Amended Complaint and Motion for Preliminary and Permanent Injunction

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{rew. Sack L UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF NORTH CAROLINA 

RALEIGH DIVISION 

Civil Action No. 4.96-CV-104 

MARTIN CROMARTIE, THOMAS 
CHANDLER MUSE, R.O. EVERETT, 
JH. FROELICH, JAMES RONALD 
LINVILLE, and SUSAN HARDAWAY, 

Plaintiffs, 

AMENDED COMPLAINT 
Vs. AND MOTION FOR 

PRELIMINARY AND 
JAMES B. HUNT, JR, in his official capacity PERMANENT INJUNCTICN 
as Governor of the State of North Carolina, 

DENNIS WICKER in his official capacity as 
Lieutenant Governor 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 State of North Carolina, and 
LARRY LEAKE, S. KATHERINE BURNETTE, 
FAIGER BLACKWELL, DOROTHY PRESSER 
and JUNE YOUNGBLOOD in their 
capacity as the North Carolina Board of 
Elections, 

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Defendants. 

Pursuant to Federal Rule 15(a) of Civil Procedure, Plaintiffs file this Amended Complaint 

and, complaining of the Defendants, allege: 

PRELIMINARY STATEMENT 

This action challenges the constitutionality of the racially gerrymandered congressional 

redistricting plan which was enacted by the North Carolina General Assembly in late March 1997. 

The Plaintiffs’ claim is grounded on the injury to Plaintiffs which will result if elections are 

 



conducted under this recently enacted plan because it is racially motivated and is predicated on the 

  

unconstitutional race-based plan which preceded it. This plan, a fruit of the poisonous tree 

planted in January 1992 by its predecessor, injures and impairs the important rights of Plaintiffs as 

citizens and registered voters of the State of North Carolina; and it threatens to continue to injure 

and impair those rights into the next century and millennium. The rights infringed by the acts of 

the State Defendants are those granted expressly or implicitly by Article I, Sections 2 and 4 of the 

United States Constitution and by the Fourteenth and Fifteenth Amendments. 

Plaintiffs seek a declaration that the redistricting plan enacted by the General Assembly in 

March 1997 is unconstitutional; that the Defendants be enjoined from using that plan in the 1998 

elections or any subsequent congressional elections; that no one be allowed to serve in Congress if 

elected under the March 1997 plan; that this Court direct the General Assembly to draw promptly 

a plan that is not tainted by the current plan and that is prepared without regard to race, party or 

incumbency, and that, if the Legislature fails to prepare promptly and enact such a plan and obtain 

preclearance for it, this Court do so. 

THE PARTIES 

1. Plaintiffs Martin Cromartie and Thomas Chandler Muse are citizens and residents 

of Edgecombe County, North Carolina; Plaintiff R.O. Everett is a citizen and resident of Rowan 

County, North Carolina, Plaintiff J. H. Froelich, Jr. is a citizen and resident of Guilford County, 

North Carolina; Plaintiff James Ronald Linville is a citizen and resident of Forsyth County, North 

Carolina; and Plaintiff Susan Hardaway is a citizen and resident of Mecklenburg County, North 

Carolina. All the Plaintiffs are registered voters. 

2 Defendant James Hunt is the Governor in and for the State of North Carolina; and, 

 



in such capacity, he is the Chief Executive Officer of the State charged with the duty of enforcing 

compliance with State legislation enacted under Article II, Sec. 5(4) of the Constitution of North 

Carolina. Moreover, it is the Governor's duty to issue a commission to a person elected to the 

United States House of Representatives upon that person's production to the Governor of a 

certificate of his or her election from the Secretary of State, pursuant to N.C.G.S. Section 163- 

194. He is sued in his official capacity. 

3, Defendant Dennis Wicker is Lieutenant Governor of North Carolina, and, as part 

of his official duties, he presides over the North Carolina Senate and certifies certain actions of the 

Senate. He is sued in his official capacity. 

4. Defendant Harold Brubaker is the Speaker of the North Carolina House of 

Representatives and, in this capacity, he presides over that body and certifies certain actions taken 

by the House of Representatives. He is sued in his official capacity. 

S. Defendant Elaine Marshall, Secretary of State of North Carolina, is charged with 

preparing a certificate of election for each person elected after the Board of Elections certifies the 

result to her, pursuant to N.C.G.S. Section 163-193, and with recording the results of elections 

for the United States House of Representatives, pursuant to N.C.G.S. Section 163-195. She is 

sued in her official capacity. 

