Fax From Stein to Cox RE: Draft Jurisdictional Statement

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No. 97-893 
a 

  
In the 

AY upreme Court of the United States 
October Term, 1997 

Er 
  

JAMES B. HUNT, JR, in his official capacity np Governor of the State of Notth Carolina, er al, 
Appellants, 

Yy. 

MARTIN CROMARTIE, ef al, 
Appellees, 

On Aptis] from the United Stafes District Court astern District of North Carolina 
  

JURISDICTIONAL STATEMENT 
Serra. 

    

Governor James B. Hunt, Jr, and the other state defendants below appeal from the final judgment of the three-judge United States District Court for the Eastern District of North Carolina, dated April 6, 1998, which held that the congressional redistricting plan enacted 
by the Nerth Carolina General Assembly on Mareh 3 1, 1997 was unconstitutional and permanently enjoined appellants “from conducting aay elections under that plan, 

OPINIONS BELOW 

The April 14, 1998, opinion of the three-judge district court, which has not yet been reported, appears in the Appendix to this jurisdictions] statement at 1a. 

 



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JURISDICTION 

The district court's judgment holding thet District 12 violates the Equal Protection Clause of the Fourteenth Amendment was entered on April 6, 1998, On April 8, 1998, appellants filed an amended notice of appeal to this Court, The jurisdiction of this Court is invoked under 28 U.S.C, § 1253. 

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED 
This appeal involves the Equal Protection Clause of the Fourteenth Amendment and Rule 56 of the Federal Rules of Civil Procedure, Summary Judgment. See App, 169 & 17 la-173a, 

STATEMENT OF THE CASE 

A. THE 1997 REDISTRICTING PROCESS. 

In Shaw v, Hunt, 517 0.8. 899 (1996) (Shaw II), this Court held that District 12 in North Carolina's 1992 congressional redistricting plan (“the 1992 plan”) violated the Equal Protection Clause because race predominated in its design and it could not survive sttiot scrutiny. On remand, the district court afforded the state legislature an Opportunity to redraw the State's congressional plan to correct the constitutional defects found by this Court, and the legislature established Senate and House redistricting committees to carry out this task, 
In consultation with the legislative leadership, the committees determined that, to pass both the Democratic-controlled Senate and the Republican-controlled House, the new plan would have to maintain the existing partisan balance in the State's congressional delegation (a six-six split between Democrats and Republicans). Toward that end, the committees sought a plan that would preserve the partisan cores of the existing districts and avold pitting incumbents against each other, to the extent consistent with the goal 

 



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of curing the constitutional defects In the old Plan. To craft “Democratic” and “Republican” districts, the committees used the results from a series of elections between 1988 and 199s, In designing the plan, the committees of eoyrse sought to comply with the requitements of the Voting Rights Act, a3 well as the Ir constitutional requirement of population equality, Aeutely conscious of their responsibilities under this Court's decision in Shaw snd its Progeny, howover, they sought a plan in which racial considerations did not predominate over traditional raoe-neutral districting criteria, Toward this end, they decided to emphasize the following traditional race-neutrel districting principles in designing the Plan; (1) avoid dividing precincts; (2) avoid dividing counties when roasonably possible;! (3) eliminate “cross-overs,” “double cross-overs,” and other artificial means of maintaining contiguity; (4) group together citizens with similar needs and interests: and (5) ensure ease of communication between voters and their representatives. The committees did not select geographic compactness as a factor that should recelve independent emphasis in constructing the plan. The committees’ strategy proved successful, On Marsh 3 1,1997 the North Carolina legislature enacted a new congressional redistricting plan, 1997 Session Laws, Chapter 11 (“the 1997 plan"), the tedistrioting law at issue in this case. The plan is e bipartisan one, endorsed by the leadership of both parties in both houses. 

B. THE 1997 PLAN. 

The 1997 plan creates six “Democratic” districts and six “Republican” districts, The now d istriets are designed to preserve the partisan cores of their 1992 predecessors, yet their lines are 
  

' In Nonh Carolina, as In most of the goutheastem states, Jt Is virtually Impossible to design a congressionu) map that does nof split any of the State's 100 counties, given the constitutions) mandate of population equality and other legitimate districting concerns. 

 



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characteristics); jt divides only twenty-two of the State's 100 counties (none among more than two districts); all of its districts are contiguous, and it dees not rely on artificial devices Jike Cross-overs end double cross-overs to achieve that contiguity.! Though the legislature did not emphasize goopraphfc compactness for its own sake in designing the 1997 Plan, its districts are significantly more geographically compact, judged by standard mathematical measures of geographic compactness, than thelr predecessors in the 1992 pian, The 1997 plan is racially fair, but race for its own sake was not the predominant factor in its deeign or the design of any district within it. Indeed, 12 of the 17 African-American members of the House voted against the plan because they believed it did not adequately take into account the interests of the State's African- American residents, 
District 12 is one of the six “Democratic” districts established by the 1997 plan, Seventy-five percent of the district's registered voters are Democrats, and at least 62% of them Voted for the Democratic candidate in the |988 Court of Appeals election, the 1988 Licutenant Governor election, and the 1990 United States Senate election, District 12 is not a majority-minority district by any measure; only 46.67% of its total Population, 43 36% of its voting age population, 

  
  

* In contrast, the 1992 Plan this Count invalidated in Ska I! divided BO precincts: divided 44 of the State's 100 counties, seven of them among three different districts: and achieved contiguity only by heavy reliance on artifiojal deviess like cross-overs and double cross-overs. 

 



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relying on artificial devices like cross-overs and double cross-overs! It creates a community of voters defined by shared intorests other than race, joining together citizens With similar needs and interests in the urban and industrialized areas around the interstate highways that connect Charlotte and the Piedmont Urban Triad, Of the 12 districts In the 1997 plan, it has the third shortest travel time (1.67 hours) and the third shortest distance (95 miles) between its farthest points, making it highly accessible for congressional representative, District 12 is significantly more geographically compact than its 1992 predecessor, Under standard numerical measures of compactness, it is still the least geographically compact of North Carolina's congressional districts, Because it is built around major transportation corridors, however, it is highly compact as a functional matter, District 1 is another of the six "Democratic" districts establishad by the 1997 plan. Unlike District 12, District 1 js u majority-minority district by one measure: 50.27% of its total population is Afriean- American. Like District 12, District 1 respects the traditional race- 
  

* In contrast, 56.63% of the 1ola) population, 83.34% of the voting ape population, and $3,84% of the registered voter population of District 12 In the 1992 plan was African-American. 

