Defendant-Intervenors' Response to Plaintiffs' First Set of Interrogatories to Defendant-Intervenors

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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF NORTH CAROLINA 

RALEIGH DIVISION 

Civil Action No. 4:96-CV-104 

MARTIN CROMARTIE, et al. 

Plaintiffs, 

v. 

JAMES B. HUNT, JR, et al., 

Defendants, 

and 

ALFRED SMALLWOOD, ef al. 

Defendant-Intervenors 

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DEFENDANT-INTERVENORS’ RESPONSE TO PLAINTIFFS’ 
FIRST SET OF INTERROGATORIES TO DEFENDANT-INTERVENORS 

Pursuant to Rule 33 of the Federal Rules of Civil Procedure, Defendant-intervenors Alfred 

Smallwood, David Moore, William M. Hodges, Robert L. Davis, Jr., Jan Valder, Barney 

Offerman, Virginia Newell, Charles Lambeth and George Simkins (“Smallwood Intervenors”) 

submit the following answers in response to Plaintiffs’ First Set of Interrogatories to Defendant- 

Intervenors. 

Interrogatory No. 1 
  

If you claim that the First Congressional District in the 1992 Plan was not drawn in 

violation of the Equal Protection Clause of the Fourteenth Amendment, please state the grounds 

for that claim, including whether race predominated in its creation, what compelling government 

interests led to its creation, and how it was narrowly tailored to serve these interests? [sic]  



oo od 

Response to Interrogatory No. 1 
  

The Smallwood Intervenors object to this interrogatory because the interrogatory is 

irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. To the 

extent the Smallwood Intervenors are able to answer this interrogatory and without waiving their 

objections, supra, the Smallwood Intervenors respond as follows: 

This case is a challenge to the First and Twelfth Congressional Districts of North 

Carolina’s 1997 congressional reapportionment plan, 1997 N.C. Sess. Laws., Ch. 11 (“1997 

Plan”). The constitutionality of the First Congressional District in the 1992 North Carolina 

reapportionment plan, Chapter 7 (1991 Extra Session) (“1992 Plan”), is not at issue in this case. 

The Smallwood Intervenors make no claim with respect to the constitutionality of the 1992 Plan. 

Interrogatory No. 2 
  

If the court should find that race predominated in the creation of the 1st District in the 

1997 plan and that therefore the 1st District is subject to strict scrutiny, list all compelling state 

interests you contend that the state of North Carolina has which led to the configuration of the 1st 

District in the 1997 plan and explain how the 1st District of the 1997 plan is narrowly tailored to 

serve each such interest. 

Response to Interrogatory No. 2 
  

There were many factors, especially political concerns, that were considered by the 

General Assembly in conducting the 1997 redistricting. In addition to partisan and political 

concerns, the legislature also had before it a record containing a strong basis for the general 

assembly to believe that it was required by Section 2 and Section 5 of the Voting Rights Act, 42 

U.S.C. §§ 1973 and 1973c (“Section 2” or “Section 5”) to create a majority-African-American  



  

»" ” 
Congressional district. The record included the historical exclusion of black voters, continuing 

racial appeals in North Carolina election contests, the socio-economic disparities affecting 

African-American voters’ opportunities to participate in the political process, the lack of success 

of African-American candidates, and the continuing prevalence of racially polarized voting. 

The General Assembly was aware of the following history. For nine decades, from 1901 

until 1992, no African-American candidate had been elected to Congress in North Carolina, even 

when they enjoyed the overwhelming support of African-American voters. Moreover, African- 

American voters had been disenfranchised as a result of conscious, deliberate and calculated state 

laws that both denied African-American voters access to the ballot box and effectively diluted 

their votes. The State utilized measures such as poll taxes, literacy tests, anti-single shot voting 

laws, and at-large and multi-member election districts to exclude African-Americans from the 

political process. Specifically, with regard to congressional districting, in its 1970 and 1980 

reapportionment plans, the General Assembly intentionally fragmented the African-American vote 

in the northeastern portion of the state to make sure African-American voters could not garner 

enough support to elect their preferred candidate to Congress. Also, racial appeals in campaigns 

were used by white candidates to dissuade white voters from supporting African-American 

candidates. 

