Brief Amici Curiae of Congresspersons' Supporting Appellants

    No. 98-85 

IN THE 

Supreme mut of the United States 

OCTOBER TERM, 1998 

JAMES B. HUNT, JR., in his official capacity as 

Governor of the State of North Carolina, ef al., 

Appellants, 

V. 

MARTIN CROMARTIE, et al., 
Appellees. 

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

BRIEF AMICI CURIAE OF CONGRESSWOMAN 

CORRINE BROWN, CONGRESSMAN 
JOHN LEWIS, CONGRESSWOMAN CYNTHIA 

McKINNEY, AND THE DEMOCRATIC 
CONGRESIONAL CAMPAIGN COMMITTEE 

SUPPORTING APPELLANTS 

J. GERALD HEBERT PAUL M. SMITH* 
800 Parkway Terrace DONALD B. VERRILLI, JR. 

Alexandria, VA 22302 HEATHER K. GERKEN 

(703) 684-3585 JENNER & BLOCK 
601 Thirteenth Street, N.W. 

Washington, D.C. 20005 

(202) 639-6000 

November 10, 1998 *Counsel of Record  



    

  

  
 



  

TABLE OF CONTENTS 

Page 

INTEREST OF AMICK... J... i an vain v5, Vind 1 

SUMMARY OF ARGUMENT... cas ssi ie vans 2 

ARGUMENT. «ast 00 A ants asain ion sais 55x wn a 5 

I. TWO UNDISPUTED CHARACTERISTICS 
OF DISTRICT 12 SHOULD CREATE A 

STRONG PRESUMPTION AGAINST A 

FINDING OF A RACIAL GERRYMANDER ... 6 

A. A State’s Decision to Draw a District 

Creating a Reasonable Opportunity for 

the Formation of Successful Interracial 

Coalitions Is Not Generally Problematic 

Under the Equal Protection Clause ........ 6 

B. A State’s Use of Precincts or Census Tracts 

as the Foundation for its Redistricting Plan 

Further Strengthens the Presumption of 

Constitutionality.. .........5.....05 2 

C. The Court Should Explicitly Adopt a 
Presumption of Constitutionality in Favor 

of Districts Like District 12 ........ ...4; 18 

II. THE FACTS ON WHICH THE DISTRICT 

COURT RELIED DO NOT COME CLOSE 

TO JUSTIFYING ITS FINDING OF 

RIABILIEY a a ive inn ss 19 

CONCLUSION: oi alin hv an yw vn a 29  



  

il 

TABLE OF AUTHORITIES 

CASES PAGE 

Abrams v. Johnson, 117 S. Ct. 1925 (1997) ..... 23 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 

(1980) cs vis itinesslines ii ass svn 20 

Bushy. Vera, 517 1U.8.952(1996) ........ passim 

Connor. v. Finch, 431 U.S. 407 (1977) ......... 24 

Davis v. Bandemer, 478 U.S. 109 (1986) . 10, 19, 27 

DeWitt v. Wilson, 515 U.S. 1170 (1995), 
summarily aff’'g 856 F. Supp. 1409 

(BD. Cal 1094) 7, ois uis dans sis 3.7 
DeWitt v. Wilson, 856 F. Supp. 1409 (E.D. Cal. 

1994), summarily aff'd, 515 U.S. 1170 
(A998)... i ase Tin nue sv 10, 16, 17, 21 

Johnson v. DeGrandy, 512 U.S. 997 (1994) .. 2,3,9 
Johnson v. Miller, 864 F. Supp. 1354 (S.D. Ga. 

1994), aff'd, 315.8. 900(1995) . .......... 13 
Lawyer v. Department of Justice, 117 S. Ct. 2186 

E17 TL gaan UE REG I Br passim 

Legislature v. Reinecke, 516 P.2d 6 (Cal. 1973) .. 17 

Meadows v. Moon, 117 S. Ct. 2501, summarily 

aff’g 952 F. Supp. 1141 (E.D. Va. 1997) ..7, 14 
Miller v. Johnson, 515 U.S. 900 (1995) .... passim 
Quilter v. Voinovich, 118 S. Ct. 1358 (1998), 

summarily aff’g 981 F. Supp. 1032 

IND.Oho 1997)... 2 vane sn vay, 3.7 
Shaw v. Hunt, 861 F. Supp. 408 (E.D.N.C. 

1994), rev'd, 517210.8.899(1996) ......... .. 13 
Shaw v. Hunt, 517 U.S. 899 (1996) ..... 6,7,9,13 

Shaw v. Reno, 509 U.S. 630 (1993) ....... passim 
Silver v. Diaz, 118 S. Ct. 36 (1997), summarily 

aff 2 978 F. Supp. 96 (E.D.N.Y. 1997) .... 7,13 

   



111 

PAGE 

Thornburg v. Gingles, 478 U.S. 30 (1986) ... 10,11 

United States v. Hays, 515 U.S. 737 (1995) .... 6,8 

Uno v. City of Holyoke, 72 ¥.3d 973 

(IStCin, 1993) cud died iin sivas 10 

Upham v. Seamon, 456 U.S. 37 (1982) ........ 23 

Voinovich v. Quilter, 507 U.S. 146 (1993) ... 23,27 

Whitcomb v. Chavis, 403 U.S. 124 (1971) ...... 23 

White v. Weiser, 412 U.8. 783 (1973)... i va ois 23 

Wilson v. Eu, 823 P.2d 545 

(Cal. 1992). oh i ain 14,13, 16,17, 21 

Wise v. Lipscomb, 437 U.S. 533(1978) ........ 23 

STATUTES 

Section 2 of the Voting Rights Act, 
USC. 1973... cov iviniine Svan i 8 

MISCELLANEOUS 

Michael Barone & Grant Ujifusa, The Almanac 

of American Politics 1998(1997) .......... 26 

Bureau of the Census, U.S. Department of 

Commerce, Guidelines for Delineating Census 

Tracts and Block Groups (June 1985) ....... 14 

Samuel Issacharoff, Polarized Voting and the 
Political Process: The Transformation of Voting 

Rights Jurisprudence, 90 Mich. L. Rev. 1833 
(1992) i i Th Sa A ai a ee 11 

Richard H. Pildes & Richard G. Niemi, 

Expressive Harms, “Bizarre Districts,” and 

Voting Rights: Evaluating Election-District 

Appearances After Shaw v. Reno, 92 

Mich. L.Rev.483(1993) "...... .... 3.9.13, 17  



  

1v 

PAGE 

Richard H. Pildes, Principled Limitations on 
Racial and Partisan Redistricting, 106 

Yale lL) 2305(1997) . 5... 5. vas 16, 19 

The World Almanac and Book of Facts 1998 

C1997)... avin ah aE 24 

http://www .sboe.state.nc.us/results9/ushouse.htm 

(visited Nov. 4, 1998). i. vis avn sda, 21 

http://www/ncga.state.nc.us/.html1997/geography/ 

html3.2/main.html/ (visited Nov. 4, 1998) . 22, 25 

- http://www/ncga.state.nc.us/.html1998/geography/ 

html3.2/main.html/ (visited Nov. 4, 1998) . 22, 25 

   



INTEREST OF AMICI 

Congresswoman Corrine Brown, Congressman John Lewis, 
and Congresswoman Cynthia McKinney represent congressional 
districts in states in which a districting plan has been challenged 
under Shaw v. Reno. The Democratic Congressional Campaign 

Committee is the political organization for Democratic 

Members of the United States House of Representatives and is 

responsible for assisting Democratic candidates running for 

election to the House.' 

