Appellees' Brief on the Merits

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QUESTIONS PRESENTED 

Should the constitutionally mandated principles of 
Shaw v. Reno be reaffirmed and fully enforced in the 
review of a redistricting plan required in order to 
remedy past violations of equal protection? 

In granting summary judgment did the district court 
properly decide that the bizarrely shaped, race-based 
District 12 failed to meet the requirements of Shaw v. 
Reno? 

 



  

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TABLE OF CONTENTS 

Questions Presented . vei thc devnisinsndin ss sve gees 1 

Table OF ANNOFIHES .'.. . ois vers inna nse wid mga ar v 

Statementofthe Case... 0 cc vo oh vu imiis 29 1 

A Brief History of North Carolina’s Racial 

Gerrymandering «he  deidecua cons cnn rnin same ss 1 

Summary of ArgUMENt . i. oc. cin vv des Sd pra Sai 8 

ARGUMENT - 

L The Constitutionally Mandated Principles 
of Shaw v. Reno Should Be Reaffirmed 

and Given Full Bffect'. . .5.... i. i000, de 11 

Shaw v. Reno Properly Applies the 

Equal Protection Clause to Racial 

Gerrymanders.. . «a vue. sn ad Haga vies 11 

Shaw v. Reno Applies Not Only to 

Majority-Minority Districts .................. 14 

The Continuing Evasion of the 

Principles of Shaw v. Reno Should 

NotBeTolerated ..... 5.0. an cain ans 17 

The Shaw v. Reno Requirement of 

a “Predominant” Racial Motive Should 

Be Conformed to Other Equal Protection 

Precedents ui iis a aie snigieies » i as 4 19 

    
 



  

111 

A Remedial Plan for Violations of 
Shaw v. Reno Requires Especially 
Demanding Judicial Scrutiny ................. 20 

The District Court Properly 
Granted Summary Judgment That 
North Carolina’s Twelfth Congressional 
Disirict is Unconstitutional .......0........0.. 23 

The Shape and Demographics of 

North Carolina’s Twelfth 

Congressional District Show 

Unmistakably that Race Was the 

Predominant Motive for Its Design ............ 25 

i. Race Dictated the Twelfth 

District’s Bizarre Shape and 

Lackof Compactness . i. 0. Lo. 25 

2. Contiguity was Subordinated 
to Racial Considerations .............. 30 

3. Political Subdivisions and 

Actual Communities of Interest 

Were Subordinated to Racial 

Considerations 774, ni gh r ah Reon 30 

District 12 Cannot Be Justified by 

Means of a Spurious Claim That It 

Was Created with a Political, 

Rather than Racial, Motive .................. 32 

The Affidavits of Legislators McMahan 
and Cooper Do Not Create Any 
Material Issue of Fact... . ... Foo oan vo 38  



  

iv 

D. The District Court Had No Occasion 

to Discuss Strict SCrLINY 5. rv dee aes i 43 

E. The Summary Judgment Also was 

Properon Other Grounds ......... .. canis 45 

COMCIUSION ti ho EB Ss sae dnt ale senses vu ns u's in 48 

    

 



  

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TABLE OF AUTHORITIES 

CASES 

Abrams v. Johnson, 117 S.Ct. 1925 QI997) ii ory Las 22 

Aleyska Pipeline Serv. Co. v. U.S.E.P.A., 856 F.2d 
309 O.C. Cir. 1988) ve = J Si oath Sl 24 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 
(1086) te ta LL BE aa a 24 

Bread Political Action Comm. v. Fed. Election 
Comm. 455 U.S. 3771982)... ol i oi ou 39 

Brown v. Board of Education, 347 U.S. 
48301054) oti EL A 16 

Brown v. Board of Education, 892 F.2d 851 
(OCI 1080) oo. a ae Son 21 

Brown v. Illinois, 422 U.S. 590 (1975) ............... 21 

Bush v. Vera, 517 U.S. 952 (1996)... ...:..: 0: passim 

D & W, Inc. v. City of Charlotte, 268 N.C. 577 
(A900Yeh it al ih oh, ray a 38 

Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526 
(Oy re EL arn 21 

Diaz v. Silver, 978 F. Supp. 96 (E.D.N.Y. 1997), 
Ad US SCL 36D: el 49  



  

Vi 

Drum v. Seawell, 250 F. Supp. 922 

MD.N.C.A980Y:0. is. ah tahini shit sss annd 18 

Dunaway v. New York, 442 U.S. 200 (1979) ........... 21 

Empire Distribs. of N.C. v. Schieffelin & Co., 

G79 F.Supp 541 (W.DN.C. 1987) .....o ines davis 39 

Hays v. Louisiana, 839 F. Supp. 1188 (W.D.La. 

3 5 Er SUR As Et IE DET ee RE 1 

Hunter v. Underwood, 471 U.S. 222 (1985) ........... 19 

Karcher v. Daggett, 462 U.S. 725 (1983) ............. 28 

Lawyer v. Department of Justice, 117 S. Ct. 2186 
CVOOTY fetes sips vei Fs 2 adie nt nea vise din vs Ton 15, 27, 45 

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 

AIS U.S 574C18806): coc: ..... vnvn sash wis JOT 23 

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

Milk Comm'n v. National Food Stores, 270 N.C. 

32301067)... co Be Se en kh an we ds 39 

Mt. Healthy City Sch. Dist. Bd. of Educ. v. 

Doyle, 429 U.S. 278 (1977) iv vii oi wu Bins wa alii 19 

Pope v. Blue, 809 F. Supp. 392 (W.D.N.C. 1992), 
aff'd. 506 US. 80LA09) =.) rin. ili BN 2 

Regional Rail Reorganization Act Cases, 419 

US I02€1974) .... ih ons so 5 i iis te ii wives 39 

   



  

vii 

Reynolds v. Sims, 377 U.S. 533 (1964) ......... 14, 18, 20 

Ross v. Communications Satellite Corp., 759 
Fd IS (Cir 1088 vid te cosas ao 24 

Ross v. Houston Independent Sch. Dist., 699 
Fd 2083 Cir 1983): oo Ss So 21 

School Bd. of the City of Richmond v. Baliles, 829 
F2d 1308 (AE Cir. A087): vied tv iii 4 21.22 

Shaw v. Hunt, 517 U.S. 899 (1996) .............. passim 

Shaw v. Hunt, 861 F. Supp. 408 (E.D.N.C. 1994), 
reversed 317 U.S. 899(1996) ...... ..... 5. on ui le 6 

Shaw v. Reno, 509 U.S. 630(1993) onus ls passim 

Swann v. Charlotte-Mecklenburg Bd. of Educ., 
402.U.S. L(1971) ... . ct i aE 21 

Taylor v. Alabama, 457 U.S. 687 (1982) .............. 2] 

Taylor v. Ouachita Parish Sch. Bd., 648 F.2d 959, 
(CI A1931). os. re ae a TE LE 21 

Thornburg v. Gingles, 478 U.S. 30 (1986) ............ 14 

United States v. Lawrence County Sch. Dist., 
TOO F.2d 1031 (50 Cir, 1986)... .- cus. 0 a oR, 21 

Village of Arlington Heights v. Metropolitan Dev. 
Corp. 429.US. 252 (1977)... 5. a0... us 2,19, 20, 46 

Wise v. Lipscomb, 437 U.S. 535 R370 PRON A 22  



  

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Wong Sun v. United States, 371 U.S. 471 (1963) .... 21,23 

CONSTITUTION AND STATUTES 

U.S. Constitution, Amendment XIV... o.oo 13 

Fed R.CIV.P. SOIC) onl i sands dive won vin ites 9,23 

N.C. Gen. Stat. Section 183-201(2) . ..n . vv desu vin vis ain 7 

N.C..Sess Laws 1998-2 . Si... Tu vino ne vileininiva nn sie sis 7 

OTHER AUTHORITIES 

11A Charles A. Wright, et al., Federal Practice 

and Procedure Sec. 2048 hn RE ce ah 24 

Richard H. Pildes & Richard G. Niemi, 

Expressive Harms, “Bizarre Districts, 

and Voting Rights: Evaluating 

Election-District Appearances After 

Shaw v. Reno, 92 Mich. L. Rev. 483 (1993) ......... 25 

» 

   



STATEMENT OF THE CASE 

A Brief History of North Carolina’s Racial 

Gerrymandering 

This appeal is yet another of the never-ending efforts by 

the appellants and their allies to perpetuate racial gerrymanders 

in North Carolina. To that end, they have employed specious 

arguments,’ posed undue procedural objections,” and used “post 

hoc rationalizations” and euphemisms to mask racial motives.’ 

  

'For example, in Shaw v. Hunt, 517 U.S. 899 (1996) (hereinafter 

“Shaw IT”), the Court described as “singularly unpersuasive” the State’s 

claim that the Twelfth District was “narrowly tailored.” Id. at 917. 

Thus, despite the clear intent of this Court’s opinion in Shaw v. 

Reno, 509 U.S. 630 (1993) (hereinafter “Shaw I’), the State continued to 

claim that the plaintiffs in Shaw had no standing under the Equal Protection 

Clause because they were white; and a similar argument has now been 
advanced in the amicus brief of the American Civil Liberties Union. ACLU 
Br. 14-16. Moreover, in the present appeal, appellants initially asserted that 
an order in the Shaw litigation which approved the 1997 redistricting plan 

precluded the claim for relief of Cromartie and his fellow plaintiffs — even 
though (a) appellants did not allege preclusion in their answer or otherwise 

assert it until filing their appeal; (b) no privity existed to support claim 

preclusion or collateral estoppel; and (c) the preclusion argument was 

forestalled by the language of the district court’s order in Shaw. This 
contention, which was one of three advanced in the appellants’ 

jurisdictional statement, has apparently now been abandoned, and it is also 

disavowed by the amicus brief of the United States. 

*“Post hoc rationalizations” was the term used by the three-judge 

district court in Hays v. Louisiana, 839 F. Supp. 1188 (W.D. La. 1993) to 

characterize race-neutral defenses of Louisiana’s racial gerrymanders by 

experts, some of whom also defended North Carolina’s racial gerrymanders 

in the Shaw litigation. “Minority-opportunity” district was a euphemism 

used in oral argument to defend the racially gerrymandered Texas districts 
that were the subject of Bush v. Vera, 517 U.S. 952 (1996).  



  

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The State’s history of stonewall defense of its racial 

gerrymanders makes its contentions on this appeal seem 

especially hollow. 

To analyze properly the present appeal requires an 

examination of the history of North Carolina’s racial 

gerrymandering, which begins with a redistricting plan 

adopted in 1991 that contained only one majority-minority 

district. After the Department of Justice denied preclearance 

pursuant to its “maximization policy,” that plan was replaced 

in January 1992 by a redistricting plan that had two majority- 

black districts. When this plan first was attacked by 

Republicans as a political gerrymander,’ the State claimed that 

its irregular shape reflected the demands of the Civil Rights 

Division. When the Shaw plaintiffs attacked the plan a few 
weeks later because it was a racial gerrymander, the State never 

denied that it was race-based. Instead, the racial gerrymander 
was defended — even in argument before this Court — as being 

race-based for benign reasons and therefore not in violation of 

the Equal Protection Clause. Moreover, the State insisted that 

the Shaw plaintiffs lacked standing to make an Equal Protection 
claim because they all were white. 

