Fax from Everett RE: Letter from Markham to Smiley concerning document request

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EVERETT GARSKINS/DURHAM TEL :919-682-5469 Noy 09'99 16:49 No.Q04 F.01 

oF EVERETT & EVERETT 
ATTEANEYS AND COUNSELORS AT LAW 

SUITE 300 
A. BVERETY (1878-1471) 201 W, MAIN STREET paring pi in (1993-1994) B.O. BOX 538 TEL @f 
DAWN T. BATTICTS Dusan, North Carona 27702 FAX: rd ym PANDAS G. HERRING 

OF COUNSEL 
ROBERT D. HOLLEBMAN 

OF COUNSES, 
CRAKE M. KABATCHNICK November 9, 1999 
(ADMITTED N.C., 0.0.) 

Ms. Tiare Smiley Vig Fax to 716-6763 North Carolina Dept. of Justice 
P.O Box 62¢ 
Ralelgh, NC 27602-0629 

Dear Tiare: 

As a result of the breakdown of our copier and other trial preparation issues, It will be tomorrow before we are able to messenger over the copies of most of the documents you previously requested to view. 

Yours Very Truly, 
i 

Doug Mar¥ham 

 



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REDISTRICTING MATERIALS FOR 
NCSL REDISTRICTING SEMINAR 

NOVEMBER 7, 1999 

AVOIDING A CHALLENGE UNDER THE EQUAL PROTECTION CLAUSE 
  

AS INTERPRETED BY SHAW V_RENO, MILLER V. JOHNSON, AND BUSH V YERA 

DOUGLAS E. MARKHAM 
PO BOX 130923 
HOUSTON, TX 77219-0923 
713-655-8700 
713-869-3255 
713-655-8701 fax 
dni PAS CATE 

Eo 

      

 



  

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TOP TEN WAYS TO (TRY TO) AVOID A SHAW CHALLENGE 

1. AVOID UNNECESSARY USE OF RACE. To the degree a neighborhood is defined in part 
by rage, the inclusion of the entire neighborhood may be appropriate, To the degree an urban 
area spills over a county line, the inclusion of the entire area, even if it has a racial character may 
be an appropriate choice. To the degree neighborhoods are grouped in a clump and share a racial 
character, keeping them together may be permissible. Otherwise, unless Section ? requires a district be created, and your approach is narrowly tailored, avoid the use of race. 

2, USE WHOLE PRECINCTS AND COUNTIES. Respect precinet, city, and county 
boundaries, especially where they reflect a geographic community of interest. The ideal world would be to draw up first the building blocks for your plan, the precincts, by having a 
demographer look at housing patterns, common interests and the like, and then build a district from those units. Many precincts today are themselves racially gerrymandered, as a result of successful Section 2 claims from the era of forced “maximization ” 

3. GROUP NEIGHBORHQODS COMPACTLY. Respecting traditional geographic areas of the 
community, and using rommon traneport limles, &:0up precinets into clusters which are compact, 

4. AVOID UNPOPUT ATED LAND BRIDGES. The use of npopulated and lightly populated land bridges to connect separated pockets of racially identifiable voters is a sign of the predominance of race. If you do not have a geographically compact minority group in your 
jurisdiction, don’t fudge by linking widely separate pockets of minority. voters int a single district claiming & “fui liviial compactness” on the bags that all minorities in a rogien a's Lie sane. 

3. CONSIDER USING IDENTIFIABLE BOUNDARIES. Major roads, rivers, or Interstate highways may serve as logical, non-racial boundaries for a district, and assist voters to know in which district they have been placed. 

6. DO THE ANALYSIS OF VOTING BEHAVIOR. Race-based districts are often excused as being required to comply with Section 2 of the Voting Rights Act. Don’t make outdated, mistaken assumptions about black and white voting behavior. If as many as 20% of white voters support minority-preferred candidates, you probably do not have jegally significant polarized voting, Miuoiily voters may have an equal opportunity to elect candidates of their choice in districts where they comprise 25-35% of the voters. 

7 EQUALLY POPULATE ALL DISTRICTS. Given the realities of the size of your building blocks, make the populations as ¢qual as possible. Less than a 10% deviation in populations is not a safe harbor, even for state house ang senate plans, especially where thie Jovialions are racial in character. 

