Reply Brief of Appellant-Intervenors with Appendix and Affidavit of Service

    No. 98-85     
  

  

  

IN THE 

  

Supreme Court of the United States 
OCTOBER TERM 1998 
  

JAMES B. HUNT, JR., et al., 

Appellants, 

and 

ALFRED SMALLWOOD, et al., 

MARTIN CROMARTIE, et al., 

Appellant-Intervenors, 

wr 

——— 

Appellees. 

  

On Appeal from the United States District Court 

asl 
gl 

Eastern District of North Carolina a 5 
  

REPLY BRIEF OF APPELLANT-INTERVENORS 
  

ELAINE R. JONES 

Director-Counsel 

THEODORE M. SHAW 

NORMAN J. CHACHKIN 

JACQUELINE A. BERRIEN 

VICTOR A. BOLDEN 

DEBORAH N. ARCHER 

NAACP LEGAL DEFENSE 

& EDUCATIONAL FUND, INC. 

99 Hudson Street, Suite 1600 
  

   
   

      

      

RNewCY pri, Wev York §110013 

HAQD) DELIMBERED 

DEC 2 8 19% 

OFFICE OF THE CLERK 

SUPREME COURT, U.S.           | for Appellant-Intervenors 

ADAM STEIN 

FERGUSON, STEIN, WALLAS, 

ADKINS GRESHAM & 

SUMTER. P.A. 

312 West Franklin Street 

Chapel Hill, NC 27516 

(919) 933-5300 

TopD A. COox* 

NAACP LEGAL DEFENSE 

& EDUCATIONAL FUND, INC. 

1444 Eye Street, NW 

10th Floor 
Washington, DC 20005 

(202) 682-1300 

*Counsel of Record 

  

 





i 

TABLE OF CONTENTS 

Page 

Tebleof Authorities... .-... dc ib Sein i 

AISUMENE™, od in Bil nd De a Sa 1 

L Appellees Have Not Justified the Grant of 
Summary Judgment Below ......... ..... . 1 

A. Appellees fail to identify record 
evidence and facts supporting 

| the lower court’s grant of 
| Summary judgment ............. 1 

B. This Court should reject 
| Appellees’ request that it change 

its holdings in order to sustain 
the judgment below . . . ..... .. _ .. 3 

II. On the Record Before It, the Court Below 
should have Determined Whether the 1997 Plan 
could be Justified under Strict Scrutiny... 5. 12 

Conclusion =r... Fd. in al a 15 

 



    

ii 

TABLE OF AUTHORITIES 

CASES 

Page 

Abrams v. Johnson, 

S2LULS. 7400007). . 0. i ois amar os 10 

Burns v. Richardson, 

334 US. 73Q086Y. ... i. vt SG 7 

Bush v. Vera, 

S1I7U.S.952(10968) '.. n... 056s ooh a 4,10 

Freeman v. Pitts, 

S0311.8.467(1992) |... i dans ses 11 

Keyes v. School District No. 1, Denver, 

43X18: 18901973). .....0... C0 aes a 10 

Lawyer v. Department of Justice, 

SQV US. S67C1997) .... 0. con ainsi 5. 12 

Lewis v. Casey, 

SIBUIS. 343 (1995)... ou. niieu. vives Bains 8 

Miller v. Johnson, 

5150J.8.900€1998) cus iis ao passim 

Milliken v. Bradley, 

BIVUS. 2670977) .os sv vanes 8,11 

Missouri v. Jenkins, 

SISUS 7001993)" .. vals. 0 28 Fe 11 

Scott v. United States, 

920 F. Supp. 1248 (M.D. Fla. 1996), 

aff'd sub nom. Lawyer v. Department of 

Justice, 32111.8. 5671997) coi. ic iin 5,12 

    

 



  

iii 

CASES (continued) 

Page 

Shaw v. Hunt, 

S17U.8S. 89941996) o>... .....0, 0 passim 

Shaw v. Reno, 

509 1).S.630(1993) ote ad won, 3,12 

Swann v. Charlotte-Mecklenburg Board of Education, 
40208. 101971) 0. oo NL aE a 11 

