Appellant-Intervenors Application for Extension of Time to File Jurisdictional Statement; Appendix to Application for Extension
Public Court Documents
April 25, 2000
73 pages
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Case Files, Cromartie Hardbacks. Appellant-Intervenors Application for Extension of Time to File Jurisdictional Statement; Appendix to Application for Extension, 2000. 125a728e-d90e-f011-9989-7c1e5267c7b6. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/6b1c4ad4-8f93-4a39-898e-125e88bc0944/appellant-intervenors-application-for-extension-of-time-to-file-jurisdictional-statement-appendix-to-application-for-extension. Accessed May 14, 2025.
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No. 99A757
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1999
JAMES B. HUNT, JR. et al,
Appellants,
and
ALFRED SMALLWOOD, et al,
Appellant-Intervenors,
V.
MARTIN CROMARTIE, ef al.,
= : Sy! “ Appellees.
APPELLANT-INTERVENORS’ APPLICATION FOR EXTENSION OF TIME
TO FILE JURISDICTIONAL STATEMENT
To the Honorable William H. Rehnquist, Chief Justice of the United States and Circuit
Justice for the Fourth Circuit:
On March 7, 2000, the District Court for the Eastern District of North Carolina issued an
order declaring the present configuration of North Carolina’s Twelfth Congressional District
unconstitutional and enjoining the State of North Carolina from using the district in future
elections. The final judgment of the district court was entered on March 8, 2000. Alfred
Smallwood, David Moore, William M. Hodges, Robert L. Davis, Jr., Jan Valder, Barney
Offerman, Virginia Newell, Charles Lambeth and George Simkins (“the Smallwood Appellant-
RECEIVE Iterve hore” or “Appellant-Intervenors”), filed their notice of appeal on March 13, 2000.
HAND DELIVERED
‘APR 2 5 2000
OFFICE OF THE CLERK
SUPREME COURT, U.S.
Pursuant to Rule 23 of the Rules of this Court, on March 13, 2000, the Smallwood
Appellant-Intervenors filed an application in this Court requesting a stay of the district court’s
order pending their appeal. On March 16, 2000, this Court granted Appellant-Intervenors’
application. Appellant-Intervenors’ jurisdictional statement is currently due on May 12, 2000.
On April 19, 2000, Appellants filed in this Court an application for an extension of time
within which to docket their appeal. On April 21, 2000, this Court granted that request,
extending the time to and including May 19, 2000.
The Smallwood Appellant-Intervenors, by their undersigned attorneys, respectfully
request an extension of time within which to docket their appeal and file a jurisdictional statement
in this Court. The Smaliwood-Intervenors request that they be permitted to file their jurisdictional
statement simultaneously with Appellants on May 19, 2000. The Smallwood Appellant-
Intervenors set forth the following reasons for granting their application in addition to those
articulated by Appellants.
This case involves the analysis of the claims raised under the constitutional doctrine first
set forth in Shaw v. Reno, 509 U.S. 630 (1993), demanding a particularly fact-intensive evaluation
and a “searching inquiry . . . before strict scrutiny can be found applicable.” Bush v. Vera, 517
U.S. 952, 958 (1996). See id. at 959 (in “mixed motive” cases, “careful review” is necessary to
determine application of strict scrutiny to electoral districts). During the three-day trial in this
case, an extensive factual record was developed by the parties. This record contains detailed
information about the legislative motivations for creating the Twelfth Congressional District and
the mechanics of the process that lead to the creation of the challenged redistricting plan. As, on
appeal, this Court will have to determine what role, if any, race played in the redistricting process,
Appellant-Intervenors require additional time to review this record and develop a complete
jurisdictional statement to assist the Court in the evaluating the district court’s ruling. Also, as
Appellant-Intervenors were extensively involved in the development of this record, extending the
time will permit the Smallwood Intervenors an opportunity to coordinate and consult with the
State of North Carolina and thereby minimize duplication in the jurisdictional statements to the
greatest extent possible.
CONCLUSION
For the reasons set forth herein, the Smallwood Appellant-Intervenors respectfully request
that the Circuit Justice or this Court grant Appellant-Intervenors’ Application for Extension of
Time to File Jurisdictional Statement and extend the time to and including May 19, 2000.
RI y submitted,
iy rs
77
ADAM STEIN ELAINE R. hy ii
Ferguson, Stein, Wallas, Adkins Director-Counsel and President
Gresham & Sumter, P.A. NORMAN J. CHAC
312 West Franklin Street JACQUELINE A. BERRIEN
Chapel Hill, North Carolina 27516 NAACP Legal Defense and
(919) 933-5300 Educational Fund, Inc.
99 Hudson Street, Suite 1600
New York, New York 10013
(212) 219-1900
TODD A. COX
NAACP Legal Defense and
Educational Fund, Inc.
1444 1 Street, NW, 10th Floor
Washington, D.C. 20005
(202) 682-1300
This 25th day of April, 2000.
No. 99A757
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1999
JAMES B. HUNT, JR. ef al,
Appellants,
and
ALFRED SMALLWOOD, ef al.,
Appellant-Intervenors,
V.
MARTIN CROMARTIE, et al,
Appellees.
CERTIFICATE OF SERVICE
I, Todd A. Cox, a member of the Bar of this Court, hereby certify that on this 25th day of
April, 2000, served by first-class mail, postage prepaid, true and correct copies of Appellant-
Intervenors’ Application for Extension of Time to File Jurisdictional Statement and Appendix
to Robinson O. Everett, Suite 300 First Union National Bank Building, Post Office Box 586,
Durham, North Carolina 27702 and Edwin M. Speas, Jr., Chief Deputy Attorney General and
Tiare B. Smiley, Special Deputy Attorney General, North Carolina Department of Justice, Post
Office Box 629, Raleigh, North Carolina 27602-0629, counsel for all of the appellants and
appellees herein. I further certify that all partis required to be served haye ore erved.
~~ F ”
ir & fr 4 + i
= 7
Todd A. Cox J
NAACP Legal Defense
& Educational Fund, Inc.
1444 1 Street, N.W., 10th Floor
Washington, D.C. 20005
(202) 682-1300
RECEIVED
HAND DELIVERED
APR 2 5 2000 Counsel for Appellant-Intervenors
OFFICE OF THE gif RK SUPREME COURT, (.g,
No. 99A757
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1999
JAMES B. HUNT, JR. et al,
Appellants,
and
ALFRED SMALLWOOD, et al.
Appellant-Intervenors,
V.
MARTIN CROMARTIE, et al.,
Appellees.
APPENDIX TO
APPELLANT-INTERVENORS’ APPLICATION FOR EXTENSION OF TIME
TO FILE JURISDICTIONAL STATEMENT
Judgment in Cromartie v. Hunt,
No. 4:96-CV-104-BO(3) (E.D.N.C. March 7, 2000) APPENDIX A
Defendant-Intervenors’ Notice of Appeal APPENDIX B
Opinion in Cromartie v. Hunt,
No. 4:96-CV-104-BO(3) (E.D.N.C. March 7, 2000) APPENDIX C
RECEIVED |
HAND DELIVERED |
APR 2 5 2000
OFFICE OF THE CLERK
SUPREME COURT, U.S.
No. 99A757
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1999
JAMES B. HUNT, JR. et al,
Appellants,
and
ALFRED SMALLWOOD, et al,
Appellant-Intervenors,
v.
MARTIN CROMARTIE, ef al.,
Appellees.
APPELLANT-INTERVENORS’ APPLICATION FOR EXTENSION OF TIME
TO FILE JURISDICTIONAL STATEMENT
To the Honorable William H. Rehnquist, Chief Justice of the United States and Circuit
Justice for the Fourth Circuit:
On March 7, 2000, the District Court for the Eastern District of North Carolina issued an
order declaring the present configuration of North Carolina’s Twelfth Congressional District
unconstitutional and enjoining the State of North Carolina from using the district in future
elections. The final judgment of the district court was entered on March 8, 2000. Alfred
Smallwood, David Moore, William M. Hodges, Robert L. Davis, Jr., Jan Valder, Barney
Offerman, Virginia Newell, Charles Lambeth and George Simkins (“the Smallwood Appellant-
Intervenors” or “Appellant-Intervenors”), filed their notice of appeal on March 13, 2000.
Pursuant to Rule 23 of the Rules of this Court, on March 13, 2000, the Smallwood
Appellant-Intervenors filed an application in this Court requesting a stay of the district court’s
order pending their appeal. On March 16, 2000, this Court granted Appellant-Intervenors’
application. Appellant-Intervenors’ jurisdictional statement is currently due on May 12, 2000.
On April 19, 2000, Appellants filed in this Court an application for an extension of time
within which to docket their appeal. On April 21, 2000, this Court granted that request,
extending the time to and including May 19, 2000.
The Smallwood Appellant-Intervenors, by their undersigned attorneys, respectfully
request an extension of time within which to docket their appeal and file a jurisdictional statement
in this Court. The Smallwood-Intervenors request that they be permitted to file their jurisdictional
statement simultaneously with Appellants on May 19, 2000. The Smallwood Appellant-
Intervenors set forth the following reasons for granting their application in addition to those
articulated by Appellants.
This case involves the analysis of the claims raised under the constitutional doctrine first
set forth in Shaw v. Reno, 509 U.S. 630 (1993), demanding a particularly fact-intensive evaliveion
and a “searching inquiry . . . before strict scrutiny can be found applicable.” Bush v. Vera, 517
U.S. 952, 958 (1996). See id. at 959 (in “mixed motive” cases, “careful review” is necessary to
determine application of strict scrutiny to electoral districts). During the three-day trial in this
case, an extensive factual record was developed by the parties. This record contains detailed
information about the legislative motivations for creating the Twelfth Congressional District and
the mechanics of the process that lead to the creation of the challenged redistricting plan. As, on
appeal, this Court will have to determine what role, if any, race played in the redistricting process,
Appellant-Intervenors require additional time to review this record and develop a complete
jurisdictional statement to assist the Court in the evaluating the district court’s ruling. Also, as
Appellant-Intervenors were extensively involved in the development of this record, extending the
time will permit the Smallwood Intervenors an opportunity to coordinate and consult with the
State of North Carolina and thereby minimize duplication in the jurisdictional statements to the
greatest extent possible.
CONCLUSION
For the reasons set forth herein, the Smaliwood Appellant-Intervenors respectfully request
that the Circuit Justice or this Court grant Appellant-Intervenors’ Application for Extension of
Time to File Jurisdictional Statement and extend the time to and including May 19, 2000.
{ Respectfully submitted,
Jot 7 A
ADAM STEIN ELAINE R. JONES
Ferguson, Stein, Wallas, Adkins Director-Counsel and President
Gresham & Sumter, P.A. NORMAN J. CHAC
312 West Franklin Street JACQUELINE A. BERRIEN
Chapel Hill, North Carolina 27516 NAACP Legal Defense and
(919) 933-5300 Educational Fund, Inc.
99 Hudson Street, Suite 1600
New York, New York 10013
(212) 219-1900
TODD A. COX
NAACP Legal Defense and
Educational Fund, Inc.
1444 1 Street, N.W., 10th Floor
Washington, D.C. 20005
(202) 682-1300
This 25th day of April, 2000.
No. 99A757
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1999
JAMES B. HUNT, JR. et al,
Appellants,
and
ALFRED SMALLWOOD, et al.,
Appellant-Intervenors,
v.
MARTIN CROMARTIE, et al,
Appellees.
CERTIFICATE OF SERVICE
I, Todd A. Cox, a member of the Bar of this Court, hereby certify that on this 25th day of
April, 2000, served by first-class mail, postage prepaid, true and correct copies of Appellant-
~ Intervenors’ Application for Extension of Time to File Jurisdictional Statement and Appendix
to Robinson O. Everett, Suite 300 First Union National Bank Building, Post Office Box 586,
Durham, North Carolina 27702 and Edwin M. Speas, Jr., Chief Deputy Attorney General and
Tiare B. Smiley, Special Deputy Attorney General, North Carolina Department of Justice, Post
Office Box 629, Raleigh, North Carolina 27602-0629, counsel for all of the appellants and
appellees herein. I further certify that all partigs required to be eA
. le Z, i , pf
= 7
Todd A. Cox /
NAACP Legal Defense
& Educational Fund, Inc.
1444 1 Street, N.W., 10th Floor
Washington, D.C. 20005
(202) 682-1300
Counsel for Appellant-Intervenors
No. 99A757
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1999
JAMES B. HUNT, JR. ef al.,
Appellants,
and
ALFRED SMALLWOOD, et al.,
Appellant-Intervenors,
V.
MARTIN CROMARTIE, et i
Appellees.
APPENDIX TO
APPELLANT-INTERVENORS’ APPLICATION FOR EXTENSION OF TIME
TO FILE JURISDICTIONAL STATEMENT
INDEX
Judgment in Cromartie v. Hunt,
No. 4:96-CV-104-BO(3) (E.D.N.C. March 7, 2000)..........ccccevvvevviinrneennnn. APPENDIX A
Defendant-Intervenors’ NOLICE OF APPRAL.............ccciviinsispsiiiss savirnvsrnnessressnsnsnnnbvsns APPENDIX B
Opinion in Cromartie v. Hunt,
No. 4:96-CV-104-BO(3) (E.D.N.C. March 7, 2000)............cccvverviirieenn... APPENDIX C
APPENDIX A
03/13/2000 12:55 FAX fait FERGUSON STEIN » » [002/003
UNITED STATES DISTRICT COURT = .--
EASTERN DISTRICT OF NORTH CAROLINA [+
EASTERN DIVISION
IMAR 0 2000
MARTIN CROMARTIE, THOMAS Si
CHANDLER MUSE, R. O. EVERETT, Diu, a
J. H. FROELICH, JAMES RONALD rT Te Re
LINVILLE, JOEL K. BOURNE,
LOIS WEAVER,
v. JUDGMENT
JAMES B. HUNT, JR., in his official No. 4:96-CV-104-BO(3)
capacity as Governor of the State of North
Carolina, DENNIS WICKER in his
official capacity as Lieutenant Govemor
of the State of North Carolina, HAROLD
BRUBAKER, in his official capacity as
Speaker of the North Carolina House of
Representatives, ELAINE MARSHALL, in
her official capacity as Secretary of the
State of North Carolina, THE NORTH
CAROLINA STATE BOARD OF
ELECTIONS, an official agency of the
State of North Carolina, LARRY LEAKE,
S. KATHERINE BURNETTE, FAIGER
BLACKWELL, DOROTHY PRESSER,
and JUNE YOUNGLBOOD, in their
official capacity as members of the
the North Carolina Board of Elections,
et ——— | ———
Defendants.
