Defendants' Response to Court Order

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UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF NORTH CAROLINA FILED 

EASTERN DIVISION 4 Po 

an 
Civil Action No. 4-96-CV-104-BO(3) DAvip yy, , % 

Ee 
MARTIN CROMARTIE, et al, eA 

) 
Plaintiffs, ) 

) 
v. ) 

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

) 
Defendants. ) 

DEFENDANTS’ RESPONSE TO 3 APRIL 1998 
COURT ORDER 

On 3 April 1998, the Court directed the parties to file written submissions addressing (a) an 

appropriate time period for allowing the General Assembly to correct the constitutional defects in 

the 1997 Congressional plan, and (b) a proposed election schedule for congressional elections after 

redistricting. Defendants’ counsel have conferred with the leadership of the North Carolina General 

Assembly regarding the Court's request. 

his the opinion of the leadership of the North Carolina House and Senate that the General 

Arseny desires to and in fact has a duty to attempt to redraw the State's congressional plan. 

However, the Court’s order directing the panies to submit a timetable for redrawing the 

Congresions] plan and a proposed election schedule was not received by defendants’ counsel until 

after the close of business on April 3rd, and the two chambers of the General Assembly have not had 

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. an adequate opportunity to consider and discuss the full implications of the Court’s order intemally 

or r with each other and 10 prepay a substantive response by Wednesday, April 8th. 

At the request of the General Assembly, defendants respectfully request the Court to allow 

‘the leadership of the House and Senate additional time to consider the questions raised by the Cour. 

Additional time is requested in part because the Cours has not issued ts memoranda identifying the 

constitutional defects it has found in District 12. Plaintiffs offered at least two theories for finding 

District 12 unconstitutional: (1) the fruit of the poisonous tree, and (2) the predominance of racial 

considerations. The size of the task facing the General Assembly, and the time e needed to perform 

that wk, will differ depending on the theory which is the basis for the Court's ruling invalidating 

District 12. 

In addition, the defendantshave filed an emergency applicationto the United States Supreme 

Court seeking to stay the Court's order pending al The legislative leadership needs the benefit 

: of thar Court’s ruling on the sway application before making irrevocable and costly public policy 

: decisions about the election. In addition to the myriad of technical details involved in establishing 

a new election schedule, a decision must be made whether the other federal, state and local 

primaries, as well as bond issues and other seSironiia scheduled for May Sth should continue to go 

forward, or be postponed to coincide with the new schedule for congressional primaries. Either 

choice poses serious policy questions and administrative complications. It may already be 100 late 

in the campaign process to delay all of the State's other primaries. These are matters implicating 

important public interests and cannot be decided without proper discussion and consideration. A 

new congressional election schedule, resolving filing dates, absentee balloting dates, possible 

elimination of the second primary and other administrative details, cannot be finalized before 
, 

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decisions on the State's other primaries are made. The cost to the taxpayers in terms of dollars, 

“confusion and frustration must be given careful consideration. 
% 

The defendantsand the General Assembly are well aware that time is of the essence, but wish 

to avoid unwise and costly decisions made because of undue haste. For these reasons, the defendants 

respectfully request that the Court allow them to have five work days after the issuance of its 

memorandum opinions to file the necessary timetables and schedules. 

This the 7 i day of pl 1998. 

MICHAEL F. EASLEY 
ATTORNEY GENERAL 

wy ATTN 

Edwin M. Speas, Jr. 
Senior Deputy Attorney General 
N.C. State Bar No. 4112 

lare B. Smiley 
Special Deputy Attorney Gen 
N. C. Sure Bar No. 7119 

Ze S. Harrell 

Special Deputy Attomey General 
N.C. Swate Bar No. 6654 

  

  

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

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CERTIFICATE OF SERVICE 

a ~~ Thisis to centify that | have this day served a copy of the foregoing Defendants’ Response 

to 3 April 1998 Court Order 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 

Anita S. Hodgkiss 
Ferguson, Stein, Wallas, Adkins, 
Gresham & Sumter, P.A. 

741 Kenilworth Avenue 
Charlortie, NC 28204 

ATTORNEYS FOR APPLICANTS FOR INTERVENTION 

This ie 9% day of bal , 1998. 

/ 

are B. Smiley 
Special Deputy Attorney General 

  

   
  

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No. 4.753 
  

In the 

Supreme Court of the United States 
October Term, 1997 

  

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

Governor of the State of Nosth Carolina, et al., 

Petitioners, 

Vv. 

MARTIN CROMARTIE, ef al, 
Respondents. 

  

RESPONSE IN OPPOSITION TO EMERGENCY APPLICATION FOR STAY 

PENDING APPEAL OF THE DECISION OF THE THREE-JUDGE COURT 

FOR THE UNITED STATES DISTRICT COURT FOR THE 

EASTERN DISTRICT OF NORTH CAROLINA 

  

Robinson O. Everett® 
Bverett & Rverett 
P.O. Box 586 
Durham, NC 27702 
Telephone: (919) 682-3691 

Marlin B. McGee 
Williams, Boger, Grady. Davis 

& Tuttle, PA. 
P.O. Box 810 
Concord, NC 28026-0810 
Telephone: (704) 7R?-1173 

* Counseg! of Racord 

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TABLE OF CONTENTS 

TABLE OF AUTHORITIES . ..............0s OT CEL EB Te il 

INTRODUCTION cee castes srosnniasiss srr anny on get Ten CORE li eh ] 

