Shaw v Barr State Appellees Brief

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Brief Collection, LDF Court Filings. Shaw v Barr State Appellees Brief, 1993. cf60ede6-c39a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/733d921e-2981-40a9-9685-0ff1663678a9/shaw-v-barr-state-appellees-brief. Accessed December 04, 2025.

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In the
Supreme Court of the United States

October Term, 1992

Ruth O. Shaw, et a t ,
Appellants,

W illiam Barr, et al.,
Appellees.

Appeal from the United States District Court
for the Eastern District o f North Carolina

Raleigh Division

STATE APPELLEES’ BRIEF

MICHAEL F. EASLEY
North Carolina Attorney General

Edwin M. Speas, Jr., Senior Deputy Attorney General
H. Jefferson Powell*, Special Counsel to Attorney General

Norma S. Harrell, Special Deputy Attorney General
Tiare B. Smiley, Special Deputy Attorney General

North Carolina Department of Justice
Post Office Box 629

Raleigh, North Carolina 27602-0629
(919)733-3786

*Counsel o f Record

QUESTION PRESENTED

Whether a state legislature’s intent to comply with the Voting
Rights Act and the Attorney General’s interpretation thereof
precludes a finding that the legislature’s congressional redistricting
plan was adopted with invidious discriminatory intent where the
legislature did not accede to the plan suggested by the Attorney
General but instead developed its own.

This page intentionally left blank.

Ill

PARTIES

Plaintiffs/appellants are Ruth O. Shaw, Melvin G. Shimm,
Robinson O. Everett, James M. Everett and Dorothy G. Bullock.

Defendants/appellees are Stuart M. Gerson", Acting
Attorney General; John Dunne, Assistant Attorney General of the
United States, in charge of the Civil Rights Division; James B.
Hunt, Jr.*, Governor of the State of North Carolina; Dennis A.
Wicker*, Lieutenant Governor of the State of North Carolina;
Daniel T. Blue, Jr., Speaker of the North Carolina House of
Representatives; Rufus L. Edmisten, Secretary of State of the State
of North Carolina; The North Carolina State Board of Elections;
William Marsh, Jr.*, Chairman of the North Carolina State Board
of Elections; M.H. Hood Ellis, Gregg O. Allen, Ruth Turner
O’Bryan, and June K. Youngblood, in their official capacities as
members of the North Carolina Board of Elections.

By operation of law these officials have been automatically substituted as
parties upon assuming office.

This page intentionally left blank.

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................... ix

CONSTITUTIONAL PROVISIONS,
STATUTES AND REGULATIONS ...................................... 1

STATEMENT OF THE CASE ........................................... 2

SUMMARY OF ARGUMENT .............................................. 7

ARGUMENT ............................................................................ 9

Introduction.................................................................... 9

I. THE NORTH CAROLINA LEGISLATURE’S
INTENT TO COMPLY WITH THE VOTING
RIGHTS ACT AND THE ATTORNEY
GENERAL’S INTERPRETATION THEREOF
PRECLUDES A FINDING THAT THE
LEGISLATURE’S CONGRESSIONAL REDIS
TRICTING PLAN WAS ADOPTED WITH
INVIDIOUS DISCRIMINATORY INTENT. . 13

A. Plaintiffs Make No Allegation that

the Legislature Acted with Invidious
Intent as This Court Employs That
Term............................................................. 13

B. The Plaintiffs’ Arguments in Support

of Their Proposed Revision of Equal
Protection Doctrine Are Unconvinc
ing................................................................. 19

1. Plaintiffs’ Revisionist Interpretation of
Invidious Intent is Contrary to The
History and Purpose of the Equal Pro
tection Principle............................. 19

2. This Court’s Decisions Do Not Compel
or Even Support the Plaintiffs’ Reinter
pretation of the Invidious Intent Re
quirement........................................ 23

C. The Plaintiffs’ Proposed Reinterpreta
tion of Invidious Intent Would Require
This Court to Invalidate Key Provi
sions of the Voting Rights Act And To
Repudiate Its Decisions Interpreting
the Act................................................... 27

1. States Covered By the Preclearance Re
quirements of the Voting Rights Act
Have the Constitutional Authority to
Create Majority-Minority Districts in
Order to Fulfill Their Section Five
Obligations........................................... 27

2. The Results Test of Section Two Re
quires States to Take Race Into Account
in Redistricting in Order to Comply
With the Section.................................. 32

3. Sections Two and Five of the Voting
Rights Act Are Constitutional, and the
Plaintiffs’ Challenge to Their Validity
Should Be Rejected............................. 34

II. THE STATE’S CONGRESSIONAL REDIS
TRICTING PLAN IS CONSTITUTIONAL EVEN
ON THE ASSUMPTION THAT THE PLAIN
TIFFS ADEQUATELY HAVE ALLEGED DIS
CRIMINATORY INTENT BECAUSE THEY
CANNOT ALLEGE DISCRIMINATORY EF
FECT...................................................................... 36

III. THE STATE’S CONGRESSIONAL REDIS
TRICTING PLAN IS CONSTITUTIONAL UN
DER THIS COURT’S CROSON AND METRO
BROADCASTING DECISIONS........................... 39

A. The Cr o so n Test Does Not Apply to
Race-Conscious Redistricting Pursuant
to the Voting Rights Act...................... 39

B. The State Redistricting Plan Is Justi
fied By the Compelling Governmental
Interest in Complying With the Voting
Rights Act and Remedying the Effects

of Racial Discrimination....................... 42

C. The State’s Redistricting Plan Is Nar
rowly Tailored to the State’s Goal of
Complying with the Voting Rights Act
and Remedying the Effects of Racial

Discrimination........................................... 47

CONCLUSION ...................................................................... 50

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TABLE OF AUTHORITIES

CASES: Page

Arlington Heights v. Metro. Housing Dev.
Corp., 429 U.S. 252 (1977) ................................................. 21

Baird v. Consolidated City o f
Indianapolis, 976 F.2d 357
(7th Cir. 1992)................................................................. 32, 33

Beer v. United States, 425 U.S. 130 (1976 ).............. 23, 28-30

Beer v. United States, O.T. 1975,
No. 73-1869 ............................................................................ 30

Bray v. Alexandria Women’s Health Clinic,
___U .S .___ , 113 S. Ct. 753 (1993)............................ 17,18

Briscoe v. Bell, 432 U.S. 404 (1977)...................................... 35

Carrington v. Rush, 380 U.S. 89 (1965)................................ 28

Chapman v. Meier, 420 U.S. 1 (1 9 7 5 )........................... 28, 37

City o f Cleburne v. Cleburne Living
Center, 473 U.S. 432 (1 9 8 5 )................................................. 16

City o f Memphis v. Greene, 451 U.S. 100
(1 9 8 1 ) ....................................................................................... 21

City o f Mobile v. Bolden, 446 U.S. 55
(1 9 8 0 ) ............................................................ 13, 17, 22, 32, 38

City o f Petersburg v. United States,
354 F. Supp. 1021 (D.D.C. 1972),
aff’d mem., 410 U.S. 962 (1973) ......................................... 30

City o f Port Arthur v. United States,
459 U.S. 159 (1 9 8 2 ) ............................................................... 30

City o f Richmond v. J.A. Croson Co., 488 U.S. 469
(1 9 8 9 ) .............................. 8, 22, 24, 35, 39, 40, 43, 44, 46-48

City o f Richmond v. United States,
422 U.S. 358 (1 9 7 5 ) ................................................. 17, 22, 30

City o f Rome v. United States,
446 U.S. 156 (1 9 8 0 ) ......................................... 28, 34, 35, 42

Connor v. Finch, 431 U.S. 407 (1977)........................... 26, 37

Davis v. Bandemer, 478 U.S. 109 (1986) . . 14, 23, 28, 37-39

DeGrandy v. Wetherell, 794 F. Supp. 1076
(W.D. Fla. 1992), appeal pending as
Wetherell v. DeGrandy, No. 92-519 ........................... 32, 33

Freeman v. Pitts, _ _ U .S .___,
112 S. Ct. 1430 (1992) ......................................................... 29

Fullilove v. Klutznick, 448 U.S. 448
(1 9 8 0 ) ......................................................................... 25, 26, 41

Gaffney v Cummings, 412 U.S. 735 (1 9 7 3 ) ................... 23,28

Garza v. County o f Los Angeles,
918 F.2d 763 (9th Cir. 1990)................................................. 33

Gingles v. Edmisten, 590 F. Supp. 345
(E.D.N.C. 1984), rev’d in part on other
grounds sub nom. Thornburg v. Gingles,
478 U.S. 30 (1986)........................................... 26, 37, 45, 46

Gomillion v. Lightfoot, 364 U.S. 339
(1 9 6 0 ) .............................................................................. 21, 22

Hernandez v. New York, 500 U .S .___,
111S. Ct. 1859 (1991) ......................................................... 24

Jeffers v. Clinton, 730 F. Supp. 196
(E.D. Ark. 1989), aff’dmem .,
111S. Ct. 662 (1991) .............................................. 32, 33, 45

Katzenbach v. Morgan, 384 U.S. 641 (1966 )............................ 35

Lamprecht v. FCC, 958 F.2d 382
(D.C. Cir. 1992) .................................................................... 24

Local 28, Sheet Metal Workers v. EEOC,
478 U.S. 421 (1 9 8 6 ) .............................................................. 48

Lockhart v. United States, 460 U.S. 125
(1 9 8 3 ) ....................................................................................... 37

McCain v. Lybrand, 465 U.S. 236 (1 9 8 4 )................ 28, 29, 45

McCleskey v. Kemp, 481 U.S. 279 (1987)................... 7, 16, 23

McCulloch v. Maryland, 17 U.S. (4 Wheat.)
(1 8 1 9 ) ....................................................................................... 34

McGhee v. Granville Co., 860 F.2d 110
(4th Cir. 1988)......................................................................... 38

Metro Broadcasting v. FCC, 497 U.S. 547,
110 S. Ct. 2997 (1990) ........................ 20, 26, 35, 41-43, 49

Morris v. Gressette, 432 U.S. 491 (1 9 7 7 )................................ 31

Personnel Administrator v. Feeney,
442 U.S. 256 (1 9 7 9 ) ................................................. 16, 17, 19

Plessy v. Ferguson, 163 U.S. 537 (1896) ...................... 19, 20

Pope v. Blue, No. 3:92CV71-P (W.D.N.C.
April 16, 1992), aff’dmem.,
113 S. Ct. 30 (1 9 9 2 )................................................................. 5

Pope v. Blue, No. 91-2038 ................................................. 4, 11

Pullman-Standard v. Swint, 456 U.S. 273
(1 9 8 2 ) ....................................................................................... 17

Quilter v. Voinovich, 794 F. Supp. 695
(N.D. Ohio 1992), prob. jur. noted,
112 S. Ct. 2299 (1992) ................................................. 14,32

Regents o f Univ. o f California v. Bakke,
438 U.S. 265 (1 9 7 8 ) ................................... 26, 41, 42, 45, 49

Reynolds v. Sims, 377 U.S. 533 (1964) ........................... 2, 23

Rogers v. Lodge, 458 U.S. 613 (1982)........... 7, 8, 14, 17, 39

Schlesinger v. Reservists Committee,
418 U.S. 208 (1 9 7 4 ) .............................................................. 11

South Carolina v. Katzenbach, 383 U.S. 301
(1 9 6 6 ) ....................................................................................... 34

Strauder v. West Virginia, 100 U.S. 303
(1 8 7 9 ) ....................................................................................... 21

Texas v. United States, 802 F. Supp. 481
(D.D.C. 1992)............................................................................... 31

Thornburg v. Gingles, 478 U.S. 30
(1 9 8 6 ) ......................................................... 5 ,6 ,3 2 -3 4 ,4 1 ,4 5

Turner v. Arkansas, 784 F. Supp. 553
(E.D. Ark. 1991), a ff’dmem.,
112 S. Ct. 2296 (1992) ........................................................... 32

xii

X l l l

United Jewish Organizations, Inc. v.
Carey, 430 U.S. 144 (1977) ................ 7, 24, 25, 28, 30, 38

Upham v. Seamon, 456 U.S. 37 (1982) ................................. 30

Washington v. Davis, 426 U.S. 229
(1 9 7 6 ) ............................................................ 13, 14, 21, 22, 24

Washington v. Seattle School District
No. 1, 458 U.S. 457 (1982)........................................... 35, 40

Weinberger v. Wiesenfeld, 420 U.S. 636
(1 9 7 5 ) ....................................................................................... 13

Wesch v. Hunt, 785 F. Supp. 1491
(S.D. Ala. 1992), aff’d mem. sub nom.
Camp v. Wesch, 112 S. Ct. 1926 (1992).............................. 33

Whitcomb v. Chavis, 403 U.S. 124 (1971)................ 17, 36, 38

White v. Regester, 412 U.S. 755 (1 9 7 3 ) .............. 8, 36, 38, 39

White v. Weiser, 412 U.S. 783 (1 9 7 3 ) ................................... 28

Wilson v. Eu, 823 P.2d 545 (Cal. 1 9 9 2 )........................ 31, 33

Wygant v. Jackson Bd. o f Education,
476 U.S. 267 (1 9 8 6 ) ...................... 26, 29, 40-44, 46, 47, 49

CONSTITUTIONAL PROVISIONS:

U.S. CONST, amend. XIV, § 1 .................................................1

U.S. CONST, amend. XIV, § 5 .................................................1

U.S. CONST, amend. XV, § 1 1

XIV

U.S. CONST, amend. XV, § 2 .................................................1

U.S. CONST, art. I, § 2 ......................................................... 23

STATUTES AND FEDERAL REGULATIONS:

28 C.F.R. Part 5 1 .................................................................... 2, 3

28 C.F.R. § 51.55(b)(2) (1992) ............................................ 33

42 U.S.C. § 1973 etseq ......................................................... 1 ,2

42 U.S.C. § 1973(a) ...................................................................32

42 U.S.C. § 1973(b)...................................................................33

42 U.S.C. § 1 9 7 3 b ......................................................................28

42 U.S.C. § 1 9 7 3 c ........................................................................2

Section 2 of the Voting Rights Act ............................... passim

Section 4 of the Voting Rights Act ...........................................28

Section 5 of the Voting Rights Act ............................... passim

42 U.S.C. § 1985(3 )................................................................. 18

Fed. R. Civ. P. 12(b)(1).................................................................7

Fed. R. Civ. P. 12(b)(6)...................................................... 7, 13

OTHER AUTHORITIES:

1990 Census of Population and Housing,
P.L. 94-171 ...............................................................................5

Senate Report No. 97-417,
reprinted in 1982 U.S. Code
Cong. & Admin. News 235 ........... 27, 29, 31-33, 35, 44, 45

Brest, In Defense o f the
Antidiscrimination Principle,
90 Harv. L. Rev. 1 (1976) ................................................... 17

D. Currie, The Constitution in the Supreme
Court: The Second Century 485 (1990) .............................. 42

Ely, The Constitutionality o f Reverse Race
Discrimination, 41 U. Chi. L. Rev. 723
(1 9 7 4 ) ....................................................................................... 20

O. Gade & H. Stillwell, North Carolina:
People and Environment (1986) ......................................... 2, 3

B. Grofman & C. Davidson, Controversies in
Minority Voting 107-08 (1 9 9 2 )...................................... 42, 48

B. Grofman, L. Handley & R. Niemi,
Minority Representation and the Quest
for Voting Equality 132 (1992 ).............................................. 26

Issacharoff, Polarized Voting and the
Political Process: The Transformation
o f Voting Rights Jurisprudence,
90 Mich. L. Rev. 1833 (1 9 9 2 ).............................................. 42

XVI

Klarman, An Interpretive History o f Modern
Equal Protection, 90 Mich. L. Rev. 213
(1 9 9 1 ) .............................................................................. 20, 21

A. Kull, The Color-Blind Constitution vii
(1 9 9 2 ) ...................................................................................... 21

H. Lefler & A. Newsom, North Carolina: The
History o f a Southern State 18 (3rd ed.
1973) .............................................................................................2

O’Rourke, The 1982 Amendments and the
Voting Rights P aradox ............................................................... 42

Posner, The Bakke Case and the Future o f
"Affirmative Action,"
67 Calif. L. Rev. 171 (1979 )................................................. 42

Posner, The DeFunis Case and the
Constitutionality o f Preferential
Treatment o f Racial Minorities,
1974 Sup. Ct. Rev. 1 ..................................................................20

W. Powell, North Carolina Through Four
Centuries (1989).................................................................... 2, 3

Schnapper, Affirmative Action and the
Legislative History o f the Fourteenth
Amendment, 71 Va. L. Rev. 753 (1 9 8 5 ).............................. 20

Strauss, Discriminatory Intent and the
Taming o f Brown, 56 U. Chi. L. Rev. 935
(1 9 8 9 ) ....................................................................................... 22

A. Thernstrom, Whose Votes Count? (1987) ................ 48, 49

No. 92-357

In the
Supreme Court of the United States

October Term, 1992

Ruth O. Shaw, et al.,
Appellants,

William Barr, et al.,
Appellees.

