Motion to Strike Affidavits Filed in Support of Plaintiffs’ Motion for Summary Judgment

    UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NORTH CAROLINA 
RALEIGH DIVISION 

Civil Action No, 4.96-CV-104 

MARTIN CROMARTEE, er al, 
Plaintiffs, 

MOTION FOR SUMMARY vs. 
JUDGMENT 

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

) 
) 
) 
) 
) 
) 
) 
) Defendants. 
) 

  

Pursuant to Federal Rules of Civil Procedure, Rule 56, Plaintiffs move for summary 
Judgment and in Support thereof they respectful] y show the Court: 

l. On June 13, 1996, the Supreme Court decided in Shaw v. Hunt, 116 S.Ct, 1894 
(1996), that the North Carolina Congressional redistricting plan adopted in 1992 
Was an unconstitutional racijal gerrymander and held that the five original 

plaintiffs in that action had standing to challenge the Twelfth District, where they 
resided, but had no standing to challenge the First District. 

2. A few days later, Plaintiffs Cromartie, Muse, and another Tarboro registered 
voter, instituted the present action which, attacked the First Congressional 
District, where they were registered voters. 

3 Because the Shaw plaintiffs were seeking to have a new redistricting plan put into 
effect for the November 1996 election by the three-judge District Court in which 
that case was pending, the three original Plaintiffs in this action and agreed with 
the Defendants to enter into a consent decree which would stay proceedings in this 

697S5-289-616: 7131 WHHANA/SNINSHY 11343N3 
10°d SO0°ON €0:9T1 86.50 084 

 



  

action to await conclusion of the proceeding in Shaw v. Hunt. 

4, In Shaw, the three-judge District Court declined to order that a new redistricting 

plan be put into effect for the November 1996 election, but did require the 

General Assembly to draw a new plan prior to April 1, 1997. Such a plan was 

ultimately enacted by the General Assembly late in March, 1997, and thereafter it 

was precleared by the Department of Justice and approved by the Shaw District 

Court. 

S. Subsequently, the stay that had been entered by consent in this action was 

dissolved and an amended complaint was filed by Plaintiffs Cromartie and Muse, 

as registered voters in the “new” First District. They were joined as plaintiffs by 

four others who claim standing to attack the “new” Twelfth District. 

6. In their amended complaint, the Plaintiffs prayed that the Court declare 

unconstitutional the 1997 Congressional redistricting plan and enter an order 

which both temporarily and permanently would enjoin the conducting of elections 

according to the plan enacted by the General Assembly in 1997. 

1. When first filed, this action was assigned to District Judge Malcolm Howard, but 

in January, 1998, a three-judge court was assigned to this case, pursuant to 28 

U.S.C. Section 2284; and a motion for preliminary injunction has now been filed 

in the three-judge court to supplement the prayer for relief in the amended 

complaint. 

8. Submitted herewith are the affidavits of Lee Mortimer, John Weatherly, Neil C. 
Williams, R.O. Everett and J. H. Froelich, Ir. As appears from these affidavits and 

from other evidence of which the Court may properly take judicial notice — such 

697S-289-616: 131 WHHANA/SNIASHY 11343N3 20°" 4d §00°0N 70:51 86.50 034 

 



  

as maps of the current districting plan and of its predecessor plans — no dispute 
exists with respect to the material facts, These undisputed facts establish that the 
Congressional redistricting plan adopted by the North Carolina General Assembly 
in 1997 is itself a racial gerrymander and that both the Twelfth and First Districts 
under that plan have beep drawn by the Legislature with a predominately racial 
motive and are tainted by being derived from the unconstitutional racially 
gerrymandered Twelfth and First Districts in the 1992 plan, 

9. The filing period for Congress, which commenced in early January, 1997, has 
already come to an end and there is urgency in obtaining a Judicial determination 
as to the unconstitutionality of the current redistricting plan, and especially with 
respect to the racially gerrymandered Twelfth and First Districts, which have 

choice in an election untainted by any racial gerrymander, it is imperative that the 
Coun quickly determine the constitutionality of the present plan, and especially of 
the two districts where plaintiffs reside, 

WHEREFORE, Plaintiffs respectfully move the Court to enter a summary judgment 
declaring that, in the 1992 redistricting plan, the First District — like the Twelfth - was an 
unconstitutional racial gerrymander, and also declaring that the Twelfth and First Congressional 
Districts under the 1997 plan are unconstitutionally getrymandered: and enjoining the use of 
these districts and of the current redistricting plan in the 1998 Congressional election or in any 

69VS-289-616: 131 WHHANA/SNINSHY 1133303 
$0°d S00°ON pO:ST 86.50 0384 

 



  

future election. 

wl Respectfully submitted, this the day of February, 1998, 

L2., 
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, Davis & Tittle, P.A. 

by: AA He Gen 
Martin B. McGee Sle 

State Bar No.: 22198 
Attomeys for the Plaintiffs 
P.O. Box 810 
Concord, NC 28026-0810 
Telephone: (704)-782-1173 

  
    

63rS-289-616: 131 WHHANA/SNINSHY 113¥3A3 
0d SO0°ON S0:ST 86.50 Qa4 

 



UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF NORTH CAROLINA 

RALEIGH DIVISION 

Civil Action No. 4.96-CV-104 

MARTIN CROMARTIE, et al., 
Plaintiffs, 

BRIEF IN SUPPORT OF PLAINTIFES' 
MOTION FOR SUMMARY 

JUDGMENT 

VS. 

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

Defendants. 

  

HISTORY OF CASE 

In March, 1993, five Durham, North Carolina voters filed an action in which they 

attacked as unconstitutional a redistricting plan which had been enacted by the General Assembly 

in January, 1992 after an earlier plan had been denied preclearance by the Department of Justice. 

Named as defendants in this action were the Attorney General of the United States, the Assistant 

Attorney General for the Civil Rights Division, the Govemor of North Carolina, and various 

other state officials. The complaint alleged that the redistricting plan had been drawn for racial 

reasons and was a violation of Plaintiffs’ Equal Protection rights under the Fourteenth 

Amendment, as well as their rights under the Fifteenth Amendment and Article I, Section 2 of 

the Constitution. Initially, the three-judge district court to which the case was assigned dismissed 

the action as to both the Federal and State Defendants. However, on direct appeal, the Supreme 

Court held that a valid claim for relief had been asserted against the State Defendants under the 

Equal Protection Clause of the Fourteenth Amendment. Shaw v. Reno. 509 U.S. 630, 113 S.Ct. 

2816 (1993). 

After remand to the District Court and intervention by additional plaintiffs and 

S0"d S00’ ON 80:67 86.50 034 63rS5-289-616:13L WHHANA/SNINSHY 113¥3n3  



defendants, the Shaw case was tried early in 1994 and resulted in a decision that although the 

  

redistricting plan was race-based, this racial gerrymander survived “strict scrutiny.” In turn, the 

Supreme Court reversed the lower court again and held that one of the two majority-minority 

atdints created by the 1992 plan had been race-based and could not survive the required “strict 

scrutiny.” The five plaintiffs lacked standing to attack the other majority-minority district 

because they were not registered voters in the district. Shaw v. Hunt, 116 S.Ct. 1894 (1996). 

A few days after the Supreme Court had ruled on | une 13, 1996 in Shaw, the present 

action was commenced by registered voters of Tarboro, North Carolina, who resided in the First 

District as it existed under the 1992 plan. Clearly they had standing to challenge the 

constitutionality of that district. However, a stay order was entered by consent, pending the 

~ outcome of further proceedings in the Shaw case. An effort by the Shaw Plaintiffs to obtain 

Judicial relief in time for the November, 1996 clection proved unavailing. 

Pursuant to court order, the General Assembly produced a new plan late in March, 1997, 

and submitted it for preclearance and for approval by the three-judge court. Both were 

forthcoming, and the Shaw liti gation came to an end. Thereupon in Olitabier, 1997, Plaintiffs 

Cromartie and Muse, along with several additional plaintiffs who were registered voters in the 

Twelfth District, filed an amended conplatnr. the stay of proceedings having been dissolved at 

their request. This amended complaint reiterated the claim that the First District in the 1992 plan 

was unconstitutional, and it also alleged that both the First and Twelfth Districts in the 1997 plan 

were unconstitutional. The State Defendants filed an answer and a group of voters connected 

with the NAACP moved to intervene on the side of the defendants. 

Although the case was originally assigned to District J udge Malcolm Howard, it is now 

before this three-judge Court, which consists of Circuit Judge Ervin and Chief District Judges 

90°d SO0°'ON S0:8T 86.50 0384 ~ 639rS-289-616: 131 WHHANA/SNINSHY 113¥3A3 

 



  

Voorhees and Boyle. Plaintiffs have renewed their request for injunctive relief, and also filed a 

motion for summary judgment. As the predicate for the injunctive relief, they seek a declaratory 

judgment that the “old” First District, which existed under the 1992 redistricting plan, was an 

unconstitutional racial gerrymander, and that the same is true for the current Twelfth and First 

Districts. 

ARGUMENT 

I. The First District Under the 1992 Redistricting Plan Was Clearly Unconstitutional 

At first glance, this Court might assume that the unconstitutionality of the First District in 

  
  

the 1992 plan is now a moot point, because that district has been altered by the new plan. 

However, in light of the obvious close relationship between the First District as it was drawn in 
1992, and the reconfigured First District, as drawn in 1997, it is important for this court to 

declare specifically that the District was unconstitutional. There seems little reason to discuss at 
length the flagrant unconstitutionality of the earlier First District because even the members of 

the three-judge district court which heard Shaw - although they divided two-to-one on many 

issues — agreed that the district was race-based; and if that be so, it seems clear from the opinion 

of the Supreme Court in Shaw v. Hunt, that this race-based district could not survive “strict 

scrutiny.” 