When this Court rejected these defenses in Shaw I and 

remanded the case for trial, the State adroitly changed its 

  

“In Village of Arlington Heights v. Metropolitan Dev. Corp., 429 

U.S. 252,267 (1977), the Court noted that “the historical background of the 

decision is one evidentiary source, particularly if it reveals a series of 

official actions taken for invidious purposes.” 

>See Pope v. Blue, 809 F. Supp. 392 (W.D.N.C. 1992), aff'd, 506 

U.S. 801 (1992). 

   



3 

position and contended that the 1992 plan actually was not 

race-based. At trial and on appeal, reliance was placed on 

novel concepts — such as “functional compactness” — to 

establish that the two majority-black districts had been created 

because of factors other than race and therefore the principles 

enunciated in Shaw I had not been violated. Fortunately, the 

State’s “post hoc rationalizations” were rejected in Shaw II° 

and further use of the 1992 plan was prohibited. However, 

despite strenuous efforts by the Shaw plaintiffs to persuade 

either the General Assembly or the district court to put a 

constitutional plan into effect in time for the 1996 elections, 
those elections took place in November 1996 pursuant to the 

same “bizarre” plan that this Court had held unconstitutional 
several months earlier in Shaw II.” On March 31, 1997, 
immediately before the deadline set by the district court, the 

General Assembly enacted a new redistricting plan, which was 

then precleared by the Civil Rights Division. Despite a 

  

*These rationalizations were impossible to reconcile with the shape 

and demographics of the two majority-black districts, which linked large 

concentrations of African-Americans by narrow “white corridors,” utilized 

“point contiguousness,” split numerous precincts along racial lines, and 

violated nearly every race-neutral principle of redistricting. See Shaw II. 

"Ironically, in the Texas redistricting litigation — which had 

commenced some months after suit was brought in North Carolina and 

which was decided by this Court at the same time as Shaw II — the three- 

judge district court put a new plan into effect for the 1996 election. Of 

thirty congressional districts in Texas, the new plan altered thirteen districts 

— more than the entire number of districts in North Carolina. Yet North 

Carolina’s legislature considered it impossible to enact a new plan for the 

1996 elections and, by divided vote, the district court declined to intervene.  



  

4 

statement of opposition by the Shaw plaintiffs,’ the district 

court approved the plan. 

In Shaw II this Court ruled only on the challenge to the 

Twelfth District of the 1992 plan because none of the plaintiff- 

appellants lived in the First District. Therefore, Martin 

Cromartie and two other residents of the First District filed a 

complaint on July 3, 1996, which alleged that this district also 

violated the Equal Protection Clause. Their action, however, 

was stayed by consent to await enactment by the General 

Assembly of a new redistricting plan. After the district court in 

Shaw approved the 1997 plan only on a limited basis,” an 
amended complaint was filed in the Cromartie action. See 

Joint Appendix (hereinafter “J.A.”) 7. It sought a temporary 

and permanent injunction against use of the 1997 plan. Relying 

on the data available through the General Assembly’s public 

access computer — data which had been submitted to the 

Department of Justice in the General Assembly’s effort to 

obtain preclearance for the 1997 plan — the amended complaint 

not only attacked the “new” First District but also alleged that 

the Twelfth District in the 1997 plan was composed of parts of 

  

The five Shaw plaintiffs all lived in Durham County, which the 
General Assembly had removed from the Twelfth District. Under Shaw II 

they now lacked standing to challenge that district, although they asserted 

that it still was an unconstitutional racial gerrymander. 

’See Memorandum Opinion in Shaw v. Hunt, in Appendix to 

Jurisdictional Statement (hereinafter J.S. App.) 159a. The Court 

specifically stated that because of the “dimensions of this civil action as that 

is defined by the parties and the claims properly before us . . . we only 

approve the plan as an adequate remedy for the specific violation of the 

individual equal protection rights of those plaintiffs who successfully 

challenged the legislature’s creation of former District 12. Our approval 

thus does not — cannot — run beyond the plan’s remedial adequacy with 

respect to those parties and the equal protection violation found as to former 

District 12.” J.S. App. 167a. 

   



5 

six counties'® and that each of those counties 

was divided along racial lines and for a 

predominantly racial motive. Of Mecklenburg 

County’s black population, 84% was placed in 

the Twelfth District and 16% in the Ninth; but 

of its white population 27% was placed in the 

Twelfth District and 73% in the Ninth. Of 

Forsyth County’s black population, 65% was 

placed in the Twelfth District and 35% in the 

Fifth District; but of its white population, 8% 

was placed in the Twelfth District and 92% in 

the Fifth. Of Guilford County’s black 

population, 76% was placed in the Twelfth 

District and 24% in the Sixth; but of its white 

population, 25% was placed in the Twelfth 

District and 75% in the Sixth. Of Iredell 

County’s black population, 63% was placed in 
the Twelfth District and 37% in the Tenth; but 

of its white population 37% was placed in the 

Twelfth District and 63% in the Tenth. Of 

Rowan County’s black population, 66% was 
placed in the Twelfth District and 34% in the 

Sixth; but of its white population, 23% was 

placed in the Twelfth District and 77% in the 

Sixth. Of Davidson County’s black population 

80% was placed in the Twelfth District and 
20% in the Sixth District; but of its white 

population, 49.6% was placed in the Twelfth 
District and 50.4% in the Sixth District. The 

Twelfth District is the only congressional 
district which under the March 1997 plan 

  

"Some plaintiffs had been added who lived in District 12 and 
therefore had standing under Shaw II.  



  

6 

contains no county which is not divided." 

After the State defendants had answered, the three- 

judge district court — of which only one member, Chief Judge 

Richard L. Voorhees, had participated in the Shaw litigation"? 

— conducted a hearing on March 31, 1998. Soon thereafter it 

granted summary judgment for the plaintiffs as to the “new” 

Twelfth District; and the court permanently enjoined use of the 

1997 plan for any primary or general election.” However, the 

court refused summary judgment for either the plaintiffs or 

defendants as to the 1997 plan’s First District. The defendants 
then unsuccessfully sought a stay from the district court and 

thereafter from this Court. See Hunt v. Cromartie (No. A-793), 

118 S. Ct. 1510 (1998). Later, still another fruitless effort was 

made by the State to delay the effect of the injunction as to six 

of the congressional districts — namely, the First District and 

five others in the eastern part of North Carolina. 

The district court allowed the General Assembly an 

opportunity to enact still another plan — which was forthcoming 

  

See J.A. 16-17. As the amended complaint also noted, 
Mecklenburg and Guilford Counties — two of North Carolina’s most 
populous counties — had never been in the same congressional district from 
1793 until the 1992 redistricting plan was enacted; nor had Mecklenburg 

been in the same district with Forsyth County — another populous county — 

during any of this same period. See id. See also the corresponding 
admissions in appellants’ answer. Id. at 30-31. 

During the Shaw litigation Chief Judge Voorhees consistently 

dissented from rulings which supported North Carolina’s flagrant racial 

gerrymander. See, e.g., Shaw v. Hunt, 861 F. Supp. 408, 477 (E.D.N.C. 

1994) (Voorhees, C.J. dissenting), reversed by Shaw II. 

3The 1997 plan was never used in an election. The 1992, 1994, 

and 1996 elections were conducted under the 1992 plan while the 1998 

election took place under the 1998 plan. 

   



7 

in May 1998. Under this plan, the First District was left 

unchanged; but instead of splitting six counties, the Twelfth 

District now contained one entire county and split only four. 
The percentage of African-Americans in this district was also 

reduced from 46.67% to 35.58%, although the Twelfth District 

stll linked two major urban concentrations of African- 

Americans — one in Charlotte and the other in Winston-Salem. 

The 1998 plan contained a unique provision that it would be 

“effective for the elections for the years 1998 and 2000 unless 

the United States Supreme Court reverses the decision holding 

unconstitutional G.S. 163-201(a) as it existed prior to the 

enactment of this act.”"* 

The plaintiffs informed the district court that they 

opposed the 1998 plan because — even though an improvement 

on its predecessors — the plan still was an unconstitutional 

racial gerrymander. However, the court authorized the State to 

use this plan for the 1998 congressional primaries — which were 

deferred until September — and for the general election on 
November 3, 1998. See J.S. App. 175a. The district court 

prescribed a discovery schedule in preparation for a trial as to 

the constitutionality of the First District and stated that it also 

would consider any additional evidence that plaintiffs might 

offer with respect to the Twelfth District’s unconstitutionality. 

After appellants filed their jurisdictional statement, the district 

court, by consent of all the parties, stayed proceedings to await 

the outcome of this appeal. Meanwhile, Cromartie and the 

other appellees in this case appealed the order which allowed 

  

“See N.C. Sess. Laws 1998-2, enacted May 21, 1998 (emphasis 

added), which is discussed in Appellees’ Motion to Dismiss or, in the 
Alternative, to Affirm at 10. Under this unique provision, if this Court 

“reverses the decision” below, the more race-based 1997 plan will come 

into effect for elections in the year 2000, and the Representatives elected on 
November 3, 1998 will have their districts changed.  



  

8 

the 1998 plan to be used. By their appeal in Cromartie v. Hunt 
(No. 98-450), they seek resolution of several issues also present 

in this appeal. 

SUMMARY OF ARGUMENT 

The principles established by Shaw v. Reno should be 

given full effect — not overturned, as some of the amici have 

urged, or unduly limited, as appellants and all their amici seek. 

To subject race-based congressional districts to strict scrutiny — 

as required by Shaw and the Equal Protection Clause — assures 

that racial stereotypes will not mar the electoral process, that 

members of Congress will not feel an obligation to represent 

only voters of their own race, and that voters of one race will not 

feel that they lack a voice if they are represented in Congress by 

someone of another race. Shaw has enhanced the confidence of 

voters in the electoral process. Fears that it might diminish 
racial diversity proved groundless." 

Because application of the principles of Shaw v. Reno 

produces a more meaningful electoral process and reduces the 

incentive for racial stereotyping and polarization, those 
principles should be vigorously applied, rather than left 

unenforced. Thus, contrary to the position taken by the General 

Assembly in enacting and defending the 1997 plan, race-based 

  

'*Contrary to predictions by some Shaw critics, every African- 
American who had been originally elected to Congress from a majority- 

minority district was re-elected in redrawn districts — except for 

Representative Cleo Fields, who, instead of seeking re-election, ran for 

governor of Louisiana. In North Carolina, the two African-Americans, 

Melvin Watt and Eva Clayton, who had been elected three times under the 

1992 plan, were handily reelected on November 3, 1998 even though each 

ran in a district with a lower percentage of black voters than before. Such 

results demonstrate that African-American candidates do not need a 

majority-black district to be elected if they campaign vigorously to gain 

support of all voters, rather than only voters of their own race. 

   



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districts — whether or not majority-minority — must be eliminated 

unless they pass the test of strict scrutiny. Likewise, the Court 

should not allow evasion of the Shaw requirements by the resort 

to amorphous concepts like “functional compactness” and by the 

artful phrasing of legislative history and affidavits. Especially 

in dealing with a remedial plan that the General Assembly 

purportedly designed to correct the past constitutional defects, 

the Court should insist that all “vestiges” of the racial 

gerrymander be eliminated in order to assure that public 

confidence in the electoral process is restored and that judicial 

rulings are not circumvented. State appellants’ plea for further 

guidance 1s surprising because the history of racial 
gerrymandering in North Carolina reveals that they have 

consistently disregarded guidance that has already been 
provided. 

