Shaw v Hunt Motion to Dismiss or Affrim

    Nos. 94-923, -924 

In the
Supreme Court of tfjc Unttrb States;

October T erm , 1994

RUTH O. SHAW, et a l,

JAMES ARTHUR "ART" POPE, et al,

Appellants,

Appeal from the United States District Court for the 
Eastern District of North Carolina, Raleigh Division

MOTION TO DISMISS OR AFFIRM 
OF APPELLEES RALPH GINGLES, et al.

v.

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

RALPH GINGLES, et al,

Appellees.

Elaine R. Jones 
Director-Counsel

Anita S. Hodgkiss 
Counsel o f Record 
Adam Stein 
James E. Ferguson 
Ferguson, Stein, Wallas, 
Adkins, Gresham & 
Sumter, P.A.

700 E. Stonewall, Ste. 730 
Charlotte, NC 28202 
(704) 375-8461

Theodore M. Shaw 
Norman J. Chachkin 
Jacqueline A. Berrien 
NAACP Legal Defense & 
Educational Fund, Inc. 

99 Hudson Street, 16th fl. 
New York, NY 10013 
(212) 219-1900

Attorneys for Appellees Ralph Gingles, et al.



1

QUESTIONS PRESENTED

Intervenor-appeUees Ralph Gingles, et al. do not 
agree that the broad and abstract questions described in 
the Jurisdictional Statements (at i) are presented to this 
Court in this case. Rather, the issues that the Court 
could decide (if it were to note jurisdiction) are framed by 
the extensive, specific, and amply supported factual find­
ings made below. On this record, the only questions that 
would arise on appeal are:

1. Are the findings of fact of the district court 
clearly erroneous?

2. Do the appellants, who failed to present 
evidence sufficient to demonstrate that they 
suffered a concrete, personal injury as a 
result of the enactment of the challenged 
districting plan, have standing to bring this 
action based upon their mere assertion of 
abstract, subjectively perceived, stigmatic 
harm?

3. Did the district court err in holding that 
appellants had met their burden under 
Shaw v. Reno to establish that the chal­
lenged districting plan should be subject to 
strict scrutiny?



TABLE OF CONTENTS

Questions Presented..........................................  i

Table of A uthorities........................      iii

Note on Citations...................................................... .. . . iv

MOTION TO DISMISS OR AFFIRM . . . . . . _____ 1

Statement of the C a se ......................................................   2

Argument............................................................................... 3

I. The District Court Correctly 
Resolved the Factual Issues
in this Case .............................................................. 4

II. The Other Legal Issues Advanced 
by Appellants Are Insubstantial
on this Record ....................................................  17

III. The Appellants Failed to Demon­
strate as a Matter of Fact that 
They Were Personally Injured by
the Disputed Districting P lan ...........................  22

IV. The Appellants Failed to Meet 
their Threshold Burden under this
Court’s Decision in Shaw v. R en o ....................  27

ii

Page

Conclusion 30



Ill

Table of Authorities

Cases:

Allen v. Wright, 468 U.S. 737
(1984) ......................................................  25, 26, 27

Anderson v. Bessemer City, 470 U.S.
564 (1985) ............................................................. 5

City of Rome v. United States, 446
U.S. 156 (1980)......................................................... 5

Diamond v. Charles, 476 U.S. 54
(1986) ...........................................................  26, 27

Gomillion v. Lightfoot, 364 U.S.
339 (1960) ...........................................................  28

Lujan v. Defenders of Wildlife, 504
U .S .___, 113 S. Ct. 2130 (1992) . ............... 22-23

Personnel Administrator v. Feeney,
442 U.S. 256 (1979)............................................  27

Reynolds v. Sims, 377 U.S. 533 (1964) ......................  22

Rogers v. Lodge, 458 U.S. 613 (1982)......................... 5n

Shaw v. R eno,___U .S .___ , 113 S. Ct.
1816 (1993) ....................................................passim

Shaw v. Reno, 508 U .S .___, 113 S. Ct.
653 (1992) ........................................................  25n

Page



IV

Table of Authorities (continued)

Cases (continued):

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

Statutes:

Voting Rights Act of 1965, as amended,
§ §2 , 5 ....................................... ...................... passim

Rules:

Fed. R. Civ. P. 5 2 (a )............................................................ 5

Fed. R. Civ. P. 5 2 (b ).........................................................2-3

Supreme Court Rule 18.6 ..................................   1

Note on Citations

The following abbreviations are used throughout 
this Motion in citing to record documents in the case:

Shaw J.S.

Page

Pope J.S. 

J.S. App.

Jurisdictional Statement, No. 94-923 

Jurisdictional Statement, No. 94-924 

Appendix to Jurisdictional Statements



V

Note on Citations (continued)

Tr. Transcript of trial, Spring, 1994

Stip. Stipulations By the Parties (agreed 
to and signed by all parties March 
21, 1994)

Def.-Int.
Stip.

Stipulations Offered By Defendant- 
Intervenors (agreed to and signed by 
all parties March 21, 1994)

Exh. Exhibits (including trial exhibits and 
exhibits to stipulations)

Dep. Depositions received in evidence



Nos. 94-923, -924 

In the
Supreme Court of tfjc ®ntteti States

October Term , 1994

RUTH O. SHAW, et al.,

JAMES ARTHUR "ART' POPE, et al.,

Appellants,
v.

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

RALPH GINGLES, et al.,

Appellees.

Appeal from the United States District Court for the 
Eastern District of North Carolina, Raleigh Division

MOTION TO DISMISS OR AFFIRM 
OF APPELLEES RALPH GINGLES, et al}

Appellees Ralph Gingles, et al. (defendant-inter- 
venors below) respectfully request for the following 
reasons that this Court dismiss these appeals pursuant to 
Supreme Court Rule 18.6 because appellants have failed 
to prove the concrete injury necessary to establish their 
standing, or, alternatively, summarily affirm the judgment

Appellees Ralph Gingles, et al. are twenty-two white and black 
citizens and registered voters from throughout the State of North 
Carolina who were granted leave to intervene as defendants below 
following the remand of this action by this Court in Shaw v. Reno, 
___U .S .___ , 113 S. Ct. 2816 (1993).



2

below, which carefully applied the law as articulated by
this Court in Shaw v. Reno,___U .S .___ , 113 S. Ct. 2816
(1993) and was based on findings of fact, unique to North 
Carolina, that are well supported by the record.