While the interests of the congressional representatives 
from North Carolina are being fully represented by appellants, 
amici also have a direct interest in the standards that may be 

established in this case to guide the future creation of 
congressional districts. Although amici certainly do not agree 

with all that this Court has said in the Shaw line of cases, they 
file this brief not in order to carry on that dispute, but because 
this case provides an opportunity for the Court, consistent with 
Shaw, to clarify the applicable law in advance of the next round 
of redistricting and the onslaught of legal challenges that will 
surely follow. This brief offers a workable framework for 

dealing with racial gerrymandering claims like the one before 
this Court. It offers a simple test for determining whether a 
challenged district is presumptively constitutional. Although the 
presumption proposed in this brief is implicit in this Court’s 
prior decisions, amici respectfully urge this Court to recognize 

it expressly in order to provide much-needed guidance to states 
and courts as they gear up for the redistricting that will take 
place after the 2000 Census. 

  

! Counsel for amici authored the entire brief, and no party other than amici has 

made a monetary contribution to the preparation or submission of the brief. 

Letters of consent to the filing of this brief by all parties have been filed with 
the Clerk.  



  

z 

SUMMARY OF ARGUMENT 

1. Shaw v. Reno, 509 U.S. 630 (1993), addressed certain 
types of “expressive” and “representational” harms thought to 

arise from the deliberate creation of majority-minority districts. 
Two undisputed features of North Carolina’s District 12, as 
drawn by the state legislature in 1997, present virtually 

insuperable barriers to those who would label the district as a 
continued example of “racial gerrymandering” proscribed in 

Shaw: (1) the supposedly favored racial group does not have a 
controlling electoral majority, and (2) the district lines were 
drawn using precincts -- a geographic unit that, like census 
tracts but in contrast to much smaller census blocks, promotes 

compactness and allows for reliance on nonracial data. 

To begin, even assuming that the North Carolina General 
Assembly deliberately made some effort to group together a 
substantial number of African-Americans in District 12, it 

stopped short of providing them a controlling electoral majority, 
creating instead a district where African-Americans must “pull, 
haul, and trade” in order to elect their candidate of choice. 

Johnson v. DeGrandy, 512 U.S. 997, 1020 (1994). That 1s 
significant because such a district rarely, if ever, implicates the 
harms Shaw addresses. It does not, as the Court found to be 

the case with certain deliberately created majority-minority 

districts, “convey the message that political identity is, or should 

be, predominantly racial.” Bush v. Vera, 517 U.S. 952, 980 

(1996) (plurality opinion). Nor does it suggest to elected 
representatives “that their primary obligation is to represent 
only the members of [the allegedly favored racial minority], 
rather than their constituency as a whole.” Shaw v Reno, 509 

U.S. at 648. 

   



3 

Indeed, such districts are more likely to signal political 
integration than racial division. They confirm “the fact that 
there are communities in which minority citizens are able to 
form coalitions with voters from other racial and ethnic 
groups.” DeGrandy, 512 U.S. at 1020; see also Lawyer v. 

Department of Justice, 117 S. Ct. 2186, 2195 (1997) (such a 
district “‘offers to any candidate, without regard to race, the 

opportunity’ to seek and be elected to office”) (citation 
omitted). Moreover, without conveying any of the messages 

that troubled the Court in Shaw, the creation of such districts 

does much to facilitate meaningful interracial coalition building. 
That is presumably why the Court has consistently declined to 
invalidate majority-white districts drawn to include a substantial 
minority population. See, e.g., Lawyer, 117 S. Ct. at 2195 
(upholding district with 36% minority population); Quilter v. 
Voinovich, 118 S. Ct. 1358 (1998), summarily aff’g 981 F. 

Supp. 1032 (N.D. Ohio 1997) (three-judge court) (declining to 
apply strict scrutiny to four districts where minority voters did 

not constitute a majority); DeWitt v. Wilson, 515 U.S. 1170 

(1995), summarily aff ’g 856 F. Supp. 1409 (E.D. Cal. 1994) 
(three-judge court) (declining to apply strict scrutiny to 
California’s 52 congressional districts, 17 of which were 
majority-white districts containing a minority population that 

exceeded 35%). 

2. There is even less cause for constitutional concern 

where, as here, a district is drawn using sensible, organic 

geographic units like precincts or census tracts. Use of such 

geographic units mitigates the concerns raised by reliance on 

smaller units like census blocks, for which only racial data is 
available. See Bush, 517 U.S. at 961-64, 966-67, 972-76 

(plurality opinion). Census tracts and precincts allow 
redistricters to use appropriate information in drawing lines, 

help ensure that voters are grouped sensibly, tend to promote  



  

4 

compactness, and are large enough to prevent the 

extraordinarily detailed race-based line-drawing that can occur 
when census blocks are used as the foundation for a districting 

plan. Thus, use of such geographic units guards against the 
appearance that race has been employed for its own sake or as 

a proxy for political behavior. These facts strongly support this 
Court’s pattern of rejecting constitutional challenges to districts 
drawn using whole census tracts while invalidating some 
challenged districts drawn at the census-block level. 
Accordingly, amici urge this Court to recognize a strong 

presumption of constitutionality where, as here, a state has used 
appropriate geographic units to create a district in which the 
supposedly favored group does not enjoy a controlling electoral 
majority, but must instead work with other racial groups to 
pursue shared goals. 

3. Only the most egregious example of race-based line- 
drawing could overcome such a presumption. The facts of this 
case do not come close to satisfying that standard. To the 
contrary, the bulk of the departures from traditional districting 
practices identified by the three-judge court -- the elongated 
shape of the district, the splitting of counties, etc. -- stemmed 
primarily from the difficulties inherent in creating a Democratic- 

leaning district in the Piedmont region of North Carolina. That 

fact is confirmed by the plan ultimately approved by the three- 
judge court. District 12 in the 1998 court-ordered plan retains 
all of these basic features, and any “improvements” over the 
1997 legislative plan came at the expense of substantially 
weakening Democratic voting strength. As to the remaining 
examples of race-based line-drawing identified by the District 
Court, they reveal only that the court substituted its own 
intuitions about redistricting for the politically informed 
judgments of the General Assembly and premised Shaw liability 

   



5 

upon its quarrel with a handful of the State’s line-drawing 
decisions. The Court should, accordingly, reverse. 

ARGUMENT 

This case presents an excellent opportunity to provide 
needed guidance to states and courts about the proper 
application of Shaw v. Reno and its progeny in the upcoming 
round of redistricting following the 2000 Census. In many 
significant respects, the North Carolina legislature in 1997 faced 
a task that mirrors the problems that will confront other states 
in 2001. In redrawing its congressional district lines, the State 
chose to try to maintain the existing partisan balance and 
seniority of its congressional delegation by preserving the 
geographic cores of all existing districts. Thus, in creating the 
new District 12, the legislature endeavored to eliminate features 
that this Court had found to reflect excessive reliance on race, 
while retaining a district that was predominantly Democratic 
and offered the incumbent congressman the same opportunity 
for reelection being granted to all other incumbents around the 
State. In determining whether the State achieved its goals in-a 
constitutional fashion, the Court can give great assistance to 
other states that will inevitably face similar quandaries two years 
down the road. For the reasons stated here, amici believe that 
this case provides an illustration of how states can avoid 
violating Shaw even as they continue to make legitimate efforts 
to create districts in which minority voters have an equal 
opportunity to participate in the political process and to elect 
candidates of their choice.  



