" District with just under a majority minority tn order for it not to 

present a prima facie racial gerrymander. In fact, Senator Cooper argued before the legislature 

that the Shaw test for constitutionality would not be triggered because the 12° District was not e 

majority minority district. (Trial Transcript at 440-1) But using a camputer to achieve a district 

that is just under 50% minority is no less 2 predominant use of race tha using it to achieve a 

district that is just over 50% minority. 

Based ou fhe extensive direct and circumstantial evidence presented at trial, the Court 

finds as a matter of fact that the Genera! Assembly, in redistricting, used criteria with respect to 

the Twelfth District thas are facially race driven. [tis clear that the Twelfth District was drawn 

to collect precinets with high racial identification rather than political identification. 

Additionally, the evidence demonstrates that precincts with higher partisan representation (that 

15, mare heavily Democratic precincts) were bypassed in the drawing of District 12 in favor of 

precincts with a higher African-American population. The legislature csehewed traditional 

districting eritena such as contiguity, geographical integrity, community of interest, and 

compactness in redrawing the District us part of the 1997 Plan. Instead, the General Assembly 

utilized race as the predominant factor in drawing the District’ 

  

"Senator Coaper claimed tat the final percentage composition of District 12 was sheer 
happenstance. (T nal Transcript at 427-8) The explicit discussion of precise percentages in the 
email belies this characterizarion, 

? The Supreme Court has indicated that, when drawing congressional districts, race may 
not be used as a proxy for political characteristics. Vera v. Bush, S17 U.S, 952, —, 116 S. Ct. 
1941, 1956, 135 L.Ed 2d 248 (1596). : : 

  

24 

  

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This Court finds that, in contrast ta the state's claims regarding the 1% District, no 

evidence of a compelling state interest in utilizing race to create the new 12™ District has been 

presented. Further, even if such an interest did exist, the 12° District is not namowly tailored and 

therefore cannot survive the prescribed “strict scrutiny.” The 1997 Plan's District 12 is an 

impermissible and unconstitutional racial gerrymander in violation of the Equal Protection 

Clause. 

To remedy these constitution deficiencies, the North Carolina legislature must redistrict 

the 1997 Plan in such a way that it avoids the deprivation of the voters’ equal protection rights 

not to be classified on the basis of race, This mandate of the Court leaves the General Assembly 

free ta use other, proper factors in redistricting the 1997 Plan. The legislaturs may cansider 

traditional districting criteria, such as incurmbency considerations, to the extent consistent with 

curing the constitutional defects. Sea Shaw II, S17 U.S., at —, 116 S. Ct., at 1901 (describing 

"race-mreutral, traditional distrioling criteria"), 4 

LI,  Eirst Congressional District 

The three-judge panel in Shaw never ruled on the constitutionality of the 1992 Plan's 

First Congressional District Standing problems on the part of the Shaw plaintiffs forced that 

Court to narrow its focus to adjudicate only the issuss raised regarding the Twelfth District. A 

comparison af the First and Twelfth Districts under the 1992 Plan reveals, however, that they are 

similarly egregious in their construction and that the First District would certainly have been 

  

1°Qur distinguished colleague's dissent treats the standing of Plaintiff Linville at some 
leagth Defendants moved to dismiss him from the instant suit, arguing that he did not live 
within the 1997 Plan's 12* District. This motion was denled (tial Trial Transcript at 327. As 
there ig standing an bebalf of 3 plaintiff or plaintiffs with respect ta each of the challenged 
districts, Plaintiff Linville's standing is moot as to this Court's ability to reach a decision in the 
instant case. Thus, we decline to elaborate on the standing issue. 

23 

2S. S55 

 



  

MAR B88 2888 18:81 AM bar 
Cy 7 FRENAACP LEGAL DEF FUMNDGSZ2 1312 TO 12122182852, 784 

v ve - his WR. SP © FAA Va SI a Bod Poa Ae HARLK Yr due 32 GUL 

ph Jae 17:58 RKS OFFICE 91985641638  P. 27/31 
cH JUDGE BOYLE Lig 

Mar 07 00 04:53p 

subject wo the same finding that it was not narrowly tailored Both were majority-minority 

districts under the 1992 Plan, and neither evidenced even minimal geographicel compactness. 

The 1997 Plan's First District, once again presents this Court with 2 majority-minority 

district, this me containing a population that is 50.27 percent African-American, as opposed to 

the Twelfth District's 46.67 percent. The First District is, Sawer. far more compact than the 

Twelfth and itg shape is less irregular, as we have seen above, 

_ This Court fmds as a matter of fact that, under the 1992 Plan, the First District was not 

narrowly tailored and therefore that district was in violation of the Constitution. The evidence 

presented by the Defendants does not dispute this finding. 

The statements of several key players in the 1997 redistricting process clearly show that, 

in an eftort to gain pre-clearence under the Section 2 of the Voting Rights Act, 42 U.S.C. § 1973, 

they allowed race to predominate in the creation of the 1% Dislrict. The Cohen-Cooper email is 

ane such clear example, specifically referencing the desire to "boost the minority percentage in 

the first district” to create an “improved” district. The email exposes a process in which voters 

were categarized by race, then shifted in and out of the 1¢ District by a computer program until a 

precise percentage of minority voters [n the district was achieved. No other credible explanation 

bas been offered. 

The fact that race predominated ia the construction of the 1" District is not surprising, 

The legislators faced the difficult task of remedying the unconstitutional aspects of the 1992 

Plan' y District while complying with the mandates of the Voting Rights Act, discussed below. 

Indead, Senatar Cooper ucknowledged thar he felt he had to have over 50% minarity 

representation in the Ficst District, (Trial Transcript at 440) This admission reveals that te 

racial composition of the district was seen as a mandate, 2 necessity, 

26 

  

P.25-55



MAR B88 2888 18:81 AM FR NAACP LEGAL DEF FIUNDBBZ 1312 TO 
Ul UT 2000 19:0) FAX 9100Q67.34953 RUDOLF MAHER WIDENHUL Sk 

MAR-B7-2088 17:51 KS OFFICE 9198564168 FP.28/31 

Mar Q7 00 04:S56p CHIEF JUDGE BOYLE 
P.4% 

Thus, we further find that, in its 1997 Plan, the State continued to use race as the 

predominant factor in creating the majority-minority First District, and thus strict scrutiny must 

apply. This does not end owr inquiry, however, Defendants may show that the district was 

parrowly tailored to achieve 2 compelling government interest. 

Section 2 of the Voting Rights Act provides that "no voting qualification or prerequisite 

to voting or standard, practice, or procedure shall be imposed or applied by any State ..ina 

manner which results in a denial or abrddgement of the right of any citizen of the United States to 

vote on account of race or calor, .... * 42 U.S.C. § 1973(z) (L988). Congress instructed the 

courts, when determining whether a voting standard, practice, or procedure violates this 

prohibiticg, to examine "the tatlity of the circumstances" to ascertain whether “the political 

processes leadmg to nomination or election" ate equelly open to citizens of all races. Id. § 

1573(b). Courts may also consider "[t]he extent 10 which members of a protected class have been 

elected to office," but the Act expressly states it does not establish "a right to have members of 2 

protected class elected in numbers equal to their proportion in the population.” Id. 

