Alyeska Pipeline Service v Wilderness Society Brief Amicus Curiae

    . m A

IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

RALEIGH DIVISION 
No. 92—202-CIV-5-BR

RUTH O. SHAW, et al., )

Plaintiffs, )
)

and )
)

JAMES ARTHUR 'ART' POPE, et al.. )
)

Plaintiff-Intervenors, )
)

v. )
)

JAMES B. HUNT, JR., et al. , )
)Defendants, )
)and )
)

RALPH GINGLES, et al., )
)

Defendant-Intervenors, )
_______________________________________  )

GINGLES' INTERVENORS PRETRIAL BRIEF

I. INTRODUCTION

A . THE BURDEN OK PROOF THAT CHAPTER 7 TS AN U NCON SI ’I TUT IONAL 
GERRYMANDER IS ON THE PLAINTIFFSV\\

B. THE PLAINTIFFS HAVE FAILED TO PROVE THEY HAVE STANDING TO 
BRING THIS ACTION

(1) Plaintiffs Must Adduce Evidence Proving That 
They Were Injured By Chapter 7____________

The Supreme Court decision in this case held only that one 

aspect of the complaint stated a claim under the Equal Protection 

Clause. The Court's decision necessarily does not resolve any of



the factual issues that would ordinarily be addressed at trial. 

One of those essential factual issues, in this as in any other 

case, is whether the plaintiffs were injured by Chapter 7 in a 

manner that creates standing to challenge that state districting 
plan.

Article III requires that any plaintiff establish standing 

prior to obtaining a judicial decision on the merits of his or her 

claim. A long line of Supreme Court decisions establish that a 

party seeking to invoke a federal court's jurisdiction must 

demonstrate three things: (1) "injury in fact," injury that is 

both "(a) concrete and particularized , and (b) actual or imminent, 

not conjectural or hypothetical," Lujan v Defenders o f  W ildlife, 119 L. Ed.

2d 351), ---- (1992); (2) a causal connection between that injury

and the challenged conduct, Simon v Eastern Kentucky Welfare Rights Orig., 42 6

U.S. 26, 41-42 (1976); and (3) a likelihood that the proven injury 

will be redressed by a favorable decision. Allen v Wright, 468 U.S.

737, 752 (1984). These elements are the "irreducible minimum."

Valley Forge Christian College v. Americans United for Separation o f  Church and State, Inc.,
454 U.S. 464, 472 (1968).

These requirements apply with particular force where the party 

claiming standing asks the court to decide the constitutionality of 

a state law. The Supreme Court has repeatedly admonished that the 

lower courts should not pass on such substantive constitutional 

issues when another basis exists for resolving a lawsuit. 

[CITATION], a determination of the merits of a constitutional 

question is manifestly unnecessary in a case where the party



seeking resolution of that question lacks standing to sue.

A plaintiff cannot establish standing through mere

allegations; rather, a plaintiff^ demonstrate with probative

evidence each of the circumstances necessary for standing.

The party invoking federal jurisdiction bears the burden 
of establishing these elements .... Since they are not 
mere pleading requirements but rather an indispensable 
part of the plaintiff's case, each element must be 
supported in the same way as any other matter on which 
the plaintiff bears the burden of proof, i.e. with the 
manner and degree of evidence required at the successive
stages of the litigation......  [T]hose facts .... must
be "supported adequately by the evidence adduced at trial

# If

Lugan v Defenders o f  Wildlife, 119 L. Ed. 2d at ____  (emphasis added).

In the instant case the plaintiffs contend that the challenged 

districting plan was enacted in furtherance of an allegedly 

unconstitutional purpose. But this _cgurt has jurisdiction to 

decide that difficult and far reaching constitutional question if, 

and only if, Chapter 7 has in fact injured the plaintiffs in a 

concrete and particularize^ way. Plaintiffs bear the burden of 

demonstrating by a preponderance of the evidence that they have in 
fact sustained such an injury.

The Supreme Court's 1993 decision in Shaw v. Reno indicated that
the plaintiffs in a case such as this must establish that they were 

injured in one or the other of two ways. First, plaintiffs may

establish standing by proving that an alleged racial gerrymander in 

fact caused the officials elected from the district in question to 

"represent a particular racial group" of which the plaintiffs were 

not members, "rather than their constituency as a whole." Shaw v

3



R en o, __ L.Ed.2d at ___1. Second, plaintiffs can establish standing
by proving that alleged racial gerrymander had the effect of 

"exacerbat[ing] patterns of racial bloc voting" by a racial 

group of which the plaintiffs were not members L.Ed.2d at .2

The burden on plaintiffs in this case is to demonstrate that they 

were in fact injured in one or both of those ways.

The court's assessment of this question is necessarily guided 

by the Supreme Court's decision in Davis v. Bandem er, 478 U.S. 109

(1986). The plaintiffs in Davis alleged that an Indiana districting
plan had been enacted for the unconstitutional purpose of creating 

a large number of predominantly Republican districts in which 

Republican candidates would be assured of victory. The Supreme 

Court, without reaching the guestion of whether such a motive had 

been established, held that the plaintiffs in Davis had failed to
prove that the districting plan in question had had a

discriminatory effect on them or anyone else. The burden on the

plaintiffs claiming the existence of an unconstitutional

gerrymander, the Court held, is:

to prove both intentional discrimination 
against an identifiable .... group and an 
actual discriminatory effect on that group.

478 U.S. at 127. Davis

1 See also id . at ___ (whether "elected officials .... believe
that their primary obligation is to represent only the members of 
[a racial] group, rather than their constituency as whole").

See also id . at ____ (plan "may balkanize [voters] into
competing racial factions").

4



.//. proof that the challenged legislative 
plan has had or will have effects that are 
sufficiently serious to require intervention 
by the federal courts in state reapportionment 
decisions.

478 U.S. at 134. The Supreme Court concluded in Davis that it was
not yet possible to demonstrate that the challenged plan had any 

such discriminatory effect, since that plan had been used in only 

a single election at the time when the case was tried. The Court 

stressed that it would often be impossible to discern any 

cognizable harm on the basis of " single election," 478 U.S. at 

135, particularly since any apparent impact might prove to be 

merely "transitory." 478 U.S. at 140.

Although the plaintiffs in Davis failed in their challenge to 
the Indiana districting plan at issue, the Supreme Court's decision 

did not render that plan immune from subsequent attack. Rather, 

Davis held that the challenge in that case, filed shortly after the 

enactment of the challenged plan, was simply premature; on the 

basis of the results of a single election the plaintiffs could not 

establish that they were injured by any discriminatory effect. The 

decision in Davis left open the possibility that a subsequent

successful action might be filed if experience with a series of 

elections demonstrated that the challenged plan had indeed injured 

a later group of plaintiffs.

The disposition in Davis appropriate

disposition of the instant case. Here, as in D avis, the plaintiffs



challenge the districting plan at issue after only a single 

election. Here, as in D avis, the plaintiffs are unable to

demonstrate that the challenged plan caused any harm; the instant 
plaintiffs do not even claim to have any evidence regarding the 

specific effects of Chapter 7. Under these circumstances, as in 

D avis, there is as yet no need to determine whether the districting
plan was the product of an unconstitutional motive. Rather, in the 

absence of any evidence that Chapter 7 has yet injured plaintiffs, 

a failure of proof virtually unavoidable after only a single 

election, the complaint should be dismissed for lack of standing. 

The plaintiffs, as in D avis, would remain free to renew their attack

on Chapter 7 if, on the basis of experience with a series of 

elections, they are able, as required by L u ja n , to adduce evidence 

demonstrating that Chapter 7 had caused them concrete injury.

(2) The Plaintiffs Have Failed to Establish That 
Chapter 7 Led To The Election of A Congressman 
Who Represented Only Blacks, Rather Than His 
Constituency As A Whole________________________

In the instant case the Supreme Court held that a white

plaintiff could establish actual harm if he or she proved that the

intentional creation of a "bizarre" majority-minority district

resulted in the election by blacks of a Congressman who believed

his "primary obligations is to represent only the members of that

group, rather than [his] constituency as a whole." Shaw v R en o , ____

L.Ed.2d ___, (1993) [III (B), one paragraph from the end].

6



The mere fact that the 1992 election was won by a black

candidate with black support is, of course, insufficient to meet

this burden. The Supreme Court has forbidden the lower courts to

assume, absent concrete evidence, that particular elected officials

will persistently represent only a portion of their constituents.

[T]he power to influence the political process 
is not limited to winning elections. An 
individual who votes for a losing candidate is 
usually deemed to be adeguately represented by 
the winning candidate and to have as much 
opportunity to influence that candidate as 
other voters in the district. We cannot 
presume in such a situation, without actual 
proof to the contrary, that the candidate 
elected will entirely ignore the interest of 
those voters .... [W]ithout specific 
supporting evidence, a court cannot presume 
.... that those who are elected will disregard 
the ... underrepresented group.

