State Appellants’ Brief on the Merits

Public Court Documents
November 10, 1998

State Appellants’ Brief on the Merits preview

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  • Case Files, Cromartie Hardbacks. State Appellants’ Brief on the Merits, 1998. 4ac58ba7-d90e-f011-9989-7c1e5267c7b6. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/7a5422fd-f41b-42d2-8f37-51859da9fa4c/state-appellants-brief-on-the-merits. Accessed May 15, 2025.

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October T Term; 1998 2 pare 
  

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°E dwin M. Speak, | r. x Chief Desi Aiomey General 

"i Tiare B. Smiley, Special Deputy Attorney. General 
Melissa] L. ‘Saunders, Special Counsel to General 2 . i IE : | 

ak North Carolina Department of Justice 
ns “7 Post Office Box 629. 

Raleigh, North Carolina 27602- 0629 
Mr 019) 716- 6900 

Walter. Dellinger 4 Ti i PRI 
AE . Crystal Nig. ole nit, pi 

i  OMaveny & Myers, Lp 
555 13th Street, N.W. 

‘Washington, DC: 20004 
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QUESTIONS PRESENTED 

In a racial gerrymandering case, is an inference drawn 
from the challenged district’s shape and racial 
demographics, standing alone, sufficient to support 
summary judgment for the plaintiffs on the contested 
issue of the legislature’s predominant motive in 
designing the district, when that inference is directly 
contradicted by the affidavits of the legislators who 
drew the district? 

In applying the Shaw-Miller predominance test, may a 
court rely on isolated and sporadic party registration 
data to reject a state’s assertion that partisan political 
considerations were the predominant factor in a 
district’s design, when the uncontroverted evidence 
established that the state used actual voting results, 
rather than party registrationdata, to shape the district’s 
boundaries? | 

May a plaintiff subject a majority-maj oritydistrict with 
a substantial minority population to the strict scrutiny 
of the Shaw-Miller doctrine, simply by showing that it 
is slightly irregular in shape and contains a higher 
concentration of minority voters than its neighbors, 
when there is absolutely no additional evidence that 
race was the predominant factor in its design? 

    
        

     



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LIST OF PARTIES 

JAMES B. HUNT, JR., in his official capacity as Governor of 
the State of North Carolina, DENNIS WICKER in his official 
capacity as Lieutenant Governor of the State of North Carolina, 
HAROLD BRUBAKER in his official capacity as Speaker of 
the North Carolina House of Representatives, ELAINE 
MARSHALL in her official capacity as Secretary of the State 
of North Carolina, and LARRY LEAKE, S. KATHERINE 
BURNETTE, FAIGER BLACKWELL, DOROTHY 
PRESSER and JUNE YOUNGBLOOD in their capacity as the 
North Carolina State Board of Elections, are appellants in this 
case and were defendants below; 

ALFRED SMALLWOOD, DAVID MOORE, WILLIAM M. 
HODGES, ROBERT L. DAVIS, JR., JAN VALDER, 
BARNEY OFFERMAN, VIRGINIA NEWELL, CHARLES 
LAMBETH and GEORGE SIMKINS are intervenor-appellants 

‘in this case and were intervenor-defendants below: 

MARTIN CROMARTIE, THOMAS CHANDLER MUSE, 
R. O. EVERETT, J. H. FROELICH, JAMES RONALD 
LINVILLE, SUSAN HARDAWAY, ROBERT WEAVER and 
JOEL K. BOURNE are appellees in this case and were 
plaintiffs below. 

  

      
        
 



  

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v 

TABLE OF CONTENTS 

QUESTIONS PRESENTED 

LIST OF PARTIES 

JURISDICTION 

    
CONSTITUTIONAL AND STATUTORY 

PROVISIONS INVOLVED 

STATEMENT OF THE CASE 

A. THE 1997 REDISTRICTING PROCESS 

B. THE 1997 PLAN 
  

D. THE THREE-JUDGE DISTRICT COURT’S OPINION .. 
E. THE INTERIM PLAN   

I. THE DISTRICT COURT’S JUDGMENT 
SHOULD BE REVERSED BECAUSE 
PLAINTIFFS FAILED TO CARRY THEIR 
BURDEN OF PROVING THAT RACE WAS 
THE PREDOMINANT FACTOR IN THE 
DESIGN OF DISTRICT 12   

     



  

vi 

A. THE DISTRICT COURT APPLIED AN IMPROPER 

EVIDENTIARY STANDARD IN GRANTING 

PLAINTIFFS SUMMARY JUDGMENT. ......c..... 17 

. PLAINTIFFS FAILED TO SATISFY THE 

DEMANDING PREDOMINANCE STANDARD 

NECESSARY TO SUPPORT STRICT SCRUTINY. .... 18 

1. Plaintiffs’ Circumstantial Evidence Derived 
From The Shape And Demographics Of The 
District Was Inadequate To Establish The 
Predominant Use Of Race. ........ cx... 22 

. Defendants’ Direct Evidence Clearly 
Established That Non-Racial Goals Were 

The Predominant Factor In The Design Of 
District 12. This Evidence Was Sufficient 

Not Only To Defeat Plaintiffs’ Motion But 
To Obtain Summary Judgment For 
Defendants. ........ ei TO SNR 24 

. THE DISTRICT COURT WRONGLY DENIED 
THE STATE’S CROSS-MOTION FOR 
SUMMARY JUDGMENT BECAUSE THE 
STATE PRESENTED SUBSTANTIAL AND 
CREDIBLE EVIDENCE THAT DISTRICT 12'S 
SHAPE AND RACIAL DEMOGRAPHICS 
WERE THE RESULT OF LEGITIMATE, 
NON-RACIAL, POLITICAL MOTIVES. ...... 28 

A. THE STATE’S RELIANCE ON VOTING 

BEHAVIOR DOES NOT TRIGGER STRICT 

SCRUTINY. ... vu ain ssw sina sities es tivnin's s sansa 30      



     
vii 

B. THE DISPARITY BETWEEN PARTY 

REGISTRATION AND VOTING BEHAVIOR IN 

NORTH CAROLINA EXPLAINS THE SHAPE 

AND RACIAL DEMOGRAPHICS OF 

DISTRICT 12. . sists dade os ial 31 

. TO DETERMINE THE LEGISLATURE’S 

PREDOMINANT MOTIVATION IN DESIGNING 

A DISTRICT THE COURT MUST CONSIDER 

THE DISTRICTASA WHOLE. .............. 34 

III. APPLICATION OF STRICT SCRUTINY TO 
DISTRICT 12 IS UNWARRANTED BECAUSE 
IT DOES NOT GIVE RISE TO THE KINDS OF 
HARMS WITH WHICH THE SHAW-MILLER 
DOCTRINE IS CONCERNED. .............. 38 

CONCLUSION ..il 0000.0: aici ales 44 

  

    

  

  
   



        

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1X 

TABLE OF AUTHORITIES 

CASES 

Abrams v. Johnson, 521 US. 74 (A997)... ovine sun. 6 

Anderson v. Liberty Lobby, Inc., 

477 U8: 2801086 ii . os aces oi 17,19,26 

Baker v. Carr,369U.S. 186 (1962) ................. 37 

Borden, Inc. v. Spoor, Behrins, Campbell Young, Inc., 
1828 F. Supp 216 (S.DNN. 1993) ........ 00. 00 26 

Burns w Richardson, MAUS. 750966) o.. 8 25 

Bushy. Vera, 517U.8. 9521996) .......... .0 us er 

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ...... 17,18 

Davis v. Bandemer, 478 U.S. 109 (1986) ............. 35 

DeWitt v. Wilson, 515 U.S. 1170 (1995), 
summarily aff’g, 856 F. Supp. 1409 (E.D. Ca. 1994) .. 40 

Edwards v. Aguillard, 482 U.S. 578 (1986) ........ 22,43 

Gaffney v. Cummings, 412 U.S. 735 (1973) ........ 24,42 

Hllinois v. Krull, 480 U.S.340 (1987) ........cvv..... 26 

Johnson v. Miller, 922 F. Supp. 1556 (S.D. Ga. 1995), 
afd, 21 U8, 7401097) .... occu sia inn 4,6 

    

      

  

  

    
 



    

  

X 

Johnson v. Mortham, 915 F. Supp. 1529 
(ND. Fl8, 1003) .. nes va sda Bs cles os 27 

Joint Anti-Fascist Refugee Comm. v. Mc Grath, 
34 U.S. 123 (108) es less avian nov aininin miims sain os 26 

Karcher v. Dageett, 462 U.S. 725 (1983) ....... 0a’ 25 

Lawyer v. Department of Justice, 521 U.S. 567, 
1178. CLRIBOI007) ss vs oars evi s si nssns svn 20, 43 

McDonald v. Board of Election Comm rs of Chicago, 
BOATS. 80241989) '. v. + « «cis vis «Hal wih wives 26 

Miller v. Johnson, 515 U.S. 900 (1995) .......... passim 

Mueller v. Allen, 463 U.S. 388 (1983) ............... 26 

Nunez v. Superior Oil Co.,572 F.2d 1119 (CA5 1978) .. 26 

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ..... 43 

Rosther v. Goldliers. 455 US STQBY) L000... 26 

Shaw v. Hunt (Shaw II), 517 U.S. 899 (1996) .... 2,20,21 

Shaw v. Reno (Shaw I), 509 U.S. 630 (1993) . 19, 38, 39, 40 

Starceski v. Westinghouse Elec. Corp., 
54 F.3d 1080 (CAI T9953) it. ovis consvsnainnsyetininis 43 

Thornburg v. Gingles, 478 U.S.30 (1986) ............ 36 

United States v. Hays, 515 0.8.737(1995) ........... 39 

  

   



  

    

X1 

Vera v. Bush, 933 F. Supp. 1341 (S.D. Tex. 1996) ....... 4 

White v. Weiser, 120.8. 783 (1973) vn sane n se nvuins 25 : 

Wightman v. Springfield Terminal Ry. Co., : 
100 F.3¢. 2284CATA006) : oh... oii Bisu iii ik 18 } 

STATUTES i 

WUC S153. Le Ck dR 1 

MISCELLANEOUS 

11 JAMES WM. MOORE, ET AL., MOORE’S 

FEDERAL PRACTICES 56.034]. ...........5 ervey 17 

11 JAMES WM. MOORE, ET AL., MOORE'S 

FEDERAL PRACTICES 56.10[6]  ....coniev cv eins, 18   
11 JAMES WM. MOORE, ET AL., MOORE'S 
FEDERAL PRACTICE S$ 36, 11J1UD] ..v nuteseniinnsin. 17       

      
  

       



  
  

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STATE APPELLANTS’ BRIEF ON THE MERITS 

Governor James B. Hunt, Jr., and the other state defendants 
below appeal from the final judgment of the three-judge United 
States District Court for the Eastern District of North Carolina, 
dated April 6, 1998, which declared District 12 in the 
congressional redistricting plan enacted by the North Carolina 
General Assembly on March 31, 1997, unconstitutional and 
permanently enjoined defendants from conducting any 
elections under that plan. 

