Caston v. Sears, Roebuck and Co. Brief for Appellant

    APR-14-88 03:31PM FROM-FERGUSON, STIJHALLAS ADKINS , GRESHAIASUM +7043345654 @- T-593 P.02/42 F-554 

CoJDept. ou Co i hi 4, Jb 

Phone # Phone 

Fax# Fax 8 

  

  

          

IN THE UNITED STATES DISTRICL CUURY 

FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

EASTERN DIVISION FILED 
No. $196-CV-104-B0(3) 

MARTIN CROMARITE, THOMAS ) ‘APR 4 1998! 

CEBANDLER MUSE, GLENNES PODGE ) 

WEEKS, R.O. EVERETT, J.H. 

FROELICH, JAMES RONALD 

LINVILLE, and SUSAN HARDAWAY, 

Plaintiffs, 

DAVID W. DANIEL, CLERK 
U. S. INSTRICT COURT 

E DIST. NO. CAR 

MEMORANDUM 

QERINTION 

Vv. 

) 
) 
) 
) 
) 
) 

| 
JAMES B. HUNT, JR., Governor ) 

of the State of North ) 

Carolina) DENNIS A. WICKER, ) 

1..ieutenant Governor of tha ) 

dtate of North Carolina) ) 

HAROLD J. BRUBAKER, Speaker of) 

the North Carolina House of ) 

Raprasantativeaj ELAINE ) 

MARSHALL, Secratary of the ) 

Etate of Narth Carolina) ) 

TARRY LEAKE, mambaz ol tho ) 

State Board of Elections) ) 

8. KATHERINE BURNETTE, memker ) 

f# the Stata Board of )   
lectione)] FAIGER BLACKWELL, ) 

ember of the Stats Board of |) 

locticng; DOROTHY FRESSER, ) 

ember of tha Btate Board of |) 

lections) and JUNE K. ) 

OUNGBLOOD, msmbar of the ) 

tata Board of Elections, in |) 

thelr 0ffialial Capscisiety and) 
THE NORTH CAROLINA BTATE ) 

BOARDS OF ELECTIONS, an 
pfficlial agency of the State ) 
nf North Carolina, ) 

) 
) 
) 

pafandants, 

  

This matter is beforas the Court on the Plaintiffs’ Motions 

for Preliminary Injunction and for Summary Judgment, and on the 

pefendants® Motion for Summary Judgment. The underlying action 

-hallenges the congressional redistricting plan anacted bY tha 

  
 



    APR-14-98 03:31PM FROM-FERGUSON, STEQIPHALLAS ADK Ns, GRESHAMASUM +7043345654 , 7-583 P.03/42 F-B54 

General Assembly of the State of North Carolina on Marsh 31, 

1997, contending that it violatas the Equal Protection Clause of 

the Fourteenth Amendment, and relying on tha lina of cases 

zapresanted by shaw v, Hunt, 617 U.S. 839, 116 B. Ct. 1894, 135 

L.BEd.2d 207 (1996) (“fhaw Ii"), and Miller v, Johnsen, 513 U.B. 

300, 904, 115 8. Ct. 2475, 2482, 132 L.Ed.2d 762 (1983) 

Following a hearing in this matter on Mareh 31, 1998, the 

Court tock the parties' motions under advisement and thsranfter 

{gsusd an Order and Permanent Injunctien (1) finding that the 

Twelfth Congressional District under the 1957 North Carolina 

Congressional Redistricting Plan is unconstitutional, and 

granting Plaintiffs’ Motion for Summary Judgment as to the 

twelfth Congreseional District) (2) granting Plaintiffs’ Motion 

gor Preliminary Injunction and granting Plaintiffs’ reguas’., as 

contained in ite Complaint, for a Parmanent Injunction, thnzeby 

enjoining Defendants from conducting any primary or genaral 

election for congressional offices under the redistricting plan 

anacted as 1997 N.C. Session Laws, Chapter 11; and (3) ordering 

that the parties file a written gubmiesion addresaing an 

appropriate time paricd within which the North Carolina Ganeral 

hasanbly may be allowed the opportunity to correct the 

ponstitutional defects in the 1997 Candrassiansd Redistricting 

1an, and to prasent a proposed elaction schedule to follow 

redistricting which provides for a primary election process 

Fulminating in a general congresalonal election to be hald on 

ruesday, November 3, 1998, the date of the previously scheduled 

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    APR-14-98 03:32PM FRoM-FERGUSON, STEWALLAS, ADKINS, GRESHAMLSUM +7043345654 * 7-583 P.04/42 F-554 

genaral election. 

That order was issued on April 3, 1538, by a majority of the 

three-judge panel. Cirauit Judge Sam J. Ervin, III, dissented. 

Defendants filed a Motion for a Stay of the April 3 Order, which 

was denied by this Court by Order dated April 6, 1998. 

Defendants also eppealed the April 3 Order to the 8uprems Court, 

and the appeal ip still pending in that Court. This Memorandum 

and Opinion refers to that Ozder, and shall be the opinion of the 

Court. 

BACKGRQURND 

In Shaw II the United States Supreme Court held that the 

Twalfth Congressional District created by ths 1532 Congressional 

Redisericning Plan (hereinafter, the "1592 plan“) had been Iace~ 

hasad and could not survive the required rgrrict morutiny. 517 

5.6. 899, 116 B. Ct. 1834, The five plaintiffs in Ehaw lanked   
tanding to attack the other majority-minority district (the 

irst Congressional District under the 1992 plan) because they 

ere not reglstered voters in the distriet.: Id, 

Soon after the Suprame Court ruled in ghaw IX, three 

residents cf Tarboro, North Carolina, filed the original 

romplaint in this aetion on July 3, 1396. Thess original 

blaintiffs resided in the Firat Congressional District 

(altarnatively, "District 1") as it existsd under North 

rarolina's 1992 plan. The Plaintiffs charged that the First 

bongressional District violated thelr rights to agual protection 

indez the Unitad Etates Constitution hecause race pradominated in 

3   
 



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he drawing of the District. The action was stayed pending 

resolution of yemand proceedings in haw v, Hunt, and on July 9, 

1996, the same thres Tarbora residents joined tha Plaintiffs in 

hav in €iling an Amended Complaint in that case, similarly 

rhallenging District 1. 

By Order dated Septamber 12, 1957, tha three=judge panel in 

approved a congreaslonal redistricting plan enacted on March   
1, 1997, by the Gensral Assembly as a remedy for the 

constitutional violation found by the Bupreme Court to exist in 

he Twelfth Congressional District (alternatively, "Distzict 

2"). The Shaw three-judge pansl also dismisaed without 

prejudice, as moot, the plaintiffs’ claim that ths Flrst 

Congressional District in the 1552 plan wae unconstitutional. 

Although it was a final ardezr, the Beptembar 12, 1997, decision 

pf the Shaw thres-judga panel was net preclusive of the instant 

hause of action, as ths panel was not presantad with a continuing 

Lbhallengs to the redistrioting plan.’ 

    ' Ip its final Memorandum Opinion, tha three-judge anel in 

, noted that thera was "no substantiva challenge to the 

1997] plan by any party to this action," and closed by 

xplicitly "noting the limited basie of the approval of the plan 

hat we ara empcwared to give in the context of .this litigation. 

t {es limited by the dimansiens of this civil action as that ise 

afined by the parties and tha claima properly hefore us. Hare, 

hat means that we only approva the plan as an adequata ramady 

or the specific violation of the individual equal protaction 

ights of thoas plaintiffs who succesafully challangad the : 

egislature’'s creation of former District 12. Our approval thus 

omp not—canhot—run beyond the plan's remadial adequacy with 

aspect to those parties and the squal protection violation found 

8 to former District 12. ghaw v, Hunt, No. 92=202-CIV-5-BR, at 

(E.D.N.C. Sapt. 12, 1837). 

   
   

     

    

  
 



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On Octobar 17, 1997, this Court dissolved the stay 

previously entered in this matter. On the sama day, two of the 

original threes Plaintiffs, along with four residents of District 

12, £ilad en amended Complaint challenging the 1997 remedial 

congressional redistricting plan (the "1397 plan"), and seeking a 

declaration that the Pizat and Twelfth Congressional Districts in 

the 1937 plan are unconstitutional racial gerrymanders. The 

three-judge panel was designated by order of Chlef Judgm 

wilkinsion of the Fourth Cireuit Court of Appeals, dated Januazy 

23, 1998. The Plaintiffs moved for a preliminary injunction on 

January 30, 1958, and for summary judgment on Fabruary 5, +998. 

The Defendants filed their instant summary judgment motlon en 

March 2, 1998, and a haazing on these motions was hald on March 

31, 19898. 

EACIR 

The North Carolina General Assambly convened in regular 

sespdion on January 25, 1997, and formad redistricting commuttess 

to address the defects found in the 1992 plan. Those nawly 

formed Rouse and Sanate Committees aimed to identify a plan which   pe cure the constitutional defecta and receive the support of 

majority of the members of the General Assembly. Affidavit of 

Jenator Roy A. Cooper, III ("Cooper Aff.") €3. In forming a 

workable plan, the committees were gulded by two avowed goals! 

(1) curing ths constitutional defacts of the 1992 plan by 

pssuring that race was net ths predominant factor in the new 

plan, and (2) drawing the plan to maintain the existing partisan 

3   
 



  

   
   

APR-14-98 03:32PM FROM-FERGUSON, STEPHALLAS, ADKINS , GRE SHAG UH +7043345654 I 7-593 P.07/42 F-554 
DPT vw -— = 

balance in the Btats's congressional delagation. Cooper ALE. 