ALFRED SMALLWOOD, DAVID
MOORE, WILLIAM M. HODGES,
ROBERT L. DAVIS, JR., JAN VALDER,
BARNEY OFFERMAN, VIRGINIA
NEWELL, CHARLES LAMBETH,
and GEORGE SIMKINS,
Defendant-Intervenors
03/13/2000 12:55 FAX 19967493 ® FERGUSON STEIN » *» @003/003
1
I
|
}
.
Decision by Three—~Judge Court. This action came to trial before the Court. The issues have been
tried or heard and a decision has been rendered.
IT IS ORDERED, court finds that the 1997 Plan's
Twelfth District continues to be unconstitutional as a Defendants are enjoined from using
the unconstitutional District 12 in future elections. The 1997 Plan's First District does not violate
the Constitution and may thus be used in future elections.
IT IS FURTHER ORDERED ADJUDGED AND DECREED that, as stated in open court,
movant Norman Prius motion to appear as Amicus Curiae is DENIED.
This Judgment Filed and Entered on March 8, 2000, and Copies To:
‘ — Rovnmn Eve El — ee eee. NOFRAR- PEARS ~The wi
P. O. Box 586 136 Gardner St.
Durham, NC 27702 New London, CT 06320
Martin McGee, Esq.
P. 0. Box 810
Concord, NC 28026-0810
Tiare B. Smiley, Esq.
P.0.Box 829
Raleigh, NC 27602
Adam Stein, Esq.
312 West Franklin St.
Chapel Hill, NC 27516
Robert Hunter, Esq.
P. 0D. Box 20370
Greensboro, NC 27420
March 8, 2000 DAVID W. DANIEL, CLERK
Oo Made.
(BY) Deputy Clerk
APPENDIX B
03/13/2000 14:45 FAX fis % » w @005
~-
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.,
DEFENDANT-INTERVENORS’
Defendants, NOTICE OF APPEAL
and
ALFRED SMALLWOOD, et al,
Defendant-Intervenors.
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Notice is hereby given that Alfred Smallwood, David Moore, William M. Hodges, Robert
L. Davis, Jr., Jan Valder, Bamey Offerman, Virginia Newell, Charles Lambeth and George
Simkins, Defendant-Intervenors, hereby appeal to the Supreme Court of the United States from
March 8, 2000 Judgment and the March 7, 2000 order declaring North Carolina’s Twelfth
Congressional District unconstitutional and enjoining the State of North Carolina from using the
district in future elections.
This appeal is taken pursuant to 28 usc. Sec. 1253.
This the 13" day of March, 2000.
03/13/2000 14:46 FAX sid
Respectfully Submitted,
ALAINE R. JONES
Director-Counsel and President
NORMAN J. CHACHKIN
NAACP Legal Defense and
* Educational Fund, Inc.
99 Hudson Street, Suite 1600
New York, New York 10013
(212) 219-1900
TODD A. COX
NAACP Legal Defense and
Educational Fund, Inc.
1444 1 Street, N.W., 10th Floor
Washington, D.C. 20005
(202) 682-1300
ADAM STEIN
Ferguson, Stein, Wallas, Adkins
Gresham & Sumter, P.A.
312 West Franklin Street
Chapel Hill, North Carolina 27516
(919) 933-5300
03/13/2000 14:46 FAX 5 » ® 007
-
CERTIFICATE OF SERVICE
hereby certify that true and correct copies of Defendant-Intervenors’ Notice of Appeal
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
Robinson O. Everett
Everett & Everett
Post Office Box 586
Durham, North Carolina 27702
This 13th day of March, 2000.
JA Sh
£dam "Stein
APPENDIX C
nar Us UU Ut:azp criig FE Borie Urge:
IN THE UNITED STATES DISTRICT COURT cal FOR THE EASTERN DISTRICT OF NORTH CAROLISA | ED EASTERN DIVISION ry 4
A101 No. 4:96-CV-104-BO(3) or
CADW DANE oy en -~ TU ay ER; gr DISTRICT COURT Epps
~~ _DFr CLERK
MARTIN CROMARTIE, ef al,
Plaintiffs,
Vv.
JAMES B. HUNT, JR., in his official
capacity as Governor the State of North
Carolina, et al,
)
)
)
)
)
) OPINION
)
)
)
)
Defendants. )
)
BOYLE, Chief District Judge:
This matter is before the Court og remand from the United States Supreme Court's order
holding that the underlying casc was not suited for summary disposition and ordering this Court
to conduct further proceedings. Hunt v. Cromartie, 526 U.S. 541, L195 S.Ct. 1545, 143 L.Ed.
731 (1999). The underlying action challenges the congressional redistricting plan enacted by
the General Assembly of the State of North Carolina on March 31, 1997, contending that it
violates the Equal Protection Clause of the Fourteenth Amendment, and relying on the line of
cases represented by Shaw v. Hunt, 517 U.S. 899, 1165S. Ct. 1894, 135 L.Ed.2d 207 (1996)
("Shaw 11"), and Miller v. Johnson, 515 U.S. 900, 904, 115 S. Ct. 2475, 2432, 132 L.Ed.2d 762
(1995).
Following the Supreme Court's decision to remand, the parties undertook a new round of
discovery, ending in October, 1999. Betwesn November 29 and December 1, 1999, a trial was
held before his Court.
Mar 07 00 Q4:44p “1g @: BOYLE ren
BACKGROUND
In Shaw II the United States Supreme Court held that the Twelfth Congressional District .
tated by the 1992 Congressional Redistricting Plan (hereinafter, the "1992 Plan") was race--
based and could got survive the required "strict scrutiny." 517 U.S. 899, 116 S. Ct. 1894. The
five plaintiffs in Shaw lacked standing to attack the other majority-minority district (the First -
Congressional District ates the 1992 Plan) because they were not registered voters in the
district. Id. |
Soon after the Supreme Court ruled in Shaw I three residents of Tarboro, North
Carolina, filed the original Complaint in this action on July 3, 1996. These original Plaintiffs
resided in the First Congressional District (alternatively, "District 1") as it existed under North
Carolina's 1992 Plan. The Plaintiffs charged that the First Congressional District violated their
rights to equal protection under the United States Constitution because race predominated in the
drawing of the District. The action was stayed pending resolution of remand proceedings in
Shaw v. Hunt, and on July 9, 1996, the same three Tarboro residents joined the Plaintiffs in
Shaw in filing an Amended Complaint in that case, similarly challenging District 1.
By Order dated September 12, 1997, the three-judge panel in Shaw approved a
congressional redistricting plan enacted on March 3 , 1597, by the General Assembly asa
remedy for the constitutional violation found by the Supreme Court to exist in the Twelfth
Congressional District (alternatively, "District 12"). The Shaw rve Jude panel also dismissed
without prejudice, as moot, the plaintiffs’ claim that the First Congressional District in the 1992
Plan was unconstitutional. Although it was a final order, the September 12, 1997, decision of the
Shaw three-judge panel was not preclusive of the instant cause of action, as the panel was not
Mar 07 QJ 04:44p “gy @rc: BOYLE
presented with a continuing challenge to the redistricting plan.’
On October 17, 1597, this Court dissolved the stay previously catered in this malter, On
the same day, two of the original fee Plaintiffs, along with four residents of District 12, filed an
amended Complaint challenging the 1997 remedial congressional redistricting plan (the "1997
Plan"), and seeking a declaration that the First and Twelfth Congressional Districts in the 1997
Plan are unconstitutional racia] gerrymanders. A three-judge panel was designated by order of
the Chief Judge of the Fourth Circuit Court of Appeals, dated J anuary 23, 1998,
The Plaintiffs moved for a preliminary injunction on J anuary 30, 1998, and for summary
judgment on February 5, 1998. Defendants filed for summary judgment oa March 2, 1998, and 2
hearing on these motions was held on March 31, 1998. On April 3, 1998, a majority of the
three-judge panel issued an Order and Permanent Injunction finding that the Twelfth
Congressional District under the 1997 Plan was unconstitutional and granting Plaintiffs summary
judgment as to that district. The Order and Permanent Injunction also granted Plaintiffs’ Motion
for Preliminary Injunction and granted Plaintiffs request for 2 Permanent Injunction, thereby -
enjoining Defendants from conducting any primary or gencral election for congressional offices
under the 1997 Plan. Finally, the Court ordered the parties to file a written submission
addressing an appropriate time period within which the North Carolina General Assembly would
-judge panel in Shaw noted that there was
: Y approve the plan as an of the individual equal protection rights of those y challenged the legislature's creation of former District 12. Our approval thus does not—cannot—rup beyond the plan's remedial adequacy with respect to those parties and the equal protection violation found as to former District 12." Shaw v. Hunt, No. 92- 202-CIV-5-BR, at 8 (E.D.N.C. Sept. 12, 1997).
3
Mar G7 OQ 04:4Sp “gy @oc: BOYLE ry
be allowed the opportunity to correct the constitutional defects in the [997 Plan, and to present a proposed election schedule to follow redistricting which provided for a primary election process culminating in a general congressional election to be held on the date of the previously
scheduled genera] election,
| Defendants filed a Motion to Stay the April 3 Order, which was denied Dy this Court on April 6, 1998. On that date, Defendants appealed the denial of their Motion to Stay to the United
States Supreme Court, which upheld this Court's denial on April 13, 1998. Huntv. Cromartie, 323 U.S; 1068, 118 S.Ct. 1510, 140 L.Ed 24 662 (1998),
On April 14, 1998, this Court issued 2 Memorandum and Opinion issuing its findings of
fact and conclusions of Jaw regarding the April 3, 1998 order and denying Plaintiffs’ Motion for
Summary Judgment with regard to the fiw Congressional District under the 1997 Plar. On
April 17, 1998, Defendants filed 2 motion asking the Court to reconsider jts April § ore Cn
April 21, this Motion to Reconsider was denied.
On April 21, 1998, the Cour: issued 2 scheduling order, requiring that the Genera]
Assembly either submit a new plan to the Court nt the Department of Justice by May 22, 1998
or the Court would assure responsibility for drawing an interim plan. On May 22,1998,
Defendants submitted the 1998 Congrassiond Redistricting Plain ("the 1998 Plan"). The 1998
Plan contained a clause stating that, in the event that the United States Supreme Court found for
the State in its appeal, the 1998 Plan would no longer be ordered and thus North Carolina's
congressional districts would revert to the 1997 Plan.
On October 19, 1998, the Court granted a joint mation to stay all proceedings in this
action pending a decision by the United States Supreme Court in Hunt v. Cromartie, docketed in
the Supreme Court on September 16, 1998 as No. 98-450,
4
Mar G7 00 04:4Sp Hig) @-: BOYLE PL
On May 17, 1999 the United States Supreme Court entered an order holding that the
underlying case was not suited for summary disposition and ordering this Court to conduct
further proceedings. - Hunt v. Cromartie, 526 U.S. 341, 119 8. Ct. 1545, 143 L Ed. 731 (1999).
In compliance with the Supreme Court's decision, a three day beach trial was held in this
matter, fom November 29 to December 1, 1999. Plaintiffs called eight witnesses. Plaintiffs’
first wines was Senator Hamilton Horton, a resident of Forsyth County and longtime member
of the North Carolina Generz} Assembly. Senator Horton testified as to his belief that Forsyth
County and Winston-Salem were split along i lines in the 1997 Plan and that District 12 was
created with a predominantly racial motive,
Plaintifls' second witness was Representative Sore Wood, a resident of High Point,
North Carolina. Representative Wood testified that in 1997 he served in the North Carolina
General Assembly in a leadership position. Representative Wood ran for Congress in the
Twelfth District under the 1993 Plan and is convinced that the 1997 Plan divided High Pointand
Guilford County along racial lines for 2 predominantly racial motive,
As their third witness, Plaintiffs called Represcatative John Weatherly of King's
Mountain, North Carolina, a member of the North Carolina Genera] assembly during the
consideration of the 1997 and 1993 redistricting plans who had previously served on a
commission considering the State's legislative process. Representative Weatherly testified that
he introduced legislation to facilitate the redistricting process through the use of a redistricting
commission and that, on the basis of bis political and legislative experience, he believed that
both Districts 1 and 12 were drawn with a predominantly racial motive.
Plaintiffs’ fourth witness was R. QO. Everett, 2 longtime resident of Salisbury, North
Carolina who has been active in politics and het run for the state legislature. Mr. Everel
5
Mar 07 OO Q4:4Sp Hig ce sovie ce @n
testified that he was familiar with the congressional districts in the Salisbury and Rowan County
areas and is convinced that Distriot 12 was drawn with = predominantly racial motive.
Plaintiffs’ fifth Mme was JH. Froelich Jr, a lifetime resident of High Point, NC who
testified that he has been active jn state and [ocal polities and beifeves that Guilford County was
divided with a predominantly racial motive ; in both the 1892 and 1997 Plans and that the 1997
Plan's District 12 was drawn witha predominantly racial motive.
Plaintiffs’ sixth witness was Neil Williams, 2 resident of Charlotte who served on jts city
council, is familiar with the Meckisanny County precincts, and ran for Congress in the 1992
Plan's District 9. Mr. Will; liams testified that hed is convinced that Mecklenburg County was
divided along racial lines with a predominant racial motive and that the 1997 Plan's District 12
was drawn with a predominantly racial motive.
Plaintiffs’ seventh witness was Don Frey of the North Carolina General Assembly's
Information Systems Division, who presented statistical data from the General Assembly's
database, including relative numbers of persons moved from the 1952 Plan to the 1997 Plag, and
current precincts split by the 1997 Plan. |
Plaintiffs eighth and final witness, whose testimony carried over into the second day of
trial, was Dr. Ronald Weber of the University of Wisconsin. Dr. Weber testified as an expert
political scientist who has studied, consulted on, and testified in many redistricting cases.
