Shaw v Hunt Jurisdictional Statement

    No.

IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1994

RUTH O. SHAW, et al..
Appellants,

and
JAMES ARTHUR "ART" POPE, et al..

Plaintiff-Intervenors,

v.

JAMES B. HUNT, JR., in his official capacity 
as Governor of the State of North Carolina, et al..

Appellees,
and

RALPH GINGLES, et al..
Defendant-Intervenors.

APPEAL
FROM THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF NORTH CAROLINA 
RALEIGH DIVISION

JURISDICTIONAL STATEMENT

Robinson O. Everett
Counsel of Record for Appellants
301 West Main Street, Suite 300
Durham, N. C. 27701
(919) 682-5691



1

QUESTIONS PRESENTED

I

WAS N O R T H  C A R O L IN A ’S R A C IA L L Y  
GERRY M A N D ERED  RED ISTRICTIN G  PLAN 
ENACTED WITHOUT A COMPELLING STATE 
INTEREST FOR DOING SO?

II

DID THE GENERAL ASSEMBLY ENACT NORTH 
CAROLINA’S RACIALLY GERRYMANDERED 
REDISTRICTING PLAN WITHOUT NARROWLY 
TAILORING IT?

Ill

DID THE COURT BELOW NEGATE THE "STRICT 
SCRUTINY" TEST BY MISALLOCATING THE 
BURDEN OF PERSUASION, RELYING ON POST 
HOC RATIONALIZATIONS, AND MAKING 
CLEARLY ERRONEOUS FINDINGS OF FACT?



THE PARTIES

Appellants, Plaintiffs in the action below, are as 
follows:
RUTH O. SHAW, MELVIN G. SHIMM, ROBINSON O. 
EVERETT, JAMES M. EVERETT, and DOROTHY 
BULLOCK.

Plaintiff-Intervenors in the action below, are as 
follows:
JAMES ARTHUR "ART" POPE, BETTY S. JUSTICE, 
DORIS LAIL, JOYCE LAWING, NAT SWANSON, 
RICK WOODRUFF, J. RALPH HIXON, AUDREY 
McBANE, SIM A. DELAPP, JR., RICHARD S. 
SAHLIE, and JACK HAWKE, Individually.

Defendants in the action below, are as follows: 
JAMES M. HUNT, JR., in his official capacity as 
Governor of the State of North Carolina; DENNIS A. 
WICKER, in his official capacity as Lieutenant Governor 
of the State of North Carolina, and President of the 
Senate; DANIEL T. BLUE, JR., in his official capacity as 
Speaker of the North Carolina House of Representatives; 
RUFUS L. EDMISTEN, in his official capacity of 
Secretary of the State of North Carolina; THE NORTH 
CAROLINA STATE BOARD OF ELECTIONS, an 
official agency of the State of North Carolina; EDWARD 
J. HIGH, in his official capacity as Chairman of the North 
Carolina State Board of Elections; JEAN H. NELSON, 
in her official capacity as a member of the North Carolina

ii



Ill

State Board of Elections, LARRY LEAKE, in his official 
capacity as a member of the North Carolina State Board 
of Elections, DOROTHY PRESSER, in her official 
capacity as a member of the North Carolina State Board 
of Elections, and JUNE K. YOUNGBLOOD, in her 
official capacity as a member of the North Carolina State 
Board of Elections.

and

Defendant-Intervenors in the action below, are as 
follows:
RALPH GINGLES, VIRGINIA NEWELL, GEORGE 
SIMKINS, N. A. SMITH, RON LEEPER, ALFRED 
SMALLWOOD, DR. OSCAR BLANKS, REVEREND 
DAVID MOORE, ROBERT L. DAVIS, C. R. WARD, 
JERRY B. ADAMS, JAN VALDER, BERNARD 
OFFERMAN, JENNIFER McGOVERN, CHARLES 
LAMBETH, ELLEN EMERSON, LAVONIA ALLISON, 
GEORGE KNIGHT, LETO COPELEY, WOODY 
CONNETTE, ROBERTA WADDLE, and WILLIAM M 
HODGES.



IV

QUESTIONS PRESEN TED ................ .............  i
PARTIES IN THE COURT B ELO W .............  ii
TABLE OF CONTENTS....................................  iv
TABLE OF A U TH O R ITIES..............................  v
OPINIONS B ELO W .............................................  1
JURISD ICTIO N ....................................................  2
CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED....................  2
STATEMENT OF THE C A S E .......................... 3
THE QUESTIONS PRESENTED ARE

SUBSTANTIAL................................................  6
I. The Evidence Clearly Reveals That

North Carolina’s Racially Gerrymandered 
Redistricting Plan Did Not Further A 
"Compelling State Interest"........................ 9

II. North Carolina’s Redistricting Plan
Was Not "Narrowly Tailored".................  23

III. The District Court Misallocated 
The Burden Of Persuasion 
And Relied Erroneously On

Post Hoc Rationalizations........................ 28
CONCLUSION........................................................ 30
APPENDIX OF CONSTITUTIONAL 

AND STATUTORY PROVISIONS..............  A-l

TABLE OF CONTENTS
Page



V

TABLE OF AUTHORITIES

CASES:

Batson v. Kentucky, 476 U.S. 79 (1986)............ 23

Board o f Education o f Kiryas Joel Village 
School District v. Grumet,
114 S.Ct. 2481 (1994)......................................  18

Dolan v. City o f Tigard, 114 S.Ct. 2309 
(1994)......................................................................... 24

Growe v. Emison, 507 U.S.___,
113 S.Ct. 1075 (1993)............................................... 16

Hays v. Louisiana, 839 F.Supp. 1188 
(W.D.La. 1993), vacated, Louisiana 
v.. Hays, 114 S.Ct. 2731 (1994) 
adopted by reference, Hays v.
Louisiana, No. 92-1522 (W.D.La. 1994).....  8,9,14,30

J.E.B. v. Alabama ex rel T.B., 114 S.Ct.
1419 (1994).............................................................. 18,23

Johnson v. DeGrandy, 114 S.Ct. 2647 
(1994)...................................................................  14,16

Johnson v. Miller, No. 194 - 008
(S.D.Ga. Sept. 12, 1994)........................................ 8,14

Page



VI

Kassel v. Consolidated Freightways Corp.,
450 U.S. 662 (1981)................................    30

Pope v. Blue, 809 F.Supp. 392
(W.D.N.C.1992) affirmed 506 U.S.___,
113 S.Ct. 30 (1992) ........................................... 4

Richmond v. J.A. Croson Co.,
488 U.S. 469 (2989)........................................... 9,24,28

Shaw v. Barr, 808 F..Supp. 461
(E.D.N.C. 1992)...................................................  4

Shaw v. Reno, 113 S.Ct. 2816 (1993).........................passim

Thornburg v. Gingles, 478 U.S. 30 
(1986) ...........................................................................16,17

Vera v. Richards, C.A. No. H-94-2077 
(S.D.Tex, Aug. 17, 1994).......................................  3 8

TABLE OF AUTHORITIES (Continued)

Page



Vll

CONSTITUTIONAL PROVISIONS:
Page

U.S. Const. Art. I, § 2 ........................................... 4

U.S. Const, amend. X IV ......................................  2,12

U.S. Const, amend. X V ........................................  2

STATUTES:

2 U.S.C. § 2 (c ) ........................................................  22

28 U.S.C. § 1253 .....................................................  2

Section 2 of the Voting Rights 
Act of 1965, as amended.
42 U.S.C. § 1973...................................  2,11,14,15,16,17

Section 5 of the Voting Rights 
Act of 1965, as amended.
42 U.S.C. § 1973c...............................  2,4,5,11,12,14,24

FED. R. CIV. P. 52(b) 2,6,9



Page

viii

TABLE OF AUTHORITIES (Continued)

Chapter 7 (1991 Extra Session) 
amending North Carolina Election 
Code.................................................................  3

N.C.G.S. § 163-11.............................................  19

OTHER:

2 McCormick, EVIDENCE § 337 (4th Ed.
1992)...................................................................  29

Swain, Carol, BLACK FACES,
BLACK INTERESTS (1993).......................  22

9 Wigmore, EVIDENCE § 2486 (Chadboume
Rev. (1981)......................................................... 29



IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1994

No.