¢¢s, 8, 10, 14; Affidavit of Gary 0, Bartlett, Exsoutlve 

Secratary-Director of the State Board of Elasctlons ("Bartlett 

Af€."), Vol. I Commentary at 9-10. 

To achieve the second goal, the redistricting committaeas 

drew the new plan (1) to avoid placing two incumbents in tha same 

district and (2) to presarve the partisan corsa of the existing 

distriete to the sxtant donsistent with the goal of curing the 

defects in the old plan. Cooper Aff. g14. The plan as enacted 

raflaats these directives: no two incumbent Congresamen reside 

in the same district, and each district retelna at least 60% of 

the population of the old district. Cooper Af¢., 98, affidavit of   
The Twelfth Conaremsional Digtzict 

ens W. Bdwin MoMahan ("McMahan Aff.") $7, 

piutzict 12 is ona of the six predominantly Demcozatioc 

Histriovs established hy the 1997 plan to maintain the 6-6 

  artisan division in North Carelina's congressional delegation. 

{gtrict 12 is not a majority-minericy district,’ but &6.67 

ercont of its total population is African-American. Bartlett 

$§2,, Vol. I Commentary at 10 and ll. District 12 is composed of 

ix counties, all of them split in the 1937 plan. The racial 

»omposition af the parta of the six sub-divided counties amsigned 

  Re 

! rhe Twelfth is not a majorityeminority district as 

easurad by any of three possible criteria. African-Americans 

cnstituta 47 percent of the total population of District 12, 43 

arcent of the voting age population of the District, and 46 

SEgeny of the registered voters in the District. Paterson ALf., 

t 8. 

  

6 

  
 



  

   
   
  

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ro District 12 include threes with parts over 50 percent African- 

  erican, and three in which the African-American percentage is 

ndexr 350 percent. paclaratisn of Ronald E. Webher ("Webber 

ea.”) 18, However, almost 75 pereent of the total population 

in District 12 comes from tha three county parts which ars 

majority African-American in populations Macklenbuzg, Forsyth, 

Lnd Guilford eountlas. id. Tha othar threes county parts 

{Davidaon, Iredell, and Rowan) have narrow corridors which pick 

ip as many African-Amaricans aB are needad for tha district to   each ite ideal size.’ Id. 

Wheres Forsyth County was eplit, 72.9 percent of tha total 

opulatien of Forxayth County allocated to Diatriot 12 18 African- 

erican, while only 11.1 percent of its total population 

assigned to neighboring Discrist 5 ig African-American. Id. 920. 

imilarly, Mecklenburg County ia split so 51.8 parcent of ics 

otal papulatien allocated to District 12 is African-American, 

hile only 7.2 pardent of the total population assigned to 

ndjolining District 3 ia African-American. 

A similar pattern emerges when analyzing the cities and 

b owna split betwesn Distrist 12 and ite surrounding districts: 

Lhe four largest oitiaes asplgned to District 12 are split along 

racial lines. Yd. 923. For example, where the City of Charlotte 

ls split between pistrict 12 and sdjacent pistrict 9, 59.47 

pus—— 
  

! An equitably populated congressional district in Nozth 

nayolina needs a total population of about 552,386 pereons using 

1990 Census data. Weber Dac. ¥33. 

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   APR-14-98 03:33P M FROM FERGUSON S WALLAS, ADKINS, GRESHAMASUM ~~ +7043345654 kJ 7-583 P.09/42 F-554 

percent of the population zssignad to Dlatrict 12 is African- 

American, while enly B.12 percent of the Charlotte population 

assigned to District 9 la African-American. Affidavit of Martin 

B. McGeas {"McGes Aff."), Ex. L. And where the ¢ity of Greansboro 

ig gplit, 55.58 percent of the population assigned to Dletriar 12 

is African-American, while only 10.70 percant of thes population 

agaigned to District 6 is African-American. Id. 

An analysis of the voting precincts immediately surrounding 

Distrist 12 reveals that the legislature did not simply create a 

majority Democratic district amidst surrounding Republican 

precincts. For example, around the Southweat edge of Distriat 12 

(in Mecklenburg County), the legislatures included within the 

digtriet's berders several precincts with racial compositions of 

40 to 100 percent African~-Amarican; whils excluding yom the 

district voting pracincts with leas than 1] percont Afrigsn- 

American populstion, but heavily Democratic voting ragistrations. 

among Mecklenburg County precincts which are immediately adjacent 

to Diatrict 12, but net ineide it, are precincts with 58.818   ercent of voters registered as Democrats, and precincts that are 

56.464 parcent Damooratia, 54.213 percent Democratic, 59,138 

parcent bDemoczatic, 59.225 pezxcent Damocratia, 54,498 parcant 

hemacratie, 59.038 parcant Democratic, 55.72 percent Democratic, 

54,595 percent pemocratic, 54.271 percent Democratic, 63.452 

barcent Democzatie, snd 59.453 pordent Demosratic, Id., Bx. P. 

similarly, Forsyth County preaincta that are immediately adjacent 

0, but not inside, Distries 12 include precincts with 57.371 

  
 



    APR-14-88 (03:33PM FROM-FERGUSON, SY WALLAS ADKINS , GRESHAUASUM +7043345654 . 7-583 P.10/42 F-554 

percant Democratic registration, 63.253 percent Remocratic 

registration, 65.747 percent Democratic registration, 65.747 

percent Democratic registration, 76 parcent Democratic 

registration, 55.057 percent Damacratisc ragistratien, 55.307 

percent Democratic registration, 56.782 parcent pemocratic 

reglatration, 55.836 percent Demecpatic registration, and 60,113 

parcent Demoaratie registration. Id., EX. O. Finally, District 

12 was drawn to exslude precincts with 59.679 percent Democratic 

registration, 61.86 percant Democratic zestateation, 58.145 

[percent Democratic registration, 62.324 percent Democratic 

registration, 60.203 percent Democratic ragintration, 56.735 

percant Democratic reglstration, 66.22 percent bemecratio | 

registration, 57.273 percent Democratic registration, 55.172 

percent Democratic registration, and 63.287 parcent Democratic 

registration, all in Guilford County. Id., 8x. No 

On the North Carolina map, District 12 has an irregqulsr 

phape and is barely contigucus in parts. Its Bouthwest coymner 

Lies in Mecklenburg County, very close to the South Carolina 

border, and includes parts of Charlotte. The District moves 

orth through Rowan County and into Irodell County: There it 

Jute West to plck up parts of the City of Statesville. Mere than 

5 percent of tha Btatesvilles population that is included in 

nistrict 12 4s African-Amsrican, while only 18.88 percant of the 

hopulation of Statesville excluded from District 12 is African- 

hmarican. McGee Aff., Ex. L. ¥rom Statesville, the District 

poves East into Rowan County. There it dips to the Bouth to 

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{nclude Salisbury, befora turning to the Northeast and entering 

pavidson County and the City of Thomasville. over 41 parcent of 

the populations of Balisbury end Thomasville that are included in 

digtrict 12 are African-American, whils only 15.39 and 8.35 

percent, raspactively, of those that sze excluded from the   
{gtziot are African American. Id. The District makas a 

orthwesterly incursion into Forsyth County to includs parts of 

inston-Ealem, where 77.33 percent of the population within 

jetriat 17 is African-American, and only 16.06 percent of the 

opulation left out ig African-American. Id. Tha Distriet moves 

o the East and narrows dramatically before cpening up again to 

include the predominantly African-American parte of Greensbora, 

Lore the District ends. 

objective, numerical studies of the compagtness 3 

sengressional districts are also svallatie: In his report, "An 

pvaluation of North Carolina's 1998 Congrsnsional pistzriatsn,” 

freZassy Gerald R. Webater, one of the pafendanta' expert 

ritnagses, presente atatigtical analyses of “gompaxator 

hompactneas indicators” for North Carolina's congressional 

yistriots undar the 1997 plan. In measuring the districts’ 
LJ 

10   
 



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dispersion compactnass' and parimster compactness,’ Professor 

Webster offers two of the "most commonly recognized and applied” 

compactness indicators. Wabster, at 13 (citing Pildes & Niemi, 

Expressive Harms, "Bizarre Districts,” and Voting Rightas 

Evaluating Election-District Appearancas After Shaw v. Reno, 92 

Mich.L.Rev. 483, 371-573, table 6 (1993) (hexeinafter, "Pildes & 

Niemi"); apd see Bush v. Vera, 517 U.8. 352, —, 116 8. ct. 1941, 

1952, 135 L.Ed.2d 248 (1996) (citing Plldes £ Niami compactness 

factors ae.supporting evidence for holding three Texas 

congressional diatricts unconstitutional). 

In dig¢gcusaing the relative normalay of various compactness   sasures, Pildes and Niemi suggest that a nlow" disparaioen 

Cenearears measure would be equal to or leas than 0.15. Pildes 

s Niaml, at 584. They suggest that a "low" parimater compactnasa 

maagure is squal to or less than 0.05. Id. North Carolina's 

rwelfth Congressional District under the 1937 plan has a 

Jigparsion ccmpactneds indicator of 0.109 and a perimeter 

pompactnssd indicator of 0.041. Webster, at table 3. Thess 

  

{ wpigparsien compactna@s” maasurea the geographic 

rdisparsion” of a district. To calculate this a circle is 

hi roumscribed eround a district. Tha FapoTEs. coefficient {is the 

roportion of tha area of the aizeumgeribed eirgle which in also 

noludad in the district. This measurs ranges from 1.0 (most 

Fompact) to 0.0 (least aompact). Waebstar, at 14. 

3 wperimater compactnass" is based upon the caloulation of 

he district's perimetar. The reported coefficient ig the 

hroportion of the area in the digtrict relativa to a circla with 

he same perimater. This moasuze xangao from 1.0 (most compact) 

bo 0.0 (least compact). Webster, at lé. The equation used hare 

ls (((4 x IT) » Area of district) + (District's Porimeter2)). 