Referring to maps and other data, Dr. Weber testified that race predominated in the construction
of Districts 1 and 12 under the 1997 Plan, and that cities, counties and precincts were divided
along racial lines. Dr. Weber concluded that no motivation other than race could adequately
explain the legislature's decisions to include, exclude, or split certain precincts.
Beginning on November 30, the second day of trial, the Defendants called four witnesses.
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bo
Defendants’ first witness was Senator Roy Asberry Cooper, III, who testified as to the legislative
history and enactment of the 1997 Plan in the North Carolina Senate, focusing on the creation of
Districts [ and 12. Senator Cooper testified that he was unsure whether he ey get the 1997 |
Plan pre-cleared by the Justice Department without creating a majority-minority First District.
Senator Cooper's testimony also brought to lighta February 10, 1997 email message (the
eahen. -Cooper Email") sent to him by Director of Bill Drafting Gerry Cohen, 2 state employee
charged with the technical aspect of drawing the districts in 1991, 1992, and 1997 Plans. The -
Cohen-Cooper Email stated, in part, that "By shifting areas in Beaufort, Pitt, Craven and Jones
Counties, I was able to boost the minority percentage in the first district from 48.1% to 49.25%.
The district was only plurality white, as the white percentage was 49.67%." . (Exhibit 58; Trial
Transcript at 438) The emai] continues, "This was all the district could be improved by
switching between the 1" and 3" unless I went into Pasquotank, Perquimans , or Camden. I was
able to make the district plurality black by switching precincts between the 1% and 4%
(Exhibit 58, Trial Transcript at 438) The Cohen-Cooper email also states that "I [Cohen] kave
moved Greensboro Black comuntinte nt; the 12 and now need to take bout [sic] 60,000 out of
the 12% [await your direction on this. (Exhibit 58, Trial Transcript at 412)
The senator stated that he did not remember receiving the Cohen-Co oper email and
denied having given Cohen "specific instructions." (Trial Transcript at 413, 438)
Additionally, Senator Cooper was questioned about a statement he made to the March 25,
1997 meeting of the House congressional redistricting committe, in which he argued that the
1997 Plan "provides for a fair geographical, racial and partisan balance throughout the state of
North Carolina." (Trial Transcript at 429) The senator claimed that the term "partisan balance"
referred to maintaining the six-six Democrat-Republican split in the congressional delegation,
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but denied that the term "racial balance" would refer to maintaining the ten-two balance between
whites and African Americans, (Trial Transcript at 429- -3Q) Senator Cooper admitted that race
was "one of the factors that was considered” in drafting the 1997 Plag, and that but denied that it
was the predominant factor, (Trial Transcript at 430)
Defendants began the third day of trial with their second witness, Representative W.
Edwin McMahan, who testified as to the legislative history and enactment of the 1997 Plan i in
the North Carolina House of ay especially the creation of Districts 1 and 12.
Representative McMahan claimed that race was not the predominant factor | in the Creation of
those districts.
Defendants’ third witness was Dr. David Peterson of the University of North Carolina at
Chapel Hill's Department of Geography and Sciences. Dr. Peterson presented a statistical
analysis of data regarding the question whether race predominated over party affiliation in the
construction of the 1997 Plan's District 12. Dr. Peterson also discussed the variance between
Democratic registration and voting behavior, and analyzed Dr. Weber's reasoning on the
predominance of race as a factor in the creation of District 12. In contrast to Dr. Weber, Dr.
Peterson's conclusion was that political considerations, rather than race, might possibly account
for the legislatuze' s decisions to include, exclude, or split certain precincts.
Defendants’ final witness was Gerry Cohen, Director of Bill Drafting for the North
Carolina General Assembly. Mr. Cohen testified as to the legislative history and enactment of
the 1997 Plan, especially with regard to Districts [ and 12, as well as the technical aspects of
redistricting, including the computer systems used.
FACTS
As discussed above, in 1992 the State of North Carolina established a new set of
8
proposed congressional districts. This 1992 Plan created two districts, the First ad the Twelfth,
that were challenged by a group of plaintiffs who Claimed that the State had Selpeatny
segregated voters into districts on the basis of race without compelling justification, In Shaw v.
Reno (“Shaw I), the United States Supreme Court held that this allegation stated a claim for
relief under the Equal Protection Clause of the Fouzaugth Amendment. 509 U.S. 63 0, 658, 113
s.ct 2816, 125 L.Ed.2d 511 (1993).
On remand, the District Court found that North Carolina’s Twelfth District created by the
1992 Plan classified voters by race, but that the panic lacked standing to challenge the First
District. In Shaw II, the United Bas Supreme Oost affirmed this finding and further held that
the State had not established (hat its Heerhot tent scheme was narrowly tailored to serve 2
compelling state interest, and therefore the 1992 Plan failed the requisite “strict scrutiny” test.
S17 U.S. 899, 116 S. Ct. 1894.
The North Carolina General Assembly convened in regular session on January 29, 1997,
and formed redistricting committees to address the defects found in tie 1992 Plan. These newly
formed House and Senate Committees aimed to identify a plan which would Har the
constitutional defects and receive the support of 2 majority of the members of the General
Assembly. Affidavit of Sonter Roy A. Cooper, IIT ("Cooper Aff") §3. In forming a workable
plan, the committees were guided by two avowed goals: (1) curing the constitutional defects of
the 1992 Plan by assuring that race was not the predominant factor in the new plan, and (2)
drawing the plan to maintain the existing partisan balance in the State's congressional delegation.
Cooper ALT 975, 8, 10, 14; Affidavit of Gary O. Bartlett Executive Secretary-Director of the
State Board of Elections ("Bartlett Aff"), Vol. 1 Commentary at 9-10. .
To achieve the second goal, the redistricting committees drew the new plan (1) to avoid
9
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drier od idiots girl Inia ome @®mn
placing two trchrlents 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. Cooper Aff.
114. The plan as enacted largely reflects these directives: incumbent Congressmen generzlly do
not reside in the same district, and each district retains at [east 60% of the population of the old
district. Cooper Aff. Y8, Affidavit of Representative W. Edwin McMahan ("McMahan AFF") 47.
lL The Twelfth Congressional District
District 12 is one of the six predominantly Democratic districts established by the 1997
Plan to malnitln the 6-6 partisan divisien in North Carolina's congressional delegation. District
12 is not a majority-minority district 2 but 46.67 percent of its total population is African-
American, Bartlett AE, Vol. I Commentary at 10 and 11. District 12 is composed of six
counties, all of them split in the 1997 Plan. The racial composition of the parts of the six sub-
divided counties assigned to District 12 include three with parts over 50 percent African-
American, and three in which the African-American percentage is under 50 percent. Declaration
of Ronald E. Webber ("Webber Dec.") {18. However, almost 75 percent of the total population
in District 12 comes from the three county parts which are majority African-American in
population: Mecklenburg, Forsyth, and Guilford counties. 1d. The other three county parts
(Davidson, Iredell, and Rowan) have narrow corridors which pick up as many African-
Americans as are needed for the district to reach its ideal size. 1d.
? The Twelfth isnot a majority-minority district as measured by any of three possible criteria. African-Americans constitute 47 percent of the total population of District 12, 43 percent of the voting age population of the District, and 46 percent of the registered voters in the District. Peterson Aff, at 8. : :
* An equitably populated congressional district in North Carolina needs a total population of dbaut 552,386 persons using 1990 Census data. Weber Dec. 39.
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Where Forsyth County was split, 72.9 percent of the total population of Forsyth County
allocated to District 12 is Afttoes American, while only 11.1 percent of its total population
assigned to » neighboring District 5 is African-American. Id. 120. Similarly, Mec cklenburg
County is split sa 51.9 percent of its tota] population allocated to District 12 is Aftican-
American, while only 7.2 percent of the total population assigned to adjoining District 9 is
African-American.
A similar pattem emerges when analyzing the cities and towns split between District 12
and its surrounding districts: the four largest cities assigned to District 12 are split along racial
lines. Id. Y23. For example, where the City of Charlotte is split between District 12 and adjacent
District 9, 59.47 percent of the population assigned to District 12 is African-American, while
only 8.12 percent of the Charlotte population assigned to District 9 is African-American.
Affidavit of Martin B. McGee ("McGee AFF "), Ex. L. And where the City of Greensboro is
split, 55.58 percent of the population assigned to District [2 is African-American, while only
10.70 percent of the Po ln ined to District 6 is African-American. Id.
An analysis of the voting precincts immediately surrounding District 12 reveals that the
legislature did not simply create a majority Democratic district amidst surrounding Republican
precincts, F or example, around the Southwest edge of District 12 (in Mecklenburg County), th
legislature included Misia the district's borders several precincts with racial compositions of 40
to 100 percent ASfconAmericen, while excluding from the district voting precincts with less
than 35 percent African-American population, but henvily Dermocratic voting registrations.
Among Mecklenburg County precincts which are immed ately adjacent to District 12, but not
inside it, are precincts with 58.8 18 percent of voters registered as Democrats, and precincts that
are 56.464 percent Democratic, 54.213 percent Democratic, 59.135 percent Democratic, 59.225
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yhrdust Bospiseseht 54.493 percent Democratic, 59.098 percent Democratic, 55.72 percent |
Democratic, 54.595 percent Democratic, 54.271 percent Democratic, 63.452 percent
emocratic, and 59.453 percent Democratic. Id., Ex. P. Similarly, Forsyth Coty precincts
that are immediately adjacent to, but not inside, District 12 include precincts with 57.371 percent
Democratic registration, 65.253 percent Democratic registration, 65.747 percent Democratic
registration, 65.747 percent Democratic registration, 76 dorcunt Demacratic registration, 33.057
percent Democratic registration, 35.907 percent Democratic registration, 56.782 perce
Democratic registration, 55.836 percent Democratic registration, and 60.113 percent Democratic
registration. Id., Ex. O. Finally, District 12 was drawn to exclude precincts with 59.679 percent
Democratic registration, 61.86 percent Democratic registration, § 3 145 percent Democratic
registration, 62.324 percent Dintorte pi 60.209 percent Democratic registration,
56.739 percent Democratic registration, 66.22 percent Democratic registration, 57.273 percent
Democratic registration, 55.172 percent Democratic registration, and 63.287 percent Democratic
registration, all in Guilford County. Id., Ex. N.
On the North Carolina map, District 12 has aa irregular shape and is barely contiguous in
parts. Its Southwest corner lies in Mecklenburg Cote very close to the South Carolina border,
and includes parts of Charlotte. The District moves North tbrough Rowan County and into
Iredell County. There it juts West to pick up parts of the City of Statesville. More than 75
percent of the Statesville population that is included in District 12 is African-American, while
only 18.88 percent of the population of Statesville excluded from District 12 is African-
American. McGee Aff, Ex. L. From Statesville, the District moves East into Rowan County.
There it dips to the South to include Salisbury, before turning to the Northeast and entering
Davidson County and the City of Thomasville. Over 4] percent of the populations of Salisbury
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and T foaviile that are included in District 12 are African-American, while only 15.39 and
9.55 percent, respectively, of those that are excluded from the District are African American. Id.
The District makes a northwesterly incursion into Forsyth County to include parts of Winston-
Salem, where 77.39 percent of the population within District 12 is African-American, and only
16.06 percent of the population left out is African-American. Id. The District moves to the East
and en Srnstionly before opening up again include the predominantly Africaa-
American parts of Greensboro, where the District ends.
Objective, numerical studies of the compactness of congressional districts are also
available. In his report, i Evaluation of North Carolina's 1598 Congressional Districts,"
Professor Gerald R. Webster, one of the Defendants’ expert witnesses, presents statistical
analyses of "comparator SR indicators” for North Carolina's congressional districts
under the 1997 Plan. In measuring the districts’ dispersion compactness’ and perimeter
compactness,’ Professor Webster offers two of the "nos commonly recognized and applied”
compactness indicators. Webster, at 13 (citing Pildes & Niemi, Expressive Harms, "Bizarre
Districts," and Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno, 92
Mich.L.Rev. 483, 571-573, table 6 (1993) (hereinafter, "Pildes & Niemi"); and see Bush v. Vera,
S17US. 952, —, 116 8. Ct. 1941, 1952, 135 L.Ed.2d 248 (1996) (citing Pildes & Niemi
* "Dispersion compactness” measures the geographic "dispersion" of a district. To
calculate this a circle is circumscribed around a district. The reported coefficient is the
proportion of the area of the circumscribed circle which is also included in the district. This
measure ranges from 1.0 (most compact) to 0.0 (least compact). Webster, at 14.
* "Perimeter compactness" is based upon the calculation of the district's perimeter. The
reported coefficient is the proportion of the area in the district rclative to a circle with the same
perimeter. This measure ranges from 1.0 (most compact) to 0.0 (least compact). Webster, at 14.
The equation used here is (((4 x IT) x Area of district) + (District's Perimeter2)). Webster, at
table 3.
:
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compactness factors as supporting evidence for holding three Texas congressional districts
unconstitutional).
In discussing the relative normalcy of various compactness measures, Pildes and Niemi
suggest that a "low" dispersion compactness measure would be equal to or less than 0.15. Pildes
. & Niemi, at 564. They suggest that a "low" perimeter compactness measure is equal to or less
than 0.05. Id. North Carolina's Twelfth Congressional District under the 1997 Plan has a
dispersion compactness indicator of 0.109 and a perimeter compactness indicator of 0.041.
Webster, at table 3. These figures are much lower than the mean compactness indicators for |
North Carolina's twelve congressional districts under the 1997 Plan. The average dispersion
compactness indicator for the State is 0.354, and the average perimeter compactness indicator is
0.192. 1d. The next lowest dispersion compactness indicator after District 12 is the 0.206 in the.
Fifth Congressional District, and the next lowest perimeter compactness indicator is the First
Congressional District's 0.107. Id.” |
Thus, it is clear that even after the changes detailed above, the primary characteristic of
the Twelfth District is its “racial archipelago,” stretching, bending and weaving to pick up
predominantly African-American regions while avoiding many closer and more obvious regions
of high Democratic registration, but low African-American population.
