Plaintiffs’ Reply to Defendants’ Response on Scheduling

    DEC-01-98 TUE 11:38 NAACP LDF DC OFC FAX NO. 2026821312 P, 02/23 

70 
n2 (18 2 

Poo Sem 

i 
qt - t17- / 73 

INTER-STATEMENT OF 

ESTIONS PRESENTED 

as appellants did not raise the issue before 
Ige district court below, is appellant’s claim 
urt should have placed on the State the 

vei we. -- JTOViNg that race did not predominate in the 

creation of the 1998 remedial reapportionment plan, 
which the legislature enacted to cure the constitutional 
violation found by the district court, in an earlier plan, 
properly before this Court? 

2. Assuming that claim is properly before this Court, did 
the district court error by placing on the plaintiffs the 
burden of proving that race predominated in the 
creation of the remedial apportionment plan enacted by 
the legislature to cure the constitutional violation found 
by the three-judge district court in the 1997 
congressional reapportionment plan? : 

3. Without regard to the burden of proof, did the district 
court err in concluding that the 1998 remedial plan -- 
cnacted by the North Carolina General Assembly to 
cure the specific constitutional violation that the court 
found to exist in North Carolina’s 1997 congressional - 
reapportionment plan -- was constitutional? 

 



   

    
    
            
    
            
            
    

  

"  DEC-01-98 TUE 11:38 We DC OFC FAX NO. ne P. 03/23     
MOTION TO AFFIRM OR, IN THE ALTERNATIVE, 

TO DISMISS, OF APPELLEE-INTERVENORS 

Pursuant to Rule 18.6 of the Rules of the Supreme 
Court of the United States, Appellee-Intervenors Alfred 
Smallwood, David Moore, William M. ITodges, Robert L. 
Davis, Jr., Jan Valder, Bamey Offerman, Virginia Newell, 
Charles Lambeth and George Sunkins (“Smallwood Appellees” 
or “Appellee-Intervenors”)' move that this Court summarily 
affirm the order sought to be reviewed” or, in the alternative, , 
dismiss the appeal on the ground that the questions raised by Hees 
appeal are so insubstantial as 10 require no further argument. 
The order on appeal is based on well-settled law established by 
this Court, and there is no conflict which requires this Court’s. 
resolution. 

STATEMENT OF FACTS 

This is an appeal of the Order of the three-judge United 
States District Court for the Eastern District of North Carolina, 
entered June 22, 1998, in Cromartie v. Hunt, approving North 
Carolina’s 1998 interim congressional reapportionment plan, 

1998 N.C. Sess. Laws, Ch. 2 (“1998 Interim Remedial Plan”) 
as a remedy for the specific constitutional violations it found to 
exist in the State’s 1997 plan in its April 3, 1998 Order and 
April 14, 1998 decision. The April Order and decision are 
unreported and appear at the Appendix to the Jurisdictional 

Statement on Behalf of the State of North Carolina in Hur v. 

Cromartie, No. 98-85 (“NC. J.S. App.”) at 45a and la, 

   
    
    
    
    
    
    
    
     

     

    

    

        
    

  

     
     
   

   

  

    

‘Smallwood Appellees were granted intervention as party- 
defendants by the court below on June 20, 1998, two days prior to the entry 
of the Order from which this appeal is sought 10 be prosecuted. They are, 
accordingly, proper Appellees in this Court. S. Cr. R. 18.2. 

    

2The Order of (he three-judge United States District Court for the 
Eastern District of North Carolina, dated June 22, 1998, is unreported and 
appears in the Appendix 10 Cromartie v. Hunt Appellants’ Jurisdictional 
Statement (“Appcllaats J.S. App.”) at 1a. 

       DEC Plo88 qa.47 2026821312



* DEC-01-98 TUE 11:38 ne DC OFC FAX NO. 2026821312 P. 04/23 i a 

  

2 

respectively.’ The April 1998 Order is the subject of a separate 
appeal before this Court, Hunt v. Cromartie, No. 98-85, 

On July 3, 1996, following the ruling of this Court in 
Shaw v. Hunt, 517 U.S. 899 (1996), three residents of Tarboro, 
North Carolina, who are among thc Appellants herein, filed the 
complaint in this action, Cromartie v. Hunt, challenging District 
1 of North Carolina’s 1992 congressional apportionment plan 
on the ground that it violated their equal protection nghts 
because race predominated in the drawing of the district. On 
July 11, 1996, the members of the Smallwood-Appellees group 
(three voters from the First District and six voters from the 
Twelfth District), sought to intervene in the Cromartie suit as 
defendants. 

A stay of the Cromartie litigation was entered pending 
completion of the remand proceedings in Shaw v. Iunf. On 
July 9, 1996 the same Tarboro residents who initiated the 
Cromartie suit joined with the original plaintiffs in Shaw 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. The Shaw case was 
dismissed by the three-judge court on September 12, 1997, after 
that court approved the 1997 Remedial Plan that had been 
enacted by the legislature. The Cromartie three-judge court 
lifted its stay of proceedings on October 17, 1997. On the same -_s 
day, two of the three original plaintiffs, along with four 3 

  

A complete recitation of the relevant facts may be found in the 
Stawemnent of the Case in the Brief of Appellant-Intervenors filed in Fun v. 