Davis v Bandem er, 478 U.S. 109, 132 (1986) (Emphasis added). The

presumption of good faith representation cannot be overcome by the 

results of "a single election," 478 U.S. at 135, 139, 141, but

requires proof that elected officials "consistently" ignored the 

interest of a group of voters. 478 U.S. at 132. See also id . at

133 ("continued") , 140 (not a mere "transitory" effect) , 143

("consistently"). Findings of non-representation have been 

grounded on a substantial evidentiary showing of a lack of 

representation over an extended period of time. White v. Register, 412

U.S. 755, 767 (1£73) [How many year period?].

The memberjkof Congress at issue in this case, Representative 

Mel W a t t / has won only a single election, and has served in office 
only siiyce January 1993. *-£Aai.ntif fs do not purport to have actual

aJ 6m QM*™,



evidence that Congressman Watt has chosen to represent only black 

voters, or to ignore the interests of his white constituents. On 

the contrary, plaintiffs Shaw and Shim expressly acknowledge that 

since his election neither have ever expressed to Congressman Watt 

any requests or views regarding public policy.3 These two 

plaintiffs are obviously more likely than most constituents to have 

some influence on their Congressman. Both Shaw and Shimm knew Watt 

personally before he was in Congress, both have a history of 

activity in Watt's party, 4and both actually voted for Watt in the 

1992 elections.5 Davis rejected any assumption that an elected

official will ignore the interests of members of the opposition 

party who voted against him; surely such an assumption makes even 

less sense in the case of members of the official's own party who 
supported him.

Rather than adduce the evidence required by the Supreme Court

—  that the Congressman in this case was hostile to the interests
of whites because of the shape of his district —  plaintiffs ask

the court to adopt precisely the sort of presumption forbidden by

Davis. Plaintiffs argue that whites are certain to be injured

whenever they are placed in any majority - black district with a

black representative. Plaintiffs assert:

[W]e contend that an African - American 
congress person in any majority-minority

3 Shaw deposition, p. ____; Shimm deposition, p. _____

4 Shaw deposition, p. _____ ; Shimm deposition, p. _____ .

5 Shaw deposition, p. _____ ; Shimm deposition, p. _____ .

8



district will be induced, consciously or 
unconsciously, to represent their white 
constituents less effectively and with less 
concern that their black constituents6

Plaintiffs contention is even more sweeping than the assumption

rejected in Davis; plaintiffs ask the court to presume without proof
that all black officials from majority black districts will be 

indifferent or hostile to the interests of whites, regardless of 

the shape of their districts, and regardless of whether their 

districts may have been drawn for completely non-racial reasons. 

Davis makes clear that such unsubstantiated assumptions cannot be
relied on to meet a plaintiff's responsibility to adduce actual 
evidence of injury.

Davis teaches that, insofar as plaintiffs seek to ground their

claim of harm on proof that Congressman Watt ignores the interests 

of whites, their suit is premature. Plaintiffs base their claim on 

the outcome of a single election, a tactic specifically rejected by 

D avis. Regardless of how the current incumbent acts, it is too soon

to conclude that Chapter 7 has denied whites effective political 

representation. If any congressman representing the 12th district 

ignores the interests of whites or any other group, he or she may 

as a result be defeated at the polls by a candidate who prudently 

chooses to appeal to black and white voters alike. Such a career 

ending mistake would demonstrate only the foolishness of the 

former-congressman, not any harm rooted in an unfair political

6 Plaintiffs' Responses to Defendants' Third Set of Written
Interrogatories, p. 11 (emphasis added).

9



process. Only if a black official persisted over several elections 

in ignoring with impunity the interests of white constituents could 

it be said that the districting itself had caused that problem. No 

such showing is made, or possible, today, barely a year and a half 

after the first election under Chapter 7.

(3) Plaintiffs Have Failed to Establish That 
Chapter 7 Has Injured Them By Increasing 
Racial Bloc Voting________________________

The Supreme Court decision recognized the possibility that a 

districting plan might be so extraordinary as to injure a plaintiff 

by increasing racial bloc voting on the part of a racial group to 

which he or she did not belong. The plaintiffs appear to assert 

that they were harmed in this manner; they have utterly failed, 
however, to prove their assertion.

Defendant-Intervenors' First interrogatories asked plaintiffs

to "[s]tate in detail the basis of your claim that Chapter 7 ...

has injured ... plaintiffs ..." Plaintiffs responded:

Our claim is that Chapter 7 creates a racial 
gerrymander, as evidenced by the bizarre 
shapes of districts and the concentration of 
black enclaves in both the First and Twelfth 
Districts and also by the legislative history 
which led up to its enactment. The use of 
racial classifications in this way —  which 
reinforces racial stereotypes and tends to 
balkanize population along racial lines —  
produces racial divisions....7

This assertion was not accompanied by any evidence that Chapter 7 

or any other districting plan had in fact increased racial bloc

7 Plaintiffs' Response to Defendant-Intervenors' First Set of
Written Interrogatories, p. 1; see also id. at 6.

10



voting.

The Supreme Court has repeatedly asserted that the existence 

of racial bloc voting in a particular state or locality cannot be 

assumed, but must be demonstrated through the introduction of 

probative and persuasive evidence. Shaw v R en o , ____  L.Ed. 2d ,

____  (1993) [part IV, second paragraph]; Growe v E m iso n, ____  L.Ed.

2d ____ , _____  (1993) [?]; Voinovich v. Quilter, ___ L.Ed., 2d ____,

(1993) . In this case, however, plaintiffs have offered no such 

evidence. Plaintiffs reversing the position they took in the 

Supreme Court,8 now acknowledge that racial bloc voting by both 

blacks and whites existed to a substantial degree even before the 

enactment of Chapter 7.9 To meet their burden under the Supreme 

Court's 1993 decision, plaintiffs would have to offer evidence that 

Chapter 7 has increased the level of bloc voting. Plaintiffs have 

not adduced and do not claim to have any such evidence.

The lack of such evidence at this juncture, although 

potentially fatal to plaintiffs' ability to establish standing, is 

hardly surprising. Proof of racial bloc voting is invariably based 

on evidence of the results in a series of elections over a number 

of years. In Thornburgh v. Gingles. U.S. (198<£>) , for/

example, the plaintiffs introduced detailed evidence regarding the 

voting behavior of blacks and whites in _____  elections over the

8 Shaw v R en o, ____  L.Ed. 2d ____ , ____  (1993) [part IV,
paragraph 7].

Plaintiffs' Responses to Defendants' Third Set of
Interrogatories, pp. 2, 15.

11



course of years 10 In any single election similar voting
patterns by members of any particular group may be a coincidence 

that might not be repeated over time.

In the instant case the burden on plaintiffs was to 

demonstrate that Chapter 7 had increased the level of bloc voting. 

The instant lawsuit, however, was filed in (month). 1992, before 
any elections had been held under Chapter 7. Rather than await 

substantial actual experience with Chapter 7, plaintiffs 

unsuccessfully sought a preliminary injunction before any elections 

had been held under that plan, and now proceed to trial, at a point 

in time when it is virtually inconceivable that the results of the 

fall 1992 elections alone could by themselves reveal what impact, 

if any, Chapter 7 has had on racial bloc voting.

Plaintiffs do not, rely on any actual evidence that Chapter 7
{ ®has had any impact on voting patterns in North Carolina. They 

simply invite the^court to presume the truth of a universal and 

sweeping assumption —  that all majority-minority districts cause 

increased bloc voting if their shapes are "bizarre." Plaintiffs 

offer neither evidence for this proposition nor an explanation of 

how a court could distinguish bloc-voting causing "bizarre" 

districts from non-harmful districts which are merely odd, peculiar 

or strange. These are precisely the type of presumptions rejected 

by Voinovich and its progeny.

There may come a point in time at which there is sufficient

[Insert here a footnote with other reported cases, noting
for each the number of elections and number of years]

12



experience to determine whether Chapter 7 has had the effect of 

increasing or decreasing bloc voting, or, quite conceivably, had no 

effect at all. The unavoidable absence at this juncture of 
evidence regarding theJ

actual impact of Chapter 7 is equally compatible with the 

possibility that the election of a black Member of Congress from 

the 12th district will, at least over time, reduce the incidence of 

bloc voting, thus actually benefitting rather than harming 

plaintiffs. Familiarity with a black Congressman may well soften 

resistance on the part of white voters to black candidates and 

decrease the importance of race for black voters. Should actual 

elections instead reveal that Chapter 7 has increased bloc voting 

and injured plaintiffs, they are free to seek judicial redress. At 

this point in time, however, the record does not and could not 

demonstrate that Chapter 7 has had any effect at all on bloc voting 

and the plaintiffs therefore cannot base their standing on any such 
possible impact.

