Jurisdictional Statement

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~. @ARTIN B. McGEE ROBINSON O. EVERETT* Z Williams, Boger, Grady Everett & Everett = Davis & Tutlle, P.A. P.O. Box 586 P.O. Box 810 Durham, NC 27702 

No. 98- 4.50 
  
        

IN THE SUPREME COURT OF TIE 
UNITED STATES 

October Term, 1997 

  

            

MARTIN CROMARTIE, et al, 
Appellants, 

py. 

JAMES B. HUNT, JR., in his official 
capacity as Govemor of the 

State of North Carolina, et al. 
Appellees. 

    

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

  

    

        

      
  

Concord, NC 28026-0810 (919)-682-5691 
(704)-782-1173 

*Counsel of Record 

  

    
  

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QUESTIONS PRESENTED 

After the 1992 and 1997 redistricting plans had been 
held unconstitutional as racial gerrymanders and the 
General Assembly had enacted a new plan, was the 
district court required to determine that any 
unconstitutional vestiges of tlie earlier plan had been 
removed before allowing the 1998 plan to be used in 
elections? 

In determining whether the 1998 plan was an adequate 
remedy for the unconstitutional defects of the 1992 and 
1997 racial gerrymanders, should the three-judge 
district court have placed on the State defendants the 
burden of proving that race did not predominate as a 
motive in drawing Districts 1 and 12? 

  

  

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LIST OF PARTIES 

MARTIN CROMARTIE, THOMAS CHANDLER MUSE, 
R.O. EVERETT, JH. FROELICH, JAMES RONALD 
LINVILLE, SUSAN HARDAWAY, ROBERT WEAVER and 
JOEL K. BOURNE are appellanis in this case and were 
plaintiffs below; : 

JAMES B. HUNT, JR. in his official capacity as Governor of 
the State of North Carolina, DENNIS WICKER in his official 
capacity as Lieutenant Govemor of the State of North Carolina, 
HAROLD BRUBAKER in his official capacity as Speaker of 
the North Carolina House. of Representatives, ELAINE 
MARSHALL in her official capacity as Secretary of the State 
of North Carolina, and LARRY LEAKE, S. KATHERINE 
BURNETTE, FAIGER BLACKWELL, DOROTHY 
PRESSER and JUNE YOUNGBLQOOD in their capacity as the 
North Carolina State Board of Elections, were defendants 
below and are appellees in this case. 

ALFRED SMALLWOOD, DAVID MOORE, WILLIAM M. 
HODGES, ROBERT L. DAVIS, JR, JAN VALDER, 
BARNEY OFFERMAN, VIRGINIA NEWELL, CHARLES 
LAMBETH and GEORGE SIMKINS were allowed to 
intervene of right as defendants at the time of the order 
appealed from; and as defendant-intervenors they are included 
as appellees. 

Apart from lhe defendant-intervenors who are included as 
appellees in this appeal, the parties in this case are the same as 
in the separate appeal filed earlier in Hunt v. Cromartie, No. 
98-85, in which the present appellants, Cromartie, ef al., who 
were plaintiffs in the three-judge district court, were appellees 
and the present appellees, Hunt, ef al,, who were defendants 
below, were appellants. 

  

 



  TABLE OF CONTENTS ; 
| bd QUESTIONS PRESENTED .............on.. Bee 

LISTOFPARTIES fm 500 Tn 0 i 
A IABLEOr AUTHORITIBS::..........00 0 iv ’ 

a 
u OPINION BELOW. ....oh. cots. 3, 0 2 & 

JURISDICTION .........eoniots le. 22 2 
CONSTITUTIONAL AND STATUTORY 

PROVISIONS INVOLVED... 1... 4 
STATEMENTOE THECASE oc... 05. 3 
ARGUMENT. vi ifr, os iis 5 
PYIROBUCTION ... 5. [0s 1.0 eg 5 
I. THE COURT BELOW HAD THE DUTY To DETERMINE THAT NO “VESTIGES” OF THE EARLIER UNCONSTITUTIONAL PLANS REMAINED IN THE 1998 PLAN ...... 8 

Il. THEDISTRICT COURT SHOULD HAVE PLACED ON THE STATE DEFENDANTS THE : BURDEN OF PROVING THAT THE 1998 PLAN hy WASNOTRACE-BASED,. 20", i 
a 

on CONCLUSION, 1.0 itn fon ai [7 
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© TABLE OF AUTHORITIES ~~ 

= Brown v. Board of Educ., 892 F.2d 851 (10th Cir. 1989) .. 8 

Brown v. Illinois, 422 U.S. 590 (1 015) ....... A. 9.17 

Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526 (1979) ... 8 

Dunaway v. New York, 442 U.S. 200 0979). ..... 0 9.13 J 

= ® » Cromartie, 8.C1. No. 98-85 ......... passim a 
«© 

SS. Hunierv Underwood, 471U.8. 222 (1985) ...... [1 
= Miller v. Johnson, 515 US.000¢1998y. ,...0 12 o> 
<TC 

"Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. SUIT) reer. a 1 
Nardone v. United States, 308 U.S. 338 (1939)... 9 

re Ross v. Houston Ind Sch. Dist., 699 F.2d 218 (5th <5 Cn 1080 on i a 9 oo 

= School Bd of the City of Richmond Vv. Baliles, 829 F.2d a 303 anmCienogy 0 TL 9, 16 <TC p= 
: = Shaw v. Hunt, S17US, 39901996)... .%....... possin 

Lo Snepp v. United States, 444 U.S. 507 (1930). .....» = 10 Tr 

= Swann v. Charlotte-Meckienburg Bd. of Educ., 402 U.S. 1 3 O71)... a fa mE a 8 -_= 

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Taylor v. Alabama, 457 U.S. 687 (1982)... ..... = ..¢9 

Taylor v. Ouachita Parish Sch, Bd., 648 F.2d 959 
QO), . oh io 9.17 

United States v. Lawrence County Sch. Dist., 799 F.2d 103] 
(3th Cir. 1986) ........ RP Se UE 

Vaughan v. Board of Educ., 758 F.2d 983 (4th Cir. 
Caste verb naeRe ti I Ls Te 16 

Village of Arlington Heights v. Metropolitan Dev. Corp., 
49U8.2500197%).. .p.... 911,16 

Washington v. Davis, 426 U.S. 2200976) ...... "7 

Wise v. Lipscomb, 437 US. 535(1918)........ 6.7, 10, 16 

Wong Sun v. United States, 371 U.S. 214293... 19" ° 

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= CONSTITUTIONAL AND STATUTORY PROVISIONS 5 rv 
a US. Const, Amendinly. oui. id .F 2.3 

BUSCEI23 oni inlb 7:3 

USCS: ......00. 0. ...5 LR 13 

NC.Con. Stal. § 163008). 22.0.0. Lob 1,2 

1997 N.C. Sess. Laws, Oh M0. vii iin 0 4 

1998 N.C. Sess. Laws, Ch. 2 ras rma igins doh, we 1,28 

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No. 98-450 

IN THE SUPREME COURT OF THE 

UNITED STATES 

October Term, 1998 

  

MARTIN CROMARTIE, et al., 
Appellants, 

V. 

JAMES B. HUNT, JR., in his official 

capacity as Governor of the 
State of North Carolina, ef al, 

Appellees. 

  

ON APPEAL 
FROM THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

  

JURISDICTIONAL STATEMENT 

  

Martin Cromartie and the other Plaintiffs below appeal 
from the Order of the Uniled States District Court for the 
Eastern District of North Carolina, dated June 22, 1998, which 
denied to appellants the temporary and permanent injunction 
which they had sought to enjoin the State appellees from 
conducting any elections under the congressional redistricting 
plan enacted by the North Carolina General Assembly on May 
21, 1998. See 1998 N.C. Sess. Laws, Ch. 2, amending N.C. 
Gen. Stat. § 163-201 (a). Plaintiffs filed notice of appeal on July 

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17, 1998 and jurisdiction of this appeal is conferred on this Court by 28 U.S.C. § 1253. 

OPINION BELOW 

The June 22, 1998 opinion of the three-judge district court, which has not yet been reported, appears in the appendix 
to this jurisdictional statement at | a. 

JURISDICTION 

The district court's order denying the injunction was entered on June 22, 1998. On July 17, 1998, appellants filed a notice of appeal to this Count. The jurisdiction of this Court is invoked under 28 U.S.C. § 1253. 

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED 

This appzal concems the constitutionality of 1998 N.C. Sess. Laws, Ch. 2, which amended N.C. Gen. Stat. § 163- 201(a); copies of this Session Law were previously lodged with the Court by the present appellants in connection with the Motion to Dismiss or, in the Alternative, to Affirm which they filed in Hunt v. Cromartie (No. 98-85), where they are 
appellees. 

The present appeal involves the Equal Protection Clause of the Fourteenth Amendment which provides: 

All persons bom or naturalized in the United 
States, and subject to the jurisdiction thereof, 
are citizens of the United States and of the State 
wherein they reside. No State shall make or 
enforce any law which shall abridge the 
privileges or immunities of citizens of the  



  

3 

United States; nor shall any State deprive any 
person of life, liberty, or property, without due 
process of law; nor deny to any person within 
its jurisdiction the equal protection of the laws. 

This appeal is taken pursuant to 28 U.S.C. § 1253 
which provides: : 

Except as otherwise provided by law, any party 
may appeal to the Supreme Court from an order 
granting or denying, after notice and hearing, an 
interlocutory or permanent injunction in any 
civil action, suit or proceeding required by any 
Act of Congress to be heard and determined by 
a district court of three judges. 

STATEMENT OF THE CASE' 

In Shaw v. Hunt, 517 U.S. 899 (1996) (“Shaw II), the 
Court held thal District 12 in North Carolina’s 1992 
congressional redistricting plan (“the 1992 plan”) violated the 
Equal Protection Clause because race predominated in the 
design of the Twelfth Congressional District, and the plan 
could not survive strict scrutiny. The Court declined to 
consider the constitutionality of the First District in the 1992 
plan because none of the plaintiffs had standing. Therefore, a 
separate action was initiated by Martin Cromartie and other 
registered voters in the First District to challenge its 
constitutionality. 