Cromartie. No. 98-85. 

“The Smallwood Appellees participated fully as intervenors in Shaw 
v. Hunt in the trial court and in this Court. including in the remedial 
proceedings which resulted in the approval by the Shaw court of the 1997 
Remedial Plan. 

Ee gl C8 14:4 2826821312 PAGE. 04 

 



 



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3 

residents of the redrawn District 12, filed an Amended 

Complaint in the Cromartie action, challenging the 1997 
Remedial Plan as a violation of the Equal Protection Clause and 
still seeking a declaration that District 1 in the 1992 Plan is 
unconstitutional. Within the time allowed for answering that 
amended complaint, the Smallwood Appellees 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. On April 3, 1998, 
that three-judge United States District Court for the Eastern 
District of 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 
of North Carolina to submit a schedule for the General 
Assembly to adopt a new redistricting plan and to hold elections 
under that plan. NC. J.S. App. at 45a. The district court issued 
its judgment on April 6, 1998. NC. J.S. App. at 49a. 

The State moved for a stay of 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 Appellees filed an amicus curiae 
memorandum in this Court in support of the application. This > 
Court denied the request for a stay on April 13, 1998. On April 
14, 1998, the district court issued an opinion explaining its April 
3, 1998 order.’ : 

  

On May 26, 1998, with their two prior unopposed intervention 
motions still pending, the Smallwood Appellees filed a third motion to 
intervene as defendants in the case. On June 20, 1998, aficr the deadline for 

filing a timely notice of appeal of the district court’s April 3, 1998 order and 
April 6. 1998 judgment, the district court ruled that the Smallwood 

Appellees were entitled to intervene as of right in this action. As the delay 

EC Q1 03 11:4 2026821312 PAGE. 83 

 



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4 

The district court directed the General Assembly to 
redraw the State congressional reapportionment plan within: 
thirty days to remedy the violations found by the court in the 
1997 Remedial Plan. On May 21, 1998, the General Assembly 

enacted the 1998 Interim Remedial Plan, and subsequently 
submitted it to the district court for approval together with 
documentary evidence describing the legislature’s goals and 
method of producing the plan. Plaintiff-appellants filed an 

opposition and objections to the 1998 Interim Remedial Plan 
with the court and the State filed a response. Plaintiff- 

appellants did not request a court hearing on the plan. Pursuant 
to Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c, the 
Department of Justice precleared the 1998 Interim Plan on June 
8, 1998. 

On June 22, 1998, the district court entered an order 
tentatively approving the 1998 Interim Remedial Plan and 
authorizing the State to proceed with the rescheduled 1998 
clections under that plan. Appellants J.S. App. at la. The 
district court noted its duty under this Court’s precedents to 
afford the State the first opportunity to cure the constitutional 
violation found by the court and acknowledged the limits this 
Court has placed on district courts in evaluating a remedial 
reapportionment plan, Appellants J.S. App. at 3a. Accordingly, 
the district court determined that “[b]ecause [it] held only that: of 
District 12 in the 1997 plan unconstitutionally used race as the -~ 
predominant factor in drawing District 12, the [c]ourt is now 

limited to deciding whether race was the predominant factor in 

  

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 Appclices filed in this Court on October 
2, 1958 a motion to intervene as Appellants in Aunr v. Cromarfie, No. 98- 
85. This Court granted the motion an October 19, 1998. Appellants filed 
briefs on the merits in No. 98-85 on November 10, 1998. 

a= 11: si: Tr got Todor La fg Cn 
Cs 11:48 Fed AT ve | so Tod TE A lo od om 

 



DEC-01-98 TUE 11:38 We DC OFC FAX NO. a P. 07/23 |    
5 

the redrawing of District 12 in the 1998 plan.” Jd. The district 
court found that, in enacting the 1998 Interim Remedial Plan, 
the General Assembly sought to “specifically address [the 
district court’s] concerns about District 12,” id, while 
“hop[ing] to change as few districts as possible, to maintain the 
partisan balance of the State’s congressional delegation, to keep 
incumbents in separate districts and preserve the cores of those 
districts, and to reduce the division of counties and cities, 

especially where the [district court] found the divisions were 
based on racial lines.” Jd. at 3a-4a, 

The district court concluded that “the General Assembly 
successfully addressed the concerns noted by the [c]ourt in its 
Memorandum Opinion for the purposes of the instant Order,” 
id. at 4a, and, “[t]hus, the 1998 plan includes a Twelfth 

Congressional District with fewer counties, fewer divided 
counties, a more ‘regular’ geographic shape, fewer divided 
towns, and higher dispersion and perimeter compactness 
measures.” Jd. The district court stated that “from the record 

now before [it],” id. at 3a, “race cannot be held to have been the 
predominant factor in redrawing District 12.” Id. Referring to 
its earlier April 3, 1998 Order and April 14, 1998 decision, the 
district court noted that it was not ruling on the constitutionality 
of the revised District 1, and it directed the parties to proceed 
with discovery and trial accordingly. Jd. at Sa. The district 
court specifically “reserve[d] jurisdiction” to reconsider its 

ruling regarding the constitutionality of District 12 of the 1998 
Interim Remedial Plan “should new evidence emerge.” Jd. 