The First District, as created in 1992 and stretching from the Virginia line almost to South 
Carolina, was a majority-black district which foreseeably elected Eva Clayton, an African- 
American, as its representative. Under a 1991 redistricting plan, which was denied preclearance 
and never took effect, the majority-black First District — although “bizarre” in its shape — was far 
more compact than its 1992 successor; and this fact helps demonstrate that the 1992 version of 
the First District was not “narrowly-tailored.” The majority-black First District in the 1997 plan 

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£0°d SO00°ON 90:67 86.50 034 

 



    
EVERETT GASKINS/DURHAM TEL :919-682-5469 Feb 05°98 

is also more compact than the corresponding district under the 1992 plan; and this likewise tends 

15:08 No, 006 P02 

to show that the earlier plan was not “narrowly-tailored.” Under these circumstances it should be 

obvious that the First District, as drawn in 1992, was racially gerrymandered in an 

unconstitutional manner. 

I. The 1997 istricting Plan is Tainted nconstitutionalit 1992 PI 

Sometimes a decision in one arca of the law can provide guidance for deciding issues 

arising in a different area. For example, Batson v. Kentucky, 476 US 79, 106 S.Ct. 1712 (1986) - 

which held that race-based peremptory challenges violated the Equal Protection Clause and 

which relied, in part, on the stigma created by such challenges — was a precedent relied on by the 

Supreme Court in Shaw v. Reno, supra, when it invalidated racial gerrymandering on 

constitutional grounds. 

Plaintiffs submit that, in like manner, the Supreme Court decisions forbidding the use of 

the “fruit of the poisonous tree” are relevant in deciding whether to hold unconstitutional 

congressional districts which clearly are derived from earlier districts ruled invalid because of 

racial gerrymandering. The phrase, “fruit of the poisonous tree,” which was first used in 

Nardone v. United States, 308 US 338, 60 S.Ct. 266, (1939), expresses the principle that 

government officials are forbidden to make derivative or indirect use of a method or technique 

prohibited by statute — as in Nardone - or by constitutional provision — as in Wong Sun v. United 

States. 371 US 471, 83 S.Ct. 407 (1963) and Brown v. Illinois, 422 US 590, 95 S.Ct. 2254 

(1975). Another example of the attempt to assure that a constitutional protection is not 

circumvented was provided by United States v. North, 910 F.2d 843 (DC Cir. 1990), where the 

Court of Appeals for the District of Columbia Circuit ruled that the Independent Counsel had 

improperly circumvented the constitutional protection provided to Oliver North by an immunity 

 



    EVERETT GASKINS/DURHAM TEL :919-682-5469 Feh 05798 15:09 No .006 P.03 

grant. 

The 1997 redistricting plan is a clear example of an attempt to circumvent the intent of 

the Supreme Court’s rulings in Shaw v. Reno and Shaw v. Hunt. The affidavits that accompany 

the motion for summary judgment make clear that the Twelfth District, under the 1997 plan, 

would never have acquired its present shape had the General Assembly not attempted to 

perpetuate some of the most objectionable features of the earlier Twelfth District, which the 

Supreme Court held unconstitutional in Shaw v. Hunt. Prior to the 1992 plan, almost two 

centuries had passed since Mecklenburg County had been linked with Guilford County in the 

same congressional district. Each of these counties is the center of its own metropolitan area, 

and as the affidavits make clear, there is little, if any, community of interest between these two 

counties. Nonetheless, they have been linked together in the Twelfth District under the 1997 

plan, just as they were linked in the 1992 redistricting plan. The reason for the linkage in the 

current plan is obvious; it was an attempt to retain as much as possible of the previous race-based 

Twelfth District. Had there been no “1-85 District” in the 1992 plan, there would have been no 

Twelfth District in its present form. 

In Abrams v. Johnson, 117 S.Ct.1925 (1997), an attack was made on a judicially drawn 

redistricting plan on the ground that it did not accord with the legislative policy reflected in a 

plan enacted by the Georgia legislature after the 1990 census. However, the Supreme Court 

pointed out that the unconstitutional “maximization” policy of the Civil Rights Division had 

been primarily responsible for the configuration of the plan adopted in the 1990s and that 

therefore the earlier plan should be disregarded in evaluating the constitutionality of the court 

ordered plan. Thus in Abrams, the last expression of legislative policy that the district court was 

obligated to consider in drawing its own redistricting plan was the redistricting plan that had been 

 



    EVERETT GASKINS/DURHAM TEL :919-682-5469 Feb 05°'98 15:09 Npo.006 P.04 

. » 

enacted by the Georgia legislature after the 1980 census. In like manner, Plaintiffs submut that 

the plan formulated by the General Assembly in 1992 under the unauthorized and 

unconstitutional pressure of the Department of Justice should not have been used as a starting 

point in drafting the 1997 plan. Obviously it was used to a significant extent; and therefore the 

present plan is unconstitutional. 

On some occasions the Chairs of the redistricting committees which drew the 1997 plan 

have been quoted as saying that their plan was designed to maintain the current balance in 

Congress between six Democratic incumbents on the one hand and six Republican incumbents 

on the other. Here again, the “fruit of the poisonous tree” doctrine applies. At least some of the 

incumbents are in their present position as a result of the unconstitutional racial gerrymandering 

embodied in the 1992 plan. (This statement applies not only to Representatives Clayton and 

Watt, who are black, but also to white members of Congress who benefitted from the “packing” 

of African-Americans into two majority-black districts and the concomitant “bleaching” of 

several other districts.) To preserve incumbents is to give them the unwarranted “fruit” of a 

crime against the United States Constitution — a crime committed by the General Assembly — 

under the coercion of the Department of Justice — when it enacted the 1992 redistricting plan. 

In Snepp v. United States, 444 US 507, 100 S.Ct. 763 (1980), the Supreme Court refused 

to allow a former CIA employee to retain the benefits of his breach of his contract with the 

Agency. Indeed, the Court imposed a constructive trust to take away the ill-gotten gains derived 

from his breach. The twelve Congressional incumbents, whom the General Assembly intended 

to be beneficiaries of the 1997 redistricting plan, are in a position somewhat similar to that which 

Snepp occupied. A serious violation of the Constitution has taken place and they are seeking, 

with the aid of the General Assembly, to retain the benefits of that violation. Just as the Supreme 

 



EVERETT GASKINS/DURHAM TEL :919-682-5469 Feb 05°93 15:10 No .006 P.0OS 

Court in Snepp mandated a constructive trust to prevent ill-gotten gains, this Court should 

mandate remedial action which will deprive of their gains those incumbents who seek to veveflt 

from the racially gerrymandered congressional redistricting plan enacted in 1992 and now 

replicated in 1997. 

OI. The 1997 Congressional Redistricting Plan is Race-Based and Cannot Survive the Test of 
  

Strict Scrutiny 

The statistics contained in the affidavit of Lee Mortimer make clear that the 1997 

redistricting plan “subordinates to race all traditional redistricting principles, such as 

compactness and respect for county and municipal boundaries” (Mortimer affidavit at p. 3). For 

example, the Twelfth District contains parts of six counties; and in each county, “the maximum 

number of blacks and the minimum number of whites were identified and assigned to the 

Twelfth District” (id at p. 4). Thus, in Mecklenburg County, 84 percent of all blacks in the 

county, but only 27 percent of all whites, were placed in the Twelfth District; while only 16 

percent of all blacks, but 73 percent of all whites in the county were placed in the adjacent Ninth 

District. In Guilford County, 76 percent of all blacks, but only 25 percent of all whites, were 

placed in the Twelfth District, while 24 percent of all blacks and 75 percent of all whites, were 

placed in the adjacent Sixth District. In Forsyth County, 65 percent of all blacks, but only 8 

percent of all whites were placed in the Twelfth District, while 35 percent of all blacks and 92 

percent of all whites were placed in the adjacent Fifth District. Table 1 in Mortimer’s affidavit 

provides a compilation of these percentages and thereby demonstrates the way in which racial 

motivations predominated in the drawing of the Twelfth District and its neighboring districts. 

The conclusions to be drawn from Lee Mortimer's affidavit are corroborated by other affidavits 

from persons who have some personal knowledge of the history of the redistricting process in  



EVERETT GASKINS/DURHAM TEL :919-682-5469 Feb 05°88 

North Carolina in recent years. 

15:10 No .006 P.06 

In Miller v. Johnson, 115 S.Ct. 2475, 2488 (1995), the Supreme Court pointed out that 

“race was the predominate: factor motivating the [Georgia] legislature’s decision to place a 

significant number of voters within or without a particular district.” Therefore, those districts 

were unconstitutional as a violation of Equal Protection. The facts and figures concerning the 

current North Carolina redistricting plan reveal that the same unconstitutional methodology has 

been used here. 

The affidavits of Lec Mortimer and John Weatherly also make it clear that African- 

Americans can fully participate in the election of persons of their choice to represent them in 

Congress without having majority-black districts or districts in which African-Americans 

~ constitute close to a majority of the voting-age population. Indeed, Mortimer's affidavit 

demonstrates that even if the goals of racial gerrymandering were accepted, they could be 

achieved in North Carolina without the creation of dysfunctional districts like the Twelfth, the 

First and some others in the current North Carolina plan. Under these circumstances, the plan 

can hardly be termed “narrowly-tailored,” for African-American candidates would be able to run 

successful campaigns in districts that were not composed of concentrations of African-Americans 

linked together by corridors of white voters. 