6. The North Carolina State Board of Elections is an official agency of the State of 

North Carolina, which has been established to supervise and conduct elections in the State of 

North Carolina, including elections for the United States House of Representatives. Defendant 

Larry Leake is the chairman and S. Katherine Burnette, Faiger Blackwell, Dorothy Presser and 

June Youngblood are members of the North Carolina State Board of Elections. All of these  



  

Defendants are charged with exercising the powers and duties of the State Board of Elections 

pursuant to N.C.G.S. Section 163-22. These Defendants are all sued in their official capacity. 

JURISDICTION AND VENUE 

7. This action arises under Article I, Sections 2 and 4 and the Fourteenth and 

Fifteenth Amendments of the Constitution of the United States and under 42 U.S.C. Sections 

1983 and 1988, and 2 U.S.C. Section 2a. 

8. This Court has original jurisdiction of this action pursuant to 28 U.S.C. Sections 

1331, 1343(a)(3) and (4), and 2284. 

9. Venue exists under 28 U.S.C. Section 1391(b) because the enactment of the 

unconstitutional race-based redistricting plan and the acts and events which are the subject of this 

action occurred principally in Raleigh, North Carolina in the Eastern District of North Carolina. 

THREE-JUDGE DISTRICT COURT 

10. Convocation of a three-judge district court is required by 28 U.S.C. Section 2284 

because this action challenges the constitutionality of the statewide apportionment of 

congressional districts for the State of North Carolina. 

HISTORY OF THE CASE 

11. Since it became a State when the United States Constitution was ratified, North 

Carolina has elected its Representatives to Congress from single-member congressional districts 

and the plans for these districts have been amended by the North Carolina General Assembly from 

time to time to reflect the results of the decennial censuses and the number of Representatives 

allocated to North Carolina. 

12. As a result of the 1980 census, North Carolina was entitled to eleven 

 



Representatives in the Congress; and those Representatives were elected under a plan adopted by 

  

the General Assembly which provided for eleven districts. 

13. As a result of the 1990 census, North Carolina became entitled to twelve 

Representatives in the Congress, and the General Assembly undertook to prepare a redistricting 

plan that would contain twelve districts and that would oative preclearance of the plan from the 

Department of Justice, which, under Section 5 of the Voting Rights Act, 42 USC Section 

1973(Db), had preclearance authority over forty North Carolina counties. 

14. On July 9, 1991, the General Assembly enacted a redistricting plan which was 

predominantly motivated by race and contained a majority black district that was not compact or 

contiguous and did not conform to traditional redistricting principles. 

15. Even though the 1991 plan enacted by the General Assembly was a racial 

gerrymander that sought to comply with unconstitutional requirements imposed by the 

Department of Justice under its preclearance authority, on December 18, 1991, the Civil Rights 

Division of the Department of Justice denied preclearance of that plan under Section S of the 

Voting Rights Act. 

16. In January 1992, the General Assembly enacted a second redistricting plan, which 

also was predominately motivated by race. This plan had two bizarre majority-black districts, the 

First and the Twelfth. Neither of these districts was geographically compact or contiguous and 

the boundaries of each district defied traditional principles of redistricting. 

17. Thereafter in March 1992, a lawsuit was commenced by five Durham voters 

against the Governor and various other State Defendants, in which those Plaintiffs attacked the 

constitutionality of the redistricting plan and especially the First and Twelfth Districts. 

 



18. In that litigation, the Supreme Court held in the first appeal by those Plaintiffs that 

under the Equal Protection Clause of the Fourteenth Amendment they had stated a constitutional 

claim against the State Defendants in that action. See Shaw v. Reno, 509 U.S. 630 (1993). 

19. On remand, various persons intervened in that case on the side of those Plaintiffs 

or on the side of the State Defendants, and a trial took place before a three-judge district court. 

In that trial the district court held unanimously that the redistricting plan was predominantly 

racially motivated, but ruled by divided vote that the plan survived the test of strict scrutiny. The 

Plaintiffs in that case appealed successfully to the Supreme Court, which held on June 13, 1996 

that the Twelfth District was race-based and did not meet the test of strict scrutiny and therefore 

was an unconstitutional racial gerrymander. See Shaw v. Hunt, 116 S. Ct. 1894 (1996). The 

Supreme Court also held that neither the Plaintiffs nor the Plaintiff-intervenors in that action had 

standing to raise the issue of unconstitutionality of the First District, because none was a 

registered voter in that district. /bid. 

20. On July 3, 1996, two of the present Plaintiffs -- together with a third registered 

voter from Edgecombe County — commenced the present action, in which they complained that 

the First District as it existed under the January 1992 plan was an unconstitutional racial 

gerrymander violating the Equal Protection Clause of the Fourteenth Amendment. 

