Emergency Application for Stay Pending Appeal of the Decision of the Three-Judge Court

    No. 

  
  

  

In the 

Supreme Court of the United States 
October Term, 1999 

  

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

Petitioners, 

V. 

MARTIN CROMARTIE, et al., 

Respondents. 

  

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 

  

To the Honorable William H. Rehnquist, Chief Justice of the United States and Circuit 

Justice for the Fourth Circuit: 

Late on the afternoon of March 7, 2000, the United States District Court for the Eastern 

District of North Carolina issued an opinion (1) declaring District 12 in North Carolina’s 1997 

congressional redistricting plan unconstitutional, (2) permanently enjoining the defendants from 

using “District 12 in future elections,” and (3) providing defendants “an opportunity to correct the 

constitutional defects” without setting any timetable, “in default of which the Court would undertake 

the task.” A copy of the Court’s opinion, containing its order and injunction, is contained in 

Appendix 1. Defendants have filed notice of appeal from that order. See Appendix 2. Pursuant to 

 



  

2 

Rule 23 of the Rules of this Court, defendants now respectfully move for an order staying the district 

court’s order pending final action on their appeal. 

Defendants today also have requested the district court to stay its order pending appeal, but 

the district court has not yet acted on that motion. See Appendix 3. Primary elections are scheduled 

to be held on May 2, 2000, and absentee voting in those primaries is scheduled to begin next week 

on March 18,2000. Without a stay by March 16, 2000, defendants will be required to postpone their 

congressional primaries, holding them at some later time separately from all other primaries. 

Because of the disruption, cost, and negative impact on voting turnout immediately resulting to 

defendants and the public from the district court’s opinion, order and injunction, defendants are 

today also filing this emergency application for a stay. 

STATEMENT OF THE CASE 

This case and Shaw v. Hunt, 517 U.S. 899 (1996), are intertwined. On June 13, 1996, this 

Court in Shaw declared District 12 in North Carolina’s 1992 congressional redistricting plan an 

unconstitutional racial gerrymander, but declined to consider a challenge to District 1 in that plan 

because no plaintiffhad standing to challenge it. Following remand, the Shaw plaintiffs moved on 

July 9, 1996, to amend their complaint to add as plaintiffs persons residing in District 1. These new 

plaintiffs were Martin Cromartie, Thomas Chandler Muse and Glennes Dodge Weeks. On that same 

day, Mr. Cromartie, Mr. Muse and Ms. Weeks filed this separate action also challenging District 1. 

On September 3, 1996, the district court entered an order staying all proceedings in this 

action pending completion of the Shaw litigation. By order dated August 8, 1996, the district court 

in Shaw (1) allowed the 1992 plan to be used for the 1996 election but enjoined any use of the 1992 

plan after the 1996 election, (2) referred to the General Assembly the responsibility to enact a new 

 



3 

plan remedying the constitutional defect in the 1992 plan, and (3) directed the General Assembly to 

submit a new plan for the district court’s approval no later than March 31, 1997. On August 21, 

1996, this Court rejected plaintiffs’ efforts to overturn that order, including that part of the order 

allowing the 1992 plan to be used for the 1996 election. 

On March 31, 1997, the General Assembly enacted a new congressional redistricting plan, 

1997 N.C. Sess. Laws, ch. 11 (1997 Plan”), and on April 1, 1997, submitted the plan to the district 

court in Shaw for approval. On June 9, 1997, the district court directed Mr. Cromartie, Mr. Muse 

and the other plaintiffs to advise the court “whether they intended to claim that the [new] plan should 

not be approved by the court because it does not cure the constitutional defects in the former plan.” 

They responded on June 29, 1997, informing the district court that they contended that the 1997 Plan 

was unconstitutional but requesting that the court “not approve or otherwise rule on the validity” of 

the new plan. On September 12, 1997, the district court in Shaw ordered the 1997 Plan 

“APPROVED as having adequately remedied the specific constitutional violation respecting former 

congressional District 12.” No appeal was filed from that order. 

On October 17, 1997, the stay order in this case was dissolved by the district court. On that 

same date, plaintiffs filed an amended complaint claiming that Districts 1 and 12 in the 1997 Plan, 

just approved by the district court in Shaw, were unconstitutional. Even though the 1998 elections 

process began on January 5, 1998, with the opening of the candidate filing period, plaintiffs took no 

action on their complaint until January 30, 1998, when they moved for a preliminary injunction 

stopping the elections process. On F ebruary 5, 1998, plaintiffs also moved for summary judgment 

and on March 3, 1998, defendants responded with their cross motion for summary judgment.  



  

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On March 31, 1998, the district court heard arguments on the parties’ cross-motions for 

summary judgment and plaintiffs’ motion for a preliminary injunction. Late on the afternoon of 

April 3, 1998, the district court, with Circuit Judge Sam J. Ervin, III dissenting, granted summary 

judgment to plaintiffs, declared District 12 unconstitutional and permanently enjoined the State from 

“conducting any primary or general election” under the 1997 Plan.! The basis for the court’s 

decision was not explained. Instead, the court noted that “[m]emoranda with reference to [the] order 

will be issued as soon as possible.” Defendants filed an emergency application for stay with the 

Chief Justice, which was referred to the full Court and ultimately denied on April 13, 1998. On 

April 14, 1998, the three-judge court issued an opinion explaining the basis for its order and 

injunction of April 3, 1998. In that opinion, the majority ruled that the “uncontroverted material 

facts” established that the legislature had “utilized race as the predominant factor in drawing the 

District.” The district court’s finding was based not on any direct evidence of legislative motivation, 

but relied instead on an inference drawn from the district’s shape and racial demographics. This 

Court noted probable jurisdictionon September 29, 1998, and, on May 17, 1999, reversed the district 

court’s summary judgment. Hunt v. Cromartie, 526 U.S. 541, 119 S. Ct. 1545 (1999). 

As a consequence of the failure to stay the district court’s summary judgment order, the 

General Assembly was required to enact an interim congressional districting plan for the 1998 

election. 1998 Sess. Laws, ch. 2 (“1998 Plan”). The 1998 Plan specifically provided that it was 

effective for the 1998 and 2000 elections only if this Court failed to reverse the district court’s April 

3, 1998, order holding the 1997 Plan unconstitutional. The district court approved the 1998 Plan, 

  

1 The district court’s order made no reference to District 1, which was also challenged by plaintiffs. 

 



  

5 

and the United States Department of Justice “precleared”it under Section 5 of the Voting Ri ghts Act. 

Thereafter, the 1998 congressional districting elections were held under the 1998 Plan pursuant to 

a truncated schedule, with primary elections in September and no second or runoff primaries. Not 

surprisingly, the voter turnout for the special primary was extremely low -- only 8%. See Appendix 

4, Affidavit of Gary O. Bartlett. The 1998 Plan ceased to be effective once this Court reversed the 

district court’s summary judgment invalidating the 1997 Plan. 

Following this Court’s reversal of the 1998 summary judgment order, the district court 

established a schedule for discovery to be conducted prior to October 2, 1999, and for trial to be held 

the week of November 1, 1999. F ollowing the untimely death of Circuit Judge Sam J. Ervin, III, 

United States District Court J udge Lacy H. Thornburg was assigned to the three-judge panel, sitting 

by designation as Circuit Judge. Trial was held from November 29, 1999, through December 1, 

1999, with both District 1 and District 12 at issue. The panel made it clear during the trial that they 

understood the time pressures and that candidates would begin filing for offices in J anuary. Indeed, 

filing for all offices, including congressional seats, opened on January 3, 2000, and closed on 

February 7. See Appendix 4. Waiting over three months to issue its opinion after expediting trial, 

late in the afternoon of March 7, 2000, the district court filed its opinion, in which it ruled 

unanimously that District 1 was a constitutionally drawn district, but that District 12 was an 

unconstitutional racial gerrymander. The opinion enjoined defendants from using District 12 for any 

election. Judge Thornburg wrote a concurring and dissenting opinion in which he agreed that 

District 1 was constitutional, although he disagreed with the majority’s conclusion that District 1 

was subject to strict scrutiny. He dissented as to District 12, concluding plaintiffs had completely 

failed to meet their burden of showing that race predominated in the drawing of the district. He also 

 



  

6 

dissented from the majority’s injunction against any further use of District 12, believing that the 

disruption to the ongoing 2000 elections resulting from that injunction is intolerable. 

STATEMENT OF THE FACTS 

A. THE ONGOING ELECTION PROCESS. 

As explained in the attached affidavit of the Executive Secretary-Directorof the State Board 

of Elections, North Carolinians are in the process of electing twelve Representatives in Congress, 

fifty members of the State Senate, 120 members of the State House, a Governor, Lieutenant 

Governor, 8 members of the Council of State, and numerous other state and local government 

officials. Candidates for these offices filed for election between January 3 and February 7, 2000. 

Among them are 43 candidates for Congress. Voting is scheduled to begin on March 18, 2000, 

when the absentee voting period for primary elections begins. Primary elections are scheduled for 

May 2, 2000, including primaries among sixteen candidates for five of the State’s twelve 

congressional seats as well as primaries for numerous other offices, including hotly contested 

statewide primaries for Governor and such offices as Commissioner of Labor and Commissioner of 

Agriculture. See Appendix 4. In preparation for these primary elections, voters have informed 

themselves about the candidates, millions of dollars have been contributed to candidates, and money 

has been spent on campaigning and preparing for the elections. 

B. THE 1997 CONGRESSIONAL REDISTRICTING PLAN. 

The 1997 Plan was enacted by the General Assembly on March 3 1,1997. Itis a bipartisan 

plan, the product of a General Assembly divided between a majority Democratic Senate and a 

majority Republican House. In the House, fifty-two of sixty-one Republican members and thirty- 

four of fifty-nine Democratic members voted for the plan. In the Senate, twenty-eight of the thirty 

 



  

7 

Democratic members and four of the twenty Republican members voted for the plan. The only 

group of legislators opposed to the 1997 Plan were the African-American members of the House, 

a majority of whom voted against the Plan. 

When the redistricting process began, many did not believe that the politically divided 

legislature could successfully negotiate a plan and prevent redistricting from falling to the federal 

court by default. However, through the leadership efforts of Senator Roy Cooper, Chairman of the 

Senate Redistricting Committee, and Representative Edwin McMahan, Chairman of the House 

Redistricting Committee, a new plan was developed that cured the constitutional defects in the prior 

plan and that garnered the support of a majority of the members of the Senate and a majority of the 

members of the House. From the beginning, Cooper and McMahan recognized that the only path 

by which a compromise could be reached was to craft a plan which, while curing the constitutional 

defects, also preserved the existing six-six partisan balance between Democrats and Republicans in 

the State’s congressional delegation. 

The General Assembly’s first goal in enacting the 1997 Plan was to cure the defects in the 

1992 plan by assuring that race did not predominate over all other redistrictingcriteria in the drawing 

of districts. To achieve this goal, the leaders of the House and Senate agreed that the following 

traditional criteria should be emphasized in drawing the new plan: (1) avoidance of divided 

precincts; (2) avoidance of divided counties except as needed to maintain partisan balance; (3) 

avoidance of “cross-overs,” “double cross-overs,” long narrow corridors and other artificial means 

of maintaining contiguity; and (4) recognizing functional compactness (grouping together citizens 

with similar needs and interests). 

 



  

8 

The enacted plan demonstrates the success the legislative leaders achieved in accomplishing 

the goal of curing the defects in the previous plan, including the improved appearance of the 

districts. For example: (1) in the entire plan only two precincts were divided (to accommodate 

peculiar local or political circumstances); (2) the number of divided counties was reduced from 44 

to 22; (3) splits dividing counties between three congressional districts were eliminated; and (4) all 

“cross-overs,” “double cross-overs,” and places with “point contiguity” were eliminated. Traditional 

redistricting criteria were applied to District 12 with the followingresults: (1) its length was reduced 

almost by half (from 191 miles to 102 miles); (2) four counties were removed so that the district now 

includes six counties; (3) only one precinct is divided, for partisan and incumbency protection 

reasons; and (4) functional compactness was achievd in that the district is a highly urban district 

joining the major metropolitan areas of Charlotte and the Piedmont Urban Triad (Winston-Salem, 

Greensboro, High Point). Although the House and Senate initially differed on extending District 12 

either to Winston-Salem (Senate) or to High Point and Greensboro (House), ultimately it was 

decided to include all three parts of the Triad. This decision to include all of the Triad cities was 

purely partisan. It had the result of not wasting Democratic voters in the surrounding Republican 

districts and it satisfied the affected Republican incumbents. See Appendix 5, Trial Testimony of 

Roy A. Cooper at 353-58. 

The second goal agreed to by the leaders of the House and Senate was to draw the 1997 Plan 

to maintain the existing partisan balance (six Republicans and six Democrats) in the State’s 

congressional delegation. Agreement on this goal 1s the critical factor that made it possible for the 

House and Senate to enact a plan. It is also the factor that principally determined the location and 

shapes of the new districts. 

 



  

0 x 
Y 

To achieve this goal, the leaders of the House and Senate drew the 1997 Plan (1) to avoid 

placing two incumbents in the same district and (2) to preserve the partisan core of the existing 

districts to the extent consistent with the goal of curing the defects in the old plan. The plan as 

enacted reflects these goals. Each incumbent resides in a different district, and each district retains 

at least 60% of the population of the old district. The leaders of the House and Senate Committees 

also had available, and used, partisan voting behavior data Coating of precinct level voter 

registration data and the results of the 1990 U.S. Senate election and the 1988 Lieutenant Governor 

and Court of Appeals elections. Voter registration, especially Democratic voter registration, was not 

considered a reliable indicator of voting behavior. Other more recent election results were also 

available and used, especially by Senator Cooper. This voting behavior information was used to 

assign precincts to districts and to estimate the results of future elections. The intense negotiations 

between the House and Senate throughout the redistricting process centered on partisan politics, not 

race. The redistricting software allowed the drafters to view voting data by precinct on the computer 

screen, and it was this information that was used to move precincts and draw district boundary lines. 

Projected partisan performance and protection of incumbents dominated the process not only for 

challenged Districts 1 and 12, but throughout the state. See Appendices 5 and 6, Trial Testimony 

of Cooper & McMahan. 

District 12 is one of the six Democratic districts established by the 1997 Plan in order to 

maintain the six-six partisan division in the State’s congressional delegation. Surrounded by 

Republican districts, it is virtually a Democratic island ina Republicansea. See Appendices 7,8 and 

9. All five districts with which District 12 shares a boundary are Republican districts with 

Republican incumbents (Congressman Burr in District 5, Congressman Coble in District 6, 

 



  

10 

Congresswoman Myrick in District 9, Congressman Hayes in District 8, and Congressman Ballenger 

in District 10). 

District 12 isnot a majority-minority district; only 46.67% of its total population and 43.6% 

of its voting age population are African-American. It does, however, rely on the strong support of 

African-American voters for Democratic candidates to cement its status as one of the six Democratic 

districts. Asa consequence of the fact that a high percentage of white voters in the six counties in 

which District 12 is located vote Republicanand the fact that a high percentage of African-American 

voters in those counties vote Democratic, approximately 70% of the white voters residing in those 

counties are assigned to a Republicandistrict (Districts 5,6,9 or 10). Similarly, approximately 70% 

of African-American voters residing in those counties are assigned to District 12. That political 

voting preference, not race, was the basis for assignment of voters to District 12 is demonstrated by 

Dr. Peterson’s statistical analysis of the 234 precincts which form the boundary between District 12 

and its adjoining districts. An analysis of the political and racial characteristics of each of these 234 

precincts demonstrates that the path followed by that boundary is better explained by the political 

preferences of voters than by their race. Over 80% of the time, the precinct just inside District 12 

is more Democratic than the precinct just outside District 12. See Hunt, 119 S. Ct. at 1550-51. Even 

using the methodology preferred by plaintiffs’ expert Dr. Weber, an analysis of split counties and 

towns based on partisan registration and voting data, rather than racial data, confirms that 

Democratic performance dictated the drawing of both District 12 and District 1. See Appendices 10 

and 11. 

 



  

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REASONS FOR GRANTING A STAY 

The standards governing consideration of in-chambers applications for equitable relief are 

well settled. Generally, a single Justice or the Chief Justice may grant relief upon a showing that: 

(1) four members of the Court will consider the issue sufficiently meritorious to grant certiorari or 

to note probable jurisdiction; (2) there is a fair prospect that five Justices will conclude that the case 

was erroneously decided below; (3) irreparable harm will likely result from the denial of equitable 

relief; and (4) in appropriate cases, that the balance of equities is such that the injury asserted by the 

applicant outweighs the harm to the other parties or to the public. Lucas v. Townsend, 486 U.S. 1301 

(1988) (Kennedy, J., in chambers). All elements of this test are met in this case. 

I. IRREPARABLE INJURY WILL RESULT IF A STAY IS DENIED. 

This case is extraordinary because of the irreparable harm it needlessly inflicts upon the 

defendants, North Carolina voters, and congressional candidates. Indeed, irreparable injury 

inevitably results from court orders interfering with ongoing elections. These injuries take multiple 

forms. “[Alny time a State is enjoined by a court from effectuating statutes enacted by 

representativesof its people, it suffers a form of irreparable injury.” New Motor Vehicle Bd. of Cal. 

v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977). Likewise, undue judicial interference with the 

redistricting process is a form of irreparable injury. Karcher v. Daggett, 455 U.S. 1303, 1306-07 

(1982) (noting “irreparable harm” resulting from court order requiring that the New Jersey 

Legislature “either adopt an alternative redistricting plan before March 22 next or face the prospect 

that the District Court will implement its own redistricting plan.”).? The injuries resulting from the 

  

2 “[R]eapportioning with undue frequency” itself creates a “large potential for disruption.” 
Maryland Citizens for a Representative General Assembly v. Governor of Md., 429 F.2d 606, 610 

 



  

12 

interruption of ongoing elections are widespread. Voters are confused. Candidates suffer from 

wasted efforts and expenditures. Tax dollars are spent needlessly. Most important, democracy itself 

suffers when voter turnout is low and when voters lose confidence in the election process itself. See, 

e.g., Cosner v. Dalton, 522 F. Supp. 350, 363-64 (E.D. Va. 1981); French v. Boner, 771 F. Supp. 

896 (M.D. Tenn. 1991). 

North Carolina is no different. The district court's injunction against the use of District 12 

in the 1997 Plan wreaks irreparable harm on North Carolina because, if not stayed by March 16, 

2000, it requires postponement of the congressional primaries.’ See Appendix 4. Without a stay, 

North Carolina will find itself adopting new congressional districts, opening a new filing period, 

attempting to educate voters about the new districts, and conducting congressional primaries at a 

time when voter turnout will inevitably be much lower. For the district court to require new districts 

at this point, under these circumstances, is contrary to the admonitions of this Court against 

disrupting the election process. In the seminal decision of Reynolds v. Sims, 377 U.S. 533, 535 

(1964), this Court explained to lower courts that 

under certain circumstances, such as where an impending election is imminent and 
a State’s election machinery is already in progress, equitable considerations might 
justify a court in withholding the granting of immediately effective relief in a 
legislative apportionment case, even though the existing apportionment scheme was 
found invalid. . .. [A] court is entitled to and should consider the proximity of a 
forthcoming election and the mechanics and complexities of state election laws, and 
can reasonably endeavor to avoid a disruption of the election process which might 
result from requiring precipitate changes that could make unreasonable or 

  

(4th Cir. 1970). 

3 Absentee balloting commences March 18,2000. Ifa stay is entered, printing of ballots will have to begin immediately, and other steps required to prepare for the primary may not be delayed past March 16, 2000. See Appendix 4. 

 



  

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embarrassing demands on a State in adjusting to the requirements of the court’s 
decree. 

Acting on the principles set out in Reynolds, this Court has often stayed orders of three-judge courts 

invalidating election plans and enjoining elections. See Voinovich v. Quilter, 503 U.S. 979 (1992); 

Growe v. Emison, 503 U.S. 928 (1992); Wetherell v. De Grandy, 505 U.S. 1231 (1992); Louisiana 

v. Hays, 512 U.S. 1273 (1994); Miller v. Johnson, 512 U.S. 1283 (1994). In other instances, the 

Court has affirmed lower courts’ decisions permitting elections to go forward under invalidated 

plans. E.g., Watkins v. Mabus, 502 U.S. 954 (1991) (summarily affirming in relevant part Watkins 

v. Mabus, 771 F. Supp. 789, 801, 803-05 (S.D. Miss. 1991) (three-judge court)); Republican Party 

of Shelby County v. Dixon, 429 U.S. 934 (1976) (summarily affirming Dixon v. Hassler, 412 F. 

Supp. 1036, 1038 (W.D. Tenn. 1976) (three-judge court)). 

The irreparable injuries visited upon defendants and the public by the district court’s 

injunction stopping elections under North Carolina’s 1997 Plan are especially acute. The candidate 

filing period ended over a month ago, absentee balloting is about to begin, and the candidates are 

already wooing voters in what they believe to be their congressional districts. See Appendix 4. 

North Carolina and its voters should not be subjected to the disruption that will result from changing 

the districts yet again at this late date. Throughout this decade, despite the good faith efforts of the 

legislature, North Carolina’s congressional districts have changed repeatedly, from the 1991 plan 

rejected by the United States Department of Justice, to the 1992 plan approved by the Department 

of Justice, but ultimately invalidated by this Court, to the 1997 Plan, approved by one district court 

in 1997 and then disapproved by another district court in 1998, to the 1998 Plan used for the 1998 

elections, and then back to the 1997 Plan after this Court reversed the district court’s summary 

 



  

14 

judgment ruling invalidating the 1997 Plan. If this Court does not grant a stay, the General 

Assembly will again have to adopt a new plan, causing voters to have to determine yet again in 

which districts they reside and which candidates they should support (or oppose). Candidates in 

districts that change will have to decide whether to run in the new districts. They may find that they 

have wasted thousands of dollars on campaign efforts in areas which are no longer part of the 

districts in which they seek election. They may have to seek new supporters and replace campaign 

workers who do not reside in their new districts. The result is that voters will not be as well- 

informed, candidates will not be able to communicate as effectively with the voters, and the primary 

elections will be held at a time when voter turnout will be depressed.* 

North Carolina recently suffered just such an experience. In 1998, when the district court 

wrongly invalidated the 1997 Plan the first time, congressional primaries were held separately in 

September with a turnout of only about 8% of the registered voters, far below the anticipated turnout 

for this year’s May primaries. See Appendix 4. The goal of congressional elections is to allow the 

voters to choose their representatives. That goal 1s lost when the courts repeatedly issue rulings at 

  

* See Cardona v. Oakland Unified Sch. Dist., 785 F. Supp. 837, 842-43 (N.D. Cal. 1992) 
(denying relief due to proximity of election); Banks v. Board of Educ. of Peoria, 659 F. Supp. 394, 
398 (C.D. 111. 1987) (“the candidates had already begun campaigning, forming committees to raise 
funds, and campaign making decisions about political strategy, and spending money for publicity 
purposes”); Knox v. Milwaukee County Bd. of Election Comm rs, 581 F. Supp. 399, 405 (E.D. Wis. 
1984) (“candidates’ election reports have been filed, campaign committees organized, contributions 
solicited, and literature distributed”); Martin v. Venables, 401 F. Supp. 611, 621 (D. Conn. 1975) 
(denying relief where parties had selected their endorsed candidates and time for challengers to 
qualify for primaries had passed); Dobson v. Mayor and City Council of Baltimore, 330 F. Supp. 
1290, 1301 (D. Md. 1971) (disrupting election schedule would mean present candidates would lose, 
in large measure, the benefit of their campaigning to date); Klahr v. Williams, 313 F. Supp. 148, 152 
(D. Ariz. 1970) (redistricting where filing deadline was less than two months away would involve 
serious risk of confusion and chaos), aff'd sub nom. Ely v. Klahr, 403 U.S. 108, 113 (1971). 

 



      

15 

a time that prevents congressional primaries from being held with all the other primaries and only 

a handful of voters turn out for the special congressional primaries. 

Instead of requiring new districts to be drawn for this year’s elections, the district court 

should have followed the example of the Shaw v. Hunt district court in 1996. When this Court 

invalidated the 1992 plan, the Shaw panel denied injunctive relief to plaintiffs in 1996, allowing the 

congressional elections to proceed under the invalidated plan. “[R]isks of candidate and voter 

confusion, administrative breakdowns, and reduced voter turn-out,” Shaw, 92-202-CIV-5-BR, 

Memorandum Opinion, Aug. 8, 1996 at 10, all weigh on the side of permitting North Carolina’s 

elections to proceed under the existing plan. The district court’s ordering of a new plan at this late 

date ignores the irreparable harm to the voters and candidates, to the State and its election officials, 

and to the public that will result if North Carolina is forced to adopt a new plan and postpone 

congressional primaries again this year. F inally, it will force the State to spend millions of dollars 

it can ill-afford on a separate election it has not scheduled and for which neither the State or its 100 

counties have budgeted. 

When a districting plan is invalidated early in the census cycle, the benefits from forcing a 

State to redraw the plan immediately, even in the midst of an election, may outweigh the danger of 

disruption to the elections process. But we are not early in the census cycle; We are at its end. With 

a new congressional districting plan required in 2002, regardless of what happens now, the district 

court’s decision to compel a new plan and to distort the congressional primary and campaign 

schedule unnecessarily imposes unacceptable irreparable harm on North Carolina and its citizens. 

 



  

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IL. NO INJURY WILL RESULT TO PLAINTIFFS OR ANY OTHER PERSONS IF THE DISTRICT COURT’S ORDER IS STAYED. 

Plaintiffs have never demonstrated any way in which they would suffer any injury if 

congressional elections were held under the 1997 Plan. In their amended complaint, they merely 

asserted generally that the plan injured and impaired their rights as citizens and voters, that it denied 

them their rights to equal protection of the laws, and that it abridged their rights as registered voters. 

In their motion for a preliminary injunction, they asserted in passing that the State’s 1997 Plan 

caused them “representational” and “stigmatic” injuries. This case is not a class action, and the 

only genuine District 12 challengers to the 1997 Plan are plaintiffs R. O. Everett, a cousin of 

plaintiffs’ counsel (Trial Transcript p. 81 (“T. p.”)), and J. H. Froelich, Jr., a friend and business 

associate of plaintiffs’ lead counsel (T. p. 107).> Despite their complaints, neither made any real 

showing of harm resulting to them from the 1997 Plan. PlaintiffR. O. Everett became a plaintiff at 

the request of his lawyer cousin when counsel needed a plaintiff for District 12. (T.p.96) Plaintiff 

J. H. Froelich appears to have been upset when he moved from one residence to another located in 

the city of High Point, resulting in his living in District 12 in both the 19972 and 1997 Plans. (T. pp. 

102-03). Neither plaintiff made a showing of harm sufficient to justify depriving thousands and 

thousands of North Carolina voters of their right to participate in meaningful congressional primaries 

conducted in an orderly manner along with all other North Carolina primaries for the year 2000. 

  

5 A third plaintiff who was originally alleged to live in District 12, Ronald Linville, turned out not to be a resident of District 12 in the 1997 Plan. The status of Mr. Linville’s role in this case was discussed by Judge Thornburg in his dissenting and concurring opinion. See Appendix 1, Thomburg Dissent. The majority below considered the issue of Linville’s standing moot in view of the presence of other plaintiffs with standing. At any rate, Linville clearly did not show any injury related to District 12 in the 1997 Plan. 

 



  

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II. IT IS LIKELY THAT FOUR MEMBERS OF THIS COURT WILL NOTE 
PROBABLE JURISDICTION AND THAT FIVE JUSTICES WILL CONCLUDE 
THAT THE DISTRICT COURT’S ORDER WAS ERRONEOUS. 

The district court’s opinion in this matter is marked by a complete disregard for the role of 

the states in the difficult and complex redistricting process and the fundamental importance of 

orderly elections in a democracy. This failure resulted in two fatal errors. First, giving short shift 

to the testimony of the leaders of the Republican House and the Democratic Senate and focusing on 

issues of no relevance to the legislatureitself, the district court failed to abide by the Court’s decision 

in Bush v. Vera and the Court’s earlier decision in this case. Second, rejecting claim preclusion for 

those plaintiffs who had also been parties to Shaw, the district court allowed Shaw plaintiffs and 

counsel, their friends and relatives, to challenge the 1997 Plan again despite their lack of success in 

Shaw and the tactical maneuvering in which they engaged to present their claims below. 

A. THE DISTRICT COURT IGNORED THIS COURTS TEACHINGS IN BUSH AND HUNT. 

This case must again come before this Court because the district court failed to perform the 

analysis that it was instructed by this Court to perform. The case was remanded for trial, and a trial 

was held. Yet, when all the evidence was in, the district court never squarely addressed the central 

question recognized by this Court: whether race or politics predominated in the North Carolina 

General Assembly when it drew congressional District 12. Strongly affirming its prior decisions in 

Bushv. Vera, 517 U.S. 952, 968 (1996), and other cases, this Court explained for the district court, 

Our prior decisions have made clear that a jurisdiction may engage in constitutional 
political gerrymandering, even if it so happens that the most loyal Democrats happen to be black Democrats and even if the State were conscious of that fact. Evidence 
that blacks constitute even a supermajority in one congressional district while 
amounting to less than a plurality in a neighboring district will not, by itself, suffice 
to prove that a jurisdiction was motivated by race in drawing its district lines when 
the evidence also shows a high correlation between race and party preference. 

 



  

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Hunt v. Cromartie, 526 U.S. 541, __» 1198. Ct. 1545, 1551 (1999) (citations omitted). 

The essence of the State’s defense of District 12 was the overriding political necessity of 

creating a districting plan that would be likely to maintain the six-six partisan balance in the State’s 

congressional delegation. The legislature’stask was extremely difficult because the North Carolina 

Senate was majority Democratic, but the North Carolina House was majority Republican. Early on, 

the Democratic Senate Redistricting Committee chair and the Republican House Redistricting 

Committee chair determined that maintaining that partisan split and protecting incumbents, to the 

extent possible, was their only hope of developing a plan capable of being enacted by the General 

Assembly. See Appendix 5; Appendix 1, Thornburg Dissent at 13-14. Accordingly, District 12 was 

drawn with the intent to maintain it as a Democratic district. Consistent with Bush, precincts were 

assigned to the district based on partisan voting patterns.® Despite the importance of the Bush 

principle in resolving the critical predominance question, the district court ignores this Court’s 

direction in its factual and legal analysis. Bush is mentioned only in passing, in a footnote, for its 

converse holding that “race may not be used as a proxy for political characteristics.” Appendix 1, 

Opinionat 24 n.9. Indeed, the district court relies heavily on racial population data comparing the 

African-American populationsin split counties and cities within or adjacentto District 12. Id. at 10- 

11, 12-13. In so doing, the district court and plaintiff’s expert on whom they relied failed to look 

beyond black “supermajorities,” or give consideration to defendants’ evidence showing that the 

  

6 The redistricting computer data base contained not justracial data, but partisan voting results, by precinct, from three representative statewide elections. As noted by Judge Thornburg, in his dissenting opinion, plaintiffs’ expert had concluded that race predominated in drawing the congressional districts because he was not even aware that political information was displayed on the State’s redistricting computer. Appendix 1, Thornburg Dissent at 12 & n.23. 

 



  

19 

district’s configuration tracked political party voting patterns. Nor did the district court majority 

take into account the fact that the most loyal Democrats happen to be African-Americans. See Hunt, 

119 S. Ct. at 1551. Yet, as pointed out in Judge Thornburg’s dissent, all the parties agreed that 

African-American voters in North Carolina are extremely loyal Democrats, registering and voting 

Democratic at a rate over 95%. See Appendix 1, Thornburg Dissent at 9 n.16; T. p. 388. 

The distinction between registration data and actual voting results is critical in this case. The 

district court was aware of this distinction: this Court had previously pointed out the significance 

of the State expert’s analysis based on actual voting results’ “because it showed that in North 

Carolina, party registration and party preference do not always correspond.” Hunt, 119 S. Ct. at 

1551. Yet the district court again relied heavily on the registration data for selected precincts 

adjacent to District 12 with higher Democratic voting registration than precincts inside the district. 

Appendix 1, Opinion at 11-12. In fact, the district court failed even to acknowledge the maps 

introduced by the State showing a sea of Republicans surrounding District 12 based on precinct 

voting results. Instead, the district court described its depiction of excluded Democratic precincts 

(by registration) as “uncontroverted evidence.” Id. at 21. 

The district court’s treatment of Dr. Peterson’s expert testimony provides still another 

example of its disregard for the lessons to be learned from Hunt. This Court recognized the 

superiority of the systematic analysis that Dr. Peterson had undertaken involving all the precincts 

  

7 The unreliability of voter registration as a predictor of voting behavior was corroborated by 
the testimony of Senator Roy Cooper and was uncontradicted at trial. 

8 These maps were referenced by this Court in Hunt. 119 S. Ct. at 1545 n.6. Copies are 
contained in Appendices 7, 8 and 9. See also Appendix 1, Thornburg Dissent at 12 & n.21. 

 



  

20 

along the boundary of District 12. Hunt, 119 S. Ct. at 1550-51. In contrast, the district court 

cavalierly dismisses the Peterson analysis based on the opinion of plaintiffs’ expert, Dr. Weber, who 

found the Peterson report unreliable. However, the district court also ignored the analysis Dr. 

Peterson performed using Dr. Weber’s own methodology. Dr. Weber sorted the data of split 

counties and cities by racial percentage to establish that the precincts with the highest African- 

American population percentages were placed in Districts 1 and 12. This supported his conclusion 

that race was the predominate motive in drawing the districts. Using that same methodology, 

however, Dr. Peterson sorted the data for split counties and cities based on election results and party 

registration. This analysis established that the most Democratic-performing precincts were placed 

in Districts 1 and 12. See Appendices 10 and 11. Thus, by following Dr. Weber’s own pattern of 

reasoning, the political data supported a conclusion that politics predominated in the drawing of the 

districts. The district court’s failure to take into account Dr. Peterson’s analysis using Dr. Weber's 

methodology, while relying substantially on Dr. Weber’s analysis, reflects the consistent failure of 

the district court majority truly to analyze the evidence according to the teachings of Bush and Hunt. 

On its face, the district court’s findings and conclusions have been made in disregard of the 

applicable legal standards specifically articulated by this Court. To the extent the district court’s 

opinion incorporates “findings of fact,” those findings are no barrier to this Court’s correcting the 

district court’s mistakes. The “clohily erroneous” rule of Rule 52, F.R. Civ. P., “does not inhibit 

an appellate court’s power to correct errors of law, including those that may infect a so-called mixed 

finding of law and fact, or a finding of fact that is predicated on a misunderstandingof the governing 

rule of law.” Thornburg v. Gingles, 478 U.S. 30, 79 (1986) (quoting Bose Corp. v. Consumers 

Union of United States, 466 U.S. 485 (1984)). Moreover, the district court’s findings may be set 

 



  

21 

aside when “the reviewing court on the entire evidence is left with the definite and firm conviction 

that a mistake has been committed.” Anderson v. Bessemer C ity, 470 U.S. 564, 573 (1985) (quoting 

United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). 

In this case, certain fundamental principles have been disregarded or turned on their head by 

the district court. First, redistricting is primarily the duty and responsibility of the State through its 

legislature, rather than of a federal court. Chapman v. Meier, 420 U.S. 1, 27 (1975). Second, the 

courts must give substantial deference to the legislature, which is entrusted with the discretion to 

exercise the political judgment necessary to balance competing interests. Miller v. Johnson, 515 

U.S. 900, 915 (1995). Third, the federal courts must presume the legislature acted in good faith. Id. 