  

6 

I. TWO UNDISPUTED CHARACTERISTICS OF 

DISTRICT 12 SHOULD CREATE A STRONG 
PRESUMPTION AGAINST A FINDING OF A 
RACIAL GERRYMANDER. 

A. A State’s Decision to Draw a District Creating a 

Reasonable Opportunity for the Formation of 

Successful Interracial Coalitions Is Not Generally 

Problematic Under the Equal Protection Clause. 

Shaw v. Reno addressed certain types of “expressive” and 
“representational” harms that this Court held can arise from the 
deliberate creation of majority-minority districts. See United 
States v. Hays, 515 U.S. 737, 744-45 (1995); see also Bush, 

517 U.S. at 980-81, 984 (plurality opinion); Shaw v. Hunt, 517 

U.S. 899, 926-27 (1996). It thus requires the application of 

strict scrutiny only where race has “predominated” -- that is, 

where “the legislature subordinated traditional race-neutral 
districting principles . . . to racial considerations.” Miller v. 
Johnson, 515 U.S. 900, 916 (1995). Shaw has been limited in 
this fashion based on the Court’s recognition that it is entirely 
legitimate to give some weight to racial considerations in 
drawing districts, including majority-minority districts. See 
Bush, 517 U.S. at 958 (plurality opinion) (strict scrutiny does 
not “apply to all cases of intentional creation of majority- 

minority districts”); id. at 995 (O’Connor, J., concurring) (Shaw 
is aimed at “distinguishing the appropriate and reasonably 
necessary uses of race from its unjustified and excessive uses”); 
Miller, 515 U.S. at 928-29 (O’Connor, J., concurring) (Shaw 

applies only to “extreme instances” of gerrymandering). 

This case involves allegations that the State made deliberate 
efforts to group together African-Americans in District 12. The 
fact that their voting share nevertheless fell short of a majority 

   



7 

should be given substantial weight in the “predominance” 
inquiry under Shaw and Miller. Until now, the Court has 
applied strict scrutiny only to certain deliberately created 
majority-minority districts. It has consistently declined to 
invalidate districts where the minority population constituted 

less than 50% of the population.> Moreover, just last Term the 

Court observed that “[t]he fact that [a challenged district] is not 
a majority-black district . . . . supports” a decision not to subject 

the district to strict scrutiny. Lawyer, 117 S. Ct. at 2195. 

The distinction implicitly drawn by the Court provides a 
potentially useful basis for limiting and clarifying the scope of 
the Shaw doctrine. Districts like District 12 -- where African- 
American voters are grouped together to the point where they 

have substantial electoral power but not unilateral electoral 

control -- rarely, if ever, cause representational or expressive 

  

* Compare Shaw v. Hunt, 517 U.S. at 905-06 (invalidating districting plan 
whose “overriding purpose’ was the creation of a district with an African- 

American voting majority) (citation omitted), Bush, 517 U.S. at 972-73 

(plurality opinion) (invalidating “exceptional” majority-minority district whose 

“shape was essentially dictated by racial considerations™), Miller, 515 U.S. at 
918 (invalidating majority-minority district when it was “‘undisputed that [the 
district] is the product of a desire by the General Assembly to create a majority 

black district’) (citations omitted), Silver v. Diaz, 118 S. Ct. 36 (1997), 

summarily aff’'g 978 F. Supp. 96 (ED.N.Y. 1997) (three-judge court) 

(invalidating majority-minority district), and Meadows v. Moon, 117 S. Ct. 

2501 (1997), summarily aff’g 952 F. Supp. 1141 (E.D. Va. 1997) (three- 

judge court) (invalidating majority-minority district), with Lawyer, 117 S. Ct. 
at 2195 (upholding district in part because it was not a majority-minority 

district), Quilter v. Voinovich, 118 S. Ct. 1358 (1998), summarily aff’g 981 
F. Supp. 1032 (N.D. Ohio 1997) (three-judge court) (declining to apply strict 
scrutiny to four districts where minority voters did not constitute a majority), 

and DeWitt v. Wilson, 515 U.S. 1170 (1995), summarily aff’g 856 F. Supp. 

1409 (E.D. Cal. 1994) (three-judge court) (declining to apply strict scrutiny 

to California’s 52 congressional districts, 17 of which were majority-white 
districts containing a minority population that exceeded 35%).  



  

8 

harms.?> Almost by definition such a district cannot impose 
representational harms on non-African-Americans because 

African-Americans do not constitute a majority by any measure. 
It is therefore unlikely that its elected officials will “believe that 

their primary obligation is to represent only the members of [the 

minority] group, rather than their constituency as a whole.” 

Shaw v. Reno, 509 U.S. at 648; see also Hays, 515 U.S. at 744. 

Similarly, such districts rarely, if ever, result in expressive 

harms because they do not “convey the message that political 
identity is, or should be, predominantly racial.” Bush, 517 U.S. 
at 980 (plurality opinion); see Richard H. Pildes & Richard G. 

  

* Amici do not wish to discourage the creation of majority-minority districts 
or suggest that they should generally be treated differently from majority-white 

districts. See Miller, 515 U.S. at 928 (O’Connor, J., concurring) (noting that 

Shaw does not impose a racial double standard); Bush, 517 U.S. at 996 

(Kennedy, J., concurring) (same). To the contrary, as we noted at the outset, 

supra p. 6, most majority-minority districts are not themselves properly 

subjected to strict scrutiny, and this Court certainly should not establish any 

standard that would deter creation of the kind of reasonably compact majority- 
minority districts often required by Section 2 of the Voting Rights Act, 42 

U.S.C. §1973. 

Moreover, amici’s proposal to accord somewhat different treatment 
to more extreme efforts to group together minority voters -- based on whether 
or not those efforts produce a majority-minority district -- merely reflects the 

inherent logic of the Shaw lines of cases. In keeping with the Court’s view that 

“reapportionment is one area in which appearances do matter,” Shaw v. Reno, 

509 U.S. at 647, amici simply urge this Court to recognize that the message 
sent by the 1997 legislative plan is different from the one this Court found to 

be conveyed by the plan invalidated in Shaw v. Hunt. 

Finally, the distinctions amici urge this Court to acknowledge should, 

of course, apply equally when states make deliberate efforts to group together 

whites. Thus, a bizarrely shaped majonity-white district carved out of an area 

where one would expect, ceteris paribus, to find a majority-minority district 

would not be entitled to the presumption outlined in this brief. It would 

instead be subject to the same level of scrutiny that the Court has applied to a 
bizarrely shaped majority-minority districts drawn from majority-white areas. 

   



9 

Niemi, Expressive Harms, “Bizarre Districts,” and Voting 

Rights: Evaluating Election-District Appearances After Shaw 
v. Reno, 92 Mich. L. Rev. 483, 506-16 (1993). This is not a 
case where the General Assembly “foreordain[ed] that one race 

be the majority.” Bush, 517 US. at 996 (Kennedy, J., 

concurring). Indeed, the fact that the allegedly favored group 

does not enjoy a controlling electoral majority distinguishes this 

case from those in which this Court concluded that unilateral 

control by the favored race was a criterion that “could not be 

compromised.” Shaw v. Hunt, 517 U.S. at 907. 

