Brief as Amicus Curiae Supporting Appellants with Certificate of Service

    . No. 99-1864 & Wo 

  

  
  

  
  

  

IN THE SUPREME COURT OF THE UNITED STATES 
    

JAMES B. HUNT, Jr., GOVERNOR OF NORTH CAROLINA, 
ET AL., APPELLANTS 

Vv. 

MARTIN CROMARTIE, ET AL. 
  

ALFRED SMALLWOOD, ET AL., APPELLANTS 

Vv. 

MARTIN CROMARTIE, ET AL. 
  

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA 
  

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING APPELLANTS 
  

SETH P. WAXMAN 
Solicitor General 

Counsel of Record 

  

  

WILLIAM R. YEOMANS 
Acting Assistant Attorney General   

BARBARA D. UNDERWOOD 
Deputy Solicitor General   

JAMES A. FELDMAN 
Assistant to the Solicitor 

General 
  

DAVID K. FLYNN 
LOUIS E. PERAERTZ 

Attornevs   

Department of Justice 
Washington, D.C. 20530-0001 
£202) 514-2217 

  

  

  

  

  

 



QUESTION PRESENTED 

The United States will address the following question: 

Whether the district court applied the correct legal 

standards in finding that race was, the predominant factor in the 

drawing of District 12 of North Carolina's 1997 congressional 

redistricting plan. 

 



IN 4 SUPREME COURT OF THE UNITED STATES 
    

No. 99-1864 

JAMES B. HUNT, Jr., ET AL... APPELLANTS 

Vv. 

MARTIN CROMARTIE, ET AL. 

  

No. 99-1865 

ALFRED SMALLWOOD, ET AL., APPELLANTS 

V. 

MARTIN CROMARTIE, ET AL. 

  

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA 
  

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING APPELLANTS 
  

INTEREST OF THE UNITED STATES 

This case concerns a district court's finding that a state 
election districting plan was drawn predominantly on the basis of 
race, in violation of the Equal Protection Clause of the 
Fourteenth Amendment . The United States enforces Sections 2 and 
> of the Voting Rights Act of 1965 (42: 0.8.C. 1973, 1973¢c), which 
require, in part, that States and political subdivisions not 
engage in voting practices that deny citizens an equal 
opportunity to elect representatives of their choice on account 
of their race. ‘Those statutes sometimes require States to take 
the racial consequences of their districting decisions into 
account. The United States has an interest in ensuring that  



  

2 

States have reasonable leeway to design districts that comply 
with both the Voting Rights Act and the Equal Protection Clause. 
The United States has participated in all three prior appeals in 
related litigation. The United States was a party-defendant in 
Shaw v. Reno, 509 U.S. 630 (1993), and filed briefs as amicus 

curiae in Shaw v. Hunt, 5170.8. .899 (1996), and in Hunt v. 
Cromartie, 526 1.8. 541 (1999) .   

STATEMENT 

1. In Shaw 'v, Hunt, 517 U.S. 899 (1996) (Shaw 1), this 

  

Court struck down North Carolina's 1992 congressional district 
plan anidetithe equal protection clause of the Fourteenth 

Amendment. The Court held that District 12 in that plan had been 
drawn predominantly on the basis of race, 517 U.S. at 907, and 
that it did not satisfy strict scrutiny, id. at 910-9318 

After this Court's decision, the North Carolina General 
Assembly attempted to enact a new districting plan. The state 
Senate had a Democratic majority and the House had a Republican 
majority. State Senator Roy A. Cooper, IIL, and State 
Representative W. Edwin McMahan, the chairmen of the Senate and 
House redistricting committees, provided affidavits and testimony 
detailing the goals and purposes of the committees. J.8S. App. 
B8la-87a, J.A. 179-230 (Cooper); J.8. APP. 137a-154a, J.A. 231-244 
(McMahan) . Among the avowed goals of the committees were "curing 
the constitutional defects of the 1992 Plan by assuring that race 
was not the predominant factor in the new plan" and "drawing the 
Plan to maintain the existing partisan balance." J.8. App. lla. 

 



  

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2 

To achieve that partisan goal, "the redistricting committees drew 
the new plan (1) to avoid placing two incumbents in the same 
district and (2) to preserve the partisan Core of the existing 
districts to the extent consistent with the goal of curing the 
defects in the old plan.” Ibid. 

District 12:4n the 1997 Plan is different from the district 
found unconstitutional ip Shaw II in important respects. As this 
Court noted in its Prior decision in this case, Hunt v. Cromartie 

  

  

(Hunt 1), 526 U.S. 541, 544 (1999), District 12 splits six 
counties, as opposed to ten in the unconstitutional plan. The 
distance between its farthest points has been reduced from 160 
miles to 95 miles. Ibid. African-Americans are no longer a 
majority in the district, constituting approximately 43% of its 
voting age Population, 46% of registered voters, and 47% of its 
population. Ibid. Digtrict 12'is also fully contiguous and, 
unlike the unconstitutional District 12 in the 1992 plan, it does 
not employ artificial devices such as "crossovers" to achieve 
contiguity. Id. at 83a. 

The 1997 Plan was enacted by the legislature on March 31, 
19397, despite an earlier belief by many that the party division 

Representatives voted against the plan. Id. at “1404. 
2.a. Appellees filed an amended complaint alleging that 

Districr 13 under the 1997 Plan is, like its predecessor, an 

 



  

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unconstitutional gerrymander. See Hunt. 1, 526 U.S. at:544." The 

parties filed competing motions for summary judgment and, in 

April 1998, the district court, by.a 2-1 majority, granted 

appellees' motion. Id. at 545; see J.S. App. 243a-282a. 

b. On May 17, 1999, this Court in Hunt I unanimously 

reversed the order granting summary judgment to appellees. The 

Court noted that " [t]he task of assessing a jurisdiction's 

motivation * * x jig an inherently complex endeavor" and that it 

"requir [es] the trial court to perform a sensitive inquiry into 

such circumstantial and direct evidence of intent as may be 

available." 526 U.S. at 546 (citation omitted). Assessing the 

summary judgment record, the Court noted that appellees had 

offered "circumstantial" evidence consisting of geographic and 

demographic data, id. at 547, which, "[v]iewed in toto, * * * 

tends to support an inference that the State drew its district 

lines with an impermissible racial motive -- even though they 

presented no direct evidence of intent." Id. at 548-549. The 

Court also noted, however, that appellants had produced testimony 

by the legislators who drew the plan that their intent was "to 

make District 12 a strong Democratic district," and what the 

Court described as " [m]ore important" expert testimony examining 

the demographics and the entire boundary of the district.” Id. at 

549. That testimony tended to show "a high correlation between 

race and party preference, " id. at 552, because "in precincts 

with high black representation, there is a correspondingly high 
tendency for voters to favor the Democratic party" and vice 

 



  

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versa, id. at 550. The expert, Dr. David w. Peterson, concluded 

that "the data as a whole supported a political explanation at 
least as well as, and somewhat better than, a racial explanation" 
for the configuration of District 12. Ibid. 