  

' The present appellants have provided the Court a more detailed 
statement of the relevant facts in their Counterstatement contained in the 
Motion to Dismiss or, in the Alternative, to Affirm which they filed in Hunt 
v. Cromartie (No. 98-85), which involves the same parties. 

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The action filed by Cromartie was stayed by consent awaiting further proceedings in the Shaw litigation, which had been remanded to the lower court. That court granted the State legislature an opportunity to redraw the State’s congressional plan to correct its constitutional defects; and on Marc), 31 1997, the North Carolina General Assembly enacted a new congressional redistricting plan, 1997 Session Laws, Chapter [1 (“the 1997 plan”). The 1997 plan was precleared by the Department of Justice for use in the 1998 and subsequent elections; and in September 1997 it was accepted by the lower court as a remedy for the claim asserted by the Shaw plaintiffs, who under the 1997 plan were no longer residents of the Twelfth District. 

Shortly thereafter, the stay in the action brought by Cromartie was dissolved; and an amended complaint was filed, which alleged that the 1997 redistricting plan was also an unconstitutional racial gerrymander and that race had predominated in drawing both its First District and its Twelfth District. The amended complaint included as plaintiffs registered voters both of the First and the Twelfth Disiricts. 

After a hearing on March 31, 1998, the three-judge district court before which the casc was pending granted summary judgment for the plaintiffs as to the Twelfth Congressional District and enjoined the defendants from conducting any primary or general election under the 1997 redistricting plan. The state defendants gave notice of appeal and also applied unsuccessfully to the district court and to this Court for an Cmergency stay of the injunction. Subsequently, the State defendants filed a Jurisdictional Statement in this Count, Huni v. Cromartie (No. 98-85); and in response the 

  

  

See Appendix la, 4a, 45a of the Jurisdictional Staternent filed in Hunt v. Cromartie (No. 98-85).   
 



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plaintiffs have filed a Motion to Dismiss or, in the Alternative, 
to Affirm, which is now pending. 

Instead of immediately undertaking to drafl its own 
redistricting plan in order to remedy the constitutional defects, 
the three-judge district court allowed the General Assembly an 
opportunity to enact siill another redistricting plan. On May 
21, 1998 a new plan (“the 1998 plan’) was enacted, which was 
to be used for the 1998 and 2000 elections, unless this Court 
reverses the district court decision holding the 1997 plan 
unconstitutional. See 1998 N.C. Sess. Laws, Ch.2. Afier the 
Department of Justice had precleared this plan, the plaintiffs 
filed an opposition and objection to that plan; and the 
defendants responded thereto. 

On June 22, 1998, the three-judge district court 
approved this plan "with respect to the 1998 congressional 
elections,” because the court "concludes that on the record now 
before us that race cannot be held to have been the predominant 
factor in redrawing District 12.” (Appendix at 3a.) However, 
the district court reserved “jurisdiction with regard to the 
constitutionality of District I under this plan and as to District 
12 should new evidence emerge,” and it directed that the case 
“should therefore proceed with discovery and trial 
accordingly." (App. at 5a.) The plaintiffs gave notice of 
appeal with respect to this order. 

ARGUMENT 

Introduction 

This appeal is taken to present for the Court’s decision 
questions which concern the obligations of the three-judge 

  

' Subsequently, a discovery schedule has been approved by the district 
court. 

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district court in determining whether to accepl a new 
redistricting plan as an adequate remedy for defects in two 
earlier plans held to be unconstitutional racial gerrymanders, 
The context for these questions is provided by the language of 
the order entered below denying the requested injunction. 
There the three-judge district court stated: 

Because the Court cannol now say that race was 
the predominant faclor in the drawing of 
District 12 in the 1998 congressional districting 

» plan, the revised plan is not in violation of the 
United States Constitution, and the 1998 
congressional elections should proceed as 
scheduled in the Court's April 21 order. 

(App. at 1a.) Later in the order, the court commented that it 
- “now concludes thal on the record now before us that race 

cannot be held to have been the predominant factor in 
redrawing District 12." (App. at 3a.) 

Some months earlier, in rendering its memorandum 
opinion holding unconstitutional the State’s 1997 redistricting 
plan, the court explained its methodology in considering a 
remedial plan.* Citing Wise v. Lipscomb, 437 U.S. 535 (1978), 
) opinion states: 

Thus, when the federal courts declare an 
apportionment scheme unconstitutional — as the 
Supreme Court did in Shaw II - it is 
appropriate, ‘whenever practicable, to afford a 

  

This memarandum opinion appears at pages 1a-23a of Ihe jurisdictional 
statement submitted by the defendants, who were then appellants, in their 
jurisdictional statement in Hunt v. Cromartie (No. 98-85). 

  

 



  

7 

reasonable opportunity for the legislature to 

meet constitutional requirements by adopting a 
substitute measure rather than for the federal 

court to devis2 and order into effect its own 

plan. The new legislative plan, if forthcoming, 
will then be the: governing law unless it, too, is 

challenged and found to violate the 
Constitution.’ 

Wise, 437 U.S. at 540. 

As the district zourt’s language reveals, it reasoned that 

after a new redistricting plan has been enacted, those who wish 
to challenge it must start anew and the plan is to be viewed as 

if it had been written on a clean slale. No effort was made by 

the court to examin: what “vesliges” of the prior racial 
gerrymanders might remain. The first question presented in this 

appeal arises out of the district court’s failure to recognize or 
perform its duty of assuring that the "vestiges" of the 

unconstitutional 1992 and 1997 racial gemymanders were 
eliminated. 

The second question concerns the burden of proof. 
When the plaintiffs expressed their opposition to the 1998 plan, 

the district court placed on them the burden to demonstrate that 
race had been the predbminant motive in redrawing District 12. 
Instead, the burden should have been placed on the defendants 
to show that race had not been the predominant factor; and use 
of the plan should not have been allowed unless the court 
concluded on the record before it that race had not been the 
predominant factor in redrawing Disirict 12. 

These errors on the part of the court below caused it to 
deny the temporary and permanent injunctions which plaintiffs 

sought. If these omissions on the district court’s part are 
repeated at the forthcoming trial which that court has ordered, 

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the plaintiffs will be further prejudiced in obtaining the relief to which they are entitled. Moreover, the questions presented 
in this appeal have added importance because they will arise in other litigation involving the adequacy of a new redistricting plan as a remedy for a plan that a court has held to be an unconstitutional racial gerrymander. 

I The Court Below Had the Duty to Determine That 
No “Vestiges” of the Earlier Unconstitutional Plans 
Remained in the 1998 Plan, 

rotection guarantees, many federal district courts were 

& Afier racial segregation of schools was held to violate 
‘@® equal p 

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2 required to oversee the Process of school desegregation. As guidance for the district court overseeing desegregation of the Charlotte-Mecklenburg school system, this Court pointed out that once the equal protection violation had teen proved, the local school authorities and the district court were required to “eliminate .. . al vestiges of state-imposed segregation.” Swann v. Charlotte-Mecklenburg Bd. of Educ.,402 U.S. 1, 15 (197 1s 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 Dayron Bd. of Educ. v. Brinkman, 443 U.S. 526, 537 (1979). 

Consistent with these pronouncements, the Court of % ppeals for the Tenth Circuit ruled that once plaintiffs had E slablished a prima facie case of de Jure segregation, the = 

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defendant board of education had the duty to prove that its efforts to comply with desegregation orders had "eliminated all traces of past intentional segregation to the maximum feasible extent.” Brown v. Board of Education, 892 F.2d 851, 859 (10™ 
  

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

  

 



  

9 

Cir. 1989). Similarly, the Fifth Circuit has explained that the 

failure of school authorities to satisfy their obligation to 

eradicate the “vestiges” of de jure segregation is itself a 
constitutional violation. See Taylor v. Ouachita Parish School 
Board, 648 F.2d 959, 967-68 (1981); see also Ross v. Houston 

Independent School Disirict, 699 F.2d 218, 225 (5* Cir. 1983) 

(a school system “must eradicate, root and branch, the weeds of 
discrimination”). Implementing the same policy of eradicating 

the “vestiges” of the equal protection violation implicit in 
racially-segregated schools, the Court of Appeals for the Fourth 
Circuit stated that once the violation had been established, a 

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.” School Bd. of the 
City of Richmond v. Baliles, 829 F.2d 1308, 1311 (4th Cir. 

1987). See also Vaughan v. Board of Educ., 758 F.2d 983, 991 
(41h Cir. 1985). 

A helpful analogy is provided by cases discussing the 

effects of the violation of due process rights. Recognizing that 
evidence which is the “fruit of the poisonous tree” is 

inadmissible without regard to its credibility, the Court held 
that a confession obtained shortly after an unconstitutional 
search and arrest could not be received as evidence. See 
Nardone v. United Slates, 308 U.S. 338 (1939).¢ Similarly, a 
confession is inadmissible if it is the “fruit” of an illegal arrest 
which has preceded it. See Brown v. lllinois, 422 U.S. 590 
(1975); Dunaway v. New York, 442 U.S. 200, 216-19 (1979); 
Taylor v. Alabama, 457 U.S. 687 (1982). 

It seems only logical that the right of a voter to 

  

¢ Wong Sun v. United States, 371 U.S. 471 (1963), which first used the 

term "fruit of the poisonous tree,” involved only a statutory violation rather 
than a violation of the Constitution. 