OPINIONS BELOW 

The April 14, 1998 opinion of the three-judge district court, 
which has not yet been reported, appears at JS at 1a.! 

JURISDICTION 

The district court’s judgment was entered on April 6, 1998. 
On April 8, 1998, defendants filed an amended notice of appeal 
to this Court. Jurisdiction of this Court on appeal is § fnvoked 

under 28 U.S.C. § 1253. 

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED 

This appeal involves the Equal Protection Clause of the 
Fourteenth Amendment to the Constitution of the United States 
and Rule 56 of the Federal Rules of Civil Procedure, Summary 

Judgment. See JS at 169a & 171a-173a. 

  

! References to “JS” are to the Appendix of the Jurisdictional 
Statement; references to “JA” are to the Joint Appendix. 

        

  

  

  
  
 



  

Lat al     

  

2 

STATEMENT OF THE CASE 

A. THE 1997 REDISTRICTING PROCESS 

In Shaw v. Hunt (Shaw II), 517 U.S. 899 (1996), this Court 

held that District 12 in North Carolina’s 1992 congressional 

redistricting plan (“the 1992 plan”) violated the Equal 

Protection Clause because race predominated in its design and 

it could not survive strict scrutiny. The matter was remanded 

to the district court for an appropriate remedy. On remand, the 

district court afforded the state legislature an opportunity to 

redraw the state’s congressional plan to correct the 

constitutional defects found by this Court. The General 

Assembly established Senate and House redistricting 

committees to carry out this task. Senator Roy A. Cooper, III, 

a Democrat, was appointed Chairman of the Senate Committee 

and Representative Edwin McMahan, a Republican, was 

appointed Chairman of the House Committee. JS at 70a, 80a. 

~ Like the majority of members on the committees, neither 

Senator Cooper nor Representative McMahan had served on 

the committee that drafted the 1992 plan.’ 

In consultation with the legislative leadership, the 

committees determined that, to pass both the Democratic- 

controlled Senate and the Republican-controlled House, the 

new plan needed to maintain the existing partisan balance in 

the state’s congressional delegation (a six-six split between 

Democrats and Republicans). Because party registration is not 

  

2 Only 11 of the 41 legislators appointed to these committees had 
served on the redistricting committees that drafted the 1992 plan. See 
Bartlett Aff. (CD 47),Vol. I Commentary at 5. 

     



  

  

  

~ 

J 

a reliable predictor of voting behavior, the committees used the 
actual votes cast in a series of elections between 1988 and 1996 
to craft Democratic and Republican districts. These election 
results were the principle factor that guided the committees in 
configuring the plan and in placing precincts within the 
districts. JS at 71a, 73a, 77a, 80a-81a, 81-82a. 

In designing the plan, the committees sought to comply 
with the requirements of the Voting Rights Act, as well as the 
constitutional requirement of population equality. JS at 73a- 
77a, 82a-83a; JA at 63a. Well aware of their responsibilities 
under this Court’s decision in Shaw and its progeny, however, 
the committees ensured that racial considerations did not 
predominate over race-neutral districting criteria. To this end, 
the new plan was designed: (1) to avoid dividing precincts; (2) 
to avoid dividing counties when reasonably possible;* (3) to 

  

* The computerized data base the committees used to draw the plan 
included the total number of people in each precinct who voted for each 
major candidate in the 1988 Court of Appeals election, the 1988 Lieutenant 
Governor election, and the 1990 United States Senate election. See JA at 
101-110. In addition, both the Senate and House committees used precinct- 
by-precinctelection results for a series of statewide elections between 1990 
and 1996 to draw the plan. JS at 73a, 81a. 

* In North Carolina, as in most of the southeasternstates, it is virtually 
impossible to design a congressional map that does not split any of the 
State’s 100 counties, given the constitutional mandate of population 
equality and other legitimate districting concerns. Indeed, all of the 
southeastern states currently include multiple county divisions in their 
congressional plans, and in Florida's congressional plan 26 of 67 counties 
(38.8%) are divided. JS at 109a-110a, 115a-116a. For this reason, the 
committees chose to avoid dividing counties only to the extent reasonably 
possible. 

    

    

    
  
 



  
  

i im Ntamn Varn Fe mend 1 mn Rent 
  

  

4 

eliminate cross-overs, double cross-overs, and other artificial 

means of maintaining contiguity; (4) to group together citizens 
with similar needs and interests; and (5) to ensure ease of 
communication between voters and their representatives. JS at 
72a, 81a, 63a-64a. The committees did not utilize shape or 

mathematical compactness measures in constructing the plan. 

The committees’ strategy proved successful. On March 31, 

1997, the North Carolina legislature enacted a new 

congressional redistricting plan, 1997 Session Laws, Chapter 

11 (“the 1997 plan”), the redistricting law at issue in this case.’ 
The plan was a bipartisan one, endorsed by the leadership of 
both parties in both houses. See JS at 77a, 82a-83a, 64a. 

However, twelve of the seventeen African-American members 

of the House voted against the plan because they believed it did 
not adequately take into account the interests of the State’s 
African-American residents. See JS at 83a. 

B. THE 1997 PLAN 

The 1997 plan creates six “Democratic” districts and six 
“Republican” districts. These districts preserve the partisan 
cores of their 1992 predecessors, yet their lines are significantly 
different: they reassign more than 25% of the State’s 

  

* In this respect, the North Carolina legislature succeeded where other 
similarly - situated state legislatures have not. See, e.g., Johnson v. Miller, 
922 F. Supp. 1556, 1559 (S.D. Ga. 1995), aff'd, 521 U.S. 74 (1997) (on 
remand from this Court’s decision in Miller v. Johnson, 515 U.S. 900 
(1995)) (legislature abdicated its redistricting responsibilities to federal 
district court); Vera v. Bush, 933 F. Supp. 1341, 1342 (S.D. Tex. 1996) (on 
remand from this Court’s decision in Bush v. Vera, 517 U.S. 952 (1996) 
(same). 

  

 



    

  

  

    

  

  

5 

population and nearly 25% of its geographic area. The most 
dramatic changes are in District 12, which contains less than 
70% of its original population and only 41.6% of its original 
geographic area. JS at 130a-132a, 153a, 155a. 

The 1997 plan respects the traditional race-neutral 
districting criteria identified by the legislature. In particular, 
District 12 divides only one precinct (a precinct that is divided 
in all local districting plans as well); it includes parts of only 
six counties; and it achieves contiguity without relying on 
artificial devices like cross-overs and double cross-overs.S It 
creates a district joining together citizens with similar needs 
and interests in the urban and industrialized areas along the 
interstate highways that connect Charlotte and the Piedmont 
Urban Triad, areas in which the bulk of the State’s recent 
population growth has occurred. JS at 63a-67a, 73a-74a, 82a, 
Stuart Aff. (CD 47), Rpt. at 9-10. Of the 12 districts in the 1997 
plan, it has the third shortest travel time (1.67 hours) and the 
third shortest distance (95 miles) between its farthest points, 
making it “highly accessible” for a congressional repre- 
sentative.” JS at 105a. Moreover, because District 12 is built 
around major transportation corridors, it functions effectively 

  

® In contrast, District 12 in the 1992 plan divided 48 precincts: 
included parts of 10 counties; and achieved contiguity only by heavy 
reliance on artificial devices like cross-overs and double cross-overs. See 
JS at 63a. 

’ In contrast, District 12 in the 1992 plan had a travel time of 2.97 
hours and a travel distance of 162.4 miles between its farthest points, 
ranking it in the bottom one-third of North Carolina’s 12 districts based on 
time and distance. See JS at 105a-106a. 

  

    

  
 



  
  

  

  

6 

for representatives and for constituents.!? Mathematical 

measures of geographic compactness were not among the 

criteria adopted by the legislature in designing the new plan. 

Even so, District 12’s geographic compactness is significantly 

improved over the 1992 plan, though it remains relatively low.’ 

Seventy-five (75%) percent of District 12’s registered 

voters are Democrats. More importantly, at least 62% of the 

district’s registered voters voted for the Democratic candidate 

in the 1988 Court of Appeals election, the 1988 Lieutenant 

Governor election, and the 1990 United States Senate election. 

JS at 99a. 

District 12 is not a majority-minority district by any 

measure: only 46.67% of its total population, 43.36% of its 

voting age population, and 46% of its registered voter 

  

8 See Webster Report, JS at 124a-130a, 134a (noting that District 12’s 
“focus upon major transportation corridors” makes its travel time 
compactness substantially better than that of many districts that score higher 
under mathematical measures of compactness). District 12 is similar in 
concept to Georgia's new Eleventh Congressional District, drawn by a 
three-judge district court when the Georgia legislature could not agree on 
a new plan in the wake of this Court’s 1995 decision in Miller. The 
Eleventh District stretches from suburban Atlanta to the North Carolina and 
Tennessee borders, connecting parts of 13 different counties and splitting 
six of them. Because the district is built around the “connecting cable” of 
Interstate 85, however, and has a distinct “urban/suburban flavor,” its 

residents have “a palpable community of interests.” Johnson v. Miller, 922 
F. Supp. at 1564. In Abrams v. Johnson, 521 U.S. 74 (1997), this Court 
upheld the Eleventh District as drawn. 

? District 12’s dispersion compactness measure in the 1997 plan is 
142% improved over the 1992 plan and its perimeter compactness measure 
is 193% improved. See JS at 127a -128a, 143a-146a. 