STATEMENT OR PACTS oss rersannsrsrunnsrnsunsivonssnsins eon wae Hd A 2 

A. THEOVERTURNINGOFTHEI992PLAN......cvvovvvnernnennnnss. 2 

B. AFTERMATHOFSHAWIN .......ccoovivirennnrninn.n, ELE 5 

C.  THECROMARTIEY, HUNTSUIY.. ...couresaessisros. sedsrsossvnss)s 7 

D. THE HEARING ON MARCH 31,1898.,........... Ra ia EWR 10 

ARGUMENT AGAINST GRANTING ASTAY ................, THEIR, Tidy SR 11 

SUMMARY OR ARGUMENT... isis irrtnsdarsrssnss stasis ios inns 1 

I. THE STANDARD IS DEMANDING FOR GRANT OF AN IN-CHAMBERS 
APPLICATIONFORASTAY ........ccount..n., ESOT LONE Th Choe 13 

I. THE JUDGMENT OF THE DISTRICT COURT WAS NOT INBRROR .........., 14 

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

B. NORTH CAROLINA'S RACE-BASED 1997 CONGRESSIONAL PLAN 
VIOLATRS THE PRECEPTSOF SHAW ..............cocoveviannnnnn, 24 

IL THE BALANCE OF EQUITIES IS AGAINST GRANTING ASTAY ............. 28 

CONCLUSION Lis seen bas rr treats cos sr iss svnen ER a 30 

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TABLK OF AUTHORITIES 

CASES 

Gregory-Poriland Indep, Sch. Dist. v. United States, 448 U.S, 1342 (1980) ........ emraes 14 

In Re Rech O. Shaw, 1118.80 SJB)... coi cern edinnns nemesis ion sss vans 6 

Kastigar v. Unlsed States, 406 US. 441 (1972) oven eA 15 

Lucus v. sownsena, 4a U.S. 1301 (1985), 

Nardone v. United States, 308 U.S. 338 (1939). ver vevnn enon is eI lets ae seis a 18 

Paps v. Blue, 809 F.Supp. 392 (W.D.N.C. 1992), 
summarily affirmed 506 U.S. 801, 113 S.Ct. 30 (1952) 

Powers v. Ohlo, 499 U.S. 400, 111 §.Ct. 1364 (1991) 

Reynolds v. Sims, 377 U.S. 533 (1964) 

Shaw v. Reno, S09 U.S. 630, 113 S.Ct. 2816 (1992) 

Snspp v. United States, 444 U.S. S07 (1980) 

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Thomburg v. Gingley, 478 U.S_30 (1986). .... ne rans ies rad tes a A | 

US. v. North, S10 Rad B43 MDC. Clr. JOY. cvs sv rrnavnnnvns annnavsnssswnss ve 1§ 

United States v. Wade, 388 U.S. 218(1967) .................\. eRe PER We 

Whalen v. ROB, 83 1). 131303078)... vines ens ivnrissunniniincernvsvnnrivtns ae 13 

Willlams v. Zbaraz, 442 U.S, 1309 (1970)... oii titer tena ianars 14 

Wong Sun v. United States, 371 U.S. 471 (1963). ....cooiiiit ionic ire ns ena 15 

STATUTES 

Yuliug aglils Aw, +43 Uuse& 1390 Phar Ev van Ure cn RE Nop ag -. 3, 10, 48 

lif 

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No. A753 

  

  

In the 

Supreme Court of the United States 
October Term, 1997 

  

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

Petitioners, 

V. 

MARTIN CROMARTIE, eral, 

Respondents. 

  

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

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

Tor the Honnrahle William H. KRenhngujct, Chief Juatios of tha Tinited Srairs mal Nicult 

Justice for the Fourth Circuit: 

INTRODUCTION 

~ On April 6, 1998, the Petitioners filed thelr emergency application for a stay pending 

appeal of the summary judgment, preliminary injunction, and permanent injunction granted to 

Plalnill-Respuudenias by the three<judgs coun tor the United States District Court for the Eastern 

District of North Carolina on April 3. 1998. On that xumn day. tha Petitianers requected the 

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

the emergency application for a stay {3 simply another effort by the Defendant-Petitioness to 

postpone the elimination of racially gerrymandsred congressional districts in North Carolina and 

would inflict addinonal injury to the constitutional rights of the Plaintiff-Respondents, they file 

this opposition. 

The Court is quite familiar with the uncoastiwutional racially gerrymandered 

congressional districts that the North Carolina Generel Assembly created in 1992. Indeod, the 

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

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

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

map of the 1997 districts, the “new" plan perpetuates muny of the worst features of the earlier 

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

unpéreuagive” to the Court as was the defendants’ contention In Shaw v. Hunt, 517 U.S. 899, 

— 116 8,Ct. 1894, 1906 (1996) hereinafter “Shaw II) that the former Twelfth District was 

“narrowly tailored." 

STATEMENT OF FACTS 

A. The Overturning of the 1992 Plan 

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

review of the evolution of the congressional racial gerrymander in North Carolina after the 1990 

ocnsus. Ialtlally, a sualinbiindiog pln way ndupied by thé Lsansral Acosmbly in LUV] which 

contained a single majority-black district, locared in the northeastem part of the State. On 

Nacamher 18, 1991, the Department of Justloo applying an unconstitulivual “wariuization™ 

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interpretation of Section 5 of the Voting Rights Act, 42 U.S.C. 1973b ~ denied preclearance for 

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

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

was the “serpentine” Twelfth District, that stretched along 1-85 from Qastonia to Durham. No 

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

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

A few days thereafter, a sui was commenced attacking the redistricting plan on the 

ground that it wan a political gerrymander: but a three-judge district court dismissed it shortly 

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

113 S.Ct. 30 (1992). At that time, the State defendants’ position was that the plan could not be 

attacked as ® politicul gerrymander because it was really 8 racial gerrymander suthorized by the 

Voting Rights Act. 

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

state and fedoral defendants in which they attacked the redistricting plan as # racial gerrymander 

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

United States Constitution. Their action wus dismissed as 10 all of the defendants; but this ruling 

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

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

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

vote-dilution claim. 509 1.S. at 652." Therofore, if the plaintiffs in that action could prove that 

race was the predominant molive for drawing ths plan, it would be subjected to the tost of “sirict 
  ~ a, 

"Seo also Miller v. Johnson, 115 S.Ct. 2478, 2485 (1995). 