(4) Plaintiffs Present Only A Generalized Grievance

This lawsuit does not arise out of any particularized harm to 

the plaintiffs. The original and amended complaints, although 

containing repeated and specific allegations of a constitutional 

violation, make no reference to any injury specific to the 

plaintiffs. [Dayna - same true of plaintiff intervenors' 

complaint?]. The plaintiffs commenced and are pursuing this 

action, not because of any such injury, but simply because they 

wish to advance their personal constitutional theory regarding the

13



1992 districting. As one of the plaintiffs explained, when asked 

how the suit began, "we . . . felt that this was an objectionable

district on constitutional grounds and we thought we would strike 
a blow for what we thought was a righteous cause."11

The Supreme Court has repeatedly held that a plaintiff may not

ordinarily invoke the jurisdiction of the federal courts "when the

asserted harm is a 'generalized grievance' shared in substantially

equal measure by all or a large class of citizens. . . . "  Warth v.

Seldin, 422 U-S. 490, 499 (1975)12. That is precisely, indeed

deliberately, the gravaman of the plaintiffs' claim. The only

reference in the complaint to standing alleges the 1980 districting

abridged the rights of the plaintiffs and all 
other citizens and registered voters of North 
Carolina. . . . Any registered voter. . . .
has standing to object. . . ,13

In their interrogatory responses, plaintiffs make the paradoxical

assertion that the districting plan "discriminates" against every
voter in the state: ^

Plaintiffs claim that call North Carolina 
voters . . . were discriminated against.
Plaintiffs contend . . . that the State's
[districting plan] discriminates against all 
voters, of whatever race. The current 
redistricting pla[n]. . . discriminates
against plaintiffs and all other voters in

Deposition of Melvin Shimm, Oct. 27, 1993, p. 40; see
also id. at 55.

12 That standing limitation is reiterated in Schlesinoer v. 
Reservists to Stop the War. 418 U.S. 208 (1974); United States v. 
Richardson. 418 U.S. 166 (1974); and Ex Parte Levitt. 302 U.S. 633, 
634 (1937).

13 Complaint, pp 12-13 (emphasis added).

14



North Carolina.14

This peculiar assertion highlights the fatal failure of proof in 

this case. A discriminatory districting plan is a scheme —  such 

as that in Baker v. Carr or Gomellion v. Lightfoot —  which place^ 

one group of voters at a disadvantage compared to the remaining 

voters. It makes no sense to assert that a districting plan] 
imposes such a comparative disadvantage on all voters in a state.

The 1993 Supreme Court decision in this case, although holding 

that the instant complaint pleaded in one respect a cause of 

action, did not determine that the plaintiffs herein would be able 

to prove that the 1992 districting plan —  whatever its structure 

and underlying purpose —  had injured them or anyone else. Davis 

v. Bandemer admonished that it often would not be apparent until 

after several elections whether a districting plan —  even if the 

product of an impermissible motive —  had any discriminatory 

effect. At this point in time only a single election has been held 

under the 1992 districting plan; the first member of Congress 

elected from the disputed twelfth district took office just fifteen 

months ago. With such limited practical experience under the 

statute in question, it is not surprising that the plaintiffs have 

failed to establish any injury in fact, or that they made no effort 

to do so. The plaintiffs remain free to renew their challenge to 

the 1992 districting if a series of subsequent elections should 

reveal the types of injury held cognizable by the Supreme Court

Plaintiffs' Responses to Defendant-Intervenors' First Set
of Written Interrogatories, p. 21 (emphasis added).

15



decision in Shaw v. Reno. At this juncture, however, plaintiffs 
have made no such showing, and their complaint must therefore be 

dismissed for lack of standing.

II. CHAPTER 7 IS NOT A RACIAL GERRYMANDER
A. The Applicable Standard

None of the parties in this case dispute that when it enacted 
Chapter 7, the state set out to create two majority African 

American congressional districts. The sole question raised here by 

the facts is whether race was the only| factor driving Chapter 7 

such that all other state interests were ignored. The State and 

the Gingles Intervenors assert that the plan properly was enacted, 
among other things, to give voice to communities and regions of 

interest within the state, to create two majority African American 

districts to comply with the Voting Rights Act and other broad 

remedial principles, and to protect the state's interest in the 

seniority of its congressional delegation— incumbency protection. 

The plaintiffs and plaintiff-intervenors15, misapplying governing 

equal protection standards, argue that as long as a "racial 

discriminatory intent was a 'motivating factor' for the 

legislation,"16 Chapter 7 must fail constitutional muster. For 

the reasons stated below, it is plaintiffs' and plaintiff 

intervenors' argument that must fail.

15brief discussion re: frequently changing position of
plaintiff intervenors re: permissibility of racial considerations 
in districting process.

16Plaintiffs' Brief in Response to Brief of the United States 
in Opposition to Plaintiff-Intervenors' Motion for a Preliminary 
Injunction at 13 ("Plaintiffs' Response").

16



The Supreme Court has never held that the use of racial 

considerations in drawing legislative lines is per se

unconstitutional. To the contrary, the Court consistently has 

reaffirmed that race consciousness is inevitable, and as a tool to 

remedy past exclusion, is a permissible factor in the redistricting 

process. See Shaw v. Reno, 125 L. Ed. 2d 511, 525 (1993); Voinovich v.

Quilter, 113 S. Ct. 1149, 1156, (1993); Metro Broadcasting v. Federal

Communications Commission, 497 U.S. ___, ____  ill L. ed. 2d 445, 473

(1990); Thornburg v. Gingles, 478 U.S. 30 (1986); United Jewish Organizations 

v. Carey, 430 U.S. 149 (1977). In Shaw , the Supreme Court drew a

clear distinction between redistricting and other forms of state 

decision-making, noting that "the legislature always is aware of 

race when it draws district lines. . . . However, it made clear 
that "that sort of race consciousness does not lead inevitably to 
impermissible race discrimination."

As the Supreme Court has acknowledged, virtually none of the 

consequences of redistricting are unknown or unintended. Davis v. 

Bandem er, 478 U.S. 109, 129 (1986). Those who draw congressional 

and legislative lines constantly must weigh and reconcile a vast 

number of "competing claims of political, religious, ethnic, 

racial, occupational and socioeconomic groups." Id ., at 147

(O'Connor, J. dissenting). In drawing the lines legislators decide 

which of several groups will constitute the district majority, and 

thus control the district. In so doing, they make decisions about 

which incumbents will be protected, which political parties will be

17



advantaged, which political groups will be given a voice, and which 

communities will be advantaged by being preserved whole. Karcher v. 

Daggett, 462 U.S. 725 (1983); Gaffney v. Cum m ings, 412 U.S. 735 (1973).

In Bandem er, a political gerrymandering challenge, the Court

painstakingly examined the legislative motivations common in the 

redistricting process. It acknowledged that even if a "politically 

mindless" approach were used in the drawing of district lines, "it 

is most unlikely that the political impact of such a plan would 

remain undiscovered by the time it was proposed and adopted, in 

which event the results would be both known, and, if not changed, 

intended." I d ., at 129 (citing Gaffney v. Cummings, 412 U.S. 735 

(1973) .

Because the outcomes of the districting process inevitably are 

intended, the Bandemer Court found the mere intent to achieve a

particular political result— even where the result was partisan 

disadvantage— insufficient by itself to sustain an equal protection 

claim. 478 U.S. at 131. See also, Mobile v. Bolden, 446 U.S. 55, 91

(1980). This rule recognizes that in order for the redistricting 

process to work, the standard for determining the acceptability of 

political line-drawing decisions "cannot. . . be so strict that any 

evidence of a purpose to disadvantage a bloc of voters will justify 

a finding of 'invidious discrimination': otherwise, the facts of 

political life would deny legislatures the right to perform the 

districting function." Mobile v. Bolden, 446 U.S. 55, 91

18



(1980) (Blackmun, J. , concurring) . See also, Cousins v. City Council o f  the City 

o f  Chicago, 466 F. 2d 847, 856 (7th Cir. 1972) (Stevens

dissenting)(strict intent test reguiring legislators to act with 

indifference to the impact of redistricting on cognizable groups 

either will lead to "invalidation of all apportionment plans or 

require legislators to perform ridiculous charades in their public 

deliberations and to do their only significant work in private 
conference.")

Just as "politics and political considerations are inseparable 

from districting and apportionment," id ., at 128, so are race and

racial considerations. U.J.O. v. Carey, 430 U.S. at 176 (Brennan, J. , 

concurring); Beer v. United States, 425 U.S. 130, 144 (1976) (White, J. ,

dissenting)(Bloc voting by race is "well-known to those responsible 

for drawing electoral district lines. These lawmakers are quite 

aware that the districts they create will have a white or a black 

majority; and with each new district comes the unavoidable choice 

as to the racial composition of the district"); see Rogers v. Lodge, 458

U.S. 613 (1982)(Stevens, J., dissenting)(Noting close link between 

race and politics and rejecting notion that "any electoral decision 

that is influenced by racial consciousness as opposed to other 

forms of political consciousness is inherently irrational");

Modern census data is full of racial information that when 

manipulated by computer technology, makes it possible quickly to 

analyze the political and racial impact of each possible 

districting choice in considerable detail. Even if racial

19



considerations are not explicit in the districting process, the 

level of residential segregation, Wright v. Rockefeller, 376 U.S. 52

(1964), the persistence of racial bloc voting17 and degree of 

connection between partisanship and race, see, e.g. Whitcomb v. Chavis, 403
U.S. 124 (1971); Deposition of Jack Hawke at 33-34 (admitting that 

ballot security program targetting of precincts that were most 

heavily Democratic also targetted precincts that were most heavily 

African American), create two obvious proxies for racial interests 

that legislators are unlikely to ignore. C f, Alexander v. Louisiana, 405 

U.S. 625 (1972); Castaneda v. Partida, 430 U.S. 482 (1977) (presence of

data showing race or national origin sufficient to infer that 
information taken into account).