The legislative record also showed present effects of this history. To this day, the ability 

of African-American voters to participate in congressional elections has continued to be hindered 

by the persistent effects of past official discrimination. For example, the legacy of literacy tests, in 

use until the mid-1970’s, and poll taxes continues to be reflected in the fact that African-American 

voters are registered to vote in lower percentages than white voters. African-American voters as 

 



  

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

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

counterparts, which adversely affects their ability to participate effectively in the political process. 

The members of the General Assembly had evidence that elections in North Carolina in the 

1990s are still marked by direct appeals to race designed to discourage white voters from voting 

for African-American candidates. In fact, in 1990, large numbers of qualified African-American 

voters were anonymously sent post cards which misrepresented state law and threatened them 

with criminal prosecution if they tried to vote after having recently moved. 

Information before the General Assembly showed that in North Carolina elections, white 

voters tend not to support the candidates of choice of African-American voters. In this century, 

no African-American candidate other than Ralph Campbell, State Auditor, has ever won a 

statewide election contest for a non-judicial office. No single-member majority-white state 

legislative district has ever elected an African-American candidate to the state legislature. A study 

of 50 recent elections in which voters have been presented with a choice between African- 

American and white candidates, including congressional elections, statewide elections and state 

legislative elections, found that 49 of the 50 were characterized by racially polarized voting. In 

every statewide election since 1988 where voters were presented with a biracial field of 

candidates, voting patterns indicated significant white-bloc voting. In all except two low-profile 

contests, racially polarized voting was sufficient to defeat the candidate chosen by African- 

American voters. 

The legislative record also showed that a pattern of racially polarized voting continued in 

the 1996 U.S. Senate campaign between Harvey Gantt and Jesse Helms. The regression and 

 



  

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homogeneous precinct analyses show that statewide, Gantt received between 97.9 percent and 

100 percent of the African-American vote, but only 35.7 percent to 38.1 percent of the non- 

African-American vote. The Smallwood Intervenors contend that the 1998 elections corroborate 

these findings regarding a continuing pattern of racially polarized voting in North Carolina. 

The record before the General Assembly also showed that the African-American 

population in north eastern North Carolina was large and geographically compact enough to 

comprise a majority in a single-member district. See also Response to Interrogatories 5, 6, and 7. 

Given this record evidence of historic and current exclusion of African-Americans from 

the political process, the State of North Carolina had a compelling justification to comply with 

Section 2 and Section 5 of the Voting Rights Act. Such a compelling justification has been 

recognized by the U.S. Supreme Court, as well as district courts. See, e.g., Shaw, 517 U.S. 899, 

914 (1996). 

Interrogatory No. 3 
  

If the court should find that race predominated in the creation of the 12th District in the 

1997 plan and that therefore the 12th District is subject to strict scrutiny, list all compelling state 

interests you contend that the state of North Carolina has which led to the configuration of the 

12th District in the 1997 plan and explain how the 12th District of the 1997 plan is narrowly 

tailored to serve each such interest? [sic] 

Response to Interrogatory No. 3 
  

There were many factors, especially political concerns, that were considered by the 

General Assembly in conducting the 1997 redistricting. In addition to partisan and political 

concerns, the legislature also had before it a record containing evidence of the historical exclusion 

 



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of black voters, continuing racial appeals in North Carolina election contests, the socio-economic 

disparities affecting African-American voters’ opportunities to participate in the political process, 

the lack of success of African-American candidates, racial appeals, and the continuing prevalence 

of racially polarized voting. 

The General Assembly was aware of the following history. For nine decades, from 1901 

until 1992, no African-American candidate had been elected to Congress in North Carolina, even 

when they enjoyed the overwhelming support of African-American voters. Moreover, African- 

American voters had been disenfranchised as a result of conscious, deliberate and calculated state 

laws that both denied African-American voters access to the ballot box and effectively diluted 

their votes. The State utilized measures such as poll taxes, literacy tests, anti-single shot voting 

laws, and at-large and multi-member election districts to exclude African-Americans from the 

political process. Specifically, with regard to congressional districting, in its 1970 and 1980 

reapportionment plans, the General Assembly intentionally fragmented the African-American vote 

in the northeastern portion of the state to make sure African-American voters could not garner 

enough support to elect their preferred candidate to Congress. Also, racial appeals in campaigns 

were used by white candidates to dissuade white voters from supporting African-American 

candidates. 