[ebstar, at tabla 3. 

1   
a LogagEaBess PAGE 12 
 



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' 
4 
. 

£igures are much lower than the mean compactness indicators foz 

Nozth Carolina's twelve congressional districts undar the 1397 

plan. The avarage disparsion compactness indicator for tha Btate 

{s 0.354, and the aversge perimetar compactness indicator is 

0.142. Id. The next lowest dispersion compactnass indicator 

aftar District 12 is the 0.206 in the Fifth Congressional 

District, and the next lowest perimeter compactness indicster is 

the Firat Congressional District's 0.107. Id. 

[5s Zhe plnekfenctocslonil uasik 

piatrict 1 is another predominantly Democratic district   stablished by the 1957 plan. Unlike piatriet 12, it is a 

ajority-minority digtrict, based on percentages of the total 

opalatien of the District,’ as 50,27 percent of its total 

opulation is African-Amarican. 1d., Vol. I Commentary at 10. 

{strict 1 ‘Le composed of tan of the 22 countien split (n drawing 

he statewide 12 district 1597 plan. Waker Dec. g16. Ralf of 

he twerty counties represented in Digtrict 1 are split. Id. Of 

Lhe ten gub~divided counties assigned to pDistziet 1, four have 

  arts with over 50 parcent African-American population, four 

thers have parts with over 40 percent African-American 

opulation, and two others have parts with over 30 percent 

frican=-American population. Id., 17. 

In each of the ten countias that sre split between District 

  

¢ While 50.27 percent of the total population of District 1 

8 African-American, only 46.54 passin of the voting aye 

population is African-American, asad on tha 1930 cansus data. 

Parclotc Aff., Vol. T Commentary at 138. 

12 

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! 
t 
J 
. 

1 and an adjacent district, the percent of tha population that is 

African-American is higher inside the district than it is outside 

the district, but within the mame county. Id., 919 and Table 2. 

The dioparltios are less significant than in the county splits 

invelving Dletsint 12. 1d4., Table 2. T¥or example, whare 

Baaufort County is split betwsan Districts 1 and 3, 37.7 percent 

ef the totpl population of Beaufort County allocatad to District 

}: is African-American, while 22.9 percent of the total population 

of Beaufort County assigned to District 3 is African-American. 

Similarly, nine of the 13 cities and towns splic between 

District 1’ and its neighboring districts are split along secial 

linea. 1Id., 922. Por example, where the City of New BeZn is 

split between District 1 and adjacent District 3, 48.27 percent 

of tha populatien assigned to District 1 ia African-American, 

while 24.49 percent of tha New Barn population asslgnad to 

District 3 Ls African-American, McGaa Aff., Bx. L. 

Viawed on the North Carelinz map, District 1 is not as 

irregular 48 District 12. In the North, it spans 151.2 miles   cross, from Roxboro, Person County, in the West, to Sunbury, 

ates County, in the East. Affidavit of Dr. Alfred W. 8tuart 

(“Stuart AfL."), table 1. It is shaped roughly like the state of 

lorida, although the protrusien to the Sauth from ite 

"panhandle" is only approximately 150 miles long (to Goldeboro, 

[layne County, with two irregulazities jutting into Jones, Craven, 

hnd Beaufort Counties. Caopezr Aff., attachment. These 

| rregularities surround tha peninsular extension of the Third 

13 

  oi Ply 
Fr ge. 

APR 14 ’'98 15:52 +7043345654 PAGE. 14 

 



  

   
   
  

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Hae 
congressional pletzrict from the East, allowing the incumbent from 

the pravioys Third Congressional District to retain his residence 

ithin the boundaries of the same district, and aveiding placing 

two incumbents in District 1. 

The "éomparater compactness indicators” from District 1 are 

muah closet to the Narth Carclina mean compactness indicators 

than are shots from District 12. For example, pistrict 1 has @& 

cdaperaton’ aompactness {ndicator of 0.317 and a pozimetor 

conpactnash {indicator of 0,107. Webster, at tabla 3. This 

dispersion’ compactnasa indicator is not significantly lowar than 

the state’ mean indicator of 0.354, and is higher than the 

dispersion compactness indicators of nigtriets 12 (0.108), § 

(0.292), ahd § (0.206). Id. It may be noted that Districts 5 

and 9 are hext to, and necessarily shapad by, District 12. 

District L has ao perimeter compactneds {ndicator of 0.107, which 

is lower than North Carolina's mean perimeter compactness 

indicator (0, 152), but much higher than pildes and Niemi's 

suggested Low" perimater compactness {ndicatar (0.08). District 

1's perimeter compactness indicator is also much highar than that 

of District 12 (0.041). Id. 

| pISCUSSION 
Tha Equal protection Clausa af the United States 

Constitution provides that no 8tate "shall deny to any person 

within ita jurisdiation tha sequal protection of the laws." Us 8. 

const. amend. 14, § 1. The Unitad States Supreme Court sxplained 

5 Miller ¥ Johnnoh, dASebelliimilodllinlis 8: Ct: at 2462, th   

    
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FROM NC RG SPECIRL LITIGATION 9-716-6763 P4.14.1998 1 P.15S 

ii 

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a
 

the centzal mandate of the Bqual Protection Clause "ia racial 

neutrality in governmental decisionmaking. Applicaticn of this 

mandate clearly prohibits purposeful discrimination between 

{dividuals on ths basis of races, Shaw ¥. Reno, 50% u.5. 630, 

642, 113 ]. Cr. 2816, 2824, 125 L.Bd.2d 511 (1993) ("Ehaw XL") 

(editing daahington. v, DICE) §26 U.S. 228, 233, 96 §. Ct. 2040, 

2047, 48 L.rd.2d 597 (1876)). 

AB the Suprame Court resognized, howevar, ths usa of this 

principle in ngleoatoral districting is a most delicate task.’ 

Millek, 515 v.8., at 905, 115 B. Ct., at 2483. Analysis of 

suspect districts must begin from tha premise that "[l}awa that 

explicitly distinguish between individuals on racial grounds fall 

within the! core of [the Equal Protection Clause's] prohibition.” 

ghaw I, 50b U.5., at 642, 113 6. Ct., at 2824. Beyond that, 

however, the Fourtaanth Amendmant's prohibition "extends not juet 

to explicit racial classifications,” Miller, 515 U.S., at 903, 

115 §, ot. at 2483, but also to laws, neutral on thelr face, but 

runexplaindble on gzounda other than race," Jrlington Hedghfa Vv. 

Metzopolitdn Housing Develspment Corp., 429 U.8. 252, 266, 57 8. 

ct. 555, 364, 50 L.Bd.2d 450 (1977). 

In challenging the cenatitutionality of a State's 

itasricsing plan, the "plaintiff bears ths burden of proving: the 

race~based motive and may do 50 either through 'clrcumstantial 

vidence of a digtrist's shape and demographics' or through 'more 

Hirect evidences going to lagislative purpess.'" Shaw II, 317 

D8, at = 116 8. Ct, , at 1500 (quoting Miller, 515 U.b.y at 

{ 

1§   
APR 14 ’'98 15:53 +7043345654 PAGE. 16 

 



    

APR-14-98 03:35PM 

FROM NC AG SPECIAL LITIGATION 19-716-6763 84.14.1998 

Es a El , ,, — 

| 
916, 115 §. Ct., at 2488). In the final analysis, the plaintise 

muat show “that race was the pradominant factor motivating the 

legislature's decision to place a significant numbex of voters 

within or Without a particular district.” Ig. (quoting Millaex, 

51% U.6., At 916, 115 6. Ct., at 2488), 
Once a plaintiff demonstrates that race was the predominant 

factor in yedistricting, the applicable standard of review of the 

new plan 1b vgtriot scrutiny.” Thus, in Miller the Supreme Court 

held that perio scrutiny applies when race is the "predominant” 

consideration in drawing the district lines such that "the 

legislaturd subordinata(s) racs-neutral districting princinles 

. + . to rholal considerations.” 515 U.S., at 916, 115 8. Ct., 

at 2488. Onder this etendard of review, a State may sscapo 

censure while drawing racial distinctions only if it is pursuing 

a "compall{ng state interast." Shaw II, 517 V.B., at —, 116 BH. 

ct., at 1902. 

Howevdr, "the means ahocoen to accomplish the Btate‘s   I 
wien pyrpose must ba specifically and narrowly framed to 

I 

ccompliash that purpose." Hyaant v, Jackeon Bd, gf Ed., 476 U.B. 

R67, 280, 106 8. Ct. 1842, 1850, 90 r.Pd.2d 260 (1986) (op=nicn 

hE powall, J). As the Supremes Court required in ghaw Il, where 

  Stata's plan has been found to be a racial gezrrymander, that 

tate must ‘now "ghow not enly that its redistricting plan was in 

ursuit of a cempalling state interest, but alsc that ita 

Higetrioting legislation is narrowly tailored to achieva that 

bompelling interest." 517 u.8., at —, 116 5. Ct., at 1902. 