L. The First Congressional District
District 1 is another predominantly Democratic district established by the 1997 Plan.
Unlike District 12, itis a majority-minority district, based on percentages of the total population
of the District,” as 50.27 percent of its total population is African-American. Id., Vol. I
® While 50.27 percent of the total population of District [ is African-American, only 46.54 percent of the voting age population is African-American, based oa the 1990 census data.
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Commentary af 10. District 1s composed of ten of the 22 counties split in drawing the
statewide 12 district 1997 Plan. Weber Dec. 16. Half of the twenty counties represented in
District | are split. Id. Of the ten sub-divided counties wieelts District 3? four have parts
with over 50 percent African-American population, four others have parts with over 40 percent
African-American population, and two others have parts with site 30 percent African-American
population. Id, §17.
In each of the ten counties that are split between District | and an adjacent district, the
percent of the population that is African-American is higher inside the district than it is outside
the district, but within the same county. Id., {19 and Table 2. The disparities are less significant
than in the county splits involving District 12. Id., Table 2. For example, where Beaufort
County is split between Districts 1 and 3, 37.7 percent of the total population of Beaufort County
allocated to District | is African-American, while 22.9 percent of the total population of
Berti County assigned to District 3 is African-American,
Similarly, nine of the 13 cities and towns split between District | and its neighboring
districts are split along racial lines. 1d., 22. For example, where the City of New Bern is split
between District | and adjacent District 3, 48.27 percent of the population assigned to District 1
+ is African-American, while 24.49 penn: of the New Bem population assigned to District 3 is
Aftican-American. McGee Aff, Ex. 5.
Viewed on the North Carolina map, District 1 is not as irregular as District 12. In the
North, it spans 1S 1.2 miles across, from Roxboro, Person County, in the West, to Sunbury, Gates
County, in the East. Affidavit of Dr. Alfred W. Stuart ("Stuart Aff"); table 1. It is shaped
Bartlett Aff,, Vol. I Commentary at 10,
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roughly like thé state of Flarida, although the protrusion to the South from its “panhandle” is
only approximately 150 miles long (to Goldsboro, Wayne County, with two irregularities jutting
into Jones, Craven, and Beaufort Counties. Cooper Aff, attachment. These irregularities
surround the peninsular extension of the Third Congressional District from the East, allowing the
incumbent from the on Third Congressional District to retain his residence within the
boundaries of the same district, and avoiding placing two incumbents in District 1.
~The "comparator compactness indicators” from District 1 are much closer to the North
Carolina mean compactness indicators than are those from District 12. For example, District 1
has a dispersion compactness indicator of 0.317 and a perimeter compactness indicator of 0.107.
Webster, at table 3. This dispersion compactness indicator is not significantly lower than the
State's mean indicator of 0.354, and is Higher than the dispersion compactness indicators of
Districts 12 (0.109), 9 (0.252), and 5 (0.206). Id. It may be noted that Districts 5 and 9 are next
to, and necessarily shaped by, District 12. District 1 has a perimeter compactness indicator of
0.107, which is lower than North Carolina's mean perimeter compactness indicator (0.192), but
much higher than Pildes and Niemi's suggested "low" perimeter compactness indicator (0.05).
District 1's perimeter compactness indicator is also much higher than that of District 12 (0.041).
Id.
DISCUSSION
L Applicable Law and Standard of Review
The Equal Protection Clause of the United States Constitution provides that no State
"shall deny to any person within its jurisdiction the equal protection of the laws." U.S. Const.
amend. 14, § 1. The United States Supreme Court explained in Miller v Johnson, 515 U.S, at
904,115S.Ct. at 2482, that the central mandate of the Equal Protection Clause "is racial
16
Mar 07 0Q0 Q4:43p chi) Ee BAYLE [ET
neutrality in governmental decisionmaking." Application of this mandate clearly prohibits
purposeful discrimination between individuals on the basis of race. Shaw v. Reng, 509 U.S. 630,
642, 113 8. Ct. 2816, 2824, 125 L.E4.2d 511 (1993) ("Shaw [") (citing Washington v. Davis, 426
us. 229, 239, 96 S. Ct. 2040, 2047, 43 L.Ed.2d 597 (1976).
As the Supreme Court recognized, however, the use of this principle in "electoral
districting is a most delicate task." Miller 515 U.S, at 905, 115 S. Ct., at 2483. Analysis of
suspect districts must begin from the premise that "[1]aws that explicitly distinguish between
individuals on racial grounds fall within the core of [the Equal Protection Clauses] pelfiition.”
Shaw I, 509 U.S., at 642, 113 S. Ct., at 2824, Beyond that, however, the Fourteenth
Amendment's prohibition "extends not just to explicit racial classifications,” Miller, 515 Us. at
505, 115 S. Ct,, at 2483, but also to laws, neutral on their face, but "unexplainable on grounds
other than race," Arlineton Heights v. Metropolitan Housing Development Corp, 429 U.S. 252,
266, 97 S. Ct. 555, 564, 50 L.Ed2d 450 (1577).
In challenging the constitutionality of a State's districting plan, the "plaintiff bears the
burden of proving the race-based motive and may do so either through ‘circumstantial evidence
of a district's shape and demographics’ or through 'more direct evidence going to legislative
purpose. Shaw IL, S17 U.S. at—-, 116 S. Ct. at 1900 (quoting Miller, 515 U.S. at 916,115 S.
Ct. at 2488). In the fin analysis, the plaintiff must show "that race was the predominant factor
motivating the legislature's decision to place a significant number of voters within or without a
particular district" Id. (quoting Miller, 515 US., at 916, 115 S. Ct, at 2488).
Once 2 plaintiff demonstrates by a preponderance of the evidence that race was the
predominant factor in redistricting, the applicable standard of review of the new plan is "strict
scrutiny.” Thus, id Miller the Supreme Court held that strict scrutiny applies when race is the
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Mar 07 QO Q4:4Sp 09. BOYLE
"predominant" consideration in drawing the district lines such that "the legislature subordinate(s)
race-neutral districting principles . . . to racial considerations." 515 U.S., at 916, 1158.CL, at
2488. Under this standard of review, a State may escape censure while drawing racial
distinctions only if it is pursuing a "compelling state interest." Shaw II 517US.,at—, 1168S.
CL, at 1902.
~ However, "the means chosen to accomplish the State's asserted purpose must be
specifically and narrowly framed to accomplish that purpose.” Wyeant v, Jackson Bd. of Ed,
476 U.S. 267, 280, 106 5. Ct. 1842, 1850, 50 L.Ed2d 260 (1986) (opinion of Powell, J.). As the
Supreme Court required in Shaw I where 2 State's plan has been found to be a racial
gerrymander, that State must now “show not only that its setiadetog plan was in pursuit of a
compelling state interest, but also that its districting legislation is narrowly tailored ta achieve
that compelling interest." 517 US., at —, 116 S. Ct. at 1902.
We are cognizant of the principle that “redistricting and reapportioning legislative bodies
is a legislative task which the federal courts should make every effort not to preempt." Wise v.
Lipscomb, 437 U.S. 535, 539, 95 5. Ct. 2493, 2497, 57 L.Ed2d 411 (1978) (citations omitted),
"A State should be given the opportunity to make its own redistricting decisions so long as that
is practically possible and the State chooses to take the opportunity. When it does take the
opportunity, the Soren of the federal court is limited except the extent that the plan itself
runs afoul of federal law." Lawverv. Dep't of Justice, — U.S. —, —, 117 S. Ct. 2186, 2193,
138 L.Ed2d 669 (1997) (internal citations omitted).” Thus, when the federal courts declare an
"The dissent charges that we "j gnore(] the principles of federalism which require federal
courts to exercise restraint," and alludes to the dangers of "judicial activism." Thisisa disturbing accusation, as a federal court cannot shrink away from the enforcement of the United - States Constitution and federal law. The standard of equal prolection under law established in
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apportionment scheme unconstitutional-as the Supreme Court did in Shaw II-it is appropriate,
"whenever practicable; to afford a reasonable opportunity for the legislature to meet
constitutional requirements by adopting a substitute measure rather than for the federal court to
devise and order into effect its own plan. The new legislative plan, if forthcoming, will then be
the governing law unless it, too, is challenged and found to violate the Constitution.” Wise, 437
U.S, at 540, 98 S. Ct., at 2497.
BL. The Twelfth Congressional District
As noted above, the final decision of the three-judge panel in Shaw only approved the
1997 Congressional Redistricting Plan "as an adequate remedy for the specific violation of the
individual equal protection rights of those plaintiffs who successfully challenged the legislature's
creation of former District 12." Shaw v. Hunt, No. 92-202-CIV-5-BR, zt 8 (E.D.N.C. Sept. 12,
1997). This panel must thus decide whether the 1997 Plan's Twelfth District violates the equal
protection rights of the Plaintiffs who live within the district 2nd challenge its constitutionality.
the latter half of the 20" century is the direct result of federal courts’ defense of constitutional
principles in the face of state resistence. We would point our distinguished colleegue to the
words of the [ate Judge Frank Johnson:
It must be emphasized that, when governmental institutions fail to make ...
judgment and decisions in a manner which comports with the constitution, federal
courts have a duty to remedy the violation. In summary, it is my belief that the
judicial activism which has generated so much criticism is, in. most cases, not
activism at all. Courts do not relish making such hard decisions and certainly do
not encourage litigation on social and political problems.
But the federal judiciary in this country has the paramount and the
continuing duty to uphold the law. When a "case or controversy” is properly
presented, the court may not shirk its sworn responsibility to uphold the
Constitution and laws of the United States. The courts are bound to take
jurisdiction and decide the issues, even though those decisions result in criticism.
The basic strength of the federal judiciary has been, and continues to be, its
independence from political and social pressures.
Frank M. Iohnson, Jr., Judicial Activism is a Duty-Not an Intrusion, VIEWS FROM THE BENCH:
THE JUDICIARY AND CONSTITUTIONAL POLITICS 279, 283-4 (19859).
19
vor 07 00 onsee cic sore EERIE
In holding that District 12 under the 1992 Plan was an unconstitutional racial
gerrymander, the Supreme Court in Shaw II noted, "[n]o one locking at District 12 could
reasonably suggest that the district contains 2 ‘geographically compact’ Supls of any race."
S17US,, at—, 116 S. Ct., at 1906. The Shaw II Court thus struck the old District 12 as
unconstitutional as a matter of [aw. | In roles North Carolina's congressional districts in
1997 the General Assembly was, of course, aware that District 12 under the 1992 Plan had been
declared unconstitutional; curing the constitutional deficiencies was one of the legislature's
declared goals for the redistricting process. Cooper Af. §15, 8, 10, 14. |
Defendants now argue that the changes in District 12 between the 1992 and 1997 Plans
are dramatic th to cure it of its constitutional defects. They point to the fact that the new
District 12 has lost nearly one-third (31.6 percent) of the population from the 1992 district and
nearly three-fifths (58.4 percent) of the land. These numbers neither advance the Defendants’
argument nor ead the Court's inquiry. As Defendants themselves note, the Court's role is limited
to determining "whether the proffered remedial plaa is legally unacceptable because it violates
anew constitutional or statutory voting rights—that is, whether it fails to meet the rd standards
applicable to an original challenge of a legislative plan in place." McGhee v. Granville County,
860 F.2d 110, 115 (4* Cir. 1989) (citing Upham v. Seamon, 456 U.S. 37, 42, 102 S. Ct. 1518,
152171 LE&d 725 (1982). A comparison of the 1992 District 12 and the present District is
of limited value here. The issue in this case is whether District 12 in the 1997 Plan violates the
equal protection rights of the voters ana within it.
In Shaw I, the Supreme Court described the 1992 Plan’s District 12 as "unusually
shaped...approximately 160 miles long and, for much of its length, no Hr than the [Interstate]-
85 corridor. It winds in snake-like fashion through tobacco country, financial centers, and
1]
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manufacturing areas until it gobbles in enough Gules of black neighbarhoads." 509 U.S. at
635-6386, 113 S. Ct., 2t 2820-2821 (internal quotations omitted). The 1997 Plan’s District 12 is
similar: it is "unusually shaped.” it is “snake-like,” and it "gobbles in" ABirin. American
population centers. The evidence establishes that although its length has been shortened by
approximately 65 miles, it still winds from Charlotte to Greensboro along the Interstate-85
corridor, detouring to envelop heavily African-American portions of cities such as Statesville,
Salisbury, and Winston-Salem. It also connects communities not joined in a congressional
district, other than in the unconstitutional 1992 Plan, since the whole of Western North Carolina
was one district, nearly two hundred years ago.
As ised above, where cities and counties are split between the Twelfth District and
neighboring districts, the splits invariably occur zlong racial, rather than political, lines—the
parts of the divided cities and counties having a higher proportion of African-Americans are
always included in the Twelfth. Defendants argue that the Twelfth was drawn not with race, but
rather politics and partisanship in mind. They have described the District as a "Democratic
island in a Republican sea," and presented expert evidence that political identification was the
predominant Gator determining the border of District 12. Affidavit of David W. Peterson
(“Peterson Aff"). As the uncontroverted evidence demonstrates, however, the legislators
excluded many HEL precincts from District 12, even when those precincts
immediately border the Twelfth and would have established a far more compact district. The
only clear thread woven throughout the districting process is that the border of the Twelfth
district meanders to include nearly all of the precincts with African-American population
proportions of aver forty percent which lie between Charlotte and Greensboro, inclusive.
As noted above, objective measures of the compactness of District [2 under the 1997
2]
. 20
Plan reveal that it is still the most geographically scattered of North Carolina's congressional
districts. When vnirad to other previously challenged and reconstituted congressional
districts in North Caroling, Florida, Georgia, llinois, and Texas, District 12 does not fare well.
The District's dispersion and perimeter LI indicators (0.109 and 0.041, respectively)
are lower than those values for North Carolina's District 1 (0.317 and 0.107 under the 1997
Blan). Similarly, the District suffers in TR to Florida's District 3 (0.136 and 0.03),
Georgia's District 2 (0.541 and 0.411) and District 11 (0.444 and 0.259), [ilinais' District 4
(0.193 and 0.026), and Texas District 18 (0.335 and 0.151), District 23 (0.3 84 and 0.178), and
District 30 (0.383 and 0.130).