IV. AJudicial Remedy Should be Provided as Quickly as Possible 
  

Since 1992 — through three elections — North Carolina registered voters have chosen their 

representatives to Congress from districts that not only violated traditional redistricting 

principles, but also contravened principles of equal protection and polarized the voters along 

racial lines. Now the voters should not have to wait through a fourth and fifth election before a 

constitutional plan is put into effect.  



   

  

EVERETT GASKINS/DURHAM TEL :919-682-5469 Feb 05°98 15:11 No .ODB6 P.0O7 

® » 

Drafting such a plan will not be difficult. Lee Mortimer’s affidavit suggests that a plan 

can be drawn quickly that would follow traditional redistricting principles and yet provide equal 

opportunity for black voters and black candidates. Plaintiffs do not object to allowing the 

General Assembly an opportunity to perform this task — if it is wilh to undertake swift action. 

Consistent with legislative action is the use of redistricting commissions, which can prepare a 

plan according to race-ncutral principles and then submit it to the legislature for a vote up or 

down. John Weatherly’s affidavit mentions that during the 1997 Session of the General 

Assembly, he proposed the use of a redistricting commission to prepare a plan. Special masters 

were used successfully in Texas in drawing a plan that would rectify some of the evils of racial 

gerrymandering there. The basic point is that alternatives are available to assure all the voters 

equal protection; and those alternatives should be utilized immediately to remedy the past 

violations. 

CONCLUSION 

The 1997 Congressional redistricting plan was predominately motivated by race — both 

directly and indirectly. It built upon the base of the 1992 plan; nS that base was unconstitutional 

in its origin and structure. Now a remedy should be provided swiftly and meanwhile the 

Defendants should be permanently enjoined against use of the present redistricting plan in the 

election of Representatives to Congress. 

Respectfully submitted, this the day of February, 1998. 

   



   
EVERETT GARSKINS/DURHAM TEL:919-682-5469 Feb 05°98 15:11 No.006 P.0OS8 

  

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, Davis & Tittle, P.A. 

by: 
  

Martin B. McGee 

State Bar No.: 22198 

Attorneys for the Plaintiffs 
P.O. Box 810 

Concord, NC 28026-0810 

Telephone: (704)-782-1173 

 



    

  

EVERETT GASKINS/DURHAM TEL :919-682-5469 Feb 0%'93 15:12 No.00O6 P.09 

: ® » 

CERTIFICATE OF SERVICE 

I certify that I have this day served the foregoing Motion for Summary Judgment and 

accompanying affidavits and the Brief in Support of Motion for Summary Judgment on the 

Defendants by mailing them a copy thereof, postage pre-paid, to the following addresses: 

Mr. Edwin M. Speas, Jr, Esq. 

Senior Deputy Attorney General 
North Carolina Department of Justice 

P.O. Box 629 
Raleigh, NC 27602 

Ms. Anita Hodgkiss 

Ferguson, Stein, Wallas, Adkins, Gresham, Sumter, P.A. 

741 Kenilworth Avenue 

Suite 300 

Charlotte, NC 28204 

  

Robinson O. Everett 
Plaintiff for the Attorneys 

 



  

EVERETT GASKINS/DURHAM TEL :919-682-5469 

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NORTH CAROLINA 
Eastern Division 

Civil Action No. 04-CV-104-H?2 

MARTIN CROMARTIE et al. 
V. 

AFFIDAVIT OF LEE MORTIMER JAMES B. HUNT, JR. in his 
capacity as governor   
LEE MORTIMER, being duly sworn, deposes and declares the following: 

[live at 4116 Livingstone Place in Durham, North Carolina, and have resided in Durham for nine years and in North Carolina for 40 years. Iam currently employed as a technical writer in Research Triangle Park, but from 1974-1980, I worked as a newspaper and broadcast journalist at the High Point Enterprise and other news organizations. I have ga degree in history with a minor in political science from Western Carolina University. 

Duning and after my journalism career, I have maintained a keen interest in politics and the political process, particularly issues relating to voting and representation, and have studied these issues extensively. I have written a number of articles on those subjects, which have been published in many North Carolina newspapers, including African-American newspapers and other publications such as The Journal of Common Sense, the Independent Weekly, The Beacon, and The Prism, 

I was appointed by Senate President Pro-Tem Marc Basnight to serve 
during 1996 on the General Assembly's Election Laws Reform Committee. This committee of 14 legislators and public members studied and 

] 

  

Feb 0598 15:12 No. 006° P..10



EVERETT GASKINS/DURHAM TEL :919-682-5469 Feb 05"98 18:12 :N0 006 P11 

recommended a range of clection-related proposals, some of which 
were enacted. I proposed legislation, which three study committees 
recommended, to authorize local governments to adopt proportional 
voting methods. The committee's co-chair, Sen. Wib Gulley, and another 
member, Sen. Leslie Winner, subsequently served on the General 
Assembly's Senate Select Committee for Congressional Redistricting. 

In April 1994, I was interviewed on National Public Radio (NPR) about a 
proposal I had designed for North Carolina Congressional elections using 
proportional voting. That proposal was subsequently publicized in the New 
York Times, the New Yorker, Congressional Quarterly, and USA Today. 
The Institute of Bill of Rights Law of the Marshall-Wythe School of Law at 
the College of William and Mary asked to include one of my articles in its 
Supreme Court Preview conference for Journalists and lawyers held 
September 22-23, 1995. 

I was asked by the plaintiffs in Shaw v. Hunt to provide expert testimony 
about congressional redistricting and representation issues. | was deposed 
by counsel for the defense and the plaintiffs on November 29, 1993, Then, 
as now, I have neither requested nor received a fee for my testimony. 

The Appendix outlines my additional qualifications to provide expert 
testimony on the Congressional redistricting process in North Carolina. 
It also includes a partial listing of my articles. Except as otherwise noted, 
the opinions in my analysis are based on official data from the 1997 
Congressional redistricting plan (maps shown in Exhibit A), or from 
voting returns reported by the North Carolina Board of Elections. My 
analysis and conclusions follow.  



NN 

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EVERETT GASKINS/DURHAM TEL : 919-682-5469 Feb 05°98 15715N0 006 P16 

I. Race still predominates in 12th and 1st Districts 

In late March 1997, the North Carolina General Assembly enacted a new 

Congressional redistricting plan (see Exhibit A) to replace the previous 

plan, which the U.S. Supreme Court ruled had used unconstitutional racial 

gerrymandering in creating the 12th District. The Court found that race 

was "the predominant consideration” in drawing the 12th District, and that 

the 12th District did not meet the test of “strict scrutiny." 

Although the 1st District was not directly ruled on by the Supreme Court, 

its severe misshapenness was cited in the Court's majority opinion. That 

severe misshapenness, in my opinion, indicates that race had predominated 

in determining the 1st District's boundaries. Sen. Roy Cooper, the 

chairman of the Senate Redistricting Committee, gave the same assessment 

in a meeting with Congressional incumbents—saying that if the former 

1st District were challenged, it would be declared unconstitutional. 

Both districts were redrawn in the 1997 redistricting plan, but it is clear 

from their resemblance to the previous districts that the redrawn districts 

are the "fruit of the poisonous tree,” and so, in my opinion, are irreparably 

tainted. I believe the new 12th District and 1st District would never have 

been drawn with their present boundaries—except for race. 

» New Twelfth District—The new district subordinates to race all 

traditional redistricting principles, such as compactness and respect for 

county and municipal boundaries. I can see no legitimate basis for the 

way disparate and geographically dispersed minority communities were 

grouped together. The new 12th District is, in my opinion, simply a 

makeover of the old unconstitutional district. 

 



  

EVERETT GASKINS/DURHAM TEL :919-682-5469 Feb 05’98 15:16 No .00OB P.17 

» New First District—Like the old 1st District from which it 

derives, the new Ist District is not narrowly tailored to meet a compelling 

state interest. The number of counties that are divided and the failure to 

produce a more geographically compact district demonstrate to me that the 

purpose was to classify and over-concentrate voters on the basis of race. 

IL 12th District's single-minded focus on race 

The new 12th District was reduced from 10 counties and three metropolitan 

areas—to six counties and two metropolitan areas. Though now shorter 

and wider, it could only be called "less bizarre" in appearance than its 

unconstitutional predecessor. Strictly speaking, the new 12th District is no 

longer a "minority-majority" district—47 percent of its population is black 

and 48 percent is "minority." However, | am not aware that any specific 

percentage of minority residents has been designated as a benchmark for 

determining whether a district is a racial gerrymander. I believe it is the 

process used to reach a result—rather than the result itself—that indicates 

racial intent. In the case of the new 12th District, the state's own data show 

unmistakably that voters were identified, classified, and assigned by race. 

In my opinion, three principal indicators reveal a racial methodology that 

subordinated all other considerations to race in redrawing the 12th District. 

» Voters assigned by race—The 12th District is made up of parts 

of six counties. In each county, the maximum number of blacks and the 

minimum number of whites were identified and assigned to the 12th District 

(see Table 1). In Mecklenburg County, 84 percent of all blacks in the county, 

but only 27 percent of all whites, were placed in the 12th District; while only 

16 percent of all blacks, but 73 percent of all whites in the county, were 

 



   

  

EVERETT GASKINS/DURHAM TEL :919-682-5469 Feb 05'9% 

placed in the 9th District. In Guilford County, 76 percent of all blacks, but 

5:16 No .006 P18 

only 25 percent of all whites, were placed in the 12th District; while 

24 percent of all blacks, but 75 percent of all whites, were placed in the 

6th District. In Forsyth County, 65 percent of all blacks, but only 8 percent 

of all whites, were placed in the 12th District; while 35 percent of all blacks, 

but 92 percent of all whites, were placed in the Sth District. 

