Hunt v. Cromartie Brief Amicus Curiae Supporting Appellants

    Nos. 99-1864 and 99-1865

In tf)t Supreme Court of tljr Hmteb States
James B. Hunt, Jr., Governor of N orth Carolina,

ET AL., APPELLANTS
V.

Martin Cromartie, et al.

Alfred Smallwood, et al., appellants
v.

Martin Cromartie, et al.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN  DISTRICT OF NORTH CAROLINA

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE SUPPORTING APPELLANTS

Seth P. Waxman 
Solicitor General 

Counsel of Record
William R. Yeomans 

Acting Assistant Attorney 
General

Barbara D. Underwood 
Deputy Solicitor General

James A. Feldman 
Assistant to the Solicitor 

General
David K. Flynn 
Louis E. Peraertz 

Attorneys
Department of Justice 
Washington, D.C. 20530-0001 
(202) 5U-2217



QUESTION PRESENTED

The United States will address the following question:
Whether the district court applied the correct legal stan­

dards in finding that race was the predominant factor in the 
drawing of District 12 of North Carolina’s 1997 congressional 
redistricting plan.

(I)



TABLE OF CONTENTS
Page

Interest of the United States....... .......... ........... .............. 1
Statement................... ...... ............................ . 2
Summary of argument    ............ .................. ............. 8
Argument:

I. The predominant factor tes t requires a district 
court to engage in a particularly sensitive 
inquiry into a S ta te’s in tent in drawing a 
district, and it requires proof not merely tha t 
race was a factor in drawing a district, bu t that
it was the predominant factor .... .............. ....... . 11
A. A Shaw claim requires proof that race was

the State’s “predominant factor” ...................  11
B. The predominant factor test is a demanding

one .................................. ..... ......................  12
II. The district court improperly inferred a pre­

dominant racial motive in this case ... .......... ...... . 16
A. The district court relied substantially on

evidence th a t was incompetent to distinguish
between race and politics as a factor in
District 12 .... ......................................................... 18

B. I t was clear error for the district court to 
infer predominant racial motive from Dr.
W eber’s te s tim o n y .......................... .......................  21

C. The district court’s conclusions from other 
testimony were infected by its earlier errors 
and in any event confuse evidence th a t 
race was a factor in drawing District 12 with 
evidence th a t it was the predom inant
factor ..........................................................................  26

Conclusion .................................................................................. 30

(III)



IV

TABLE OF AUTH ORITIES

Cases: Page

A bram s  v. Johnson, 521 U.S. 74 (1997) ...... ...................... 13
Anderson  v. City o f Bessemer City, 470 U.S. 564

(1985) ............................................................................ .......... 24
Buckanaga  v. Sisseton Indep. School Dist., 804

F.2d 469 (8th Cir. 1986)......... ....................................... . 23
B ush  v. Vera, 517 U.S. 952 (1996)........................ 11-12,14,15,

16,18, 20, 28, 29
Chapman  v. Meier, 420 U.S. 1 (1975) ................................ 13
Clark v. Calhoun County, 21 F.3d 92 (5th Cir.

1994) .............................      23-24
Commissioner v. Duberstein, 363 U.S. 278 (1960) ..... . 23
Cousin  v. McWherter, 46 F.3d 568 (6th Cir. 1995) .........  23
Growe v. Em ison, 507 U.S. 25 (1993)  ............ ......... 13
Harvell v. Ladd, 958 F.2d 226 (8th Cir. 1992) ....... .......... 23
H unt v. Cromartie, 526 U.S. 541 (1999) ... 2 ,3 -4 ,11 ,16 ,19 ,20
Johnson  v. Hamrick, 196 F.3d 1216 (11th Cir.

1999) .................... .............................................. ...................... 23
Lawyer v. Department o f Justice, 521 U.S. 567

(1997).......... ..................................................................... 11,12,17
Lee County Branch o f the N A A C P  v. City o f

Opelika, 748 F.2d 1473 (11th Cir. 1984) ............................  23
M iller v. Johnson, 515 U.S. 900 (1995) ......................  12,13-14
Shaw  v. H unt, 517 U.S. 899 (1996) ...........  2 ,11,13,15, 28, 29
Shaw  v. Reno, 509 U.S. 630 (1993)........................... 2 ,11,13, 28
Uno v. City o f  Holyoke, 72 F.3d 973 (1st Cir. 1995).......  23
Velasquez v. City o f Abilene, 725 F.2d 1017 (5th

Cir. 1984) ..................................................................................  23, 24
Village o f Arlington Heights v. Metropolitan Housing  

Dev. Carp., 429 U.S. 252 (1977) 12



V

Cases—Continued: Page

Westwego Citizens fo r  Better Gov’t  v. C ityofW estw ego,
872 F,2d 1201 (5th Cir. 1989) ...............................................  23

Wise v. Lipscomb, 437 U.S. 535 (1978).... ....................... . 12

Constitution, sta tu te  and rule:

U.S. Const. Amend. XIV (Equal Protection
C lau se)......................... ....................................—................  1 ,2 ,11

Voting Rights Act of 1965,42 U.S.C. 1971 et seq.:
§ 2,42 U.S.C. 1973 ............ ............................................... 1
§ 5, 42 U.S.C. 1973c............... ..................... ..................... 1

Fed. R. Civ. P. 52(a) .................................................................  23

Miscellaneous:

The A lm anac o f Am erican Politics 1998 (1997)................  19



i n  tf)t Cupreine C o u rt of tfie U n ite d  States*

No. 99-1864

J a m e s  B . H u n t , J r ., G o v e r n o r  o f  N o r t h  C a r o l i n a ,
ET AL., APPELLANTS 

V.
M a r t i n  C r o m a r t i e , e t  a l .

No. 99-1865

A l f r e d  S m a l l w o o d , e t  a l ., a p p e l l a n t s

v.
M a r t i n  C r o m a r t i e , e t  a l .

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF NORTH CAROLINA

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE SUPPORTING APPELLANTS

INTEREST OF THE UNITED STATES
This case concerns a district court’s finding that a state 

election districting plan was drawn predominantly on the 
basis of race, in violation of the Equal Protection Clause of 
the Fourteenth Amendment. The United States enforces 
Sections 2 and 5 of the Voting Rights Act of 1965 (42 U.S.C. 
1973, 1973c), which require, in part, that States and political 
subdivisions not engage in voting practices that deny citi­
zens an equal opportunity to elect representatives of their 
choice on account of their race. Those statutes sometimes 
require States to take the racial consequences of their 
districting decisions into account. The United States has an 
interest in ensuring that States have reasonable leeway to

(1)



2
design districts that comply with both the Voting Rights Act 
and the Equal Protection Clause. The United States has 
participated in all three prior appeals in related litigation. 
The United States was a party-defendant in Shaw v. Reno, 
509 U.S. 630 (1993), and filed briefs as amicus curiae in 
Shaw v. Hunt, 517 U.S. 899 (1996), and in Hunt v. Cro- 
martie, 526 U.S. 541 (1999).

STATEMENT
1. In Shaw v. Hunt, 517 U.S. 899 (1996) (Shaw IT), this 

Court struck down North Carolina’s 1992 congressional dis­
tricting plan under the Equal Protection Clause of the Four­
teenth Amendment. The Court held that District 12 in that 
plan had been drawn predominantly on the basis of race, id. 
at 907, and that it did not satisfy strict scrutiny, id. at 910- 
918.

