Reply Brief of the Smallwood Appellants

    No. 99-1865 
  
  

IN THE 

Supreme @ourt of the United States 
  

ALFRED SMALLWOOD, et al., 

Appellants, 

Appellees. 

V. 

MARTIN CROMARTIE, ef al., 

  

On Appeal from the United States District Court 

for the Eastern District of North Carolina 
  

REPLY BRIEF OF THE SMALLWOOD APPELLANTS 
  

ELAINE R. JONES TobD A. Cox* 

DIRECTOR-COUNSEL NAACP LEGAL DEFENSE 

& EDUCATIONAL FUND, INC. 

NORMAN J. CHACHKIN 1444 Eye Street, N.W. 

JACQUELINE A. BERRIEN 10th Floor ® 
NAACP LEGAL DEFENSE Washington, D.C. 20005 

& EDUCATIONAL FUND, INC. (202) 682-1300 
99 Hudson Street 

Suite 1600 ADAM STEIN 

New York, NY 10013 Ferguson, Stein, Wallas, Adkins, 

(212) 965-2200 Gresham & Sumter, P.A. 

312 West Franklin Street 
  

Chapel Hill, NC 27516 
rl gid VV ED 

RECEIVE (919) 933-5300 
HAND DELIVERED 

NOV - 8 2000 *Counsel of Record 

office OF THE cligfgrneyp for Smallwood Appellants 
Tein —— ; 

Crean mms se PRESS OF BYRON TS. ADAMS 4+ WASHINGTON. D.C. + 1-800-347-8208 

  

       





i 

TABLE OF CONTENTS 

Page 

Tableof Authorities ..... 0... La Pluk, ii 

Argument. EL Earn ans de 1 

I. There is Insufficient Evidence to Support the 

Decision Below... cu has vii iu 1 

II. Appellees Urge that this Court Adopt Legal Standards 

that are Discriminatory and Untenable .......... 8 

III. On the Record Before It, the Court Below Should Have 

Determined Whether the 1997 Plan Could Be Justified 

UnderStiict Scrutiny ......... .. 0.0 aaa 18 

ConblUSION . co al Uy a ii mshi Tw 20 

 



  

il 

TABLE OF AUTHORITIES 

CASES 

| Page 

Abrams v. Johnson, 521 U.S. 74 (1997) .......... passim 

Burns v. Richardson, 384 U.S. 73 (1966) ............ 10 

Bushy, Vera, 517 U.8.952(1996) ........ ...... 16, 17 

Davis v. Bandemer, 478 U.S. 109 (1986) ............ 14 

Growe v. Emison, 5070.8. 251993)... Lo... iis. 10 

Hunt v. Cromartie, 526 U.S. 541 (1996) .......... passim 

Johnson v. DeGrandy, 512 U.S. 997 (1994) .......... 14 

Lawyer v. Department of Justice, 

321 U.8.567C1997) ah aa 7.12.17 

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

Scott v. United States, 920 F. Supp. 1248 (M.D. Fla. 1996), 

aff'd sub nom. Lawyer v. Department of Justice, 

S21U8.567(1997) .L.. ..&.... Ls 1.12, 17 

Shaw v. Hunt, 517 U.S. 899 (1996) ............. 10, 17 

Shaw v. Reno, 509 U.S. 630 (1993) .......... ... 12, 17 

Thornburg v. Gingles, 478 U.S. 30 (1986) ......... 3.19 

United States v. Hays, 515 U.S. 737 (1995) .......... 16 

Village of Arlington Heights v. Metropolitan 

Development Corp., 429 U.S. 252 (1977) ...... 15 

Voinovich v. Quilter, 507 U.S. 146 (1993) ......... 9,10 

   



iil 

White v. Weiser, 412 U.S. 783 (1973) 

Wise v. Lipscomb, 437 U.S. 535 (1978) 

STATUTES 

42 U.S.C. § 1973 

 





REPLY BRIEF OF SMALLWOOD APPELLANTS 

ARGUMENT 

L There is Insufficient Evidence to Support the 
Decision Below 

A careful reading of the Appellees’ Brief on the Merits 
(“Br.”), and of the portions of the record that are cited therein, 
demonstrates the absence of evidence sufficient to support "¢ 
judgment entered in Appellees’ favor by the majority of the 
court below. Instead, the only conclusion supportable on this 
record is that Appellees utterly failed at trial to meet their 
burden of proving that race was the predominant factor driving 
the North Carolina Legislature’s creation of the 1997 Remedial 
Plan. 