16   
  

FROM-FERGUSON, STRSEAWALLAS , ADKINS, GRESHAMASUM ~~ +7043345654 * 7-593 P.17/42 F-554 

1 1 P.16



APR-14-88 03:36PM FROM~-FERGUSON, $ WALLAS, ADKINS, GRESHAM&SUM  +7043345654 3 T-593 P.18/42 F-554 

FROM NC RG SPECIAL LITIGATION 199-716-6763 B4.14.1998 1 l 

Ah 
a pe — 

We axe cognizant of the principle that "redistricting and 

Pel? 

reapportidning legislative bodies is a legislative task which the 

federal cqurts should make every sffort not to preempt.” Hise v, 

Liggsonh, 437 v.5. 535, 533, 98 8. Ct. 2493, 2497, $7 L.Bd.2d 411 

(1978) Hi omitted). “A State should ba given the 

opportunity to make its own redistriating decisions so long as 

that is practically possible and the Etats choosas to take the 

opportunity. When it deas take the opportunity, the discretion 

of the foderal court is limited except toc the extent that the 

plan itaelf vuna afoul of federal law." Lawvar v, Dap't of 

Justics, = v.85. —, —, 117 8. Ct. 2186, 2193, 138 L.Ed,2d 6&3 

(1997) (4 kanal citations omitted). Thus, when the federal 

courts declare an apportionment scheme uncocnstitutional-as the 

Suprsma Cojrt did in Ehaw II-it 1s appropziate, "whenever 

practicablp, to afford a reasonable opportunity for the 

Lasielaturh to meat constitutional requirxamants hy adopting a 

substitute maasure rather than for the fsderal court ta devise 

and order into effect its own plan. The new legislative plan, if 

forthoominj, will then be tha governing law unless it, too, is 

challenged. and found to vialate the Gomatitution. “ Ylge, é37 

U.8., ot 540, 58 8. Ct., mt 2497. 

Is The Twelfth Congressional District | 

As noted above, the final dacisien ef the three-judge panel 

in haw only approved the 1997 Congressional Redistricting Plan 

“au an sdeguate remady for the spscifia violation of the 

individual equal protection rights of these plaintiffs whe 

' 17   
APR 14 ’98 15:53 +7843345654 PAGE. 18  



  

    APR-14-98 03:36PM FROM-FERGUSON, WALLAS , ADKINS, GRESHAM&SUM ~~ +7043345654 ® T-593 P.18/42 F-554 

FROM NC AG SPECIAL LITIGRYION "519-716-6763 24.13.1998 19952 P.18 

Hl tM ii wm 

J 

succasafully challenged the legislature's creation of former 

pistrict 12." Shaw v, Bunt, No. 92-202-CIV-5-BR, at 8 (E.D.N.C. 

Sept. 12, b997) In the instant cass, we ere faced with a ripe 

controversy as to the newly-configured Twalfth Congressional 

District, 'ohie panel must thus decide whather, as a matter of 

law, Dlotret 12 violates ths egual protection rights of the 

plaintiffs who live within the district and challenge its 

constitutibnality. 

In holding that District 12 under the 1952 plan was an 

unaonstitutional racial gerrymander, the Suprems Court in Shaw II 

noted, "(n}o one looking at Distriet 12 could reasonably suggest 

that the district contains a ‘geographically eempaat’ population 

cf any racé." S517 U.G., at —, 116 §. Ct., at 1306. The Shaw ll 

Court thus' struck the old District 12 as unconstitutional 8 & 

matter of law. In redrawing North caralina's congressional 

distriots in 1997 the Gensral Assembly was, of course, aware that 

pistriet 12 under the 1992 plan had been declared 

unconstitutional; curing the constitutional deficiencies was one 

of the 1agLalazizely declarad goals for the redistricting 

process. Cooper Aff. 7¥5, 8, 10, 14. 

Defendants now arque that the changes in pistrict 12 batween 

the 1992 afd 1997 plans are dramatic snough to cure it of ite   onstitutignal defects. They point to the fact that the new 

istrict 1% has lost nearly one~thizd (31.6 percent) of the 

opulation from the 1992 district and nearly three-fifths (58.4 

ercent) ot the land. These numbers do net advance the 

18 

APR 14 ’'S98 15:83 +7043345654 PAGE. 1S 

 



   

  
Pefandants} argument or end the Court's inquiry. As Defendants 

thamselves' note, tha Court's role is limited to detarmining 

“whether fon proffered remedial plan is lagally unacceptable 

because it’ vielates anew constitutional or statutory voting 

rights-that is, whather it fails to meet the same standards 

applicable, to an original challenges of a legislative plan in 

, 860 F,2d 110, 115 (4 cir. 

  

pleca.” 

1988) (citing Upham vy. Saamon., 4%6 U.8. 37, 42, 102 Ss. Ct. 1518, 

1521, 71 LijBd.2d 725 (1982)). A comparison of the 1532 Distzict 

12 and theipresant District is of 1imited valuas hera. Tha lessue 

in this cage is whather District 12 in the present plan violates 

the equal protestion rights of the voters residing within it.’ 

In , tha Supreme Court described old plstrict 12 as 

vanuesativianaped. It is approximately 160 miles long and. for 

much of its length, no wider than the [Interstate]-85 corridor. 

tt winds ig snake-like fashion through tobacco ceuntry, ginancial 

centers, add manufacturing aroas until it gobbles in enough 

enclaves of bleck neighborhoods.” $09 U.5., at §35-636, 113 8. 

Ct., at 2820-2821 (internal quotations omitted). Viewad without 

cafarsnce to District 12 under the 1892 plan, tha new District 12 

is also "unusually shaped." While 1lts length has been shortenad 

to approximately 93 miles, it still winds its way from Charlotte 

to Gresnsbro along the Interstate-85 corridor, making detours to 

pick up heqvily African-American parts of cities such as 

sratesvilly, salisbury, and Winston-Salem. It also connects 

pommunitied not joined in a congrssaional district, other than in 

| 19   
APR 14 S98 15:54 +7043345654 PRGE. 20 

APR-14-98 03:36PM Cl El +7043345654 7-503 P.20/42 F-554 

FROM NC RG SPECIAL LITIGATION 919-716-6763 84.14.1998 14:32 P-39 

a — 
—— AE 

 



  

   APR-14-98 03:36PM FROM-FERGUSON SYR) VALLAS ADKINS, GRESHAYESUM +7043345654 - 7-593 P.21/42 F-554 

FROM NC AG SPECIAL LITIGRTION 919-716-6763 89.19.1998 14:42 P.28 

DR 
= iia lL A 

  
the atin 1992 plan, since the whole of Westszrn North 

Carolina ol: one district, nearly two hundred yaars ago. FPl.'s 

Brief Opp To Mot. 6.J., at 12. 

We ed above, wheres cities and counties are split between 

Distriet 1 and neighboring districts, the splits are exclusively 

along zacipl lines, and the parts of the divided citice and 

counties hpving a higher proportion of African-Amaricans are 

always included in Distriot 12. pafendants argue that the 

Twelfth hap been designed with politics and partieanship, not 

rage, in mind. They degoribe the District om a vpamooratlo 

{sland in p Republican sea," and present expert evidence that 

political jLosstatensio wag the predominant factor determining 

the toad of District 12. Affidavit of David W. ("Paterson 

AfL."), wp As the uncontroverted material facts demonscrate, 

¢ lagislators excluded many heavily-Democratic 
however, 

border the District. Tha common thread woven 
precincts from pistriet 12, sven though thoss precincts 

immediatel 

gs the districting process is that the border of District 

12 enero} to include nearly all of the precincts with African- 

American pépulation proportions of over forty percent which lie 

netwaen Charlotta and Greensboro, inclusive. g 

Am noted above, objective measures of the compactness of 

District 13 under the 1997 plan reveal that it ls still the most 

Be scattered of North Carolina's congressional 

istricts. | When compared to other previously challenged and 

reconstituted congressional districts in North Carelina, Plorida, 

20   
+7043345654 PAGE. 21 

 



   APR-14-98 03:37PM FROM-FERGUSON  STERPHALLAS, ADKINS, GRE SHAMS UM +7043345654 A T-583 P.22/42 F-554 

FROM NC RG SPECIAL LITIGRTION 919-716~6763 84,14.1998 14:43 

ETRE terol _L = 

  

t's dispersion and perimeter compactness indicators 

Geozgla, Illinois, and Texap, Dletrict 12 doss not fare well, 

The Dist: 

e
t
 

(0.109 and 0.041, respectively) are lewer than thass values for 

North daeabtrate District 1 (0.317 and 0.107 under ths 19937 

plan). yn the District suffers in comparimen to 

Florida's 

(0.541 and 0.411) and Distriot 11 {0.444 and 0.259), Illinels’ 

istziet 3 [0.136 and 0.05), Georgia's District 2 

District &) (0.153 and 0.026), and Texas District 18 (0,335 and 

0.180). 

Rule B6(c) of the Fadaral Rules of Civil Procedures provides 

that summaty judgment shall be granted if thers is no genuine 

issue as td any material fact and the moving party is entitled to 

judgment ap a matter of law. The moving party muat demonatrate 

the lack of a genuine issus of fact for szial, and {ig that burden 

is met, the party oppoeing the motion must show evidence of a 

genuine fagtual dispute. Calotex Corp, v. Catreit, 477 U.s, 317, 

324, 106 B Ct. 2548, 2553, 91 L.®d.2d 265 (1986). 

sober the uncontravartsd material facts bafore it, the 

court concludes that tha General Assembly, in redistricting, used 

exitaria with respect to Distriat 12 that are faclally race 

driven. District 12 was drawn to collect pracincts with high 

racial idestifieation rather than political identification. 

Further, wn uncontroverted material facts demanstrats that 

precincts with higher partisan representation (that ls, more 

heavily Democratic prscincta) wers bypassed in thes drawing of 

al   | 
APR 14 ’S8 15:54 +7043345654 PAGE. 22 

0.151), Diptriat 29 (0.38¢ and 0.178), and District 30 (0.383 and 

 



  

   APR-14-88 03:37PM FRM=EEREU0N, STR un Aiins, comshpasuy +7043345654 * T-593 P.23/42 F-554 

147 P.22 
FROM NC AG SPECIAL LITIGATION 919-716-6763 @4.14.1998 

APE REN ~SSRA S SR i aa 3 

pistriet 12 and included in the surrounding congressional 

digtricts. The legislature disregarded traditicnal districting 

criteria such as contiguity, geographical integrity, community of 

interest, and compactness in drawing Distriet 12 in North 

Carolina's 1397 plan. Instead, the General Assambly utilized 

rave as the predominant factor in drawing the District, thus 

violating the rights to egual protection guaranteed in the 

constitution to tha citizens of Distrist 12.’ 