Appeal from the United States District Court
for the Eastern District of North Carolina

Raleigh Division

STATE APPELLEES’ BRIEF

CONSTITUTIONAL PROVISIONS,
STATUTES AND REGULATIONS

This case involves the following constitutional provisions,
statutes and regulations:

Sections 1 and 5 of the Fourteenth Amendment to the
Constitution of the United States. See Appendix at la.

Sections 1 and 2 of the Fifteenth Amendment to the
Constitution of the United States. See Appendix at la.

Title 42, Section 1973 of the United States Code. See
Appendix at 3a.

Title 42, Section 1973c of the United States Code. See
Appendix at 5a.

Title 28, Part 51 of the Code of Federal Regulations
(pertinent sections). See Appendix at 7a-8a.

STATEMENT OF THE CASE

This case presents a constitutional challenge to the
congressional redistricting plan ("the Plan") enacted by the North
Carolina General Assembly for elections beginning in 1992. As
a result of population changes reflected in the 1990 census, the
General Assembly faced the task of drawing a new plan with an
additional, twelfth congressional seat. Two legal imperatives
guided the legislature in performing this task: (1) compliance with
the mathematically precise one-person, one-vote principles
established by the court in Reynolds v. Sims, 377 U.S. 533 (1964),
and (2) compliance with §§ 2 and 5 of the Voting Rights Act. 42
U.S.C. § 1973 et seq. Also to be accounted for were communities
of interest created by the sometimes unique effects of North
Carolina’s geography,1 economy,2 and demography.3

1 Geographically, "North Carolina is divided into 3 rather clearly defined
geographic areas: the Coastal Plain, the Piedmont Plateau and the Mountains."
H. Lefler & A. Newsom, North Carolina: The History o f a Southern State 18
(3rd ed. 1973). Each of these areas "has a distinct history and only in recent
years have social and economic factors created a unifying force sufficient to
overcome the differences and divisions long attributed to geographic influences."
W. Powell, North Carolina Through Four Centuries 1 (1989).

2 The economy of the Coastal Plain is predominantly based on agriculture
while the economy of the Piedmont is predominantly based on manufacturing.
O. Gade & H. Stillwell, North Carolina: People and Environment at 244, 250
(1986).

3 Forty-eight percent of North Carolina’s population lives in urban areas and
fifty-two percent in rural areas. Of the State’s urban residents only 14.5 percent
live in cities with populations of more than 100,000. A larger percentage, 18.5

(continued...)

According to the 1990 census data, 21.97 percent of North
Carolina’s citizens are African-American, and 75.56 percent are
white. The largest concentrations of African-American citizens
live in the Coastal Plain, especially the northern part, and in the
Piedmont. Within the Piedmont, the largest concentration of
African-American citizens lives in the historically recognized
Piedmont Crescent. O. Gade & H. Stillwell, North Carolina:
People and Environments 65-66 (1986). "This almost continuous
strip of industrial activity" is an arc encompassing North
Carolina’s largest cities, extending from Raleigh in the east
through Durham, Greensboro, High Point and Winston-Salem to
Charlotte in the west. W. Powell, North Carolina Through Four
Centuries 5 (1989). For much of its length, the Piedmont Crescent
is traversed by Interstate 85.

On July 9, 1991, the North Carolina General Assembly
ratified a congressional redistricting plan which complied with one-
person, one-vote requirements and included a district in the Coastal
Plain with an African-American majority. Complaint (hereafter
"Comp."), 13, 16, Jurisdictional Statement Appendix (hereafter
"J.S. App.") at 78a, 79a. Because forty of North Carolina’s one
hundred counties are subject to the preclearance requirements of
the Voting Rights Act, see 28 C.F.R. Part 51 Appendix, the Plan
was submitted to the Attorney General of the United States
(hereafter the "Attorney General") for preclearance. Comp. I f 14-
15, J.S. App. at 78a-79a. 3

3(...continued)
percent, live in small towns with populations between 2,500 and 25,000. Some
observers have stated that it is "extraordinary that the nation’s tenth most
populous state is still more rural than urban, particularly when the country as a
whole is about 70 percent urban." O. Gade & H. Stillwell, North Carolina at 54.

By letter dated December 18, 1991, the Attorney General
objected to the Plan. Comp. 1 16, J.S. App. at 79a.4 The basis
of the objection was the Attorney General’s conclusion that the
State had not carried its burden of showing a lack of discrimi
natory intent. This conclusion was based in part on the Attorney
General’s view that there was significant interest among minority
citizens in having a second majority-minority district and that
alternative plans with two majority-minority districts, "including
at least one alternative presented to the legislature," did exist, but
that these alternatives were "dismissed [by the North Carolina
General Assembly] for what appears to be pretextual reasons."
J.S. App. at 4a.5

The "alternative presented to the legislature" with two
majority-minority districts contained one such district in eastern
and northeastern North Carolina and another majority-minority
district in what the Attorney General described as the "south-
central to southeast area." The district in the "south-central to
southeast area" stretched from the most urban area of North
Carolina, the city of Charlotte in Mecklenburg County in the far
western portion of the Piedmont, through extremely rural areas, to
the coastal town of Wilmington in New Hanover County. What
the Attorney General described as "pretextual reasons" included

4 The letter was not attached to Appellants’ (hereafter "Plaintiffs") complaint
or otherwise part of the record of the case, but it was quoted extensively by the
District Court. See J.S. App. at 3a-4a, 43a, 48a. Copies can be found in the
Appendix to this Brief at pages lla-18a (hereafter "App. pp. ___") and in the
Jurisdictional Statement to Pope v. Blue, No. 91-2038, which was filed with the
Court by Plaintiffs.

5 Another alternative plan before the Attorney General included one
majority-minority district in the Coastal Plain and another generally following
Interstate 85 through the industrialized Piedmont Crescent. This district closely
resembles the Twelfth District ultimately created by the General Assembly and
approved by the Attorney General.

the State’s objection to the fact that the district was described as
191 miles long, mixed urban with rural areas, combined portions
of the Piedmont with coastal areas, and combined African-
American with Native American populations to achieve a majority-
minority district even though there was substantial evidence that
African-American and Native American voters did not vote
cohesively.

On January 24, 1992, the General Assembly adopted the
Plan challenged by Plaintiffs. The Plan satisfies one-person, one-
vote requirements by dividing North Carolina’s population as
evenly as mathematically possible. See Pope v. Blue, No.
3:92CV71-P (W.D.N.C. April 16, 1992), aff’dmem., 113 S. Ct.
30 (1992). It contains two majority-minority districts, both with
African-American voting majorities.6 In the First District, located
entirely in the Coastal Plain, more than 80 percent of the residents
live in rural areas or towns of less than 20,000 people. In the
Twelfth District, drawn along Interstate 85 and the Piedmont
Crescent, 80 percent of the residents live in cities with populations
of more than 20,000.7

6 The First District is 52.41 % African-American in registered voters and
53.40% African-American in voting age population. The Twelfth District is
54.71 % African-American in registered voters and 53.34% African-American in
voting age population. See the analysis of each district set forth at App. pp. 19a-
24a. This analysis reflects data contained in the 1990 Census of Population and
Housing, P.L. 94-171, and was submitted to the Attorney General as apart of the
request to preclear the Plan. The African-American percentages in the First and
Twelfth Districts were achieved by drawing the two districts so they included
parts of seventeen of the nineteen North Carolina counties with 20,000 or more
African-American residents.

7 Most of the counties included in whole or in part in the First District are
subject to the preclearance requirements of § 5 of the Voting Rights Act.
Additionally, eleven counties that are included in whole or in part in the First
District were involved in two of the state legislative districts held in Thornburg

(continued...)

After the Plan was submitted to the Attorney General and
precleared, Comp. 1 18, J.S. App. at 81a, Plaintiffs filed this
action claiming that the Plan was a racial gerrymander in violation
of Article One §§ 2 and 4 and of the Fourteenth and Fifteenth
Amendments to the Constitution. The Plaintiffs, who are five
white residents of the new Second and Twelfth congressional
districts, sued the United States Attorney General and the Assistant
Attorney General in charge of the Civil Rights Division in their
official capacities. Comp. 1 6, J.S. App. at 73a-74a. They also
sued the North Carolina State Board of Elections and a number of
state officials in their official capacities. The complaint alleged
that the federal Defendants "coerced" the state Defendants "into
creating two amorphous" majority-minority districts and abridged
the rights of all citizens and voters of North Carolina by their
"enforcement of an erroneous interpretation of the Voting Rights
Act. . . . " Comp. 11 28, 29, J.S. App. at 88a-90a. Although
Plaintiffs amended their complaint to allege specifically that the
state Defendants had an "unconstitutional and racially discriminato
ry intent and purpose" in drawing the districts, they did so by
attributing an unconstitutional intent and purpose to the state
Defendants in "conform[ing] to the requirements prescribed by"
the federal Defendants. Amendment to Comp. 1 36(A), J.S. App.
at 101a-04a (hereafter "Comp. 1 36(A).").

The three-judge District Court dismissed the claims against
the state Defendants for failure to state a claim for relief pursuant 7

7(...continued)
v. Gingles, 478 U.S. 30 (1986), to violate § 2 of the Act. The Twelfth District
includes portions of two counties subject to the preclearance requirements of §
5 of the Voting Rights Act — specifically, Gaston and Guilford Counties — and
portions of Mecklenburg and Forsyth Counties, in which violations of § 2 of the
Voting Rights Act were found with respect to legislative districts in Gingles. In
addition, the Twelfth District includes part of Durham County, in which
significant racially polarized voting was found in Gingles.

to Fed. R. Civ. P. 12(b)(6). It concluded that Plaintiffs’ "broad
claim of per se unconstitutionality because of the form of race-
consciousness in redistricting at issue here is flatly foreclosed by
. . . United Jewish Organizations, Inc. v. Carey, 430 U.S. 144
(1977). . . . " J.S. App. at 18a-19a. The majority also concluded
that Plaintiffs had not alleged the necessary invidious discrimina
tory intent nor discriminatory impact on the part of the state
Defendants in drawing the plan. J.S. App. at 21a-24a. Judge
Voorhees dissented from this part of the opinion below. J.S. App.
at 27a, 60a, 29a-60a generally ,8

SUMMARY OF ARGUMENT

The Plaintiffs assert that the North Carolina General
Assembly created two majority-minority congressional districts in
order to comply with the requirements of the Voting Rights Act (as
interpreted by the United States Attorney General) and that this
purpose was constitutionally invidious. This argument is squarely
contrary to this Court’s equal protection decisions, including the
cases addressing race-based claims of vote dilution and gerryman
dering. See, e.g., Rogers v. Lodge, 458 U.S. 613 (1982). Those
decisions hold that a legislature’s intent is invidious only when its
decision was motivated in part "because of, not merely in spite of,
[the decision’s] adverse effects" on the allegedly injured group.
McCleskey v. Kemp, 481 U.S. 279, 298 (1987). In the present
case, the Plaintiffs have not alleged, and the District Court
correctly held that they could not plausibly allege, that the

8 The majority also dismissed the claims against the federal Defendants for
lack of jurisdiction and failure to state a claim pursuant to Fed. R. Civ. P. Rule
12(b)(1) and (6). J.S. App. at 7a-12a. Judge Voorhees joined the part of the
opinion dismissing the claim against the federal defendants for lack of jurisdic
tion, but dissented from the Rule 12(b)(6) ruling regarding the federal defendants
on the grounds that the court should not have considered the question. J .S. App.
at 27a-29a, 60a.

legislature’s decision embodied an intent to impose an adverse
effect upon any racial group. The Plaintiffs, instead, ask the Court
to abandon its traditional understanding of invidious intent for a
revisionist interpretation that is not supported by the original
meaning or the purpose of the Fourteenth or Fifteenth Amend
ments and that would require the Court to repudiate settled case
law.

The decisions adjudicating race-based claims of unconstitu
tional vote dilution also require that plaintiffs allege a discriminato
ry effect amounting to exclusion from the political process. See,
e.g., White v. Regester, 412 U.S. 755 (1973). The Plaintiffs make
no allegation of such a discriminatory effect, and the District Court
correctly held that they could not plausibly do so. The complaint,
therefore, fails to state a cause of action both because it does not
allege invidious intent and because it does not allege discriminatory
effect.

In the alternative, the Plaintiffs argue that the State’s Plan
should be evaluated under the strict scrutiny inquiry applied to
remedial racial preferences in public education, employment and
contracting. See, e.g., City o f Richmond v. J. A. Croson Co., 488
U.S. 469 (1989). There is, however, no reason for the Court to
abandon its well-established case law governing claims about
districting, e.g., Rogers v. Lodge, supra. The Plan does not
afford or deny the relevant public good (the right to vote and to
participate in the political process) on the basis of race, which is
the situation the Croson test is designed to address. If Croson did
apply, furthermore, it is evident from the Plaintiffs’ own allega
tions that the Plan is a narrowly tailored means of pursuing the
State’s compelling interest in complying with the Voting Rights
Act and addressing the present effects of public and private racial
discrimination.

ARGUMENT

In t r o d u c t io n

The Court has directed the parties to brief the following
question:

Whether a state legislature’s intent to comply with
the Voting Rights Act and the Attorney General’s
interpretation thereof precludes a finding that the
legislature’s congressional redistricting plan was
adopted with invidious discriminatory intent where
the legislature did not accede to the plan suggested
by the Attorney General but instead developed its
own.

In the context of this case, the answer to the Court’s
question is, "Yes." Assuming arguendo that "the legislature did
not accede to the plan suggested by the Attorney General,"
nevertheless, the Plaintiffs’ allegations, and the premises on which
their case is founded, do indeed preclude any "finding" that the
legislature’s congressional redistricting Plan was adopted with
invidious discriminatory intent.9

Plaintiffs have alleged that the state Defendants drew their
plan to comply with the Voting Rights Act, or at least to conform
to the Attorney General’s requirements for preclearance under § 5

9 The Attorney General has no statutory authority to suggest a redistricting
plan, and the state Defendants do not understand the Attorney General’s objection
letter to have taken the unprecedented step of proposing a plan. To the extent
that the letter implicitly suggested the means by which the State might satisfy the
Attorney General’s concerns, the suggestion was that the legislature create a
second majority-minority district. The State’s Plan, of course, did so. To the
extent that the letter implicitly suggested where the districts should be located,
alternative suggestions were made. One of those alternatives was in fact
incorporated in the State’s Plan.

of the Voting Rights Act. Plaintiffs have not alleged that the state
Defendants used the preclearance process as a pretext for achieving
some other racially-based motive in addition to the conscious
drawing of majority-minority districts. That being so, Plaintiffs’
complaint is grounded on a foundation which turns not upon
whether the state Defendants acceded to any specific, "plan
suggested by the Attorney General," but on the assumption that the
state Defendants’ purpose was to satisfy the Attorney General’s
objection, regardless of where or how the districts were drawn.
Plaintiffs’ complaint is that the drawing of race-conscious districts
is inherently unconstitutional or that, at least, the drawing of two
majority-minority districts in North Carolina is necessarily
unconstitutional when the districts are allegedly designed to
guarantee the election of two minority members of Congress. As
Plaintiffs candidly concede in their brief, it makes no difference to
their case "whether or not the State Appellees accepted fully a
redistricting plan suggested by the Attorney General." Appellants’
Brief on the Merits, pp. 78-79 (hereafter "Pl.Br.").

As the District Court noted, Plaintiffs are white residents
in a majority-white state with a majority-white legislature.10
They do not allege, and cannot plausibly allege, that the state
Defendants discriminated against them as white voters with the
invidious intent essential to a successful racial gerrymandering
claim.11 Plaintiffs’ status as white voters in North Carolina,

10 See J.S. App. at 18a, 23a. Of the 120 state House seats, fourteen were
held by African-Americans and one by a Native American at the time the Plan
was adopted. Five of the fifty state Senators were African-American.