In this Court, as below, Appellees dismiss the States 
direct proof of the Legislature’s overriding political concerns 
and ascribe predominantly racial motivations to the members of 
the General Assembly based on inferences they would have the 
Court draw from circumstantial evidence! — primarily a 

  

! Appellees introduced what they describe as a “smoking gun’: an 
e-mail from Gerry Cohen (who was on the staff of the General Assembly 
and prepared computerized versions of districting alternatives for the 
legislators). The e-mail referred to an alternative resulting from shifting 
groups of voters into the Twelfth District, which included, in Cohen’s 
words, the transfer of the “Greensboro black community.” Not only, as we 
discussed in our opening brief, does this “evidence” fail to establish the 
predominance of legislative racial motivation, see North Carolina 
Jurisdictional Statement Appendix (“NC. J.S. App.”) at 48a (Thomburg, 
J., dissenting), but in fact it was not shown to be the view or expression of 
anyone other than Mr. Cohen. Joint Appendix (“Jt. App.”) at 216 (Senator 
Cooper, one of the two addressees of the e-mail, did not remember it). 
Appellees offer no basis for imputing the contents of the e-mail to the North 
Carolina House and Senate. Their assertion that the “E-mail reveals [that], 
behind the scenes the principal authors of the plan had a sinole-minded  



  

2 

tortured recitation of the shape and demographic characteristics 

of District 12 in the 1997 Remedial Plan, see, e.g., Br. at 14-23 

— which they argue should be assessed in a vacuum, divorced 

from any consideration of political context.> But the evidence 

they cite will not bear the weight they seek to place upon it. 

Appellees attempt to bolster their case by developing, 

post hoc, a variety of “facts” and “arguments” neither presented 

to nor relied upon by the lower court, and which do not survive 

careful scrutiny. For example, Appellees claim that “an 

explanation that [District 12] was constructed for a Democrat 

of any race to win is probably inaccurate if the district is ‘safer’ 

than necessary for any Democrat to win,” Br. at 26 (emphasis 

  

obsession with the racial composition of the First and Twelfth Districts, 

rather than the political,” Br. at 35, is an extravagant over-reading of the 

evidence. The majority below clearly erred in determining, based solely on 

the e-mail, that “the chief architects of the 1997 Plan had evolved a 

methodology for segregating voters by race, and [] they applied this method 
to the 12" District,” NC. J.S. App. At 27a. Rather, the evidence at trial 

demonstrated that the 1997 Remedial Plan was a compromise between two 

political parties, each of which controlled one of the two chambers of the 

North Carolina General Assembly. 

“Thus, for example, Appellees continue to complain that the 1997 

Remedial Plan divided Mecklenburg County, North Carolina’s largest. Br. 

at 24 n.22. They ignore the fact that placing the entire county in a single 

congressional district would pit two incumbents (one Republican, one 

Democratic) against one another. Avoiding contests between incumbents 

1s a traditional districting criterion that, in addition, had great partisan 

political significance in a State whose delegation was evenly split between 

the major political parties. Appellees’ concern is all the more disingenuous, 

since their own expert proposed moving Democratic precincts currently in 

District 12 in Mecklenburg County into District 8, a transfer which would 

have resulted in a three-way county split. See Trial Transcript, November 

30, 1999 at 312. 

   



3 

added),’ and they assert for the first time in this litigation that 
“[t]ne Twelfth District is gerrymandered so that African- 
Americans make up about 60% of the persons eligible to vote 
in a Democratic primary.” Id. (emphasis added). To support 
this contention, Appellees cite the testimony of their expert, Dr. 
Weber, that “‘[Bllack voters have the ability to control the 
Democratic nomination’ and can then ‘count on some oe, 
voting in the general election to win.”” /d.* But Dr. Weber di 
not claim that District 12 was gerrymandered to affect primary 
election results; rather, he asserted that District 12 was an 
“overly safe” district in general elections. 

      

Dr. Weber’s opinion was based upon a primary election 
analysis different from the intricate calculations set forth in 
Appellees’ Brief, which are based on estimated registration rates 
by race in “urban areas” of North Carolina, Br. at 27 n.24, were 
never presented to the trial court, and were not tested on cross- 
examination. Dr. Weber opined, on the basis of a flawed 
analysis, see infra p. 4, that more African American than white 
Democrats would participate in primary elections in the Twelft 
District and could therefore determine the nominee. In thei 

  

Ultimately, Appellees are equivocal about what even their own 
theories prove, asserting that their analysis “may explain” the motivation 
of the General Assembly and shows that the State’s explanations for 
District 12’s shape are “probably” inaccurate. See Br. at 26 and 28. 

‘As noted, Appellees assert that African American voters in 
District 12 can ““count on some crossover voting in the general election to 
win.”” Wisely, they do not press this point, since the low levels of 
crossover voting received by the African American candidates of choice in 
District 12 are comparable to the levels found in the districts in which this 
Court found vote dilution in 7hornburg v. Gingles, 478 U.S. 30 (1986). 
See Trial Transcript, November 30, 1999 at 318-320.  



  

4 

Brief, Appellees argue (without any record support whatsoever) 

that the Twelfth District was gerrymandered to have a Black 

“super-majority” in Democratic primary elections sufficient to 

overcome “single-shot” voting in favor of white candidates. 

This Court should not affirm the decision below based upon 

newly invented theories unsupported by the record, and never 

discussed by the lower court. 