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participate in an electoral process untainted by equal prolection violations should be given at least as much protection as the right of schoolchildren to be freed from the effects of racially segregated schools or of criminal defendants to be shielded from the use of evidence that was the “fruit” of violations of the Fourth Amendment. Indeed, if the right to vote is the mosl fundamental right of citizenship in a democracy ~ which seems indisputable - it should recejve €ven more protection than other constitutional rights. Although appellants recognize that the Court is concerned that the judiciary not interfere unduly with the work of state legislatures or of the Congress, cf. Wise v. ipscomb, supra, the cited precedents plainly support the Proposition that the three-judge district court had the responsibility to assure thal “vestiges” of an earlier racially gerrymandered redistricting Plan are eliminated and that a replacement plan is not the “fruit* of the earlier unconstitutional plan,’ 

Although in the Shaw litigation the Court imposed the requirement that plaintiffs demonstrate that race was the predominant motive for creating the Twelfth District in the 1992 plan, appellants submit that a different test should be applied in determining whether a replacement plan retains “vestiges” of the earlier plan. Usually, in determining whether questioned legislation violates equal protection, the issue is whether that legislation would have been enacted in the 

  

The Court has also made clear that persons guilty of a breach of trust should nol retain the benefits of that breach. See, e.g., Snepp v. United Staies, 444 \j.S, 507, 515 (1980) (imposing a constructive trust on proceeds received by a former CIA employee in violation of his contract with that agency.) Here, political benefits resulting fram a constitutional violation are being retained by persons who participated in the violation and their retention is teing justified under the guise of "incumbent protection’ and “maintaining partisan balance.” 

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absence of a race-based purpose. See Village of Arlington 

Heights v. Metropolitan Dev. Corp., 429 U.S. 252, 265-66 

(1977); cf. Hunter v. Underwood, 471 U.S. 222 (1985); Mt. 

Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 

(1977), Washington v. Davis, 426 U.S. 229 (1976). Only if the 
Arlington Heights test is employed can a district court be 

assured that the “taint” of an earlier racial gerrymander has been 
eliminated. Moreover, having already deprived its voters of 
equal protection by an unconstitutional racial gerrymander - 

and in North Carolina's case two such gerrymanders — the 
legislature cannot complain if the Court applies to its most 

recent replacement plan the standard usually employed in 
determining whether equal protection requirements have been 
violated. 

In any event, nothing in the opinion of the court below 

reflects any awareness on its part of its responsibility to assure 
that “vestiges” of the racially-gerrymandered 1992 plan were 

not still present in the 1998 plan® Indeed, had the Court 
considered whether those “vestiges” were still present, it would 
quickly have concluded thal the 1998 plan reflects no genuine 
attempt to eliminate “vestiges” of the 1992 plan, which this 
Court analogized to “apartheid” and ruled unconstitutional. 
Even a visual comparison of the 1998 plan with the 1992 plan, 

which this Court held unconstitutional, with the 1997 plan, 

which the district court held unconstitutional, reveals that the 

  

' Even though this Court did not rule on the constitutionality of the First 

District in the 1992 plan because of a lack of standing of the Shaw 

plaintiffs, Cremartie and his fellow plaintiffs — who are now appellants - 

have consistently claimed that the original First District was an 

unconstilutional racial gerrymander. If that premise is correct - which 

seems obvious in light of the District's demographics and lack of 

geographical compactness — the lower court was also under a duty to assure 

that the First District as it exists in the 1998 plan has none of the "vestiges" 
of the zarlier First District and is not the “fruit” of that poisonous tree. 

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Current plan retains many “vestiges” of its predecessors. For = example, the Twelfil District still is not “geographically a:  ‘ompacl.” Although not all of its counties are divided — as was frue in the 1992 and 1997 plans - four of its five counties are split in the new Plan; and this ratio js higher than for any of North Carolina's eleven other districts ® 

The 1998 plan still links two of the State's most populous counties, Mecklenburg and Forsyth ~ which are in different Metropolitan Statistical Areas (MSAs) and different media markets and which, until 1992, had not been in the same 

than in any of the three counties which are used to link Mecklenburg with Forsyth. Thus - just as in the 1992 plan, held unconstitutional in Shay - a predominantly rural, "white corridor” was created to link artificially two unrelated black- concentrated urban cores located in Separate metropolitan areas! fF urthermore, apart from Guilford County, which was 

  

  

  

Lo umerous counties - was a flagrantly unconstitutional racial gerrymander —but also thay jis continuing “taint” is obvious in the First District of the 1997 tn and 1998 plans. 
wo Foranother example of the use of such corridors, see Miller v. Johnson, 515 U.S. 900 (1995).   
 



  

13 

totally removed from District 12, only three precincts having 
forty percent or more African-American population were 
removed fiom the 1997 plan’s District 12 when the 1998 plan 
was redrawn." 

If percentages of African-American population are 
reflected on a map of the state's urban areas — areas which are 
for the most part in the Piedmont” - it becomes readily 
apparent that the black population is sufficiently dispersed thal 
no urban district can be drawn which will conform with 
traditional race-neutral redistricting principles and yet will have 
a population which is much more than 25% African-American. 
Any significantly higher concentration of African-Americans 
within a single district in the Piedmont - where they are 
primarily located in urban areas - is an obvious “vestige” of the 
unconstitutional 1992 and 1997 plans. Over 35% of the 
population of the “new” Twelfth District is African-American -- 
a percentage which can only be explained as the result of a 
predominant purpose to group voters by race across scparate 
metropolitan areas. 

In its memorandum opinion of April 14, 1998, which 
invalidated the 1997 redistricting plan, the three-judge district 
court stated that, in redrawing the plan, “the legislature may 
consider traditional districting criteria, including incumbency 
considerations, to the extent consistent with curing the 

  

"Guilford County, which has several precincts with a high percentage of 

African-Americans was (otally removed from the Twelfth Districl. 

Ironically, Guilford County — unlike Mecklenburg County ~ is in the same 

Metropolitan Statistical Area (MSA) and same television market (DMA) as 

the adjacent Forsyth County; and also it is tke only county in the 1997 

version of District 12 that was subject to preclearancs under Section 5 of 
the Voting Rights Act. See 42 U.S.C. § 1973c. 

'" Appellants lodged such maps with the Court in Hunt v. Cromartie (No. 
98-85) in which they were the appellees. 

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=  conslitutional defects "3 Presumably, when the district court permitted use of the 1998 plan for the current elections, it was ol continuing to allow legislators lo rely on “incumbency considerations” - to which the General Assembly admittedly had given great weight in drawing that plan. 
Although appellants recognize that in the first instance a legislature may consider “incumbency” in redistricting, allowing “incumbency” to . be considered when the or Representatives in office have been elected pursuant to a ™ racially-germrymandered plan is inconsistent with eliminating S he “vestiges” of that plan. The flagrantly unconstitutional 

oO 

district created with the express objective of assuring election “- of an African-American to Congress from that district. To allow a plan to be drawn which has as iis purpose - or even considers - the protection of this Representative's race-based incumbency is at odds with removing the “taint” of the 1992 plan." An acknowledged goal of the General Assembly was to "maintain the partisan balance of the Stale’s congressional delegation.” (App. at 4a) Maintaining a "partisan balance” which has resulted from elections conducted under an unconstitutional race-based Plan also is at odds with removing a of the earlier gerrymandering." Indeed, in North 

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See Hunt v. Cromartie (No. 98-85), Appendix to J.S., at 22a. "Of course appellants are not contending that this incumbent should be disqualified from running or that an effort should be made to penalize him; tut the General Assembly’s effort to help him attain reelection conflicts with the basic goal of removing unconstitutional “vestiges.” Also it induces in vofers a loss of hope for participating in the electoral process. "* The same can be said with respect to the General Assembly’s purpose “to keep incumbents in Segregated districts and preserve the cores of those 

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Caro. ina, which now has six Democratic incumbents and six 
Republican incumbents, “maintaining partisan balance” is a 
euphemism for retaining the status quo, keeping in office 
incumbents elected pursuant to a race-based redistricting plan, 
and thereby perpetuating the unconstitutional results of the 
gerrymandering." 

As seems clear from its opinions, the thres-judge 
district court did not recognize its duty to assure that the 1998 

plan was not the "fruit of the poisonous tree.” Had it done so, 
the court would have concluded readily that the 1998 plan was 

itself’ unconstitutional because it retained "vestiges* of ils 
predecessor plans. In view of pending proceedings in this case 
—- including a trial — the Court should provide clear guidance to 

the three-judge district court that it must satisfy itself that the 
“taint” of the 1992 race-based plan has been finally removed. 
This guidance also will greatly benefit other courts called upon 
to evaluate redistricting plans which replace plans held 
unconstitutional. 

II. The District Court Should Have Placed on the State 

Defendants the Burden of Proving That the 1998 
Plan Was Not Race-Based. 

In its order allowing the congressional elections to 

proceed pursuant to the 1998 plan, the three-judge district court 

  

districts." (App. al 4a.) In this context, “cores” is the functional equivalent 

of '"vesliges’; and protecting “cores” of racially gerrymandered 

congressional districts is no more to be tolerated than preserving the 
“vestiges” of racially segregated schools. 

' Understandably the use of such euphemism heightens public cynicism 
about the purpose and value of elections. Moreover, in the present contex| 

to accept the logic of “incumbency considerations” would permil 

reenactment of the most flawed racially gerrymandered plan for the alleged 
purpose of prolecting incumbents elected pursuant to that plan. 

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stated, “[b)ecause the Court cannot now say thal race was the predominant factor in the drawing of District 12 jn the 1998 congressional districting plan, the revised plan is not in violation of the Unijled States Constitution.” (App. at la.) Appellants have already pointed out that in dealing with a plan which replaces a racially gerrymandered plan, the standard should be hat of Arlington Heights - whether the plan would have been adopted absent the racial motive - rather than whether "race was the predominant facior,”!? 
However, even if the test is still to be whether a racial molive predominaled, the State defendants ~ who committed the constitutional violations - should bear the burden to establish that race was nor the predominant motive; and the burden should not have been placed on the plaintiffs to establish that race stil predominated in drawing District 12. This conclusion is a logical corollary of the principle that “vestiges” of the unconstitutional plan should be eliminated. Thus, in comparable cases involving school desegregation, the burden was placed on the defendants to prove that they had eliminated the constitutional violation. Cf. School Bd. of Richmond v. Baliles, 829 F.2d at 131 1; Vaughan v. Board of Educ., 758 F.2d at 99 hig 

  

In Hise v. Lipscomb, 437 U.S. at 540, the Court stated, “The new islative plan, if forthcoming, will then be the governing law unless it, loo, is challenged and found to violate the Constitution.” However, appellants do not interpret this statement to mean that when the new plan "is challenged,” tha challenge will be considered as if there had been no preceding violation. Not to consider the prior violations would conflict with the principle that *vestiges® of an unconstitutional plan should be eliminated and 2lsp would facilitate evasion of equal proteclion guaraniees. 
Similarly, the burden of Proof seems 10 have been placed on the prosecution to demonstrate that the “aint” arising out of an illegal arrest in violation of the Fourth Amendment had been eliminated prior to obtaining 

  

 



  

17 

The misallocation of burden of proof helped lead the 
court below to an erroneous result. It is especially important 
that this error not be repeated in future proceedings in this case 
or duplicated in other litigation which concerns the remedying 
of unconstitutional racial gerrymanders. 

