Smallwood v. Cromartie Brief of the Smallwood Appellants

    No. 99-1865

IN THE

OJmjrt nf thp United States

A l f r e d  S m a l l w o o d , et al. ,

V.

Appellants,

M a r t in  C r o m a r t ie , et al.,
Appellees.

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

BRIEF OF THE SMALLWOOD APPELLANTS

E la in e  R. Jo n es  
D ir ec to r -C o u n se l

N o r m a n  J. C h a c h k in  
Ja c q u e l in e  A. B er r ien  
NAACP L e g a l  D e f e n s e  &  

E d u c a t io n a l  F u n d , In c . 
99 Hudson Street 
Suite 1600
New York, NY 10013 
(212) 965-2200

T o d d  A. Cox*
NAACP L e g a l  D e f e n s e  &  

E d u c a t io n a l  F u n d , In c . 
1444 Eye Street, N.W .
10th Floor
Washington, D .C . 20005 
(202) 682-1300

A d a m  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

PRESS OF BYRON S. ADAMS ♦  WASHINGTON, D.C. ♦  1-800-347-8208



1

QUESTIONS PRESENTED

1. 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 
proportion o f minority voters than adjacent districts, 
when (a) it is not a majority-minority district, (b) it 
complies with all o f the race-neutral districting criteria 
the state adopted to govern the design of the entire 
apportionment plan, and (c) there is neither direct nor 
compelling evidence that race was the predominant 
factor in its design?

2. In a challenge to a state congressional district, brought 
under the jurisprudence established by this Court in 
Shaw v. Reno and its progeny, is an inference drawn 
from the challenged district’s shape and racial 
demographics, standing alone, sufficient to support a 
finding for the plaintiffs on the contested issue o f the 
predominance o f racial motives in the district’s design, 
when it is directly contradicted by the testimony of the 
legislators who drew the district and evidence that the 
district conforms with the state’s articulated 
redistricting criteria?

3. Following a finding o f unconstitutionality in a challenge 
to a state congressional district, brought under the 
jurisprudence established by this Court in Shaw v. Reno 
and its progeny, is it an abuse o f discretion for a district 
court to order the state to conduct redistricting 
immediately when redistricting would cause disruption 
to ongoing election processes and when redistricting 
will occur anew following the imminent release of the 
2000 Census data?



11

PARTIES TO THE PROCEEDINGS

Actual parties to the proceeding in the United States 
District Court were:

(1) James B. Hunt, Jr., in his capacity as Governor 
of the State o f North Carolina, Dennis Wicker in his official 
capacity as Lieutenant Governor of the State ofN orth Carolina, 
Harold Brubaker in his official capacity as Speaker o f the North 
Carolina House o f Representatives, Elaine Marshall in her 
official capacity as Secretary o f the State ofNorth Carolina, and 
Larry Leake, S. Katherine Burnette, Faiger Blackwell, Dorothy 
Presser and June Youngblood in their capacity as the North 
Carolina State Board of Elections, defendants, appellants 
herein,

(2) Alfred Smallwood, David Moore, William M. 
Hodges, Robert L. Davis, Jr., Jan Valder, Barney Offerman, 
Virginia Newell, Charles Lambeth and George Simkins, 
defendant-intervenors, appellant-intervenors herein,

(3) Martin Cromartie, Thomas Chandler Muse, R. O . 
Everett, J.H. Froelich, James Ronald Linville, Susan Hardaway, 
Robert Weaver and Joel K. Bourne, plaintiffs, appellees herein.



Ill

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .................................................  i

PARTIES TO THE PR O C EED IN G S...................................... ii

TABLE OF AUTHORITIES ....................................................v

OPINIONS B E L O W .................................................................  1

JU R ISD IC T IO N ........................................................................  1

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED ......................................................2

STATEMENT OF THE CASE ...............................................2

A. The Challenge to the Current Plan .................2

B. Appeal o f the Summary Judgment
D ecision ............................................................... 5

C. The District Court Trial on R e m a n d .............. 9

D. The District Court Opinion and
the Current Appeal .........................................13

SUMMARY OF A RG U M EN T................................................17

ARGUMENT 18



IV

I. The Court Below Erred by Holding that 
Race Predominated in the Creation o f
the Twelfth Congressional D is tr ic t............................ 18

A. The court erred by holding in effect 
that race-consciousness triggers
“strict scrutiny” ............................................... 19

B. The court erred by not giving proper 
weight to the political considerations 
that led to the creation o f the
Twelfth District ...............................................25

II. The District Court Erred by Failing to Assess
Whether the District was Narrowly Tailored to 
Serve a Compelling Justification.................................28

III. The District Court Erred in Ordering Redistricting
on the Eve o f  the Post-2000 Census Redistricting 
C y c le ................................................................................ 31

CONCLUSION ......................................................................... 36

Page



V

TABLE OF AUTHORITIES 

CASES
Page

Abrams v. Johnson, 521 U.S. 74 (1997) ............................  21

Arlington Heights v. Metropolitan Housing Development
Corp., 429 U.S. 252 (1 9 7 7 ) ........................................ 6

Bush v. Vera, 517 U.S. 952 (1996) .............................. passim

Cardona v. Oakland Unified School District,
785 F. Supp. 837 (N.D. Cal. 1992) ........................  31

Chavis v. Whitcomb, 396 U.S. 1 0 6 4 (1 9 7 0 )........................  34

Chen v. City o f Houston, 206 F.3d 502 (5th Cir. 2000) . . 21

Clark v. Calhoun County,
88 F. 3d. 1393 (5th Cir. 1 9 9 6 ) ...........................  21, 30

Corner v. Dalton, 522 F. Supp. 350 (E D. Va. 1981) . . . .  32

Cromartie v. Hunt, 1998 U.S. Dist. LEXIS 7767
(E.D.N.C. Apr. 14, 1998) ............................................. 1

DeWitt v. Wilson, 856 F. Supp. 1409 (E.D. Cal. 1994),
ajf'd, 515 U.S. 1 1 7 0(1995).............................  21 ,25

Diazv. Silver, 932 F. Supp. 462 (E.D.N.Y. 1 9 9 6 ) ............ 31

Dickinson v. Indiana State Election Bd,
933 F.2d 497 (7th Cir. 1 9 9 1 ) ....................................34



Ely v. Klahr, 403 U.S. 108 (1971) 32, 33, 34

Ginglesv. Edmisten, 590 F. Supp. 345 (E.D.N.C. 1984), 
aff'd  in part and rev ’d  in part, sub. nom.,
Thornburg v. Gingles, 478 U.S. 30 (1 9 8 6 )............  11

Huntv. Cromartie, 526 U.S. 541 (1 9 9 9 ) .....................passim

Jenkins v. Red Clay Consolidated School District Bd. o f  Ed., 
4 F.3d 1103 (3rd Cir. 1 9 9 3 ) .....................................  29

Johnson v. De Grandy, 512 U.S. 997 (1 9 9 4 )................... 29

King v. State Board o f Elections,
522 U.S. 1087 (1998) ............................................... 21

Lawyer v. Department o f Justice,
521 U.S. 567(1997) ..........................................  21 ,25

Maryland Citizens for a Representative Gen. Assembly v. 
Governor o f Maryland,
429 F.2d 606 (4th Cir. 1 9 7 0 ) ...........................  33, 34

Maxwell v. Foster,
No. 98-1378 (W.D. La. Nov. 24, 1 9 9 9 ).........  33, 35

Meeks v. Anderson, 229 F. Supp. 271 (D. Kan. 1964) . . .  32

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

Republican Party o f Shelby County v. Dixon,
429 U.S. 934(1976) .................................................  32



Republican Party o f Virginia v. Wilder,
774 F. Supp. 400 (W.D. Va. 1991) ....................... 32

Reynolds v. Sims, 377 U.S. 533 ( 1 9 6 4 ) .......................  31, 32

Scott v. United States, 920 F. Supp. 1248 (M.D. Fla. 1996), 
a ff’d  sub. nom., Lawyer v. Department 
o f Justice, 521 U.S. 5 6 7 (1 9 9 7 ) ..............................  25

Shapiro v. Maryland,
336 F. Supp. 1205 (D. Md. 1972) .......................... 32

Shaw v. Hunt, 517 U.S. 899 (1 9 9 6 ) .............................. passim

Shaw v. Hunt, No. 92-202-CIV-5-BR
(E.D.N.C. September 12, 1 9 9 7 ).................................4

Shaw v. Hunt, 861 F. Supp. 408 (E.D.N.C. 1994),
rev’d, 517 U.S. 899 (1996) ........................................1