Moreover, Dr. Weber’s conclusion that African 

American voters could “control the Democratic nomination” 

was based upon a methodologically flawed analysis of the 

primary election participation rates of white and African 

American voters. Dr. Weber asserts that white voters vote at 

lower rates in the North Carolina primary elections he analyzed. 

However, in North Carolina, only Democrats and unaffiliated 

voters may participate in the Democratic primary; Republicans 

are ineligible to participate. Trial Transcript, November 30, 

1999 at 312-313. Since Dr. Weber's registration data did not 

include information about the voters’ party affiliation, he was 

unable to separate registered voters by party. See id. at 313- 

314. The participation percentages he calculated for white 

voters in Democratic primary elections were based upon all 

white registered voters, including those who might be 

Republican and, therefore, ineligible to vote in the Democratic 

primary. See id. As a result, Dr. Weber’s analysis artificially 

deflates the participation of white voters in the Democratic 

primary, since some proportion of those voters would not be 
eligible to participate in the Democratic primary in any event. 

See id. at 314. 

Dr. Weber admitted that his analysis understated white 

voters’ participation in the Twelfth Congressional District 

primary elections, testifying: “If we could, in fact, separate out 

   



5 

the white Republican voters from the white Democratic voters, 
each of the participation estimates would be higher for the white 
participation rate.” Trial Transcript, November 30, 1999 at 
314. He admitted that this is particularly true for District 12. 
See id. Therefore, Appellees’ argument below, that white 
voters participate at lower rates than African American voters 
in District 12 and therefore control the primary process, was no 
substantiated in the record. That contention, in turn was the 
predicate for Dr. Weber’s conclusion that District 12 is an 
“overly safe” Democratic district in general elections, which 
also fails.® 

The majority below did not rely on nor make any 
findings concerning the issue of whether the Twelfth District is 
“too safe” and did not adopt Appellees’ claims as a basis for its 
ultimate legal conclusions. Appellees have merely devised, post 
hoc, new formulas and analyses by piecing together “facts” that 
the court below never had before it, Br. at 26-28; Br. at 30 
n.25, and unfairly criticize the North Carolina General Assembly 
for failing to adopt modifications of the boundaries for the 
Twelfth District that, so far as the record reflects, were never 
presented to the legislature. It simply defies logic to infer 
unconstitutional intent from the rejection of alternatives that the 
General Assembly never had the option to select. 

  

"Many of the representations about the record evidence contained 
in Appellees’ Brief could be similarly dissected and the arguments they 
ostensibly support similarly discredited. However, in the interest of 
economy and in an effort to avoid duplicating information set forth in our 
opening brief and material presented by the State Appellants in their reply 
brief, the Smallwood Appellants have limited their recitation of the factual 
inadequacies of Appellees’ presentation of the record below.  



  

6 

Moreover, Appellees offer their “alternatives” in a 

vacuum and in piecemeal fashion, giving isolated examples of 

“swaps” of voters they suggest would have been feasible and 

arguing that “[b]y reworking other districts, and by using a 

computer instead of identifying these precincts by hand . . . this 

list could no doubt be expanded.” Br. at 30 n.25. In reality, a 

complete plan encompassing an entire congressional district 

must be developed and analyzed to determine the political and 

legal consequences of implementing it. Appellees themselves 

concede that their particular redistricting choices, reflected in 

one of their partial alternatives, could be non-compact, see id., 

and their own expert admitted that his analyses did not account 

for the actual constraints, including various political and 

redistricting realities, that confronted the North Carolina 

General Assembly. See Trial Transcript, November 30, 1999 at 

271-273, 278-279. Indeed, Dr. Weber displayed some 

contempt for the realities of the redistricting process and those 

legislators who must engage in it. See, e.g., id. at 281 

(concluding that he does not trust legislators to conduct 

redistricting). 

It would be a substantial breach of the federalism and 

comity principles established by this Court to dismantle a 

redistricting plan, forged in the politically charged atmosphere 

in which the 1997 Remedial Plan was developed, based simply 

upon Appellees’ selective and untested precinct-by-precinct 

critique. See infrap. 9. As Justice Stevens said in concurrence 

in Hunt v. Cromartie, 526 U.S. 541 (1999): 

[Blizarre configuration is the traditional hallmark of the 

political gerrymander. . . . [T]he shape of the 

congressional district at issue in this case provides 

strong evidence that either political or racial factors 

   



7 

motivated its architects, but sheds no light on the 

question of which set of factors was more responsible 

for subordinating any of the State’s ‘traditional’ 

districting principles. 

Hunt, 526 U.S. at 555 (citations and footnote omitted). 

  

® Appellees cite the statements of two legislators in an effort to 

establish that the General Assembly conspired to draw the District 12 lines 

so as to ensure that its African American population was as high as 

possible without exceeding 50%. Br. at37 n.31 and 38. The comments of 

Senator Cooper and Representative McMahan, on which Appellees and the 

majority below relied, were intended to assure legislators that (in their 

opinion) the plan drawn by the districting committee based on partisan 
political considerations would not be vulnerable to constitutional challenge. 

