Muntaqim v. Coombe Reply Brief for Plaintiffs-Appellants

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May 13, 2005

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Muntaqim v. Coombe En Banc Reply Brief for Hayden Plaintiffs-Appellants

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  • Case Files, Cromartie Hardbacks. Response in Opposition to Emergency Application for Stay Pending Appeal of the Decision of the Court, 1998. acde3614-d90e-f011-9989-002248226c06. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/5bf6edd0-abf7-4c85-a9d5-c61e9d0167f8/response-in-opposition-to-emergency-application-for-stay-pending-appeal-of-the-decision-of-the-court. Accessed August 19, 2025.

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No. A753 

  

Inthe 

“Supreme Court of the United States 
October Term, 1997 

  

JAMES B. HUNT, JR., in his official capacity as 

Govemor of the State of North Carolina, ef al, 
Petitioners, 

V. 

MARTIN CROMARTIE, et al, 
Respondents. 

  

RESPONSE IN OPPOSITION TO EMERGENCY APPLICATION FOR STAY 

PENDING APPEAL OF THE DECISION OF THE THREE-JUDGE COURT 

FOR THE UNITED STATES DISTRICT COURT FOR THE 

EASTERN DISTRICT OF NORTH CAROLINA 

  

Robinson O. Everen® 
Everett & Rvereut 
P.O. Box 386 
Durham, NC 27702 
Telephone: (919) 682-3691 

Marin B, McGee 
Williams, Boger, Grady, Davis 

& Tuttle, P.A. 
P.O. Box 810 
Concord, NC 28026-0810 
Telephona (704) 77-1177 

* Counsel of Record  



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TABLE OF CONTENTS 

TABLE OF AUTHORITIES 

INTRODUCTION ,...c.cvanvnransniarrvinas tom vas nes Be EL PR iy oe 4% 18 

STATEMENT OF PACTS 

THE OVERTURNING OF THE 1992 PLAN 

AFTERMATHOF SHAW ........... EIR SRR I SR. 3 

THB CROMARTIEV. HUNT SUIT... ........ccuuinn. tne En i er 7 

THE HEARING ON MARCH 31, 1998 

ARGUMENT AGAINST GRANTING A STAY 

SUMMARY OF ARGUMENT 

I. THE STANDARD 1S DEMANDING FOR GRANT OF AN IN-CHAMBERS 
APPLICATION POR A STAY 

A. NORTH CAROLINA'S CURRENT TWELFTH DISTRICT IS 
UNCONSTITUTIONALLY TAINTED BY THE REDISTRICTING PLAN 
STRUCK DOWN BY THE COURT IN SHAWV. HUNT. ............... 14 

NORTH CAROLINA'S RACE-BASED 1997 CONGRESSIONAL PLAN 
VIOLATES THE PRECEPTS OF SHAW 

Il. THE BALANCE OF EQUITIES IS AGAINST GRANTING A STAY 

CONCLUSION 0 oie sian arises bin ls vn oi 

 



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TABLE OF AUTHORITIES 

CABES 

Abrams v. Jolson, 117 8.0 1808 C100 cvs nvr nvr cai snahan neues vse nnnns passim 

Batson v. Kentucky, 476 U.S. 79, 106 S.Ct IT12(1986) . .. .......coo irvine ineinnans 14 

Brown v. Illinois, 422 U.8,. 390 (1978). . ...ooovv i iiveinnnnnns LL) 15 

Bush v, Vera, 116 8.Ct. 1941 (1996) ......,.,.... 8 pire vip gat a a ay ees 12,20 

Caves. BRITAS ADB LIS, YoB itu riers nrsnssnn rnrnss, evden ds ssvda nat: a 13,29 

Gregary-Portland Indep, Sch. Digi, v. United States, 448 U.S, 1342 (1980) ........ 'vo tive 14 

InRe Rich. Shaw, 117 S00 AB UIIB) ov vers iiirinvarnessoen Ce a er 6 

Kastigar v. United States, 406 U.S. 441 (1972)... ovine eine 18 

Eaves v. 4OWRSENA, ABD LS. JUL UIE) 10 vv vne irene nearness 13, 14 

Miller v. Johnson, 5151).8.900, 1158S. Ct. 2475 (1995)... conver sooner 3,4, 24,26 

Murphy v. Waterfront Commission, STB U.S. 82 (1964)... orien inns, 15 

Nardone v. United States, 30B 11.8. 338 (1939) «vv ov viene ee 15 

Pope v. Blue, B05 F.Supp. 392 (W.DN.C. 1992), 
summarily affirmed 506 U.5. 801, 1138.CL30(1992) ......oovv ive ie 3 

Powers v. Ohio, 499 U.S, 400, 111 S.C 1364 (1991) ovo ove ee ee 14 

Reynolds v, Sims, 377 U.8.533 (1964). ....c.ovvvevoninnnn, Hi Sa hes, 28 

Shaw v, Hunt, 517 U.S. 899, 116 8.Ct. 1894, (1996)... ......oo vv, 2,4 

Shaw v. Reno, S09 U.S. 630, 1138.C1. 2816(1992) oon... .. ols 4 any .3,27,28 

Snepp v. United States, 444 DB S0T419B0Y ear des ar oe TIE 20 

ii 

 



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Thombura v. Oivgles, STS US. SOBA cv. svrn's si Sirnasns asm dss Os oon EP 

U.S v North PIO PIA SADC CI III ih se + os Shida Sn a Tan ayn wane 15 

United States v, Wade, 38B U.S. 218 (1967) .............. CA TIRE 13 

Whalen v. Roe, 423 U.S, 1313 (1978)...... pi HILSON ION J Co SS Led A gad, 13 

Williams vi Zora AR OB ABB COI. LL ie is Suns Tne 14 

Wong Sih v. United States, STL UB. BVO)... sive. ovo veiennin ha niihvuvunan 15 

STATUTES 

Usrkeusg Maghts Avy 43 UB. 13080... o cen Jif ar ie 3, 10, 28 

iii 

 



    

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No, A-753 

  

  aaa -_p 

In the 

Supreme Court of the United States 
October Term, 1997 

  

JAMES B. HUNT, JR, in his official capacity as 
Govemor of the State of North Carolina, ef al., 

Petitioners, 

Vv. 

MARTIN CROMARTIE, et al., 
Respondents. 

  

RESPONSE IN OPPOSITION TO EMERGENCY APPLICATION FOR 
STAY PENDING APPEAL OF THE DECISION OF THE THRER-JUDGE 

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

To the: Honarahle Wilnam ts. kehngyict, Chiof Juntion nf tha United States mud Circult 

Justice for the Fourth Circuit: 

INTRODUCTION 

On April 6, 1998, the Petitioners filed their emergency application for u stay pending 

appeal of the summary judgment, preliminary injunction, and pennanent injunction granted wo 

Malntll-Rospuudents by the three-judge court tor the United States District Cour for the Eastern 

Distrlet of North Caroling on April 3. 1998. On that sumn day. tha Petitianers requested the 

 



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District Court to stay its order pending appeal; and that request has now been denied. Because 

the emergency application for a stay is imply another offort by the Defendant-Petitioners to 

postpone tho elimination of racially FoNVidhdoms congressional districts in North Carolina and 

would inflict additional injury to the constitutional rights of the Plainiiff-Respondents, they file 

this opposition. 