3 

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a Ths case was remanded for trial. 

After extensive discovery, trial commenced late In Murch, 1994. Contrary to their earlier 

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

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

racial gerrymanders, that the diatricts actually were not race-based but reflectad other 

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

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

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

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

were ‘narrowly tailored.” 

On appeal, this Court held that plaintiffs Shaw und Shimm had standing to artack the 

Twelfth Congrassional District since they were registered volers there. Shaw JI, 116 8.C1. at 

1900. However, none of the plainiiffs had standing to challenge the majority-black Fira 

Congressional District since nono were registered voters in thit district. The Opinion of the 

Court by Chief Justice Rehnquist held that nog only had race been the predominant motive for 

drawing the Twelfth Districs, but also that the district failed the tost of “strict scrutiny,” because 

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

interest” under the Voting Rights Act. /d. at 1907. Moreover, under Miller v. Johnson, $18 U.S, 

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

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

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B. Aftermath of Shaw 17 

When the Court rendered its opinion in Shaw I7 on June 13, 1996, the North Casolina 

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

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

pointed out, inter alia, they: (a) in Louisiana, Georgla, and probably Texes, new plans would be 

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

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

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

rata assembled during the long Higusion. ndnauaa infamuarizo, aio wlily gyallible Aa 

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

imposed by the Civil Rights Division in 1991-1992 under iis erronscous interprotation of Section 

5; (c) excellont software was available for preparing a plan; (f) many experts had studied ths 

North Carolina plan and wore available for consultation; (g) since neither party controlled both 

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

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

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

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

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

plan, that person could run in some other district - just as two of the incumbent Representatives 

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

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would result in further litigution and uncertainty.” 

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

addressing the issue of redistricting. Whon Govemor Hunt called the legislators back for a 

further special session to adopt a budget, the Shaw plaintiffs requested the Governor to ask the 

legislator “yo enact now a new redistricting plan for use in the November, [996 general 

clection.””® The Governor took no action; nor did the General Assembly enact a new redistricting 

plan during the special session, 

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

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

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

1996 election; and they offered svidence as to various meuns by which an clection under » new 

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

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

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

  

“This petition to the General Assembly and subsequont efforts by the Shaw plaintiffs to 
obtain a nsw plan for the 1996 eloction are detailed in a Petition for Writ of Mandamus filed in 
the Supreme Court of the United States by the Shaw plaintiffs, wherein they sought an order 
directing the threc-judge district court to prepare {is own radistricting plan for the 1996 eloction 
rather than wait until April 1, 1997 for the General Assembly lo prepare a plan for future 
elections. Sce lu Re Ruth O. Shuw, et al., Petitioners, (No. 98-228), $17 S.Ct. 1Y (1996). The 
bricf was accompanied by various eahibils which provide further detall as to the events which 
followed the Shaw MI decision. 

5n0i100ba WLR thas request WAS an artis published un June 30, 1996 in the “Charlone 
Observer,” wherein the newdpaper reporter described a plan which was “colorblind” and “party- 
blind” and which he had drawn in two hours on the General Assembly public computer. 
Moreover, the plan placed only two incumbents in the same district; and those two incurnbents — 
Rene pant ive Dom Maninh anil halide Wes sestdud ol, 0. Jol patos Ulla, 

6 

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default of which the count would draw {ts own plan. Thereafter, the Shaw plaintiffs filed 8 

petition for a writ of mandamus 10 order the three-judge court lo prepare 8 redistricling plan; but 

this petition was not granted. 

C. The Cromartie v. Hunt Sult 

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

Martin Cromartis and two other plaintiffs instituted the present action in the Basten District of 

North Curolina to have declared unconstitutional the Firat Congressional District, in which they 

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

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

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

decide in this matter.” However, befors any further proceedings toak place, Judge Howard, by 

consent, enicred a sty order to await the outcomes of the Shaw lidgation. Thereafter, by consent, 

that stay was extended from time to time. 

On April 1, 1897, the General Assamhly sithminead a newly rnected redistricting plan to 

the three-judge district court in which Shaw was pending. After the Department of Justice had 

precleared this plan, the three-judge disurict court ordered the pluintiffs-and plaintiff-intervenors 

in Shaw to advise the court by June 10, 1007 “whether they intend to claim tliat thn plug should 

nos be annrayes hy the cone hecninse it Ante nt rine tha canerinitionnl dnfantn ie the fumes plan 

and to jdentify the basis for that claim.” The Shaw plaintiffs responded that thoy believed, “that 

the new plan does not adequately cure the constitutional defocts in the former plan" for “[1}ike its 

] | - ® wwnsss Sw claws © wpH ~J classy) oiled Ww? JjVe JWI VIVe SLIIWL 

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

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

rain ~ elnesvagY Sev TIT paws: 4 LY SWUMLIEN TL BIUULGI Llisy  USUEVE HN CLAIM thst 

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

the constitutionality of the new redistricting plan should be undertaken in a separate action 

maintained by pacsons wh have nluniling * Suhswmently, an September 12, (997, te uw 

Ale cowl fled a pet eanimn Musuisudum Opinion which, 

close[d] by._poting the limited hari nt the approval of the plan that we are 
ripen! {ie give in (he omnes nf thin Hvgordon. Ibs Dupes g uy the deeee ce 
of this civil action as that is defined by the parties and the claims properly before us. 
Huw, thu means that we only approve ihe plan uv un adequate remedy for the 
specific violation of the Individual equal protection rights of those plaintiffs who 
successfully chulienged tho legisluture's ercation of former District 12. Our approval 
thus does not = cannot — run beyond the plan's remedial adequacy with respect to 
those parties and the oqual protection violation found as to former District 12. 

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

59(e) 10 amend certain phrasing in a memorandum opinion; but this motion was never granted. 