In Thomburg v. Gingles, the Supreme Court first examined the 1982 amendments to the 

Act. 478 U.S. 30, 34; 106 S.Ct. 2752, 2758; 92 L.Ed.2d 25 (1986). The Court found that the 

1982 amendments no longer required a showing of intentional discrimination in order prove a 

violation of the Act. Id, at 35, 106 S.Ct. ar 2758. The Court idegtified the following "necessary 

preconditions” to 2 § 2 claim: 

"First, the minority group must be able to demonstrate that it is sufficiently large and 

geographically compact to constjmte a majority in a single-member district... Second, the 

minority group must be able to show that it is politically cohesive... Third, the minarity must be 

able to demonstrate that the white majority votes sufficiently as a bloc to enable it—in the 

27  



  

MAR BS 2880 18:81. AM FR NAACP LEGAL DEF FUNDER? 1312 TO 121221320" 

0) 07-2000 18:0) FAX 9198867483 RUDOLF MAHER WIDENHOUSE A gos 

MAR-B7-2088 17:51 ERKS OFFICE 

mn
 

©
 

ul
 

mn
 

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918856416@ P.25/21 
r we 

goo Q04:S5S6p CHIEF JUDGE BOYLE 

. absence of special circumstances, such as the minority candidate running unopposed— usually to 

defeat the minarity's prefarred candidate,” Giggles, 478 U.S. at 50-51, 106 §.Ct. at 2766-67 

(footnotes and internal citations emitted). Once these preconditions are met, a court must 

consider the factors identified in the Senate Report accompanying the 1982 amendments. 1d. at 

48,106 S.Ct at 2765." 

Defendants presented evidetice at trig! to shaw that there was a strong basis for the 

General Assembly to have believed, at the time of the 1997 Plan's drafting, that the three Gingles 

preconditions and several of the factors set forth in the Senate Report existed in North Carolina. 

Specifically, the Defendants presented evidence that the African-American population in the 

area encompussed by Diswicr | was and is sufficiently large and geographically dompitt to 

constitute a majority in a congressional district. Additonally, Defendants contend, and Plaintiffs 

have stipulated far the purposes of this trial, that the Anti amerin: population is politically 

cohesive. Further, Defendants contend, and Plaintiffs have stipulated for the purposes of this 

trial, that the white majority votes sufficiently ag a block to often enable it to defeat the 

minority's preferred candidate, Finally, all parties agree that, for many decades, African- 

Americans in North Carolina were victims of racial discrimination, and that a substantial 

  

% Those factors are: (1) the extant of any history of official discrimination in the state or palitical 
subdivision thet 1ouched the right of the members of the mineriry group to register, to vote, or otherwise la 
particrpale in the demosratic process; (2) the extent to which voting in the elections ofthe state or political 
subdivision . racially polarized; (3) the extent ts which the tate or pelitical subdivision has used unasually large 
election dintricts, majority vote requirements, ann-single shot provisions, or other voting practices or procedures 
that ray enhance the opporwruty for discrimination aginst the minority group; (4) if there is a candida shating 
process, whether tae members of the minority group have been denied access to tat process: (5) the exment to which members of the minority group ia the stata or political subdivision bear the effects of discrimination in such areus gs 
education, employment and health, which hinder (Beir ability 10 participate effectively (a the poligenl proccss; (6) 
whether political campaigns have been characterized by overt or subtle racial appeals; (7) the cxtent to which 
members of the munsaily group ave been clected to public offlcs in the jurisdicdor. SenRep. No. 417, 97th Cang., 
2d Sess. 28-29 (1982), reprinted {a 1982 U.S.C.C.AN. 177, 206-07, This list of factors, however, “is neither 
wonmprehensive nor exclusive,” Gingles, 478 U.S, at 45, 106 S.Ct, at 2763. 

28 

 



  

MAR B88 2888 18:81 AM FR NRARCP LEGAL DEF FUNDESB2 1312 TO 12122132852,784 P.23-55 
SUBU JP iva FAL FJLBH0: BHI BUM bl DARLIN ivi vO Ne Rv 

MAR-G7-2088 17:52 ®- OFF ICE 3 9196564168 P.38/31 
CHIEF JUDGE BOYLE 

Mar 07 00 04:S6Ep 

ruajority of the Sure’s African-American population is still ata disadvantage in comparison to 

white citizens with respect ta income, housing, education and health, 

This Court finds that Defendants have presented sufficient evidence to establish that the 

State Legislature of North Carolina did have a compelling reason to address race in the 

construction of the First District under the 1997 Plan. That compelling reason was the need to 

satisfy Section 2 of the Voting Rights Act in order to ensure that the State's African-American 

population have equal access to the political process. | 

Further, this Court finds that the specific composition of the First District's borders, while 

predqminated by race, was narrowly tailored to meet the Section 2 requirements while also 

addressing other traditional, political considerations, including the desire fo protect [ncumbency, 

both of 2 Democrat in the First District aud a Republican in the Third Disgict, The splitting of 

counties and lack of compactness display the interplay between these considerations: the 

borders were drawn to avoid putting twa incumbents wn a single district; the State Legislature 

intended to exclude as much of the First State Senatarial District from the 1397 Plan's 1™ District 

as possible, resulting in modifications that forced the district's borders south and west. While 

race predonunated, the legislature resisted the temptation to create 2 district reminiscent of the 

1992 Plan's 1* District, which reflected little or no effort to achieve 2 narrow tzilaring. 

Thus, this Court finds that the 1997 Plan's I District meets the requisite standard of strict 

scrutiny. Race, while tho predominant factor in its composition, was not impermissibly used in 

establishing its borders. There was a compelling state interest in obtaining pre-clearance under 

Section 2 of the Voting Rights Act, aud the 1” District was narrowly tailored to meet this 

interest. Thus we find thet the 1997 Plan's |* District does not present an unconstitutional racial 

gerrymander. 

 



   MRR 28 22808 18:81 AM FR NARCP LEGAL DEF FUNDERZ 1312 TO 12122182852. 784 P.38-55 
UI UF JU0U Ju. Ud PAL SlIBHG/ 4H0J BLUULY NAHEK BLlUrMULSL wl UuglL 

Shihan al KS Une CE | 9138564160 P,21.31 
Mar 07 00 04:56p CHIE™ JUDGE BOYLE Pos 

CONCLUSION 

For the reasons discussed above, this Court finds that the 1997 Plan's Twelfth District 

contmues to be uacanstitutional as presented. Defendants are enjoined from using the 

unconstitutional District 12 in fire elections. The 1997 Plan's First District does not violate 

the Constitution and may thus be used fn futurs elections. Defendants will bave an opportunity 

ta correct the constitutional defects in the 1997 Congressional Redistricting Plan stemming from 

the 12* District, in default of which the Court must undertaice the task. 

SO ORDERED. 
TA 

This 2 day of March, 2000. 

TERRENCE W. BOYLE 
Chief United States District Judge 
RICHARD L. VOORHEES 
United States Distyict Judge 

By: Ve irumnre/ WW. fs 
TERRENCE W. ROYLE 
CHIEF UNTTED STATES DISTRICT JVOGE 

  

  

30 

TOTAL. P.31 

 



J \ NRW SNE ITRYYE PY AN PARE PITY SW A be “ 4 by } aN 2 4 Nain 4) . 4 ~~ 
2000 2:81.81 BR Ze ete 9138564162  F.g@2 27 Mar 07 00 04:57p “@& JUDGE BOYLE rr lL Satu p-d 

IN THE UNITED STATES DISTRICT CQURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA 
EASTERN DIVISION 

No. 4:96-CV-104-BO(3) 
MARTIN CROMARTIE, of al. 