The critical difference, acknowledged by the Supreme Court in 

Shaw , between districting, with its inherent race consciousness,

and any other form of state action, compels rejection of a rigid 

rule outlawing any district plan in which "race is a motivating 

factor." Such a rule, which wholly ignores political reality, 

would be unobservable and even if it could be complied with, would

17See Thornburg v. Gingles, 478 U.S. 30 (1986); Beer v.. United States, 425
U.S. ____ , at 144 (White, J, dissenting); see also, Gom ez v. City o f
Watsonville, 863 F. 2d 1407, 1417 (9th Cir. 1988); Citizens for a Better Gretna 
v. City o f  Gretna, 834 F. 2d 496 (5th Cir. 1987); cert, denied, 492 U.S. 905 
(1989); Ewing v. Monroe County, 740 F. Supp. 417, 421 (N.D. Miss. 
1990); Jeffers v. C linton, 730 F. Supp. 196, 198 (E.D. Ark. 1989); aff’d . 
Ill S.Ct. 662 (1991); Brown v. Board o f  Commissioners o f  Chattanooga, 722 F. 
Supp. 380, 393 (E.D. Tenn. 1989) ; McDaniels v. M ehfound, 702 F. Supp. 
588, 593 (E.D.Va. 1988); Martin v. A lla in , 658 F. Supp. 1183, 1193-94
(S.D. Miss. 1987); M cN eil v. City o f  Springfield, 658 F. Supp. 1015, 1028 
(C.D. 111. 1987).

20



threaten to disrupt virtually every/congressional and legislative 
redistricting plan in the counti

Indeed, in th^tj-vidwi(Jg' shows LlicH! a "race-blind"

CThrule would be unobservable. £The expert analysis of demographer and 

political analyst Dr. James O'Reilly reveals that race- 

consciousness is an inevitable part of North Carolina's

reapportionment processes. Dr. O'Reilly characterizes the 

"baseline logic" of the dominant players in the State's 

reapportionment process— white Democrats as follows:

A) Too few Blacks in a district and a White Republican 
is likely to defeat White Democrat.

B) More than too few but less than too many Blacks 
means the White Democrat is more likely to defeat 
the White Republican.

C) Too many Blacks in the district and a Black 
Democrat is likely to defeat a White Democrat in 
the primary.

Report of James O'Reilly ("O'Reilly") at 2. He concludes that 

white Democrats seek to maximize the number of "A" districts and 

Republicans support "C" districts in order to enhance the prospects 

for Republican victory. Id. Thus, for example, in 1980, ". . . a

central factor in the design of virtually every redistricting map 

for Piedmont and Eastern North Carolina was how to distribute the 

Black vote in a way that favored one political strategy or 
another." O'Reilly at 2.

While acknowledging the inherent race-consciousness of the 

redistricting process, the Court in Shaw also reaffirmed the well-
established principle that a state may deliberately draw majority

21



minority districts in order to ensure fair minority representation 

in the face of racially polarized voting. Id ., at 535 (citing U.J.O. 

u Carey, 430 U.S. at 167-168). Earlier last term, the Court 

confirmed that this important remedial principal applied to single­

member as well as multimember district schemes. Voinovich v. Quilter, 113

S. Ct. 1149; Emison v. Grow e, 113 S. Ct. 1075, 1084. (1993).

These pronouncements demonstrated the continuing vitality of 

U J O 's holding that "neither the fourteenth nor fifteenth amendment 
mandates any p erse rule against using racial factors in districting 
and apportionment." 430 U.S. at 161. Indeed, the Supreme Court's 

approval in Voinovich and Emison v. Growe of using race-conscious

districting schemes to overcome racially polarized voting makes 

clear that "the permissible use of racial criteria is not confined 

to eliminating the effects of past discriminatory districting or 

apportionment." 430 U.S. at 161.

The basis of the Supreme Court's conclusion that plaintiffs 

could make out a claim of illegal racial gerrymandering was not 

that Chapter 7 involved race consciousness. The Supreme Court was 

well aware of the racial considerations that impacted Chapter 7 

when it ruled in this case. Id ., at 52 0-521. Yet, not only did it

fail to invalidate Chapter 7 as p erse unconstitutional, it remanded

the case back to this Court to determine whether an equal 

protection violation had occurred. Id ., at 53 6, and made clear that 
the plaintiffs retained the burden to show that the North Carolina

22



Rather, the Court defined a racial gerrymander as the 

intentional segregation of voters and nothing else. It repeatedly 

emphasized that a redistricting plan would violate equal protection 

principles only if it were unexplainable on grounds other than 

race." Id ., at 526 (internal citation omitted). See also, id., at 528

(in some "exceptional cases, reapportionment may be so highly 

irregular that, on its face, it cannot be understood as anything 

other than an effort to segregate voters on the basis of race." 

(internal citations omitted); id ., at 530 (redistricting

legislation, "though race neutral on its face, rationally cannot be 

understood as anything other than an effort to separate voters into 

different districts on the basis of race," may violate egual 

protection); id ., at 531 (referring to unsuccessful UJO plaintiffs
who failed to allege that "the plan on its face was so highly 

irregular that it rationally could be understood only as an effort 

to segregate voters by race); id ., at 532 (characterizing

plaintiffs' claim as one asserting that apportionment plan is "so 

irrational on its face that it immediately offends principles of 

racial equality"); id ., at 536 (plaintiffs' state a claim under

equal protection when they allege that the reapportionment scheme 

is "so irrational on its face that it can be understood only as an 

effort to segregate voters into separate voting districts because 

of their race, and that the separation lacks sufficient

General Assembly had engaged in impermissible racial
gerrymandering. Id., at 53 6.

23



plan that "includes in one district individuals who belong to the 

same race, but who are otherwise widely separated by geographical 
and political boundaries, and who have little in common with one 

another but the color of their skin"). By its analysis, unless a 

plan is "so extremely irregular on its face that it rationally can 

be viewed only as an effort to segregate the races for the purposes 

of voting without regard for traditional districting principles and 

without sufficiently compelling justification," 125 L. Ed. 2d at 
525, it will survive constitutional scrutiny.

In short, the critical inquiry in this case is whether race 

was the only factor driving the creation of Chapter 7 such that all 

other state interests were disregarded to promote race 

consciousness. The test for equal protection violations set out in 

City o f  Arlington Heights v. Metroplitan Housing Development Corp., 429 U.S. 252

(1977), on which the plaintiffs' and plaintiff-intervenors' in this 

case rely, does not answer this question.

In the context of the Shaw case, Arlington Heights stands for a

simple and obvious proposition: a statute, such as Chapter 7, that 

is race-neutral on its face may be challenged under the Equal 

Protection clause. The Supreme Court's invocation of Arlington Heights

to state this general principle does not mean, however, that the 

test for determining when an unconstitutional racial gerrymander 

has occurred is governed by the standards set out in that case.

In Arlington Heights, the plaintiffs challenged a municipal

justification"); id ., at 529 (defining as a racial gerrymander a

24



ordinance that while apparently neutral, indisputably had disparate 

racial impact. In those circumstances, the Supreme Court developed 

detailed indicia of racial animus in otherwise facially neutral 

legislative conduct. It engaged in a meticulous examination of the 

disparate weight of the burdens imposed by the ordinance, [cite], 
circumstances surrounding the enactment, [cite], the procedures 

followed in enacting the ordinance, [cite], and the legislative 

history [cite] to determine whether racial considerations were 

implicated in the challenged provision.

Such an inquiry is inappropriate to determine whether racial 

considerations were involved in the enactment of Chapter 7. The 

challenged legislative conduct was not required to be, admittedly 

was not and could not be, free of racial considerations. The 

factors elaborated in Arlington Heights are thus irrelevant and

immaterial to the central question in this case— whether racial 

considerations were the sole motivating factor in the creation of 

Chapter 7. The Supreme Court's acknowledgement in Shaw of the

unique inevitability and permissibility of race-consciousness in 

redistricting counsels that redistricting must not be treated in 

the same way as other forms of state decision-making.

A closer analogy to the use of racial considerations in the 

redistricting context is the use of racial criteria in higher 

education admissions programs as analyzed in Regents of the State 

University of California v. Bakke. 438 U.S. 265 (1978). In B a k ke, 
the Supreme Court resolved that race appropriately may be used as 

"one element in a range of factors" considered in attaining the

25



goal of a heterogeneous admissions program. Id.., at 314. The

Court's reasoning in Bakke was grounded in its conclusion that "the 
interest in diversity is compelling in the context of a university 

admissions program." I d ., at 314.

