Wallace v. Commonwealth of Virginia Brief in Opposition to Petition for Writ of Certiorari

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No. 97-893 
  

In the 

Supreme Court of the United States 
October Term, 1997 

  

  

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

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

Appellants, 

V. 

MARTIN CROMARTIE, et al., 

Appellees. 
  

On Appeal from the United States District Court 

Eastern District of North Carolina 
  

JURISDICTIONAL STATEMENT 

  

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 

North Carolina Department of Justice 

Post Office Box 629 

Raleigh, North Carolina 27602-0629 

Telephone: (919) 716-6900 

July 6, 1998 *Counsel of Record 
  

 



   ¥ 
f 

QUESTIONS PRESENTED 

1. 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 predominance of 

racial motives in the district’s design, when it is directly 

contradicted by the affidavits of the legislators who drew the 

district? 

2. Does a final judgment from a court of competent jurisdiction, 

which finds a state’s proposed congressional redistricting 

plan does not violate the constitutional rights of the named 

plaintiffs and authorizes the state to proceed with elections 

under it, preclude a later constitutional challenge to the same 

plan in a separate action brought by those plaintiffs and their 

privies? 

3. Is a state congressional district subject to strict scrutiny under 

the Equal Protection Clause simply because it is slightly 

irregular in shape and contains a higher concentration of 

minority voters than its neighbors, when it is not a majority- 

minority district, it complies with all of the race neutral 

districting criteria the state purported to be following in 

designing the plan, and there is no direct evidence that race 

was the predominant factor in its design? 

 



    

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iii 

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 YOUNGBLOOQOD in their capacity 

as the North Carolina State Board of Elections, are appellants in this 

case and were 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. 

 



    
1v 

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TABLE OF CONTENTS 

QUESTIONS PRESENTED... 5. oitsainy dahe ts vassiviinins i 

LISTOF PARTIES mo i. coos sis pidgin s 4's 24a ii 

TABLEOF AUTHORITIES ......... 0... si vii 

OPINIONS BELOW .. ovo vi cnissninanan ns sn sin 1 

JURISDICTHON citi cdi bens vi ts Paro aays bal 2 

CONSTITUTIONAL AND STATUTORY 

PROVISIONS INVOLVED .....i i... caniinainns 2 

STATEMENTOFTHE CASE ........ 00 a0. caidas 2 

A. THE 1997 REDISTRICTINGPROCESS. ........cr0iiu 2 

B.. THETI9TPLAN. oo. hs viviviniscs sas sails o vivian yon 3 

C. LEGAL CHALLENGES TO THE 1997 PLAN. ............ 6 

1. The Remedial Proceedings in Shaw. ............ 6 

2. The Parallel Cromartie Litigation .............. 8 

D. THE THREE-JUDGE DISTRICT COURT’S OPINION . ...... 9 

E. THEIOOSINTERIMPLAN. .. ...... ioscan ninninns 11 

 



  

vi 

ARGUMENT . ode. oii oid Anis i Pe ss 12 

1. SUMMARY JUDGMENT ISSUE...............%. 12 

NH: PRECLUSIONISSUE. .... cin. vaenise eave nns 16 

Hi. PREDOMINANCE ISSUE. “.. viv vivic evs vinvies sinks 20 

CONCLUSION... ...... 000 fied unails widein does 30 

   



Vii 

TABLE OF AUTHORITIES 

CASES 

Ahng v. Allsteel, Inc., 96 F.3d 1033 (7th Cir. 1996) ......... 17 

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

(1986) ........ooiviiiiiiiiii 13,14,15,16 

Bushy. Vera, S17 U.8.952(1996) ........ ven. vy passim 

Celotex Corp. v. Catrent, 477 U.8. 317(1986) ............. 13 

Chase Manhattan Bank, N.A. v. Celotex Corp., 

S6F.3d343QdCir. 1995)... 0. ci ae 17 

Cromwell v. County of Sac, 94 U.S. 351 (1876) ............ 18 

Edwards v. Aguillard, 482 U.S. 578 (1987) ............ 14,16 

Federated Dep't Stores, Inc. v. Moitie, 

452 U.S. 304 (F081). Tv. oi. Je sincnr cnn vena 18,19 

Gaffney v. Cummings, 412 U.S. 735(1973) ............... v4 

Gonzalez v. Banco Cent. Corp., 27 F.3d 751 
CIstCI. JO0Y ov oh as a ae a 17 

Hlinoisy. Krull, 480 U.S. 340 (1987) ......ccocuvi inne vns 12 

Jaffree v. Wallace, 837 F.2d 1461 (11th Cir. 1988) ......... 17 

Johnson v. Mortham, 915 F. Supp. 1529 (1995) ........... 15 

Karcher v. Daggett, 462 U.S. 725(1983) ........ huevos 22 

Lawyer v. Justice, 117 S. Ct. 2186 (1997) ...... 21,24,25,27,28  



  

viii 

McDonald v. Board of Election Commr’s of Chicago, 

3940S. 802¢1089) ....... a. A a Aaa 12 

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

Mueller v. Allen, 463. U.S. 3881983) ....... cco vunnnnn 12 

Nordhorn v. Ladish Co., 9 F.3d 1402 (9th Cir. 1993) ....... 17 

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ...... 14,28 

Quilter v. Voinovich, 981 F. Supp. 1032 

(N.D. Ohio 1997), affd, 118 S. Ct. 1358 

CTOOBY: oie 0 Pte carom wun v0 a 24,25,26,27,28 

Reynolds. Sims, 377U.8.533 (1964) .............. 5+. 22 

Rostker v. Goldberg, 453 U.S.57(1981) ..........c0nuu. 12 

Royal Ins. Co. of Am. v. Quinn-L Capital Corp., 

960.F.2d 1286 (5th Cir, 1992)%. . ou ve viii 17 

Shaw v. Hunt, 517 U.S. 899(1996) .............. 2,15,21,26 

Shaw v. Reno, 509 U.S. 630 (1993) ......... 3,15,20,24,25,28 

Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089 
ACI, 1995) he i Ted wr aos Buns eh is 14 

United States v. Hays, S15 U.S. 737(1995) .............. 4 ! 

Voinovich v. Quilter, 507 U.S. 146 (1993) ................ 25 

Wise v. Lipscomb, 437 U.8.535(1978) ........ 00.004, 25 

   



1X 

STATUTES AND OTHER AUTHORITIES 

BUS. C BI28 tii rai at aE A NO 

BUS.C. 82284)... oh oat em 19 

1998 N.C. Sess. Laws, ch. 2.8 1.1 <a, coca coi aiia 11 

18 JAMES WM. MOORE, ET AL., MOORE’S FEDERAL 

PRACTICE § 131.40[3][e][I][B] (3d ed. 1997) ...... .. 19 

18 C. WRIGHT, ET AL., FEDERAL PRACTICE AND 

PROCEDURE 84457 (1981) «vcs... vat ln 19 

 



    

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No. 97-893 

  

In the 

S upreme Court of the United States 
October Term, 1997 

  

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

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

Appellants, 

V. 

MARTIN CROMARTIE, et al., 

Appellees. 

  

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

JURISDICTIONAL STATEMENT 
  

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 held that the congressional redistricting plan enacted 

by the North Carolina General Assembly on March 31, 1997, was 

unconstitutional and permanently enjoined appellants 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 in the Appendix to this 

jurisdictional statement at 1a. 

 



  

2 

JURISDICTION 

The district court’s judgment was entered on April 6, 1998. On 

April 8, 1998, appellants filed an amended notice of appeal to this 

Court. The jurisdiction of this Court is invoked under 28 U.S.C. § 

1253. 

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED 

This appeal involves the Equal Protection Clause of the 

Fourteenth Amendment and Rule 56 of the Federal Rules of Civil 

Procedure, Summary Judgment. See App. 169a & 171a-173a. 

STATEMENT OF THE CASE 

A. THE 1997 REDISTRICTING PROCESS. 

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

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, and the legislature 

established Senate and House redistricting committees to carry out 

this task. 

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 would have to 

maintain the existing partisan balance in the State’s congressional 

delegation (a six-six split between Democrats and Republicans). 

Toward that end, the committees sought a plan that would preserve 

the partisan cores of the existing districts and avoid pitting 

incumbents against each other, to the extent consistent with the goal 

of curing the constitutional defects in the old plan. To craft 

   



“Democratic” and “Republican” districts, the committees used the 

results from a series of elections between 1988 and 1996. 

In designing the plan, the committees of course sought to comply 

with the requirements of the Voting Rights Act, as well as the 

constitutional requirement of population equality. Acutely conscious 

of their responsibilities under Shaw v. Reno, 509 U.S. 630 (1993) 

(“Shaw I’), and its progeny, however, they sought a plan in which 

racial considerations did not predominate over traditional race-neutral 

districting criteria. Toward this end, they decided to emphasize the 

following traditional race-neutral districting principles in designing 

the plan: (1) avoid dividing precincts; (2) avoid dividing counties 

when reasonably possible; (3) eliminate “cross-overs,” “double cross- 

overs,” and other artificial means of maintaining contiguity; (4) group 

together citizens with similar needs and interests; and (5) ensure ease 

of communication between voters and their representatives. The 

committees did not select geographic compactness as a factor that 

should receive independent emphasis 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 is a bipartisan one, 

endorsed by the leadership of both parties in both houses. 

B. THE 1997 PLAN. 

The 1997 plan creates six “Democratic” districts and six 

“Republican” districts. The new districts are designed to preserve the 

partisan cores of their 1992 predecessors, yet their lines are 

significantly different: they reassign more than 25% of the State’s 

  

! In North Carolina, as in most of the southeastern states, 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.  



  

4 

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. 

The 1997 plan respects the traditional race-neutral districting 

criteria identified by the legislature: it divides only two of the State’s 

2,217 election precincts (and then only to accommodate peculiar local 

characteristics); it divides only 22 of the State’s 100 counties (none 

among more than two districts); all of its districts are contiguous, and 

it does not rely on artificial devices like cross-overs and double cross- 

overs to achieve that contiguity.? Though the legislature did not 

emphasize geographic compactness for its own sake in designing the 

1997 plan, its districts are significantly more geographically compact, 

judged by standard mathematical measures of geographic 

compactness, than their predecessors in the 1992 plan. 

The 1997 plan is racially fair, but race for its own sake was not 

the predominant factor in its design or the design of any district 

within it. Indeed, 12 of the 17 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. 

District 12 is one of the six “Democratic” districts established by 

the 1997 plan. Seventy-five percent of the district’s registered voters 

are Democrats, and at least 62% of them voted for the Democratic 

candidate in the 1988 Court of Appeals election, the 1988 Lieutenant 

Governor election, and the 1990 United States Senate election. 

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, 

  

2 In contrast, the 1992 plan this Court invalidated in Shaw II divided 80 precincts; 

divided 44 of the State’s 100 counties (seven of them among three different 

districts); and achieved contiguity only through artificial devices. 

   



5 

and 46% of its registered voter population is African-American.’ 

While it does rely on the strong demonstrated support of African- 

American voters for Democratic candidates to cement its status as one 

of the six Democratic districts, partisan election data, not race, was 

the predominant basis for assigning those voters to the district. 

District 12 respects the traditional race-neutral redistricting 

criteria identified by the legislature. It 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.* 

It creates a community of voters defined by shared interests other than 

race, joining together citizens with similar needs and interests in the 

urban and industrialized areas around the interstate highways that 

connect Charlotte and the Piedmont Urban Triad. 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 representative. District 

12 is significantly more geographically compact than its 1992 

predecessor. 

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; it divides only 10 counties; and it achieves 

contiguity without relying on artificial devices like cross-overs and 

  

’ 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. 

* In contrast, District 12 in the 1992 plan divided 48 precincts; included parts of 

ten counties; and achieved contiguity only through artificial devices.  



  

6 

double cross-overs.’ It creates a community of voters defined by 

shared interests other than race, joining together citizens with similar 

needs and interests in the mostly rural and economically depressed 

counties in the State’s northern and central Coastal Plain. 

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

preclearance requirements of § 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. 

1. The Remedial Proceedings in Shaw. 

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 case -- Martin Cromartie and 

Thomas Chandler Muse -- participated as parties plaintiff in that 

remedial proceeding, represented by the same attorney who represents 

them in this case, Robinson Everett. 
In that proceeding, Cromartie, Muse, and their co-plaintiffs (“the 

Shaw plaintiffs”) were given an opportunity to litigate any 

constitutional challenges they might have to the 1997 plan, a plan 

which the State had enacted under the Shaw court’s injunction, as a 

  

5 In contrast, District 1 in the 1992 plan split 25 precincts and 20 counties, and 

achieved contiguity only through artificial devices. 

® The original plaintiffs in Shaw were five residents of District 12 as it existed 

under the 1992 plan. On remand from this Court’s decision in Shaw II, Cromartie 

and Muse sought and obtained the district court's leave to join them as plaintiffs, in 

order to assert a claim that District 1 in the 1992 plan was an unconstitutional racial 

gerrymander -- a claim which this Court had just held that the original Shaw 

plaintiffs lacked standing to assert. 

   



proposed remedy for the plan this Court had just declared 

unconstitutional.” They elected not to avail themselves of that 

opportunity. They did inform the Shaw court that they believed the 

1997 plan to be “unconstitutional” because Districts 1 and 12 -- the 

same districts they now challenge in this action -- had been “racially 

gerrymandered.” App. 183a-186a. At the same time, however, they 

asked the court not to decide their constitutional challenges to the 

proposed remedial plan. The reason they gave was somewhat curious: 

that the court lacked authority to entertain these claims, because none 

of them had standing to challenge the proposed plan under United 

States v. Hays, 515 U.S. 737 (1995).} For this reason, they asked the 

court “not [to] approve or otherwise rule on the validity of” the new 

plan, and to “dismiss this action without prejudice to the right of any 

person having standing to maintain a separate action attacking [its] 

constitutionality.” App. 186a. The state defendants actively opposed 

plaintiffs’ effort to reserve their constitutional challenges to the 1997 

plan for a new lawsuit. 

The three-judge court rejected the Shaw plaintiffs’ argument that 

it lacked jurisdiction to entertain their constitutional challenges to the 

State’s proposed remedial plan. App. 166a-168a. The court then went 

  

7 App. 181a-182a (directing the Shaw plaintiffs to advise the court “whether they 

intend[ed] to claim that the [1997] plan should not be approved by the court because 

it does not cure the constitutional defects in the former plan” and, if so, “to identify 

the basis for that claim”). 

* App. 186a (“Because of the lack of standing of the Plaintiffs, there appears to 

be no matter at issue before this Court with respect to the new redistricting plan”). 

The Shaw plaintiffs based this argument on the assertion that none of them resided 

in the redrawn District 12. App. 185a-186a. The argument was somewhat 

disingenuous, for at least two of their number -- Cromartie and Muse -- resided in 

the redrawn District 1 and thus had standing to assert a racial gerrymandering 

challenge to the 1997 plan, even under their own bizarre reading of the Hays 

decision.  



  

8 

on to rule 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.” App. 160a, 167a. On that basis, the 

court entered an order approving the plan and authorizing the state 

defendants to proceed with congressional elections under it. App. 

157a-158a. The Shaw plaintiffs took no appeal from that order. 

2. The Parallel Cromartie Litigation. 

Having forgone an opportunity to litigate their constitutional 

challenges to Districts 1 and 12 in the 1997 plan before the three- 

judge court in Shaw, Cromartie and Muse immediately 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, a lawsuit in which they 

were also being represented by Robinson Everett. In that amended 

complaint, Cromartie, Muse, and four persons who had not been 

named as plaintiffs in Shaw (“the Cromartie plaintiffs”) asserted 

racial gerrymandering challenges to Districts 1 and 12 in the 1997 

plan, the very plan the three-judge court in Shaw had just approved 

over their objection. 

On January 15, 1998, the Cromartie case was assigned to a three- 

judge panel, consisting of one judge who had served on the three- 

judge panel in Shaw -- Judge Voorhees, who had dissented from the 

panel’s decisions in Shaw I and Shaw II -- and two new judges. On 

January 30, 1998, 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 responded with a cross-motion for summary judgment. 

On March 31, 1998, before it had permitted either party to 

conduct any discovery, the three-judge court heard brief oral 

arguments on the pending motions for preliminary injunction and 

summary judgment. Three days later, the court, with Circuit Judge 

   



9 

Sam J. Ervin, 111, dissenting, entered an order granting the Cromartie 

plaintiffs’ motion for summary judgment, declaring District 12 in the 

1997 plan unconstitutional, and permanently enjoining the state 

defendants from conducting any elections under the 1997 plan.’ The 

court’s order did not explain the basis for its decision, stating only 

that “[mJ]emoranda with reference to [the] order will be issued as soon 

as possible.” App. 45a-46a. 

The state defendants immediately noticed an appeal to this Court. 

Since the elections process under the 1997 plan was already in {ull 

swing, they asked the district court to stay its April 3rd order pending 

disposition of that appeal. The district court declined to do so. The 

state defendants then applied 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, with Justices Stevens, 

Ginsburg, and Breyer dissenting. When this Court acted on that stay 

application, the district court had yet to issue an opinion explaining 

the order and permanent injunction in question. 

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 of April 3, 1998. At the outset, the 

court ruled that “the September 12, 1997, decision of the Shaw three- 

judge panel was not preclusive of the instant cause of action, as the 

panel was not presented with a continuing challenge to the 

redistricting plan.” App. 3a-4a. The court then held that the 

Cromartie plaintiffs were entitled to summary judgment on their 

challenge to District 12, because the “uncontroverted material facts” 

  

9 

The order made no reference to District 1, though the Cromartie plaintiffs also 

had moved for summary judgment on their claim that it was an unconstitutional 

racial gerrymander. Not until the memorandum opinion was filed on April 14, 1998, 

did the court explain that it was denying summary judgment as to District 1. App. 

22a-23a, 53a.  



  

10 

established that the legislature had “utilized race as the predominant 

factor in drawing the District.” App. 21a-22a. Unlike the lower courts 

whose “predominance” findings this Court upheld in Miller, Bush, 

and Shaw 11, the court did not base this finding on any direct evidence 

of legislative motivation; instead, it relied wholly on an inference it 

drew from the district’s shape and racial demographics. The court 

reasoned that District 12 was “unusually shaped,” that it was “still the 

most geographically scattered” of the State’s congressional districts, 

that its dispersion and perimeter compactness measures were lower 

than the mean for the 12 districts in the plan, that it “include[s] nearly 

all of the precincts with African-American population 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 “facts,” which it characterized as 

“uncontroverted,” established -- as a matter of law -- that the 

legislature had “disregarded traditional districting criteria” and 

“utilized race as the predominant factor” in designing District 12. 

App. 19a-22a. 

Finally, the court held that the Cromartie plaintiffs were not 

entitled to summary judgment on their challenge to District 1, the 

only majority-minority district in the 1997 plan. The court did not 

explain the basis for this holding, except to say that the Cromartie 

plaintiffs had “failed to establish that there are no contested material 

issues of fact that would entitle [them] to judgment as a matter of law 

as to District 1.” App. 22a. In denying the state defendants’ cross- 

motion for summary judgment on the same claim, however, the court 

stated that the “contested material issue of fact” concerned “the use 

of race as the predominant factor in the districting of District 1.” App. 

23a. 

Judge Ervin dissented. App. 25a. In his view, the majority’s 

conclusion that the evidence in the summary judgment record was 

sufficient to establish -- as a matter of law -- that race had been the 

predominant factor in the design of District 12, was strikingly 

   



11 

inconsistent with its conclusion that the same evidence was not 

sufficient to establish that race had been the predominant factor in the 

design of District 1, given that the two districts were drawn by the 

same legislators, at the same time, as part of the same state-wide 

redistricting process. The inconsistency was even more striking, he 

noted, “when one considers that the legislature placed more African- 

Americans in District 1 . . . than in District 12.” App. 38a. 

E. THE 1998 INTERIM PLAN. 

On April 21, 1998, the court entered an order allowing the 

General Assembly 30 days to redraw the State’s congressional 

redistricting plan to correct the defects it had found in the 1997 plan. 

App. 55a. On May 21, 1998, the General Assembly by bipartisan 

vote enacted another congressional redistricting plan, 1998 Session 

Laws, Chapter 2 (“the 1998 plan”), and submitted it to the court for 

approval. The 1998 plan is effective for the 1998 and 2000 elections 

unless this Court reverses the district court decision holding the 1997 

plan unconstitutional." The Department of Justice precleared the 

1998 plan on June 8, 1998. 

On June 22, 1998, the district court entered an order tentatively 

approving the 1998 plan and authorizing the State to proceed with the 

1998 elections under it. App. 175a-180a. The court explained that 

the plan’s revisions to District 12 “successfully addressed” the 

concerns the court had identified in its April 14, 1998 opinion, and 

that it appeared, “from the record now before [the court],” that race 

had not been the predominant factor in the design of that revised 

district. The court noted that it was not ruling on the constitutionality 

of revised District 1, and it directed the parties to prepare for trial on 

  

1 See 1998 N.C. Sess. Laws, ch. 2, § 1.1 (“The plan adopted by this act is effective 

for the elections for the years 1998 and 2000 unless the United States Supreme 

Court reverses the decision holding unconstitutional G.S. 163-201(a) as it existed 

prior to the enactment of this act.”).  



  

12 

that issue. It also “reserve[d] jurisdiction” to reconsider its ruling on 

the constitutionality of redrawn District 12 “should new evidence 

emerge.” App. 177a-179a. 

ARGUMENT 

I. SUMMARY JUDGMENT ISSUE. 

The district court’s application of the Rule 56 summary judgment 

standard in this context presents substantial questions that warrant 

either plenary consideration or summary reversal. 

The threshold inquiry for deciding whether a district is subject to 

strict scrutiny under Shaw, turning as it does on the actual motivations 

of the state legislators who designed and enacted the plan, is 

peculiarly inappropriate for resolution on summary judgment. This 

Court has repeatedly affirmed its “reluctance to attribute 

unconstitutional motives to the states.” Mueller v. Allen, 463 U.S. 

388, 394 (1983). 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 constitutional manner,” 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.” 

Rostker v. Goldberg, 453 U.S. 57, 64 (1981) (internal quotation 

omitted). In Miller v. Johnson, 515 U.S. 900 (1995), this Court made 

clear that these cautionary principles are fully applicable in Shaw 

cases. See 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.”) (citations omitted). Indeed, they have even greater force 

in Shaw cases, given the sensitive and highly political nature of the 

redistricting process and the “serious intrusion” on state sovereignty 

that federal court review of state districting legislation represents. 515 

   



13 

U.S. at 916 (admonishing lower courts to exercise “extraordinary 

caution” in adjudicating Shaw claims) (emphasis added). 

Ignoring this Court’s directives, and oblivious to the fact that the 

invalidation of a sovereign state’s duly-enacted electoral districting 

plan is not a casual matter, the court below resolved the contested 

issue of racial motivation -- and with it, the issue of the plan’s validity 

-- on summary judgment. On the basis of a brief hearing, at which it 

heard no live evidence but merely argument from counsel, it 

concluded that plaintiffs had established -- as a matter of law -- that 

race had been the predominant factor in the construction of District 

12. App. 21a-22a. In so doing, it committed clear and manifest error. 

The district court’s decision is flatly inconsistent with this Court’s 

decision in Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). 

There, this Court made clear that a motion for summary judgment 

must be resolved by reference to the evidentiary burdens that would 

apply at trial. Id. at 250-54. Where, as here, the party who seeks 

summary judgment will have the burden of persuasion at trial, he can 

obtain summary judgment only by showing that the evidence in the 

summary judgment record is such that no reasonable factfinder 

hearing that evidence at trial could possibly fail to find for him. /d. at 

252-55. In other words, he must demonstrate that the evidence, 

viewed in the light most favorable to his opponent, is “so one-sided” 

that he would be entitled to judgment as a matter of law at trial. /d. at 

249-52. 

In this case, plaintiffs had the burden of persuasion at trial on the 

predominance issue. Miller, 515 U.S. at 916. The district court utterly 

ignored this critical fact in concluding that they were entitled to 

summary judgment on their claim challenging the constitutionality of 

District 12. Indeed, the court appeared to be analyzing their motion 

for summary judgment under the standard that applies to parties who 

will not have the burden of persuasion at trial. App. 21a (citing 

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).  



  

14 

Had the district court applied the standard this Court’s precedents 

direct it to apply, it could not have justified the conclusion that 

plaintiffs were entitled to summary judgment on their claim 

challenging the constitutionality of District 12. To obtain summary 

judgment on that claim under Liberty Lobby, plaintiffs were required 

to show that no reasonable finder of fact, viewing the evidence in the 

summary judgment record in the light most favorable to the state 

defendants, could possibly find that race had nor been the 

predominant factor in its design. 477 U.S. at 252-55. The only 

evidence in the record tending to show that race had been the 

predominant motivation in the construction of District 12 was an 

inference the plaintiffs asked the court to draw from their evidence of 

the district’s shape and racial demographics.'' There was absolutely 

no direct evidence? of such an improper motivation before the district 

court: no concessions to that effect from the state defendants, and no 

evidence of statements to that effect in the legislation itself, the 

committee hearings, the committee reports, the floor debates, the 

State’s § 5 submissions, or the post-enactment statements of those 

who participated in the drafting or enactment of the plan. Compare 

  

''' 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 demographics 

to opine that race was the predominant factor used by the State to draw the 

boundaries of the congressional districts. Such 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 (1987). 

12 While the distinction between “direct” and “circumstantial” evidence is “often 

subtle and difficult,” Price Waterhouse v. Hopkins, 490 U.S. 228, 291 (1989) 

(Kennedy, J., dissenting), most courts define “direct evidence” of motivation as 

“conduct or statements by persons involved in the decisionmaking process that may 

be viewed as directly reflecting the alleged [motivation).” Starceski v. Westinghouse 

Elec. Corp., 54 F.3d 1089, 1096 (3d Cir. 1995) 

   



15 

Miller, 515 U.S. at 918; Bush v. Vera, 517 U.S. 952, 959-62, 969-71 

(1996) (plur. op.); Shaw II, 517 U.S. at 906. This evidence was 

legally insufficient, even if uncontradicted, to permit a reasonable 

finder of fact to conclude that plaintiffs had discharged their burden 

of persuasion on the predominance issue. A court must “look further 

than a map” to conclude that race was a state legislature’s 

predominant consideration in drawing district lines as a matter of law. 

Johnson v. Mortham, 915 F. Supp. 1529, 1565 (1995) (Hatchett, :., 

dissenting)." 
By contrast, the summary judgment record contained substantial 

direct evidence that race had not been the predominant factor in the 

design of District 12. This evidence consisted of affidavits from the 

legislators who headed the legislative committees that drew the 1997 

plan and shepherded it through the General Assembly. See App. 69a- 

84a. These legislators testified under oath that they and their 

colleagues were well aware, when they designed and passed the 1997 

plan, of the constitutional limitations imposed by this Court’s 

decisions in Shaw I and its progeny, and that they took pains to ensure 

that the plan did not run afoul of those limitations. They also testified 

under oath that the boundaries of District 12 in the plan had been 

motivated predominantly by partisan political concerns and other 

legitimate race-neutral districting considerations, rather than by racial 

considerations. 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 nonmovant is to be believed, and 

all justifiable inferences are to be drawn in his favor.”). The district 

court did precisely the opposite: it assumed that these state legislators 

had lied under oath about the factors that motivated them in drawing 

  

'» While the combination of a map and racial demographics may, under certain 

extraordinary circumstances, be sufficient to state a claim that race was the 

predominant factor in a district’s design, see Shaw I, there is a vast difference 

between stating a claim and proving it.  



  

16 

the lines of District 12. That assumption was one this Court’s 

precedents simply did not permit it to make at this stage of the 

litigation. See id.; Miller, 515 U.S. at 915-16. 

The district court’s application of the Rule 56 standard was so 

irregular that summary reversal is warranted, even if this Court 

concludes that the case does not present issues warranting plenary 

consideration. “Striking down a law approved by the democratically 

elected representatives of the people is no minor matter,” and this 

Court’s precedents do not permit it do be done “on the gallop.” 

Edwards v. Aguillard, 482 U.S. 578, 626, 611 (1987) (Scalia, J., 

dissenting). 

II. PRECLUSION ISSUE. 

This case also raises important issues concerning the effect of a 

final judgment from a court of competent jurisdiction holding a state’s 

proposed redistricting plan constitutional on the ability of the parties 

to that judgment and their privies to challenge the same plan again in 

a later lawsuit before a different court. 

Two of the plaintiffs herein -- Cromartie and Muse -- participated 

as parties plaintiff in the remedial proceedings in Shaw. In those 

proceedings, the court offered them a full and fair opportunity to 

litigate any constitutional challenges they might have to the 1997 

plan, which the State had proposed as a remedy for the constitutional 

defects found in the earlier plan. They elected not to avail themselves 

of that opportunity, and the Shaw court entered a final judgment 

finding the plan constitutional and authorizing the State to proceed 

with elections under it. Under elementary principles of claim 

preclusion, that final judgment extinguished any and all claims 

Cromartie and Muse had with respect to the validity of the 1997 plan, 

including the claim they now assert in this action, which challenges 

the plan’s District 1 as a racial gerrymander. That Cromartie and 

Muse elected not to assert that particular claim in Shaw will not save 

it from preclusion here; indeed, the very purpose of the doctrine of 

   



17 

claim preclusion is to prevent plaintiffs from engaging in this sort of 

strategic claim-splitting. 

The final judgment entered in Shaw also bars the claim plaintiffs 

Everett, Froelich, Linville, and Hardaway assert in this action, which 

challenges the 1997 plan’s District 12 as a racial gerrymander. 

Though these individuals were not formally named as parties in Shaw, 

they are bound by the final judgment entered in that case because 

their interests were so closely aligned with those of the Shaw 

plaintiffs as to make the Shaw plaintiffs their “virtual representatives” 

in that earlier action." 
Ignoring fundamental principles of claim preclusion, the district 

court held that the final judgment entered in Shaw did not bar the 

claims appellants assert here. App. 3a-4a. The court based this 

conclusion on its understanding that the Shaw court “was not 

presented with a continuing challenge to the redistricting plan.” App. 

4a. To the extent the court meant that the Shaw court did not resolve 

  

“A party may be bound by a prior judgment, even though he was not formally 

named as a party in that prior action, when his interests were closely aligned with 

those of a party to the prior action and there are other indicia that the party was 

serving as the non-party’s “virtual representative” in the prior action. See Ahng v. 

Allisteel, Inc., 96 F.3d 1033, 1037 (7th Cir. 1996); Chase Manhattan Bank, N.A. v. 

Celotex Corp., 56 F.3d 343, 345-46 (2d Cir. 1995); Gonzalez v. Banco Cent. Corp., 

27 F.3d 751, 761 (1st Cir. 1994); Nordhorn v. Ladish Co., 9 F.3d 1402, 1405 (9th 

Cir. 1993); Royal Ins. Co. of Am. v. Quinn-L Capital Corp., 960 F.2d 1286, 1297 

(5th Cir. 1992); Jaffree v. Wallace, 837 F.2d 1461, 1467-68 (11th Cir. 1988). The 

relationship between the Shaw plaintiffs and the four plaintiffs who challenge 

District 12 in this action has many of the classic indicia of “virtual representation’: 

close relationships between the parties and the nonparties, shared counsel, 

simultaneous litigation seeking the same basic relief under the same basic legal 

theory, and apparent tactical maneuvering to avoid preclusion. See Jaffree, 837 F.2d 

at 1467.  



  

18 

the issue of the 1997 plan’s constitutionality, it was mistaken." To the 

extent the court meant only that the Shaw plaintiffs chose to assert no 

challenge to the 1997 plan in those earlier proceedings, it missed the 

central point of the doctrine of claim preclusion, which bars claims 

that were or could have been brought in the prior proceedings. The 

district court’s holding on the preclusion issue presents substantial 

questions warranting either plenary consideration or summary 

reversal. 