After this Court’s decision, the North Carolina General 
Assembly attempted to enact a new districting plan. The 
state Senate had a Democratic majority and the House had a 
Republican majority. State Senator Roy A. Cooper, III, and 
State Representative W. Edwin McMahan, the chairmen of 
the Senate and House redistricting committees, provided 
affidavits and testimony detailing the goals and purposes of 
the committees. J.S. App. 81a-87a; J.A. 179-230 (Cooper); 
J.S. App. 137a-154a; J.A. 231-244 (McMahan). Among the 
avowed goals of the committees were “curing the consti­
tutional defects of the 1992 Plan by assuring that race was 
not the predominant factor in the new plan” and “drawing 
the plan to maintain the existing partisan balance.” J.S. 
App. 11a. To achieve that partisan goal, “the redistricting 
committees drew the new plan (1) to avoid placing two in­
cumbents in the same district and (2) to preserve the 
partisan core of the existing districts to the extent consistent 
with the goal of curing the defects in the old plan.” Ibid.

District 12 in the 1997 Plan is different from the district 
found unconstitutional in Shaw II  in important respects. As



3
this Court noted in its prior decision in this case, Hunt v. 
Cromartie (Hunt I), 526 U.S. 541, 544 (1999), District 12 
splits six counties, as opposed to ten in the unconstitutional 
plan. The distance between its farthest points has been 
reduced from 160 miles to 95 miles. Ibid. African-Americans 
are no longer a majority in the district, constituting approxi­
mately 43% of its voting age population, 46% of registered 
voters, and 47% of its population. Ibid. District 12 is also 
fully contiguous and, unlike the unconstitutional District 12 
in the 1992 plan, it does not employ artificial devices such as 
“crossovers” to achieve contiguity. J.S. App. 83a.

The 1997 Plan was enacted by the legislature on March 31, 
1997, despite an earlier belief by many that the party divis­
ion between the two houses of the legislature would make 
such agreement impossible. J.S. App. 2a, 82a, 138a; J.A. 240. 
Twelve of the 17 African-American members of North 
Carolina’s House of Representatives voted against the plan. 
J.S. App. 140a.

2. a. Appellees filed an amended complaint alleging that 
District 12 under the 1997 Plan is, like its predecessor, an 
unconstitutional gerrymander. See Hunt /, 526 U.S. at 544. 
The parties filed competing motions for summary judgment 
and, in April 1998, the district court, by a 2-1 majority, 
granted appellees’ motion. Id. at 545; see J.S. App. 243a- 
282a.

b. On May 17, 1999, this Court in Hunt I  unanimously re­
versed the order granting summary judgment to appellees. 
The Court noted that “[t]he task of assessing a jurisdiction’s 
motivation * * * is an inherently complex endeavor” and 
that it “requir[es] the trial court to perform a sensitive in­
quiry into such circumstantial and direct evidence of intent 
as may be available.” 526 U.S. at 546 (citation omitted). 
Assessing the summary judgment record, the Court noted 
that appellees had offered “circumstantial” evidence con­
sisting of geographic and demographic data, id. at 547, 
which, “[vjiewed in toto, * * * tends to support an



4
inference that the State drew its district lines with an 
impermissible racial motive—even though they presented no 
direct evidence of intent.” Id. at 548-549. The Court also 
noted, however, that appellants had produced testimony by 
the legislators who drew the plan that their intent was “to 
make District 12 a strong Democratic district,” and what the 
Court described as “[m]ore important” expert testimony 
examining the demographics and the entire boundary of the 
district. Id. at 549. That testimony tended to show “a high 
correlation between race and party preference,” id. at 552, 
because “in precincts with high black representation, there is 
a correspondingly high tendency for voters to favor the 
Democratic Party” and vice versa, id. at 550. The expert, 
Dr. David W. Peterson, concluded that “the data as a whole 
supported a political explanation at least as well as, and 
somewhat better than, a racial explanation” for the con­
figuration of District 12. Ibid.

The Court noted that a political explanation for District 12 
would make the district constitutional, since “a jurisdiction 
may engage in constitutional political gerrymandering, even 
if it so happens that the most loyal Democrats happen to be 
black Democrats and even if the State were conscious of that 
fact.” 526 U.S. at 551. To reject that political explanation, 
the district court had necessarily “either credited appellees’ 
asserted inferences over those advanced and supported by 
appellants or did not give appellants the inference they were 
due.” Id. at 552. In either event, “it was error in this case for 
the District Court to resolve the disputed fact of motivation 
at the summary judgment stage.” Ibid.

3. On remand, the three-judge district court held a three- 
day trial. On March 7, 2000, the court ruled by a 2-1 margin 
that District 12 “continues to be unconstitutional.” J.S. App. 
35a.

a. The majority initially repeated, virtually verbatim, 
many of the same facts regarding the racial composition, 
party registration, and statistical measures of compactness



5
that it had relied on in granting summary judgment to 
appellees. That evidence tended to show that cities and 
counties were divided such that the portions within District 
12 had substantially higher percentages of African-Ameri­
cans than the portions outside District 12, see J.S. App. 12a- 
14a, and that the boundary of District 12 excluded certain 
precincts in which 54-69% of the voters had registered as 
Democrats, see id. at 13a-14a. It also showed that District 
12 scored relatively low on statistical measures of com­
pactness. Id. at 15a-17a. Compare J.S. App. 247a-253a (dis­
trict court opinion at summary judgment stage).

The majority also referred to evidence presented by 
plaintiffs’ expert, Dr. Ronald Weber. According to the court, 
Dr. Weber “showed time and again how race trumped party 
affiliation in the construction of the 12th District and how 
political explanations utterly failed to explain the composi­
tion of the district.” J.S. App. 26a. The majority also stated 
that Dr. Weber had “presented a convincing critique” of 
the “boundary segment” analysis presented by the State’s 
expert, Dr. David Peterson, and discussed by this Court in 
its opinion in Hunt I, and that Dr. Weber had found that Dr. 
Peterson’s study “‘has not been appropriately done,’ and was 
therefore ‘unreliable’ and not relevant.” Id. at 27a. The 
majority did not itself specify the particular respects in 
which Dr. Peterson’s analysis was deficient.

The majority finally referred to two other items of evi­
dence to support its conclusion that race, and not politics, 
was the predominant factor underlying the creation of Dis­
trict 12. First, the majority referred to the testimony of 
Senator Cooper. The majority stated that “[t]he conclusion 
that race predominated was * * * bolstered by” an allusion 
by Senator Cooper to a desire to achieve “racial and partisan 
balance” as factors underlying the redistricting plan. J.S. 
App. 27a. The majority found “simply not credible” Senator 
Cooper’s contention that “he did not mean the term ‘racial 
balance’ to refer to the maintenance of a ten-two balance be­



6
tween whites and African-Americans.” Ibid. Second, the 
court referred to an e-mail to Senator Cooper that had been 
written by Gerry Cohen, the legislative employee who had 
been responsible for technical aspects of drawing the 1997 
and earlier state plans. See id. at 8a. The e-mail discussed 
the racial composition of a different district—District 1— 
and then added that “I [Cohen] have moved Greensboro 
Black community into the 12th, and now need to take [ajbout 
60,000 out of the 12th. I await your direction on this.” Ibid.) 
see J.A. 369 (full text of e-mail). The majority stated that 
the e-mail “clearly demonstrates that the chief architects of 
the 1997 Plan had evolved a methodology for segregating 
voters by race, and that they had applied this method to the 
12th District.” J.S. App. 27a.