While expressly disavowing the use of race as a sole criterion 

in the admissions process, 438 U.S. at 315, the Court made clear 

that a constitutionally sound program could consider flexibly "all 

elements of diversity in light of the particular qualifications of 

each applicant, and to place them on the same footing for 

consideration, although not necessarily according them the same 

weight. " I d ., at 317. And the Court embraced admissions programs

such as the one at Harvard College that consciously sought to 

assemble a widely varied student body using race as one of many 

criteria. Id.

The admissions process in B akke, involving a balancing of a

wide range of factors and interests in an effort to achieve broad 
diversity and representation of a variety of groups within a 

university community is far more closely akin to the legislative 

process of redistricting than is the passage of a municipal zoning 

ordinance. Perhaps even more so than in a university community, 

the legislature in redistricting must be concerned about diversity 

and representatitveness in the governing body. See Metro Broadcasting, Inc. 

v. Federal Communications Com m ission, [slip op. at 33] (1990) (recognizing

that in the voting context, minorities have "particular viewpoints 

and interests worth protecting"). Indeed, the very purpose of

26



redistricting is to ensure representation of varying interests, 

Reynolds v. Sim s, 377 U.S. 533, 565-566, and "to produce a more

politically fair result than would be reached with elections at 

large, in which the winning party would take 100% of the seats." 

Gaffney v. Cum m ings, 412 U.S. 735 (1973)

[add something re: more latitude for remedial use of race in 
redistricting context because of fundamental rights, history of 
exclusion and disfranchisement, etc.]

The legislative need to consider a host of factors in the 

districting process and to give appropriate weight to each in the 

scheme of representation is best served by a rule that permits 

consideration of race among the factors. A contrary rule would 

significantly burden state decision making and state efforts fairly 

to allocate political influence among competing interests by 

allowing consideration of every other possible interest and concern 
within the districting process except race.

North Carolina also was empowered to create majority minority 

districts in response to racially polarized voting and to remedy 

past electoral exclusion. Although the equal protection clause 

requires "some showing of prior discrimination by the governmental 

unit involved," City o f  Richmond v. Croson, 102 L. Ed. 2d 854, 881

(1989) (citing Wygant v. Jackson Board o f  Education, 476 U.S. 267, 274

(1986)(O'Connor, J., concurring)), the state need not show 

"contemporaneous findings of actual discrimination" to prove the 

legitimacy of its remedial plan. Nor was it required to "prove the

27



invalidity of its own apportionment scheme" before creating 

majority minority districts. Voinovich v. Quilter, 113 S. Ct. at 1156.

The State need only have had "a firm basis for believing that 

remedial action was necessary." I d . , at 286.

As will be demonstrated below, the state's history of 

litigation and administrative review under sections 2 and 5 of the 

Voting Rights Act alone provide a sufficient basis for the General 

Assembly to conclude that there was a need for remediation. In 

addition, the legislative record of Chapter 7 shows that both 

legislators and lay persons chronicled the historic and ongoing 

political exclusion of African Americans in North Carolina, 
supplementing the existing record on the need for remediation.

Finally, North Carolina was permitted to take race into 

account to comply with sections 2 and 5 of the Voting Rights Act. 

Thornburg v. Gingles, 478 U.S. 30 (1986); City o f  Richmond v. United States, 422

U.S. 358 (1975); City o f  Rom e v. United States, 446 U.S. 156 (1980). None

of the statutory requirements may be met using race-blind method^ 

The test under section 2 requires states engaged in redistricting 

to consider, among other factors, the voting strength, size and 

geographic concentration of minority voters within the state. 

Gingles, 478 U.S. at 48. Under section 5, the State also may have

been liable had it failed to demonstrate to the Department of 

Justice that its plan did not have the purpose of diluting, nor the 

result of causing a retrogression in black voting strength. In 

R ichm ond, the Court held that compliance with section 5 necessitated

28



consideration of race and the impact on minority voting strength of 

proposed political boundary changes and affirmative efforts to 

ensure against dilution of minority voting strength. In City o f  R o m e,
the Court underscored the need for jurisdictions to take race into 

account in changing its political boundaries, holding that the 

city's lack of detailed information on the racial breakdown of city 

population left the city no defense against the charge that the 

annexations violated section 5. Id ., at 186.

Indeed, following the Department of Justice objection to the 

first reapportionment plan, Chapter 601, include AAs inherent in 

VRA, and Fullilove ] .

B. The Role of Compactness In Establishing Invidious Intent

While acknowledging the permissibility of race consciousness 

in the redistricting process, the Court in Shaw nevertheless 

indicated that a district plan motivated by the desire to achieve 

racial segregation and nothing more may run afoul of equal 

protection principles. It focused on the configuration of the 

districts as an indictor in determining the rationalness of the 

plan. [cites].
The Court, however, made clear that compactness was not a 

constitutional requirement and therefore was not itself an element 

of the constitutional claim. Shaw 125 L. Ed. 2d at 529. Rather, it

is an evidentiary tool, a factor that may help to establish the 

existence of impermissible intent. 125 L. Ed. 2d at 529, (citing

29



Karcher v. Daggett, 462 U.S. 725, 752 (1983)). However, compactness

criteria taken alone cannot be dispositive in the determination of 

invidious intent. See Karcher v. Dagget, 462 U.S. at 755, n. 15 (Stevens,

J., dissenting) (citing expert warnings regarding danger of defining 

gerrymandering in terms of odd shapes alone) . As will be explained 

below, the utility of compactness as a measure of intent is limited 

by the following factors: 1) it is an indirect measure of the 

state's adherence to permissible redistricting goals. Direct 
measures of the state's adherence may more accurately determine 

whether invidiousness played a role in enactment of the plan; 2) it 

is an ill-defined measure, numerous variations of which have been 

advanced by various proponents but none of which provides a clear 

criterion for determining when a districting plan is compact.

Particularly where a racial gerrymander is defined as 
"segregat[ion of] the races for the purposes of voting," and 

nothing more, it will be crucial to look at other redistricting 

criteria to determine the role they played in the process. For 

example, the Court in Shaw instructed that factors such as the

degree of commonality among individuals within the districts also 

tend to establish a racial gerrymander. 125 L.Ed. 2d at 529.

Compactness is not a legal requirement

The Supreme Court long has recognized that the Constitution 

does not require compactness. See Wright v. Rockefeller, 376 U.S. 52

(1963); White v. Weiser, 412 U.S. 783 (1973); Gaffney v. Cum m ings, 412 U.S.

30



at 752, n. 18; Shaw , 125 L. Ed. 2d at 529.18 In Wright, the Court

upheld two challenged districts that contained an "11-sided, step­

shaped boundary"19 despite evidence that the districts

systematically had separated white and minority voters.

Acknowledging patterns of residential segregation, the Court held 

that recognition of neighborhoods took priority over efforts to 

make each district geographically uniform or, for that matter, 

well-integrated. Id ., at 57-58. In addition, the Court took issue

with the argument that the districts should systematically be more 

integrated, suggesting that such efforts themselves might be 

unconstitutional as based on race. Id ., at 58.

In White, the Supreme Court invalidated a lower court's choice
of the more compact of two proposed congressional apportionment 

plans. Although, according to the lower court, the adopted plan 

was "significantly more compact and contiguous" than the 

alternative, 412 U.S. at 796, it did not take into account "social, 

cultural, economic or other factors, including preservation of 

incumbent congressmen" Id ., at 794, n. 15. The Supreme Court held

that as long as the less compact plan did not violate one-person, 

one-vote, the state was free to pursue its interest in the less 

compact plan. I d ., at 796-797.

In Gaffney, a state legislative reapportionment challenge, the

18something re: compare this with Court's strict adherence to 
one-person, ons-vote standards.

19[insert description of boundary from 376 U.S. at 60].

31



Court upheld a plan containing oddly-shaped districts labeled 

"indecent" by its critics. The Court acknowledged the irregularity 

of the district boundaries but concluded that they were permissible 

to follow the State's "oddly shaped town lines." 412 U.S. at 752, 
n. 18.

These cases make clear that compactness criteria have been 

sacrificed for any number of state interests. Whether to ensure 

representation of neighborhoods, maintain socioeconomic and 

cultural communities of interest, protect incumbents, or recognize 

municipal boundaries, departures from compactness standards have 

been allowed to ensure a closer fit between substantive 

representation and the creation of district boundaries. The cases 

clearly demonstrate that contrary to plaintiffs' assertions, 

compactness lacks a necessary connection to improved representation 
or to specific democratic ideals.