The Court noted that a political explanation for District 12 
would make the district constitutional, since "ga jurisdiction may 
engage in constitutional political gerrymandering, even if it so 
happens that the most loyal Democrats happen to be black 

Democrats and even if the State were conscious of that fact." 

526. U.8. at 551. To reject that political explanation, the 
district court had necessarily "either credited appellees! 

asserted inferences over those advanced and supported by 

appellants or did not give appellants the inference they were 
due." 1d. at. 555. yn either event, "it was error in this case 
for the District Court to resolve the disputed fact of motivation 
at the summary Judgment stage." Ibid. 

3. On remand, the three-judge district court held a three- 
day trial. On March 7, 2000, the court ruled by a 2-1 margin 
that District 12 "continues to be unconstitutional." J.S. App. 
35a. 

| 

a. The majority initially repeated, virtually verbatim, 
many of the same facts regarding the racial composition, party 
registration, and statistical measures of compactness that it had 
relied on in granting summary judgment to appellees. That 
evidence tended to show that cities and counties were divided 
such that the portions within District 12 had substantially 

 



  

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6 

higher percentages of African-Americans than the portions outside 
District 12, sse J.8. App. 12a-14a, and that the boundary of 
District 12 excluded certain precincts in which 54-69% of the 
voters had registered as Democrats, see id. at 13a-l4a. It also 
showed that District 12 scored relatively low on statistical 
measures of compactness. id. at 15a3-17a. Compare J.8S. App. 
247a-253a (district court opinion at summary judgment stage) . 

The majority also referred to evidence presented by 
plaintiffs' expert, Dr. Ronald Weber. According to the court, 
Dr. Weber "showed time and again how race trumped party 
affiliation in the construction of the 12th District and how 
political explanations utterly failed to explain the composition 
of the district, mw 5.5. App. 26a. The majority also stated that 
Dr. Weber had "presented a convincing critique" of the "boundary 
Segment" analysis presented by the State's expert, Dr. David 
Peterson, and discussed by this Court in its opinion in Hunt I, 

and that Dr. Weber had found that Dr. Peterson's study "'has not 
been appropriately done, ' and was therefore 'unreliable and not 
relevant ."s 1d. at 27a. The majority did not itself specify the 
particular respects in which Dr. Peterson's analysis was 
deficient. 

o 
The majority finally referred to two other items of evidence 

to support its conclusion that race, and not politics, was the 

First, the majority referred to the testimony of Senator Cooper. 
The majority stated that "{t}he conclusion that race predominated 

 



7 

was * * * bolstered by" an allusion by Senator Cooper to a desire 

to achieve "racial and partisan balance" as factors underlying 

the redistricting plan. iJ.A. App..27a. The majority found 

"simply not credible" Senator Cooper's contention that "he did 
not mean the term 'racial balance’ to refer to the maintenance 

a ten-two balance between whites and African-Americans." Ibid. 

Second, the court referred to an e-mail to Senator Cooper that 

had been written by Gerry Cohen, the legislative employee who had 
been responsible for technical aspects of drawing the 1997 and 

earlier state plans. See id. at 8a. The e-mail discussed the 

racial composition of a different district -- Districr 1 --and 

then added that "I [Cohen] have moved Greensboro Black community 
into the 12th, and now need to take [a]bout 60,000 out of the 
l2th. I await your direction on this." Ibid. :isee J. A. 369 

(full text of e-mail). The majority stated that the e-mail 

"clearly demonstrates that the chief architects of the 1997 Plan 
had evolved a methodology for segregating voters by race, and 
that they had applied this method to the 12ch District." g.8. 

App. 27a. 

The majority concluded that the legislature had "eschewed 
traditional districting criteria such as contiguity, geographical 
integrity, community of interest, and compactness in redrawing 
the District," but instead had "utilized race as the predominant 
factor in drawing the District." J.S. App. 29a. The court 
entered an injunction against use of District 12 in this year's  



  

elections. Id. at 355. V 

b. Judge Thornburg dissented from the panel's holding that 
District 12 is an unconstitutional racial gerrymander. J.S. App. 
37a-68a. In his view, appellees -- who had the burden of proving 
that race was the Predominant factor -- had "failed he carry 
their burden through either direct or circumstantial evidence." 
Id. at 45a. He stated that the State had "produced ample and 
convincing evidence which demonstrates that political SOnceras 
such as existing constituents, incumbency, voter performance, 
commonality of interests, and contiguity, not racial motivations, 
dominated the process surrounding the creation and adoption of 
the 1997 redistricting plan." Xd. at 45a-46a.. He noted that the 
1597 Plan's drafters "recognized the necessity of Creating a plan 
which would garner the Support of both parties and both houseg™ 
by "protect [ing] incumbents and thereby maintaining] the then 
existing 6-6 partisan split amongst North Carolina's 

congressional delegation." Id. at 46a. Since District 12 had a 
Democratic incumbent, "common sense as well as political 

experience dictated ascertaining the strongest voter performing 
Democratic precincts in the urban Piedmont Crescent." Id. at 

  

The district court also held that District 1 was subject to strict scrutiny, but it found that the State had satisfied that standard. J.8, App. 30a-35a. Appellees did not perfect their appeal from that ruling, and the district court granted appellants' motion to dismiss appellees appeal on August 3, 2000 (Docket No. 178). Accordingly, although the district court's ruling that District 12 is unconstitutional is now before this Court, the district court's ruling that District 1 is constitutional is no longer at issue, and will not be further addressed herein. 

 



  

9 

47a. The fact "[t]hat many of those strong Democratic performing 

precincts were majority African-American, and that the General 

Assembly leaders were aware of that fact, is not a constitutional 

violation.” ‘Ibid. 

Judge Thornburg addressed Dr. Weber's testimony that 

District 12 was drawn on a predominantly racial, and not 

political, basis, because the District failed to include some 

Democratic precincts that had relatively low African-American 

populations. Judge Thornburg noted that "there is no dispute 

that every one of the majority African-American Precincts 

included in the Twelfth District are among the highest, if not 

the highest, Democratic performing districts in that geographic 

region." J.8. App. 50a. He noted that to include other well- 

performing Democratic precincts identified by Dr. Weber would 

have meant excluding "the highest performing Democratic 

precincts."” Ibid.’ He also explained that "few of the strong 

Democratic precincts to which Dr. Weber referred could have 

easily been included in the Twelfth District" because few of them 

"actually abutted" the District. £4. at 50a n.21. Judge 

Thornburg also noted Dr. Weber's testimony that he had 

"considered no hypothesis other than race as the legislature's 

predominant motive" because he had believed, mistakenly, "that 

the person drawing North Carolina's districts could only see 

racial data" on his computer screen. Id. at 51a. Finally, Judge 
Thornburg noted that Dr. Weber had also "specifically failed to 
inquire about real world political or partisan factors which 

 



  

10 

might have influenced the Process." Ibid. 

  

With respect to the Cooper-Cohen e-mail, Judge Thornburg 

explained that it "does little more than reinforce what is 

already known, and what is not constitutionally impermissible: 
North Carolina's legislative leaders WETrs conscibue of race, 

aware of racial percentages, on notice of the potential 

constitutional implications of their actions, and generally very 
concerned with these and every other political and partisan 

consideration which affected whether or not the redistricting 
plan would pass." J.s9. App. 48a n.18. Those facts "contribute 
little to [appellees'] efforts to show that racial motives 

predominated." Ibid.   