Plaintiffs, 

Vv, 

JAMES B. HUNT, JR, in his official 
Capacity &s Governor the State of North 
Carolina, ez al, : 

Defendants, 

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THORNBURG, District Judge, sitting by designation as Circuit fudge, concurring in part and dissenting in part: 

I join the majority in =oncluding that the First Congressional district is constitutionally 
drawn, but respectfully dissent from the reasoning of the majority in reaching that conclusion. | 
dissent from the majority opinion finding the Twelfth Congressional district to be an 
uncenstituional racial gerrymander, [ also write to address the jssue of Ronald Linville’s ripht 
to remain a party plaintiff in this action, 

I. BACKGROUND 
In early 1997, the North Carolina Genera! Assembly, for the third time in the decade, 

undertook the responsibility of redrawing the boundar; ¢s of Narth Caralina’a congressional 
distriets.” Operating under a court imposed deadline of April 1997 to redraw congressional 

      

"* The General Assembly redrew the districts for the fourth time in 1998 pursuant to this Court's order, und now wil] be required to do so for the fifth time In early 2000. 

I  



1312 TO 12122132852,784  P.32,55 
ah 

AM FR NRRCP LEGAL DEF FUNDBBZ2 MAR B8 20688 18:81 3. NRRL 
Udo - 2000 LY. ld rds YLUd0 4330 J BUYLr Manes Wauchauloo 

Mar 07 00 04:57p cr JUDGE BOYLE 3198554160  P.@3.27 
B.S 

district it vi strict boundaries, the politically divided General Assembly faced the task of quickly reaching g 
consensus on the divisive and mherently political issues involved, In addition tg the traditional] 
constituency concerns, the pull of party [oyalty, incumbeney issues, special Interests, and turf 

federal court system, & Justice Department which from pas! experience was willing to withhold 
preclearance under Section $ of the Voting Rights Act, 42 U.S.C. § 1973¢, and the ever present 
threat of litigation under Section 2 of the same Act. In addition, able private litigants on both 
sides of the issue stood ready to sue the State of North Carolina in the event that racial molives 
controlled the Process, or in the event that the process was not racially fair. From this cauldron 

"of conflicting agendas and influences, the majority concludes that the predominant molvating 
factor of the 170 legislators in the General Assembly as they drew the redlsciofing plans for tke 
First and Twelfth Districts was race. This is a Particularly disturbing ror: lesion under the 
history, the facts, and the Jaw of this case. 

That the General Assembly was not completely paralyzed by the demanding task it faced 
is 2 testament to the efforts of the legislators themselves, and particularly to the committee 
chainien who ecafted z Plan that would pass bath houses. Central to the Genera] Assembly's 
motvation was th was the desire ot to forfeit the responsibility of drawing constitutions] districts to 

wauld be absurd because race loomed as the reason why the General Assembly had to redraw 
distri istricts In the first place, Bur, the 1992 Plan is not the plan being considered by this Court. The 
conelusi 

Aelsion that racial motivations lmpermissibly predominated, in a process where 

2  



  

AL DEF FUNDBB2 1312 TO 12122132832,784 P.33/55 
ga 2 BBB 18:82 AM FR MNRRACP LEG 

[¥] NEYRY] -ediaind AN MLIU UY, DIU i Ve Wo ho Yi Xam dN, lm dun Vb oa y 4 4 

® 8198564168 - 
Mar 07 0Q 04:57p A - JUDGE BOYLE ; ; Piearay 

p.10 

ah es onsciousness of race is not prohibited fails to evaluate Plaintiffs burden of proof and 
insufficient] 1ently credits the plain and direct testimony of the two state legislators who were the 
driving force behind the 1997 congressional redistricting plan, 

IL. JUDICIAL, DEFERENCE 
The Constitution leaves wilh the States primary responsibility for apportionment of their 

federal congressional districts. U.S. Constitution, Article 1, § 2, as amended by Amendment 
XIV §2. “We $3y once again what has been said of many occasions: reapportionment is 
primanly the duty end respoasibility of the State through ifs legislature or other body, rather than 
of a federal court.” Chapman v, Meter, 420 US. 1, 27 (1975) (citln 8 Reynolds v. Sims, 377 US. 
533, 586 (1964)) (other citations omitted), In the matter of redistacling, courts owe i 
deference to the legislature, which is tulfllling “the mast vital of local functions™ and is entrusted 
with the “discretion to exercise the political judgment necessary to balance competing interests.” 
Miller v. Johnson, 515 U.S, 300, 915 (1995). The Court must presume the legislature acted in 
good faith absent a sufficient showing to the contrary. Id. Consequently, this Court must grant 
North Carolina’s Generg] Assembly substantial deference concerning its decisions related to the 
1997 redistricting plan. In deciding this case we should avoid the temptation to legislate for the 
General A 

) 
ssetbly. Id, Under the facts of this case and the Supreme Court’s decisions, judicial 

    

630, 646 (1993) (Shaw I), 

 



1312 TO 12122152852, 704 P.34,55 
CIRIRY 

MAR B8 2686808 18:82 AM FR NRRACP LEGAL DEF FLUNDESZ2 
ICU aad LY UG PAN MLYUG BS ANLPULE NARLK MN LIULMNHUL DE 

: 9198564168 p ~~ Mar 07 O00 D4:58p J. JUDGE BOYLE gress .@527 

p.1l1    
“uphald tir j 

phald the Constitution and laws of the United States,” Majority Opinion, at 18-19, n.7 They 
ignore, how 1 ) 1 fyi ; : a il 

Q ever, Judge Johnson's qualifying words: “(It is] when governmental institutions Bj 
tomake. . .j sions i 

©... Judgments aad decisions in 3 manner which comports with the constitution (that) 

decision in the frst place. 

IL. STANDARD OF REVIEW 
Siriet scrutiny should not be applied to the decision of N orth Cerolina’s General 

  

Assembly merely becayse redistricting wag performed with cansciousness of race. See nl 
skpra. As previously observed, tha Voting Rights Act dictates that race may not bs ignored, 
See e.g, Johnson v, Grandy, 512 U.S. 997 (1994); Holder v. Hall, 512 U.S. 874 (1994); 

| 

3 
Voinoviek v. Oullter, 507 U.S. 146 (1993). For strict Scrutiny to apply, the burden is on the 
Plaintit¥s to sho “« 0 stats w that other, legitimate districting principles were “aubordinated’ to race” j e 

yn 

through “more dmrect ey | e Cc 1 
| IV 

». 

€) 

the Supreme Court recognized certain [actors 5 (egitmate disme ne ponciples Qc uding bu | 
1 El i 1 } fr ep 1p . i 1 L 9 

5 defined by actual 1 ri 
Y shared interests. Id. Incumbency Protection, at least in the limited form of 

4 

 



131270 12122192852. 784  P.35,/58% 
SRY 

MAR ©8 2888 18:82 AM FR NARACP LEGAL DEF FUNDBBZ2 
oy ved CRIA TRY LO My 1 dha Dh DN ATW -— Adu LE RAGEN MAL ND. DL 3158554150 b a 

.ge27 

P- 

   

  

“avoiding contests between incumbent(s),” has also been recognized as a legitimate fate goal 
Bush, at 964 (citations omitted). Likewise, the Supreme Court has repeatedly held that states 
"may engage im constinrtional political gerrymandering, even if (t so happens that the most loyal 
Democrats happen to be black Democrate and even if the State is conscious of that fact." Hunt 
v. Cr ? ; omartie, 526 U.S. 54], 1198. Ct. 1545, 1551 (1999) (emphasis added). 

party preference, 

Id Only wh ] it Y where race predominates over legitimate districting principles will strict scrutiny apply 
to a State’s redistricting decision. 