RUTH O. SHAW, et al..
Appellants,

and
JAMES ARTHUR "ART' POPE, et al..

Plaintiff-Intervenors,

v.

JAMES B. HUNT, JR., in his official capacity 
as Governor of the State of North Carolina, et al..

Appellees,
and

RALPH GINGLES, et al..
Defendant-Intervenors.

APPEAL
FROM THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF NORTH CAROLINA 
RALEIGH DIVISION

JURISDICTIONAL STATEMENT

OPINIONS BELOW

The judgment and opinion, as amended, of the 
three-judge district court are contained in the Appendix 
to Jurisdictional Statements filed jointly by these



2

appellants, who were the five original plaintiffs, and by 
the eleven plaintiff-inteivenors, who are also appealing 
[hereafter "App.J.S."], at pages la  to 154a.

JURISDICTION

The district court entered judgment against 
appellants on August 1, 1994, and at the same time a 
majority opinion was filed, as well as the dissenting 
opinion of Chief Judge Voorhees. On August 15, 1994, 
plaintiffs filed a motion to amend and add findings 
pursuant to Rule 52(b) of the Federal Rules of Civil 
Procedure. On August 22, 1994, amended opinions were 
filed by the majority and the dissenting judge in the 
district court. On August 29, 1994, plaintiffs filed a notice 
of appeal. On September 1, 1994, the district court 
denied plaintiffs’ 52(b) motion and on September 15, 
1994, the plaintiffs filed a supplemental notice of appeal. 
Subsequently, pursuant to Rule 22 of the Rules of the 
Supreme Court, the plaintiffs and plaintiff-intervenors 
filed a motion applying for a determination that the time 
for docketing the appeals in this case, together with the 
consolidated single appendix to the jurisdictional 
statements of plaintiffs and plaintiff-intervenors, run to 
and including November 21, 1994. This motion was 
granted by the Chief Justice. This Court has jurisdiction 
under 28 U.S.C. § 1253.

CONSTITUTIONAL PROVISIONS 
AND STATUTES INVOLVED

This case arises under the Fourteenth and 
Fifteenth Amendments to the Constitution of the United 
States and involves Sections 2 and 5 of the Voting Rights



3

Act of 1965, as amended, 42 U.S.C. §§ 1973b, 1973c 
(1973), which are reprinted in Plaintiff-appellants’ 
Appendix to this Jurisdictional Statement (pp.Al-A-4). 
The appeal concerns the constitutionality of Chapter 7 of 
the 1991 Extra Session Laws of North Carolina 
(hereinafter "Chapter 7"), the challenged congressional 
redistricting statute and amends Chapter 163, Article 17 
of the North Carolina General Statutes. Chapter 7 is 
reprinted at App.J.S. pp. 169a to 240a. A map of the 
Chapter 7 congressional plan was appended to the Court’s 
Opinion in the first appeal of this case, Shaw v. 
Reno,___U.S.___,113 S.Ct. 2816 (1993) (hereafter "Shaw").

STATEMENT OF THE CASE

This appeal from the decision rendered by a 
divided three-judge district court raises substantial 
questions concerning the constitutionality of the current 
North Carolina congressional redistricting plan.1 All three 
judges in the court below found this plan to be a racial 
gerrymander. However, a majority concluded that the 
plan survived "strict scrutiny" because it was "narrowly 
tailored to further the State’s compelling interest in 
complying with theVoting Rights Act." (App.J.S. at 7a). 
That conclusion gave rise to this appeal.

The challenged redistricting plan was enacted by 
the General Assembly on January 25, 1992, after an

1 Chief Judge Voorhees’ extensive dissent in the court below 
makes obvious the importance of these questions. (App.J.S. at 116a- 
154a) See also footnote .55 of Judge Edith Jones’ opinion in Vera v. 
Richards, No. H-94-2077 (S.D.Tex. Aug. 17, 1994)



4

earlier plan had been denied preclearance by the Attorney 
General pursuant to Section 5 of the Voting Rights Act, 
see 42 U.S.C. § 1973c. The current plan first was attacked 
unsuccessfully as an unconstitutional political gerrymander 
directed against Republicans. Pope v. Blue, 809 F.Supp.
392 (W.D.N.C. 1992), affirmed 506 U.S. _____, 113 S.Ct.
30 (1992). Then on March 28, 1992, the five plaintiff- 
appellants filed an action against various Federal and 
State officials in which they alleged that the redistricting 
plan was an unconstitutional racial gerrymander.

The district court granted motions to dismiss as to 
all the defendants, although Chief Judge Voorhees 
dissented from the ruling that the plaintiffs had failed to 
state a claim for relief against the State defendants. Shaw 
v. Barr, 808 F.Supp. 461 (E.D.N.C. 1992). Upon appeal, 
this Court upheld the dismissal below of the Federal 
defendants; but it decided that, under the Equal 
Protection Clause of the Fourteenth Amendment, the five 
plaintiffs had stated a claim for relief against the State 
defendants. Shaw, supra 2 The case was remanded to the 
three-judge court for it to decide whether the redistricting 
plan was a racial gerrymander, as the plaintiff-appellants 
had alleged, and, if so, whether the plan was justified by 
"a compelling governmental interest" and was "narrowly 
tailored". (Shaw, 113 S.Ct. at 2832)

Upon remand, the district court allowed twenty-two 
registered voters from various congressional districts to 
intervene as defendants. Eleven other registered voters

2 The Court did not find it necessary to decide whether plaintiffs 
had also stated a claim for relief under Article I, § 2 of the 
Constitution or under the Fifteenth Amendment.



5

were permitted to intervene as plaintiffs.3 Extensive 
discovery then commenced with defendants taking the five 
plaintiffs’ depositions; and thereafter the various parties 
deposed numerous experts, as well as some legislators and 
lay witnesses. In some instances, discovery was limited by 
an order of the district court which recognized a 
"legislative privilege" on the part of the General 
Assembly’s members and staff.

After discovery had been completed, the plaintiff- 
intervenors moved to enjoin the defendants from 
conducting any further election under the current 
redistricting plan. Over Chief Judge Voorhees’ dissent, 
the motion was denied. Likewise, the plaintiffs failed in 
their motion in limine to prevent the defendants from 
offering evidence based on census data and socioeconomic 
information which had not become available until January 
1993 -  a year after enactment of the redistricting plan.