Even when districts like District 12 are purposefully created 
to augment minority voting power, their creation is necessarily 

premised on the assumption that “minority citizens are able to 
form coalitions with voters from other racial and ethnic 
groups.” DeGrandy, 512 U.S. at 1020.* They thus convey the 
message that members of all races will “pull, haul, and trade to 
find common political ground, the virtue of which is not to be 
slighted” for those who hope to “hasten the waning of racism in 

American politics.” Id. These districts also “‘offer to any 
candidate, without regard to race, the opportunity’ to seek and 
be elected to office,” Lawyer, 117 S. Ct. at 2195 (citations 
omitted), and signal legislative trust that the candidate elected 

will adequately represent voters of all races. In short, districts 

like District 12 defy the very stereotypes Shaw sought to 

combat. 

  

* Amici, to be sure, do not mean to suggest that interracial coalition building 

cannot occur in majorty-minority districts. It clearly does occur. But when 

a state has carved a bizarrely shaped majority-minority district out of a 

predominantly white area, Shaw indicates that such a district sends a different 
message about the importance of race than either a compact majority-white 

district drawn in that area or a compact majority-black district drawn 
elsewhere.  



  

10 

Not only do these districts convey a message of racial 
cooperation, they also help make this worthwhile goal a reality 
by encouraging interracial coalition building. First, including a 
sizeable concentration of minority voters in the same district 
makes it easier for them to participate in the political system. 

It facilitates efforts to “recruit[] and nurture[]” candidates and 

makes “grassroots organizing and campaigning . . . more 

viable.” DeWitt, 856 F. Supp. at 1414. Second, by ensuring 
that a minority group is large enough to wield political clout 

during an election, it creates incentives for elected officials and 

nonminorities to work with that group to achieve shared 
agendas. Meaningful cross-racial alliances are far less likely to 
arise if minority voters are scattered among several districts 
because they will not be a significant enough political force in 

any single district to engage in such coalition building. For 
these reasons, districts like District 12 are “to be prized as a 

means of encouraging both voters and candidates to dismantle 

the barriers that wall off racial groups and replace those barriers 
with voting coalitions.” Uno v. City of Holyoke, 72 F.3d 973, 
991 (1st Cir. 1995). They thus “bring us closer to ‘the goal of 
a political system in which race no longer matters.” Id. 
(quoting Shaw v. Reno, 509 U.S. at 657). 

  

5 A state’s interest in grouping together sizeable clusters of minority voters is 
most substantial where, as here, voting is strongly polarized. See Affidavit of 
Gary Bartlett, Vol. 4, Attachment 97C-28F-3B (Engstrom Report). The Court 
has long recognized that polarized voting can routinely defeat the preferences 

of minority voters at the polls. See Thornburg v. Gingles, 478 U.S. 30, 52-77 

(1986); Davis v. Bandemer, 478 U.S. 109, 151 (1986) (O’Connor, J., 

concurring) (“As a matter of past history and present reality, there is a direct 
and immediate relationship between the racial minority’s group voting strength 

in a particular community and the individual rights of its members to vote and 

to participate in the political process.”). Depending on the level of racial 

polarization, minority groups that are too small to constitute a voting majority 

can nevertheless elect their candidate of choice with the help of white cross- 

over voting, provided that they are large enough to do so. See Gingles, 478 

   



11 

The concept of “coalition building,” to be sure, may imply 
that groups, whether defined by race or by some other shared 
trait, perceive themselves as having a common interest and 
sometimes wish to work together to achieve a shared goal.’ 

But even when a state deliberately sets out to draw such 

districts, the very premise of their creation is that the interests 
shared by minority voters do not override all others and are, 
indeed, shared by at least some white voters. See Samuel 

Issacharoff, Polarized Voting and the Political Process: The 
Transformation of Voting Rights Jurisprudence, 90 Mich. L. 
Rev. 1833, 1864 (1992) (“Ideally, politics should be a 
deliberative process in which cross-cutting alliances will be 
formed on an issue-by-issue basis and in which race will not 
serve as the overriding cue for voting behavior.”) (footnote 
omitted). Thus, the means chosen by the State to promote 

integrated electoral politics goes far to ensure that the district 
in question does not signal “that political identity is, or should 
be, predominantly racial.” Bush, 517 U.S. at 980 (plurality 

opinion). As this Court observed in Lawyer, “[t]he fact that 

[the challenged district] is not a majority black district . . . . 
supports” a decision not to subject it to strict scrutiny. Lawyer, 
117 S. Ct. at 2195 (emphasis added); see also id. (Court has 
“never recognized similar racial composition of different 

  

U.S. at 85-87 (O’Connor, J. concurring) (noting that the percentage of 
African-American voters needed to elect their candidate of choice depends on 
levels of polarization). Thus, even in cases where a minority group cannot 
form a reasonably compact majority and Section 2 of the Voting Rights Act 
may not apply as a formal matter, the equal-protection concerns that animate 
that statute surely would justify a state’s efforts to assure that minority voters 

play a meaningful role in the democratic process. 

® That view is amply confirmed by the record, which makes clear that African- 

Americans vote cohesively. Affidavit of Gary Bartlett, Vol. 4, Attachment 

97C-28F-3B (Engstrom Report).  



  

12 

political districts as being necessary to avoid an inference of 
racial gerrymandering in any one of them”). 

In evaluating the State’s compliance with the Equal 

Protection Clause, the Court should give considerable weight to 

the fact that districts like District 12 generally do not convey the 

type of message that concerned the Court in Shaw. As this 

Court has emphasized, “reapportionment is one area in which 
appearances do matter.” Shaw v. Reno, 509 U.S. at 647. For 
this reason, only the most egregious departures from traditional 
districting practices could overcome the otherwise permissible 
message that such districts generally convey. They could 
properly be treated as “racial gerrymanders” only where a 
state’s line-drawing decisions convey an unmistakable message 

that race was the only thing that mattered. 

B. A State’s Use of Precincts or Census Tracts as the 
Foundation for its Redistricting Plan Further 
Strengthens the Presumption of Constitutionality. 

Any standard for evaluating a state’s redistricting choices 
must reflect the realities of redistricting in the computer age. In 
drawing districts with the aid of computers, a state selects a 

geographic unit as the foundation for its redistricting plan — be 

it a census block, census tract, or precinct’ — and gradually 

adds to the selected core, unit by unit, until the appropriate 

population level has been attained. A state’s choice of a 
foundational unit can have a profound effect on the way voters 
are grouped and the resulting shape of the district. That fact is 
confirmed by the decision in Bush, where the Court roundly 

  

7 A census block is a much smaller geographic unit than either a precinct or 

a census tract. In North Carolina a typical precinct or census tract contains 

roughly 100 to 150 census blocks. Infra p. 16. 

   



13 

condemned the State’s use of census blocks as the basic unit for 

redistricting. See Bush, 517 U.S. at 961-64, 966-67, 972-76 

(plurality opinion). 