To remedy thess constitutional deficlencles, the North 

carolina legislature must redraw the 1537 plan in such a way that 

it avoids the deprivation of the voters' equal protecticn tights 

not to ba classified on the basis of race. This mandate cf ths 

Court leaves the General Assembly fzee, within its authority, to 

use other, proper factors in redrawing the 1937 plan. Among 

these factors, the legislature may consider traditional 

districting aritaria, including incumbency considasraticns, to the 

extent consistent with euring the comstitutlional defeats. faa 

shaw II, 517 U.B,, at —, 116 B. Ct., at 1501 (describing “race- 

neutral, traditional districting criteria"). 

II. Zizxst congregsianal District 

Based on the recozd bafore us, the Plaintiff has failed to 

patablish that thers are no contested material issues of fuct 

that would entitle Plaintiff to judgment as a matter of law as to 

  

' Che Supreme Court has indicated that, when drawing 
pangzassionat districts, race may not ha uged as a proxy fer 

bolitical characteriatica, Yardor. Bua. 517 U.S. 952, —, 116 

5. Ct. 1941, 1956, 138 L.Ed.2d 248 ( ) a 

22   
 



  

    APR-14-98 03:37PM FROM-FERGUSON, STYSENWALLAS ADKINS, GRESHAM&SUM  +7043345654 - 7-593 P.24/42 F-554 

FROM NC RG SPECIAL LITIGATION "319-716~6763 84.14.1998 17¥%3 P.23 

BEE a aaa SS SER 

District 1. The Court thus denies Plaintiffs’ Metion for Summary 

Judgment as to that District. Conversely, neither has the 

Dafendant established the absence of any contested material iesue 

of fact with respect te the use of race ss the pradominant factor 

in the digtrieting of Distriat 1 such as would entitle Defendant 

to judgment as a matter of law, 

CONCLUSION 

Based on the Ozder of this Court entexad on April 3, 1998, 

and the foregoing analysis, Defendants will be allowed the 

opportunity to correct the comstitutional defacts in the 1997 

Congressional Redistricting Plan, in default of which the Court 

would undertake the task. 

This Memorandum Opinion, like the Order to which it refers, 

ig enterad by a majority of the three-judge panel. Circuit Judge 

Sam J. Ervin, Il, diseants. 

T™his, the ITAL of April, 1998. 

TERRENCE W. BOYLE 
Chief United States District Judge 
RICHARD IL. VOORHEES 
United 8tatss District, Judge 

By1 bed 
ERRENCE W. BOYLE 

CRIEF UNITED BTATES DISTR 

  

   

  

  

JUDGE 

FX   
 



APR-14-38 03:38PM FROM-FERGUSON, STURIYHALLAS ADKINS GRE SHAMESUM +7043345654 7-583 P.25/42 F-554 

FROM NC AG SPECIAL LITIGATION 919-716-6783 G4.14.1998 NX P.24 

— = Atte 

IN THE UNITED STATES DISTRICT COURT 

POR THE EASTERN DISTRICT QF NORTR CAROLINA 
EASTZRN DIVIBTION 

No. 4:96-CV=104-30(3) 

MARTIN CROMARTIE, THOMAS 
CHANDLER MUSE, QLINNES DODGE 
WEEKS, R.0. EVERETT, J.K. 
ROBLICH, JAMES RONALD 
LINVIILE, and SUSAN HARDAWAY, 

Plaintiffs, 

| 
Eo | 

JAMES 3B. HUNT, JR,, Governor 

of the State of North carolina; 

at al. 

Defendants. 

  

PRVIN, Circuit Judgs, dissenting! 

in Shaw. vy, Reng, ths Suprems Court gecognized a new cause of 

action in voting rights lav -- that state legislatures could not 

msubordinsts traditional daisteigsing principles to racial 

conniderations in drawing legislative districts without triggering 

strice scrutiny under the Equal Protection Clause of the Fourteenth 

asendment. 309 U.S. 830 (1953) ("ahay 1°). Bacauss ths dissrioting 

plan barore us 1% fundamentally different from the plans struck 

dawn By tha Court in Sak. lI and its progeny, S88 ¥illar vv. Johnsan, 

515 U.B. 900 (1995); Shaws. Hung, 517 U.B. 889, 435 L. Td. 24 207 

(1966) (“Fha¥_Il")/ Buak v..Uaxs, 617 U.S. 953, 336 L. Bd, 2d 248 

(1956), I do not believe that the Plaintifte have proven ANY   
APR 14 ’98 15:55   +7043345654 PAGE. 25



  

   

  

APR-14-88 03:38PM FROM-FERGUSON, STURRJHALLAS, ADKINS, GRE SHAMS UM +7043345654 7-593 P.26/42 F-554 

FROM NC RG SPECIAL LITIGATION 919-716-6763 84.14.1988 .® P.2S 

rere OE ERE — Art -. 

FEES ——— wee 

violation of their right te the squal protection of tha lave. 

North Carolina's twelfth congressional district is not a 

majority-minority dlstrict, {vt wam not creatad as 6 result of 

grreng-armnirg by the U.%. Department af Justices, and, cantrary to 

the majority's assertions, it io not 80 bizsrrs or unusual (nn shape 

that it cannot bs explained by factors othar than race. The 

plpintitfs' evidence is not Bo convincing as to undermina the 

seate’s contention that tha 1597 Plan was motivated by a desires ©o 

veredy the constitutional violations fron the 1982 Plan, to 

preserve the aven split between Republicans and Democrats in the 

North Caroling congressional Aslagation, and to protect incumbents 

py drawing the districts so that each incunbant rasides in 8 

saparate aistriot: our acdsptance of tha stata's proffered 

justigications, abgent more rigorous proof by tha Plalineirgs, is 

aspaalally appropriate in this context, considering tha defecance 

that we are bound to accord stats legislative deoleione in 

guestions of radistricting. Finally, I ind it inconsistent to 

decide, as the majority has dons today, that the Gansral Assenbly, 

while engaging in a statg-vide redistricting process, Ua 

ippernisaibly {ptluenced hy pradeninantly racial considerations in 

the drawing of ona district (the twelfth) whila evidencing no muah 

unconssitutional predilection in the other district under challenge 

(the first), or for that matter, any of North Caralina's pthsr TON 

congrasaianal districts. Tor thess reasens, I nust raspeotfully 

gigsant.,   
+7043345654 PRGE . 26 

 



  

    APR-14-88 03:38PM FROM-FERGUSON, STUIIHALLAS, ADKINS, GRESHAIRSUM +7043345654 - 7-593 P.27/42 F-554 

FROM NC RG SPECIAL LITIGATION 919-715-6783 83.14.199¢ 14°44 P.286 

  

I. 

zn order to prevail on a race-predeminance claim, the 

pinineiffy must show ‘that race Wass the pradominant " factor 

pativating thes lagislaturs's dacision to place a significant numbdar 

of vorars within or without a particular district.” Hilda, 816 

U.E. at P16, The principles that Tace oannot be the predominant 

factor in a legislature's vedistriocting calculus {i¢ simpla. 

Applying that principle, on the othay hand, is Quits ocorpled, 

pecduss numexcus factora influence & lagislatuze's districting 

choices and no one factor may readily bs ldentified as predoninant. 

tn undertaking this analysis, {Tt is crucial tc nots that in 

the Datter of vedistrigting, courts ove substantial defaraence to 

the legislatura, which {s fulfilling "ths wost vital of looal 

gunstions” and is entrustsd with the “dlscrevion to sxercise the 

political Judgment necessary te balance compating intaressts.’ 

¥illsz, 515 U.6. at 515, Wa presume the legislature acted ir good 

faith absent a sufficiant showing to ths contrary, Jd. A ptate's 

radistricting responsibility “should be accorded primacy to the 

extent possible when a federal court axsroisas ranedial power.’ 

Lavyar v. Dapaztment 8C Juarics, 138 L. Ed. 24 666, 630 (1987). 

While the nmajerity and I appear to bs in sgreemant on thssa 

general principles, tha sajority doed not disauss the extent of the 

plaintiffs’ burden in proving a cleim of racial gerrymandering. 

Concurring $n Millsr y, Johnmen, Justices O'Conner ezphasised that 

the plaintiff's burden in cases of this kind must ke especially 

vigorous)   
 



APR-14-98 03:38PM rrow-Fercuson, STE LAS ok Ns, crests +7043345654 a 7-593 P.28/42 F-554 

FROM NC RG SPECIAL LITIGATION 919-216-6763 84.14.1998 14:44 P.27 

J SAAT esd Jf  _anaenal GE 

SUS—— grep. LS 
in. ay    

t understand the shrsshold standard the Court adopts . « 

'. to be » derending ens. To invere @trist acyutiny,; a 

plaintiff must show that the Stats has relied on Tage in 
of custcmayy and traditional 

districting practices. . . . [Alpplication of tha Court's 

standard helps achiavs Shaw's basic objactive of making 

of gerrymandering subject to asaningsu 

udicial ¥aview. 