11 In its opinion, the District Court noted that the complaint does not actually
state Plaintiffs’ race and alleges injury not to the Plaintiffs as members of a
particular race, but to all North Carolinians of all races. J.S. App. at 17a.
Because taking this reticence literally would make the complaint "self-defeating"
on its face, the District Court took judicial notice of the fact that the Plaintiffs are

(continued...)

given the racial composition of the State and of the legislature and
the fact that ten of the State’s twelve congressional districts are
majority-white, forecloses any contention that the state Defendants
acted with an intent to harm them because they are white. The
complaint, accordingly, makes no such allegation. Thus, in this
case, based on the complaint and theories propounded by the
Plaintiffs, it makes no difference whether the legislature did or did
not accede to any "plan suggested by the Attorney General"
because Plaintiffs do not and cannot allege an intent to harm them
specifically as white voters.

This case does not present the Court with any other
challenges to the validity of the State’s Plan. The State’s congres
sional districts conform to the one-person, one-vote requirement as
closely as is mathematically possible. The Plaintiffs have express
ly disavowed any claim of political gerrymandering, Pl.Br. at 12,
and do not ask this Court to craft federal constitutional standards
governing the shape or compactness of congressional districts.12

"(...continued)
white and construed the complaint to allege injury based on that racial identity.
Id. at 17a-18a. Before this Court, the Plaintiffs suggest at one point that two of
their number have been injured by the Plan as "registered white voters" in one
of the majority-minority districts, Pl.Br. at 44, but their fundamental claim
remains one of injury to "North Carolina voters — white and black." Id. at 45.
See also id. at 67, 69 (describing the injury as one to "registered voters"). At
least as a technical matter, therefore, Plaintiffs appear to lack standing. See
Schlesinger v. Reservists Committee, 418 U.S. 208, 227-28 (1974) (injury to the
"generalized interest" of all citizens in constitutional governance is too abstract
to support standing).

12 The Plaintiffs’ allegation about the shape of the State’s congressional
districts is a statement of the injury they assert they have suffered rather than a
free-standing constitutional claim. See Comp. ̂ 26, J.S. App. at 86a-87a. This
Court’s decision in Pope v. Blue already has rejected claims that the Plan violates
constitutional standards of contiguity and compactness or is irrational. See
Jurisdictional Statement of Appellants, Pope v. Blue at i (questions presented).

(continued...)

The Plaintiffs’ claim under the Voting Rights Act rests entirely on
their race-based constitutional argument. See Amendment to
Comp, f 2(A), J.S. App. at 104a-05a.2 13

In the remainder of this Brief, the state Defendants will
analyze Plaintiffs’ theories and the relevant case law to demon
strate why Plaintiffs’ complaint was properly dismissed and why
they cannot succeed on their complaint, an analysis which
demonstrates why, at least in the context of this case, the allegation
that the State acted with the intent to comply with the Voting
Rights Act precludes a finding of invidious discriminatory intent
even if the legislature did not accede to a "plan suggested by the
Attorney General."

l2(... continued)
In light of that fact, and of the Plaintiffs’ statement that they ''in no way adopt or
incorporate the contentions’' of the Pope plaintiffs, Comp. ̂ 19, J.S. App. at 82a,
the suggestion in the brief amicus curiae of the Republican National Committee
that this appeal presents such questions is insupportable.

13 The Plaintiffs’ statutory argument assumes that their constitutional claim
is well-founded and asserts that this Court therefore must construe the Act to
forbid the actions of the federal and state Defendants or declare the Act
unconstitutional pro tanto.

I. THE NORTH CAROLINA LEGISLATURE’S INTENT
TO COMPLY WITH THE VOTING RIGHTS ACT
AND THE ATTORNEY GENERAL’S INTERPRETA
TION THEREOF PRECLUDES A FINDING THAT
THE LEGISLATURE’S CONGRESSIONAL REDIS
TRICTING PLAN WAS ADOPTED WITH INVIDI
OUS DISCRIMINATORY INTENT.

A. Plaintiffs Make No Allegation that the
Legislature Acted with Invidious Intent as
This Court Employs That Term.

The Plaintiffs’ claim of racial discrimination is simple and
straightforward: the General Assembly’s purposeful use of race in
redistricting, motivated by its desire to comply with the Voting
Rights Act as interpreted and administered by the Attorney
General, in and of itself constitutes the invidious discriminatory
intent necessary to state an equal protection claim.14 See Comp,
f 36(A).15 This claim is flatly contrary to settled law. In the

14 The Plaintiffs allege violations of the Fifteenth Amendment, and of the
Fifth Amendment by the federal Defendants, as well as of the Equal Protection
Clause. For the purposes of this appeal, however, these provisions need not be
treated separately: plaintiffs alleging racial discrimination in violation of each
must be able to allege the presence of invidious intent in the challenged
governmental action. See Washington v. Davis, 426 U.S. 229, 240 (1976) (Equal
Protection Clause); City o f Mobile v. Bolden, 446 U.S. 55, 62 (1980) (plurality
opinion) (Fifteenth Amendment); Weinberger v. Wiesenfeld, 420 U.S. 636, 638
n.2 (1975) (Court’s "approach to Fifth Amendment equal protection claims” is
"precisely the same as to equal protection claims under the Fourteenth Amend
ment"). For the sake of brevity, this Brief will discuss the Plaintiffs’ claims in
terms of "equal protection."

15 Plaintiffs correctly note that the state Defendants acknowledge that the
legislature acted in a race-conscious manner, Pl.Br. at 21, but their conclusion
that all "material facts are undisputed," id. at 81, is premature. Because the
Defendants prevailed on a Rule 12(b)(6) motion to dismiss, they have not as yet

(continued...)

absence of any claim about pretext, the Plaintiffs’ affirmative
statement that the purpose of the legislature’s action was compli
ance with the Act precludes the possibility that the legislature’s
intent was invidious in the constitutional sense.5 16 17

This Court often has observed that it is a "basic equal
protection principle that the invidious quality of a law claimed to
be racially discriminatory must ultimately be traced to a racially
discriminatory purpose." Washington v. Davis, 426 U.S. 229, 240
(1976). The Court has emphatically reaffirmed this principle in
the area of voting rights: "[A] showing of discriminatory intent
has long been required in all types of equal protection cases
charging racial discrimination," Rogers v. Lodge, 458 U.S. 613,
617 (1982), including cases such as the present that allege an
unconstitutional dilution of a racial group’s voting strength. Id.11

I5(...continued)
answered the complaint. For the purposes of the present appeal, of course, all
factual allegations in the complaint must be taken as true.

16 This action therefore is fundamentally unlike cases such as Quilter v.
Voinovich, 794 F. Supp. 695 (N.D. Ohio 1992), prob. jur. noted, 112 S. Ct.
2299 (1992), which involve allegations of pretext. In Quilter, the plaintiffs
alleged that the state legislature's professed intent to comply with the Voting
Rights Act was in fact a pretext and that the actual purpose and effect of the
legislature’s legislative redistricting was to harm racial minority voters "under the
guise of protecting minority rights." 794 F. Supp. at 698. The district court’s
holding in Quilter that the state legislature had an inadequate legitimate basis for
its "wholesale" creation of majority-minority districts rested directly on its
perception of "the pitfalls which arise from a per se application of majority-
minority districting, i.e., minority vote dilution (in violation of § 2 of the Voting
Rights Act] can result from the concentration of minorities in districts." Id. at
702 n.2. In the present case, in contrast, the Plaintiffs have made no assertion
that the State’s purpose was anything other than what it purported to be, and they
make no claim that the State’s Plan violates § 2 of the Act.

17 The Court recently reiterated the applicability of the invidious intent
requirement to vote dilution claims in Davis v. Bandemer, 478 U.S. 109, 129 &
n .ll (1986) (plurality opinion). See also id. at 171 n.10 (Powell, J., dissenting)

(continued...)

The Plaintiffs therefore must allege that the Plan was enacted with
a racially invidious intent in order to state a claim. The District
Court correctly dismissed the action because the Plaintiffs have not
alleged invidious intent in the sense in which this Court’s prece
dents use that term.

According to the Plaintiffs, all that need be alleged to
state an equal protection claim, at least with respect to intent, is
that the state legislature knowingly drew up a reapportionment plan
that contains two districts in which black voters are in a majority.
It is that purposeful action, Plaintiffs assert, that embodied "a
racially discriminatory intent and purpose, regardless of [the
legislature’s] motives." Comp, f 36(A). As the District Court
below correctly concluded, "this of course is not . . . the meaning
of ‘invidious’ discrimination in equal protection jurisprudence."
J.S. App. at 23a. "Simply put . . . the plaintiffs here have not
alleged — nor could they prove under the circumstances properly
before us on this record -- an essential element of their equal
protection (and parallel Fifteenth Amendment) claim: that the
redistricting plan was adopted with the purpose and effect of
discriminating against white voters such as plaintiffs on account of
their race." Id. at 22a-23a. 7

I7(...continued)
(voting rights cases ''have construed the Equal Protection Clause to require proof
of intentional discrimination . . . In none of those cases was the Court willing to
assume discriminatory intent"). Racial vote dilution cases thus differ from cases
in which government makes formal use of race or some other suspect classifica
tion as the express basis on which to differentiate between individuals. In vote
dilution cases such as the present action, no one is being denied the relevant
public good (the right to vote), and the formal classification the legislature is
employing to organize the exercise of the franchise is geographic rather than
racial.

1 6

The word "invidious" itself suggests the flaw in the
Plaintiffs’ argument: it is not every race-related decision that the
Equal Protection Clause bans, but only those that flow from
"prejudice and antipathy ~ a view that those in the burdened class
are not as worthy or deserving as others." City o f Cleburne v.
Cleburne Living Center, 473 U.S. 432, 440 (1985). It is clearly
settled law that governmental awareness that a decision will have
a specific impact on a protected class or activity does not by itself
constitute the invidious intent necessary to make out an equal
protection claim. In the leading case, Personnel Administrator v.
Feeney, 442 U.S. 256 (1979), the Court rejected the argument that
a state program giving an absolute preference in civil service
employment to veterans was an unconstitutional discrimination on
the basis of sex because the state legislature knew that the
preference would have a greatly disproportionate impact on men
and women.18 The Court noted that the legislature must have
been aware that "most veterans are men" and th a t"[i]t would thus
be disingenuous to say that the adverse consequences of this
legislation for women were unintended, in the sense that they were
not volitional or in the sense that they were not foreseeable." Id.
at 278. Despite these facts, the plaintiff had not and could not
show the presence of invidious intent in the constitutional sense.

"Discriminatory purpose," . . . implies more than
intent as volition or intent as awareness of conse
quences. It implies that the decisionmaker, in this
case a state legislature, selected or reaffirmed a
particular course of action at least in part "because
of," not merely "in spite of," its adverse effects
upon an identifiable group.

This Court has expressly applied Feeney’s interpretation of invidious intent
to race-based equal protection claims. See, e.g., McCleskey v. Kemp, 4S1 U.S
279, 298 (1987).

Id. at 279 (citations omitted). Because there was no allegation that
any part of the state’s purpose was to harm women, as opposed to
benefitting veterans, the plaintiff had failed to state an equal
protection claim.

Feeney thus clearly distinguished situations where (as in
Feeney) a legislature acts to aid one group without any affirmative
intention of harming another and those in which at least part of the
legislature’s purpose in acting is to harm a targeted group.
Invidious intent "means actual motive; it is not a legal presumption
to be drawn from a factual showing of something less than actual
motive." Pullman-Standard v. Swint, 456 U.S. 273, 289-90
(1982) (discussing concept in constitutional and Title VII disparate
treatment cases). Government acts with invidious racial intent only
if the decision challenged was made because the decisionmaker
viewed the negative effects on a racial group as a "good" that it
was pursuing.19 In cases involving redistricting, the Court repeat
edly has held that a legislative apportionment denies equal
protection only if its affirmative purpose is "to minimize or cancel
out the voting potential of racial or ethnic minorities." City o f
Mobile v. Bolden, 446 U.S. 55, 66 (1980) (plurality opinion).
Accord, Rogers v. Lodge, 458 U.S. at 617.

The Court’s most recent decision interpreting the concept
of invidious intent reaffirmed the Davis-Feeney understanding. In
Bray v. Alexandria Women’s Health Clinic,___U .S .___ , 113 S.

19 See, e.g., Rogers v. Lodge, 458 U.S. 613, 617 (1982) (intent shown if the
state action is a "purposeful device to further racial discrimination"); Whitcomb
v. Chavis, 403 U.S. 124, 149 (1971) (same); City o f Richmond v. United States,
422 U.S. 358, 378 (1975) (Constitution forbids actions that constitute "gross
racial slurs, the only point of which is ‘to despoil colored citizens’"). See Brest,
In Defense o f the Antidiscrimination Principle, 90 Harv. L. Rev. 1, 13 (1976)
(legislature acts with unconstitutional racial purpose when it gives "positive
weight to the impermissible factor of racial prejudice").

Ct. 753 (1993),20 the Court held that anti-abortion protesters
could not be found liable under 42 U.S.C. § 1985(3), because
opposition to abortion is not a form of the "class-based, invidiously
discriminatory animus" (in the Bray context, animus against
women) required under the statute. Id. at 758. The respondents
had not shown that the protesters’ actions embodied "a purpose
that focuses upon women by reason of their sex" or were motivat
ed "by a purpose (malevolent or benign) directed specifically at
women as a class." Id. at 758 (emphasis added). The Court
stressed the link between invidious animus and "hatred of or
condescension toward" the class against whom the animus
supposedly is directed, id. at 760, and cited Feeney for the familiar
proposition that awareness of or even indifference about the
disparate impact on a protected class does not constitute invidious
intent. Id. at 760-61 & n.4.21 In the light of Bray, it is clear that
the District Court below correctly dismissed the Plaintiffs’
complaint: the Plaintiffs have not alleged that the legislature’s
purpose was "focused upon" or "directed specifically at" white
voters as a class, and still less that the legislature was motivated by

20 Although Bray is a statutory decision, its discussion is fully relevant to the
present case because the Court itself equated the "invidiously discriminatoiy
animus" necessary to state a § 1985(3) claim and the invidious intent required in
alleging an equal protection violation. See Bray, 113 S. Ct. at 760-61 & n.4.

21 As the Bray Court noted, the concept of invidious purpose or animus is
not a psychological one. "We do not think that the ‘animus’ requirement can be
met only by maliciously motivated, as opposed to assertedly benign (though
objectively invidious) discrimination against women. It does demand, however,
at least a purpose that focuses upon women by reason of their sex." Id. at 759.
A decisionmaker whose intent was to prevent minority citizens from voting would
be acting on the basis of an "objectively invidious" intent even if he or she
genuinely believed that those citizens would be better off without the franchise.
What is missing from the Plaintiffs’ allegations is the element of adverse focus
which Bray emphasized as essential: the Plaintiffs have not alleged that the
legislature acted with a purpose "that focuses upon [white voters] by reason of
their [racej."

"hatred of or condescension toward" white voters. Their com
plaint, therefore, does not allege a violation of equal protection.

The Plaintiffs, with admirable candor, have not made the
facially implausible allegation that the white-majority North
Carolina General Assembly that enacted the Plan did so "because
of" its supposed adverse effects on white voters {Feeney) or "to
further racial discrimination" against white voters (Rogers). In the
terms this Court employed in Feeney, the Plaintiffs’ argument is
that the legislature’s "invidious" intent was its race-conscious
decision to create two majority-minority districts "in spite of" any
adverse effect on white voters. See Comp, f 36(A). The
Plaintiffs thus are asking the Court to repudiate the settled
understanding of invidious intent. They have not, however,
successfully executed the difficult task of demonstrating why this
Court should discard so central an element of constitutional law.

B. T h e P l a in t if f s ’ A r g u m en ts in S u ppo r t o f T heir
P r o po sed Rev isio n o f E q u a l P r o tec tio n D o c
t r in e A re U n c o n v in c in g .

1. Plaintiffs’ Revisionist Interpretation of Invidious
Intent is Contrary to The History and Purpose
of the Equal Protection Principle.

The Plaintiffs propose that this Court adopt the principle
that the Constitution imposes a blanket prohibition on all race
conscious governmental action, and in support of this proposal,
they suggest that the Equal Protection Clause already mandates
what they call a "color-blind Constitution." Pl.Br. at 33-34.22

22 The terminology of "color-blindness" comes most immediately, of course,
from the first Justice Harlan’s dissent in Plessy v. Ferguson, 163 U.S. 537
(1896). Justice Harlan’s famous statement that "Our Constitution is color-blind,"

(continued...)