The legislative record also showed present effects of this history. To this day, the ability 

of African-American voters to participate in congressional elections has continued to be hindered 

by the persistent effects of past official discrimination. For example, the legacy of literacy tests, in 

use until the mid-1970’s, and poll taxes continues to be reflected in the fact that African-American 

voters are registered to vote in lower percentages than white voters. African-American voters as  



ps we 

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

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

counterparts, which adversely affects their ability to participate effectively in the political process. 

The members of the General Assembly had evidence that elections in North Carolina in the 

1990’s are still marked by direct appeals to race designed to discourage white voters from voting 

for African-American candidates. In fact, in 1990, large numbers of qualified African-American 

voters were anonymously sent post cards which misrepresented state law and threatened them 

with criminal prosecution if they tried to vote after having recently moved. 

Information before the General Assembly showed that in North Carolina elections, white 

voters tend not to support the candidates of choice of African-American voters. In this century, 

no African-American candidate other than Ralph Campbell, State Auditor, has ever won a 

statewide election contest for a non-judicial office. No single-member majority-white state 

legislative district has ever elected an African-American candidate to the state legislature. A study 

of 50 recent elections in which voters have been presented with a choice between African- 

American and white candidates, including congressional elections, statewide elections and state 

legislative elections, found that 49 of the 50 were characterized by racially polarized voting. In 

every statewide election since 1988 where voters were presented with a biracial field of 

candidates, voting patterns indicated significant white-bloc voting. In all except two low-profile 

contests, racially polarized voting was sufficient to defeat the candidate chosen by African- 

American voters. 

The legislative record also showed that a pattern of racially polarized voting continued in 

the 1996 U.S. Senate campaign between Harvey Gantt and Jesse Helms. The regression and  



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homogeneous precinct analyses show that statewide, Gantt received between 97.9 percent and 

100 percent of the African-American vote, but only 35.7 percent to 38.1 percent of the non- 

African-American vote. The Smallwood Intervenors contend that the 1998 elections corroborate 

these findings regarding a continuing pattern of racially polarized voting in North Carolina. 

Given this record evidence of the historic and on-going exclusion of African-American 

voters from the political process, as well its awareness of the findings regarding racially polarized 

voting in Thornburg v. Gingles, 478 U.S. 30 (1986), the State of North Carolina had a 

responsibility to recognize and not split a cohesive African-American voting population in the 

Piedmont region when creating the 1997 plan. Although the General Assembly’s primary goals in 

enacting the 1997 Plan were to correct the prior constitutional violation found in Shaw v. Hunt 

and to preserve the congressional delegation’s partisan balance, the State was also under an 

obligation to fulfill these objectives without diluting minority voting strength. This serves as a 

compelling justification for the creation of District 12 in the area in which the General Assembly 

chose to create it in the 1997 Plan. 

Interrogatory No. 4 
  

Identify any and all witnesses, sources, and documents which you contend support the 

position that the African-American population in northeastern North Carolina is sufficiently large 

and geographically compact to constitute a majority in a single-member North Carolina 

Congressional district? [sic] 

Response to Interrogatory No. 4 
  

The Smallwood Intervenors object to this interrogatory because it is duplicative and 

unduly burdensome. Plaintiffs have full access to the General Assembly's redistricting computer  



oe oe 

system, the 1991, 1992, and 1997 Section 5 submissions, as well as the evidentiary record in 

Shaw v. Reno and Shaw v. Hunt. The information requested is as accessible to plaintiffs as the 

Smallwood Intervenors. To the extent the Smallwood Intervenors are able to answer this 

interrogatory and without waiving their objection, supra, the Smallwood Intervenors respond as 

follows: 

From 1991 through 1997, several maps have been produced which support the position 

that the African-American population in northeastern North Carolina is sufficiently large and 

geographically compact to constitute a majority of the total population in a single-member 

congressional district, including the maps made exhibits in the depositions of Senator Roy 

Cooper, Representative Edwin McMahan, Gerry Cohen and Linwood Jones: Exhibits 5, 6 (and 

its predecessor plans), 7 (the enacted 1997 Plan), 32, 33, 34, 35, 36, 37, 38, 39, 40 and 41 (and 

its predecessor plans), as well as Everett’s Bane 1, 2 and 3 (and other contest maps). Senator 

Roy Cooper, Representative Edwin McMahan, Gerry Cohen and Linwood Jones have been 

designated by defendants and defendant-intervenors as the primary witnesses on this matter. 