Killer, 515 V.8. st 928-35 (O'Conner; J., gonourring) (emphasis 

added). This principls was rapantly daveloped by a thres~judge 

panel that upheld onia's 1992 redistricting plan tor ita atats 

legislatures: 

As wo apply the threshold anslysia devslaped by the 

guprens Court in Shaw cases, ve arse mindful of the 

dangers that 8 lov threshold (swsily &nveking gtriet 

scrutiny) pases far statas. Ns tharafora follow Justice 

o'Connor's 1sad in applying a that 

allows Etates sone degrees of latitudes to cansider race in 

drawing districts. 

guiltar vw. Vainawidh, g81 PF. Supp. 1003, 1044 (N.D. Ohio 1997}, 

aggis, 66 u.s.L.W, 1633 (U.5. Mar. 30, 1938) (Na. 937-388). 

the Court has rscognized that legislatures often have ‘nixed 

motives" =- they may intend to drav majority=-minerity dintricts As 

wall as to protect incumbanta or to accomnoadats other traditional 

interests. BRugh.v..vara, 135 L. Bd. 2d at 267, In such a cuss, 

cdurts nust review extrszely carefully tha svidance presented in 

order to determine whathar an impernisaible raclsl mative 

predominated. A determination that a state has relied on race in 

gubstantial disregard of customary and traditional districting 

practices will trigger strict geyutiny, though strict sarutiny does 

not apply Rarely Dacause radistricring is performed with 

conscicusness of race. 1d. Plaintiffs may show that race   
 



  

    
APR-14-88 03:38PM rrow-rercusoN, Te (LAS ons, resumes +7043345654 . T-593 P.29/42 F-554 

FROM NC RG SPECIAL LITIGATION 919-716-6763 84.14.1998 14: P.28 

RT — 
: ., 

predcuinated either through direct svidancs cf legislative intent 

or through circumstantial mvidence, such as the extyrensly gontorted 

naturs of & district's ghaps and its racial dawographics. JHRAW IZ, 

115 L. Ed. 24 at 118-219; MNillsx, 815 U.3. at jit. 

The Plaintiffs hava presentad no airect svidence that ths 

Genaral Assembly's intent was to draw digtriot 1inag based OR Tate. 

tn contrast to the redistricting plans at iseua in North Carolina 

{n Shaw IX, in Texas in Bush vy. Yara, snd in Georgia in Mlllax wv. 

Jahnagn, the 1997 Plan was hot dravn with an orticulated desiy¥s to 

maximize minarity veting participation. In order To succesd on 

summary judgment, the Plaintifes must tharafcrs presant 

oirounstantial evidence that the State not only shoved substantial 

disregard for sraditicnal atstrioting principles, but that the 

pradominant faator in the legislaturae's decision to aot as ic dud 

WAS Tago. 

II, 

the State has asserted that psverzl criteria wars mora 

{mportant than race in the Gensral Assembly's creation of ths 1957 

Redistricting Plan, Ths Gensral Assambly drav tha 1997 Plan xo 

rsmedy ths constitutional violations in ths 1353 Flan, te preserve 

North Carolina's partisan balance of eix Republicans and six 

Cemacrats, and to svold placing two {noumbents in the sane 

district. Sas Dagendanta' Br. ig Buggers of Aunnary.Zudgosot at 4- 

7 (*pagendants’! BZ."). In qrder to grant Plaintifzs the relief they 

gesX, thay must prove that the Etats has sunstentislly disragarded 

5   
—— Logazzases PAGE 29 
 



  

   APR-14-88 03:39PM FROM-FERGUSON, STE) WALLAS ADKINS, GRE SHAMS UH +7043345654 » 7-503 P.30/42 F-554 

FROM NC AG SPECIAL LITIGATION 919-716-6763 84.14.1998 14: P.29 

-.. 

Ril M 

  

theses proffored redistricting coritsria, as well as other 

traditional districting criteria, in favor of race. I believe that 

che Plaintiffs have failad to meat this buzden. 

first and goremost, the districts at issue here 8re nee 

majority-ninorivy Adlstricts.’ I find it of utmost importance that 

only §3.36% of the voting~age papulation in District 12 ig Atriocan=- 

Amarican. This fact {mnedlately distinguishes tenis case from the 

line ©f Suprema Court CRIES that have atruck down racial 

gerrymandering in North Caroling, Plerids, Georgis, louisiana, and 

Texas ~- cases that dafins the equal protection inquiry in this 

aveh. The Court itself recognized this distinction when it 

recently upheld = Flotida state sanats district that was not a 

majority-minority district. faa Lawyer. 138 L. 2d. 3d at 680 

(upholding state sendts district with 36.3% black vosing-ags 

population)) aaa.alsg cuilrar vw. Veinavigh, 66 U.8.L.W, 3630 (U8. 

Mar. 10, 19988) (No. 57-988) (aggixming decision of three-judge 

panel that rejected 0 racial gerrymandering challenge to ohio 

  

| ne Supreme Court has not srticulated whsther diserioct 45 

depignated majority-minoriry by rafarance vo voting-age population, 

hy refsrance to overall population, or by raferancs ta wvotar 

ragistratien. veting-ags population would seer to be the 

appropriates benchmark. All pecpls of voting ags have the gapasity 

te influence slections, whereds those under voting sgs obviously 

cannot. Counting only vegistered votsrs would otentinlly 

undercount those with the potsrsial to influence slsotions. 

tn District 12, 43.36% of the votingeags population is black, 

wvhils 46.67% of ths total population is black. In Dimtriae 1, 

45.57% of tha voting=age populstion is black, while 50.27% Qf the 

rotal population is black. Undsr none of tha passible ariteria, 

then, can pistrict 13 be considered a ed einority district. 

District 1 san only be considered a majority-m nority district vith 

rafersnce to total population. Bas ! at §. 

6   

AJ
 4 ’'S8 15:56 +7043345654 PAGE. 30 

 



  

    APR-14-88 03:33PM FROU-FERGUSON, STIEERIALLAS ADKINS, GRESHAMSUM  +7043345654 ® 1-583 P.31/42 F-554 

FROM NC RG SPECIAL LITIGATION 819-216-6763 84.14.1998 14: P.38 

a 
tle aE 

Rea 

legislative alstricta that vers not majority-minority). 

tn its racial composition, pistrict 12 is no different from 

every ona of Kerth carolina's other sleven congreasicnal districts: 

the majority of the veting-age population in the distxiot is white. 

While this may not be aispoaitive of ths question whether T&08 vas 

tha predoninant factor in the legislature's rediotricting plan, the 

gact that all of North Carolina's congressional districts are 

majority-white at the very least makes the Plaintiffs’ burden, 

whieh is slrsady quite high, even more ONWTOUE. Had the 

legipiaturs been predominantly {neluanced by a desivs tO draw 

Digtriot 13 According to Tacs, I suspsat it would have created B 

digtriot whera Rare Than 43% of tho voting-age population was 

black, In part becaucs pistriot 13 im not 8 majericy-minoTity 

district, I find nha reaaon to grodit the Plaintiffs’ gentantion 

that race was the predominant factor in the legislature's 

decisions. this is ospecially Crue considering thet the 

lagislature has proffered several compsliing, nen-zacial factors 

for its decimslon. 
: 

gscond, this case is zapdily distinguishable from previous 

racial gerrymandering cases because the plan at issue is not the 

result of North Carolina's acquiescence to pressures from the V.H. 

Justice Pspartment, acting under {ts Voting Rights aot preclearancs 

authority. In previous cases in which tre Caurt stuck down 

challenged districts, tha logisluatures drew the challshgod plans 

after thelr initial planw nad bssn denied preclaaranca by the 

Department of Justice whder its *black-maximisation" policy. fas 

7   
+7843345654 PAGE. 31 

 



   
FROM NC RG SPECIAL LITIGATION 919-716-6785 24.14.1998 19:46 

  

APR-14-88 03:39PM FROM-FERGUSON, STREIALLAS, ADKINS , GRESHAHAS UM +7043345654 7-593 P.32/42 F-554 

P.3 

  

ea, mm 

Millar, 51% U.8, at 331, Tor example, in Nillar, the court gaund 

that the craation of tha unconstitutional district was in direct 

rasponee to having had Two praviaus plans denied preclearance by 

the Justice Department. gga id. ("There is 1ittis doubt that ths 

state's trum intersst in designing the Elevanth District vas 

areating a third asjority-minericy district to satisfy the Justice 

Dapartaent's preclearance denands.’). th Abaw XI, ths Court 

racognized. that North caroline dacided so drav tus majority- 

minority districts in response to the Juatice Departmant'a danial 

of presclaarance ts a previous plan. flaw. IT, 138 L. Bd. 2d at 29 

(noting that tha avarriding purposs [oF the redistricting plan] 

was to coxply with the dictatas of the Attorney General's Dau. 18, 

1991 letter [denying preclsarance to previous plan] and te cradte 

twa cengressional districts with affective black voting 

majorities’) (quotation onlitted). 

Tn contrast, Whils the Department of Justice granted 

preclearance ta the plan ar imaus in this case, tha Department did 

not engage Ln the xing of nrewbeating that the Suprems Court has 

found offensive in previous racial gerrymandering cases, In the 

casas I have eited, the Court relied on this direct evidencs, that 

the legislatures was primarily motivated by race, to invoks strict 

dorutiny of the challenged diatricts. Unlika those casas, 

Plaintiffs have prafierad neither diract nar circumstantial 

gvidangs that the Oaneril Assembly was pressured by ths Department 

of Justica to maximizes minority participaticn when it radrsv ths 

congressional distriats {1 1587. In the abeends of such evidence, 

a gs: 4+ 2043245654 PAGE. 32 
 



  

   APR-14-88 03:40PM FROM-FERGUSON, STEEEWALLAS ADKINS, GRESHAM&SUM  +7043345654 7-593 P.33/42 F-554 

FROM NC RG SPECIAL LITIGATION 919-715-8763 04.14.1998 14:46 P.32 

Rm 

  

7 hava littls reason to bdalieva tust ths gtate is lass than eandid 

{n its averments tO this court that race was not the predominant 

factor used by the legislatura wash crafeing the 1987 redistricting 

plan. 