Shaw v. Reno, 509 U.S. 630 (1 9 9 3 ).............................. passim

Shaw v. Reno, 808 F. Supp. 461 (E.D.N.C. 1 9 9 2 ) ..............  1

Sincockv. Roman, 233 F. Supp. 615 (D. Del. 1964) . . . .  32

Theriot v. Parish o f Jefferson,
185 F.3d 477 (5th Cir. 1 9 9 9 ) ...................................  21

Thornburg v. Gingles, 478 U.S. 30 (1986) .......................  11

United States v. Hays, 515 U.S. 737 (1 9 9 5 ).......................  20

V ll

Page



Watkins v. Mabus, 502 U.S. 954 (1991) ...........................  32

Wilson v. Eu, 1 Cal. 4th 707, 823 P.2d 545,
4 Cal. Rptr.2d 379 (1992) .......................................  21

White v. Daniel, 909 F.2d 99 (4th Cir. 1990)..................... 33

STATUTES & RULES

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

42U .S.C . § 1973 ............................................................. 15,29

42 U.S.C. § 1973c................. 3

1997 N.C. Sess. Laws, Ch. 11 ................................................  1

viii

Page



BRIEF OF THE SMALLWOOD APPELLANTS

Alfred Smallwood, David Moore, William M. Hodges, 
Robert L. Davis, Jr., Jan Valder, Barney Offerman, Virginia 
Newell, Charles Lambeth and George Simkins (“Smallwood 
Appellants”), white and African-American citizens and 
registered voters residing in the North Carolina Congressional 
Districts challenged in this litigation, appeal from the final 
judgment entered by the three-judge United States District 
Court for the Eastern District o f North Carolina on March 8, 
2000, which declares that the Twelfth Congressional District o f 
North Carolina’s 1997 congressional reapportionment plan, 
1997 N.C. Sess. Laws, Ch. 11 (“ 1997 Remedial Plan”), violates 
the Fourteenth Amendment to the United States Constitution 
and enjoins further elections under that plan.

OPINIONS BELOW

The March 7, 2000 opinion o f the three-judge district 
court is unreported and appears in the Appendix to the 
Jurisdictional Statement on Behalf o f the State o f North 
Carolina (“NC. J.S. App ”) at la. The district court’s final 
judgment, entered March 8, 2000, is unreported and appears at 
NC. J.S. App. at 71a. Previous decisions o f earlier phases of 
this and related litigation are reported at Hunt v. Cromartie, 526 
U.S. 541 (1999); Shaw v. Hunt, 517 U.S. 899 (1996); Shaw v. 
Reno, 509U.S. 630(1993); Cromartie v. Hunt, 1998 U.S. Dist. 
LEXIS 7767 (E.D.N.C. Apr. 14, 1998); Shaw v. Hunt, 861 F. 
Supp. 408 (E.D.N.C. 1994); and Shaw v. Reno, 808 F. Supp. 
461 (E.D.N.C. 1992).

JURISDICTION

The judgment o f the court below was entered on March 
8,2000. The Smallwood Appellants filed their notice o f appeal 
to  this Court on March 13, 2000. Appendix to the 
Jurisdictional Statement on Behalf of the Smallwood Appellants



2

at la. The jurisdiction ofthis Court is invoked under 28 U.S.C. 
§ 1253.

CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED

This appeal involves the Equal Protection Clause o f the 
Fourteenth Amendment, reproduced at NC. J.S. App. at 73a..

STATEMENT OF THE CASE 

A. The Challenge to the Current Plan

This case is a challenge to the 1997 Remedial Plan, 
which is the third congressional redistricting plan enacted by the 
North Carolina General Assembly since the 1990 Census. This 
Court’s ruling in Shaw v. Hunt, 517 U. S. 899 (1996), concerned 
the second congressional redistricting plan enacted by the North 
Carolina legislature following the 1990 Census (“ 1992 Plan”).1 
In Shaw, this Court held that the 1992 Plan was unconstitutional 
because the location and configuration o f the Twelfth District 
violated the equal protection rights o f  some of the plaintiffs in 
the action. Shaw, 517 U.S. at 902.

On July 3, 1996, following the decision o f this Court in 
Shaw v. Hunt, three residents o f  Tarboro, North Carolina,

'The first post-1990 Census North Carolina congressional 
reapportionment plan, enacted in 1991, contained one majority-African- 
American district that was 55.69 percent African-American in total 
population and 52.18 percent African-American in voting age population. 
This Court discussed the history o f the first plan in Shaw v. Reno, 509 U.S. 
63 0 (1993) and Shaw v. Hunt, 517 U. S. 899 (1996). The second post-1990 
Census reapportionment plan, enacted in 1992, contained two majority- 
African-American districts (the First and Twelfth Congressional Districts), 
but the Twelfth Congressional District was held unconstitutional in Shaw 
v. Hunt.



3

Appellees herein, filed the complaint in this action (Cromartie 
v. Hunt), challenging the First District in North Carolina’s 1992 
Plan on the ground that it violated their equal protection rights 
because race predominated in the drawing o f the district. A stay 
o f that action was entered pending the resolution o f the remand 
proceedings in Shaw v. Hunt.

On July 9, 1996 the same Tarboro residents joined the 
original Shaw plaintiffs in filing an Amended Complaint in Shaw, 
raising a similar challenge to and asserting the same claims 
against the First Congressional District as they raised in 
Cromartie v. Hunt. On July 11, 1996, the members o f the 
Smallwood Appellant group (three voters from the First District 
and six voters from the Twelfth District) sought to intervene in 
the Cromartie suit as defendants.2

Following this Court’s remand in Shaw v. Hunt, the 
North Carolina General Assembly convened to develop a 
redistricting plan to remedy the constitutional infirmities found 
by this Court. On M arch 31, 1997, the North Carolina General 
Assembly enacted the 1997 Remedial Plan and submitted it to 
the three-judge court in Shaw v. Hunt, No. 92-202-CIV-5-BR 
(E.D.N.C.).3 The State also submitted the plan for preclearance 
by the United States Department o f Justice pursuant to Section 
5 o f  the Voting Rights Act, 42 U.S.C. § 1973c. On June 9, 
1997, the Department o f Justice precleared the plan. See NC.

2The Smallwood Appellants also participated as intervenors in 
Shaw v. Hunt in the trial court and in this Court, including in the remedial 
proceedings which resulted in the approval o f the 1997 Remedial Plan that 
is the subject o f the present proceedings in this Court. See infra, p. 4.

3A map of the 1997 Remedial Plan is reproduced atNC. J.S. App.
at 75a.



4

J.S. App. at 316a {Shaw v. Hunt, No. 92-202-CIV-5-BR, 
Memorandum Opinion (E.D.N.C. September 12, 1997)). On 
September 12,1997, the three-judge district court in Shaw v. 
Hunt unanimously approved the 1997 Remedial Plan as an 
adequate remedy for the specific constitutional violation found 
by this Court in Shaw v. Hunt. NC. J.S. App. at 312a. The 
three-judge court then dismissed the case after Appellees 
Cromartie and Muse, who were also plaintiffs in Shaw v. Hunt, 
chose not to present their claims that the 1997 Remedial Plan 
was unconstitutional to the Shaw three-judge court.

The Cromartie three-judge court lifted its stay of 
proceedings on October 17, 1997. On the same day, two of the 
three original plaintiffs, along with four residents o f the Twelfth 
District, filed an amended complaint in the Cromartie action, 
challenging the 1997 Remedial Plan as a violation o f the Equal 
Protection Clause and still seeking a declaration that the First 
District in the 1992 Plan is unconstitutional. Within the time 
allowed for answering that amended complaint, the Smallwood 
Appellants filed a renewed motion to intervene as defendants.

On March 31, 1998, the court below heard arguments 
on cross-motions for summary judgment and on the Cromartie 
plaintiffs’ request for preliminary injunction.4 On April 3,1998,

4At the time of this hearing, the district court had not ruled on the 
motions to intervene o f the Smallwood Appellants which had then been 
pending for over twenty months, or their renewed motion that had been 
pending for four months. The court issued its permanent injunction and 
granted summary'judgment without ruling on these unopposed motions or 
holding a hearing on intervention. In fact, the district court refused to allow 
counsel for the Smallwood Appellants an opportunity to bring the motion 
to intervene before it and denied counsel for the Smallwood Appellants an 
opportunity to speak at the hearing.



