State Appellants’ Brief on the Merits
Public Court Documents
November 10, 1998
58 pages
Cite this item
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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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°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
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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
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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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53
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
Fx
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.
E
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10
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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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