STATEMENT OF THE CASE

This litigation challenges North Carolina’s 1992 
congressional redistricting plan on the ground that it is a 
racial gerrymander lacking sufficient justification under the 
Fourteenth Amendment to the United States Constitution. 
In Shaw v. Reno, this Court held that appellants’ com­
plaint "state[d] a [facially sufficient] claim by alleging that 
[the plan]. . .  rationally cannot be understood as anything 
other than an effort to separate voters into different dis­
tricts on the basis of race, and that the separation lacks 
sufficient justification." 113 S. Ct. at 2828. In order to 
establish their entitlement to relief on remand, therefore, 
it was appellants’ burden to demonstrate that the config­
uration of the districting plan did not result from the 
rational application of factors besides race and that the 
State had no sufficient justification for enacting the plan.

An extensive factual record was assembled on these 
issues in the district court. Most of the subsidiary histori­
cal facts were uncontested and the parties entered into a 
comprehensive set of stipulations. The parties consistently 
and fundamentally disagreed about the factual inferences 
to be drawn from the record evidence, however, and those 
disagreements, which were resolved by the trial court in 
appellees’ favor, are central to these appeals. See Shaw 
J.S. at i (describing issue as whether court below "ma[de] 
clearly erroneous findings of fact"); Pope J.S. at 25 
(arguing that the "factual analyses [below] are at odds 
with the record and are clearly erroneous"). Indeed, 
following the initial announcement of the ruling by the 
trial court, appellants filed motions pursuant to FED. R.



3

Civ. P. 52(b) seeking extensive supplemental and amend­
ed findings of fact; although some modifications to the 
opinion were made by the trial court (see Pope J.S. at 2), 
appellants (as noted) still quarrel substantially with the 
findings below.

The essential facts are set forth in the district 
court’s opinion and summarized in the Motion to Affirm 
by Appellees, the Governor and other Officials of the 
State of North Carolina, which we do not here duplicate. 
In the Argument section infra, we touch upon many of the 
factual findings which it would be necessary for this Court 
to find "clearly erroneous" in order to reach the "questions 
presented" as they are framed by the appellants.

ARGUMENT

Were this Court to reach any of the legal issues 
sought to be presented by the appellants based upon the 
hypothetical versions of the facts described in their Juris­
dictional Statements (which are contrary to the well- 
supported findings below), it should affirm the judgment 
of the trial court because the majority correctly under­
stood the opinion of this Court and properly carried out 
the remand directions of this Court in this case, Shaw v.
Reno,___U .S .___ , 113 S. Ct. 2816 (1993). See Motion
to Affirm by Appellees, the Governor and other Officials 
of the State of North Carolina ("State appellees").

Those legal issues could appropriately be addressed 
by this Court, however, only if it were to set aside, as 
clearly erroneous, the detailed factual findings of the 
majority below. As the State appellees note, much of the 
extensive record in this matter was stipulated by the 
parties, and there is little if any dispute about the 
subsidiary historical facts relevant to this controversy.



4

Appellants principally contest the inferences drawn from 
the factual record. Because those inferences are also 
factual in nature, and because appellants cannot demon­
strate (indeed, they have barely sought at all to do so) 
that they are "clearly erroneous" based upon the record, 
the issues sought to be raised by appellants in this Court 
are not actually presented by this case but are construc­
tions which might have arisen had appellants’ factual 
contentions not been rejected by the trial court.

In its prior ruling {Shaw v. Reno) this Court identi­
fied several distinct types of harms which might be caused 
by districting based solely upon race, and which, if 
suffered by a voter, might establish that voter’s standing 
to challenge that districting plan in federal court. On 
remand, however, the appellants here failed to demon­
strate, and the district court declined to find, that the 
districting plan in this case had in fact caused or was 
likely to cause any such injury. In the absence of such a 
showing and finding, appellants lack standing to maintain 
this action.

We urge that the judgment below either be sum­
marily affirmed on the merits or be dismissed because 
appellants’ lack of standing means that there is no federal 
jurisdiction over their claims. I.

I. THE DISTRICT COURT CORRECTLY
RESOLVED THE FACTUAL ISSUES IN THIS
CASE

The Jurisdictional Statements in this case reiterate 
the central factual contentions which the appellants 
advanced, but which the district court rejected, in the 
proceedings below. The Pope appellants repeatedly assert 
that "the district court’s opinion contains numerous 
factual errors and misstatements which served in part as



5

the bases" for its decision (Pope J.S. at 25). The Shaw 
appellants similarly urge that "the majority below made 
numerous findings which have no evidence for support or 
are contrary to the overwhelming weight of the evidence" 
(Shaw J.S. at 30 n.45; see id. at 9 n.9, 10). These 
assertions and the more specific factual contentions of 
appellants discussed infra, reflect the intensely fact-bound 
nature of the instant appeal.

This Court, however, does not ordinarily note 
probable jurisdiction to consider such evidentiaiy argu­
ments because its review is limited by FED. R. Civ. P. 
52(a), which requires that the trial court’s findings of fact 
must be upheld unless they are clearly erroneous. See, 
e.g., Thornburg v. Gingles, 478 U.S. 30, 77-80 (1986) 
(applying "clearly erroneous" standard in direct appeal 
from decision of three-judge court in action under § 2 of 
Voting Rights Act); City of Rome v. United States, 446 
U.S. 156, 183 (1980) (applying same standard in action 
under § 5 of Voting Rights Act).

If the district court’s account of the evidence is 
plausible in light of the record reviewed in its 
entirety, the [appellate court] may not reverse it 
even though convinced that had it been sitting as 
the trier of fact it would have weighed the 
evidence differently.

Anderson v. Bessemer City, 470 U.S. 564, 574 (1985).2 
Deference must therefore be given to the findings of fact

2This is true even where the lower court’s findings do not rest 
upon credibility determinations. Id. The "clearly erroneous" standard 
applies to all factual findings, both ultimate facts and the subsidiary 
findings upon which they are based. Rogers v. Lodge, 458 U.S. 613, 
622-23 (1982); see also Gingles, 478 U.S. at 78-79 ("clearly erroneous" 
standard applies to ultimate finding of vote dilution).



6

made by the court below, so long as there is evidence to 
support them. In this case, the many factual findings to 
which appellants object are all well supported by the 
evidence before the trial court.

(1) Appellants insist that North Carolina’s decision 
to enact the challenged districting plan was not based on 
any belief that a plan with fewer than two majority- 
minority districts would fail to comply with § 2 of the 
Voting Rights Act (Shaw J.S. at 11 & n .ll; Pope J.S. at 
26). The district court, however, rejected appellants’ 
contentions regarding this pivotal issue (J.S. App. 90a):

Beyond any question . . . the dominant concern 
driving the decision [of the legislature] was a per­
ception that . . . any . . . congressional redistricting 
plan which did not contain at least two majority- 
minority districts . . . would in fact violate the 
Voting Rights Act (or be so likely to violate the 
Act that in prudence it must be assumed to do 
so).3

The trial court’s opinion contains a detailed analysis of 
the evidence supporting this finding (J.S. App. 90a-95a). 
The court concluded that the validity of the legislature’s 
belief "was confirmed by objective evidence adduced at 
trial" (J.S. App. 93a).