After the termination of the Shaw ligation In September 1997, the Plaintiffs in 

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

  

“They pointod out that “{t]he new plan fragments counties and cities unnocessarily, 
ignores communities of interest, and remains bizarre in appearances. The differences between the 
new plan's majority-black Twelfih District and the unconstitutional majority-black Twelfth 
District of the earlier plan are cosmetic, und the creation of ths new Twelfth District was 
predominately motivated by race.” Furthermore, the new Twelfth District and new First District 
each, “Improperly relies on the unconstitutional earlier plan and so violates the principles 
established in Abrams v. Johnson Nos. 95-1425, 93-1460, 1997 U.S. Lexis 3863, which was 
decidod today, June 19, 1997. Likewise, the Twelfth and First Districts in the new plan reflect 
the continuing efforts of the Department of Justice to interpret and apply sections of the Voting 
Rights Act in an unconstitutional manner, and also for this reason the new plan violates Abrams 
v. Johnson." 

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by consent of the partics, "to await the enactment and preclearance of a new redistricting plan 

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

was lodged with the Clerk of Court for the Bastar District of North Carolina; and when an ordar 

dissolving the stay had boen entored an October 17, 1997, the “Amended Complaint and Motion 

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

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

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

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

answer to the amended complaint. 

Near the end of 1997, there also was panding before a three-judge district court in the 

Easwom District of North Carolina a case, Daly v. High, $:97-CV-75-BO, which challenged hot 

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

wnnsiten] hy thn Central Assembly In 1492, £in Taniary 19 1998 Tudga Howard catered an neder 

veliids stander? thimt “Hin Doss nhieu ly Levens mppsingied by tlie Cliel Jude of the Fourth Circul( » 

panel of three. indpes, and Daly v. High includes the North Caroling Congressional Nigiricts Qne 

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

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

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

The amended complaint had itself included a prayer for preliminary injunction 

prohibiting congrassional elections from waking place under the 1997 congressional redistricting 

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

motion for preliminary injunction, and on February 5, 1998, they also moved for summary 

APR 8S ’98 14:34 +7043345654 PAGE. 19 

 



   

  

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judgment. On March 3, 1998, Dofendants responded with their cross-motion for summary 

judgment, 

BD. The Nearing on Mareh 31, 1958 

On March 31, 1998.3 the court conducted a hearing on the vanous motions psnding 

before it. During the hearing, the court had before it 8 map of the 1992 redistricting plan and a 

map of the 1997 plan; and these maps were discussed extensively by connsel in their argnments 

Plaintiffs had submitiad affidavits fram varius aypans; thee. incinded Profeasnr Timothy 

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

oe yesgvere J swillemludegrmive Timbre samebnd doe Bone vn Bony +, EVIE MN. 

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

computer used by the General Assembly in preparing redistricting data. Also before the thres- 

JUage GISINCE CON Word arnaavits from the Chalrs of the House und Sonuw Redlsiriciing 

2 umstiens of fer Non 4 meahune ticovaal damasly an he ae ative fed adasting A Ian, 

After more than two hours of ATgUment by Counsel, With questions by the COU, he IES JUogcs 

ook the motions under sdvissmsit. 

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

judgment and for preliminary and permanent injunctions. The court also requested the parties 10 

file thelr responses by Apri] B, 1998 as to how the elections should be scheduled. On Monday, 

Bed §y Bee london congpanted wba foc the dbl coy 8 (01 QR FRR NRW J JO I Hp VIR 

  

fInirtnlly, a haneing won act for Maroh 16, 1908, hut tho court poatponod tho hoaring until 

Mnunh 31 nn that Mainriffn® anneenl Bakinoan 0 Buosad aonhd canner anfThientlp fevo mgm p 

on February 27, 1998, to allow his meaningful panicipation in the preparation for hearing and the 

hearing itself, 

10 

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also filed in this Court their Emergency Application for a stay. 

© ARGUMENT AGAINST GRANTING A STAY 

Summary of Argument 

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

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

the issues involved has determined that summary judgment should be granted and an injunction 

entered * 

The preceding history of the congressional redistricting litigation in North Carolina 

makes clear that & continuing effort has been made by various plaintiffs 10 overtum ths flagrant 

racial gerrymander. The Court's Opinion in Shaw v. Reno should have made clear the 

handwriting on the wall; bul the State defendants chore to ignore the meaning of that Opinion. 

AS a result, the citizens of North Caroline have been represented in Congress for nsarly six years 

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

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

more years. 

The 1997 plan carries forward many of thes unconstitutionn! features of its 1992 

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

Court = makes clear that the *new” Twelfth District has many similarities with the “old” Twelfth 

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

  SR —— 

“District Judge Voorhees, who joined in the Judgment for Plaintiffs, is capecially familiar 
with the issues raised by North Carolina's racially gerrymandered redistricting. He waz a 
member of the three-judge district court in the Shaw litigation and twice the Supreme Court took 
the position advocated by his dissent in the lower court. Shaw I and Shaw J7. Cenainly he is 
well-positioned to recognize the similarity between the 1992 plan and the 1997 plan. 

11 

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the Shaw argument. These similaritics are sirang “circumstantial evidence” that the mative of 

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

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

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

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

identity is, or should be, predominantly racial.” Bush v. Vera, 116 5.Ct. 1941, 1962 (1996). The 

Defendants’ own evidence makes clear that the 1997 plan was based on the unconstitutional plan 

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

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

S.Ct. 1925, 1932 (1997). Clearly, the 1997 plan is the “fruit of the poisonous tree,” is tainted by 

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

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

the unconstitutional gsrrymunder. They have attempiad to subatitufe for “geographical 

compactness” a concept of “funciional compactness” = which is predicated on racial 

stereotyping. They have ignored the harmy that have already been inflicted upon the voters of 

North Carolina by the past six years of racial gerrymunders — harms which include increase in 

racial polarization and loss of voters’ confidence in the elecloral process and in representatives. 