  

 



  

7 

population is African-American." Race was not a dominant or 
controlling factor in the development or enactment of the plan. 
JS at 77a, 83a, 87a-88a. Partisan voting patterns, not race, were 
the predominant basis for assigning voters to the district.!! See 
JS at 66a-67a, 77a, 82a-83a, 99a. 

Because 40 of North Carolina’s 100 counties are subject to 

the preclearancerequirementsof Section 5 of the Voting Rights 
Act, the legislature submitted the 1997 plan to the United 

States Department of Justice for preclearance. The Department 
precleared the plan on June 9, 1997. 

C. LEGAL CHALLENGES To THE 1997 PLAN 

Equal protection challenges to the 1997 plan were first 
raised in the remedial phase of the Shaw litigation, when the 
State submitted the plan to the three-judge court to determine 

whether it cured the constitutional defects in the earlier plan. 

Two of the plaintiffs who challenge the 1997 plan in the instant 

  

In contrast, 56.63% of the total population, 53.34% of the voting age 
population, and 53.54% of the registered voter population of District 12 in 
the 1992 plan was African-American. See JA at 111-117. 

"District 1 is another of the six “Democratic” districts established by 
the 1997 plan. Unlike District 12, District 1 is a majority-minority district 
by one measure: 50.27% of its total population is African-American. Like 
District 12, District 1 respects the traditional race-neutral redistricting 
criteria identified by the legislature. It contains no divided precincts, divides 
only 10 counties and achieves contiguity without relying on artificial 
devices like cross-overs and double cross-overs. It creates a district joining 
together citizens in the mostly rural and economically depressed counties 
in the State’s northern and central Coastal Plain. See JS at 63a-67a, 73a-74a, 
82a, JA at 101-105, Goldfield Aff. (CD 47), Rpt. at 8-12. 

    
  
 



  

8 

case - Martin Cromartie and Thomas Chandler Muse - 

participated as parties plaintiff in that remedial proceeding. So 
did Robinson Everett, who was both a named plaintiff and the 

plaintiffs’ attorney in the Shaw case. 

In that remedial proceeding, Everett and his co-plaintiffs 

(“the Shaw plaintiffs”) were given an opportunity to litigate any 

constitutional challenges they might have to the 1997 plan, 

which the State had enacted under the Shaw court’s injunction. 

They elected not to avail themselves of that opportunity. 

Exercising its authority to review the State’s proposed 

remedial plan, the court ruled that the plan was “in conformity 

with constitutional requirements” and that it was an adequate 

remedy for the constitutional defects in the prior plan “as to the 

plaintiffs and plaintiff-intervenors in this case.” JS at 167a, 

160a. On that basis, the court entered an order approving the 

plan and authorizing the state defendants to proceed with 

congressional elections under it. Everett and his co-plaintiffs 

took no appeal from that order. | 

Having forgone an opportunity to litigate their 

constitutional challenges to the 1997 plan before the three- 

judge court in Shaw, Everett and his co-plaintiffs sought to 

have those same claims adjudicated by a different three-judge 

court. They did so by amending a complaint in a separate 

lawsuit they had previously filed against the same defendants. 

In that amended complaint, Cromartie, Muse, and four persons 

who had not been named as plaintiffs in Shaw (“the Cromartie 

plaintiffs”) - all represented by Everett - asserted racial 

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9 

gerrymandering challenges to Districts 1 and 12 in the 1997 

plan. 

On January 15, 1998, the Cromartie case was assigned to 

a three-judge panel. On January 30, 1998, four days before.the 

close of the candidate filing period, the Cromartie plaintiffs 

moved for a preliminary injunction halting all further elections 

under the 1997 plan. Several days later, they also moved for 

summary judgment. The state defendants filed a cross-motion 

for summary judgment. On March 23, 1998, the last day on 

which the parties were allowed to file materials in support of 

the motions for summary judgment, the Cromartie plaintiffs 

filed their expert witness affidavits and various statistical 

  

2 In their Jurisdictional Statement, the state defendants challenged the 
Jistrict court’s ruling that the final judgment entered by the district court on 
'emand from this Court’s decision in Shaw II - a judgment which found the 
1997 plan constitutionaland authorized the State to proceed with elections 
ander it - did not preclude the constitutional challenges to that very plan that 

- re being asserted in this parallel proceeding. The state defendants continue 
0 believe that the District 12 claims asserted in this case are barred by that 
‘inal judgment because they are asserted by persons who must - in fairness - 
de considered “privies” of at least one of the named plaintiffs in Shaw, 
Robinson Everett. Because the policies behind the doctrine of claim 
sreclusion are at their most compelling when the claims in question seek to 
:njoin a state’s electoral processes, and the entry of two dramatically 
nconsistent judgments against a state in parallel litigation involving such 
:losely affiliated plaintiffs is an affront to the integrity of the federal judicial 
iystem, this Court should craft a rule of privity that would bar these claims. 
he state defendants recognize that the record, as it now stands, may be 
nsufficient to permit this Court to undertake that task. Accordingly, they 

1ave elected not to press that argument further on this appeal, but to save 
t for remand, should this Court deem a remand necessary for other reasons.   

  

   



  

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information, including maps showing partisan registration by 

precinct in portions of District 12.13 

Eight days later, before either party had conducted any 

discovery and without an evidentiary hearing, the three-judge 

court heard brief oral arguments on the pending motions for 

preliminary injunction and summary judgment. Three days 

after that, on April 3, 1998, the court, with Circuit Judge Sam 

J. Ervin, III dissenting, granted the Cromartie plaintiffs’ 

motion for summary judgment, declared District 12 in the 1997 

plan unconstitutional, and permanently enjoined the state 

defendants from conducting any primary or general elections 

under the 1997 plan. JS at 45a. The court’s order did not 

explain the basis for its decision, stating only that 

“[m]emoranda with reference to [the] order will be issued as 

soon as possible.”* JS at 46a. 

  

> Prior to that point, plaintiffs only had filed several incompetent 
affidavits of laypersons with no personal knowledge about the redistricting 
process. See JA at 47-83 and at 137-155. Had they been afforded an 
adequate opportunity to respond to plaintiffs’ eleventh hour showing, 
defendants could have cleared up the court’s misunderstandingof plaintiffs’ 
irrelevant registration data (that the redistricting committees had not used 
in fashioning the 1997 plan) with the more probative election results (that 
the committees in fact relied upon). See Argument II, infra. 

4 The state defendants immediately noticed an appeal to this Court. 
Since the elections process under the 1997 plan was already underway and 
the primary election only a few weeks away, they asked the district court to 
stay its April 3rd order pending disposition of that appeal. When it refused 
to do so, the state defendants made application to Chief Justice Rehnquist 
for a stay of the same order. The Chief Justice referred that application to 
the full Court, which denied it on April 13, 1998. When this Court denied 
the stay application, the district court had yet to issue its opinion explaining 
its order and permanent injunction. 

  

 



  

  

  

  

11 

D. THE THREE-JUDGE DISTRICT COURT’S OPINION 

On April 14, 1998, the three-judge court issued an opinion 

explaining the basis for its order and injunction of April 3, 
1998. JS at 1a-44a. The court held that the Cromartie plaintiffs 

were entitled to summary judgment on their challenge to 

District 12, because the “uncontroverted material facts” 

established that the legislature had “utilized race as the 

predominant factor in drawing the District." JS at 21a-22a. 

Unlike the lower courts whose “predominance” findings this 

Court upheld in Miller, Bush, and Shaw II, the court below did 

not base its finding on any direct evidence of legislative 

motivation; instead, it predicated its ruling of constitutional 

invalidity entirely on an inference drawn from the district’s 

shape and racial demographics. JS at 19a-22a. 

The court reasoned that District 12 was “unusually shaped,” 

that it was “still the most geographically scattered” of North 

Carolina’s twelve congressional districts, that its dispersion and 

perimeter compactness measures were lower than the mean for 

the twelve districts in the plan, that it “include[s] nearly all of 
the precincts with African-Americanpopulation proportions of 

over forty percent which lie between Charlotte and 

Greensboro,” and that when it splits cities and counties, it does 

so “along racial lines.” The court concluded that these so-called 

“facts,” established - as a matter of law - that the legislature had 

  

'* The court also held that the Cromartie plaintiffs were nor entitled to 
summary judgment on their challenge to District 1, the only majority- 
minority district in the 1997 plan. JS at 22a-23a. 

  

  

  

     



  

  

12 

“disregarded traditional districting criteria” and “utilized race 

as the predominant factor” in designing District 12.” JS at 20a- 

22a. 

Although the court acknowledged that the state defendants 

had produced evidence that partisan political preference, rather 

"than race, was the predominant factor in the design of District 

12, it chose not to credit this evidence because “the legislators 

excluded many heavily-Democraticprecincts from District 12, 

even though those precincts immediately border the District.” 

JS at 20a. 

Judge Ervin dissented. At the outset, he noted that the : 

plaintiffs in this case - unlike those in Miller, Bush, and Shaw 

II - had presented no direct evidence that the legislature was 

motivated predominantly by racial considerations in designing 

District 12, but relied solely on an inference they claimed could 

‘be drawn from the district’s shape and racial demographics. JS 

at 26a-29a. He found this inference decidedly weaker than 

those in the Court’s prior cases, because District 12 was not a 

majority-minority district, it had not been drawn to comply 

with the Department of Justice’s invalid “black maximization” 

“policy, and its shape was “not so bizarre or unusual . . . that it 

cannot be explained by factors other than race.”JS at 25a-26a, 

30a-35a. | 

  

16 In reaching this conclusion, the court relied entirely on maps offered 
by plaintiffs showing the Democratic registration of precincts in Guilford, 
Forsyth and Mecklenburg Counties. JS at 8a-9a. (citing McGee Aff. (CD 
61), Exhibits N, O and P). The uncontested evidence presented by the State, 

however, indicated that the legislature used election results, not party 
registration, to measure the partisan nature of the districts. JS at 73a, 81a. 