SUMMARY OF ARGUMENT 

In approving the 1998 North Carolina Congressional 
Redistricting Plan (“1998 Interim Remedial Plan”) as a remedy 
to the constitutional violation it found in the 1997 plan, the 
court below acted in gecord with this Court's long-standing, 
well-settled precedents. decision was not clearly erroneous K 

and should be affirmed, oF in the alternative, this appeal should 

DEC (A193 11:43 2826821312 PAGE. B87 

 



DEC-01-98 TUE 11:40 ne DC OFC FAX NO. 2026821312 P. 08/23 

  

be dismissed. 

First, Appellants argue that the district court erred in 
placing on them the burden of proving that race predominated 
in the creation of 1998 Interim Remedial Plan. However, 

despite raising a number of objections to the plan before the 
court below, Appellants failed to raise before the district court 
the issue of which party should bear the burden of proof at the 
remedial stage and, indeed, assumed the burden of proving that 
race predominated in the creation of the plan. As Appellants 
failed to raise the issue of what party should bear the burden of 
proof and neglected to object to the district court’s assessment 
of burdens, the issue is not properly before this Court. 

Nevertheless, even if Appellants have preserved this 
claim, it is insubstantial. It is well-settled that, in cases such as 
this, where plaintiffs challenge the constitutionality of a 
districting plan under the Fourteenth Amendment jurisprudence 
established by this Court in Shaw v. Reno and Miller v.. 
Johnson, the plaintiff bears the burden of proving that race 
predominated the redistricting process. Moreover, consistent 
with this Court's precedents, this burden does not shift during 
the remedial phase of such a challenge brought under the Shaw 
regime. Appellants offer no principled reasoning for 
abandoning this Court’s holding regarding burdens of proof 
except that it would be consistent with the manner in which - 

burdens are allocated in de jure school segregation cases. 
However, this analogy is tenuous, as school desegregation cases 

arise in a unique context that contrasts with the circumstances 
that attend redistricting cases and challenges brought under 
Shaw and its progeny. Since Appellants’ theories conflict with 
this Court’s regime for allocating burdens of proof in 
Fourteenth Amendment challenges such as this case, and 

because Appellants demonstrate no meaningful rationale for 
altering that structure, Appellants’ claim is insubstantial. 

Second, Appellants cannot show that the court below 

DEC 81 ’S8 11:49 2826821312 PAGE. G8 

 



  

   

     

    

       

    
    
    
    
    
    
    
    
    
    
    
    
    
    

    
    
    
    
        
      

        
    
    

      
     

    

DEC-01-98 TUE 11:40 a DC OFC FAX NO. Y P.09/23 ;     
7 

    

erred in holding that race was not the predominant factor in the 
creation of the new Twelfth Congressional District in the 1998 

Interim Remedial Plan. Appellants argue that the 1998 Interim 
Remedial Plan must be declared unconstitutional because it was 
the “fruit of the poisonous tree” of the 1992 and 1997 North 
Carolina reapportionment plans. In essence, Appcllants assert 
that a State remedying a Shaw violation is required to do. 
significantly morc than correct the constitutional defect found 
in a challenged district and must abandon every feature of the 
challenged plan and construct a new plan without regard to 

traditional districting concerns such as the partisan political 
makeup of the State’s congressional delegation, incumbent 
protection, and avoiding unnecessary disruption of communities 
of interest. Appellants’ theory is fundamentally at odds with 
this Court’s precedents, finding no support in Shaw or its’ 
progeny or in the case law defining how courts evaluate 
remedial redistricting plans. According to these precedents, to 
the extent that the 1998 Interim Remedial Plan did not violate 
any federal or state constitutional or statutory requirements, the 

district court was bound to approve the plan. Appellants cannot 
show that this decision was clearly erroneous. 

ARGUMENT 

Appellants’ Burden of Proof Argument does not 

warrant this Court’s Review at 

A. Appellants failed to raise their burden of 
proof claim hefore the three-judge district 

court and have, therefore, waived it 

Appellants claim that the State “should bear the burden. 
to establish that race was not the predominant motive; and the 
burden should not have been placed on the plaintiffs to establish 
that race still predominated in drawing District 12.” Appellants’ 
Jurisdictional Statement (“Appellants J.S.”) at 16 (emphasis in 
the original). Appellants’ jurisdictional statement details all of 

11:48 2828821312     DEC g1.¢8¢5



DEC-01-98 TUE 11:40 “eo DC OFC FAK NO. 2026821312 P. 10/23 

  