The district court’s decision conflicts directly with this Court’s 

cases defining the preclusive effect of a prior federal judgment. As 

those decisions make plain, when a federal court enters a final 

judgment, that judgment stands as an “absolute bar” to a subsequent 

action concerning the same “claim or demand” between the same 

parties and those in privity with them, “not only as to every matter 

which was offered and received to sustain or defeat the claim or 

demand, but [also] as to any other admissible matter which might 

have been offered for that purpose.” Cromwell v. County of Sac, 94 

U.S. 351, 352 (1876). 
The district court’s decision also conflicts with Federated Dep't 

Stores, Inc. v. Moitie, 452 U.S. 394 (1981). In that case, this Court 

  

15 The Shaw court did not expressly reserve the claims in question for resolution 

in a later proceeding. Though the Shaw plaintiffs asked it to “dismiss the action 

without prejudice to the right of any person having standing to bring a new action 

attacking the constitutionality of the [1997] plan,” App. 1864, the court declined to 

do so. While the court stated that its approval of the plan was necessarily “limited 

by the dimensions of this civil action as that is defined by the parties and the claims 

properly before us,” and that it therefore did not “run beyond the plan’s remedial 

adequacy with respect to those parties,” it specifically held the plan constitutional 

“as to the plaintiffs . . . in this case.” App. 167a, 160a. The only claim the court 

dismissed “without prejudice” was “the claim added by amendment to the complaint 

in this action on July 12, 1996,” in which the Shaw plaintiffs “challenged on ‘racial 

gerrymandering’ grounds the creation of former congressional District 1.” App. 

158a. (emphasis added.) As the court recognized, this claim was mooted by its 

approval of the 1997 plan. App. 165a, 168a. 

   



19 

made clear that a federal court may not refuse to apply the doctrine of 

claim preclusion simply because it believes the prior judgment to be 

wrong. Id. at 398. As this Court explained, the doctrine of claim 

preclusion serves “vital public interests beyond any individual judge’s 

ad hoc determination of the equities in a particular case,” including 

the interest in bringing disputes to an end, in conserving scarce 

judicial resources, in protecting defendants from the expense and 

vexation of multiple duplicative lawsuits, and in encouraging relianc= 

on the court system by minimizing the possibility of inconsistent 

judgments. Id. at 401. The district court’s decision here -- a 

transparent attempt to correct a perceived error in an earlier judgment 

that the losing party failed to appeal -- flies in the face of this bedrock 

principle of our civil justice system." 
The policies behind the doctrine of claim preclusion are at their 

most compelling when the claims in question seek to interfere with a 

state’s electoral processes. The strong public interest in the orderly 

administration of the nation’s electoral machinery requires efficient 

and decisive resolution of any disputes regarding these matters." In 

this case, the district court’s disregard of basic principles of claim 

preclusion has resulted in the entry of two dramatically inconsistent 

  

'® In addition, the district court’s decision conflicts, at least in principle, with the 

decisions of at least six federal circuit courts applying the “virtual representation” 

theory of privity. See cases cited supra note 14. This conflict is illustrative of the 

widespread confusion in the lower federal courts as to the proper scope of the 

“virtual representation” doctrine. See 18 JAMES WM. MOORE, ET AL., MOORE'S 

FEDERAL PRACTICE § 131.40[3][e][I][B] (3d ed. 1997) (collecting cases); 18 

C. WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE § 4457 (1981) (same). 

'7 Precisely for this reason, Congress has provided for a right of direct appeal to 

this Court from any order of a three-judge court granting or denying a request for 

injunctive relief in any civil action challenging the constitutionality of the 

apportionment of congressional districts or the apportionment of any statewide 

legislative body. See 28 U.S.C. § 1253; 28 U.S.C. § 2284(a).  



  

20 

judgments -- one ordering the State to go forward with its 

congressional elections under the 1997 plan and the other enjoining 

it from doing so -- which have left the State’s electoral process in 

disarray. It has significantly prolonged final resolution of the legal 

controversy over the constitutionality of North Carolina’s 

congressional districts, wasting judicial resources, diverting the state 

legislature from the business of governing, and causing the State’s 

taxpayers to incur significant additional expense. It is difficult to 

imagine a greater affront to the policies behind the doctrine of claim 

preclusion, to core principles of state sovereignty and federalism, and 

to the very integrity of the federal system of justice itself. 

The district court’s resolution of the preclusion issue is so flatly 

inconsistent with this Court’s precedents that summary reversal is 

warranted, even if this Court concludes that the case does not present 

issues warranting plenary consideration. 

III. PREDOMINANCE ISSUE. 

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

electoral districting plan could, in certain exceptional circumstances, 

be a “racial classification” that was subject to strict scrutiny under the 

equal protection clause. 509 U.S. at 642-44, 646-47, 649. Two years 

later, in Miller, this Court set forth the showing required to trigger 

strict scrutiny of such a districting plan: “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, a plaintiff must prove 

that the legislature “subordinated traditional race-neutral districting 

principles . . . to racial considerations,” so that race was “the 

predominant factor” in the design of the districts. Id. at 916; see id. at 

928-29 (O’Connor, J., concurring) (strict scrutiny applies only when 

“the State has relied on race in substantial disregard of customary and 

traditional [race-neutral] districting practices”). 

   



21 

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 “predominance” test. Id. at 916; see id. at 928-29 

(O’Connor, J., concurring) (stressing that the Miller standard is a 

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

gerrymandering” to strict scrutiny) 

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

that the legislature considered race as a factor in drawing district lines 

is not sufficient, without more, to trigger strict scrutiny. See 517 U.S. 

at 958 (plur. op.); id. at 993 (O’Connor, J., concurring); and id. at 

999-1003 (Thomas, J., joined by Scalia, J., concurring in judgment). 

Nor is proof that the legislature neglected traditional districting 

criteria sufficient to trigger strict scrutiny. See id. at 962 (plur. op.); 

id. at 993 (O’Connor, J., concurring); id. at 1000-001 (Thomas, J., 

Joined by Scalia, J., concurring in judgment). Instead, strict scrutiny 

applies only when the plaintiff establishes both that the State 

substantially neglected traditional districting criteria in drawing 

district lines, and that it did so predominantly because of racial 

considerations. See id. at 962-63 (plur. op.) and at 993-94 (O’ Connor, 

J., concurring) (emphasis added). Accord Shaw II, 517 U.S. at 906- 

07; Lawyer v. Justice, 117 S. Ct. 2186, 2194-95 (1997). 

In this case, the North Carolina legislature, exercising the State’s 

sovereign 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 actual communities of interest, preserving 

the partisan balance in the State’s congressional delegation, 

preserving the cores of prior districts, and avoiding contests between  



  

22 

incumbents. All of these criteria were ones that this Court had 

previously approved as legitimate districting criteria." The legislature 

did not, however, select geographic compactness as a criterion to 

receive independent emphasis in drawing the plan. The 1997 plan as 

drawn does not neglect any of the traditional race-neutral districting 

criteria the legislature set out to follow; to the contrary, it substantially 

complies with all of them. 
The district court nonetheless concluded that the legislature 

“disregarded traditional districting criteria” in designing District 12, 

because it failed to comply with two race-neutral districting principles 

that it never purported to be following -- specifically, the criteria of 

“geographical integrity” and “compactness.” App. 21a-22a. The court 

believed the legislature’s apparent disregard of these two districting 

principles in drawing District 12, together with evidence that the 

district “include[s] nearly all of the precincts with African-American 

population proportions of over forty percent which lie between 

Charlotte and Greensboro,” and that it “bypasse[s]” certain precincts 

with large numbers of registered Democrats, established that race, 

rather than partisan political preference, had been the predominant 

factor in the design of District 12. App. 19a-21a. This extreme 

misapplication of the threshold test for application of strict scrutiny 

in a case of such importance to the people of North Carolina warrants 

plenary review for at least four reasons. 
First, the district court’s reliance on District 12’s relative lack of 

geographic compactness and geographical integrity was based on a 

fundamental misunderstanding of the nature and purpose of the 

  

18 See Miller, 515 U.S. at 916 (contiguity, respect for political subdivisions, and 

respect for communities defined by shared interests other than race); Gaffney v. 

Cummings, 412 U.S. 735, 751-54 (1973) (preserving partisan balance); Karcher v. 

Daggett, 462 U.S. 725, 740 (1983) (preserving the cores of prior districts and 

avoiding contests between incumbents); Reynolds v. Sims, 377 U.S. 533, 580 (1964) 

(ensuring “access of citizens to their representatives”). 

   



23 

“disregard for traditional districting criteria” aspect of the Miller 

test.'” As this Court has explained repeatedly, a state’s deviation from 

traditional race-neutral districting criteria is important in this context 

only because it may, when coupled with evidence of racial 

demographics, serve as “circumstantial evidence” that “race for its 

own sake, and not other districting principles, was the legislature’s 

dominant and controlling rationale in drawing district lines.” Miller, 

515 U.S. at 913; see id. at 914 (“disclose[s] a racial design”); Bus/., 

517 U.S. at 964 (plur. op.) (“correlations between raci:l 

demographics and [irregular] district lines,” if not explained “in terms 

of non-racial motivations,” tend to show “that race predominated in 

the drawing of district lines”). The notion is that when a state casts 

aside the race-neutral criteria it would normally apply in districting to 

draw a majority-minority district, it is very likely to have done so for 

predominantly racial reasons. For this inquiry to serve its purpose, it 

must focus not on the degree to which the challenged district deviates 

from some set of race-neutral districting principles that a hypothetical 

state -- or a federal court -- might find appropriate in designing a plan, 

but rather on the precise set of race-neutral districting principles that 

the particular state would otherwise apply in designing its districts, 

  

' Indeed, this misunderstanding of the “traditional race-neutral districting criteria” 

to which Miller refers drove the district court to the otherwise inexplicable 

conclusion that plaintiffs had established -- as a matter of law -- that race was the 

predominant factor in the design of District 12, but that they had not established -- 

as a matter of law -- that it was the predominant factor in the design of District 1. 

App. 17a-22a. The evidence that racial considerations had played a significant role 

in the line-drawing process was much stronger with respect to District 1 than to 

District 12, for it was undisputed that District 1 is a majority-minority district 

enacted to avoid a violation of § 2 of the Voting Rights Act. The only conceivable 

explanation for the district court’s conclusion that District 12 was a racial 

gerrymander as a matter of law, but District 1 was not, was its perception that 

District 1 was not as “irregular” as District 12 and had better “comparative 

compactness indicators.” App. 13a-14a.  



  

24 

were it not pursuing a covert racial objective. See Quilter v. 

Voinovich, 981 F. Supp. 1032, 1045 n.10 (N.D. Ohio 1997), aff'd 

118 S. Ct. 1358 (1998) (characterizing the inquiry as “designed to 

identify situations in which states have neglected the criteria they 

would otherwise consider in pursuit of race-based objectives”). 

In this case, the district court evaluated District 12°s compliance 

with traditional race-neutral districting criteria by reference to two 

such criteria that the people of North Carolina have not required their 

legislature to observe in districting: “geographic compactness” and 

“geographical integrity.” In so doing, the district court apparently 

relied on this Court’s frequent references to compactness as a 

traditional race-neutral districting criteria. See, e.g., Shaw I, 509 U.S. 

at 647; Miller, 515 U.S. at 916; Bush, 517 U.S. at 959-66 (plur. op.). 

But this Court has never indicated that the race-neutral districting 

criteria it has mentioned in its opinions are anything but illustrations. 

See, e.g., Miller, 515 U.S. at 916 (describing “traditional race-neutral 

districting principles” as “including but not limited to compactness, 

contiguity, and respect for political subdivisions or communities 

defined by actual shared interests’) (emphasis added). Nor has this 

Court ever indicated that a state’s deviation from abstract numerical 

measures of compactness has any probative value whatsoever when 

the state in question does not have a stated goal of drawing compact 

districts.” 

  

2 Indeed, this Court’s recent decision in Lawyer suggests precisely the opposite. 

In Lawyer, the plaintiffs presented evidence that the challenged state legislative 

district encompassed more than one county, crossed a body of water, was irregular 

in shape, and lacked geographic compactness. 117 S. Ct. at 2195. The district court 

found this evidence insufficient to establish that traditional districting principles had 

been subordinated to race in the district’s design, because these were all “common 

characteristics of Florida legislative districts, being products of the State’s 

geography and the fact that 40 Senate districts are superimposed on 67 counties.” 

Id. (emphasis added). This Court upheld that finding, on the ground that the 

“unrefuted evidence show(s] that on each of these points District 21 is no different 

   



25 

The district court’s decision effectively requires all states with 

racially-mixed populations to comply with “objective” standards of 

geographic compactness in drawing their congressional and 

legislative districts. Such a requirement is flatly inconsistent with this 

Court’s repeated statements that geographic compactness is not a 

constitutionally-mandated districting principle. See Bush, 517 U.S. at 

962 (plur. op.); Shaw I, 509 U.S. at 647. It also conflicts directly with 

this Court’s long-standing recognition that the Constitution accords 

the states wide-ranging discretion to design their congressional and 

legislative districts as they see fit, so long as they remain within 

constitutional bounds. See Quilter, 507 U.S. 156; Wise v. Lipscomb, 

437 U.S. 535, 539 (1978). Surely this means that the states are 

entitled to decide which particular race-neutral districting criteria they 

will emphasize in drawing their districts, without worrying that strict 

scrutiny will apply if a federal judge disagrees with their choices.” 

Second, the district court’s decision conflicts directly with this 

Court’s decision in Bush. There, 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. 517 U.S. at 968 (plur. 

op.) (“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”); see id. at 1027-32 

(Stevens, J., joined by Ginsburg and Breyer, JJ., dissenting); id. at 

  

from what Florida's traditional districting principles could be expected to produce.” 

Id. (emphasis added). 

2! This is not to suggest, of course, that a state could avoid the strict scrutiny of 

Shaw and Miller simply by choosing to establish “minimal or vague criteria (or 

perhaps none at all),” so that “it could never be found to have neglected or 

subordinated those criteria to race.” Quilter, 981 F. Supp. at 1081 n.10. But that is 

not what happened here.  



  

26 

1060-61 (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. Instead, the undisputed 

evidence in the summary judgment record showed that the State used 

political characteristics themselves, not racial data, to draw the lines. 

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.” Id. at 968 (plur. op.); see id. at 1027-32 

(Stevens, J., joined by Ginsburg and Breyer, JJ., dissenting); id. at 

1060-61 (Souter, J., joined by Ginsburg and Breyer, JJ., dissenting). 

Third, the district court’s decision raises substantial, unresolved 

questions concerning the circumstances under which a plaintiff can 

satisfy the threshold test for strict scrutiny based solely on an 

inference drawn from a district’s shape and racial demographics. 

Miller held that a plaintiff can prove the legislature’s predominantly 

racial motive with either “circumstantial evidence of a district’s shape 

and demographics or more direct evidence going to legislative 

purpose.” 515 U.S. at 916. In all of its prior cases finding the 

threshold test for strict scrutiny met, however, this Court has relied 

heavily on substantial direct evidence of legislative motivation. See 

id. at 918 (relying on the State’s § 5 submissions, the testimony of the 

individual state officials who drew the plan, and the State’s formal 

concession that it had deliberately set out to create majority-minority 

districts in order to comply with the Department of Justice’s “black 

maximization” policy); Bush, 517 U.S. at 959-61, 969-71 (plur. op.) 

(same); id. at 1002 & n.2 (Thomas, J., concurring in the judgment) 

(same); Shaw II, 517 U.S. at 906 (same). As a result, this Court has 

never confronted the question of how much circumstantial evidence 

is enough to satisfy the Miller predominance standard, in the absence 

   



27 

of any direct evidence of racial motivation. See Miller, 515 U.S. at 

917 (specifically reserving this issue). 
The plaintiffs in this case, unlike those in Miller, Bush, and Shaw 

11, base their claim that race was the predominant factor in the design 

of Districts 12 solely on circumstantial evidence of shape and racial 

demographics. Yet their circumstantial evidence is decidedly less 

powerful than that presented by their counterparts in Miller, Bush, 

and Shaw II. First, and most fundamentally, the district they challenge 

is not a majority-minority district, as were the districts at issue in 

those cases. This Court’s recent decision in Lawyer, which rejected 

a claim that a challenged Florida state senate district was a racial 

gerrymander, makes clear that this is an important distinction. 117 S. 

Ct. at 2191, 2195 (emphasizing that the challenged district was not 

majority-black and noting that “similar racial composition of different 

political districts” is not “necessary to avoid an inference of racial 

gerrymandering in any one of them.”). In addition, the shape of the 

district challenged here, though somewhat irregular, does not reveal 

“substantial” disregard for traditional race-neutral districting 

principles.” Finally, the undisputed evidence here established that the 

racial data the legislature used in designing these districts was no 

more detailed than the other demographic data it used. Compare 

Bush, 517 U.S. at 962-67, 969-71, 975-76 (plur. op.) (finding 

  

22 In sharp contrast to former District 12, which this Court invalidated in Shaw II, 

current District 12 is contiguous, respects the integrity of political subdivisions to 

the extent reasonably possible, and creates a community of interest defined by 

criteria other than race. While it has relatively low dispersion and perimeter 

compactness measures, this is insufficient to support a finding that the legislature 

“substantially” disregarded traditional districting criteria in designing it, even if 

geographic compactness can be considered one of the State’s “traditional districting 

criteria.” See Quilter, 981 F. Supp. at 1048 (expressing “doubt” that a state’s neglect 

of one of its many traditional districting criteria “would be sufficient to show the 

kind of flagrant disregard that would indicate that traditional districting principles 

were subordinated to racial objectives”).  



  

28 

legislature’s use of racial data that was significantly more detailed 

than its data on other voter demographics strong circumstantial 

evidence that race had been its predominant consideration in 

designing the challenged districts). 

On this record, there is a substantial question whether plaintiffs’ 

evidence of shape and racial demographics is sufficient to support an 

inference that race was the predominant factor in the design of 

District 12. Indeed, the evidence of shape and demographics here 

closely resembles that offered by the plaintiffs in Lawyer, which this 

Court found insufficient to support an inference of racial 

gerrymandering. See 117 S. Ct. at 2195. In addition, the state 

defendants rebutted any such inference with substantial direct 

evidence that partisan political preference, and not race, had been the 

predominant factor in the district’s design. Under this Court’s 

decisions, that should have been sufficient to avoid strict scrutiny, in 

the absence of any direct evidence of racial motivation. See Shaw I, 

509 U.S. at 653, 658 (indicating that State can avoid strict scrutiny by 

“contradicting” the inference of racial motivation that arises from 

plaintiffs’ evidence of shape and racial demographics); Miller, 515 

U.S. at 916 (strict scrutiny does not apply where the state establishes 

that “race-neutral considerations are the basis for redistricting 

legislation, and are not subordinated to race”). 
Finally, the district court’s decision sets far too low a threshold 

for subjecting a state’s districting efforts to strict -- and potentially 

fatal -- constitutional review. Under its reasoning, a private plaintiff 

can trigger strict scrutiny of a state redistricting plan simply by 

  

2 In an analogous “mixed motives” situation -- the individual disparate treatment 

case under Title VII -- four members of this Court have endorsed a rule that would 

require plaintiff to produce “direct evidence” that the impermissible criterion was 

a substantial motivating factor in the challenged decision in order to prevail. Price 

Waterhouse v. Hopkins, 490 U.S. 228, 275-76 (1989) (O’Connor, J., concurring), 

290 (Kennedy, J., joined by Rehnquist, C.J. and Scalia, J., dissenting). 

   



29 

showing that its districts are somewhat irregular in shape and that 

some of them have heavier concentrations of minority voters than 

others. If strict scrutiny is this easily triggered, the states, particularly 

those subject to the preclearance requirements in § 5 of the Voting 

Rights Act, will find themselves in an impossible bind. If they take 

race into account in districting, in order to avoid violating the Voting 

Rights Act, they face private lawsuits under the Equal Protection 

Clause; but if they do not, they face both denial of preclearance under 

§ 5 of the Voting Right Act and private lawsuits under § 2. See Bush 

517 U.S. at 990-95 (O’Connor, J., concurring) (noting the tension 

between the Voting Rights Act, which requires the states to consider 

race in districting, and the Fourteenth Amendment, which requires 

courts “to look with suspicion on the[ir] excessive use of racial 

considerations”). Nearly every plan they draw will be subject to 

challenge on one ground or the other, nearly every plan will be the 

subject of protracted litigation in the federal courts, and the federal 

courts will become the principal architects of their congressional and 

legislative districting plans. This Court should not tolerate such an 

unprecedented intrusion by the federal judiciary into this “most vital” 

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

The district court’s extreme misapplication of the threshold test 

for strict scrutiny illustrates the need for this Court to provide 

additional guidance on its proper application in cases where there is 

no direct evidence of racial motivation, the district in question is not 

a majority-minority district, and it does not disregard the State’s stated 

race-neutral districting criteria. This situation will arise with some 

frequency in the next round of Shaw cases, particularly in states like 

North Carolina, which remain subject to a realistic threat of liability 

under § 2 of the Voting Rights Act if they do not pay close attention 

to racial fairness in districting. As Justice O’Connor recognized in 

Bush, these states -- and the lower courts -- are entitled to “more 

definite guidance as they toil with the twin demands of the Fourteenth  



  

30 

Amendment and the VRA.” 517 U.S. at 990 (O’Connor, J. 

concurring). 

CONCLUSION 

For the forgoing reasons, this Court should summarily reverse the 

April 6, 1998 judgment of the district court and remand the case for 

trial. In the alternative, this Court should note probable jurisdiction of 

this appeal. 

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 the Attorney General 

July 6, 1998 *Counsel of Record 

   



APPENDIX 

 



  
  

 
 

       

      
 



  
  

TABLE OF CONTENTS 

Opinions of United States District Court for the 

Eastern District of North Carolina, April 14, 1998 

Memorandum Opinion... ........ ..u. 5 Pid 

DISSEAt si, i de eae 

Order and Permanent Injunction of United States 

District Court for the Eastern District of 

North Caroling, April 3.1998 ........s iui 

Notice of Appeal, April 6,1998 ................... 

Judgment of United States District Court for the 

Eastern District of North Carolina, April 6, 1998 . . .. 

Amended Notice of Appeal, April 8,1998 ......... 

Judgment of United States District Court for the 

Eastern District of North Carolina, April 14, 1998 ... 

Order of United States District Court for the 

Eastern District of North Carolina, April 21, 1998 . ... 

North Carolina 1997 Congressional Plan (map) ...... 

North Carolina 1992 Congressional Plan (map) ...... 

997C-27N of the Section 5 Submission Commentary, 

Affidavit of Gary O. Bartlett (CD47) ............. 

* Civil Docket  



  

Affidavit of Senator Roy A. Cooper, III 
(without attachments} {CD 47)... ue ie a 69a 

Affidavit of Representative W. Edwin McMahan 
(without attachment (CD 47) .5. .oiiitiivinin ing 79a 

Affidavit of David W. Peterson, PhD 

(withont attachment {CD 47) .... 0. vu vi ibn 85a 

Affidavit of Dr. Alfred W. Stuart 
(without attachments} (CD 47Y . ..... .oii livin. 101a 

“An Evaluation of North Carolina’s 1998 

Congressional Districts” by Professor 
Gerald R. Webster (without maps) (CD 47) ......... 107a 

Shaw, et al. v. Hunt, et al., 

CA No. 92-202-CIV-5-BR, Order of United States 

District Court for the Eastern District of 

North Carolina, September 12,1997 ............... 157a 

Shaw, et al. v. Hunt, et al., 

CA No. 92-202-CIV-5-BR, Memorandum Opinion 
of the United States District Court for the 

Eastern District of North Carolina, 

September 12,1997 crs or Tae 159a 

U.S.CoNST.amend. XIV, 31... union a 169a 

PED. RICIV. PASO 0. Jo ol eis on oa se oe 171a 

Order of the United States District Court for the 

Eastern District of North Carolina, June 22, 1998 .. ... 175a 

    
 



  

Shaw, et al. v. Hunt, et al., 

CA No. 92-202-CIV-5-BR, Order of 

United States District Court for the Eastern District 

Of North Carchna, June 9, 1997... . 0. ci viii én 181a 

Shaw, et al. v. Hunt, et al., 

CA No. 92-202-CIV-5-BR, Plaintiffs’ Response to 

Order of June 9, 1997, June 19,1997 .............. 183a 

 



    

[This page intentionally left blank] 

  
 



      

la 

OPINIONS OF UNITED STATES DISTRICT COURT FOR THE 

EASTERN DISTRICT OF NORTH CAROLINA, APRIL 14, 1998 

[Caption Omitted in Printing] 

MEMORANDUM OPINION * 

This matter is before the Court on the Plaintiffs’ 

Motions for Preliminary Injunction and for Summary Judg- 

ment, and on the Defendants’ Motion for Summary Judgment. 

The underlying action challenges the congressional redistrict- 

ing plan enacted by the General Assembly of the State of North 

Carolina on March 31, 1997, contending that it violates the 

Equal Protection Clause of the Fourteenth Amendment, and 

relying on the line of cases represented by Shaw v. Hunt, 517 

U.S. 899, 116 S. Ct. 1894, 135 L. Ed. 2d 207 (1996) (“Shaw 

Ir’), and Miller v. Johnson, 515 U.S. 900,904, 115 S. Ct. 2475, 

2482, 132 L. Ed. 2d 762 (1995). Ww : 

Following a hearing in this matter on March 31, 1998, 

the Court took the parties’ motions under advisement and 

thereafter issued an Order and Permanent Injunction (1) finding 

that the Twelfth Congressional District under the 1997 North 

Carolina Congressional Redistricting Plan is unconstitutional, 

and granting Plaintiffs’ Motion for Summary Judgment as to 

the Twelfth Congressional District; (2) granting Plaintiffs’ 

Motion for Preliminary Injunction and granting Plaintiffs’ 

request, as contained in its Complaint, for a Permanent Injunc- 

tion, thereby enjoining Defendants from conducting any  



  

2a 

MEMORANDUM OPINION, CONTINUED. .. 

primary or general election for congressional offices under the 

redistricting plan enacted as 1997 N.C. Session Laws, Chapter 

11; and (3) ordering that the parties file a written submission 

addressing an appropriate time period within which the North 

Carolina General Assembly may be allowed the opportunity to 

correct the constitutional defects in the 1997 Congressional 

Redistricting Plan, and to present a proposed election schedule 

to follow redistricting which provides for a primary election 

process culminating in a general congressional election to be 

held on Tuesday, November 3, 1998, the date of the previously 

scheduled general election. 

That Order was issued on April 3, 1998, by a majority 

of the three-judge panel. Circuit Judge Sam J. Ervin, III, 

dissented. Defendants filed a Motion for a Stay of the April 3 

Order, which was denied by this Court by Order dated April 6, 

1998. Defendants also appealed the April 3 Order to the 

Supreme Court, and the appeal is still pending in that Court. 

This Memorandum and Opinion refers to that Order, and shall 

be the opinion of the Court. 

BACKGROUND 

In Shaw II the United States Supreme Court held that 

the Twelfth Congressional District created by the 1992 Con- 

gressional Redistricting Plan (hereinafter, the “1992 plan”) had 

been race-based and could not survive the required “strict 

scrutiny.” 517 U.S. 899, 116 S. Ct. 1894. The five plaintiffs 

    
 



  

3a 

MEMORANDUM OPINION, CONTINUED. .. 

in Shaw lacked standing to attack the other majority-minority 

district (the First Congressional District under the 1992 plan) 

because they were not registered voters in the district. /d. 

Soon after the Supreme Court ruled in Shaw 11, hi) 

residents of Tarboro, North Carolina, filed the original Com- 

plaint in this action on July 3, 1996. These original Plaintiffs 

resided in the First Congressional District (alternatively, 

“District 17”) as it existed under North Carolina’s 1992 plan. 

The Plaintiffs charged that the First Congressional District 

violated their rights to equal protection under the United States 

Constitution because race predominated in the drawing of the 

District. The action was stayed pending resolution of remand 

proceedings in Shaw v. Hunt, and on July 9, 1996, the same 

three Tarboro residents joined the Plaintiffs in Shaw in filing an 

Amended Complaint in that case, similarly 

challenging District I. ww 

By Order dated September 12, 1997, the three-judge 

panel in Shaw approved a congressional redistricting plan 

enacted on March 31, 1997, by the General Assembly as a 

remedy for the constitutional violation found by the Supreme 

Court to exist in the Twelfth Congressional District (alterna- 

tively, “District 12”). The Shaw three-judge panel also 

dismissed without prejudice, as moot, the plaintiffs’ claim that 

the First Congressional District in the 1992 plan was unconsti- 

tutional. Although it was a final order, the September 12, 1997, 

decision of the Shaw three-judge panel was not preclusive of  



  

4a 

MEMORANDUM OPINION, CONTINUED. .. 

the instant cause of action, as the panel was not presented with 

a continuing challenge to the redistricting plan.’ 

On October 17, 1997, this Court dissolved the stay 

previously entered in this matter. On the same day, two of the 

original three Plaintiffs, along with four residents of District 12, 

filed an amended Complaint challenging the 1997 remedial 

congressional redistricting plan (the “1997 plan”), and seeking 

a declaration that the First and Twelfth Congressional Districts 

in the 1997 plan are unconstitutional racial gerrymanders. The 

three-judge panel was designated by order of Chief Judge 

Wilkinsion [sic] of the Fourth Circuit Court of Appeals, dated 

January 23, 1998. The Plaintiffs moved for a preliminary 

injunction on January 30, 1998, and for summary judgment on 

February 5, 1998. The Defendants filed their instant summary 

  

] In its final Memorandum Opinion, the three-judge panel in Shaw, 

noted that there was “no substantive challenge to the [1997] plan by any 

party to this action,” and closed by explicitly “noting the limited basis of the 

approval of the plan that we are empowered to give in the context of this 

litigation. It is limited by the dimensions of this civil action as that is 
defined by the parties and the claims properly before us. Here, that means 

that we only approve the plan as an adequate remedy for the specific 

violation of the individual equal protection rights of those plaintiffs who 

successfully challenged the legislature’s creation of former District 12. Our 
approval thus does not-cannot-run beyond the plan’s remedial adequacy 

with respect to those parties and the equal protection violation found as to 
former District 12.” Shaw v. Hunt, No. 92-202-CIV-5-BR, at 8 (E.D.N.C. 
Sept. 12, 1997). 

A
 

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Sa 

MEMORANDUM OPINION, CONTINUED. .. 

judgment motion on March 2, 1998, and a hearing on these 

motions was held on March 31, 1998. 

FACTS ® 

The North Carolina General Assembly convened in 

regular session on January 29, 1997, and formed redistricting 

committees to address the defects found in the 1992 plan. 

These newly formed House and Senate Committees aimed to 

identify a plan which would cure the constitutional defects and 

receive the support of a majority of the members of the General 

Assembly. Affidavit of Senator Roy A. Cooper, III (“Cooper 

Aff.”) 93. In forming a workable plan, the committees were 

guided by two avowed goals: (1) curing the constitutional 

defects of the 1992 plan by assuring that race was not the 

predominant factor in the new plan, and (2) drawing the plan t 

maintain the existing partisan balance in the State’s dpa 

nal delegation. Cooper Aff. 95, 8, 10, 14; Affidavit of Gary 

O. Bartlett, Executive Secretary-Director of the State Board of 

Elections (“Bartlett Aff.”), Vol. I Commentary at 9-10. 

To achieve the second goal, the redistricting committees 

draw the new plan (1) to avoid placing two incumbents in the 

same district and (2) to preserve the partisan core of the 

existing districts to the extent consistent with the goal of curing 

the defects in the old plan. Cooper Aff. §14. The plan as 

enacted reflects these directives: no two incumbent Congress- 

men reside in the same district, and each district retains at least  



  

6a 

MEMORANDUM OPINION, CONTINUED. .. 

60% of the population of the old district. Cooper Aff. q8, 

Affidavit of Representative W. Edwin McMahan (“McMahan 

Aff.) 97. 

I. The Twelfth Congressional District 

District 12 is one of the six predominantly Democratic 

districts established by the 1997 plan to maintain the 6-6 

partisan division in North Carolina’s congressional delegation. 