Neither of the floor leaders purported to be describing the process or 
criteria by which the plan was created. 

Moreover, their comments are consistent with this Court’s sil) 
jurisprudence. As discussed in the Smallwood Appellants’ opening brief, 

the fact that District 12 is not majority-black is relevant to a federal court’s 

determination whether race was a predominant factor in its creation. See 

Lawyer v. Department of Justice, 521 U.S. 567, 117 S. Ct. 2186, 

2195 (1997), aff°g Scott v. United States, 920 F. Supp. 1248 (M.D. Fla. 

1996) (“[t]he fact that District 21 under Plan 386 is not a majority black 

district, the black voting-age population being 36.2%, supports the District 

Court’s finding that the district is not a ‘safe’ one for black-preferred 

candidates, but one that ‘offers to any candidate, without regard to race, the 

opportunity’ to seek and be elected to office” [citation omitted]). Lawyer's 

vitality does not depend upon the proposition that “the Equal Protection 

Clause does not apply to districts with less than 50% minority population,” 
and Appellees mischaracterize the views of this Court, as well as the 
arguments of the Smallwood and State Appellants by suggesting otherwise. 
See Br. at 36 n.30.  



  

8 

IL. Appellees Urge that this Court Adopt Legal 

Standards that are Discriminatory and Untenable 

Appellees’ arguments in support of affirmance would 

require this Court to announce new legal standards governing 

redistricting that are unworkable or that would apply only to 

minority candidates in a discriminatory fashion. These new 

standards would amount to adoption of a rule that the Court 

explicitly declined to announce in Miller v. Johnson, 515 U.S. 

900 (1995): that if race was at all a factor in the creation or 

design of a redistricting plan — although not the predominant 

factor — the plan is per se illegal.” Appellees’ arguments are 

inconsistent with the concern for State interests that underlies 

the standard of review developed in this Court’s Shaw 

jurisprudence and also conflict with the Court’s long-standing 

precedents in the apportionment context. Moreover, Appellees’ 

contentions serve only to highlight the lower court’s error in 

disregarding this Court’s precedents when it invalidated the 

1997 Remedial Plan. 

First, Appellees equate preservation of some “core” 

portions of District 12 in prior districting plans with an invidious 

racial intent to discriminate in the redistricting process. See, 

e.g., Trial Transcript, December 1, 1999 at 557 and 602; Final 

Pretrial Order at 10; NC. J.S. App. at 44a; Appellees’ Brief on 

the Merits at 11 n.11 (comparing the 1992 Plan with the 1997 

Remedial Plan “would seem quite relevant for the purpose of 

  

"See, e. g., 315 U.S. at 916 (legislatures are “almost always . . . 

aware of racial demographics but it does not follow that race 

predominates’); id. (other districting principles must be subordinated to 

race) (opinion of the Court); id. at 928 (O’Connor, J., concurring); id. at 

935 (Ginsburg, J., dissenting). 

   



9 

determining whether the unconstitutional taint of the 1992 

version of the Twelfth District had been removed”). But this 

Court has never held, in either “one person, one vote” or in 

Shaw cases, that States are required to discard completely a 

prior invalidated plan in the process of devising a remedial plan.® 
Such a rule would be inconsistent with the great deference that 
this Court has accorded to the States’ policy choices in th 

redistricting process, which the Court has repeatedly said shoul 

be set aside by a federal court only to the extent necessary to 

remedy a violation of federal law. See, e.g., White v. Weiser, 

412 U.S. 783, 795 (1973) (in devising a remedy for a federal 

constitutional violation, a court “should follow the policies and 
preferences of the State, expressed in statutory and 
constitutional provisions or in reapportionment plans proposed 
by the state legislature, whenever adherence to state policy does 
not detract from the requirements of the Federal 

Constitutions”); see also Voinovich v. Quilter, 507 U.S. 146, 

156 (1993) (“[F]ederal courts are bound to respect the States’ 

apportionment choices unless those choices contravene federal 

requirements”). iw 

A State legislature’s redistricting options should not be 

constrained simply because the litigants who secured 

invalidation of a prior plan would prefer a particular outcome; 

  

®As Judge Thornburg, dissenting below, recognized, preservation 

of the cores of preexisting districts is closely connected to another 

traditional districting principle, incumbency protection. See NC. J.S. App. 

at 44a-45a (“requiring a legislature to start completely from scratch makes 

their task nearly impossible because congressional incumbents and state 

legislators will invariably demand the preservation of as much of the 

geographic core of districts as possible, a political reality explained in 

testimony at the trial.””). See discussion infra at 11-15.  



  

10 

rather, the State’s preferences may be disregarded only to the 

extent necessary to ensure a remedy for the original violation. 

Where, as in this case, the State has enacted a new plan that 

fully remedies the Shaw violation and complies with all 

applicable federal and state constitutional and statutory 

provisions, there is no basis for federal judicial interference with 

its implementation. Wise v. Lipscomb, 437 U.S. 535, 540 

(1978); see also Shaw v. Hunt, 517 U.S. 899, 917 n.9 (1996) 

(“states retain broad discretion in drawing districts to comply 

with the mandate of § 2”) (citing Voinovich v. Quilter, 507 U.S. 