This proposal is contrary both to the original meaning of the Equal
Protection Clause and to the cases interpreting the Clause. As
both this Court and many commentators have observed, "[t]he
concept of benign race-conscious measures . . . is as old as the
Fourteenth Amendment." Metro Broadcasting v. FCC, 497 U.S.
5 4 7 ,___, 110 S. Ct. 2997, 3008 n. 12 (1990).23 There is little or
no basis on which to argue that the original intent of the framers
and ratifiers of the Fourteenth and Fifteenth Amendments was to
prohibit all race-conscious measures intended to benefit racial
minorities.24

^(...continued)
id. at 559, is not the clear endorsement of a per se ban on race-conscious state
action that the Plaintiffs take it to be. The substantive ground of Harlan’s
objection to de jure racial segregation was that segregation laws "proceed on the
ground that colored citizens are so inferior and degraded that they cannot be
allowed" to associate with white citizens. Id. at 560. Harlan would have ruled
the segregation law at issue in Plessy unconstitutional precisely because its makers
had acted "because of' the law’s adverse effects on black citizens: Harlan’s
"color-blind Constitution" embodied the Feeney principle of invidiousness rather
than the Plaintiffs’ proposed revision. See also id. at 563 (Harlan, J ., dissenting)
(majority’s decision upholds legislation "conceived in hostility to, and enacted for
the purpose of humiliating, citizens of the United States of a particular race").

23 See, e.g., Klarman, An Interpretive History o f Modem Equal Protection,
90 Mich. L. Rev. 213, 315 (1991) (neither language nor history of Equal
Protection Clause requires "conclusion that all racial classifications are suspect");
Schnapper, Affirmative Action and the Legislative History o f the Fourteenth
Amendment, 71 Va. L. Rev. 753 (1985) (the original understanding of the
Amendment did not prohibit all race-conscious legislation); Ely, The Constitution
ality o f Reverse Race Discrimination, 41 U. Chi. L. Rev. 723 , 728 (1974)
("historical meaning and function" of the Fourteenth Amendment was to prohibit
"discrimination against Blacks," not to ban all race-conscious measures).

24 As Judge Richard Posner once observed, the original-intent argument
against non-invidious race-conscious measures "ha[s] no leg to stand on."
Posner, The DeFunis Case and the Constitutionality o f Preferential Treatment o f
Racial Minorities, 1974 Sup. Ct. Rev. 1, 21-22. The most recent study to
address the historical questions concludes that the evidence about the Fourteenth
Amendment’s original purpose "tends strongly to refute" the contention that "the

(continued...)

The Court’s seminal equal protection case, Strauder v.
West Virginia, 100 U.S. 303 (1879), described the Reconstruction
amendments’ ban on racial discrimination as conferring on
African-Americans "the right to exemption from unfriendly
legislation against them distinctively as colored," id. at 307-08, not
as a blanket prohibition on race-conscious legislation. Cf. City o f
Memphis v. Greene, 451 U.S. 100, 128 (1981) (foreseeable
disparate impact on racial minority did not amount to "a form of
stigma so severe as to violate the Thirteenth Amendment"). The
holding in Washington v. Davis that allegation and proof of
invidious purpose is a necessary part of an equal protection case
merely "reaffirmed a principle well-established in a variety of
contexts." Arlington Heights v. Metro. Housing Dev. Corp., 429
U.S. 252, 265 (1977). See Klarman, An Interpretive History o f
Modern Equal Protection, 90 Mich. L. Rev. 213, 295 (1991)
(Davis restated "the traditional understanding of equal protection
rights [that] acknowledged a constitutional violation only when a
particular group had been deliberately disadvantaged"). The
Fifteenth Amendment cases are equally clear: in Gomillion v.
Lightfoot, 364 U.S. 339 (1960), for example, the Court held that
the plaintiffs had stated a cause of action because their allegations,
if proven, showed that the legislature had "single[d] out a readily
isolated segment of a racial minority for special discriminatory
treatment" and had redrawn municipal boundaries in order to
deprive black citizens "of the benefits of residence" within the city

u(... continued)
Fourteenth Amendment was intended by its framers to require color blindness on
the part of government." A. Kull, The Color-Blind Constitution vii (1992). See
id. at 53-87 (discussing the evidence). Professor Kull’s evident sympathy on
principle for a per se ban on race-consciousness, id. at 220-24, renders his
historical conclusions about it particularly persuasive.

as a voting unit. Id. at 346, 341.25 See also Bolden, 446 U.S.
at 62 (plurality opinion); id. at 102 (White, J., dissenting).

The requirement that plaintiffs allege the presence of an
actual and invidious intent in order to state an equal protection
claim plays a central role in equal protection doctrine. First, it
directly embodies the "central purpose" of the Equal Protection
Clause, Davis, 426 U;S. at 240, which is to deny any "legitimacy"
to an "official action . . . taken for the purpose of discriminating
against [African-Americans] on account of their race." City o f
Richmond v. United States, 422 U.S. 358, 378 (1975) (emphasis
added). Recent decisions have stressed that the Clause’s command
is general and thus protects all racial groups. See, e.g., City o f
Richmond v. J.A. Croson Co., 488 U.S. 469, 493-96 (1989)
(plurality opinion). Those very decisions, however, have reiterat
ed the Court’s insistence that the concern of the equal protection
principle is with the pernicious effects of "illegitimate racial
prejudice or steredtype" in public decisionmaking. Id. at 493.

The invidious intent requirement also serves a crucial role
in defining those governmental decisions susceptible to invalidation
on equal protection grounds. If simple awareness that a decision
will have a racially disproportionate effect satisfied the intent
requirement, many governmental programs would be vulnerable to
challenge despite their legitimate purposes. See Davis (rejecting
a claim based on racially disparate effects of standardized testing); 25

25 Contrary to Plaintiffs’ reading of Gomillion, Pl.Br. at 30-31, that decision
did not rest on a per se ban on race-consciousness, but on the adequacy for
Fifteenth Amendment purposes of an allegation that the redrawn municipal
boundaries in dispute were "a device to disenfranchise Negro citizens" literally,
by placing them outside the city limits. 364 U.S. at 341. See Strauss,
Discriminatory Intent and the Taming o f Brown. 56 U. Chi. L. Rev. 935, 951-52
(1989) (Gomillion concerned the pretextual use of district lines for covert purpose
of disqualifying black voters).

McCleskey v. Kemp, 481 U.S. 279 (1987) (rejecting a claim based
on statistical disparities in racial impact of capital sentencing law).
The Plaintiffs’ proposed redefinition of invidious intent would
broaden the range of potential equal protection claims in a fashion
unjustified by reference to the central purpose of the equal
protection principle. The definition they would have this Court
adopt lacks principled limits in a world in which governmental
units have increasing access to sophisticated data about the racial
and other consequences of their decisions. Gaffney v Cummings,
412 U.S. 735, 753-54 (1973) (inevitable that lawmakers know the
political impact of the districts they create). The Plaintiffs have
offered no persuasive reason why this Court should overrule the
many cases establishing the meaning of invidious intent and replace
them with a concept fraught with uncertainty.

2. This Court’s Decisions Do Not Compel or Even
Support the Plaintiffs’ Reinterpretation of the
Invidious Intent Requirement.

The Plaintiffs base much of their argument on a faulty
understanding of the cases they cite and deny the relevance of the
decision the District Court held to be "directly on point." J.S.
App. at 19a. None of the decisions that supposedly advance their
contention that the Constitution should be read to impose a per se
ban on race-conscious redistricting in fact does so.26 In particu

26 This Court’s one-person, one-vote decisions, Pl.Br. at 22-29, simply are
not relevant to a race-based equal protection claim, and Plaintiffs did not and
could not allege that the State’s congressional districts do not satisfy the equal
population mandate of Article I Section 2. See Beer v. United States, 425 U.S.
130, 142 n.14 (1976) (one-person, one-vote decisions "are not relevant" in
evaluating a race-based challenge to legislative reapportionment); Davis v.
Bandemer, 478 U.S. 109, 150 (1986) (O’Connor, J., concurring) (there is no
"vote dilution" in the Reynolds v. Sims sense as long as the equal population
requirement is satisfied).

lar, the Court’s recent line of decisions forbidding the racially
discriminatory use of peremptory challenges, on which the
Plaintiffs place special emphasis, Pl.Br, at 33-^9, expressly rest on
and endorse the Feeney understanding of invidious intent. See,
e.g., Hernandez v. New York, 500 U.S. __ L, __ , 111 S. Ct.
1859, 1866 (1991).27

The Plaintiffs seek to avoid the authority of United Jewish
Organizations v. Carey, 430 U.S. 144 (1977), which, as the
District Court noted, "flatly foreclose^]" their claim. J.S. App.
at 19a. In U.J.O., the Attorney General denied preclearance to a
state redistricting plan and in turn "the State sought to meet what
it understood to be the Attorney General’s objections and to secure
his approval" by creating additional majority-minority districts.
Id. at 151. When the Attorney General precleared the revised
plan, white voters28 challenged it as a racial gerrymander violat
ing the Fourteenth and Fifteenth Amendments, and this Court held
that they had failed to state a claim. A majority of the Court
applied the traditional Washington v. Davis understandihg of
unconstitutional discrimination and agreed that the U.J. O. plaintiffs

27 Recent decisions applying heightened scrutiny to affirmative action
programs, Pl.Br. at 52-53, are also consistent with the traditional understanding
of invidious intent. Croson, 488 U.S. at 493 (purpose of strict scrutiny is to
"’smoke out’ Illegitimate uses of race"). Cf. Lamprecht v. FCC, 958 F.2d 382,
393 n.3 (D.C. Cir. 1992) (Thomas, Circuit Justice) (purpose of heightened
scrutiny of sex-based affirmative action is to insure that the measure is not based
on "archaic stereotypes"). The Croson line of decisions, in other words, employs
strict scrutiny in order to determine whether the hidden motivation behind the
overt use of race to distribute public goods is in fact invidious in the Davis-
Feeney sense.

28 Although the plaintiffs in U.J.O. were members of a Hasidic Jewish
community that was fractured by the state’s new plan, the only contention
presented to this Court was that “the use of racial criteria by the State of New
York in its attempt to comply with § 5 of the Voting Rights Act" was unconstitu
tional discrimination against white voters. 430 U.S. at 148.

had not alleged an invidious racial intent to harm white voters:
"There is no doubt that in preparing the 1974 legislation the State
deliberately used race in a purposeful manner. But its plan
represented no racial slur or stigma with respect to whites or any
other race." Id. at 165 (White, J., joined by Stevens and
Rehnquist, JJ.). See id. at 179-80 (Stewart, J., joined by Powell,
J.).29 A slightly different majority agreed that the state’s plan
was valid because it was enacted in order to comply with § 5 of
the Voting Rights Act. See id. at 159-61 (White, J., joined by
Brennan, Blackmun, and Stevens, JJ.); id. at 180 (Stewart, J.,
joined by Powell, J.).30

The Plaintiffs deny the dispositive force of U.J.O. in
several ways, none of which is persuasive. Their suggestion that
the decision is "a dangerous relic from the past," Pl.Br. at 40,
incorrectly treats U.J. O. as though it were an isolated case out of
step with the rest of this Court’s jurisprudence: in fact, U.J. O. is
a consistent application both of the general principle of invidious
intent and of the Court’s specific interpretation of § 5. See infra,
at 27-31. The Plaintiffs’ lengthy discussion of the social risks that
may be associated with race-conscious redistricting, Pl.Br. at 41-
46, is an argument about the policies that the United States
Congress and the North Carolina General Assembly have adopted,
and it is sufficient to reply that such policy considerations are

29 This same majority of Justices thus recognized the affirmative power of
the states to use race-conscious redistricting to protect the voting power of racial
minorities. See 430 U.S. at 165-68 (White, J.); id. at 180 & n.* (Stewart, J.).

30 In fact, the lone dissenter in U.J.O., Chief Justice Burger, accepted the
constitutionality of race-conscious redistricting that is "reasonably necessary to
assure compliance with federal voting rights legislation," Fullilove v. Klutznick,
448 U.S. 448, 483 (1980) (Burger, C.J.) (citing his dissent in U.J.O.), and
objected only to the fact that the state had "mechanically adhered" to a 65%
figure for creating adequate majority-minority districts. U.J.O., 430 U.S. at 183
(Burger, C.J., dissenting).

within the competence of legislatures to weigh.31 Their observa
tion that Durham County, in which they live, is not covered by §
5, id. at 65-66, is not germane since they are challenging a
statewide plan that must be precleared.32

The Plaintiffs also suggest that this Court’s affirmative
action decisions have in some fashion undermined the validity of
the cases approving race-conscious redistricting, id. at 48, 63;
however, they neither explain nor even acknowledge the fact that
Justices of this Court have repeatedly observed that the continuing
validity of cases such as U.J.O. is unaffected by the Court’s
application of heightened scrutiny in the affirmative action context.
See Metro Broadcasting, 110 S. Ct. at 3019; Wygant v. Jackson
Bd. o f Education, 476 U.S. 267, 291 (1986) (O’Connor, J.,
concurring in the judgment); Fullilove v. Klutznick, 448 U.S. 448,
524 n.3 (1980) (Stewart, J., dissenting); Regents o f Univ. o f

31 The Plaintiffs remark with considerable understatement that their policy
arguments "are not of themselves a complete justification for" invalidating the
State’s Plan, but suggest that those arguments support their legal contentions.
Pl.Br. at 45-46. They fail to acknowledge that responsible commentators
vigorously contest their views. A recent study of race-conscious redistricting
under the Voting Rights Act, for example, concludes that "there seems to be no
factual basis for asserting that enforcement of the Voting Rights Act has led to
an increase in racial polarization by making race a more salient feature of politics
than it had been previously." B. Grofman, L. Handley & R. Niemi, Minority
Representation and the Quest for Voting Equality 132 (1992). In any event, the
responsibility for weighing the costs and benefits of the Act belongs to Congress.
Cf Gingles v. Edmisten, 590 F. Supp. 345, 356-57 (E.D.N.C. 1984), rev’d in
part on other grounds sub norn. Thornburg v. Gingles, 478 U.S. 30 (1986): in
eliminating an intent requirement from § 2, "Congress necessarily took into
account and rejected as unfounded, or assumed as outweighed, several risks to
fundamental political values [including the risk that] the imposing of affirmative
obligation upon government to secure [minority group voting] rights by race
conscious electoral mechanisms was alien to the American political tradition."

In determining the validity of a statewide redistricting plan, it is necessary
to look at the "overall effect" statewide and not merely at isolated areas. Connor
v. Finch, 431 U.S. 407, 427 (1977) (Blackmun, J., concurring in the judgment).

California v. Bakke, 438 U.S. 265, 304-05 (1978) (Powell, J.).
U.J.O. is entirely consistent with this Court’s current understand
ing of the equal protection principle, and under it the Plaintiffs
plainly have not stated a cause of action.

C. T h e P l a in t if f s ’ P r o po sed R e in t e r pr e t a t io n o f
In v id io u s In t e n t W o u ld Req u ir e T his C o u r t to
In v a l id a t e K ey P r o visio ns o f t h e V o tin g
R ig h ts A c t A nd T o R e p u d ia t e Its D ecisions
In t e r p r e t in g t h e A c t .

The Plaintiffs assert that "if the Voting Rights Act does
permit or authorize a State legislature to create Congressional
Districts with [a race-conscious] intent or purpose," the Act should
be held unconstitutional "to that extent and in that regard."
Amendment to Comp, f 2(A), J.S. App. at 104a-05a. In making
such an argument, the Plaintiffs ask this Court to reject the
considered constitutional judgment of the successive Congresses
that have extended and strengthened the Act and to repudiate its
own precedents recognizing the validity of race-conscious state
action taken in order to comply with the Act. The Plaintiffs have
not carried the very heavy burden of persuasion that they have
undertaken.

1. States Covered By the Preclearance Require
ments of the Voting Rights Act Have the Con
stitutional Authority to Create Majority-Minori
ty Districts in Order to Fulfill Their Section
Five Obligations.