Fourth, the plaintiff must be held rigorously to the demanding burden of showing that “other, 

legitimate districting principles were ‘subordinated’ to race,” i.e., that race was “the predominant 

factor motivating the legislature’s [redistricting] decision.” Bush, 517 U.S. at 959 (citing Miller, 515 

U.S. at 916) (emphasis and alterationin Bush). Shaw and its progeny were never intended to provide 

an easy vehicle for the federal court to substitute its judgment for that of a state legislature. When 

the district court gives mediingless lip service in its application of this Court’s redistricting 

standards, it vitiates Shaw's basic objective of making only “extreme instances” of racial 

gerrymandering subject to strict scrutiny. Miller, 515 U.S. at 928-29. The district court's 

application of these principles has reduced plaintiffs’ burden of establishing that racial 

considerations predominated to a mere showing that there was some consideration of race.’ 

  

9 The district court similarly rushed immediately to strict scrutiny of District 1 without 
requiring plaintiffs to establish that racial motives predominatedin substantial disregard of legitimate 
redistricting criteria such as compactness, contiguity and communities of interest. For the district 
court, the intent to create a majority-minority district standing alone, without consideration of other 

 



  

22 

Judge Thornburg in his dissenting opinion, provides this Court a balanced review of the 

evidence and a reasoned application of this Court's redistricting principles. The contrast in the 

majority’s opinion and Judge Thornburg’s dissent leads to the inescapable conclusion that the 

opinion on which the district court’s injunction is based is predicated on a misunderstanding or 

disregard of important redistricting principles and a firm conviction that a serious mistake, resulting 

in harmful disruption to North Carolina’s election process, has been committed. 

B. THE DISTRICT COURT ERRONEOUSLY HEARD THIS CASE DESPITE THE BARRIERS 
OF CLAIM PRECLUSION AND VIRTUAL REPRESENTATION. 

The district court never should have addressed the merits of this case because the plaintiffs’ 

claims were barred by claim preclusion and virtual representation. This case thus raises important 

issues concerning the effect of a final judgment from a court of competent jurisdiction holding 

constitutional a state’s proposed redistricting plan on the ability of the parties to that judgment and 

their privies to challenge the same plan again in a later lawsuit before a different court. !° 

Two of the plaintiffs who challenged District 1 -- Cromartie and Muse -- participated as 

parties plaintiff in the remedial proceedings in Shaw. In those proceedings, the court offered them 

a full and fair opportunity to litigate any constitutional challenges they might have to the 1997 Plan, 

  

redistricting factors in play, triggered strict scrutiny. This makes a mockery of this Court’s teaching that strict scrutiny does not “apply to all cases of intentional creation of majority-minority districts.” Bush, 517 U.S. at 958 (citing DeWitt v. Wilson, 856 F. Supp. 1409 (E.D. Cal. 1994), aff'd 515 U.S. 1170 (1995)). 

10 This very issue was raised by defendants in their jurisdictional statement in 1998, on appeal from the summary judgment order holding the 1997 Plan unconstitutional. However, defendants decided to defer arguing the issue until they could obtain the factual information they needed to support it fully. See State Appellants’ Brief On The Merits, Hunt v. Cromartie, No. 98-85, p-9n.12. On remand, of course, defendants were able in discovery to explore the issue and obtain the factual data that they have offered in support of defendants’ objection. 

 



be 

which the State had proposed as a remedy for the constitutional defects found in the earlier plan. 

They elected not to avail themselves of that opportunity, and the Shaw court entered a final judgment 

finding the plan constitutional and authorizing the State to proceed with elections under it. Under 

elementary principles of claim preclusion, that final judgment extinguished any and all claims 

Cromartie and Muse had with respect to the validity of the 1997 Plan, including the claim they 

asserted in this action, challenging the 1997 Plan’s District 1 as a racial gerrymander. That 

Cromartie and Muse elected not to assert that particular claim in Shaw did not save it from 

preclusion here; indeed, the very purpose of the doctrine of claim preclusion is to prevent plaintiffs 

from engaging in this sort of strategic claim-splitting. 

Ignoring fundamental principles of claim preclusion, the district court held that the final 

judgment entered in Shaw did not bar the claims appellants assert here. Appendix 1, Opinion at 2-3 

& n. 1. The court based this conclusion on its understanding that the Shaw court “was not presented 

with a continuing challenge to the redistricting plan.” Id. at 2-3. To the extent the court meant that 

the Shaw court did not resolve the issue of the 1997 Plan’s constitutionality, it was mistaken." To 

  

'' The Shaw court did not expressly reserve the claims in question for resolution in a later proceeding. Though the Shaw plaintiffs asked it to “dismiss the action without prejudice to the right of any person having standing to maintain a separate action attacking the constitutionality of the [1997] congressionalredistricting plan,” the court declined to do $0. Shaw v. Hunt, No. 92-202-CIV- 5-BR, Plaintiffs’ Response to Order of June 9, 1997, filed June 19, 1997. While the court stated that its approval of the plan was necessarily “limited by the dimensions of this civil action as that is defined by the parties and the claims properly before us,” and that it therefore did not “run beyond the plan’s remedial adequacy with respect to those parties,” it specifically held the plan constitutional “as to the plaintiffs. . . in this case.” Shaw, Memorandum Opinion, Sept. 12, 1997. The only claim the court dismissed “without prejudice” was “the claim added by amendment to the complaint in this action on July 12, 1996,” in which the Shaw plaintiffs “challenged on ‘racial gerrymandering’ grounds the creation of former congressional District 1.” Shaw, Order, Sept. 12, 1997 (emphasis added.) As the court recognized, this claim was mooted by its approval of the 1997 Plan.  



  

24 

the extent the court meant only that the Shaw plaintiffs chose to assert no challenge to the 1997 Plan 

in those earlier proceedings, it missed the central point of the doctrine of claim preclusion, which 

bars claims that were or could have been brought in the prior proceedings. E. g., Commissioner of 

Internal Revenue v. Sunnen, 333 U.S. 591,597 (1948); Cromwell v. County of Sac, 94 U.S. 351,352 

(1876). The district court’s flawed approach to the preclusion issue thus led it to require the parties 

unnecessarily to go to trial on District 1 and further to rule erroneously that District 1 was a racial 

gerrymander subject to strict scrutiny. See Appendix 1, Thornburg Dissent at 16-19. 

Nor was the district court justified in asserting jurisdiction even if it believed the prior 

judgment to be wrong. See Federated Dep 't Stores, Inc. v. Moitie, 452 U.S. 394 (1981). The district 

court’s apparent attempt in this case to correct a perceived error in the earlier, unappealed Shaw 

judgment flies in the face of this bedrock principle of our civil justice system. 

The final judgment entered in Shaw also barred the claims plaintiffs Everett, Froelich, 

Linville, Bourne and Weaver asserted in this action. Plaintiffs Bourne and Weaver challenged 

District 1 while plaintiffs Everett, Froelich, and Linville challenged District 12'2 as a racial 

gerrymander. Though these individuals were not actually parties in Shaw, they are bound by the 

final judgment entered in that case because their interests were so closely aligned with those of the 

Shaw plaintiffs as to make the Shaw plaintiffs their “virtual representatives” in that earlier action. 

Thus, the district court’s opinion is inconsistent with the principle repeatedly recognized by federal 

circuit courts -- that a party may be bound by a prior judgment, even though he was not formally 

named as a party in that prior action, when his interests were closely aligned with those of a party 

  

12 As discussed in II supra, Mr. Linville is not in fact a resident of District 12 (or District 1) in 
the 1997 Plan, and he lacks standing as a plaintiff in this action. 

 



23 

to the prior action and there are other indicia that the party was serving as the non-party’s “virtual 

representative” in the prior action. See Ahng v. Allsteel, Inc., 96 F.3d 1033, 1037 (7th Cir. 1996); 

Chase Manhattan Bank, N.A. v. Celotex Corp., 56 F.3d 343, 345-46 (2d Cir. 1995); Gonzalez v. 

Banco Cent. Corp., 27 F.3d 751, 761 (1st Cir. 1994); Nordhorn v. Ladish Co., 9 F.3d 1402, 1405 

(9th Cir. 1993); Royal Ins. Co. of Am. v. Quinn-L Capital Corp., 960 F.2d 1286, 1297 (5th Cir. 

1992); Jaffree v. Wallace, 837 F.2d 1461, 1467-68 (11th Cir. 1988). The relationships between the 

Shaw plaintiffs and counsel, on the one hand, and additional plaintiffs in this case, on the other hand, 

share many of the classic indicia of “virtual representation”: close relationships between the parties 

and the nonparties, the same counsel, simultaneous litigation seeking the same basic relief under the 

same basic legal theory, and apparent tactical maneuvering to avoid preclusion. See Jaffree, 837 

F.2d at 1467. In particular, the only plaintiffsin this case with standing to challenge District 12 are 

Mr. R. O. Everett, first cousin of lead counsel Robinson Everett, and Mr. J. H. F roelich, Jr. Plaintiff 

Everett became a party after the Shaw decision when his lawyer cousin called and explained “that 

he needed to start over” and that “he needed a plaintiffin Rowan County.” R. O. Everett Deposition, 

Oct. 1, 1999, at 33. Plaintiff Froelich is a long-time friend and business associate of lawyer Everett 

who was aware of the Shaw suit long before he became a party to this suit and, in fact, provided a 

Declaration as evidence in connection with a Shaw hearing. Froelich Deposition, Sept. 30, 1999, 

at 13-15. 

By refusing to recognize that the plaintiffs should have been precluded from challenging the 

plan, the district court in effect allowed plaintiffs and others unrestricted license to keep attacking 

the congressional redistricting plan as many times as it took for them to succeed. It is because of the 

specter of never-ending litigation that virtual representation is so appropriately applied in lawsuits  



  

26 

of this sort, involving challenges to matters of public law, both because the claim is less personal and 

because “the number of plaintiffs with standing is potentially limitless.” Tyus v. Schoemehl, 93 F.3d 

449, 456 (8th Cir. 1996) cert. denied, 520 U.S. 1166 (1997). Otherwise, such claims “would assume 

immortality.” Los Angeles Branch NAACP v. Los Angeles Unified Sch. Dist., 750 F.2d 731, 741 

(9th Cir. 1984). Similarly, tactical maneuvering is another strong basis for applying the concept of 

virtual representation. Such tactical maneuvering here led to the Shaw plaintiffs’ request that the 

Shaw court not consider the validity of the 1997 Plan while some of the same plaintiffs, with the 

same lead counsel, immediately challenged the 1997 Plan in this case. See T yus, 98 F.3d at 455. 

The district court ignored all the strong indicia of virtual representation, including the closeness 

between many of the original parties and the plaintiffs here or their attorney, the extent to which the 

case is attorney-driven, the tactical maneuvering, and the public interest nature of the suit. 

Consequently, the district court should never have reached the merits of this case. 

~ The policies behind the doctrine of claim preclusion are at their most compelling when the 

claims in question seek to interfere with a state’s electoral processes. The strong public interest in 

the orderly administration of states’ electoral machinery requires efficient and decisive resolution 

of any disputes regarding these matters. In this case, the district court’s disregard of basic principles 

of claim preclusion has resulted in the entry of dramatically inconsistent judgments -- the first 

ordering the State to go forward with its congressional elections under the 1997 Plan and the second, 

and now a third, enjoining it from doing so. It has resulted in throwing North Carolina’s elections 

into confusion, wasting judicial resources, diverting the state legislature from the business of 

governing, and causing the State’s taxpayers to incur significant additional expense. It is difficult 

to imagine a greater affront to the policies behind the doctrine of claim preclusion, to core principles 

 



27 

of state sovereignty and federalism, and to the very integrity of the federal system of justice itself 

as well as the public’s confidence in that system of justice. 

CONCLUSION 

For the foregoing reasons, petitioners respectfully request that the district court’s March 7 

2000, Opinion, order and injunction be stayed pending final decision on their appeal. Petitioners 

further respectfully request the Court to grant this stay no later than March 16, 2000, for after that 

date a stay cannot protect the integrity of the State’s election process from the harm inflicted by the 

district court’s injunction. 

This the 10th day of March, 2000. 

MICHAEL F. EASLEY 
ATTORNEY GENERAL 

Clie Th Sneee J. fre 
Edwin M. Speas, Jr. 
Chief Deputy Attorney General 
N.C. State Bar No. 4112 

ton B nid, 
iare B. Smiley 

Special Deputy Attorney General 
N. C. State Bar No. 7119 

Asia) tt thf 
Norma S. Harrell 

Special Deputy Attorney on 
N.C. State Bar No. 6654 

  

  

  

N.C. Department of Justice 
P.O. Box 629 
Raleigh, N.C. 27602 
(919) 716-6900  



APPENDIX TO EMERGENCY APPLICATION FOR STAY 

  

OPINION, Match, 2000s cic vs oe vt tine ovine sa Laas hn ufo mab dt sia A ea wn App.1 

Notice of Appeal to the Supreme Court of the 

United States, Marchid0, 2000, ....... cote ss isin sa aaive sss sania ens vate App. 2 

Defendants’ Motion for a Stay (Rule 62), 

March 10,2000 (WithowtalaCHINentY . . .. sc veidivevnronne te dionon vas snsiesss App. 3 

Affidavit of Gary O. Bartlett, March 9, 2000 . .... iv coe ve sense vad aves dala amine App. 4 

Trial Testimony of Roy A. Cooper, III (Nov. 30, 1999) (pp. 334-358, 

376-384, 387-389, 403-414, 424-430, 436-437) ooo iiii ean App. 5 

Trial Testimony of W. Edwin McMahan (Dec. 1, 1999) (pp. 462-479) ............... App. 6 

Trial Exhibit No. 400, Republican Victories in Forsyth County Precincts 

ADutnEIRSIriCt 12 0 ig ss EN, on oh hae a ning a Aa vn nw App. 7 

Trial Exhibit No. 401, Republican Victories in Guilford County Precincts 

ADUNEIDISIGCE ID... oh i os stesso tye sins a en sound a App. 8 

Trial Exhibit No. 402, Republican Victories in Mecklenburg/Cabarrus County 

Precincts ADMINS DIStrict 12. o.oo ei Se oe oss cin Gd Bhi App. 9 

Trial Exhibit No. 433, Percent Democrat in Split Counties by County 

for 1997 Congressional Districting Plan (Pp. 1-2) iv «ves evn vaisivinn inns «vin App. 10 

Trial Exhibit No. 434, Percent Democrat in Split Municipalities and 

Census Designated Places by City or Town for 1997 Plan (pp. 1-2) ........... App. 11 

 



   



      

MAR. 16.2880 4:34PM SUPREME COURT OF US MO. 311 P.,       

(ORDER LIST: 529 U.S.) 

THURSDAY, MARCH 16, 2000 

ORDER IN PENDING CASES 

99A750) HUNT, COV. OF NC, ET AL. V. CROMARTIE, MARTIN, ET AL. 

) 
99A757) SMALLWOOD, ALFRED, ET AL. V. CROMARTIE, MARTIN, ET AL. 

The applications for stay of the judgment 

of the United States District Court for the Eastern 

District of North Carolina, case No. 4:96-CV-104-~B0(3), 

entered March 8, 2000, presented to The Chief Justice 

and by him referred to the Court are granted pending the 

timely docketing of the appeals in this Court. Should 

the jurisdictional statements be timely filed, this 

order shall remain in effect pending this Court’s action 

on the appeals. If the appeals are dismissed, or the 

judgment affirmed, this order shall terminate 

automatically. In the event jurisdiction is noted or 

postponed, this order will remain in effect pending the 

sending down of the judgment of this Court. 

 



   



» i » » APPENDIX 2 

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF NORTH CAROLINA 

EASTERN DIVISION 

  

Civil Action No. 4-96-CV-104-BO(3) 

MARTIN CROMARTIE, et al., 

Plaintiffs, 

V. 

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

Defendants. 

N
e
?
 

N
a
f
 

N
a
 

N
a
 

N
e
 

N
a
 

N
e
 

N
a
 

N
a
 

N
a
 

N
o
 

NOTICE OF APPEAL TO THE SUPREME COURT 
OF THE UNITED STATES 

Notice is hereby given that all defendants appeal to the Supreme Court of the United States 

from the March 7, 2000 Opinion, order, and injunction and the oral denial at trial of defendants’ 

motion for summary judgment on the grounds of claim preclusion and virtual representation by the 

three-judge district court. 

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

Respectfully submitted, this the 10th day of March, 2000. 

MICHAEL F. EASLEY 
ATTORNEY GENERAL 

yr   
  

Edwin M. Speas, Jr. 

Chief Deputy Attorney General 
N.C. State Bar No. 4112 

 



  

  

o0 

Tiare B. Smiley 

Special Deputy Attorney General 
N. C. State Bar No. 7119 

Norma S. Harrell 

Special Deputy Attorney General 
N.C. State Bar No. 6654 

  

N.C. Department of Justice 
P.O. Box 629 
Raleigh, N.C. 27602 
(919) 716-6900 

 



CERTIFICATE OF SERVICE 

  

This is to certify that I have this day served a copy of the foregoing Notice of Appeal in the 

above captioned case upon all parties by depositing these documents in the United States mail, first 

class mail, postage prepaid addressed as follows: 

Robinson O. Everett 

Suite 300 First Union Natl. Bank Bldg. 
301 W. Main Street 

P.O. Box 586 

Durham, NC 27702 

ATTORNEY FOR PLAINTIFFS 

Adam Stein 

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

Suite 2 

312 W. Franklin Street 
Chapel Hill, NC 27516 

Todd A. Cox 

NAACP Legal Defense & Educational Fund, Inc. 
1444 I Street NW, 10" Floor 
Washington, DC 20005 

ATTORNEYS FOR DEFENDANT-INTERVENORS 

3 nil 

This the 10th day of March, 2000. 

  

fare B. Smiley 
Special Deputy Attorney General 

 



   



» a Ai APPENDIX 3 

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF NORTH CAROLINA 

EASTERN DIVISION 

  

Civil Action No. 4-96-CV-104-BO(3) 

MARTIN CROMARTIE, et al., 

Plaintiffs, 

V. 

DEFENDANTS’ MOTION FOR A STAY 
(Rule 62) 

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

Defendants. 

N
r
 

N
a
 

N
a
 

N
a
 

N
a
 

N
a
 

N
a
 

N
a
 

N
e
 

N
e
 

N
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N
C
 

Defendants, pursuant to Rule 62 of the Federal Rules of Civil Procedure, respectfully request 

the Court to stay its March 7, 2000 Opinion, order, and injunction so that the congressional elections 

process which has already begun may continue as scheduled and so that irreparable injuries to the 

State, to the public interest, to the voters and to the candidates may be avoided. Because of the 

urgency of this matter, defendants respectfully request the Court to act on this motion immediately. 

In support of this motion, defendants rely on their Emergency Application For Stay, which 

is being simultaneously filed with the United States Supreme Court because of the urgency with 

which this matter must be resolved in order to avoid delay and disruption of the State’s congressional 

primaries. A copy of that Emergency Application is attached hereto. Especially pertinent to this 

motion are the numerous cases cited in Emergency Application in which courts have permitted 

elections to go forward even after districting plans have been invalidated. 

 



Respectfully submitted, this the 10th day of March, 2000. 

  

MICHAEL F. EASLEY 

ATTORNEY GENERAL 

Byr~ 
Edwin M. Speas, Jr. 

Chief Deputy Attorney General 

N.C. State Bar No. 4112 

g / 

iare B. Smiley i 
Special Deputy Attorney eral 

N. C. State Bar No. 7119 

Yio Holl 
Norma S. Harrell 

Special Deputy Attorney General 

N.C. State Bar No. 6654 

  

  

  

N.C. Department of Justice 

P.O. Box 629 

Raleigh, N.C. 27602 

(919) 716-6900 

 



CERTIFICATE OF SERVICE 

This is to certify that I have this day served a copy of the foregoing Defendants’ Motion for 

a Stay in the above captioned case upon all parties by fax and by depositing these documents in the 

United States mail, first class mail, postage prepaid addressed as follows: 

Robinson O. Everett 

Suite 300 First Union Natl. Bank Bldg. 

301 W. Main Street 

P.O. Box 586 

Durham, NC 27702 

ATTORNEY FOR PLAINTIFFS 

Adam Stein 

Ferguson, Stein, Wallas, Adkins, 

Gresham & Sumter, P.A. 

Suite 2 

312 W. Franklin Street 

Chapel Hill, NC 27516 

Todd A. Cox 

NAACP Legal Defense & Educational Fund, Inc. 
1444 1 Street NW, 10" Floor 

Washington, DC 20005 

ATTORNEYS FOR DEFENDANT-INTERVENORS 

eu 3 Bp log 
Tiare B. Smiley el 

Special Deputy Attorney al 

This the 10th day of March, 2000. 

  

 



   



  

» 3 » S$ APPENDIX 4 

  

  

No. 

  

In the 

Supreme Court of the United States 
October Term, 1999 

  

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

Petitioners, 

V. 

MARTIN CROMARTIE, et al., 

Respondents. 

  

AFFIDAVIT OF GARY O. BARTLETT 

  

Gary O. Bartlett, under penalty of perjury, deposes and says: 

FE I am the Executive Secretary-Directorof the North Carolina State Board of Elections 

and have served in that capacity since August 3, 1993. I am also the Chief Elections Officer for the 

State of North Carolina under the National Voter Registration Act (Public Law 103-31). My 

responsibilitiesinclude election and campaign reporting for the State. The State Board of Elections 

has supervisory authority over the 100 county boards of elections and fifty-three municipal boards 

of elections. 

2 By the middle of March in a presidential election year, significant preparations have 

already been made for the primary. This year is no different. This affidavit details the steps leading 

 



2 

up to the May 2, 2000 primary that have already been taken and which still must be taken. The 

bottom line is that the Court’s injunction has come so late it is impossible for the legislature to meet 

in a special session, choose a redistricting plan other than the 1997 plan, have it approved by the 

Court and the U.S. Department of Justice, and meet the state and federal requirements for the 

conduct of the May 2, 2000 primary. Indeed, there is only a very narrow window in which this 

Court could enter a stay and preserve the May 2 primary date. Without a stay by March 16, 2000, 

the election officials throughout North Carolina will be required to proceed as if the congressional 

primaries will be held on a separate date. North Carolina will again experience disruption to its 

election cycle and a significant reduction in voter turnout. 

3. The filing period for all candidates seeking party primary nominations for federal, 

state and county offices opened at 12:00 noon on January 3, 2000, and closed at 12:00 noon on 

February 7, 2000. The primary is scheduled for May 2, 2000. 

4. The year 2000 is a major election year, in which the following offices will be filled: 

President, U.S. Congress, Governor, Lieutenant Governor, Secretary of State, Auditor, Treasurer, 

Superintendent of Public Instruction, Attorney General, Commissioner of Agriculture, 

Commissioner of Labor, and Commissioner of Insurance. In addition, there will be legislative, 

judicial, and numerous county office primaries. 

S. This major election year includes an unusually large number of primaries. On 

February 9, 2000, the State Board of Elections certified the name, address, and party affiliations of 

all the candidates who filed to run for office in these elections. Thirteen candidates filed for 

governor, and all are in contested primaries. Forty-three candidates filed for the twelve federal  



  

3 

congressional seats. Contested primaries involving sixteen candidates will be held in five of the 

twelve congressional districts. Thirty-four candidates are contending for the Council of State offices. 

Of those, thirty-one are involved in a primary race. Fifty-five candidates for judicial offices are 

involved in contested primaries. 

6. Because of the number of contested primaries, especially in the hotly contested 

gubernatorial races, voter participation will be at its zenith for this May primary. 

7. Voters are accustomed to a primary on the first Tuesday after the first Monday in May 

and a general election on the first Tuesday after the first Monday in November in an election year. 

North Carolina has almost 5,000,000 registered voters. Introducing an additional election will 

cause voter confusion and reduce voter turnout. Past experience by the State Board of Elections has 

demonstrated that separate special primaries or general elections normally attract much smaller voter 

turnouts than regularly-scheduledelections or primaries in which voters cast ballots simultaneously 

for candidates for all offices up for election that year. The State was required to hold a special 

congressional election on September 15, 1998, (with no allowance for a run-off or second primary) 

as a result of the three-judge court’s summary judgment and injunction entered April 3, 1998 in this 

case. Turnout of registered voters for that election was only 8%, significantly below normal 

participation for a primary. Most primaries produce a turnout of 20-25% of voters. In previous hotly 

contested primaries such as this, turnout has been as high as 39.59%. It is anticipated the primary 

this May will attract more voters than normal because of the number of seriously contested statewide 

races. 

 



  

4 

8. Historically, North Carolina has held its primaries in the spring, and only once, in 

1976, voluntarily scheduled a primary as late as August. That experiment lasted for the one primary 

election and the legislature immediately returned to a spring primary schedule. Although a fall 

primary has been debated on occasion, it has never been adopted by the legislature since 1976. 

9, The State Board and county boards of elections would incur significant costs if the 

impending primary elections were disrupted, new congressional districts adopted, and a separate 

primary election required. A statewide election, whether primary or general, costs approximately 

$5,300,000. This includes the costs of printing ballots, paying for polling places, paying precinct 

officials, and programming election machines. There are approximately 2,650 precincts statewide, 

each of which must be staffed with a minimum of three people each election day. 

10. The State Board of Elections designs and prints paper ballots for elections for U. S. 

President, United States House of Representatives, and other state offices. It also approves the 

design and lay-out of ballots used by county boards of elections. The State Board has ballots printed 

for those counties that still vote by paper ballot and other counties that use a paper ballot for 

absentee, provisional, or curbside voting. Federal and State elections are printed on the same ballot. 

11. Counties that use voting machines also submit for approval the designs and lay-outs 

of the candidates names as they appear on the machines. Programming and testing voting machines 

is accomplished during the same period when paper ballots are being prepared and printed. Some 

counties program their machines themselves, others contract for the service. 

12. The State Board and county boards of elections usually have about six weeks from 

the close of the filing period to the beginning of the absentee voting period to complete the process 

 



  

5 

of designing the ballots, programming election machines, choosing ballot colors (the ballots for the 

respective political parties in the primary are printed on different colored paper), correcting and 

returning proofs, printing ballots, and distributing the ballots. State law requires that persons entitled 

to vote by absentee ballot must be furnished with regular official ballots. Absentee voting for the 

May 2, 2000 primary is scheduled to begin on March 18, 2000. The State Board has the authority 

to reduce the normal fifty days to forty-five in a primary and exercised that authority this afternoon 

in order to afford an opportunity to request a stay. 

13. Ifthe States required to develop a new congressional plan and new election schedule 

at this late date, some candidates may not represent the same areas in which they have been 

fundraising and campaigning. Time, effort and money spent campaigning in areas removed from 

current districts will be lost. Candidates may not wish to run in a redrawn district if they no longer 

live in the district or if its constituency changes substantially. New candidates would be at a 

competitive disadvantage under a truncated election schedule. Candidates will suffer from reduced 

time to familiarize themselves with their districts and voters will have less time to learn about the 

candidates. 

14. Provisions for absentee voting are an important part of the election process. Failure 

to provide adequate time for absentee voting could deprive substantial numbers of voters, especially 

persons in military service, elderly persons in nursing homes, and other persons who are 

handicapped, an opportunity to vote. North Carolina law ordinarily requires a 50-day period for the 

absentee balloting process, but does allow adjustment to 45 days for a primary. This period 

accommodates the time required for voting by citizens assigned to duty out-of-state or overseas by 

 



  

6 

Department of Defense agencies. There is no way to accommodate new districts and meet absentee 

voting requirements by May 2. Absentee balloting must begin on March 18, 2000, under North 

Carolina law. 

15. Should the congressional primary be delayed, boards of elections will be required to 

expend funds not currently in their budgets for the costs of notifying voters of the changes, 

additional advertising, and special primary and legal notices. Additional staff may be necessary if 

reassignment of voters must be done on a shortened schedule. Some counties have only one 

individual working at their boards of elections. The hiring of additional labor and/or the 

compensation for overtime may be required to meet these needs, placing further unforeseen demands 

on the budgets of boards of elections and in turn driving up the direct costs to the public. Finally, 

additional personnel expenses for workers at the polling places will be the most significant cost of 

conducting a separate primary. 

16. Precinct judges have been appointed and precinct assistants selected. Many precinct 

officials plan their work and vacation schedules based on the calendar of elections established each 

election year. It will be difficult to locate additional precinct assistants for another election, 

particularly since many individuals are unavailable because of vacations planned during the summer 

months. Recruitment of additional precinct assistants will require an inordinate amount of staff 

time. 

17. Facilities such as church fellowship halls, fire stations, public libraries, and 

recreational facilities already have been reserved for polling places based on the established election 

 



  

7 

calendar. As summer approaches, the timing of a separate congressional election would conflict 

with activities already planned for some of these polling places. 

18. A change in congressional election districts at this late hour would have a negative 

impact on voters, boards of elections and precinct officials; it would result in a waste of tax dollars 

and be unfair to the candidates who have been campaigning steadily. Preventing the State’s 

congressional elections from going forward as scheduled at this late date will significantly burden 

elections officials and the elections process in North Carolina. It will not be possible to hold the 

primaries as scheduled on May 2, 2000, if new congressional districts must be adopted and a new 

candidate filing period allowed. The greatest cost of all to the election process will be the chilling 

effect on voter participation. 

19. In order for the May 2, 2000 primary to proceed without disruption, a stay of the 

lower court’s ruling must be entered by March 16, 2000. After that date the State will have to 

proceed as if it must delete the congressional races from the May 2, 2000 primary, and hold a 

separate primary for those races. Printing of absentee ballots will have to begin immediately, and 

the other steps required for the primary may not be delayed past that date. 

20. I am a registered voter, over the age of eighteen and am competent to make this 

declaration stating facts of which I have personal knowledge. 

 



8 

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is 

true and correct. 

Executed this the gq day of March, 2000. 

Le On LT 
Gary O7 Bartlett 
  

 



   



  
  

  

  3 °0:; 
A. WELL, I READ THE OPINION IN SHAW VERSUS HUNT, AND THE 

FIRST THING THAT WE NEEDED TO DO WAS TO CURE THE 

CONSTITUTIONAL DEFECTS IN THE 1992 PLAN. SO THAT WAS THE 

FIRST CONSIDERATION. AND I THINK IN GENERAL THAT MEANT 

MAKING THE PLAN LOOK A LOT NICER; AND SECONDLY, TO MAKE 

CERTAIN THAT RACE WAS NOT THE PREDOMINATE FACTOR IN 

DRAWING THE DISTRICTS. AND IN MAKING THE DISTRICTS LOOK A 

LOT NICER, WE NEEDED TO MAKE SURE WE DIDN'T SPLIT 

PRECINCTS, TRY TO SPLIT FEWER COUNTIES, MAKE SURE YOU 

DIDN'T HAVE ONE COUNTY WITH THREE MEMBERS OF CONGRESS. 

MAKING SURE YOU DIDN’T HAVE LONG NARROW CORRIDORS WHERE 

YOU DIDN'T HAVE ANY PEOPLE. MAKING SURE YOU DIDN’T HAVE 

THE DOUBLE-CROSS OVERS AND CROSS OVERS AND POINT 

CONTIGUITY AND ALL OF THESE CONCERNS THAT WERE POINTED OUT 

BY THE COURT. 

Q. BEFORE YOU GO ONTO THE SECOND GOAL, WAS THERE ANY 

FEELING ON YOUR PART OR THE LEADERSHIP OF THE SENATE NOT 

TO CREATE AND DRAW A CONSTITUTIONAL PLAN? 

A. NO. WE WANTED TO MAKE SURE THAT THE PLAN WAS 

CONSTITUTIONAL. 

WOULD YOU PREFER NOT TO BE BACK IN COURT AGAIN? 

MOST DEFINITELY. 

WHAT WAS THE OTHER ONE? 

THE OTHER CONCERN WAS WE WANTED TO MAKE SURE THAT THE 

LEGISLATURE DREW THIS PLAN AND NOT THE FEDERAL COURTS. 

     



  
  

  

  

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WITH ALL DUE RESPECT TO THE FEDERAL COURTS? 

WITH ALL DUE RESPECT TO THE FEDERAL COURTS, YES. 

BUT? 

BUT WE FELT IT WAS OUR RESPONSIBILITY AND WE DIDN'T 

WANT TO DELEGATE THAT AUTHORITY. WE KNEW WE HAD A REAL 

PROBLEM WITH THAT AND THE SENATE WAS MAJORITY DEMOCRATIC 

AND THE HOUSE MAJORITY REPUBLICAN AND WE KNEW IF WE HAD A 

PLAN THAT WAS TOO PARTISAN ONE WAY OR THE OTHER THAT YOU 

WOULD NEVER GET ENOUGH VOTES IN THE CHAMBER THAT WAS 

GETTING THE SHORT END OF THE STICK. 

Q. IF I MIGHT INTERRUPT YOU FOR A MOMENT. IN 1996, WHAT 

OCCURRED WITH RESPECT TO THE INCUMBENTS, THE CONGRESSIONAL 

DELEGATION FOR NORTH CAROLINA? 

A. WITH THE 1996 ELECTION, THERE WERE WE ENDED -- UP 

WITH A DELEGATION OF SIX DEMOCRATS AND SIX REPUBLICANS 

AFTER THE ELECTION. 

Q. I’M SORRY TO INTERRUPT YOU. 

A. WE KNEW THAT WOULD BE IMPORTANT BECAUSE THE BOTTOM 

LINE WAS TO MAKE SURE WE HAD 26 VOTES IN THE SENATE AND 61 

VOTES IN THE HOUSE TO PASS THE PLAN AND THERE ARE MANY 

CONSIDERATIONS THAT YOU HAVE TO TAKE UNDER CONSIDERATION 

WHEN YOU TRY TO DO THAT. 

Q. AND IN TERMS OF GAINING VOTES, DO YOU LOOK AFTER THE 

INTEREST OF INCUMBENTS? 

A. THAT WAS A CONSIDERATION AND THE REASON IT’S A 

     



  

24 

25 

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CONSIDERATION IS THAT INCUMBENTS ARE IN OFFICE, THEY HAVE 

A CONSTITUENCY. THEY HAVE PEOPLE WHO ADVOCATE FOR THEM IN 

THE GENERAL ASSEMBLY. OFTENTIMES THEY HAVE CLOSE 

RELATIONS WITH LEGISLATORS, AND SO INCUMBENTS CAN AFFECT 

VOTES IN THE GENERAL ASSEMBLY. 

AND ALTHOUGH IT WOULD BE NICE TO DRAW THESE DISTRICTS 

IN A VACCUUM AND TO MAKE THEM LOOK NICE AND TO COMPLETELY 

IGNORE PARTISAN POLITICS AND COMPLETELY IGNORE WHO'’S THE 

INCUMBENT, I’D LIKE TO FIND A WAY TO DO THAT. BUT IN 

ORDER TO GET VOTES IN THE GENERAL ASSEMBLY, TO GET A PLAN 

PASSED, YOU CAN'T DO THAT AND YOU HAVE TO TAKE INTO 

CONSIDERATION WHAT INCUMBENTS THINK ABOUT THE PLAN. 

JUDGE BOYLE: LET ME INTERRUPT FOR A SECOND. 