Thornburg v. Gingles, 

478 U.8.30(10868).5. Son oon Lo 0 0 10 

United States v. Hays, 

SISUS. 7371993). 0, he oar 4 

Upham v. Seamon, 

436 U.S. 3701932) 80. nl ala 8 

Village of Arlington Heights v. Metropolitan 
Development Corp., 

POU.SI2(A977). .. [aia ay eT 3 

Voinovich v. Quilter, 

307U8.146Q0993) i... x... Tina 6, 7 

White v. Weiser, 

41208. 783(1973) =. . a a 6 

Wise v. Lipscomb, 

437U.8.83301978) 4. a 20 tp oa 7 

Wygant v. Jackson Board of Education, 
476U.8.267 (1986)... x. iii ana 12 

 



  

 
 

 



  

    

REPLY BRIEF OF APPELLANT-INTERVENORS 

ARGUMENT 

L Appellees Have Not Justified the Grant of Summary 

Judgment Below 

A. Appellees fail to identify record evidence and 

facts supporting the lower court’s grant of 

summary judgment 

Appellees struggle mightily, but ultimately 

unsuccessfully, to articulate an adequate basis in the record for 
the lower court’s grant of summary judgment in their favor. 
For mnstance, they assert that “the shape of the Twelfth District 
... especially when juxtaposed against the race-based Twelfth 
District of the 1992 plan . . . is strong evidence as to the racial 
motive for the plan,” Appellees’ Brief on the Merits (“Br.”) at 
9, and that the 1997 plan “fails the ‘eyeball test,”” Br. at 25. 
The majority of the court below was not persuaded by these 
arguments, observing instead that a “comparison of the 1992 
District 12 and the present District [12] is of limited value 
here.” Appendix to the Jurisdictional Statement on Behalf of 
the State of North Carolina (“NC. J.S. App.”) at 19a. It is one 
thing to defend a judgment by presenting an alternative legal 
theory based upon which the decision may be sustained; it is 
quite another to pin one’s hopes upon an assessment of 
evidence whose significance was specifically discounted by the 
court below. 

Appellees also baldly ascribe racial motivations to the 
North Carolina General Assembly for which record support is 
lacking. See, e.g., Br. at 34-35, describing without any record 
citation what “legislators were assuming” and alleging, contrary 

 



    

2 

to the documentary evidence presented by the State in the lower 

court, that “the General Assembly relied on ‘racial stereotypes’ 

and treated a ‘significant number’ of black voters as ‘mere racial 

statistics.” 

On the other hand, Appellees’ attempt to bolster the 

significance of the few “facts” actually discussed by the court 

below is highly selective, if not misleading. For example, 

focusing on the nine “excluded” precincts with majority- 

Democratic registration cited by the district court, Appellees 

note that Democratic candidates won 24 of 27 statewide 

electoral contests in these precincts, sometimes by proportions 

exceeding their share of registration. Br. at 35-36. However, 

Appellees provide no data comparing these precincts’ partisan 

registration figures or performance at the polls with those of 

adjacent precincts that were placed within District 12 — because 

those data are consistent with the General Assembly’s 

explanation of the districting plan rather than with Appellees’ 

accusations. See, e.g., Brief for United States as Amicus Curiae 

at 25 n.9. 

  

! Appellees’ criticisms of the evidence introduced below by the State 
of North Carolina are similarly ineffectual. For example, they complain that 

data on political performance examined by the State’s expert witness, Dr. 

Peterson, do not support the conclusion he drew (that partisan voting 

strength, rather than race, accounted for the placement of precincts within 

District 12) because of the high proportion of North Carolina’s African- 

American citizens who register as Democrats and vote for Democratic 

candidates. Br. at 33-34. However, Appellees offer no persuasive evidence 

to support their inference from those data: that race, rather than politics, 

was the predominant factor in shaping the districting plan. Thus, Appellees’ 

criticism serves only to underscore the inappropriateness of deciding 

complex questions of legislative motivation on summary judgment. 