"[T]he Fifteenth Amendment places responsibility on the
states for protecting voting rights," Senate Report No. 97-417,
reprinted in 1982 U.S. Code Cong. & Admin. News 235 (hereaf

2 8

ter "Sen.Rep. 97-417").33 However, in addition to this funda
mental constitutional responsibility, § 5 of the Voting Rights Act
places additional responsibilities and limitations on certain
states.34 Section 5 imposes on covered jurisdictions an affirma
tive obligation to demonstrate that changes in their electoral laws
are free both of invidious purpose and of discriminatory effect.
See McCain v. Lybrand, 465 U.S. 236, 247 (1984); Beer v. United

33 Legislative redistricting, including the reapportionment of seats for the
United States House of Representatives, is "primarily the duty and responsibility
of the State," Chapman v. Meier, 420 U.S. 1, 27 (1975), and state legislatures
have plenary authority within constitutional limits to pursue legitimate goals and
implement state policies. White v. Weiser, 412 U.S. 783, 795 (1973); Carrington
V. Rush, 380 U.S. 89, 91 (1965). Even in the absence of the Voting Rights Act,
it would seem that states could employ non-invidious race-conscious measures in
order to eliminate the effects of racial discrimination on the access of minority
group members to the electoral process. See U.J.O., 430 U.S. at 165-68 (White,
J.); City o f Rome v. United States, 446 U.S. 156, 212 n.5 (1980) (Rehnquist, J.,
dissenting). In Gaffney v. Cummings, the Court rejected a political gerrymander
ing challenge to a redistricting plan intended to create a fair balance between the
major political parties. In doing so, the Court emphatically stated with respect
to "racial or political groups” that "neither we nor the district courts have a
constitutional warrant to invalidate a state plan . . . because it undertakes, not to
minimize or eliminate the political strength of ahy group or party, but to
recognize it and, through districting, provide a rough sort of proportional
representation in the legislative halls of the State." 412 U.S. at 754. The
Court’s seminal racial vote-dilution decisions under the Constitution also
concluded that where "an identifiable racial or ethnic group had an insufficient
chance to elect a representative of its choice . . . district lines should be redrawn"
as a remedy. Davis v. Bandemer, 478 U.S. 109, 124 (1986) (analyzing earlier
cases). See also id. at 151 (O’Connor, J., concurring) (members of "a racial
minority group [that] is characterized by ‘the traditional indicia of suspectness’
and is vulnerable to exclusion from the political process" are entitled to "some
measure of protection against intentional dilution of their group voting strength").
Plaintiffs do not even discuss why these cases, and the Court’s identification of
"fair group representation" as a value of constitutional dimensions, Bandemer,
478 U.S. at 125 & n.9, do not provide an adequate basis for the State’s race
conscious redistricting.

34 States or local governmental units are covered if they have an identifiable
history of discrimination under the criteria established by Section 4 of the Act,
42 U.S.C. § 1973b.

States, 425 U.S. 130 (1976). Because § 5 coverage rests on
findings that a jurisdiction has "engaged in certain violations of the
Fifteenth Amendment," McCain, 465 U.S. at 244-45, covered
jurisdictions have a "constitutional duty to take affirmative steps to
eliminate the continuing effects of past unconstitutional discrimina
tion." Wygant, 476 U.S. at 291 (O’Connor, J., concurring in the
judgment) (discussing U.J.O.).3S North Carolina is, in effect, a
covered jurisdiction for congressional redistricting purposes, and
thus the legislature’s general authority to redistrict and to protect
voting rights is reenforced by its responsibility and power to
satisfy the requirements of § 5.

This Court approved the creation of majority-minority
districts as a means of satisfying a covered jurisdiction’s obliga
tions under § 5 in the leading case construing the provision. Beer
v. United States, 425 U.S. 130 (1976), concluded that § 5 forbids
the implementation of a redistricting plan that "would lead to a
retrogression in the position of racial minorities with respect to
their effective exercise of the electoral franchise." Id. at 141.
Under that standard, the Court held that the plan under review in

35 Jurisdictions covered by § 5 of the Voting Rights Act thus are under an
affirmative obligation to eliminate the vestiges of past racial discrimination in
their electoral systems that parallels the "duty and responsibility of a school
district once segregated by law . . . to take all steps necessary to eliminate the
vestiges of the unconstitutional dejure system." Freemanv. Pitts,___U .S.___ ,
112 S. Ct. 1430, 1443 (1992). The Plaintiffs’ statement that the legislature had
no basis on which to believe that official racial discrimination has infected North
Carolina’s congressional elections, Pl.Br. at 19, flies in the face of the fact that
forty counties in the State are covered under the Act and that as a result all
statewide redistricting must be precleared. The 1982 extension of § 5 was based
on Congress’s conclusion that maintaining its affirmative obligations "is still vital
to protecting voting rights in the covered jurisdictions." See Sen.Rep. 97-417 at
186-92 (discussing Congress’s decision to extend § 5 but not to make it
nationwide because of its "extensive Congressional findings of voting discrimina
tion" in covered jurisdictions).

Beer, which created a majority-minority district where none had
existed before, was "an ameliorative new legislative apportionment
[which] cannot violate section 5 unless the new apportionment so
discriminates on the basis of race or color as to violate the
Constitution." The "ameliorative" aspect of the Beer reapportion
ment consisted in the fact that it involved deliberate, race-con
scious redistricting for the purpose of1 creating a majority-minority
district and thus "enhanc[ing] the position of racial minorities."
Id. at 141. See App. in Beer v. United States, O.T. 1975, No. 73-
1869, at 341-42 (district lines intentionally drawn to attain at least
a 54% black majority in one district).36

This Court’s other § 5 decisions echo Beer's, approval of
race-conscidus ^©districting for the purpose of complying with § 5.
In City o f Richmond v. United States, for example, the Court held
that a city could satisfy § 5’s requirements \Vhere annexations of
new territory decreased the overall percentage of black voters by
adopting a race-conscious post-annexation redistricting plan that
purposefully assured black voters "representation reasonably
equivalent to [their] political strength in the enlarged community."
422 U.S. at 370-71. Accord, City o f Poh Arthur1 v. United States,
459 U.S. 159, 167 (1982) (approving race-conscious redistricting
to insure that the plan "adequately reflected the political strength
of the black minority;" id. at 17fy 175 (Powell, J., dissenting)
(same); U.J.O., 430 U.S. at 159-61 (White, J.); id. at 180
(Stewart, J.); id. at 183 (Burger, C.J., dissenting); City o f
Petersburg v. United States, 354 F. Supp. 1021 (D.D.C. 1972),
aff’d mem., 410 U.S. 962 (1973). See also Upham v. Seamon,

36 "[A]ll eight Justices who participated in [Beer] implicitly accepted the
proposition that a State may revise its reapportionnient plan to comply with § 5
by increasing the percentage of black voters in a particular district until it has
produced a clear majority." U.J.O., 430 U.S. at 160 (White, J.).

456 U.S. 37, 43 (1982) (in devising a congressional reapportion
ment plan after the Attorney General objected to the legislature’s
plan, the district court erred by failing to follow the legislature’s
decision to create a majority-minority district). The state Defen
dants’ research indicates that other courts have uniformly accepted
this understanding of the states’ authority. See, e.g., Texas v.
United States, 802 F. Supp. 481, 486 (D.D.C. 1992); Wilson v.
Eu, 823 P.2d 545, 550-51, 582 (Cal. 1992).

Section 5 requires covered jurisdictions to avoid all
changes in their election laws that have the effect of weakening the
voting strength of voting minorities, and the burden rests on the
jurisdiction to demonstrate that it has done so. Carrying out this
task is impossible in many redistricting situations unless the
jurisdiction takes race into account. This Court therefore has
consistently approved the use of race-conscious measures by
covered jurisdictions to satisfy their obligations under § 5.37 The
Plaintiffs’ argument necessarily asks the Court to repudiate all of
those decisions and, finally, to reject the constitutionality of § 5
itself.38

37 The Senate Report accompanying the 1982 bill extending the Act noted
that covered states possess "plenary power . . . to meet the standards of the Act."
Sen.Rep. 97-417 at 235.

38 The Plaintiffs’ claim that the implication of affirming the District Court
will be to leave voters without a remedy against unconstitutional racial gerryman
dering by state legislatures, Pl.Br. at 76-78, is baseless. This case does not
present the Court with the specter of the Attorney General imposing, and the state
legislature accepting, an unreasonableor outrageous prerequisite for preclearance,
and it is contrary both to the structure of the Voting Rights Act and to principles
of federalism gratuitously to assume that either the federal or the state officials
would act in such a fashion. See Morris v. Gressette, 432 U.S. 491, 506 n.23
(1977). This case involves no allegation that the legislature’s public goal of
complying with § 5 of the Voting Rights Act was a pretext for a different, covert
and unconstitutional purpose, and thus the District Court’s decision in no way

(continued...)

2. The Results Test of Section Two Requires
States to Take Race Into Account in Redistrict
ing in Order to Comply With the Section.

Section 2 of the Act was amended in 1982 to provide that
no voting "standard, practice, or procedure shall be imposed or
applied by any State or political subdivision in a 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 color." 42 U.S.C. §
1973(a).38 39 In Gingles, this Court unanimously interpreted
amended § 2 to prohibit state apportionment plans that dilute the
voting strength of racial minorities by "caus[ing] an inequality in
the opportunities enjoyed by black and white voters to elect their
preferred representatives." 478 U.S. at 47. See id. at 87-88
(O’Connor, J., concurring in the judgment).40

The "results" test of amended § 2 necessarily requires
legislatures and courts attempting to comply with it to take race
into account when redistricting. See Baird v. Consolidated City o f
Indianapolis, 976 F.2d 357, 359-60 (7th Cir. 1992); DeGrandy v.

38(...continued)
compromises the cognizability of claims based on an allegation of invidious intent
in the traditional Davis-Feeney sense. Cf. Quitter v. Voinovich, 794 F. Supp.
695, prob.juri noted, 112 S. Ct. 2299 (1992), where allegations of pretext were
made.

39 The 1982 amendment was a response to this Court’s decision in City o f
Mobile v. Bolden that § 2 was coextensive with the Fifteenth Amendment and that
consequently to show a violation of the section a plaintiff would have to prove
invidious intent. 446 U.S. at 61 (plurality opinion). Congress amended § 2
because, among other reasons, it concluded that the intent requirement "place[d]
an unacceptably difficult burden on plaintiffs." Sen.Rep. 97-417 at 193.

40 While Gingles involved a challenge to multi-member legislative districts,
other cases have upheld the application of the concept of vote dilution to
challenges to the apportionment of single-member districts. See, e.g., Jeffers v.
Clinton, 730 F. Supp. 196 (E.D. Ark. 1989), a ffd mem., I l l S. Ct. 662 (1991).

Wetherell, 794 F. Supp. 1076 (W.D. Fla. 1992), appeal pending
as Wetherell v. DeGrandy, No. 92-519.41 As Justice O’Connor
observed in Gingles, "the way in which district lines are drawn can
have a powerful effect on the likelihood that members of a
geographically and politically cohesive minority group will be able
to elect candidates of their choice." 478 U.S. at 87 (opinion
concurring in the judgment). The use of race-conscious redistrict
ing thus is necessary if states are to be able to obey the mandate
of amended § 2. Where necessary to avoid a situation in which
members of a racial or linguistic minority have "less opportunity
than other members of the electorate . . . to elect representatives
of their choice," 42 U.S.C. § 1973(b), "[t]he deliberate construc
tion of minority controlled districts is exactly what the Voting
Rights Act authorizes." Garza v. County o f Los Angeles, 918 F. 2d
763, 776 (9th Cir. 1990). Numerous courts, therefore, have
approved, ordered or implemented race-conscious apportionments
that create majority-minority districts. See, e.g., Wesch v. Hunt,
785 F. Supp. 1491, 1498-99 (S.D. Ala. 1992), aff’d mem. sub
nom. Camp v. Wesch, 112 S. Ct. 1926 (1992); Baird, 976 F.2d at
359-60; Jeffers, 730 F. Supp. at 217; DeGrandy, 794 F. Supp. at
1085; Wilson v. Eu, 823 P.2d at 549.

The North Carolina General Assembly was obligated, of
course, to draw congressional districts that would not have the
effect of diluting minority voting strength in order to comply with
the mandates of § 2 and § 5. See 28 C.F.R. § 51.55(b)(2) (1992)
(under § 5, Attorney General will deny preclearance to plans
presenting clear violations of § 2). Faced with strong evidence of

41 The legislative history of the 1982 amendment indicates that Congress was
aware of the fact that it was sanctioning majority-minority districts in appropriate
circumstances. See Sen.Rep. 91-All at 208 & n.121 (citing cases in which courts
employed such districts in order to assure minority representation).

the existence of racially polarized voting in the State’s elections,
see Gingles, 478 U.S. at 80, the legislature had no other means of
meeting that obligation. The Plaintiffs’ reinterpretation of the
invidious intent requirement would render all such attempts to
comply with the Act unconstitutional. Since it is scarcely conceiv
able that Congress constitutionally can impose an obligation on the
states that they cannot constitutionally fulfill, Plaintiffs’ argument
is in effect a challenge to the validity of §§ 2 and 5.42

3. Sections Two and Five of the Voting Rights Act
Are Constitutional, and the Plaintiffs’ Challenge
to Their Validity Should Be Rejected.

Sections 2 and 5 both require race-conscious redistricting,
and in appropriate circumstances the creation of majority-minority
districts, on the part of the states. The Plaintiffs’ argument that
the Constitution bars race-conscious redistricting is therefore an
attack on the validity of those two key provisions of the Voting
Rights Act. The constitutionality of that Act has been addressed
on more than one occasion by this Court, and each time the Court
has sustained the Act as an exercise of Congress’s enforcement
powers under the Reconstruction era amendments. See City o f
Rome, South Carolina v. Katzenbach, 383 U.S. 301 (1966).43 It

42 The states’ constitutional power to meet the requirements of the Act is an
unavoidable implication of Congress’spower to enact it. "The government which
has a right to do an act, and has imposed upon it, the duty of performing that act,
must, according to the dictates of reason, be allowed to select the means; and
those who contend that it may not select any appropriate means, that one
particular mode of effecting the object is excepted, take upon themselves the
burden of establishing that exception." McCulloch v. Maryland, 17 U.S. (4
Wheat.) 316, 409-10 (1819).

43 South Carolina and City o f Rome sustained the pre-1982 version of the Act
as an exercise of the enforcement power granted Congress by § 2 of the Fifteenth
Amendment. See, e.g., City o f Rome, 446 U.S. at 177. When Congress

(continued...)

is settled law that Congress possesses the authority under the
Reconstruction era amendments to impose obligations and prohibi
tions on the states in the area of voting rights that go beyond the
Fourteenth and Fifteenth Amendments’ ban on invidiously intended
discrimination. City o f Rome, 446 U.S. at 177. Congress crafted
§§ 2 and 5 of the Voting Rights Act in light of this principle and
of the Constitution’s guarantee to "racial minorities [of] the right
to full participation in the political life of the community."
Washington v. Seattle School District No. 1, 458 U.S. 457, 467
(1982). This Court should reject the Plaintiffs’ request that it
discard its own precedents and overturn the considered constitu
tional judgment of Congress.43 44

43(...continued)
amended the Act in 1982, it did so in part on the basis of a considered legislative
judgment that the amendment properly rested on the enforcement powers granted
Congress by § 5 of the Fourteenth Amendment as well. See Sen.Rep. 91-AM at
217-21. See also Briscoe v. Bell, 432 U.S. 404, 414-15 (1977) (Act rests in part
on Fourteenth Amendment powers). The Act therefore is entitled to the special
deference this Court accords exercises of Congress’s "unique remedial powers .
. . under section 5." Croson, 488 U.S. at 488 (O’Connor, J.). See also id. at
521-23 (Scalia, J., concurring in the judgment); Metro Broadcasting, 110 S. Ct.
at 3008; id. at 3030 (O’Connor, J., dissenting); Katzenbach v. Morgan, 384 U.S.
641 (1966).

44 The 1982 Congress that amended § 2 and extended the entire Act carefully
addressed the question of its constitutional authority to do so. See Sen.Rep. 97-
417 at 217-21, 239-40.

II. THE STATE’S CONGRESSIONAL REDISTRICTING
PLAN IS CONSTITUTIONAL EVEN ON THE AS
SUMPTION THAT THE PLAINTIFFS ADEQUATE
LY HAVE ALLEGED DISCRIMINATORY INTENT
BECAUSE THEY CANNOT ALLEGE DISCRIMINA
TORY EFFECT.

In addition to holding that the Plaintiffs failed to state a
claim because they could not allege invidious intent, the District
Court dismissed the Plaintiffs’ complaint on a second and indepen
dent ground: "Neither have they alleged, nor could plaintiffs
prove, the requisite unconstitutional effect under the facts indisput
ably before us on this motion." J.S. App. at 23a. This holding is
plainly correct. The State’s Plan creates no obstacles to the
Plaintiffs’ full participation in the political process and demon
strably cannot have the effect of "cancelling out" the electoral
strength of white voters statewide.