4. + On'March 13, 2000, this Court entered an order staying 
the district court's injunction. 120.8. ict. 1415. 

SUMMARY OF ARGUMENT 

This case presents the Court with what is likely to be its 
final opportunity to clarify the legal standards governing a 
racial gerrymandering claim before state legislatures begin the 
redistricting process triggered by the decennial census. Both in 
the Shaw context and elsewhere, this Court has frequently 
emphasized the extraordinary sensitivity of redistricting and 
high costs of unnecessary federal court intrusion into the 
primary authority of the States in this area. For those reasons, 
it is crucial that the "Predominant factor" test that governs a 
racial gerrymandering claim not be interpreted to give district 
Courts a free-ranging license to substitute their judgments for 

 



  

11 

those of state legislatures in the quintessentially political 

determination of how appropriately to draw electoral districts, 

This Court's decisions have established that a district is 
subject to strict scrutiny when it is drawn with race as the 
predominant factor; the plaintiff must prove that traditional 

race-neutral districting principles were. subordinated to race --- 
not to some other factor -- before strict scrutiny applies. As 
the Court has repeatedly explained, the "predominant factor" test 
is a demanding one. It does not license a district court to 

intrude in the core state function of redistricting merely 

because the State has drawn a district that is majority-minority 

or that has a higher minority population than neighboring 

districts. Nor does it permit a district court to intrude in 
state redistricting merely because racial considerations were a 
factor among others in drawing a particular district or in making 
some of the subsidiary districting decisions that go into a 
districting plan. Rather, a district court may intrude in 
districting in this context only if the State's dominant and 
controlling rationale was race. 

Under that standard, the district court in this case erred 

in concluding that the predominant factor in drawing District 12 
was racial. First, the district court relied substantially on 
evidence that was incompetent to distinguish between race and 
politics as a factor responsible for the configuration of 
District 13 The crucial and uncontroverted fact is that in 
North Carolina African-Americans reliably vote overwhelmingly -- 

 



  

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12 

90% or more -- for Democratic candidates. Accordingly, any 
district that, like Digtrict 12, is. drawn to concentrate reliable 
Democratic voters will tend as well to concentrate African- 
American voters. The evidence on which the district court relied 
that District 12 ig unusually shaped in a way that tends to 

predominant -- but not to answer it. The district court also 
relied on evidence showing that District 12 fails to include some 
Precincts with high Democratic registration figures. But in a 
State like North Carolina, in which registered Democrats 
frequently Vets Republican, that evidence is entirely consistent 
with the legislature's professed desire to Create a district that 
would be solidly Democratic on election day, and it provides no 
basis for doubting the State's professed political motive. 

Second, the district court committed clear error in 
“inferring from certain evidence presented by appellees’ expert, 
Dr. Ronald Weber, that race was the predominant motive underlying 
Digtrict 12. For example, the district court relied on Dr. 

 



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strength. Omitting precincts with Democratic voting patterns in 
favor of precincts with even more solidly Democratic voting 
patterns is entirely consistent with the State's professed 
objective. It cannot Support an inference of predominant racial 
motive. 

Third, the district court, based in large part on the faulty 
inferences discussed above, 

Insofar as the district court's inferences in this regard 
were based on its earlier errors, the court's conclusions should 
be disregarded. In any event, however, the inferences the 
district court drew from these statements showed at most that 
race was a factor underlying District 12. The district court 

predominant motive underlying District 12; only the latter is 
subject to strict Scrutiny. Where there is as close a 

was a factor; 

entirely constitutional districting at risk of a district court's 
inference that, because they had some racial knowledge or  



  

14 

motivation, it must have been predominant. 

ARGUMENT 

A. A Shaw Claim Requires Proof That Race was The .State's "Predominant Factor" 

In Shaw v. Reno, 509 U.S. 630 (1993) (Shaw I), this Court 

  

first recognized a claim for racial gerrymandering in violation 
of the Equal Protection Clause. In Miller v. Johnson, 515 U.S. 
900 (1995), the Court articulated the governing standard: strict 
scrutiny is triggered only when "race for its own sake, and not 
other districting Principles, was the legislature's dominant and 

  

controlling rationale in drawing its district lines." 1d. at 
913. Race must thus be shown to be "the bredominant factor 
motivating the legislature's [redistricting] decision." Bush v. 

  

vera, 517 U.8...953, 95g (1996) (plurality opinion) (emphasis in 
Original); see also Shaw Vv. Hunt (Shaw II), 517 U.S. 899, 905   

(1996) ; Lawyer v. Department Of Justice. 5231 U.S. 567, 583   

(1997) ; Hunt v. Cromartie, 526 U.S. 541, 547 (1999) (Hunt I). 
  

The "predominant factor" test is not the same inquiry 
applicable "in cases of 'classifications based explicitly on 
race, '" Bush, 517 U.S. at 958, or in cases in which facially 
neutral practices are challenged on the ground that race is a 
"motivating factor in the decision," Village of Arlington Heights   

V. Metropolitan Housing Dev. Corp... 4290.6. 252,266: (1977). A 
  

Necessary consequence of the Court's holding that a district is 

 



  

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15 

subject to strict scrutiny only when race was the State's 

"predominant factor" in drawing it is that a Shaw claim is not 
made out when race is merely one - the motives or factors: 

considered -- but not the predominant one -- in drawing the 

district. Indeed, the plurality in Bush made that point 

  

expressly, rejecting the view "that it suffices [in making out a 
Shaw claim] that racial considerations be a motivation for the 
drawing of a majority-minority district." Bush, S517. U.S. at 959 
(emphasis in original). In short, "[s]ltrict scrutiny does not 
apply merely because redistricting is performed with 

consciousness of race," id. at 958, "[n]Jor * * =x is the decision 
to create a majority-minority district objectionable in and of 
itself," id. ates. ag Justice O'Connor has explained, under 
the "predominant factor" test, "States may intentionally create 
majority-minority districts, and may otherwise take race into 
consideration, without coming under strict Scrutiny.” 1d. at 993 
(O'Connor, J. concurring). 

B. The Predominant Factor Test Is A Demanding One 

1. This Court hag frequently noted, both in Shaw cases and 
in other redistricting cases, that "redistricting and 

reapportioning legislative bodies is a legislative task which the 
federal courts should make every effort not to pre-empt." Wise 
v. Lipscomb, 437 U.S. 535,539 (1978). Of course, federal courts 
  

Serve a "customary and appropriate backstop role,” Bush, 517 Uy. 
at 985, when a state redistricting plan "runs afoul of federal 
law," Lawyer, 521 U.S. 577. But because "reapportionment is 

 



  

16 

primarily the duty and responsibility of the State," Chavman v. 

  

Maley, 420:U.8,°-31, 27 (1975), and is ."a most difficult subject 
for legislatures," Miller, 515 U.S. at 915, "the States must have 

  

discretion to exercise the political judgment necessary to 
balance competing interests," ibid. "The task of redistricting 
is best left to state legislatures, elected by the people and as 
capable as the courts, if not more so, in balancing the myriad 
factors and traditions in legitimate districting policies." 