District 12 is not a majority-minority district,> but 46.67 
percent of its total population is African-American. Bartlett 
Aff, Vol. 1 Commentary at 10 and 11. District 12 is composed 
of six counties, all of them split in the 1997 plan. The racial 
composition of the parts of the six sub-divided counties 

assigned to District 12 include three with parts over 50 percent 
African-American, and three in which the African-American 

percentage is under 50 percent. Declaration of Ronald E. 

Webber (“Webber Dec.”) §18. However, almost 75 percent of 

the total population in District 12 comes from the three county 

parts which are majority African-American in population: 

Mecklenburg, Forsyth, and Guilford counties. Id. The other 

three county parts (Davidson, Iredell, and Rowan) have narrow 

  

2 The Twelfth is not a majority-minority district as measured by 
any of three possible criteria. African-Americans constitute 47 percent of 
the total population of District 12, 43 percent of the voting age population 
of the District, and 46 percent of the registered voters in the District. 
Peterson Aff., at 8. 

        
 



  

7a 

MEMORANDUM OPINION, CONTINUED. .. 

corridors which pick up as many African-Americans as are 

needed for the district to reach its ideal size.’ Id. 

Where Forsyth County was split, 72.9 percent of the 

total population of Forsyth County allocated to District 1 

African-American, while only 11.1 percent of its total popula- 

tion assigned to neighboring District 5 is African-American. 

Id. 920. Similarly, Mecklenburg County is split so 51.9 percent 

of its total population allocated to District 12 is African- 

American, while only 7.2 percent of the total population 

assigned to adjoining District 9 is African-American. 

A similar pattern emerges when analyzing the cities and 

towns split between District 12 and its surrounding districts: 

the four largest cities assigned to District 12 are split along 

racial lines. Id. 423. For example, where the City of Charlotte 

is split between District 12 and adjacent District 9, 59. 

percent of the population assigned to District 12 is African- 

American, while only 8.12 percent of the Charlotte population 

assigned to District 9 is African-American. Affidavit of Martin 

B. McGee (“McGee Aff.”), Ex. L. And where the City of 

Greensboro is split, 55.58 percent of the population assigned to 

District 12 is African-American, while only 10.70 percent of 

the population assigned to District 6 is African-American. /d. 

  

} An equitably populated congressional district in North Carolina 
needs a total population of about 552,386 persons using 1990 Census data. 
Weber Dec. §39.  



  

8a 

MEMORANDUM OPINION, CONTINUED. .. 

An analysis of the voting precincts immediately 

surrounding District 12 reveals that the legislature did not 
simply create a majority Democratic district amidst surround- 
ing Republican precincts. For example, around the Southwest 
edge of District 12 (in Mecklenburg County), the legislature 

included within the district’s borders several precincts with 

racial compositions of 40 to 100 percent African-American; 
while excluding from the district voting precincts with less than 

35 percent African-American population, but heavily Demo- 

cratic voting registrations. Among Mecklenburg County 
precincts which are immediately adjacent to District 12, but not 
inside it, are precincts with 58.818 percent of voters registered 
as Democrats, and precincts that are 56.464 percent Democratic 
54.213 percent Democratic, 59.135 percent Democratic, 59.225 
percent Democratic, 54.498 percent Democratic, 59.098 

percent Democratic, 55.72 percent Democratic, 54.595 percent 
Democratic, 54.271 percent Democratic, 63.452 percent 
Democratic, and 59.453 percent Democratic. Id, Ex. P. 

Similarly, Forsyth County precincts that are immediately 
adjacent to, but not inside, District 12 include precincts with 
57.371 percent Democratic registration, 65.253 percent 
Democratic registration, 65.747 percent Democratic registra- 

tion, 65.747 percent Democratic registration, 76 percent 

Democratic registration, 55.057 percent Democratic registra- 

tion, 55.907 percent Democratic registration, 56.782 percent 

Democratic registration, 55.836 percent Democratic registra- 
tion, and 60.113 percent Democratic registration. Id., Ex. O. 
Finally, District 12 was drawn to exclude precincts with 59.679 

    

 



  

Qa 

MEMORANDUM OPINION, CONTINUED. .. 

percent Democratic registration, 61.86 percent Democratic 

registration, 58.145 percent Democratic registration, 62.324 

percent Democratic registration, 60.209 percent Democratic 

registration, 56.739 percent Democratic registration, 66.22 

percent Democratic registration, 57.273 percent bel 

registration, 55.172 percent Democratic registration, and 

63.287 percent Democratic registration, all in Guilford County. 

Id, Ex. N. 

On the North Carolina map, District 12 has an irregular 

shape and is barely contiguous in parts. Its Southwest corner 

lies in Mecklenburg County, very close to the South Carolina 

border, and includes parts of Charlotte. The District moves 

North through Rowan County and into Iredell County. There 

it juts West to pick up parts of the City of Statesville. More 

than 75 percent of the Statesville population that is included in 

District 12 is African-American, while only 18.88 perce 

the population of Statesville excluded from District 12 is 

African-American. McGee Aff., Ex. L. From Statesville, the 

District moves East into Rowan County. There it dips to the 

South to include Salisbury, before turning to the Northeast and 

entering Davidson County and the City of Thomasville. Over 

41 percent of the populations of Salisbury and Thomasville that 

are included in District 12 are African-American, while only 

15.39 and 9.55 percent, respectively, of those that are excluded 

from the Districtare African American. Id. The District makes 

a northwesterly incursion into Forsyth County to include parts 

of Winston-Salem, where 77.39 percent of the population  



  

10a 

MEMORANDUM OPINION, CONTINUED . .. 

within District 12 is African-American,and only 16.06 percent 
of the population left out is African-American. Id. The District 
moves to the East and narrows dramatically before opening up 
again to include the predominantly African-American parts of 
Greensboro, where the District ends. 

Objective, numerical studies of the compactness of 
congressional districts are also available. In his report, “An 
Evaluation of North Carolina’s 1998 Congressional Districts,” 
Professor Gerald R. Webster, one of the Defendants’ expert 
witnesses, presents statistical analyses of “comparator compact- 
ness indicators” for North Carolina’s congressional districts 
under the 1997 plan. In measuring the districts’ dispersion 
compactness’ and perimeter compactness,’ Professor Webster 
offers two of the “most commonly recognized and applied” 
compactness indicators. Webster, at 13 (citing Pildes & Niemi, 
Expressive Harms, “Bizarre Districts,” and Voting Rights: 

  

4 “Dispersion compactness” measures the geographic “dispersion” 
of a district. To calculate this a circle is circumscribed around a district. 
The reported coefficient is the proportion of the area of the circumscribed 
circle which is also included in the district. This measure ranges from 1.0 
(most compact) to 0. 0 (least compact). Webster, at 14. 

: “Perimeter compactness” is based upon the calculation of the 
district’s perimeter. The reported coefficient is the proportion of the area 
in the district relative to a circle with the same perimeter. This measure 
ranges from 1.0 (most compact) to 0.0 (least compact). Webster, at 14. The 
equation used here is (((4 x []) x Area of district) + (District’s Perimeter2)). 
Webster, at table 3. 

  

  
 



  

  
  

lla 

MEMORANDUM OPINION, CONTINUED. .. 

Evaluating Election-District Appearances After Shaw v. Reno, 

92 Mich. L. Rev. 483, 571-573, table 6 (1993) (hereinafter, 

“Pildes & Niemi”); and see Bush v. Vera, 517 U.S. 952, ae 

116 S. Ct. 1941, 1952, 135 L. Ed. 2d 248 (1996) (citing Pildes 

& Niemi compactness factors as supporting evidence  ] 

holding three Texas congressional districts unconstitutional). 

In discussing the relative normalcy of various compact- 

ness measures, Pildes and Niemi suggest that a “low” disper- 

sion compactness measure would be equal to or less than 0.15. 

Pildes & Niemi, at 564. They suggest that a “low” perimeter 

compactness measure 1s equal to or less than 0.05. /d. North 

Carolina’s Twelfth Congressional District under the 1997 plan 

has a dispersion compactnessindicator of 0.109 and a perimeter 

compactness indicator of 0.041. Webster, at table 3. These 

figures are much lower than the mean compactness indicators 

for North Carolina’s twelve congressional districts under 

1997 plan. The average dispersion compactness indicator for 

the State is 0.354, and the average perimeter compactness 

indicatoris 0.192. Id. The next lowest dispersion compactness 

indicator after District 12 is the 0.206 in the Fifth Congressio- 

nal District, and the next lowest perimeter compactness 

indicator is the First Congressional District’s 0.107. Id. 

IIL. The First Congressional District 

District 1 is another predominantly Democratic district 

established by the 1997 plan. Unlike District 12, it is a  



  

12a 

MEMORANDUM OPINION, CONTINUED. .. 

majority-minority district, based on percentages of the total 
population of the District,’ as 50.27 percent of its total popula- 
tion is African-Americans. Id., Vol. I Commentary at 10. 

District 1 is composed of ten of the 22 counties split in drawing 
the statewide 12 district 1997 plan. Weber Dec. 16. Half of 
the twenty counties represented in District 1 are split. Id Of 
the ten sub-divided counties assigned to District 1, four have 

parts with over 50 percent African-American population, four 
others have parts with over 40 percent African-American 
population, and two others have parts with over 30 percent 
African-American population. Id., 17. 

In each of the ten counties that are split between District 
1 and an adjacent district, the percent of the population that is 
African-Americanis higher inside the district than it is outside 
the district, but within the same county. Id., §19 and Table 2. 
The disparities are less significant than in the county splits 
involving District 12. Id, Table 2. For example, where 
Beaufort County is split between Districts 1 and 3, 37.7 percent 
of the total population of Beaufort County allocated to District 
1 is African-American, while 22.9 percent of the total popula- 
tion of Beaufort County assigned to District 3 is African- 

American. 

  

$ While 50.27 percent of the total population of District 1 is 
African-American, only 46.54 percent of the voting age population is 
African-American, based on the 1990 census data. Bartlett Aff., Vol. 1 
Commentary at 10. 

  

  

  
  

 



  

    
  

13a 

MEMORANDUM OPINION, CONTINUED. .. 

Similarly, nine of the 13 cities and towns split between 
District 1 and its neighboring districts are split along racial 
lines. Id., 422. For example, where the City of New Bern is 

split between District 1 and adjacent District 3, 48.27 percent 

of the population assigned to District 1 is African-Amer{h, 
while 24.49 percent of the New Bern population assigned to 
District 3 is African-American. McGee Aff., Ex. L. 

Viewed on the North Carolina map, District 1 is not as 

irregular as District 12. In the North, it spans 151.2 miles 
across, from Roxboro, Person County, in the West, to Sunbury, 

Gates County, in the East. Affidavit of Dr. Alfred W. Stuart 
(“Stuart Aff”), table 1. It is shaped roughly like the state of 
Florida, although the protrusion to the South from its “pan- 
handle” is only approximately 150 miles long (to Goldsboro, 
Wayne County, with two irregularities jutting into Jones, 
Craven, and Beaufort Counties. Cooper Aff., attachmdff)) 

These irregularities surround the peninsular extension of the 

Third Congressional District from the East, allowing the 
incumbent from the previous Third Congressional District to 
retain his residence within the boundaries of the same district, 

and avoiding placing two incumbents in District 1. 

The “comparator compactness indicators” from 

District 1 are much closer to the North Carolina mean compact- 

ness indicators than are those from District 12. For example, 

District 1 has a dispersion compactness indicator of 0.317 and 
a perimeter compactness indicator of 0.107. Webster, at table  



  

14a 

MEMORANDUM OPINION, CONTINUED. .. 

3. This dispersion compactness indicator is not significantly 

lower than the State’s mean indicator of 0.354, and is higher 

than the dispersion compactness indicators of Districts 12 

(0.109), 9 (0.292), and 5 (0.206). Id. It may be noted that 

Districts 5 and 9 are next to, and necessarily shaped by, District 

12. District 1 has a perimeter compactness indicator of 0.107, 

which is lower than North Carolina’s mean perimeter compact- 

ness indicator (0.192), but much higher than Pildes and Niemi’s 

suggested “low” perimeter compactness indicator (0.05). 

District 1’s perimeter compactness indicator is also much 

higher than that of District 12 (0.041). /d. 

DISCUSSION 

The Equal Protection Clause of the United States 

Constitution provides that no State “shall deny to any person 

within its jurisdiction the equal protection of the laws.” U.S. 

Const. amend, 14, § 1. The United States Supreme Court 

explained in Miller v. Johnson, 515 U.S., at 904, 115 S. Ct., at 

2482, that the central mandate of the Equal Protection Clause 

“is racial neutrality in governmental decisionmaking.” Applica- 

tion of this mandate clearly prohibits purposeful discrimination 

between individuals on the basis of race. Shaw v. Reno, 509 

U.S. 630,642,113 S. Ct. 2816,2824,125L. Ed. 2d 511 (1993) 

(“Shaw I”), (citing Washington v. Davis, 426 U.S. 229, 239, 

96 S. Ct. 2040, 2047, 48 L. Ed. 2d 597 (1976)). 

         



        

15a 

MEMORANDUM OPINION, CONTINUED. .. 

As the Supreme Court recognized, however, the use of 

this principle in “electoral districting is a most delicate task.” 

Miller, 515 U.S., at 905, 115 S. Ct., at 2483. Analysis of 

suspect districts must begin from the premise that “[l]Jaws that 

explicitly distinguish between individuals on racial grounds 

within the core of [the Equal Protection Clause’s] prohibition.” 

Shaw 1, 509 U.S, at 642, 113 S. Ct., at 2824. Beyond that, 

however, the Fourteenth Amendment’s prohibition “extends 

not just to explicit racial classifications,” Miller, 515 U.S., at 

905, 115 S. Ct., at 2483, but also to laws, neutral on their face, 

but “unexplainable on grounds other than race,” Arlington 

Heights v. Metropolitan Housing Development Corp, 429 U.S. 

252,266, 97 S. Ct. 555, 564, 50 L. Ed. 2d 450 (1977). 

In challenging the constitutionality of a State’s 

districting plan, the “plaintiff bears the burden of proving the 

race-based motive and may do so either through circumstant 

evidence of a district’s shape and demographics’ or through 

‘more direct evidence going to legislative purpose.’ ” Shaw II, 

517 US, at ___, 116 S. Ct., at 1900 (quoting Miller, 515 

U.S., at 916, 115 S. Ct., at 2488). In the final analysis, the 

plaintiff must show “that race was the predominant factor 

motivating the legislature’s decision to place a significant 

number of voters within or without a particular district.” Id., 

(quoting Miller, 515 U.S., at 916, 115 S. Ct., at 2488). 

Once a plaintiff demonstratesthat race was the predom- 

inant factor in redistricting, the applicable standard of review  



  

16a 

MEMORANDUM OPINION, CONTINUED. .. 

of the new plan is “strict scrutiny.” Thus, in Miller the 

Supreme Court held that strict scrutiny applies when race is the 

“predominant” consideration in drawing the district lines such 

that “the legislature subordinate[s] race-neutral districting 

principles . . . to racial considerations.” 515 U.S., at 916, 115 

S. Ct., at 2488. Under this standard of review, a State may 

escape censure while drawing racial distinctions only if it is 

pursuing a “compelling state interest.” Shaw II, 517 U.S., at 

a 7 1168. Ct., at 1902, 

However, “the means chosen to accomplish the State’s 

asserted purpose must be specifically and narrowly framed to 

accomplish that purpose.” Wygant v. Jackson Bd. of Ed., 476 

U.S. 267,280,106 S. Ct. 1842, 1850, 90 L. Ed. 2d 260 (1986) 

(opinion of Powell, J.). As the Supreme Court required in 

Shaw II, where a State’s plan has been found to be a racial 

gerrymander, that State must now “show not only that its 

redistricting plan was in pursuit of a compelling state interest, 

but also that its districting legislation is narrowly tailored to 

achieve that compelling interest.” 517 U.S.,at __ ,116 S. Ct., 

at 1902. 

We are cognizant of the principle that “redistricting and 

reapportioning legislative bodies is a legislative task which the 

federal courts should make every effort not to preempt.” Wise 

v. Lipscomb, 437 U.S. 535, 539, 98 S. Ct. 2493, 2497, 57 L. 

Ed. 2d 411 (1978) (citations omitted). “A State should be 

given the opportunity to make its own redistricting decisions so 

    
 



  

17a 

MEMORANDUM OPINION, CONTINUED. .. 

long as that is practically possible and the State chooses to take 

the opportunity. When it does take the opportunity, the 

discretion of the federal court is limited except to the extent 

that the plan itself runs afoul of federal law.” Lawyer v. Dep't 

of Justice, US. ©, .1178.C1.2186,2193. 1381. 

2d 669 (1997) (internal citations omitted). Thus, when the 

federal courts declare an apportionment scheme 

unconstitutional-as the Supreme Court did in Shaw II-it is 

appropriate, “whenever practicable, to afford a reasonable 

opportunity for the legislature to meet constitutional require- 

ments by adopting a substitute measure rather than for the 

federal court to devise and order into effect its own plan. The 

new legislative plan, if forthcoming, will then be the governing 

law unless it, too, is challenged and found to violate the 

Constitution.” Wise, 437 U.S., at 540, 98 S. Ct., at 2497. 

I. The Twelfth Congressional District is 

As noted above, the final decision of the three-judge 

panel in Shaw only approved the 1997 Congressional Redis- 

tricting Plan “as an adequate remedy for the specific violation 

of the individual equal protection rights of those plaintiffs who 

successfully challenged the legislature’s creation of former 

District 12.” Shaw v. Hunt, No. 92-202-CIV-5-BR, at 8 

(E.D.N.C. Sept. 12, 1997). In the instant case, we are faced 

with a ripe controversy as to the newly-configured Twelfth 

Congressional District. This panel must thus decide whether, 

as a matter of law, District 12 violates the equal protection  



  

18a 

MEMORANDUM OPINION, CONTINUED. .. 

rights of the Plaintiffs who live within the district and challenge 

its constitutionality. 

In holding that District 12 under the 1992 plan was an 

unconstitutional racial gerrymander, the Supreme Court in 

Shaw II noted, “[n]o one looking at District 12 could reason- 

ably suggest that the district contains a ‘geographically. 

compact’ populationof any race.” 517 U.S.,at __ ,116S. Ct, 

at 1906. The Shaw II Court thus struck the old District 12 as 

unconstitutional as a matter of law. In redrawing North 

Carolina’s congressional districts in 1997 the General Assem- 

bly was, of course, aware that District 12 under the 1992 plan 

had been declared unconstitutional; curing the constitutional 

deficiencies was one of the legislature’s declared goals for the 

redistricting process. Cooper Aff. 75, 8, 10, 14. 

Defendants now argue that the changes in District 12 

between the 1992 and 1997 plans are dramatic enough to cure 

it of its constitutional defects. They point to the fact that the 

new District 12 has lost nearly one-third (31.6 percent) of the 

population from the 1992 district and nearly three-fifths (58.4 

percent) of the land. These numbers do not advance the 

Defendants’ argument or end the Court’s inquiry. As Defen- 

dants themselves note, the Court’s role is limited to determin- 

ing “whether the proffered remedial plan is legally unaccept- 

able because it violates anew constitutional or statutory voting 

rights-that is, whether it fails to meet the same standards 

applicable to an original challenge of a legislative plan in 

    

¥ 

Ea 

i 

BE 
Tae 

  
 



19a 

MEMORANDUM OPINION, CONTINUED. .. 

place.” McGhee v. Granville County, 860 F.2d 110, 115 (4th 

Cir. 1988) (citing Upham v. Seamon, 456 U.S. 37, 42, 102 S. 

Ct. 1518,1521,71 L. Ed. 2d 725 (1982)). A comparison of the 

1992 District 12 and the present District is of limited valu 

AX here. The issue in this case is whether District 12 in the esd) 

1 plan violates the equal protection rights of the voters residing 

within it. 

: In Shaw I, the Supreme Court described old District 12 

= as “unusually shaped. It is approximately 160 miles long and 

t for much of its length, no wider than the [Interstate]-85 

corridor. It winds in snake-like fashion through tobacco 

i country, financial centers, and manufacturing areas until it 

i gobbles in enough enclaves of black neighborhoods.” 509 

1 U.S., at 635-636,113 S. Ct., at 2820-2821 (internal quotations 

omitted). Viewed without reference to District 12 under th 

1992 plan, the new District 12 is also “unusually al 

While its length has been shortened to approximately 95 miles, 

it still winds its way from Charlotte to Greensboro along the 

Interstate-85 corridor, making detours to pick up heavily 

African-Americanparts of cities such as Statesville, Salisbury, 

and Winston-Salem. It also connects communities not joined 

in a congressional district, other than in the unconstitutional 

1992 plan, since the whole of Western North Carolina was one 

district, nearly two hundred years ago. Pl.’s Brief Opp. Def.’s 

Mot. S.J, at 12. 

  
   



  

20a 

MEMORANDUM OPINION, CONTINUED. .. 

As noted above, where cities and counties are split 

between District 12 and neighboring districts, the splits are 

exclusively along racial lines, and the parts of the divided cities 

and counties having a higher proportion of African-Americans 

are always included in District 12. Defendants argue that the 

Twelfth has been designed with politics and partisanship, not 

race, in mind. They describe the District as a “Democratic 

island in a Republican sea,” and present expert evidence that 

political identification was the predominant factor determining 

the border of District 12. Affidavit of David W. (“Peterson 

Aff.”’),at2. As the uncontroverted material facts demonstrate, 

however, the legislators excluded many heavily-Democratic 

precincts from District 12, even though those precincts immedi- 

ately border the District. The common thread woven through- 

out the districting process is that the border of District 12 

meanders to include nearly all of the precincts with African- 

American population proportions of over forty percent which 

lie between Charlotte and Greensboro, inclusive. 

As noted above, objective measures of the compactness 

of District 12 under the 1997 plan reveal that it is still the most 

geographically scattered of North Carolina’s congressional 

districts. When compared to other previously challenged and 

reconstituted congressional districts in North Carolina, Florida, 

Georgia, Illinois, and Texas, District 12 does not fare well. The 

District’s dispersion and perimeter compactness indicators 

(0.109 and 0.041, respectively) are lower than those values for 

North Carolina’s District 1 (0.317 and 0.107 under the 1997 

       



  2la 

MEMORANDUM OPINION, CONTINUED. .. 

plan). Similarly, the District suffers in comparison to Florida's 

District 3 (0.136 and 0.05), Georgia’s District 2 (0.541 and 

1 0.411) and District 11 (0.444 and 0.259), Illinois’ District 4 

3} (0.193 and 0.026), and Texas District 18 (0.335 and 0.151), 
| District 29 (0.384 and 0.178), and District 30 (0.383 

0.180). 

Rule 56(c) of the Federal Rules of Civil Procedure 

provides that summary judgment shall be granted if there is no 

genuine issue as to any material fact and the moving party is 

entitled to judgment as a matter of law. The moving party must 

demonstrate the lack of a genuine issue of fact for trial, and if 

that burden is met, the party opposing the motion must show 

evidence of a genuine factual dispute. Celotex Corp. v. Catrett, 

477 U.S. 317, 324, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 

(1986). 

 _ 
Based on the uncontroverted material facts before it, 

the Court concludes that the General Assembly, in redistricting, 

used criteria with respect to District 12 that are facially race 

  

driven. District 12 was drawn to collect precincts with high 

racial identification rather than political identification. 

Further, the uncontroverted material facts demonstrate that 

precincts with higher partisan representation (that is, more 

heavily Democratic precincts) were bypassed in the drawing of 

District 12 and included in the surrounding congressional 

districts. The legislature disregarded traditional districting 

criteria such as contiguity, geographical integrity, community    



  

22a 

MEMORANDUM OPINION, CONTINUED. .. 

of interest, and compactness in drawing District 12 in North 

Carolina’s 1997 plan. Instead, the General Assembly utilized 

race as the predominant factor in drawing the District, thus 

violating the rights to equal protection guaranteed in the 

Constitution to the citizens of District 12.” 

To remedy these constitutional deficiencies, the North - 

Carolina legislature must redraw the 1997 plan in such a way 

that it avoids the deprivation of the voters’ equal protection 

rights not to be classified on the basis of race. This mandate of 

the Court leaves the General Assembly free, within its author- 

ity, to use other, proper factors in redrawing the 1997 plan. 

Among these factors, the legislature may consider traditional 

districting criteria, including incumbency considerations, to the 

extent consistent with curing the constitutional defects. See 

Shaw II,517U.S.,at __ ,116S. Ct., at 1901 (describing “race- 

neutral, traditional districting criteria”). 

IL. First Congressional District 

Based on the record before us, the Plaintiff has failed to 

establish that there are no contested material issues of fact that 

would entitle Plaintiff to judgment as a matter of law as to 

District 1. The Court thus denies Plaintiffs’ Motion for Sum- 

  

4 

The Supreme Court has indicated that, when drawing 
congressional districts, race may not be used as a proxy for political 

characteristics. Vera v. Bush, 517 U.S. 952, | 116 S. Ct. 1941, 1956, 
135 L. Ed. 2d 248 (1996). 

        
 



  

23a 

MEMORANDUM OPINION, CONTINUED. .. 

mary Judgment as to that District. Conversely, neither has the 

Defendant established the absence of any contested material 

issue of fact with respect to the use of race as the predominant 

factor in the districting of District 1 such as would entitle 

Defendant to judgment as a matter of law. 

CONCLUSION 

Based on the Order of this Court entered on April 3, 

1998, and the foregoing analysis, Defendants will be allowed 

the opportunity to correct the constitutional defects in the 1997 

Congressional Redistricting Plan, in default of which the Court 

would undertake the task. 

This Memorandum Opinion, like the Order to which it 

refers, is entered by a majority of the three-judge panel. Circuit 

Judge Sam J. Ervin, III, dissents. 

This, the 14th day of April, 1998. 

TERRENCE W. BOYLE 

Chief United States District Judge 

RICHARD L. VOORHEES 

United States District Judge 

/s/ TERRENCE W, BOYLE 

Chief United States District Judge  



    
24a 

[This page intentionally left blank] 

  
 



  

25a 

[Caption Omitted in Printing] 

DISSENT 

ERVIN, Circuit Judge, dissenting: | 

In Shaw v. Reno, the Supreme Court recognized a ® 

cause of action in voting rights law -- that state legislatures 

could not subordinate traditional districting principles to racial 

considerations in drawing legislative districts without trigger- 

ing strict scrutiny under the Equal Protection Clause of the 

Fourteenth Amendment, 509 U.S. 630 (1993) (“Shaw I). 

Because the districting plan before us is fundamentally differ- 

ent from the plans struck down by the Court in Shaw I and its 

progeny, see Miller v. Johnson, 515 U.S. 900 (1995); Shaw v. 

Hunt, 517 U.S. 899, 135 L. Ed. 2d 207 (1996) (“Shaw II"), 

Bush v. Vera, 517 U.S. 952,135 L. Ed. 2d 248 (1996), I do not 

believe that the Plaintiffs have proven any violation of their 

right to the equal protection of the laws. 

North Carolina’s twelfth congressional district is not a 

majority-minority district, it was not created as a result of 

strong-arming by the U.S. Department of Justice, and, contrary 

to the majority’s assertions, it is not so bizarre or unusual in 

shape that it cannot be explained by factors other than race. 

The Plaintiffs’ evidence is not so convincing as to undermine 

the State’s contention that the 1997 Plan was motivated by a 

desire to remedy the constitutional violations from the 1992 

Plan, to preserve the even split between Republicans and  



  

26a 

DISSENT, CONTINUED. .. 

Democrats in the North Carolina congressional delegation, and 

to protect incumbents by drawing the districts so that each 

incumbent resides in a separate district. Our acceptance of the 

State’s proffered justifications, absent more rigorous proof by 

the Plaintiffs, is especially appropriate in this context, consider- 

ing the deference that we are bound to accord state legislative 

decisions in questions of redistricting. Finally, I find it 

inconsistent to decide, as the majority has done today, that the 

General Assembly, while engaging in a state-wide redistricting 

process, was impermissibly influenced by predominantly racial 

considerations in the drawing of one district (the twelfth) while 

evidencing no such unconstitutional predilection in the other 

district under challenge (the first), or for that matter, any of 

North Carolina’s other ten congressional districts. For these 

reasons, I must respectfully dissent. 

In order to prevail on a race-predominance claim, the 

Plaintiffs must show “that race was the predominant factor 

motivating the legislature’s decision to place a significant 

number of voters within or without a particular district.” 

Miller, 515 U.S. at 916. The principle that race cannot be the 

predominant factor in a legislature’s redistricting calculus is 

simple. Applying that principle, on the other hand, is quite 

complex, because numerous factors influence a legislature’s 

districting choices and no one factor may readily be identified 

as predominant. 

  

  

   



              

27a 

DISSENT, CONTINUED. .. 

In undertaking this analysis, it is crucial to note that in 

the matter of redistricting, courts owe substantial deference to 

the legislature, which is fulfilling “the most vital of local 

functions” and is entrusted with the “discretion to exercise the 

political judgment necessary to balance competing interes 

Miller, 515 U.S. at 915. We presume the legislature acted in 

good faith absent a sufficient showing to the contrary. Id A 

state’s redistricting responsibility “should be accorded primacy 

to the extent possible when a federal court exercises remedial 

power.” Lawyer v. Department of Justice, 138 L. Ed. 2d 669, 

680 (1997). 

While the majority and I appear to be in agreement on 

those general principles, the majority does not discuss the 

extent of Plaintiffs’ burden in proving a claim of racial gerry- 

mandering. Concurring in Miller v. Johnson, Justice O’Connor 

emphasized that the plaintiff’s burden in cases of this kind @ 

be especially rigorous: 

I understand the threshold standard the Court 

adopts . . . to be a demanding one. To invoke 

strict scrutiny, a plaintiff must show that the 

State has relied on race in substantial disregard 

of customary and traditional districting prac- 

tices. ... [A]pplicationof the Court’s standard 

helps achieve Shaw’s basic objective of making 

extreme instances of gerrymandering subject to 

meaningful judicial review.  



  

28a 

DISSENT, CONTINUED. .. 

Miller, 515 U.S. at 928-29 (O’ Connor, J., concurring) (empha- 

sis added). This principle was recently developed by a three- 

Judge panel that upheld Ohio’s 1992 redistricting plan for its 

state legislature: 

As we apply the threshold analysis 

developed by the Supreme Court in Shaw cases, 

we are mindful of the dangers that a low thresh- 

old (easily invoking strict scrutiny) poses for 

states. We therefore follow Justice O’Connor’s 

lead in applying a demanding threshold that 

allows states some degree of latitude to con- 

sider race in drawing districts. 

Quilter v. Voinovich, 981 F. Supp. 1032, 1044 (N.D. Ohio 

1997), aff'd, 66 U.S.L.W. 3639 (U.S. Mar. 30, 1998) (No. 97- 

988). 

The Court has recognized that legislatures often have 

“mixed motives” -- they may intend to draw majority-minority 

districts as well as to protect incumbents or to accommodate 

other traditional interests. Bush v. Vera, 135 L. Ed. 2d at 257. 

In such a case, courts must review extremely carefully the 

evidence presented in order to determine whether an impermis- 

sible racial motive predominated. A determination that a state 

has relied on race in substantial disregard of customary and 

traditional districting practices will trigger strict scrutiny, 

though strict scrutiny does not apply merely because redistrict- 

    

 



  

29a 

DISSENT, CONTINUED. .. 

ing is performed with consciousnessof race. Jd. Plaintiffs may 

show that race predominated either through direct evidence of 

legislative intent or through circumstantial evidence, such as 

the extremely contorted nature of a district's shape and j 

racial demographics. Shaw II, 135 L. Ed. 2d at 218-2 

Miller, 515 U.S. at 916. 

The Plaintiffs have presented no direct evidence that the 

General Assembly’s intent was to draw district lines based on 

race. In contrast to the redistricting plans at issue in North 

Carolina in Shaw II, in Texas in Bush v. Vera, and in Georgia 

in Miller v. Johnson, the 1997 Plan was not drawn with an 

articulated desire to maximize minority voting participation. 

In order to succeed on summary judgment, the Plaintiffs must 

therefore present circumstantial evidence that the State not only 

showed substantial disregard for traditional districting pringj- 

ples, but that the predominant factor in the ri 

decision to act as it did was race. 

II. 