Additionally, Plaintiffs’ expert, Dr. Weber, showed tme a again how race trumped
party affiliation in the construction of the 12° District and how political explanations utterly
failed to explain the composition of the district, (Trial Transcript at 162-3, 204-5, 221, 251, 262,
288. Of particular note is Dr. Weber's contention that a much more compact, solidly Democratic
12® District could have been created had race not predominated over traditional political
considerations in the redistricting process. (Trial Transcript at 220-1) Additionally, Dr. Weber
showed that, without fail, Democratic districts adjacent to District 12 yielded their minority areas
to that district, retaining white Democratic precincts. (Trial Transcript at-255-6). This testimony
served to undermine Defendants’ contention that race was merely a factor in creating the 1997
Plan's 12 District, and that a desire to place high-performance Democratic areas (which happen
to contain minority populations) within Democratic districts could explain the construction of
the 12%,
The conclusion that race predominated was further bolstered by Senator Cooper's
allusion to a need for "racial and partisan balance," cited above. The senators contention that
22
Mar 07 0Q 04:S51p cH @-- BOYLE
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 maintenance of a ten-two balance between whites and African Americans is simply
not credible. (Trial Transcript at 429-30)
Dr. Weber, who has testified as an expert in redistricting cases in Louisiana, Texas,
Georgia, Virginia and Florida, also presented a convincing critique of the methodology used by
Defendants’ expert witness, Dr. Peterson. (Trial Transcript at 145) Dr. Weber characterized Dr.
Peterson's boundary segment analysis as non-traditional, creating "erroneous" results by
“ignoring the core" of each district in question. (Trial Transcript at 222-4) In summary, Dr.
Weber found that Dr. Peterson's analysis and report "has not been ap propriately done," and was
therefore “unreliable” and not relevant. (Trial Transcript at 232)
Finally, the Cooper-Cohen email, discussed above, clearly demonstrates that the chief
architects of the 1997 Plan had evolved a methodelogy for segregating voters by race, and that
they had applied this method to the 12% District. The Cooper-Cohen email refers specifically to
the categorization of sections of Greensboro as "Black," and a scheme by which this section was
added to the 12™ District, creating a need to "take about 60,000" other citizens out. (Exhibit 58)
It is also eleva as evidence of the means by which the 1997 Plan's racial gerrymandering
could be achieved with scientific precision, as the precise racial composition of another district
(the First) is discussed at length, along with plans to "improve" that district by "toost{ing] the
minority percentage.” (Exhibit 58)
The computer system used by the Shay the capacity to identify and apportion ith
based on race, and to determine the exact racial make-up of each district. The Cohen-Cooper
Mar 07 00 04:5Sp 1 @ 8 BOYLE org @mn
email reveals that exact racial percentages were used when constructing districts. Given that the
Supreme Court struck down the 1992 Plan's 12 District, the clear inference here is that a motive |
existed to compose a new 12" District with just under a majority minority rr ocder for it not to
present a prima facie racial gerrymander. In fact, Senator Cooper argued before the legislature
: that the Shaw test for constitutionality would not be triggered because the 12" District was not a
majority minority district. (Trial Transcript at 440-1) But using 2 computer to achieve a district
that is just under 50% minority is no less a predominant use of race than using it to achieve a
district that is just over 30% minority.
Based on the extensive direct and circumstantial evidence presented at trial, the Court
finds as a matter of fact that the General Assembly, in redistricting, used criteria with respect to
the Twelfth District that are facially race driven. It is clear that the Twelfth District was drawn
to collect precincts with high racial identification rather than political identification.
Additionally, the evidence demanstrates that Britis with higher partisan representation (that
is, more heavily Democratic precincts) were bypassed in the drawing of District 12 in favor of
precincts with a higher African-American population. The legislature eschewed traditional
districting criteria such as contiguity, geographical integrity, community of interest, and
compactness in redrawing the District as part of the 1997 Plan. Instead, the General Assembly
utilized race as the predominant factor in drawing the District?
*Senator Cooper claimed that the final percentage composition of District 12 was sheer
happenstance. (Trial Transcript at 427-8) The explicit discussion of precise percentages in the
email belies this characterization, ;
® The Supreme Court has indicated that, when drawing congressional districts, race may
not be used as a proxy for political characteristics. Vera v. Bush. 517 U.S. 952, —, 116 S. Ct.
1941, 1956, 135 L.Ed.2d 248 (1996). !
24
P.
Mar 07 OQ 04:5Sp cri: BEQYLE ome@®rm
This Court finds that, in contrast to the state's claims regarding the 1 District, no
evidence of a compelling state interest in utilizing race to create the new 12" District has been
presented. Putter even if such an interest did exist, the 12* District is not sarrewly tailored and
therefore cannot survive the prescribed “strict scrutiny.” The 1997 Plan's District 12 is an
impermissible and unconstitutional racial gemymander in violation of the Equal Protection
Clause.
To remedy these constitutional deficiencies, the North Carolina legislature must redistrict
the 1997 Plan in such 2 way that it avoids the deprivation of the voters’ equal protection rights
not to be classified on the basis of race. This mandate of the Court leaves the General Assembly
free to use other, proper factors in rediontatios the 1997 Plan. The legislature may consider
traditional districting criteria, such as incumbency considerations, to the extent consistent with
curing the constitutional defects. See Shaw II, 517 U.S. at —, 116 S. Ct,, at 1501 (describing
“race-neutral, traditional districting criteria"), 12
LI. First Congressional District
The three-judge panel in Shaw never ruled on the constitutionality of the 1992 Plan's
First Congressional District. Standing problems on the part of the Shaw plaintiffs forced that
court to narrow its focus to adjudicate only the issues raised regarding the Twelfth District. A
comparison of the First and Twelfth Districts under the 1992 Plan reveals, however, that they are
similarly egregious in their construction and that the First District would certainly have been
“Our distinguished colleague's dissent treats the standing of Plaintiff Linville at some length Defendants moved to dismiss him from the instant suit, arguing that he did-not live within the 1997 Plan's 12* District. This motion was degled at trial. Trial Transcript at 327. As there is standing on behalf of a plaintiff or plaintiffs with respect to each of the challenged districts, Plaintiff Linville's standing is moot as to this Court's ability to reach a decision in the instant case. Thus, we decline to elaborate on the standing issue,
25
subject to the same finding that it was nat narrowly tailored. Both were majority-minority :
districts under the 1992 Plan, and neither evidenced even minimal geographical compactness.
The 1997 Plan's First District, ence again presents this Court with a majority-minority
district, this Hme containing a population that is 50.27 percent African-American, as opposed to
the Twelfth District's 46.67 percent. The First District is, eer far more compact than the
Twelfth and its shape is less irregular, as we have seen above,
. Thus Court finds as a matter of fact that, under the 1992 Plan, the First District was not |
narrowly tailored and therefore (hat district was in violation of the Gensihation. The evidence
presented by the Defendants does not dispute this finding.
The statements of several key players in the 1997 redistricting process clearly show that,
in an effort to gain pre-clearance under the Section 2 of the Voting Rights Act, 42 U.S.C. § 1973,
they allowed race to predominate in the creation of the 1* District. The Cohea-Cooper email is
one such clear example, specifically referencing the desire to "boost the minority percentage in
the first district" to create an "improved" district. The email €Xpases a process in which voters
were categorized by race, then shifted in and out of the 1* District by a computer program until a
precise percentage of minority voters in the district was achieved. No other credible explanation
has been offered.
The fact that race Soloists in the construction of the [® District is not surprising,
The legislators faced the difficult task of remedying the unconstitutional aspects of the 1992
Plan's 1* District while complying with the mandates of the Vating Rights Act, discussed below.
Indeed, Senator Cooper acknowledged that he felt he had (0 have over 50% minority
representation in the First District. (Trial Transcript at 440) This admission reveals that the
racial composition of the district was seen as a mandate, a necessity.
26
FP.
Mar 07 OQ 04:58p wy 3 BAYLE wr Sm
Thus, we further find that, in its 1997 Plan, the State continued to use race as the
predominant factor in creating the majority-minority First District, and thus strict scrutiny must
apply. This does not end our ues however. Defendants may show that die diol was
narrowly tailored to achieve a compelling government interest.
Section 2 of the Voting Rights Act provides that "no voting qualification or prerequisite
to voting or standard, practice, or procedure shall be imposed or applied by any S tate ... ina
manner which results in a denial or abridgement of the right of any citizen of the United States to
vote on account of race or colog, .... " 42 U.S.C § 1973( (a) (1988). Congress instructed the
courts, when determining whether a voting standard, practice, or procedure violates this
prohibition, to examine "the totality of the circumstances" to ascertain whether "the political
processes leading to nomination or election” are equally Goer to citizens of all races. Id. §
1373(b). Courts may also consider "[t]ke extent to which members of a protected class have besa
elected to office," but the Act expressly states it does not establish "a right to have members of a
protected class elected in numbers equal to their proportion in the population.” Id.
In Thomburg v. Gingles, the Supreme Court first examined the 1982 amendments to the
Act. 473 U.S. 30, 34; 106 S.Ct. 2752, 2758; 92 L.Ed.2d 25 (1986). The Court found that the
1982 amendments no longer epulved a showing of intentional discrimination in order to prove a
violation of the Act. Id. at 35, 106 S.Ct. at 2758. The Court identified the following "necessary
preconditions" to a § 2 claim:
"First, the minority group must be able to demonstrate that it is sufficiently large and
geographically compact to constitute a majority in a single-member district.... Second, the
minority group must be able to show that it is politically cohesive... Third, the minority must be
able to demonstrate that the white majority votes sufficiently as a bloc to enable it--in the
27
Mar 07 00 04:36p my 3 BOYLE nem @®
. absence of special circumstances, such as the minority candidate ruaning unopposed-- usually to
defeat the minority's preferred candidate.” Gingles, 478 U.S. at 50-51, 106 S.Ct. at 2766-67
(footnotes and internal citations omitted). Once these preconditions are met, a court must
consider the factors identified in the Senate Report accompanying the 1982 amendments. 1d. at
48, 106 S.Ct. at 2765."
Defendants presented evidence at trial to show that there was a strong basis for the
Generd) Assembly to have believed, at the time of the 1997 Plan's drafting, that the three Gingles
preconditions and several of the factors set forth in the Senate Report existed in North Carolina.
Specifically, the Defendants presented evidence that the African-American population in the
area encompassed by District | was and is sufficiently large and geographically domoatt to
constitute a majority in a congressional district. Additionally, Defeadants contend, and Plaintiffs
have stipulated for the purposes of this tnal, that the African-American population is politically
cohesive. Further, Defendants contend, and Plaintiffs have stipulated for the purposes of this
trial, that the white majority votes sufficiently as a block to often enable it to defeat the
minority's preferred candidata. Finally, all parties agree that, for many decades, African-
Americans in North Carolina were victims of racial discrimination, and that a substantial
y history of official discrimination in the state or political {on that touched the right of the members of the minority group to register, to vote, or otherwise ta participate in the democratic process; (2) the extent to which voting in the election subdivision is racially polarized; (3) the extent
election districts, majority vote requirements, anti-
that may enhance the opportunity for diseriminatio
public office in the jurisdiction. Sen.Rep. No. 417, 97(k Cong,,
N. 177, 206-07. This list of factars, however, "is neither es, 478 U.S. at 45, 106 S.Ct. at 2763.
28
AONE fl FL NT NANA wre @mm
majority of the State's African-American population is still at a disedvantage in RO to
white citizens with respect to gems, housing, education and health.
This Court finds that Defendants have prised sufficient evidence to establish that the
State Legislature of North Carolina did have a compelling reason to address race in the
construction of the First District under the 1997 Plan. That compelling reason was the need to
satisfy Section 2 of the Voting Rights Act in order to ensure that the State's African-American
population have equal access to the political process, |
Further, this Court fds that the specific composition of the First District's borders, while
predominated by race, was narrowly tailored to meet the Section 2 requirements while also
addressing other traditional, political considerations, including the desire to protect incumbency,
both of a Democrat in the First District and a Republican in the Third District. The splitting of
couaties and lack of compactness display the interplay between these considerations: the
borders were drawn to avoid putting two incumbents in a single district; the State Legislature
intended to exclude as much of the First State Senatorial District from the 1997 Plan's 1% District
as possible, resulting in modifications that forced the district's borders south and west. While
race predominated, the legislature resisted the temptation to create a district reminiscent of the
1592 Plan's 1" District, which reflected little or no effort to achieve a narrow tailoring.
Thus, this Court finds that the 1997 Plan's 1* District meets the requisite standard of strict
scrutiny. Race, while the predominant factor in its composition, was not impermissibly used in
establishing its borders. There was a compelling state interest in obtaining pre-clearance under
Secticn 2 of the Voting Rights Acl, and the 1® District was narrowly tailored to meet this
interest. Thus we find that the 1997 Plan's [* District does not present an unconstitutional racial
gerrymander.
29
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Mar 07 OQ 04:56p cn) ec BOYLE rn @@mmn P.7
CONCLUSION
For the reasons Phonic above, this Court finds that the 1997 Plan's Twelfth District
continues to be unconstitutional 2s presented. Defendants are enjoined from oilhe the
unconstitutional District 12 in future elections. The 1997 Plan's First District does not violate
the Constitution and may thus be used in future elections. Defendants will have an opportunity
to correct the constitutional defects in the 1997 Congressional Redistricting Plan stemming from
the 12" District, in default of which the Couct must undertake the task,
SO ORDERED,
~
This Z day of March, 2000.
TERRENCE W. BOYLE
Chief United States District Judge
RICEARD L. VOORHEES
United States District Judge
By: Yeast 0 [3
TERRENCE W. BOYLE
CHIECF UNITED STATES DISTRICT JUOGE
5 are and correct ‘Car Bans nba
of the criginzl
David W. Daniel, Clerk
United States District Court
Eastem pA! of Noth Carolina
AA —— {ANA co
"7 Deputy Clerk
30
Mar 07 00 04:57p ci @.. BOYLE a
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
No. 4:96-CV-104-BO(3)
MARTIN CROMARTIE, ef al,
Plaintiffs,
v.
