Order

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IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

EASTERN DIVISION FILED 

No. 4:96-CV-104-BO(3) JUN 22 1998 

MARTIN CROMARTIE, et al., DAVID W. DANIEL, CLERK 
U.S. DISTRICT COURT 

E TST. NO.CAR 

Vv, 

) 
) 
) 

Plaintiffs, ) 

) 
) ORDER 
) 

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

) 
  

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 $ 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 

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the Court's April 21 Order. 

Ye idpibide oP 

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 Twelfth 

Congressional District ("District 12") in the 1992 plan was drawn with race as the predominant 

factor, that the districting plan was not narrowly tailored to serve a compelling state interest, and 

that the 1952 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 

I). 

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 Twelfth and First Congressional Districts were 

unconstitutional racial 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 2 new plan in 

which race was not the predominant factor in the drawing of District 12. 

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 1 under the 1992, 1997, or 1998 

congressional districting plans. 

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* +* - < 

In Wise v, Lipscomb the Supreme Court advised that [when 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 reevalustinga 

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 Burns 

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). 

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 of District 12 in the 1998 plan. In reviewing 

the General 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 defeots in District 

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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 and preserve the cores of those districts, and to reduce the division of counties 

and cities, especially where the Court found the divisions were based on racial lines, Id. 

With the foregoing in mind, the General Averibly successfully addressed the ¢oncems 

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 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 m 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 precinets to smooth and regulanize the District's boundaries. 

These changes resulted in a total African-American population in District 12 of 35 per cent of the 

total population of the district, down from 46 per cent under the 1997 plan. 

x + x * 

Based on the foregoing, the Court now accepts the 1998 plan as written. The 1998 

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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 [egal 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 1 under this plan and as to District 12 should new evidence emerge. This matter should 

therefore proceed with discovery and trial accordingly. The partics are ordered to submit 

proposed discovery schedules to the Court on or before June 30, 1998. 

SO ORDERED. 
| Y I+ 

This 19 day of June, 1998. 

SAM J. ERVIN, ITI 
United States Circuit Judge 
TERRENCE W, BOYLE 
Chief United States District Judge 
RICHARD L. VOORHEES 
United States District Judge 

Callen J 4 
TERRENCE W. BOYLE 
CHIEF UNITED STATES DISTRICT JUDGE 

  

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¥, 06/22/98 MON 15:48 FAX 919 987 4953 FERGUSON STEIN @oo7 
, SUIT eet Po BlLilTrM “® OFFICE Es 

IN THE DISTRICT COURT OF THE UNITED STATES FILED 
FOR THE EASTERN DISTRICT OF NORTH CAROLINA In 

EASTERN DIVISION AN 22 B® 
CIVIL NO. 4:96CVv104-BO(3) DAVID W. DANIEL, CLERK 

U.S. DISTRICT COURT 
E. DIST. NO. CAR, MARTIN CROMARTIE, et al., 

Plaintiffs, 

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

Defendants. 

) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
)   

THIS MATTER is before the Court on "Metion Of Alfred 

Smallwood, David Moore, William M. Hodges, Robert L. Davis, Jr., 

Jan Valder, Barney Offerman, Virginia Newell, Charles Lambeth and 

George Simkins To Intervene" filed November 26, 1997 and "Second 

Renewed Motion Of Alfred Smallwood, David Moore, William M. 

Hodges, Robert L. Davis, Jr., Jan Valder, Barney Offerman, 

Virginia Newell, Charles Lambeth, and George Simkins For Leave To 

intervene As Defendant" filed May 26, 1998. Defendants in this 

action have filed a response indicating that they do not cbject 

to the motions. Plaintiffs have not filed a written response. 

Upon review of both motions, the Court finds that the 

prospective intervenors meet the requirements of Rule 24 (a) of 

the Federal Rules of Civil Procedure and are therefore entitled 

to intervene as of right in this action. 