Interrogatory No. 5 
  

Identify every redistricting map or plan you are aware of which illustrates the presence of 

an African-American population in northeastern North Carolina that is sufficiently large and 

geographically compact to constitute a majority of the total population in a single member 

Congressional District. 

Response to Interrogatory No. 5 
  

The Smallwood Intervenors object to this interrogatory because it is duplicative and 

unduly burdensome. Plaintiffs have full access to the General Assembly's redistricting computer  



  

   wh 
system, the 1991, 1992, and 1997 Section 5 submissions, as well as the evidentiary record in 

a 

Shaw v. Reno and Shaw v. Hunt. The information requested is as accessible to plaintiffs as the 

Smallwood Intervenors. To the extent the Smallwood Intervenors are able to answer this 

interrogatory and without waiving their objection, supra, the Smallwood Intervenors respond as 

follows: 

From 1991 through 1997, several maps have been produced which support the position 

that the African-American population in northeastern North Carolina is sufficiently large and 

geographically compact to constitute a majority of the total population in a single-member 

congressional district, including the maps made exhibits in the depositions of Senator Roy 

Cooper, Representative Edwin McMahan, Gerry Cohen and Linwood Jones: Exhibits 5, 6 (and 

its predecessor plans), 7 (the enacted 1997 Plan), 32, 33, 34, 35, 36, 37, 38, 39, 40 and 41 (and 

its predecessor plans), as well as Everett’s Bane I, 2 and 3 (and other contest maps). Senator 

Roy Cooper, Representative Edwin McMahan, Gerry Cohen and Linwood Jones have been 

designated by defendants and defendant-intervenors as the primary witnesses on this matter. See 

also Response to Interrogatory No. 6. 

Interrogatory No. 6 
  

Identify every redistricting map or plan you are aware of which illustrates the presence of 

an African-American population in northeastern North Carolina that is sufficiently large and 

geographically compact to constitute a majority of the voting age population in a single member 

Congressional District. 

Response to Interrogatory No. 6 
  

The Smallwood Intervenors object to this interrogatory because it is duplicative and 

10 

 



  

   
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unduly burdensome. Plaintiffs have full access to the General Assembly's redistricting computer 

system, the 1991, 1992, and 1997 Section 5 submissions, as well as the evidentiary record in 

Shaw v. Reno and Shaw v. Hunt. The information requested is as accessible to plaintiffs as the 

Smallwood Intervenors. To the extent the Smallwood Intervenors are able to answer this 

interrogatory and without waiving their objection, supra, the Smallwood Intervenors respond as 

follows: 

From 1991 through 1997, several maps have been produced that illustrate that there is an 

African-American population in northeastern North Carolina that is sufficiently large and 

geographically compact to constitute a majority of the voting age population in a single member 

congressional district, including the 1991 Plan (and its predecessor plans), 96 CONGRESS 

MARTIN 1.0, 2, and 4. 

Interrogatory No. 7 
  

Identify every redistricting map or plan you are aware of which supports or illustrates the 

presence elsewhere in North Carolina of an African-American population that is sufficiently large 

and geographically compact to constitute a majority of the voting age population in a single- 

member North Carolina Congressional district. 