21. Subsequent proceedings were stayed in this action in order to await the outcome 

of any further proceedings in the Shaw litigation and thereafter to await possible legislative action 

by the General Assembly to replace with a new plan the unconstitutional racially gerrymandered 

redistricting plan enacted in January 1992. 

22. Late in March 1997, the General Assembly enacted 97 House/Senate Plan A  



contained in Section 2 of Chapter 11 of the North Carolina General Assembly's 1997 Session 

  

Laws, a new plan which in various respects revised the First and Twelfth Districts as well as other 

districts. 

23, As a result of the general elections conducted in November 1996 under the 

redistricting plan which in June 1996 the Supreme Court had ruled unconstitutional, six 

Democrats and six Republicans were elected to Congress and continue to serve there at the 

present time. One of the Democratic members of Congress, Melvin Watt, is an African-American 

elected from the racially gerrymandered Twelfth District and another, Eva Clayton, is an African- 

American elected from the racially-gerrymandered First District. Both of these Representatives 

were elected in 1992 pursuant to the intent of the General Assembly to assure that two African- 

Americans be elected to the Congress from North Carolina. 

24. In devising and enacting this plan, the North Carolina General Assembly, in which 

the House of Representatives was controlled by Republicans and the Senate by Democrats, 

intended to perpetuate the results of the November 1996 congressional elections that had been 

conducted under the unconstitutional plan enacted in January 1992. 

25. To accomplish this result the General Assembly used as its starting point the 

unconstitutional plan of January 1992 under which the November 1996 election had been 

conducted. Under the 1992 plan, portions of Greensboro, High Point and Winston-Salem, the 

three cities of the Triad, were placed in the Twelfth District with parts of Charlotte, a different 

metropolitan area. This linkage, which was unprecedented and did not conform to traditional 

redistricting principles, was intended by the General Assembly to assure the reelection to 

Congress of an African-American, Melvin Watt. The First District was also created by the 

 



General Assembly in a manner contrary to traditional redistricting principles in order to assure the 

  

reelection to Congress of an African-American, Eva Clayton. 

26. Acting with a predominantly racial motive, and acting under a court-imposed 

deadline, the General Assembly enacted in late March, 1997 a redistricting plan in which the 

Twelfth District was composed of parts of six counties. Each of those six counties was divided 

along racial lines and for a predominantly racial motive. Of Mecklenburg County's black 

population, 84% was placed in the Twelfth District and 16% in the Ninth; but of its white 

population 27% was placed in the Twelfth District and 73% in the Ninth. Of Forsyth County's 

black population, 65% was placed in the Twelfth District and 35% in the Fifth District; but of its 

white population, 8% was placed in the Twelfth District and 92% in the Fifth. Of Guilford 

County's black population, 76% was placed in the Twelfth District and 24% in the Sixth; but of its 

white population, 25% was placed in the Twelfth District and 75% in the Sixth. Of Iredell 

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

its white population, 37% was placed in the Twelfth District and 63% in the Tenth. Of Rowan 

County's black population, 66% was placed in the Twelfth District and 34% in the Sixth; but of its 

white population, 23% was placed in the Twelfth District and 77% in the Sixth. Of Davidson 

County's black population 80% was placed in the Twelfth District and twenty percent 20% in the 

Sixth District; but of its white population, 49.6% was placed in the Twelfth District and 50.4% in 

the Sixth District. The Twelfth District is the only congressional district which under the March 

1997 plan contains no county which is not divided. 

27. Since 1793, Mecklenburg and Guilford Counties have never been in the same 

district until the unconstitutional race-based plan of January 1992 was enacted. Since its creation, 

 



Forsyth County had never been in the same congressional district with Mecklenburg County until 

1992. 

28. Under the March 1997 redistricting plan, the Twelfth District and First District 

have boundaries which were drawn pursuant to a predominantly racial motivation. Absent that 

predominantly racial motivation, those districts would have far different boundaries. Had the 

General Assembly never adopted its unconstitutional racially gerrymandered plans in July 1991 

and January 1992, the March 1997 plan would have contained districts quite different from those 

in the March 1997 plan; and neither the Twelfth nor the First District would have its present form. 

29. Because they result from and are caused by the predominantly racial motivation 

that gave rise to the January 1992 and July 1991 plans, the March 1997 plan 1s the fruit of those 

racially gerrymandered plans -- and is tainted by them. 

CLAIM FOR RELIEF 

30. The preceding allegations of this Complaint are incorporated herein by reference 

and realleged. 