The State has asserted that several criteria were more 

important than race in the General Assembly’s creation of the 

1997 Redistricting Plan. The General Assembly drew the 1997 

Plan to remedy the constitutional violations in the 1992 Plan, 

to preserve North Carolina’s partisan balance of six Republi- 

cans and six Democrats, and to avoid placing two incumbents 

in the same district. See Defendants’ Br. in Support of Sum-  



  

30a 

DISSENT, CONTINUED. .. 

mary Judgment at 4-7 (“Defendants’ Br.”). In order to grant 

Plaintiffs the relief they seek, they must prove that the state has 

substantially disregarded these proffered redistricting criteria, 

as well as other traditional districting criteria, in favor of race. 

I believe that the Plaintiffs have failed to meet this burden. 

First and foremost, the districts at issue here are not 

majority-minoritydistricts.' I find it of utmost importance that 

only 43.36% of the voting-age population in District 12 is 

African-American. This fact immediately distinguishes this 

case from the line of Supreme Court cases that have struck 

down racial gerrymandering in North Carolina, Florida, 

Georgia, Louisiana, and Texas -- cases that define the equal 

protection inquiry in this area. The Court itself recognized this 

distinction when it recently upheld a Florida state senate district 

  

The Supreme Court has not articulated whether a district is 
designated majority-minority by reference to voting-age population, by 

reference to overall population, or by reference to voter registration. 
Voting-age population would seem to be the appropriate benchmark. All 

people of voting age have the capacity to influence elections, whereas those 

under voting age obviously cannot. Counting only registered voters would 

potentially undercount those with the potential to influence elections. 

In District 12, 43.36% of the voting-age population is black, 

while 46.67% of the total population is black. In District 1, 46.57% Of the 

voting-age population is black, while 50.27% of the total population is 

black. Under none of the possible criteria, then, can District 12 be 

considered a majority-minority district. District 1 can only be considered 
a majority-minority district with reference to total population. See 

Defendants’ Br. at 6. 

    

   



      

3la 

DISSENT, CONTINUED. .. 

that was not a majority-minority district. See Lawyer, 138 L. 

Ed. 2d at 680 (upholding state senate district with 36.2% black 

voting-age population); see also Quilter v. Voinovich, 66 

U.S.L.W. 3639 (U.S. Mar. 30, 1998) (No. 97-988) (affirming 

decision of three-judge panel that rejected a racial gerryr(g- 

dering challenge to Ohio legislative districts that were not 

majority-minority). 

In its racial composition, District 12 is no different from 

every one of North Carolina’s other eleven congressional 

districts: the majority of the voting-age population in the 

district is white. While this may not be dispositive of the 

question whether race was the predominant factor in the 

legislature’s redistricting plan, the fact that all of North 

Carolina’s congressional districts are majority-white at the 

very least makes the Plaintiffs’ burden, which is already quite 

high, even more onerous. Had the legislature been pred 

nantly influenced by a desire to draw District 12 according to 

race, I suspect it would have created a district where more than 

43% of the voting-age population was black. In part because 

District 12 is not a majority-minority district, I find no reason 

to credit the Plaintiffs’ contention that race was the predomi- 

nant factor in the legislature’s decisions. This is especially true 

considering that the legislature has proffered several compel- 

ling, non-racial factors for its decision. 

Second, this case is readily distinguishable from 

previous racial gerrymandering case because the plan at issue  



  

32a 

DISSENT, CONTINUED... 

is not the result of North Carolina’s acquiescence to pressure 

from the U.S. Justice Department, acting under its Voting 

Rights Act preclearance authority. In previous cases in which 

the Court struck down challenged districts, the legislatures 

drew the challenged plans after their initial plans had been 

denied preclearance by the Department of Justice under its 

“black-maximization” policy. See Miller, 515 U.S. at 921. For 

example, in Miller, the Court found that the creation of the 

unconstitutional district was in direct response to having had 

two previous plans denied preclearance by the Justice Depart- 

ment. See id. (“There is little doubt that the State’s true 

interest in designing the Eleventh District was creating a third 

majority-minority district to satisfy the Justice Department’s 

preclearance demands.”). In Shaw II, the Court recognized that 

North Carolina decided to draw two majority-minority districts 

in response to the Justice Department’s denial of preclearance 

to a previous plan. Shaw II, 135 L. Ed. 2d at 219 (noting that 

the “overriding purpose [of the redistricting plan] was to 

comply with the dictates of the Attorney General’s Dec. 18, 

1991 letter [denying preclearance to previous plan] and to 

create two congressional districts with effective black voting 

majorities”) (quotation omitted). 

In contrast, while the Department of Justice granted 

preclearance to the plan at issue in this case, the Department 

did not engage in the kind of browbeating that the Supreme 

Court has found offensive in previous racial gerrymandering 

cases. In the cases I have cited, the Court relied on this direct 

    
 



  

33a 

DISSENT, CONTINUED. .. 

evidence, that the legislature was primarily motivated by race, 

to invoke strict scrutiny of the challenged districts. Unlike 

those cases, Plaintiffs have proffered neither direct nor circum- 

stantial evidence that the General Assembly was pressured 

the Department of Justice to maximize minority participat 

when it redrew the congressional districts in 1997. In the 

absence of such evidence, I have little reason to believe that the 

State is less than candid in its averments to this court that race 

was not the predominant factor used by the legislature when 

crafting the 1997 redistricting plan. 

In reaching its decision, the majority has relied heavily 

on evidence that District 12 could have been drawn to include 

more precincts where a majority of registered voters are 

Democrats, but that it was not so drawn, presumably for 

reasons that can be predominantly explained on no other basjs 

but race. I cannot agree with the majority’s wy 

the evidence. The Plaintiffs, and the majority opinion, provide 

anecdotal evidence that certain precincts that border District 12, 

but were not included in that district, have a high number of 

voters that are registered Democrats. See supra at 8-9. This 

evidence does not take into account, however, that voters often 

do not vote in accordance with their registered party affiliation. 

The State has argued, and I see no reason to discredit their 

uncontroverted assertions, that the district lines were drawn 

based on votes for Democratic candidates in actual elections, 

rather than the number of registered voters. See Affidavit of 

Senator Roy A. Cooper, III (“Cooper Aff.”) 48 (“election  



  

34a 

DISSENT, CONTINUED. .. 

results were the principal factor which determined the location 

and configuration of all districts”). 

The majority’s evidence also ignores the simple fact 

that the redistricting plan must comply with the equal protec- 

tion principle of “one person, one vote.” Every voter must go 

somewhere, yet all districts must remain relatively equal in 

population. Plaintiffs’ anecdotal evidence suggests that 

Democratic precincts could have been included in District 12 

in certain areas, had the district only been enlarged to include 

those places. By necessity, however, the district would need to 

have been reduced in size in other places in order to accommo- 

date the increase in the overall population in the district. Had 

the State drawn the lines in the manner that Plaintiffs’ evidence 

implies it should have, it appears that the State simply would 

have traded a Democratic precinct in one part of the district for 

a Democratic precinct in another part. Perhaps such line- 

drawing would have satisfied the Plaintiffs’ desire that District 

12 contain more than a 57% white majority, but I do not agree 

with the majority that the Constitution requires it. 

In contrast to Plaintiffs’ anecdotal evidence (which is 

presented in an affidavit by Plaintiffs’ counsel), the State has 

presented far more convincing evidence that race was not the 

predominant factor in the General Assembly’s decision to draw 

District 12 as it has been drawn. See Affidavit of Dr. David W. 

Peterson (“Peterson Aff.”). In his statistical analysis, Professor 

Peterson traveled the entire circumference of District 12, 

      
   



      

35a 

DISSENT, CONTINUED. .. 

looking at both the party affiliation and racial composition of 

the precincts on either side of the district line. Based on an 

analysis of the entire district, Professor Peterson concluded that 

“the path taken by the boundary of the Twelfth District can be 

attributed to political considerations with at least as ’¢ A 

statistical certainty as it can be attributed to racial consider- 

ations.” Peterson Aff. §3. In other words, examining the entire 

circumference of District 12, rather than relying on Plaintiffs’ 

“pick and choose” examples, there is no statistical evidence to 

support the conclusion that race was the General Assembly’s 

primary motive in drawing District 12. 

Furthermore, the majority sees fit to ignore evidence 

demonstrating that not only did the legislature utilize traditional 

race-neutral districting principles in drawing the Twelfth 

District’s lines, but that these principles predominated over any 

racial considerations. According to the Supreme Court, fp 

“race-neutral” principles include, but are not limited to: 

compactness, contiguity, respect for political subdivisions or 

communities of interest, and incumbency protection. See Bush 

v. Vera, 135 L. Ed. 2d at 260; Miller, 515 U.S. at 916. The 

majority would apparently add “geographical integrity” to this 

list, although I am not clear what exactly they mean by that.’ 

  

2 The term “geographical integrity” does not appear in any of the 
Supreme Court’s voting rights cases, and the only lower court case that 
expressly uses the term, DeWitt v. Wilson, 856 F. Supp. 1409, 1411 (E.D. 

Cal. 1994), did so only because it was a standard set out in the state’s 
(continued...)  



  

36a 

DISSENT, CONTINUED. .. 

See supra at 22. Regardless of what is included on the list, 

however, the fact remains that the legislature relied more 

heavily on these neutral principles than on race when it chose 

the boundaries of District 12. 

The compactness of District 12 is, admittedly, substan- 

tially less than what has been deemed to be “ideal” and is the 

least compact of all of North Carolina’s twelve congressional 

districts. See supra at 11 (citing Pildes & Niemi “compactness 

factors”). Some district, however, must inevitably be the least 

compact; that fact alone therefore is not dispositive. And 

because District 12 reflects the paths of major interstate 

highway corridors which make travel within the district 

extremely easy, it has a type of “functional compactness” that 

1s not necessarily reflected by the Pildes & Niemi factors. In 

addition, District 12 as it currently stands is contiguous. 

Contrary to the majority’s allusions to “narrow corridors,” see 

supra at 7, the width of the district is roughly equal throughout 

its length, see Affidavit of Dr. Gerald R. Webster tbl. 1. 

District 12 also was designed to join a clearly defined 

“community of interest” that has sprung up among the inner- 

cities and along the more urban areas abutting the interstate 

highways that are the backbone of the district. I do not see how 

anyone can argue that the citizens of, for example, the inner- 

  

2 (...continued) 

constitution. 

    
 



      

3 

  

37a 

DISSENT, CONTINUED. .. 

city of Charlotte do not have more in common with citizens of 

the inner-cities of Statesville and Winston-Salem than with 

their fellow Mecklenburg county citizens who happen to reside 

in suburban or rural areas. ® 

The tricky business of drawing borders to protect 

incumbents also required the legislature to draw District 12 in 

the way it did. District 12 had to be drawn in a manner that 

avoided placing both Congressman Burr's and Coble’s resi- 

dences inside the district, excluded Cabarrus County, where 

Congressman Hefner resides, and still provided enough 

Democratic votes to protect incumbent Congressman Watt's 

seat. See Cooper Aff. 10. 

What I find to be the predominating factors in drawing 

the 1997 Plan, however, were the legislature’s desire to 

maintain the 6-6 partisan balance in the House and to pri 

incumbents. See Cooper Aff. q 8 (stating maintaining partisan 

balance was the principal factor driving redistricting). These 

are legitimate interests which have been upheld by the Supreme 

Court in previous voting rights cases, see, e.g., Bush v. Vera, 

135 L. Ed. 2d at 260-61, and were proper concerns for the 

legislature here. As I noted before, the majority’s decision to 

look only at the percentage of registered Democrats in analyz- 

ing the district’s borders ignores the fact that registered 

Democrats are not compelled to vote for Democratic candidates 

and often do not. In drawing District 12, therefore, the legisla- 

ture did not consider merely the number of registered Demo-  



  

38a 

DISSENT, CONTINUED... 

crats, rather it looked also to the history of recent voting 

patterns in an attempt to design the districts to ensure that the 

partisan balance would remain stable. See Cooper Aff. 8; 

Peterson Aff. § 21. 

Finally, I find it highly unlikely, as the majority has 

found today, that the General Assembly acted with predomi- 

nantly racial motives in its drawing of District 12, but did not 

act with the same motive in its drawing of District 1. The 

General Assembly considered the 1997 Redistricting Plan as a 

single, statewide proposal, and it makes little sense to me that 

the General Assembly would have been animated by predomi- 

nantly racial motives with respect to the Twelfth District and 

not the First. This inconsistency is even more apparent when 

one considers that the legislature placed more African-Ameri- 

cans in District 1 (46.54% of the voting-age population) than 

in District 12. Since we all agree that the Plaintiffs have failed 

to prove any equal protection violation with respect to the 

legislature’s decision in drawing District 1, I find it unlikely 

that Plaintiffs’ proof would demonstrate otherwise with regard 

to other aspects of the same redistricting plan. 

        
   



  

39a 

DISSENT, CONTINUED. .. 

IIL. 

Not only do I disagree with the majority in their holding 

the Twelfth District unconstitutional, I believe that -- even if 

the Twelfth District is unconstitutional -- they are in erro) 

enjoining the current election process, which is already 

substantially underway. The rationale for allowing elections to - 

proceed after a court has declared them to be constitutionally 

infirm has been clearly articulated by the Supreme Court in 

Reynolds v. Sims, 377 U.S. 533, 585 (1964): 

[Olnce a State’s legislative apportionment 

scheme has been found to be unconstitutional, 

it would be the unusual case in which a court 

would be justified in not taking appropriate 

action to insure that no further elections are 

conducted under the invalid plan. However, w 

under certain circumstances, such as where an 

impending election is imminent and a State’s 

election machinery is already in progress, 

equitable considerations might justify a court in 

withholding the granting of immediately effec- 

tive relief in a legislative apportionment case, 

even though the existing apportionment scheme 

was found invalid. In awarding or withholding 

immediate relief, a court is entitled to and 

should consider the proximity of a forthcoming 

  
  

election and the mechanics and complexities of    



  

40a 

DISSENT, CONTINUED. .. 

state election laws, and should act and rely 

upon general equitable principles. With respect 

to the timing of relief, a court can reasonably 

endeavor to avoid a disruption of the election 

process which might result from requiring 

precipitate changes that could make unreason- 

able or embarrassing demands on a State in 

adjusting to the requirements of the court’s 

decree. 

Weighing the equities here, it is clear that this is one of the 

“unusual” cases contemplated by Reynolds v. Sims and there- 

fore an injunction should not be issued at this point in the 

election cycle. 

On January 30, 1998, when the Plaintiffs filed their 

motion for a preliminary injunction to these elections, the 

deadline for candidates to file for the primary elections was 

only four days away. Voters had already contributed over $3 

million to the congressional candidates of their choice, and the 

candidates themselves had spent approximately $1.5 million on 

their campaigns. See Second Affidavit of Gary O. Bartlett 

(“Bartlett Second Aff.”) § 14 (giving figures for the period 

from July 1 to December 31, 1997), Ballots have already been 

prepared, printed, and distributed. Absentee balloting for the 

primary elections began on March 16, 1998 and undoubtedly 

some voters have already cast their votes. The primary 

elections themselves are scheduled for May 5, only a few short 

    
 



  

41a 

DISSENT, CONTINUED. .. 

weeks away. This court’s injunction therefore wreaks havoc on 

an electoral process that is in full swing. 

An injunction puts the North Carolina legislature on the 

horns of a dilemma. It may choose to run the May '® 

elections as scheduled for everything but the congressional 

primaries, and then spend millions of dollars scheduling a 

separate election for the congressional primaries’ -- an election 

for which few people are likely to make a special trip to the 

election booth. Or the State may decide to spend millions of 

dollars to reschedule the entire May election and affect hun- 

dreds of races for offices throughout the State. Forcing the 

State to choose between these two equally unpalatable choices 

is unreasonable. 

In addition, the injunction will disrupt candidates’ 

campaigning and voter contributions to those campai 

Redrawing the Twelfth District’s boundaries will inevitably 

change the boundaries of the surrounding districts, and the 

ripple effects of this redrawing may well affect many other 

districts in the State, as happened when the 1997 Plan sup- 

planted the 1992 Plan. Congressional candidates cannot be 

certain whom they will represent or who their opponents will 

be until the districts are redrawn. Voters likewise will be 

unsure whether the candidates of their choice will end up in 

  

3 The cost of a single, statewide election, primary or general, is 
said to be $4,300,000. See Bartlett Second Aff. | 13.  



  

42a 

DISSENT, CONTINUED. .. 

their district. Not only will contributions to candidates and 

campaigning by candidates be slowed, if not halted, while the 

redistricting takes place, but once the redistrictingis completed, 

candidates and voters will have scant time to become ac- 

quainted with each other before elections take place. See 

McKee v. James, CV-97-C-2078-W (N.D. Ala. March 24, 

1998) (refusing to enjoin elections even though qualifying date 

for primary had not yet passed because “[slome energy is 

already invested; some persons have declared their candidacy 

to represent a certain districts. . . Even if redistricting were 

carried out today, it would disturb the expectations of candi- 

dates and their supporters, and it would disrupt the state’s 

conduct of the primaries.”); Smith v. Beasley, 946 F. Supp. 

1174, 1212 (D.S.C. 1996) (refusing to issue injunction six 

weeks before general election when “[c]andidates have already 

spent significant time and money campaigning, and voters have 

begun to familiarize themselves with the candidates” because 

delay would disrupt elections unnecessarily and confuse 

voters). Accord Vera v. Richards, 861 F. Supp. 1304, 1351 

(S.D. Tex. 1994), affirmed sub nom. Bush v. Vera, 135 L. Ed. 

2d 245 (1996) (finding congressional districts unconstitutional 

eleven weeks before general elections but allowing them to 

proceed under unconstitutional apportionment plan). This will 

negatively affect the quality of the representation that citizens 

of North Carolina receive in Congress, and counsels against 

upsetting the current elections. 

    

 



  

  

43a 

DISSENT, CONTINUED. .. 

IV. 

In its opinion, the majority concludes that neither the 

Plaintiffs nor the State has established the absence of a genuine 

issue of material fact that would entitle either party to judg 

as a matter of law. See supra at 22-23. 1 believe that all 

material facts concerning the First District are uncontroverted-- 

this panel received the same evidence concerning District 1 as 

it did for District 12. If summary judgment is appropriate for 

District 12. I see no reason why District 1’s constitutionality 

cannot be decided on summary judgment as well. The majority 

is simply wrong to require the State to establish the absence of 

an issue of material fact. See Celotex Corp. v. Catrett, 477 

U.S. 317,325 (1986) (“| W]e do not think . . . that the burden is 

on the party moving for summary judgment to produce 

evidence showing the absence of a genuine issue of material 

fact. . ..”). Because I believe that the Plaintiffs have tail fp 

demonstrate that the First Congressional District under the 

1997 Congressional Restricting [sic] Plan is an unconstitutional 

classification based on race, I would grant the State’s motion 

for summary judgment. 

Y. 

I agree with the majority that Plaintiffs have failed to meet 

their burden on summary judgment as to District 1, although I 

would go further and grant the State’s motion for summary 

judgment as to this district. I dissent from the majority’s  



  

44a 

DISSENT, CONTINUED. .. 

decision granting the Plaintiffs’ motion for summary judgment 

on District 12, and enjoining elections under the 1997 Plan. 

For the reasons stated above, I would grant the State’s motion 

for summary judgment, finding that Plaintiffs have not proven 

a violation of their right to equal protection of the laws. 

    
 



      

45a 

ORDER AND PERMANENT INJUNCTION OF UNITED STATES 

DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH 

CAROLINA, APRIL 3, 1998 

[Caption Omitted in Printing] 

ORDER AND PERMANENT INJUNCTION 

THIS MATTER is before the Court on Plaintiffs’ 

motion for preliminary injunction, Plaintiffs’ motion for 

summary judgment, and Defendants’ motion for summary 

judgment. 

Following a hearing on Tuesday, March 31, 1998, the 

Court took these motions under advisement and now issues the 

following ruling: 

1) Finding that the Twelfth Congressional District under 

the 1997 North Carolina congressional redistricti 

plan is unconstitutional, the Court hereby GRAN 

Plaintiffs’ motion for summary judgment as to the 

Twelfth Congressional District. 

2) Based upon the Court’s finding that the Twelfth 

Congressional District is unconstitutional, it is further 

ORDERED that Plaintiffs’ motion for a preliminary 

injunction and Plaintiff’s request for a permanent 

injunction as contained in its complaint are 

GRANTED. Defendants are hereby ENJOINED from 

conducting any primary or general election for  



  

46a 

ORDER AND PERMANENT INJUNCTION, CONTINUED. .. 

3) 

congressional offices under the redistricting plan 

enacted as 1997 N.C. Session Laws, Chapter 11. 

It is further ORDERED that the parties file a written 

submission no later than Wednesday, April 8, 1998, 

addressing the following issues: 

a) 

b) 

An appropriate time period within which the North 

Carolina General Assembly may be allowed the 

opportunity to correct the constitutional defects in 

the 1997 plan, in default of which the Court would 

undertake the task. 

A proposed election schedule to follow 

redistricting which provides for a primary election 

process culminating in a general congressional 

election to be held on Tuesday, November 3, 1998. 

This order and permanent injunction are entered by a 

majority of the three-judge panel. Circuit Judge Sam J. Ervin, 

ITI, dissents. Memoranda with reference to this order will be 

issued as soon as possible. 

THIS the third day of April, 1998. 

  

/s/ Terrence W. Boyle 

Chief United States District Judge 

  
  

     



47a 

NOTICE OF APPEAL, APRIL 6, 1998 

[Caption Omitted in Printing] 

NOTICE OF APPEAL TO THE SUPREME COURT 

OF THE UNITED STATES ® 

Notice is hereby given that defendants appeal to the 

Supreme Court of the United States from the April 3, 1998 

final order of the three-judge district court declaring District 12 

in North Carolina’s 1997 Congressional Redistricting Plan 

unconstitutional and permanently enjoining the defendants   
oo - from conducting any primary or general election under that 

. plan. 

a This appeal is taken pursuant to 28 U.S.C. §1253. 

   



  

48a 

NOTICE OF APPEAL, APRIL 6, 1998, CONTINUED. .. 

This the 6th day of April, 1998. 

MICHAEL F. EASLEY 

ATTORNEY GENERAL 

/s/ Edwin M. Speas, Jr. 

Senior Deputy Attorney General 

/s/ Tiare B. Smiley 

Special Deputy Attorney General 

/s/ Norma S. Harrell 

Special Deputy Attorney General 

N.C. Department of Justice 

P.O. Box 629 

Raleigh, N.C. 27602 

(919) 716-6900 

[Certificate of Service Omitted in Printing] 

  
  
 



    

49a 

JUDGMENT OF UNITED STATES DISTRICT COURT FOR THE 

EASTERN DISTRICT OF NORTH CAROLINA, APRIL 6, 1998 

[Caption Omitted in Printing] 

JUDGMENT 

Decision by Court. This action came to trial or hearing before 

the Three Judge Court. The issues have been tried or heard and 

a decision has been rendered. 

IT IS ORDERED, ADJUDGED AND DECREED that the 

Court GRANTS Plaintiffs’ motion for summary judgment as 

to the Twelfth Congressional District. 

IT IS FURTHER ORDERED, ADJUDGED AND 

DECREED that Plaintiffs’ motion for a preliminary injunction 

and Plaintiffs’ request for a permanent injunction are 

GRANTED. Defendants are hereby ENJOINED fi 

conducting any primary or general election for congressional 

offices under the redistricting plan enacted as 1997 N.C. 

Session Laws, Chapter 11. 

 



  

50a 

JUDGMENT OF APRIL 6, 1998, CONTINUED... 

THIS JUDGMENT FILED AND ENTERED ON APRIL 6. 

  

  

1998 & COPIES TO: 
  

Robinson Everett, Esq. 

P.O. Box 586 

Durham, NC 27702 

Martin McGee, Esq. 

P.O. Box 810 

Concord, NC 28026 0810 

Edwin M. Speas, Jr., Esq. 

P.O. Box 629 

Raleigh, NC 27602 

April 6, 1998 DAVID W. DANIEL, CLERK 

/s/ Jolie Skinner 

(By) Deputy Clerk 

  

 



  

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51a 

AMENDED NOTICE OF APPEAL, APRIL 8, 1998 

[Caption Omitted in Printing] 

AMENDED NOTICE OF APPEAL TO 

THE SUPREME COURT OF THE UNITED STATES 

Amended notice is hereby given that defendants appeal 

to the Supreme Court of the United States from the April 3, 

1998 final order of the three-judge district court and the 

judgment entered April 6, 1998 declaring District 12 in North 

Carolina’s 1997 Congressional Redistricting Plan unconstitu- 

tional and permanently enjoining the defendants from conduct- 

ing any primary or general election under that plan. 

This appeal is taken pursuant to 28 U.S.C. §1253. 

 



  

52a 

AMENDED NOTICE OF APPEAL, CONTINUED. .. 

This the 8th day of April, 1998. 

MICHAEL F. EASLEY 

ATTORNEY GENERAL 

/s/ Edwin M. Speas, Jr. 

Senior Deputy Attorney General 

/s/ Tiare B. Smiley 

Special Deputy Attorney General 

/s/ Norma S. Harrell 

Special Deputy Attorney General 

N.C. Department of Justice 

P.O. Box 629 

Raleigh, N.C. 27602 

(919) 716-6900 

[Certificate of Service Omitted in Printing] 

  
  
 



  

53a 

JUDGMENT OF UNITED STATES DISTRICT COURT FOR THE 

EASTERN DISTRICT OF NORTH CAROLINA, APRIL 14, 1998 

[Caption Omitted in Printing] 

JUDGMENT 

Decision by Court. This action came to trial or hearing before 

the Three Judge Court. The issues have been tried or heard and 

a decision has been rendered. 

IT IS ORDERED, ADJUDGED AND DECREED that the 

Plaintiff’s Motion for Summary Judgment as to District 1 is 

DENIED. 

THIS JUDGMENT FILED AND ENTERED ON APRIL 14, 

1998 & COPIES TO: 

  

  

Robinson Everett, Esq. Edwin M. Speas, Jr., 

P.O. Box 586 P.O. Box 629 

Durham, NC 27702 Raleigh, NC 27602 

Martin McGee, Esq. 

P.O. Box 810 

Concord, NC 28026 0810 

April 14, 1998 DAVID W. DANIEL, CLERK 

/s/ Jolie Skinner 

(By) Deputy Clerk  



  

54a 

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55a 

ORDER OF UNITED STATES DISTRICT COURT FOR THE 

EASTERN DISTRICT OF NORTH CAROLINA, APRIL 21, 1998 

[Caption Omitted in Printing] 

ORDER 

This matter is before the Court on the parties’ ny 

to the Court’s April 3, 1998, Order which directed the 

Defendants to propose a schedule for redrawing the 1997 North 

Carolina Congressional Redistricting Plan (the “1997 plan”) 

and for holding congressional primaries and general elections 

this year. Having considered the parties’ arguments, the Court 

hereby ORDERS: 

1. On or before Friday, May 22, 1998, the North Carolina 

General Assembly will enact legislation revising the 

1997 plan and submit copies to the Court, along with 

indications with respect to any possible gubernat 

veto thereof. If the General Assembly does not revise 

the plan by that time, the Court will assume sole 

responsibility for drawing a plan. The General 

Assembly is directed to inform the Court immediately 

if prior to May 22, 1998, it becomes apparent that the 

two Houses of the General Assembly will be unable to 

agree on a plan. In that event, the Court will 

immediately assume responsibility for drawing an 

interim plan.  



  

56a 

ORDER, CONTINUED. .. 

2 Legislation revising the 1997 plan will be submitted to 

the Court for approval and to the United States 

Department of Justice for preclearance simultaneously. 

Within three (3) business days of enactment of the new 

legislation, Plaintiffs will inform the Court in writing 

whether they will oppose the legislation or not, and, if 

they oppose the legislation, they will provide the basis 

for their objections in detail. Defendants will have 

three (3) business days to respond to any objections. 

The 1998 congressional elections will be conducted 

under the new legislation if (1) the Court approves the 

new legislation, and (b) if the United States 

Department of Justice preclears the legislation by June 
24, 1998. In the event the Department of Justice has 

not precleared the legislation by June 24, 1998, the 

Court will assume sole responsibility for an interim 

plan for the 1998 elections. 

If the new enacted plan is not approved by the Court or 

sole responsibility to draw a plan falls to the Court, the 

Court will create an interim plan for the 1998 elections 

with a target completion date of July 1, 1998. This 

interim plan will also be used for the year 2000 

election cycle, unless the North Carolina General 

Assembly enacts, in a timely manner, a new plan 

  

  

  
      

 



57a 

ORDER, CONTINUED. .. 

which is approved by the Court and precleared by the 

Department of Justice as appropriate.   6. The 1998 election process, whether conducted under a 

legislative plan or a court ordered plan, must beg lo 

later than July 6, 1998, in order to hold the general 

election on November 3, 1998. The 1998 election 

schedule must contain the following elements:   
Filing period 

July 6 through July 20 

Absentee balloting begins for primary 

August 14 

    

Primary 

September 15 IX 

Absentee balloting begins for general election 

October 2 

General election 

November 3 

7. The North Carolina State Board of Elections is hereby 

ORDERED to implement the procedures necessary to 

comply with the above-listed 1998 election schedule.   

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58a 

ORDER, CONTINUED. .. 

SO ORDERED. 

This the 20th day of April, 1998. 

SAM J. ERVIN, III 

United States Circuit Judge 
TERRENCE W. BOYLE 
Chief United States District Judge 
RICHARD L. VOORHEES 
United States District Judge 

/s/ Terrence W. Boyle 

Chief United States District Judge 

    

    
  

   



  
  

  

NORTH CAROLINA CONGRESSIONAL PLAN 
Ratified March, 1997 

  

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NORTH CAROLINA CONGRESSIONAL PLAN 
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62a 

    

    
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63a 

9197C-27N OF THE SECTION 5 SUBMISSION COMMENTARY, 

AFFIDAVIT OF GARY O. BARTLETT (CD 47) 

997C-27N. Effect of Change on Minority Voters 

The General Assembly ’s primary goal in redrawing the 

plan was to remedy the constitutional defects in the former 

plan. Those defects were the predominance of race in the 

location and shape of District 12, and perhaps in the location 

and shape of District 1, and a failure of narrow tailoring. This 

goal was accomplished by emphasizing the following factors 

in locating and shaping the new districts: (1) avoidance of the 

division of counties and precincts; (2) avoidance of long 

narrow corridors connecting concentrations of minority 

citizens; (3) geographic compactness; (4) functional 

compactness (grouping together citizens of like interest and 

needs); and (5) ease of communication among voters and their 

representatives. Emphasis on these factors accomplished this 

goal. For example: (1) the unconstitutional plan divided 44 

counties while the new plan divides only 22 counties; (2) the 

unconstitutional plan divided 6 counties among 3 districts 

while the new plan does not divide any county among 3 

districts; (3) the unconstitutional plan divided 80 precincts 

while the new plan only divides 2 precincts; (4) the 

unconstitutional plan used “cross-overs,” “double cross-overs” 

and “points of contiguity” to create contiguous districts while 

the new plan uses none of these devices; (5) District 12 in the 

unconstitutional plan was 191 miles long (in “traveling 

distance”) while District 12 in the new plan is only 102 miles 

long; and (6) District 1 in the unconstitutional plan was 225 

miles long while District 1 in the new plan is only 171 miles 

long. In addition, the new plan makes new District 12 a highly 

urban district by joining together citizens in the City of 

             



                

64a 

97C-27N OF THE § S SUBMISSION COMMENTARY, 

CONTINUED... 

Charlotte and the cities of the Piedmont Triad (Greensboro, 

Winston-Salem and High Point). Conversely, new District 1 is 

a distinctively rural district formed from the largely agrarian 

and economically depressed northeastern counties. » 

The General Assembly’s other primary goal was to 

preserve the 6-6 partisan balance in the State’s current 

congressional delegation. This balance reflects the existing 

balance between Democrats and Republicans in the State. The 

State House of Representatives is presently controlled by 

Republicans; the State Senate is presently controlled by 

Democrats; and most statewide elections are decided by narrow 

margins. It was clear from the beginning that the only plan the 

Senate and House would be able to agree on was one that 

preserved the existing 6-6 balance in the congressional 

delegation. At the same time, the chairmen of the Senate and 

House redistricting committees felt strongly that the legislature 

had a constitutional duty to draw a plan for the three ugly 

panel to review, rather than leave that task to the court. 

these reasons, preservation of the existing partisan balance 

became a driving force in locating and shaping the districts. 