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IT IS, THEREFORE, ORDERED that the "Motion Of Alfred 

Smallwood, David Moore, William M. Hodges, Robert IL. Davis, Wo Mh 

Jan Valder, Barney Offerman, Virginia Newell, Charles Lambeth and 

George Simkins To Intervene" and "Second Renewed Motion Of Alfred 

Smallwood, David Moore, William M. Hodges, Robert L. Davis, Jr., 

Jan Valder, Barney Offerman, Virginia Newell, Charles Lambeth, 

and George Simkins For Leave To Intervene As Defendant" are 

GRANTED. 

IT IS FURTHER ORDERED that leave of Court is GRANTED for 

Defendant - Intervenors to file their proposed amended answer. 

y THIS the _g O "day of June, 199s. 

SAM J. ERVIN, III 
United States Circuit Judge 
TERRENCE W. BOYLE 
Chief United States District Judge 
RICHARD L. VOORHEES 
United States District Judge 

Sv ini (J, flr 
TERRENCE W. BOYLE Z 
Chief United States District fu 

  

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IN THE DISTRICT COURT OF THE UNITED STATES F ILED 
FOR THE EASTERN DISTRICT QF NORTH CAROLINA 

EASTERN DIVISION “UY oo 1998 CIVIL NO. 4:56CV104-BO (3) ons : 
DW Dang oLE 
8. DISTRICT GouRT 

JSTNOG MARTIN CROMARTIE, et al., CAR 

Plaintiffs, 

Va. ORDER 

JAMES B. HUNT, JR., in his 

capacity as Governor of the 
State of North Carolina, 

et al., 

) 
) 

) 
) 

) 
) 
) 
) 

) 

) 

) 
Defendants. ) 

) 
) 

  

THIS MATTER is before the Court on the "United States’ 

Motion and Memorandum for Leave To File Brief As Amicus Curiae" 

filed June 95, 1998. 

Upon review of the motion, the Court finds, in its 

discretion, that the United States’ involvement in this case 

would be desirable. See United States v. State of Louisiana, 751 

F. Supp. 608, 620 (E.D. La. 1990). 

IT IS. THEREFORE, ORDERED that the "United States’ Motion 

and Memorandum for Leave To File Brief As Amicus Curiae" is 

hereby GRANTED. 
§ oi 

THIS the / Ags of June, 19598. 

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SAM J. ‘ERVIN, III 

United States Circuit Judge 

TERRENCE W. BOYLE 

Chief United States District Judge 
RICHARD L. VOORHEES 

United States District Judge 

        

By: 

  

TERRENCE W. BOYLE 

Chief United States District Jfidge 

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IN THE DISTRICT COURT OF THE UNITED STATES 
FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

EASTERN DIVISION FILED 
CIVIL NO. 4:96CV104-B0O(3) 

Jun 22 

DAVID W. DANIEL, CLERK 

U.S. DISTRICT COURT 

E DIST. NO. CAR 

MARTIN CROMARTIE, et al., 

Plaintiffs, 

Y. 

JAMES B. HUNT, JR., in his 

capacity as Governor of the 

State of North Carolina, 

et al., 

Defendants. 

  

THIS MATTER is before the Court on a Motion "For Leave To 

Flle A Brief And Participate In Oral Arguments As An Amicus 

Curiae" filed by Norman Primus on May 14, 1998. 

Upon review of the motion, the Court finds that Mr. Primus’ 

participation in this case would not be "useful to or otherwise 

desirable by the court." United States v. State of Louisiana, 

751 F. Supp. 608, 620 (E.D. La. 1950). 

IT IS, THEREFORE, ORDERED that the Motion "For Leave To File 

A Brief And Participate In Oral Arguments As An Amicus Curiae" is 

hereby DENIED. 

THIS the [ Al of June, 1998. 

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As P.12712 

SAM J. ERVIN, III 

United States Circuit Judge 

TERRENCE W. BOYLE 

Chief United States District Judge 
RICHARD L. VOORHEES 

United States District Judge 

TERRENCE W. BOYLE 

Chief United States District 

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