5

the three-judge United States District Court for the Eastern 
District o f North Carolina issued an order granting summary 
judgment to plaintiffs, declaring North Carolina’s Twelfth 
Congressional District unconstitutional, permanently enjoining 
elections under the 1997 Remedial Plan, and ordering the State 
o f North Carolina to submit a schedule for the General 
Assembly to adopt a new redistricting plan and to hold elections 
under that plan.5 On April 14, 1998, the district court issued its 
opinion explaining its April 3, 1998 order.6 NC. J.S. App. at 
243 a.

B. Appeal of the Summary Judgment Decision

This Court noted probable jurisdiction in Hunt v. 
Cromartie on September 29, 1998. Oral arguments were held 
January 20, 1999. On May 18, 1999, this Court unanimously

5Although the court had not yet released an opinion, the State of 
North Carolina moved for a stay o f the injunction pending appeal. The 
district court denied this motion. The State then filed an application with 
this Court for a stay pending appeal, and the Smallwood Appellants filed 
an amici curiae memorandum in this Court in support of the application. 
This Court denied the request for a stay on April 13, 1998, with Justices 
Stevens, Ginsburg, and Breyer dissenting.

6On May 26, 1998, with their two prior unopposed intervention 
motions still pending, the Smallwood Appellants filed a third motion to 
intervene as defendants in the case. On June 20, 1998, after the deadline 
for filing a timely notice of appeal o f the district court’s April 3 ,1998 order 
and April 6, 1998 judgment had passed, the district court ruled that the 
Smallwood Appellants were entitled to intervene as of right in this action. 
As the delay in granting the motions to intervene prevented them from fully 
participating as parties in the district court and prevented them from being 
able to exercise their right to appeal, the Smallwood Appellants filed in this 
Court on October 2 ,1998 a motion to intervene as Appellants in this case. 
This Court granted the motion on October 19, 1998.



6

reversed the lower court’s decision and remanded for further 
proceedings. Justice Thomas, in an opinion joined by the Chief 
Justice and Justices O ’Connor, Scalia, and Kennedy,7 first 
observed that the new Twelfth District was different than the 
original, noting that

[t]he State’s 1997 plan altered District 12 in several 
respects. By any measure, blacks no longer constitute 
a majority o f District 12: blacks now account for
approximately 47% o f the district’s total population, 
43% o f its voting age population, and 46% of registered 
voters. . . . The new District 12 splits 6 counties as 
opposed to 10. . . . With these changes, the district 
retains only 41.6% o f its previous area. . . and the 
distance between its farthest points has been reduced to 
approximately 95 miles. . . .

Hunt v. Cromartie, 526 U.S. 541, 544 (1999) (citations 
omitted).

This Court also noted that, in evaluating a jurisdiction’s 
motivation in creating a particular redistricting plan, a district 
court must engage in an inherently complex and “‘sensitive 
inquiry into such circumstantial and direct evidence o f intent as 
may be available.’” Id. at 546 (quoting Arlington Heights v. 
Metropolitan Housing Development Corp., 429 U.S. 252 
(1977)). This Court determined that the district court had failed 
to conduct such an inquiry and had improperly held that there 
were no material facts in dispute. Rather, the Court observed 
that “[t]he legislature’s motivation is itself a factual question”

7Justice Stevens filed an opinion concurring in the judgment, in 
which Justices Souter, Ginsburg, and Breyer joined.



7

that was clearly in dispute. Hunt v. Cromartie, 526 U S. at 549. 
This Court acknowledged that “Appellees offered only 
circumstantial evidence in support o f their claim,” including 
maps o f the District and statistical and demographic data. Hunt 
v. Cromartie, 526 U.S. at 547. However, this Court pointed to 
evidence that the legislature created the district “with the intent 
to make District 12 a strong Democratic district,” id., including 
the testimony of two legislative leaders, who testified that the 
district lines are best explained by partisanship.

In addition, this Court found the testimony o f the State’s 
expert political scientist, Dr. David Peterson, probative. Dr. 
Peterson examined racial demographics, party registration and 
election results from the precincts within the district and those 
surrounding it. He found a strong correlation between the racial 
composition o f the precincts and party preference, such that in 
precincts with large proportions o f African-Americans, voters 
tend to vote for Democrats at a high rate and in precincts with 
low proportions o f African-Americans, voters tend to support 
Democratic candidates at a significantly lower rate. Based upon 
Peterson’s testimony, this Court reasoned that “the data tended 
to support both a political and racial hypothesis,” id. at 550, as 
well as “an inference that the General Assembly did no more 
than create a district o f strong partisan Democrats.” Id. The 
Court also found Peterson’s affidavit “significant in that it 
weakens the probative value o f appellees’ boundary segment 
evidence, which the District Court appeared to give significant 
weight.” Id.

In contrast, this Court found that Appellees’ limited 
analysis o f  a few selected precincts was insufficient to support 
a summary judgment that the plan was an unconstitutional racial 
gerrymander. Thus, while in a few instances the State had



8

excluded from the Twelfth District precincts with lower 
proportions o f African-American voters but equal or higher 
proportions o f registered Democratic voters than the precincts 
included within the district, id. at 548, this was not an adequate 
basis to support the entry o f summary judgment for the 
plaintiffs. On the other hand, the State’s expert, Dr. Peterson, 
was more thorough, analyzing all o f the precincts bordering the 
interior and exterior o f the district and examining actual voting 
results, not just registration data. Id. at 550. “Moreover, 
appellees’ maps reported only party registration figures. 
Peterson again was more thorough, looking also at actual 
voting results.” Id. The Court found Dr. “Peterson’s more 
complete analysis was significant because it showed that in 
North Carolina, party registration and party preference do not 
always correspond.” Id. at 551 (footnote omitted).

In light o f this evidence, this Court held that Appellees 
were not entitled to summary judgment. Citing prior 
precedents, this Court stated that “a jurisdiction may engage in 
constitutional political gerrymandering, even if it so happens 
that the most loyal Democrats happen to be African-American 
Democrats and even if the State were conscious o f  that fact,” 
id., at 542 (emphasis in the original) (citations omitted), and 
that, based on the record before it, the motivation behind the 
creation o f the district was in dispute and “it was error in this 
case for the District Court to resolve the disputed fact o f 
motivation at the summary judgement stage.” Hunt v. 
Cromartie, at 552. Therefore, this Court reversed the lower 
court’s judgment and remanded.

C. The District Court Trial on Remand

From November 29, 1999 to December 1, 1999, the 
district court held a trial during which it heard evidence



9

regarding the rationale for the configuration o f the 1997 
Remedial Plan. State legislators testified at trial that in 1997, 
the General Assembly had two primary redistricting goals. The 
first was to remedy the constitutional defect found by this Court 
in the 1992 Plan: the predominance o f racial considerations 
underlying the shape and location o f the Twelfth District. NC. 
J.S. App. at 82a - 83a, 138a; Joint Appendix (“Jt. A p p ”) at 
179, 190-191.8 The second, but equally important, goal was to 
preserve the even partisan balance (six Republican and six 
Democratic members) in North Carolina’s then-existing 
congressional delegation. Jt. App. at 180-182, 241. Meeting 
the second goal o f preserving the same partisan balance in the 
congressional delegation was essential to ensure that the 
General Assembly would be able to agree on a remedial plan, 
since the State House of Representatives was controlled by 
Republicans and the State Senate was controlled by Democrats. 
Id.

The General Assembly accomplished the first goal o f 
enacting a plan free of constitutional defects by utilizing a 
variety o f different redistricting techniques, including: 1) 
avoiding division o f precincts and counties whenever possible; 
2) avoiding use o f narrow corridors to connect concentrations 
o f minority voters; 3) striving for geographical compactness 
without use o f artificial devices such as double cross-overs or 
point contiguity; 4) pursuing functional compactness by 
grouping together citizens with similar interests and needs; and 
5) seeking to create districts that provide easy communication

8Although the First District in the 1992 Plan was never determined 
to be unconstitutional, the General Assembly elected to redraŵ  the First 
District in 1997 to ensure its compliance with the post-1990 census 
decisions. Jt. App. at 234,238-239.



1 0

among voters and their representatives. NC. J.S. App. at 83a, 
138a; Jt. App. at 179.