DON’T LOSE YOUR TRAIN OF THOUGHT. AS A BENCHMARK, THE 

CONGRESSIONAL DELEGATION IS NOW SEVEN, FIVE REPUBLICAN IN 

THE 98 ELECTION. IN THE 1996 ELECTION, IT WAS 6/6, EVEN. 

IN THE ‘94 ELECTION, IT WAS 8/4 REPUBLICAN. AND IN THE 

92 ELECTION, IT WAS 4/8, REPUBLICAN, DEMOCRAT; IS THAT 

CORRECT? 

MS. SMILEY: THAT’S HOW I RECALL. PERHAPS 

SENATOR YOU MAY KNOW. 

THE WITNESS: THAT’S RIGHT. 

JUDGE BOYLE: SO SINCE REDISTRICTING IN ‘91, 2 

WITH THE ‘92 PLAN, NORTH CAROLINA HAS GONE 8/4 DEMOCRAT, 

8/4 REPUBLICAN, 6/6 AND NOW 7/5 IN THE FOUR SUCCEEDING 

  

  

 



  

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CONGRESSIONAL ELECTIONS. 

THE WITNESS: YES, SIR. 

JUDGE BOYLE: ALL RIGHT. 

THE WITNESS: AND THAT’S ONE REASON YOU NEVER 

CAN PREDICT. I MEAN, THAT'S ULTIMATELY THESE ELECTIONS 

ARE UP TO THE PEOPLE AND IT’S VERY DIFFICULT TO PREDICT, 

ALTHOUGH WE DID SPEND QUITE A BIT OF TIME LOOKING AT 

ELECTION RESULTS BECAUSE WE KNEW THAT THE PARTISAN 

FAIRNESS OF THE PLAN WOULD BE AN OVERRIDING FACTOR IN 

TRYING TO GET A PLAN WITH A MAJORITY OF VOTES IN BOTH 

CHAMBERS. SO WE HAD TO PAY ATTENTION TO THAT, ALTHOUGH 

YOU CAN NEVER PREDICT EXACTLY. 

BY MS. SMILEY: 

Q. WELL, LOOKING AT THE PARTISAN BALANCE OVER THIS 

DECADE THAT JUDGE BOYLE HAS JUST REFRESHED OUR 

RECOLLECTION WITH, WAS 1996, WAS THAT A WINDOWS 

OPPORTUNITY WHEN YOU DID HAVE THE REDISTRICTING AT THAT 

TIME THERE WAS A BALANCE? 

A. I’M NOT SURE THAT WE COULD HAVE GOTTEN A PLAN THROUGH 

THE GENERAL ASSEMBLY HAD THERE NOT BEEN A 6/6 SPLIT 

BECAUSE EVENTUALLY WE SETTLED ON THAT AS A FAIR 

PROPOSITION. IT WAS A FAIR PROPOSITION TO THE PUBLIC. IT 

WAS FAIR TO THE LEGISLATORS. I THINK YOU HAVE A LOT OF 

DEMOCRATS IN THE SENATE WHO WOULD HAVE WANTED TO DRAW THE 

PLAN TO FAVOR DEMOCRATS AND REPUBLICANS IN THE HOUSE. 

  
  
  

 



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00 0 
1 ONE WANTED TO DRAW THE PLAN TO FAVOR REPUBLICANS AND 

  

2 THIS SITUATION THAT WE HAD ALREADY WITH THE 6/6 SPLIT MADE 

3 IT A VERY CONVENIENT WAY TO HAVE A PLAN THAT WAS FAIR IN A 

4 PARTISAN MANNER. SO REPRESENTATIVE MCMAHAN AND I DECIDED 

5 EARLY ON AND THE LEADERSHIP OF BOTH THE HOUSE AND SENATE 

6 DECIDED EARLY ON WE NEEDED TO STRIVE TOWARD A PLAN THAT 

7 WAS A FAIR 6/6 PARTISAN SPLIT. 

8 NOW, WHAT THAT WAS, AND THE DEFINITION OF THAT WAS 

S SUBJECT OF GREAT DEBATE, BUT WE ENDED UP WITH A PLAN THAT 

10 I THINK WAS FAIR. 

11 Q. ALL RIGHT. NOW, WE WERE TALKING ABOUT THE 

12 ACCOMMODATION OF INCUMBENTS, AND ACCOMMODATING INCUMBENTS 

a3 ALSO MEANT VOTES IN THE LEGISLATURE. AS A GENERAL MATTER, 

14 DO YOU HAVE TO LOOK AT THE INTEREST OF LEGISLATORS? 

15 A. YES, YOU DO. LEGISLATORS LIVE IN CONGRESSIONAL 

16 DISTRICTS. MANY TIMES THEIR CONSTITUENTS HAVE BEEN IN A 

17 CONGRESSIONAL DISTRICT FOR A LONG TIME. THEY HAVE CERTAIN 

18 INTERESTS THAT THEY WANT TO SEE A CONGRESSIONAL DISTRICT 

19 DRAWN A CERTAIN WAY, SO ALMOST EVERY LEGISLATOR IN THE 

20 GENERAL ASSEMBLY HAS AN OPINION, PARTICULARLY IN HIS OR 

21 HER OWN HOME AREA ABOUT HOW A DISTRICT SHOULD BE DRAWN. 

22 Q. AND DO SOMETIMES THE DIFFERENT INTERESTS OF 

23 LEGISLATORS, INCUMBENTS CONFLICT? 

24 A. SOMETIMES THEY DO. 

25 Q. AND DO THEY SOMETIMES CONFLICT WITH THE GOAL OF     
  

 



  

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0 00 
HAVING A 6/6 SPLIT? 

A. YES, THEY DO. 

Q. WOULD THEY SOMETIMES CONFLICT WITH HAVING A PREPLAN 

OR CONSTITUTIONAL PLAN? 

A. MOST DEFINITELY, YES. 

Q. BUT YOU HAVE TO GARNER VOTES? 

A. WE HAD TO PUT ALL OF THIS TOGETHER AND MAKE SURE WE 

MET ALL OF THE TESTS THAT THE COURT LAID OUT FOR US. 

Q. SO YOU MIGHT NOT BE ABLE TO DO SOME ACCOMMODATION IF 

YOU COULD NOT CREATE A PLAN THAT WOULD BE CONSTITUTIONAL? 

A. REPEAT THE QUESTION, SORRY. 

Q. SOME ACCOMMODATION MIGHT NOT BE MADE THINGS THAT 

PEOPLE WANTED? 

A. YES. 

Q. BECAUSE IT MIGHT MAKE THE PLAN VULNERABLE? 

A. YES. THERE WERE REQUESTS MADE THAT I THOUGHT WOULD 

HAVE MADE THE PLAN UNCONSTITUTIONAL AND WE JUST COULDN'T 

DO IT. 

Q. NOW, THE MECHANICS OF THE REDISTRICTING PROCESS 

ITSELF, DID YOU YOURSELF MANIPULATE THE CALCULATIONS? 

A. I DID NOT. I WAS NOT IN THE ROOM AND I WOULD GIVE 

INSTRUCTIONS TO A PERSON WHO NORMALLY WOULD DO THE ACTUAL 

MECHANICAL CALCULATIONS. AND MOST OF THE TIME THAT WAS 

GERRY COHEN. 

Q. WERE YOU IN THE ROOM OR OFTEN ALLOW HIM TO DO HIS 

  

  

 



340 
  
    5 A J mn Ad 

l WORK WHILE YOU WERE NOT THERE? 

  

2 A. OFTEN ALLOWED HIM TO DO HIS WORK WHILE I WAS NOT 

3 THERE, JUST ON GENERAL INSTRUCTIONS, YES. 

4 Q. WHAT WERE THE KIND OF INSTRUCTIONS YOU WOULD GIVE HIM 

5 OR WHAT WAS YOUR WORKING RELATIONSHIP WITH MR. COHEN? 

6 A. GERRY IS MAYBE MORE FAMILIAR WITH MAPS AND PRECINCTS 

7 AND MAKE UP AND DEMOCRATIC PERFORMANCE AND REPUBLICAN 

8 PERFORMANCE THAN ANYBODY IN THE STATE. HE HAS BEEN 

9 WORKING WITH THIS FOR SUCH A LONG TIME. I WOULD GIVE HIM 

10 A GENERAL IDEA OF WHAT I WANTED TO DO. I WOULD SAY MOVE A 

11 CERTAIN COUNTY INTO A CERTAIN DISTRICT OR I WOULD JUST 

12 TALK TO HIM CONCEPTUALLY ABOUT A PROBLEM THAT A LEGISLATOR 

13 WOULD HAVE AND WOULD SAY WE NEED TO DO SOMETHING TO TRY TO 

14 FIX THIS. 

15 Q. WOULD HE EVER COME BACK TO YOU WITH WAYS HE THOUGHT 

16 THAT COULD BE ACCOMMODATED? 

17 A. YES, HE WOULD. 

18 Q. DID YOU WORK WITH OTHER LEGISLATORS? 

1° A. YES, I DID. 

20 Q. AND DID YOU SEE A LOT OF PLANS? 

21 A. YES. WE SAW A LOT OF PLANS. MANY PLANS WERE 

22 SUBMITTED AND PEOPLE HAD A LOT OF DIFFERENT IDEAS ABOUT 

23 WHAT WE OUGHT TO DO. 

24 Q. OKAY. WITH RESPECT TO OTHER LEGISLATORS, HOW DID YOU 

25 HANDLE THE PROCESS OF GETTING THEIR INPUT AND MAKING SURE       

 



  

24 

25 

341 
    

  

  

@® LA 
THAT YOU COULD GET YOUR VOTES? 

A. WELL, I TALKED TO INDIVIDUAL LEGISLATORS. I TOLD 

THEM THAT IF YOU HAVE IDEAS, LET ME KNOW. I DID HAVE 

LEGISLATORS THAT WOULD BRING PLANS INTO THE OFFICE. MANY 

TIMES THEY WOULD DRAW THEIR OWN DISTRICT WITHOUT THINKING 

ABOUT THE OTHER 11 DISTRICTS IN THE STATE AND THAT WOULD 

SOMETIMES CAUSE A PROBLEM BECAUSE EVERYTHING IS 

INTER-RELATED, BUT WE HAD LEGISLATORS WHO WOULD DRAW THEIR 

OWN PLANS AND BRING THEM IN WE WOULD LOOK AT THAT. 

WE HELD A PUBLIC HEARING. WE LET INPUT IN FROM THE 

PUBLIC. WE HAD DISCUSSIONS, SUGGESTIONS FROM THE PUBLIC 

ON WHAT WE OUGHT TO DO. 

JUDGE BOYLE: WHEN YOU SAY "LEGISLATORS," YOU 

ARE TALKING OF MEMBERS OF THE GENERAL ASSEMBLY, NOT 

MEMBERS OF CONGRESS? 

THE WITNESS: BUT MEMBERS OF CONGRESS ALSO GAVE 

US THEIR IDEAS. 

JUDGE BOYLE: THAT’S WHAT IT SOUNDED LIKE. THEY 

WOULD COME IN WITH A DISTRICT OF THEIR OWN, NOT TAKING 

INTO ACCOUNT OTHER DISTRICTS? 

THE WITNESS: THAT’S CORRECT, BUT WE HAD PLANS 

FROM OTHER STATE LEGISLATORS WHO HAD INTERESTS IN THIS 

ISSUE THEY WANT PRESENT US WITH PLANS AS WELL AS MEMBERS 

OF CONGRESS. 

BY MS. SMILEY: 

  

  

 



  

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Q. SO HE MIGHT BE INTERESTED HIMSELF IN POSSIBLY RUNNING 

FOR OFFICE OR HE’S THE INCUMBENT? 

A. YES. 

Q. I WON’T MAKE YOU ELABORATE ON THAT. MY NEXT 

QUESTION, WHICH JUDGE BOYLE HAS ANTICIPATED, IS COULD YOU 

DESCRIBE AS WELL AS YOU CAN REMEMBER THE INPUT THAT YOU 

HAD IN YOUR CONSULTATION WITH CONGRESS PERSONS OR THEIR 

AIDES? 

A. I THINK THAT I TALKED TO EVERY MEMBER OF CONGRESS OR 

HIS OR HER REPRESENTATIVE EXCEPT FOR CONGRESSMAN TAYLOR IN 

THIS PROCESS. 

Q. AND IS HIS DISTRICT REALLY IN PLAY? 

A. HIS DISTRICT IS THE 11TH, THE FAR WEST, AND WE DID 

VERY LITTLE TO THAT DISTRICT AND NO, THAT DISTRICT REALLY 

WAS NOT -- PRETTY MUCH EVERYBODY AGREED THAT WE OUGHT TO 

STRAIGHTEN UP THE LINE A LITTLE BIT TO MAKE IT LOOK A 

LITTLE NICER BUT IT WAS NOT SIGNIFICANTLY DEBATED. SO I 

DIDN’/T REALLY HAVE OCCASION TO TALK TO HIM OR ANY OF HIS 

STAFF AND HE DIDN’T EVER CONTACT ME. BUT I DID HAVE 

CONTACT WITH ALL OF THE OTHERS, I BELIEVE. 

Q. AND TO THE EXTENT THAT YOU CAN REMEMBER THE KIND OF 

CONTACT THAT YOU HAD OR WHEN IN THE PROCESS? 

A. TALKED ON THE TELEPHONE, WE HAD ONE MEETING IN 

RALEIGH OF DEMOCRATIC MEMBERS OF CONGRESS WHEREIN THEY 

CAME TO RALEIGH AND I PRESENTED THEM WITH SOME IDEAS AND 

  

  

 



  

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THEY PRESENTED ME WITH SOME IDEAS BUT MOST OF IT WAS BY 

PHONE. SOME OF THE MEMBERS OF CONGRESS CAME INDIVIDUALLY 

ON SEPARATE OCCASIONS AND TALKED WITH ME. 

MANY OF THEM, AS THE JUDGE SAID, WERE DRAWING THEIR 

OWN PLANS AND SUBMITTING THEM TO ME. I THINK WHEN WE HAD 

THAT MEETING IS WHEN I SHOWED THEM SOME OF MY IDEAS AND SO 

THEY STARTED WORKING OFF OF THAT AND GIVING ME IDEAS OR 

SUGGESTIONS. I THINK THE GENERAL IDEA WAS MANY OF THEM 

WANTED TO KEEP A LOT OF THE CONSTITUENTS THAT THEY ALREADY 

HAD BECAUSE THEY HAD A LOT OF TIME INVESTED IN TALKING 

WITH THEM AND REPRESENTING THEM AND MANY OF THEM WANTED TO 

DO THAT. 

Q. AND AT THAT POINT IN TIME WHEN YOU STARTED PRESENTING 

PLANS OR IDEAS, AT LEAST TO THE DELEGATION, DO YOU 

REMEMBER WHAT THE MAIN OUTLINE OF THE PLAN OR WHAT YOU 

SHOWED THEM? 

A. IT WAS PROBABLY PRETTY CLOSE TO WHAT I PRESENTED TO 

THE SENATE COMMITTEE. I THINK IT WAS IN FEBRUARY 

SOMETIME. 

Q. BEFORE WE GO THERE THEN, LET’S STEP BACK A LITTLE. 

ALL RIGHT. YOU WERE TALKING TO LEGISLATORS AN CONGRESS 

PEOPLE. DID YOU BEGIN TALKING WITH REPRESENTATIVE 

MCMAHAN? 

A. YES. 

Q. COULD YOU SAY WHEN AND KIND OF GIVE US A LITTLE 

  

  

 



  
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25 

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HISTORY OF YOUR DISCUSSIONS WITH HIM IN THE EARLY TIME 

BEFORE YOU STARTED NEGOTIATING YOUR PLANS? 

A. VERY EARLY IN THE PROCESS REPRESENTATIVE MCMAHAN AND 

I AGREED THAT WE WOULD KEEP AN OPEN DIALOGUE AND THAT WE 

WOULD TRY TO COME UP WITH A PLAN TO PRESENT TO BOTH SIDES 

THAT WE BOTH AGREED ON. SO WE BEGAN DISCUSSING 

PRINCIPLES. WE TALKED ABOUT THE 6/6 SPLIT AND WANTING TO 

STICK TO THAT PRINCIPLE. WE TALKED ABOUT MAKING SURE THAT 

WE KEPT OUR LINES OF COMMUNICATION OPEN AND WE BEGAN THE 

PROCESS OF PRESENTING PLANS BACK AND FORTH TO EACH OTHER 

FOR EACH OTHER’S CONSIDERATION. 

Q. WAS THERE INITIAL ISSUE BASED ON THE PLAN THAT THE 

REPUBLICANS HAD PRESENTED IN THE SUMMER OF 1996; DO YOU 

RECALL WHERE THE 12TH DISTRICT WAS IN THAT PLAN? 

A. IS THIS THE PLAN THAT THE 12TH DISTRICT RAN FROM 

MECKLENBURG DOWN ACROSS THE SOUTH EAST TO ROBESON COUNTY? 

Q. YES. AND IS THAT AN ISSUE YOU TALKED WITH 

REPRESENTATIVE MCMAHAN EARLY ON ABOUT THAT? 

A. I TOLD HIM THAT WAS JUST COMPLETELY UNACCEPTABLE AND 

THAT PLAN WOULD NEVER PASS THE DEMOCRATIC SENATE. 

Q. WAS THAT EARLY IN THE PROCESS? 

A. YES, THAT WAS FAIRLY EARLY IN THE PROCESS. 

Q. WHY? 

A. FOR ONE THING, PROBABLY MOST IMPORTANTLY, THERE WOULD 

BE MEMBERS OF THE SENATE THAT WOULD THINK THE PLAN WAS 

  

  

 



345 
      oo 00 

3 VERY MUCH UNFAIR ON A PARTISAN BASIS, BECAUSE IT WOULD 

  

2 | HAVE RESULTED IN AN 8 TO 4 REPUBLICAN PARTISAN SPLIT. AND 

3 | I SUSPECT THAT WAS THE MOTIVATION BEHIND IT BEING 

4 | PRESENTED -- 

5 | Q. DID IT DISRUPT A GOOD NUMBER OF DEMOCRATIC DISTRICTS 

6 | IN THE SOUTHERN PART OF THE STATE, SOUTH CENTRAL PART OF 

7 | THE STATE? 

gs | A. ¥ES ITDID. 

9 | Q. OKAY. SO THAT WAS ONE OF THE EARLY ISSUES YOU DID 

10 | DISCUSS WITH REPRESENTATIVE MCMAHAN? 

11 | A. THAT'S CORRECT. 

12 | ©. HOW DID YOU ALL RESOLVE THAT AT THAT TIME OR HOW DID 

13 | YOU LEAVE IT, WHEN YOU SAID THAT WAS NO GO? 

14 | A. HE PRETTY MUCH GAVE UP ON THAT PRETTY EARLY. THERE 

15 | WERE OTHER MEMBERS OF THE LEGISLATURE WHO WANTED TO DO 

16 | THAT FOR WHAT I BELIEVE TO BE PARTISAN REASONS. HE 

17 | UNDERSTOOD -- HE WAS BEING PRACTICAL, AS I WAS. THERE 

18 | WERE PLANS OUT THERE THAT WOULD HAVE RESULTED IN A STRONG 

19 | DEMOCRATIC LEANING MAP, AND I KNEW EARLY THAT THIS WAS NOT 

20 | GOING TO BE A PRACTICAL SOLUTION TO THE PROBLEM SO WE BOTH 

21 | UNDERSTOOD THAT AND HE GAVE UP ON THAT PRETTY EARLY IN THE 

22 | PROCESS. 

23 JUDGE THORNBURG: I THINK THIS IS A GOOD POINT 

24 | TO BREAK AND, SENATOR, WE WILL START BACK AT 2 O'CLOCK. 

25 (LUNCH RECESS TAKEN.)       

 



  

  
  

  

  

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(WITNESS, ROY COOPER, RETURNS TO THE WITNESS STAND). 

JUDGE THORNBURG: YOU MAY PROCEED. 

BY MS. SMILEY: 

Q. SENATOR, MOVING FARTHER INTO THE WORLD OF 

REDISTRICTING, COULD YOU TELL US A LITTLE BIT ABOUT THE 

DATA BASES IN THE COMPUTER SYSTEM AND HOW YOU USED THEM 

AND, OBVIOUSLY, NOT A TECHNICAL ANSWER FROM YOU, BUT -- 

A. THERE WAS DATA IN THE COMPUTER FROM 1988 WHEN WE HAD 

REDISTRICTED FOR 1999 -- EXCUSE ME, FOR THE 1990 CENSUS. 

THERE WAS DATA FROM ELECTION RESULTS IN 1998 THAT WENT 

INTO THE COMPUTER IN ADDITION TO OTHER DEMOGRAPHIC 

INFORMATION. WE USED THAT SAME INFORMATION THAT WAS FROM 

THE 1990 CENSUS FOR REDRAWING THESE MAPS FOR 1997. THERE 

WERE ELECTION RESULTS. I THINK THERE WAS A LIEUTENANT 

GOVERNORS RACE, A SUPREME COURT OR SUPERIOR COURT JUDGES 

RACE AND A U. S. SENATE RACE THAT WAS FROM 1988 THAT WAS 

IN THE COMPUTER. 

Q. WHAT INFORMATION DID YOU FIND MOST USEFUL IN LOOKING 

AT DISTRICT 12? 

A. THE ELECTION RESULTS WERE THE PREDOMINATE NUMBER THAT 

WE LOOKED AT IN ALL OF THE DISTRICTS. WE EVEN HAD SOME 

SUPPLEMENTAL ELECTION RESULTS THAT WE USED, BUT WITH THIS 

OVERRIDING ISSUE CONCERNING 6/6 PARTISAN SPLIT, THE 

ELECTION RESULTS WERE THE MOST PREDOMINATE NUMBERS. IN 

FACT, WHEN WE WERE USING THE MAPS, THAT WAS GENERALLY THE 

  

  

 



    

  

  BA J 00 
NUMBER THAT WAS UP ON THE SCREEN. 

Q. DO YOU RECALL WHICH ELECTION YOU FELT GAVE THE BEST 

INDICATION OF DEMOCRATIC\REPUBLICAN? 

A. THAT’S DIFFICULT TO SAY. PROBABLY THAT JUDGE'’S RACE 

GAVE THE BEST GENERIC INDICATION, BUT STILL THAT WAS OLDER 

DATA, THAT WAS 1988 DATA. AND ALTHOUGH IT WAS SOMEWHAT 

USEFUL, IT WASN'T THE PRIMARY ELECTION INFORMATION THAT WE 

USED. 

Q. WHAT WAS THE PRIMARY? 

A. THE PRIMARY INFORMATION WAS ELECTION RESULTS THAT WE 

RECEIVED FROM AN ORGANIZATION CALLED THE NATIONAL 

COMMITTEE FOR AN EFFECTIVE CONGRESS, WHICH WAS AN 

ORGANIZATION THAT I THINK WAS PRIMARILY FUNDED BY THE 

NATIONAL DEMOCRATIC PARTY. IT’S PRIMARY FUNCTION WAS TO 

HELP ELECT DEMOCRATIC MEMBERS OF CONGRESS ACROSS THE 

NATION AND TO SPECIFICALLY HELP WITH STATES THAT WERE 

DOING CONGRESSIONAL REDISTRICTING. 

Q. AND HOW WOULD YOU GO ABOUT GETTING THAT INFORMATION 

FROM THEM? 

A. WE HAD A COMPUTER LINK UP WITH OUR GENERAL ASSEMBLY 

MAP MAKERS WITH THE COMMITTEE IN WASHINGTON AND WHENEVER 

THERE WAS A MAP THAT WE WANTED TO LOOK AT THEIR ANALYSIS 

OF THE MAP WE WOULD SEND IT UP ELECTRONICALLY AND THEY 

WOULD SEND BACK INFORMATION TO US, GIVING US ELECTION 

RESULTS AND TELLING US WHAT THE DEMOCRATIC PERFORMANCE OF 

     



  
  

  

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THE DISTRICT WOULD BE. 

Q. AND WAS THAT DATA MORE CURRENT THAN WHAT YOU HAD? 

A. YES, IT TOOK INTO ACCOUNT SEVERAL ELECTIONS FROM 1990 

TO 1996 AND THE STATE COMPUTER DATA BASE ONLY HAD THE 1988 

ELECTION RESULTS. 

Q. AND WAS THERE A PARTICULAR COLUMN THAT YOU USED ON 

THE NCEC DATA? 

A. THERE WAS A COLUMN THAT WAS AN INCLUSIVE CUMULATIVE 

PERFORMANCE NUMBER THAT THEY CAME UP WITH TAKING INTO 

ACCOUNT ALL OF THESE ELECTIONS, AND THEY CALLED IT A 

DEMOCRATIC PERFORMANCE NUMBER. SO, FOR EXAMPLE, IF YOU 

HAD A 55 PERCENT DEMOCRATIC PERFORMANCE, THEN THAT WOULD 

BE VERY GOOD. BELOW 50 WOULD BE OF CONCERN. 

Q. ALL RIGHT. AND WAS THIS DATA AVAILABLE FOR THE 

HOUSE? 

A. THIS WAS DATA THAT WE WERE USING THAT THE COMMITTEE 

TOLD US TO KEEP CONFIDENTIAL. IT WAS THEIR DATA, THEY 

WERE LETTING US USE IT. SO AS FAR AS I KNOW, THE HOUSE 

REPUBLICANS DID NOT HAVE ACCESS TO THIS DATA. THEY MAY 

HAVE HAD THEIR OWN ELECTION DATA THAT THEY WERE USING. 

MS. SMILEY: IF I MIGHT APPROACH THE WITNESS. 

JUDGE THORNBURG: YES. 

Q. I’LL SHOW YOU PLAINTIFFS’ EXHIBIT 206. IS THAT AN 

EXAMPLE OF THE NCEC DATA? 

A. YES, IT IS. 

     



349 
    

  

00 00 
l Q. COULD YOU POINT OUT ON THAT EXHIBIT WHERE THE 

  

2 DEMOCRATIC PERFORMANCE COLUMN IS? 

3 A. IT’S THE FOURTH COLUMN -- ACTUALLY, THE FIFTH COLUMN 

4 FROM THE LEFT, THE FIRST PLACE, THE SECOND COLUMN IS THE 

5 POPULATION, THE THIRD COLUMN IS BLACK PERCENTAGE, THE 

6 FOURTH IS BLACK VOTING AGE POPULATION, THE FIFTH 

7 DEMOCRATIC PERFORMANCE AND IT GOES THROUGH WITH THE ‘96 

8 SENATE, ’/96 PRESIDENT, ‘88 PRESIDENT, ET CETERA. 

9 Q. IS THAT DEMOCRATIC PERFORMANCE, IS THAT THE 

10 CUMULATIVE INFORMATION THAT YOU WERE MOST INTERESTED IN? 

1 A. YES. 

12 Q. NOW, IN TERMS OF DEVELOPING THE SENATE PLAN, COULD 

13 YOU TELL US SOMETHING ABOUT WHAT YOU WERE GOING THROUGH 

14 AND WHAT YOU WERE DOING AND THINKING ABOUT IN DEVELOPING 

15 THE PLAN THAT THE SENATE ULTIMATELY PUBLISHED? 

16 A. WELL, THE PRIMARY CONCERN WAS TO ADDRESS, AS I'VE 

17 TESTIFIED EARLIER, THE CONSTITUTIONAL PROBLEMS THAT WERE 

18 CITED BY THE SUPREME COURT IN SHAW V HUNT, SO THAT TURNED 
  

19 US TO THE 12TH CONGRESSIONAL DISTRICTS BECAUSE THAT 

20 SPECIFICALLY WAS THE DISTRICT THAT WAS UNCONSTITUTIONAL. 

21 THE COURT HAD REAL PROBLEMS WITH THE LONG NARROW CORRIDORS 

22 WITHOUT PEOPLE, SPLITTING OF PRECINCTS, POINT CONTIGUITY, 

23 CROSSOVERS, DOUBLE-CROSSOVERS. 

24 WE SET OUT TO ELIMINATE ALL OF THOSE PROBLEMS THAT 

25 THEY HAD SPECIFICALLY POINTED OUT IN THE DECISION. AND     
  

 



  
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25 

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ALSO WE WANTED TO MAKE CERTAIN THAT RACE WAS NOT THE 

PREDOMINATE FACTOR, WHICH IS WHAT THE COURT SAID THAT WE 

COULD NOT DO. 

SO I BEGAN BY TAKING THAT INTO ACCOUNT. WE ALSO HAD 

THE PRACTICAL PROBLEM OF GETTING A PLAN THAT WAS PASSED. 

SO WE TOOK THE CORE OF ALL 12 DISTRICTS, THE GENERAL AREA 

OF ALL 12 DISTRICTS AND BEGAN OUR REDISTRICTING PROCESS. 

AND I WOULD SAY THAT WE PROBABLY MADE THE MOST DRAMATIC 

CHANGES IN BOTH THE 12TH AND THE 1ST DISTRICTS FROM THE 

OLD MAP BECAUSE OF THE PROBLEMS THAT WERE CITED BY THE 

COURT IN SHAW V HUNT. 
  

Q. WHEN YOU TALK ABOUT THE CORE, WHAT DOES A CORE MEAN 

TO YOU? ARE YOU TALKING ABOUT THE AFRICAN AMERICAN CORE? 

A. NO. THE GEOGRAPHIC CORE, THE AREA THE CONSTITUENTS 

THAT WERE IN THE PREVIOUS CONGRESSIONAL DISTRICT. IF YOU 

HAD STARTED FROM SQUARE ONE WITH PEOPLE WHO WERE ALREADY 

IN A CONGRESSIONAL DISTRICT WITH MEMBERS OF CONGRESS THAT 

ALREADY REPRESENTED AREAS. IF YOU STARTED AT SQUARE ONE, 

I JUST DON’T THINK WE COULD HAVE DRAWN A PLAN THAT WOULD 

HAVE PASSED MUSTER. EVEN FROM CENSUS TO CENSUS, MOST OF 

THE TIME THERE'S A GEOGRAPHIC CORE OF THE PREVIOUS 

DISTRICT THAT YOU START WITH, SO THIS WAS REALLY NO 

DIFFERENT THAN COMING FROM ANOTHER CENSUS, EXCEPT FOR THE 

FACT THAT WE HAD THE SUPREME COURT DECISION THAT WE WANTED 

TO ADDRESS AND FEEL WE DID ADDRESS. 

  

  

 



  

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25 

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JUDGE BOYLE: WERE THE CHANGES MORE SUBSTANTIAL 

IN THE FIRST AND THIRD THAN IN THE 12TH, OR CAN YOU SAY? 

THE WITNESS: I THINK THE 12TH WAS PROBABLY AS 

DRAMATIC A CHANGE AS ANY THAT WE DID. IF YOU LOOK AT THE 

MAP STARTING IN GASTONIA WITH A THIN LINE ALL THE WAY TO 

DURHAM, WE CUT THE AREA OF THAT DISTRICT ALMOST IN HALF -- 

EXCUSE ME, THE LENGTH, AND SIGNIFICANTLY BROADENED IT. SO 

I WOULD SAY THE FIRST AND THE 12TH WERE THE TWO MOST 

DRAMATIC CHANGES. THERE WERE SOME CHANGES TO THE THIRD. 

THERE WERE SOME CHANGES TO ALL OF THEM ACTUALLY, BUT I 

THINK THE FIRST AND THE 12TH WERE THE MOST DRAMATIC 

BECAUSE OF THE CONSTITUTIONAL CONCERNS THAT WERE RAISED BY 

THE SUPREME COURT. 

JUDGE BOYLE: WELL, THE FIRST, AS IT PRESENTED 

ITSELF BEFORE THE 97 REDISTRICTING WAS SCATTERED IN A 

SHOTGUN PATTERN ALL OVER THE PLACE. MY MEMORY IS --1I 

DON’T SEE IT THERE, BUT -- IT DIPPED ALL THE WAY DOWN NEW 

HANOVER AND OVER TO CURRITUCK. WAS IT ABOUT THAT BROAD? 

THE WITNESS: IT WASN'T WAY DOWN TO SOUTH 

EASTERN NORTH CAROLINA. 

JUDGE BOYLE: AND STRETCHED UP TO THE VIRGINIA 

LINE TO THE OTHER SIDE OF THE CHOWAN RIVER. 

THE WITNESS: THE SOUTH EASTERN PART OF THE 

CORE, WE LOPPED OFF EVERYTHING IN EASTERN NORTH CAROLINA 

AND TIED IT UP MOST ALL OF THE LINE. 

  

  

 



  

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JUDGE BOYLE: THE FIRST IS MORE COHESIVE NOW 

THAN IT WAS AT THAT TIME. 

THE WITNESS: IT IS NO DOUBT ABOUT IT. 

BY MS. SMILEY: 

Q. WITH RESPECT TO THE 12TH, IS IT ACCURATE TO SAY THAT 

YOU DID AS LITTLE AS POSSIBLE TO THE 12TH? 

A. NO, WE MADE DRAMATIC CHANGES TO THE 12TH. WE TOOK 

FOUR, I GUESS IT WAS FOUR, OF THE COUNTIES THAT WERE IN IT 

BEFORE COMPLETELY OUT OF IT. 

JUDGE BOYLE: WHAT WAS YOUR REASON FOR NOT 

TAKING GUILFORD OUT OF IT AS YOU DID LATER IN THE ‘98 

PLAN? 

THE WITNESS: WELL, YOUR HONOR, WHEN YOU GET 

BACK TO LOOKING AT THE PARTISAN NATURE OF WHAT WE WERE 

TRYING TO DO, IT WAS A FACT THAT THE 12TH DISTRICT WAS 

SURROUNDED BY REPUBLICAN LEANING DISTRICTS. AND WHEN YOU 

LOOKED AT GUILFORD, IT MADE EVERYONE HAPPY FROM A 

POLITICAL STANDPOINT TO TAKE THE DEMOCRATIC LEADING VOTERS 

IN GUILFORD AND PUT THEM IN THE 12TH BECAUSE IT MADE THE 

12TH A MUCH STRONGER DEMOCRATIC DISTRICT AND IT MADE THE 

SIXTH DISTRICT, CONGRESSMAN COBLE'’S DISTRICT, MUCH MORE 

REPUBLICAN, WHICH MADE HIM HAPPY. 

AND IN ADDITION, THERE WAS A GEOGRAPHIC SYMMETRY TO 

PUTTING THE TRIAD ALTOGETHER AND MAKING SURE THAT 

GREENSBORO, WINSTON-SALEM, HIGH POINT, THE TRIAD, WAS ALL 

  

  

 



  

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AJ 00 
COVERED BY THE 12TH. THAT WAS CONNECTED WITH MECKLENBURG 

AND IT WAS, WE THOUGHT, I THINK THE THIRD SHORTEST 

DISTRICT IN THE WHOLE STATE AND WE THOUGHT IT MADE 

GEOGRAPHIC SENSE TO DO THAT. 

BY MS. SMILEY: 

Q. IF WE MAY BACK UP A LITTLE BIT. WE JUMPED A LITTLE 

AHEAD. HAD YOU AND REPRESENTATIVE MCMAHAN HAD ANY 

DISCUSSIONS AND COME TO ANY AGREEMENT AS YOU WERE WORKING 

ON THE SENATE PLAN ABOUT THE 12TH? 