On March 28, 1994, a six-day trial commenced, at 
which each of the four groups of parties was allowed to 
call one expert and one lay witness, as well as to offer in 
evidence extensive stipulations, depositions, and other 
documentary evidence.4 On August 1, 1994, judgment was 
entered for the defendants with Chief Judge Voorhees

3 Jack Hawke, the Chairman of the Republican Party of North 
Carolina, was allowed to intervene individually as a plaintiff, but not 
in his official capacity.

4 Also, at a computer workstation the three judges viewed a 
demonstration of how computer technology and census bloc 
information had been used together to draw the boundaries of 
congressional districts in North Carolina.



6

dissenting; and majority and dissenting opinions were 
filed. On August 22, 1994, amended opinions were filed. 
Meanwhile, the plaintiffs had moved to amend and add 
findings pursuant to Fed. R. Civ. P. 52(b); but this motion 
was denied on September 1, 1994 — again over the dissent 
of Chief Judge Voorhees. Plaintiffs and plaintiff- 
intervenors all duly filed notices of appeal.

THE QUESTIONS PRESENTED ARE 
SUBSTANTIAL

On their prior appeal, the five plaintiff-appellants 
presented squarely to this Court the question of whether 
they could attack a racially gerrymandered redistricting 
plan which had been enacted by the General Assembly in 
order to assure that two African-Americans would be 
elected to Congress from North Carolina. Reversing the 
majority decision of the three judges, this Court ruled 
that, as registered voters, the plaintiffs -  regardless of 
their race — had stated a claim for relief. However, upon 
remand, it would be necessary for them to prove their 
allegations at trial; and, if they did so, the plan would be 
subject to "strict scrutiny" to "determine whether the 
North Carolina plan is narrowly tailored to further a 
compelling governmental interest". (113 S.Ct at 2832)

By m eans of overwhelming direct and 
circumstantial evidence -  and over the defendants’ 
stubborn opposition5 -  the plaintiffs convinced all three

5 During the oral argument before this Court, Mr. Powell, who 
represented the State defendants, responded to a question from the 
Court: "There’s no dispute here over what the State’s purpose is.

(continued...)



7

judges of the court below that the redistricting plan is a 
racial gerrymander. Moreover, the district court properly 
interpreted Shaw to mean that voters of all races have 
standing to attack North Carolina’s racial gerrymander.6

5(...continued)
There’s a dispute over how to characterize it legally, but we’re not in 
disagreement over what the State legislature was trying to do" 
(Transcript of Oral Argument at p.38). As plaintiff-appellants 
interpreted this statement, the State conceded that the redistricting 
plan was a racial gerrymander, but contended that such a 
gerrymander was constitutional. Nonetheless, upon remand, the 
defendants hotly contested that a racial gerrymander had been 
enacted.

6 The evidence at trial made clear that plaintiffs Shaw and 
Shimm, who reside in the Twelfth Congressional District, not only 
have suffered injury to their "personal dignity" by being assigned to 
vote on a racial basis but also have suffered other injury. The shape 
of the "bizarre" district in which they have been placed reflects its 
purpose to guarantee that an African-American will be elected to 
Congress; and white voters like plaintiffs Shimm and Shaw perceive 
that the Representative elected from the district is "more likely to 
believe [his] primary obligation is to represent only "African- 
Americans:. See Shaw, 113 S.Ct. at 2832. This perception of having 
"second class status" discourages these voters from participating 
actively in congressional primaries and elections. [Transcript 1089- 
1090 (Shimm Testimony)]. The correctness of their perception was 
corroborated recently when Twelfth District Congressman Melvin 
Watt stated during a panel discussion "that it adds to the debate to 
be able to bring up a perspective without catering, or having to cater 
to the business or white community." [Transcript p. 999, (Watt 
Testimony)] (emphasis supplied). [See also footnote 5 of Chief Judge 
Voorhees’ dissent, (App. J.S, 128a)] Congressman Watt’s mindset is 
also revealed by his statement on the McNeilll-Lehrer television 
program that he had "characterize^] Justice O’Connor’s opinion in 
Shaw as "racist". [Transcript 995 (Watt Testimony)]. Plaintiffs Shaw

(continued...)



8

Consequently, the district court was required to apply the 
"strict scrutiny" test to the gerrymander; and its 
misapplication of that test presents on this appeal the 
substantial and important questions of what constitutes a 
"compelling State interest" and when a racially 
gerrymandered plan is "narrowly tailored".7

This appeal also presents substantial and important 
questions about the methodology employed by the court 
below in applying the "strict scrutiny" test. Paradoxically, 
the burden was placed on the plaintiffs of persuading the 
factfinders that there was no "compelling State interest" 
and that the gerrymander was not "narrowly tailored" 
(App.J.S. 42a-43b). Furthermore, despite an extensive 
legislative record to the contrary, the majority in the 
district court accepted "post hoc rationalizations" in 
assuming the presence of a legislative intent which could

6(...continued)
and Shimm, along with all other voters in the Twelfth District, were 
specially injured by being placed in that district because its confusing 
boundaries and its bisecting of several Metropolitan Statistical Areas 
(MSA’s) and media markets make the district "dysfunctional". 
[Transcript pp. 209, 219-220, 232 (O’Rourke Testimony)]

7 The importance of these questions is underscored by the fact 
that three-judge district courts in Louisiana, Texas, and Georgia have 
also been recently required to apply the "strict scrutiny" test to racially 
gerrymanderered congressional redistricting plans. [See Hays v. 
Louisiana, 839 F.Supp. 1188 (W.D.La. 1993) (Hays I) vacated, 
Louisiana v. Hays, 114 S.Ct. 2731, adopted by reference, Hays v. 
Louisiana, (Hays II) No. 92-1522 (W.D.La. 1994); Vera v. Richards, 
supra, n.l; Johnson v. Miller, No. 194-008 (S.D.Ga. Sept.12, 1994)



9

not possibly have existed.8 This Court should decide 
whether these evidentiary rulings were contrary to the 
spirit and purpose of the "strict scrutiny" test.9

I. The Evidence Reveals Clearly that 
N o r t h  C a r o l i n a ’ s R a c i a l l y  
Gerrymandered Redistricting Plan Did 
Not Further A Compelling State Interest.

Having found on remand that the plaintiffs had 
proved the redistricting plan to be a racial gerrymander, 
the three-judge district court should have subjected it to 
"strict scrutiny". Shaw, supra\ c f Richmond v. J.A. 
Croson Co., 488 U.S. 469 (1989). Unfortunately, only 
Chief Judge Voorhees applied this test correctly -  while 
the majority below ignored undisputed evidence which 
demonstrated the absence of any "compelling State 
interest".

The majority’s first mistake was in stating the issue 
to be whether the State "had a compelling interest in 
enacting any race-based redistricting plan" — rather than 
"enacting the particular race-based redistricting plan under 
challenge" (App.J.S. at 43a-44a) (emphasis in original). In 
this way, the burden to be carried by the State was

8 The majority inferred the legislative intent from census data 
and socioeconomic information which only became available a year 
after Chapter 7 was enacted. This technique for determining 
legislative intent was criticized in Hays I, supra, n.7

9 The erroneous evidentiary rulings in the court below led to 
clearly erroneous findings. Plaintiff-appellants attempted to clarify 
the record for appellate review by moving under Rule 52(b) to amend 
and add findings; but this motion was denied.