The Count is quite familiar with the unconstitutional racially gerrymandered 

congressional districts that the North Carolina General Assembly oreated in 1992. Indeod, the 

map of those districts, which was viewed by the Court during two oral arguments, vividly 

displayed how all traditional principles of redistricting had been abandoned to achieve a racially 

based result. Now the Court has before it a plan spawned by the earlier plan; as reflected in a 

map of the 1997 districts, the "new" plan perpstuates many of the worst features of the earlier 

pian. Moreover, this plan is being defended by arguments that should be as “singularly 

unpersuasive to the Court as was the defendants’ conteniion in Shaw v, Hunt, $17 U.S. 899, 

ween 1168.C1, 1894, 1906 (1996) hereinafter “Shaw IT’) that the formor Twelfth District was 

"narrowly tailored.” 

STATEMENT OF FACTS 

A. The Overturning of the 1992 Plan 

To understand fully the lack of merit in Defendants’ application for a stay requires a 

review of the evolution of the congressional racial getrymander in North Caroling afier the 1990 

eonaud. Initially, a nalinti iting (len was sdopied by the weneral Assembly In 1UY1 which 

contained a single majority-black district, Jocated in the northeastem pan of the State, On 

Diacamber 18, 1991, the Depanment of Juation applying an unzongtitutioual Yumaiuicalion™  



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interpretation of Section § of the Voting Rights Act, 42 U.S.C, 1973b ~ denied preclearance for 

the plan because it did not contain a second majority-black district, By the end of January, 1992, 

the General Assembly hud enacted u new plan with two majority-black districts, one of which 

was the “serpentine” Twelfth District, that stretched along I-85 from Oastonia to Durham. No 

congressional district remotely similar to the Twelfth District had ever existed previously in 

North Carolina. This plan was swifily precleared by the Department of Justice. 

A few days thereafter, 8 suil was commenced attacking the redistricting plan on the 

ground that it was a political gerrymander: but a three-judge district coun dismissed it shortly 

theteafier, Pope v. Blue, 809 F.Supp. 392 (W.D.N.C, 1992), summarily affirmed S06 11.5. 801, 

113 5.Ct. 30 (1992). At that time, the Stato dofondants’ position was that the plan could not be 

attacked as a political genymander because it was really a racial gerrymander suthorized by the 

Voting Rights Act. 

On March 12, 1992, five plaintiffs from Durham, North Carolina filed a lawsuit against 

state and fedoral defendants in which they stacked the redistricting plan as » racial gerrymandor 

in violation of the Fourteenth and Fifteenth Amendments, as well as Article I, Section 2 of the 

United States Constitution, Their action was dismissed as 10 all of the defendants: but this ruling 

was overtumed on appeal as to the Siate defendants. Shaw v. Reno, 509 1.8. 630, 113 S.Ct. 

2816 (1992)(hereinafier “Shaw I’). In the Opinion of the Court, Justice O'Connor pointed out 

that the plaintiffs’ claim under the Equal Protection Clause was “analytically distinct” from a 

vote-dilution claim. 509 U.S. et 652." Therofore, if the plaintiffs in that action could prove that 

race was the predominant motive for drawing the plan, it would be subjected to the test of ‘strict 
      bh ad —" 

‘See also Miller v. Johnson, 115 S.C1. 2478, 24858 (1995). 

3  



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scrutiny.” The case was remanded for trial. 

After extensive discovery, trial commenced late in March, 1994. Contrary to thelr earlier 

position that the two majority-black divyicts were race-based and that this was authorized by the 

Voting Rights Act, the defendants claimed that the five white plaintiffs lacked standing ro contest 

racial gerrymanders, that the diatricts actually wore not race-based but reflected other 

considerations, such as “functional compactness,” and that, even if race-based, they would 

survive the “strict serutiny” test. The three-judge district court held that the plaintiffs had 

standing and that the districts were race-based. However, in the view of & majority of that court, 

the racially gertymandered districts were justified by a “compelling governmental interest” and 

were "narrowly tailored.” 

On appeal, this Court held that plaintiffs Shaw and Shimm had standing to attack the 

Twelfth Congressional District since they were registered voters there, Shaw JI, 116 5.Ct. at 

1900. However, none of the plaintiffs had standing to challenge the majority-black First 

Congressional District singe none were registered voters in that district. The Opinion of the 

Court by Chief Justice Rehnquist held that nor only had race been the predominant motive for 

drawing the Twelfth District, but also that the district fatled the test of “strict scrutiny,” because 

clearly it was not "narrowly tailored” to conform to the purported "compelling governmental 

interest” under the Voting Rights Act. /d. at 1907. Moreover, under Miller v. Johnson, $15 U.S. 

900, 115 8. Ct. 2475 (1995), the reliance by the State on Section 5 was foreclosed. Reversing the 

judgment of the lower court, the Court remanded the case for further proceedings. 

 



  

    

  

1 A -— 

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B. Aftermath uf Shaw I7 

When the Court rendered its opinion in Shaw I on June 13, 1996, the North Caroling 

General Assembly was in session; and the Shaw plaintiffs submitted to the legislature a "Petition 

for Prompt Redistricting.” Therein, after giving a brief history of the litigation, the Plaintlffs 

pointed out, inter alia, that: (a) In Louisiana, Georgla, and probably Texas, new plans would be 

in place for the 1996 elections, even though suits in those States were filed after Plaintiffs had 

sued in North Caroling; (b) ample time was avallable for the General Assembly to prepare a 

constitutional plan; (c) as a result of the transcribed public hearings in 1991 and the additional 

Anta assembled during the Iona Ligation. Adana iNCAPMALA: wus 0 wlily qeallable Aa 

preparing a constitutional pln; (d) the General Assembly would be free of the illegal constraints 

imposed by the Civil Rights Division in 1991-1992 under its erroneous interpretation of Section 

5: (e) excellent software was available for prepering a plan; (f) many experts had studied the 

North Cayolina plan and were available for consultation; (g) since neither party controlled both 

houses of the General Assembly, there was a “balance of power” to assure faimess and this 

balance might not exist after the 1996 elections; (h) incumbents and other candidates had plenty 

of notice of the possibility that the redistricting plan might be invalidated; (i) 8 new plan might 

induce filing by potential candidates who had been deictred by the unconstitutional plan; (j) if an 

incumbent or other candidate did not like the district in which he or she was placed by a new 

plan, that person could run in somo other district = just 8s two of the incumbent Representatives 

(Sue Myrick and Walter B. Jones, Jr.) had done; and (k) failure to enact a new plan for 1996 

 



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would result in further livigution and uncertainty.’ 

Despite this petition, the General Assembly adjourned on June 21, 1996, without ever 

addressing the issue of redistricting. When Gavemnor Hunt called the legislators hack for a 

further special sesvion to adopt 2 budget, the Shaw plaintiffs requested the Govemor to zk the 

legislator “10 enact now # new redistricting plan for use in the November, 1996 general 

election.” The Governor took no action; nor did the General Assembly cnact a new redistricting 

plan during the special session, 

On July 29, 1996, the three-judge district court in which the Shaw case was pending 

conducted a hearing to consider what remedy should be granted, At thet time, the Shaw plaintiffs 

urged that the district court take action to assure that a new redistricting plan be prepared for the 

1996 lection; and they offered evidence as wo various means by which an election under a new 

plan could take place on November 5, 1996, without confusion and with minimal disruption and 

cost. After a brief Wg, the district court ordered thas the 1992 plan not be used for any 

election afier 1996 and directed that the General Assembly enact 4 new plan by April 1, 1997, in 

  