A. WE CAME TO AN AGREEMENT THAT IT WOULD GO FROM 

MECKLENBURG TO A POINT IN THE TRIAD FAIRLY EARLY ON, THAT 

THAT’S WHAT WE WANTED TO DO. ALL THE MEMBERS OF CONGRESS 

WERE OKAY WITH THAT. WE THOUGHT IT MET THE CONSTITUTIONAL 

TEST BECAUSE WE WERE CUTTING OFF LARGE AREAS THAT DIDN'T 

LOOK NICE AND WE KNEW THAT THAT WAS GOING TO BE A 

DEMOCRATIC LEANING DISTRICT. SO WE DECIDED THAT THE ONLY 

ISSUE WAS WHERE WE WENT. 

DID WE GO TO FORSYTH ONLY, DID WE GO TO GUILFORD 

ONLY, DID WE GO TO FORSYTH AND HIGH POINT, DID WE GO TO 

FORSYTH, HIGH POINT AND GREENSBORO? WE CAME TO THE 

CONCLUSION IT MADE SENSE TO CONNECT THEM ALTOGETHER AND IT 

MADE SENSE TO KEEP THE TRIAD TOGETHER AND IT MADE SENSE 

FROM A PARTISAN PERSPECTIVE THAT MADE THE 12TH MORE 

STRONGLY DEMOCRATIC AND MADE THE 6TH MORE STRONGLY 

REPUBLICAN, MAKING EVERYONE HAPPY. GETTING BACK TO MY 

  

  

 



  

24 

25 

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EARLIER STATEMENT, THE PEOPLE THAT DECIDE THESE ELECTIONS, 

BUT WE WERE TRYING TO GET A PLAN THAT PASSED AND THESE 

MEMBERS OF THE LEGISLATURE ARE LOOKING VERY CAREFULLY AT 

ELECTIONS AND ELECTION RESULTS, AND WE WERE TRYING TO GET 

ENOUGH VOTES TO GET THIS PLAN PASSED. 

Q. DO YOU RECALL THAT AT SOME POINT THERE MAY HAVE ONLY 

WENT TO HIGH POINT? 

A. '¥ES. 

Q. AT SOME POINT YOU DECIDED TO GO ALL THE WAY INTO 

GREENSBORO? 

A. iii YES. 

Q. WHEN THAT DECISION WAS MADE -- AND HAVE YOU JUST 

EXPLAINED SOME OF THE REASONS WHY YOU MADE THAT DECISION 

TO GO TO GREENSBORO? 

A. YES. I MEAN, IT JUST MADE SENSE AND IT WAS -- I 

DON’T WANT TO BE AS CAVALIER AS TO SAY "WHY NOT," BUT I 

MEAN, IT DIDN'T MAKE A WHOLE LOT OF SENSE JUST NOT -- JUST 

TO GO INTO FORSYTH OR JUST ONLY TO GO INTO HIGH POINT. 

Q. WHERE COULD YOU PUT THOSE GREENSBORO DEMOCRATS IF YOU 

DON’T GO -- 

A. THEY WOULD NATURAL NATURALLY FALL INTO THE 6TH 

DISTRICT. 

JUDGE BOYLE: IS THAT WHERE THEY ARE IN THE ‘98 

PLAN? 

THE WITNESS: YES. 

  

  

 



  

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Bh. 90 
JUDGE BOYLE: THEY ALL WENT INTO THE SIXTH. 

THE WITNESS: AS I RECALL, YOUR HONOR. 

JUDGE BOYLE: SO GUILFORD IS INTACT IN THE ‘98 

PLAN. 

THE WITNESS: I THINK SO, YOUR HONOR. I’M 

FAIRLY CERTAIN IT IS. 

JUDGE BOYLE: WE WON'T HOLD YOU TO THAT, BUT 

THAT’S YOUR MEMORY? 

THE WITNESS: I BELIEVE THAT’S CORRECT. 

MS. SMILEY: THERE'S A TRIPLE MAP THAT I HOPE I 

CAN GET MY HANDS ON. 

THE WITNESS: THERE HAVE BEEN SO MANY MAPS. 

MS. SMILEY: I HAVE SO MANY MAPS HERE, WHEN I 

NEED IT, I CAN'T GET IT. EXCUSE ME A MOMENT. 

BY MS. SMILEY: 

Q. EXHIBIT 305, WHICH I USUALLY HAVE THREE OR FOUR 

COPIES IN MY POCKET. 

JUDGE BOYLE: ACTUALLY, SENATOR, YOU WILL SEE 

THAT THE FIFTH AND SIXTH SHARE GUILFORD NOW. 

THE WITNESS: THAT'S RIGHT. I HAD FORGOTTEN 

THAT. THAT IS CORRECT. 

JUDGE BOYLE: ALL RIGHT. 

THE WITNESS: WHEN WE TOOK MORE THAN -- MORE OF 

THE POPULATION FROM FORSYTH AND PUT IT INTO THE 12TH, THEN 

WE NEEDED TO PICK UP POPULATION FOR THE FIFTH AND WE 

  

  

 



  

356 
    

  

  

90 —9®- 
DECIDED TO GO DOWN TO GUILFORD AND I HAD FORGOTTEN ABOUT 

THAT. THAT’S THE WAY WE MADE UP THAT POPULATION. 

BY MS. SMILEY: 

Q. WHAT'S HAPPENED TO THOSE GUILFORD DEMOCRATS, HAVE 

THEY BEEN SPLIT BETWEEN THE TWO REPUBLICAN DISTRICTS? 

A. 1 DON/T RECALL. I'M SORRY, I DON’T RECALL. 

Q. THAT’S NOT WHAT WE’RE HERE ABOUT TODAY ANYWAY. 

WHEN YOU MADE A DECISION TO GO TO GREENSBORO, DID YOU 

GIVE ANY INSTRUCTION TO MR. COHEN OR ANYONE TO GO TO 

GREENSBORO AND GET THE BLACKS OR GET THE BLACK COMMUNITY? 

A. NO, I DID NOT. I WOULD NOT HAVE GIVEN THAT TYPE OF 

INSTRUCTION BECAUSE THAT’S NOT THE MINDSET THAT I HAD. 

Q. AND WHAT, IN FACT, WAS PUT INTO THE DISTRICT, WAS IT 

JUST BLACK PRECINCTS; IF YOU KNOW? 

A. THEY WERE MOSTLY DEMOCRATIC LEANING PRECINCTS, 

DEMOCRATIC VOTING PRECINCTS. 

Q. DO YOU KNOW IF MOST OF THEM WERE AFRICAN AMERICAN? 

A. I CAN NOT REMEMBER AND I SPECIFICALLY DID NOT GO 

THROUGH AND TRY TO REMEMBER TECHNICALLY ABOUT ALL OF THESE 

MAPS AND I CAN NOT REMEMBER WHETHER THERE WAS A MAJORITY 

OF AFRICAN AMERICANS OR NOT. IT IS OBVIOUSLY A 

SUBSTANTIAL NUMBER OF AFRICAN AMERICANS THAT WERE IN THOSE 

STRONGLY DEMOCRATIC LEANING DISTRICTS. 

Q. WERE THERE A MAJORITY OF WHITE PRECINCTS FROM 

GREENSBORO THAT ALSO WENT INTO THE DISTRICT? 

  

  

 



  

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A. THERE WERE MAJORITY WHITE PRECINCTS THERE ALSO. I 

CAN'T TELL YOU PRECISELY HOW MANY. THERE WERE A MAJORITY 

OF WHITE PRECINCTS, BUT MOST ARE ALL DEMOCRATIC LEANING 

PRECINCTS. 

Q. NO POINT IN PUTTING THEM IN IF THEY WEREN'T 

DEMOCRATIC LEANING? 

A. LIKE I SAY, WE WERE TRYING TO STRIKE THIS PARTISAN 

BALANCE. THAT'S NOT VERY PRETTY, BUT THAT’S THE KIND OF 

THING THAT HAS TO HAPPEN TO GET VOTES. 

Q. WHEN YOU WENT TO GREENSBORO AND THE PLAN EXTENDED TO 

GREENSBORO, WERE YOU ATTEMPTING IN ANY WAY TO ACHIEVE A 

PARTICULAR RACIAL PERCENTAGE IN THE DISTRICT? 

MR. EVERETT: OBJECTION, LEADING. 

JUDGE THORNBURG: OVERRULED. 

A. NO, WE WERE NOT. TI WOULD SAY THAT THE FACT THAT IT 

DID, THE NUMBER DID GO UP, THAT THAT WAS FINE WITH ME AND 

THAT WAS FINE WITH A LOT OF PEOPLE WHO WANTED TO SUPPORT 

CONGRESSMAN WATT AND WANTED TO MAKE CERTAIN THAT THERE WAS 

INCUMBENT PROTECTION, BUT THAT WAS NOT THE PRIMARY MOTIVE 

BY FAR. AND WE DID NOT HAVE A SET PERCENTAGE THAT WE WERE 

LOOKING FOR BECAUSE SPECIFICALLY THE COURT TOLD US NOT TO 

DO THAT, SO WE DIDN'T DO THAT. 

Q. AND AS ANCILLARY BENEFIT, DO YOU HAVE ANY IDEA 

WHETHER CONGRESSMAN COBLE WAS SATISFIED WITH WHAT HAPPENED 

TO GREENSBORO? 

  

  

 



  
  

  

  0 0 
A. IT IS MY UNDERSTANDING THAT HE WAS HAPPY WITH WHAT WE 

DID. 

Q. ALL RIGHT. 

A. BECAUSE IT INCREASED THE REPUBLICAN PERFORMANCE OF 

HIS DISTRICT. 

Q. NOW, WITH RESPECT TO DISTRICT 1, WHEN YOU WERE AT 

THIS POINT YOU WERE WORKING ON THE SENATE PLAN, DO YOU 

RECALL WHAT SOME OF THE ISSUES WERE AND WHAT YOU WERE 

THINKING ABOUT IN THE EASTERN PART OF THE STATE IN THE 

DISTRICT 1 AREA? 

A. WELL, I THINK ALL OF THE ISSUES THAT I TALKED ABOUT 

IN THE 12TH WOULD BE TRANSFERRED TO THE FIRST AS WELL. 

ALTHOUGH THE COURT HAD NOT SPECIFICALLY OVERTURNED THE 

FIRST DISTRICT, WE KNEW THAT FROM THE WAY THAT THE MAP WAS 

DRAWN AND, HIS HONOR SHOWED US, TALKED ABOUT DOWN IN 

SOUTHEAST, WE KNEW WE HAD TO DO SOMETHING ABOUT THAT TO 

AVOID A CONSTITUTIONAL PROBLEM WITH THE FIRST DISTRICT. 

SO WE LOOKED AT THE CORE OF THE DISTRICT, WHICH WAS 

NORTHEASTERN NORTH CAROLINA, AND WE DREW A DISTRICT THAT I 

THINK COMPLIES WITH ALL OF THE ISSUES THAT WE HAD TO DEAL 

WITH. WE HAD TO DEAL WITH THE CONSTITUTIONAL ISSUE OF 

MAKING SURE THAT RACE WAS NOT THE PREDOMINATE FACTOR AND 

MAKING SURE IT LOOKED NICE. 

BUT ALSO WE HAD SOME OTHER EVIDENCE PRESENTED TO US, 

IN THE REDISTRICTING COMMITTEE, CONCERNING THE VOTING 

     



  
  

  

  

oo *® 
AND NORTHEASTERN PART OF THE STATE, 3RD AND THE 2ND REALLY 

WAS THE REAL MAIN POINTS OF CONTENTION. 

Q. AND -- OKAY. 

A. WITH A LITTLE BIT OF A SKIRMISH DOWN WITH THE 7TH AND 

8TH DOWN IN THE ROBESON, CUMBERLAND AREA BECAUSE OF THE 

OTHER ISSUES I TALKED ABOUT EARLIER. 

Q. ALL RIGHT. IN TERMS OF, OBVIOUSLY, YOU AND 

REPRESENTATIVE MCMAHAN WERE ABLE TO REACH AGREEMENT? 

A. YES. 

Q. OKAY. AND IN TERMS OF -- THAT PLAN WAS PRESENTED TO 

THE HOUSE AND TO THE SENATE? 

A. YES. 

Q. AND THAT WOULD BE THE HOUSE SENATE PLAN A, WHICH IS 

EXHIBIT 102 AND WHICH WOULD BE THE BIG MAP THERE. WHAT 

WAS YOUR ROLE OR WHAT WAS YOUR JOB ONCE THE SENATE -- 

WELL, BEFORE THE SENATE PASSED THE PLAN, ONCE YOU AGREED 

TO THE PLAN, WHAT WAS YOUR JOB IN TERMS OF ADVOCATING THE 

PLAN? 

A. I ALREADY TALKED TO A LOT OF MY COLLEAGUES ABOUT THIS 

PLAN. I NEEDED TO CONVINCE AS MANY AS POSSIBLE THAT THIS 

WAS THE WAY TO GO AND THIS WAS A GOOD PLAN. SO I SPENT 

TIME TALKING TO THEM. I ARGUED IN COMMITTEE, I TALKED 

WITH YOUR OFFICE TO TRY TO COME UP WITH AS MANY REASONS 

CONSTITUTIONALLY AS TO HOW WE COULD DEFEND THIS PLAN IN 

COURT SO I COULD ARGUE TO MY COLLEAGUES THAT THE PLAN WAS 

     



  

  
    

  

Sb 377 

CONSTITUTIONAL. AND I DID THE BEST I COULD TO TRY TO GET 

THE PLAN THROUGH THE GENERAL ASSEMBLY. 

Q. YOU SAY YOU TALKED TO INDIVIDUAL SENATORS? 

A. XES. 

Q. ESSENTIALLY LOBBYING FOR THE PLAN? 

A. ESSENTIALLY, TRYING TO CONVINCE THEM THAT THIS IS 

WHAT WE NEEDED TO DO. 

Q. WHAT ABOUT THE DEMOCRATIC CAUCUS? 

A. I PRESENTED THE PLAN TO THE SENATE DEMOCRATIC CAUCUS. 

Q. DOES THAT INCLUDE SENATE AND HOUSE MEMBERS? 

A. NO. IT WOULD NOT HAVE BEEN A JOINT CAUCUS, BUT I 

THINK THAT I WENT AND PRESENTED THE PLAN TO THE HOUSE 

DEMOCRATIC CAUCUS. I THINK THAT I DID. I CERTAINLY 

TALKED TO A LOT OF HOUSE DEMOCRATS. I BELIEVE I DID. 

Q. I ASSUME YOU WERE TRYING TO GARNER VOTES IN THE HOUSE 

FOR SENATOR MCMAHAN? 

A. YES, REPRESENTATIVE MCMAHAN NEEDED AS MANY VOTES AS 

HE COULD GET AS WELL, SO -- 

Q. DID HE TALK WITH REPUBLICANS IN THE SENATE, IF YOU 

KNOW? 

A. I DON’T KNOW. 

Q. DID YOU TALK WITH DEMOCRATIC AND REPUBLICAN SENATORS? 

A." YES, ‘I DID. 

Q. DO YOU RECALL MAKING ARGUMENTS ON THE HOUSE FLOOR? 

A. ON THE SENATE FLOOR? 

  

  

 



    
  09 09 

EXCUSE ME, I AM CONFUSED. ON THE SENATE FLOOR? 

YES. 

AND BRIEFLY, CAN YOU RECALL SOME OF THE ARGUMENTS YOU 

USED TO GET THE PLAN ENACTED? 

A. I THINK LARGELY WHAT I HAD ALREADY SAID TO YOU, BUT I 

WENT THROUGH AND TALKED ABOUT ALL OF THE IMPROVEMENTS THAT 

WE HAD MADE AND I USE THE TERM "IMPROVEMENTS" TO SAY THAT 

WE HAD FOLLOWED THE COURT'S ORDERS IN SHAW V HUNT. ALL 
  

THE THINGS THAT WE DID TO MAKE THE PLAN FOR 

CONSTITUTIONALLY TALKED ABOUT, HOW NICE THE PLAN LOOKED, 

AND I THINK I HAD SOMETHING LIKE THIS EXCEPT NOT FOR THE 

98 PLAN. I THINK I HAD SOMETHING THAT HAD THE TWO PLANS 

BUT THE WHOLE STATE ON -- I THINK IT WAS SORT OF A 

PLACEMAT SIZE OF EACH. 

Q. RIGHT. NOW, YOU ARE REFERENCING EXHIBIT 305? 

A. I’M REFERENCING EXHIBIT -- I DON'T KNOW, IT SAYS /¢98 

DASH -- 

Q. YES. 'THAT/S EXHIBIT 305. 

A. TO CONVINCE PEOPLE, WE MADE A DRAMATIC COSMETIC 

CHANGE ACTUALLY AND REAL GEOGRAPHIC CHANGE IN THE 12TH 

DISTRICT AND THE 1ST DISTRICT. I TALK ABOUT HOW WE SPLIT 

LESS COUNTIES AND HOW WE HAD NOT SPLIT PRECINCTS EXCEPT 

FOR TWO OF THEM, THAT WE HAD TIED TOGETHER COMMUNITIES OF 

INTEREST, THAT WE HAD A PLAN THAT WAS FAIR, A PARTISAN 

BALANCE, A 6/6 SPLIT, A PLAN I THOUGHT THE PUBLIC WOULD     
   



  

  
  

  

  

SUPPORT AND PLAN THAT PEOPLE WOULD HAVE A BETTER KNOWLEDGE 

OF WHAT DISTRICT THEY WERE IN. 

JUDGE BOYLE: DO ALL OF THOSE ARGUMENTS HOLD 

TRUE TODAY? 

THE WITNESS: FOR THE ‘97 PLAN? 

JUDGE BOYLE: YES, SIR. 

THE WITNESS: ABSOLUTELY. YES. 

JUDGE BOYLE: BUT THE ‘98 PLAN IS NOT 

GEOGRAPHICALLY COMPACT AND YOU NOW HAVE THE EXPERIENCE OF 

ONE ELECTION UNDER THE ‘98 PLAN AND NONE EVER RUN UNDER 

THE ‘97 PLAN, SO HOW DO THOSE ARGUMENTS REMAIN VALID? 

THE WITNESS: I GUESS THAT YOU CAN USE A COMPASS 

AND A COMPUTER TO MAKE EVERY DISTRICT AS GEOGRAPHICALLY 

COMPACT AS IT CAN BE, BUT THERE WERE MANY OTHER FACTORS 

THAT WE CONSIDERED IN THIS MATTER. FOR EXAMPLE IF YOU ARE 

LOOKING AT THE PARTISAN NATURE OF THE 12TH DISTRICT, SINCE 

THAT’S WHAT WE MAINLY DEALT WITH, I THINK THAT A DEMOCRAT 

HAS A MUCH BETTER CHANCE UNDER THE ‘97 PLAN THAN UNDER THE 

98 PLAN. 

JUDGE BOYLE: ONLY AS TO THE 12TH DISTRICT, YOU 

MAKE LESS VULNERABLE THE 5TH AND 6TH AND 8TH, DON’T YOU? 

SO YOU TRADE OFF THREE DISTRICTS THAT CONCEIVABLY MAY BE 

"LESS IN PLAY" UNDER THE ‘97 PLAN AND MAKE ONE DISTRICT 

THE 12TH, ALMOST A SURE THING? 

THE WITNESS: WELL, I DON’T THINK THAT UNDER THE 

  

  

 



    
  

  

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WAY THE VOTING RESULTS HAVE BEEN OVER THE PAST FEW YEARS 

THAT THERE WOULD BE ANY CHANCE THAT A DEMOCRAT COULD WIN 

IN THE 6TH AND IN THE 5TH AND IN THE 10TH, REGARDLESS OF 

WHETHER IT’S THE ‘98 OR ‘97 PLAN. 

JUDGE BOYLE: BUT THERE’S MARGINALLY MORE CHANCE 

IN THE ’98 PLAN THAN IN THE ‘97 PLAN? 

THE WITNESS: MARGINALLY. 

JUDGE BOYLE: ‘AND AS TO THE 8TH, THERE’S NO 

DIFFERENCE IN THE 8TH. 

THE WITNESS: THERE'’S NO DIFFERENCE IN THE 8TH. 

JUDGE BOYLE: THE 8TH IS THE SAME IN BOTH PLANS? 

THE WITNESS: IT IS THE SAME IN BOTH PLANS. 

JUDGE BOYLE: ROWAN IS BASICALLY THE BIGGEST 

THE WITNESS: YES. BASICALLY, PEOPLE WERE TAKEN 

OUT OF GUILFORD AND ROWAN IS WHOLLY IN THE 12TH IN THE ‘98 

PLAN. 

BY MS. SMILEY: 

Q. WHILE WE'RE TALKING ABOUT THE ‘98 PLAN, WAS THE ‘98 

PLAN DRAWN WITH A PARTICULAR PURPOSE IN MIND? 

A. IT WAS DRAWN SPECIFICALLY TO ADDRESS THE CONCERNS 

LAID OUT BY THE COURT. 

Q. BY THIS COURT? 

A. THIS COURT, YES. WE LOOKED AT EVERY LINE AND TRIED 

TO ABIDE BY EVERY INSTRUCTION. 

     



  
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25 

  
  

  

  

oO 00 a 
Q. SO: == 

A. BUT THIS WAS NOT OUR PLAN OF CHOICE. 

Q. OKAY. THERE’S BEEN SOME DISCUSSION ABOUT WHETHER OR 

NOT IN THE ‘97 PLAN THAT THE 8TH DISTRICT COULD BE MADE 

MORE DEMOCRATIC OR SOME DEMOCRATS FROM MECKLENBURG COUNTY 

COULD GO DOWN THERE AND USE THOSE DEMOCRATS IN THE 8TH. 

WERE THERE CERTAIN CONSTRAINTS ABOUT THE 8TH IN THE 1997 

PLAN WHEN YOU WERE WORKING ON IT? 

A. WELL, AT THE TIME WE WERE WORKING ON THIS, THE 8TH 

WAS REPRESENTED BY THE DEAN OF THE NORTH CAROLINA 

DELEGATION, CONGRESSMAN BILL HEFNER, WHO HAD BEEN THERE A 

LONG TIME. HE HAD A STRONG CORE OF SUPPORT IN THE 

LEGISLATURE IN HIS DISTRICT. AND ONE OF THE THINGS -- ONE 

OF THE RESULTS OF THE PLAN, ALTHOUGH I KNOW THAT THE 

DISTRICT EVENTUALLY WAS WON BY A REPUBLICAN, THIS TIME BY 

A SLIGHT MARGIN, ONE OF THE ACCOMPLISHMENTS OF THE PLAN 

WAS TO SIGNIFICANTLY IMPROVE THE DEMOCRATIC PERFORMANCE OF 

THE 8TH DISTRICT FROM THE 1992 PLAN TO THE 1997 PLAN. 

CONGRESSMAN HEFNER HAD BEEN ELECTED BECAUSE HE WAS AN 

INCUMBENT AND HAD BEEN THERE A LONG TIME, BUT HIS DISTRICT 

HAD INCREASINGLY BECOME MORE REPUBLICAN LEANING AND THE 

BEST WAY WAS TO MOVE THE DISTRICT EASTWARD BECAUSE THAT'S 

WHERE MOST OF THE DEMOCRATIC VOTERS WERE. THAT’S WHAT WE 

DID, ALTHOUGH WE DIDN'T MOVE IT AS FAR AS I WANTED TO MOVE 

IT. WE CAME INTO PLAY WITH CONGRESSMAN MCINTYRE, BUT 

  

  

 



  

  

  

  > = ry 
CONGRESSMAN HEFNER WAS SATISFIED. HE WAS MOVED OUT OF 

ROWAN AND HE WANTED TO KEEP ALL OF CABARRUS BECAUSE THAT 

WAS HIS HOME COUNTY AND HE DID NOT WANT TO GO INTO 

MECKLENBURG. AND TO GET TO THE DEMOCRATIC VOTERS IN 

MECKLENBURG, YOU HAVE TO GO THROUGH STRONG REPUBLICAN 

SUBURBAN DISTRICTS, SO THAT WAS JUST NEVER CONSIDERED AND 

WAS NEVER AN OPTION. NOW, THERE WAS A PLAN PRESENTED -- 

JUDGE BOYLE: HE HAD TO WANT TO GET RID OF 

MOORE, TOO, DIDN’T HE? 

THE WITNESS: YES, WE DID THAT TOO. WE MOVED TO 

CUMBERLAND. I LOST MY TRAIN OF THOUGHT. 

OH, SENATOR COCHRANE HAD PRESENTED A PLAN SIMILAR TO 

REPRESENTATIVE MORGAN’S PLAN THAT YOU ASKED ME ABOUT 

EARLIER, WHICH WENT FROM MECKLENBURG ALL THE WAY TO 

ROBESON, BUT, AND I TALKED WITH SENATOR COCHRANE ABOUT 

THAT AND OTHER REPUBLICANS WHO WERE PUSHING THE PLAN, I 

JUST TOLD THEM FROM THE PARTISAN NATURE OF THE PLAN THAT 

IT JUST WOULD NOT. DEMOCRATS AND THE SENATE WOULD NOT DO 

THAT AND IT WAS VIEWED AS A PARTISAN PLAN, IS WHAT IT WAS 

VIEWED AS AND I THINK THAT'S PROBABLY WHAT IT WAS. 

Q. OKAY. NOW, AT SOME POINT IN TIME, THE PLAN PASSED 

AND DID YOU HAVE OCCASION TO GO AND VISIT WITH THE 

DEPARTMENT OF JUSTICE? 

A. YES. 

Q. NOW, I DON’T BELIEVE YOU WERE HERE FOR MR. EVERETT'’S 

     



  
24 

25 

  
  

  

  

ah PY AE... 
OPENING SPEECH, BUT HE HAS ALLEGED IN HIS OPENING 

STATEMENT THAT THE STATE WAS UNDER THE GUN TO THE 

DEPARTMENT OF JUSTICE AND THEIR MAXIMIZATION POLICY AND 

HAD TO DRAW A BLACK DISTRICT. IN TERMS OF THE DEPARTMENT 

OF JUSTICE, HAD YOU HAD ANY CONTACTS WITH THEM WHEN YOU 

WERE DRAWING THE PLAN? 

A. NO. 

Q. AND WHAT WAS YOUR FIRST CONTACT WITH THEM? 

A. WHEN I FLEW TO WASHINGTON WITH MEMBERS OF THE 

ATTORNEY GENERALS OFFICE AND SOME OTHER PEOPLE TO PRESENT 

THE PLAN TO THEM, THAT WAS THE FIRST CONTACT I HAD WITH 

THE JUSTICE DEPARTMENT. 

Q. WAS 1T THE l1AST? 

A. YES. 

Q. AND WAS IT A MEMORABLE MEETING? 

A. NO. TI MEAN, I THINK THAT THEY UNDERSTOOD THE RULING 

IN SHAW V HUNT AND THERE WAS VERY LITTLE PROBLEM WITH   

PRECLEARANCE. I DIDN'T THINK THAT THAT WOULD BE A REAL 

CONCERN. YOU NEVER KNOW WHAT JUSTICE IS GOING TO DO, SO 

WE TREATED IT SERIOUSLY AND WENT UP AND TALKED TO THEM 

ABOUT WHAT WE HAD DONE. AND I HAD MENTIONED IN MY 

DEPOSITION NUMEROUS TIMES RACIAL FAIRNESS WAS IMPORTANT, 

AND I THINK THE PLAN WAS RACIALLY FAIR. THAT I NEVER 

THOUGHT THAT THAT WAS A SERIOUS DANGER. WE WERE MUCH MORE 

CONCERNED WITH MAKING SURE THAT THE PLAN WAS 

  

  

 



  
  

  

  

90 o® 
CONSTITUTIONAL UNDER SHAW V HUNT. 

Q. AND THAT IT WAS BY PARTISAN? 

A. YES, THAT WAS THE PRACTICAL CONSIDERATION OF =-- JUST 

LET ME STEP BACK A MINUTE. I WOULD VERY MUCH LOVE TO DRAW 

THESE DISTRICTS IN A VACCUUM, BUT YOU HAVE TO GET MAJORITY 

VOTES. IN THE LEGISLATURE, PARTISAN CONSIDERATIONS COME 

INTO PLAY, AND WHERE PEOPLE LIVE COME INTO PLAY, AND 

INCUMBENTS COME INTO PLAY. AND IT IS VERY DIFFICULT 

TRYING TO PRACTICALLY AND REALISTICALLY PUT TOGETHER 

MAJORITY VOTES WITHOUT TAKING THESE THINGS UNDER 

CONSIDERATION, AND THAT'’S WHAT WE DID. I WAS GIVEN A JOB 

TO DO AND I WANTED TO MAKE SURE I DID IT. 

Q. AND YOU WERE ATTEMPTING TO DO IT IN A LAWFUL MANNER, 

I SUPPOSE? 

A. YES. AND I THINK WE ENDED UP WITH A PLAN AND THIS 

WAS FOREMOST IN MY MIND TO SERVE THE PUBLIC BETTER AND I 

THINK THIS PLAN DOES. I THINK THIS PLAN IS A PLAN WHERE 

PEOPLE CAN, IN GENERAL, KNOW WHERE THEY VOTE. IT’S A FAIR 

PLAN. 

Q. OKAY. ONE CLEAN UP DETAIL. THERE'S AN EXHIBIT 400 

IN YOUR NOTEBOOK WHICH IS AN AFFIDAVIT YOU PREVIOUSLY 

FILED WITH THE COURT? 

A. YES. 

MS. SMILEY: I HAVE NO FURTHER QUESTIONS. 

CROSS-EXAMINATION 
  

     



  

24 

25 

387 
  

  

  

  

LAA *® 
REDISTRICTING COMMITTEE AND OTHER ATTORNEYS ADVOCATING FOR 

A MAJORITY/MINORITY DISTRICT AND THAT THERE COULD BE 

VOTING RIGHTS ACT PROBLEMS IF WE DIDN'T DO THAT, BUT YOU 

CAN DO IT FAIRLY EASILY AND DRAW GEOGRAPHICALLY COMPACT 

DISTRICT. SO IT WAS THE RIGHT THING TO DO ANY WAY. SO 

FOR ALL OF THOSE REASONS, WE DID IT. 

Q. AND IT WOULD HAVE BEEN WRONG NOT TO DO IT? 

A. I THINK IT WOULD HAVE BEEN WRONG NOT TO DO IT. 

Q. YOU SAY MR. STEIN CAME THERE AND TALKED TO YOU, 

PRESENTED INFORMATION. WAS HE THERE AS A REPRESENTATIVE 

OF THE LEGAL DEFENSE FUND OR THE NCC OR THE NAACP? 

A. I DON'T REMEMBER. I DON’T KNOW IF HE CAME AS JOHN Q 

CITIZEN OR I DON’T KNOW HE GAVE INFORMATION; SOME OTHER 

ATTORNEYS DID AS WELL. 

Q. APPROXIMATELY, WHAT IS THE AFRICAN AMERICAN 

PERCENTAGE OF THE POPULATION OF NORTH CAROLINA? 

A. I’M NOT SURE, BUT MAYBE SOMEWHERE BETWEEN 22 TO 25 

PERCENT, SOMEWHERE IN THERE. I’M NOT REALLY SURE ABOUT 

THAT BECAUSE WE DIDN'T HAVE TO PAY ATTENTION TO WHAT THE 

POPULATION OF THE WHOLE STATE WAS FOR ANY REASON. 

Q. LET ME ASK YOU THIS, THOUGH: ISN’T IT TRUE THAT 

AFRICAN AMERICANS AS VOTERS, AS MEMBERS OF THE LEGISLATURE 

ARE VERY IMPORTANT IN THE DEMOCRATIC PARTY POLITICAL 

PROCESS? 

A. ALL VOTERS AND ALL KINDS OF PEOPLE ARE IMPORTANT IN 

  

  

 



  

388 
  

  

  

  

00 o® 
THE DEMOCRATIC POLITICAL PROCESS, YES. 

Q. ISN'T IT ALSO TRUE APPROXIMATELY 95 PERCENT OR EVEN 

HIGHER OF THE AFRICAN AMERICANS OF NORTH CAROLINA WHO 

REGISTER TO VOTE REGISTER AS DEMOCRATS? 

A. THAT SOUNDS LIKE A FIGURE THAT IS CORRECT. I DON'T 

KNOW THE FIGURE PERSONALLY, BUT IT SOUNDS LIKE A FIGURE 

THAT IS CORRECT. 

Q. NORTH CAROLINA HAS CLOSED PRIMARIES FOR THE 

DEMOCRATIC PRIMARY? 

A. I HAVE BEEN -- I BELIEVE YOU CAN VOTE IN THE 

DEMOCRATIC PARTY IF YOU ARE UNAFFILIATED. 

Q. YOU CAN'T VOTE IF YOU ARE A REPUBLICAN OR WITH THE 

REFORM PARTY? 

A. THAT’S CORRECT. 

Q. UNDER THOSE CIRCUMSTANCES, ISN'T IT TRUE THAT AFRICAN 

AMERICANS ARE A VERY STRONG POLITICAL INFLUENCE WITHIN THE 

DEMOCRATIC PARTY? 

A. I WOULD SAY THAT, YES; YES, THAT’S TRUE. 

Q. AND WASN’T IT YOUR BELIEF, FROM WHAT YOU HAD HEARD 

AND SEEN AS A REPRESENTATIVE AND OTHERWISE, THAT THE 

AFRICAN AMERICAN POLITICAL FACTION, AS IT WERE IN NORTH 

CAROLINA, IS VERY COHESIVE, THAT AFRICAN AMERICANS ARE NOT 

ONLY DEMOCRATIC BUT (UNINTELLIGIBLE) IN THE POLITICAL 

PROCESS? 

A. I WOULDN'T WANT TO GO AS FAR AS TO SAY THAT, BUT MUCH 

  

  

 



    
  00 00 

LESS SO TODAY THAN IT USED TO BE, I WOULD THINK. 

Q. ALL RIGHT. WASN'T IT TRUE, IN YOUR VIEW, THAT 

AFRICAN AMERICANS WERE VERY ANXIOUS TO HAVE AS MANY 

AFRICAN AMERICAN MEMBERS IN CONGRESS AS POSSIBLE? 

A. THERE WERE MANY AFRICAN AMERICANS, YES, WHO THOUGHT 

IT WAS IMPORTANT TO HAVE AFRICAN AMERICAN MEMBERS OF 

CONGRESS REPRESENTING NORTH CAROLINA, YES. 

Q. AND MANY OF THEM THOUGHT IT WAS IMPORTANT TO HAVE TWO 

MAJORITY BLACK DISTRICTS BACK IN 1992, CORRECT? 

A. YES. 

Q. AND DIDN'T MANY OF THEM THINK THAT IT WAS IMPORTANT 

TO HAVE AS HEAVY A MINORITY POPULATION, AFRICAN AMERICAN 

POPULATION IN THE CONSTITUTED 12TH DISTRICT AS COULD 

POSSIBLY BE PUT THERE? 

A. I WOULD SAY THAT THERE WOULD BE MANY AFRICAN 

AMERICANS WHO WOULD ADVOCATE FOR THAT, YES. 

Q. AND WITH RESPECT TO THE 1ST DISTRICT, WEREN'T THERE 

MANY THAT ADVOCATED HAVING A MAJORITY BLACK DISTRICT 

THERE? 