Table 1—12th District Voters Assigned by Race 
  

    

  

  
  

    

  

    
  

County Race 12th District | Other District 

Mecklenburg 

(12th & 9th) White 27% 73% 

Guilford ; 
(12th & 6th) White 25% 75% 

Forsyth 

(12th & 5th) White 8% 92% 

Davidson 

(12th & 6th) White 49.6% 50.4% 

Rowan 

(12th & 6th) White 23% 77% 

Iredell 
(12th & 10th) White 37% 63%     

Source: 1997 Redistricting Plan 

The three urban cores drew a combined population of 413,794 (75 percent 

of the district total), leaving 138,249 (25 percent of the total) to be drawn 

from the three corridor counties. In Davidson County, 80 percent of blacks 

and 49.6 percent of whites were placed in the 12th District, while 20 percent 

of blacks and 50.4 percent of whites were placed in the 6th District. In 

Rowan County, 66 percent of blacks and 23 percent of the whites were placed 

in the 12th District, while 34 percent of blacks and 77 percent of whites 

5 

 



   
EVERETT GASKINS/DURHAM TEL :919-682-5469 Feb 05’ 98 15:17 No.006 P19 

were placed in the 6th District. In Iredell County, 63 percent of blacks and 

37 percent of the whites were placed in the 12th District: while 37 percent 

of blacks and 63 percent of whites were placed in the 10th District. 

Table 2—Intact vs. Divided Counties 
  

  

  

  

  

  

  

  

  

  

  

      
       

  

District | Counties | #Intact | % Intact |% Divided 
First 20 10 50% 50% 

Second 9 5 55% 45% 
Third 18 11 61% 39% 

Fourth 5 2 40% 60% 

Fifth 9 7 78% 22% 

Sixth 7 2 29% 71% 

Seventh 9 6 67% 33% 

Eighth 10 8 80% 20% 

Ninth 3 2 67% 33% 

Tenth 11 10 91% 9% 

Eleventh 15 15 100% 0 

11 dists. — oe 65% 35% 

12 dists. on pe 60% 40%               

Source: 1997 Redistricting Plan 

» No intact counties—According to news media reports and legislative 

statements, the General Assembly had as one major redistricting objective 

to keep counties and municipalities together. Though totally disregarded 

in the 12th District, that objective was substantially followed in the other 

11 districts (see Table 2). Nine districts keep half or more of their 

counties intact. Two districts (4th and 6th) have some counties that are 

intact. Only the 12th District has no county, and none of its eight principal 

municipalities, which is not divided. 

 



  

EVERETT GASKINS/DURHAM TEL :919-682-5469 Feb 05°98 15:17 No.006 P.20 

In my opinion, the only explanation why the state selectively disregarded 
its objective of maintaining intact counties and municipalities in the 
12th District is that that objective undermined and conflicted with the 

predominate objective of maximizing the district's black population. The 
new 12th District follows and carries over the same methodology of the 
former 12th District—that is dividing all counties and municipalities in 

order to maximize its black population. 

The 11 districts that include some undivided counties average 

65 percent intact counties. The average for all 12 districts is 60 percent 
intact counties. Of North Carolina's 100 counties, 22 of them are divided. 
Sixteen of the 22 divided counties border either the 12th District or the 

Ist District. This reveals to me, again, that dividing counties is both a 
characteristic and a tool of race-based redistricting in North Carolina. 
In my opinion, the inclusion of some minimum number of intact counties 
in a district is an important test of whether that district is race-based. 

It appears to me that the reason the 12th District has no intact counties 
was because race was the predominant consideration. 

» Lacks common characteristics—The "common characteristics" test 
Is'a common-sense criteria, that I believe has been applied in redistricting 
cases, to determine whether race predominated in drawing a district. For 
example, if a district has a bizarre shape and contains no intact counties, it 

might allay suspicion if some other districts in the jurisdiction were also 
bizarrely shaped, or also lacked intact counties, or were both bizarre and 
lacked intact counties. The 12th District's bizarreness and lack of intact 

counties are shared by no other Congressional districts in North Carolina. 

 



Ill. "Metropolitan district" 3 subterfuge for race concentration 

Defenders of the 12th District have described it as a "metropolitan 

  

district" that "gathers like...metropolitan areas of Charlotte and the Triad." 
No geographic, economic, historic or demographic data exists to support 
the notion that Charlotte-Mecklenburg and the Triad counties of Forsyth 
and Guilford are one metropolitan area, Mecklenburg and Guilford 
counties have not shared the same Congressional district since 1792. Then, 
all of western North Carolina was in one district. Mecklenburg and the 
Triad counties are also defined by their separate newspaper circulation and 
broadcast service areas. 

If the state had wanted to develop a bonafide "metropolitan district," two 
logical groupings would have been Forsyth and Guilford counties as one 
metropolitan district and Mecklenburg County as another. With 511,433 
residents, Mecklenburg County has 93 percent of the population required 
for a Congressional district. [t could have been supplemented with another 
41,000 residents from suburban areas in any of five adjoining counties. 

Guilford and Forsyth, the state's third and fifth most populous counties, 
have a combined population of 613,298 residents. The surplus 61,000 
residents could have been logically transferred from outlying, semi-rural 
portions of either county and placed in the predominately rural and semj- 
rural 5th District that encompasses the state's northwestern region. 

It is clear to me that the reason these options were not considered was 
because neither option would have produced a district that had more 
than about 29 percent minority population. However, by connecting two 
predominately African-American urban cores in separate metropolitan 

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1€:.d 900° ON 87:61 86.50 Q84 

 



areas—and linking them through a predominately rural corridor—the 
resulting district was able to over-concentrate its minority population to 
48 percent. In my opinion, the new 12th District is evidently a direct 
derivative of the old 12th District, in which racially drawn urban cores in 
different metropolitan areas were linked together through rural corridors. 

IV. 1st Distri jorit 

Northeastern North Carolina has historically been home to the state's 
largest concentration of African-American residents. About a quarter 
million African-Americans live in the rural counties clustered near the state's 
northeastern border with Virginia. This is more blacks than live in any single 
metropolitan area of the state, including the Triad, T riangle, and Metrolina., 

History and demographics make northeastern North Carolina a logical 
location for a "minority-opportunity"” district, where blacks make up a 
substantial portion of the district population. When the state passed its 
original post-census redistricting plan in early 1991, a minority-majority 
district was proposed for the northeastern region. Unlike the 12th District, 
a minority-opportunity Congressional district in the state's northeastern 
region does have historical and demographic legitimacy, 

However, the new 1st District Over-concentrates a legitimate community 
of African-Americans into an artificial majority by excessively dividing 
counties. Half of the district's 20 counties were divided, generally on a 
racial basis, in order to give the 1st District a contrived black majority. 
The final Senate-House “compromise” plan had the most divided counties. 
Earlier versions divided fewer counties. In the initial House plan, five of 
22 counties (23 percent) were divided. 

Cl'd 900° 0N 81:61 86.50 084 63VS-289-616:131 WHHANA/SNINSHY 113¥3n3  



The former 1st District covered 28 counties, and divided 19 of 
them. The new Ist District covers 20 counties, and divides 10 of them. 
Formerly 57 percent black and 58 percent minority, the 1st District 
is now 50.27 percent black and 51.38 percent minority. The divided 
counties generally follow the same pattern as the 12th District, with the 
maximum number of blacks and the minimum number of whites being 
assigned to the race-based district. Thus, the districts are not narrowly 
tailored to meet a legitimate state objective. 

V. t ton’ 

Rep. Eva Clayton was elected to Congress from the 1st District with 
68 percent of the vote in 1992: 61 percent in 1994; and 67 percent in 1996 
an average of 66 percent over three general elections. This high re-election 
margin can be attributed to Clayton's receiving 90 percent or more of the 
district's black vote and a substantial share of the white vote. A recent News 
and Observer report estimated Clayton's white support during those three 
general elections to be about 25 percent.4 Analysis of Clayton's 66-percent 
margins indicates her white support could be higher (see calculation below). 

  

52% (black voters) x 1 00% (voted for Clayton) = 52% 
48% (white voters) x RAEN, (voted for Clayton) = 14% 

52% + 14% = 66 % (Clayton re-election average) 
  

    
If black participation in her 57-percent district were 52 percent (reflecting 
a lower black voting-age population), and if Clayton received 100 percent 
of that vote, she would have received 29 percent of the white vote. If 
Clayton's black support were less than 100 percent, or if black participation 
were lower than 52 percent, her white support could have been higher. 

10 

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When minority-majority districts were instituted, it was assumed that a 

  

55-65 percent black population was needed to overcome white bloc voting 
and consequent defeat of the minority-preferred candidate. Since some 
white voters do, in fact, vote for the minority candidate, the Ist District's 
57 percent black population—supplemented by white votes—has translated 
to an assured and overwhelming victory for the minority Congressional 
candidate. 

Even in the reduced, 50.3-percent-black 1st District, the minority 
candidate has an excessive advantage. In the 20 counties of the new 
Ist District, the 1996 results for President, U.S. House, and U.S. Senate 
confirm a continuing, overwhelming advantage for the minority candidate: 
Bill Clinton received 61 percent of the two-party vote: Democratic 
House candidates (Clayton, Neil Cashion, Bob Etheridge, George Parrott) 
received 61 percent; and Harvey Gantt received 56 percent. 

While Rep. Clayton, as the incumbent, could expect a higher level 
of support, I believe Harvey Gantt's 56-percent vote in his 1996 race 
against Sen. Jesse Helms represents the core-level support available to a 
non-incumbent black challenger facing a white incumbent. Rep. Clayton 
confirmed the importance of the Gantt vote in redrawing her district 
during a talk to a UNC audience two days before the redistricting plan 
was finalized. 