8. BE INCLUSIVE. Keep the lines of communication open. It doesn’t help to claim that anyone who opposes segregated districts must be a Klansman. 

hy IN 

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9. BE PREPARED TO GO TO THE D.C. CIRCUIT TO GET PRECLEARANCE. The 
Department of Justice has a poor track record for correctly interpreting the Equal Protection 
Clause of the Fourteenth Amendment, Their political analysis is hopelessly outdated, and they 
continue to push for bizarre districts and maximization despite the Supreme Court’s rulings. 
Keep tuned for Bossier Parish, 

10. DON'T SWEAT MINUSCULE DEVIATIONS. There is rarely sense in splitting a precinct 
in order to structure congressional districts which are precisely equal in population. Given the 
mobile nature of Americans, a quarter of a percent deviation in congressional districts (1000 or so 
persons) should be acceptable to the courts and to common sense, in order to keep neighborhoods 
and precincts intact. 

SELECTED ISSUES IN REDISTRICTING FROM THE VIEW OF THE SHAW PLAINTIFF 

PREFACE 

The Voting Rights Act, designed at a time of one-party Democrat rule in the Deep South 
is now increasingly applied in a two-party context, in areas of the New South and border South, 
and in multiracial contexts. At the time of the Thornburg v. Gingles, 478 U. 8. 30, 106 S.Ct. 
2752 (1986) decision, and until recently, Section 2 plaintiffs, many jurisdictions and the 
Department of Justice assurned that black voters could only win in districts 65% black in total 
population. In fact, there are now some jurisdictions where black voter turnout and registration 
rates exceed that of white voters, and minority-preferred candidates usually win in districts in 
which minority voters are only a plurality. 

Houston, Texas, for example, has a robust history of electing candidates of choice of 
Hispanic and black voters for more than 20 years. Candidates of each racial group have defeated candidates of each other racial group for the at-large positions. Since 1989 in contests for the at- 
large positions Hispanics have defeated blacks (Saenz v. Clark, 1991; Sanchez v. Burks, 1997), 
blacks have defeated Hispanics (Jackson Lee v. Castillo, 1989), blacks have defeated whites 
(Clark v. Westmoreland, 1989; Robinson v, Kelley, 1991, Peavey v. Tyra, 1995), whites have 
defeated blacks (Bell v. Dixon, 1997; Bell v, Johnson, 1997; Roach v, Wright, 1997), Hispanics have defeated whites (Sanchez v. Ballard, 1095), and whites have defeated Hispanics (Kelley v. C. Gorczynski, 1993)(In Texas the term “Anglo” in voting rights cases has come to mean non-Hispanic whites. Thus the many Houstonians of Czech, Polish, German, lalian, Greek, and Middle Eastern origin are by default “Anglo.”) 

Candidates preferred by African-American voters have regularly won election as Mayor of the City of Houston over the past two decades. In 86 of 36 elections held in Harris County since 1988 in districts where blacks comprised 39.6% or more of the citizens of the district, a black candidate won, Every district in Harris County since 1988 which has been 43.2% or greater Hispanic by citizen voting age population has elected a Hispanic officeholder, and each has been the preferred candidate of Hispanic voters. 

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The Chen v. City of Houston case, presently on appeal at the Fifth Circuit, and challenging city council districts, presents several issues of potential importance to post-2000 redistricting, including whether an unchallenged plan, despite unconstitutional characteristics, can serve as a benchmark for measuring retrogression. It may address whether gross differences in citizen population of districts present a Separate equal protection violation or whether purposeful undersizing of minarity districts is an independent equal protection violation. 

WHAT IS RETROGRESSION ANYWAY, AND WHAT I$ THE BENCHMARK WHERE A DISTORTED SET OF DISTRICTS WAS NEVER CHALLENGED? 