CONCLUSION 

The three-judge district court erred in denying 
appellants their requested injunction against use of the 1998 

redistricting plan in any congressional primary or election. 
Therefore, its order should be set aside and the Court should 

provide clear guidance to the court below as to its full scope of 
its responsibilities in reviewing the 1998 plan. This guidance 

also will help other courts avoid similar errors in future 
redistricting cases. 

Respectfully submitted, this the 15" day of September, 
1998. 

ROBINSON O. EVERETT* 

MARTIN B. McGEE 

Attorneys for the Appellants 

*Counsel of Record 

  

a confession. See Taylor v. Alabama, 457 U.S. at 690; Dunaway v. New 

York, 442 U.S. al 216-19; Brown v. lllinois, 422 U.S, al 603-4. 

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APPENDIX 

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TABLE OF CONTENTS 

ORDER OF UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF 
NORTH CAROLINA, JUNE 22,1998 ......... la 

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NOTICE OF APPEAL TO THE SUPREME COURT 
OF THE UNITED STATES, FILED JULY 17, 
1008. J idnsnicinn sass urs vniets snsnns sini 6a 

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la 

ORDER OF UNITED STATES DISTRICT COURT FOR 
THE EASTERN DISTRICT OF NORTH CAROLINA, 
JUNE 22, 1998 

[C aption omitted in printing] 

This matter is before the Court on the Defendants’ 
submission of a congressional districting plan for the 1998 
congressional elections (the “1998 plan’). By Order dated 

April 21, 1998, this Court directed the North Carolina General 
Assembly to enact legislation revising the 1997 congressional 
districting plan and. to submit copies to the Court. The General 

Assembly enacted House Bill 1394, Session Law 1998-2, 

redistricting the State of North Carolina's twelve congressional 
districts, and the Defendants timely submitted the 1998 plan to 

the'Court. The Plaintiffs subsequently filed an opposition and 
objections to the 1998 plan, and the Defendants have responded 
to the Plaintiffs’ objections. On June 8, 1998, the United States 
Department of Justice precleared the 1998 plan pursuant to 
Section 5 of the Voting Rights Act of 1965,42 U.S.C. § 1973c, 

and this Court must now decided whether the 1998 plan 

complies with the Equal Protection Clause of the United States 
Constitution. | 

Because the Court cannot now say that race was the 
predominant factor in the drawing of District 12 in the 1998 
congressional districting plan, the revised plan is not: in 

violation of the United States Constitution, and the 1998 
congressional elections should proceed as scheduled in the 
Court’s April 21 Order. 

%* k ok Xk 

In Shaw v. Hunt, the United States Supreme Court 

considered challenges 1o North Carolina's 1992 congressional 

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districting plan (the *1992 plan”) and held that the Twelftl Congressional District ("District 12") in the 1992 plan was drawn with race as the predominant factor, that the districting plan was not narrowly tailored to serve a compelling state interest, and that the 1997 plan violated the Equal Protection Clause. 509 U.S. 630,113 S.Ct. 2816, 125 L.Ed.2d 511 (1993) (“Shaw I"); 517 U.S, 899, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996) ("Shaw nr). 

After the North Carolina General Assembly redrew the op State’s congressional districting plan in 1997, the Plaintiffs in his action challenged the constitutionality of the 1997 plan in this Court. Specifically, the Plaintiffs argued that the Twelfth and First Congressional Districts were unconstitutional racial germymanders. Each party moved for summary Judgment, and in an Order dated April 3, 1998, the Court granted summary judgment in favor of the Plaintiffs with respect to District 12, Like the Supreme Court ip Shaw, this Court held that race was the predominant factor in the drawing of District 12 in the 1997 plan, and that the district was violative of Equal Protection. In its April 3 Order, the Court instructed the Defendants to submit a new plan in which race was not he predominant factor in the drawing of District (2. 

The Court found that neither party could prevail as a tter of law with respect to District 1, and denied summary Judgment as 1o that district. Neither this Court nor the Supreme Court in Shaw has made a legal ruling on the conslitutionality of District 1 under the 1992, 1997, or 1998 congressional districting plans. 

+ % 2 

In Wise v. Lipscomb the Supreme Court advised that “[wlhen a federal court declares an existing apportionment 

    

 



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scheme unconstitutional, it is . . . appropriate, whenever 
practicable, to afford a reasonable opportunity for the 

legislature to meet constitutional requirements by adopting a 
substitute measure rather than for the federal court to devise 
and order into effect its own plan.” 437 U.S. 535, 540, 98 S.Ct. 

2493, 2497, 57 L.Ed2d 411 (1978). In reevaluating a 
substitute district plan, the court must be cognizant that "a 

state’s freedom of choice to devise a substitute for an 

apportionment plan found unconstitutional, either in whole or 
in part, should not be restricted beyond the clear commands of 
the Equal Protection Clause. Id. (quoting Burns v. 

Richardson, 384 U.S. 73, 85, 86 S.Ct. 1286, 1293, 16 L.Ed.2d 

376 (1966)). Finally, as the Supreme Court has noted, because 
"federal court review of districting legislation represents a 

serious intrusion on the most vital of Jocal functions,” this 
Court must “exercise extraordinary caution in adjudicating” the 

issues now before it. Miller v. Johnson, 515 U.S. 900,916,115 
S.Ct. 2475, 2488, 132 L.Ed.2d 762 (1995). 

Because this Court held only that District 12 in the 1997 - - 
plan unconstitutionally used race as the predominant factor in 
drawing District 12, the Court is now limited to deciding 

whether race was the predominant factor in the redrawing of 
District 12 in the 1998 plan. In reviewing the General 
Assembly’s 1998 plan, the Court now concludes that on the 

record now before us that race cannot be held to have been the 
predominant factor in redrawing District 12. In enacting the 

1998 plan, the General Assembly aimed to specifically address 
this Court’s concerns about District 12. Thus, the present 
showing supports the proposition that the primary goal of the 
legislature in drafting the new plan was “to eliminate the 
constitutional defects in District 12.” Aff. of Gerry F. Cohen. 

The State also hoped to change as few districts as possible, to 
maintain the partisan balance of the State's congressional 
delegation, to keep incumbents in separate districts and 

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preserve the cores of those districts, and to reduce the division of counties and cities, especially where the Court found the divisions were based on tacial lines. Md. 

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With the foregoing in mind, the General Assembly successfully addressed the concerns noted by the Court in its Memorandum Opinion for the purposes of the instant Order. Thus, the 1998 plan includes a Twelfih Congressional District with fewer counties, fewer divided counties, a more “regular” geographic shape, fewer divided towns, and higher dispersion and perimeter compactness measures. District 12 now contains five, rather than six, counties, and one of those counties js whole. District 12 no longer contains any part of the City of | Greensboro or Guilford County. The 1998 plan no longer divides Thomasville, Salisbury, Spencer, or Statesville. The new plan also addresses the Court’s concem that it not assign precincts on a racial basis. While the Court noted in jts Memorandum Opinion tha the 1997 plan excepted form District 12 many adjacent “voling precincts with less than 35 percent African-American population, but heavily Democratic voting registrations,” the 1998 plan includes fourteen precincts in Mecklenburg County in which previous Democratic performance was sufficient lo further the State’s interest in maintaining the partisan balance within the congressional delegation. The General Assembly also added several F orsyth County precincts to smooth and regularize the District’s @oundavics These changes resulted in a total African- American population in District 12 of 35 percent of the total population of the district, down from 46 percent under the 1997 plan. 

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Based on the foregoing, the Court now accepts the 1998 plan as written. The 1998 congressional elections will thus proceed under this plan, as scheduled in this Court’s April 21, 

  

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1998, Order. As noted above, neither this Court nor any other 
has made a legal ruling on the constitutionality of District I. 
The 1998 plan is only approved with respec! lo the 1998 

"congressional elections, but the Court reserves jurisdiction with 
regard to the constitutionality of District 1 under this plan and 
as to District 12 should new evidence emerge. This matler 

should therefore proceed with discovery and trial accordingly. 

The parties are ordered to submit proposed discovery schedules 
to the Court on or before June 30, 1998. ; 

SO ORDERED. 

This 19" day of June, 1998. 

SAM J. ERVIN, 111 

United States Circuit Judge 

TERRENCE W. BOYLE 

Chief United States District Judge 

RICHARD L. VOORHEES 
United States District Judge 

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6a 

NOTICE OF APPEAL TO THE SUPREME COURT OF THE UNITED STATES 

Nolice is hereby given that Martin Cromartie, ef al, the plaintiffs above-named, hereby appeal to the Supreme Court of the United States from the Order of the three-judge District Court dated June 19, 1998, approving the 1998 congressional redistricting plan for use in the 1998 congressional elections in accordance with the schedule provided in the Court’s April 21, 
1998 Orde;. 

This appeal is taken pursuant to 28 U.S.C. § 1253. 

Respectfully submitted, this the 17* day of July, 1998. 

/s/ Robinson O. Everett 

/s/ Martin B. McGee 

  

  
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No. 98 -450 

  
  

IN THE SUPREME COURT OF TIIE 
UNITED STATES 

October Term, 1997 

  

MARTIN CROMARTIE, et al, 
Appellants, 

Vv. 