The burden of Proving that racial mafives predominated over legitimate districting 
principles is ! 1s dj l 

p bot easily met. This difficulty is due in part to the inherent natyra of any legislative 
decision w i L Bere numerous motives and influences are at work. Concurring in the Miller decisi er decision, 
Justice O° 

] 
Caninor further clarified the TEOraus nature of the Plaintiffs’ burden: 

[unders 
| 

1 a or ashen standard the Court adopts . . . to be 2 demanding axe beet ny, 2 plaintiff must show that the State has relied A ope of customary and freditional districting practices Pr ol Be Sot sowie i achieve Shaw ’r basic ob jective of Itymandenng subject to meaningful judi; Judicjal 

Miller, 515 U.S. -S. at 928-29 (cmphasis added). See a/so, Quilter v, Voinovich, 981 F Supp 
1032, 1044 (ND. Ok3 

4 

(N 0 1937) (“We therefore follow Justice O'Connor's lead In applyin demanding thresh 

1} 

§ threshold that allows stateg some degree of latitude to consider pace jg drawi wg districts”), ofr ) ef°d, 523 U.S. 1043 (1998). As a result of this high threshold, a State which doeg 

S 

 



2s 78¢< P.36-/35 MAR B88 28688 18:82 RAM FR MNRRCP LEGAL DEF FUNDBBZ 131 122132852, 704 
Ey dD Vana Qa NEY DL Ey Woe AW [SE 1) BPR YP RYAN aut ly Js ' ‘ a » - or Co Nt PIS ¥ “eRKks USE ICE 9198564168 P.@7.,27 

Mar 07 OQ 04:58p 9. JUDGE BOYLE eT ee p-13 

strict scrutiny. Bush, 517 U.S. at 958. Even a State's decision to intentionally create a 
minority-majority district wil] Rat necessarily be subject to ptrict scrutiny, Id, 

In applying this high threshold standard to the case at hand, it is this Court's 
responsibility to closely examine al] of the evidence to determine whether by 2 preponderance of 
the evidence the North Carolina General Assembly substantially disregarded legitimate 
districting principles, including Incumbency protection and political motivations, and 

evaluated separately to determine whether strict scrutiny will apply to that district. In situations 
where “it is clear that face was not the only factor that motivated the 
district lines,” 

Plan io place,” McGhee V. Granville County, N.C., 860 F.2d 110, 115 (4 Ci. 1988) (citing 
456 U.S. 37, 42 (1982)). Nevertheless, the majarity makes reference to the “unconstitutiona]” 1592 P| 

Upham v. Seamon, 

a4 in criticizing bath the First and Twelfth Districts under the 1997  



12122182852, 784 P.372,55 FLINDERZ 1312 TO 
WY 

MAR G8 2000 10:82 AM FR NAACP LEGAL DEF wd 
fo - , Lm it Bale Te a Nwaitviad MADLNKA Madd Ny BE nd “ERAS UF ILE 

9158564162 F.egs,27 Mar U7 0OO0 04:5Bp EF JUDGE BOYLE p.14 

Plan. This criticism essenually mirrors the “footprint” argument advanced by Plaintiffs, and 
therefore is equally flawed, 

Plamtiffs contend that any district which is based on, the “footprint” of a prior 
uncoastitutional district Ig inherently invalid. This Suggest that the legislature mut begin vith 
a completely clean slate in order to wipe away the vestiges of prior unconstitutional districts. 
Thus, the North Carolina General Assembly could not use the unconstitutional 1992 Plan as the 
beginning point for cresting the 1997 Plan. However, given that the task of the General 
Assembly in 1997 was to cageet the defects of the 1992 plan, it should be permissible to use the 
1992 Plan as the starting point for creating a constitutions] plan, Further, it would be illogical ta 
argue that the unconstitutional aspects of a decision made by legislators in 1952 somehow taints 
the actions of a completely diffrent legislative body in 1997, Most importantly, requiring a 
legislature eo star( completely from scratch makes Weir task nearly impassible because 
congressional incumbents and state legislators will invariably demand the preservation of a 
much of the geographic core of districts as possible, 2 political reality explained in testimony at 
the trial." Indeed, the undersigned can think of no reasop why a legislature may not simply 
address the offensive aspects of an unconstitutional district, cure those defests, and thereby 
Create a constitntional district. 

      EE ————— 

" Indeed, Senator B. 
that he did not thi 

wish to preserve gs long as 279-80, 8 and decades of study of redistricting” J, at  



  

121221928952, 784 P.38-55 MAR B88 20888 18:82 AM FR NRRCP LEGAL DEF FUNDBBZ2 1312 TO 
- - Ar 3 . a eam “oa Es ey apt Wa SX ELEN LISTE OWT 4 2 le J of) oy i) HU 

io: 9138564158  P.g9/27 
Mar 07 00 Q4:SS9p EF JUDGE BOYLE Pp.15 

A. The Twelfth Congressional District 

   

  

demonstrates that polin political concerng Such as existing constituents, incumbency, voter performance, commanpali L 

| 

nality of 1nlerests, and contiguity, not racial motivations dominated the process surrounds unding the creatiog and adoption of the 1997 redistricting plan. | 

Crnviconment where such decisions occur 

8 

 



   
MAR 08 2008 10:83 AM FR NARCP LEGAL DEF FUNDEBZ 1312 To 12122132852, 784 P.33/55 
IU JUG LPIUE LAL YLYY0 AY RLDULE MAHLK WiDENHOUSE GUdl 

MAR-@7-22@@ 1E:88 ERKS OFFICE 2198564168 F.18s27 

CHIEF JUDGE BOYLE p.16 

Consequently, they set out tg design a plan which, in addition to addressing the constitutional 
deficiencies of past plans, would protect incumbents and thereby maintain the then existing 6-6 

© parusan split amongst North Carolinas congressional delegation. Id, at 475, lines 13-23; at 
338, lines 1-7. Because both the First and Twelfth Districts had Democrat incumbents, agd 
maintaining the 6-6 split was viewed as imperative, preserving a strong Democratic Twelfth 
District which protected incumbent Me] Watts’ political hase was absolutely necessary. 
Affidavit of Roy A. Cooper, II, filed March 2, 1998, at ¢ 10. Iy creating such a district, 
common sense as well as political experience dictated ascertaining the strongest voter- 
performing Democratic precincts in the whan Piedmant Cregoent. That many of those strong 
Democratic performing precincts were majority African-American, and that the General 
Assombly leaders were aware af thet fact, is not a constitutional violation.’® Those precincts 
were included in the Twelfth District based primarily upon their Democratic performance, Th 
their racial makeup.” North Carolina’s legislative leaders have openly admitted to being ake 
of the race issue, w being conscious of the racial percenteges of the districts they drew, and to 
recognizing thar their redistricting plan could potentially be subjected to federal scrutiny yet 
2g4n as a challenged racial gerrymander, '& Yet, these were merely some of the-numeraus 
  

Artm— 
ct 

I; , x : 
| 

Bene pis agree that African-American voters in North Carolina are extremely loyal moc Oters, With over 95% of African-American voters in North Caralina registered and voting accordingly. Trial Transcript, gt 388, lines 2-7. 

  

ir : 
of RL : ise of African-American legislatars in the N orth Carolina House 
at 478, lines 3-13, tends (ooamaoms one Of the 1997 redisticting plan, Tiial Transcript 1 » tends to undermine the conclusion that the legislature designed districts which 

13 The majority points to the Coo 1 1 
: ILS to the per-Cohen e-mail gs evidence of a, “methodology for ep Y face Majaricy Opinion, at 23. The majarity also suggests thal i. ih m Senator Caoper”s statements on the legislature floor that the Shaw test for 

9 

 



1312 TO 12122192052, 784  P.48-/55 
A 

MAR @8 2000 18:83 AM FR NAACP LEGAL DEF FUNDBS2 
Li LF} $2 PATAY =v Sa tne Va 080, I R20 NS) CLERKS ube [CE MALLLEN CN Llib IR Dk ; 

ea ae 9138564160 P.11,27 
CRIEF JUDGE BOYLE P17 Mar 07 OO 0S:00p    

i] 

evidence which forms the backbone of the Plaintiffs’ cage 

    

constitutionality might not be gps ed loce the e fth D tic was be OW 50 Affican 
American. H 

: iy 4 3 ; 

owever, this anecdora] 2 idence does little more than bk go 15 shuned Y 

predomina ed And they Certainly do not amount to the “smoking gun” a ‘wi uch E lain a 

t 

tft . 