Not only is compactness not constitutionally reguired, it is
c4neither a federal statutory requirement^ in the redistricting 

process, See 2 U.S.C. §2(c), nor a Stc^^ constitutional nor 

statutory requirement [c^Le]. Compactness iteria were not even
included among the guidelines adopted by the^General Assembly in 

90 to govern the reapportionment process.Y[cj^te] That Congress 

and the state of North Carolina have not impo
°rthe apportionment process ..likely r 

no consensus that strict adherence to

sed such requirements 

reflects the fact that there is 

mpactness principles
necessarily will ensure fair representation, [but check Drum v. 
Sewell 250 P. Supp. 922 (1966)— case deciding that cpngre^sional

32



plan was noncompact].
Plaintiffs seek to transform compactness criteria into a 

substantive legal requirement by reading a compactness requirement 

into the federal apportionment statute, 2 U.S.C. §2(c). Plaintiffs' 

Response at 6-7. This misguided approach is flatly contrary to 

the legislative history of the federal apportionment acts for 

virtually the last century. That history demonstrates that 

throughout the last 7 0 years, with the exception of passage and 

amendment of the Voting Rights Act, 42 U.S.C. 1973, Congress 

decisively has rejected the numerous efforts to impose compactness 

and contiguity requirements for congressional reapportionment or 

otherwise to restrict the states' latitude in carrying out the 
reapportionment task.

Federal reapportionment statutes from 1901 until 1922 required 

that congressional representatives be elected from districts 

composed of a contiguous and compact territory, and containing as 

nearly as practicable an equal number of inhabitants." See, e.g., §3

of the Act of Congress of August 8, 1911; 2 U.S.C. §3. However, 

this requirement applied only to the post 1910 apportionment as 

there was no federal reapportionment following the 1920 census and 

no reapportionment statute was passed at that time. Wood v. B room, 
287 U.S. 1, (1932) .

In 1929, the Automatic Apportionment Act was passed. In its 

original form, the bill contained compactness and contiguity 

standards for congressional districts. H.R. 11, 725; Cong. Rec. 

79th Cong., 1st sess., vol. 69 p. 4054. In the second session of

33



the 79th Congress, after debate and discussion, these standards 

were struck from the bill. See Wood v. Broom , 287 U.S. at 7. The

Senate adopted a substantially similar bill rejecting the 

compactness and contiguity standards during the next Congress. 

S.312, 71st Cong., 1st sess., Cong. Rec. Vol. 71, pp. 254, 2450. 

Attempts were made to amend the House bill during final passage to 

reinstate the compactness provisions. Proponents of the amendments 

argued strenuously that without such provisions, "we will go out to 

the country with an apportionment act that leaves it absolutely 

free to the legislature to put in shoe-string districts, saddleback 

districts, and achieve all the vicious things of the gerrymanders 

in the days of old." Cong. Rec., 71st Cong., 1st sess., vol. 71, p. 

2444. (statement of Mr. Reed of New York). The amendment was ruled 

out of order and the bill eventually was passed without the 

restrictions. In W ood, based on this legislative history, the

Supreme Court held that "it was manifestly the intent of Congress 

not to reenact the provisions [of the 1911 reapportionment act] as 

to compactness, contiguity, and equality in population with respect 

to the districts to be crated pursuant to the reapportionment under 
the Act of 1929." 287 U.S. at 7.

In 1959, another attempt was made to incorporate compactness 
criteria into federal apportionment legislation. That year, a bill 

was introduced that called for congressional districts that were 

"composed of contiguous territory, in as compact form as 

practical." H.R. 2648, 82nd Congress, last Session (1951).

Bills essentially identical to H.R. 2648 were introduced

34



unsuccessfully in Congress every year for fifteen years. See, e.g.,

H.R. 970, 89th Cong., 1st sess. (1965); H.R. 2508, 90th Cong., 1st 
sess. (1967).

In 1981, the Fair Representation Act of 1981 was introduced 

into Congress. The Act provided that congressional districts "be 

drawn with due regard to significant natural geographic barriers so 

as to contain only contiguous territory. . . .  be defined by 

boundaries which, to the extent consistent with the reguirements of 

subparagraph (A) coincide with the boundaries of local political 

subdivisions; and . . . be, to the extent consistent with the

requirements of subparagraphs (A) and (B) , compact in form." Even 

this moderate constraint, which made compactness the last among 

districting priorities, failed in Congress.

Compactness Standards Alone Cannot Measure Invidiousness

Compactness has little inherent value in the districting 

process. Rather, compactness principals are thought to facilitate 

the realization of good government values, principally the 

following three: preserving communities of interest, easing

communications between legislators and constituents, and 

discouraging political unfairness. Cain, The Reapportionment Puzzle at
33 (19 ) However, the utility of compactness as an evidentiary

tool in determining improper intent hinges crucially on the 

closeness of the fit between compact shapes and these values. 

Where communities of interest, or concentrations of political 

groupings or racial minorities are not highly compact, or where 

modern roads and other communications technology ease contacts

35



between constituents and representatives over large distances, then 

there is no necessary correlation between irregular shapes and 

improper intent. Indeed, particularly in the age of advanced 

computer technology, plans that egregiously disadvantage particular 

groups, or do not otherwise adequately recognize important state 

interests, may be drawn in conformance with compactness, contiguity 

and equipopulousness standards, C f, Karcher v. Dagget, 462 U.S. at 752

(Stevens, J. dissenting); White v. Weiser, 412 U.S. at 794 (noting that

adherence to objective criteria of compactness, contiguousness and 

equipopulousness may not sufficiently recognize "social, cultural, 

economic, or other factors critical to the state's interest).

Finally, even the plaintiffs' expert concedes, compactness 

measures vary widely and there is no single standard of compactness 

that dispositively determines when a plan is compact and when it is 
not.

1. Discussion of Niemi article on the wide number of 

measures and lack of agreement re: which are best.

In this case there are more direct methods of measuring the 

degree of commonality within districts, or the political or racial 

fairness of the plan, thus the utility of compactness criteria as 

evidence of improper intent is diminished.

[Discussion of Kousser studies on partisan impact]

C. Chapter 7 Was Not an Effort to Segregate the Races for

36



the Purposes of Voting
In this case, the evidence shows that there are strong 

communities of interest.

1. discussion of shapes of regions and dispersion of

partisan/racial groups in part the product of past 
discrimination;

-Stuart, Goldfield, Lichtman

2. Discussion of Lichtman findings of socioeconomic 
uniformity across race in districts

3. Discussion of survey data showing subjective factors are 
cohesive in districts

4. discussion of ease of communication/transportation along 
1-85]

Stuart, Alvarez

5. discussion of actual degree of communication between reps 
and
constituents

Survey data, Allbright, Alvarez, others??

6. discussion showing that districts have not hurt, but 
rather helped turnout

Lichtman ??

7. Intercity political cohesion among groups

Willingham

Partisan concerns also heavily influenced the configuration of 

districts. Virtually from the inception of the redistricting 

process, there were at least three different plans proposing two 

majority African American congressional districts and one that 

contained two majority African American majority districts and one

37



heavily African American "influence" district, [cite to two Balmer 
plans, Flaherty plan and Justus (??) plan]. These plans, proposed 

by Republican legislators, repeatedly were rejected in votes 

largely along partisan lines [cite]. [add something from Fitch 
deposition regarding this battle] After Chapter 601, containing 

only one majority African American district, passed the General 

Assembly, some Republicans charged that in an effort to maintain 

partisan advantage, the Democratic leadership had diluted black 

voting strength by failing to create two black districts, [cite to 
Pope letter to DOJ??]

During the enactment of Chapter 7 there were numerous 

instances of district lines being moved to obtain other partisan 

results. For example, Representative Pope testified about how 

shapes of the 10th, 11th, and 5th districts were influenced by 

partisan concerns.20 Similarly, black neighborhoods in Forsyth 

County were inserted in Steve Neal's district rather than in the 

12th District in order to ensure his Democratic base.21 Republican 

voters in Iredell and Rowan counties were put into the 12th 

district to protect other Democratic candidates.22 Black voters 

in Cabarrus County were left in Bill Hefner's district rather than 

put in the 12th district to preserve Hefner's constituency in that

20Exhibit 34 to Gingles' Intervenors' Opposition to Motion for 
Preliminary Injunction ("P.I. Ex." ) at 104-111.

21 P. I.. Ex., 28 at 50.

22 P.I. Ex. 28 at 55-56.

38



district.23 Republicans such as Senator Leo Daughtry testified

repeatedly that the desire to protect incumbents plainly influenced

the shape of the districts in the congressional plan24:

We ought to try to draw these districts and I think you 
can draw them, with the population, the registration, and 
the voting age in excess of fifty percent, in a viable 
and compact way. And we haven't tried to do that, we 
have tried to protect the incumbent democrats, rather 
than go by the law.25

The First District could have been a majority black district 

including fewer counties and looking more compact, but would have 

detrimentally affected significantly more incumbent congressmen.26

Indeed, North Carolina Republicans Party was so piqued by the 

unfair partisan impact of the final plan that they sued in federal 

court charging an unconstitutional partisan gerrymander. Pope v. Blue 

[cite].
[check Gerry Cohen Deps. for other partisan changes]

III. CHAPTER 7 IS JUSTIFIED BY A COMPELLING INTEREST IN REMEDYING 
DISCRIMINATION

A. Remedying Racial Exclusion is a Compelling Interest 

It is a principal of long standing that remedying 

discrimination is a sufficiently compelling interest to justify a 

state's narrowly tailored use of racial criteria. City o f  Richm ond v.