JAMES B. HUNT, JR., in his official 

capacity as Govemor of the 
State of North Carolina, ef al., 

Appellees. 

| 

  

ON APPEAL 
FROM THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

  

  

JURISDICTIONAL STATEMENT 

MARTIN B. McGEE ROBINSON O. EVERETT* 
Williams, Boger, Grady Everett & Everett 

Davis & Tutile, P.A. P.O. Box 586 
P.O. Box 810 Durham, NC 27702 
Concord, NC 28026-0810 (919)-682-5691 
(704)-782-1173 

* Counsel of Record 

  
  

   



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QUESTIONS PRESENTED 

After the 1992 and 1997 redistricting plans had been 
held unconstitutional as racial gerrymanders and the 
General Assembly had enacted a new plan, was the 
district court required to determine thai any 
unconstitutional vestiges of tlie earlier plan bad been 
removed before allowing the 1998 plan to be used in 
elections? 

In determining whether the 1998 plan was an adequate 
remedy for the unconstitutional defects of the 1992 and 
1997 racial gerrymanders, should the three-judge 
district court have placed on the State defendants the 
burden of proving that race did not predominate as a 
motive in drawing Districts 1 and 12? 

    
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LIST OF PARTIES 

MARTIN CROMARTIE, THOMAS CHANDLER MUSE, 
R.O. EVERETT, JH. FROELICH, JAMES RONALD 
LINVILLE, SUSAN HARDAWAY, ROBERT WEAVER and 
JOEL K. BOURNE are appellants in this case and were 
plaintiffs below; 

JAMES B. HUNT, JR,, in his official capacity as Governor of 
the State of North Carolina, DENNIS WICKER in his official 
capacity as Lieutenant Govemor of the State of North Carolina, 
HAROLD BRUBAKER in his official capacity as Speaker of 
the North Carolina House of Representatives, ELAINE 
MARSHALL in her official capacity as Secretary of the State 
of North Carolina, and LARRY LEAKE, S. KATHERINE 
BURNETTE, FAIGER BLACKWELL, DOROTHY 
PRESSER and JUNE YOUNGBLQOOD in their capacity as the 
North Carolina State Board of Elections, were defendants 
below and are appellees in this case. 

ALFRED SMALLWOOD, DAVID MOORE, WILLIAM M. 
HODGES, ROBERT L. DAVIS, JR, JAN VALDER, 
BARNEY OFFERMAN, VIRGINIA NEWELL, CHARLES 
LAMBETH and GEORGE SIMKINS were allowed to 
intervene of right as defendants at the time of the order 
appealed from; and as defendant-intervenors they are included 
as appellees. 

Apart from the defendant-intervenors who are inciuded as 
appellees in this appeal, the parties in this case are the same as 
in the separate appeal filed earlier in Hunt v. Cromartie, No. 
98-85, in which the present appellants, Cromartie, ef al., who 
were plaintiffs in the three-judge district court, were appellees 
and the present appellees, Hunt, er al., who were defendants 
below, were appellants. 

    

 



  TABLE OF CONTENTS 

QUESTIONS PRESENTED iii. aa abs i 

WSTOFPARTIES . .. &....., 0.00 oe 7 ii 

TABLE OF AUTHORITIES... .../...... ....° iv 

OPINION BELOW... ss iain, wo 2 

JURISDICTION ........ a ai sa 2 

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED ’ rien sain Seeis nti 

SIATEMENTOPTHECASE .ovu. oii 3 

ARGUMENT she vs tess oe vo nda 0 Ls 5 

INTRODUCTION. o.oo. 5 

I. THE COURT BELOW HAD THE DUTY TO 
DETERMINE THAT NO "VESTIGES" OF THE 
EARLIER UNCONSTITUTIONAL PLANS 
REMAINED IN THE 1998 PLAN .......... 8 

I. THE DISTRICT COURT SHOULD HAVE 
PLACED ON THE STATE DEF ENDANTS THE 
BURDEN OF PROVING THAT THE 1998 PLAN 
WAS NOT RACE-BASED sr tines sens mess iy 18 

CONCLUSION... 5... 4. os Beis inis nien’s sie ian a 17 

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Vv 

  

wo TABLE OF AUTHORITIES 
Sh 

or Brownv. Board of Educ., 892 F 24 851 (10th Cir. 1989) .. 8 

Brown v. Illinois, 422 U.S. 590 (1075) ..... 5..." 9.17 

Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526 (1979)... 3 

Dunaway v. New York, 442 US. 20001979) ...... ... 9.17 ad 

®P Hunt v. Cromartie, S. Ct. No. 98.88... Lu passim a 
«© 

SS Hunter v. Underwood, 471 U.S. 222 (1988) x, 0. ou [1 

= Miller v. Johnson, 515 US. 900 (1998). = mo 12 bao 
<C 

"Mt. Healthy City Sch. Dist. Bd of Educ. v. Doyle, 429 U.S. cro ivy Dine REIS Tn lel dn 11 

Nardone v. United States, 308 U.S. 338 (1339).......... 9 

= Ross v. Houston Ind. Sch. Dist , 699 F.2d 218 (Sth & in utetetiien. org ue LE I ie 9 

Q® Bd. of the City of Richmond v. Baliles, 829 F.2d 2 1308amCin 08. 280 = 9, 16 <I & 
| = Shaw v. Hunt, 517 U.S. 899 Q996Y..... 27. passim 

wo Snepp v. United States, 444 U.S. 507 (1980) ....... | 10 

= Swann v. Chay lotte-Mecklenburg Bd of Educ., 402 U.S. 1 (OY... pie. i Oa Cl 8 

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Taylor v. Alabama, 457 U.S. 687 (198... vis... 9 

Taylor v. Ouachita Parish Sch, Bd., 648 F.2d 959 
Alii of CECE Die SiO, | 

United States v. Lawrence County Sch. Dist., 799 F.2d 103] 
UCI 1986)... eb ii ia 8 

Vaughan v. Board of Educ., 758 F.2d 983 (4th Cir. 
1983) ou ten a 16 

Village of Arlington Heights v. Metropolitan Dev. Corp., 
429038. 2520197... hae TE 911,16 

Washington v. Davis, 426 U.S. 229 (1976) ....... .... 3 

Wise v. Lipscomb, 437 U.S. 535 (1978). 5% ..... 6.7, 10, 16 

Wong Sun v. United States, 371 U.S. 471 (1963) ........9 

 



    

  

vi 

o CONSTITUTIONAL AND STATUTORY PROVISIONS ANG 
LO 

i US. Const, Amend. xiv®,. 008 0. 0 0 2.3 

WUSC.31283 2... as a 2,3 

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oS N.C. Gen. Stat. § 163-2000)... iii iS j, 2 

» 1992 N.C. Sess Laws, Chl) . 0000. any 20 4 
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No. 08. 450 

IN THE SUPREME COURT OF THE 

UNITED STATES 

October Term, 1998 

  

MARTIN CROMARTIE, et al., 

Appellants, 

V. 

JAMES B. HUNT, JR,, in his official 

capacity as Governor of the 
State of North Carolina, ef al, 

Appellees. 

  

ON APPEAL 
FROM THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

  

JURISDICTIONAL STATEMENT 

  

Martin Cromartie and the other Plaintiffs below appeal 
from the Order of the United States District Court for the 
Eastem District of North Carolina, dated June 22, 1998, which 
denied to appellants the temporary and permanent injunction 
which they had sought to enjoin the State appellees from 
conducting any elections under the congressional redistricting 
plan enacted by the North Carolina General Assembly on May 
21, 1998. See 1998 N.C. Sess. Laws, Ch. 2, amending N.C. 
Gen. Stat. § 163-201 (a). Plaintiffs filed notice of appeal on July  



  

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17, 1998 and jurisdiction of this appeal is conferred on this 
Court by 28 U.S.C. § 1253. 

OPINION BELOW 

The June 22, 1998 opinion of the three-judge district 
court, which has not yet been reported, appears in the appendix 
to this jurisdictional statement at 1a. 

JURISDICTION 

The district court's order denying the injunction was 
entered on June 22, 1998. On July 17, 1998, appellants filed a 
notice of appeal to this Court. The jurisdiction of this Court is 
invoked under 28 U.S.C. § 1253. 

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED 

This appzal concems the constitutionality of 1998 N.C. 
Sess. Laws, Ch. 2, which amended N.C. Gen. Stat. § 163- 
201(a); copies of this Session Law were previously lodged with 
the Court by the present appellants in connection with the 
Motion to Dismiss or, in the Alternative, to Affirm which they 
filed in Hunt v. Cromartie (No. 98-85), where they are 
appellees. 

The present appeal involves the Equal Protection Clause 
of the Fourteenth Amendment which provides: 

All persons born or naturalized in the United 
States, and subject to the jurisdiction thereof, 
are citizens of the United States and of the State 
wherein they reside. No State shall make or 
enforce any law which shall abridge the 
privileges or immunities of citizens of the 

    

 



  

3 

United States; nor shall any State deprive any 
person of life, liberty, or property, without due 
process of law; nor deny to any person within 

its jurisdiction the equal protection of the laws. 

This appeal is taken pursuant to 28 U.S.C. § 1253 
which provides: : 

Except as otherwise provided by law, any party 
may appeal to the Supreme Court from an order 

granting or denying, after notice and hearing, an 
interlocutory or permanent injunction in any 
civil action, suit or proceeding required by any 

Act of Congress to be heard and determined by 
a district court of three judges. 

STATEMENT OF THE CASE! 

In Shaw v. Hunt, 517 U.S. 899 (1996) (“Shaw II"), the 

Court held that District 12 in North Carolina’s 1992 
congressional redistricting plan (“the 1992 plan”) violated the 
Equal Protection Clause because race predominated in the 
design of the Twelfth Congressional District, and the plan 
could not survive strict scrutiny. The Court declined to 
consider the constitutionality of the First District in the 1992 

plan because none of the plaintiffs had standing. Therefore, a 

separate action was initiated by Martin Cromartie and other 
registered voters in the First District to challenge its 
constitutionality. 