At the very outset of the redistricting process, 
before any submissions had been made to the Department

3See also J.S. App. 108a:

The General Assembly did this in order to comply with §§ 2 
and 5 of the Voting Rights Act, on the basis of the well- 
founded belief of a sufficient majority of its membership that 
failure to do so would, or might well, violate one or both of 
those provisions.



7

of Justice, the legislature received and accepted the advice 
of independent counsel that the state would be in viola­
tion of § 2 unless it created at least one majority-black 
district (J.S. App. 85a). The parties also stipulated that 
prior to enacting any plan, the legislature had before it a 
variety of proposals that would have created two majority- 
black or majority-minority districts (see Stip. Exhs. 10, 23, 
49, 61; J.S. App. 85a-86a.)4

Members of the General Assembly had knowledge 
of the totality of circumstances surrounding congressional, 
statewide and state legislative elections in North Carolina. 
From their experiences as legislators during the 1980’s 
they were aware that the original congressional redistrict­
ing plan drafted in 1981 had been denied § 5 preclearance 
because the exclusion of politically active black voters 
from then-District 2 appeared to have the purpose and 
effect of diluting minority voting strength. A majority had 
participated in redrawing state legislative districts after 
Gingles to remedy violations of amended § 2 of the Vot­
ing Rights Act. (J.S. App. 90a-92a.)

A large number of successful § 2 challenges had 
previously been brought in the counties ultimately included 
within the First and Twelfth Districts. Of the 27 counties 
in the 1st District, 22 are covered by § 5 of the Voting 
Rights Act; in the Gingles litigation, § 2 violations were 
found in 11 of those counties and, since Gingles, 21 coun­
ties and cities in the 1st District have been the subject of 
challenges which resulted in changes to the method of

4After the Attorney General objected to the congressional district­
ing plan initially enacted by the legislature in 1991, but prior to 
adoption of the 1992 plan challenged in this litigation, an alternative 
which would have created three majority-minority districts was intro­
duced in the State House of Representatives. (Stip. Ex. 10.)



8

election. Two of the ten counties within which the 12th 
District is located are covered by § 5; in the Gingles litiga­
tion violations were found in both counties. Since Gingles, 
§ 2 suits have resulted in modification of local election 
systems in four of the ten counties. (J.S. App. 107a.)

The district court found that members of the legis­
lature knew from their "own personal experiences in 
North Carolina politics, that conditions in North Carolina 
were such that the African-American minority could likely 
prove many of the other factors that are relevant to estab­
lishing a § 2 violation under the statute’s ‘totality of the 
circumstances’ approach" (J.S. App. 92a). This finding is 
supported by extensive evidence of current conditions that 
significantly impede the ability of African-American voters 
in areas covered by the challenged districts to participate 
effectively in the political process, including the use of at- 
large elections in the overwhelming majority of counties 
and cities (Keech Dep., Exh. 2, Tables 1A, IB; Exh. 502, 
Statement of Delilah Blanks, at 5, 8 [Bladen County]); the 
difficulty that African-American agricultural or hourly 
workers experience in getting to the polls without suffer­
ing a loss of needed income (Exh. 502, Statement of 
James Sears, at 5 [Gates County], Statement of Alice Bal- 
lance, at 8-9 [Bertie County]); and the fears generated by 
threats of reprisals for any political independence (id., 
Statement of Willis Williams, at 9-11 [Martin County]).5 
It is still difficult for black voters to secure meaningful 
assistance at polling places (Exh. 502, Statement of Deli­
lah Blanks, at 7-8, Statement of Oscar Blanks, at 3-4

3For example, as late as 1992, during the campaign of a black 
candidate for Martin County Commissioner, African-American voters 
were threatened with loss of credit at a local pharmacy if they sup­
ported him (id., Statement of Willis Williams, at 9-11).



9

[Columbus County], Statement of Willis Williams, at 7-9, 
Statement of Alice Ballance, at 6-7). Black candidates 
have fewer financial resources and do not generally have 
access to the business and social contacts that have been 
politically indispensable for successful nominees (id., State­
ments of Delilah Blanks, James Sears, and Alice Ballance).

Extensive evidence was presented to the district 
court of the continuing effects of long-maintained, 
massive racial discrimination against African-Americans 
practiced in North Carolina, including the current 
economic, educational and similar disadvantages dispro­
portionately experienced by blacks in the state (see Def.- 
Int. Stip. Exhs. 1-26). The effects of these conditions are 
evident in the striking lack of black electoral success in 
statewide and other elections in North Carolina prior to 
implementation of court-ordered remedies under the 
Voting Rights Act.6 It is undisputed that from 1900 until 
after the post-1990 redistricting, no African-American 
candidate was elected to the United States Senate, Con­
gress, or any statewide non-judicial office, and only two 
such candidates succeeded in judicial contests prior to a 
redistricting occasioned by litigation (see Def.-Int. Stip. 
60, 61). No black person was elected to the North Caro­
lina General Assembly between 1900 and 1968, and at the 
time the Gingles suit was filed in 1981, there were only 
three African-American members of the House and one 
State Senator (Stip. 13, 18; Def.-Int. Stip. 77, 78). As the 
court below found, at the time the challenged plan was 
enacted "African-Americans were still not being elected to 
political office in the state in numbers even remotely

6See Gingles, 478 U.S. at 48 n.15 (extent to which minority group 
members elected to public office is among most important "Senate 
Report" factors supporting finding of § 2 violation).



10

approaching their [22%] representation in the general 
population, despite the fact that capable and experienced 
African-American candidates were running for election" 
(J.S. App. 82a-83a, 92a).7

As this Court said in Gingles, 478 U.S. at 46, "[t]he 
essence of a § 2 claim is that a certain electoral. .  . struc­
ture interacts with social and historical conditions to cause 
an inequality in the opportunities enjoyed by black and 
white voters to elect their preferred representatives." The 
preceding discussion provides examples of the extensive 
record support for the legislature’s conclusion in 1992 that 
a court would have been likely to find that black voters 
were not yet able to participate on an equal basis in the 
political process in North Carolina and to elect candidates 
of their choice (J.S. App. 92a-93a).