These primary goals were accomplished while still 

providing minority voters a fair opportunity to elect 

representatives of their choice in at least two districts (Districts 

1 and 12). Data and expert studies before the General 

Assembly provided a strong basis in evidence for the 

conclusion that the Gingles factors are present in the area 
generally encompassed by new District 1. See Attachment 

97C-28F-3B and 97C-28F-3B Ex. Based on this evidence,  



  

65a 

97C-27N OF THE § 5 SUBMISSION COMMENTARY, 
CONTINUED. .. 

legislative leaders concluded that avoidance of potential 

liability under Section 2 of the Voting Rights Act probably 

required the creation of a majority-minority district in that area. 

Accordingly, 50.27% of the total population within the District 
is African-American and 46.54% of the voting age population 
projections indicate that the percentage of African-American, 

based on 1990 census data. In addition, 1997 population 

projections indicate that the percentage of African-Americans 

and the percentage of African-American registered to vote are 

slightly higher in District 1 today than in 1990. See 

Attachment 97C-28A-2. These percentages plus the “cross- 

over” voters within the District (20 to 25%) provide African- 

American citizens in District 1 a reasonable opportunity to elect 

a candidate of their choice. This opportunity is almost certainly 

enhanced for the life of this plan (the 1998 and 2000 elections) 

by the incumbency of Eva Clayton. Congresswoman Clayton 

was elected from old District 1 in 1992, 1994 and 1996 with 

percentages of 67.0% and 61.0% and 65.9%, respectively, even 

though African-Americans constituted only 53% of the 

District’s voting age population and 50.5% of the District’s 

registered voters. 

The General Assembly did not have sufficient evidence 

to conclude, and believes that sufficient evidence does not exist 

to conclude, that Gingles factors exist in any other area of the 

State so as likely to require the creation of a second majority- 

minority district. In Shaw the Supreme Court specifically 

rejected the State’s argument that it had a compelling interest 

in creating a majority-minority district in the area encompassed 

by old District 12. Likewise, the General Assembly 

    

  
  
 



    
  

66a 

97C-27N OF THE § S SUBMISSION COMMENTARY, 

CONTINUED... 

specifically rejected the creation of a second majority-minority 

district in the area eastward of Charlotte to Cumberland and 

Robeson Counties, as proposed for example by Senator 

Cochrane. Creation of any district in that area wo 

artificially group together citizens with disparate and Hell 

economic, social and cultural interests and needs. It would 

sandwich rural voters between urban voters in the State’s 

banking and commercial center at one end of the district and 

voters residing on and around Fort Bragg and Pope Air Force 

Base at the other end of the district. Such a district would also 

rely on uncertain coalitions between African-American and 

Native-American voters for its “majority-minority” status. 

Significantly, it would have thwarted the goal of maintaining 

partisan balance. Under these circumstances, voters could not 

obtain effective representation, or be effectively represented. 

Moreover, under these circumstances, race would have become 

the predominate factor, to the exclusion of the State’s 

redistricting criteria, in the creation of a district which "¢ 

bear an uncomfortable resemblance to Georgia’s District 

declared unconstitutional in Miller v. Johnson. 

Nevertheless, District 12 in the State’s plan also 

provides the candidate of choice of African-American citizens 

a fair opportunity to win election. Though not a majority- 

minority district, the candidate of choice of the minority 

community withing the District will have a fair and reasonable 

opportunity to win election based on a combination of minority 

and non-minority votes. Congressman Mel Watt was elected 

from old District 12 in 1992, 1994 and 1996 with percentages 

of 70.4%, 65.8% and 71.5%, respectively. (African-American  



  

67a 

997C-27TN OF THE § 5 SUBMISSION COMMENTARY, 

CONTINUED... 

citizens constituted 53% of the voting age population and 

53.5% of the registered voters of old District 12) Consistent 

with the General Assembly’s primary goal to preserve the 

existing partisan balance in Congress, new District 12 contains 

a substantial portion of the core of the urban population of old 
District 12 and a substantial percentage of voters with an 

affinity for Democrat candidates, regardless of their race. 

Those factors, together with the significant African-American 

population in the District (46.67% total population and 43.36% 

voting age population) provide a fair opportunity for incumbent 

Congressman Watt to win election. 

    
   



  

    

68a 

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69a 

AFFIDAVIT OF SENATOR ROY A. COOPER, III (WITHOUT 
ATTACHMENTS) (CD 47) 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF NORTH CAROLINA 

EASTERN DIVISION 

Civil Action No. 4-96-CV-104-BO(3) 

MARTIN CROMARTIE, THOMAS ) 

CHANDLER MUSE, and GLENNES ) 

DODGE WEEKS, 

Plaintiffs, 

JAMES B. HUNT, JR, in his official 

capacity as Governor of the State of North 

Carolina, et al., 

Defendants. 

AFFIDAVIT OF ROY A. COOPER, III 

Roy A. Cooper, III, being first duly sworn deposes and 
says: 

1. I am a native of Nash County, North Carolina. 
After receiving my undergraduate and law degrees from the 
University of North Carolina at Chapel Hill, I returned home to 

      
 



  

EER 

3 
£2 oh 5   

70a 

AFFIDAVIT OF SENATOR COOPER, CONTINUED. .. 

Nash County where I have practiced law since 1982. A copy 

of my resume is attached to this affidavit. 

2. In 1986, 1988 and 1990, I was elected to the 

North Carolina House of Representatives and in 1992, 1 

and 1996, I was elected to the North Carolina Senate. During 

the 1996 Session of the General Assembly, I served as 

Chairman of the Senate Judiciary Committee and the Senate 

Select Committee on Congressional Redistricting. I had not 

previously served on any redistricting committee. 

3. My responsibility as Chairman of the Senate 

Redistricting Committee was to attempt to develop a new 

congressional plan that would cure the constitutional defects in 

the prior plan, and that would have the support of a majority of 

the members of the Senate, which was controlled by the 

Democrats, and the support of a majority of the members of 

House, which was controlled by the Republicans. Under an 

order entered by the three-judge court in Shaw v. Hunt, the new 

plan had to be completed by March 31, 1997, to avoid the 

federal court imposing a plan on the State. The Senate’s efforts 

to meet this responsibility are recorded in the transcripts of the 

meetings of the Senate Committee and of the debates on the 

floor of the Senate. A true and accurate copy of these 

transcripts is included in the North Carolina Section 5 

Submission, 1997 Congressional Redistricting Plan (filed with 

the Affidavit of Gary O. Bartlett) as Attachments 97C-28F- 

4D(1)-(4).  



  

71a 

AFFIDAVIT OF SENATOR COOPER, CONTINUED. .. 

4. Representative W. Edwin McMahan was 

appointed Chairman of the House Redistricting Committee by 

Speaker Brubaker. His responsibilities were essentially 

identical to mine. 

5 Many people doubted that the General 

Assembly would be able to achieve a compromise between the 

Democratic controlled Senate and Republican controlled 

House. Redistricting generally is a task which becomes 

extremely partisan. Working with the leadership of the Senate 

and the House, however, Representative McMahan and I early 

on identified a single path by which a compromise might be 

reached and a new plan adopted. This path was to craft a plan 

which would cure the defects in the old plan and at the same 

time preserve the existing partisan balance in the State’s 

congressional delegation. The Senate Redistricting Committee 

made the first attempt to travel down this path. 

6. On February 20, 1997, after consultation with 

other Senate members, I presented a proposed plan, entitled 

Congressional Plan A (hereinafter Plan A), to the Senate 

Redistricting Committee. This plan was similar to alternative 

plans later proposed by the House Redistricting Committee and 

Representative McMahan and to the plan ultimately enacted by 

the General Assembly. Because Plan A turned out to be the 

prototype for the enacted plan, I will describe the goals the 

Senate leadership and I wanted to achieve in designing this 

plan. In addition, I will describe the process used to draw the 

        
 



  
  

72a 

AFFIDAVIT OF SENATOR COOPER, CONTINUED. .. 

districts in Plan A to achieve those goals. Particular attention 

will be given to Districts 1 and 12. 

7 We had two goals for the plan as a whole. The 

first goal was to cure the constitutional defects in the prior 

by assuring that race was not the predominate factor in 

constructing any district in the plan and to assure that 

traditional redistricting criteria were not subordinated to race. 

To accomplish this first goal, emphasis was placed on the 

following factors in constructing the plan: (1) avoidance of 

division of precincts; (2) avoidance of the division of counties 

when reasonably possible; (3) functional compactness 

(grouping together citizens of like interests and needs); (4) 

avoidance of long narrow corridors connecting concentrations 

of minority citizens; and (5) ease of communication among 

voters and their representatives. A comparison of the 

unconstitutional 1992 plan and Plan A demonstrates that 

goal was accomplished. For example: (1) the unconstitutional 

plan divided 80 precincts while Plan A divided only 2 precincts 

(both of which were divided only to accommodate peculiar 

local circumstances); (2) the unconstitutional plan divided 44 

counties while Plan A divided only 22; (3) the unconstitutional 

plan divided 7 counties among 3 districts while Plan A did not 

divide any county among 3 districts; (4) the unconstitutional 

plan used “cross-overs,” “double cross-overs” and “points of 

contiguity” to create contiguous districts while Plan A used 

none of these devices.  



    

73a 

AFFIDAVIT OF SENATOR COOPER, CONTINUED. .. 

8. Our second goal, and the goal that made it 

possible for the General Assembly to agree upon and enact a 

new plan, was to maintain the existing partisan balance in the 
State’s congressional delegation, 6 Republicans and 6 
Democrats. Based on my discussions with Senate leaders and 
with Representative McMahan, 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. Preserving the existing 
partisan balance, therefore, was the only means by which the 
General Assembly could enact a plan as required by the Court. 
To achieve this pivotal goal, we designed Plan A to preserve 
the partisan core of the existing districts to the extent 
reasonably possible and to avoid pitting incumbents against 
each other. One tool I used to measure the partisan nature of 
districts was election results gathered and analyzed by the 
National Committee for an Effective Congress (NCEC). The 
NCEC information was based on the results of a series of 
elections from 1990 to 1996. 1 also used older election results 
contained in the legislative computer data base. In the end, 

these election results were the principal factor which 
determined the location and configurationof all districts in Plan 
A so that a partisan balance which could pass the General 

Assembly could be achieved. 

9. The two goals we applied in drawing the plan as 
a whole were also applied in drawing Districts 1 and 12. To 
assure that race did not predominate over traditional 

  

  

    
 



  

74a 

AFFIDAVIT OF SENATOR COOPER, CONTINUED. .. 

redistricting criteria, District 12 was drawn so that (1) only 1 
precinct was divided (a precinct in Mecklenburg County that 
was divided in every local districting plan); (2) its length was 
reduced by 46% (from approximately 191 miles to 102 miles) 
so that it became the third shortest district in the state: 3 
number of counties included in the district was reduced from 
10 to 6; (4) all “cross-overs,” “double cross-overs” and “points . 

of contiguity” were eliminated; and (5) it was a functionally 
compact, highly urban district joining together citizens in 
Charlotte and the cities of the Piedmont Urban Triad. To 
assure that race did not predominate over traditional 
redistricting criteria, District 1 was drawn so that (1) no 

precincts were split; (2) the number of counties included in the 
district was reduced from 28 to 20; (3) the number of divided 
counties included in the district was reduced from 18 to 10; (4) 
all “cross-overs,” “double cross-overs” and “points of 
contiguity” were eliminated; (5) the length of the district 
reduced by 24% (from approximately 225 miles to 171 miles); 
and (6) it was a functionally compact district joining together 
citizens in most of the rural and economically depressed 
counties in the northern and central Coastal Plain region of the 

State. 

10. Maintaining Districts 1 and 12 as Democratic 
leaning districts was critical to achieving the pivotal goal of 

protecting the partisan balance in the State’s congressional 

plan. Achieving this goal for Districts 1 and 12, however, 

presented special problems. First, the House insisted that  



  

75a 

AFFIDAVIT OF SENATOR COOPER, CONTINUED. .. 

District 1 had to be drawn in a manner that protected 

Congressman Jones in District 3 and that avoided placing 

Congressman Jones’ residence inside the boundaries of District 

1. Second, District 12 had to be drawn in a manner that 

avoided placing Congressman Burr’s and Coble’s residences 

inside the boundaries of District 12. Third, District 12 had to 

be drawn in a manner that would not include Cabarrus County, 

Congressman Hefner’s home county. Fourth, significant 

portions of Congressman Watt’s and Congresswoman 

Clayton’s former districts had been eliminated because of the 

directive in Shaw v. Hunt, thus lessening their strength as 

incumbents. Finally, we were concerned that Congressman 

Watt might lose some votes because of his race and that 

Congresswoman Clayton almost certainly would lose votes 

because of her race. To help protect District 1 as a Democratic 

leaning district, we included the heavy concentrations of 

Democratic voters in the cities of Rocky Mount, Greenville, 

Goldsboro, Wilson and Kinston, and to help protect District 12 

as a Democratic leaning district, we included the heavy 

concentrations of Democratic voters in Charlotte, Greensboro 

and Winston-Salem in the district. 

11. In developing Congressional Plan A, I also 

became convinced from expert studies before the General 

Assembly and my own knowledge and experience that Section 

2 of the Voting Rights Act likely required the creation of a 

majority-minority district in the central to northern part of the 

Coastal Plain, where the largest concentration of black citizens 

    
 



  

76a 

AFFIDAVIT OF SENATOR COOPER, CONTINUED. .. 

reside. See the attached map entitled, North Carolina Counties 

by Percent of Population Black, which illustrates the 

correlation between the boundaries of District 1 and this 

concentration of black citizens. That belief was balanced with 

my primary goals of curing the defects in our prior plan a 

protecting the existing partisan balance in the Congressional 

delegation in locating and drawing District 1 in Congressional 

Plan A. 

12. On February 20, 1997, 1 presented 

Congressional Plan A to the Senate Redistricting Committee 

and on February 25, 1997, Representative McMahan presented 

his first plan, Congressional Plan A.l1, to the House 

Redistricting Committee. Congressional Plan A and A.1 were 

similar. Based on NCEC election results, however, I was 

concerned that Representative McMahan’s plan unnecessarily 

diminished Democratic performance in Districts 2, 8 and 

Congressmen Hefner’s, Etheridge’s and Watt’s districts. 

13. Over the next several weeks, Representative 

McMahan and I were able to resolve my concerns and the 

concerns of the Senate leadership by negotiation. The 

compromise we reached finally was reflected in a plan entitled 

“97 House/Senate Plan.” This is the plan that was enacted by 

the General Assembly on March 31, 1997. The first plan, 

“Congressional Plan A,” and “97 House/Senate Plan,” the 

enacted plan, are very similar. One of the differencesis that the  



  

77a 

AFFIDAVIT OF SENATOR COOPER, CONTINUED. .. 

first plan had 24 divided counties while the enacted plan 

reduced the number of divided counties to 22. 

14. The “97 House/Senate Plan” is a negotiated 

bipartisan plan which contains districts located and shaped in 

a manner to avoid constitutional problems and to protect the 

existing partisan balance in the State’s Congressional 

delegation. Racial fairness was, of course, considered in the 

development of the plan. Our obligationsto representall of our 

constituents of all races and to comply with the Voting Rights 

Act demanded that racial fairness be considered. The plan 

enacted is racially fair, but race for the sake of race was not the 

dominate or controlling factor in the development or enactment 

of the plan. In drawing initially Congressional Plan A and in 

negotiating the eventually enacted plan, partisan election data, 

not race, was the predominant basis for assigning precincts to 

districts including precincts in Districts 1 and 12. That a large 

proportion of precincts assigned to District 12 have significant 

black populations is simply the result of a strong Democratic 

voting pattern among blacks. Moreover, District 12 is not even 

composed of a majority of black citizens; it is a district in 

which white citizens constitute 52% of the district’s total 

population, 55% of the districts’ voting age population and 

54% of the districts’ registered voters. Simply, District 12 is a 

Democratic island in a largely Republican sea. 

    
 



  

78a 

AFFIDAVIT OF SENATOR COOPER, CONTINUED. .. 

This the 25th day of February, 1998. 

/s/ Roy A. Cooper, 111 

Sworn to and subscribed before me this 

25th day of February, 1998. 

/s/ Beverly Adams 

Notary Public 

My commission expires: 1/24/2000 

 



  

79a 

AFFIDAVIT OF REPRESENTATIVE W. EDWIN MCMAHAN 

(WITHOUT ATTACHMENT) (CD 47) 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF NORTH CAROLINA 

EASTERN DIVISION 

Civil Action No. 4-96-CV-104-BO(3) 

MARTIN CROMARTIE, THOMAS ) 

CHANDLER MUSE, and GLENNES ) 

DODGE WEEKS, 

Plaintiffs, 

JAMES B. HUNT, JR., in his official 

capacity as Governor of the State of North 

Carolina, et al., 

Defendants. 

N
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N
f
 

N
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S
N
 

N
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N
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S
N
 
N
N
 

AFFIDAVIT OF W. EDWIN MCMAHAN 

W. Edwin McMahan, being first duly sworn, deposes 

and says: 

. I am a native of Buncombe County, North 

Carolina and have resided in Charlotte, North Carolina since 

1974. A copy of my resume is attached. 

    
 



  

80a 

AFFIDAVIT OF REPRESENTATIVE MCMAHAN, 

CONTINUED... 

Q. In 1994 and 1996, I was elected to the North 

Carolina House of Representatives. During the 1997 Session of 

the General Assembly, Harold J. Brubaker, Speaker of the 

House, appointed me to serve as Chairman of the Ho 

Congressional Redistricting Committee. 1 had no previous 

involvement in congressional redistricting. 

3. My responsibility as Chairman of the House 

Redistricting Committee was to attempt to develop a new 

congressional plan that would cure the constitutional defects in 

the prior plan, and that would have the support of a majority of 

the members of the Senate, which was controlled by the 

Democrats, and the support of a majority of the members of the 

House, which was controlled by the Republicans. Under an 

order entered by the three-judge court in Shaw v. Hunt, that 

task had to be completed by March 31, 1997, to avoid '® 

federal court imposing a plan on the State. 

A, Senator Roy A. Cooper, III, was appointed 

Chairman of the Senate Redistricting Committee by President 

Pro Tem Marc Basnight. His responsibilities were essentially 

identical to mine. 

5. Many people doubted that the General 

Assembly would be able to achieve a compromise between the 

Democratic controlled Senate and Republican controlled House 

on the most partisan legislative task, redistricting. Working  



  

8la 

AFFIDAVIT OF REPRESENTATIVE MCMAHAN, 

CONTINUED... 

with the leadership of the Senate and the House respectively, 

however, Senator Cooper and I early on identified a single path 

by which a compromise might be reached and a new plan 

adopted. This path was to craft a plan which would cure the 

defects in the old plan and at the same time preserve the 

existing partisan balance (6 Republicans and 6 Democrats) in 

the State’s congressional delegation. 

6. To cure the constitutional defects in the prior 

plan, we had to be sure that traditional redistricting criteria 

were not subordinated to race. To achieve this goal, the 

leadership of the House and I wanted to avoid splitting any 

precincts, to avoid splitting counties when reasonably possible, 

to eliminate all of the “cross-overs,” “double cross-overs” and 

“points of contiguity” from the prior plans, to facilitate 

communication among voters in a district and their 

representatives in Congress, and to place citizens with similar 

needs and interests in the same districts to the extent reasonably 

possible. 

7. To protect the existing partisan balance, the 

leadership of the House and I recognized that we would need 

to protect incumbents and to preserve the cores of the prior 

districts to the extent consistent with our goal of curing the 

defects in the prior plans. 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 

            
   



      
ty 3 

1   

82a 

AFFIDAVIT OF REPRESENTATIVE MCMAHAN, 
CONTINUED. .. 

Helms-Gantt election and the 1988 elections for Lieutenant 

Governor and one of the Court of Appeals seats): I also used 

more recent election results to evaluate the proposed Districts 

2 and 4 -- the districts that we felt were the most competiffly 

from a partisan viewpoint. 

8. On February 20, 1997, Senator Cooper 

presented Congressional Plan A to the Senate Redistricting 

Committee and on February 25, 1997, 1 presented 

Congressional Plan A.1, to the House Redistricting Committee. 

Congressional Plan A and A.1 were similar. 

9. Over the next several weeks Senator Cooper and 

I were able to resolve the few differences between the two 

plans. The compromise we finally reached is reflected in a plan 

entitled “97 House/Senate Plan A.” This is the plan that 

enacted by the General Assembly on March 31, 1997. "It 

achieves the goals the leadership of the House and I had. It 

cures the constitutional defects in the prior plan and it protects 

the existing partisan balance in the State’s Congressional 

delegation. The plan also meets one-person, one-vote 

requirements and, with regard to District 1, meets Voting Act 

requirements. 

10. 97 House/Senate Plan A is not an 

unconstitutional racial gerrymander. 97 House/Senate Plan A 

is a negotiated bipartisan plan which contains districts located  



  

83a 

AFFIDAVIT OF REPRESENTATIVE MCMAHAN, 

CONTINUED. .. 

and shaped in a manner to avoid constitutional problems and to 

protect the existing partisan balance in the State’s 

Congressional delegation. Racial fairness was, of course, 

considered in the development of the plan. Our obligations to 

represent all of our constituents of all races and to comply with 

the Voting Rights Act demanded that racial fairness be . 

considered. The plan enacted is racially fair, but race for the 

sake of race was not the dominate or controlling factor in the 

development or enactment of the plan. The dominate and 

controlling factors in developing the plan were (1) curing the 

constitutional defects in the prior plan and (2) protecting the 

existing partisan balance. Two indications that race was not 

dominate in drawing the plan are the fact that 12 of the 17 

members of the House who are black voted against 97 

House/Senate Plan A and the fact that two black members of 

the House, Representatives Fitch and Michaux, have claimed 

that the plan we enacted is not racially fair to blacks. 

11. The efforts by the House of Representatives to 

meet their responsibilities in enacting a new congressional 

redistricting plan are recorded in the transcripts of the meetings 

of the House Redistricting Committee and the debate on the 

floor of the House. A true copy of these transcriptsis included 

in the North Carolina Section 5 Submission, 1997 

Congressional Redistricting Plan (filed with the Affidavit of 

Gary O. Bartlett) as Attachments 97C-28F-4E(1) through 97C- 

28F-4F(1). 

        
 



  

84a 

AFFIDAVIT OF REPRESENTATIVE MCMAHAN, 

CONTINUED... 

This the 26th day of February, 1998. 

/s/ W. Edwin McMahan 

Sworn to and subscribed before me this 

26th day of February, 1998. 

/s/ Frances S. Carraway 

Notary Public 

My commission expires: 12/20/99 

 



  

85a 

AFFIDAVIT OF DAviD W. PETERSON, PHD (WITHOUT 

ATTACHMENT) (CD 47) 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF NORTH CAROLINA 

EASTERN DIVISION 

Civil Action No. 04-CV-104-BO(3) 

MARTIN CROMARTIE, et al. 

JAMES B. HUNT, JR. in his 

capacity as Governor, et al. 

AFFIDAVIT OF DAVID W. PETERSON, PHD 

DAVID W. PETERSON, PHD, being duly sworn, 

deposes and declares the following: 

Identity 

1. I am president of PRI Associates, Incorporated, a 

company whose chief activity is providing statistical litigation 

support. I am also recently retired as Adjunct Professor in the 

Institute of Statisticsand Decision Sciences at Duke University, 

Durham, North Carolina, where for more than twenty years I 

taught courses in the theory and application of statistics. I am 

co-author of a book entitled Use of Statistics in Equal 

    
 



            

86a 

AFFIDAVIT OF DR. PETERSON, CONTINUED. .. 

Employment Opportunity Litigation, the guest editor of a 

special issue of the journal Law and Contemporary Problems 

devoted to statistical inference in litigation, and the contributor 

of a chapter to each of two other books on the use of statistics 

in litigation. I have testified as an expert statistical witne 

more than thirty cases in federal district courts around the 

nation, including the Eastern District of North Carolina, and 

worked with legal teams as a statistical expert in more than two 

hundred different cases. I have testified for and advised 

defendants as well as plaintiffs. 

Assignment 

2. I am retained in this matter by the defendant to 

examine the statistical relationship between the boundary of 

North Carolina’s Twelfth Congressional District as created by 

the North Carolina General Assembly on March 31, 1997 

the racial and political makeup of the residents in that District 

and the surrounding area. In particular, I am asked to 

determine the extent to which political affiliation might explain 

as well as, or better than, race the boundary of District Twelve. 

Most particularly, I am asked to determine whether, based on 

the statistical pattern of associationrelating the boundary of the 

Twelfth District and the racial and political makeup of nearby 

residents, race appears to have been the predominant factor in 

defining that boundary.  



  

87a 

AFFIDAVIT OF DR. PETERSON, CONTINUED. .. 

Conclusions 

3. Based on an examination of the data available to me, 

I conclude that 

a. There is a substantial correlation between the 

path taken by the boundary of the Twelfth district and the 

political preferences of the residents of the precincts touching 

that boundary, the tendency being to include precincts within 

the District which have relatively high Democratic party 

representation. 

b. There is also a substantial correlation between 

the path taken by the boundary of the Twelfth District and the 

racial composition of the residents of the precincts touching 

that boundary, the tendency being to include precincts within 

the District which have relatively high black representation. 

c. Because the correlation found in a. is as large 

or larger than that found in b., it follows that the path taken by 

the boundary of the Twelfth District can be attributed to 

political considerations with at least as much statistical 

certainty as it can be attributed to racial considerations. In 

other words, there is no statistical indication that race was the 

predominant factor determining the border of the Twelfth 

District; there is at least one other explanation that fits the data 

as well as or better than race, and that explanation is political 

identification. 

    
 



L
t
 

  

88a 

AFFIDAVIT OF DR. PETERSON, CONTINUED. .. 

d. There is a substantial correlation, precinct by 

precinct, between the fraction of a precinct’s residents who are 

black and the fraction who favor the Democratic political party 

over the Republican. 

» 
e. Among the few border precincts where the 

above correlation does not exist, the boundary of the Twelfth 

District appears to have been drawn at least as much with the 

purpose of creating a Democratic majority within the District 

as with creating a black majority. 

f. I also determined that blacks constitute less 

than half of the residents of District Twelve, and that people 

who identify more strongly with the Democratic Party than the 

Republican Party constitute more than half the residents of that 

District. This lends further credence to conclusions c. and e., 

above. Ww 

Underlying Data 

4. The information on which my conclusions rest 

consists primarily of the computerized data base used by the 

North Carolina Legislature to draw the boundaries of districts 

under challenge in this lawsuit. This file permitted me to 

determine, precinct by precinct, 

a. the number of residents therein by racial 

category, according to the 1990 US census,  



  

89a 

AFFIDAVIT OF DR. PETERSON, CONTINUED. .. 

b. the number of voting age residents therein by 

racial category, according to the 1990 US census, 

c. the number of registered voters therein, by 

racial category, according to local voter registration records, 

d. the number of people who voted for each major 

candidate in the 1988 Court of Appeals election, 

€. the number of people who voted for each major 

candidate in the 1988 Lieutenant Governor election, 

f. the number of people who voted for each major 

candidate in the 1990 Helms - Gantt US Senatorial election, 

and 

g. the number of registered voters by political 

affiliation. 

[ also relied on numerous maps of North Carolina supplied to 

me by the State, showing the boundaries of the Districts and the 

identities of the precincts bordering them. 

  

1 
In 69 of the State’s 100 counties, these counts can be inferred for 

each precinct within the county. For the remaining 31 counties, precinct 

level informationis not available so we used Minor Civil Divisions instead. 
Of the nine counties touching or included in the Twelfth District, only 

Davie County is among the 31 counties not having precinct level 

information. 

  

  

    
 



  

    

90a 

AFFIDAVIT OF DR. PETERSON, CONTINUED. .. 

Analysis: Correlation of Race with Party Affiliation 

5. Using the data file described above, I calculated for 

each of the North Carolina precincts the following seven 

percentages: 

a. the percentage of the resident population who 

are black,’ 

b. the percentage of the voting age population 

who are black, 

c. the percentage of the registered voters who are 

black, 

d. the percentage of the voters who voted for the 

Democratic candidate in the 1988 Court of Appeals clectiogy 

e. the percentage of the voters who voted for the 

Democratic candidate in the 1988 Lieutenant Governor 

election, 

  

2 Nearly all of the racial minority people living in the vicinity of the 
Twelfth District are black. I have repeated all of the analyses described in 

this affidavit using all minorities in lieu of blacks, and the results are 

identical in all material respects.  



  

91a 

AFFIDAVIT OF DR. PETERSON, CONTINUED. .. 

f. the percentage of the voters who voted for the 

Democratic candidate in the 1990 Helms - Gantt US Senate 

election, and 

g. the percentage of the voters who are registered 

as Democrats.’ 

6. I then plotted each of the State’s 2217 precincts on 

a graph, based on its registered voter black percentage (5c 

above) and its registered voter Democratic percentage (5g 

above). The result is Chart 1. This chart, which looks like an 

inverted tornado, displays a strong correlation between racial 

composition and party preference. It shows that in precincts 

with high black representation, there is a correspondingly high 

tendency for voters to favor the Democratic Party. In precincts 

with low black representation, there is much more variation in 

party preference, and the fraction of registered voters favoring 

Democrats is substantially lower. 

7. Virtually the same picture emerges when one 

includes in Chart 1 just the six counties through which District 

Twelve runs; and the picture is again much the same when one 

  

3 In calculating each of these four party affiliation percentages, I 
included only people who were identified with one of the two major parties. 

Hence, a precinct that by one of these measures is “42% Democratic,” it is 
in the same sense “58% Republican.” 

    
 



  

92a 

AFFIDAVIT OF DR. PETERSON, CONTINUED. .. 

includes just the nine counties touched by the Twelfth District. 

This collection of charts is the basis for my conclusion that 

there is a substantial correlation between the black 

representation within a precinct and the proportion of its 

residents who favor the Democratic Party. 3 

Analysis: Correlation of Boundary with Race and Political 

Party 

8. The basic geographic unit used by the legislature in 

constructing districts is the precinct. (There are some instances 

in which county boundaries are used, but even these are also 

precinct boundaries.) To examine the correlation of the 

Twelfth District boundary with the race of people living along 

its path, I identified each of the precincts that touch the 

boundary, and divided the boundary into segments each of 

which separates one precinct inside the District from the 

just outside. There are 234 such segments, each of wi¥ 

reflects a decision made by the legislature about the path taken 

by the Twelfth District border.’ For each segment, I then 

determined whether the representation of blacks is greater in 

  

* Ihave created analogous charts using the other measures of racial 

composition and party affiliation defined in paragraph 5, and they too do 

not differ materially from Chart 1. 

> Among the border precincts, three have no registered voters. 

These precincts touch five boundary segments, which are necessarily 

excluded from correlation calculations based on measures 5c through 5g.  



  

93a 

AFFIDAVIT OF DR. PETERSON, CONTINUED. .. 

the inside precinct than it is in the outside precinct, using each 

of the three measures 5a, 5b and 5c. 

9. If, for each segment, the representation of blacks 

were greater in the inside precinct than the outside precinct, 

then the correlation between the path taken by the border and 

the racial makeup of the precincts around which it travels 

would be perfect. On the other hand, were only half of the 

segments of this type, there would be no correlation at all 

between the path taken by the border and the racial composition 

of the precincts it separates. The actual results fall about 

halfway between these extremes, as follows: 

Black Population (5a) 79.1% 

Black Voting Age Population (5b) 79.9% 

Black Registered Voters (5¢) 79.5% 

10. It is evident from these figures that there is some 

positive correlation between the path taken by the border of the 

Twelfth District and the racial composition of the local 

residents. It is also clear that the correlation is not perfect. 