State legislators testified, and the trial record reflects 
that during the 1997 redistricting process the General Assembly 
considered but ultimately rejected proposed plans that would 
have created a second majority-minority district in the area east 
o f Charlotte toward Cumberland and Robeson Counties. 
Several groups and individuals, including the North Carolina 
Association o f Black Lawyers and State Representative Mickey 
Michaux, objected to the 1997 Remedial Plan because, in their 
view, it diluted the voting strength o f African-Americans in 
certain areas o f  the state and “deliberately separate[d] large 
politically cohesive African-American communities.” See Shaw 
v. Hunt, No. 92-202-CIV-5, Memorandum in Support of 
Motion to Intervene (E.D.N.C. filed April 15, 1997).9

While the State was predominantly motivated by a desire 
to  remedy this C ourt’s finding o f liability and to meet various 
political interests, the trial record indicates that the General 
Assembly also had before it an extensive record concerning the

9Indeed, the majority o f African-American legislators in the North 
Carolina House o f Representatives voted against the 1997 Remedial Plan. 
See NC. J.S. App. at 140a; Jt. App. at 242. The plan favored by those 
opposed to the 1997 Remedial Plan was designed to avoid dilution, but it 
also would have combined African-American voters in Charlotte with 
voters, including African-American and Native American voters, in rural 
areas southeast o f Charlotte. The General Assembly majority concluded 
that such a district would have combined urban and rural voters with 
disparate and divergent economic, social and cultural interests and needs. 
Jt. App. at 385. Also, the General Assembly concluded that the proposed 
district lacked a natural means of communication and access among its 
residents and would have thwarted the goal of maintaining partisan balance 
in the State’s congressional delegation. Id. at 200-201,385.



1 1

historical exclusion o f African-American voters, continuing 
racial appeals in North Carolina election contests, the socio­
economic disparities affecting African-American voters’ 
opportunities to participate in the political process, the lack of 
success o f African-American candidates, and the continuing 
prevalence o f racially polarized voting in North Carolina. See 
NC. J.S. App. at 34a. Plaintiffs stipulated for purposes o f trial 
that: 1) the African-American population is politically cohesive; 
2) the white majority votes sufficiently as a bloc to enable it 
often to defeat the minority’s preferred candidate; 3) for many 
decades African-Americans in North Carolina were victims of 
racial discrimination; and 4) a substantial majority o f the State’s 
African-American population is still at a disadvantage in 
comparison to white citizens with respect to income, house, 
education, and health. Id. See also, e.g., Ginglesv. Edmisten, 
5 9 0 F. Supp. 345,359 (E.D.N.C. 1984), a ff’dinpartandrev’d  
in part sub nom. Thornburg v. Gingles, 478 U.S. 30 (1986); Jt. 
App. at 407-411, 433-437; Affidavit o f Gary O. Bartlett, 
Section 5 Submission, Attachment 97C-28F-3B, North Carolina 
Congressional Redistricting Public Hearing Transcript, February 
26, 1997 at 19-22; id., Ex. 6, Tab 17 (Expert Report o f Dr. J. 
M organ Kousser) (“Kousser Report”); id. at Ex. 6, Tab 17 
(,Shaw v. Hunt, Defendant-Intervenor stipulations) Nos. 1-58, 
64-67).

Evidence at trial showed that the General Assembly 
succeeded in reaching its stated redistricting goals, particularly 
in creating the Twelfth District. While the 1992 Plan divided 80 
precincts and 44 counties, the 1997 Remedial Plan divides only 
tw o precincts and 22 counties. The Twelfth District in the 1997 
Remedial Plan is significantly more compact geographically than 
it w as in the 1992 Plan. The new Twelfth District contains



1 2

parts o f  six counties, rather than ten, has no areas o f “point 
contiguity” and does not contain any “cross-overs” or “double- 
cross-overs” as did the 1992 Plan. In the 1992 plan, the 
Twelfth District’s boundaries divided 48 precincts, while the 
Twelfth District in the 1997 Remedial Plan divides only one. 
See, e.g., NC. J.S. App. at 84a.10

The trial record demonstrates that the boundaries o f  the 
new Twelfth District were determined predominantly by 
partisan considerations and a desire to have an essentially urban, 
Democratic district in the Piedmont region. NC. J.S. App. at 
84a. While the configuration o f the Twelfth District reflects the 
strong correlation between the racial composition o f the 
precincts and party preference o f African-Americans in the 
district, NC. J.S. App. at 156a-157a, 170a-171a; Jt. App. at 
246-248, the Twelfth District’s African-American total 
population was reduced from the original 56.63 percent in the 
1992 Plan to 46.67 percent and the voting-age population was 
reduced from the original 53.34 percent in the 1992 plan to 
43.36 percent.11 NC. J.S. App. at 77a-79a.

10See also Hunt v. Cromartie at 544 (“By any measure, blacks no 
longer constitute a majority of District 12: blacks now account for 
approximately 47% of the district’s total population, 43% of its voting age
population, and 46% of registered voters___ The new District 12 splits 6
counties as opposed to 10 . . . .  With these changes, the district retains only 
41.6% of its previous area. . . and the distance between its farthest points 
has been reduced to approximately 95 miles. . . .”) (citations omitted).

u The trial record also shows that the Twelfth District’s residents 
share a distinct community o f interest. See, e.g., NC. J.S. App. at 84a; Jt. 
App. at 383.



13

D. The District Court Opinion and the Current Appeal

On March 7, 2000, over three months after the 
conclusion o f the trial, the district court issued its decision. In 
an opinion strikingly similar to its prior summary judgment 
ruling, the Court found as a matter o f fact, based upon the 
uncontroverted testimony of Senator Roy A. Cooper, that the 
House and Senate General Assembly committees formed to 
address the defects found by this Court “aimed to identify a plan 
which would cure the constitutional defects and receive the 
support of a maj ority of the members o f the General Assembly. ” 
NC. J.S. at 11a. The court also accepted the uncontroverted 
affidavit testimony o f Senator Cooper and Gary O. Bartlett, 
Executive Secretary-Director, State Board o f Elections, that 
“ [i]n forming a workable plan, the committees were guided by 
two avowed goals: (1) curing the constitutional defects o f the 
1992 Plan by assuring that race was not the predominant factor 
in the new plan, and (2) drawing the plan to maintain the 
existing partisan balance in the State’s congressional 
delegation.” Id. The court below also found that the 1997 
Remedial Plan met the goal o f maintaining the existing partisan 
balances by “avoid[ing] placing two incumbents in the same 
district” and “preserving] the partisan core of the existing 
districts to the extent consistent with the goal of curing the 
defects in the old plan.” Id. The court cited no evidence that 
directly contradicted the testimony introduced by the State to 
the effect that the legislature sought, in creating the 1997 
Remedial Plan, to cure the constitutional defects found by this 
Court by ensuring that race did not predominate in its creation 
while minimizing partisan and political disruption.

Nevertheless, the court below found that race was the 
predominant factor in the creation o f the 1997 Remedial Plan



14

based largely upon its own assessment o f  (a) the Twelfth 
District’s racial demographics and shape, (b) the racial 
characteristics o f a limited number o f precincts that were or 
were not included in the district, and (c) mathematical measures 
o f  the Twelfth District’s relative compactness. Id. at lla -17a  
While the court asserted that “[a] comparison o f the 1992 
District 12 and the present District is o f limited value here,” id. 
at 24a, it nevertheless observed that the Twelfth District in the 
1997 Remedial Plan is as “unusually shaped” as the Twelfth 
District in the 1992 Plan. Id. Focusing almost exclusively on 
demographic data and the district’s configuration, the court 
found “as a matter o f fact that the General Assembly, in 
redistricting, used criteria with respect to the Twelfth District 
that are facially race driven.” Id. at 28a. Finally, despite 
extensive conflicting factual evidence, the court below 
concluded that “[t]he legislature eschewed traditional districting 
criteria such as contiguity, geographical integrity, community of 
interest, and compactness in redrawing the District as part of 
the 1997 Plan.” Id. at 29a.

The court found that no evidence o f  a compelling 
justification for the creation o f the Twelfth District was 
presented and determined that “even if such an interest did exist, 
the 12th District is not narrowly tailored and therefore cannot 
survive the prescribed ‘strict scrutiny’.” Id. The lower court, 
thus, never proceeded to assess whether the Twelfth District 
was narrowly tailored to satisfy an identified compelling 
justification.12 Instead, the court proceeded to conclude that

12Therefore, the court never considered or discussed whether the 
creation of the Twelfth District could be justified by a compelling interest 
in remedying the current effects o f North Carolina’s long history of 
political exclusion and in avoiding dilution of minority voting strength. The



15

“District 12 is an impermissible and unconstitutional racial 
gerrymander in violation of the Equal Protection Clause” and 
ordered the State to “redistrict the 1997 Plan in such a way that 
it avoids the deprivation o f the voters ’ equal protection rights 
not to he classified on the basis o f race," leaving the State “free 
to use other, proper factors in redistricting the 1997 Plan.” Id. 
(emphasis added).

