Fax to Co-Counsel from Cox RE: Memo and Order for Pending Cases

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TDK NAACP ec pzrensE & epucATIO®AL FUND, INC 
1444 | Street 

Ld, 10" Floor 
\/ashington, DC 20005 

Tel: (202) 682-1300 
Fax: (202) 682-1312 

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To: Company: 
Telephone #: Fax #: 

Ted Shaw NAACP-LDF 
212-965-2200 212-226-7592 

Jacqueline Berrien NAACP-LDF 
212-965-2200 212-226-7592 

Patricia Grayson NAACP-LDF 
212-965-2200 212-219-1595 

Costas Varsos NAACP-LDF 212-965-2200 212-219-1595 

Herschel Johnson NAACP-LDF 
212-965-2200 212-219-1595 

Norman Chachkin NAACP-LDF 
212-965-2200 212-219-2052 

Elaine Jones NAACP-LDF 
212-965-2200 212-219-1594 

Erica Teasley NAACP-LDF 213-975-0211 213-202-5773 

From: Todd Cox 202- 82-1300 

Subject: Cromartie v. Hunt 

Date: March 29, 2000 Time: 1:18 PM 

Pages: 61, including this cc ver sheet. 

Original: Will Will Not X Follow this transmission 

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(ORDER LIST: 5239 U.S.) 

THURSDAY, MARCH 16, 2000 

ORDER IN PENDING CASES 

99A750) HUNT, COV. OF NC, ET AL. V. CROMARTIE, MARTIN, ET AL. 

) 
894757) SMALLWOOD, ALFRED, ET AL. V. CROMARTIE, MARTIN, ET AL. 

The applications for stay of the judgment 

of the United States District Court for the Eastern 

District of North Carolina, case No. 4:96-CV-104-B0(3), 

entered March 8, 2000, presented to The Chief Justice 

and by him referred to the Court are granted pending the 

timely docketing of the appeals in this Court. Should 

The jurisdictional statements be timely filed, this 

order shall remain in effect pending this Court’s action 

on the appeals. If the appeals are dismissed, or the 

judgment affirmed, this order shall terminate 

automatically. In the event jurisdiction is noted ar 

postponed, this order will remain in effect pending the 

sending down of the judgment of this Court. 

 



  

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EDF MEMORANDUM 
To : Elaine R_ Jones 
From: Todd Ag Ta 
Re: Cromartie v. Hunt 
Date: March 29, 2000 
  

Cromartie v. Hunt is a Fourteenth Amendment challenge to the constitutionality of North Carolina’s First and Twelfth Congressional Districts under the theories established in Shaw v. 
Reno, 509 U.S. 630 (1993). LDF and our cooperating law firm of Ferguson, Stein, Wallas, Gresham & Sumter, represent African-American and white voters who have intervened to defend the districts’ constitutionality. This memorandum will briefly summarize the history of the case and place the March 7, 2000 district court decision and the March 16, 2000 Supreme Court stay in the context of our overall voting rights work. The lower court decision and Supreme Court stay order is attached. 

BACKGROUND 

Shaw v. Reno and the Challenge to North Carolina’s Congressional Redistricting 

White voters filed a lawsuit under the Fourteenth Amendment challenging North Carolina’s 1992 congressional redistricting plan that sent the State’s first African-American Representatives to Congress since Reconstruction. In that case, Shaw v. Reno, 509 U.S. 630 (1993), the U.S. Supreme Court held for the first time that white voters could bring an action under the Fourteenth Amendment by alleging that a district is so extraordinarily bizarre in shape that, without sufficient justification, it could only be viewed as an effort to classify voters on the basis of race. The case went back to the district court for a trial after which the district court upheld the Twelfth District’s constitutionality. Again on appeal, in Shaw v. Hunt, 517 U.S. 899 (1996), the U.S. Supreme Court this time invalidated the North Carolina Congressional redistricting plan, striking the Twelfth Congressional District as unconstitutional. 

Following the decision, the North Carolina General Assembly adopted a revised plan that created a new Twelfth District that was only 47 percent African-American in total population (originally it was 53 percent total African-American population). Although the First Congressional District in the 1992 Plan was never determined to be unconstitutional, the First District was also redrawn. While it remained a majority-African-American district, its total African-American population was reduced to 50.3 percent (originally it was 57.3 percent total African-American population). In the next congressional elections, incumbent Representative Melvin Watt was re-elected to represent the new Twelfth Congressional District and incumbent Representative Eva Clayton was re-elected to represent the new First Congressional District. This plan was the subject of the challenge filed in Cromartie v. Hunt 

Summary Judgment and Supreme Court Appeal in Cromartie v. Hunt 

A group of plaintiffs, comprised in part of the same voters who brought the initial Shaw 

 



  

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case, filed Cromartie v. Hunt, seeking to have the new Twelfth and First Congressional Districts ruled unconstitutional racial gerrymanders. After a hearing in March 1998, during which the court refused to hear our arguments on the merits of the case and on the pending intervention motions, the court ruled without a trial that the Twelfth District was unconstitutional. Even though it was not a majority-African-American district, the three-judge district court held that race was the primary motivation for District Twelve’s lines, as shown by its shape and the inclusion of certain majority-African-American voting precincts and the exclusion of selected. majority-white voting precincts. The three-judge district court also ordered the parties to proceed to trial on the constitutionality of the First District. The court permanently barred the State from using the redistricting plan and ordered the State to devise a new congressional plan before the 1998 elections. 