1 In contrast, District 12 In the [992 plan divided 48 precincts; Included parts of ten counties; and achieved contiguity only by heavy reliance on artificin] devices like cross-overs and doybls ©ross-overs, 

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neutral redistricting criteria identified by the legislature, It contains no divided precinets; it divides only ten Counties; end it achieves contiguity without relying on artificial devices like cross-overs and double ¢rogs 

counties in the State's northern 
Because 40 of North Carol; 

preclearance requirements of 
legislature submitted the 1997 
of Justice for preclearance, 
June 9, 1997, 

C. LEGAL CHALLENGES TO THE 1997 PLAN, 

1. The Remedial Proceedings in Shaw. 
Equal Protection challenges to the 1997 plan were first raised in the remedial phase of the Shaw litigation, when the State submitted the plan to the three-judge court to determine whether It sured the constitutional defects in the earlier plan. Two of the plaintiffs who challenge the 1997 plan in the instant ease -- Martin Cromartie and Thomas Chandler Muse -- participated as parties plaintiff in that remedial proceeding, represented by the same attomey who represents them in this cage, Robinson Everett.® 

    

* In conrast, District | jp the 1992 plan split 2$ precinets and 20 countles, and achieved contiguity only by relying on artificial devices like cross-overs and double eropx-overs, 

* The original plaintiffs in Shaw were five residents of District 12 as It existed emend from thls Court's decision in Shaw II, Cromartie and Muse sought and obisined the district court's leave to loin them ag plaintifTs, in otder to assert a claim that District 1 In the 1992 plan was an unconstitutiona] racial gerrymander = u clalm which this Court had Just held that the ofiginal Shaw plaintiffs [acked lending to assent, 

 



   
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In that proceeding, Cromartie, Muse, and thejr co-plaintiffs (“the Shaw plaintiffs”) were given an Opportunity to litigate any 

proposed remedy for the plan this Court had Just declared unconstitutiong],’ They elected not to aval themselves of that opportunity. They did inform the Shaw court that they believed the 1997 plan to be “unconstitutional” because Districts 1 and 12 -. the same districts they now challenge In this astion -- had been “racially gefrymandered.” App, 183a-186a, At the same time, however, they asked the court not to decide their constitutional challenges to the proposed remedial plan. The reason they gave was somewhat surious: that the court lacked authority to entertain these claims, because none of them had standing to challenge the proposed plan undet United States v. Hays, S15 US, 737 (1995).* For this reason, they asked the court “not [to] apprave or otherwiss rule on the validity of’ the new plan, and to “dismiss this action without prejudice to the right of any person having standing to maintain a separate action attacking [its] constitutionality.” App. 186s, The State defendants actively opposed 

Aevre—— 

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7 App. 181n-182a (directing the Shaw plalntifts to udylse the court “whether they Intend[ed) to claim that the [1997] plan should not be approved by the court becayse It dees not cura the constitution! defects In the former plan” and, If so, "to Identify the basis for that clalm™), 

" App. 1862 ("Because of the lack of standing of the Plaintfma, there appears 10 be no matter at [ssus before this Court with respect to the new redistricting plan”). The Shaw plaintifls based this argument on the assenlon that none of them resided In the reamwn District |2, App. 1858-186. The argument wag somewhat disingenuous, for at least twa of tholr number -- Cromartie and Muse -- reslded in the redrawn District | and thus hed standing to essen a raols] Berrymandering challenge to the 1007 plan, even under their own bizarre reading of the Haw decision. 

 



   
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Plaintiffs’ effort to reserve their constitutional challenger to the 1997 plan for a new lawsuit, 
The three-judge court rejected the Show plaintiffs’ argument that it lacked jurisdiction to entertain their constitutional) challenges to the State's proposed remedial Plan. App. 166a-168a. The court then went on to rule that the plan was “jp conformity with constitutional requirements” and that it was an adequate remedy for the constitutional defects in the Prior plan “as to the plaintiffs and plaintiff-intervenors in this ease,” App. 1608, 167a, On that basis, the court entered an order approving the Plan and authorizing the state defendants to proceed with congressional elections under it. App. 1578-1584. The Shaw plaintiffs took no appeal from that order. 

2, The Parallel Cromarie Litigation, 

Having forgone an opportunity to litigate their constitutional challenges to Districts 1 and 12 in the 1997 plan before the thres- judge court in Sherw, Cromartie and Muse immediately sought to have PL those same claims adjudicated by a different three-judge court. They did so by amending a complaint in a separate lawsuit they had 48 . , previously filed against the same defendants, a lawsuit in which they Js : were also being represented by Robinsen Everett, In that amended Rg complaint, Cromartie, Muse, and four persons who had not besn ~~ named as plaintiffs in Shaw (“the Cramortie Plaintiffs") asserted racial gerrymandering challenges to Districts 1 and 12 in the 1997 plan, the very plan the three-judge court in Shaw had Just approved over their objection. 
On January 15, 1998, the Cromartie case was assigned to a three- judge panel, consisting of one Judge who had served on the three- Judge panel in Shaw -- Judge Voorhees, who had dissented from the panel's decisions in Shaw J and Shaw J/ .. and two new judges. On January 30, 1998, the Cromartie plaintiffs moved for a preliminary injunction halting all further elections under the 1997 plan. Several 

 



    
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days later, they also moved for summary judgment. The Stats defendants responded with a crogs-motlon for summery judgment. On March 31, 199g, before it had permitted either party to fo oi 
§ 7) Yr 

summery judgment, Three days later, the court, with Cireult Judge red x 

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conduet any discovery, the three-judge eourt heard brief oral LJ 

Sam J. Ervin, III, dissenting, entered an order granting the Cromartie J plaintiffs’ motion for summary judgment, declaring District 12 in the AEX 1997 plan unconstitutional, end permanently enjoining the State A ok defendants from conducting any elections under the 1997 plan.’ The S§ 2 court's order did not explain the baeis for its decision, stating only hier jy thet “[mJemoranda with reference to [the] order will be issued ag soon as possible,” App, 458-464, 
The State defendants immediately noticed an appeal to this Court. Since the elections process under the 1997 plan was already in full awing, they asked the district count to stay its April 3rd order pending disposition of that appeal. The distriet court declined to do 80, The State defendants then applied to Chief Justice Rehnquist for a stay of the same order. The Chief Justice referred that application to the full Court, which denied it on April 13, 1998, with Justices Stevens, Ginsburg, and Breyer dissenting. When this Court acted on that stay application, the district eourt had yet to issue an opinion explaining the order and permanent injunction in question, 

D. THE THREE-JUDGE DISTRICT COURT'S OPINION, 

On April 14, 1998, the three-judge court issued ap opinion explaining the basis for its Order of April 3, 1998. At the outset, the 

  a 

* The order made ne referenes to District 1, though the Cromartie plaintiffs also had moved for summery judgment on their claim that it was an ungonslitutional racial gerrymander, Not untij fhe memorandum opinion was filed on April 14, 1998 did the count explain that it was denying summary Judgment rs to District 1, App. 228-233, 53a, : 

 