23 P.I. Ex. 28 at 59-60
24 P.I. Ex. 16 at 14
25 P.I. Ex. 35 at 18.
26 P.I. Ex. 32 at 33 .

39



Croson, 102 L. Ed. 2d 854, 881 (1986) . North Carolina was

justified, and indeed authorized to create majority black districts 

under the Voting Rights Act in order to address longstanding 

patterns of racially polarized voting and black electoral 

exclusion. The districts also were justified under the State's 

larger constitutional duty to take affirmative steps to eliminate 

the continuing effects of past discrimination.

The Voting Rights Act

The State was vested with authority to create two majority 

African American congressional districts under sections 527 and 
228 of the Voting Rights Act.

Section 5

Under section 5, there were three alternative bases for the

Attorney General's to object to the North Carolina congressional 
apportionment plan.

27Section 5 of the Voting Rights Act is a narrow provision 
applicable only to certain jurisdictions where Congress has found 
a history of race-based voting discrimination. These "covered" 
jurisdictions are required to obtain preclearance of any voting 
change before such change may be implemented. 42 U.S.C. #1973(b). 
Under this provision, congressional plans for covered jurisdictions 
are approved on a showing that they had neither the purpose nor 
effect of diluting minority voting strength or causing a 
retrogression from prior levels of voting strength, [cite to CFR] 
Section 5 is limited in duration. Currently it is subject to 
renewal in 2007. [cite]

28The Voting Rights Act section 2 is a catch-all anti- 
discrimination provision that outlaws any "voting qualification or 
prerequisite to voting or standard, practice, or procedure" that 
has the purpose or effect of diluting black voting strength. 42 
U.S.C. #1973. Unlike section 5, this provision, intended to 
address voting discrimination against protected minorities anywhere 
in the nation, is permanent and nationwide in its application.

40



In addition to the familiar nonretrogression standard, 

jurisdictions are liable under section 5 if they fail to 

demonstrate that the submitted change does not have the purpose of 

diluting black voting strength. Rome v. United States, 446 U.S. 156

(1980); 28 CFR §51.52. Violation of section 2 is an additional 

basis for refusal to preclear a plan. 28 CFR §51.55(a)(2). These 

additional preclearance standards deny to jurisdictions that 

consistently and effectively have excluded minority voters from 

electoral participation an artificially low benchmark against which 
to measure the level of electoral opportunity.

Although there had not been a majority African American 

congressional district in North Carolina since the turn of the 

century,29 and thus retrogression could not serve as a basis for 

an objection, the Attorney General concluded that the state had not 

sustained its burden to show that Chapter 601 did not have the 

purpose or effect of diluting black voting strength.30 Her 

conclusion is supported by record evidence that several other plans

29For example, there is significant evidence that North 
Carolina in 1980 purposefully failed to draw a majority African 
American congressional district in the Northeast portion of the 
state. The Attorney General interposed an objection to an initial 
1980 apportionment plan for failure to give effect to black voting 
strength [cite to objection letter]. In 1990, North Carolina 
should not have escaped section 5 requirements because o f its failure 
in 1980 to provide opportunity for African American voters in 
possible violation of the Voting Rights Act.

30Dec. 18, 1991 letter from Assistant Attorney General John 
Dunne to Tiare Smiley (Gingles-Intervenors' Exhibit 31 to 
Memorandum Opposing Motion for Preliminary Injunction).

41



could have been drawn that created two majority black districts,31 
and by evidence that the state was aware of, but failed to give 

effect to the demands of minority advocates that two majority black 

districts be created, [cite]. Subsequent evidence provided by 

plaintiff-intervenors' expert Thomas Hofeller, independently 

corroborates the basis of the Attorney General's objection, [cite 
to deposition ex. and subsequent Hofeller plan].

Following the Attorney General's objection, the State had the 

option of seeking a declaratory judgment in the District Court for 

the District of Columbia that Chapter 601 had neither the purpose 

nor effect of diluting black voting strength. The State's failure 

to do so made binding the Attorney General's determination that it 

had violated federal law when it failed to draw two African 

American congressional districts. The finding of a violation 

created a duty in the state to adopt a remedy that fully and 

completely cured the violation, [cite to VRA remedy cases], 

including by the creation of additional majority black districts. 

See Jeffers v. C linton, 730 F. Supp. 196 (E.D. Ark. 1989) a ffd ____ u.S.

______  (1990); cf, Fullilove v. Klutznick, 448 U.S. at 483 ("where federal

anti-discrimination laws have been violated, an equitable remedy 

may, in the appropriate circumstances, include a racial or ethnic 

factor") . [discussion re: like Fullilove, section 5 triggers state

3'S e e , Flaherty 2 1/2 Minority Plan, submitted to the General 
ASSEMBLY JANUARY 21, 1992; Balmer Congress 8.1, submitted to the 
General Assembly December 30, 1991, Balmer 7.8, submitted to the 
General Assembly July 7, 1991.

42



action]

The finding of a violation of federal law sharply 

distinguishes North Carolina's actions from State actions in Croson,

Wygant and other cases in which the Supreme Court has found 

insufficient State authority to justify race-conscious efforts to 

remedy racial discrimination. In Croson and Wygant, far from having

a determination of an actual violation, the jurisdictions did not 

make findings of identified discrimination or otherwise justify the 

use of race-conscious remedial programs. Croson, 102 L. Ed 2d 884-

885; Wygant, 476 U.S. at 277. Where a State acts to remedy an

actual finding of a statutory violation, it is not merely 

responding to "amorphous" "societal discrimination," Wygant, 476

U.S. at 276, caused by other actors id. at 288 (O'Connor, J. ,

concurring), rather it is discharging its constitutional duty to 

take affirmative steps to eliminate the ongoing discrimination. See

id ., at 291 (O'Connor, J. , concurring).

However, the plaintiffs challenge the creation of the two 

majority African American districts on the ground that "not even 

the creation by Chapter 601 of a single majority-black district was 

'required' by the Act and the failure to create such a district 

would not have justified any inference of a racially discriminatory 

intent." Plaintiffs' Response at 17.32 The gravamen of this

32The plaintiffs claim that the district was not required 
because the General Assembly "believed in the fairness o f  the first congressional 
p la n ,"  id ., at 17, n. 33, (emphasis added). This argument mistakenly

43



argument is that the Department of Justice was wrong when it denied 

preclearance of Chapter 601. However, this claim has already been 

brought before this Court and summarily dismissed. Plaintiffs lack 

standing to bring such a claim and, as the Court itself 

acknowledged, this Court lacks the jurisdiction to hear it. The 

Supreme Court in Shaw left undisturbed this Court's dismissal of

the Attorney General as a defendant precisely on this latter 
ground. 125 L. Ed. 2d at 522.

The express language of the Act and the regulations governing 

its administration make clear that only the covered jurisdiction 

has standing to challenge the Attorney General's objection under 

section 5. 42 U.S.C. #1973(c); 28 CFR §§ 51.10; 51.11 (specifically 

identifying the right to bring a declaratory action under this 

section as that of the "submitting authority"); see Allen v. State Board

o f  E lections, 393 U.S. 544, 558-560. In A llen , the Supreme Court held

that once the section 5 process has been completed, private parties 

may enjoin the enforcement of disputed legislation "only through 

traditional law suits attacking its constitutionality." Private 

parties may not challenge the underlying exercise of discretion by 

the Attorney General. Id ., at 550; Morris v. Gressette, 432 U.S. 491, 507

focuses the voting rights inquiry solely on intent of the 
legislators— assuming that the legislators' statements of 
subjective beliefs about legislation they have enacted could serve 
as the sole indicator of intent— rather than on the effect of the 
apportionment plan. The intent standard, however, soundly has been 
rejected by Congress, 42 U.S.C. #1973, as amended in 1982, and by 
the Courts, Thornburg v. Gingles, 478 U.S. 30, as the sole basis for 
measuring compliance with the Voting Rights Act.

44



(1977). In addition, under section 14(b) of the Voting Rights Act, 

42 U.S.C. §1973(7) (b) , the Attorney General's exercise of discretion 

under section 5 is not reviewable, except by the District Court for 

the District of Columbia. Id ., at 558. The Court in Allen drew a
clear distinction between law suits challenging state enactments as 

violative of the Voting Rights Act and those, under 14(b), 

challenging the constitutionality of the Act itself, observing that 

the District Court for the District of Columbia appropriately was 

Congress' choice for determination of "difficult substantive 
issues" of the constitutionality of the Act.

Plaintiffs' plainly are foreclosed from directly challenging 

the Attorney General's authority under section 5. They cannot now, 

in the guise of attacking the State's chosen remedy for the section 

5 violation, collaterally attack what they cannot directly 

challenge. Their misguided attempt to breathe life into their 

meritless claim must fail.