In the cases originally outlining the elements of a race-
based equal protection claim, this Court held that plaintiffs must
show that "the political processes leading to nomination and
election [are] not equally open to participation by the group in
question — that its members had less opportunity than did other
residents in the district to participate in the political processes and
to elect legislators of their choice." White v. Regester, 412 U.S.
755, 766 (1973). The Court rejected arguments that an unconstitu
tional effect is shown by proving that a racial group is in the
minority in a given district or that its preferred candidates lose
elections: "the mere fact that one interest group or another
concerned with the outcome of [the district’s] elections has found
itself outvoted and without legislative seats of its own provides no
basis for invoking constitutional remedies where . . . there is no
indication that this segment of the population is being denied
access to the political system." Whitcomb v. Chavis, 403 U.S.

124, 154-55 (1971). See also Chapman v. Meier, 420 U.S. 1, 17
(1975) (plaintiffs must allege and prove "lessening or cancellation
of voting strength" of group). The question of discriminatory
effect is not determined by looking at particular "seats in isola
tion," Lockhart v. United States, 460 U.S. 125, 131 (1983) (§ 5
case), but by examining "the overall effect of the apportionment
plan on the opportunity for fair representation of minority voters."
Connor v. Finch, 431 U.S. 407, 427 (1977). In a case involving
a statewide plan, therefore, the question of effect must be an
swered on a statewide basis. Chapman, 420 U.S. at 17; Davis v.
Bandemer, 478 U.S. 109, 132-33 (1986) (plurality opinion).
Recent decisions have adhered to the requirement that a viable
equal protection claim must allege discriminatory effect as well as
invidious intent. Bandemer, 478 U.S. at 119-20, 125-26;45
Turner v. Arkansas, 784 F. Supp. 553, 579 (E.D. Ark. 1991)
(dismissing claim because no showing of discriminatory effect),
aff’d mem., 112 S. Ct. 2296 (1992); Gingles v. Edmisten, 590 F.
Supp. 345, 352 n.8 (E.D.N.C. 1984) ("dilutive effect remains an
essential element of constitutional . . . claims"), aff’d in part and
rev’d in part sub nom. Thornburg v. Gingles, 478 U.S. 30 (1986).

Under these decisions, the District Court’s conclusion that
the Plaintiffs have not made and cannot make the necessary
allegation of discriminatory effect is plainly correct. The Plain
tiffs’ challenge necessarily is to the State’s congressional reappor

45 The Bandemer plurality opinion emphatically reaffirmed "the effects
discussion we adopted earlier." 478 U.S. at 139 n.17. "[W]e have found equal
protection violations only where a history of disproportionate results appeared in
Conjunction with strong indicia of lack of political power and the denial of fair
representation. In those cases, the racial minorities asserting the successful equal
protection claims had been essentially shut out of the political process." Id. at
139. The Plaintiffs’ inability to allege that the racial group to which they belong
has been "shut out" of the State’s political process is fatal to their attempt to state
a race-based equal protection claim.

tionment Plan, and thus the focus for determining discriminatory
effect must be a statewide one. Viewed from that perspective, it
is evident that the Plan does not have the effect of "cancel[ling] out
or minimiz[ing] the voting strength" of the State’s white citizens.
White, 412 U.S. at 765. The creation of two majority-minority
districts (out of twelve) obviously does not "consign" the white
majority "to minority status," Bandemer, 478 U.S. at 125 n.9, and
will not result in the proportional underrepresentation of white
voters on a statewide basis. United Jewish Organizations v.
Carey, 430 U.S. 144, 166 (1977) (White, J.).46 The "mere fact"
that those Plaintiffs who live In a majority-minority district will
find themselves "outvoted," Whitcomb, 403 U.S. at 154, would not
state an unconstitutional effect even if it were more than mere
conjecture. Their suggestion that Congresspersons elected under
the Plan will not provide proper representation for white citizens,
Pl.Br. at 39 n.10, 44-45, is an unacceptable speculation. "We
cannot presume in such a situation, without actual proof to the
contrary, that the candidate elected will entirely ignore the interests
of those voters. This is true even in a safe district where the
losing group loses Election after election." Bandemer, 478 U.S.
at 132 (plurality opinion). This Court may take judicial notice of

46 The Plaintiffs suggest that the fact that there is a rough cbrrespondence
between the number of majority-minority districts under the Plan and the
percentage of African-Americans in North Carolina’s population renders the Plan
suspect or invalid. Pl.Br. at 31-33. While this Court has repeatedly rejected
arguments that racial groups are entitled to proportional representation, e.g.,
White, 412 U.S. at 765-66, it does not of course follow that proportional
representation is unconstitutional. See, e.g., Bandemer, 478 U.S. at 130-31
(Constitution permits but does not require redistricting to produce results
reflecting statewide strength of political groups); City o f Mobile v. Bolden, 446
U.S. 55, 86 n.6 (1980) (Stevens, J., concurring in the judgment). Similarly, the
proviso in § 2 of the Voting Rights Act stating that the section does not create a
right to proportional representation does not mean that the section forbids
proportionality. See, e.g., McGhee v. Granville Co., 860 F.2d 110, 120-21 (4th
Cir. 1988).

the fact that as white voters the Plaintiffs cannot present the
evidence of "historical patterns of exclusion from the political
processes of the State that would support a claim of discriminato
ry effect. Id. at 131 n.12. See also White, 412 U.S. at 766-67;
Rogers v. Lodge, 458 U.S. 613, 625-27 (1982).

The Plaintiffs’ argument, if accepted, leads to a perverse
and illogical result: Plaintiffs, members of the racial group that
constitutes a strong majority in the State’s population, would be
able to state an equal protection claim more easily than members
of racial minorities, who are obligated under this Court’s decisions
to allege and prove that they have "essentially been shut out of the
political process" of the State as a whole. Bandemer, 478 U.S. at
139 (plurality opinion); id. at 151-52 (O’Connor, J., concurring in
the judgment). The Plaintiffs do not explain this consequence, and
they have not attempted to distinguish this Court’s cases establish
ing the effects requirement or, indeed, to discuss those cases at all.
The Plaintiffs have not alleged a racially discriminatory effect, and
on that basis this action should be dismissed.

III. THE STATE’S CONGRESSIONAL REDISTRICTING
PLAN IS CONSTITUTIONAL UNDER THIS
COURT’S CROSON AND METRO BROADCASTING
DECISIONS.

A. T h e Cr o so n T est D oes N o t A pply t o Ra c e -C o n
scio u s Re d istr ic tin g P u r su a n t t o t h e Vo tin g
R ig h ts A c t .

The Plaintiffs argue in the alternative that the State’s Plan
is unconstitutional because it does not meet the requirements of this
Court’s decision in City o f Richmond v. J.A. Croson Co., 488
U.S. 469 (1989), which applied strict scrutiny to invalidate a
municipal public contracting program that provided preferential

treatment for various minority groups. The Plaintiffs have
provided no explanation of why this Court should apply the Croson
test, which the Court has developed to evaluate the constitutionality
of programs that distribute public goods explicitly on the basis of
race, rather than the Court’s many decisions outlining the analysis
to be employed in cases such as this one alleging a racial gerry
mander. Croson and its progeny are not applicable in the present
case because the analyses those decisions establish were designed
to address concerns not present in this context.

In the situations addressed by the affirmative action cases,
this Court has been confronted with the explicit governmental use
of race as the criterion for allocating public goods such as access
to a state medical school, public employment or public contracts.
The decisions display concern over three aspects of such programs:
by making explicit use of race, they can undercut the core purpose
of the Equal Protection Clause itself, Croson, 488 U.S. at 510-11;
they may impose unfair costs on those who are denied public
goods on the basis of race, Wygant v. Jackson Bd. o f Education,
476 U,S. 267, 276 (1986) (plurality opinion); and unless carefully
limited they have no "logical stopping point" short of outright
racial balancing, id. at 275. In contrast, race-conscious redistrict
ing for the purpose of compliance with the Voting Rights Act
furthers the Constitution’s guarantee to "racial minorities [of] the
right to full participation in the political life of the community,"
Washington v. Seattle School District No. 1, 458 U.S. 457, 467
(1982), and does so without denying to any individual the "enjoy
ment of the relevant opportunity — meaningful participation in the

electoral process." Regents o f Univ. o f California v. Bakke, 438
U.S. 265, 305 (1978) (Powell, J.).47

The "opportunity" to be in the racial majority in one’s
congressional district is not, of course, a free-standing public good
to which anyone is entitled under the Constitution, and finding
oneself in the minority is not in itself an injury.48 The Voting
Rights Act and the use of majority-minority districts that Act
sanctions are "a rule hedging against racial discrimination,"
Thornburg v. Gingles, 478 U.S. 30, 83 (1986) (White, J.,
concurring), and they are limited, logically, geographically and
temporally, by the existence of the very factors — the demonstrable
history of official discrimination, and the unfortunate continuance
of racially polarized voting, in covered jurisdictions — that brought
them into existence. Because race-conscious redistricting in such
circumstances does not present the concerns that animate the
Croson line of cases, the opinions of this Court’s members in the
affirmative action cases consistently have treated such redistricting
as outside the scope of the Croson analysis. See Metro Broadcast
ing v. FCC, 497 U.S. 547, ___, 110 S. Ct. 2997, 3019 (1990);
Wygant, 476 U.S. at 291 (O’Connor, J., concurring in the
judgment); Fullilove v. Klutznick, 448 U.S. 448, 524 n.3 (1980)

47 For reasons already discussed, the Plaintiffs’ speculations that representa
tives elected under the Plan will not provide adequate representation for the
Plaintiffs or other white voters are an unacceptable basis for constitutional
adjudication.

48 The Plaintiffs’ descriptions of the Plan as amounting to ''the segregation
of black from white voters," Pl.Br. at 31, and as creating a "racial quota," id. at
45, are simply incorrect. North Carolina’s present congressional districts do not
"segregate" voters by race any more than does any districting plan that creates,
inadvertently or deliberately, districts in which there are local racial majorities
and minorities — which is to say most legislative districts on every level in the
United States. Nor does the Plan impose any sort of "quota" in terms of voters,
candidates or elected representatives.

(Stewart, J., dissenting); Bakke, 438 U.S. at 305 (Powell, J.). Cf.
City o f Rome v. United States, 446 U.S. 156, 212 n.5 (1980)
(Rehnquist, J., dissenting) (states are "empowered to utilize racial
criteria in order to minimize the effects of racial-bloc voting").49

B. T h e St a t e R e d ist r ic t in g P la n Is J u st ifie d B y
t h e C o m p e l l in g G o v e r n m e n t a l In t e r e s t in
C o m p l y in g W ith t h e V o t in g R ig h ts A c t and
Re m e d y in g t h e E f fe c t s o f R a c ia l D isc r im in a
t io n .

Even if the Croson line of decisions properly applied to
race-based challenges to reapportionment plans, the North Carolina
Plan should be deemed constitutional because it is "justified by
[the] compelling governmental interest" of eliminating the effects
of racial discrimination and racially polarized voting in electoral
politics and is "narfowly tailored to the achievement of that goal."
Wygant, 476 U.S. at 274 (omitting citations).50

Many commentators agree that the constitutional issues presented by race
conscious redistricting are fundamentally different from those that exist in the
affirmative action context. See, e.g., D. Currie, The Constitution in the Supreme
Court: Vie Second Century 485 n. 150 (1990); O'Rourke, Vie 1982 Amendments
and the Voting Rights Paradox, in B. Grofman & C. Davidson, Controversies in
Minority Voting 107-08 (1992); Issacharoff, Polarized Voting and the Political
Process: Vie Transformation o f Voting Rights Jurisprudence, 90 Mich. L. Rev.
1833, 1865 (1992) (protection of minority voting strength is directed toward
correction of the political process and is thereby different from "purely outcome-
driven civil rights claims against the distribution of goods and opportunities in
this society ); Posner, Vie Bakke Case and the Future o f "Affirmative Action,"
67 Calif. L. Rev. 171, 178 n.21 (1979) (distinguishing race-conscious redistrict-
ing in V.J.O. as a special case" not addressed by the Court’s general affirmative
action jurisprudence).

Because race-conscious redistricting is required in order to comply with
§§ 2 and 5 of the Voting Rights Act, supra, at 27-34, if the affirmative action
decisions actually applied in this situation, the proper standard of evaluation
would be intermediate level scrutiny, not strict scrutiny. See Metro Broadcasting

(continued...)

This Court repeatedly has recognized that states have a
compelling interest in eradicating racial discrimination and its
effects from public life. See, e.g., Croson, 488 U.S. at 491-93.
Before employing a racial classification, however, a legislature
seeking to pursue that goal must have "a strong basis in evidence
for its conclusion that remedial action was necessary." Id. at 500,
quoting Wygant, 476 U.S. at 277. The legislature, on the other
hand, need not make quasi-judicial findings about the existence of
racial discrimination: what is required is that "the public actor
ha[ve] a firm basis for believing that remedial action is required,"
id. at 286 (O’Connor, J., concurring in the judgment) (summariz
ing the view held by the Court as a whole). In Croson itself, the
Court held that the defendant’s affirmative action program did not
satisfy the compelling-interest strand of strict scrutiny. A compari
son of the deficiencies the Court identified in that program with the
reapportionment Plan challenged in this case demonstrates that the
Plan meets the compelling-interest requirement.

In Croson, this Court ruled unconstitutional a municipal
program requiring the city’s non-minority-owned prime contractors
to subcontract at least 30% of the dollar amount of their construc
tion contracts to one or more "minority business enterprises." 488
U.S. at 477-78. Although the program theoretically permitted
contractors actually unable to fulfill its requirements to request a
waiver, the stated standards for granting a waiver were stringent
and the city administrator’s discretion to deny a waiver was 50

50(.- .continued)
v. FCC, 110 S. Ct. at 3008-09 (intermediate level scrutiny to be used to evaluate
affirmative action programs "approved — indeed, mandated — by Congress"). See
also id. at 3030 (O’Connor, J., dissenting) (Congress "has considerable latitude,
presenting special concerns for judicial review [when it] act[s] respecting the
States" pursuant to § 5 of the Fourteenth Amendment). Because the State’s Plan
meets the more exacting standards of strict scrutiny, it necessarily satisfies the
Metro Broadcasting test.

essentially plenary. Id. at 478-79. The program in effect imposed
"a rigid numerical quota" reserving access to certain public-
contract monies to racial minorities, thus denying them to non
minority contractors. Id. at 508.

Richmond’s asserted compelling interest was the need to
combat racial discrimination in the local construction industry.
However, as the Court pointed out, the city based this need on "a
generalized assertion" about "past discrimination in an entire
industry," id. at 498; "sheer speculation" about the effects of past
discrimination on present minority participation in the industry, id.
at 499; and "the unsupported assumption that white prime contrac
tors simply will not hire minority firms." Id. at 502. "There
[was] nothing approaching a prima facie case of a constitutional or
statutory violation" by the city itself in its administration of public
contracts. Id. at 500. Congress’s finding that there has been
racial discrimination on a nationwide basis in the highway
construction industry did not provide Richmond with the necessary
"evidence that [its] own spending practices are exacerbating a
pattern of prior discrimination" in the local general contracting
market. Id. at 504. Because the city could point to no "identified
discrimination in the Richmond construction industry," it could not
invoke the need to eliminate such discrimination in support of a
racial preference program. Id. at 505.

North Carolina, unhappily, has "sufficient evidence to
justify the conclusion that there has been prior discrimination,"
Wygant, 476 U.S. at 277, in the State’s political processes. The
imposition of the preclearance requirement of § 5 of the Voting
Rights Act is predicated on "extensive Congressional findings of
voting discrimination in the covered jurisdictions," Sen.Rep. 97-
417 at 192, and Congress’s extension of the Voting Rights Act in
1982 reflects its considered judgment that such official discrimina

tion and its effects remain a severe problem in jurisdictions that
fall under the criteria for coverage. Id. at 191. See McCain v.
Lybrand, 465 U.S. 236, 244-45 (1984). The fact that forty North
Carolina counties are covered under § 5 and that they are so
located as to require all statewide redistricting plans to be submit
ted for preclearance provided the legislature with a factual basis
for strong measures to combat the effects of discrimination in the
political process. The Attorney General’s refusal to preclear the
State’s first reapportionment plan bolsters that conclusion. See
Bakke, 438 U.S. at 305 (Powell, J.) (§ 5 objection "properly is
viewed" as "an administrative finding of discrimination").