    

    
 



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(U
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B. This Court should reject Appellees’ request 
that it change its holdings in order to sustain 

the judgment below 

Perhaps in recognition of these difficulties, Appellees 
ask this Court to change the legal standard enunciated in Shaw 
v. Reno, 509 U.S. 630 (1993) and applied in subsequent cases 
— and to adopt now a rule that the Court explicitly declined to 
announce in Miller v. Johnson, 515 U.S. 900 (1995), one that 
would hold unconstitutional any districting plan in the creation 
of which race was a factor, although not the predominant 
factor. Br. at 19, 20. Citing Village of Arlington Heights v. 
Metropolitan Dev. Corp., 429 U.S. 252 (1977), Appellees 
contend that this Court should thus modify the standard 
announced in Shaw, and that review of a remedial plan drawn 
to cure a prior Shaw violation requires a particularly 
“demanding judicial scrutiny.” However, Appellees’ arguments 
are inconsistent with the concern for State interests that 
underlies the standard of review developed in this Court’s Shaw 

  

See, e.g.,515 U.S. at 916 (legislatures “almost always . . . aware 
of racial demographics but it does not follow that race predominates”); id. 
(other districting principles must be subordinated to race) (opinion of the 
Court); id. at 928 (O’Connor, J., concurring); id. at 935 (Ginsburg, J., 
dissenting). 

3 Drawing analogies to school desegregation and criminal due 
process cases in which evidence was held inadmissible if it is the “fruit” of 
an unconstitutional search or arrest, Br. at 20, 21, Appellees argue that 
district courts must assure that remedial plans contain no ““vestiges’ of the 
unconstitutional racial gerrymander” and that “all ‘traces’ of the earlier 
predominant racial motive have been rooted out.” Id. at 22. Appellees 
assert that they are “entitled to a presumption that ‘current disparities are 
causally related™ to the prior plan and that the burden of rebutting this 
presumption rests with the defendants. Jd.  



  

4 

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

precedents in the apportionment context. Moreover, their 

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

disregarding this Court’s precedents when it evaluated the 1997 

Remedial Plan. 

First, as discussed in Appellant-Intervenors’ opening 

brief, in cases such as this one, this Court requires that the 

plaintiffs (Appellees here) 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 v. 

Vera, 517 U.S. 952, 958 (1996), quoting Miller v. Johnson, 

515 U.S. at 913, and “that other, legitimate districting principles 

were ‘subordinated’ to race.” Bush, 517 U.S. at 959. Thus, it 

is insufficient for Appellees to show 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 958. See also id. at 

993 (“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”) (O’Connor, J., concurring) 

(emphasis in oniginal); United 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 

    

  
 



  
  
  

5 

consciousness does not lead inevitably to impermissible race 
discrimination’) (citation omitted) (emphasis in original); Brief 
of Appellant-Intervenors at 32-37. 

This Court’s recognition that legislatures are always 
aware of race in drawing district lines, and its consequent 
holding that legislatures may permissibly take race into 
consideration in that process so long as racial considerations do 
not predominate, carves out a limited role for federal courts in 
the redistricting process of States that is effective without being 
overly intrusive. See Miller v. Johnson, 515 U.S. at 915-17. 
The Court has declined to alter that role when a legislative plan 
adopted to remedy an earlier constitutionally infirm 
apportionment is at issue. See Lawyer v. Department of Justice, 
521 U.S. 567 (1997), aff’g Scott v. United States, 920 F. Supp. 
1248 (MLD. Fla. 1996). While making unsupported accusations 
that the North Carolina General Assembly deliberately set out 
to evade the requirements of this Court’s ruling in Shaw v. 
Hunt, 517 U.S. 899 (1996), Appellees have presented no 

  

‘Appellees suggest that the legislators “took the position that Shaw 
applied only to majority-minority districts” and “attempted to comply with 
Shaw even though they created an obviously race-based district. . . .” Br. at 
16. The comments of Senator Cooper and Representative McMahan on 
which Appellees rely, Br. at 14-15, are descriptive of the results of drawing 
a plan based on partisan political considerations, not of the procedures by 
which the districts were created. However, the fact that District 12 is not 
majority-black is relevant to a federal court’s determination whether race was 
a predominant factor in its creation. As this Court stated in Lawyer v. 
Department of Justice, 521 U.S. 567, ___, 117 S. Ct. 2186, 2195 (1997), 
aff’g Scott v. United States, 920 F. Supp. 1248 (M.D. Fla. 1996), “[t]he fact 
that District 21 under Plan 386 is not a majority black district . . . supports 
the District Court’s finding that the district is not a ‘safe’ one for black- 
preferred candidates, but one that ‘offers to any candidate, without regard to 
race, the opportunity’ to seek and be elected to office” (citation omitted).  