The majority concluded that the legislature had “es­
chewed traditional districting criteria such as contiguity, 
geographical integrity, community of interest, and com­
pactness in redrawing the District,” but instead had “utilized 
race as the predominant factor in drawing the District.” J.S. 
App. 29a. The court entered an injunction against use of 
District 12 in this year’s elections. Id. at 35a.1

b. Judge Thornburg dissented from the panel’s holding 
that District 12 is an unconstitutional racial gerrymander. 
J.S. App. 37a-68a. In his view, appellees—who had the 
burden of proving that race was the predominant factor— 
had “failed to carry their burden through either direct or 
circumstantial evidence.” Id. at 45a. He stated that the 
State had “produced ample and convincing evidence which

1 The district court also held that District 1 was -subject to strict scru­
tiny, but it found that the State had satisfied that standard. J.S. App. 30a- 
35a. Appellees did not perfect their appeal from that ruling, and the 
district court granted appellants’ motion to dismiss appellees’ appeal on 
August 3, 2000 (Docket No. 178). Accordingly, although the district 
court’s ruling that District 12 is unconstitutional is now before this Court, 
the district court’s ruling that District 1 is constitutional is no longer at 
issue, and will not be further addressed herein.



7
demonstrates that political concerns such as existing consti­
tuents, incumbency, voter performance, commonality of 
interests, and contiguity, not racial motivations, dominated 
the process surrounding the creation and adoption of the 
1997 redistricting plan.” Id. at 45a-46a. He noted that the 
1997 Plan’s drafters “recognized the necessity of creating a 
plan which would garner the support of both parties and 
both houses” by “protect[ing] incumbents and thereby 
maintain[ing] the then existing 6-6 partisan split amongst 
North Carolina’s congressional delegation.” Id. at 46a. Since 
District 12 had a Democratic incumbent, “common sense as 
well as political experience dictated ascertaining the strong­
est voter performing Democratic precincts in the urban 
Piedmont Crescent.” Id. at 47a. The fact “[t]hat many of 
those strong Democratic performing precincts were majority 
African-American, and that the General Assembly leaders 
were aware of that fact, is not a constitutional violation.” 
Ibid.

Judge Thornburg addressed Dr. Weber’s testimony that 
District 12 was drawn on a predominantly racial, and not 
political, basis, because the District failed to include some 
Democratic precincts that had relatively low African-Ameri­
can populations. Judge Thornburg noted that “there is no 
dispute that every one of the majority African-American 
precincts included in the Twelfth District are among the 
highest, if not the highest, Democratic performing districts 
in that geographic region.” J.S. App. 50a. He noted that to 
include other well-performing Democratic precincts identi­
fied by Dr. Weber would have meant excluding “the highest 
performing Democratic precincts.” Ibid. He also explained 
that “few of the strong Democratic precincts to which Dr. 
Weber referred could have easily been included in the 
Twelfth District” because few of them “actually abutted” the 
District. Id. at 50a n.21. Judge Thornburg also noted Dr. 
Weber’s testimony that he had “considered no hypothesis 
other than race as the legislature’s predominant motive” be­



8
cause he had believed, mistakenly, “that the person drawing 
North Carolina’s districts could only see racial data” on his 
computer screen. Id. at 51a. Finally, Judge Thornburg 
noted that Dr. Weber had also “specifically failed to inquire 
about real world political or partisan factors which might 
have influenced the process.” Ibid.

With respect to the Cooper-Cohen e-mail, Judge Thorn­
burg explained that it “does little more than reinforce what 
is already known, and what is not constitutionally imper­
missible: North Carolina’s legislative leaders were conscious 
of race, aware of racial percentages, on notice of the po­
tential constitutional implications of their actions, and 
generally very concerned with these and every other politi­
cal and partisan consideration which affected whether or not 
the redistricting plan would pass.” J.S. App. 48a n.18. Those 
facts “contribute little to [appellees’] efforts to show that 
racial motives 'predominated. ” Ibid.

4. On March 16, 2000, this Court entered an order 
staying the district court’s injunction. 120 S. Ct. 1415.

SUMMARY OF ARGUMENT
This case presents the Court with what is likely to be its 

final opportunity to clarify the legal standards governing a 
racial gerrymandering claim before state legislatures begin 
the redistricting process triggered by the decennial census. 
Both in the Shaw context and elsewhere, this Court has 
frequently emphasized the extraordinary sensitivity of re­
districting and high costs of unnecessary federal court 
intrusion into the primary authority of the States in this 
area. For those reasons, it is crucial that the “predominant 
factor” test that governs a racial gerrymandering claim not 
be interpreted to give district courts a free-ranging license 
to substitute their judgments for those of state legislatures 
in the quintessential^ political determination of how appro­
priately to draw electoral districts.



This Court’s decisions have established that a district is 
subject to strict scrutiny when it is drawn with race as the 
predominant factor; the plaintiff must prove that traditional 
race-neutral districting principles were subordinated to 
race—not to some other factor—before strict scrutiny 
applies. As the Court has repeatedly explained, the “pre­
dominant factor” test is a demanding one. It does not license 
a district court to intrude in the core state function of re­
districting merely because the State has drawn a district 
that is majority-minority or that has a higher minority popu­
lation than neighboring districts. Nor does it permit a 
district court to intrude in state redistricting merely because 
racial considerations were a factor among others in drawing 
a particular district or in making some of the subsidiary 
districting decisions that go into a districting plan. Rather, a 
district court may intrude in districting in this context only if 
the State’s dominant and controlling rationale was race.

Under that standard, the district court in this case erred 
in concluding that the predominant factor in drawing Dis­
trict 12 was racial. First, the district court relied sub­
stantially on evidence that was incompetent to distinguish 
between race and politics as a factor responsible for the 
configuration of District 12. The crucial and uncontroverted 
fact is that in North Carolina African-Americans reliably 
vote overwhelmingly—90% or more—for Democratic can­
didates. Accordingly, any district that, like District 12, is 
drawn to concentrate reliable Democratic voters will tend as 
well to concentrate African-American voters. The evidence 
on which the district court relied that District 12 is unusually 
shaped in a way that tends to correspond with race thus 
tends only to frame the question—whether the district was 
drawn with race or political motives as predominant-—but 
not to answer it. The district court also relied on evidence 
showing that District 12 fails to include some precincts with 
high Democratic registration figures. But in a State like 
North Carolina, in which registered Democrats frequently

9



10
vote Republican, that evidence is entirely consistent with 
the legislature’s professed desire to create a district that 
would be solidly Democratic on election day, and it provides 
no basis for doubting the State’s professed political motive.

Second, the district court committed clear error in infer­
ring from certain evidence presented by appellees’ expert, 
Dr. Ronald Weber, that race was the predominant motive 
underlying District 12. For example, the district court relied 
on Dr. Weber’s testimony that precincts that had voted for 
Democratic candidates in past elections were omitted from 
District 12. The evidence on which the court relied would 
have been sufficient to tend to disprove the State’s partisan 
objective of creating District 12 as a solidly Democratic dis­
trict only if appellees had shown that including the omitted 
precincts would have resulted in a District 12 with a higher 
overall Democratic voting strength. Omitting precincts with 
Democratic voting patterns in favor of precincts with even 
more solidly Democratic voting patterns is entirely consis­
tent with the State’s professed objective. It cannot support 
an inference of predominant racial motive.