146 (1993) and Growe v. Emison, 507 U.S. 25 (1993)); Burns 

v. Richardson, 384 U.S. 73, 85 (1966) (“A State’s freedom of 

choice to devise substitutes for an apportionment plan found 

unconstitutional, either as a whole or in part, should not be 

restricted beyond the clear commands of the Equal Protection 
Clause”). 

Appellees cite Abrams v. Johnson, 521 U.S. 74 (1997) 

in support of their contention that it was unconstitutional for the 

legislature to have sought to maintain the cores of Districts 1 

and 12 in creating the 1997 Remedial Plan. Abrams in fact 

supports the legality of North Carolina’s 1997 Remedial Plan. 

In Abrams, the lower court was criticized for fashioning a plan 

that included only one, rather than two, majority-African 

American districts on the ground that the plan enacted by the 

Georgia Legislature prior to that invalidated in Miller v. 

Johnson had included two such districts and represented the 

State’s policy preference. The trial court in Abrams had 

rejected alternatives suggested by the parties that created a 

second majority-minority district because, it held, that would 

have required it to disregard and subordinate traditional 
redistricting criteria. This Court agreed, reasoning that “the 
State was subjected to steady Justice Department pressure to 

   



11 

create the maximum number of majority-black districts, and 

there is considerable evidence the State was predominantly 

driven by this consideration even in developing its 1991 [two 

majority-minority district] plan.” Abrams v. Johnson, 521 U.S. 

74, 86 (1997). 

In this case, unlike Abrams, the North Carolina General 

Assembly in 1997 not only acted without Justice Departme 

pressure but also rejected a plan that would have created a 

majority-African American District 12 by extending District 

12’s boundaries to Durham. See Briefof Smallwood Appellants 

at 10. The 1997 Remedial Plan reduces the number of majority- 

African American districts in North Carolina from two to one, 

and it substantially redrew the boundaries of District 12 to 

eliminate extensions or extremities. These facts closely 

resemble the manner in which the Georgia plan upheld by this 

Court in Abrams was fashioned. See, e.g., Brief of Smallwood 

Appellants at 11-12, 23-24. Reversal of the judgment below 
would therefore be consistent with, not contrary to, the decision 

in Abrams. W 

Second, Appellees urge that the return to office of an 

incumbent elected from an invalidated district establishes 
conclusively that the new districting plan is inadequate to 

  

’A further basis for distinguishing Abrams is that the Georgia 
legislature in that case had been unable to enact a plan to remedy the 
constitutional violation found by the Court in Miller v. Johnson. Here, 
however, the North Carolina General Assembly did act to cure the 
violations found by this Court in a manner consistent with its policy 
preferences. Under these circumstances, it is entitled to a presumption of 
good faith in its execution of the redistricting process and to appropriate 
deference from the federal courts — which, as discussed earlier, the 
majority below failed to give.  



  

12 

remedy the constitutional violation — but they would apply this 

rule only to minority incumbents who had been elected under an 

invalidated plan. This Court has never announced such a 

standard, which if given effect in all Fourteenth Amendment 

cases would undermine even the most routine redistricting 

processes; and it has never characterized the principle of Shaw 

v. Reno, 509 U.S. 630 (1993) as applying only to majority- 

minority districts. See 509 U.S. at 650-51 (equal protection 

analysis “not dependent on the race of those burdened or 

benefitted” [citations omitted]). 

In this case, it is undisputed that the State sought to 

protect all incumbent members of its congressional delegation, 

Democratic and Republican, white and African American, see, 

e.g., Jt. App. at 180-182, 211, 241; and that “every one of the 

majority African-American precincts included in the Twelfth 

District are among the highest, if not the highest, Democratic 

performing districts in that geographic region,” Jt. App. at 50a. 

These facts show no more than that the legislature acted in 

accordance with the “political reality” in North Carolina. See 

NC. J.S. App. 44a-45a (Thornburg, J., dissenting). 

Appellees argue that the 1997 Plan is not justified by 

incumbency protection because it is not limited to “just 

avoid[ing] pairing incumbents.” Br. at 28. They seek on this 

basis to distinguish Lawyer v. Department of Justice, 521 U.S. 

567 (1997) from the facts in this case. Br. at 17 n.16 and 29. 

See also Br. at 36 n.30. But this Court has never constricted a 

legislature’s ability to protect incumbents in this manner. 

Neither this Court in Lawyer, nor the lower court judgment in 

Scott v. United States Department of Justice, 920 F. Supp. 

1248 (1996) that it affirmed, regarded protection of the interest 

of an incumbent in being re-elected in a district redrawn 

   



13 

following a Shaw challenge as an indicium of a continued 

constitutional violation.'® Moreover, in each of the cases in 
which this Court has upheld districts redrawn after prior 

Constitutional invalidation of redistricting plans under the Shaw 

regime, the incumbents have been re-elected, including the 

districts considered in Abrams. 