  

6 

convincing reason why this Court should adopt the standard 

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

any consideration of race by a legislature enacting a remedial 

plan and make the scope of federal courts’ inquiries into 

districting processes vastly more intrusive. 

Second, Appellees’ “fruit of the poisonous tree” 

argument is also not persuasive, since States are not required to 

discard completely the original challenged plan before 

developing a new remedial redistricting plan. As pointed out in 

our opening brief, Appellees’ argument finds no support in 

Shaw, its progeny, or in other cases which define how remedies 

must be fashioned in voting 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 preferences may be 

disregarded only to the extent necessary to remedy the violation. 

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

fully remedies the Shaw violation and complies with all   
   



  

  

7 

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 § 27) (citing Voinovich v. Quilter and Growe v. 
Emison, 507 U.S. 25 (1993)); Burns v. Richardson, 384 U.S. 
73, 85 (1966) (“A State’s freedom of choice to devise 
substitutes for an apportionment plan found unconstitutional, 
either as a whole or in part, should not be restricted beyond the 
clear commands of the Equal Protection Clause”). See also 
Brief of Appellant-Intervenors at 28-31. 

Finally, Appellees’ analogy to school desegregation 
jurisprudence is equally unavailing. Unlike the finding of 
system-wide de jure discrimination in the typical school 
desegregation case, 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 anticipate that there are “vestiges”. of racial 
predominance outside the specific electoral districts held to be 
invalid.” Moreover, Appellees themselves fail to indicate what 

  

°In this case, in addressing the constitutional violation found to 
exist by the court below in the 1997 Remedial Plan, the General Assembly 
made changes to the boundaries of only the Twelfth District and five 
adjacent districts. Although these changes were accepted as a sufficient 
remedy by the lower court, the court had granted Appellees preliminary 
injunctive relief enjoining the conduct of all of the State’s 1998 
congressional primaries — including those held in districts unaffected by the 
violation in the Twelfth District — and dispensing with the State’s normal 
runoff procedures. See Defendants’ Memorandum in Support of Motion to 
Reconsider Stay and to Shorten Time for Response, filed April 17, 1998. 
This mjunctive relief was unnecessarily broad because, even having found 
a discrete constitutional violation, the district court was bound by this  



  

8 
A 

such “vestiges” might be, other than what they characterize as 

“a clear resemblance . . . between the earlier unconstitutional 

plan and the remedial plan.” Br. at 22.° But see NC. J.S. App. 

  

Court’s precedents to tailor the nature and scope of the remedy to match the 
nature and scope of the violation. See, e.g., 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); Upham v. Seamon, 456 U.S. 37, 43 (1982) (court’s remedy must 

be limited to curing constitutional and or statutory defect). Milliken v. 

Bradley, 433 U.S. 267, 281-82 (1977) (“federal court decrees exceed 

appropriate limits if they are aimed at eliminating a condition that does not 

violate the Constitution or does not flow from such a violation . . .”). A 

systemwide remedy is inappropriate absent a finding of a systemwide 

violation. 

The harm to the State’s interests, and to political participation in 

North Carolina, that resulted from the order disrupting the election process 

by delaying and otherwise altering election schedules is significant and has 

been frequently recognized by this Court. Altering the State’s regular 

election calendar, conducting congressional elections without statewide races 

on the ballot, and conducting elections in close proximity to each other all 

contribute to low voter turnout. See Expert Witness Declaration of Bernard 

N. Grofman, Ph.D. in Shaw v. Hunt, July 24, 1996, at 6 (lodged with the 

Clerk of this Court at the time of filing of the Memorandum of Amici Curiae 
Alfred Smallwood, ef al., in Support of Emergency Application for Stay 

Pending Appeal). This result is exacerbated for minority groups, such as 

African Americans, because they tend to be poorer and less well educated 

than their white counterparts, and, consequently, tend to have lower levels 

of political participation. See id. at 9. 