CONCURRENCE AND DISSENT
JAMES B. HUNT, JR., in his official
capacity as Governor the State of North
Carolina, ef al, .
Defendants.
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THORNBURG, District Judge, sitting by designation as Circuit Judge, concurring in part and
dissenting in part:
I join the majority in concluding that the First Congressional district is constitutionally
drawn, but respectfully dissent from the reasoning of the majority in reaching that conclusion. I
dissent from the majority opinion finding the Twelfth Congressional district to be an
unconstitutional recial gerrymander. [ also write to address the issue of Ronald Linville’s right
to remain a parly plaintiff in this action.
I. BACKGROUND
In early 1997, the North Carolina Genera] Assembly, for the third time in the decade,
undertook the responsibility of redrawing the boundaries of North Carolina’s congressional
districts.” Operating under a court imposed deadline of April 1997 to redraw congressional
* The General Assembly redrew the districts for the fourth time in 1998 pursuant to this Court’s order, and now will be required to do so for the fifth time in early 2000.
1
Mar 07 00 04:57p cr ®.. BOYLE 1 ®®m
district boundaries, the politically divided General Assembly faced the task of quickly reaching a
consensus on the divisive and inherently political issues involved. In addition to the traditional
constituency concerns, the pull of party loyalty, incumbency issues, special Interests, and turf
protection, the General Assembly was forced to contend with a host of outside forces seeking to
influence the process. Looming over the ususal morass of political decision-making was the
federal court system, a Justice Department which from past experience was willing to withhold
preclearance under Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c¢, and the ever present
threat of litigation under Section 2 of the same Act. In addition, able private litigants on both
sides of the issue stood ready to sue the State of North Carolina in the event that racial motives
controlled the process, or in the event that the process was not racially fair. From this cauldron
‘of conflicting agendas and influences, the majority concludes that the predominant motivating
factor of the 170 legislators in the General Assembly as they drew the redistricting plans for the
First and Twelfth Districts was race. This isa particularly disturbing conclusion under the
history, the facts, and the law of this case.
That the General Assembly was not completely paralyzed by the demanding task it faced
is a testament to the efforts of the legislators themselves, and particularly to the committee
chairmen who crafted a plan that would pass both hotisen, Central to the General Assembly’s |
motivation was the desire not to forfeit the responsibility of drawing constitutions districts to
the federal courts, as had happened in Georgia, Texas, and Illinois. To suggest that the General
Assembly could navigate these treacherous waters without being aware of the issue of race
would be absurd because race loomed as the reason why the General Assembly had to redraw
districts in the first place. But, the 1992 Plan is not the plan being considered by this Court. The
conclusion that racial motivations impermissibly predominated, in a process where
2
Pe
Mar 07 00 04:57p . 0. BOYLE 9m
consciousness of race is not prohibited,” fails to evaluate Plaintiffs’ burden of proof and
insufficiently credits the plain and direct testimony of the two state legislators who were the
driving force behind the 1997 congressional redistricting plan.
11. JUDICIAL DEFERENCE
The Constitution leaves with the States primary responsibility for apportionment of their
federal congressional districts. U.S. Constitution, Article I, § 2, as amended by Amendment
XIV § 2. “We say once again what has been said on many occasions: reapportionment is
primarily the duty and responsibility of the State through its legislature or other body, rather than
of a federal court.” Chapman v. Meier, 420 U.S. 1, 27 (1975) (citing Renildi Sims, 377 U.S.
533, 586 (1964)) (other citations omitted). In the matter of redistricting, courts owe substantial
deference to the enti which is fulfilling “the most vital of local functions” and is entrusted
with the “discretion to exercise the political judgment necessary to balance competing interests.”
Miller v. Johnson, 515 U.S. 900, 915 (1995). The Court must presume the legislature acted in
goad faith absent a sufficient showing to the contrary. Id. Consequently, this Court must grant
North Carolina’s General Assembly substantial deference concermung its decisions related to the
1997 redistricting plan. In deciding this case we should avoid the temptation to legislate for the
General Assembly. Jd. Under the facts of this case and the Supreme Court's decisions, judicial
activism is neither necessary nor desirable. The majority would mask its unwarranted intrusion
into the North Carolina legislative process by correctly observing the duty of a federal court to
Y In dealing with an equal protection lawsuit involving mixed motives in the drawing of
congressional districts, “strict scrutiny does not apply merely because redistricting is performed
with consciousness of race.” Bush v, Vera, 517 U.S. 952, 958 (citing Shaw v. Reno, 509 U.S.
630, 646 (1993) (Shaw I)). i
.10
Mar 07 00 04:58p + ® ®. BOYLE
“uphold the Constitution and laws of the United States.” Majority Opinion, at 18-19, n.7. They
ignore, however, Judge Johnson's qualifying words: “[It is] when governments] institutions fail
to make... judgments and declelons In a manner which comports with the constitution [that]
federal courts have a duty to remedy the violation.” Id. Thus, while espousing judicial restraint, -
the majority will again declare the Twelfth District unconstitutional and return the districting
plan to the General Assembly for correction. This approach ignores the principles of federalism
which require federal courts to exercise deference and restraint in altering the state redistricting
decision in the first place.
III. STANDARD OF REVIEW
Strict scrutiny should not be applied to the decision of North Carolina’s General
Assembly merely because redistricting was performed with consciousness of race. See n.1,
supra. As previously observed, the Voting Rights Act dictates that race may not be ignored.
See e.g., Johnson v. Grandy, 512 U.S. 997 (1994); Holder v. Hall, 512 U.S. 874 (1994);
Voinovich v. Quilter, 507 U.S. 146 (1993). For strict scrutiny to apply, the burden is on the
Plaintifis to show that “other, legitimate districting principles were ‘subordinated’ to race,” i.e.
that race was “the predominant factor motivating the eletite [redistricting] decision.”
Bush, 517 U.S. at 959 (citing Miller, 515 U.S. at 916) (emphasis added). Plaintiffs may mest
this burden through either “circumstantial evidence of a district's shape and demographics” or
through “more direct evidence going to legislative purpose.” Miller, 515 U.S. at 916, In Miller,
the Supreme Court recognized certain factors as legitimate districting principles, “including, but
not limited to compactness, contiguity, and respect for political subdivisions or communities
defined by actual shared interests.” Id. Incumbency protection, at least in the limited form of
4
“avoiding contests between incumbent[s),” has also been recognized as a legitimate state goal.
Bush, at 964 (citations omitted). Likewise, the Supreme Court has repeatedly held that states
“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 is conscious of that fact” Hunt
v. Cromartie, 526 U.S. 541, ___, 1198. Ct. 1545, 1551 (1999) (emphasis added).
Evidence 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.
Id. Only where race predominates over legitimate districting principles will strict scrutiny apply
to a State’s redistricting decision.
The burden of proving that racizl motives predominated over legitimate districting
principles is not easily met. This difficulty is due in part to the inherent nature of any legislative
decision where numerous motives and influences are at work. Concurring in the Miller decision,
Justice O'Connor further clarified the rigorous nature of the Plaintiffs’ burden:
I understand the threshold standard the Court adopts... to be a demanding one. To invoke strict scrutiny, a plaintiff must show that the State has relied on race in substantial disregard of customary and traditional districting practices . . , . [Alpplication of the Court's standard helps achieve Shaw's basic objective of making extreme instances of gerrymandering subject to meaningful judicial Ieview,
Miller, 515 U.S. at 928-29 (crmphasis added). See also, Quilter v. Voinovich, 981 F. Supp.
11032, 1044 (N.D. Ohio 1997) (“We therefore follow Justice O’Connor’s lead in applying a
demanding threshold that allows states some degree of latitude to consider race in drawing
districts.”), aff’d, 523 U.S. 1043 (1998). As a result of this high threshold, a State which does
no more than take race into consideration in the redistricting process will not be subjected to
3
w1l2
Mar 07 00 04:58p cu 0. BOYLE oy
strict scrutiny, Bush, 517 U.S. at 958. Even a Stale’s decision to intectionally create a
minority-majority district will not necessarily be subject to strict scrutiny. Id
‘In applying this high threshold standard to the case at hand, it is this Court's
responsibility to closely examine all of the evidence to determine whether by a preponderance of
the evidence the North Carolina General Assembly substantially disregarded legitimate
districting principles, including Intiinni protection and political motivations, and
subordinated those principles to race in the districting process. Only then can strict scrutiny be
applied to the decision of the state legislature. F urthermore, each challenged district must be
evaluated separately to determine whether strict scrutiny will apply to that district. In situations
where “it is clear that race was not the only factor that motivated the legislature to draw irregular
district lines,” each challenged district must be scrutinized individually to determine whether the
legislature relied on race in substantial disregard of legitimate districting principles. Bush, 517 |
U.S. at 965. The legisiature’s motivation as to one district cannot be transferred to another.
IV. DISCUSSION
Initially, I note that the 1997 plan must be addressed based on its own merit, not on any
resemblance to the 1992 Plan. The majority opinion appears to have recognized this rule of law
in noting that the Court’s role is limited ta determining “whether the proffered remedial plan is
legally unacceptable because it violates anew constitutional or statutory voting rights—that is,
whether it fails to meet the same standards applicable to an original challenge of a legislative
plan in place.” McGhee v. Granville County, N.C., 860 F.2d 110, 115 (4® Cir. 1988) (citing
Upham v. Seamon, 456 U.S. 37, 42 (1982)). Nevertheless, the majority makes reference to the
“unconstitutional” 1992 Plan in criticizing both the First and Twelfth Districts under the 1997
6
Mar 07 00 04:58p ci 9. BOYLE or @@mm
Plan. This criticism essentially mirrors the “footprint” argument advanced by Plaintiffs, and
therefore is equally flawed.
"Plaintiffs contend that any district which is based on the “footprint” of a prior
unconstitutional diac is inherently invalid. This suggests that the legislature must begin with
a completely clean slate in order to wipe away the vestiges of prior unconstitutional districts.
Thus, the North Carolina General Assembly could not use the unconstitutional 1992 Plan as the
beginning point for creating the 1997 Plan. However, given that the task of the General
Assembly in 1997 was to correct the defects of the 1992 plan, it should be permissible to use the
1992 Plan as the starting point for creating a constitutional plan. Further, it would be illogical to
argue that the unconstitutional aspects of a decision made by legislators in 1992 somehow taints
the actions of a completely different legislative body in 1997. Most importantly, requiring a
legislature to start completely from scratch makes their task nearly impossible because
congressional incumbents and state legislators will invariably demand the preservation of as
much of the geographic core of districts as possible, a political reality explained in testimony at
the trial." Indeed, the undersigned can think of no reason his a legislature may not simply
address the offensive aspects of an unconstitutional district, cure those defects, and thereby
create a constitutional district.
* Indeed, Senator Roy Cooper, chairman of the Senate Redistricting Committee testified at trial that he did not think the General Assembly could have drawn a plan from square one which would have passed because state legislators and congressional incumbents both wanted districts which preserved as much of their geographic cores as possible. Trial Transcript, at 350, lines 12-25. Likewise, Plaintiffs’ own expert agreed that legislatures generally try to avoid disrupting the relationship between incumbents and their voters, testifying that “whatever districts [incumbents] end up with, they tend to, in the end, like and wish to preserve as long as they can. That's been an observation over decades and decades of study of redistricting.” Id., at 279-80.
Mar 07 00 04:5Sp cu ®. BOYLE
A. The Twelfth Congressional District
To show that racial motives predominatonty the drawing of the Twelfth District,
Plaintiffs had the burden of proving by a preponderance of the evidence that the legislature
substantially disregarded legitimate districting criteria and subordinated those criteria to the
Mibtomes racial motivation. A thorough treatment of Plaintiffs’ burden is noticeably absent from
the majority opinion, but this burden must not be overlooked or disregarded. Plaintiffs quite
simply have failed to carry their burden through either direct or circumstantial evidence,
Defendants, on the other hand, have produced ample and convincing evidence which
demonstrates that political concerns 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.
Finding that race was the predominant motivation and applying strict scrutiny to the
Twelfth District fails to evaluate the redistricting process within the context of the legislative
environment where such decisions occur,
Passing a redistricting plan in a limited time period, under a federal court order, and in a
politically divided General Assembly seemed like an impossible task early in 1997. Trial
Transcript, at 475, lines 5-12. In order to succeed, the chairmen of the House and Senate
Redistricting Committees a the necessity of creating a plan which would garner the
support of both parties and both houses. Id., at 335, lines 4-10; at 338, lines 19-22.
® Plaintiffs conducted their case zs if they were entitled to a presumption that race predominated and merely had to rebut Defendants’ efforts to overcome this presumption. However, Plaintiffs are entitled to no such presumption, not by their past success in this area or previous success in this case at the summary judgment stage. The burden of praoflies squarely on the shoulders of Plaintiffs, and they have failed to adequately carry that burden.
8
Consequently, they set out to designa plan which, in addition to addressing the constitutional
deficiencies of past plans, would protect incumbents and thereby maintain the then existing 6-6
partisan split amongst North Carolina’s congressional delegation, I4., at 47, lines 13-23; at
338, lines 1-7. Because both the First and Twelfth Districts had Democrat incumbents, and
maintaining the 6-6 split was viewed as imperative, preserving a strong Democratic Twelfth
District which protected incumbent Mel Watts’ political vate was Sbeoluedly necessary.
Affidavit of Roy A. Cooper, IL, filed March 2 1998, at 4 10. In creating such a district,
common sense as well as political experience dictated ascertaining the strongest voter-
performing Democratic precincts in the urban Piedmont Crescent. That 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." Those precincts
were included in the Twelfth District based primarily upon their Democratic performance, not
their racial makeup.” North Carolina's legislative leaders have openly admitted to being aware
of the race issue, to being conscious of the racial percentages of the districts they drew, and to
recognizing that their redistricting plan could potentially be subjected to federal scrutiny yet
again as a challenged racial gerrymander.'® Yet, these were merely some of the numerous
'“ All parties agree that African-American voters in North Carolina are extremely loyal Democratic voters, with over 95% of African-American voters in North Carolina registered and voting accordingly, Trial Transcript, at 388, lines 2-7.