19 . 
Plaintiffs i . Paver in oe te a S Jeoviisy the testimony of witnesses who were, at best, per members of ths Genera] ey S decision-making process. Three of those ¥h Toren) Grit liga Sy oo in il plan in question was adopted and ny we not 

3 rangeript, at 89, lines 2-7 R.0 Everette) 
-U. ; at 104, 

5 J.H Froelich, Jr.); at 113, lines 12-19 (Neil Uliams) Of the three witn 
J Ww : . esses 

 



1312 TO 12122182052+704  P.41-55 
Zi ub) 

MAR B88 28808 18:83 AM FR NARARCP LEGAL DEF FUNDBBZ 
Ugo te GU Lei gd rAN_JioFUidv0d SA ErnD Wl ManER WibecMHUL SE : 
: : 4 9198564168 P.12/27 

CMPEF JUDGE BOYLE : p.18 Mar 07 QO 05:00p 

opinion. Dr. W al 
p eber argued thar the Narth Carolina legislature failed to include numerous 

precincts in the Twelfth District which had high levels of Democratic support, but which were 
not majority African-American Consequently, he contended the legislature must have to 
more focused on race than op creating a Democratic dist: Dr. Weber alsq criticized Dr 
Peterson's findings as “unreliable and not relevant. Trial Transcript, at 232, liges 1-8 
However, it is the testimony of Dr, Weber, 5 adraitted hig belief that legislative bodies should 
nar be usted to draw district lines, which the undersigned finds lacking in credibility. Id, i; 
281, lines 3-14: United Slatag y, Turner, 198 F3d 435, 429 n.2 (4” Cir. 1999) (citing Dayis v 
Alaska, 415 U.S. 308, 316 (1974) (“Tbe partiality of a witness is always relevant as 
discrediting the witness spd Ufecting the weight of this testimony.”)). This stated bias is’ 
evident throughout his testimony and underminas both his criticism of Dr. Peterson as wel ¥ his re that political explanations fail to explain the composition of the Twelfth District. His 
hired gun” mentality and gbvigys prejudice against legislatures fulfilling “the most vita] of 

local functions,” atest tg the unreliability of his conclusions, Miller, 515 US. at 915 
Overlooking Dr. Weber's lack of cred;bi lity, bis arguments stil] do lire 10 advance PlainlifF 1 - uw - 

- . S" position. First, there is ng dispute thas every onc of the majority African-American | 

ly 

-Amnencan 
precincts ingl L tri 

cluded in the Twelfth District are among the highest, if not the kughest, Democrat | performing districts i 

: 

g districts in that geographic region, Thus, although Dr. Weber painted ta other 

| 

      
-  



=i Si) MAR B88 2888 18:83 AM FR NARCP LEGAL DEF FUNDBB2Z 1312 TO Ieee oroBR yd, P9088 
SoU SPUN AUB I AN YLYYG AIUD RLDULE NAHKK DY LURNHUG SL | 

P.13/27 i Pe : KS OFFICE 21398564160 os o-- 
MAR-B7-2¢82 13:03 _ exes or LE 

Har 07 0Q 0S5:01p 

any of the highest performing Democratic precincts should be excluded from the Twelfth 

District. Furthermore, Dr. Weber's entire line of criticism ignored geographic realities and one- 

person, one-vate principles. Weber admitted that the precincts which he argued are strougly 

Democratic were chosen without considering where they were localed?’ Trial Transcript, at 

286-88. Further, wider one-person, ope-vote pnnciples, Weber's precincts could not all possibly 

be included in the Twelfth District without removing 3 SoRamanding niches of voters from 

elsewhere in the district 2 id. Finally, Weber's analysis is flawed due to the incorrect 

assumptions under which he conducted his study. Weber admitted he considered a0 hypottesis 

ather than race as the legislature’s predominant motive, and he specifically failed to inquire 

about real world palidcal or partisan factors which might have influenced thre process. Id, at 

258, lines 2-11. Ons reason for the focus on race was Dr, Weber's incorrect belief that the | 

person drawing North Carslina’s districts could only see racial data, when in fact North 

Carolina's computer screens displayed information on political breakdowns of both voter 

registration and voter performance,” Id, at 261, lines 4-8. This error, his failure to account for 

  

s On Cross-examination, the Defendants presexted maps which showed thar few highly performing Democratic precincts actually gbutted the Twel&: District. Exhibits 140-142; Trial Transcript, at 290-292; at 294, lines 20-25. Con sequently, few of the strong Democratic 
precincts to which Dr. Weber referred could have easily been inchided in the Twelfth District, 

* The undersigned notes here that just because North Carolina was able to draw 3 mate compact Twelfch District in 1998 which still performed for the Democrats does not mean that the 1957 Twelfth District was necessarily unconstitutional 

2 Q. Isn'tit true that you only considered race because you believed the North ~~ Carolina computer system only displayed racial breakdowns and did got display 
political breakdowns? 

A. At that time I had not seen the screens for North Caroling. I bed seen the screens in Louisiana. And in Louisiana, they did nat prominently display political information on the screen, 
Trial Transcript, at 299, lines 16-23.  



ee: 1312 TN 121221820524 784 P.43/55% 
ae RY AY Be 

MAR ©8 2888 18:84 AM FR NAACP LEGAL DEF FUNDBSB 
Cig om arr) ed Bids ar ag FE VY) ie DORA RANA TH WT ERR SY SUL QL y a2 CLerKS OFF [CE 9198554160 P.14,27 

Mar 07 0Q 0S:01p EF JUDGE BOYLE igh p.20 

   

  

other potential factors, the flaws in hig arguments, and his ingrained personal bias cambige tn 
undermine hig subsequent conclusians and criticisms. In the end, the undersigned sees no reason 
to give any weight to the opinions of Dr. Ronald Weber and fails to understand the riaorily 
reliance on such a thin reed. 

is a significant shortcoming of the majority’s analysis is the failure to dates 
credit the testimony of the twa men Who were the driving force behind the creation of the 1997 
Redistricting Plan. Senalor Roy Cooper, 111, served as the Demacrat chair of the Senate 
Redistricti 

| 
istricting Committee and Representative Edward McMahan acted as the Republican chair of air o 

the House Red Ick] i Sticking Committee, T hey were responsible for developing a redistricting plan 

 



MAR BB 28808 18:84 AM FR NAACP LEGAL DEF FUNDESZ 1312 TD 12122132052:784 P.44/55 
3 . . ECR RT NOREEN $+] Rd Ped eB OD CLERHB afETeE “0 wit 9198564168  P.1S,2% : . l 

PEF JUDGE BOYLE - p.cl Mar Q7 QO 05:01p    
increasing geographic compactaess and reducing the number of split counties and pepineh 78 
at 343, lines 16-25; at 475, lies 13-25. The 1997 Twelst District as adapted reflected ts 

legislavers” focus on these legitimate districting criteria, The 1997 T welfth District is more 
compact, splits fewer counties and precincts, znd is much more pleasing to the eye than te 
previous District. Id, at 334, lines 7-15, The General Assembly shortened the District from 
191t 0 [02 miles, maved 60 percent of the geographic area aud 30 percent of the population out 

which had previously been criticized. Jd. at 349, ges 16-23. Most importantly, the Twelith 
District is not a minority-majority district by any wraditional measureraent, aumbering 46.67 
percent African-American in total population and only 43.36 percent African-American in | 
voting age population. Fina] Pre<Trial Order, at q 26. 