(2) The Shaw appellants insist there was insufficient 
white bloc voting in North Carolina to support a plausible 
§ 2 claim (Shaw J.S. at 16 n.16). The district court prop­
erly rejected this contention, finding "considerable 
evidence" that white bloc voting persisted (J.S. App. 
93a).8 All of the examples cited in the Shaw Jurisdic­
tional Statement pre-date this Court’s Gingles findings of

7In 1989 blacks were consistently underrepresented in local city 
and county positions, especially those chosen through at-large elec­
tions (see Def.-Int. Stip. 76, 80; Keech Dep., Def. Exh. 2, Tables 1-A, 
1-B, 2-A).

8See id. at 91a-92a:

Members of the legislative leadership stated in floor debate 
that they believed . . .  that pervasive bloc voting by the white 
majority allowed it usually to defeat candidates supported by 
the African-American minority in districts that were not 
majority-minority.



11

§ 2 violations in North Carolina, and in each instance the 
black candidate referred to by the appellants actually lost 
the election in question (see Shaw J.S. at 19-20). The 
trial court also made findings, not challenged by appel­
lants here, of continued race-based appeals to white 
voters (J.S. App. 92a, 93a-94a & n.57).9

(3) Both appellants assert, albeit with little further 
analysis, that black voters in North Carolina are too dis­
persed to form the basis of a "compact" district under 
Gingles (Shaw J.S. at 16; Pope J.S. at 10, 25). The Pope 
appellants, for example, argue that appellees failed to 
adduce "proof' that the black areas were compact, and 
that "the record demonstrated" a lack of compactness. 
(Pope J.S. at 7, 25). The district court, however, rejected 
appellants’ assessment of the evidence (J.S. App. 93a):

The overwhelming evidence established that the 
state’s African-American population was sufficient­
ly large and geographically compact to constitute 
a majority in two congressional districts. . . .10

The court noted that the Pope appellants themselves had 
prepared plans which included two majority-minority 
districts which "were ‘geographically compact’ under any

9In the proceedings that led to the passage of the redistricting 
plan, State Senator Walker specifically referred to the use of racial 
appeals in the 1990 election for U.S. Senator, and their effects upon 
the electorate, in urging his colleagues to support the creation of two 
majority-minority districts (Stip. 95, Exh. 200, at 932).

10See also J.S. App. 91a ("Numerous plans presented to the Gener­
al Assembly had demonstrated that the State’s African-American 
population was sufficiently large and geographically compact to con­
stitute a majority in two congressional districts").



12

reading of Gingles" (id.).n The opinion below included 
detailed findings regarding the location of "major, discrete 
concentrations of African-American population" in spe­
cific cities and rural areas (J.S. App. 83a).

(4) The chain of events lending to the adoption of 
the challenged districting plan included a decision by the 
Department of Justice to refuse to preclear, under § 5, an 
initial plan that contained only a single majority-minority 
congressional district. The Shaw appellants now advance 
two slightly different factual arguments in an effort to 
undermine the significance of the Attorney General’s § 5 
objection as a factor supporting the legislature’s belief 
that a plan with two majority-minority districts was 
required by the Voting Rights Act.

First, appellants urge that the Department expressly 
insisted that North Carolina adopt a racial "quota system" 
of representation, contending that the Assistant Attorney 
General for Civil Rights used the term "quota" in meet­
ings with state officials (Shaw J.S. at 13 n.13). Second, *

“Appellants suggest that this Court’s earlier opinion in Shaw v. 
Reno somehow contained a factual finding that blacks are so evenly 
distributed throughout the State of North Carolina that the compact­
ness precondition of Gingles could never be met. But in Shaw this 
Court expressly held that the dispute regarding the compactness of 
North Carolina’s black population was among the issues which "re­
main open for consideration on remand." 113 S. Ct. at 2831. Only 
a few years earlier, in Gingles, this Court had found that blacks in 
North Carolina were sufficiently concentrated to support a finding of 
liability under § 2 of the Voting Rights Act. The counties and black 
communities within which the two districts in the instant case are 
located are substantially the same as those involved in Gingles itself: 
the First Congressional District includes Northampton, Gates, Hart­
ford, Bertie, Chowan, Edgecomb, Washington, Halifax, Nash and 
Wilson Counties, and the Twelfth District includes portions of Dur­
ham, Forsyth and Mecklenberg Counties. See 478 U.S. at 35 nn.1-2.



13

appellants interpret Assistant Attorney General Dunne’s 
letter of December 18, 1991, denying preclearance of the 
earlier plan, as requiring "maximization" of majority- 
minority districts (id. at 14-15). But the district court 
emphatically rejected this account of the actions of and 
standards applied in this case by the Department of Justice.

The court below correctly concluded that in reject­
ing North Carolina’s first plan, the Department of Justice 
had expressly applied, not the discriminatory effect aspect 
of § 5 or § 2, but the distinct prohibition in § 5 of election 
laws with a discriminatory purpose (J.S. App. 87a-88a) 
(emphasis added):

On December 18, 1991, the Attorney General ob­
jected to . . . the [first] congressional redistricting 
plan . . . finding that the state had not met its 
burden, under § 5, of proving that the Plan did not 
have a racially-discriminatory purpose. . . . The 
letter concluded that the General Assembly’s "deci­
sion to place the concentration of minority voters 
in the southern part of the state into white major­
ity districts" appeared to be designed "to ensure the 
election of white incumbents while minimizing 
minority electoral strength."12

12See id. at 51a n.29 (”[T]he Justice Department’s denial of pre­
clearance was . .  . based . . .  on the ground that the state had failed 
to meet its burden of demonstrating that the plan did not violate the 
‘purpose’ prong of § 5 itself"); id. at 111a (”[T]he Justice Department 
had denied preclearance to [the first] plan on the ground that it 
failed to satisfy the ‘purpose’ prong of § 5"). The plausibility of this 
1991 finding is supported by the fact that in 1981, under a different 
administration, the Attorney General had also disapproved, under § 
5, a proposed congressional districting plan as racially motivated (J.S. 
App. 90a-91a n.55, 94a).



14

This finding renders largely irrelevant many of the 
arguments in the jurisdictional statements. Because the 
Justice Department’s § 5 objection in 1991 was based 
upon a finding that the earlier districting plan was 
animated by a discriminatory intent to "minimizfe] minor­
ity electoral strength," its emphasis on the legislature’s 
devising a plan that would provide appropriate and effec­
tive opportunities for African-American participation in 
the election of members of Congress was completely 
unexceptionable; this Court has never suggested that 
remedies for intentional racial discrimination may not 
take race into account.