®This pexition to the General Assembly and subsequent efforts by the Shaw plaintiffs to 
obtain a new plan for the 1996 election are detailed in a Petition for Writ of Mandamus filed in 
the Supreme Court of the United States by the Shaw plaintiffs, wherein they sought an order 
directing the threo-judge district court to prepare iis own redistricting plan for the 1996 election 
rather than wait until April 1, 1997 for the General Assembly to prepare a plan for future 
elections. Sec In Re Ruth O. Shaw, er al., Petitioners, (No. 98-445), 117 SLL, IY (1996). The 
bricf was accompanied by various cxlibits which provide farther detail az to the events which 
followed the Shaw II decision, 

"noose WIth Ens 1eguest was an dito publisked vit June 30, 1996 in the “Charlotte 
Observer,” wherein the newspaper reporter described a plan which was “colorblind” and “party- 
blind" and which he had drawn in two hours on the General Assembly public computer. 
Motwover, the plan placed only two incumbents in the same district; and theses two incumbents ~ 

Renn gant itive Som Mocih wind Adotnbe Wem asldsd 00d 0) LL Clee Ulla, 

6 

 



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default of which the count would draw its own plan. Thoreafier, the Shaw plaintiffs filed a 

petition for a writ of mandamus to order the three-judge court 10 prepare & redistricting plan; but 

this petition was not granted, 

C, The Cromarde v. Hunt Suit 

On July 3, 1996 — three weeks after the Court had rendered its opinion in Shaw 11 - 

Martin Cromartie and two other plaintiffs instituted the present action in the Eastern District of 

North Carolina to have declared unconstitutional the First Congressional District, in which they 

were registerad voters. Judge Malcolm J. Howard, to whom the case was assigned, held an 

expedited show-cause hearing on July 12, 1996 to determine whether to refer the case to the 

existing three-judge panel and to consider what issues, if any, “remained for a faderal court to 

decide in this matter,” However, before any further proceedings took place, Judge Howard, by 

consent, entered a stay order to await the outcome of the Shaw litigation. Thereafter, by consent, 

thet stay was extended from Hime 10 time. 

On April 1, 1997, thie General Assamhly Ruhmined a newly rnerted redistricting plan to 

the three-judge district court in Which Shaw was pending, After the Department of Justice had 

precleared this plan, the three-judge district court ordered the plaintiffa and plaintiff-intervenors 

in Shaw 10 advise the count by June 19, 1007 “whather they intend to claim thm! Him plug shoul) 

nas he ganmnynd hy the con heeane it Anes ant erie the conerimtionn) dafontn ie the Erman plan 

and to identify the basis for that claim.” The Shaw plaintiffs responded thut they believed, "that 

the new plan does not adequately cure the coastitutional defects in the former plan” for “[1like its 

| | " 5 vuvirT mw, pEAWWS ¢ WORWWS Ww) Adutriyy PHAN HOW WNT hh FMA PEAVY OT NL 

 



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sorutiny.”™ However, in their response, plainyiffs pointed out that because, “of the changes that 

haves bean made by the redistricting plan . . . none of the original Plaintiffs appear to have 

corvarevastogy Sa WEImensy MIN LIV FE Masih LILY OWVLIWGM Midt Ag (HRY UST YE MAU Calin That 

the new plan is unconstitutional, they recognize that due to their lack of standing, any attack on 

the constitionelity of the new redistricting plan should bo undertaken in @ separate action 

mpintaingd by partons wim have nanding * Snhanquantly, an September 12, (997, the Show 

Alte vend filed a per canis Musonunduin Spinton which, 

close[d] by_noting the limited has nt_the approval of the plan that we are 
rye) Ge gives in the nome of thin lripasiea. Te de mesg Ug th. doen 
of this civil action as that is defined by the parties and the claims properly before us, 
How, that iwann (hae we only apprave the plan uv an sdequate remedy tor the 
specific violation of the Individual equal protection rights of those plaintiffs who 
successfully challenged the legislature'a creation of former Distrier 12. Our approval 
thus doas not ~ cannot ~ run beyond the plan's remedial adequacy with respect to 
those parties and the equal protection violation found as to former District 12. 

On September 22, 1997, the Shaw plaintiffs filed a motion under Pedaral Rule of Civil Procedure 

59(e) to amend certain phrasing in & memorandum opinion; but this motion was navar granted, 

After the rermination of the Shaw litigation In September 1997, the Plaintiffs in 

Cramarrie v. Hunt moved on October 10, 1997 for dissolution of the stay which had been entered 

  

‘They pointed out that {t]he new plan fragmonts counties and cities unnccessarily, 
ignores communities of interest, and remains bizarre in appearances. The differences between the 
new plan's majority-black Twelfth District and the unconstitutional majority-black Twelfth 
District of the earlier plan are cosmetic, and the creation of the new Twelfth District was 
predominately motivaied by race.” Furthermore, the new Twelfth District and new First District 
such, “Improperly relies on the unconstitutional earlier plan and so violates the principles 
established in Abramy v. Johnson Nos. 95-1425, 95-1460, 1997 U.S. Lexis 3863, which was 
decided today, June 19, 1997. Likewise, the Twelfth and Firat Districts in the new plan reflect 
the continuing efforts of the Department of Justica to interpret and apply sections of the Voting 
Rights Act in an unconstitutional manner, and also for this reason the new plan violates Abrams 
v. Johnson." 

 



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hy consent of the parties, *'to await the enactment and preclearance of a new redistricting plan 

and the termination of proceedings in Shaw v. Hunt." At that same time, an amended complaint 

was lodged with the Clerk of Court for the Bast District of North Caroling; and when an order 

dissolving the stay had been entered on October 17, 1997, the “Amended Complains and Motion 

for Preliminary and Permanent Injunction” was filed. The Amended Complaint wes filed not 

only in behalf of plaintiffs from the new First Congressional District but also in behalf of 

plaintiffs who were registered voters In the new Twelfth District. The Defendants moved to 

enlarge the time to respond 10 the amended compldint, and on November 23, 1998, filed their 

answer to the amended complaint. 

Near the end of 1997, there also was pending before a Yhree<Judge district court in the 

Easterns District of North Carolina a case, Daly v. High, 5:97-CV-75-BO, which challenged not 

only the 1997 congressional redistricting plan, but also the legislative reapportionment plan 

sngiten] By tha Senera) Assembly fn 1992. On Tannary 11 1998 Tivdiga Howard eninmed an neder 

white Js abate? teint “tiers bins wlnly beens mppoinied by the lief Judge of dae Pourth Circoli 

pane! of three fndpes, and Duly v. High inchides the North Caroline Congressional Nisiricts Qne 

and Twelve and other matters; therefore, based upon judicial cconomy, the clerk of this court is 

directed to reassign this case to Chief Judge Boyle. Chief Judge Wilkinson of the Fourth Circuit 

Court of Appeals is designating the same panel to this cuse.” 

The amended complaint had itself included a prayer for proliminary injunction 

prohibiting congressional elections from taking place under the 1997 congressional redistricting 

plan. Renewing that prayer, Cromartie and his fallow plaintiffs on January 30, 1998, filed a 

motion for preliminary injunction, and on February 3, 1998, they also moved for summary 

]  



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» 

judgment. On Murch 3, 1998, Defendants responded with their crosé-motion for summary 

judgment, 

Tr. The Tlcaring on Mareh 31, 1008 

On March 31, 1998," the court conducted o hearing on the vanous motions pending 

bafora it. During the hearing, the cours had before It 8 map of the 1302 redistricting plan and a 

map of the 1997 plan; and these maps were discussed extensively by ronnsal in their arguments 

Plaintiffs had submitted affidavits from varions sxpons: these inclided Professor Timothy 

O'Rourke and Dr. Ron Weber, whose names should bo familiar to the Court because of their role 

SEMI TON ot 10 LED: JWI, EAI, TW 3 WE + TIONG TNE | SS BEARD § Bef 

The Plaintiffs also presented detailed demographic data which had been obtained from the public 

computer used by the General Assembly in preparing redistricting data. Alp before the three. 