  

Abrams v. Johnson, 521 U.S. 74, 101 (1997). ; Ses also Growe v. 
Fmison, "507 U.85. 25, 34 (1993). Because of the serious 

consequences of federal judicial intrusion into this most 

sensitive of state legislative tasks, "[tlhe courts, in assessing 
the sufficiency of a challenge to a districting plan, must be 
sensitive to the complex interplay of forces that enter a 

legislature's redistricting calculus." Miller, 5150.8. at oi5- 
916. See also id. at 916 (" [T]he sensitive nature of 

redistricting and the presumption of good faith that must be 
accorded legislative enactments * * * requires courts to exercise 
extraordinary caution in adjudicating claims that a State has 
drawn district lines on the basis of race."); id. at 915 ("the 
good faith of a state legislature must be presumed") . 

2. The extraordinary sensitivity of the redistricting 
process, coupled with the high costs of undue federal court 
intrusion into that process, demands that a district court 
scrupulously observe the substantive requirements of the 
"Predominant factor" test before finding a Shaw violation. In 

 



  

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Some cases, of course, "[t]he evidentiary inquiry is 

relatively easy." Miller, 515 U.S. at 913. For example, "[i]n 

  

Some exceptional cases, a reapportionment plan may be so highly 
irregular that, on its face, it rationally cannot be understood 
as anything other than an effort tO 'segregatie] . . . voters' on 
the basis of race." ghaw I, 509 U.S. at 646-647. Similarly, the 

  

redistricting record or the subsequent litigation may disclose. 
the relevant State officials making clear that their "overriding 

  

purpose was * * * to create * * * congressional districts with 
effective black voting majorities." Shaw II, 517 U.8. at 906; 
Miller, 518 U.8. atiois (State was "driven by its overriding 
desire to comply with [racial] maximization demands"). These are 
mere examples; other facts can also demonstrate that race was the 
predominant factor in a particular case. 

In other cases, it cannot so readily be inferred that race 
was the predominant factor. For example, when (as is true in 
this case) race correlates highly with partisan voting behavior, 
it is predictable that a State that wants to create a district 
whose borders tend to concentrate members of a particular 
political party will, as =a byproduct, create a district whose 
borders tend to concentrate Swbers of a particular race. If 
that alone were sufficient to Support a finding that strict 
scrutiny applies (and that the district is unconstitutional 
absent a compelling interest), a State would have to forego its 
otherwise lawful option of forming districts on the basis of 
partisan choices. Indeed, it would have to do so only in one 

 



  

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18 

category of cases -- where race correlates highly with partisan 
voting behavior. That contravenes the settled Principles that 
"incumbency protection, at least in the limited form of ‘avoiding 
contests between incumbent [s],' [is] a legitimate state goal," 
and that "political gerrymandering" should not be subjected to . 
Strict scrutiny. Bush, 517 U.S. at 964.2 | 

Even if the State has taken race into account to some extent 
in drawing the district in such a case, that is still not 
sufficient to show that the "predominant factor" underlying the 
district is. racial. As discussed above, strict scrutiny is not 
triggered where race is merely "a motivation, " Bush, 517 U.8. at 
95%, in drawing a district; a Shaw claim requires proof that race 
was the predominant factor. Therefore, where race and partisan 
  

voting behavior correlate highly, and a State draws a district 
with mixed Political, racial, and other motivations, a district 

  

2 See Bush, 517 U.S. at 948 ("If the State's goal is otherwise constitutional political gerrymandering, it is free to Use * * * Political data * * * .. precinct general election voting patterns, precinct primary voting patterns, and legislators’ eéxXperience -- to achieve that goal regardless of its awareness of 

 



1 

even if a legislature paid no attention whatever to race, its 

politically motivated districting decisions would likely be 

susceptible of a racial interpretation. And if the State 

exercised its lawful authority to take race into account to some 

extent, it would inevitably risk the finding of predominant 

racial motive that was made here. That result would be 

inconsistent with bedrock principles recognizing that state 

legislatures -- and not federal courts -- have primary 

responsibility for the politically highly charged task of drawing 

districts, and that federal courts must be particularly cautious 

before intruding into state prerogatives in this area. To 

trigger strict scrutiny, the party challenging the district must 

satisfy the heavy burden of proving that "[r]ace was the 

Criterion that, in the State's view, could not be compromised." 

Shaw II, 517 0.8. at S07. 

ush v. Vera illustrates these principles. The plurality in 
Bush initially noted findings "that the State substantially 

neglected traditional districting criteria such as compactness, 

that it was committed from the outset to Creating majority- 

minority districts, and that it manipulated district lines to 
exploit unprecedentedly detailed racial data." 5317 1U.8."at 963. 
The plurality stated, however, merely that those factors 

"together weigh in favor of the application of strict scrutiny" 
-- not that they required its application. Ibid. The plurality 
explained that it must therefore "consider what role other 

factors played in order to determine whether race predominated.  



  

20 

id. at 963. As the plurality explained, "[b]ecause it is clear 
that race was not the only factor that motivated the legislature 

to draw irregular district lines, we must scrutinize each 

challenged district to determine whether the District Court's 

conclusion that race predominated over legitimate districting 

considerations, including incumbency, can be sustained." 14. at 
965... Only after concluding that there was exceptionally strong 
evidence sufficient to show not merely that race was a factor, 

but that it was the predominant factor, did the plurality   

determine that the districts in question should be subject to 
strict scrutiny.? The same inquiry was required here. 
II. THE DISTRICT COURT IMPROPERLY INFERRED A PREDOMINANT RACIAL MOTIVE IN THIS CASE 

As this Court noted in its decision in Hunt 1, the lines of 
District 12 correlate highly with race. District 12 contains 
portions of six counties; in each of them, the portion of the 
county within«Distriot 12 has a substantially higher African- 
American population than does the portion of the county outside 
  

3/ 

* See Bush, 517 U.S. at 969 (evidence that the State itself explained the district in exclusively racial terms"), 970 (evidence that "districting software * * = provided only racial data at the block-by-block level," and that district lines were in fact determined at that level), 970 (evidence of use Of "race as a proxy"), 971 (evidence that shape of district "was far from the shape that would be necessary to maximize the Democratic vote in that area"), 972-973 ("intensive and pervasive use of race both as a PIOXy to protect the political fortunes of adjacent incumbents, and for its own sake in maximizing the minority 
Principles"), 975 ("racial demographics and voting patterns * * * belie[] any suggestion that party politics could explain" two adjoining districts, because "[tlhe district lines correlate almost perfectly with race, while both districts are similarly solidly Democratic") (citation omitted) . 

 



21 

  

District 12. : See Hunt I, 526 U.S. at 548 3 n. 4. Moreover, the 

boundary lines of District 12 are irregular in shape. See id. at 
547-548. Plaintiffs' claim has always been that this evidence 
demonstrated that District 12 was an unconstitutional racial 
gerrymander. 