8 

their objections to the 1998 Interim Remedial Plan that were 
presented to the court below. Appellants J.S. at 5, 11-15. 
However, Appellants never raised before the district court the 
issue of which party should bear the burden of proof at the. 
remedial stage. In fact, Appellants assumed the burden of 
proving that race predominated in thc creation of the plan, 

making arguments, similar to the ones raised here, that the State 
failed to remove from thc plan the “vestiges” of the prior 
discrimination and that the plan is the “fruit of the poisonous 
tree” of the 1992 Plan and the 1997 Remedial Plan. 
Significantly, Appellants did not bring to the attention of the 
court below, for example by filing a motion pursuant to Fed. R. 
Civ. P. 59 to alter or amend the judgment, their contention that 

the burden of proof had been misallocated. Since Appellants 
failed to raise the issue of what party should bear the burden of 
proof and neglected 10 object to the district court’s assessment 
of burdens, the issue is not properly before this Court. See, 

e.g., Davis v. United States, 495 U.S. 472, 489 (1990); 
Breininger v. Sheet Metal Workers, 493 U.S. 67, 94 n.18 

(1989); Solorio v. United States, 483 U.S. 435, 451 n.18 
(1987); Berkemer v. McCarty, 468 U.S. 420, 443 (1984); Delta 

Airlines v. August, 450 U.S. 346, 362 (1981). 

B. Even if Appellants have preserved the issue, 
their claim is insubstantial 

Appellants claim that the district court erred in placing 
on them the burden of proving that race predominated in the’ 
creation of the 199% Interim Remedial Plan. However, it is 
well-settled that, in cascs such as this, where plaintiffs challenge 
the constitutionality of a districting plan under the Fourteenth 
Amendment jurisprudence established by this Court in Shaw v. 

  

“In making this argument. Appellants attempt to draw analogies ta 
criminal and school desegregation cases. As discussed below, these 
comparisons arc inappropriate. 

D B1 ’93 11:4 2026821312 PAGE. 10 

 



DEC-01-98 TUE 11:40 we DC OFC FAX NO. 2026821312 P, 1/23 in 

  

9 

Reno and Miller v. Johnson, “[t]he plaintiff bears the burden of" 
proving the race-based motive. . ..” Shaw v. Hunt, 517 U.S. 
899, 905 (citation omitted). See also Miller v. Johnson, 515 
U.S. 900, 916 (1995). 

This burden does not shift during thc remedial phase of 
such a challenge. In Scott v. United States, 920 F. Supp. 1248 
(M.D. Fla. 1996), aff'd sub nom. Lawyer v. Depariment of 
Justice, 521 U.S. 567 (1997), a three-judge District Court for- 
the Middle District of Florida considered a redistricting plan 
offered as a settlement of a lawsuit challenging, under Shaw, the 

constitutionality of Florida’s Senate District 21. The district 
court received and considered objections to the proposed 
remedial plan by one of the named plaintiffs, id. at 1235, and, 
“in accord with Miller,” evaluated the facts involving whether 
race predominated in the creation of the plan: 

‘The plaintiff's burden is to show . . . that race was the 
predominant factor motivating the legislature’s decision 
to place a significant number of voters within or without 
a particular district. To make this showing, a plaintiff 
must prove that the legislature subordinated traditional 
race-neutral districting principles . . . to racial 
considerations.’ 

Scott, 920 F. Supp. at 1253 (quoting Miller, 515 U.S. at 916). 
In its aftirmance of the decision, this Court did not disturb the . 
trial court's allocation of the burdens. Lawyer v. Department of 
Justice, 521 U.S. 567 (1997). 

Appellants offer no principled rationale for abandoning 
this Court’s holding regarding burdens of proof in the remedial 
phase of these cases. Appellants offer only a single ground for. 
shifting the burden of persuasion: that such a shift “is a logical 
corollary of the principle that ‘vestiges’ of the unconstitutional 

plan should be eliminated,” Appellants J.S. at 16, a principle that 
Appellants urge this Court to adopt on this appcal (and to which 

2826821312 PRGE.11 53
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0)
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AN
 

 



DEE-01-98 TUE 11:41 “ee DC OFC FAX NO. 2026821312 P.12/23    
10 

we respond infra). This overlooks the facts that de jure school 
segregation was nearly always a pervasive, systemwide policy® 
with tangible, long-lasting effects’ upon every aspect of the 
operations of the educational enterprise,'® and that this Court 

  

? Appellants also suggest that shifting the burden of persuasion is 
supported by decisions of this Court in criminal cases, in which “the burden 
of proof seems to have been placed on the prosecutor to demonstrate that the 
‘taint’ arising out of an illegal arrcst in violation of the Fourth Amendment 
had been eliminated prior to obtaining a confession” (Appellants J.S. at 16- 
17 0.18 (emphasis added). Appellants” hesitation in interpreting these 
decisions as embodying a special burden-shifting rule for “fruit of the 
poisapous tree” situations is well-advised, because they in fact apply only 
the ordinary principle that the party secking to introduce evidence is required 
to establish its admissibility. Indeed. this Court noted in Nix v. Williams. 
467 U.S. 431, 444 n.5 (1984), that although the prosecution must prove 
guilt beyond a rcasonable doubt, “admissibility [is determined] by a 
preponderance of the evidence.” 