Third, the district court, based in large part on the faulty 
inferences discussed above, inferred a predominant racial 
motive from statements by Senator Cooper and legislative 
employee Gerry Cohen. Insofar as the district court’s in­
ferences in this regard were based on its earlier errors, the 
court’s conclusions should be disregarded. In any event, 
however, the inferences the district court drew from these 
statements showed at most that race was a factor underlying 
District 12. The district court thus failed to distinguish 
between a State’s mere desire to achieve a racial objective in 
districting as one factor among others and the desire to 
achieve a racial objective as a predominant motive under­
lying District 12; only the latter is subject to strict scrutiny. 
Where there is as close a coincidence of race and politics as 
in this case, a district court may not conclude that race was 
the predominant factor based solely on isolated findings that



11
in particular respects the process or result of the State’s 
districting shows that the State was aware of the racial con­
sequences of its actions or that race was a factor; to do so 
would leave States that engaged in entirely constitutional 
districting at risk of a district court’s inference that, because 
they had some racial knowledge or motivation, it must have 
been predominant.

ARGUMENT

I. THE PREDOMINANT FACTOR TEST REQUIRES 
A DISTRICT COURT TO ENGAGE IN A PARTI­
CULARLY SENSITIVE INQUIRY INTO A 
STATE’S INTENT IN DRAWING A DISTRICT, 
AND IT REQUIRES PROOF NOT MERELY THAT 
RACE WAS A FACTOR IN DRAWING A DIS­
TRICT, BUT THAT IT WAS THE PREDOMINANT 
FACTOR

A. A Shaw Claim Requires Proof That Race Was The 
State’s “Predominant Factor”

In Shaw v. Reno, 509 U.S. 630 (1993) (Shaw I), this Court 
first recognized a claim for racial gerrymandering in vio­
lation of the Equal Protection Clause. In Miller v. Johnson, 
515 U.S. 900 (1995), the Court articulated the governing 
standard: strict scrutiny is triggered only when “race for its 
own sake, and not other districting principles, was the legis­
lature’s dominant and controlling rationale in drawing its 
district lines.” Id. at 913. Race must thus be shown to be 
“the 'predominant factor motivating the legislature’s [re- 
districting] decision.” Bush v. Vera, 517 U.S. 952, 959 (1996) 
(plurality opinion) (emphasis in original); see also Shaw v. 
Hunt, 517 U.S. 899, 905 (1996) (Shaw II); Lawyer v. Depart­
ment of Justice, 521 U.S. 567, 582 (1997); Hunt v. Cromartie, 
526 U.S. 541, 547 (1999) {Hunt 7).

The “predominant factor” test is not the same inquiry 
applicable “in cases of ‘classifications based explicitly on



12
race/ ” Bush, 517 U.S. at 958, or in cases in which facially 
neutral practices are challenged on the ground that race is a 
“motivating factor in the decision,” Village of Arlington 
Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 
266 (1977). A necessary consequence of the Court’s holding 
that a district is subject to strict scrutiny only when race 
was the State’s “predominant factor” in drawing it is that a 
Shaw claim is not made out when race is merely one of the 
motives or factors considered—but not the predominant 
one—in drawing the district. Indeed, the plurality in 
Bush made that point expressly, rejecting the view “that it 
suffices [in making out a Shaw claim] that racial considera­
tions be a motivation for the drawing of a majority-minority 
district.” Bush, 517 U.S. at 959 (emphasis in original). In 
short, “[sjtrict scrutiny does not apply merely because re­
districting is performed with consciousness of race,” id. at 
958, “[n]or * * * is the decision to create a majority- 
minority district objectionable in and of itself,” id. at 962. As 
Justice O’Connor has explained, under the “predominant 
factor” test, “States may intentionally create majority- 
minority districts, and may otherwise take race into 
consideration, without coming under strict scrutiny.” Id. at 
993 (O’Connor, J., concurring).

B. The Predominant Factor Test Is A Demanding One
1. This Court has frequently noted, both in Shaw cases 

and in other redistricting cases, that “redistricting and reap­
portioning legislative bodies is a legislative task which the 
federal courts should make every effort not to pre-empt.” 
Wise v. Lipscomb, 437 U.S. 535, 539 (1978). Of course, 
federal courts serve a “customary and appropriate backstop 
role,” Bush, 517 U.S. at 985, when a state redistricting plan 
“runs afoul of federal law,” Lawyer, 521 U.S. at 577. But be­
cause “reapportionment is primarily the duty and responsi­
bility of the State,” Chapman v. Meier, 420 U.S. 1, 27 (1975), 
and is “a most difficult subject for legislatures,” Miller, 515



13
U.S. at 915, “the States must have discretion to exercise 
the political judgment necessary to balance competing 
interests,” ibid. “The task of redistricting is best left to 
state legislatures, elected by the people and as capable as the 
courts, if not more so, in balancing the myriad factors and 
traditions in legitimate districting policies.” Abrams v. 
Johnson, 521 U.S. 74, 101 (1997). See also Growe v. Emison, 
507 U.S. 25, 34 (1993). Because of the serious consequences 
of federal judicial intrusion into this most sensitive of state 
legislative tasks, “[t]he courts, in assessing the sufficiency of 
a challenge to a districting plan, must be sensitive to the 
complex interplay of forces that enter a legislature’s redis­
tricting calculus.” Miller, 515 U.S. at 915-916. See also id. at 
916 (“[T]he sensitive nature of redistricting and the pre­
sumption of good faith that must be accorded legislative 
enactments * * * requires courts to exercise extraordinary 
caution in adjudicating claims that a State has drawn district 
lines on the basis of race.”); id. at 915 (“the good faith of a 
state legislature must be presumed”).

2. The extraordinary sensitivity of the redistricting pro­
cess, coupled with the high costs of undue federal court 
intrusion into that process, demands that a district court 
scrupulously observe the substantive requirements of the 
“predominant factor” test before finding a Shaw violation. 
In some cases, of course, “[t]he evidentiary inquiry is . . . 
relatively easy.” Miller, 515 U.S. at 913. For example, “[i]n 
some exceptional cases, a reapportionment plan may be so 
highly irregular that, on its face, it rationally cannot be 
understood as anything other than an effort to ‘segregate]
. . . voters’ on the basis of race.” Shaw I, 509 U.S. at 646- 
647. Similarly, the redistricting record or the subsequent 
litigation may disclose the relevant State officials making 
clear that their “overriding purpose was * * * to create 
* * * congressional districts with effective black voting 
majorities.” Shaw II, 517 U.S. at 906; Miller, 515 U.S. at 918 
(State was “driven by its overriding desire to comply with



14
[racial] maximization demands”)- These are mere examples; 
other facts can also demonstrate that race was the pre­
dominant factor in a particular case.

In other cases, it cannot so readily be inferred that race 
was the predominant factor. For example, when (as is true in 
this case) race correlates highly with partisan voting be­
havior, it is predictable that a State that wants to create a 
district whose borders tend to concentrate members of a 
particular political party will, as a byproduct, create a 
district whose borders tend to concentrate members of a 
particular race. If that alone were sufficient to support a 
finding that strict scrutiny applies (and that the district is 
unconstitutional absent a compelling interest), a State would 
have to forego its otherwise lawful option of forming 
districts on the basis of partisan choices. Indeed, it would 
have to do so only in one category of cases—where race 
correlates highly with partisan voting behavior. That con­
travenes the settled principles that “incumbency protection, 
at least in the limited form of ‘avoiding contests between 
incumbent[s],’ [is] a legitimate state goal,” and that “political 
gerrymandering” should not be subjected to strict scrutiny. 
Bush, 517 U.S. at 964.2

Even if the State has taken race into account to some 
extent in drawing the district in such a case, that is still not 
sufficient to show that the “predominant factor” underlying 
the district is racial. As discussed above, strict scrutiny is 
not triggered where race is merely “a motivation,” Bush, 517 
U.S. at 959, in drawing a district; a Shaw claim requires 
proof that race was the 'predominant factor. Therefore,

2 See Bush, 517 U.S. at 968 (“If the State’s goal is otherwise 
constitutional political gerrymandering, it is free to use * * * political 
data * * * —precinct general election voting patterns, precinct primary 
voting patterns, and legislators’ experience—to achieve that goal regard­
less of its awareness of its racial implications and regardless of the fact 
that it does so in the context of a majority-minority district.”) (citations 
omitted).