The appellants and amici contend that the district court 
failed properly to apply Federal Rule of Civil Procedure 56(c) in 
ruling on the motions for summary judgment submitted by 
plaintiffs and defendants. The language of the court’s 

Memorandum Opinion refutes this argument. The district 

court’s opinion marshals the uncontroverted material facts to 
demonstrate conclusively that the 1997 version of District 12 

was the result of a predominantly racial motive on the part of the 

legislature. Although “appearances” are not conclusive as to the 

motive for drawing a particular district, the shape of the Twelfth 

District, see map, J.S. App. 59a — especially when juxtaposed 

against the race-based Twelfth District of the 1992 plan, see 

map, J.S. App. 61a — is strong evidence as to the racial motive 
for the plan. The demographics of the district and its violation 

of traditional race-neutral principles are additional evidence. 

Finally, the history of the plan — including some significant 

contradictions between the plan and the stated reasons for its 

enactment — constitutes still further evidence of the racial 
motive. The uncontroverted evidence was more than enough to  



  

10 

warrant summary judgment for the plaintiffs. 

Although the issue was not raised in the Jurisdictional 

Statement or in the State appellants’ brief, intervenor-appellants 
and some of the amici contend that the district court should have 

engaged in “strict scrutiny” of the race-based District 12. 

Nothing in the record suggests that the district was created in 

response to a “compelling governmental interest” or that it 

embodied “narrow tailoring.” Indeed, for appellants to claim 

that the district met strict scrutiny would be inconsistent with 

their insistence that there had been no racial purpose in its 

design. Moreover, incumbent protection and maintaining 

partisan balance — the claimed reasons for the 1997 plan - could 
not be considered “compelling” governmental interests; and to 

assert that the “new” Twelfth District was “narrowly tailored” 

would defy this Court’s treatment of its predecessor in Shaw I1.'° 

Even if the district court had not found specifically from 

the uncontroverted facts that race was the General Assembly’s 

predominant motive for drawing District 12, the summary 

judgment was proper. Approval of a remedial plan requires 

close judicial scrutiny to assure that any unconstitutional taint of 

the replaced plan has been eliminated. When, as with North 

Carolina’s District 12, the “new” district admittedly preserves 

the “core” of the original district, retains many “appearances” of 

that district, seeks to guarantee reelection of incumbent elected 

from the replaced district, and violates “traditional districting 

principles,” it cannot be approved. 

  

The General Assembly’s later enactment of the less race-based, 

more compact 1998 plan for the same claimed purpose of incumbent 

protection and maintaining partisan balance also indicates that these stated 

purposes are disguises for a predominant racial motive. 

   



11 

ARGUMENT 

I. THE CONSTITUTIONALLY MANDATED 
PRINCIPLES OF SHAW V. RENO SHOULD BE 
REAFFIRMED AND GIVEN FULL EFFECT. 

A. Shaw v. Reno Properly Applies the Equal Protection 

Clause to Racial Gerrymanders. 

Some of the amici, such as the American Civil Liberties 

Union, wish this Court to overrule Shaw v. Reno in anticipation 

of “the millennium census and the next round of redistricting.” 

ACLU Br. 4. Apart from the importance of stare decisis in 
assuring respect for our legal system,” the overruling of this 

landmark decision would be properly perceived as a dismaying 

step backwards. Public confidence in the integrity of the 

electoral process would be destroyed by such a repudiation of 

the Court’s perceptive observation in Shaw I that: 

[W]e believe that reapportionment is one 

area in which appearances do matter. A 

reapportionment plan that includes in one district 

  

In Vera, Justice O’ Connor wrote: 
Our legitimacy requires, above all, that we adhere to stare 

decisis, especially in such sensitive political contexts as 
the present, where partisan controversy abounds. 

Legislators and district courts nationwide have modified 

their practices — or, rather, reembraced the traditional 

districting practices that were almost universally 

followed before the 1990 census — in response to Shaw 

I. Those practices and our precedents, which 

acknowledge voters as more than mere racial statistics, 

play an important role in defining the political identity of 

the American voter. 

517 U.S. at 985.  



  

12 

individuals who belong to the same race, but 
who are otherwise widely separated by 

geographical and political boundaries, and who 

may have little in common with one another but 

the color of their skin, bears an uncomfortable 

resemblance to political apartheid. It reinforces 

the perception that members of the same racial 

group — regardless of age, education, economic 

status, or the community in which they live — 

think alike, share the same political interests, and 

will prefer the same candidates at the polls. 

Shaw I, 509 U.S. at 647. A license would be granted to 

resurrect the distorted race-based districts for which Shaw 

spelled doom." Apparent approval would be given to the 
polarizing view held by some legislators that their primary 

responsibility is to represent voters of their own race." If Shaw 
I had not been decided, the Civil Rights Division would have 

continued to enforce its “maximization policy,” which for 

Section 5 preclearance required states to create majority-black 

districts in any way possible — no matter how contrary to 

traditional redistricting principles. See Miller v. Johnson, 515 

  

'* Among the bizarre districts for which Shaw v. Reno sounded a 

death knell were North Carolina’s “I-85 district,” Louisiana’s “mark of 

Zorro district,” Georgia’s “march to the sea district,” New York's 

“Bullwinkle district,” and Texas’s “Mogllianni painting districts.” 

“Representative Melvin Watt, an African-American, who in 1992 
and thereafter has been elected to Congress from District 12, provided an 

example of this view when he testified in the trial of Shaw v. Hunt that 

“representing a district that you are consistent with in your philosophies 

allows you to be consistent in voting your conscience without buckling 

under or catering, as you said my statement said, to other interests that may 

not predominate in my district [such as the ‘business or white community.’]” 

861 F. Supp. 408, 478, n.5 (E.D.N.C. 1994) (Voorhees, C.J. dissenting) 

(emphasis and brackets in original). 

   



13 

U.S. 900, 917 (1995). Retreating from Shaw would pave the 

way for the Department of Justice once again to impose its will 
unduly on legislatures engaged in the next decade’s redistricting. 

Some amici also attack the holding of Shaw II that white 

plaintiffs have standing to complain about majority-black 

districts. They fail to recognize that a Shaw claim is 

“analytically distinct” from a vote dilution claim, Miller, 515 

U.S. at 911 (citation omitted); that the Fourteenth Amendment 

provides that “no state shall deny to any person within its 

jurisdiction the equal protection of the laws” (emphasis added); 

and that therefore the race of the plaintiff who brings a Shaw 
challenge is immaterial.” 

The principles of Shaw have also been attacked on the 
ground that their rigorous application will result in burdensome 

litigation. However, this criticism fails to take into account that 

much of the past litigation was caused by the Civil Rights 
Division’s abuse of its preclearance authority. Cf. Miller, 515 

U.S. at 917. Moreover, now that — “in response to Shaw I’ — 

legislators and districts courts nationwide have “reembraced the 

traditional districting practices that were almost universally 

followed before the 1990 census,” Vera, 517 U.S. at 985, the 

occasion for litigation has been greatly reduced. If North 

Carolina — where Shaw arose — had done the same, there would 

have been no occasion for the present appeal. It is the State’s 

  

*Contrary to the implication in the ACLU brief at 12, nothing in 
Shaw limits its application to majority-black districts. A majority-white 

district is equally subject to attack if race was the predominant motive for 

its boundaries — for example, if a district was intentionally “bleached.” 

Indeed, in the pending case of Daly v. High, No. 5:97-CV-750-BO 

(E.D.N.C.), the complaint attacks not only North Carolina’s two majority- 

black districts but also some majority-white districts.  



  

14 

evasion of Shaw that has created the problem and generated 

litigation. In short, those who create the need for litigation by 
their non-adherence to Shaw have no standing to complain about 

the resulting burden on the courts. This evasion should not be 

tolerated by this Court.”! Furthermore, the purported dilemma 
of legislators caught between the requirements of Shaw and the 

threat of Section 2 litigation has been exaggerated. Legislatures 

which adhere to traditional districting practices will have few 

problems so long as they do not divide “geographically 

compact” groups of minority voters. 

B. Shaw v. Reno Applies Not Only to Majority-Minority 

Districts. 

Consistent with its refusal to accept the legitimacy of 

Shaw in devising the 1997 plan, the North Carolina General 

Assembly took the position that Shaw applied only to majority- 
minority districts. Senator Roy Cooper, an attorney who chaired 

the Senate Redistricting Committee, explained to his fellow 

senators: 

[When the Court struck down the 12" District it 
was because the 12" District was majority 
minority and it said that you cannot use race as 

the predominate factor in drawing the districts. 

  

In a leading case involving legislative districts, Chief Justice 
Warren expressed for the Court this view of its responsibility: “We are 

cautioned about the dangers of entering into political thickets and 

mathematical quagmires. Our answer is this: a denial of constitutionally 

protected rights demands judicial protection; our oath and our office require 

no less of us.” Reynolds v. Sims, 377 U.S. 533, 566 (1964). 

ZSee Thornburg v. Gingles, 478 U.S. 30, 50 (1986), which, under 

certain conditions, requires majority-minority districts for geographically 

compact groups of minority voters. In this instance, the legislature may be 

“race-conscious” in order to avoid splitting such groups. 

   



15 

Well, guess what! The 12" District, under this 
plan, 1s not majority minority. Therefore it is my 

opinion and the opinion of many lawyers that the 

test outlined in Shaw v. Hunt will not even be 

triggered because it is not a majority minority 

district and you won’t even look at the shape of 

the district in considering whether it is 

constitutional. 

J.A. 132. Likewise, in proposing District 12 to his colleagues, 

Representative W. Edwin McMahan, who chaired the House 

Redistricting Committee, stated: 

[It 1s] not a Majority/Minority District now so 

shape does not create that — that was the basis the 

Court used to say this was unconstitutional — not 

an argument now. 

J.A. 121. 

This premise — presumably based on advice from the 

State’s Attorney General — is in error.” In Miller, this Court 
stated that the plaintiff bears the burden of showing “that race 

was the predominant factor motivating the legislature’s decision 

to place a significant number of voters within or without a 

particular district.” 515 U.S. at 916. Although the Court was 

discussing Georgia’s majority-black districts, the rationale of 

Miller and Shaw is not limited to majority-black districts. In 
Lawyer v. Department of Justice, 117 S. Ct. 2186, 2195 (1997), 

the Court’s discussion of whether a Florida reapportionment 

plan subordinated traditional redistricting principles to race does 

not intimate that the legislative district under attack was immune 

  

In his dissent in the court below, Judge Ervin made the same 
error. See J.A. 30a.  



  

16 

from the application of Shaw principles simply because it was 
“not a majority black district, the black voting-age population 
being 36.2%.” As Miller points out, Shaw — like Brown v. 
Board of Education, 347 U.S. 483 (1954) and other leading 

precedents — is based on the idea that “[a]t the heart of the 

Constitution’s guarantee of equal protection lies the simple 

command that the Government must treat citizens as individuals, 

not as simply components of a racial, religious, sexual or 

national class.” 515 U.S. at 911 (citations omitted). In creating 

District 12, the General Assembly moved a “significant number” 

of African-Americans into District 12 and as an inevitable 

consequence moved a “significant number” of whites into 

adjacent districts.”* These citizens, black and white, were not 

treated as “individuals” but as components of a racial class — as 

“mere racial statistics,” see Vera, 517 U.S. at 985. The very fact 

that the legislators believed that Shaw I did not apply to 

majority-white districts helps explain the State’s claim that the 

legislators attempted to comply with Shaw even though they 

created an obviously race-based district in violation of 

traditional districting practices.” 