JURE GAFINICT CONN WOrD artiaavats from the Chars of the House und Senaw Redisiriciing 

Eommbirn of He Nendo §isoal damandily an to Ba tive fer advoitiog a (an. 

Afier more than two hours oI argument by counsel, With quesiOns py ne court, Ine tee JUOges 

took the motions under advisement. 

Three days later, the court entered its order granting Plaintiffs’ motions for summary 

judgment and for preliminary and permanent injunctions. The court also requested the parties to 

file their responses by April 8, 1998 as 10 how the elections should be scheduled. On Monday, 

etd Be Jofeede cungpended wily finns Hee Jab lal conn Ih 2B Bod, 1d 

  PORTA Tae 

Fnininlly, a hearing was set for March 1K, 1098, hut the ooust postponod the hoaring until 

Dneoh 31 an that Rinineiffo' nonnont Bahinoom 0 Bums condi eeovosr som  Ceon sow 

on February 27, 1998, 10 allow his meaningful participation in the preparation for hearing and the 
hearing Itself. 

10 

 



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also filed in this Coun their Emergency Application {or a stay. 

ARGUMENT AGAINST GRANTING A STAY 

Summary of Argument 

The requirements are demanding for grant of an application for stay under circumstances 

like those of the present case, where a three-judge court composed of judges quite familiar with 

the issues involved has determined that summary judguient should be granted und an injunction 

entered.’ 

The preceding history of the congressional redistricting litigation in North Carolina 

makes clear that a continuing effort has been made by various plaintiffs to overtum the flagrant 

racial georymander. The Coust’s Opinion in Shaw v. Reno should have made clear the 

handwriting on the wall; but the State defendants chose to ignore the meaning of that Opinion. 

As a result, the citizens of North Carolina have been represented in Congress for nearly six years 

-— and are currently represented — by persons elected pursuant to an unconstitutional plan in which 

racial motives predominated. Unless the now plan is replaced, this will persist for at least two 

more years. 

The 1997 plan carries forward many of the unconstitutional features of its 1992 

predecessor. For example, the map of the 1997 plan —~ which Plaintiffs are lodging with the 

Court = makes clear that tho “new” Twelfth Djstriot has many similarities with the “old” Twelfth 

District, which the Court will vividly remember from its view of the map of the 1992 plan during 

  ik i doi ito hi ad 

“District Judge Voorhees, who joined in the judgment for Plaintiffs, {5 especially familiar 
with the issues raised by North Carolina's racially gerrymandered redistricting, He was a 
member of the three-judge district court in the Shaw litigation and twics the Supreme Court took 
the position advocated by his dissent in the lower count. Shaw I and Shaw JI. Canainly he is 
well-positioned to recognize the similarity between the 1992 plan and the 1997 plan. 

11 

 



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the Shaw argument. These similarities are strong “circumstantial evidence” that the motive of 

race, which was predominant in the 1992 plan, was ulso predominant in the 1997 plan. Unlike 

any of the other districts, both the “old” and the "new" Twelfth District split every county which 

they touched, and were the antithesis of geographical compactness. These “significant 

distinctions from traditional redistricting principles” convey ths forbidden “message that political 

identity is, or should be, predominantly racial.” Bush v. Vera, 116 8.Ct. 1941, 1962 (1996). The 

Defendants’ awn evidence makes clear that the 1997 plan was based on the unconktitutional plan 

and to allow the use of the unconstitutional plan in this mammer, “would validate the very 

maneuvers that were a major cause of the unconstitutiong! districting.” Abrams v. Johnson, 113 

§.Cr. 1925, 1932 (1997). Clearly, the 1997 plan is the “fruit of the poisonous tres,” is tainted by 

the unconstitutionality of the plan [rom which iy derives, and is race-based. 

Just as in Shaw v. Hunt, the Defendants have used “post hoc rationalizations™ to defend 

the unconstitutional gerrymunder, They have attemptad to substitute for “geographical 

compactness” a concept of “functional compactness” — which is predicated on racial 

stereotyping. They have ignored the harms that have already heen inflicted upon the voters of 

North Carolina by the past six years of racial gerrymanders ~ harms which include increase in 

racial polarization and loss of voiers' confidence in the electoral process and in representatives, 

They have exaggerated the disruption that will result from failure to terminate immediately any 

further retlons under the existing plan and have ignored the danger and uncertainty that will 

exist if 8 sIay is now granted in enjoining the use of a plan which hus been adjudged 

wneonstiwitional and illegal. 

12 

 



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I. The Standard ls Demanding for Grant of an In-Chambers Application for a Stay. 

In Whalen v. Roe, 423 U.S. 1313 (1975), Justice Marshall stated the standard by which a 

single Justice decides whether to grant an In-chambers application for a stay. There Justice 

Marshall explained: “To prevail. , , the applicant must meet a heavy burden of showing not only 

that the judgment of the lower court was erroneous on the merits, but also that the applicant will 

suffer irreparable injury if the judgment is not stayed pending his appeal.” Jd. at 1316, Justice 

Marshall then quoted Justice Powell's decision in Graves v. Barnes, 405 U.S. 1201 (Powell, J. in 

Chambers) setting out the considerations pertinent to evaluating these two factors: 

As a threshold consideration, Justices of this Court have consistently required that 
there be a reasonable probability that four members of the Court will consider the 
Issue sufficiontly meritorious to grant certioruri or to note probable jurisdiction. Of 
equal importance in cases presented on direct appeal - where we lack the 
discretionary power to refuse to decide the merits - is the related question whether 
five Justices are likely to conclude that the case was erroneously decided below. 
Justices have also weighed heavily the fact that the lower court refused to stay its 
order pending appeal, indicating that it was not sufficiently persuaded of the 
existence of potentially irreparable harm &s a result of enforcement of its judgment 
in the interim, 

Id. at 1316-17 (citations omited), 

Justice Marshall also wrote that “[a] single Justice will grant u stay only in extraordinary 

circumstances,” and that a "judgment of the lower court, which haz considered the maner at 

length and close at hand, and has found against the applicant both on the merits and on the need 

for a say, is presumptively correct.” Id. at 1316. 

In Lucus v. Townsend, 486 U.S. 1301 (1988), Justice Kennedy stated: “In appropriate 

canes, a Circuit Justice will balance the equities to determine whether the injury asserted by the 

applicant outweighs the harm to other parties or the public.” Jd, at 1304 (citations omitted). That 

13 

 



F-411 APR-08-88 02:31PM Ji na +7043345654 ® 7-517  P.24/41 

case involved a challenge to a bond referendum election. Id. at 1302. According to Justice 

Stevens, when a stay is sought in a case within the appellate jurisdiction of the Supreme Court, 

an initial inquiry should be whether the five Justices are likely to conclude that the case Was 

erroneously decided below, Williams v. Zbaraz, 442 11.5. 1309 (1979)(Stevens, J., denying 

application for stay). CF. Gregory-Portland Indep. Sch. Dist. v. United States, 448 U.S. 1342 

(1980)(Rehnguist, J., denying application for stay). 

11. The Judgment of the District Court Was not in error, 

One of the requirements for granting an application for w stay Is that the applicant 

establish ther the judgment being appealed was in error on the merits. Applicants for the stay are 

unable to present any convincing argument thay the district court eered in rendering judgment. 