   
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court ruled that “the September 12, 1997, decision of the Shaw throe- Judge panel was not preclusive of the instant cause of action, as the panel was not presented with 8 continuing challenges to the redistricting plan," App. 38-43, The eourt then held that the Cromartie plaintiffs were entitled to summary judgment on their challenge to District 12, because the “uncontroverted material facts” established that the legislature had “utilized race ns the predominant factor in drawing the District” App. 218-224. Unlike the lower courts whose “predominance” findings this Court upheld in Miller, Bush, and Shaw 1, the court did not base this finding on any direar evidence of Jegislative motivation; Instead, it relted wholly on en inference it drew from the district's shape and racial demographics. The sourt reasoned that District 12 was “unusually shaped,” that it was “still the most geographically scattered” of the State's congressional distriets, that its dispersion and perimeter compactness measures were lower than the mean for the 12 distrists in the plan, that it “inelude(s) nearly all of the precinets with African-American population proportions of 
over forty percent which lie between Charlotte and Greensboro,” and 
that when it splits cities and counties, it does so “along racial lines.” The court concluded that these “facts,” which it characterized as “uncontroverted,” established -- BS 8 matter of law -- that the legislature had “disregarded traditional districting criteria” and 
“utilized race as the predominant factor” in designing Distriet 12, 
App, 198-224, 

Finally, the court held that the Cromartie plaintiffs were rot 
entitled to sutnmary judgment on their challenge to District 1, the 
only majority-minority district in the 1997 plan. The court did not 
explain the basis for this holding, except to say that the Cromariie plaintiffs hed “failed to establish that there are no contested material issues of fact that would entitle [them] to judgment as a matter of law as to District 1.” App. 22a. In denying the state defendants’ cross- mation for summary judgment on the same claim, however, the court stated that the “contested material issue of fact” concerned “the use 

    

 



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of race as the predominant factor in the districting of District 1." App. 23a, 
Judge Ervin digsented, App. 258, In his view, the majority's conolusion, that the evidence jn the aumthery judgment record was sufficient to establish -« ag g matter of law -- that race had been the predominant factor in the design of Distriot 12, was strikingly inconsistent with itg conclusion thet the game evidence was sos sufficient to establish that race had been the predominant factor in the design of District 1, given that the two districts were drawn by the same legislators, at the same time, as part of the same state-wide redistricting process, The inconsistency was even more striking, he noted, “when one considers that the legislature placed more African- Amoricans in District 1, . , than in District 12.” App. 38a. 

E, THE 1998 INTERIM PLAN, 

On April 21, 1998, the eourt entered an order allowing the General Assembly 30 days to redraw the State's congressional redistricting plan te correct the defects it had found in the 1997 plan. App. 558. On May 21, 1998, the General Assembly by bipartisan vote enacted another congressional redistricting plan, 1998 Session Laws, Chapter 2 (“the 1958 plan”), and submitted jt to the court for approval. The 1998 plan is affective for the 1998 and 2000 elections unless this Court reverses the distriet court decision holding the 1997 plan unconstitutional," The Department of Justise precleared the 1998 plan on June 8, 1998. 
On June 22, 1998, the distriet court entered an order tentatively spproving the 1998 plan and authorizing the State to proceed with the 1998 elections under it, App. 178a-180s. The court explained that 
  

1° See 1998 Session lews, ch. 2, § 1.1 (“The plan adopted by thiz act lg effective for the elections for the years 1998 end 2000 unless the United States Supreme Court reverses the decision holding unconstitutionai G 8. 163-201(n) ax it existed prior to the enactment of this act."), 

 



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the plan's revisions to District 12 “successfully addressed” the concerns the court had identified in its April 14, 1998 opinion, and that it appeared, ‘fron the record now before [the court],” that race had not been the predominant factor in the design of that revised distriet, The court noted that jt Was not ruling on the constitutionality of revised District 1, and it directed the parties to prepare for trial on that issue, It also “reserve[d] jurisdiction” to reconsider its ruling on the constitutionality of redrawn Distriet 12 “should new evidence emerge,” App. 177a-179a. 

ARGUMENT 

I. SUMMARY JUDGMENT ISSUE. 

The district court's application of the Rule 56 summary judgment standard in this context presents substantial questions that warrant 
either plenary consideration or Summary reversal, 

The threshold inquiry for deciding whether a district is subject to 
strict scrutiny under Shaw, turning as it does on the actual motivations 
of the state legislators who designed and enacted the plan, is 
peculiarly inappropriate for resolution on summary judgment, This 
Court has repeatedly affirmed its “reluctance to aftribute 
unconstitutional motives to the states.” Mueller v. Allen, 463 U.S. 
388, 394 (1983). When a federal court is called upon to judge the 
constitutionality of an act of a state legislature, jt must “presume” that 
the legislature “act[ed] in a constitutional manner," /llimols v, Krull, 
480 U.S, 340, 351 (1987); see McDonald Vv. Board of Election 
Comm'rs of Chleago, 394 U.S. 802, 809 (1969), and remember that 
it “is not exereising a primary judgment but is sitting in judgment 
upon those who also have taken the oath to observe the Constitution.” 
Rostker v. Goldberg, 453 U.S. 57, 64 (1981) (internal quotation 
omitted). In Miller v. Johnson, $15 U.S. 900 (1995), this Court made 
clear that these cautionary principles are fully applicable in Shaw 
cases, 515 U.S, at 915 (“Although race-based decisionmaking is 

 



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inherently suspect, until a claimant makes a showing sufficient to support that allegation, the good faith of a state legislature must be presumed.”) (citations omitted). Indeed, they have even greater force in Shaw cases, given the “sengitive” and highly political nature of tho redistricting process and the “serious intrusion” on stato sovereignty that federal court review of state districting legislation represents. S15 U.S. at 916 (admonishing lower courts to exercise “extraordinary caution” in adjudicating Shaw claims) (emphasis added). Ignoring this Court's directives, and oblivious te the fact that the invalidation of a Sovereign state's duly-snacted electoral districting plan is not a casual matter, the court below resolved the contested LAE } re issue of racial motivation -- and with it, the issue of the plan's validity JX ( -= On summary judgment. Op the basis of a brief hearing, at which it iA int 
heard no live evidence but merely argument from counsel, jt Ed concluded that plaintiffs had established -- as A matter of law -- that (her 5 race had been the predominant factor in the construetion of Distri , 12. App. 21a-22a. In so doing, it committed clear and man|fest error, Com The district court’s decision is flatly inconsistent with this Court's Wi decision in Anderson v. Liberty Lobby, Inc,, 477 U.S. 242 (1986). There, this Court made clear that a motion for summary judgment must be resolved by reference to the evidentiary burdens that would apply at trial, Jd, at 250-54, Where, as here, the party who seeks summery judgment will have the burden of persuasion at trial, he can obtain summery judgment only by showing that the evidence in the summary judgment record is such that no reasonable factfinder hearing that evidence at trial could possibly fail to find for him. Jd, at 252-55, In other words, he must demonstrate that the evidence, viewed in the light most favorable to his opponent, is “so one-sided" that he would be ent]tled to judgment as a matter of Jaw at trial. Id, nt 