Response to Interrogatory No. 7 
  

The Smallwood Intervenors object to this interrogatory because it is duplicative and 

unduly burdensome. Plaintiffs have full access to the General Assembly's redistricting computer 

system, the 1991, 1992, and 1997 Section 5 submissions, as well as the evidentiary record in 

Shaw v. Reno and Shaw v. Hunt. The information requested is as accessible to plaintiffs as the 

Smallwood Intervenors. To the extent the Smallwood Intervenors are able to answer this 

11 

 



  

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interrogatory and without waiving their objection, supra, the Smallwood Intervenors respond as 

follows: 

The Smallwood Intervenors refer Plaintiffs to maps, data, and information contained in the 

1991, 1992, and 1997 Section 5 submissions. 

Interrogatory No. 8 - WITHDRAWN 
  

List the names of black elected officials in all twenty-six counties in the 1997 Plan 1st and 

12th Districts who were elected during the 1988 to 1996 elections, including elections to county, 

city, school board, or General Assembly positions, together with the black voting age population 

for the jurisdiction from which they were elected. 

Interrogatory No. 9 
  

What, if any, post-1990 census data do you intend to rely onto [sic] establish the existence 

of the Gingles preconditions as to Districts 1 and/or 12? 

Response to Interrogatory No. 9 
  

It is the understanding of the Smallwood Intervenors there is no post-1990 Census data 

upon which to rely except a post-1990 release of socio-economic data by the U.S. Census 

Bureau. The Smallwood Intervenors refer Plaintiffs to the 1997 Section Submission, 97C-27N 

and Attachment 97C-28A, for population projections that were before the General Assembly 

during the 1997 redistricting. 

Interrogatory No. 10 - WITHDRAWN 
  

Describe the circumstances under which you decided to become a participant in this 

lawsuit as a Defendant-Intervenor. 

Interrogatory No. 11 
  

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Do you contend that there are communities of interest among the black voters of the 

Twelfth District? If so, please describe each of those communities of interest and the facts which 

support your contention. 

Response to Interrogatory No. 11 
  

The Smallwood Intervenors contend that the residents of District 12, regardless of race, 

share a distinct community of interest. For example, District 12 is an urban district and the 

residents share common economic interests in areas, including manufacturing, research, banking 

and higher education. The residents are largely employed in blue collar, suburban, and urban 

employment, rather than in agricultural businesses. The interests of the residents of District 12 

are those of a largely urban populous, including urban crime problems, unemployment, the lack of 

educational opportunities for low-income residents, and housing and economic development 

concerns. 

Interrogatory No. 12 
  

Do you contend that there are communities of interest among the black voters of the First 

District? If so, please describe each of those communities of interest and the facts which support 

your contentions. 

Response to Interrogatory No. 12 
  

The Smallwood Intervenors contend that the residents of District 1, regardless of race, 

share a distinct community of interest. For example, District 1 is a distinctly rural district whose 

residents are largely poor. The economy of the region in which the district is located is based 

primarily on agriculture and logging and districts residents are employed largely in agricultural 

businesses. The concerns of the residents of District 12 are those of a rural population, including, 

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unemployment and economic development in an environment in which fewer agriculture jobs are 

available due to increased mechanization. 

This 4th day of October, 1999. 

Elaine R. Jones 

President and Director-Counsel 

Todd gt Cox 

NAACP Legal Defense 

& Educational Fund, Inc. 

1444 1 Street, N.W., 10th Floor 

Washington, D.C. 20005 

(202) 682-1300 

(bo fo / 56 
Adam Stein 

Ferguson, Stein, a Adkins 

Gresham & Sumter, PA. 

312 West Franklin Street 

Chapel Hill, North Carolina 27516 

(919) 933-5300 

  

  

 



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CERTIFICATE OF SERVICE 

I hereby certify that true and correct copies of Defendant-Intervenors’ Response to 

Plaintiffs’ First Set of Interrogatories to Defendant-Intervenors have been served by first-class 

mail, postage prepaid to the following: 

Edwin M. Speas, Jr. 

Chief Deputy Attorney General 

Tiare B. Smiley 

Special Deputy Attorney General 

North Carolina Department of Justice 
Post Office Box 629 

Raleigh, North Carolina 27602-0629 

and have been served by telefacsimile and first-class mail, postage prepaid to the following: 

Robinson O. Everett 
Everett & Everett 

Post Office Box 586 

Durham, North Carolina 27702 

\ gl 
Todd A. Cony 

This4 7 Loy of October, 1999.