In reaching ite decision, the majority has relied heavily on 

svidenas that District 12 could have been drawn t¢ includes nare 

pracingts wvhare a 3ajority of ragietezad voters ars Democrats, but 

that 4t was hot so drawn, presumably for reddans that can be 

predominantly explained on no avher Basia but zacs. 7T zannot agrea 

vith the majority's interpretation of ths avidencas. The 

Plaintiffs, and the majority opinion, provide anecdotal evidence 

that certain precincts that border District 12, but wers net 

included in that district, have a high nunbesr of voters thet ars 

registered Democrats. Aas AURKA at 8<9, This evidanve does not 

take into account, however, that voters often do not votes in 

accordance with thelr registaerad paxty afgziliation. The Btate has 

argued, and I sse ho reason to discradit their uncontrovertad 

asaertions, that the district lines wers drawn based on votes for 

Denotratio candidatas in aatual glagsinng, vathar than the nunber 

of ragistersd veters. fas Affidavic of Esnator Roy A. Cooper, ; 9p 

("Cooper AL£L.%) $0 ("electien rssults wers ths principal factor 

which determined thas location and eonfiguration af all distriste’). 

The majority's avidance alec ignoras the sinple fact that the 

redistricting plan must camply vith the equal prataction principla 

of "ona payson, One vote.’ Every voter nust go somevhers, yet All 

districts DUBE ramain ralatively agual in population. Plaintiifs’ 

C]   
 



   
   

APR-14-98 03:40PM FROM-FERGUSON, STEPHALLAS ADKINS, GRESHAHGSUM +7043345654 T-593 P.34/42 F-554 

FROM NC AG SPECIAL LITIGATION 919-716-6763 84.14.1998 14:47 P 

    

anacdatal evidence suggests that Democratic precincta could have 

pean included in Tlptziat 22 in certain arsas, had the district 

only bsan enlarged to includs those places. By necessity, however, 

chs discrict vould nesd to hava bean rsduasd in sizes in other 

places in order to pcconnodate the LAcreass in the overall 

population in the district. Had tha State dravh the lines in the 

sanner that Plaintifis' evidence tmplice it should have, {t appesrs 

chat the State aimply vould have traded a Demdstratio praainct in 

ons part cf the district for a Democratic presinat in another pare. 

perhaps Sush line-drawving gould have satisgisd the Plaintiffs’ 

desires that District 32 contain mare than a 378 wnite wajority, but 

YT do not agrees With ths saiority that the constitution requires it. 

In contrast To Plaintiffs! anecdotal evidancs (which 8 

presantad in an agridavit by Plaintifls’ counsel), the Btate haa 

presented far nors convineing evidences that rads wad not the 

predominant gacteor in the General Asserbly's decision to arav 

oiptrict 12 as it has been drawn. gap Rfgidsvit of Dr. pavid W. 

Petersen ("Petarsaon Azf."). In his statistical analysis, Professor 

Fetsrson traveled the entirs circumfarsncs of pistrict 12, looking 

at both THe party asfiliation and vacisl compasition of the 

precincts on sithar side of the algtrict line. Based on an 

analysis of the entire district, Professor Peterson conaludea that 

‘the path taken ky ths koundery of the Tvelfeh District oan be 

=trikutad te political considerations with at leaat ap mah 

statistical certainty as it can ke attributed te rasial 

conaidezations.” Petszeon Arf. 13. In other words, examining ths 

10   
 



  

    APR-14-88 03:40PM FROM-FERGUSON, SY HALLAS ADKINS , GRE SHAMASUM +7043345654 

FROM NC RG SPECIAL LITIGATION 919-716-6763 84.14.1998 14:47 

dL sia po Ul -—t 

7-503 P.35/42 F-554 

  

   

entire circumferences of District 13, rather than relyihg on 

Plaintigfe’ “pick and chocss’ examples, thers ip no statistical 

evidence to support tne sonclumien that Tace Was the Ganaral 

Assenbly's primary motive in drawing District 12. 

yurthermors, tha majority sass fit to ignore svidesnce 

dononatrating thar not only did the legislature utilics traditional 

vacs=neutral distriating principles 4n drawing the Twelfth 

pistrict's lines, but that theus principles pradominated over any 

racial considerations. AcooTding to the guprsns Court, thess 

vracu=nsutral® prinaiples include, Put are not limited toi 

conpactness, eantiguity, respect for political subdivisions or 

sopnunitiss of intarest, and incumbency protection. Ass Bush Vv, 

Yaga, 136 T. Xd. 24 ac 260; Millar, 318 U.S. at 916. The majority 

Jould Bspparently add Wgsographieoal {ntegrity" to this llst, 

although I am not clsar what exastly they mean ky ehat.’ Bas AURA 

at 22. Regardless of what is {noluded on ths list, however, the 

fact remains that the leglnlature rallied more heavily on these 

nsutral principles than on Y¥ace When {t choses the boundazies of 

pimcrict 3d. | 

The compactness of District 12 is, sdnmittedly, substantially 

le than What has been deermad to be nidaal” ana 4s tha least 

compact of all of North Carolina's twelve congresgional districts. 

  

ithe term "geographical integrity” doss not appesr in any of 

the SupEens court's voting rights cases, and the only lowsr oowre 

0386 That SNprasL used the term, DaMitt v. Wilson, 836 F. Bupp. 

1400, 1413 (B.D: Cal. 1994), did 82 only bacauss it vas a standard 

ast out in the statats constitution, 

1   
 



APR-14- : ~ 4-98 03:40PM FROM FERGUSON, STE) HALLAS ADKINS. GRESHAMASUM +7043345654 T-593 P.36/42 F-554 

FROM NC AG SPECIAL LITIGATION 919-716-6763 84.19.1998 14:47 
P.35 

ES 
TE 

Sas aupss at ul (oiting Pildes & Nieml ncoppactnesa factors’). 

some district, however, must {inevitably bs the least ccupuct; that 

¢act alons thersfors 48 net dispositive. And heCRUES pistrict 13 

veglscts the paths of majoz {nterstata highway corridars vnich make 

eravel within ths district extremely easy, it has 8 type of 

nfunctional cozpactnaas” that is not necessarily reflected by the 

Pildas & Nieai factors. In addition, District 12 as it currently 

stands ie contiguous. Contrary to ths majerisy's allusions to 

wparpov corridors,” Ams ENDIa 8% 7, the width of the district is 

roughly equbl throughout its length, mea Af2idavit we Br. Garald R. 

wabstar tbl. 1. 

pistrict 12 Also Was designed to join a clearly defined 

ngommynity of intarest! that nas sprung up ameng the innerecicias 

and along tha mers urban ares abutting the interatats highways 

that ara ths backbone of the digtrict, I do not sed how anyone san 

argus that the citizans of, for exaspls, the inner-oity of 

charletts do hot have more {n common with citisans of the inner 

citiss eof Statesville and Wwinston-8alam than with their fellow 

¥ecklenburg county altizens who happen to Tresids in suburban OT 

rural arass. 

the tricky business af drawing borders to protect incumbents 

alge required the legislature to drav District 12 in the way it 

did, District 12 had to he drawn in a zanner that aveidad placing 

poth Congressman Burr's and Cobls's residences inside the district, 

sxcludsd Cabarrus County, whera Congraeasan Hefner resides, and 

still providsd enzugh Demacratia votas to protect incumbent 

12   
APR 14 ’S8 15:38   +7843345654 PAGE. 36



  

    APR-14- : PR-14-98 03:41PW FROM-FERGUSON, SY ALLAS. ADKINS, GRESHAWASUM +7043345654 » 1-593 P.37/42 F-554 

FROM NC RG SPECIAL LITIGATION 919-715-6763 84.14.1998 14:47 p S34, : .36 

i 

  

congressman Watt's gaat, Aca Coopar Aff. 110. 

wnat I find to ba the pradocainating factors in draving the 

1997 plan, however, Wera tha lsgiglature's damire to maintain the 

6-6 partisan balance {nh the Houses and TO protect incumdbsnts. SAA 

cooper AZZ, $0 (stating maintaining partisan balance was che 

principal factor driving redistricting). Tnsse Are legitimate 

interasts which have basen upheld by tha Buprems Ceurt in pravicus 

voting rights censa, ARS..S.44: Bush v. Vsra, 13% UL. Ed. 2d at 360~- 

61, and vere proper Concerns for the legislaturs hers, As I noted 

pagtors, the majority's decision ta lack only at the percentage of 

registered Democrats in analyzing the disxriot's borders ignores 

the foot that registered Demccrdts Bre not aompellaed to vets for 

nerooratie candidatss snd eften do not. In dvawing piscrict 12, 

thesrafore, the legislaturs aid not consider magaly the nunber of 

rogiatared Damoorits., rathor it leoked also to tha history of 

rgocent voting patterns in an attespt to design thas districts to 

sersuza that thes partisan balance would remain stables. fue Cooper 

Aff. 18; Pataraon ALL. 921. 