10

reduced far below what Shaw had in mind in requiring 
that "strict scrutiny" be given to racial gerrymanders.

Under Shaw it should be immaterial that the State 
might be able to imagine a "compelling governmental 
interest" in enacting some hypothetical redistricting plan — 
such as a plan which is "race-based" in that it seeks to 
avoid splitting neighborhoods in which African-Americans 
or Native Americans are concentrated. The real question 
that the court below should have answered was whether 
North Carolina had a "compelling governmental interest" 
in enacting a redistricting plan which, in order to create 
two majority- black districts and guarantee the election of 
two African-Americans to Congress, ignored traditional 
redistricting principles, such as compactness, 
contiguousness, communities of interest, and maintenance 
of the integrity of political subdivisions. On the evidence 
at trial, the answer to that question should have been in 
the negative.10

The majority in the court below stretches the facts 
in a vain attempt to give an affirmative answer to its 
misleading question whether "any race-based redistricting 
plan" could have been justified by "the State’s compelling 
interest in complying with the Voting Rights Act". 
(App.J.S. 7a, 44a-57a) According to its version, after the

10 It is doubtful that any state interest could be so "compelling" 
as to permit the total disregard of traditional redistricting principles 
which is manifested by the North Carolina racial gerrymander. Shaw 
indicates that a majority-black district can only be created when the 
State "employs sound districting principles" and only when the 
affected racial group’s "residential patterns offer the opportunity of 
creating districts in which they will be in the majority". 113 S Ct 
2832.



11

first redistricting plan was denied preclearance, the 
General Assembly "reasonably concludefd], after 
conducting its own independent reassessment of the 
rejected plan in light of the concerns identified by the 
Justice Department, that the Justice Department’s 
conclusion is legally and factually supportable". (App.J.S. 
at 54a)

From the summer of 1991, when the first 
redistricting plan was enacted, until after it was denied 
preclearance on December 18, 1991, State officials 
consistently took the position that the first plan -  which 
contained only one minority-black district — adequately 
complied with the Voting Rights Act. Moreover, even 
after the denial of preclearance, a court action in the 
District of Columbia was considered by the General 
Assembly — until a method was suggested for satisfying 
the demands of the Department of Justice and at the 
same time protecting Democratic incumbents and 
candidates. Clearly the enactment of the redistricting plan 
was not the result of a newly-formed belief by the General 
Assembly that two majority-black congressional districts 
were necessary to comply with Sections 5 and 2. Instead, 
the legislature made a tactical choice to accede to 
demands by the Attorney General that were generally 
perceived as unreasonable.11

11 In their answer, the State defendants alleged that the 
Attorney General’s "interpretation of the Voting Rights Act...required 
the creation of two majority-minority congressional districts in North 
Carolina" (Defendants Answer para.23); that to "comply with Section 
2 of the Voting Rights Act, the State was required to enact a 
congressional redistricting plan with two majority-minority districts in

(continued...)



12

Shaw recognized that states have an interest "in 
complying with federal antidiscrimination laws that are 
constitutionally valid as interpreted and as applied." 113 
S.Ct. 2830 (emphasis supplied). By negative implication 
this statement suggests that a state has no "compelling 
interest" in complying with requirements for Section 5 
preclearance which far exceed the intent of the Voting 
Rights Act and violate the Equal Protection Clause. 
Certainly Shaw did not intend to immunize racial 
gerrymanders enacted by a legislature which surrendered 
to unreasonable interpretations of the Voting Rights Act 
by the Attorney General. Otherwise, in practical effect, 
the Civil Rights Division could expand the Voting Rights 
Act beyond what Congress intended or the Constitution 
permitted.12

The undisputed evidence offered at trial makes 
clear that the Civil Rights Division was using its 
preclearance power under Section 5 to rewrite the Act by 
requiring proportionate representation. On January 24, 
1992 — the day when the current redistricting plan was

11(...continued)
order to avoid dilution of African-American voting strength". (Ans. 
Fifth Defense) In effect, these allegations admit the fact, 
demonstrated by uncontradicted evidence, that the General Assembly 
enacted the second redistricting plan, because otherwise preclearance 
would be denied by the Civil Rights Division and not because of any 
"independent reassessment of the rejected plan".

12 Furthermore, a State’s interest in obtaining preclearance from 
the Department of Justice is not "compelling", because the State has 
available to it the alternative of seeking preclearance in the District 
Court of the District of Columbia with direct appeal to the Supreme 
Court. 42 U.S.C. § 1973c.



13

enacted — Senator Dennis Winner, the Chairman of the 
Senate Redistricting Committee, described to the North 
Carolina Senate what had occurred at a meeting that he, 
Speaker Daniel Blue, and others had with Assistant 
Attorney General John Dunne on December 17,1991, the 
day before preclearance had been denied: 13

And I could not figure out why they 
called us up there and don’t understand 
that to this day. And Mr. Dunne, some 
of the staff asked a question or two or 
said — made an occasional comment, Mr.
Dunne did most of the talking. The 
essence of what he said at that meeting 
was -  and he said this in different ways 
over, and over, and over again -- you 
have twenty-two percent black people in 
this State, you must have as close to 
twenty-two percent black Congressmen, 
or black Congressional Districts in this 
State. Quotas.

13 See Daily Proceedings in the Senate Chamber for Friday, 
January 24, 1992, at p. 4. At his pretrial deposition, Senator Winner 
waived his "legislative privilege" and testified that, at the meeting in 
Washington on December 17, 1991, Assistant Attorney General 
John Dunne had told him and other representatives of the General 
Assembly, "that we ought to have a quota system with respect to 
minority seats. You had 22 percent blacks in this state. Therefore, 
you ought to have as close to that as you could have of congressional 
districts. That is really all I remember about it . . . .  1 think his 
substance was really that you had -  if you had 22 percent blacks in 
North Carolina that you ought to have 22 percent minority 
congressional seats. Whatever shape didn’t matter." (Winner 
Deposition Jan. 11, 1994. pp. 6, 10, 17-19)



14

Senator Winner’s account of the position taken by 
Assistant Attorney General Dunne is corroborated by the 
language of Dunne’s letter of December 18, 1994, denying 
preclearance. Also, it fits perfectly with the findings of 
other three-judge district courts that the Civil Rights 
Division required maximization of majority-black districts 
as a requirement for preclearance of redistricting plans in 
Louisiana and Georgia. See Hays I, supra; Johnson v. 
Miller, supra

Maximization of majority-minority districts is not 
required by the Voting Rights Act Johnson v. DeGrandy,
___U .S .__ j  114 S.Cl 2647 (1994). Indeed, as the three-
judge district court explained in footnote 21 of Hays, 
supra, the Civil Rights Division’s insistence on 
maximization of majority-minority districts not only is 
unauthorized by the Voting Rights Act but also 
contravenes Section 2’s prohibition of requiring 
proportional representation.14 Yet that insistence, to 
which the General Assembly of North Carolina 
capitulated, was erroneously relied on by the majority in 
the court below to find "a compelling State interest" which 
overcomes the equal protection rights of the plaintiff- 
appellants.15

14 (839 F.Supp. 1196-7, n.21). In his majority opinion in 
Johnson v. Miller, supra, Judge Edenfield has described in some detail 
the questionable and coercive tactics used by the Civil Rights Division 
in its effort to make the Georgia legislature follow a policy of 
maximizing majority-black districts.