  

'! The present appellants have provided the Court a more detailed 

statement of the relevani facts in their Counterstatement centained in the 

Motion to Dismiss or, in the Alternative, to Affirm which they filed in Hum 
v. Cromartie (No. 98-85), which involves the same parties. 

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The action filed by Cromartie was stayed by consent 
awaiting further proceedings in the Shaw litigation, which had 
been remanded to the lower court, That court granted the State 
legislature an opportunity to redraw the State’s congressional 
plan to correct its constitutional defects; and on March 31, 
1997, the North Carolina General Assembly enacted a new 
congressional redistricting plan, 1997 Session Laws, Chapter 
LT (“the 1997 plan”). The 1997 plan was precleared by the 
Departruent of Justice for use in the 1998 and subsequent 
elections; and in September 1997 it was accepted by the lower 
court as a remedy for the claim asserted by the Shaw plaintiffs, 
who under the 1997 plan were no longer residents of the 
Twelfth District. 

Shortly thereafter, the stay in the action brought by 
Cromartie was dissolved; and an amended complaint was filed, 
which alleged that the 1997 redistricting plan was also an 
unconstitutional racial gerrymander and that race had 
predominated in drawing both its First District and its Twelfth 
District. The amended complaint included as plaintiffs 
registered voters both of the First and the Twelfth Districts. 

After a hearing on March 31, 1998, the three-judge 
district court before which the case was pending granted 
summary judgment for the plaintiffs as to the Twelfth 
Congressional District and enjoined the defendants from 
conducting any primary or general election under the 1997 
redistricting plan. The state defendants gave notice of appeal 
and also applied unsuccessfully to the district court and to this 
Court for an emergency stay of the injunction. Subsequently, 
the State defendants filed a Jurisdictional Statement in this 
Court, Hunt v. Cromartie (No. 98-85); and in response the 

  

2 See Appendix la, 4a, 45a of the Jurisdictional Statement filed in Hunt v. Cromartie (No. 98-85 ). 

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plaintiffs have filed a Motion to Dismiss or, in the Alternative, 
to Affirm, which is now pending. 

Instead of immediately undertaking to drafl its own 
redistricting plan in order to remedy the constitutional defects, 
the three-judge district court allowed the General Assembly an 
opportunity to enact siill another redistricting plan. On May 
21, 1998 a new plan (“the 1998 plan’) was enacted, which was 
to be used for the 1998 and 2000 elections, unless this Court 
reverses the district court decision holding the 1997 plan 
unconstitutional. See 1998 N.C. Sess. Laws, Ch.2. Afier the 
Department of Justice had precleared this plan, the plaintiffs 
filed an opposition and objection to that plan, and the 
defendants responded thereto. 

On June 22, 1998, the three-judge district court 
approved this plan "with respect to the 1998 congressional 
elections,” because the court “concludes that on the record now 

before us that race cannot be held to have been the predominant 
factor in redrawing District 12.” (Appendix al 3a.) However, 
the district court reserved “jurisdiction with regard to the 
constitutionality of District I under this plan and as to District 
12 should new evidence emerge,” and it directed that the case 

“should therefore proceed = with discovery and tial 
accordingly." (App. at 5a.) The plaintiffs gave notice of 
appeal with respect to this order. 

ARGUMENT 

Introduction 

This appeal is taken to present for the Court’s decision 

questions which concern the obligations of the three-judge 

  

! Subsequently, a discovery schedule has been approved by the district 
court.    N

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district court in determining whether to accept a new 
redistricting plan as an adequate remedy for defects in two 
earlier plans held to be unconstitutional racial gerrymanders. 
The context for these questions is provided by the language of 
the order entered below denying the requested injunction. 
There the three-judge district court stated: 

P.
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Because the Court cannot now say that race was 
the predominant factor in the drawing of 
District 12 in the 1998 congressional districting 
plan, the revised plan is not in violation of the 
United States Constitution, and the 1998 
congressional elections should proceed as 
scheduled in the Court’s April 21 order. 

(App. at 1a.) Later in the order, the court commented that jt 
“now concludes thal on the record now before us that race 
cannot be held to have been the predominant factor in 
redrawing District 12." (App. at 3a.) 

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Some months earlier, in rendering its memorandum 
opinion holding unconstitutional the State’s 1997 redistricting 
plan, the court explained its methodology in considering a 
remedial plan.* Citing Wise v. Lipscomb, 437 U.S. 535 (1978), 
the opinion states: 

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Thus, when the federal courts declare an 
apportionment scheme unconstitutional — as the 
Supreme Court did in Shaw II - it is 
appropriate, ‘whenever practicable, to afford a 

  

This memarandum opinion appears at pages 1a-23a of the jurisdictional 
statement submitted by the defendants, who were then appellants, in their 
jurisdictional statement in Hunt v. Cromartie (No. 98-85). 

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reasonable opportunity for the legislature to 

meet constitutional requirements by adopting a 
substitute measure rather than for the federal 

court lo devis2 and order into effect its own 
plan. The new legislative plan, if forthcoming, 
will then be the: governing law unless it, too, is 

challenged and found to violate the 

Constitution.’ 

Wise, 437 U.S. at 540. 

As the district court’s language reveals, it reasoned that 

afler a new redistricting plan has been enacted, those who wish 

to challenge it must start anew and the plan is to be viewed as 

if it had been written on a clean slate. No effort was made by 

the court to examin: what “vesliges” of the prior racial 
germrymanders might remain. The first question presented in this 
appeal arises out of the district court’s failure to recognize or 
perform its duty of assuring that the “vestiges" of the 

unconstitutional 1992 and 1997 racial gerrymanders were 
eliminated. 

The second question concerns the burden of proof. 
When the plaintiffs expressed their opposition to the 1998 plan, 

the district court placed on them the burden to demonstrate that 
race had been the predominant motive in redrawing District 12. 
Instead, the burden should have been placed on the defendants 
to show that race had not been the predominant factor; and use 

of the plan should not have been allowed unless the court 
concluded on the record before it that race had not been the 
predominant factor in redrawing Disirict 12. 

These errors on the part of the court below caused it to 
deny the temporary and permanent injunctions which plaintiffs 

sought. If these omissions on the district court’s part are 
repeated at the forthcoming trial which that court has ordered, 

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the plaintiffs will be further prejudiced in obtaining the relief 
to which they are entitled. Moreover, the questions presented 
in this appeal have added importance because they will arise in 
other litigation involving the adequacy of a new redistricting 
plan as a remedy for a plan that a court has held to be an 
unconstitutional racial genrymander. 

I The Court Below Had the Duty to Determine That 
No “Vestiges” of the Earlier Unconstitutional Plans 
Remained in the 1998 Plan. 

Afier racial segregation of schools was held to violate 
equal protection guarantees, many federal district courls were 
required to oversee the process of school desegregation. As 
guidance for the district court overseeing desegregation of the 
Charlotte-Mecklenburg school system, this Court pointed out 
that once the equal protection violation had teen proved, the 
local school authorities and the district court were required to 
“eliminate... . all vestiges of state-imposed segregation.” Swann 
v. Charlotte-Mecklenburg Bd. of Educ.,402 U.S. 1, 15 (1971)3 
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). 

Consistent with these pronouncements, the Court of 
Appeals for the Tenth Circuit ruled that once plamtiffs had 
established a prima facie case of de Jure segregation, the 
defendant board of education had the duty to prove that its 
efforts to comply with desegregation orders had “eliminated all 
traces of past intentional segregation to the maximum feasible 
extent.” Brown v. Board of Education, 892 F.2d 851, 859 (10™ 

  

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

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Cir. 1989). Similarly, the Fifth Circuit has explained that the 

failure of school authorities to satisfy their obligation to 

eradicate the “vestiges” of de jure segregation is itself a 
constitutional violation. See Taylor v. Ouachita Parish School 
Board, 648 F.2d 959, 967-68 (1981); see also Ross v. Houston 

Independent School District, 699 F.2d 218, 225 (5 Cir. 1983) 
(a school system “must eradicate, root and branch, the weeds of 
discrimination”). Implementing the same policy of eradicating 

the “vestiges” of the equal protection violation implicit in 
racially-segregated schools, the Court of Appeals for the Fourth 
Circuit stated thal once the violation had been established, a 

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.” School Bd. of the 
City of Richmond v. Baliles, 829 F.2d 1308, 1311 (4th Cir. 

1987). See also Vaughan v. Board of Educ.,758 F.2d 983, 991 
(41h Cir. 1985). 

A helpful analogy is provided by cases discussing the 

effects of the violation of due process rights. Recognizing that 
evidence which is the “fruit of the poisonous tree” is 
inadmissible without regard to its credibility, the Court held 

that a confession obtained shortly after an unconstitutional 
search and arrest could not be received as evidence. See 

Nardone v. United States, 308 U.S. 338 (1939).¢ Similarly, a 
confession is inadmissible if it is the “fruit” of an illegal arrest 
which has preceded it. See Brown v. Illinois, 422 U.S. 590 
(1975); Dunaway v. New York, 442 U.S. 200, 216-19 (1979); 
Taylor v. Alabama, 457 U.S. 687 (1982). 

[t seems only logical that the right of a voter to 

  

§ Wong Sun v. United States, 371 U.S. 471 (1963), which first used the 

term “fruit of the poisonous tree,” involved only a statutory violation rather 

than a violation of the Constitution. 