249.52, 
In this case, plaintiffs had the burden of persuasion at trial on the predominance issue, Miller, 515 U.S. at 916. The district court utterly ignored this critical fact in concluding that they wers entitled to 

 



   
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Summary judgment on thejr claim challenging the constitutionality of District 12, Indeed, the court appeared to be analyzing their motion for summary judgment under the standard that applies to parties who Will nor have the burden of persuasion at trial, App. 21a (iting Celotex Corp. v, Catretr, 477 1 8, 3] 7, 324 (1986)), Had the district court applied the standard this Court's precedents direct it to apply, it could not have justified the conelusion that plaintiffs were entitled to Summary judgment on their claim challenging the conatitutionality of District 12. To obtain summary judgment on that claim under Liberty Lobby, plaintiffs were required to show that no reasonable finder of fact, viewing the evidence in the summary judgment record in the light most favorable to the State defendants, could possibly find that race had of been the predominant factor in its design. 477 US, at 252-55. The only evidence in the record tending to show that race had been the predominant motivation in the construction of District 12 was an inference the plaintiff asked the court to draw from their evidence of the district's shape and racial demographics.’ There was absolutely nodirect evidence’ of such ap improper motivation before the district 

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'' Plaintiffs presented various maps and demographic data ax well as the affidavits of several experts whe relled on the same evidence of shape end raclal demographics to opine that race was the predominant factor used by the State lo draw the boundaries of the congressional districts, Buch postenactment testimony of outside experts “is of little uge” In determining the legislature's purpose in enacting a particuler statute, when none of those experts “panlelpated in or contributed 1o the enaztment of the law or its implementation,” Edwards v, Aguillard, 482 U8, 578, $95.96 (1987), 

While the distinction betwasn “direct” and "clroumstantia]” evidence iz "oflen subtle and difficult," Price Waterhouse v, Hopkins, 49D 1.8. 228, 291 (1989) (Kennedy, J,, dissenting), mos courts define “direct evidence” of motivation as “condust or statements by persons involved in the deelslonmaking process that may be viewed as directly reflecting the aliegod [motlvation],” Starsesks v, Westinghouse Else, Corp., S4 F.3d 1089, 1096 (34 Cir, 1995) 

 



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court: no ¢oncessions to that effect from the State defendants, and no evidence of statements to that effect in the legislation itself, the committee herrings, the committee reports, the floor debates, the State's § § submissions, or the Post-enactment statements of those J who participated in the drefting or enactment of the plan, Compare Miller, $15 U8. at 91 8; Bushv, Vera, 517 U.S, 952, 959-62, 969.7] (1996) (plur. op.); Shaw II, 517 U.S, at 906, This evidence was legally Insufficient, even if uncontradicted, to permit a reasonable finder of fact to conclude that Plaintiffs had discharged their burden of persuasion on the predominance Issue. A court must “look further than a map” to conclude that race was a state legislature’s predominant eonsideration in drawing district lines as a matter of law. See 915 F, Supp. et 1565 (Hatchet, J, dissenting), By contrast, the summary judgment record contained substantial direct evidence that race had mor been the predominant factor in the design of District 12. This evidence consisted of affidavits from the legislators who headed the legislative committees that drew the 1997 plan and shepherded it through the General Assembly, See App. 69a- 84n. These legislators testified under oath that they and their colleagues were well aware, when they designed and passed the 1997 Plan, of the constitutional limitations imposed by this Court's decisions in Shaw and jt progeny, and that they took pains to ensure that the plan did not run afoul of those limitations, They also testified under cath that the boundaries of District 12 in the plan had been motivated predominantly by partisan political concerns and other legitimate race-neutral districting considerations, rather than by racial considerations, At the summary judgment stage, the district court was obligated to accept this testimony as truthful, See Liberty Lobby, 477 
  

While the combinatien of » map snd racial demographles may, under certain “extraordinary circumstances,” be sufflelent to state a claim that tage was the predominant factor in # distrfot’s design, son Shaw v. Rene, $09 U.S. 630, (1993) (Shaw I) there is a vast difference belween stating a elaim and proving {t, 

 



   

  

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U.S. 2t 255 (“The evidence of the nonmovant is to be believed, and 
X all justifiable inferences are to be drawn in his favor.”), The distriet A court did precisely the opposite: it assumed that these state legislators S D had lied under oath about the factors that motivated them in drawing RD the lines of District 12, That assumption was one this Court's ( rr precedents simply did not permit it to make at this stage of the litigation. Jd; Miler, 515 U.S, at 915.18, 

Se 
The district court's application of the Rule 56 standard Was go ™ \ irregular that summary reversal is warranted, even if this Court Lo \ a 0 © concludes that the case does not present issues warranting plenary 5 (§ consideration, “Striking down a law 8pproved by the democratically WA elected representatives of the people is no miner matter,” and this Court's precedents do not permit it do be done “on the gallop.” . Edwards v. Aguillard, 482 U.S. 578,626,611 (Scalia, J,, dissenting). oY 

II. PRECLUSION ISSUE. 

This case also raises important issues eoncerning the effect of a final judgment from a court of competent jurisdiction holding a state's proposed redistricting plan constitutional on the ability of the parties to that judgment and their privies to challenge the same plen again In A. » ( J a later lawsuit bofore a different court, 
& Cr 

   
Two of the appellees herein -- Cromartie end Muse -- participated as parties plaintiff in the remedial proceedings in Shaw. In those (by { Hx Ha proceedings, the eourt offered them a full snd fair opportunity to J Jd iw litigate any constitutional challenges they might have to the [997 § oi 8 4 plan, whieh the State had proposed as a remedy for the constitutional (A IZ 0) defects found in the earlier plan. They elected not to avail themselves gy" Cp of that opportunity, and the Shaw court entered a final judgment \  X : 2 finding the plan constitutional and authorizing the State to proceed wt \ ot with elections under it, Under elementary principles of claim Ww” 5.9 preclusion, that final Judgment extinguished any and all claims & Lam \ NES Cromartie and Muse had with respect to the validity of the 1997 plan, k : tL 7 al ok” including the claim they now assert in this action, which challenges 

 



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strategic claim-splirting, 
The final Judgment entered in Shaw also bars the claim eppeliess Everett, Froelich, Linville, and Hardaway assert in this action, which challenges the 1997 Plan's District 12 as a racial gerrymandor. Though these individuals were not formally named as parties in Shaw, they are bound by the fina] Judgment entered in that case because their interests were so closely aligned with those of the Shaw Pleintiffs as to make the Shaw plaintiffs their “virtual representatives" in that earlier action, * 