  

**Two major concentrations of African-Americans in the northern 

part of the state — 70,114 in Guilford County and 43,105 in Forsyth County 
— were placed in the same district as Mecklenburg County, which is on the 
South Carolina line. The obvious purpose was to link them with 113,442 

African-Americans in Mecklenburg County. The district court’s 

Memorandum Opinion spells out in some detail how this “significant 

number” of African-Americans were placed — precinct by precinct — in 

District 12. The maps lodged with the Court by appellees make quite 

evident the racially motivated placement of “significant numbers” of voters 
“within or without” District 12. 

»This fundamental misunderstanding of Shaw by the General 

Assembly contradicts the appellants’ assertion that “[t]hese legislators 

[Representative McMahan and Senator Cooper] testified under oath that 

they and their colleagues were well aware, when they designed and enacted 

the 1997 plan, of the constitutional limitations imposed by this Court’s 

decisions in Shaw and its progeny. . ..” See St. App. Br. 25. 

   



17 

C. The Continuing Evasion of the Principles of Shaw v. 
Reno Should Not Be Tolerated. 

Appellants and their allies have consistently derided 

Shaw as being concerned only with “appearances.” However, 

not only do appearances of a district have significance in 

generating racial perceptions and polarization, see Shaw I, 509 

U.S. at 647, but also “appearances” help establish the legislative 

intent. Thus, in Miller the Court made clear that appearances 

together with relevant demographics are an acceptable means of 

proving a predominant racial motive. See 515 U.S. at 905; cf. 

Shaw II. In urging that a direct admission by the legislature of 

a predominant racial motive is necessary, appellants disregard 

the Court’s own language in Miller, which clearly stated that 

circumstantial evidence was a permissible alternative. Seeking 

to achieve their objective indirectly, appellants insist that even 

if a predominant racial motive is clearly revealed by a 

redistricting plan’s shape, demographics, and violation of 

traditional redistricting principles, summary judgment cannot be 

entered if two legislators execute affidavits denying a racial 

motive. Accepting this argument would facilitate the evasion of 

Shaw principles, produce delay, and result in unnecessary trials. 

Appellants’ argument is especially vulnerable when, as here, the 

overwhelming evidence of racial motivation is not “directly 

contradicted” by the legislators’ affidavits” and when these 

affidavits not only lack specificity but also are inconsistent with 

statements made by the same legislators on the floor of the 
General Assembly, with the State’s own preclearance 

submission, and with the demographics related to the plan. 

  

Question 1 in State appellants’ brief assumes that plaintiffs’ 
evidence was “directly contradicted” by the affidavits of Senator Cooper 

and Representative McMahan. As discussed later in detail, this assumption 
is totally erroneous.  



  

18 

Another means for evading Shaw requirements and 
masking a racial motive is use of the amorphous concept of 
“functional compactness.” Because this concept — unlike 

geographical compactness®’ — cannot be quantified, it can be 
employed to conceal the use of racial stereotypes. As employed 

by the State in the Shaw litigation to defend the 1992 plan and 

now the 1997 plan — and as it has been used to defend other 

racial gerrymanders — “functional compactness” assumes that 

blacks who live in one city necessarily have more in common 

with blacks in another city than they have in common with white 

neighbors in their own city — even though their white neighbors 

may work in the same offices and factories as these blacks, shop 

in the same stores, have children in the same schools, read the 

same newspapers, watch the same television stations, listen to 

the same radio stations, have the same local government 

officials, and serve on the same juries. Contrary to this 

  

“The “perimeter measure” and “dispersion measure” of 

geographical compactness are familiar to this Court and helped demonstrate 
the lack of compactness of the districts involved in Shaw II and Bush v. 

Vera. According to appellants’ expert, Dr. Gerald R. Webster, these 

“[tJ]wo compactness measures . . . are now among the most commonly 

recognized and applied by legal and academic scholars.” J.S. App. 120a. 
In this case, they were used by plaintiffs’ experts — Dr. Ron Weber, Dr. 

Timothy O'Rourke, Dr. Thomas Darling, and Dr. Carmen Circinione — in 

reaching their unanimous opinion that the legislature designed District 12, 
as well as District 1, with a predominant racial motive. Although 

“compactness” and “contiguousness” of districts are not constitutional 

requirements, their absence has equal protection implications, because it 

contradicts the rationale for having geographically defined districts. Cf. 
Reynolds v. Sims, 377 U.S. at 568, n.21 (Alabama apportionment plan 

“presented little more than crazy quilts, completely lacking in rationality, 

and could be found invalid on that basis alone”); Drum v. Seawell, 250 F. 

Supp. 922, 925 (M.D.N.C. 1966) (setting aside North Carolina’s 

redistricting plan because protection of incumbent congressmen 
predominated “over the requirements of practicable equality, and we think 

that compactness and contiguity are aspects of practicable equality”). 

   



19 

assumption, few residents of Charlotte — regardless of their race 

and regardless of their “drive time”? to Greensboro and 
Winston-Salem — would recognize their “functional” identity 

with residents of Greensboro and Winston-Salem; and vice 

versa. Moreover, when, as in North Carolina’s redistricting, 

“functional compactness” has been used repeatedly to justify 

congressional districts in which geographically separated 

concentrations of blacks are linked together but has not been 

used to explain how majority-white districts are linked together, 

this circumstance is added proof of the legislature’s disguised 

racial motive. 

D. The Shaw v. Reno Requirement of a “Predominant” 

Racial Motive Should Be Conformed to Other Equal 

Protection Precedents. 

In Village of Arlington Heights v. Metropolitan Dev. 

Corp., 429 U.S. 252, 265-66 (1977), this Court ruled that in 

reviewing legislative or administrative action to determine if it 
violated equal protection the issue is whether “there is a proof 

that a discriminating purpose has been a motivating factor in the 

decision.” If so, “judicial deference” to the legislature or 

administrative body “is no longer justified.” Id, cf. Mt. Healthy 

City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977). 

“Once racial discrimination is shown to have been a ‘substantial’ 

or ‘motivating’ factor behind enactment of the law, the burden 

shifts to the law’s defenders to demonstrate that the law would 

have been enacted without this factor.” Hunter v. Underwood, 

  

®Dr. Stuart's affidavit about “average driving times in an 
automobile” — in which *“[n]o allowances were made for possible rush hour 

traffic congestion” — not only ignores “rush hour congestion” in the cities 

involved, but also makes no mention of the fact that Charlotte is in one 

metropolitan area and one media market, while Greensboro and Winston- 

Salem are in a different metropolitan area and media market. J.S. App. 
101a.  



  

20 

471 U.S. 222, 228 (1985). The issue then is whether the same 

action would have been taken in the absence of the racial motive 

— whether that motive was a “but for” cause of the action. To 

promote consistency with these other equal protection cases, 

appellees submit that the Shaw requirement of discriminatory 

intent should be phrased in terms other than a “predominant 

racial motive” and that the inquiry should be whether the 

legislature had a racial motive without which the redistricting 

plan would not have been enacted. Although avoidance of 

judicial interference with the authority of state legislatures 1s an 

important goal, even more important in our democratic society 

is preservation of the rights of the voters who elect the state 

legislators and representatives to Congress. “The right to vote 

freely for the candidate of one’s choice is of the essence of a 

democratic society.” Shaw I, 509 U.S. at 639 (quoting Reynolds, 

377 U.S. at 555). If the Arlington Heights test is used to prevent 

other race-based violations of the right to equal protection, 
consistency and the avoidance of confusion would dictate that it 

be used to prevent unconstitutional racial gerrymanders.” 

E. A Remedial Plan for Violations of Shaw v. Reno 

Requires Especially Demanding Judicial Scrutiny. 

After racial segregation in the schools was held by this 

Court to violate equal protection guarantees, many federal 

district courts were required to oversee the process of school 
desegregation. For their guidance, the Court emphasized that 
once an equal protection violation had been proven, local school 

  

®Of course, in this case the district court expressly determined 

from the uncontroverted material facts that the General Assembly’s racial 

motive was predominant. Obviously the same evidence would establish 

that, absent the legislature’s racial purpose, any redistricting plan enacted 

would have been quite different. 

   



Lo
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21 

authorities must “eliminate from the public schools all vestiges 
of state-imposed segregation.” Swann v. Charlotte-Mecklenburg 

Bd. of Educ., 402 U.S. 1, 15 (1971). In another school 
desegregation case, the Court made clear that the Dayton Board 

of Education was “under a continuing duty to eradicate the 

effects” of segregated schools. See Dayton Bd. of Educ. v. 

Brinkman, 443 U.S. 526, 537 (1979). Various courts of appeal 
have rendered decisions to the same effect.’’ Somewhat 

analogous are cases which discuss the effects of the violation of 

due process rights by government agents and which hold that 

confessions are inadmissible if they result from an 

unconstitutional search or arrest. See Wong Sun v. United States, 

371 U.S. 471, 484 (1963); Brown v. Illinois, 422 U.S. 590 
(1975); Dunaway v. New York, 442 U.S. 200, 216 (1979); 

Taylor v. Alabama, 457 U.S. 687 (1982). 

In line with these precedents, it deserves emphasis that 
the 1997 redistricting plan reviewed by the district court was a 

“remedial plan” adopted after North Carolina’s 1992 plan had 
been held unconstitutional. Although alegislature must be given 

  

*Such “vestiges” include faculty assignments, transportation, 
student assignments, and “racially-identifiable” schools. See United States 
v. Lawrence County Sch. Dist., 799 F.2d 1031, 1043 (5" Cir. 1986). 

See, e.g., Brown v. Board of Education, 892 F.2d 851, 859 (10® 
Cir. 1989) (defendant Board of Education must prove its efforts to comply 

with desegregation orders had “eliminated all traces of past intentional 

desegregation to the maximum feasible extent”); Taylor v. Ouachita Parish 

Sch. Bd., 648 F.2d 959, 967-68 (5th Cir. 1981) (failure of school authorities 

to eradicate the “vestiges” of de jure segregation is a constitutional 

violation); Ross v. Houston Independent Sch. Dist., 699 F.2d 218, 225 (5* 

Cir. 1983) (a school system must “eradicate, root and branch, the weeds of 

discrimination”); School Bd. of the City of Richmond v. Baliles, 829 F.2d 

1308, 1311 (4™ Cir. 1987) (once the equal protection violation has been 

established, plaintiff is “entitled to the presumption that current disparities 

are causally related to prior segregation, and the burden of proving 
otherwise rests on the defendants”).  



  

22 

a reasonable opportunity to meet constitutional requirements by 

adopting a substitute measure rather than for a federal court to 

devise its own plan, see Wise v. Lipscomb, 437 U.S. 535, 540 

(1978), this 1s consistent with requiring that district courts 

examine the remedial plan with special care to assure that no 

“vestiges” of the unconstitutional racial gerrymander remain and 

that all “traces” of the earlier predominant racial motive have 

been rooted out. Moreover, when — as with North Carolina’s 

1992 and 1997 redistricting plans — a clear resemblance exists 

between the earlier unconstitutional plan and the remedial plan, 

see J.A 59a and 61a, a plaintiff is entitled to the presumption 
that “current disparities are causally related” to the earlier 
gerrymander and the “burden of proving otherwise rests on the 

defendants.” Cf. School Bd. of the City of Richmond v. Baliles, 

829 F.2d at 1311. 

In defending the 1997 plan, appellants insist that their 

goals were political — to protect incumbents, maintain a partisan 

balance, and maintain the cores of earlier districts. See St. App. 