Instead, the evidence put before the district court demonstrated convincingly that Plaintiffs were 

entitled to thelr requested relief, 

A. North Carolina's current ‘Twelfth District ia unconstitutionally tainted by the 

redistricting plan struck down by the Court in Shaw v. Hunt, 

Although Respondents and others have occasionally refarrad to racial gerrymanders as 

“crimes against the Constitution,” they recognize thar criminal law is quite different from 

redistricting Jaw. Nonetheless, thors arc instances when criminal law concepts may have 

relevance to other arcas of law. For example, Baison v. Kenmucky, 476 U.S. 79, 106 S.Ct. 1712 

(1986), and Powers v. Ohio, 499 U.5. 400, 111 S.Ct. 1364 (1991), which precluded the 

prosecution from use of race-based peremptory challenges, were precadents relied on by Justice 

O'Connor in Shaw I in forbidding race-based creation of congressipnal districts. 

Plaintiff-Respondents submit that the criminal law concept of “fruit of the poisonous 

14  



APR-08-88 02:32PM UB CG +7043345654 ® 7-817 P.25/41 F-4l1 

tree,” of. Nardone v. United Srares, 308 U.S, 338 (1939), is based on a premise cqually applicable 

1 redistricting — namely, that it must be shown that the teint of the original wrong-doing has 

been completely removed. Cf. Wong Sun v. United States, 371 U.S. 471 (1963 (admissions 

made efter an 1llegal search); Brown v, lllinois, 422 U.S. 390 ( 1975) (confession as the “fruit” of 

un illegal arrest). Likewise, if a second confession is made after an involuntary confession, it 

must ba shown that the formar did not produce the luner. In United Siares v. Wade, 388 1.5, 218 

(1967), the Court ruled that after an improper lineup had been conducted the government could 

use Bn in-court identification only if it established by “clear and convincing evidence” that the in- 

cowrt identification was bused on observations of the sugpect other than the lineup observavion. 

Another enalogy is to the protoction of a witness against any derivative use of immunized 

testimony. Cf. Kastigar v. United States, 406 U.S. 441 (1972); Murphy v. Waterfront 

Commission, 378 U.S. §2 (1964); U.S. v. North, 910 F.2 843 (D.C. Cir. 1990). 

As a matter of common sense, the principle that evidence cannot be admitted unless it is 

shown to have a source independent of proven illegal governmental conduct would suggest that a 

redistricting plan should not be viewed as being constitutional unless it is shown 10 have a source 

independent of a prior, unconstitutional plan which it has replaced. The Court seems to have 

accepted such g rationale when in Abrams v. Johnson, 113 8.Ct. 1925 (1997), It upheld a court- 

drawn redistricting plan which had been based on the 1972 and 1982 Georgia districting plans - 

instead of on a 1992 plan which had been precleared by the Voting Rights Division, The Conn 

explained that “using the precleared plan as the basis for a remedy would validate the very 

manauvers which were a major cause of the unconstitutional districting,” 7d. av 1933. 

A comparison of maps of the 1992 and 1997 congressional distriots in North Carolina 

15  



APR-09-98 02:32PM Sin © neu nie +7043345654 » T-517 P.26/41 F-411 

reveals thas the 1997 plan is inextricably linked 10 the 1992 plan,’ and therefore is 

unconstitutional. The information obtained from the public access computer maintained by the 

General Assembly fully confirms this conclusion, ai do the affidavits of Plaintiffs’ experts. Bven 

the Defendants’ own evidence makes clear that the current plan is tainted by the earlier plan. For 

example, the affidavit of Representative McMahan? who chaired the House Redistricting 

Committee of the General Assembly, states that he and the leadership of the House recognized a 

need (0 "preserve the cores of the prior district to the extent consistent with our goal of outing the 

defects lo the prior plans,” McMahyn affidavit at 2. However, several of the prior districts were 

created as an integral part of drawing the racially gerrymandered 1992 plan; and when this ia 

considered, Representative McMuhan's statement amounts to an admission that the 1997 plan is 

tuinted by the 1992 plan. 

For almost two centuries, Mecklenburg County had never been placed in the same 

congressional district with Forsyth County or Guliford County. The 1991 plan also did not place 

thess counties in the same district; but after Section 5 preclearance had been denied by the 

Department of Justice in December 1991, a new plan wes quickly doveloped which created the 

infamous I-85" Twelfth District. Mecklenburg County was linked there with the other two 

counties because the General Assembly capitulated to the erronsous application by the Justice 

Department of Section $ of the Voting Rights Act, 42 U.S.C. 1973b. As the Coun ruled in 

Miller v. Johnson, supra, this application of Section 5 was unauthorized and unconstitutional; 

and as noted above, the Court subsequently made clear in Abrams v. Johnson, supra, that an 

  

"These maps are being 1odged with the Court by Respondetits to facilitale comparison. 

*This affidavit is Appendix 8 to the Petitloness’ Bmargency Application. 

16  



    APR-08-88 02:33PM Ga | +7043345654 K T-BI7 P.27/41  F~-Al] 

unconstitutional plan must not by relied upon in awemptifig to draw a remedial plan. Yeu, in the 

instance of the Twelfth District, this seems to be exuctly what has occurred - namely, an 

unconstitutional, race-based plan provided the foundation for the current Twelfth District, 

Although none of the plaintiffs in Shaw v. Hunt had standing to attack the First District, it 

seems obvious that this district = which stretched from the Virginia border almost down to South 

Carolina and divided numerous countios - was also an unconstitutional gerrymander end would 

have heen ovenurned by the Court if any of the plaintiffs had been registered voters in that 

district. Morsover, the gorrymandered First and Twelfth Disriots caused a “ripple effect” so that 

ie North Carolina plan contained four of the twenty-sight least compact congressional districts 

in the country after 1992, The acknowledged effort to “preserva the cores of" these “bizarre” 

congressional districts in North Carclina makes clear that the districts of the 1997 plan are the 

“fruit of the poisonous tree.” 

Although Shaw I does not require the application of traditional race-neutral redistricting 

principles, failure to adhere to those principles is another circumetance that tends to establish that 

it was derived from the earlier plan, which lacked compectnsss, and also 10 show that the new 

plan is race-based, One important principle in redistricting is that of geographical compactness. 

Tts importance was cmphasized by the holding in Thornburg v. Gingles, 478 U.S. 30 (1986), that 

no action under Section 2 of the Voting Rights Act, 42 USC. 1973, can be successfully 

wantin unless, along with other preconditions, it can be shown that 4 geographically compact 

majority-black district could be created. The affidavit of Senator Roy Cooper, Chair of the Senate 

~ Redistricting Committee,” states that in curing the constitutional defects of the earlier plan, one 

a® S_ ——   

"Cooper's affidavit is Appendix 7 vo Petitioners’ Application. 

| 17 

 



    APR-098~98 02:33PM i Ld +7043345654 » 7-817 P.28/41 F-Al1 

factor emphasized was “functional compaciness (grouping citizens of like interests and needs).” 

Cooper affidavit at 3. The General Assembly's use of “functional compactness’ as an alleged 

factor in drawing the plan is itself u suspicious circumstance because, in defending the 

redistricting plan a¢ wial and on appeal in the Shaw litigation, the defendants relied 

unsuccessfully on “functional compactness.” 