Furthermare, the Genera) Assembly had before It abundant evidence of a clear 
community of interest in the Twelfth District 2 The three urban areas located along the 
Interstate-85 industrial carridor, known as the Piedmant Crescent, share common eras 
and face similar problems. North Carolina’s Section § Submission, 1997 Congresslo nal | 
Redlstricting Plan, 97C-28F-3B, Tab 10. One statement submitted at a public bearing 
described the Twelfth District as “uniquely urban in its domingnt issues,” some of which wat ns | ; 
escribed as affordable housing, alternative transportation, alr and water quality, and varjous | 

    
    

* Final Pre-Trial Ord er; filed Nove Tr moving 4 out of 10 counties into other vin Gs BYIY Trrilid 
* Substanti [ ; oflaving 2 a pgm from both private citizens and politicians concerning the Benefits 

before the legislature SU Sy submitted at the public hearings and therefore was 
Redistricting Plan, Volume IV. hee Section S Submission, 1997 Congressional | 

14 

 



FR MAACP LEGAL DEF FULNDBS2 1312 TO .12122132852,784  P.45-85 
GOAT 

MAR B8 20888 18:84 AM 
U3-07-20U00_19:03 FAL 915867.40854 ; RLDOLF MAHER WIDENHOUSE 

DONTE (Cede LE gS CLERKS OFFICE 9198564168 P.16/27 
Mar 07 OQ 05:02p wi EF JUDGE BOYLE : : p.c2d    

otter complex issues found in ap increasingly populated and urban area. I, at Tab 11, at 78 
9. As a consequence, the urban voters in the Twelfth District 2s prescatly configured Rte nich 
mare in i dit each other than with tural voters living on the distant outskirts of oi 

urban cities.” Jd. Senator Cooper felt thst Maintaining this commuaily of interest was one of 
the legislature’s motivating factors, and indeed, the 1997 Twelfth District as drawn Av and 
protected the clear community of interest in the Piedmont Crescent. Affidavit of Senator Ray 
A. Cooper III, at § 9. 

The evidence presented by Defendants demonstrates it politics predaminated in the 
drawing of the Twelfth District in 1997. Plaintiffs evidence does nothing mare than address the 
admitted fact that legislative leaders were aware of the race issue, or perhaps that the Nor 
District could have possibly been drawn jn a different way ta accomplish the legislature's stared 
political goals. Such cvidence does not meet Plaintiffs’ heavy burden of showing by | 
preponderance of the evidence that raciel matives predominated in substantial disregard of | { 
legitimate districting criteria, 

Sec Sk is qongs, 88 646, 113 5.Ct, at 2826. If district lines merely correlate Y are drawn on the basis of political affillation, which 
  ———-] 

8 - 
majority observes that Charlotte, Wiaston-Salem, and Greensboro have never before been joined in a cq : 

: Rgressional district  - inipetus : ICLprior Io 1992. However, it petus for first grouping these metropolitan areas together was o plan IRR Pe 

 



P.46-55 MAR @8 2800 DI 
CO  eReereopRe | 19:89 LERKS OFFICE ® a5 SE 

CHYEF JUDGE BOYLE Mar 07 00 05:02p 

carrelates with race, there is no racial classification to justify, just as racial 
disproportions in the level of prosecutions for a particular crime may be 
unobjectionanle if they merely reflect racial disproportions in the cormynission of 
that crime, 

If the State’s goal is otherwise constitutional political gerrymandering, it 
is free to use the kind of political data on which Justice Stevens focuses — precinct 
general election voting patterns, precinct primary voting pattems, and legislators” 
experience - to achieve that goal regardless of its awareness of its racial 
implications and regardless of the fact that it does so in the context of a majority- 
munority districz. Te the extent that the District Court suggested to the conrary, it | 
erred. 

Bush, 517 U.S. at 967-68 (citations omitted). Only to the extent race is used a5 2 proxy for 

political characteristics will strict scrutiny be applied to otherwise permissible political 

gerrymandering. Id Therefore, | conclude that strict scrutiny should not be applied to the 

Twelfth District 

B. The First Congressional District 
! 

The First District in the 1997 Plag is 50.27 percent African-American in total population 

and 46.54 percent African-American in voting age population. Final Pre-Trial Order, at q 27, 

Thus, the First District is the only majority-minonity district in North Carolina in terms of total 

population, and no congrossional district in this stare is majority-minority in terms of voting age 

population. However, this fact does not change the applicable legal standard. A State’s decision 

to Intentionally create a majority-minorty district is not necessarily subject to strict scrutiny. 

Bush, 517 U.S. at 958. Plaintiffs still have the burden of showing by a preponderance of die 

evidence that race was the predominant factor motivating, the legislature's decision and that 

legitimate districting criteria were subordinated to race, Miller, S15 U.S. at 916, 

Senglor Coaper and Representative McMahan testified that they were mativated to create 

16  



10:84 AM FR NAACP LEGAL DEF FUNDBB2 1312 TO 12122182852,784 P.47/55 MAR 8 2000 aa ST HOG ue : WiMUb Add KLUOULE MAREN WIPE NSUL SE DUT R= 188M 10S NY al | ERKS OFFICE 9198564168 P.18/27 2s F JUDGE BOYLE It rs ‘Mar 07 00 Q5:03p 

| 
| 

i 
a mzjority-minority diswict In the Northeastem area of the state 10 avaid concerns under the 

| 
Voting Rights Act. Trial Tranczript, at 365, lines 10-25; at 464, lincs 5-8. However, their 

ie : 
| mouvaton was predicated on the knowledge that they could create a compact, contiguous 

district {in Northeastern Nerth Carolina which focused on an undeniable community of interests. 

[Als we went through the process it became clear that we could draw a nice, | Cotupact district that made geographic senge, that put together communities of | Interest, that was 2 strongly leaning Democratic district, that was slightly majority-minority population. - : : 

Id., at 359, lines 18-23, 

District 1 is a largely agrarian roral district, [t has a lot of medivm sized towns. I think uniquely [in] Eastern North Caraling you hava the 30 to 50,000 population towns with largely rural areas. A [ot of these covnties ara largely poarer counties, they are very high up an our economic tiers of depressed counties. So I think that there’s a great community of iaterest in Northeastern North Carolina with those counties that ere up there, 

Id. at 368, lines 8-15. 

Likewise, Senator Cooper and Represeatative McMahan were concerned with creating a 
| geographically compact district. McMahan in particular focused almost exclusively on 

geographical consideretions and “making the district look good” Id., at 467, lines 22-25. hn 

indeed, the 1997 redistricting process resulted in x fairly compact and normal looking | 
congressional district in Nartheastem North Carolina. The perimeter and dispersion : | 
compactness indicators of tha First District are no» much [ower than the mean compactness 

I 

ed 
indicators for North Carolina's twelve districts.” Neither number is low enough to @isea'y 

  
    

2 . pt . | The First District kas dispersion compactness indicator of 0.3 17 and a pen 
Fix cf : perimeter compactness indicator of 0.107. Gerald R. Webster, “An Evaluation of North Carolina’s | 1598 Congressional Districts,” Tab]e 3; Defendants’ Exhibits 421-32. The mean aembers North Carolina's twelve congressional districts are’ 354 and .1972 respectively. Id 

17  



  

MAR B88 2866 18:84 AM FR NRRARCP LEGAL DEF FUNDBS8S8Z 1312 TO 
“uso G3 07-2000 19:06 FAX 81980674833 RUDOLF MAHER WIDENHOUSE 

HRTg e2ddd 18010 @ OFFICE 91398584168 P.19/27 
Mar Q7 QC 05:03p CHIEF JUDGE BQYLE | Meu 

| 
| 
| 

| 

flag” according to the criteria set out in the Pildes and Niemi study.® Furthermare, as the | 
| 

majority correctly observes, where the borders of the First District have significant irregularities, 
is . a_e 

| those irregularities are arzfbutable to political motivations, namely the desire ta protect | 
Kd 

‘ L] » - - incumbents and avoid putting twa congressional incumbents iz a tingle district. Majority | 

Opinion, at 29, Therefore, although it was the intent of Senator Cooper and Representative 

McMahan to create a minority-majority district in Northeastern North Carolina, this decisio 

was based ox legitimate dismicting panciples, Quite simply, ance they knsw they gould create a 
- < . . campaet, contiguous district which addressed the community of interests in Northeastern North 

! Carolina, they felt they should do so. Trial Transeript, at 365, lines 17-24. 