(5) Appellants seek reconsideration in this Court 
of the factual issue that was the particular focus of the 
proceedings on remand -  why the First and Twelfth Con­
gressional Districts have the particular shapes noted in the 
Court’s earlier opinion. Appellants contend that race was 
the sole consideration, while the State maintained below 
that the legislature’s desire to create a distinctively rural 
First District and a distinctively urban Twelfth District, as 
well as to preserve the core areas of prior districts and 
protect incumbents, were of equal or greater significance. 
Appellants insist that the legislature had no such purposes 
(Pope J.S. at 23, 25 n .ll; Shaw J.S. at 9 n.8, 30).

Again, the district court, in its findings, rejected 
appellants’ contentions. For example, the court described 
the goals pursued by the legislature respecting creation of 
an "urban" and a "rural" district (J.S. App. 97a, 100a):

[T]he redistricting committees adopted the conven­
tion that at least 80% of [the] population [of the 
First District] must be located outside cities having 
populations greater than 20,000 . . . [and] . . .  a 
mirror-image convention to guide the Twelfth 
District’s urban design: at least 80% of its total



15

population must be drawn from cities with
populations of 20,000 or more.13

The court described contemporaneous testimony 
and legislative debates favoring the creation of such dist­
ricts (J.S. App. 96a, 102a, 104a), and the fears expressed 
by rural residents of the Coastal Plain that their interests 
would be ignored by urban voters in a mixed urban-rural 
district (J.S. App. 96a-97a); it expressly credited support­
ing testimony of the Director of the Bill Drafting Division 
of the General Assembly (J.S. App. 81a & n.53).14 The 
district court concluded that the intent to create such 
districts was a critical factor in the fashioning of districts 
that are considerably less regular in shape than would 
have been the case had the State sought solely to create 
two majority-minority districts (J.S. App. 102a, 109a).

(6) The Shaw appellants argue that the two chal­
lenged districts in fact are not, respectively, distinctively 
rural and urban (Shaw J.S. at 25, 26 & nn. 37-38). This 
argument completely ignores the findings of the court 
below (J.S. App. 82a, 83a, 96a-97a, 100a-105a) describing 
in detail the characteristics of the two districts, as shown 
by the evidence: The First District includes all four of the 
state’s counties that have agriculture as their principal 
source of income and most of the state’s counties that 
rank among the top ten producers of many different agri­
cultural commodities, including tobacco, sweet potatoes, 
peanuts, hogs, cotton, and corn for grain (J.S. App.

I3See J.S. App. 109a (noting "legislative intention to create one 
predominantly rural (First) and one predominately urban (Twelfth) 
district").

14See Tr. 333-35, 343-44, 350-52.



16

103a).15 16 In contrast, 86.3% of the residents of the 
Twelfth District, which is located in the industrial and 
commercial heartland of the State, live in urban areas 
(id.)}6 The district court concluded, based on a particu­
larly extensive record, that residents of the First District, 
without regard to race, shared vital common interests in 
agricultural issues, while residents of the Twelfth had 
distinct common concerns with urban problems (J.S. App. 
104a):

[T]he two districts are among the most, rather than 
the least, homogeneous of the current twelve, in 
terms of the material conditions and political 
opinions of their citizens, whether only its white 
citizens, or only its African-American, or both 
together are considered.

African-Americans are not the only farmers in the rural 
1st District, nor the only urban dwellers in the 12th, and 
appellants presented no evidence whatsoever for the 
proposition that the homogeneity of the districts results 
from their racial composition.

(7) Finally, the Pope appellants suggest that the 
North Carolina legislature could not have known that the 
First and Twelfth Districts were distinctly rural and urban, 
respectively, because certain 1990 census data was not yet 
available when the lines were drawn (Pope J.S. at 25). At 
the time the districting plan was enacted, however, state 
officials actually had detailed census data revealing the

15Stip. 123.

16District 12 contains more banking institutions than any 
Congressional district in the nation apart from the district containing 
Wall Street in New York City (Tr. 932).



17

population down to the census tract level (J.S. App. 79a, 
97a). The district court, moreover, properly concluded 
that the rural or urban nature of particular areas was a 
matter of common knowledge in North Carolina, partic­
ularly to state legislators who lived and campaigned 
regularly in those very regions (J.S. App. 82a, 102a, 104a 
n.58).

II. THE OTHER LEGAL ISSUES ADVANCED BY 
APPELLANTS ARE INSUBSTANTIAL ON THIS 
RECORD

The remaining arguments raised by appellants con­
cern issues not presented by the opinion and judgment 
below or questions already definitively resolved by prior 
decisions of this Court.

(1) Both appellants urge the Court to address the 
legal and constitutional issues that might be raised if the 
Department of Justice were to utilize an unduly expansive 
interpretation of the "elfect" prong of §§ 2 or 5 of the 
Voting Rights Act (Pope J.S. at 14-15; Shaw J.S. at 12- 
15). In the instant case, however, the Justice Department 
action was expressly grounded upon the "purpose" prong 
of § 5, and the appeal thus simply does not present such 
issues, which the district court explicitly did not decide 
(J.S. App. 51a n.29, 87a-88a, 109a).17 See supra pp. 12-14.

17See J.S. App. 51a n.29:

[S]ince the Justice Department’s denial of preclearance was 
not based on the ground that the proposed plan was in . . . 
violation of § 2, but on . . .  the "purpose” prong of § 5 itself 
. . .  [w]e need not address plaintiff-intervenors’ argument that 
the Justice Department has exceeded its authority under § 5 
by incorporating the § 2 "results" standard into a § 5 
preclearance analysis.



18

(2) The Pope appellants assert that the district 
court gave insufficient weight to the particular shape of 
the districts in this case (Pope J.S. at 6-8). The shape of 
a challenged district is critical under Shaw v. Reno to 
determining whether a challenged plan should be subject­
ed to strict scrutiny. But in the instant case the district 
court ruled for appellants on that threshold issue and in 
fact subjected the two challenged districts to that search­
ing review (J.S. App. 7a, 110a). No purpose would be 
served by reanalyzing the evidence regarding an issue on 
which the appellants themselves already prevailed below.

(3) The Shaw appellants insist that the district 
court adopted an "implicit" holding that only black office­
holders can adequately represent black voters (Shaw J.S. 
at 22). But the district court opinion contains no such 
holding; on the contrary, the court below stressed that the 
plan does not impose a rigid quota for African-American 
representation because, as is the case in other majority- 
minority districts in North Carolina, non-minority 
candidates can and have been elected from them (see J.S. 
App. 60a n.40, 108a). This is demonstrated by the past 
experience with majority-minority districts for State legis­
lative seats: "Of the eight majority-minority House and 
Senate districts created to comply with § 2 of the Voting 
Rights Act pursuant to the judgment in Gingles, three are 
presently represented by whites . . ." (J.S. App. 108a). In 
the first Democratic primary under the challenged plan, 
a white candidate won the most votes in the First Con­
gressional District and came within one percentage point 
of attaining 40% of the total vote, which would have 
resulted in his nomination (Stip. 129, Exh. 64, at 29).