Br. at 24-25. However, since all the incumbents were elected 

pursuant to an unconstitutional plan, their “protection” — to 

whatever extent it may be related to retaining the “cores” of the 

districts that elected those incumbents — is the antithesis of 

eliminating all “vestiges” and “traces” of the 1992 racial 

gerrymander. The same holds true for “maintaining partisan 

balance” which was achieved under an unconstitutional plan. 

The goal of retaining the cores of districts in the 1992 plan is 

reminiscent of the unsuccessful reliance by the appellants in 
Abrams v. Johnson, 117 S. Ct. 1925 (1997), upon an 

unconstitutional plan that had been drawn in 1991 to satisfy the 

Civil Rights Division’s unlawful “maximization” policy. As this 

Court made clear, the baseline for the remedial plan should 

instead have been the 1982 redistricting plan, which had not 
been tainted by a predominant racial motive. See id. at 1939. 
Likewise, if the North Carolina General Assembly wished to use 

   



23 

an earlier plan as a baseline, that baseline should have been the 

plan used for congressional elections in the 1980s — a plan that 
was not race-driven. 

Furthermore, in dealing with a remedial plan, a special 

danger exists that — as 1n this case — the legislature will make 

misleading use of labels and will claim spuriously that a racial 

gerrymander 1s a “political” gerrymander. Indeed, if such a 

defense were accepted uncritically, the corollary would be that 

in 1997 the General Assembly could have reenacted the original 

1992 redistricting plan and then defended it because now its 

predominant motive was “political” — protecting incumbents and 

maintaining the existing partisan balance. The “political” 
defense should be summarily rejected in this case where the 

“fruit” of an unconstitutional racial gerrymander are used to 

justify perpetuating that same constitutional violation. 

II. THE DISTRICT COURT PROPERLY GRANTED 
SUMMARY JUDGMENT THAT NORTH 
CAROLINA’S TWELFTH CONGRESSIONAL 
DISTRICT IS UNCONSTITUTIONAL. 

Summary judgment is appropriate when no genuine issue 

exists as to any material fact and on the uncontroverted material 

facts the moving party is entitled to judgment as a matter of law. 

See Fed. R. Civ. Proc. 56(c). The moving party is entitled to 

summary judgment when a rational trier of fact, after 

considering the record as a whole, could not find for the non- 

moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio 

  

**The logic of the “fruit of the poisonous tree” doctrine — which 
this Court has applied to protect due process rights, cf. Wong Sun v. U.S. - 

seems equally applicable in preventing violations of equal protection rights.  



  

24 

Corp., 475 U.S. 574, 587 (1986). The moving party must 
demonstrate the lack of a genuine issue of fact for trial, and if 

that burden is met, the party opposing the motion must show 

evidence of a genuine factual dispute. The “quality and quantity 

of evidence required by the governing law” is to be reviewed on 

motion for summary judgment. See Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 254 (1986). The “mere existence of a 

scintilla of evidence” for the non-moving party’s position is 

insufficient to defeat a properly supported motion; there must be 

enough evidence for a reasonable jury to find for the non- 
moving party. Id. at 252; see also Aleyska Pipeline Serv. Co. v. 
U.S. E.P.A., 856 F.2d 309, 314 (D.C. Cir. 1988) (“a motion for 
summary judgment adequately underpinned is not defeated 
simply by a bare opinion or an unaided claim that a factual 

controversy persists”); Ross v. Communications Satellite Corp., 

759 F.2d. 355, 365 (4™ Cir. 1985) (“[u]lnsupported allegations as 

to motive do not confer talismanic immunity from Rule 56"). 

Appellants cannot justly contend that Rule 56(c) was 

improperly applied against them. The district court specifically 

placed on the plaintiffs “the burden of proving the race-based 

motive” and stated that “[i]n the final analysis, the plaintiff must 

show ‘that race was the predominant factor motivating the 
legislature’s decision to place a significant number of voters 

within or without a particular district.”” See J.S. App. 15a 
(quoting Shaw II, 517 U.S. at 905, and Miller, 515 U.S. at 916). 
The district court concluded that, “based on the uncontroverted 

material facts before it,” the General Assembly “utilized race as 

a predominant factor in drawing” District 12. J.A.21a-22a. That 

  

If, instead of granting summary judgment, the district court had 
ruled only on the plaintiffs’ motion for preliminary injunction pending a 

trial, the court would have weighed the probability of plaintiffs’ success on 

the merits, irreparable harm to plaintiffs’ rights, injury to defendants, and 

public interest. See 11A Charles A. Wright, et al., Federal Practice and 
Procedure, Sec. 2948. 

   



25 

conclusion was compelled by all the evidence before the court. 

A. The Shape and Demographics of North Carolina’s 

Twelfth Congressional District Show Unmistakably 

That Race Was the Predominant Motive for Its 

Design. 

The district court, viewing the uncontroverted material 

facts presented by the appellees and recognizing the dangers 

articulated in Shaw I, properly found that “the General Assembly 

utilized race as the predominant factor in drawing the District, 

thus violating the rights to equal protection guaranteed in the 

Constitution to the citizens of District 12.” J.S. App. 22a 
(footnote omitted). In determining that race was “the 

‘predominant’ consideration in drawing the district lines such 

that ‘the legislature subordinate[s] race-neutral districting 

principles . . . to racial considerations’ J.S. App. 16a (quoting 

Miller, 515 U.S. at 916), the district court observed that “the 

legislature disregarded traditional districting criteria such as 

contiguity, geographical integrity, community of interest, and 

compactness in drawing District 12 in North Carolina’s 1997 

plan.” J.S. App. 22a. 

1. Race Dictated the Twelfth District’s Bizarre 

Shape and Lack of Compactness. 

A quick glance at the map of District 12 (see J.S. App. 

15a) reveals that it fails the “eyeball test” and other well- 

recognized objective tests of compactness.* As the district court 

  

**The dispersion measure and perimeter measure of compactness 

developed by Richard Pildes and Richard Niemi in their 1993 Michigan 

Law Review article, Expressive Harms, “Bizarre Districts,” and Voting 

Rights: Evaluating Election-District Appearances After Shaw v. Reno, 92 

Mich. L. Rev. 483, have been much used in Shaw litigation and in striking 
down three racially-gerrymandered Texas districts, this Court noted that  



  

26 

pointed out, 

“[w]hen compared to other previously challenged 

and reconstituted congressional districts in North 

Carolina, Florida, Georgia, Illinois, and Texas, 

District 12 does not fare well. The District’s 

dispersion and perimeter compactness indicators 

(0.109 and 0.041, respectively) are lower than 

those values for North Carolina’s District 1 

(0.317 and 0.107 under the 1997 plan). 

Similarly, the District suffers in comparison to 

Florida’s District 3 (0.136 and 0.05), Georgia’s 

District 2 (0.541 and 0.411) and District 11 

(0.444 and 0.259), Illinois’ District 4 (0.193 and 

0.026), and Texas District 18 (0.335 and 0.151), 

District 29 (0.384 and 0.178), and District 30 

(0.383 and 0.180).” 

J.S. App. 20a-21a. According to Professor Timothy G. 
O’Rourke, “[1]f the 1992 rankings had remained unchanged, the 

new version of the 12th would still stand as the 430th least 

compact district on the dispersion measure and it would rank 
423 on the perimeter measure.” J.A. 249.” Professor Weber, 
who has provided current rankings based on changes made to 

other districts, states that “North Carolina 12 ranks either 430 or 

431 out of 435 in compactness using the dispersion measure” 

and “either 432 or 433 of 435 in compactness using the 

perimeter measure.” J.A. 213. As these numbers make clear, 

“customary and traditional districting practices” have been 

  

they were among the twenty-eight least compact in the nation when these 

measures were applied. See Bush v. Vera, 517 U.S. 952 (1996). 

350f course, since several districts have changed since 1992 as a 
result of post Shaw I litigation, the actual compactness rankings of District 

12 would now rank even lower in any comparison of compactness. 

   



27 

utterly disregarded and District 12 constitutes an “extreme 

instance of gerrymandering.” See Miller, 515 U.S. at 928-29 
(O'Connor, J., concurring). 

The State’s Section 5 submission recites that “geographic 

compactness” was one of five factors emphasized “in locating 

and shaping the new districts.” J.S. at 63a. This assertion is 

misleading and inconsistent with the facts regarding District 12. 

This inconsistency suggests that in the preclearance submission 

State officials sought to conceal the General Assembly’s race- 

based purpose — a concealment which itself provides evidence 

of that purpose. Likewise, making other districts 

“geographically compact” but not doing so for District 12 helps 

prove that this district was different from others — namely, that 

District 12 was the product of a race-based intent. 

In Lawyer, the Court pointed out that the senatorial 

district under attack “is located entirely in the Tampa Bay area, 

has an end-to-end distance no greater than that of most Florida 

Senate districts, and in shape does not stand out as different from 

numerous other Florida House and Senate districts.” 117 S. Ct. 

at 2194-95. Moreover, while that district “crosses a body of 

water and encompasses portions of three counties, evidence 

submitted showed that both features are common characteristics 

of Florida legislative districts, being products of the State’s 

geography and the fact that 40 Senate districts are superimposed 

on 67 counties.” Id. On the other hand, North Carolina’s 

District 12 is not “located entirely” in a single metropolitan area, 

and its shape surely does “stand out as different from” all other 
North Carolina congressional districts. In fact, the only other 

North Carolina districts with irregular boundaries are District 1, 

which is race-based, and those districts which have boundaries 

coinciding with District 12 or District 1. Unlike Lawyer, where 

the senatorial district under attack was on both sides of Tampa 

Bay, the bizarreness of District 12 is not a “product” of North  



  

28 

Carolina’s geography; nor does it result from the fact that twelve 

congressional districts are “superimposed” on one hundred 

counties. 

As this Court explained in Miller, “[s]hape 1s relevant 

not because bizarreness is a necessary element of the 

constitutional wrong or a threshold requirement of proof, but 

because it may be persuasive circumstantial evidence that race 

for its own sake, and not other districting principles, was the 

legislature’s dominant and controlling rationale in drawing its 

district lines.” 515 U.S. at 913; see also Karcher v. Daggett, 
462 U.S. 725, 755 (1983) (“dramatically irregular shapes may 
have sufficient probative force to call for an explanation”). In 

this case, the only “explanation” for the shape and demographics 

of District 12 is that race was used for its own sake. 

The maps and data presented to the district court showed 

that District 12 meanders though six counties, splitting each 

along racial lines to pick up virtually every precinct in those 

counties with a black population over forty percent. See J.A. 

183. Seventy-five percent of the total population of District 12 

comes from parts of Mecklenburg, Forsyth and Guilford 

Counties which are majority black. See J.A. 176. These three 

population centers are also at the extremes of the District — 

Mecklenburg at the southern and Forsyth and Guilford at the 

northern. Forsyth County is divided so that 72.9 percent of the 

total population allocated to District 12 is African-American, 

while only 11.1 percent of the total population assigned to 

District 5 is African-American. See id. In Mecklenburg county, 

51.9 percent of the total population allocated to District 12 is 

African-American, while only 7.2 percent of the total population 
assigned to District 9 is African-American. See id. Finally, in 

Guilford County, 51.5 percent of the total population allocated 

to District 12 is African-American, while only 10.2 percent of 

the total population assigned to adjacent District 9 is African- 

   



29 

American. See J.A. 183. For any resident of those three 

counties, the inevitable perception would be that District 12 is 
race-based. 