While ruling that race was also the predominant factor 
in the creation of District 1, the court held that the district was 
narrowly tailored to meet North Carolina’s compelling state 
interest o f complying with Section 2 of the Voting Rights Act, 
42 U.S.C. § 1973 (“Section 2”). NC. J.S. App. at 34a. In 
addition, the district court found that the configuration o f  the 
First District also “address[ed] other traditional, political 
considerations, including the desire to protect incumbency, both 
o f a Democrat in the First District and a Republican in the 
Third District.” Id.

District Court Judge Thornburg, sitting by designation 
as Circuit Judge, joined the majority insofar as it held that the 
First District is constitutional; however, inter alia, he dissented 
from the majority opinion that the Twelfth District is an 
unconstitutional racial gerrymander. Judge Thornburg 
acknowledged the difficult challenges that confronted the North 
Carolina General Assembly during the 1997 redistricting

court ignored evidence presented by the State that its “primary goals [of 
remedying the constitutional defects found in the 1992 Plan and preserving 
partisan balances m the congressional delegation] 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),” Jt. App. at 384, 
and that the Twelfth District affords African-American voters a fair chance 
to elect their candidate of choice. Jt. App. at 386.



16

process. Judge Thornburg found that the State faced a myriad 
o f “conflicting agendas and influences,” including incumbency 
considerations and partisan political concerns. Id. at 38a. 
Judge Thornburg concluded that the majority was incorrect to 
conclude that from this “cauldron” race emerges as the 
predominant motivating factor leading to the creation o f the 
Twelfth District. Id. He suggested that it would be impossible 
for the State to  “navigate these treacherous waters without 
being aware o f  the issue o f race,” since “race loomed as the 
reason why the General Assembly had to redraw districts in the 
first place.” Id. at 38a-39a (emphasis in the original). 
However, he concluded that it was improper for the majority to 
determine that race “impermissibly predominated, in a process 
where consciousness o f race is not prohibited.” Id. at 39a 
(footnote and citations omitted). In so concluding, the majority 
failed to hold the plaintiffs to their burden of proof and properly 
credit the testimony o f the two state legislators who drove the 
1997 redistricting process. Id.

Judge Thornburg determined that the majority “fail[ed] 
to evaluate the redistricting process within the context o f  the 
legislative environment where such decisions occur.” Id. at 46a. 
Judge Thornburg found that any plan that was to pass the 
legislature had to  receive bi-partisan support from both houses 
and, therefore, the legislative leadership “set out to design a 
plan which, in addition to addressing the constitutional 
deficiencies o f past plans, would protect incumbents and thereby 
maintain the then existing 6-6 partisan split amongst North 
Carolina’s congressional delegation.” Id. Furthermore, Judge 
Thornburg reasoned that “[bjecause both the First and Twelfth 
Districts had Democratic incumbents, and maintaining the 6-6 
split was viewed as imperative, preserving a strong Democratic



17

Twelfth District which protected incumbent Mel W atts’ [sic] 
political base was absolutely necessary.” Id. at 46a-47a. In 
doing so, Judge Thornburg held that “common sense as well as 
political experience dictated ascertaining the strongest voter 
performing Democratic precincts in the urban Piedmont 
Crescent.” Id. Indeed, Judge Thornburg found that precincts 
were included in the Twelfth District “based primarily upon 
their Democratic performance, not their racial make-up.” Id. 
Thus, he concluded that it was not a constitutional violation 
“[t]hat many o f those strong Democratic performing precincts 
were maj ority African-American, and that the General Assembly 
leaders were aware o f that fact.” Id. (footnote omitted). 
Racial considerations were merely part “of the numerous 
political considerations which legislative leaders had to account 
for in designing a plan which would pass.” Id. at 48a.

SUMMARY OF ARGUMENT

In striking down North Carolina’s Twelfth 
Congressional District, the district court misapplied this Court’s 
precedents and imposed its own subjective redistricting 
preferences as the measure o f the district’s constitutionality. 
The court erred in several critical respects.

First, the lower court erred by conflating any 
consciousness or awareness o f race with the application o f strict 
scrutiny and a finding that the Twelfth District is a racial 
gerrymander. In so doing, the lower court decision not only 
ignores the law o f  the case, Cromartie v. Hunt, but erects an 
invidious racial double standard for the African-American voters 
in the Twelfth Congressional District. Second, the court erred 
by failing to examine whether any compelling justification could 
exist for the creation o f the challenged district. Third, the 
district court exceeded its authority in ordering that the state



18

develop a remedy after the election process had begun and only 
a year before a new plan would have to be developed following 
the release of the 2000 census data.

The district court’s decision, if upheld, would render 
meaningless this Court’s prior holdings, but particularly 
Cromartie v. Hunt, in which this Court refused to equate mere 
consciousness o f  race with unconstitutional racial 
gerrymandering. In clear contravention to this Court’s decision 
in Cromartie, the district court’s reasoning would apply strict 
scrutiny to all districts drawn for political purposes even if race 
was found to be only one o f several factors in the redistricting 
process.

ARGUMENT

I. The Court Below Erred by Holding that Race 
Predominated in the Creation of the Twelfth 
Congressional District

As noted supra in the Statement o f the Case, the court 
below failed to assess most o f the evidence presented by the 
Defendants and Defendant-Intervenors at trial. Instead, the 
court primarily recited statistics concerning the racial 
composition and political party registration o f voters in a small 
number of precincts placed inside or outside o f the Twelfth 
District. Without even addressing the other factors that state 
legislators took into account in the redistricting process, the 
court concluded from its limited factual recitation not only that 
the 1997 Remedial Plan was race-conscious, but also that it 
must be struck down as motivated predominantly by racial 
considerations. Indeed, the district court ordered that, in 
designing its remedy, the State must limit the factors it could 
use in its redistricting to those other than race, characterizing



19

only those non-racial factors as proper. See NC. J.S. App. at 
29a.

This ruling amounted to a holding, contrary to this 
Court’s repeated admonitions, that race-conscious districting is 
inherently unconstitutional. Such a rule would eviscerate the 
protections against minority vote dilution provided by Section 
2, and is flatly inconsistent with Shaw v. Reno and its progeny, 
as well as this C ourt’s precedent in this case. The judgment 
below must, therefore, be reversed.

A. The court erred by holding in effect that 
race-consciousness triggers “strict scrutiny.”

This Court has held that Appellees’ evidentiary burden 
in this case is to “prove that District 12 was drawn with an 
impermissible racial motive -  in this context, strict scrutiny 
applies if race was the ‘predominant factor’ motivating the 
legislature’s districting decision.” Huntv. Cromartie, 526 U.S. 
at 547. To carry this burden, Appellees must show 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, 517 U.S. at 952 {quotingMiller, 515 U.S. 
at 913), and “that other, legitimate districting principles were 
‘subordinated’ to race.” Bush, 517 U.S. at 958. See generally 
id. at 259-68. Merely showing that the State o f North Carolina 
conducted the redistricting process with some “consciousness 
o f race” is not sufficient. See Bush, 517 U.S. at 1051. Rather, 
this Court has acknowledged the reality that a state “‘always is 
aware o f race when it draws district lines, just as it is aware o f 
age, economic status, religious and political persuasion, and a 
variety o f other demographic factors” but held that “[this] sort 
o f  race consciousness does not lead inevitably to impermissible 
race discrimination’” United States v. Hays, 515 U.S. 737, 745



2 0

(1995) (citation omitted) (emphasis in original). As Justice 
O’Connor has observed:

States may intentionally create majority-minority 
districts and may otherwise take race into consideration, 
without coming under strict scrutiny. Only if traditional 
districting criteria are neglected, and that neglect is 
predominantly due to the misuse o f race, does strict 
scrutiny apply.

Bush, 517 U.S. at 993 (O’Connor, J., concurring) (emphasis in 
original).