(4) The Pope appellants complain that the court 
below assertedly erred in failing to recognize that "the 
defendants . . . have the burden of producing evidence



19

that remedial action was appropriate" (Pope J.S. at 21) 
(emphasis in original). But the district court placed 
precisely that burden on the defendants: "[T]he state’s 
burden . . .  is producing evidence that the plan’s use of 
race is narrowly tailored to further a compelling state 
interest. . ." (J.S. App. 43a; see id. at 110a). Both appel­
lants also urge the Court to note probable jurisdiction to 
decide which party in a case such as this bears the burden 
of proof as to the existence of a compelling state interest 
(Shaw J.S. at 29-30; Pope J.S. at 23). The district court 
expressly held that the defendants had indeed met that 
burden,18 so a decision sustaining appellants’ contention 
that the defendants bear that burden would not affect the 
outcome of the instant case.

(5) The Pope appellants insist that § 2 of the 
Voting Rights Act can never be invoked to justify a non- 
court-ordered districting plan; rather, they argue, a court 
can consider that provision of the Act only in a § 2 suit 
brought by blacks to challenge a districting plan favorable 
to whites (Pope J.S. at 10, 14, 16, 17). On this view, it 
would be unconstitutional for a state to comply voluntarily

18See J.S. App. llla-113a (emphasis added):

The state has adequately established that it had a ‘compelling 
interest’ in enacting a race-based congressional districting 
plan . . . .  The state has adequately established that the Plan 
creating the two remedial districts was ‘narrowly tailored’ 
. . . .  First, the state has demonstrated that the Plan does not 
create more majority-minority districts than is reasonably 
necessary . . . .  Second, the state has demonstrated that the 
Plan does not impose a rigid quota for African-Americans’ 
representation . . . .  Third, the state has demonstrated that 
the Plan is a remedial measure of limited duration . . . .  
Finally, the state has demonstrated that the Plan does not 
impose an undue burden on the rights of innocent third 
parties . . . .



20

with § 2; rather, a state would be obligated to violate § 2 
knowingly and then await a court-ordered remedy. 
However, the Court’s decision in Shaw v. Reno expressly 
recognized that a state would have a sufficiently compel­
ling interest in voluntarily complying with the require­
ments of § 2, 113 S. Ct. at 2830.

(6) The Shaw appellants insist that race-based dist­
ricting can never be justified by a compelling state interest 
and is thus unconstitutional per se (see Shaw J.S. at 17-18 
& n.18). Every member of the Court in Shaw v. Reno, 
however, rejected that contention; the majority held that 
the "bizarre" districts described in the Court’s opinion 
were not unconstitutional per se, but rather are subject to 
strict scrutiny.19

(7) The Shaw appellants argue against the remedial 
creation of majority-minority districts because "the mobil­
ity of the American population" means that such districts 
will benefit blacks who did not live in the area during past 
periods of discrimination and will affect newly arrived 
whites who did not perpetuate discrimination in that 
particular location (Shaw J.S. at 18). This Court was 
certainly aware when it decided Shaw that voters con­
stantly move into and out of districts; it would not have 
directed an inquiry into the justifications for particular 
districts if it had thought that population mobility would 
automatically determine the outcome of any such analysis.

The attempt by appellants to import "innocent 
victim" concepts from other areas of the law would

19See, e.g., 113 S. Ct. at 2830 ("If appellants’ allegations of a racial 
gerrymander are not contradicted on remand, the District Court must 
determine whether the General Assembly’s reapportionment plan 
satisfies strict scrunity").



21

embroil this Court in definitional difficulties of almost 
unimaginable proportions. For example, the Court would 
have to determine who are "voters who had no connection 
with the past discrimination" (Shaw J.S. at 18). Would 
that category include only election officials who impeded 
the registration of African-American citizens in the past? 
legislators who enacted dilutive apportionment plans that 
were stricken under the Voting Rights Act? voters who 
elected the legislatures that enacted those plans? In this 
case, as noted above, the Attorney General objected to 
the initial 1991 redistricting plan adopted by the North 
Carolina legislature on the ground that it appeared to be 
purposefully discriminatory. That discriminatory act was 
not long in the past and was committed by a legislature 
for whose members it is likely that all of the appellants 
voted. Professor Shimm, for example, has resided in 
North Carolina for more than 34 years and at one time 
had been active in partisan politics (Shimm Dep. at 6-8).

More significantly, adoption of appellants’ sugges­
tion would completely eviscerate the Voting Rights Act, 
contrary to the clear Congressional purpose recognized 
and effectuated by this Court in a long line of decisions. 
Under appellants’ approach, a finding that the political 
process is not equally available to minority voters, the 
bedrock finding that establishes a violation of § 2 of the 
Voting Rights Act, Gingles, 478 U.S. at 44, 80, is of no 
import. Appellants would require courts and legislatures 
to ignore these conditions, rather than remedy them, 
solely because the remedy may change the district — not 
dilute the vote -  of a citizen who may not have resided 
within the jurisdiction at the time some discrete act of 
prior discrimination took place. Such an approach would 
effectively repeal the Act and finds no support whatsoever 
in the statute, its legislative history, or the prior decisions 
of this Court interpreting it.



22

(8) Finally, the Pope appellants contend that 
because congressional districting plans are ordinarily in 
effect for a ten-year period (until the next census), 
majority-minority districts are unconstitutional no matter 
how compelling the state’s interest in creating them. See 
Pope J.S. at 20 ("[a] decade-long ‘remedy’ is not, by defin­
ition, a limited remedy"). To the contrary, any measure 
which automatically expires in a decade is operational for 
only a limited period of time. Whatever period of time 
might be thought appropriate in other contexts, a redist­
ricting plan which remains in effect until the next census 
is surely appropriate. In analogous circumstances, not­
withstanding the Equal Protection requirement of one- 
person-one-vote, the States are permitted to keep the 
same districts in use for a full decade after each census, 
despite the fact that population shifts invariably result in 
differences in district populations that would have been 
unconstitutional if present at the beginning of the period. 
See Reynolds v. Sims, 377 U.S. 533, 583-84 (1964).