As the Court explained in Hunt I, however, the State 

advanced a different explanation for the lines of District 12. 
Af the time of the 1997 Plan, the North Carolina legislature was 
divided between Republicans and Democrats, with the Republicans 
in control of the House and the Democrats in control of the 
Senate. Similarly, the State's congressional delegation was 
evenly divided between six Democrats and six Republicans. The 
State contended that the legislators in charge of redistricting 
concluded that, in this Situation, the only way to get a 

redistricting plan through the legislature would be to adopt a 
plan that maintained the Six-six partisan Split in the 

congressional delegation and that Protected all of the 

incumbents. See J.S. App. 82a-83a, 138a-139a; J.A. 180-182, 235, 
240-241. Because District 12 had a Democratic incumbent, the 
result was to craft District 12 in such a way as to solidify the 
Democratic vote there. Further, it'is undisputed that 90% or 
more of African-Americans in North Carolina regularly vote 
Democratic. See, e.g., J.A. 130 ("over 90 percent" in a series 
of studies); J.A. 139 ("95 to 97 percent"). Accordingly, the 
State contended that the correlation between the district lines 
and race was a mere by-product of the State's desire to create a 

 



  

22 

solidly Democratic District 12; the result of the State's attempt 
Lo concentrate Democratic voters in the district was that the 
most reliable Democratic voters -- African-Americans -- tended to 
be included.¥ 

In short, this was ag "mixed motive" case, like Bush v. Vera. 

  

See 517 U.S. at 959. op remand, what remained for the district 
court was to determine whether plaintiffs could carry their 
burden at trial of proving that, as between the two motives, race 
-- and not the kinds of partisan considerations urged by the 
State -- was the predominant factor underlying the District. The 
district court's conclusion that Plaintiffs had carried that 
burden was fatally defective, for three reasons. 

A. The District Court Relied Substantially On Evidence That Was Incompetent To Distinguish Between Race And Politics As A Factor In Drawing District 12 

Compare J.S. App. 1l0a-17a (final judgment Opinion), 23a-26a 
(same) , 28a-30a (same) with J.S. App. 246a-2533 (summary judgment 
opinion), 258a-2861a (same), 262a-263a (same). The portions of 
the majority's opinion repeated from its summary Judgment opinion 
recite findings that District 12's boundaries correspond with 
  

¥ It is alse significant that District 12 -. with a 43% African-American voting age population and a 47% total African- American population -- is not a majority-minority Qistrict. i As the Court explained ir: Lawyer, " [t]he fact that [the challenged district] is not a majority black district * * =» supports the * % * finding that the district is not a 'safe' one for black- preferred candidates, but one that offers to any candidate, without regard to race, the Opportunity to seek and be elected to Office.” B21 U.S ‘at 581 (internal quotation marks omitted) . 

 



  

23 

race; that District 12 splits each of the cities and counties it 
enters on lines that correspond with race; and that District 12 
is unusually shaped under statistical and other measures of 
compactness. 

The facts recited by the district court are accurate, and in 
an appropriate case they could provide substantial evidence of a 
predominant racial motive. In the circumstances of this mixed 
motive case, however, the evidence recited above only frames the 
question; it does nothing to provide an answer. It merely shows 
that ‘there must have been some motive behind this unusually 

  

shaped district and that that motive might have been race. But 
the State produced substantial evidence showing that its 
Predominant motives were political, and that political motives 
would result in a district with the same unusual shape and the 
same racial composition. The evidence that District I's 
boundaries tend to correspond with race does nothing to 
distinguish between the two motives and to determine which was 
the Predominant ‘one -- the Primary issue that remained open for 
trial after this Court's remand. 

Nor is that inquiry advanced by the fact, noted by the 
district court in its Summary judgment opinion and repeated 
verbatim after trial, that "the uncontroverted evidence 
demonstrates * * = the legislators excluded many heavily- 
Democratic precincts from District 12, even when those precincts 
immediately border the Twelfth and would have established a far 
more compact district.v J. 8. App. 25a; see id. at 26la (summary 

 



24 

Judgment opinion). It is true that District 12 excludes a number 
of adjacent precincts with high Democratic registration; the 

district court enumerated those Precincts in its opinion. See 

id. at 13a-14a; compare J.S. App. 249a-250a (summary judgment 

opinion). But, as this Court noted in Hunt I, the State's 

evidence "showed that, in North Carolina, party registration and 
party preference do not always correspond." 526 U.S. at 551. 
Indeed, the undisputed evidence showed that a large number of 

registered Democrats in North Carolina regularly vote Republican. 
See J.A. 397, 780; J.S. App. 173a-174a; 213a-225a.% 
Accordingly, the State asserted that it used actual election 

returns by precinct -- not registration figures -- to assess the 
partisan makeup of Precincts and to construct its 1997 plan. The 
fact that District 12's boundaries sometimes omit precincts that 

a solidly Democratic District 12, as measured by actual election 

returns .¥ 

  

g / 

2 For example, in 1996, 54% of the State's voters were registered as Democratic, while only 34% were Republicans. Almanac of American Politics 1998 at 1056 Republican candidates won 
elections, 

  

(although a Democrat defeated 
» and the State's delegation to 
1X Republicans and six Democrats Democratic seats was won by a Republican in the 1998 election). Id. ar 1057. 

¥ There is an additional defect in the district court's inference, because the district court disregarded "the necessity of determining whether race predominated in the redistricters' actions in light of what they had to work with." Bush, 517 U.S.    



25 

This Court stated in Hunt I that "[e]lvidence that blacks 
constitute even a supermajority in one congressional district 

while amounting to less than a plurality in a neighboring 

district will not, by itself, suffice to prove that a 

Jurisdiction was motivated by race in drawing its district lines 
when the evidence also shows a high correlation between race and 
party preference.” Hunt I, 526 U.S. at 551-552. At bottom, the 
evidence repeated from the district court's former opinion did no 
more than show what this Court determined would "not suffice" to 
prove a raclal motivation -- much less a predominant racial 

motivation. Accordingly, the district court's conclusion in this 
part of the opinion that "where cities and counties are split 

between the Twelfth District and neighboring districts, the 

splits invariably occur along racial, rather than political, 

lines," J.8. App. 25a, must be rejected as unsupported by the 
evidence. 

  

at 972 n.*. The fact that District 12 excludes even some adjacent precincts with Democratic voting patterns would be of little significance, unless it could be shown as well that including those precincts would make the District as a whole more Democratic. Where, for instance, the district lines tend to exclude precincts wi tendencies while including 
ocratic tendencies, 

*’ The State Supported its conclusion that the district was drawn along political lines by showing that Republican victories were common in precincts abutting District 12, see J.S. App. 213a-  



  

26 

B. It Was Clear Error For The District Court To Infer Predominant Racial Motive From Dr. Weber's Testimony 
The district court added a brief additional portion to its 

Prior opinion. See J.S. App. 26a-28a. That portion purports to 
address further the question whether race or partisan 
considerations was the predominant factor in drawing District 12, 
Some of the evidence to which the district court refers in this 
portion of its opinion is essentially repetitious of the evidence 
discussed above, and it is thus no more helpful in distinguishing 
between racial and partisan motivations underlying District 12. 
But the district court also relied on a number of portions of the 
testimony of Dr. Ronald Weber, appellees: expert, which the 
district court stated showed "time and again how race trumped 
party affiliation in the construction of the 12th District and 
how political explanations utterly failed to explain the 
composition of the district." J.S. App. 26a. That conclusion, 
however, was plainly wrong. 