Unlike “geographical compactness,” which, as explained in Professor O'Rourke's 

affidavit, iv subject to objective measurement, ‘funcrional compactness is 8 Very vague erm 

which i2 not really subject to any objective measure, As used by the defendants in Shaw, and 

now again by Defendants in this case, “functional compactness,” when correctly understood, 

means the grouping of persons of the same race and therefore is grounded on the unconstitutional 

premise that persons of the same race necessarily are “of like interests and needs,” no matrer 

where they may reside. As appears from all the evidence, Senator Cooper is using "functional 

compactness” in the same misleading manner that the tenn was used by the Shaw defendants, 

Senator Cooper specifically defends the Twelfth District becouse It was & functionally 

compact, highly urban district jolning together citizens of Charlot and the cities of the 

Piedmont Urban Triad.” I a1 4. The spuriousness of this defense is vividly revealed because in 

the Twelfth District as now constituted — just us in the Twelfth District as previously constituted 

— the obvions assumption is that the substantial concentrations of African-Americans in 

Mecklenburg County have less community of interest with their white neighbors than with black 

voters in Greensboro, High Point and Winston-Sulom. The circumstance that, for almost two 

hundred years, Mecklenburg County had not been linked in a congressional district with Forsyth 

and Guilford Counties, and that this occurred in January of 1992 only as a result of an 

18 

 



    APR-08-88 02:33PM Salis © GL +7043345654 a 7-817 P.20/41 F-411 

unconstimtional application by the Justice Department of Section 5 of the Voting Rights Act, 42 

U.S.C. See. 1973h, makes clear that this joinder is predicated on a plan that Is unconstitutional. 

This reliance on an unconstitutional plan is itself unconstitutional and does not lead to remedying 

the previous unconatitutionality, Cf. Abrams v. Johnson, supra, 

Senator Cooper alao defends the new First District as "a functionally compact district 

joining together citizens in most of the rural and sconomically deprossed counties in the northern 

and central coastal regions of the State.” Cooper affidavit at 5. This invocation of “functional 

compactness” us to the First District would be more plausible if all of the citizens in these 

counties had been placed in the district instead of ten out of the district's twenty-two counties 

being divided in the manner described in Lee Mortimer's af fidavit for the Plaintiffs.'? 

The affidavits of both Scnaior Cooper and Representative McMahan refer fo a goal of 

maintaining the current panisen balance of &ix Democrats and six Republicans in Congress. 

However, in context, this means preserving incumbents who have been elected under a 

constitutionally flawed plan ~ including two incumbents elected from race-based majority-black 

districts 10 achiove a yuota mandated by the Voting Rights Division of the Department of Justice. 

A goal of maintaining the quota of two African-American representatives and ten white 

representatives from North Cooling cen hardly be considersd remedying a constitutional 

violation: instead, it leaves all of the “fruit of the poisonous tree” undisturbed. 

Protecting Incumbents who have been unconstitutionally elocted appears as inappropriate 

as it would be to allow persons lo retain property which they hed acquired illegally or in violation 

  

19This affidavit is based on data provided by the General Assembly's public pocess 

computer. 

19 

 



    APR-08-98 02:34PM fd Rion +7043345654 » 7-617 P.30/41 F-411 

of trust, Cf, Snepp v. United Stares, 444 US. 507 (1980). There seems to ba an irony in the 

circumstance that in opposing Plaintiffs’ motion for u preliminary Injunction, the Defendants 

Filed six affidavits from Incumbent members of Congress — all of whom explained how 

disruptive it would be if the 1997 plan were not used for tha current election. Of course, the 

Defendants submited no affidavits from any of the cundidutes challenging these incumbents. 

Whether or not the incumbents should be viewed as having "unclean hands,” it does seem 

irrationa) thas protecting tham could justify retention of some of the worst features of a plan 

which violazed the Equal Protection Clause of the Fourteenth Amendment, 

Senator Cooper Attempts to defend the Twelfth District because it “is a Democratic Island 

in a Jargely Republican sea,” Cooper affidavit at 7, so that it fulfills the alleged partisan purposes 

of the plan. However, this assertion does nol correspond to facts evident from the redistricting 

plan and the related demographics. In this connection it must be recognized that 95% of the 

Afrlcan-Americans who are registered to vote in North Carolina are registered as Democrats, 

Thus, it is easy to disguise a race-based congressional or legislative district as being motivated by 

partisan objectives. However, use of such a disguise scems at udds with this pronouncement in 

Bush v. Vera, 116 8.Ct, 1941, 1956 (1996): 

But to the extent that race is used as a proxy for political characteristics, a racial 

  

"Mn this connection, see the affidavit of Robinson O, Bverett and the pages attached 

thereto from the transcript of testimony given in the trial of Shaw v. Hunt by Representative 

Melvin Watt, Congressman from the Twelfth District and Gerry Cohen, who was the principal 

architect of the 1992 plan. According to Watt, 95% or moro of African-American in the state 

who registered to vote were registered as Democrats. According to Cohen, the percentage was 
95% or above in “urban” areas, and 97 or 98% in “rural” seas. The affidavit of Dr. Petérson, 

which is Appendix 10 to the Emergency Application, appears to be fully in line with these 

estimates; and Plaintiffs are unaware of any lower estimates of Demogratic registration among 
African-Amaticans in North Carolina, 

20 

 



APR-08-98 02:34PM em +7043345654 fA 1-517 2:P.31/A1  F-41] 

stereotype requiring strict scrutiny is in operation.” 

Significantly, an examination of predominitely black precincts in Mecklenburg County 

which were placed in the Twelfth District — precincts which therefore are also predominately 

Democratic ~ reveals that, in many instances, they are adjuoent to precincis thet were 

predominately white and also predominately Democratic but which were placed in the 

neighboring Ninth Distriet. Thus, white Democrats in Mecklenburg County were left to sink in 8 

“argely Republican ses,” but black Democrats were placed in the Twelfth District in order to 

assure that an African-American, Melvin Watt, would be reeleoted 1o Congress. The same 

observation can be made with rekpect to precincts in Guilford and Porsyth Counties. 

At the March 31 hearing, the three-judge district court had before it specific demographic 

information’? as to several predominately white precincts adjacent to — but excluded from = the 

Twelfth Congressional District. As reflecied in the following char, each of these predominately 

white precincts = which were Democrutic precincts in terms of both registration and 

performance ~ was excluded from the adjacent Twelfth District: 

  IY 

na somewhat similar vein, the Court pointed out in Powers v Ohio, supra, that "tace 

cannot be & proxy for determining juror bias or competence.” 

“This demographic Information and maps related thereto are atiachod us Exhibit 9 to the 

Respondents’ appendix. 

“Performance was gauged in relation to the results in the celebrated 1990senatorial race 

wotween incumbent Senator Jesse Helms and Democratic challenger Harvey Gantt, an African- 

American who had previously been mayor of Charlotte. 

21  



APR-08-88 02:34PM Yodan din al +7043345654 A 1-517. P.32/41 = F=41) 

Precingl 

Guilford County 

Forsyth County 
1408 70.78% 

1422 66.66% 
1427 78.77% 

Mecklenburg County 
89.23% 

85.47% 
84.93% 

The Defendants have contended that the boundaries of the “new” Twelfth District were 

draw 10 assure that a Democrat would be electad to Congress from that district. However, they 

fail to mention that the Democrat to be elected was to be an African-American —~ indeed, the 

incumbent African-American Representative — and that, as a practical matter, the General 

Assembly did not intend for a white Democrat to bo elected. Although only forty-seven percent 

of the total population of the “new” Twelfth District was African-American, a substantial 

majority of the registered Demncrats were African-American and jt was assumed and intended 

that they would nominate an African-American in the primary." 