The burden that Appellees carry in this case is heavy and 
cannot be met simply by pointing to evidence o f race- 
consciousness. In Shaw v. Reno, 509 U.S. at 653, this Court 
held that it would be the extraordinary case in which strict 
scrutiny would apply. Indeed, in Shaw, Miller, and Bush, the 
district courts applied strict scrutiny only after they determined 
that race played a predominant role in the design o f the districts 
at issue. Miller, 515 U.S. at 928 (O ’Connor, J., concurring); 
Shaw v. Hunt, 517 U.S. at 903; Bush, 517 U.S. at 952. And 
those determinations were not based upon mere “race 
consciousness.” For example, in Shaw v. Hunt, this Court 
found sufficient “direct evidence” that the State’s “overriding 
purpose” was to “create two congressional districts with 
effective black voting majorities” and that other considerations 
“came into play only after the race-based decision had been 
made.” Shaw v. Hunt, 517 U.S. at 906 (original emphasis 
omitted and emphasis added). In Miller, the State conceded 
that the district at issue was the “product o f a desire by the 
General Assembly to create a majority black district,” Miller, 
515 U.S. at 918 (emphasis added), and that the creation o f  the 
district “violate[d] all reasonable standards o f compactness and



2 1

contiguity.” Id  at 919. This Court has repeatedly recognized 
the reality o f race-consciousness during the redistricting process 
and has reserved strict scrutiny only for those circumstances 
where race predominated,13 and this principle has been 
consistently applied by various district and appellate courts that 
have considered constitutional challenges based upon Shaw. 
See, e.g., Chen v. City o f Houston, 206 F.3d 502 (5th Cir. 
2000); Theriot v. Parish o f Jefferson, 185 F.3d 477 (5th Cir. 
1999); Clarkv. Calhoun County, 88 F.3d 1393 (5thCir. 1996); 
DeWitt v. Wilson, 856 F. Supp. 1409 (E.D. Cal. 1994), aff'd, 
515 U.S. 1170 (1995).14

This Court has also now clearly defined in this case the

13 See, e.g.. Bush, 517 U.S. at 958 (“Strict scrutiny does not apply 
merely because redistricting is performed with consciousness o f race. . . . 
Nor does it apply to all cases of intentional creation of majority-minority 
districts”) (citations omitted); Lawyer v. Department o f Justice, 521 U.S. 
567 (1997) (upholding the constitutionality' of a Florida state legislative 
districting plan that was drawn with conscious consideration of race to 
settle litigation challenging prior plan, creating majority-minority district 
that afforded minority voters opportunity to elect candidates o f choice that 
was somewhat irregularly shaped and that split county and city 
boundaries); Abrams v. Johnson, 521 U.S. 74 (1997) (approving 
congressional districting plan for Georgia having majority-African- 
American district); King v. State Board o f  Elections, 522 U.S. 1087 
(1998) (per curiam) (summarily affirming district court ruling upholding 
the constitutionality of Illinois’ Fourth Congressional District).

14A further understanding of the De Witt decision can be gained by 
reviewing the decision o f the California Supreme Court that created the 
redistricting plans challenged m De Witt. See Wilson v. Eu, 823 P.2d 545, 
563-64,582,583-84,594,1 Cal. 4th707,746 ,775,776,790, 4 Cal. Rptr. 
2d 379, 397-8, 416, 417-8, 428 (1992) (describing the various special 
efforts taken to create districts that would comply with the Voting Rights 
Act).



2 2

proper role race may play in a state meeting its various political 
objectives during the redistricting process, holding that “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 o f  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).

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

Huntv. Cromartie, 526 U.S. at 542.

Appellees’ evidentiary presentation below was 
completely inadequate to satisfy this Court’s stringent burden 
o f proof.15 As Judge Thornburg observed in dissent:

15Appellees introduced one e-mail from a staff member of the 
General Assembly, referring to a modification moving “black voters” into 
the Twelfth District, which appellees have characterized as “smoking gun” 
evidence establishing the predominance of legislative racial motivations. 
However, as Judge Thornburg found below, “this anecdotal evidence does 
little more than reinforce what is already known, and what is not 
constitutionally impermissible: North Carolina’s legislative leaders were 
conscious of race, aware o f racial percentages, on notice o f the potential 
constitutional implications o f their actions, and generally very concerned 
with these and every other political and partisan consideration which 
affected whether or not the redistricting plan would pass.” NC. J.S. App.



23

Plaintiffs [sic] evidence does nothing more than address 
the admitted fact that legislative leaders were aware of 
the race issue, or perhaps that the Twelfth District could 
have possibly been drawn in a different way to 
accomplish the legislature’s stated goals. Such evidence 
does not meet Plaintiffs’ heavy burden of showing by a 
preponderance o f the evidence that racial motives 
predominated in substantial disregard o f legitimate 
districting criteria.

NC. J.S. App. at 55a.

The court below failed to make findings comparable to 
those that led this Court to invalidate redistricting plans in Shaw 
and Miller. The lower court also made no findings that would 
permit it to assess the interrelationship between race and politics 
as required by this Court in Hunt v. Cromartie. In fact, the 
record below demonstrated that race did not predominate in the 
creation o f the district. The Twelfth District in the 1997 
Remedial Plan is significantly more compact geographically than 
it was in the 1992 Plan. The new Twelfth District contains 
parts o f six counties, rather than ten, and it does not have any 
areas o f only “point contiguity.” In the 1992 plan, the Twelfth 
District’s boundaries divided 48 precincts, while the 1997 
Remedial Plan divides only one. The boundaries o f the new 
Twelfth District were determined by partisan considerations and 
a desire to have an urban, Democratic district in the Piedmont

at 48a. Thus, given that context, the language o f the e-mail offers little to 
assist appellees in meeting their substantial burden o f proof in this case of 
showing that race was the predominant factor in the 1997 redistricting and 
“certainly do[es] not amount to the ‘smoking gun’ status which Plaintiffs 
would have the Court believe.” Id.



2 4

region. See Jt. App. at 180-182,241; NC. J.S. App. at 81a-87a; 
Id. at 13 8a-140a. While the African-American voting-age 
population was originally 53.34 percent in the 1992 plan, it was 
reduced to 43.36 percent in the 1997 Remedial Plan. NC. J.S. 
App. at 53a, 77a-79a.

Moreover, the record below demonstrates that the 
voters in the Twelfth District constitute a distinct community of 
interest and that this was evident to the General Assembly when 
it created the district. See Jt. App. at 383; NC. J.S. App. at 
53a-54a, 84a. As Judge Thornburg noted in dissent, “Senator 
Cooper felt that maintaining this community o f interest was one 
o f the legislature’s motivating factors, and indeed, the 1997 
Twelfth District as drawn reflected and protected the clear 
community o f  interest in the Piedmont Crescent.” NC. J.S. 
App. at 54a.

P roof that, in addition, the Twelfth District included 
strong Democratic performing precincts, that a number o f these 
precincts were majority African-American, and that those 
leading the redistricting process were aware o f these facts, does 
not establish a violation o f the Constitution. For the lower 
court essentially to hold otherwise vitiates this Court’s ruling on 
the earlier appeal in this case that permits a state to meet its 
partisan political goals even if it is aware o f the race o f the 
voters as it undertakes this process. The decision below would 
automatically render any plan drawn with even the mere 
awareness o f  race unconstitutional, and therefore, it should be 
reversed.



2 5

B. The court erred by not giving proper weight 
to the political considerations that led to the 
creation of the Twelfth District.

By ignoring this Court’s precedents, including the law 
o f this case, Hunt v. Cromartie, the court below also failed to 
give any consideration -  much less appropriate weight -  to the 
important political realities confronted by the General Assembly 
during the redistricting process. Although the General 
Assembly’s primary goals in enacting the 1997 Remedial Plan 
were to correct the prior constitutional violation found by this 
Court in Shaw v. Hunt and to preserve the congressional 
delegation’s partisan balance, the State could not achieve these 
goals in a political vacuum. As the testimony showed, among 
other political considerations, legislators were concerned that 
the plan developed be racially fair. Jt. App. at 211-212, 241, 
384-386. This was not only important given the history o f 
political exclusion and discrimination that was in the record 
before the General Assembly members, but it was also necessary 
to achieve the political goal o f securing enough support for the 
1997 Remedial Plan from among African-American political and 
legislative leaders in the General Assembly. See Jt. App. at 241. 
Such considerations do not relegate a redistricting plan to strict 
scrutiny. See Lawyer, 521 U.S. at 581 (upholding the 
constitutionality o f a majority-minority district that district court 
found “‘offers . . . any candidate, without regard to race, the 
opportunity’ to seek and be elected to office”) (quoting and 
citing Scott v. United States, 920 F. Supp. 1248, 1256 (M.D. 
Fla. 1996)); DeWitt, 856 F. Supp. at 1413-14 (finding that the 
California redistricting plan, containing intentionally created 
majority-minority districts, was not an unconstitutional racial 
gerrymander because the plan “evidences a judicious and proper



2 6

balancing of the many factors appropriate to redistricting, one 
o f which was the consideration o f the application o f the Voting 
Rights Act’s objective o f assuring that minority voters are not 
denied the chance to effectively influence the political process”).