This Court’s decision in Gingles provided an independent
basis on which the legislature could conclude that it has in fact a
compelling interest in eliminating the effects of racial discrimina
tion in the State’s political processes. In Gingles, this Court
affirmed extensive findings by a three-judge district court that there
has been a lengthy past history of official racial discrimination in
North Carolina’s political system and in the State’s policies
generally and that the present effects of that history have a
significant effect on the ability of African-Americans to participate
equally in the State’s political life. Gingles v. Edmisten, 590 F.
Supp. 345, 359-67 (E.D.N.C. 1984). The district court also found
that "within all the challenged [state legislative] districts racially
polarized voting exists in a persistent and severe degree." Id. at
367. See 478 U.S. at 80 (approving district court’s findings).51

51 The Plaintiffs’ statement that "[n]o court or agency has determined that
racial discrimination has ever occurred in the creation of congressional districts
in North Carolina," Pl.Br. at 19, is factually inaccurate and legally inapposite.
It is legally unnecessary to show that each particular aspect of an electoral system
has had a discriminatory purpose and effect where, as in North Carolina, there
is a history of discrimination ”affect[ing] the exercise of the right to vote in all
elections," Jeffers v. Clinton, 730 F. Supp. 196, 204 (E.D. Ark. 1989), offd

(continued...)

The legislature thus had ample reason to believe that racially
polarized voting in North Carolina elections perpetuates the effects
of past official discrimination and implicates the State through its
electoral system in the operation of private prejudice. See Croson,
488 U.S. at 492-93.

The state Defendants submit that the implications of § 5
coverage and the findings in Gingles provide more than sufficient
reason for the legislature to conclude that it had a "firm basis" on
which to conclude that there has been past discrimination in the
State’s political processes and that the present effects of that
discrimination warrant race-conscious measures. See Wygant, 476
U.S. at 286 (O’Connor, J., concurring in judgment). In addition,
and most simply, the State clearly has a compelling interest in
complying with the Voting Rights Act, an interest that is of course
closely related to its interest in combatting discrimination. "[T]he
State has the power to eradicate racial discrimination and its effects
in both the public and private sectors, and the absolute duty to do
so where those wrongs were caused intentionally by the State
itself." Croson, 488 U.S. at 518 (Kennedy, J., concurring in part
and concurring in the judgment). Accord, id. at 491-93, 509-10
(O’Connor, J.). It is evident on the face of the Plaintiffs’
complaint that the Plan is justified by a compelling governmental
interest. 51

51(...continued)
mem., I l l S. Ct. 662 (1991). In any event, the district court in Gingles
explicitly made findings about racial discrimination affecting the State’s
congressional elections. See 590 F. Supp. at 359-60, 364-65. The Plaintiffs, it
should be noted, invoke African-American electoral success in non-congressional
elections in their attempt to deny the continued existence of the effects of racial
discrimination in the State’s politics. Pl.Br. at 43, 59. In contrast, no African-
American member of Congress was elected in North Carolina in this century until
the 1992 election.

C. T h e St a t e ’s Re d ist r ic t in g P la n Is N arrow ly
T a ilo r ed t o t h e St a t e ’s G o a l o f C o m ply in g
w ith t h e V o t in g R ig h ts A c t a nd Re m e d y in g
t h e E f fe c t s o f Ra c ia l D is c r im in a t io n .

Governmental programs subject to heightened scrutiny
must also be appropriately tailored to the accomplishment of the
goal the legislature is attempting to pursue. The Court’s decisions
reveal two major concerns in its review of the fit between means
and end under this test. The Court questions, first, whether the
program’s use of race is overly broad or unnecessarily rigid. See
Wygant, 476 U.S. at 276. In Croson, for example, this Court
examined the city program’s use of a rigid 30% quota and
concluded that the choice of the figure was unrelated "to any goal,
except perhaps outright racial balancing." 488 U.S. at 507. The
Court also noted that the rigidity of the program, which made "the
color of applicant’s skin the sole relevant consideration," was
unjustified given the existence of "an individualized procedure" for
considering bids and waivers. Id. at 508.52 "Under Richmond’s
scheme, a successful black, Hispanic, or Oriental entrepreneur
from anywhere in the country enjoys an absolute preference over
other citizens based solely on their race. We think it obvious that
such a program is not narrowly tailored to remedy the effects of
prior discrimination." Id.

The legislature’s creation of majority-minority districts, in
contrast, is related precisely and directly to its goals. Faced with
the existence of racially polarized voting, and with the Attorney

52 The Court’s opinion observed that the city did not consider "the use of
race-neutral means to increase minority business participation in city contracting."
488 U.S. at 507. In the context of a reapportionment plan subject to preclearance
under § 5 of the Voting Rights Act, there were no "race-neutral" measures the
legislature realistically could consider.

General’s refusal to preclear a reapportionment plan containing
only one majority-minority district, the legislature crafted a plan
with two such districts, the number, location and shape of which
were dictated by the number and residences of African-American
North Carolinians. As many commentators have observed,
majority-minority redistricting is the only effective means of
overcoming the effects of racially polarized voting. See, e.g ., B.
Grofman, L. Handley, and Richard G. Niemi, Minority Represen
tation and the Quest for Voting Equality 129-37 (1992); A.
Thernstrom, Whose Votes Count? 238-39 (1987).53 The creation
of majority-minority districts, furthermore, is a self-limiting
remedy. If the racially polarized voting the effects of which the
legislature is addressing diminish or disappear, then the "injury"
Plaintiffs allege (their inability to elect candidates of their choice
because of race) necessarily will disappear as well.54

The requirement of narrow tailoring also serves to
minimize the harm that affirmative action programs impose on
non-minority third parties who are denied public goods on the
basis of race. Croson, 488 U.S. at 510; id. at 515-16 (Stevens, J.,
concurring in part); Local 28, Sheet Metal Workers v. EEOC, 478
U.S. 421, 486 (1986) (Powell, J., concurring) (impact on third

53 Professor Thernstrom, who is a distinguished and vigorous critic of race
conscious redistricting in most circumstances, has observed that ”[t]here is no
doubt that where ‘racial politics . . . dominates the electoral process’ and public
office is largely reserved for whites, the method of voting should be restructured
to promote minority officeholding. Safe black or Hispanic single-member
districts hold white racism in check, limiting its influence." Thernstrom at 238-
39. Where such conditions exist, majority-minority redistricting is a precise
response to the problem. Cf. Croson, 488 U.S. at 519 (Kennedy, J., concurring
in part) (strict scrutiny requires examination of "the precision with which [the
affirmative action program] bore on whatever injury in fact was addressed").

54 The reapportionment Plan under review in this case is, of course, limited
in an even simpler fashion by the fact that it will be in effect only for a decade.

parties is a factor "of primary importance"). See also Metro
Broadcasting, 110 S. Ct. at 3026 (under intermediate level
scrutiny, Court will find the required "substantial relationship" to
an important governmental interest only if the program "does not
impose undue burdens on nonminorities"). Opinions applying the
narrow-tailoring requirement consequently have looked to the
severity of the harm done third parties, Wygant, 476 U.S. at 280-
84 (Powell, J.); id. at 294-95 (White, J., concurring in the
judgment); id. at 318-19 (Stevens, J., dissenting), and to the
degree to which their "settled expectations" are infringed or
denied. Id. at 283 (Powell, J.).

The State’s reapportionment Plan is narrowly tailored so
as to avoid unnecessary harm to nonminority voters. The Plan
imposes no racial quota and places no obstacle in the way of
Plaintiffs’ full participation in the political process. Bakke, 438
U.S. at 305 (Powell, J.). The Plaintiffs remain completely free to
express their political views, to support candidates of their choice,
and to seek public office. The fact that as a consequence of the
Plan two of the Plaintiffs find themselves in the racial minority in
their congressional district is no more a cognizable injury than is
the fact that non-white voters are in the minority in ten of the
State’s congressional districts. The Plaintiffs have suffered no
constitutional injury, and their speculations about the future course
of congressional elections or the possible inadequacy of their
representation in the future provide no basis on which to conclude
that their legitimate expectations have been overturned. See
Thernstrom at 242 (white voters whose candidates "could win . .
. in a differently constituted district" are not even arguably denied
"a right" by majority-minority redistricting).

The Plaintiffs have offered no alternative means by which
the General Assembly could have pursued effectively its compel

ling interest in complying with the Voting Rights Act and combat
ting the effects of racial discrimination in the State’s political
processes. In light of the close fit between that goal and the
State’s creation of two majority-minority districts, it is clear on the
face of the complaint that the Plaintiffs cannot carry the burden of
demonstrating that the State’s Plan is not adequately tailored to
serve the State’s compelling interests.

CONCLUSION

The Court should affirm the judgment entered in the cause
by the three-judge United States District Court for the Eastern
District of North Carolina.

Respectfully submitted,

MICHAEL F. EASLEY
North Carolina Attorney General

H. Jefferson Powell*
Special Counsel to the Attorney General

Edwin M. Speas, Jr.
Senior Deputy Attorney General

Norma S. Harrell
Special Deputy Attorney General

Tiare B. Smiley
Special Deputy Attorney General

North Carolina Department of Justice
Post Office Box 629
Raleigh, North Carolina 27602-0629
(919) 733-3786

February 24, 1993 *Counsel of Record

APPENDIX

CONTENTS OF APPENDIX

AMENDMENT XIV, § § 1 , 2 ................................................. la

AMENDMENT XV ................................................................. la

42 U.S.C. § 1973 ...................................................................... 3a

42 U.S.C. § 1 9 7 3 c ................................................................... 5a

28 CFR Part 51
§51.51 ......................................................................... 7a
§51.52 ......................................................................... 7a
§51.54 ......................................................................... 8a
§51.55 ......................................................................... 8a

December 18, 1991 Letter from John R. D u n n e ............... 11a

Analysis of North Carolina Congressional
Districts by Total Population................................... 19a

Analysis of North Carolina Congressional
Districts for Total Population by Race ................ 21a

Analysis of North Carolina Congressional
Districts for Voting Age Population by Race . . . . 23a

This page intentionally left blank.

AMENDMENT XIV.

§ 1. All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of the United
States and of the state wherein they reside. No state shall make or
enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any state deprive any
person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal protection
of the laws.

§ 5. The congress shall have power to enforce, by
appropriate legislation, the provisions of this article.

AMENDMENT XV.

§ 1. The right of citizens of the United States to vote shall
not be denied or abridged by the United States or by any state on
account of race, color, or previous condition of servitude.

§ 2. The congress shall have power to enforce this article
by appropriate legislation.

This page intentionally left blank.

42 USC § 1973

§ 1973. Denial or abridgement of right to vote on account of
race or color through voting qualifications or prerequisites;
establishment of violation

(a) No voting qualification or prerequisite to voting or standard,
practice, or procedure shall be imposed or applied by any State or
political subdivision in a 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 color, or in contravention of the guarantees
set forth in section 4(f)(2), as provided in subsection (b).

(b) A violation of subsection (a) is established if, based on the
totality of circumstances, it is shown that the political processes
leading to nomination or election in the State or political subdivi
sion are not equally open to participation by members of a class of
citizens protected by subsection (a) in that its members have less
opportunity than other members of the electorate to participate in
the political process and to elect representatives of their choice.
The extent to which members of a protected class have been
elected to office in the State or political subdivision is one
circumstance which may be considered: Provided, That nothing
in this section establishes a right to have members of a protected
class elected in numbers equal to their proportion in the popula
tion.

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42 USC § 1973c

§ 1973c. Alteration of voting qualifications and procedures;
action by State or political subdivision for declaratory judg
ment of no denial or abridgement of voting rights; three-judge
district court; appeal to Supreme Court

Whenever a State or political subdivision with respect to which the
prohibitions set forth in section 4(a) based upon determinations
made under the first sentence of section 4(b) are in effect shall
enact or seek to administer any voting qualification or prerequisite
to voting, or standard, practice, or procedure with respect to
voting different from that in force or effect on November 1, 1964,
or whenever a State or political subdivision with respect to which
the prohibitions set forth in section 4(a) based upon determinations
made under the second sentence of section 4(b) are in effect shall
enact or seek to administer any voting qualification or prerequisite
to voting, or standard, practice, or procedure with respect to
voting different from that in force or effect on November 1, 1968,
or whenever a State or political subdivision with respect to which
the prohibitions set forth in section 4(a) based upon determinations
made under the third sentence of section 4(b) are in effect shall
enact or seek to administer any voting qualification or prerequisite
to voting, or standard, practice, or procedure with respect to
voting different from that in force or effect on November 1, 1972,
such State or subdivision may institute an action in the United
States District Court for the District of Columbia for a declaratory
judgment that such qualification prerequisite, standard, practice, or
procedure does not have the purpose and will not have the effect
of denying or abridging the right to vote on account of race or
color, or in contravention of the guarantees set forth in section
4(f)(2), and unless and until the court enters such judgment no
person shall be denied the right to vote for failure to comply with

such qualification, prerequisite, standard, practice, or procedure:
Provided, That such qualification, prerequisite, standard, practice,
or procedure may be enforced without such proceeding if the
qualification, prerequisite, standard, practice, or procedure has
been submitted by the chief legal officer or other appropriate
official of such State or subdivision to the Attorney General and
the Attorney General has not interposed an objection within sixty
days after such submission, or upon good cause shown, to facilitate
an expedited approval within sixty days after such submission, the
Attorney General has affirmatively indicated that such objection
will not be made. Neither an affirmative indication by the
Attorney General that no objection will be made, nor the Attorney
General’s failure to object, nor a declaratory judgment entered
under this section shall bar a subsequent action to enjoin enforce
ment of such qualification, prerequisite, standard, practice, or
procedure. In the event the Attorney General affirmatively
indicates that no objection will be made within the sixty-day period
following receipt of a submission, the Attorney General may
reserve the right to reexamine the submission if additional
information comes to his attention during the remainder of the
sixty-day period which would otherwise require objection in
accordance with this section. Any action under this section shall
be heard and determined by a court of three judges in accordance
with the provisions of section 2284 of title 28 of the United States
Code and any appeal shall lie to the Supreme Court.

28 CFR Part 51

§ 51.51 Purpose of this subpart.

The purpose of this subpart is to inform submitting
authorities and other interested parties of the factors that the
Attorney General considers relevant and of the standards by which
the Attorney General will be guided in making substantive
determinations under Section 5 and in defending Section 5
declaratory judgment actions.

§ 51.52 Basic standard.

(a) Surrogate for the court. Section 5 provides for
submission of a voting change to the Attorney General as an
alternative to the seeking of a declaratory judgment from the U.S.
District Court for the District of Columbia. Therefore, the
Attorney General shall make the same determination that would be
made by the court in an action for a declaratory judgment under
Section 5: Whether the submitted change has the purpose or will
have the effect of denying or abridging the right to vote on account
of race, color, or membership in a language minority group. The
burden of proof is on a submitting authority when it submits a
change to the Attorney General for preclearance, as it would be if
the proposed change were the subject of a declaratory judgment
action in the U.S. District Court for the District of Columbia. See
South Carolina v. Katzenbach, 383 U.S. 301, 328, 335 (1966).

(b) No objection. If the Attorney General determines that
the submitted change does not have the prohibited purpose or
effect, no objection shall be interposed to the change.

(c) Objection. An objection shall be interposed to a
submitted change if the Attorney General is unable to determine
that the change is free of discriminatory purpose and effect. This

includes those situations where the evidence as to the purpose or
effect of the change is conflicting and the Attorney General is
unable to determine that the change is free of discriminatory
purpose and effect.

§ 51.54 Discriminatory effect.

(a) Retrogression. A change affecting voting is considered
to have a discriminatory effect under Section 5 if it will lead to a
retrogression in the position of members of a racial or language
minority group (i.e., will make members of such a group worse
off than they had been before the change) with respect to their
opportunity to exercise the electoral franchise effectively. See
Beer v. United States, 425 U.S. 130, 140-42 (1976).

§ 51.55 Consistency with constitutional and statutory require
ments.

(a) Consideration in general. In making a determination
the Attorney General will consider whether the change is free of
discriminatory purpose and retrogressive effect in light of, and
with particular attention being given to, the requirements of the
14th, 15th, and 24th amendments to the Constitution, 42 U.S.C.
1971(a) and (b), Sections 2, 4(a), 4(f)(2), 4(f)(4), 201, 203(c), and
208 of the Act, and other constitutional and statutory provisions
designed to safeguard the right to vote from denial or abridgment
on account of race, color, or membership in a language minority
group.