Senator Cooper's affidavit is somewhat disingenuous when it asserts thus the First and 

Twelfth Districts were configured so that they would be Democratic-leaning and partisan balance 

would be maintained. Id. at 5. Consequently, ascording to Cooper, “heavy concentrations of 

Democratic voters in the cities of Rocky Mount, Greenville, Goldsboro, Wilson and Kinston” 

  

Of course, it was unlikely that there would be a primary, and in fact, no candidate has 
filed to challenge the incumbent in the 1998 Demogratic primary. 

2  



    APR-08-88 02:35PM Gein Tsmenaalic ang +7043345654 % 7-817 P.33/41 F-411 

were includad in the Fist District; and likewise. “heavy concentrations of Democratic voters in 

Charlot, Greensboro wnd Winston-Salem” were placed in the Twelfth District, Senator Cooper 

does not mention that these “heavy concentrations” were of African-American Voters, so that 

inevitably they were also “concentrations” of Democrats. Meunwhile, white Democrats in 

nearby precincts were placed in other predominately white congressional districts. In this 

respect, the 1997 redistricting plan retained the rains of the 1992 plan. 

The affidavit of David W_ Paterson, Ph.D., suggest that “political affiliation might 

explain as well 85, or better than, race the houndary of District Twalve” in the new plan. 

Peterson concluded that “there is a substantial correlation betweon the path taken by the boundary 

of the Twelfth District and the political prefersnces of the residents of the precincts touching that 

boundary, the tendency being to include precincts within the district which have relatively high 

Democratic party repreaentation.” Supra, n. 11, at page 2, However, Peterson also concludes that 

there is “a substantial correlation hatween the path taken by the boundary of the Twelfth District 

and the racial composition of the residents of the precincts touching that boundary, the tendency 

being to include precinets within the district Which have relatively high black representation.” 

Ibid. Finally, he concludes “that the path taken by the boundary of the Twelfth District can be 

attributed to political considerations with at least as much statistical cenainty #s it can be 

attributed 10 racial considerations.” Ibid. This third conclusion Is almost inevitable in light of the 

undisputed facs that ~ as mentioned cartier - 9S% or more of the black voters in North Carolina 

are registered as Democrats. Thus, It is always possible to coniond that a racial gerrymander is 

23 

 



    APR-09-98 02:35PM BE +7043345654 » 7-817 P.34/41  F-411 

getually for partisan purposes.’® Much more significant in determining the purpose with which 

the “new” Twelfth District was drawn is the circumstance that predominately black Democratic 

precincts in Charlotte, Greensboro and Winston-Salem were placed in the Twelfth District and 

adjacent Democratic-leaning white precincts wers often placed in other congressional districts. 

In short, the Peterson affidavit does not show that the taint of the original Twelfth District 

has been removed from its countarpart In the 1997 plan. Instead, by recognizing the "substantial 

correlation” between the boundary of the Twelfth District and the racial composition of those 

precincts, the affidavit corroborates Plaintiffs’ contention that the taint of the original plan sul 

persists with respact to the Twalfth District. 

B. North Carolina's Race-Based 1997 Congressional Plan Violates the Precepts 
of Shaw. 

In Miller v. Johnson, the Court slated thay: 

plaintiffs’ burien is to show, either through circumstantial evidence of 8 
district's shape and demographics or more direct evidance going to legislative 
purpose, that race was the predominant factor motivating the legislature's 
decision to place a significam number of voters within or without a particular 
district. To make this showing, a plaintiff must prove that the legislature 
subordinated traditional race neutral districting principles, including but not 
limited to compactness, contiguity, respact for political subdivisions or 
communitics defined by actual shared interests, to racial considerations. 

115 8.Ct. a1 2488. As the immediately preceding discussion has demonstrated, race continued to 

be the predominant factor In the creation of the “new” Twelfth District — as well as the “new” 

First District — juat gs it had been a predominant factor in the creation of their 1992 predecessors. 

Even If there had been no 1992 redistricting plan to provide strong evidence as to the 

  

"In Texas, this method was used in Attempting to defend the racial gerrymander and was 
not accepied either by the three-judge district court or by the Supreme Court. 

2 

 



    APR-09-88 02:35PM We pia ee +7043345654 » 1-817 P.35/A1  F-Al) 

predominant razial motive for the 1997 plan, the racial mouve for the later plan is easily 

discerned. In this connection, the Petitioners’ Application is somewhat misleading when it states 

that; 

the only facts plaintiffs presenled to support their motion for summary judgment were 

(1) that District 12 is composed of pasts of six counties; (2) that on average 70% of 

the white citizens residing in those counties are not assigned to District 12; and (3) that 

on average 70% of the black citizens residing tn those six counties are assigned to 

District 12. 

Petitioners’ App. at 13-14. This is a remarkable “summation” of the evidence presented to the 

district court by the Plaintiffs in the affidavits of Professor Timothy G. O'Rourke, Carmen 

Cirincione, Thomas A. Darling, Dr, Ron Weber, Les Mortimer, Robinson O, Bverett, Martin B. 

McGine, and others,” 

The affidavit of Professor O'Rourke, for sxample, pointed out that of this nation’s 433 

congressional districts, “[11f the 1992 rankings had remained unchanged, the new version of the 

Twelfth would still stand as the 430" least compact district on the dispersion measure and it 

would rank 423 on ths perimeter measure.” O'Rourke affidavit at 4. Thus, the Twelfth District 

remains one of the very least compact in the country and continues to ignore traditional race- 

noutral districting principles. 

As the Petitioners acknowledge, the Plaintiff-Respondents established that the “new” 

Twelfth District is composed of parts of six counties. Moreover, it is the only diswict in North 

Carolina that contains no “whole” counties. Indeed, Dr. Weber's doclaration ohserves that “[n)o 

single district in the country Is like North Carolina 12 in splitting 8s many as alx counties and 

  

"I'he appendix to this response contains the affidavits of the named persons and many of 
the attachments to those affidavits, 

25 

 



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subdividing 100 percent of them.” Waber daclaration at 35. He further describes the Twelfth 

District In this manner: 

the racial make-up of the pans of the six sub-divided counties assigned to District 12 

include three with parts aver 50 percent African-American and where in which the 

African-American percentage is under 50 percent. Almost 75 percent of the total 

population in District 12 comes from the thres county pans which are majority 

African-American in population. Mecklenburg, Forsyth, and Guilford counties 

which contribute almost 75 percent of the district's total population are located at the 

axtremas of tha district. The other three county pans (Davidson, Iredell, and Rowan) 

have narrow corridors which were designed to piok up as many African-American 

parsons from each of those counties to fill out the district to an ideal sized district. 

Id. a1 17-18, 

Dr. Weber's declaration makes clear that cities and towns were also divided along racial 

lines. Weber declaration at 30. The major cities jn the Twalvth District — Charlotte, Greensboro, 

Winston-Salem, High Point and Statesville — aru aplit in this manner. Jd. at 31. The samo Is rue 

of cities and towns in the First District such as Cinldsboro, Greenville, Kinston, Rocky Mount, 

and Wilson. Ibid. 