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

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

exist if a stay is now granted ip enjoining the nse of a plan which has been adjudged 

unconstitutional and illegal. 

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

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

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

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

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

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

Marshall then quoted Justice Powell's decirion in Graves v. Barnes, 405 U.S. 120] (Powell, J. in 

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

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

Id. at 1316-17 (citations omitad). 

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

circumatances,” and that a “judgment of the lower court, which has considered the matier at 

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

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

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

cases, a Circuit Justice will balance the equities to determine whether the injury assarted by the 

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

13 

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

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

an initial inquiry should be whether the five Justices ars likely to conclude that the case was 

erroneously decided below. Williams v. Zbaraz, 442 U.S. 1309 (1979)(Stevons, J., denying 

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

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

II. The Judgment of the District Court Was not in error. 

One of the requirements for granting an application for n stay is that the applicant 

establish that the judgment being appealed was in crror on the merits. Applicants for the stay are 

unshls to present any convincing argument that the district court erred in rendering judgment. 

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

entitled to thelr requested relief. 

; by the 
A. North Carolina’s current Twelfth District la unconstitutionally tainted 

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

Although Respondents and others have occasionally referred to racial gerrymanders as 

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

redistricting Jaw. Nonetheless, there arc Instances when criminal law concepts may have 

relevance to other areas of law. For example, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 

(1986), and Powers v. Ohio, 499 U.S. 400, 111 8.Ct. 1364 (1991), which precluded the 

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

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

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

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tree,” cf. Nardone v. United States, 308 U.S, 338 (1939), is based on a premise equally applicable 

to redistricting — namely, that it must be shown that the taint of ths original wrong-doing has 

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

made after an illegal search); Brown v. lilinots, 422 U.S. $90 (1975)(confession as the “fruit” of 

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

must be shown that the former did not produce the latter. In United States v. Wade, 388 11.5, 218 

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

usc an in-court identification only if it established by “clear and convincing evidence” thas the in- 

court identification was based on observations of the suspect other than the lineup observation. 

Another analogy Is to the protection of a witacss against any derivative use of immunized 

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

Commission, 378 U.S. 52 (1964); U.S. v. North, 910 F.2d B43 (D.C. Cir. 1990). 

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

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

redistricting plan should nos be viewed as being constitutional unless it is shown to have a source 

independent of a prior, unconstitutional plan Which it hus replaced. The Court seams 10 have 

acoepied such a rationale when in Abrams v. Johnson, 113 S.Ct. 1925 (1997), it upheld a coun- 

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

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

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

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

A comparison of maps of the 1992 and 1997 congressional districts in North Caroling 

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reveals that the 1997 plan is inextricably linked to the 1992 plan,’ and therefore {5 

F-408 

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

General Assembly fully confirms this conclusion, ax do the uffidavits of Plaintiffs’ experts. Bven 

the Defendants’ awn evidence makes clear that the current plan is reinted by the earlier plan. For 

cxample, the affidavil of Representative McMahan,® who chalred rhe House Redistricting 

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

need to “preserve the cores of the prior district to the extent consistent with our goal of curing the 

defects In the prior plans.” McMahan affidavit at 2. However, several of the prior districts were 

created 8s an integral part of drawing the racially gerrymandered 1992 plan; and when this is 

considered, Representative McMahan's statemant amounts to sn admission that the 1997 plan is 

tainted by the 1952 plan. 

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

congressional district with Forsyth County ot Guilford County. The 1991 plan alzo did no place 

these counties in the surne district; but after Section 5 preclearance had been denied by the 

Department of Justice in December 1991, a new plan was quickly developed which created the 

infamous "1-85" Twelfth District. Mecklenburg County was linked there with the other two 

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

Department of Section 5 of the Voting Rights Act, 42 U.S.C. 1973b. As the Court ruled in 

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

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

  

"These maps are being lodged with the Court by Respondetits to facilitate comparison. 

This affidavit is Appendix 8 to the Petitioners’ Emargency Application. 

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unconstitutional plan must not be relied upon in attempting to draw a remedial plan. Yet, in the 

instance of the Twelfth District, this seems ta be exuclly what has occurred — namely, an 

unconstitutional, ruce-based plan provided the foundation for the cutrent Twalfth District. 

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

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

Carolina und divided numerous countics = was also an unconstitutional gerrymander and would 

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

district. Moreover, the gerrymandered First and Twelfth Disricts caused a “ripple effect” so that 

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

in the country after 1992. The acknowledged effort to “preserve the cores of these “bizarre” 

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

“fruit of the poisonous tree.” 

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

principles, failure to adhers to those principles is another circumstance that tends to establish that 

it was derived from the earlier plan, which lacked compactness, and also to show that the new 

plan Is race-based. One imponant principle in redistricting is that of geographical compactness. 

Tts Importance was emphasized by the holding in Thomburg v. Gingles, 478 U.S. 30 (1986), that 

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

maintained unless, ulong with other preconditions, it can be shown that a geographically compact 

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

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

"Cooper's affidavit is Appendix 7 (0 Petitioners’ Application. 

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

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

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

redistricting plan at trial and on appeal in the Shaw litigation, the defendants relied 

unsuccessfully on “functional compactness,” 

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

affidevis, is subject to objective measuroment, “‘funational compactness” is a very vague term 

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

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

means the grouping of persons of the sama race and therefore is groundsd on the unconstitutional 

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

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

compactness” in the same misleading munner that the tern was used by the Shaw defendants. 

Senator Cooper specifically defends the Twelfth District because “It was 8 functionally 

compact, highly urban district joining together citizens of Charlote and the cities of the 

Piodmont Urban Triad.” Jd. at 4. The spuriousness of this defense is vividly revealed because in 

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

~ the obvious assumption is that the substantial concentrations of African-Americans in 

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

voters In Greensboro, High Point and Winston-Sulem. The circumstance that, for almost two 

hundred yeers, Mecklenburg County had not been linked in u congressional district with Forsyth 

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

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uncoastivational application by the Justice Department of Section S of the Voting Rights Act, 42 

U.S.C. Sec. 1973b, makes clear tha this joinder is predicated on a pan that Is unconstitutional. 