According to a newspaper account, Clayton cited "inside information" 
based on "voting patterns in Gantt's U.S. Senate race” that showed the 
new lst District would ‘enjoy a 56-percent majority of sympathetic . . 
former Gantt supporters” (see Exhibit B). 

1] 

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Clayton warns 
redistricting may 
s®ip black gains 
By DUNCAN MURRELL 
Trve Herald-Sun 
CHAPEL HILL — North Carolina's. congressional redis- tricting May strip black vocees of the power and repre sentation they've fought for since 

the end of Reconstruction, Rep. 
Eva Clayton, DNC. ald a UNC 
audieace Tuesday night. 

“Redistricting — this issue — ej 
ther puts us on the cutting edge 
of history, ar puts us in a position 
to repeat hustary,” Clayton said. 
She was referring to the period 
immediately following Recon 
struction when Southern states 
began to strip blacks of the nght 
to vote, a right they'd had since 
the end of the Civil War. 

+ Property requirements and scare tactics 

please see CLAYTONC 10 

  

Exhibit B 

PAGE C10 
              

  
  THE HERALD-SUN, DURHAM, N C. 
  

    

CLAYTON oc: 
        
  

  

  ‘ceived the same purpose as redistricting could. po- 
lentially.” Clayton sad. “It serves to reverse the gains that blacks have made in politics.” 

Clayton took the opportunity of the third annual 
Sonja Haynes Stone Memorial Lecture to defend 
Nocth Carolina's black-majority congressional dis- 
toes, one of which was struck down last year by 
the US. Suprerae Court. 

Her speech was timely. This week. members of 
the NC. General Assembly have been scurrying to 
redraw the entire congressional map to comply 
with the Supreme Court decision before a Tuesday 
deadline. 

With luck. the new congressional district map — 
which wiil probably be unveiled in the General As- 
sembly this week — wont tum back the hands of 
time, Clayton said 

ln Qc inside information she's seen recently 
leads her to believe that aot only will she be in a 
strong position to be reelected after redistricting, but Rep. Mel Watt, D-N.C.. will be ia a good position to be returned to affice. she said 

Watt represents the 12th District. an urban dis- 
trict that winds its way along Interstate 3S from 

The 1st District. which Clayton serves, was nok 
struck down by the Supreme Court, but will be re 
drawn along with most districts as a result of the 
General Assembly tinkering with the 12xh 
Althoagh both districts probably 

jority black anymore, they both will emjoy a sub 

And even though Watt's district 
attention. he will probably enjoy a 
jority of sympathetic, former 

petting afi the 

said. 

“The struggle continues. she said. “The most im- portant tight to exercise is the right to vote. AJ] | 
rights derive fom that. Due process. for instance. 
are just mere words if we don't elect people to up Liokd the principle.” : 

Before being elected to Congress in 1992, Gayton ; 
ran once before tn 1968, before redistricting formed ; 
her majocity-black 1st District. And even though the 
district she ran in the first time had ore black vot. 
ers than any other. she still didn't have 2 chance. 
she said 

She then cattled off the names of other biack can: 
didates who ran for Congress in the 1970s and early 
1960s and lost. such a3 state Sen. Howard Lee and : 
Rep. Mickey Michaux. : 

“These were all highly qualified people, but it , 
was before redistricting.” Qayton saad. “Is there 
any wonder why ( lost in 19687" ; 

And there is still reason enough to stay wary 
when the plaintiff in the rediscricting case has said 
be will sue again if the 12th District is not changed 
to bis liking, Clayton said. : 

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VIL Winners and losers decided on the basis of race 

The Voting Rights Act (VRA) requires that elections be "equally open" 

  

to racial minorities—and that minorities not have "less Opportunity than 
other members of the electorate to participate in the political process and 
clect representatives of their choice." 

However, by creating an artificially contrived black majority, the state has 
gone well beyond what the VRA authorizes in assuring "equal opportunity." 
The result is assured victory for minority voters and the minority-preferred 
candidate and assured defeat for other voters and candidates. 

Facing a built-in 12-point minimum deficit, Rep. Clayton's general 
election opponents have no more opportunity of being elected than they did 
in the previous 1st District. Thus, the state, using divided counties as a too] 
of race-based redistricting, has given minority voters in the 1st District— 
not just an "equal opportunity” to win—but a virtual certainty of winning. 

When the state intervenes to grant one group of voters more than a 
50-percent probability of electing its candidate of choice, that denies 
to all other voters and candidates an equal opportunity to participate. 
A state-imposed 56-percent core-leve] advantage for the minority- 
preferred candidate cannot be considered "equal opportunity participation," 

In my opinion, redistricting intended to assure victory to some and 
consequent defeat to others—on the basis of race—exceeds the Voting 
Rights Act mandate and is a denial of equal protection of the laws under the 
14th Amendment to the U.S. Constitution. 

12 

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VIL... ity"' 

  

If "equal electoral opportunity” can be accepted as being somewhere 
close to a 50-percent probability of winning, the level of black voting-age 
population (BVAP) needed to achieve ‘equal electoral opportunity" for 
minority Congressional candidates has been quantified in recent research 
by Columbia University political scientists Charles Cameron, David 
Epstein, and Sharyn O'Halloran. Their research appeared in an article 
entitled "Do Majority-Minority Districts Maximize Black Representation in 
Congress?" American Political Science Review (December 1996). 

The researchers used a "multinomial logit" statistical methodology 
to estimate the level of BVAP in Southern states needed "to achieve a 
50 percent probability that the elected representative is a black Democrat, 
that is, the point of equal opportunity for minority voters to elect their 
candidate of choice.” The researchers conclude: "In the South, the 
required level of BVAP (for equal opportunity) is 40.3 percent...given 
present turnout” (see Exhibit C) . 

To determine how the Cameron research might apply to North Carolina, 
I identified a group of 17 intact counties in northeastern North Carolina = 
whose combined population equals a congressional district. The subject 
area is nearly identical to one in a redistricting proposal published by the 
Charlotte Observer that reporter Jim Morrill and legislative staff member 
Dan Frey worked together to compile (see Exhibit D). 

This 17-county area has a population of 553,068: a black population of 
44 percent; and an overall minority population of 45 percent. The area's 
BVAP is 40.6 percents almost identical to the 40.3 percent of BVAP 

13 

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listed in the research. Results of the 1996 elections in the subject area were: 

Clinton, 57 percent (two-party vote); U.S. House candidates (Clayton, 

Cashion, Etheridge, Parrott), 59 percent; and Harvey Gantt, 50.9 percent. 

VIII. 1st District six percentage points 'over-concentrated" 

If Gantt's 51-percent vote represents the core-level support available 

to a non-incumbent black candidate facing a white opponent, there would 

be a strong correlation between the Cameron research and voting patterns 

in northeastern North Carolina. In other words, Cameron's 40 3 percent 

BVAP closely approximates the appropriate level of BVAP for providing 

minority voters in northeastern North Carolina a 50-percent probability— 

thus an "equal opportunity" —to elect their Congressional candidate of choice. 

As the incumbent, and based on her past performance in the 17-county 

area where she was on a large percentage of the ballots, Rep. Clayton, in 

my opinion, would likely exceed 51 percent of the vote. However, in a 

scenario where a "generic" black candidate has the same core-level support 

as Gantt, but may have less white (and black) support than Clayton, 
I believe 40-percent BVAP would position that candidate to be fully 

competitive with a white opponent: (Scenario assumes participation to be 

40 percent black and 60 percent white) 

  

40% (black voters) X 90 % (support for black candidate) = 36% 

60% (white voters) X 25% (support for black candidate) = 15% 

36% + 15% = 51 %o (minority electoral opportunity)       

Thus, with 50 percent black population and 46.5 percent BVAP, the redrawn 

Ist District is approximately six percentage points "over-concentrated” 

beyond the point of "equal electoral opportunity” for all voters and candidates. 

14 

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American Political Science Review 
Vol. yu. No. 4 

  
  

Exhibit C 

Electoral Equations 

The preceding analysis suggests that LCCR scores are relatively constant within the six subgroups but differ widely across them. The percentage of BVAP may thus have its largest effect by influencing the distribution from which a representative is drawn: that is, in determining whether the elected representative is a Republican, a nonblack Democrat, or a black Democrat. In this section we estimate equations relating the size of the black voting-age population to the type of representative elected (9): 

P(81BVAP). (2) 
The small number of biack representatives and their geographic concentration make it impossible to estimate the electoral equations using a trinomial logit model disaggregated by region (estimation routines in standard computer programs fail to converge). Therefore, we conducted sequential logit analysis to determine the model specification that best fits our data while retaining regional and partisan characteristics. The results from this portion of the analysis can be summarized fairly succinctly. Both portions of the sequential logit models were estimated using smoothing splines. Neither the 

logit for black Democrats, estimated at the national level, nor the three separate logits for nonblack repre- sentatives displayed important nonlinearities, using the nonparametric Chi-squared test 20 Accordingly, all mod- 
els were fit using a general linear model that includes a 
  

2 Sce Chambers and Hastie (1993, 262, 306). 

803 

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  02'd 900ON "22:61 

December 1996   
  

Do Majority-Minority Distric fffaximize Black Reptesentation? £9 og Po 1bit C 
        

      
  

  
      

  
        

  
              
    
  

  
  

  

    
                

  

                                                      

TABLE 5. Fimal Electoral Equation, 
Multinomial Logit 

Category 
Nonblack 

Variables Demacrats Republicans 
Constant 12.15 12.44 

(4.17) (4.18) 
BVAP -43.43 -54.01 

(14.97) (15.17) 
BVAP East 17.38 21.98 

(7.31) (7.93) 
South 5.21 5.86 

(2.91) (2.92) 
Log-likelinood ~268.34 

x? (6 262.85 
Percentage 

correctly 
predicted 61% 

Percentage 
Improvement 20% 

Predicted 

Black Nonblack Repub- Actual Democrats Democrats licans Total 
Black Democrats 35 2 0 37 Nonblack 
Democrats 2 147 3 222 Republicans 0 92 84 178 