A. YES. MANY OF -- ALL RACES ADVOCATED THAT, YES. 

Q. NOW, WITH RESPECT TO WHAT COULD BE DONE IN TERMS OF 

VOTING RIGHTS ACT, YOU SAID SOMETHING TO THE EFFECT THAT 

MR. STEIN HAD TALKED ABOUT VOTING RIGHTS ACT, I GUESS THAT 

WAS SECTION 2. DO YOU REMEMBER WHETHER AT ONE TIME YOU 

MADE THE COMMENT THAT IT WOULD BE REALLY IMPOSSIBLE TO     
   



  

24 

25 

403 
  

  

  

  

: A Am 00 
97 PLAN, YES. 

Q. SO THAT BY HAVING ASSEMBLED A DISTRICT WHICH HAD A 

VERY HIGH PERCENTAGE, ALTHOUGH NOT A MAJORITY PERCENTAGE 

IN THE 12TH AFTER THE ‘97 PLAN OF AFRICAN AMERICANS, YOU 

WERE ABLE TO ASSURE THAT THE DEMOCRATIC NOMINEE WOULD BE 

AFRICAN AMERICAN AND THE PERSON ELECTED WOULD BE AFRICAN 

AMERICAN; ISN'T THAT TRUE? 

A. I DON’T THINK ANYTHING IS ASSURED. CONGRESSMAN WATT 

WAS AN INCUMBENT. WE PAID ATTENTION TO ALL INCUMBENTS 

AND, YES, WE LOOKED AT RACE. AS I TESTIFIED BEFORE, IT 

WAS IMPORTANT RACIAL FAIRNESS, BUT WE DID NOT SPECIFICALLY 

REACH ANY TYPE OF THRESHOLD IN RACE IN THE 12TH DISTRICT. 

Q. YOU SAY YOU DIDN’T TRY TO REACH ANY THRESHOLD IN 

RACE. AS FAR AS THE ‘97 PLAN, THE CHANGE FOR THE ‘92 

PLAN, DIDN'T YOU BASICALLY TRY TO ACHIEVE AS CLOSE TO 50 

PERCENT AS YOU COULD GET WITHOUT GETTING THERE? 

A. NO, WE DID NOT HAVE ANY TYPE OF GOAL. WE FIRST 

LOOKED AT TRYING TO CURE THE CONSTITUTIONAL DEFECTS AND 

MADE SURE THAT IT WAS STILL A STRONGLY LEANING DEMOCRATIC 

DISTRICT. I THINK THE FACT THAT IT HAS A RELATIVELY HIGH 

NUMBER OF AFRICAN AMERICANS IS A FINE THING. IT WAS A 

BENEFIT. IT WAS ONE OF THE CONSIDERATIONS PARTICULARLY 

THERE WERE AS YOU’VE ASKED ME BEFORE, THERE WERE PEOPLE 

WHO WERE PUSHING FOR A HIGHER PERCENTAGE, BUT THERE WAS 

ALSO THE CONSIDERATION OF MAKING SURE THAT THE SIXTH 

  

  

 



404 
  

  

  0 o® 
1 DISTRICT WAS MORE REPUBLICAN. THAT WAS SOMETHING THAT 

  

2 CONGRESSMAN COBLE WANTED, SO ALL OF THOSE FACTORS CAME 

3 INTO PLAY. 

4 Q. NEVERTHELESS, AT THE END OF THE DAY IN 1997, ALL OF 

5 THE PREDOMINATELY BLACK PRECINCTS IN MECKLENBURG HAD BEEN 

6 IN THE 1992 PLAN WERE RETAINED IN THE 1997 PLAN; ISN'T 

7 THAT TRUE? 

8 A. PROBABLY MOST ALL OF THEM WERE, BUT WITH THE ADDITION 

9 OF A WHOLE LOT MORE. 

10 Q. AND THAT WAS BECAUSE OF THE DELETION OF DURHAM AND OF 

ll THIS SLIVER OVER IN GASTON? 

12 A. BECAUSE OF WHAT THE COURT TOLD US TO DO, WE HAD TO 

13 MAKE SURE THAT THIS PLAN LOOKED A WHOLE LOT NICER THAN IT 

14 DID AND RACE DIDN'T PREDOMINATE. 

15 Q. YET IN TRYING TO FOLLOW WHAT YOU SAY THE COURT TOLD 

16 YOU TO DO, YOU WOUND UP WITH THE PREDOMINATELY BLACK 

17 PRECINCTS IN MECKLENBURG THAT, BY PREDOMINATELY I WILL USE 

18 MAJORITY. EVERY ONE OF THEM WAS IN THE 12TH DISTRICT. 

19 EVERYONE IN IREDELL, EVERYONE IN ROWAN, DAVIDSON AND 

20 FORSYTH AND EVERYONE IN GUILFORD; WASN’T THAT TRUE? 

21 MS. SMILEY: I OBJECT TO THE FORM OF THE 

22 QUESTION. I MAY NOT HAVE BEEN LISTENING CLOSE ENOUGH, BUT 

23 HE SAID EVERYONE IN THE DISTRICT. 

24 A. I THINK MOST WERE. IN DAVIDSON, I DON’T THINK SO. I 

25 THINK DAVIDSON THERE’S A LITTLE LINE ON THIS DISTRICT. IF     
  

 



405 
  

  

  

x Ad ( } 
3 YOU LOOK WHAT WE DID TO DAVIDSON, IF YOU WILL MOVE TO THE 

  

2 | 797 MAP, YOU WILL SEE A DIFFERENCE TO WHAT WE DID IN 

3 | DAVIDSON. YES, I WOULD SAY MOST OF THE PRECINCTS THAT ARE 

4 | IN THOSE SIX COUNTIES THAT WERE IN THE ‘92 PLAN, MOST OF 

5 | THEM ENDED UP IN THE ’97 PLAN, BUT A WHOLE LOT MORE IN 

6 | EACH ONE. 

7 | ©. YOU MAY LOOK AT THIS CLOSE UP. DOESN’T THAT TEND TO 

8 | SHOW -- THIS IS THE ’97 PLAN -- DOESN'T THAT TEND TO SHOW 

9 | A CLOSE CONFORMITY IN THIS INSTANCE 40 TO 100 PERCENT 

10 | BLACK PRECINCTS ON THE ONE HAND AND BOUNDARIES OF THIS 

11 | DISTRICT THE 12TH DISTRICT ON THE OTHER? 

12 | A. YES, IT DOES SHOW A CLOSE CONFORMITY OF THAT. I 

13 | WOULDN’T ARGUE WITH THAT OR DENY THAT. 

14 | Q. NOW, LET ME ASK YOU THIS. WITH RESPECT -- I BELIEVE 

15 | YOU SAID AT VARIOUS TIMES WITH RESPECT TO THE DRAWING OF 

16 | THE 1997, 12TH DISTRICT, YOU WERE SEEKING TO RETAIN THE 

17 | CORES? 

12} A. 'vYES, SIR. 

19 | Q. THE CORE OF THE 12TH DISTRICT? 

20] A." yPs, 

21 | Q. NOW, ISN'T IT TRUE THAT IN THAT CORE OF THE 1997 

22 | PLAN, OF THE AFRICAN AMERICANS WHO WERE THERE, 90 PERCENT 

23 | HAD BEEN IN THE 12TH DISTRICT BEFORE? 

24 | A. I DON’T KNOW ABOUT THAT EXACT PERCENTAGE, BUT THAT 

i 25 SOUNDS --       
 



  
  

  

  

= Aa L A 
ABOUT RIGHT? 

ABOUT RIGHT. 

OKAY. 

WE CUT OFF GASTON, WE CUT OFF ALAMANCE, WE CUT OFF 

ORANGE, CUT OFF DURHAM AND TOOK ALL OF THOSE OUT OF THE 12 

AND KEPT THE CORE, THE TRIAD TO MECKLENBURG CORE FATTENED 

IT, MADE IT LOOK NICER. TOOK IN A LOT MORE DEMOCRATIC 

LEANING VOTERS, SYSTEMS AS WE COULD AND MADE IT A NICER 

LOOKING DISTRICT. 

Q. IN YOU TAKE IN AFRICAN AMERICANS, ADD THEM, YOU ARE 

TAKING IN ALWAYS ALSO DEMOCRATIC LEANING VOTERS 95 PERCENT 

OF THE TIME; ISN’T THAT TRUE? 

A. YES. AFRICAN AMERICANS GENERALLY ARE STRONGLY 

DEMOCRATIC LEANING VOTERS, YES. 

Q. AND WITH RESPECT TO THE DRAWING OF THE PLAN AS TO THE 

CORE, WOULDN'T IT BE TRUE THAT LESS THAN 50 PERCENT OF THE 

WHITES WHO WERE IN THE 12TH DISTRICT IN THE ‘97 VERSION, 

LESS THAN 50 PERCENT HAD BEEN IN THE 12TH DISTRICT IN THE 

1992 VERSION? 

A. SORRY, ASK THAT AGAIN. 

Q. I ASKED YOU ABOUT THE NUMBER OF AFRICAN AMERICANS WHO 

WERE IN THE 1997 PLAN WHO HAD BEEN IN THE ‘92 PLAN. I 

BELIEVE YOU AGREE WITH ME THE FIGURE WAS PROBABLY AROUND 

90 PERCENT? 

A. I DON’T KNOW THE EXACT FIGURE, BUT IT’S VERY HIGH. 

     



407 
  

  

  °0 *® 
1 Q. ALL RIGHT. NOW, ASKING THE SAME QUESTION WITH 

  

2 RESPECT TO THE WHITES WHO WERE IN THE 1997 PLAN AND WHO 

3 HAD BEEN IN THE ‘92 PLAN. WASN'T THAT ONLY LESS THAN 50 

4 PERCENT, IN THE HIGH 40S? 

5 A. I HAVE NO IDEA. 

6 Q. DO YOU HAVE ANY IDEA WHETHER IT WAS SIGNIFICANTLY 

7 LESS THAN THE PERCENTAGE FOR THE AFRICAN AMERICANS? 

8 A. I DON'T KNOW. 

) Q. WELL, WASN'T IT YOUR BELIEF THAT THE CORE BEING 

10 RETAINED WAS PRIMARILY A RACIAL CORE COMPOSED OF AFRICAN 

11 AMERICANS? 

12 A. NO. IT WAS A GEOGRAPHIC CORE OF THE TRIAD TO 

i3 MECKLENBURG MAKING CERTAIN THAT WE HAD AS MANY DEMOCRATIC 

14 LEANING VOTERS AS POSSIBLE. 

15 Q. AND IF THE RESULT OF THAT WAS THAT THE CORE, IF I MAY 

16 USE THAT TERM, OF AFRICAN AMERICANS THAT WAS RETAINED WAS 

17 SUBSTANTIALLY GREATER THAN THE CORE OF WHITES THAT WERE 

18 RETAINED, YOU WOULD SAY THAT SIMPLY RESULTED IN GEOGRAPHY? 

19 A. YES. AND I’M NOT QUITE -- ARE YOU TALKING ABOUT CORE 

20 BEING RETAINED ONLY IN THOSE SIX COUNTIES? ARE YOU 

21 LIMITING IT TO THE SIX COUNTIES TAKING OUT ORANGE AND 

22 DURHAM AND ALAMANCE? 

23 Q. I’M TALKING ABOUT THE PEOPLE WHO WERE THERE BEFORE. 

24 AND I’M ASKING YOU: ISN'T IT TRUE THAT THERE'S A 

25 SUBSTANTIALLY HIGHER PERCENTAGE OF AFRICAN AMERICANS WHO       
 



  

  
  

  

  

WERE THERE IN THE 1997 PLAN AND ALSO THERE IN THE ’92 

PLAN, OUR PERCENTAGE OF WHITES -- I’M ASKING YOU WHETHER 

YOU ARE SAYING THAT'S JUST DUE TO THE GEOGRAPHY? 

A. I’M NOT QUITE SURE WHAT YOU MEAN BY THAT. 

Q. YOU ARE TALKING ABOUT A GEOGRAPHICAL CORE? 

A... YES, 

Q. AND BY "GEOGRAPHICAL CORE," DO YOU MEAN A SUBSTANTIAL 

PERCENTAGE OF THE LAND AREA; IS THE SAME THAT WAS IN THE 

PREVIOUS ONE? 

A... ¥ES, 

Q. AND WHAT WOULD BE THAT PERCENTAGE? 

A. I HAVE NO CLUE. I DON’T KNOW. 

Q. SO YOU AREN'T ABLE TO MATCH THAT UP IN ANY WAY WITH 

RESPECT TO CORE OF POPULATION AS DETERMINED BY RACE? 

A. NO, I’M NOT. 

Q. NOW, WITH RESPECT TO THE MAP OF THE 12TH DISTRICT, I 

JUST WANT TO BE SURE ON THIS. LOOKING AT THIS MAP, WOULD 

YOU BE -- AND THE MAP IS JOINT EXHIBIT 106. WOULD YOU BE 

ABLE TO IDENTIFY FOR ME WHAT MIGHT BE REFERRED TO AS THE 

"GREENSBORO BLACK COMMUNITY"? 

A. ONLY BY THE FACT THAT YOU HAVE ON THIS MAP ACROSS 

HERE PRECINCTS THAT SAY 40 TO 100 PERCENT BLACK. BECAUSE 

OF THIS MAP, I CAN POINT IT TO YOU AND SAY, THERE, BUT I 

COULD NOT TELL YOU IF YOU GAVE ME A MAP WITHOUT THAT 

INFORMATION ON IT WHERE THAT WOULD BE. 

  

  

 



409 
  

  

  00 o® 
3 Q. YOU WOULD THINK THAT AREA IDENTIFIED BY THE CROSS RED 

  

2 OR THE CHECKER RED MARKS ON EXHIBIT 106, THOSE WITH 40 TO 

3 100 PERCENT CONCENTRATION WOULD BE WHAT'S REFERRED TO AS 

4 THE GREENSBORO BLACK COMMUNITY? 

8 A. I DON’T HAVE A CONCEPT OF WHAT THE GREENSBORO BLACK 

6 COMMUNITY ASK. IF YOU ARE TAKING INTO ACCOUNT THOSE 

7 PRECINCTS THAT HAVE ONLY 40 PERCENT AFRICAN AMERICAN, THEN 

8 YOU HAVE SUBSTANTIALLY LESS THAN THE MAJORITY OF THE 

9 AFRICAN AMERICAN. THIS IS THE FIRST TIME I HAVE SEEN THIS 

10 MAP. I WOULDN'T BE ABLE TO SAY WHERE THE GREENSBORO BLACK 

1 COMMUNITY WOULD BE. 

12 Q. BY THE SAME TOKEN, WERE THE HIGH POINT BLACK 

13 COMMUNITY OR WINSTON-SALEM OR ANY OF THE OTHER COMMUNITIES 

14 THERE? 

15 A. RIGHT. 

16 Q. OKAY. DO YOU RECALL HAVING SEEN A REFERENCE TO THE 

17 TERM "GREENSBORO BLACK COMMUNITY" IN AN E-MAIL YOU 

18 RECEIVED? 

ao A. I HAVE BEEN SHOWN THE E-MAIL SINCE MY DEPOSITION. I 

20 DO NOT RECALL RECEIVING THE E-MAIL, BUT I HAVE BEEN SHOWN 

21 BY ATTORNEYS FROM THE ATTORNEY GENERAL’S OFFICE THE E-MAIL 

22 THAT YOU ARE TALKING ABOUT. 

23 Q. YOU WERE THE FIRST PERSON TO BE DEPOSED, WEREN'T YOU? 

24 A. I DON'T KNOW. 

25 Q. TO THE BEST OF YOUR KNOWLEDGE?       
 



410 
  

  

  hha 0 
3 A. I DON’T KNOW. 

  

2 Q. DO YOU KNOW WHETHER THIS DOCUMENT, WHICH IS MARKED 

3 EXHIBIT 16 TO THE DEPOSITION OF GERRY COHEN, HAD BEEN 

4 FURNISHED TO THE PLAINTIFFS AS OF THE TIME OF YOUR 

5 DEPOSITION? 

6 A. I HAVE NO IDEA. 

7 Q. YOU ARE FAMILIAR WITH THE DOCUMENT NOW? 

8 A. I HAVE BEEN SHOWN THE DOCUMENT. 

9 MS. SMILEY: I’M GOING TO OBJECT. I BELIEVE HE 

10 SAID HE WAS SHOWN AN E-MAIL. I’M NOT SURE HE’S ANSWERING 

11 THE QUESTION WHETHER HE WAS SHOWN THE ENTIRE EXHIBIT. 

12 THAT’S MORE THAN ONE DOCUMENT, I BELIEVE. 

13 A. NO. I CERTAINLY HAVE NOT BEEN SHOWN THE EXHIBIT 16, 

14 BUT I WAS SHOWN THIS E-MAIL THAT YOU HAVE HERE, YES. 

15 Q. AND JUST TO CLARIFY MATTERS, EXHIBIT 16 CONSISTS OF A 

16 VARIETY OF PAGES, MOST OF WHICH PURPORT TO BE E-MAIL OR 

17 SOME TYPE CORRESPONDENCE? 

18 A. OKAY. 

1° Q. I’M JUST ASKING YOU. 

20 A. YOU WANT ME TO LOOK AT THEM ALL? I CAN LOOK AT THEM. 

21 Q. IS THAT YOUR GENERAL IMPRESSION, JUST SKIMMING 

22 THROUGH? 

23 MS. SMILEY: THE DEFENDANTS WOULD STIPULATE THAT 

24 THIS IS A GROUP OF E-MAILS THAT WERE PROVIDED TO THE 

25 PLAINTIFFS.       
 



411 
  

  

00 A 
1 MR. EVERETT: FINE. 

  

2 Q. THEN, LOOKING AT THE PAGE REFERRING TO E-MAIL FOR 

3 FEBRUARY 10, 1997, DO YOU SEE WHO IS ADDRESSED FROM AND TO 

4 WHOM? 

5 A. IT IS FROM GERRY COHEN TO ME WITH COPIES TO LESLIE 

6 WINNER. 

7 JUDGE VOORHEES: COPY TO WHOM, PLEASE? 

8 THE WITNESS: LESLIE WINNER. 

9 Q. NOW, WITH RESPECT TO GERRY COHEN, DID YOU TESTIFY 

10 PREVIOUSLY HE WAS THE PERSON WHO WAS PRIMARILY DOING THE 

11 TECHNICAL WORK, THE HANDIWORK, AS IT WERE, IN GETTING THE 

12 PLANS TOGETHER? 

13 A. YES. 

14 Q. HE HAD BEEN ASSIGNED TO YOU? 

15 A. YES. 

16 Q. AND LESLIE WINNER, SHE WAS A SENATOR AT THE TIME? 

17 A. YES. 

18 Q. AND NO LONGER IS A SENATOR? 

1° A. THAT'S CORRECT. 

20 Q. DO YOU KNOW WHETHER OR NOT AT AN EARLIER TIME IN 

21 CONNECTION WITH THE 1991 AND ‘92 PLANS, ENACTED BY THE 

22 GENERAL ASSEMBLY, WHETHER LESLIE WINNER HAD BEEN INVOLVED? 

23 A. SHE WAS AN ATTORNEY INVOLVED IN THE PROCESS. I’M NOT 

24 QUITE SURE WHOM SHE REPRESENTED, BUT SHE WAS AN ATTORNEY, 

25 MAYBE AN ADVISOR TO THE HOUSE.       
 



  
  

  

  

00 + 
Q. SHE HAD BEEN REPRESENTING THE GENERAL ASSEMBLY? 

A. I CAN'T SAY FOR CERTAIN, BUT SHE WAS AN ATTORNEY 

INVOLVED IN REDISTRICTING AND SHE HAD A LOT OF KNOWLEDGE 

ABOUT REDISTRICTING, YES. 

JUDGE THORNBURG: I THINK WE’/LL BREAK NOW FOR 

MID AFTERNOON RECESS. 15 MINUTES. 

(RECESS TAKEN.) 

BY MR. EVERETT: 

Q. SENATOR, I WAS ASKING YOU ABOUT THIS MEMO, OR E-MAIL 

RATHER, TO YOU FROM GERRY COHEN. AND I BELIEVE THAT'S 

EXHIBIT 58 IN THE DEPOSITION EXHIBITS. SENATOR, IT’S A 

FAIRLY SHORT E-MAIL OR MEMO. I WAS ASKING ABOUT THE 

PEOPLE INVOLVED. I WAS ASKING YOU ABOUT SENATOR LESLIE 

WINNER. IS SHE THE SAME LESLIE WINNER WHO’S AN ATTORNEY 

IN CHARLOTTE AND NOW THE ATTORNEY FOR THE CHARLOTTE 

MECKLENBURG SCHOOL DISTRICT? 

YES. 

AND SHE HAD EXPERIENCE IN THE REDISTRICTING PROCESS? 

YES. 

AND GERRY COHEN HAD BEEN THE PERSON WHO HAD DRAWN THE 

1991, 1992 PLAN AS WELL? 

A. I DON’T KNOW THAT PERSONALLY, BUT THAT'S SOMETHING I 

PRESUME FROM CONVERSATIONS. I THINK THAT’S CORRECT. 

Q. AND FROM HIS EXPERIENCE IN DRAWING THOSE PLANS AND 

OTHERWISE, YOU DISCOVERED THAT HE WAS QUITE FAMILIAR WITH 

     



    

  
  

  

  

4 » 413 

THE NORTH CAROLINA COUNTIES, PRECINCTS, DISTRICTS AND SO 

  

FORTH? 

A. THAT IS CORRECT. 

Q. NOW, THERE IS THE LAST SENTENCE OF THIS E-MAIL 

STATES: I HAVE MOVED GREENSBORO BLACK COMMUNITY INTO THE 

12TH AND NOW NEED TO TAKE ABOUT 60,000 OUT OF THE 12TH. 

DO YOU KNOW WHAT HE WAS REFERRING TO WHEN HE SAID HE 

HAD MOVED THE GREENSBORO BLACK COMMUNITY? 

A. I DO NOT SPECIFICALLY REMEMBER EVEN GETTING THIS 

E-MAIL. AND THAT IS NOT A SPECIFIC INSTRUCTION THAT I 

WOULD HAVE GIVEN TO HIM, BUT I AM PRESUMING THAT HE IS 

TALKING ABOUT MOVING THE PART OF GREENSBORO THAT WE HAD 

ALREADY DISCUSSED PREVIOUSLY. 

HE AND I AT SOME POINT HAD DISCUSSED MOVING THE 

GUILFORD COUNTY AREA INTO THE 12TH AND FOR ALL OF THE 

REASONS THAT I HAVE TALKED TO YOU ABOUT BEFORE, MAKING IT 

A STRONGER DEMOCRATIC DISTRICT, CONNECTING THE TRIAD. IT 

MADE EVERYBODY HAPPY. 

OBVIOUSLY, CONGRESSMAN COBLE’S DISTRICT WAS BETTER, 

CONGRESSMAN WATT CERTAINLY WANTED MORE OF HIS CONSTITUENTS 

THAN HE HAD BEFORE AND HE WAS CERTAINLY HAPPY GETTING MORE 

OF THOSE CONSTITUENTS AND HAPPY GETTING A HIGHER 

PERCENTAGE OF AFRICAN AMERICANS IN HIS DISTRICT. AND FOR 

ALL OF THOSE REASONS WE DECIDED TO GO INTO GUILFORD 

COUNTY. BUT I AM PRESUMING THAT THIS IS MR. COHEN’S 

  

  

 



  
  

  90 09 
DESCRIPTIVE TERM FOR THAT PART OF GUILFORD COUNTY THAT WE 

EVENTUALLY MOVED INTO THE 12TH DISTRICT. 

Q. NOW, THAT’S THE PART THAT WE HAVE BEEN -- WE LOOKED 

AT EARLIER THE MAP THAT WAS PREDOMINATELY BLACK? 

MS. SMILEY: OBJECTION. FORM OF THE QUESTION, 

UNLESS THERE’S A FOUNDATION THAT HE KNOWS. 

JUDGE THORNBURG: OVERRULED. 

A. YOU KNOW, I’M A LITTLE EMBARRASSED SITTING HERE. I'M 

NOT QUITE SURE WHETHER IT’S MAJORITY AFRICAN AMERICAN OR 

NOT, BUT I KNOW THERE’S A SUBSTANTIAL NUMBER OF AFRICAN 

AMERICANS IN THAT PART OF GUILFORD COUNTY THAT WE MOVED 

TO. 

Q. DO YOU REMEMBER HOW MANY AFRICAN AMERICANS WERE IN 

THE 12TH DISTRICT FROM GUILFORD COUNTY IN THE 1997 PLAN? 

A. I DON’T, SORRY. 

Q. DO YOU REMEMBER WHETHER YOU AND LESLIE WINNER BEGAN 

AS EARLY AS THE SUMMER OF 1996 TO LOOK AT THE DRAFTING 

PLANS? 

A. I KNOW THAT I DON’T REMEMBER THE EXACT TIME,. BUT I 

KNOW THAT WE STARTED WORKING ON SOME PLANS. LESLIE 

STARTED A LOT EARLIER THAN I DID. SHE WAS FAMILIAR WITH 

THE COMPUTER AND SHE MAY HAVE SUSPECTED THAT THE CASE WAS 

GOING TO COME DOWN. I WAS PROBABLY HOPING IT WOULDN'T 

COME DOWN LIKE IT ENDED UP DOING, SO I DIDN'T START 

WORKING WITH HER IN EARNEST UNTIL AFTER THE DECISION HAD     
   



  

  

  

  

ee °® 
AFTER THEY GOT INTO THE SESSION? 

A. YEAH. I DON’T KNOW ABOUT THIS PARTICULAR SURVEY. IN 

READING IT, YOU'VE GOTTEN ABOUT HALF OF THE FOLKS TO 

RESPOND TO IT, BUT I WOULD SAY THAT THE ISSUE OF PARTISAN 

BALANCE BECAME EXTREMELY IMPORTANT AS WE WENT THROUGH THE 

PROCESS. 

Q. NOW, DID THE ISSUE OF MINORITY REPRESENTATION 

MAINTAIN IMPORTANCE AS YOU WENT THROUGH THE PROCESS? 

A. RACIAL FAIRNESS WAS IMPORTANT TO THIS PLAN, YES. 

Q. WELL, BY "RACIAL FAIRNESS," WHAT DO YOU MEAN? 

A. I BELIEVED THAT WE NEEDED TO HAVE A MAJORITY/MINORITY 

DISTRICT IN THE 1ST DISTRICT, AND I THINK THAT THAT WENT A 

A LONG WAY TOWARD RACIAL FAIRNESS AND THAT THE PLAN 

OVERALL WAS FAIR TO AFRICAN AMERICANS ACROSS THE STATE. 

JUDGE BOYLE: SUPPOSE YOU WERE IN THE MINORITY 

AND THE OPPOSING PARTY IS IN THE MAJORITY AND THEY DECIDED 

TO REDISTRICT AND NOT ONLY WENT UP TO 50 PERCENT AFRICAN 

AMERICAN IN TWO DISTRICTS, BUT WENT ALL THE WAY UP TO, 

SAY, 80 PERCENT. WOULD THAT BE RACIAL FAIRNESS OR WOULD 

THAT BE RACIAL UNFAIRNESS? 

THEY COULD MAKE TWO DISTRICTS SAFE BEYOND BELIEF, 

BUT -- AND THAT COULD BE DONE FOR PARTISAN REASONS, IF YOU 

FOLLOW ME. IT’S A SLIPPERY SLOPE YOU GET ON WHEN YOU 

DECIDE YOU ARE GOING TO ENGAGE IN SOME USE OR 

ACKNOWLEDGMENT OF RACE. 

     



    

  
  

  

  

900 Py 425 

A. WELL, THAT'S TRUE, BUT I DID NOT READ THE SHAW V HUNT 
  

CASE TO SAY WE WERE DOING RACE. 

JUDGE BOLE: SO POLITICS COULD OVERRIDE RACE IF 

POLITICS WERE THE TRUE STAR OF YOUR DECISION? 

THE WITNESS: YES, IT COULD HAVE BEEN, COULD 

HAVE. 

JUDGE BOYLE: SOME PARTY COULD DECIDE THEY WOULD 

PUT 80 PERCENT MINORITY IN A DISTRICT AND THEREBY DEPRIVE 

THEIR OPPONENTS OF WHAT WOULD BE PREDICTABLE SUPPORT IN 

ANOTHER DISTRICT? 

THE WITNESS: WELL, I THINK IT’S VERY, VERY 

DIFFICULT TO DRAW A DISTRICT IN NORTH CAROLINA WITH AN 

EXTREMELY HIGH PERCENTAGE OF AFRICAN AMERICANS UNDER SHAW _ 

V_HUNT. 

JUDGE BOYLE: BUT YOU DID IT IN ‘92 IN DISTRICT 

1. ALL YOU WOULD HAVE TO DO WOULD BE TO HOPSCOTCH AROUND 

TO OTHER COUNTIES. IN THE 7TH, YOU COULD MAKE IT MORE 

MINORITY/MAJORITY THAN IT IS NOW. 

THE WITNESS: THE SUPREME COURT TOLD US WE 

COULDN'T DO THAT. 

JUDGE BOYLE: I THOUGHT WHEN YOU WENT BACK IN 

97, YOU FELT LIKE YOU HAD TO DO THAT IN ORDER TO PASS THE 

JUSTICE DEPARTMENT? 

THE WITNESS: NO, NOT WITH RESPECT TO THE 12TH. 

WITH RESPECT TO THE 1ST, WE THOUGHT THAT IT WAS IMPORTANT 

  

  

 



  
24 

25 

  

  

  

  

90 ry 426 

TO HAVE A MAJORITY/MINORITY DISTRICT; THAT WASN’T THE 

OVERRIDING FACTOR. IF WE COULD NOT DRAW A DISTRICT THAT 

LOOKED REASONABLY GEOGRAPHICALLY COMPACT AND MET THE OTHER 

CRITERIA, THEN WE WOULD NOT HAVE DRAWN A MAJORITY /MINORITY 

DISTRICT. BUT IT ALL FIT NICELY TOGETHER, SO THAT'’S WHY 

WE DID IT. 

JUDGE VOORHEES: NOW, YOU TESTIFIED THAT THE 

LEGISLATURE, IN COMING UP AND REVIEWING VARIOUS PLANS OVER 

THE PROCESS OF DEVELOPING THE ‘97 PLAN, WAS MINDFUL OF THE 

COURT DECISION IN THE SHAW CASE AND VOTING RIGHTS ACT AND 

  

THE OTHER FACTORS THAT YOU HAVE MENTIONED. 

NOW, WOULD IT BE ACCURATE TO SAY THAT THE VARIOUS 

MEMBERS OF YOUR COMMITTEE AND OF THE LEGISLATURE WERE 

COGNIZANT OF THE PERCENTAGES OF MINORS WHO WERE BEING 

PLACED INTO THE VARIOUS DISTRICTS, BUT PARTICULARLY THE 

12TH AND THE 1ST? 

THE WITNESS: YES. I MEAN, THAT WAS SOMETHING 

THAT WAS PRINTED OUT FOR EVERY DISTRICT AND YES, EVERYONE 

WOULD HAVE LOOKED AT THAT FIGURE AND SOME MEMBERS WOULD 

HAVE CARED MORE ABOUT IT THAN OTHERS. 

JUDGE VOORHEES: I MAY HAVE MISUNDERSTOOD YOU 

EARLIER. I THOUGHT YOU SAID YOU DIDN'T KNOW WHAT THE 

FINAL, PERCENTAGE WAS ON 12 WHEN THE ‘97 PLAN WAS ENACTED. 

THE WITNESS: I DID. I’M SURE THAT I DID. YES, 

I DID. 

  

  

 



  
24 

25 

  

  

  

  

00 eo® 427 

JUDGE VOORHEES: IF I THOUGHT OTHERWISE, I JUST 

MISUNDERSTOOD WHAT YOU SAID? 

THE WITNESS: I THINK HE ASKED ME WHAT 

PERCENTAGE OF AFRICAN AMERICANS WERE IN GUILFORD COUNTY 

THAT WE PUT INTO THE 12TH. I CAN'T REMEMBER. I DIDN'T 

REMEMBER THAT PARTICULAR FIGURE. 

JUDGE VOORHEES: I THINK THE QUESTION HAD TO DO 

WITH WHETHER YOU WERE TRYING -- THAT THE RELEVANT POWERS 

IN THE LEGISLATURE WERE TRYING TO KEEP THE NUMBER JUST 

UNDER 50 PERCENT? 

THE WITNESS: NO, THAT WAS NOT. 

JUDGE VOORHEES: YOU SAY YOU WEREN'T TRYING TO 

DO THAT? 

THE WITNESS: NO. 

JUDGE VOORHEES: IN SO SAYING, YOU ARE NOT 

SAYING THE LEGISLATURE WAS NOT AWARE OF THE PLANS 

DISCUSSED? 

THE WITNESS: WE DID KNOW, ABSOLUTELY WE KNEW. 

A LOT OF PEOPLE I THINK WERE HAPPIER THE AFRICAN AMERICAN 

PERCENTAGE WENT UP AS A RESULT OF GUILFORD COUNTY BEING 

MOVED INTO THE 12TH. 

JUDGE VOORHEES: WAS THERE A VIABLE MOTIVE 

WITHIN THE LEGISLATURE TO KEEP IT JUST BELOW 507? 

THE WITNESS: NO. 

JUDGE VOORHEES: THE FINAL PERCENTAGE WAS SHEER 

  

  

 



  
24 

25 

  

  

  

  

90 00 428 

HAPPENSTANCE? 

THE WITNESS: ABSOLUTELY. I MEAN, IF YOU WERE 

TRYING TO DO THAT, THEN YOU WOULD BE RUNNING AFOUL OF WHAT 

THE COURT TOLD US TO DO AND THAT’S JUST NOT WHAT WE DID. 

JUDGE VOORHEES: ALL RIGHT. 

BY MR. EVERETT: 

Q. IN ONE OF YOUR STATEMENTS I THINK MADE ON MARCH 25, 

1997, TO THE MEETING OF THE HOUSE COMMITTEE ON 

CONGRESSIONAL REDISTRICTING YOU SAID, AS I RECALL, SEE IF 

THIS SOUNDS RIGHT: I THINK OVERALL IT PROVIDES FOR A FAIR 

GEOGRAPHICAL, RACIAL AND PARTISAN BALANCE THROUGHOUT THE 

STATE OF NORTH CAROLINA. DOES THAT SOUND RIGHT WHAT YOU 

SAID? 

A. YES. 

Q. OKAY. 

MS. SMILEY: I’M GOING TO OBJECT UNLESS HE CAN 

SEE A COPY OF THIS. I’M NOT SURE WHETHER THE PART READ 

WAS REFERRING TO A DISTRICT OR ENTIRE PLAN, AND THE 

SENATOR MAY NOT BE ENTIRELY AWARE OF THE CONTEXT OF THE 

STATEMENT. 

JUDGE THORNBURG: SHOW OPPOSING COUNSEL WHAT YOU 

HAVE THERE. 

MS. SMILEY: I WOULD RATHER HAVE THE WITNESS SEE 

1T. 

JUDGE THORNBURG: I THOUGHT YOU SAID YOU WANTED 

  

  

 



  

  

  

900 00 429 

1 TO LOOK AT WHAT HE WAS READING. 

  

2 MS. SMILEY: I THOUGHT IT WAS UNFAIR FOR THE 

3 WITNESS NOT TO HAVE THE STATEMENT IN CONTEXT. 

hd JUDGE THORNBURG: THE WITNESS HADN'T OBJECTED. 