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

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

Senator Cooper also defends the new First District as “a functionally compact district 

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

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

compactness’ as to the First District would be more plausible if all of the citizens in these 

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

boing divided in the manner described in Lee Mortimer's affiduvit for the Plaintiffs.’ 

The affidavits of both Scnaloy Cooper und Reprosantative McMahan refer (0 a goal of 

maintaining the current partisan balances of six Democrats and slx Republicans in Congress. 

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

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

districts to achiove a yuots mandated by the Voting Rights Division of the Department of Justice. 

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

representatives from North Caroling cun hardly be considersd remedying a constitutional 

violation; instead, it leaves all of the "fruit of the poisonous ree” undisturbed. 

Protecting Incumbents who have been unconstinttionally elected appears as inappropriate 

as {t would be to allow persons to retain property which they had acquired illegally or in violation 

  

'*T'his affidavit is based on dats provided by the General Assembly's public access 
computer. 

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of trust. Cf. Snepp v. United States, 444 U.S. 507 (1980). There scoms to ba an irony in the 

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

filed six affidavits from incumbent members of Congress — all of whom explained how 

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

Defendants submitted no affidavits from any of the cundidates challenging these incumbents. 

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

irrational that protecting them could justify retention of some of the worst features of a plan 

which violated the Equa! Protection Clause of the Fourtsenth Amendment, 

Senator Cooper attempts to defend the Twelfth District because it “is a Democratic island 

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

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

plan end the relatcd domopgraphics. In this connection it must be recognized that 95% of the 

African-Americans who are registered to vote in North Carolina are registered as Democrats. 

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

partisan objectives. However, use of such a disgulse scoms al odds with this pronouncement in 

Bush v. Vera, 116 S.Ct, 1941, 1956 (1596): 

But to the extent that race 1s used as a proxy for political characteristics, a racial 

  

In this connection, see the affidavit of Robinson O. Bverett and the pages attached 
thereto from the transcript of testimony given in the tial of Shaw v. Hunt by Representative 

Mzlvin Watt, Congressman from the Twelfth District und Gerry Cohen, who was the principal 
architect of the 1992 plan. According to Watt, 95% or moro of African-Americans in the state 
who registered to vote were registared as Demoorats. According to Cohen, the psreentage was 
95% or above in “urban” areas, and 97 or 98% in “rural” wreas. The affidavit of Dr. Petérson, 
which is Appendix 10 to the Emergency Application, appears to be fully in line with these 
estimates; and Plaintiffs are unaware of any lower estimates of Democratic registration among 
African-Améeticans in North Cerolina. 

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stereotype requiring strict scrutiny is in opsration.” 

Significantly, an examination of predominately black precincts in Mecklenburg County 

which were placed in the Twelfth District ~ procincts which therefore are also predominately 

Democratic - reveals that, in many instances, they are &ljacent to precincts that were 

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

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

“largely Republican yeu,” but black Democrats were placed in the Twelfth District in order to 

assure that an African-American, Melvin Watt, would be reelected (0 Congress. The same 

observation can be mude with respect to precincts in Guilford and Forsyth Counties, 

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

information'’ ox to several predominately white precinots adjacent to ~ but excluded from - the 

Twelfth Congressional District. As reflected in tho following chart, each of these predominately 

white precincts = which were Democratic preclaets in terms of both registration and 

performance ~ was excluded from the adjacent Twelfth District: 

  

In u somewhat similar vein, the Court pointed out {n Powers v Ohio, supra, that “race 
cannot be a proxy for determining juror bias or compstence.” 

“This demographic information and mups related thereto are attached us Exhibit 9 to the 
Respondents’ appendix. 

“Performance was gauged in relation 10 the results in the celebrated 1990senatorial race 
botwaen incurnbent Senator Jesse Helms und Democratic challenger Harvey Gantt, an African: 
American who had previously been mayor of Charlotte. 

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Brecingt White Populalico DeMosiats 1220 Cait Voie 

Guilford County 
11 80.65% 62.32% 67.51% 

14 82.67% 58.14% 86.91% 

17 85.05% 61.86% 65.08% 

Forsyth County 
1408 70.78% 65.75% 15.46% 
1422 66.66% 76% 15.77% 

1427 78.17% 63.25% 54.85% 

Mecklenburg County 
10 89.23% 63.45% 73.01% 
2! R5.47% 59.45% 60.11% 

38 84.93% 51.82% 54.33% 

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

drawn to assure that a Democrat would be elected to Congress from that district. However, they 

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

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

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

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

majority of the registered Democrats were African-American and it was assumed and intended 

that they would nominate un African-American [n the primary,” 

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

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

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

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

  

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

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were included in the First District; and likewise, “heavy concentrations of Democratic voters in 

Charlotte, Greensboro und Winston-Salem” were placed in the Twelfth District. Senator Coaper 

does not mention that thess “heavy concentrations” were of African-American voters, so that 

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

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

respect, the 1997 redistricting plun retained the taint of the 1992 plan. 

The affidsvit of David W. Patsrson, Ph.D., suggests thas “political affiliation might 

explain as well as, or batter than, rece the boundary of District Twelve” in the new plan. 

Peterson concludcs that “there is a substantial correlation between the path taken by the boundary 

of the Twelfth District and the political praforonces of the residents of the precincts touching thay 

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

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

there is “a substantial carelaiion between the path taken by the boundary of tha Twelfth District 

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

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

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

attributed to political considerations with at least as much statistical certainty as it can be 

attributed to racial considerations.” /bid. This third conclusion is almost inevitable in light of the 

undisputsd fact that ~ as mentioned carlier — 95% or more of the black voters in North Carolina 

are registered as Democrats. Thus, It is always possible to contend that a racial gorrymander ls 

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actually for partisan purposes.’ Much more significant In determining the purpose with which 

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

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

edjacont Democratic-leaning White precincts were often placed in other congressional districts. 