Initially, as discussed above, "party affiliation" -- ag 
opposed to actual partisan voting conduct -- is of little 
relevance in this case and of no use in the analysis. See Pp. 
——t;. AOLI8s It was therefore erTor to rely on portions of Dr. 
Weber's testimony that were based on registration data. Beyond 
that, however, the evidence presented by Dr. Weber on which the 
district court relied was not significantly probative of race as 
  

225a, and that the splits in counties and municipalities divided Democratic portions in District 12 from Republican portions outside District 12, see J.S. App. 189%a, 191a-1923. The district court did not address that evidence. 

 



  

27 

the predominant factor in drawing District 132. Accordingly, the 

court committed clear error in rslving on that evidence. 

1. The district court cited a portion of Dr. Weber's 

testimony in which he referred to the fact that District 12 has 
more Democratic voters than adjoining Democratic District 8. He 
stated that the State, had it been following its partisan 

objectives, would have "want [ed] to take some of the voters in 
the district that You are drawing that's overly safe and put them 
into [an] adjacent district so as to make that district more 

competitive." ‘Tr. 162 (J.A. 91).¥ 

The State, however, explained the reason for this 

configuration. District 12, in general, is no more solidly 

partisan than are at least two Republican Districts -- Districts 
6 and 10. See J.S. App. 80a (election results). . The Proportion 

of Democrats in District 12 is therefore not suspect. And with 
respect to the specific line dividing Districts 12 and 8, the 
State explained that that line runs along the border between 

  

= The district court referred to another portion of Dr. Weber's testimony, in which he made essentially the same point, when it stated that "Dr. Weber showed that, without fail, Democratic districts adjacent to District 12 yielded their minority areas to that district. retaining white Democratic Precinctg." J.8. App. 26a (citing Tr. 255-256 "{J.A. 134-135). The district court's misapprehension of the record is apparent from its references to "Democratic districts adjacent to District 12," since it is undisputed that, of the five districts adjacent TO District 12, only one (District 8) had a Democratic incumbent in 1997, Moreover, the district court did not specify any majority-minority precincts that had been in District 8°in =a prior plan and subsequently were "yielded" to District 12, and we are unable to identify any. As the map of District 12 and its surroundings reveals, see J.A. 483, there are no majority- minority precincts near the border between Districts 8 and 12. 

 



  

28 

Cabarrus County (in District 8) and Mecklenburg County (in 
Districts 3 and 12). See J.A. 501’ (map). To put some District 
12 Democrats into District 8, the State would have had to violate 
two political constraints that were important to the Teginlat ure: 
it would have had to move some of Mecklenburg County into- 
District 8, which would have divided the county into three 

J.A.S 178, 474-475, 780-782; see also J.A. 658; and it would 
likely have required moving some of Cabarrus County out of 
District 8 to District 12 in return, thus violating the desire of 
Democratic incumbent Hefner in District 8, who lived in Cabarrus 
County, to represent his entire home county, see J.S. App. 85a, 
J. A. 205-306. 

The district court did not discuss the State's proffered 
explanation or otherwise explain why it might be deficient. 
  

q 7 

=" Under Rule 52(a) of the Federal Rules Of Civil Procedure, a district court "shall find the facts specially and state separately its conclusions of law thereon." Aas this Court has stated, "there comes a point where findings become so sparse and 
concept of the determining facts and legal standard may be." Commissioner wv. Duberstein, 363 U.S. 278, 292 (1960). "The courts of appeals, led by the Fifth Circuit, have required that district Courts exercise special care under Rule 52 (a) in the redistricting context, and the district court's failure to exercise such care is itself grounds for reversal. As the Fifth Circuit has explained, "[b]ecause the resolution of a voting dilution claim requires close analysis of unusually complex factual patterns, and because the decision of such a case has the potential for serious interference with state functions, district courts must "strictly adhere[] to the [Federal Rule of Civil Procedure] 52 (a) requirements" that they "find the facts specially" and must "explain with particularity their reasoning and the subsidiary factual conclusions underlying their 

  
  

 



  

* ® 
29 

Dr. Weber admitted that he did not take into account any of the 
political considerations advanced by the State. See J.A. 135 (ry 
don't know anything about what Conaressia Hefner asked."), 136 
(answering "No" to question whether he "inquired about any real 
world political issues that might have been going on that might 
have determined why the Legislature drew the line where it didn) . 
Without some reason to discredit the State's explanation, Dr. 

Weber's analysis does not provide significant evidence of 
discrimination. Accordingly, the district court's inference of 
Predominant racial motive from Dr. Weber's evidence was 

"illogical" and. hence, clearly erroneous. See Anderson v. City 
of Bessemer City, 470 U.s. 564, 577 (1985).   

  

  

  

  

reasoning." Westwego Citizens for Better Gov't v. City of Westwego, 872 F.2d 1201, 1203 (5th Cir. 1989) (quoting Velasquez Vv. City of Abilene, 725 F.2d 1017, 1020 (5th Cir. 1984)). Other courts of appeals similarly "require a particularly definite record for voting rights cases." Cousin v. McWherter, 46 F.3d   568, 574%wi(6th Cir. 1995) ; accord Johnson v. Hamrick, 196 F.3d 1216, 1223: (11th Cir 1999); Lee County Branch of the NAACP v. Clty. .of Opelika, 748 F.2d 1473,:1480 (11th Cir. 1984); Harvell wv. Ladd, 958 F.2d 226, 229 (8th Cir. 1992); Buckanaga v. Sisseton Ind. 3ch,. Dist... 804 F.34 463, 472 (8th Cir. 1986). The "bedrock rule" that a district court's findings must be "sufficiently detailed to permit a reviewing court to ascertain the factual core of, and the legal foundation for, the rulings below * * = 

  
  

  
  

  

has particular force in cases of this genre." Uno v. City of Holyoke, 72 F.3d 973, 983 (1st Cir. 1995). That includes the requirement that "the district court must discuss 'not only the evidence that Supports its decision but also all the substantial evidence contrary to its opinion.'" Ibid.; see also Velasquez, 725 F.2d at 1021 (remanding for district court, which wrote a "long and detailed" opinion, to "take note of substantial contrary evidence presented by the appellants"). Tt also includes the requirement that "when the statistics are the Principal evidence offered * * x, the district court must ensure that it thoroughly discusses its reasons for rejecting that evidence." Clark v. Calhoun County, 21 F.3d 92, 96.(5th Cir. 1954).   