Ignoring fundamental principles of claim preclusion, the district court held that the final judgment entered in Shaw did not bar the claims appellants assert here. App. 3a-4a, The court based this conclusion on its understanding that the Shaw court “was pot presented with a continuing challenge to the redistricting plan.” App. 4n, To the extent the court meant the Shaw court did not resolve the 
  

' A party may be bound by ¢ prior Judgment, evon though he himwesié wes not formally named as a party in that prior action, when his Interests wore ¢lorely aligned with thos= of a party to the prior action and thers are other Indicla that the PRrly Was serving as the non-party's "viral representative” in the prior action. Ske Ahng v, Alistae!, Ine,, 96 F.3d 1033, 1037 (CA7 1996), Chase Manhattan Bank, N.A. v, Celotex Corp, 56 F.3d 343, 145.45 (CA2 1998); Gonzales v. Banco Cont, Corp, 27 F.3d 78 1, 761 (CAI 1994); Nordhorn v, Ladish Co, 9 F.3d 1402, 1405 (CA9 1993); Royal Ins. Co, of Am. v. Qulrn-L Capital Corp., 960 P.2d 1286, 1297 (CAS 1992), Jaffree v, Wallace, R17 F 24 1161, 1467-68 (CAL 1988). The relationship béiween the Shaw pleintiffs and the four appsliants who challenge District 12 in (his action has many of the clesslc [ndlcia of “virtual representation: close relationships betwesn the parties and the nonpartlcs, shared counsel, simultansous litigation gecking the same basic relief under the game basic Jegsl theory, and apparent tactical maneuvering tv aveld praclusion, See Jaffee, 837 F.2d m 1457, 

 



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issue of the 1997 plan’s constitutionslity, it was mistaken." To the extent the court meant only that the Shaw plaintiffs chose to assert no challenge to the 1997 plan in those earlier proceedings, it missed the central point of the doctrine of claim preclusion, which bare clajms that were or should have been brought in the prior proceedings. The district court's holding on the preclusion issue presents substantial questions warranting plenary consideration or sum mary reversal, The distriet court’s decigion conflicts directly with this Court's casos defining the preclusive effect of a prior federal judgment, As those decisions make plain, when a federal court enters a final Judgment, that judgment stands as an “absolute bar” to a subsequent 
action concerning the same “claim or demand” between the same 
parties and those in privity with them, “not only as to every matter 
Which was offered and received to sustain or defeat the claim or 
demand, but [alse] as to any other admissible matter which might 
have been offered for that purpose,” Cromwell v. County of Sac, 94 
U.S. 351, 352 (1876). 

The district court's decision also conflicts with Federated Dep't 
Stores, Inc. v. Moirie, 452 U.S, 394 (1981). In that case, this Court 
made clear that a federal court may not refuse to apply the doctrine of 
  

"* The Shaw court did no expressly resatye the claims in question for tesolution 
In & later proceeding. Though the Shaw plaintiffs asked it to “dlsmins the action without prejudice 10 the tight of any person having ttanding to bring 8 new action 
attacking the constitutionality of the [1997] plan,” App, {183n] the coun dealined 10 do so, While the coun stated that i(s approval of the plan was neeesserlly 
“limited by the dimensions of this civil action we that Is defined by the parties and the claims properly before us,” and that It therefore did not “run beyond the plan's remedial adequacy with respect to those parties,” it specifically held the plan 
constitutional “as to the plalntiffx. . . In this case.” App. 167s, 160a. The only claim the court dismlssed “without prejudice” was “the claim added by amendment (o the complaint in this action on July 12, | 996,” in whieh the Shaw plaintifTe “challenged on "racial gerrymandering’ grounds the creation of former congressional Disirlcy 1." App. 1388, As the court recognized, this claim was mooted by its approval of the 1997 plan, App. 163g, 1588, - 

 



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claim preclusion simply because it believes the prior judgment to be wrong. /d. at 398. As this Court explained, the doctrine of clajm preclusion serves “vital public interests beyond any judge’s ad hoc determination of the equitles of a particular case,” including the interest in bringing disputes to an end, in conserving séarce judicial resources, in protecting defendants from the expense and vexation of multiple duplicative lawsuits, and in encouraging reliance on the court system by minimizing the possibility of inconsistent judgments. /4. at 401. The district court's decision here =- a transparent ettempt to correct a perceived error in an earlier Judgment that the losing party failed to appeal «- flies in the face of this bedrock principle of our clvil justice system 4 
The policies behind the doctrine of claim preclusion are at their 

most compelling when the ¢laims in question seek to Interfere with a 
State’s electoral processes. The strong public interest in the orderly administration of the nation’s electoral process requires efficlent and 
decisive resolution of any disputes regarding these matters." In this 
case, the district court's disregard of basic principles of claim 
preclusion has resulted in the entry of two dramatically inconsistent 
Judgments -- one ordering the State to go forward with its 

    

** In addltion, the district court's decision sonflicts, at least in principle, with the decisions of et least six federal elroult cone which have endorsed the “virtual reprasentation” theory of privity, See cages cited supra note |, This conflict is [Thustrative of the widesproud confusion In the lower federal courts us to the proper 
scope of the “virtual representation” doctrine, Sze 18 Maore's Federal Practice $ 
131.4003] [)[1](B] (collecting cases); 18 C, Wright, A, Miller & E. Cooper, Federal 
Praciice and Procedure § 4457 (same). 

" Precincly for this reason, Congress has provided for a right of direct appeal lo this Court from any order of 8 three-judge coun granting or denying a request for injunerlve relief fn ny civil action challenging the comstltutionallty of the apportionment of congressional districts or the apportionment of any statewide legielative body, See 28 U.S.C, § 1253; 28 U.S.C, § 2284(n). 

 



    

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congressionel elections under the 1997 plan and the other enjoining it from doing so =- which have Jeft the State’s electoral process in disarray, It has significantly prolonged final resolution of the legal controversy over the constitutionality of North Carolina's congressional districts, wasting judicial resources, diverting the stata legislature from the business of governing, and causing the State's taxpayers to incur significant additional expense. It is difficult to imagine a greater affront to the policies behind the doctrine of ¢laim preclusion, to core prineiples of state sovereignty and federalism, and to the very integrity of the federal system of justice itself. The district court's resolution of the preclusion issue is so flatly 
inconsistent with this Court's precedents that summary reversal Is 
warrafited, even if this Court concludes that the caso does not present 
issues warranting plenary consideration, 

III. PREDOMINANCE ISSUE. 

In Shaw 1, 509 U.S. 630 (1993), this Court first recognized thst 
a facially race-neutral electoral districting plen could, in certain 
“exceptional” circumstances, be a “racial classification” that was 
subject to strict scrutiny under the equal protection clause. 509 1.5, 
at 642.44, 646-47, 649. Two years later, in Miller, this Court set forth 
the showing required to trigger strict scrutiny of such a districting 
plan: “that race for its own sake, and not ether districting principles, 
was the legislature's dominant and controlling rationale in drawing 
its district lines.” $15 U.S. at 913 (emphasis added), To satisfy this 
standard, a plaintiff must prave that the legislature “subordinated 
traditional race-neutral districting principles , . , to racial 
considerations,” so that race was “the predominant factor” in the 
design of the districts. Jd. at 916; see id. at 928-29 (O'Conner, 1. 
concurring) (strict scrutiny applics only when “the State has relied on 
race in substantial disregard of customary and traditional [race- 
neutral] districting practices”), 