  

6 If none (0%) of the segments had this property, there would once 
again be perfect correlation between the boundary line and the racial 

makeup along its path, but in the sense that the boundary tends to exclude 

blacks from the Twelfth District. 

    
 



  

94a 

AFFIDAVIT OF DR. PETERSON, CONTINUED. .. 

11. Similarly, I noted for each of the 234 segments 

constituting the border of the Twelfth District whether the 

representation of Democrats was greater in the inside precinct 

than in the outside precinct. If 100% of the segments had this 

property, the border would correlate perfectly with pa 

preference, while if only half had the property, there would be 

no correlation at all. The actual results, for each of the four 

party preference measures, are midway between these 

extremes, as follows: 

1988 Court of Appeals Election (5d) 80.8% 

1988 Lt Governor Election (5¢) 78.6% 

1990 Helms - Gantt Election (5f) 80.8% 

Registered Voters (5g) 84.3% 

12. Evidently, there is some positive correlation between 

the path taken by the border of the Twelfth District and 

party preferences of the local residents, though the correlation 

is not perfect. 

13. Comparing the numerical results from paragraphs 9 

and 11 above, it is apparent that there is at least as much 

correlation between the border of the Twelfth District and the 

party preferences of the local residents as there is between the 

border and the racial composition of those residents. That is, 

the statistical evidence supporting party affiliation as an 

important determinantof the boundary is at least as strong, and 

marginally stronger, than the statistical evidence supporting  



  

95a 

AFFIDAVIT OF DR. PETERSON, CONTINUED. .. 

race as an important determinant of the boundary of the 

Twelfth District. 

Analysis: Divergent Boundary Segments 

14. As might be expected from the correlation 

(paragraphs 6 and 7 above) between party affiliation and racial 

composition within precincts, there are many District Twelve 

border segments in which not only is the representation of 

blacks higher in the inside precinct than in the outside, so too 

is the representation of people favoring the Democratic Party. 

Such segments (which I call “convergent”) support equally the 

proposition that 

a. themotivationfor the District Twelve boundary 

was at least in part to maximize black representation within the 

District (the “Race Hypothesis”), 

and the proposition that 

b. the motivation was at least in part the 

maximization of Democratic Party affiliation (the “Political 

Hypothesis”). 

Clearly, convergent segments do not help us determine which 

of these two propositions is more likely. 

R
S
 

  
   



yen
 l
ti
ng
 

  

96a 

AFFIDAVIT OF DR. PETERSON, CONTINUED. .. 

15. There is a second type of convergent segment, 

namely a border segment for which the representation of blacks 

is greater in the outside precinct than in the inside and for 

which the representation of Democrats is also greater outside 

than inside. For the same reason noted above, this type 

convergent segment also tells us nothing about which of the 

two aforementioned propositions is the more likely. 

16. Only the boundary segments which are divergent, 

i.e., those for which 

a. the representation of blacks on the inside is 

greater than that on the outside and for which the representation 

of Democrats is greater on the outside than on the inside 

(“Type R” boundary segments), 

or, alternatively, for which % 

b. the representation of blacks on the outside is 

greater and the representation of Democrats on the inside is 

greater (“Type P” boundary segments), 

can indicate which of the above two propositions is more 

likely. 

17. Evidently, a Type R divergent boundary segment 

favors the Race Hypothesis over the Political Hypothesis, while  



  

97a 

AFFIDAVIT OF DR. PETERSON, CONTINUED. .. 

a Type P segment favors the Political Hypothesis over the Race 

Hypothesis. 

18. Depending on the measures used to determine racial 

representation and Democratic party preference, a given 

boundary segment may or may not be divergent. I have 

examined all possible combinations of the three racial measures 

(5a, 5b and 5c) and the four party preference measures (5d, Se, 

5f and 5g), resulting in twelve different ways to determine 

whether a boundary segment is divergent. 

For example, using the two measures (5c and 5g) 

based on registered voters, there are 41 divergent 

boundary segments. Of these, 26 are of Type P, 

namely ones for which the representation of blacks 

is greater on the outside than on the inside, yet the 

representation of Democrats is greater on the inside 

than on the outside. The remaining 15 divergent 

segments are of Type R: the representation of blacks 

is greater on the inside than on the outside, yet the 

representation of Democrats is greater on the 

outside. Evidently, the balance here tips in favor of 

the Political Hypothesis by a score of 26 divergent 

segments to 15: it is more likely that of the two 

propositions, party affiliation was the driving force 

rather than race. 

    
 



  

98a 

AFFIDAVIT OF DR. PETERSON, CONTINUED. .. 

19. Of the total of twelve such analyses, 

a. sevenresultin a pattern of divergent boundary 

segments favoring the Political Hypothesis over the Race 

Hypothesis, in the sense just described, 

b. three result in a pattern favoring the Race 

Hypothesis over the Political Hypothesis, and 

c. two resultin a pattern equally strong in support 

of both hypotheses. 

It is clear from these analyses that the statistical support for the 

Political Hypothesis is at least as strong as that for the Race 

Hypothesis, and, indeed, somewhat stronger. 

20. As indicated above, some boundary segments 

divergent when judged by one pair of measures of race ® 

party preference, but not divergent when judged by another. 

There are, however, ten boundary segments that are divergent 

by every one of the twelve combinations of race and party 

affiliation measures. Of these ten unequivocally divergent 

boundary segments, 

a. six support the Political Hypothesis, while 

b. four support the Race Hypothesis.  



  

99a 

AFFIDAVIT OF DR. PETERSON, CONTINUED. .. 

Again, the statistical support for the Political Hypothesis is at 

least as strong as that for the Race Hypothesis, and indeed, 

slightly stronger. 

21. Finally, the representation of blacks in the Twelfth 

District by each of the three measures used herein is: 

Black Population (5a) 47% 

Black Voting Age Population (5b) 43% 

Black Registered Voters (5¢) 46% 

By none of these measures do blacks constitute a majority of 

the people in the Twelfth District. Similarly, the representation 

of Democrats in the Twelfth District by each of the four 

measures used herein is: 

1988 Court of Appeals Election (5d) 62% 

1988 Lt Governor Election (5¢) 62% 

1990 Helms - Gantt Election (5f) 66% 

Registered Voters (5g) 75% 

By every one of these measures, Democrats constitute a 

majority of the people in the Twelfth District. These figures 

support the proposition that creation of a Democratic majority 

in District Twelve was a more important consideration in its 

construction than was the creation of a black majority. 

    
 



  

100a 

AFFIDAVIT OF DR. PETERSON, CONTINUED. .. 

Further the Affiant Saith Naught. 

/s/ David W. Peterson, PhD 

Subscribed and sworn to before me 

this 27th day of February, 1998. 

/s/ Peter R. Shalak 

Notary Public 

My Commission Expires: 1-16-2002 

 



  

101a 

AFFIDAVIT OF DR. ALFRED W. STUART (WITHOUT 
ATTACHMENTS) (CD 47) 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF NORTH CAROLINA 

EASTERN DIVISION 

Civil Action No. 4-96-CV-104-BO(3) 

MARTIN CROMARTIE, THOMAS ) 

CHANDLER MUSE, and GLENNES ) 
DODGE WEEKS, ) 

Plaintiffs, 

capacity as Governor of the State of North 

Carolina, et al., 

Defendants. 

) 

) 
) 

) 
JAMES B. HUNT, JR., in his official ) 

) 

) 

) 

AFFIDAVIT OF DR. ALFRED W. STUART 

Alfred W. Stuart, being first duly sworn, deposes and 

says: 

]. I am a Professor of Geography at the University 
of North Carolina at Charlotte, where I have been on the faculty 

  

  

  
 



  
  

102a 

AFFIDAVIT OF DR. STUART, CONTINUED. .. 

since 1969. For 17 of those years I served as Chairman of the 

Department of Geography and Earth Sciences. I earned a BS 

degree from the University of South Carolina, an MS from 

Emory University and my PhD from Ohio State University. 

2 My professional work has focused on economic 

and demographic change in the Charlotte urban region, North 

Carolina and the rest of the South. This work has found 

primary expression in a number of atlas-style publications. 

These publications were a collaborative effort with a number of 

colleagues in which patterns and trends have been articulated 

in a substantive text and illustrated with appropriate maps, 

charts and photographs. The atlas for the state of North 

Carolina was published by the University of North Carolina 

Press in 1975. It received wide critical acclaim and served as 

a model for other regional atlases that were published in 

Michigan, Oregon, Georgia and other states. A revision of '® 

book is now underway and it is expected to be published by t 

UNC Press in 1999. Other atlas-style books which I have 

helped edit and author include a series on the urban regions of 

North Carolina and a 1989 work, Land of the South, that 

portrayed growth and change in the major sub-regions of the 

South. All of these books were prepared in such a way as to 

make the information accessible to lay readers, as a means of 

helping them make more informed decisions about their state 

and communities. A copy of my curriculum vitae is attached.  



  

103a 

AFFIDAVIT OF DR. STUART, CONTINUED. .. 

3. I was asked by representatives of the Attorney 

General’s Office to replicate for the 1997 congressional plan an 

analysis I prepared in the Shaw litigation which compared the 

driving times and distances of the twelve congressional districts 

in the 1992 plan. My analysis is contained in this affidavit. 

4. The primary means that is used by persons 

moving around within a congressional district in North 

Carolina is the personal automobile. For this reason, one of the 

more significant measures of intra-district interaction and 

information exchange is the degree of highway accessibility 

from one end of a district to another. For purposes of this 

analysis, average driving time also was computed since it is 

probably a greater concern for most people than mileage. 

5. Access by highway is a function of both the size 

and shape of a district but especially of the nature of the 

highway network that covers it. To illustrate this point, points 

were selected within each district that are identifiable on a 

highway map and which approximate maximum distances 

across the district. In several cases (Districts 1, 3 and 7) where 

the distance appears to be about the same length in several 

directions, several pairs of points were selected. These pairs of 

points were entered into a sophisticated computer model that 

contained a data base of the entire highway network for North 

Carolina and also information on the characteristics of the 

roads (number of lanes, etc.) and speed limits. A TransCAD 

(version 2.1) software designed especially for highway studies 

         



  

104a 

AFFIDAVIT OF DR. STUART, CONTINUED. .. 

was used to make the analysis. The computer model chose the 

route or routes that represented the minimum travel time 

between the selected end points. It also provided the mileage 

of each selected route. These travel times and distances are 

summarized in Table 1 in the Appendix. Maps included in thf) 

Appendix outline each of the routes. 

6. The travel times that were calculated by the 

computer program reflect average driving times in an 

automobile. No allowances were made for possible rush hour 

traffic congestion or for stopping en route. Such factors as 

driving at speeds other than the legal speed limits would 

modify the actual driving times. The point of these calculated 

times was not to estimate actual times but to make estimates for 

each route on the same basis in order to provide objective 

figures for comparative purposes. Small differences in times 

should not be taken too seriously but greater differences gE 

meaningful. 

7. The shortesttravel time and distance (1.26 hours 

and 64 miles) for all of the 1997 congressional districts was 

that calculated for the relatively compact District 9, the route 

for which follows primarily I-85 and some of U.S. 74. In 

addition, Districts 4, 6 and 12 also have travel times of less 

than two hours and distances of less than 100 miles. In 

contrast, District 3, on each of two routes, has the longest paths 

because of the size of the district and the nature of the road 

network. The routes begin on the elongated Outer Banks and  



  

105a 

AFFIDAVIT OF DR. STUART, CONTINUED. .. 

go either west or south. Representative of the best highways 

through the districtis U.S. 17, which is not an Interstate. Both 

routes are estimated to take over four hours and are close to or 

more than 200 miles long. The other longest travel times and 

routes are in Districts 1 and 11. The times and distances for 

Districts 1, 3 and 11 reflect the relative geographic size of the 

districts which results from the dispersion of the population in 

these more sparsely populated areas of the state. 

8. Of all twelve congressional districts, District 12 

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

distance (95 miles) between its farthest points. For purposes of 

intra-districtinteraction and information exchange, District 12 

is a highly accessible district by highway and is therefore 

compact in the sense of travel time and distance for a 

congressional representative. 

9, In the Shaw litigation, I submitted a report 

analyzing the time and travel distances for the districts in the 

1992 congressional plan using the same computer model. The 

times and distances are summarized in Table 2 in the 

Appendix. Also included in the Appendix is a map of these 

routes. 

10. ~~ The average travel time for the 1992 districts 

was 2.65 hours, ranging from a low of 1.34 hours (District 10) 

to a high of 4.77 hours (District 1). The average distance for 

the 1992 districts was 141.1 miles, ranging from a low of 57.1 

    
 



  

106a 

AFFIDAVIT OF DR. STUART, CONTINUED. .. 

miles (District 10) to a high of 271 miles (District 1). District 

12, although only slightly above average for time and distance 

(2.97 hours and 162.4 miles) ranked in the bottom one-third for 

time and distance. 

* 
11. The average travel times and distances for the 

1997 congressional districts do not differ significantly from the 

1992 districts: the average travel time remains at 2.65 hours, 

while the average distance is slightly shorter at 130.6 miles. 

However, the travel times for District 12 have improved 

dramatically, moving to a number three ranking in terms of 

shortest time and distance. 

12. At the request of the Attorney General's office, 

I did an analysis of the population growth in North Carolina’s 

congressional districts. A true copy of that report is attached 

hereto and incorporated by reference. @ 

This the 23rd day of February, 1998. 

/s/ Alfred W. Stuart, PhD 

Sworn to and subscribed before me 

this 23rd day of February, 1998. 

/s/ Frances S. Carraway 

Notary Public 

My commission expires: 12-20-99  



  

107a 

“AN EVALUATION OF NORTH CAROLINA’S 1998 

CONGRESSIONAL DISTRICT” BY PROFESSOR GERALD R. 

WEBSTER (WITHOUT MAPS) (CD 47) 

An Evaluation of North Carolina’s 

1998 Congressional Districts 

Professor Gerald R. Webster 

Department of Geography 

University of Alabama 

Tuscaloosa, AL 35487-0322 

Phone (205) 348-1532 

Fax (205) 348-2278 

GWebster@ualvm.ua.edu 

I am a Professor of Geography at the University of 

Alabama, Tuscaloosa, Alabama, where I have been employed 

for the past nine years. My formal education includes a BA 

(1975) in political science from the University of Colorado- 

Denver, a MS (1980) in geography from Western Washington 

University, and a Ph.D. (1984) in geography from the 

University of Kentucky. My primary research and teaching 

emphases are in political geography, and range in topical focus 

from the local to international scales. My research has most 

emphasized topics in electoral geography including the issue of 

redistricting. I have authored over 50 publications including 

more than 30 in refereed journals on varied topics including 

redistricting. At present I am the co-editor or co-author of three 

forthcoming books on topics in political geography including 

one on redistricting to be published by Syracuse University 

Press. Between 1995 and 1997 I served as the Chair of the 

       



    

108a 

DR. WEBSTER’S REPORT, CONTINUED. .. 

Political Geography Specialty Group, Association of American 

Geographers, the largest organization of political geographers 

in the world. My Vita accompanies this report. 

On December 9, 1997, I met with representatives of ® 

North Carolina Attorney General’s Office and was asked to 

evaluate the state’s twelve congressional districts intended for 

use in the 1998 elections (hereafter referred to as the “1998 

districts”). For this purpose I was provided maps of the 1992- 

1996 (hereafter referred to as the “1992 districts”) and 1998 

districts, and access to data from Election Data Services, one of 

the country’s most prominent providers of data on elections and 

districts. From Election Data Services I secured the majority 

of the compactness indicators used in this report, and shape 

files of the congressional districts in selected states including 

North Carolina. 

The purpose of this report is to evaluate the twelve 

congressional districts now in place for the 1998 elections 

(Figure 1). Where pertinent, these districts are compared to the 

1992 districts (Figure 2). This report uses a set of traditional 

districting criteria on which to base its evaluation. Basic 

background reading on these criteria is found in the published 

work of Professor Richard Morrill (Department of Geography, 

University of Washington), and Professor Bernard Grofman 

(School of Social Sciences, University of California, Irvine).  



  

109a 

DR. WEBSTER’S REPORT, CONTINUED. .. 

Professor Morrill is a political geographer and the 

foremost geographic authority on districting procedures in the 

United States today. His 1981 monograph, Political 

Redistricting and Geographic Theory, includes a chapter 

entitled “Criteria for Redistricting” which is cited in this report. 

Professor Grofman is a political scientist and is among the most 

recognized authorities from that discipline on redistricting 

issues. Professor Grofman’s “Criteria for Districting: A Social 

Science Perspective” published in the UCLA Law Review in 

1985 is perhaps the most exhaustive evaluation of redistricting 

criteria published in the past twenty-five years, (Additional 

sources detailing districting criteria include Dixon 1982; 

Morrill 1982, 1987 and 1994; Cain 1984; Butler and Cain 

1992; Grofman et al., 1992; Grofman 1993; Pildes and Niemi 

1993). 

REDISTRICTING CRITERIA 

What follows is an evaluation of North Carolina’s 

twelve congressional districts on the basis of the following 

criteria: equal population, contiguity,compactness, the integrity 

of local government boundaries, and continuity of 

representation. It should be noted at the outset that it is 

virtually impossible for a redistricting plan to simultaneously 

satisfy all criteria perfectly or completely. 

In some cases, the real-world application of two criteria 

may contradict one another. For example, published work on 

the districting process suggests that the number of county 

         



  
    

    

   
110a 

DR. WEBSTER’S REPORT, CONTINUED. .. 

divisions should be limited where possible. But it is nearly 

always impossible to have no divided counties in the 

redistricting process due to the constitutionally-based 

requirement that districts have little or no difference in their 

populations. Thus, any county with a population above @) 

ideal population will of necessity be divided among two or 

more districts. And it is frequently necessary or appropriate to 

divide counties with smaller populations between two or more 

districts to achieve compliance with the equality of population 

criterion or another districting goal. In short, it is indeed rare 

for a state not to divide some, if not many, counties. At present 

all southern comparison states include multiple county 

divisions on their congressional district maps. Twenty-six 

(38.8%) of Florida’s 67 counties, for example, are divided 

between multiple congressional districts (Duncan and 

Lawrence 1997: 298-299). 

In other cases, data limitations and real-world 

constraints limit the degree to which one or more criteria may 

be simultaneously satisfied. For example, a state with an 

irregular coastline will find it nearly impossible to create highly 

compact districts in that area of the state. A state which uses 

county boundaries which follow the irregular courses of rivers 

will find it difficult if not impossible to create highly compact 

districts. The pattern of population distribution can also 

severely limit the degree of resulting compactness. Hence, a 

state with an uneven population density will likely find it 

difficult to create highly compact districts while achieving



  

111a 

DR. WEBSTER’S REPORT, CONTINUED. .. 

equality of population between districts. An evaluation of 

districting plans must therefore consider the existing map in 

light of state or local conditions, and not solely on the basis of 

theoretical possibilities. 

Some explanation of each criterion’s purpose precedes 

the North Carolina specific evaluation. All Tables and Figures - 

referenced in this evaluation are found sequentially at the rear 

of the report following the references. An Appendix follows 

the referenced Tables and Figures which includes maps 

depicting each of North Carolina’s twelve 1992 and 1998 

congressional districts. 

1) Equality of Population. The “equality of population” 

criterion stems from the U.S. Constitution and it therefore must 

carry substantial, if not preeminent, weight in the development 

of all redistricting plans. Since the 1960s the legally 

permissible variations between district populations have 

declined substantially. = Concomitant improvements in 

technology and the detail of the data provided by the U.S. 

census have allowed ever-greater adherence to the principal of 

one-person-one-vote. 

Population equality between districts may be measured 

by multiple indicators. The “total deviation” (also referred to 

as the overall range) is defined as the population difference 

between the smallest and largest districts (see Grofman 1985: 

175, for the total deviations of districts existing in 1983, and 

       



    

112a 

DR. WEBSTER’S REPORT, CONTINUED. .. 

Rayburn and Leib 1994: 23, for the total deviations existing in 

1993). The “maximum deviation” is defined as the largest 

absolute (+ or -) population deviation among a jurisdiction’s 

districts relative to the optimal population (total 

population/number of seats) to be allocated to each distrifff) 

Also pertinent is the mean or average of all district deviations 

from the ideal population. These measures may be expressed 

in terms of absolute numbers and percents. 

The maximum permissible population deviation of 

districting plans depends on their geographic scale - whether, 

for example, the districts are used to elect members of the U.S. 

House of Representatives, a state legislature, or a city council. 

Due to the limits of both the census of population data and 

geography, maximum allowable deviations are generally 

greater the more local the jurisdiction being evaluated. But 

congressional districts are expected to have total SE, 

less than 1% (Morrill 1981; Grofman 1985; Grofman et al., 

1992). As determined by Rayburn and Leib (1994: 23), the 

districting plans in all states in 1993 were in compliance with 

this criterion with the largest total deviation determined for 

Georgia at 0.94%. 

The ideal population for each congressional district in 

North Carolina is 552,386 (1990 state population of 6,628,637 

/ 12 districts = 552,386.42) (Table 1). The average absolute (+ 

or -) deviation of North Carolina’s twelve congressional 

districts is 361 individuals, or 0.065% of the ideal population  



  

113a 

DR. WEBSTER’S REPORT, CONTINUED. .. 

to be allocated to each district. Among the districts, District 7 

has the smallest deviation at a mere 4 individuals (0.001%), 

and District 10 the largest at 947 individuals (0.171%). District 

10’s deviation thus constitutes the Maximum Deviation for the 

state’s congressional districts. The Total Deviation for the 

twelve districts is 0.270%. 

In terms of the population equality criterion, North 

Carolina’s present congressional districts are well within 

accepted guidelines. Their level of population equality is 

therefore evaluated favorably on this criterion. But it should be 

noted that 1990 census of population data is now eight years 

old. Based upon population projections by the North Carolina 

Office of State Planning, the state’s 1997 population was nearly - 

12 percent greater than enumerated in 1990. That office further 

projects the next Census, to be undertaken in a little over two 

years, will enumerate 7.7 million North Carolinians, or 16.4 

percent more individualsresiding in the state than were counted 

in 1990. Thus, while the constitutional purpose of the census 

of population is to aid the reapportionment and redistricting 

process and the 1990 census should be used for such 

comparisons, malapportionment is clearly a result of using 

eight year old data, It is therefore true that any subsequent 

delineation of North Carolina’s 12 congressional districts prior 

to the 2000 census will be hampered in achieving compliance 

with the preeminent criterion of the districting process, that of 

equal population between districts. 

    
 



  

114a 

DR. WEBSTER’S REPORT, CONTINUED. .. 

2) Contiguity. 

There is no Constitutional obligation for congressional 

districts to be contiguous, though some states include such a 

requirement in their constitutions variously pertaining K 

legislative or congressional districts (Grofman 1985). The state 

of North Carolina does not formally stipulate that congressional 

districts be contiguous. A district is typically defined as 

contiguous if every part of the district is accessible to all other 

parts without traveling into a second district. This requirement 

has rarely generated controversy in the past. When controversy 

has emerged, the focus of contention has generally pertained to 

areas dissected by water features and whether bridge 

connections are sufficient to constitute contiguity (see Grofman 

1985: 84). 

All of North Carolina’s 1998 districts are contiguo 

and are thus evaluated favorably on this criterion. Second, on 

this criterion the present plan compares very favorably with the 

state’s 1992 congressional districts which generated 

controversy pertaining to the contiguity of the 6th and 12th 

districts (Grofman 1993: 1261). The practical contiguity of 

Districts 1, 2, 5 and 10 was also substantially improved. For 

example, the proruption of District 2 into District 1 in Halifax 

County in the 1992 plan no longer exists. In the 1998 plan the 

mutual boundary of Districts 1 and 2 is the Halifax County- 

Nash County boundary. A second example pertains to the no 

longer existing proruption of District 5 into District 10. The  



  

115a 

DR. WEBSTER’S REPORT, CONTINUED. .. 

boundary between these two districts now entirely follows 

county boundaries. 

3) The Allocation of Local Government or Electoral Units. 

The non-division of local political units in their 

allocation to districts has traditionally been viewed as a 

legitimate though secondary goal of the districting process. 

Counties, for example, may constitute political systems in and 

of themselves. But it is also true that the equal population 

criterion carries substantially greater weight in all evaluations 

of districting plans than efforts to limit county subdivisions. 

Thus, any county which has a population above the ideal 

population per district will almost certainly be divided into two 

or more districts in a system which employs single-member 

districts. 

At times it may be either appropriate and/or necessary 

to subdivide counties with lesser numbers of residents to 

achieve compliance with the equal population or another 

districting goal. For example, it may well be appropriate to 

divide the urban environs of a county from its dominantly rural 

hinterland given the widely differing circumstances oftentimes 

found in these two settings. Such divisions can be beneficial to 

the quality of representation provided to the constituents in a 

district because Representativesdo not have to simultaneously 

focus their attention on both urban (e.g., mass transit and 

crime) and rural needs (e.g., agriculture and basic highways). 

        
 



    

116a 

DR. WEBSTER’S REPORT, CONTINUED. .. 

In short, it is nearly always technically impossible in any state 

with two or more districts for all counties to be allocated in 

their entirety to congressional districts and meet the goals of 

other criteria. And there are numerous practical reasons for 

dividing counties as well. Hence, county divisions ® 

commonplace and all southeastern state comparators include 

multiple county divisions (Webster 1995; Duncan and 

Lawrence 1997). 

The 1992 congressional districts in North Carolina 

divided 44 off [sic] the state’s 100 counties (Webster 1995). 

The 1998 congressional districts reduce this number to 22, a 

50% percent decline in the number of county divisions. This 

level of county divisions compares favorably with Florida, a 

state having undergone similar litigation, which divides 26 of 

its 67 counties, or nearly 40%. Thus, from the perspective of 

county divisions, the 1998 districts are superior to the 1 

districts on this criterion. Secondly, using Florida for the 

comparator, North Carolina’s proportion of divided counties is 

judged acceptable. 

The building block units used to delineate congressional 

districts differ between states. While some states rely on 

census units such as blocks or tracts, others use voting districts 

or precincts (Raburn and Leib 1994: 23). For the 1990 census 

the Bureau of the Census requested that all states participate in 

an effort to geographically mesh voting districts with other 

units of census geography. Approximately three-quartersof the  



  

117a 

DR. WEBSTER’S REPORT, CONTINUED. .. 

states fully participated, with the remainder participating in 

varying degrees. In North Carolina seventy-nine of the state’s 

100 counties fully participated and are subdivided by voting 

precincts which follow the boundaries of other units of census 

geography such as blocks or tracts (see Rayburn and Leib 

1994). 

It should be a goal of districting plans to avoid 

subdividing voting precincts wherever possible unless local 

circumstances make such divisions appropriate. If voting 

precincts are subdivided by congressional district boundaries, 

additional polling units or ballot forms may be required. Such 

changes can lead to voter confusion and frustration. 

As of October 1, 1996, there were a total of 2,531 

election precincts in the state of North Carolina. The 1992 

districts divided 80 precincts. The 1998 districts reduce this 

number to only 2. Thus, the 1998 districts are vastly superior 

to the 1992 districts in their very minimal number of voter 

precinct divisions. Secondly, it has been conveyed by the 

Attorney General’s Office to the author that the basis for the 2 

precinct divisions pertained to local circumstances. This being 

true, the 1998 congressional district map must be judged very 

favorably in terms of its use of precincts as district building 

blocks. 

Of the 31 counties which do not include census voter 

precincts, only one (Beaufort County) is not allocated to a 1998 

  

  

   



  

  

  

118a 

DR. WEBSTER’S REPORT, CONTINUED. .. 

   

  

   

   
    

  

   
   

   
   

    

   
    

   

   

    

   

  

   

congressional district in its entirety. This division employed 

township boundaries which are vastly superior to the use of 

census blocks or tracts which may have little significance to 

human patterns of interaction or governance. 

ho 
4) Geographic Compactness. 

Unlike the equality of population criterion, the 

geographic compactness criterion has no foundation in the U.S. 

Constitution. But it has long been viewed as a legitimate 

criterion for evaluating redistricting plans, and is included as a 

goal in approximately half of all state constitutions. The state 

of North Carolina is not among those states legally requiring 

that the members of legislative bodies be elected from compact 

districts (Grofman 1985). But given recent Supreme Court 

decisions, the compactness criterion has received renewed 

attention. Ww 

There is substantial legal and academic disagreement 

over the value of mandating districts be compact. First, 

requiring compact districts does not guard against the political 

or racial manipulation of electoral space. The geographic 

resolution and quality of the data now provided by the census 

in conjunction with the increasing sophistication of computer 

technology may allow compact districts to be delineated which 

are also directly discriminatory to a population group. Thus, 

highly compact districts may be intentionally detrimental to a 

population group (see both Morrill 1981, and Grofman 1985).



  

119a 

DR. WEBSTER’S REPORT, CONTINUED. .. 

Second, in the real-world perfectly compact districts are 

an impossibility. Most compactness indices assume that an 

optimal district will be a perfect circle, the most compact of 

geometric shapes. But if circles were employed to subdivide 

the space of a jurisdiction, some of the jurisdiction’s area 

would not be allocated to districts, but be left in the gaps 

between circles. Thus, circular districts are an unrealistic 

abstraction without direct application to real-world 

circumstances. 

Third, the building blocks of redistricting plans, blocks, 

block groups, tracts, or voting precincts, are frequently 

delineated by streets and are oftentimes square or rectangular 

in shape. The shapes of these building blocks therefore largely 

precludes circular districts from being formed. 

A fourth concern limiting real world compactnessis the 

constitutional criterion of equality of population discussed 

above. It is of substantially greater legal necessity to comply 

with this criterion than to create perfectly compact districts. To 

meet this constitutional criterion map makers may be forced to 

create districts of less than perfect compactness. In short, 

evaluations of the geographic compactness of political districts 

must consider the constraints faced by the map maker with 

substantial attention focused upon local circumstances. 

    
 



  

120a 

DR. WEBSTER’S REPORT, CONTINUED. .. 

Compactness Indicators Used In This Report 

There are a host of different geographic compactness 

measures available (see Niemi, et al., 1990 for a description 

24 different measures). In general these methods —_— 

on a district’s perimeter, areal dispersion, or population 

distribution in their design. 

Two compactness measures are used in the present 

report, both of which are now among the most commonly 

recognized and applied by legal and academic scholars. Their 

elevated recognition is due largely to their calculation and 

applicationin a 1993 Michigan Law Review article by Richard 

Pildes (Professor of Law, University of Michigan) and Richard 

Niemi (Professor of Political Science, University of Rochester). 

Both authors are among the most recognized authorities o 

redistricting and the courts in the United States today. T 

purpose of their article was to measure the compactness of all 
congressional districts in the United States existing in 1993 in 

such a manner as to parallel the discussion in the Supreme 

Court’s decision in Shaw v. Reno (1993). Adding to the 

relevance of this article and its methods was its citation in Bush 

v. Vera, 1996, as supporting evidence for the Supreme Court’s 

findings that three congressional districts in Texas were 

unconstitutional. 

The first measure is based on the geographic 

“dispersion” of a district. To calculate this measure a circle is  



  

121a 

DR. WEBSTER’S REPORT, CONTINUED. .. 

circumscribed around a district. The reported coefficient is the 

proportion of the area of the circumscribed circle which is also 

included in the district and ranges from 1.0 (most compact) to 

0.0 (least compact). 

The second measure is based upon the calculation of the 

“perimeter” of the district. The reported coefficient is the 
proportion of the area in the district relative to a circle with the 
same perimeter and ranges from 1.0 (most compact) to 0.0 

(least compact). 

Pildes and Niemi (1993: 564) provide some guidance 

on the evaluation of both measures. With respect to the 

dispersion compactness measure, they suggest “low” is equal 

to or less than 0.15. On the perimeter compactness measure 

they suggest that “low” is equal to or less than 0.05. By 

suggesting these guidelines they caution that “we do not imply 

that all districts below those points, or only those districts, are 

vulnerable after Shaw.” These cutoff points are therefore best 

characterized as general guidelines and they should not be 

employed as absolute indicators of acceptable or unacceptable 

levels of compactness. Supporting their statement is the fact 
that in 1998 ten congressional districts in the U.S. are below the 

0.05 benchmark on the perimeter measure (e.g., New York’s 

12th (0.021) and Texas’ 6th (0.027)), and 13 are below the 0.15 

benchmark on the dispersion measure (e.g., Florida’s 22nd 

(0.0331) and California’s 36th (0.042)). 