The Bush Court identified two problems with census 

blocks, which are generally identical to city blocks and, on 

average, contain only a few dozen residents. First, at the 

census-block level, only total population and racial data are 

available to redistricters, thus leading the state to focus too 

heavily on race in drawing lines. Id. at 961-62 (availability of 
racial data at block level “enabled districters to make more 

intricate refinements on the basis of race than on the basis of 
other demographic information”). Second, these units are small 

and manipulable, thereby allowing for surgical line-drawing 
separating voters by race. Their use thus tends to result in 

extremely jagged district boundaries that convey the 
unmistakable message that race was the state’s overriding 
redistricting concern. Jd. at 973-76 (boundary lines that 
“interlock ‘like a jigsaw puzzle’ and “correlate almost perfectly 
with race” are “‘unexplainable on grounds other than racial 

quotas established for those districts’) (citations omitted). 
Perhaps for this reason, every district that this Court has 
invalidated under Shaw has been drawn using census blocks.® 

  

® In addition to Bush, the Court struck down the original North Carolina 

District 12, where census blocks were used “as basic building blocks in the 

redistricting process.” Shaw v. Hunt, 861 F. Supp. 408, 457 (E.D.N.C. 

1994), rev'd, 517 U.S. 899 (1996) (striking down District 12). Similarly, in 

Miller the Court invalidated a district where the legislature split precincts in 
order to include African-American voters in the challenged districts and 

engaged in a “block by block search for black voters to add to the [district].” 

Johnson v. Miller, 864 F. Supp. 1354, 1377-78 (S.D. Ga. 1994), aff'd, 515 

U.S. 900 (1995). See also Silver v. Diaz, 118 S. Ct. 36 (1997), summarily 

aff’'g 978 F. Supp. 96, 110-11, 118 (E.D.N.Y. 1997) (three-judge court) 
(invalidating district that was at points “one-block long,” and “curve[d] and  



  

14 

Two other units commonly used by states in redistricting -- 
precincts and census tracts -- go far to alleviate the concerns 
raised by this Court regarding the use of census blocks because 
they provide larger, organic units with which to construct a 

district. To begin with, the use of precincts and census tracts 

helps ensure that the state is sensibly grouping voters instead of 

dividing them by race. Precincts follow local political 

boundaries, and census tracts are neatly nested within political 

subdivisions. See Bureau of the Census, U.S. Department of 

Commerce, Guidelines for Delineating Census Tracts and Block 

Groups 5 (June 1985) [hereinafter “Census Tract Guidelines”] 

(“[t]he county line always is a census tract boundary”). 

Moreover, census tracts are drawn by the Census Bureau to 

represent socially homogenous populations, and their borders 

tend to be easily recognizable natural or man-made features. 

See Census Tract Guidelines at 5 (“Census tract boundaries 
follow permanent, visible features, such as streets, roads, 

highways, rivers, canals, railroads, high-tension power lines, and 
so forth.”); id. at 10 (“census tracts should comprise, as far as 
practicable, a population having similar socioeconomic and 
housing characteristics”); see also Wilson v. Fu, 823 P.2d 545, 

552 (Cal. 1992) (approving use of census tracts to draw district 

lines because they are “‘homogenous as to social 

characteristics,” and are bounded by ‘prominent natural or 
manmade geographical features’) (citations omitted). In 
essence, census tracts are what we colloquially refer to as 

  

weave[d] among street blocks” to pick up minority voters), Meadows v. Moon, 

117 S. Ct 2501 (1997), summarily aff’g 952 F. Supp. 1141, 1147 (E.D. Va. 
1997) (three-judge court) (invalidating district drawn “based upon race at the 

census block level to divide precincts and apportion large numbers of voters 

based on race into, and out of, the [challenged district]”). By contrast, the 

Court has affirmed a district court decision declining to apply strict scrutiny to 

districts designed to augment minority electoral strength when the districts 
were drawn using whole, undivided census tracts. Infra pp. 16-17. 

   



15 

“neighborhoods,” or what Miller described as “communities [of 
interest] defined by actual shared interests,” 515 U.S. at 916. 
See Wilson, 832 P.2d at 552 (keeping intact census tracts 
preserves communities of interest). Districts constructed using 

precincts or census tracts, then, are unlikely to convey an 

impermissible message to voters wondering why they fall on one 

side of the district line or the other. 

Moreover, appropriate, nonracial information is available 

for each precinct and census tract, thus making it less likely that 

an impermissible message will be conveyed. Precincts allow a 
redistricter to construct a district using election data, which are 
legitimately considered in any line-drawing decision. See Bush, 

517 U.S. at 964-65 (plurality opinion). Even more information 

is available to the redistricter at the census-tract level, including 

detailed socioeconomic and demographic information. See 
Lawyer, 117 S. Ct. at 2195 (approving district that was drawn 
along socioeconomic lines).” Both thus help ensure that race is 
not seen as a “proxy” for voter behavior, as occurs when a state 
redistricts using census blocks for which only racial information 
is available. See Bush, 517 U.S. at 961-62 (plurality opinion) 
(contrasting use of the “uniquely detailed racial data” available 

at census-block level with the broad range of “party registration 
and past voting statistics” and “demographic information” 
available at the precinct or census-tract level). 

Furthermore, precincts and census tracts are substantially 
larger than census blocks, which have served as the basis for 
drawing each of the majority-minority districts struck down by 
this Court. See supra note 8. According to figures provided by 

  

* Even when precincts do not correspond exactly with census-tract lines, a 

redistricting program can aggregate precinct-level election results for each 
census tract so that voting data is available at the tract level.  



  

16 

the Geography Division of the Census Bureau, there are 
approximately 220,000 census blocks in North Carolina. By 
contrast, there are only about 1,500 census tracts and 2,200 

precincts in North Carolina. Compare Wilson, 823 P.2d at 571 
(California contains 400,000 census blocks but only 6,000 

census tracts). Reliance on census tracts and precincts 

effectively forecloses the degree of racial fine-tuning that the 

Court condemned in Bush, 517 U.S. at 961-64, 972-76 

(plurality opinion), and helps ensure that congressional districts 
are not dramatically irregular, see id. at 972-76 (plurality 
opinion) (concluding that jagged boundaries signal 
predominance of race). See also Richard H. Pildes, Principled 
Limitations on Racial and Partisan Redistricting, 106 Yale L.J. 
2505, 2516 (1997) (attributing significant increase in bizarrely 
shaped districts in 1990s to “technological improve[ments]” that 

allowed for more fine-tuned line-drawing). 

The use of undivided census tracts, in particular, goes far 

to guarantee that districts will be reasonably compact and will 

not contain the type of jagged edges that signal egregious race- 
based line-drawing.'® That fact is confirmed by the decision of 
the three-judge court in DeWitt v. Wilson, 856 F. Supp. 1409 

(E.D. Cal. 1994), summarily affirmed by this Court, 515 U.S. 
1170 (1995). Using whole census tracts to draw district lines, 

see DeWitt, 856 F. Supp. at 1413-15; Wilson, 823 P.2d at 549- 

50, redistricters drew 17 districts containing a minority 
population that was greater than 35% but less than 50%." 

  

19 Of course, where, as here, the state is forced in the middle of a decade to 

draw districts on an expedited basis and wishes to do so largely along partisan 

lines, using precincts is the most administratively efficient means to do so. 