   



  

  

13 

In addition, Judge Ervin noted, the state defendants had 

rebutted the Cromartie plaintiffs’ circumstantial evidence with 

“convincing” evidence that partisan political preference, rather 

than race, had been the predominant factor in drawing the 

district.” JS at 25a-26a, 34a-36a. According to Judge Ervin, the 

case law required the court to accept this evidence as true.” JS 

at 27a. 

  

"7 In addition to presenting affidavits from the legislatorswho drew the 

plan, the state defendants presented the expert statistical evidence of Dr. 

David W. Peterson. Dr. Peterson conducted a comprehensive statistical 

analysis of the correlation between District 12’s boundary and the race, 

party affiliation, and political voting patterns of the voters in the precincts 

that touch along the inside and outside of that boundary. He concluded that 

the boundary’s path “can be attributed to political considerations with at 

least as much statistical certainty as it can be attributed to racial 

considerations,” that the statistical evidence “support[s] the proposition that 

creation of a Democratic majority in District Twelve was a more important 

consideration in its constructionthan was the creation of a black majority,” 

and that “there is no statistical indication that race was the predominant 
factor determining the border.” See JS at 872-88a, 99a. 

18 As Judge Ervin correctly observed, the Cromartie plaintiffs’ 

evidence that District 12 excluded certain precincts with a large number of 

registered Democrats did not undermine the credibility of this evidence, for 

several reasons. First, it consisted not of a comprehensive examination of 

the district’s entire circumference, but of selective examples. Second, it 

ignored the fact that the legislators who drew the plan said they used actual 

election results, rather than party registration figures, to construct the 

district’s lines in recognition of the fact “that voters often do not vote in 

accordance with their registered party affiliation.” JS at 33a-36a. Indeed, he 

found the evidence that race had predominated in the design of District 12 

so weak that he would have entered summary judgment against the 

Cromartie plaintiffs on that claim. JS at 43a-44a. :   
  

  

     



  

  

  
  

  

14 

E. THE INTERIM PLAN 

The district court allowed the General Assembly 30 days to 
redraw the state’s congressional redistricting plan to correct the 
defects it had found in the 1997 plan. On May 21, 1998, the 
General Assembly enacted an interim congressional 
redistricting plan, 1998 Session Laws, ch. 2 (“the Interim 
Plan”), and submitted it to the district court for approval. The 
Interim Plan specifically provides that it is effective for the 
1998 and 2000 elections only if this Court fails to reverse the 
district court decision holding the 1997 plan unconstitutional. 
The Department of Justice precleared the Interim Plan on June 
8, 1998. On June 22, 1998, the district court entered an order 
tentatively approving the Interim Plan and authorizing the State 
to proceed with the 1998 elections under it.'* JS at 175a-180a. 

SUMMARY OF ARGUMENT 

The judgment below is riddled with errors; it cannot stand. 
Initially, in holding that plaintiffs were entitled to summary 
judgment on their District 12 claim, ‘the district court | 
committed three critical errors. First, the court improperly 
required the state defendants to bear the burden of persuasion 

. at summary judgment, when this Court’s cases make clear that 

burden lies with the plaintiffs. Second, the court found the 

predominance standard satisfied by evidence falling far short 
of that which this Court has previously found sufficient to 
impugn the considered choices of a state legislature. Third, the 

  

'* On July 17, 1998, plaintiffs noticed an appeal from that order. This 
Court has yet to act on that appeal. 

  

 



  
rpm TTT ET TIN a ror mre pve   AT AS a am Ct gem 

  

15 

court failed to accord the testimony of state legislators a 
presumption of truthfulness and engaged instead in unfounded 
second-guessing of their motivations, which this Court’s 
precedents forbid it to do. Each of these errors independently 
provides sufficient basis for reversing the lower court’s entry 
of summary judgment for the plaintiffs. 

The uncontroverted evidence in the summary judgment 
record established that the legislature designed the districting 
plan as a whole, and District 12 in particular, to preserve the 
existing partisan balance in the State’s congressional 
delegation, and that it used actual election results, not voter 
registration data, to accomplish this purpose. In denying the 
defendants’ motion for summary judgment, the district court 
made at least two critical errors. First, it relied on voter 
registration data, which the legislature did not use in designing 
District 12. Second, it relied on limited information about a 
handful of isolated precincts rather than carefully and fully 
examining the design of the district as a whole. Had the district 
court not made these errors, but correctly applied the law to the 
uncontroverted facts before it, it would have been compelled to 
enter summary judgment for the defendants. 

North Carolina’s District 12 is a majority-majority district 
with a substantial minority population. Its boundaries were 
drawn on the basis of actual voting patterns in order to create 
a plan that would preserve the existing partisan balance in the 
State’s congressional delegation. Such a district, even if 
somewhat oddly shaped, does not give rise to any of the harms 
with which the Shaw doctrine is concerned. Because applying 
the strict scrutiny of Shaw to such a district represents a 

OBER REZR RSET WEAR SON PY 

  

  

 



    
  

  

16 

substantial - and indefensible - extension of this Court’s case 

law, the district court’s decision must be reversed. 

ARGUMENT 

I. THE DISTRICT COURT’S JUDGMENT SHOULD BE 

REVERSED BECAUSE PLAINTIFFS FAILED TO 

CARRY THEIR BURDEN OF PROVING THAT 

RACE WAS THE PREDOMINANT FACTOR IN THE 

DESIGN OF DISTRICT 12. 

In concluding that the defendants’ stated purposes for 

drawing the boundaries of District 12 were false, and that race 

was instead the predominant motivating factor, the district 

court committed at least three manifest errors. First, the court 

‘improperly required the state defendants to bear the burden of 

persuasion at summary judgment, when this Court’s precedents 

make clear that burden lies with the plaintiffs. Second, the 

court found the Miller predominance standard satisfied on a 

significantly lower evidentiary showing than this Court has 

required in previous redistricting cases. Third, the court failed 

to accord the State’s testimony a presumption of truthfulness, 

a presumption mandated by this Court’s precedents. In light of 

these fatal deficiencies, the district court’s grant of summary 

judgment to plaintiffs should be overturned. 

   



  

    

17 

A. THE DISTRICT COURT APPLIED AN IMPROPER 

EVIDENTIARY STANDARD IN GRANTING 

PLAINTIFFS’ SUMMARY JUDGMENT. 

A motion for summary judgment must be resolved by 

reference to the evidentiary burdens that would apply at trial. 

Andersonv. Liberty Lobby, Inc., 477 U.S. 242, 250-54 (1986). 

When a party seeks summary judgment on an issue on which 

he will have the burden of persuasion at trial, he is entitled to 

prevail only if the evidence in the summary judgment record is 

such that no reasonable fact finder hearing that evidence could 

fail to find for him on that issue.” See id. at 252-55. In other 

words, the movant’s evidence, viewed in the light most 

favorable to his opponent, must be “so one-sided” that he 

would be entitled to judgment as a matter of law at trial. See id. 

at 249-52 (explaining that the summary judgment standard 
“mirrors” the Rule 50(a) standard for a directed verdict at trial). 

Under this stringent standard, a party who has the burden of 

persuasion at trial is seldom entitled to summary judgment in 

his favor. See 11 JAMES WM. MOORE ET AL., MOORE’S 

FEDERAL PRACTICE § 56.03[4],at 56-37 through 56-38 & n.54; nl 

id. § 56.11[1][b], at 56-90 through 56-91 (3d ed. 1997). ) SE 

  
In this case, the burden of persuasion at trial for proving 

that race was the predominant factor in the design of District 12 

  

20 - By contrast, a party who will not have the burden of persuasion at 
trial may obtain summary judgment simply by showing that his opponent 
has insufficient evidence to permit a reasonable finder of fact to return a 
verdict in his favor. See Celotex Corp. v. Catrett, 477 U.S. 317, 324-26 

(1986). 

  

   



  

  

18 

clearly rested with the plaintiffs. See Miller v. Johnson, 515 

U.S. 900, 916 (1995) (the plaintiff bears the burden of proving 

the race-based motive). The district court ignored this 

allocation of the burden of proof in concluding that the 

plaintiffs were entitled to summary judgment. Indeed, a careful 

reading of the court’s opinion makes clear that despite the 

court’s assertions, it analyzed plaintiffs’ motion under the 

standard that applies to parties who will not have the burden of 

persuasion at trial.?! See JS at 21a (citing Celotex Corp. v. 

Catrett, 477 U.S. 317, 324 (1986)). On this basis alone, the 

court’s decision should be overturned. 

B. PLAINTIFFS FAILED TO SATISFY THE DEMANDING 

PREDOMINANCE STANDARD NECESSARY To 

SUPPORT STRICT SCRUTINY. 

In addition to misallocating the burden of persuasion, the 

district court failed to require a sufficient evidentiary showing 

that race - and not neutral redistricting criteria - was the 

predominant factor motivating the State’s redistricting plan. 

Had the district court applied the proper standard, it could not 

  

21 That the court also had before it the state defendants’ cross-motion 
for summary judgment should have had no bearing on its analysis of the 
plaintiffs’ motion. See 11 JAMES WM. MOORE ET AL., MOORE’S FEDERAL 
PRACTICE § 56.10[6] (3d ed. 1997) (cross-motions for summary judgment 
must be evaluated independently,according to the usual summary judgment 
standard, and the denial of one does not imply the grant of the other); 
Wightmanv. Springfield Terminal Ry. Co., 100 F.3d. 228, 230 (CA1 1996) 
(cross-motions for summary judgment do not alter basic Rule 56 standard, 
nor do they necessarily warrant the grant of summary judgment to either 

party). 

   



  

19 

have justified a grant of summary judgment. See Anderson, 477 

U.S. at 252-55. 