® Appellees do intimate, elsewhere in their brief, that any 
Congressional district that would re-elect the present incumbent of District 

12 is necessarily so connected to the unconstitutional features of the 1992 

plan as to be per se impermissible. They assert that the Congressman 

reelected from that district holds racially “polarizing view[s]” about which 

he testified in the 1994 Shaw v. Hunt trial, Br. at 12 n.19 and accompanying 

text, and they imply that only the election of a different Representative could 

fully cure the prior constitutional violation, Br. at 46-47. These arguments 

misrepresent Rep. Watt's views and his record, and they demean the 

   



  

  

thousands of white and African-American constituents, such as Appellant- 
Intervenors, who have returned him to office. 

In the first place, the excerpt from Rep. Watt's trial testimony in 
Appellees’ Br. at note 19 (quoting from the dissenting opinion in the trial 
court’s ruling in Shaw v. Hunt), conflates a portion of one question with a 
portion of Rep. Watt’s answer, torn from its appropriate context. Only 
Appellees’ counsel referred to the “white community” — in his compound 
question. Rep. Watt's answer was not given in racial terms at all but 
focused on “compromising and walking the line between the business 
community and the community.” The entire exchange is set out in the 
Appendix, infra, at pp. la-3a. 

Moreover, as Appellees themselves recognize, Br. at 8 n.15, Rep. 
Watt (like other African-American Representatives in Congress who were 
originally elected from majority-black districts created following the 1990 
Census) has now been re-elected from a majority-white district. The creation 
of these districts provided these Representatives with a crucial advantage of 
incumbency: the opportunity to overcome white voters’ stereotypical 
expectations. as Rep. Watt did, by providing meaningful representation and 
effective constituent service to all of their districts’ residents. These 
Members of Congress were thus enabled to overcome long-maintained 
patterns of white racial bloc voting and to win office in redrawn, now 
majority-white districts. 

While this development is of course a welcome one, its significance 
should not be overstated. It does not in any way undercut the original 
necessity of creating these districts, which provided minority voters with 
their mitial opportunity, equal to that of white voters, to elect candidates of 
their choice to Congress. As in other southern states, for example, prior to 
the 1992 redistricting that resulted in the creation of District 12, no African- 
American candidate had ever been elected to Congress from North Carolina 
in this century, even when candidates enjoyed the overwhelming support of 
African-American voters. Nor does it foreclose the possibility that such 
remedies may still be required to avoid minority vote dilution: whether 
candidates of choice of minority voters who do not have the advantages of 
incumbency described above will have a realistic opportunity to win election 
in majority-white districts, even in North Carolina, is presently unknown and 
can be determined only based upon a “searching practical evaluation of the 
past and present reality” of the political process in a specific jurisdiction, 

 



  

10 

at 19a (majority of court below states that “comparison of the 

1992 District 12 and the present District is of limited value 

here”). 

The school desegregation cases in fact support the 

current legal standard. In the school desegregation context, this 

Court has “articulated a three-part framework . . . to guide 

  

Thornburg v. Gingles, 478 U.S. 30, 45 (1986) (internal citation add 

quotation omitted). To the extent, therefore, that Appellees’ mention of this 

extra-record development is intended to suggest that compliance with 

Section 2 should no longer be considered a compelling governmental 

interest, it is in direct conflict with this Court’s precedents. See, e.g., Shaw, 

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); Bush, 517 U.S. at 990, 992 (O’Connor, J., concurring). 

"Appellees similarly argue that they are entitled to the benefit of the 
“presumption that ‘current disparities are causally related’ to” the prior 