8See Columbus Board of Educution v. Penick, 443 U.S. 449, 457- 
58 (1979) (“Proof of purposeful and effective maintenance of a body of 
separate black schools in a substantial part of the system itself is prima facie 
proof of a dual school system and supports a finding to this effect absent 
sufficient contrary proof by the [School] Board”): Keyes v. Schoo! District 
No. J, Denver, 413 U.S. 189, 201, 213 (1979) (same); id. at 208, 210, 213 
(finding of intentionally segregalive school board actions in meaningful 
portion of school system creates presumption that other segregation in ne 
system is not adventitous and shifts burden to school authorities to prove 

. that other scgregated schools are not the result of their scgregative actions). 

See, ¢.g., Swarm v. Charlotte-Mecklenburg Board of Education, 
402 U.S. 1, 21 (1971) (school construction practices by segregated systems 
“may well promote segregated residential pattems which, when combined 
with ‘neighborhood zoning,” further lock the school system into the mold of 
scparation of the races”). 

See Board of Education v. Dowell, 498 U.S. 237, 250 (1991) 
(“In considering whether the vestiges of de jure scgregation had been 
eliminated as far as practicable, the District Court should look not only at 

 



DEC-01-98 TUE 11:41 “ee DC OFC FAX NO. 2026821312 P.13/23    
11 

placed an affirmative duty to extirpate all vestiges of the de jure 
policy upon school districts only after a long period of. 

recalcitrant refusals to comply with the constitutional command 
of Brown v. Board of Education, 347 U.S. 483 (1954). 

Neither circumstance is present in this casc. First, 
constitutional or statutory violations are often limited to only 
certain districts in an overall apportionment plan. Thus, the 
entire political process has not been distorted in the manner or 
to the degree that occurred in the de jure school desegregation. 

context. Second, the “analytically distinct” cause of action 

upon which Appellants’ lawsuit is based was announced by this 
Court a little more than five years ago, in Shaw v. Reno, 509 

U.S. 630 (1993). By contrast, more than 15 years elapsed 
between this Court's decision in Brown and its holding in 

Swann, 

Because Appellants’ theories conflict with this Court’s 
carefully constructed regime for allocating burdens of proof in 
Fourteenth Amendment challenges that allege racial 
predominance in the redistricting process, and because 

  

student assignments, but ‘to every facet of school operations™), citing Green 
v. County School Board of New Kent County. 391 U.S. 430 (1968). 

See Swann, 402 U.S. at 13-14 (referring to dilatory tactics and -- 
resistance to Brown); Green, 391 U.S. at 438 (holding 14 years after Brown 
that “[tJhis deliberate perpetuation of the unconstitutional dual system [after 
Brown) can only have compounded the harm of such a system. Such delays 
are no longer tolerable™): Jd. at 439 (school boards have burden of 
establishing that their plans will work “now”). 

'2.0., Vera v. Richards, 861 F. Supp. 1304, 1345 (S.D. Tex. 
1994), aff'd sub nom. Bush v. Vera, 517 U.S. 952 (1996) (sustaining 
plaintiffs’ Shaw v. Reno challenge to only 3 of 24 questioned districts); 
Thornburg v. Gingles, 478 U.S. 30, 80 (1984) (affiming minority vote 
dilution findings of trial court with respect to some, but not all, districts in 

apportionment plan). 

EC 01 90 11:50 2826821312 PRGE.13 

 



DEC-01-98 TUE 11:41 “eo DC OFC FAX NO. 2026821312 P. 14/23    
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Appellants advance no meaningful justification for modifying 
that structure, Appellants’ claim 1s insubstantial. 

II. Appellants cannot demonstrate that the District 
Court’s Factual Finding that Race did not 
Predominate in the Creation of the 1998 Interim 
Remedial Plan was Clearly Erroneous : 

Appellants obviously disagree with the factual finding of 
the court below, based upon the evidence before it,* that racial 
considerations did not predominate in the North Carolina 

General Assembly’s construction of the 1998 Interim Remedial 
Plan, Because they are unable to show that the lower court’s 

finding on this record is “clearly erroneous,” see Fed. R. Civ. P. 
52(a); Thornburg v. Gingles, 478 U.S. aL 78, Appellants strain 
in their Jurisdictional Statement to identify some presumed legal 
error in the application of this Court’s precedents. This effort 
is unavailing, and the Court should either affirm the judgment 

below or dismiss the appeal for want of any substantial 
question. 

First, Appellants assert that this casc is similar to a 
school desegregation case and that the district court erred by 
not “assuring that the ‘vestiges’ of the unconstitutional 1992 
and 1997 racial gerrymanders were eliminated.” Appellants 1.S. 
at 7. Second, drawing an analogy between the 1998 
redistricting process and the use against criminal defendants of HE 
evidence which was illegally obtained, Appellants argue that the 
court below should have ruled that the 1998 Interim Remedial 

Plan is the “fruit of the poisonous tree” of the 1992 and 1997 
redistricting plans held to be unconstitutional. Appellants J.S. 
at 9. Finally, citing Village of Arlington Heights v. 