 



30 

2. The district court also relied on Dr. Weber's testimony 

that District 12 contains virtually all (76 out of 79) precincts 

that are 40% or more African-American in the six counties that 

comprise the district, but it does not contain as high a 

percentage of precincts with Democratic tendencies, even as 

measured by election results. Tr. 204-205 (J.A. 105-106). The 
district court clearly erred in inferring a racial motive -- much 

less a predominant racial motive -- from that testimony. The 

question is not whether there were other precincts in the six 

counties with Democratic voting patterns that were left out of 

District 12; the question is whether, if there are such 

precincts, including them in District 12 would have raised or 

lowered the overall likely Democratic vote in Districeg 12.  1f 

the omitted Democratic precincts are far from the borders of 

Districe 12, including them would frequently not have been 

- practical, and, even if it would, expanding the district to 

include them could easily have required including or excluding 

other predingts that would have resulted in an overall boost in 
Republican strength in District 12 1% Dr. Weber, however, did 
not attempt to show that the omitted precincts could have 

reasonably been included in District 12 or that thaiy inclusion 

would have in fact raised Democratic strength in the district. 

Ct. J3.8. App. 50a n.21 (Thornburg, J., dissenting) (State's 

  

+ Insofar as Dr. Weber referred to voting patterns adjoining District 12 those precincts were unifor 
included in the district.  



31 

evidence showed that "few of the strong Democratic precincts to 

which Dr. Weber referred could have easily been included in the 

Twelfth District"). Without such evidence, Dr. Weber's testimony 

on this point proves nothing. 

3. The district court also relied on page 221. of Dr. 

Weber's testimony (J.A. 111) in which he argued that splitting a 

single precinct in Mecklenburg County (Precinct 77, the only 

split precinct in District 12, see J.S. App. 84a) showed that 

race was the predominant motive. The State explained that the 

purpose of splitting that Precinct, located at the southernmost 

tip of Mecklenburg County, was to connect the two portions of 

Republican Representative Myrick's district without including 

additional Democratic voters in her district. See Jis. App. 

208a; J.N. 20,:617-615. That in turn was in service of the 

overall goal of protecting incumbents and therefore splitting 

Mecklenburg County between the two incumbents who lived there -- 

the Democratic incumbent in District 12 and the Republican 

incumbent in District 9. See J.A. 597-598. Neither the court 

nor Dr. Weber addressed that explanation. Although evidence of a 

single split precinct is unlikely to be significantly probative 

in any event, the failure by Dr. Weber or the court to explain 

  

37 
=’ The district court also referred to pages 262 (J.A. 139-140) and 288 (J.A. 156-157) of the transcript. In those portions of his testimony, Dr. Weber was being cross-ex claim that Democrati 

At page 251 of the transcript (J.A. 131), Dr. Weber simply states the conclusion that "[r]ace is the predomina([n]t[] factor." That too adds nothing to the analysis.  



32 
why the State's explanation was deficient undermines the court's 
reliance on this testimony to infer Predominant motive. See n. 
9S, supra. 

4. Taken individually Or together, none of the portions of 
‘Dr. Weber's testimony on which the district Count relied were 
significantly probative even of race a8 a factor in drawing 
District 12: Moreover, even if it were otherwise and Dr. Weber's 
testimony on these points were significantly probative that race 
was a factor in drawing District 12, neither a slight increase in 
the percentage of Democrats in District 12. 5 failure to include 
some isolated Democratic precincts, nor the splitting of a single 
precinct would suffice to show that race was the predominant 

  

factor. 

Cc. 

  

Factor 

1. The district court stated that " [t]he conclusion that 
race predominated was further bolstered by Senator Cooper's 
allusion to a need for 'racial and partisan balance'" in gz 
Statement made to the State House Committee on Congressional 
Redistricting. 3.8 5a, 27a. At trial, Senator Cooper 
testified that by "partisan balance," he meant "[kleeping the 6-6 
Split,” ‘and by "racial balance," he meant "that African Americans 
would have a fair shot to win both the First and 12th Districts,  



  

% » 

33 

and. I think that's racially fair." J.A. 3323. The district court 
stated, however, that "[t] he Senator's contention that although 

he used the term ‘partisan balance' to refer to the maintenance 
of a six-six Democrat -Republican split in the congressional 

delegation, he did not mean the term 'racial balance to refer to 
the Faintenance of a ten-two balance between whites and African- 
Americans is simply not credible... J.8. App. 27a. 

When the district court made that credibility finding 
regarding Senator Cooper's testimony, it had already made the 
€rrors recounted above in determining that the statistical and 
demographic evidence in the case supported an inference of race 
as the predominant motive. The district court was no doubt 
influenced by those eérroneous conclusions in determining that 
Senator Cooper's contrary testimony was not credible. Moreover, 
the district court's inference that because "partisan balance" 
meant a six-six split, "racial balance" must have also meant a 
fixed numerical split, is belied by the fact that Senator 
Cooper's original testimony did not merely refer to "partisan and 
racial balance," see J.S. App... 27a, but to "geographic, racial 
and partisan balance," J.A. 460 (emphasis added). Because the 
term "geographic balance" does not suggest the kind of division 
into neat numerical categories that the term "partisan balance" 
does, it is apparent that Senator Cooper did not consistently 
mean by "balance" a fixed numerical division of the districts, as 
the district court apparently believed. 

For the above reasons, the district court's credibility 

 



  

® ® 

34 

finding regarding Senator Cooper is unsupported. Even if the 
district court's finding were accepted, however, it would show at 
most that race was a motivation in Senator Cooper's attempt to 
configure District 12. He had already testified, however, that 
"we did pay attention to race," and that "[t]lhat was one of the 
factors that was considered," but that "it was certainly not the 
predomina [nt] factor." J.A. 222. The question in the case thus 
was never whether race was considered, but whether race was the 
predominant factor. Neither Senator Cooper's statement that he 
  

was seeking "partisan and racial balance, nor his asserted 
failure to explain what he meant by "racial balance" suggests 
that racial balance was the predominant motive underlying the   

Creation of District 12 -- that "[r]lace was the criterion that, 
in the State's view, could not be compromised." Shaw IY, 517 
U.S. at 907. 

2. Finally, the district court relied on the Cooper-Cohen 
e-mail, in which Gerry Cohen, the legislative employee 

responsible for actually drawing the 1997 Plan on the computer, 
had said "I [Cohen] have moved Greensboro Black community into 
the 12th, and now need to take [a]bout 60,000 out of the 12th. I 
await your direction on this." 3.8 App. 8a; see J.A. 369 (full 
text of e-mail). Cohen's e-mail on its face merely identified 
the general characteristics of the community that had been moved 
into District 12 by referring to its racial composition -- which, 
as this Court has noted, "the legislature always is aware of 
* * * when it draws district lines, just as it is aware of age, 

 



  

* ® 
35 

economic status, religious and political persuasion, and a 

variety of other demographic factors." Shaw I, 509 U.S. at 646; 

see also Bush, 517 U.S. at 958 ("Strict scrutiny does not apply 
merely because redistricting is performed with consciousness of 
race."). Accordingly, the question presented by the e-mail is 

whether the district court properly inferred from that awareness 
that "the chief architects of the 1997 Plan had evolved a 

methodology for segregating voters by race, and that they had 

applied this method to the 12th District." J.8; App. 278. 