1! See Wilson, 823 P.2d at 568 (text of Special Masters’ Report) (“we have 

aimed to maximize the voting potential of a geographically compact minority 
group of any appreciable size even where it would not constitute a majority in 

   



17 

Even though the State’s deliberate efforts to group together 
minority voters resulted in the creation of some “elongated 
districts,” Wilson, 823 P.2d at 579-80 (text of report by Special 
Masters), the districts’ “perimeter scores” -- one measure of 
compactness -- were quite high. See Expressive Harms, 92 
Mich. L. Rev. at 549 (perimeter score is low if “district’s 

borders wander around in contorted way”); id. at 565 (listing 
districts with lowest perimeter scores).'> Moreover, as noted by 
the California Supreme Court, districting using census tracts 
“‘aid[s] in establishing natural, well defined legislative districts 

and . . . in obtaining valid pertinent socioeconomic data about 
such districts.” Legislature v. Reinecke, 516 P.2d 6, 17 (Cal. 
1973) (quoted by Special Masters in Wilson, 823 P.2d at 570). 

Under these circumstances, as a plurality of this Court has 
explicitly recognized, see Bush, 517 U.S. at 958, the district 

court was correct to decline to subject the challenged districting 
plan to strict scrutiny. See DeWitt, 856 F. Supp. at 1413-15. 

For these reasons, the kind of showing necessary to trigger 

strict scrutiny for a district designed to foster interracial 
coalition building would be virtually impossible where, as here, 
the lines were based on existing precincts or census tracts, 
rather than smaller units like census blocks. The use of 
appropriate geographic units such as precincts or census tracts 

virtually guarantees that the resulting district will nof signal that 
race was the overriding factor in a state’s redistricting calculus. 
Districts that foster interracial coalition building and are 

  

the particular district”); id. at 598 (providing racial breakdown of 

congressional districts). 

2 Indeed, the only California district to be classified among the Nation’s least 

compact districts received a low perimeter score due to topography, not 

gerrymandering. See Expressive Harms, 92 Mich. L. Rev. at 565-66 & n.234.  



  

18 

constructed from either of these two geographic units, then, 
should be deemed presumptively constitutional. 

C. The Court Should Explicitly Adopt a Presumption 

of Constitutionality in Favor of Districts Like 

District 12. 

Amici urge the Court to announce a very strong 

presumption of constitutionality in favor of districts where it is 
undisputed that the supposedly favored racial group does not 
have a controlling electoral majority and the state has 
redistricted using sensible, organic geographic units like 
precincts or census tracts. While such a presumption is 
certainly implicit within the Court’s prior decisions and, indeed, 
mandated by the principles of Shaw, one cannot underestimate 
the importance of expressly providing this type of clear 
guideline to states and courts facing the next round of 
redistricting after the 2000 Census. Without a clear legal 
presumption designating those instances in which the use of 
race 1s permissible and those in which a state relies on race too 

heawvily, it 1s possible that, as here, Shaw will be read to require 
the application of strict scrutiny to districts throughout the 
country, regardless of their racial make-up. But see Miller, 515 
U.S. at 928-29 (O’Connor, J. concurring) (“Application of the 

Court’s standard does not throw into doubt the vast majority of 

the Nation’s 435 congressional districts. . . . That is so even 

though race may well have been considered in the redistricting 
process.”). States facing the same redistricting challenges as 

North Carolina will be forced to redistrict without having any 
confidence that the federal district court reviewing their plan 
will not make the same mistakes made in this case. 

Even if the Court were ultimately able to correct all of the 
mistaken district court decisions like this one, the Court’s 

   



19 

failure to provide such a presumption today would inevitably 

distort the redistricting process. Indeed, because redistricting 
“cases are exceptionally charged politically, racially, and 
ethnically,” Principled Limitations, 106 Yale L.J. at 2550, 
doctrinal ambiguities create an incentive for parties to seek 

through the courts what they could not obtain at the bargaining 

table, and thus will skew the bargaining process itself. Id.; see 

also Davis v. Bandemer, 478 U.S. 109, 147 (1986) (O’Connor, 
J., concurring in judgment) (rebuking plurality for inviting “the 
losing party or the losing group of legislators . . . to fight the 

battle anew in federal court”). For these reasons, this case 
provides an ideal opportunity to provide a workable framework 
for future efforts to ensure that minority voters have an equal 
opportunity to participate in the political process and to elect 
candidates of their choice. 

II. THE FACTS ON WHICH THE DISTRICT COURT 

RELIED DO NOT COME CLOSE TO JUSTIFYING 
ITS FINDING OF LIABILITY. 

Applying the presumption articulated above, the District 
Court plainly erred in summarily concluding that District 12 
violated Shaw. Where, as here, a state has merely created a 

district in which all racial groups can engage in productive 

coalition building and has done so using appropriate geographic 

units, only the most egregious departures from traditional 

districting practices would signal that race was its overriding 

concern. Here the District Court did find that the State had 

drawn District 12 along racial lines. But the District Court did 

not -- and could not -- conclude that the State segregated voters 

on a block-by-block basis, failed to use appropriate geographic 
units in creating the district, or engaged in some other sort of  



  

20 

egregious racial line-drawing.”> That is because the State 
consistently employed whole, undivided precincts in 

constructing District 12,'* and the district’s boundary betrays 
none of the racial fine-tuning evident in other Shaw cases. 

Instead, the District Court rested its finding of liability on 

the shape of the district, the splitting of political subdivisions, 
and the State’s exclusion of certain supposedly “heavily 
Democratic” precincts. But even assuming that the State 
deliberately drew District 12 to facilitate racial coalition- 

building, these facts would not begin to show that the State’s 
consideration of race was so excessive that the three-judge 
court was justified in summarily invalidating the district. To the 
contrary, it remains clear that the predominant factor underlying 
the creation of District 12 was politics, not race. 

The District Court’s conclusion that race predominated in 

the drawing of District 12 was based in large part on the 
district’s elongated shape and the fact that it split a number of 

  

'* The State presented direct evidence that the General Assembly was 
predominantly motivated by partisan concerns. J.S. App. at 69a-78a 

(Affidavit of Senator Roy A. Cooper, III); id. at 79a-84a (Affidavit of 
Representative W. Edwin McMahan). It also submitted an expert report 

confirming that partisan concerns, not race, best explain the inclusion and 
exclusion of precincts around the district’s border. J.S. App. at 85a, 87a-88a, 

98a-99a (Affidavit of Dr. David Peterson). The District Court’s disregard of 

this evidence plainly contravened the requirements of Rule 56 of the Federal 

Rules of Civil Procedure. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

249-52 (1986); see also Miller, 515 U.S. at 915 (“until a claimant makes a 

showing sufficient to support [his or her] allegation, the good faith of a state 

legislature must be presumed”) (emphasis added). 

"Of the scores of precincts in and around District 12, the district split only 
one. The 1997 plan as a whole split only two of North Carolina’s 
approximately 2200 precincts. 

   



21 

cities and counties. But because districts like District 12 convey 
a message of racial cooperation, not division, even an express 

decision to create such an elongated district could not, without 
more, signal that race was the “overriding factor” in the State’s 

redistricting calculus. See Wilson, 823 P.2d at 579-80 (text of 

Special Masters’ Report) (acknowledging that “elongated” 

districts in plan resulted from redistricters’ efforts to augment 
minority voting strength); DeWitt, 856 F. Supp. at 1415 
(declining to apply strict scrutiny to districting plan drawn by 
Special Masters in Wilson). 