The majority reaches u different conclusion, however, and applies strict scrutiny to the 
3 [ . 19 . 0 \ . . 

) 
First District. The majority characterizes the racial composition of the First District as “2 | 

mandale, a necessity,” and therefore concludes that racial motives predominated. Maj oii 
- id 

| Opinion, at 26. In support of this conclusion, the majority cites the Cooper-Cobeq e-mail which 

refers ta the desire to “boast the minority percentage in the first district” to create an “improved” 

district. Also, the majority paitits to Senator Cooper's acknowledgment at trial that he felt tlic 

need to have over 50 percent minority representation in the First District. Based upon these 
| 

| . 
a Tat study suggested that 2 “red flag"should be raised wher g perimeter compactness Ie ra elow .05 and a dispersion compgcloess indicator is below .]5. Webster, at 13 | (citing Pieldes & Nieml, Expressive Harms, “Bizarre Districts,” and Voting Rights: | Evaluating Election-District A : ppearances After Shaw v, Reno, 92 L.Rev. : 573, Table 6 (1993); Plalntiff’ Exhibit 207. alinan 

  

9 - . " 
We es Pins a strict scrutiny standard, the majority concludes that tlie First District ic Voting Rights 23 he aia getrymander, finding a compelling state interest under § 2 of the 8 t and narrowly tailored means. Although I strangly feel tha the evidence before the Court does got warrant the [cati 1 1 

0s i application of strict scrutiny, 1 agree with the majority's analysis concerning the application of the Gingles factors to the First Distiot a 

18 

  

12122182852. 7804 P.48.55



  

MAR ©8 ZB8008 18:83 AM FR. NAACP LEGAL DEF FLUNDBS2 1312 TO 1212213203%2,704 P.43-55 

 IHr=d (-200d 1B: 1d * CLERKS QOFFICE 5158564168 ‘PB. 20,27 

Mar 07 0D 0S:03p CHIEF JUDGE ROYLE p. 2B 

} 

| statements, the majority concludes that the Geperal Assembly “continued to use race es the 

predominant factor in creating the majority-minority First District, and thus strict scrutiny es 

apply," Id, at 27. 
| 

However, these statements merely highlight the admitted and permissible reality: i 

North Carolina General Assembly intentionally created a majority-minority district (in teh of 

population only) in Northeastern North Carolina. But despite the intent to create a mrt 

munority district, the evidence does not show that racial motives predamunated in TR 

disregard of legitimate criteria like compactness, contiguity, and communities of interest. 0 

Transcript, 2t 365, lines 10-25. On the contrary, the direct testimony shows that the tal, 

addressed traditional, legitimate districting criteria and determined that a mz] ocity-minority | | 
| 

district in Northeastern North Carolina was appropriate, Indeed, the criteria of Serntiod of 
mrerest and geographical compactiess wera uppermost in the legislators’ minds, Ci 

the evidence before the Court in light of the deference due the state legislative decision, my | 

undersanding of the applicable legal standard forces me to conclude that race did not 

| 

| 
unparmissibly predominate in the districting process and therefore strict scrutiny should not | 
apply to the First Congressional District. 

| 
| 

  

  i 
30 a 

narrowly talons PUIPOLts to ind that “under the 1992 plan, the First District was not 
Otinion. 136 oa oe that district was in violation of the Constitution.” Majority | 
1992 Plan was unconstitut Court has no authority 10 find that the First District under the Tre os tional. Due to a standing issue, the Supreme Court in Shaw IT did not mL A Shaw v. Hut, S17 U.S. 899, 904 (1996). Neither this Court air 
Hunt, 4:96-CV-104 BO a ns constituionality of the 1992 First District. Cr omartie . oth saty bin TE, rder filed Juge 21, 1398, at 2. The 1992 Plan no longer exists, is 
Cow. To the extent th wi y Plaindffs in this case, and simply is not an issue before this 

© Majonty’s application of the strict scrutiny is predicated on a | comparison to the 1992 First Dict iy ¢ District, such reliance is patently wrong. See discussion supra, at 
| 

19 

 



P.50/55 

      

18:85 AM FR NAACP LEGAL DEF FUNDSS82 1312 TO 121221320852. 704 
FY eel 14 : CLERKS OFFICE 9196564168 P.21/27 

MAR B8 28080 

EF JUDGE BOYLE 
| P1127 

SE NX S13 Le L10 

Mar 07 00 05:04p 

| 
v. REMEDY 

I alsa respectfully dissent from the decision to require the Genera] Assembly once Loita 
to redraw the Twe(fth District. 

| 
The filing period for Congressional candidates began on January 3, 2000, ang euded on 

February 7, 2000. N.C. Gen. Stat. § 163-106(c). The General Assembly is not scheduled © 

| 
reconvene vatil May 2000, the same month that North Carolina will conduct jts primary 

1 anf . ; elections, Forcing the General Assembly to call a special session ta address this Court’s nuling 
| ’ : Creates a plethora of problems. Ongoing election preparation wall be interrupted as | con idates wi 

| 
gressional candidates wil] pe forced 10 refile and redesign their election strategies, Citizen 

confid ence in the electoral process will ba undermined by the repeated reconfiguration of | 
election districts. While cost is not a factor to be considered in tailoring a constitutional oh 
it will be a caneern to citizens hoping for closure in this long-running litigation. Also of no | 
small concern is the time Decessary for § S pre-clearance of changes from the ‘97 or ‘98 plas 
the probability of litigation under § 2 of the Voting Rights Act in the eveq( of major changes - 
district lines, and the virtua] certainty of another challenge by Pleinfiffs if the new lines do - 
mee! their satisfaction. Ta suggest that new districts, hastily drawn pursuant ta ths Court’s | 
Order, could have a salutary effect op the 200] decennial redistricting js purely speculative in 

sary 

quite probebly, an abuse of discretion. 

  There iy 
I 

Supreme Cour precedent for this Court 1g consider “the proximity of a 

20 

 



1312. TO 12122192852, 784 'P.S51/98 FR NAACP LEGAL DEF FUNDBSZ 
& Vuv 

MAR B88 2888 18:85 AM ; 

Yor tied Buy "ug. dy Lite 2439014854 LENKS ta MANE WLIUENMIUL SE | 

38198564 

Mar 07 00 0S:04p EF JUDGE BOYLE ona: dy 
| 

| 
| 

forthcoming clecti Itacoming clection and the mechanics and cornplexities of state election Jaws” in fashioning 

8 - l , 
- . 

| 

unconstituli ion is i I 
nsutulional plan where an election is Unpending. Ely v. Klakr, 403 U.S. 108 (1971). 

Sis 4 hs summer of [97]... 
(then) mzke | a 972 elect 
Co 

i as ans are held under 5 constitutionally adequate   
Id., at 114-15 (footuote omitted). 