constitutional violation, Br. at 22; see Keyes v. School Dist. No. 1, Denver, 

413 U.S. 189, 201, 208, 213 (1973). But they never identify what 

“dispanties” would give rise to the presumption, other than by referring to 

the creation of a district with a higher proportion of African-American voters 

than the State as a whole, see Br. at 46. This Court has expressly rejected 

such a redistricting standard. See Lawyer, 521 U.S. at _ ,117 S. Ct. at 

2195 (“we . . . have never recognized similar racial composition of different 

political districts as being necessary to avoid an inference of racial 

gerrymandering in any one of them. Since districting can be difficult, after 

all, just because racial composition varies from place to place, and counties 

and voting districts do not depend on common principles of size and 

location, facts about the one do not as such necessarily entail conclusions 

about the other”). Moreover, the rule proposed by Appellees would be 

fundamentally contrary to this Court’s decisions, which hold that States may 

recognize communities of minority voters so long as race does not 

predominate in fashioning a districting plan and, even if it does, so long as 

the plan is narrowly tailored to achieve a compelling state interest. See 

Miller, 515 U.S. at 920; Bush, 517 U.S. at 958-959, 976; Abrams v. 

Johnson, U.S. 1178S. Ct 1925, 1933, 1936 (1997). 

    

  

 



  
  

11 

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), 

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 Freeman 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 to the extent 

practicable’” Id. at 492 (quoting Board of Education v. 

Dowell, 498 U.S. 237, 249-50 (1991) (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). Far from 

calling present law into question, this Court’s standard for 

analyzing school desegregation plans establishes a role for 

federal courts in such cases that is entirely consistent with a 

 



  

12 

federal court’s duty in evaluating remedial redistricting plans. 

See Motion to Affirm or, in the Alternative, to Dismiss, of 

Appellee-Intervenors in Hunt v. Cromartie, No. 98-45 at 17-20. 

In the end, Appellees’ recitation is bereft of specific 

evidence from the record that could support the grant of 

summary judgment and that judgment could be sustained, if at 

all, only if the Court embraced Appellees’ plea that it abandon 

long-standing precedents.® 

II. On the Record Before It, the Court Below should 

have Determined Whether the 1997 Plan could be 

Justified under Strict Scrutiny 

While Appellant-Intervenors continue to believe, as we 

have argued, that the court below erred in entering summary 

judgment in favor of Appellees based on its unsupportable 

conclusion that race predominated in the 1997 districting 

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

  

As part of their request that this Court alter its precedents, 
Appellees contend that defendants in this case bear the burden of proving 

that there is no causal relationship between the constitutional infirmities 

found by the Court in the 1992 Plan and the 1997 Remedial Plan. This, of 

course, is contrary to the well-settled law that in challenges to the 

constitutionality of a districting plan under the Fourteenth Amendment 

jurisprudence established by this Court in Shaw v. Reno and Miller v. 

Johnson, “[t}he plaintiff bears the burden of proving the race-based motive. 

...0 Shaw, 517 U.S. at 905 (citation omitted). See also Miller, 515 U.S. 

at 916. This burden does not shift during the remedial phase of such a 

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

aff'd sub nom. Lawyer v. Department of Justice, 521 U.S. 567 (1997). The 

rule is an application of the equally well-settled principle that in 

constitutional challenges, plaintiffs bear the burden of proof throughout the 

case. See Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 277 (1986) 

(opinion of Powell, J., for the plurality); id. at 292-93 (O’Connor, J., 

concurring). 

   



  

13 

the judgment of the district court cannot stand. Having found 

that the legislature took race into account in a predominant 

fashion in drawing the plan, as we argued in our opening Brief 

at 40-41, the lower court should have considered whether a 

legally sufficient basis existed to justify that action and whether 

it was sufficiently narrowly tailored to accomplish that interest. 

The record contains ample evidence to create triable 

issues on these questions.” The affidavits of Senator Cooper 

and Representative McMahan each stated clearly that “racial 

fairness” was considered by the General Assembly, as was the 

“[o]bligation[] to represent all of our constituents of all races 
and to comply with the Voting Rights Act,” see NC. J.S. App. 
at 77a, 83a; see also id. at 120 (statement of Representative 
McMahan on floor of North Carolina House). The summary 
judgment record also indicates that, in creating the plan, the 
legislature was aware of North Carolina’s long history of 
official discrimination against African-Americans and their 
exclusion from the political process due to state and private 

  