It would be especially inappropriate to infer illicit intent 
from the district’s shape here because that shape was dictated 
by the State’s efforts to create a district in which the 

Democratic incumbent could be reelected. Indeed, any 

Democratic-leaning district in this part of North Carolina 
would, by necessity, resemble District 12 because Democrats in 
that area are clustered in medium-sized cities, with fairly sparse, 
Republican-dominated populations between them. For 
example, it was not possible to draw a Democratic district that 
includes all of Charlotte and Mecklenburg County, nor was it 
possible to do so entirely in Guilford and Forsyth Counties." 
Thus, the only sensible way to draw a Democratic-leaning 

  

** The General Assembly could not draw a Democratic district located entirely 
in Guilford and Forsyth Counties because, according to 1996 U.S. House 

election results, those counties have voted heavily for Republicans in 

congressional elections. See http://www .sboe.state.nc.us/results9/ushouse.htm 
(visited Nov. 4, 1998) (official website of the North Carolina State Board of 

Elections) (county-by-county vote totals for each congressional race). 
Similarly, 1t could not draw a Democratic district that included all of 

Mecklenburg County (and thus all of Charlotte) because such a district would 

have given Republicans a significant advantage, see id., and would have pitted 

District 12's Democratic incumbent Mel Watt against his neighbor, District 
9's Republican incumbent Sue Myrick, who represents more than two-thirds 
of Mecklenburg County.  



  

2 

district was to do exactly what the State did here: include the 
Democratic parts of both areas by drawing a district that 
stretched from Charlotte in the south to the Piedmont Triad 

(Greensboro, Winston-Salem, and High Point) in the north, 

taking care not to pick up too many Republicans between those 

two metropolitan areas. Such a district would have to extend 

a fair distance across the region, split a number of counties and 
cities, and be narrow at points -- all major elements of the 

District Court’s decision to invalidate the 1997 legislative plan. 
See J.S. App. 19a-22a. 

That fact is confirmed by the 1998 court-ordered plan 
ultimately approved by the District Court. Even in that plan, 
where the court found that race had not predominated, J.S. 

App. 175a, 178a-179a, the new District 12 is still elongated, 
remains narrow in several places, and splits only one fewer 

county. More importantly, these “improvements” were made to 
the 1997 legislative plan only at the expense of significantly 
weakening Democratic voting strength in the district, lowering 
the margin of victory for Democratic candidates by 14 
percentage points when compared to the 1997 legislative plan. 

See http://www/ncga.state.nc.us/.html1997/geography/htmil3.2/ 
main.html/ (visited Nov. 4, 1998) (official website of North 
Carolina General Assembly) [hereinafter “NCGA Website] 
(providing district-by-district election results for 1997 
legislative plan and 1998 court-ordered plan). Thus, the 

predominant reason for the shape of District 12 was political, 

not racial.'® 

  

'* Plaintiffs offer a different justification for the District Court’s conclusion, 
one that cannot be squared with the District Court’s approval of the 1998 

court-ordered plan. They argue that, regardless of the State’s motives, any 
remedial plan that retains the “core” of a previously invalidated district 
necessarily carries the “taint” of the former violation and is therefore 
unconstitutional as the “fruit of the poisonous tree.”” That is incorrect. Had 

   



23 

More fundamentally, the District Court’s heavy emphasis 
on the State’s splitting of political subdivisions was wrong as a 
matter of principle. An illicit motive cannot be inferred from a 
state’s decision to use precincts or census tracts rather than 

large subdivisions like counties and cities as the foundational 

  

a federal court instead of the state legislature drawn a remedial district, it 
would have been required to do precisely what plaintiffs argue that the State 
cannot: retain as much of the old plan as possible in remedying the 

constitutional violation. See Upham v. Seamon, 456 U.S. 37, 43 (1982) (per 

curiam) (court may make only those changes “necessary to cure [the] . . . 
defect” and is “not free . . . to disregard the political program of the [state 

legislature], Whitcomb v. Chavis, 403 U.S. 124, 160 (1971) (remedial plan 

may not “intrude upon the state policy any more than necessary”), White v. 

Weiser, 412 U.S. 783, 793-95 (1973) (court must choose remedial plan that 

most closely resembles state’s preference so long as it remedies constitutional 

violation). Given that a federal court would be required to maintain the core 

of District 12 in fashioning a constitutional remedy, it is beyond cavil that the 

state legislature has a similar power. See Wise v. Lipscomb, 437 U.S. 535, 

540 (1978) (a “State’s freedom of choice to devise substitutes for an 
apportionment plan found unconstitutional, either as a whole or in part, should 

not be restricted beyond the clear commands of the Equal Protection Clause”); 

see also Lawyer, 117 S. Ct at 2191-92, 2195 (approving legislative plan that 

retains core of prior unconstitutional district, including a substantial portion of 

minority voters); Voinovich v. Quilter, 507 U.S. 146, 156-57 (1993) (“Of 
course, the federal courts may not order the creation of majority-minority 

districts unless necessary to remedy a violation of federal law. But that does 

not mean that the State ’s powers are similarly limited. Quite the opposite is 

true . . ..”) (emphasis added). 

Nor does Abrams provide any support for plaintiffs. The Court did 

not question, let alone overrule, the well-established principle that a court must 

defer to legislative preferences in adopting a remedial plan. See Abrams v. 

Johnson, 117 S. Ct. 1925, 1933 (1997). Instead, it considered how to assess 
the legislative preference given the Department of Justice’s interference with 

Georgia’s redistricting judgments. See id. (distinguishing case from Upham 

because the plan purportedly expressing the legislative preference was enacted 
due to improper pressure from the Department of Justice). In the present case, 

there is absolutely no evidence of Justice Department interference. See J.S. 
App. 31a-33a.  



  

24 

unit for drawing districts. That is because cities and counties 
are generally too large and heterogeneous to provide suitable 
“building blocks” for redistricting. Because of their size, they 
are routinely split simply to satisfy other districting criteria. For 
example, “[t]he policy of maintaining the inviolability of county 
lines . . . , if strictly adhered to, must inevitably collide with the 

basic equal protection standard of one person, one vote.” 
Connor v. Finch, 431 U.S. 407, 419 (1977). Indeed, there are 
more than 80 counties in the United States that are too large to 

be placed in a single congressional district, and roughly 40% of 
the U.S. population resides in those counties. See The World 
Almanac and Book of Facts 1998, at 376, 420-38 (1997). 
Because state legislative districts are usually much smaller than 
federal ones, the splitting of counties and cities becomes even 

more inevitable in drawing the former. 

Simularly, these types of political subdivisions often contain 

distinct communities of interest that are more sensibly grouped 
into separate districts -- for example, poor, urban residents may 
have little in common with wealthy suburbanites living in the 

same county. See Lawyer, 117 S. Ct. at 2195 (approving 

creation of district that split three counties where members 
“share a similarly depressed economic condition and interests 
that reflect it”) (citations omitted). Finally, local officials often 
prefer to have their city or county divided among several 
congressional districts to “maximize” their points of access to 
Capitol Hill. Given the legitimate reasons a state like North 
Carolina has to selects precincts (or census tracts) instead of 
cities and counties as the foundation for its redistricting plan, it 

   



25 

was plainly inappropriate for the District Court to premise Shaw 
liability on the State’s decision to make this reasonable choice." 