15
where race and partisan voting behavior correlate highly, 
and a State draws a district with mixed political, racial, and 
other motivations, a district court may not merely seize on 
isolated evidence tending to show the State’s racial moti­
vation in drawing the district to conclude that race was the 
predominant factor. To permit that inference would para­
doxically hamstring state legislatures in achieving their 
political objectives in any State where race correlates highly 
with partisan voting behavior. For even if a legislature paid 
no attention whatever to race, its politically motivated 
districting decisions would likely be susceptible to a racial 
interpretation. And if the State exercised its lawful 
authority to take race into account to some extent, it would 
inevitably risk the finding of predominant racial motive that 
was made here. That result would be inconsistent with 
bedrock principles recognizing that state legislatures—and 
not federal courts—have primary responsibility for the 
politically highly charged task of drawing districts, and that 
federal courts must be particularly cautious before intruding 
into state prerogatives in this area. To trigger strict scru­
tiny, the party challenging the district must satisfy the 
heavy burden of proving that “[r]ace was the criterion that, 
in the State’s view, could not be compromised.” Shaw II, 517 
U.S. at 907.

Bush v. Vera illustrates these principles. The plurality in 
Bush initially noted findings “that the State substantially 
negleeted traditional districting criteria such as compact­
ness, that it was committed from the outset to creating 
majority-minority districts, and that it manipulated district 
lines to exploit unprecedentedly detailed racial data.” 517 
U.S. at 962. The plurality stated, however, merely that 
those factors “together weigh in favor of the application of 
strict scrutiny”—not that they required its application. Ibid. 
The plurality explained that it must therefore “consider 
what role other factors played in order to determine whether 
race predominated.” Id. at 963. As the plurality explained,



16
“[b]ecause it is clear that race was not the only factor that 
motivated the legislature to draw irregular district lines, we 
must scrutinize each challenged district to determine 
whether the District Court’s conclusion that race predo­
minated over legitimate districting considerations, including 
incumbency, can be sustained.” Id. at 965. Only after con­
cluding that there was exceptionally strong evidence suffi­
cient to show not merely that race was a factor, but that it 
was the predominant factor, did the plurality determine that 
the districts in question should be subject to strict scrutiny.3 
The same inquiry was required here.

II. THE DISTRICT COURT IMPROPERLY IN ­
FERRED A PREDOMINANT RACIAL MOTIVE IN 
THIS CASE

As this Court noted in its decision in Hunt I, the lines of 
District 12 correlate highly with race. District 12 contains 
portions of six counties; in each of them, the portion of the 
county within District 12 has a substantially higher African- 
American population than does the portion of the county 
outside District 12. See Hunt I, 526 U.S. at 548 & n.4. 
Moreover, the boundary lines of District 12 are irregular in 
shape. See id. at 547-548. Plaintiffs’ claim has always been

3 See Bush, 517 U.S. at 969 (evidence that the State itself explained 
the district “in exclusively racial terms”), 970 (evidence that “districting 
software * * * provided only racial data at the block-by-block level,” and 
that district lines were in fact determined at that level), 970 (evidence of 
use of “race as a proxy”), 971 (evidence that shape of district was “far from 
the shape that would be necessary to maximize the Democratic vote in 
that area”), 972-973 (“intensive and pervasive use of race both as a proxy 
to protect the political fortunes of adjacent incumbents, and for its own 
sake in maximizing the minority population of District 30 regardless of 
traditional districting principles”), 975 (“racial demographics and voting 
patterns * * * belief] any suggestion that party politics could explain” 
two adjoining districts, because “[t]he district lines correlate almost 
perfectly with race, while both districts are similarly solidly Democratic”) 
(citation omitted).



that this evidence demonstrated that District 12 was an 
unconstitutional racial gerrymander.

As the Court explained in Hunt I, however, the State 
advanced a different explanation for the lines of District 12. 
At the time of the 1997 Plan, the North Carolina legislature 
was divided between Republicans and Democrats, with the 
Republicans in control of the House and the Democrats in 
control of the Senate. Similarly, the State’s congressional 
delegation was evenly divided between six Democrats and 
six Republicans. The State contended that the legislators in 
charge of redistricting concluded that, in this situation, the 
only way to get a redistricting plan through the legislature 
would be to adopt a plan that maintained the six-six partisan 
split in the congressional delegation and that protected all of 
the incumbents. See J.S. App. 82a-83a, 138a-139a; J.A. ISO- 
182, 235, 240-241. Because District 12 had a Democratic 
incumbent, the result was to craft District 12 in such a way 
as to solidify the Democratic vote there. Further, it is 
undisputed that 90% or more of African-Americans in North 
Carolina regularly vote Democratic. See, e.g., J.A. 130 
(“over 90 percent” in a series of studies); J.A. 139 (“95 to 97 
percent”). Accordingly, the State contended that the cor­
relation between the district lines and race was a mere by­
product of the State’s desire to create a solidly Democratic 
District 12; the result of the State's attempt to concentrate 
Democratic voters in the district was that the most 
reliable Democratic voters—African-Americans—tended to 
be included.4

17

4 It is also significant that District 12—with a 43% African-American 
voting age population and a 47% total African-American population—is 
not a majority-minority district. As the Court explained in Lawyer, “[t]he 
fact that [the challenged district] is not a majority black district * * * 
supports the * * * 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.” 521 U.S. at 581 
(internal quotation marks omitted).



18
In short, this was a “mixed motive” case, like Bush v. 

Vera. See 517 U.S. at 959. On remand, what remained 
for the district court was to determine whether plaintiffs 
could carry their burden at trial of proving that, as between 
the two motives, race—and not the kinds of partisan con­
siderations urged by the State—was the predominant factor 
underlying the District. "The district court’s conclusion that 
plaintiffs had carried that burden was fatally defective, for 
three reasons.

A. The District Court Relied Substantially On Evidence 
That Was Incompetent To Distinguish Between Race 
And Politics As A Factor In Drawing District 12

Much of the district court’s opinion is an almost verbatim 
repetition of the court’s previous opinion on summary judg­
ment. Compare J.S. App. 10a-17a (final judgment opinion), 
23a-26a (same), 28a-30a (same) with J.S. App. 246a-253a 
(summary judgment opinion), 258a-261a (same), 262a-263a 
(same). The portions of the majority’s opinion repeated from 
its summary judgment opinion recite findings that District 
12’s boundaries correspond with race; that District 12 splits 
each of the cities and counties it enters on lines that cor­
respond with race; and that District 12 is unusually shaped 
under statistical and other measures of compactness.

The facts recited by the district court are accurate, and in 
an appropriate case they could provide substantial evidence 
of a predominant racial motive. In the circumstances of this 
mixed motive case, however, the evidence recited above only 
frames the question; it does nothing to provide an answer. It 
merely shows that there must have been some motive 
behind this unusually shaped district and that that motive 
might have been race. But the State produced substantial 
evidence showing that its predominant motives were politi­
cal, and that political motives would result in a district with 
the same unusual shape and the same racial composition. 
The evidence that District 12’s boundaries tend to corres­



19
pond with race does nothing to distinguish between the two 
motives and to determine which was the predominant 
one—the primary issue that remained open for trial after 
this Court’s remand.