In Shaw I, this Court first recognized that a facially race- 

neutral electoral districting plan could, in certain exceptional 

circumstances, be a “racial classification” subject to strict 

scrutiny under the equal protection clause. Shaw v. Reno (Shaw 

I), 509 U.S. 630, 642-44, 646-47, 649 (1993). Two years later, 

in Miller, this Court established a narrow condition for the 

application of strict scrutiny: compelling evidence “that race 

for its own sake, and not other districting principles, was the 

legislature’s dominant and controlling rationale in drawing its 

district lines.” 515 U.S. at 913 (emphasis added). To satisfy this 

standard at the summary judgment stage, a plaintiff must prove 

that the evidence, viewed in the light most favorable to the 

defendant, demonstrates that the legislature “subordinated 

traditional race-neutral districting principles . . . to racial 

considerations,” such that race was “the predominant factor” in 

the design of the districts. Id. at 916. | 

In Miller, this Court recognized that “[f]ederal court review 

of districting legislation represents a serious intrusion on the 

most vital of local functions,” that redistricting legislatures are 

almost always aware of racial demographics, and that the 

“distinction between being aware of racial considerations and 

being motivated by them” is often difficult to draw. 515 U.S. 

at 915-16. For these reasons, this Court directed the lower 

courts to “exercise extraordinary caution” in applying the 

predominancetest. Id. at 916; see id. at 928-29 (O’Connor, J., 

concurring) (stressing that the Miller standard is a “demanding” 

    
 



  

  

20 

one, which subjects only “extreme instances of [racial] 

gerrymandering” to strict scrutiny). 

In its various opinions in Bush, this Court made clear that 

neither proof the legislature considered race as a factor in 

drawing district lines nor evidence the legislature neglected 

traditional districting criteria is sufficient to trigger strict 

scrutiny. Bush v. Vera, 517 U.S. 952, 958, 962 (1996) (plur. 

op.). Instead, strict scrutiny applies only when the plaintiff 

establishes both that (1) the State substantially neglected 

traditional districting criteria in drawing district lines, and (2) 

that it did so predominantly because of racial considerations.” 

Id. at 962-63 (plur. op.); id. at 993-94 (O’Connor, J, 

concurring). BL 

In this case, plaintiffs clearly failed to meet their 

evidentiary burden. A comparison of the evidence proffered in 

the Court’s prior cases with that offered by the plaintiffs in this 

case bolsters this conclusion. For instance, before applying 

strict scrutiny and overturning Texas’ redistricting plan in 

Bush, a plurality of the Court found not only that Texas’ district 

was irregular in shape, but also that there was “substantial 
direct evidence of the legislature’s racial motivations.” 517 

U.S. at 960 (emphasis added). This evidence included the 

state’s preclearance report to the Justice Department, which 

  

2 Since Bush, this Court has twice applied this same formulation of 
the threshold test for strict scrutiny. See Lawyer v. Department of Justice, 
521 U.S. 567, _, 117 S. Ct. 2186, 2194-95 (1997) (finding standard not 
satisfied); Shaw v. Hunt, (Shaw II), 517 U.S. 899, 906-07 (1996) (finding 
standard satisfied). 

   



  

  

21 

“report[ed] a consensus within the legislature that the three new 

congressional districts ‘should be configured in such a way as 

to allow members of racial, ethnic, and language minorities to 

elect Congressional representatives.’ Id. Because of this goal, 

the report acknowledged, three majority-minority districts were 

created. See id. at 960-61. In addition, the plurality found that 

Texas legislatorshad used an unprecedented computer program 

that “permitted redistricters to manipulate district lines on 

computer maps,” making “more intricate refinements on the 

basis of race than on the basis of other demographic 

information.” Id. at 961-62. Taken together,” the plurality held, 

these findings justified the application of strict scrutiny. 

Likewise, in Miller and Shaw II, the Court applied strict 

scrutiny only after finding that the districts’ bizarre geographic 

shapes, coupled with the state defendants’ admissions that they 

had intentionally set out to create majority-minority districts, 

established that race was the predominant factor in the design 

of those districts. See Miller, 515 U.S. at 917-18 (citing 

Georgia’s admission that it “would not have added those 

portions of” the counties “but for the need to include additional 

black population in that district”); Shaw II, 517 U.S. at 906 

(citing the State’s preclearance submission, which 

  

¥ Notably, the Court emphasized that it was not holding that “any one 
of these factors is independently sufficient to require strict scrutiny.” Bush, 
517 U.S. at 962. 

# Justices Thomas and Scalia, who joined in the judgment, held that 
the state’s admission that it intentionally created majority-minority districts 
was sufficient to justify strict scrutiny. See id. at 1002. No such admission 
has been made in this case. 

  

  

 



  

  

22 

acknowledged that the district’s “overriding purpose” was to 

create two majority-minority districts). No such evidence is 

present in this case. . 

1. . Plaintiffs’ Circumstantial Evidence Derived 

From The Shape And Demographics Of The 

District Was Inadequate To Establish The 

Predominant Use Of Race. 

In this case, the only evidence in the record that could even 

remotely support the plaintiffs’ assertion of a predominantly 

racial motive in District 12’s design was an inference the 

plaintiffs asked the court to draw from the district’s shape and 

racial demographics.” This evidence was legally insufficient to 

sustain plaintiffs’ burden on summary judgment. While District 

12 is admittedly less compact than the State’s other districts, it 

covers a significantly smaller radius than the State’s earlier 

plan, is contiguous and roughly equal throughout in length, and 

it does not rely on artificial devices such as cross-overs and 

double cross-overs to achieve that contiguity. See JS at 36a 

(Ervin, J., dissenting) (citing Affidavit of Dr. Gerald R. 

Webster). Of the 12 districts in the 1997 plan, it “has the third 

  

25 Plaintiffs presented various maps and demographic data, as well as 

the affidavits of several experts who relied on the same evidence of shape 

and racial demographicsto opine that race was the predominant factor used 

by the State to draw the boundaries of the congressionaldistricts. See, e.g., 

Declaration of Dr. Ronald E. Weber JA at 219-20. But as this Court has 

explained in another context, “the postenactment testimony of outside 

experts is of little use” in determining the legislature’s purpose in enacting 

a particular statute, when none of those experts “participated. in or 

contributed to the enactment of the law or its implementation.” Edwards 

v. Aguillard, 482 U.S. 578, 595-96 (1986). 

   



  

  

23 

shortest travel time (1.67 hours) and the third shortest distance 

(95 miles) between its farthest points.” JS at 105a. 

Equally as important, unlike in Bush, Miller or Shaw II, the 

record itself is devoid of any support for plaintiffs’ assertion 

that race was the overarching motivation for the district’s 

design. District 12 was not the product of the Department of 

Justice’s invalid “black maximization” policy. There were no 

concessions of racial motivations by the state defendants; there 

were no race-based admissions in the myriad of indicators 

traditionally used to glean legislative intent - the plain language 

of the legislation, the committee hearings, the committee 

reports, the floor debates, the State’s § 5 submissions - and 

there. were no acknowledgments in the post-enactment 

statements of those who participated in the drafting or 

enactment of the plan that race was a motivating factor. See JS 

at 33a (Ervin, J., dissenting) (“Plaintiffs’ have proffered neither 

direct nor circumstantial evidence that the General Assembly 

was pressured by the Department of Justice to maximize 

minority participation when it redrew the congressional 

districts in 1997.”). Because plaintiffs’ showing that race was 

the predominant factor in the design of District 12 was 

deficient, they were not entitled to summary judgment. 

  

  

 



  

  

24 

Defendants’ Direct Evidence Clearly 

Established That Non-Racial Goals Were The 

Predominant Factor In The Design Of 

District 12. This Evidence Was Sufficient Not 

Only To Defeat Plaintiffs’ Motion But To 

Obtain Summary Judgment For Defendants. 

Far from supporting plaintiffs’ position, the record contains 

substantial evidence that race was anything but a predominant 

factor in the design of District 12. The district court’s decision 

thus warrants reversal not only because it sided improperly 

with plaintiffs but because it should have granted defendants’ 

cross-motion for summary judgment. 

The North Carolina legislature, exercising the state’s right | 

to design its own congressional districts, selected a number of 

traditional - and race-neutral - districting criteria to be used in 

constructing the 1997 plan: contiguity, respect for political 

subdivisions, respect for voters’ needs and interests, 

preservation of the partisan balance in the State’s congressional 

delegation, avoidance of contests between incumbents, and, to 

the extent possible while curing the constitutional defects in the 

prior plan, preservation of the cores of prior districts. JS at 73a- 

74a, 8la. The Court previously has found use of such 

districting criteria entirely legitimate. 

  

26 This Court has held that a state may draw district lines to allocate 
seats proportionately to major political parties. See Gaffney v. Cummings, 
412 U.S. 735, 751-54 (1973); see also Bush, 517 U.S. at 963-64, (opinion 
of O'Connor, J., joined by Rehnquist, C.J. and Kennedy, J). This Court also 
has held that both preserving the cores of prior districts and avoiding 
contests between incumbents are legitimate state districting goals. See 

   



  

25 

The State’s lawful, non-racial motivations were confirmed 

by affidavits from the legislators who headed the legislative 

committees that drew the 1997 plan and shepherded it through 

the General Assembly. These legislators testified under oath 

that they and their colleagues were well aware, when they 

designed and enacted the 1997 plan, of the constitutional 

limitations imposed by this Court’s decisions in Shaw and its 

progeny, and that they therefore took pains to ensure that race 

was not the predominant - or even a significant - factor in the 

design of any of its districts. Rather, the legislature’s 

overarching goal was preservation of the six-to-six Democratic 

and Republican electoral balance. Maintenance of the existing 

electoral balance was essential to gain passage of any new 

redistricting plan since the Senate was Democratic-controlled 

and the House was dominated by Republicans. See JS at 70a- 

72a, 81a. As Senator Cooper stated, “I knew that any plan 

which gave an advantage to Democrats faced certain defeat in 

the House while any plan which gave an advantage to 

Republicans faced certain defeat in the Senate.” JS at 73a. 

“Preserving the existing partisan balance, therefore, was the 

only means by which the General Assembly could enact a plan 

as required by the Court.” Id. See also JS at 37a (Ervin, J., 

dissenting) (noting that District 12 had to be drawn to protect 

incumbents). 

  

Karcher v. Daggett, 462 U.S. 725, 740 (1983); White v. Weiser, 412 U.S. 
783, 791, 797 (1973); Burns v. Richardson, 384 U.S. 73, 89 n.16 (1966); 
see also Bush, 517 U.S. at 964 (opinion of O’Connor, J., joined by 
Rehnquist, C.J. and Kennedy, J). 