While Appellees seek to apply their rule only in ah 
context of findings of unconstitutionality in cases brought 
pursuant to the cause of action recognized in Shaw, there is no 

principled reason why this rule would apply only in that context, 
rather than in all cases of Fourteenth Amendment violations — 
including “one person, one vote” suits. Since both types of 
lawsuits are commonplace following decennial redistricting, 
Appellees’ proposed rule of decision would expose jurisdictions 
to a never-ending series of challenges to the constitutionality of 
any plan adopted during the post-2000 Census redistricting that 
succeeded in protecting an incumbent whose district had been 
previously found to violate the Fourteenth Amendment. This is 
perhaps why this Court has never adopted an absolute rule tha 
after an electoral district is found by a court to b 
unconstitutional, an incumbent is not entitled to the same level 
of incumbency protection as his or her counterparts when the 
district is redrawn. 

Appellees’ protests over the fact that District 12 voters 
have reelected Mel Watt amount to little more than a complaint 
that Appellees’ own political preferences were not realized in 

  

hn Lawyer, Florida House District 21s incumbent, 
Representative James T. Hargrett, Jr., intervened in the case to protect his 
interest in being able to run for office in a district that was favorable to his 
electoral success.  



  

14 

the redistricting process. However, neither the United States 

Constitution nor Section 2 of the Voting Rights Act, 42 U.S.C. 

§ 1973, guarantee particular electoral outcomes. Even where 

vote dilution has been found, the remedy is limited to 

establishing a non-dilutive plan, not to proportional 

representation or some specific electoral result. See Johnson v. 

DeGrandy, 512U.S.997, 1014 n.11 (1994) (“the ultimate right 

of § 2 is equality of opportunity, not a guarantee of electoral 

success for minority-preferred candidates of whatever race”). 

See also Davis v. Bandemer, 478 U.S. 109, 129-30 (1986) 

(plurality opinion) (lack of proportional representation does not 

establish unconstitutional political gerrymander); Whitcomb v. 

Chavis, 403 U.S. 124, 160 (1971) (“[We] are unprepared to 

hold that district-based elections decided by plurality vote are 

unconstitutional in either single- or multi-member districts 

simply because the supporters of losing candidates have no 

legislative seats assigned to them”). 

Just as the lack of electoral success is not sufficient to 

establish unconstitutional vote dilution or a political 

gerrymander, reelection of an incumbent under a revised 

districting plan cannot alone establish the inadequacy of a 

remedial plan adopted after a Shaw violation. As the Court 

recognized when this case was last before it, “a jurisdiction may 

engage in constitutional political gerrymandering, even if it so 

happens that the most loyal Democrats happen to be black 

Democrats and even if the State were conscious of that fact.” 

Hunt v. Cromartie, 526 U.S. at 551 (citations and footnote 

omitted). 

  

"Appellees misrepresent the record when they suggest that 

evidence of racial predominance was presented at trial below in the form 

of testimony that Representative Watt’s campaign “defined [potential 

   



15 

Third, citing Village of Arlington Heights v. 

Metropolitan Dev. Corp., 429 U.S. 252 (1977), Appellees 

contend that this Court should modify the standard announced 

in Shaw, Miller, and related cases by requiring that “racial 

motive need not be shown to be the predominant motive but 

  

voters for Watt] on the basis of race” and “targeted [these] rei 

American voters through direct mail, African-American newspapers, and 

radio stations chosen because of their predominantly African-American 

audience.” Br. at 46, citing Jt. App. at 578-83. In fact, Representative 

Watt’s District Director, Don Baker, testified as follows: 

Q Was there a difference in the targeted voters 

with respect to the African American candidate? 

A Not really; interestingly enough, not really. We have 

worked for many affiliated organizations. We have worked for 

women, senior citizens, African Americans, the Hispanic 

community. In the campaigns that I have been involved with that 

is kind of the target groups that we were working towards, keeping 

them involved. 

Jt. App. 581. & 

A. ... We did polling to see exactly what the issues were 

that was on people’s minds. We in turn developed mail 

towards target groups. Seniors was one of the target 

groups that we sent direct mail to. Women was a 

targeted direct mail. African Americans was a targeted 

direct mail. And we sent smaller mailers to other 

individual groups, organizations. 

Jt. App. 582. Thus, the record testimony cited by Appellees demonstrates 

that Rep. Watt’s campaign identified and sought the support of diverse 

groups of voters. Appellees, however, ask this Court to single out African 

American voters for electoral exclusion and to limit African American 

voters’ full enjoyment of their right to be actors in the political process.  



  

16 

only a cause” and also propose shifting the burden of proof 

from plaintiffs to defendants by requiring that “the State [] bear 

the burden of proving that the ‘taint’ of a racial gerrymander has 

been removed.” Br. at 56 n. 43. This reflects another attempt 

by Appellees to distract the Court from their failure to satisfy 

their burden of proof in this case. 