In Vera, when describing the shape of a section of a 

district held to be unconstitutional, this Court stated that, “the 

northernmost hook of the district, where it ventures into Collin 

County, is tailored perfectly to maximize minority population.” 

517 U.S. at 971. This description aptly describes how District 
12 slithers into Forsyth County to extract all precincts but one 

with an African-American population in excess of forty percent. 

See map, Exhibit O. From Forsyth County, only two precincts 

with an African-American population of less than forty percent 
were included in District 12; and those two precincts were at the 

gateway for District 12’s entry into Forsyth from the south. See 

map, Exhibit O. 

According to the State’s preclearance submission, 

“functional compactness (grouping together citizens of like 

interest and needs)” was another of five factors employed in 

shaping the districts. In this context, “functional compactness” 

1s apparently another name for “community of interest.” It calls 

to mind this Court’s observation in Miller: “Nor can the State’s 

districting legislation be rescued by mere recitation of purported 

communities of interest.” 515 U.S. at 919. The legislative 

history of the 1997 plan gives no specifics as to any real 

communities of interest present in District 12. The fact that 

many residents of District 12 live in cities in the northemn part of 

the state and many others live in a city in the southern part of the 

State does not give rise to any “community of interest” — 

especially since the first group is in the Piedmont Triad 

metropolitan area and the second is in the Charlotte metropolitan 

area. Once again the State’s concealment of motive by citing a 

non-existent “factor” is an admission by conduct that helps 
prove the plaintiffs’ case.  



  

30 

2 Contiguity Was Subordinated to Racial 

Considerations. 

A narrow land bridge, located in the south-central 

portion of Mecklenburg County, prevents District 12 from 

completely dividing both Mecklenburg County and adjacent 

District 9. This bridge was created by splitting Precinct 77 in 

such a way that a section less than two miles wide and 

containing only one of the precinct’s 3,462 residents was placed 

outside District 12. Thus, a single person provides a “human 
link” so that District 12 does not sever adjacent District 9 and 

Mecklenburg County into two non-contiguous parts.*® See J.A. 
250.” Moreover, in several areas District 12 narrows to one 
precinct wide as it winds through counties, cities and towns to 

achieve its race-based goal. See map, Exhibit M. These narrow 

corridors enable the district to stretch from Charlotte to 
Greensboro but minimize the number of “filler” people in 
between. 

3. Political Subdivisions and Actual 

Communities of Interest Were Subordinated 

to Racial Considerations. 

Despite their claimed goal of “avoidance of the division 

of counties and precincts,” J.S. App. 63a, the General Assembly 

demonstrated little respect for political subdivisions in creating 

District 12 and often divided them on the basis of race. The 

district court described how counties were split in the design of 

District 12: 

  

Since Precinct 77 contains a substantial percentage of African- 
Americans, the legislature obviously did not want to put the whole precinct 

into District 9. 

"The one person in Precinct 77 who was placed in District 9 

cannot cast a secret ballot in a congressional election. 

   



31 

District 12 is composed of six counties, all of 
them split in the 1997 plan. The racial 

composition of the parts of the six sub-divided 

counties assigned to District 12 include three 

with parts over 50 percent African-American, 

and three in which the African-American 

percentage 1s under 50 percent. However, almost 

75 percent of the total population in District 12 

comes from the three county parts which are 

majority African-American in population: 

Mecklenburg, Forsyth, and Guilford counties. 

The other three county parts (Davidson, Iredell, 

and Rowan) have narrow corridors which pick 

up as many African-Americans as are needed for 

the district to reach its ideal size. 

Where Forsyth County was split, 72.9 

percent of the total population of Forsyth County 

allocated to District 12 is African-American, 

while only 11.1 percent of its total population 

assigned to neighboring District 5 is African- 

American. Similarly, Mecklenburg County is 

split so 51.9 percent of its total population 

allocated to District 12 is African-American, 

while only 7.2 percent of the total population 

assigned to adjoining District 9 is African- 

American. 

J.S. App. 6a-7a. District 12 is the only district in North Carolina 

with no intact counties. As Professor Weber stated in his 

affidavit, “[nJo single district in the country is like North 

Carolina 12 in splitting as many as six counties and subdividing 
100 percent of them.” J.A. 209. As the district court noted, 
cities, like counties, were split along racial lines in creating  



  

32 

District 12. See J.S.App. at 7a. According to Professor Weber, 

9 of 13 cities or towns — including the four largest cities — were 
split along racial lines to create District 12. See J.A. 184. 

B. District 12 Cannot Be Justified By Means of a 

Spurious Claim that It Was Created with a Political, 

Rather than Racial, Motive. 

Question 2 in State appellants’ brief implies that the 

district court improperly relied on “isolated and sporadic party 

registration data” when it should have focused on “actual voting 

results.” However, the district court can not be criticized for 

closely scrutinizing voter registration data because, prior to the 

March 31 hearing, the defendants had represented to the court 
that “[t]he leaders of the House and Senate Committee also had 

available, and used, voting behavior information consisting of 

precinct level voter registration data and the results of the 1990 

U.S. Senate election and the 1988 Lt. Governor and Court of 
Appeals elections.” Defendants’ Brief in Opposition to 

Plaintiffs’ Motion for Summary Judgment and in Support of 

Their Cross-Motion for Summary Judgment 7 (emphasis added). 

This voter registration data was readily available to any member 

of the General Assembly through its public access computer; 

moreover, “redistricting legislatures will . . . almost always be 

aware of racial demographics.” See Miller, 515 U.S. at 916. 

Instead of being “sporadic and isolated,” the registration 

data was quite comprehensive and demonstrated conclusively 
that in Guilford, Forsyth, and Mecklenburg counties many 

precincts adjacent to District 12 had high Democratic 

registration but low percentages of African-Americans and that 
the exclusion of these precincts from District 12 was clearly 

attributable to race — not party. As the district court explained: 

the legislature did not simply create a majority- 

   



33 

Democratic district amidst surrounding 

Republican precincts. For example, around the 
Southwest edge of District 12 (in Mecklenburg 

County), the legislature included within the 

district’s borders several precincts with racial 
compositions of 40 to 100 percent African- 

American; while excluding from the district 

voting precincts with less than 35 percent 

African-American population, but heavily 

Democratic voting registrations. 

J.S.App. at 8a. This pattern was repeated in Forsyth and 

Guilford Counties. Id. These and other undisputed facts 

convinced the district court that “District 12 was drawn to 
collect precincts with high racial identification rather than 

political identification.” Id. at 21a. 

In Vera, when reviewing Houston districts held 

unconstitutional, this Court stated that the “district lines 

correlate almost perfectly with race, while both districts are 

similarly solidly Democratic.” 517 U.S. at 975. North 

Carolina’s registration data shows that the lines dividing 

precincts of District 12 from the previously mentioned precincts 

of other districts “correlate almost perfectly with race;” however, 

both the black precincts within District 12 and the white 

precincts adjacent to District 12 are “solidly Democratic.” Asin 

Texas, this correlation suggests that race was the predominant 

motive for the district boundaries, but that appellants attempted 
to conceal this motive by referring to party data. 

No one questions that for several decades a very high 

percentage of African-Americans in North Carolina have 

registered as Democrats. In the trial of Shaw v. Hunt, Melvin 

Watt, an African-American who has represented District 12 in 

Congress since 1992, testified that “95% or higher of the  



  

34 

African-Americans registered to vote in North Carolina are 
registered as Democrats.” J.A. 158. Likewise, Gerry Cohen, the 

staff member of the General Assembly who played the greatest 

role in redistricting for the General Assembly, testified that in 

“urban areas” the percentage was 95 percent, but in “rural areas” 
the percentage was 97 to 98 percent. Id. Under these 
circumstances, legislators can easily claim that any district with 

a high percentage of blacks was drawn for “political” purposes 

to obtain Democratic votes. In his affidavit, Dr. Peterson — 

although admitting the high correlation of District 12’s 

boundaries with race — emphasizes instead the correlation of its 

boundaries with Democratic party registration and Democratic 

performance. Because typically the number of black registered 
voters is exceeded by the number of voters registered as 

Democrats, he reasons that District 12 was designed with a 

political, rather than a racial, motive. If, however, more than 

95% of the black voters have registered as Democrats, the 

number of registered Democrats in a precinct will exceed the 

number of registered blacks — unless white registered voters 

have registered almost exclusively as Republicans or 

independents. Thus, the party correlation discussed by Dr. 

Peterson is misleading and has no significance. 

In light of the district’s history, it seems obvious that the 

legislators were assuming that to concentrate large numbers of 

blacks in the “new” District 12 would guarantee that a black 

candidate who ran for office would receive a majority in the 
Democratic primary because of the large number of black voters 

registered as Democrats. Their second assumption was that the 
black Democratic nominee then would be elected because he or 

she had a solid core of support based on the racial loyalty of 

fellow African-Americans and the party loyalty of some white 

Democrats. In making these two assumptions the General 

Assembly relied on “racial stereotypes” and treated a 
“significant number” of black voters as “mere racial statistics.” 

   



35 

Thereby they violated the precepts of Shaw I. 

Appellants complain that the district court should have 
used “actual election results” instead of “party registration 

data.’®® The General Assembly had available the “actual 

election results” of three statewide elections; and even though 

State appellants intimate that additional “results” should have 

been reviewed by the district court, they have given no 

indication what those result are or how they should be analyzed. 

Moreover, the court had before it evidence of “actual election 

results” with exhibits® that presented detailed statistical 
information concerning nine precincts in Mecklenburg, Forsyth 

and Guilford counties — including, but not limited to, party 

affiliation, race, and election results of the 1990 Senatorial race, 

the 1988 race for lieutenant governor and one 1988 Court of 

Appeals race. All these precincts are contiguous to District 12; 

and eight are cited by the district court as examples of precincts 

that should have been included within District 12, if the General 

Assembly truly were attempting to create a “Democratic island 
in a largely Republican sea.” All nine precincts have an 

African-American population below 35% and a Democratic 

registration rate above 50%. Most of these nine precincts, 

  

#Specifically, State appellants contend that the 

district court focused on a handful of precincts that 

border District 12, but were not included in the district 
despite having Democratic voter-registration majorities, 

even though the registered Democrats in these districts 
(sic) consistently voted Republican. 

St. App. Br. 29 (emphasis added). 

¥See Exhibits A through I of the exhibits to the Affidavit of 

Martin B. McGee. 

“This is the phrase used by Senator Cooper in his affidavit to 
describe the purpose of District 12. J.S. App. 77a.  



  

36 

however, have a minority population under twenty percent and 

a Democratic registration rate above sixty percent. Using the 

election results of the three political races listed above in these 
nine precincts, there are an aggregate of twenty-seven separate 

election results by which one could classify these precincts as 

either Democratic or Republican. The Democratic candidate 

won in 24 out of 27 contests. Moreover, in many instances the 

percentage of votes the Democratic candidate received in a 

precinct was higher than the percentage of registered Democrats 

in that precinct. 