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In Miller, this Court recognized that “[fledera) court review of districting legislation represents a serious intrusion on the most vital of local functions,” that that redistricting legislatures are almost always aware of racial demographics, and that the distinction between “being aware of racial considerations and being motivated by them" is often difficult to draw. S15 U.S, at 915-16, For these reasons, this Court directed the lower courts to “exercise extraordinary caution” in applying the “predominance” test. Jd, at 916; see id. at 928-29 
(O'Connor, J. concurring) (stressing that the Miller standard is a 
“demanding” one, which subjects only “extreme Instances of [racial gerrymandering” to strict serutiny) 

In its various opinions in Bush, 517 U.S. 952 (1996), this Court 
made clear thet proof that the legislature considered race as a factor 
in drawing distriet lines Is not sufficient, without more, to trigger 
strict scrutiny, See §17 U.S, at 958 (plur. op.); Id. at 993 (O'Connor, 
J., concurring); id. at 999-1003 (Thomas, J, joined by Sealia, J., 
concurring in judgment), Nor is proof that the legislature neglected 
traditional districting criteria sufficient to trigger striot scrutiny. See 
id. at 962 (plur. op.); id. at 993 (O'Connor, J., concurring); id. at 
1001 (Thomas, J,, joined by Scalia, J., concurring in judgment), 
Instend, strict scrutiny applies only when the plaintiff establishes oth 
that the State “substantially” neglected traditional districting criteria 
in drawing district lines, and that it did so “predominantly” because 
of racial considerations. See /d. at 962-673 (plur. op.) and at 993-94 
(O'Connor, I, concurring) (emphasis added). decord Shaw ll, S17 U.S. ut 906-07; Lawyer v. Justice, 117 §. Ct. 2186, 2194.95 (1997). In this case, the North Carolina legislature, exercising the State's 
sovereign right to design its own congressional dintricts, selected a 
number of traditional -- and race-neutra] «= districting criteria to be 
used in constructing the 1997 plan: contiguity, respect for political 
subdivisions, respect for actual communities of interest, preserving 
the partisan balance in the State's congressional delegation, 
preserving the cores of prior districts, end avoiding contests between 

 



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incumbents, All of these criteria Were ones that thiz Court had previously approved ag legitimate districting criteria," The legislature did not, however, select geographic compactness as a eriterion to bw wad in drawing the plan. The 1997 plan as drawn does not neglect any ofthe traditional race-neutral districting criteria the lagislature set out to follow; to the contrary, it substantially complies with all of 
them, 

The district court nonetheless concluded thet the legislature “disregarded traditiona/ districting criteria” in designing District 12, because it failed to comply with two race-neutral districting principles 
that it hever purported to be following -- specifically, the criteria of 
“geographical integrity” and “com pactness,” App. 21a-22a, The court 
believed the legislature's apparent disregard of these particular 
districting principles in drawing District 12, together with evidence 
that the district “include(s] nearly all of the precincts with African- 
Americen population proportions of over forty percent which lie 
between Charlotte and Greansboro,” and that jt “bypasse[s]"” certain 
precincts with large numbers of registered Democrats, established that 
race, rather than partisan political preference, had been the 
predominant factor in the design of District 12. App. 19a-21a. This 
extreme misapplication of the threshold test for epplicetion of strict 
konutiny in a case of such importance to the people of North Carolina 
warrants plenary review for at least four reasons. 

First, the distriet court's reliance on District 12's relative lack of 
geographic compactness and geographical Integrity was based on a 
fundamental misunderstanding of the nature and purpose of the 

  

' See Miller, $15 U.8. at 916 (contiguity, respect for political subdivisions, and 
respect for communities defined by shared interests other than race): Gaffiwy v, Cummings, 412 U.S, 735, 751-54 ( 1973) (preserving partisan balance); Karcher v. 
Daggent, 462 U.S, 728, 740 (1983) (preserving the coren of prior disirlets and 
avoiding contests between incumbents); Reynolds v. Sims, 377 U.S, 533, 830 (1964) 
(ensuring “access of citizens to their represematives”). 

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“disregard for traditional districting criteria" aspect of the Afil/er test,” An this Court has explained repeatedly, & State's deviation from traditional race-neutral districting criteria is important in thiz context only because it may, when coupled with evidence of racial demographies, serve as “eircumstantial evidence” that “race for its 
own sake, and not other districting principles, was the legislature's 
dominant and controlling rationale in drawing district lines.” Miller, 
S15 U.S. at 913; /d. at 914 (“discloses a racial design"); Bush, 517 
U.S. at 964 (plur, op.) (“correlations between racial demographics and 
[irreguler] district lines,” if not explained “in terms of non-racial 
motivations,” tends to show “that race predominated in the drawing 
of district lines”), The notion is that when the State casts aside the 
race-neutral criteria it would normally apply in districting to draw a 
majority-minotity district, it is very likely to have done so for 
predominantly racial ressons. Shaw 1,509 U.S, at 647 (“dramatically 
irregular shapes may have sufficient probative force to call for an 
explanation") (intemal quotations omitted). Por this Inquiry to serve 
its purpase, it must focus not on the degree to which the challenged 
district deviates from some set of race-neutral districting principles 
that a hypothetical state -- ora federal court -- might find appropriate 

  

"Indeed, this misunderstanding of the “traditional race-neutral districting criterla” 
to which Miller refers drove the district court to the otherwise Inexplicable 
conclusion that plaintiffs had established -- a5 a matter of law «= that race wes the 
predominant factor in the design of Disrict 12, but that they had not established .- 
Bs A matter of law -- that Jt was the predominant factor In the design of Distriet 1. 
App, 178-220. The evidence that racial considerations had played a significant role 
In the line-drawing process was much stranger with respect 10 District | than 10 
District 12, for it was undisputed thet Distrlet 1 Is & majority-minority district 
enacted lo avoid a violaton of § 2 of the Voting Rights Act, The only conceivable 
explanation for the district court's conclusion that District |3 was a racial 
gerrymander as a matter of Jaw, but District | was nol, waa its perception that 
Distriey 1 was not as “irregular” as Diswlct §2 and had betier “comparative 
compactness Indicators,” App. 13x-14a. 

 



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in designing a plan, but rather on the precise set of race-nevtral districting principles that the particular state would otherwise apply in designing its districts, were it not pursuing a covert racial objective. Quilter, 981 F. Supp, at 1046 n.10 (characterizing the inquiry as “designed to identify situations in which states have neglected the criteria they would otherwise consider in pursuit of race-based 
objectives"). 