As discussed in the Smallwood Appellants’ opening 

brief, in cases such as this one, this Court has held that 

Appellees have the heavy evidentiary burden of proving that 

““race for its own sake, and not other districting principles, was 

the legislature’s dominant and controlling rationale in drawing 

its district lines,” Bush v. Vera, 517 U.S. 952, 958 (1996) 

(quoting Miller, 515 U.S. at 913), and “that other, legitimate 

districting principles were ‘subordinated’ to race.” Bush, 517 

U.S. at 958 (quoting Miller, 515 U.S. at 916). See generally 

id. at 259-68. Specifically, as this Court has recognized, 

Appellees here must “prove that District 12 was drawn with an 

impermissible racial motive . . . [and] strict scrutiny [only] 

applies if race was the ‘predominant factor’ motivating the 

legislature’s districting decision.” Hunt v. Cromartie, 526 U.S. 

at 547. Merely showing that the State of North Carolina 

conducted the redistricting process with some “consciousness 

of race” is not sufficient. See Bush, 517 U.S. at 1051. Rather, 

this Court has acknowledged the reality that a state “‘always is 

aware of race when it draws district lines, just as it is aware of 

age, economic status, religious and political persuasion, and a 

variety of other demographic factors” but held that “[this] sort 

of race consciousness does not lead inevitably to impermissible 

race discrimination.” United States v. Hays, 515U.S. 737,745 

(1995) (citation omitted) (emphasis in original). See also Bush, 

517 US. at 993 (O’Connor, J, concurring). This is an 

important recognition because it avoids undue interference with 

   



17 

the State’s development of plans that legitimately recognize 

myriad political and demographic considerations. 

Moreover, in this very case, this Court has defined the 

proper role race may play when a state attempts to satisfy its 

various political objectives during the redistricting process, by 

holding that “a jurisdiction may engage in constitutional political 

gerrymandering, even if it so happens that the most lo 

Democrats happen to be black Democrats and even if the State 

were conscious of that fact.” Hunt v. Cromartie, 526 U.S. at 

542 (emphasis in the original) (citing Bush, 517 U.S. at 968; 

Shaw v. Hunt, 517 U.S. at 905; Miller, 515 U.S. at 916; Shaw 

v. Reno, 509 U.S. at 646). See also Brief of the Smallwood 

Appellants at 21-22. 

This Court’s recognition that legislatures are always 

aware of race in drawing district lines, and its consequent 

holding that legislatures may permissibly take race into 

consideration in that process so long as racial considerations do 

not predominate, carves out a limited role for federal courts in 

the redistricting process of States that is effective without bei 

overly intrusive. See Miller v. Johnson, 515 U.S. at 915-1" 

The Court has declined to alter that role when a legislative plan 

adopted to remedy an earlier constitutionally infirm 

apportionment is at issue. See Lawyer v. Department of Justice, 

521 U.S. 567 (1997), aff g Scott v. United States, 920 F. Supp. 

1248 (M.D. Fla. 1996). While making unsupported accusations 

that the North Carolina General Assembly deliberately set out 

to evade the requirements of this Court’s ruling in Shaw v. 

Hunt, 517 U.S. 899 (1996), Appellees have presented no 

convincing reason why this Court should adopt the standard 

they describe as the “Arlington Heights test,” which would bar 

any consideration of race by a legislature enacting a remedial  



  

18 

plan and make the scope of federal courts’ inquiries into 

districting processes vastly more intrusive. 

III. On the Record Before It, the Court Below Should 

Have Determined Whether the 1997 Plan Could Be 

Justified Under Strict Scrutiny 

As set forth more fully in the Smallwood Appellants’ 

opening brief, the court below erred in entering judgment in 

favor of Appellees based on its unsupportable conclusion that 

race predominated in the 1997 districting process. However, 

even if this Court were not to question that conclusion, the 

judgment of the district court cannot stand. Having found that 

race predominated in the creation of the 1997 Remedial Plan, 

the lower court should have considered whether a legally 

sufficient basis existed to justify that action and whether it was 

sufficiently narrowly tailored to accomplish that interest. See 

Brief of the Smallwood Appellants at 28-31."> The lower court 

  

“Appellees have mischaracterized the discussion of the 

stipulations in the Brief of the Smallwood Appellants. The Smallwood 

Appellants never suggested that Appellees stipulated to white bloc voting 
in the areas encompassed by District 12. Rather, the Smallwood 
Appellants explicitly stated the truth that Appellees stipulated to a number 

of facts contained in the record before the North Carolina General 

Assembly, including two of the three Gingles factors, North Carolina’s 

long history of discrimination against African Americans, and that history ’s 

lingering effects. See, e.g., Brief of Smallwood Appellants at 11 and 30. 