(b) Section 2. (1) Preclearance under Section 5 of a voting
change will not preclude any legal action under Section 2 by the
Attorney General if implementation of the change subsequently
demonstrates that such action is appropriate. (2) In those instances

in which the Attorney General concludes that, as proposed, the
submitted change is free of discriminatory purpose and retrogres
sive effect, but also concludes that a bar to implementation of the
change is necessary to prevent a clear violation of amended Section
2, the Attorney General shall withhold Section 5 preclearance.

10a

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11a

U.S. Department of Justice

Civil Rights Division

/ Office o f the Assistant Attorney General Washington, D.C. 20035

Tiare B. Smiley, Esq.
Special Deputy Attorney General DEC 18 1991
P.O. Box 629
Raleigh, North Carolina 27602-0629

Dear Ms. Smiley:

This refers to Chapter 675 (1991), which provides for the
1991 redistricting and a change in the method of election from 42
single-member districts and 30 multimember districts to 75 single
member districts and 20 multimember districts for the House of
Representatives; Chapter 676 (1991), which provides for the 1991
redistricting plan and a change in the method of election from 22
single-member districts and 28 multimember districts to 34 single
member districts and 8 multimember districts for the Senate; and
Chapter 601 and Chapter 761 (1991), which provide for the
increase from eleven to twelve congressional districts and the 1991
redistricting plan for the congressional districts for the State of
North Carolina, submitted to the Attorney General pursuant to
Section 5 of the Voting Rights Act of 1965, as amended, 42
U.S.C. 1973c. We received your response to our request for more
information on November 5, 1991; supplemental information was
received on November 18, 20, 21, 25, 26 and 27, and December
4, 10, 12 and 13, 1991.

We have carefully considered the information you have
provided, as well as Census data and information and comments

12a

from other interested persons. At the outset, we note that 40 of
North Carolina’s 100 counties are covered under the special
provisions of Section 5 of the Voting Rights Act. As it applies to
the redistricting process, the Voting Rights Act requires the
Attorney General to determine whether the submitting authority has
sustained its burden of showing that each of the legislative choices
made under a proposed plan is free of racially discriminatory
purpose or retrogressive effect and that the submitted plan will not
result in a clear violation of Section 2 of the Act. In the case of
statewide redistricting such as the instant ones, this examination
requires us not only to review the overall impact of the plan on
minority voters, but also to understand the reasons for and the
impact of each of the legislative choices that were made in arriving
at a particular plan.

In making these judgments, we apply the legal rules and
precedents established by the federal courts and our published
administrative guidelines. See, e.g., 28 C.F.R. 51.52(a), 51.55,
51.56. For example, we cannot preclear those portions of a plan
where the legislature has deferred to the interests of incumbents
while refusing to accommodate the community of interest shared
by insular minorities, see, e.g., Garza v. Los Angeles County. 918
F.2d 763, 771 (9th Cir. 1990), cert, denied. I l l S. Ct. 681
(1991); Ketchum v. Byrne. 740 F.2d 1398, 1408-09 (7th Cir.
1984), cert, denied. 471 U.S. 1135 (1985), or where the proposed
plan, given the demographics and racial concentrations in the
jurisdiction, does not fairly reflect minority voting strength.
Thornburg v. Gingles, 478 U.S. 30 (1986); Hastert v. State Board
of Elections. ___F. Supp. ____ (N.D. 111., Nov. 6, 1991), 1991
WL 228185; Wilkes County, Georgia v. United States. 450 F.
Supp. 1171, 1176 (D.D.C. 1978), affd. mem.. 439 U.S. 999
(1978).

13a

Such concerns are frequently related to the unnecessary
fragmentation of minority communities or the needless packing of
minority constituents into a minimal number of districts in which
they can expect to elect candidates of their choice. See 28 C.F.R.
51.59. We endeavor to evaluate these issues in the context of the
demographic changes which compelled the particular jurisdiction’s
need to redistrict and the options available to the legislature.
Finally, our entire review is guided by the principle that the Act
ensures fair election opportunities and does not require that any
jurisdiction guarantee minority voters racial or ethnic proportional
results.

With this background in mind, our analysis shows that, in
large part, the North Carolina House, Senate and Congressional
redistricting plans meet the Section 5 preclearance requirements.
Each plan, however, has particular problems which raise various
concerns for us under the Voting Rights Act. We describe each of
these problem areas separately below.

Respecting the House plan, the proposed configuration of
district boundary lines in the following three areas of the state
appear to minimize black voting strength: the Southeast area,
involving Sampson, Pender, Bladen, Duplin, New Hanover,
Wayne, Lenoir and Jones Counties; the Northeast area in which
the state proposes to create District 8; and Guilford County.

In general, it appears that in each of these areas the state
does not propose to give effect to overall black voting strength,
even though it seems that boundary lines logically could be drawn
to recognize black population concentrations in each area in a
manner that would more effectively provide to black voters an
equal opportunity to participate in the political process and to elect
candidates of their choice. Another factor which appears to
adversely impact on minority voting strength, by limiting the

14a

number of majority minority districts, was the state’s decision to
manipulate black concentrations in a way calculated to protect
white incumbents.

In the Southeast area of the state, the state was aware of
the significant interest on the part of the black community in
creating districts in which they would constitute a majority. In
fact, alternatives providing for two additional black majority
districts were presented to the legislature. Rather than using this
approach to recognize black voting strength, however, the
proposed plan submerges concentrations of black voters in several
multimember, white majority districts. Our own analysis suggests
that a number of different boundary line configurations may be
possible which more fairly recognize black population concentra
tions and provide minority voters an opportunity to elect candidates
of their choice in at least one additional district.

In the Northeastern portion of the state, District 8 seems
to have been drawn in such a way as to limit unnecessarily the
potential for black voters to elect representatives of their choice.
In spite of the 58 percent black population majority, serious
concerns have been raised as to whether black voters in this district
will have an equal opportunity to elect their preferred candidate,
particularly given the fact that only 52 percent of the registered
voters in the district are black. Our analysis indicates that a
number of different options are available to draw District 8 in a
manner which provides blacks an equal opportunity to participate
in the electoral process (e.g., including in District 8 black
concentrations in adjoining districts).

Similarly, in Guilford County, the proposed plan fails to
recognize black population concentrations, although reasonable
configurations of boundary lines would permit an additional district
that would provide black voters the opportunity to elect their

15a

candidates of choice. While we have noted the state’s assertion
that the division of the black community in Guilford County into
several districts enhances black voting strength by providing black
voters an opportunity to influence elections in additional districts,
it appears that the plan in fact was designed to ensure the re-
election of white incumbents. This conclusion is bolstered by what
appears to be similarly motivated decisions of the legislature
involving other areas of the state, such as in Mecklenburg County.
There, the state drew two minority House districts, while the
minority population appears to be sufficiently concentrated to allow
for the drawing of three districts in which black voters would have
an opportunity to elect candidates of their choice. While we are
aware that Mecklenburg is not a county subject to the preclearance
requirements of Section 5, information regarding the choices of
boundary line changes in the county is relevant to our review of
the concern that purposeful choices were made throughout the
redistricting processes that adversely impact minority voting
strength.

Respecting the Senate redistricting plan, the state has
proposed district boundary lines in the southeast region of the state
that appear to minimize black voting strength, given the particular
demography of this area. Although boundary lines logically could
be drawn to recognize black population concentrations in a manner
that would more effectively provide to black voters an equal
opportunity to participate in the political process and to elect a
candidate of their choice, the proposed districts seem to be the
result of the state’s decision to use concentrations of black voters
in white majority districts to protect white incumbents. Black
citizens from this area testified that they felt a black majority
single-member district could be fairly drawn, and alternatives
providing for a black majority district were presented to the
legislature. It appears, however, that concentrations of black

16a

voters have been submerged in several white majority districts.
Our own analysis suggests that a number of different boundary line
configurations may be possible which more fairly recognize black
population concentrations and provide minority voters an opportu
nity to elect candidates of their choice in at least one additional
district.

Respecting the congressional redistricting plan, we note
that North Carolina has gained one additional congressional seat
because of an increase in the state’s population. The proposed
congressional plan contains one majority black congressional
district drawn in the northeast region of the state. The unusually
convoluted shape of that district does not appear to have been
necessary to create a majority black district and, indeed, at least
one alternative configuration was available that would have been
more compact. Nonetheless, we have concluded that the irregular
configuration of that district did not have the purpose or effect of
minimizing minority voting strength in that region.

As in the House and Senate plans, however, the proposed
configuration of the district boundary lines in the south-central to
southeastern part of the state appear to minimize minority voting
strength given the significant minority population in this area of the
state. In general, it appears that the state chose not to give effect
to black and Native American voting strength in this area, even
though it seems that boundary lines that were no more irregular
than found elsewhere in the proposed plan could have been drawn
to recognize such minority concentration in this part of the state.
Jeffers v. Clinton. 730 F.Supp. 196, 207 (E.D. Ark. 1989),
affirmed. I l l S. Ct. 662 (1991).

We also note that the state was well aware of the signifi
cant interest on the part of the minority community in creating a
second majority-minority congressional district in North Carolina.

17a

For the south-central to southeast area, there were several plans
drawn providing for a second majority-minority congressional
district, including at least one alternative presented to the legisla
ture. No alternative plan providing for a second majority-minority
congressional district was presented by the state to the public for
comment. Nonetheless, significant support for such an alternative
has been expressed by the National Association for the Advance
ment of Colored People (NAACP) and the American Civil
Liberties Union (ACLU). These alternatives, and other variations
identified in our analysis, appear to provide the minority communi
ty with an opportunity to elect a second member of congress of
their choice to office, but, despite this fact, such configuration for
a second majority-minority congressional district was dismissed for
what appears to be pretextual reasons. Indeed, some commenters
have alleged that the state’s decision to place the concentrations of
minority voters in the southern part of the state into white majority
districts attempts to ensure the election of white incumbents while
minimizing minority electoral strength. Such submergence will
have the expected result of "minimiz[ing] or cancel ping] out the
voting strength of [black and Native American minority voters]."
Fortson v. Dorsey. 379 U.S. 433, 439 (1965). Although invited
to do so, the state has yet to provide convincing evidence to the
contrary.

In light of the considerations discussed above, I cannot
conclude, as I must under the Voting Rights Act, that the state’s
burden has been sustained in this instance with respect to the three
proposed plans under review. Therefore, on behalf of the
Attorney General, I must object to the 1991 redistricting for the
North Carolina State House, Senate and Congressional plans to the
extent that each incorporates the proposed configurations for the
areas discussed above.

18a

We note that under Section 5 you have the right to seek a
declaratory judgment from the United States District Court for the
District of Columbia that the proposed 1991 House, Senate and
Congressional redistricting plans have neither the purpose nor will
have the effect of denying or abridging the right to vote on account
of race or color. In addition, you may request that the Attorney
General reconsider the objections. However, until the objections
are withdrawn or a judgment from the District of Columbia Court
is obtained, the 1991 redistrictings for the North Carolina House,
Senate and Congressional plans continue to be legally unenforce
able. Clark v. Roemer, 59 U.S.L.W. 4583 (U.S. June 3, 1991);
28 C.F.R. 51.10 and 51.45.

To enable us to meet our responsibility to enforce the
Voting Rights Act, please inform us of the action the State of
North Carolina plans to take concerning these matters. If you have
any questions, you should call Richard Jerome (202-514-8696), an
attorney in the Voting Section.

Sincerely,

John R. Dunne
Assistant Attorney General
Civil Rights Division

ANALYSIS OF NORTH CAROLINA CONGRESSIONAL DISTRICTS BY TOTAL POPULATION

District Name Number
Members

Total Population Ideal Population District
Variance

% District Variance

District 1 1 552,386 552,386 0 0.00%
District 2 1 552,386 552,386 0 0.00%
District 3 1 552,387 552,386 1 0.00%
District 4 1 552,387 552,386 1 0.00%
District 5 1 552,386 552,386 0 0.00%
District 6 1 552,386 552,386 0 0.00%
District 7 1 552,386 552,386 0 0.00%
District 8 1 552,387 552,386 1 0.00%
District 9 1 552,387 552,386 1 0.00%
District 10 1 552,386 552,386 0 0.00%
District 11 1 552,387 552,386 1 0.00%
District 12 1 552,386 552,386 0 0.00%
Total 12 6,628,637 6,628,632 0 0.00%

Source: 1990 Census of Population and Housing P.L. 94-171

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Analysis of North Carolina Congressional Districts for Total Population by Race

District
Name

Total
Pop.

Total
White

Total
Black

Total
Am. Ind.

Total
Asian/PI

Total
Other

District 1 552,386
100.00%

229,829
41.61%

316,290
57.26%

3,424
0.62%

1,146
0.21 %

1,698
0.31%

District 2 552,386
100.00%

421,083
76.23%

121,212
21.94%

3,154
0.57%

4,077
0.74%

2,860
0.52%

District 3 552,387
100.00%

423,398
76.65%

118,640
21.48%

2,436
0.44%

4,044
0.73%

3,869
0.70%

District 4 552,387
100.00%

426,361
77.19%

111,168
20.13%

1,548
0.28%

10,602
1.92%

2,714
0.49%

District 5 552,386
100.00%

463,183
83.85%

83,824
15.17%

1,083
0.20%

2,448
0.44%

1,848
0.33%

District 6 552,386
100.00%

504,465
91.32%

41,329
7.48%

1,973
0.36%

3,489
0.63%

1,129
0.20%

(continued)

District 7 552,386
100.00%

394,855
71.48%

103,428
18.72%

40,166
7.27%

5,835
1.06%

8,102
1.47%

District 8 552,387
100.00%

402,406
72.85%

128,417
23.25%

13,789
2.50%

4,232
0.77%

3,543
0.64%

District 9 552,387
100.00%

492,424
89.14%

49,308
8.93%

1,729
0.31%

7,373
1.33%

1,553
0.28%

District 10 552,386
100.00%

517,542
93.69%

30,155
5.46%

942
0.17%

2,238
0.41%

1,510
0.27%

District 11 552,387
100.00%

502,058
90.89%

39,767
7.20%

7,835
1.42%

1,791
0.32%

936
0.17%

District 12 552,386
100.00%

230,888
41.80%

312,791
56.63%

2,077
0.38%

4,891
0.89%

1,739
0.31%

Total 6,628,637
100.00%

5,008,492
75.56%

1,456,329
21.97%

80,156
1.21%

52,166
0.79%

31,501
0.48%

Source: 1990 Census of Population and Housing P.L. 94-171

Analysis of North Carolina Congressional Districts for Voting Age Population by Race

District Total Total Total
Name Pop. White Black

District 1 399,969
100.00%

181,933
45.49%

213,602
53.40%

District 2 420,087
100.00%

328,676
78.24%

84,311
20.07%

District 3 413,263
100.00%

324,808
78.60%

81,170
19.64%

District 4 428,984
100.00%

336,850
78.52%

81,210
18.93%

District 5 428,782
100.00%

364,886
85.10%

60,204
14.04%

District 6 428,096
100.00%

393,271
91.87%

30,188
7.05%

Total
Am. Ind.

Total
Asian/PI

Total
Other

2,428
0.61%

844
0 . 2 1 %

1 , 1 1 0

0.28%

2,173
0.52%

3,074
0.73%

1,963
0.47%

1,755
0.42%

2,922
0.71%

2,608
0.63%

K>
P

1,239
0.29%

7,782
1.81%

1,903
0.44%

822
0.19%

1,650
0.38%

1 , 2 2 1

0.28%

1,433
0.33%

2,407
0.56%

798
0.19%

(continued)

District 7 414,413
100.00%

306,754
74.02%

71,071
17.15%

26,489
6.39%

4,201
1.01%

5,898
1.42%

District 8 403,678
100.00%

305,366
75.65%

84,386
20.90%

8,699
2.15%

2,956
0.73%

2,271
0.56%

District 9 421,615
100.00%

380,364
90.22%

33,849
8.03%

1,275
0.30%

5,059
1.20%

1,069
0.25%

District 10 421,456
100.00%

397,476
94.31%

20,837
4.94%

700
0.17%

1,409
0.33%

1,036
0.25%

District 11 430,457
100.00%

396,064
92.01%

27,438
6.37%

5,126
1.19%

1,237
0.29%

592
0.14%

District 12 411,687
100.00%

186,115
45.21%

219,610
53.34%

1,529
0.37%

3,283
0.80%

1,150
0.28%

Total 5,022,487
100.00%

3,902,563
77.70%

1,007,876
20.07%

53,668
1.07%

36,824
0.73%

21,619
0.43%

Source: 1990 Census of Population and Housing P.L. 94-171

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