(9) Appellants’ other, equally insubstantial, conten­
tions are addressed in the State appellees’ Motion to 
Affirm.

III. T H E  A P P E L L A N T S  F A I L E D  TO  
DEMONSTRATE AS A MATTER OF FACT 
THAT THEY WERE PERSONALLY INJURED BY 
THE DISPUTED DISTRICTING PLAN

The party invoking federal jurisdiction bears the 
burden of establishing th[e] elements [of standing, 
including "injury in fact"] . . . .  Since they are not 
mere pleading requirements but rather an indis­
pensable part of the plaintiff’s case, each element 
must be supported in the same way as any other 
matter on which the plaintiff bears the burden of



23

proof, i.e. with the manner and degree of evidence 
required at the successive stages of the litigation 
. . . .  [Tjhose facts . . . must be "supported ade­
quately by the evidence adduced at trial."

Lujan v. Defenders of Wildlife, 504 U.S. ___, 113 S. Ct.
2130, 2136-37 (1992) (emphasis added).

In the instant case appellants were obligated to 
prove at trial that the challenged districts had in fact 
caused at least one of the injuries described by this Court 
in Shaw v. Reno: (1) the state’s overall districting plan 
diluted the votes of the group to which the plaintiffs be­
long, 113 S. Ct. at 2828, (2) the lines of the challenged 
district had the effect of "exacerbating] . . . patterns of 
bloc voting", id. at 2827, or (3) the boundaries of that 
district prompted the officials elected from it to "represent 
a particular racial group," of which the plaintiffs were not 
members, "rather than their constituency was a whole," id. 
at 2828.

In the proceedings on remand the appellants did 
not, of course, claim North Carolina’s districting plan 
diluted the votes of whites. See Shaw v. Reno, 113 S. Ct. 
at 2823. Nor did appellants contend that racial bloc 
voting has increased since the 1991 enactment of the 
districting plan at issue; to the contraiy, the Shaw appel­
lants maintain bloc voting in North Carolina is actually on 
the decline (see Shaw J.S. at 19-20). The appellants prof­
fered some anecdotal opinion apparently intended to 
show that the Representative from the Twelfth District 
was unresponsive to the interests of whites, but the dist­
rict court was not persuaded that any such injury had in 
fact occurred (J.S.App. 105a):

[There is] no convincing evidence in the record 
that. . . these two districts have had or are having



24

any significant adverse effect upon their citizens’ 
interests in fair and effective representation -- in 
matters of voting or access to their elected repre­
sentatives. Indeed, such evidence as there is on 
the matter predominates in the other direction.20

The district court acknowledged "that the plaintiffs 
have not even alleged, much less proved, the sort of 
‘injury in fact’ required by" this Court’s past standing 
decisions (J.S. App. 21a) but mistakenly believed that this 
Court in Shaw had tacitly revolutionized standing law, 
insisting that Shaw would not "countenance" requiring a 
plaintiff in a case such as this to "demonstrate that it has 
raised some sort of concrete and material injury to his 
political interest" (J.S. App. 25a n.13). Rather, it held 
(J.S. App. 26a): "[W]e understand Shaw necessarily to 
have implied a standing principle that accords standing to 
challenge a race-based districting plan to any voter . . ." 
(emphasis added).

Nothing in Shaw, however, purported to abolish, 
expressly or by implication, the requirement that a

“ See also J.S. App. 115a ([W]hite voters[’] . . . voting rights have 
been in no legally cognizable way harmed by the plan"). Appellants 
present only snippets of leading cross-examination questions to 
"corroborate!]" their assertion that the Representative elected in 
District 12 views his mandate as being to represent only black voters 
(Shaw J.S. at 7 n.6). They do not provide this Court with the full 
context of Rep. Watt’s remarks and explanatory testimony, which 
indicates that he is concerned about and responsive to constituents of 
all races within his district. See Tr. 936-45, 957-60, 995-1003; Exh. 
502, Statement of Melvin L. Watt, at HI 16-18; see also Exh. 502, 
Statements of Ellen Emerson, Charles Lambeth, Jr., Jennifer McGov­
ern, and Dr. Bernard Offerman (white voters in the 12th District who 
expressed satisfaction with representation of their interests being 
provided by Congressman Watt).



25

plaintiff show "concrete and material injury." Indeed, 
nothing in Shaw purported to address any general issue of 
standing law. The only question actually resolved in Shaw 
was one of substantive Equal Protection law,21 and the 
Court expressly refused to note probable jurisdiction over 
a standing question raised by the Shaw appellants in their 
1992 Jurisdictional Statement.22 The majority in Shaw 
emphasized that increased bloc voting or official indiffer­
ence to the interest of a distinct racial group were "harms 
. .  . cognizable under the Fourteenth Amendment," 113 S. 
Ct. at 2828. Such an identification of the specific harms 
which, if proven, would establish standing, would have 
made no sense if the Court had meant to abolish by impli­
cation the longstanding requirement that there be any 
demonstrable harm at all.

The district court cited Allen v. Wright, 468 U.S. 
737, 755 (1984), as holding that any "use of racial classifi­
cations necessarily inflicts ‘stigmatic’ injury" (J.S. App. 22a) 
(emphasis added). But Allen held precisely the opposite, 
insisting that a claim of stigma was sufficient to support 
standing only "in some circumstances" -  specifically, those 
in which a plaintiff had also been injured by denial of a

21113 S. Ct. at 2832 ("Today we hold only that appellants have 
stated a claim under the Equal Protection Clause . . .") (emphasis 
added).

22See Jurisdictional Statement, No. 92-357, at i ("Do white voters 
have standing to seek relief from congressional redistricting which 
was intended by both the state and federal defendants to result in the 
election of minority persons to Congress from two majority-minority 
districts?"). In noting probable jurisdiction the Court directed that 
"[ajrgument shall be limited to the following question" (viz., whether 
an intention to comply with the Voting Rights Act precluded a 
finding of discriminatory intent in the adoption of a districting plan). 
508 U.S. _ ,  113 S. Ct. 653 (1992) (emphasis added).



26

concrete benefit accorded to others. 468 U.S. at 755. 
Allen stressed that a claim of stigmatic injury is never 
sufficient to support standing unless accompanied by 
proof of

some concrete interest with respect to which 
respondents are personally subject to discrimina­
tory treatment. That interest must independently 
satisfy the causation requirement of standing 
doctrine.

Id. at 757 n.22 (emphasis added). This Court rejected a 
stigma-based standing claim in Allen precisely because the 
plaintiffs there were not able to prove they had suffered 
some other concrete injury sufficient by itself to support 
standing. Id. On essentially identical facts the court 
below mistakenly reached the opposite result, recognizing 
that there was no "concrete and material injury" (J.S. App. 
25a n.13), and then holding that an abstract claim of 
stigma was nonetheless sufficient by itself (J.S. App. 22a- 
23a).