In fact, no such stipulation was necessary. Appellees’ own expert 

conceded, both in his deposition and on cross-examination at trial, that 
racially polarized voting patterns persisted in the elections he analyzed for 
the case. See Deposition of Ronald E. Weber, Ph.D. at 336 (in analysis of 

white crossover voting, “African American voters are in fact cohesive on 

which I guess we would call prong 2 in general elections behind 
Democratic candidates.”); Trial Transcript, November 30, 1999 at 320 

   



19 

compounded this error by holding that it need not examine the 

existence of a compelling justification for the State’s action even 

if there was one: “[E]ven if such an interest did exist, the 12th 

District is not narrowly tailored and therefore cannot survive the 

prescribed ‘strict scrutiny.” Id. (emphasis added). 

Appellees attempt to counter the Smallwood Appellants’ 

arguments by charging that they constitute an admission '» 

“the district had to be — and was — race-based.” Br. at 52 

This is an inaccurate distortion of the position of the Smallwood 

Appellants and further demonstrates Appellees’ misapplication 

of the legal standard in this case. 

First, Appellees’ contention reflects their view, contrary 

to this Court’s holdings, that a districting plan is 

unconstitutional simply because race was a factor in its creation. 

However, in accord with this Court’s teachings, the Smallwood 

Appellants have consistently argued in this case that the 1997 

Remedial Plan must be upheld because race was not the 

predominant motive for the creation of the plan. See supra p. 

8 n.7 and accompanying text. The Smallwood Appellanig 

presentation of an alternative argument regarding coma 

justification is consistent with their theory of the case and the 

rulings of this Court. It does not, therefore, constitute an 

admission of any sort. 

Second, as discussed in our opening brief, Appellees’ 

and the lower court’s dismissive treatment of the strict scrutiny 

  

(levels of white crossover vote received by candidates in Districts 1 and 12 

from 1990 to 1998 were in a range comparable to the levels of white 

crossover voting found in the districts in which this Court found vote 

dilution in Thornburg v. Gingles, 478 U.S. 30 (1986)).  



  

20 

analysis finds no support in this Court’s rulings and is entirely 

inadequate to meet the strictures of Shaw and its progeny. See 

Brief of the Smallwood Appellants at 29-31. The three tiered 

analysis demanded by Shaw, requires that a Court at least 

examine what possible legitimate interest a state may have to 

consider race in the redistricting process. The lower court’s 

failure to do so here, therefore, requires that if this Court 

disagrees with our submission that race did not predominate in 

the construction of the 1997 Remedial Plan, it must therefore 

remand and direct the lower court to make findings concerning 

the State’s interest in enacting such a plan and explain the basis 

for its decision. 

CONCLUSION 

For the foregoing reasons, as well as those contained in 

the Brief of the Smallwood Appellants, this Court should 

reverse the judgment of the district court and enter judgment 

for defendants and defendant-intervenors. 

   



Respectfully submitted, 

ELAINE R. JONES TobD A. Cox* 

Director-Counsel NAACP LEGAL DEFENSE 

NORMAN J. CHACHKIN & EDUCATIONAL FUND, INC. 

JACQUELINE A. BERRIEN 1444 Eye Street, NW 

NAACP LEGAL DEFENSE 10th Floor 

& EDUCATIONAL FUND, INC. Washington, DC 20005 

99 Hudson Street, Suite 1600 (202) 682-1300 

New York, NY 10013 ® 

(212) 965-2200 ADAM STEIN 

FERGUSON, STEIN, WALLAS, 

ADKINS, GRESHAM & 

SUMTER, P.A. 

312 West Franklin Street 

Chapel Hill, NC 27516 

(919) 933-5300 

*Counsel of Record 

Attorneys for Smallwood Appellants 

 



No. 99-1865 

  

  
  

IN THE 

Supreme Court of the United States 
  

  

ALFRED SMALLWOOD, et al., 

  
      

| 
HAND DELIVERED Appellants, 

NOV - 8 2000 v. 
i MARTIN CROMARTIE, et al., 

OFFICE OF THE CLERK Apel] 
SUPREME COURT, U.S. ppetiees. 

AFFIDAVIT OF SERVICE 
  

[ HEREBY CERTIFY that all parties required to be served, have been served on this 8th day of 

November, 2000, in accordance with U.S. Supreme Court Rule 29.5(c), three (3) copies of the 

foregoing REPLY BRIEF OF THE SMALLWOOD APPELLANTS by placing said copies in 

the U.S. Mail, first class postage prepaid, addressed as listed below: 

Edwin M. Speas, Jr. Robinson O. Everett 

Tiare B. Smiley Everett & Everett 

North Carolina Department of Justice P.O. Box 586 

P.O. Box 629 Durham, North Carolina 27702 

Raleigh, North Carolina 27602-0629 

  

"KAREN L. PIERANGELI 

BYRON S. ADAMS, LEGAL & COMMERCIAL PRINTERS 

1615 L Street, NW, Suite 100 

Washington, DC 20036 

(202) 347-2803 

Sworn to and subscribed before me this 8th day of November, 2000. 

Lod a wr pe 
WILLIAM R. PIERANGELI 
NOTARY PUBLIC 

District of Columbia 

  

My commission expires April 30, 2004.