At the March 31 hearing, the Plaintiffs presented avidence that the 1997 congressional 

redistricting plan used narrow land bridges to make the Ninth District contiguous. As Professor 

O'Rourke's affidavit mentions, Precinct 77, in Mecklenburg County, contains 3,461 persons, 

eighty-six percent of whom are African-American, Furthermore, he observes that the General 

Assembly in its 

1998 redistricting plan aaches the northern half of Pracinet 77 and all but one of its 

3,461 persons to District 12 and leaves the southern half of the precinct — and but 8 

single person = {0 provide the cssential connecting Link between the two wings of 

District 9. The splitting of Precinct 77 closely resembles what ths Supreme Court 

condemned in Miller, ___ S.Ct . that is, the use of “land bridges” and split 

precincts in order to offect a sorting out of persons along racial lines. 

26  



APR-09-98 (02:36PM Ge urate +7043345654 7-817 .P.37/41  F-41] 

O'Rourke affidavit at 4 (emphasis added). Except for this two-mile wide land bridge, the 

Twelfth Diatriet would divide Mecklenburg County down the middle and the two wings of the 

Ninth District in Mecklenburg County would not be contiguous. /bld. 

The Plaintiffs also presemed evidence that the grouping of “heavy concentrations” of 

black voters in Charloite, Greensboro, and Winston-Salem was the result of the legislature's 

predominant racial motive. Charlotte is the center of an entirely diffsrent metropolitan ares from 

the Triad ~ which contains Winston-Salem, Greensboro and High Point. Charlotte is in a 

differant media marke! from these othst three cities; and they have entirely different economio 

interests. Clearly all the evidence demonstrates thas in drawing the Twelfth District, “race was 

the predominant factor motivating the legislature's decision to place a significant number of 

voters within or without a particular district.” See Abrams, 113 S.C, at 1931, quoting Miller, 

115 S.Ct. at 2488, 

In Shaw 1, che Court made the point that: 

A rempportionment plan that includes in ons district individuals who belong to the 
same race, but who are otherwise widely separated by geographical and political 
boundaries, and who may have little in common with one another but the colot of 
their skin, bears an uncomfortable resemblance to political apartheid. It reinforces 
the perception that members of the same racial group — regardless of their age, 
education, economic status, or the community in which thay live = think alike, share 
the same political interests, and will prefer the same candidates at the polls, 

113 5.C1. at 2828. This passage applies equally to ths “old” and “now” Twelfth District ~ as 

indeed to some of the other districts in the 1992 and 1997 plana. The “community of interest” 

and “functional compactness” justifications on which the Defendants relied at the district court 

hearing on March 31, 1998 ~ and apparantly stil{ rely in this Court — are really premised on the 

very racial stereotypes that the Court deplored in Shaw 1. Ibid, 

27  



  

   
   

APR-08-88 02:36PM GY sm +7043345654 a T-817 P.38/41 F-411 

It 13 clear that there is no “compelling governmental interest” to suppor tha creation of 

District 12. As a result of the manner in which the African-American population js dispersed 

throughout North Caroling - to which Justice O'Connor adverted in Shaw I - Section 2 of the 

Voting Rights Act cannot be used to justify the creation of the “new” Twelfth Districr. 

Moreover, the Petitioners do not atiampt to defend the Twelfth Diatrict on those grounds. 

III. The Balance of Equities is Against Granting a Stay. 

In Reynolds v. Sims, 377 U.S. 533 (1964), this Cours stated that; 

[Once 8 State's legislative apporticament scheme has been found to be 
unconstitutional, it would be the unusual cass in which a Court would not be justified 
in taking appropriate action to insure that no further elections are conducted under 
the invalid plan. 

Id. ax SBS. Petitioners’ application certainty does not present the “unusual case,” in which the 

Court should stay the action of the lower court. 

In 1992, the General Assembly enacted an unconstitational redistricting plan which -- 

although promptly and vigorously autacked as 8 vinlation of Equal Protection — was kept in affect 

for thres elections. The “new” redistricting plan, enacted on March 31, 1997 — just before the 

deadline set by the Shaw district court = retained many of the unconstitutional features of the old 

plan; and this was immediately brought to the attention of the State defendants by the Shaw 

plaintiffs, who, howaver, had no standing to attack it. When, immediately thereafter, the 

Plaintiff-Respondents filed an emended complaint lo set aside the racial gerrymander, the State 

Defendants attempted to disguise the unconstitutional features of the plan and to argue that the 

Twelfth District was 2 political, rather than a racial, gerrymander, and that it implomentad the 

spurious concept of “functional compantness,” which itself is predicated on racial stareotypes. 

28 

 



  

    APR-09-98 02:37PM shy miraiicea +7043345654 % 7-517 P.33/41 F-41] 

The three-judge district court pierced the disguise, entered summary judgment, granted the 

Plaintiffs an injunction, and thereafter refused to stay that injunction. Under the clrcumetanoes 

here, the Petitioners do not come to this Count with “clean hande.” 

Furthermore, they exaggerate the cost and disruption of a delay in the primaries. 

Significantly, during the 1997 Regular Session of the General Assembly, the Senate voied to 

delay primaries to Septambor, rather than conduct them in May, Moreover, three of the twelve 

incumbents have no opposition, snd so, for them, the delay is only significant if it results in the 

creation of new districts which are more competitive and generate challengers." Furthermore, if 

the primaries are not stayed, the candidates will be expending campaign funds under the shadow 

of a judgment that the districts in which they are campaigning are unconstitutional. In wim, if 

that judgment is ultimately upheld - as appears very likely ~ their efforts and expenditures will 

have been in vain. Under these circumstances, there is little reason for this Court to stay the 

injunction granted by the three-judge panel, which was “on the scene’ and thoroughly familiar 

with the specifics of this case, Sec Graves v. Barnes, 405 U.S, at 1204. 

The last section of Petitioners' application for w stay roveals the basic fallacy under which 

the State Defendants have been laboring for several years. They claim in their application that 

“no injury will result to Plaintiffs or any othel poreons if the district court's order is stayed.” In 

support of this proposition, they assert that the Plaintiffs alloged that the new congresalonel plan 

is causing “representational” and “stigmatic” Injuries; and then they add that “not one shred of 

evidence was ever presented by the plaintiffs to support that allegation.” Petitioners’ App. at 17. 

This contention reveals a basic misunderstanding of the points emphasized by the Court in ts 

  
_ hs i — 

WSueh a development would hardly be adverse to the public interest. 

29 

 



  

APR-09-08 02:26PM FROM-FERGUSONGIE IN, WALLAS ADKINS, GRESHAMASUM  +7043345654 T-517 P.08/41 F=411 

ost4t® Fax Nate 7871 Jom pages” 
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No, A753 
Ral   

In the 

Supreme Court of the United Stutey 
October Term, 1997 

  

JAMES B. HUNT, JR., in his official capacity as 
Govemor of the State of North Carolina, er al, 

Petitioners, 

Vv. 

MARTIN CROMARTIE, et al, 
Respondents. 

  

CERTIFICATE OF SERVICE 
  

1 certify that [ have this ninth day of April, 1998 caused to be served on Petitioners the 
faregning Waspansa in Opporition to Emergency Applisatian far Dis, Ividiap Aypral of (lo 
Liegiston o1 the Three-Judge Court for the United States District Coun for the Rastarn District of | 

Nord Caroling hy having A eany nmiledd. pewiage praspeid, hy Unlred Srotoo Mail to the foliswing 
addressee: 

Mr, Edwin M. Speas, Ir., Bag. 
Scuivr Deputy Astomey General 
Nuiih Cavling Depanment of Justice 
P.O. Box 629 

- 

Raluigh, MC 27600 / : 7 | ya” 

Robinson O. Everett? 
Anomey for the Plainuff-Respondents 
P.O. Box 586 
Durham, NC 27702 
Talophone: (919) 682-5691 

  

* Counsel of Raocord

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