? Appellees assert that, once it had concluded that race predominated 
in the creation of the 1997 plan there was no need for the court below to 
have considered whether the plan could survive a strict scrutiny analysis, 
because the State’s principal defense was that politics, not race, accounted 
for the configuration of the plan. While Appellees mischaracterize the 
State’s argument as being “that no racial motive existed for the design of 
District 12,” Br. at 43, in fact, the State and Appellant- Intervenors have 
consistently argued only that race was not the predominant motive for the 
plan. However, Appellees reject this Court’s holdings that a districting plan 
is unconstitutional only if racial considerations predominate in its creation 
and the plan is not narrowly tailored to accomplish a compelling 
governmental objective. See Br. at 44 (“in claiming that the redistricting 
plan was primarily for protecting incumbents and maintaining partisan 
balance, appellants have made clear that no grounds exist for finding that 
District 12 could survive strict scrutiny”). See supra p. 3 n.2 and 
accompanying text. 

 



  

14 

action. Moreover, there was evidence from the Section 5 

process that the State sought to “provid[e] minority voters a fair 

opportunity to elect representatives of their choice in at least 

two districts (Districts 1 and 12),” NC. J.S. App. at 64a, and 

that District 12 does afford African-American voters a fair 

chance to elect their candidate of choice. See NC. J.S. App. at 

66a. 

Thus, the State concealed neither its need to be racially 

fair when submitting a plan for review under Section 5 nor the 

fact that it has been on notice regarding its Section 2 obligations 

since Gingles. It is simply untrue that “nothing in this record 

even remotely suggests that the evidence before the [district] 

court raised any issue of fact or law as to strict scrutiny,” Br. at 

44, or that “[n]othing in the record suggests that the [Twelfth] 

district was created in response to a ‘compelling governmental 

interest’ or that it embodied ‘narrow tailoring’.” Br. at 10. See 

Brief of Appellant-Intervenors at 8-9, 25-26, 32-41. 

Under these circumstances, even if the court below had 

been correct in finding that race predominated in the 

legislature’s development of the 1997 plan, before that court 

determined to enjoin implementation of the General Assembly’s 

plan, it should have pursued the strict scrutiny analysis to assure 

itself that federal court interference with State districting 

preferences was necessary. See Miller v. Johnson, 515 U.S. at 

914-16. Its failure to do so, in the face of record evidence 

highly relevant to the strict scrutiny analysis, constituted an 

independent legal error warranting reversal. 

   



CONCLUSION 

For the foregoing reasons, as well as those contained in 

the Brief of Appellant-Intervenors, this Court should reverse the 

judgment of the district court and enter judgment for 

defendants. In the alternative, this Court should vacate the 

judgment of the district court and remand the case for trial. 

Respectfully submitted, 

ELAINE R. JONES 

Director-Counsel 

THEODORE M. SHAW 

NORMAN J. CHACHKIN 

JACQUELINE A. BERRIEN 

VICTOR A. BOLDEN 

DEBORAH N. ARCHER 

NAACP LEGAL DEFENSE 

& EDUCATIONAL FUND, INC. 

99 Hudson Street, Suite 1600 

New York, NY 10013 

(212) 219-1900 

ADAM STEIN ; 

FERGUSON, STEIN, WALLAS, 

ADKINS, GRESHAM & 

SUMTER, P.A. 
312 West Franklin Street 

Chapel Hill, NC 27516 

(919) 933-5300 

TopD A. Cox* 

NAACP LEGAL DEFENSE 

& EDUCATIONAL FUND, INC. 

1444 Eye Street, NW 

10th Floor 

Washington, DC 20005 

(202) 682-1300 

*Counsel of Record 

Attorneys for Appellant-Intervenors 

 



  

 
 

  
 



APPENDIX 

 
 

 



    

    
 



  

-1lq=- 

Excerpts from Trial Testimony 

Shaw v. Hunt, No. 92-202-Civ-5-BR (E.D.N.C.) 

April 4, 1994 

pp. 998-1001 

[MELVIN WATT, BEING FIRST DULY SWORN,   

TESTIFIED AS FOLLOWS] 

[CROSS-EXAMINATION] 

[BY MR. EVERETT] 

[998] 

Q. Now, in that same vein, have you stated at panel, which 
was videotaped, that I'm not sure that a black person 
representing a majority white district would have [999] 
had the freedom of voting against NAFTA? 

Yes, I've said that. 

Is that still your opinion? 