      
  
 



  

  

    

    

26 

At the summary judgment stage, the district court was 

obligated to accept this testimony as truthful. See Liberty 

Lobby, 477 U.S. at 255 (“The evidence of the non-movant is to 

be believed, and all justifiable inferences are to be drawn in his 

favor”). But instead the court did precisely the opposite - it 

assumed that these North Carolina legislators had lied under 

oath in order to hide a racial agenda.” In so doing, the court 

only compounded its errors. As this Court has held repeatedly, 

courts may not blithely attribute unconstitutional motivations 

to state legislators. See Miller, 515 U.S. at 915-16; Mueller v. 

Allen, 463 U.S. 388, 394 (1983).% This Court has made clear 

that these cautionary principles are fully applicable in Shaw 

cases. Miller, 515 U.S. at 915 (“Although race-based 

decisionmaking is inherently suspect, until a claimant makes a 

showing sufficient to support that allegation the good faith of 

a state legislature must be presumed.” (citation omitted)); id. at 

  

27 That the finder of fact at trial would be the three-judge panel, rather 

than a jury, does not excuse the court’s failure to credit this testimony. Even 

in a non-jury case, a court ruling on a motion for summary judgment is 

obligated to accept the testimony of the nonmoving party’s witnesses as 

true. See, e.g., Nunez v. Superior Oil Co., 572 F.2d 1119, 1123-25 (CAS 

1978); Borden, Inc. v. Spoor, Behrins, Campbell, Young, Inc., 828 F. Supp. 

216, 218-19 (S.D.N.Y. 1993). 

28 When a federal court is called upon to judge the constitutionality of 

an act of a state legislature, it must “presume” that the legislature “act[ed] 

in a constitutionalmanner,” Illinois v. Krull, 480 U.S. 340, 351 (1987); see 

McDonald v. Board of Election Comm'rs of Chicago, 394 U.S. 802, 809 

(1969), and remember that it ““is not exercising a primary judgment but is 

sitting in judgment upon those who also have taken the oath to observe the 

Constitution.” Rostkerv. Goldberg, 453 U.S. 57, 64 (1981) (quoting Joint 

Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 164 (1951) 

(Frankfurter, J., concurring)). 

    

    

 



  

  

27 

916 (courts adjudicating Shaw claims are obligated to accord 

the challenged plan “the presumption of good faith that must be 

accorded [all] legislative enactments”).Indeed, the presumption 

of legislative good faith has even greater force in redistricting 

cases, given the “sensitive” and highly political nature of the 

redistricting process and the “serious intrusion” on state 

political judgments that federal court review of state districting 

legislation entails. See id. at 916 (admonishing lower courts “to 

exercise extraordinary caution in adjudicating claims that a 

State has drawn district lines on the basis of race” (emphasis 

added)); id. at 916-17 (directing courts to bear in mind the 

demanding nature of “the plaintiff's burden of proof at trial” 

and “the intrusive potential of judicial intervention into the 

legislative realm” when assessing the adequacy of a plaintiff's 

showing at the summary judgment stage).” 

  

» Precisely for these reasons, lower federal courts entertaining Shaw 
claims have consistently refused to resolve the “predominance” issue 
without a full evidentiary hearing, except in cases where the defendants 
have conceded it. Indeed, the decision below is one of only two reported 
decisions in which a contested issue of “predominance” has been resolved 
in the plaintiffs’ favor on summary judgment. The other, that of the three- 
judge panel in Johnson v. Mortham, 915 F. Supp. 1529 (N.D. Fla. 1995), 
also drew a vigorous dissent. See id. at 1560, 1563-68 (Hatchett, Circuit 

Judge, dissenting) (calling it “grave error” to resolve the “predominance” 

issue in plaintiffs’ favor on summary judgment, given the “complex and 

important” nature of the case and Miller's “directive” to use “extraordinary 

caution in adjudicating claims that a state has drawn district lines on the 

basis of race’) (emphasis in original)). The error committed here was even 

graver, for the plan being challenged in Johnson had been drawn by a court, 

rather than a legislature, making the “predominance” issue considerably less 

difficult than it is here - and the need for deference less pressing than that 

owed by a federal court to a state legislative branch. 

  

    

  
  

 



  

  

  

  
  

  

28 

In short, there was simply no justification for the district 

court to ignore this Court’s directives and grant plaintiffs, 

rather than defendants, summary judgment. That it did so on 

such a weak showing - based on imputed motives and without 

full evidentiary hearing - is even less defensible. The decision 

should be overturned. 

II. THE DISTRICT COURT WRONGLY DENIED THE 

STATE’S CROSS-MOTION FOR SUMMARY 

JUDGMENT BECAUSE THE STATE PRESENTED 

SUBSTANTIAL AND CREDIBLE EVIDENCE THAT 

DISTRICT 12°S SHAPE AND RACIAL 

DEMOGRAPHICS WERE THE RESULT OF 

LEGITIMATE,  NON-RACIAL, POLITICAL 

MOTIVES. 

Although partisan voting preferences determined the 

boundaries of District 12, the district court condemned the 

district on the basis of party registration data not relied on by 

the legislature. The district court’s conclusion that race was the 

predominant factor is flawed because the court failed to 

distinguish between plaintiffs’ irrelevant partisan registration 

figures and the actual partisan voting preferences demonstrated 

by voting results - the information in fact used by Senator 

Cooper and Representative McMahan in the redistricting 

process. This error was compounded by the court’s rejection of 

a statistically reliable and systematic analysis of the district as 

a whole in favor of picking and choosing a few isolated 

examples from around the district. Because of these errors, the 

court failed to recognize the plaintiffs’ utter failure of proof on 

their required burden to demonstrate predominance of racial 

    

   



  

  

29 

motivation, and hence, that summary judgment should have 

been granted to the State. 

To the extent the shape of District 12 is somewhat irregular 

and its boundaries correlate with race, the plan’s architects, 

Senator Cooper and Representative McMahan, testified that 

partisan election considerations, and not race, explain these 

results. JS at 69a-84a. Their testimony is confirmed by the 

extensive statistical analysis from Dr. David Peterson.?® The 

district court failed to address Dr. Peterson’s study, but instead, 

relied on maps supplied by plaintiffs from three of the six 

counties in the district. The district court focused on a handful 

of precincts that border District 12, but were not included in the 

district despite having Democratic voter-registration 

majorities, even though the registered Democrats in these 

districts consistently voted Republican. Because the court 

failed to require the plaintiffs to meet head-on the state 

defendants’ contemporaneous and documented explanation for 

the district they drew, the court wrongly concluded that race, 

not partisanship, must have accounted for the design of District 

12 and wrongly denied summary judgment to the State. 

  

30 -Dr. Peterson in his analysis traveled along the boundaries of the 
districts, comparing each precinct included in District 12 with each 
corresponding excluded precinct that adjoined District 12. From these 
comparisons, Dr. Peterson concluded that partisan explanations were “at 
least as strong” and “somewhat stronger’ than racial ones in accounting for 

the District’s design. JS at 98a. 

  
  

  

  
     



    

  

    

  

30 

A. THE STATE’S RELIANCE ON VOTING BEHAVIOR 

DOES NOT TRIGGER STRICT SCRUTINY. 

This Court has upheld the use of partisan election results in 

the drawing of district lines so long as race is not used as a 

proxy for voting preferences. In Bush, a majority of this Court 

made clear that a district is not subject to strict scrutiny simply 

because there is some correlation between its lines and racial 

demographics, if the evidence establishes that those lines were 

in fact drawn on the basis of political voting preference, rather 

than race. See 517 U.S. at 968 (opinion of O’Connor, J., joined 

by Rehnquist, C.J. and Kennedy, J.) (“If district lines merely 

correlate with race because they are drawn on the basis of 

political affiliation, which correlates with race, there is no 

racial classification to justify, just as racial disproportions in 

the level of prosecutions for a particular crime may be 

unobjectionable if they merely reflect racial disproportions in 

the commission of that crime.”); id. at 1027-29 (Stevens, J., 

joined by Ginsburg and Breyer, JJ., dissenting); id. at 1059-60 

(Souter, J., joined by Ginsburg and Breyer, JJ., dissenting). _ 

Contrary to the. district court’s suggestion, this is not a 

situation like that in Bush, where the state has used race “as a 

proxy for political characteristics” in its political 

gerrymandering.®! See JS at 22a, n.7 (citing Bush, 517 U.S. at 

  

3! By contrast, the undisputed evidence here established that the racial 
data available to the North Carolina legislature was no more detailed than 
the other demographic data it used: racial demographics, voter registration 
and election results. All are reported at the precinct level. Compare Bush, 
517 U.S. at 961-67, 969-70, 975 (plur. op.) (finding legislature’s use of 
racial data that was significantly more detailed than its data on other voter 

   



  

  

eo] 

968 (plur. op.). Instead, the undisputed evidence in the record 
showed that the State used political characteristics, as 
represented by actual election results, not racial data, to draw 
the lines. Bush specifically stated, that the legislature’s use of - 
such “political data” to accomplish otherwise legitimate 
“political gerrymandering” will not subject the resulting district 
to strict scrutiny, “regardless of its awareness of its racial 
implications and regardless of the fact that it does so in the 
context of a majority-minority district.” 517 U.S. at 968 (plur. 
op.); see id. at 1027-29 (Stevens, J., joined by Ginsburg and 
Breyer, JJ., dissenting); id. at 1059-60 (Souter, J., joined by 
Ginsburg and Breyer, JJ., dissenting). In this case, legitimate 
the use of political data to design District 12 - which did not 
result in a majority-minority district - does not trigger strict 
scrutiny and there is no racial classification to justify. 

B. THE DISPARITY BETWEEN PARTY REGISTRATION 
AND VOTING BEHAVIOR IN NORTH CAROLINA 
EXPLAINS THE SHAPE AND RACIAL DEMOGRAPHICS 
OF DISTRICT 12. 

The district court’s analysis of District 12 completely failed 
to take into account that voters in North Carolina often do not 
vote in accordance with their party affiliation. The affidavits 
in the record state that in predicting the partisan voting patterns 
of various precincts, the legislature did not rely on voter 
registration data but, rather, employed the far more meaningful 
and reliable method of actual election results. As Senator 

  

demographicsto be convincing circumstantial evidence that race had been 
its predominant consideration in designing the challenged districts). 