15 To allow a "Nuremberg defense" and find as a "compelling 
interest" that the State was forced to comply with the Section 5 
preclearance requirements imposed by the Civil Rights Division tends

(continued...)



15

The majority in the court below also found that the 
denial of preclearance caused the General Assembly to 
become fearful that any redistricting plan without two 
majority-black districts would violate Section 2 of the 
Voting Rights Act, 42 U.S.C. § 1973. To this end, the 
majority equated the letter of December 18, 1991 denying 
preclearance to "an ’administrative finding’ that its 
proposed plan violates the anti-discrimination provisions 
of the Voting Rights Act, which is sufficient — unless 
clearly legally and factually unsupportable — to justify its 
adoption of a race-based alternative plan designed to 
remedy that violation". (App.J.S. p. 54a, n. 34)

Treating the letter in this manner gives it an effect 
not suggested by its language. Moreover, Congress never 
intended that a denial of preclearance by the Civil Rights 
Division would give rise to a "compelling State interest" in 
enacting a racial gerrymander. In any event, the 
"administrative finding" by Assistant Attorney Dunne was 
"clearly legally and factually unsupportable" because of its 
false premise that the maximization of minority-black 
districts is required by the Voting Rights Act.

The three preconditions for establishing vote 
dilution in multi-member districts in violation of Section 
2 are that a minority group be "sufficiently large and 
geographically compact to constitute a majority in a 
single-member district"; that it be "politically cohesive"; 
and that "the white majority votje] sufficiently as a block 
to enable it...usually to defeat the minorities preferred

15(...continued)
to induce collusion between the Department of Justice and State 
legislatures in creating racial gerrymanders.



16

candidates". Johnson v. DeGrandy, supra; Thornburg v. 
Gingles, 478 U.S. 30, 50-51 (1986). The same 
preconditions apply to single-member congressional
districts. Growe v. Emison,501 U.S.____, 113 S.Ct. 1075
(1993).

As this Court recognized in Shaw, the black 
population of North Carolina is "relatively dispersed; 
blacks constitute a majority of the general population in 
only 5 of the State’s 100 counties" (113 S..Ct. at 2820). 
Consequently, a congressional redistricting plan would 
not violate Section 2 of the Voting Rights Act, even if it 
contained no majority black districts.16

After enacting the first redistricting plan — which 
had only one majority-black district — the General 
Assembly contended for months that it complied fully with 
Section 2 and that because of the lack of "geographical 
compactness" of the black population, Gingles did not

16 In North Carolina the second Gingles precondition is met, for 
ninety-five percent or more of the African-American voters are 
registered as Democrats and they vote cohesively for black 
Democratic candidates. On the other hand, the third precondition is 
absent. White voters in North Carolina are less cohesive than blacks 
and often are disposed to vote for black candidates against whites.
(Keech Deposition, (passim) For example, in her deposition, (at p. 

34) plaintiff Shaw testified in response to defendants’ questions that 
in 1982 and 1984 she had voted in the Democratic congressional 
primary for an African-American candidate against a white candidate. 
As a result of "white crossover", a number of African-Americans have 
been nominated or elected for local and state office even when black 
voters were not in the majority.



17

apply17 Under these circumstances, the effort by the 
majority in the court below to find a "compelling State 
interest" in the imagined desire of the General Assembly 
to avoid a Section 2 violation is devoid of any factual or 
legal basis.

Although the majority purports to invoke various 
other "compelling State interests", clearly its real concern 
is with the "interest" in guaranteeing greater racial 
diversity of North Carolina’s congressional delegation in 
order to make reparations for the absence of any black 
member of Congress from North Carolina since 1901. 
Thus, the majority opinion refers in its "Conclusion" to 
"the inability of any African-American citizen of North 
Carolina, despite repeated responsible efforts, to be 
elected in a century". (App.J.S. at 114a). Consequently, 
the question is raised whether, by means of a racial 
gerrymander, a state may establish racial quotas for its 
congressional delegation because of a "compelling 
interest" in rectifying supposed past discrimination.

To use quotas, however, furthers no "compelling 
interest" but, instead, leads only to the disaster of 
"Balkanization" and racial polarization. Especially when 
traditional redistricting criteria are disregarded and

17 As the legislative record shows, Daniel Blue, the Speaker of 
the House of Representatives, and 'Toby" Fitch, a co-chairman of 
the House’s Redistricting Committee — both of whom are African- 
Americans — signed submissions to the Department of Justice which 
were intended to make clear that the Gingles preconditions were not 
met. In his deposition, Senator Winner stated that it had been his 
belief that Section 2 of the Voting Rights Act did not require the 
creation of even one minority-black congressional district in North 
Carolina.



18

"bizarre" districts are formed, the State sends a clear 
message that it accepts and relies on racial stereotypes 
and, by so doing, perpetuates and reinforces those 
stereotypes and destroys confidence in the electoral
process. Cf., J.E.B. v. Alabama ex rel. T.B., ___U.S.___
114 S.Ct. 1419 (1994) (condemning reliance on gender 
stereotypes).18

Furthermore, some of the burden of the quotas 
falls upon voters who had no connection with the past 
discrimination. Thus, plaintiff Shaw, who moved to North 
Carolina from Minnesota, and plaintiff Shimm, who came 
from New York, had no part to play in any past 
discrimination against blacks in North Carolina;19 and yet, 
they have been placed in a dysfunctional minority-black 
congressional district, where they correctly perceive that 
they have "second-class status" and that their political 
participation is discouraged. Indeed, the mobility of the 
American population (see Stipulation 146) allows little 
relationship to exist between those whites who perpetrated 
past discrimination against blacks and those whites 
subjected to the burdens of racial gerrymandering — or 
between the blacks who were the victims of past

18 The Court seems to be increasingly committed to the view 
that States must be neutral with respect to their citizens and groups 
of citizens. Cf, Board o f Education ofKiryasJoel Village School District
v. Grumet, __ U.S.___, 114 S.Ct. 2481 (1994) (disapproving
boundaries of school district gerrymandered to further religious 
instruction).

19 Ironically, as Professor Shimm testified in his deposition, 
members of his family had undergone persecution in the Holocaust; 
and he personally had been a victim of discrimination — rather than 
a perpetrator.



19

discrimination and those blacks who are now the intended 
beneficiaries of racial quotas for political office.

The majority’s rationale also is based on the false 
premise that African-Americans can be elected to 
Congress from North Carolina only from majority-black 
districts. Since approximately 95% of the registered black 
voters in North Carolina are Democrats and the 
Democrats have closed primaries, a good opportunity 
exists for an African-American to obtain the Democratic 
nomination and be elected from a district where blacks 
are not a majority. In a number of recent elections, 
blacks have won local and statewide offices in races 
against whites. Moreover, in order to enhance the 
opportunity for minority candidates to be elected, the 
General Assembly changed the election laws in 1989 to 
dispense with a second primary if the leader in the first 
primary received more than 40% of the votes cast. 
(N.C.G.S. § 163-111; Stipulation 127).