Total 3? 241 157 435 
[| Standard errors are given in parentheses. 
      

dummy variable intercept term for the South and an interactive slope term Easr*BVAPL. 
The resulting multinomial logit model, with vanous summary statistics, is shown in Table S. Like all multi- nomial logit models, it is appropnate only if the data display the independence of irrelevant alternatives (IIA) property (Greene 1993, 670-2). A procedure devised by Hausman and McFadden (1984) is commonly employed to test for the validity of the [IA assumption; application of this test to the mode! in Table 5 fails to reject the null hypothesis that the property holds. 
Figure 4 displays the results of the electoral in an easily interpretable fashion. Each pane! shows the estimated probabilities that a representative is a Repub- lican, nonblack Democrat, or black Democrat for all possible levels of BVAP in a given region. At any level of BVAP, the three probabilities sum to one; the most likely representative at any level of BVAP is given by the uppermost of the three lines. The figures show the dramatic effect of black voting-age population on the partisan and racial identity of representatives. If a district has low levels of BVAP (0-10% in the South, 0-5% outside the South), the most likely partisan iden- tity of the representative from that district 1s Republi- can, and it is exceedingly unlikely the representative is a black Democrat. At somewhat higher levels of BVAP (10-30% in the South, 5-30% in the Northwest, 

analysis 

804 

86.50 Q84 

  

53-20% in the Northeast), the most likely partisan iden- tity of a representative is Democrat, though it remains possible the representative is Republican; in this range it remains quite unlikely the representative is black. At a sufficient concentration of minority voters (starting at 30% in the South and Northwest, at 20% in the North- east), the probability that the representative is a black Democrat increases very rapidly. soon becoming a vir- tual certainty. : 
There are important differences across regions, per- haps best summarized by the concentration level. of BVAP required to achieve a 50% probability that. the elected representative is a black Democrat, that is, the point of equal opportunity for minority voters to elect their candidate of choice. As shown in Figure 4, in the South the required level of BVAP js 40.3%: in the Northwest, 47.3%: in the Northeast, only 28.3%. These figures carry a number of important implications. It js rarely necessary for minority voters to be a clear majority within a district to have a good chance of electing a Minority representative, and the 65% rule enforced by the courts certainly seems excessive, By the same token, black candidates seem to have a fair chance of winning election, even in districts with a white majority (so-called minority-minority districts). Thus, Swain’s emphasis on the electoral possibilities in these districts is consistent with our findings. 

Figure 4 suggests that the probability of electing a Republican in the South is fairly high at low levels of black participation. The likelihood is far less in the Northwest, while the Northeast presents a middle case. Furthermore, nonblack Democrats retain a fairly high chance of winning in the Northeast, even with significant portions of black voters in the district. This may be due to the fact that liberal northeastern Democrats do a good job of representing their black constituents’ con- cerns. It also may reflect the presence of liberal Demo- Cratic machines in many large northeastern cities. Finally, we point out the fact that the electoral equations estimate the probability of different types of representatives being elected, given present rumour. If minority turnout were to increase so that minority candidates would stand a greater chance of winning in any given region, for example, then this would be reflected in Figure 4 by raising the estimated black Democrat probability line. Thus, although turnout ef- fects are not explicitly built into our estimation proce- dure, they do influence our final results, 

OPTIMAL DISTRICTING FOR SUBSTANTIVE MINORITY REPRESENTATION 
The previous section estimated representation effects, the influence of minority constituents on their legisla- 
tor's voting behavior, and electoral effects, the relation berween the composition of the electorate and the type 
of representative elected. Our analysis showed that the representation effect was small or negligible: Within any given subgroup of representatives, an increase in the 
percentage of black voters in a district had little influ- 
ence on voting patterns. Taken alone, this information 
might seem to lend support for majority-minority dis- 

6:1731 WHHANA/SNIMNSHY 

  

1134303



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FIGURE 4. Probability of Election of Three Types of Representatives by Percentage Black in District, by Region 

go Probability 

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1 Nonbleak Democrat Black Oermocrm 

i. 0.8 

0.8 

South 40.29% 
0.4} 

b 

02 Republican 

6F iL 04 0D ToT — % BVAP 
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Nonbiack Democrat Black Democrat 

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0.4 

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Republica 

pP 0.2 0.4 0.6 08 n % BVA 
ey.     
  

  
      

     

    

    

cts, as black representatives do, indeed, consistently electing a bluck Democrat from a majority-minority the highest level of support for minority issues. district is sufficient to offset the marginal loss of influ- Ct, the electoral effect of minority voters proved to ence in other districts. Much more significant, as the BVAP in a district has ! substantial influence on the partisan and racial char- teristics of the representative. And while it is certainly 
that majority-minority districts are quite likely to 

elect a minority representative, Figure 4 indicates that ne . Concentrations may be unnecessary to secure mi- Exhibit Cc 2ority electoral opportunities. The basic question, then, Whether the marginal gain in the probability of 

805 

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IX. Voting rights not a mandate for "safe seats" 

As I understand the Voting Rights Act, its purpose is not to provide 

  

"safe minority seats"—but to assure that minority voters have the same 
opportunity as other voters to participate in the election process. As 
presently constituted, North Carolina's race-based 1st District fails to 
provide the same opportunity for all voters to elect their representatives 
of choice. For those reasons, I am convinced the Ist Congressional 
District is a misinterpretation and abuse of the Voting Rights Act and that 
it violates the 14th Amendment to the U.S. Constitution. 

"Over-concentration" and "assured victory" are even more pronounced 
problems in the 12th District. By the state's estimate in the redistricting 
plan, the new 12th District is composed of 66 percent former Harvey Gantt 
supporters. In my opinion, this rules out any opportunity for meaningful 
participation by other voters and candidates. Though these violations certainly 
apply, they are, in my opinion, overshadowed by the 12th District's racial 
classifications, racial assignments, and overall non-legitimacy as a district. 

In vivid contrast to the race-based 1st and 12th districts, a legitimate 

"minority-opportunity” district has existed in both the 1992 and the 1997 
redistricting plans. That district is the 4th District in the Triangle area. 
In both the 1992 and 1997 plans, the 4th District did not resort to bizarre 
shapes and showed no indication that race was the predominant factor. Yet 
in both plans, Harvey Gantt won a convincing 59 percent of the district's 
vote. While it is impossible to draw two non-race-based black-majority 
districts, the evidence shows it is possible to have at least two ‘minority- 

opportunity” districts—one in the northeast and one in the Triangle. 

15 

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X. ross- oti n in 

If Gantt's 1996 vote is the measure, black candidates, helped by white 
cross-over voting, have electoral opportunities in additional areas of the 
state (see Exhibit E). The following examples show the possibility for 
drawing non-race-based minority-opportunity Congressional districts that 
are geographically compact and maximize intact counties. 

» Metrolina area—Gantt won 55 percent of the vote against 
Helms in Mecklenburg County, which has 93 percent of the population 
for a Congressional district. With a respectable showing in the remaining 
7-percent population area outside of Mecklenburg County, Gantt would 
have been solidly positioned in a "Metrolina district." 

» Triad area~—The combined Guilford-Forsyth County vote 
was 51-49 percent for Helms. In a Guilford-Forsyth "Triad District," 
61,000 people would be removed to achieve population equivalence. 
In either county, the outlying areas most likely to be removed are 
predominately rural and semi-rural Since those type areas are more 
heavily populated with conservative voters, their removal would likely have 
pulled Gantt even with, or slightly ahead of, Helms in a "Triad District." 

» Southeastern area—The state's other high concentration of racial 
minorities is found in the southeastern region. A Congressional district 
anchored by Cumberland and Robeson counties and extending along the 
South Carolina border would be 44 percent minority. Such a grouping 
would provide a second predominately rural district and a strong electoral 
opportunity for a minority candidate. For example, in seven southeastern 
counties—Bladen, Brunswick, Columbus, Cumberland, Hoke, Robeson, and 
Scotland—Gantt was favored by 53.7 percent of voters over Helms. 

16 

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Exhibit E 
Minority Electoral-Opportunity Areas 

  
  

  

  

Northeast—Harvey Gantt vote: 51% (1996) 

Triangle (redrawn 4th District)—Harvey Gantt vote: 59% (1990) 
Metrolina—Harvey Gantt vote: 54% (1996) 

T riad—Harvey Gantt vote: 30% (1996) 

Southeast—Harvey Gantt vote: 53.7% (1996) 

  

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The Gantt results in the state's major metropolitan areas—Metrolina, 

  

the Triad, and the Triangle—confirm the significant level of white ¢cross- 
over voting that occurs in urban areas, The BVAP in these urban counties 
is generally under 25 percent, which means whites were crossing over at 
rates of 40-50 percent to vote for Gantt, 

The relatively high levels of white cross-over voting in the urban counties 
refute the state's claim that electoral opportunities for black candidates can 
only be provided by Over-concentrating minorities into an artificial district 
extending across separate metropolitan areas. The level of cross-over 
voting also suggests that in urban areas of the South, the “point of equal 
opportunity for minority voters to elect their candidate of choice" is 
considerably lower than the 40.3-percent BVAP in the Cameron research. 

The southeastern border area contains perhaps the most diverse group 
of voters in North Carolina. Non-blacks—including Native Americans, 
Hispanics, and Asians—account for about one-quarter of the area's 
44-percent minority population. Despite claims that black and Native 
American voters are not politically cohesive, Gantt's 54-percent vote 
in this 7-county area shows that a diverse coalition of minority voters, 
plus white cross-over voters, can be sustained to provide strong electoral 
opportunities for a minority candidate in a rural area of North Carolina. 