  

  
 



    

  

  

  

    
    

  

  

32 

Cooper’s stated, “election results were the principal factor 
which determined the location and configuration of all districts 
in Plan A [the Plan at issue here] so that a partisan balance 
which could pass the General Assembly could be achieved.”3? 
The district court did not address the State’s affidavits directly. 

Instead, relying on plaintiffs’ maps, the court focused on a few 

precincts with Democratic majority voter registration rates that 

bordered District 12 but were not included in the district. Based 

on these isolated examples, the court concluded that the 

“uncontroverted material facts” demonstrate that District 12 

was drawn based on racial identification, rather than political 

identification, because some Democratic majority precincts 

were bypassed in drawing the district. JS at 21a. But party 

registration data was precisely what the legislature chose not to 

use in constructing its districts, since such data was less reliable 

than actual voting histories in guaranteeing specific partisan 

outcomes. 

  

32 JA 73a. Representative McMahan'’s affidavit states: “The means I 
used to check on the partisan nature of proposed new districts was the 
election results in the General Assembly’s computer data base (the 1990 
Helms-Gantt election and the 1988 elections for Lieutenant Governor and 
one of the Court of Appeals seats).” JA 81a-82a. 

Even on the present record, the registration maps relied on by the 
court demonstrate that, with only very rare exceptions, the excluded 
precincts consistently have Democratic voter registration below 60%, while 
the adjoining precincts included in the district consistently have higher 
Democratic voter registration ranging from 60% to over 90%. On the rare 
occasions when a precinct within the district is between 50% and 60% in 
Democratic registration, the Democratic registration for each such district 
consistently is higher than that for its adjoining excluded precinct. See 
McGee Aff. (CD 61), Exs. N, O and P, lodged with the Court. 

  

 



  

  

33 

Far from this being a minor technical matter, the use of 
actual voting patterns rather than registration rates is highly 
probative on how precincts actually vote and hence which ones 
are genuinely safe Democratic precincts.* In North Carolina, 
many voters who have long been registered as Democrats vote 
Republicanin national or statewide races.>’ In North Carolina, 
voter registrationis obviously not a reliable indicator of actual 
voting patterns. 

  

  

* Not until its memorandum opinion was filed did the court indicate 
its misunderstanding of the relevance of registration data. If given the 
opportunity to address the court’s concern, the defendants would have 
provided the far more probative election results for the excluded precincts 
highlighted by the court. The majority of these precincts show dominant 
Republican voting majorities. 

As of 1990, 65% of the State’s voters were registered as Democrats HE fy 
and 30% as Republicans. Yet in the 1988 Presidential election, George fe FE 
Bush received 58% of the vote compared to Michael Dukakis’ 42%; in | 
1992, George Bush and Bill Clinton each received 43%. Since 1992, the 
State has had two Republican Senators. See The Almanac -of American 
Politics 1990, 1994 and 1996. (The demographic and registration data 
available on the State’s redistricting computer is based on 1990 
information.) 

3 If voter registration were a reliable measure of partisan preference, 
then the Republican-controlledState House would never have agreed to the 
redistricting plan. Based on registration figures, 10 of 12 districts have 
Democratic majorities in registration and an eleventh district has a 
Democratic plurality (49.32% Democratic to 43.81% Republican). There 
is one Republican district, but only with a plurality in registration (46.80% 
Republican to 46.55% Democratic). JA at 105-07. District 12 itself 
demonstratesthe often significant disparity between registration and voting 
patterns: the District has a 75% Democratic registration, but only a 62% 
Democratic preference in election results. JS at 99a.   
  

 



    

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34 

Seeking to generate a congressional districting plan that 

would as a whole preserve the existing partisan balance, and 

seeking to make District 12 a Democratic district as part of this 

plan, the legislature for understandable reasons did not rely on 

voter registration rates, but on actual election data - as the two 

key political actors, Senator Cooper and Representative 

McMahan, testified in their affidavits. The magnitude of the 

court’s error in failing to consider the proper criteria in its equal 

protection analysis warrants reversal of the court’s decision. 

CC... TO DETERMINE THE LEGISLATURE’S 

PREDOMINANT MOTIVATION IN DESIGNING A 

DISTRICT, THE COURT MUST CONSIDER THE 

DISTRICT AS A WHOLE. 

The court’s analysis was deficient in other key respects. In 

weighing the evidence before it, the court both examined the 

wrong criteria and focused on isolated precincts, rather than 

reviewing the design of the district as a whole. Had the court 

conducted the complex predominant motive inquiry properly, 

it could not have justified a grant of summary judgment to 

plaintiffs. The court also did not take into account the 

statistically sound and comprehensive analysis of District 12 

made by Dr. Peterson. The results of this report should have, 

at a minimum, raised a genuine issue of material fact and more 

likely, helped establish defendants’ entitlement to summary 

judgment. 

Judicial inquiry into the design of a congressional district 

is a complex and demanding task. In the legislative districting 

context, partisan actors must make decisions about the general 

  

   



  

  

33 

location of the various districts in the plan as a whole. These 
are strongly interlocking decisions, of course, because for 

partisan purposes, what matters is not any district in isolation, 
but the predicted partisan effects of the plan as an entirety. See, 
e.g., Davis v. Bandemer, 478 U.S. 109, 145 (1986) (O’Connor, 
J., concurring in the judgment) (“The opportunity to control the 
drawing of electoral boundaries through the legislative process 
of apportionment is a critical and traditional part of politics in 
the United States, and one that plays no small role in fostering 
active participation in the political parties at every level.”). 

This is the general, complex context against which courts 

must adjudicate the role of race - and in particular, whether race 
predominated. In this case, the district court failed to apply the 
“predominant motive” standard in a manner that systematically 

analyzed District 12 as a whole. District 12 contains 155 

precincts. Yet, the district court focused on three of the six 
included counties, and concentrated on only 32 excluded 
precincts with Democratic voter-registration majorities. Based 
“on its isolation of these particular precincts, the district court 
wrongly concluded that the district as a whole had been drawn 
with a predominantly racial purpose. Thus, even if the court 
had not misunderstoodthe difference between voter registration 
data and actual election results, its approach to applying Shaw - 
by picking and choosing selected features of a district, rather 
than examining the district as a whole - was fatally flawed. 

There are likely a number of techniques through which 
lower courts statistically could analyze the predominant 
redistricting motivation for a district as a whole. Here the State 
offered one such approach. The State submitted an extensive 

  

    

 



  

    

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36 

statistical analysis from an expert statistician that did not 
isolate a small number of precincts, but instead 
comprehensively examined all of District 12 and its 
surrounding territory. Dr. Peterson concluded that racial 
considerations did not predominate in the drawing of District 
12. JS at 87, 98a. This statistical analysis, along with the 
testimony of the legislators, should have been enough to enable 
the State not only to defeat plaintiffs’ motion for summary 
judgment, but also to obtain judgment in its favor. This is not 
to say that this statistical analysis is the only means of bringing 

more than anecdotal perspectives to bear on applying the 
predominant motive test. But this method of analysis does 
provide at least one way lower courts, as well as redistricters 
seeking to comply in good faith with Shaw, can gain more 
concrete guidance into how to assess whether the predominant 
motive for a district or districting plan rests on constitutional 
permissible considerations. 

The point of such method is to offer a more reliable means 
than intuitive, ad hoc, and necessarily subjective approaches to 
judging the “predominant motive” in these highly charged, yet 
analytically complex cases. In other areas of the judicial 
oversight of districting, this Court has similarly turned to more 
systematic or quantitative approaches, in part to make the 
application of legal standards administrable for both lower 
courts and redistricters. Thus, in giving content to the concept 
of racial polarization under Section 2 of the Voting Rights Act, 
this Court endorsed the use of homogenous precinct and 
ecological regression analysis. Thornburg v. Gingles, 478 U.S. 

   



    

37 

30, 58-61 (1986).*” More systematic and quantitative means of 
overseeing districting decisions are less easily manipulable by 
political actors engaged in what is the most intensely partisan 
and self-regarding of all political acts; they also enable 
redistricters seeking in good faith to comply with their statutory 
and constitutional obligations to know those obligations with 
greater clarity. The absence of such standards encourages not 
only manipulation, but also litigation, and therefore requires 
courts to get drawn into overseeing redistricting on a case-by- 
case basis in a far more intrusive way. 

The district court dismissed Dr. Peterson’s extensive 
analysis simply by pointing to various excluded “Democratic” 
precincts that bordered the District. Even had the court not been 
factually mistaken (in its reliance on voter registration rather 
than voter behavior data), its leap from an examination of 
selected excluded precincts to a judgment about the districting 
process as a whole was legally defective. For what the court did 
was to reject the State’s comprehensive assessment of the 
District as a whole in favor of focusing on a few “pick-and- 
choose” examples. In essence, the district court ignored or 
dismissed a complete, statistically reliable result by offering up 
some anecdotal points that ran contrary to the overall pattern. 
Both legally and statistically, the court’s approach is unsound. 
The predominance standard requires methods by which the 

  

7 Similarly, after malapportionment became constitutionally 
actionable under Baker v. Carr, 369 U.S. 186 (1962), this Court came to 
adopt a quantitative standard - one person, one vote - partly on the grounds 
that such a standard was more administrable than more subjectively defined 
standards. 

         



  

    

  

  

  
  

38 

court can examine a district systematically and 
comprehensively as a whole before concluding what motive 
predominated in the overall districting process. 

Shaw was announced as a doctrine for extreme, aberrational 

cases. Under an approach that enables plaintiffs to focus on 
discrete segments of a district, such as the district court 
employed here, Shaw would expand even further. Indeed, if 

plaintiffs are encouraged to target particular segments of a 
district, rather than adducing proof for the district as a whole, 
Shaw will begin to engulf the most microscopic aspects of 
redistricting. To keep judicial oversight administrable, this 
Court should clarify that the predominant motive test must be 
applied to districts as a whole, rather than in the piecemeal 

fashion permitted by the court below. The stated motivations of - 
the legislators, which are supported by a comprehensive and 
valid statistical analysis, not only require reversal of the court’s 

judgment, but also justify entry of judgment for defendants. 