The State appellants argue that the district court 

“concentrated on only 32 excluded precincts with Democratic 

voter-registration majorities” instead of focusing on the district 

as a whole. St. App. Br. 35. As has just been pointed out, the 

court had before it information concerning nine precincts 
adjacent to District 12 in which the Democratic candidate won 

in 24 out of 27 contests, but had a black population of less than 

35%. Within these precincts reside a total of 31,130 persons 
whose precinct was assigned to a district other than District 12 

for predominantly racial purposes. That purpose was to permit 

the inclusion within District 12 of other precincts having a 

higher percentage of African-Americans and yet to comply with 

the constitutional requirement of equipopulousness. This 

movement of more than 31,000 persons “without” District 12 

and the movement of a like number “within” District 12, 

constitutes the placement of “a significant number of voters” in 

which “race was the predominant factor” and is itself enough to 
invalidate the district. See Miller, 515 U.S. at 917. 

State appellants also fail to recognize that the “results” 
of the three elections as to which the General Assembly was 

provided information reveal that race was used as a proxy for 

achieving the intended result. Cf. Vera, 517 U.S. at 969. They 

show that in the 1990 election in which Harvey Gantt, an 

   



37 

African-American, ran as the Democratic nominee for the Senate 

against well-known three-term incumbent Jesse Helms, Gantt 

obtained 66.49% of the vote in the 1997 plan’s District 12. On 
the other hand, in 1988, when Tony Rand, a white Democrat, ran 

for Lt. Governor against white Republican Jim Gardner — neither 

being an incumbent — Rand received only 62.08% of the vote in 

District 12. In the 1988 State-wide race for the Court of 

Appeals, John Lewis, the white Democratic candidate, received 

a majority of only 61.54% in District 12 against the white 

Republican candidate. These results strongly indicate that — just 

as the registration data suggests — the “new” District 12 would 

be safer for an African-American Democratic candidate than for 
a white Democratic candidate. It would be especially safe for 
incumbent Melvin Watt, an African-American who had already 

been elected three times to Congress from the “old” racially 

gerrymandered Twelfth District. 

At the March 31 hearing, appellees submitted that race 

was the predominant motive not only for District 12 but also for 
District 1. The shape and demographics of District 1 provide 

strong support for that contention. Moreover, the legislative 

history of District 1 indicates that its distorted shape reflects the 
purpose to create a majority-black district at all costs in order to 

obtain preclearance and insure the reelection of Representative 

Eva Clayton, an African-American who had been elected from 

District 1 under the 1992 plan. Nevertheless, the district court 

declined to enter summary judgment for the plaintiffs as to 

District 1. Judge Ervin’s dissent finds an inconsistency between 

the district court’s invalidating District 12 and not doing so as to 

District 1. Whatever the reason for the district court’s charitable 

treatment of District1,*' the failure to enter summary judgment 

  

“The district court may have hoped that the legislature, when 
drawing a new plan, would note some of the concerns expressed by the 
court as to District 1. If so, its optimism was ill-founded, for the 1998 plan  



  

38 

as to the district is not material evidence of the legislature’s 
motive in drawing District 12. 

C. The Affidavits of Legislators of McMahan and 

Cooper Do Not Create Any Material Issue of Fact. 

In their brief, State appellants rely on the affidavits of 
two legislators, Senator Cooper and Representative McMahan, 

as grounds for setting aside the summary judgment.** This 

reliance is inconsistent with the contention they made to the 

district court that a legislator’s affidavit 1s incompetent to show 

legislative intent.” Even assuming arguendo that the affidavits 

  

made no change whatsoever in District 1. Had the court determined on 

motion for summary judgment that District 1 was race-based, an issue of 

strict scrutiny might have arisen. The State’s preclearance submission was 

perhaps seeking to anticipate that issue when it noted that only in 

northeastern North Carolina could a geographically compact majority-black 

district be created. Professor O’Rourke’s affidavit questions whether such 
a district can be created anywhere in North Carolina; and after six years of 
litigation concerning North Carolina’s racial gerrymanders, appellees are 

still waiting for appellants to produce a map of a majority-black district 

anywhere in North Carolina that would be “geographically compact.” 

“2See question 1, St. App. Br. i. 

“In a brief before the March 31, 1998 hearing, appellants 
contended that the affidavit of Representative John Weatherly, who served 
in the General Assembly when the 1997 plan was drawn, was inadmissible: 

to prove the legislature’s motivation in enacting the 1997 

Congressional plan and must be struck. It is a long 

standing rule of law in North Carolina that the affidavit 

or testimony of a member of the legislature may not be 

relied upon to prove legislative intent. D & W, Inc. v. 

City of Charlotte, 268 N.C. 577, 581-82, 151 S.E.2d 241, 

244 (1966). A statute “”is an act of the legislature as an 

organized body” and it “expresses the collective will of 

that body” so that the understanding of a single member 

  

   



  

39 

of these two legislators are competent,* they give no insight into 
the “collective will” of the General Assembly. Indeed, only 

statements made by legislators during official legislative 

sessions Or committee meetings merit any consideration in 

determining the motive for the redistricting plan. 

Addressing the North Carolina House of Representatives 

on March 26, 1997, Representative McMahan, its Redistricting 

Committee Chairman, explained that the plan was “based on 

geographic compactness, racial fairness, population that is 

homogeneously compatible, incumbency friendly, and would 

divide the fewest number of counties and precincts as possible. 
The Current Plan divides 45 counties and 80 precincts — new 

Plan divides 22 counties and only 2 precincts.” J.A. 120. He 

did not mention that, just as the “old” District 12 split all 10 of 

its counties, the “new” District 12 split six out of six counties, 

or that District 12 would still be almost at the bottom of the 

  

may not be accepted by the Court to ascertain the 
legislative intent. Id. See also Milk Comm’n v. National 
Food Stores, 270 N.C. 323, 332-33, 154 S.E.2d 548, 555 
(1967) (testimony or affidavits of members of the 

legislature are not competent evidence of legislative 

intent and must be disregarded). Because North Carolina 

law provides that the affidavit of an individual member 
of the General Assembly is inadmissible and cannot be 

relied upon to prove legislative intent, the affidavit of 

Representative Weatherly attempting to establish the 
legislature’s motive in drawing Districts 1 and 12 must 

be struck. Empire Distribs. of N.C. v. Schieffelin & Co., 

679 F. Supp. 541 (W.D.N.C. 1987). 

J.A. 145-46. 

**There is authority that individual legislators are incompetent to 

testify regarding the intent of the legislative body. See, e.g., Bread Political 

Action Comm. v. Fed. Election Comm., 455 U.S. 577, 582 n.3 (1982); 

Regional Rail Reorganization Act Cases, 419 U.S. 102, 132 (1974).  



  

40 

nation’s districts in “geographical compactness.” As to District 

12, McMahan explained that because it was no longer majority- 

minority, its shape was 1mrelevant in deciding its 

constitutionality; that the “[p]opulation in 12 has homogeneous 

interest — comprised of many citizens living in an urban setting”; 

and that it was “[d]rawn to protect the Democratic incumbent.” 

JA. 121, 

In presenting the redistricting plan to the Senate on 

March 27, 1997, Senator Cooper, Chair of the Redistricting 

Committee, noted that the 1992 plan was “a geographic mess” 

and from maps on the desks of his fellow senators, they “can see 
how difficult it is for people to know in which congressional 

district they reside.” He contended that the new plan “provides 
for geographical compactness, provides for consideration of 

community of interest, and provides for fair partisan balance.” 
JLA. 130-31. Although Cooper thought that “all of the 

congressional districts would be competitive,” he predicted that 
the plan “would elect six Democrats and six Republicans. We 

said from the beginning in the Senate that in 1996 the people 

made a decision to elect six members of Congress from the 

Democratic party and six members of Congress from the 

Republican party and we should not use court-ordered 

redistricting to alter that result.” J.A. 131. After expressing his 

view that the “shape test” would not apply to District 12 because 

it was no longer majority-black, he observed that the district now 

was “much more compact.” See J.A. 132-33. Senator Cooper 

commented that “we have preserved the current partisan nature 

of each of the districts and for that reason I think all of the 

incumbents are satisfied.” J.A. 133. Understandably, incumbent 

Representative Melvin Watt would be “satisfied.” The shape of 
District 12 virtually guaranteed that he would not face any 

opponents in the primary and that he would have a substantial 

edge in the general election. Senator Cooper added that “this is 
not an incumbent protection plan. This is a plan that attempts to 

   



41 

preserve the partisan nature of each of the twelve districts as 
they now exist.” Id. This comment seems intended to obfuscate 
the fact that, in the context of a six-to-six partisan balance in 
North Carolina’s congressional districts, “to preserve the 
partisan nature” — or “fair partisan balance,” see J.A. 131 — 
equates to “incumbent protection.” 

The language used by Representative McMahan and 
Senator Cooper on the floor of the General Assembly does not 
contradict the evidence offered by plaintiffs which clearly 
established the racial purpose for creating District 12. 

Representative McMahan specifically stated that this district was 

drawn to protect the Democratic incumbent. J.A. 121. Since 

this incumbent was an African-American who had been elected 

three times from an unconstitutional race-based district and the 

General Assembly attempted to protect that incumbent by 

creating an irregularly shaped 46.47% African-American district, 

McMahan’s statements to his fellow legislators actually confirm 

plaintiffs’ case. The same is true of Senator Cooper’s statements 
— although he, unlike Representative McMahan, is an attorney, 

and he used more artful language both on the floor and in his 

affidavit. 

The references to geographic compactness in the 

statements by McMahan and Cooper on the floor intimated that 

this compactness had been achieved. Subsequently, the State’s 

Section 5 submission also indicated that geographic 

compactness was a feature of the plan and did not mention that 

North Carolina’s District 12 is still one of the least compact in 
the United States. These misleading statements constitute 

further admissions by conduct, which are evidence of the intent 

to mislead others as to the redistricting plan’s purpose and to 

disguise the racial motive. 

Especially revealing of legislative intent 1s the  



  

42 

preclearance submission’s account of events that preceded 
consideration of the 1997 plan by the House of Representatives. 

Two prominent African-American legislators — Representatives 

Michaux and Fitch — proposed three alternative redistricting 

plans, which, in addition to a majority-black district in 

northeastern North Carolina, contained three “minority influence 

districts.” In discussing the House’s rejection of these proposals, 

the State’s own Section 5 submission states: 

all three plans would seriously weaken the ability 

of the African-American incumbent in District 

12 (Congressman Watt) to win re-election. The 

African-American percentage in District 12 is 

only 37.66 percent in Plans B and C and 37.44 

percent in Plan A --- approximately nine percent 

lower than the African-American percentage of 

District 12 in the enacted plan (46.67%). 

J.A. 94-95. Significantly, this discussion is in terms of race — 

not political party.” The situation is remarkably similar to that 

  

“There is also direct evidence of legislative intent as a result of 
similar conversations and debates in the General Assembly concerning 

District 12 in the State’s Section 5 submission — which was filed by the 

State appellants in the district court. For example, Representative 

McMahan explained his negotiations with Senator Cooper concerning 

various proposed plans for District 12 in racial — not political — terms when 

he told his fellow legislators that “we’ve actually agreed to increase the 

percent of minorities in District 12 to 46% and are now basically following 

the Senate plan on District 1 and 12.” See North Carolina Section 5 

Submission 1997 Congressional Redistricting Plan, Vol. 5, Attachment 

97C-28F(3) at 3. Linwood Jones, a House staff member working on the 

1997 plan, explained a detour into Statesville in racial — not political — 

terms when he stated: “In Iredell we have gone into Statesville, which I 

believed picked up the minority percentage of District 12 — we came a little 

bit more out of southern Rowan when we did that.” Id., Attachment 97C- 

28F-4E(4) at 3-4. Representative McMahan explained a minority 

candidate’s prospects in District 12 in racial — not political — terms when he 

   



43 

in Vera, where the legislature’s rejection of a more compact 

district was asserted to be for political reasons at trial, but the 

explanation for the rejection of the offered plan in the State’s 

Section 5 submission was “in exclusively racial terms.” See 517 

U.S. at 969. The proper inference is that inclusion of a high 

percentage of African-Americans in the district was important in 

and of itself. In this context the African-Americans included in 

District 12 became “mere racial statistics.” Id at 985. 