Finally, the District Court also inferred an illicit racial 
motive from the boundary of District 12 because the State 

excluded 32 predominantly white precincts that the court 

deemed to be “heavily Democratic” precincts based on voter 
registration data. The court erred for two reasons. First, of the 

32 supposedly “heavily Democratic” precincts that the District 

Court claimed were wrongly excluded from District 12, J.S. 

App. 8a-9a, all but one were less Democratic -- even by the 
Court’s incorrect measure -- than the district itself. Compare 
NCGA Website (indicating that the Democrats comprised 
71.27% of registered voters in the 1997 version of District 12) 

with J.S. App. at 8a-9a (listing registration rates for 32 excluded 
precincts, 31 of which were less than 67% Democratic). Thus, 

their inclusion would have substantially weakened Democratic 
voting strength in District 12. 

Second, as Judge Ervin sensibly explained in his dissent, 

registration data is a terribly misleading predictor of federal 

election results because “registered Democrats are not 
compelled to vote for Democratic candidates and often do not.” 
J.S. App. 37a. Democratic registrants outnumber Republicans 

by more than two-to-one in North Carolina, yet Republicans 
have won most U.S. Senate elections there since 1970 and all 

but one Presidential race since 1964. Indeed, all twelve 

  

'7 Nor is it clear that political subdivisions like cities and counties do much to 

aid the Shaw inquiry. Because these kinds of political subdivisions vary 

tremendously in geographic size and population density, it is very difficult to 

make comparative judgments about decisions to split them. See Bush, 517 
U.S. at 963 (plurality opinion) (noting that line-drawing decisions create 

different appearances in “large, densely populated urban counties” than in 

rural areas).  



  

26 

congressional districts used in the 1998 elections would be 
designated “Democratic” by the District Court’s faulty measure, 
see NCGA Website (listing district-by-district registration rates 
for 1998 plan), yet seven of those seats were captured by 

Republicans this fall. In short, the election returns on which the 

informed political actors who drew the challenged plan actually 

relied, see J.S. App. at 73a, not partisan registration rates, are 

plainly the appropriate measure for assessing Democratic 
strength in District 12." 

There were, to be sure, a handful of majority-Democrat 

precincts (measured by election results) left out of District 12. 

But that fact says nothing about whether partisan concerns 

primarily determined the shape of District 12. To the contrary, 

  

'® Appellees have tried to downplay the significance of the District Court’s 

error by arguing that the 1990 race between former Mayor Gantt and Senator 

Helms is the only relevant race for gauging Democratic strength. See 

Appellees’ Motion to Dismiss Or, in the Alternative, Affirm, at 25 (filed Aug. 
26, 1998). But the state legislators who drew District 12 were plainly correct 
to rely on the results of other races as well. Indeed, while the Gantt-Helms 

numbers may provide an adequate basis for comparing the relative Democratic 

strength of precincts in the area, they are certainly not a good way to assess the 
likelihood that a Democrat will be elected in a congressional race. That is 
because Gantt, the former mayor of Charlotte and an extremely popular figure 
in the area, had a “home turf” advantage over Helms -- an advantage that 

would not be shared by a Democrat running in a congressional race, where 

both candidates would be from the area. The benefit of Gantt’s regional ties 

is confirmed by the fact that Gantt performed worse than the average Democrat 

in nine of North Carolina’s districts, but better than the average Democrat in 

the two districts where he had a home turf advantage: Districts 12 and 9. See 
NCGA Website (listing district-by-district election results for 1998 plan). It 
would be as problematic to call these precincts “Democratic” based on Gantt’s 
performance as it would be to conclude that Arkansas is a wildly Democratic 

state in presidential elections just because then Governor Clinton beat 

President Bush there by 18 points. See Michael Barone & Grant Ujifusa, The 

Almanac of American Politics 1998, at 115 (1997). 

   



27 

it generally is in the Democrats’ interest to leave out such 
precincts once a sufficiently “Democratic” district has been 
created. The addition of any other Democratic voters would 
result only in “packing,” thereby wasting Democratic votes. See 
Voinovich v. Quilter, 507 U.S. 146, 153-54 (1993) (describing 

similar phenomenon for racial groups). Precisely the same 

incentives would have been at work for the GOP because 
moving any more “Democratic” precincts into District 12 would 
have resulted in “packing” more Republican voters in the 
surrounding districts (District 5, 6, 9, and 10). 

In any case, it was surely inappropriate to invalidate North 

Carolina’s preferred redistricting plan because the three-judge 
court disagreed as to the placement of a handful of the many 
precincts in District 12. The test for assessing the validity of the 
1997 legislative plan is whether race was the predominant 
motive for a state’s line-drawing decisions. Miller, 515 U.S. at 
915-16. Liability cannot hinge upon the State’s placement of a 
few precincts. See Bandemer, 478 U.S. at 133 (plurality 
opinion) (“[i]nviting attack on minor departures from some 
supposed norm would too much embroil the judiciary in second- 
guessing what has consistently been referred to as a political 
task for the legislature”); id. at 147 (O’Connor, J., concurring 

in the judgment) (concurring with this view out of concern that 
“[flederal courts will have no alternative but to attempt to 

recreate the complex process of legislative apportionment in the 

context of adversary litigation”). That is especially true where, 

as here, an examination of all of the relevant precincts in toto 
reveals a predominantly partisan rather than racial motive. See 

J.S. App. at 85a, 87a-88a, 98a-99a (Affidavit of Dr. David 
Peterson), see also Bush, 517 U.S. at 963-64 (plurality opinion) 
(holding that political considerations such as incumbency 
protection and preserving a partisan balance are traditional 
districting practices that can justify a misshapen district).  



  

28 

Indeed, if the constitutional validity of a district were to 
hinge upon this type of microanalysis, it would undermine the 
very principles announced in Shaw. Every time a redistricter 
included or excluded a precinct for any reason, the state would 
have to compare that precinct’s racial make-up to those falling 
on the other side of the line. Worse, the state would be 

required to alfer any race-neutral decision that violated 

whatever racial bottom-line a district court might demand. In 
short, a principle established to discourage the excessive 

consideration of race in redistricting would instead mandate it. 

* %k %k kx 

Although the errors in the District Court’s opinion are 
easily refuted, they signal the serious risks facing states during 
the next round of redistricting. In their efforts to enforce the 

Equal Protection Clause, federal district courts are all too likely 
to substitute their judgments regarding these complex questions 
for those of experienced political actors. States thus face the 
risk that, as in this case, Shaw liability will be premised on minor 
departures from standards the state chose not to use and could 

not hope to anticipate. The greatest assistance the Court could 

provide to states and courts alike is to articulate clear legal 
presumptions and standards regarding Shaw’s application to 

majority-white districts drawn to include a sizeable minority 

population. See Bush, 517 U.S. at 993 (O’Connor, J, 
concurring) (proposing “workable framework” for evaluating 

majority-minority districts). Amici submit that the presumption 

articulated here provides this type of workable framework. 
Accordingly amici strongly urge its explicit adoption. 

   



2° 

CONCLUSION 

The judgment below should be reversed. 

Respectfully submitted, 

J. GERALD HEBERT PAUL M. SMITH* 

800 Parkway Terrace DONALD B. VERRILLI, JR. 

Alexandra, VA 22302 HEATHER K. GERKEN 

(703) 684-3585 JENNER & BLOCK 

601 13th Street, N.W. 

Washington, DC 20005 

(202) 639-6000 

November 10, 1998 * Counsel of Record