    
 



  

122a 

DR. WEBSTER’S REPORT, CONTINUED. .. 

Some Theoretical and Real World Comparisons 

In addition to the compactness scores for each of North 

Carolina’s congressional districts, additional scores wer 

calculated for hypothetical and real-world units. The ial 

for calculating these additional scores is to provide 

comparisons for the evaluation of the compactness coefficients 

for North Carolina’s congressional districts. Thus, Figure 3 

displays a square circumscribed by a circle. While most would 

visually evaluate a square district as a highly compact, the 

geographic dispersion score for the square is .640, and its 

perimeter compactness score is .785. Similarly, Figure 4 

displays a rectangle circumscribed by a circle. Again, while 

most viewers would visually evaluate a rectangular district as 

substantially compact, the dispersion compactness of the 

Table 2 provides further comparisons in tabular format 

rectangle is .431 and its perimeter compactness is .641. 

with selected units also presented in Figures 5-9. Among those 

units for which the two compactness indicators were calculated 

are Camden, Davie and Swain counties, the cities of 

Greensboro, Charlotte and Winston-Salem, and two precincts 

each in the cities of Greensboro, Charlotte, and Winston-Salem. 

These additional compactness coefficients provide instructive 

comparators using real-world geographic units. But it must 

also be underscored that these units are not directly indicative 

of the constraints faced by those undertaking the redistricting 

process. For example, counties are not required to maintain  



  

123a 

DR. WEBSTER’S REPORT, CONTINUED. .. 

equal populations and their initial geographic delineations were 

not constrained by the need to aggregate smaller units of census 

geography such as tracts and blocks. 

With the cautionary notes above in mind, the 

comparators provided in Table 2 are helpful to contrast the 

levels of compactness magnitude of real-world political units 

relative to the square and rectangle examples presented above. 

Secondly, these more real-world examples are indicative of the 

contrast in magnitude of the two compactness measures for the 

same jurisdiction, the perimeter compactnessmeasure generally 

being lower in magnitude for such units. Thus while 

Charlotte’s dispersion compactness measure is high at .571, its 

perimeter compactness coefficient is much lower at 0.079. 

Similar contrasts in the magnitudes of the two coefficients were 

also found to characterize both Greensboro and Winston- 

Salem. 

The purpose for calculating the compactness 

coefficients of precincts in the three cities is to demonstrate the 

constraints posed by the building-block units used by the State 

of North Carolina in delineating its congressional districts. On 

the dispersion compactness measure the coefficientsrange from 

a low of 0.154 to a high of 0.297 (Table 2). On the perimeter 

compactness measure the scores range from a low of 0.114 to 

a high of 0.213. These measures are significant because 

building-block units of relatively low compactness will 

    

 



  

124a 

DR. WEBSTER’S REPORT, CONTINUED. .. 

generally result in districts of lesser compactness than districts 

composed of highly compact building-block units. 

Added Constraints Facing Map Makers Drawing “'e 

Districts 

As noted above, electoral district compactness must be 

evaluated with flexibly due to the greater number of constraints 

placed on the process of their formation. The compactness of 

a congressional district can be limited by a host of conditions 

beyond the control of the map maker. For example, many 

counties use meandering rivers as their boundaries. Thus a 
congressional district with boundaries following such county 

boundaries would likely have a limited degree of perimeter 

compactness. Secondly, simple geographic compactness 

indicators ignore real-world patterns of interaction, populatio 

homogeneity and travel. » 

Using the river example above, a geographically 

elongated district centered upon a riverine environment where 

patterns of employment and sociopolitical interaction are 

focused upon the river may be highly appropriate. Even more 

appropriate to the current situation is the focus of a district 

upon major transportation corridors such as freeways. As 

stated by Professor Morrill, the most distinguished political 

geographer in the United States with a long standing interest in 

the districting process,  



  

125a 

DR. WEBSTER’S REPORT, CONTINUED. .. 

A too simplistic application of . . . 
geographic compactness measures is foolish, 
especially where the distribution of the 
population is uneven, perhaps strung out along 
roads or railroads. Travel may be easier and 
cheaper in some directions than in others, such 
that an elongated district astride a major 
transportation corridor might in fact be the most 
compact in the sense of minimum travel time 
for a representative to travel around the district. 

This passage underscores that there are circumstances 
under which there are appropriate reasons for districts to be of 
lesser compactness. An excellent example is Florida’s 22nd 
district (see Figure 12). It is described by Duncan and 
Lawrence (1997: 367) as 

a shoestring of a district hugging the south 
Atlantic coast from Juno Beach south to Miami 
Beach. It is roughly 90 miles long and in some 
places just a few blocks wide. Its width never 
extends beyond three miles. 

This district reflects the reality that the beaches along 
central Florida's coast are peopled by comparatively wealthy 
families as compared to those only three or four miles from the 
coast. It is represented by Republican Clay Shaw, Jr., and to 
my knowledge has not been the target of any litigation. Its 

        

  

    
 



  

  
  

126a 

DR. WEBSTER’S REPORT, CONTINUED. .. 

level of perimeter compactness is 0.0467, while it has the 
lowest level of dispersion compactness of any congressional 
district in the United States at 0.0331. 

A second example pertains to Illinois’ 4th district N 
has popularly been referred to as the “earmuff district.” It has 
also been described as “C-shaped,” “distended,” as having an 
“uncouth configuration,” and as resembling a “Rorschach ink 
blot” (Duncan and Lawrence 1997: 454). While most assuredly 
contorted in its geographic design, this district was found to be 
constitutional by the Supreme Court on January 26, 1998 
because it serves a compelling state interest. Its dispersion 
compactness coefficient is 0.1933, while its level of perimeter 
compactnessis 0.0263. Its perimeter compactness score is the 
second lowest among congressional districts in the United 
States today (the lowest is New York’s 12th district). 

It must be stressed that legislators represent people, and 
the distribution of the population on the landscape is invariably 
uneven. Given this unevenness, and the desire to include a 
requisite number of people with similar social, economic or 
political orientations, among other competing goals, it is 
largely an impossibility to universally create districts of perfect 
theoretical compactness. Such an endeavor would be at odds 
with quality representation, and likely fruitless in result.  



  

127a 

DR. WEBSTER’S REPORT, CONTINUED. .. 

North Carolina’s Congressional Districts 

In 1992 the mean dispersion compactness of North 

Carolina’s twelve congressional districts was 0.280, with the 

range being from a low of 0.045 for district 12 to a high of 

0.440 for district 6 (Table 3). The mean level of dispersion 

compactness for the 1998 districts substantially increased to 

0.354. While the 12th District continued to be the lowest 

among the state’s 12 congressional districts, its dispersion 

compactness more than doubled to 0.109. Secondly, this level 

should be evaluated in light of the district’s focus upon major 

transportation corridors including Interstates 40, 77 and 85. 

District 7 had the greatest level of dispersion compactness at 

0.622. It should be noted that District 7°s level of compactness 

is nearly that of the square displayed in Figure 3. 

In 1992 the mean level of perimeter compactness for 

North Carolina’s twelve districts was 0.095 (Table 3). The 

perimeter compactness coefficientsranged from a low of 0.014 

for the 12th district to a high of 0.319 calculated for the 4th 

district. The mean level of perimeter compactness for the 1998 

districts is a substantially increased 0.192. These coefficients 

ranged from a low of 0.041 for the state’s 12th district to a high 

0.325 for the 7th district. Again, the 12th district’s level of 

objective geographic compactness should be evaluated in light 

of its focus upon major transportation corridors in the area. 

    
 



  

128a 

DR. WEBSTER’S REPORT, CONTINUED. .. 

Table 4 presents the absolute and percentage change in 

the levels of compactness on both the dispersion and perimeter 

measures for North Carolina’s 12 congressional districts. The 

average district in North Carolina increased its level of 

dispersion compactness by 0.075 or 39.1%. The increase in 

level of District 12th’s dispersion compactness was greatest at 

142.2%. District 6’s level of dispersion compactness actually 

fell by nearly 18 percent. This finding underscores that 

changes in one district very frequently lead to changes in other 

districts, and the direction of such successive impacts will not 

necessarily be in the desired direction. 

The average level of perimeter compactness for the 

state’s 1998 districts is also well above what existed in 1992 

(Table 4). The mean district’s level of compactness rose 0.097 

or nearly 172%. District 7’s increase was the greatest at 525%. 

District 4’s perimeter compactness fell by over 13%. 

North Carolina Compared to Other States 

Other states have made adjustments to their 

congressional districts since 1992 because of litigation similar 

to that experienced by North Carolina. Table 5 compares the 

means for both compactness indicators in 1992 and 1998 for 

the state’s of North Carolina, Florida, Georgia and Texas. 

These coefficients are invaluable because they suggest the 

degree of change impacting all districts within each state. In 

short, the redrawing of a single district may impact most other  



  

129a 

DR. WEBSTER’S REPORT, CONTINUED. .. 

districts in a state. Thus, while North Carolina’s 12th district 

was a principal focus of legal challenges, no district in the state 

was left untouched by the changes to its design. 

North Carolina’s mean dispersion compactness 

coefficient is 0.354 for the 1998 districts, higher than both 

Floridaand Texas (Table 5). Its mean dispersion compactness ° 

rose by 0.074, or 26.4% between the 1992 and 1998 plans. 

This mean increase in compactness was the greatest of the four 

states examined. 

North Carolina’s mean perimeter compactness 

coefficient 1s 0.192 for the 1998 districts, higher than that for 

Texas (0.164) and similar to that calculated for Florida (0.207) 

(Table 5). In terms of absolute change, North Carolina’s mean 

level of perimeter compactness rose from 0.095 to 0.192, or by 

0.097. In terms of both absolute and percentage change, this 

level of increase was the greatest among the four states 

examined, doubling the percentage increase of second place 

Georgia. 

Table 6 specifically compares the levels of compactness 

for North Carolina’s 12th congressional district with other 

challenged districts in North Carolina, Florida, Georgia, Illinois 

and Texas. As can be ascertained from the Table, the increase 

in the 12th district’s level of dispersion compactness is second 

only to Georgia’s 11th district among those examined. While 

the 12th district experienced the second smallest level of 

    
 



  

130a 

DR. WEBSTER’S REPORT, CONTINUED. .. 

increase among the set of districts considered on the perimeter 

compactness measure, its increase was substantial at 192.9%. 

The levels of compactness for North Carolina’s twelve 

districts are substantially increased in the 1998 districts 

compared to the 1992 districts. Thus, the system as a whole 

experienced a substantial increase in compactness. At present 

eleven of the state’s twelve districts are above the benchmarks 

suggested by Niemi and Pildes (1993) as indicative of “low” 

compactness. While the 12th congressional district’s level of 

compactness remains marginally below the suggested 

benchmarks, its level of increase is substantial and is 

comparable to that of redrawn districts in other states. 

Secondly, and in reference to the earlier quote by Professor 

Morrill, evaluations of the 12th district’s geographic 

compactness should also consider its travel time compactness. 

Travel times are rarely a direct function of straight I 

distances. Rather the available travel modes and directness of 

traffic corridors between points must also be considered. Thus 

it is highly probable that the time needed for the 12th district’s 

representative to travel to meet constituents at opposite ends of 

the district is substantially less than in many if not most other 

more geographically compact districts. 

5) Continuity of Representation. 

It is counterproductive to fundamentally alter the 

system of districts in a state each time new districts are  



  

131a 

DR. WEBSTER’S REPORT, CONTINUED. .. 

delineated. Wholesale change may lead to voter confusion and 

frustration, and thus non-participation. While the goal of 

preserving the integrity of the district system may be difficult 

if a state has experienced substantial population growth in the 

decennial districting cycle, boundary “stability helps to develop 

and maintain a sense of identity with districts” (Morrill 1981: 

27). The goal of maximizing the continuity of representation. 

is particularly important when changes occur in the middle of 

the normal decennial redistricting cycle. Thus the voters of the 

state of North Carolina have now experienced two significant 

changes to their district associationin the past seven years, with 

a third necessarily coming for the 2002 election cycle. 

It is clear that the 1998 congressional districts are 

significantly different from those employed in the elections of 

1992, 1994, and 1996. It is also clear that effort was expended 

to maintain the geographic cores of the 1992 districts in the 

1998 remap. Table 7 presents the proportion of each district’s 

area in 1992 which remains in the 1998 districts. On average 

76.4% of the area in each of the state’s twelve districts in 1992 

was preserved in the 1998 districts. This proportion ranges 

from a high of 96.7% for the 11th district to a low of 41.6% for 

the 12th district. Thus, the 12th district was more dramatically 

redrawn than any other district in the state. By comparison, 

when Florida’s 3rd district was redrawn under similar 

circumstances, 48.4% of the area of the early 1990s district was 

preserved in the current district (see Figures 10 and 11). 

  
P
R
I
 

SR
 

  

   



  

  

  

    

132a 

DR. WEBSTER’S REPORT, CONTINUED. .. 

The changes created by the redrawing of North 

Carolina’s congressional districts also shifted one-quarter of the 

state’s population to a different district, a very substantial 

movement of the population between districts even for a 

decennial redistricting (Table 8). The impact on individ) 

districts ranged from a low of 7.6% of District 11’s population 

being shifted, to a high of 40.5% for District 2’s population. 

Districts 1, 2, 4, 5, and 12 all had more than 30% of their 

residents shifted to another district in the 1998 remap. Clearly, 

such substantial shifts from one representative to another can 

be unsettling for many constituents. 

Attention to balancing the legal necessity for change 

with the interests of those represented is appropriate in all 

districting cycles, but most particularly for those changes in the 

middle of the normal decennial cycle. The changes in the 1998 

districts as compared to the 1992 districts cannot 

characterized as minimal. Rather I would characterize the 

change as moderate because attention was paid to maintaining 

the geographic cores of the 1992 districts (I would characterize 

extreme change as a plan that paid no heed to the existing 

geographic cores of the former districts). Thus, on this 

criterion I evaluate the efforts of those producing the remap 

favorably because of their balance in complying with the June 

1996 court order while preserving a moderate level of 

continuity of representation for residents of the state’s twelve 

congressional districts,  



  

133a 

DR. WEBSTER’S REPORT, CONTINUED. .. 

Conclusions 

The purpose of this report was to examine the twelve 

1998 congressional districts in the state of North Carolina from 

the perspective of five traditional redistricting criteria. Where 

appropriate the current districts were compared with those first 

used in the 1992 congressional elections. The findings of this 

report are summarized below. 

1) Equal Population. The total deviation of the 1998 

districts is 0.270%, well below the generally accepted guideline 

of less than 1.0%. Thus the present districts are evaluated 

positively on this criterion. 

2) Contiguity. All twelve of North Carolina’s 1998 

districts are contiguous and are therefore evaluated positively 

on this criterion. Secondly, the level of practical contiguity in 

the 1998 districts is substantially increased over that existing in 

the 1992 districts, particularly as this criterion relates to the 6th 

and 12 districts. Thus, when considering the change between 

the 1992 and 1998 districts, the current plan is evaluated very 

favorably. 

3) The Allocation of Local Government or Electoral 

Units. The 1998 districts reduce the number of divided 

counties from 44 in 1992 to 22 at present. This is a substantial 

reduction and the present plan is therefore evaluated favorably 

from this perspective. Secondly, the 1998 districts effectively 

LS
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134a 

DR. WEBSTER’S REPORT, CONTINUED. .. 

3 employed voting precincts as building blocks with only 2 of the 

1 2,531 census defined precincts in the state being divided. Of 

1 the 31 counties not subdivided by census defined voting 

precincts, only one was divided in the districting process. I 

this case (Beaufort County), township boundaries were wl 

4 which are far better building blocks than census blocks or 

3 tracts. : 

4) Geographic Compactness. The level of compactness 

determined for the 1998 districts is substantially improved over 

that existing in the 1992 districts. At present only the 12th 

= congressional district is marginally below the suggested 

guidelines for judging “low” compactness. But such 

judgements should also consider the rate of change for the 12th, 

which was found here to be very substantial and in line with the 

magnitude of change experienced for other districts ordere 

redrawn by the court system. Secondly, the 12th’s level » 

compactness is similar to other existing districts not under 

challenge (e.g., Florida’s 22nd, see Figure 12), and at least one 

district found constitutional by the Supreme Court (e.g., 

  

Illinois’ 4th). Finally, Professor Morrill’s 1981 argument that 

elongated districts which center upon transportation corridors 

may be highly compact in terms of travel time is pertinent. 

5) Continuity of Representation. The redrawing of 

North Carolina’s 1992 congressional districts introduced 

substantial change in the state’s system of representation. On 

average, 24% of the area in the 1992 districts was allocated to      



  

135a 

DR. WEBSTER’S REPORT, CONTINUED. .. 

a different district on the 1998 map. Most dramatic was the 

impact upon the 12th congressional district - the 1998 district 

includes only 42% of the original area of the 1992 district. 

Similarly, nearly 26% of North Carolina’s population was 

moved to a different district in the 1998 plan as compared to 

the 1992 map. The magnitude of this change is substantial, 

most particularly in a mid-decennial redrawing of the state’s 

congressional districts. In short, those undertaking the remap 

appear to have sought balance between the necessity of district 

boundary change and the preservation of representational 

continuity. 

References 

Butler, D. and Cain, B. (1992), Congressional Redistricting: 

Comparative and Theoretical Perspectives, New York, NY: 

MacMillan. 

Cain, B. (1984), The Reapportionment Puzzle, Berkeley: 

University of California Press. 

Dixon, R. G. (1982), “Fair Criteria and Procedures for 

Establishing Legislative Districts,” in B. Grofman, A. Lijphart, 

R. B. McKay, and H. A. Scarrow eds., Representation and 

Redistricting Issues, pp. 7-19. Lexington, Mass.: Lexington 

Books. 

    
 



    

136a 

DR. WEBSTER’S REPORT, CONTINUED. .. 

Duncan, P. D., and Lawrence, C. C. (1997), Politics in 

America, 1998: The 105th Congress, Washington, DC.: 

Congressional Quarterly. 

  

Grofman, B. (1985), “Criteria for Redistricting: A sp 

Science Perspective,” UCLA Law Review, 33: 77-184. 
  

Grofman, B. (1993), “Would Vince Lombardi Have Been Right 

If He Had Said, ‘When It Comes to Redistricting, Race Isn’t 

Everything, Its the Only Thing’?,” Cardozo Law Review, 14: 

1237-1276. 

Grofman, B., Handley, L., and Niemi, R. G. (1992), Minority 

Representation and the Quest for Voting Equality, Cambridge, 

NY: Cambridge University Press. 

Morrill, R. L. (1981), Political Redistricting and GeograliP 

Theory, Washington, D.C.: Association of American 

Geographers. 

Morrill, R. L. (1982), “Redistricting Standards and Strategies 

After Twenty Years,” Political Geography Quarterly, 1: 

361-369. 

Momill, R. L. (1987), “Redistricting, Region, and 

Representation,” Political Geography Quarterly, 6: 241-260.  



  

137a 

DR. WEBSTER’S REPORT, CONTINUED. .. 

Morrill, R. L. (1994), “Electoral Geography and 

Gerrymandering: Space and Politics,” in G. J. Demko and W. 

B. Wood eds., Reordering the World, pp. 101-119, Boulder, 

CO: Westview Press. 

Niemi, R. G., Grofman, B., Carlucci, C. and Hofeller, T. 

(1990), “Measuring Compactness and the Role of a 

Compactness Standard in a Test for Partisan and Racial 

Gerrymandering,” Journal of Politics, 52(4): 1155-1181. 

Pildes, R. H. and Niemi, R. G. (1993), “Expressive Harms, 

“Bizarre Districts,” and Voting Rights: Evaluating Election- 

District Appearances After Shaw v. Reno,” Michigan Law 

Review, 92 (3): 483-587. 

  

Raburn, R., and Leib, J. I. (1994). “Congressional District 

Building Blocks: Choice and Impact in the 1990s,” 

Comparative State Politics, 15(2): 17-27. 

Webster, G. R. (1995), “Congressional Redistricting in the 

Southeastern U.S. in the 1990s,” Southeastern Geographer, 

35(1): 1-21. 

      
 



  

138a 

[This page intentionally left blank] 

 



  

139a 

DR. WEBSTER’S REPORT, CONTINUED. .. 

District # 

Table 1 

Population Equality Between North Carolina 

Total 

Population Deviation? 

Absolute 

Congressional Districts Existing in 1998’ 

Percent 

Deviation® 
  

Yo
 
S
R
E
Y
 

S
l
 

SE
ES
 
o
R
 

I
M
E
 

G
E
E
 

Te
 
SE
R 

2 
T
N
T
 

p
t
 

p
e
d
 

pe
ed

 

N
y
 
=
O
 

552,161 

552,152 

552,622 

551,842 

552,084 

552,171 

552,382 

553,143 

552,615 

533.333 

552,089 

552,043 

225 

234 

236 

544 

-0.041% 

-0.042 

+0.043 

-0.098 

-0.055 

-0.039 

-0.001 

+0.137 

+0.041 

+0.171 

-0.054 

-0.062 

  

Total 

Mean 

6,628,637 

552,386 0.065% 
  

  
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T
i
 
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R
 

Sa
n 

4 
a
]
 

  
   



  

140a 

DR. WEBSTER’S REPORT, TABLE 1, CONTINUED... 

  

Total Absolute Percent 

District # Population Deviation® Deviation® 

Total Deviation® 1,491 0.270% 

Maximum Deviation? 947 0.1 15 
  

* Based upon the 1990 Census of Population. 

a Absolute difference between district and mean of 552,386. 

b Percentage difference between district and mean of 552,386. 

c The total deviation is the difference between the largest (#10) 

and smallest (#4) district. 

d The maximum deviation constitutes that district most deviating 

from the ideal population. 

SOURCE: Calculated by author from data provided by State of North 

Carolina and reflecting the 1990 Census of Population. 

 



  

141a 

DR. WEBSTER’S REPORT, CONTINUED. .. 

Table 2 

Comparator Compactness Indicators for Geographic 

Units in North Carolina 

  

Dispersion Perimeter 

Geographic Unit Compactness Compactness 

North Carolina’ 0.268 0.382 

Selected Counties: 

Camden County” 0.173 0.242 

Davie County” 0.540 0.410 

Swain County” 0.321 0.265 

Selected Cities: 

Greensboro 0.444 0.113 

Charlotte’ 0.571 0.079 

Winston-Salem 0.548 0.075 

Precincts in 

Greensboro: 

Number 119 0.297 0.173 

Number 139 0.289 0.207 

S
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R 

7 

  

  

  

  

142a 

DR. WEBSTER’S REPORT, TABLE 2, CONTINUED. .. 

Dispersion Perimeter 

Geographic Unit Compactness Compactness 
  

Precincts in 

Charlotte: a 

Number 10X2 0.179 0.212 

Number 195 0.154 0.213 

Precincts in 

Winston-Salem: 

Number 1439 0.211 0.199 

Number 1446 0.184 0.114 
  

* Units for which there are accompanying figures. 

SOURCE: Compactness measure coefficients calculated by University 

of Alabama Cartography Lab using U.S. Bureau of the Census TIGER 
Files. 

 



  

143a 

DR. WEBSTER’S REPORT, CONTINUED. .. 

Table 3 

Compactness of North Carolina Congressional Districts 

as Existing in 1992 and 19982 

1992 1998 

District Disper.®  Perim.°  Disper’ Perim. 

  

  

] 254 .028 317 107 

2 247 061 407 176 

3 350 055 407 129 

4 398 319 450 dl 

5 136 .080 206 130 

6 440 .092 362 A113 

7 287 .052 622 323 

8 334 166 345 235 

9 281 .070 292 393 

10 299 .061 402 239 

11 288 143 335 306 

12 .045 .014 109 041 

Mean 280 .095 354 192   
  

 



        

144a 

DR. WEBSTER’S REPORT, TABLE 3, CONTINUED. .. 

SOURCE: Compactness measures for 1992 districts were calculated by 

Election Data Services. Compactness measures for the 1998 districts were 

calculated by the University of Alabama Cartography Lab. 

* Both the “dispersion” and “perimeter” compactness measures are 

discussed in Pildes and Niemi (1993). This article was cited in the Supr 

Court’s plurality decision in Bush v. Vera (June, 1996) as —. 

substantiation for its ruling that Texas congressional districts 18, 29 and 30 

were unconstitutional: The comparable indices for the three Texas districts 

prior to the decision were as follows: District 18: dispersion .36, perimeter 

.01. District29: dispersion.19, perimeter.01. District 30: dispersion .24, 

perimeter .02. Perimeter measures are typically of lesser magnitude than 

dispersion scores. In 1993, 13% of all congressionaldistricts had perimeter 

scores below .10. In 1998 9% of all districts are below .10 on the perimeter 

compactness measure. 

® This measure ranges from 0.0 (least compact) to 1.0 (most compact). To 

calculate this measure the district is first circumscribed by a circle. The 

coefficient is the percentage of the area in the circumscribed circle which 

is also contianed in the district. 

¢ This measure ranges from 0.0 (least compact) to 1.0 (most compact). 

calculate this measure the perimeter of the district is first calculated. 

area of a circle with this perimeter is then calculated. The reported 

coefficientis the proportion of the area in the district relative to the circle. 

The equation used is (((4 x Pi) x Area of District) / (District's Perimeter®)). 

 



  

145a 

DR. WEBSTER’S REPORT, CONTINUED . .. 

Table 4 

Change in Compactness of North Carolina Congressional 

Change in Compactness 

Districts as Existing in 1992 and 19982 

  

  

  

District 

No. Dispersion Perimeter 

Absolute Percent Absolute Percent 

1 +.063 +24.8% +.079 +282.1% 

2 +.160 +64.8% +115 +188.5% 

3 +.057 +16.3% +.074 +134.5% 

4 +.052 +13.1% -.042 -13.2% 

5 +.070 +51.5% +.050 +62.5% 

6 -.078 -17.7% +.021 +22.8% 

7 +335 +116.7% = +273 +525.0% 

8 +.011 +3.3% +.089 +53.6% 

9 +.011 +3.9% +123 +175.7% 

10 +.103 +34.4% +.198 +324.6% 

11 +.047 +16.3% +.163 +114.0% 

12 +.064  +1422%  +.027 +192.8% 

Mean +.075 +39.1% +.097 +171.9% 
  

    

  

 



    

  

  

  

146a 

DR. WEBSTER’S REPORT, TABLE 4, CONTINUED. .. 

SOURCE: Calculated by author from data in Table 3. 
* Both the “dispersion” and “perimeter” compactness measures are 
discussed in Pildes and Niemi (1993). See Table 3 for definitions of 
measures. 

 



Table 5 

  

Increase in North Carolina Congressional District 
Compactness in Comparison to Florida, Georgia and Texas 

Mean Dispersion Compactness 

  

" 
* G
AN
NL
LN
OD
 
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YO
dT
Y 

S H
A
L
S
T
I
M
 
A(
 

State 1992 1998 Absolute Change Percent Change 

North Carolina 280 354 +0.074 +26.4% : 
(N=12) iN 

Florida 314 323 +0.009 +2.9% 

(N=23) 

Georgia 347 400 +0.053 +15.3% 
(N=11) 

Texas 310 322 +0.012 +3.9% 
(N=30) 

       



    

  

  

  

=) 
Mean Perimeter Compactness BR 

z 
State 1992 1998 Absolute Change Percent Change 5 

7] 

North Carolina 095 192 +0.097 +102.1% Z 
=12 w (N=12) = 

Florida 203 207 +0.004 +2.0% S 

(N=23) Z 
< 

Georgia 181 272 +0.091 +50.3% BLE 

(N=11) 
FE wg 
hn 

Texas 131 164 +0.033 +25.2% 2 

(N=30) 
SOURCE: Calculated by author. 

m 
o 

 



Table 6 

  

Increase in Congressional District Compactness of Selected? 
Congressional Districts in North Carolina, Florida, Georgia, Illinois and Texas 

Dispersion Compactness 

  

  

State 1992 1998 Absolute Change Percent Change 

North Carolina 

District 1 0.254 0.317 +0.063 +24.8% 
District 12 0.045 0.109 +0.064 +142.2 

Florida 

District 3 0.111 0.136 +0.025 +22.5 

Georgia 

District 2 0.323 0.541 +0.218 +67.5 
District 11 0.169 0.444 +0.273 +162.7 

" 
*
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3
4
 

    

     



  

  

  

  Dispersion Compactness 

  

State 1992 1998 Absolute Change Percent Change 

Illinois 

District 4 0.193 0.193 0.000 0.0 

Texas 

District 18 0.356 0.335 -0.021 -5.9 

District 29 0.194 0.384 +0.190 +97.9 i 

District 30 0.243 0.383 +0.140 +57.6 S 

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Perimeter Compactness 

  

  

State 1992 1998 Absolute Change Percent Change 

North Carolina 

District 1 0.028 0.107 +0.076 +282.1% 

District 12 0.014 0.041 +0.027 +192.9 

Florida 

District 3 0.011 0.050 +0.039 +354.5 

Georgia 

District 2 0.088 0.411 +0.323 +367.0 

District 11 0.065 0.259 +0.194 +298.5 

Illinois 

District 4 0.026 0.026 0.000 0.0 

    

"* 
Q
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Perimeter Compactness 

  

State 1992 1998 Absolute Change Percent Change 

Texas 

District 18 0.011 0.151 +0.140 +1,272.7 

District 29 0.008 0.178 +0.170 +2.1250 

District 30 0.016 0.180 +0.164 +1,025.0 
  

SOURCE: Calculated by author. 

* While North Carolina's Ist and 12th Districts were both challenged, only the 12th was ruled unconstitutional oe 

on June 13, 1996. Florida's 3rd District was ruled unconstitutional on April 17th, 1996. Georgia’s 11th District iy 

was ruled unconstitutional on June 29th, 1995, and its 2nd District was found likewise on October 30, 1995. 

Illinois’ 4th District has been the subject of nearly continuous criticism and litigation since its creation. But the 

district was found constitional due to a compelling state interest by the Supreme Court on January 26, 1998. 

Texas’ 18th, 29th and 30th Districts were ruled unconstitutional on June 13th, 1996. 

* Q
AN
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153a 

DR. WEBSTER’S REPORT, CONTINUED. .. 

Table 7 

Proportion of Area in 1992 Districts That 

Remains in the 1998 Districts 

Percentage of 1992 Area 

That Remains in the 

1998 Districts District # 
  

1 

2 

“w
y 
G
E
N
C
Y
 

E
d
 

(o
o)

 

10 

11 

12 

65.3% 

70.3% 

75.2% 

75.5% 

66.3% 

81.8% 

88.3% 

86.9% 

90.0% 

79.4% 

96.7% 

41.6% 
  

Mean 76.4% 
  

SOURCE: Calculated by the University of Alabama Cartography 

Laboratory. 

  

  

  

  

 



  

154a 

  

[This page intentionally left blank] 

   



  

155a 

DR. WEBSTER’S REPORT, CONTINUED. .. 

Table 8 

Population Shifts from 1992 Districts in the 

Drawing of the 1998 Districts 

    

    

        

Number of People Percentage of 1992 ; 

Shifted from 1992 District Population 4 
District # District Shifted 1 

180,984 32.8% l 

2 223,685 40.5% 1 

3 148,886 26.9% 

4 194,395 35.2% i 

5 177,687 32.2% 1 

6 143,065 25.9% 1 

7 155,585 28.2% | 

8 81,410 14.7% 1 

9 53,587 9.7% 1 

10 118,426 21.4% 

11 42,110 7.6% 

12 174,471 31.6% 
    Total 1,694,291 (25.6% of state’s pop.) 

Mean 141,191 25.6% 

SOURCE: Based upon data provided by the State of North Carolina and 

reflecting the 1990 Census of Population. 