5 AS LONG AS HE CAN ANSWER THE QUESTION, LET’S MOVE THIS 

6 ALONG. I WANT US TO GET THROUGH WITH THIS WITNESS BEFORE 

7 WE CLOSE OUT OF COURT TODAY. I KNOW HE DOESN'T WANT TO 

8 COME BACK. 

9 BY MR. EVERETT: 

10 Q. I’M READING WHAT PURPORTS TO BE A COPY OF A STATEMENT 

11 YOU MADE TO THE MARCH 25, 1997, MEETING OF THE HOUSE 

12 COMMITTEE. I THINK THAT OVERALL IT PROVIDES FOR A FAIR 

13 GEOGRAPHICAL, RACIAL AND PARTISAN BALANCE THROUGHOUT THE 

14 STATE OF NORTH CAROLINA. NOW, WHAT WERE YOU REFERRING TO? 

15 WAS THAT THE PLAN THAT YOU WERE REFERRING TO? 

16 A. I WOULD ASSUME THAT THAT'S WHAT I WAS REFERRING TO. 

17 I SAID MANY TIMES I THOUGHT THE PLAN WAS RACIALLY FAIR 

18 AND -- 

19 Q. RACIALLY FAIR. WHAT DO YOU MEAN BY "RACIAL BALANCE"? 

20 A. I DON’T KNOW. I DON’T KNOW WHAT PARTICULAR CONTEXT I 

21 WAS MAKING. 

22 Q. WELL, LET ME ASK YOU THIS: DO YOU KNOW WHAT YOU MEAN 

23 BY "PARTISAN BALANCE"? 

24 A. YES, SIR. 

25 Q. WHAT DOES THAT MEAN?     
  

 



  
24 

25 

  
  

  

  

ry} °0__ = 
A. KEEPING THE 6/6 SPLIT. 

Q. ALL RIGHT. WHEN YOU USE THE TERM "RACIAL BALANCE," 

WOULDN'T IT FOLLOW THAT YOU WERE REFERRING TO MAINTAINING 

A 10 TO 2 RACIAL BALANCE BETWEEN WHITES AND AFRICAN 

AMERICANS IN CONGRESSIONAL DELEGATION? 

A. NO. I THINK I TESTIFIED IN THE DEPOSITION AND THE 

TESTIMONY EARLIER THAT AFRICAN AMERICANS WOULD HAVE A FAIR 

SHOT TO WIN BOTH THE FIRST AND THE 12TH DISTRICTS, AND I 

THINK THAT'S RACIALLY FAIR. 

YOUR HONOR WAS ASKING ME, I THINK YOU HAD GOTTEN THE 

IMPRESSION THAT WE DIDN'T PAY ANY ATTENTION TO RACE, BUT 

WE DID PAY ATTENTION TO RACE. THAT WAS ONE OF THE FACTORS 

THAT WAS CONSIDERED. BUT IT WAS CERTAINLY NOT THE 

PREDOMINATE FACTOR. I TALKED ABOUT WHY ALL THE DIFFERENT 

REASONS, WHY WE DID THE MECKLENBURG TO THE TRIAD DISTRICT 

AND CERTAINLY THE FACT THAT AN AFRICAN AMERICAN HAS A FAIR 

SHOT AT WINNING THAT DISTRICT IS PART OF RACIAL FAIRNESS 

AND I HAVE TESTIFIED TO THAT. 

Q. I WANT TO ASK YOU MORE ABOUT WHAT YOU MEAN BY "FAIR 

SHOT." WITH RESPECT TO THE EARLIER TESTIMONY YOU GAVE AND 

TESTIMONY YOU GAVE AT THE DEPOSITION, DIDN'T YOU SAY THAT 

YOU WERE =-- YOU HAD TO HAVE A MAJORITY BLACK FIRST 

DISTRICT? 

A. FOR A LOT OF REASONS I THOUGHT THAT WAS A VERY 

IMPORTANT THING TO DO. 

  

  

 



  
  

  

ae ry | 436 

1 JUDGE THORNBURG: IF WE HAVE THE STIPULATIONS, 

  

2 LET’S MOVE ALONG. IF WE DON’T, THEN IF THE SENATOR KNOWS, 

3 THAT'S FINE; IF HE DOESN'T, THAT’S FINE ALSO. 

4 MS. SMILEY: I’M NOT SURE IT’S A STIPULATION. I 

5 DON’T THINK ANYBODY EVER ESTABLISHED THAT THERE'S 60,000 

6 AFRICAN AMERICANS, IN FACT, MOVED AS A RESULT OF THIS 

7 MEMO. I DON’T THINK THE SENATOR KNOWS. 

8 MR. EVERETT: YOUR HONOR, WE KNOW THERE'’S 73,000 

S THERE. WE HEARD TESTIMONY, I BELIEVE YESTERDAY, FROM 

10 MR. WOOD AND OTHERS TO THE EFFECT, IF I RECALL CORRECTLY, 

1) APPROXIMATELY 60,000 IN GREENSBORO AND ABOUT 10 IN HIGH 

12 POINT. SO WE THINK THAT THERE’S A PREDICATE FOR IT. 

13 JUDGE THORNBURG: YES. 

14 MS. SMILEY: I’M SORRY. I DON’T SEE THE 

15 RELEVANCE OF THE QUESTION TO THE SENATOR WHO SAID HE 

16 DOESN’T KNOW THESE NUMBERS. 

17 JUDGE THORNBURG: SENATOR SAID HE DOESN'T KNOW. 

18 MOVE ONTO SOMETHING ELSE. 

19 BY MR. EVERETT: 

20 Q. I'M GOING TO ASK YOU IF INDEED THERE ARE 60,000 

21 AFRICAN AMERICANS IN GREENSBORO AND THE PRECINCTS ARE IN 

22 THE 12TH DISTRICT. DO YOU HAVE ANY INTERPRETATION OF THE 

23 SENTENCE AS TO "NOW NEED TO TAKE ABOUT 60,000 OUT OF THE 

24 12TH" IN THE E-MAIL WHICH WAS DIRECTED TO YOU? 

25 MS. SMILEY: OBJECT TO SPECULATION.       
 



  
24 

25 

  
  

  

  

iw 1 B 00 437 

JUDGE THORNBURG: OVERRULED, IF HE KNOWS. 

A. I DON’T KNOW EVERYTHING THAT -- I DON’T SPECIFICALLY 

REMEMBER THIS E-MAIL FOR ONE THING; AND SECONDLY, I DON’T 

KNOW ALL THE OTHER THINGS GOING ON AT THE TIME. BUT I 

WOULD PRESUME -- AND I KNOW I’M NOT SUPPOSED TO PRESUME, 

BUT I PRESUME THE 60,000 WE/RE TALKING ABOUT IS TOTAL 

POPULATION OF NEEDING. IF HE WENT TO GREENSBORO AND PUT 

AN AREA IN GREENSBORO INTO THE 12TH THAT NOW HE NEEDED TO 

TAKE 60,000 PEOPLE OUT OF THE 12TH IN ORDER TO MAKE THE 

POPULATION CORRECT. THAT’S WHAT I PRESUME. 

Q. WOULDN’T YOU ALSO PRESUME THAT THE GREENSBORO BLACK 

COMMUNITY APPROXIMATED 60,000 WHEN YOU READ THAT? 

A. NO, I WOULD NOT. WE CERTAINLY DON'T BELIEVE THEY 

WERE ALL AFRICAN AMERICANS IN GUILFORD COUNTY THAT WERE 

PUT INTO THE DISTRICT. WE LOOKED AT THE DEMOCRATIC 

LEANING DISTRICTS IN GUILFORD COUNTY, AND FOR ALL THE 

REASONS I STATED, WE PUT THEM IN THE 12TH. 

Q. DO YOU REMEMBER AT ANY TIME AROUND FEBRUARY 10 OF 

NOTICING A CHANGE BETWEEN A PLAN THAT HAD PREVIOUSLY BEEN 

FORMULATED BY MR. COHEN UNDER YOUR GENERAL DIRECTION AND 

THE PLAN THAT WAS PREPARED ON OR ABOUT FEBRUARY 107? 

A. I DON’T KNOW WHAT YOU MEAN BY THAT, NO. 

Q. ALL RIGHT. IN ANY EVENT, THE HISTORY OF THE PLANS 

THAT HAD BEEN INTRODUCED, I BELIEVE THE COURT HAS MANY OF 

THEM, WILL SHOW WHAT TOOK PLACE AT THAT TIME, WOULDN'T IT? 

  

  

 



   



  
  

  

90 » Qn 6 

MOVING THE CASE ALONG. 

MR. EVERETT: YOUR HONOR, I’M AFRAID MY EAR 

PHONES ARE NOT WORKING AS WELL AS I WOULD LIKE THIS 

MORNING. MS. WINNER, THEN, AS I UNDERSTAND IT, THE 

DEPOSITION WILL BE ADMITTED AND THE COURT WILL DETERMINE 

ITS RELEVANCE AND RELIABILITY AND WE’RE SATISFIED AND HAVE 

NO OBJECTION TO THAT. 

JUDGE THORNBURG: THAT WILL BE FINE. 

MR. EVERETT: WE HAD DESIGNATED PORTIONS OF HER 

DEPOSITION, AS I RECALL, IN THE PRETRIAL ORDER SO THAT MAY 

BE OF SOME ASSISTANCE AS TO THE PORTIONS THAT WE BELIEVE 

ARE RELEVANT. WITH RESPECT TO REPRESENTATIVE MCMAHAN, 

WHAT WAS THE RULING, YOUR HONOR? 

JUDGE THORNBURG: HE WILL COME AROUND FOR 

CROSS-EXAMINATION AND WE'LL ACCEPT HIS AFFIDAVIT AND HIS 

DEPOSITION SUBJECT TO REVIEW BY THE COURT. 

W. EDWIN MCMAHAN, BEING FIRST DULY SWORN, TESTIFIED AS   

FOLLOWS DURING CROSS EXAMINATION: 
  

BY MR. EVERETT: 

Q. REPRESENTATIVE MCMAHAN, I JUST WANT TO ASK YOU A FEW 

QUESTIONS. YOU, OF COURSE, ARE REPRESENTATIVE MCMAHAN AS 

IDENTIFIED IN THE DEPOSITION. 

WITH RESPECT TO THE FORMULATION OF THE 1997 PLAN AND 

ITS BOUNDARIES, TO THE EXTENT THERE WAS A DIFFERENCE IN 

PARTICIPATION IN THE ORIGIN OF THE PLAN, WAS IT YOUR 

     



  
24 

25 

00 e® 463 
  

  

RECOLLECTION THAT THE FINAL DETAILS OF THAT EMERGED MORE 

FROM THE SENATE COMMITTEE OR FROM YOUR COMMITTEE? 

A. MY RECOLLECTION IS THAT IT ACTUALLY CAME PROBABLY 

MORE FROM THE CHAIRS OF THE TWO COMMITTEES NEGOTIATING 

INDIVIDUALLY. 

Q. ALL RIGHT. AND WITH RESPECT TO YOUR DEPOSITION, AT 

THE TIME YOU HAD RATHER LIMITED RECOLLECTION OF SOME OF 

THE EVENTS, AS I RECALL, ARE THERE ANY OF THE ANSWERS —- 

HAVE YOU REREAD YOUR DEPOSITION IN PREPARATION FOR THE 

APPEARANCE TODAY? 

A. YES, SIR, I HAVE. 

Q. IS THERE ANYTHING IN THE DEPOSITION THAT YOU DID AT 

THE TIME OF THE DEPOSITION YOU DID NOT RECALL THAT YOU NOW 

RECALL MORE FULLY? 

A. HAVING READ THE DEPOSITION AND SOME OF THE ANSWERS 

THAT -- WELL, ACTUALLY, NO, I THINK THE DEPOSITION IS A 

FAIR REPRESENTATION OF WHAT I INTENDED TO SAY. 

Q. AND AT WHAT POINT, WITH RESPECT TO THE 1ST DISTRICT 

IN THE PLAN AT THAT TIME, YOU INDICATED THAT IN ITS 

FORMULATION RACE WAS A PREDOMINATE FACTOR -- WELL, WAS A 

HUGE FACTOR, AS I BELIEVE YOU STATED. IS THAT STILL YOUR 

RECOLLECTION? 

A. DISTRICT 1, NO QUESTION IS BECAUSE OF THE MAKEUP OF 

THE HOUSE ON OUR SIDE AND THE NUMBER OF MINORITIES THAT WE 

HAD TO DEAL WITH ON THE HOUSE SIDE. CERTAINLY, WHEN WE 

  

  

 



  

  
  

  

[ 1 00 
LOOKED AT DISTRICT 1, RACE WAS A FACTOR AND WE DETERMINED 

EARLY ON THAT WE COULD DRAW THAT DISTRICT AND MAKE IT MORE 

COMPACT AND MORE GEOGRAPHICALLY COMPACT AND ALSO ADDRESS 

THE RACE ISSUE. 

Q. BUT WAS IT YOUR BELIEF THAT IT WAS NECESSARY TO HAVE 

A MAJORITY/MINORITY DISTRICT IN ORDER TO OBTAIN 

PRECLEARANCE? 

YES, SIR, ONE DISTRICT, YES, SIR. 

AND THAT WAS THE ONE IN THE NORTHEAST? 

THAT'S CORRECT, SIR. 

SO IN YOUR INSTRUCTIONS TO MR. JONES, WHO WAS YOUR 

RESIDENT, DID YOU INFORM HIM OF THIS PARTICULAR 

DETERMINATION? 

A. AGAIN, WE LOOKED AT ONE, IT WAS NEVER REALLY A BIG 

ISSUE AS FAR AS WHETHER IT WOULD BE A MAJORITY/MINORITY 

DISTRICT BECAUSE WHAT WE WERE DOING IS PRIMARILY LOOKING 

AT IT TO MAKE IT MORE COMPACT. AND IT CERTAINLY, FROM THE 

VERY BEGINNING, AS LINWOOD JONES DREW THE MAP AND WE 

TALKED WITH THE SENATOR AND LOOKED AT IT, IT COULD BE 

DONE, THE MAJORITY/MINORITY, AS WELL AS GEOGRAPHICALLY 

COMPACT. 

Q. NOW, WAS IT THEN YOUR TESTIMONY THAT THE OBJECTIVE, 

THE PURPOSE OF HAVING A MAJORITY, BLACK MAJORITY AFRICAN 

AMERICAN DISTRICT IN THE NORTHEAST WAS A PURPOSE THAT YOU 

WERE NOT GOING TO COMPROMISE. YOU WERE GOING TO GET THERE 

     



  

24 

25 

  

00 00 465 
  

  

  

ONE WAY OR THE OTHER? 

A. WELL, IT WAS ONE OF THE FACTORS CERTAINLY THAT WE 

NEEDED TO ADDRESS. 

Q. AND DID YOU HAVE A BELIEF FROM WHAT YOU HAD BEEN 

INFORMED THAT WITHOUT THAT PARTICULAR DISTRICT IT WOULD 

NOT BE =-- THE PLAN WOULD NOT BE PRECLEARED IF THAT WERE 

NOT A MAJORITY BLACK DISTRICT? 

A. I CERTAINLY RECALL THAT WE FELT, IN ORDER TO GET 

PRECLEARANCE, IT WOULD NEED TO BE A MAJORITY /MINORITY 

DISTRICT. 

Q. FINALLY, DID YOU DEVELOP ALTERNATIVES WHICH YOU FELT 

WERE MORE COMPACT THAN THOSE THAT WERE FINALLY ADOPTED FOR 

A MAJORITY DISTRICT? 

A. WOULD YOU REPEAT THE QUESTION? 

Q. IN OTHER WORDS, IN YOUR PLANNING, DID YOU PERCEIVE 

WAYS OF GETTING TO A MAJORITY BLACK DISTRICT THAT WERE 

MORE COMPACT THAN THOSE THAT WERE IN THE PLAN THAT WAS 

MORE FINAL ADOPTED? 

A. WE WERE DEALING WITH A SITUATION WHERE WE NEEDED TO 

SATISFY A LOT OF PEOPLE TO GET THE PLAN APPROVED. SO EVEN 

THOUGH WE MIGHT HAVE BEEN ABLE TO DRAW IT MORE COMPACT, IT 

WAS OTHER FACTORS THAT LED TO US DRAWING IT THE WAY WE 

DID. 

MR. EVERETT: I HAVE NO FURTHER QUESTIONS. 

JUDGE BOYLE: WAS IT YOUR UNDERSTANDING, AS YOU 

  

  

 



  
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25 

  
  

  

  

00 1 ] 466 

APPROACHED REDISTRICTING IN 1997, THAT THE 1ST DISTRICT, 

AS COMPOSED IN THE ‘92 PLAN, WAS FACIALLY IN VIOLATION OF 

THE CONSTITUTION? 

THE WITNESS: NO, SIR, WE DID NOT LOOK AT 

DISTRICT 1 AS BEING IN VIOLATION OF THE CONSTITUTION. 

JUDGE BOYLE: HOW ABOUT DISTRICT 12? 

THE WITNESS: WE KNEW THAT THE THREE JUDGE PANEL 

HAD RULED IT TO BE IN VIOLATION OF THE CONSTITUTION IN 

DISTRICT 12. 

JUDGE BOYLE: NO, THEY HADN'T, THE SUPREME COURT 

THE WITNESS: I’M SORRY. 

JUDGE BOYLE: SO THE U. S. SUPREME COURT TOLD 

YOU DISTRICT 12 VIOLATED THE EQUAL PROTECTION CLAUSE AND 

YOU COULD NOT CONTINUE TO USE THAT? 

THE WITNESS: THAT’S CORRECT, SIR. 

JUDGE BOYLE: THAT'’S WHY YOU WERE IN THE 

REDISTRICTING EXERCISE IN ‘97? 

THE WITNESS: YES, SIR. 

JUDGE BOYLE: BUT AS TO DISTRICT 1, WITHOUT THE 

SUPREME COURT DIRECTLY SPEAKING TO THAT, WAS IT THE SENSE 

AND UNDERSTANDING OF THE HOUSE THAT THAT DISTRICT WAS 

LIKEWISE IN VIOLATION OF THE U. S. CONSTITUTION AS 

COMPOSED? 

THE WITNESS: SIR, AS I THINK I SAID IN MY 

  

  

 



  
  

  

  

an 00 
DEPOSITION, WHEN I LOOKED AT DISTRICT 1, HAVING KNOWN THE 

RULING ON DISTRICT 12, IN MY MIND AS A LAYMAN AND NOT AN 

ATTORNEY, IT CERTAINLY APPEARED TO ME THAT WE DID NEED TO 

MAKE SOME CHANGES IN DISTRICT 1 THE WAY IT HAD BEEN DRAWN 

IN 1992. 

JUDGE BOYLE: DOES THAT MEAN THERE WAS A 

RECOGNITION YOU COULD NOT REPROMULGATE DISTRICT 1 IN ITS 

THEN EXISTING FORM? DO YOU WANT ME TO SAY IT AGAIN? 

THE WITNESS: PLEASE. 

JUDGE BOYLE: WAS THERE THE SENSE OR THE 

UNDERSTANDING OF THE HOUSE THAT YOU WOULD NOT BE ABLE TO 

EFFECTIVELY OR CONSTITUTIONALLY REPROMULGATE, READOPT, 

DISTRICT 1 IN THE SAME FORM AS IT EXISTED IN THE ‘92 PLAN? 

THE WITNESS: WELL, AGAIN, WE FELT IT WAS OUR 

RESPONSIBILITY TO LOOK AT THE MAP AND WHERE WE COULD MAKE 

CHANGES AND MAKE FEWER COUNTIES DIVIDED, NO PRECINCTS 

HOPEFULLY DIVIDED, WHICH CERTAINLY INCLUDED DISTRICT 1. 

BECAUSE OF THE WAY IT WAS DRAWN, IT WENT ALL THE WAY 

ACROSS THE EASTERN PART OF THE STATE. WE FELT IT WAS OUR 

RESPONSIBILITY TO MAKE CHANGES, YES, SIR. 

JUDGE BOYLE: THANK YOU. 

JUDGE THORNBURG: YOUR CONCERN AT THAT POINT WAS 

PRIMARILY COMPACTNESS AS OPPOSED TO RACIAL MATTERS? 

THE WITNESS: YES, SIR. THE BIGGEST CONCERN WE 

HAD, WHEN SENATOR COOPER AND I FIRST SAT DOWN AND TALKED 

     



  
  

  

  

00 090 
ABOUT IT WAS, OF COURSE, MAINTAINING THE BALANCE. THE 6/6 

BALANCE WAS VERY, VERY IMPORTANT AS WELL AS GEOGRAPHIC 

COMPACTNESS, BECAUSE AT THAT TIME THERE WERE LIKE 80 

COUNTIES DIVIDED AND A NUMBER OF PRECINCTS, MAYBE 80 

PRECINCTS WERE DIVIDED, BUT A LOT OF DIVISION THERE WE 

FELT LIKE WE NEEDED TO CORRECT. 

JUDGE THORNBURG: THANK YOU. 

MR. EVERETT: MAY I ASK A COUPLE FOLLOW UP 

QUESTIONS TO JUDGE BOYLE, SO THERE’S NO MISUNDERSTANDING? 

JUDGE THORNBURG: YES, SIR. 

BY MR. EVERETT: 

Q. I’M TRYING TO FIND -- HERE IS THE 1992 PLAN AND UP 

HERE IS THE FIRST DISTRICT. YOU ARE NOT A LAWYER? 

A. (WITNESS NODS HEAD.) 

Q. YOU WERE DEALING WITH MR. COOPER, WHO WAS A LAWYER; 

YOU HAD MR. LINWOOD JONES, WHO WAS A LAWYER. I’M GOING TO 

PUT IT TO YOU SIMPLY WITH RESPECT TO THE 1ST DISTRICT IN 

THE 1992 PLAN, WHICH EXTENDED FROM THE VIRGINIA BORDER 

ALMOST DOWN TO SOUTH CAROLINA. DIDN'T YOU, ON THE BASIS 

OF WHAT YOU WERE TOLD WHEN YOU BECAME CHAIR OF THAT 

COMMITTEE, BELIEVE THAT THAT WAS AN UNCONSTITUTIONAL 

DISTRICT? 

MS. SMILEY: OBJECT, ASKING HIM FOR LEGAL 

OPINION, YOUR HONOR. 

JUDGE THORNBURG: OVERRULED. 

     



  

  
  

  

  

up aw 469 

A. JUDGE EVERETT, AGAIN, I COULD LOOK AT THAT DISTRICT, 

AND KNOWING THE PROBLEMS WITH DISTRICT 12, THAT WE NEEDED 

TO ALSO TRY TO SEE IF WE COULD MAKE IT MORE GEOGRAPHICALLY 

COMPACT. THAT'S WHAT WE TRIED TO DO. WE COULD DO BOTH, 

YOU KNOW, MAKE IT MORE COMPACT AS WELL AS SATISFY THE 

REQUIREMENTS ON RACIAL FAIRNESS. 

Q. I HATE TO PRESSURE YOU FOR A YES OR NO ANSWER, BUT 

ARE YOU ABLE TO GIVE A YES OR NO ANSWER TO WHETHER YOU 

THOUGHT IT WAS UNCONSTITUTIONAL AT THAT TIME? 

A. I CERTAINLY FELT THAT IT NEEDED TO BE REDRAWN. 

WHETHER IT WAS BECAUSE IT WAS UNCONSTITUTIONAL OR BECAUSE 

YOU COULD LOOK AT IT AND TELL IT NEEDED TO BE REDRAWN, I’M 

NOT SURE, JUDGE EVERETT. 

Q. YOU ARE SAYING YOU ARE NOT SURE WHETHER YOU HAD A 

BELIEF ONE WAY OR THE OTHER? 

A. NO, SIR, I’M NOT. 

Q. LET ME ASK YOU THIS: WITH RESPECT TO THIS DISTRICT, 

WHICH HAD BEEN HELD UNCONSTITUTIONAL BY THE SUPREME COURT, 

WAS IT YOUR BELIEF THAT YOU COULD RECONSTITUTE THIS 

DISTRICT WITHOUT BEING SUBJECT TO ANY ISSUE AS TO 

CONSTITUTIONALITY IF YOU GOT THE PERCENTAGE OF AFRICAN 

AMERICANS BELOW 50 PERCENT? 

A. JUDGE EVERETT, THE PERCENTAGE WAS NOT THE FACT THAT 

WE CONSIDERED. IT WAS PRIMARILY THE FACT THAT WE FELT THE 

REASON IT WAS UNCONSTITUTIONAL WAS BECAUSE, AGAIN, THE WAY 

  

  

 



  
24 

25 

  
  

  

  

IT WAS DRAWN AND SO EVEN THOUGH, YOU KNOW, THE RACIAL 

FAIRNESS ENTERED INTO IT, IT WAS NOT ONE -- IT WAS ONE OF 

A NUMBER OF FACTORS. I THINK GEOGRAPHIC COMPACTNESS WAS 

MORE IMPORTANT, WE FELT, THAN THE RACIAL PERCENTAGE. 

Q. LET ME ASK YOU THIS, THEN: WHEN YOU GOT READY TO 

PRESENT THE PLAN TO THE HOUSE, DIDN'T YOU, IN FACT, TELL 

THEM THAT A REASON FOR ALLOWING OR HAVING THE NEW PLAN, 

WHICH I BELIEVE IS RIGHT HERE, THE REASON FOR ALLOWING IT 

WAS THAT IT WAS BELOW 50 PERCENT AFRICAN AMERICAN AND, 

THEREFORE, THE SHAPE DIDN'T MATTER? 

A. JUDGE EVERETT, I WAS ASKED THAT IN MY DEPOSITION. I 

WENT BACK AND READ THE MINUTES. I DID SAY THAT ON THE 

FLOOR AS ONE OF THE FACTORS. I’M NOT AN ATTORNEY. I 

DIDN’T MEAN TO INTERPRET THAT TO MEAN IT’S NOW 

CONSTITUTIONALLY CORRECT. I QUITE HONESTLY, YOU KNOW, 

SENATOR COOPER MADE THAT STATEMENT AND I HAD PICKED UP ON 

THAT AND THAT WAS THE REASON THAT I ACTUALLY MADE THAT 

STATEMENT. 

Q. SO ON THE BASIS OF WHAT SENATOR COOPER TOLD YOU OR 

STATEMENT THAT HE HAD MADE, AND IN TRYING TO PERSUADE THE 

HOUSE MEMBERS TO ADOPT THE PLAN, YOU SO INFORMED THEM WITH 

RESPECT TO THE 12TH DISTRICT IN THE 1997 PLAN? 

A. AS FAR AS THE RACIAL PERCENTAGE? 

Q. YES. 

A. I THINK THE QUESTION WAS ASKED, WHAT WAS THE RACIAL 

  

  

 



  

24 

25 

      

  

PERCENTAGE? I CAN ASSURE YOU, THOUGH, THAT WAS NOT THE 

PRIMARY OBJECTIVE THAT WE HAD IN DRAWING 12, WAS TO TRY TO 

MAINTAIN A CERTAIN PERCENTAGE OF MINORITIES. 

Q. DIDN’T YOU SPECIFICALLY SAY THAT YOU HAD GOTTEN IT UP 

TO 46 PERCENT OR ABOVE 46 PERCENT? DIDN'T YOU TELL THE 

MEMBERS OF THE HOUSE THAT YOU HAD DONE THE BEST YOU COULD 

IN ORDER TO SATISFY THE DEPARTMENT OF JUSTICE AND SATISFY 

THE COURTS? 

A. WELL, AGAIN, RACIAL FAIRNESS WAS AN ISSUE AND I HAD 

TO DEAL WITH THE HOUSE THAT HAD 18 MINOR MEMBERS, SO IT 

WAS CERTAINLY AN ISSUE AND PEOPLE HAD ASKED THE QUESTION 

OF WHERE THE PERCENTAGE WAS, BUT, AGAIN, OUR FIRST 

ATTEMPT, I THINK WAS LIKE 40 PERCENT. WE WERE TRYING TO 

MAKE IT AS REPUBLICAN AS POSSIBLE AND MAKE IT FAIR FOR 

REPUBLICANS TO HAVE A CHANCE, BUT, AGAIN, IT WAS NOT THE 

MAIN ISSUE, THE PERCENTAGE, BUT I DID ANSWER THE QUESTION 

THAT IT WAS 46 PERCENT. 

Q. SO IT WENT UP TO 40 PERCENT WHERE YOU PROPOSED TO 

HAVE IT UP TO 46 PERCENT AND THAT WAS AT PERSISTENCE OF 

THE DEMOCRATS? 

A. THE SENATE PLAN WAS 46 PERCENT. 

Q. INSOFAR AS THE MEMBERS OF THE HOUSE WERE CONCERNED, 

AFRICAN MEMBERS, WERE THEY IN FAVOR, AS EXPRESSED TO YOU, 

AS HAVING THE HIGHER PERCENTAGE OF AFRICAN AMERICANS IN 

THE 12TH DISTRICT AS POSSIBLE? 

  

  

 



      0 We a 

i § A. YES, SIR, THEY WERE. 

  

2 Q. AND WITH RESPECT TO THE 1ST DISTRICT, WAS THAT THE 

3 SAME? 

4 A. YES, SIR. 

5 Q. AND THEY WERE A VERY SIGNIFICANT FORCE IN THE HOUSE 

6 AT THAT TIME? 

7 A. THEY WERE CERTAINLY A FORCE THAT I HAD TO DEAL WITH 

8 ALONG WITH A LOT OF OTHER FACTORS. 

9 Q. AND THE PARTISAN BREAKDOWN OF THE HOUSE AT THAT TIME 

10 WAS 61/59? 

11 A. YES, SIR, THAT'S CORRECT. 

12 MR. EVERETT: THANK YOU, YOUR HONORS. 

13 JUDGE VOORHEES: NOW, YOU SAID THAT YOU FELT THE 

14 1ST DISTRICT NEEDED TO BE REDRAWN FROM THE ‘92 PLAN AND 

15 THAT YOU WEREN'T SURE WHETHER THAT WAS BECAUSE OF 

16 CONSTITUTIONAL CONCERN OR BECAUSE IT JUST NEEDED TO HAVE 

17 MORE COMPACT SHAPE? 

18 THE WITNESS: YES, SIR. WE, OF COURSE, DID NOT 

19 GET ANY KIND OF RULING ON ONE, BUT IT WAS ONLY A 12. BUT 

20 WHEN WE LOOKED AT THE MAP AGAIN, WE WERE TRYING TO LOOK AT 

21 THE MAP OVERALL, PRIMARILY TO ADDRESS 12, BUT THAT 

22 AFFECTED THE OTHER DISTRICTS. AND WHEN I LOOKED AT ONE, 

23 IT WAS FELT BY SENATOR COOPER AND MYSELF IT DID NEED TO BE 

24 LOOKED AT AND REDRAWN BECAUSE OF THE WAY IT WAS 

25 CONFIGURED.     
  

 



      

  

oe Na 
JUDGE VOORHEES: THE REASON FOR THAT IS THE 

SUPREME COURT SENT A CONCERN ABOUT SHAPE? 

THE WITNESS: YES, SIR. 

JUDGE VOORHEES: SO WHETHER IT WAS A FUNDAMENTAL 

CONCERN OR SPECIFIC CONCERN THAT THE SUPREME COURT VOICED 

ABOUT SHAPE, THAT'S STILL THE REASON WHY YOU FELT IT HAD 

TO BE RECONFIGURED? 

THE WITNESS: AGAIN, I’M NOT AN ATTORNEY; THAT'S 

MY INTERPRETATION. 

JUDGE VOORHEES: WOULD THAT HAVE BEEN THE SENSE 

OF YOUR COLLEAGUES, AS FAR AS YOU COULD TELL? 

THE WITNESS: YES, SIR, 1 BELIEVE SO. 

JUDGE THORNBURG: ARE THERE ANY QUESTIONS BY 

DEFENSE THAT AREN’T COVERED IN THE DEPOSITION AND THE 

AFFIDAVIT OR BY WAY OF EXPLANATION OF WHAT’S BEEN ASKED 

HERE THIS MORNING? 

MS. HARRELL: WE WOULD LIKE TO ASK A FEW, YOUR 

HONOR. IF I MAY APPROACH THE WITNESS AND GIVE HIM A 

NOTEBOOKS? HE’S NOT GOING TO USE MOST OF THEM. THIS WAS 

PREPARED WAY IN ADVANCE. 

JUDGE THORNBURG: ALL RIGHT. 

REDIRECT EXAMINATION 
  

BY MS. HARRELL: 

Q. REPRESENTATIVE MCMAHAN, YOU REFERRED TO YOUR PLAN A 

FEW MOMENTS AGO. WERE YOU SPEAKING ABOUT THE PLAN THAT 

     



    
  

  

ee o® 
YOU PRESENTED TO THE HOUSE COMMITTEE? 

A. YES, SIR -- YES, MA'AM. 

Q. AND COULD YOU LOOK AT THE JOINT EXHIBIT 105, 

REPRESENTATIVE MCMAHAN? 

A. OKAY. 

Q. AND IS THAT LABELED HOUSE SELECTING ‘97 CONGRESSIONAL 

PLAN 8.1? 

A. YES, IT.18. 

Q. AND IS THAT THE PLAN THAT YOU WERE SPEAKING ABOUT 

THAT YOU PRESENTED TO THE HOUSE COMMITTEE? 

A. MS. HARRELL, I BELIEVE SO. YOU KNOW, WHEN YOU LOOK 

AT THESE MAPS, IT TAKES A LITTLE BIT OF TIME TO MAKE SURE, 

BUT I BELIEVE THAT’S IT. I DO RECALL IT WAS LABELED 8.1. 

Q. ALL RIGHT. AND DID YOU REFER TO THE PERCENTAGE OF 

MINORITIES IN YOUR SENATE DISTRICT 12 IN YOUR HOUSE PLAN? 

A. AS I RECALL, IT WAS 40 PERCENT HAVING READ THE 

INFORMATION IN THE MINUTES OF THE MEETINGS. 

Q. ALL RIGHT. AND WERE YOU TRYING TO MAKE THE SENATE 

12TH DISTRICT IN YOUR PLAN MORE COMPETITIVE OR LESS 

COMPETITIVE FOR REPUBLICANS? 

A. WE WERE TRYING, OBVIOUSLY, TO MAKE IT MORE 

COMPETITIVE FOR REPUBLICANS. 

Q. AND WHEN YOU BECAME CHAIRMAN OF THE HOUSE 

CONGRESSIONAL REDISTRICTING COMMITTEE, DID YOU MEET EARLY 

ON WITH SENATOR COOPER? 

     



  

24 

25 

      

  

ot ah . 
A. NES, WE DID. 

Q. AND BASED ON YOUR UNDERSTANDING WITH YOUR MEETING 

WITH SENATOR COOPER, WHAT WERE YOUR OVERALL GOALS IN 

TRYING TO STEER THIS PLAN THROUGH THE COMMITTEE? 

A. AGAIN, HE AND I SAT DOWN AND TALKED ABOUT WHAT WE 

THOUGHT WAS NECESSARY IN ORDER TO GET THIS APPROVED. I 

DON’T THINK VERY FEW PEOPLE IN THE LEGISLATURE FELT THAT 

WE COULD DO IT, THAT WE COULD GET THE BODIES TOGETHER 

BECAUSE, OF COURSE, THE HOUSE WAS REPUBLICAN AND THE 

SENATE WAS DEMOCRATIC. SO WE SAT DOWN AND SAID LET’S TRY 

TO SEE WHAT’S IMPORTANT TO YOU AND IMPORTANT TO ME AND SEE 

IF WE CAN BRING IT TOGETHER. 