In rejecting the political rationale for the creation o f the 
Twelfth District, the lower court established an invidious racial 
double standard. Appellees argued, and the lower court held, 
that the inclusion o f substantial numbers o f  African-American 
voters in the Twelfth District automatically indicates an illegal 
racial purpose. The lower court ruling also tacitly endorses a 
principle that Appellees raised at trial and throughout this case: 
it is constitutionally suspect for the state to  attempt to preserve 
the core o f former Districts 1 and 12 in an attempt to protect 
the incumbency o f the representatives o f  those districts. See, 
e.g., Trial Transcript, Volume I, December 1, 1999 at 557 and 
602; Final Pretrial Order at 10. Judge Thornburg observed:

Plaintiffs contend that any district which is based on the 
‘footprint’ o f a prior unconstitutional district is 
inherently invalid. This suggests that the legislature 
must begin with a completely clean slate in order to 
wipe away the vestiges o f prior unconstitutional 
districts. . . .

NC. J.S. App. at 44a.

It is undisputed that “every one o f 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. The political 
decision to include the best performing Democratic precincts 
into districts o f Democratic incumbents in an effort to preserve 
the incumbency o f the existing Democratic members o f



2 7

Congress was replicated throughout the 1997 redistricting 
process. See, e.g., Jt. App. at 180-182, 211, 241. Indeed, it is 
undisputed that the State sought to protect all incumbent 
members o f its congressional delegation, white and African 
American. Id. Ignoring this political reality would have proved 
fatal to the plan, as Judge Thornburg concluded:

[Requiring a legislature to start completely from 
scratch makes their task nearly impossible because 
congressional incumbents and state legislators will 
invariably demand the preservation o f as much o f the 
geographic core of districts as possible, a political 
reality explained in testimony at the trial. Indeed, the 
undersigned can think o f no reason why a legislature 
may not simply address the offensive aspects o f  an 
unconstitutional district, cure those defects, and thereby 
create a constitutional district.

NC. J.S. App. at 44a-45a.

Since ten o f twelve members o f that delegation were 
white, incumbency protection in and o f itself hardly suggests 
that racial motives were predominant. Invalidating the State’s 
political decision to secure the reelection chances also o f the 
Twelfth District’s incumbent places limits on the electoral 
choices of the Twelfth District’s African-American Democrats 
to elect their candidate of choice, a restriction inapplicable to 
the majority of the State’s other voters. Moreover, to disregard 
the protection o f the incumbent only in the Twelfth District 
would deprive the voters of that district -  and only those voters 
in the state -  o f the opportunity to maintain representation by 
an experienced legislator if they chose to do so. Thus, the 
lower court and Appellees urge the adoption o f a double 
standard that is intolerable under the decisions o f  this Court.



2 8

See, e.g., Miller v. Johnson, 515 U.S. at 928 (O ’Connor, J., 
concurring); Shaw v. Hunt, 517 U.S. at 996 (Kennedy, J., 
concurring).

Indeed, as this Court has now repeatedly held, the 
standard adopted by the lower court is not correct. Legislative 
consideration o f a non-racial factor, such as incumbency 
protection, that is correlated with race is insufficient to 
demonstrate predominance unless the court finds that it was a 
proxy for race. See Hunt v. Cromartie, 526 U.S. at 542; Bush 
v. Vera, 517 U.S. at 967-69. The court decision below was 
erroneous both as a matter o f  fact and as a matter o f  law and 
should be reversed.

EL The District Court Erred by Failing to Assess
Whether the District was Narrowly Tailored to
Serve a Compelling Justification

Even if the district court was correct to find that race 
was the predominant factor affecting the drawing o f  the Twelfth 
District, the court erred by failing to consider whether the 
district was narrowly tailored to achieve an identified 
compelling governmental interest.

As discussed supra, the district court concluded that, in 
drafting the 1997 Remedial Plan, the State disregarded 
traditional redistricting criteria and found that race was the 
predominant factor in the creation of the Twelfth District. 
However, the court never engaged in the necessary analysis to 
assess whether the Twelfth District was narrowly tailored to 
satisfy an identified compelling justification. Instead, the court 
simply announced that “no evidence o f a compelling state 
interest in utilizing race to create the new 12th District has been



2 9

presented.”16 NC. J.S. App. at 29a. However, that was 
apparently irrelevant to the lower court, since it then determined 
that “even if  such an interest did exist, the 12th District is not 
narrowly tailored and therefore cannot survive the prescribed 
‘strict scrutiny.’” Id. (emphasis added). Since the question of 
narrow tailoring can be determined only in relationship to the 
compelling interest to be served, this demonstrates that the 
lower court never conducted the required analysis to  determine 
whether the Twelfth District was narrowly tailored to satisfy a 
specified compelling justification.

This error is most directly analogous to that which some 
district courts have made in applying Section 2. After 
determining whether the plaintiffs in a Section 2 case have met 
their burden o f demonstrating the existence o f the three primary 
Gingles factors, courts are required to determine whether, in 
light o f those factors and the totality o f circumstances, the 
electoral system violates Section 2 because black voters enjoy 
“less opportunity than other members o f the electorate to 
participate in the political process and to elect representatives 
o f their choice.” 42U.S.C. § 1973; Johnson v. De Grandy, 512 
U.S. 997 (1994). It is error for a court to ignore this critical 
step, either by referring only to the analysis in passing or by 
hypothesizing that, even were it to have conducted the analysis, 
it would have ruled against plaintiffs. Because o f the 
importance o f this analysis to the Section 2 inquiry, the Courts 
o f Appeals have held that the “totality” inquiry cannot be 
carried out in dicta. See Jenkins v. Red Clay Consolidated 
School District Bd. o f Ed., 4F .3d  1103, 1135 (3rd Cir. 1993)

16This finding is clearly erroneous in light o f  the parties’ 
stipulation referred to infra.



3 0

(criticizing “the conclusory ( ‘even i f )  analysis engaged in by the 
district court”), cert, denied, 114 S. Ct. 779 (1994). See also 
Clark v. Calhoun County, 21 F.3d 92, 97 (5th Cir. 1994) 
(reversing and remanding district court decision which 
erroneously addressed Gingles factors, despite district court’s 
statement that it would have ruled against plaintiffs under 
totality o f circumstances even if plaintiffs had satisfied Gingles 
factors).

Similarly, under the Shaw jurisprudence, a district 
court’s inquiry does not end when it finds that race 
predominated in the redistricting process. This Court’s Shaw 
jurisprudence requires a court to assess whether there was a 
compelling justification for a plan drawn with race as a 
predominant factor, and whether the plan was narrowly tailored 
to  serve that justification. See, e.g., Shaw v. Hunt, 517 U.S. at 
914 (assuming without argument that Ҥ 2 could be a 
compelling interest”); Miller, 515 U.S. at 915 (race- 
consciousness in drawing district lines would not alone render 
a districting plan presumptively unconstitutional). The lower 
court erred by discontinuing its inquiry once it concluded that 
race predominated in the creation o f the Twelfth District.

The trial record indicates that, in creating the plan, the 
legislature was aware o f North Carolina’s long history o f 
official discrimination against African-Americans and their 
exclusion from the political process due to state and private 
action. In addition, plaintiffs stipulated to this history and its 
lingering effects. See NC. J.S. app. at 34a. Moreover, there 
was evidence that the State sought to “provid[e] minority voters 
a fair opportunity to elect representatives o f their choice in at 
least two districts (Districts 1 and 12),” Jt. App. at 384, and that 
the Twelfth District does afford African-American voters a fair



31

chance to elect their candidate o f choice. See Jt. App. at 386. 
The district court erred in not engaging in the rigorous strict 
scrutiny inquiry required by this Court.