“Section 5 cannot be used to freeze in place the very aspects of a plan found unconstitutional.” Abrams v, Johnson, 521 U. 8. 74, 117 8. Ct. 1925, at 1939, 138 L, Ed, 24 285 (1997). The Chen District Court thus erred to find that there is “no legal basis” . . , “10 permit the review of plans that have become final” 9 F.Supp.2d at 760. The practical effect of such a determination has important implications for correcting race-based districting plans adopted across the nation in the 1990s. Every plan not previously challenged might be frozen into place, and governments will be forced to continue to contort districts to maintain the racial percentages present in the current districts. Current levels of minerity population in districts might be required even if the decade has seen as in Houston, an increasing willingness of voters of all races to support candidates of all races, 

A different retrogression analysis is appropriate where the demographics of a city have changed as a result of an annexation. So long as the new districts “afford representation reasonably equivalent to [the minority voters'] political strength in the enlarged community,” 

371 (1975). Otherwise, annexations could only occur if the annexed territory is adjacent to a district of the same racial character, and does not require reduction in the racial percentages of 

WIDE VARIATIONS IN ADULT CITIZENS AMONG DISTRICTS 

The packing of non-citizens into a few districts dilutes the votes of citizens in all other districts. The Constitution does not always compel a jurisdiction to use citizen population figures in constructing districts. In many jurisdictions the variations between citizen-based and total population-based plans would be minimal, See, Daly v. Hunt, 93 F.3d 1212, at 1216 (4th Cir. 1996)(plan urged by plaintiffs had 13.43% deviation in voting age population, while adopted plan had 16.17% deviation). Yet in those rare cases where total population does not assure equal voter strength among the districts, citizen VAP should be the basis for redistricting, Garza v. 

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County of Los Angeles Board of Supervisors, 918 F.2d 763, 778-788 (5* Cir. 1990)(Kozinski, J. concurring and dissenting in part) cert. den. 498 U.S. 1028 (1991). Alternately, in a setting where the differences in adult citizens Between districts is extreme, a City violates the Fourteenth Amendment to purposely gather non-citizens into a few districts and thus exaggerate the voter inequality of the districts. 

The differences in equality in the Houston plan are not the sort of less extreme differences in Daly or approved by the Supreme Court in Gaffney v. Cummings, 412 U. 8. 735 (1973). The raw disparity in citizen adult population among the nine districts exceeds 30%. Even taking the ability of residents in overpopulated districts to participate in elections for at-large members, a 

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greater than 20% disparity in voting power remains. See, Board of Estimates v, Morris, 489 U.S. 688 (1989). 

The rationale for population equality of districts has traditionally been understood to provide fundamental equality of the political power of individual voters, wherever situated. 

Simply stated, an individual's right to vote . . . is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with 
citizens living in other parts of the State. . . . 

Reynolds v. Sims, 377 U. S. 533, at 568 (1964). Accord, Hadley v. Junior College Dist, 397 U.S. 30, 56 (1970); Lockport v. Citizens Jor Community Action, 430 U. §, 259, 265 (1977)(all citizens have an equal interest in representative democracy”) Conrra, Garza v. C ounty of Los Angeles Board of Supervisors, 756 F. Supp. 1298 (C. D. Cal), aff'd, 918 F.2d 763 (5th Cir. 1990), cers. den. 498 U. S. 1028 (1991); Daly v. Hunt, 93 F.3d 1212 (4th Cir. 1996)(rejecting view that Constitution views electoral equality as more important than representational equality). 

RACE-BASED UNDERPOPULATION OF DISTRICTS 

One scam for the past several decades is that suburban representation has had to struggle to catch up in every redistricting cycle. At the end of each decade, suburban districts are often 30 to 40% oversized. In order to achieve more racially pure minority districts, legislators often have undersized the minority districts. In order to compensate for an alleged undercount of minority persons, minority districts were also made smaller, (What politician would net like to represent a district, many of whose members could not be found on Census Day, and surely will not show up to vote him out of office on Election Day? Cf, “Institutional and military populatiofis are very attractive to politicians because they are counted in the total population of 2 district, but generally do not vote in that district.” Smith v. Beasley, 946 F. Supp. 1174 (D.C. S.C. 1996) ) I would expect suburban advocates in the post-2000 redistricting wars to show historically that their areas have been under represented continuously, and to urge consideration of projected growth as an element of district sizing. 

Race-based underpopulation of districts independently violates the 14th Amendment. Even if citizenship distortions can be safely ignored, and a total population deviation less than 

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10% usually would entitle a government to a presumption of a valid districting plan, there is an 
exception for unjustified, race-based decisions where districts for black and Hispanic members are 
made smaller than those for white/Anglo members. Daly, 93 F.3d, at 1220. This policy of 
awarding “shean RAAT’ tA Mitr amt smal oon fA . -