As with the Cooper statement, the district court made its 
inference with respect to the e-mail only after having made its 
erroneous findings that the statistical and demographic evidence 
demonstrated a predominant racial motive. Had the district court 
not made the earlier errors, it might have seen the e-mail in a 
different light, and it might not have drawn the dramatic 

conclusion from the e-mail that it did. Indeed, the State had 
explained that the reason for moving the community into District 
12 was in part to avoid splitting Guilford County into three 
districts -- & goal that, as noted above, see p. rariinfra fehe 

State followed consistently with respect to every county in the 
State in the 1997 Plan -- and in part to bolster the Democratic 
vote in District 12 (a goal desired by the Democratic state 
Senate and Congressman Watt, the incumbent there) and to subtract 
Democrats from the vote in neighboring District 6 (a goal desired 
by Republican Congressman Coble, the incumbent there). See J.A. 
182,193, 195-196, 21s, 264-265, 268. The district court did not 

 



® ® 

36 

specifically address or assess the State's evidence that these 

were the primary motivations for moving the portion of Greensboro 

into the Twelfth District. See n. 9, supra. Without an 

explanation of the district court's reasons for rejeéting the 

State's proffered explanation, the district court's conclusion 

from the e-mail is insupportable. 

Finally, even if the e-mail were viewed as persuasive 

evidence that race was a factor in moving that portion of 

Greensboro into District 12, it would not provide sufficient 

evidence to infer that race was the predominant factor in   

constructing District 12 as a whole. In this respect, again, 

Bush is instructive. In that case, the plurality noted evidence 
that "the decision to create the districts now challenged as 

majority-minority districts was made at Sie outset of the process 
and never seriously questioned," 517 U.S. at 961, and that those 

drawing the challenged districts made use of "uniquely detailed 
facial data,’ 4d. at 961-963. Nonetheless, the plurality viewed 
that evidence merely as setting forth the question whether race 
Or politics predominated in drawing the challenged districts, not 
as providing an answer for that question. Similarly here, even 
scattered evidence that race was a factor taken into account in 
determining one or another particular feature of District 12 is 
insufficient to show that race was the predominant motive 

underlying District 12 as ga whole. 

3. As is apparent from a review of the district court's 
opinion, the court erred in concluding that race was the  



® » 
37 

predominant motive in the creation of District 12. To a 

significant extent, the court relied on evidence that could not 

resolve the central question before the court: whether race or 

politics predominated in the construction of District 12. Even 

insofar as the district court, however, relied on evidence that 

had to do with racial considerations, the evidence showed at most 

that race was taken into account in creating District 12 -- =m 

fact that the State conceded from the beginning. Because the 

district court failed correctly to appreciate and apply the 

difference between race as 2 factor and race as the predominant 
  

factor, the district court's conclusion that District 12 1s an 

unconstitutional racial gerrymander cannot stand. To permit a 

district court to find a predominant racial motive in a case like 

this would put state legislatures that have acted entirely 

constitutionally at risk that a district court, finding that race 

was a factor in one or another feature of a districting plan, 

could declare the entire plan unconstitutional. That would 

threaten to immerse the district courts deeply in the highly 

political thicket of redistricting, and it cannot be squared with 

the kind of sensitivity toward state legislative efforts in this 

field that this Court has always required. 

 



38 

  

CONCLUSION 

The judgment of the district court should be reversed. 
Respectfully submitted. 

SETH P. WAXMAN 
Solicitor General   
  

WILLIAM R. YEOMANS ; ; 
Acting Assistant Attorney General   

BARBARA D. UNDERWOOD 
Deputy Solicitor General   

JAMES A. FELDMAN 
Assistant to the Solicitor General   

  

DAVID K. FLYNN 
LOUIS E. PERAERTZ 
Attorneys 
  

SEPTEMBER 2000 

 



IN THE SUPREME COURT OF THE UNITED STATES 

  

NO. 99-1864 and 99-1865 

  

JAMES B. HUNT, JR., GOVERNOR OF NORTH CAROLINA, 
ET AL., APPELLANTS 

Vv. 

MARTIN CROMARTIE, ET AL. 

  

ALFRED SMALLWOOD, ET AL., APPELLANTS 

V. 

MARTIN CROMARTIE, ET AL. 

  

CERTIFICATE OF SERVICE 
  

It is hereby certified that all parties required to be served 
have been served with typewritten copy of the BRIEF FOR THE UNITED 
STATES AS AMICUS CURIAE SUPPORTING APPELLANTS (to be replaced with 
printed copies) by first class mail, postage prepaid, on this 8th day 
of September, 2000. 

SEE ATTACHED SERVICE LISTS 

  

SETH P. WAXMAN 

Solicitor General 

Counsel of Record 
  

September 8, 2000 

 



   
99-1864 

HUNT, JAMES B., JR., GOV. OF NC, ET AL. 
MARTIN CROMARTIE, ET AL. 

ROBINSON O. EVERETT 

EVERETT & EVERETT 

P.O. BOX 586 

DURHAM, NORTH CAROLINA 27702 

DOUGLAS E. MARKHAM 

P.O. BOX 130923 

HOUSTON, TEXAS 77219-0923 

MARTIN B. MCGEE 

GRADY, DAVIS & TUTTLE 

708 MCLAIN ROAD 

KANNAPOLIS, NORTH CAROLINA 28081 

TIARE B. SMILEY 

SPECIAL DEPUTY ATTORNEY 

GENERAL 

NORTH CAROLINA DEPT. OF JUSTICE 

P.O. BOX 629 

RALEIGH, NORTH CAROLINA 27602-0629 

ADAM STEIN 

FERGUSON, STEIN, WALLAS, ADKINS, 

GRESHAM & SUMTER, P.A. 

312 WEST FRANKLIN STREET 

CHAPEL HILL, NORTH CAROLINA 27516 

 



  

938-1865 

SMALLWOOD, ALFRED, ET AL. 
MARTIN CROMARTIE, ET AL. 

TODD A. COX 

NAACP LEGAL DEFENSE & 

EDUCATIONAL FUND, INC. 

1444 EYE STREET, NW 

10TH FLOOR 

WASHINGTON, DISTRICT OF COLUMBIA 20005 

ROBINSON O. EVERETT 

EVERETT & EVERETT 

P.O. BOX 586 

DURHAM, NORTH CAROLINA 27702 

ELAINE R. JONES 

NAACP LEGAL DEFENSE & 

EDUCATIONAL FUND, INC. 

99 HUDSON STREET 

SUITE 1600 

NEW YORK, NEW YORK 10013 

DOUGLAS E. MARKHAM 

P.O. BOX 130923 

HOUSTON, TEXAS 77219-0923 

MARTIN B. MCGEE 

GRADY, DAVIS & TUTTLE 

708 MCLAIN ROAD 

~ KANNAPOLIS, NORTH CAROLINA 28081 

EDWIN SPEAS 
CHIEF DEPUTY ATTORNEY 
GENERAL 

P.O. BOX 629 
RALEIGH, NORTH CAROLINA 27602-0629 

ADAM STEIN 

FERGUSON, STEIN, WALLAS, ADKINS, 
GRESHAM & SUMTER, P.A. 

312 WEST FRANKLIN STREET 

CHAPEL HILL, NORTH CAROLINA 27516