Section 2

Independent of the Attorney General's finding of a section 5 

violation, North Carolina had a "strong basis in evidence," Shaw,

124 L. Ed. 2d at 535, for concluding that failure to create two 

majority African American congressional districts would violate 

section 2 of the Voting Rights Act. All of the Gingles factors

establishing a section 2 violation were evident in North Carolina 

at the time of the redistricting. Moreover, the recent history of 

discrimination in the reapportionment process was a matter of

45



public record.

First, as a covered jurisdiction, the State was well aware 

that there was a history of voting discrimination against African 

Americans in North Carolina, including the use of literacy tests 

and other devices to thwart black participation. The expert 

reports of Dr. Harry Watson and Dr. Morgan Kousser detail this 

history, particularly in the period following Reconstruction, 
insert brief descriptions of their reports

In putting 40 North Carolina counties under federal 

preclearance, Congress made explicit factual findings directly 

linking the voting discrimination to diminished voter registration 
and participation. 42 U.S.C. # 1973b(b).

Reapportionment

This history of voting discrimination extends to congressional 

reapportionment efforts in the last thirty years. As analyzed by 

expert historian Dr. Harry Watson, at least two of the last four 

congressional reapportionment battles in North Carolina have been 

marred by covert and overt efforts to suppress black voting 

strength, particularly in the Eastern part of the state.33

The focus of efforts to contain the black vote has been to 

manage the "perenial 'problem' . . . of the large and politically

well-organized black community of Durham County." Watson Report at 

23. Dr. Watson found that in 1965, proposals to create a Research

33It was common knowledge that a strong African American 
district could be drawn in this area. It had been the site of the 
historic "Black Second" Congressional district that sent North 
Carolina's last black representative to Congress after
Reconstruction.

46



Triangle District composed of Durham, Wake and Orange Counties, was 
scuttled amidst fears that such a district would feature "a heavy 

concentration of colleges, white and Negro," and would elect a 

liberal congressman responsive to black interests. Instead, 

lawmakers gerrymandered a district that placed Durham with distant 

Forsyth County and the city of Winston-Salem. One Durham lawmaker 

succinctly summed up the legislators' rationale: "Nobody wants 

Durham. They don't like our Negro situation. They nailed down 

everything else and then tacked us on." Watson at 24.

This racially gerrymandered district became the political base 

of conservative white Democrat L.H. Fountain, who despite the 

presence of a large black constituency, opposed contemporary civil 

rights iniatives and was "widely percieved as unresponsive to the 

political goals of black citizens." Id. Thus reapportionment in

1980 again centered on a race-conscious effort to keep Durham out 

of the Second District to preserve Fountain's conservative base. 

Initial efforts to create a Research Triangle district were put 

aside in favor of a long, narrow rural district that many observors 

compared to a fishhook. Id ., at 25. Fountain's supporters argued

against creating a district in which a black candidate could win 

the Democratic nomination because an African American would never 

survive mass white defection from the party in the general 
election.34

34See "Committee OKS Plan to Split Wake, Durham, " Raleigh News &  
Observor, June 3, 1981 (Gingles P.I. Ex.3); Associated Press Report, 
Raleigh News &  Observor, June 5, 1981 (Gigles P.I. Ex. 4).

47



When the Justice Department objected to "Fountain's Fishhook" 

under section 5 of the Voting Rights Act, observors were in 

agreement that "the location of the Durham County —  and its 

politically potent black community— is the key to congressional 

redistricting fight." Durham eventually was drawn into the Second 

District, although majority black Northhampton County was kept out, 

creating a 40% black district. L.H. Fountain announced his 

retirement from politics when black candidate H.M. "Mickey" Michaux 

offered for the seat. Id ., at 25.

Among other things, this record establishes that racially 

polarized voting, which comprises two of the three critical 

threshold prongs of a section 2 violation, was pervasive in North 

Carolina and was common knowledge among lawmakers at least by 1980. 
As noted above, it was taken virtually as an article of faith in 

public debate that a black candidate could not win in a majority 

white jurisdiction and that polarization was so high that it would 

cause significant numbers of white voters to abandon their party 

allegiance. The evidence shows that pervasive racial polarization 

in voting continues to this day in North Carolina.

The reports of expert political scientists Drs. James 

O'Reilly, Richard Engstrom and Alan Lichtman show that in fact, 

racial polarization in voting has been widespread in North 

Carolina, and that it is indeed the norm in the State's political 

life rather than the exception. Expert witness Dr. James O'Reilly 

labelled racially polarized voting one of two "master factors" in 

political competition in North Carolina, the other being racial

48



population configurations within the districts. O'Reilly at 4.

Dr. Richard Engstron examined the results of congressional, 
statewide, and legislative elections in the last decade involving 

black and white candidates.35 In none o f the 33 races analyzed did
African American candidates who were widely supported by African 

American voters garner a majority of white support.36 White 

"crossover" support for black candidates ranged from a low of 

zero37 for Eva Clayton in the 1990 runoff primary to a high of 

47.9% for longstanding incumbent Mickey Michaux in the 1992 contest 

for multimember House District 23 [check engstrom's figures against 
Michaux'. Michaux says that he has only garnered 15 to 18% of 
white votes in recent years. Dick's figures show 47%]. Rep. 

Michaux's high crossover vote may be attributable both to the 

advantage of incumbency and to the lessened reluctance of whites to 

vote for black candidates in multimember districts that offer the 

additional opportunity of voting for white candidates as well. 

O'Reilly at 5. It is signficant that in each of the contests in 

multimember H.D. 23, Michaux placed among the last of white voters' 
choices.

[add something if we get data on racial polarization in the 1st and 
12th]

35Dr. Engstrom used well-established methods of regression and 
homogeneous precinct analysis. See Thornburg v. Gingles 478 U.S. at ____.

36Tables of Dr. Richard Engstrom, Exhibit 21 to Defendants' 
Memorandum in Opposition to Preliminary Injunction Motion.

37This number is based on a regression estimate.

49



Anecdotal evidence supports the statistical analysis. The 
statement of Rep. Mickey Michuax indicates that in his three races 

for the State House in the late 1960s and 1970s, he never gained 

more than 5% support from the white community despite vigorous 

campaigning and outreach among white voters. Declaration of H.M. 

"Mickey" Michaux at 3-4. In his bid for Congress in the 1980s and 
his additional State House races during that decade, Michaux 

garnered about 10% support from white voters. Id ., at 5-6.

Throughout this period Michaux was extremely popular in the black 

community, polling at least 90% of black support in each race. Id .,

at 3-6. In his witness statement, Kenneth Spaulding, chair of the 

Durham Committee on the Affairs of Black People, indicates that in 

four General Assembly races in which he ran unopposed, a majority 

of white voters failed to support him even though they had no other ch o ice.

These voters preferred to forfeit their right to select a candidate 

than to vote for a black candidate. Declaration of Kenneth 

Spaulding at 3.

At times, racial polarization of the electorate is exacerbated 

when white candidates use racial appeals to galvanize white 
support.

[discussion of Watson, Willingham Kousser testimony; documents from 
Bindu]

Repeatedly the extreme levels of racial polarization in North 

Carolina have translated into demoralizing defeat even for the most

50



popular, credible and well-financed black candidates.

[discussion of Michaux, Spaulding, Clayton congressional races from 
Michaux, Spaulding witness statements; Watson, Kousser]

As recently as 1990, white candidate Senator Jesse Helms used 

a sophisticated voter purge campaign to discourage and intimidate 
black voters from voting.

[reference to Postcard docs]

Under Gingles, the remaining precondition is the State's ability

to draw reasonably compact African American majority districts. 

This issue is not in dispute: all parties agree that it was

possible to draw two relatively compact majority African American 

districts. See Plaintiffs' Response at 18; Deposition of Thomas

Hofeller; Hofeller ex. Indeed, with a binding determination from 

the Department of Justice that a second African American district 

could have been drawn, the State well could have been collaterally 

estopped from asserting otherwise in a subsequent section 2 

proceeding.[cite] A variety of plans containing two majority 

African American districts was available to the North Carolina 

General Assembly when the plan was drawn. The existence of these 

plans demonstrates that the Gingles first prong precondition could
have been met. It also suggests, given the wide choice among 

majority African American districts available to the State, that 

its decision to draw the majority black districts in Chapter 7 did 

not submerge all other state interests.

51



t
*

In addition, there is significant evidence that harsh 

disparities in socioeconomic status continue to plague African 

Americans, [discussion of stipulations] and that those disparities 

have a direct effect on African Americans' ability to participate 
in the political process.

IV. The State was Justified in Its Creation of Two Majority Black 
Congressional Districts on the Basis of Its Broader Remedial 
Duty to Eliminate Discrimination

Section 4f— duty to increase electoral opportunity throughout 
political process

State's interest in broadly representative congressional 
delegation.

Importance of substantive representation of black issues—  
Kousser data

52