The reference by the majority in the court below 
to "repeated responsible efforts" of African-Americans to 
be elected to Congress is misleading. The only serious 
efforts were in the Second District. The first two of those 
efforts by black candidates (Eva Clayton and Howard 
Lee) were against an experienced and well-entrenched 
incumbent (L. H. Foutain). The more recent efforts were 
in 1982, when an African-American candidate (H.M. 
Michaux, Jr.) received 46% of the vote in the Democratic 
primary in the Second District; 20 and in 1984, when a

20 Under the 1989 change in the election code, H.M. Michaux, 
Jr., the African-American, who led in the first primary and received

(continued...)



20

different African-American candidate received 48% of 
the vote.21 Under these circumstances, there is ample 
reason to believe that in some congressional districts 
drawn pursuant to traditional redistricting principles 
African-Americans would be elected from North 
Carolina.22

Even if it were assumed that blacks can only be 
elected to Congress from North Carolina if majority-black 
districts are created, the substantial question remains 
whether the interest in achieving this diversity is so 
"compelling" as to justify the creation of dysfunctional 
congressional districts that totally disregard traditional 
redistricting principles such as compactness, 
contiguousness, communities of interest, and maintaining 
the integrity of political subdivisions. In an extensive 
footnote, the majority in the court below opines that 
"objective evidence" reveals — "perhaps counter-intuitively"

20(... continued)
more than 40% of the vote, would have won the Democratic 
nomination.

21 Both African-American candidates were from Durham, and 
received many "white crossover" votes from white voters such as 
plaintiff Shaw. In 1984, Kenneth Spaulding, the black candidate, ran 
against Tim Valentine, who had defeated Michaux two years before 
and was now an incumbent. Thus, the increased percentage of the 
vote for the African-American candidate is even more significant.

22 In view of the small number of black candidates for Congress 
until 1992, it is a fallacy to conclude — as did the majority below — 
that blacks could not be elected from North Carolina without a racial 
gerrymander. The same logic would lead to the erroneous conclusion 
that because women had never been elected to Congress in the past 
they could not be elected without the benefit of a quota.



21

— that "bizarre", "ugly" shapes really make no difference 
because, in due course, voters will learn who represents 
them in Congress. (App.J.S.. at p. 106a, n. 60).

This observation by the majority brushes aside as 
irrelevant the evidence at trial concerning confusion on 
the part of voters as to their district and their 
representative.23 It ignores evidence that, according to a 
poll commissioned by the State defendants in the fall of 
1993, only 6% of the voters knew who was their 
congressman.24 25 It disregards the adverse effects on 
"political access" of having districts like the Twelfth -  
which is not compact and extends through three 
Metropolitan Statistical Areas (MSA’s) and three media 
markets.-5 Finally, it is at odds with the purpose of

23 For example, the affidavit of David Stradley (Exhibit 104) 
describes the confusion in his princinct, the Chambersburg precinct 
in Iredell County, which is split among three congressional districts. 
The headline "2nd, 12th District lines still unclear for many voters”, 
which appeared in the Durham, North Carolina Herald-Sun on 
November 9, 1994 (at p.A7), attests to the continuing confusion of 
voters about the boundaries of congressional districts.

24 According to the poll, which was commissioned by the State 
and conducted in October and November 1993, only 6% of those 
polled in the Twelfth District knew that their congressman was Melvin 
Watt. On the other hand, 6% believed their congressman was 
[Senator] Jesse Helms; 8% believed their congressman was Alex 
McMillan [who represented the Ninth District] and 12% believed 
their congressmana was Howard Coble, [who represented the Sixth 
District], [Transcript at 841-842, 866-869 (Lichtman Testimony)].

25 Professor Timothy O’Rourke explained that a geographically 
compact congressional district serves in many ways the interests of

(continued...)



22

2 U.S.C. § 2(c), which requires single-member 
congressional districts.26

Implicit in the majority’s opinion is the view that a 
state has a compelling interest in guaranteeing "descriptive 
representation".27 This view is based on a racial 
stereotype — only a black officeholder can adequately 
represent blacks28 — that Shaw condemns.29 This Court

25(...continued)
"political access" of voters to their representatives and to candidates 
for office. [Transcript, pp. 209-220 (O’Rourke Testimony)]

26  Presumably, the requirement of single-member districts was 
imposed in order to enhance "political access" to Representatives. 
Congress did not require that a member of Congress reside in the 
district from which he or she is elected. However, it probably never 
contemplated that — as happened in North Carolina on November 8, 
1994 -- Sue Myrick, who resides in the Twelfth District, would be 
elected to Congress from the Ninth District (see The Herald-Sun. 
Durham, N.C., November 10, 1994 (at C-3) and that Walter Jones, 
Jr., who resides in the First District, would be elected to Congress 
from the Third District.

27  In her recent book about the representation of black interests 
in Congress, Carol Swain, an African-American political scientist, 
makes the important distinction between "descriptive representation" 
-  representation by black officeholders -  and "substantive 
representation" — representation by someone who advances the 
interests of black voters. See Swain, Black Faces. Black Interests. 
page 5 (1993).

28 The logical, but equally unacceptable, corollary would be that 
only white officeholders can adequately represent the interests of 
white voters.

(continued...)



23

should now decide whether Shaw permits reliance on 
such racial stereotypes to establish a "compelling State 
interest" which justifies a racial gerrymander.

II. North Carolina’s Redistricting Plan 
Was Not "Narrowly Tailored"

Even the majority in the court below concedes that 
the two majority-black districts "are not the two most 
geographically compact., that could have been created 
were no factors other than equal population requirements 
and effective minority-race voting majorities taken into 
account" (Finding 4, AppJ.S. p.KWa).29 30 The ensuing 
attempt to excuse this lack of compactness (see Findings 
5 and 6) raises substantial questions both as to whether 
"narrow tailoring" has been established and as to the 
legitimacy of the methodology the majority employed.31

The requirement of "narrow tailoring" suggests the

29(...continued)
29 The rejection of racial stereotypes in Shaw follows a line of 

cases stemming from Batson v. Kentucky, 476 U.S. 79 (1986). 
Recently, in extending Batson to prohibit gender-based peremptory 
challenges, this Court denounced gender stereotypes, J.E.B. v. 
Alabama ex rel. T.B., supra.

30 According to a study, North Carolina’s Twelfth District is the 
least "geographically compact" out of all 435 districts in the United 
States. Moreover, North Carolina has four of the 28 least 
geographically compact congressional districts. [Transcript p. 217 
(O’Rourke Testimony)].

31 The majority’s dubious methodology is the subject of question 
III in this Jurisdictional Statement.



24

need for an effort to match the remedy with the supposed 
harm.32 No such effort was made in drawing North 
Carolina’s redistricting plan. For example, at the time of 
redistricting, blacks in the Twelfth District were registered 
to vote at a slightly higher rate (54.71%) than whites 
(53.34%). Only two of the ten counties bisected by the 
Twelfth District are among the 40 North Carolina 
counties which have been subject to preclearance at any 
time; and only 73.4% of the voters in the Twelfth District 
reside in the eight counties never covered under Section 
5. Futhermore, of the forty counties covered under 
Section 5, sixteen are outside either the First or Twelfth 
District.33

Thus, many of the persons who were subjected to 
the most baneful effects of the racial gerrymander did not 
reside in the areas where blacks had not been 
participating equally in the electoral process when the 
Voting Rights Act was enacted. Also, many of the 
African-Americans who received the supposed benefits of 
being placed in minority-black districts were not those 
who at some earlier time had been precluded from equal 
political participation. These disparities reflect the 
absence of "narrow tailoring".