Yes. I mean, it’s basically consistent with what I was 
saying before. If you represent inconsistent 
constituencies, it is more difficult to represent those 
inconsistent communities of interest. 

And I expect, had I been representing more of the 
corporate interests, which is what you would have 
gotten in historical pattern of the way Congressional 
districts are drawn, I would have either had to change 
my view on that or I would have been out of step with 
the majority of my constituents on that issue and that’s 
the context in which I made that statement. 

 



  

$29 ht 

Did you, in the same context, say that it adds to the 

debate to be able to bring up a perspective without 

catering or having to cater to the business or white 

community? 

Yes, sir, I made that statement. I can give you many 

examples of it. Most recently, this week, when I met 

with a banker. He pointedly asked me the question if 

comes down to voting my interests as a banker or voting 

what you perceive to be the communities of interest in 

your district and those two things are at odds with each 

other, I want you to tell me you are going to vote with 

me. 

[1000] I looked at him and said, sir, I can’t tell you that. 

I will tell you that I will consider your opinion, I will 

listen to you, I will allow you to persuade me, and if I 

believe that you are right, I will vote with you, with your 

interests. 

But my interest, representing the constituency that I 

represent, and I would tell you, Mr. Everett, I would 

never have been able to make that statement in the 

context of the old 9" Congressional District. And so 

again, that’s an example of the difficulty. 

Now, I want to hasten to tell you that that doesn’t mean 

that I don’t have to compromise. I probably end up 

compromising and walking the line between the business 

community and the community a lot more than most 

people do, and I try to do it with integrity, and I try to 

do 1t as I believe I should do it. 

   



- 33 

But I would be in a completely different situation, in my 

opinion, if I represented a district like the old 9" and 
that’s really what I was saying to you or in response to 

the question on direct, as to why I would not have run. 

I consider myself a very principled person, much less so 

a political person in the sense that I am always trying to 

figure out the way the political winds are blowing. And 

representing a district that you are consistent with 

[1001] in your philosophies, allows you to be consistent 

in voting your conscience without buckling under or 

catering, as you said my statement said, to other 

interests that may not predominate in my district. 

Basically you seek to represent a constituency that’s 

consistent with your particular view, is that it? 

No, sir. I hope you don’t misunderstand what I’m 

saying. I think I tried to articulate it as best I can. It’s 

a lot more comfortable for any politician to represent a 

constituency that his or her personal opinions and views 

are consistent with. 

 



No. 98-85 0 

IN THE 

Supreme Court of the United States 
OCTOBER TERM, 1998 

    
  

  

  

JAMES B. HUNT, JR., et al., 

Appellants, 

and pol 

ALFRED SMALLWOOD, et al., Ve 

Appellants-Intervenor,. = 
V. mae 

CJ 

MARTIN CROMARTIE, et al., x 

Appellees. 

  

AFFIDAVIT OF SERVICE 
  

[I HEREBY CERTIFY that all parties required to be served, have been served on this 28th day 

of December, 1998, in accordance with U.S. Supreme Court Rule 29.5(c), three (3) copies of the 

foregoing REPLY BRIEF OF APPELLANT-INTERVENORS, by placing said copies in the U.S. 

Mail, first class postage prepaid, addressed to: 

ROBINSON O. EVERETT EDWIN SPEAS, JR. 

First Union National Bank Building CHIEF DEPUTY ATTORNEY GENERAL 

Suite 300 TIARE B. SMILEY 

P.O. Box 586 NORTH CAROLINA DEPARTMENT OF JUSTICE 

Durham, NC 27702 P.O. Box 629 

Raleigh, NC 27602-0629 

A 
  

RECEIVED 
HAND DELIVERED 

    
    

DEC 08 
2 8 1966 Karen Pierangeli 

OFFICE OF THE CLERK Byron S. Adams 

SUPREME COURT, U.S. 1615 L Street, NW, Suite 100 
  

Washington, D.C. 20036 

(202) 347-8203 

Sworn and subscribed before me this 28th day of December, 1998. Taye 

| \ \ 

\ WAL BS J   

William R. Pierangeli 

Notary Public 

District of Columbia 

My commission expires April 10, 1999.