XI. Conclusion 

Three Congressional elections have now been held under an 
unconstitutional redistricting plan. In drawing a remedial plan, the 
General Assembly looked only to a previously invalidated plan as a starting 
point and ignored other possible plans. In my opinion, this shows the state 
is intending to perpetuate a racially gerrymandered redistricting plan. 

17 

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Elected officials face an inherent conflict of interest any time they draw 

  

districts—for themselves or for other elected officials. This has never been 

more evident than in the General Assembly's repeated drawing of districts 

that classify and separate voters by race. Fortunately, other alternatives exist. 

For example, some states have minimized the partisan effects of 

redistricting by turning over the task to non-partisan, independent 

redistricting commissions. The courts themselves have resolved disputes 

over redistricting by drawing the districts or by appointing "special 

masters” to do the redistricting. 

Though not currently authorized by statute for Congressional elections, 

multimember districts and proportional voting methods would be another 

means of assuring fair representation for racial minorities. A proportional 

voting system would most likely put an end to all forms of gerrymandering 

by removing the incentive to manipulate district lines. 

If allowed to stand, this redistricting plan, and the 12th District in 
particular, could undermine the election process into the next decade and 

century. Gerrymandering in this redistricting plan is moving us toward 

a quasi-appointed Congress, whose members receive their "appointments" 

from legislative redistricting committees. 

The "anything goes" philosophy, in which county and municipal boundaries 

are utterly disregarded, could give rise to drawing districts that serve only 

the self-interested ends of the people who draw them. An essential step in 

restoring public confidence in the election process is to restore integrity to 

the redistricting process. 

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State of North Carolina 
County of Durham 

Sworn to and subscribed before me this e™ day of Qemuanc, , 19 
v Y Lu 
  

  

Notary 

(Official Seal) 
Notary Public 

  

My commission expires ___ [O° +§° 00S 
  

19 

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Notes 

1. "Democrats express redistricting reservations," Associated Press, 

Feb. 25, 1996. 

  

2. "Legislators loath to split counties when redistricting," Associated Press, 

Dec. 29, 1996. Cover page of initial Senate redistricting plan (February 

1997) made several references to priority for intact counties. 

3. Source: U.S. Census Bureau 

4. "Clayton to seek re-election," News and Observer, Nov. 1, 1997 

5. This analysis of Presidential, U.S. Senate, and U.S. House results is 

based on returns from the 10 intact counties of the new 1st District 

as reported on the State Board of Elections Internet site. Additionally, 

the Board of Elections provided me 1996 precinct-level results for the 

10 divided counties assigned to the new 1st District. Most precinct 

names correlated with precincts listed in the state's redistricting plan. 

The only county for which precincts were difficult to correlate was 

Beaufort, which accounts for about four percent of the district's 

population. Any discrepancy in my reading of the figures would 

change the analysis by no more than one to two percentage points. 

6. Source: U.S. Census Bureau 

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Appendix LEE MORTIMER 
4116 Livingstone Place 
Durham, NC 27707 

919-992-0048 (office) 919-489-7028 (home) 

In 1992, I helped to found the Center for Voting and Democracy 
(CV&D), a non-profit, educational organization that researches and 
promotes alternatives to "winner-take-all" elections, principally elections 
based on proportional representation. I remain an active member, having 
attended three national conferences and representing CV&D in local and 
state activities. Located in Washington, DC, the Center is headed by former 

Congressman and independent presidential candidate John Anderson. 

The Center has conducted extensive studies and comparisons of election 
systems in the U.S. and other countries. CV&D's diverse supporters 
include voting rights activists, advocates of term limits, and small parties 

such as Greens, Libertarians and the Reform Party. I would emphasize, 
however, that the Center has no role in this litigation, and that I am 

presenting my own opinions and not those of CV&D. 

In 1994, I served on the Durham Government Merger Issues Task Force, 
co-chaired by NC Central University Chancellor Dr. Julius Chambers. I 
was on subcommittees that developed proposals for the structure and election 

system of a possible merged city-county government. I was appointed to 
the task force because of my knowledge of alternative election systems. 

In 1993, I was asked to serve as a resource person to the Orange 

County Elections Task Force, along with Joseph Ferrell of the Institute 

of Government. The task force eventually recommended cumulative 

voting as an option for county elections. I had earlier participated in 

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an ad-hoc group called Orange County Citizens for Fair Representation, 
which was the impetus for establishing the task force. In 1995, I met with 
and advised members of a Johnston County elections committee studying 
school-board election changes. In April 1997, I was a panelist in a "Citizens 
Conference" sponsored by the League of Women Voters of North Carolina. 

Also in April 1997, along with CV&D's national director, I made a 
presentation to the "Better Campaigns Commission," chaired by four former 
governors. Because it was the same day the General Assembly was delivering 
its redistricting plan to the Federal District Court, I discussed the plan's 
shortcomings, which I detailed in an article "A Re-Gerrymandering Deal" 
for The Journal of Common Sense (June 1997). The publisher's foreword 
described me as "a wise and informed observer of the election process." 

Partial list of other articles: 

"Fairness would solve Democrats’ redistricting dilemma," The Journal of 
Common Sense, October 1996 

"Winner-take-all is a loser," The Journal of Common Sense, May 1995 
- "Assembly can vote for fairer vouing," News and Observer (Raleigh), May 9, 

1995 (article included in Marshall-Wythe Law School's Supreme Court 
preview conference) 

"Can the Democrats keep their seats,” News and Observer, January 21, 1997 
"Proportional representation could end racial gerrymandering in North 

Carolina," News and Record (Greensboro) January 9, 1994, also 
published in 25 other state newspapers including most of the largest- 
circulation papers and several leading African-American newspapers. 

"Guinier's views on voting are not ‘anti-democratic'," The Herald-Sun 
(Durham), June 14, 1993 

“Registration fever: Large numbers of new voters may improve North 
Carolina's poor turnout,” The Independent Weekly, October 26, 1984 

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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF NORTH CAROLINA 
RALEIGH DIVISION 

  

Civil Action No. 4.96-CV-104 

MARTIN CROMARTIE, et al., 

Plaintiffs, 

AFFIDAVIT OF R.O. EVERETT 

VS. 

JAMES B. HUNT, JR., in his official 

capacity as Governor of the State of 

North Carolina, et al. 

Defendants. 

  

R.O. Everett, being duly sworn, declares and says as follows: 

I am a citizen and resident of Salisbury, North Carolina, which is located in Rowan 

County; and I have resided here for more than three decades. For many years I was the city 

executive for Wachovia bank here in Rowan County. Over the years my wife and I have 

participated actively in politics in Rowan County. A few years ago, I ran unsuccessfully to serve 

in the North Carolina House of Representatives. I am one of the Plaintiffs in this case because I 

sieonvineed that the present redistricting plan is racially gerrymandered and that this is 

unhealthy for the electoral process in North Carolina. 

Although I have lived in other parts of the State earlier in my life, I am especially familiar 

with Rowan County and its neighboring counties. Because of that familiarity, it was easy for me 

to perceive that in the 1992 Congressional redistricting plan the Twelfth District, which cut 

through Rowan County had a shape which was predominately motivated by race. After the 

original Twelfth District had been declared unconstitutional, I had hoped that in any new plan the 

districts of the state would be drawn without regard to race. Unfortunately, this did not occur. 

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Under the present plan, the Twelfth District is still racially gerrymandered — that is, its shape is 

  

motivated predominately by race — and this has a corresponding effect on the boundaries of the 

adjacent districts. With specific reference to Rowan County, I am convinced that had race- 

neutral principles been followed, such as compactness, contiguousness, and respect for the 

boundaries of political subdivisions, the district boundaries would have been quite different. 

Indeed, Rowan County would probably not have been included at all in the Twelfth District. In 

view of the size and location of Mecklenburg County, it seems obvious to me that no part of 

Rowan would have been placed in the same district with Mecklenburg if race-neutral districts 

had been drawn by the General Assembly. 

Further declarant sayeth not. (Dr a 

NORTH CAROLINA 
A COUNTY 
abacus / ) 

Subscribed and sworn to before me this sO day o ok , 1998. 

Notary ublic 

  

  

  

My Commission expires: [ - Jo - 2002 
    

  

HNN 

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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF NORTH CAROLINA 

Eastern Division 

Civil Action No. 040-CV-104-H2 

MARTIN CROMARTIE, et al. 

JAMES B. HUNT, JR,, in his 

) 
) 

Vv. ) AFFIDAVIT OF NEIL C. WILLIAMS 

) 
) 

capacity as governor, et al. ) 
  

Neil C. Williams, being duly sworn, declares and says as follows: 

[ am a citizen and resident of Charlotte, North Carolina, where [ have resided most 

of my life. After graduating from Duke University in 1963, and Duke University Law 

School in 1966, I served on active duty as . judge advocate in the Navy and subsequently 

entered law practice in Charlotte. From 1971-1972, T was an assistant district attorney in 

Mecklenburg County and currently I am a partner in the law firm of Horack, Talley, Pharr 

& Lowndes, PA. in Charlotte. I served two terms as an at large member of the Charlotte 

City Council (1973-77) and have been active in Republican politics in Mecklenburg County. 