  

BThe district court explicitly “reserved jurisdiction with regard to 
the constitutionality of Dismrict 1 under this plan and as to District 12 should 

new evidence emerge.” Appellants J.S. App. at Sa. 

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'DEC-01-98 TUE 11:42 "'e DC OFC FAX NO. et P. 15/23 

13 

Metropolitan Dev. Corp., 429 U.S. 252, 265-66 (1977), 
Appellants contend that the tnal court erred by adhering to the 

standard announced by this Court in Shaw, and “requiring that 
plaintiffs in these ‘analytically distinct’ actions must demonstrate 

that race was the predominant motive for creating” a challenged 
district. Appellants J.S. at 10. Appellants instead argue in favor 
of a rule that would condemn any consideration of race in 
shaping a remedial plan. Jd." 

Appellants’ argument in support of reversal rely 
primarily upon two grounds: 1) as viewed by thc Appcllants, 

the Twelfth District in the 1998 Interim Remedial Plan is not 
“geographically compact”; and 2) the plan protected all of the 
State’s congressional incumbents and should be deemed 
constitutionally invalid becausc it extended such protection to 
the African American incumbent of District 12, as well as white 
incumbents. Neither of these factors constitutes proof of 

unconstitutionality under this Court’s existing precedents and 
they are, therefore, insufficient to meet the rigorous standard of 
proof required by this Court. 

In cases raising claims such as thc oncs raised by 

Appellants here, this Court has already defined an analytically 
distinct regime for determining whether a redistncting plan 
violates the Constitution. As pointed out above, Appellants’ 
burden in this case was to 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” in the 1998 
Interim Remedial Plan, Bush v. Vera, 517 U.S. at 951, quoting 
Miller v. Johnson, 515 U.S. at 913, and “that other, legitimate 

  

Appellants state that only if courts apply what they describe as the 
Arlington Heights test “can a district court be assured that the “taint” of an 
earlier racial gerrymander has been eliminated,” Appellants J.S. at 11, 
suggesting that this argument is a subpart of their “fruit of the poisunous 
tee” contention.  



   

  

DEC-01-98 TUE 11:42 i 3 DC OFC FAX NO. 2026821312 P. 16/23 

14 

districting principles were ‘subordinated’ to race.” Bush, 517 
U.S. at 958. See generally id. at 259-68. It is insufficient for 
Appellants to show, as they attempted Lv do here, merely that 
inclusion of African-American voters was one factor influencing 
the contours of a district in the plan adopted by the legislature 
— or even that the entire districting process was carried out 
“with consciousness of race,” Bush, 517 U.S. at 1651. As 
Justice O’Counnor 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 of race, does strict 
scrutiny apply. 

Bush, 517 U.S. at 993 (O’Connor, J., concurring) (emphasis in 
original); see also Uniied States v. Hays, 515 U.S. 737, 745 
(1995) (“We recognized in Shaw . . . that the ‘legislature 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. That sort of race 
consciousness does not lead inevitably to impermissible race 
discrimination’) (citation omitted) (emphasis in original). See 
also Smallwood Appellees’ Brief of Appellant-Intervenors in 
Hunt v. Cromartie, No. 98-85 at 32-37% 

  

BMoreover, legislative consideration of a non-racial factor that is 

correlated with race is insufficient to demonstrate predominance unless the 
court finds that it was a proxy for race. Bush v. Vera, 517 U.S. at 967-69. 
This principle demonstrates the teanousness of Appellants’ reliance upon the 
General Assembly’s interest in protecting incumbents as an indication of the 
1998 Interim Remedial Plan’s constitutional infirmity based solely on the 
fact that North Carolina’s Twelfth District Representative is Alrican 
American. It is undisputed that the State sought to protect a// incumbent 
members of its congressional delegation, white ond African American; since 
ten of twelve members of that delegation were white, incurmbency protection 

 



DEC-01-98 TUE 11:42 “we DC OFC FAX NO. re P. 11/23    
15 

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, carve out a limited role for federal courts in 
the redistricting process of States that is effective without being 

overly intrusive. See Miller v. Johnson, 515 U.S. at 915-17. 
The Court has refused 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, 
discussed supra at p. 9. Appellants have presented no 
convincing reason why this Court should adopt the standard 
they describe as the “Arlington Heights rule,” which would bar 
any consideration of race by a legislature enacting a remedial 
plan. That standard would make vastly more intrusive the 
scope of federal courts’ inquiries into districting processes, but 
as we show below, neither of Appellants’ other arguments (the 
“fruit of the poisonous tree” and duty to eradicate all “vestiges” 
arguments) states an adcquate justification for replacing the 
controlling decision of this Court with the Appellants’ untested 
theories. 