In Diamond v. Charles, 416 U.S. 54 (1986), a pedia­
trician sought to defend the provisions of an abortion 
statute against constitutional attack in furtherance of his 
concern for "the standards of medical practice that ought 
to be applied to the performance of abortions," id. at 66. 
This Court held that that the doctor had no standing:

Although Diamond’s allegation may be cloaked in 
the nomenclature of a special professional interest, 
it is simply the expression of a desire that the 
Illinois Abortion Law as written be obeyed. 
Article III requires more than a desire to vindicate 
value interests.

476 U.S. at 66. Diamond is controlling here. What appel­
lants seek is to "vindicate [their] value interests" by having



27

the legislature adopt a redistricting plan that conforms to 
their personal interpretation of what the Equal Protection 
Clause requires, even though they cannot demonstrate 
that they have suffered any concrete injury.

In the circumstances of this case, the claim of 
"stigma” is particularly fanciful. The two appellants who 
live in District 12 apparently feel stigmatized by the fact 
that they live in a district intentionally created as a 
majority-minority district, even though white voters consti­
tute 45.21% of the voting-age population. They do not 
claim, however, that they or any other whites were placed 
within District 12 on the basis of race. To the contrary, 
it necessarily follows from appellants’ arguments that 
white voters were placed in District 12 either by happen­
stance or, at the very least, in spite of, and not because of, 
their race. See Personnel Administrator v. Feeney, 442 U.S. 
256, 279 (1979). The remaining appellants are whites who 
live in majority-white districts; they are not, however, 
complaining that they have been stigmatized by being 
excluded from a majority-black Congressional district.

In the absence of Article III standing, neither this 
Court nor any other federal court has jurisdiction. 
Accordingly, Allen v. Wright and Diamond v. Charles 
require that the instant appeals be dismissed for want of 
federal jurisdiction.

IV. THE APPELLANTS FAILED TO MEET THEIR
THRESHOLD BURDEN UNDER THIS COURT’S
DECISION IN SHAW V. RENO

In Shaw v Reno this Court spelled out specifically 
the allegation which the appellants were required to sub­
stantiate on remand before the challenged congressional 
districting plan would be subject to strict scrutiny:



28

that the North Carolina General Assembly adopted 
a reapportionment scheme so irrational on its face 
that it can be understood only as an effort to 
segregate voters into separate voting districts 
because of their race

113 S. Ct. at 2832 (emphasis added). That was precisely 
the allegation advanced by the Shaw appellants when this 
case was before this Court in October Term, 1992.23

On remand to the district court, however, the 
nature of the appellants’ claim shifted dramatically.24 
First, the appellants declined to pursue any claim that the 
First and Twelfth Districts were "segregatefdj." The aban­
donment of that allegation was precipitated by undisputed 
evidence that (unlike the area excised from the city of 
Tuskegee in Gomillion v. Lightfoot, 364 U.S. 339, 341 
(1960), which was 100% black), the First and Twelfth 
Districts were almost evenly integrated, 50.5% and 53.5% 
black, respectively (J.S. App. 108a, 113a). These two 
districts are in fact more evenly integrated than virtually 
any other congressional districts in the nation, and more 
integrated than any in modern North Carolina history,

™See Shaw, 113 S. Ct. at 2823:

What appellants object to is redistricting legislation that is so 
extremely irregular on its face that it rationally can be viewed 
only as an effort to segregate the races for purposes of voting 
. . . without sufficient compelling justification.

24See J.S. App. 26a:

Plaintiffs . . . contend that . . . strict scrutiny applies to any 
districting plan in which consideration of race is shown to 
have played a "substantial" or "motivating" role in the line­
drawing process, even if it was not the only factor that 
influenced that process.



29

including the remaining districts in the challenged plan, 
all of which are heavily white. It is therefore not sur­
prising that the Shaw appellants’ Jurisdictional Statement 
conspicuously makes no mention of the specifically 
framed allegation of "segregation" which they pressed in 
this Court less than two years ago.

Second, neither appellant any longer contends that 
the boundaries of the First and Twelfth Districts "can be 
understood only as an effort to segregate voters" or to 
achieve any other racial purpose. All the judges below 
agreed that various aspects of the lines were in fact an 
effort to achieve non-racial goals, such as to create dis­
tinctively urban and rural districts, to preserve communi­
ties of interest, and to protect incumbents (J.S. App. 96a- 
101a, 109a, 121a n.6, 127a n .ll); to the extent that the 
lines were drawn for such non-racial purposes, they obvi­
ously cannot be understood "only as an effort" to achieve 
some racial end. Far from attacking this finding, the 
Shaw appellants now embrace it; in their current Jurisdic­
tional Statement they argue that the challenged districts 
are unconstitutional precisely because they are in part an 
effort to achieve non-racial goals such as incumbency 
protection, favoring particular prospective candidates, or 
"needlfing] the president pro tempore of the Senate" 
(Shaw J.S. at 27). But the argument which the Shaw 
appellants now advance — that the lines are invalid be­
cause they are not solely an effort to segregate voters — is 
precisely the opposite of the position they urged on this 
Court barely two years ago.

Despite the failure of appellants to substantiate, or 
even reassert, the allegations that are the touchstone of 
the cause of action upheld in Shaw v. Reno, the district 
court mistakenly applied strict scrutiny to the districting 
plan. Under a standard more deferential to the important



30

State interests that shaped North Carolina’s 1992 
Congressional redistricting, that judgment is unquestion­
ably correct. This Court should accordingly affirm the 
judgment below without reviewing the district court’s 
application of the strict scrutiny standard.

CONCLUSION

For the above reasons, this Court should dismiss 
the appeal herein or summarily affirm the decision of the 
court below.

Respectfully submitted,

Elaine R. Jones 
Director-Counsel

Theodore M. Shaw 
Norman J. Chachkin 
Jacqueline A. Berrien 
NAACP Legal Defense & 
Educational Fund, Inc. 

99 Hudson Street, 16th fl. 
New York, NY 10013 
(212) 219-1900

Anita S. Hodgkiss 
Counsel of Record 
Adam Stein 
James E. Ferguson 
Ferguson, Stein, Wallas, 
Adkins, Gresham & 
Sumter, RA.

700 E. Stonewall, Ste. 730 
Charlotte, NC 28202 
(704) 375-8461

Attorneys for Appellees Ralph Gingles, et al.

Date: December 30, 1994