I was a candidate for Congress from the Ninth District of North Carolina in 1994, but was 

defeated in the Republican primary. Over the years, I have participated in a number of civic 

and political activities in the Charlotte area. In connection with my candidacy for Congress 

in 1994, I became well aware of the racial gerrymandering that had taken place in creating 

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congressional districts. I was especially aware of the racial gerrymandering in connection 

with the creation of the Twelfth District, which divided Mecklenburg County on a racial 

basis and also divided adjacent counties in the same manner. The Ninth District, in which 

I was a candidate, was itself gerrymandered because of the manner in which its boundaries 

adjoined the Twelfth District. The existence of the racial gerrymander affected my 1994 

candidacy adversely; I led in the primary in Mecklenburg County, where I was well known, 

but fared poorly in some of the other counties that had been unnaturally linked with portions 

of Mecklenburg County in forming the Ninth District. 

I am familiar with the 1997 congressional redistricting plan as it relates to the Twelfth 

and Ninth Districts. From my knowledge of the areas of Mecklenburg County where there 

are substantial concentrations of African-Americans, it is apparent to me that racial motives 

predominated in creating the Twelfth District. Indeed, apart from the motive of creating a 

district that would assure the election of an African-American to Congress, there would be 

no occasion to link Mecklenburg County with Guilford and Forsyth Counties in the same 

district. As a result of the racial gerrymandering of the Twelfth District, the Ninth District 

is also inversely racially gerrymandered in a manner that concentrates whites and excludes 

blacks. If a district were drawn according to the traditional redistricting principles of 

compactness, contiguousness, and respect for political subdivisions and actual communities 

of interest, Mecklenburg County would be entirely included in a single congressional district 

instead of being divided between districts on the basis of race. In that event, I would 

consider another candidacy for Congress. 

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As an attorney, I am familiar with the concept of “fruit of the poisonous tree;” and at 

least in connection with the Twelfth District, I am convinced from my knowledge of the 

relevant facts that the present Twelfth District is, in almost every respect, the “fruit” of the 

unconstitutionally racially gerrymandered Twelfth District that was created in the 1992 plan. 

Further, declarant sayeth not. 

  

Subscribed and sworn to before me this 

=F day of January, 1998. 

My Commission Expires: _Z-/9- 275 
  

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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF NORTH CAROLINA 

Eastern Division 

Civil Action No. 040-CV-104-H2 

MARTIN CROMARTIE, et al. 

V. AFFIDAVIT OF JOHN WEATHERLY 

JAMES B. HUNT, JR,, in his 
capacity as governor, et al. 

  

John Weatherly, being duly sworn, declares and says as follows: 

I am a citizen and resident of Cleveland County, North Carolina, and | am now serving in 

the North Carolina House of Representatives as the representative from the 48" House District 

which includes Cleveland County. Previously I served as a Representative in the 1989, 1993 and 

1995 sessions Currently I am Chair of the House State Government and Properties Committee 

and am a member of the Environmental Committee, the Agricultural Committee, and the House 

Appropriations Committee. During my service in the House of Representatives, I have become 

increasingly concerned about the need for reform in the electoral process and, because of my 

interest in this issue, I served in the fall of 1996 as one of the fifteen members of the General 

Assembly’s Election Law Reform Committee. 

During my service in the General Assembly, [ have become aware of the extensive 

gerrymandering that has taken place in the creation of districts for clecting members of Congress 

and of the General Assembly. The existence of this gerrymandering is apparent from an 

examination of the maps that show the redistricting and reapportionment plans that were enacted 

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during the 1991 Session of the General Assembly and the redistricting plan that was enacted in 

March of 1997. Because of the flagrant gerrymandering that has taken place, 1 proposed a 

constitutional amendment that would place the responsibility for congressional redistricting and 

legislative reapportionment in a non-partisan commission. This commission would draw 

electoral districts in a manner that disregarded race, political party and incumbency, and relied 

instead on traditional redistricting principles, such as geographical compactness, contiguousness, 

political subdivisions, and real communities of interest. 

Early in its 1997 session, the General Assembly was considering the preparation of a 

redistricting plan to replace the plan enacted in 1992, which the Supreme Court had declared 

unconstitutional in June 1996. As a means of preparing a constitutional plan, I suggested that the 

General Assembly create a redistricting commission along the lines of my proposed 

constitutional amendment. In this connection, I introduced a hill that would have directed the 

creation of a redistricting commission to prepare a congressional redistricting plan for use in the 

1998 elections. This bill, if enacted, would have previded a means for drawing a race-neutral 

and party-neutral redistricting plan that would replace the plan which the Supreme Court had 

declared unconstitutional in Shaw v. Hunt. This new plan would have been submitted for a vote, 

up or down, in the General Assembly. By use of the redistricting commission, the General 

Assembly would have eliminated any taint or carry-over from the redistricting plan that was ruled 

unconstitutional by the Supreme Court. 

Although I was not serving in the General Assembly in 1991-92 when the congressional 

redistricting plan was prepared for use in the 1992 and subsequent elections, I readily concluded 

that race had predominated in the drafting of that plan - especially with respect to the First and 

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Twelfth Districts. Indeed, this was apparent even from the shape of the districts, when 

considered in relation to concentrations of African-American population in North Carolina. Iam 

especially aware of the racial gerrymandering of the Twelfth District in the 1992 plan because I 

reside in the adjacent Ninth congressional district, whose shape was significantly affected by the 

racial gerrymandering of the Twelfth District. 

The appearance of the First and Twelfth Districts in the current plan, which was enacted 

by the General Assembly in March of 1997, does not reveal the racial motive as readily as did the 

appearance of the corresponding districts in the 1992 plan. In other words, the new districts are 

somewhat less “bizarre.” However, as I confirmed by examining recently a map of the current 

districts, race was still a predominant motive in their creation. This is especially obvious to me 

with respect to the current Twelfth District: a comparison of the boundaries of the Twelfth 

District with the concentrations of the African-American population in the six counties of which 

portions are included in the Twelfth District makes evident to me that race predominated in the 

drawing of that district. Not only the redistricting plan itself, but the events that occurred during 

the 1997 session of the General Assembly lead me to conclude that race predominated in 

determining the boundaries of the First and Twelfth Districts. Basically, the premise for the 

current plan was that two congressional districts should be created in each of which an African- 

American would be elected to Congress. Indeed, the premise was even more specific — namely, 

that the election of the two current African-American incumbents would be assured. Subordinate 

to this objective was the re-election of other incumbents along party lines to maintain the 6-6 

party balance in the congressional delegation; but it is clear to me that the indispensable part of 

the plan was to assure the creation of two districts that would re-elect the black incumbents. 

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From my knowledge of North Carolina and its politics, including the politics of the 

General Assembly, I am convinced that the predominate motive — indeed, almost the only 

conceivable motive — for linking together Mecklenburg County with Guilford and Forsyth 

Counties in a single congressional district was the racial motive of guaranteeing the election of 

an African-American. Although I am not as familiar with the area encompassed in the current 

First District, I believe the same conclusion applies to it. In each instance my conclusions are 

based on statements made on or off the floor of the General Assembly or in Committee, on the 

final results of the redistricting process, and on my experience as a legislator. 

Further declarant sayeth not. 

Subscribed and sworn to before me this 23" day of January, 1998. 

laf] Claynn 
Notary Public 

My commission expires __/ oy 20905 

  

  

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81/30/1998 10:47 7847882215 WBGD&T ~CONCORD PAGE 82 

  

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF NORTH CAROLINA 

RALEIGH DIVISION 

Civil Action No. 4.96-CV-104 

MARTIN CROMARTIE, et al., 

Plaintiffs, 

AFFIDAVIT OF J.11. FROELICH. IR. 

VS. 

JAMES B. HUNT. JR., in his official 

capacity as Governor of the Stage of 
North Carolina, ¢f gl. 

Defendants. 

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J.H. Froelich, Jr, being duly sworn, declares and says: 

[ am a citizen and resident of High Point, North Carolina which is in Guilford County. 1 

have lived here ull iny life; and I am currently in my sixties. I have been involved in the impost 

and export of furniture und materials intended for use in making furniture, and [ have also 

participated in u variety of other business activities. In addition, I have been active in politics a 

(he local and state level, and in 1972 managed the statewide gubernatorial campaign of the 

Democratic nominee, “Skipper” Bowles. Iam a plaintiff in this action: und | provided an 

ulfiduvit as a witness for the plaintiffs in the trial of Shaw v. Hunt. 

| When the Congressional redistricting plan was enacted in 1992, I believed thal the plan 

was uncoastitutional because of the strange way in which the districts had been drawn. There 

seemed to be no relation between the drafting of district boundaries and the application of 

iraditionul ruce-ncutral redistricting principles. Because of the bizarre way in which the 

Congressional difizicts had been dawn — sometimes with precincts being split among (wo or 

more Congressional districts — it was hard for a voter to know in what district he or she had been 

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   81/38/1998 10:47 7047882215 WBGD&T -CONCORD PAGE 03 

placed. Indeed, when I went to vote in 1992, 1 did not realize that [ was in the Twelllh District. 

Alter the 1992 plan was declared unconstitutional, the General Assembly in 1997 produced a 

new plan. However, that plan represents little improvement upon the carlicr plan — at least, with 

respect Lo the area of the state in which I live. Clearly race = just as for the 1992 plan 

predominated in the drawing of the Twelfth District, which cuts into High Point and Guilford 

County. Apart from a racial motive, I find it hard to believe that anyone in North Curolina could 

Justily putting Mecklenburg County in the same district with any part of Guilford County. 

Indeed. all of Mecklenburg County would be placed in the same district if traditional ruce-ncutral 

principles of redistricting were involved; likewise, all of Guilford would be in the same district. 

Further declarant sayeth not. 

\ LL   
i 

NORTH CAROLINA 
GUILFORD COUNTY 

Subscribed und sworn to before me this 22 day of 7200 , 199%. 

pr Public 

My Commission Expires 11-8GY 

  

  

My Commission cxpires: 
  

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