"The fact that the majority of African-American legislators in the North Carolina House of Representatives voted against the enactment of the 1997 redistricting plan, Trial Transcript, at 478, lines 3-13, tends to undermine the conclusion that the legislature designed districts which impermissibly favored African-Americans.
"The majority points to the Cooper-Cohen e-mail as evidence ofa “methodology for segregating votes by race.” Majority Opinion, at 23. The majority also suggests that sinister inferences arise from Senator Cooper's statements on the legislature floor that the Shaw test for
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political considerations which legislative leaders had to account for in designing a plan which
would pass,
. Transcript, at 486-88. In other words, the statistical evidence before the Court does not support
the proposition that race predominated as a motivation. Yet, it is this Same equivocal statistical
evidence which forms the backbone of the Plaintiffs’ case.
In an attempt to rebut this argument, Plaintiffs relied primarily on the testimony of their
expert witness, Dr. Ronald Weber." Dy. Weber also plays a prominent role in the majority
—
constitutionality mi ght not be triggered since the Twelfth District was below 50% African- American. However, thig anecdotal evidence does little more than reinforce what is already known, and what is not constitutionally impermissible: North Carolina’s legislative leaders were conscious 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. Although it is indeed helpful and important to examine facts such as these which arguably Support Plaintiffs’ position, they must be evaluated within, the context of Plaintiffs’ heavy burden in this case, something the majority fails to do, When viewed in proper context, these evidentiary revelations contribute little to Plaintiffs’ efforts to show that racial motives predominated. And they certainly do not amount to the “smoking gun" status which Plaintiffs would have the Court believe.
" Plaintiffs also provided the testimony of witnesses who were, at best, peripheral players in the General Assembly's decision-making process. Three of those witnesses were not members of the General Assembly when the plan in question was adopted and indicated ng direct involvement with that process. Trial Transcript, at 89, lines 2-7 (R.O. Everette); at 104, 105, lines 1-18 (J.H. Froelich, Jr.); at 113, lines 12-19 (Neil Williams). Of the three witnesses who were members of the General Assembly during the relevant (ime period, none claimed to have had a significant involvement with or specific knowledge of the decision-making process. Nevertheless, each confidently expressed the opinion that racial motivations did predominate as
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opinion. Dr, Weber argued that the North Carolina legislature failed to include numerous
precincts in the Twelfth District which had high levels of Democratic support, but which were
not majority African-American. Consequently, he contended the Iogidlature must have been
more focused on race than op Creating a Democratic district. Dr. Weber also criticized Dr.
Peterson’s findings as “unreliable” and not relevant, Trial Transcript, at 232, lines 1-8.
However, it is the testimony of Dr, Weber, who admitted his belief that legislative bodies should
not be trusted to draw district lines, which the undersigned finds lacking in credibility. Id, at
281, lines 3-14; United States v, Turner, 198 F.3d 425, 429 n.2 (4* Cir. 1999) (citing Davis v,
Alaska, 415 U.S. 308, 316 (1974) (“The partiality of a witness is always relevant as
discrediting the witness and affecting the weight of this testimony," This stated bias is
evident throughout his testimony and undermines both his criticism of Dr, Peterson as well as his
assertion that politica] explanations fail to explain the composition of the Twelfth District. His
“hired gun” mentality and obvious prejudice against legislatures fulfilling “the most vital of
local functions,” attest to the unreliability of his conclusions. 2 Miller, 515 U.S. at 915.
Overlooking Dr. Weber’s lack of credibility, his arguments still do little to advance
Plainliffs’ position. First, there is no dispute that every one of the maj ority African-American
precincts included in the Twelfth District are among the highest, if not the highest, Democratic
performing districts in that geographic region. Thus, although Dr. Weber pointed to other
precincts which he suggests are highly Democratic in performance, this does not explain why
# As the majority notes, Dr. Weber has testified in over 30 racial gerrymandering cases. Exhibit 49. In the dissent in Johnson v. Mortham, 926 F. Supp 1460 (N.D. Fla. 1996), Circuit Judge Hatchett criticized Dr. Weber's testimony as lacking credibility because Weber had previously testified in support of the “Margolis plan” in 1992, but now purported to testify against the subscquent plan which he admitted was practically identical. Id, at 1505 n.11, 1513.
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any of the highest performing Democratic precincts should be excluded from the Twelfth
District, Furthermore, Dr, Weber's entire line of criticism ignored geographic realities and one-
. person, one-vote principles. Weber admitted that the precincts which he argued are strongly
Democratic were chosen without considering where they were located. ? Tria] Transcript, at
286-88. Further, under One-person, one-vote principles, Weber's precincts could not al} possibly
be included in the Twelfth District without removing a corresponding number of voters from
lioness in the district 2 1d. Finally, Weber's analysis is flawed due to the incorrect
assumptions under which he conducted his study. Weber admitted he considered no hypothesis
other than race as the legislature's predominant motive, and he specifically failed to inquire
about real world political or partisan factors which might have influenced the process. Id, at
258, lines 2-11. One reason for the focus on race was Dr. Weber's incorrect belief that the
person drawing North Carolina’s districts could only see racial data, when in fact North
Carolina’s computer screens displayed information on political breakdowns of both voter
registration and voter performance Id, at 261, lines 4-8. This error, his failure to account for
2 On Cross-examination, the Defendants presented maps which showed that few highly performing Democratic precincts actually abutted the Twelfth District. Exhibits 140-142; Trial Transcript, at 290-292; at 294, lines 20-25. Consequently, few of the strong Democratic precincts to which Dr, Weber referred could have easily been included in the Twelfth District,
* The undersigned notes here that Just because North Carolina was able to draw a more compact Twelfth District in 1998 which still performed for the Democrats does not mean that the 1997 Twelfth District was necessarily unconstitutional
2Q. Isn'tit true that you only coasidered race because you believed the North Carolina computer system only displayed racial breakdowns and did not display political breakdowns?
A. Atthat time I had not seen the screens for North Carolina. I had seen the screens in Louisiana. And in Louisiana, they did not prominently display political information on the screen,
Trial Transcript, at 253, lines 16-23,
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other potential factors, the flaws in fus arguments, and his ingrained personal bias combine to
undermine his subsequent conclusions and criticisms. In the end, the undersigned Sees no reason
to give any weight to the opinions of Dr. Ronald Weber and fails to understand the majority
reliance on such a thin reed.
Another significant shortcoming of the majority's analysis is the failure to adequately
credit the testimony of the two men who were the driving force behind the creation of the 1997
Redistricting Plan, Senator Roy Coopes III, served as the Democrat chair of the Senate
Redistricting Committee and Representative Edward McMahan acted as the Republican chair of
the House Redistricting Committee. They were responsible for developing a redistricting plan
that could pass both houses and for marshaling it through the legislative process. They indicated
that the 1997 plan and the formulation of its boundaries came primarily from their personal
negotiations with each other. 1d., at 463, lines 3-5. Both testified that correcting the
constitutional defects of the previous plan and passage of the bill by ensuring a 6-6 partisan split
were the two central goals in developing the 1997 plan. Trial Transcript, at 334; at 47 3, lines
13-25. Indeed, each testified under oath that politics, not race, was the predominant motivating
factor in the Plan’s development, with Senator Cooper going so far as to call partisan fairness an
“overriding factor.” Id., at 337, lines 7-10. This Court's finding that racial motives
predominated in the legislative process directly contradicts their express testimony.
In contrast to Plaintiffs, the Defendants adequately supported their position with
convincing evidence, even though they had no burden of proof in this trial. Senator Cooper and
Representative McMahan detailed the motivations behind their actions, at times expressing
regret for having to expose the naked political nature of their conduct. Id, at 423, lines 4-12. In
addition to incumbency protection, other Bitar considered by the Genera] Assembly included
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increasing geographic cass and reducing the number of split counties and precincts. L
at 349, lines 16-25; at 475, lines 13-25. The 1997 Twelkh District as adopted reflected the
legislators’ focus on these legitimate districting criteria. The 1997 Twelfth District is more
compact, splits fewer counties and precincts, and is much more pleasing to the eye than the
previous District. Id., at 334, lines 7-15. The General Assembly shortened the District from
191 to 102 miles, moved 60 percent of the geographic area and 30 percent of the population out
of the District," and eliminated the long narrow corridors and other objectionable characteristics
which had previously been criticized. Jd., at 349, lines 16-23. Most importantly, the Twelfth
District is not a minority-majority distri by any traditional measurement, numbering 46.67
percent African-American in total population and only 43.36 percent African-American in
voting age population. Final Pre-Trial Order, at { 26.
Furthermore, the General Assembly had before it abundant evidence of a clear
community of interest in the Twelfth District? The three urban areas located along the
Interstate-85 industrial corridor, known as the Piedmont Crescent, share common characteristics
and face similar problems. North Carolina’s Section 5 Submission, 1997 Congressional
Redistricting Plan, 97C-28F -3B, Tab 10. One statement submitted at a public hearing
described the Twelfth District as A urban in its dominant issues,” some of which were
described as affordable housing, alternative transportation, air and water quality, and various
* Final Pre-Trial Order, filed N ovember 29, 1999, at ’s 36-37. This included moving 4 out of 10 counties into other districts. Id, at q 30,
» Substantial evidence from both private citizens and politicians concerning the benefits of having a Piedmont Crescent district was submitted at the public hearings and therefore was before the legislature. North Carolina’s Section 5 Submission, 1997 Congressional Redistricting Plan, Volume IV. |
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other complex issues found in an increasingly populated and urban area. Id, at Tab 11, at 8-
9. As a consequence, the urban voters in the Twelfth District as prescatly configured have much
more in common with each other than with rural voters living on the distant outskirts of those
urban cities.” Id, Senator Cooper felt that maintaining this community of interest was one of
the legislatures motivating factors, and indeed, the 1997 Twelfth District as drawn reflected and
protected the clear community of interest in the Piedmont Crescent. Affidavit of Senator Roy
~ A. Cooper II, at 7 9.
The evidence presented by Defendants demonstrates that politics predominated in the
drawing of the Twelfth District in 1997. Plaintiffs evidence does nothing more than address the
admitted fact that legislative leaders Were aware of the race issue, or perhaps that the Twelfth
District could have possibly been drawn in a different way to accomplish the legislature's stated
political goals. Such evidence does not meet Plaintiffs’ heavy burden of showing by a
preponderance of the evidence that racial motives predominated in substantial disregard of
legitimate districting criteria.
In some circumstances, incumbency protection might explain as well as, or better than, race a State’s decision to depart from other traditional districting principles, such as compactness, in the drawing of bizarre district lines. And the fact that , “[a]s it happens, . . . many of the voters being fought over [by the neighboring Democratic incumbeats] were African-American,” would not, in and of itself, convert a political gerrymander into a racial gerrymander, no matter how conscious redistricters were of the correlation between race and party affiliation. See Shaw I, 509 U.S. at 646, 113 S.Ct, at 2826. If district lines merely correlate with race because they are drawn on the basis of political affiliation, which
* The majority observes that Charlotte, Winston-Salem, and Greensboro have never before been joined in a congressional district prior to 1992, However, it is irrelevant that the impetus for first grouping these metropolitan areas together was a plan since declared unconstitutional. See discussion, Supra p. 6-7. What currently is relevant is the clear community of interest in this Piedmont Crescent district which has been recognized by politicians and private citizens alike. :
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correlates with race, there is no racial Classification to justify, just as racial disproportions in the level of prosecutions for a particular crime may be unobjectionable if they merely reflect racial disproportions in the commission of that crime. :
Ifthe State's goal is otherwise constitutional political gerrymandering, it is free to use the kind of political data on which Justice Stevens focuses — precinct general election voting patterns, precinct primary voting patterns, and legislators’ experience — to achieve that goal regardless of its awareness of its racial implications and regardless of the fact that it does so in the context of a majority- minority district. To the extent that the District Court suggested to the contrary, it erred.
Bush, 517 U.S. at 967-68 (citations omitted). Only to the extent race is used as a proxy for
political characteristics will strict scrutiny be applied to otherwise permissible political
gerrymandering. Jd. Therefore, I conclude that strict scrutiny should not be applied to the
Twelfth District.
B. The First Congressional District
The First District in the 1997 Plan is 50.27 percent African-American in total population
and 46.54 percent African-American in voting age population. Final Pre-Trial Order, at 27,
Thus, the First District is the only majority-minerity district in North Carolina in terms of total
population, and no congressional district in this state is majority-minority in terms of voting age
population. However, this fact does not change the applicable legal standard. A State’s decision
to intentionally create a majority-minority district is not necessarily subject to strict scrutiny.
Bush, 517 U.S. at 958. Plaintiffs still have the burden of showing by a preponderance of the
evidence that race was the predominant factor motivating the legislature’s decision and that
legitimate districting criteria were subordinated to race, Miller, 515 U.S. at 916.
Senator Cooper and Representative McMahan testified that they were motivated to create
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a majority-minority district in the Northeastern area of the state to avoid concerns under the
Voting Rights Act. Trial Transeript, at 365, lines 10-25; at 464, lines 5-8. However, their
motivation was predicated on the knowledge that they could create a compact, coatiguous
district in Northeastern North Carolina which focused on an undeniable community of interests.
[Als we went through the process it became clear that we could draw a nice, compact district that made geographic sense, that put together communities of interest, that was a strongly leaning Democratic district, that was sli ghtly
majority-minority population. : - Ee
Id., at 359, lines 18-23,
District | is a largely acrarian rural district, It has a lot of medium sized towns. I tkink uniquely [in] Eastern North Caralina you have the 30 to 50,000 population towns with largely rural areas. A lot of these counties are largely poorer counties, °° they are very high up on our economic tiers of depressed counties. So I think that
there’s a great community of interest in Northeastern Nerth Carolina with those counties that are up there.
Id., at 368, lines 8-15.