Nor is that inquiry advanced by the fact, noted by the dis­
trict court in its summary judgment opinion and repeated 
verbatim after trial, that “the uncontroverted evidence dem­
onstrates * * * the legislators excluded many heavily- 
Democratic precincts from District 12, even when those 
precincts immediately border the Twelfth and would have 
established a far more compact district.” J.S. App. 25a; see 
id. at 261a (summary judgment opinion). It is true that Dis­
trict 12 excludes a number of adjacent precincts with high 
Democratic registration; the district court enumerated those 
precincts in its opinion. See id. at 13a-14a; compare J.S. App. 
249a-250a (summary judgment opinion). But, as this Court 
noted in Hunt I, the State’s evidence “showed that, in North 
Carolina, party registration and party preference do not al­
ways correspond.” 526 U.S. at 551. Indeed, the undisputed 
evidence showed that a large number of registered Democ­
rats in North Carolina regularly vote Republican. See J.A. 
397, 780; J.S. App. 173a-174a; 213a-225a.5 Accordingly, the 
State asserted that it used actual election returns by pre­
cinct—not registration figures—to assess the partisan make­
up of precincts and to construct its 1997 plan. The fact that 
District 12’s boundaries sometimes omit precincts that are 
heavily Democratic by registration does nothing to disprove

5 For example, in 1996, 54% of the State’s voters were registered as 
Democratic, while only 34% were Republicans. The Almanac of Ameri­
can Politics 1998, at 1056 (1997). Yet the Republican candidates won in 
the 1992 and 1996 presidential elections, the State’s two Senators at the 
time of the redistricting were both Republicans (although a Democrat 
defeated one of them in the 1998 election), and the State’s delegation to 
the 105th Congress consisted of six Republicans and six Democrats 
(although one of the Democratic seats was won by a Republican in the 
1998 election). Id. at 1057.



20
the State’s contention that its predominant motive was to 
create a solidly Democratic District 12, as measured by 
actual election returns.6

This Court stated in Hunt I  that “[e]vidence 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.” Hunt I, 526 U.S. at 551-552. At bottom, 
the evidence repeated from the district court’s former opin­
ion did no more than show what this Court determined 
would “not suffice” to prove a racial motivation, much less a 
predominant racial motivation. Accordingly, the district 
court’s conclusion in this part of the opinion that “where 
cities and counties are split between the Twelfth District and 
neighboring districts, the splits invariably occur along racial, 
rather than political, lines,” J.S. App. 25a, must be rejected 
as unsupported by the evidence.7

6 There is an additional defect in the district court’s inference, because 
the district court disregarded “the necessity of determining whether race 
predominated in the redistricters’ actions in light o f what they had to work 
with.” Bush, 517 U.S. at 972 n.*. The fact that District 12 excludes even 
some adjacent precincts with Democratic voting patterns would be of little 
significance, unless it could be shown as well that including those precincts 
would make the District as a whole more Democratic. Where, for 
instance, the district lines tend to exclude precincts with Democratic 
tendencies while including precincts with more pronounced Democratic 
tendencies, the exclusion of the former casts no doubt on the State’s claim 
that it was attempting to draw as highly a Democratic district as possible. 
The evidence in fact showed that this was precisely what happened here, 
whether measured by party registration or actual election returns. See Jt. 
Exhs. 107-109; see also J.A. 140 (testimony by Dr. Weber agreeing that 
excluded white precincts are not “as heavily Democratic” as the precincts 
within District 12.).

7 The State supported its conclusion that the district was drawn along 
political lines by showing that Republican victories were common in pre­



21

B. I t  Was C lea r E r ro r  F o r T he D is tr ic t C o u rt T o In fe r  
P re d o m in a n t R acia l M otive F rom  Dr, W eb er’s T e s t i­
m ony

The district court added a brief additional portion to its 
prior opinion. See J.S. App. 26a-28a. That portion purports 
to address further the question whether race or partisan 
considerations was the predominant factor in drawing Dis­
trict 12. Some of the evidence to which the district court 
refers in this portion of its opinion is essentially repetitious 
of the evidence discussed above, and it is thus no more help­
ful in distinguishing between racial and partisan motivations 
underlying District 12. But the district court also relied on 
a number of portions of the testimony of Dr. Ronald Weber, 
appellees’ expert, which the district court stated showed 
“time and again how race trumped party affiliation in the 
construction of the 12th District and how political explana­
tions utterly failed to explain the composition of the district.” 
J.S. App. 26a. That conclusion, however, was plainly wrong.

Initially, as discussed above, “party affiliation”—as op­
posed to actual partisan voting conduct—is of little relevance 
in this case and of no use in the analysis. See pp. 19-20, 
infra. It was therefore error to rely on portions of Dr. 
Weber’s testimony that were based on registration data. 
Beyond that, however, the evidence presented by Dr. Weber 
on which the district court relied was not significantly pro­
bative of race as the predominant factor in drawing District 
12. Accordingly, the court committed clear error in relying 
on that evidence.

1. The district court cited a portion of Dr. Weber’s testi­
mony in which he referred to the fact that District 12 
has more Democratic voters than adjoining Democratic

cincts abutting District 12, see J.S. App. 213a- 225a, and that the splits in 
counties and municipalities divided Democratic portions in District 12 
from Republican portions outside District 12, see id. at 189a, 191a-192a. 
The district court did not address that evidence.



22
District 8. He stated that the State, had it been following its 
partisan objectives, would have “want[ed] to take some of 
the voters in the district that you are drawing that’s overly 
safe and put them into [an] adjacent district so as to make 
that district more competitive.” Tr. 162 (J.A. 91).8

The State, however, explained the reason for this con­
figuration. District 12, in general, is no more solidly partisan 
than are at least two Republican Districts—Districts 6 and 
10. See J.S. App. 80a (election results). The proportion of 
Democrats in District 12 is therefore not suspect. And with 
respect to the specific line dividing Districts 12 and 8, the 
State explained that that line runs along the border between 
Cabarrus County (in District 8) and Mecklenburg County (m 
Districts 9 and 12). See J.A. 501 (map). To put some District 
12 Democrats into District 8, the State would have had to 
violate two political constraints that were important to the 
legislature: it would have had to move some of Mecklenburg 
County into District 8, which would have divided the county 
into three districts and thus violated the State’s consistent 
policy in the 1997 Plan of placing no county in more than two 
districts, see J.A. 179, 474-475, 780-782; see also J.A. 658; and 
it would likely have required moving some of Cabarrus 
County out of District 8 to District 12 in return, thus violat­

8 The district court referred to another portion of Dr. Weber's testi­
mony, in which he made essentially the same point, when it stated that 
“Dr. Weber showed that, without fail, Democratic districts adjacent to 
District 12 yielded their minority areas to that district, retaining white 
Democratic precincts.” J.S. App. 26a (citing Tr. 255-256 (J.A. 134-135)). 
The district court’s misapprehension of the record is apparent from its 
references to “Democratic districts adjacent to District 12,” since it is un­
disputed that, of the five districts adjacent to District 12, only one 
(District 8) had a Democratic incumbent in 1997. Moreover, the district 
court did not specify any majority-minority precincts that had been in 
District 8 in a prior plan and subsequently were “yielded” to District 12, 
and we are unable to identify any. As the map of District 12 and its 
surroundings reveals, see J.A, 483, there are no majority-minority pre­
cincts near the border between Districts 8 and 12.