Moreover, the “approximately nine percent” to which the 

submission refers equates to 50,000 African-Americans — which 

1s a “significant number.” 

D. The District Court Had No Occasion To Discuss 

Strict Scrutiny. 

Nothing in State appellants’ Jurisdictional Statement 
presented any claim that, after determining that District 12 was 

race-based, the district court should have provided them an 

opportunity to prove that the district could survive strict 

scrutiny. Likewise, the State appellants’ brief on the merits 

makes no such contention. The reason for this omission is 

obvious. Having asserted that no racial motive existed for the 

design of District 12, appellants could hardly claim that its 

strange shape reflected a “compelling governmental interest” or 

  

stated: “As far as District 12 —1 believe, again, that Congressman Mel Watt 

is very comfortable and anyone else that might choose as a minority to run 

in that district should be very, very comfortable — when there is 46.5% of 

the people in that District are also minorities — that they could win.” See 

Id., Attachment 97C-28F(1) at 16. Finally, in summarizing the proposed 

plan to the House Redistricting Committee, Representative McMahan 

stated: “I am confident that we have done our best - our dead level best - to 

draw two districts that are fair racially and do have one of them the majority 

of the population and other one over 46%, and that’s the very best we could 

do on both sides, and we look at this very, very closely — obviously — and 

the very best we could do and yet create Districts that we felt would be 

acceptable to the Department of Justice and to the Court.” Id. at 23.  



  

44 

was the product of “narrow tailoring.” Indeed, in claiming that 

the redistricting plan was primarily for protecting incumbents 

and maintaining partisan balance, the appellants have made clear 

that no grounds exist for finding that District 12 could survive 

strict scrutiny. By their own implied admissions, appellants 

removed from the case any question as to whether District 12 — 

having been found race-based — could then pass the test of strict 
scrutiny. 

Furthermore, once plaintiffs proved the predominant 

racial motive for District 12, the defendants had the burden of 

producing evidence — and probably the burden of persuasion as 
well — on issues of “compelling interest” and “narrow tailoring.” 

They produced no such evidence at the hearing, and requested 

no findings thereon. Appellees question whether the intervenor- 

appellants or amici have any standing now to complain — after 

a hearing to which they were not parties — that the district court’s 

Memorandum Opinion made no explicit finding that District 12 

failed strict scrutiny. In any event, nothing in this record even 

remotely suggests that the evidence before the court raised any 

issue of fact or law as to strict scrutiny.*®* The possible 

“compelling governmental interests” which are suggested by the 

intervenor-appellants’ brief at 40-41 and by the Lawyers’ 

Committee for Civil Rights Under Law amicus brief at 23-26 are 

too unrelated to the facts of this case to merit serious 

consideration. For example, the suggestion that a Section 2 

violation might have resulted if the African-Americans in 

Guilford and Forsyth counties had not been linked with those in 

Mecklenburg County is implausible in view of the distances and 
different metropolitan areas involved. Furthermore, like the 

argument made in this Court concerning District 12’s 
predecessor, any argument that the “new” District 12 is 

  

“In his dissent, Judge Ervin does not even intimate that District 12, 

if race-based, might survive strict scrutiny. 

   



45 

“narrowly tailored” would be “singularly unpersuasive.” See 
Shaw II, 517 U.S. at 917. 

E. The Summary Judgment Also Was Proper on Other 

Grounds. 

The shape and demographics of the 1992 redistricting 

plan reflected clearly its dominant race-based purpose. District 

12 1n that plan obviously was designed to assure the election of 

an African-American to Congress, just as was District 1. The 

“packing” of blacks into these two districts had the effect of 

“bleaching” the other 10 districts and assuring that voters in 
those districts would elect whites to represent them in Congress. 

The unspoken assumption was that the two African-American 

Representatives would represent the blacks of the State and the 
other ten Representatives would represent the whites. See Shaw 
I, 509 U.S. at 648. In substance, the plan had a racial quota 
based on North Carolina’s 22% African-American population. 

After the unconstitutional 1992 plan — which was used 

for three elections with the anticipated electoral results — had 

been held unconstitutional, the General Assembly was given the 

opportunity to prepare a remedial plan.*’” That plan supposedly 

was to remedy the constitutional defects of its predecessor. 

However, a simple comparison of the maps showing the 1992 

and 1997 plans, J.A. 59a and 61a, reveals that the new plan is 

not an adequate remedy. Especially with respect to District 12, 

the resemblance of the “new” to the “old” is too great to be 

  

“In this instance, the remedial plan was prepared after a judicial 
holding that the existing plan was unconstitutional. In Lawyer, there had 

been no judicial determination that the plan being replaced was 

unconstitutional.  



  

46 

permitted.*® The plan creates a district in which 46.67% of the 
population is African-American — even though only 22% of the 

total population of North Carolina is African-American and they 

are “relatively dispersed.” Shaw I, 517 U.S. at 634. District 12 

continues to violate traditional districting principles — such as 

geographical compactness and avoidance of divided political 

subdivisions. There 1s no “community of interest” between 

residents of Charlotte — at the southern extreme of the district — 

and those in Winston-Salem, Greensboro and High Point — at the 

northern extreme of the district. Likewise, there is no 

“community of interest” between residents of these cities and 

residents of the rural areas that lie between these cities. 

It is well recognized that “the historical background” of 

a legislative decision can be a helpful “evidentiary source” as to 

the purposes of the decision. See Arlington Heights, 429 U.S. at 
267. The history of the creation of the “old” District 12 and the 

statements made in the General Assembly concerning the 

“incumbent protection” goal of the “new” District 12 generate 
the presumption that in the 1997 plan this district was formed 

with a specific purpose of ensuring that an African-American 

would be elected to Congress. More specifically, the purpose 

was to ensure that the voters in this district would reelect to 

Congress Melvin Watt, an African-American who for three 

terms was elected from the preceding flagrantly gerrymandered 

District 12.* Under these circumstances, the district court could 

  

“Representative Michaux, in purposing an alternative plan, 

observed, “all you have done with the 12 District in this bill is knock sixty 

miles off of it.” North Carolina’s Section 5 Submission 1997 

Congressional Redistricting Plan, Vol. 5, Attachment 97C-28F-4F(1) at 12. 

“How Representative Watt has performed his duties in Congress 

during his three terms is irrelevant in the present context and is for voters 
to decide when and if he runs for office from a properly drawn district. The 

issue instead concerns the means used to place him, and keep him, in office. 

   



47 

not properly allow the 1997 plan to be used. Even if the court 
had not found specifically — on the basis of overwhelming and 
uncontroverted evidence — that the 1997 plan was race-based, 
the court had a duty to set it aside. Otherwise, the judicial 
decision declaring the 1992 plan unconstitutional would become 
only an empty gesture lacking real effect. Obviously this would 
encourage future evasions of Shaw v. Reno by North Carolina — 
as well as by other states when the next round of redistricting 
occurs — and 1t would add to voters’ cynicism about both the 
legislative process and the judicial process. 

Representative McMahan and Senator Cooper, the 

Chairs of the General Assembly’s redistricting committees, 
spoke to their fellow legislators about the goal of preserving the 
“cores” of the 1992 districts. Retaining the “core” of a district 
like District 12 that was created with a predominant racial 
motive is irreconcilable with remedying the replaced district’s 
violation of equal protection rights. The common sense 
rationale for the “fruit of the poisonous tree” doctrine — a 
doctrine which this Court has used to protect due process rights 
in criminal cases — is equally applicable here and would fully 
justify the entry of summary judgment against District 12, with 

or without a specific finding as to the race-based motive for its 
design. As this Court has recognized in Shaw and its successor 

cases, this is one area in which “appearances” are important, 

because of the perceptions they generate that the legislature is 

using race as a basis for awarding political offices. Until and 

unless traditional districting principles are used in redrawing 

District 12, its “appearance” will continue to generate the 

perception that it is predominantly race-based. This perception 

in turn will generate further public distrust of the elections and 

a lack of interest in an electoral process in which the results 
appear to be predetermined. Therefore, appellees submit that as 

a threshold test for approval of a remedial plan, the plan must 

comply with traditional redistricting principles — regardless of  



  

43 

motive of the legislature. This would facilitate the judicial 
review of remedial plans and give legislators the guidance which 

the State appellants have repeatedly claimed to be seeking. The 

suggested test 1s not unduly burdensome for, as Justice 

O’Connor has pointed out, “legislators and district courts 

nationwide” have already “reembraced the traditional districting 

practices that were almost universally followed before the 1990 

census.” See Vera, 517 U.S. at 985. The General Assembly 

deserves no reward for its failure to understand the clear 

message of Shaw v. Reno and for lagging behind in returning to 

“traditional districting practices.” 

The legislative history makes clear that District 12 

preserved the “core” of an unconstitutional district. Moreover, 

it violated traditional districting principles and thereby 

perpetuated the “appearance” of a quota system for 
representation in Congress. District 12 is the “fruit” of the 

violations of equal protection in the 1992 plan, rather than a 

remedy for its constitutional defects. For these reasons, the 

district court could have properly entered summary judgment 

without ever engaging in its painstaking examination of the 

General Assembly’s race-based motive. 

CONCLUSION 

The evidence before the district court was overwhelming 

and undisputed. The court properly determined that the material 

facts were uncontroverted and that no issue of fact existed as to 
the General Assembly’s predominant racial motive in 

configuring District 12. Neither at the March 31 hearing nor on 
appeal have the State appellants claimed that District 12 could 

withstand strict scrutiny; and their own evidence establishes 

conclusively that no “compelling governmental interest” dictated 
the drawing of this misshaped district. Moreover, the General 

Assembly’s retention of the “core” of the preceding racially 

   



49 

gerrymandered District 12 and its continued rejection of 

traditional districting principles in configuring the “new” 

District 12 required the district court to enter summary judgment 

enjoining use of the 1997 redistricting plan.’® Therefore, the 
summary judgment entered by the district court was not in error 

and should be affirmed. 

Respectfully submitted, 

Robinson O. Everett* 

Everett & Everett 

N.C. State Bar No. 1385 

P.O. Box 586 

Durham, NC 27702 

Telephone: (919) 682-5691 

Martin B. McGee 

Williams, Boger, Grady, 

Davis & Tuttle, P.A. 

N.C. State Bar No. 22198 

Concord, NC 28026-0810 

Telephone: (704) 782-1173 

*Counsel of Record 

December 8, 1998 

  

Granting summary judgment in this case — a case in which a 

remedial plan was enacted after this Court had found the earlier plan to be 

unconstitutional — is even more appropriate than the granting of the 

summary judgment in Diaz v. Silver, 978 F.Supp. 96 (E.D.N.Y. 1997), aff'd 

118 S.Ct. 36 (1997).