In this case, the district court evaluated District 12's compliance with traditional race-neutral districting eriteria by reference to two such criteria thet the people of North Carolina have mor tequired their 
legislature to obgerve In districting: “geographic compactness” and 
“geographical integrity.” In so doing, the district court apparently 
relied on this Court's frequent references to compactness as a 
traditional race-neutral districting eriteria. See, e.2., Shaw 1, 509 U.S. 
at 647; Miller, $15 U.S, at 916; Bush, $17 U.S. at 959-66 (plur. op.). 
But this Court hes never indicated that the race-neutra] districting 
criteria it has mentioned in its opinions are anything but {llustrations. 
See, 6.2, Miller, 515 1).S. at 916 (describing “traditional race-neutral 
districting principles” as “including but not limited 10 compactness, 
contiguity, [and] respect for political subdivisions or communities 
defined by actual shared interests"). Nor has this Court ever Indicated 
thet a state's devistion from abstract numerical megsures of 
compactness has any probative value whatsoever when the state in 
question does mot have a stated goal of drawing compact districts * 
  

" Indeed, this Court's recent decision In Lawyer v. Deparimen( of Justies, 117 5, Ct. 2186 (1997), supgests precisely tre opposite. In Lawyer, the plaintiffs presented evidence that the challenged state (cglslative district encompassed more than one 
county, ¢roescd a hody of water, was Irregular jn shape, and lacked geographic compactness. /d. at 2195. The district coun found this evidenes Insufficient 10 
establish that tradition! districting principles had been subordinated to race in tho district's design, becruse these were all “common characteristics of Florida loglslative districts, being products of the Siate’s geography and the fact that 40 Senate districts are suporimposed on 67 counties,” Jd, (paraphrasing distrlot court's 

 



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The district court's decision effectively requires sll stares with racially-mixed populations to comply with “objective” standards of geographic compactness in drawing their congressional and legislative districts, Such a requirement is flatly inconsistent with this 
Court's repeated statements that geographic compactness is not a constitutionally~-mandated districting principle. See Bush, S517U.8. at 
962 (plur. op.); Shaw I, S09 U.S. at 647. It also conflicts directly with 
this Court's long-standing recognition that the Constitution accords 
the States wide-ranging discretion to design their congressional and legislative districts us they see fit, 60 long as they remain within 
constitutional bounds, See Voinovich v, Quilter, S07 U.8, 146, 156 
(1993); Wise v, Lipscomb, 437 U.S. 535, §39 (197R). Surely this 
means thet the States are entitled to decide which particular race- 
neutral districting criteria they will emphasize in drawing their 
districts, without wortying that strict scrutiny will apply if some 
fedoral judge disagrees with their choices?! 

Second, the district court's decision conflicts directly with this 
Court's deciion in Bush. There, a majority of this Court made clear 
that a district is not subject to strict scrutiny simply because there is 
some correlation between its lines and racial demographics, if the 
evidence establishes that those lines were in fact drawn on the basis 
of political voting preference, rather than race. §17 1.8. at 968 (plur. 
op.) (“If district lines merely correlate with race because they are 
—— 
  

opinion) (emphasis added), This Count upheld that finding, on the ground that the 
"wnrefuted evidence shows) that on each of these points, District 21 Is no differen 
from what Flartda 's traditional districting principles could be expected to produce.” 
/d, (emphasis added). 

This Is not to suggest, of course, that a state ould avoid the strjet serutiny of 
Shaw and Miller simply by choosing to establish “minimal or VAguo oriteria (or perhaps none at ull)” so that “it could never be found to have neglected or subordinated these criteria 10 race,” Quilter, 981 F, Supp. st 1081 n.10. But that |e not whet the Statc of North Carolina did here, 

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drawn on the basis of political affiliation, which correlates with race, there is no racial classification to justify, just as racial disproportions in the level of prosecutions for a particular crime may be unobjectionsble if they merely reflect racia| disproportions in the commission of that crime.”); id. at 1027-32 (Stevens, J., joined by Ginsburg and Breyer, JJ, dissenting); /d, at 1060-61 (Souter, ) 

Joined by Ginsburg and Breyer, 11, dissenting). Contrary to the district court’s suggestion, this Is not a situation like that in Bush, where the state has used race as a proxy for politica! characteristics in Its political gerrymandering. Instead, the undisputed evidence in the summary judgment record showed thet the State used political characteristics themselves, not racial date, to draw the lines. The 
legisleture’s use of such political data to accomplish otherwise 
legitimate political gerrymandering will not subject the resulting 
dietrict to strict scrutiny, “regardless of its awareness of its racial 
implications and regardless of the fact that it does sa in the context of 
8 majority-minority district.” Jd, at 968 (plur. op.); 1d. at 1027.32 
(Stevens, J., joined by Ginsburg and Breyer, JJ, dissenting); id. at 
1060-61 (Souter, J., joined by Ginsburg and Breyer, JJ » dissenting). Third, the district court’s decision raises substantial, unresolved 
questions concerning the circumstances under which a plaintiff can 
satisfy the threshold test for strict scrutiny based solely on an 
inference. drawn from = district's shape and racial demographics. Miller held that a plaintiff can prove the legislature's predominantly 
racial motive with either “circumstantial evidence ofa distriet’s shape 
and demographics or more direct evidence going to legislative purpose.” 515 U.S. at 916, In all of its prior cases finding the threshold test for strict scrutiny met, however, this Court has relied heavily on substantial direct evidence of legislative motivation. Jd, at 
918 (relying on the State's § 5 submissions, the testimony of the 
individual state officials whe drew the plan, and the State's formal 
concession that it had deliberately set out to create majority-minority 
districts in order to comply with the Department of Justice's “black 

 



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maximization” policy); Bush, $17 U.S. at 959-61, 969-71 (plur, op.) (same); /d. at 1002 & n.2 (Thomas, J, concurring in the judgment) (same); Shaw II, S17 U.S, at 906 (seme). Aw a result, this Court has never confronted the question of how much circumstantial evidence is enough to satisfy the Miller predominance standard, jn the absence of any ditect evidence of racial motivation. Miller, $15 U.S. at 917 (specifically reserving this issue). 
The plaintiffs in this case, unlike thoge in Miller, Bush, and Shaw J1, base their claim that race was the predominant factor in the design of Districts 12 solely on circumstantial evidence of shape and racial demographics, Yet thoir circumstantial evidence is decided|]y less powerful than that presented by their counterparts in Miller, Bush, 

and Shaw JI, First, and most fundamentally, the distriet they challenge 
is not a majority-minority district, as wore the districts at jesus | those cases, This Court's recent decision in Lawyer, which rejected 
a claim thet a challenged Florida state senate district was a racial 
gefrymander, makes clear that this is sn important distinction, 1178, 
Ct, at 2191, 2195 (emphasizing that the challenged district was not 
majority-black); id, at 2195 (noting that “similar racial composition 
of different political districts” is not “necessary to avold an inference 
of racinl gerrymandering in any one of them."). In addition, the shape 
of the district challenged here, though somewhat irregular, does not 
reveal “substantial” disregard for traditional race-neutra] districting 
principles. Finally, the undisputed evidence here established that the 
  