Oo islati 1 | 
5 Joes : ote) : ae Spade ent scheme has been found to be » Btw © (he unusual eese in which a court would be ine: uy f i La Action to lnsure that no further ele a ve Jus 3 ry hii : Li yar ne certain circumstances, such as brie ant EE i : 
progress, equitable considera wi a Sy pe % 

- 
- . 

. - 
5 : gislative apportionment case, even 

was found invalid. In awarding or 
natled to and should consider the 

It from requiring precipitate 
ing demands on a State i   

Reynalds, supra; Qrder Su ; | 
> Supra, at 14-15 (Ervin, J, dissenting). Forther, there is precedent i North Carolina for L conducting elections under an Uncenstitutional plan in order to avoid und ue disruption of the electg 3 itt 

; | ral process, Fermitting the legislature tn expend its encrgy, best 
    

—— 

  
   



2122192052,7@4 P.52/55 MAR B88 2000 a i rr 5138564168 P.23/27 "Mar 07 Gu us: usp @- BoD Auras I ; 

  judgment, and resources og planning for and developing a canstifutional plan for the Teel 
District based on the Year 2000 population data would accord with Supreme Court precedent, 

accommodate the “equitable considerations’ recognized in Reynolds, and aligw the filings, : 
| campaigns and elections far 2000 to proceed on schedule, This Court should keep in mind] that   whatever the decision is in this case, simple arithmetic and Constitutional tnandate dictate the 

redrawing of at least some naw congressional district lines for the year 2002 elections tons on 
the year 2000 census figures, 

VI. STANDING 

Defendants contest Plaintiff Ronald Linyille's studing to participate in this case, i 
Plaintiffs stipulate, Linville IS NOt 2 current resident of the First or Twelfth Congressional   Districts, the two districts being challenged as racta) gerrymanders.® Final Pre-Trial Order, 
filed November 29 1999, at V's 20-23. Although he daes not claim tw be unhappy with his own 
district, Linville ZIves numerous objections to the Twelfth District and concludes that it is wn 

      — 
| [{Tn exercise of this Court’s equitable of immediately effective re ef for fo in legislative districting plans j ongoing state electo 

Dee i July 30, 1996 in Shaw v. Hunt, 92-202-CIV-5-BR at 2-3 (citing Reynolds, 377 
- at 585).   

CO! and registe 95.94 percent white, Jg 

   



1312-70 121221326%82,704 P.53-55 
CRUSE — 

MAR B88 20088 18:85 AM FR NAACP LEGAL DEF FUNDBSZ 
0d -Uu7-2000 19:07 FAX_8183674933 ENE SEU MAHER WIDEMAULDE 3 

ar JUulbLE BUYLE 3 91Se564168 P.24.27 

 2long racial lives. Linville Draft Deposition, at 17, 20, 23, 25-26, 34, 56, 57, 65. 75.77.   
y told 

Linville further complains about being separated from hig father politically, being implicit] 
be was “toa white 10 belong in the district right next to (him),” and being “deliberately 
segregated immediately outside of a racially drawn district whose boundary was adjacent to his 

own precinct.” Plaintiffs’ Response to Defendants’ Motion for Summary Judgment, at 22, 
n.11. Plaintiffs produced no further evidence which suggests that Linville has been personally 
injured by 2 racial classification, despite asqurances at the beginning of the tra] that they would 
do so. Tria) Transcript, at 5, liges 10-12.   Federal courts have en independent obligation to examine their own jurisdiction; standing 
“is perhaps the most important of [the Jurisdictional] doctrines.” United States v. Hays, S15 bs. 
737, 742 (1995) (quoting FW/PBS, Inc. », Dallas, 493 U.S. 215, 230-31 (1990)). The party 
who seeks the exercise of i jurisdiction bas the burden of clearly alleging facts which demonstrate 
that he or she is 3 broper party to invoke judicial resolution of the dispute. Hays, 515 U.S. at 
743. Even where a case has proceeded to final judgmen; after a trial, “those facts (if 
countroverted) must ba ‘supported adequately by the evidence adduced at trial" to avoid dismiskal 
o standing grounds.” I, (cftations omitted).   I a the context of redistricling cases, a citizeq has standing to challenge a racial 
classif tcation in federa| court if thy t citizen is “able to demonstrate tha 

| t be or she, personally, has 
Sadni Injured jured by that kind of racial classification ” Id. at 744, Becayse of tie difficulty in | 
demonstratin 8 this individualized bao, the Supreme Court created 4 presumption in favor of 
standin b{ g or residents of a challenged district, Hayy, 515 U.S. at 744-45; accord Miller y, 
Johnson, 515 1.6, S. 900, 910-11 (1995). However, where 2 pl2intifT ie not a resident of tle 
h i challenged district, the plaintiff is not afforded the benefit of this presumption. 

23 

   



MAR 88 2000 18:85 AM FR NAACP LEGAL DEF FUNDSB82 1312 TO 12122132052,704 P.S54/55 

313856416  p.25 on 
- —— ~~ S~ 

fe oe nr 
sve We | So SE Bs mt Nt — 

: 

- 4 ag amy 
1 

‘ | 

   

  

(Where a plaintiff does not live in such a district, he or she does not suffer those 
special fay, and any inference that, the plaintiff has personally been subjected toa racial classification would not be justified absent specific evidence tending to Spas af inference. oes such evidence is present, that plaintiff would be | Rg only & generalized grievance apainst pmv a Bg governmental onda af which ke | 

  
| 

Hays, 515 U.S. at 745 (emphasis added). The Supreme Court repeatedly has refused to 

| recognize a “generalized grievance against allegedly illegal governmental conduct as sufficient 

for standing to invoke the fader) Judicial power," £d., at 743 (citations omitted). 

Consequently, plaintiffs who are nol residents of a challenged district may sue orly if they : 

able to make a specifi evidentiary showing that they have been “personally classified by race.” 
Id, at 745; Shaw IT, 517 U.S. at 904; Busk, 517 U.S. at 957-58. | 

By seeking to includes Linville as a participant in this lawsuit, Plaintiffs ask this Court to 

  grant standing to a class of plaintiffs which the Supreme Court has explicitly refused to 

| recogmze. Only where a non-resident plaintiff is able to make a specific evidentiary showing of 
personal injury will that plaintiff have standing to sue in federal court. Linville’s hlany of | 
generalized grievances will not suffice to creale Silas Because Linville is not a resident of 
i First or Twelfth Districts, and 1g specific evidence that he has personally been subjected to a 
racial classification is before this Court, I would dismiss Linville as a plaintiff for lack of | 
standin g. 

VII. CONCLUSION 

Lost amidse idst the Smoking gun e-majls, the “uacontroverted" statistiog] information, and 
the indighant inal] ist 

ghant examizations of irregular distric: lines is Plaintiffs’ burden of proof in this case. | 
The Plaintiffs | rust demonstrate by a Prepondemnce of the evidence that a racial motivation 

24   
 



3312. TO 1212219205 2+.784 P.S5,85 
CAR USI —    

  

MAR BS 20008 18:86 AM FR MNARLP LEGAL DEF FLNDESZ 
A ESL ESR RR COR SRY PIR Sr i BE I ER I ALL Mall, NLULNIUL QL : 

S 5198564168 p.2g, om 
Hi ‘ 
! 

  "predominated in the Jeo Nu i | 
wed egislature’s decision-making and that legitimate districting princi ples were 

. Sufficient. 

The two men most knowledgeable shout the 1997 Congressional redistricting plan 

  

Finally, I am compe] | 
| 

compelled ta note that this decision forces the North Carolina General Assembly to ¢ 1Strich 
y reare a redistrie ng plan based on population figures from the 1990 1 census, 

  

25   
HK ¥% TOTAL PAGE.SS