     



  

156a 

  

B
Y
 

[This page intentionally left blank]   

 



  

157a 

SHAW, ET AL. V. HUNT, ET AL., CA No. 92-202-CIV-5-BR, 

ORDER OF UNITED STATES DISTRICT COURT FOR 

THE EASTERN DISTRICT OF NORTH CAROLINA, 

SEPTEMBER 12, 1997 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF NORTH CAROLINA 

WESTERN DIVISION 

CIVIL ACTION NO. 92-202-CIV-5-BR 

RUTH O. SHAW, et al. 

Plaintiffs, 

JAMES ARTHUR “ART” POPE, et al., 

Plaintiff-Intervenors, 

N
e
’
 

N
a
 

N
a
 

N
e
 

N
a
 

N
e
’
 

v. 

GOVERNOR JAMES B. HUNT, in his official ) 

capacity as Governor of the State of North ) 

Carolina, et al, ) 

Defendants, 

RALPH GINGLES, ef al., 

Defendant-Intervenors. 

N
a
o
’
 

N
w
 

n
e
e
’
 

N
a
”
 

  

ORDER 
  

For reasons given in the contemporaneously filed 

Memorandum Opinion, it is ORDERED 

   



    

R
R
 
i
l
 

158a 

SHAW ORDER OF SEPTEMBER 12, 1997, CONTINUED. .. 

1. That the congressional redistricting plan (1997 

N.C. Sess. Laws, Ch. 11) submitted by the state defendants to 

this court for review on April 1, 1997, is hereby APPROVED 
as having adequately remedied the specific constitutional 

violation respecting former congressional District 12 that w 

found by the Supreme Court of the United States in Shaw v. 

Hunt, 116 S. Ct. 1894 (1996); 

2 That this court’s injunction entered on July 30, 

1996, which inter alia, prohibited the conduct of further 

congressional elections pending approval of a remedial 

redistricting plan is hereby DISSOLVED; 

3. That the claim added by amendment to the 

complaint in this action on July 12, 1996, which challenged on 

“racial gerrymandering” grounds the creation of former 

congressional District 1, is hereby DISMISSED, with 

prejudice, as moot; and 

4. Defendants’ motion suggesting a schedule and 

process for approving the state’s new congressional 

redistricting plan is DENIED as moot. 

This 12th day of September, 1997. 

For the Court: /s/ W. Earl Britt 

United States District Judge  



  

159a 

SHAW, ET AL. V. HUNT, ET AL., CA No. 92-202-CIV-5-BR, 
MEMORANDUM OPINION OF UNITED STATES DISTRICT 
COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA, 
SEPTEMBER 12, 1997 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF NORTH CAROLINA 

WESTERN DIVISION 

CIVIL ACTION NO. 92-202-CIV-5-BR 

RUTH O. SHAW, et al. 

Plaintiffs, 

JAMES ARTHUR “ART” POPE, ef al., 

Plaintiff-Intervenors, 

N
t
 

N
a
 

N
e
 

S
e
 

N
e
’
 

N
e
”
 

V. 

GOVERNOR JAMES B. HUNT, in his official ) 

capacity as Governor of the State of North) 

Carolina, et al, ) 

Defendants, 

RALPH GINGLES, et al., 

Defendant-Intervenors. 

N
e
’
 

N
a
 

N
w
 

N
a
”
 

  

MEMORANDUM OPINION 
  

   



  

160a 

SHAW MEMORANDUM OPINION OF SEPTEMBER 12, 1997, 

CONTINUED. .. 

PER CURIAM: 

This matter is before the court upon submission by the 

state-defendants of a congressional redistricting plan enacte 

by the General Assembly of North Carolina in compliance with 

this court’s injunctive decree of July 30, 1996. The submission 

seeks approval of the plan as having adequately remedied the 

constitutional violation found by the Supreme Court of the 

United States in Shaw v. Hunt, 116 S. Ct. 1894 (1996), and, in 

consequence, a dissolution of this court’s injunction against the 

conduct of further congressional elections pending that 

approval. 

For reasons that follow, we conclude that the plan does 

adequately remedy the specific constitutional violation found 

as to the plaintiffs and plaintiff-intervenors in this case, and o 

that basis we will enter an order approving the plan to that 

extent and dissolving the extant injunction. 

On June 13, 1996, the Supreme Court of the United 

States entered its judgment remanding this action for further 

proceedings by this court in conformity with the Supreme 

Court’s decision that North Carolina’s then-extant 

congressional redistricting plan was unconstitutional because 

unjustified “racial gerrymandering” in the location and  



  

161a 

SHAW MEMORANDUM OPINION OF SEPTEMBER 12, 1997, 

CONTINUED... 

configuration of District 12 violated equal protection rights of 

some of the named plaintiffs in the action. Shaw, 116 S. Ct. at 
1899. 

Pending receipt of the Supreme Court’s mandate which 

did not issue immediately, this court, on July 12, 1996, granted 

an unopposed motion by plaintiffs and plaintiff-intervenors to 
amend the complaint in the action to add new parties and to 

raise a Shaw claim challenge to District 1. 

Following receipt of the Supreme Court’s mandate and 
after holding a hearing on the implementation of the required 
remedy for the constitutional violation, we entered an order on 
July 30, 1996, that enjoined the state-defendants from 
conducting any congressional elections under the then existing 
redistricting plan after the 1996 elections, but allowed the then 

ongoing electoral process for those elections to proceed to 

completion. The order referred the development of a proposed 
remedial plan to the General Assembly of North Carolina for 

exercise of its primary jurisdiction in the matter, with 

instructions to enact and submit to this court a proposed 

remedial plan by April 1, 1997. The order retained jurisdiction 

in this court to act in default of timely action by the General 

Assembly, for approval of any plan submitted, and for such 

further proceedings as might be required. 

  

  

  

    

   



  

  

    

O
H
 

I 
A
 

162a 

SHAW MEMORANDUM OPINION OF SEPTEMBER 12, 1997, 

CONTINUED... 

The General Assembly enacted a proposed remedial 

plan on March 31, 1997 (1997 N.C. Sess. Laws, Ch. 11) and 
timely submitted it to this court for approval on April 1, 1997 

Contemporaneously, the State submitted the plan @® 

preclearance by the United States Department of Justice 

pursuant to § 5 of the Voting Rights Act and we deferred action 

on the plan pending action by the Justice Department. See 

McDaniel v. Sanchez, 452 U.S. 130 (1981). 

While preclearance action was pending, we entered an 

order on May 28, 1997, denying intervention either of right or 

permissively to a number of African-American voters and 

associations who sought intervention both to suggest 

alternative remedial plans and to raise specific vote-dilution 

challenges under § 2 of the Voting Rights Act to certain 

districts in the proposed plan. We found no right to interv 

under the provisions of Fed. R. Civ. P. 24(a), and declined to 

exercise our discretion to permit expansion of this action to 

include new § 2 dilution claims under Fed. R. Civ. P. 24(b). 

On June 9, 1997, the Department of Justice precleared 

the plan pursuant to § 5 of the Voting Rights Act. On that 

same day, we entered an order directing plaintiffs and plaintiff- 

intervenors to advise the court by June 19, 1997, whether they 

intended to object to approval of the plan by this court and, if 

so, to identify the basis of their objections.  



  

163a 

SHAW MEMORANDUM OPINION OF SEPTEMBER 12, 1997, 
CONTINUED... 

In response, the plaintiffs (both original and added), 
while asserting protectively the plan’s inadequacy, disclaimed 
standing under the principles of United States v. Hays, 515 U.S. 
737 (1995), to make any challenge to the plan because, they 
asserted, none of the original plaintiffs resided in the “new” 
Twelfth District, nor did any of the added plaintiffs reside in 
either the original or “new” Twelfth. 

Separately responding, the plaintiff-intervenors, 
reasserting a position previously urged by motion, also declined 
to make substantive objection to the plan. They contended 
instead that the action, having been mooted by the legislative 
action, could only be dismissed without prejudice on that basis. 

The state defendants, replying to these separate 
disclaimers of standing and assertions that the entire action was 
moot contended (1) that there were both plaintiffs and plaintiff- 
intervenors with the requisite standing to make substantive 
challenges to the submitted plan as to both Districts 1 and 12, 
and (2) that the action was not mooted by virtue of the 
legislative action. On this basis, they contended that the parties 
with standing should be required to make such challenges as 
they could, and that this court was empowered and obligated to 

exercise its continuing jurisdictionto review the submitted plan 
to determine whether it remedies the constitutional violation 

found by the Supreme Court. 

      

    
AS
AR
ER
 
R
E
L
 

DI
TA
 

ve 
ne
oh
e 

A
S
R
 

S
R
 

- 

   



  

  

164a 

SHAW MEMORANDUM OPINION OF SEPTEMBER 12, 1997, 

CONTINUED... 

II. 

We first address the issues presented by the lack-of- 

standing and mootness positions taken by the plaintiffs an 

plaintiff-intervenors and disputed by the state defendants, and 

the consequent declination by the plaintiffs and plaintiff- 

intervenorsto take any substantive position on the adequacy of 

the proposed remedial plan, then turn to the merits. 

8 To the extent the plaintiff-intervenors’ 

contention is that the entire action has been mooted by the 

legislature’s enactment of a remedial plan, thereby depriving 

this court of jurisdictioneven to approve or disapprove the plan 

and requiring a simple dismissal without prejudice, we reject 

the contention. Neither of the Supreme Court decisions relied 

upon for the proposition supports it; each is inapposite. 

In Louisianav. Hays, 116 S. Ct. 2542 (1996), a pending 

appeal from a three-judge court-ordered redistricting plan was 

dismissed as moot. In that case, the state legislature had in the 

interval independently adopted and enacted the plan. This 

obviously mooted any basis for Supreme Court review of the 

district court order, whereas here the very matter pending 

judicial review is the legislative enactment. 

In Johnson v. Northam, No. TCA 94-40025-MMP, 

1996 WL 297280 (N.D. Fla. May 31, 1996), a three-judge  



  

165a 

SHAW MEMORANDUM OPINION OF SEPTEMBER 12, 1997, 

CONTINUED. .. 

court, after hearing the parties on the adequacies of a legislative 

remedial plan and approving it, then ordered the case “closed 

with respect to the remedies that have been rendered to correct 

any constitutional infirmity found” in the challenged plan. Id 

at *1. Rather than demonstrating that a legislature’s enactment 

and submission of a proposed remedial plan moots the action, | 

the case demonstrates to the contrary the continuing 

jurisdiction of the court to act in judicial review of the enacted 

plan before “closing” the case. 

We therefore conclude that legislative enactment of the 

submitted plan did not, by mooting the entire action, deprive 

this court of its expressly retained jurisdiction to review the 

plan for approval. 

A Though enactment of the plan submitted has not 

mooted the entire action, it has effectively mooted the Shaw- 

claim added by amendment to challenge District 1. As we 

expressly anticipated in deferring consideration of that added 

claim pending legislativeaction, the remedial plan significantly 

reconfigures the area formerly comprising that district, making 

the claim challenging its former configuration, location, and 

racial compositionmoot. Because as to that claim we therefore 

have no retained approval jurisdiction, it may be dismissed for 

mootness if the plan is approved as having adequately remedied 

the specific violation that has been determined as to District 12. 

      

  

  

  
 



  
  

  

  

  

166a 

SHAW MEMORANDUM OPINION OF SEPTEMBER 12, 1997, 

CONTINUED... 

3. Assuming without deciding (the fact being 

disputed) that--as they assert--none of the plaintiffs resides in 

“new District 12,” any resulting lack of standing on their part 

to challenge the constitutionality of that partic 

reconfiguration of districts cannot affect our retained 

jurisdiction to review the plan for its adequacy to remedy the 

violation found as to former District 12. We are doubtful that 

the non-inclusion of successful plaintiffs in any particular 

reconfigured district that is assumed to be rhe specific remedial 

district could be thought, because of the Hays residence 

requirement, to deprive them of standing to challenge the 

remedial plan as inadequate for the purpose at issue. But we 

need not attempt to decide that quirky problem growing out of 

the Hays standing rule. It suffices for our purposes that, for 

reasons satisfactory to themselves, the plaintiffs have formally 

chosen not to raise any substantive challenge to the adeq 

of the plan to remedy the specific violation found as to former 

District 12. 

In that circumstance, we may properly approve the plan 

as having remedied the specific violation found on the simple 

basis that its adequacy for that purpose has not been challenged 

by any party to the litigation. Under long-settled judicial 

redistricting principles, once a state legislature enacts a 

remedial plan that is then precleared under § 5 of the Voting 

Rights Act, that plan “will then be the governing law unless it, 

too, is challenged and found to violate the Constitution.” Wise  



  

167a 

SHAW MEMORANDUM OPINION OF SEPTEMBER 12, 1997, 
CONTINUED... 

v. Lipscomb, 437 U.S. 535, 540 (1978). That principle simply 

applies in this particular context the general presumption that, 
until successfully challenged, state legislative enactments are 

in conformity with constitutional requirements. 

There having been no substantive challenge to the plan 
by any party to this action, we will therefore approve it as a 
constitutionally adequate remedy for the specific violation 

found by the Supreme Court in this case. 

4, We close by noting the limited basis of the 

approval of the plan that we are empowered to give in the 

context of this litigation. It is limited by the dimensions of this 

civil action as that is defined by the parties and the claims 

properly before us. Here, that means that we only approve the 

plan as an adequate remedy for the specific violation of the 

individual equal protection rights of those plaintiffs who 

successfully challenged the legislature’s creation of former 

District 12. Our approval thus does not--cannot--run beyond 

the plan’s remedial adequacy with respect to those parties and 

the equal protection violation found as to former District 12. 

III. 

For the foregoing reasons, an order will be entered 

which approves the submitted plan to the extent noted, 

dissolves the injunction of July 30, 1996 against the conduct of 

   



168a 

SHAW MEMORANDUM OPINION OF SEPTEMBER 12, 1997, 

CONTINUED... 

further congressional elections, and dismisses without 

prejudice, as moot, the claim added by amendment to challenge 

former congressional District 1. * 

 



  

169a 

U.S. CONST. amend. XIV, § 1 

AMENDMENT XIV. CITIZENSHIP; PRIVILEGES AND 

IMMUNITIES; DUE PROCESS; EQUAL PROTECTION; 

APPOINTMENT OF REPRESENTATION; DISQUALIFICA- 

TION OF OFFICERS; PUBLIC DEBT; ENFORCEMENT 

Section 1. All persons born or naturalized in the United States, 

and subject to the jurisdiction thereof, are citizens of the United 

States and of the State wherein they reside. 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. 

   



170a 

[This page intentionally left blank] 

 



  

171a 

FED. R. Civ. P. 56 

Rule 56. Summary Judgment 

(a) For Claimant. A party seeking to recover upon a 

claim, counterclaim, or cross-claim or to obtain a declaratory 

judgment may, at any time after the expiration of 20 days from 

the commencement of the action or after service of a motion for 

summary judgment by the adverse party, move with or without 

supporting affidavits for a summary judgment in the party's 

favor upon all or any part thereof. 

(b) For Defending Party. A party against whom a 

claim, counterclaim, or cross-claim is asserted or a declaratory 

judgment is sought may, at any time, move with or without 

supporting affidavits for a summary judgment in the party's 

favor as to all or any part thereof. 

(c) Motion and Proceedings Thereon. The motion 

shall be served at least 10 days before the time fixed for the 

hearing. The adverse party prior to the day of hearing may 

serve opposing affidavits. The judgment sought shall be 

rendered forthwith if the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the 

affidavits, if any, show that there is no genuine issue as to any 

material fact and that the moving party is entitled to a judgment 

as a matter of law. A summary judgment, interlocutory in 

character, may be rendered on the issue of liability alone 

although there is a genuine issue as to the amount of damages. 

    

  

  

  

    

   



172a 

FED. R. C1v. P. 56, CONTINUED. .. 

(d) Case Not Fully Adjudicated on Motion. If on 

motion under this rule judgment is not rendered upon the whole 

case or for all the relief asked and a trial is necessary, the court 

at the hearing of the motion, by examining the pleadings 

the evidence before it and by interrogating counsel, shall 

practicable ascertain what material facts exist without 

substantial controversy and what material facts are actually and 

in good faith controverted. It shall thereupon make an order 

specifying the facts that appear without substantial controversy, 

including the extent to which the amount of damages or other 

relief is not in controversy, and directing such further 

proceedings in the action as are just. Upon the trial of the 

action the facts so specified shall be deemed established, and 

the trial shall be conducted accordingly. 

  

(e) Form of Affidavits. Further Testimony; Defen 

Required. Supporting and opposing affidavits shall be made @ 

personal knowledge, shall set forth such facts as would be 

admissible in evidence, and shall show affirmatively that the 

affiant is competent to testify to the matters stated therein. 

Sworn or certified copies of all papers or parts thereof referred 

to in an affidavit shall be attached thereto or served therewith. 

The court may permit affidavits to be supplemented or opposed 

by depositions, answers to interrogatories, or further affidavits. 

When a motion for summary judgment is made and supported 
    

as provided in this rule, an adverse party may not rest upon the 

mere allegations or denials of the adverse party's pleading, but 

the adverse party's response, by affidavits or as otherwise  



  

173a 

FED. R. C1v. P. 56, CONTINUED... 

provided in this rule, must set forth specific facts showing that 

there is a genuine issue for trial. If the adverse party does not 

so respond, summary judgment, if appropriate, shall be entered 

against the adverse party. 

(f) When Affidavits are Unavailable. Should it 

appear from the affidavits of a party opposing the motion that 

the party cannot for reasons stated present by affidavit facts 

essential to justify the party's opposition, the court may refuse 

the application for judgment or may order a continuance to 

permit affidavits to be obtained or depositions to be taken or 

discovery to be had or may make such other order as is just. 

(g) Affidavits Made in Bad Faith. Should it appear to 

the satisfaction of the court at any time that any of the 
affidavits presented pursuant to this rule are presented in bad 

faith or solely for the purpose of delay, the court shall forthwith 
order the party employing them to pay to the other party the 

amount of the reasonable expenses which the filing of the 

affidavits caused the other party to incur, including reasonable 

attorney's fees, and any offending party or attorney may be 

adjudged guilty of contempt. 

    

 



174a 

[This page intentionally left blank] 

 



  

175a 

ORDER OF UNITED STATES DISTRICT COURT FOR THE 

EASTERN DISTRICT OF NORTH CAROLINA, JUNE 22, 1998 

[Caption Omitted in Printing] 

This matter is before the Court on the Defendants’ 

submission of a congressional districting plan for the 1998 

congressional elections (the “1998 plan”). By Order dated 

April 21, 1998, this Court directed the North Carolina General 

Assembly to enact legislation revising the 1997 congressional 

districting plan and to submit copies to the Court. The General 
Assembly enacted House Bill 1394, Session Law 1998-2, 

redistricting the State of North Carolina’s twelve congressional 

districts, and the Defendants timely submitted the 1998 plan to 
the Court. The Plaintiffs subsequently filed an opposition and 
objections to the 1998 plan, and the Defendants have responded 
to the Plaintiffs’ objections. On June 8, 1998, the United States 

Department of Justice precleared the 1998 plan pursuant to 

Section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c, 

and this Court must now decide whether the 1998 plan 

complies with the Equal Protection Clause of the United States 

Constitution. 

Because the Court cannot now say that race was the 

predominant factor in the drawing of District 12 in the 1998 

congressional districting plan, the revised plan is not in 

violation of the United States Constitution, and the 1998 

congressional elections should proceed as scheduled in the 

Court’s April 21 Order. 

   



  

176a 

ORDER, CONTINUED. .. 

* % ¥ Xk 

In Shaw v. Hunt, the United States Supreme Court 

considered challenges to North Carolina’s 1992 congressional 

districting plan (the “1992 plan”) and held that the Ml 

Congressional District (“District 12”) in the 1992 plan 

drawn with race as the predominant factor, that the districting 

plan was not narrowly tailored to serve a compelling state 

interest, and that the 1992 plan violated the Equal Protection 

Clause. 509 U.S. 630, 113 S. Ct. 2816, 125 L. Ed. 2d 511 

(1993) (“Shaw I’); 517 U.S. 899, 116 S. Ct. 1894, 135 L. Ed. 

2d 207 (1996) (“Shaw II’). 

After the North Carolina General Assembly redrew the 

State’s congressional districting plan in 1997, the Plaintiffs in 

this action challenged the constitutionality of the 1997 plan in 

this Court. Specifically, the Plaintiffs argued that the Twel 

and First Congressional Districts were unconstitutional ® 

gerrymanders. Each party moved for summary judgment, and 

in an Order dated April 3, 1998, the Court granted summary 

judgment in favor of the Plaintiffs with respect to District 12. 

Like the Supreme Court in Shaw, this Court held that race was 

the predominant factor in the drawing of District 12 in the 1997 

plan, and that the district was violative of Equal Protection. In 

its April 3 Order, the Court instructed the Defendants to submit 

a new plan in which race was not the predominant factor in the 

drawing of District 12.  



  

177a 

ORDER, CONTINUED. .. 

The Court found that neither party could prevail as a 

matter of law with respect to District 1, and denied summary 

judgment as to that district. Neither this Court nor the Supreme 

Court in Shaw has made a legal ruling on the constitutionality 

of District I under the 1992, 1997, or 1998 congressional 

districting plans. 

* % %k % 

In Wise v. Lipscomb the Supreme Court advised that 

“[w]hen a federal court declares an existing apportionment 

scheme unconstitutional, it is . . . appropriate, whenever 

practicable, to afford a reasonable opportunity for the 

legislature to meet constitutional requirements by adopting a 

substitute measure rather than for the federal court to devise 

and order into effect its own plan.” 437 U.S. 535, 540, 98 S. 

Ct. 2493, 2497, 57 L. Ed. 2d 411 (1978). In reevaluating a 

substitute districting plan, the court must be cognizant that “a 

state’s freedom of choice to devise a substitute for an 
apportionment plan found unconstitutional, either in whole or 

in part, should not be restricted beyond the clear commands of 

the Equal Protection Clause.” Id. (quoting Bums v. Richardson, 

384 U.S. 73, 85, 86 S. Ct. 1286, 1293, 16 L. Ed. 2d 376 

(1966)). Finally, as the Supreme Court has noted, because 

“federal court review of districting legislation represents a 

serious intrusion on the most vital of local functions,” this 

Court must “exercise extraordinary caution in adjudicating” the 

issues now before it. Miller v. Johnson, 515 U.S. 900,916,115 

S. Ct. 2475, 2488, 132 L. Ed. 2d 762 (1995). 

    

  

 



178a 

ORDER, CONTINUED. .. 

Because this Court held only that District 12 in the 1997 

. plan unconstitutionally used race as the predominant factor in 

drawing District 12, the Court is now limited to deciding 

whether race was the predominant factor in the redrawing PS 

1 District 12 in the 1998 plan. In reviewing the Gene 

_ Assembly’s 1998 plan, the Court now concludes that on the 

record now before us that race cannot be held to have been the 

predominant factor in redrawing District 12. In enacting the 

1998 plan, the General Assembly aimed to specifically address 

this Court’s concerns about District 12. Thus, the present 

showing supports the proposition that the primary goal of the 

legislature in drafting the new plan was “to eliminate the 

constitutional defects in District 12.” Aff. of Gerry F. Cohen. 

The State also hoped to change as few districts as possible, to 

maintain the partisan balance of the State’s congressional 

delegation, to keep incumbents in separate districts a 

preserve the cores of those districts, and to reduce the i 

of counties and cities, especially where the Court found the 

divisions were based on racial lines. Id. 

      

  

With the foregoing in mind, the General Assembly 

successfully addressed the concerns noted by the Court in its 

Memorandum Opinion for the purposes of the instant Order. 

Thus, the 1998 plan includes a Twelfth Congressional District 

with fewer counties, fewer divided counties, a more “regular” 

geographic shape, fewer divided towns, and higher dispersion 

and perimeter compactness measures. District 12 now contains 

five, rather than six, counties, and one of those counties is  



  

179a 

ORDER, CONTINUED. .. 

whole. District 12 no longer contains any part of the City of 
Greensboro or Guilford County. The 1998 plan no longer 
divides Thomasville, Salisbury, Spencer, or Statesville. The 
new plan also addresses the Court’s concern that it not assign 
precincts on a racial basis. While the Court noted in its 
Memorandum Opinion that the 1997 plan excepted from 
District 12 many adjacent “voting precincts with less than 35 
percent African-American population, but heavily Democratic 
voting registrations,” the 1998 plan includes fourteen precincts 
in Mecklenburg County in which previous Democratic 
performance was sufficient to further the State’s interest in 
maintaining the partisan balance within the congressional 
delegation. The General Assembly also added several Forsyth 
County precincts to smooth and regularize the District’s 
boundaries. These changes resulted in a total African- 
American population in District 12 of 35 percent of the total 
population of the district, down from 46 percent under the 1997 
plan. 

* k *k % 

Based on the foregoing, the Court now accepts the 1998 
plan as written. The 1998 congressional elections will thus 
proceed under this plan, as scheduled in this Court’s April 21, 
1998, Order. As noted above, neither this Court nor any other 
has made a legal ruling on the constitutionality of District 1. 
The 1998 plan is only approved with respect to the 1998 
congressional elections, but the Court reserves jurisdiction with 
regard to the constitutionality of District I under this plan and 
as to District 12 should new evidence emerge. This matter 

    

  

      

  

  

 



  

180a 

ORDER, CONTINUED. .. 

should therefore proceed with discovery and trial accordingly. 

The parties are ordered to submit proposed discovery schedules 

to the Court on or before June 30, 1998. 

SO ORDERED. Na 

This 19th day of June, 1998. 

SAM J. ERVIN, III 

United States Circuit Judge 

TERRENCE W. BOYLE 

Chief United States District Judge 

RICHARD L. VOORHEES 

United States District Judge 

By: /s/ TERRENCE W. BOYLE 

CHIEF UNITED STATES pistricT@P 

 



  

181a 

SHAW, ET AL. Vv. HUNT, ET AL, CA No. 92-202-CIV-5-BR, 
ORDER OF UNITED STATES DISTRICT COURT FOR 
THE EASTERN DISTRICT OF NORTH CAROLINA, JUNE 9, 1997 

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF NORTH CAROLINA 

WESTERN DIVISION 

CIVIL ACTION NO. 92-202-CIV-5-BR 

RUTH O. SHAW, et al, 

Plaintiffs, 

JAMES ARTHUR “ART” POPE, et al. 5 

Plaintiff-Intervenors, 

S
e
r
 

N
e
w
 

N
a
 

N
a
’
 

N
a
’
 

N
a
”
 

Vv 

GOVERNOR JAMES B. HUNT, in his official ) 
capacity as Governor of the State of North ) 
Carolina, ef al, ) 

Defendants, 2) 

) 
RALPH GINGLES, et al., ) 

Defendant-Intervenors. ) 

  

ORDER 
  

The United States Department of Justice has precleared 
the congressional districting plan submitted to this court on 1 
April 1997. The court hereby ORDERS plaintiffsand plaintiff- 

    

 



  

182a 

SHAW ORDER OF JUNE 9, 1997, CONTINUED... 

intervenors to advise the court by 19 June 1997 whether they 

intend to claim that the plan should not be approved by the 

court because it does not cure the constitutional defects in the 

former plan and to identify the basis for that claim. ® 

This 9th day of June, 1997. 

J. DICKSON PHILLIPS, JR. 

Senior United States Circuit Judgs 

RICHARD L. VOORHEERS 
Chief United States District Judge =| 
W. EARL BRITT 

United States District Judge 

/s/ W. Earl Britt 

United States District Judge 

 



  

  

  

183a 

SHAW, ET AL. Vv. HUNT, ET AL., CA No. 92-202-CIV-5-BR, 
PLAINTIFFS’ RESPONSE TO ORDER OF JUNE 9, 1997, 
JUNE 19, 1997 

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF NORTH CAROLINA 

WESTERN DIVISION 
CIVIL ACTION NO. 92-202-CIV-5-BR 

RUTH O. SHAW, et al, 

Plaintiffs, 

JAMES ARTHUR “ART” POPE, et al., 

Plaintiff-Intervenors, 

N
e
 

N
e
’
 

N
a
’
 

N
e
 

N
e
’
 

N
e
”
 

Vv 

GOVERNOR JAMES B. HUNT, in his official ) 
capacity as Governor of the State of North ) 
Carolina, ef al, ) 

Defendants, ) 

) 
RALPH GINGLES, et al., ) 

Defendant-Intervenors. ) 

RESPONSE TO ORDER OF JUNE 9, 1997 

The Plaintiffs respond as follows to the Court’s Order 
of June 9, 1997, that they and Plaintiff-Intervenors advise the 
Court whether they intend to claim that the plan precleared by 

 



  

184a 

PLAINTIFFS’ RESPONSE, CONTINUED. .. 

the Department of Justice does not cure constitutional defects 

in the former plan and, if so, what is the basis for the claim: 

i; The original Plaintiffs, as well as the thr 

additional Plaintiffs, believe that the new plan does ® 

adequately cure the constitutional defects in the former plan, 

which the Supreme Court held to be unconstitutional. Shaw v. 

Hunt, 116 S.Ct. 1894 (1996). 

ps Like its predecessor, the new plan was 

predominately motivated by race, and does not survive “strict 

scrutiny.” 

3 The Supreme Court found that in the earlier plan 

the Twelfth District was not narrowly tailored. Furthermore, a 

comparison of the new plan’s majority-black First District wi 

the majority-black First District of the earlier plan makes cl 

that the First District in the earlier plan was also race- 

motivated, not “narrowly tailored,” and could have been far 

more compact and more consistent with “communities of 

interest.” 

4. The new plan fragments counties and cities 

unnecessarily, ignores communities of interest, and remains 

bizarre in appearance. The differences between the new plan’s 

majority-black Twelfth District and the unconstitutional 

majority-black Twelfth District of the earlier plan are cosmetic,  



  

185a 

PLAINTIFFS’ RESPONSE, CONTINUED. .. 

and the creation of the new Twelfth District was predominately motivated by race. 

improperly relies on the unconstitutional earlier plan and so violates the principles established ip Abrams v. Johnson, Nos. 

new plan violates Abrams v. Johnson. The relationship between the new plan and the original plan that wag held unconstitutional in Shaw v. Hunt is so close that the new plan 

6. By virtue of the changes that have been made by the redistricting plan submitted to this Court on Apri] 1, 1997, one of the original Plaintiffs appear to have standing to *hallenge the new plan. United States Hays, 115 S.Ct. 2431 1995). The additional Plaintiffs do not reside in the Twelfth 

     



186a 

PLAINTIFFS’ RESPONSE, CONTINUED. .. 

District as originally constituted, nor in the new Twelfth 

District. 

y 7 Because of the lack of standing of the J 

there appears to be no matter at issue before this Court w 

respect to the new redistricting plan. Although Plaintiffs 

believe and claim that the new plan is unconstitutional, they 

recognize that due to their lack of standing, any attack on the 

constitutionality of the new redistricting plan should be 

undertaken in a separate action maintained by persons who 

have standing. 

WHEREFORE, Plaintiffs pray this Court: 

1. That the Court expressly find that the First 

District, as configured in the earlier plan, was rd 

because of the clear absence of narrow-tailoring; 

2. That this Court not approve or otherwise rule on 

the validity of the precleared congressional redistricting plan 

submitted to it on April 1, 1997; but if it does rule, that it hold 

the new plan to be unconstitutional; 

3. That the Court dismiss this action without 

prejudice to the right of any person having standing to maintain 

a separate action attacking the constitutionality of the 

precleared congressional redistricting plan.  



  

187a 

PLAINTIFFS’ RESPONSE, CONTINUED. .. 

Respectfully submitted this the 19th day of June 1997. 

/s/ Robinson 0. Everett 

Attorney for Plaintiffs 

N.C. State Bar No. 1384 

301 West Main St., Suite 300 

Durham, North Carolina 27702 

Telephone: (919) 682-5691 

/s/ Martin B. McGee 

Attorney for Plaintiffs 

N.C. State Bar No. 22198 

147 Union Street South 

P.O. Box 810 

Concord, North Carolina 28026-0810 

Telephone: (704) 782-1173 

[Certificate of Service Omitted in Printing] 

   



188a 

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