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

has been removed from its counterpart in the 1997 plan. Instead, by cogniting the “substantial 

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

precincts, the affidavit corroborates Plaintiffs' contention that the taint of the original plan sill 

portists with respeer to the Twelfth District. 

B, Nosh Carolina's Raco-Based 1997 Congressional Pian Violates the Precepts 
Shaw. 

In Miller v. Johnson, the Court stated thas: 

plaintiffs’ burden Is to show, either through circumstantial evidence of 8 
district's shape and demographics or mare direct evidance going to legislative 
purpose, that race was the predominant factor motivating the legislature's 
docision to place a significant number of voters within or without a particular 
district. To make this showing, a plaintiff must prove that the legislature 
subordinated tradivonal race neutral districting principles, including but not 
limited wo compactness, contiguity, respect for political subdivisions or 
communities defined by actual shared intarasts, to racial considerations. 

115 8.C1, a1 2488. As the immediately preceding discussion has demonstrated, race continued to 

be the predominant factor in the creation of the “naw” Twelfth District = a5 wall 2s the “new” 

First District = just as it had been a predominant factor in the creation of their 1992 predecessors. 

Even if there hod been no 1992 redistricting plan to provide strong evidence gs to the 

  

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

Al 

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

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

that: 

the only facts plaintiffs presented to support their motion for summary judgmant were 
(1) that District 12 is composed of parts of six counties; (2) that on average 70% of 
the white citizens residing in those coutied are not assigned to Distnicl 12; and (3) that 
on average 70% of the black citizens residing in those six counties are assigned to 
District 12. 

Petitioners’ App. at 13-14, This Is a remarkable “summation” of the 8vidence presented to the 

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

Cirincione, Thomas A. Darling, Dr. Ron Weber, Lee Mortimer, Robinson O. Everett, Martin B. 

McGae, and others. 

The affidavit of Professor O'Rourke, for example, pointed out that of this nation’s 435 

congressional districts, "'[1}f the 1992 rankings had remained unchanged, the new version of the 

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

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

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

neutral districting principles. 

As the Petitioners acknowledgs, the Plaintiff-Respondents established that the naw" 

Twelfth District is compased of parts of six counties. Moreover, it is the only district in North 

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

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

  

"The appendix to this response contains the affidavits of the named persons and many of 
the attachments to those affidavits. 

28 

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subdividing 100 percent of them.” Weber declaration at 35. He further describes the Twelfth 

District in this manner: 

the ratial make-up of the parts of the six sub-divided counties assigned to District 12 
include three with parts aver 30 percent African-American and where in which the 
African-American percentage is undsr 50 percent. 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 
which conwribute almost 78 percent of the district’ total population are located at the 
extremes of the district. The other three county parts (Davidson, Iredell, and Rowan) 
have narrow corridors which were designed to plok up as many African-American 
persons from each of thoge counties to fill out the district to an ideal sized district 

Jd. at 17-18. 

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

lines. Weber declaration st 30, The major cities jn the Twelvth District ~ Charlotte, Greensboro, 

Winston-Salem, High Poinl and Statesville — ase split in this manner. Jd. av 31. The same is une 

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

and Wilson. Ibid. 

At the March 3] hearing, the Plaintiffs presentad evidence that tho 1997 congressional 

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

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

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

Assembly in its 

1998 redistricting plan attaches the northern half of Precinct 77 and all bus one of its 
3,461 persons to Disurlet 12 and leaves the southern half of the precinct — and but a 
single person ~ 10 provide the cgsential connecting link betwasn the two wings of 
District 9. The splitting of Precinct 77 closely resembles what the Supreme Court 
condemnad in Miller, _.__ S.Ct. . that is, the use of “land bridges” and split 
precincts in order to offect a sorting out of parsons slong racial lines. 

  

26 

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

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

Ninth District in Mecklenburg County would not be contiguous. Jbid. 

The Plaintiffs also presontsd evidence that the grouping of "heavy concentrations” of 

black voters in Charlotte, Greensboro, and Winston-Salem was the result of the legislature’s 

predominant racial motive. Charlotte is the center of an entirely diffarent metropolitan area from 

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

different media market from these other three cities; and they have entirely different econamip 

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

the predominant factor motivating the legislature's doclsion to place a significant gumber of 

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

115 S.Ct. ar 2488. 

In Shaw 1, the Court made the point that: 

A reapportionment plan that includes in one district individuals who belong to the 
same race, bul who are otherwise widely separated by geographical and political 
boundaries, and who may have little jn common with one another but the color of 
their gkin, bears an uncomfortable resemblance to political apartheid. It reinforces 
the perception that members of the same racial group - regardless of their age, 
education, sconomic satus, or the community in which thay live - think alike, share 
the same political interests, and will prefer the same candidates at the polls. 

113 S.Ct. at 2828. This passage applies equally ta the “old” and “new” Twelfth District ~ as 

indeed to some of the other districts in the 1992 and 1997 plans, The “community of intarest” 

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

hearing on March 31, 1998 ~ and apparently still rely In this Court — aze really premised on the 

very racial stereotypes that the Court deplored in Shaw I. [bid. 

27 

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It 18 cloar that there 18 no “compelling governmental interest” to support the creation of 

District 12. As a rcsult of the manner in which the African-American population Js dispersed 

throughout North Carolina - to which Justica O'Connor adveried in Shaw I - Section 2 of the 

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

Moreover, the Petitioners do not attempt to defend the Twelfth District on those grounds. 