  

— which Appellants acknowledge is an appropriate legislative purpose “in 
the first instance,” Appellants J.S. at 14 — hardly suggests that racial motives i 
were predominant. By arguing that it was per se unconstitutional for the 
State to protect the incumbency of the Twelfth District’s African-Amcrican 
Congressman 10 the same extent as it protected other incumbents, id, 
Appellants urge the adoption of a double standard that is intolerable under 

the decisions of this Court. 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). Congressman Melvin Wait was recently re-elected as the 
representative of the redrawn Twelfth District approved by the court below 
that is now 65% while in population, but Appellants nevertheless persist in 

arguing that the district (and afortiori. Congressman Watt's electoral 
success) is the product of a racial gerrymander. There is no legal or factual 
basis for suggesting that such a district is constitutionally invalid. 

DEC 81 ’98. 11:52 2428821312 PAGE. 17 

 



   
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Appellants’ “fruit of the poisonous tree” argument is not 
persuasive, since States are not required to discard completely 
the original challenged plan before developing a new remedial 

redistricting plan.'® This argument finds no support in Shaw, its 
progeny, or in cases which define how remedies must be 
fashioned in voting rights cases. This Court has consistently 
accorded great deference to the States’ policy choices in the 
redistricting process and has repeatedly held that the 
redistricting policy choices of the State should 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”). It is not enough for litigants or the federal 
courts to simply prefer a different redistricting outcome; rather, 

the State's choices may be subverted only to the extent 
necessary to remedy the violation. As the district court 
reasoned, where, as in this case, the State has enacted a new 3 

  

"That there is some resemblance between district shapes in a 
challenged plan and those in a remedial plan is not a sufficient basis for 
invalidating the latter unless the court finds that racial considerations 
again predominated in its construction, for otherwise a legislature would 

be required to abandon its carlicr plan and its incumbent officials 
completely. Neither the inclusion of areas smaller than whole counties in the 
1998 Interim Reniedial Plan, nor the re-election of its prior incumbent under 
that Plan, see supra notc 15, may properly be characterized as the “fruit” of 
any “poisonous tree” that compels its proscription. 

DEC 81 'S3-11:52 2228821312 PRGE. 18 

 



DEC-01-98 TUE 11:43 “eo DC OFC FAX NO. 2026821312 P1823. 

  

17 

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. at 917 n.9 (“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 ta 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”). See also Smallwood Appellees’ Brief of Appellant- 
Intervenors in Hunt v. Cromartie, No. 98-85 at 28-31. 

Appellants’ analogy to school desegregation 
jurisprudence fares no better. First, as we earlier pointed out,” 
unlike most cases of de jure school segregation that were 
system-wide, findings of statutory or constitutional violations in 
apportionment plans often involve only a limited number of 
districts rather than the entire plan. There is thus no reason to 
search for “vestiges” of racial predominance outside the specific 
clectoral districts held to be invalid. Second, Appellants 
themselves fail to indicate what such “vestiges” might be, other 

than the same features they have characterized as the “fruit of 
the poisonous tree” in their effort to change the identity of the not 
Twelfth District Representative, see supra note 15. Finally, the 
school desegregation cascs in fact support the result below. 

In the school desegregation context, this Court has 
“articulated a three-part framework . . . to guide district courts 
in the exercise of their remedial authority.” Missouri v. Jenkins, 
515 U.S. 70, 88 (1995). As this Court stated in Milliken v. 
Bradley, 433 U.S. 267 (1977), 
  

See supra page 11 n.12 and accompanying text. 

 



   
DEC-01-98 TUE 11:43 “ey DC OFC FAX NO. ds P. 20/23 

18 

In the first place, like other equitable remedies, the 
nature of the desegregation remedy is to be determined - 
by the nature and scope of the constitutional violation. 

The remedy must therefore be related to ‘the 
condition alleged to offend the Constitution. . . 
Second, the decree must indeed be remedial in nature, 
that is, it must be designed as nearly as possible ‘to 
restore the victims of discriminatory conduct to the 
position they would have occupied in the absence of 

such conduct.” Third, the federal courts in devising a 
remedy must take into account the interests of state and 

local authorities in managing their own affairs, 
consistent with the Constitution, 

Id. at 280-81 (footnotes and citations omitted). In J'reeman v. 
Pitts, 503 U.S. 467 (1992), this Court concluded that this 
inquiry should focus upon “‘whether the [constitutional 
violator] ha[s) complied in good faith with the desegregation 
decree since it was entered, and whether the vestiges of past 
discrimination ha[ve] been eliminated fo the extent 
practicable.” Id. at 492 (quoting Board of Education v. 
Dowell, 498 U.S. at 249-50 (emphasis added). Indeed, “[t]he 
task is to correct, by a balancing of the individual and 
collective interests, the condition that offends the Constitution.” 
Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 

at 15-16 (emphasis added). ak 

Far from calling into question the decision below, this 

Court’s standard for analyzing school desegregation plans 
establishes a role for federal courts that is entirely consistent 

with a federal court’s duty in evaluating remedial redistricting 
plans and comports with the process the district court in this 
case followed in reviewing the 1998 Interim Remedial Plan. . 
Appellants complain that “norhing in the opinion of the court 
below reflects ary awareness on its part of its responsibility to 

assure that ‘vestiges’ of the racially-gerrymandered 1992 plan 

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were not still present in the 1998 plan,” Appellants J.S. at 11 
(footnote omitted and emphasis added). However, predicated 

upon this Court’s precedents discussed above, the district court 
did in fact engage in a careful balancing of the State’s 
responsibilities to remedy the constitutional violation found, 
while fulfilling its other legitimate political redistricting 
objectives.’ The court found that the State’s primary 
redistricting goal was to create a plan to “address [the court’s] 
concerns about District 12.” Appellants J.S. App. at 3a. In 