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participate in an electoral process untainted by equal protection 
violations should be given at least as much protection as the 
right of schoolchildren to be freed from the effects of racially 
segregated schools or of criminal defendants to be shielded 
from the use of evidence that was the “fruit” of violations of the 
Fourth Amendment. Indeed, if the right to vote is the mos! 
fundamental right of citizenship in a democracy ~ which seems 
indisputable - it should receive even more protection than other 
constitutional rights. Although appellants recognize that the 
Court is concerned that the Judiciary not interfere unduly with 
the work of slate legislatures or of the Congress, cf. Wise v. 
Lipscomb, supra, the cited precedents plainly support the 
proposition that the three-judge district court had the 
responsibility to assure that “vestiges” of an earlier racially 
gerrymandered redistricting plan are eliminated and that a 
replacement plan is not the “fruit* of the earlier unconstitutional 
plan,’ 

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Although in the Shaw litigation the Court imposed the 
requirement that plaintiffs demonstrate that race was the 
predominant motive for creating the Twelfth District in the 

o> 1992 plan, appellants submit that a different test should be 
S applied in determining whether a replacement plan retains 
Xx  "vestiges” of the earlier plan. Usually, in determining whether 
tr. questioned legislation violates equal protection, the issue is 
ice that legislation would have been enacted in the 
<TC 

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"The Court has also made clear that persons guilty of a breach of trust 
should nol retain the benefits of that breach. See, e.g., Snepp v. United 

XR Staies, 444 U.S, 507, 515 (1980) (imposing a constructive rust on proceeds 
Lo received by a former CIA employee in violation of his contract with that agency.) Here, political benefits resulting fram a constitutional violation 
Lu are being retained by persons who participated in the violation and their 

retention is being justified under the guise of "incumbent protection” and 
“mainlaining partisan balance.” 

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absence of a race-based purpose. See Village of Arlington 
Heights v. Metropolitan Dev. Corp., 429 U.S. 252, 265-66 

(1977); cf. Hunter v. Underwood, 471 U.S. 222 (1985); Mu. 

Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 

(1977), Washington v. Davis, 426 U.S. 229 (1976). Only if the 
Arlington Heights test is employed can a district court be 

assured that the “taint” of an earlier racial gerrymander has been 
eliminated. Moreover, having already deprived its voters of 
equal protection by an unconstitutional racial gerrymander - 

and in North Carolina's case two such gerrymanders —~ the 
legislature cannot complain if the Courl applies to its most 

recent replacement plan the standard usually employed in 
determining whether equal protection requirements have been 

violated. 

In any event, nothing in the opinion of the court below 
reflects any awareness on its part of its responsibility to assure 
that “vestiges” of the racially-gerrymandered 1992 plan were 
not still present in the 1998 plan.® Indeed, had the Court 
considered whether those “vestiges” were still present, it would 
quickly have concluded that the 1998 plan reflects no genuine 
attempt to eliminate “vestiges” of the 1992 plan, which this 

Court analogized to “apartheid” and ruled unconstitutional. 
Even a visual comparison of the 1998 plan with the 1992 plan, 
which this Court held unconstitutional, with the 1997 plan, 
which the district court held unconstitutional, reveals that the 

  

* Even though this Count did not rule on the constitutionality of the First 

District in the 1992 plan because of a lack of standing of the Shaw 

plaintiffs, Cremarlie and his fellow plaintiffs — who are now appellants - 

have consistently claimed that the original First District was an 

unconstilutional racial gerrymander. If that premise is correct - which 

seems obvious in light of the District's demographics and lack of 

geographical compactness — the lower court was also under a duty to assure 

that the First District as it exists in the 1998 plan has none of the "vestiges" 
of the carlier First District and is not the “fruit” of that poisonous tree. 

AN 

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Current plan retains many "vestiges" of its predecessors. For example, the Twelfil District still is not “geographically compact.” Although not all of its counties are divided — as was true in the 1992 and 1997 plans - four of its five counties are split in the new Plan; and this ratio js higher than for any of North Carolina's eleven other districts.® 

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The 1998 plan still links two of the State's most populous counties, Mecklenburg and Forsyth — which are in ou different Metropolitan Statistical Areas (MSAs) and different » media markets and which, until 1992, had not been in the same 

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concentrated urban cores located in separate metropolitan areas." Furthermore, apart from Guilford County, which was 

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The only other significant splitting of counties is related to the creation [ the First District, which appellants have consistently contended retains ¢ "vestiges" of the racially-gemrymandered First District in the 1992 plan. 

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Lo TUmerous counties — was a flagrantly unconstitutional racial gerrymander —but also that jis continuing “taint” is obvious jn the First District of the 1997 

For another example of the use of such corridors, see Miller v. Johnson, 515 U.S. 900 (1995).   
 



  

13 

totally removed from District 12, only three precincts having 
forty percent or more African-American population were 
removed from the 1997 plan’s District 12 when the 1998 plan 
was redrawn." 

If percentages of African-American population are 
reflected on a map of the state’s urban areas - areas which are 

for the most part in the Piedmont” - it becomes readily 
apparent that the black population is sufficiently dispersed thal 

no urban district can be drawn which will conform with 

traditional race-neutral redistricting principles and yet will have 
a population which is much more than 25% African-American. 

Any significantly higher concentration of African-Americans 
within a single district in the Piedmont - where they are 

primarily located in urban areas — is an obvious “vestige” of the 
unconstitutional 1992 and 1997 plans. Over 35% of the 
population of the “new” Twelfth District is African-American -- 
a percentage which can only be explained as the result of a 

predominant purpose to group voters by race across Separate 

metropolitan areas. 

In its memorandum opinion of April 14, 1998, which 
invalidated the 1997 redistricting plan, the three-judge district 
court stated that, in redrawing the plan, “the legislature may 
consider traditional districting criteria, including incumbency 
considerations, to the extent consistent with curing the 

  

It Guilford County, which has several precincts with a high percentage of 
African-Americans was totally removed from Lhe Twelfth Districl. 

Ironically, Guilford County — unlike Mecklenburg County ~ is in the same 

Metropolitan Statistical Area (MSA) and same television market (DMA) as 

the adjacent Forsyth County; and also it is tke only county in the 1997 

version of District 12 that was subject lo preclearancs under Section 5 of 

the Voting Rights Act. See 42 U.S.C. § 1973c. 

"Appellants lodged such maps with the Court in Hunt v. Cromartie (No. 
98-85) in which they were the appellees. 

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constitutional defects." Presumably, when the district court permitted use of the 1998 plan for the current elections, it was continuing to allow legislators 10 rely on “incumbency considerations” - to which the General Assembly admitledly had given great weight in drawing that plan. 

Although appellants recognize that in the first instance a legislature may consider “incumbency” in redistricting, allowing  “incumbency” to . be considered when the Representatives in office have been elected pursuant to a racially-gerrymandered plan is inconsistent with eliminating the “vestiges” of that plan. The flagrantly unconstitutional 1992 plan has now been used for three congressional elections: and the present Representative for the Twelfth District has been elected three times from an unlawfully-drawn race-based district created with the express objective of assuring election of an African-American to Congress from that district. To allow a plan to be drawn which has as its purpose - or even considers - the protection of this Representative’s race-based incumbency is at odds with removing the “taint” of the 1992 plan. An acknowledged goal of the General Assembly was to "maintain the partisan balance of the State’s congressional delegation.” (App. at 4a) Maintaining a "partisan balance” which has resulted from elections conducted under an unconstitutional race-based plan also is at odds with removing “vestiges” of the earlier gerrymandering." Indeed, in North 
  

® See Hunt v. Cromartie (No. 98-85), Appendix 10 J.S., at 22a. 
"Of course appellants are not contending that this incumbent should be disqualified from running or that an effort should be made to penalize him; - but the General Assembly's effort to help him attain reelection conflicts with the basic goal of removing unconstitutional “vestiges.” Also it induces in voters a loss of hope for participating in the electoral process. 
"The same can be said with respect to the General Assembly’s purpose to keep incumbents in Segregated districts and preserve the cores of those 

  

 



  

“15 

Caro. ina, which now has six Democratic incumbents and six 

Republican incumbents, “maintaining partisan balance" is a 

euphemism for retaining the status quo, keeping in office 
incumbents elected pursuant to a race-based redistricting plan, 
and thereby perpetuating the unconstitutional results of the 
gerrymandering. 

As seems clear from its opinions, the threz-judge 
district court did not recognize its duty to assure that the 1998 

plan ‘was not the "fruit of the poisonous tree.” Had it done so, 
the court would have concluded readily that the 1998 plan was 

itself unconstitutional because it retained "vestiges" of ils 

predecessor plans. In view of pending proceedings in this case 
— including a trial — the Court should provide clear guidance to 

the three-judge district court that it must satisfy itself that the 
“taint” of the 1992 race-based plan has been finally removed. 
This guidance also will greatly benefit other courts called upon 
to evaluate redistricting plans which replace plans held 

unconstitutional. 

II. The District Court Should Have Placed on the State 

Defendants the Burden of Proving That the 1998 
Plan Was Not Race-Based. 

In its order allowing the congressional elections to 

proceed pursuant to the 1998 plan, the three-judge district court 

  

districts." (App. ai 4a.) In this context, “cores” is the functional equivalent 

of '“vestiges’; and protecting “cores” of racially gerrymandered 

congressional districts is no more to be tolerated than preserving the 

“vestiges” of racially segregated schools. 

'$ Understandably the use of such euphemism heightens public cynicism 

about the purpose and value of elections. Moreover, in the present contzx| 

to accept the logic of “incumbency considerations” vould permit 
reenactment of the most flawed racially gerrymandered plan for the alleged 
purpuse of protecting incumbents elected pursuant to that plan. 

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stated, “[blecause the Couri cannot now say that race was the predominant factor in the drawing of District 12 in the 1998 congressional districting plan, the revised plan is not in violation of the United States Constitution.” (App. at la.) Appellants have already pointed out that in deali ng with a plan which replaces a racially gerrymandered plan, the standard should be that of Arlington Heights — whether the plan would have been adopted absent the racial motive ~ rather than whether “race was the predominant facior."? 

However, even if the test is still to be whether a racial molive predominated, the State defendants ~ who committed the constitutional violations - should bear the burden to establish that race was nor the predominant motive; and the burden should not have been placed on the plaintiffs to establish that race still predominated in drawing District 12. This conclusion is a logical corollary of the principle that “vestiges” of the unconstitutional plan should be eliminated. Thus, in comparable cases involvi ng school desegregation, the burden was placed on the defendants to prove that they had eliminated the constitutional violation. Cf. School Bd. of Richmond v. Baliles, 829 F.2d a 1311; Vaughan v. Board of Educ., 758 F.2d at 991.8 

  

1” In Hise v. Lipscomb, 437 U.S. at 540, the Court stated, “The new legislative plan, if forthcoming, will then be the governing law unless it, loo, is challenged and found 10 violate the Constitution.” However, appellants do not interpret this statement to mean that when the new plan "is challenged,” that challenge will be considered as if there had been no preceding violation. Not to consider the prior violations would conflict with the principle that ‘vestiges” of an unconstitutional plan should be eliminated and 2lso would facilitate evasion of equal proteclion guarantees. 