23
ing the desire of Democratic incumbent Hefner in District 8, 
who lived in Cabarrus County, to represent his entire home 
county, see J.S. App. 85a; J.A. 205-206.

The district court did not discuss the State’s proffered ex­
planation or otherwise explain why it might be deficient.9 Dr.

9 Under Rule 52(a) of the Federal Rules of Civil Procedure, a district 
court “shall find the facts specially and state separately its conclusions of 
law thereon.” As this Court has stated, “there comes a point where find­
ings become so sparse and conclusory as to give no revelation of what the 
District Court’s concept of the determining facts and legal standard may 
be.” Commissioner v. Duberstein, 363 U.S. 278, 292 (1960). The courts of 
appeals, led by the Fifth Circuit, have required that district courts exer­
cise special care under Rule 52(a) in the redistricting context, and the 
district court’s failure to exercise such care is itself grounds for reversal. 
As the Fifth Circuit has explained, “[bjecause the resolution of a voting 
dilution claim requires close analysis of unusually complex factual pat­
terns, and because the decision of such a case has the potential for serious 
interference with state functions,” district courts must “strictly adhere[] 
to the [Rule] 52(a) requirements” that they “find the facts specially” and 
must “explain with particularity their reasoning and the subsidiary factual 
conclusions underlying their reasoning.” Westwego Citizens for Better 
Gov’t v. City of Westwego, 872 F.2d 1201,1203 (1989) (quoting Velasquez v. 
City of Abilerie, 725 F.2d 1017, 1020 (5th Cir. 1984)). Other courts of 
appeals similarly “require a particularly definite record for voting rights 
cases.” Cousin v. McWherter, 46 F.3d 568, 574 (6th Cir. 1995); accord 
Johnson v. Hamrick, 196 F.3d 1216, 1223 (11th Cir. 1999); Lee County 
Branch o f the NAACP  v. City of Opelika, 748 F.2d 1473, 1480 (11th Cir. 
1984); Harvell v. Ladd, 958 F.2d 226, 229 (8th Cir. 1992); Buckanaga v. 
Sisseton Indep. Sch. Dist., 804 F.2d 469, 472 (8th Cir. 1986). The “bedrock 
rule” that a district court’s findings must be “sufficiently detailed to 
permit a reviewing court to ascertain the factual core of, and the legal 
foundation for, the rulings below * * * has particular force in cases of 
this genre.” Uno v. City of Holyoke, 72 F.3d 973, 988 (1st Cir. 1995). That 
includes the requirement that “the district court must discuss ‘not only the 
evidence that supports its decision but also all the substantial evidence 
contrary to its opinion.’” Ibid.; see also Velasquez, 725 F.2d at 1021 
(remanding for district court, which wrote a “long and detailed” opinion, to 
“take note of substantial contrary evidence presented by the appellants”). 
It also includes the requirement that “when the statistics are the principal 
evidence offered * * *, the district court must ensure that it thoroughly



24
Weber admitted that he did not take into account any 
of the political considerations advanced by the State. See 
J.A. 135 (“I don’t know anything about what Congressman 
Hefner asked.”), 136 (answering “No” to question whether 
he “inquired about any real world political issues that might 
have been going on that might have determined why the 
Legislature drew the line where it did”). Without some rea­
son to discredit the State’s explanation, Dr. Weber’s analysis 
does not provide significant evidence of discrimination. 
Accordingly, the district court’s inference of predominant ra­
cial motive from Dr. Weber’s evidence was “illogical” and, 
hence, clearly erroneous. See Anderson v. City of Bessemer 
City, 470 U.S. 564, 577 (1985).

2. The district court also relied on Dr. Weber’s testimony 
that District 12 contains virtually all (76 out of 79) precincts 
that are 40% or more African-American in the six counties 
that comprise the district, but it does not contain as high a 
percentage of precincts with Democratic tendencies, even as 
measured by election results. Tr. 204-205 (J.A. 105-106). 
The district court clearly erred in inferring a racial motive— 
much less a predominant racial motive—from that testi­
mony. The question is not whether there were other 
precincts in the six counties with Democratic voting patterns 
that were left out of District 12; the question is whether, if 
there are such precincts, including them in District 12 would 
have raised or lowered the overall likely Democratic vote in 
District 12. If the omitted Democratic precincts are far from 
the borders of District 12, including them would frequently 
not have been practical, and, even if it would, expanding the 
district to include them could easily have required including 
or excluding other precincts that would have resulted in an

discusses its reasons for rejecting that evidence.” Clark v. Calhoun 
County, 21 F.3d 92, 96 (5th Cir. 1994).



25
overall boost in Republican strength in District 12.10 Dr. 
Weber, however, did not attempt to show that the omitted 
precincts could have reasonably been included in District 12 
or that their inclusion would have in fact raised Democratic 
strength in the district. Cf. J.S. App. 50a n.21 (Thornburg, 
J., dissenting) (State’s evidence showed that “few of the 
strong Democratic precincts to which Dr. Weber referred 
could have easily been included in the Twelfth District”). 
Without such evidence, Dr. Weber’s testimony on this point 
proves nothing.11

3. The district court also relied on page 221 of Dr. 
Weber’s testimony (J.A. I ll)  in which he argued that split­
ting a single precinct in Mecklenburg County (Precinct 77, 
the only split precinct in District 12, see J.S. App. 84a) 
showed that race was the predominant motive. The State 
explained that the purpose of splitting that precinct, located 
at the southernmost tip of Mecklenburg County, was to con­
nect the two portions of Republican Representative Myrick’s 
district without including additional Democratic voters in 
her district. See J.S. App. 208a; J.A. 20, 617-618. That in 
turn was in service of the overall goal of protecting incum­
bents and therefore splitting Mecklenburg County between 
the two incumbents who lived there—the Democratic incum­
bent in District 12 and the Republican incumbent in District 
9. See J.A. 597-598. Neither the court nor Dr. Weber ad­

10 Insofar as Dr. Weber referred to precincts with Democratic voting 
patterns adjoining District 12, the evidence showed that those precincts 
were uniformly less Democratic than the precincts included in the district. 
See p. 20 n.6, supra.

11 The district court also referred to pages 262 (J.A. 139-140) and 288 
(J.A. 156-157) of the transcript. In those portions of his testimony, Dr. 
Weber was being cross-examined regarding his claim that Democratic 
precincts were left out of District 12. His testimony on cross-examination 
adds nothing to the analysis. At page 251 of the transcript (J.A. 131), Dr. 
Weber simply states the conclusion that “[r]ace is the predomina[n]t[] 
factor.” That too adds nothing to the analysis.



26
dressed that explanation. Although evidence of a single split 
precinct is unlikely to be significantly probative in any event, 
the failure by Dr. Weber or the court to explain why the 
State’s explanation was deficient undermines the court’s re­
liance on this testimony to infer predominant motive. See n. 
9, supra.

4. Taken individually or together, none of the portions of 
Dr. Weber’s testimony on which the district court relied 
were significantly probative even of race as a factor in draw­
ing District 12. Moreover, even if it were otherwise and Dr. 
Weber’s testimony on these points were significantly pro­
bative that race was a factor in drawing District 12, neither 
a slight increase in the percentage of Democrats in District 
12, a failure to include some isolated Democratic precincts, 
nor the splitting of a single precinct would suffice to show 
that race was the predominant factor. The district court 
committed clear error in finding Dr. Weber’s testimony suffi­
cient to support an inference that the State’s predominant 
motive in drawing District 12 was race.