SEVERAL OF THE FACTORS, THE PRIMARY FACTORS, OF 

COURSE, HE AND I BOTH AGREED ON WAS MAINTAINING THE 6/6 

BALANCE, WHICH CURRENTLY EXISTED IN THE CONGRESSIONAL 

DELEGATION. AND WE NEEDED TO MAKE SURE WE DID THAT. WE 

WANTED TO TRY TO LOOK AT GEOGRAPHIC COMPACTNESS AND DIVIDE 

AS FEW COUNTIES AND NO PRECINCTS, IF IT WAS POSSIBLE. IT 

ENDED UP WE DID A GOOD JOB ON THAT. WE TALKED ABOUT 

RACIAL FAIRNESS. WE KNEW WE WOULD HAVE TO ADDRESS TO 

THAT. ON THE HOUSE SIDE, CERTAINLY HAD A SUBSTANTIAL 

NUMBER OF MINORITIES I WOULD HAVE TO DEAL WITH AND TALK TO 

AND WE WANTED TO BE FAIR. 

SO GEOGRAPHIC COMPACTNESS AND, OF COURSE, THE 

INCUMBENCY ISSUE. WE WERE -- OBVIOUSLY KNEW THAT, YOU 

  

  

 



  

    
  

  

A a 77 
BEFORE YOU? 

A. YES. 

Q. IS THIS A PLAN BEFORE YOU CONSIDERED YOUR A-1 TO THE 

HOUSE COMMITTEE? 

A. YES. THIS WAS, I THINK, THE FIRST PLAN THAT LINWOOD 

JONES AND I REDREW. 

Q. AND WITH REGARD TO TRYING TO WORK WITH MINORITY 

MEMBERS OF THE HOUSE, WERE YOU ABLE TO PERSUADE THEM TO 

SUPPORT YOUR BILL? 

A. AS IT TURNED OUT, THE MAJORITY OF THEM VOTED AGAINST 

IT ON THE HOUSE SIDE. 

Q. AND OVERALL, WOULD YOU SAY THAT YOU WERE ABLE TO 

ACCOMPLISH THE GOALS THAT YOU STARTED OUT WITH REGARD TO 

THE REDISTRICTING PROCESS? 

A. YES, I WAS VERY PLEASED THAT WE WERE ABLE AND I THINK 

ACTUALLY SENATOR COOPER WAS SURPRISED THAT WE WERE ABLE TO 

GET IT APPROVED WITH THE NUMBERS WE DID ON THE HOUSE SIDE. 

JUDGE VOORHEES: WHAT WERE THE NUMBERS, DO YOU 

RECALL? 

THE WITNESS: SIR, I BELIEVE WE HAD 85 POSITIVE 

VOTES, AS I RECALL. I KNOW IT WAS 55 REPUBLICANS, I 

BELIEVE, THAT VOTED FOR IT ON OUR SIDE, BUT I BELIEVE LIKE 

85. 

BY MS. HARRELL: 

Q. AND DID YOU FEEL LIKE THE BASIC OBJECTIVES THAT YOU 

  

  

 



  

  
  

  

  

wih oP 478 

STARTED OUT WITH WERE MET IN THE PLAN? 

A. YES, MA’'AM, I DO. 

JUDGE THORNBURG: DID YOU SAY A MAJORITY OF THE 

MINORITY MEMBERS OF THE HOUSE VOTED AGAINST? 

THE WITNESS: YES, SIR, THEY DID, WHICH ACTUALLY 

WAS A SURPRISE, BECAUSE I TRIED TO WORK WITH THEM AS WE 

WENT ALONG, BUT THEY OFFERED A NUMBER OF AMENDMENTS ON THE 

FLOOR BECAUSE THEY WERE DISTURBED. THEY DIDN'T THINK 

DISTRICT 12 WAS STRONG ENOUGH, YOU KNOW, THE MINORITY, 

THEY DIDN’T HAVE ENOUGH INFLUENCE IN DISTRICT 12. SO THEY 

OFFERED AMENDMENTS ON THE FLOOR TO ACTUALLY PUT IT BACK 

MORE LIKE IT EXISTED ON THE ‘92 PLAN, BUT WE WERE ABLE TO 

DEFEAT THOSE AMENDMENTS. 

JUDGE BOYLE: WERE THEY TRYING TO ADD DURHAM 

BACK TO IT? 

THE WITNESS: I BELIEVE REPRESENTATIVE MICHAUX 

BROUGHT IT BACK TO DURHAM, I BELIEVE SO. 

JUDGE BOYLE: THEY DIDN'T CARE ABOUT LOSING 

GASTONIA. 

THE WITNESS: I THINK THAT'S CORRECT. 

MR. EVERETT: MAY I ASK ONE OR TWO OTHER 

QUESTIONS? I'LL BE BRIEF. 

JUDGE THORNBURG: ALL RIGHT, SIR. 

RECROSS EXAMINATION 
  

BY MR. EVERETT: 

  

  

 



  
24 

25 

pe jy 479 
    

  

  

Q. THE QUESTIONS WERE ASKED OF YOU BY MS. HARRELL ABOUT 

THE AREA OF DISPUTE, MAJOR CONTROVERSY THAT WAS OVER 

AROUND 2 AND 4? 

A. J YFS,. SIR. 

Q. SO THEN WOULD IT BE CORRECT THAT 12, THE IDEA OF 12 

WAS 46 PERCENT, OR THEREABOUTS, WAS ACCEPTED AS A STARTING 

POINT NOT TO BE COMPROMISED. YOU ARE NOT GOING TO 

COMPROMISE THAT PART; THE BIG DISPUTE WAS TO 2 AND 4? 

MS. SMILEY: OBJECTION. 

JUDGE THORNBURG: OVERRULED. 

A. THE PERCENTAGE WAS NOT -- WE DIDN'T DISCUSS, SENATOR 

COOPER AND I, THE ACTUAL PERCENTAGE THAT NEEDED TO BE. 

Q. WHATEVER IT WAS, THIS WAS SORT OF A STARTING POINT TO 

HAVE THIS DISTRICT WITH WHATEVER THE PERCENTAGE OF AFRICAN 

AMERICANS WAS? 

A. WELL, AGAIN, WHAT WE TRIED TO DO WAS LOOK AT IT FROM 

THE GEOGRAPHIC COMPACTNESS TO MAKE IT ACCEPTABLE IN THE 

FACT OF NOT MAKING IT ANY LONGER FROM ONE END TO THE OTHER 

THAN OTHER DISTRICTS WERE. AND, AGAIN, THE ACTUAL 

PERCENTAGE CAME OUT AT THE END BECAUSE PEOPLE ASKED FOR 

IT, BUT IT WAS NOT WHAT SENATOR COOPER AND I DISCUSSED AS 

ONE OF THE CRITERIAS. 

Q. I WANTED TO BE SURE I UNDERSTAND THEN. YOU ARE 

SAYING THIS 12TH DISTRICT, AS SHOWN HERE, IS NOW 

GEOGRAPHICALLY COMPACT? 

  

  

 



   



  

Republican Victories in Forsyth County Precincts Abutting District 12 APPENDIX 7 

  

    
  

  
  

    

  

  

  
        

Legend 

County Boundary 

Precinct Boundary 

District Boundary 

3 Republican Victories 

2 Republican Victories 

0 Republican Victories 

JOINT 
EXHIBIT 

140 
  

      \Js 
  

  

N.C. General Assembly, 
Information Systems Division. 

  

  

 



   



APPENDIX 8 

  

  

Republican Victories in Guilford County Precincts Abutting District 12 

  

= 
    

; 
    

  

  

S
T
 

ge 

        
          

  

  
    3 

  

  

    

  
  

Legend 

County Boundary 

Precinct Boundary 

District Boundary 

3 Republican Victories 

2 Republican Victories 

1 Republican Victory 

0 Republican Victories 

  

  

    
  

        

N.C. General Assembly, 

Information Systems Division. 

    

  

 



    



  

  

Republican Victories in Mecklenburg/Cabarrus County Precincts Abutting District 12 

    

  

ay 

Legend   

  

  

    

  

        JOINT 
EXHIBIT 

142 
  

N.C. General Assembly, 
Information Systems Division. 

    

  

  
 



   



®  S | p APPENDIX 10 

  

Percent Democrat in Split Counties 
by County for 1997 Congressional Districting Plan 

Counties Split by the 12th District 

Analagous to Dr. Weber's Table 2 

  

    

  

iy 4 : % Democrat % Democrat % Democrat % Democrat - a Registered _ 1988 Lt Gov. 1988 Ct of : 1990 US y County District Voters Election Appeals Senate 

Davidson 12 55.57 * 40.90 * 40.29 * 36.89 * Davidson 6 51.94 39.05 38.07 30.41 

Forsyth 12 88.08 * 78.65 * 3131'* 82.76 * Forsyth 5 55.88 42 62 41.22 40.19 

Guilford 12 78.69 * 68.27 * 67.39 * 68.84 * Guilford 6 56.59 : 45.67 39.38 43.27 

Iredell 12 65.83 * 45.71 * 4490 * 49.05 * Iredell 10 59.67 37.03 38.47 36.37 

Mecklenburg 12 77.73.* 65.66 * 65.25 * 7474 * Mecklenburg bp 48.29 39.06 31.07 48.17 

Rowan 12 68.09 * 57.34 * 56.78 * 54.00 * Rowan 6 50.68 38.73 35.99 32.25 

 



— Percent Democrat in Split Counties 
: by County for 1997 Congressional Districting Plan 

     

Counties Split by the 1st District 

Analagous to Dr. Weber's Table 2 

    
  

  

% Democrat % Democrat % Democrat % Democrat Registered 1988 Lt Gov 1988 Ct of 1930 US County District Voters Election Appeals Senate 

Beaufort _ Yin fe 76.73 + 48.48 * = 54.61 38.80 = Beaufort 3 76.62 48.44 54.71 * 39.01 * 
Craven 1 81.40 * 57.38 * 63.47 * 56.67 * Craven 3 64.66 41.68 45.82 40.20 
Granville 1 02.28 * 64.44 * 13.77 * 54.09 * Granville 2 82.61 50.35 50.12 42.35 
Jones 1 91.99 * 62.38 * 67.85 :* 43.93 * Jones 3 84.91 43.73 54.35 30.10 
Lenoir 1 . 86.89 * 65.24 * 72.56 * 57.985 * Lenoir 3 74.39 35.12 46.34 20.06 

‘Person 1 87.64 * £252 * 60.73 * 40.82 * Person 4 82.53 45.06 51.42 30.09 
Pitt 1 83.13 * 58.25 * 63.00 * 56.30 * Pitt 3 71.23 46.98 59.15 46.10 
Washington 1 90.46 63.50 * 62.85 * 48.42 * Washington 3 9222 * 56.59 61.75 44 84 
Wayne 1 8261 * 57.32 * 62.31 * 50.81 * Wayne 3 71.79 38.13 42.56 28.06 
Wilson 1 83.72 * 59.65 * 65.85 * $567 * Wilson - 2 : 72.96 32.08" -" .-% 4773 "4, 28.51 

 



   



    "Hh a APPENDIX 11 

Percent Democrat in Split Municipalities and Census 
Designated Places by City or Town for 1997 Plan 

Places Split by the 12th District 

Analagous to Dr. Weber's Table 4 

  
  

  

  

% Democrat % Democrat % Democrat % Democrat 
Registered 1988 Lt Gov 1988 Ct of 1990 US City/Town District Voters Election Appeals Senate 

‘Charlotte city 12 30.91. * - 69.52 * 69.19 * 78.44 * = Charlotte city... i 48.39 bs "30.78 #t 31.49 uy ' 50.41 CAE 

Cornelius town 12 63.07 * 43.48 * 42.00 * 43.73 * Cornelius town 9 48.00 34.81 26.72 42.75 

Davidson town 12 69.54 55.58 48.66 67.61 Davidson town 10 

Greensboro city 12 31.79 * 73.00 * 72.58 * 73.55 * Greensboro city 6 59.63 51.79 43.05 53.49 

High Point city 12 76.65 * £63.31 7 63.41 * 63.35 * High Point city 5 33.33 33.33 50.00 33.33 High Point city 6 50.26 38.58 34.14 36.22 

5 *_exington city 32 7693 * 60.32 60.69 * 62.00 * ~ Lexington city 6 71.88 60.36 * 60.56 50.71 

Mooresville town 12 62.69 43.69 44 14 44 36 Mooresville town 10 

Salisbury city 12 67.18 * 53.85: * 57.85 * 57.07 * Salisbury city 6 58.55 46.98 46.58 44 86 

Spencer town 12 75.40 * 53.57 * 60.87 * 50.28 * Spencer town 6 60.00 50.00 50.00 50.00 

Statesville city 12 80.59 * 64.26 * 53.64 * 69.80 * Statesville city 10 63.61 40.28 42.80 - 4205 

Thomasville city 12 68.00 * 58.03 * 58.00 * 56.95 * Thomasville city 6 54.92 41.46 39.63 30.82 

Troutman town 12 64.00 * 4214» 44.44 * 40.00 * Troutman town 10 61.79 34.84 37.52 38.16 

Winston-Salem city 12 90.41 * 82.22 * 85.21 * 86.33 * Winston-Salem city 5 61.02 49.22 . 46.87 49.40 

 



Percent Democrat in Split Municipalities and Census 
Designated Places by City or Town for 1997 Plan 

    
Places Split by the 1st District 

Analagous to Dr. Weber's Table 4 

% Democrat % Democrat % Democrat % Democrat   

  

    

Registered 1988 Lt Gov 1988 Ct of 19880 US City/Town District Voters Election Appeals Senate 

Ayden town : 1 3203 * -53.89 * 65.07 45.97 . Ayden town 3 3 "450.26 i BY.B5 88.67 * u  ~ 48.00 * RET ne ge 

Battleboro town 1 90.23 * 72.86 * 80.60 * 69.14 * Battleboro town 2 82.28 59.18 69.77 56.25 

Fremont town 1 89.24 * 59.66 * 66.24 * 5224 + Fremont town > 72.73: 28.57 33.33 13.33 

Goldsboro city 1 84.45 * 61.83 * 66.34 * 56.77 * Goldsboro city 3 65.69 33.78 36.94 24.06 

Greenville city 1 83.70 * 68.73 * 76.29 * 74.61 * Greenville city 3 65.20 46.07 56.25 52.43 

~ Kinston city 1 91.08 * 78.46 * 83.37 * 75.06 * Kinston city 3 73.82 36.60 46.75 25.35 

New Bern city 80.85 * 5047 * 65.18 * 58.23 * New Bern city 3 65.27 46.53 52.78 45.95 

Rocky Mount city 1 03.33 * 80.54 * 85.12 * 85.47 * Rocky Mount city 2 66.45 37.82 44.38 35.68 

Sharpsburg town 1 77.60 * 48.51 * 55.56 * 30.25 * Sharpsburg town 2 61.28 28.73 35.63 17.76 

Trent Woods town 1 76.26 * 49.67 * 53.19 * 61.54 * Trent Woods town 3 66.38 38.36 47.24 35.04 

Washington city 7 76.93 48.38 54.70 © 38.60 Washington city 3 

Whitakers town 1 91.28 * 69.91 + 79.81 * 65.41 * Whitakers town 2 88.17 66.38 70.91 61.98 

Wilson city 1 86.46 * 67.68 * 72.69 * 67.30 * Wilson city 2 69.48 ; 38.10 46.95 28.12 

 



  

In the 

Supreme Court of the United States 
October Term, 1999 

  

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

Petitioners, 

Y. 

MARTIN CROMARTIE, et al., 

Respondents. 

  

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 
  

CERTIFICATE OF SERVICE 

  

I, Tiare B. Smiley, Special Deputy Attorney General, a member of the bar of this Court 
and counsel of record for State petitioners in this case, hereby certify that all parties required to 
be served the 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 have been 
served, and more particularly, that I have on this tenth day of March 2000, deposited copies of 
this emergency stay application in the United States mail, first-class postage prepaid, addressed 
as follows: 

Robinson O. Everett 

Suite 300 First Union Natl. Bank Bldg. 
301 W. Main Street 

P.O. Box 586 

Durham, NC 27702  



  

Adam Stein 

Ferguson, Stein, Wallas, Adkins, Gresham, Sumter, P.A. 
312 W. Franklin St. 

Chapel Hill, NC 27516 

Todd A. Cox 

NAACP Legal Defense & Educational Fund, Inc. 
1444 I Street NW, 10® Floor 
Washington, DC 20005 

This the 10th day of March, 2000. . 

  

iare B. Smiley 

Special Deputy Attorney Gener 

 



  

IN THE UNITED STATES DISTRICT COURT ro FOR THE EASTERN DISTRICT OF NORTH CAROLTSY | [= D 

  

EASTERN DIVISION 

. 
= 2 hy Se No. 4:96-CV-104-B0(3) in Jaen 

DAVID wy DAN;z! CLERY MARTIN CROMARTIE, ef af, ) vs DISTRICT COURT ep ) Yi BER Plaintiffs, ) 

) v. 
) 
) OPINION JAMES B. HUNT, JR., in his officia] ) capacity as Governor the State of North ) 

Carolina, et al, ) 

) 
Defendants. ) 

)     

BOYLE, Chief District Judge: 

This matter is before the Court op remand from the United States Supreme Court's order 
holding that the underlying casc was not suited for summary disposition and ordering this Court 
to conduct further proceedings. Hunt v. Cromartie. 526 US. 541,119 8. Ct. 1545, 143 L.Ed.   

731 (1999). The underlying action challenges the congressional redistricting plan enacted by | 
the General Assembly of the State of North Carolina on March 31, 1997, contending that it 

violates the Equal Protection Clause of the Fourteenth Amendment, and relying on the line of 

  

Cases represented by Shaw v. Hunt. 517 U.S. 899, 116 S. Ct. 1394, 135 L.Ed.2d 207 (1996) 
("Shaw 11"), and Miller v. Johnson, 515 U.S. 900, 904, 115 S. Ct. 2475, 2482, 132 L.Ed.2d 762 
  

(1993). 

Following the Supreme Court's decision to remand, the parties undertook a new round of 
discovery, ending in October, 1999. Betwesn November 29 and December 1, 1999, a trial was 

held before fits Court. 

 



    

  

BACKGROUND 

In Shaw II the United States Supreme Coutt held that the Twelfth Congressional District 

  

created by the 1992 Congressional Redistricting Plan (hereinafter, the "1992 Plan") was race-- 

based and could not survive the required "strict scrutiny." 517 U.S. 899, 116 S. CL. 1894. The 

  

five plaintiffs in Shaw lacked standing to attack the other majority-minority district (the First - 

Congressional District under the 1992 Plan) because they were not registered voters in the 

district. Id. 

Soon after the Supreme Court ruled in Shaw I, three residents of Tarboro, North 

  

Carolina, filed the original Complaint in this action on July 3, 1996. These original Plaintiffs 

resided in the First Congressional District (alternatively, "District 1") as it existed under North 

Carolina's 1992 Plan. The Plaintiffs charged that the First Congressional District violated their 

rights to equal protection under the United States Constitution because race predominated in the 

drawing of the District. The action was stayed pending resolution of remand proceedings in 

Shaw v. Hunt, and on July 9, 1996, the same three Tarboro residents joined the Plaintiffs in   

Shaw in filing an Amended Complaint in that case, similarly challenging District 1. 

  

By Order dated September 12, 1997, the three-judge panel in Shaw approved a 

congressional redistricting plan enacted on March 3 1, 1597, by the General Assembly asa 

remedy for the constitutional violation found by the Supreme Court to exist in the Twelfth 

Congressional District (alternatively, "District 12"). The Shaw Greedades panel also dismissed 

without prejudice, as moot, the plaintiffs’ claim that the First Congressional District in the 1992 

Plan was unconstitutional. Although it was a final order, the September 12, 1997, decision of the 

Shaw three-judge panel was not preclusive of the instant cause of action, as the panel was not 

   



    

presented with a continuing challenge to the redisticting plan.’ 

On October 17, 1997, this Court dissolved the stay previously catered in this matter, On 
the same day, two of the original three Plaintiffs, along with four residents of District 12, filed an 
amended Complaint challenging the 1997 remedial congressional redistricting plan (the "1997 
Plan"), and seeking a declaration that the First and Twelfth Congressional Districts in the 1997 
Plan are unconstitutional racia] gerrymanders. A three-judge panel was designated by order of 
the Chief Judge of the Fourth Circuit Court of Appeals, dated January 23, 1993. 

The Plaintiffs moved for a preliminary injunction on J anuary 30, 1998, and for summary 
judgment on February 5, 1998. Defendants filed for summary judgment oa March 2, 1998, and a 
hearing on these motions was held on March 3 1, 1998. On April 3, 1998, a majority of the 
three-judge panel issued an Order and Permanent Injunction finding that the Twelfth 
Congressional District under the 1997 Plan was unconstitutional and granting Plaintiffs summary 
judgment as to that district. The Order and Permanent Injunction bite granted Plaintiffs’ Motion 
for Preliminary Injunction and granted Plaintiffs’ request for a:Permanent Injunction, thereby - 
enjoining Defendants from conducting any primary or gencral election for congressional offices 
under the 1997 Plan. Finally, the Court ordered the parties to file a written submission 
addressing an appropriate time period within which the North Carolina Genera] Assembly would 
  

! In its final Memorandum Opinion the three-judge panel in Shaw noted that there was "no substantive challenge to the [1997] plan by any party to this action," and closed by explicitly noting the limited basis of the approval of the plan that we are empowered to give in the context of this litigation. It is limited by the dimensions of this civil action as that is defined by the parties and the claims properly before us. Here, that means that we only approve the plan as an , adequate remedy for the specific violation of the individual equal protection rights of those 
approval thus does not—cannot—rug beyond the plan's remedial adequacy with respect to those parties and the equal protection violation found as to former District 12." Shaw v. Hunt, No. 92- 

  

3 

 



    

be allowed the opportunity to correct (he constitutional defects in the 1997 Plan, and to present a 
proposed election schedule to follow redistricting which provided for a primary election process 
culminating in a general congressional election to be held on the date of the previously 
scheduled general election. 

Defendants filed a Motion to Stay the April 3 Order, which was denied by this Court on 
April 6, 1998. On that date, Defendants appealed the denial of their Motion to Stay to the United 
States Supreme Court, which upheld this Court's denial on Apnl 13, 1998. Hunt v. Cromartie, 

  

523 U.S. 1068, 118 S.Ct. 1510, 140 L.Ed.2d 662 (1998). 

On April 14, 1998, this Court issued 2 Memorandum and Opinion issuing its findings of 
fact and conclusions of law regarding the April 3, 1998 order and denying Plaintiffs’ Motion for 
Summary Judgment with regard to the Bhd Congressional District under the 1997 Plan. On 
April 17, 1998, Defendants filed 2 motion asking the Court to reconsider its April 6 order On 
April 21, this Motion to Reconsider was denied. | 

On April 21, 1998, the Court issued a scheduling order, requiring that the General 
Assembly either submit a new plan to the Court 3 the Department of Justice by May 22. 1998 
or the Court would assume responsibility for drawing an interim plan. On May 22, 1998, 
Defendants submitted the 1998 Congranttinsl Redistricting Plain ("the 1998 Plan"). The 1998 
Plan contained a clause stating that, - the event that the United States Supreme Court found for 
the State in its appeal, the 1998 Plan would no longer be ordered and thus North Carolina's 
congressional districts would revert to the 1997 Plan 

Ou October 19, 199g, the Court granted a joint motion to stay all proceedings in this 
action pending a decision by the United’ States Supreme Court in Hunt v. Cromartie, docketed in   

the Supreme Court on September 16, 1998 as . 98-450. 

4 

 



   
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Je UU UT. TUR Lik JUUGE BAYLE ay 1 aman 

On May 17, 1999 the United States Supreme Court entered an order holding that the 
underlying case was not suited for summary disposition and ordering this Court to conduct 

  

further proceedings. . Hunt v. Cromartie, 526 U.S. 41, 119 8. Ct. 1545, 143 L.Ed. 731 (1999). 
In compliance with the Supreme Court's decision, a three day bench trial was held in this 

matter, om November 29 to December 1, 1999. Plaintiffs called eight witnesses. Plaintiffs’ 
first witness was Senator Hamilton Horton, 2 resident of Forsyth County and longtime member 
of the North Carolina General Assembly. Senator Horton testified as to his belief that Forsyth 
County and Winston-Salem were split along racial lines in the 1997 Plan and that District 12 was 
created with a predominantly racial motive. 

Plaintifls' second witness was Representative 5} Wood, a resident of High Point, 
North Carolina. Representative Wood testified that in 1997 he served in the North Carolina 
General Assembly in a leadership position, Representative Wood ran for Congress in the 
Twelfth District under the 1998 Plan and is convinced that the 1997 Plan divided High Pointand 
Guilford County along racial lines for a predominantly racial motive. 

As their third witness, Plaintiffs called Represcatative John Weatherly of King's 
Mountain, North Carolina, a member of the North Carolina General assembly during the 
considuation of the 1997 and 1993 redistricting plans who had previously served on a 
commission considering the State's legislative process. Representative Weatherly testified that 
he introduced legislation to facilitate the redistricting process through the use of a redistricting 
commission and that, on the basis of bis political and legislative experience, he believed that 
both Districts I and 12 were drawn with a predominantly racial motive. 

Plaintiffs fourth witness was R. O. Everett, a longtime resident of Salisbury, North 

Carolina who has been active in politics and has run for the state legislature. Mr. Everett 

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testified that he was familiar with the congressional districts in the Salisbury and Rowan County 
areas and is convinced that District 12 was drawn with 2 predominantly racial motive, 

Plaintiffs’ fifth gid was L.H. Froelich Jr. a lifetime resident of High Point, NC who 
testified that he has been active in state and local Polistes and believes that Guilford County was 
divided with a predominantly racial motive ; in both the 1992 and 1997 Plans and that the 1997 
Plan's District 12 was drawn witha predominantly racial motive. 

Plaintiffs’ sixth witness was Neil Williams, a resident of Charlotte who served on its city 
council, is familiar with the Medea County precincts, and ran for Congress in the 1992 
Plan's District 9. Mr. Williams testified that hes Is convinced that Mecklenburg County was 
divided along racial lines with a predominant racial motive and that the 1997 Plan’ s District 12 
was drawn with a predominantly racial motive. 

Plaintiffs’ seveath witness was Doan Frey of the North Carolinz General Assembly's 
Information Systems Division, who presented statistical data from the General Assembly's 
database, including relative numbers of persons moved from the 1992 Plan to the 1997 Plax, and 
current precincts sll by the 1997 Plan. | 

Plaintiffs eighth and final witness, whose testimony carried over into the second day of 
trial, was Dr. Ronald Weber of the University of Wisconsin. Dr, Weber testified as an expert 
political scientist who has studied, consulted on, and testified in many redistricting cases. 
Referring to maps and other data, Dr. Weber testified that race predominated in the construction 
of Districts 1 and 12 under the 1997 Plan, and that cities, counties and precincts were divided 
along racial lines. Dr. Weber concluded that no motivation other than race could adequately 
explain the legislature's decisions to include, exclude, or split certain precincts. 

Beginning on November 30, the second day of trial, the Defendants called four witnesses. 

6 

 



   
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Ui! YU UTE TOM Later JUUGE BOYLE 

  

Defendants’ first witness was Senator Roy Asberry Cooper, III, who testified as to the legislative 
history and enactment of the 1997 Plan in the North Carolina Senate, focusing on the creation of 
Districts | and 12. Senator Cooper testified that he was unsure whether he could get the 1997 . 
Plan pre-cleared by the Justice Department without creating a majority-minority First District. 
Senator Cooper's testimony also brought to light a February 10, 1997 email message (the 
"Cohen-Cooper Email") sent to him by Director of Bill Drafting Gerry Cohen, a state employee | 
charged with the technical aspect of drawing the districts in 1991, 1992, and 1997 Plans. The - 
Cohen-Cooper Email stated, in part, that "By shifting areas in Beaufort, Pitt, Craven and Jones 
Counties, I was able to boost the minority percentage in the first district from 48.1% to 49.25% 
The district was only plurality white, as the white percentage was 49.67%." (Exhibit 58; Trial 
Transcript at 438) The email continues, "This was all the district could be improved by 
switching between the 1" and 3" unless I went into Pasquotank, Perquimans , or Camden. I was 
able to make the district plurality black by switching precincts between the 1% and 4%» 
(Exhibit 58, Trial Transcript at 43 8) The Cohen-Cooper email also states that "I [Cohen] have 
moved Greensboro Black conunaly into the 12* and now need to take bout [sic] 60,000 out of 
the 12% await your direction on this." (Exhibit 58, Trial Transcript at 412) 

The senator stated that he did not remember receiving the Cohen-Cooper email and 
denied having given Cohen "specific instructions." (Trial Transcript at 413, 43 8) 

Additionally, Senator Cooper was questioned about a statement he made to the March 25, 
1997 meeting of the House congressional redistricting committe, in which he argued that the 
1997 Plan "provides for a fair geographical, racial and partisan balance throughout the state of 
North Carolina." (Trial Transcript at 429) The senator claimed that the term "partisan balance" 
referred to maintaining the six-six Democrat-Republican split in the congressional delegation, 

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but denied that the term "racial balance" would refer to maintaining the ten-two balance between 
whites and African Americans. (Trial Transcript at 429- -30) Senator Cooper admitted that race 
was "one of the factors that was considered” in drafting the 1997 Plan, and that but denied that it 
was the predominant factor. (Trial Transcript at 430) | 

Defendants began the third day of trial with their second witness, Representative W. 
Edwin McMahan, who testified as to the legislative history and enactment of the 1997 Plan in 
the North Carolina House of Representatives, Spec the creation of Districts 1 and 2. 
Representative McMahan claimed that race was not the predominant factor in the Ereation of 
those districts. 

Defendants’ third witness was Dr. David Peterson of the University of North Carolina at 
Chapel Hill's Department of Geography and Sciences. Dr. Peterson presented a statistical 
analysis of data regarding the question whether race predominated over party affiliation in the 
construction of the 1997 Plan's District 12. Dr. Peterson also discussed the variance between 
Democratic registration and voting behavior; and analyzed Dr. Weber's reasoning on the 
predominance of race as a factor in the creation of District 12. In contrast to Dr. Weber, Dr. 
Peterson's conclusion was that political considerations, rather than race, might possibly account 
for the legislature's decisions to include, exclude, or split certain precincts. 

Defendants’ final witness was Gerry Cohen, Director of Bill Drafting for the North 
Carolina General Assembly. Mr. Cohen testified as to the legislative history and enactment of 
the 1997 Plan, especially with regi to Districts | and 12, as well as the technical aspects of 

redistricting, including the computer systems used. 

FACTS 

As discussed above, in 1992 the Stata of North Carolina established a new set of 

8 

 



    

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| oh 

proposed congressional districts. This 1992 Plan created two districts, the First nd the Twelfth, 
that were challenged by a group of plaintiffs who claimed that the State had deliberately 
segregated voters into districts on the basis of race without compelling g justification, In Shaw v. 
Reno (“Shaw Shaw I), the United States Supreme Court held that this allegation stated a claim for 
relief under the Equal Protection Clause of the Fourteenth Amendment. 509 U.S. 630, 658, 113 
S.Ct 2816, 125 L.Ed.2d 511 (1993). 

On remand, the District Court found that North Carolina’ s Twelfth District created by the 
1992 Plan classified voters by ; race, but that the plac lacked standing to challenge the First 
District. In Shaw II, the United Bates Supreme Court affirmed this finding and further held that 
the State had not established that its reapportionment scheme was narrowly tailored to serve a 
compelling state interest, and therefore the 1992 Plan failed the requisite “strict scrutiny” test. 
517 U.S. 899, 116 S. Ct. 1894, 

The North Carolina General Assembly convened in regular session on January 29, 1997, 
and formed redistricting committees to address the defects found in the 1992 iz . These newly 
formed House and Senate Committees aimed to identify a plan which would cure the 
constitutional defects and receive the support of a majority of the members of the General 
Assembly. Affidavit of Senstor Roy A. Cooper, III ("Cooper Aff") 3. In forming a workable 
plan, the committees were guided by two avowed goals; (1) curing the constitutional defects of 
the 1992 Plan by assuring that race was not the predominant factor in the new pl an, and (2) 
drawing the plan to maintain the existing partisan balance in the State's congressional delegation. 
Cooper AFL 415, 8, 10, 14; Affidavit of Gary O. Bartlett Executive Secretary-Director of the 
State Board of Elections ("Bartlett Aff"), Vol. I Commentary at 9-10. . 

To achieve the second goal, the redistricting committees drew the new plan (1) to avoid 

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Mar 07 00 Q4:46p CHIEF ODGE BQYLE 

® @ 

placing two incumbents in the same district and @) to preserve the partisan core of the existing 

districts to the extent consistent with the goal of curing the defects in the old plan. Cooper Aff. 

114. The plan as enacted largely reflects these directives: incumbent Congressmen generzlly do 

not reside in the same district, and each district retains at least 60% of the population of the old 

district. Cooper AfF. 18, Affidavit of Representative W, Edwin McMzhan ("McMahan Aff") §7. 
L The Twelfth Congressional District     

District 12 is one of the six predominantly Democratic districts established by the 1997 

Plan to AY the 6-6 partisan division in North Carolina's congressional delegation. District 

12 is not a majority-minority district, but 46.67 percent of its total population is African- 

American, Bartlett AfE, Vol. I Commentary at 10 and 11. District 12 is composed of six 

counties, all of them split in the 1997 Plan. The racial composition of the parts of the six sub- 

divided counties assigned to District 12 include three with parts over 50 percent African- 

American, and three in which the African-American percentage is under 50 percent. Declaration 

of Ronald E. Webber ("Webber Dec.") {18. However, almost 75 percent of the total population 

in District 12 comes from the three county parts which are majority African-American in 

population: Mecklenburg, Forsyth, and Guilford counties. Id. The other three county parts 

(Davidson, Iredell, and Rowan) have narrow corridors which pick up as many African- 

Americans as are needed for the district to reach its ideal size. 1d. 

  

? The Twelfth is not a majority-minerity district as measured by any of three possible criteria. African-Americans constitute 47 percent of the total population of District 12, 43 percent of the voting age population of the District, and 46 percent of the registered voters in the District. Peterson Aff, at 8. : 

* An equitably populated congressional district in North Carolina needs a total population of about 552,386 persons using 1990 Census data. Weber Dec. 39. 

10 

 



    

aati A ES HR Sold bl SJUUGR BUTE — 

Where Forsytl County was split, 72.9 percent of the total population of F orsyth Lonny 
allocated to District 12 is Aficas American, while only 11.1 percent of its total population 
assigned to » nelghboring District 5 is African-American. Id. 120. Similarly, Mecklenburg 
County is split $0 51.9 percent of its total population allocated to District 12 is African- 
American, while only 7.2 percent of the total] population assigned to adjoining District 9 is 
African-American. 

A similar pettern emerges when analyzing the cities and towns split between District 12 
and its surrounding districts: the four largest cities assigned to District 12 are split along racial 
lines. Id. 123. For example, where the City of Charlotte is split between District 12 and adjacent 
District 9, 59.47 percent of the population assigned to District 12 is African-American, while 
only 8.12 percent of the Charlotte population assigned to District 9 is African-American. 
Affidavit of Martin B. McGee ("McGee Aff L."), Ex. L. And where the City of Greensboro is 
split, 55.58 percent of the population assigned to District 12 is African-American, while only 
10.70 percent of the population ad to District 6 is African-American. Id. 