Likewise, Senator Cooper and Representative McMahan were concerned with creating a
geographically compact district. McMahan in particular focused almost exclusively on
geographical considerations and “making the district look good.” Id., at 467, lines 22-25. And
indeed, the [997 redistricting process resulted in a fairly compact and normal locking
congressional district in Northeastern North Carolina. The perimeter and dispersion
compactness indicators of the First District are not much lower than the mean compactness
indicators for North Carolina’s twelve districts.” Neither number is low enough to raise a “red
# The First District has a dispersion compactness indicator of 0.317 and a perimeter compactness indicator of 0.107. Gerald R. Webster, “An Evaluation of N orth Carolina’s
1998 Congressional Districts,” Table 3; Defendants’ Exhibits 421-22. The mean numbers for North Carolina’s twelve congressional districts are’ .354 and .192 respectively. Id.
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flag” according to the criteria set out in the Pildes and Niemi study. Furthermore, as the
majority correctly observes, where the borders of the First District have significant irregularities,
those irregularities are attributable to political motivations, namely the dislre to protect
incumbents and avoid putting two congressional incumbents in a single district, Majority
Opinion, at 29, Therefore, although it was the intent of Senator Cooper and Representative
McMahan to create a minority-majority district in Northeastern North Carolina, this decision
was based on legitimate districting principles. Quite simply, once they knew they could create a
compact, contiguous district which addressed the community of interests in Northeastern North
Carolina, they felt they should do so. Trial Transcript, at 365, lines 17-24.
The majority reaches a different conclusion, however, and applies strict scrutiny to the
First District.” The majority characterizes the racial composition of the First District as “a
mandale, a necessity,” and therefore concludes that racial motives predominated. Majority
Opinion, at 26. In support of this conclusion, the majority cites the Cooper-Cohen e-mail which
refers to the desire to “boost the minority percentage in the first district” to create ag “improved”
district. Also, the majority ns to Senator Cooper’s acknowledgment at trial that he felt the
need to have over 50 percent minority representation in the First District. Based upon these
% That study suggested that a “red flag”should be raised when a perimeter conipactness indicator is below .05 and a dispersion compactness indicator is below .15. Webster, at 13 (citing Pieldes & Niemi, Expressive Harms, “Bizarre Districts,” and Voting Rights: Evaluating Election-District Appearances After Shaw v, Reno, 92 Mich.L.Rev. 433, 571- 573, Table 6 (1993)); Plaintiffs’ Exhibit 217.
# After applying a strict scrutiny standard, the majority concludes that the First District is not an unconstitutional racial gerrymander, finding a compelling state interest under § 2 of the Voting Rights Act and narrowly tailored means. Although I strongly feel that the evidence before the Court does not warrant the application of strict scrutiny, I agree with the majority’s analysis concerning the application of the Gingles factors to the First District,
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statements, the majority concludes that the General Assembly “continued to use race as the
predominant factor in creating the majority-minority First District, and thus strict scrutiny must
apply.™ d., at 27,
However, these statements merely highlight the admitted and permissible reality: the
North Carolina General Assembly intentionally created a majority-minority district (in terms of
population only) in Northeastern North Carolina. But despite the intent to Create a majority-
minority district, the evidence does not show that racial motives predominated in substantial
+ disregard of legitimate criteria like compactness, contiguity, and communities of interest. Trial
Transcript, at 365, lines 10-25. Op the contrary, the direct testimony shows that the legislature
addressed traditional, legitimate districting criteria and determined that a majority-minority
district in Northeastern North Careline was appropriate. Indeed, the criteria of communities of
interest and geographical compactness were uppermost in the legislators’ minds, Considering
the evidence before the Court in light of the deference due the state legislative decision, my
understanding of the applicable legal standard forces me to conclude that race did not
impermissibly predominate in the districting process and therefore strict scrutiny should not
apply to the First Congressional District.
The majority purports to find that “under the 1992 plan, the First District was not narrowly tailored and therefore that district was in violation of the Constitution.” Majority Opinion, at 26. However, this Court has no authority to find that the First District under the 1992 Plan was unconstitutional. Due to a standing issue, the Supreme Court in Shaw I7 did not make a ruling on that district. Shaw v. Hunt, 517 U.S, 899, 504 (1996). Neither this Court nor
6-7.
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V. REMEDY
1 also respectfully dissent from the decision to require the General Assembly once again
to redraw the Twelfth District.
The filing period for Congressional candidates began on January 3, 2000, and ended on
February 7, 2000. N.C. Gen. Stat. § 163-106(c). The General Assembly is not scheduled to
reconvene until May 2000, the same month that North Carolina will conduct its primary
elections. Forcing the General Assembly "2 call a special session to address this Court’s ruling
creates a plethora of problems. Ongoing election preparation will be interrupted as
congressional candidates will be forced to refile and redesign their election strategies. Citizen
confidence in the electoral process will be undermined by the repeated reconfiguration of |
election districts. While cost is not a Fins to be considered in tailoring a constitutional remedy,
it will be a concer to citizens hoping for closure in this long-running litigation. Also of no |
small concern is the time necessary for § S pre-clearance of changes from the ‘97 or ‘98 plans,
the probability of litigation under § 2 of the Voting Rights Act in the event of major changes in
district lines, and the virtual certainty of another challenge by Plaintiffs if the new lines do not
meet their satisfaction. To suggest that new districts, hastily drawn pursuant to this Court’s
Order, could have a salutary effect on the 2001 decennial redistricting is purely speculative in
view of the major change anticipated in the North Carolina population since 1990. In short,
requiring the North Carolina General Assembly % redraw congressional district lines for the year
2000 election, based as they must be on 1990 census figures, is unjustified, unnecessary and,
quite probably, an abuse of discretion.
There is Supreme Court precedent for this Court to consider “the proximity of a
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forthcoming election and the mechanics and complexities of state election laws” in fashioning
appropriate remedics for constitutional violations in redistricting cases. Reynolds, 377 U.S. at
585. There is also Supreme Court precedent for allowing an election to proceed under an
unconstitutional plan where an election is impending. Ely v. Klahr, 403 U.S. 108 (1971).
|Als we have often noted, districting and apportionment are legislative tasks in the first instance, and the court did not err in giving the legislature a reasonable time to act based on the 1970 census figures which the court thought would be available in the summer of 1971. . .. [T]he District Court should [then] make very sure that the 1972 elections are held under a constitutionally adequate [redistricting] plan. :
Id, at 114-15 (footnote omitted).
[O]nce a State’s legislative apportionment scheme has been found to be ‘unconstitutional, it would be the unusual case in which a court would be justified in not taking appropriate action to insure that no further elections are conducted under the invalid plan. However, under certain circumstances, such as where an impending election is imminent and a State's election machinery is already in progress, equitable considerations might justify a court in withholding the granting of immediately effective reliefig a legislative apportionment case, even though the existing apportionment scheme was found invalid. In awarding or withholding immediate relief, a court is entitled to and should consider the proximity of a forthcoming election and the mechanics and complexities of state election laws, and should act and rely upon general equitable principles. With respect to the timing of relief, a court can reasonably endeavor to avoid a disruption of the election process which might result from requiring precipitate changes that could make unreasonable or embarrassing demands on a State in adjusting to the requirements of the court’s decree.
Reynolds, supra; Order, supra, at 14-15 (Ervin, J. dissenting). Further, there is precedent in
North Carolina for conducting elections under an unconstitutional plan in order to avoid undue
disruption of the electoral process?! Permitting the legislature to expend its encrgy, best
In Shaw v. Hunt, 517 U.S. 899 (1996) (Shaw II), the Supreme Court found that the Twelfth District, as drawn under the 1992 redistricting plan, was unconstitutional. On remand, the three-judge pane! determined that the 1996 general elections would continue under the unconstitutional plan.
21
WIRY weiss lps ov sy rm
judgment, and resources on planning for and developing a constitutional plan for the Twelfth
District based g the Year 2000 population data would accord with Supreme Court precedent,
accommodate the “equitable considerations” recognized in Reynolds, and allow the filings,
campaigns and elections for 2000 to proceed on schedule. This Court should keep in mind that
whatever the decision is in this case, simple arithmetic and Constitutional mandate dictate the
redrawing of at least some new congressional district lines for the year 2002 elections based on
the year 2000 census figures.
VI. STANDING
Defendants contest Plaintiff Ronald Linville’s standing to participate in this case. As
Plaintiffs stipulate, Linville is not a current resident of the First or Twelfth Congressional
Districts, the two districts being challenged as racial gerrymanders.” Final Pre-Trial Order,
filed November 29 1999, at °s 20-23. Although he does not claim to be unhappy with his own
district, Linville gives numerous objections to the Twelfth District and concludes that it is drawn
[[In exercise of this Court's equitable power to withhold the grant of immediately effective relief for found constitutional violations in legislative districting plans in order {0 avoid undue disruption of ongoing state electoral processes, the 1996 primary elections already held for congressional offices are hereby validated and the 1996 general election for those offices may proceed as scheduled under state law (0 elect members of congress under the existing
districting plan.
Order, filed July 30, 1996 in Shaw v. Hunt, 92-202-CIV-5-BR at 2-3 (citing Reynolds, 377 U.S. at 585).
a Although Linville was a resident of the Twelfth District under the 1992 Plan, under the 1997 Plan he is a resident and registered voter of the adjoining Fifth District. His precinct is 95.94 percent white. Id. :
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along racial lines. Linville Draft Deposition, at 17, 20, 23, 25-26, 34, 56, 57, 65, 75-77.
Linville further complains about being separated from his father politically, being implicitly told
he was “too white to belong in the district right next to [him],” and being “deliberately
segregated immediately outside of a racially drawn district whose boundary was adjacent to his
own precinct.” Plaintiffs’ Response to Defendants’ Motion for Summary Judgment, at 22,
n.11. Plaintiffs graded no further evidence which suggests that Linville has been personally
injured by a racial classification, despite assurances at the beginning of the trial that they would
do so. Trial Transcript, at 5, lines 10-12.
Federal courts have an independent obligation to examine their own jurisdiction; standing
“is perhaps the most important of [the Jurisdictional] doctrines.” United States v. Hays, 515 U.S.
737, 742 (1995) (quoting FW/PBS, Inc. v. Dallas, 493 U.S. 215, 230-31 (1990)). The party
who seeks the exercise of Jurisdiction has the burden of clearly alleging facts which demonstrate
that he or she is a proper party to invoke judicial resolution of the dispute. Hays, 515 U.S. at
743. Even where a case has proceeded to final judgment after a trial, “those facts (if
controverted) must be ‘supported adequately by the evidence adduced at trial’ to avoid dismissal
on standing grounds.” Id. (citations omitted).
In the context of redistricting cases, a citizen has standing to challenge a racial
classification in federal court if that citizen is “able to demonstrate that he or she, personally, has
been injured by that kind of racial classification.” 7d, at 744. Because of the difficulty in
demonstrating this individualized harm, the Supreme Court created a presumption in favor of
standing for residents of a challenged district. Hays, 515 U.S. at 744-45; accord Miller v.
Johnson, 515 U.S. 900, 910-11 (1995). However, where a plaintiff is not a resident of the
challenged district, the plaintiff is not afforded the benefit of this presumption.
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[Where a plaintiff does not live in such a district, he or she does not suffer those
special harms, and any inference that the plaintiff has personally been subjected
to a racial classification would not be justified absent specific evidence tending to
support that inference. Unless such evidence is present, that plaintiff would be
asserting only a generalized grievance against governmental conduct of which he
or she does not approve.
Hays, 515 U.S. at 745 (emphasis added). The Supreme Court repeatedly has refused to
recognize a ‘‘generalized grievance against allegedly illegal governmental conduct as sufficient
for standing to invoke the federal judicial power.” Id, at 743 (citations omitted).
Consequently, plaintiffs who are not residents of a challenged district may sue only if they are
able to make a specific evidentiary showing that they have been “personally classified by race.”
Id., at 745; Shaw II, 517 U.S. at 904; Bush, S517 U.S. at 357-38.
By seeking to include Linville as a participant in this lawsuit, Plaintiffs ask this Court to
grant standing to a class of plaintiffs which the Supreme Court has explicitly refused to
recognize. Only where a non-resident plaintiff is able to make a specilic evidentiary showing of
personal injury will that plaintiff have standing to sue in federal court. Linville’s litany of
generalized grievances will not suffice to create standing. Because Linville is not a resident of
the First or Twelfth Districts, and no specific evidence that he has personally been subjected to a
racial classification is before this Court, I would dismiss Linville as a plaintiff for lack of
standing.
VII. CONCLUSION
Lost amidst the smoking gun e-mails, the “uncontroverted” statistical information, and
the indignant examinations of irregular district lines is Plaintiffs’ burden of proof in this case.
The Plaintiffs must demonstrate by a preponderance of the evidence that a racial motivation
24
predominated in the legislature’s decision-making and that legitimate districting principles wo
subordinated to those racial motivations. The Supreme Court’s remand in this case affords no
relief from the responsibility of cating this burden. Merely showing that race was an issue,
that 1t was always considered, or that it had an influence on the ultimate oittcome is not
sufficient.
The two men most knowledgeable about the 1997 Congressional rofivetoting plan
testified before this Court that political, not racial, motivations were the predominant factor in
the Guera! Assembly’s decision-making process. Thelr direct estimeny, even when confronted
with the evidence relied on by the majority, proves that racial motivations did not predominate.
Therefore, strict scrutiny should not be applied to the General Assembly’s 1997 decision.
F nally, I am compelled to note that this decision forces the North Carolina General
Assembly to create a redistricting plan based on population figures from the 1990 census,
numbers which everyone admits are outdated. This atu plan will last only one year and will |
then be replaced by a plan based on the 2000 census figures. When previously fed by this
Court to redraw the Twelfth District in 1998, the General Assembly created a plan which
garnered the approval of this Court and was pre-cleared by the Justice Department. Indeed,
North Carolina's current Congressional delegation was elected under that plan in the 1998
general elections. Were the General Assembly to simply wwrdiogt the 1998 plan, the stil |
expenditure of legislative time, effort, and resources might be minimized. Otherwise, for the
fifth time in 10 years, North Carolina's legislature must undergo the arduous task of reaching a
consensus on the divisive and inherently political issue of congressional redistricting.