  

    

1870 illustrate the over-breadth of Appellants’ position, we note that 
they argue, even though no court has ever held that the First Congressional 
District in either the 1992 Plan or the 1997 Remedial Plan unconstitutional; 
that the district cow was nevertheless obligated to “assure that the First 
District as it exists in the [1998 Interim Remedial Plan] has none of the 
‘vestiges’ of the earlier First District and is not the ‘fruit’ of that poisonous 
tree.” Appellants J.S. at 11 n8. However, once it found a discrete 
constitutional violation, the district court was bound by this Court’s 
precedents to tailor the nature and scope of the remedy to match the nature 
and scopc of the violation. See, e.g., Milliken, 433 U.S. at 281-82 (the 
“principlc that the nature and scope of the remedy are to be determimed by 
the violation means simply that federal-court decrees must directly address 
and rclate to the constitutional violation itself. Because of this inherent 
limitation upon federal judicial authority, federal court decrees exoecd 
appropriate limits if they are aimed at eliminating a condition that does not ; 
violate the Constitution or does not flow from such a violation. . . .™); Lewis ~ 
v. Casey, 518 U.S. 343, 357 (1995) (“The remedy must of course be limited : 
to the inadequacy that produced the injury-in-fact that the plaintiff has 
established”) (citation omitted). Since the court only found that the Twelfth 
District violated the Constitution and the First District has never been held 
to violate the Constitution, the district court properly limited its cvaluation 
of the 1998 Remedial Plan: “Because this [cJourt held only that District 12 
in the 1997 plan unconstitutionally used race as the predominant factor in 
drawing District 12, the [¢]ourt is now limited to deciding whether race was 
the predominant factor in the redrawing of District 12 in the 1998 plan.” 
Appellants J.S. App. at 3a. Appellants are not entitled to a remedy for a 
non-existent constitutional violation and, to date, no court has found that 
such a violation exists in the First Congressional Distriot. 

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DEC-01-98 TUE 11:44 “ee DC OFC FAX NO. 2026821312 P. 22/23 

  

20 

addition, it found that the State sought 10 “maintain the partisan 
balance of the State’s congressional delegation, to keep 
incurnbents in separate districts and preserve the cores of those. 
districts, and to reduce the division of counties and citics. . . .” 

Id. at 3a, 4a. The court concluded that the State struck a 
balance that resulted in a plan that “successfully addressed the 
concerns of [the court]” /d. Therefore, despite Appellants’ 
claims to the contrary, the district court was aware of its 
responsibilities in reviewing the 1998 Intenm Remedial Plan and 

acted in accord with this Court’s long standing precedents. 
Offering no principled rationale for this Court to abandon its 
well-settled standards governing the delicate role of federal 
courts in the redistricting process, Appellants’ appeal is 
insubstantial. 

The district court order on appeal was firmly grounded 
in this Court’s precedents. If plcnary review is routinely 
granted by this Court based upon the claims Appellants raise 
here, this Court will be forced to evaluate and review the details 
of congressional or state legislative districts whenever a plaintiff 
alleges that they have an odd shape or that race was even a 

trivial consideration in their creation. The district court 

properly disposed of the issues before it and Appellants have 
presented nothing to demonstrate that the court’s action was 
contrary to law or that its factual findings were clearly 

erroneous. 

DEE BI 200 11:88 2826821312 PRGE. 22 

 



  

DE$-01-98 TUE 11:44 “eo DC OFC FAX NO. a P.23/23 

21 

CONCLUSION 

I'or the foregoing reasons, the motion to affirm or, in the 
alternative, dismiss should be granted. 

Respectfully submitted, 

ELAINE R. JONES ADAM STEIN 

Director-Counsel FERGUSON, STEIN, WALLAS, . 

THEODORE M. SHAW ADKINS, GRESHAM & 

NORMAN J, CHACTIKIN SUMIER, P.A. 

JACQUELINE A. BERRIEN 312 West Iranklin Street 

NAACP LEGAL DEFENSE Chapel Hill, NC 27516 

& EDUCATIONAL FUND, INC, (919) 933-5300 

99 Hudson Street, Suite 1600 

New York, NY 10013 TopD A. Cox* 

(212) 219-1900 NAACP LEGAL DEFENSE 

& EDUCATIONAL FUND, INC. 

1444 Eye Street, NW 

10th Floor 

Washington, DC 20005 

(202) 682-1300 

*Counsel of Record 

Attorneys for Appellee-Intervenors 

DEC 81. '93 11:52 2228821312 PRGE. 23