31. Plaintiffs Cromartie and Muse are registered voters in the new First District and 

each has standing to contest the March 1997 plan, which deprives them of their right to equal 

protection under the Fourteenth Amendment and abridges their rights as registered voters under 

the Fifteenth Amendment. 

32. Plaintiffs Everett, Froelich, Linville and Hardaway are registered voters in the new 

Twelfth District and each has standing to contest the March 1997 redistricting plan, which 

deprives them of their right to equal protection under the Fourteenth Amendment and abridges 

their rights as registered voters under the Fifteenth Amendment.  



33. The Plaintiffs, as citizens and residents of the State of North Carolina, are part of 

  

its "people;" and as registered voters in the State, they have, under Article 1, Section 2 of the 

United States Constitution a right to choose members of Congress in districts that are not race- 

based, either directly or indirectly. 

34. The right of the Plaintiffs to vote for members of the House of Representatives is a 

right for which the Plaintiffs are entitled to the "equal protection of the laws," with respect to any 

action taken by the State of North Carolina. Moreover, this right to vote for members of the 

House of Representatives of the United States is a "privilege" of citizens of the United States 

within the meaning of the Fourteenth Amendment and is protected by that amendment from being 

abridged by the State of North Carolina. The right of the Plaintiffs as citizens of the United States 

to vote for members of the House of Representatives is also protected by the Fifteenth 

Amendment against being "abridged" by the State of North Carolina on account of the race or 

color of the Plaintiffs. 

35. Any action by officers of the State of North Carolina which discriminates on the 

basis of race or color violates this right of Plaintiffs to vote for members of Congress; denies the 

Plaintiffs and all other voters equal protection of the laws; and on account of race or color 

abridges their right to vote. 

36. The State Defendants shared an unconstitutional and racially discriminatory intent 

and purpose and pursuant to that intent they created congressional districts along racial lines with 

the purpose of assuring that two African-American representatives would be elected to Congress 

from North Carolina. In so acting, the General Assembly violated Plaintiffs’ equal protection 

rights. 

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WHEREFORE, Plaintiffs respectfully pray that: 

  

L The United States District Court Judge to whom this case is initially assigned 

immediately notify the Chief Judge of the United States Court of Appeals for the Fourth Circuit 

so that a three-judge Court may be convened to hear this case in as expeditious a manner as 

feasible. 

2. The Court declare the 1997 congressional redistricting plan to be unconstitutional 

and of no further force and effect insofar as it purports to establish congressional districts for the 

State of North Carolina. 

3. The Court direct the General Assembly to prepare promptly a new redistricting 

plan for the State of North Carolina which will not be derived from any earlier unconstitutional 

plan and which will not concentrate in any congressional district persons of a particular race or 

color -- whether black, white, native American, or otherwise -- in a manner that is totally 

unrelated to considerations of compactness, contiguousness, and geographic or jurisdictional 

communities of interest; and if the General Assembly does not prepare promptly such a plan, then 

the Court itself prepare such a plan with the aid of suitable impartial experts. 

4. The Court permanently enjoin the Defendants Leake, Burnette, Blackwell, Presser 

and Youngblood from conducting elections for the U.S. House of Representatives in North 

Carolina until the General Assembly enacts, and the Department of Justice preclears, a new 

redistricting plan as prayed for in Paragraph 3 above. 

S. The Court enter both a temporary restraining order and preliminary injunction 

enjoining the Defendants Leake, Burnette, Blackwell, Presser and Youngblood from taking any 

action in preparation for primary or general elections for the U.S. House of Representatives in 

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North Carolina until the General Assembly enacts and the Department of Justice preclears a new 

  

redistricting plan as prayed for in Paragraph 3 above. 

6. That for purposes of consideration of any injunctive relief this complaint, when 

properly verified, be treated as an affidavit in this action. 

7 That the Court Fis cost and attorneys fees to the Plaintiffs as against the 

Defendants pursuant to the Equal Access To Justice Act 28 U.S.C. Section 2412 or as otherwise 

authorized by law. 

8. That the Court grant such other and further relief as may, to the Court, seem just 

and proper. 

Respectfully submitted, this the or day of October 1997. 

"da 41 I 
Robinson O. Everett 

Everett & Everett 

N.C. State Bar No.: 1385 

As Attorney for the Plaintiffs 

P.O. Box 586 

Durham, NC 27702 

Telephone: (919) 682-5691 

Williams, Boger, Grady, Davi 

A A LTE ) fos 
Martin B. McGee 

State Bar No.: 22198 

Attorneys for the Plaintiffs 
P.O. Box 810 

Concord, NC 28026-0810 

Telephone: (704) 782-1173 

  

  

  

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