EDI. The District Court Erred in Ordering Redistricting
on the Eve of the Post-2000 Census Redistricting
Cycle

Despite the urgency of the State’s election schedule, the 
district court failed to issue its discovery schedule until August 
23, 1999, three months after this Court’s prior decision in this 
case. Although the district court was aware that the State’s 
election process had begun, it nevertheless delayed over three 
months after an expedited trial to issue its opinion. In the time 
that the trial court took to issue its opinion, the State’s election 
process was fully engaged. Any remedy in this case that 
requires redistricting threatens to disrupt the on-going election 
process, perhaps requiring new primary and general elections. 
Appellees have indicated clearly that they will seek just such a 
remedy. See, e.g., Appellees’ Motion to Expedite Schedule for 
Appeal. The injury from disrupting election processes is 
significant and has been well documented by this Court and the 
federal trial courts. See, e.g., Reynolds v. Sims, 377 U.S. 533 
(1964).17 Moreover, the injury to minority voters which would

17These principles have guided federal trial courts in both 
reapportionment and vote dilution cases. See, e.g., Diaz v. Silver, 932 F. 
Supp. 462, 466 (E.D.N.Y. 1996) (preliminary injunction denied to avoid 
harming public interest where elections scheduled in a few months, even 
though court found likelihood of success on Shaw claim and irreparable 
injury to plaintiffs); Cardona v. Oakland Unified School District, 785 F. 
Supp. 837, 843 (N.D. Cal. 1992) (court refused to enjoin election where 
primary “election machinery is already in gear,” including the passage of 
deadline for candidates to establish residency and start of candidate



3 2

result from disruption o f the election schedule in this case is 
especially grave. See Smallwood Appellants’ Application to 
Stay Decision o f the United States District Court for the 
Eastern District ofNorth Carolina Pending Appeal at 2-6.18 See 
also Reynolds, quoted supra, 377U.S. at 585 (“[U]nder 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 withholding the granting o f 
immediately effective relief in a legislative apportionment case, 
even though the existing apportionment scheme was found 
invalid”). See also Watkins v. Mabus, 502 U.S. 954 (1991); 
Republican Party o f Shelby County v. Dixon, 429 U.S. 934 
(1976); Ely v. Klahr, 403 U.S. 108 (1971).

nominating period); Republican Party o f Virginia v. Wilder, 774F . Supp. 
400 (W.D. Va. 1991) (injunction denied in case with “uncertain cause o f  
action with only possible irreparable harm” and where time for election 
was close and there was danger of low voter turnout if  election postponed); 
Cosner v. Dalton, 522 F. Supp. 350 (E.D. Va. 1981) (three-judge court) 
(use o f malapportioned plan not enjoined where elections were two months 
away); Shapiro v. Maryland, 336 F. Supp. 1205 (D. Md. 1972) (court 
refused to enjoin election where candidate filing deadline was imminent and 
granting relief would disrupt election process and prejudice citizens, 
candidates and state officials); Sincock v. Roman, 233 F. Supp. 615 (D. 
Del. 1964) (three-judge court) (per curiam) (enjoining election would 
result in disruption in ongoing election process which would cause 
confusion and possible disenfranchisement oisoters),M eeks v. Anderson, 
229 F. Supp. 271, 274 (D. Kan. 1964) (three-judge court) (court held 
malapportioned districts unconstitutional but concluded that the “ends o f  
justice” would “best be served” by permitting elections to proceed).

18The harms that could result from such disruption prompted the 
three-judge district court in the earlier litigation in Shaw v. Hunt litigation 
to deny injunctive relief to plaintiffs in 1996, where only a few months 
remained before the general election.



33

Moreover, in less than one year, the Census Bureau will 
release the 2000 Census data and the State will begin the 
redistricting process anew, a process that inevitably will result 
in at least some Congressional districts being redrawn. To 
require the State to engage in the disruptive process now only 
to repeat it in less than a year would be unduly burdensome and 
duplicative. C f Maxwell v. Foster, No. 98-1378, (W.D. La. 
Nov. 24, 1999) (district court granting State o f Louisiana’s 
motion for summary judgment and finding that “rapid-fire 
reapportionment immediately prior to a scheduled census would 
constitute an undue disruption of the election process, the 
stability and continuity o f the legislative system and would be 
highly prejudicial, not only to the citizens o f Louisiana, but to 
the state itself’), attached to the Smallwood Appellants’ 
Application to Stay Decision o f the United States District Court 
for the Eastern District o f North Carolina Pending Appeal as 
Appendix E. Accordingly, courts have repeatedly upheld 
district court decisions to either deny claims brought in close 
proximity to the decennial census or permit elections to be held 
under plans deemed unconstitutional when the release o f new 
decennial census data will inevitably result in the creation o f a 
new redistricting plan. See, e.g., Ely, 403 U.S. at 114-115 
(affirming district court decision to permit elections to proceed 
under plan held to be unconstitutional when release o f 1970 
census data would result in creation o f new reapportionment 
plan); White v. Daniel, 909 F.2d 99, 103 (4th Cir. 1990) (“A 
challenge to a reapportionment plan close to the time o f a new 
census, which may require reapportionment, is not favored”); 
Maryland Citizens for a Representative Gen. Assembly v. 
Governor o f Maryland, 429 F.2d 606, 610 (4th Cir. 1970) 
(challenge to apportionment plan dismissed because potentially



3 4

would require creation o f remedial plan in close proximity to 
release o f  census data and next redistricting).19

In Ely, this Court held that a district court did not err in 
allowing elections to proceed under a plan determined to  be 
unconstitutional because redistricting based on decennial census 
data was imminent. Ely, 403 U.S. at 114. In that case, 
plaintiffs challenged the constitutionality o f  Arizona’s state 
legislative districts. Id. at 111. After several attempts by the 
legislature to enact a constitutionally valid plan, the district 
court ordered that the state conduct the next elections under the 
unconstitutional plan, reasoning that another plan could not be 
created without delaying the primary elections. Id. at 113. In 
affirming the district court decision, this Court relied on the fact 
that the next census would result in the creation o f a new 
reapportionment plan drawn according to  the new decennial 
census data. Id. at 114-115.

As the next redistricting cycle is imminent, if this Court 
were to affirm the decision below, allowing the state to proceed 
with elections under the 1997 Remedial Plan would not 
permanently prevent plaintiffs from acquiring the remedy they 
seek: a new redistricting plan. If  appellees are not satisfied 
with the new plan, they may seek to modify it through 
participation in the political process or challenge its 
constitutionality subsequently. The reasoning of the Seventh

19In making its ruling in Maryland Citizens, the Fourth Circuit 
compared the facts in that case to those in Chavis v. Whitcomb, 396 U.S. 
1064 (1970) in which this Court granted a stay, permitting elections to 
proceed under a plan held to be unconstitutional. The Fourth Circuit panel 
reasoned, “If relief was appropriately withheld in Chavis, afortiori, it must 
be withheld in this case.” Maryland Citizens, 429 F. 2d at 611.



35

Circuit decision in Dickinson v. Indiana State Election Bd  ,933 
F.2d 497, 502 (7th Cir. 1991) is directly on point:

The district court also concluded that, on equitable 
grounds, the pending 1991 redistricting (based on the 
1990 census) makes entry o f relief inappropriate. The 
district court did not err in making this finding. The 
legislative reapportionment is imminent, and Districts 49 
and 51 may well be reshuffled. The legislature should 
now complete its duty, after which the plaintiffs can 
reassess whether racial bias still exists and seek 
appropriate relief.

This is consistent with the most recent decisions o f district 
courts that have considered constitutional challenges to 
redistricting plans late in the decade. See, e.g., Maxwell v. 
Foster, supra, p. 33.

Therefore, the district court ruling ordering redistricting 
and new elections should be reversed. Furthermore, even if this 
Court should hold the Twelfth District unconstitutional, rather 
than requiring the State to engage in a disruptive redistricting 
process that will invariably produce districts drawn according 
to inaccurate data, this Court should act consistent with well- 
established precedent to not order a new election as part o f any 
remedy, permitting the State to proceed with the 2000 elections 
under the 1997 Remedial Plan or allowing those results to stand 
should the elections be held before the final disposition o f this 
case before this Court.



3 6

CONCLUSION

For the foregoing reasons, this Court should reverse the 
judgment of the district court and enter judgment for appellants.

Respectfully submitted,

E l a in e  R. Jo n e s  
Director-Counsel 

N o r m a n  J. Ch a c h k in  

Ja c q u e l in e  A. B e r r ie n  

NAACP Le g a l  D e f e n se  

& E d u c a t io n a l  Fu n d , In c . 
99 Hudson Street, Suite 1600 
New York, NY 10013 
(212) 965-2200

T o d d  A. C o x *
NAACP Leg a l  D e fe n se  
& E d u c a t io n a l  Fu n d , In c . 
1444 Eye Street, NW 
10th Floor
Washington, DC 20005 
(202) 682-1300

A d a m  Stein

Fe r g u s o n , Ste in , W a l l a s , 
Ad k in s , Gr e s h a m  & 

Su m t e r , P.A.
312 West Franklin Street 
Chapel Hill, NC 27516 
(919)933-5300

* Counsel o f Record

Attorneys for Smallwood Appellants