III. The Balance of Equities {s Against Granting a Stay. 

In Reynolds v. Sims, 377 U.S. §33 (1964), this Court stated that; 

[O)nce a State's legislative apportionment scheme has been found to ba 
unconstitutional, it would be the unusual cass in which a Court would not be justified 
in wking appropriaie action to insure that no further eloctions ars conducted under 
the invalid plan. 

ld. at 583. Peitloners’ application certainly does not present the “unusual! case,” in which the 

Court should stay the action of the lower court. 

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

although promptly and vigorously attacked as 3 violation of Equal Protection — was kept in affact 

for three elections. The “nsw” redistricting plan, onactad on March 31, 1997 - just before the 

deadline wet by the Shaw district court — retained many of the unconstitutional features of the old 

plan; and this was immadiately brought w the attention of the State defendants by the Shaw 

plaintiffs, who, however, had no standing to attack it. Whos, immediately thereaftor, the 

Plaintiff-Respondents filed an smended complaint o set aside the racial gerrymander, the State 

Defendants attempted to disguise the unconstitutional features of tha plan and to argus that the 

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

spurious concept of “functional compactness.” which itself is predicated on racial stereotypes. 

28 

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The threa-judge district coun plerced the disguise, entered summary judgment, granted the 

Plajntitfs an Injunction, and thereaficr refused to stay thar injunction. Under ths circumstances 

here, the Petitioners do not come to this Court with “clean hands." 

Furthermore, they exaggerate the cost and disruption of a deley In the primaries. 

Significantly, during the 1997 Regular Session of the General Assambly, the Senate voted to 

delay primaries to Saptember, rather than conduct tham in May, Moreover, three of the twelve 

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

creation of new districts which are more competitive and goncrate challengers. Purthermore, if 

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

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

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

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

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

with the specifica of this cass. Sec Graves v. Barnes, 405 U.S. at 1204. 

The last section of Petioners' application for a stay reveals the basic fallacy under Which 

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

“no injury will result to Plaintiffs or any other persons if the district court's order is steyed.” In 

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

is causing “represontational” and “stigmatic” injuries; and then they add that “not one shred of 

ovidence was ever presented by the plaintiffs to support that allegation.” Petitioners’ App. 8 17. 

This contantiop reveals a basic misunderstanding of the points emphasized by the Court in jis 

  

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

2 

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| APR-08-08 02:23PM FROM-FERGUSON PY N.WALLAS ADKINS, GRESHAM&SUM 47043345654 ® T-515 P.40/41 F-409 

Opinion in Shaw v. Reno. A voter who is subjected 10 an slactoral process in which race 

predominates cannot prove & tangible loss of money or property; instead the harm to that voter is 

intangible — as is true of the violation of many other constitutional rights. | 

During the Shaw litigation, the State Defendants consistently argued that the plaintiffs 

there had no standing becauss they were while; and the Court consistently rajectad that | 

contention because it concluded that all voters, regardless of race, were entitled [0 protection 

against the unconstitutional racial gerrymanders. If a stay is granted now against the injunction 

entered by tha lower court, ths Shaw messages will be negatad and a new messags will be 

conveyed that the Equal Protection rights of Martin Cromartie, his fellow Plaintiffs, and other 

voters ato really unimponant and can be ignored If the Stats so chooses. Thus, to stay the 

injunction at this point would be a major step backwards from this Court's efforts to move 

towards a raore colorblind society. 

CONCLUSION 

Por the foregoing reasons, Respondents regpectfully submit that the Petitioners’ 

Emergency Application for Stay should be denied. 

30 

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APR-09-98 02:23PM  FROM-FERGUSON,STEIN,WALLAS ADKINS, GRESHAM&SUM  +7043345654 

! $ r 

Respectfully submined, this the 9” day of April, 1998. 

7-515 P.41/41 F-408 

- 

Robinson O. Everen® 

Evarett & Everst 

Stats Bar No.: 1389 : 

As Attorney for the Plaintiffs 

P.O. Box 586 
Durham, NC 27702 

Telephone: (919)-682-5691 

Williams, A. 

    

    
by: 

arin B. McGee 
State Bar No.: 22198 
Attorneys for the Plaintiffs 
P.O. Box 810 

Concord. NC 28026-0810 ; 

Telephone: (704)-782-117 : na 

31 

a22ENDww mw 

APR B39 ’S8 14:40 +7043345654 PRGE. 41 

 



   APR-08-98 02:13PM  FROM-FERGUSON,STEIN,WALLAS ADKINS, GRESHAMASUM  +7043345654 T-515 P.06/41 F-408 

  

  

  

          
  

  

rost-it® Fax Note 001 

a Co Co. 

Phone Phone & 

Foxd Faxs 

iy NO, A783 

In the 

Supreme Court of the United Stutes 
October Term, 1997 

  

JAMES B. HUNT, JR, in his official capacity as 
Governor of the State of North Carolina, e? ql., 

Petitioners, 

Vv. 

MARTIN CROMARTIE, er al., 
Respondents. 

  

CERTIFICATE OF SERVICE 
  

1 certify that I have this ninth day of April, 1998 caused to be served on Petitionors the 
faregning Rnepanes in Nppocition to Emesgsasy Applisatian for Dis, Muding Appaal uf lle 
Decision of the Ihree-Judge Court for the United States District Coun for the Raster District of 
North Garnling hy Waving a copy miniled. posiuge pmanaid, by United Sato 2duil to the Soliswing 
addressee: 

Mr. Edwin M. Speas, Jr., Esq. 
Suuiur Deputy Astorney Gencnd 
Nui lh Cuvling Deparment of Justice 
P.O. Box 629 
Raluigls ME 7600 ya " we ai] 

Robinson O. Everett* 
Attorney for the Plaintiff-Respondants 
P.O. Box 586 
Durham, NC 27702 
Telephone: (919) 682-5691 

  

* Counsel of Reoord 

APR 239 98 14:31 +7043345654 PRGE. 86