C. The District Court’s Conclusions From Other Testi­
mony Were Infected By Its Earlier Errors And In Any 
Event Confuse Evidence That Race Was A  Factor In 
Drawing District 12 With Evidence That I t  Was The 
P redom inant Factor

1. The district court stated that “[t]he conclusion that 
race predominated was further bolstered by Senator 
Cooper’s allusion to a need for ‘racial and partisan balance’” 
in a statement made to the state House Committee on 
Congressional Redistricting. J.S. App. 27a. At trial, Senator 
Cooper testified that by “partisan balance,” he meant 
“[kjeeping the 6-6 split,” and by “racial balance,” he meant 
“that African Americans would have a fair shot to win both 
the First and 12th Districts, and I think that’s racially fair.” 
J.A. 222. The district court stated, however, that “[t]he 
Senator’s contention that although he used the term 
‘partisan balance’ to refer to the maintenance of a six-six



27
Democrat-Republican split in the congressional delegation, 
he did not mean the term ‘racial balance’ to refer to the 
maintenance of a ten-two balance between whites and 
African-Americans is simply not credible.” J.S. App. 27a.

When the district court made that credibility finding re­
garding Senator Cooper’s testimony, it had already made the 
errors recounted above in determining that the statistical 
and demographic evidence in the case supported an infer­
ence of race as the predominant motive. The district court 
was no doubt influenced by those erroneous conclusions in 
determining that Senator Cooper’s contrary testimony was 
not credible. Moreover, the district court’s inference that 
because “partisan balance” meant a six-six split, “racial ba­
lance” must have also meant a fixed numerical split, is belied 
by the fact that Senator Cooper’s original testimony did not 
merely refer to “partisan and racial balance,” see J.S. App. 
27a, but to “geographic, racial and partisan balance,” J.A. 460 
(emphasis added). Because the term “geographic balance” 
does not suggest the kind of division into neat numerical 
categories that the term “partisan balance” does, it is ap­
parent that Senator Cooper did not consistently mean by 
“balance” a fixed numerical division of the districts, as the 
district court apparently believed.

For the above reasons, the district court’s credibility 
finding regarding Senator Cooper is unsupported. Even if 
the district court’s finding were accepted, however, it would 
show at most that race was a motivation in Senator Cooper’s 
attempt to configure District 12. He had already testified, 
however, that “we did pay attention to race,” and that 
“[tjhat was one of the factors that was considered,” but that 
“it was certainly not the predominant] factor.” J.A. 222. 
The question in the case thus was never whether race was 
considered, but whether race was the predominant factor. 
Neither Senator Cooper’s statement that he was seeking 
“geographic, racial and partisan balance,” nor his asserted 
failure to explain what he meant by “racial balance” suggests



28
that racial balance was the predominant motive underlying 
the creation of District 12—that “[r]ace was the criterion 
that, in the State's view, could not be compromised.” Shaw 
II, 517 U.S. at 907.

2. Finally, the district court relied on the Cooper-Cohen 
e-mail, in which Gerry Cohen, the legislative employee re­
sponsible for actually drawing the 1997 Plan on the com­
puter, had said “I [Cohen] have moved Greensboro Black 
community into the 12th, and now need to take [ajbout 
60,000 out of the 12th. I await your direction on this.” J.S. 
App. 8a; see J.A. 369 (full text of e-mail). Cohen’s e-mail on 
its face merely identified the general characteristics of the 
community that had been moved into District 12 by referring 
to its racial composition—which, as this Court has noted, 
“the legislature always is aware of * * * when it draws dis­
trict lines, just as it is aware of age, economic status, relig­
ious and political persuasion, and a variety of other demo­
graphic factors.” Shaw I, 509 U.S. at 646; see also Bush, 517 
U.S. at 958 (“Strict scrutiny does not apply merely because 
redistricting is performed with consciousness of race.”). 
Accordingly, the question presented by the e-mail is whether 
the district court properly inferred from that awareness that 
“the chief architects of the 1997 Plan had evolved a 
methodology for segregating voters by race, and that they 
had applied this method to the 12th District.” J.S. App. 27a.

As with the Cooper statement, the district court made its 
inference with respect to the e-mail only after having made 
its erroneous findings that the statistical and demographic 
evidence demonstrated a predominant racial motive. Had 
the district court not made the earlier errors, it might have 
seen the e-mail in a different light, and it might not have 
drawn the dramatic conclusion from the e-mail that it did. 
Indeed, the State had explained that the reason for moving 
the community into District 12 was in part to avoid splitting 
Guilford County into three districts—a goal that, as noted 
above, see p. 23, supra, the State followed consistently with



29
respect to every county in the State in the 1997 Plan—and in 
part to bolster the Democratic vote in District 12 (a goal de­
sired by the Democratic state Senate and Congressman 
Watt, the incumbent there) and to subtract Democrats from 
the vote in neighboring District 6 (a goal desired by Republi­
can Congressman Coble, the incumbent there). See J.A. 192, 
193, 195-196, 216, 264-265, 268. The district court did not 
specifically address or assess the State’s evidence that 
these were the primary motivations for moving the portion 
of Greensboro into the Twelfth District. See n. 9, supra. 
Without an explanation of the district court’s reasons for re­
jecting the State’s proffered explanation, the district court’s 
conclusion from the e-mail is insupportable.

Finally, even if the e-mail were viewed as persuasive evi­
dence that race was a factor in moving that portion of 
Greensboro into District 12, it would not provide sufficient 
evidence to infer that race was the predominant factor in 
constructing District 12 as a whole. In this respect, again, 
Bush is instructive. In that case, the plurality noted evi­
dence that “the decision to create the districts now chal­
lenged as majority-minority districts was made at the outset 
of the process and never seriously questioned,” 517 U.S. at 
961, and that those drawing the challenged districts made 
use of “uniquely detailed racial data,” id. at 961-962. None­
theless, the plurality viewed that evidence merely as setting 
forth the question whether race or politics predominated in 
drawing the challenged districts, not as providing an answer 
for that question. Similarly here, even scattered evidence 
that race was a factor taken into account in determining one 
or another particular feature of District 12 is insufficient to 
show that race was the predominant motive underlying Dis­
trict 12 as a whole.

3. As is apparent from a review of the district court’s 
opinion, the court erred in concluding that race was the pre­
dominant motive in the creation of District 12. To a signifi­
cant extent, the court relied on evidence that could not



30
resolve the central question before the court: whether race 
or politics predominated in the construction of District 12. 
Even insofar as the district court, however, relied on evi­
dence that had to do with racial considerations, the evidence 
showed at most that race was taken into account in creating 
District 12—a fact that the State conceded from the begin­
ning. Because the district court failed correctly to ap­
preciate and apply the difference between race as a factor 
and race as the 'predominant factor, the district court’s con­
clusion that District 12 is an unconstitutional racial gerry­
mander cannot stand. To permit a district court to find a 
predominant racial motive in a case like this would put state 
legislatures that have acted entirely constitutionally at risk 
that a district court, finding that race was a factor in one or 
another feature of a districting plan, could declare the entire 
plan unconstitutional. That would threaten to immerse the 
district courts deeply in the highly political thicket of re­
districting, and it cannot be squared with the kind of sen­
sitivity toward state legislative efforts in this field that this 
Court has always required.

CONCLUSION
The judgment of the district court should be reversed.
Respectfully submitted.

Seth P. Waxman 
Solicitor General 

William R. Yeomans 
Acting A ssistan t A ttorney  

General
Barbara D. Underwood 

Deputy Solicitor General 
James A. Feldman 

A ssistan t to the Solicitor 
General

David K. F lynn 
Louis E. Peraertz 

Attorneys

September 2000