"In sharp contrast to former District 12, which this Court invalidated [n Show /, 
current District 12 is contiguous, respects the Integrity of politica! subdivisions to the extent reasonably pessible, and creates a community of Interest defined by vriterla other than ace, While It has relatively low dispersion and perimeter compaciness measures, this ls Insufficient 10 support a finding that the legislature 
“substantially” disregarded raditiona] districting crlterla In designing It, even if geographic compactness can bs considered one of the State's "traditional distrlating criteria.” Quilrer, 981 F. Supp. at 1048 (expressing “doubt” thet u stete's neglect of one of its many traditional districting eritetia “would be sufficient to show the kind 

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racial data the legislature used in designing these districts was no more detailed than the other demographic data it used, Compare Bush, $17 U.S. at 962-67, 969-71, 975.76 (plur. op.) (finding legislature's use of racial data that Was significantly more detailed then its data on other voter demographics strong circumstantial evidence that race had been its predominant consideration in designing the challenged districts). 
On this record, thers is a substantial question whether plaintiffs’ evidence of shape and racial demographics is sufficient to support an inference that race was the predominent factor in the design of District 12. Indeed, the evidence of shape and demographics here 

closely resembles that offered by the plaintiffs in Lawyer, which this 
Court found Insufficient to support an inference of racial 
gerrymandering, 117 8, Ct. at 2195, In addition, the State defendants 
rebutted any such inference with substantial direct evidence that 
partisan political preferance, and not race, had been the predominant 
factor In the district's design. Under this Court's decisions, that 
ghould hava been sufficient to aveld strict scrutiny, in the absence of 
any direct evidence of racial motivation, Shaw 1,509U.8, at 653, 658 
(indicating that State can aveid strict scrutiny by “contradicting” the 
inference of racial motivation that arises from plaintiffs’ evidence of 
shape and racial demographics); Miller, 515 U.S. at 916 (strict 
scrutiny does not apply where the state establishes that “race-neutral 
considerations are the basis for redistricting legislation, and are not 
subordinated to race”)? 

  

of flagrant disregard that would Indicate that traditional districting principles were 
subordinated to racial objectives, sbsent evidence that other principles were neglected), 

* In an analogous “mixed motives” situation -~ the [ndividunl disparate treatment case under Title VII -- four members of this Court hava endorsed = rule that weuld require plaintiff to produce “direct evidence” that the impermissibly criterion was a substantial motivating factor in tha challenged decisian In order to prevail, Price 

 



    

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Finally, the district court's decision sets far too low a threshold 
for subjecting a State's districting efforts to strict «- and potentially 
fatal -- constitutional review. Under its reasoning, a private plaintiff 
can trigger strict scrutiny of a state redistricting plan simply by 
showing that its districts are somewhat irregular in shape and that 
some of them have heavier concentrations of minority voters than 
others, If strict scrutiny is this emsily triggered, the states «. 
particularly those are subject to the preclearance requirements In § S 
of the Voting Rights Act -- will find themselves in an impossible 
bind. If they take race into account in districting, in order to avoid 
violating the Voting Rights Act, they face private lawsuits under the 
equal protection clause; but if they do not, they face both denial of 
preclearance under § S of the Voting Right Act and private lawsuits 
under § 2. Bush, 517 U.S. at 990-95 (O'Conner, J » Concurring) 
(noting the tension between the Voting Rights Act, which requires the 
stated to consider rage in districting, and the Fourteenth Amendment, 
which requires courts “io look with suspicion on the[ir] excessive use 
of racial considerations). Nearly every plan they draw will be subject 
to challenge on one ground or the other, nearly every plan will be the 
subject of protracted litigation in the federal courts, and the federal 
caurts will become the principal architeets of the congressional and 
legislative districting plans of every State. This Court should not 
tolerate such an unprecedented intrusion by the federal judiciary into 
this “most vital” aspect of state sovereignty, Miller, 515 U.S. at 915. 

The district court's extreme misapplication of the threshold test 
for strict serutiny illustrates the need for this Court to provide 
additional guidance on its proper application in ceses where there is 
no direct evidence of racial motivation, the district in question is not 
a majority-minority district, and it does net substantially disregard the 
State’s stated race-neutral districting criteria. This situation will arise 
  

Waterhousa v. Hopkins, 490 10.8. 228, 275.76 (1989) (O'Connor, J, concurring); 
Id, at 290 (Kennedy, J., Joined by Rehnquist, C.J. and Scalls, J., dissenting), 

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with some frequency in the next round of Shaw cases, particularly In 
states like North Carolina which remain subject to a realistic threat of 
liability under § 2 of the Voting Rights Act if they do not pay slose 
attention to racial fairness in districting. As Justice O'Connor 
recognized in Bush, those States -- and the lower courts -- are entitled 
to “more definite guidance as they toil with the twin demands of the 
Fourteenth Amendment and the Veting Rights Act.” 517 U.&. at 990 
(O'Connor, J., concurring). 

CONCLUSION 

For the forgoing reasons, this Court should summarily reverse the 
April 6, 1998 judgment of the district court and remand the case for 
trial. In the alternative, this Court should note probable jurisdiction of 
their appeal. 

Respectfully submitted, 

MICHAEL F. EASLEY 
North Carolina Attorney General 

Bdwin M. Speas, Jr.* 
Chief Deputy Attorney General 

Tiare B. Smiley 
Special Deputy Attorney General 

Melissa Saunders 
Special Counsel to Attorney General 

July 6, 1998 *Counsel of Record 

WOON EN Deo ke 

B032 
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» 

FERGUSON, STEIN, WALLAS, ADKINS, GRESHAM & SUMTER, P.A. 
312 West Franklin Street Chapel Hill, NC 27516 * Phone (919) 933-5300 « Fax (919) 967-4953 

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Date: _06 16 hang TIME: pS AMEM ) 

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RE: 

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06/26/98 FRI 12:16 FAX 919 967 4953 FERGUSON STEIN [doo2 

FROM NC RS SFECIAL Lirraclf 919-716-6763 sibaoce’ id 

State of North Carolina 
Department of Justice 

P.O. Box 820 MICHAEL P, RASLEY RALEIGH 

FAX TRANSMISSION 

w_ ADAM JTeV 
FAX NUMBER: NG. OE PACE: BD / 

    

  

  

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SUBJECT; 

COMMENTS: R oe DRAFT, 
[ / 

V Re L Lope fo a 1 neat : 

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\WHI BFL PoRMIPAX, SHY