Finally, I find it highly unlikely, as the majority has found 

today, that the General Assembly acted with pradoninantly raalal 

metivas in its drawing of pigtriet 12, but did not act With the 

sens motive in ite drawing of District 1. The General Aagenmbly 

considered the 1397 Redistrioting Plan as single, statewide 

proposal, end it makes 1{ttle sanss to ms that the Ganeral Assambly 

would have besn snimatad by pradominantly cacial notivag with 

respect to the TWelsith pistrict and not ths First. This 

13   
 



  

   

  

APR-14-88 03:41PM FROM-FERGUSON, SI) HALLAS ADKINS  GRESHAHASUM +7043345654 7-593 P.38/42 F-554 

FROM NC RG SPECIAL LITIGATION 919-716-6763 84.14.1998 14:48 P.37 

—_—      

inconalstency ia even mora apparent when one considers that the 

legislaturas placed Bars African=Americans in District i (46.84% of 

the voting-age population) than in District 13. Bince we all agles 

that the Plaintiffs have galled to prove sny equal proesestion 

viclation with respect tO the legislaturs's dacision in araving 

Digtriet 1, T find it unlikely that Plaintiffs! proof would 

domonstrate otherwise vith regard to other aspscts of the mane 

redistricting plan. 

III. 

Not only do I dissgres vith the majority in their halding the 

rvelgth Distrist unconstitutional, 1 beliave That ~=- even if the 

twelfth District ls unconstitutional == thay are in error in 

anjaining ths ourrant election process, which iu already 

substantially underway. The rationale for sllawing elections to 

precasd after a court hos declared them to be constitutionally 

infirm has basen clearly articulated by the Suprems Court in 

geynolds v, Bima, 377 U.S. 333, B83 (1964); 

{0o]nce a Btate's jegialativa appertionmant schena has 

pgen found to be uncongtitutioral, it would bs the 

unusual cage in which & eourt vould be justified in not 

$0eing appropriates actiox to insurs that na gurthar 

elections are conducted under the invalid plan. Haowaver, 

under aareain airsunstancad, such as where an impending 

slaction is imminent and a state's elsctien ge is 

alzesdy in progress, equitable considsraglions might 

justify a court In withholding the granting eof 

{znediatsly effactive rallef in =» - lagislativse 

apportionment Oale, @Ven though tha sxiating 

BEporLianant scheme vas found invalld. In swarding or 

vithholding immediate rellal, a court is sntitled to and 

should consider the proxinity of & forthooming elestlion 

and tha Rachanics and complexities of state alaction 

14   
+7043345654 PAGE. 38 

 



  

   APR-14-98 03:41PM FRoM-FERGUSON SUI) HALLAS ADK NS, GRESHAMES UM +7043345654 ES 7-593 P.38/42 F-554 

FROM NC AG SPECIAL LITIGATION 919-716-6763 84.14.1998 13:48 P.32 

Ee aud 
RR a 

  

1ava, and should act and raly upan ganaral equitable 

principles. With respact to ths timing of velisf, a 

Gourt can reasonably sadeavor tc avoid a disruption of 

the slootion process which might rasult from reguiring 

precipitate cohangas tnat could maka unrepsonable or 

embarrassing demands on a 8tate in adjusting to the 

requirements of the aourt's decred. 

Weighing the squities hare, it ig clear that this (sp one of the 

JunusualM cases contemplated by Raynalde v. Riza snd thersfors an 

injunction should not be issued at this point in the slestion 

oysle. 

on January 30, 1998, when the Plaintiges filed their motlen 

gor a praliminary injunction to these alastions, the daadline far 

candidates to fils far tha primary elesctitns was only four days 

aVAaYy. voters had already ecantributed over $53 nillien to the 

congressional candidates of their sholcs, and ths candidates 

chezselves had epent approximataly §1.3 million on thelr mempaigna. 

fig Bscond Affidavit of Gary O. Bartlett ("Bartlett sacond Aff.") 

q1¢ (giving gigures fer tha psriod frem July 3 To Descender 131, 

1997). Pallots have slresdy been preparsad, printed, and 

distributed. Absentes palloting far the primary glactisna bagan on 

March 16, 3998 and undoubtedly same voters have alrsady cast their 

votes. The priwary slestians thengalves are mahedulad for Ney 6, 

only a few short veeks avay. This court's injunation thezafore 

ureaks Raves en an elactaral process that is in full sving. 

An indunctian puta ths Novth Coxolina legislature on ths horns 

of a dilemma. Iz may sheoga to ©un the May 1998 selections as 

schadulsd for averything but the cargressionnl primaries, and then 

spend millions of dollars schaduling a saparate sleaction for the 

15   
 



   

  

APR-14-38 03:41PM FROM-FERGUSON, SY HALLAS, ADKINS , GRE SHAS UM +7043345654 

FROM NC RG SPECIAL LITIGATION 918-716~6783 24.14.1998 14:48 

— 
   

7-593  P.40/42 

   

congressional primaries’ -= an election for which fav people are 

Likely to make a special mein to the mleaticn booth, Or the Stats 

zay decide to spand millions of dellars to roscheduls thas sntire 

May slection and affect hundreds of races for offices throughaut 

ths §tate. Forcing the Btats te ghoase betwesn thesa two aqually 

unpalatable choices is unzeasonakbls. 

ta addition, the injunction will disrupt candidates’ 

campaigning and voter aontributicns to thass campaigns. Redraving 

tha Twelfth District's boundaries vill inevitahly change the 

poundariss of the surrounding diatriats, and the ripple effects of 

this redraving may wall affect RARY other districts in the Stats, 

as happansd when the 1997 Plan supplantad ths 1893 Plan. 

congressional candidates cannot be certain wham they will gaprasent 

or who their opponents will bs until the districts are redrawn. 

voters likewvige will bs unsure vhather the candidates of thelr 

choice will end up in their district. Not only will sontributions 

to candidates and campaigning by candidates bes slowed, if not 

halted, while tho redistricting takas place, but once the 

redistriating is completed, candidates and votars will have meant 

tina to becoma acquainted vith sach other hefore slactions Take 

place. &ag MaERg. Va. ADR CV=37=C=3078=} (N.D: Ala. N&Xron a4, 

1998) (rafusing to snjsin alesctions even though qualifying dete for 

primszry had not yet pagped bhecauss "(w]oRe energy ie already 

invested] some parmons have declared their candidacy to represent 

  

rhe cost of a single, statewide slection, primary or general, 

is said to be 94,300,000. 3&8 sartlett Becond Affe. 413. 

1€¢ 

F-554 

+7043345654 PAGE. 40    



ky mene — 
a a i 

  

APR-14-98 03:42PM  FROM-FERGUSON,S 

FROM NC RG SPECIAL LITIGATION 918-716-6763 

      

WP eLLas ADKINS, GRESHARSUM +7043345654 7-593 P.41/42 

©3.13.1998 14:49 

a certain district...Even {7 yvedistrictiny vars narrisd out today, 

1¢ would disturk ¢he axpectations of candidates and thelr 

supportars, end ie would disgupt ths ateta’s conduct of the 

primaries."); gmich
 vy. Baagley, 946 F. Supp. 1174, 3333 (bB.§.C. 

2956) (vefusing to {psu injunction six waekd pafors gareral 

election whan u[o]andidazas have already gpent significant tive and 

money canpaigring, and voters have begun to familiarize thonselves 

vith tha candidates" Facause delay would disrupt elections 

unnecessarily ard confuse voters). Aczaord vara wv. Richards, 861 F. 

Supp. 130¢, 135) (8.0. Tex. 1934), affirznad anh noR. funk Vv. Yara, 

138 L. Ed. 2d 343 (1986) (gludirg congresulional districts 

unconstitutional eleven wvesks befora geharal slections but allowing 

chen to progesd under yncanstitutisnal apportisnment plan). This 

will negatively affact che quality of tne repreasntation that 

citizens of North Caroline roasive in Congress, and aounscls 

against upasteting the current elsaticns. 

IV. 

in ita opinion, the majority conuludes that najicther the 

plaintiffs nor the State has astaklighed tha absence of a genuine 

issues of materisl fact that would satitle elthar party to judgment 

ng & Dotter of law. gag aupcd at did=23. { ncliecve that all 

material facts saoncerning the vivet District ars uncentroverted _— 

this panel received the same evidence concerning District I as it 

did for Diatriot 12. 1¢ summary Judgment ie appropriates far 

pistrict 12, I mes NO TeaEon why District 1°s constitutionality 

17 

F-554 

+7043345654 PAGE. 41 

 



    

  

> 

APR-14-98 03:42PM eRou-FeRausoN, SE ALLAS ADKINS, GResHAMas uM +7043345654 » 7-593 P.42/42 F-554 

FROM NC A6 SPECIAL LITIGRTION 919-718-5763 Z4.14.1998 14:39 
P31 

a a 

  

oannot ke decided on SURREY judgment as vall, The majority is 

sizply wrong to reguirs the tate to estaniisn the sbpancs of an 

lsaua of material fact. S48 ERLOLEX Corp. Y. CARERS, 477 U.B. 

317, 335 (31986) ("(W]e do not think ... that the burden 4m on the 

party moving for sunmary Judgmant to producs avidance showing the 

abgence of & genuina iaowue cf mazerisl famot...."). Because 

pelinvae that the plaincirgs have fallad to demonétrate thit-tha 

First congressional pistrict under the 1897 Congressional 

Restricting Plan is an uncenstitutional classification ‘Based on 

race, I would grant thse State's motion for SURRATY Judgment, 

Vv, 

I agreg with the majority thet Plaintiffs have ¢allpd to mmat 

chair burden ar summary Judgment As TO pigtrios i, although I would 

go further und grant the State's motion sor sumnary judgment 8s tO 

this district, I dlanaent gram tha majority's dealsian gzanting the 

plaintiffs’ =metion for gunnary Judgment OR pistrict 33, and 

enjoining alactions unger the 1997 Plan, for ths rsasans stated 

ahova, I would grant the State's motion for summary Jjuagmant, 

einding that Plainciifa have not proven & vialation of their right 

to equal protection af tha lave. 

18   
ams ENDemw 

aimm A = . ~ 
- A =la A