Similarly, the burden of proof seems to have been placed on the prosecution to demonstrate that the “iaint” arising out of an illegal arrest in violation of the Fourth Amendment had been eliminated prior to obtaining 

    

 



  

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The misallocation of burden of proof helped lead the 

court below to an erroneous result. It is especially important 
that this error not be repeated in future proceedings in this case 
or duplicated in other litigation which concerns the remedying 
of unconstitutional racial gerrymanders. 

CONCLUSION 

The three-judge district court erred in denying 
appellants their requested injunction against use of the 1998 
redistricting plan in any congressional primary or election. 
Therefore, its order should be set aside and the Court should 

provide clear guidance to the court below as to its full scope of 
its responsibilities in reviewing the 1998 plan. This guidance 

also will help other courts avoid similar errors in future 
redistricting cases. 

Respectfully submitted, this the 15" day of September, 
1998. 

ROBINSON O. EVERETT* 

MARTIN B. McGEE 

Attorneys for the Appellants 

*Counsel of Record 

  

a confession. See Taylor v. Alabama, 457 U.S. at 630; Dunaway v. New 

York, 442 U.S. at 216-19; Brown v. lllinois, 422 U.S, al 603-4. 

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TABLE OF CONTENTS 

ORDER OF UNITED STATES DISTRICT COURT < 

FOR THE EASTERN DISTRICT OF 

NORTH CAROLINA, JUNE 22,1998 ......... la 

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NOTICE OF APPEAL TO THE SUPREME COURT 

OF THE UNITED STATES, FILED JULY 17, 

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ORDER OF UNITED STATES DISTRICT COURT FOR 
THE EASTERN DISTRICT OF NORTH CAROLINA, 

JUNE 22, 1998 

[C aption omitted in printing] 

This matter is before the Court on the Defendants’ 
submission of a congressional districting plan for the 1998 
congressional elections (the “1998 plan”). By Order dated 

April 21, 1998, this Court directed the North Carolina General 
Assembly to enact legislation revising the 1997 congressional 
districting plan and. to submit copies to the Court. The General 

Assembly enacted House Bill 1394, Session Law 1998-2, 

redistricting the State of North Carolina's twelve congressional 
districts, and the Defendants timely submitted the 1998 plan to 
the'Court. The Plaintiffs subsequently filed an opposition and 

objections to the 1998 plan, and the Defendants have responded 
to the Plaintiffs’ objections. On June 8, 1998, the United States 
Department of Justice precleared the 1998 plan pursuant to 
Section 5 of the Voting Rights Act of 1965,42 U.S.C. § 1973c, 

and this Court must now decided whether the 1998 plan 
complies with the Equal Protection Clause of the United States 

Constitution. 

| Because the Court cannot now say that race was the 
predominant factor in the drawing of District 12 in the 1998 
congressional districting plan, the revised plan is not: in 
violation of the United States Constitution, and the 1998 

congressional elections should proceed as scheduled in the 

Court’s April 21 Order. 

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In Shaw ». Hunt, the United States Supreme Court 

considered challenges 10 North Carolina's 1992 congressional 

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districting plan (the *1992 plan”) and held that the Twelfth 
Congressional District ("District 12") in the 1992 plan was drawn with race as the predominant factor, that the districting 
plan was not narrowly tailored to serve a compelling state interest, and that the 1992 plan violated the Equal Protection 
Clause. 509 U.S. 630, 113 S.Ct. 2816, 125 L.Ed.2d S11 (1 993) (‘Shaw I), 517 U.S. 899, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996) ("Shaw I), 

After the North Carolina General Assembly redrew the 
State’s congressional districting plan in 1997, the Plaintiffs in this action challenged the constitutionality of the 1997 plan in 
this Court. Specifically, the Plaintiffs argued that the Twelfth 
and First Congressional Districts were unconstitutional racial 
gerrymanders. Each party moved for summary judgment, and 
in an Order dated April 3, 1998, the Court granted summary judgment in favor of the Plaintiffs with respect to District 12. 
Like the Supreme Court in Shaw, this Court held that race was the predominant factor in the drawing of District 12 in the 1997 plan, and that the district was violative of Equal Protection. In 
its April 3 Order, the Court instructed the Defendants to submit a new plan in which race was not the predominant factor in the drawing of District 12. 

The Court found that neither party could prevail as a matter of law with respect to District 1, and denied summary 
Judgment as 1o that district. Neither this Court nor the Supreme 
Court in Shaw has made a legal ruling on the constitutionality 
of District 1 under the 1992, 1997, or 1998 congressional districting plans. 

dk DR 

In Wise v. Lipscomb the Supreme Court advised that 
“[wlhen a federal court declares an existing apportionment 

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scheme unconstitutional, it is . . . appropriate, whenever 
practicable, to afford a reasonable opportunity for the 

legislature to meet constitutional requirements by adopting a 
substitute measure rather than for the federal court to devise 
and order info effect its own plan.” 437 U.S. 535, 540, 98 S.Ct. 

2493, 2497, 57 L.Ed.2d 411 (1978). In reevaluating a 
substitute district plan, the court must be cognizant that "a 

state’s freedom of choice to devise a substitute for an 

apportionment plan found unconstitutional, either in whole or 
in part, should not be restricted beyond the clear commands of 
the Equal Protection Clause." Id. (quoting Burns v. 

Richardson, 384 U.S. 73, 85, 86 S.Ct. 1286, 1293, 16 L.Ed.2d 
376 (1966)). Finally, as the Supreme Court has noted, because 
"federal court review of districting legislation represents a 

serious intrusion on the most vital of Jocal functions,” this 
Court must “exercise extraordinary caution in adjudicating” the 
issues now before it. Miller v. Johnson, 515 U.S. 900,916,115 
S.Ct. 2475,2488, 132 L.Ed.2d 762 (1995). 

Because this Court held only that District 12 in the 1997 
plan unconstitutionally used race as the predominant factor in 
drawing District 12, the Court is now limited to deciding 
whether race was the predominant factor in the redrawing of 
District 12 in the 1998 plan. In reviewing the General 

Assembly’s 1998 plan, the Court now concludes that on the 

record now before us that race cannot be held to have been the 
predominant factor in redrawing District 12. In enacting the 

1998 plan, the General Assembly aimed to specifically address 
this Court’s concerns about District 12. Thus, the present 
showing supports the proposition that the primary goal of the 
legislature in drafting the new plan was “to eliminate the 
constitutional defects in District 12.” Aff. of Gerry F. Cohen. 

The State also hoped to change as few districts as possible, to 
maintain the partisan balance of the State's congressional 
delegation, to keep incumbents in separate districts and 

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preserve the cores of those districts, and to reduce the division 
of counties and cities, especially where the Court found the 
divisions were based on racial lines. 1d. 

With the foregoing in mind, the Genera! Assembly 
successfully addressed the concerns noted by the Court in its 
Memorandum Opinion for the purposes of the instant Order. 
Thus, the 1998 plan includes a Twelfth Congressional District 
with fewer counties, fewer divided counties, a more “regular” 
geographic shape, fewer divided towns, and higher dispersion 
and perimeter compactness measures. District 12 now contains 
five, rather than six, counties, and one of those counties is 
whole. District 12 no longer contains any part of the City of 
Greensboro or Guilford County. The 1998 plan no longer 
divides Thomasville, Salisbury, Spencer, or Statesville. The 
new plan also addresses the Court’s concer that it not assign 
precincts on a racial basis. While the Court noted in its 
Memorandum Opinion that the 1997 plan excepted form 
District 12 many adjacent “voling precincts with less than 35 
percent African-American population, but heavily Democratic 
voting registrations," the 1998 plan includes fourteen precincts 
in Mecklenburg County in which previous Democratic 
performance was sufficient to further the State’s interest in 
maintaining the partisan balance within the congressional 
delegation. The General Assembly also added several Forsyth 
County precincts to smooth and regularize the District’s 
boundaries. These changes resulted in a total African- 
American population in District 12 of 35 percent of the total 
population of the district, down from 46 percent under the 1997 
plan. 

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Based on the foregoing, the Court now accepts the 1998 
plan as written. The 1998 congressional elections will thus 
proceed under this plan, as scheduled in this Court's April 21, 

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1998, Order. As noted above, neither this Court nor any other 
has made a legal ruling on the constitutionality of District I. 
The 1998 plan is only approved with respec! to the 1998 

* congressional elections, but the Court reserves jurisdiction with 
regard to the constitutionality of District 1 under this plan and 
as to District 12 should new evidence emerge. This matier 

should therefore proceed with discovery and trial accordingly. 
The parties are ordered to submit proposed discovery schedules 
to the Court on or before June 30, 1998. : 

SO ORDERED. 

This 19" day of June, 1998. 

SAM J. ERVIN, 11] 
United States Circuit Judge 

TERRENCE W. BOYLE 

Chief United States District Judge 

RICHARD L. VOORHEES 
United States District Judge 

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NOTICE OF APPEAL TO THE SUPREME COURT OF 
THE UNITED STATES 

Notice is hereby given that Martin Cromartie, ef al., the 
plaintiffs above-named, hereby appeal to the Supreme Court of 
the United States from the Order of the three-judge District 
Court dated June 19, 1998, approving the 1998 congressional 
redistricting plan for use in the 1998 congressional elections in 
accordance with the schedule provided in the Court’s April 21, 
1998 Order. 

This appeal is taken pursuant to 28 U.S.C. § 1253. 

Respectfully submited, this the 17 day of July, 1998. 

/s/ Robinson O. Everett 

/s/ Martin B. McGee 

  

  
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