HL APPLICATION OF STRICT SCRUTINY TO 

DISTRICT 12 IS UNWARRANTED BECAUSE 

IT DOES NOT GIVE RISE TO THE KINDS OF 

HARMS WITH WHICH THE SHAW-MILLER 

DOCTRINE IS CONCERNED. 

Shaw reflected constitutional concerns that arise “[w]hen a 

district obviously is created solely to effectuate the perceived 

common Interests of one racial group.” Shaw I, 509 U.S. at 

648. As this Court has consistently emphasized, it is the 

excessive use of race in districting, not the use of race as one 
factor, that triggers strict scrutiny. Shaw ’s “basic objective” is 

   



  

  

39 

to make “extreme instances” of racial gerrymandering subject 
to “meaningful judicial review.” Miller, 515 U.S. at 929 
(O'Connor, J., concurring). 

As a doctrine designed for “extreme instances” of racial 
gerrymandering, Shaw has led already to courts finding 
unconstitutional most of the majority-minority congressional 
districts created in the South after the 1990 Census. If the 
district court’s extension of the doctrine is allowed to stand, 
Shaw's sweep would truly be immense, extending to any 
district - whether majority-minority or maj ority-majority- with 
any significant level of minority population. Not only would 
this be at odds with the “basic objective” of Shaw, but it would 
undermine the very values that animate the Shaw line of cases. 

Shaw and its progeny have identified several specific harms 
that the excessive use of race in districting can cause. First, it 
can cause “representational” harm. United States v. Hays, 515 

U.S. 737,744 (1995). When a district is “obviously. . . created 
solely to effectuate the perceived common interests of one 
racial group,” certain voters suffer representational harm, 
because “elected officials are more likely to believe that their 

primary obligation is to represent only the members of that 
group, rather than their constituency as a whole.” Shaw I, 509 
U.S. at 648. Second, it can cause “expressive harm,” Bush, 517 

U.S. at 1053 (Souter, J., dissenting), by “convey[ing] the 
message that political identity is, or should be, predominantly 
racial,” id. at 980 (plur. op.). Third, it can cause societal harm, 

“by carving electorates into racial blocs,” Miller, 515 U.S. 927, 

which can “balkanize us into competing racial factions,” Shaw 

1,509 U.S. at 657. 

  

  
 



  

  

  

40 

District 12 does not trigger any of these concerns. Far from 

sending elected officials the message that they represent only 

the members of a particular racial group, see Shaw I, 509 U.S. 

at 648, District 12, which is majority-majority with a 

substantial minority population, requires candidates of any race 

- majority or minority - to appeal across racial lines to gain 

election. Given this reality, the concern that the representatives 

elected from this district will believe their “primary obligation” 

is to any particular racial group is simply not present. 

Nor does District 12 give rise to any expressive harms. 

Since the district’s borders were drawn based on actual voting 

patterns, rather than on racial characteristics, they do not 

convey the message that “members of the same racial group - 

regardless of their age, education, economic status, or the 

community in which they live - think alike, share the same 

political interests, and will prefer the same candidates at the 

polls.” Shaw I, 509 U.S. at 647. Indeed, it would be racially 

stereotypical for a court to assume, simply because the district 

has a significant African-American population, that race was 

the predominant unifying factor when, in fact, these voters 

were linked together for a reason that transcends race - their 

political identity, as manifested by their engagement in 

political life and their allegiance to particular Democratic 

candidates and the issues for which those candidates stand. Cf. 

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

F. Supp. 1409 (E.D. Ca. 1994) (three-judge court) (strict 

scrutiny did not apply to majority-minority district that was 

drawn according to traditional race-neutral districting 

principles). 

   



  

  

41 

Finally, a district as racially mixed and politically 

harmonized as District 12 can hardly be seen as “balkanizing” 

the area into racial factions. The voting patterns in North 

Carolina revealed that certain precincts in the Piedmont 

Crescent - precincts that in fact happened to be predominately 

African-American - were consistently loyal to Democratic 

candidates, and thus could be joined with certain other 

precincts in the same area - precincts that in fact happened to 

be predominantly white - to create a “safe” Democratic district. 

That does not mean that North Carolina has been carved into 

racial blocks. The carving - if any - has been done along 

political lines, not racial lines. Separation of voters based on 

political identity does not offend constitutional norms, even 

when it happens to correlate to some degree with race. See 

Bush, 517 U.S. at 968 (plur. op.). 

Even in the best of circumstances, redistricting is a 

daunting task for a state legislature. Where, as here, the state 

has a substantial minority population, with a demonstrated 

record of voting overwhelmingly for one party, and a divided 

legislature - with one house controlled by one party, and the 

other house by the other party - the task is still more difficult. 

If this Court extends Shaw to majority-majority districts with 

substantial minority populations, states in this position will find 

it virtually impossible to craft a plan that cannot be tied up for 

years in the courts. 

The difficulty, simply put, is this: to command the approval 

of both houses of the legislature in such a state, a plan must 

draw districts that allocate seats proportionally between the two 

parties. To do so, it will almost certainly have to draw districts 

  

  

  

 



  

  

42 

with somewhat irregular shapes. This Court has authorized it to 

do that. See Gaffney v. Cummings, 412 U.S. 735, 751-54 (1973) 

(State may draw irregular district lines in order to allocate seats 

proportionately to major political parties); Bush, 517 U.S. at 

964-65 (plur. op.) (same). But given the size of the minority 

population and its demonstrated preference for one political 

party in past elections, any plan drawn to allocate seats evenly 

between the two parties - even one drawn solely on the basis of 

partisan political data, like voting patterns in past elections - 

will almost certainly result in the creation of some districts 

which, though majority-majority, have a larger percentage of 

minority voters than others. If the combination of irregular 

lines and a substantial minority populationis sufficient to make 

a majority-majority district subject to challenge under Shaw, 

then any plan which allocates seats proportionately to the two 

parties - hence is capable of passing both houses of the 

legislature - is vulnerable to challenge under Shaw. As North 

Carolina’s experience demonstrates, the inevitable result will 

be that every plan the legislature manages to pass will be the 

subject of protracted litigation under Shaw,’® and that the 

federal courts - not the state legislatures - will become the 

principal architects of the state’s congressional and legislative 

districting plans. This Court should not countenance such an 

  

3% In this context, it is worth noting that plaintiffs continue to challenge 
District 12 in the 1998 Interim Plan. That district has a total population that 
is 62.69% white and 35.58% African-American, a voting age population 
that is 65.85% white and 32.56% African-American, and a registered voter 
population that is 66.72% white and 32.99% African-American. See 
Submission of 1998 Congressional Redistricting Plan (CD 94), Attachment 
98C-27A-2. : 

   



  

43 

unprecedented intrusion by the federal judiciary into this “most 

vital” aspect of state sovereignty. See Miller, 515 U.S. at 915. 

The court below permitted plaintiffs challenging this 

‘majority-majority district to trigger the strict scrutiny of Shaw 

simply by showing that the district was somewhat irregular in 

shape and that its minority population exceeded the percentage 

of minority residents in the counties from which that district 

was created. This Court should make clear that the strict 

scrutiny of Shaw cannot be so easily triggered, and that it is 

appropriate only when the plaintiffs supplement their 

circumstantial evidence of shape and demographics with 

substantial additional evidence that race was the predominant 

factor in the district’s design, as did the plaintiffs in Miller, 

Bush and Shaw II.*° See Lawyer, 117 S. Ct. at 2195 (noting that 

  

* This additional evidence might consist of statements from the state 
officials who drafted the plan and shepherded it through the legislature, 
indicating that they had deliberately set out to create a certain number of 
“safe” districts for minority-preferred candidates. See Miller, 515 U.S. at 
916-19 (relying expressly on this kind of “more direct” evidence of a 
predominatelyracial purpose); Bush, 517 U.S. at 958-76 (plur..op.) (same). 
Because the best evidence of the legislature’s purpose in enacting a 
particular statute is the conduct or statements of those who actually 
participated in or contributed to its enactment, Edwards v. Aguillard, 482 
U.S. 578, 595-96 (1986), the Court might find that only that kind of “direct” 
evidence would suffice. Cf Price Waterhouse v. Hopkins, 490 U.S. 228, 
275-76 (1989) (O’Connor, J., concurring) (arguing that plaintiff in 
individual disparate treatment case under Title VII should be required to . 
produce “direct” evidence of the defendant's impermissible motivation - 
defined as conduct or statements of the actual decisionmaker that bears 
directly on the motivation behind the challenged decision - to shift the 
burden of persuasion on motivation to the defendant); Starceski v. 
Westinghouse Elec. Corp., 54 F.3d 1089, 1096-97 (CA3 1995) (holding that 
plaintiffs are required to produce such “direct” evidence to obtain a burden- 

       



    

J 

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44 

this Court has “never suggested that the percentage of black 

residents in a district may not exceed the percentage of black 

residents in any of the counties from which the district is 

created,” or that “similar racial composition of different 

political districts . . . [is] necessary to avoid an inference of 

racial gerrymandering in any one of them.”). 

Because the plaintiffs’ only evidence that race was the 

predominant factor in the design of District 12 is an inference 

they ask the court to draw from its shape and racial 

demographics, their claim fails as a matter of law, and the state 

defendants are entitled to judgment as a matter of law. 

CONCLUSION 

For the forgoing reasons, this Court should reverse the 

district court’s judgment for plaintiffs and remand for entry of 

judgment in favor of the state defendants. In the alternative, the 

Court should reverse the district court’s judgment for plaintiffs 

and remand for trial. 

  

shifting instruction). But the Court need not resolve that question to decide 
this case, for the plaintiffs here have presented absolutely no additional 
evidence - “direct” or otherwise - to supplement the inference they ask this 
Court to draw from their evidence of shape and racial demographics. 

 



  

  

November 10, 1998 

    

45 

Respectfully submitted, 

MICHAEL F. EASLEY 
North Carolina Attorney General 

Edwin M. Speas, Jr.* 
Chief Deputy Attorney General 

Tiare B. Smiley 

Special Deputy Attorney General 

Melissa L. Saunders 

Special Counsel to Attorney General 

+ -Walter E. Dellinger 

O’Melveny & Myers LLP 

Crystal Nix 

O’Melveny & Myers LLP 

*Counsel of Record

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