32 Cf Richmond v. JA. Croson Co., supra. Insistence on this
matching would parallel the imposition of due process requirements 
of "essential nexus", "rough proportionality", and "individualized 
determination" when property is taken for a paublic purpose. Dolan 
v. City o f Tigard,___ U.S.____, 114 S.Ct. 2309 (1994).

33 Because of their proximity to the majority-black districts, 11 
of the 16 covered counties could readily have been included in such 
districts if the General Assembly had "narrowly tailored" the districts 
to remedy past discrimination.



25

The finding by the majority in the district court 
that there were "internally homogeneous commonalities of 
interest" in the majority-black districts is at odds with the 
testimony of defendants’ witness, Gerry Cohen, that the 
blacks residing in the major cities of the Twelfth District 
"have been tied together with corridors with a requisite 
number of whites to meet the one-person, one-vote 
standard". 34 Thus, "homogeneity" was equated with race 
in a manner condemned by Shaw. Furthermore, the 
creation of these "corridors" violated the equal protection 
rights of whites by purposefully directing against them the 
adverse effects of the fragmentation of precincts and 
census blocks.35

The majority’s description of the "homogeneity" of 
the "rural" First District is irreconcilable with the 
undisputed evidence that the First District divides twelve 
towns with a population of 10,000 or more; 36 and the

34 [Transcript at p. 614 (Cohen Testimony)] Cohen played the 
major role for the General Assembly in using computer technology to 
draw the districts; and he personally operated the computer terminal 
utilized for this purpose. Plaintiff-appellants Shaw and Shimm live in 
one of the "corridors of whites" to which Cohen alluded.

35 To create two majority-black districts, it was necessary to 
divide various precincts and even census blocks. Predominantly white 
precincts and census blocks were divided, but predominantly black 
were not. [Transcript pp. 496, 613, 614 (Cohen Testimony); 
Transcript pp. 94-100, 106, 107, 189, 190 (HofeUer Testimony)] .

36 Fayetteville has a population of 75,928, of which 20, 337 
blacks and 5,940 whites were placed in the First District; Greenville 
has a population of 45,000, of which 13,197 blacks and 5,082 whites

(continued...)



26

entire legislative record — which was an exhibit at trial -- 
contains no reference to the "distinctiveness" and 
"homogeneity" of the voters placed in the two majority- 
black districts.37 Moreover, because the districts were 
drawn by use of computer technology to display North 
Carolina’s 229,000 census blocks on the computer screen,38 39 
and the only data then available concerned race, 
"homogeneity" could only be sought by relying on race. 
Thus, the majority’s finding as to "homogeneity" of the 
districts stems from the very same racial stereotypes which 
this Court condemned in Shaw?9

36(...continued)
were placed in the First Disitrict; and from the seaport city of 
Wilmington 15,369 blacks and 4,660 whites were placed in the First 
District. [Transcript at pp. 609-611 (Cohen Testimony)] Like the 
"urban" Twelfth District, the "rural" First District divides twelve towns 
with a population of more than 10,000; and for census purposes such 
towns are "urban".

37 [Transcript at pp. 1028, 1037, 1041, 1046-1048 (Pope 
Testimony)]. If the General Assembly sought to attain "homogeneity", 
this goal existed only as to blacks — and not as to whites. Any such 
race-based disparity of treatment would itself violate the Equal 
Protection Clause.

38 Likewise, the General Assembly computer was used to draft 
Chapter 7, the lengthy and detailed redistricting statute. (App.J.S. pp. 
169a-240a) A cursory examination of this statute makes obvious that 
a legislator would find it impossible to draw any conclusion aabout 
the "internal homogeneity" of the twelve districts created by that 
statute.

39 The three-judge district court made this point in Hays I. 
Moreover, even if greater "homogeneity" in socioeconomic

(continued...)



27

Even if incumbent protection" — another goal of 
North Carolina’s racial gerrymander — might sometimes 
be a permissible goal of redistricting, it has nothing to do 
with remedying past racial discrimination and is at odds 
with "narrow tailoring".40 However, the North Carolina 
racial gerrymander went beyond "incumbent protection" to 
protect Eva Clayton, then only an announced candidate, 
by moving Vance County from another district into the 
First District. [Transcript at 590, (Cohen Testimony)] 
Also, the boundaries were drawn in a way that would 
permit two black members of the General Assembly to 
run at some future time. [Transcript at 591-592, (Cohen 
Testimony)] Indeed, as part of the "narrow tailoring", 
the North Carolina House of Representatives transferred 
to the First District 131 residents of Wayne County, of 
whom 110 were white, in order "to needle the president 
pro tempore of the Senate". [Transcript 611 (Cohen 
Testimony)]

Some black precincts in Winston-Salem, one of the 
largest cities in North Carolina, were at one point to be 
included in the majority-black Twelfth District. However, 
they were transferred to another district and replaced by 
some black populations in a smaller city, Gastonia; and 
these were connected to the Twelfth District by a narrow 
corridor. [Transcript 977 (Watt testimony)] This change

39(...continued)
characteristics might be attained by grouping persons according to 
race, this is not a valid justification for such grouping.

40 Perhaps some of the incumbents being protected had been 
elected to office initially as a result of past discrimination against 
African-Americans.



28

was at odds with any goal of achieving "homogeneous 
communities of interest".41 Once again there is revealed 
the absence of the "narrow tailoring" which the Court 
referred to in Shaw. Cf. Richmond v. J. A. Croson., supra.

The majority found that the General Assembly 
sought to maintain "technical territorial contiguity" 
(App.J.S. 109a). This refers to an effort by draftsmen of 
the North Carolina plan to comply in form with the 
standard of "contiguity" while ignoring it in substance. 
For example, in some instances, portions of a North 
Carolina congressional district will touch another only at 
an imaginary point shown on a computer screen. 
Moreover, North Carolina’s plan has employed the unique 
and unprecedented device of the "double crossover" — a 
single imaginary point at which each of two Districts is 
"contiguous". 42 The Court should decide whether under 
Shaw such redistricting practices are included within 
"narrow tailoring".

III. The District Court Misallocated The 
Burden Of Persuasion And Erroneously 
Relied On Post Hoc Rationalizations

In their answer, the defendants attempted to allege

41 On the other hand, the transfer favored a black candidate 
from the Charlotte area like Melvin Watt. (Ibid.)

42 [Transcript at pp. 212, 276-277 (O’Rourke Testimony)]. For 
example, there is a "double crossover" between the First and Third 
Districts: no one can go from the eastern to the western part of the 
Third District without going through the First District; nor can 
anyone go from the northern to the southern part of the First District 
without going through the Third District.