Consequently, the State developed a new plan, but also appealed the three-judge district court’s decision to the U.S. Supreme Court, After the deadline for our clients to file an appeal of the court’s opinion, the three-judge district court finally granted our third motion to intervene. Therefore, we filed and the Supreme Court granted our motion to intervene as parties in the Supreme Court to press our clients’ rights on appeal and defend the Twelfth District Meanwhile, elections were held under the new redistricting plan. Congressman Mel Watt and Congresswoman Eva Clayton ran under the new plan and won. 

On appeal, the Supreme Court reversed the district court judgment and held that the plaintiff-appellees were not entitled to summary judgment and that the Twelfth District was an unconstitutional racial gerrymander. Rather, the Court pointed to evidence that, in creating the Twelfth District, the North Carolina General Assembly “did no more than create a district of strong partisan Democrats,” Hunt v. Cromartie, 526 U.S. ——t 119 8. Ct. 1545 1551) (1999), holding that “a jurisdiction may engage in constitutional political gerrymandering, even if it 50 happens that the most loyal Democrats happen to be black Democrats and even if the State were conscious of that fact.” Cromartie, 119 S. Ct. at 1547 (emphasis in the original) (citing Bush v. Vera, 517 U.S. 952, 968 (1996); Shaw v. Hunt, 517 U.S. 899, 905 (1996); Miller v. Johnson, 515 U.S. 900, 916 (1995); Shaw v. Reno, 509 US. 630, 646 (1993))*. The Court concluded: 

Evidence that blacks constitute even 2 supermajority in one congressional district while amounting to less than a plurality in a neighboring district will not, by itself, suffice to prove that a jurisdiction was motivated by race in drawing its district lines when the evidence also shows a high correlation between race and party preference. 

Cromartie, at 119 S. Ct. at 1547. 

    

'LDF represented defendant-intervenor parties in Bush v. Vera, Shaw v. Hunt, Miller v. Johnson, and Shaw v. Reno and played a critical role in helping defend the districts challenged in these cases. 

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THE TRIAL ON REMAND AND THE CURRENT APPEAL 

Although the Supreme Court issued its decision in Hunt v. Cromartie, in May, 1999 and despite the urgency of the State’s election schedule, the district court did not issue its discovery schedule until August 23, 1999, three months later. The district court set an expedited discovery and trial schedule and held a three day trial in November 1999. 

On March 8, 2000, over three months after an expedited November trial and ten months after the Supreme Court’s reversal of the entry of summary judgment, the district court issued its opinion. In the time that the trial court took to issue its opinion, candidates filed to run in, and the State began preparations for the May 2, 2000 primary. Moreover, the first absentee ballots for the congressional primary election would be cast on March 18, 2000. Based in large part on the reasoning used in its prior opinion, the district court again found that the Twelfth District was unconstitutional and barred the use of the district in the upcoming May 2, 2000 elections. However, the court found the First District constitutional. While ruling that the First District was a racial gerrymander, the court held that the district was narrowly tailored to meet North Carolina’s compelling state interest of complying with Section 2 of the Voting Rights Act, 42 U.S.C. § 1973. 

On behalf of our clients, LDF and the State of North Carolina, respectively, filed in the district court notices of appeal and requests for a stay pending appeal of the district court order striking the Twelfth District. Given the urgency of the election schedule, we also filed stay papers in the Supreme Court. In addition to discussing the irreparable injury that the state and the public in general would suffer if the state were forced to delay the upcoming election and redistrict, our stay papers focused on the particular injury African-American voters would suffer in any electoral delay. On Monday, March 13, 2000, the district court denied our motion for a stay. On March 16, 2000, the Supreme Court granted our stay pending an appeal of the lower court decision ruling that the Twelfth District was unconstitutional. Our jurisdictional statement is due May 8, 2000. 

CONCLUSION 

The grant of the stay will permit the May 2nd primary to proceed uninterrupted and will permit the state to use the current district lines, including the Twelfth District, for the election. This is a very significant victory for our clients and minority voters in North Carolina and marks only the third time the Court has granted a stay of an adverse district court judgment in a case brought under the Shaw doctrine > As we argued before the Court, altering the State’s regular election calendar, particularly at this late date contributes to low voter turnout. This result is exacerbated for minority groups, such as African-Americans, because they tend to be poorer and 
  

“The other two cases were Hays v. Louisiana, the challenge to the Louisiana congressional redistricting plan, and Johnson v. Miller, the challenge to the Georgia congressional redistricting plan. LDF represented defendant-intervenor parties in both cases. 

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SEB TT oF BA RO EE UR VE A A SS Te A 

less well educated than their white counterparts, and, consequently, tend to have lower levels of political participation. 

On appeal, it will be particularly critical to protect the constitutionality of the First and Twelfth Districts so that they can serve as the benchmarks for the creation of the new congressional district lines following the post-2000 Census. In addition, the preservation of the majority-African-American First Congressional District in the lower court is an important victory. While the district court found that race predominated in the creation of the First District, it also found that the decision to create the district was narrowly tailored to meet a compelling justification under the Voting Rights Act. This is only the second time that a district court has specifically found, in a Shaw challenge, that a electoral district is narrowly tailored to meet a compelling state interest in complying with Section 2 of the Voting Rights Act, 42 U.S.C. § 1973.2 It is not yet clear if plaintiffs will appeal this part of the district court ruling. 

Please contact me with any questions. 

Attachments 

ce: Ted Shaw 

Norman Chachkin 
Jacqueline Berrien 
Patricia Grayson 
Herschel Johnson 
Erica Teasley 

Costa Varsos 
D.C. Staff 

  

*The first time was in King v. State Bd of Elections, 979 F. Supp. 619, 621-27 (N.D. III. 1997), summ. aff., 522 U.S. 1087 (1998) (per curiam) where the district court found that the 

state interest.”). 

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