An analysis of the voting precincts immediately surrounding District 12 reveals that the 
legislature did not simply create a majority Democratic district amidst surrounding Republican 
precincts. Por example, around the Southwest edge of District 12 (in Mecklenburg County), th 
legislature included Might the district's borders several precincts with racial compositions of 40 
to 100 percent AStedrtmiiioes. while excluding from the district voting precincts with less 
than 35 percent African-American population, but Saavily Democratic voting registrations. 
Among Mecklenburg County precincts which are immediately adjacent to District 12, but not 

inside it, are precincts with 58.818 percent of voters registered as Democrats, and precincts that 

are 56.464 percent Democratic, 54.213 percent Democratic, 59.135 percent Democratic, 59.225 

11 

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Mar 07 OQ 04:47/p CHIEF ® BOYLE EBT rma 

percent Pesiodatie 34.498 percent Democratic, 59.098 percent Democratic, 55.72 percent 

Democratic, 54.595 percent Democratic, 54.271 percent Democratic, 63.452 percent 

. Democratic, and 59.453 percent Democratic. Id., Ex. P. Similarly, Forsyth County precincts 

that are immediately adjacent to, but not inside, Distict 12 include precincts with 57.371 percent 

Democratic registration, 65.253 percent Democratic registration, 65.747 percent Democratic 

registration, 65.747 percent Democratic registration, 76 garment Democratic registration, 53.057 

percent Democratic realstuatién, 35.907 percent Democratic registration, 56.782 gerasnt 

Democratic registration, 55.836 percent Democratic registration, and 60.113 percent Democratic 

registration. Id., Ex. O. Finally, District 12 was drawn to exclude precincts with 59.679 percent 

Democratic registration, 61.86 percent Democratic registration, § 3.145 percent Democratic 

registration, 62.324 percent EI 60.209 percent Democratic registration, 

56.739 percent Democratic registration, 66.22 percent Democratic registration, 57.273 percent 

Democratic registration, 55.172 perceat Democratic registration, and 63.287 percent Democratic 

registration, all in Guilford County. Id, Ex. N. 

On the North Carolina map, District 12 has an irregular shape and is barely contiguous in 

parts. Its Southwest corner lies in Mecklenburg Coutlt very close to the South Carolina border, 

and includes parts of Charlotte. The District moves North through Rowan County and into 

Iredell County. There it juts West to pick up parts of the City of Statesville. More than 75 

percent of the Statesville population that is included in District 12 is African-American, while 

only 18.88 percent of the population of Statesville excluded from District 12 is African- 

American. McGee Aff, Ex. L. From Statesville, the District moves East into Rowan County, 

There it dips to the South to include Salisbury, before turning to the Northeast and entering 

Davidson County and the City of Thomasville. Over 41 percent of the populations of Salisbury 

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Hal: Ul Ul UI HIp LHIEF ® BOYLE 

and Thomarllie that are included in District 12 are African-American, while only 15.39 and 

9.55 percent, respectively, of those that are excluded from the District are African American. Id. 

The District makes a northwesterly incursion into Forsyth County to include parts of Winston- 

Salem, where 77.39 percent of the population within District 12 is African-American, and only 

16.06 percent of the population left out is African-American. Id. The District moves to the East 

and pei Gisttionlly before opening up again % include the predominantly African- 

American parts of Greensboro, where the District ends. 

Objective, numerical studies of the compactness of congressional districts are also 

available. In his report, "An Evaluation of North Carolina's 1998 Congressional Districts," 

Professor Gerald R. Webster, one of the Defendants’ expert witnesses, presents statistical 

analyses of "comparator Ton indicators” for North Carolina's congressional districts 

under the 1997 Plan. In measuring the districts’ dispersion compactness® and perimeter 

compactness,’ Professor Webster offers two of the Sov ortaiimonly recognized and applied" 

compactness indicators. Webster, at 13 (citing Pildes & Niemi, Expressive Harms, "Bizarre 

Districts," and Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno, 92 

Mich.L.Rev. 483, 571-573, table 6 (1993) (hereinafter, "Pildes & Niemi"); and see Bush v. Vera, 
  

217 U.8.952, —, 116 8. Ct. 1941, 1952, 135 L.Ed.2d 248 (1996) (citing Pildes & Niemi 
  

* "Dispersion compactness" measures the geographic "dispersion" of a district. To 
calculate this a circle is circumscribed around a district. The reported coefficient is the 
proportion of the area of the circumscribed circle which is also included in the district. This 
measure ranges from 1.0 (most compact) to 0.0 (least compact). Webster, at 14. 

* "Perimeter compactness" is based upon the calculation of the district's perimeter. The 
reported coefficient is the proportion of the area in the district relative to a circle with the same 
perimeter. This measure ranges from 1.0 (most compact) to 0.0 (least compact). Webster, at 14. 
The equation used here is (4 x IT) x Area of district) + (District's Perimeter2)). Webster, at 
table 3. : : : 

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tial wv { Uu u-<: Tap vhlier JUUGE BOYLE 

compactness factors as supporting evidence for holding three Texas congressional districts 

unconstitutional). 

In discussing the relative normalcy of various compactness measures, Pildes and Niemi 

suggest that a "low" dispersion compactness measure would be equal to or less than 0.15. Pildes . 

. & Niemi, at 564. They suggest that a "low" perimeter compactness measure is equal to or less 

than 0.05. Id. North Carolina's Twelfth Congressional District under the 1997 Plan has a 

dispersion compactress indicator of 0.109 and a perimeter compactness indicator of 0.041. 

Webster, at table 3. These figures are much lower than the mean compactness indicators for | 

North Carolina's twelve congressional districts under the 1997 Plan. The average dispersion 

CERT. LW the State is 0.354, and the average perimeter compactness indicator is 

0.192. Id. The next lowest dispersion compactness indicator after District 12 is the 0.206 in the. 

Fifth Congressional District, and the next lowest perimeter compactness indicator is the First 

Congressional District's 0.107. Id.” | 

Thus, it is clear that even after the changes detailed above, the primary characteristic of 

the Twelfth District is its “racial archipelago,” stretching, bending and weaving to pick up 

predominantly African-American regions while avoiding many closer and more obvious regions 

of high Democratic registration, but low African-American population. 

II. The First Congressional District   

District 1 is another predominantly Democratic district established by the 1997 Plan. 

Unlike District 12, itis a majority-minority district, based on percentages of the total population 

of the District,’ as 50.27 percent of its total population is African-American. 1d., Vol. I 
  

While 50.27 percent of the total population of District [ is African-American, only 46.54 percent of the voting age population is African-American, based on the 1990 census data. 

14  



    

- wwii —temi wumuC pUTLE er ™ 

Commentary at 10. District I 1s composed of ten of the 22 counties split in drawing the 

statewide 12 district 1997 Plan. Weber Dec. 1 6. Half of the twenty counties represented in 

District 1 are split. Id. Of the ten sub-divided counties Airadio District 1, four have parts 

‘with over 50 percent African-American population, four others have parts with over 40 percent 

African-American population, and two others have parts with ore 30 percent African-American 

population. Id, 17. 

In each of the ten counties that are split between District | and an adjacent district, the 

percent of the population that is African-American is higher inside the district than it is outside 

the district, but within the same county. Id. 19 and Table 2. The disparities are less significant 

than in the county splits involving District 12. Id., Table 2. For example, where Beaufort 

County is split between Districts 1 and 3, 37.7 percent of the total population of Beaufort County 

allocated to District | is African-American, while 22.9 perceat of the total population of 

Besulint County assigned to District 3 is African-American, 

S imilacly, nine of the 13 cities and towns split between District | and its neighboring 

districts are split along racial lines. Id., 122. For example, where the City of New Bem is split 

between District 1 and adjacent District 3, 48.27 percent of the population assigned to District 1 

+ is African-American, while 24.49 tae of the New Bem population assigned to District 3 is 

African-American McGee Aff, Ex. i. 

Viewed on the North Carolina map, District 1 is not as irregular as District 12. In the 

North, it spans 15 1.2 miles across, from Roxboro, Person County, in the West, to Sunbury, Gates 

County, in the East. Affidavit of Dr. Alfred W. Stuart ("Stuart Aff"); table 1. Itis shaped 

  

Bartlett Aff, Vol. I Commentary at 10. 

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roughly like thé state of Florida, although the protrusion to the South from its "panhandle" is 

only approximately 150 miles long (to Goldsboro, Wayne County, with two irregularities jutting 

into Jones, Craven, and Beaufort Counties. Cooper Aff, attachment. These irregularities 

surround the peninsular extension of the Third Congressional District from the East, allowing the 

incumbent from the pried Third Congressional District to retain his residence within the 

boundaries of the same district, and avoiding placing two incumbents in District 1. 

~The "comparator compactness indicators” from District 1 are much closer to the North 

Carolina mean compactness indicators than are those from District 12. For example, District 1 

has a dispersion compactness indicator of 0.317 and a perimeter compactness indicator of 0.107. 

Webster, at table 3. This dispersion compactness indicator is not significantly lower than the 

State's mean indicator of 0.354, and is higher than the dispersion compactness indicators of 

Districts 12 (0.109), 9 (0.292), and § (0.206). 1d. It may be noted that Districts 5 and 9 are next 

to, and necessarily shaped by, District 12. District 1 has a perimeter compactness indicator of 

0.107, which is lower than North Carolina's mean perimeter compactness indicator (0.192), but 

much higher than Pildes and Niemi's suggested "low" perimeter compactness indicator (0.03). 

District 1's perimeter compactness indicator is also much higher than that of District 12 (0.041). 

  

Id. 

DISCUSSION 

iL Applicable Law and Standard of Review 

The Equal Protection Clause of the United States Constitution provides that no State 

"shall deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. 

  

amend. 14, § 1. The United States Supreme Court explained in Miller v Johnson, 515 U.S, at 

904, 115 S. Ct. at 2482, that the central mandate of the Equal Protection Clause "is racial 

16 

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mar U/ UU U4:43p CHIEF ® BOYLE 

neutrality in governmental decisionmaking." Application of this mandate clearly prohibits 

purposeful discrimination between individuals on the basis of race. Shaw v. Reng, 509 U.S. 630, 
  

642, 113 S. Ct. 2816, 2824, 125 L.Ed.2d 511 (1993) ("Shaw I") (citing Washington v. Davis. 426 
  

U.S. 229, 239, 96S. Ct. 2040, 2047, 48 L.Ed.2d 597 (1976)). 

As the Supreme Court recognized, however, the use of this principle in "electoral 

districting is a most delicate task." Miller 515U.S,, at 905, 115 S. Ct, at 2433. Analysis of 

suspect districts must begin from the premise that "[l]aws that explicitly distinguish between 

individuals on racial grounds fall within the core of (the Equal Protection Clause’) prolibition. 

Shaw I, 509 U.S, at 642, 113 S. Ct., at 2824. Beyond that, however, the Fourteenth 

Amendment's prohibition "extends not just to explicit racial classifications," Miller, 515 US. at 

905, 115 S. Ct., at 2483, but also to laws, neutral on their face, but "unexplainable on grounds 

other than race," Arlington Heichts v. Metropolitan Housing Development Corp., 429 U.S. 252,   

266, 97 S. Ct. 555, 564, 50 L.Ed2d 450 (1977). 

[n challenging the constitutionality of 2 State's districting plan, the "plaintiff bears the 

burden of proving the race-based motive and may do so either through ‘circumstantial evidence 

of a district's shape and demographics’ or through ‘more direct evidence going to legislative 

purpose." Shaw I[, 517 U.S. at--, 116 S. Ct. at 1900 (quoting Miller, 515 U.S. at 916, 115 S. 

Ct. at 2488). In the fine! analysis, the plaintiff must show "that race was the predominant factor 

motivating the legislature's decision to place a significant number of voters within or without a 

particular district." Id. (quoting Miller, 515 U.S., at 916, 115 S. Ct, at 2488). 

Ouce a plaintiff demonstrates by a preponderance of the evidence that race was the 

predominant factor in redistricting, the applicable standard of review of the new plan is "strict 

scrutiny." Thus, id Miller the Supreme Court held that strict scrutiny applies when race is the 

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Mar U7 QQ 04:43p ‘a @® BOYLE 

"predominant" consideration in drawing the district lines such that "the legislature subordinates] 

race-neutral districting principles . . . to racial considerations." §15 U.S., at 916,1158. Ct, at 

2488. Under this standard SF ravien a State may escape censure while drawing racial 

distinctions only if it is pursuing a "compelling state interest." Shaw II, 517 US, at— 1168S. 

Ot at 1902, 

_ However, "the means chosen to accomplish the State's asserted purpose must be 

specifically and narrowly framed to accomplish that purpose." Wveant v. Jackson Bd. of Bd, 
  

476 U.S. 267, 280, 106 5. Ct. 1842, 1850, 50 L.Ed2d 260 (1956) (opinion of Powell, J). As the 
Supreme Court required in Shaw II, where 2 tate's plan has been found to be a racial 
gerrymander, that State must now th not only that its redisetiiie plan was in pursuit of a | 

compelling state interest, but also that jts districting legislation is narrowly tailored ta achieve 

that compelling interest." S17 USS., at —, 116 S. Ct., at 1902. 

We are cognizant of the principle that "redistricting and reapportioning legislative bodies 

. 1s a legislative task which the federal courts should make every effort not to preempt." Wise v. 
Lipscomb, 437 U.S. 535, 539, 98 S. Ct. 2493, 2497, 57 L.Ed2d 411 (1978) (citations omitted), 
"A State should be given the opportunity {o make its own redistricting decisions so long as that 
is practically possible and the State chooses to take the opportunity. When it does take the 

opportunity, the Sertion of the federal court is limited except on the extent that the plan itself 
runs afoul of federal law." Lawvery. Dep't of Justice, — U.S. — — 117 S. Ct. 2186, 2193,   

138 L.Ed2d 669 ( 1997) (internal citations omitted).” Thus, when the federal courts declare an 
  

"The dissent charges that we "ignore(] the principles of federalism which require federal courts to exercise restraint," and alludes to the dangers of "judicial activism." This isa disturbing accusation, as a federal court cannot shrink away from the enforcement of the United - States Constitution and federal law. The standard of equal protection under law established in 

18  



ial U/l UM UTE TOR PW I 0 BAYLE TT 

apportionment theme unconstitutional-as the Supreme Court did in Shaw II-it is appropriate, 

"whenever practicable; to afford a reasonable opportunity for the legislature to meet 

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

devise and order into effect its own plan. The new legislative plan, if forthcoming, will then be 

the governing law unless it, too, is challenged and found to violate the Constitution." Wise, 437 

U.S,, at 540, 98 S. Ct., at 2497, 

B The Twelfth Congressional District 
  

As noted above, the final decision of the three-judge panel in Shaw only approved the 

1997 Congressional Redistricting Plan "as an adequate remedy for the specific violation of the 

individual equal protection rights of those plaintiffs who successfully challenged the legislature's 

creation of former District 12." Shaw v. Hunt. No. 92-202-CIV-5-BR, at 8 (E.D.N.C. Sept. 12,   

1997). This panel must thus decide whether the 1997 Plan's Twelfth District violates the equal 

protection rights of the Plaintiffs who live within the district and challenge its constitutionality. 

  

the latter half of the 20™ century is the direct result of federal courts’ defense of constitutional 
principles in the face of state resistence. We would point our distinguished colleague to the 
words of the late Judge Frank Johnson: 

It must be emphasized that, when governmental institutions fail to make ... 
judgment and decisions in a manner which comports with the constitution, federal 
courts have a duty to remedy the violation. In summary, it is my belief that the 
judicial activism which has generated so much criticism is, in most cases, not 
activism at all. Courts do not relish making such hard decisions and certainly do 
not encourage litigation on social and political problems. 

But the federal judiciary in this country has the paramount and the 
continuing duty to uphold the law. When a "case or controversy" is properly 
presented, the court may not shirk its swom responsibility to uphold the 
Constitution and laws of the United States. The courts are bound to take 
jurisdiction and decide the issues, even though those decisions result in criticism. 
The basic strength of the federal judiciary has been, and continues to be, its 
independence from political and social pressures. : 

Frank M. Johnson, Jr., Judicial Activism is a Duty~Not an Intrusion, VIEWS FROM THE BENCH: 
THE JUDICIARY AND CONSTITUTIONAL POLITICS 279, 283-4 (1985). 

19  



    

Mar O7 OU 04:50p CHIEF & BOYLE Ty 

In holding that District 12 under the 1992 Plan was an unconstitutional racial 

gerrymander, the Supreme Court in Shaw II noted, "(n]o one looking at District 12 could 

  

reasonably suggest that the district contains a ‘geographically compact’ population of any race.” 

  

SI7US,, at—, 116 S. Ct., at 1906. The Shaw II Court thus struck the old District 12 as 

unconstitutional as a matter of law. PY vadeiing North Carolina's congressional districts in 

1997 the General Assembly was, of course, aware that District 12 under the 1992 Plan had been 

_ declared unconstitutional; curing the constitutional deficiencies was one of the legislature's 

declared goals for the redistricting process. Cooper Aff. 115, §, 10, 14. 

Defendants now argue that the changes in District 12 between the 1992 and 1997 Plans 

are dramatic ig to cure it of its constitutional defects. They point to the fact that the new 

District 12 has lost nearly one-third (3 1.6 percent) of the population from the 1992 district and 

nearly three-fifths (58.4 percent) of the land. These numbers neither advance the Defendants’ 

argument nor ead the Court's inquiry. As Defendants themselves note, the Court's role is limited 

to determining "whether the proffered remedial plan is legally unacceptable because it violates 

anew constitutional or statutory voting rights-that is, whether it fails to meet the hil standards 

applicable to an original challenge of a legislative plan in place." McGhee v. Granville County 

  

860 F.2d 110, 115 (4* Cir. 1988) (citing Upham v. Seamon, 456 U.S. 37,42, 102 S. Ct. 1518, 

1521, 71 LE 725 (1982)). A comparison of the 1992 District 12 and the present District is 

of limited value here. The tone in this case is whether District 12 in the 1997 Plan violates the 

equal protection rights of the voters itis within it. 

In Shaw I, the Supreme Court described the 1992 Plan’s District 12 as "unusually 

shaped...approximately 160 miles long and, for much of its length, no wider than the [Interstate]- 

85 corridor. It winds in snake-like fashion through tobacco country, financial centers, and 

20 

 



    

manufacturing areas until jt gobbles in enough rire: of black neighborhoods." 509 U.S, at 

635-636, 113 S. Ct., at 2320-2821 (internal quotations omitted). The 1997 Plan's District 12 is 

similar: it is "unusually shaped.” it is “snake-like,” and it "gobbles in" Afra Kmerican 

population centers. The evidence establishes that although its length has been shortened by 

approximately 65 miles, it still winds from Charlotte to Greensboro along the Interstate-85 

corridor, detouring to envelop heavily African-American portions of cities such as Statesville, 

Salisbury, and Winston-Salem. It also connects cones not joined in a congressional 

district, other than in the unconstitutional 1992 Plan, since the whole of Western North Carolina 

was one district, nearly two hundred years ago. 

As Hsctased above, where cities and counties are split between the Tweleth District and 

neighboring districts, the splits invariably occur along racial, rather than political, lines—the 

parts of the divided cities end counties having a higher proportion of African-Americans are 

always included in the Twelfth. Defendants argue that the Twelfth was drawn not with race, but 

rather politics and partisanship in mind. They have described the District as a "Democratic 

island in a Republican sea," and presented expert evidence that political identification was the 

predominant factor determining the border of District 12. Affidavit of David W. Peterson 

("Peterson Aff"). As the uncontroverted evidence demonstrates, however, the legislators 

excluded many esi Deriottic precincts from District 12, even when those precincts 

immediately border the Twelfth and would have established a far more compact district. The 

only clear treed woven throughout the districting process is that the border of the Twelfth 

district meanders to include nearly all of the precincts with African-American population 

proportions of aver forty percent which lie between Charlotte and Greensboro, inclusive. 

As noted above, objective measures of the compactness of District 12 under the 1997 

2 

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   : 

Plan reveal that it is still the most geographically scattered of North Carolina's congressional 

districts. When HE to other previously challenged and reconstituted congressional 

districts in North Carolina, Florida, Georgia, Illinois, and Texas, District 12 does not fare well. 

The District's dispersion and perimeter compas indicators (0.109 and 0.041, respectively) 

are lower than those values for North Carolina's District 1 (0.317 and 0.107 under the 1997 

Plan). Similarly, the District suffers in Caanadien to Florida's District 3 (0.136 and 0.03), 

Georgia's District 2 (0.541 and 0.411) and District 11 (0.444 and 0.259), Illinois’ District 4 

(0.193 and 0.026), and Texas District 18 (0.335 and 0.151), District 25 (0.384 and 0.178), and 

District 30 (0.383 and 0.180) 

Additionally, Plaintiffs’ expert, Dr. Weber, showed ume od again how race trumped 

party affiliation in the construction of the ye District and how political explanations utterly 

failed to explain the composition of the district. (Trial Transcript at 162-3, 204.5,221,251,2682, = 

288. Of particular note is Dr. Weber's contention that a much more compact, solidly Democratic 

12" District could have been created had race not predominated over traditional political 

considerations in the redistricting process. (Trial Transcript:at 220-1) Additionally, Dr. Weber 

showed that, without fail, Democratic districts adjacent to District 12 yielded their minority areas 

to that district, retaining white Democratic precincts. (Trial Transcript at-25 5-6). This eli 

served to undermine Defendants’ contention that race was merely a factor in creating the 1997 

Plan's 12% District, and that a desire to place high-performance Democratic areas (which happen 

to contain minority populations) within Democratic districts could explain the construction of 

the 12°. 

The conclusion that race predominated was further bolstered by Senator Cooper's 

allusion to a need for "racial and partisan balance," cited above. The senator's contention that 

22 

 



  

   

  

— = mr ma ad Sd Dem a T—— 

although he used the term "partisan balance" to refer to the maintenance of a six-six Democrat- 

Republican split in the congressional delegation, he did not mean the term "racial balance" to 

refer to the maintenance of a ten-two balance between whites and African Americans is simply 

not credible. (Trial Transcript at 429-30) 

Dr. Weber, who has testified ” an ekpen in redistricting cases in Louisiana, Texas, 

Georgia, Virginia and Florida, also presented a convincing critique of the methodology used by 

Defendants’ expert witness, Dr. Peterson. (Trial Transcript at 145) Dr. Weber characterized Dr. 

Peterson's boundary segment analysis as non-traditional, creating “erroneous” results by 

“ignoring the core" of each district in question. (Trial Transcript at 222-4) In summary, Dr. 

Weber found that Dr. Peterson's analysis and report "has not been appropriately done," and was 

therefore "unreliable" and not relevant. (Trial Transcript at 232) 

Finally, the Cooper-Cohen email, discussed above, clearly demonstrates that the chief 

architects of the 1997 Plan had evolved a methodology for segregating voters by race, and that 

they had applied this method to the 12* District. The Cooperate email refers specifically to 

the categorization of sections of Greensboro as "Black," and a scheme by which this section was 

added to the 12% District, creating a need to "take about 60,000" other citizens out. (Exhibit 58) 

It is also relaves as evidence of the means by which the 1997 Plan's racial gerrymandering 

could be achieved with scientific precision, as the precise racial composition of another district 

(the First) is discussed at length, along with plans to "improve" that district by "boost[ing] the 

minority percentage.” (Exhibit 58) 

The computer system used by the ser in the capacity to identify and apportion voters 

based on race, and to determine the exact racial make-up of each district. The Cohen-Cooper 

23 

.22 

 



  

Mar U/ UU U4:00p CHIEF JUDGE BOYLE 

    

"0 ® 

email reveals that exact racial percentages were used when constructing districts.® Given that the 

Supreme Court struck down the 1992 Plan's 12% District, the clear inference here is that a motive 

existed to compose a new 12° District with just under a majority minerity in order for it not to 

present a prima facie racial gerrymander. In fact, Senator Coo per argued before the legislature 

  

_ that the Shaw test for constitutionality would not be triggered because the 12" District was not a 

majority minority district. (Trial Transcript at 440-1) But using a computer to achieve a district 

that is just under 50% minority is no less a predominant use of race than using it to achieve a 

district that is just ore: 30% minority. | 

Based on the extensive direct and circumstantial evidence presented at trial, the Court 

finds as a matter of fact that the General Assembly, in redistricting, used criteria with respect to 

the Twelfth District that are facially race driven. Itis clear that the Twelfth District was drawa 

to collect precincts with high racial identification rather than political identification. 

Additionally, the evidence demonstrates that precincts with higher partisan representation (that 

is, more heavily Democratic precincts) were bypassed in the drawing of District 12 in favor of 

precincts with a higher African-American population. The legislature eschewed traditional 

districting criteria such as contiguity, geographical integrity, community of interest, and 

compactness in redrawing the District as part of the 1997 Plan. Instead, the General Assembly 

utilized race as the predominant factor in drawing the District? 

  

*Senator Cooper claimed that the final percentage composition of District 12 was sheer 
happenstance. (Trial Transcript at 427-8) The explicit discussion of precise percentages in the 
email belies this characterization, j 

* The Supreme Court has indicated that, when drawing congressional districts, race may 
not be used as a proxy for political characteristics. Vera v. Bush, 517 U.S. 952, —, 116 S. Ct. 
1941, 1956, 135 L.Ed.2d 248 (1996). " : 

  

24 

 



      

CE TP “iio Juuuk HUTYLE tT 

This Court finds that, in contrast ta the state's claims regarding the [* District, no 

evidence of a compelling state interest in utilizing race to create the new 12 District has been 

presented. Puls even it such an interest did exist, the 12 District is not narrowly tailored and 

therefore cannot survive the prescribed “strict scrutiny.” The 1997 Plan’s District 12 is an 

impermissible and unconstitutional racial gerrymander in violation of the Equal Protection 

Clause. 

To remedy these constitutional deficiencies, the North Carolina legislature must redistrict 

the 1997 Plan in such a way that it avoids the deprivation of the voters' equal protection rights 

not to be classified on the basis of race. This mandate of the Court leaves the General Assembly 

free to use other, proper factors in todlyirlotie the 1997 Plan. The legislature may consider 

traditional districting criteria, such zs incumbency considerations, to the extent consistent with 

curing the constitutional defects. See Shaw II, 517 U.S., at —, 116 S. Ct., at 1901 (describing 

"race-neutral, traditional districting criteria"), lo 

  

HOI. First Congressional District 

The three-judge panel in Shaw never ruled on the constitutionality of the 1992 Plan's 

First Congressional District. S tanding problems on the part of the Shaw plaintiffs forced that 

court to narrow its focus to adjudicate only the issues raised regarding the Twelfth District. A 

comparison of the First and Twelfth Districts under the 1992 Plan reveals, however, that they are 

similarly egregious in their construction and that the First District would certainly have been 
  

“Our distinguished colleague's dissent treats the standing of Plaintiff Linville at some length Defendants moved to dismiss him from the instant suit, arguing that he did-not live within the 1997 Plan's 12® District. This motion was denied al trial. Trial Transcript at 327, As there is standing on behalf of a plaintiff or plaintiffs with respect to each of the challenged districts, Plaintiff Linville's standing is moot as to this Court's ability to reach a decision in the instant case. Thus, we decline to elaborate on the standing issue. 

25 

 



    

TR Rv Eey Lolo r JUUGE BAYLE 

  

ry 

subject to the same finding that it was not narrowly tailored. Both were majority-minority 
districts under the 1992 Plan, and neither evidenced even minimal geographical compactness. 

The 1997 Plan's First District. once again presents this Court with a majority-minority 
district, this Hme containing a population that is 50.27 percent Aftican- American, as opposed to 

.the Twelfth District § 46.67 percent. The First District i Is, oni far more compact than the 
Twelfth and its shape is less irregular, as we have sesn above, ° 

. This Court finds as a matter of fact that, under the 1992 Plan, the First District was not 
narrowly tailored and therefore that district was in violation of the Constintios, The evidence 
presented by the Defendants does not dispute this finding. 

The statements of several key players in the 1997 redistricting process clearly show that, 
in an eflort to gain pre-clearance under the Section 2 of the Voting Rights Act, 42 U.S.C. § 1973, 
they allowed race to predominate in the creation of the 1* District. The Cohea-Cooper email is 
one such clear example, specifically referencing the desire to "boost the minority percentage in 
the first district" to create an "improved" district. The email €Xpases a process in which voters 
were categorized by race, then shifted in and out of the |* District by a computer program until a 
precise percentage of minority voters in the disteict was achieved. No other credible explanation 
has been offered. 

The fact that race oe deel in the construction of the 1* District is not surprising, 
The legislators faced the difficult task of remedying the unconstitutional aspects of the 1992 
Plan's 1* District while complying with the mandates of fe Voting Rights Act, discussed below 
Indeed, Senator Cooper acknowledged that he felt he had to have over 50% minority 
representation in the First District. (Trial Transcript at 440) This admission reveals that the 
racial composition of the district was seen as a mandate, a necessity. 

26 

 



    

Mar 07 QQ 04:S6p CHIEF ® BOYLE I 

Thus, we further find that, in its 1997 Plan, the State continued to use race as the 

predominant factor in creating the majority-minority First District, and thus strict scrutiny must 

apply. This does not end our Tm however. Defendants may show that the district was 

narrowly tailored to achieve a compelling government interest. 

Section 2 of the Voting Rights Act provides that "no voting qualification or prerequisite 

to voting or standard, practice, or procedure shall be imposed or applied by any State ...ina 

manner which results in a denial or abridgement of the right of any citizen of the Ladies States to 

vote on account of race or color, .... " 42 U.S.C. § 1973 (2) (1988). Congress instructed the 

courts, when detertnining whether a voting standard, practice, or procedure violates this 

prohibition, to examine "the totality of the circumstances" to ascertain whether "the political 

processes leading to nomination or election” are equally doer to citizens of all races. Id. § 

1973(b). Courts may also consider "[t]he extent to which members of a protected class have besa 

elected to office," but the Act expressly states it does not establish "a right to have members of a 

protected class elected in numbers equal to their proportion in the population.” Id. 

  

In Thomburg v. Gingles, the Supreme Court first examined the 1982 amendments to the 

Act. 478 U.S. 30, 34; 106 S.Ct. 2752, 2758; 92 L.Ed.2d 25 (1986). The Court found that the 

1982 amendments no longer edie a showing of intentional discrimination in order to prove a 

violation of the Act. Id. at 35, 106 S.Ct. at 2753. The Court identified the following "necessary 

preconditions" toa § 2 claim: 

"First, the minority group must be able to demonstrate that it is sufficiently large and 

geographically compact to constitute a majority in a fingle-mumiber district.... Second, the 

minority group must be able to show that it is politically cohesive.... Third, the minority must be 

able to demonstrate that the white majority votes sufficiently as a bloc to enable it--in the 

27 

 



    

Mar 07 0Q 04:56p CHIEF ® BOYLE a — 

. absence of special circumstances, such as the minority candidate running unopposed-- usually to 
defeat the minority's preferred candidate." Gingles, 478 U.S. at 50-5 1,106 8.C: at 2766-67 

(footnotes and internal citations omitted). Once these preconditions are met, a court must 
consider the factors identified in the Senate Report accompanying the 1982 amendments. 1d. at 

43, 106 S.Ct. at 2765." 

Defendants presented evidence at trial to show that there was a strong basis for the 

General Assembly to have believed, at the fime of the 1997 Plan's drafting, that the three Gingles 
preconditions and several of the factors set forth in the Senate Report existed in North Carolina. 

Specifically, the Defendants presented evidence that the African-American population in the 

area encompassed by District | was and is sufficiently large and geographically coboet to 

constitute a majority in a congressional district. Additionally, Defeadants contend, and PlaintifTs 

have stipulated for the purposes of this trial, that the African-American population is politically 

cohesive. Further, Defendants contend, and Plaintiffs have stipulated for the purposes of this 

trial, that the white majority votes sufficiently as a block to often enable it to defeat the 

minority's preferred candidate. Finally, all parties agree that, for many decades, African- 

Americans in North Carolina were victims of racial discrimination, and that a substantial 

  

"Those factors are: (1) the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to 

2d Sess. 28-29 (1982), reprinted in 1982 US.C.CAN. 177, 206-07. This list of factars, however, "is neither comprehensive nor exclusive.” Gingles, 478 U.S. at 43, 106 S.Ct. at 2763. 

28 

 



  

{ 

  

UU uTiaop Lhnier JUUGE BOYLE 

  

a3 Hig 

majority of the State's African-American population is still ata disadvantage in dompiris to 
white citizens with respect to income, housing, Sducalion and health. 

This Court finds that Defendants have prisenied sufficient evidence to establish that the 
State Legislature of North Carolina did have a compelling reason to address race in the 
construction of the First District under the 1997 Plan. That compelling reason was the nead to 
satisfy Section 2 of the Voting Rights Act in order to ensure that the State's Affican-American 
population have equal access to the political process. 

Further, this Court fi %! that the specific composition of the First District's borders, while 
predominated by Iace, was narrowly tailored to meet the Section 2 requirements while also 
addressing other traditional, political considerations, including the desire to protect incumbency, 
both of a Democrat in the First District and a Republican in the Third District. The splitting of 
counties and lack of compactness display the interplay between these considerations: the 

borders were drawn to avoid putting two incumbents in a single district; the State Legislature 

intended to exclude as much of the First State Senatorial District from the 1997 Plan's 1% District 
as possible, resulting in modifications that forced the district's borders south and west. While 
race predominated, the legislature resisted the temptation to create a district reminiscent of the 
1992 Plan's 1" District, which reflected little or no effort to achieve a narrow tailoring. 

Thus, this Court finds that the 1997 Plan's 1% District meets the requisite standard of strict 
scrutiny. ‘Race, while the hatob factor in its composition, was nat impermissibly used in 
establishing its borders. There was a compelling state interest in obtaining pre-clearance under 
Section 2 of the Voting Rights Act, and the 1% District was narrowly tailored to meet this 

interest. Thus we find that the 1997 Plan's I* District does not present an unconstitutional racial 
gerrymander. 

29 

 



    

UU U4:56p CHIEF 1h BOYLE _—— P. | 

CONCLUSION 
  

For the reasons dithisses abave, this Court finds that the 1997 Plan's Twelfth District 

continues to be unconstitutional zs presented. Defendants are enjoined from using the 

unconstitutional District 12 in future elections. The 1997 Plan's First District does not violate | 

the Constitution and may thus be used in future elections. Defendants will have an opportunity 

to correct the constitutional defects in the 1997 Congressional Redistricting Plan stemming from 

the 12" District, in default of which the Court must undertake the task. 

SO ORDERED, 

Ti 
This 27 day of March, 2000. 

TERRENCE W. BOYLE 
Chief United States District Judge 
RICEARD L. VOORHEES 
United States District Judge 

By: Ve insnnes vi : 
TERRENCE W. BOYLE 
CHIEF UNITED STATES DISTRICT JUAOGE 

  

  

feo ~ox; i £3 aie 2nd COImeCt Va Taly Fp tres PRATER 

of the ori Bet 
ii David W. Daniel, Clerk 

United States District Court 
Eastem Digfrict of North Carolina 

_ Har rpn 
Deputy Clerk   

30