29

affirmatively that the redistricting plan was "narrowly 
tailored" to further a "compelling State interest"; and the 
district court properly imposed on them the burden of 
producing evidence as to these defenses. It should also 
have placed the burden of persuasion on the defendants, 
for usually a party bears this burden as to its affirmative 
allegations and as to issues on which it must produce 
evidence. See 9 Wigmore, Evidence § 2486 (Chadboume 
Rev. 1981); 2 McCormick, Evidence § 337 (4th Ed. 1992). 
Still another reason to place the burden of persuasion on 
the defendants was because they invoked "legislative 
privilege" to prevent plaintiffs from obtaining evidence 
about some of the events that preceded enactment of the 
racial geriymander by the General Assembly.43 See 
Wigmore, supra, § 2486. Under such circumstances, 
relieving the defendants of the burden of persuasion as to 
"compelling State interest" and "narrow tailoring" is 
inconsistent with "strict scrutiny".44

When the redistricting plan was enacted by the 
General Assembly in January 1992, it lacked census

43 For example, when defendant Daniel Blue, the Speaker of the 
House, who had been active in the redistricting process, was deposed 
by plaintiffs, he invoked legislative privilege. When the plaintiffs 
subpoenaed former Assistant Attorney General John Dunne to take 
his deposition, the United States — an ally of the defendants — 
moved to quash the subpoena; and he never testified.

44 In Shaw, the Court commented that the State must have a 
"strong basis in evidence for [concluding] that remedial action [is] 
necessary". 113 S.Ct. 2832. This comment is inconsistent with 
allowing the burden of persuasion to be placed on plaintiffs except to 
show that the legislature purposefully created race-based districts 
which violate sound redistricting practices.



30

socioeconomic data which only became available a year 
later. Therefore, apart from data as to the racial 
composition of census blocks, the legislature had no basis 
for drawing the exceptionally contorted district lines 
detailed in Chapter 7 (App.J.S. 169a-240a). For the 
majority to attribute a benign purpose to the drawing of 
these lines is a "post hoc rationalization" -- correctly 
criticized in Hays I, supra. Under these circumstances it 
is "contrary to precedent as well as to sound principles of 
constitutional adjudication for the courts to base their 
analyses on purposes never conceived by the lawmakers". 
See. Kassel v. Consolidated Freightways Corp., 450 U.S. 662, 
682 (1981) (Brennan, J. concurring in result).45

CONCLUSION

The majority opinion in the court below is at odds 
with the clear meaning of the Court’s milestone opinion 
in Shaw. Accordingly, this Court should either summarily 
reverse the judgment of the court below, or should note 
probable jurisdiction of this appeal.

Respectfully submitted.

Robinson O. Everett 
Attorney of Record 

for Appellants
301 W. Main Street, Ste. 300 
Durham, North Carolina 27701 
Tel. (919) 682-5691

Clifford Dougherty 
2000 N. 14th St. 
Suite 100 
Arlington, VA 
22201
(703) 536-7119)

45 In their zeal to sustain the redistricting plan by finding a 
benign legislative intent,, the majority below made numerous findings 
which have no evidence for support or are contrary to the 
overwhelming weight of the evidence.



A-l

APPENDIX

CONSTITUTIONAL PROVISIONS 
AND STATUTES INVOLVED

(a) Section 1 of the Fourteenth Amendment to the 
Constitution of the United States, which provides in 
pertinent part:

No state shall make or enforce any law which shall 
abridge the privileges or immunities of citizens of 
the United States; nor shall any State deprive any 
person of life, liberty or property, without due 
process of law; nor deny to any person within its 
jurisdiction the equal protection of the laws;

(b) the Fifteenth Amendment to the constitution of the 
United States, which provides in pertinent part:

The right of citizens of the United States to vote 
shall not be denied or abridged by the United 
States or by any state on account of race, color, or 
previous condition of servitude.

(c) Section 2 of the Voting Rights Act, 42 U.S.C. § 1973 
which provides:

(a) No voting qualification or prerequisite to 
voting or standard, practice, or procedure shall be 
imposed or applied by a state or political 
subdivision in a manner which results in a denial 
or abridgement of the right to vote on account of 
race or color, or in contravention of the



A-2

guarantees set forth in section 4 (f) (2), as 
provided in subsection (b)

(b) A violation of subsection (a) is established if, 
based on the totality of circumstances it is shown 
that the political processes leading to nomination 
or election in the state or political subdivision are 
not equally open to participation by members of 
a class of citizens protected by subsection (a), and 
that its members have less opportunity than other 
members of the electorate to participate in the 
political process and to elect representatives of 
their choice. The extent to which members of a 
protected class have been elected to office in the 
state or political subdivision is one circumstance 
which may be considered: Provided, That nothing 
in this section establishes a right to have members 
of a protected class elected in numbers equal to 
their proportion in the population.

(d) Section 5 of the Voting Rights Act, 42 U. S.C. §
1973c which provides:

Whenever a State or political subdivision with 
respect to which the prohibitions set forth in 
section 1973(a) of this title based upon 
determinations made under the first sentence of 
section 1973b(b) of this title are in effect shall 
enact or seek to administer any voting 
qualification or prerequisite to voting, or standard, 
practice, or procedure with respect to voting 
different from that in force or effect on November 
1, 1964, or whenever a State or political 
subdivision with respect to which the prohibitions



A-3

set forth in section 1973b(a) of this title based 
upon determinations made under the second 
sentence of section 1973b(b) of this title are in 
effect shall enact or seek to administer any voting 
qualification or prerequisite to voting, or standard, 
practice, or procedure with respect to voting 
different from that in force or effect on November 
1, 1968, or whenever a State or political 
subdivision with respect to which the prohibitions 
set forth in section 1973b(a) of this title based 
upon determinations made under the third 
sentence of section 1973b(b) of this title are in 
effect shall enact or seek to administer any voting 
qualification or prerequisite to voting, or standard, 
practice, or procedure with respect to voting 
different from that in force or effect on November 
1, 1972, such State or subdivision may institute an 
action in the United States District Court for the 
District of Columbia for a declaratory judgment 
that such qualification, prerequisite, standard, 
practice, or procedure does not have the purpose 
and will not have the effect of denying or 
abridging the right to vote on account of race of 
color, or in contravention of the guarantees set 
forth in section 1973b(f)(2) of this title, and unless 
and until the court enters such judgment no 
person shall be denied the right to vote for failure 
to comply with such qualification, prerequisite, 
standard, practice, or procedure; Provided, That 
such qualifications, prerequisite, standard, 
practice, or procedure may be enforced without 
such proceeding if the qualification, prerequisite, 
standard, practice, or procedure has been 
submitted by the chief legal officer or other



A-4

appropriate official of such State or subdivision to 
the Attorney General and the Attorney General 
has not interposed an objection within sixty days 
after such submission, or upon good cause shown, 
to facilitate an expedited approval within sixty 
days after such submission, the Attorney General 
has affirmatively indicated that such objection will 
not be made. Neither an affirmative indication by 
the Attorney General that no objection will be 
made, nor the Attorney General’s failure to 
object, nor a declaratory judgment entered under 
this section shall bar a subsequent action to enjoin 
enforcement of such qualification, prerequisite, 
standard, practice, or procedure. In the event the 
Attorney General affirmatively indicates that no 
objection will be made within the sixty-day period 
following receipt of a submission, the Attorney 
General may reserve the right to reexamine the 
submission if additional information comes to his 
attention during the remainder of the sixty-day 
period which would otherwise require objection in 
accordance with this section. Any action under 
this section shall be heard and determined by a 
court of three judges in accordance with the 
provisions of section 2284 of title 28 and any 
appeal shall lie to the Supreme Court.