Fax to Chachkin From Cox RE: Draft of the Defendant-Intervenors’ Memorandum in Opposition to Plaintiffs’ Motion for Summary Judgment

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MAR-02-98 14:05 yd +7043345654 1-280 7.02 F-665 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF NORTH CAROLINA 

RALEIGH DIVISION 
CIVIL ACTION NO. 4:96-CV-104 

  

MARTIN CROMARTIE, ez al, ) 

) 
Plainuffs, ) 

) 
v ) DEFENDANT-INTERVENOR’S 

) MEMORANDUM IN OPPOSITION TO 

JAMES B HUNT, IR, er al., ) PLAINTIFFS’ MOTION FOR 

) SUMMARY JUDGMENT 

Defendants ) 

) 
and ) 

) 
ALFRED SMALLWOOD, eral. ) 

) 
Applicants to Intervene as) 
Defendants ) 

) 

STATEMENT OF CASE 

Three residents of Tarboro, North Carolina originally filed the complaint in this action on July 

3, 1996 challenging District 1 in North Carolina’s 1992 Congressional Redistricting Plan on the 

ground that it violated their equal protection nghts because race predominated in the drawing of the 

district. Five voters in the First Congressional District filed a motion to intervene as defendants. That 

motion was never ruled on. Following a hearing on an Order to Show Cause, the action was stayed 

pending resolution of remand proceedings in Shaw v. Hunt, S17 US. __, 116 S Ct 1894, 135 

L.Ed 2d 207 (1996) On July 9, 1996 the same three Tarboro residents joined the previous plamnfis 

in Shaw in filing an Amended Complaint in that case, similarly challenging the First Congressional 

District 

By Order dated September 12, 1997, the three-judge panel in Shaw approved a congressional 

 



    

  

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redistricting plan enacted on March 31, 1997 by the General Assembly as a remedy for the 

constitutional violation found in Shaw to exist in District 12, and disnussed plaintiffs’ claim that 

District 1 in the 1992 plan was unconstitutional as moot, without prejudice 

On October 16. 1997, two of the original three plaintiffs, along with four residents of District 

12. filed an amended complaint in this action challenging the 1997 remedial congressional redistricting 

plan, as wel as seeking a declaration that District 1 in the 1992 plan is unconstitutional. Within the 

time allowed for answering the amended complaint (the defendants having obtained an enlargement 

of time), three voters from the First District and six voters from the Twelfth District filed a renewed 

motion to intervene as defendants To date, there has been no ruling on this motion 

The plaintiffs have filed a motion for summary judgment and a motion for a preliminary 

imunction. The defendants have indicated their intention 10 file a cross-monon for summary 

judgment. A hearing in this matter is set for March 16, 1998. 

STATEMENT OF FACTS 

For nine decades, from 1901 unril 1992, African-American voters in North Carolina were 

unable to elect a candidate of their choice to Congress Their disenfranchisement was the result of 

conscious, deliberate and calculated state laws that both denied black voters access to the ballot box 

and effectively diluted their votes See Gingles v. Edmisten, 590 F. Supp 345, 359 (1984). Poll 

taxes, literacy tests, anti-single shot voting laws, at-large and multi-member election districts were 

all measures employed, particularly m the eastern part of the state, Id., See also, Kousser report, X 

Goldfield Report, Specifically with regard to congressional districts, in the 1970 and 1980 X 

redistricting plans, the General Assembly state intentionally fragmented the black votre in the 

northeastern portion of the state to make sure black voters could not gamer enough support to elect 

 



    

  

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- 

their candidate to Congress. Kousser Reporte Racial appeals in campaigns were used by white 'e 

candidates to dissuade white voters from supporting black candidates. Watson Report. 

The ability of black voters to participate in congressional elections has conunued, to this day, 

1a be hindered by the continuing effects of past official discrimination. For example, the legacy of 

literacy tests, in use until the mid-1970's, and poll taxes continues {0 be reflected in the fact that black 

voters are registered to vote in lower percentages than white voters. In 1960, statewide only 39 1% 

of the black voting age population was registered to vote, compared 10 92 1% of the white voting 

age population. Gingles, S90 F. Supp. at 360 Inthe majority-black counties, all located in eastern 

North Carolina, fewer than 20 percem of the black population was registered to vote in 1960 

Goldfield at 5 By 1980, statewide 51 3% of age-qualified blacks and 70 1% of whites were 

registered Gingles, 590 F Supp. at 360 In 1993, 61 3% of blacks and 72 5% of whites who were 

eligible to vote were registered D-I Stip. No. 63 

Elections in North Carolina in the 1990's unfortunately continue to be marred by direct 

appeals to race designed to discourage white voters from voting for black candidates Willingham 

report. In addinon, in 1990, large numbers of qualified black voters were anonymously sent post 

cards which misrepresented state law and threatened them wirh criminal prosecution if they tned to 

vote after having recently moved [Shaw rrial exhibits 525-531] Black voters as a whole are less 

well-educated, lower-paid, more likely to be in poverty, and have less access 10 basic instruments of 

political participation such as telephones and cars, than do their white counterparts, adversely 

affecting their ability to elect candidates of their choice. [D-I stipulations on SOCI0-economic status) 

It remains true that, 1 this century, no black candidate other than Ralph Campbell, State 

Auditor, has ever won a statewide election contest for a non-judicial office. No black candidate has 

 



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won election in a majority-white congressional district, even though strong candidates repeatedly 

sought election in the 1980's in the Second Congressional District which was over 40% black 

Michaux statement Majority-minority election districts for the state legislature have proven to be 

opportunity districts for white candidates as well White candidates have repeatedly been elected in 

state house and senate districts thar are majority-black Stipulation Exhibit 34 at 25. No single- 

member majority-white state legislative district has elected a black candidate to the stare legislature 

Stipulations 13, 18. 

ln North Carolina elections, white voters decline to vote for black candidates in numbers 

sufficient to keep the black candidate from winning. A study of 50 recent elections in which voters 

have been presented with a choice between African-American and white candidates. including 

congressional elections, statewide elections and state legislative elections, found that 49 of the 50 

were characterized by racially polarized voting. Engstrom Report. In every statewide election since 

1988 where voters were presented with a biracial field of candidates, the voting parterns indicated 

significant racially polarized voting /d. In all except two low-profile contests, racially polarized 

voung was sufficient to defeat the candidate chosen by black voters 

Patterns of racially polarized voting continued in the 1996 senate campaign between Harvey 

Gantt and Jesse Helms The regression and homogeneous precinct analyses show that statewide, 

Gant received between 97 9 and 100% of the African-American vote, and between 35 7 to 38 1% 

of the non-African-American vote Engstrom Lerter dated Feb 7, 1997. The same election shows 

that white bloc voting was greater in the northeast region of the state. Looking at the counties which 

were included in District 1 of the 1997 remedy plan, it appears that the vore in this area is more 

racially divided than the in state as a whole. Mr Ganut received from 96 6% to 100% of the black